{-}-{
་་མག་པ
ARTES
LIBRARY
LEGATU
181
VERITAS
UNIVERSITY OF MICHIGAN
SLLAVESTE
MARINKODOTTI YUkaebusëvethenbe
TEBOR
QUA HIS PENINFL
ENN
SCIENTIA
OF THE
LAW
SCHOOL
LEEPŠAN
AME NAM
CUKRIN
10m.
A TREATISE

ON THE
9/14/01
C + Co.
LAW OF ATTACHMENTS
IN CIVIL CASES:
17917
THE LEADING STATUTORY PROVISIONS OF THE SEVERAL STATES
AND TERRITORIES OF THE UNITED STATES IN RELA-
TION TO SUITS BY ATTACHMENT,
AND
TOGETHER WITH
FW LIBRARYO
COLLECTION OF FORMS.
BY
S. F. KNEELAND,
OF THE NEW YORK BAR;
UNIVERSITY OF
MICHIGAN
Finis on ɔraɛ opus.
AUTHOR OF “A TREATISE ON MECHANICS' LIENS," "THE COMMERCIAL
LAW REGISTER," &C.
Law Publishers
231 BROADWAY
1885
•
NEW YORK
DIOSSY AND COMPANY
Entered according to act of Congress in the year 1884,
By S. F. KNEELAND,
In the Office of the Librarian of Congress at Washington.
!
PRESS OF HENRY M. TOBITT, 42 DEY ST., N. Y.
*
TO
THE YOUNG MEMBERS OF THE BAR,
THIS WORK
IS
RESPECTFULLY DEDICATED;
WITH
THE AUTHOR's Hope
THAT
THEIR ACTIONS MAY ALWAYS PROVE WORTHY,
THEIR ATTACHMENTS ENDURING,
AND
THEIR JUDGMENTS FRUITFUL.
ट्रे
PREFACE.
Ir is no easy matter for an attorney in full practice to
glean therefrom sufficient time for the proper construction of
a legal treatise upon any topic. But to none other should be
given the task where the subject relates to a branch of the
law occupying so much of our professional toil as that of
Attachments. It is obvious that the farmer who daily guides
the plow through the rocky, turf-bound soil, may discourse
more profitably thereon than the professor who sits on the
fence and reasons the matter out from the relationship of
cause and effect as evidenced by the geometrical angles of
boulder and plowshare.
If I could as fully assure myself of the beneficial result
of my labors in this respect as I can of the need of a proper
treatise having special reference to the Practice of At-
tachments, I would be satisfied, indeed. But to him who is
minded to be hypercritical I advise, by way of amusement,
that he construct, from bed-rock, in the few breathing spells
of active professional life, a new treatise on the same or a
kindred subject, and thus give me the privilege of turning
critic as to the results.
To give full credit for the aids received herein, would be
to call the roll of text-writers and jurists; but special acknowl-
edgment must be given to Judge Drake, who, for the quar-
*
.[vii]
viii
PREFACE.
ter of a century has been well considered as authority on this
topic. I have also availed myself of Freeman's most excel-
lent work on Executions in the portions applicable to that
subject, and, by courteous permission of Mr. Abbott, of his
works in the construction of a system of Forms under the
New Code of this State. Thanks are also extended to J.
H. Hubbell, Esq., and to Messrs. Douglas & Minton, in the
preparation of the Statutes of the several States relating to
Attachments and Exemptions.
Recognizing the fact that next in value to a full statement
of the law is the means of securing the information on
a given point in the shortest possible time, I have arranged
both page and sectional headings throughout the body of the
work and supplemented the same by a full Table of Contents
and an exhaustive Index.
NEW YORK, September 20th, 1884.
S. F. K.
Section
TABLE OF CONTENTS.
CHAPTER I.
NATURE AND HISTORY OF ATTACHMENT.
1..Definitions, and nature of the process.
2..Attachment against property..
8.. Character of the writ. Is it a statutory remedy and entitled
to a strict construction ?..
8..So held by the American courts, but the correctness of the
rule doubted...
4.. Originated in the civil and preserved by the common law;
statement of the ancient Roman procedure....
5..Embodied in the Institutes of Justinian..
5..note..Description of the process by Gaius..……………….
6.." In Adams " Roman Antiquities....
7..Provisions in the Pandects relating to absconding debtors..
8..Attachment under the common law; Blackstone traces the com-
mon law system back to the civil law; two successive
writs at common law; attachment or original and dis-
tringas
"
..
9..Description of distringas..
10..History of the common law system..
11..Distinction between distringas and "Attachiamenta Bon-
orum
Page
1
Q
...
2
8
3
4
a a a ak
5
6
7
8
12..The ordinary custom under the capias.....
8
18..Attachment existed in the common law procedure when it
became the basis of the American jurisprudence...
14..Citation to English reports showing the existence of the pro-
cess thereafter....
9
10
15..Citation to English statutes to the same effect………
16..Description of the common-law system in Tidd's Practice... 11
17..Attachment by process of " Outlawry "
11
•
12
18..The Scotch system described in Erskine's Institutes………………….
19.. The Irish system of foreign attachment……
20..The French system under the "Code Napoleon," and the
Spanish practice.....
Attachment.
[ix],
1
13
TABLE OF CONTENTS.
B
Section
21..Other localities where civil law attachment prevails....
22–3.. Under the customs of London, foreign attachments, analogy 14
between the system at common law, and under London
customs....
...
24..Other cities containing customs similar to that of London..
25.. The American system; The “New England Grab Law ”…….
26.."Foreign attachments" in Pennsylvania and Maryland.....
Analogous to London custom....
27..Garnishment or "Trustee Process "
82.. Under the revised statutes.
$3.. 16 66 Justices Act..
84.. (8
19
28..The "Absconding Debtor's Act" of 1715..
29..The common law system recognized by the American courts
and contrasted with our process...
80..The distinction between foreign and domestic attachments. 20
81.. The system in New York prior to the adoption of the new
code...
"Code...
35..Application of the several systems; the present procedure
under the new code…………
CHAPTER II.
THE RIGHT OF ACTION.
36..Attachment must be founded upon an existing right of action.
Maturity of claim.
87..The element of time waived in some states.
38..Importance of correct information relating to maturity of
liabilities
....
...
89.. Rule 1.-Expiration of limited period..
40.. Premature, if commenced on last day named….
41..No default until succeeding day.
42.: Exception to this rule....
43..Effect of a previous refusal.
44..Rule II.-Surety cannot sue until original liability is satis-
...
··
Page
14
15
16
16
ance..
52..Application of the rule……….
53..Not affected by statute of frauds........
17
17
17
18
20
21
21
21
22
** ******
29
23
23
24
24
24
24
25
fied.....
45.Application of the rule to commercial paper..
46..Premature suit not cured by payment at maturity.
26
47. Rule 111.-Acceptance of note usually an extension of credit 26
48..Statement of rule and exceptions by Lord Kenyon......………
49.. Application to attachments in United States courts.........
50..Fraud vitiates extension, and revives original claim.......
51..Rule IV.—Entirety of promise requires entirety of perform-
28
28
22805
26
2223
28
29
.*29
TABLE OF CONTENTS.
ri
Ex
Section
pi
54..Accounting under an entire contract..
55..Rule V.-Credit avoided by fraud, or non-performance of con-
dition precedent
56..Application of rule where sale conditional on payment by
notes....
...
57..Where debtor defeats agreement to give further credit..
58..No recovery "on the contract" before maturity without
proving refusal to comply with terms of credit.....
59..Effect of breach of contract in a special case........
60..Meaning of term "equitably due," as applicable to attach-
ments....
...
...
74..Opinion of Ch. Justice Story.
75..Weight of American decisions support attachment in such
叁
​...
79..And in Iowa....
80..But denied in Pennsylvania..
actions..
76..Upheld in old supreme court in Lenox . Howland
77..And the same principle recognized by the court of appeals in
a recent case ......
78..Same rule in Connecticut and Indiana.
··
...
..
…………. ....
CHAPTER IIL
ACTIONS EX DELICTO.
84
..
61.. Cause of action must be within the statute...
62..Discrimination of the courts against actions founded on tort 34
63..Reason and extent of the rule……….
35
64-5..Should only bar such actions wherein amount of damages
is too uncertain to be correctly specified..
66..Statute of 1866 and New Code extend the rule to all except
personal torts………..
87
67 Breach of Duty. Are actions for the negligent loss of goods by
common carrier “on contract” within the former statute.
68..The supreme court decision in Atlantic Mut. Ins. Co. v. Mc-
Loon denying attachment in such cases......
69.. Criticisms upon this rule; distinction between public and
private duties; opposite to the opinion of Ch. Justice Sav-
age, and to the spirit of Court of Appeals decisions....
70..Such actions not exclusively ex delicto..
71..English doctrine as to "breach of duty",
73.. Original contract must be alleged and proved in such cases., 42
73..Common law action of debt would be.
42
43
1.
Page
29
8 88
80
30
80
81
31
82
36
37
38
*******
89
40
41
44
45
47
48
48
49
81..Pennsylvania rule not applicable to Code states....
50
82.. Effect of waiving tort and declaring on the implied contract. 50
88..Distinction between case and assumpsit.
84..Form of complaint evidencing election.
8885
50
51
rii
TABLE OF CONTENTS.
锄
​Section
85..Election extends to pure torts....
86..Application of the rule of election....
...
··
87.. Does the right of election extend to conversion?.
88..Attachments not applicable to breach of promise cases...... 53
89.. Attachment in actions for conversion....
Page
51
....
•
···
52
*****
90..Actions for fraud under the Old Code not within the statute. 54
91..“Injury to property," application of the term to attachments 55
93.. Fraudulent representations in procuring money or goods in-
cluded in the term....
57
Case of Witner v. Von Minden to the contrary explained... 56
Citation to cases establishing the rule cs above claimed..
93.. Conversion by public officer; necessity for extended grounds of
attachment to actions in tort..
94..General rules applicable to actions ex delicto..
CHAPTER IV.
ACTİONS IN WHICH THE DAMAGES ARE UNLIQUIDATED.
95. Attachments not allowed where damages discretionary with
jury........
96..Its application in actions ex contractu
97.. The general rule formulated
98..Contingent damages too remote, as a basis for the warrant..
99.. Rule applied to actions for accounting..
100..Extent of rule in New York state……….
101..Exceptions to the rule stated....
102.. The contract must furnish the rule of damages
103..Application to actions for penalties...
104. Application to actions for loss of goods.
105..And special warranties.....
106..Application of the rule where attachments are limited to
52
53
39889985
55
88888
58
59
*********88 8588
61
61
62
63
"debts."
107..In actions for negligence
108-9.Damages for breach of contract..
110..Application of rule to the Code of Civil Procedure……………………. 68
64
64
65
65
66
66
67
68
CHAPTER V.
SUITS IN EQUITY.
111..Not applicable to equity proceedings
69
112.. But not prohibited by equity relief in a money judgment... 70
113.. Quere, whether applicable to foreclosures. .
70
114..So allowed in Iowa...
71
115.. Distinction between equity relief and equity debts.......... 72
116..Applicability to contracts payable in goods..
117..Same rule in Georgia....
78
78
Attachments.
ZZZZZZ:
TABLE OF CONTENTS.
xiii
CHAPTER VL.
ACTIONS ON JUDGMENTS.
Section
118.. Foreign judgments, when¨attachment will not lie upon......
119.. Application of new Code to domestic judgments...
120.. Quere. Is a judgment a "contract".
121..So held to be in Georgia, California and Massachusetts, and
incidentally in this state........
122..In New York justices' judgments are held to be contracts...
123-4.. But in both New York and California judgments held
not to create a new contract.
....
•
76
125 Judge Sutherland's opinion, "In no sense a contract"..... 76
126-8..Followed in Massachusetts, Illinois and North Carolina... 78
129.. Want of mutuality in such a case........
79
180.. The common law rule; Blackstone, the author of the classifi-
cation among contracts; the rule then unsettled, but
subsequently held, by King's Bench, not to be a contract,
and that is the accepted common-law doctrine…….
181.. Quere. Shall Blackstone or precedent be followed ?..
132-3..Judgment is a debt and "ex contractu.”……..
134. Summarized statement of the American rule...............
GROUNDS OF ATTACHMENT.
CHAPTER VIII.
Page
74
74
75
75
76
CHAPTER VII.
ACTIONS ON PENALTIES.
135..Penalties created by act of parties, when attachment lie...... 84
136..May issue in action on undertaking…….
84
187..But has been denied on agreements, where damages are un-
liquidated...
188..And also on collateral bonds..
139..Penalties fixed by the statute
140.. Quere. Are statutory penalties contracts ?
141..In New York penaltics recovered in assumpsit by statute...
...80-1
82
88
83
88888
85
85
86
86
FOREIGN CORPORATIONS.
142..General statement as to grounds of attachment...
143..Corporations attached by distringas at common law.......
144..Distinction between domestic and foreign corporations..... 89
145..Foreign corporations may gain a quasi domicil in this state.. 89
8888
xiv
TABLE OF CONTENTS.
Section
146.. Are national banks foreign corporations..
147..The rule under the New Code..
148..Insolvent national banks exempt from attachment..
149..Effect of converting state into national banks……………………
150.. General rules relating to actions against foreign corpora-
tions....
151..The remedy under the Old Code…………
152..When non-resident plaintiffs could attach.
153..Meaning of the term " Cause of action urose" within the
State...
154..The cause of action is the breach of entry
155..It arises where such breach occurs.....
156..Rule where no place of payment specified
157..Rule in case of accommodation paper..
157..Rule in case of torts...
....
..
158..Meaning of the term "subject of action is situated" within the
state. Refers to property within the state.
159..Equivalent to New Code requirement of “
property situated"
within the state..
CHAPTER IX.
...
160..Supreme court rule "Cause of action" and "Subject of
action " synonymous, criticised...
161.. Provisions of New Code in such cases...
162.. The system under the former Revised Statutes..
163..The provisions of the New Code…………
164..How all difficulty may be avoided.......
•
NON-RESIDENT DEBTORS.
165..Non-residents not liable to attachment at common law......
165..Distringas only applied to residents.....
166..Foreign attachments under the customs of London applied
to both residents and non-residents..
167..In this country courts divided as to meaning of term "non-
resident"
•
Page
90
91
92
93
**
..
94
94
94
៩៩៩ ទី ឌ ៖ ៖ ៖ ៖ ៖ ន ឌ ឌ
100
100
101
102
102
103
105
106
107
107
168..Object of the law………
169.. Quere, are the terms “residence" and "domicil” synonymous? 108
170..Derivation of the two words.
.. 108
106
171..Residence should be determined by facts, without regard to
.: 109
intent...
172..The rule in New York state...
173..Domicil-General rules of construction..
174..1st, The domicil of origin...
.114, 115
175..2nd, Constructive domicil of minors and married women 116, 117
176..3rd, Domicil of choice—the union of act and intent....118, 119
110, 111
.112, 113
TABLE OF CONTENTS.
IV
•
Section
122
177..4th, Presumptions in designating a domicil.
178..5th, Presumptions designate but do not always determine.. 120
179..6th, Every person has a domicil and but one...
180..7th, The acquisition and retention of a domicil...
181..Suggestions as to harmonizing the New York decisions……….. 122
182..resident may become a non-resident without changing his domi-
122
cil...
182..So held in Mississippi..
183..Maryland..
184..Wisconsin..
....
utes....
191..And in other states...
..
185-186, Pennsylvania
187..Kansas.
188.. New York...
189..Statement of general rule as to non-residence....
190..Construction of term "non-residence" under other stat-
...
..
192..General statement as to residence and domicil………
193..The New Jersey rule-non-resident, one who cannot be
served.....
194..How far the question of intent is material..
195.."Resident" not synonymous with "inhabitant”,
196..Non-residence, though temporary, must be fixed.
197.. Quasi non-residence, when residents may be attached for ab-
sence..
CHAPTER X.
··
..
··
ABSCONDING AND CONCEALED DEBTORS.
199..The original ground of the Roman and English system of
attachment
206..Insolvency and secrecy...
207.. What is sufficient proof of............
Page
120
131
198..Statute does not apply to supreme or superior city courts... 132
208..Prolonged absence; false representations..
209..Flight to avoid criminal prosecution; effect of return
210..Secret departure under assumed name.....…………………
123
123
128
123
124
124
124
125
126
127
128
133
134
……….. 134
200..The domestic attachment of the American system.
201..Similarity of terms "absconding" and "concealment",
202.. To constitute “absconding," departure must be secret...……. 134
203.. With intent to defraud to avoid service.....
204..All the circumstances relating to departure may be shown
to prove intent..
135
···
205..Indications of an intent to abscond.
129
129
130
135
135
136
137
187
138
138
*
xvi
TABLE OF CONTENTS.
Section
211..General rules:-Actual departure necessary; statute not appli-
cable to debtors about to abscond......
139
139
140
212.. Must abscond from usual place of abode...............
213..Concealment must be to avoid "civil" process...
214.. Not essential that service should be actually avoided... 140
215..Terms "absconding" and "concealment" may be joined.. 141
216..Avoiding or resisting service a concealment
217..Actual intent necessary to be shown..
141
142
218. Rule where debtor's departure is connected with threats of
suit against him, or with a sale of his business..
219.. Or with false statements as to the point of departure........
220..And a transfer of his property...
221..If purpose of concealment is clear, length of time concealed
is immaterial....
CHAPTER XI.
..
•••
·
•
222..Cannot abscond by proxy; departure of partner will not
affect the entire firm.....
146
223.. May issue in such case against the interest of absconding co-
partner.
146
229.. Under new code the term "any" property is used,
230..Turning property into cash a "disposition".
231..Meaning of the term "about to" dispose of. Refers to the
immediate future..
W type. How
THE FRAUDULENT DISPOSITION OF PROPERTY.
148
149
224..History of property clause in attachments..
225. Meaning of the term "HIS property
226..Has been held to refer to any portion of his assets......... 149
227..In Illinois by statutory provision it must be sufficient to
injure creditors..
228..Same principle held in Mississippi and Tennessee, under the
ordinary clause....
150
..
•
Page
....
insolvent..
240..(2) Reducing stock without discharging debts.............
143
143
144
145
**
t
152
232.. Held not synonymous with "will" dispose of............. 153
233..Nor with "will" convert....
154
234..Rule applicable where there is a present intent to make a
fraudulent disposition.....
154
235..Removal that is temporary or in usual course of business not
within the statute....
155
236..Application of rule to vessels plying between specified ports 156
287..Fraudulent intent; what facts must be proved………….
156
838.. Circumstances indicating the fraud must be shown.......... 157
238..These circumstances comprise: (1) Sales below cost while
...
150
151
151
157
156
TABLE OF CONTENTS.
xvii
A
Section
241..Defendant's statements in respect thereto...
242..(3) False representations and deceitful promises...
243..Debtor's admissions of fraudulent acts......
244..Implied admissions..
245.. What admissions are held insufficient.........
246..Fraudulent transfer to copartner..
247..Concealment and secret removal of property..
248.. General assignment not a fraudulent disposition, though a
delay to creditors.......
166
249.. What threats to assign not within the statute.............. 167,
250.. What threats will justify attachment…...
169
261.. General principles applicable to grounds of attachment.... 171
252..Analytical classification of grounds of attachment.......... 172
258..First-Extent of proof required
177
254..Second-Mode of proof; admission...
178
178
255.. Third-Mode of proof; circumstances....
256..Fourth-Indications of a design to defraud creditors are.... 178
178
178
179
....
...
(a) Insolvency.
(b) Secrecy........
(c) Unusual haste.
(d) Falsehoods
179
(e) Fraud in one of a series of connecting transactions... 179
Character of debtor and previous acts of insolvency. 179
PARTIES TO THE ACTION.
CHAPTER XIL
..
THE PLAINTIFF.
257..The general rule as to partics plaintiff...
258. Former limitation as to non-residents in actions against non-
resident defendants...
..
CHAPTER XIII
Page
159
160
161
163
163
164
165
181
181
259..Extent of the rule under the R. S.
260.. Present limitations as to foreign corporation defendants.... 182
261.. The rule in the absence of statutory limitations....
182
262..Several creditors with distinct claims cannot unite as plaint-
iffs to secure attachments.
*»*»***
181
183
THE DEFENDANT.
Personal Representatives.
268..Attachment not lie against, except in certain cases.......... 184
264..The rule as to foreign executors and administrators......... 185
B
xviii
TABLE OF CONTENTS.
T
Section
Page
265.. When attachment lies against non-resident heirs for debt of
the decedent...
186
266..Debts of decedent having priority over attachments......... 186
267.. When will issue against executors or administrators individ-
ually...
268..Not lie against a decedent or defunct corporatiou
269..Effect of death-pendente lite and after levy.......
270..Attachment survives if considered a lien..................188
271..Justice Story's rule in bankruptcy cases.................... 188
189
272..Effect of the lien in such cases..
273..Attachment will not lie against a foreign receiver........... 189
ATTACHMENT AGAINST COPARTNERS.
191
274..Rule as to liabilities of partners..
275..Extent of individual interests in partnership property. 191
276..When possession of firm property may be taken on execu-
tion against one partner individually.
277. Same rule applies in attachment cases.
278..Extent of this rule.......
297..
298..
299..
CHAPTER XIV.
66
46
··
192
192
193
194
195
196
279.. Same rule applies to joint debtors...
280..And to those liable jointly and severally..
281..But not applicable to copartnership credits....
282..The rule as to secret and dormant partners.
283. As to limited partnerships and special partners.
284..Effect of withdrawal of capital by special partner....
285-6.Attachments against insolvent limited partnerships........ 209
197
199
... 206
66
294..Foreign corporations.....
295..How far charter rights are protectory..
296..Applicability of rule to domestic corporations.………………
26 "foreign corporations...
"national banks....
66
46
** insolvent corporations...
CHAPTER XV.
THE DEFENDANT-CORPORATIONS.
287..Are domestic corporations liable to attachment 1.
288..New York legislation on this question.....
289..The case of American Glass Silvering Co.....
290-2..Criticisms thereon..
293..Corporations included in the terms "persons" and "inhab-
itants"....
···
....
...
..
..
•
1
187
187
187
{་་
211
211
213
212-17
217
218
218
219
219
220
220
TABLE OF CONTENTS.
xix
7
Section
CHAPTER XVI.
UNINCORPORATED ASSOCIATIONS AND STOCKHOLDERS.
800..Unincorporated associations.....
801..Their nature and characteristics.....
302.. Usually sued in the name of president or treasurer.
303..Associations other than joint stock companies....
304..Charitable and social organizations..
305..Former distinction between joint stock companies and other
associations...
225
306..Application of attachment to suits against associations. 225
807.. What constitutes non-residence in such cases..
226
308..Attachment in suits against a stockholder for his individual
PROPERTY SUBJECT TO ATTACHMENT.
CHAPTER XVII.
PERSONAL PROPERTY.
310..Covers all property liable under execution..
811.. And all assignable assets.
812.. Exceptions to the rule-copyrights and patents
$13..Models and materials therefor.
314.. Patented manufactured articles..
---
315..Equitable exemptions......
316..Books of account and private papers..
A
...
817..Perishable property...
818..Same-Is the owner's interest attachable f..
debts.....
227
809.. Attachment against stockholders for corporation debts...... 227
··
•
819.. Public property.
...
$20.. Private property of municipal corporations.
321.. Property devoted to public use.
•
822.. Private property in actual use.
323..Choses in action.....
824.What interest in property is subject to levy.
825.. Property covered by chattel mortgage.
826.. Property pledged as collateral security
827..Effect of conditional or incomplete transfers.
828..Joint and several interests in property.
829..Under what circumstances fixtures are attachable as person-
··
...
Page
222
223
223
224
224
229
229
231
231
231
233
233
234
235
235
236
237
238
238
241
242
243
245
246
alty.
247
880..Character of the annexation....
248
881 How far the intent of the parties will prevail..
249
*
832,.When the products of the soil are leviable as personalty……….. 250
838. The rule in the case of emblements.
251
XX
TABLE OF CONTENTS.
Section
CHAPTER XVIII.
FRAUDULENT TRANSFERS OF PROPERTY.
Page
253
334..Transfer made to hinder, delay, or defraud creditors..
335..Limitations of the foregoing rule....
253
836..Extent of the rule....
253
837.. What instruments are fraudulent as to attaching creditors.. 256
338..Fraudulent conveyances…….
258
260
339.. An assignment for the benefit of creditors..
840..What facts renders an assignment void on its face..
841.. Presumption of fraud in general assignments..
342.. Colorable acts not apparent in the instrument.
343..Extrinsic fraud must be proved, not presumed..
844.. How far affected by the band and schedules..
345..General assignment by a solvent person...
346..Assignments by partners...
347..Defective executions of assignments...
348..Assignment by partners and co-tenants must be executed by
all the parties interested therein……….
849..The acknowledgment...
350..Change of possession. Rule in general assignments and
other transfers...
•
...
....
•
CHAPTER XIX.
REAL ESTATE.
861..History of law as to levies upon realty..
862..Pre-requisites to such a levy..
863..What constitutes an attachable interest therein.
364..Interest of a purchaser at sheriff's sale.
865..Interest of mortgagor of lands...........………….
366..When leviable at suit of mortgagee….
367..When an absolute transfer is a mortgage....
…………
··
270
851..Same distinetion between absolute and conditional sales.... 278
352..Exceptions to the rule…….
274
275
276
278
279
353..The rule in the case of a sheriff's sale...
354..The change must be "immediate" and "continued."
855..What facts constitute a legal change of possession.
356..How the presumption of fraud may be rebutted
857..The effect of a fraudulent purchase of goods
358..Fraudulent suppression of fact of insolvency..
359..Effect of false representations...
860.. What constitutes a legal transfer by a corporation......... 283
280
281
282
868.. The mortgagee's interest not leviable as realty……
369.. When the vendor has a leviable title....
..
....
261
263
265
265
266
267
268
269
266
270
284
284
285
286
287
287
288
288
289
TABLE OF CONTENTS.
XXI
Section
370..Rule at common law and in New York.....
871..Exceptions to the rule....
372.. When vendor's interest is leviable.......
373..Trust estates-common law rule...
874..Provisions of N. Y. Rev. Statutes...
375..Rules relating to express trusts.........
16 "resulting trusts.
"beneficial and trust powers.
"estates in expectancy..
879..Marital rights-tenancy by curtesy.
-dower interests.
880.. 66
381..Tenants in common-heirs and devisees...
382..Peculiarities of a levy upon realty.,.
876.. 66
377.. "
878.. 66
66
66
66
··
66
66
CHAPTER XX.
STATUTORY EXEMPTIONS.
66
802
883..Origin of statutory exemptions...
384.. Usually applicable to householders and inhabitants........ 808
385..Meaning of term "householder."
886.. 66
66 "head family.".
387..Special provisions applicable to married women, servants,
804
805
etc.
66
806
307
808
310
888..Not applicable to actions for purchase money.
889 .Waiver of exemption......
390..Effect of waiver in advance.
891.. Rules of construction applicable to exemption laws........ 811
892..What is included in the term "team."
393..
312
66
64
66
394.. 66
"working tools.".
"household furniture.”,
"wearing apparel.".
"stock, feed and provisions.". 821
66
395..
820
896..
897.. What constitutes a “homestead.”
898..What is included therein...
823
824
899..The limit in value…..
826
400..The character of the title........
327
828
401.. What constitutes an abandonment of a homestead.
402..Against what debts this exemption is applicable...
829
66
""
•
18
...
...
408..Rules applicable to garnishment.....
404 .Only applies to leviable property..
...
PROPERTY SUBJECT TO GARNISHMENT.
CHAPTER XXI.
PROPERTY IN POSSESSION OF THIRD PARTIES.
Page
289
•
290
201
291
292
292
293
294
296,
297
298
298
800
314
818
831
832
xxii
TABLE OF CONTENTS.
Section
405..Property charged with liens....
406..The rule as to "instruments for the payment of money. 833
407..Non-resident debtors and bailees..
835
837
887
838
408.. Garnishee must have possession of the property.
409.. When bank accounts are attachable..
410..Not applicable to property in custodia legis…….
......
411..This rule protects property held by sheriff under another
levy.......
414..As to proceeds of sale under void attachment......
415.. When rule applies to deposits in court.
416.. 66
ians....
46
66
838
412..And in some cases the money realized therefrom........... 839
413..The New York rule in such cases. . . .
841
842
342
417.. When rule applies to public officers....
418.. 66
66 "trustees and receivers..
"executors, administrators, and guard-
CHAPTER XXII
CHOSES IN ACTION.
419..General principles applicable to attachment of debts………………….
420..The New York rule in such cases.
421..Character of debts. Right of action must be absolute...
422..Claims ex delicto and for unliquidated damages..
423..Claims in litigation or judgment..
424..Joint and several liabilities……….
425..Partnership outstandings...
426..Claims due to several jointly...
427..Liabilities upon negotiable paper.....
428..Unnegotiable notes and assigned claims.
429..What constitutes an assignment..
480..Same-Exceptional cases.....
431..Effect of a fraudulent assignment of debts..
432.. When notice of assignment is necessary.
·
...
PRACTICE.
•
...
CHAPTER XXIII.
··
THE AFFIDAVITS.
433..General principles relating to.......
434..Necessity and nature of an affidavit.
435..Must legally prove jurisdictional facts….
486..Proof of fact and intent........
Page
832
...
847
848
848
... 850
851
851
353
854
857
858
359
860
861
862
864
865
866
867
867
368
869
TABLE OF CONTENTS.
* xxiii
Section
437.. Hori and by whom facts should be proven...
438..Statements on information and belief........
439..Reasons for not presenting affidavit of informant...
440..Not necessary to procure compulsory deposition....
441.. Formal statements, the title venue and jurat........
412..Designating the affiant…….
443..Statement of the cause of action..
444.. Maturity of the claim...
445..Statement of the amount due over and above all counter-
claims....
445.. Who may make this statement.
445..The form of the statement.....
446..Statement of the grounds of attachment..
CHAPTER XXIV.
...
THE UNDERTAking warrant and subseqUENT PROCEEDINGS.
The undertaking.
459..Requisites of warrant...
460.. When, and by whom granted..
461..To be valid, summons must be served in 80 days..
462 .When waived by personal appearance.
463..What constitutes such service
··
...
Page
870
871
371
872
873
873
874
877
883
447..Undertaking necessary in a valid attachment..
448..Time when it must be executed..
884
449..Form of the undertaking...
884
450..Statutory requirements-the sureties..………………………………………………. 385
452..Amount of bond. Acknowledgments, etc..
886
453..Amendment of undertaking..
887
888
454..Liability of sureties, extent of............
455..Liability, how enforced....
889
456.. When counsel fees are covered by...
889
891
•
457.. When damages to property are covered by
458.. General principles relation to actions on undertakings……………. 892
The warrant.-Service of summons.
878
879
881
882
893
894
895
395
896
397
..897
464..Effect of failure to serve summons.
465..When second warrant may issue..
466.. When attachment and arrest may issue simultaneously.......808
467.. Warrant against a public officer..
468.. When it will issue against plaintiff..
899
400
CHAPTER XXV.
EXECUTION OF THE WARRANT.
469..Duty of the sheriff—immediate action………..
401
169.. Reasonable diligence in discovering goods required........ 403
xxiv
·TABLE OF CONTENTS.
Section
470..Rule where there is a "confusion of goods".
471..Proceedings where attached property is claimed by third
..
...
parties..
472.. Mode of attaching property.
472..Real estate filing lis pendens.
473.. What is a sufficient description..
474..Movable personal property..
475..Securing control of goods...
··
475.. When dwelling-houses may be broken open.
475..Rule as to breaking open inner doors, safe deposit vaults,
trunks, boxes, etc …….
408
476.. How property incapable of manual delivery may be levied.. 409
477..Contents and service of notice in such cases.
....
409
410
....
··
478..Effect of notice……….
479..Certificate to be furnished by third party indebted or hold-
ing property.
………..
411
418
480..Effect of refusal; examination by the court or referee... 412
480..Rules governing the examination..
481..Collecting attached debts by the sheriff
481.. When the plaintiff may unite as plaintiff with the sheriff... 416
482..Sheriff must first secure a valid lien upon the debt or prop-
415
erty..
...
483..Sheriff must file inventory of attached goods.
483..Effect of failure to file same....
496..Duty and liability of receiptor...
497..Terms of receipt as affecting his liability.
487..When same may be sold.....
488..Rule when several warrants are levied on same vessel or a
··
Page
403
..
417
418
419
484..Must sell perishable property....
419
485..Attachment of vessels and of goods thereon-domestic vessels... 420
486..Attachment of foreign vessels..
421
422
403
404
404
405
406
407
408
...
share therein.
423
489.. Attachment of goods on vessels......…………………………
425
490.. What property may be levied on.......
426
426
427
...
490..Levy upon stock or interest in corporations.
491.. Custody of attached property.
491..Must remain in sheriff's control..
492..Otherwise levy becomes dormant.
428
428
430
431
493.. Character of possession necessary to uphold levy
494..Sheriff's liability in respect to attached property.
494.. Usually held to reasonable degree of care and diligence only. 431
494.. Rule not applicable when left in defendants care...
495.. Property in custody of receiptor....
495..Receiptor stands in the relation of bailee to the sheriff.
432
433
434
485
436
TABLE OF CONTENTS.
XXV
Section
Page
498.. Not liable until there is an inability or refusal to deliver at-
tached goods.....
499.. Under what circumstances he can raise the question of title
to the property..
499.. What defenses he makes in an action for conversion.
500..Rule of damages therein..
501..Nature and extent of sheriff's liability for laches, or official
misconduct
502..Priority among attaching creditors.
....
503.. 66 between attachments and executions..
504.. When priority is lost by dormancy..
504..How lost by fraud or defective practice....
505.. How lost by change in pleadings or process..
506..Duties of sheriff after judgment..
507..To whom execution issues.......
508..Application of proceeds....
66
508..
....
64
CHAPTER XXVI.
VACATING ATTACHMENTS.
··
450
66 in case of death of attachment
debtor...
509..Restoration of property to defendant.
510..Cancelling lia pendens....
450
451
511..Sheriff's return....、、、、
452
512..Trial of right to hold property fraudulently transferred..... 453
512..Applies to tangible assets but not to mere credits....... 454
512.. Quere, can the attaching creditor maintain a bill to vacate as-
signments of tangible property attached............... 45 56
··
618.. Mode of vacating attachments.,
514.. For defects in original papers
515..Time when the motion should be made...........……………………
516.. By whom made the defendant...
517.."
subsequent lienors and purchasers..
518.. Founded on answering affidavits.....
519.. Additional proofs by plaintiff.
520..Character of such proofs..
66
46
521. Principles governing the decision of the courts..
522..Discharge of attachment by filing bonds.....
523..Liability of sureties in such a case…..
524..Application by one of several defendants..
525..Filing bond and justification of sureties.
526. Application where partner is sued individually...
...
··
437
438
439
441
442
442
443
444
445
446
447
448
448
457
457
458
458
459
460
460
461
461
462
463
464
465
466
A
xxvi
TABLE OF CONTENTS.
+
CHAPTER XXVII.
FORMS IN ATTACHMENT.
Affidavit for Attachment, The Title..
Formal averments..
Statement of cause of action……….
Ground of attachment, foreign corporation
Non-residence..
Absconding..
Removal of property
Fraudulent disposition of property.
Fraudulent general assignment..
"About to" dispose of property..
Wrongful conversion of public funds.
Undertaking on attachment...
66
Warrant of attachment....
#6
66
...
...
482
483
for wrongful conversion of public funds..... 488
Notice to bind real property.
Sheriff's certificate and notice to third parties.
Same where funds in broker's hands,
484
485
486-7
Sheriff's return to attachment.
Inventory of goods attached.
Order for sale of perishable property.
►
···
Certificates by third parties....
Undertaking to hold goods in carrier's hands....................
Undertaking to claim domestic vessel...
Order discharging vessel from attachment..
Affidavit to secure discharge of foreign vessel.
Order to show cause thereon...
··
487
488
489
490
491
491
492
498
494
495
496
496
Motion to vacate attachment, modify warrant or increase security.. 497
498
Motion to discharge on filing security..
Undertaking to discharge attachment.
Order discharging same.
498
499
Affidavit to procure discharge as to firm property..
500
Undertaking in same.
501
Affidavit to procure discharge of non-leviable partnership property. 501
Corroborating affidavits.
503
Order discharging same.
504
Undertaking by claimant therein......
Order discharging vessel for want of proper undertaking……..
Affidavit for leave to be made plaintiff with sheriff….
Order authorizing same....
....
··
Page
468
468-9
469
470
470
471
472
478-4
··
475
476-7
477-9
480-1
TABLE OF CONTENTS.
xxvii
STATUTORY PROVISIONS RELATING TO ATTACH-
MENTS AND EXEMPTIONS.
CHAPTER XXVIII.
LAWS OF THE SEVERAL STATES AND TERRITORIES RELATING TO AT-
TACHMENTS..
505--560
...
TABLE OF CASES...
INDEX....
INDEX OF FORMS...
CHAPTER XXIX.
LAWS OF THE SEVERAL States and TERRITORIES RELATING TO
EXEMPTIONS...
560-619
A
...
621
698
719
THE
LAW OF ATTACHMENT.
CHAPTER I.
NATURE AND HISTORY OF ATTACHMENT.
§ 1. Definition. Attachment, from the law latin attach-
iamentum,' signifies a seizure or taking possession.
In law,
the writ of attachment is a judicial writ or precept commanding
the seizure of the person or property of the defendant therein
named.' Under the common law, the process lay against the
The root attachiare was evidently coined out of the old French
attacher, a verb signifying "to attach," "to tie or bind to," but in law,
a process for the collection of rent, or tribute authorizing the seizure by
force of the products of the soil as a forfeiture, in case payment is in de-
fault. Skeat gives attacher as the derivative of the modern term, attach-
ment. Du Fresne supposes the word attacher to have been in turn de-
rived from the old Gallic tascu, taschia, denoting the rent of lands or
tenements, from which comes the British "tasc," tribute, "tascyd,"
collector of tribute, and the modern task (formerly tasque), a self-imposed
duty. Chief Justice Hosmer traces the word attacher to the Latin attingo,
to touch; for the purpose of showing that tangible possession should be
taken of the goods attached. (See Hollister v. Goodale, 8 Conn. 832.)
The Du Fresne theory has the better support, however.
⚫ Cowell defines it thus: "To take or apprehend by command of a
writ or precept." Burrill denotes it as "a taking or seizure of person
or property."
1
[1]
2
THE LAW OF ATTACHMENT.
Definition.
defendant alone,' or solely against his property' or, at the same
time, against both person and property.' In the New England
States, attachments sometimes run in the alternative, thus:
"You are hereby commanded to attach the goods, chattels, or
estate of John Doe (the debtor), and in default thereof, to
take his body, etc." With this exception, attachments in
this country proceed either against the person for contempt,
or against the property for the protection or security of the
creditor; the writs being distinct and separate, both in their
nature and the object to be accomplished. In this treatise, I
shall confine our investigation to the system of attachment
against property.
§ 2. An Attachment Against Property may be termed the
preliminary arrest of the defendant's property for the eventual
satisfaction of the plaintiff's claim.*
The distinguishing feature of an attachment process arises
from the fact that by it the goods of a debtor are seized before
he has an opportunity to be heard upon the alleged indebted-
ness, and before its validity has been judicially tested by a trial
The writ of attachment was granted against attorneys or the parties
to an action at law for a contempt of court, 4 Black. 283, and in Chau-
cery it is the first process after default or contempt, 3 Black. 443, 444;
4 Stephen's Commentaries, 20; in this country, attachments lie against
the person only for a contempt in fact, and not for a mere default.
* Comyn's Dig. Tit. "Pr. Attachment of Goods;" Crone v. Odell, 2
Moll. 844.
• 3 Black. Com. 280; Blackit . Crisrop, 1 Ld. Raymond, 278; Co-
myn's Digest, Pr. "Attachment of Goods." So in Crone v. Odell, 2
Moll. 844, the court held that an attachment against the defendant for
non-payment and a sequestration of his property, for the same cause,
may be enforced at one and, the same time.
* This definition is taken partly from the designation used by Drake
in his excellent work on attachments at the commencement of § 1: “The
preliminary attachment of a debtor's property for the eventual satis-
faction of the demand of a creditor," and partly from the definition
given by our courts of an attachment under the Code: “An order in an
action for the arrest of the debtor's property in the nature of bail for the
payment of such judgment as the plaintiff may obtain." Houghton v.
Ault, 16 How, Pr. 77; Floyd e. Blake, 19 Id. 542.
NATURE AND HISTORY OF ATTACHMENT.
.CO
•
The Rule of Strict Construction,
or determined by a judgment of the court. In its nature and
effect it may, therefore, be designated as an anticipatory levy,
whereby the property of the defendant is seized, pendente lite,
as security for the enforcement of the proposed judgment.'
§ 3. The Modern Rule of Strict Construction. It seems to
be established beyond dispute that attachnient, as an original
or mesne process, is an American innovation upon the orderly
procedure at common law; and, being in derogation thereof,
the statutes creating the remedy must receive a strict and tech-
nical construction.*
The only basis for this rule of construction being the
alleged trespass upon the sacred domains of that system of
laws inherited or stolen by us from Mother England, it neces-
sarily follows that if this allegation is unfounded, and if, per
contra, we do but mitigate the severity of a pre-existing sys-
tem of common law attachments, then the reason for the rule
disappearing, the rule itself should fall, and a liberal construc-
tion prevail. My position on this point running counter to the
accepted doctrine, I shall consider in extenso the history of
this procedure from its conception in the civil law to the full
fruition under the American system.
¹ It is in the nature of a proceeding in rem, Stone v. Miller, 62 Barb.
430; Mankin v. Chandler, 2 Brock. 125; American Bank v. Rollins, 99
Mass. 313; MeGee v. Beirno, 89 Pa. St. 50. Except under the New Eng-
land system, it is a provisional or ancillary remedy in and dependent
on an independent suit, Furman . Walter, 13 How. 348; Buckley v.
Lowry, 2 Mich. 418; Frankenheimer v. Slocum, 24 Ala. 873; Fech-
heimer. Hays, 11 Ind. 478; Marsh v. Williams, 63 N. C. 871; Toms
*. Warson, 66 Id. 417; Duncan . Wickliffe, 4 Metc. (Ky.)118; Maxwell
. Lea, 6 Heisk. (Tenn.), 247; Excelsior Fork Co. v. Lukens, 88 Ind. 438.
* Matter of Denny, 2 Hill, 220; Rowle v. Hoare, 61 Barb. 266; Hay-
wood . Collins, 60 Ill. 328; Barksdale v. Hendrie, 2 P. & H. (Va.) 43;
Groce v. Rittenbery, 14 Ga. 232: McPherson v. Snowden, 19 Md. 197;
Tiffany v. Glover, 8 G. Green, 887; Poole. Webster, 3 Metc. (Ky.) 278;
Wilkie . Jones, 1 Moor (Iowa) 97; Humphrey v. Wood, Wright (Ohio)
666; Wooster v. McGee, 1 Tex. 17; Buckley . Lowry, 2 Mich. 418;
Leak v. Moorman, Phill. (N. C.) L. 168; Caldwell v. Haley, 8 Tex. 817;
May . Baker, 15 Ill. 89; Campbell v. Hall, McCahon (Kas.) 53; Parker
v. Scott, 64 N. C. 118; Frellson v. Stewart, 14 La. Ann. 882.
4
THE LAW OF ATTACHMENT.
Under the Civil Law.
§ 4. Attachment Under the Civil Law. The earliest system-
atized procedure for the enforcement of civil rights under the
Roman law, was termed the legis actio. This existed prior to
the Christian Era, and was an ancient system in the days of
Cicero. Under this, the first process was a summons, or vocatio
in jus,' which was granted by the praetors. The vocatio was
followed by the process proper, which was either a vadimonium,'
by which the defendant was required to name a recuperator
or give sureties; or a sponsio by which goods were taken as
a pledge for his appearance in court. If the defendant did not
appear, the bonds and pledges were forfeited, and under a
writ of missio in possessionem, the plaintiff was placed in pos-
session of the defendant's property. "Ei," says Cicero,
"absenta omnia vitae ornamenta per summum dedecus et igno-
miniam deripi convenit." By the terms of the condictio,
the vadimonium or sponsio was made the original process,
and, if not obeyed, the plaintiff might seize all the goods of
his adversary. It will be hereafter noticed how closely this
system represents the old attachment under the Revised Stat-
utes of New York. It applied only to absconding or insolvent
debtors, allowed a seizure of their property upon the insti-
In the earliest period of the legis actio the vocatio was a mere verbal
process executed in an original, striking manner, the description where-
of has often puzzled the classic student. The plaintiff, upon meeting
the defendant, would command him to follow him to court. If he re-
fused, the plaintiff, first calling the bystanders to witness by touching
them on the ear (Horace Serm. I., Lat. 9, V. 74), would drag him into
court in any manner he pleased. "Si in jus vocat ni id antestator igitor
em capito." Tab. 1, 4. See also Plautius Cuercuclio V., s. 2, 23.
• That women could be hauled into court "in jus" in the Decem-
viral times is clear from Livy's narrative of Virginia, III., 44.
It must have required some skill to prepare the Vadimoníum, as
Cicero, in one of his letters, Ad. Q. Fratrem, II., 15, speaks of Cæsar's
satisfaction of the presence of Trebatius, because he knew not “in tanta
multitudine eorum, qui una essent, quemquam fuisse qui Vadimonium
concipere posset."
• Cicero Pro. Quinct. Cap. 20.
• Id. Cap. 14.
NATURE AND HISTORY OF ATTACHMENT.
5
10
Under the Civil Law.
tution of the proceeding, and a distribution thereof among the
creditors pro tanto.*
85. The Institutes and Digest of Justinian, compiled some
four centuries later, retain many of these provisions of pre-
liminary attachments, and add to the list another process
against absconding or concealed debtors. Thus in Dig. 42,
1, we find the following: "Praetor ait: qui fraudationis causa
latitabit, si bono viri arbitratu non defendetur ejus bona pos-
sideri vendique jubebo."*
§ 6. Secreting. Adams, in his Roman Antiquities, cites a
somewhat similar provision in the Roman law: "It was un-
lawful to force any person to court from his own house, because
a man's house was esteemed his sanctuary (tutisse meum refu-
gium et receptaculum). But if any man lurked at home to elude
a prosecution (si fraudationis causa latitaret), he was summoned
three times, with an interval of ten days between each sum-
mons, by the voice of a herald, or by letters, or by the edict of
the praetor, and if he still did not appear (se non siseret), the
prosecutor was put in possession of his effects."*
7. Absconding. This provision was extended to abscond-
ing as well as concealed debtors. The Pandects of Justinian
contains a provision by which, if the defendant absconds so
that service of the citation can have no effect, the plaintiff may
immediately attach the goods of his adversary-" Mittitur
adversarius in possessionem bonorum ejus.”
"The estate of one insolvent," says Gaius, "may be sold either in
his lifetime, or after his death. It is sold in his lifetime, when, for in-
stance, he defrauds his creditors by absconding, or when he is absent
and undefended, or when he avails himself of the lex Julia and sur-
renders his estate." Gaius Elem'ts, 3, § 78.
"The praetor says, if a man secrete himself with intent to defraud
his creditors, and is not defended by a procurator who gives security
approved by an arbitrator, I will order his property to be seized and
sold.”
Dig. 2, 4, 19. See also 3 Black, Com. 280.
THE LAW OF ATTACHMENT.
§ 8. Attachments Under the Common Law. According to
their usual practice, the Romans carried to England their laws
and customs, and engrafted their jurisprudence upon the rude
methods of the Britons. The eagles of Rome live only in
history, but her jurisprudence still impresses the world with
its wisdom and its justice.
"In like manner," says Blackstone,' "as in the civil law, the
first process is by personal citation 'in jus vocandi :' (Dig. 2, 4,
1.) If the defendant disobeys this verbal monition, the next
process is by writ of attachment, or pone, so called from
the words of the writ per vadium, et salvos plegios."
This is founded upon the defaults and issues out of
the Common Pleas, "and thereby the sheriff is com-
manded to attach him by taking guge, that is, certain of
his goods which he shall forfeit if he doth not appear; or by
making him find safe pledges or sureties who shall be amerced
in case of his non-appearance. This is also the first and im-
mediate process, without any previous summons in actions of
trespass, vi et armis, or for other injuries, which, though not
forcible, are yet trespasses against the peace as deceit and
conspiracy, where the violence of the wrong requires a more
speedy remedy; and, therefore, the original writ commands
the defendant to be at once attached without any precedent
warning."
¹ 3 Blackstone's Commentaries, 280.
The following form of the writ of attachment is given by Black-
stone in the appendix to Book III.: "George the Second, etc., to the
sheriff, etc. Put by gage and safe pledges Charles Long, late of Bur-
ford, Gentleman, that he be before our justices at Westminster, on the
to answer to William Burton of a plea that he ren-
der to him £200 which he owes him, and unjustly detains as he saith,
and to show wherefore he was not before our justices at Westminster as
he was summoned, etc."
etc.
•
· dura
Under the Common Law.
·
It will be noticed, both from the terms used, "vadium" and
"plegios," that the writ of attachment was taken directly from the
united writs of “Vadimonium " and "Sponsio" of the civil law.
48 Black, 280; 1 Tidd's Practice, 110.
NATURE AND HISTORY OF ATTACHMENT.
IN
Under the Common Law.
§9. Distringas. "If, after attachment, the defendant neglects
to appear, he not only forfeits this security, but is, moreover,
further to be compelled by writ of distringas, or distress infin-
ite, which is a process commanding the sheriff to distrain the
defendant by all his lands and chattels." It will be seen
from the form given below that the sheriff is put in possession
of all the property of the defendant. Under the first distrin-
gas he is usually ordered to dispose of, or, as it is termed,
return issues," to the amount of 408. Then, upon an alias,
the issues are ordered to be increased to the full amount of the
debt, if it is under £50; but if over that amount £50 was
returned on the alias, and the remainder on the third or pluries
distringas.
§ 10. Origin in the Common Law. Attachment, as a civil
process, has existed in England from that indefinite period
whence "the mind of man runneth not to the contrary."
Fleta, whose writings are cotemporaneous with the reign of
Edward the First, treats it as an established procedure, and
thus distinguishes it from the distringas: "A distress takes
hold of immovable things, as lands and tenements, and prop-
erly belongs to real actions, but an attachment taketh posses-
sion of things movable, and hath place in personal actions."
' 1 Tidd's Practice, 110; 8 Blackstone's Commentaries, 280; Finch L.
852; Statute of Westm. 2 Ch. 29; 2 Inst. 453; 5 Mod. 117. Blackstone
gives us the following form for a distringas: "George the Second, etc.,
to the sheriff of Oxfordshire Greeting. We command you that you dis-
train Charles Long, late of Burford, gentleman, by all his lands and
chattels within your bailiwick, so that neither he, nor any one through
him, may lay hands on the same, until you shall receive from us another
command thereupon, and that you answer to us of the issues of the same,
and that you have his body before our justices at Westminster from the
day of Easter in fifteen days, to answer to William Burton of a plea that
he render to him two hundred pounds which he owes him and unjustly
detains as he saith, and of his many defaults. Witness, Sir John Willes,
Knight, at Westminster, the 12th day of February, the 28th year of our
reign." The substance of this writ is still preserved in the New Eog-
land form of attachments.
A
.00
THE LAW OF ATTACHMENT.
•
Under the Common Law.
We also find provisions for the writ embodied in that grand
codification of laws prepared under the direct supervision of
Edward the Fifth, which gained that monarch the title of
“The Justinian of the Common Law." It continued a part of
the English system of laws, until supplanted by the Civil Pro-
cedure Act adopted under the present reign.
§ 11. Origin of Distringas and Attachiamenta Bonorum. The
writ of distringas is co-existent with that of attachment, but
formerly the distress was only taken upon the products or issues
of real estate, and the writ of attachiamenta bonorum was used
to attach goods and chattels.' The latter writ, as a separate
process, gradually came into disuse, and the distringas was
extended to the case of personal property.*
812. Capias. "This," say both Blackstone and Tidd,' speak-
ing of summons, attachment, distringas, and capias, or order
of arrest, which follows the distringas, "is the regular and
ordinary method of process. But it is now usual in practice to
sue out the capias on the first instance, upon a supposed return
of the sheriff, and afterward a fictitious original (attachment) is
drawn up, if the party is called upon so to do, with a proper
return thereon, in order to give the proceedings the color of
regularity." As it was considered hard to imprison a man
under the capias for a fictitious default, it was enacted that the
sheriff shall only personally serve the capias, with a notice to
the defendant, in writing, to appear by his attorney in court to
defend the action, reducing it to a mere summons, which, by a
legal fiction, takes the place of the original summons.
§ 13. Such was the condition of affairs when we inherited
the common law of Englahd. The writs of attachment and
¹ See Jacob's Law Dictionary, "Attachiaments Bonorum," Cowell's
Interpreter, Id., and cases cited.
• Statute of Westminster, 8 Ch. 29.
• Blackstone's Commentaries were written before, and Tidd's Practice
long after, the Declaration of Independence.
NATURE AND HISTORY OF ATTACHMENT.' 9
Under the Common Law.
distringas were still in use, and valid, and formed the only
process used in actions against corporations, who could not be
cited personally, and in the case of peers and members of par-
liament, who were exempt from arrest in civil actions; but a
capias, as modified by statute, was practically the first process,
and has always been so used in this country. This gradual dis-
use of attachment and distringas seems to have led to the
erroneous idea that they never existed at common law.
8 14. That the procedure was in full force for a long time
subsequent to our adoption of the common law, is obvious from
the chain of decisions thereon in the reports of Bosanquet,
Puller and Taunton. The case of Gurney v. Hardenberg,
decided in the Common Pleas, February 11, 1809, exhibits the
workings of this process, and the opinion of the judges upon
its character and efficiency. The defendant's property was
levied under a distringas while he was detained a prisoner in
Paris, and therefore without the jurisdiction of the court. It
appeared further, that his business was carried on and the debt
contracted in London, by his wife, acting during his absence
as his agent under a general power of attorney. The defend-
ant's counsel obtained a rule nisi to set aside the writ and the
subsequent proceedings thereupon, and to restore the issues
which had been levied by virtue thereof; and contended in
support of the rule that the process of distringas is founded
upon the supposition that the defendant is guilty of a contempt
of the summons of the court, and that a person cannot be in
contempt when the summons never reaches him, saying: "It
cannot be permitted that service of a summons at his last place
of abode shall enable the plaintiff to take from the defendant
all that he has in the world. This is a dangerous power, for no
affidavit of debt is necessary, and a profligate man may abuse
the process of the court to any extent." Chief Justice MANS-
'Tidd's Practice, 112.
Staines. Johannot, 1 Bos. & Pull. 200; Morley v. Strombom, 8
Id. 254; Steel v. Campbell, 1 Taunton, 424; Greaves v. Stokes, 1 Id.
485; Gurney v. Hardenberg, 1 Id. 487, and cases cited therein.
A
10
THE LAW OF ATTACHMENT.
Under the Common Law.
field, in delivering the opinion of the court, said: "What is
the creditor to do if he cannot use this process? The defend-
ant carries on trade in this country, althongh he is absent, and
the persons who supply the materials for his trade, and by
means of which he makes his profit, cannot, without this
method, obtain payment for a single article. It is the defend-
ant's own laches that he has not an attorney employed to act
for him in this country (the wife died before the suit was com-
menced). Upon the decease of the former attorney, he ought
instantly to have appointed another. Many traders, who do
not reside in England, have houses of trade here, conducted by
agents who cannot be sued. There is, therefore, no other
method than this of compelling them to pay their debts. The
present is as fair a case as can be imagined for using this proc-
ess, if this abominable practice be allowed to exist; and we
must either say there can be no process against any man who
is out of the realm, or sanction it in the present instance."
HEATH, J.: "If the defendant carries on trade in Eng-
land, it is the same as if he were resident here."
CHAMBRE, J.: "It is strange that such a practice should
have so long prevailed in this court. Since, however, it is
established, it must prevail now; but it appears to me repug-
nant to the principles of law and justice. The same thing is
law and justice in this court, which is in the others. There,
if the defendant is abroad, the plaintiff must proceed to out-
lawry against him, and when he comes home he may reverse
the outlawry, and have his goods restored."
The court ordered the sum of £51, which had been levied,
should be impounded until the next term, in order that no fur-
ther distringas might be necessary, and discharged the rule.
§ 15. That the practice existed as late as the reign of
George the Fourth, may be seen from the Statutes 7 and 8
Geo. IV., c. 71, § 5, which provides that, “in all cases where
the plaintiff or plaintiffs shall proceed by original or other
writ, and summons or attachment thereupon, or by subpœna
and attachment thereupon in any action of law, against any
NATURE AND HISTORY OF ATTACHMENT. 11
Under the Common Law.
person or persons not having privilege of parliament, no writ
of distringas shall issue for default of appearance.
But in case it shall be made to appear to the court, or to any
judge thereof, that the defendant cannot be personally served,
the plaintiff may, by leave of the court or a judge thereof, sue
out a writ of distringas."
§ 16. Tidd, in his treatise on Practice, speaking of the
foregoing provision, says: "This clause of the statute does
not extend to the process by attachment on a Justicies in a county
palatine; nor to persons having privilege of parliament. And
the method of proceeding by summons, or attachment and dis-
tringas, subject to the restrictions of the statute, may still be
used against other persons, when they keep out of the way, 80
that they cannot be arrested, or served with process," ¹ in other
words, when they abscond.
§17. Outlawry for debt. If attachment under the "Ab-
sconding Debtor's Act," as our first enactments of this nature
were termed, is considered as a harsh remedy, and in deroga-
tion of the common law, let us see what was the actual and
customary practice, under the common law, where the debtor
absconds. "But where the defendant absconds," says Black-
stone, "and the plaintiff would proceed to an outlawry against
him, an original writ must then be sued out regularly, and after
that a capias." But the capias generally issues first, by the aid
of fiction (see Tidd, 8th Ed. 125). After the first, second and
third capias have been successively returned, non est inventus,
and a subsequent exigit facias has been returned quinto exactus,
"he shall then be outlawed by the Coroners of the county.
Such outlawry is putting a man out of the
protection of the law, so that he is incapable of bringing
an action for redress of injuries; and it is also attended with a
forfeiture of all one's goods and chattels to the King." This
process existed in England until the adoption of the Procedure
¹ Tidd's Practice, 115.
* 8 Black, 283.
-
12
THE LAW OF ATTACHMENT.
The Law in Scotland.
Act. The appendix to the first American edition of Tidd's
Practice, contains voluminous forms applicable to outlawry for
debt in the State of New York.
§ 18. The Law in Scotland. Before noticing the custom
of London, from which our Garnishment or Trustee process is
held to have been taken, we will glance at the law of attachment
in other countries.
In Scotland, a peculiar system of attachment known as
"horning," existed as early as the reign of Queen Mary, and
probably for a long time previous thereto, and has received but
few modifications since the year 1550. The proceedings are set
forth at length in Erskine's Institutes, Book I., Tit. V., § 55 et
seq. The process is peculiar. The summons, termed "letters of
horning," may be served personally, or at the last place of resi-
dence; but if the debtor is absent from Scotland, he must be
charged on sixty days at the Market Cross of Edinburgh, and
the pier and shore of Leith. Then, if he is in default, he is
pronounced "rebel," and all his property is sequestrated by
the king, for the benefit, first, of the attaching creditor, and
then for the payment equally of all his debts. The term,
"letters of horning," arises from the mode of announcing the
outlawry. "The publication must be at the market cross.
There the messenger must, before witnesses, first make three
oyesesses, with an audible voice. Next, he must read the
letters, also in audible voice, and afterwards blow three
blasts with the horn, by which the debtor is understood to be
proclaimed rebel to the King, etc." It will be seen that this
process is similar to outlawry for debt in England. In both
cases the process only applies to residents, or non-resident citi-
zens. The Scotch system is considered by Chief-Justice Best
as an "attachment," and its peculiarities are briefly set forth
by him in the case of Douglass v. Forrest.'
$ 19. In Ireland. I can trace no resemblance to our system
of attachments, except that in Dublin there exists a
¹ 4 Bingham, 686.
NATURE AND HISTORY OF ATTACHMENT. 13
Attachment in Civil Law Countries.
system similar to, and probably borrowed from, the
customs of London, as may be seen from the case of Grattan v.
Cottingham & Houghton,' where a debtor residing in England
was thrown into bankruptcy, and a successful attempt was
made to recover a claim against a resident of Dublin, which
had been previously attached or garnished by another resident
of Dublin, in the Tholsel court of that city.
8 20. Attachment in Civil Law Countries. Attachments in
localities where the civil law is the basis of jurisprudence,
is similar to that under the old Justinian system. Thus in
France under the Code Napoleon' every creditor may, upon
good cause shown to the judge, obtain a writ of attachment
against property of the debtor, which is in the hands of third
persons (la justice peut ordonner le séquestre des movables
saises sur un débiteur). The attachment to be valid in the
hands of the receivers, or persons holding a fiduciary position,
must be made with the person authorized in the writ. The
creditor must give notice within eight days after the granting
of the writ both to the debtor and the depositary, which is
generally accomplished by service of a summons.
In Spain,
the same result is obtained by a process called la via de
asentiamento, which is an adaptation of the pratorian mòrt-
gage of the Romans. If the claim be issued against real
property, the claimant is put into possession; the debtor being
allowed two months, in which to answer the creditor's claim.'
If however the claim be against personalty, the demandant
takes possession of all the personal property of the debtor, and
in case none can be found, of an amount of real property equal
to his debt, which must at least equal the sum of six hundred
maravedis.
* 1 Henry Blackstone, 82 N. See also opinion Lord Loughborough, ·
Id. 693.
* French Code of Civil Proc. §§ 557-582.
* Code Napoleon, §§ 1961, 1962.
* L. 2, tit. 11, Lib. 4 Rec.
L. 2, tit. 8, P. 8.
L. 15, tit. 8, Lib. 2 Rec.
14'
THE LAW OF ATTACHMENT.'
سلام
큐
​Under the Custom.
§ 21. The Mexican code of civil procedure, which is
founded primarily upon the laws of its mother-country, Spain,
provides that, whenever it appears to the satisfaction of the
judge, that the debtor intends either to secrete himself or his
goods, for the purpose of defrauding his creditors, an attachment
(embargo preventure) may issue, either before or after the
commencement of the action' to the person who makes the
application; the creditor must prove his right to the pre-
cautionary measure by the affidavits of at least three persons
and witnesses. The laws just stated correspond so closely with
the laws of Portugal that it will be unnecessary to detail them
here. In Louisiana, where the civil law, instead of the com-
mon law, prevails, the same system in a modified form exists.
§ 22. Foreign Attachment. The common-law system of
attachment, under the writs of attachment and distringas, and
the process of outlawry, was, as we have shown, inherited from
the Roman, and transmitted to the American system. There
existed, however, under the customs of London, a very ancient
proceeding, known as foreign attachment;' but in this country
designated as garnishment or trustee process. The property
of a non-resident, doing business in London, if held in his own
name, or under his own right, could be distrained or attached
for his debts, at common law, or taken by outlawry, if he did
not transact business in England; but his credits and chattel
interests could not be reached. This want the customs of Lon-
1 Tit. III. Chap. IL. §§ 853-860.
• Practica Civil Forenso Mexicana, p. 204.
* This custom has been recognized as existing at the time of William
the Conqueror and has been ascribed to a more remote antiquity. See
Thayer. Willett, 9 Abb. 825; Bohun, Privilegia Londini. Locke on
Attachment, p. 2 and note.
• This procedure, so far as the garnishee is concerned, is in effect a
suit against him by the defendant (his creditor) in the plaintiff's name.
See Travis v. Tartt, 8 Ala. 574; Moore . Stainton, 22 Ala. N. 8. 831;
Malley . Altman, 14 Wis. 22; McGrath v. Hardy, 4 Bing. (N. C.) 785;
Thorn. Woodruff, 5 Ark. 55.
NATURE AND HISTORY OF ATTACHMENT. 15
Under the Custom.
don supplied. Thus, we find in a weird old volume by Bohun,
entitled "Privilegia Londini," "That, by immemorial usage
and custom, long before the arrival of William I., one may
attach, by the custom of London, money or goods, either in the
plaintiff's own hands, or in the custody of a third person, and
that either in the mayor's courts, or in the sheriff's court. And
note, that the custom of London is, that if any plaint be
affirmed in London before, etc., against any man, and he is
returned nihil, if the plaintiff will surmise any other man who
is within the city, is debtor to the defendant, in any sum, he
shall have his garnishment against him for him to come and
answer, if he be indebted in the form which the other hath
alleged, and if he comes, and does not deny it, then this debt
shall be attached in his hands.'
"
§ 23. Foreign Attachments. Attachment, under the com-
mon law only applied to citizens and resident aliens; but the cus-
tom extended to all persons, including foreigners as well as citi-
zens, and was termed, therefore, foreign attachment, to distin-
guish it from attachment at common law. It lies where the.com-
mon law process is ineffective, for the want of property in the
debtor's own name, capable of levy under an attachment or dis-
tringas. "And he is returned nihil," says the custom. Nihil
is the return of the sheriff to a writ of distringas, and signifies
that the defendant "hath nothing in my bailiwick whereby he
may be distrained." Cowell says that the term, as used in the
custom, signifies "that nothing could be found as a distress to
¹
compel appearance of the defendant.”* It will be seen,
therefore, that foreign attachment is founded upon the common
law, and is only designed and used to remedy the defects in that
system. The practice, under the custom, was similar, in most
¹ 8 Black. Com. App. 111, § 2.
* Cowell's Interpreter, tit. "Foreign Attachment."
* "An attachment," says the recorder, "is not equivalent to an arrest;
it is analogous to a distringas." (Wadsworth v. Martin, garnishee, the
Queen of Spain, defendant, cited in Locke on Attachments, 8.) See also
Day. Paupierre, 13 Q. B. 802.
16
THE LAW OF ATTACHMENT.
The American System.
respects, to that of garnishment in this country. The only
mat erial difference, to the practitioner,arises from the fact
that, under the custom, no costs were allowed, whether the
judgment was for or against the plaintiff.
24. The custom in other cities. The customs of Exeter
were similar to those of London. In Bloomfield's History of
Norfolk (Vol. II., p. 332) there is a detailed statement of the
customs of West Yarmouth, "of certain customs of the burgh
of Yarmouth observed and kept by the burgesses time
immemorial," among which customs are cited foreign attach-
ments as follows: "Of the declaration, condemnation, apprais-
ment, disposal, etc., of goods attached.”
The custom of Paris is similar to that of London. "It is
taken for the seizure of effects in the hands of a third party
belonging or due to the debtor of him who makes the seizure,
and the seizure in this case is termed arrest; because it only
arrests, what is due to the debtor, until such time as the party
seizing shall have obtained by sentence, that the effects shall
be put in his hands for, and as a deduction from, what his
debtor owes him; so that in this case, seizure and arrest are
synonymous."
The custom of Dublin, as designated in the case of
Grattan v. Cottingham & Houghton' is also a garnishee
process, similar to that of London, and is enforced by process
issuing out of the tholsel, or city court of that city.
§ 25. The New England attachment law. In this country
we have three distinct systems of attachment: The New Eng-
land System, Foreign Attachments, and the Absconding Debtors
Act. The New England System prevails in all the New
England states, and has existed there with but slight modifica-
tions for nearly two centuries. It was founded directly upon
the common-law writs of attachment and distringas, and has
not a single feature of the customs of London. The first
¹ Customs of Paris, edition of 1770, tit. “Seisim,”
* 1 H. Blackstone, 82 n. and see also section 19, infra.
NATURE AND HISTORY OF ATTACHMENT. 17
The American System.
notice we have of this system is in the Justice Act of
Massachusetts, passed in the year 1697. It is found in the
"Act relating to Civil Actions" enacted in New Hampshire in
1699. In Connecticut it is contained in the revised statutes
published in 1702. Under this system the property of the defend-
ant is attached at the commencement of the suit without any
affidavit or security being first required from the plaintiff, and
is held by virtue of the attachment until thirty days after
judgment is recovered, without an execution, unless the judg-
ment shall be levied within that time, in which case, the prior
levy merges in that of the execution. It will be seen that but
few of the evils complained of by Chief-Justice Mansfield and
others in the case of Gurney v. Hardenberg, have been
remedied by this system.
§ 26. Foreign Attachments. In October, 1700, shortly after
the settlement of the Province of Pennsylvania, the Assembly
at New Castle passed an act entitled "The Law about
Attachment." This act was, however, at the suggestion of the
queen's attorney, re-enacted in 1705, with amendments. It
then constituted what is known as "foreign attachments," and
was practically an adoption of the customs of London
in relation to attachments, except that the provisions of
the law were applicable only to non-resident defendants, and
no oath was required before the attachment issued against the
defendant's property. As under the custom, the levy was
dissolved by the defendant's appearing and entering special
bail to the suit; the process being intended to compel an
appearance.
§ 27. Garnishment, the main distinctive feature introduced
by foreign attachments, is now incorporated into the laws of
each state and is the only provision in the modern system of
domestic attachments that cannot be traced to the common
law. By the aid of this process the attaching creditor is
subrogated to all the rights of the debtor against third parties,
who are termed garnishees. Under the New England System
trustee process" takes the place of garnishment, and the
2
18
THE LAW OF ATTACHMENT.
·
The American System.
garnishees are termed "trustees." The change is one of
designation simply.
"9
§ 28. The Absconding Debtors Act. The next act in point
of time is that of Maryland, passed in 1715. This act had no
distinctive features, and occupied a central position between
the systems of Pennsylvania and the New England States. In
1723 the Assembly of Pennsylvania enacted a law relative to
absconding and concealed debtors. The act applied only to
residents and was therefore ternied a domestic attachment. A
similar law was passed in New Jersey in 1740, in Virginia
in 1748, and in New York in 1751. Domestic attachments
were contined to actions ex contractu. An affidavit and security
were required before the warrant issued and the attachment was
held as security for the enforcement of debts, and was not there-
fore discharged by the appearance of the debtor. The specific
acts of the several states differed in one important point. In
New York and Pennsylvania the entire property of the debtor
was vested in trustees and disposed of by them-the same as
in bankruptcy-for the benefit of all the creditors. In Mary-
land and many of the other states the plaintiff attached to the
amount of his own claim and for his own personal benefit.
Neither method has any affinity to the "foreign attachment”*
"The attachment in question," says Chief-Justice Buchanan in Bar-
ney v. Patterson, 6 H. & J. (Md.) 182, "was properly awarded under
the circumstances of the case, jurisdiction being given to the court on
the face of the proceedings. If it were otherwise, property acquired in
this state by foreigners residing without the United States, would be
completely protected against their creditors, there being no other mode
of reaching it, and when they are placed in no worse situation than
citizens, and their property is subjected only to the "same process, it is
no cause of complaint that they are styled and treated as citizens in the
forms of proceedings. The act upon which the proceedings of the cir-
cuit court were founded, (Act of 1715,) professes to give no new jurisdic-
tion of the whole subject matter. The preamble is in these words:
'Whereas it is highly expedient to settle the manner of proceedings on
attachments, and limiting the extent of them, and to provide what shall
be levied on such attachments, and executions.' It belongs to the sov
ereign authority of a state to prescribe the manner of proceeding in its
4
NATURE AND HISTORY OF ATTACHMENT. 19
The American System.
Bystem of the custom of London and both are properly founded
on the common law.
8 29. Contrasting the English and American Systems. The
Absconding Debtors Act is in truth a substitute for, and im-
provement upon, the common-law process of outlawry for debt,
where for the same cause-absconding-the defendant's prop-
erty was all forfeited to the king, and the former was simply
a remedial amendment to the common-law writs of attachment
and distringas, the latter writ being peculiarly applicable to the
case of debtors absconding or concealing themselves, and was
enforced in the same method, i. e. by distraining or levying
upon the defendant's property for the sole benefit of the
plaintiff's claim. The American system has, however, removed
courts of justice, and to make such provisions for the recovery of debts
as the legislature may deem most expedient. The proceeding by attach-
ment under that law is the only process to compel the appearance of a
defendant to a suit before brought and depending in a court of compe-
tent jurisdiction, whose person cannot be reached by the process of the
court, of which it comes in aid, and without which the plaintiff would be
without remedy; and it is not a proceeding in derogation of the principles of
the common law, but rather in mitigation of the severity of the common law,
in favor of defendants. By the common law, where a defendant was
summoned, and would not appear, his goods were liable to be proceeded
against by attachment, and distress infinite, and the goods seized were
forfeited to the king; and where the defendant was abroad, or kept out
of the way so that he could not be arrested, the plaintiff might proceed
against him to outlawry, which was also attended with a forfeiture to
the king of all his goods and chattels. The proceeding to outlawry, or
by distringas was to compel the appearance of the defendant; and so
with the attachment here, it is only a proceeding against the defend-
Ant's goods, to compel his appearance, with this difference in favor
of the defendant, that a year and a day is given him to come in and
appear to the original action, and if he can defeat it, to have a return
of his property without any forfeiture to the state. And it would
seem, from the language of the preamble, that the act was passed with
a view to a mitigation of the rigor of the common law; and an out-
lawry, though illegal because the party was beyond sea, cannot be set
aside by a third person in a collateral action, but is voidable alone by
the party himself, and that only sub modo, by his appearing and putting
In bail."
A
20
THE LAW OF ATTACHMENT.
The American System.
all the objectional features of the common law, suggested in the
case of Gurney v. Hardenberg' by affording a remedy where
the debtor is lurking or temporarily remaining abroad, and at
the same time protecting his interest to a certain extent by
requiring an affidavit previous to a levy,' of the validity of
the claim, and the amount due; by giving bonded security for
the benefit of the defendant, should the claim prove to be an
unjust one,' and by allowing the defendant within a limited
time thereafter to come in and defend, and open the judgment
for that purpose; none of which rights existed in the com-
mon-law.
§ 30. The distinction between Domestic and Foreign Attach-
ment only exists in Pennsylvania, Delaware and the New
England states. The law in the other states contains one
provision for attachment applicable to the several grounds:
absconding, concealment, non-residence, and a fraudulent
disposition of property, the property attached being held solely
for the plaintiff's benefit, and subject to an execution upon his
judgment when recovered. Garnishment or attachment of
credits is also included in the several statutes making up the
American system of attachments. The law in Canada is
similar to the American statutes in this respect.
§ 31. The law in New York State. We had in this state,
prior to May 1st, 1877, three distinct systems of attachments:
¹ See § 14.
• Affidavits are required except under the New England System.
See Foster v. Jones, 1 McCord (S. C.) 116; Biggs v. Blue, 5 McLean
148; Hale v. Chandler, 8 Mich. 531; Black v. Brisbin, 3 Minn. 360;
Pancake v. Harris, 10 S. & R. (Pa) 109; Bowen ». Slocum, 17 Wis. 181;
Messner ». Hutchins, 17 Tex. 597; Courrier v. Cleghorn, 8 G. Gr. 523;
Van Kirk. Wilds, 11 Barb. 520.
* Camberford . Hall, 3 McCord, (S. C.) 845; Ford v. Hurd, 4 Sm.
& M. (Miss.) 683; Stevenson v. Robbins, 5 Mo. 18; Kellogg . Miller,
6 Ark. 468; Davis v. Marshall, 14 Barb. 96; Hucheson v. Ross, 2 A.
K. Marsh. (Ky.) 849.
* See Albany City Ins. Co. v. Whitney, 70 Pa. St. 248; Fuller ».
Bryan, 20 Id. 144.
NATURE AND HISTORY OF ATTACHMENT. 21
The American System.
First. Under the Revised Statutes, in which may be included
sections 26 and 27 of the Stilwell act.' Second. Under the
Justices' Act of 1824, as modified and extended by the Stilwell
Act and subsequent amendments. Third. Under the Code.
$ 32.
Under the Revised Statutes the property attached
passed into the hands of trustees, who were also empowered to
collect debts due the defendant, the proceeds whereof were
applied pro rata for the payment of all his debts. This feature
in the act practically nullified the entire system. The remedy
however was concurrent with, and was not repealed by, the
attachment provisions provided by the old code.
§ 33. The Justices' Act only applied to demands arising
upon contract where the amount claimed was one hundred
dollars or any less sum. It was enforced by an action before
a Justice of the Peace, commenced by warrant of attachment;
the proceeding being for the sole benefit of the plaintiff or
attachment creditor.
8 34. The Code System, now the only remedy in this State,
applies to existing suits for the payment of money only. The
property is attached under an order of attachment granted by
the court, and is held by the officer as security for the enforce-
ment of the judgment, by sale, of the property attached, under
execution, for the sole benefit of the plaintiff in the action.
§ 35. The nature of each process. Attachment, under the
Revised Statutes, was a special proceeding; under the Jus-
tices' Act, an action, and under the Code, a provisional remedy."
996
1 2 R. S. 230 (245.)
* Laws of 1881, Chap. 800, providing for non-imprisonment for debt.
• Vol. 8, 5th Ed., page 427 et seq.
* Code of Procedure, §§ 27 et seq.
Skinner v. Stuart, 39 Barb. 206.
• Furman v. Walter, 13 How. (N. Y.) 848; Gere v. Gundlach, 57
Barb. 18; Houghton . Ault, 16 How. 77; Floyd v. Blake, 11 Abb. Pr.
849; Fraser v. Greenhill, 8 Code R. 172.
A
22
THE LAW OF ATTACHMENT.
The American System.
Under the Revised Statutes, the ground of attachment related
to the person of the debtor, and, under the Stilwell act, to his
property. The Code originally followed the Revised Statutes
in this respect, but in 1853 the provisions of the Stilwell Act
were added. It now embraces all the cases arising under both
systems.
THE RIGHT OF ACTION.
23
$
Maturity of Debts.
CHAPTER IT.
THE RIGHT OF ACTION.
§ 36. The primary requisite in an attachment proceeding
is the existence of a present right to recover from the defend-
ant a certain or determinate sum of money. The warrant is a
provisional remedy, founded in a pending action, out of which
it issues, and from which it must gain whatever force or vitality
possesses.
it
§ 37. Maturity of Claims-In several of the States, an
attachment issues as an original process, prior to the maturity
of the plaintiff's claim, provided that the element of time is the
only essential wanting to make the cause of action complete.
This exceptional provision is not allowable in New York State,
for the apparent reason that, if the claim is not due, the cause
of action is incomplete, and the action itself, together with all
its attendant auxiliary or provisional remedies, necessarily falls.
$ 38. The element of time is often of the utmost import-
ance in the application of this remedial process. Attachments
are usually grounded upon the fact that the defendant is either
doing,
or just about to do, some act that may fatally affect the
rights of the plaintiff, if he is confined to the ordinary remedies
of judgment and execution. To steer between the Scylla and
Charybdis of premature action and fatal delay, requires a
knowledge of the rules governing the maturity of claims, as
well as those applicable to attachments. To facilitate the prac-
titioner, in the former respect, we group together a few of the
most important propositions relative to the time when a demand
becomes legally enforceable at law.
24
THE LAW OF ATTACHMENT.
क
Maturity of Debts.
$ 39. First, the time limited must expire.-Where a cer-
tain time is allowed for the performance of a certain act, no
liability accrues against the actor until the full time expires.
§ 40. Examples.-In Moore v. Dickerson,' an attachment
was issued on the 9th day of November, upon an action for the
breach of a contract, wherein the defendant agreed to purchase
from the plaintiff a certain amount of cotton, that Fall. The
court held that the attachment was premature. So, where an
agent was required to account to the principal within ninety
days, for articles consigned to him for sale, the court held
that an action of accounting would not lie until the completion
of the limited time.*
8 41. Time of default.-As a corollary to the foregoing prop-
osition, it may be stated that, where an act is to be performed
upon a certain day, the actor is not in default until the suc-
ceeding day. Example: Where A. executed to B. a note pay-
able one day after date, without grace, an attachment issued
on the evening of the first day after execution of the note was
held premature and void, as A. had the entire day for the per-
formance of his duty.' This is one of the peculiar cases where
an action will not lie upon a matured indebtedness, and results
from the fact that there is no breach of contract until the full
time expires.
§ 42. The rule is only applicable to action upon the contract
in question. It seems, however; that the rule is different as
between the drawer and accommodation acceptor of bills of
exchange, and, doubtless, in all other cases where an action can
be maintained dehors the contract. Thus, where A. accepted
bills for the accommodation of B., and paid them on the second
day of grace, and on the third day of grace commenced a pro-
ceeding, by attachment, against B., to recover the amount so
paid out for his accommodation, under a count for money had
and received; the court, while recognizing the doctrine that
↑ 44 Ala. 485.
* Hall •. Page, 4 Ga. 428.
See Moore. Dickerson, 44 Ala. 485,
THE RIGHT OF ACTION.
25
氘
​Maturity of Debts.
an action could not have been maintained on the bills until after
that day, yet held that "the payment before the day is good
payment at the day," and that, under that count, an action
might be maintained as soon as the money was paid out, not-
withstanding the grace had not expired.'
843. Effect of a previous refusal of performance. The rule
has this qualification: If, before the day of performance, the
person charged with the duty either absolutely refuses to carry
out the contract, or places himself in a position where perform-
ance becomes impossible, an action may be immediately com-
menced upon the breach of the contract, in the same manner
as if default were made upon the day. Accordingly,
held, in the Court of Appeals, in this State, that an action
for a breach of promise would lie at once upon a positive refusal
to perform a contract of marriage, although the time specified
for the fulfillment had not arrived. As where parties agreed
to marry "in the Fall," and the defendant announced, in Octo-
ber, his determination not to marry. So, a man who contracts
with another to enter his service, as a carrier, on the first day
of June, thereafter becomes liable to an action before that day,
by giving notice of his refusal to employ him according to
contract. So, also, where a man who had promised to marry a
woman on a future day, before that day arrived, married another
woman, the court held that he was instantly liable in an action
for the breach of promise of marriage.*
$
§ 44. Second: Actions between sureties and their principal
will not lie until the original liability has been fully satisfied
and discharged.
§ 45. Examples.-A. drew bills of exchange on B., who
accepted them, payable at a specified time. After the bills
¹ Whitwell v. Brigham, 19 Pick. (Mass.) 117.
• Burtis . Thompson, 42 N. Y. 247.
• Hochester. De Latour, 20 Eng. L. & Eq. 157.
• Short v. Stone, 8 Q. B. 358. .
A
26
THE LAW OF ATTACHMENT.
Maturity of Debts.
were dishonored, A., upon concluding an agreement with the
holders for their payment, commenced an action against B.,
the acceptor thereon, and afterward paid the bills in pursuance
with the previous agreement. The court held that an action
would not lie until the bills were actually taken up, and that
the completion of the agreement would not refer back to the
time when it was made, so as to re-invest in the drawer the
title to the bills as of that date.'
§ 46. Payment at maturity will not cure the defect.-And
where a creditor for the accommodation of the drawer accepted
a bill for the amount due from him, which was afterward dis-
counted and the proceeds applied in payment of the debt,
it was held that no cause of action accrued in favor of the
creditor or accommodation acceptor, until the maturity of the
note and payment thereof by him, and that payment at
maturity could not retroact, so as to give validity to an
attachment sued out before it became due."
§ 47. Third. When the acceptance of a note is an extension
of credit.―The acceptance of a bill or note, drawn by a debtor
in payment of an existing indebtedness, suspends the right of
action thereon until the maturity of the bill or note. But if
such bill or note is void, or worthless, or given through fraud
or deceit, the creditor may immediately proceed upon the
original demand.
§ 48. Nature and application of the rule. "The law," says
Lord Kenyon, "is clear that if at payment of a debt the
creditor is content to take a bill or note payable at a future
day, he cannot legally comnience an action on his original
debt until default is made in the payment of the bill or note;
but if it is of no value, as if for example drawn upon a person
who has no effects of the drawer in his hands, and who there-
fore refuses it, in such cases he may consider it as waste paper
C
1 Blanchard v. Grousset, 1 La. An. 96.
Read . Ware, 2 La. An. 498, and seo Todd v. Shouse, 14 Id. 426.
THE RIGHT OF ACTION.
27
Maturity of Debts.
and resort to the original demand and sue the debtor on it.”
In the case of Black v. Zacharie & Co.,' decided in the Supreme
Court of the United States under the laws of Louisiana, the
following questions arose :
B. being indebted to Z. & Co. for the proceeds of a cargo
of sugar consigned to him, Z. & Co. drew on him certain bills
of exchange, which were accepted for the full amount of those
proceeds, and were all negotiated to third persons, and were
outstanding, and three of them were not yet due, when B.
made an assignment for the benefit of his creditors. Z. & Co.,
upon hearing of it, brought suit against B. for the full amount
"of the proceeds of the cargo of sugar, and attached his property.
The question was, whether, under the law of Lousiana allowing
an attachment to be sued out upon a debt not yet due, this
attachment could be maintained. The court said: "It is
plain to us that there was no debt dne Z. & Co., at the time
when the attachment was made. The supposed debt was for
the proceeds of a cargo of sugar and molasses, sold by B. on
account of Z. & Co. Assuming those proceeds to be due and
payable, Z. & Co. had drawn certain bills of exchange upon
B., which had been accepted by the latter, for the full amount
of those proceeds; and all of these bills had been negotiated to
third persons, and were then outstanding, and three of them
were not yet due. It is clear upon principles of law, that this
was a suspension of all right of action in Z. & Co., until after
those bills had become due and dishonored, and were taken up
by Z & Co. It amounted to a new credit to B. for the amount
of those acceptances, during the running of the bills, and gave
B. a complete lien upon those proceeds for his indemnity
against those acceptances, until they were no longer outstanding
after they had been dishonored.. The statute does not apply
to debts resting in mere contingency whether they will
become due to the attaching creditor or not.”
• •
1
Stedman v. Gooch, 1 Esp. 8, and see Kearslake ». Morgan, 5 Term
R. 518; 2 Edwards on Bills and Notes, 197; Byles on Bills, 567, note 1.
8 How. Sup. Ct. 483; and see Henderson v. Thornton, 87 Miss.
$
A
28
THE LAW OF ATTACHMENT.
[
Maturity of Debts.
ness.
§ 49. The State Courts are divided upon the question
whether or not, in such a case, a valid note or bill, accepted by
the creditor in payment, will extinguish the original indebted-
But the rule in England, and in this State, and the
weight of authority in this country, favors the doctrine that
only actual payment, or the acceptance of a higher security,
as, for example, a note made or indorsed by a third party, will
discharge the original claim. Our courts are, however, united
upon the rule that, in such a case, the original term of credit is
at least extended for the time specified in the bill or note.'
8 50. Effect of fraud. But where fraud, deceit, or undue
influence enters into the transaction, the rule is different.
Where a debtor, in order to bridge over a certain period, within
which he can dispose of his property, or safely remove himself
beyond the jurisdiction of the court, secures an extension of
his credits, by procuring the acceptance of his notes maturing
beyond the limited time, with the intent thereby to defraud
his creditors; or where the bill or note is given, and accepted
when the debtor knows it will not be paid; or the acceptance
is procured through false representations, or by deceitfully
withholding material facts that it was his duty to disclose, the
creditors may at once spurn the entire transaction, return the
notes, and sue upon the original indebtedness. No agreement,
although apparently fair and in compliance with all the for-
malities of the law, can be enforced if it be essentially unfair
and fraudulent. If not made in good faith, and free from the
stain of fraud and imposition, it will be spurned from the
threshold of every legal tribunal.'
§ 51. Fourth. Entire contracts.—An action will not lie upon
an entire contract until there is a performance on the one part,
or a breach on the other,' and in all cases where an entire
¹ See Parsons on Notes and Bills, 206; Alexander v. Dennis, 9 Port.
(Ala.) 174; Thurston v. Blanchard, 22 Pick. 18.
• See Fermor's case, Bright v. Eynon, 1 Burr. 390.
3 McMillan. Vanderlip, 12 John. R. (N. Y.) 166; Jennings .
THE RIGHT. OF ACTION.
29
Maturity of Debts.
sum is to be paid for the entire work, and no provision is
made for the time of payment, the performance of the entire
service is a condition precedent.'
§ 52. Examples. Thus, where A. agrees to build a house
for B., at day's work, and no mention is made of the time of
payment, he cannot recover any sum on account of his services
until the completion of the building.' The same rule would
apply if he were to contract for a year, at a certain price per
month.
§ 53. Not affected by the statute of frauds. This rule is
enforced even when the contract itself is void under the stat-
ute of frauds. Thus, where the plaintiff, in the month of Feb-
ruary, made a parol agreement with the defendant to work for
him for one year, commencing April 1st, at a certain price per
day, payable half-yearly; and it appeared that after working
under the contract until the 11th day of June, he abandoned
the work, and, in July following, commenced an action to
recover for the amount of services performed by him, on the
ground that the contract was inoperative under the statute of
frauds. The court held that the terms of the contract were,
nevertheless, to be considered in determining the time when
the payment was to be made, and the action was, therefore,
premature."
8 54. Same. Action for an Accounting. In the case of Steam
Packet Company v. Sickles, a contract was made with the
defendant to use a patented machine during the continuance of
Camp, 13 Id. 94; Faxon v. Mansfield, 2 Mass. R. 147; Stephens v.
Beard, 4 Wend. (N. Y.) 604; Mead v. De Golyer, 16 Id. 635; Champlin
v. Rowley, 18 Id. 187; Mains v. Haight, 14 Barb. 76; Kettle v. Harvey,
21 Vt. 801; Stark v. Parker, 2 Pick. (Mass.) 267.
* Littlero. Smiley, 9 Ind. 116.
* Cunningham v. Jones, 8 E. D. Smith (N. Y.) 650; S. C., 4 Abb.
433.
* Clarke v. Terry, 84 Conn. 176.
+18 How. (U. S.) 419.
80
pando
THE LAW OF ATTACHMENT.
*
Maturity of Debts.
the patent, in consideration of the payment to the plaintiff of
a certain percentage of the profits arising from its use. The
contract contained no stipulation as to the time when the defend-
ants should account to the plaintiff for his portion of the
profit. An action was commenced against the defendants
while the patent was still in force, for an accounting. The
Supreme Court held that no cause of action existed, in favor
of the plaintiff, until the expiration of the patent.
§ 55. Fifth. Effect of fraud on the non-performance of a
precedent condition. Where credit is obtained by means of
fraud or deceit, or upon an agreement by the debtor to perform
certain acts, no action will lie upon the original contract or
indebtedness until the term of credit, or such time for per-
formance has expired; but upon the discovery of the fraud, or
the refusal of performance, an action will lie for damages, by
reason of the fraud or breach of contract, for the full amount
specified in the original agreement.
§ 56. Cannot maintain assumpsit till claim matures--In the
case of Hanna v. Mills,' the court held that, where goods are
sold to be paid for by a note or bill, payable at a future day, and
the note or bill is not given, the vendor could not maintain
assumpsit on the general count, for goods sold and delivered,
until the time fixed for the maturity of the notes; but that he
could immediately sue for a breach of the special agreement,
and recover, as damages, the value of the goods sold, less a
rebate of interest during the stipulated credit.
§ 57. Where debtor defeats agreement for further credit.--
In Lee v. Decker, the amount of an unsettled account was
liquidated by a written agreement, signed by both parties,
which 'contained a provision that the time of payment should
be arranged after the consummation of a second contract
121 Wend. (N. Y.) 90, and see 4 East 147; 8 Bos. & Pul. 582, 9
East 489, 8 Camp. 829.
• 6 Abb. N. S. (N. Y. Ct. of App.) 392.
THE RIGHT OF ACTION.
31
Maturity of Debts.
between the debtor and a third party. The debtor failed to
consummate such an agreement, and refused to arrange a time
of payment, or give long notes for the amount specified in the
contract. The Court of Appeals held, in an action to recover the
amount of the stated account, that, under the circumstances,
the action could be maintained. This was a case where the
original credit had expired, and the agreement to give a fur-
ther credit was defeated by the debtor.
§ 58. No recovery "on the contract," without proving refusal
to perform.-In Hartman v. Proudfit there was an agreement
between the plaintiff and defendant, providing that the plaint-
iff was to perform certain work, upon the completion of which
the defendant was to execute and deliver to him a mortgage,
“to run one year." The work was completed, but the mort-
gage not being executed, the plaintiff commenced an action on
the contract during the succeeding year.' The court held that
the action would not lie until the expiration of the year, with-
out the plaintiff could prove a refusal to give the bond and
mortgage.
§ 59. Effect of breach of contract.—In the case of Ward v.
Begg, the defendant agreed that, if the plaintiff would sell
him goods on credit, and also guarantee his liabilities to another
firm, to the amount of $1,302.88, he would ship and consign to
him all the fish he should become possessed of in his business
in Nova Scotia, as security for the guaranty and the goods sold
him; on the strength of which the plaintiff sold the defendant
goods, on credit, to the amount of $1,045, and became a guaranty
to the other firm. Subsequently, the defendant forwarded fish
from Nova Scotia, but consigned it to a third party. The
plaintiff thereupon, and before the original term of credit had
expired, either upon the goods soid or the guaranty, com-
menced an action to recover the amount of the guaranty and
the goods sold, $2,347.88, and attached the fish of the defend-
ant to the value of $2,500.
16 Bosw. (N. Y.) 191.
* 18 Barb. 189.
32
THE LAW OF ATTACHMENT.
Maturity of Debts.
The Special Term discharged the attachment, on the ground
that the action was premature; the term not having expired,
there was nothing due, and, therefore, no cause of action. On
review, at General Term, the order was reversed. MITCHELL,
J., in delivering the opinion of the court, said: "There were
two contracts, one to pay for the goods when the credit should
expire, and the other to give the plaintiff's security for the pay-
ment of the goods, and for their guaranty.
This last
contract the defendant has broken, and was liable to be sued for a
breach of it, as soon as it was broken.
If a judgment
were obtained before the credit expired, the court had sufficient
equity powers over their own judgments to postpone the col-
lection of the amount of the judgment until the credit should
expire, or to vacate it if the security agreed upon should be
given. Thus, justice would be done to all the parties."
•
•
$60. Equitably due. It is a well-established rule, founded
on the presumption of fraud, that an attachment issued before
a debt matures, is primâ facie void, as to the subsequent
attaching creditors." The Supreme Court of California
in the leading case of Patrick v. Montader,' acknowl-
edging this principle, upon an exhaustive review of all the
authorities, held that, after the recovery of a judgment, in an
action for goods purchased on credit by an insolvent debtor,
commenced before the expiration of the term of credits, upon
which an attachment was issued upon the property of the
defendant, the attachment could not be vacated by junior
attaching creditors, for the reason that the debt was equitably
due. BALDWIN, J., in delivering the opinion of the court,
says: "It may be true, as argued by respondent's counsel;
that this fact" (the fraud in contracting the debt) "gave the
plaintiffs in those attachments no legal cause of action until
the maturity for the debt, as fixed by the contract; that is,
that no suit could be brought for the goods as on a contract of
1 Ayres . Husted, 15 Conn. 504; Walker . Roberts, 4 Richardson
(S. C.) 561; Hale v. Chandler, 8 Mich. 531; Carter v. Gregory, 8 Pick.
(Mass.) 165; Clark ». Foxcroft, 7 Me. 848; Page v. Jewett, 46 N. H. 441.
* 18 Cal. 434.
THE RIGHT OF ACTION.
33
Maturity of Debts.
Many
sale, except according to the terms of the contract.
respectable authorities hold to the contrary, though probably
the weight of anthority, and certainly a very strong technical
reason, favors the proposition, as the learned counsel states it;
but there can be no doubt that in morals, and conscience, this
money was due from these defendants to these plaintiffs in
attachment. There is no showing or presumption that the
goods were not of the value for which they were sold. There
is some proof in the record, too, that these goods had been sold
by the defendant, and the money received, though it is not so
found by the referee. But that this debt, represented by the
attachments and judgments, was equitably due at the time of
the suing out of the attachments, we think clear.
Having obtained a lien for a just debt, a court of equity, when
they had been summoned before it, in the absence of proof of
actual frand, would, according to its known liberal course of
procedure, permit them to hold it."
•
8
84
THE LAW OF ATTACHMENT.
CHAPTER III.
ACTIONS EX DELICTO.
§ 61. To entitle the plaintiff to an attachment against the
goods of the defendant, there must not only be an existing right
of action, but the cause of action must be within the statute.
The remedy contemplates only those actions where the damages
are liquidated or capable of liquidation by computation or the
application of general rules of evidence. This is requisite to
limit the extent of the levy.
§ 62. Actions upon personal torts, even where they are not
barred by the letter of the statute, are not admissible, because
the damages are guaged in amount by the peculiar circumstances
of each individual case. In such cases the jury, rather than
the injured party, must fix and determine the legal damages.'
This discrimination has also been extended to property as well
as personal torts."
•
1 An attachment will not lie for an assault and battery, Saddlesvene
v. Arms, 82 How. (N. Y.) 280; Thomson v. Carper, 11 Humph. (Tenn.) ·
542; Minga v. Zollicoffer, 1 Ired. Law R. (N. C.) 278; nor in actions of
slander, Baune v. Thomassin, 6 Martin N. 8. (La.) 563; nor in malicious
prosecution, Hynson . Taylor, 8 Ark. 552; Tarbell . Bradley, 27 Vt.
635; nor in malpractice cases where the action is in tort, Prewitt v.
Carmichael, 2 La. An. 943.
• So held in an action for damages, in breaking open a letter, Raver
v. Webster, 8 Iowa 502; actions for stolen money, Piscataqua Bank v.
Turnley, 1 Miles (Pa.) 312; actions of replevia, Hanna v. Loring, 11 Mar-
tin (La.) 276; in trespass, Ferris 9. Ferris, 25 Vt. 100; in trover, Mar-
shall v. White, 8 Porter (Ala.) 551; and in actions of negligence in
running a steamboat into the plaintiff's boat, Griswold v. Sharp, 2 Cal.
See also to the same effect, McDonald . Forsyth, 13 Mo. 549;
17.
THE CAUSE OF ACTION.
35
Actions Ex Delicto.
§ 63. The rule in New York state. Prior to 1866 the
remedy of attachment in this state was limited to "actions for
the recovery of money only;" under this provision the courts
were formerly divided as to whether torts were included
within the limitation. In 1856 Edmonds, J., in Hernstein v.
Mathewson,' decided at special term that the code allowed an
attachment to issue against a non-resident defendant in every
money action, whether founded on tort or contract. In 1860
Justice James at special term upheld the right in the case of
assault and battery. In 1859 Justice Hogeboom denied an
attachment in an action for damages arising from the burning
of the plaintiff's barn and its contents. Then came the
decision of Saddlesvene v. Arms at General Term. The
question involved in that case was whether an attachment could
issue in an action for assault and battery. The court, after
citing authority, and pointing out provisions of the code,
proving that the right is restricted to those actions where the
amount of the claim" can be specified, said: “Now, take an
action for slander or assault and battery, the amount of the
recovery demanded being $10,000, $20,000 or even $50,000,
when it is not probable that the recovery will ever exceed
$500. Indeed, the assault and battery or the slander, may be
of the most trifling character, and the action may end in a
verdict for nominal damages. Is the code open to the objection
that under such circumstances a plaintiff may estimate his own
damages, and then attach the property of the defendant
sufficient to satisfy such damages, and retain the property until
the defendant shall give two sureties in double the amount
claimed in the complaint? It is not a satisfactory answer to
say that there can be no danger of such practice, because the
plaintiff is by affidavit to specify 'the amount of the claim and
Holmes. Barclay, 4 La. An. 63; Swagar v. Pierce, 8 Id. 435. But
attachment under the New Code will lie in New York for all injuries to
property, if the damages are sufficiently adjustable to state the amount
in the affidavit.
1 5 How. (N. Y.) 196.
Floyd v. Blake, 19 How. (N. Y.) 542.
36
THE LAW OF ATTACHMENT.
Actions Ex Delicto.
the grounds thereof.' It is true he is to specify the amount
of the claim and the grounds of it; but in most most actions of
tort the damages are uncertain and entirely unknown until the
verdict of the jury is rendered, and the plaintiff may fix them
at any sum without the fear of conviction for perjury. This
will not be so if the action is for the breach of a contract, for
then the facts constituting the contract and the breach must
be stated as the 'grounds' of the claim, and the amount of
claim' must be stated. Here are sundry facts to be stated, and
if they are not truly stated, the person making the affidavit may
be guilty of perjury . the truth in my opinion is that the
authority of the language in sections 227 and 229 never
contemplated an attachment in an action for a tort.”
64. The extent of the rule in Saddlesvene v. Arms. This
obiter dictum has since been siezed upon as authority for the
entire discrimination of actions in the nature or form of tort,
whether or not they are founded upon contract, or whether or
not the demand may be sufficiently specific to convict the
plaintiff of perjury for misstating its amount. This conclusion
is erroneous. The learned justice only referred to the class of
torts arising in that case, wherein "the damages are uncertain
and unknown;" he does not limit this to all actions ex delicto,
but “in most actions of tort” only.
1
8 65. The true rule, established by this case is that the
right of attachment should be restricted to those cases where
the amount claimed can be averred in the plaintiff's affidavit,
and the rule of damages is so fixed and certain that,´if that
amount is not truly stated, the plaintiff can be convicted of
perjury. This rule is in unison with all the English and
American authorities upon this point, and will answer in all
classes of actions ex delicto and ex contractu, provided they
are not barred from its operation by the express letter of the
statute.
Not italicised in the text.
THE CAUSE OF ACTION.
87
•
Actions Ex Delicto-Breach of Duty.
There is no real reason why actions ex delicto should be
specially excluded from the operation of the statute. The line
should be so drawn as to eliminate all demands, whether arising
on contract or in tort, where there is no safe guide to determine
the extent of the levy.
§ 66. The Legislature paved the way for this position in
1866 by including conversion with actions on contract. In
the one case the damages are fixed by the market valuo of the
property converted, and in the other by the agreement of the
parties. The Code of Civil Procedure went the rest of the
distance by excluding from the operation of the Statute only
personal torts, and the action of breach of promise, which is in
effect an injury to the person. Of course there is still an im-
plied bar to all such actions, otherwise within the letter of the
statute, which offend a subsequent provision of the Code
requiring a statement of the exact amount of the claim.
§ 67. Loss of Goods by Common Carriers. Prior to the new
Code all actions ex delicto (except for conversion) were, as we
have scen, excluded. As the former provisions are still retained
in nearly all the Code states, it is still necessary to consider
the condition of the law applicable thereto. There are certain
causes of action which, though arising on contract, may be said
to sound in tort. Are such actions within the statute? Thus,
actions against common carriers for the loss of goods intrusted
to their care are grounded upon the bill of lading, or upon an
implied contract to carry the goods safely. As being founded
upon this contract they are within the rule; but a common
carrier, being a servant of the public, owes a duty to the pub-
lic that all goods intrusted to him will be carried safely, and
the breach of that duty is a public wrong, and one for which
he is liable for damages in an action ex delicto. Actions of
this nature in New York State are now expressly included;
but do they come within the clause generally prevailing in
attachment cases of "Actions on contract for the recovery of
money only ?" It will be remembered that the case of Saddles-
rene v. Arms discriminates against torts only where the rule
38
THE LAW OF ATTACHMENT.
Actions Ex Delicto-Breach of Duty.
of damages are not governed by any fixed rules of computation.
The rule of damages in this case would be the actual value of
the goods, and even considered as an action of tort, the real
foundation being the contract upon which the duty arose, it
would seem to be within the statute, and that an attachment
would lie in such actions.
§ 68. The Rule Adopted by the Supreme Court. But at this
point we are met with the General Term decision of the
Supreme Court, in the case of The Atlantic Mutual Life In-
surance Company v. McLoon,' which denied the right of
attachment under such circumstances.
This action was for the recovery of damages for the loss by
negligence of goods which the defendant undertook as a com-
mon carrier to convey from Boston to Hong Kong, China. The
plaintiffs obtained an attachment against the defendant under
section 227 of the Code of Procedure, alleging him to be a non-
resident of the State of New York, "and that he is indebted to
the plaintiff in the sum of $13,000.” It further appears from
the plaintiffs' affidavits that the property was insured by the
plaintiffs for the sum of $13000, and that upon paying that
amount to the consignor they took an assignment of all his inter-
est in the goods, and thereupon commenced suit by attachment.
The warrant was dissolved at Special Term on the plaintiffs'
papers. The plaintiffs appealed to the General Term, and the
SpecialTerm order was sustained. The Court, per Leonard, J.,
said, "All actions of a common law nature are for the recovery
of money only, but as now limited it must also arise on contract.
No debt arises from the negligent loss of goods by a common
carrier. Ile is not an insurer for the safe delivery of the
goods, potwithstanding he has contracted to safely deliver
them from one port to another. He is held liable for loss by
negligence, not from any contract against negligence, but be-
cause such a loss arises from a breach of duty imposed by the
trust or agency which he has assumed.”
"While the carrier has the goods safely in his possession
* 48 Barbour, 27.
THE CAUSE OF ACTION.
39
Actions Ex Delicto—Breach of Duty.
he holds them under a contract, and on demand by the owner,
and satisfaction of the carrier's lien, an action would lie upon
his contract under an ordinary bill of lading to safely carry
and deliver the goods in case of a refusal of the carrier to
make a right delivery. The nature of the action is not the same
when it arises from a negligent loss. The negligence is the
cause of action, and it is in the nature of a tort, not much less
culpable than it is for one carelessly to injure and destroy the
property of another. It seems to me that this is clearly not
an action arising on a contract."
§ 69. Effect of this rule.—Public and private duties. If the
principle established in the foregoing case is to be observed,
then an attachment cannot lie for a breach of contract, where
the gravamen of the charge is also a breach of duty. But may
not the court, in that case, have confounded the principles
applicable to public and private duties? Every contract
imposes a legal duty, and the neglect of that duty is, morally, a
tort. And where the contract is made with the public, either
expressly, or impliedly by virtue of custom, then that tort is a
legal one, for which an action ex delicto will lie. But where
the contract is made with an individual, the breach thereof
is lessened in magnitude, as it solely concerns individual
rights. The action is, therefore, assumpsit for the breach of
contract, and not tort for the breach of duty. In the case of
common carriers, there is both a public and private duty-a
public duty under the custom, and a private duty on the con-
tract, or undertaking to carry the specific goods in question.
In such a case, Chief Justice Savage,' on a review of all the
authorities, English and American, lays down the rule as fol-
lows: "I apprehend the true rule now is, that an action solely
upon the custom is an action of tort. The plaintiff has his
choice of remedies, either to bring assumpsit or case; and
that when one or the other action is adopted, it must be gov-
erned by its own rules. But if the plaintiff states the custom,
and also relies on an undertaking, general or special, as in
The Bank of Orange v. Brown, 8 Wend. (N. Y.) 158.
A
40
THE LAW OF ATTACHMENT.
Actions Ex Delicto-Breach of Duty.
Boson v. Sandford (1 Shower 29 and 101), then the action is
said to be ex delicto quasi ex contractu, but in reality, is
founded on the contract, and to be treated as such." In the
case of the Atlantic Mutual Insurance Company, the special
undertaking is distinctly set forth, but the court refused to
treat it as an action on a contract.
8 70. Distinction between negligence and malice. Might
not the court, in that case, have erred in construing the acci-
dental loss of goods by a common carrier as so essentially
tortious that an action could not lie for a breach of the con-
tract to transport the same goods safely? What matters it to
the consignor what the cause of the non-delivery is, so long as
the goods do not reach their destination? The court held that
if the defendant had safely transported the goods, and then
refused to deliver them, an attachment would lie, as the refusal
is not a tort, but a breach of contract, simply; but if the defendant
failed to perform his contract, on account of a loss of the goods
by negligence, an attachment will not lie, for it is not a breach
of contract, but a tort. In other words, a mere accident, suf-
fered without malice, is a greater wrong than the willful per-
formance of an illegal act! A decidedly different view was
taken by the Court of Appeals of this State, in the case of
Salt Springs National Bank v. Wheeler.' This was an action
for damages, on account of the conversion of certain bills of
exchange that were lost, mislaid, or destroyed through the neg-
ligence of the defendant. The court, per Hunt, J., said:
"The advantage of an action of trover, rather than an action
of assumpsit, in the collection of a debt, is apparent. It gives a
right to hold to bail during the pendency of the action, and the
right of imprisonment upon an execution, in addition to the
usual resort to the property of the defendant. To procure this
advantage, the plaintiffs have passed by this plain and obvious
remedy of an action against the defendant for a breach of
contract, and have brought an action of trover. To
constitute a conversion, the destruction must have been inten-
148 N. Y. 492.
THE CAUSE OF ACTION.
41
Actions Ex Delicto-Breach of Duty.
tional, not an accidental act. Thus, a mis-delivery of goods
by a bailee is a conversion. But the accidental loss by a
carrier is not. The accidental loss or destruction of an article
by one lawfully in possession, has never been held to be a con-
version."
871. The right of election.-The true rule under the old
Code. I think the court erred, also, in considering the cause
of action exclusively ex delicto. The rule, both in this country
and England, gives the plaintiff the option of declaring in
assumpsit or in case.' And the action for the tort, in such
a case, though not directly brought for a breach of the con-
tract, indirectly proceeds upon a breach of duty arising from
the existence of a contract. As being for a breach of duty, it
is, in form, an action of tort. As being for the breach of a
contract, it is in essence, ex contractu. We have, under the.
Code, abrogated the form and retained the essence of common
law actions. Does it not follow, under the Code practice, that
such actions must be treated as for the breach of a contract,
and hence "arising on contract?" It may be objected that
this conclusion is founded upon assumption, to wit: that they
are essentially actions on contract. True, but the assumption
is grounded on well-settled common law rules. Chief Justice
Mansfield, in the case of Powell v. Layton,' which was an
action for the breach of duty by a common carrier for not
delivering certain articles, said: "The word 'duty' is intro-
duced into this declaration, but let us see what is meant by the
defendant's duty. How did he undertake any duty, except by
his agreement to carry and deliver the goods? The duty of a
servant, or the duty of an officer, I understand; but the duty
of a carrier I do not understand, otherwise than as that duty
arises out of the contract. Suppose a man undertakes to sup-
1 Addison on Torts, 8d Ed. 13; Boson . Sandford, 1 Shower, 29;
Deveraux t. Barclay, 2 B. & A. 702; Stephenson v. Hart, 4 Bing. 476;
Austin v. G. W. R. R. Co., 86 L. J., Q. B 202; Tattan ». The Same, 2
El. & El. 844; Tolano v. National Steam Navigation Co., 5 Robt. (N. Y.)
818; The Bank of Orange v. Brown, 8 Wend. (N. Y. ) 158.
• N. R. 365.
42
THE LAW OF ATTACHMENT.
Actions Ex Delicto-Breach of Duty.
ply me, as a builder, with timber and with other materials for
building. He imposes on himself the duty of performing his
contract, but no other duty; and I may maintain an action
against him for a breach of the contract, which, in that sense,
will be a breach of duty. : I suppose there can be no
doubt, that if a common carrier accept goods to carry and then
dies, an action will lie against his executors. How is that?
Why, because the action is founded on contract. But the form
of the action cannot alter the nature of the transaction. The
form of the transaction is originally contract, and the circum-
stance of an action lying against the executors shows that it
is so."
$
§ 72. Necessity of proving the original contract. That the
action of tort, arising from a breach of duty, is essentially an
action upon the contract under which the duty arises, is evi-
dent, also, from the nature of proof required to sustain it. It
is a well-settled rule of law, that unless the original contract is
valid and binding in law, there can be no legal duty; hence, no
breach of duty. Thus where the contract is in parol, when by
law it should be in writing, no duty arises, and the action
thereon will not lie.'
§ 73. Will an action of debt lie "No debt arises," says
↑
Justice Learned, in the case of the Atlantic Mutual Insur-
ance Company, "from the negligent loss of goods by a com-
mon carrier
notwithstanding he has safely contracted to
deliver them from one port to another." If he has contracted to
deliver them to a foreign port, and fails to do so, a breach of
contract arises, and that is all our statute calls for. But debt also
arises, for a breach of contract constitutes a debt.' In the civil
•
¹ Carrington v. Roots, 2 M. & W. 255; Addison on Torts, 3d Ed.
915. This would seem to indicate that the custom is in the nature of
an implied contract which is only enforceable in the absence of an
express contract.
'Weaver . Puryear, 11 Ala. 941; Fisher v. Consequa, 2 Wash. C. C.
(Pa.) 882; In re Marty, 3 Barb. (N. Y.) 229; Jacoby v. Gogell, 5 S. &
R. 450; Mill-dam Foundry. Hovey, 21 Pick. 445; Lenox v. Howland, 8
Caines (N. Y.) 823.
THE CAUSE OF ACTION.
43
Actions Ex Delicto-Breach of Duty.
law, a debtor is considered as one who owes reparation or
damages for the non-performance of his contract. Blackstone's
definition of a debt as "inoncy due by a certain express agree-
ment,”¹ has been changed in this country so as to include money
due from the breach, as well as for the performance, of an
agreement. But the former rule is sufficient, if given in full.
"If," says Blackstone, "the bailee loses or detains a sum of
money bailed to him, he becomes indebted to the bailor upon
the same numerical sum upon his implied contract. In express
contracts, a promise to deliver any property or goods specified
in the agreement makes the promisor debtor to the promisee
for these goods, and the things promised constitute a debt.”
And again he says: The action of debt is not confined to
contracts for money alone. Its form is sometimes in the debet
and detinet, and sometimes in the detinet, as in an action for
goods, for a horse, &c. And in Chitty on Pleadings, it is
stated that "an action of debt lies in the debet for goods, as on
a contract to deliver a quantity of malt, &c." There seems,
therefore, to be sufficient authority for the position that debt
arises whenever one fails to deliver goods according to the
terms of the existing contract, express or implied.
§ 74. Opinion of Chief Justice Story. Judge Story, in
Carver v. Braintree Manufacturing Company, gathers from
Blackstone's Commentaries an entirely distinct theory for up-
holding the same principle. He says: "The Supreme Court
of Massachusetts in the Mill-dam Foundry v. Hovey, 21 Pick.
445, held, under the Statute of 1829, ch. 53, sec. 6, which
makes the stockholders liable for the debts of the corporation,
that the term 'debts' included a claim for unliquidated dam-
ages. That was a case arising ex contractu, but the language
1 2 Blackstone's Com. 464.
• Black. Com. 465.
• 8 Black. Com. 156; "that is, the writ states, either that the defend-
ant owes, and unjustly detains the debt or thing in question, or only
that he unjustly detains it." Id.
* 2 Story (Mass.) 432.
A
44
THE LAW OF ATTACHMENT.
THE
Actions Ex Delicto-Breach of Duty.
certainly extends the term 'debts' beyond its close and literal
meaning. And if it covers cases of unliquidated damages,
ex contractu, it is difficult to say why it should stop there, and
not go further, and cover a class of unliquidated damages
arising from torts to property. In each case there is no debt
until the damages are ascertained and liquidated; and then
the debt seems to relate back to its origin. Blackstone says,
'A debt of record is a sum which appears to be due by the
evidence of a court of record; thus, when any specific sum is
adjudged to be due from the defendant to the plaintiff in an
action or suit at law, this is a contract of the highest nature,
being established by the sentence of a court of judicature.'
Here Blackstone manifestly includes all sorts of actions or
suits where the judgment is for a sum certain, whatever may
be its nature or origin." It seems clear, in common
parlance as well as in law, the term is in an enlarged sense
sometimes used to denote any kind of a just demand, and in
the Roman law, it had sometimes the like enlarged signification.
Sed utrum ex delicto an ex contractu debitor sit, nihil refert,
says the Digest
I have at length come to the con-
clusion that the rejection of the witness as an interested wit-
ness was right." This was an action of tort for the infringe-
ment of a patent, and the witness was a former stockholder of
the corporation plaintiff, and was objected to on the ground of
interest, he being liable for the "debts" of the corporation.
I deem it safe, therefore, to assert in the language of the civil
law that a debt arises wherever one owes reparation or damages
to another for the non-performance of a contract. Under this
rule a common carrier is a debtor to the shipper where he fails
to perform his contract to safely deliver the goods intrusted to
him.
875. American Decisions. It is not necessary, however,
to rest this rule on general principles alone; the books are
filled with cases where common carriers are held liable in
assumpsit for failure to perform the conditions of the bill
THE CAUSE OF ACTION.
45
Actions Ex Delicto-Breach of Duty.
of lading, and this both under the common law and Code of
Procedure.
In this State the question as affecting the right of attach-
ment was first presented, and passed upon in the leading case
of Lenox v. Howland,' decided in the old Supreme Court in
the year 1805. As this case touches every point made by the
court in the Atlantic Mutual Life Ins. Co. v. McLoon, which
arose upon the same state of facts, we append the views of the
court in full.
§ 76. "The court having on a former day allowed the
plaintiffs to show that they had such a demand against the
defendants as would warrant the attachment, Hoffman now
read an affidavit, by which it appeared that their claim was
founded on the contract contained in a bill of lading for the
delivery of goods shipped on board the defendants' vessel.
Per Curiam, delivered by Livingston, J. We are to deter-
mine, not whether the affidavit now read would have been the
proper basis of an attachment, but whether the demand, as
now disclosed, is sufficient to support it. Although by the terms
of the oath the creditor is to swear that the party is indebted
to him in the sum of $100 or upward, it does not follow that
the demand is to be so certain as to fall within the technical
definition of a debt, or as to be susceptible of liquidation with-
out the intervention of a jury. The law is remedial, and
should be so construed as to embrace as many cases as possible.
Being indebted is synonymous with owing; it is sufficient,
therefore, if the demand arise on contract. The other pro-
visions of the act plainly indicate that its relief was to extend
thus far at least, and, if the whole act be construed together,
leave but little or no doubt on the subject. The 16th section
declares, that in case a controversy arise concerning any claim,
debt or demand respecting the estate of the debtor, the trustees
may have it settled by reference; and, by the 21st section, the
attachment may be superseded if the debtor will give security
to appear and plead to any action to be brought against him in
'8 Caines (N. Y.) 323.
46
THE LAW OF ATTACHMENT.
Actions Ex Delicto-Breach of Duty.
any court of law or equity, and to pay such sum as shall be
recovered against him. It is very evident from these sections
that it was not intended to confine the remedies, either in
favor of or against such estate, to cases of ascertained and
liquidated debts. Else why speak of any claim in the first,
and why compel, by the other, the party, in order to get rid of
this process, to appear to any suit in law or equity? These
terms are broad enough to include at least all demands origin-
ating in contract. Nor can it make any difference whether
the goods in the present case were not delivered at all, or de-
livered in a damaged condition. In either case the demand
arises on the bill of lading. Nor ought the form of declaring
to vary the case.
the case. In the first case, the party might certainly
declare, generally, that the goods did not come to hand, without
stating that this was owing to the negligence or carelessness of
the master; and if this general form of declaring cannot be
pursued in the latter case, it can and ought to make no differ-
ence. In both cases the owners are liable on the contract of
the master, as much as if they had signed it themselves. Nor
can the difficulty of ascertaining the precise damage make any
difference. This must always be more or less liable to some
uncertainty. To obtain a liquidation a reference may be re-
sorted to, and, if the trustees will not submit to one, they may
be sued, and a jury will settle the quantum of the demand.
If a carpenter contracts to build a house for a given sum, and
does it so negligently that it falls the very day it is finished,
and then absconds possessing a large property, it would be
strange that I should have no remedy, because it be necessary
to declare against him for a misfeasance or non-feasance, or
because it may require some little calculation to settle the
damages. The substantial inquiry, in this stage of the pro-
ceeding, must be to ascertain whether the party has a legal
claim arising on contract, not by what kind of action it is to
be enforced, which has ever appeared to me a very fallacious
mode of testing questions of this kind. From the whole tenor
of the act it is very evident, whatever may be the phraseology
of its first clause, that its design was to place the property of a
THE CAUSE OF ACTION.
47
Actions Ex Delicto-Breach of Duty.
debtor in trustees for the payment, not solely of debts within
the legal acceptation of that term, but of every demand con-
tracted against his estate, as well those due to the attaching
party, as to others; and in like manner to give the trustees a
remedy as broad against third persons. If we once begin to
refine or make nice distinctions on this subject, no one can say
where we shall land. The act will soon be repealed, or become
a dead letter. As this demand then is founded on contract,
it can be of no importance in what way the injury arose, nor
can we say it is of a kind not to support the attachment.
The supersedeas is therefore denied."
§ 77. About one hundred years later (1880) this principle was
again recognized in the highest court of the State. In Catlin
v. Adirondack Company, an action was brought to recover for
the loss, by negligence, the value of three trunks intrusted by
plaintiff to defendants as common carriers. The complaint
alleged, "That the defendant undertook and became responsible
to the plaintiffs for the due and safe transport of said trunks to
their said destination." The defendant having succeeded on
the trial, the question arose as to whether the action was in tort,
rendering the plaintiff liable to an execution against the person
for costs. The Special Term held that it was on contract, and
vacated the execution. The General Term reversed the decision,
but it was subsequently affirmed in the Court of Appeals.'
The only published opinion is that of the General Term (20 Hun,
19). This position is upheld by a long line of judicial decisions-
some upon the question of tort simply, others upon the direct
application to attachment. Thus in Louisiana, in the case of
Hunt v. Norris,' the court held that an attachment would lie, in
an action by a shipper against the owners of a vessel, to recover
the value of goods shipped from New Orleans to Natchez,
which the plaintiff alleged to have been "lost and destroyed by
the negligence and improper conduct of the defendants,” under
a statute limiting attachments to the case of "debts." The
1 81 N. Y. 639.
• 4 Martin (La.) 517.
A
48
THE LAW OF ATTACHMENT.
Actions Ex Delicto-Breach of Duty.
court made use of the following language: "The judge erred,
we think, in considering the obligation of the defendant to
indemnify the plaintiff for his loss, as arising ex delicto and
not ex contractu. It is clearly one arising out of a contract of
bailment, and which, in conformity with the proper acceptation
of the word 'debt,' authorizes the plaintiff to have his attach-
ment. The gist of the action is the breach of contract, the non-
delivery, not the willful destruction of the goods."
§ 78. Other Instances. In the case of New Haven Saw
Mill Co. v. Fowler,' the Supreme Court of Connecticut upheld
an attachment in an action to recover damages for negligence
in towing a raft of logs from New York to New Haven, by
means of which negligence the raft was broken up, the logs
scattered and a large part lost.
So in Indiana it was decided that an attachment would lie
for an injury to goods sustained through the negligence of a
common carrier who had undertaken to carry them safely to the
point of their destination; and in Arkansas the court held that
an action for damages in the breach of a contract to tow and
deliver at specified places a large quantity of corn, would war-
rant an attachment."
$79. Under the Iowa Code. The Revised Statutes of
Iowa (§ 3177) provide that if the demand is not "founded on
a contract," the petition for an attachment must be presented
to some judge for an allowance of the value of the property
that may be attached. Under this provision there are several
important decisions upon the point whether certain actions are
or are not "founded on contract.'
99
As the practice of lowa is under a code substantially
copied from that of New York State, these decisions are of
peculiar importance in this State. The latest test case under
the above provision arose in 1870, and was passed upon by the
Supreme Court. The attachment was granted without an
128 Conn, 103.
Bausman v. Smith, 2 Ind. 874.
* Jones v. Buzzard, 2 Ark. 415.
THE CAUSE OF ACTION.
49
Actions Ex Delicto-Breach of Duty.
application for allowance, in an action to recover the value of a
large quantity of wheat stored with the defendant, to be rede-
livered to the plaintiff on demand. The defendant, without
any authority from the plaintiff, sold and shipped the goods to
a third party. The plaintiff, after demanding the wheat from
the defendant, commenced this action, alleging, among other
matters, in his complaint and affidavit, that the defendant
wrongfully and willfully converted the said wheat to his own
use. The defendant's counsel claimed that from the plaintiff's
own papers, the action was founded on a tort for conversion,
and not upon a contract, and that consequently an allowance
should have been first secured from the judge granting the
order. Per curiam, per Miller, J.: "We are clear this action
is not founded on tort. It is most manifestly an action to
recover for the breach of an alleged contract. The gravamen
of the action is the failure of the defendants to deliver to the
plaintiff on demand the wheat stored by him with the defend-
ants, according to the contract alleged. The allegation of the
petition that the defendant had shipped and sold the grain,
and thereby converted it, is an unnecessary averment. It was
but evidence and should not have been stated, and might have
been stricken out on motion. It was proper evidence to show
that defendants had disabled themselves from delivering the
wheat according to the contract stated. The action is founded
on the contract alleged. The facts are stated, and the right to
recover based upon the alleged breach of the contract. Even
under the old common law forms of pleading a party could
waive the tort and sue in assumpsit. Under our statute all
forms of action and pleading are abolished, and the plaintiff
recovers, if at all, on the facts stated and proved; and where,
as in this case, the facts alleged show that the plaintiff's right
of action arises out of a breach of contract, no allowance is
necessary previous to suing out an attachment.”¹
§ 80. The Bule in Pennsylvania. The only reported decis-
ion denying an attachment in such a case, except that of the
1 McGinn v. Butler, 81 Iowa, 100.
8
4
50
THE LAW OF ATTACHMENT.
Actions Ex Delicto-Breach of Duty.
Atlantic Mutual Insurance Co., arose under the common law
practice of Pennsylvania. The court there held that the plaint-
iff had his right of election to sue in assumpsit under the im-
plied contract, or in case under the breach of duty; that having
elected to consider the offense as a tort for the purpose of su-
ing less than the full number of defendants, he could not after-
wards deem it ex contractu for the purpose of attachments.'
§ 81. Application of this rule. That this decision is not
applicable to the Code practice is apparent from the opinion of
the court in McGinn v. Butler (supra); and in Lenox v. How-
land the converse of the proposition was established under the
common law practice in this State. I am therefore of the
opinion that as an American doctrinc it may be safely asserted
that an attachment will lie, as for a breach of contract, in an
action against common carriers for non-delivery of goods which
they have undertaken for hire to transport safely from one
place to another. In this State the new Code, which took effect
May 1st, 1877, expressly provides that an attachment may issue
in an action founded on the negligent loss of goods, and the
principles here discussed, although applicable in nearly all the
States, only cover actions commenced here under the former
Code of Procedure.
§ 82. Waiving the tort. The rule is established beyond
peradventure, in this country, that where there is a breach of
duty, under the custom, the plaintiff may, at his option, waive
the tort, and sue in assumpsit for a breach of the implied con-
tract,' and that, in such an action, an attachment would lie.
§ 83. Distinction between case and assumpsit. But the line
of demarkation between case and assumpsit is often difficult to
trace. It may be stated, as a guiding principle, that if the
cause of action, as stated, arises from a breach of promise, the
¹ Porter v. Hildebrand, 14 Pa. St. 129.
* Addison on Torts, 3rd Ed. 913; Boorman v. Brown, 32 Q. B. 511;
Frink . Potter, 17 Ill. 406; Coggo v. Bernard, Smith's Leading Cases,
6th Ed. 177.
THE CAUSE OF ACTION.
51
Actions Ex Delicto—Right of Election.
action is assumpsit and ex contractu; but if it shows a breach
of duty, and no undertaking or promise is alleged, it is ex
delicto and case.¹
§ 84. Form of Complaint. Whether or not the action is
tort, depends, therefore, on the substance of the complaint or
declaration.'
The criterion in England, as laid down in Smith v. Seward,'
is not only in the absence of the averment of promise, but of
consideration. The pleader, therefore, to bring himself within
the strict ruling of this court, should set forth not only the
undertaking of the defendant to carry the goods, but that such
undertaking was founded upon a valid consideration. Chitty
on Pleadings* gives the common law forms applicable to these
cases, both in assumpsit and case. He does not require the
allegation of a consideration to constitute an action of assump-
sit, but substitutes the element of a request. In this country,
the allegation of a special undertaking is sufficient to constitute
an action quasi ex contractu.*
§ 85.
Right of election extends to pure torts in certain cases.
There is another class of actions that are, in their nature,
pure torts, unconnected with contracts, wherein the plaintiff
may waive the tort, and sue in assumpsit under an implied
promise. Thus, when goods have been taken from the plaint-
iff unlawfully, or unlawfully detained from him, the natural
cause of action is replevin, trespass or trover; all actions ex
delicto. But if the wrongdoer has sold the goods, and received
the money,
the plaintiff may waive the tort, affirm the sale and
maintain an action for money had and received, for the proceeds."
¹ Wilkson v. Mosely, 18 Ala. 288.
• Hilliard on Remedies for Torts, 189.
* 3 Pa. St. 342; following Corbett v. Packington, 6 Barn. & Cress. 268.
42 Chitty, 117 and 271.
• Bank of Orange v. Brown, 3 Wend. (N. Y.) 158; Catlin . Adiron-
dack Company, 81 N. Y. 879; reversing S. C., 20 Hua, 19.
• Willet o. Willet, 8 Watts (Pa.) 277; Pritchard v. Ford, 1 J. J.
Marsh. (Ky.) 543; Sanders v. Hamilton, 3 Dana (Ky.) 552; Stockett v.
Watkins, 2 Gill & J. (Md.) 326; Bank of North America v. M'Call, 4
52
THE LAW OF ATTACHMENT.
Actions Ex Delicto-Right of Election.
§ 86. Reason and application of this right. In actions of
this nature, the law presumes that, in selling the goods, the tres-
passer acted as agent for the true owner, and he is not permit-
ted to plead his own wrong, in rebuttal of this presumption.
The action is, therefore, on an implied contract of agency, and
it is, doubtless, within the provisions of the statute, although
no decisions have arisen upon this point. The right of election
also arises where goods are wrongfully sold by the bailee with
whom they are deposited.' Or where the pledgees refuse to
restore pledged property, upon request, and tender of perform-
ance of the obligation, to secure which the pledge was made.'
8 87. Does the right extend to a mere conversion? The
courts are about equally divided upon the question whether
assumpsit may be maintained for the value of the goods, under
an implied contract of sale, where the property is simply con-
verted by the defendant. The later cases in Maine,' Vermont,*
New Hampshire,' Alabama and Maryland' holding that an
election cannot be made until the property converted has been
turned into money. The contrary rule has been adopted in
Tennessee," Arkansas, Iowa," Indiana," and Michigan," the
Binn. (Pa.) 874; Alsbrook v. Hathaway, 8 Sneed (Tenn.) 454; Staut v.
Evans, 85 Ill. 455; Budd. Hiler, 27 N. J. L. 43; Hutton v. Wether-
ald, 5 Harr. (Del.) 38.
1 Berly. Taylor, 5 Hill (N. Y.) 577.
• International Bank v. Montcath, 39 N. Y. 297.
Balch . Patten, 45 Me. 41.
• Stearns v. Dillingham, 22 Vt. 624; Winchell . Noyes, 23 Vt. 303.
Smith v. Smith, 43 N. H. 536; Allen v. Woodward, 22 Id. 544.
• Strother . Butler, 17 Ala. 733; Pike . Bright, 29 Ala. 832; Fuller
*. Duren, 36 Ala. 73.
* Cecil v. Rosc, 17 Md. 92. So held also in Illinois, O'Reer v.
Strong, 13 Ill. 688. In Massachusetts, Jones v. Hoar, 5 Pick. (Mass.) 285;
In Pennsylvania, Gray v. Griffith, 10 Watts (Pa.) 431; and in Wiscon-
sin, Elliot . Jackson, 8 Wis. 649.
• Alsbrook ». Hathaway, 8 Sneed (Tenn.) 454.
⚫ Janes ⚫. Buzzard, 2 Ark. 415.
10 Goodenow v. Snyder, 8 Iowa, 599,
11 Jones v. Gregg, 17 Ind. 84.
12 Hancock Mut. Life Ins. Co. v. Moore, 12 Mich. 42.
THE CAUSE OF ACTION.
53
Actions Ex Delicto-Conversion.
courts there holding that an action will lie in assumpsit for
the value of the goods converted, although the wrong-doer still
retains possession. The same rule was adopted in the Com-
mon Pleas in this State,' but the safest course here is to sue
for the conversion, as the statute now gives the right of attach-
ment in such actions."
8 88. Breach of promise cases. There are a class of actions
arising nominally on contract that partake, nevertheless, of the
nature of personal torts, and should be classed with that family.
Principal in this class is the action for the breach of promise of
marriage. The contract is not in any sense a pecuniary one,
although the only remedy for the breach, allowed by the law,
is money. The measure of damages, however, is governed by
the circumstances of each particular case, and is entirely in the
discretion of the jury; the same as in ordinary actions for per-
sonal torts. Both the nature of the action, and the rule of
damages exclude the right of attachment in such actions,
although they "arise on contract," and are "for the recovery of
money only." The new Code expressly exempts these actions
from the operation of the Act.
§ 89. Conversion. In this State, as we have seen, the
right of attachment has been extended to action for the wrongful
conversion of personal property. Every conversion of property
belonging to another must of necessity be wrongful, and every
unlawful detention of property is in itself a conversion. This
action, however, only arises where there is an absolute appro-
priation of the property by the defendant to his own use, or
what is equivalent, parting with it to others, without the
'Chambers v. Lewis, 2 Hilt. (N. Y.) 591; Ely v. Ehle, 3 N. Y. 506;
Barrett v. Warren, 8 Hill, 848; Cummings . Vorce, Id. 282; Rogers v.
Arnold, 12 Wend. 80.
• § 227, as amended in 1866.
* Barnes . Buck, 1 Lans. 268; Thorn v. Knapp, 42 N. Y. 474;
Maxwell . McBrayer, Phillips (N. C.) 527.
* Barry v. Fisher, 8 Abb. N. S. (N. Y.) 369.
A
54
THE LAW OF ATTACHMENT.
Actions Ex Delicto-Fraud.
authority of the owners. An attachment under the Code of
Procedure would not, therefore, lie in an action for the alleged
conversion of a trunk and contents, when the defendant lost it
while in his charge as a bailee for hire. Under the Remedial
Code, an attachment will lie in an action for the negligent
loss of the goods in such a case, or under the breach of con-
tract for safe keeping.
When the plaintiff seeks to charge a bailee for a conversion
of goods on account of their loss or destruction, he must show
that the injury was intentional, not accidental. A misdelivery
of goods is a conversion, but the accidental loss by a common
carrier is not.' And in no case can the failure to deliver that
which is not in being, and cannot be delivered, furnish any
evidence either of conversion or an appropriation by the.
defendant.
1
§ 88. Fraud is the connecting link between case and
assumpsit. Actions for fraud are, however, ex delicto, and do
not arise on contract. On the contrary, fraud vitiates all con-
tracts into which it enters, and the action must be directly for
the tort. It is not, therefore, within the terms of the statute,
an action on contract. The contrary rule seems to be estab-
lished in Scott v. Simmons. There it appeared that plaintiff
sold and delivered merchandise to the defendant on credit, and
that the purchase was effected by means of fraudulent repre-
sentations. The plaintiff, before the credit had expired, dis-
¹ Tolano . National Steam Navigation Co., 5 Robertson (N. Y.) 818;
Devereux v. Barclay, 2 Barn. & Ald. 702; Stephenson v. Hart, 4 Bing.
476.
• Tolano v. National Steam Navigation Co., supra.
Bromley. Coxwell, 2 B. & P. 438; Cairns v. Bleecker, 12 Johns.
(N. Y.) 800; Jennis v. Joliffe, 6 Id. 9.
Salt Springs National Bank v. Wheeler, 48 N. Y. 492; Decker v.
Mathews, 12 N. Y. 813; Murray v. Burling, 10 Johns. R. (N. Y.) 72.
• Knapp v. Meigs, 11 Abb. N. S. (N. Y.) 405; but such an action
would be within the terms of the new Code. See § 92 et seq.
• 34 How. (Sp. T.) 66.
THE CAUSE OF ACTION.
53
•
Actions Ex Delicto-Fraudulent Representations.
affirmed the contract of sale, and, in an action for the fraud,
secured an order of attachment which the court upheld. The
case is not fully stated, and it may be true, as suggested
in Knapp v. Meigs that the action was for the conversion of
the goods. If so, the decision is doubtless correct. If, on the
other hand, the action was for fraud, the rule laid down by the
court was clearly erroneous, as one cannot be said to sue upon
the contract which he expressly disaffirms.
8
§ 91. Application of the term "injury to property." The
Code of Civil Procedure extended the right of attachment to
ali property torts. This was done by adding to the previous
provisions in favor of breach of contract and conversions;
"Any other injury to personal property, in consequence of
negligence, fraud, or other wrongful act." The term, "injury
to property," is stated in section 3343, subdivision 10, to be
any "actionable act whereby the estate of another is less-
ened, other than a personal injury, or the breach of a contract.”
In other words, common law actions are divided into three
general classifications: 1st, Breach of contract, which includes
all actions ex contractu; 2d, injury to person; 3d, injury to
property, the last two including all actions ex delicto. Hence,
every cause of action that is neither assumpsit nor an injury to
the person, must fall under the head of "injury to property,"
and become the proper foundation of attachments.
§ 92. Fraudulent representations. The cause of action
arising against one who has, by deceit, or through fraudulent
representations, obtained the loan of money, the purchase of
goods, or any property of another, is doubly within the statute:
1st, Because it is an actionable act, whereby the property of
another is lessened, and is neither a breach of contract-the
frand vitiating the contract-nor an injury to person; and 2d,
Because the clause in the statute specially refers to such
actions. The language of the Code is: Any other injury
to personal property in consequence of fraud." In other
(6
• •
§ 635, subd. 8.
•
M
56
THE LAW OF ATTACHMENT.
Actions Ex Delicto-Fraudulent Representations.
words, every case where by fraud a person has been deprived
of his property. It would seem that sufficient doubt could not
exist, on this point, to form the subject of any legal contro-
versy. Yet the General Term of the First Department have
been reported in favor of the exclusion of such actions as the
foundation of attachment proceedings under section 635 of
the new Code.'
The reasons specified for this ruling was that Section 635,
which designates the actions in which a warrant of attachment
may be granted, contains no reference to claims resting upon
the allegations of fraud in contracting a debt, the learned court
stating that: "It is not provided by either section 635 or 636
that an attachment may issue in an action brought to recover
the price or value of goods which were obtained by false rep-
resentation." The court then adds, probably in view of the
case of Scott v. Simmons, that: "It may be that if the action
were trover under section 635, an attachment might issue.
But that question is not involved upon this appeal, and it is
not, therefore, necessary to consider it."
This decision is the foundation for the exclusion of attach-
ments in all actions based on fraudulent representations in the
purchase of goods, and has since been so applied by the courts
in this State. Such a construction is neither warranted by the
Code, nor by the facts in that case. An examination of the
printed case and points on appeal, shows tlfat the affidavit relied
on fraudulent representations as ground of attachment, as well
as the cause of attachment on which it was based. No separate
ground of attachment was stated, and none of the requisites
specified in section 636 were set forth. This omission the
counsel for the defendant claimed to be fatal, and it was the
only point raised by him on the argument. That the objection
was well taken, cannot be doubted, and the decision of the
General Term was properly given to vacate the attachment.
But from the printed report of the opinion, it would seem that
it was based on section 635, instead of 636, on the ground that
* Wittner v. Von Minden, 27 Hun, 234.
THE CAUSE OF ACTION.
57
Actions Ex Delicto-Fraudulent Representations.
subdivision 3 did not cover such actions. The point as to the
effect of the clause, "injury to property," was not raised, and
the decision, so far as it affects this question, may be deemed
obiter dictum. Both before and subsequent to the Code defini-
tion of "injury to property," the courts have included actions
of this nature within the meaning of that term.
In the case of Bogart v. Dart,' decided, in 1881, by this
same General Term, the attachment directed the seizure of so
much of the property of the defendant, Swezey, and of both
defendants, as co-partners, as would satisfy the plaintiff's
demand, consisting of the sum of upward of $62,000. The
liability was created by advances to that extent made upon the
faith of forged bills, notes and acceptances. The court held
that these facts created a cause of action in the plaintiff's favor
and against the firm, and it was an injury to personal property
within the meaning of section 635, subdivision 3, of the new
Code; for by subdivision 9 of section 2, chapter 449, Laws of
1876, and subdivision 10 of section 3343 of the Code of Civil
Procedure, any act other than a personal injury, by which the
estate of another is lessened or reduced, is declared to be an
injury to personal property.”
The reasons for the Code definition of injury to property
and its application to fraudulent representations, are clearly
and concisely given by Justice Barrett, in the case of Eyepert
v. Bolenius."
In that case it appeared from the affidavit, which is reported
in full, that the defendant, a married woman, procured a loan
from the plaintiff on the pledge of certain bonds which she
falsely represented to be good and valid, but which were, in
fact, forged and worthless; and the nature of the action was
stated as follows:
"This deponent has in this court commenced an action
for the recovery of said one thousand and forty-five dollars
against the above named defendant by summons. No part of
said money has ever been paid to her, although repeatedly by
¹ 25 Hun, 395.
* 2 Abb. N. C. 193.
58
THE LAW OF ATTACHMENT,
Actions Ex Delicto-Conversion by Public Officer.
said defendant promised to be, and said defendant is now
indebted to deponent for said amount, with interest." The
defendant moved to vacate the order of arrest, on the ground
that a female can only be arrested in actions for" willful injury
to person, character or property," and that this was not such an
action. Relying on section 179 of the old Code, to the effect
that a female is exempt from arrest in an action to recover a
debt, although the debt may have been fraudulently contracted,
Justice Barrett upheld the warrant in the following opinion:
"The defendant was not arrested for fraud in contracting a
debt, but for damages on the case. The right to the use and
enjoyment of the money was property, as well as the money
itself. That right was not only willfully injured; it was will-
fully destroyed."
"The destruction consisted in the entire loss of the enjoy-
ment, which was property. The willfulness consisted in the
accomplishment of that destruction by the uttering of forged
instruments." This view of the question was taken in the
Court of Appeals, in the case of Duncan v. Katen, and was
previously held in several adjudged cases.
§ 93. Conversion by Public Officers. Section 637 provides
for attachment in actions to recover money, funds, credits or
other property, held or owned by the State or other public cor-
poration, and converted by a public officer. This is the only
case where the right of attachment arises solely out of the char-
acter of the action. In the cases specified, in sections 635 and
636, the ground of attachment is extrinsic from the cause of
action. The necessity for this separate provision first appeared
in the Tweed suit. The object of the section was not to extend
the remedy to a new class of actions, for the term "injury to
property" clearly covers these cases, but to extend the grounds
of attachment in such actions. It is clear to my mind that
the idea should be carried out to its legitimate end so as to
164 N. Y. 625; affirming 6 Hun, 1.
* Starr . Kent, 2 Code Rep. 80; Northern R. R. Co. v. Carpentier, 8
Abb. 259; Solomon v. Waas, 2 Hilt. 179.
THE CAUSE OF ACTION.
59
Actions Ex Delicto-General Rules.
require no new cause or ground of attachment in any case
where fraud or tort existed in the original transaction. In
other words, that in all actions for injury to property in conse-
quence of fraud or other wrongful act, the right of attachment
(the same as in arrest cases) should depend upon th
action, without other and subsequent frauds being (UNIVERSITY OF
au
exist.

MICHIGAN
If the transactions of a party are so iniquitous as to arow
preliminary seizure of his person to secure his subsequent
attendance on the trial, certainly it should permit the attachment
of his goods to secure the enforcement of the claim by execu-
tion. A party having a secret design of defrauding creditors,
may purchase goods under fraudulent representations while he
is utterly insolvent, and the vendor has no adequate protection.
He cannot attach until after some further fraud has been per-
petrated, and the result of the further fraud may be to place
the property beyond his reach. He cannot lock the stables
until the horses are stolen. This is evidently a casus omissus
in our system of attachment that should be supplied by appro-
priate legislation.
§ 94. General rules under the Code of Procedure in cases
sounding in tort. From a careful consideration of the princi-
ples governing the right of attachments in actions ex delicto
under statutes similar to the former Code, we may eliminate
the following propositions:
First. An attachment would lie in actions sounding in
tort in the following cases only:
1st. Where the action was so founded upon a contract as
to be sustained only by proving its terms and validity.
2d. In all actions upon the custom where the plaintiff
relies upon a special undertaking on the part of the defendant,
and the injury is to the property, and not the person of the
plaintiff.
3d. Where the natural cause of action is a pure tort to
property, and the plaintiff may and does elect to sue in assump-
sit under an implied promise.
60
THE LAW OF ATTACHMENT.
Actions Ex Delicto-General Rules.
4th. Actions of tort expressly included within the pro-
visions of the statute.
Second. An attachment would not lie in an action on con-
tract sounding in tort, where the injuries related to the person,
or were governed by the rule of damages applicable to per-
sonal wrongs.
Under the new Code an attachment will lie in all actions
ex delicto, excepting those relating to personal injuries.
•
THE CAUSE OF ACTION.
61
+
Ex Contractu-Unliquidated Damages.
CHAPTER IV.
ACTIONS IN WHICH THE DAMAGES ARE UNLIQUIDATED.
SECTION 95. Although the right of attachment is usually
confined to actions ex contractu, it does not follow that the
remedy will be granted in all such actions. We have seen
that in actions sounding in tort there is a discrimination against
all causes of action where the amount of recovery is entirely
in the discretion of the jury, and the case itself forms no stand-
ard upon which to base their verdict. The same rule applies
in actions ex contractu.'
"C
§ 96. General provisions. In this State attachments were
allowed under the old Code in all actions arising on contract for
the recovery of money only. Under the Revised Statutes'
and the Justices' Act it was allowed upon
a demand against
the debtor personally, whether liquidated or not, arising upon
contract." Under the Remedial Code the term used is "for
breach of contract." The same general provisions are con-
tained in the statutes of Alabama, California, Florida, Iowa,
Mississippi, Nevada, North Carolina, South Carolina, Virginia
and West Virginia. In a majority of the other States the
limitation is to "civil actions for the recovery of money." It
would seem that in these States actions for unliquidated dam-
ages would, under all circumstances, come within the terms of
But if the contract furnishes such standard, so that by virtue
thereof the plaintiff may safely aver it in his affidavit, or the jury render
verdict thereon, the remedy is applicable. See Wilson v. Wilson, 8 Gill
192; Peter v. Butler, 1 Leigh (Va.) 285; Hunt v. Norris, 4 Martin (La.)
517; Bausman v. Smith, 2 Ind. 874.
* § 227 Code of Procedure.
2 Rev. Stat. 3, § 8.
#
62
THE LAW OF ATTACHMENT.
TTACHMEN
Ex Contractu-Unliquidated Damages.
the statute, and that in the remainder of the States, where the
right is limited to actions of debts, unliquidated damages would
be excluded from the operation of the statute. The courts,
nevertheless, in all the States have adopted a certain rule,
admitting such claims where the rule of liquidation is simple and
definite, insomuch that the plaintiff may safely verify the
amount of recovery.
§ 97. Where an attachment will not lie. It may be laid
down as a general rule, that an attachment will not lie in an
action for the recovery of unliquidated damages if, 1st. The
contract alleged as the cause of action affords no rule for ascer-
taining the damages; or, 2d. The amount is not, and cannot,
with propriety, be averred in the affidavit; or, 3d. Where the
amount is and must be altogether uncertain until the jury have
ascertained it; for which no definite rule can be presented
therein.
§ 98. Contingent Damages. In the case of Clark v. Wilson,
decided in the Circuit Court of the United States for the Third
Circnit of Pennsylvania, an attachment was issued in an action
brought by the owner against the charterer of a ship, to
recover damages for a breach of the charter-party, in refusing to
allow the ship to proceed on a contemplated voyage. The
court held that an attachment would not lie in such a case.
Washington, J., in delivering the opinion of the court, said:
"Whether the plaintiffs can maintain any action upon this
charter-party by reason of the refusal of the defendant to take
on board a cargo and to prosecute a voyage, is a question
which has not been considered by the court; nor is it neces-
sary that it should be decided. For, if an action can be main-
tained upon it, it still remains to be inquired, by what standard
are the damages which the plaintiffs have sustained on account
of the refusal of the defendant to perform the voyage to be
ascertained? That furnished by the contract was a certain
18 Wash. (U. 8. [C. C.]) 560.
1
THE CAUSE OF ACTION.
63
Ex Contractu-Unliquidated Damages.
sum per month during the voyage, to be ascertained at its
termination; but that event never took place, and consequently
no rule can be deduced from this source to fit the present
case."
99. Actions for an Accounting constitute another class of
cases, where an attachment will not lie for unliquidated dam-
ages. But where the action is between parties the objection
is not so much that the claim is unliquidated as that there is
no existing liability. There being no promise, express or
implied, on the part of one partner to pay his copartners until
the balance is ascertained after dissolution, and an express
promise made to pay the amount found due.'
§ 100. The New York rule. In the case of Ackroyd v.
Ackroyd' the question, however, seemed to turn upon the
matter of unliquidated damages, as in that case there was a
special promise on the part of the copartner, who was made
defendant, to settle up the partnership matters, and pay the
plaintiff the other copartner-one-half of the net profits.
In default of payment this action was commenced, and an
attachment issued against the defendant. The affidavit upon
which it was granted was executed some time after the com-
mencement of the action, and stated that more than $25,000
was due the plaintiff from the defendant. A supplemental
affidavit stated the sum due at $22,000. The complaint in the
action set forth that "a large sum was due the plaintiff, but he
could not state the amount.” The court dissolved the attach-
ment for the reason that the plaintiff, in stating the grounds of
his claim, disclosed that he did not know, and could not know
until an accounting had been taken, what, or in fact whether
1 Brown v. Agnew, 6 Watts & S. (Pa.) 238; Case v. Bruch, 2 Caines
(N. Y.) 293; Niven v. Spickerman, 12 Johns. (N. Y.) 401; Murray v.
Bogert, 14 Id. 318; Ives ». Miller, 19 Barb. (N. Y.) 196; Pattison v.
Blanchard, 6 Id. 537.
* 11 Abbott Pr. (N. Y.) 845; S. C., 20 How. Pr. 93.
:
64
THE LAW OF ATTACHMENT.
Ex Contractu—Unliquidated Damages.
anything was due him; and that his opinion or belief was not
sufficient to warrant the granting of the process."
§ 101. Not applicable to a single adventure. It seems, how-
ever, that this principle does not extend to the case of a part-
nership in a single commercial or business adventure, provided
the amount of the claim can be positively sworn to by the
plaintiff. Thus, in the case of Humphreys v. Matthews' the
Supreme Court of Illinois held that an action of account might
be instituted between the co-partners in a commercial advent-
ure. The views of the court are thus presented: "The law
was designed to furnish a creditor with the means of collecting
his debt, in a case where he would be unable to do so in the
ordinary mode of proceeding, and we can see no reason why it
should not be as applicable to account as to any other class of
actions. The claim of a joint tenant in common or coparcener
is just as sacred as that of any other creditor; and because he
cannot resort to the more usual common-law actions to enforce
his rights, affords no reason why he should be deprived of the
benefit of the Attachment Act, when he presents a case that
would authorize an attachment were he permitted to sue in
debt or assumpsit."
§ 102. The contract must furnish the rule of damages-
numerous covenants. There must not only be a fixed rule of
damages, but the contract itself must furnish the rule.' Thus
an attachment was dissolved in the case of Iough o. Kugler,
in the Maryland Supreme Court, where it appeared that the
claim sued upon arose out of the alleged breach of contract
1 See also the same principle in Treadway . Ryan, 8 Kansas, 437;
Rice v. Becrs, Rice's Digest, (S. C.) 75; Wheeler v. Farmer, 38 Cal. 203.
• Brineger v. Griffin, 2 La. An. 154; Johnson v. Short, Id. 277; Levy
v. Levy, 11 La. 581.
•
Humphreys. Matthews, 11 Ill. 471.
• Wilson v. Wilson, 8 Gill. 192; Warwick v. Chase, 23 Md. 155;
Goldsborough v., Orr, 8 Wheat. (U. S.) 227; State v. Steibel, 81 Md. 87;
Hough v. Kugler, 30 Md. 186.
THE CAUSE OF ACTION.
65
Ex Contractu-Unliquidated Damages.
for an exchange of property, which contained numerous and
complicated terms and conditions, and embracing many things
to be done by the parties thereto, for the reason that such &
claim is not of that fixed or definite kind which may be recov-
ered by attachment. "It is," said Chief-Justice Bartol, "in
its nature a claim for unliquidated damages, where the contract
furnishes no measure or standard for their computation, and
the true amount of which cannot be verified by affidavit.
This is apparent from an examination of the terms and condi-
tions of the agreement, which are numerous and complicated,
embracing many things to be performed, and the damages for
the breach of which are wholly unliquidated, and cannot be
stated as a fixed, definite sum of money."
§ 103. Penalties. The agreement in the foregoing case
contained the following clause : "Either party failing to
comply with the conditions of this contract shall pay to the
other as fixed or liquidated damages the sum of $5,000, or
more, if more damages are proved." It was contended by
plaintiff's counsel that damages to the extent of that amount
were liquidated; but the court thought otherwise, “because,
though called liquidated dainages, it is in its nature a penalty."
In New Jersey an attachment will not lie in an action to re-
cover a penalty intended to secure unliquidated damages.'
8 104. In Alabama. Under a special act, applicable to
cases where both of the parties are non-residents, an attach-
ment was granted in an action for the breach of a contract,
arising under the following circumstances: The defendant,
having contracted with the plaintiff to take all the iron con-
tained in three flat boats upon his vessel, bound from New
Orleans to Providence, left a quantity of iron in the boats
which he refused to take, as it would not pack well with the
rest of his freight. One of the boats soon after sank, with its
1 Cheddick v. Marslı, 1 Zabriskie, 463; Hoy v. Brown, 1 Harrison, 157;
State v. Beall, & Harris & McHenry, 847; Dickerson v. Simms, Coxe, 199.
- ' Hazard v. Jordan, 12 Ala. 180. ?
5
66
THE LAW OF ATTACHMENT.
Ex Contractu-Unliquidated Damages.
cargo of iron, and was totally lost. The court held that this
statute, being restricted to the case of a "judgment, note or
otherwise," was only intended to apply to actions of debt, or
indebitatus assumpsit, and not in cases of assumpsit for the
recovery of unliquidated damages. The court expressly dis-
tinguished it from attachments under the general act, which
grants the right upon all "debts or demands."
§ 105. Where an attachment will lie. Breach of warranty.
Under the Alabama statute, quoted above, the court, in
Weaver v. Puryear,' held that an action of attachment would
lie in the case of a breach of warranty in the sale of a slave,
on the ground that the damage, though unliquidated, was
capable of ascertainment, and of which the plaintiff might make
affidavit, the contract itself furnishing the rule of damages.
§ 106. Pennsylvania. For a similar reason, Washington,
J., in Fisher v. Consequa,' under a similar statute, held that an
attachment would lie where the defendant bound himself to
deliver teas of a particuliar quality, suited to a particular mar-
ket, and on failure to do so, to pay the difference between teas
of such quality, and such as should be delivered; and the
required quality of teas not being delivered, the plaintiff com-
menced an action by attachment upon the contract, alleging in
his affidavit, that the difference amounted to $4,500. The
court held that to constitute a debt, within the meaning of the
statute, “the demand must arise out of a contract, without which
no debt can be created; and the measure of damages must be
such as the plaintiff can aver to be due, without which special
bail cannot regularly be demanded."
The same principle is followed in all actions to recover
unliquidated damages of that nature.'
¹ 11 Ala. 941.
2 Wash. C. C. R. 382.
• Peter. Butler, 1 Leigh (Va.) 283; Lenox v. Howland, 8 Caines
(N. Y.) 823; In the Matter of Marty, 8 Barb. (N. Y.) 229; Wilson ❤.
Wilson, 8 Gill (Md.) 192; Woolfolk ». Cage, Walker (Miss.) 800; Hyde
THE CAUSE OF ACTION.
A
$
By
*Ex Contractu-Unliquidated Damages.
§ 107. Negligence.-In Connecticnt, under the statute of
foreign. attachments, which provides that any creditor may
avail himself of the process against his debtor, the following
case arose : The plaintiff commenced an action of assumpsit,
by attachment against the defendants, to recover damages for
their negligence in towing a raft of logs from New York to
New Haven, through Long Island Sound, which they alleged
that the defendant agreed to tow safely, by means of which
negligence the raft was broken up, the logs scattered, and a
large part lost, or recovered at great expense. It was objected on
the trial an attachment would not lie, as the claim was unliqui-
dated, and the amount uncertain, till after proof was resorted
to; and that it was not, therefore, a debt. The Supreme
Court (all the judges concurring) held that the attachment was
valid. The court, per Hinman, J., referring to a previous
decision upholding an attachment upon a claim for unadjusted
damages, arising from a loss on a policy of insurance,' said :
"A debt arising from a breach of contract to transport property
safely, is as definite, surely, as the damages recoverable for
a loss of property insured. The rule for the assessment of
damages is certain in both cases; and the only uncertainty is
as to the amount of damages recoverable; and this arises
from the uncertainty of the proof, which is an uncertainty
attaching to all unliquidated claims.” '
§ 108. In New York the same principle was presented in
the case of Lawton v. Kiel,' where the court held that an
attachment would lie in a claim for damages arising from the
breach of a contract by the defendant to purchase sound corn
for the plaintiffs, the breach complained of being that the corn
♥. Higgins, 15 La. An. 1; Bausman ». Smith, 2 Ind. 874; Jones v. Buz-
zard, 2 Ark. 415; Hunt v. Norris, 4 Martin (La.) 517; Roelofson .
Hatch, 8 Mich. 277; Strock v. Little, 45 Pa. St. 416; Carland v. Cun-
ningham, 1 Wright (Pa.) 228.
¹ Knox . The Protection Ins. Co., 9 Conn. 430.
• New Haven Saw-mill Co. v. Fowler, 28 Conn. 103.
$ 51 Barb. 80.
68
THE LAW OF ATTACHMENT.
Ex Contractu-Unliquidated Damages.
was not sound, but heated, sour and unmerchantable. The
amount of damages claimed being the difference between the
price paid and that for which the corn was sold.
§ 109. In Michigan, under a similar statute, an attachment
was upheld in an action upon the breach of a contract for
freight of certain vessels. "We see no reason," says the
court, "why a demand arising ex contractu, the amount of
which is ascertainable, or the extent of which is susceptible of
ascertainment by some standard referable to the contract itself,
sufficiently certain to enable the plaintiff, by affidavit, to aver
it as near as may be, or the jury to find it, may not be a foun-
dation of a proceeding by attachment.”
§ 110. Nearly all the decisions in this State were rendered
in attachments granted under the former Code, applicable to
money actions only. Under the new Code the right extends
to all actions "for the breach of contract," excepting a con-
tract to marry. The terms seem sweeping enough to cover all
cases of unliquidated damages arising from the breach of a con-
tract. But I do not think the rule is changed. The necessity
for the plaintiffs establishing a prima facie claim to damages of
a fixed or determinate amount still exists. § 636, subdv. I.,
provides that "the affidavit must show that the plaintiff is
entitled to recover a sum stated therein over and above all
counter-claims known to him.” § 641 provides that "the
amount of the plaintiff's demand must be specified in the war-
rant as stated in the affidavit," this for the purpose of fixing
the amount of property to be attached by the sheriff. Hence,
if the damages are of such a character that the plaintiff can-
not verify the exact amount to which he is entitled, no war-
rant can issue, as the requisite affidavit cannot be executed.
For the purposes of this statute the character of the action is
admissible if the damages are so definite in their nature that
the plaintiff would be liable for perjury for misstating the
amount thereof in the original affidavit.
THE CAUSE OF ACTION.
69
Suits in Equity.
CHAPTER V.
1
SUITS IN EQUITY.
§ 111. Attachments not applicable to equity proceedings.
The various provisions of the chapter in relation to attach-
ments show that an action at law to recover money, as its main
object, was contemplated, and not a suit for equitable relief,
although the ultimate recovery of money might follow the
application of such relief. The main object and demand in
equity is relief; in law it is money. The statute limits the
order to actions "for the recovery of a sum of money only."
The judgment is to be satisfied out of property attached, by
selling real and personal property on execution.' The war-
rant requires the sheriff to "attach and safely keep all the
property of the defendant within his county, or so much
thereof as may be sufficient to satisfy the plaintiff's demands,
together with his costs and expenses." It is evident, therefore,
that the framers of this section intended the warrant to be
granted only in an action in which the amount of costs as well
as the recovery of damages should be governed by some fixed
rule, whereby the amount thereof in money may be ascer-
tained upon the issuing of the summons. In actions in the
nature of the former actions at law, the amount of costs is abso-
lutely fixed by statute, and awarded to the successful party as
a matter of right; while in equity proceedings they may be
awarded to either party in the discretion of the court, and are
governed by no fixed rules. The Supreme Court in this State
in the case of Guilhon v. Lindo,' accordingly held that an at-
"" #
$635.
$ 641.
9 Bosw. 601. See also Ebner v. Bradford, 8 Abb. Pr. (U. 8.) 248;
Ackroyd . Ackroyd, 20 How. 93; Wallace v. Hitchcock, 18 Abb. 291.
70
THE LAW OF ATTACHMENT.
Suits in Equity.
tachment would not issue in an action for an injunction against
the infringement of a trade-mark, and for damages arising
from sales made under it, to be determined from an accounting
demanded from the defendant.
$112. Equity relief in a legal action.-But the fact that
some other relief is demanded before a money judgment can
be rendered in an action where the main object is the recovery
of a specified sum, and the relief sought is merely incidental
to that main object, does not render the action any the less an
action for the recovery of money.'
In the case of Hamilton v. Pinney, the New York Supreme
Court, at General Term, held that an attachment would lie in
an action upon a note, and to foreclose personal securities held
as collateral thereto, on the ground that the action was for
money only, although in addition to the ordinary judgment
relief demanded that the collaterals should be sold, and the
proceeds applied thereto. The court said: "It is just and fair
that the defendants have the benefit of the collateral security.
The rule of law in such cases gives the right to have the col-
lateral applied upon the claim without the plaintiff's offer. It
is not material whether the application of the collateral be
made before judgment for the money amount due or after-
ward. If made before, it reduces the judgment; if after, it
pays the judgment, so far as it goes. The acknowledgment
that the plaintiff holds collateral which he wishes to have sold
to apply upon the judgment does not therefore make the claim
other than a claim for money only." It has also been held
that an attachment would lie in an action against the vendee,
to compel the specific performance of a contract to purchase
land, and to enforce the payment by a money judgment of the
amount contracted to be paid.
§ 113. Foreclosure. Under the old Code an attachment
was not permitted in an action for the foreclosure of a mort-
1 Corson v. Ball, 47 Barb. 452; Hamilton v. Penney, 29 Hun, 265.
* 29 Hun 265 (1888).
THE CAUSE OF ACTION.
71
Suits in Equity.
gage, although in terms it was an action for the recovery of
money. The reason assigned by the court in the case of
Van Wyck v. Bauer' for refusing the order was not so much
the equity nature of the action, as that other relief than the
recovery of money was sought, and that attachments were
limited to actions for the recovery of money "only." It will
be noticed that in the new Code the word "only" is omitted.
As an ordinary money judgment enforceable by execution is
permissible in case of a deficiency, there is no reason in prin-
ciple why the levy should not be anticipated by attachment in
a proper case, where it can be shown that the mortgage security
is insufficient and a deficiency inevitable.
§ 114. Same: The rule in Iowa. It has been held in Iowa
under a similar act that an attachment would lie in foreclosure
proceedings under the following circumstances: The plaintiff
alleged that the defendants were indebted to him in the sum of
$1.621; that he held their note for that amonnt, and also a
mortgage by one of the defendants as a security therefor.
Plaintiff further averred that the property mortgaged was not a
sufficient security for more than five hundred dollars of the sum
claimed. The prayer was for a foreclosure, for an attachment
for the amount unsecured, and for judgment, etc. It was
claimed by the counsel for the defense, that the warrant could
not be issued in a foreclosure suit, and the attachment was
dissolved on that account. But on appeal the attachment was
sustained. The Court, per Wright, Ch. J., said: "Whether
the action is brought at law or in equity, pursuing the course
pointed out in the statute, the plaintiff is entitled to this aux-
iliary process.
This is a proceeding for the recovery of
money most clearly, and the Cude gives an attachment in all
such actions. The language is, 'In an action for the recovery
of money.' This language is general, and no good reason is
perceived why it does not apply to one action to recover
money as well as another."*
T
¹ 9 Abb. N. 8. (N. Y.) 142.
* Baldwin . Buchanan, 10 Iowa 277
72
THE LAW OF ATTACHMENT.
*
Suits in Equity.
§ 115. Distinction between equity relief and equity debts.
A distinction must be drawn between equity relief and equity
debts. Under the custom of London, foreign attachments were
restricted to common-law actions, and could not be grounded
upon a debt in equity. Hence an attachment would not lie to
recover a legacy in a spiritual court, or trust property, which
could only be recovered by proceedings in equity.' For the
same reason,
debts due a creditor from the assignees under a
commission of bankruptcy, before judgment in the attachment
vested the property in the assignees and defeated the attach-
ment.' And all debts or demands recoverable only in an equity
court, rested under the same disability. This doctrine may be
followed in some of the strictly common-law States in this
country. But as a general rule, in the American courts, the
question is whether the ultimate object of the suit is the
recovery of money, without regard to the form of the action.
Certainly this is the rule in those States where equity and com-
mon-law rights are enforced in one and the same tribunal,
and under one and the same process. It has been expressly
adjudged in this State, that the word "action," in section 227
of the Code, embraces all actions, whether they are such as were
formerly actions at law, or such as were formerly suits in
equity.' The distinction to be observed, therefore, is a distinc-
tion in the demand, not in the form of the demand. If the
demand is only for money, the attachment will issue; if the
prayer is for relief only, it will not.
§ 116. Contracts payable in goods. It is not necessary
that the contract shall be upon its face payable in money.
It
may be made payable in specific property, provided the cir-
'Locke on Foreign Attachments, 36. See also 1 Rol. Abr. 551;
Wood ». Smith, 5 M. & R. 124; Chamberlain v. Chamberlain, Chancery
Cases (Eng.) 257; Com. Dig. Att. D.
Philips v. Hunter, 2 H. Bl. 403; Hunter v. Potts, 4 T. R. 182.
• Corson v. Ball, 47 Barb. (N. Y.) 452. So held also in Iowa. See
Crouch v. Crouch, 9 Iowa 269. In the State of Tennessee attachments
are issued from both equity and common-law courts. Terril v. Rogers,
8 Haywood (Tenn.) 208.
THE CAUSE OF ACTION.
73
Suits in Equity.
cumstances are such that an action at law would lie for the
recovery of money. The test is, whether money is recoverable,
not whether it is payable by the strict terms of the contract.
An obligation to deliver property gives to the party entitled to
receive it a claim, the nature and amount of which may
be
stated; and if the obligation be not complied with, an action
of money to the extent of the value of the property
to be received may be sustained. In that case the rela-
tion of debtor and creditor exists, and the recovery by the
creditor arises upon a contract, and is within the terms of the
statute. An obligation, therefore, to deliver on and after a
certain day iron metal in payment at a rate agreed upon for
iron ore sold and delivered, constitutes a claim for which an
action may be brought and an attachment issued if there is a
default in the delivery of the iron as agreed upon.'
§ 117. Same. But it has been held in Georgia that such
a contract—to wit, a note payable in solvent notes upon its
maturity—is not a money demand until there is a default, and
an attachment would not issue before it was dishonored, although
the statute authorized the proceeding on a money demand
before it became due."
¹ Ward. Howard, 12 Ohio St., 158.
Monroe. Bishop, 29 Georgia, 159.
74
THE LAW OF ATTACHMENT.
1
Actions on Judgments.
CHAPTER VII.
ACTIONS ON JUDGMENTS.
SECTION 118. Foreign judgments. Under the Revised
Statutes an attachment formerly issued upon "a demand against
the debtor personally, whether liquidated or not, arising upon
contract, or upon a judgment or decree rendered within this
State." The language was the same in the act relating to the
Justice Court.*
Under this statute the Supreme Court, in Besley v. Palmer,'
impliedly held that an attachment would not lie upon a judg-
ment recovered in another State. It appears that the action
was not commenced upon the foreign judgment, but upon the
note, which was the foundation of the judgment. The court
held that the attachment would not lie, as the note was merged
in the judgment, and foreign judgments were not included
within the terms of the statute, which applied to domestic
judgments only. The statute was, on account of this decision,
subsequently amended so as to include all judgments and
decrees.
§ 119. Judgments-Under the old and new Code. The
remedy of attachment was not introduced into the Code until
the year 1849. As it originally stood the limitation read, “In
an action for the recovery of money only." There was no
necessity for specially including judgments, as they were clearly
within the provisions of the act. But the amendment of 1866
restricted the remedy to actions "arising on contract” for the
¹ 2 R. S. 8, § 8.
2 R. S. 230, § 27.
1 Hill (N. Y.) 482.
THE CAUSE OF ACTION.
75
Actions on Judgments.
recovery of money only, and the New Code to actions for "the
breach of a contract." The question is, whether actions on
judgments are included; and this brings us to the question as
to whether judgments are contracts within the meaning of the
statute.
§ 120. Is a judgment a contract under the attachment law?
Blackstone has classed a judgment under the different spe-
cies of contracts, as a contract of the highest nature founded
upon the implication of law, " that by the original contract of
society, each one promises to pay all judgments that may be
rendered against him, and the entry of the judgment is but
the ratification of the contract." This rule is adopted by
nearly all modern text writers,' not so much for the reason of
the rule, as from the source from which it emanated. It is
also assented to by the courts in a general way; though in the
application to particular statutes there seems to be a material
difference of opinion. The question upon the construction of
the attachment law has been fairly presented in two States.
only, Georgia and Iowa. In each State the courts upheld the
doctrine that they were within the statute.
§ 121. In Georgia judgments are held to be contracts of
the highest character in both their legal and ordinary construc-
tion, and that an action upon a dormant judgment is within
the statute of attachments," an action arising on contract."
In Iowa the courts take a more conservative view, and bring
them within the rule, not because they are contracts, strictly
speaking, but because they are ex contractu. In New York
the query came up collaterally in the case of Besley v. Palmer,"
•
¹ See 8 Black Com. 160.
* Parsons on Contracts, 7; Story on Contracts, 1; Chitty on Con-
tracts, 2.
• Lockwood v. Barefield, 7 Ga. 893. See also Bridges v. North, 22 Id.
52.
• Johnson v. Butler, 2 Iowa, 540; Raves v. Webster, 8 Id. 50%.
1 Hill, 482. See also Oakley . Aspinall, 4 N. Y. 518; Donelly .
Corbett, 7 N. Y. 500; 18 N. Y. 468; 18 N. Y. 500.
76
THE LAW OF ATTACHMENT.
Actions on Judgments.
referred to at the commencement of this chapter. The court
there favored the exclusion of judgments unless specially
named in the statute.
§ 122. New York rule.-Justices' judgments. The courts
in this State have, however, in the construction of other stat-
ntes, considered judgments to be within the limitations respect-
ing contracts. Thus in McGuire v. Gallager,' it was held that
a justice's judgment was within the terms of the second sub-
division of section 53 of the Code, which provides that justices
of the peace shall have jurisdiction "in actions arising on con-
tract for the recovery of money only," if the sum claimed does
not exceed two hundred dollars, for the reason that "a judg-
ment is a contract of the highest character. It is a contract in.
law as distinguished from contracts in fact, but we have no
doubt that it constitutes a contract within the provisions of
this Code." So in the case of Humphrey v. Persons' the court
said: "It must be conceded that a judgment rendered by a
justice of the peace, though it is in the nature of a debt of
record, and conclusive between the parties, is nevertheless
regarded as a contract, and is so treated by the courts of this
State."
8123. The same.-In California the courts hold, that "the
debt secured by a judgment differs in no manner from a sim-
ple contract debt, though the evidence of the existence of the
debt is of a higher nature and of a more solemn character than
that by which a simple contract debt is proven. Still, a judg-
ment is a contract in the highest sense, and, as an obligation,
possesses a force superior to that of even a specialty or simple
contract." This was an action commenced in the Justice Court
¹ (Per Sandford, J.) 2 Sandf. 402.
* 23 Barb. 813.
* See Mather . Bush, 16 Johns. 233; Jackson . Fuller, 4 Johns.
215; Mitchell v. Hawley, 4 Denio, 414, 416; and McGuire v. Gallager,
ubi supra.
• Reed . Eldredge, 27 Cal. 848. See also Ames v. Hoy, 12 Cal. 11.
THE CAUSE OF ACTION.
77
Actions on Judgments.
upon a dormant judgment. The defense objected to the juris-
diction of the court on the ground that it was not “ an action
on a contract for the recovery of money," within the meaning
of the Justice's Act. The Supreme Court, on appeal, held
that it was within the terms of the statute.
§ 124. As evidence of a new contract. The same court
afterward held that a judgment rendered against a corporation
while the defendant was a stockholder, upon a contract entered
into before that relation existed, was not a new contract within
the meaning of the act which makes a stockholder liable for
the corporate debts contracted while he was such stockholder.
"The claim of the respondent," said Chief-Justice Sawyer,
"that the judgment is itself a contract creating a new debt,
within the meaning of the statute, is too absurd to require
argument to refute it. That a judgment is a contract of record
in a certain legal sense may be conceded, but it creates no such
new liability as the statute in question contemplates. The
judgment only merges and puts into a new form, against the
will of both corporation and stockholders, an indebtedness
which had already been contracted."
§125. In New York the same principle arose in the old
Supreme Court, in the case of Wyman v. Mitchell,' under the
application of the Insolvent Act to contracts accruing previous
to its passage. The court, per Sutherland, J., said: "It is a
settled law of the land, that a discharge under our Insolvent
Act only affects contracts made between citizens of this State
subsequent to the passage of the act.
Now a
judgment is in no sense a contract or agreement between the
parties; it is only evidence of a pre-existing duty, obligation
or agreement," and the discharge can have no effect “upon a
judgment arising subsequent to the passing of the act, when
the agreement, which was the foundation of the judgment, was
made anterior to the act."
1 Larrabee v. Baldwin, 85 Cal. 156.
1 Cowen, 816.
A
78
THE LAW OF ATTACHMENT.
Actions on Judgments.
§ 126. In Massachusetts, in the case of Morse v. Toppan,
the court held that a judgment by default against a married
woman sued separately was void, for the reason that a judg-
ment, being in the nature of a contract, must be taken against
one capable of contracting.'
$
P
§ 127. The Illinois rule. But in Illinois the courts veer
over to the entire opposite pole, and hold that a judgment is
not in any sense a contract. The question arose in an action
npon a foreign judgment to which an offset was pleaded under
the following provision of their statute: "A defendant in any
action brought upon a contract or agreement, either expressed
or implied, having claims or demands against the plaintiff, may
set up the same and have them allowed him upon the trial."
The court, per Caton, J., said: "We cannot agree with the
connsel that a judgment is a contract within the meaning of
the statute.
The words 'action,' contract, and
'agreement,' are used in their ordinary sense, and not with
the intention of embracing every imaginable litigation upon
every cause of action. A judgment is no more a contract than
is a tort. In one sense it is true that every member of society
impliedly agrees to pay all judgments that may be regularly
rendered against him; and in the same sense does he impli-
edly agree to make amends for all torts he may commit." So
Judge Breeze, in Williams v. Waldo,'said: “A decree or judg-
ment at law is not a contract. Contracts are made between the
willing. Judgments and decrees are rendered against the
unwilling, and they extinguish the contract."
§ 128. In North Carolina, the Court of Chancery, in passing
upon a provision in the statute of limitations in relation to
"all actions of debt grounded upon any writing or contract,
without specialty," held, per Johnson, Ch. J., that "the origi-
nal cause of action was contract, but it is so no longer, as it has
' 8 Gray (Mass.) 411.
• Rae *. Hulbert, 17 IIl. 572.
* 8 Scammon, 268..
THE CAUSE OF ACTION.
79
Actions on Judgments.
merged in the judgment, which is not within the statute."'
This opinion is approved in the U. S. Supreme Court, in the
case of Mills v. Duryea; and also in the latter court in the unre-
ported case of Reed v. Jamieson, decided in the Supreme
Court of Iowa, and afterward in the U. S. Supreme Court,
which held that a judgment is no contract.
§ 129. Want of mutuality. These decisions rest partly
upon the want of mutuality in such cases. That is deemed
the very essence of a contract. Not mutuality of act alone, but
of assent, “actus contra actum," as Lord Coke expresses it."
In bonds there is a mutuality of assent, but not of act. In or-
ordinary agreements there is a mutuality both of assent and
act, while in judgments there is no mutuality either of assent
or act. How can there be a meeting of minds upon the payment
of an amount decreed by the court, when one assents and the
other dissents? Can antagonistic minds be said to meet and
form that unison, without which no legal contract can be
created?
§ 130.
The common law rule.-Blackstone's theory. It
will be noticed from a careful observation of the decisions 811p-
porting the theory that judgments are contracts, that they are
all founded directly or indirectly upon the authority of Black-
stone.
In the second book of Blackstone's Commentaries, the
author treats of judgments as implied contracts of the highest
nature, and in Book 3d, under the title of Actions, he says:
"From these express contracts the transition is easy to those
that are only implied by law, which are such as reason dic-
tates, and which therefore the law presumes that every man
has contracted to perform, and upon this presumption makes
him answerable to such persons as suffer by his non-perform-
Of this nature are, first, such as are necessarily implied
ance.
¹ Napier v. Gidien, 1 Speer's Equity.
• See statement of counsel in Johnson . Butler, 2 Iowa, on page 548.
* 2 Coke, 15. See also 7 M. & G. 998, argum. & note.
80
THE LAW OF ATTACHMENT.
S
Actions on Judgments.
by the fundamental constitution of government to which every
man is a contracting party. And thus it is, that every person
is bound, and has virtually agreed, to pay such particular sums
of money as are charged on him by the sentence, or assessed
by the interpretation of the law. For it is a part of the origi-
nal contract entered into by all mankind who partake the ben-
efits of society, to submit in all points to the municipal consti-
tutions and local ordinances of the State of which the indi-
vidual is a member. Whatever, therefore, the law ordered
any one to pay, that becomes instantly a debt which he hath
beforehand contracted to discharge. And this implied agree-
ment it is, that gives the plaintiff a right to institute a second
action, founded merely on the general contract, in order to
recover such damages or sum of money, as are assessed by the
jury and adjudged by the court to be due from the defendant
to the plaintiff in any former action." But Blackstone dis-
courages this practice, which he says, was instituted "when
real actions were more in use than at present," and that since
their disuse "actions of debt upon judgment in personal suits,
have been discountenanced by the courts, as being generally
vexatious and oppressive by harrassing the defendant with the
cost of two actions instead of one."
But we cannot rely upon Blackstone for the common-law
rule on the subject. At the time his Commentaries were writ-
ten, this question was still at issue. It had been agitated, under
the construction of various statutes, ever since the second year
of Queen Catharine's reign, and was not finally determined and
settled until 1764, more than ten years after Blackstone, then
an Oxford Professor of Civil Law, had published the Law
Tracts that forined the basis of his Commentaries. The issue
took final shape and form under the construction of the Stay
Act, which provided that bail should be given in order to stay
execution, upon any writ of error or supersedeas for reversing
the judgment "in any action or bill of debt upon any single
bond for debt, or upon any obligation with condition for the
1 8 Black, Com. 158.
THE CAUSE OF ACTION.
81
Actions on Judgments.
payment of money only, or upon any action or bill of debt for
rent, or upon any contract." Under this act the question arose,
whether a judgment was a contract within the terms of the
statute. The King's Bench, in the 10th of Queen Anne, in
the case of Goodwin v. Goodwin, held, that it was not within
the statute. And the Common Pleas subsequently-in the
2nd of King George-held, in Lepson v. Anderson, that
bail in action upon judgments was required. The King's
Bench was supported in principle by the case of Gittany v.
Baker,' and the Common Pleas, by Hammond v. Webb,' and
Sir Theophilus Biddolph v. Temple.'
This was the condition of affairs when Blackstone was called
upon to put life and beauty into the charred skeleton of the
common law. He dealt with this "vexata questio," as Lord
Mansfield expressed it, upon general principles, in the absence
of settled rules of law. A few years later the question was
again raised in the King's Bench.. And as "it is a very wrong
thing to have different rules in different courts, upon the same
act of parliament,” Mansfield, before pronouncing the decision
of the court, called a consultation of "all the judges," so as to
pass final judgment upon the case. It arose as follows: Judg
ment was recorded against the defendant, upon a contract.
Subsequently, a second judgment was recovered in an action
founded upon the former judgment. From this second judg-
ment the defendant sued out a writ of error. The question at
issue was, whether he should be required to give bail under the
Stay Act. Lord Mansfield delivered the opinion of the court.
He premised that the opinion of all the judges had been taken,
and that they had agreed that bail was required in the original
action, and then says:
"All the Judges now hold, that bail is not requisite in
bringing a writ of error upon a judgment in an action of debt
founded upon a prior judgment.
1 2 Bulst. 53.
* Lucas, 281.
1 Lev. 260.
• Bidleson v. Whytel, 3 Burr. 154.
82
THE LAW OF ATTACHMENT.
Actions on Judgments.
"For they hold, First: That the original contract was
extinguished by the first judgment. Second: That a judg-
ment is no contract, nor can be considered in the light of a con-
tract, for judicium redditur in invitum.”
"If it should be thought strange that bail should be
required when the action is only upon a contract, and should
not be required when the action is on a judgment, which is of
so much higher a nature; the answer is, 'That, in the former
case, the legislature have required it, in the latter they have
not, unless a judgment could be esteemed a contract, which we
think it cannot.'
"This is, therefore, a casus omissus, and the statute is not
to be extended by construction, because actions of debt on
judgments are oppressive, though there may be some cases
where they may fairly be accounted for."
"So that this point is now settled for the future."
§ 131. Shall we follow Blackstone or precedent? The point
would have been "settled for the future," had not our respect
for Blackstone exceeded our deference to the doctrine of stare
decisis. But we should remember, that while we are indebted
to Blackstone for our systematized embodiment of the common
law, we are indebted to Lord Mansfield (then William Murray)
for Blackstone. He it was who first introduced him to the
Duke of Newcastle, Chancellor of the University of Oxford,
for the vacant professorship of civil law. Should our respect
be greater for Blackstone and his opinions than that of his
illustrious cotemporary and friend? If, therefore, Lord Mans-
field could differ from the great commentator in this respect,
it cannot be deemed ungracious for us to follow in his foot-
steps, and apply to our statute of attachments the language
adopted by the full court of King's Bench upon the stay law
of England, for truly this seems to be "a casus omissus, and
the statute is not to be extended by construction.'
""
¹ In Trinder v. Watson, 8 Burr. 1567 Lord Mansfield in a similar
case said these cases ought to be liberally construed, but in Bidleson v.
Whytel it was determined otherwise, and we must not depart from
settled determinations.
THE CAUSE OF ACTION.
83
Actions on Judgments.
§ 132. A judgment is a debt. Although a judgment is not,
in its common acceptance, a contract, it is undoubtedly a debt,
and is therefore within the terms of the statute in all the States
except where, as in New York, the remedy is limited to actions
on contracts.'
§ 133. An action on judgment is ex contractu. It may be
that the statute, by the term "arising on contract," or for the
breach of contract express or implied, was intended to include
all actions "ex contractu," as contradistinguished from ex
delicto. In that sense, of course, judgments would be included.
This theory would seem to be favored by the nature of an
action upon a judgment. The amount of damages is not only
liquidated, but placed beyond cavil or dispute. Again, all the
original rights of the plaintiff merge in the "debt" created by
the judgment; so that, if it is, in any event, within the statute,
an attachment may issue, whether the original cause of action
sounded in tort or contract. In either case, the second action
would be ex contractu.*
§ 134. I have devoted much space to this question, as it
still remains unsettled; and have endeavored, impartially, to
throw all the light possible upon the subject. Whether in
this State the courts will follow the rule as adopted in Besley
v. Palmer, upou this very question, or that established under a
similar clause contained in another section of the Code,* remains
to be seen. On a strict construction, judgments are not within
the statute, but upon a liberal construction, taking into consid-
eration the object and reason of the remedy, they are within the
statute, and I very much favor the latter view of the case. It
is to be regretted that the revisors of the Code did not expressly
include judgments, and end the controversy in this State.
1 Lewis v. Armstrong, 8 Abb. N. C. 885. Query: If a judgment is
a debt, (of which there is no dispute) and a debt is "a sum of money
due by express agreement," is not an action upon a judgment an action
arising on a contract or express agreement?"
66
• Johnson v. Butler, 2 Iowa, 535.
* 1 Hill, 482.
• See Humphey v. Persons, 23 Barb. 813.
曩
​84
THE LAW OF ATTACHMENT.
Penalties-Penal Bonds.
CHAPTER VII.
PENALTIES.
SECTION 135. Stipulated penalties. Penalties arise either
from the breach of an express contract, or of a statutory require-
ment. They may, therefore, be said to result both from the act
of parties and the act of law. In the former
In the former case, the action is
founded upon the agreement, bond or undertaking containing
the stipulated penalty. It is, therefore, ex contractu, and an
action for damages for the breach of contract¹ within the
meaning of the attachment law, and a warrant may issue
thereon, provided the damages are sufficiently liquidated, and
certain to come within the rules heretofore laid down under
the head of liquidated damages.*
§ 136. Thus, an undertaking on appeal that the obligor
"will pay all the damages and costs which may be awarded
against the defendant, on appeal, not exceeding $300; and if
the judgment appealed from, or any part thereof be affirmed,
the appellant shall pay the amount directed to be paid thereby,
or the part of such amount, as to which the same shall be
affirmed, if affirmed only as part, and all damages and costs
which shall be awarded against the appellant on appeal," is a
contract for the direct payment of money,' within the attach-
ment law of California, and although the damages are not fixed
by the bond, they are capable of computation, and become
1 Lord. Gladdis, 6 Iowa, 57.
• Williams v. Jones, 38 Md. 555; Cheddick v. Marsh, 1 Zabriskie
(N. J.) 463; Dickerson v. Simms, Coxe (N. J.) 199; Brown v. Hoy, 1
Harrison, 157.
Hathaway. Davis, 83 Cal. 161.
THE CAUSE OF ACTION.
85
Penalties-Py Ordinances and Statutes.
liquidated, in fact, before an action accrues against the obligor.
An attachment will, therefore, lie thereon. So in an action
upon a penal bond given in an attachment suit, an attachment
will lie against the bondsmen or obligors therein.'
§ 137. In Maryland the rule is established that any bond
conditioned for the payment of money, although failing to
state the exact amount, if it contains all the elements, or data,
necessary to enable the court and jury to ascertain the amount
due thercon, and to justify the plaintiff in verifying the same
by his oath, is a sufficient evidence of debt to support an attach-
ment. But where, by articles of agreement for the exchange
of property, it was provided that, "either party failing to com-
ply with the conditions of the contract, should pay to the other,
as fixed or liquidated damages, the sum of $5,000, or more, if
more damages should be proved," the court held that the
sum named was in the nature of a penalty for unliquidated
damages, too indefinite to be the subject of an attachment
suit.'
§ 138. Collateral bonds. In a very early case in Maryland
(1793), the court laid down the rule, which has not since been
expressly departed from in that State, that an attachment
would not lie in a suit against the surety in a guardian's bond,
nor upon any bond with collateral conditions, on which sureties
are made responsible only on default of the principal, in the
discharge of official duty, as they are not within the spirit or
the letter of the act of 1764, which provides for attachments
"in every suit where the cause of action is a contract." This
rule is opposed to all the later cases upon that question, and the
McAllister v. Eichengreen, 84 Md. 54.
• Williams v. Jones, 88 Md. 555, (1873).
Hough . Kugler, 36 Md. 186, (1872); as to attachments in a suit
for a penalty arising from the breach of the stipulations, an express
agreement, see § 100, et seq.
* Beall v. Beall, 8 H. & McH. (Md.) 347; this decision was founded
upon Hepburne's Case, 3 Bland, 119; which held that an attachment
cannot issue for a penalty.
86
THE LAW OF ATTACHMENT.
Penalties-By Ordinances and Statutes.
principle on which it was founded, to wit: "that they have no
power to ascertain the breach and assess the damages so as to
grant an attachment," is practically overruled by the case of
Williams v. Jones (38 Md. 55), decided in the Supreme Court
in that State in 1873.
§ 139. Penalties by act of law are created by express statute
or imposed by municipal or private corporations. They bear
nearly the same relation to the attachment system as judg
ments do, both being, in a certain theoretical sense, contracts,
and neither being contracts in the ordinary acceptation of the
term. I see no reason why they should not be within the statute
in every State where the court holds judgments to be within its
terms.'
§ 140. Are statutory penalties contracts? Thus, in Iowa,
when judgments are deemed contracts within the attachment
law, the courts hold that an action to recover the penalty pre-
scribed for the violation of a city ordinance is a “demand
founded on a contract," for which an attachment will be
granted. This decision was founded on Blackstone's reasoning,
that, "by virtue of an implied original contract to submit to the
rules of the community whereof we are members, a forfeiture
imposed by the by-laws and private ordinances of a corporation
upon any that belong to the body, creates a debt in the eyes of
the law, and if unpaid, the remedy is an action of debt. And
that the same reason may apply, with equal justice, to all penal
statutes whereby a forfeiture is inflicted for the transgression
of the provisions therein enacted.” *
In Mississippi, the attachment law expressly covers actions
for a breach of contract, express or implied, "and the actions
founded upon any penal statute," but I do not find a special
provision of this nature in any of the other States.
§ 141. In New York, attachments are allowed in actions to
1 See Chapter 6 on Judgments.
* Town of Decorah v. Dunston Bros., 84 Iowa, 860.
See 8 Black. Com. 159 and 160. Sce 50 N. Y. 128.
'THE CAUSE OF ACTION.
87
Penalties By Ordinances and Statutes.
recover damages for the breach of a contract, express or implied
This apparently covers all actions of assumpsit. The Revised
Statutes provide that "when a pecuniary penalty or forfeiture
is specially granted, by law, to any person injured or aggrieved
by any act or omission of another, the same may be sued for or
recovered in an action of debt or assumpsit."
88
THE LAW OF ATTACHMENT.
Foreign Corporations.
CHAPTER VIII.
FOREIGN CORPORATIONS.
SECTION 142. Ir the plaintiff has an existing right of action,
and the cause of action is within the terms of the statute, he is
entitled to an attachment, provided he can show by affidavit
that there is an existing ground of attachment. The first
ground of attachment under the Code is that the defendant is
a foreign corporation.
§ 143. Under the common law, the original process against
a corporation was the writ of distringas, whereby its property
was attached or distrained, to compel an appearance. Dis-
tringas was, in fact, the domestic attachment of the common
law, as distinguished from foreign attachment or garnishment,
under the customs of London. In this country, however, cor-
porations, in respect to suits, have been treated as individuals.
In most States they are not specifically named in designating
the grounds of attachment, but pass under the general terms of
"debtor," ""defendant," or "person." In this State, corpora-
tions are mentioned in the statute, but they are, nevertheless,
treated the same as natural persons. Thus, the first ground of
attachment, that the defendant is a foreign corporation, would
probably, without express words to that effect, be covered by
the second," that he is not a resident of the State."
' The New York Supreme Court in an early case (McQueen v. Mid-
dletown Manufacturing Co., 16 Johns. 5) held that foreign corporations
could not be classed as "non-residents" within the meaning of that
term as used in attachments acts. This principle has been recognized
THE GROUNDS OF ATTACIIMENT.
89
Foreign Corporations.
§ 144. In respect to locality, a corporation is either
domestic or foreign. It is a domestic corporation or resident
in the State that created it, and a foreign corporation or non-
resident in every other State. Unlike natural persons, cor-
porations have no domicil of choice. The domicil of origin is,
therefore, always retained."
§ 145. Quasi domicil But a corporation may gain a quasi
domicil by adoption. Thus, where the legislature authorizes a
foreign corporation to exercise certain powers within the limits
of the State granting such authority, and declares that it shall
be there entitled to all the privileges, rights and immunities
conferred upon it by the laws of its creation, it cannot after-
ward be treated as a non-resident in such State.'
And a corporation may, by receiving charters from two or
more States, gain a domicil in each.*
§ 146. Are National Banks foreign corporations? They
in a few other decisions. See Lafayette Ins. Co. v. French, 18 How.
(U. 8.) 404; Peckham v. North Parish, &c. 16 Pick. 286; Clarke v. New-
Jersey Steam Nav. Co., 1 Story, 581. But the weight of authority in
this country supports the contrary doctrine as stated in the text. See
Andrews . Mich. Cent. R. R. Co., 99 Mass. 534; Bushel . Com. Ins.
Co., 15 S. & R. (Pa.) 173; Martin o. Branch Bank, 14 La. 415; Union
Bank o. U. S. Bank, 4 Humph. (Tenn.) 869; Libbey v. Hodgdon, 9 N.
H. 394; St. Louis Perpetual Ins. Co. v. Cohen, 9 Mo. 421; Wilson .
Danforth, 47 Ga. 676; Mineral Point R. R. Co. v. Keep, 22 IIL 9;
First National Bank o. Colby, 46 Ala. 435.
¹ Merrick ⚫. Van Santvoord, 84 N. Y. 2083; Stevens v. Phoenix Ins.
Co., 41 Id. 149; Louisville, &c. R. R. Co. v. Letson, 2 How. (U. 8.)
497; Harley v. Steam Packet Co., 2 Miles (Pa.) 249; Covington Bridge
Co. v. Shepherd, 20 How. (U. S.) 227, 232.
• Merrick ⚫. Van Santvoord, 84 N. Y. 208.
• Martin v. Mobile & Ohio R. 8. Co., 7 Bush (Ky.) 116; Phillips-
burgh Bank. Lackawanna R. R. Co., 8 Dutch. (N. J.) 206; Drake on
Attachments, § 81; but compare Whitehead. Buffalo & Lake Huron R.
R. Co., 18 How. (N. Y.) 218.
• Sprague v. Hartford, &c. R. R. Co., 5 R. I. 233; Drake on Attach-
ments, § 81.
·
90
THE LAW OF ATTACHMENT.
Foreign Corporations.
were held in this State' to be within the meaning of the old
Code definition of foreign corporations, to wit: "Corporations
created by or under the law of any other State, government or
country." It is plain that the term "other government,” signi-
fied any government except that of the State in which the term
may be employed. But if foreign corporations were considered
as including only those incorporated by any other "State or
country," then national banks would not come within the
rule, as the term "other country" means a foreign country,
and it has so been held under the New York statutes.' National
banks are, in fact, neither domestic nor foreign corporations,
they are sui generis, not domestic, because they receive no
charter from the State; not foreign, within the common
import of the term, for they are formed under the laws of the
federal government, which is not foreign to any of the States.
National laws constitute a part of the government of the people
of each State, so far as they are constitutionally enacted, as
completely as the laws do which are constitutionally enacted
by its own legislature, and, within their appropriate sphere,
are paramount to the laws enacted by the authority of the State
itself, and in no sense can be considered as foreign laws.
Neither can the institutions or corporations provided for by
them be considered foreign in their character; for they are
created by an integral portion of the government of the people
existing in each State, though forming no part of its State
government. They are brought into existence by the national
authority, existing and exercising its functions in every State.'
¹ Bowen v. The First National Bank of Medina, 84 How. 408; Crooke
⚫. State National Bank of Boston, 50 Barb. (N. Y.) 839; 8. C. 8 Abb.
N. S. 839. This ruling seems to be adopted under the New Code. See
Throop's Notes, p. 127.
Bowen . The First National Bank of Medina, 84 How. 408, 414.
Subd. 16 of § 2 of the Temporary Act under the Remedial Code specifies
that a “domestic corporation" is a corporation created by or under the
laws of the State. A "foreign corporation" is a corporation created
by or under other laws. This makes a national bank a "foreign cor-
poration."
• Drake on Attachments, § 80; Harley v. Charleston Steam Packet
Co.. 2 Miles, 249.
THE GROUNDS OF ATTACHMENT.
91
Foreign Corporations.
An institution thus begotten, cannot, in any sense, be deemed
foreign within the limits of the federal authority.
§ 147. Under the new Code, National Banks located in
another State are foreign corporations, and, if solvent, may be
attached. Subdv. 18 of § 3343 specifics that "a domestic cor-
poration is a corporation created by or under the laws of this
State, or located in this State and created by or under the laws of
the United States.
Every other corporation is a for-
eign corporation." This definition fixes the status of national
banks, so far as New York is concerned. They are domestic
if located here, and foreign if located elsewhere.' This dis-
tinction is not entirely novel. Corporations have always
received a special recognition from the State in which they are
located, although it has been claimed that they would be gov.
erned by the general rule that the foreign character was not to
be determined by the location of its corporators or its principal
place of business."
In the case of Robinson v. National Bank of Newberne
(14 Hun. 477, S. C. on App., 81 N. Y. 385), it was sought to
vacate an attachment against the property of a national bank
located in another State, on the ground: 1st, of want of juris-
diction, under § 5242 U. S. R. S.; and 2d, if it had juris-
diction, it was powerless to grant the attachment. The Gen-
eral Term held that the clause cited, providing that "no attach-
ment, injunction or execution shall be issued against such asso-
ciation, or its property, before final judgment in any suit,
action or proceeding in any State, county or municipal court,"
only applies to such national banks as are described in the pre-
ceding part of the section, that is to say, such as have commit-
ted or are contemplating an act of insolvency, and does not
prohibit the issuing of an attachment against the property
of a solvent national bank located and doing business in
another State, the court citing and criticising the Central
¹ Market Nat'l Bank v. Pacific Nat'l Bank, 2 Civ. Pro. Rep. 830.
• Per Daniels, J., in Bowen . The First National Bank of Medina,
84 How. 408.
92
THE LAW OF ATTACHMENT.
Foreign Corporations.
National Bank v. The Richland National Bank of Mansfield
(52 How. 136), and Rhoner v. The First National Bank of
Allentown (14 Hun, 126), which uphold an attachment in such
a case. This view was sustained by the Appellate Court, on
the ground that the clause,“ such corporations," was placed in a
chapter entitled, "Dissolution and Receivership," and evidently
referred only to attachments against banks that were in an
insolvent condition. As to the first point, the entire want of
jurisdiction was urged by counsel, on the ground that all actions
and proceedings must be brought against national banks in the
States where they are located; but the Court of Appeals, on
the authority of Cooke v. State National Bank of Boston (52
N. Y. 96), held the affirmative grant of power contained in §
5198 U. S. R. S., that suit may be brought "in any State,
county or municipal court in the county or city in which such
association is located," was not a modification of the general
provision of § 5136, which declares that "it may sue and be
sued in any court of law and equity as fully as a natural person."
§ 148. Insolvent National Banks not liable to attachment.
Where it is clearly made to appear that a national bank is
insolvent, or about to become so, at the time of the issuing of the
warrant of attachment, § 5242 will apply, and the warrant will
be vacated.' The reason alleged for this rule is that, as a cor-
poration can act only in the mode and within the limitations
prescribed by the law creating it, the same law may impose
upon parties dealing with the corporation such restrictions as
the enacting power deems proper in preserving, applying, or
subjecting its assets to the discharge of its obligations,
and may, among other things, provide that any one or more of
the usual remedies of creditors against a debtor, shall, in certain
cases, be withheld. This principle is broad enough in its terms
to apply to all foreign corporations, but it is extremely doubtful
¹ Nat'l Shoe & Leather Bank of New York v. Mech. Nat'l Bank, N.
J., 89 N. Y. 467. See to the same effect, Nat'l Bank v. Colby, 21 Wall.
(U. S.) 609; Central Bank v. Richland Bank, 52 How. 186 (overruling
Southwick v. Bank of Memphis, 7 Hun. 96).
THE GROUND OF ATTACHMENT.
93
Foreign Corporations.
whether the local laws of its native State could clothe a cor-
poration with such privileges as to prevent its creditors in
another State in which it transacts business from securing, by
the lex fori, the usual remedies applicable to other foreign
corporations. The sovereign authority of an act of congress is
a sufficient justification for the refusal of an attachment in the
case of national banks. The circumstances under which
attachments will lie against insolvent corporations generally, is
treated more fully in Chapter XIV., relating to actions against
corporations. Where it is contended that at the time of the
issuing and levy of an attachment against a national bank,
such bank was insolvent, the burden of showing that fact is on
the defendant, and the attachment will not be maintained
without such fact is clearly established.'
$149. Conversion of State into National Banks A dis-
tinction may be drawn between national banks formed
under the act of Congress, and those formed by the conversion
of State banks or private banking asssociations, primarily organ-
ized under State laws. Section 44 of the National Banking
Act,' provides that any bank incorporated by the special law of
any state may become a national bank; and the required certifi-
cate may be made by the directors, and they must certify that
two-thirds of the stockholders have voted to change and con-
vert the bank into a national bank. This conversion is simply
a change, and does not work an annihilation or dissolution of
the old bank. Neither does it form a new corporation. It ia
a reorganization, simply, under the old charter, which is still
retained, except where taken away by express statute.*
Corporations of this two-fold character come within the
rule relating to corporations generally. They must be con-
sidered domestic corporations in the State in which their origi-
¹ Market Nat'l Bank v. Pacific Nat'l Bank, 2 Civ. Pro. Rep. 830.
• U. S. Statutes at Large, 1864, pp. 112, 113.
* Maynard •. Mech. Nat. Bank, 1 Brewster (Pa.) 483.
See State v. Phoenix Bank, 84 Conu. 205; Same v. Hartford Bank,
Id. 240.
9.1
THE LAW OF ATTACHMENT.
Foreign Corporations.
nal charter was received, if that is retained, and foreign cor-
porations in every other State.
§ 150. General rules relating to actions against foreign cor-
porations. The statutory authority to proceed by attachment
or otherwise, against foreign corporations, is subject to two
separate limitations, one referring to the forum, and the
other to the parties plaintiff. While the Supreme Court has
general jurisdiction in such cases, the superior city courts
and the courts of an inferior or local jurisdiction have always
been subjected to certain express restrictions. So, to protect the
courts of this State from being subject to the unrestricted
demands of foreign litigants, non-resident suitors are only
permitted to maintain actions against foreign corporations in
certain specified cases. The provisions of the new Code have
entirely abrogated the former procedure in such cases; but
as the former provisions are still retained in many of the Code
States, I will give the substance of the laws in each case, and
the decisions applicable thereto.
§ 151. The remedy under the old Code was contained in
§ 227 as limited by § 427. Section 227 provided that an
attachment might issue in an action arising on contract, &c.,
"against a corporation created by or under the laws of any
other State, government or territory." Section 427 provided
that such action might be brought in the Supreme Court, the
Superior Court of the City of New York, or the Court of
Common Pleas for the city and county of New York; this
section further provides that the action may be maintained by
a non-resident "when the cause of action shall have arisen, or
the subject of the action shall be situated within this state."
8 152. Section 427-non-resident plaintiff. It will be
noticed that in § 427 the language of the Code is permis-
sive and not restrictive. It would not, therefore, exclude the
right in other cases, except from the fact, that under the
common law no jurisdiction could be gained over a foreign
THE GROUND OF ATTACHMENT.
95
Foreign Corporations.
corporation unless it voluntarily appeared in the action.' This
provision was evidently made to cure that defect.
/
It is plain, therefore, that in all the States where a like
provision prevails, a foreign corporation cannot maintain any
action against another foreign corporation, unless the cause of
action shall have arisen, or the subject of the action shall
be situated, within this State.'
§ 153. Meaning of the term "cause of action arose" within
the state. There has been some difficulty in ascertaining what is
meant by the phrase "cause of action arose,” as used in both the
former and present Code. It was held at Special Term, that
the term " cause of action" is synonymous with chose in
action; that it refers to the contract itself, and not the breach
of a contract, and that consequently, the cause of action arises
where the contract or note is made, and not where it is pay-
able. Thus, a note made in Iowa, payable at a bank in the
City of New York, is not a cause of action, arising in this
State.' This case substantially holds, that the duty, not the
breach of duty, is the cause of action.
$154. The breach of duty is the cause of action. On the
contrary, Justice Hand, at the Special Term of the same
court, held, that whatever be the form of action, the breach of
duty, and not the duty itself, is the cause of action, and that a
bill drawn and accepted in Boston, but made payable at a bank
in New York, is a cause of action, arising in this State."
1 But general appearance will confer jurisdiction. Root. Great
West. R. R. Co., 55 N. Y. 636.
• McBride v. Farmer's Bank, 26 N. Y. 450, 456; Western Bank v.
City Bank of Columbus, 7 How. 238; Cantwell . Dubuque Western R.
R. Co., 17 Id. 16; Pres., &c., of Bank of Commerce v. Rutland & Wash-
ington R. R. Co., 10 Id. 1; Bates ». New Orlcans, &c., R. R. Co., 13 Id.
516; Campbell v. Proprietors of the Champlain & St. Lawrence R. R.,
18 Id. 412; Western Bank v. City Bank of Columbus, 7 Id. 238; White-
head v. Buffalo & Lake Huron R. R. Co., 18 Id. 218.
* Cantwell v. Dubuque Western R. R. Co., 17 How. 16.
• Bank of Commerce . Rutland & Washington R. R. Co., 10 How.
A
96
THE LAW OF ATTACHMENT.
Foreign Corporations.
Although this decision was rendered prior to that of Cantwell
v. Dubuque, etc., last above cited, itwas affirmed at the General
Term, and has since been quoted as authority upon this point.
This latter principle has certainly the best foundation for its
support. "An action is an ordinary proceeding in a court of
justice,” (§ 2, Code of Procedure) a cause of action then, must
be the right to commence a proceeding in court.
"The cause
of action' shall be deemed to have accrued from the time of
the last item in the account on either side," when parties have
reciprocal claims on each other, forming an open account
(§ 95). Why? Because, at that moment "the cause of action
arose;" that is, the right to sue then accrued on the entire
account, and not before. Now let us carry this principle into
practice. A. contracts to perform certain work for B. B.
holds the contract against A., but he has no cause of action
1 (aff. 10 Id. 1; note). In this case the court said, "the counsel for
defendant contends that the contract of loan, or the bill of exchange is
the cause of action. An action in the ordinary use is simply a legal
demand of one's right.' (See Co. Litt. 283 a; 1 Bac. 46; 1 Toml. Dic.
28.) The Code (§ 2) has given it a little broader sense perhaps, as suits
in equity are now included. 'Cause of action,' I do not think, is, now
at least, synonymous with chose in action,' for the latter phrase as now
used, includes debts, &c., not due, and indeed stocks (Ld. Thurlow, 1
Ves. Jr. 198; and see Gillet v. Fairchild, 4 Denio, 80), though some
of the definitions given to it, as well as its etymology, rather import a
present right of action. (4 Petersd. 254 r; 1 Chitty Genl. Pr. 99; 1 Lill.
Pr. 378)."
·
"It has been remarked that 'Whatever be the form of action, the
breach of duty is substantially the cause of action' (Bayley, J. in Hor-
nell . Young, 5 B. & C. 259; and see Burckle . Eckhart, supra, S. C.
8 Den. 279; 2 Saunders R., 63, d, n, m; Batley v. Faulkner, 8 B. & Ald.
288, 448; Collinge o. Heywood, 9 A. & E. 633; 1 Cr. & M. 467; 1 Mod.
269). The defendant relies upon the case of Western Bank .
Bank of Columbus (7 How. Pr. 288). As to the right of the corporation
to sue, the attention of the court does not seem to have been called to
the amendment of the Revised Statutes by the Act of 1849. And as to
the cause of action, that was a loan made in another State by one for-
eign corporation to another; to secure the payment of which, a bill of
exchango had been given, drawn by other persons upon a resident of
New York. But the suit was upon the loan. If the right to bring this
1
THE GROUNDS OF ATTACHMENT.
97
Foreign Corporations.
until a breach arises thereon, because he has no right till then
to sue upon it; but if A. fails to perform the contract accord-
ing to its terms, or if B. fails in the payment, there is a breach
of contract, and an immediate right to sue or cause of action
arises.' The contract is the foundation or basis of action; the
default is the immediate cause of action. Both the duty and
the default must unite to constitute the cause of action, bat
the default alone produces the cause. This question is capable
of an easy solution by other means. Every cause of action
must arise at a certain time and place, and the time and place,
being co-existent, govern each other. Now, apply this axiom
to the case of a note inade at Chicago and payable at a bank in
New York city. When does the cause of action arise on the
note? At the time of the default. Where does it arise? At
the place of the default, to wit, New York city, for the time
and place govern each other.
§ 155. The cause of action arises where the breach of duty
occurs. I think it is safe, therefore, to adopt the rule that a
cause of action arises at the place where the breach of duty
occurs. In the case of bills, notes or other contracts for the
payment of money only, the breach of duty arises from the
non-payment at the place where they are made payable. It
follows that, in respect to such contracts, the cause of action
arises when they are payable, and this follows the general rule,
suit depends upon the cause of action arising in this State, the plaintiffs
could not sue the defendant here for a loan of $25,000 made in Boston.
But the suit is upon a bill of exchange."
The same principle in the case of torts is held in Cumberland Coal
Co. v. Sherman, 8 Abb. 243 (aff. 30 Barb. 159).
* 1 "A cause of action does not exist until the claimant has the légal
right to sue. In a contract for labor, &c., no action lies until breach or
performance." (Per Justice James, in Campbell v. Proprietor of the
Champlain and St. Lawrence R. R., 18 How. 818.) See also to the same
effect Bouvier's Law Dictionary, tit. "Cause of Action," and cases cited.
So under the statute of limitations, it is a well-settled rule of law
that the cause of action arises when the plaintiff has a legal right to sue,
that is, when a claim is due and payable.
7
·
98
.' THE LAW OF ATTACHMENT.
Foreign Corporations.
now quite well settled, that where a contract is made at one
place, and to be performed at another, the contract, as to its
validity, nature, obligation and interpretation, is to be governed
by the law of the place of its performance.' But if the perform-
ance of a contract is partly in another State and partly in New
York, the cause of action cannot be said to have arisen in this
State, if the contract was made and payable in another State.'
The New York Supreme Court, in a late case, held that
where a contract was made in Canada, to be by its terms per-
formed therc, or here, and was, in fact, chiefly performed here,
and the notice of discharge, alleged to be a breach, was given
here, the cause of action may be said to have arisen here.
This shows the distinction between the cause of action and the
contract itself, for that certainly was a Canadian contract. In
an earlier reported case, the same court held that where a for-
eign corporation made in another State its bonds and coupons,
4
' President, &c. of Bank of Commerce v. Rutland & Washington R.
R. Co., 10 How. 1-8; Fanning v. Consequn, 17 John. R. 511; Andrews
v. Pond, 18 Pct. (U. S.) 851; and for the same principles in regard to
bills and notes, sec Lee v. Selleck, 83 N. Y. 615; which holds that the
liability of the maker of a note executed in New York, but payable in
Illinois, is governed by the law of Illinois, and see also Cooper v. Wald-
egrave, 2 Beav. 282; Story on Bills, §§ 129, 131, 145.
* Campbell v. Proprietors of the Champlain & St. Lawrence R. R.,
18 How. 418. The residence of the parties to the instrument seems to
have some bearing on the situs of the contract itself. Thus it appears
that a loan made by one non-resident to another out of the State, but
secured by a draft drawn on a person within the State, the cause of
action does not arise here (Western Bank v. City Bank of Columbus, 7
How. 238); and a note made, indorsed, and discounted here by resi-
dents of this State, made payable in another State, is a New York
contract. Artisans' Bank v. Park Bank, 41 Barb. 599; and to the same
effect see Jewell v. Wright, 80 N. Y. 259. But while in the latter case
it is a New York contract in the sense that its validity is tested by the
New York law, yet the action on that contract still may arise at the place
where the money is to be paid thereon, as it is the refusal to make such:
payment which creates the cause of action.
Johnson v. Adams Tobacco Co., 14 Hun, 89.
• Conn. Mut. Life Ins. Co. v. Cleveland R. R. Co., 41 Barb. 9. See
•
also, Hiller . B. & M. R. R. Co., 70 N. Y. 223.
THE GROUNDS OF ATTACHMENT.
99
Foreign Corporations.
secured by property in its own State, but payable in the city
of New York, that the cause of action arises here, the LIBRARY
the parties thereto are foreign corporations.
GALLO
UNIVERSITY OF
OF
MICHIGAN

§ 156. Where no place of payment is specified in a contract
the cause of action may be said to arise where the contract is
made, for the debt is payable there as well as everywhere else.
So also in the case of a bill or note, where no place of payment,
is specified, and the indorsement or acceptance is general, the
place of payment shall be taken to be the place where the bill,
or note was made.' So a note made in one country and indorsed,
in another, is considered, even as against the indorser, a con-
tract of the country where it was made.'
$157. Accommodation paper. But the rule is different
where the acceptance or indorsement is for the accommodation
of the drawer or maker, for in that case the instrument has no
legal force or validity until it passes into the hands of a third
party for value. The negotiation perfects the contract, and
creates the indebtedness; therefore, under the preceding rule,
in the absence of an express place of payment, the cause of
action arises where the contract is perfected by the negotiation
of the note. Thus, where a note is made in Wisconsin and
indorsed in Illinois for the accommodation of the maker, but,
not intended to be used, except in New York, for the payment
of goods to be purchased there, and it 'is so used, the liability
of the indorser is determined by the laws of New York,' and
the cause of action may be said to have arisen there. Where
the cause of action is on a tort or wrong, the same principle
applies; as in the case of contracts, the cause of action arises
where the wrong is committed or the breach of duty occurs.
' Story on Conflict of Laws, § 817; Peck v. Hubbard, 20 Vt. 698;
Don v. Lippmann, 5 Clark & Finn. 1, 12, 18.
* Per Ld. Brougham, in Don v. Lippmann; Story on Conflict of
Laws, § 817.
* Id. § 317.
• Lee v. Selleck, 83 N. Y. 615.
• Bouvier's Law Dictionary, tit. "Cause of Action." President, etc.,
100
THE LAW OF ATTACHMENT.
Foreign Corporations.
§ 158. Meaning of the term, “subject of action is situated
within the State." We come now to consider the meaning of
the term, 66
or the subject of the action is situated within
the State," as used in § 427 of the old Code. This term was
first. used in § 123, which provided that "actions for the
following causes must be tried in the county in which the sub-
ject of the action or some part thereof is situated." Then fol-
lows the description of actions where the subject of the action
may be said to be situated in the county where triable, to wit:
actions affecting the title, possession, or injuries to real prop-
erty; 2d, for the partition of real property; 3d, for the fore-
closure of mortgages, and 4th, for the recovery of personal
property. The next section (124) pointed out certain cases
where actions may be tried in the county "where the cause of
action arose." The Code thus drew the line of distinction
between the two clauses, and showed conclusively that they are
not synonymous, but refer to distinct and separate classes of
actions-the one affecting specific property capable of having a
situs; the other, the prosecution of ordinary claims upon
torts or cases in action.
§ 159. Actions affecting property situated in this State.
Again, by §§ 134 and 135 of the old Code, a service by publication
of summons could only be made against a foreign corporation
when it “has property within the State, or the cause of action
arose therein." Here the terms are "property" and "cause of
action." In § 427 it is "the subject of the action," and "cause
of action," both containing the same limitation "within the
State." Is it not reasonable to suppose that in the latter sec-
tion the legislature intended to include, by the first limitation,
ordinary actions upon contracts or torts, and by the second, all
cases where the subject of the action is specific property, capa-
ble, in the ordinary sense of the term, of being situated within
the State? The attempt to force the construction of a distinc-
tion between actions in general into an application in the specific
of Bank of Commerce ». The Rutland & Washington R. R. Co., 10 How.
1; Cumberland Coal Co. v. Sherman, 8 Abb. 243 (aff. 38 Barb. 159).
THE GROUND OF ATTACHMENT.
101
Foreign Corporations.
cases where an attachment is allowed, may appear strange, but
the courts have so considered it.
§ 160. The Supreme Court rule: "cause of action," and
"subject of action" synonymous terms. "The subject of the
action," says Greene, P. J., "is the claims therein asserted by
him, and the satisfaction of which he seeks out of the property
attached, which he concedes to belong to the defendant."" In
other words, "the subject of action is situated" means the same
"the cause of action arose," and the legislature added a sec-
ond clause without meaning anything by it.
The legitimate application of this principle will lead us to
the conclusion that an attachment will not lie for damages in the
breach of a contract for the sale of lands situated in this State,
where the agreement was made in Ohio and to be performed
there; for the direct cause of action, or "the claim therein
asserted," is the breach of a contract made and broken in
another State, although the "subject of the action" is real estate
“situated in this State." The facts in the case of Whitehead
v. Buffalo & Lake Huron R. R. Co., are not such as to war-
rant a discrimination between the two clauses, any further than
to show that neither of them applied to a contract for work
and materials, when such contract was executed and broken in
Canada. The court only seemed to consider the phrase "the
subject of action," and not its consequent "is situated." Sup-
posing "the claim therein inserted," is an ordinary debt, can a
debt be situated within this State? A debt has no situs, but
accompanies the creditor everywhere. The true rule, in my
opinion, is found by carrying out the principle of the court to
its legitimate end. Thus, the subject of the action is the claim
asserted in the plaintiff's complaint, and where that claim.
¹ Whitehead. The Buffalo & Lake Huron R. R. Co., 18 How. 218-
238. See also President, &c., of Bank of Commerce v. Rutland & Wash-
ington R. R. Co., 10 How. 1; and Campbell v. The Champlain & St.
Lawrence R. R., 18 How. 412.
• Story on Conflict of Laws, § 318; Blanchard v. Russell, 13 Mass. 1,
6; Slacum v. Pomeroy, 6 Cranch U. S. 221.
A
102
THE LAW OF ATTACHMENT.
Foreign Corporations.
grows out of, or affects, specific property situated in this State,
an attachment will be allowed in an action by a non-resident
plaintiff against a foreign corporation.'
§ 161. Same. There is a distinction in the very nature of
the terms "subject" and "cause." In an action of replevin the
subject of the action is the property detained; the cause of action
is the unlawful detention. So, in an action on a promissory
note, the subject of the action is the note which is "the claim
asserted by him;" the cause of action is the non-payment of
the note. Following out this simple distinction, the question
is always easily solved, for, wherever the subject of the action
taken in this sense is capable of acquiring a situs and that
situs is within the State, an attachment may issue, in a proper
case, otherwise it will not. I have given this subject a full
discussion for the reason that the same term is still used in
many of the States. In New York the new Code has carried
out, by express legislation, the theory of the old rule as claimed
herein.
§ 162. Attachment against foreign corporations under the
Revised Statutes. Prior to the adoption of the new Code, the
right of attachment against foreign corporations was also con-
ferred by the Revised Statutes. The jurisdiction was origi
ually limited to actions for the recovery of any debt or dam-
ages commenced by a resident plaintiff in the Supreme Court."
By the amendment of March 15, 1849, the remedy was
¹ In Campbell v. Proprietors of the Champlain & St. Lawrence R. R.,
18 How. 412, Justice James says (page 410): "The motion papers show
that the demand for which this action is brought arose upon a contract
for the payment of money. Therefore, this is not a case where the subject
of the action is situated within the State." In Ready v. Stewart, 1 Code
R. N. S. 298, the court held that the term "subject of the action"
relates to the nature or the thing sought to be obtained by the judgment
to be given. The property attached is not the "subject of the action."
Whitehead v. The Buffalo & Lake Huron R. R. Co., 18 How. 218, 233.
*
•
2 R. 8. 459 (479), § 15.
• Laws of 1849, p. 142. ..
THE GROUNDS OF ATTACHMENT.
103
Foreign Corporations.
extended so as to include all suits in the Supreme Court of
Court of Common Pleas in the city of New York, against a
foreign corporation, for the recovery of any debt or damage,
whether liquidated or not, arising on a contract made, executed
or delivered within this State, or upon any cause of action
arising therein, and that such suit might be commenced by
complaint and summons, together with an attachment, as there
provided by law, and that such complaint and summons be
served as provided by the Code of Procedure. This act was
independent of the Code, and was in force until both systems
were abrogated by the new Code.'
§ 163. The provisions of the new Code. Under the new
Code the Superior City Courts have jurisdiction over foreign
corporations in the following cases only: 1st, to recover dam-
ages for the breach of a contract, express or implied, or a
sum payable by the terms of a contract, express or implied,
where the contract was made, executed or delivered within the
State, or where the cause of action arose within the State; or
2d, where a warrant of attachment, granted in the action,
has been actually levied within that city, upon property of the
corporation; or 3d, where the summons is served by delivery
of a copy thereof, within that city, to an officer of the cor-
poration, as prescribed by law. The Marine Court can acquire
jurisdiction over a foreign corporation, provided the claim
does not exceed two thousand dollars," and the defendant is
served in New York city. But no power seems to be granted
to County Courts in respect to foreign corporations.
The jurisdiction as to non-resident suitors is limited as
follows, by section 1780: “An action against a foreign cor-
poration may be maintained by a resident of the State, or by a
See Whitehead v. Buffalo and Lake Huron R. R. Co., 18 How. 218
230; Jones v. Norwich and New York Transportation Co., 50 Barb. 193;
President, &c. of Bank of Commerce v. Rutland and Washington R. R.
Co., 10 IIow. 1, 5; Campbell . Proprietors of the Champlain and St.
Lawrence R. R., 18 Id. 412, 416.
• § 263, subd. 7.
§ 815.
104
THE LAW OF ATTACHMENT.
Foreign Corporations.
domestic corporation, for any cause of action. An action
against a foreign corporation may be maintained by another
foreign corporation, or by a non-resident in one of the follow-
ing cases only:
"1. Where the action is brought to recover damages for a
breach of a contract made within the State, or relating to prop-
erty situated within the State, at the time of the making
thereof.
"2. Where it is brought to recover real property situated
within the State, or a chattel which is replevied within the
State.
"3. Where the canse of action arose within the State, ex-
cept where the object of the action is to affect the title to real
property situated without the State."
It will be noticed that the term "cause of action arose,'
""
has still been retained, but the term "subject of action is
situated," has been substituted by plain words clearly desig-
nating the circumstances under which the property forming
the subject of the action may confer the right of action in
this State.
§ 164. An assignment avoids the question. In view of
the difficult questions liable to arise where actions against for-
eign corporations are brought in courts having limited territorial
jurisdiction, or where in any court the plaintiff is also a non-
resident or foreign corporation, the safest practice is to
commence all such actions in the Supreme Court, and transfer
the claims before suit to residents. The assignment will con-
vey to the assignee the entire cause of action and all remedies
incident thereto.*
¹ McBride ⚫. Farmer's Bank of Salem, 26 N. Y. 450, 458; Besley v.
Palmer, 1 Hill, 482.
THE GROUNDS OF ATTACHMENT.
105
Non-Resident Debtors.
CHAPTER IX.
NON-RESIDENT DEBTORS.
SECTION 165. Non-residence. The second ground of attach-
ment, specified in the Code, and which exists in every State, is
the non-residence of the defendant. This feature of the attach-
ment law is peculiarly American. Under the common law
the property of a non-resident might be attached by a distrin-
gas, if he had a place of business within the realm.' And
where the defendant quit the kingdom before the suit was
commenced, leaving another in possession of his house and
goods; and the plaintiff, having served a summons at the
house, distrained the goods to compel an appearance, the
court held the process to be regular. In both of these cases the
defendant, though absent, retained his domicil in England. In
the former case, the defendant, a citizen, was detained by an
arrest in France, while his wife transacted business for him in
England; and in the latter, the service was made" at his house.”
"Home" was probably meant by the term "his house," as it
must have been "at his last place of residence," and that resi-
dence was still retained. But in the case of Morley v. Strom-
bom,' the court held, that where three partners (two residing
abroad and one in England) were sued for a partnership debt,
and the partner resident in England appeared to the action,
but refused to appear for the partners who resided abroad, the
sheriff, under a distringas issuing out of the Common Pleas,
against the two partners, might take partnership effects,
¹ Gurney v. Hardenberg, 1 Taunton, 487.
• Staines v. Johan not, 1 Bos. & Pul. 200.
8 Bos. & Pul. 254.
106
THE LAW OF ATTACHMENT.
Non-Resident Debtors.
though paid for by the partner resident in England alone, und
to whom the partnership was largely indebted. But in default
of partnership property, in such a case a levy could not be
made upon the separate property of the resident who appeared
in the action.'
Where a defendant resided abroad and had no person in Eng-
land to appear for him, his goods could not be taken under a dis-
tringas issuing out of the Court of Common Pleas. So, where
a plaintiff sued a defendant who was out of the country, for a
debt contracted in England by his wife in his absence, and pro-
ceeded by distringas, the court ordered the writ to be set aside,
and the issues levied under it to be restored. Chief-Justice
Mansfield, in delivering the opinion of the court, said: “The
credit having been given to the wife after the husband's
departure, renders this a case of peculiar hardship, but it must
not be understood that the court lays down a general rule,
that a man leaving, at his departure, debts in this country,
and effects also, the creditor may not in some cases distrain,
but that is not the case here.”•
§ 166. Under the custom of London the only ground of
attachment is the want of goods to be attached under the com-
mon-law process.
"When the defendant shall be returned
nihil," says Starkie.
Starkie. Practically, however, this rule is never
enforced. The custom being as ductile as the common law, the
plaintiff first secures the property in the hands of the defend;
ant's bailec, and then, if necessary, returnes his "nihil" to the
original process, subsequently executed. Although this process
is termed foreign attachment to distinguish it from the com-
mon-law writ, it is not peculiarly foreign. It applies to both
foreigners and residents. It is the garnishce process of the
common-law system of attachments. We have seen in the
¹ Goldsmith ♥. Levy, 4 Taunt. 299.
• Webster v. NcNamara, T. 82 Geo. III.; C. P. Imp. C. P. 7 ed,
Tidd's Practice, 112.
• Greaves v. Stokes, 1 Taunton, 485,
THE GROUNDS OF ATTACHMENT.
107
Non-Resident Debtors.
introductory chapter, that the Scotch system of horning, like
English outlawry, was only enforcable against citizens. The
American system was the first to adopt a process of purely
foreign attachments.
§ 167. The American system. Although this remedy is
applied in nearly every State, to the case of non-residents,
what is really included in that classification, remains a stand-
ing conundrum in our courts. Must the debtor acquire a domi-
cil or legal residence animo manendi in another State? Or
will an actual residence, for an uncertain period animo revert-
endi, or simply a prolonged absence not in any fixed habitation,
come within the true intent and meaning of the statute? As
he would, during his actual absence in either case, be a non-
resident in fact, we are forced, in solving this problem, to study
the object of the remedy, as well as the construction given to
the terms employed by the courts and by common acceptation.
§ 168. Object of the law. It is safe to premise that the
legislature intended to furnish a remedy against a debtor's
property in cases where, through his continual absence, the
ordinary process fails, for want of service. It would seem to
follow, that the necessary element is the inability on the part
of the plaintiff to procure personal service of the ordinary
process. Hence, non-residence would seem to be a question of
fact, and not of intent. Whether the continued absence be
voluntary or involuntary, permanent or temporary, the reason
for the remedy is the same. On the other hand, it may be
urged that if mere absence from the State renders the debtor
liable to have his property attached, our commercial interests
would be seriously impaired, through the liability of merchants,
while on business trips, to subject their property to the whims
of their creditors. To avoid unnecessary damage to the debtor
class, and, at the same time, to protect the rights of creditors,
the courts in some States have avoided either extreme, and
allowed the remedy, whenever debtors have secured a fixed
108
THE LAW OF ATTACHMENT.
Non Resident Debtors.
residence beyond the limits of the State, whether the domicil
or home be within or without their jurisdiction.'
§ 169. Are the terms "residence” and “domicil” synonymous ?
The decisions, however, are not harmonious. Many respect-
able authorities hold that the terms residence and domicil are
synonymous, and that, to become a non-resident, the defend-
ant's domicil or home must be ont of the State.
§. 170. The derivation of the two words indicates a distinc-
tion in their meaning. A home (domus) is something more
than a temporary place of remaining (residendi), however long
such stay may continue. The word resident denotes "one who
resides or dwells in a place for some time." Domicil is a place
where a person has his true, permanent home, his fixed estab-
lishment, to which, whenever he is absent, he has the intention
of returning (animus revertendi).* It is that place which has
more of the qualities of a principal or permament residence,
and more pretentions to be considered as such, than any other
place.'
¹ Wolf v. McGavock, 23 Wis. 516; Risewick 9. Davis, 19 Md. 82;
Dorsey v. Kyle, 80 Md. 512; Weber v. Weitling, 8 C. E. Green (N. J.)
441; Alston v. Newcomer, 42 Miss. 186; Matter of Thomson, 1 Wend.
(N. Y.) 45; Frost v. Brisbin, 19 Id. 11; Haggart v. Morgan, 1 Selden
(N. Y.) 422; Burrill ». Jewett, 2 Rʊb. (N. Y.) 701; Board of Supervis-
ors of Tazewell Co. v. Davenport, 40 Ill. 197; Leonard . Stout, 86 N.
J. 370; Hood's Estate, 21 Pa. St. 106; Graham v. Trimmer, 6 Kas. 230.
* Brundred v. Del Hoyo, Spencer (N. J.) 828; Hurlbut v. Seeley, 11
How. (N. Y.) 507; Tibbitts v. Townsend, 15 Abb. (N. Y.) 221; Lce v.
Stanley, 9 How. 272; Houghton v. Ault, 16 How. 77; S. C. on appeal,
25 How. 593, note; Chaine v. Wilson, Id. 552; Murphy ♥. Baldwin, 11
Abb. N. 8. 407; Thorndike v. City of Boston, 1 Metc. (Mass.) 245;
Cadwalader v. Howell, 8 Harr. (N. J.) 144.
• Per Robertson, Ch. J., in Burrill v. Jewett, 2 Rob. (N. Y.) 701.
See also for this distinction, Roosevelt v. Kellogg, 20 John. 208; Bartlett
v. Mayor, &c. of New York, 5 Sandf. 44; Douglas v. Same, 2 Duer, 110.
• Story's Conflict of Laws, § 43; Putnam ♥. Johnson, 10 Mass. 488.
• Rae High, Appellant, 2 Doug. (Mich.) 523.
THE GROUNDS OF ATTACHMENT.
109
Non-Resident Debtors,
§ 171. Effect of the distinction. Residence is an act.
Domicil is an act, coupled with an intent.' The terms are,
therefore, not convertible in their nature.' If we are allowed
to carry this distinction into the practice of attachments, the
issue is simplified and easily solved, it being simply a question
of fact for the jury to determine, whether the defendant
remained at any place out of the State a sufficient length of
time to acquire an actual non-residence. If so, his status is
fixed, and the legal consequences attaching will not be affected
by any secret animus or intent of the defendant. If the ques-
tion of residence is dependent upon, and complicated with
that of domicil, it becomes a mixed question of fact and intent,
and surrounded often by some of the most difficult and intricate
subtleties of the law. Who can probe the mind of another, or
solve the hidden designs of a soul, that speaks no language and
acts no part until stimulated by its own desires or moved by its
own caprices? If we can but move the question out of the
domain of intent, into the broad, open day of fact, a creditor
may know his rights and fearlessly use them.
But if an attachment against one who has for a long time
resided abroad, is liable to be defeated by proving a latent
intent of returning to some mental domicil within the State,
the statute will soon become a dead letter, as no creditor would
dare face the responsibility of a cross action for damages on
account of an illegal attachment, where the power is so pccu-
liarly placed in the hands of his opponent.
§ 172. The New York rule. This question first came up
in this State, in the matter of Thompson.' The old Supreme
Court, per Savage, Ch. J., says: "The counsel for the attach-
ing creditor takes a distinction between domicil and resi-
dence. Domicil includes residence with an intention to remain
in a particular place. He contends that absence without the
State, whether the debtor have his domicil, or a mere residence
1 See Vattel, 163.
• 2 Parsons on Contracts, 578.
• 1 Wend. 44.
110
•
THE LAW OF ATTACHMENT.
Non-Resident Debtors.
there, is equally within the object of our act, which authorizes
an attachment against the property of the absent debtor.
"It appears to me, the object of the statute was to author-
ize creditors to prosecute their debts when their debtors were
abroad; and whether their absence from this State is perma-
nent or temporary, whether it is voluntary or involuntary, the
reason for giving this remedy to the creditor is the same.
"The 23d section gives the remedy, and is as follows:
'That the estate, real and personal, of every debtor who
resides out of this State, and is indebted within it, shall be
liable to be attached and sold for the payment of his debts, in
like manner in all respects, and nearly as may be, as the estates
of debtors residing within this State.' The question, I think,
is, where was his actual residence, not his domicil. And
whether his national character was changed or not, does not
seem to me to affect the true question.
"The act is intended to give a remedy to creditors
whose debtors cannot be served with process. If the debtor
absconds or secretes himself, then an attachment issues. If he
notoriously resided abroad, then the attachment issues. But if
he goes openly to another State or country, and remains there
doing business, but intending to return when his convenience
will permit, he is not, as his counsel contends, an absent
debtor, and his property cannot be touched. He may become
a bankrupt abroad, as has Alexander Thompson; his property
inay be taken by his partners and used by them, or transferred
to his foreign creditors, as is attempted in this case; and the
creditor here may stand by and acknowledge and regret the
insufficiency of our laws, but the property cannot be touched.
Surely the legislature never intended such a state of things.
They have provided that a person confined in the state-prison
for life, may be proceeded against as an absconding debtor.
Such a debtor has, in truth, not absconded, but he is out of
the reach of the process of law, and therefore the legislature
has provided that his property shall be liable for the payment
of his debts.
"The reason why this remedy is given against the property
THE GROUNDS OF ATTACHMENT.
111
Non-Resident Debtors.
of debtors resident abroad, is equally applicable, whether the
debtor is absent permanently or temporarily. No length of
residence, without the intention of remaining, constitutes dom-
icil. A debtor, therefore, by residing abroad, without declar-
ing an intention to remain, might prevent his creditors from
ever collecting their debts. In my judgment, the present case
comes not only within the spirit of the act, but also within its
terms."
Nearly all of the reported cases in this State, previous to
1864, are considered in the decision of Chief Justice Robertson,
in the case of Burrill v. Jewett (2 Rob. 701). As it covers the
entire question from the view taken in New York, Mississippi,
Maryland, Illinois, New Jersey and Wisconsin, I will give the
decision entire, and supplement it with the views taken by
Justice James in Houghton v. Ault, which is the leading
decision of the series adopted by some of the courts of this
State, in opposition thereto.'
1 "ROBERTSON, Ch. J.—I think enough is admitted by the defendant
to justify the issuing of the attachment in these cases. He, it appears
by such admission, left this country for China, to take charge of three
trading vessels in which he was interested; they performed several voy-
ages to different ports in the Chinese and Eastern sens, and he has been
absent on that business for about two and a half years. That was
enough to render him not a resident of New York, so as to bring him
within the statute relating to such attachments. The case of Haggart v.
Morgan, decided in the court of last resort, is conclusive on this point.
1 Seld. 433, affirming 8. C., 4 Sandf. 198. In that case, absence
abroad, in attendance on business, for three years, was held sufficient to
constitute non-residence, notwithstanding the debtor, as in this case,
kept up his house in New York as he had previously done. It was also
there held that the statute contemplated actual residence, without regard
to domicil. Of course, the object of the statute was to provide for cases
where the party would probably not subject himself to the process of
our courts, within a reasonable time after judgment, by voluntarily
coming within its reach. Hurlbut. Seeley, 11 How. 507; 2 Abb. 138.
Such decision does not conflict with those in Barry v. Bockover, 6 Abb.
874; Chaine. Wilson, 1 Bosw. 678; 8 Abb. 78; Greaton v. Morgan, 8
Abb. 64; Leo v. Stanley, 9 How. 272; and Bache v. Lawrence, 17 How.
554; where the debtor, having his domicil in another State, came daily,
or with short intervals, to this State, to transact his business, but as
Į
44-
-
112
THE LAW OF ATTACHMENT.
Non-Resident Debtors.
§ 173. Domicil, general rules of construction. In
In many of
the States the question, either by express statutes or by a con-
struction of the courts, turns upon the question of domicil.
constantly returned to the place of his domicil; thus making his
absences, however numerous, only temporary. Nor does it conflict
with that of Burrows v. Miller, 1 How. 849, where the stay was uncer-
tain, and depended upon the contingency of commencing business. The
former Supreme Court of this State, as far back as The matter of Thom-
son, 1 Wend. 43, made the test of residence abroad, engagement in busi-
ness for a time, whether temporarily or permanently, and Chief Justice
Nelson adopted the same criterion, of an intention to remain at least for
a time, for business or other purposes. Frost v. Brisbin, 19 Wend. 11.
The distinction between the two kinds of stay abroad is, therefore, of
long standing; while, on the other hand, cases which seem to place res-
idence and domicil on somewhat the same footing, Thorndike v. City of
Boston, 1 Metc. 245; Cadwallader v. Howe, 8 Harr. 144, are rendered
clearly inapplicable. See Douglass v. Mayor, &c. of New York, 2 Duer,
110.
The derivation of the two words, domicil and residence, fully points
out the distinction in their meaning. A home (domus) is something
more than a temporary place of remaining (residendi) however long such
stay may continue. Lexicographers recognize such difference in their
definitions of the two, and it is adopted as a legal distinction in several
cases (Roosevelt v. Kellogg, 20 John. 208; Bartlett v. Mayor, &c. of New
York, 5 Sandf. 44; Douglass v. Same, 2 Duer, 110), besides that of Hag-
gart v. Morgan, already referred to. But still, the nature of the stay
in a place, which renders it a residence, remains to be determined. Tho
permanence which is to make it so, does not depend solely upon past
duration; but the probability of a future continuance, growing out of
the object of the sojourn in such place. One piece of business does not
seem to be sufficient (Matter of Fitzgerald, 2 Caines, 818; Boardman ♥.
House, 18 Wend. 512; Crawford v. Wilson, 4 Barb. 504; Hurlbut v. See-
ley, 11 How. Pr. 507; S. C., 2 Abb. 188); unless it continue a great
length of time. Haggart v. Morgan, ubi supra. Nor is the continuous
conduct of a business in a place not one's domicil sufficient where the
returns to the latter are constant and frequent, with only daily or other
short intervals of absence. Barry v. Bockover, 6 Abb. 874; Greator v.
Morgan, 8 Id. 64; Chaine v. Wilson, 1 Bosw. 673; Lee v. Stanley, 9 How.
272; Houghton v. Ault, 16 Id. 77; Id. 87, n; Bache . Lawrence, 17 Id.
554. Of course, for the length of time necessary, no fixed rule can be
established; while three years and a half was held enough in Haggart v.
Morgan, four months in Crawford v. Wilson, and even ten months in
THE GROUNDS OF ATTACHMENT.
113
Non-Resident Debtors.
The rules applicable to the acquisition and retention of a dom-
icil, are considered at length in the case of Crawford v. Wilsou,
4 Barbour [N. Y.] 505. And also, by Judge Story, in his
Hurlbut. Seeley, was held not enough; but where an absent plaintiff
was required to give security for costs, a year was considered sufficient.
Wright. Black, 2 Wend. 258. The nature of the business in which
the party intends to be engaged may be looked at to determine the
uncertainty or probability of the duration. In these cases, the defend-
ant Crockett was absent two years and a half, and the nature of the
business in which he was engaged was such as to render the time of his
return very problematical, and the duration of his absence such, as,
probably, to delay the plaintiff an unreasonable time from the benefit of
the process of our courts, in compelling an appearance or collecting his
judgment, if he obtained one. A creditor is not bound to wait until a
debtor shall, at some remote and uncertain period, finish his errand
abroad, and return to his domicil, whether such errand be the collection
of the charter money, and performances of voyages by three or any other
number of vessels, or be the conducting of an established business.
The evidence before me establishes such an absence abroad of the
defendant Crockett as to constitute him a non-resident, so as to subject
his property to the attachment at the time it was issued. I am aware
that the term resident, for many purposes, has been differently construed,
such as in case of the examination of a witness (Pooler. Maples, 1
Wend. 65); succession to estates (Roosevelt o. Kellogg, 20 John. 208;
Isham v. Gibbons, 1 Bradf. 69); taxation (Douglas t. Mayor, &c. of
New York; Bartlett. Same, supra); a discharge from debts (In re
Wrigley, 8 Wend. 134); and exercise of political rights (Chaine v.
Wilson, ubi supra); but it will be found that in such a case the object
of requiring a residence was different from that in case of a debtor.”
1 Houghton, and four other cases t. Ault. JAMES, Justice.-
"The next question is, was the defendant a resident or not, within the
State of New York, at the time of issuing the attachment
Under the Code, an attachment is not a process for the commence-
ment of an action; it is an order in the action, for the arrest of the
debtor's property, in the nature of bail for the payment of such judg-
ment as the plaintiff may obtain; it may issue, in a proper case, at the
time of commencing the action, or at any time afterwards. In these
respects, it is entirely unlike the attachment provided by the Revised
Statutes, that being the commencement of a proceeding, instituted and
conducted out of court, before an officer who derived his power in the
matter from the statutes.
The main facts in the case are these: The defendant, a foreigner,
8.
114'
THE LAW OF ATTACHMENT.
Non-Resident Debtors.
Conflict of Laws, § 842-46. From the principles contained
therein, as modified by later cases, the following general rules
may be laid down:-
having a family, residing in Portsmouth, in Canada, and there owning
a ship-yard, comes to Ogdensburgh and leases a marine railway, on the
10th of July, 1856; in that lease he covenants not to carry on ship-
building at any other place than the yard leased, after the expiration of
six months; he enters, immediately, into the possession of the yard,
and continues to carry on business there, until the issuing of this attach-
ment on the first day of December, 1857. During this period of seven-
teen months, the defendant was most of the time at Ogdensburgh, his
family remained at Portmouth, keeping house. The defendant, not-
withstanding his covenant in his lease, continued work in his ship-yard
at Portsmouth, until some time in the month of September, 1857. In
the meantime, he became largely indebted at Ogdensburgh. About the
time of taking his lease, he mortgaged to his lessors the timber, spike,
oakum, iron, blacksmiths' and shipwrights' tools, shop furniture, &c., as
security for the payment of certain notes to the amount of $4,340.88.
In April, 1857, he assigued his interest in his lease, and all his property
as security for indorsements made and to be made. His whole indebt-
edness at Ogdensburgh appears to be about $22,000, and his assets about
$5,000. He frequently represented himself as a non-resident, and stated
that his property was liable to attachment; that by the terms of his
lease, he was only to pay so much on the tonnage of each vessel drawn
out and repaired, as rent.
Upou these facts, the defendant insists that he is a resident of the
state of New York, within the meaning of the attachment law, and
that his property is not subject to arrest by order of the court.
To sustain this position, his counsel cited Haggart v. Morgan (4
Sand. 198; same case, 1 Sel. 422); In the matter of Thompson (1
Wend. 45); Towner v. Church (2 Abbott, 289); Bartlett v. The City of
New York (5 Sand. 44). The case of Haggart v. Morgan was an action
on a bond given to release certain property seized by virtue of an at-
tachment issued under the Revised Statutes. On the trial, the suretics
offered to show that the defendant in the attachment was a resident at
the time of issuing the same, by proving that his house was in the city of
New York; that he was housekeeping there at that time, and had been for
many years, that his absence at New Orleans was temporary, being
necessarily detained there by a lawsuit; that he had been so detained
during his whole absence of three years. The court refused the offer:
1st. Because the offer showed the defendant to be a non-resident within
the spirit of the act; and, 2nd. That giving the bond to discharge the
THE GROUNDS OF ATTACHMENT.
115
Non-Resident Debtors.
§ 174. FIRST. Domicil of origin. The domicil of the
parents, at the birth of a child, is the domicil of the child.
Illegitimate children take the domicil of their mother.
attachment prevented him from showing such fact. At general term, the
court held, 1st. That the defendant was estopped from contesting that
fact of non-residence in a suit on the bond. This disposed of the case-
but the judge who delivered the opinion went on further to say: "It
was well observed by the judge on the trial, that the facts offered to be
proved, showed defendant a non-resident debtor within the meaning of
the statute. He had left the State without paying this demand, and
had remained abroad for three years. During all this time the plaint-
iffs had been deprived of their just. dues; and it would be strange in-
deed if they could not, after such a prolonged absence, make their
debtor's property to respond for this debt, because he had all this
time the purpose of returning to the state when it might suit his conven-
ience.' It will be observed, that this part of the opinion was wholly
obiter and further, that it was not claimed or offered to be proven
that defendant had a family, but only that he kept house, within the
state.
CA
When this case came before the court of appeals, the judgment below
was affirmed, and the ruling of the judge at circuit approved-both as
to the estoppel and non-residence. On the latter point, the court said:
'The ruling of the judge was probably correct for the reasons assigned
by him. In the matter of Thompson (1 Wend. 45), the distinction was
taken between the residence of the debtor and his domicil.
It was
there held that his residence might be abroad, within the spirit of the
statute, which was intended to give a remedy to creditors whose debt-
ors could not be served with process, while the domicil continued in
this state. In Frost v. Brisbin (19 Wend. 14), it was said in a case like
the present, that actual residence without regard to the domicil of the
defendant was within the contemplation of the statute. The defend-
ant was, therefore, a non-resident, within these decisions, although
domiciled in New York.'
It will be seen that the court of appeals asserts no opinion of its own;
it merely declares the defendant a non-resident within the decision of
the cases cited.
The substance of the facts in one case is set out; the other case, Frost
. Brisbin, was this: The defendant, a citizen and resident of this
state, took a large stock of goods to Wisconsin, leaving his wife and
child at board in this state, stating that he intended to make Milwaukee
his future residence. He remained at Milwaukee ten months in busi-
ness, then returned to this state on a visit, and after staying two
116
THE LAW OF ATTACHMENT.
§ 175.
ried women.
is acquired.
Non-Resident Debtors.
SECOND. Constructive domicil of minors and mar-
This domicil of origin continues until a new one
And the domicil of the husband and father is
months, was arrested and held to bail. After his arrest he returned to
Milwaukee and continued his business. Before his visit, he was ap-
pointed a commissioner, by the legislature of Wisconsin, to distribute
the stock of a bank, and a director of the same. On a motion to dis-
charge the order of arrest, the court, after reviewing and citing the var-
ious cases, and particularly that of Thompson, in 1 Wend. 45, say, 'the
cases cited, established that the transient visits of a person, for a time,
at a place, do not make him a resident while there. There must be a
settled fixed abode, an intention to remain permanently, at least for a
time for business, or other purposes, to constitute a residence, within the
legal meaning of that term.' One of the cases expressly, and all of
them virtually, decide, that actual residence, without regard to the dom-
icil of the defendant, was within the contemplation of the statute.
"The domicil of a defendant may be in one State or territory, and his
residence in another.'
It will, therefore, be observed that the first case which is made to
uphold Haggart v. Morgan was held to be within the spirit of the stat-
ute (both being commenced under the Revised Statutes), because such
statute was intended to give a remedy to creditors whose debtors, being
absent, could not be served with process, though their domicil contin-
ued in this State; and in the second case, the defendant had no domicil→→
his wife and child were mere boarders in this State, his place of busi-
ness being clearly established in Milwaukee, and he claiming not that
he had not a residence in Wisconsin, but that his two months' stay here
on a visit to his wife exempted him from arrest, under the non-impris
onment act of 1831.
The reasoning to sustain the foregoing decisions has no application
to this case. This action, being commenced under the Code-the attach-
ment is not an original process; the Code has provided another means
for commencing actions against absent and non-resident debtors; and
although the defendant in the first case may have been a non-resident
within the meaning of the Revised Statutes, for the reason assigned—he
was in fact a resident outside that statute. It is also to be observed
that that decision was in furtherance or, and not to defeat, the ends of
justice. So of Frost v. Brisbin, it was in furtherance of justice, and was
based upon facts entirely dissimilar to the case under consideration; it
was but giving construction to a statute; in truth, it only decided what
was the intention of the statute in exempting persons from arrest.
The case in the court of appeals being based entirely upon these twe
THE GROUNDS OF ATTACHMENT.
117
Non-Resident Debtors.
presumptively that of the wife and children. But if they
reside apart from him by a permanent, voluntary act, or judi-
cial decision, they may acquire a distinct domicil of their own.'
1 Greene v. Greene, 11 Pick. (Mass.) 411; Sanderson v. Ralston, 2
La. An. 812; Colburn . Holland, 14 Rich. (S. C.) Equity, 176; Penn-
sylvania v. Ravenel, 21 How. (U. 8.) 103. As to separate domicil of
the wife, see Harteau v. Harteau, 14 Pick. (Mass.) 187: Chcever v. Wil-
son, 9 Wall. 108; Harding v. Alden, 9 Greenleaf, 140; Jenness v. Jen-
ness, 24 Ind. 355.
As to domicil of minor, see Andrews v. Heriot, 4 Cowen, 516, n. 2.
As to persons of unsound mind, see Payne v. Town of Dunham, 29 Ill.
128; Sharpe's. Crispin, 1 P. & D. 611.
cases, so far as anything is said about residence, without expressing
any opinion of its own, and the decision of such point not being essen-
tial to the case, I cannot regard it a binding authority.
The case of Bartlett o. New York City, (5 Sand. 44), was an applica-
tion for an injunction to stay the collection of a tax assessed agains,
the plaintiff as a resident of the City of New York. The facts showed,
that prior to May, 1849, defendant resided and kept house in New York;
he then broke up housekeeping and removed his family to Westchester
county; he remained there until December, when he took rooms with
his family in New York, where he remained until April, 1850; he then
returned to Westchester county, and remained until December, 1850,
when he again took rooms in New York; during all this time his only
place of business was in New York. The general act for the assessment
of taxes requires every person to be assessed in the town or ward where
he resides when the assessment is made; and by the laws of 1850, when
a person shall reside during any year in two or more counties or towns,
his residence for the purposes, and within the meaning of the section
above, shall be deemed and held to be in the county and town in which
his principal business shall have been transacted. It will thus be seen
that the plaintiff's liability was clear. The court, however, saw fit to
examine all the cases above cited, and adopted the definition there
given to the term 'residence;' a conclusion not quite necessary to the
decision of the case.
The next case is that of Towner v. Church (2 Abbott Pr. Rep. 299).
This case was decided at a general term of the first judicial district, in
1855. When the attachment was issued, whether under the Revised
Statutes or the Code, does not appear. The facts were these: The de-
fendant had resided with his family in New York city, and done busi-
ness there for a number of years, when he and his family removed to
118
THE LAW OF ATTACHMENT.
Non-Resident Debtors.
§ 176. THIRD. Domicil of choice. The union of act and
intent. The domicil of origin is lost immediately, when a
a person of full age, or legally competent to act for himself,
takes up his abode elsewhere, with the intention of abandon-
Connecticut, and called that their residence; but he kept rooms in the
city where he boarded and lodged all the week, attending to business,
(except that Sundays he spent in Connecticut). One judge held that
the defendant was not a non-resident of the State in the sense of our
attachment laws; and another judge held that whenever a person car-
ried on a regular and systemized business in New York, in which he has
invested his working capital, and in such business spends his time dur-
ing the regular business hours of the day, having not only his stock in
trade invested there, but keeping his bank account there, and if all his
ordinary transactions take place there, such person fails to come within
the fair intent and meaning of our attachment laws, although his family
may be actually residing in New Jersey. That process, in such case,
either against the person or property, is as easily served, as against one
whose family resides in the State.
This is a strong case, and more nearly in point then any other cited;
and if the facts in the case under consideration came within the rule
above stated, I should feel bound by that decision, although I am un-
able to reconcile my judgment with its broad conclusions. That a man
may have a residence in one State to vote, and in another to exempt
him from attachment, seems preposterous. The idea that the word
"resident," when used in the statute, means domicil, or home, or hab-
itation, in one place, and the reverse in another, is absurd. Besides,
if in Towner v. Church it was an attachment under the Code, the dis-
tinction between such an attachment and one under the Revised Stat-
utes does not seem to have been noticed. There is much more propriety
in requiring a debtor whose domicil is without the State to give secu-
rity for the debt, than one whose domicil is within. Such a debtor,
pending litigation, might sell his property and remain at home, in
which event he could not be reached by any of the provisional remedies
or supplementary proceedings provided by our laws. But the facts of
the latter case were entirely different from the facts in this. In that,
the defendant had a fixed business and permanent residence here before
he removed to Connecticut. The business remained and was not broken
up, and he himself continued with his business six days in the week;
while in this case, the defendant never had a residence here--his house,
domicil, family, and original business, were in a foreign country, and
continued there. His business here was not of that permanent nature
required in Towner ». Church; it was a lease, it is true, for ten years;
THE GROUNDS OF ATTACHMENT.
119
Non-Resident Debtors.
ing the former home, and of remaining permanently in such
new place of abode. But if the person subsequently removes
therefrom for the purpose of returning to his domicil of
origin, the latter reverts the moment the former is given up.'
'As to the latter proposition, see The Indian Chief, 3 Rob. 12; La
Virginie, 5 Id. 98; The Venus, 8 Cranch, 253; State v. Hallett, 8 Ala.
159; Catlin v. Gladding. 4 Mason (U. S.) 308.
but there was no covenant to carry on the business that length of time;
and he only had to pay, as rent, tonnage on vessels actually drawn out
for repairs.
Under our former statutes, respecting attachments, where there was
no other way of reaching the property of a debtor whose domicil was
in this State, but who remained abroad, a construction that he was a
non-resident might be justified by the necessity of the case, and iu
furtherance of justice; but as the necessity no longer exists, that rule
should be no longer followed. But there are other decisions and defi-
nitions on this point than those above cited. Burrill, in his Law Dic-
tionary, defines resident, as one who has a seat or settlement in a place;
one who dwells, abides or lives in a place. Bouvier, us a person coming
into a place, with intention to establish his domicil or permanent resi-
dence, and who in consequence actually remains there. Webster, a dwell-
ing or having an abode in a particular place for some time. In the matter
of Fitzgerald (2 Caines, 817) it was held, that a person who came into
the State on a commercial adventure, without any intent of settling
here, has not a resident within the meaning of the act for relief against
absconding debtors. In the matter of Wrigley (4 Wend. 602, and 8
Wend. 134), Chief Justice Savage, in speaking of the case of Fitzgerald,
said, it was held, that a resident within the State, was one who had a
residence of a permanent and fixed character. Chief Justice Shaw, in
1 Metcalf, 245, says, 'the question of residence, inhabitance, or domi-
cil, although not in all respects precisely the same, they are nearly so,
and depend much on the same evidence.' In Crawford . Wilson (4
Bar. 505), the general term of this district held that the 'terms legal
residence, inhabitance and domicil, mean the same thing; that by legal
residence, they meant the place of a man's fixed habitation, where his
political rights are to be exercised, and where he is liable to taxation.'
The case of Lee . Stanley (9 Hów. Pr. Rep. 272), was a much
stronger case for the defendant, as shown by his own affidavit, than the
present, and yet, the motion to discharge the attachment was denied.
In that case, the defendant had actually resided and carried on mer-
cantile business in Franklin county, in this State, for about two years,
120
THE LAW OF ATTACHMENT.
+
Non-Resident Debtors.
§ 177. FOURTH. Presumptions in designating a domicil.
The place where a married man's family resides,' or where a
single man transacts his business and sleeps,' or where any per-
¹ Bempde v. Johnstone, 8 Vesey, 198; Bump v. Smith, 11 N. H. 48.
⚫ Somerville ⚫. Somerville, 5 Vesey, 750; Story's Conflict of Laws,
§ 43.
with the honest intention of making such place his permanent residence;
but he had a family, and had kept house and entertained his friends in
New Hampshire, during his whole stay in this State. The court held,
that his legal residence was in the State of New Hampshire. In my
judgment, the Code, where in its provisional remedies, it uses the term
resulence or residens, means legal residence. Within the principle of
the case of Crawford v. Wilson, as applied to the facts in this case, the
defendant was not a legal resident of the State at the time the attach-
ment issued. At that time he had a fixed habitation and abode
in Canada, where his family resided and kept house, and where he and
they had resided and kept house, long before he came to Ogdensburg,
and where he had and did entertain his friends. He had never changed
that habitation. If he ever had the intention of changing his abode,
and removing his family to Ogdensburg, of which there is great doubt,
judging from the whole case, it had been abandoned some months be-
fore the attachment issued. He continued to own a marine railway in
Canada, and to carry on business there as late as September; his letting
of said railway, at that time, looked as though not made in good faith,
He had other property, to a considerable amount in Canada, if credit
can be given to his statements; and thus his property, his home, and his
family, were in Canada. Against this is the fact that he had done
business at Ogdensburg for the past seventeen months, giving it his
individual presence and attention; but the railway, where his business
was conducted, was occupied under a lease for ten years; he was not,
by said lease, compelled to carry on the business, nor to pay rent unless
he did, as he only paid on the tonnage of vessels actually drawn out.
He had mortgaged all his property here at about the time of his
lease, and last April assigned his interest in the lease itself, together with
all his property here, as collateral security for an amount which here he
had no means of paying. His business might, therefore, be abandoned at
any moment. He had received large sums of money for work, and left
unpaid his tradesman bills, mechanics' and laborers' wages, and suffered
his notes to go to protest, thus showing that his money was secreted or
had been expended on his property in Canada. In his conversations,
he spoke of himself as a non-resident, and his property as liable to
attachment.
THE GROUNDS OF ATTACHMENT.
121
Non-Resident Debtors.
son votes, or exercises municipal duties and privileges, is pre-
sumed to be his domicil;' and if a married man resides equally
at two different places in different times of the year, that will
be esteemed his domicil which he himself selects or describes,
or deems to be his home, or where he transacts his business.*
$178. FIFTH. Presumptions designate but do not always
determine. Presumptions from mere circumstances will not
prevail against positive facts which fix and determine the dom-
¹ Somerville . Somerville, 5 Vesey, 750, 788; Harvard College v.
Gore, 5 Pick. (Mass.) 370.
* Story's Conflicts of Laws, § 43. Per Lord Thurlow in Bruce v.
Bruce, 2 Bos. & Pul. 229, note; 3 Vesey, 201; Wells v. Ryan, 44 Ill. 40.
“Under such a state of facts, I have no hesitation in saying that the
defendant's legal residence was in Canada. Neither have I any doubt
that within the fair intent and meaning of the attachment law, under
the Code, tlie defendant was a non-resident of the state, whether such
residence be termed legal or actual."
The foregoing decision was affirmed at General Term in May, 1858,
and in the Court of Appeals in 1863. See note in 25 How. Pr. 593. The
opinion of the Court of Appeals is not reported. Doubtless there was no
written opinion. Whether the general conclusions of the lower court
as to domicil and residence were adopted by the Court of Appeals, or
whether the affirmance was limited to the question of non-residence
under the facts presented, we have no means of ascertaining; but it must
be presumed that if they considered anything farther than the legiti-
mate issue before them, that fact would be specified in a written opinion.
This case has since been approved and followed in Chaine v. Wilson,
How. 557; Murphy v. Baldwin, 11 Abb. N. S. 407; and in Greene ».
Beckwith, 88 Mo. 384; and Wheeler v. Cobb, 75 N. C. 21.
In the case of Murphy ». Baldwin, decided at a Special Term of the
Common Pleas Court in 1873, the defendant, a manufacturer of car-
riages in this city, had furnished apartments over his place of business,
where he took his meals and slept. His family resided at Litchfield, Conn.,
which he often spoke of as his home, and where he resorted not oftener
than once a week on a day's visit, and then principally in the summer
and fall months. During several months previous to the suit he was
uninterruptedly in the city. The court held that his furnished apart-
ments were simply a resting place while he was in the city, and that his
home was in Connecticut, and that he was therefore a non-resident within
the meaning of the statute of frauds.
122
THE LAW OF ATTACHMENT.
Non-Resident Debtors.
icil.' And this depends not upon the proof of particular facts,
but whether all the facts and circumstances taken together,
tending to show that a man has a home or domicil in one
place, overbalances all the like proofs tending to establish it in
another."
§ 179. SIXTH. Every person has a domicil and but one.
A person must have a domicil somewhere; and he can have only
one domicil at one and the same time,' and the existing domicil
is always retained until a new one is acquired.*
§ 180. SEVENTH. The acquisition and retention of a domicil
To acquire a domicil, two things must concur: 1st, The res-
idence. 2d. The intention to make it the home of the party;
but when acquired, the intention, the animus manendi or
revertendi, is sufficient to retain it.
§ 181. The New York decisions-How they may be harmo-
nized. Whether or not the rules of domicil will apply to the
question of residence, is, as we have seen, an unsettled question
in this State. There is, however, a certain principle that will
harmonize all the decisions upon this point: to wit, that the
rule must be taken most strongly against the debtor."
Story's Conflict of Laws, § 43.
Abington v. North Bridgewater, 23 Pick. 170. See, also, The Venus,
8 Peters Cond. R. (U. S.) 115; Lyman o. Fiske, 17 Pick. (Mass.) 231;
Thorndike v. City of Boston, 1 Metc. (Mass.) 242; Moore v. Budd, 4
Hagg. Eccl. 852.
Abington . North Bridgewater, 23 Pick. (Mass.) 170; Crawford v.
Wilson, 4 Barb. (N. Y.) 503; Story's Conflict of Laws, § 43; Thorndike v.
City of Boston, 1 Met. (Mass.) 242; Killburn v. Bennett, 8 Id. 199.
*Matter of Thompson, 1 Wend. (N. Y.) 43.
'State v. Hallett, 8 Ala. 159; White . Brown, 1 Wallace, Jr. 217;
Horne o. Horne, 9 Ired. (N. C.) 99; Hardy v. De Leon, 5 Texas, 211;
Ringgold v. Barley, 5 Md. 186; Glover v. Glover, 18 Ala. 367; Brewer v.
Linnaeus, 86 Me. 428; Hoskins v. Matthews, 85 Eng. Law & Eq. 532;
Hairston . Hairston, 27 Miss. 704; Otis v. Boston, 12 Cush. (Mass.) 44.
• For a full statement of this rule see section 189, infra.
THE GROUNDS OF ATTACHMENT.
123
Non-Resident Debtors.
§ 182. Same-Decisions in other States-Mississippi. That
a defendant may, for the purposes of attachment, become a
non-resident before he has acquired a legal domicil in another
State, is a principle that has not been expressly controverted
by any decision in this State, and is supported by the highest
judicial authority in nearly every instance where the question
has been expressly raised. Thus, in Alston v. Newcomer (42
Miss. 186), the court held, that a citizen of Mississippi may
retain his dwelling-place there, with its furniture, undisturbed,
in the charge of a friend or tenant for a year or more, while he
is educating his children abroad, and occupying a hired house
there for that purpose. He retains a domicil in Mississippi, but is
a "resident" abroad, and cannot be served with process, and
is therefore, a non-resident within the meaning of the statute.
§ 183. Maryland. So, in Dorsey v. Kyle (30 Md. 512), it
was held, that an attachment might issue against a citizen of
that State who, one year before, went to Winchester, Va., on
a visit with the intention of returning in a few days, but, being
prevented by the Confederacy, joined their army, intending to
return home as soon as opportunity offered.
§ 184. Wisconsin. In Wolf v. McGavock (23 Wis. 516),
the defendant leased his dwelling-house in Wisconsin, which,
for a long time, had been his homestead, reserving the use of
certain rooms where he kept some of his goods and furniture,
and left with his family for Iowa, intending to return after
completing certain railroad contracts. Six months after his
departure an attachment was sustained against him on the
ground of being a non-resident.
185. Pennsylvania. In Taylor v. Knox (1 Dallas),
where a citizen, of Pennsylvania removed to another State, and
then went to England on business, with the intention of return-
ing to his old home in Pennsylvania in the spring, the court
held, that he was a non-resident within the meaning of the
attachment law.
124
THE LAW OF ATTACHMENT.
Non-Resident Debtors.
$186. Same. In the case of Nailor v. French (4 Yeates
Pa. 241) an attachment was sustained against a citizen of Phil-
adelphia, as a non-resident debtor, who embarked as super-
cargo on a vessel trading with the West Indies, with the inten-
tion of returning in twelve or eighteen months. At the time
of his departure he took a part of his property with him, and
assigned the balance to a trustee, for the benefit of his creditors.
§ 187. Kansas. In the case of Graham v. Trimmer (6
Kas. 230) the court held, that where the defendant moved
from Kansas to Pennsylvania, with the intention of returning
to his home in Kansas in two years, and actually did move
back in one year, he was a non-resident of Kansas during the
time of his departure (see, also, Hoggett v. Emerson, 8 Kas.
262, and Foreman v. Carter, 9 Kas. 674).
§ 188. New York State. The same principle has been
adopted in this State in matter of Thompson (1 Wend. 54);
Towner v. Church (2 Abb. 299, 68 N. Y. 370); IIaggart v. Mor-
gan (4 Sand. 198; 1 Seld. 422); Bartlett v. The City of New
York (5 Sand. 44); Burrill v. Jewett (2 Rob. 701). In the latter
case a citizen of this State was deemed a non-resident on account
of two and a half years' absence in China on business, although
he retained his home or domicil in New York. In the case of
Haggart v. Morgan, which received the approval of the Court
of Appeals of this State, an attachment was sustained against
a citizen, who was detained in New Orleans three years by a
lawsuit, although his family resided in New York, and his
absence was merely temporary.
§ 189. The true rule in this State. The cases all tend to
establish the rule, hereinbefore asserted, that a non-resident is
one who has either a fixed temporary residence or a domicil in
another State, or who has for a long time been beyond the
reach of personal service.
If we study carefully the decisions of Burrill v. Jewett, and
Houghton v. Ault, contained in the foot-notes herein, and
THE GROUNDS OF ATTACHMENT.
125
Non-Resident Debtors.
which represent the two theories in this State, we will see that
both are within this rule.
It is only where the principles of the former case would
work against creditors that a distinction is drawn. The two
rules, therefore, run parallel and do not conflict with each
other. The one holds that a debtor is a non-resident if he
places himself for an extended period beyond the jurisdiction
of our courts, although he may have a domicil here. The
other acquiesces therein, and extends the rule by holding that
he is also a non-resident if his domicil is in another State,
although he himself may be within the reach of process in this
State. There can be no direct clashing of authorities, as both
principles have been approved in the Court of Appeals, and
each has it own legitimate basis of action. It is only when
the courts go beyond the facts and discuss theories that they
differ.'
The last reported case in this state on this point is Mayor . Genet
(4 Hun, 487; aff. 63 N. Y. 646). At General Term Justices DANIELS
and BRADY delivered the controlling opinions, in which they uphold an
attachment against one domiciled in this state.
Justice DANIELS says: "The affidavit in this case, though very
imperfectly and inartistically drawn, shows that the defendant was tried
and convicted, in December, 1873, of the offense of obtaining a portion
of the money sued for, by means of false pretenses; that, shortly after
his conviction, and before the time fixed for him to receive sentence, he
escaped from the custody of the sheriff of the city and county of New
York, and absconded; and though the most strenuous efforts have since
been made to discover his whereabouts, he still continues concealed. The
defendant had been convicted of a grave crime about three months
before the attachment was issued, and to avoid sentence and punishment,
escaped from the officer having him in custody, and has ever since
remained a fugitive from justice, successfully eluding the efforts of the
officers to discover his place of concealment.
The plain and reasonable inference indicated and supported by these
circumstances is, that he at once left the state in order to place himself
beyond the control and power of its officers. Safety could be secured in
no other manner; and that being the defendant's object, he would be
inclined to obtain it in that way, and as expeditiously as circumstances
would permit. The supposition that he could remain in the state and
be discovered by no one is incredible, in view of the exertions made to
126
THE LAW OF ATTACHMENT.
Non-Resident Debtors.
§ 190. Application in other cases. The distinction between
residence and domicil is not confined to the case of attachments.
It was applied in the old Supreme Court in a proceeding for
find him. The natural impulse prompting his flight would be at once
to place himself out of its limits, and that he must be presumed to have
done as soon as circumstances allowed it to be accomplished. And, for
the same reasons, it cannot be plausibly supposed that he has ever, since
then, returned within its borders. From the time of his escape from the
officers, it is to be presumed he has been a fugitive in some foreign state,
for that alone could furnish him the security sought by him against
their vigilance and efforts to capture him. And it is not to be supposed
that his absence from the state is intended to be voluntarily abridged.
The motive that led to his flight will induce him to continue his resi-
dence abroad indefinitely; for in no other way can he protect himself from
the punishment due to his crime.
These facts and conclusions, which appear by the affidavit on which
the attachment was issued, are clearly sufficient to show that the defend-
ant was not a resident of the state when the attachment was issued. The
fact that his family may continue to reside within the state, and that
his home or domicil may be here, is not enough, under the circumstances
shown, to render him a resident of the state; for a person may have his
home or domicil in this state and be at the same time a resident of
another; and when that is the case, he is subject to the attachment laws
as a non-resident debtor. The domicil is the habitation fixed in any
place with the intention of always staying there, while simple residence
is much more temporary in its character. These subjects were fully
explained in the case of Thompson (reported in 1 Wend. 43). His
domicil seems to have been in this city. He left it partly on business
and partly on pleasure, and remained away until an attachment was
granted against him as a non-resident debtor. The same principle was
applied to the case of a debtor who had been absent from this state from
May, 1836, to March, 1837, when he returned on a visit to his family, and
was arrested as a non-resident. Though his domicil was in this state,
it was held, under the circumstances, that his residence was out of it,
and for that reason his arrest was sustained. (Frost v. Brisbin, 19
Wend. 11.) And both these cases have since been approved in the Court
of Appeals, in Haggart o. Morgan (1 Seld. 423), where the property of
the defendant was held liable to an attachment as a non-resident of this
state upon a mere absence of three years in New Orleans, where he was
necessarily detained upon a law suit. The attachment in the present case
was issued under a similar provision of the law to those before the
THE GROUNDS OF ATTACHMENT.
127
A
Non-Resident Debtors.
an arrest under the Stilwell Act,' and, also, for the taking of
depositions, the court holding that a person residing without
the State of New York, though domiciled in the State, was
within the meaning of the Statute, allowing the deposition of
a non-resident witness to be taken.' So held, also, in an appli-
cation for an injunction to stay the collection of a tax assessed
against the plaintiff as a resident of the city of New York.'
§ 191. Other instances-Illinois, Pennsylvania.
The same
principle was adopted under the revenue laws of Illinois,
in a late case, the court holding, that a person might have
a domicil in one State, and a residence in another. So, in
'Frost v. Brisbin, 19 Wend. 11.
'Pooler v. Maples, 1 Wend. 65.
Bartlett v. New York City, 5 Sand. 44.
• Board of Supervisors of Tazewell Co. v. Davenport, 40 Ill. 197.
Court in the other cases, and it was properly allowed under the construc-
tion they maintain.”
Justice Brady also delivered the following opinion:-"Although it
may be that it does not appear that the defendant in this action fled
from the jurisdiction of this court to avoid the service and civil process,
it is not denied that he left for the purpose of preventing the conse-
quences of his conviction for a criminal offense. The effect of such an
act must be to deprive the person committing it of his character as a
resident. He places himself designedly beyond the reach of the power
of the state by leaving its territory, and in terror of its laws.
The pre-
sumption arising from that circumstance, in reference at lcast to the
exercise of jurisdiction over his property, is that he does not intend to
return. It is not susceptible of any other conclusion consistent with
the object and intent of his flight. He abandons deliberately his resi-
dence. It is an unqualified, unconditional act, and one which, as the
decision of this court and the Court of Appeals show, deprived him of
the right to review on exceptions the trial by which he was convicted.
When a man thus conducts himself, he waives acquired rights which
depend upon his presence in the state, or circumstances which warrant
its presumption, and is to be treated as if he were not present, and had
no rights founded upon that legal attitude. He became, in other words,
to all intents and purposes, for the enforcement of remedies, a non-
resident of this state. I agree with Justice Daniels that the order should
be affirmed."
128
THE LAW OF ATTACHMENT.
Non-Resident Debtors,
Pennsylvania the Supreme Court held, that "residence and.
domicil are not convertible terms, because they are not the
same things. A man may have more than one residence. He
may reside a part of the time in the city and a part in the
country, but he can never have but one domicil.”¹
§ 192. As a resume, of all the authorities upon this subject,
it may be said that at present the questions applicable to non-
resident debtors are governed by the law of domicil in all the
States, excepting New York, New Jersey, Illinois, Mississippi,
Kansas, Pennsylvania, Maryland, and Wisconsin; that the
question is apparently unsettled in Pennsylvania and New
York; that the tendency of the later cases is unnistakably
in favor of the rule allowing attachments to issue, where the
ordinary process is inefficient on account of the debtor's per-
sonal residence out of the State, without regard to his motives
or intentions.
§193. The New Jersey rule. In New Jersey, where pro-
cess may in all actions be served upon the defendant at his
dwelling-house, by leaving a copy of the summons with a
member of the family therein, the courts have adopted a rule
consonant with the peculiarities of this service. They recog-
nize the distinction between domicil and residence, but hold a
non-resident under their statute to be one who cannot be served
with a summons in the usual manner. The principle is the
Hood's Estate, 21 Pa. St. 106.
In Leonard v. Stout, 36 N. J. 870, decided in 1873, the court, on a
review of all the decisions in that State, said:
“Such residence need not be strictly the domicil where a person has
an exclusive and only actual residence, with an intention to remain. It
need not be where a man has his birthright or his citizenship, for he
may well have the rights and duties which attach to a domicil in one
place, and a residence or abode in another. It is no solecism to say
that a man has two homes. He may have one in the city, and another in
the country. He may have one in one State, and another in another
State. He may reside with his family part of the year in one dwelling-
house, and a part of the year in a different place, and when absent from
THE GROUNDS OF ATTACHMENT.
129
Non-Resident Debtors.
same as in Burrill v. Jewett. The only distinction grows out
of the manner of service.
8 194. The question of intent. There is another distinction
that may be noted, in attachment suits, between the law of res-
idence and of domicil. One does not lose the former domicil,
until a new one is acquired by actual residence, animo manendi ;
but a change of abode, sine animo revertendi, makes one imme-
diately a non-resident of the place from which he departs,'
even though he has not yet passed out of the State, if he is
in transitu to his new place of abode;' but a mere intention to
remove, without an actual removal, will not make a person a
non-resident.'
§ 195. "Resident" and "inhabitant," not synonymous terms.
The term "resident" was at one time deemed synonymous
with "inhabitant;" and Drake, in his excellent work on
' Drake on Attachments & 63; Moore v. Holt, 10 Grattan (Va.) 284;
Matter of Wrigley, 4 Wend. (N. Y.) 002.
* Clark v. Ward, 12 Grattan (Va.) 440.
8 Kugler . Shreve, 4 Dutch. 129.
one home have the intention to return to it again as an abode. To
constitute such residence within our statute it must be either an
actual present dwelling-house, or an usual or customary place of
abode. It must be his home where he then is, or to which, if he be
absent, he has the intention of returning, and where in his absence, he
is represented by some member of his family, or some one who can au-
swer for him, and communicate with him. If he be absent and have
no such representative, no effective service of a summons can be made.
He has deprived his creditor of the ordinary legal remedy, and he may
therefore resort to the extraordinary." In that case the defendant
transacted business in New York city, where he had a furnished house
and was assessed as a resident, and resided with his family, at the time
of the issuing of the attachment. He also had a farm in Morris county,
which he furnished and occupied with his family at stated periods, and
during his absence left some relative in charge of the place. He was
assessed as a non-resident in New Jersey. The court held that for the
purposes of attachment he was a resident, because service could be made
at his place in Morris county.
9
130
THE LAW OF ATTACHMENT.
Non-Resident Debtors.
attachments, has so considered it, relying upon the cases of
Roosevelt v. Kellogg (20 Johns. 208). and Matter of Wrigley
(4 Wend. 602), but the opinions in those cases upon this
point have been criticised and disaffirmed in later cases in this
State. Chief Justice Nelson, in Frost v. Brisbin (19 Wend.
13), referring to the case of Roosevelt v. Kellogg, says: “It
may be doubted if this position" (that the terms are synony-
mous) "is strictly accurate, as the latter term, 'inhabitant,'
implies a more fixed and permanent abode than the term 'resi-
dent,' and frequently imports many privileges and duties
which a mere resident could not claim or be subject to." In
a recent case in Illinois it has been adjudged that a resident of
a place is "one who dwells in that place for some continuance
of time, for business or other purposes," and must not be con-
founded with the term "inhabitant," which is more of the
nature of a domicil; and that the terms inhabitant and resi-
dent are not synonymous or convertible.¹
The principles applicable to non-residents are not, there-
fore, necessarily applicable to persons who are not inhabitants
of the State, although they are often the same.
•
§ 196. Non-residence, though temporary, must be fixed.
General rule. Strictly speaking, one who has a domicil in the
State cannot become a non-resident without he resides at some
one place beyond the limits of the State. A person traveling
for health or business cannot be said, in ordinary cases, to be a
non-resident, because he does not "reside" out of the State."
But the moment he ceases to sustain the character of a traveler,
and for purposes of education or business takes up a fixed,
though temporary, abode, he becomes, for the time being, a non-
resident in the eye of the law, and liable as such to have his
property attached.' But this rule is not arbitrary. A prolonged
absence of several years may be deemed,
be deemed, in certain cases, a non-
residence. Otherwise a party heavily indebted might defeat
¹ Board of Supervisors of Tazewell County v. Davenport, 40 Ill. 197.
• Mandel. Peet, Sims & Co., 18 Ark. 236, 6 Alabania.
'Per Feyton, J., in Alston ». Newcomer, 42 Miss. 186.
THE GROUNDS OF ATTACHMENT.
181
•
Non-Resident Debtors.
the ends of justice by pursuing his foreign travels for an
unlimited period. Neither will every fixed temporary resi
dence beyond the jurisdiction of our courts make one a non-
resident. If the time of absence is limited and brief, as, for
instance, a summer residence abroad, when the rest of the year
is spent at the resident domicil, the rule will not apply; but the
same period of foreign residence, without any intention of
returning, or with the intention of returning at some indefi-
nite future period, will bring the person within the rule, a non-
resident. The rule as to the period of actual absence necessary
to make one a non-resident, is governed, therefore, entirely by
the circumstances of each particular case, and no arbitrary
period can be laid down by the courts. The financial condition
of the debtor, his permanent interest, in the State, either by the
way of business or landed property, and any other fact tending
to show that the absence of the debtor must be brief, or other-
wise, may be alleged and proved, in forming the presumptions
of residence or non-residence, for the purpose of attachments.
197. Quasi non-residence. The New York Code of
Civil Procedure provides for an attachment on a special
ground previously unknown to the Statute, and which may be
designated as quasi non-residence. It may be considered the
non-residence of a legal resident, if by the former term we
include a person who is not at present living in the State, and
by the latter, one whose home is here, but who is temporarily
abroad. The provision is confined to the lower courts. As
applied to the City Court of New York, it may be found in
subdivision 6 of section 3169, and is as follows: "That the
defendant being an adult and a resident of that city, has been
continuously without the United States more than six months
next before the granting of the warrant, and has not made a
designation of a person upon whom to serve a summons in his
behalf, as prescribed in section 430 of the act; or a designation
so made no longer remains in force." By subdivision 2 of sec-
tion 2906, this same provision is made applicable to the Justices'
Courts of this State.
132
THE LAW OF ATTACHMENT.
Non-Resident Debtors.
§ 198. There can be no possible reason for the application
of this principle in the local courts that would not apply in
the Courts of General Jurisdiction. It does not refer to a
temporary absence from the particular locality of his residence,
so as to call for some special jurisdictional aid, but to an
absence from the State, thus bringing the case peculiarly
within the province of a State Court. Section 430 of the
Code, to which the provision refers, simply provides that a
person under such circumstances may designate a person on
whom service, equivalent to personal service, may be made.
Section 438 goes further, and states that service by publication
may be made, on the failure to designate an agent, in such
cases. What good does that do? How does the court acquire
jurisdiction? What kind of a judgment can be rendered?
Against what property can an execution thereon issue? How
can the court secure jurisdiction of the person, when there is
no personal service? or, of the property, when there is no prop.
erty in its possession !
Under the ordinary rules of the law, the judgment could
neither be in personan nor in rem. When we take away the
element of an attachment of property, in such cases, the whole
thing becomes farcical. In any event, it would be impossible
to reach anything but the tangible property of the defendant
therein. Choses in action can only be taken by attachment or
supplementary proceedings, and those proceedings are limited
to actions where the defendant has been personally served. To
my mind this is a casus omissus.
THE GROUNDS OF ATTACHMENT.
133
Absconding Debtors.
CHAPTER X.
ABSCONDING AND CONCEALED DEBTORS.
SECTION 199. Having treated of the grounds applicable to
foreign attachments, we come now to consider those in respect
to which debtors may be proceeded against by domestic attach-
ments; and herein, first, of absconding and concealed debtors.
The courts in this country seem inclined to test the requirements
of these provisions strictly, as being in derogation of the common
law.' We have attempted to show in the introductory chapter,
however, that the punishment of absconding and concealed
debtors by placing their creditors in possession of their effects,
as a process preliminary to trial, not only existed in the com-
mon law, but was borrowed from the Romans, by whom it was
perfected and practiced over two thousand years ago. It is the
first principle of nature, that the assets and debts left behind
by one fleeing from justice should be applied, without undue
formality, to the liquidation of each other. He who places his
person or property beyond the reach of civil process, for the
purpose of defrauding others, outlaws himself. The proclama-
tion of heralds or the blowing of horns are only the formal
announcement of an existing fact. He is, by his own act, an
outlaw and a rebel, and there is no principle of human justice,
no law of civil society, taken in the abstract, that will shield his
deserted effects from the immediate liquidation of his debts.
Yet, in these days of chivalry to the criminal, we seem to forget
the victim. We clothe the debtor with the robe of presumptive
innocence, and leave the creditor naked and shivering on the
threshold of Justice.
¹ See cases cited to § 8, infra.
A
134
THE LAW OF ATTACHMENT.
Ag
Absconding Debtors.
$ 200. Absconding debtors. The American statute relat-
ing to attachments was first known and designated as "The
Absconding Debtor's Act." It is now so distinguished in
Canada and many of the States. The primary object of
domestic attachments was to provide a remedy against abscond-
ing debtors. The other provisions have since been added from
time to time, as prudence or necessity dictated.
ป
$201. Similarity of the terms. In some of the States the
word “absconding" only is used. In some cases the words
employed are “absconds or conceals,” or “absconds or secretes ;”
and in other States the provisions for absconding and conceal-
ment are separately stated.' In New York, section 227 of the
old Code used the terins "a defendant, who has absconded or
concealed himself;" while section 229 reads: "Whenever it
shall appear by affidavit that the defendant . . . is
not a resident of this State, or has departed therefrom with
intent to defraud his creditors, or to avoid the service of a sum-
mons, or keeps himself concealed therein, with a like intent."
These two sections of the old Code have been substantially
copied into the attachment laws of nearly all the States, and
engrafted into the New York Code of Civil Procedure. Under
these provisions a resident may be said to have absconded, who
has departed from the State with the intent either to defraud
his creditors, or to avoid the service of summons," and this is
the exact language of the new Code.'
$202. Proof-Open removal. In order to produce evi-
dence of absconding, two things are necessary: the act and the
intent. The act of absconding necessarily involves the inten-
* The word “abscond ” includes a concealment. It means to hide,
conceal, or absent one's self clandestinely with the intent to avoid legal
process. Bennet v. Avant, 2 Sneed (Tenn.) 152; hence the second
clause of the statute could be omitted entirely, and yet preserve the
remedy intact.
Morgan v. Avery, 7 Barb. 656; Field ♥. Adreon, 7 Md. 209; Ben-
nett v. Avant, 2 Sneed (Tenn.) 152.
• Code of Civil Procedure, § 636, subd. 2.
THE GROUNDS OF ATTACHMENT.
135
Absconding Debtors.
tion to abscond, but the mere act of departure does not. In the
absence of suspicious circumstances, an open removal from the,
state, previously announced in a public manner, or accompanied
with an expressed purpose of returning, lacks the element of
intent, and is not an absconding.'
$203. Intent may be either to defraud or avoid service.-
It is not necessary that the departure from the State should be
secret, if the intent to defraud or avoid service of summons be
established. Neither is it necessary that the intent to defraud
be established, if the intent to avoid service be proved. Either
intent is sufficient."
§ 204. But the intent either to defraud or to avoid service
must be proved.' Suspicious circumstances, united with the fact
of absence, will not suffice to uphold an attachment, althongh
all the known and admitted facts warranted the plaintiff in the
belief that the departure was made for the purpose of eluding
the process of the court, provided the actual intent is wanting.*
Circumstances are only indications, not absolute proof, of
intentions.
§ 205. The circumstances connected with the departure of
the debtor, such as his declarations at the time, and imme-
diately prior thereto, as to the nature of his visit, the point of
his destination, the object he had in view, and when he expected
to return, as well as the condition of his affairs and the secret
or open manner of his departure, may be always shown for the
purpose of proving the intention to abscond, or of rebutting
such an imputation." But evidence of common reputation is
¹ Boardman v. Bickford, 2 Aikens (Vt.) 845; Fitch v. Waite, 5 Conn.
117.
* 2 Wait's Practice, 137; Morgan o. Avery, 7 Barb. 656.
Matter of Chipman, 1 Wend. 66.
* Matter of Warner, 8 Id. 424.
* Ross v. Clark, 32 Mo. 296.
Havis . Taylor, 13 Ala. 824; Pitts ». Burroughs, 6 Id. 733; Offutt
v. Edwards, 9 Rob. (La.) 90; Oliver v. Wilson, 29 Ga. 542; Burgess
. Clark, 8 Ind. 250.
136
THE LAW OF ATTACHMENT.
1
Absconding Debtors
not sufficient, standing alone, to show the true character of the
departure.'
§ 206. Indications of an intent to abscond-Insolvency,
secrecy, &c. "If the defendant," says Judge Edmonds, “was
on the verge of bankruptcy, and left the State, though openly
and publicly, and with a view of transacting business abroad,
with a view of having the explosion take place in his absence,
and of avoiding the importunity and the proceedings of his
creditors, it would seem that his case would come within the
statute. It is established that his departure was not secret, and
that he went to Europe on legitimate business, avowing an
intention to return in six weeks. Ile may not have had an inten-
tion to defrand his creditors, and therefore, have left all his
property behind him, except the 5007., which was required for
his foreign adventure. Still, he may have designed to avoid the
service of suminons on behalf of his creditors. 1 am inclined
to think that such intention is justly inferable from his embar-
rassed position; from his impaired credit; from his attempts
to borrow money so immediately on the eve of his departure
from his confessions of his inability to meet his payments as
they became duc; from his leaving behind him debts that were
past duc; from the pains he seems to have taken not to disclose
to any of his creditors his intention to go abroad, though he saw
some of them within a day or two of his departure, and after he
had taken his passage; from the tenor of his conversations
with them, which looked rather to his continuance at home
than to his absence abroad; and above all, from the fact that
within twenty-four hours after he had sailed, his confidential
clerk, whom he had left in charge of his affairs, called a meet-
ing of his creditors. It may be that this latter fact, as well as
the circumstance that his clerks, when interrogated as to his
whereabouts, gave false or cqnivocal answers, or professed
ignorance, may not be justly imputable to him. But I cannot
overlook the fact, that the clerks, though afforded the opportu-
nity on this motion, have given no explanation of either of
¹ Drake on Attachments, § 52; Pitts v. Burroughs, 6 Ala. 733.
THE GROUNDS OF ATTACHMENT.
137
Absconding Debtors.
these matters, but leave the inference to be drawn that their
behavior was in obedience to instructions, and in furtherance
of his intention to let his failure happen, and the winding-up
of his affairs occur in his absence."
§ 207. In the case of Rowles v. Hoare,' the Court
said:
"There were statements of facts in the plaintiff's
opposing affidavits that are entitled to weight; such as of
an indebtedness to operators; of demand of payment, and
refusal; and the quitting of employment by these operatives,
by reason of such refusal; of his departure the next day; of
his previous assignment to his son-in-law of his tools, imple-
ments, and personal property; of his declarations that he was
going to New York, and his departure to the West, and from
the State of his residence, leaving skins in his works requiring
immediate care; and the weight of evidence that he provided
no person to take care of them, to save them from injury and
his property from great loss. I must, therefore, hold that the
defendant has not, by the weight of testimony, established that
the attachment was improvidently issued, that it was unjustly
issued, or that it was unauthorized."
§ 208. Prolonged absence-false representations.
In Van
Alstyne v. Ervine,' decided in the New York Court of
Appeals, the question arose as to whether the plaintiff's affida-
vits were sufficient to give the county judge jurisdiction. The
witnesses concurred in stating that the debtor left his home
and place of business to go to an adjoining county, for an
alleged purpose, which would not naturally have required more
than two or three days. He had been absent about six weeks,
and nothing had been heard of him. The witnesses, who were
his clerk and his brother, had each made diligent scarch and
inquiry for him, and the latter had gone to the county where
his pretended business lay, and learned that he had gone west,
1 Morgan v. Avery, 7 Barb. 656.
61 Barb. 206.
• 11 N. Y. 331.
•
138
THE LAW OF ATTACHMENT.
Absconding Debtors.
but where or for what purpose is not stated, and could not be
ascertained. It further appeared that he was, at the time,
heavily indebted. The Court held, that the facts legally
tended to support the allegation of absconding or concealment,
with intent to hinder, delay, or defraud creditors, or to avoid
the service of a summons, and refused to vacate the attach-
ment, although it intimated that the case made out by the
plaintiff was not a very strong or conclusive one, and might
possibly be explained in an innocent sense; but fraud was the
most probable cxplanation of the facts.
$209. Compulsory absence-embezzlement. In Louisiana
an attachment was obtained against an absent defendant on the
ground that he "had departed the State, never to return."
Afterwards he did return, and resisted the attachment on that
ground. The question turned upon the intention of the debtor
at the time of his departure. To prove that it was innocent,
he showed that it was customary for him to depart for his
health at that time of the year, and remain absent during the
sickly scason. On the other hand, it was shown that previous
to his departure he had defrauded a bank of a very large sum
of money. The Court held, that the defendant's return would,
in the absence of suspicious circumstances, be presumptive evi-
dence of his intention to return, but that the consequences he
had to apprehend at the time of his departure rendered his
intention to avoid them by flight so probable that the pre-
sumption would not be rebutted by the mere circumstance of
his return.'
§ 210. Secret departure under an assumed name. In Penn-
sylvania a domestic attachment was obtained against an absent
debtor on the ground that he had departed from his abode and
remained out of the State, with design to defraud his creditors,
upon affidavit showing that before his departure he had
¹ New Orleans Canal and Banking Company ». Comly, 1 Rob. (La)
281; Reeves v. Same, 8 Id. 863. See also Simons v. Jacobs, 15 La. An,
425.
THE GROUNDS OF ATTACHMENT.
139
Absconding Debtors.
refused to be seen by his creditors; that he departed secretly
by night, and had directed letters to be sent to him in another
name. Before the first day of the next term of court, the
defendant returned, and attempted to quash the attachment, for
the reason that his declarations made just prior to his departure,
that the object of his journey was to collect debts at Baltimore
and elsewhere, and the fact of his return in pursuance there-
with, together with his own oath to that effect, rebutted any
presumptions that might arise as to the design of his depart-
ure, from the manner in which it was undertaken. But the
Court deemed the presumptions arising from existing facts
stronger than contrary declarations of a defendant made in his
own favor, and sustained the attachment.'
§ 211. "About" to abscond. But the intent to abscond is
not sufficient without it is followed by actual accomplishment.
The act and the intent must both exist, and at the same time.
To anthorize an attachment, therefore, there must be an actual
absconding, such as prevents service of process on the debtor."
An attachment cannot issue on the ground that the defendant
is "about to abscond.” In this State the Code allows the
remedy where the debtor is about to remove or dispose of his
property with a fraudulent intent, but it gives no specific right to
an attachment where he is about to abscond, without it is proved
that he is intending to carry with him his property, for the pur-
pose of defrauding his creditors.
$212. The departure must be from his usual place of abode.
Where the creditor relies upon the fact of absconding, he must
show a departure from the usual place of abode of the debtor
whom he seeks to charge. A domestic attachment will not lie,
therefore, against a stranger in disguise, who, flying from a
foreign country to avoid his creditors, temporarily conceals
himself in a house taken for that purpose, and not with a view
1 Gibson v. McLaughlin, 1 Browne, 291.
• Temple v. Cochran, 18 Mo. 116; Kingsland v. Worsham, 15 Mo.
657; Reddy. Bego, 83 Miss. 529.
• Bennett v. Avant, 2 Sneed (Tenn.) 152.
140
THE LAW OF ATTACHMENT.
Concealed Debtors.
to permanent residence, and not having contracted any debts in
the State which he could defeat by absconding.' Coming into
the State upon a temporary visit, and then returning to the
home of the debtor, or simply passing through a State, in the
absence of such a provision, is not generally held to be a depart-
ure from the State.' It is safe to assert as a general rule of law
that an attachment will not lie against a non-resident on the
ground of absconding. Ile should be proceeded against on
account of his non-residence.*
§ 213. Concealment must be to avoid "civil” process. The
Code uses the terms absconded or concealed. Concealinent was
explained in section 229 of the old Code as one who keeps
himself concealed in the State with intent to defraud his cred-
itors, or to avoid the service of summons, and this is the sub-
stance of section 636 of the new Code. It is not sufficient
to allege and prove that the defendant kept himself concealed
with the intent to avoid the service of process. It must affirm-
atively appear that the process was a civil process. Conceal-
ment to avoid criminal prosecution is not within the intent of
the statute. Chief-Justico Savage so limited the application of
the statute when the term designated was "service of process."
Under section 229 of the old Code and section 636 of the new
Code, the affidavit must now show that the intention is to avoid
the service of summons.
§ 214. It is not essential that service should be actually
evaded. The statute will be complied with if the intent is
affirmatively shown, even though no summons has been issued,
1 Thurneyssen". Vouthier, 1 Miles (Pa.) 422.
Shugart v. Orr, 5 Yerger (Tenn.) 192; Matter of Schroeder, 6
Cowen (N. Y.), 603; Matter of Fitzgerald, 3 Caines, 818. The rule is
different in Alabama and Georgia, Middlebrook v. Ames, 5 Stewart &
Porter, 158; Johnson v. Lowry, 47 Ga. 500.
• The New Code (§ 636) now limits this remedy to residents.
• Lynde. Montgomery, 15 Wend. 401; Evans v. Saul, 8 Martin, N.
8. (La.) 247; People v. O'Brien, 6 Abb.. N. S. 63, 68; but see Mayor of
N. Y. v. Genet, 4 Hun, 487,
THE GROUNDS OF ATTACHMENT.
141.
Concealed Debtors.
and therefore no attempt to make a service has been made;'
and it matters not whether the intent is to defrand the cred-
itors or to avoid service, as either will warrant the granting of
an attachment the same as in the ordinary case of an ab-
sconding.'
§ 215. Allegations of absconding and concealment may be
joined. Although there is a distinction in words between
a concealment and an absconding, there is no difference in
fact. The terms are not strictly synonymous, but the one is
included in the other. Abeconding is not always a conceal-
ment, but concealment for the purpose of defrauding creditors
or avoiding service of summons is always an absconding."
Where both of the terms are used, either separately or con
junctively, the one refers to an absconding or conccalment
within, and the other without, the State; but the line of
demarkation is not drawn so strictly as to effect the jurisdiction
of the Court; it is not a fatal defect in an affidavit, therefore,
to use the terms absconds or conceals himself, as but one real
ground of attachment is set forth, the terms being, for that
purpose, equivalent. And where it is doubtful whether a
debtor has departed from the State, or conceals himself
therein, with the intent to defraud his creditors, or avoid serv.
ice, an attachment will be granted if the creditor charge in
the disjunctive that he has done one or the other."
§ 216. Avoiding or resisting service a "concealment." It is
not necessary that the place where the debtor is ensconced shall
1 Cammann v. Tompkins, 12 Barb. 265; sub nom. Genin v.
Tompkins.
• Id.
• Fitch •. Waite, 5 Conn. 117; Bennett v. Avant, 2 Sneed, 152; and
see Oliver v. Wilson, 29 Ga. 642; 2 Wait's Practice, 187; Drake on
Attachments, § 54.
• Goss v. Gowing, 5 Richardson, 477; Conrad v. McGee, 9 Yerger,
428.
* 2 Wait's Practice, 138; Van Alstyne v. Irwine, 11 N. Y. 831. See,
also, the same principle in Morgan ». Avery, 7 Barb. 656.
142
THE LAW OF ATTACHMENT.
Concealed Debtors.
be unknown to the creditor, to constitute a "concealment."
The concealment intended by the statute is simply a personal
obstruction to the service of process. Any act which involves
the intention on the part of the debtor to delay or prevent his
creditors from enforcing their demands in the ordinary legal
modes, is either an absconding or concealment. This he may
accomplish by secreting himself upon his own promises, or by
departing secretly to a more secure spot, either in or out of the
county of his residence. Or, he may shut himself up in his
own house and defeat personal service, by bolting his doors.
The intent and effect is the same, in the latter case, as if he
were hidden past finding in the bowels of the earth, and the
law holds him equally guilty of concealment. In Connecti-
cut, though the statute contains no express provisions in rela-
tion to concealed debtors, the courts hold, that an absent and
absconding debtor is one who lives out of the State, or has
departed therefrom, or from his usual place of abode, or who
has 80 concealed himself in his house that he cannot be served
with process, with an intent unlawfully to delay or to defraud
his creditors.'
§ 217. Actual intent. But there must be an actual intent
to conceal one's self. Thus, where the place of the debtor's
temporary abode is entirely unknown to the creditor, or to his
friends and neighbors, it is not, in the absence of other insignia
of fraud, or of a real concealment in fact, an absconding or
concealment within the statute. Thus, where a debtor went
from the town of his usual residence to another town in the State,
and there worked openly at his trade for over three months
without taking any measures to conceal himself, he was held
not to be an absent or absconding debtor, within the foregoing
definition, with respect to a creditor in the town which he left
though his neighbors did not know where he was, and his
Dunn v. Salter, 1 Duv. (Ky.) 842.
See Ives v. Curtiss, 2 Root (Conn:) 133.
Ives v. Curtiss, 2 Root (Conn.) 133.
THE GROUNDS OF ATTACHMENT.
143
Concealed Debtors.
absence was a subject of conversation among them.' An
attachment against the defendant for absconding or conceal-
ment will be superseded when it appears that he left his home
to go to another place in the same State on business, and
remains absent but ten days, and that his departure was made
publicly and generally understood by his neighbors, although
other facts unexplained would warrant a different conclusion.*
The mere fact that the defendant lives out of the county
where he does his business is not concealment, within the
statute.'
§ 218. Proofs of concealment. Where the evidence showed
a demand by a creditor and a threat of suit by evening of the
same day, and that during the evening or early in the succeed-
ing morning the debtor disposed of his whole stock of goods
without taking an invoice; that next morning the debtor left,
and was absent two months without first calling to see the
plaintiff's attorney, as he had promised to do, the court held
that the evidence was sufficient to warrant the finding by the
jury of a concealment with intent to avoid the service of
process.
§ 219. The same. In matter of Faulkner, decided in the
old Supreme Court of New York, the question arose whether
such a prima facie case of absconding or concealment was
made out as would give the court jurisdiction. The defend-
ant's counsel insisted that the affidavits of the witnesses were
insufficient for that purpose, as they did not state facts and
circumstances to establish the grounds upon which the plaintiff
relied. Justice Bronson, in delivering the opinion of the court,
said: "But these witnesses did state facts and circumstances
1 Fitch . Wuite, 5 Conn. 117; see also House D. Hamilton, 43 Ill.
185; Stanton. Holmes, 4 Day (Conn.) 87; Oliver v. Wilson, 20 Geor-
gia, 642.
* Matter of Chipman, 1 Wend. (N. Y.) 60; Matter of Warner, 3
Wend. 424; Walcott v. Hendrick, 6 Texas, 406.
Boggs. Bindskoff, 23 Ill. 06.
• Young ». Nelson, 25 Ill. 565.
་
144
THE LAW OF ATTACHMENT.
Concealed Debtors.
tending to prove that Faulkner had departed from the State,
or kept concealed within it with intent, &c. They state that
they were acquainted with him; that he had been the propri-
etor of a line of stages kept at a specified place in the city; that
about six weeks before, he sold out his stages and horses sud-
denly and broke up his business, and thereafter departed from
or kept concealed in the city; and that after he sold out, his
goods were sold by his landlord for the payment of rent.
Before the sale by Faulkner they saw him frequently; but
since that time they had not seen him at all. And they add,
that it was generally understood and believed that Faulkner
was keeping out the way to avoid his creditors, and that he was
concealed within this State, or had absconded from it, for the
purpose of defrauding his creditors. Now, although the evi-
dence was far from being conclusive, still, it had a legal tend-
ency to make out a case, in all its parts, for the issuing of an
attachment. Enough was proved to call upon the officer for
the exercise of his judgment upon the weight and importance
of the evidence; and if he erred in the decision of a question
thus fairly presented, the error would not be fatal to the pro-
ceedings."
§ 220. The same. A similar issue arose in the United
States Circuit Court for the 7th Judicial Court, before Judge
Drummond. It appeared from the evidence, that the defendant
was deeply embarrassed. Creditors were calling on him daily
and pressing their claims. He had transferred his goods. He
left town suddenly without informing them where he had
gone. His clerks, and particularly his brother, who had charge
of his business, misled and attempted to deceive his creditors
as to where he was. "It appears to me," said the learned
judge, "that the facts warranted the belief that he left to avoid
the service of process, and that he returned because of the serv-
ice of attachments upon his property. If he left for that pur-
pose, requesting false information to be given of his move-
ments, he concealed himself, in my opinion, just as truly as
though he had shut himself in a cave. Upon a careful consider-
THE GROUNDS OF ATTACHMENT.
145
Concealed Debtors.
ation and examination of the evidence in the case, I have become
convinced that the attachment properly issued."'
§ 221. The length of time that the defendant is concealed
is unimportant, if the intent to defraud or evade service of proc-
ess is clear." "It is concealment to avoid service of process,
no matter whether for an honr, a day, or a week; whether
with a view to defraud creditors or merely to have time to
make a disposition, lawful or otherwise, of his property before
his creditors got at him; it is placing himself designedly so
that his creditors cannot reach him with process, which con-
stitutes concealment under the statute.”
§ 222. Absconding by proxy-Copartners. Absconding or
concealment, being a personal act, one can neither abscond or con-
ceal himself by proxy. Where one member of a firm has abscond-
ed, an attachment cannot, in consequence, issue against all of the
other members as absconding debtors. In Maine the rule has
been extended so as to prevent an attachment against the
absconding joint debtor or partner, upon a firm debt, if one or
more members of the firm reside in the State. The courts are
divided upon this point, and the subject is thoroughly discussed
under the chapter in relation to copartners. It is sufficient to
state here that the true rule is, that wherever an attachment
will lio against a partner or joint debtor, upon an individual
liability, he may be proccoded against npon his joint debts, and
an attachment will issue against his private property, and also
against the joint or partnership property, both of which the
sheriff may attach and take into manual possession."
1 North v. McDonald, 1 Bissell, 57.
* Cammann v. Tompkins, 1 Code R., N. S. 12; (8. C. aff. 12 Barb.
205) sub nom. Gennin v. Tompkins.
Young . Nelson, 25 Ill. 565.
• Leach *. Cook, 10 Vt. 289; Bryant v. Simoneau, 51 Ill. 824;. sed
contra Duncan v. Headley, 4 Bush (Ky.) 45.
Barber v. Robeson, 3 Mc. 17.
Smith v. Orser, 42 N. Y. 182; and cases cited in section
ot acq.
10
*
146
THE LAW OF ATTACHMENT.
Concealed Debtors.
: § 223. Attachment may issue against the absconding copart-
ner's interest in the firm. In the case of Bogart v. Dart,
decided by the General Term of the First Department in 1881,
the attachment directed the seizure of so much of the property
of the defendant Swezey, and of both defendants, as copart-
ners, as would satisfy the plaintiff's demand of the sum of
upward of $62,000. It was created by advances made upon
the faith of forged bills, notes, and acceptances. But while
the affidavit, in general terms, charged both the defendants
with the fraud, it appeared, by the concluding paragraph,
that it was perpetrated alone by the defendant Swezey,
and that he alone absconded.
On the question as to whether the attachment would lie
against the firin property, the court hold, that "the provisions
of the new Code, as they have been enacted, have provided for
the remedy by attachment only because of some specified de-
linquency on the part of the person or persons whose property
is to be seized. They do not, because other persons may be
connected in business with the party guilty of the misconduct,
allow their property to be seized because of his act. But they
provide for the issuing of the attachment against the property
of one or more of the defendants, who are shown to have com
mitted one of the acts, subjecting him or them to this remedy.
And it is only against the person or persons who have been
shown to have done what the statute, in this connection, has
intended to prohibit, that the attachment can properly be
issued. When it is issued, it must be against the property of
the person or persons who are shown to have done that which,
according to subdivision 2, section 636, of the Code, can only
be made the foundation of such a proceeding. In the present
case, but one of the defendants has left the State, either with
the intent to defraud his creditors or to avoid the service of
a summons upon him, and consequently he was the only por-
son against whom a case was presented, on which, by any
possibility, an attachment could be issued. What the Code
has provided, in this connection, is a remedy against the party
¹ 25 Hụn, 895.
THE GROUNDS OF ATTACHMENT.
147
Concealed Debtors.
whose misconduct has brought himself within its provisions.
They are personal in their character, and render the indi-
vidual alone liable to be so proceeded against who has been
guilty of one or more of the acts intended to be redressed
by this mode of proceeding. It has not evinced the existence
of any intent whatever to punish one person for the guilt of
another. In this respect, not only its terms, but also its spirit
require that it should be construed substantially the same as
the other provisions have been, declaratory of the causes where
parties in civil actions may be arrested. (Hathaway v. Johnson,
55 N. Y. 93; Hitchcock v. Peterson, 14 Iun, 389.)
"By the construction given to those provisions, one party
is not allowed to be arrested because of the fraud or miscon-
duct of another; and, from the terms made use of prescribing
the cases in, and the circumstances under, which attachments
may be issued, it is evident that the legislature intended that a
like policy should be observed.
"The attachment upon the affidavit presented in this case
could only lawfully issue against the property of the defendant
shown to be in fault. As to the other party, no cause for
issuing an attachment was either shown or, in any form, inti-
mated. For that reason the attachment itself should be so far
vacated as it directed the seizure of the property of the firm,
and it should be limited in its effect to the property alone of
the defendant, Swezey."
148
THE LAW OF ATTACHMENT.
Fraudulent Disposition of Property.
CHAPTER XI.
THE FRAUDULENT DISPOSITION OF PROPERTY.
SECTION 224. The property clause. The system of domes-
tic attachments, as it existed in the civil and common-law,
under the customs of London, and by enactments in this coun-
try, prior to 1830, was confined to acts relating to the person
of the defendant. The writ only issued to compel the attend-
ance of resident debtors who had absconded, or who concealed
themselves to evade the service of process. Hence the signifi-
cance of the title, " Absconding Debtors Act," applied to the
statutes of that character, in several of our States. The idea of
extending the remedy to the fraudulent disposition of the
debtor's property was first embodied in the "Stilwell Act" of
1830, in New York State. This feature of the law was not
sufficiently understood or appreciated to be recognized by the
codifiers in 1848, it being introduced as a Code amendinent
in 1853. Since then it has been adopted in this country gene-
rally, and may be said to form a part of the American System
of Attachments.
§ 225. Nature of the remedy. This remedy is twofold.
It is both punitive and preventive. It covers both the act and
the intent, being applicable whenever the debtor has formed
the design to defraud his creditors by a secret disposition of
his property, as well as where the scheme has been consummated
by the actual removal of his goods.
Section 636 of the Code of Civil Procedure refers to this
provision in the following language: "If the defendant
.. has removed or is about to remove property froin the
THE GROUNDS OF ATTACHMENT.
149
Fraudulent Disposition of Property.
State, with the intent to defrand his creditors; or has
assigned, disposed of, or secreted, or is about to assign, dis-.
pose of, or secrete his property, with the like intent."
•
{
§ 226. Meaning of the term "his property." Under the
corresponding provision of the old Code the term "his or its
property" is used, and this designation is now given in most
of the States. In Treadwell v. Lawler (15 How. Pr. 8), the
query, as to the title and the extent of property covered by the
statute, was considered. The defendant was there charged
with having fraudulently secreted his property; but the prop-
erty referred to was money that he had embezzled, or
stolen from the plaintiff. On a motion to vacate the warrant,
the defendant's counsel shrewdly contended that stolen prop-
erty did not belong to the thief, and he could not be rightly
charged with having secreted or disposed of "his property,”
within the meaning of the statute; but the court sustained the
attachment on the ground that the clause relating to the
defendant's property must be construed to mean any property,
in his possession, and to which he claimed title, although his
title was imperfect or clearly bad, as the injury to the cred-
itor, and the intent to defraud, are as clearly shown in that case
as if the defendant had a perfect title to the property. Under
the further objection, that the statute referred to all his prop-
erty, the court held, that if the defendant has secreted, or is
about to secrete, "any" single piece of his property, the'
attachment may issue and be levied upon his entire estate,
because the single act shows a readiness and an intent to extend
the offense as far as may be necessary to promote his fraudu-
lent designs. This rule is followed in Missouri' and Kansas.”.
But in Illinois, where the clause reads." is about to remove his
property from this State to the injury of such creditor," the,
courts hold that the amount removed must be relatively suffi-
cient to work an injury to the plaintiff in order to authorize an
'Taylor . Myers, 84 Mo. 81.
• Johnson v. Laughlin, 7 Kas. 859,
❤
150
THE LAW OF ATTACHMENT.
Fraudulent Disposition of Property.
attachment on the balance. Hence, if a portion was removed,
but there remained property liable to attachment to an amount
far exceeding the plaintiff's demand, the removal of the bal-
ance could not be objected to, or form a ground of attach-
ment, as it works no injury.'
§ 227. So, in Mississippi, where the statute reads: "That
he has removed, or is about to renove, himself, or his prop-
erty, ont of this State," without specifying the design of such
removal; the court held, that the object of the statute was
intended to afford the creditor a security for his debt in case
the debtor is about to remove his property out of this State, so
as to deprive the creditor of the collection of his debt in this
State. "The principle upon which the statute procceds is the
danger of loss of the debt by the removal of the defendant's
property; and this reason fails, and the remedy provided by
statute plainly does not apply, where the debtor is remov-
ing a part of his property, but does not remove, or intend to
remove, another part of it, subject to the payment of the debt,
amply sufficient to satisfy it, and accessible to the creditor's
execution, and such portion of his property remains in his pos-
session openly, subject to exccution. For when property to
such an amount, and so situated, remains in the possession of
the debtor, and is not about to be removed from the State, it
could not be justly said that the creditor's debt would be in
danger of being lost by the removal of another part of the
debtor's property from the State."
§ 228. In Tennessee, under a similar statute, an attach-
ment was sustained against the owner of a vessel, on the
ground that he was about to remove it beyond the limits
of the State. But the court based its decision entirely
upon the ground that, under the circumstances of the
case, being about to remove his boat out of the State was
¹ White v. Wilson, 10 Ill. 21; Ridgway v. Smith, 17 Id. 83.
• Montague v. Gaddis, 87 Miss. 453; see also, to the same effect, Haber
v. Nassitts, 12 Florida, 589.
THE GROUNDS OF ATTACHMENT.
151
AU
Fraudulent Disposition of Property.
equivalent to the design of a personal removal from the
State, for which an attachment would undoubtedly lie, as
the question of intent is not an element in the case; but
the court recognized the principle established in Montague
v. Gaddis, and intimated that the use of the term "about
to remove the said steamboat," instead of the statutory words
"about to remove his property," in the plaintiff's affidavit,
would, if it stood alone, be insufficient to authorize an attach-
ment; and that the affidavit should not be restricted by
designating a particular piece of property, or, in any event,
it should exclude the idea that other property might still be
left by the defendant.
§ 229. Under the New York Code of Civil Procedure term
refers to "any" property. It will be noticed that the fram-
ers of the Code of Civil Procedure have removed all words
of qualification or limitation. Thus, instead of "any of his
or its property," the word "property" only is used. The lan-
guage is sufficiently broad to work a serious impediment to
foreign commercial transactions were it not coupled with the
definitive clause "with intent to defraud his creditors." As
the law now stands, the title to or extent of the property in
question is immaterial, except as an evidence of intent. In
order to defrand creditors, it must necessarily be property
applicable to the payment or security of debts, and the
amount disposed of must be sufficient-taken in connection
with the surrrounding circumstances-either to work an actual
injury to creditors, or to indicate a design to defraud them in
the future by further transactions of a similar character.
§ 230. Turning property into cash a "disposition." In the
case of Myers v. Farrell, decided in 1872, by the Supreme
Court of Mississippi, the plaintiff, on showing that the defend-
ant had been rapidly reducing his stock by cash sales, pro-
cured an attachment under two of the provisions of the stat-
ute. 1st. That the defendant was about to remove himself
1 Runyan t. Morgan, 7 Humphreys, 210.
152
THE LAW OF ATTACHMENT.
Fraudulent Disposition of Property.
and his property out of this State, with intent to evade his
debts; and 2d. That he was, with fraudulent intent, about to
make such disposition of his property as would defeat his
creditors. One of the questions that arose in the case, was
whether turning property into money could be considered a
"disposition" of it, within the statute. The court said “We
concur in the negative response made by the court in Powell
v. Mathews (10 Mo. 49) to the argument that, as the statute
gave the writ when the debtor fraudulently conveyed, asssigned,
concealed, or disposed of his property and effects, or was
about to do so, it had no application, as was said, where the
property was turned, or about being turned, into money, with
such intent. The judges, giving life and power to the intend-
ment and reason of the law, said, that there was no difference
between hiding out of sight a thousand dollars' worth of goods,
and selling the same goods for cash, and putting the money
into the debtor's pocket, with intent to cheat."
"We
think that a debtor, whose property consists of merchandise,
has determined to remove himself and property, or the latter,
ont of this State, and after forming such plan, and as part of
it consists in converting his merchandise into cash, with the
intent not to pay debts, but postpones his removal until this
has been done, is liable to attachment under the second
ground stated in the affidavit; but if, in addition to that, he
thus diposes of his property with intent to remove out of the
State with the money, a case may be made out under the first
ground of attachment."
§ 231. The term “about to" refers to a period within a
reasonable time thereafter. In Mississippi the courts hold,
that the term "about to remove, etc.," applies to a con-
templated act to be performed within a reasonable length
of time, and that the defendant may be said to be “about
to remove his property" if he has such an intent, and is
taking steps to secure that end, although he may not expect
to carry it into effect for months." "What is the meaning,"
1 Myers v. Farrell, 47 Miss. 281.
THE GROUNDS OF ATTACHMENT.
153
Fraudulent Disposition of Property.
says Judge Simrall, in delivering the opinion in the case of
Myers v. Farrell, "of the term 'abont to remove'? ‘About’—
does that imply the next hour, or day, or month? Does the
statute convey the idea that necessarily the act must be done
within any definite space of time? Among the definitions or
senses in which the word is used, given by lexicographers,
are near to, in performance of some act,' 'concerned in,'
'engaged in,' etc. (Webster's Unabridged Dictionary). It is
an ordinary word of no artificial or technical signification, and
should receive the rendering which is given to it in common
parlance. If the debtor is engaged in the act, or near to the
performance of the act of removal; if he entertains the purpose,
and is making preparations to carry it out, then the creditor is
entitled to the writ. It would be hurtful in practice to attempt
to declare precisely what is implied in the terms about to
remove.' For experience would show that many meritorious
cases would fall within the intendment of the remedy which
might be excluded by a rule laid down in advance. As the
devices and practices of those who set about cheating and
defrauding, are almost infinite in variety and fertility, courts
should be cantions in laying down a rule of interpretation
which might be evaded, and make success in such schemes
more easy."
§ 232. In Tennessee the courts also hold, that the word
"about" must be taken in its common acceptation, as defined
by lexicographers, and is not synonymous with the term "will"
which may be employed of an event long in the future. "We
hold," says the Court, "that to authorize an attachment on the
ground that the defendant is about to fraudulently dispose of
his property-the charge in the affidavit, if not in the words
of the statute, must import that the defendant is on the eve
of such fraudulent disposition of his property-and we are of
the opinion that the charge that the defendant will dispose of
his property in order to defraud his creditors, is not sufficient
to authorize the issuance of an attachment.”
' Jackson v. Burke, 4 Heiskell (Tenn.) 610.
154
THE LAW OF ATTACHMENT.
+
Fraudulent Disposition of Property.
§ 233. In Louisiana, under a statute allowing attach-
ments where the defendant has converted, or “is about to
convert, his property with intent to defraud his creditors," an
attachment was granted upon an allegation that the defendant
has converted, etc., and "will convert his property with intent,
etc.." Upon an appeal, the counsel for the defendant con-
tended that the term "will convert" is too vague and indefi-
nite to authorize the attachment; that it refers to the indefinite
future, whereas the term of the statute refers to the immedi-
ate future. But the Court deemed it unimportant to consider
particularly the philological distinction between the terms of the
law and those of the petition; for the essence of the statute is
not that the debtor is about to convert her property into money
—for there is no wrong in that-but that she will do so, “with
the intent to place it beyond the reach of creditors." The
allegations and affidavits in this case, therefore, substantially
comply with the law and justify the attachment; but Wylie,
J., in the dissenting opinion, shows strong reason against this
rule.
§ 234. Same. The rule in the United States Courts—synony-
mous with a general intention. In the case of Haizletto v.
Lake,' decided in the United States District Court for Oregon,
on a motion to dissolve an attachment obtained upon the
ground that the defendant was about to assign or dispose
of his property with intent to delay or defraud his creditors,
it appeared that the defendant had previously assigned his
property to his creditors in Oregon, primarily for the pur-
pose of preventing the enforcement of demands held against
him by parties out of the State, and, that if sned upon foreign
claims, he would again make some disposition of his property,
to prevent their collection. The Court held, that if the
defendant intends, or it appears probable that he intends,
to dispose of his property for the purpose of delaying or
defrauding these particular plaintiffs, that is a good cause
for attachment by them; and therefore refused to dissolve
¹ 1 Deady (Oregon), 469.
THE GROUNDS OF ATTACHMENT.
155
Fraudulent Disposition of Property.
the attachment. But defendant's counsel urged that proof
of a general intent on the part of the defendant to prevent
the collection of the particular debts sued on was not suffi-
cicnt to sustain the allegation in the affidavit, that the defend-
ant is now about to dispose of his property with intent to delay
or defraud his creditors. In answer to which the Court
remarked: "This is a distinction without a difference. That
which a person intends to do, generally, it may be proper
to say he is about to do, ready to do, whenever the partic-
ular occasion for doing so occurs. The bringing of these
actions was such an occasion in these cases. If a plaintiff,
under such circunstances, must wait for an attachment until
the defendant is apprised of the commencement of the action,
and begins to carry out his general intent by disposing of
his property, he may as well not have it at all."
§ 235. A removal of property that is temporary,' or in the
usual course of business, is not within the statute in any of the
States. It neither defrauds nor prejudices the creditors, as
either the goods or its equivalent is returned to the dom-
icil of the debtor, and the delay, if any, in the enforce-
ment of claims is unavoidable. Thus, where the debtor is
about to remove a part of his property from the State for
a temporary purpose, such contemplated removal will not
subject the property to the process of attachment within
the meaning of the Kentucky statute of 1838, which provides
for that remedy where the debtor is about to remove his prop-
erty for the purpose of defrauding his creditors, as the element
of intent is clearly wanting.' So a shipment of cotton out of
the State by the usual route, for the honest purposes of trade,
by a citizen of the State, will not justify the issuance of
attachment on the ground that "he is about to remove
1
¹ Montgomery v. Tilley, 1 B. Monroe (Ky.) 155; Freidlander v. Pol-
lock, 5 Coldw. (Tenn.) 400. See §§ 242 and 243.
Stewart v. Cole, 46 Ala. 646 (1871).
* Montgomery v. Tilley, 1 B. Mon. (Ky.) 155; Freidlander v. Pol-
lock, 5 Coldw. (Tenn.) 490.
156
THE LAW OF ATTACHMENT.
*
*
Fraudulent Disposition of Property-Proof of Intent.
his property" out of the State so that the plaintiff will
probably lose his debt, or will have to sue for it in another
State,¹
§ 236. Application to vessels that ply between the ports of two
States. An attachment was granted under the provision in the
Louisiana Code of Practice allowing the writ of attachment to
issue "upon the creditor or his agent swearing that the
debtor is about to remove his property out of the State
before the debt becomes due." The affidavit of the plaintiff
set forth that the notes, which formed the basis of the action,
were given for the purchase-money of a steamboat which the
defendant was about to remove from the State. It was shown
on the part of the defendant that the boat was purchased for
the purpose of making regular trips to and from the ports of
Louisiana, that she had been constantly employed in that
capacity, and that the alleged removal was in the performance
of one of a series of customary voyages. The court held that
such being the case, an attachment should not have been
granted without affirmative allegation of a fraudulent intent,
for the reason that the statute must be construed as applying.
to property which the creditor, at the time of the creation
of the indebtedness, must have considered would remain in
the State, and therefore be a security for the enforcement
of his claim at maturity, and not to a species of property
which, from its nature and destination, must necessarily be
taken out of the State.'
§ 237. The fraudulent intent-what is sufficient proof of..
In many States the question of intent is vital to the issue, as
the disposition or removal of the property must be done with
a fraudulent intent to bring the case within the statute. In
such cases the fraud must be proven, and not inferred; but
it may be proven, like all other facts, by circumstances. It
* Stewart v. Cole, 46 Ala. 646; and see Montague v. Guddis, 87 Miss.
458; Runyan v. Morgan, 7 Humph. (Tenn.) 210.
• Russell v. Wilson, 18 La. 367.
THE GROUNDS OF ATTACHMENT.
157
Fraudulent Disposition of Property-Proof of Intent.
seldom can be proven by the admissions of the party charged
therewith, and it is equally difficult to produce, positive evi-
dence of fraud. The true rule is, that whatever circumstances,
when proven, convince the mind that the fraud charged has
been perpetrated, is all that is required. Fraud cannot be
established by circumstances that merely raise suspicions; yet,
if they are so strong as to produce conviction of the truth of
the charge, although there may remain some doubt, then
it is proved.
§ 238. Circumstances. The question, therefore, must be
determined by the court before whom the affidavit is brought
upon the strength of the allegations therein contained. Each
case must be taken upon its own merits, and be governed in its
application by the peculiar circumstances of that case, and not
by any fixed rules of law. There are, however, certain decisions
upon stated cases that may aid the pleader in determining his
rights, and the courts in enforcing them. It will be noticed
that in a great majority of the cases which have received the
construction of the courts the evidence consists of circum-
stances and incidents, each in themselves trivial and insuffi-
cient to produce conviction, but. which, when taken together,
renders the conclusion irresistible. Men, when they seek to
defraud their creditors, do not publicly announce their pur
pose; it is only by patiently gathering together the various
and disjointed facts in the case, and comparing their united
effect with that of similar adjudged cases, that any degree of
certainty is reached.
§ 239. Sales below cost. "The fact to be established,"
says Chief Justice Robinson, "is not mere inability or failure
to pay, but an unlawful disposition of property to avoid such
payment. Embarrassment owing to the pressure of creditors
¹ Boies ». Henney, 82 Ill. 130; Gray v. St. John, 35 11. 222; Bullock
•. Narrott, 49 Ill. 62. Jurisdiction is conferred if there are sufficient
circumstances shown to call for an exercise of the mind of the Judge
granting the warrant. Easton v. Malavaz, 7 Daly, 147.
158
THE LAW OF ATTACHMENT.
Fraudulent Disposition of Property-Proof of Intent.
may characterize secret, swift and wholesale disposition of
property, or other circumstances of concealment, so as to infer
an intention to defraud. But in case of a non-interference by
creditors, the amount of sales of goods in an ordinary way over
the counter to casual customers, even below cost, is very faint
evidence of an intent to defraud by such disposition of them,
or to warrant the deduction that he intend to withdraw
from the grasp of the law his property, when his creditors are in
a position to seize it. Until then, he is the owner, and entitled
to dispose of it as he thinks proper, provided he does not vio-
late any positive law.””
§ 240. Same. Reducing stock without discharging debts. In
the case of Myers v. Farrell,' decided in the Supreme Court of
Mississippi, the plaintiff established the fact that the defend-
ant, who was a general store-keeper, at Jackson, having
expressed an intention to remove, was rapidly converting his
goods into cash, which he refused to apply to the payment
of his mercantile debts. It was also shown that he had with-
drawn money several months before to defray pleasure excur-
sions of himself and family, and to pay for goods which were
shipped to a distant market. The plaintiff claimed that this
mode of business and conduct warranted the inference that
within a few weeks more his goods would be turned into
cash, and that the plaintiff, with the proceeds, would remove
from the State. Counsel, on appeal, insisted that although
the jury might have been satisfied that the defendant was
thus dealing with his goods, yet, if it took such time to
dispose of them before removal as that the removal would
not be "speedy," then there was no ground for the attach-
I
¹ O'Reilly •. Freel, 87 How. (N. Y.) 272. In this case the defend-
ants, who were heavily indebted, and having a stock of goods of about
$15,000 two weeks previous to the attachment, sold below cost, but in
the ordinary course of business, about $5,000 worth of goods during that
time. Part of the money received was paid to the creditors. The court
vacated the attachment on the ground that there was no such evidence
of hurry, secrecy and sacrifice as to warrant an intention to defraud
creditors.
* 47 Miss. 281 (Oct. 1872).
THE GROUNDS OF ATTACHMENT.
159
Fraudulent Disposition of Property-Proof of Intent.
ment. But the Court held that "if a purpose exists to
remove, and the scheme may be carried out in one, two,
three, or several weeks, or months, and if this be contemplated
with a view to evade or delay creditors, the writ may be
taken out. The purpose, like all other motives and intents,
may be inferred from the speeches, acts, and conduct of the
party. And further, the word 'about' may be so satisfied
in meaning, although the movements of the debtor may not
be characterized by 'flight,' 'speed,' or 'haste,' thus leav-
ing each case to be judged by its own peculiar circum-
stances."
§ 241. Same. Shown by defendant's statements. In the
case of Talcott v. Rosenberg,' decided in 1870, in the Court
of Common Pleas, the question turned upon the sufficiency of
the plaintiff's affidavit to prove the allegation, that the defend-
ants had disposed of, and were about disposing of, their prop-
erty with intent to defrand, &c. The affidavit set forth that
when the goods were purchased from the plaintiff, the defend-
ants stated that they had $25,000 cash capital, and that
they were doing a cash business; and yet, a few weeks
thereafter, when the plaintiff's claim had matured, they
declared that they had no money, and had not had any for
many days, except what they had borrowed, and that they
did not know whether they were solvent or not. It was
further alleged, as a fact, that within a month prior to this
time, their stock of goods had amounted to $20,000, but
that it had now suddenly become reduced to $2,000. It
also appeared that within the same space of time they had
secretly removed many thousand dollars' worth of goods from
their store, and sent the same to Trenton, New Brunswick,
Rochester, and Albany, all directed to "S. Lowenstein," a
brother of one of the defendants. The Court held that the
plaintiff did not make out a very strong case, but that the
facts set forth were sufficient to support the allegation that
the defendants had disposed and were about disposing of their
1 8 Abb. N. 8. 287.
160
THE LAW OF ATTACHMENT.
Fraudulent Disposition of Property-Proof of Intent.
property, with intent to defraud their creditors; and remarked
further: "A liberal indulgence is to be extended to these pro-
ccedings, even upon questions of jurisdiction; and althongh
the case be neither strong nor conclusive, still, if enough is set
forth in the affidavit to require of the officer the exercise of his
judgment in the matter, and the facts legally tend to support
the allegation charged in the affidavit, it will be sufficient."
§ 242. The Same. Connected with falsehood. It is not neces-
Bary
that the facts stated in the affidavit should be decisive of
a design, on the part of the debtor, to assign or dispose of his
property, or to remove any of it out of the State, with
intent to hinder, delay, or defraud creditors. It is sufficient
where uncontroverted facts or the weight of evidence legally
aim or tend to sustain that averment, where there is judicial
testimony sufficient to form a conviction or belief in the mind
of the judge that there is a fraudulent intent. Not a judicial,
but an intuitive conviction, such as one would form from
having the same facts told to him under circumstances
where he was not required to be held liable for the results
of his conclusions. The General Term of the Common
Pleas of New York County have gone to the utmost limit
in the direction of basing a necessary conclusion of fraud-
ulent design upon facts that do not legally prove the design.
The affidavits upon which the attachment was granted in a late
case showed that the defendant had a short time previously pur-
chased a stock of goods, mainly on credit, amounting to about
$1000; that he was rapidly selling the same off at about cost;
that he had no other property; that he borrowed money of sev-
cral parties, whose names were given, and, while refusing to pay
it, he was endeavoring to borrow more; that he was indebted to
numerous persons who were named, and whom he refused to
pay; and that, although he had money constantly coming in,
he retained the same and neglected and refused to pay his
men, but kept putting them off from time to time, under vari-
+
1 Upon this latter point see Van Alstyne s. Erwin, 11 N. Y. 340, 311;
and Bascom v. Smith, 81 N. Y. 593.
THE GROUNDS OF ATTACHMENT.
161
Fraudulent Disposition of Property-Proof of Intent.
ous pretexts. It further appeared, that upon the plaintiff's
demanding payment, the defendant held up a handful of bills,
and told him not to ask him for money, as he did not owe him
one cent; and at another time he said he would never pay
him; and, speaking about failing, he remarked that he would
not fail for a few hundred dollars, but when he did so
he would fail heavily, as he intended to make something.
The court held that all these facts and circumstances taken
together, and uncontroverted, furnished sufficient evidence of
fraudulent intent, to uphold the attachment, and that the jus-
tice erred in vacating it.'
But the fact that a debtor, pressed by a creditor for the
payment of a debt, promises to pay him when he has
reasonable expectation of doing so, or his statement that he
expects to realize money from sources not within his rea-
sonable expectations; or that he would turn over sufficient
lumber at wholesale prices to secure the debt, and a sub-
sequent refusal so to do, does not prove that the debtor was
about to sell, convey, or otherwise dispose of his property
with a fraudulent intent.'
§ 243. Effect of debtor's statements and implied admissions.
In the case of Rosenfield v. Howard,' the affidavit assigned
the existence of the following facts as evidence of a fraudu-
lent intent in the disposition of property: That the defendant
left the county of Chemung two months before, and went
to the province of Upper Canada, with intent to remain
there, and had taken with him some portion of his personal
property, and that he had no family and but little property;
that he was offering his property in Chemung county for
sale; and that he told the plaintiff that he would be "damned
glad if he ever got his pay" of him; that no civil process
could be served on him, because he kept out of the State;
and he refused to pay anything on the plaintiff's debt. "To
1 Cooney v. Whitfield, 41 How. (N. Y.) 6.
⚫ Parsons v. Stockbridge, 42 Ind. 121.
15 Barb. 546.
11
162
THE LAW OF ATTACHMENT.
Fraudulent Disposition of Property-Proof of Intent.
my mind," said Justice Shankland, "the above facts prove a
strong case of intent to dispose of property to defraud
creditors. At all events, there was some evidence for the
justice to act on, and the proceedings ought not to be reversed
for insufficiency of proof in this respect."
In the case of Anderson v. O'Reilly,' decided in the New
York Supreme Court, in 1869, the question turned upon
the interpretation of the plaintiff's affidavit, the substance
of which was that the defendant, who was a married woman
doing business in her own name, whenever the plaintiff's
claim was presented, put off the payment, alleging that her
husband every night took all the money which she had
received during the day and paid it to persons in the city
of New York, from whom she had bought goods. The pay-
ment to such persons was disproved by the affidavit. So,
"it stands conceded," said Justice Cardozo, in delivering the
opinion of the court, "that the defendant has allowed her
husband to take possession of all her money, and has made a
false statement of the purpose to which it was appropri-
ated. No other inference can be drawn than that such dis-
position of the defendant's money, coupled with a falsehood
as to the purpose for which he took it, was made with intent
to defraud her creditors."
In the case of Stevens v. Middleton,' decided by the Gen-
eral Term of the First Department, it appeared, from the
plaintiff's affidavit, that the action was brought to recover
rent; that the defendant had failed to pay the same when
due, and had allowed a note given for previous rent to go
to protest; that he had sold the lease and fixtures, and
stated that within three days he was to leave the State
for Connecticut, taking his property with him; that he refused
to state when or how he would pay the rent, and always
deferred payment until a future time. Upon these facts
the court sustained the attachment, stating, however, that
the case presented was a very close one, but still, it might
1 54 Barb. 620.
26 Hun, 470.'
THE GROUNDS OF ATTACHMENT.
163
Fraudulent Disposition of Property-Proof of Intent.
reasonably be inferred that as the defendant put off the
request for payment with evasive answers, and was about
to acquire a residence elsewhere, he did not intend to pay the
plaintiffs, and it was a part of his design to place his prop-
erty beyond his reach.
§ 244. Implied admissions. It is not necessary to prove
fraud by the debtor's express statements as to the performance
of acts tending to establish it. The implied admissions shown
by the failure to deny the same when such refusal is only
consistent on the theory that such denial was impossible,
would be sufficient. Thus, where the moving affidavit states
on information and belief facts within the knowledge of the
debtor, and which, if true, would bring the case within the
statute, and further showed that such facts were stated by the
affiant to the debtor, who did not deny them, but promised
to call and settle, or give security, the court held that suffi-
cient proof had been shown to authorize the warrant of
attachment.¹
§ 245. Insolvency and false representations is held not suffi-
cient, standing alone, as proof of fraudulent intent. In the case
of Ellison v. Bernstein (60 How. 145) the affidavit on which
an attachment was granted, on the ground that the defendant
"has asigned, disposed of, or secreted, or is about to assign,
dispose of, or secrete property," stated on knowledge :
1st. That the defendant was insolvent when he made his
purchase, which insolvency he fraudulently concealed with in-
tent to defraud.
2d. That defendant had been "for some years a merchant
doing a small business at Kingston and Rosendale, New York."
That defendant at the same time made other pur-
chases, on credit, of "goods of about the value of $12,000 or
$15,000," while the amount of goods he "would naturally have
required for his Fall trade was only the sum of about $3,000.”
3d. That defendant is indebted "to about the sum of
$17,000, and his assets are only about half that sum."
¹ Blake . Bernhard, 8 Hun, 397.
!
184
THE LAW OF ATTACHMENT.
Fraudulent Disposition of Property-Proof of Intent.
4th. That defendant has not paid for his Spring pur-
chases, but has notes outstanding therefor.
5th. "That he intends to dispose of his property with
intent to defraud his creditors."
6th. "That defendant has recently refused to secure claims
against him, though large discounts were offered."
7th. That defendant has admitted inability to pay his
debts as they matured, and that "he would secure or take care
of the persons to whom he claimed to owe 'confidential'
moneys, to the exclusion of other creditors."
8th. "That defendant owns no real estate, but all the
real estate of which he is possessed is in the name of
his wife."
9th. That defendant is pressed by creditors, and other
attachments have been issued against him.
On a motion to vacate the attachment, Judge West-
brook, at Chambers, held that the affidavits were insufficient.
After criticising their character on the ground that a witness
should not be allowed to testify positively where it is plain
that he can have no actual knowledge on the subject, the
learned judge holds that, assuming the insolvency of the
defendant when the purchases were made, and that the
purchases were excessive, and when made he failed to disclose
his insolvency, still, in the absence of false statements, no
fraud is proven; neither is it evidence of intent to defraud,
that the defendant refused to secure the plaintiffs, as the
law allows the failing debtor to select the recipients of
his favors, and he may lawfully prefer whomsoever he chooses
among his creditors, at the expense of the others. This
decision was subsequently affirmed at General Term. (See
uote ou page 149.)
$246. Fraudulent transfer from one partner to another is
within the statute. In the case of Hirsch v. Hutchison, the
'plaintiff's affidavit, after stating the amount of his demand
over and above all counter-claims, stated that the defend-
¹ 8 N. Y. Civ. Pro. Rep. 106.
THE GROUNDS OF ATTACHMENT.
165
Fraudulent Disposition of Property-Proof of Intent.
ants, who were partners, on the 25th day of September,
1882, were both jointly and individually insolvent, and
that being so insolvent, and indebted to the plaintiff
and others, on joint demands, the defendant Roany made
a fraudulent transfer of his interest in the firm to his
copartner and co-defendant Hutchison. On motion, upon
the papers to vacate the attachment, Judge McAdam said:
"On first impression it would seem that a transfer from
the one joint debtor to the other could not prejudice the
plaintiff in collecting his debt; but this impression is
removed by considering the legal effect of such a transfer,
which makes the one partner the sole owner of the firm's
property, and gives his individual creditors a preference
over the joint creditors of the firm, in the marshalling
of the assets (Story Eq. Jur. §§ 646-675; 2 Spence Eq.
Jur. 213; and see 4 Barb. 571; 41 id. 307; 52 N. Y. 146).”
§ 247. Secret removal. In the case of Mott v. Lawrence,'
decided at the General Term of the Common Pleas Court
of New York, the question turned upon the sufficiency of
the plaintiff's affidavit for the purpose of showing a fraudulent
intent. The attachment was applied for on the ground that
the defendant was about removing all his property from
the county with the intent of defrauding the plaintiff, who
was one of his creditors; and the only facts sworn to in
the plaintiff's affidavit were that the defendant closed up
his place of business on the 21st of October, 1858, and
immediately commenced packing up his goods, and continued
packing them up until midnight, ready to be removed; that
his store was closed on the morning of the following day,
before the warrant issued, and that on the preceding day,
the 20th, he removed his family without informing the plaint-
iff or his family, who resided in the same building, over
the store. The court held that the facts contained in the
affidavit do not show that the defendant was about to remove
19 Abb. Pr. 196; but see Schoonmaker v. Spencer, 54 N. Y. 706,
}_infra.
166
THE LAW OF ATTACHMENT.
Fraudulent Disposition of Property-Proof of Intent.
his property from the county with intent to defraud his cred-
itors. This case goes to the extreme limit in this direction, and
is sustained on the presumption against fraud; non constat that
the defendant was removing for business purposes to another
store in the same city.
"It
In the case of Bryant v. Simoneau,' which arose in
Illinois in 1869, it appeared that Bushnell, a partner of one
the defendants, had, a short time previous to the commence-
ment of the suit, absconded; that the firm had been making
an effort to sell their entire stock of goods; that a short
time before the suit was commenced, and on the night before
Bushnell left, he loaded goods from the store marked "house-
hold goods," which were taken away in a wagon, and that the
front door and blinds were closed when they were taken.
is clear," said the court, "that these goods, taken from the rear
of the store at night, and sent from a point where there was a
station, beyond another station to Gridley, at 3 o'clock at
night in a rain storm, on bad roads, to be shipped by the
same railroad, were fraudulently concealed. If the purpose
was fair and honest, why this clandestine concealment and
secret course, seeking a stormy night, when but few if any per-
sons would be abroad? The evident purpose of those engaged
in this transaction was to elude the vigilance of creditors."
The court held, further, that as there was nothing in the case
to show that Bryant, the remaining partner, was unaware of
the act of his associate, or that he used any effort to prevent
it, the jury were warranted in believing that it was with his
assent; and if so, both partners were guilty of removing their
goods with a fraudulent intent, and therefore both liable to
attachment.
§ 248. A general assignment, to warrant an attachment,
must be fraudulent in fact. An assignment for the benefit of
creditors, according to the terms of an express statute, cannot be
the ground of an attachment although it may have been done
for the purpose of delaying the rights of creditors, such act
1 51 l. 824-
THE GROUNDS OF ATTACHMENT.
167
་
Fraudulent Disposition of Property-Proof of Intent.
being legalized by statute; but an attachment may issue in
such a case if it be presumptively shown that the assign-
ment is fraudulent, although it may, on its face, be valid.'
But fraudulent transactions prior to the making of an assign-
ment will not justify an attachment against the property
of the debtor in the hands of the assignee where the assign-
ment itself is free from the implication of fraud.' But
were the assignor a member of a partnerhip firm, a direction
to the assignee to pay the individual debts of the assignor out
of the proceeds of the assigned property, to the exclusion
of the judgment creditors of the firm, would render the
assignment fraudulent as to such creditors.' And an assign-
ment may be fraudulent and void on its face on account
of "hindering or delaying creditors," within the provisions
of the Revised Statutes, and yet not be such a fraudulent dis-
position or assignment of property as to entitle the creditors
to an attachment under the Code, which requires the fraud to
be actual or moral.' And an attachment is never authorized
on the sole ground that a general assignment by the debt-
ors contains provision rendering it technically invalid. The
incidental delay attending an assignment which is voidable
on account of a provision therein permitting the assignee
to sell goods on credit, and compromise the debts of the
assignor, but which was, in fact, executed in good faith, is
no indication of an intent to hinder, delay, and defraud
creditors within the meaning of the statute.*
}
§ 249. Threats of assignments—when not within the statute.
The threats of a debtor for the purposes of attachments, are
always taken as prima facie evidence of an intention to per-
1 Skinner v. Oettinger. 14 Abb. Pr. 109.
• Belmont v. Lane, 22 How. (N. Y.) 865.
Heye o. Bolles, 33 How. 266; S. C., 2 Daly, 231; Wait's Practice 139.
♦ Dickinson v. Benham, 10 Abb. 390; S. C., 19 How. 410; aff.
20 Id. 343, 12 Abb. 158; Rigney v. Tallmadge, 17 How. 556; Wilson
v. Britton, 6 Abb. 97; S. C., 26 Barb. 562.
• Miliken v. Dart, 26 Hun, 24; Tim v. Smith, 4 Law Bull. 54.
168
THE LAW OF ATTACHMENT.
Fraudulent Disposition of Property-Proof of Intent.
form the acts specified therein. A threatened removal, assign-
ment, disposition, or secretion of property for the purpose
of
defrauding creditors, is almost in the very terms of the statute,
and certainly within its spirit and meaning. But the threat
is unavailing to the creditor unless the act contemplated
is in itself within the meaning of the statute, or other evi-
dence is shown to bring it within its terms. Thus, where
the statute provides for an assignment for the benefit of
creditors, the making of such an assignment, or the threat of
making it, is lawful; and although the act may involve a
delay on the part of the creditors, and may be entered into
for that purpose, the courts will uphold it.' Thus, in the
case of Wilson v. Britton, it appeared by affidavits on the
part of the plaintiff, that the defendant, while attempting
a compromise, told him that if he would not accept a specified
portion of his demand, he would go home and make an assign-
ment of his property, and the creditors would not get anything;
that he would place his property out of his hands sooner than
pay him more than 33 1-3 per cent. of the amount of their debt.
Upon this state of facts the court said: “The defendant prob-
ably meant, by the emphatic representation of the course
which he intended to pursue, to induce the plaintiff and
his other creditors to compromise their claims, and to save
him the necessity of making an assignment. But, however
strenuously he might have urged this upon their attention, it
amounted to nothing more than that he was determined, if they
did not compromise, to make an assignment. This was the
whole substance of it, and we cannot pronounce this to be a
threat to make a fraudulent disposition of his property unless
we are prepared to stigmatize that as fraudulent which the law
expressly sanctions."
The question again came up in a late case decided in the
General Term of the First Department.' Here it appeared
that the defendant called on the plaintiffs, to effect a compro-
¹ Wilson v. Britton, 6 Abb. 97; 8. C., 26 Barb. 562; Dickinson v.
Benham, 10 Abb. 890; S. C., 10 How. 410; aff. 20 Id. 843; 13 Abb. 158.
• Evans v. Warner, 21 Hun, 574.
THE GROUNDS OF ATTACHMENT.
169
{
Fraudulent Disposition of Property-Proof of Intent.
mise of their claim against him, submitting an offer of thirty
per cent. of the amount in full, and stated that unless they
would accept the same he would make a preferential assign-
ment in favor of confidential creditors to the extent of $10,000,
and plaintiffs would get much less than the amount offered.
The court held that the affidavit did not furnish a particle of
evidence upon which the charge of fraud could be predicated.
There was no threat to make a fraudulent assignment, nor, con-
sequently, to cheat and defraud. The statement was simply
an opinion as to the natural and probable consequence of a
legitimate act, put forward to induce the plaintiffs to compro-
mise.
$250. What threats are within the statute. But where the
threat to assign property is coupled with other threats or acts
showing a manifest intention to defraud a portion of the cred-
itors, an attachment may issue thereon.' Thus, where a debtor
refused to pay a certain debt, and on being threatened with
suit said that he "would turn over all his property, and that
the creditor would not get a cent," the court held that this
threat evidenced an intention to dispose of his property so as
to baffle the creditor in the speedy collection of his debt, and
would therefore, standing alone, afford sufficient grounds for
an attachment. So, also, where it appeared as a fact that at
the time of making the threat of an assignment the debtor's
assets were more than sufficient to pay all the other claims
against him, the court held that the threatened assignment
must have been intended to be fraudulent, or an instrument
of fraud, and would therefore sustain an attachment."
In the case of Anthony v. Stype' it appeared from the plain-
tiff's affidavits that the defendant was a merchant at Gouver-
neur, N. Y., and in an insolvent condition; that he stated to
the agent of the plaintiff, when he called on him for payment,
I Wait's Practice, 140.
• Livermore v. Rhodes, 27 How. 506; 8. C., 8 Robt. 626.
• Gasherie v. Apple, 14 Abb. 64.
4
19 Hun, 265.
170
THE LAW OF ATTACHMENT.
Fraudulent Disposition of Property-Proof of Intent.
that he could not pay all his debts in full; that he was willing
to turn out his goods to his creditors if they wonld get together
and take them pro rata on their several accounts, and discharge
him from further liability; that he asserted that if sued he
would make an assignment with preferences, and would leave
out those suing so that they should get nothing on their claims.
It was further shown that notwithstanding his admitted insol-
vency he kept his store open, continued to dispose of goods,
and appropriated the avails to other purposes than the payment
of his debts, refusing to pay anything, either in goods or in
money, to his creditors, and declaring that he would pay them
nothing unless they all agreed to take his goods and discharge
their claims, thereby deterring his creditors from suing him
on the penalty of losing their claims.
Upon these facts the General Term refused to vacate the
attachment, on the ground that there was abundant proof of
an attempt to make a fraudulent disposition of his property.
Indeed, his disposition of his property daily, appropriating the
avails of sales otherwise than to the payment of his debts, was
a fraud upon his creditors. He was irrevocably insolvent, yet
he continued to dispose of his property refusing to apply the
avails to the use of his creditors, and threatening them with
the entire loss of their claims in case they should exercise their
legal right to obtain their pay. Being insolvent, his creditors
had a right to the immediate application of his property in
satisfaction of their claims. He refused this application, ex-
cept as it was to be accompanied with unconscionable terms,
and threatened an unequal distribution, to be based on an un-
fair discrimination. A creditor had a right to sue him, and
should he do so it would give no just or honest cause for plac-
ing him where he would lose his entire claim.
The court quotes approvingly the following language of the
opinion in Gashcrie v. Apple: "The law allows a debtor to
assign his property to pay his debts, and even to make prefer-
ences, but compels him to make his selections without any con-
1 14 Abb. 64.
THE GROUNDS OF ATTACHMENT.
171
Fraudulent Disposition of Property-Proof of Intent.
ditions for personal gains to himself; thus he cannot, by an
assignment, hold out a hope of an extra share of his assets, or
a fear of loss of any participation therein, as a means to induce
a creditor to abandon all, or any part, of his claim, or to forbear
pending his legal remedies therefor."
§ 251. General Principles. In concluding this subject, it may
be well to state, in a concise form, the general principles running
through and governing the application of the several grounds
of attachments, and the evidence necessary to bring a debtor
within the statute.'
¹ In the case of Schoonmaker v. Spencer (54 N. Y. 366), argued before
the Court of Appeals, the proof requisite to sustain an attachment was
fully discussed and settled. As the court overruled the General Term
decision, I append to its own opinion the strong negative views of Judge
Johnson.
“REYNOLDS, C.-These cases were heard together as one cause, as
there is no substantial difference between them; and they are in brief
this: Suits by attachment were commenced against the defendant before
a justice of the peace in Ulster county upon the ground that he had
departed from the county of Ulster, where he last resided, and from the
State of New York, to defraud his creditors, and the question is whether
the affidavits upon which the attachments were issued gave the justice
jurisdiction. Judgments were given for the plaintiff by the justice
which were reversed by the County Court of Ulster county. Upon ap-
peal to the Supreme Court the judgment of the County Court was
affirmed, and upon leave duly granted we have the case before us for
final decision.
"The affidavits upon which the attachment in the case of Schoon-
maker was issued, sworn to August 3d, 1863, sufficiently stated that the
defendant was at the time indebted to his firm upon contract, in the sum
of $142.50, and thereupon he applied for an attachment on the ground
that Spencer had departed from the county of Ulster, where he last
resided, and from the State of New York, with intent to defraud his
creditors. It is then stated that on the 17th of June, 1863, Spencer
purchased the goods of the plaintiffs, to the amount of $142.50, on a
credit of thirty days, and upon the false representation that he was in
the habit of purchasing for cash only, and that his stock in business was
paid for. It is further sworn that soon after this purchase, and be-
fore the thirty days' credit expired, Spencer departed, and had not since
returned. That his stock in his store or place of business was running
172
THE LAW OF ATTACHMENT.
•
Fraudulent Disposition of Property-Proof of Intent.
§ 252. In respect to proof, the grounds of attachments may be
divided into two classes. First, those based solely on the ex-
Second, those based upon the union
istence of certain facts.
down and disappearing, and that so far as the plaintiff Schoonmaker
could learn from other creditors, it was all purchased on credit, and not
paid for; and it is further added that the agent of Spencer refused to do
anything toward paying or securing the plaintiff's debt, and they believe
that the said Spencer departed with the intent to defraud his creditors,
and that Schoonmaker & Co. would be in danger of losing their debt
unless an attachment issued.
"In the case of Derrenbacker, the affidavit showed a demand of $78.80
or more, and that the attachment was applied for on the same ground
as in the case of Schoonmaker. It is added also, that the goods were
purchased on the 12th of June, 1863, to be paid for on the first of July
then next. It is then averred, that Spencer then and there falsely repre-
sented that he was in the habit of purchasing his goods for cash, and
that his stock was fully paid for. That at the time Spencer purchased
other merchandise of different persons on credit, and on like representa-
tions, and was at the time indebted to more than the value of his prop-
erty. It was further said in the affidavit of Stephen, in the suit last
mentioned, that in the preceding month of June, Spencer left the county
on pretense of a few days' absence and had not returned when, on the
fourth of August, the affidavit was made. It is then further added that
the deponent believed that Spencer continued absent with an intent to
defraud. It is to be also said that the defendant did not appear in the
Justice's Court, and the judgment of that court in favor of the plaintiff
has been reversed for want of jurisdiction, and that is the question we
are now called upon to consider.
"In order to defeat the jurisdictionof the justice, it must be made to
appear that there is a total want of evidence upon some essential point.
The creditor is not required to furnish conclusive evidence of the facts
relied on, but it is sufficient if the proof had a legal tendency to make
out in all its parts a case for the issuing of an attachment, and as the
question is one of jurisdiction, I am not able to see why any different
rule applies, whether it arises in a direct or collateral proceeding. The
dicta to the contrary appear to me groundless. If the facts and circum-
stances disclosed fairly called upon the magistrate for an exercise of his
judgment upon the weight of the evidence, even if he err, the proceed-
ings will not be void for want of jurisdiction, no matter in what form
the question is presented. (Matter of Faulkner, 4 Hill, 598; Van Alstyne
Erwine, Sheriff, 11 N. Y. 881.) This rule of construction does not
appear to have been seriously questioned for thirty years, and has been
THE GROUNDS OF ATTACHMENT.
178
Fraudulent Disposition of Property-Proof of Intent.
of facts and intentions. This distinction exists in every State,
but the classification is not the same in the several States. In
New York non-residents and foreign corporations make up
reaffirmed and approved in very many adjudged cases. It has also been
the uniform practice of the courts in reviewing the proceedings had be-
fore justices of the peace, to regard them with marked indulgence and
liberality in the furtherance of the ends of justice, and, if possible,
sustain them by every reasonable and warrantable intendment. It ap-
pears to me that the Supreme Court applied a very different rule to the
case before us, and for that, among other reasons, I am not able to con-
cur in the judgment pronounced. It is supposed that the affidavit upon
which the attachment issued in the case of Derrenbacker is somewhat
feebler than that in the case of Schoonmaker, but I see no substantial
difference, and, in my opinion, both are sufficient to sustain the proceed-
ings of the justice. There was no question in either case in respect to
the fact of the existence of the debt. In the one case it was contracted
on the 12th of June, 1863, to be paid on the 1st of July following, and
in the other, on the 17th of June, upon a credit of thirty days. The
application was made in each case on the following 4th of August, upon
the ground that Spencer had departed from the county of Ulster, where
he last resided, and from the State of New York, with intent to defraud his
creditors. The affidavit of Schoonmaker states positively that Spencer
purchased the goods 'on the false representations that he was in the
habit of purchasing for cash only, and that his stock in business was
paid for.' Here, certainly, is proof that the goods were obtained upon
false representations. It is further added in the affidavit 'that very
soon after such purchase, and long before said thirty days expired, he
departed as aforesaid and has not since returned; that the stock in his
store or place of business is running down and disappearing.' It is then
added that the stock of Spencer, so far as can be learned from his other
creditors, was all purchased on credit and not paid for, and it is further
positively averred 'that the agent of the said Spencer refuses to sell or
turn out any of said stock toward the payment of the demand of H.
Schoonmaker & Co., and that the stock of said Spencer on hand is in-
sufficient to pay his indebtedness,' and then follows the belief of the de-
ponent that the departure was with the intent to defraud.
"The learned judge who delivered the opinion in the Supreme Court
could discover nothing in the affidavit inconsistent with the departure
of the defendant with an honest intent. It is said, for aught appearing
in the affidavit, he may have gone off openly, and was detained by ill-
ness, and it seems to have been assumed that a creditor applying for an
attachment under such circumstances must clearly negative all suspicion
*
174
THE LAW OF ATTACHMENT.
Fraudulent Disposition of Property-Proof of Intent.
the first class, and the other grounds the second class. In
those States where the terms residence and domicil are syn-
onyinous, non-residents fall into the second class, as that rela-
of honesty. This is not the rule, and the assumption has neither reason
nor authority to support it. The defendant having contracted debts
upon false representations, departs from his residence and place of busi-
ness, in the county of Ulster, and from the State, and is absent for about
six weeks, without any explanation. In the meantime a clerk disposes
of the stock in trade; refuses to apply anything upon overdue demands,
and the defendant, by the Supreme Court, is supposed without any proof,
to be still on his travels for pleasure or detained by serious affliction.
If the facts alleged are not some evidence of departure with a fraudu-
lent intent it will, in my judgment, be difficult to say what evidence
will be sufficient for that purpose. It appears to me that the rule adopted
by the Supreme Court is precisely the reverse of what the law approves.
Everything is assumed in favor of the honesty of the fugitive debtor and
nothing to be taken for granted in favor of the unhappy creditor. The
learned judge says that every fact stated in the affidavits may be true, and
yet the departure of the defendant may have been honest, and his failure
to return caused by failing health or serious illness. In applications for
attachments against the property of concealed absconding debtors under
2 Revised Statutes (3, § 4; id. 13, § 62), it is required that the applica-
tion of the creditors shall be supported by the affidavits of two disinter-
ested witnesses, who verify and support, by facts and circumstances, the
grounds of the application. Yet it was held by the Court of Appeals,
that it need not be affirmatively proved that the witnesses thus relied on
were, in fact, disinterested. That would be assumed until the contrary
was shown. (Van Alstyne v. Erwine, Sheriff, 11 N. Y. 331.) And I
do not see that in this case it is to be assumed that Spencer's departure
was with an honest intent, or his continued absence the result of sick-
ness, against facts going strongly to show that he was insolvent, con-
tracting debts upon false representations, and departed from his resi-
dence without notice, and remains absent without any explanation.
"It appears to me that the Supreme Court gave undue prominence to
the fact that there was no positive averment in the affidavit of Spencer's
insolvency. Some facts were certainly stated that at least might tend
to move the judicial mind in that direction. The learned judge most
truly says, that Spencer may have been abundantly solvent, and yet his
stock on hand insufficient to pay his debts, as it does not disclose the
debts due, or money or other property owned by the departing debtor.
But the question really is, whether, when all the visible means and
resources of a departing debtor appear to be insufficient to discharge his
THE GROUNDS OF ATTACHMENT.
175
Fraudulent Disposition of Property-Proof of Intent.
tion is a question of both act and intent. The first class, and
the questions of fact embodied in the second class, are easily
understood and proved. But the questions of intent are not
obligations, the courts are to assume that he had some invisible means of
paying his debts. I think not. No court is required to worry itself to
find excuses for a fugitive from debt. And it may be suggested that the
question of insolvency, although of great importance, is not controlling.
If a perfectly solvent man departs the State with the intent to defraud,
his property may be attached.
"Another fact seems to have been relied upon, and that is, that the
affidavit does not disclose why the clerk or agent of Spencer refused to
apply his property in payment of his debts. This was not required.
The fact was that the refusal was made, and with other facts proven in
the case, there was some evidence to show that Spencer had some prej-
udice against discharging his pecuniary obligations.
"As has been said, it was assumed that the affidavit in the case of
Derrenbacker is the stronger one, or, in the language of the learned
judge, that he had 'sworn a little stronger,' although, as he says, it
was apparent that he knew no more than the defendant in the other
The printer has probably substituted 'defendant' for 'depo-
nent,' and, I think, the Supreme Court, in deciding the case, invented
the rule of legal presumption.
case.'
"As I am content to rest my judgment upon the weaker affidavit,
without further argument, it is my opinion that the judgment of the
Supreme Court and the Ulster Connty Court should be reversed, and
that of the justice be affirmed with costs."
"JOHNSON, C. (dissenting).-The Revised Statutes give an attach-
ment to be issued by a justice of the peace, whenever it shall satisfac-
torily appear to the justice that a debtor has departed or is about to de-
part from the county, where he last resided, with intent to defraud his
creditors, or to avoid the service of any civil process, or that such debtor
keeps himself concealed with like intent. (2 R. S. 230, § 26.)
"By section 28 it was required that the application should be in writ-
ing, and should be accompanied by the affidavit of the creditor or his
agent, in which should be specified the 'sum claimed' and 'the ground
upon which the application was founded.' It was further required that
the facts and circumstances to establish such grounds should also be veri-
fied by the affidavits of two disinterested witnesses. This provision was
modified by section 35 of chapter 800 of the Laws of 1831, by which it
was enacted that, before an attachment should issue, the defendant
should, by his own affidavit, or that of some other person or persons,
prove to the satisfaction of the justice the facts and circumstances to
176
THE LAW OF ATTACHMENT.
Fraudulent Disposition of Property-Proof of Intent.
so simple in solution and application. I shall therefore re-state
the general principles contained in this and the preceding
chapter, as the proof required by one clause of the statute will
often apply as well to the others.
entitle him to the same, and that the requirement of any other or differ-
ent proof by the preceding statute should be repealed. The relaxation
introduced by this amendment was, that the two disinterested witnesses
were dispensed with, and the plaintiff or applicant could, by his own
affidavit, make the requisite proof. The same facts and circumstances
were still to be proved. The settled construction of the requirements
of the statute is, that when the decision of the justice is directly under
review, it must appear that the proof adduced was such as judicially to
satisfy him of the requisite facts, and that the justice has no right to be
satisfied unless upon legal proof of facts and circumstances. (Smith v.
Luce, 14 Wend. 237.)
"That a strict compliance with the statute is essential to the protection
of the rights of persons proceeded against by attachment is obvious,
from the fact that the proceeding before the justice is ex parte, and of
course there is no opportunity for cross-examination, nor for the intro-
duction of witnesses to overthrow the case of the applicant. He can
make proof himself by his own affidavit, and he has the right to the
compulsory attendance and examination of any other person. Courts,
therefore, are only acting in the spirit of the statute, when they require,
upon the direct review of such proceeding, satisfactory proof and not
mere surmise nor ground of suspicion of acts on the part of the debtor,
subjecting him to this summary and peremptory process. It is their duty
to see to it that there is satisfactory proof to support the proceeding.
"When the question has arisen collaterally, a laxer rule has been held,
the jurisdiction of the justice being sustained when there was proof
tending to establish the requisite facts, though unsatisfactory in its
weight. (Van Alstyne . Erwine, 11 N. Y. 831; Skinnion v. Kelley, 18
N. Y. 355.) Taking all the allegations in both the affidavits as appli-
cable to each case, they do not, in my opinion, amount to a statement of
such facts and circumstances as sustain by proof the decision of the jus-
tice. One swears that another has departed the State with intent to
defraud creditors. This is not proof satisfactory unless the ground be
disclosed by which the witness assumes to speak of the party's intent to
defraud. If he told him so, that should be stated, and the grounds of
bis inference, whatever they may be, should be brought to the light to
enable the justice to judge of the intent. A man is sometimes allowed
to prove his own intent, that being within his own breast, but to make
proof of another's intent by direct testimony that he entertained it is
THE GROUNDS 177
GROUNDS
OF ATTACHMENT.
Fraudulent Disposition of Property-Proof of Intent.
$253. FIRST. Extent of Proof To give a Justice of the Peace
jurisdiction, or warrant a judge in granting the order, it is not
going beyond the limit of human knowledge. The only other facts
stated are that the debtor purchased a small bill of goods from each of
the plaintiffs, on a fixed and short credit; that when he purchased he
said he was in the habit of purchasing for cash, and that his stock in
business was paid for; that he went away in June, before the credit ex-
pired, and had not paid the bills nor returned up to the fourth of August.
That, at the time of this purchase, the debtor purchased other merchan-
dise of different persons on credit, and on the like representations; that
the stock in his store was running down and disappearing, and was pur-
chased, as the deponent learned, from other creditors, by the debtor on
credit, and was not paid for; that Spencer's agent refused to sell or turn
out any of the goods to pay the demands of Schoonmaker & Co., and
that Spencer was largely indebted to different persons to more than the
value of his property in the county. This omitting the epithet false,
by which Spencer's alleged representation was characterized, and omit-
ting the statement that the applicants verily believed him absent with a
fraudulent intent, is the whole so-called proof. There is no pretense of
any endeavor to know where Spencer was, or any alleged reason for his
absence. There was his clerk or agent who could have been examined,
and might probably have given a satisfactory explanation. The purchases
from different persons, on representations of some sort, are left to rest
on hearsay, as well as what representations he in fact made to such per-
sons, if any. The creditors from whom the affiants learned facts deposed
to are not called. His large indebtedness beyond the value of his pro-
perty in the county, is obviously hearsay and unsupported by any defi-
nite statements. Take the statement that his stock was running down
and disappearing, it is entirely consistent with daily sales and realiza-
tion in money by the clerk or his employer. That his clerk would not
turn out goods in payment may have been from lack of authority and
absence of instructions from the debtor. The whole together, hearsay
aud all, amounts to no more than a case of suspicion. It might possi-
bly suffice, on a collateral inquiry, to make out jurisdiction and save an
officer from liability as a trespasser, but on a direct review it ought to
be pronounced unsatisfactory as proof of facts and circumstances to
sustain the process.
"The judgment of the Supreme Court ought to be affirmed."
"All concur with Reynolds, C., for reversal, except Johnson, C.,
dissenting."
"Judgment of General Term and of County Court reversed and judg-
ment of justice affirmed. ”
A
12
178
THE LAW OF ATTACHMENT.
Disposition of Property-General Rules.
necessary to furnish conclusive evidence of fraud or to negative
every possibility of innocence. It is sufficient if the facts dis-
closed have a legal tendency to prove the charge, and are strong
enough to create a reasonable conviction of fraud. And where
the attachment is granted it will be upheld if there was any
legal testimony to move the judicial mind in the direction of
the conclusions thus formed.
§ 254. SECOND. Mode of Proof-Admissions. Fraudulent in-
tent is proved either by admissions or by circumstances. The
declarations of the debtor form the strongest proof of the ex-
istence of a confessed fraud.' Admissions of an existing intent
or threats of a future act are conclusive evidence against the
party making them.
§ 255. THIRD. Mode of Proof-Circumstances. If the cred-
itor cannot prove the intent of the debtor by his own threats
or confessions, he must resort to circumstantial evidence.
This may be done by a combination of indications, though
neither of which, standing alone, would prove the malicious
design.
§ 256. FOURTHI. The indications of a design to hinder, delay,
or defraud creditors are:
(a) Insolvency. This is a strong, but not controlling circum-
stance. It forms the groundwork or foundation upon which
all the other indications rest. The pressure of creditors; the
inherent desire to save something from a shattered fortune for
future support; the frenzied condition of a mind borne down
by care or oppressed with shame-all tend to the performance
of acts that the case and comfort of a prosperous life would
never suggest. Hence insolvency often becomes not only the
basis but the moving power in fraudulent designs against cred-
itors.
(b) Secrecy. This is one of the strongest indices of fraud,
and will apply to the various grounds of attachment. Where
one's intentions are open and fair, his acts should not be secrot
THE GROUNDS OF ATTACHMENT.
179
Disposition of Property-General Rules.
and covered. Acts performed in the dead of the night, which
ordinarily are transacted in open day may well be charged
with a covert and malicious design. The courts, therefore,
scrutinize the secret acts of a debtor.
(c) Extraordinary and unusual haste. Where this applies
to the person, it takes the form of flight. When it refers to
property, it is designated by a wholesale disposition of prop-
erty, either by forced sales or shipment from the State in
unusual and unwarranted quantities. This circumstance, con-
nected with either secrecy or insolvency, creates the highest
presumption of fraud.
(d) Falsehoods. The courts give great weight to this indi-
cation. False representations are not compatible with honor-
able motives, and the cases often turn upon the existence of
this badge of fraud. It is not in itself conclusive proof, but
nsnally produces delay in the enforcement of legal rights and
brings the case within the statute.
(e) Fraud or deceit in one of a series or connected trans-
actions may be shown not only for the purpose of rebutting
the presumption of innocence, but as an indication of bad faith
in all the coincident actions in which fraud is alleged as a basis
of the attachment.
(f) The character and previous acts of insolvency of the
defendant may also be shown as evidence of intent where
the character of the defendant in relation to commercial
transactions is notorious and bad; as, for instance, where he
has often taken the benefit of bankruptcy or insolvency acts,
or been discharged from his liabilities by assignments and com-
promises with creditors, under circumstances, in either case,
that were suspicious or fraudulent. Proof of such acts is not
only material to the question of intent generally, but may
amount to presumptive evidence that alleged acts are accom-
panied with a design on the part of the debtor to defraud his
creditors.
A
180
THE LAW OF ATTACHMENT.
Disposition of Property-General Rules.
We have hereinafter considered at length the question of
fraudulent transfers so far as they relate to the title to the
property transferred.' The same principles will apply here.
Whenever any instrument which purports to convey or to en-
cumber property is void, as to attaching creditors, the right to
procure a warrant of attachment will arise for a fraudulent
disposition of property. The facts necessary to be shown to
raise an implication of fraud is also further considered in chap-
ter XXIII. relating to the affidavits to procure an attachment.
¹ Chap. XVIII.
PARTIES TO THE ACTION.
181
154%
The Plaintiff-Non-Residents.
CHAPTER XII.
PARTIES TO THE ACTION.—THE PLAINTIFF.
SECTION 257. The General Rule. It may be stated as a
general rule that by complying with the terms of the statute
any person who may maintain an action arising on contract
may, in a proper case, secure an attachment against the prop-
erty of the defendant therein.
§ 258. Non-Residents. In most of the States, and in this
State, under the Revised Statutes in force until the adoption of
the New Code, an attachment would only issue against a non-
resident where he was "indebted to a creditor residing within
this State," although upon a contract made elsewhere; and as
amended in 1845, a non-resident plaintiff might obtain an at-
tachment if the demand arose upon a contract made and exe-
cuted, or upon a judgment rendered, within this State, or upon
a judgment or decree rendered elsewhere upon a contract made
within this State."
§ 259. Extent of the Rule under the R. S.
This partial
disability in the case of non-residents under the Revised Stat-
utes only applied to the person commencing the proceeding.
A non-resident creditor might in all cases prove his claim be-
fore the trustees, and take his distributive proportion of the
fruits of the attachment. Wherever the statute requires that
the creditor in an attachment suit shall reside within the
1 R. S. 3, § 1, subd. 2.
• Matter of Brown, 21 Wend. 316.
• Matter of Coates, 3 Abb. Ct. of App. 231.
182
THE LAW OF ATTACHMENT.
The Plaintiff-Non-Residents.
State, it is sufficient, in a suit by a firm, that one member of the
firm is a resident, each partner being a creditor for the full
amonnt of the demand due the firm of which he is a member.'
§ 260. Under the Code this incapacity exists only in the case
of attachments against foreign corporations. The provisions
in relation to foreign corporations under this and other sections
of the Code have been fully considered in the chapter relating
to those bodies, but it may be well to repeat here the rule ap
plicable to all claims held by non-residents: Whenever an ac-
tion is required to be prosecuted by a resident, and the cause
of action is assignable, it may be assigned to a resident, and
sued in his name, as such assignment transfers to the assignee
the entire cause of action and all the remedies incident thereto."
§ 261. Same-Where there is no statutory limitation non-
residents are entitled to the remedy even as against other non-
residents, and also where that fact constitutes the ground of
attachment. Although courts of one State are constituted for
the benefit of its own citizens, and not for the purpose of set-
tling controversies between the citizens of other States, yet,
where the terms of the statute are general, as, for instance, to
"the creditor," it will extend to all creditors non-resident as
well as resident."
§ 262. Several creditors, who claim under distinct contracts
having no connection with each other, cannot unite, in an attach-
1 Renard v. Hargous, 13 N. Y. 259.
* See §§ 143 to 155. Foreign corporations, as plaintiffs, fall under
the same rule as non-residents, excepting, in actions against other foreign
corporations, they have the right to enforce remedies by attachment to
the same extent, in the same manner, and with the same priority, as
citizens. Hibernia Nat. Bank v. Lacombe, 84 N. Y. 867.
• McBride v. Farmers' Bank, 26 N. Y. 450, 458; Besly v. Palmer, 1
Hill, 482.
Ready v. Stewart, 1 Code Rep. N. 8. 298; Graham v. Bradbury, 7
Mo. 281.
• Barrow. Burbridge, 41 Miss. 622.
*
PARTIES TO THE ACTION.
183
The Plaintiff-Non-Residents.
ment proceeding, to attach the effects of an absent debtor.
They can secure payment out of the same fund by filing their
separate claims, but the original proceeding must be on behalf
of a single creditor in such a case.¹
¹ Yeaton v. Lenox, 8 Pet. 123.
A
184
THE LAW OF ATTACHMENT.
The Defendant-Personal Representatives.
CHAPTER XIII.
THE DEFENDANT-PERSONAL REPRESENTATIVES.
SECTION 263. An attachment will not lie against the per-
sonal representatives of a deceased debtor except in certain cases.
"As a question of policy and expediency," says Chief Justice
Shaw, "we are inclined to the opinion that when it becomes
necessary to close up the affairs of a debtor, whether at his
decease or during his life, true equity would require that all his
property which has not become appropriated and vested by his
own act or the operation of law should be applied to the pay-
ment of all his debts, and that an attachment on mesne process,
being a sequestration of his property and placing it provision-
ally in the custody of the law, should give way to the more
general sequestration of all his property for the satisfaction of
all his debts. In that case the creditor will receive the whole
amount of his debt if there be assets, and his satisfaction pro
rata if there be a deficit." While this rule has not been fol-
lowed in most of the States in the case of a judicial settle-
ment by bankruptcy or otherwise of the affairs of an insolvent
debtor during his lifetime, it certainly is the general rule in
regard to the settlement of the estates of deceased persons.
It is somewhat difficult to draw a distinction founded upon
principle between the two cases, but under the construction
given by our courts, it may be stated that an attachment will
not lie against heirs, executors, administrators or others holding
property by right of representation upon a demand against the
decedent.'
' Davenport v. Tilton, 10 Metcalf, 820.
* So held in New York under the Revised Statutes. See Matter of
Hurd, 9 Wend. 465; Jackson v. Walsworth, 1 Johns. Cas. 372; Oakley v.
PARTIES TO THE ACTION.
185
The Defendant-Personal Representatives.
§ 264. Foreign executors or administrators.
The rule is
equally well settled, both in this country and England, that no
suit can be brought against an executor or administrator in his
representative character in the courts of any other country than
that in which he obtains letters.' But the right to attach in
such a case may be expressly created by statute, in which case
an attachment will lie provided the debtor was a non-resident
at the time of his death and left property in the State.❜
Aspinwall, 2 Sand. 19; Halliday . Noble, 1 Barb, 137. These decis-
ions were, however, influenced by the terms of the statute which lim-
ited the right to claims against the debtor personally. Under the Code
the court held, in Metcalf . Clark, 41 Barb. 45, that an attachment
would not lie in an action against executors personally for the purpose
of compelling the settlement of the estate of the testator, or of enforc-
ing payment by the executors of an individual demand contracted by
the testator where the executors are not charged with any breach of duty
except neglect to pay the debt. The court expressed the dicta that it
may be laid down as a general rule that in no case can a warrant of at-
tachment issue against executors or administrators in their representa-
tive character. When this question is fairly presented I have no doubt
the equity rule, as expressed in the above dicta, will be followed, as it
has been generally adopted in this country. See Drake on Attachments,
§ 82, Weyman v. Murdock, Harper (S. C.) 125; Taliaferro ». Lane, 23
Ala. 309; Brown v. Richardson, 1 Martin N. 8. (La.) 202; Debuys v.
Yerbey, Id. 880; Cheatham v. Carrington, 14 La. An. 696; Peacock v.
Wildes, 3 Halsted (N. J.) 179; Haight v. Bergh, 8 Green (N. J.) 183;
Stanton. Holmes, 4 Day (Conn.) 87; McCoombe v. Dunch, 2 Dallas
(Pa.) 73; Pringle v. Black, Id. 97; Smith v. Riley, 82 Ga. 356. But see
Ouzts v. Seabrook, 47 Ga. 359, where the court held that an attachment
may issue against the estate of an intestate upon proof that the admin-
istrator is removing or about to remove the goods of his intestate out of
the county, and that in such a case the plaintiff may verify the claim
even though the contract which was the foundation of his claim was
made direct with the intestate.
Under the general rule that the property of a deceased debtor is not
liable to attachment, see also, Patterson v. McLaughlin, 1 Cranch (U. 8.)
C. Ct. 352; Henderson v. Henderson, 5 Id. 469.
¹ See Story's Conflict of Laws, page 523, Harrison v. Mahorner, 14
Ala. 829.
* Branch Bank of Mobile v. McDonald, 22 Ala. 474; Lewis v. Reed,
11 Ind. 239. But not after the foreign executor has taken the property
into his possession, Loomis v. Allen, 7 Id. 706.
186
THE LAW OF ATTACHMENT.
·
The Defendant-Personal Representatives.
§ 265. Attachment against non-resident heirs-Equity rule.
It seems that a creditor of a deceased debtor may proceed by
foreign attachment against foreign heirs, and thus subject real
estate situated in the State descending to them from the
debtor.' The only theory upon which such an attachment
can be upheld is, that in equity the heir is subrogated, by virtue
of the estate, to the liabilities of the decedent to the extent of
his interest in the estate, to which extent he becomes, in a cer-
tain sense, the debtor, and not the representative of the debtor
merely. A chancery attachment will not lie to charge the
effects of a deceased foreign debtor in the hands of a resident
defendant, as there is no longer any "absent defendant or non-
resident" within the meaning of the statute." But in Alabama
an attachment may be levied upon the property of a foreign
decedent debtor before the same has been reduced into pos-
session by the foreign executor so as to become assets.
•
266. Claims having a priority of payment. But a distinc-
tion must be drawn in favor of claims against the decedent which
have a priority by the statute or otherwise as, for instance,
the expenses of the last illness, taxes, &c., and claims against
the estate directly, such as funeral expenses, costs of adminis-
tration, &c. Such demands do not fall within the equity rule,
that all of the property shall apply pro rata to the payment
of all the debts, as they are entitled to payment in full before
the fund is made up for a dividend payable to the general
creditors. On general principles an attachment would be
allowed in such a case if, under the circumstances, the creditor
has a right of action against the estate and the claim is in
other respects within the statute.
¹ Carrington . Didier, 8 Gratt. (Va.) 260; see, also, Moores . White,
8 Id. 839, so held in an attachment issuing out of the Chancery Court.
* Redfern v. Rumney, 1 Cranch C. C. 800.
• Loomis v. Allen, 7 Ala. 706; in Alabama the attachment may issue
against foreign executors of non-resident debtors, and this may affect
the rule in such a case.
PARTIES TO THE ACTION.
187
The Defendant-Personal Representatives.
$ 267.
Against executors individually. A further distinc-
tion must be drawn between actions against executors or ad-
ministrators in their representative capacity, and actions against
them personally upon their personal liabilities growing out of
such representative relation, either on account. of their per-
sonal contracts to pay the plaintiff's claim-or by reason of an
abuse of their trust to the damage of the plaintiff. In all such
actions a warrant of attachment may issue an
issue ager
fendants in their individual but not representatiKERSITY OF
MICHIGAN

§ 268. Against a decedent or defunct corporation. The
equity rule that shields the estate of a decedent for the equal
benefit of all his creditors operates to protect that of a defunct
insolvent corporation in the hands of trustees. This rule only
applies where the corporation has actually ceased to exist," on
account of the loss of its charter, which is to a corporate body
what the soul is to an individual-the life-sustaining principle or
power. If, by mistake or otherwise, an attachment is issued
against a person or corporation after it has suffered natural or
civil death, it is absolutely void for want of parties defendant.”
•
§ 269. Death pendente lite, survivorship. In this connec-
tion it will be necessary for us to consider whether the rule in
the case of attachments issued originally against executors or
administrators in their representative capacity will prevent
their substitution in the place of the defendant, whose death is
suggested after the attachment has been executed, but before
the recovery of judgment in the attachment suit. This de-
pends upon two questions: 1st. Whether the statute has rem-
edied the common-law disability of an abatement by providing
for the continuance of the suit against the personal representa-
1 Matter of Galloway, 21 Wend. 82. See, also, Dennistoun e. Hub-
bell, 10 Bosw. (N. Y.) 155; Jermain v. Pattison, 46 Barb. 1.
蠱
​• Branch Bank of Mobile v. McDonald, 22 Ala. 474.
Loring. Folger, 7 Gray (Mass.) 505; Paschall v. Whitsett, 11 Ala.
472; Farmers' and Mechanics' Bank v. Little, 8 Watts and Sergeant (Pa.)
207.
188
THE LAW OF ATTACHMENT.
The Defendant-Personal Representatives.
tives of the defendant; and, 2d, Whether an attachment is in
fact a lien on the property attached.
§ 270. The attachment survives if it is considered a lien—
New York rule. It is unnecessary to inquire into the existence
of such a statutory provision in each State, as the pleader is
supposed to know the peculiarities of local statutes in this re-
spect; but upon the latter query there is a wide difference of
opinion in this country. In New York the attaching creditor
is held to have secured by the attachment a positive lien upon
the property of the defendant, equivalent to the lien of a judg-
ment or execution in its binding force; and that upon the
death of an attachınent debtor pendente lite, the property goes
to his personal representatives charged with the lien; and con-
sequently, if the cause of action survives, the action may be
continued in the name of the executors, and the lien enforced
upon the recovery of judgment, by the sale of the property
attached.'
§ 271. Justice Story's rule in bankruptcy cases.
That an
attachment is an existing lien is well settled under the bank-
ruptcy practice in this country.' Opposed to the general view,
Justice Story has persistently held that an attachment is not a
lien either in the sense of the common law, the maritime law,
or in equity; but only a conditional charge existing until the
judgment and levy on execution is perfected, and, therefore,
is dissolved by bankruptcy. This theory has only been fol
¹ See Thacher v. Bancroft, 15 Abb. 243; Moore . Thayer, 6 How.
Pr. 47; 8. C., 10 Barb. 258.
* Drake on Attachments, § 435; Franklin Bank v. Batchelder, 23
Maine, 60; Downer v. Brackett, 21 Vt. 599; Rowell's Case, Id. 620,*
Haughton . Eustis, 5 Law Reporter, 505; see, also, Id. 800, 392;
Kittredge v. Warren, 14 N. H. 509; Same . Emerson, 15 Id. 227;
Buffum v. Seaver, 16 Id. 160; Ingraham v. Phillips, 1 Day (Conn.) 117;
Wells v. Brander, 10 Smedes & Marshall, 348; Vreeland v. Brown, 1
Zab. (N. J.) 214.
* Foster's Case, 2 Story (C. C.) 131; Bellows and Peck's Case, 3 Story,
428.
So held, also, in Massachusetts under the insolvent act, Springer
PARTIES TO THE ACTION.
189
The Defendant-Personal Representatives.
lowed in Louisiana, and may be considered an exception in-
stead of a rule of law.
§ 272. The effect of the lien. Granted the position, that
the levy of an attachment produces a valid existing lien upon
the property attached, it is difficult to see why, upon principle,
the New York rule should not be followed in all of the States
in which an ordinary action on contract survives, and may be
continued against the estate of the defendant. All of the cases
hold that if judgment is recovered before the death of the de-
fendant the attachment lien may, upon his decease, be enforced
against the property charged therewith.' The attachment
upon the recovery of judgment is only a lien upon the de-
fendant's property. If it is also a lien, before judgment is re-
covered, of such a fixed and positive nature as to withstand the
power of the bankruptcy act, it would seem that the same rule
should apply in the case of attachments, and it has so been
held in some States; but in California, Missouri, and Louis-
iana,” the attachment is dissolved by the death of the defend-
ant, and the attached property passes into the hands of the
administrator. In Pennsylvania it has so been held in the case
of foreign attachments, and also in the U. S. Circuit Court
for the District of Columbia.' But the only design of a foreign
8
*. Foster, 1 Story, 601; Bigelow v. Pritchard, 21 Pick. (Mass.) 169; Kil-
born v. Lyman, 6 Metc. 299; Ward v. Proctor, 7 Id. 818; Hill . Keyes,
10 Allen, 258; and in Louisiana, under the bankruptcy law, Fisher v.
Vose, 3 Rob. (La.) 457.
Fitch v. Ross, 4 Serg. & Rawle, 557. But in Missouri it has been
held otherwise where the judgment is in rem; Harrison v. Renfro, 13
Mo. 446.
* See Green v. Shaver, 8 Humphreys (Tenn.) 139; Perkins v. Norvell,
6 Id. 151.
• Myers d. Mott, 29 Cal. 359, 867; Hensley v. Morgan, 47 Cal. (1874)
622.
• Sweringen. Eberius, 7 Mo. 421.
• Collins v. Duffy, 7 La. An. 89.
• Fitch •. Ross, 4 Serg. & Rawle (Pa.) 557. See Drake on Attach-
ments, § 433.
'Pancost v. Washington, 5 Cranch C. C. 507.
190
THE LAW OF ATTACHMENT.
The Defendant-Personal Representatives.
attachment is to produce the defendant in court. As that ob-
ject is defeated by his death, the attachment being powerless
to produce the required results, is dissolved. This rule does
not, therefore, in principle, conflict with that adopted in New
York State.
§ 273. Attachment will not lie against foreign receivers
of insolvent estates. Receivers appointed by the courts of an-
other State to administer the affairs of an insolvent cannot be
sued in their official capacity, and the receivership property
attached in this State on account of matters arising under trust
or otherwise. They are the custodians under a foreign tri-
bunal, and as such are the officers of a foreign court, and the
attachment would interfere with the very property being ad-
ministered by another court. A judgment against them would
be as receivers, and no lien on property in the hands of another
jurisdiction. But in an action against an insolvent foreign
corporation, the Court of Appeals upheld an attachment in
New York upon funds of the defendant located there, although
the incorporate existence of the defendant had been terminated,
and its affairs were in the hands of trustees appointed by a
foreign court."
'Kilmer v. Hobart, 8 Abb. N. C. 426 (Sp. T.).
"Willetts v. Waite, 25 N. Y. 577; Dunlap v. Patterson Fire Ins. Co.,
74 N. Y. 145.
PARTIES TO THE ACTION.
191
The Defendant-Copartners.
CHAPTER XIV.
THE DEFENDANT-COPARTNERS.
8 274. Liability of Partners. Each individual member of
a copartnership is personally liable for all the firm debts, and
owner of all the firm property, subject only to the same rights
in every other partner; and, as to his personal debts, subject
also to the prior rights of the partnership creditors.
§ 275. Individual interest in partnership property. Where
upon a partnership debt service is only made upon one mem-
ber of the firm and judgment rendered against him alone, the
entire joint property is sold absolutely; but where an execution
issues against one for his individual debt and is levied on part-
nership property, it is sold subject to the partnership debts,
and the claims of the other partners.' In the latter case the
purchaser acquires the same interest that the defaulting part-
ner held, to wit, the residual interest after the settlement of
firm accounts."
¹ American Leading Cases, page 473; United States v. Hack, et al.
8 Peters (U. S.) 271; Garbette v. Veule, 5 Q. B. (Eng.) 408; Pierce ».
Jackson, 6 Mass. 242; Filley v. Phelps, 18 Conn. 296, 801; Sutcliffe v.
Dohrman, 18 Ohio, 181; Knox v. Summers, 4 Yeates (Pa.) 477; Morrison
v. Blodgett, 8 N. H. 238; Christian v. Ellis, 1 Grattan (Va.) 396; White
v. Woodward, 8 B. Monroe (Ky.) 484; Ex parte, Stebbins, R. M. Charl-
ton (Ga.) 77; Snodgrass' Appeal, 1 Harris (Md.) 471; Nicoll v. Mum-
ford, 4 John Ch. 523, 525; Averill v. Loncks, 6 Barb. 19; Waddell v.
Cook, 2 Hill, 48, note a; Mowbray v. Lawrence, 13 Abb. 318; Smith v.
Orser, 42 N. Y. 132.
• American Leading Cases, page 473.
A
192
THE LAW OF ATTACHMENT.
The Defendant-Copartners.
§ 276. Possession of firm property may be taken by process
against one of the parties. It is a well settled rule of law in
this State, and may be stated as a general proposition accept-
able to American jurisprudence and common law, that upon
an execution against one of several copartners for his individual
debt, or upon his joint liability on a copartnership debt, the
sheriff may seize and take manual possession of the entire
leviable property of the copartnership, or so much thereof as
is sufficient to satisfy the execution out of the interest of the
judgment debtor therein.'
§ 277. The rule applies where the process is an attachment.
There is no distinction in this respect between an attachment
and an execution. The authority of the sheriff under each
process is to take the property of the defendant against whom
it is issued. No more power is given under an execution than
under an attachment. The latter remedy is intended to give
the party in whose favor it is issued a lien on the property of
the debtor, to be made available on a sale of it by an execu-
tion upon the recovery of judgment."
“An attachment," says
Justice Wells, "is more in the nature of the former writ of
fieri facias, as to its object and effect, than of any other
' Ibid. pages 460–462; Heydon v. Heydon, 1 Salkeld, 892; Bac-
hurst v. Chinkard, 1 Shower, 169; Lissard . Warcup, 2 Mod. 279; 12
Id. 446; Jacky v. Butler, 2 Ld. Raymond's R. 871; Smith v. Stokes, 1
East 867; Eddie v. Davidson, Douglas, 650; Field . —, 4 Vesey,
396. In Morley v. Strombom, 3 Bos. & Pull. 254, the court held that
where three partners, two of whom resided abroad, were sued for a
partnership debt, and the resident partner appeared by himself, but re-
fused to appear for his copartners, the sheriff, oq a distringas against the
non-resident partners, to compel their appearance, might take the part-
nership effects in the possession of the resident partner, though purchased
and paid for by bim alone; and the court refused to relieve him, saying,
that what might be taken under an execution might be taken under a
distress.
'Goll v. Hinton, 8 Abb. (N. Y.) 123; Phillips v. Cook, 24 Wend.
889; Waddell v. Cook, 2 Hill, 47; Pope v. Haman, Comb. 217; Schrug-
ham v. Carter, 12 Wend. 181. But see Bogart v. Dart, 25 Hun, 895.
Fer Lott, J., in Smith ♥. Orser, 42 N. Y. 132.
PARTIES TO THE ACTION.
193
The Defendant-Copartners.
common law writ.
It is, in effect, an initiatory execution
against the defendant's property before judginent, and issued
in anticipation thereof.
When the execution comes
he does not levy, for that has already been done by authority
of the attachment, so that the attachoient and execution to-
gether contain the same and no more authority than a common
writ of ti. fa.”
•
$278. Same. It follows from these premises that when-
ever one or more members of a copartnership come within the
provisions of the statute, an attachment will lie against the co-
partnership property and the individual property of such co-
partners, although some of the members of the firm are not
within the provisions of the statute; and also that in ac-
tions against one of the copartners, upon his individual
liability, an attachment may, in a proper case, issue as well
upon his individual property as upon his interest in such
copartnership, and the sheriff may, in either case, take manual
possession of the partnership property.
McKay v. Harrower, 27 Barb. (N. Y.) 463. See, also, Rinchey .
Stryker, 26 How. (N. Y.) 75.
In the case of Smith v. Orser, decided in the Court of Appeals of
this State in 1870, all of the above propositions are approved and
adopted. This was an action by a copartnership against the sheriff for
taking possession of property owned by plaintiffs. The sheriff seized
the property by virtue of three attachments issued upon a firm debt
against the copartnership property when two members of the firm were
non-residents and the other member a resident. The suit was against
all of the defendants, but the attachments were only issued against the
non-resident members. The Court upheld the attachments and rendered
judgment against the plaintiffs.
See, also, upon the general principles above stated: Goll. Hinton,
8 Abb. 120; Phillips v. Cook, 24 Wend. 389, 406; Schrugham v. Carter,
12 Id. 131; Burrall v. Acker, 23 Id. 606; Waddell v. Cook, 2 Hill, 47;
Mersereau . Norton, 15 John. 179; Matter of Chipman, 14 Id. 217;
Patterson. Perry, 10 Abb. 82; Kelley v. Breusing, 83 Barb. 133;
Rhoads v. Woods, 41 Id. 471; Skinner v. Stuart, 39 Id. 206; McKay v.
Harrower, 27 Id. 463; Marshall v. McGregor, 59 Id. 519; Rinchey v.
Stryker, 26 How. (N. Y.) 75; Collins. Hood, 4 McLean (U. S. C. C.)
18
194
THE LAW OF ATTACHMENT.
•
The Defendant-Copartners.
§ 279. Joint debtors. The same rule applies in the case of
joint debtors and in attachments against joint property on the
individual debt of one of the joint owners.'
¹ Marshall . MeGregor, 59 Barb. (N. Y.) 519; Buddington v.
Stewart, 14 Conn. 404; Miller v. Richardson, 1 Mo. 221; Searcy v.
Platte Co., 10 Mo. 269; Bank of Northwest v. Taylor, 16 Wis. 609.
186; Phillips. Bridge, 11 Mass. 242; Whitney v. Ladd, 10 Vt. 165;
Welch v. Clark, 12 Id. 686; Remmington v. Cady, 10 Conn. 44; Bud-
dington v. Stewart, 14 Id. 404; Douglas . Winslow, 20 Me. 89; Brad-
bury . Smith, 21 Id. 117; Bryan . Ashley, 13 S. & M. (Miss.) 284;
Day . McQuillan, 13 Minn. 205; Searcy v. Platte Co., 10 Mo. 269;
Morgan v. Watmongh, 5 Wharton (Pa.) 125; McCarty v. Emlen, 2 Dall.
(U. S. C. C.) 277; Wilcox . Carey, 9 Dana (Ky.) 297; Moore v. Simp-
son, 5 Littell (Ky.) 49; Watts v. Griffin, Litt. Sel. Cus. 244; Lee .
Bullard, 8 La. Ann. 463; Bank of North West v. Taylor, 16 Wis. 609.
The New York rule now fully adopted in Connecticut-Stevens v.
Stevens, 89 Conn. 474 (1872); and in Tennessee-Henry v. Cawthorne,
4 Heiskell (Tenn.), decided in 1871, and overruling Wallace v. Galloway
(5 Cold. 510). In this case the Court said: “The allegation that the de-
fendants were copartners, and that one was a non-resident, is sufficient
to warrant a demand for writs of attachment against the property of
such non-resident, whether such property consists of individual or part-
nership interests. The members of a partnership indebted are each
debtors to the extent of that indebtedness as much as an individual to
the extent of his individual indebtedness; and the creditors have a
right to have before the Court all the members of the firm, and to employ
such helpful provisions of the law as will bring them in and subject the
property to pay the debts. The non-residence of one of the partners, and
the asking of an attachment as to his estate present, gave the Court
jurisdiction; and having it for one purpose, it will entertain the bill for
all the purposes of one transaction, or one series of transactions, and of
all persons identified therewith, upon the principle that equity prevents
a multiplicity of suits."
But see, to the contrary, on one or more of the propositions contained
in the New York rule, Wiley v. Sledge, 8 Ga. 532; Voorhees v. Hoag-
land, 6 Blackf, 232 (sed contra Burgess v. Atkins, 5 Id. 337); Barber ♥.
Robeson, 3 Gr. 17; Taylor e. McDonald, 4 Ohio, 149; Leach ». Cook,
10 Vt. 239; White & Schnefly's case, 10 Watts (Pa.) 217.
Under the Judiciary Act of the United States it has been repeatedly
decided in the U. S. courts that the word "citizen" of a state, in refer-
ence to jurisdiction, was to be construed as embracing all parties, where
the interest was joint, concerned in that interest, and that each partner
PARTIES TO THE ACTION.
195
The Defendant-Copartners.
§ 280. Joint and several. Where two or more persons are
sued jointly, an attachment may be issued against the property
of one defendant only,' and where the liability is joint and
several the same principle applies."
¹ Austin v. Burgett, 10 Iowa 302.
• Chittenden v. Hobbs, 9 Iowa, 417; Thompson v. Taylor, 13 Me. 420.
must be competent to sue or liable to be sued in those courts (3 Cranch,
167; 1 Wheat. 91, 13 Peters, 519). But the question there turns upon
the relation which each party bears or sustains to the local government,
in attachment, by the relations established by contract, and the residence
of any party who sustains that relation. The National Courts do not
hold that each partner is not a creditor, but it is because they all are
creditors that the rule is adopted. See Renard . Hargous, 13
N. Y. 259.
As the American rule in reference to attachments and executions
against copartners is still in an unsettled state, not so much on account
of various statutes as by varied constructions of the common law, I sub-
mit herewith the learned and exhaustive review and opinion of Judge
Cowen contained in the case of Phillips . Cook (24 Wend. 389), as a
basis upon which the American rule may be established and the decisions
hereafter made harmonious except so far as controlled by statutory
rights in the hope that that which leavened the decisions of this State
may leaven the whole lump of American jurisprudence.
"By the Court. COWEN, J.-A point is now made on the validity of
the levy; but it was not raised on the trial: the only question is whether
trespass will lie against the sheriff for seizing and selling under a ft. fa.
the property of an insolvent firm, to satisfy the individual debt of one
of the members. The action here is the same as if it had been brought
by the partners, it being by trustees, claiming under an assignment made
subsequent to the levy. The question has been a good deal discussed
before us in consequence of some apparent conflict in the cases, and a
difficulty upon them, felt more by the other members of the court than
by myself. For one, I never could bring myself to doubt a priori, nor
have I been able to see any serious discrepancy in the adjudications.
Not a single authority has been shown for maintaining this action; nor
any intimation to that effect, although the question stood over in Thur-
ber v. Lewis for several terms, under direction to re-argue. The whole
doctrine is gone into a distinct section of Collyer on Partnership, 478
to 478, Am. Ed. of 1839, where several of the most material cases, Eng-
lish and American, are cited. The result is, that at law the sheriff may
seize and sell the interest of a partner in all choses in possession the
same as he may that of any joint tenant or tenant in common. Part-
196
THE LAW OF ATTACHMENT.
The Defendant-Copartners.
281. The rule inapplicable to partnership credits. A dis-
tinction must be drawn between partnership credits and the
tangible effects of a firm. Partnership credits cannot be at-
tached for the individual debt of one partner,' and for this
¹ Barry v. Fisher, 89 How. (N. Y.) 521, 8. C., 8 Abb. N. S. 369;
Winston . Ewing, 1 Ala. 129. Sed contra, as against surviving partner,
Berry . Harris, 22 Md. 80.
ners are joint tenants in the stock and all the effects; they are seized
per mi et per tout. Collyer, 64. And the rule of proceeding expressly
laid down in the books is, that under a fi. ƒɑ. against one, the sheriff
must seize the entire partnership effects, as far as may be necessary to
satisfy the execution; he must sell that partner's share against whom
the execution is; and then the vendee becomes tenant in common with
the other partner. (Backhurst v. Clinkard, 1 Shower, 169, Holt, 643,
S. C., Heyden v. Heyden, 1 Salk. 392.) The doctrine of these cases
has never been doubted; but has been as often reaffirmed as the ques-
tion has been mentioned by courts or in any of the Treatises on Partner-
ship. It was adjudged in Jacky v. Butler, 2 Ld. Raym. 871, and in
Marriott v. Shaw, Com. Rep. 275, 277. The true rule was laid down by
Holt, Ch. J., in Pope v. Haman, Comb. 217: Upon a judgment against
one partner, the sheriff may take the goods of both in execution; and
the other copartner has no remedy at law otherwise than by retaking
the goods, if he can; for the vendee of the sheriff becomes tenant in
common with the other copartner.' This is but saying what every one
would, who has studied the text of Littleton, Co. Litt. § 323, 199, b.
So far as this section and Coke's Commentary pertain to the question,
they are both adopted in St. John v. Standring, 2 Johns. R. 468.
"It does not appear to have been doubted in any age of the law,
that the sheriff might take and sell the separate partner's interest. The
questions have been whether he might not sell the whole interest of
both on a fi. fa. against one; or whether he could seize the whole. The
answers in all the cases have been, you must seize the whole, and sell only
the moiety belonging to the debtor. These were called old cases on the
argument; the antiquity of those cases only adds to their strength.
They are all, however, since the revolution of 1688, ranging from Will-
iam and Mary down to the Georges. They were cited and approved by
Lord Kenyon, in Smith v. Stokes, 1 East, 363, 867. More than that,
they were expressly affirmed by a decision of this court. (Schrugham
v. Carter, 12 Wendell, 131.) The entire partnership property was there
taken under an execution against one, and this court held that replevin
would not lie by the assignees of the firm. Savage, Ch. J., laid down
PARTIES TO THE ACTION.
197
The Defendant-Copartners.
reason a firm cannot be garnisheed for the personal liability of
one of its members.
§ 282. Secret and dormant partners are, as to creditors,
under the same liabilities as ordinary copartners in every re-
the law as it was understood by Holt, Ch. J., in the reign of William
and Mary.
"It was admitted in argument that the sheriff may seize, but it was
said that neither he nor the purchaser cau remove the property, whereas
the cases at law are all express that he may sell, from Holt down to the
12 Wendell. The distinction sounds singular on its face. For what
purpose does a sheriff seize property on a fi. fa. if not to remove and
sell it? But his power was assailed a priori, and it was said he can
exercise no greater power over the property than the copartner against
whom the execution goes; that by the levy, the sheriff is but a tenant
in common, who must wait his chance, and take the goods when he can;
but he cannot remove them if his co-tenant be unwilling and hold on to
the possession, without committing a breach of the peace. If this were
so, the reason would be a perfect non sequitur as to the right of suing in
trespass de bonis, trover or replevin, however it might entitle the co-
tenant to sue for an assault in wresting the property from him. (Hyatt
*. Wood, 4 Johns. R. 150, 159, 160.) But is the law so absurd as to
command a sheriff by its writ to seize and sell an article, yet forbid him
to remove it, or declare him a breaker of the peace for selling it, because
he resisted, and put to the exercise of force? This is a sort of imbecility
which the common law has been careful to avoid in all cases. When it
directly commands an officer to do any act, it impliedly gives him the
power and means of performing it, and in nothing is this rule more con-
spicuous than in the execution of a sheriff's power. But it cannot be
necessary to pursue the question through a course of reasoning, for the
sheriff's right at law is settled by the authority of this court. Wilson &
Gibbs v. Conine, 2 Johnș. R. 280, is not opposed to it. There both the
partners sued in trover for a seizure upon execution against one; but
they recovered merely because the defendant failed in his formal proof
of the decree on which the execution issued. On motion for a new trial,
the preference of partnership creditors was recognized, on the ground,
as expressly stated, that the motion appealed to the equity of the court.
They did not pretend to deny the sheriff's legal right, though he had
seized and sold a consumable article, after being forbidden by the
plaintiff, and the purchaser had actually taken it away. No one even
hinted that the sheriff wanted the legal power, provided his authority
had been shown. (Vide per Kent, Ch. J., at p. 282.) There are, I con-
198
THE LAW OF ATTACHMENT.
*
The Defendant—Copartners.
spect, unless protected by the statute. A secret partner is one
who participates in the profits and losses of a firm but is
not avowed or known as a partner. A dormant or silent part-
ner is one who invests in a firm, receives a proportion of the
profits, but has no conduct or control of its business.
cede, some respectable dicta which favor an action at law by the partner
who has been thus dispossessed; the action being in his name alone.
Such is that of Putnam, J., in Rice v. Austin, 17 Mass. R. 206, 7; and
Parker, J., in Gibson v. Stevens, 7 N. H. Rep. 357, 8. Putnam, J.,
cited no authority, and professedly spoke hypothetically. The point
was not raised and finally decided in either of the cases; and Parker, J.,
admitted himself to be speaking on a difficult branch of the law. I
have looked into the three cases cited by him. Two of them avowedly
go on the ground of equity-impliedly therefore admitted the law to be
different from what the learned judge understood it to be. The third
was a case of tenants in common, the sheriff having expressly sold the
whole under an execution against one. (Melville v. Brown, 15 Mass.
Rep. 82.) Vide White . Osborn, 21 Wendell, 72, S. P., as to a sale of
the whole by one of two tenants in common. It would be different,
even in such a case, should the sheriff sell only the proper share, though
he seized the whole, as he must. Clearly, it cannot be denied, that
copartner has as great an interest at law, and even a greater, than a
simple tenant in common; nor that if the sheriff can, on a fl. fa. against
one of several tenants in common, take the whole chattel and sell the
moiety in despite of opposition from the co-tenant, he may do so as
against the copartner. That he may do it in the former case was
directly held in Messereau . Norton, 15 Johns. R. 179. He had, under
an attachment against one tenant in common, seized and taken a yoke
of oxen from the actual possession of the other, and proceeded to sell
them; and they were taken away by the purchaser, though the co-tenant
forbade the sale. He brought trespass; but this court held it would not
lie, citing as authority the very case of Heyden v. Heyden, respecting
the sheriff's authority against one of several partners. In Shaver v.
White, 6 Munf. 110, the attachment was sued out against one of two
partners, and 800 head of cattle taken by the sheriff out of the pos-
session of both; and they brought trespass for the taking. The action
was against the plaintiff in the attachment, who directed the sheriff to
levy. The court held that the action would not lie, and pronounced
their opinion, also, that it conld not be maintained against the sheriff,
citing Heyden v. Heyden. The argument for such an action goes the
length of saying that when a man puts his property into partnership, it
is actually protected against a levy at the suit of his individual creditors;
PARTIES TO THE ACTION.
199
The Defendant-Limited Partnership.
$283. Limited partnership-Liability of special partners.
To secure the aid of capitalists who are willing for a specified
time to place a specified sum in the business of a firm, and
hazard that sum only, the legislature has authorized the creation
of limited or special partnership on that basis. By giving
that it is exempt from execution, like his ten sheep or his cow, under
the statute. A debtor has but to form a partnership, and he may set
executions at defiance, so far as his own debts are concerned, still pos-
sessing and trading upon that very capital contributed by his individual
creditors. It was thought singular, by a learned judge in Pennsylvania,
that even the qualified excmption allowed in such a case by a court of
chancery should not have been repudiated, as contrary to the statute
against transfers to defraud creditors. He said that a contract which
enables the parties to keep a class of their creditors at bay, and yet
retains the indicia of ownership, should not have been deemed within
the statute of Elizabeth, is attributable exclusively to the dispositiou
universally manifested by the courts of justice to encourage trade.'
Gibson, Ch. J., iu Douer v. Stauffer, 2 Penn. R. 204. To give an action
of trespass by the partners would make the contract equivalent to the
protection afforded by the owner's dwelling-house. It would be putting
it under perpetual lock and key as to all his private debts.
"It is supposed that Dob v. Halsey, 16 Johns. R. 84, gives counte-
nance to this action. That was assumpsit, by two out of three partners,
to recover the price of goods sold by a third, because he had turned
them out in payment of his private debt. The plaintiffs were nousuited,
on the ground that all the partners had not joined. The action was a
singular one. The decision seems to suppose that after a partner has
sold the goods of the firm in payment of his honest debt, without any
fraud as against himself, he may join his copartners in an action to
recover the price of the goods-a price which, when recovered, he may
release, and still use the avails for his individual benefit. Admitting his
copartners to have been defrauded by the sale, a bill in equity against
him and the vendee would seem to be the more obvious remedy. In
Roderiques v. Heffernan, 5 Johns. Ch. R. 417, a bill was filed and relief
obtained in that form, for such an injury. The state of accounts between
the partners should be inquired into, and if the firm be not injured the
vendee should not be disturbed. He has obtained no more than the law
would give him, on execution, against the man from whom he received
the goods. Independently of an account, and especially where the
action at law is in the name of all the partners, I cannot but think the
decision of the supreme court of appeals of Kentucky; in Owings & Co.
A
200
THE LAW OF ATTACHMENT.
The Defendant-Limited Partnership.
public notice in the manner required by the statute, the capit-
alist who is designated as a special partner is not personally
liable for the firm debts, and his property cannot be attached
in an action against the firm if he has contributed the amount
specified in the published statement. The fund alone is liable.
v. Trotter, 1 Bibb, 157, denying an action to the firm, more in accord-
ance with the law and justice of the case.
"In the State of Vermont all preference of partners or their creditors
by way of lien over an attachment or execution for the debt of a sole
partner has been entirely repudiated, both at law and in equity. Reed
⚫. Shepardson, 2 Verm. R. 120.
"On the other hand, there is no doubt of the equitable rule in England,
New York, and most of the states, that, though the sheriff may at law
levy on and sell the right of the individual partner, which shall pass
absolutely to the purchaser, yet he takes subject to an account between
the partners, which if it eventuate against him, his purchase may go for
nothing. That, however, is his own look-out. It is no reason why the
creditor should be deprived of his legal right to sell, or the purchaser of
his right to buy. In The King v. Sanderson, Wightw. 50, 53, Mac-
donald, Ch. Baron, said: 'In cases of execution by a subject it is
gen-
erally settled that the whole must be taken in execution and sold, and
the purchaser becomes a tenant in common with the other partners.'
(Vid. United States v. Hack, 8 Pet. 271, 275, 276.) The English cases
to this effect are collected in a note to Smith's Case, 16 Johus. R. 106
to 109. The very idea of going into equity concedes the right to the
sheriff to sell at law. On the question coming before Chancellor Kent,
he refused to restrain the sheriff, admitting his absolute right at law
not only to levy, but sell. (Moody v. Payne, 2 Jolins. Ch. R. 546.)
The bill was filed by the co-partner of the debtor. So in Brewster v.
Hammet, 4 Conn. R. 540, the common goods were attached for the debt
of one partner; but, on execution coming out, stayed in the hands of
the sheriff. On bill filed by the other partners, though the firm was
insolvent, the court denied them any relief, saying the property would
be safer in the hands of the creditor than if delivered back to the insolv-
ent partners. Hosmer, Ch. J., said: 'If the creditor take the property,
he assumes a liability to the equitable demands of the creditors of the
firm upon him; and their interest will be better promoted by leaving
them to the redress to which they have a claim than by placing the
fund in the possession of their insolvent debtors.' He reviewed the
cases, and concluded that the equitable property in the goods was vested
in the creditors of the partnership; but added, in all events the part-
ners have no equitable claim to the restoration of the goods.' They
PARTIES TO THE ACTION.
201
The Defendant-Limited Partnership.
A special partner has no interest in the property of a
copartnership as property, but simply an interest in the profits,
and a clain against the firm to the extent of his investment
and the accruing profits, or less the proportionate losses. A8
between the general partners and creditors of the firm, the
were of course sold by the sheriff at law, and taken entirely away from
the partners. The bill was simply dismissed.. Thus the doctrine is not
only of an equitable nature purely, but even in a court of chancery is
received under various qualifications and restrictions which can never
enter into an action at law. In Hoxie v. Carr, 1 Sumner, 181, Story, J.,
says: Upon a dissolution of a partnership, each partner has a lien upon
the partnership effects, as well for his indemnity against the joint debts,
as for his proportion of the surplus. But the creditors of the partner-
ship, as such, have no lien upon the partnership effects for their debts;
their equity has been truly said to be the equity of the partners, and is
to be worked out through the rights of the latter.' It follows that, if
there be no creditors, no claim of surplus, or if the partners be insolvent,
even a court of chancery will withhold its aid. That the lien is purely
equitable, may be inferred from what was further said in the case cited:
viz., a purchaser without notice holds discharged of the lien. It is in
its nature, therefore, no more than the lien raised in chaucery for the
purchase-money of an estate. Story, J., was speaking on a bill filled by
a copartner to enforce the licn against a purchaser; and that chancery
alone is the forum ordinarily resorted to may be seen by various other
cases which treat of the same subject. M'Culloh v. Dashiell's Admr., 1
Harr. & Gill. 96; Story . Moon, 3 Dana's R. 331, 334; White v.
Dougherty, Mart. & Yerg. 809; Gilmore . The North American Land
Co., 1 Peters' C. C. R. 460, 465; Pierce v. Pass, 1 Porter, 233. In
M'Donald v. Beach, 2 Blackf. 55, 58, Holman, J., said: 'It is contended
that the separate debt of one partner should not be paid out of the part-
nership estate until all the debts of the firm are discharged. This doc-
trine is correct, but it does not apply until the partners cease to have
legal right to dispose of their property as they please. It is applicable
only when the principles of equity are brought to interfere in the distri-
bution of the partnership property among the creditors.'
“I admit that courts of law have sometimes felt able to apply this
equitable doctrine. One instance is where an action for a false return
was brought against the sheriff on the ground that he had omitted to
levy on partnership property under the process of domestic attachment
or fi. fa. against an individual partner. (Dunham v. Murdock, 2 Wen-
dell, 553; Pierce v. Jackson, 6 Mass. R. 242; Phillips . Bridge, 11
Mass. R. 242, 249; Commercial Bank v. Wilkins, 9 Greenl. 28; Tappan
A
202
THE LAW OF ATTACHMENT.
·
The Defendant-Limited Partnership.
special partner is simply a co-creditor to that extent, and he
has no more right to control or interfere with the partnership
property than has any other creditor. A sheriff cannot, by
virtue of an execution or attachment order, acquire any greater
rights than the debtor had at the time of his attachment or levy.
v. Blairsdell, 5 N. Hamp. R. 189.) This is on the obvious ground that
the plaintiff has lost nothing but that of which the court of chancery
would deprive him; and the sheriff ought not to be held accountable for
doing what the court of law sees that a court of equity would have com-
pelled him to do. So the equitable right was tried at law where a
partner sold out his share, covenanting against liens; the balance on an
account, inter se, was decidedly against him, for which it was held his
copartner had a lien, and so the covenant violated. (Hodges v. Hole-
man, 1 Dana, 50, 53.) Other like instances exist, some of which I shall
hereafter have occasion to notice.
"It is said this court is in the habit of arresting the sheriff's proceed-
ings on the application of the debtor's partner, that it will order an
account to be taken by the clerk, and then direct the sheriff to pay such
shares of the proceeds to the copartner as shall appear to be his due.
Something like this was indeed done in Eddie v. Davidson, Doughl.
650. The case, however, recognized the sheriff's right to sell, and the
order was in terms to pay a part of the money levied to the assignces
of the copartner. The assignees obtained the order. A like order was
made A. D. 1816, in The King v. Rock, 2 Price, 198, on motion by
partners; and the court said there had been many instances of such a
reference, but they denied an amoveas manus, thus recognizing the right
to sell. Vide note, id. 108. Lord Eldon said, A. D. 1813, in Waters
v. Taylor, 2 Veasy & Beames, 801, 'According to the old law, I mean
before Lord Mansfield's time, the sheriff, under an execution against
partnership effects, took the undivided share of the debtor without
reference to partnership accounts; but a court of equity would have
set that right by taking an account, and ascertaining what the sheriff
ought to have sold. The courts of law, however, have now repeatedly
laid down that they will sell the actual interest of the partner, pro-
fessing to execute the equities between the parties, but forgetting that
a court of equity ascertained previously what was to be sold. How
could a court of law ascertain what was the interest to be sold, and what
the equities; depending on an account of all the partners for years ?'
The action of the courts of law, however, seems not to have been by any
means so uniform as Lord Eldon supposed. The rule alluded to by
him had been applied for to the chief baron in Chapman v. Brooks, 3
Bos. & Pull. 289, but the application was unanimously refused; the
PARTIES TO THE ACTION.
203
The Defendant-Limited Partnership.
The plaintiff cannot, in an attachment against a special
partner, take possession of or interfere with the property of a
limited partnership of which he is a member.' For the same
¹ Harris v. Murray, 28 N. Y. 574.
court all saying the question belonged to a court of equity; that they
had no power to take an account; and that the sheriff had a perfect
right to go on and sell. Lord Alvanley said he hoped that would be the
last application of a similar kind. [See two like cases before that in
the same book, pp. 254 and 288.] Chambre, J., mentioned that in
Eddie. Davidson no objection was made to the sale; but there was
merely an application for a share of the proceeds after sale; and no
objection to the motion by the party levying. In Parker v. Pistor, 8
Bos. & Pull. 288, 289, the court said all the difficulties were to be
encountered in equity, the case being plain at law. The safest line of
conduct for the sheriff to pursue was to put some person in possession
of the defendant's share as vendee, leaving him and the parties
interested to contest the matter in equity, where a bill might be filed
stating that he had taken possession of the property, and praying that
it might not be disposed of until all the claims were arranged.' This
appears to be the approved practice in Connecticut. Witter v. Rich-
ards, 10 Conn. R. 87, 43, per Williams, J., who cites and approves the
direction in Parker v. Pistor.
"But admitting that this court would interfere on a non-enumerated
motion, that would be but equivocal evidence at best that the lien in
question is of a legal character. Such a motion is very often in prin-
ciple the mere substitute of a bill in equity. There are divers cases in
which courts of law have recognized and acted upon the lien when it
arose collaterally; but these present exeptions to their ordinary course.
They have not, in any instance that I can find, allowed the preference as
matter of law; but only availed themselves of an accidental relation or
condition, to apply it as the rule of equity. In all such acts they
admit themselves to be out of their natural element. We have scen
several instances already, and I will notice a few other cases, in which
the question has been considered by courts of law; some taking measured
steps, and others declining all interference. In White . The Union
Insurance Company, 1 Nott & M'Cord, 556, the defendants were
bound to pay dividends on stock belonging to a firm. The divi-
dends became due, and were declared, after the sole surviving member
of the firm had assigned the partnership effects to trustees for the pay-
ment of partnership debts, the firm being insolvent. An action was
brought to recover the dividends, and held to be sustainable in the
204
THE LAW OF ATTACHMENT.
The Defendant-Limited Partnership.
reason a limited partnership cannot, upon a firm debt, be pro-
ceeded against by attachment on account of the acts of a spe-
cial partner, as it can make no difference to general creditors
whether a special partner is a non-resident or has absconded
name of the assignees. The defendants proposed to set off a debt off the
surviving partner alone. The peculiar shape of the action and position
of the parties here, enabled a court of law to let in the equitable doc-
trine, which they did. Yet the legal doctrine is well settled, as a gen-
eral one, that where a surviving partner sues for a debt of the firm,
whatever he owes in his individual character to the defendant may be
set off. The learned judge (Bay, J.) who delivered the openion of the
court admitted this to be so, citing Mont. on Set-off, 24. Vid. also
Meader v. Scott, 4 Verm. R. 26, 29, and The same v. Leslie, 2 id. 569.
But the learned judge thought the doctrine must be confined to cases
where the firm is solvent. Yet how is that to be decided without a
general account? In Schatzill v. Bolton, 2 M'Cord, 478, the funds of a
firm were seized on foreign attachment against one of the partners for
his sole debt. The court, by Richardson, J., said it was too well settled
to be questioned that partnership property is liable to be taken in execu-
tion against one of the partners; citing some of the English cases and
our case of Mesereau . Norton. He added, the possibility of there
being liens by partnership creditors which may take away the chattel
from the purchaser, is no objection to the sale. There being a
lien on property, as by mortgage, &c., does not prevent 8 sale
subject to the lien, &c. The right against one of several partners
in virtue of a foreign attachment, forms a conspicuous head in
the American books. Knox v. Schepler, 2 Hill, 595, was the case
of a foreign attachment against a surviving partner for his indi-
vidual debt. He owned one-third of the partnership effects. The
court held that the attachment lay; but though at law he owned the
whole by survivorship, they ordered but one-third to be paid ower to the
attaching creditors. This was one-third gross, for the court refused to
take an account. Under the circumstances, however, they required the
attaching creditor to give bond, with surety, that they would abide the
event of an account as between the partnership rights, and refund in
favor of them and partnership creditors, on the principle of equitable
preference, should that be so decreed. Harper, J., said that had been
the course in Schatzill v. Bolton. Then, speaking of the one-third in
question before him, 'Can we,' he asks, 'go into an investigation of
the equities which may exist against it? Can we determine that there
are creditors of the firm having a better claim to his fund or that
upon a legal accounting with the representatives of the deceased part-
PARTIES TO THE ACTION.
205
The Defendant-Limited Partnership.
or secretes himself, for they have no manner of claim on him;
but if he is allowed to assume the powers of a general partner,
not as agent, but as partner, then he loses his statutory protec-
tion, and both he and the firm will be governed by all the
provisions and liabilities attaching to a general copartnership.
ners, the absent defendant may not be found a creditor of the firm, and
entitled to retain all he has in his hands; or indeed that there has not
been a final accounting, as the partnership seems to have been long dis-
solved ?' The inquiry was declined.
"Even the supreme court of Pennsylvania, possessing, as they are
known to do, both equitable and legal powers, decline stopping to take
an account. In M'Carty v. Emlyn, 2 Dall. 277, 2 Yeates, 190, S. C., the
money of a firm was seized by foreign attachment for the separate debt of
a surviving partner. His interest was one half. The counsel of the
garnishee moved a stay till an indemnity could be obtained against the
foreign attachment. The motion was denied, and one half the money
was ordered to be paid over absolutely to the plaintiff. M'Kean, Ch. J.,
and all the court admitted the rule in equity. But he animadverted on
the granting of such an application. He said ‘a partner may owe
separate debts, and his property may consist of partnership stock; yet, if
the objection prevails, it is impossible to conceive when the separate
creditors will be able to make that property responsible. While the
partnership continues, how shall they compel a disclosure and liquidation
of all the debts and credits of the company and even when a part-
nership is dissolved, where will the separate creditors find the inclina-
tion or the power to scrutinize and close the records of a long and com-
plicated mercantile connection? But the law is happily otherwise; for
it has been repeatedly settled here as well as in England that a partner
may be sued for separate debts; that the partnership effects may be
taken in execution and sold by moieties; and that the purchaser of the
moiety, under the execution, shall be considered as tenant in common
with the partner owning the moiety.' All this be considers proved by
the very case before Lord Mansfield, Eddie v. Davidson, now relied on
to show the contrary. The doctrine was afterwards glanced at in Knox
•. Summers, 4 Yeates, 477. A levy had been made under a fi. fa. ´for
the separate debt of one partner, and there was a subsequent levy under
a fi. fa. for the joint debt. As between these conflicting levies, the
execution for the separate debt was postponed to the other, but mainly
on the ground of fraudulent delay after the first was levied. In 1829,
the important case of Doner v. Stauffer, 2 Pennsyl. R. 198, was heard
and much considered. All the partnership effects had been levied upon
206
THE LAW OF ATTACHMENT.
The Defendant-Limited Partnership.
§ 284. The special partner not allowed to withdraw his cap-
ital. In the case of a limited partnership it must be borne in
mind that the fund placed in the firm by a special partner is
and sold under executions against two partners for their separate debts;
some against one, and some against the other. The firm was insolvent,
and one of the partners sought to have the avails for which the effects
had sold applied in payment of the firm debts, claiming that he was
answerable for the whole debts of the firm. The court held that under
the circumstances it did not lie with him to interpose; that neither he
nor his copartner had any interest remaining, nor could the joint cred-
itors claim through the partners; that all the interest, legal and equit-
able, of the latter was gone. The court examined the right aquired by
the purchaser under the separate executions. Gibson, Ch. J., in deliver-
ing their opinion, entered into a learned examination of the principle on
which the preference of partnership creditors rests, and came to the well
settled result that the execution creditor sells and the purchaser takes,
not the chattels of the partnership, but the interest of the partner incum-
bered with the joint debts; that the creditors of the firm have there-
fore no claim to the proceeds of the sale, which must consequently be
paid over to the execution creditor of the separate partner. The re-
course of the firm creditors is necessarily to the property in the hands of
the purchaser.
“Several other cases in different parts of the Union have presented
and discussed the question when it arose in the proceeding by foreign
attachment; some refusing to recognize the preference, and others go-
ing strongly to favor it, more strongly even than the South Carolina
cases. Among those denying the preference is Wallace . Patterson,
2 Har. & McHen. 463. Among those going most strongly to favor it
are Gardiner v. Smith, 12 Lou. R. (Curry,) 870; Church v. Knox, 2
Conn. R. 514; Fisk v. Herrick, 6 Mass. R. 271; Upham v. Naylor, 9 Id.
490; Barber v. The Hartford Bank, 9 Coon. R. 407; and Lyndon v. Gor-
ham, 1 Gallis. 367. The great favor generally shown to partnership
property in New England, as against a foreign attachment for the debt
of one, did not get a foot-hold without able resistance. I allude to the
dissenting opinion of Hosmer, J., iu Church v. Knox, 2 Conn. R. 522.
At most, it now stands but as an exception to the general rule. In
Lyndon *. Gorham, Story, J., said: 'I consider that the present [foreign
attachment] is a process in the nature of a bill in equity, to reach the
funds of a debtor, and subject to all the liens and equities between the
original parties; and in order to do complete justice it is necessary that
all proper parties should be before the court. (1 Gall, 870.) In the 1st
vol. of his Treatise on Equity, 625, ch. 16, § 675, he says the preference
PARTIES TO THE ACTION.
207
The Defendant-Limited Partnership.
the property of the copartnership during the period limited in
the partnership contract. The general creditors enter into
their engagements relying as much upon the existence of that
fund in toto as upon any of the tangible property of the firm.
A secret withdrawal thereof, or of any portion of it, by the
seems incapable of being enforced in any other manner than by a court
of equity: at law, he says, it is generally disregarded.
"So far the cases fully illustrate the position that in whatever form
the preference in question has been enforced, whether directly by chan-
cery or by action on motion, or by foreign, attachment, the courts have
always considered themselves as departing from strict legal right, and
administering an equity. Such also was the case of Crane v. French, 1
Wendell, 811, on non-enumerated motion. The sheriff holding two ex-
ecutions, one aguiust the firm, the other against a single member of it,
sold the common property; and this court directed him to prefer the joint
execution in the distribution. Chancery cases were manifestly cited as
authority. The only case in a court of law at all relied upon was one in
this court, evidently depending upon the same equitable principle. (The
matter of Smith, 16 Johns. R. 102.) That was the case of an attachment
under the absconding debtor act, which, like a foreign attachment, cover-
ed all choses in possession and action of the debtor; and this court took it
upon them to declare the extent to which such an attachment, founded
on the debt of an individual, should operate on the effects of his co-
partners. Under the circumstances, they ordered the partnership books,
goods, and moneys, to be restored to the copartner not proceeded against,
saying he had a right to retain them for the payment of the partnership
debts. They said the case of partners is different from that of tenants
in common of a chattel. All that is undoubtedly so in equity: and it is
evident the court speak in the light of equity, for they concede the
legal right, in the language of the cases decided under the legal rule.
The identical question before them was afterwards entertained by
Chancellor Kent on a bill in equity, Robbins v. Cooper, 6 Johns. Ch.
R. 186, though we have seen he refused to interfere with an execu-
tion in a like case. Who ever heard of a right of action growing
out of an equity? an action of trespass like the one before us, or like
Lewis . Thurber? Suppose the court had not stopped the sheriff in
Smith's case; would he have been a trespasser in selling? They said
the attachment was like an execution; yet in both the leading cases
upon execution before cited from Doug. and Bos. & Pull. the court sanc-
tions a sale; in the one giving a direction as to the proceeds, and in the
other refusing to interfere. In Smith's case, this court mentioned Fox
v. Hanbury, Cowp. 445, 449. But there the whole reasoning of Lord
208
THE LAW OF ATTACHMENT.
The Defendant-Limited Partnership.
permission of the firm, is a secret disposition of the property
of a firm; and if made for the purpose of defrauding the
creditors, the firm would be liable to an attachment as fully as
for the disposition of any of its tangible property. If the
firm is insolvent, or in danger of insolvency, it is in fact a
Mansfield, and his judgment in the case, and all the authorities cited by
him, concede the power of the sheriff to sell, and of the purchaser to
take and convert to his own use. He admits this in every shape, both
at law and in equity. Only, in the latter case, he says the vendee takes
as tenant in common, but subject to an account. No one has denied
that, since 1776. It is the law of another court, where a tenant in com-
mon always holds subject to some sort of account. But his rights at law
are not therefore the less. He may take and remove the goods and en-
joy them exclusively; but must account for the profits. If they are
partnership goods, and that known to him, equity will, under circum-
stances, also hold him to account for the full value in favor of partners,
or through them, to creditors.
"The attempt to enforce the equitable rule at law in the form of tres-
pass or trover against the sheriff proceeds under foreign attachments, in
respect to which the preference of the joint creditors has been singularly
favored. Shaver. White, before cited from 6 Munf. is one
instance. The seizure was there under foreign attachment against
one of several partners, for his sole debt, on which the cattle of both
partners were taken contrary to their consent, yet an action by both
was held not to lie. In December term, 1839, an action of a like char-
acter was heard at the suit of the partner not named in the foreign
attachment, and decided against him by the Supreme Court of Pennsyl-
vania; Morgan v. Whatmough, 5 Wharton's R. 125. This case seems
to have been well argued, and the doctrine in the New England cases
was especially urged as giving countenance to the action. Thus, whether
the action has been brought by both partners or by one, it has so far
always failed. Authority and principle are equally against it. I do not
deny that there are dicta which look like a restraint on the sheriff. In
Crane v. French, 1 Wendell, 813, it was said the sheriff does not deliver
possession. With deference, I do not see that the authorities will justify
his refusal to deliver possession, either at law or in equity, except under
the sanction of some court qualified to direct him in such a course. It
is not necessary to deny that this court may do so under special circum-
stances; though the power of this court, or even of a court of equity, to
interfere and stay execution till an account shall be taken, cannot, I
think, be sustained. It seems to me that Chancellor Kent was right in
in the case cited when he refused to stay a sale even in equity; and that
PARTIES TO THE ACTION.
209
The Defendant-Limited Partnership.
fraud upon the creditors, and the firm must be presumed to
contemplate the result of its own acts. It will be seen,
therefore, that a special partner, until the expiration of his
term, has not even the rights of an ordinary partnership cred-
itor. His hands are tied for a certain period, and he must
share the contingencies of the position in which he has volun-
tarily placed himself. His rights are in the nature of a chose
in action, maturing only at the expiration of the time limited
in the special agreement, that binds his fate to that of the co-
partnership, and are even then postponed, in case of insolvency
of the firm, until the firm debts have been paid in full.
$286. Attachments against an insolvent limited partnership.
When a limited partnership becomes insolvent, a new question
arises as to the right of attachments. There is a strong equity
which has been recognized and enforced in our courts, that the
the advice of the English common pless and other courts should be fol-
lowed; that is, to let the sheriff take his course according to his
undoubted legal right, selling the goods, and leaving the co-partners
and co-partnership creditors to their relief in equity. I know that since
the cases of Dob v. Halsey and The matter of Smith in 16 Johns. R.
and Crane v. French, an impression has prevailed that the sheriff might
be controlled by a motion; and that this court might even stop him,
and order an account. No case in any court has gone the length of say-
ing that; but it has again and again been denied; and that sort of relief
has often been refused. I remember nothing of the practice of this
court; nor do I believe that either justice or convenience calls for its
adoption. It seems to me the English common pleas were right when.
they said the conflict between suitors for joint and separate debts can be
settled by chancery alone. Creditors and partners not before the court
must be made parties, complicated accounts for years must be settled, a
large concern to be wound up, perhaps. This court has neither the
abstract power, the process, the officers, nor any of the proper
machinery, for prosecuting such a business. How is this court to decide
on motion, even whether there be a partnership or not? Be this as it
may, however, and whether we ought to interfere summarily or not, the
argument can have no bearing in favor of this novel remedy by trespass
or trover.
"My opinion is that a new trial should be granted; the costs to abide
the event."
↑
14
210
THE LAW OF ATTACHMENT.
The Defendant-Limited Partnership.
property of such a partnership, after insolvency, shall be
deemed a trust fund for the equal benefit of all the creditors
pro rata ;¹ and in case a trustee is not appointed to take
charge of the same, the court, upon the application of a creditor,
will appoint a receiver for that purpose. But notwithstanding
this equity rule, until such property becomes vested in such
trustee or receiver, it is liable to an attachment or execution in
favor of a firm creditor."
The creditor is entitled to his superior diligence and to the
satisfaction of his claim out of the firm property if he secures
a valid lien thereon before it passes to the receiver, in which
case the receiver takes only a reversionary interest in the por-
tion of the property charged by the attachment or execution.
Innes v. Lansing, 7 Paige Ch. 583; Whitewright . Stimpson, 2
Barb. 879.
• Van Alstyne v. Cook, 25 N. Y. 489.
• See Artisans' Bank ♥. Treadwell, 34 Barb. 553.
PARTIES TO THE ACTION.
211
The Defendant-Corporations.
CHAPTER XV.
THE DEFENDANT CORPORATIONS.
§ 287. Are domestic corporations liable to an attachment? It
may be asserted, as a general rule, that attachment laws apply
alike to corporations and individuals. The exceptions to this
rule are only found in New York and Delaware, where the
courts hold that foreign corporations can only be proceeded
against by attachment to the extent of the special provisions
that may be incorporated into the statute with direct reference
to such associations. This discrimination arose from two
canses. First, from the common law disability of acquiring
jurisdiction over a foreign corporation, which could only be
gained by a voluntary appearance; and second, from the fact
that, save under the Stillwell act, the grounds of attachment
related to the person of a debtor, and were inapplicable to
corporations.
§ 288. New York legislation on the point. When the pro-
visional remedy of attachment was first incorporated into the
Code the grounds of attachment were similar to those under
the Revised Statutes: absence or non-residence, absconding and
concealment; only one (non-residence) could be alleged of cor-
porporations, and this could only extend to foreign corporations,
as they are deemed residents, for the purposes of jurisdiction,
of the State which created them, without power to change
¹ See McQueen . Middleton Manuf. Co., 16 Johns. 5; Western Bank
v. City Bank of Columbus, 7 How. 238; Cumberland Coal Co. . Hoff-
man Steam Coal Co., 80 Barb. 159; affirming 8 Abb. 243; Vogle v. New
Granada, etc. Co., 1 Houston (Del) 294.
212
THE LAW OF ATTACHMENT.
}
***
The Defendant-Corporations.
their domicile of origin. Foreign corporations were, there-
fore, expressly included within the provisions of the statutes.
In 1857 the Code was amended by extending the grounds of
attachment to the fraudulent disposition, removal, or conceal-
ment of property. This provision applied to corporations as
well as individuals, for while a corporation cannot conceal
itself, being a mere entity and intangible, it may conceal its
property or dispose of it for the purpose of defrauding its
creditors. The amendment to section 227, creating this new
provision, to expressly carry out the rule in its full application,
was extended to any corporation or person who shall be guilty
of the acts therein specified.
§ 289. The case of American Glass Silvering Co. But the
Superior Court, at Special Term, in the case of Ferner v. The
American Glass Silvering Co., decided that domestic corpora-
tions, although seemingly included within the terms of section
227, as amended, could not be proceeded against by attachment
for the reason that the provisions of that section are qualified by
those of section 229, which limit the proof necessary to obtain
the order to the case of natural persons and foreign corpora-
tions, and that both the literal reading and the fair interpreta-
tion of the two sections taken together is that foreign
corporations, only, were intended to be subjected to the law of
attachment in actions. The effect of this decision, so far as it
applies to New York State, has been nullified by the New
Code, which provides for attachments against domestic cor-
porations in case of property frauds. But as the Old Code pro-
visions are still retained in some of the states where this
decision is cited, I shall consider it in extenso.
§ 290. There are many serious objections to this construc-
tion of the Code, and I doubt very much whether it would be
sustained by the Court of Appeals. In the first place, by an
unbroken chain of decisions, with this exception, the courts of
this country have held that domestic corporations are included
within the statute, without any special provisions for that pur-
PARTIES TO THE ACTION.
213
The Defendant-Corporations.
pose. And in the second place, I submit that by both the
literal reading and the fair interpretation of the Code, domestic
corporations are specially included within the provisional
remedy of attachments. The contrary opinion by the court
in this case is founded upon two distinct theories. First, be-
cause they are not included within the provisions of section
227; and second, because they are not mentioned in section
229. The learned judge excludes them from the terms of sec-
tion 229 because the term "corporation" in the concluding
clause is specially designated as such corporation, and that the
word "such" refers to the term "foreign" in the first clause
of the same section, under the original provision in relation to
"foreign corporations."
Let us look at the circumstances under which this term was
inserted, and we shall see that the reference was made to an-
other section of the Code. In 1857, as we have before stated,
the legislature amended section 227. The amendment was the
insertion of the following clause: "Or whenever any person
or corporation is about to remove any of his or its property
from this State, or has assigned, disposed of, or secreted, or is
about to assign, dispose of, or secrete, any of his or its property
with intent to defraud creditors, as hereinafter mentioned."
This created a new and distinct ground of attachment, and ex-
tended the right to any corporation or person; but in order to
perfect the application of this clause they inserted, at the same
time, in section 229, an additional clause in relation to the proof
in such cases, in these words: "or that such corporatim or
person has removed or is about to remove any of his or its
property from this State, with intent to defraud his or its
creditors, or has assigned, disposed of, or secreted, or is about
to assign, dispose of, or secrete, any of his or its property with
the like intent, whether such defendant be a resident of this
State or not." This clause was only inserted for the purpose
of carrying out the provision of the preceding clause in sec-
tion 227. "Such corporation or person," therefore, means
"any corporation or person" that has dore or is about to do
any of the things specified in section 227, or more particularly
•
214
THE LAW OF ATTACHMENT.
The Defendant-Corporations.
described in section 229, to which the former section refers, by
the phrase "as hereinafter mentioned." The term "such cor-
poration," as used in this sense and for this purpose, has no
possible connection with the term "foreign corporation" to
which the court assigned it, as such a construction would create
a specific right to proceed against foreign corporations in cer-
tain cases, where the legislature had previously given that right
under all circumstances. The fact of their being foreign cor-
porations was already a ground of attachment in itself.
But the term "such corporation" must of necessity refer
either to the term "foreign corporation," or to the preceding
term "any corporation." It cannot refer to the term "foreign
corporation," as the clause reads, "such corporation or person,
etc., whether such defendant" (i. e., corporation or person) "be
a resident of this state or not." A foreign corporation cannot
be a resident of this state, it is peculiarly a permanent non-
resident, having a fixed domicil at the place of incorporation,
without power of changing it.' The term must, therefore,
refer to the term "any corporation," and include either foreign
or domestic corporations, and either resident or non-resident
persons.
Again, it is manifest from a comparison between sections
227 and 229, that the latter was only drawn for the purpose
of carrying out the provisions of the former, and that each
separate clause of the latter was framed for the purpose of
carrying out the provision of the corresponding clause in the
¹ Drake on Attachments, § 80; Harley. Charleston Steam Packet
Co., 2 Miles (Pa.) 249; South Carolina R. R. Co. v. McDonald, 5 Ga.
531; Day v. Newark I. R. Manuf. Co., 1 Blatchf. 628; Mineral Point
R. R. Co. v. Keep, 22 Ill. 9. In Merrick v. Santvoord, 34 N. Y. 208,
the Court of Appeals held that a corporation is an artificial person and
has no dwelling, either in its office, depots, or its shops. Its domicile is
the legal jurisdiction of its origin, irrespective of the residence of its
officers or the place where its business is transacted. And that a cor-
poration cannot migrate from one sovereignty to another, so as to have
a legal, local existence within the latter sovereignty (p. 220). See, also,
to the same effect, Stevens . Phoenix Ins. Co. of Hartford, 41 N. Y.
*
149.
PARTIES TO THE ACTION.
215
The Defendant-Corporations.
former section; and consequently, in construing the latter sec-
tion we must connect each portion, clause by clause, with the
similar portion of the former section, the same as if each cor-
relative clause in both sections were in fact connected, forming
one distinct clause. Thus the first clause in section 229 speci-
fies that "the warrant may issue whenever it shall appear by
affidavit that a cause of action exists against such defendant,
specifying the amount of the claim and the grounds thereof."
Construing this without the aid of the corresponding clause in
section 227, we should be forced into the construction that an
attachment will lie whenever a cause of action exists, whatever
may be its nature; but by connecting it with the preceding
clause it is restricted to "actions arising on contract," etc. So
the term "foreign corporation," immediately following, has
been held by the courts to refer directly to, and be governed
in its extent and meaning by, the corresponding phrase "a
corporation created by or under the laws of any other state,
government or country," contained in section 227. Carrying
out this principle to its legitimate end, the concluding clause
in section 229, in relation to the disposition of property by
persons or corporations must be explained and governed by the
corresponding clause in section 227, and not by other portions
of the same section.
§ 291. The second ground on which the court based its de-
cision grew out of the peculiar construction of section 229 of
the Code, which provides for the dissolution of the attachment
"if the foreign corporation, or the absent, or absconding, or con-
cealed defendant, recovers a judgment," etc. It will be seen
that the term foreign corporation, only, is employed in desig-
nating the party defendant, but if domestic corporations must
be excluded on the principle of expressio unius, then non-
residents and persons who have disposed of, or are about to
dispose of, secrete, etc., their property, must also be excluded
from the provisions of the statute, as they are not specially
¹ Bowen ♥. The First National Bank of Medina, 34 How. 408.
216
THE LAW OF ATTACHMENT.
The Defendant-Corporations.
mentioned here. When we look at the origin of this section
the explanation becomes exceedingly simple. At the time it
was drafted, the right of attachment only extended to the case
of foreign corporations and absent, absconding, and concealed
debtors. As the other changes were gradually perfected in
sections 227 and 229, the peculiarity of this section was over-
looked or disregarded, as it was sufficiently apparent that the
attachment debtor was designated in any event by the terms
of the section.
§ 292. In the construction of statutes we should, if possi-
ble, carry out the cardinal principle that, of two constructions,
that which gives effect to all the words used, taken in their
ordinary sense, must be adopted. Here two constructions are
presented; the one makes the terms of one section so repug-
nant to those of another as to render some of its terms and
provisions entirely inoperative. The other gives effect to
every word used in both sections according to their general
acceptation and usage. The latter construction should there-
fore prevail. "It is an established rule in the exposition of
statutes," says Chancellor Kent, "that the intention of the
lawgiver is to be deduced from a view of the whole and every
part of a statute taken and compared together. The real in-
tention, when accurately ascertained, will prevail over the
literal sense of the terms, scire leges non hoc est verba earum
tenere sed vim ac potestatem, and the reason and intention of
the lawgiver will control the strict letter of the law when the
latter would lead to palpable injustice, contradiction, or ab-
surdity." The Code is one whole statute, intended to provide
a complete system of remedies for the enforcement of the
rights of parties. Its different sections reflect light upon each
other, and we should fall into serious errors did we not com-
pare together its various provisions in arriving at its proper
construction.*
Looking, then, at both sections, 227 and 229, we see that
ܕ
11 Kent, 461, 462.
* Barnes. Buck, 1 Lans. 268, per Lamont, J.
PARTIES TO THE ACTION.
217
The Defendant-Corporations.
the legislature, by a separate amendment, inserted a positive
provision for attachment in certain cases against "any" corpo-
ration, as distinguished from the previous provision in relation
to a "6
foreign" corporation. To make the intention more
plain and positive, they inserted at the same time the words
"or corporation" after the word "person," in the concluding
portion of the same section. Now this was a separate, distinct,
and affirmative act of the law-makers, and, as such, is an emphatic
expression of their intention, which must control the strict
letter of the law in the latter section, if it would otherwise
lead to a palpable contradiction of such an intention.
I am therefore of the opinion that domestic corporations
are expressly included within the provisions of the statute.
§ 293. Corporations included in the terms "persons" and
“inhabitants.” But even if the Code was silent as to corpora-
tions, the word "person" would include them within its terms.
It is a well established rule of statutory construction, both in
this country and England, that corporations are to be deemed
and considered as persons where the circumstances in which
they are placed are identical with those of natural persons
expressly included in a statute.' We have seen that the pro-
visions of the attachment law in relation to the disposition of
property apply to corporations the same as to natural persons;
it follows, therefore, under the foregoing rule that they are
included within the terms of the statute.
Again, it is a well-settled rule of law in this State, and in
the national courts, that a corporation created by and transact-
ing business in a State is to be deemed an inhabitant of that
State.' “It is also held,” says Judge Mason, in delivering the
opinion of the Court of Appeals, in Stevens v. Phoenix Ins.
Co., "that where a corporation is created by the laws of a
¹ See South Carolina R. R. Co. v. McDonald, 5 Ga. 531, and cases
cited.
* Stevens v. Phoenix Ins. Co., 41 N. Y. 149; Marshall v. Baltimore
& Ohio R. R. Co., 16 How. (U. S.) 814; Covington Bridge Co. v. Shep-
herd, 20 Id. 227, 232.
A
218
THE LAW OF ATTACHMENT.
The Defendant-Corporations.
state the legal presumption is that its members are citizens of
the State in which alone the corporate body has a legal exist-
ence, and that a suit by or against a corporation in its corporate
capacity must be presumed to be a suit by or against citizens
of the State which created the corporate body." And Chief
Justice Marshall, in Bank of United States v. Deveaux (5
Cranch, 90), held that a corporation, though an invisible, in-
tangible thing, for the purpose of bringing or defending suits,
and for the purpose of jurisdiction, "being composed of per-
sons, is to be considered a person." The constitution of 1846
(art. 8, § 3) declares that corporations shall have the right to sue,
"and shall be subject to be sued in all courts, in like cases as
natural persons.” The intention here is undoubtedly to
place corporations and natural persons, in respect to suits, and
all the remedies growing out of suits, on precisely the same
footing. This, taken in connection with the foregoing decis-
ions, authorizes an attachment against corporations whenever
it will issue against a person.
§ 294. Foreign corporations. The Code contains a special
provision, as we have seen, in relation to foreign corporations.
The circumstances under which an attachment may issue
against them are fully explained under the head of “ Foreign
Corporations,” in Chapter VIII.
§ 295. Effect of special provisions infra, regulating corpora-
tions. It may be well to discuss briefly the question as to how
far the special provisions contained in the charter of incorpo-
ration will protect a corporation against the general provisions
of the attachment law.
Where a legislature specially authorizes a foreign corpo-
ration to exercise certain powers within the State granting such
authority, and declares that it shall be entitled to all the privi-
leges, rights, and immunities conferred upon it by the law of
its incorporation, its property cannot afterward be attached
as a foreign corporation in such State, for the reason that an
attachment would not lie on that ground in the State where
PARTIES TO THE ACTION.
219
The Defendant-Corporations.
incorporated. Here the special powers govern the general
law.
§ 296. In domestic corporations. This principle must al-
ways govern in the case of domestic corporations, as the special
privileges granted by the legislature are construed as a contract
between the corporation and the State; and any subsequent
act conflicting with such authority is unconstitutional and void.
So, in the case of corporations organized under national laws,
the privileges are granted by a superior power, and must be
respected in all State courts."
$297. In foreign corporations. In attachment suits against
corporations chartered by a foreign country or sister State, à
different question presents itself. On the one hand, it may be
urged that their charter constitutes a contract, and its provisions
must be respected by foreign courts, under the lex loci con-
tracto. On the other hand, it may be well said that a corpora-
tion is simply a creature of the statute, and the power that
created could give it no rights beyond its own jurisdiction;
that it has, in fact, no rights within the limits of a foreign
State except such as by courtesy and the laws of such State it
may be entitled to.' I consider that a corporation that trans.
acts business in a foreign State owes the same duties to the
laws of such State, and is subject to all its provisions and
penalties to the same extent, as an individual placed under the
same circumstances. The contract with a corporation is the
same in effect as that which the law extends to all its citizens-
protection in the enjoyment of specified privileges within its
own territory, in consideration for fealty and obedience. This
¹ Martin ». Mobile & Ohio R. R. Od., 7 Bush (Ky.) 116.
* Const. U. S., Art. VI., § 2; Ableman ». Booth, 21 How. (U. S.) 517,
520.
* In the case of Bank of Augusta . Earle, 18 Peters (U.S.) 519; the
court held that a corporation can have no legal existence out of the
bounds of the sovereignity by which it is created; that it exists only in
contemplation of law, and by force of law; and when that law ceases to
operate, the corporation can have no existence. To the same effect, see
Ohio and Mississippi R. R. Co. v. Wheeler, 1 Black (U. S.) 286.
220
•
THE LAW OF ATTACHMENT.?
The Defendant-Corporations.
protection for commercial purposes cannot in
any farther than the power that granted it.
are equally governed by all the laws of the
which they voluntarily place themselves. •
either case extend
Beyond that they
government under
§ 298. Same liberal construction. But the charter or gen-
eral provisions under which a corporation is organized usually
receives a very liberal construction when it would otherwise
conflict with the application of the ordinary remedies provided
by the statutes against corporations in general. Thus, under
section 57 of the act of Congress of June 3, 1864, known as
the “National Banking Act," which enacts" that suits, actions
and proceedings against,any association under this act may be
had in any circuit, district or territorial court of the United
States held within the district in which such association may
be established, or in any state, county or municipal court in
the county or city in which such association may be estab-
lished," the court held that the provision was not restrictive,
and that such bank may also be sued in the state courts out of
the county in which it is established, under the general pro-
vision in section 8, declaring that it "may sue and be sued,
complain and defend in any court of law or equity, as fully as
natural persons."
§ 299. Insolvent corporations. This question or supremacy
sometimes arises in the case of insolvent corporations. There
is in most states a provision in regard to the winding up of
corporations that have become unable to pay their debts in
full, in pursuance of which receivers or trustees are appointed
specially, or named by the general law, who shall take charge
of the property of such corporations, and divide it pro rata
among all the creditors. This provision would seem to con-
flict with the rights of creditors under the attachment laws,
and prevent an attachment for the personal benefit of the
attaching creditor.
This point was raised and strenuously insisted upon by
¹ See § 147, infra.
PARTIES TO THE ACTION.
221
The Defendant-Corporations.
the counsel in the case of First National Bank of Selma
v. Colby.' The rule was there adopted, by a divided court,
that an attachment cannot be dissolved, dismissed or abated, or
the levy quashed, because the corporation (a National Bank)
had committed an act of insolvency before the institution of
the attachment suit, although its charter was subsequently
dissolved by the United States Courts on account of such in-
solvency.
The same question presented itself in Pennsylvania, in an
attachment suit against a domestic corporation that had been
insolvent for years, and its income received by a trustee and
applied pro rata to the payment of the debts. The fund thus
accumulating for a future dividend was the subject of the
attachment for the sole benefit of an individual creditor. The
court upheld the attachment.*
But an attachment will not lie after the insolvency works
a dissolution in fact, or where the surrender of the charter has
been accepted by the state, or it has been dissolved by act of
law, or by any other means becomes extinct, as a matter of
fact, any more than it will lie against a natural person after
his death.'
146 Ala. 435. See also, § 148, infra.
'Reed v. Penrose, 2 Grant's (Pa.) Cases, 472.
'See Paschall v. Whitsett, 11 Ala. 472, and First National Bank of
Selma . Colby, 46 Ala. 435. As to the property subject, to levy of
attachment or execution in such cases, see Chapter XVII.
222
THE LAW OF ATTACHMENT.
Associations and Stockholders.
CHAPTER XVI.
ASSOCIATIONS AND STOCKHOLDERS.
SECTION 300. Having treated of the remedy by attach-
ment against partnerships and corporations, we come now to
speak of unincorporated associations which are, in a certain
strict sense, neither partnerships nor corporations, yet hav-
ing many of the attributes of both.
§ 301. Joint stock companies may be designated as associ-
ations composed of seven or more individuals jointly interested
in the transaction of business, having all the attributes of cor-
porations except a common seal;* and all the liabilities of part-
nerships, unless protected by special statute."
For the purpose of convenience the capital stock invested
in the business is usually divided into certain specific parts or
shares, the interest of each member being determined by the
number of shares held by him. The management and control
of the organization, and sometimes its entire property, is vested
¹ Waterbury v. Merchants' Union Express Co., 50 Barb. 157; 8. C.,
8 Abb. N. S. 163; and they are taxed as corporations, Sandford .
Supervisors of N. Y., 15 How. Pr. 172.
• Witherhead v. Allen, 4 Abb. Court of Appeals, 628; 8. C., 8 Keyes,
562; Kingsland v. Braisted, 2 Lans. 17; Witherhead v. Allen, 28 Barb.
661, 667; Williams v. The Bank of Michigan, 7 Wend. 539; Robbins v.
Butler, 24 Ill. 387; Tenney v. The N. E. Protective Union, 87 Vt. 64;
Gorman v. Russell, 18 Cal. 688; Vigers v. Sainet, 18 La. 800; Tappan «.
Bailey, 4 Metc. 585; Babb v. Reed, 5 Rawle, 151; Attorney General v.
Heelis, 2 Sim. & S. 67; Lloyd «. Loaring, 6 Vesey, 773; Carlen v. Drury,
1 Vesey & Beames, 154, 157; Parsons on Contracts, 541.
PARTIES TO THE ACTION.
223
The Defendant-Joint Stock Companies.
in a board of directors, and the contracts made by them are
executed under the hand of the president and secretary ap-
pointed from their number, and upon whom, by virtue of the
statute, all original process must be served. All of these
powers, though partaking of the nature of corporations, are
not repugnant to the rights of any ordinary copartnership.
There are some qualities, however, that enure to these associa-
tions which are not possessed by partnerships. Thus, the
death of a stockholder, or the transfer of a member's stock
does not work a dissolution. The assignee of stock is not, in
fact, a partner until he has been recognized by the issuance to
him of a new certificate. But he succeeds, in any event, to all
the property rights of the assignor, and he may perhaps be
subject to all his liabilities, under the rule appertaining to the
assignment of stock in an insolvent corporation.
§ 302. How sued under the statute. Formerly, in this state,
unincorporated associations were sued in the name of all their
members, as in the case of ordinary copartnerships.' This diffi-
culty was removed by the act of 1849, to which an amendment
was added in 1853, to the effect that suits against joint stock
companies must be prosecuted, in the first instance, against the
company. For this purpose the organization is considered as
a legal entity, the service being made upon the president or
treasurer, and the judgment entered against the company-as
a company, and binds the effects of the association only. Upon
the return of execution unsatisfied, in whole or in part, it is to
be treated as an ordinary copartnership, and a new proceeding
must be commenced against the stockholders upon the original
demand, which has all the attributes of an ordinary suit against
a copartnership."
¹ See § 1919 of the new Code, which is substituted for chapter 258,
Laws of 1849.
* Kingman ⚫. Spurr, 7 Pick. 235, 288; Murray v. Bogert, 14 John. 818;
Marquand . N. Y. Manufacturing Co., 17 Id. 535.
• James . Woodruff, 9 Den. 574.
• Laws of 1858, p. 288, Robbins v. Wells, 26 How. 15.
• Witherhead v. Allen, 8 Keyes, 562; S. C., 4 Abb. Ct. of App. 628.
224
THE LAW OF ATTACHMENT.
•
The Defendant-Associations,
$303. Associations other than joint stock companies. By the
act of July, 1851, service could be made on the president or
secretary of any association of seven or more individuals who
were owners of, or had an interest in, any property, right of
action or demand, jointly or in common, or who might be
liable to any action on account of such ownership or interest.'
The amendment of 1853, to the act of 1849, in relation to
joint stock companies, did not apply to this act, and the pro-
visions for suit against such associations in their joint capacity
is merely cumulative. They may, as before, be proceeded
against as partners, if their liability is joint; or against the in-
dividuals personally chargeable, if their interest is several.'
§ 304. Charitable and social organizations. The members
of a charitable, political or social organization are not co-
partners. The remedy is against their joint property, under
the act of 1851, or by a separate suit or attachment against the
members who have expressly assented to the incurring of the
obligation upon their individual liability.' In either case the
entire property may be attached, taken into possession, and
sold. The sale, however, will only convey the interest of the
parties served in the property of the association where suit is
not commenced against it by service on its officers; and the
association may, by service on its officers, under the statute, be
united with the suit against the members generally, or in their
joint capacity; in which case the entire property of the asso-
ciation may be attached and sold, and also the individual prop-
erty of the parties charged, who are each personally liable for
See, also, Wells v. Gates, 18 Barb. 554; Cross v. Jackson, 5 Hill, 478,
480; Townsend v. Goewey, 19 Wend. 424.
¹ Laws of 1851, p. 838; Waller v. Thomas, 42 How. 337.
• Waller v. Thomas, supra.
* So held in a proceeding against certain members of a social club
known as "The City Club" for rent, Waller . Thomas, Id. See, also,
Matter of St. James Club, 2 De Gex, Macnaghten & Gordon, Ch. R.
888. That they are not copartners, see Parsons on Partnerships, 42, and
cases cited, note b.
PARTIES TO THE ACTION.
225
!
The Defendant-Associations.
the entire indebtedness of the association, accruing by their
express assent.
§ 305. Former distinction between joint stock companies and
"associations." Formerly the liabilities of joint stock compa-
nies, and other associations, were, in their enforcement, distinct
and separate, the distinction between these organizations being
as follows: They were deemed joint stock companies if, as
a matter of fact, their capital was represented by "joint stock,”
and the interest of each member was represented by certain
specific shares thereof; otherwise, they were considered mere
partnerships or associations. Joint stock companies, properly
speaking, might be composed of less than seven members; but
in that case, for the purposes of suit against them, they would
be treated as partnerships. Since the adoption of the last
thirteen chapters of the New Code, and the repealing acts
connected therewith, all distinction between unincorporated
associations composed of seven or more members, so far as ac-
tions or proceedings at law are concerned, has been obliterated.
The acts of 1849 and 1851 have been repealed, and in their
place section 1919 of the New Code provides that a partner-
ship, or other company of persons, consisting of seven or more
members, and which has a president or treasurer, shall be
deemed an 66
association," and may sue or be sued in the name
of either of these officers in respect to the property owned or
claimed by them jointly or in common, or their liability there-
for jointly or severally. Section 1923 provides that this
right does not prevent an action from being brought by or
against all the members of the association; but an election of
which remedy to pursue must be made, as both cannot be
entertained at the same time.'
$306. Application of attachments to unincorporated associa-
tions. The remedy against associations sued in their repre-
sentative capacity is, as we have seen, twofold the suit
against the organization as a body, to reach the joint property,
¹ See sections 1922 and 1923, Code of Civil Procedure.
A
15
226
THE LAW OF ATTACHMENT.
The Defendant-Joint Stock Companies.
and, secoud, against the individual members, to reach their
separate estate. Necessarily the remedy by attachineut must
assimilate to the character of the procedure. In its first stage
the principles pertaining to attachments against corporations,
and, in the second, those pertaining to partners, will generally
be found applicable.
§ 307. What constitutes non-residence in such cases. In
the original suit there is this distinction to be drawn between
corporations and associations: the residence of a corporation
being founded upon a statute, it is considered a resident of the
state where it was created, but a joint stock company, being
founded upon contract, its residence is determined either from
its main place of business or the residence of its officers or
directors. I am not aware that the question of residence has
ever been passed upon; but as the reason for attachments
against non-residents is grounded upon the failure of service
of the ordinary process, and as the summons must in the first
instance be served upon the president or treasurer, for the
purposes of attachments, the questions of residence must turn
upon the relations of those officers to the forum where the suit
is commenced. If the president and treasurer reside, and their
official business is transacted, in another state, the company
may fairly be termed a non-resident, although all its property
is situated and business transacted (except such as pertains to
the head office of the company) in this state, and all the rest
of the stockholders are residents therein, for the simple reason
that under the statute service could not be made upon the
company in the ordinary manner. But whether the personal
residence of such officers may be taken into account when the
action is brought against them in an official capacity, and their
official residence or head business office is within this state, is
a more difficult question to solve. I am inclined to the opin-
ion that the place where the officers of the company usually
meet to transact their official business may be designated as
the domicil of the company in respect to suits by or against
them.
PARTIES TO THE ACTION.
227
The Defendant-Joint Stock Companies.
§ 308. The effect of an attachment against a stockholder,
for his individual debts. The only other question that needs to
be considered is the effect of an attachment against a stock-
holder of the company upon his individual liability. We have
seen that the sale of a stockholder's interest or stock does not
create a dissolution of the company, and that the grantee
acquires all the property interests of the grantor therein. The
same rule applies in a sale under an execution; but an attach-
ment or execution creditor can acquire no greater rights than
the debtor held, and cannot therefore be permitted to seize or
control the company's effects, as that right is vested solely in
the trustees. The courts are bound under such circumstances
to recognize the legal entity of the association, as the rights of
the partners or stockholders, as between themselves, are affected
by the proceeding. The most the officer can do is to attach
the stock or interest that the debtor holds in the company; and
upon a sale thereof under execution the court might, upon
application, require an account and settlement so far as to
ascertain his rights and the value of his share; but the grantee
could not acquire any particular thing in specie, nor force a
division of the partnerships effects, nor a sale of the entire
property, if a fair equivalent for his ascertained share were
offered in money.'
The rights acquired by an attachment creditor may gener-
ally be ascertained by an examination of the by-laws of the
company, as they are the same as that of a stockholder, with
the exception of a right to the future profits, which strictly
follows the partnership interest, and depends upon the consent
of the company.
§ 309. Stockholders of a corporation. In this state there
is no distinction in principle between the liability of the mem-
bers of a joint stock company and that of stockholders of a
corporation in which they are individually liable for the debts
of the company. Unless remedied by statute, the liability is
¹ See Parsons on Partnership, 546; Mason v. McConnell, 1 Whart. 881;
Putnam v. Wise, 1 Hill, 234; Kingman v. Spurr, 7 Pick. 235, 288.
鼻
​228
THE LAW OF ATTACHMENT.
1
The Defendant-Stockholders.
direct and immediate, and an action will lie against the stock-
holders as soon as the cause of action arises.'
The liability in some of the states is held to be that of a
guarantor or surety, on the part of each stockholder, and is
therefore several.' This notion has been repudiated in this
state, and stockholders under such circumstances are now
charged as copartners. But as, in the case of joint stock
companies, such liability is postponed until the inability of the
corporation to pay has been tested by the return of an execu-
tion unsatisfied, their liabilities may therefore be enforced
in the same manner as those of a joint stock company; first,
by attachment under the laws pertaining to corporations;
second, by attachments against the stockholders under the
laws applicable to similar proceedings against copartners.*
The rule in respect to foreign corporations is different.
Where, by the charter or laws of the state where incorporated,
stockholders are made personally liable, they may be proceeded
against severally in this state, in the first instance by indi-
vidual attachments, without alleging a previous suit against
the corporation or its insolvency, the remedy being immediate
and direct.
'Davidson v. Rankin, 84 Cal. 503; Southmayd v. Russ, 8 Conn. 52;
Allen v. Sewall, 2 Wend. 827; Perkins v. Church, 81 Barb. 84.
* Pratt ». Bacon, 10 Pick. 123; Dennis ♥. Table, &c. Co., 10 Cal. 869.
• Corning v. McCullough, 1 Comstock, 47; Moss v. Averell, 10 N. Y.
449.
• Perkins v. Church, 81 Barb. 84.
→
PROPERTY SUBJECT TO ATTACHMENT. 2-29
Personal Property.
CHAPTER XVII.
PERSONAL PROPERTY.
A
SECTION 310. Attachment applicable to property subject to
levy and sale under execution. As the sole object and aim of an
attachment is to acquire and hold a lien upon property until it
can be finally taken on execution in the same action, it follows
that only such property should be attached as can be lawfully
made subject to execution. In other words, the anticipatory
levy by attachment, should be governed by the rules applicable
to the final levy under execution. In one respect, however, an
attachment goes farther than an execution; it extends beyond
au
the tangible property to which the latter is confined, and seizes
the accounts due to and property held for the debtor. In this
respect it is equivalent to both an execution and the creditor's
suit founded upon the return thereof unsatisfied. But in
respect to tangible property, real and personal, in the possession
of the debtor, the rule is general, that an attachment will
affect such property, and such only, as may be levied upon and
sold under execution.' In considering this subject we will
cite the rules of law relating to either attachment or execution,
the same being generally applicable to both writs.
§ 311. Attachment covers all property the debtor could dis-
pose of It is a well recognized rule of law that whether prop-
erty is subject to a levy depends upon whether the debtor
could legally transfer it to another; for all things assignable,
¹ Goll D. Hinton, 8 Abb. 120; Patterson v. Perry, 10 Abb. 82: Smith
♥. Orser, 42 N. Y. 132, 139; Handy v. Dobbin, 12 Johns. 220; Pierce
®. Jackson, 6 Mass. 242; Parks o. Cushman, 9 Vt. 820; Spencer v. Blais-
dell, 4 N. H. 198; Myers o. Mott, 29 Cal. 859; Davis v. Garret, 8 Iredell,
459.
280
THE LAW OF ATTACHMENT.
Personal Property-What is not subject to levy.
except those exempted by statute, may be levied on attachment
and sold on execution.' The court, in the case of Handy v.
Dobbin (12 John. 220), states the rule thus: "It appears to
us to comport with good policy, as well as justice, to subject
everything of a tangible nature, excepting such things as the
humanity of the law preserves to the debtor, to the satisfaction
of a debtor's debts." To this rule there are, however, several
exceptions, which may as well be noted at this point.
§ 312. Copyrights and Patents, being protectory rights and
preservative of the creations of a person's brain, the law shields
them for his exclusive benefit. They certainly constitute prop-
erty, and capable, as such, of being transferred from one to
another; but the assignment must be purely voluntary. They
cannot be reached by levy, and thus forced to be applied to
the payment of debts. The reason given by the U. S. Supreme
Court for this rule, in the leading case of Stephens v. Cady,' is
that they are intangible rights, and, as such, not subject to a
levy. In a later case, in the same court, the rule is based on the
ground that such property is incapable of a situs.*
"It may
be added,” said the court in the latter case, "that these in-
corporeal rights do not exist in any particular state or district—
that they are co-extensive with the United States. There is
nothing in any act of congress, or in the nature of the rights
themselves, to give them locality anywhere so as to subject
them to the process of courts having jurisdiction limited by
the lines of states and districts. That an execution out of the
Court of Common Pleas for the county of Bristol, in the state
of Massachusetts, can be levied on an incorporeal right sub-
sisting in Rhode Island or New York will hardly be pre-
tended. That by the levy of such an execution the entire
¹ Coombs ♥, Jordan, 8 Bland, Ch. 284; Turner ». Fendall, 1 Cranch,
117; Robb v. Beaver, 8 W. & 8. 107; French v. Mehan, 56 Penn. St.
286; McCurdy v. Canning, 64 Id. 89; Twinan e. Swart, 4 Lans. 283.
14 How, (U. S.) 528.
• Stevens v. Gladding, 17 How. (U. 8.) 447.
PROPERTY SUBJECT TO ATTACHMENT. 231
Personal Property-What is not subject to levy.
right could be divided, and so much of it as might be exercised,
in the county of Bristol sold, would be a position subject to
much difficulty." This reasoning would, of course, only apply
to process issued out of the local or state courts.
§ 313. Models and materials for patents and copyrights.
While there can be no doubt as to letters-patent, or copyrights
considered distinct from the articles to which they pertain,
a more difficult question arises, whether the models in the
one case, or the manuscripts in the other, forming the subject
of a proposed patent or copyright may be attached; or whether,
after granting of the right, the property to which it is attached,
and which no one else has the power to appropriate, ase, or
dispose of, may be attached and sold by the sheriff on execu-
tion. Herman, in his work on executions,' states that manu-
scripts secured by copyrights, or which are the subjects of
copyrights, may be levied upon and sold under execution; but
the authority cited by the learned author,' to establish the
position, is well stated by Mr. Freeman to be no authority on
either side of the question. In regard to such property, prior
to the granting of government protection thereon, it may be
said that there is nothing to distinguish it from other chat-
tels, without it comes within the principle hereinafter con-
sidered, that no property can be attached the sale of which
would produce a great sacrifice or injury to the debtor without
materially benefiting the creditor. As in the case of uncopy-
righted manuscripts, the real value lies not in the papers, but
in the right of the author to the exclusive benefit thereof,
which right could not be secured by a purchaser at sheriff's
sale. It would seem to follow that such property would be pro-
tected from levy and sale under the foregoing rule. A differ-
ent rule applies after protection has been granted.
§ 314. Patented manufactured articles including machinery
may be sold at sheriff's sale, and the purchaser will be pro-
¹ Herman on Executions, p. 145.
⚫ Banker v. Caldwell, 3 Minn. 94.
282
THE LAW OF ATTACHMENT.
Personal Property-What is not subject to levy.
tected in the right of use attached thereto.' But the sale of
the materials for the manufacture of such machines will not
convey to the purchaser any right to the use of the machines
subsequently made therefrom in the manner pointed out in
the patent. The true theory of these distinctions appears to
be this: Where the owners of a patent or copyright have com-
pleted an article for the use of the public, and have once offered
the same for sale, they impliedly release all their interests in
the same to the purchaser, whether the actual sale is forced or
voluntary; but until that time all rights therein are reserved.
It is on this principle that the courts hold that the sale of the
unfinished article, or of the materials, by the sheriff, will not
render him liable for infringement.' As no incorporeal rights
passed to the assignee, no infringement of such rights existed.
In regard to copyrights, it has been held that the sale of a
copper-plate for a map, on a levy against the property of the
owner of the copyright thereof, will not pass to the purchaser
a right to print maps from the plate. The plate and the
copyright are held to be altogether independent, having no
necessary connection whatever. The copyright is an exclusive
right to the multiplication of the copies, for the benefit of the
author, disconnected with the plate or any other physicial
existence. It is an incorporeal right, "a property in notion,
and has no corporeal tangible substance;" while the engraved
plate and press are but the mechanical instruments, or means
by which the copies are multiplied. Even a transfer of the
manuscript of a book will not, at common law, carry with it
a right to print and publish the work without the express
consent of the author."
1 Woodworth v. Curtis, 2 Woodb. & M. 524.
* Sawin . Guild, 1 Gall. 485.
• Ibid.
* Stephens. Cady, 14 How. (U. 8.) 528; Stevens . Gladding, 17
How. (U. 8.) 447.
Lord Mansfield in Millar v. Taylor, 4 Burr. 2896.
⚫ 4 Burr. 2230, 2390; 2 Eden, 829; 2 Atkyns, 842.
•
PROPERTY SUBJECT TO ATTACHMENT. 233
Personal Property-What is not subject to levy.
Equitable exemptions.
§ 315.
Another exception to the
rule that all assignable property may be attached is founded
in equity—to shield the debtor from the extreme harshness of
a full application of the process in certain cases.
This excep-
tion is stated by Drake as follows: "Where property is of
such a nature that an attachment of it would produce a sacri-
fice, and greater injury to the defendant, without benefiting
the plaintiff, it is not attachable."
§ 316. Books of account and private papers are examples
of this exception. For the purpose of securing proof as to
the debtor's attachable credits, but not for the purpose of sale,
New York, and a few other states, have passed laws permitting
the attachment and removal of all books of account, vouchers,
and papers relating to the property debts, credits, and effects
of the debtor, together with all evidences of debt, which he
shall keep safely, to be disposed of as directed. But this
authority is restricted to the very letter of the statute. It is
held not to apply to the debtor's ordinary correspondence, or to
private papers unconnected with evidences of title; nor does
it authorize the examination of the books and papers lawfully
attached. And where it appeared that such examination was
permitted by the sheriff, the court ordered them to be locked
up, without power on the part of any one but the defendant,
to examine them; and further directed the sheriff to deliver
up all copies thereof to the defendant's counsel, enjoining the
plaintiff's counsel from using, in any way, the books and
papers attached, and from disclosing their contents to anyone."
8 317. Perishable property, etc. Property so situated that
an attachment and removal would substantially destroy its
value, also comes within this exception. Thus, where prop-
erty is so in the process of manufacture and transition as to
¹ Drake on Attachment, § 249; Oystead v. Shed, 13 Mass. 506; Brad-
ford ⚫. Gillaspie, 8 Dana, 67.
• Code of Civil Procedure, § 664.
Hergman . Dettleback, 11 How. 46.
234
•
THE LAW OF ATTACHMENT.
Personal Property-What is not subject to levy.
be rendered practically useless by having that process arrested,
it cannot be taken by the sheriff under a warrant of attach-
ment. He should have the right of removal, and is not bound,
for the preservation of the thing attached, to be an artisan,
and, either in person or by an agent, complete the process of
manufacture necessary to give value to the article, and thus
render himself responsible for the successful termination of
the experiment.' Burning ware in a potter's oven, or in a brick
kiln, or a burning pit of charcoal; dough in a baker's oven; and
hides in vats, in the process of tanning are examples of this ex-
ception. The same principle covers growing crops, unripe
fruit, fresh fish, and other articles peculiarly perishable, or that
would be destroyed if severed from the soil. This rule has
also been applied to executions, in a few of the states. Where
the goods in process of manufacture, or the growing fruits and
crops, have reached that stage where, by ordinary diligence,
they may be taken and brought to perfection, the rule will not
apply.'
§ 318. Quære, Cannot the owner's interest be attached? It
will be noticed that this rule, so far as it has been extended
to attachments, is founded upon decisions in the New England
States, where the distinction between the property itself and
the owner's interest therein is not, so far as this remedy is
concerned, as well recognized as in states not acting under
their peculiar system of attachment. There the sheriff is re-
¹ Wilds. Blanchard, 7 Vt. 188; Drake on Attachments, 250.
• Wilds. Blanchard, 7 Vt. 138; Bond v. Ward, 7 Mass. 123.
* Penhallow. Dwight, 7 Mass. 34; Wallace v. Barker, 8 Vt. 440;
Heard v. Fairbanks, 5 Metcalf, 111; Norris . Watson, 2 Foster, 864.
♦ Pitts v. Hendrix, 6 Ga. 452; Shannon ». Jones, 12 Ired. 206; Thomp
son v. Craigmyle, 4 B. Mon. 892.
Hale v. Bentley 21 Vt. 147. In Massachusetts the court refused to
protect from attachment hay in a barn that was sought to be exempted
on account of the loss that might be sustained in removing it. (Camp-
bell v. Johnson, 11 Mass. 184.) So, also, tobacco while being cured in
a dry-house, and not in a condition to be moved, was permitted to be
attached. (Cheshire National Bank o. Jewett, 119 Mass. 241.)
PROPERTY SUBJECT TO ATTACHMENT.
235
Personal Property-What is not subject to levy.
quired to attach the thing itself, and remove it, if removable;
but in most states the interest of the owners therein, whatever
that interest may be, or whatever condition the property may
be in, is attachable. The sheriff may take just such possession
as the necessities of the case may demand, and the goods may
be sold (in most instances, if perishable, before judgment),
and the purchaser acquiring all the interest of the debtor
therein may complete the manufacture, or wait till the crops.
are in condition, or sell them in their present condition to
others. It is evident that the New England rule before
stated may be found inapplicable under the general American
system of attachments. It is a well recognized rule that under
ordinary circumstances, and in the absence of restraining
statutes, growing crops, the fructus industriale as distin-
guished from grass or fruits which are the productions of the
soil without annual planting, constitute personal property, and,
as such, subject to levy and sale.' The difficulties attendant
upon levies upon growing crops, and the hardships of the
husbandmen in such cases, has led, in several of the states, to
statutory regulations on the subject. Thus, in Tennessee no
levy can be made until the 1st of November. In Kentucky
corn may be levied upon after October, and no other crops can
be seized while growing. The law is practically the same in
Alabama. The subject of growing crops will be further con-
sidered hereafter, it being introduced here simply for the
purpose of showing its connection with a certain class of
exemptions.
§ 319. State or municipal property devoted to public uses,
and necessary for carrying on the operations of government,
¹ Warren. Leland, 2 Barb. 618; Frank v. Harrington, 86 Id. 415;
Hartwell v. Bissell, 17 John. 128; Whipple ». Foot, 2 Id. 418; Planters'
Bank. Walker, 11 Miss. 409; McKenzie ». Lampley, 81 Ala. 526; Pierce
®. Roche, 40 Ill. 292; Cassily v. Rhodes, 12 Ohio, 88; Bradshaw o. Ellis,
2 Dey. & B. 28; Debow v. Colfax, 5 Halst. 128; Stambaugh v. Yeates, 2
Rawle, 161; Coombs v. Jordan, 8 Bland, 285. In Whipple v. Foot, the
New York Supreme Court held that a sheriff might levy upon a growing
crop of wheat and corn, and when ripe he could cut and sell it,
236
THE LAW OF ATTACHMENT,
Personal Property-What is not subject to levy.
or required for the use of the people at large, though capable
of transfer, is not subject to levy.' A county is a quasi corpo-
ration, capable of suing and being sued; but the recovery of
judgment is usually permitted simply for the purpose of
determining the extent of the liability. It should then be
voluntarily paid out of the revenues of the county. In default
thereof a mandamus against its officers, rather that an execu-
tion against its property, is the the proper remedy."
§ 320. Private property of municipal corporations. In
several of the states the private property of municipal corpo-
rations, and even such property as may be charged with public
uses and trusts, is subject to levy and sale.' But as a general
rule, such property, whether held for purposes of profit or
required for the proper exercise of its governmental function,
cannot be made the subject of a levy.*
An exception to this rule has been taken in a few of the
states, in favor of property not dedicated to a public use or
necessary to the administration of public affairs. This in-
cludes such property as paintings and articles of ornamentation
and private property held for profit or future use.* This rule
¹ Klein ». New Orleans, 99 U. S. Rep. 149; New Orleans & Carrollton
R. R. Co. v. Municipality No. 1, 7 La. An. 148; Gilman v. Contra Costa
County, 8 Cal. 52; Board of Supervisors ». Edwards, 76 Ill. 544.
• Emeric v. Gilman, 10 Cal. 404; Wilson v. The Commissioners, 7 W,
& S. 197; Sharp ». Contra Costa Co., 34 Cal. 284; Randolph Co. v. Ralls,
18 Ill. 29.
* Davenport v. Ins. Co. 17 Iowa, 276; Holladay .. Frisbie, 15 Cal.
630; Louisville ». Commonwealth, 1 Duval, 295; Savage v. Supervisors
of Crawford County, 10 Wis. 49; Lyell v. Supervisors of St. Clair, 8 Mc-
Lean, 580.
• Arnold .. Ridge, 18 C. B. 745; Wilson ». The Commissioners, 7 W.
& 8. 197; Emeric v. Gilman, 10 Cal. 404; Knox County ». Arms, 22 Ill.
175; Chicago . Hasley, 25 Id. 595; King v. McDrew, 81 Id. 418; Su-
pervisor . Edwards, 76 Id. 544; Townsend v. Greeley, 5 Wall. 826.
'Darlington. Mayor, etc. of New York, 81 N. Y. 164; Wheeler v.
Miller, 16 Cal. 124; Clarissy v. Metropolitan Fire Dept., 7 Abb. N. 8.
852; New Orleans. Home Mut. Ins. Co., 23 La. An. 61; Lyell
PROPERTY SUBJECT TO ATTACHMENT.
237
Personal Property—What is not subject to levy.
has been so extended in New York as to cover the funds,
paraphernalia, and apparatus, of a fire department. The rule
that shields public property from levy operates to protect the
taxes and other revenues collected from the people by muni-
cipal corporations. The proper remedy is by mandamus,
compelling payment out of such revenues."
§ 321. Property owned by private individuals or corpora-
tions and devoted to public use, cannot be shielded from attach-
ment on the grounds of public policy without the effect of
the seizure would be to endanger life and property, or obstruct
the government service. Thus, where the validity of a levy
upon
the boat cable and anchor of a sea-vessel came in ques-
tion, the court held that if the levy caused their removal when
in use, and necessary to the safety of the vessel, it would not
be permitted, but if the seizure was made when the boat was at
a wharf, and the articles were not in actual use, there was no
reason why they might not as well be taken as the harness of
a carriage or the detached sails and rigging of a ship, laid
away for future use. The same principle applies to the roll-
ing stock of a railroad. Although a mail coach and horses
cannot be attached while actually employed in U. S. service,"
yet the mere fact that a vessel is ordinarily used in carry-
ing the mail between two points will not protect it from a levy
when it has no mail on board.”
Supervisor of St. Clair Co., 8 McLean, 580; Crafts ». Elliotsville, 47
Me. 141.
'Clarissy ⚫. Metropolitan Fire Department, 7 Abb. N. S. 852; 8. C.,
1 Sweeny, 224.
* Dillon on Corporations, 112; Edgerton ». Third Municipality of New
Orleans, 1 La. An. 435; Gilman ♥. Contra Costa Co., 8 Cal. 52.
8
* Supervisors. Durant, 9 Wall. 415; State v. Hug, 44 Mo. 116;
Randolph Co. v. Ralls, 18 Ill. 29; Schaffer v. Cadwallader, 86 Pa. 126;
Olney ⚫. Harvey, 50 Ill. 453; Coy v. Lyons, 17 Iowa, 1.
Briggs v. Strange, 17 Mass. 405.
'Boston C. & M. R. R. Co. v. Gilmore, 87 N. H. 410.
• Harmon v. Moore, 59 Me. 428.
'Parker. Porter, 6 La. 189.
238
·
THE LAW OF ATTACHMENT.
M
Personal Property-Choses in Action.
§ 322. Private property in actual use could not at common
law be distrained or levied upon under execution.' This
principle seems to be founded on the theory that the levy
would tend directly to a collision and breach of the peace.'
So far as this rule applies to property sworn upon, or attached
to the person, it will be upheld in this country. Thus, in. Mas-
sachusetts the Supreme Court held that a levy of a watch
made by cutting the cord that attached it to the person of
the debtor was within the common law rule, and unlaw-
ful. But as to detached personal property of considerable
value, such as agricultural implements, carriages, tools, etc., the
rule is held not to be applicable in this country. They may be
attached whether they are in use or not, unless exempted
from levy by statute.*
§ 323. Choses in action were not, at common law, leviable.
This arose, partly, from the fact that (except negotiable
paper) they were not transferable—so as to give the assignee
a right to sue in his own name thereon. The common-law rule
still prevails in this country, except where modified by statute."
The New York Code was the first authority for the attach-
ment of choses in action. It provided for the levy upon
all the personal property of the debtor, and "personal prop-
erty " was declared to cover money, goods, chattels, things in
action, and evidences of debt. This principle was subsequent-
1 Coke on Littleton, 47 a; Com. Digest, Distress, C.
'Simpson v. Hartopp, Willes, 513; Gorton v. Falkner, 4 Term R.
565; Field . Adames, 12 Adol. & El. 649; Read v. Burley, Cro. Eliz.
549, 598.
Mack . Parks, 8 Gray, 517.
• Potter v. Hall, 3 Pick. 878; Bell v. Douglass, 1 Yerger, 397.
Johnson v. Crawford, 6 Black f. 877; Field . Lawson, 5 Pike, 876;
Ransom v. Miner, 3 Sandf. (N.Y.) 692; Ingalls Lord, 1 Cow. 240; Pool
⚫. Glover, 2 Ired. 129; Grogan v. Cooke, 2 Ball & B. 233.
• See Section 463 of the Code of Procedure, and Coddington v. Gil-
bert, 5 Duer, 72 (S. C., 17 N. Y. 489). Section 235 prescribed the
mode of enforcing an attachment thereon, and section 237 provided for
the manner of applying them to the payment of the judgment in the
action.
PROPERTY SUBJECT TO ATTACHMENT. 289
Personal Property-Choses in Action.
ly embodied in the laws of California,' Iowa,' Louisiana,” and
most of the other code states.
So far as it relates to choses in action not represented by
written evidences of debt, the rules applicable thereto will be
found in Chapter 22, as the process partakes of the nature of
garnishment. I will simply consider here what debts are
leviable by taking manual possession of the evidences of debt,
and without notice to the creditor.
Section 648 of the New York Code of Civil Procedure,
provides that an attachment may be levied "upon a cause of
action arising upon contract; including a bond, promissory
note, or other instrument for the payment of money only,
negotiable or otherwise, whether past due or yet to become
due; execnted by a foreign or domestic government, state,
county, public officer, association, municipal or other corpora-
tion, or by a private person, either within or without the state;
which belongs to the defendant, and is found within the
county. The levy of attachment thereupon is deemed a levy
upon and a seizure and attachment of the debt represented
thereby."
The term "payment of money only" is held to refer to an
instrument that has no other object than to evidence an exist-
ing liability. Where the same language was used in relation to
a verification by an agent, the court, in an action upon a
bond and mortage, said: "The foundation of the action was
the mortgage as much as it was the bond. It was upon both
of them, and they were together essential to the right of the
plaintiff to maintain it. In fact the mortgage was the most
important instrument of the two, for without it there could be
no sale of the premises mentioned for the benefit of the plaint-
iff. That was the substantial foundation of the relief de-
manded, and it was secured by the judgment recovered. The
¹ § 688, Cal. Code of Civil Procedure, Adams v. Hackett, 7 Cal. 187;
Davis v. Mitchell. 34 Cal. 87; Ross v. Heintzen, 86 Cal. 813.
§ 8046, Civil Code of Iowa.
* § 647, Code of Practice of La.; Brown v. Anderson, 4 Martin N. 8.
416; Stockton v. Stanbrough, 8 La. An. 890.
240
THE LAW OF ATTACHMENT.
Personal Property-Choses in Action.
action, therefore, was not upon a written instrument for the
payment of money only, but upon an instrument for the pay-
ment of the money, and providing for a sale of the defendant's
property in the case of default. And for that reason the
complaint could not be properly verified by the attorney,
simply because the bond was in his possession.”
Somewhat similar language is used in the provision pre-
ferring certain actions against corporations, to wit:
"A note,
or other evidence of debt for the absolute payment of money."
The courts hold that a lease for a term of years is not, within
the meaning of this clause, an obligation for the absolute pay-
ment of money."
The Supreme Court, in an early case, held that a policy of
fire insurance was not "a contract, note, or other evidence of
debt," although the right of action had become complete by the
destruction of the property. The First Department, in a late
case, held that this rule will not apply to life insurance policies
where a specific amount must absolutely become payable at
some time;' but the Court of Appeals, in the case of New
York Life Ins. Co. v. Universal L. Ins. Co., held that such an
instrument is not an evidence of an existing debt, but simply
agrees that one may arise if certain specified conditions are
performed. "It is none the less a conditional contract, al-
though ultimately there may grow out of it an absolute
liability."
This section only applies to such evidence as a voluntary
assignment would give the purchaser a right of action against
the alleged debtor. Hence, where the subject of levy in an
action against a railroad was certain bonds placed in the hands
of a third party as collateral security, but never, in fact, nego-
¹ Peyser ⚫. McCormack, 7 Hun, 800.
Phila. 8. S. Dock Co. v. Lorillard S. Co., 54 How. 508.
* Anon,, 6 Cow. 41. To the same effect, see Tyler v. The Ætna Fire
Ins. Co., 12 Wend. 507; Wells v. Watertown Fire Ins. Co., 21 Hun, 409.
* Studwell v. Charter Oak Ins. Co., 19 Hun, 127.
'88 N. Y. 424. To the same effect, see Guggenheim v. Charter Oak
L.. Ins. Co., 1 Law Bull. 51.
PROPERTY SUBJECT TO ATTACHMENT. 241
Personal Property-What Interests are Attachable.
tiated the court held that they were not leviable, for the
reason that no purchaser of them could enforce them against
the company.'
§ 324. What amounts to an attachable interest in personal
property. We have already noted a distinction between levies
upon the property itself and the owner's interest therein.
This distinction grew out of the common-law rule, that noth-
ing but legal titles could be made the subject of a levy. The
sheriff being required to make a manual seizure of the prop-
erty, no levy could be made without both the legal and equi-
table title was in the debtor.' This rule still applies in this
country in the absence of statutory provisions recognizing the
right of levy upon equitable interests only. This rule is
founded upon the theory, that an attachment or execution,
being only founded upon an action at law, should be re-
stricted to legal interests. Purely equitable rights being
enforceable in a suit in equity brought for that specific purpose,
it was contended that such interests should only be reached by
¹ Coddington v. Gilbert, 5 Duer, 72; 17 N. Y. 489.
Lyster v. Dolland, 1 Ves. Jr. 431.
Freeman on Executions, § 116; Badlam ♥. Tucker, 1 Pick. 399;
Boyce v. Smith, 16 Mo. 317; Sexton v. Monks, Id. 156; Benton v. Hope,
5 Humph. 392; Dargan v. Richardson, 1 Dudley (S. C.) 02; Rose v.
Bevan, 10 Md. 466; Brown v. Wood, 6 Rich. Eq. 155; Martin v. Jewell,
87 Md. 530; Yeldell v. Stemmons, 15 Mo. 443. This rule has been abro-
gated by statute in some of the States. See Freeman on Executions, § 116;
Samuel v. Salter, 8 Met. (Ky.) 259; Middletown Savings Bank v. Jarvis,
83 Conn. 872.
The interest of the assignor after a general assignment for the benefit
of creditors, or of a mortgagor of chattels after default, or where the
mortgagee has by virtne of the mortgage a right to possession, are ex-
amples of equitable interests, that are non-leviable within the foregoing
rule. Sce Wilkes v. Ferris, 5 Johns. 335; Nichols v. Mead, 47 N. Y.
653; Baltes v. Ripp, 3 Keyes, 210; Sprinkle v. Martin, 66 N. C. 55;
Pope v. Boyd, 22 Ark. 533; Williamson v. Clark, 2 Miles 153. So, also,
is the equitable interest of the debtor in personal property, pledged to a
creditor as security.. Hendricks v. Robinson, 2 Johns. Ch. 283; B. C., 17
Johns. 438; Marsh v. Lawrence, 4 Cow. 461.
16
242
THE LAW OF ATTACHMENT.
·
Personal Property-What Interests are Attachable.
such proceedings. A distinction has been drawn between
estates in possession and mere naked equities. Where an
equitable interest in personal property is combined with the
possession and the right to hold it for a certain time, the
interest is a leviable one, even in States holding the strict
common-law rule."
$325. Property covered by a chattel mortgage. It is this
distinction last above cited that makes the equitable interest
of a mortgagor of chattels, chargeable by levy so long as he
retains possession, and has an absolute right of possession.*
But where the right of possession has been terminated by a
default, or the mortgage is given on demand for a matured
indebtedness, or by its terms the mortgagee may take posses-
sion if he deems himself insecure, or the mortgagee has
¹IIendricks. Robinson, 2 Johns. Ch. 283; Hadden v. Spader, 20
Johns. 554; Tarbell v. Griggs, 3 Paige, 207; Williams . Hubbard,
Watkins Ch. 28; Pendleton v. Perkins, 40 Mo. 565; Bigelow v. Con-
gregational Society, 11 Vt. 283.
'Foster v. Potter, 37 Mo. 525.
ર
•
* Bailey. Burton, 8 Wend. 839; Hull v. Carnley, 11 N. Y. 501;
Manning v. Monaghan, 1 Bosw. 459; Hall v. Sampson, 85 N. Y. 274;
Hobart v. Frisbic, 5 Conn. 592; Merritt o. Niles, 25 Ill. 283; O'Neal v.
Wilson, 21 Ala. 288; Wootton . Wheeler, 22 Tex. 838; Schrader v.
Wolfin, 21 Ind. 238; Saxton v. Williams, 15 Wis. 293; Collins v. Gib-
son, 5 Vt. 243; Anthony v. Shaw, 7 R. L. 275; Fairbanks v. Phelps, 23
Pick. 535.
♦ Fairbanks ♥. Bloomfield, 5 Duer, 849; Champlin v. Johnson, 39
Barb. 606; Farmer's Bank v. Cowan, 2 Keyes, 217; Howland ⚫. Willett,
8 Sandf. 607; Mercer . Tinsley, 14 B. Monroe, 274.
* Baltes v. Ripp, 3 Keyes, 210; 8. C., 1 Abb. Ct. of App. 78.
Farrell. Hildreth, 88 Barb. 178; Stewart v. Slater, 6 Duer, 83;
Spriggs v. Camp, 2 Speer, 181; King . Bailey, 8 Mo. 832; Pulmer v.
Forbes, 23 Ill. 301; Campbell v. Leonard, 11 Iowa, 489; Paul v. Hay-
ford, 22 Me. 234. In New York State I think the later and better rule
to be that prior to the exercise of the discretionary power of the mort-
gagee, the possession and right of possession being in the mortgagor,
his interest in the property is a leviable one. See Hall v. Sampson, 85
N. Y. 274; and Hathaway . Brayman, 43 N. Y. 822.
•
PROPERTY SUBJECT TO ATTACHMENT. 243
Personal Property-What Interests are Attachable.
acquired possession prior to default,' no attachable interest
remains in the mortgagor.
As regards the interest of the mortgagee, the best rule, in
my opinion, is that he has a leviable interest just as soon as the
mortgagor has lost such interest within the forgoing rules. It
cannot be owned by both at the same time; neither is there
any period when it is not owned by either one of them; hence,
the rules being fixed as to a leviable ownership in the one,
will per contra establish the principles applicable to the other.
The main object in a levy is to secure the immediate right of
possession. Until, therefore, the mortgagee has by the mort-
gage the right of possession, his interest in the chattels is not
attachable. The sheriff, in such a case, in attempting to con-
vert the levy to possession, would render himself liable in
conversion to the mortgagor. Up to that time his interest
in the property is in the nature of a chose in action, and
attachable as such in those States where, by statute, such in-
terests are made subjects of an attachment; but the chattels,
as property, cannot be levied upon until a default or the con-
ditions of the instrument give the mortgagee the right of
possession."
§ 326. Property pledged as collateral security. This rule
as to the necessity of an absolute right of possession, to con-
stitute a leviable interest, opcrates at common law to shield
from attachment goods pledged for the security of a debt.
Although the legal title is in the pledgor, he labors under the
same disability as a mortgagee who by virtue of the mortgage
¹ Mattison v. Baucus, 1 N. Y. 295; Nichols v. Mead, 2 Lans. 224;
S. C. on appeal, 47 N. Y. 653; Gelhaar v. Ross, 1 Hilt. 117.
Where a chattel mortgage expresses no time of payment it is payablo
immediately, and the mortgagor, though in possession, holds no leviable
interest. Howland v. Willett, 8 Sandf. 607.
$
* Ferguson v. Lec, 9 Wend. 258; Jackson v. Willard, 4 Johns. 41;
Chapman ». Hunt, 2 Bens. Ch. 870. Brown v. Bates, 55 Mc. 520; Eaton
•. Whiting, 8 Pick. 484; Doughten . Gray, 2 Stock. Ch. 823; Hunt-
ington v. Smith, 4 Conn. 235; Glass v. Ellison, 9 N. II. 69; Trapnall ».
State Bank, 18 Ark. 58; Freeman on Executions, § 118.
244
THE LAW OF ATTACHMENT.
Personal Property-What Interests are Attachable.
acquires the legal title, but without the right of possession
until default. In such cases the interest of the pledgee only,
is subject to levy. In several of the States this defect has
been remedied by legislation. Thus, in New York, under the
provision of the Code authorizing an attachment, in the case
of property incapable of manual delivery, to be served upon
the debtor, or individual holding such property, the courts
have abrogated the necessity of possession by applying the
provision to all property which has by contract been placed
in that position, as well as to that which by its nature is im-
movable. This extends the right to the pledgor of goods, or
to the consignor who has received an advancement thereon,
and in the case of merchandise held by the custom-house until
duties are paid. This is one of the cases where a levy can be
made upon the interest of a person in certain property, but not
upon the property itself. Various attempts have been made by
courts to obviate the common law disability without the aid of
statutes—such as seizing the goods in the hands of the pledgee
and after sale returing the same to him as before, with the
purchaser substituted for the pledgor as the holder of the
legal title, and selling the same upon a constructive levy with-
'Saul. Kruger, 9 How. 569; Moore . Hitchcock, 4 Wend. 292;
Story on Bailments § 853; Turner on Pawns, 189; Freeman on Execu-
tions, § 120; Babcock e. Malbie, 7 Martin, N. S. 189; Stephenson v.
Walden, 24 Iowa, 84; Holbrook v. Baker, 5 Maine, 309; Sargent v. Carr,
12 Id. 896; Moore v. Murdock, 26 Cal. 514; Haven v. Low, 2 N. H.
18; Williams o. Whoples, 1 Head, 401.
Clarke v. Goodridge, 41 N. Y. 210; Kuhlman v. Orser, 5 Duer,
242. Under this rule comes a promissory note in the hands of an at-
torney for collection. Russell •. Ruckman, 8 E. D. Smith, 419. But
the property, to be subject to the levy, must be inthe actual possession
of the third party served. Patterson v. Perry, 10 Abb. 82; and see
Grunt . Shaw, 16 Mass. 844.
* Sec Brownell v. Carnley, 8 Duer, 9; Wood v. Orser, 25. N. Y. 848;
Bank of Mutual Redemption v. Sturgis, 9 Bosw. 608; Patterson v. Perry, `
5 Bosworth, 518.
* See Bakewell v. Ellsworth, 6 Hill, 484; Glassner v. Wheaton, 2
E. D. Smith, 852; Wheeler . McFarland, 10 Wend. 818; Srodes v.
Caven, 8 Watts, 258.
PROPERTY SUBJECT TO ATTACHMENT. 245
Personal Property-What Interests are Attachable.
out taking manual possession, by constituting the pledgee as
the sheriff's keeper for the time being, or other like devices.'
But these are only exceptional cases; the rule is too well founded
to be generally disregarded in the absence of statutory aid.
§ 327. Application of the rule to conditional or incomplete
transfers of personal property. In the case of sales it may be
stated, as a general rule, that chattels cannot be attached as the
property of a debtor before his right thereto has become ab-
solutely vested therein, or after it has become contingently
vested in another.' Thus, goods shipped to a purchaser are
not attachable in an action against him while the right of
stoppage in transitu, exists in the vendor; and it has been held
that the latter may even follow the proceeds of such goods
after the sheriff's sale.*
The same principle applies in special or conditional sales,
where a condition precedent prevents the temporary passing
of the legal title to the vendee-as in the case of good de-
livered on memorandum,' to be paid for if sold, otherwise to
be returned; or sold on condition that if not paid for within a
specified time, the title shall not pass to the vendee; or pur-
¹ See Baugh v. Kirkpatrick, 54 Pa. St. 84; Mechanics' Building and
Loan Association v. Conover, 14 N. J. Eq. 219.
"Wait's Practice, 162.
* Bates v. New Orleans, Jackson & Great Northern R. R. Co., 4 Abb.
72; Jones v. Bradner, 10 Barb. 193; Calahan v. Babcock, 21 Ohio St.
281; Inslee . Lane, 57 N. H. 454; Dickman v. Williams, 50 Miss. 500.
* O'Brien v. Norris, 16 Maryland, 122. A symbolic delivery has
sometimes been beld sufficient to transfer the leviable title to the vendee
before the property in question has actually come into his hands. As in
the case of the receipt of the way-bill, and the payment of freight by
him of the goods in transit. Hatch . Bayley, 12 Cushing, 27; Hatch v.
Lincoln, Id. 81.
* Meldrum ». Snow, 9 Pick. 441; Merrill v. Rinker, Baldwin, 528.
• McFarland v. Farmer, 42 N. H. 886; Buckmaster v. Smith, 22 Vt.
203; Woodbury . Long, 8 Pick. 543; Ash v. Putnam, 1 Hill, 302;
Strong v. Taylor, 2 Id. 826; Kohler . Hayes, 41 Cal. 455; Johnson v.
White, 46 Id. 828; Herring v. Hoppock, 8 Duer, 20; S. C. on appeal, 15
N. Y. 409; Piser v. Stearns, 1 Hilton, 86; Sage v. Sleutz, 23 Ohio St.
248
THE LAW OF ATTACHMENT.
Personal Property—What Interests are Attachable.
chased by fraud or deceit, so as to render the sale voidable on
the part of the vendor, and he so elects to consider it ;' or
purchased for cash under such circumstances that the title
does not pass until payment is made.'
In all these cases the vendee does not take such a title to
the property in question as to subject it to attachment upon
his personal liabilities. The question then arises whether in
such cases they may be attached in an action against the
vendor. On the principle that property cannot be so placed
as to shield it from the creditors of both parties to the trans-
action, I cannot perceive why he should not retain a leviable
interest until the vendee acquires it.
$328. Personal property owned by partners and tenants in
common., A debtor cannot withdraw his property from levy
by uniting his interests with another, and forming a partner-
ship or co-tenancy of the joint property. In the case of co-
tenancy a levy may be made upon the interest of the debtor in
the common fund, and the sheriff may take manual possession
of the entire property, and retain the same until the sale."
And, although there is some clashing among the decisions, the
1; Cardinal v. Edwards, 5 Nev. 36; Hussey v. Thornton, 4 Mass. 405;
Marston v. Baldwin, 17 Id. 606, Hart v. Carpenter, 24 Conn. 427; Lucas
v. Birdsey, 41 Id. 857. But this rule will not apply to protect the
vendee, where the property is used with the knowledge of the vendor to
build up his credit on the strength of presumptive ownership, and thus
made an instrument to defraud creditors (Martin o. Mathiot, 14 8. & R.
214); nor in any case where it appears that the arrangement is colorable,
or to protect the property from creditors (Bonesteel v. Flack, 41 Barb.
435; Ludden v. Hazen, 81 Id. 650).
1 Thompson. Rose, 16 Conn. 71; Buffington v. Gerrish, 15 Mass.
156; Wiggin v. Day, 9 Gray, 97; Gasquet o. Johnson, 2 La. 514; Brad-
ley v. Obear, 10 N. H. 477.
8 Acker v. Campbell, 23 Wend. 872; Clark . Lynch, 4 Daly, 83;
Bancker. Brady, 26 La. Ann. 749.
Freeman on Executions, § 125; Freeman on Co-tenancy and Par-
tition, § 214; Phillips v. Cook, 24 Wend. 880; Walsh v. Adams, 8 Denio,
125; Waddell v. Cook, 2 Hill, 47; Treon ». Emerick, 6 Ohio, 891; Wald-
man v. Broder, 10 Cal. 378; Islay v. Stewart, 2 Dev. & Bat. 160.
PROPERTY SUBJECT TO ATTACHMENT. 247
Personal Property-Fixtures.
same rule may be said to be applicable to the case of partner-
ship property. But the purchaser in the latter case really
secures nothing more than the right to share in the distribu-
tion of the assets after payment of firm debts."
§ 329. Fixtures. I come now to consider what property
can be attached as personalty that is more or less attached to
or partakes of the nature of realty, such as fixtures, emble-
ments, growing crops, etc. The best general rule to be adopted
in the consideration of this subject is, that wherever the debtor
has by law the right of sale, and removal of property, that
right can be transferred to and exercised by a purchaser at
sheriff's sale, and is therefore leviable under attachment and
execution. The question to be considered therefore, is, whether
the debtor has the legal right to sever the article levied upon
from the freehold. A full consideration of this topic would
require a separate elementary treatise. The limits of this
work will only permit a generalization of the law on this sub-
ject. Fixtures are chattels that have been affixed to realty,
and 66
They may be divided into "movable" immovable
fixtures. The former is personalty, the latter real estate.
"Movable fixtures," may be defined as "those personal
chattels which have been annexed to the land, and which may
be afterward severed by the party who has annexed them
or his personal representative, against the will of the owner of
the freehold." Being personal property capable of sale and
delivery, it is plain that they may be attached and sold as
""
¹ Smith . Orser, 42 N. Y. 132; Moody v. Payne, 2 Johns. Ch. 548;
Scrugham . Carter, 12 Wend. 131; Wilson v. Conine, 2 Johns. 280;
Garvin v. Paul, 47 N. H. 158; White v. Jones, 38 Ill. 159; Andrews v.
Keith, 84 Ala. 722.
"Eighth National Bank ». Fitch, 49 N. Y. 539; Chandler v. Lincoln,
52 II. 74; U. §. v. Hack, 8 Pet. 271; Pierce v. Jackson, 6 Mass. 242.
For a more extended application of this rule see Chapter XVL, infra.
* Cook v. Champlain, etc. Co., 1 Denio, 91; Walker . Sberman, 20
Wend. 636; Kelsey v. Durkec, 83 Barb. 410; Prescott v. Wells, 3 Nev.
82; Fitzherbert v. Shaw, 1 H. Bl. 258; Elwes v. Mawe, 3 East, 38; Pen-
ton v. Robart, 2 East, 91; Mansfield v. Blackburne, 6 Bing. N. C. 426.
248
THE LAW OF ATTACHMENT.
•
Personal Property-Fixtures.
personalty, and thus made to contribute to the payment of the
owner's debts in like manner as other personal property.'
Immovable fixtures being real estate, cannot be separately
attached, but will pass under a levy upon the realty to which
it is annexed. To become a part of the realty, there must be
such an annexation as to render removal impossible without
injury to the freehold; it must be annexed perpetui usus
causa.
§ 330. Union of act and intent. Two things must exist
before personal property can become changed to real estate:
1st, the fact of actual annexation to lands,' and, 2d, the intent
that it shall become permanently attached thereto.' In regard
to annexation, it has been held that a colossal statue,' or sun
dial,' erected by the owner of the land for ornamentation or
use, becomes a part of the realty, although not fastened to the
base on which it rests other than by its own weight.
The character of the annexation, and the person making it
often have a bearing on the question of intent. Thus, where
machinery is so fastened to a building as to be removed with-
out damage, or if it is apparent that the annexation was simply
1 See Freeeman on Executions, § 114; Brown on Fixtures, § 193;
Amos & Ferard on Fixtures, 64-93; Ombony v. Jones, 19 N. Y. 234;
Lemar v. Miles, 4 Watts, 330; Doty v. Gorham, 5 Pick. 487.
'Dubois . Kelly, 10 Barb. 490; Godard v. Gould, 14 Barb. 662;
Providence, etc., Co. v. Thurber, 2 R. I. 15; Hoyle v. P. & M. R. R., 51
Barb. 45.
* Walker . Sherman, 20 Wend, 636; Vanderpool . Van Allen, 10
Barb. 157; Snedeker v. Warring, 12 N. Y. 170; Farrar e. Chauffeteto, 5
Den. 587; Taffe v. Warnick, 8 Blackf. 111; Fullam . Stearns, 30 Vt.
443; Lathrop . Blake, 8 Foster, 46; Talbot v. Whipple, 14 Allen, 177;
McKim ⚫. Mason, 8 Md. Ch. 186; Swift v. Thompson, 9 Conn. 93.
• Potter v. Cromwell, 40 N. Y. 287; Voorhees v. McGinnis, 48 N. Y.
278; Ford v. Cobb, 20 N. Y. 844; Merrit v. Judd, 14 Cal. 59; Russell
». Richards, 1 Fairf. 429; Dame .Dame, 88 N. H. 429; Pierce v. George,
108 Mass. 78; Stockwell v. Campbell, 89 Conn. 862; Teaff ». Hewitt, 1
Ohio St. 530.
Snedeker v. Warring, 12 N. Y. 170.
• Gardner v. Finley, 19 Barb. 817.
PROPERTY SUBJECT TO ATTACHMENT. 249
N
Personal Property-Fixtures.
for the purpose of keeping it in a secure position while in use;
in other words, if it appears that the building was for the use
of the thing attached to it, instead of the latter being for the
use of the former, it will usually be considered personalty.'
But if it be so affixed as not to be severed without damage
to the realty, that is, without making the building of less value
than before it was attached, the presumption arises that it
was intended for the permanent use of the entire structure,
and therefore a part of the realty."
§ 331. The element of intent where the person who at-
taches the chattel is not the owner of the fee is usually evi-
denced by a contract, express or implied, between the parties.
Such an agreement will usually determine the question, with-
out regard to the character of the article or the manner of its
annexation. Thus, buildings, fences, and other structures,
though attached to the soil in such a manner as to become
real estate within the ordinary acceptance of the rule, may by
agreement remain personalty. The question of intent is also
gathered from the relationship of the parties; thus, where a
person's interest in lands is limited to a certain fixed period, it
is to be presumed that the structures erected by him have
reference to his own term, and that at its end he will remove
them, leaving the property in its original condition; hence
¹ Tobias v. Francis, 8 Vt. 425; Cresson v. Stout, 17 Johns. 116;
Freeland v. Southworth, 24 Wend. 191; Fullam v. Stearns, 30 Vt. 443;
Hill. Wentworth, 28 Vt. 428; Hutchinson v. Kay, 23 Beav. 413;
Pierce v. George, 11 Am. Rep. 814.
'Potter v. Cromwell, 40 N. Y. 287; Voorhees v. McGinnis, 48 N. Y.
278; Alvord C. M. Co. v. Gleason, 86 Conn. 86; Capen v. Peckham, 35
Conn. 88; Hoyle v. P. & M. R. R., 51 Barb. 45.
Brearley. Cox, 4 Zabr. 287.
Sheldon . Edwards, 35 N. Y. 279; Smith ». Benson, 1 Hill, 176;
Hunt. Bay State Iron Co., 97 Mass. 283; Curtis v. Riddle, 7 Allen,
187; Wells n. Bannister, 5 Mass. 514; Osgood v. Howard, 6 Greenl. 452;
Crippen v. Morrison, 13 Mich. 87. The question being one of intent, the
rule will not be affected by the fact that the agreement was in parol.
(Dubois v. Kelly, 10 Barb. 496.)
250
THE LAW OF ATTACHMENT.
Personal Property—Products of the Soil.
comes the rule that things set up by a lessee during his
tenancy, for ornamentation, or for the purposes of his vocation,
may be treated as personalty, and removed by him at the end
of his term, provided they may be severed from the land
without material injury to it.'
But if the tenant fails to remove such fixtures at the end
of his term, the counter presumption prevails, that he origi
nally intended them to be permanent. This presumption will
prevail even though, as a matter of fact, the tenant intended
to return for the articles within a convenient time thereafter,
or where he accepted a new lease at the end of the term, with-
out first severing them from the freehold."
§ 332. Products of the soil. It is necessary to consider
also, the line of demarkation drawn by the courts between
personal property and real estate in the case of the products
of the soil. It may be stated as a general rule that “growing
trees, fruit or grass, the natural produce of the earth, and not
anunal productions raised by the manurance and industry of
man, are parcel of the land itself," and cannot be levied as
chattels. On the other hand, the fructus industriales, such
as growing grain, vegetables, or other product of the soil raised
annually by labor and cultivation, is personalty, and may
be
levied upon and sold as other personal estate. A purchaser
¹ Hill on Fixtures, § 17; Raymond . White, 7 Cow. 819; King v.
Wilcomb, 7 Barb. 263; Godard v. Gould, 14 Barb. 602; Cook v. Cham-
plain, &c. Co., 1 Denio, 01; Holmes v. Tremper, 20 Johns. 29; Van Ness
v. Pucard, 2 Pet. 187; Fairis v. Walker, T Bailey, 541; Washburn v.
Sproat, 16 Mass. 449.
'King .. Wilcomb, 7 Barb. 263; Merrit v. Judd, 14 Cal. 59; State
v. Elliott, 11 N. H. 540; Overton v. Williston, 81 Pa. St. 155; Weeton
v. Woodcock, 7 Mees. & W. 14; Lee v. Risdon, 7 Taunton, 188.
* Loughran v. Ross, 45 N. Y. 792: Abell v. Williams, 3 Daly, 17.
* Green v. Armstrong, 1 Den. 550; Bank of Lansingburgh v. Crary, 1
Barb. 542; Slocum . Seymour, 86 N. J. L. 138; Roe v.. Gemmell, 1
Hous. (Del.) 9; Craddock ». Riddlesbarger, 2 Dana, 205; Putney v. Day,
6 N. H. 430; Adams v. Smith, Breese, 221; Crosby v. Wadsworth, 6 East,
602.
* Penhallow. Dwight, 7 Mass. 35; Cassilly v. Rhodes, 12 Ohio, 88;
PROPERTY SUBJECT TO ATTACHMENT. 231
گی
Personal Property-Products of the Soil.
at such sale acquires all the debtor's interest in the crops, in-
cluding the right of ingress, egress, and regress, for the purpose
of gathering and carrying it away. Some products partake
of a double nature; thus, hop-roots are perennial and there-
fore partake of the nature of real estate ; but hops, the annual
produce therefrom, being the result of industry, are personal
property, and subject to levy as such.' Where trees, grass, or
fruit, has become either actually severed from the soil, or have
been sold by the owner of the fee, they become, for all intents
and purposes, mere chattels.*
§ 333.
Emblements. There are certain circumstances
under which the outgoing tenant has rights to the crops
maturing subsequent to the termination of his lease. The
produce in such a case is termed emblements, and may be
reached by levy at the suit of a creditor of the tenant. This
right is limited to cases where the tenant could have no
knowledge at the time the crop was sown whether his term
would expire before harvest time. It is not applicable, there-
fore, to a tenant for years, or to any case where the termina-
tion of the lease is fixed and certain ;" and this rule holds true
under such a lease although, as a matter of fact, the tenancy
is terminated, under the rule of respondeat superior, prior to
the termination of the lease. Thns, where the title of the
landlord has been foreclosed prior to the expiration of the
Scorell v. Boxall, 1 Younge & J. 898; Shannon v. Jones, 12 Ired. 206;
Smith . Tritt, 1 Dev. & Bat. 241; Northern . The State, 1 Ind. 118;
Hartwell v. Bissell, 17 Johns. 128; Harris v. Frink, 49 N. Y. 24; Austin
v. Sawyer, 9 Cow. 89; Graff v. Fitch, 56 Ill. 873; Freeman on Execu-
tions, § 113.
'Shephard v. Philbrick, 2 Denio, 174; Stewart v. Doughty, 9 Johns.
108.
* Latham v. Atwood, Cro. Car. 515.
Frank. Harrington, 36 Barb. 415.
Caldwell. Fifield, 4 Zabr. 150; Wintermute v. Light, 46 Barb.
278; Jencks v. Smith, 1 N. Y. 90.
* Clarke v. Rannic, 6 Lans. 210; Whitmarsh v. Cutting, 10 Johns.
860; Bain v. Clark, 10 Johns. 424.
252
THE LAW OF ATTACHMENT.
Personal Property-Products of the Soil.
term, and the tenant ousted, the right to the outgoing crops
passes to the purchaser as a part of the fee.' But a tenant on
shares with the consent of the mortgagee is entitled to his
proportion of the crops, notwithstanding such a sale;" and such
a tenant is entitled to his share of the crop sown by him
though harvested after the expiration of his term."
Where a lease for years contains a clause giving the land-
lord the right to terminate it at the end of any year, without
giving previous notice in case the premises be sold, the lessee
is practically a tenant at will, and entitled to the emble-
ments.*
In the case of Stewart v. Doughty,' it appeared that a farm
was leased on shares for a term of years, with the privilege
of either party to terminate the lease on six months' notice, the
tenant to be paid the expenses of putting in the seed, etc., in
case the landlord gave such notice. The growing crop having
been levied upon by a creditor of the lessee, the landlord gave
notice to quit, and the lessee left the premises. The sheriff,
nevertheless, sold the grain when ripened. The court held that
the tenant was entitled to the crops as emblements, and that
the purchaser acquired a good title thereto notwithstanding
the provisions of the lease for indemnification in such an
event.
' Lane v. King, 8 Wend. 584.
Congden v. Sanford, Lalor's Suppl., 196.
$ Armstrong . Bicknell, 2 Lans. 216.
• Pfanner ». Sturmer, 40 How, 401.
9 Johns. 108.
PROPERTY SUBJECT TO ATTACHMENT. 253
Fraudulent Transfers.
CHAPTER XVIII.
FRAUDULENT TRANSFERS.
§ 334. A transfer made to hinder, delay, or defraud creditors,
as to such creditors, passes no title whatever; the property
covered thereby may be attached in the hands of the trans-
feree for the debts of assignor, and afterward sold under
execution. In an action against the sheriff the character of
the transfer will be in issue, and may be determined by the
jury to the same extent as by the court in a creditor's suit in
equity. It may be stated as a rule that all property held by
virtue of a fraudulent assignment, execution, mortgage, or
other instrument, may be treated in attachment cases as the
property of the original owner.'
§ 335. Limitations of the foregoing rule. The rule stated
in the preceding section must be taken with certain limitations.
It applies only to tangible assets. Choses in action, though
made leviable in New York and a few other states, and made
subject to garnishment in all the states, cannot be seized in
¹ Booth v. Bunce, 33 N. Y. 139; Russell v. Winne, 37 N. Y. 591;
Mechanics' and Traders' Bank of Jersey City. Dakin, 50 Barb. 587;
Hyslop. Clarke, 14 Johns. 458; Rinchey v. Stryker, 28 N. Y. 45; Aus-
tin v. Bell, 20 Johns. 442; Sculley v. Kearns, 14 La. An. 326; Russell v.
Dyer, 33 N. H. 186; Hall v. Sands, 52 Me. 855; Jacoby's Appeal, 67
Pa. St. 434; Rylaud . Callison, 54 Mo. 513; Foley v. Bitter, 84 Md.
646; Fowler . Trebein, 16 Ohio St. 493; Gormerly . Chapman, 51
Ga. 425; Pratt v. Wheeler, 6 Gray, 520; Eastman v. Schettler, 13 Wis.
324; Scales v. Scott, 13 Cal. 77; Burke v. Murphy, 27 Miss. 167; Hall v.
Heydon, 41 Ala, 242.
254
THE LAW OF ATTACHMENT.
Fraudulent Transfers.
the hands of a fraudulent vendee.' The same principle applies
where the property transferred was exempt by law from levy
and sale on execution.*
A transfer in good faith, though made without considera-
tion, and therefore void as to existing creditors, cannot be
attached by those who became creditors thereafter without
showing an intent at the time of the transfer to create the liabil-
ity. An existing indebtedness at the time of the transfer is
not evidence of frand as to subsequent creditors unless shown
to exceed the grantor's ability to pay. The onus is on them
to show that he was either insolvent or that the transfer
was made with intent to defraud subsequent creditors.*
But where the transfer is shown to be fraudulent in fact
the assignee becomes in law a trustee ex maleficio for the
benefit of both existing and subsequent creditors, who may
enforce their rights either by creditors' bill, or attachment
upon the property transferred.
A distinction must be drawn between property fraudulently
transferred by the debtor, and that which he never had the
1 Smith v. Longmire, 24 Hun. 257; Conner v. Weber, 12 Hun. 580;
Thurber . Blanck, 50 N. Y. 80; Greenleaf v. Mumford, 50 Barb. 543;
Mechanics' and Traders' Bank v. Dakin, 51 N. Y. 587.
* Wood . Chambers, 20 Tex. 247; Lishy v. Perry, 6 Bush, (Kỵ.)
515; Smith . Allen, 89 Miss. 409; Foster v. McGregor, 11 Vt. 595;
Bond v. Seymour, 1 Chand. 40; Bean . Smith, 2 Mason, 252; Wine-
brinner o. Weisinger, 3 Monr. 83.
* Seaman v. Wall, 54 How. Pr. 47; Spicer v. Ayers, 53 How. Pr. 405;
Williams . Banks, 11 Md. 198; Howe . Ward, 4 Me. 195; Black v.
Nease, 37 Pa. St. 433; Lyman v. Cessford, 15 Iowa, 229; National Bank
v. Sprague, 20 N. J. (Eq.) 18; Stileman v. Ashdown, 2 Atk. 481; Miller
v. Wilson, 15 Ohio, 108; New Haven S. S. Co. v. Vanderbilt, 16 Conn.
420; Tarbach v. Marbury, 2 Vern. 509.
• Loeschigk v. Hatfield, 5 Robt. 26 (S. C. on app., 51 N. Y. 660);
Cushman v. Addison, 52 N. Y. 628; Van Wyck o. Seward, 6 Paige, 62;
Peek o. Peek, 4 Wend. 802; Wilbur v. Fradenburgh, 52 Burb. 474.
* Holmes v. Clark, 48 Barb. 237.
Carpenter v. Roe, 10 N. Y. 227; Wadsworth e. Havens, 8 Wend.
411; King. Wilcox, 11 Paige, 589; Parish v. Murphree, 13 How. (U. S.)
92; Wyman v. Brown, 50 Me. 189; Doyle v. Sleeper, 1 Dana, 531.
PROPERTY SUBJECT TO ATTACHMENT. 255
Fraudulent Transfers-Exceptional Cases.
title of, but fraudulently purchased in the nname of another.
Though the fraud is equally patent in the latter case, it can
only be attacked by a creditor's suit. As the effect of nullify-
ing the transaction would be to revest the property in the
original vendor, it is plain that it cannot be attached as the
property of the real purchaser.'
Another distinction to be observed is, that the attachment
must be made upon the identical articles fraudulently assigned.
Where, subsequent to the assignment, they have been converted
by the assignee into cash, or exchanged for other property, or
have otherwise lost their identity, and the proceeds, or property
in the new form, is claimed by the assignee as his property
prior to the issuing of the attachment, the sheriff can neither
attach the same nor maintain an action against the assignee
therefor. The property must be reached in equity under
supplementary proceedings, or by creditor's bill.'
§ 336. Extent of the rule. The rule as to attachments in
such cases is not confined to sales, but covers all transactions
whereby the property of a debtor becomes vested, absolutely
or contingently, in another. Thus, in a decision of the New
York Court of Appeals, it was applied to the case of a trans-
fer of the property of an insolvent corporation to another
corporate body that had been created for the purpose of taking
the same; the court holding that deeds, mortgages, obliga-
tions, contracts, judgments, and even corporate bodies, may
be used as instruments through which parties obtain the most
unrighteous advantages. "Whenever the law is invoked all
such instruments are declared nnllities; they are a perfect
'Brewster v. Power, 10 Paige, 562; Garfield v. Hatmaker, 15 N. Y.
475; Dewey. Long, 25 Vt. 564; Howe . Bishop, 8 Met. 28; Trask v.
Green, 9 Mich. 858; Page v. Goodman, 8 Ired. Eq. 16; Williams v.
Council, 4 Jones, 206; Hamilton v. Cone, 99 Mass. 478; Low v. Marco,
53 Me. 45; Garret v. Rhame, 9 Rich. 407; Jimmerson v. Duncan, 8
Jones (N. C.) 537; Gray . Farris, 7 Yerg. 155.
•
* Greenleaf o. Mumford, 50 Barb. 543; Ex parte Freel, 55 How. 386;
Campbell. Erie R. R. Co., 46 Barb. 540; Lanning v. Strecter, 57 Barb,
83; Lawrence . Bank of the Republic, 35 N. Y. 320.
*
256
THE LAW OF ATTACHMENT.
Fraudulent Transfers-Chattel Mortgages.
dead letter, the law looks upon them as if they had never been
executed. They can never be justified nor sanctified by any
new shape or cover, by forms or recital, by covenants or sanc-
tions, which the ingenuity, or skill, or genius of the rogue may
devise."
§ 337. What instruments are fraudulent as to attacking
creditors. Chattel mortgages executed as a cover for the
benefit of the mortgagor are fraudulent and void. What facts
are sufficient to create the presumption of fraud is sometimes
difficult to determine. The following are instances where the
courts have held such mortgages to be invalid. A mortgage
is prima facie void if made by an insolvent debtor upon
property grossly in excess of the debt intended to be secured
thereby. It is absolutely void as to attaching creditors if
there is an agreement, either expressed in the mortgage or
entered into at the time it was made, or necessarily implied
by circumstances attending the disposition of the property,
that the mortgagor may retain possession, and sell the chattels
covered thereby in the usual course of business.' The fact of
¹ See Booth v. Bunce, 33 N. Y. 189, and cases cited.
* Bailey . Burton, 8 Wend. 839; Ford v. Williams, 13 N. Y. 577;
Bennett. Union Bank, 5 Humph. 612; Mitchell v. Beal, 8 Yerg. 134;
Adams v. Wheeler, 10 Pick. 199; Davis v. Ransom, 18 Ill. 396. It is
not safe, in my opinion, to go farther than to say that such excess creates
a presumption of the intent to hinder, delay, and defraud creditors.
The presumption is not an irrcbuttable one; in fact, the courts in a few
instances have denied the validity of the rule, for the reason that the
property prior to default may be sold subject to the lien for the actual
amount of the secured claim, or may be released upon the payment of
that amount. See Downs . Kissam, 10 How. (U. 8.) 102; Bank of
Georgia v. Higginbottom, 9 Pet. 48.
* Dodds v. Johnson, 3 S. C. 215; Chatham Bank ». O'Brien, 6 Hun,
231; Gardner v. McEwen, 19 N. Y. 123; Russell v. Winne, 87 N. Y.
591; Griswold v. Sheldon, 4 N. Y. 581; Delaware . Ensign, 21 Barb.
85; Wagner v. Jones, 7 Daly, 875; Southard v. Benner, 72 N. Y. 424;
City Bunk v. Westbury, 10 Hun, 458; Dutcher v. Swartwood, 15 Hun,
81; Brackett v. Harvey, 25 Hun, 502; Smith v. Cooper, 27 Hun. C65;
Ball v. Slafter, 20 Hun, 353; Collins v. Myers, 16 Ohio, 547; Brooks v.
PROPERTY SUBJECT TO ATTACHMENT. 257
Fraudulent Transfers-Chattel Mortgages.
the mortgage covering the stock of a retail store, and of the
mortgagor remaining in possession and selling the property,
creates a presumption that there was an agreement, express
or implied, that he should be permitted to sell the mortgaged
goods, which will bring the case within the rule.'
Any attempt to create a fluctuating lien which would
release property sold by the mortgagor, and take in that pur-
chased by him, will render the mortgage void. If by its
terins the mortgagor has the right of sale of the mortgaged
property, the mortgage is fraudulent as to its creditors, although
there was a cotemporaneous oral agreement that the proceeds
of such sales should apply upon the secured debt.' And the
rule is the same though the mortgage itself contained a stipu-
lation to that effect. But it has been held that an oral
agreement that the mortgagor shall retain possession and sell
the goods, paying over to the mortgagee the proceeds thereof,
does not render the mortgage void in law. The general rule,
A
Wimer, 20 Mo. 503; Freeman v. Rawson, 5 Ohio St. 1; Place v. Lang
worthy, 13 Wis. 629; Sheppards v. Turpin, 8 Gratt. (Va.) 373; Barne
v. Fergus, 51 Ill. 852; Constantine . Twelves, 29 Ala. 607; King .
Kenan, 38 Ala. 63; Banlett v. Blodgett, 17 N. H. 298.
¹ See Mittnacht . Kelly, 8 Keyes, 407; Otis v. Sill, 8 Burb. 102;
Spies v. Boyd, 1 E. D. Smith, 445.
Smith v. Cooper, 27 Hun, 565.
* Ball •. Slafter, 26 Hun, 353.
♦ Brackett v. Harvey, 25 Hun, 502; City Bank v. Westbury, 16 Hun,
458.
* Caring . Richmond, 23 Hun, 369. It is also held that a clause ex-
tending the mortgage to after-acquired property does not render it
absolutely void in the absence of any authority to continue the business,
or knowledge of such dealing on the part of the mortgagee, or affirma-
tive proof of an actual attempt to defraud creditors. Yates v. Olmsted,
56 N. Y. 632; reversing S. C., 65 Barb. 43, 462. And it has been held
that an agreement giving the mortgagor of personal property the right
to retain possession and sell the goods for cash only, paying the entire
proceeds to the mortgagee, is not fraudulent per se, although it presents
a question of good faith for the jury. See Ford v. Williams, 24 N. Y.
359; Miller v. Lockwood, 32 N. Y. 293; Wilson v. Forsyth, 24 Barb.
105; Johnson v. Curtis, 42 Barb. 588.
17
258
THE LAW OF ATTACHMENT.
Fraudulent Transfers-Voluntary Conveyances.
as hereinbefore stated, has not received the sanction of the
courts in all the states. In Massachusetts,' Maine,' Iowa,'
Michigan, and Tennessee,' mortgages containing provisions
that the mortgagor may retain possession of the stock of
goods covered thereby, and retail the same in the usual course
of trade, replacing the goods by fresh stock of like value, to
be charged by the mortgage in the place of the goods sold, is
valid and binding as to creditors.
An unfiled chattel mortgage is void as to existing judg-
ment creditors and all persons who became creditors of the
mortgagor while the goods remained in his possession and before
the same was actually filed. It is also void as to subsequent
attaching creditors if not renewed within the time specified
by the statute.' If a mortgage is not filed prior to the delivery
of process to the sheriff, it is void, though filed before a levy
was made. A clerical error in the copy filed, as to the amount
of the mortgage, renders it void as to creditors."
§ 338. Fraudulent conveyances. As we have already seen,
the property transferred in fraud of creditors can always be
attached. We have also stated some general principles appli-
cable to the effect of fraudulent transfers, and some of the
exceptions or limitations of the general rule. We shall now
Consider more in detail what transfers are fraudulent within
1 Briggs v. Parkman, 2 Met. 258; Jones v. Huggeford, 8 Met. 515.
Googins v. Gilmore, 47 Me. 9.
'Hughes v. Corey, 20 Iowa, 899.
Gay v. Bidwell, 7 Mich. 519.
• Hickman . Perrin, 6 Cold. 135.
'Clark v. Gilbert, 14 Weekly Dig. 241; Stewart v. Beale, 68 N. Y.
629; Powers v. Freeman, 2 Lans. 127.
'Gould . Bowne, 4 N. Y. Leg. Obs. 423; Ely v. Cornley, 19 N. Y.
496; Porter v. Parmley, 52 N. Y. 185; Dillingham ♥. Bolt, 87 N. Y.
198; Thompson v. Van Vechten, 27 N. Y. 568; National Bank v. Sprague,
20 N. J. Eq. 13; Edson t. Newell, 14 Minn. 228; Paine v. Mason, 7
Ohio St. 198; Wetherell v. Spencer, 8 Mich. 123.
• Hale v. Sweet, 40 N. Y. 97.
Ely v. Cornley, 19 N. Y. 496; sed contra, as to an immaterial vari-
ance, Dane v. Mallory, 16 Barb. 46.
PROPERTY SUBJECT TO ATTACHMENT. 259
Fraudulent Transfers-Voluntary Conveyances.
the rule. Transfers made in good faith are fraudulent as to
creditors if the necessary effect is to withdraw from levy
sufficient property to prejudice the enforcement of their
claims. The law presumes the intent from the result in
such cases. The law looks to the effect, to construe the act.
It therefore charges the converse of the rule, that if a creditor
is so protected as not to be prejudiced by a transfer, he cannot
attack it for mala fides.*
The mere fact of existing debts will not avoid a voluntary
conveyance made in good faith if the grantor does not divest
himself of the means of payment,' although, through unfore-
seen circumstances, he subsequently defaults on prior debts.*
But this rule is sufficiently flexible to meet the peculiar cir-
cumstances of each case. Thus, the New York Court of
Appeals, in Carpenter v. Roe,' held, that as to existing cred-
itors such a transfer is colorable where the solvency of the
grantor was at the time contingent upon the fluctuation of the
market, although he was neither insolvent nor in contempla-
tion of insolvency. By some decisions this rule is disputed
1 Phelps v. Curts, 8 C. L. N. 208; Smith v. Cherrill, 4 L. R. Eq. 890;
Reese R. M. Co. v. Atwell, 7 L. R. Eq. 847; Norton ». Norton, 5 Cush.
524; Potter v. McDowell, 81 Mo. 62; Craig v. Gamble, 5 Fla. 430;
Harvey v. Steptoe, 17 Gratt. 289; Caswell v. Hill, 47 N. H. 407; Shontz
♥. Brown, 27 Pa. St. 123; Holmes v. Penney, 8 K. & J. 90; Worthing-
ton v. Bullett, 6 Md. 172; Parkman v. Welch, 19 Pick. 231; Raymond
. Cook, 81 Tex. 878; Doughty o. King, 2 Stock. 896; Catchings v.
Manlove, 89 Miss. 655; Wellington v. Fuller, 88 Me. 61; Potter v. Mc-
Dowell, 81 Mo. 62; Skarf v. Soulby, 1 Mac. & G. 864.
Pell. Tred well, 5 Wend. 661; Manders v. Manders, 4 Irish Eq.
134; Hester v. Wilkinson, 6 Humph. 215.
* Van Wyck v. Seward, 6 Paige, 62; Jackson v. Peek, 4 Wend. 802;
Dunlap . Hawkins, 2 S. C. (N. Y.) 292; Smith ». Lowell, 6 N. H. 67;
Abbe ». Newton, 19 Conn. 20; Bracket v. Waite, 4 Vt. 889; Taylor v.
Eubanks, 8 A. K. Marsh. 239; Kipp v. Hanna, 2 Bland 26; Posten v.
Posten, 4 Whart. 27.
Babcock .. Eckler, 24 N. Y. 623; Childs . Connor, 6 J. & Sp.
10 N. Y. 227.
471.
A
260
THE LAW OF ATTACHMENT.
Fraudulent Transfers-General Assignments.
entirely, and the gift is voidable by existing creditors without
regard to its value, or the circumstances, or intention of the
donor.' Within certain specified rules of law, however, the
question of fraud in each case must be determined by a verdict
of the jury.'
In regard to the effect of a voluntary conveyance upon
subsequent creditors, it is only necessary to add to what we
have previously stated that they assume all the rights and
privileges of existing debts where they were created for the
purpose of paying them, or in the ordinary course of business
they assumed the position of the former liabilities. And
where a person about to engage in a new business conveys the
bulk of his property to his wife without consideration, as a
protection from the hazards necessarily involved therein, such
conveyance is void as to subsequent creditors. Where the
intent of a transfer is to delay creditors, the rule is applicable
the same as if the purpose was to defraud them."
§ 339. An assignment for the benefit of creditors is valid,
if made in proper form and in good faith, although it neces-
sarily tends to delay the rights of individual creditors," and
1 See Freeman on Executions, § 142; Reade v. Livingston, -8 Johns.
Ch. 481, Choteau v. Jones, 11 Ill. 818; Bogard v. Gardley, 4 8. & M.
802; Foote . Cobb, 18 Ala. 586; O'Daniel v. Crawford, 4 Dev. 197;
Kissam. Edmondson, 1 Ired. Eq. 180.
* Jackson v. Timmerman, 7 Wend. 436; Bennett v. McGuire, 58 Barb.
625.
Infra, § 335.
• See Savage v. Murphy, 84 N. Y. 508.
Case v. Phelps, 89 N. Y. 164.
• Van Nest v. Yoe, 1 Sandf. Ch. 4; Planck v. Schermerhorn, 8 Barb.
Ch. 644.
But such a transfer is not fraudulent per se. Rokenbaugh v. Hubbell,
15 Law Rep. 95; Ogden v. Petters, 21 N. Y. 23.
'Hauselt v. Vilmar, 11 J. & Sp. 574; but this presumption of valid-
ity will be lost where it appears from the face of the instrument, or by
proof aliunde, that the assignor intended in fact to hinder and delay his
creditors, as where the assignment contained a provision that the
assignee may have the right to compromise with the creditors if, “in his
•
PROPERTY SUBJECT TO ATTACHMENT. 261
Fraudulent Transfers-General Assignments.
although (except where prohibited by statute) one creditor is
preferred over another. An attachment may issue against the
leviable property assigned if the assignment is void either on
the ground of fraud or irregularity. In the latter case, the
delay vitiates the instrument. As it is only the affirmative
grant by statute that permits a general assignment to hinder the
enforcement of a debt, the moment that it is ascertained that
the statute has been departed from in the execution of the
instrument the creditor may assume his rights and levy upon
the estate.
$340. What facts renders an assignment void on its face.
Unless permitted by statute, an assignment is void, 1st, which
permits the sale of goods on credit;' 2d, which exempts the
assignee from all loss except for gross negligence or willful
misfeasance, or provides that he shall not be held accountable
for the defalcation of any clerk employed by the assignors;"
3d, which stipulates that the proceeds shall be distributed pro
rata among all creditors who shall release the assignor in full ;*
opinion, it would be advantageous to them and to the assignor;" the
court bolding that such a clause was indicative of an intent to delay the
payment of the debts, and to create a trust for the use of the assignor,
which in either case rendered the assignment void. (McConnell ..
Sherwood, 84 N. Y. 522.)
'Barney v. Griffin, 2 N. Y. 366; Burdick v. Post, 6 N. Y. 522;
Nicholson. Leavitt, 6 N. Y. 510; Porter v. Williams, 9 N. Y. 142;
Kellogg . Slauson, 11 N. Y. 302; Keep . Sanderson, 12 Wis. 852;
Carr v. Van Loesen, 26 Hun, 24; Bowen v. Parkhurst, 24 Ill. 257. Au-
thorizing payment by "money or available means " has the same effect.
Brigham v. Tillinghast, 13 N. Y. 215. But credit sales are permitted
in some states. See Baldwin v. Peet, 22 Tex. 712; Hoffman v. Mackall,
5 Ohio, 85; Berry D. Hayden, 7 Iowa, 472.
• Olmsted ⚫. Herrick, 1 E. D. Sm. 810; Litchfield . White, 7 N. Y.
438.
* Van Nest v. Yoe, 1 Sand. Ch. 4.
♦ Wakeman v. Grover, 4 Paige, 23; Hyslop v. Clarke, 14 Johns. 458;
Spaulding. Strang, 82 Barb. 235; Butler v. Jaffray, 12 Ind. 504; At-
kinson v. Jordan, 5 Ohio, 295; Pearson v. Crosby, 23 Me. 261; Swearin-
gen v. Slicer, & Mo. 241; Hurd v. Silsby, 10 N. H. 108; Graves v. Roy,
262
THE LAW OF ATTACHMENT.
Fraudulent Transfers-General Assignments.
(4th) which authorizes the assignee to " manage and improve
the estate,' or to work up unfinished material at the expense
of the assigned fund ;' (5th) which gives the right to withhold
a distribution until such times as the assignee, in his discretion,
sees fit to make it ;* (6th) which contains a beneficial reserva-
tion or advantage for the assignor or his family, as by stipulat-
ing that assigned property should be leased to the assignor's
wife, or providing for the support of his family,' or securing
by means of a preference either an indirect benefit to himself,"
or the future control of the property or its proceeds,' or re-
quiring a return of the property upon the payment of only a
portion of his debts, or stipulating for his own employment by
the assignee at such price as he should deem proper,' or re-
serving money to pay the expense of litigation," or providing
for his benefit in any manner prior to the satisfaction of all
his debts from the proceeds of the estate;" (7th) which contains
any special limitations on the power of the assignee incon-
sistent with his duty to use the entire estate in payment of all
99
18 La. 454; Bridges . Hindes, 16 Md. 104; Gimell v. Adams, 11 Humph.
(Tenn.) 288; Conkling . Carson, 11 Ill. 503; sed contra, Nostrand ♥. At-
wood, 19 Pick. 281; Lea's Appeal, 9 Pa. St. 504; Spencer v. Jackson, 2
R. L. 85; Nioliu. Douglas, 2 Hill's Ch. 443; Brashear. West, 7 Pet.
608.
¹ Schlussel. Willett, 84 Barb. 615.
* Dunham v. Waterman, 17 N. Y. 9.
'D'Ivernois v. Leavitt, 8 Abb. 59.
• Dolson v. Kerr, 5 Hun, 643.
'Henderson .. Downing, 24 Miss. 106; 'Richards o. Hazzard, 1 Stew.
& P. 139; Johnston v. Harvy, 2 Pen. & W. 82.
Elias. Farley, 8 Keyes (N. Y.) 898.
Haydock v. Coope, 53 N. Y. 68.
Strong. Skinner, 4 Barb. 546; Barney v. Griffin, 4 Sandf. Ch.
552; Austin v. Bell, 20 Johns. 442.
• McClurg v. Lecky, 8 Pen. & W. 83.
10 Mead . Phillips, 1 Sandf. Ch. 83.
11 Mackie v. Cairns, 5 Cow. 547; Goodrich . Downs, 6 Hill, 438;
Judson v. Gardner, 4 N. Y. Leg. Obs. 424; Green . Branch Bank, 83
Ala. 648; Quarles v. Kerr. 14 Gratt. 48; Green v. Trammel, 8 Md. 11;
Austin ®. Johnson, 7 Humph. 191; Faunce v. Lesley, 6 Pa. St. 121.-
PROPERTY SUBJECT TO ATTACHMENT. 203
Fraudulent Transfers-General Assignments.
the existing debts of the assignor, as by suspending his action
for a certain time for the purpose of enabling the assignor to
pay off the debts,' or conferring the right upon the assignee to
terminate the trust by resignation, or reserving the power of
revocation,' or leaving the uses of the trust to the subsequent
determination of the assignor, or authorizing the application
of a portion of the proceeds of the estate to future liabilities ;*
(8th) which permits the assignee to make loans on the assigned
estate;* (9th) which provides for the payment of a fictitious
preference either in the assignment or the schedules,' or
authorizes the assignee to change the order of the prefer-
ences, or provides for the declaration either by the assignor
or assignee of future preferences; (10th) which authorizes the
payment to the assignee of a reasonable fee over and above
his expenses and commissions."
$341. Presumption of fraud in general assignments. There
are many circumstances that partake to a certain extent of the
nature of the foregoing vitiating elements, but which are held
either to raise only rebuttable presumptions of fraud or to be
¹ Whallon v. Scott, 10 Watts, 237.
* Smith. Hurst, 22 L. J. Ch. 289; S. C. 10 Hare's Ch. 30; Riggs v.
Murray, 2 Johns. Ch. 505; Hyslop v. Clarke, 14 Johns. 458; Cannon «.
Peebles, 4 Ired. 204.
* Grover o. Wakeman, 11 Wend, 187;: Burbank v. Hammond, 8 Sum-
ner, 429.
Lansing . Woodworth, 1 Sandf. Ch. 48; and see Butt . Peck, 1
Daly, 83.
5 Sheppards. Turpin, 8 Gratt. 373.
• Webb v. Daggett, 2 Barb. 9; Smith . Howard, 1 Sheld. 5. This
rule will apply, though there is an oral trust to real creditors. Frazier v.
Truax, 27 Hun, 587.
Terry. Butler, 43 Barb. 895; American Exchange Bank v. Webb,
86 Barb. 291.
• Strong . Skinner, 4 Barb. 540.
'Averill v. Loucks, 6 Barb. 470; Sheldon v. Dodge, 4 Den. 217; Bar-
num ♥. Hempstead, 7 Paige, 568; Boardman v. Halliday, 10 Paige, 223.
10 Nichols v. McEwen, 17 N. Y. 22; Iselin v. Dalrymple, 27 How. Pr.
137; Campbell ». Woodworth, 24 N. Y. 804; Jacobs v. Remsen, 86 N. Y.
668.
264
THE LAW OF ATTACHMENT.
Fraudulent Transfers-General Assignments.
66
wholly free therefrom. Thus, a covenant by the assignces that
they will secure a release of all the creditors, with certain ex-
ceptions,' does not render the assignment void, per se. Neither
does a provision in the assignment authorizing the assignce to
compromise or compound doubtful claims; or to pay taxes,
assessments, etc., upon the property if a sale within a reason-
able time is contemplated; or to sell the property at public or
private sale; or to dispose of it in such time and in such
manner as may be most conducive to the interest of the
creditors" of the assignor, "and convert the same into money
as soon as consistent with such interests;" or "upon such
terms and conditions as in their judgment might appear best
for all parties;"" or to sell only for cash;' or exonerating the
assignee from liability to account for claims that he is not able
to collect ;" or giving him an annual compensation,' or a “just
and reasonable compensation for labor, time, services, and
attention;"" or which omits all reference to securities held by
a preferred creditor;" or which prefers a debt which is voidable
under the statute of frauds" or which is usurious," or out-
'Hastings. Belknap, 1 Den. 190.
* Dow v. Platner, 16 N. Y. 562; Ginther v. Richmond, 18 Hun, 232;
Coyne v. Weaver, 84 N. Y. 886; McConnell v. Sherwood, 84 N. Y. 522;
• Morrison • Atwell, 9 Bosw. 503.
4 Halstead v. Gordon, 84 Barb. 422.
B Jessup v. Halse, 21 N. Y. 168; and see, to the same effect, Benedict
. Huntingdon, 32 N. Y. 219; Townsend . Stearnes, 32 N. Y., 209;
Clapp v. Utley, 16 How. 384; Whitney v. Krows, 11 Barb. 198.
Kellogg . Slawson, 11 N. Y. 802. See, also, Bellows v. Patridge,
19 Barb. 176; Ogden v. Peters, 21 N. Y. 23; Clark . Fuller, 21 Barb.
128; Wilson v. Ferguson, 10 How. Pr. 175.
Grant. Chapman, 38 N. Y. 293; Carpenter . Underwood, 19
N. Y. 520; Stein v. Fisher, 32 Barb. 198.
• Casey v. James, 37 N. Y. 608.
• Keteltas v. Wilson, 36 Barb. 298.
10 Campbell v. Woodworth, 24 N. Y. 304. 8. P., Jacobs v. Remsen, 36
N. Y. 608. This is on the presumption that the amount paid will not in
either event exceed the amount of the commissions fixed by law.
11 Stern . Fisher, 82 Barb. 198.
"Livermore v. Northrup, 44 N. Y. 107.
18 Chapin . Thompson, 80 N. Y. 275.
PROPERTY SUBJECT TO ATTACHMENT. 265
Fraudulent Transfers-General Assignments.
lawed or fully secured otherwise; or which contains a con-
ditional preference in favor of all who would execute a release
on payment of fifty per cent. in full discharge of their claims
as against the other creditors.*
§ 342. Colorable acts not apparent on the face of the assign-
ment. I have, so far, considered the effect only of such facts
as are apparent on the face of the assignment; but though
correct in form, it may be avoided if, by extrinsic facts, it be
shown to have been executed in bad faith; for where the
fraud appears, either from the face of the instrument or by
proof aliunde, an assignment affords no protection to the
assignee as against the sheriff who acts in behalf of execution
creditors.'
8343. Extrinsic fraud must be proven, not presumed.
Circumstantial evidence is sufficient proof if it clearly warrants
the inference that fraud existed in the mind of the assignor
at the time of the execution of the instrument, and was an in-
centive to its execution. Subsequent acts, either of the assignor
or assignee, will not vitiate it if valid ab initio, although, so
far as they indicate a previous design, they may be shown for
that purpose. If when taken together and aggregated they
are consistent with an honest intent, the assignment will stand.*
The same principle applies to the facts appearing on the face
of the instrument. It is not enough that fraud may be spelled
out from the language used: the whole instrument, when
taken together, must clearly evidence a design on the part of
the assignor that is plainly inconsistent with an honest and
lawful intent.*
1
¹ Strong v. Skinner, 4 Barb. 546. See Bank of Silver Creek v. Tal-
cott, 22 Barb. 550.
Spaulding v. Strang, 37 N. Y. 185 and 88 Id. 9. See Renard ♥.
Maydore, 25 How. Pr. 178; Low v. Graydon, 50 Barb. 414.
• McConnell . Sherwood, 61 How. 67.
• Shultz ». Hoagland, 85 N. Y. 464.
Townsend. Stearns, 82 N. Y. 209; Benedict . Huntington, 82
N. Y. 219.
266
THE LAW OF ATTACHMENT.
Fraudulent Transfers-General Assignments.
8 344. The schedules and bond. Athongh in New York
state the assignment and schedules are to be construed as
forming one instrument,' yet under the present statute the
assignment is not void per se if neither the schedules' nor the
bond' is filed. The schedules, when filed by the assignor,
being held to relate back to the time of the assignment and
form a part of it, it follows that any fraudulent omission or mis-
statement therein will be equally fatal as if the schedules were
included within the assignment. It is on this ground that the
courts have formulated the rule that if the schedules omit a
portion of the property or direct the payment of an excessive
amount to any creditor, and they are executed by the assignor
with intent thereby to make a fraudulent disposition or reser-
vation of a portion of the estate, the fraud relates back to
and is charged upon the assignment itself so as to render it
void.
But fraud must be shown, either from the character of the
property omitted or debt erroneously inserted, or by outside
proof, to bring the case within the rule. Thus, where it con-
sists in leaving out a worthless demand, or where a mortgage
on record in the assignor's name and a small deposit in a
bank, delivered to the assignee at the time of the assignment
but not inserted in the schedules, were omitted from the
schedules by mistake, the transaction is not even colorable,
and the general rule is not applicable. So, where, from the
circumstances of the case, the exact amount due to a consignor
for memorandum goods sold by the assignor could not be
ascertained and the claim was preferred in a specific sum,
'Terry o. Butler, 43 Barb. 895.
• Cunningham v. Freeborn, 1 Edw. Ch. 256; Produce Bank v. Morton,
67 N. Y. 199; Ludington's Petition, 5 Abb. N. C. 807.
* Brennan ⚫. Willson, 71 N. Y. 502; Bostwick v. Burnett, 74 N. Y.
817; Von Hein v. Elkus, 8 Hun, 516; Plume, etc. Manufacturing 'Co. v.
Strauss, 17 Hun, 586; Worthy v. Benham, 18 Hun, 176.
* De Camp v. Marshall, 2 Abb. (N. 8.) 373; Terry v. Butler, 43 Barb.
895.
Shultz . Hoagland, 85 N. Y. 464; and to same effect see Hoyt
⚫. Godfrey, 88 N. Y. 669.
PROPERTY SUBJECT TO ATTACHMENT. 267
*
Fraudulent Transfers-General Assignments.
which subsequently proved to be in excess of the actual lia-
bility, the court held that in the absence of evidence of fradu-
lent intent the assignment must be upheld.'
In the case of an assignment made with preferences stated
on a separate schedule it was formerly held that the fact that
such schedule was not attached until a day or two after execu-
tion would not invalidate the assignment. This practice
forms an open door to fraud, and in effect permits the declara-
tion of future preferences, which has always been condemned
by the court. The rule has since been established that the
assignment must either designate all the preferences, or they
must be included in a schedule which is attached prior to its
execution and acknowledgment, or the instrument will be
void as to general creditors. But where the assignment is
without preferences, and covers in form all the property, the
omission to annex a schedule which is referred to as "a sched-
ule whereof is hereto annexed" does not vitiate the assign-
ment. But if it purports to assign "all the property particn-
larly enumerated and described in a schedule annexed," and
no schedule is annexed, it is insensible and void as against
attaching or execution creditors."
§ 345. A general assignment by a solvent person neces-
sarily hinders and delays his creditors without producing any
corresponding good to any of them. It cannot be said to be
for the "benefit of his creditors" when all of them are sure to
be paid in the ordinary course of business. Such an instru-
ment is therefore looked upon great suspicion; and where, from
the surrounding circumstances, it is evidently but a cover for
delay the courts will, on the application of a creditor,
declare it null and void."
1 Whiting v. Lebenheim, 14 Weekly Dig. 415.
Hotop. Neidig, 17 Abb. Pr. 332.
'Kercheib .. Schlop, 49 How. 284.
• Wronkav v. Killeen, 3 Law Bull. 81.
Moir . Brown, 14 Barb. 89.
• Van Nest v. Yoe, 1 Sandf. Ch. 4; Rokenbaugh . Hubbell, 15 Barb.
53, n.; Planck v. Schermerhorn, 8 Barb. Ch.644; Ogden . Peters, 21
268
THE LAW OF ATTACHMENT.
Fraudulent Transfers General Assignments.
§ 346. Assignments by partners. The assignment of a
copartnership for the benefit of the firm creditors cannot be
set aside on the application of individual creditors of one or
more members of the firm on the ground that it provides for
a return of the surplus to the assignors, without arranging for
the payment of individual liabilities, except where the prop-
erty covered by the assignment includes real estate held in
common by the partners.*
In equity the property of a copartnership must first be
applied to the payment of the firm debts; any appropriation
thereof to the payment of individual debts is illegal until the
joint debts have been extinguished; hence, a general assign-
ment by a firm which prefers an individual creditor, leaving
firm debts unpreferred, is fraudulent and void."
The same principle applies where the result is reached in-
directly by each partner withdrawing, so as to permit the
sole member of the firm to make an individual assignment
covering the former partnership assets, and preferring his in-
dividual liabilities. But if the debt preferred was at the time
of the assignment one which the firm in good faith had as-
sumed to pay and become legally liable for, the fact that it
N. Y. 23; but an assignment by a solvent is not void per se. See
Ogden v. Peters, 21 N. Y. 23.
1 Bogert v. Haight, 9 Paige, 297.
' Collomb. Caldwell, 16 N. Y. 484.
• Wilson v. Robertson, 21 N. Y. 587; Hurlbert v. Dean, 2 Keyes, 97
(S. C., 2 Abb. Dec. 428); Shiele v. Healy, 6 How. Pr. 73. In Kemp v.
Carley (3 Duer, 1), the court held that such an assignment was only void
as to the firm creditors. In Cox ». Platt (32 Barb.126), it was adjudged
that it would not be void per se, and that in case it could be shown to
be made in good faith, the proper remedy would be in equity for a proper
distribution of the fund.
4 Heye v. Bolles, 2 Daly, 231 (S. C., 83 How. Pr. 266.)
As opposed
to the general rule herein before stated, in part, see the early decisions of
Kirby. Schoonmaker, 8 Barb. Ch. 46; Nicholson v. Leavitt, 4 Sand.
252; Van Rossum v. Walker, 11 Barb. 237: Smith v. Howard, 20 How.
Pr. 222.
PROPERTY SUBJECT TO ATTACHMENT. 269
Fraudulent Transfers-General Assignments.
was originally an individual debt will not invalidate the
assignment.'
Where the assignment covers individual as well as partner-
ship property, and prefers individual debts, it may be sustained
upon affirmative proof that the individual preferences can be
paid out of the individual property of each member against
whom the same is chargeable.' But such an assignment, which
prefers all the partnership debts, and then provides for the
payment of all individual liabilities pro rata, is void as to the
latter class if the amount owing by the partners is unequal
and the assignors are insolvent, both as copartners and indi-
viduals.'
8 347. Defective execution of assignments. Although an
attachment cannot issue on the ground of a void general
assignment without it was also fraudulent, yet, if it was
granted for proper cause, the effects covered by such a transfer
may be levied upon without regard to the reasons for its in-
validity. Hence arises the necessity of considering the irregu-
larities which will invalidate an assignment although made in
good faith. It must be borne in mind that the law looks with
great disfavor upon preferential assignments. They are only
permitted in a few states, and in the absence of a general
bankrupt law, to which they are specially odious. It is there-
fore obvious that they can only be upheld by a strict observ-
ance of the statutory provisions creating the right.
§ 348. An assignment by partners and co-tenants must be
executed by all the parties interested therein. There are no
exceptions to this rule, but there are decisions showing what
transfers are not within its provisions. Thus, an assignment
will be upheld though one of the partners executing it was an
¹ Smith v. Howard, 1 Sheld. 5; Turner v. Jacox, 40 N. Y. 470.
'Knauth . Bassett, 84 Barb. 81.
'O'Niel v. Salmon, 25 How. Pr. 246. To the same effect, see Lester
v. Abbott, 28 How. Pr. 488.
270
THE LAW OF ATTACHMENT.
Fraudulent Transfers-Change of Possession.
infant,' or executed it through another by power of attorney.'
In order to invoke the rule, it is necessary to show that the
persons claimed to be partners, and who did not sign the in-
strument, were in fact members of the assignor's firm at the
time of the execution of the instrument; not only as to third
parties but inter se, the only question being whether it was
signed by all the joint owners of the property."
$ 349. The acknowledgment. The statute being strictly
construed will not permit the substitution for an acknowledg-
ment before a notary of the affidavit of a subscribing witness,
although so drawn as to be an equivalent under the statute to
an acknowledgment for the purpose of recording a deed.*
When the assignment is executed by a third party under a
power of attorney, the acknowledgment of such agent is held
to answer the requirements of the statute."
An absolute bill of sale, if in fact made in trust for the
benefit of creditors, is void unless acknowledged and recorded
in the manner required by the statute relating to general
assignments.
§ 350. Change of Possession. Rule in general assignments
and other transfers. Section 5 of the New York statute of
frauds' provides that "every sale made by a vendor of goods
and chattels in his possession or under his control, and every
assignment of goods and chattels by way of mortgage or secu-
rity, or upon any condition whatever, unless the same be ac-
companied by an immediate delivery, and followed by an
actual and continued change of possession of the things sold
¹ Yates v. Lyon, 61 N. Y. 844.
Lowenstein ⚫. Flauraud, 11 Hun, 899.
• Adee v. Cornell, 25 Hun, 78.
The ac-
• See Cook v. Kelly, 12 Abb. Pr. 35; S. C., 14 Id. 466.
knowledgment according to the statute is essential. Hardman v. Bowen,
89 N. Y. 196. Smiths. Boyd, 10 Daly, 149.
Lowenstein. Flauraud, 11 Hun, 899.
Briton. Lorenz, 45 N. Y. 51.
12 R. S. 186.
PROPERTY SUBJECT TO ATTACHMENT. 271
·
Fraudulent Transfers-Change of Possession.
mortgaged or assigned, shall be presumed to be fraudulent and
void as against the creditors of the vendor, or the creditors of
the persons making such assignment, or subsequent purchasers
in good faith; and shall be conclusive evidence of fraud unless
it shall be made to appear on the part of the persons making
such sale or assignment that the same was made in good faith,
and without any intent to defraud such creditors or pur-
chasers." It will be noticed that the effect of this statute is
only to make such tranfers prima facie void. The law is
different as to conveyances intended to operate as a mortgage
of goods. They are made, by a subsequent statute,' absolutely
void unless filed. The section in question reads as follows:
"Every mortgage or conveyance intended to operate as a
mortgage of goods and chattels hereafter made, which shall
not be accompanied by an immediate delivery, and be followed
by an actual and continued change of possession of the things
mortgaged, shall be absolutely void as against the creditors of
the mortgagor, and as against subsequent purchasers and
mortgagees in good faith, unless the mortgage, or a true copy
thereof, shall be filed as directed in the succeeding section of
this act."
Although a conveyance in trust for the payment of a debt
partakes of the nature of a mortgage, it is evident that a general
assignment will not be included in the latter provision relating
to chattel mortgages. But a bill of sale absolute on its face,-
if given as collateral security, will be held void per se unless
filed as a chattel mortgage."
The distinction between a general assignment and a mort-
gage is this: the former is given to procure the immediate
payment by a sale of the property transferred, and the latter
to secure the future payment primarily by the mortgagor-of
the debts affected thereby. It may be stated, therefore, that
L. 1833, Ch. 279, § 1.
Tyler . Strang, 21 Barb. 198. That such a transfer is a chattel
mortgage, see Bissell. Hopkins, 8 Cow. 166; Dunham v. Whitehead,
21 N. Y. 181; Leitch . Hollister, 4 N. Y. 211; Johnson v. Crofoot, 53
Barb. 574; Smith. Beattie, 81 N. Y. 542.
K
272
THE LAW OF ATTACHMENT.
Fraudulent Transfers-Change of Possession.
in the case of general assignments and other transfers, except
chattel mortgages, the effect of a want of a change of posses-
sion, in this state, is simply to render the transfer prima facie
void as to creditors; and this is the general rule in this
country.'
In several of the states, however, the former common-law
rule prevails, and the effect of change of possession is to
render the transfer fraudulent per se.
The leading decision to this effect in England is the Twine
case, 3 Coke, 80; and in this country, is Hamilton v. Russel
(1 Cranch, 309); the court in the latter case holding that
"fraudulent conveyances, which are made to secure to a debtor
a beneficial interest, while his property is protected from
creditors, will be most effectually prevented by declaring that
an absolute bill of sale is itself a fraud unless possession ac-
companies and follows the deed." This rule is followed in
many of the earlier decisions in the Federal courts,' and is still
controlling in some of the states.
1 Terry. Butler, 43 Barb. 895; Connah v. Sedgwick, 1 Barb. 210;
Griswold v. Sheldon, 4 N. Y. 580.
* Martrick v. Linfield, 21 Pick. 825; Brooks . Powers, 15 Mass. 244;
Ingalls. Herrick, 108 Mass. 351; Cutter . Copeland, 18 Me. 127;
Oliver ♥. Eaton, 8 Mich. 114; Field . Strong, 2 Eng. (Ark.) 269;
George v. Norris, 23 Ark. 128; Upson v. Raiford, 29 Ala. 195; Com-
stock. Rayford, 12 8. & M. (Miss.) 369; Sherron v. Humphreys, 2
Green (N. J.), 217; Kane o. Drake, 27 Ind. 82; Rogers v. Dare, Wright
(Ohio), 136; Howell v. Elliott, 1 Dev. (N. C.) 76; Wiley v. Lashlee, 8
Humph. (Tenn.) 717; Van Hook . Walton, 28 Tex. 59; Thornton v.
Tandy, 39 Tex. 544; Anderson v. Fuller, 1 McM. Eq. 27; Beek v. Massey,
11 Rich. 14; Smith v. Welch, 10 Wis. 91; Bullis. Borden, 21 Wis.
136; Forkuer o. Stuart, 6 Gratt. (Va.) 197.
Moore . Ringgold, 8 Cranch C. C. 434; Hamilton . Franklin, 4
Cranch C. C. 729; Comly v. Fisher, Taney, 216; Allen . Massey, 2
Abb. U. S. 60; Phetti placev. Sayles, 4 Mason, 812.
• Webster v. Peck, 81 Conn. 495; Hodgkins . Hook, 23 Cal. 581;
Corgan v. Frew, 89 Ill. 81; Prather v. Parker, 24 Iowa, 26; Sanders v.
Pepoon, 4 Fla. 465; Bowman v. Herring, 4 Harring. (Del.) 458; Hudson
*. Warner, 2 H. & G. (Md.) 416; Rocheblaws. Potter, 1 Mo. 561; Doack
℗ Brubaker, 1 Nev. 218; Clark v. Morse, 10 N. H. 239; Hart v. F. & M.
Bank, 83 Vt. 252; Dewart v. Clement, 48 Pa. St. 418. And this was
PROPERTY SUBJECT TO ATTACHMENT. 273
Fraudulent Transfers-Change of Possession.
§ 351. Same-distinction between absolute and conditional
sales. A distinction has always been observed between ab-
solute and conditional transfers. While the former, in the
states last above considered, are void unless followed by an
actual delivery of possession, the latter, even in those states,
are only rendered prima facie fraudulent by such omission.
This peculiarity is noted in Hamilton v. Russel (1 Cranch,
309), where Lord Coke is quoted to the effect that “if the
deed or conveyance be conditional, there the vendor's con-
tinuing in possession does not avoid it, because by the terms
of the conveyance, the vendee is not to have the possession
til he has performed the condition ;" and also quotes Judge
Buller for the amplification of the rule to the "distinction
between deeds or bills of sale which are to take place imme-
diately and those which are to take place at some future time.
For, in the latter case, the possession continuing with the
vendor till such future time, or till that condition be per-
formed, is consistent with the deed, and such possession within
the rule as accompanying and following the deed."
Chattel mortgages fall within this provision as to condi-
tional sales; and where the mortgage is properly filed and
contains a clause permitting the mortgagor to retain possession
until default, the presumption of fraud, if any should arise,
ought to be successfully rebutted by an inspection of the
instrument itself. This renders the rule requiring delivery
of possession practically inapplicable to such cases.' General
formerly the rule in New York state. See the leading case of Sturtevant
•. Ballard, 9 Johns. 837, followed by Doane v. Eddy, 16 Wend. 523;
Diver v. McLaughlin, 2 Wend. 596; Stevens o. Fisher, 19 Wend. 181.
¹ Fairbanks. Bloomfield, 5 Duer, 849; Lee . Huntoon, Hoff. Ch.
447. This rule was recognized at common law (McGowen v. Hoy, 5 Litt.
248), and is followed in other localities. See Magee v. Carpenter, 4
Ala. 469; Ash v. Savage, 5 N. H. 545; Snyder v. Hitt, 2 Dana, 204;
U. S. •. Hooc, 8 Cranch, 73; Rose v. Burgess, 10 Leigh, 186; Bucklin ».
Thompson, 1 J. J. Marsh 223; Wolf v. Harris, 4 Mason, 515. But in
some states there is no distinction in this respect between chattel mort-
gages and absolute transfers of personal property. See Woodward v.
Gates, 9 Vt. 858; Trovillo ». Shingles, 10 Watts, 438; Rood v. Welch,
A
18
274
THE LAW OF ATTACHMENT.
Fraudulent Transfers-Change of Possession.
assignments are not conditional sales within this rule. The
transfer, so far as the property is concerned, is absolute; the
assignee is to return the surplus of the proceeds derived from
a sale of the goods. So far as the specific property transferred
is concerned, the assignment is absolute, and, unless followed by
immediate and continued change of possession, is presumptive-
ly fraudulent.
§ 352. Exceptions to the rule requiring a change of posses-
sion. The rule requiring an actual change of possession refers
only to cases where such a change is practicable. While port-
able property, capable of delivery from hand to hand, is always
presumed to belong to the person who has possession of it,
the presumption is much lighter where the articles are of a
bulky nature, or not capable of mannal possession. This fact
enters into the question of delivery, not only in respect to the
legality of contracts, but to the presumptions of good faith.
Thus, property not in the visible possession of any one, as
timber in the course of transportation,' or logs floating in the
river,' or vessels at sea' or in harbor service, or a herd of
cattle roaming over the plains,' and property in a warehouse,"
or held by a third party as bailee or otherwise,' or bulky
articles not capable of immediate delivery without incurring
unnecessary expenses and departing from the usual course of
business," or where the contract refers to goods not yet mann-
28 Conn. 157; Case v. Winship, 4 Blackf. 425; Ryall v. Rolle, 1 Wils.
260;
Welch . Becker, 1 P. & W. 57.
¹ Dawes v. Cope, 4 Binn. 258.
'Boynton v. Veazic, 24 Me. 236; Sanborn v. Kittredge, 20 Vt. 632,
* Gardner v. Howland, 2 Pick. 599; Ludwig •. Fuller, 17 Mo. 106.
Lampriere v. Pasley, 2 T. R. 485.
* Walden ♥. Murdock, 23 Cal. 540.
• Cartwright o. Phoenix, 7 Cal. 281.
▾ Notification to the bailec is sufficient delivery in such a case. Lynde
. Melvin, 11 Vt. 683; How v. Taylor, 52 Mo. 592; Burge v. Cone, 6
Allen, 412; Carter v. Willard, 19 Pick. 1.
Lay v. Neville, 25 Cal. 553; Chaffin r. Doub, 14 Cal. 884; Conway
. Edwards, 6 Nev. 190; Morse v. Powers, 17 N. II. 286; Merrett v. Miller,
13 Vt. 416; Hutchins v. Gilchrist, 23 Vt. 83.
PROPERTY SUBJECT TO ATTACHMENT. 275
Fraudulent Transfers-Change of Possession.
factured,' may be delivered by symbolical delivery, if that is
the ordinary method of transfer of possession, or by actual .
delivery within such reasonable time after the transfer as may
be practicable; but if neither mode is applicable, then no de-
livery need be made.
In the case of co-tenancy, the question often depends upon
the position of the vendor. If he did not hold the possession,
he cannot, of course, deliver it; but if he is a tenant in posses-
sion, he must place the vendee in the same condition.'
§ 353. A sheriff's sale under execution forms, in most of
the states, an exception to the rule requiring a change of
possession, especially where the property is purchased by a
third party. The rule in Myers v. Hawly' is stated thus:
"Retention of possession by the former owner of a chattel
sold at sheriff's sale is not an index of fraud, because the sale
is not the act of the person retaining, but of the law; and
because a judicial sale, being conducted by a sworn officer of
the court, shall be deemed fair till it is proved otherwise.
It may, like a judgment, be shown to be collusive and fraud-
ulent in fact; but the presumption of the law is favorable to
it in the first instance. A chattel thus purchased, then, may
safely be left in the possession of the former owner on any
contract of bailment that the law allows in any other case.'
Where the sale is made through the sheriff, but is really the
voluntary act of the parties to the execution, the sheriff acting,
in fact, as their agent, instead of in his official capacity,' and
"
¹ Frost v. Willard, 9 Barb. 440.
' Criley *. Vasel, 52 Mo. 445; Brown v. Coleman, 24 IIl. 630.
* Anderson ⚫. Brooks, 11 Ala. 953; Simerson s. Bank, 12 Ala. 213;
Poole v. Mitchell, 1 Hill (S. C.), 404; Water », McClellan, 4 Dall. 208;
Guinard . Aldrich, 10 Rich. Eq. 253; Latimer v., Batson, 7 D. & R.
106; Greathouse v. Brown, 5 Mour. 280; Walter v. Gernant, 13 Pa. St.
515; Dick ». Lindsay, 2 Grant's Cases, 431; Kid . Rawlinson, 2 Bos.
& P. 59; Coleman v. Bank, etc., 2 Strob. Eq. 285.
+ 2 Pen. & W. 481.
'Laughlin . Ferguson, 6 Dana, 118; Stephens v. Barnett, 7 Dana,
257; Kelly . Hart, 14 Vt. 53.
276
THE LAW OF ATTACHMENT.
Fraudulent Transfers-Change of Possession.
where, in an ordinary case, the property is purchased by the
judgment creditor,' the principle above stated has been held
inapplicable.
a
In New York state the same principles apply to execution
sales as to those made in the ordinary method between the
parties, the courts holding that a sheriff's sale is presumptively
fraudulent if the goods are left in the actual possession of the
judgment debtor,' even though held by him as agent of the
purchaser,' or the possession is concurrent. In Masten v.
Webb (19 Hun, 172), Justice LEARNED, in delivering the opin-
ion of the Supreme Court at General Term, says: “Fraud
can be practiced as well by means of a judgment and sale
under execution as by a direct sale from the debtor. And in
either case, where there is no 'immediate delivery' and 'actual
and continued change of possession,' the presumption is, that
the transaction is fraudulent as against creditors. The princi-
ple, if not the literal language, of the statute applies."
$ 354.
"Immediate" and "continued" change of possession.
The New York Statute of Frauds specifies that the sale must
be "accompanied by an "immediate" delivery, and followed
by an “actual and continued change of possession." Whether
the language of the statute is similar to this, or simply re-
quires a delivery within a “reasonable" time, the courts sub-
stantially hold the rule to be that the change must take place
as soon after the sale as the circumstances of the case will war-
rant.'
' Williams v. Kelsey, 6 Ga. 365; Gardenier v. Tubbs, 21 Wend. 169.
• Farrington . Caswell, 15 Johns. 430; Dickinson. Cook, 17 Johns.
´882; Fonda v. Gross, 15 Wend. 628; Gardiņier v. Tubbs, 21 Wend. 169;
Taylor. Mills, 2 Edw. Ch. 818.
• Betz v. Conner, 7 Daly, 550.
• Jones v. O'Brien, 4 J. & Sp. 38. To the same effect, see 10 W. D. 10.
Criley v. Vassel, 52 Mo. 445; Brown v. Coleman, 24 Ill. 630.
2 R. S. ch. vii. tit. 2.
State v. King, 44 Mo. 288; Stephens . Gorham, 5 Cal. 227; Car-
penter v. Clark, 2 Nev. 246; Ingraham . Wheeler, 6 Conn. 277; Wilt
v. Franklin, 1 Binn. 521.
PROPERTY SUBJECT TO ATTACHMENT. 277
Fraudulent Transfers-Change of Possession.
"By an 'immediate delivery' is not meant a delivery in-
stanter; but the character of the property sold, its situation,
and all the surrounding circumstances, must be taken into
consideration in determining whether there was a delivery
within a reasonable time, so as to meet the requirements of the
statute; and this will often be a question of fact for the
jury." The charge of possession must not only be actual but
"continued." In New York this rule is strictly observed, the
courts holding that if after an interval of time, however long,
the vendor regains possession, the sale is presumptively fraudu-
lent; although it seems that after there has been a bona fide
change of possession, an occasional use of the property by the
vendor, with possession sufficient for that purpose, does not
raise the question of mala fides.' The more generally ac-
cepted, and possibly the better, rule on this point is, that it is
sufficient if there is an actual change of possession for a suffi-
cient length of time to give a notoriety to the sale among
those who are familiar with the property. Thus, where the
vendee held possession seven months, and then the vend-
or, who had in the meantime occasionally used the property,
regained possession; so also where the vendee held sole
possession for two months,' and where a mortgagee, after hav-
ing taken possession under the mortgage and foreclosed the
property, loaned it to the mortgagor;' and where a son sold
his piano to his mother before leaving his home, and five
months thereafter returned and resumed his residence with her,"
Stephens v. Gorham, 5 Cal. 227.
• Tallman o. Kearney, 3 S. C. 412; Tilson v. Terwilliger, 50 N. Y. 273;
Einstein. Chapman, 10 J. & Sp. 144.
Knight. Forward, 63 Barb. 811.
Dewey . Thrall, 13 Vt. 281; Norton v. Doolittle, 82 Conn. 405;
Van Pelt v. Lettler, 10 Cal. 894; Clark v. Morse, 10 N. H. 236; Stevens
v. Irwin, 15 Cal. 508.
'Farnsworth v. Shephard, 6 Vt. 521.
• French *. Hall, 9 N. H. 137; Sutton v. Shearer, 1 Grant's Cases, 207;
Brady . Harris, 19 Pa St. 113.
* Funk v. Staats, 24 III. 632.
Graham v. McCreary, 40 Pa. St. 515.
A
278
THE LAW OF ATTACHMENT.
Fraudulent Transfers-Change of Possession.
the courts have held that the change was sufficient in time to
rebut the presumption of fraud. But the change must not be
nominal or a mere cover. If soon after delivery the property is
returned for the alleged purpose of manufacture,' or if within
a couple of weeks there is a resumption of possession, appar-
ently permanent, for any purpose, the transaction becomes
colorable as to creditors or subsequent purchasers in good
faith.'
§ 355. What amounts to a sufficient change of possession.
We have already seen that where the character or situation of the
property is such that a symbolic delivery is necessary or cns-
tomary, that is sufficient. But the rule is limited to such prop-
erty; a constructive, secret, or symbolic delivery of chattels in
the possession of the vendor at the time of the sale is wholly
insufficient as to creditors. The change of possession in such
a case must be visible and substantial, "the vendee must take
the actual possession, and the possession must be open, noto-
rious, and unequivocal, such as to apprise the community, or
those who are accustomed to deal with the party, that the
goods have changed hands, and that the title has passed to the
purchaser. This must be determined by the vendee using the
usual marks and indices of ownership, and occupying that re-
lation to the thing sold which owners of property generally
sustain to their own property."
Where the vendor is permitted to continue the business as
¹ Carter v. Watkins, 14 Conn. 240.
'Morris v. Hyde, 8 Vt. 852; Whitney v. Stark, 8 Cal. 514; Weil .
Paul, 22 Cal. 492; Osborne v. Tuller, 14 Coun. 529; Streeper . Eckart,
2 Whart. 802; Rogers v. Vail, 16 Vt. 827; Stevens v. Irwin, 15 Cal. 503;
Clark v. Morse, 10 N. H. 236.
• Stout v. Rappelhagen, 51 How. Pr. 75; Burnham v. Brennan, 10 J.
& Sp. 49 (reversed on another point in 74 N. Y. 597).
• Claflin v. Rosenberg, 42 Mo. 449; Lesem v. Herriford, 44 Mo. 323;
Burrows v. Stebbins, 26 Vt. 659; Stephenson v. Clark, 20 Vt. 627; Kirt-
land v. Snow, 20 Conn. 23; Cahoon . Marshall, 25 Cal. 197; Lay v.
Neville, 25 Cal. 552; Woods v. Bugbey, 29 Cal. 472; Cadbury v. Nolen,
5 Pa. St. 820.
PROPERTY SUBJECT TO ATTACHMENT. 279
Fraudulent Transfers-Change of Possession.
•
•
the agent' or bailee' of the vendee, or to hold possession con-
jointly with him,' the delivery is held insufficient. In the case
of Betz v. Conner, it appeared that Betz, at sheriff's sale, pur-
chased a brewery and saloon business of Groh, against whom
executions had been issued in favor of a third party, paying.
therefor the full purchase-money in cash. After the sale Betz
took an assignment of the lease, took out the revenue license
in his own name, but hired Groh, for $150 a month, to run
the business for him. The bill-heads, sigus, books, bank ac-
count, etc., was in the name of "Michael Groh, agent." Al-
though the jury held that Betz was a bona fide purchaser of
the property, the court held that the change of possession was
constructive and not actual, and the sale was therefore pre-
sumptively fraudulent and void. But while the continued
connection of the vendor with the business is always a sus-
picious circumstance, it does not follow that he cannot be re-
tained in the service of the vendee where the change of pos
session is open and notorious,* nor that his former employees
shall not also be continued in their customary duties at the in-
stance of the vendee."
•
§
356. What proof is necessary to rebut the presumption of
fraud in such a case. Where there is no delivery of possession,
and the vendor is indebted, the onus is on the vendee to prove
first, that the sale was founded on a valid and sufficient consid-
eration; and, second, that it was made without any intent to
¹ Betz v. Conner, 7 Daly, 550.
'Bacon . Scannell, 9 Cal. 271; Fitzgerald v. Brown, 4 Cal. 289;
Stewart v. Scannell, 8 Cal. 80.
• Burnham v. Brennan, 10 J. & Sp. 49; Kendall v. Sampson, 12 Vt.
515; Braun. Kelly, 43 Pa. St. 104; Stadtler v. Wood, 24 Tex. 622;
Lawrence v. Burnham, 4 Nev. 304; Stiles v. Shumway, 16 Vt. 435; Babb
. Clemson, 10 S. & R. 428.
• Beeks v. Lyon, 21 Conn. 604; Billingsley v. White, 59 Pa. St. 464;
Godchaux v. Mulford, 26 Cal. 817; Rothgerber v. Gough, 52 Ill. 436;
State v. Schulein, 45 Mo. 521; McKibbin v. Martin, 64 Pa. St. 852; Tal-
cox v. Wilcox, 9 Conn. 134.
*Hall. Parsons, 15 Vt. 858; Parker v. Kendrick, 29 Vt. 891; Ford
D. Chalmers, 28 Cal. 18.
280
THE LAW OF ATTACHMENT.
•
Fraudulent Transfers-Fraud of the Vendee.
hinder and delay his creditors. If no such evidence be given
the transaction is fraudulent in law, and the question of intent
is not to be submitted to the jury.' The recital of a consid-.
eration in the assignment is not proof of that fact as to cred-
itors, and an adequate consideration paid is not in itself con-
clusive evidence of bona fides in the absence of a delivery. The
want of delivery must be explained. But the presumption of
fraud in such a case is sufficiently rebutted by showing that
the retention of possession by the vendor was in pursuance of
a legitimate agreement to that effect not inconsistent with the
bona fides of the transaction.*
§ 357. Fraudulent purchase of goods. I have so far con-
sidered only the effect of fraud on the part of the vendor in
attempting to place his property beyond the reach of credit-
ors; but, as to the latter, the effect of the transfer is the same
whether the fraud was on his part or on the part of the vendee.
Where a person, for his own benefit, makes a fraudulent pur-
chase on credit, the vendor may, upon discovering the fraud,
elect to declare the sale void, and sue in replevin for the re-
covery of the property, on the principle that no title passed to
the vendee. The transfer in such a case is voidable, but not
absolutely void. Hence the right must be exercised before the
1 Randall . Parker, 8 Sandf. 69; McCarthy v. McQuade, 1 Sw. 387;
Topping. Lynch, 2 Rob. 484; Ball v. Loomis, 29 N. Y. 412; Curd v.
Miller, 7 Gratt. 185; Mauldlin v. Mitchell, 14 Ala. 814; Nutter v. Harris,
9 Ind. 88; Hartman v. Vogel, 40 Mo. 570; Brooks v. Powers, 15 Mass.
244; Grubbs v. Greer, 5 Cold. 160; Peck v. Land, 2 Kelly, 1; Kendalt ».
Fitts, 2 Foster, 1; Young v. Pate, 4 Yerg. 164.`
* Tifft v. Barton, 4 Den. 171.
* May . Walter, 50 N. Y. 8.
• Archer v. Hubbell, 4 Wend. 514; Bissell v. Hopkins, 8 Cow. 106;
Marsh. Lawrence, 4 Cow. 401; Hall v. Tuttle, 8 Wend. 875; Ferguson
•. Union Furnace Co., 9 Wend. 845; Russell v. Butterfield, 21 Wend.
300.
* Masterton v. Beers, 6 Rob. 368; Keteltas v. Fleet, 7 Johns. 824;
Nichols. Michael, 23 N.Y. 264; Hitchcock v. Covill, 20 Wend. 167;
Hathorn v. Hodges, 28 N. Y. 486.
PROPERTY SUBJECT TO ATTACHMENT. 281
Fraudulent Transfers-Fraud of the Vendee.
property passes into the hands of an innocent purchaser for
value.
·
I have no doubt that this right of election may be exercised
by the creditors of the vendor by attaching the goods in the
hands of the fraudulent purchaser. Property cannot be so`
placed as to be absolutely shielded from levy, and, as no at-
tachment could be made upon such property as the goods of
the purchaser as against the rights of the vendor to secure a
return of the property, it nccessarily follows that the interest
of the latter therein is attachable.
$358. Same-fraudulent suppression of insolvency. Fraud
in the purchase of goods on credit is usually predicated upon
false representations as to the financial condition of the pur-
chaser; but this is not the only means of securing a fictitious
credit. The purchase of goods with the preconceived intcn- -
tion not to pay therefor is such a fraud as to avoid the sale,
whether the design was carried out by false representations or
by a fraudulent suppression of facts known to the purchaser,
but not to the vendor.' The mere fact of the failure to dis-
cloɛe a condition of insolvency is held not to be sufficient to
avoid the sale if there is an honest though abortive determina-
tion to continue in business and pay for the goods. But if
the purchaser was hopelessly insolvent and knew himself so to
be, the courts will hold a suppression of that fact to be equiva-
lent to a false statement of solvency. The question in each
case is: Did the purchaser procure the property with the in-
tent not to pay therefor? The making or suppression of
statements for the purposes of influencing the trade are sim-
ply evidences as to the existence of that fact to be taken in
connection with the other circumstances of the case.
¹ Devoe v. Brandt, 53 N. Y. 462; Hennequin v. Naylor, 24 N. Y. 139;
Byrd. Hall, 2 Keyes, 646; S. C., 1 Abb. Dec. 295; Pike . Wieting;
49 Barb. 814; Brown e. Montgomery, 20 N. Y. 287.
Nichols . Pinner, 18 N. Y. 295.
* Johnson. Monell, 2 Keyes, 655; S. C., 2 Abb. Dec. 470.
282
THE LAW OF ATTACHMENT.
Fraudulent Transfers-By Corporations.
§ 359. False representations. Where reliance is placed
upon false representations there must be proof that they were
made with the intent of securing the purchase in question, or,
at least, of building up a false basis of credit as to future pur-
chases; a mere casual statement not apparently made for such
a purpose is insufficient,' and the statements must either have
been made to the vendor or to other persons for the purpose
of being communicated to him with the design of influencing
his conduct.*
§ 360. Transfers by corporations. A corporation has no
powers other than those conferred by statute, or necessary to
carry into effect those expressly granted.' And the rights
granted generally to corporations are limited in certain respects
to a state of solvency. The powers of insolvent corporations
and individuals in respect to their assets are not the same. It
is provided by the Revised Statutes of New York that "when-
ever any incorporated company shall have refused the pay-
ment of any of its notes or other evidences of debt, in specie
or lawful money of the United States, it shall not be lawful
for such company, or any of its officers, to assign or transfer
any of the property, or choses in action of such company, to
any officer or stockholder of such company, directly or indi-
rectly, for the payment of any debt; and it shall not be lawful
to make any transfer or assignment, in contemplation of the in-
solvency of such company, to any person or persons whatever,
and every such transfer and assignment to such officer, stock-
holder, or other person, or in trust for them or their benefit,
shall be utterly void.”
This provision not only prohibits general assignments,” but
¹ Roone v. Riley, 13 Weekly Dig. 450.
* Van Kleeck v. Le Roy, 87 Barb. 544; 8. C., 4 Abb. Dec. 479.
• New York Firemen Ins. Co. v. Sturges, 2 Cow. 664; People v. Utica
Ins. Co., 15 Johns. 858; Bard v. Chamberlain, 8 Sandf. Ch. 84.
1 R. 8. 603, § 4.
* Sibell v. Remsen, 83 N. Y. 95.
PROPERTY SUBJECT TO ATTACHMENT.
283
*
Fraudulent Transfers-By Corporations,
all transfers by way of preference, while the corporation is in
an insolvent condition. But a transfer of assets in good faith
to secure a present loan does not constitute an illegal prefer-
ence within the meaning of the statute.'
' Holbrook v. Basset, 5 Bos. 147; Nelson v. Wellington, 5 Bos. 178;
Merchant's Bank v. McColl, 6 Bos. 473; Hoyt v. Shelden, 8 Bos. 267;
Brookman v. Metcalf, 32 N. Y. 891; Clark v. Titcomb, 42 Barb. 122.
284
THE LAW OF ATTACHMENT.
Real Estate.
CHAPTER XIX.
REAL ESTATE.
SECTION 361. Although personal property is primarily
liable for the payment of debts, yet in all civilized countries
real estate may be levied upon in the absence of sufficient per-
sonalty to secure the plaintiff's claims. Although this prac-
tice existed at a very early date in the Roman system, it did
not harmonize with the interests of the fendal lords of Eng-
land, who looked only to the duties from landed tenants for
their revenues. Hence, prior to the reign of Edward I., only
the goods and chattels of the debtor and the accrued annual
profits from lands were subject to attachment and levy at the
suit of a subject. When, however, the nation turned from
petty wars to mercantile pursuits, the need of a greater pro-
tection to creditors became apparent to secure a commercial
credit. The civil law provisions were then adopted, and in-
terests in land became subject to levy, after the remedy
against the personal property had been exhausted. This pro-
vision has also been the subject of statutory regulation in the
several states in this country.
§ 362. Pre-requisites to levy on realty. Under the statutes
of some of the states a formal indorsement of the failure to
levy upon sufficient personalty to secure the writ must be made
thereon before attaching the realty.' But it cannot be assumed
¹ Carmichael. Strawn, 27 Ga. 841; Daniels . The Justices, Dudley
(Ga.), 2; Hall v. Shultz, 4 Johns. 240; Neilson. Neilson, 5 Barb.
565; Thatcher v. Powell, 6 Wheat. 119; Andrews. Fleming, 2 Dall. 94;
Whitney. Whitney, 14 Mass. 88; Coe. Wickham, 8 Conn. 889;
Ewing. Hatfield, 17 Ind. 518; Hassell ...Southern Bank, 2 Head
PROPERTY SUBJECT TO ATTACHMENT. 285
Real Estate Attachable Interest therein.
that the fact that, unknown to the officer, the defendant has
personal property sufficient to satisfy the writ, will nullify the
attachment on the real estate. It has even been held that the
defendant, in order to raise objections on this ground, must,
prior to the levy thereon, specifically designate personal prop-
erty sufficient to cover the writ.' But if the property is
shown to be practically valueless, or so covered with mortgages
as to be rendered unsalable, the sheriff may overlook it eu-
tirely and proceed at once against the debtor's landed in-
terests.*
8 363. What interests in real estate are attachable. The
term "real estate,” as used in statutes affecting the levy and
sale of property, includes all lands, tenements and heredita-
ments, and all interests, either in fee or for life, therein; but
excludes a lease for years, or any lesser title than life estates."
It is not necessary that the title should be a vested legal inter-
est coupled with possession. A mere possession constitutes a
leviable interest, though not connected with any title whatever,
and the sale thereof under execution (except where there
is a contrary provision of statute, as in the case of a contract
for the sale of lands in New York state) will place the pur-
chaser in possession, under the same circumstances previously
held by the debtor.
It follows that where the debtor remains in possession of
(Tenn.), 881; Koehler v. Ball, 2 Kans. 160; Brown v. Webb, 1 Watts,
411.
Sloan. Stanley, 11 Ired. (N. C.) 627.
Jones . Lusk, 2 Met. (Ky.) 856.
* Westervelt v. The People, etc., 20 Wend. 416; Pelletreau «. Smith,
80 Barb. 494..
Griffin o. Spencer, 6 Hill, 525; Boughton v. Bank, etc., 2 Barb. Ch.
458; Talbot v. Chamberlin, 8 Paige, 219; Brewster v. Power, 10 Paige,
562; Kellogg #. Kellogg, 6 Barb. 116; Jackson v. Williams, 10 Ohio, 69;
Thomas », Bowman, 80 Ill. 84; Lee v. Crossna, 6 Humph. (Tenn.) 281;
Murray *. Emmons, 19 N. H. 483; Cavender o. Smith, 5 Iowa, 157;
McCaskle. Amarine, 12 Ala. 17.
286
THE LAW OF ATTACHMENT.
Beal Estate-Attachable Interest therein.
lands. under a forfeited title,' or has an absolute right of entry,
althongh possession has not, in fact, been taken thereunder,'
an attachment will lie. Where a levy has been made upon a
right of entry that by time will culminate into a grant of the
fee, the purchaser takes all the interests of the debtor, and the
subsequent grant will enure to his benefit."
§ 364. The interest of a purchaser of real estate at sheriff's
sale, before the period of redemption expires, would seem to
pass under the same rule. Although it has in a few cases been
adjudged not sufficient to support a levy,* the balance of au-
thorities support the general rule in such cases, and affirm the
right of levy both before and after the expiration of the period
of redemption. The legal title and the possessory right re-
maining in the judgment debtor is sufficient to make his inter-
est subject to a levy within the rule as to possession, hereinbe-
fore stated. But the right of the purchaser is more than a mere
equity; he has bought the estate and paid for it, and
although his right of possession and to the full legal title is
contingent upon the election of the debtor, or other interested.
parties, to come in and redeem within a specified time, the
purchaser obtains an equitable estate in the lands, which may
become merged into the fee by simple lapse of time. It is an
inchoate, inceptive title, and the sheriff's deed when executed
takes effect by relation, as of the day of sale. This is such an
* Curtis v. Root, 28 IIL. 867.
• Lanes v. Brant, 10 How. (U. 8.) 848; Jackson v. Varrick, 7 Cow. 238;
Woodman . Bodfish, 25 Me. 817; Bumpas ». Gregory, 8 Yerger, 46;
Inglis v. Sailor's Snug Harbor, 8 Peters, 131; Coombs v. Jordan, 8 Bland
Ch. 812; Falkner ». Leith, 15 Ala. 9.
* Cavender •. Smith, 5 Iowa, 157; Huntingdon v. Grantland, 83 Miss
453; Hall. Heffly, 6 Humph. (Tenn.) 444; Levi v. Thompson, 4 How.
(U. 8.) 17.
*Kidder . Orcutt, 40 Me. 589; Den. Steelman, 5 Halst. 193.
Watson on Sheriffs, 208; Wright . Douglass, 2 N. Y. 873; Whiting
●. Butler, 29 Mich. 129; Page ♥. Rodgers, 81 Cal 293; Slater's Appeal,
29 Penn. St. 169.
PROPERTY SUBJECT TO ATTACHMENT. 287
Real Estate Interest of Mortgagor and Mortgagee.
interest in lands as to rightfully become the subject of attach-
ment.
§ 365. Interest of mortgagor. In case of mortgaged lands
the mortgagor continues to be the owner of the estate until
after decree and sale, and the delivery of the deed under
foreclosure. The mortgage is personal property, and a mere
lien for the payment of a debt. The mortgagee, not hav-
ing any estate in the property itself, it necessarily follows
that the mortgagor's interest, which is erroneously termed an
"equity of redemption," is real estate, and attachable as
such.*
§ 366. When mortgagee may levy on equity of redemption
in a suit upon the mortgage debt. In those states where there
is a right, to redeem property sold on foreclosure more favor-
able in its terms than that existing in the case of a sale under
execution, the mortgagee is not permitted to take the benefit
of the situation by recovering an ordinary judgment on the
debt secured by the mortgage and bidding the property in at
sheriff's sale.' This rule is always enforced where it has a
ہو
·
4 Taylor ♥. Cornelius, 60 Penn. 187; Foote v. Colvin, 3 Johns. 216;
Trimm v. Marsh, 54 N. Y. 599; Waters o. Stewart, 1 Caines Cases, 47;
Shottenkirk v. Wheeler, 3 Johns. Ch. 275; Hulett ». Soullard, 26 Vt. 295;
Stewarto. Crosby, 50 Me. 130; Julian v. Beal, 26 Ind. 220; Fontaine ♥
Beers, 19 Ala. 722; Bagley v. Bailey, 10 Me. 151; Verry v. Richardson,
5 Allen (Mass.) 107; Hawthorne. Bronson, 16 S. & R. 269; Hartwell
• Fitts, 20 Ga. 723; Wooton . Wheeler, 22 Tex. 838; Davis ●. Evans, 5
Ired. 525; State v. Lawson, 1 Eng. 269; Huntington ». Cotton, 81 Miss.
253; Knight . Fair, 9 Cal. 117; Curtis . Root, 28 IIL 867; Trudear ».
McVicar, 1 La. An. 426; Cook v. Dillon, 9 Iowa, 407; Evans v. Wilder, 5
Mo. 313; Morris v. Way, 16 Ohio, 409; Van Ness. Hyatt, 13 Peters,
294; Watson v. Gregory, 6 Blackford, 113; Second Ward Bank s. Up-
mann, 12 Wis. 499; Funk v. McReynold, 33 ILL. 481.
* Powell v. Williams, 14 Ala. 476; Barker o. Bell, 87 Ala. 858; Atkins
*. Sawyer, 1 Pick. 851; Washburn e. Goodwin, 17 Pick. 187; Thorn-
ton . Pigg, 24 Mo. 249; Buck . Sherman, 2 Doug. (Mich.) 176;
v.
Brownstone. Brownston, 4 B. Monr. 535.
288
THE LAW OF ATTACHMENT.
Real Estate Interest of Mortgagor and Mortgagee.
tendency to oppress the mortgagor.' Thus, in New York,
where there is no right to redeem in the case of mortgage
foreclosures, the courts hold that the mortgagee should not
have the power to sell the equity of redemption, upon an
action at law upon the debt, but that justice requires that he
should either proceed at equity on the mortgage or seek other
property for the satisfaction of his debt.' But the mortgagee
may levy upon the equity of redemption under any claim
other than that secured by the mortgage, and thus secure the
desired effect by indirect methods.' And where the debt se-
cured by mortgage is transferred without the security to a
third party in good faith, the latter may treat it as an ordinary
cause of action in assumpsit, and levy upon the mortgaged
property thereunder."
§ 367. When an absolute transfer is a mortgage. A deed
absolute on its face, but given, in fact, as security for a debt,
is in equity a mortgage; but the difference between that and
an ordinary mortgage, so far as creditors are concerned, is this:
the deed transfers the legal title to the grantee, while the
mortgage does not. In such a case the grantor's resulting in-
terest has been considered so far a mere equity as to lead the
courts in some states to hold that it cannot be levied upon as
real estate.
8368. The interest of the mortgagee not in possession being
a mere security, and collateral to the principal debt, is person-
alty, and can only be attached as a chose in action, or, by way
¹ Trimm ♥. Marsh), 54 N. Y. 599; Palmer v. Foote, 7 Paige, 437;
Loomis . Stuyvesant, 10 Paige, 490; Greenwich Bank . Loomis, 2
Sandf. Ch. 270.
* Tice v. Annin, 2 Johns. Ch. 125.
* Freeby . Tupper, 15 Ohio, 467; Crooker. Frazier, 52 Mc. 406;
Pierce . Potter, 7 Watts, 475.
• Waller v. Tate, 4 B. Monr. 534; Crane v. March, 4 Pick. 181.
Thompson . Thornton, 21 Ala. 808; Morris v. Way, 16 Ohio, 469;
Loring v. Melendy, 11 Ohio, 855; Baird e. Kirtland, 8 Ohio, 21; Like
. Mitchell, 8 Yerg. 400.
PROPERTY SUBJECT TO ATTACHMENT. 289
Real Estate-Interest of Vendor and Purchaser.
of garnishment, in connection with the claim secured thereby ;
a levy cannot be made thereon as real estate.'
§ 369. Vendor and purchaser. It may be stated as a general
rule in this country that a person holding a contract for the
purchase of real estate, upon which payments have been made,
has a leviable interest therein, although, strictly speaking, he
holds until the delivery of the deed a mere equity, insufficient
in substance to charge the property with the lien of a judg-
ment against him. This rule is specially true where the ven-
dee is in possession, or where he has performed the contract of.
purchase on his part, and nothing remains but the delivery of
the deed to vest him with the legal title. And where the
title is perfected after the recovery of judgment, the judgment
will become a lien, though before it is so perfected the debtor
assigns his interest therein.*
§ 370. Same-common law rule. It is plain that this general
rule is based upon statutes, as the common law, even subsequent
to the passage of 29 Charles II., did not give to the vendee an
alienable or leviable title until after the payment of the con-
¹ Hendricks v. Robinson, 2 Johns. Ch. 312; Coombs v. Warren, 34
Me. 89; Buford v. Buford, 1 Bibb, 306; Like v. Mitchell, 3 Yerg. 400;
Wilson v. Carver, 4 Hayn. 90; Cautzon v. Door, 27 Miss. 246; Smith v.
Hill, 2 McLean, 446; Lyster v. Dolland, 7 Ves. Jr. 431; Scott v. Scholey, 8
East, 467. This is the rule though the mortgagee has suffered default
by non-payment, and the estate has thus become absolute at law. Jack-
son v. Willard, 4 Jolins. 41. But where the mortgagee las taken posses-
sion the rule is different. Jackson v. Willard, 4 Johns. 41.
* Vierbeller's Appeal, 24 Pa. St. 319; Stevens v. Legrow, 19 Me. 95;
Bryant . Robinson, 16 Mo. 129; Jordan v. Hudson, 11 Tex. 82; Woods
v. Scott, 14 Vt. 518; Leadbetter v. Anderson, Phill. Eq. (N. C.) 323;
Carkhaff v. Anderson, 3 Binney, 4; Patterson's Estate, 25 Pa. St. 71;
Houston. Jordan, 35 Me. 520; Woods v. Scott, 14 Vt. 518; Figg v.
Snook, 9 Ind. 202; January . Bradford, 4 Bibb, 566.
Phillips v. Davis, 69 N. C. 117; Morgan v. Bouse, 53 Mo. 219; Frost
v. Reynolds, 4 Ired. Eq. 494; Pitts o. Bullard, 8 Kelly, 5; Anthony v.
Rogers, 17 Mo. 394.
• Jackson v. Scott, 18 Johns. 94; Jackson v. Walker, 4 Wend. 463.
19
290
THE LAW OF ATTACHMENT.
Real Estate Interest of Vendor and Purchaser.
sideration money; nor did such a right exist prior to that stat-
ute until the actual delivery of the deed of purchase. Hence,
in those states where the common law in this respect still pre-
vails, until the full performance on the part of the vendee
gives him the beneficial interest and the right to an immediate
transfer, the title of the vendor only can be made the subject
of a levy.' This seems to form an exception to the rule that
persons in possession of lands have a leviable interest therein.
In New York, however, prior to the adoption of the provision
of the Revised Statutes, prohibiting the sales of such interests
until a full payment placed the vendee in the position of a
cestui que trust, the general rule, heretofore stated as to pos-
session, prevailed, and a levy could be made against the vendee
in possession, even though his contract of purchase remained
unfulfilled.' But since then the prevailing rule has been fol-
lowed that no real estate levy can be made against the interest
of such a vendee until payment in full.'
§ 371. Exceptions to the rule. Where the contract to con-
vey is verbal, the purchaser does not acquire an attachable in-
terest, until payment or part performance takes it out of the
statute of frauds; nor does he retain such an interest after a
1 Sage v. Cartwright, 9 N. Y. 49; Talbot v. Chamberlin, 8 Paige,
219; Bogert v. Perry, 17 Johns. 851; Boughton . Bank of Orleans, 2
Barb. Ch. 458; Bigelow v. Finch, 17 Barb. 394; Goodwin v. Anderson,
5 S. & M. 730; Elnure . Harris, 13 Ala. 360; Dewey v. Long, 25 Vt.
561; Smith . Ingles, 1 Oregon, 43; Disbrough v. Outcalt, Saxton, 298;
Hanway v. Wallace, 18 Ind. 877; Blight v. Banks, 6 Monr. 92; Ketchum
v. Johnson, 8 Green Ch. 370; McIntyre v. Agricultural Bank, 1 Free.
Ch. 105; Moore v. Simpson, 3 Met. (Ky.) 849; Brunson v. Grant, 48
Ga. 394; Badlam v. Cox, 11 Ired. 456; Leadbetter v. Anderson, Phillips
Eq. 323.
* Jackson v. Scott, 18 Jolins. 94; Jackson v. Parker, 9 Cow. 73.
'Griffin v. Spencer, 6 Hill, 525; Talbot v. Chamberlin, 8 Paige, 219;
Boughton v. Bank of New Orleans, 2 Barb. Ch. 458. As to the general
rule to the same effect, see Badlam v. Cox, 11 Ired. 456; and Ellis v.
Ward, 7 S. & M. 651.
Patterson v. Bodenhumer, 9 Ired. 96.
' Richmond ». Foot, 8 Lans. 244.
PROPERTY SUBJECT TO ATTACHMENT. 291
Real Estate Interest of Vendor and Purchaser.
forfeiture under the terms of a valid contract, or a surrender
in good faith to the vendor.' Where the vendee, after a part
performance, assigns his contract, and the assignee, after mak-
ing improvements, but paying no part of the purchase money,
assigns to a third party, the first assignee never acquires a suf-
ficient title to the lands to charge the same with the lien of
a levy or judgment.'
§ 372. The vendor, prior to the delivery of the deed or to
the full payment by the purchaser, has not only the legal title,
but a beneficial interest in the premises. He is, therefore, the
owner of the lands, subject only to the right of the vendee, by
performance of the terms of the contract of sale, to acquire the
right to a conveyance. It is plain that this is an attachable in-
terest, and it has so been held,' except under the peculiar stat-
utes in North Carolina and Mississippi. Of course, where he
has received payment in full, he holds a mere naked legal title
of no possible benefit to a purchaser at sheriff's sale, and which
cannot be affected by legal process. In fact, the attachment
against the vendor creates a lien against the unpaid purchase
money,' or upon the fee, subject to the beneficial interests of
the vendee, which interests may merge to themselves the entire
estate by complete performance, or, by non-performance, may
be forfeited, giving the vendor the full title.'
8373. Estates held in trust. At common law the interest
of a cestui que trust in real estate could not be attached or be-
come subject to legal process in any form, but by the statute
of 29 Charles II. this difficulty was removed, and trust estates
Alexander. Tams, 13 Ill. 221; Raffensberger v. Cullison, 28 Pa.
St. 426; Mount v. Harris, 9 Miss. 185; Jameson v. Head, 14 Me. 34.
•
* Bogert v. Perry, 17 Johns. 851.
• Patterson's Estate, 25 Pa. St. 71; Riley v. Million, 4 J. J. Marsh. 895.
Folger. Bowles, 72 N. C. 803; Tally v. Reid, 72 N. C. 886;
Money. Dorsey, 7 S. & M. 15.
'Cutting v. Pike, 21 N. H. 347.
• Moyer v. Hinman, 13 N. Y. 180; Manley v. Hunt, 1 Ohio, 257.
'See Blackmer v. Phillips, 67 N. C. 840.
292
THE LAW OF ATTACHMENT.
Real Estate Trust Estates.
became subject to levy to the same extent and under the same
condition as property held by the debtor for his own use and
benefit. Where this, or similar enabling statutes have been
adopted in this country, the san.e rule will apply. In New
York, section 645 of the Code provides that "the real prop-
erty, which may be levied upon by virtue of a warrant of at-
tachment, includes any interest in real property, either vested
or not vested, which is capable of being aliened by the defend-
ant." Whether the interest of a cestui que trust is alienable
by statute depends upon the character of the trust, as specified
by the instrument creating it.
§ 374. Provisions of the Revised Statutes. Section 60 of
the title of the Revised Statutes, relating to "Uses and Trusts
of Estates in Real Property," provides that " every express
trust, valid, as such, in its creation, except as herein otherwise
provided, shall vest the whole estate in the trustees, in law and
equity, subject only to the execution of the trust. The per-
sons for whose benefit the trust is created shall take no estate
or interest in the lands, but may enforce the performance of
the trust in equity."
The next section provides that the person to whom the
land is granted or devised, subject to the execution of the
trust, shall take a legal estate as against all persons, except the
trustee. Section 62 provides that all interests not embraced in
the trust, or otherwise disposed of, shall remain or revert to
the person creating the trust as a legal estate. Section 63
provides that "no person beneficially interested in a trust for
the receipt of the rents and profits of lands can assign, or in
any manner dispose of, such interest; but the rights and inter-
ests of every person for whose benefit a trust for the payment
of a sum in gross is created, are assignable."
§ 375. General rules relating to express trusts. The fore-
going provisions explain themselves. If the cestui que trust
has no interest, except the right to the issues of the estate, his
claim is not attachable. If he eventually is to have the whole
PROPERTY SUBJECT TO ATTACHMENT. 293
Real Estate-Trust Estates.
estate, or any definite part thereof, or any specific sum to be
realized from the estate itself, rather than from the income or
rents and profits thereof, his rights are both alienable and levi-
able by attachment. The decisions uphold this distinction.'
In many of the states any beneficial interest in real estate,
or the income therefrom, is made by statute, subject to the
levy of an attachment or execution.' In New Jersey and
Michigan the old common law rule prevails, and trusts are pro-
tected from judicial writs.'
§ 376.
Resulting trusts. As a general rule, resulting trusts
are governed by the principles applicable to those created by
contract. Hence they are usually considered leviable interests,*
though the opposite rule is held in some of the states. This
difference of opinion results, in most cases, from the peculiar-
ity of local laws. But where real estate is conveyed with
the intent to defraud creditors, a resulting trust in their favor
is created, which is recognizable in nearly every state. The
grantee is considered a trustee ex maleficio for the benefit of
'See Guthrie. Gardner, 19 Wend. 414; Livingston v. Bateman, 2
Wend. 570; Ten Eyck v. Walker, 4 Wend. 462; Kellogg v. Wood, 4
Paige, 578; Brewster v. Power, 10 Paige, 562; Sternberg v. Shaffer, 11
Johns. 513; Bogert v. Perry, 17 Johns. 351; Wright v. Douglass, 3
Barb. 554; Garfield . Hatmaker, 15 N. Y. 475; Mallory v. Clark, 20
How. 418.
* Pennington v. Clifton, 11 Ind. 162; Hutchins v. Hanna, 8 Ind. 513;
Melton . Davidson, 6 Ired. Eq. 194; Burgin . Burgin, 1 Ired. 160;
Claytor. Anthony, 6 Rand. 285; Davenport v. Lacon, 17 Conn. 273;
Drake v. Brown, 68 Pa. St. 223; McMechen v. Marman, 8 Gill & J. 57;
Moore. McDuffy, 8 Hawks, 578; Garro v. Thompson, 7 Watts, 416;
Hopkins. Stump, 2 H. & J. 301; Harrison v. Kramer, 8 Iowa, 543;
Kiser . Sawyer, 4 Kans. 503; Bagley v. Bailey, 16 Me. 151; Eldridge
⚫. Smith, 84 Vt. 484.
Van Cleve v. Groves, 8 Green's Ch. 880; Gorham v. Wing, 10 Mich.
486.
• Dunnica v. Coy, 24 Mo. 167; Dewey v. Long, 25 Vt. 564; Low v.
Marco, 53 Me. 45; Thomas v. Walker, 6 Humph. 93.
'Maynard . Hoskins, 9 Mich. 485; Jimmerson v. Duncan, 8 Jones,
537; Gentry v. Harper, 2 Jones Eq. 177; Harrison v. Hollis, 2 N. &
McC. 578.
294
THE LAW OF ATTACHMENT.
*
•
Real Estate Trust Estates.
both existing and subsequent creditors, if both classes were in-
tended to be defrauded thereby, and they can reach it either
by a creditor's suit in equity or at law, by attachment, or exe-
cution.'
In New York state (except as to creditors) resulting trusts
are abrogated by statute. Section 51 of the Revised Statutes
applicable to uses and trusts provides that "where a grant for
a valuable consideration shall be made to one person, and the
consideration therefor shall be paid by another, no use or trust
shall result in favor of the person by whom such payment
shall be made; but the title shall vest in the person named as
the alienee in such conveyance, subject only to the provisions
of the next section." And the next section (52) provides that
"every such conveyance shall be presumed fraudulent as
against the creditors at that time, of the person paying the
consideration; and where a fraudulent intent is not disproved,
a trust shall result in favor of such creditors to the extent that
may be necessary to satisfy their just demands." This brings
the case, by statute, within the general rule.
§ 377. Beneficial and trust powers. A power is an author-
ity for the performance of some act in relation to lands, or for
the creation of estates therein, or of charges thereon, which
the owner, granting or reserving such power, might himself
lawfully perform. A power is beneficial when no person
other than the grantee has, by the terms of its creation, any
interest in its execution.' A power is special either where the
person or persons beneficially interested are designated, or
where it relates to an interest less than a fee. It is provided
'Hildreth v. Sands, 2 Johns. Ch. 85; Anderson. Roberts, 18 Johns.
515; Fowler ». Trebein, 16 Ohio St. 493; George v. Williamson, 26 Mo.
190; Montgomery . Hunt, 5 Cal. 866; Osborn . Tunis, 1 Dutcher,
(N. J.) 633; Lenox . Notrebe, 1 Hemp. 251; Ryland v. Callison, 54
Mo. 513; Staples v. Bradly, 23 Conn. 167; Getzler v. Saroni, 18 Ill. 511;
Gorham. Wing, 10 Mich. 486; Bridge . Eggleston, 14 Mass. 245;
Jones v. Crawford, 1 McMull. 873.
1 N. Y. R. S. 732, § 74.
• Id. § 79.
PROPERTY SUBJECT TO ATTACHMENT. 295
Real Estate Trust Estates.
in New York state that every power, which is both special and
beneficial, is liable in equity to the claims of creditors in the
same manner as other interests that cannot be reached by an
execution at law, and the execution of a power may be decreed
for the benefit of the creditors entitled thereto.' It is evident
from the terms of this provision that it was assumed that such
interest could not be made subject to legal process, and such
is the effect of the provision. We have seen that only alien-
able interests in real estate can be levied upon by attachment,
and such an interest cannot be transferred except for the bene-
fit of creditors, as hereinafter specified, and is not, therefore,
within the rule.*
A power is said to be "in trust" when any person other
than the grantee of the power is entitled to the beneficial in-
terest. Every trust-power, unless its execution or non-execu-
tion is made expressly to depend upon the will of the grantee,
is imperative, and imposes a duty on the grantee, enforcible
on the part of the beneficiary by proceedings in equity,* or in
behalf and for the benefit of the creditors or assignees of such
beneficiary, when his interest is assignable. Section 104 of
the New York statute applicable to powers provides that
66 every beneficial power, and the interest of every person enti-
tled to compel the execution of a trust-power, shall pass to the
assignees of the estate and effects of the person in whom such
power or interest is vested under any insolvent assignment."
As the entire estate in the case of a power in trust “remains"
in the grantor of the trust, it is evident that no assignable in-
terest passes to the beneficiary except in the single case above
provided by statute. As the provision permitting an attach-
ment to be levied upon any interest in real estate capable of
being assigned cannot refer to insolvent assignments, since no
¹ 1 N. Y. R. S. 782, § 78.
2 Id. § 79.
*N. Y. Rev. Stat. 734, §§ 94, 95.
• Id. § 96.
New York Dry Dock Company v. Stillman, 80 N. Y. 174; Ford
. Belmont, 7 Rob. 97.
296
THE LAW OF ATTACHMENT.
Real Estate-Marital Rights.
levy can be made upon property that has been legally trans-
ferred in insolvent proceedings, it is evident that powers,
either beneficial or in trust, do not create a leviable interest in
the object of the trust.
§ 378. Estates in expectancy.
Estates in expectancy, as
distinguished from estates in possession, include all those in-
terests where the right of possession is postponed to a future
period. They are either future estates or reversions. A re-
mainder is a future estate which is dependent on a precedent
estate. A reversion is the residue of an estate left in the
grantor or his heirs, or in the heirs of a testator, which cannot
be reduced to possession until the termination of a particular
estate granted or devised. Future estates are either vested or
contingent. They are vested when there is a person in being
who would have an immediate right of possession upon the
ceasing of the intermediate or precedent estate. They are
contingent while the person to whom or the event upon which
they are limited to take effect remains uncertain.
1
In this state, by express provision of the statute, "expect-
ant estates are descendible, devisable and alienable, in the same
manner as estates in possession." This gives the claimant an
attachable interest, as under the Code all interests in real estate
capable of sale may be attached. There can be no doubt
as to the rule that a vested future estate, though liable to be
defeated by the death of the party-claimant, before the tenant
for life,' or a reversionary interest in lands, though contingent
upon the happening of events which may never occur,* may be
11 N. Y. Rev. Stat. 723, § 18; Barnes v. Provoost, 4 John. 61; Hop-
kins v. Hopkins, 1 Hun, 852; Roome v. Phillips, 24 N. Y. 463; Bur-
rows. Stumm, 22 How. 169; Livingston v. Greene, 52 N. Y. 118;
Weed . Aldrich, 2 Hun, 531; Chapin v. Marvin, 12 Wend. 538; Moore
v. Lyons, 25 Wend. 119; 1 N. Y. Rev. Stat. 723, § 13; Fowler v. De-
pau, 26 Barb. 224; Wendell v. Crandall, 1 N. Y. 491; De Barante .
Gott, 6 Barb. 492.
* 1 Rev. Stat. 725, § 85.
Sheridan . House, 4 Keyes, 569, overruling Jackson v. Middleton,
52 Barb. 9.
• Woodgate v. Fleet, 44 N. Y. 1.
PROPERTY SUBJECT TO ATTACHMENT. 297
P
Real Estate-Marital Rights.
made the subject of levy under attachment or execution, but
that a contingent remainderman, who takes no estate in the
property but a mere possibility, has such an interest, goes
against the generally understood principles of law, though
seemingly allowed by the operation of the concurrent provis-
ions of the statute hereinbefore noted.
§ 379. Marital rights. A tenancy by curtesy, either initi-
ate or vested, may be made the subject of a levy against the
husband, except in those states where the common law disa-
bilities of married women have been removed by statute.'.
Where, as in New York state, under the enabling acts, the
husband during the life of the wife has no interest in her
lands or in the income thereof, but the right of tenancy by the
curtesy is preserved in the absence of a grant or devise by the
wife, his inchoate rights cannot be considered sufficient in law
to uphold a levy. But a leviable interest exists as soon as the
tenancy becomes vested by the death of the wife intestate.
An execution against the husband for his separate debt cannot,
therefore, be levied upon the real estate of the wife in this state
without showing that there is in equity a resulting trust in
favor of the husband, or that through a fraudulent transfer she is
merely in the eye of the law a trustee ex maleficio for the credi-
tors.' Such a transfer, whether from the husband to the wife,*
'Mattock v. Stearns, 9 Vt. 320; Bennett v. Child, 19 Wis. 362; De-
jarnette v. Allen, 5 Gratt. 499; Burd v. Dansdale, 2 Binn. 80; Roberts
. Whiting, 16 Mass. 186; Watson v. Watson, 13 Conn. 83; Mitchell v.
Sevier, 9 Humph. 146; Cheek . Waldrum, 25 Ala. 152; Litchfield v.
Cudworth, 15 Pick. 23; Steadman v. Palling, 3 Atk. 423; Schneider v.
Staihr, 20 Mo. 269; Pringle v. Allen, 1 Hill's Ch. 135; see also in New
York state before the adoption of the Married Women Acts, Wickes v.
Clarke, 8 Paige, 161; Schermerhorn v. Miller, 2 Cow. 439; Gillis v.
Brown, 5 Cow. 888.
* Schermerhorn v. Miller, 2 Cow. 439; Gillis v. Brown, 5 Cow. 889.
'Etten. Currier, 8 Keyes, 329; Kluender v. Lynch, 4 Keyes, 361;
Knapp . Smith, 27 N. Y. 277; Buckley . Wells, 83 N. Y. 518; Gago
. Dauchy, 34 N. Y. 293.
• Preston . Fryer, 88 Md. 221; Phelps. Morrison, 24 N. J. Eq.
195; Fowler v. Trebein, 16 Ohio St. 493.
298
THE LAW OF ATTACHMENT.
ACH
Real Estate-Tenants in Common.
or to his infant children,' or to any person selected by
the debtor for the purpose of holding the property for his
benefit in fraud of the right of his creditors, can be levied under
attachment and sold under execution as the property of the
debtor on the principle of resulting trusts, hereinbefore stated.*
§ 380: Dower rights. A mere contingent right of dower,
not being at common law either a legal or equitable interest in
lands, cannot be levied upon and made the subject of an in-
voluntary transfer by sheriff's sale in this country, except
where the statute provides to the contrary, until there has been
either an assignment of dower' or possession by the widow.*
In the latter case the right of possession held by the dowress
will pass to the purchaser at sheriff's sale, even though dower
has not been specifically assigned.*
§ 381. Tenants in common, heirs and devisees. As an at-
tachment affects only such landed interests as the debtor can
legally assign, it follows as a general rule that a levy, before
appraisement or partition, upon a specific portion of lands,
upon an attachment against one of several tenants in common
who hold the entire tract in commonalty, is void. The levy
should be made upon his interest in the lands held in com-
¹ Smith v. Hinson, 4 Heisk. 250.
Allen v. Berry, 50 Mo. 90; Bobb . Woodward, 50 Mo. 95; Dunn
a. Painter, 27 Pa. St. 148; Trask v. Green, 9 Mich. 858.
• Tompkins. Fonda, 4 Paige, 448; Ritchie v. Putnam, 13 Wend.
524; Blain v. Harrison, 11 Ill. 884; Waller v. Mardus, 29 Mo. 25; Gra-
ham . Moore, 5 Harring. 818; Torrey v. Minor, 1 S. & M. Ch. 489;
Pennington v. Yell, 6 Eng. 212.
• Thomas v. Sampson, 8 Pa. 69; Stokes . McAllister, 2 Mo. 163;
C. & A. Turnpike v. Jarret, 4 Ind. 215; Wooster v. Iron Co., 88 Conn.
256; Crocker v. Fox, 1 Root, 823.
• Pitts v. Hendrix, 6 Ga. 452.
• Webber v. Mallett, 16 Me. 88; Stainford v. Fullerton, 18 Me. 229;
Humphreys. Humphreys, 1 Yeates, 427; De Haas v. Bunn, 2 Pa. St.
835; Bartlett v. Harlow, 12 Mass. 848; Clarke v. Harker, 48 Geo. 596;
Butler. Roys, 25 Mich. 53.
PROPERTY SUBJECT TO ATTACHMENT. 299
*
Real Estate Effect of Levy.
mon, or upon some designated portion thereof.' The pur-
chaser at the sheriff's sale in such a case takes all the rights
formerly held by the debtor. The levy is sufficient evidence
of plaintiff's interest in the property to require co-tenants to
give him notice of proceedings in partition subsequently com-
menced by them, and failing to receive such notice, the pur-
chaser at the sheriff's sale may maintain partition on his own
behalf. "The lien created by an existing attachment," says
Chief Justice Shaw, "which, though a contingent interest, is
often a very important one, and extends to the whole value of
the estate, and though only a lien when the action is pending;
yet when judgment is rendered and execution levied, it relates
back, for many purposes, to the time of the attachment, and
especially so far as to defeat any mesne conveyances or incum-
brances." If, after the levy of attachment upon the undivided
interest of a co-tenant, the property is partitioned, the levy of
execution may be made upon the specific property apportioned
to the debtor; the lien of the attachment continuing in pari
passu upon his interest in commonalty and in severalty.'
Upon the death of a freeholder his lands pass by devise or
descent to heirs or devisees chargeable with his debts, which
are, ipso facto, liens thereon, enforcible by attachment, even
though the property has passed by transfer to third parties,* or
has been partitioned between such heirs or devisees.*
§ 382. Peculiarities of a levy upon realty. We have al-
ready noted the fact that the levy of an attachment upon real
estate creates a lien upon the interest of the debtor therein.
It may be noted here that this is its only effect. It creates no
Id. See also Varnum v. Abbot, 12 Mass. 474; Thompson v. Bar-
ber, 12 N. H. 563; Barnes' Appeal, 46 Pa. St. 850.
* Munroe v. Luke, 19 Pick. 89; McMechan . Griffing, 9 Pick. 587.
* Argyle v. Dwinel, 29 Me. 29; Crosby . Allyn, 5 Me. 453.
Douglass v. Massie, 16 Ohio, 271; Proctor v. Newhall, 17 Mass. 81;
Mayo . Stroud, 12 Rob. (La.) 105; Vansyckle v. Richardson, 18 Ill. 171;
Prescott v. Tarbell, 1 Mass. 204.
'Vanhouten. Reilly, 14 Miss. 440; Nowell . Bragdon, 14 Me.
820; Baker v. Webb, 1 Hayward, 43.
300
THE LAW OF ATTACHMENT.
Real Estate Effect of Levy.
interest in the property itself in favor of either the attaching
officer or of the plaintiff.' It is a conditional claim in the na-
ture of an anticipatory levy, and serves the office of simply
marking out a period when the execution shall take effect, pro-
vided the action shall proceed to judgment in favor of the
plaintiff. For this reason it creates no right to enter upon
the possession of the property, even for the purpose of im-
proving or preserving its value; neither does it permit the
officer or the plaintiff to gather, preserve or interfere with
growing crops, or to receive the rents and profits thereof. The
duties of the officer are ended when he files the proper proof
of levy. Whatever claim or interest thereafter existing, is in
favor of the plaintiff personally. Hence the attempted with-
drawal of the levy by the officer, after it has once been made
in proper form, does not affect the vested rights of the plain-
tiff, and is of no avail whatever. From these facts it is evi-
dent that the attaching creditor must stand or fall by the con-
dition of affairs as they existed on the date of the levy. If the
debtor, then, has no interest in the lands, either because he has
in good faith transferred the same to a third party, or because
his rights have not been sufficiently determined to give him an
alienable interest in the lands subsequently acquired by him,
nothing is affected by the levy. Of course this proposition
must be taken in the full terms of the statement. If there
has been a previous transfer, which was colorable or frandu-
lent as to creditors, then we have seen, the law implies a result-
ing trust in their favor. An attachment may be made on that
ground, and the subsequent impeachment of the transfer will
¹ Scott v. Manchester Print Works, 44 N. H. 507; Lyon v. Sandford,
5 Conn. 344.
'Scott v. Manchester Print Works, 44 N. H. 507; Saunders v. Co-
lumbus L. I. Co., 43 Miss. 583; Taylor v. Mixter, 11 Pick. 841.
* Drake on Attachments, § 240; Braley v. French, 28 Vt. 546.
• Crocker v. Pierce, 31 Me. 177; Reed v. Ownby, 44 Mo. 201; Cox
v. Milner, 23 Ill. 476; Savery v. Browning, 18 Iowa, 246; and see Haga-
man v. Jackson, 1 Wend. 502.
PROPERTY SUBJECT TO ATTACHMENT. 301
Real Estate Effect of Levy.
relate back so as to make an effectual levy as of the original
date.
Adverse possession does not impair the right of levy. As
a general rule, the attachment will charge the real interest of
the debtor without regard to the fact that a third party holds
the lands in question adversely under a claim of right.'
¹ Blanchard v. Taylor, 7 B. Monr. 649; Woodman v. Bodfish, 25 Me.
817; Kelly v. Morgan, 3 Yerg. 441; Jarrett v. Tomlinson, 3 W. & S. 114;
Frizzle. Veach, 1 Dana, 211; Tuttle v. Hills, 6 Wend. 213.
302
THE LAW OF ATTACHMENT,
Statutory Exemptions.
CHAPTER XX.
STATUTORY EXEMPTIONS.
SECTION 383. Origin of statutory exemptions. In the year
1351 the first orderly system of practice was adopted by the Brit-
ains. It consisted in substituting for the right of individual
attachments, without the aid of the courts previously existing
under the act of 1134, a judicial writ, issued by a magistrate,
and directing the attaching or distraining all the personal prop-
erty of a debtor. If that was insufficient, his real estate could
also be distrained and sold for the benefit of the creditor.'
While this process afforded ample security for creditors, it
was found to create great hardship on the debtor class. This
fact led to the adoption at that early date of certain limitations
upon the power of the writ by privileging from its exercise
such property of the debtor as was absolutely necessary for his
immediate use, such as wearing apparel, beds, and the ordinary
implements of husbandry. The right of exemption was after-
wards extended, in certain cases, to articles of amusement,
such as hawks used in hunting, and the horse and arms of a
gentleman.' This humane provision of the law has since be-
come a part of the system of practice in every civilized nation.
In this country the nature and extent of such exemptions are
matters of statutory regulation in each state. As the statutes
in the several states relating to the subject of exemptions are
given hereafter in full, it is only necessary in this division of
the work to state the general principles relating to each of the
class of cases protected by legislation from attachment or exe-
cution.
¹ See Herman on Executions, p. 7.
• Id.
PROPERTY SUBJECT TO ATTACHMENT. 303
Statutory Exemptions-Householders.
§ 384. Statutory exemptions usually apply to householders
and inhabitants. As is well stated by the Court of Appeals in
the case of Kneettle v. Newcomb,' "the Legislature meant in
the passage of these laws to confer this privilege of exemption
on each of those little primary communities called families.
It was designed as a protection for poor and desti-
tute families, and the forlorn and destitute condition of his
family, in the absence of husband and father, gave them a
peculiar claim to the benefit of the statute, so that the RAYO
not be stripped of all means of support and cast off as paunVERSITY of
on the community." These exemptions are, therefore, usuallyHIGAN
confined to resident families. In order to bring himself with-
in the terms of the statute, the debtor must, therefore, show
that he is a householder or the head of a family which is de-
pendent upon him for support, and that he is a resident or in-
habitant of the state in which the action was brought.' The
law only applies to inhabitants; but whether it is necessary to
show also that they are domiciled or permanent residents in
the state in which they claim a right of exemption, is a ques-
tion which has been differently decided in different states.
Thus, in New Hampshire, Vermont, Wisconsin and Ala-
bama," the courts hold that the exemption is not restricted to
permanent residents, unless the statute so expressly provides;
while in Indiana' and Tennessee' the courts hold that the pro-
• •

1 22 N. Y. 249.
* Succession of Norton, 18 La. An. 86; Gunn v. Gudehus, 15 B. Monr.
447; Pollard v. Thomasson, 5 Humph. 56; Sears v. Hanks, 14 Ohio S.
298; Boykin v. Edwards, 21 Ala. 201; Bonnell v. Dunn, 4 Dutch. 153;
Wolfenbarger v. Standifer, 8 Sueed, 659; Woodward v. Murray, 18
Johns. 400; Cox v. Stafford, 14 How. 519; Griffen v. Sutherland, 14
Barb. 456.
• McKenzie v. Murphy, 24 Ark. 155.
• Hill. Loomis, 6 N. H. 203.
Haskill. Andro, 4 Vt. 609.
Lowe. Stringham, 14 Wis. 222.
▾ Abercrombie ♥. Alderson, 9 Ala. 981.
• Finley .. Sly, 44 Ind. 266.
• Hawkins. Pearce, 11 Humph. 44.
304
THE LAW OF ATTACHMENT.
Statutory Exemptions-Householders.
visions of the statute are only intended for people who have
permanent homes in the state where the benefit is claimed.
§ 385. As to the meaning of the terms "householder" and
"head of family," it may be said that they are synonymous and
refer to a person who rents or owns a house or some portion
thereof, and occupies the same with other persons for whom
he provides as a family, and who "keeps house,” as the term
is used in contra-distinction from the term "boarding." The
family need not consist of husband and wife or parent and
child, for any one who rents a house which he occupies as his
home is a householder, although he has no wife or children,
and simply keeps servants and boarders.' A man living with
his daughter (his wife being dead), or with his mother, brother
or sister, is a householder, if they actually keep house as a
family. It is not necessary that at the exact period when the
exemption is claimed the head of the family should in fact be
occupying a house, provided they remain together as a family,
and are only temporarily without a home. As, for instance, a
person who is moving his family from one part of the state to
another,' or who is temporarily storing his household goods
with a view to return to housekeeping, still retains the pro-
tection of the statute. The exemption also applies where the
head of the family has absconded, and the rest are seeking a
temporary home in another household "To say that a family
while in the act of removal, and on the highway, may be de-
prived of their bed and their cow, on execution, because they
did not, for the time, inhabit a dwelling-house, would be a per-
¹ Hutchinson v. Chamberlin, 11 N. Y. Leg. Obs. 248; Bowman
Quackenboss, 3 Code R. 17.
[
Cox. Stafford, 14 How. 519; Graham v. Crockett, 18 Ind. 119;
Marsh . Lazenby, 41 Geo. 153; Wade v. Jones, 20 Mo. 75; Parsons .
Livingston, 11 Iowa, 104.
Davis v. Allen, 11 Ala. 164; Pool ». Reid, 15 Ala. 826; O'Donnell
⚫. Segar, 25 Mich. 867; Mark ». The State, 15 Ind. 98.
Code of Civil Procedure expressly covers this point.
♦ Griffin v. Sutherland, 14 Wend. 456; Norman v.
156; Carrington v. Herrin, 4 Bush (Ky.) 624.
The New York
See section 1890.
Bellman, 16 Ind.
PROPERTY SUBJECT TO ATTACHMENT. 305
Statutory Exemptions-Householders.
version of the statute. So long as they remain together as a
family, without being broken up and incorporated into other
families, the privilege remains.' But if the family breaks up
housekeeping with the intention of removing permanently to
another state, they can neither be considered householders nor
inhabitants, and they will lose the privilege of the law applicable
only to such persons."
§ 386. The head of the family. As to which particular
member of the family is the head, it may be said that it is, 1st, the
father, 2d, the mother, 3d, the son, or other person, on whom
rests the principal dependence of the family. In short, the
66
master in law of the family," who has the right of enforcing
obedience within the household, and who supervises and man-
ages affairs about the house, is the "head" of it. Where the
husband dies it falls on his widow.' It seems that the natural
head of the family continues to hold that position, though he
temporarily occupies a subordinate position in the family of
another, as where the widow resides at her father's house with
her children. So a widower, withont children, whose mother
keeps house for him,' or who temporarily lives alone, his chil-
dren being absent at school,' or where, on account of their
marriage, he boards in his own home, which he has rented fur-
nished to another party,' or a son who, after the father's death,
has assumed the obligation of caring for the rest of the fam-
ily,' is the "head of a family," within the meaning of the
¹ Woodward v. Murray, 18 Johns. 400; Bonnell v. Dunn, 5 Dutch.
435.
'Anthony v. Wade, 1 Bush, 110.
* Whalen v. Cadman, 11 Iowa, 226; Wade v. Jones, 40 Mo. 75.
• Becker . Becker, 47 Barb. 497; Floyd v. Mosier, 1 Iowa, 512.
* Bachman v. Crawford, 3 Humph. (Tenn.) 213.
• Parsons. Livingston, 11 Iowa, 104.
'Cox . Stafford, 14 How. 519; Sears v. Hanks, 14 Ohio St. 298;
Robinson's Case, 8 Abb. 466; Sexton v. Marshall, 6 Bush, 429.
Myers o. Ford, 22 Wis. 139.
*Bowne . Witt, 19 Wend. 475; Sexton . Marshall, 6 Bush (Ky.)
•
20
306
THE LAW OF ATTACHMENT.
Statutory Exemptions-Householders.
exemption laws. The natural head of a family does not lose
his character as a householder by ceasing to live in the same
house as the other members of his family, provided he contin-
ues to assume the rights and obligations peculiar to that posi-
tion.' Where the marital relations are terminated by divorce,
the relationship attaches to the person who has, by order of the
court, taken charge of the children.*
But an adult, who resides with his stepmother and trans-
acts her business for her, is neither a householder nor a mem-
ber of the family, within the meaning of the exemption laws."
Neither is a widow who has no children to support, nor a wife
who only has charge of the children of a former husband,* nor is
a bachelor living with his brothers and sisters who keep house
with his means,' or who has no family but hired servants,' the
"head of a family."
$387. Special provisions relating to certain classes of debtors
and causes of action. The provision in favor of householders
is not exclusive in all the states. Thus, at common law, every
debtor was entitled to the exemption of wearing apparel, and
this rule is now applicable in most of the original commou
law states. In New York the New Code, as first adopted, ex-
tended the right to all married women, and it was subsequently
amended to include all women; a most wise provision, that
should be adopted in other states. In several of the states
there is no exemption except in actions on contract,' and in
429; McMurray . Shuck, Id. 111; Graham v. Crockett, 18 Ind. 119;
Crane v. Waggoner, 83 Ind. 83; Connaughton v. Sands, 82 Wis. 387.
¹ Sallee v. Wacker, 17 Ala. 482; Robinson's Case, 8 Abb. 460. This
rule applies, although he has left the state. Woodward v. Murray, 18
Johns. 400.
* Bonnell v. Smith, 53 Ill. 877.
* Bowne ". Witt, 19 Wend. 475.
• Kidd v. Lester, 46 Ga. 231.
Lathrop . Soldier, etc., 45 Ga. 483.
• Whalen v. Cadman, 11 Iowa, 226.
' Calhoun, McLendon, 42 Ga, 405.
• Bumpus ». Maynard, 38 Barb. 626.
• Commonwealth v. Dougherty, 8 Phil. (Pa.) 866; Lane v. Baker, 2
PROPERTY SUBJECT TO ATTACHMENT. 307
Statutory Exemptions-Purchase Money.
Pennsylvania, in those actions, bachelors are also entitled to
the privilege.' In Texas the law applies to every resident
whether married or single.' In New York the exemption law
does not apply in actions to recover wages as household ser-
vants; and in Kansas this provision is extended so as to include
also the wages of mechanics, laborers and clerks.'
§ 388. Actions for the purchase-money. It is a universal
rule that all property must pay its own debts, from whence
follows the principle that no article is exempt in an action to
recover the purchase-price agreed to be paid therefor. But
this rule is confined to an action on the contract of sale brought
by the original vendor, his legal representatives or assignsl
against the original purchaser. It does not, therefore, apply
to the exempt property of a surety in an action against him
upon the contract of purchase of other exempt property, the
payment of which he had guaranteed. Nor can the surety,
after payment to the vendor, become so subrogated to his
rights as to secure the right of levy upon the exempt property
in an action over against his principal. Nor can property be
levied upon in an action that includes a claim other than that
arising upon the purchase-price thereof.' In New York the
courts hold that property exempt under the act of 1812
Grant's Cases, 424; Kenyon v. Gould, 61 Pa. St. 292; Robinson v. Wiley,
15 N. Y. 489; Davis v. Henson, 29 Geo. 845.
¹ Dieffenbarger v. Fisher, 3 Grant's Cases, 830.
* Cobbs . Coleman, 14 Tex. 594.
* Reed o. Umbarger, 11 Kans. 200.
* Barnes . Anderson, 4 N. Y. Leg. Obs. 346; McHendry . Reilly, 13
Cal. 75; Austin v. Underwood, 37 Ill. 438; Perrin . Serjeant, 83 Vt.
184; Cummings v. Long, 16 Iowa, 41; McCreevy v. Fortion, 85 Texas,
681; Ulrich's Appeal, 48 Pa. 489; Buckingham v. Nelson, 42 Miss. 417;
New England, etc. v. Merriam, 2 Allen (Mass.) 300; Succession of
Foulks, 12 La. 537; McGhee v. Way, 40 Ga. 282; Pratt v. Topeka Bank,
12 Kans. 570.
• Davis. Peabody, 10 Barb. 91; see also Griffith v. Treutlen, 48
Ga. 148, and Smith v. Slade, 57 Barb. 637.
• Harley .. Davis, 16 Minn. 487.
* Hickox v. Fay, 86 Barb. 9; Code of Civil Procedure, § 1351.
308
THE LAW OF ATTACHMENT.
Statutory Exemptions-Waiver.
(which with amendments forms section 1391 of the new Code)
could be levied upon in an action brought to recover the pur-
chase-money of other exempt property bought by the defend-
ant. While property exempt under the provisions of the Re-
vised Statutes (which now forms section 1390 of the New Code)
could only be made the subject of attachment or levy in an
action to recover the purchase-money of that particular prop-
erty levied upon. The latter rule is the one that will apply
whenever the statute does not provide to the contrary.
2
§ 389. What constitutes a waiver of right of exemption.
As the debtor has the power to sell his excmpt property and
apply the proceeds to the payment of debts directly, he can,
of course, permit the same thing to be done indirectly by
allowing the creditor to levy npon and sell the same for that
purpose. The right of exemption is a statutory one for the
sole benefit of the debtor, and may, like other statutory privi-
leges, be waived by him.' But it cannot be waived by proxy
without his authority. The right of exemption being per-
sonal, third parties can neither claim nor forfeit it. Thus, an
officer sued for false return cannot justify on the ground that
the debtor's property was exempt by statute. Non constat
but that the exemption would be waived by him. The
debtor may waive his rights by express words to that effect, or
by knowingly permitting the property to be taken without ob-
'Mathewson. Weller, 8 Den. 52; Craft v. Curtiss, 25 How. 163;
Snyder . Davis, 1 Hun. 850. Hickox v. Fay (36 Barb. 9) holding the
contrary doctrine, was overruled by Snyder v. Davis; and the codi-
fiers amended the language of the act so as to bring the provision of
section 1891 plainly within the rule above stated.
* Cole v. Stevens, 9 Barb. 676; Davis v. Peabody, 10 Barb. 91; Cox
v. Stafford, 14 How. 519.
* Smith . Hill, 22 Barb. 656; Mickles v. Tousley, 1 Cow. 114; Earl
❤. Camp, 16 Wend. 562; Case v. Dunmore, 23 Pa. 93; Beegle v. Heutz,
55 Pa. 369; Line's Appeal, 2 Grant's Cases, 197.
• Woodward v. Murray, 18 Johns. 400; 'Wygant v. Smith, 2 Lans.
* Baker v. Brintnall, 52 Barb. 188; Earl v. Camp, 16 Wend. 562.
185.
PROPERTY SUBJECT TO ATTACHMENT. 309
Statutory Exemptions—Waiver.
jection or protest.' If he chooses to exercise his privileges, be
must take some affirmative act denoting such intention.
Where all the property attached is exempt, a statement to the
officer that he claims the same under the statute is sufficient,
as the law does not usually require any precise character of
demand.' But where only a portion of the property attached
could be included within the exemption laws, the debtor is
required to select therefrom the privileged articles and surren-
der the balance. This right of selection, in case of a levy
covering the two classes of goods, or of demand and protest in
case exempt property only is attached, must be exercised with-
in a reasonable time. Usually it is sufficient, if exercised be-
fore judgment or sale.' It is too late to make it after sale.' In
Pennsylvania the debtor is deemed to have waived his rights
without he makes his claim upon the exempt property before
the inquisition, appraisement, or advertisement for sale, unless
'The law does not seem to be very well settled on this point. In
some states exemption is a mere optional privilege, which is waived by
not claiming it. (See Dains t. Prosser, 32 Barb. 291; Twinam v.
Swart, 4 Lans. 263; Tullis v. Orthwein, 5 Minn. 377; Howland v.
Fuller, 8 Id. 50; Gresham v. Walker, 10 Ala. 870; Henson v. Edwards,
10 Ired. 43; Borland v. O'Neal, 22 Cal. 504.) While in several other
etates the statute does not simply create a right, but acts as an injunc-
tion, which not even the consent of the debtor will nullify. (See Perry
v. Lewis, 49 Miss. 443; Denny v. White, 2 Cold. 283; Ross v. Lister, 14
Tex. 469.) While in still another list of states a middle ground is taken.
It permits waiver by parol, but usually requires some affirmative evi-
dence of the debtor's consent that the exempt property may be taken by
the sheriff. (See State v. Romer, 44 Mo. 99; People v. Palmer, 46 Ill.
398; Frost v. Shaw, 3 Ohio St. 270; Gilman v. Williams, 7 Wis. 329.)
* Freeman on Executions, § 212;· Diehl v. Holben, 39 Pa. St. 213;
McClusky . McNeely, 3 Gilm. 578; Keller v. Bricker, 64 Pa. St. 879;
Gamble . Reynolds, 42 Ala. 236.
* Bonnell . Bowman, 53 Ill. 460; Ringham v. Maxey, 13 Ill. 290;
Smothers. Holly, 47 Ill. 331; Finnin v. Malloy, 1 Jones & Spencer,
382; Lockwood v. Younglove, 27 Barb. 505; Elliott v. Flanigan, 37 Pa.
St. 425.
• Pyett v. Rhea, 6 Heisk. 136.
'Perkins v. Bragg, 29 Ind. 507; Pate v. Swann, 7 Blackf. 500.
• Bray v. Laird, 44 Ala. 295; McGee v. Anderson, 1 B. Monr. 189.
310
THE LAW OF ATTACHMENT.
1
Statutory Exemptions-Waiver.
good canse is shown for the delay,' such as sickness in the fam-
ily, or the absence of the debtor, or any other circumstances,
showing ignorance of the levy on the part of the owner.'
§ 390. Can the right of exemption be lawfully waived in
advance. In New York state the courts hold that a prospect-
ive waiver of the exemption law is void as against public pol-
icy.' The reason for this rule, stated by the Court of Appeals,
is that, if effect should be given to such agreements, the policy
of the law would be entirely overthrown: "Every honest man
who contracts a debt expects to pay for it, and believes he will
be able to do so without having his property sold on execution.
No one worthy to be trusted would, therefore, object to a
clause subjecting all his property to levy on exccution in case
of non-payment. It was against the consequences of this over-
confidence, and the readiness of men to make contracts which
may deprive them and their families of articles indispensable
to their comfort, that the Legislature has undertaken to inter-
pose. When a man's last cow is taken in an action on a note
containing a waiver of exemption laws, it is no answer to say
that it was done pursuant to his consent, freely given when he
contracted the debt. The law was designed to protect him
against his own imprudence in giving such consent." The
reason given for withholding the power to waive the statute as
to future contracts, and granting its exercise at the time the
levy is made, is thus given in the same case: "In thus dis-
criminating, the law takes notice of the readiness with which
sanguine and incautious men will make improvident contracts
which look to the future for their consummation, when, if the
State v. Manley, 15 Ind. 8; Slaughter . Detiney, 15 Ind. 49.
'Miller's Appeal, 16 Pa. St. 300; Commonwealth v. Boyd, 56 Pa. St.
402; Bain v. Steinman, 52 Pa. St. 423; Kensel v. Kern, 4 Phila. 86;
Pittman's Appeal, 48 Pa. St. 313; Rogers v. Waterman, 25 Pa. St. 182.
The same rule has been applied in New York. (See Twinam v. Swart,
4 Lans. 263.)
* Kneettle v. Newcomb, 22 N. Y. 249, affirming 31 Barb. 169; Harper
v. Leal, 10 How. 276; see also Crawford v. Lockwood, 9 How. 547, and
Dow . Cheney, 103 Mass. 181.
PROPERTY SUBJECT TO ATTACHMENT. 311
Statutory Exemptions-Construction of Terms.
results were to be presently realized, they would not enter
into them at all. If, with the consequences immediately be-
fore them, they will do the act, they will not generally be
allowed to retract, it being supposed in such cases that valid
reasons for the transaction may have existed, and that, at all
events, the party was not under the illusion which distance of
time creates.”
This rule is followed in several of the states,' but it is not
universal. Judgment notes, containing a waiver of exemp
tion laws, are common in many localities, and are sometimes
upheld.'
§ 391. What property is included within the terms employed
in exemption laws.-Liberal construction. In ascertaining what
property may be considered exempt, it must be borne in mind
that the law, being highly remedial, and based on just views of
human generosity, receives at the hands of the court a liberal
application in cases of unquestioned indigence.' This rule is
questioned in Minnesota and Louisiana on the ground that it
tends often to put a premium on colorable acts by aiding in the
consummation of the fraudulent schemes of debtors, desiring
to shield their property from creditors. The further ground
is also urged that statutes of exemption are in derogation of the
common law, and therefore within the rule requiring a strict
construction. We have already seen that this indulgent pro-
¹ Maxwell . Reed, 7 Wis. 582; Curtis ». O'Brien, 20 Iowa, 876;
Moxley v. Ragan, 10 Bush (Ky.) 156; Levicks. Walker, 9 Am. L. Reg.
112.
* Case v. Dunmore, 23 Pa. St. 93; Shelly's Appeal, 86 Pa. St. 873;
Bowman v. Smiley, 81 Pa. St. 223.
* 2 Wait's Practice, 159; Shaw v. Davis, 55 Barb. 389; Ford ». John-
son, 31 Barb. 364; Carpenter v. Herrington, 25 Wend. 370; Stewart o.
Brown, 37 N. Y. 330; Tillotson v. Wolcott, 48 N. Y. 188; Rogers v. Fer-
guson, 32 Texas, 534; Hawthorne v. Smith, 8 Nev. 182; Alvord v.
Lent, 23 Mich. 869; Kuntz o. Kinney, 33 Wis. 510; Webster v. Orne, 45
Vt. 40; Vogler v. Montgomery, 54 Mo. 577; Allman v. Gann, 29 Ala.
240; Montague . Richardson, 24 Conn. 846; Good v. Fogg, 61 Ill. 449;
Kenyon v. Baker, 16 Mich. 373; Wassell v. Tunnah, 25 Ark. 101.
• See Freeman on Executions, § 208; Crilly. Sheriff, 25 La. An.
312
THE LAW OF ATTACHMENT.
Statutory Exemptions-Team.
tection emanated and has always existed in the common law.
The present American system is, in fact, only an extended ap-
plication of the wise but incomplete provisions inherited under
the common law, and cannot in any true sense be said to be in
derogation thereof.
§ 392. Team. A single horse used for drawing loads is a
team" within the meaning of the statute of exemptions; and
the harness and vehicle to which it is ordinarily attached for
business purposes is also exempt.' The debtor's interest in a
team is exempt from attachment, although he is only a part
owner therein.' The right of exemption is not lost through
the temporary non-user of the horse and carriage, if it is, in
fact, retained for use when occasion requires. In order to in-
sure the exemption of a carriage or harness, the debtor must
show that it is, in fact, a part of his "team;" they are not ex-
empt per se. Where a defendant has three horses, any two of
which may constitute a team, a constable who levies upon one
of them cannot be made a trespasser, unless he make his elec-
tion to claim the horse levied upon as exempt at the time of
the levy, or within a reasonable time after he has notice of it.
Webster defines a team as "two or more horses, oxen, or other
beasts harnessed together to the same vehicle for drawing;" but
the courts have limited the term to two or less of such beasts.
<<
219; Guillory v. Deville, 21 La. Ann. 686; Temple v. Scott, 3 Minn.
419; Ward v. Huhn, 16 Minn. 159. And, as recognizing this principle,
see Rue . Alter, 5 Denio, 119.
'Finnin ". Malloy, 1 J. & Sp. 382; Wilcox . Hawley, 81 N. Y. 648;
Hutchinson. Chamberlin, 11 N. Y. Leg. Obs. 248; Smith v. Slade,
57 Barb. 637; Hoyt v. Van Alstyne, 15 Ibid. 568; Lockwood . Young-
love, 27 Ibid. 505; Harthouse v. Rikers, 1 Duer, 608.
'Radcliff. Wood, 25 Barb. 52.
Cogsdill v. Brown, 5 Hun, 341.
* Brown v. Davis, 9 Hun, 43. The exemption of the horse includes
not only the harness and wagon when used for draught purposes, but
also the saddle, bridle, and other equipments, when necessarily used for
riding purposes., Dains v. Prosser, 82 Barb. 290; Harthouse . Rikers, 1
Duer, 606; Cobbs v. Coleman, 14 Tex. 594.
PROPERTY SUBJECT TO ATTACHMENT. 313
Statutory Exemptions-Team.
We have seen that a single horse is exempt when used as a
team, and the same rule applies to a single ox when broken to
harness and used for the ordinary purposes to which a horse or
yoke of oxen is used.' But the property to be exempt must
be capable of being used together as a team, for although two
calves, less than a year old, have been held to be a "yoke of
steers," yet the exemption of a brood-mare used for draught
purposes will not include her four-months'-old colt.'
66
In New York the term "team" is used as follows:
Necessary household furniture, working tools, and teum.”
It is evident, from the use of the term "necessary," and its
connection with the term "working tools," that a team is only
included where it is used by the debtor as a means of liveli-
hood. This practically limits its application to agriculturists,
teamsters, and merchants or manufacturers, whose business re-.
quires the use of a team. When applied to "teamsters" by
statute, it is confined to persons who are engaged with their
own team or teams in the business of hauling freight for other
parties for a consideration, and as a means of support.*
In several of the states the construction of the courts are
extremely liberal, and cover for the benefit of a householder
any team which may or can be used in and about the business
of providing for the family, the exemption being for their
benefit as well as for the owner of the property. The nature
of a person's occupation has some influence on the question as
to what is a necessary team; thus, while two horses driven in
span by the farmer or teamster form a single team within the
statute, a physician who only drives a horse to single wagon
cannot claim two horses as exempt. When it appears that a
'Bowzey v. Newbegin, 48 Me. 410; Wolfenbarger v. Standifer, S
Sneed, 659.
* Mundell ». Hammond, 40 Vt. 641.
Ames . Martin, 6 Wis. 361.
• Wilcox v. Hawley, 31 N. Y. 648; Brussie v. Griffith, 34 Cal. 303.
• Wilcox . Hawley, 81 N. Y. 648; Denny . White, 2 Cold. 283;
Maxwell . Reed, 7 Wis. 582.
• Corp v. Griswold, 27 Iowa, 879; Wheeler o. Cropsey, 5 How. 288;
Van Buren . Loper, 29 Barb. 888; Eastman v. Caswell, 8 How. 75.
314
THE LAW OF ATTACHMENT.
Statutory Exemptions-Working Tools.
team is actually necessary to the performance of the debtor's
business, it is within the statute, notwithstanding the fact that
he has a large quantity of leviable property, and may, in fact,
be able to live without the aid of the team.' Where the term
used by the statute is "a horse and wagon," the courts hold
that an ordinary work horse is intended to be covered; hence,
while a stallion, if used for business purposes, is exempt,
although a portion of his time is applied to other uses, yet the
statute will not apply if he is kept only for the service of
mares;" and it seems that all that is necessary to extend the
exemption to a work horse is that he performs the common
drudgery of the homestead, he need not be broken to gear or
used in harness. The term "wagon" is construed so as to
cover all vehicles for the transportation of goods, wares, and
merchandise.*
§ 393. Working tools. There are two separate provisions
in the exemption laws of New York state relating to working
tools. The first is contained in section 1390 of the New Code,
subdivision 6, and reads as follows: "The tools and imple-
ments of a mechanic, necessary to carry on his trade, not ex-
ceeding in value twenty-five dollars." The other (which is
found in the next section) is more general in its terms, and is
expressed to be in “addition" to the provisions of the preced-
ing section. The clause reads: "Necessary household furni-
ture, working tools and team, professional instruments, furni-
ture and library; not exceeding in value two hundred and
fifty dollars." It will be seen that by the express terms of the
statute these provisions are cumulative; but in several of the
states the courts have held that such would be the effect in
¹ Smith . Slade, 57 Barb. 637.
⚫ Allman v. Gann, 29 Ala. 240.
* Robert v. Adams, 88 Cal. 883.
• Noland ⚫. Wickham, 9 Ala. 169.
Favers v. Glass, 22 Ala. 621; Quigley v. Gorham, 5 Cal. 418; Van
Buren . Loper, 29 Barb. 888; Farner v.'Turner, 1 Clark (Iowa) 58;
Webb ⚫. Brandon, 4 Heisk. (Tenn.) 285; Nichols v. Claiborne, 39 Tex.
368; Rogers v. Ferguson, 82 Tex. 533.
PROPERTY SUBJECT TO ATTACHMENT. 315
!
Statutory Exemptions-Working Tools.
any event where one person would come under both provis-
ions,' although this rule has been disputed in other locali-
ties."
Where the debtor seeks the exemption of his working
tools as a mechanic, the courts hold that the right is limited to
the tools used by him personally, and not those used by his
workmen. But where the master and his apprentice work
together, it seems that the tools used by both may be protected
by the former from the levy of an attachment. The rule that
confines the right of exemption to the mechanic's personal
use of tools is extended so as to require him to show the neces-
sary application thereof to his own trade. If he exercises two
trades as a means of living, he may elect under which to claim
the exemption; he cannot usually claim under both. In regard
to the character of the articles that may come within the term
"working tools," the best general rule is that specified in the
case of Wilkinson v. Alley,' that it "is presumed to embrace
snch implements of husbandry or of manual labor as are
usually employed in, and are appropriate to, the business of the
several trades or classes of the laboring community, and accord-
ing to the wants of their respective employments or profes-
sions." It will be seen that this rule limits the application of
the statute to persons whose business requires the performance
of manual labor as distinguished from brain-work, as exem-
1 ¹ Springer v. Lewis, 22 Pa. St. 191; Harrison v. Martin, 7 Mo. 286;
Kenyon v. Baker, 16 Mich. 373.
¹ In re Hezekiah, 2 Dill. 551.
* Smith v. Gibbs, 6 Gray (Mass.), 298; Prather v. Bobo, 15 La. An.
524; Abercrombie v. Alderson, 9 Ala. 981; Atwood. De Forest, 19 Conn
513; Richie . McCauley, 4 Pa. St. 472; Seeley v. Gwillim, 40 Conn. 106.
• Howard v. Williams, 2 Pick. 83
* Grimes .. Bryne, 2 Minn. 104.
Lockwood . Younglove, 27 Barb. 505; Bevitt v. Crandall, 19 Wis.
581; Harrison v. Martin, 7 Mo. 286; Springer v. Lewis, 22 Pa. St. 191.
This rule is not held so strictly in Massachusetts as to prevent the pro-
tection of the tools of a lesser occupation from exemption, because the
debtor also claims those used in his principal business. See Pierce v.
Gray, 7 Gray, 67; Eager . Taylor, 9 Allen, 156.
145 N. H. 551.
316
THE LAW OF ATTACHMENT.
Statutory Exemptions-Working Tools.
•
plified by the mercantile business, liberal arts, and learned
professions. This is the adopted theory. It excludes the
library of a lawyer,' the wagon of a merchant,' and the instru-
ments of the physician. It is also held in Mississippi to ex-
clude the tools of a dentist on the ground that, thongh his
labor was manual in a certain strict sense, it required a correct
knowledge of the anatomy and physiology of a part of the
human body as well as mechanical skill, and was therefore to
be classed among the learned professions, and as not within the
spirit of the law.' But in Michigan the courts hold the in-
struments of a dentist to be "mechanical tools" on the ground
that, although he is in one sense a professional man, "his call-
ing is mainly mechanical, and the tools which he employs are
used in mechanical operations." But in New York the rule
is more flexible; working tools, as used in section 1391, being
held to include the ordinary implements used by any person in
securing a livelihood. It is, therefore, held to include the
medical books and surgical instruments of a practicing physi-
cian. And the same reasoning would cover the library re-
quired for the use of any professional man, the paints, pallets,
brushes, etc., of an artist, and it has been held, in an unre-
ported case, to cover, as "tools of her profession," the neces
sary furniture for the use of the guests of a boarding-house.
A distinction has been drawn in some of the states between
those instruments that are required to be used solely by the
hand and, those which are not, the former only being desig-
nated as "tools" within the statute. Thus, in the case of
agriculturists, those implements worked entirely by manual
1 Lenoir o. Weeks, 20 Geo. 596.
• Wilson. Elliott, 7 Gray, 69; Gibson v. Gibbs, 9 Gray, 62.
• Whitcomb v. Reid, 81 Miss. 567.
◄ Maxon ♥. Perrott, 17 Mich. 832.
'Robinson's Case, 8 Abb. 466. Musical instruments of a profes-
sional musician are exempt within this rule. The library of a profes-
sional man is as useful in his calling as is the team to a teamster, the
farming implements to the farmer, or the working tools of his craft to
the carpenter or mason. See Robinson's Case, supra; Fowler ». Gil-
more, 80 Tex. 482.
PROPERTY SUBJECT TO ATTACHMENT. 317
金
​Statutory Exemptions-Working Tools.
labor, such as hoes, shovels, axes, etc., are deemed "tools,"
while those requiring the use of outside motive-power, such as
plows, harrows, mowers and reapers, hauled by teams, or ma-
chinery run by steam or water power, do not come within that
class, and are not exempt.' This is so far applicable in other
states as to create the general principle that machinery cannot
be exempt as tools. The statute is not, however, limited to
such as can be carried in the hand. It has been held to cover
bulky articles, and even such machinery as can be operated
without outside motive-power. A weaver's loom,' the chair
and foot-rest of a barber, a net and boat owned by a fisher-
inan, though requiring two men to operate it, and a printing-
press, together with the type and implements of a printing-
office. A watch, when used ordinarily, is not exempt,' but if
it is actually required in the employment of the debtor, it be-
comes a "working tool," and if hung up in the house and used
in the place of a clock, it will become exempt, as necessary
household furniture."
"
In New York state the courts hold that it is in the province
of the jury to determine as a question of fact whether specific
articles in a particular case are working tools. While they may
be aided in this respect by evidence of custom, it seems that
the opinion of witnesses on this point are inadmissible."
¹ Garrett v. Patchin, 29 Vt. 248.
Ford. Johnson, 84 Barb. 864; Batchelder . Shapleigh, 10 Me.
135; Atwood v. De Forest, 19 Conn. 518; Meyer v. Meyer, 28 Iowa, 859.
* McDowell v. Shotwell, 2 Whart. 26.
* Allen v. Thompson, 45 Vt. 472.
* Sammis v. Smith, 1 Supreme Ct. Rep. (N. Y.) 444.
•Prather v. Bobo, 15 La. An. 524; Patten v. Smith, 4 Conn. 450;
Sallce v. Waters, 17 Ala. 482; sed contra, Danforth . Woodward, 10
Pick. 423.
' Rothschild. Boelter, 18 Minn. 361.
• Bitting . Vandenburgh, 17 How. 80.
• Willson v. Ellis, 1 Den. 402; Bitting ♥. Vandenburgh, 17 How. 80;
Leavitt ». Metcalf, 2 Vt. 842.
10 Whitemarsh. Angle, 8 Code Rep. 53; Sammis v. Smith, 1 8. C.
444.
818
THE LAW OF ATTACHMENT.
Statutory Exemptions-Household Furniture.
§ 394. Household furniture. Section 1390 of the New
York Code of Civil Procedure exempts among other things
"all wearing apparel, beds, bedsteads, and bedding necessary
for the judgment-debtor and the family, all necessary cooking
utensils, one table, six chairs, six knives, six forks, six spoons,
six plates, six tea-cups, six saucers, one sugar-dish, one milk-
pot, one tea-pot, one crane and its appendages, one pair of and-
irons, one coal-scuttle, one shovel, one pair of tongs, one lamp
and one candlestick." Section 1391 then goes further, and
states, “in addition" to those exemptions, “necessary household
furniture, working tools and team, professional instruments,
furniture and library, not exceeding in value two hundred and
fifty dollars, are exempt from levy and sale." It is evident that
a person having the household furniture specified in section
1390, and also a team or other property specified in section
1391, need not apply the $250 limit to the necessary house-
hold furniture, but may hold that, or so much of it as is speci-
fied in the former section by virtue of that section, and then
also hold $250 worth of the property specified in the latter
section. The necessary result of this proposition is that a
debtor having no exempt property, except household furni-
ture, is not confined to the $250 limit, but may select from
the most costly articles the furniture, etc., exempt, under the
first provision, and then, in addition thereto, hold as exempt
$250 worth more, provided he can show that the same is
necessary. There is no doubt but that the term "necessary"
should be construed, to a certain extent, under a proper observ-
ance of the condition in life of the debtor. What may rightly
be considered necessary to some families would not be thought
of as required by others who occupy a very different station in
life. While the term "necessary," as used in exemption laws,
1 Subdivision 4 of § 1390.
'It follows as a necessary corollary to this proposition that, in order
to claim the specific articles designated in section 1890, it is not neces-
sary to show that the debtor had not other property exceeding $250 in
value. See Smith v. Slade, 57 Barb. 637; Reinecke v. Flecke, 8 J. & Sp.
491; Wilcox v. Hawley, 81 N. Y. 648.
PROPERTY SUBJECT TO ATTACHMENT.
$19
Statutory Exemptions-Household Furniture.
cannot be made so elastic as to cover articles of luxury, it is
not limited to those articles which are indispensable to the
bare subsistence of the debtor and his family, but will embrace
everything which is requisite to a comfortable and convenient
manner of living. This term is always given a liberal con:
struction, and, as applied to furniture, it is held to cover all
those articles requisite to enable the household to live conven-
iently and decently, according to the custom of the country
in which they live.'
It covers all those things which universal usage, and the
common understanding of the term in reference to this sub-
ject, have pronounced to be necessary articles of household
furniture. It is not restricted to such furniture as is in con-
stant use, or required for the use of the debtor himself. Rea-
sonable provision may be made, according to circumstances,
for wife and children, for domestics, for dependent relatives,
who may be residing with and constitute a part of the family,
and for visitors. The question is not affected by the fact of
the temporary disuse of some portion thereof.*
It seems that boarders cannot properly be considered part
of the debtor's family, and it has been held that the furniture
used by them as distinct from that reserved by the debtor for
his own household and their guests, is not within the statute."
Among the specific articles held by the court not to come
within the term of necessary household furniture may be in-
cluded a piano or other musical instrument, on the ground
that it is not a necessary article for the use of the family. The
term "household furniture" should be applied only to "those
vessels, utensils, or goods, which, not becoming fixtures, are
designed in their manufacture originally and chiefly for use in
¹ Herman on Execution, p. 114; Davlin ♥. Stone, 4 Cush. 359.
* Freeman on Executions, § 231.
8 Montague .. Richardson, 24 Conn. 338.
• Weed . Dayton, 40 Conn. 296; Deckerman . Van Tyne, 4 Sandf.
724; Haswell v. Parsons, 15 Cal. 200; Heath v. Keyes, 35 Wis. 668.
Weed . Dayton, 40 Conn. 296.
• Dunlap .. Edgerton, 30 Vt. 224; Tanner o. Billings, 18 Wis. 163.
$20
THE LAW OF ATTACHMENT.
Statutory Exemptions-Household Furniture.
the family, as instruments of the household, and for conducting
and managing household affairs.””¹
§ 395. Wearing apparel Section 1390 exempts "all wear-
ing apparel... necessary for the judgment-debtor and the
family." This, as we have seen, is the only common law ex-
emption; it applies at common law to every debtor, and is
not considered a household exemption, but was limited to a
single suit of clothing used by the debtor personally.' It
seems that the exemption of the debtor's wearing apparel does
not go to the extent of protecting the trunks, satchels or car-
pet-bags in which it may be placed; neither are jewelry,
watches, rings, or other articles of adornment worn in the
dress, exempt from attachment as wearing apparel; and if the
officer is unable to make a levy on them on account of being
worn by the debtor, they will pass to a receiver appointed by
the court for that purpose. In regard to the extent of this
exemption, it may be said that in lieu of the common law re-
striction to the clothing actually worn by the debtor at the
time of the levy, the statutes of each state now protect all of
the wearing apparel requisite for the use of the debtor and his
family,* to enable them to meet the varying climate and con-
form to the customary habits and ordinary necessities of the
mass of the people. While the clothing worn by the debtor
during his daily toil might be all that was necessary for the
time, it would be wholly insufficient when the labor ceased,
and the working-day clothes of a laborer might not be such as
the common sentiment of the community would deem neces-
sary for use on the days set apart for public worship and for
' Towns v. Pratt, 83 N. H. 845.
Bowne . Witt, 19 Wendell, 475; Bumpus . Maynard, 88 Barb.
626; Sunbolf v. Alford, 8 M. & W. 248; Wolff . Summers, 2 Camp. 631;
Cooke v. Gibbs, 8 Mass. 193.
* Shaw v. Davis, 55 Barb. 389; see also Towns v. Pratt, 33 N. H. 345.
• Deposit Bank ⚫. Wickham, 44 Howard,' 421; Rothschild v. Boelter,
18 Mino. 301; Towns ». Pratt, 83 N. H. 345; Frazier ♥. Barnum, 19
N. J. Eq. 816; Smith e. Rogers, 16 Geo. 479.
PROPERTY SUBJECT TO ATTACHMENT. 821
Statutory Exemptions-Stock Feed, &c.
social occasions.' The statute, therefore, to protect the debtor
will apply to all his clothing and that of his family, except
such articles, if any, that may be properly termed mere luxu-
ries. It will even be extended so far as to shield from levy
the cloth and trimmings purchased by the debtor and placed
in the hands of his tailor for the purpose of being made into
clothing."
$396. Stock, feed and provisions. Subd. 4 of section 1390
exempts from levy "ten sheep with their fleeces, and the yarn
or cloth manufactured therefrom, one cow, two swine, the
necessary food for those animals, all necessary meat, fish, flour
and vegetables, actually provided for family use, and necessary
fnel, oil and candles for the use of the family for sixty days."
The fleeces, or the yarn or cloth manufactured from the fleeces,
of ten sheep are exempt from execution in the hands of the
householder, although he may not be the owner of the sheep
from which the same were derived.' The exemption of the
cloth manufactured from exempt wool will include carpets
woven therefrom.*
❤
In designating the property claimed to be exempt, the
debtor may make such selection as will most benefit him in a
pecuniary point of view, withont regard to the effect it may
have upon the rights of the attaching creditor. Thus, where
he owns two cows, and one of them is located beyond the ju-
risdiction of the court, he may select the other, and thus pre-
vent the creditor from securing either of them. So where one
of the cows is held by him subject to a mortgage, or as a
bailee, he may claim the exemption on the other; and if the
1
¹ Peverly v. Sayles, 10 N. H. 856.
• Richardson v. Bushnell, 10 Met. 506.
• Hall ⚫. Penney, 11 Wend. 44; Brackett v. Watkins, 21 Wend. 68.
• Sims . Reed, 12 B. Monr. (Ky.) 53.
Lidsey v. Fuller, 10 Watts, 144; Trovillo ». Shingles, Id. 438;
Robinson v. Myers, 8 Dana, 441.
• Ibid.; Hill ». Loomis, 6 N. H. 283; Greenleaf v. Sanborn, 44 N. H.
16; Tryon v. Mansir, 2 Allen, 219.
21
.322
THE LAW OF ATTACHMENT.
Statutory Exemptions-Stock Feed, &c.
debtor has no cow, he may claim under that exemption a heifer
not old enough to milk, kept by him for that purpose.' Where
the debtor owns a cow and ten sheep, he is entitled, under the
provision exempting "the necessary food for those animals,"
to sufficient hay to keep them in feed during the succeeding
foddering season. As the statute is confined to the feed neces-
sary for the debtor's stock, it is evident that he cannot claim
an exemption under this clause unless he either owns some of
the stock specified in the statute, or in good faith has set it
apart for the purpose of feeding it to such stock which he in-
tends and has the means to purchase.*
In regard to the clause exempting provisions for family
use, it may be stated that they are exempt if they were, in
fact, purchased or grown as provisions to support the family,
and adapted to that purpose. This rule excludes all articles
kept by a dealer for sale, or raised for the purpose of being
placed in the market, and all provisions purchased for sale and
not for family use, although the household wants may have
been supplied therefrom. But if they were, in fact, originally
provided for family use, the owner does not lose the right of
exemption by taking them to the market to be exchanged for
other provisions to be used in the family.' Potatoes planted
for family use are exempt from attachment before they are
dug.'
§ 397. Homestead. The homestead occupied as a resi-
dence by a householder having a family is by statute exempted
to a certain extent, and under certain conditions, in every
state in the Union, from levy and sale under execution. The
value of the exempt homestead interest differs in each state.
1 Carrith v. Grassee, 11 Gray, 217.
'Farrell v. Higley, Lalor, 87.
⚫ Cowan v. Main, 24 Wis. 569; King v. Moore, 10 Mich. 538.
Guptil v. McFee, 9 Kan. 80; Nash . Farrington, 4 Allen, 157;
Robinett v. Doyle, 2 West. L. M. 585.
'Shaw v. Davis, 55 Barb. 389.
• Carpenter's. Herrington, 25 Wend. 870; Mulligan . Newton, 16
Gray, 211.
PROPERTY SUBJECT TO ATTACHMENT. 823
Statutory Exemptions-Homestead.
It runs all the way from $500 to $1,000 in the Eastern states
to ten times that amount in some of the newer Western states.
In order to attract immigration, many of the Western and
Southern states have passed laws, cutting down the statutory
limitation of the right to commence actions to the very nar-
rowest limit, and have at the same time made the most lib-
eral provisions for the protection of their resident house-
holders from the process issuing out of such actions. The
provisions of the several states in this respect are stated fully
at the end of this work under the head of statutory exemp-
tions. It is only necessary here to state the general princi-
ples applicable thereto.
The first requisite of a homestead is the fact that it is es-
sentially the home of the person claiming it. Three facts are
necessary to constitute a homestead: first, its actual occupancy
as a residence by the family of the householder;' second, the
intention on his part to make it a permanent home; third,
the subsequent performance of the requirements, if any, pro-
vided by statute as a pre-requisite for the creation of such a
right. If the intent to make the place a home exists, the oc-
cupation may in certain special cases be partial, provided that
it is all that the circumstances of the occasion permitted, as
where the debtor purchased a dwelling for a permanent resi-
dence, placed his furniture and household goods in the house
and boarded with his family in another place until certain
necessary repairs were completed, pending which an attach-
ment was levied ; and where the levy was made while the debtor
was moving his furniture into a new building erected by the
¹ Franklin v. Coffee, 18 Tex. 413; Philleo . Smalley, 23 Tex. 498;
Morgan v. Stearns, 41 Vt. 898; Davis v. Andrews, 80 Vt. 678; Hoitt v.
Webb, 86 N. H. 158; Kresin o. Mall, 15 Minn. 116; Campbell v. Adair,
45 Miss. 170; Coolidge v. Wells, 20 Mich. 79; Dyson v. Sheley, 11
Mich. 527; Brown v. Martin, 4 Bush, 47; Elston v. Robinson, 23 Iowa,
208; Christy v. Dyer, 14 Iowa, 438; Tourville . Pierson, 89 Ill. 446;
Benedict. Bunnell, 7 Cal. 245; Holden v. Pinney, 6 Cal. 234; Moss v.
Warner, 10 Cal. 296; Kaster v. McWilliams, 41 Ala. 802.
• Lee v. Miller, 11 Allen, 47; Gregg v. Bostwick, 83 Cal. 227.
* Neal v. Coe, 85 Iowa, 407.
224
THE LAW OF ATTACHMENT.
Statutory Exemptions-Homestead.
debtor as a home for his family and before his family had in
fact gone in,' is a sufficient occupation to answer the require-
ments of the homestead law. This principle is extended so
far in Texas as to go outside the rule and form an exception.
There, the purchase of property for a homestead and the com-
mencement of improvements thereon for that purpose is held
sufficient possession to answer the statutory requirements of
that state. The term "home" is so connected with each as to
render the terms homestead and domicil to a certain extent
synonymous. But although the premises must be occupied by
the claimant to homestead rights, it does not follow that his oc-
cupation must be exclusive. Portions of the dwelling-house
may be used as a place of business, or rented out and occupied
by others, or the entire premises kept as a hotel or lodging-
house.*
§ 398. In regard to the extent of the homestead, it may be
stated that the limit is sometimes designated by the quantity
or character of the land, sometimes by its value only, and some-
times by both. Thus, in New York it covers "one lot of land,
with one or more buildings thereon, not exceeding in value
one thousand dollars." This is a double limitation. The build-
ings erected on the lot need not be strictly appurtenant to the
dwelling-house of the claimant, provided a portion of the prop-
erty is used for that purpose. But this rule only applies where
the erection of such additional buildings does not necessarily di-
minish the size of the original homestead lot by carving out new
lots therefrom. If such is the object or effect of the additional
1 Fogg v. Fogg, 40 N. H. 282.
* Franklin v. Coffee, 18 Tex. 413.
8 Phelps v. Rooney, 9 Wis. 70; Orr v. Shraft, 22 Mich. 260; Moore
. Whitis, 30 Tex. 440; Mercier v. Chace, 11 Allen, 194; In re Tertel-
ling, 2 Dill. 839; Goldman ». Clark, 1 Nev. 607; sed contra, Rhodes v.
McCormick, 4 Iowa, 868, where the right is limited to the portion of
the premises occupied by the owner.
• Hubbell v. Canaday, 58 Ill. 425; Kefley . Baker, 10 Minn. 154;
Kirtland. Davis, 43 Geo. 818; Hancock ». Morgan, 17 Tex. 582; Clark
*. Shannon, 1 Nev. 568.
PROPERTY SUBJECT TO ATTACHMENT. 325
Statutory Exemptions-Homestead.
structures, as where, for instance, they are built to be rented out
to third parties, they necessarily curtail the homestead lot to
the ground used in fact for family or dwelling purposes, and
the appurtenant buildings with the grounds necessarily con-
nected therewith and used as the new home lot. Under such
circumstances the rented or disconnected buildings cannot be
considered exempt as parts of the original homestead.' The
appurtenant buildings erected in connection with the home-
stead form part thereof. They consist of the customary out-
houses, barns, stables, smoke-houses, and all other buildings
necessary to the family use or convenient to the requirements
of a householder in the particular business he may be engaged
in,' and where that business requires the use of a separate of-
fice or shop and the same is erected on the homestead lot it
will be protected by the statute."
The term "lot" as used in the statute does not necessarily
mean the ordinary city lot of 25 by 100 feet. It means the
entire enclosed plot of ground that forms in fact but one dis-
tinct parcel of land and is used in its entirety in connection
with the dwelling-house constituting the home of the person
claiming the right of exemption. The fact that the same is
divided by imaginary lines into separate lots by city survey
or otherwise does not affect the question. But where the
house is substantially a double one, and built for two families,
each of which occupies separate portions of the lot, it is sub-
stantially two houses and lots, and the homestead rights of the
owner will not protect the portion occupied by his tenant."
Where the statute refers to the homestead without de-
signating the area, a different rule applies. In the country
•
'Hoitto. Webb, 36 N. H. 158; Casselman v. Packard, 16 Wis. 115;
Kurz v. Brusch, 13 Iowa, 871.
• Greeley v. Scott, 2 Cent. L. J. 361; Ackley v. Chamberlain, 18 Cal
181; Gregg v. Bostwick, 83 Cal. 227.
* Pryor v. Stone, 19 Tex. 871; Stevens. Hollingsworth, 7 C. L. N.
198.
Thornton. Boyden, 81 III. 200; Wassell v. Tunnah, 25 Ark. 101.
* Dyson v. Sheley, 11 Mich. 527.
326
THE LAW OF ATTACHMENT.
Statutory Exemptions-Homestead.
it will cover the home farm. In a village, a large plot of
ground used in connection with the dwelling-honse, while
in a city it will be limited to the lot occupied by the owner.
It need not be in a compact body but may be separated by
highways, streets or alleys. Some of the states go so far as
to hold that all farming property used as a part of the home-
stead may be exempt although portions of it are separated
from the rest by the lands of third parties; but the better
rule in my opinion is to limit the right to one undivided
plot or one or more contiguous plots, forming in fact a single
tract of land and occupied and worked together as an entire
body of land.
§ 399. The value limit. Where, as in New York, there is
a value limit, the debtor can only hold the homestead to the
extent of that value. If it is of a greater value the surplus is
leviable. In that event if the property may be apportioned
without serious damage, a sufficient portion in value to cover the
statutory limit may be set off to the plaintiff and the balance
sold under the levy. If this cannot well be done, the entire
property will be sold, a sum equal to the statutory exemption
be paid to the defendant, and the balance pass under the
attachment to the benefit of the judgment creditor."
§ 400. The title. It is not necessary that the householder
claiming the right of exemption should be the owner in fee
of the homestead estate. Any other possessory right thereto
is sufficient. It protects his interest in the property, whatever
'Gregg v. Bostwick, 83 Cal. 227; Estate of Delaney, 87 Cal. 179;
West River Bank v. Gale, 42 Vt. 27; Bunker v. Locke, 15 Wis. 635.
'Buxton . Dearborn, 46 N. H. 48; Reynolds. Hull, 86 Iowa, 894;
Martin v. Hughes, 67 N. C. 293; Mayho v. Cotton, 69 N. C. 289; Rag-
land v. Rogers, 84 Tex. 617; Iken v. Olenick, 42 Tex. 195.
* Randal . Elder, 12 Kans. 257; True ». Morrill, 28 Vt. 673; Mills
v. Grant, 86 Vt. 269; Adams v. Jenkins, 16 Gray, 146; Kreslin v. Mau,
15 Minn. 116; Bunker v. Locke, 15 Wis. 635.
• Gregg v. Bostwick, 83 Cal. 227.
• McDonald ⚫. Crandall, 43 Ill. 231; Hume v. Gossett, Id. 297; Mor-
gan v. Stearns, 41 Vt. 898; Maxey v. Loyal, 88 Geo. 531; Pittsfield Bank
♥. Howk, 4 Allen, 847; Fogg . Fogg, 40 N. H. 282.
PROPERTY SUBJECT TO ATTACHMENT. 327
Statutory Exemptions-Homestead.
that interest may be.' But the interest must attach to the
soil. If it applies to the building and is not coupled with some
possessory interest in the land upon which it stands, it is mere
personalty and therefore not the subject of a homestead exemp-
tion, which pertains only to the realty.' If at the time the right
of homestead was acquired the interest of the occupant was
less than that of a fee, and a greater interest or the entire fee
was subsequently acquired, the right will attach in pari passu
to the entire estate and not be limited to the original titlę.
By filing his declaration, he, the party, indicates his intention
to make the land his homestead; and if he afterwards acquires
an outstanding title, it attaches itself to the homestead already
acquired, and perfects the homestead right. If it were other-
wise, a homestead could not be secured which would be safe
against forced sales, unless there was at the time a perfect title
in fee-simple in the party who seeks the homestead right."
As to whether a co-tenant in possession of lands is entitled
to claim a homestead right is matter of considerable contro-
versy. The more equitable, and to my mind, the just rule
favoring such a right is supported in a number of the states.*
But in California, Minnesota, Wisconsin,' Louisiana,' and Mass-
C
¹ Doane v. Doane, 46 Vt. 485; Brooks v. Hyde, 87 Cal. 873; Poe v.
Hardie, 65 N. C. 447; Colwell v. Carper, 15 Ohio St. 279; Pelan . De
Berard, 13 Iowa, 53; McClurkin ». McClurkin, 46 Ill. 331; Orr v.
Shraft, 22 Mich. 260; Dreutzer v. Bell, 11 Wis. 114; Cheatham v. Jones,
68 N. C. 153; Johnson v. Richardson, 83 Miss. 462; Allen . Hawley,
66 Ill. 168; Tyffe v. Beers, 18 Iowa, 4; McManus . Campbell, 87 Tex.
267; sed contra, Thurston . Maddocks, 6 Allen, 427; Pezzaler v.
Campbell, 46 Ala. 85.
* See Brown . Keller, 82 Ill. 152.
Spencer v. Geissman, 87 Cal. 99.
• See Robinson v. McDonald, 11 Tex. 885; Williams v. Wethered, 37
Tex. 131; Horn ». Tufts, 89 N. H. 483; Thorn v. Thorn, 14 Iowa, 53;
Bartholomew v. West, 2 Dill. 293; McCary v. Bixly, 86 Vt. 254.
Elias. Verdugo, 27 Cal. 418; Bishop . Hubbard, 23 Cal. 517;
Kingsley v. Kingsley, 39 Cal. 665; Cametov. Dupuy, 47 Cal. 79.
• Ward o. Huhn, 16 Minn. 161.
* West v. Ward, 26 Wis. 580.
• Henderson . Hay, 26 La. An. 156.
328
THE LAW OF ATTACHMENT.
Statutory Exemptions-Homestead.
achusetts,' the right is denied for the alleged reason that the
statute intended the right of occupation in severalty, as other-
wise there would be difficulty in adjusting the interest of the
parties where the land exceeded the exemption value.
The act and the intent necessary to create the relationship in
the one case will also create it in the other. The homestead
of a person will always determine his domicil, but the domi-
cil alone does not create homestead rights. There must be in
addition the ownership in the realty, and, in those states requir-
ing it, the performance of the necessary statutory requirements,
before the central object or basis of a domicil can become a
homestead. The facts necessary to constitute the relation of
domicil have been fully considered in chapter IX.
•
§ 401. Abandonment. A person can have but one home-
stead at one and the same time;' for this reason when a party
has taken a new home he will be deemed to have abandoned
his former one, and the homestead interest therein will cease
to exist.
But as a rule the law in the case of homestead, as in domicil,
will protect the old home till a new one is required, and will
not presume an abandonment from a temporary removal for
health, pleasure or business. The presumption of animo re-
vertendi will usually preserve the old homestead rights in
such cases. The question of abandonment is one that must
be decided by the jury from the circumstances shown in each
case. It is usually a question of intent, and is governed to
a great extent by the rules applicable to the abandonment of a
domicil. It can be shown by either the declarations or the
acts of the parties or both. While a temporary absence ac-
1 Thurston v. Maddocks, 6 Allen, 427.
'Tourville . Pierson, 39 Ill. 446; Wright . Dunning, 46 Ill. 271;.
Saharas . Fenlon, 5 Kans. 593; Freeman on Executions, § 241.
* Wood . Lord, 51 N. H. 448; Howe v. Adams, 28 Vt. 544; Thoms
⚫. Thoms, 45 Miss. 263; Titman v. Moore, 43 Ill. 170; Trawick » Har-
ris, 8 Tex. 812; Taylor e. Boulware, 17 Tex. 74.
Ives. Mills, 87 IL 78; Guiod v. Guiod, 14 Cal. 506; Herrick ».
PROPERTY SUBJECT TO ATTACHMENT. 329
Statutory Exemptions-Homestead.
companied with a short rental of the homestead is no evidence
of such an intent,' yet if the rental is for a term of years and
accompanied with an attempt to sell the property, the facts
will raise the prima facie presumption of abandonment."
But the presumption will not be drawn from the attempt
to sell without a change of residence. Even if the property
is actually deeded to a third party the homestead right is not
thereby lost if the deed is proved to be fraudulent and void.'
The homestead of an absconding debtor cannot be attached
while in the actual possession of his family.*
§ 402. In regard to the debts against which this right of ex-
emption may be claimed, it may be stated as a general rule that
the statute will not apply to those created prior to the passage
of the act creating homestead rights. It is, in the supposition
of the law, a part of every contract that all the property of
each contracting party not then withdrawn by the operation of
the statute of exemptions from levy shall be subject to the
claims of either party growing out of the stipulations entered
into by them. Hence a subsequent statute that removes a por-
tion of such property from the operation thereof impairs the
obligation of contracts and is nnconstitutional and void. This
Graves, 18 Wis. 153; Wetz v. Beard, 12 Ohio St. 431; Mills v. Von Bus-
kirk, 32 Tex. 360; Austin v. Stanley, 46 N. H. 51; Davis . Kelley, 14
Iowa, 523; Taylor e. Hargous, 4 Cal. 268; Dulanty v. Pynchon, 6 Allen,
510; Stewart v. Brand, 23 Iowa, 478; Rix v. Capitol Bank, 2 Dill. 369;
Woodbury . Luddy, 14 Allen, 1; Shepherd v. Cassiday, 20 Tex. 24;
Woolfork. Rickets, 41 Tex. 858; Tomlinson v. Swinney, 22 Ark. 400;
Locke v. Rowell, 47 N. H. 46.
¹ Locke v. Rowell, 4? N. H. 46.
'Davis v. Andrews, 30 Vt. 678; Dutton v. Woodbury, 24 Iowa, 74.
• Currie . Sutherland, 54 N. H. 475; Castle v. Palmer, 6 Allen, 401;
Wood ». Chambers, 20 Tex. 247; Crummen v. Bennel, 68 N. C. 494;
Hugunin . Dewey, 20 Iowa, 868; In re Poleman, 19 Int. Rec. 93; Cox
d. Wilder, 2 Dill. 45; McFarland v. Goodman, 13 Am. L. Reg. (N. S.)
697.
In re Pratt, 1 Cent. L. J. 290; White v. Clark, 36 Ill. 285; Locke
v. Rowell, 47 N. H. 46; Moore v. Dunning, 29 Ill. 180.
• The Homestead Cases, 22 Gratt. 266; Grant v. Crosby, 51 Geo. 460;
330
THE LAW OF ATTACHMENT.
Statutory Exemptions-Homestead.
rule has been extended so as to exclude from the operation of
the statute all debts created prior to the acquisition of home-
stead rights.' There are strong equities in favor of this posi-
tion. A retail merchant securing credit on the strength of a
stock of goods amounting to $1,000, if permitted to dispose of
the same and use up the purchase money in the acquisition of
a homestead of that value, may defraud his creditors with im-
punity under the very sanction of the law. Such a policy in
states having homestead privileges to the extent of $5,000 to
$10,000 would effectually bar mercantile credits and thus oper-
ate injuriously to the persons sought to be protected thereby.
Although this cannot be said to be the general rule, it certainly
is a just one.
Jones. Brandon, 48 Geo. 593; Lessley v. Phipps, 49 Miss. 790; Gunn v.
Barry, 15 Wall. 610; Kibbey v. Jonas, 7 Bush, 243; Cochran v. Darcy,
6 Ch. Leg. News, 230; Milne v. Schmidt, 12 La. An. 553; and see Hill
. Kessler, 63 N. C. 437.
¹ Stevens v. Stevens, 10 Allen, 146; Rice v. Southgate, 16 Gray, 143;
Clark v. Potter, 13 Gray, 21; Hyatt v. Spearman, 20 Iowa, 510; Delevan
♥. Pratt, 19 Iowa, 429; Farra . Quigly, 57 Mo. 284; Lawton v. Bruce,
89 Me. 484; Laing ». Cunningham, 17 Iowa, 510; Brainard v. Van Ku-
ran, 22 Iowa, 264; Mills. Spaulding, 50 Me. 57; Pryor . Smith, 4
Bush, 879.
PROPERTY SUBJECT TO GARNISHMENT. 331
Property in the Possession of Third Parties.
CHAPTER XXI
PROPERTY IN THE POSSESSION OF THIRD PARTIES.
SECTION 403. Where leviable property of the defendant in
attachment is not in his possession, but held for him by a third
party either as trustee or bailee, but under such circumstances
that the sheriff cannot take manual possession thereof, the
usual procedure is to maintain a separate action by way of
garnishment or trustee process against the holder for the pur-
pose of reducing the same to possession and applying the
proceeds to the payment of the judgment in the original
action. In some of the Code States, including New York, the
property is attached in the original action by serving a copy
of the warrant on the holder and requiring from him a cer-
tificate as to whether he has in his possession any of the de-
fendant's property, and, if so, what, and under what circum-
stances he holds it. A summary examination of such third
party is also authorized in a proper case and the whole matter
may be disposed of equitably without the delay, costs and dis-
advantages of a separate action by the plaintiff. If necessary
a suit may be instituted by the sheriff against the bailee to
acquire possession of the property and the case will then bear
a close analogy to the garnishment proceedings of other States.
But whatever process may be used to reach the property and
whatever designation may be given to the procedure the prin-
ciples in regard to the rights involved remain the same. The
differences in this respect are in form and not in substance.
They involve the manner of reaching the end and not the
end itself or the right to obtain it. We shall therefore use
the term "Garnishment" in referring to the process of secur-
332
THE LAW OF ATTACHMENT.
Property in the Possession of Third Parties.
ing property or collecting debts from third parties in attach-
ment proceedings without regard to the process by which the
same is effected. In this chapter we will consider the property
capable of being reached by this procedure.
§ 404. Only applies to leviable property. As a general rule
the process of garnisment only affects such property as could
be attached if the same were in the possession of the defend-
ant. Hence property exempt by statute from execution or the
proceeds arising from the sale thereof cannot be taken in
garnishment proceedings."
§ 405. Property charged with liens. It follows from the
foregoing rule that goods in the possession of the garnishee,
пpon which he has a lien for advancements, not being subject
to execution until the claim is discharged, cannot be made the
subject of garnishment at the suit of a creditor of the con-
signor," and it may be stated generally that goods in the hands
of a bailee upon which he has a lien, cannot be attached in an
action against the bailor. In fact the right to hold posses-
sion of property until the satisfaction of a lien thereon is al-
most invariably held to be a good defense to garnishment pro-
ceedings. A pledge of personal property being but a mere
bailment is within the general rule, and the pledged property
cannot, in the absence of enabling statutes, be taken in attach-
ment proceedings against the pledgor until the lien has termi-
nated by payment or otherwise. In many of the states, how-
¹ Staniels . Raymond, 4 Cush. 814; Stebbins v. Peeler, 29 Vt. 289;
Davenport v. Swan, 9 Humphreys, 186; Christmas . Biddle, 13 Pa. St.
829; Brown v. Heath, 45 N. H. 168.
• Brownell •. Carnley, 8 Duer, 9.
Stief v. Hart, 1 N. Y. 20; Truslow ♥. Putnam, 4 Abb. Dec. 425;
Curtis s. Norris, 8 Pick. 280; Grant v. Shaw, 16 Mass. 341.
* Bank ». Levy, 1 McMullan, 481; Smith v. Clarke, 9 Iowa, 241;
Kirkman ⚫. Hamilton, 9 Martin, 297.
Central Bank v. Prentice, 18 Pick. 896; Howard v. Card, 6 Me.
858; Callender. Furbish, 46 Me. 226; Hudson ●. Hunt, 5 N. H. 588;
PROPERTY SUBJECT TO GARNISHMENT. 833
Property in the Possession of Third Parties.
ever,
the rule has been abrogated by statute and such property
may be reached by garnishment and held, subject only to the
interest of the pledgee therein for the payment of the debt
forming the basis of the pledge.'
In New York, while goods held subject to a lien are not
attachable as against the interest of the lien-holder, yet the
interest of the bailor or consignor may be attached under the
process of garnishment provided under the Code, by leaving a
notice with bailee or consignee showing the interest levied
upon.'
A mortgagor cannot be held as a garnishee unless he is in
possession" and has been either paid or tendered the amount of
the mortgage debt."
§ 406. The bailee of an instrument for the payment of money
cannot be held as garnishee in those states where such prop-
erty cannot be taken under execution. This rule covers all
Whitney. Dean, 5 N. H. 249; Patterson v. Harland, 12 Ark. 158;
Rhoads v. Megonigal, 2 Pa. St. 39; Kergin v. Dawson, 6 Ill. 86,
¹ Boardman v. Cushing, 12 N. H. 105; Chapman v. Gale, 83 N. H.
421; Blake v. Hatch, 25 Vt. 555; Hughes v. Cory, 20 Iowa, 399; Carty
v. Fenstemaker, 14 Ohio St. 457; Treadwell v. Davis, 34 Cal. 601.
'Brownell v. Carnley, 8 Duer, 9; Kuhlman v. Orser, 5 Duer, 242,
250; Patterson v. Perry, 5 Bosw. 518; Bank of Mutual Redemption v.
Sturgis, 9 Bosw. 608; Wood . Orser, 25 N. Y. 848.
* Central Bank v. Prentice, 18 Pick. 896; Pierce v. Henrie, 35 Me.
57; Wood v. Estes, 35 Me. 145; Callender . Furbish, 46 Me. 226.
Selleck . Phelps, 11 Wis. 380; Frisbee v. Langworthy, 11 Wis.
875.
'Scofield . White, 29 Vt. 830; Fuller v. Jewett, 87 Vt. 478; Rundlet
v. Jordan, 8 Me. 47; Clark v. Viles, 32 Me. 84; Maine F. & M. Ins.
Co. v. Weeks, 7 Mass. 468; Gore ». Clisby, 8 Pick. 555; Price v. Brady,
21 Tex. 614; Tirrell ♥. Canada, 25 Tex. 455; N. H. I. F. Co. v. Platt, 5
N. H. 193; Stone v. Dean, 5 N. H. 502; Fitch v. Waite, 5 Conn. 117;
Grosvenor v. Farm. & Mech. Bank, 13 Conn. 104; Allen v. Erie City
Bank, 57 Pa. St. 129; Raiguel . McConnell, 25 Pa. St. 862; Jones v.
Norris, 2 Ala. 526; Marston v. Carr, 16 Ala. 325; Wilson ♥. Albright,
2 Greene, 125; Moore . Pillow, 8 Humph. 448.
834
THE LAW OF ATTACHMENT.
Property in the Possession of Third Parties,
choses in action. But the converse is the rule wherever by
statute, as in New York, an execution can be levied upon any
property capable of manual delivery. Such property if in the
hands of the defendant would, if the sheriff could seize it, be
levied under either execution or attachment. And the general
rule as to garnishment covering all leviable property in the
hands of third parties, it would seem that such property would
come within the rule without any express statute to that
effect. The sheriff could advertise and sell it the same as he
could any other species of personal property; and, in addition
thereto, if the levy were under an attachment, he could pro-
ceed to collect the claims instead of selling them at auction. It
would be difficult to draw any practical line of demarkation
between choses in possession and choses in action in such cases.
There can be no question as to the right of garnishment in
such a case under the New York Code of Civil Procedure.
Section 648 provides that "the attachment may also be levied
upon a cause of action arising upon contract, including a bond,
promissory note, or other instrument for the payment of money
only whether past due or yet to become due
which
belongs to the defendant and is found within the county.
The levy of the attachment thereupon is deemed a levy upon,
and a seizure and attachment of the debt represented thereby."
Section 650 provides that "upon the application of a sheriff,
holding a warrant of attachment, the president or other head
of an association or corporation, or the secretary, cashier, or
managing agent thereof, or a debtor of the defendant, or a
person holding property including a bond, promissory note or
other instrument for the payment of money belonging to the
defendant, must furnish the sheriff with a certificate," &c.
This clearly provides for the attachment of choses in action in
the hands of a bailee, the equivalent to the garnishment of
other states.
•
¹ Hopkins v. Ray, 1 Met. 79; Meacham, . McCorbitt, 2 Meto. 852;
Drake on Attachment, § 481.
* See Russell v. Ruckman, 8 E. D. 8. 419.
PROPERTY SUBJECT TO GARNISHMENT. 335
Property in the Possession of Third Parties.
§ 407. Non-resident bailees and debtors. The underlying
principle of garnishment seems to be that a bailee or debtor
may be made to turn over property or pay money to a creditor
of the person entitled thereto instead of to such person, pro-
vided the same may be done without any additional trouble.
Hence comes the rule that persons or corporations must be
permitted to discharge all obligations of this nature at their
own homes, without they have stipulated to do so elsewhere.
Non-residents' and foreign corporations' cannot, therefore, as a
general rule, be made subject to proceedings in garnishment
with respect to obligations due to other non-residents or
foreign corporations. This rule has also been observed in the
case of a non-resident garnishee and a resident defendant."
The reasons for the main proposition are set forth in Sawyer v.
Thompson* under the New England system of attachments,
where the garnishee is termed a "trustee." "The indebtedness
attempted to be reached is between parties resident in other
jurisdictions who have never been domiciled within this state,
payable and to be discharged in the foreign jurisdiction. But
it is well settled that a chose in action cannot be reached by the
trustee process under circumstances like the present. It is
regarded as having a situs and locality where the party resides.
The payment cannot be enforced within this jurisdiction by
this process of a debt due from a debtor residing in another
state, and payable in that jurisdiction. A chose in action in
reference to the foreign process stands precisely upon the
same ground as chattels of the principal debtor, found in the
possession of the trustee, located and deliverable to him in
'Sawyer v. Thompson, 4 Foster (N. H.) 510; Tingley . Bateman,
10 Mass. 843.
* Smith . B. C. & M. R. R., 83 N. H. 337; Gold v. Housatonic R. R.
Co., 1 Gray, 424; Bradford v. Mills, 5 R. I. 393; Willett v. Equitable
Ins. Co., 10 Abb. N. 8. 20.
• Hart v. Anthony, 15 Pick. 445; Jones . Winchester, 6 N. H. 497;
Bates v. New Orleans, etc. R. R. Co., 4 Abb. Pr. 72; Green . Farmers'
and Citizens' Bank, 25 Conn. 452; Lovejoy v. Albee, 83 Me. 414; Baxter
⚫. Vincent, 6 Vt. 614.
4 Foster (N. H.) 110.
836
THE LAW OF ATTACHMENT.
Property in the Possession of Third Parties.
another state. The trustee is no more answerable for the
chose in action, payable in the foreign jurisdiction, than for
the goods that are located there. No lien is created by the
service of process upon either. Both classes of property are
equally local. To compel a performance of the contract in
reference to either class of property, in a jurisdiction different
from that of the stipulated performance, would be to allow a
creditor of the principal debtor to enforce a contract in a man-
ner different from its legal effect and from the agreement of
the parties." But this rule is not applicable where the property
is located or the debt is payable within the state where the
proceeding is instituted. Nor in the case of joint debtors,
some of whom are residents. In regard to foreign corpora-
tions there is also this further limitation, that where, as in the
case of insurance companies and in some states other corpora
tions, the law requires that in order to transact business within
the state they must appoint a local agent upon whom service
may be made equivalent to personal service in case of domestic
corporations and must also have a fund on deposit within the
state out of which judgments may be enforced, they become,
upon the acceptance of these terms, quasi domestic corpora-
tions, and may be made garnishees to the same extent as resi-
dents of the state. This rule is applicable in the several
states through which a railroad company passes, under a charter
right secured from each of them.*
1 Young v. Ross, 11 Foster, 201; Drake on Attachment, §§ 474–5.
'Peck v. Barnum, 24 Vt. 75.
• Brauser v. New England F. Ins. Co., 21 Wis. 506; McAllister v.
Penn. Ins. Co., 28 Mo. 214. This rule has been upheld, although all the
parties-the plaintiff and defendant in attachment and the corporation
garnishee-were all non-residents, on the ground that residents of other
states have the same civil rights as residents, and the garnishee within
the principle above stated had accepted all the conditions of domestic
corporations in respect to suits. Fithian v. N. Y, & Erie R. R. Co., 81
Pa. St. 114; Jones v. N. Y. & Erie R. R. Co., 1 Grant's Cases (Pa.) 457.
Smith v. B. C. & M. R. R. Co., 83 N. H. 837; B. & O. R. R. Co.
v. Gallahue, 12 Gratt. (Va.) 655.
}
PROPERTY SUBJECT TO GARNISHMENT. 337
Property in the Possession of Third Parties.
408. As to the possession of the garnishee necessary to up-
hold garnishment proceedings it may be said that constructive
possession is not sufficient. There must first be a privity of
contract between him and the defendant, which gives the
former the possession and the latter the power to demand a
return of it,' and second, there must either be absolute posses-
sion' or the right and power to reduce the same to possession.'
The true test to be placed upon the right of garnishment is:
Has the defendant the right, upon demand, to maintain re-
plevin against the garnishce with respect to the property
claimed to be in his possession, or assumpsit to recover the
debt claimed to be due from him? If so, garnishment will lie
against him therefor. If not, as a general rule, it will not lie.
§ 409. Bank accounts held in the name of the defendant, either
individually or as agent, cannot under the foregoing rule be
attached as the property of the defendant if the entire fund
in good faith belongs to another as principal and the agent is
not knowingly permitted to use it for his own purposes. But
where the agent is permitted by the principal to use the same
account in his individual transactions, depositing and checking
out on his own account, the court, to prevent fraud, will inter-
pose and hold the entire account as the defendant's. And the
courts have held that the mere fact of permitting the account
to be kept in the name of the agent individually is sufficient
to render the same liable in garnishment for his personal debts,
although the deposits and all the drafts were on account
1 Kelly v. Roberts, 40 N. Y. 432; Cook v. Dillon, 9 Iowa, 407; Briggs
♥. Block, 18 Mo. 281; Burnham v. Bcal, 14 Allen, 217; Skowhegan
Bank .. Farrar, 46 Me. 293; Drake on Attachments, §§ 485-7.
• Andrews ✔. Ludlow, 5 Pick. 28.
* Morse v. Holt, 22 Me. 180.
On this point see Thompson v. Stewart, 3 Conn. 171; Park v.
Matthews, 36 Pa. St. 28; Russell v. Lewis, 15 Mass. 127; Hearne v.
Crutcher, 4 Yerg. 461.
'Jones v. Bank of Northern Liberties, 44 Pa. St. 253; Farmers' &
Mechanics' National Bank v. King, 57 Pa. St. 202.
23
338
THE LAW OF ATTACHMENT.
Property-In Custodia Legis.
of his principal and he in fact had no interest in the fund.' The
ground for this rule given by the court in Jackson v. Bank of
the United States, is, that as the nominal depositor had the
right to draw out the funds in his own name, the same might
be done by his creditors through the equitable subrogation of
garnishment proceedings. If this is the only reason for the
proposition there is little security for the attaching creditor,
since it would follow that the principal having the right to the
return of the fund from the agent could enforce its delivery
from whomsoever had received it on his account. The true rule
in my opinion is that whenever it can be assumed, or the jury
shall find, either that the relationship between the defendant
and a supposed principal in relation to the deposits constituted
a fraud in fact as to the creditors of the former, or was so per-
missive of fraud on his part as to subordinate the rights of the
latter to bona fide creditors on principles of public policy, or
where from the acts of the parties the relationship of debtor
and creditor could be held to exist as to such fund between the
alleged principal and agent, then the fund may be attached by
garnishment as the property of the depositor.
§ 410. Property in custodia legis. It may be stated as a
general rule that property in the custody of the court or any
person appointed by or acting under the court, cannot be at-
tached. Neither can the court or custodian in such a case be
charged as garnishee or trustee thereof. Such money or prop-
erty is said to be in custodia legis, and is protected not only
on the grounds of public policy, but by reason of the title
being vested for the time being in such custodian.
§ 411. Sheriffs. Thus personal property attached by a sheriff
although subject to subsequent levies or attachments upon
other process placed subsequently in the hands of such officer,
cannot be levied upon while in his possession by another
officer. This arises not only from the fact that the property
¹ Jackson v. Bank of the United States, 10 Pa. St. 61.
'Benson v. Berry, 55 Barb. 620;
Baker . Kenworthy, 41 N. Y. 215;
Dubois v. Dubois, 6 Cowen, 494;
Muscott v. Woolworth, 14 How.
PROPERTY SUBJECT TO GARNISHMENT. 339
Property-In Custodia Legis.
is in custodia legis, but because possession, either actual or
constructive, is necessary to a valid attachment, and that pos-
session cannot be in two persons at one and the same time.'
And even in case of successive warrants or executions being
placed in the hands of an officer, there is but one actual levy
under the first process, the others being applicable according
to their priorities to the surplus arising upon the sale under
such levy. This rule applies between the officers of different
courts as well as between different officers of the same court,
thus property cannot be levied upon by a sheriff in a process
issuing out of a state court which is subject to an existing attach-
ment issued out of a United States court. So, on the other
hand, a ship held by a sheriff under an attachment issued out
of a state court cannot be attached by a United States marshal
under an admiralty process. But where the levy is unlawful
the rule is not applicable. The goods not then being in
custodia legis may be attached.'
§ 412. Can the money in the sheriff's hands arising from the
sale of property under execution be attached as the property of
the execution plaintiff There has been a great struggle in
Pr. 477; Thompson v. Brown, 17 Pick. 402; Ex parte Fearle, 13 Mo.
467; State v. Wilson, 56 Mo. 492; Prentiss v. Bliss, 4 Vt. 513; Burroughs
». Wright, 16 Vt. 619; West River Bank v. Gorham, 38 Vt. 649; Dawson
*. Holcomb, 1 Ohio, 277; Gray v. Maxwell, 50 Ga. 108; Campbell v.
Hasbrook, 24 III. 243.
1 Watson v. Todd, 5 Mass. 271; Vinton v. Bradford, 13 Id. 114;
Walker v. Foxcroft, 2 Me. 270; Strout v. Bradbury, 5 Id. 813; Oldham
v. Scrivener, 8 B. Monroe (Ky.) 579; Lathrop v. Blake, 8 Foster (N. H.)
46; Harbison v. McCartney, 1 Grant (Pa.) 172; Burlingame . Bell, 16
Mass. 818; Robinson v. Ensign, 6 Gray (Mass.) 300; Beers v. Place, 30
Conn. 578; Goodrich ®. Church, 20 Vt. 187.
* Tomlinson v. Collins, 20 Conn. 864; Turner v. Austin, 16 Mass.
181; Whitney v. Farwell, 10 N. H. 9; Knapp v. Sprague, 9 Mass. 258;
Whittier v. Smith, 11 Id. 211.
Freeman v. Howe, 24 How. (U. 8.) 450; Lewis . Buck, 7 Minn.
104.
The Oliver Jordan, 2 Curtis (U. S.) 414; The Robert Fulton, 1
Paine, 620; Taylor v. Carryl, 24 Pa. St. 259.
Fairbanks. Bloomfield, 5 Duer, 434, 445.
•
340
THE LAW OF ATTACHMENT.
Property-In Custodia Legis.
nearly every state to attach as the property of the plaintiff in
a judgment the proceeds of property sold under execution and
before it has been paid over by the sheriff and the attempt has
in nearly every instance failed.' In the leading case of Turner
v. Fendall," the United States Supreme Court founded this rule
upon the question of title. The opinion of the court is
thus stated: "The general rule of law is, that all chattels, the
property of the debtor, may be taken in execution, and when-
ever an officer has it in his power to satisfy an execution in
his hands, it is his duty to do so, and if he omits to perform
his duty, he must be accountable to those who may be injured
by his omission. But has money, not yet paid to the creditor,
become his property? That is, although his title to the sum
levied may be complete, has he the actual legal ownership of
the specific pieces of coin which the officer may have received?
On principle the court conceives that he has not this owner-
ship. The judgment to be satisfied is for a certain sum, not
for the specific pieces which constitute that sum, and the claim
of the creditor on the sheriff seems to be of the same nature
with his claim under the judgment, and one which may be
satisfied in the same manner. No right would exist to pursue
the specific pieces received by the officer, although they
should even have an ear-mark, and an action of debt, not
of detinue, may be brought against him, if he fails to pay over
the sum received, or converts it to his own use. It seems to
the court, that a right to specific pieces of money can only be
acquired by obtaining the legal or actual possession of them,
and until this is done, there can be no such absolute ownership
¹ Dubois v. Dubois, 6 Cowen (N.Y.) 494; McMillan . Richards, 9
Cal. 265; Clymer o. Willis, 8 Id. 863; Geary v. Shepard, 1 Root (Conn.)
544; Iill ». LaCrosse, &c. R. R. Co., 14 Wis, 291; Prentiss v. Bliss, 4
Vt. 513; Stebbins . Peeler, 29 Vt. 289; Pawley . Gains, 1 Overt.
(Tenn.) 208; Blair . Cantey, 2 Speers (S.C.) 84; Burrell v. Ļetson, 1
Strobh. (S. C.) 239; Fretz v. Heller, 2 Watts & Serg. (Pa.) 397; Dawson
⚫. Holcomb, 1 Ohio, 277; Reddick v. Smith, 4 Ill. 451; Lightner v.
Steinagel, 33 Ill. 510; Jones . Jones, 1 Bland, 443; Farmers' Bank v.
Beaston, 7 Gill & Johnson, 421; Thompson v. Brown, 17 Pick. 463.
1 Cranch, 110.
PROPERTY SUBJECT TO GARNISHMENT. 341
Property-In Custodia Legis.
as that execution may be levied on them. A right to a sum
of money
in the hands of a sheriff can no more be seized than
a right to a sum of money in the hands of any other person,
and however wise or just it may be to give such a remedy,
the law does not appear yet to have given it.”
§ 413. Can the sheriff be held as garnishee in such a case?
The principle decided in this case has ever since been followed
in this country. But the question as to whether the sheriff
might, under such circumstances, be held liable as garnishee in
a claim against the judgment creditor is one more difficult in
its determination. The rule in the foregoing case was founded
upon the fact that the fund in the sheriff's hands was not the
property of the plaintiff, and hence could not be levied upon
in the ordinary way. But surely the sheriff is under obliga-
tion to turn over a sufficient sum out of the same to pay the
plaintiff's execution. In case there is not sufficient funds in
his hands to pay the amount called for by the levy, then he is
liable to turn over the whole sum less his costs. In case he
refuses, an action will lie for a false return. Does not the
existence of this money and the obligation to hand it in bulk
or pay it to the execution creditor bring the case within the
garnishment process, if not as having goods in his hands be-
longing to another, at least as being obligated to pay him a
certain sum of money? On this point the courts differ, some
holding in favor' and others against garnishment proceedings
at the suit of a creditor of the execution creditor. Balanced
by numbers the authorities do not sustain the right of garnish-
ment in such a case, but I am of the opinion that under the
¹ Lovejoy . Lee, 85 Vt. 430; Conant . Bicknell, 1 D. Chipman
(Vt.) 50; Crane v. Freese, 1 Har. (N. J.) 805; Dolby v. Mullins, 3
Humph. (Tenn.) 437; Woodbridge v. Morse, 5 N. H. 519; Hill v. Beach,
1 Beas. 81.
4 Clymer v. Willis, 3 Cal. 363; Lightner v. Steinagel, 33 Ill. 510;
Drane v. McGavock, 7 Humph. 132; Pollard v. Ross, 5 Mass. 19; Robin-
son. Howard, 7 Cush. 257; Farmers' Bank . Beaston, 7 Gill. & J.
421; Overton v. Hill, 1 Murph. 47; Zurcher o. Magee, 2 Ala. 253; Mar-
vin o. Hawley, 9 Mo. 882.
342
THE LAW OF ATTACHMENT.
Property-In Custodia Legis.
process of attachment of debts existing in New York the courts
will uphold it. The right to require the sheriff to pay over
the money to the execution creditor is a chose in action. The
evidence of the right is the judgment and execution which
can be attached and the sheriff being thus subrogated to the
rights of the execntion creditor may receive the money due or
applicable to him, and in case the same is held by another
officer and not paid over, may sue therefor in the usual way.
Although prior to the return day of the execution the money
collected by the sheriff is in custodia legis, and possibly pro-
tected as such, yet if there is a failure within the time specified
to make the proper return therefor, the sheriff holds the same
in frand of the plaintiff's rights. A cause of action then
must accrue, enforcable either by the plaintiff or his creditors.'
§ 414. The proceeds of property sold under a void attachment
cannot, as a general rule, be attached or garnished in the hands
of the clerk of the court,' neither will money paid into his
hands by the sheriff as the assessed value of property not sub-
ject to levy that had been sold under execution against whom
a judgment of detinue had been rendered. So, also, money in
the hands of the sheriff cannot generally be taken in an attach-
ment or garnishee process against the person for whom it was
collected.*
§ 415. Money deposited or paid into court. In the case of
Dunlop v. Patterson Fire Ins. Co. (74 N. Y. 145), the New York
Court of Appeals held that money deposited with the clerk of
a court in lieu of a bond as security on appeal, is not protected
'In the case of Wehle v. Conner (69 N. Y. 546), the New York Court
of Appeals held that the attachment in such a case becomes a lien
upon the judgment and execution, and that all monies collected thereon
are liable to be applied toward the payment of any judgment in the
attachment suit.
* Lewis v. Dubose, 29 Ala. 219.
* Falconer v. Head, 81 Ala. 513.
* McMillan. Richards, 9 Cal. 363; Geary . Shepard, 1 Root
(Conn.) 544; Hill v. La Crosse, &c. R. R. Co., 14 Wis. 291.
PROPERTY SUBJECT TO GARNISHMENT. 343
}
Property-In Custodia Legis.
from attachment under the rule applicable to property in
custodia legis. This being a leading case, and discussing fully
the general principles in this class of cases, I give the opinion
in cxtenso.¹
1 "Doubtless the property, which was, in fact, made the subject of
attachment, was in the custody of au officer of a court of record, and the
appellant would at the time have had no right to remove it therefrom, or to
meddle with it. But doubtless also, the appellant had a right and interest
in that property which was capable of being transferred by it by its own
act of assignment. Had it made an assignment of it, that act would not
have removed it from the custody of the officer holding it, nor would it
have put upon him any greater liability than he assumed by the primary
reception of it. He was liable to hold it, to answer the event of the
litigation of Redfield with the appellant, and to return to the latter all
that was not required to answer the proper demand of the former. And
after the litigation should have been over with Redfield, would not the
clerk have been liable to the defendant for the whole or a residuum of
the moneys, which liability could be enforced? And it was this last
liability which would be the subject of the assignment. The claimant
and real appellant in this case is a receiver appointed by a court in
equity. He gets whatever title he has to this property by operation of
law, or by an assignment in fact, compelled by a court. Now, could
not that same liability be the subject of a transfer by process of law,
as well as by the act of the corporation or by operation of law,
and there be no illegal interference with the official power and duty of
the officer holding the property? We think that it could. It may be
granted that no process should have been issued which commanded the
taking actual possession of the property-either exclusive of the clerk
of the city court, or in common with him; nor, however the process was
worded, should it have been executed by taking or attempting to take
such possession.
"To such extent are some of the cases cited for the appellant. But
there was power to grant an attachment against the property of the ap-
pellant. The money in the hands of the clerk of the city court, or a
residuary interest in it was such property. The fund itself could not
be taken away from him. It was the right to have from him, after the
litigation with Redfield was ended, the whole or a residue of that
money, which was such property. That right was not in the custody of
that clerk, so that he could ever retain it, or, of right, pass it to another.
An attachment against the appellant's property, levied upon that, took
nothing out of the custody of the clerk, nor meddled with anything in
his hands. It seized upon an intangible right, by means of the order of
344
THE LAW OF ATTACHMENT.
Property-In Custodia Leigs.
Money paid into court as a tender, or in satisfaction of
a judgment is exempt from levy or garnishment, whether paid
to a judge or to the clerk.' But after he has directed the same
'Sibert v. Humphries, 4 Ind. 481; Hunt o. Stevens, 3 Ind. 365; Ross
v. Clarke, 1 Dall. 354; Murrell . Johnson, 3 Hill, (S. C.) 12; Daley v.
Cunningham, 8 La. An. 55; Hooks . York, 4 Ind. 636; Bowden v.
Schatzell, Bailey, Eq. 860; Corbyn v. Bollman, 4 Watts & Serg. 342.
the Supreme Court and notice to the clerk of the issuance thereof. Such
process and such action upon it made no conflict of jurisdiction between
the two courts. The city court held the money with a conceded right.
The officer of the Supreme Court held the right to receive it, or some of
it, from the clerk, when the city court should see fit to declare the pur-
pose fully served for which it took it into custody. It would not be
contended that a chose in action is not liable to attachment. (Codding-
ton v. Gilbert, 5 Duer, 72; affirmed, 17 N. Y. 489.) Yet it may exist
without a right to an immediate possession of the ultimate object of it.
A right to a legacy, charged upon land, may be attached, in the hands
of a devisee of the land, though the attaching officer may not manually
take the fund from him. The Old Code, sec. 234, expressly allowed
the levy by attachment on rights or shares in associate or corporate
stock and the sale thereof. And the New Code allows it (sec. 647).
But there was and is no manual taking of any part of the property of
the corporation, nor interference therewith or with its business or rights.
"That the clerk of the city court may be required to furnish a
certificate is no invasion of his privileges, or of the rights or jurisdiction
of the court of which he is an officer. A subpœna may issue to him
from the proper court, to bring with him some of the records of the
city court; and if he fails, he may be punished for contempt. It is not
otherwise with the power to compel a certificate.
"We may not deny that the appellant has numerous and respectable
decisions, which tend to sustain the views which he has urged upon us.
From some of them we will not differ.
"They are those which hold that a process out of one court, to its
officer, may not be served by a manual interference with the possession
of property in the custody of the officer of another court, by virtue of
its process, such interference carried to the point of the exclusion of the
latter officer; nor may there be an interference which, though it stops
short of exclusion, claims and takes a joint possession of the property.
Of this class is Freeman v. Howe, 24 How. (U. S.) 450. Neither may
we deny the soundness of other decisions to the end that such process
as an execution to a sheriff, which can be executed to effect only by an
PROPERTY SUBJECT TO GARNISHMENT. 345
Property-In Custodia Legis.
to be paid over to the parties entitled thereto, the fund may be
treated as within the absolute control of such parties, the pro-
tection of the court falls and the person holding the same may
actual caption of the property which is sought to be subjected to it,
may not be levied upon property in the hands of an officer of the court,
under certain circumstances. Of this class are Turner v. Fendall, 1
Cranchi (U. S.) 117; Baker v. Kenworthy, 41 N. Y. 215. But they go
upon the ground that an execution directs the taking of the goods and
chattels of the defendant, and that money not yet paid over to him,
though he has the right to have payment of it, is not his goods, and so
there can be no caption of it as such. But when the process is also
against a right to have property, and may be executed against an in-
tangible right, by giving notice of the existence of the process, or by
garnishment as it is called, the reason of the rule from the cases just
cited, does not remain. It is not denied, I think, in that class of cases,
that if there exists such relation between the officer and the defendant
in the attachment suit, as that there is a credit, or the right of the latter
may be deemed effects of his, there may be a gernishment (Wilder ».
Bailey, 3 Mass. 289–292); or if the money has been intrusted or deposited
with the officer by the attachment defendunt. (Id.) Clearly, in the
case before us, the defendant did deposit and intrust with the clerk its
own money, which remained its own money when the attachment order
was served upon the clerk; and that money always has been the goods,
credits and effects of the defendant, deposited in the hands of the clerk,
and of which he is a trustee of the defendant. (Id. 294.) There is
another class of cases. They hold that a debt that has passed into
judgment against the debtor may not be attached in his hands.
(Shion . Zimmerman, 3 Zab. 150.) It is for the reason that the
debtor is then liable to the execution of the judgment, and has no
chance to plead the levy of the attachment; and if the latter be held
good against him, he would be placed between clashing peremptory
processes of different courts. It is not necessary to inquire whether
this rule is applicable to our process of attachment, for it is not involved
in the facts of this case.
"There is another class of cases which comes nearer to that in haud.
It is held by them, in general terms, that money in the hands of a pub-
lic officer is not the subject of attachment. In some of them the
decision is put upon the phrases of the statute allowing the process.
(Chealy v. Brewer, 7 Mass. 259), where the words of the statute required
an intrusting and deposit by the debtor with the officer, which words
are not in our Code; and, if they were, are met by the facts of our case.
Or the money was part of a mass of public money, held by the officer
346
THE LAW OF ATTACHMENT.
Property-In Custodia Legis.
be treated as an ordinary bailee and the interest of the bene-
ficiary may be reached by garnishment.' Where the money
is delivered to the sheriff to secure a redemption of property
¹ See Gaither v. Ballew, 4 Jones, 488, and New Haven Saw Mill Co.
. Fowler, 28 Conn. 103.
for public purposes, the right to which in the attachment debtor did not
have the character of a private claim against the officer. (Bulkley v.
Eckert, 3 Pa. St. 368.) It is not to be denied, however, that a broader
rule has been laid down; that no person deriving his authority from the
law, and obliged to execute it according to the rules of law, can be
charged as garnishco in respect of any money or property held by him
in virtue of that authority. (See Drake on Attachment, sec. 494 et
sc₁, and cases cited.) I have examined enough of those cases to per-
ceive the rules laid down by them. In all which I have read, however,
there is this to be noticed: That the money in the hands of the officer
of the law did not go there directly from the debtor in the attachment,
but from some other and original and independent source over which
the attachment debtor had no control as an owner. (Coppell v. Smith,
4 T. R. 813.) In this there is a material distinction from our case.
Here the money was the absolute property of the attachment debtor,
and always continued to be its property, subject to the express and
limited rights of the clerk over it, conferred principally by the act of
the attachment debtor. As, when the right of the clerk to withhold
the whole or a part of it ceased, that debtor could demand and have the
whole or a part of it; why, as above suggested, might not the debtor
have its right of proceeding as against the clerk; and, if so, why not be
able to transfer that right; and, if so, why may not the law transfer it?
Even in some of the cases above referred to, there is a distinction taken
which makes for our view—as, if money is collected by a sheriff in
excess of the needs of the execution, that excess is attachable. (Pierce
v. Carlton, 12 Ill. 858; Lightner v. Steinagel, 33 Id. 510.) And the
reason given is that such excess is so much money in the hands of the
officer, had and received for the use of the debtor in the execution. The
same reason applies here to any portion of the deposit with the clerk in
excess of the amount needed to satisfy the claim of Redfield. It is
further said, that if anything arises to change the relation of the officers
from an official obligation to personal liabilities, he will be amenable to
the process of garnishment. It will be seen further on, herein, that this
change was effected in the case in hand. And it is to be seen, on ex-
amination, that many of the reasons given against the power to attach
moneys, or the right to moneys in the hands of an officer, do not apply
PROPERTY SUBJECT TO GARNISHMENT.
347
Property-In Custodia Legis.
sold under execution, it is considered as having been paid into
court in satisfaction of a judgment and is governed by the
same rules.¹
416. Executors, administrators and guardians. The same
principles apply to moneys received by executors, administrators
and guardians in their representative or official character. They
are quasi officers of the court appointing them, or to whom
¹ Davis v. Seymour, 16 Minn. 210; Lightner v. Steinagel, 83 IlL 510.
to the case before us. In addition to those already given is this: That
it would lead to litigation in one suit over the effects in another, and
would produce embarrassment and confusion to permit one process to
intercept money raised on another, while in the hands of the officer,
and that it might often lead to injustice, inasmuch as often the names
of persons who have the real right to money raised by process do not
appear upon the process by which the money was got. (Ross v. Clark,
1 Dallas [Penn.] 354; Crane v. Freese, 1 Harrison [N. J.] 305.) Yet,
notwithstanding this, in the case last cited it was held that the attach-
ment was well levied on the rights and credits of the attachment debtor
in the hands of the sheriff, and a feasible way was pointed out of avoid-
ing the difficulties spoken of, viz.: For the officer to bring the money
into court, which can control the application of the funds. In the case
in hand, the money is already in court, susceptible of the treatment
indicated.
“It is urged that the interest of the defendant in the money on de-
posit is but contingent, and then it is claimed that an attachment may
not be levied upon a contingent interest. There are decisions to the
effect claimed by the appellant. (Bates v. N. O. J. & G. N. R. R. Co.,
13 How. 510; Jones v. Bradner, 10 Burb. 193; Faulkner v. Waters,
11 Pick. 473.) It is not necessary that we now examine these cases
and determine whether we coincide with the conclusions of them. In
the case in hand, the right of the attachment debtor in the deposit was
not contingent. The original legal title to it was in the debtor, and the
ultimate title still remained in it, subject to the liability of the money
to answer the claim upon it of Redfield. That claim, by stipulation of
the parties to the action in the city court, confirmed by the order of that
court, had been adjusted and liquidated at a sum certain, and there was
left a considerable balance to be returned to the attachment debtor which
that order directed the clerk to pay over to the attorney of the defend-
ant in that action, or to his order. Thus there was a right in the
money on deposit, fixed and certain."
348
THE LAW OF ATTACHMENT.
Property-In Custodia Legis.
they are amenable, and cannot be considered the debtors or
bailees of the legatees. Both from reasons of public policy and
from the relative situation of the parties, they are not subject
to garnishment.' As in the case of moneys paid into court, the
moment the amount due to each party has been legally ad-
justed and ordered to be paid, it is subject to garnishment at
the suit of a creditor of the person entitled thereto.*
§ 417. Public officers. Moneys due a debtor by the United
States or state government cannot be made subject to garnish-
ment, although in the hands of the proper disbursing officers
and ready to be paid out.' The same rule holds true in the
case of local governments, the principle of custodia legis ap-
plying to all custodians of public moneys and to all persons
holding money or property under authority of the law, to be
disposed of as required by statute or a mandate of the court."
§ 418. Trustees and receivers. Where property is conveyed
to a trustee upon certain trusts the surplus remaining in his
hands after the execution of the trust may be attached as the
property of the assignor in an attachment proceeding against
¹ Winchell v. Allen, 1 Conn. 385; Shewell v. Keen, 2 Wharton, 832;
Brooks . Cook, 8 Mass. 240; Waite . Osborne, 11 Me. 185; Suggs v.
Lapp, 20 Ga. 100.
* McCreary v. Topper, 10 Pa. St. 419; Fitchett o. Dolbee, 8 Har. (Del.)
267; Richards v. Griggs, 16 Mo. 410; Estate of Nerac, 85 Cal. 392.
• Smith v. State, &c., 13 S. & M. 140; Randolph v. Randolph, 6
Rand. 194; Burnley v. Lanbert, 1 Wash. (Va.) 808; Sampson v. Bryce,
5 Munf. 175; Train v. Herrick, 4 Gray, 534; Divine v. Harvie, 7 Monr.
439; Wild . Ferguson, 23 La. An. 752.
4 Chealy v. Brewer, 7 Mass. 259; Ward v. Hartford Co., 12 Conn.
409; Millison v. Fisk, 43 Ill. 112; Ross v. Allen, 10 N. H. 96; Geer v.
Chapel, 11 Gray, 18. That municipal authorities are so protected, see
Fortune v. St. Louis, 23 Mo. 239; Bradley v. Cooper, 6 Vt. 121; Mayor
of Baltimore v. Root, 8 Md. 102; Burnham v. City of Fond du Lac, 15
Wis. 193; City of Erie . Knapp, 29 Pa. St. 173; Triebel v. Colburn, 64
IIL 876; Mayor of Mobile v. Rowland, 26'Ala. 501. Sed contra, Whid-
den v. Drake, 5 N. H. 13; Bray . Wallingford, 20 Conn. 416.
'Brooks v. Cook, 8 Mass. 246; Ladd v. Gale, 57 N. H. 210; Millison
v. Fisk, 48 Ill. 112; Bivens e. Harper, 69 Ill. 21.
PROPERTY SUBJECT TO GARNISHMENT. 349
Troperty-In Custodia Legis.
him.' So an attachment in the nature of a garnishment may
be levied upon such trust property before the trust has been
executed, and if the trust deed is void in law the lien of the
attachment will stand, otherwise it will be null and void. But
the trustee who accepted the trust in good faith may retain
sufficient for the payment of his own debt, and will be pro-
tected in bona fide sales made by him under the trust deed.'
This rule is confined to the case of express trusts created by
act of parties. In such a case the trustee owes no duty to the
public. Ilis duties, rights and privileges are prescribed by
the special authority of the contract creating the relationship,
and are strictly private in their nature. But where the person
receiving the property acquires his authority under a statute,
as in the case of an assignee in bankruptcy or under state in-
solvency laws, or by appointment of the court, as in the case
of ordinary receiverships,* such person becomes in respect to
such property an officer of the court and is privileged in re-
spect thereto under the general rule relating to property in
custodia legis. But there is the usual exception excluding
from the rule all cases where a dividend has been declared, or
the court has ordered a distribution to be made among certain
designated beneficiaries. And where there is an evident sur-
plus under a general assignment for benefit of creditors, it
may be taken by garnishment."
1
¹ McLaughlin v. Swan, 18 How. (U. S.) 217.
'Hazard v. Franklin, 2 Ala. 349.
* Yuba Co. v. Adams, 7 Cal. 35; Oliver v. Smith, 5 Mass. 188; Colby
. Contes, 6 Cush. 358; Dewing . Wentworth, 11 Cush. 499; Farmers'
Bank v. Beaston, 7 Gill & Johns. (Md.) 421.
• Gouverneur v. Warner, 2 Sandf. 624; Langdon v. Lockett, 6 Ala.
727; Martino. Davis, 21 Iowa, 535; Wiswall v. Sampson, 14 low. (U. S.)
62; Field v. Jones, 11 Ga. 413.
* Jones v. Gorham, 2 Mass. 875; Thayer v. Tyler, 5 Allen, 94.
• Todd ⚫. Bucknam, 11 Me. 41; Viall v. Bliss, 9 Pick. 13; Leeds v.
Sayward, 6 N. H. 83.
350
TIIE LAW OF ATTACHMENT.
Choses in Action-Payment in Kind.
CHAPTER XXII.
CHOSES IN ACTION.
SECTION 419. It may be stated as a general rule that garnish-
ment, or attachment of debts, can only reach such credits of
the defendant as he would have a right upon maturity to
înaintain an action at law to recover a certain specific sum of
money thereon. It is confined, therefore, to legal debts as
distinguished from equity claims,' and to actions upon a lia-
bility calling for payment in cash and not in kind, as by notes,
merchandise, labor or board. The reason given for this dis-
crimination is, that an action for the recovery of money, as for
"debt" or "indebitatus assumpsit," would not lie in such
cases. While this is true as a matter of practice, and while
the rule holds good in all states in which the right is limited to
strict "credits," it would not apply, where, as in New York
and some other states, the statute reaches out so as to grasp all
the property and property rights of the defendant in whose
1 Hoyt v. Swift, 13 Vt. 129; Grain v. Aldrich, 38 Cal. 520; Pressnall
.. Mabry, 8 Porter, 105; Victor v. H. F. Ins. Co., 33 Iowa, 210; Hassic v.
G. I. W. U. C., 35 Cal. 385; Lowry . Wright, 15 Ill. 95; Cook ♥. Wal-
thall, 20 Ala. 334; Nesbitt v. Ware, 30 Ala. 68; Hall v. Magec, 27 Ala.
414; Walker v. McGehee, 11 Ala. 273; Lundie v. Bradford, 20 Ala.
512; Godden v. Pierson, 42 Ala. 870; Patton . Smith, 7 Ired. 438;
Lupton. Cutter, 8 Pick. 298.
'Wrigley v. Geyer, 4 Mass. 101; Nesbitt v. Ware, 80 Ala. 68;
Aldrich v. Brooks, 7 Fost. 241; Mims v. Parker, 1 Ala. 421; McMinn v.
Hall, 2 Tenn. 828; Willard . Butler, 14 Pick. 550; Weil ». Tyler, 88
Mo. 545; Bartlett v. Wood, 82 Vt. 872.j
PROPERTY SUBJECT TO GARNISIIMENT. 351
Choses in Action-Character of Claim.
hands soever they might be found, and the specific articles
called for by the contract must be surrendered.'
§ 420. The New York rule. Section 655 of the New York
Code of Civil Procedure, provides that the sheriff must "col-
lect and receive all debts, effects and things in action, attached
by him. Ile inay maintain an action or special procceding, in
his name or the name of the defendant, which is necessary for
that purpose, or to reduce to his actual possession an article of
personal property, capable of manual delivery, but of which he
has been unable to obtain possession." This is certainly broad
enough to enable him to recover specific property agreed to
be paid to the debtor in lieu of a money performance of con-
tracts with him. The language is not restricted to the case of
bailment. Where there is a refusal to furnish payment in
kind, called for by contract, an action for breach of contract
for the recovery of its money valne will lie, which certainly
is within the purview of garnishment. Of course contracting
parties are not bound to vary from the requirements of their
contracts and pay in money what has been stipulated to be
paid otherwise. It follows, therefore, that if payment is to be
inade in labor or board, or in any other respect that cannot be
made available in garnishment proceedings, this remedy is not
applicable without showing a breach of performance on the
part of the garnishee.
§ 421. Right of action must be absolute, but not nccessarily
matured. Although the right of attachment of debts is re-
stricted to actionable claims, it is not necessary that there should
be a present right of action. Every chose in action, whether
due or certain to become due in the future, is within the
statute.' Where, as under the New York Code, the claim is
¹ See Stadler . Parmlee, 14 Iowa, 175; Clark ». King, 2 Mass. 524;
Comstock v. Furnum, 2 Mass. 96; King v. Hyatt, 41 Pa. St. 229.
• Fay . Smith, 25 Vt. 610; Sayward v. Drew, 6 Me. 268; Willard v.
Shenfc, 4 Mass. 285; Clapp v. Hancock Bank, 1 Allen, 894; Fulweiler v.
Hughes, 17 Pa. St. 440; Nichols v. Scofield, 2 R. L. 123; Dunnegan ♥."
352
THE LAW OF ATTACHMENT.
Choses in Action-Character of Claim.
attached in the original suit though enforced by separate
proceedings in the name of the sheriff, commencement of
action thereon must be stayed until it matures. Where the
security is acquired, as in most of the states, by a separate action
brought by the original creditor against the person indebted to
his debtor, the proceeding may be commenced before ma-
turity so as to secure priority of lien; but to preserve the
rights of the garnishee, judgment or execution thereon will be
stayed until the expiration of the term of credit.' But it is
essential that the right of action must be absolute, and the
payment definite and certain. If it depends upon a mere
contingency the statute will not apply. Thus where the lia-
bility rests upon a contract of suretyship and has not become
absolute by default or otherwise; or, where it arises under
au executory contract that has not been and may not be per-
formed by the other contracting party or, where the amount
to be paid is fixed and nothing remains to be performed by
the contract, but, by its terms the payment is postponed till
the happening of a certain event which may never occur,'
garnishment will not, as a general rule, lie. If there is
no contingency apparent from the face of the contract the
merc fact that there is a dispute as to the ownership of the
claim, or as to its validity, will not take it out of the statute.'
Byers, 17 Ark. 492; Stewart v. West, 1 H. & J. 536; Glanton v. Griggs,
5 Ga. 421.
¹ Anderson v. Wanzer, 5 How. (Miss.) 587; Wilson . Albright, 2
G. Greene, 123.
' McCormick v. Kehoc, 7 N. Y. Leg. Obs. 184; Bates v. N. O. J. &
G. N. R. R. Co., 4 Abb. 72; Frothingham v. Haley, 8 Mass. 68; Davis
v. Ham, 3 Mass. 33; Burke v. Whitcomb, 13 Vt. 421; Kettle v. Harvey,
21 Vt. 801; Clement ». Clement, 19 N. HI. 460.
Tucker v. Clisby, 12 Pick. 22; Sayward v. Drew, 6 Me. 263.
• Guild . Holbrook, 11 Pick. 101; Davis v. ILam, 3 Mass. 33; Went-
worth. Whittemore, 1 Mass. 471; Willard v. Sheafe, 4 Mass. 235;
Faulkner . Waters, 11 Pick. 473; Cutter v. Perkins, 47 Mc. 557; Taber
v. Nyc, 12 Pick. 105.
* Burke v. Whitcomb, 13 Vt. 421; Rich ∞. Waters, 22 Pick. 563.
Wentworth v. Whittemore, 1 Mass. 471; Thorndike v. DeWolf, 6
Fick. 120; Downer a. Curtis, 25 Vt. 639; Drake on Attachments, § 552.
PROPERTY SUBJECT TO GARNISHMENT.” 353
Choses in Action-Character of Claim.
So where there is an actual liability under either one of two
features in the case, the right of election remaining in the
garnishee will not render the debt contingent within the
meaning of the rule. He will be held under whichever of the
liabilities he may elect to assume.'
§ 422. Claims ex delicto,' or for unliquidated damages,' are
not debts," and cannot therefore be made the subject of
garnishment proceedings where the right is so limited. This
being the case, within the general rule, applicable to the original
attachment proceedings, what is there stated in relation to
unliquidated damages, is applicable here. While the courts
seem to agree upon the rule excluding such damages, there
seems to be considerable variance of opinion as to what claims
are unliquidated within the meaning of the rule. Probably
the best harmonizer is that suggested in the case of attach-
ments, to wit, that only those cases come within the rule in
which the contract upon which it is founded fails to furnish a
standard by which the amount of damages may be ascertained
and fixed. This distinction has been applied to garnishments
in fire insurance cases where the loss before adjustment
is certainly unliquidated, but the policy of insurance furnished
a standard whereby the same may be made certain, on the
principle of id certum est quod certum reddi potest. Hence
1 Smith . Cahoon, 87 Me. 281.
'Hudson v. Plets, 11 Paige, 180; Ten Broeck v. Sloo, 18 How. 28;
Davenport. Ludlow, 4 How. 337; Getchell v. Chase, 87 N. H. 106;
Rundlett . Jordan, 8 Greenl. 48; Hemmenway . Pratt, 28 Vt. 832;
Despatch Line v. Bellamy M. Co., 12 N. H. 205; Eddy v. Heath, 81 Mo.
141; Thayer v. Southwick, 8 Gray, 229; Lomerson v. Huffman, 1 Dutch.
625; Paul v. Paul, 10 N. H. 117; Barker v. Esty, 19 Vt. 181; Ransom ♥.
Hays, 39 Mo. 445; Graham v. Moore, 7 B. Monr. 53.
Rand v. White Mountain R. R., 40 N. H. 79; Hugg v. Booth, 2
Ired. 282; Deaver o. Keith, 5 Ired. 374; McKean v. Turner, 45 N. H.
203; Leefe v. Walker, 18 La. 1.
* Girard Fire Ins. Co. v. Field, 45 Pa. St. 129; Franklin Fire Ins.
Co. v. West, 8 W. & 8. 850; Boyle ». Franklin Fire Ins. Co., 7 W. & S.
70; Knox v. Protection Ins. Co., 9 Conn. 430; Northwestern Ins. Co. v.
Atkins, 8 Bush, 828.
23
354
THE LAW OF ATTACHMENT.
Choses in Action-Character of Claim.
fire insurance companies are often made garnishees, though
it has been held that the clause in most policies giving
the insurer the right of payment in kind by restoring or re-
building the equivalent of the property destroyed, shields
them from liability under garnishment' within the rule herein-
before stated, that claims not payable in money cannot be at-
tached. Another distinction that has been observed is, as to
whether the extent of the liability is a matter of opinion or of
calculation. In the former case they are unliquidated dam-
ages, in the latter they are not. Thus damages which cannot
be ascertained by computation or calculation-as, for instance,
those resulting from not using a farm or building a house in a
workmanlike manner, or arising on warranty in the sale of
personal property, or from negligence causing personal injuries
or loss of property, and in all cases where the amount to be
settled rests in the discretion, judgment or opinion of the jury,
to be determined by them, not by any fixed pecuniary standard,
but by all the circumstances of the case which bear upon the
question of values' are not usually within the rule.
§ 423. Claims in litigation or judgment. Under the original
garnishment proceedings of the Customs of London, a person
could not be held as garnishee at the suit of a third party if, at
the time of the garnishment, suit was pending in favor of his
immediate creditor on the same claim. This was to avoid the
necessity of defending two suits and to obviate the difficulties
arising in the case of a double judgment on a single liability.
This was formerly the rule in Massachusetts' and New Hamp-
shire, but the present prevailing rule in this country is that
the pendency of an action upon an existing liability does
not place it beyond reach of garnishment proceedings." In
¹ Martz v. D. F. & M. Ins. Co., 28 Mich. 201; See also McKcan ».
Turner, 45 N. H. 203; Gies v. Bechtner, 12 Minn. 279.
Butts v. Collins, 13 Wend. 139.
• McKean v. Turner, 45 N. H. 203; Meacham ». McCorbitt, 2 Met. 852.
• Gridley v. Harraden, 14 Mass. 490.
* Burnham •. Folsom, 5 N. H. 506.
• Freeman on Executions, § 166; Drake on Attachment, chap. 82;
PROPERTY SUBJECT TO GARNISHMENT. 355
}
Choses in Action-Character of Claim.
many of the states a different rule has been applied, where, at
the time of the garnishment, a judgment has been rendered on
the claim,' or the right to judgment and execution absolutely
determined by the report of a referee,' the verdict of a jury,'
or default suffered by the defendant. In such cases the courts
have held that third parties should not intercept the enforce-
ment of the collection of the claim by the dilatory process of
garnishment. The reasons alleged for this rule are various,
to wit, that the allowance of garnishment proceedings in
one court might interfere with the due execution of process in
another; that it is then too late to permit to plead the gar-
nishment in abatement, and that while it is proper under
ordinary circumstances for the ultimate debt under garnishment
to be appropriated to the payment of the creditor's debts
through the equitable subrogation of garnishment proceedings,
when it has become merged in judgment the judgment debtor
has no right to delay its payment. Not being in a condition to
interpose a plea in the action he could not, except by payment
to his immediate creditor, prevent the sale of his property
under execution. But where, as in New York, the statutes
in effect give the right to attach the claims due the debtor
and not merely to maintain a separate proceeding against the
persons owing him, there is no reason for the application of
the foregoing rule. The sheriff is simply subrogated to the
•
Foster v. Jones, 15 Mass. 185; Locke . Tippets, 7 Mass. 149; Foster v.
Dudley, 10 Foster, 463; Sweeny v. Allen, 1 Pa. St. 880; Smith o. Barker,
10 Me. 458; Jones v. N. Y. R. R. Co., 1 Grant's Cases, 457; Huff v.
Mills, 7 Yerg. 42; Lieber v. St. Louis, 36 Mo. 882; Trombly o. Clark,
13 Vt. 118; Wadsworth v. Clark, 14 Vt. 139.
'Norton. Winter, 1 Oregon, 47; Franklin . Ward, 3 Mason, 136;
Sharp v. Clark, 2 Mass. 91; Prescott v. Parker, 4 Mass. 170; Kerry o.
Bower, Cro. E. 186; Clodfelter v. Cox, 1 Sneed, 330; Tunstall .
Means, 5 Ark. 700; Shinn e. Zimmerman, 3 Zab. 150.
* Burrell v. Letson, 2 Spear, 378; Young . Young, 2 Hill (S. C.),
426; Bingham v. Smith, 5 Ala. 051.
'Thorndike. De Wolf, 6 Pick. 120; Wadsworth v. Clark, 14 Vt.
139; Thayer. Pratt, 47 N. H. 470.
• Burnham •. Folsom, 5 N. II. 563.
356
THE LAW OF ATTACHMENT.
•
4
Choses in Action-Character of Claim.
rights of the judgment creditor and can enforce his rights
thereunder.'
In many of the states the laws are so regulated as to
permit separate garnishment proceedings, although judg-
ment has been entered against the garnishee.' The logic
and equity of this rule is well shown by a quotation from
the opinion in Gager v. Watson (11 Conn. 168), under a
statute limiting the right to the "debts" due the debtor in
attachment: "The provisions of this statute were extended, in
1830, to the attachment 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 equally extensive. A judg
ment debt is liquidated and certain, and, in ordinary cases,
little opportunity or necessity remains for controversy respect-
ing its existence, character or amount. The policy of our
laws has ever required that all the property of a debtor, not
exempted from law by execution, should be subject to the
demands of his creditors, and that every facility, consistent
with the reasonable immunities of debtors, should be afforded
to subject such property to legal process. It is true, as has
been contended, that to subject judgment debts to attachment,
and especially those upon which executions have issued, may,
in some cases, produce inconvenience and embarrassment to
debtors, as well as to creditors. Such consequences have re-
sulted from the operation of our foreign attachment system,
in ordinary cases; and this was foreseen and has been known
¹ A judgment may be attached in this state by serving a notice of the
attachment upon the judgment debtor. (In re Flandrow, [Ct. of App.] 11
Weekly Dig. 428.) So the judgment debt, together with the moneys
in the hands of the sheriff, recovered thereon, may be attached in any
action against the judgment creditor in this state (Welile v. Conner, 83
N. Y. 231), though the rule is different in most of the other states.
* Sweeny v. Allen, 1 Pa. St. 880; Fithian v. N. Y. & Erie R. R. Co.,
81 Pa. St. 114; Minard v. Lawler, 20 Ill. 801; O'Brien v. Liddell, 10
S.& IL 871; Skipper v. Foster, 29 Ala. 830; Belcher . Grubb, 4 Har.
(Del.) 401; Halbert v. Stinson, 6 Blackf. (Ind.) 808; Gray ●. Henby, 1
S. & M. (Miss.) 598.
PROPERTY SUBJECT TO GARNISHMENT. 357
Choses in Action—Character of Claim.
to our legislators, by whom this system has been introduced,
continued and extended; but the general interest of the com-
munity 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.”
§ 424. Joint and several liabilities. The fact that a debt is
owed by two or more parties, either jointly or severally does
not affect the right of garnishment. If the liability is joint or
several the proceedings may be against one or more of the
debtors,' though to prevent defeat by payment to the attach-
ment debtor by the person not joined,' it is preferable to unite
all the debtors. They must, of course, all be united where the
liability is joint and not several,' though the rule seems to be
different in Pennsylvania. And where some of the joint
debtors are not residents a judgment in garnishment against the
joint property will be enforced though only the residents are
served with the summons.' But in such a case if the debt was
incurred in a foreign country through a co-partner residing
abroad, garnishment will not lie here, for the reason that it is
so essentially within the jurisdiction of the foreign tribunals
as to protect it from the intervention of our courts on service
прon a resident partner who may have had no knowledge of
upon
the transaction."
¹ Barker v. Garland, 22 N. H. 103; Treadwell v. Brown, 41 N. H. 12;
Speak v. Kinsey, 17 Tex. 801; Travis v. Tartt, 8 Ala. 574; Macomber v.
Wright, 35 Me. 150.
* Jewett o. Bacon, 6 Mass. 60.
* Pettes v. Spaulding, 21 Vt. 66; Hudson v. Hunt, 5 N. H. 538; Hos-
kins ». Johnson, 24 Ga. 625; Warner v. Perkins, 8 Cush. 518; Wilson v.
Albright, 2 G. Greene, 125.
4 Brealsford v. Mende, 1 Yeates, 488.
* Peck v. Barnum, 24 Vt. 75; Parker ». Danforth, 16 Mass. 200; At-
kins . Prescott, 10 N. II. 120.
Kidder v. Packard, 13 Mass. 80.
358
THE LAW OF ATTACHMENT.
Choses in Action-Character of Claim.
§ 425. The garnishment of a debt due a partnership upon a
claim against a member of the firm individually presents a
different question. The debtor may well object to have the claim
divided up into as many parts as there is joint or several owners
and be liable to suit at the instance of each of them. The law
always permits him to demand the joinderas parties plaintiffs,
of all the persons beneficially interested, whether they claim
as partners, joint tenants, or tenants in common.' This being
admitted, it would seem to follow that the same principle
would extend to the indirect proceedings by way of garnish-
ment upon the individual liability of one or more of such
creditors.' So far as it applies to copartnership liabilities,
this principle is confirmed, but solely on the ground that the
right of individual partners in firm credits cannot be de-
termined until the adjustment of accounts after dissolution;
the decision holding that, although tangible property of the
firm may be attached for the debts of a copartner, its out-
standings cannot.' In other words a partnership debt cannot
be made the subject of garnishment in favor of an individual
creditor. But where the entire legal interest of a firm has
become vested in a single surviving member of the firm, it
seems the rule will not apply, at least so far as concerns the
debts of such partner."
¹ See Freeman on Cotenancy and Partition, Chapter XV., and cases
cited therein.
Church . Knox, 2 Conn. 514.
Barry v. Fisher, 8 Abb. N. S. 369 (S. C., 39 How. 521).
• Towne v. Leach, 82 Vt. 747; Upham r. Naylor, 9 Mass. 490; Kings-
ley v. Mo. Fire Ins. Co., 14 Mo. 467; Bulfinch . Winchenback, 8 Allen,
101; Atkius v. Prescott, 10 N. H. 120; Williams v. Gage, 49 Miss. 777;
Church . Knox, 2 Conn. 514; Branch . Adam, 51 Ga. 113; Winston
9. Ewing, 1 Ala. 129; Lewis v. Paine, 1 Leg. Gaz. R. 508; Johnson .
King, 6 Humph. (Tenn.) 233; Fish . Herrick, 6 Mass. 271; Lyndon .
Gorham, 1 Gall. 867; Sed, contra, McCarty v. Emlen, 2 Dall. 277; Wal-
lace v. Patterson, 2 H. & McH. (Md.) 463; Chatzels. Bolton, 3 McCord,
83.
* Berry v. Harris, 23 Md. 30; Knox v. Schepler, 2 Hill (S. C.) 595.
PROPERTY SUBJECT TO GARNISHMENT. 359
Choses in Action—Character of Claim.
§ 426. Same. Where the subject of the garnishment is a debt
due to several persons jointly, but not as copartners, it is evi-
dent that while the objections as to the adjustment of partner-
ship rights before cited do not apply, those pertaining to the
splitting of accounts are applicable; still, the balance of au-
thorities uphold the right to garnishment in such cases.'
When this question arose in Maine, the objection was raised
that if the debt was severed by garnishment, the debtor
would become liable to two sets of costs. The court, in
answer to this objection, said :." If he himself sever the cause
of action, by paying one of the joint creditors his proportion,
he is liable to the several creditor. So the law, in carrying
out its remedial provisions, may sever a contract, so as to sub-
ject the debtor to the liability of two suits upon one contract.
The death of one of two jointly contracting parties renders the
survivor and the administrator of the deceased party each
liable to a separate suit. So if the trustee (garnishee) be in-
debted to the principal in an entire sum, beyond the amount
wanted to satisfy the judgment recovered by the attaching
creditor, he will remain liable to the action of his principal for
the residue. The trustee (garnishee) is but a stake holder, and
the law indemnifies him for the expense of the suit, by allow-
ing him to deduct it, as a charge against the funds in his
hands. Notwithstanding, therefore, if the trustees are charged
in this case, an entire liability will be thereby divided into two
parts, in the judgment of the court this objection cannot pre-
vail." This position is combated by an equally plausible, and
to my
mind better considered opinion in the case of Hanson v.
Davis (19 N. H. 133). The latter decision receives partial
support in Hawes v. Waltham (18 Pick. 451), and Fairchild v.
Lampson (37 Vt. 407), but is not followed fully by any re-
ported case that has come within my research. Of course
where the liability is to two or more parties severally and not
jointly, the entire debt is due to each and may be made the
Whitney v. Monroe, 19 Me. 42;
Thorndike v. De Wolf, 6 Pick. 120.
Pick. 451.
Miller v. Richardson, 1 Mo. 810;
But see Hawes v. Waltham, 18
860
THE LAW OF ATTACHMENT.
Choses in Action-Character of Claim.
;-
subject of garnishment, the same as if due to a single indi-
vidual, the severance having been already effected by act of
the parties.'
§ 427.. Liability on commercial paper. The case of the maker
of a negotiable note or the acceptor of a bill of exchange
stands on a different footing from ordinary liabilities, where
the process is by garnishment instead of an attachment of the
paper itself as permitted in New York and several other states.
Thus, where A., being indebted to B., adjusts the same by a
note payable to his order, any third party holding the same for
a valuable consideration may enforce the same against A. with-
out regard to whether or not he had by voluntary act or under
garnishment proceedings previously paid the debt to B. or his
creditors. The rule that a garnishee could not be held liable
in such a case without a return of the paper or proof of its
maturity in the hands of the attachment debtor at the time of
the entry of judgment is seemingly so equitable and just as to
place it beyond the realm of questionable propositions, but it
is in fact charged with judicial criticisms and fiercely disputed.
There is, however, an undisputable principle relating to garnish-
ments, that by application to each particular case will save
the rights of the garnishee, to wit, that in order to become
charged by garnishment it must affirmatively appear that the
attachment debtor has an existing right of action against the
garnishee either due or to becoine due by the efflux of time.*
Following out this principle the courts have generally insisted
either upon proof that the note had not been transferred or
had become non-negotiable,' or that the garnishee should be
¹ Stone v. Dean, 5 N. H. 503; Parker v. Guillow, 10 N. H. 103:
Thompson v. Taylor, 13 Me. 420; Locket v. Child, 11 Ala. 640.
'Drake on Attachments, § 583; Porter v. Stevens, 9 Cush. 530;
Bridges v. North, 22 Ga. 52; Pierce v. Carleton, 12 Ill. 858; Ellicott v.
Smith, 2 Cranch (C. C.) 543; Wetherill . Flanagan, 2 Miles, 243; Estill
⚫. Goodloe, 6 La. An. 122; Lane v. Felt, Gray, 491; Richards v.
Stephenson, 99 Mass. 811; Karnes v. Pritchard, 86 Mo. 135.
* McBride v. Floyd, 2 Bail. (S. C.) 209; Inglehart v. Moore, 21 Tex.
501; Kapp v. Teel, 33 Tex. 811; Denham v. Pogue, 20 La. An. 195; Kim-
PROPERTY SUBJECT TO GARNISHMENT. 361
Chosen in Action-Character of Claim.
properly protected against its enforcement at the suit of a
bona fide holder by a deposit depositing the note in court' or
by other suitable means. In some states the courts absolutely
refuse to attach by this process the interest in negotiable
paper while current, claiming this to be the only safe rule.'
While some go still further and refuse the right in all cases
where the subject of garnishment is negotiable paper. On
the other hand, in Maryland,' Connecticut, Missouri,' Missis-
sippi' and Tennessee,' garnishment will always lie in such
cases under various rules suggestive of protection against sub-
sequent holders.
§ 428. Unnegotiable notes and assigned claims. Where a
note is not within the law merchant, commercial paper, either
through original defects such as being made payable to the
payee individually, or contingently, or in kind, or where it
subsequently has lost its negotiable character through maturity
or otherwise, a different rule prevails, as each successive as-
signee takes subject to all equities existing in favor of his pred-
ecessors. It follows that a maker who has no actual knowledge
of the transfer of such notes by the payee may safely pay to the
creditor of the latter under garnishment the amount payable
thereon, as such payment creates an equity that can be enforced
in subsequent proceedings upon the noteeither by the payee or
ball. Plant, 14 La. 511; Hubbard v. Williams, 1 Minn. 54; Cleneay v.
J. R. R. Co., 26 Ind. 875; Littlefield v. Hodge, 6 Mich. 326; Myers v.
Beeman, 9 Ired. 116; Shuler v. Bryson, 65 N. C. 201.
¹ Hille. Kroft, 29 Pa. St. 186; Kieffer v. Ehler, 18 Pa. St. 889.
* Yocum . White, 36 Iowa, 288; Hughes. Monty, 24 Iowa, 499.
'Hutchins •. Evans, 13 Vt. 541; Inglehart v. Moore, 21 Tex. 501;
Bassett v. Garthwaite, 22 Tex. 230.
* Greer o. Powell, 1 Bush (Ky.) 489; Hubbard v. Williams, 1 Minn.
54; Carson v. Allen, 2 Chand. (Wis.) 123; Maine Fire Ins. Co. v. Weeks,
7 Mass. 438; Perry v. Coates, 9 Mass. 537.
Stewart ⚫. West, 1 II. & J. 536; Somerville v. Brown, 5 Gill, 899.
• Enos. Tuttle, 8 Conn. 27; Culver v. Parish, 21 Conn. 408.
'Scott . Hill, 8 Mo. 88; Colcord v. Daggett, 18 Mo. 557.
• Yarborough •. Thompson, 3 Sm. & M. (Miss.) 291.
• Turner v. Armstrong, 9 Yerg. (Tenn.) 412.
362
THE LAW OF ATTACHMENT.
Choses in Action-Character of Claim.
:
his assignees, even though the latter were bona fide purchasers
without notice of the garnishment proceedings. If, prior to
judgment in garnishment, the garnishee has received notice of
the fact that the defendant in attachment has parted with his
interest, he is bound to bring the fact to the attention of the
court by plea or otherwise, and on failure to do so the judg-
ment therein will not protect him from suit on the note by
the holder thereof.' The same rule applies to all debts or
choses in action,' for, in respect to assignment, a negotiable
note stands on the same footing in law as an ordinary debt.
All choses in action are now assignable, although in many of
the common law states the suit has to be brought in the name
of the original creditor, either standing alone or "at the use of "
the assignee. This fact does not, however, affect the rule, the
action being, in fact, for the benefit of the real party in interest.
8 429. What constitutes an assignment. No particular form
of assignment is necessary to require the garnishee to take
notice that the title of the account does not remain in the at-
tachment debtor. It may be either verbal or in writing.
Either legal or equitable. Thus a good equitable assignment
¹ Comstock v. Farnum, 2 Mass. 96; Covert v. Nelson, 8 Blackf. 265;
Robinson v. Mitchell, 1 Har. 365; Dore . Dawson, 6 Ala. 712; Shetler
v. Thomas, 16 Ind. 224.
Cross. Haldeman, 15 Ark. 200; Foster v. Walker, 2 Ala. 177;
Crayton •. Clark, 11 Ala. 787; Colvin v. Rich, 8 Porter, 175; Smith v.
Blatchford, 2 Ind. 184; Wicks v. Branch Bank, 12 Ala. 594; Oldham
.. Ledbetter, 1 How. (Miss.) 43.
* Gibson v. Haggerty, 15 Abb. Pr. 406; Roy v. Baucus, 43 Barb.
810; Greentree v. Rosenstock, 84 N. Y. Super. Ct. 505; Lyman ♥.
Cartwright, 8 E. D. S. 117; Large v. Moore, 17 Iowa, 258; Kimbrough
v. Davis, 84 Ala. 583; McCubbin v. Atchison, 12 Kans. 166; Wakefield
v. Martin, 8 Mass. 558; Walling o. Miller, 15 Cal. 38; Adams . Filer,
7 Wis. 300; McKnight . Knisely, 25 Ind. 836; Leahey . Dugdale, 41
Mo. 517; Ormond v. Moye, 11 Ired. 564; Gates v. Kerby, 13 Mo. 157;
Funkhouser v. How. 24 Mo. 44.
Porter v. Bullard, 26 Me. 448; Waldron v. Baker, 4 E. D. Smith,
440; Sexton v. Fleet, 15 How. Pr. 106.
'Drake on Attachments, § 602; Smith v. Sterritt, 24 Mo. 261; Byar
v. Griffin, 81 Miss. 603.
PROPERTY SUBJECT TO GARNISHMENT. 363
Choses in Action—Character of Claim.
arises where the debtor and creditor verbally agree that the
money shall be paid to a third party,' or where the same thing
is expressed in writing by way of an accepted order by the
creditor upon the debtor in favor of a third party. The
person entitled by agreement to the payment becomes in
equity the assignee of the debt, within the foregoing rule.'
In New York state the courts hold that it is not usually neces-
sary that the order should be accepted by the debtor. As the
creditor is permitted to transfer a chose in action in the ordi-
nary way without the assent of the debtor, his concurrence is
not required where the assignment is effected in equity by
virtue of an order upon the fund. The debtor in such a case
is bound on a mere notification of the fact to retain so much
of the payment as is named in the draft as a special deposit to
meet the same at maturity. The order or draft must be upon
a particular fund to constitute an equitable assignment. Hence
an ordinary draft or bill of exchange will not, per se, amount
to a transfer of the funds of the drawer in the hands of the
drawee, and it has no effect upon any part thereof until by
acceptance the fund has become charged with the payment
thereof. A distinction has been observed by the courts be-
¹ Black v. Paul, 10 Mo. 103.
* Colt v. Ives, 81 Conn. 25; Legro v. Staples, 16 Me. 252; Morton v.
Naylor, 1 Hill, 583; McMenomy . Ferrers, 8 Johns. 71; Vreeland v.
Blunt, 6 Barb. 182; Davis v. Taylor, 4 Martin N. S. 184; Brazier ♥.
Chappell, 2 Brev. 107; Lamkin o. Phillips, 9 Port. 98; Dibble v. Gaston,
R. M. Charltou, 444.
• Ireland v. Smith, 1 Barb. 419; Dickenson v. Phillips, 1 Barb. 454;
Lewis v. Berry, 64 Barb. 598; Young Stone Dressing Co. v. St. James'
Church, 61 Barb. 489; Hall v. Buffalo, 1 Keyes, 193 (S. C., 2 Abb. Dec.
301); Shuttleworth v. Bruce, 7 Rob. 160; Lowery v. Steward, 25 N. Y.
239.
Phillips . Stagg, 2 Edw. Ch. 108; Harrison v. Williamson, Id.
430; Finlay v. American Exchange Bank, 11 How. Pr. 468; Tyler .
Gould, 48 N. Y. 682; Noe v. Christie, 51 N. Y. 270; Shaver v. W. U.
Tel. Co., 57 N. Y. 459; Hutter v. Elwanger, 4 Lans. 8; Lunt v. Bank of
North America, 49 Barb. 221; U. S. ♥. Vaughan, 3 Binn. 394; Pellman
v. Hart, 1 Pa. St. 263; Nesmoth v. Dunn, 8 W. & S. 9.
Luff . Pope, 5 Hill, 413; N. Y. & Va. S. S. Bank ⚫. Gibson, 5
364
THE LAW OF ATTACHMENT.
Choses in Action-Character of Claim.
tween the effect of a draft covering the whole of a specified
fund, and that which affects only a portion of it, the decisions
holding that in the former case an acceptance is not necessary to
create a valid, equitable assignment,' while in the latter case an
assignment pro tanto is not created until the drawee accepts
the draft either expressly or by implication of law, founded on
general usage or the customary dealings of the parties."
§ 430. Same-exceptional cases. A covenant by a debtor to
pay certain debts out of a designated fund when received by
him does not operate as an equitable assignment of it. Neither
does a direction by a depositor to his banker to credit certain
balances to his children. Nor will a draft on a savings bank
operate as an assignment of moneys thereafter deposited.' A
reservation in a builder's contract of a fund equal to twenty
per cent. for the payment of the laborers is not such an assign-
ment thereof as to give the latter a claim upon the reserved
fund enforcible against the employer. And it may be stated
generally that a mere direction to collect money and pay over
to a third party, being revocable by the creditor, is not such a sur-
render of control over the fund as will amount to an equitable
assignment and take the property out of the reach of attach-
ing creditors. On the other hand an equitable assignment
occurs from a direction to get security for certain protested notes
Duer, 574; Winter v. Drury, 5 N. Y. 525; Cowperthwaite . Sheffield,
3 N. Y. 243; Chapman . White, 6 N. Y. 412; Mandeville . Welch, 5
Wheaton, 277; Wilson . Carson, 12 Md. 54.
¹ Drake on Attachments, 611; McMenomy . Ferrers, 3 Johns. 71;
Macomber v. Doane, 2 Allen, 541; Kingman v. Perkins, 105 Mass. 111
* Cowperthwaite v. Sheffield, 3 N. Y. 243 (1 Sandf. 46); Poydras v.
Delaware, 13 La. 98; Gibson v. Cooke, 20 Pick. 15.
*Rogers v. Hosack, 18 Wend. 319; Hawley v. Ross, 7 Paige, 103;
Richardson v. Rust, 9 Id. 243.
• Geary . Page, 9 Bos. 290.
Fordred v. Seamans' Savings Bank, 10 Abb. N. S. 425; Cusnman v.
Haynes, 20 Pick. 132.
• Wells v. Williams, 39 Barb, 567.
'Kelly. Roberts, 40 N. Y. 432; Baker v. Moody, 1 Ala. 815; Briggs
♥. Block, 18 Mo. 281; People v. Johnson 14 Ill. 842; Connelly ». Harri-
son, 16 La. An. 41; Dolsen v. Brown, 18 La. An. 551..
PROPERTY SUBJECT TO GARNISHMENT. 365
Choses in Action-Character of Claim.
and turn them over to a creditor,' or a delivery of notes by A.
to B. with instructions to collect the same and pay a debt due
from the former to the latter, or an order on an attorney to
collect a note and pay the proceeds to a third person.' But
it seems that to become operative a draft or order must be
given for a valuable consideration. Hence an agreement be-
tween debtor and creditor not founded on a new consideration,
that the former shall pay the amount of his debt to a third
person, vests no interest in the latter before acceptance by him,
it is revocable by the creditor, and the debt may be attached as
his property. To constitute a valid transfer either in law or
equity the owner must surrender all control over the thing
assigned. In respect to a particular debt or fund there must
not only be an agreement to pay out of it, but an appropria-
tion thereof by some act which will authorize a payment
directly to the assignee without any further intervention of
the debtor."
8 431. Effect of a fraudulent assignment. The rule in New
York state seems to be well settled that choses in action
which the debtor has transferred in fraud of creditors cannot
be attached. The only remedy in such a case is in supple-
mentary proceedings or by creditors' bill. The courts in this
respect mark a distinction between tangible property and
choses in action, as the former may be attached as the prop-
erty of the assignor and the bona fides of the transfer be im-
peached on the trial. It is doubtful whether this rule re-
ceives the concurrence of the courts in other states.' A debt
?
¹ Nicolet . Pillot, 24 Wend. 240.
* Canfield v. Monger, 12 Johns. 346.
*Hamilton . McCoun, 2 Hall, 522.
Alger v. Scott, 54 N. Y. 14.
'Kelly. Roberts, 40 N. Y. 232.
Rupp . Blanchard, 34 Barb. 627; Gibson v. Stone, 43 Barb. 285.
Hoyt v. Story, 8 Barb. 262.
• Thurber v. Blanck, 50 N. Y. 80; Greenleaf v. Mumford, 50 Barb.
543; Launing v. Streeter 57 Barb. 33; but see Mechanics' & Traders'
Bank . Dakin, 51 N. Y. 519.
'Sec Giddings . Coleman, 12 N. II. 153; King v. Gorham, 4 Me.
866
THE LAW OF ATTACHMENT.
•
Choses in Action—Character of Claim.
having no situs in law the assignment would naturally be
governed by the law of the state where the creditor is
domiciled, but an assignment being a contract, the rule pre-
dominates that contracts are to be construed according to the
lex loci contractu.
8 432. Notice of assignment. Where the chose in action is
evidenced by an instrument in writing in the hands of the
creditor a legal assignment may be made without the assent
or knowledge of the debtor, but where it exists in parol or in
the form of an open account or book debt, the transfer is not
legally complete until he has received notice of the fact. If
notice has not been given him in such a case prior to the re-
covery of judgment in garnishment, the debtor will be pro-
tected by such judgment although the claim may have been
previously sold for value to a third party. As between the
parties to the assignment the transfer may in all cases be com-
plete without any notice whatever. It is only as to the pre-
servation of equities that there is an additional requirement
as to the debtor's knowledge.' If a debt be attached after
notice of an assignment of it a payment to the sheriff on an
execution issued in the attachment suit, will not discharge the
debtor; he should call on the parties to interplead or other-
wise seek the protection of the court.“
492, and Hooper v. Hills, 9 Pick. 435, holding that an assignment of
debts may be disregarded if not made in good faith; see also Enos v.
Tuttle, 3 Conn. 27; Green v. Doughty, 6 N. HI. 572; Kesler v. St. John,
22 Iowa, 565; Marsh v. Davis, 24 Vt. 8Q3.
'Noble. Smith, 6 R. I. 446; Martin . Potter, 11 Gray, 87; Van
Buskirk, . Hartford Fire Ins. Co., 14 Conn. 588; Daniels . Willard,
16 Pick. 86; Russell e. Tunno, 11 Rich. 803.
* See Drake on Attachment, § 607; Richards v. Griggs, 16 Mo. 416;
Tudor v. Perkins, 8 Day, 364; McCoid v. Beatty, 12 Iowa, 299; Dodd
v. Brott, 1 Minn. 270.
• Noyes v. Brown, 83 Vt. 481; Hutchins . Watts, 85 Vt. 800; Curle
. St. Louis Perpet. Ins. Co., 12 Mo. 578.
• Robinson v. Weeks, 6 How. Pr. 161; Richardson v. Ainsworth, 20
How. Pr. 521; Greentree v. Rosenstock, 2 J. & Sp, 595.
*
PRACTICE.
367
The Affidavits.
CHAPTER XXIII.
THE AFFIDAVITS.
SECTION 433. Having considered the necessary elements
of a valid attachment, to wit: "The cause of action," "The
grounds of attachment," The necessary parties" and "The
property applicable thereto," we come now to the enforce-
ment of this right in the manuer provided by law. While
the general principles applicable to attachments are practically
the same in the different states, each locality has special
rules relating to the practice in such cases. The attempt
to harmonize these rules or to give in detail the practice in
each state would not only lead to bewilderment but would
be of less value than local statutes and digests. I have
concluded therefore to take the statutes of a single state
(New York) and cite in aid thereof all the decisions of other
states applicable thereto. By comparison with the statutes
and decisions in any other locality, all the light will be thrown
upon the subject possible, under our diverse system of state
laws.
§ 434. Necessity and nature of an affidavit. The re-
quirement of an affidavit is a jurisdictional one. Section 636
of the code of civil procedure provides that "to entitle the
plaintiff to such a warrant, he must show by affidavit to the
satisfaction of the judge granting the same," etc. It is evident
therefore, that a warrant granted without an affidavit is coram
non judice and void.' But it seems that it is sufficient, if, in
¹ Zerega v. Benoist, 7 Rob. 199; Miller v. Brinkerhoff, 4 Denio, 118;
Staples v. Fairchild, 8 N. Y. 41; Furman v. Walter, 13 How. 849; Skiff
v. Stewart, 89 How. Pr. 885; Inman e. Allport, 65 Ill. 540.
368
THE LAW OF ATTACHMENT.
The Affidavits,
the form technically known as a "petition," provided it is
sworn to on knowledge and contains the necessary averments.
Subdivision 11 of § 3343 provides that the word "affidavit "
includes a verified pleading in an action, or a verified petition
or answer in a special proceeding. An attachment is not a
special proceeding but is a "provisional remedy" in an action.
It is evident, therefore, that a complaint verified on knowledge
and containing a statement of facts sufficient in form to con-
stitute legal proof of the statutory requirements as distinguished
from a mere averment thereof would take the place of an
ordinary affidavit. But in practice it will be found necessary
to have a separate affidavit, as a pleading containing the evi-
dence of a fact instead of the fact itself, would be redundant,
and all the statements as to the ground of attachment would
be superfluous and could be stricken out on motion. It is
proper, however, to use a verified complaint as a statement of
the cause of action, and, if annexed to the affidavit and the
verification is on knowledge and made by one who presump-
tively has knowledge, or, if on information and belief and the
affidavit alleges the facts therein stated to be true, it will suf-
ficiently answer so much of the requirements of the statutes as
relates to the statement of a cause of action against the
defendant.
་་
§ 435. Affidavits must legally prove the jurisdictional facts.
From the fact that the plaintiff must show to the satisfac-
tion of the judge certain things, it is evident that the judge
acts judicially in granting the warrant; he cannot so act in
the absence of legal evidence. The same rules should be
applied to the allegations in the affidavits as are applicable to
the examination of a witness on the stand. Statements of fact
made by a person who does not show that he has knowledge
of the facts are of little more value than the "belief” of a
person who fails to show how his belief was acquired.
The
¹ Shaffer v. Sundwall, 83 Iowa 579; Scott v. Donegly, 17 B. Monr.
821.
• See Crandall v. McKay, 6 Hun, 483.
PRACTICE.
369
The Affidavits.
affidavits should not only be explicit but convincing, hence the
character of the evidence should be such that the officer hear-
ing the application may be satisfied judicially as well as per-
sonally. In other words he must be satisfied on legal proof.
This rule means this, and only this, that the allegatious if made
upon knowledge should be so drawn as to convince the judge
that the affiant is in a condition to have knowledge thereof,
and if drawn on information and belief the evidence being
secondary, it must appear why primary evidence was not prac-
ticable, and the information must be fully stated so that the
officer to whom the application is made may have the oppor-
tunity to form his own belief.
§ 436. Proof of fact and intent. In regard to the form
of proof it may be stated that where the statute calls for evi-
dence of a fact which is disconnected with any intent on the
part of the defendant, a simple statement of that fact by a
person having knowledge thereof is sufficient. Such an allega-
tion is "proof" in itself. Under this head comes the state-
ment of the cause of action, the amount the plaintiff is entitled
to recover, or the fact that the defendant is a foreign corpora-
tion or non-resident.' But where the intent of the debtor
must be shown, as in the case of absconding, concealment or
fraudulent disposition, the allegation thereof either on knowl.
edge or information, is not evidence, as it is patent that no
person can have more than an opinion as to the designs of
another. If the affiant has come to such a conclusion he
may state that fact, and then add, as in the case of any other
allegation of belief, the grounds upon which his suspicions are
founded, strengthening his own statement by the allegations
of others, if necessary, and thus erecting a structure of circum-
stantial proof to be presented to the judge for the purpose of
¹ See Hill v. Bond, 22 How. 272; Mott v. Lawrence, 17 How.
559; St. Amant v. Beixcedon, 8 Sandf. 703; Woodhouse . Todd, 10 W.
Dig. 28.
• Matter of Brown, 21 Wend. 316.
370
THE LAW OF ATTACHMENT.
The Affidavits.
procuring, by a similar belief on his part a judicial determina-
tion in favor of the issuing of an attachment.
§ 437. How and by whom facts should be proven. Proceed-
ing from general statement to details of practice, it may be
remarked that the affidavit should be made by the person
having presumptively the best knowledge of the facts, and
when this rule is departed from, the reasons therefor should
be given. Thus the cause of action and the amount due should
be stated by the plaintiff, or by one of several plaintiffs, other-
wise the affiant should show that the facts are peculiarly
within his personal knowledge.' If, from the relation of the
affiant to the parties or the subject matter in issue, it being
apparent that he has personal knowledge of the alleged trans-
actions; it is not necessary to allege or prove that he has such
knowledge; in fact the courts have gone so far as to permit
the allegation to stand as absolute proof unless it is obvious
that his knowledge must have been derivative and not
personal, as the law will not infer that matters positively
sworn to were not within the personal knowledge of the
affiant. But where it is apparent that he could not have had
personal knowledge thereof, and the grounds of his belief are
not stated, the affidavit will be held insufficient though stated
in positive terms.' Another defect to be guarded against is
the statement of conclusions instead of facts. This can be
avoided by applying the ordinary rules applicable to pleadings
in this respect. Examples of this objectionable feature will be
given hereafter.
1 Lampkin. Douglass, 10 Abb. N. C. 842 (Reversed on other
grounds, see 15 W. Dig. 814).
So held on a motion to vacate an order of arrest on plaintiff's
papers. Balloubey v. Cadot, 8 Abb. N. S. 122; Pierson v. Freeman, 77
N. Y. 589; and sce Brooklyn Daily Union . Hayward, 11 Abb. N. S.
235.
O'Reilly . Freel, 87 How. Pr. 252. S. C. in arrest cases, Moore
v. Calvert, 9 How. Pr. 474.
PRACTICE.
371
The Affidavits.
§ 438. Statements made on information and belief. Although
there is no direct authority therefor in section 636, the courts
hold that affidavits which cannot, from the nature of the case,
be made on knowledge, may be made on information and belief,
provided the source of the information is given, and a sufficient
excuse is presented for not procuring the affidavit of the in-
formant.' The informant should be so clearly identified that
the affiant could be held for perjury in case the alleged infor-
mation was never given, otherwise there is an open avenue for
fraudulent attachments founded on information and belief. An
affidavit on information and belief that fails to give all these
additional facts is fatally defective. Thus where the name of
the informant is given, but no reason is stated why he does
not make an affidavit," or his name is not stated, or if it fails
to connect the person making the statement with the defend-
ant, or show that he was authorized or qualified to speak for
him, the affidavit is insufficient to support an attachment. It
is mere hearsay."
$439. Same. Sufficiency of the excuse for not presenting
affidavit of informant. Where the informant is either the
defendant or bears such relationship to him or to his interest
¹ Bennett . Edwards, 27 Hun, 352; St. Amant v. De Beixcedon, 8
Sandf. 703.
• Claflin v. Baere, 57 How. 78; Yates v. North, 44 N. Y. 271; Hill v·
Bond, 22 How. 272; In re Haynes, 18 Wend. 611; Smith. Luce, 14
Wend. 287.
• Yates v. North, 44 N. Y. 27; Woodhouse . Todd, 10 W. Dig. 28;
Steuben Co. Bank v. Alberger, 78 N. Y. 252; Neal v. Sachs, 15 W. Dig.
476.
• Brewer o. Tucker, 13 Abb. 76.
The rule is the same in the case of an affidavit to obtain an order of
afrest, the courts holding that it should appear how the information was
derived, the terms as nearly as practicable in which it was communi-
cated, and why the person making the communication did not himself
make the affidavit. Bell v. Mali, 11 How. 254; Blason v. Bruno, 21 How.
112; De Nierth v. Sidner, 25 How. 419; Satow v. Reisenberger, 25 How.
104; Dreyfus v. Otis, 51 How. 405;
• Evans v. Warner, 21 Hun, 574.
372
THE LAW OF ATTACHMENT.
The Affidavits.
as to cast a presumption against his giving an affidavit for his
opponent, a refusal to give the same need not be shown, as
the rule will not apply. Of course a refusal is unnecessary,
also, where it is shown that the informant is away and will not
return in time to make an affidavit, or, where any other plans-
ible reason is shown to exist for not procuring the same. But
where no such reason exists it is necessary to show a request
and refusal to make an affidavit or facts equivalent thereto. This
rule applies as well where the applicant seeks to use the affi-
davit made by a person in another proceeding. Such an
affidavit is, as to the case at bar, simply hearsay, hence attach-
ing a copy thereof and stating that the affidavit believes the same
to be true is as defective as a simple repetition of the state-
ment or information received direct from him. Some reason
must be shown why the affidavit was not made in the appli-
cant's action or it will be disregarded.' This being the rule, it
is evident that the statement that certain facts are contained
in a certain affidavit, without stating that the same is on file or
without attaching a copy thereof, is clearly insufficient."
$440. Same. Not necessary to procure compulsory deposition.
Section 885 of the Code of Civil Procedure provides, that
where a person refuses to make a voluntary affidavit to be used
upon a motion, and it is shown that he has knowledge of cer-
tain facts beneficial to the applicant therein, he may be
compelled, by an order of the court, to appear before a referee
and submit to an examination. But this provision was not in-
tended to, and does not require the applicant to procure a
compulsory deposition in such a case. Such a rule would, in
most cases, defeat the remedy that the statute songht to afford.
The creditor often has but short notice of the intended fraud.
The attachment usually has to be procured immediately to be
beneficial; hence if the applicant was required to resort to the
proceedings designated in section 885, the debtor might get
notice thereof and succeed in securely disposing of the prop-
¹ Wilmerding v. Cunningham, Gen. T. 1st Dept. May, 1888.
'Fitzgerald. Belden, 49 How. 225.
•
PRACTICE.
373
The Affidavits.
erty before an attachment could be obtained. For this reason,
among others, this section is construed as permissive but not
obligatory.'
8 441. Formal statements. The title, venue and jurat.
The affidavit should be prefixed by the title of the action in
which the application is made. But this cannot be said to be
essential, if identifying facts appear elsewhere therein, as an
affidavit without a title or with a defective title is as valid and
effectual for every purpose as if duly entitled, if it intelligibly
refers to the action in which it is made. The title of an affidavit
embraces the name of the court as well as of the parties; hence,
where the opposite party has not been misled to his injury, an
error in this respect is immaterial.' The omission of a jurat in
the affidavit to procure the entry of a judgment has been held to
be an amendable error,' though I would not recommend the
experiment in jurisdictional proceedings to procure an attach-
ment. The venue has always been held an essential part of an
affidavit, and the omission thereof has been held fatal, although
Judge McAdam has laid down the doctrine that the defect may
be cured by amendment.' This experiment, also, is not one to
be commended in attachment cases.
8 442. Same. Designating the affiant.
When a paper
purporting to be an affidavit in a judicial proceeding, contains
a proper venue and jurat and is signed by an officer having
authority to administer oaths, the omission of the name of
the deponent in the body of the instrument, is not, as a gen-
eral rule a fatal defect, as an officer may receive and give cre-
¹ Allen v. Meyer, 73 N. Y. 1; Bennett v. Edwards, 15 Weekly Dig.
250.
§ 728 Code of Civil Procedure.
• Bowman v. Sheldon, 5 Sandf. 657; Blake . Locy, 6 How. 108;
People v. Townsend, 6 How. 178.
• Fawcett v. Vary, 59 N. Y. 597.
• Cook v. Staats, 18 Barb. 407.
People v. De Camp, 13 Hun, 378.
▾ Clement v. Ferenback, 1 City Ct. R. 57.
374
THE LAW OF ATTACHMENT.
The Affidavits.
1
dence to any paper upon which an indictment for perjury would
lie in the case of its falsity. But an exception to the rule may
lie where the affidavit is required to be made by one acting in
a special capacity. It should there state the name of the affiant
and the capacity in which he acts. This exception, rather
than the rule, is applicable in an affidavit for an attachment, as
it is necessary for the officer to know whether the affiant occu-
pies such a position as to entitle him to credit as one convers-
ant with the facts affirmed by him. The mere omission of the
name of the affiant from the body of the affidavit is not a radi-
cal defect if the omission is supplied by giving the title of the
canse and stating that he was one of the plaintiffs; and he sub-
scribed and swore to the instrument in due form.'
§ 443. Statement of the cause of action. The warrant may
be granted to accompany the summons, or at any time after the
cominencement of the action.' But it is not necessary in case
the summons does not accompany the attachment papers to
show by affidavit the commencement of an action. It is suf-
ficient if it was in fact commenced, although it is customary,
and possibly the better practice, to allege the commencement
of the action.*
The cause of action so commenced must be set forth in the
affidavit as fully as in a pleading. If the complaint has been
drawn it is well to attach the same to the affidavit, as a state-
ment of the cause of action. If verified on knowledge or prop-
erly averred in the affidavit to be true, this will save the
separate allegation therein of the cause of action. It is a
People v. Sutherland, 81 N. Y. 1.
Taylor v. Troncoso, 76 N. Y. 599.
§ 638 Code of Civil Procedure, Webb . Bailey, 54 N. Y. 164.
• Lawton . Riel, 84 How. 465; Stevens v. Middleton, 26 Hun, 470;
Pickhardt v. Antony, 27 Hun, 269.
• See Wallace v. Castle, 08 N. Y. 370; Mayor v. Genet, 4 Hun, 487
(S. C. 63 N. Y. 646); Conkling . Dutcher, 1 Code R. N. 8. 49.
• Crandall v. McKaye, 6 Hun, 483. S. P. in order of arrest, Palmer
♥. Hussey, 50 N. Y. 647; Brady v. Bissell, 1 Abb. 76.
PRACTICE.
875
•
The Affidavits.
well settled rule of law that to entitle a party to make a
seizure by attachment, before his right to appropriate the
defendants property has been established by evidence, reason-
able and satisfactory proof is required. A plain case must be
made out, and where it is not, then it necessarily follows that
the attachment must be set aside. This rule imposes no hard-
ship upon the applicant for an attachment, for he is allowed to
make out his case by his own unsupported oath; and where
the facts are such as will warrant him in making the statements
required for this purpose, he should be obliged carefully and
intelligently to embody them in the affidavit. In the case of
Smith v. Davis (29 Hun, 308), the affidavit for attachment
was as follows: "Robert T. Smith, being duly sworn, doth
depose and say that he is one of the plaintiffs composing the
firm of Smith & Wicks; that the above named defendant is
indebted to the above named plaintiff in the sum of $11,398.65
over and above any counter-claims oroffsets, and that the grounds
for the plaintiffs' claim are as follows, to wit: for goods, wares
and merchandise sold and delivered to the amount of said sum of
$11,398.65, the whole amount whereof is now due and owing."
Justice Daniels, in delivering the opinion of the court as to
the sufficiency of the affidavit on this point, said: "By this
affidavit no demand in favor of the plaintiffs and against the
defendant was established. But whatever might have existed
was stated to be an indebtedness "to the above-named plain-
tiff,” who was the person alone who made the affidavit, and
this indebtedness was stated to have been created for goods,
etc., sold and delivered to the amount of $11,398.65, the whole
of which was then due and owing. The statements, being in-
sufficient to establish a cause of action in favor of the plaintiffs,
were likewise insufficient to present a cause of action in favor
of the one of them who made the affidavit, for it was not stated
that either the plaintiffs, or he himself had sold and delivered
the goods, or that such sale had been made to the defendant
in the action. All the facts may very well be true, and still
the defendant not be liable either to the plaintiffs, or to the
plaintiff making the affidavit, to the amount of a single dollar.
378
THE LAW OF ATTACHMENT.
The Affidavits,
To authorize an attachment the provisions of the code require
a cause of action to be shown in the affidavit, and that which
was made in this case wholly failed to comply with that require-
ment. The assertion of the indebtedness itself was a mere con-
clusion, which the facts afterwards related, in no manner tended
to sustain, for nothing was inserted in the affidavit from which
it could be inferred that it was intended to be stated that the
goods had been sold to, or even on the credit or the liability
of the defendant in any form. An indictment upon this affi-
davit accusing the person making it of falsely swearing that
the goods had been sold to, or on the credit of the defendant
could not for a moment be sustained, for no such averment,
by the most liberal implication, can be constructively derived
from it." The facts constituting the liability must be set forth
in full,' and such facts must be stated directly and not by way
of recital.'
¹ Manton v. Poole, 4 Hun, 638; Pomeroy v. Moss, 15 W. Dig. 25.
* Manton v. Poole, 4 Hun, 638; Fitzgerald v. Belden, 49 How. 225;
see New York v. Genet, 63 N. Y. 646. In the case of Pomeroy v.
Ricketts (27 Hun, 242), the cause of action was stated as follows:
*
"The defendants owe my firm one thousand eight hundred and eight
dollars over and above all counter-claims known to plaintiffs and to me,
for goods, wares and merchandise, sold and delivered by my firm to the
defendants, who are copartners, and who were such during all the times
herein mentioned, between January 8th, 1880, and June 30th, 1880, no
part has been paid." The General Term (First Dept.) held that this
"did not show the existence of a cause of action in favor of the plaint-
iff. It simply contained a recital from which the plaintiff making the
affidavit concluded that such a right of action did exist.
This
was not a statement that the plaintiffs in fact had sold goods, wares or
merchandise to the defendants, of the value of the sum mentioned, or
for which they had agreed to pay that sum. But it was of the most
general character, stating no time, amount or value, and from that the
inference was derived, not supported by a statement of any facts or
circumstances, that the defendants owed this amount to the plaintiffs.
The case in this respect differs from that bf Kiefer o. Webster (6 Hun,
526), where it was stated that the defendants had promised to pay the
amount claimed, and from which the inference could properly be drawn,
that the goods sold and delivered were sufficient in amount to sustain
the promise to pay the sum of money included in it. The statement
PRACTICE.
877-
The Affidavits.
8 444.
Maturity of claim. It is not necessary to negative
that goods were sold on credit. If the liability is shown, the
fact that the claim is not due is purely a matter of defense.'
And where the credit has not expired, but the creditor intends
to rely on fraud in the purchase to vitiate it, he need not
allege the fraud. In case the defense is raised that the claim
is not due, the plaintiff may meet the same on the trial by evi-
dence of fraud, in procuring the credit, without any allegation
to that effect in the pleadings. But to constitute a “breach of
contract,” claim must appear to have been dishonored, in case
the contrary presumption might arise from the facts presented.
Thus in Reilly v. Sisson (18 Weekly Digest, 382), decided by
the first department, January 25th, 1884; the affidavit upon
which the attachment was obtained, alleged in substance that
defendant was indebted to plaintiff in $6,000 over and above
all counter-claims, and that such indebtedness arises upon the
following facts, that at sundry times, since April 1st, 1883,
and up to and including this date, to wit: (the date of the affi-
davit and date of procuring attachment), the plaintiff loaned
defendant various sums of money amounting to $6,000, which
he agreed to repay, and that no part has been repaid, and
defendant still neglects to repay the same; that suit has been
this day commenced. The court held that the attachment was
properly vacated: stating in substance, that it appears by the
moving papers, that a portion of the loan for which suit was
brought was loaned and advanced on the day suit was brought.
Nothing appears as to when these loans were to be repaid.
The court cannot presume, in the absence of any statement to
that effect, that the loan made on the day suit was brought
was to be repaid on that day. No demand is alleged. We
think no breach of contract by defendant was shown, and
plaintiff's right to an attachment was not made out with such
contained in the present affidavit falls very far below the standard that
was then held to be sufficient, and it does not comply with what this
section of the code has rendered necessary to justify the issuing of an
attachment."
1 Keifer v. Webster, 6 Hun, 526.
378
THE LAW OF ATTACHMENT.
The Affidavits,
clearness as the law required. In the case of Smadbeck v.
Sisson, 66 Ilow. 220, Justice Lawrence at Special Term states
in a motion to vacate the attachment, on the ground that no
breach of contract was shown, as follows: "It also appears
from the affidavit that the work, labor and services were per-
formed during a period from September 1st, 1882, to the time
of the commencement of this action. This does not seem to
me to show that there was a breach of their contract on the
part of the defendants. No demand is alleged to have been
made upon the defendants, nor any refusal to pay after such
demand. No fact is stated from which the court can see that
there has been a breach of contract. The affidavit literally
read means, that the suit was commenced simultaneously with
the performance of the work, etc. The only evidence of the
alleged breach is the plaintiffs own assertion of it. Besides,
the defendants, where no time is specified as to the performance
of a contract, are entitled to a reasonable time within which to
perform. If the affidavit of the plaintiff is true, there was no
instant of time between the completion of the work and the
commencement of the action."
§ 445. Statement of the amount due. Section 635 provides
that "if the action is to recover damages for breach of a con-
tract, the affidavit must show that the plaintiff is entitled to
recover a sum stated therein, over and above all counter-claims
known to him." A failure to comply with the statute in this
respect renders an attachment void ab initio.' Two questions
have arisen under this clause, the first relating to the person
making the affidavit, and the second to the form of the allega-
tion. In regard to the first, it may be stated that the only
safe method is to have so much of the application for a warrant,
as specifies the cause of action and the amount due, and that
designates the ground of attachment, made by one of the
$
1
Lyon v. Blakesly, 19 Hun, 299; Donnell v. Williams, 21 Hun, 216;
Gray v. Giles, 2 Law Bul. 12; Dickey v. Coe, 13 Weekly Dig. 818; Tay-
lor v. Reed, 54 How. 27; Trow's Printing, etc. Co. v. Hart, 60 How.
190.
PRACTICE.
379
The Affidavits,
plaintiffs. Then the proof to sustain the charge alleged as the
grounds for the warrant may be supplied by third parties. It
will be noticed that this requirement calls for the knowledge
of the plaintiffs, hence an allegation by another person on this
point must, necessarily, be hearsay. If the provision simply
referred to a discount or set-off growing out of the cause of
action, any one having personal knowledge thereof, as, for
instance, the salesman who sold the goods and knew their
character, and the conditions under which they were sold might
well testify in relation thereto, but it calls for "counter-claims'
and may refer to a distinct and separate claim against the plaint-
iffs. In case the affidavit is made by an agent, this theory of
the case would require him to show that he had exclusive
knowledge on the subject. This position was taken by Justice
Westbrook at special term, in the case of Lampkin v. Doug-
lass (10 Abb. N. C. 342), but was overruled by the general
term (27 Hun, 517), by a decision which goes farther in the
other direction than any other reported case, and farther in my
opinion than is justified by the strict construction, otherwise
invariably placed upon this clause."
1 That the provision should be strictly observed, see Trow's Printing,
etc. Co. v. Hart, 9 Daly, 413 (aff'd, see 85 N. Y. 500); Lyon v. Blakesly,
19 Hun, 299; Ruppert a Haug, 87 N. Y. 142. In the case of Lampkin
v. Douglass, the affidavit, which was made by an agent of the plaintiffs
stated, “that a cause of action exists in favor of the plaintiffs against the
defendant, for which said action is commenced; and that the amount of
his claim in said action is $1,216.42, with interest from the 9th day of
January, 1882, over and above all discounts and set-offs; and that the
grounds of said claim and cause of action are, that the defendant is in-
debted to the plaintiffs for goods, wares and merchandise sold," etc. It
then stated facts, in detail, showing the existence of the indebtedness,
and of the other facts required by the code to authorize an attachment
to be issued.
The general term sustained the attachment on appeal on the follow-
ing grounds:
"An attachment against property under the code is auxiliary to an
action. It is not the begining of a distinct and special proceeding. We
think, therefore, that papers should not be judged with that strictness
which is used when they form the sole basis of jurisdiction.
380
THE LAW OF ATTACHMENT.
The Affidavits.
In the case of Murray v. Hankin, 30 Hun, 37, Justice Brady
in delivering the prevailing opinion states: "Although the
code only requires the necessary facts to be shown by affidavit
to the satisfaction of the judge granting the attachment, and
although the affidavit, may therefore, undoubtedly, be made
by an agent who has the necessary knowledge to make the
alleged allegations, nevertheless, when the allegations are made,
they must be in conformity with the statute, and particularly
in a case when the attachment is granted upon a variety of
claims, in part originating with the plaintiff and in part
acquired by him by assignment. The statute requires, among
other things, that the plaintiff shall show, either by his own
"The words 'known to him? are intended rather in relief of the
conscience of the affiant. One might hesitate to state positively that the
amount claimed was due to him, over and above all counter-claims, since
some counter-claims might exist, of which the affiant had no knowledge.
The omission of these words, therefore, strengthens rather than weakens
the affidavit. Nor can we adopt a construction which would render it
necessary that the affidavit should always be made by the plaintiff, and
could not be made by an agent. We must consider that the intent is to
satisfy the court that the amount claimed is really owing. Sometimes
the agent of the plaintiff may know more of the matter than the plaintiff
himself.
"We think that it is not necessary that the precise words of the code
should be used, if words are used which are equivalent. Proof is to be
made, to the satisfaction of the judge, of such and such facts. If there
is evidence on which he may lawfully be satisfied or the truth of the
matter required to be shown, that is enough. (Ruppert v. Hall, 1 Civ.
Pro. Rep. 411, 417.)
"Now, without discussing at any length the precise etymological
meaning of the words 'discounts and set-offs,' we think that, in ordi-
nary use, they have such meaning that a judge might feel satisfied by
their use that there were no counter-claims to the plaintiffs' demand.
Especially when, as in this case, the affiant sets forth, in detail, the facts
and circumstances in regard to the transactions between the parties.
"The object of this part of the affidavit'is to show that the plaintiff
has, so far as he knows, a valid claim against the defendant, to the ex-
tent for which he asks an attachment.
"We think that enough was shown to justify the issue of the attach-
ment, and that it should have been allowed to stand.”
•
PRACTICE.
381
The Affidavits,
affidavit, or by that of somebody in his behalf, conversant with
the facts, that there are no counter-claims known to him, i. c.,
known to him, the plaintiff. The asseveration by the agent
that there be no counter-claims known to him might be made
with very great propriety; and hence the necessity of the
information which is exacted by the statute, non constat, but
that in fact this case there be a counter-claim, some one or
more of the numerous items set forth, of which the plaintiff
had knowledge, but of which the agent had no knowledge. If
the allegation of the agent in his affidavit had been that the
sum demanded was due over and above all counter-claims,
discounts and set-offs, existing in favor of the defendant to the
knowledge of the plaintiff, the affidavit would have been suf-
ficient. But the allegation is, that it was due over and above
all counter-claims, discounts and set-offs, existing in favor of
the defendants, to the knowledge of the deponent," i. e., to the
knowledge of the agent, as already suggested. Inasmuch as
in this case an attachment was demanded for a sum of money,
which rested partly upon merchandise sold by the plaintiff to
the defendant, and partly upon claims assigned by him, the
affidavit should, perhaps, show that to each of the items there
was no counter-claim existing in favor of the defendant to the
knowledge of the plaintiff, notwithstanding that the affidavit
on which the attachment is granted may be made by the plaint-
iff's agent or attorney in fact. The objection taken is not to
a mere irregularity which the defendant might be regarded as
having waived, because he made no objection to it, so far as
the court is advised. It is a jurisdictional objection. Donnell
v. Williams, 21 Iun, 216; Ruppert v. Haug, 87 N. Y. 141).
For these reasons the order made by the court below must be
reversed and the motion granted, with ten dollars costs and
the disbursements of this appeal."
In regard to the mode of statement, the rule adopted by
the Court of Appeals in the case of Ruppert v. Haug (87 N. Y.
142), is to the effect that it is sufficient if the affidavit clearly
shows as a matter of fact that the plaintiff is entitled to recover
the sum stated over and above all counter-claims known to him
382
THE LAW OF ATTACHMENT.
The Affidavits,
The very words of the statute need not be followed although
they form the safest formula, but it is not sufficient to show
that the defendant is indebted to the plaintiff in a specific
amount, and is "justly entitled to recover said sum." It does
not follow from that fact that the defendant has not, to the
knowledge of the plaintiff, a counter-claim. Those statements,
in fact, have no tendency to show that a counter-claim does not
exist. We have seen that in the case of Lampkin v. Foster,
the Supreme Court for the Third Department, held that the
statement of the amount over and above due "all discounts and
set-offs" is sufficient, but it is the safest plan to make the
allegation in the precise words of the statute.
§ 446. The Grounds of Attachment. The affidavit should
also set forth the Grounds of Attachment. We have previouly
considered (chapters VIII. to XI. inclusive), the facts necessary
to be shown, to entitle the plaintiff to an attachment, and
have in the first part of this chapter specified the rules
applicable to the manner of stating those facts, and shall here-
after give further suggestions as to the forms to be used in
such cases. This is all the light that can be thrown upon the
subject in an elementary work. The pleader must harmonize
the circumstances in each particular case to the provisions of
the code and the decisions applicable thereto which we have
endeavored herein to classify and arrange. To a certain extent
each application is special and a law unto itself.
PRACTICE.
323
•
•
The Undertaking.
CHAPTER XXIV.
THE UNDERTAKING, WARRANT AND SUBSEQUENT PROCEEDINGS.
SECTION 447. An undertaking requisite to the validity of
the warrant. Section 640 of the Code of Civil Procedure
provides that "the judge, before granting the warrant, must
require a written undertaking, on the part of the plaintiff, with
sufficient suretics, to the effect that if the defendant recovers
judgment, or if the warrant is vacated, the plaintiff will pay
all costs, which may be awarded to the defendant, and all
damages which he may sustain by reason of the attachment,
not exceeding the sun specified in the undertaking, which
must be at least two hundred and fifty dollars."
This provision renders the execution of an undertaking an
essential element to the validity of a warrant.' In some states
the statutes affirmatively declare, the effect of the absence of a
bond to be absolutely fatal to the attachment, rendering it
either void' or voidable.' The use of the word "must" in the
section above, makes the requirement a jurisdictional one. Un-
der the present ruling, that the right of attachment is solely a
'So held under the former Rev. St. (Bennett v. Brown, 4 N. Y. 254).
See also under the Code, Davis v. Marshall, 14 Barb. 96; Kelly . Archer,
48 Id. 68; Van Loon v. Lyons, 61 N. Y. 22; Tiffany v. Lord, 65 N. Y.
810. To the same effect in other states, see Stevenson v. Robbins, 5 Mo.
18; Bank of Alabama v. Fitzpatrick, 4 Humph. 811; Lewis v. Butler, 1
Snced (Ky.) 290.
* Martin v. Thompson, 3 Bibb (Ky.) 252; Ford v. Hurd, 4 Sm. & M.
(Miss.) 683; Ford v. Woodward, 2 Id. 260; Tyson v. Hamer, 2 Howard
(Miss.) 669.
* O'Farrell v. Stockman, 19 Ohio St. 296; Camberford v. Hall, 8
McCord (S. C.) 845.
384
THE LAW OF ATTACHMENT.
The Undertaking.
creature of the statute; this would render the warrant abso-
lutely void in such a case.'
§ 448. The time when the undertaking must be executed.
It will be noted that the statute requires the undertaking to be
executed "before" the warrant is granted. This element of
time is also jurisdictional. Some courts have even gone so far
as to take note of the fractions of a day, so as to vacate a war-
rant made on the same day, but prior to the execution of the
undertaking; and the rule is general that to be of any effect
the execution and delivery of the bond must precede the grant-
ing of the warrant.' Hence, where it appears on the face of
the bond that it was executed after the warrant was signed,
the law is not complied with and the warrant is irregular and
void without the defect is,cured by a counter-statement therein.
Parol evidence in such a case is not held admissible to contra-
dict the record. But where they both bear the same date it
is unnecessary to recite the fact that the warrant was first
executed.'
§ 449. The form of the undertaking. No particnlar form
of bond is required by statute. It is sufficient, therefore, if in
the form of a penal bond, and substantially conforms to the
provisions of the code.' Section 729 provides, that "
a bond
or undertaking required by statute, to be given by a person to
entitle him to a right or privilege, or take a proceeding, is euf-
¹ It seems that the judge has no power to accept a deposit of money
in lieu of an undertaking. Bate v. McDowell, 14 Weekly Dig. 244. As
to the rule in the justice court, see Bennett v. Brown, 4 N. Y. 254.
'Huchesou v. Ross, 2 A. K. Marshall (Ky.) 849.
• Perminter . McDaniel, 1 Hill (S. C.) 267; State v. Chamberlin, 54
Mo. 838; Boyd v. Boyd, 2 Nott & McCord, 125.
• Root v. Monroe, 5 Blackford, 594; Osborne v. Schiffer, 87 Texas,
434.
• Summers . Glancy, 8 Blackf. 801; Reid v. Bank of Kentucky, 2
Blackf. 227; Drake on Attaclıment, § 123.
• Wright. Ragland, 18 Tex. 289.
* Conklin v. Dutcher, 5 How. 886.
PRACTICE.
385
424.
The Undertaking.
ficient if it conforms substantially to the form therefor pre-
scribed by the statute, and does not vary therefrom, to the
prejudice of the rights of the party, to whom, or for whose
benefit it is given;" and the next section (730) further pro-
vides that "where such a bond or undertaking is defective, the
court, officer or body, that would be authorized to receive or
to entertain a proceeding in consequence thereof, if it was
perfect, may, on the application of the persons who executed
it, amend it accordingly; and it shall thereupon be valid, from
the time of its execution." This right of amendment may
be exercised, although a motion is pending founded upon its
defective character.'
§ 450. Statutory requirements. The sureties. There are cer-
tain statutory requirements, however, that should be observed :
1st. As to the sureties. Section 640 of the New York code uses
the phrase "sufficient sureties." By the provisions of section
811, it is not necessary that the plaintiff should sign the bond
as principal, neither is it necessary that more than one surety
should execute it. What it calls for is at least one surety, leav-
ing the number discretionary with the judge granting the
warrant. He, however, will usually require two sureties. In
that event, section 812 requires that it be joint and several in
form. 2d. As to the justification. All that section 640 re-
quires is that the sureties shall be "sufficient." The only proof
required by statute on that point is that stated in section 812,
which provides that there shall be an "affidavit of each surety
subjoined thereto, to the effect that he is a resident of, and a
householder or freeholder within, the state, and is worth twice
the sum specified in the undertaking over all the debts and
liabilities which he owes or has incurred, and exclusive of prop-
erty exempt by law from levy and sale under execution." Two
sureties are customary in attachment bonds and will usually be
required unless sufficient reason is shown to the contrary. In
'Bellinger v. Gardner, 2 Abb. 441; Kissam . Marshall, 10 Abb.
25
386
THE LAW OF ATTACHMENT.
The Undertaking.
lieu of individual sureties, chapter 486 of the Laws of 1881,
provides for the substitution of certain corporations. In such
case no additional surety is required.'
§ 451. Amount of bond, acknowledgment, filing, etc. The
penalty is designated at "a sum specified in the undertaking
which must be at least two hundred and fifty dollars.” In all
ordinary cases that sum is designated, but where the amount is
large or other reasons exist therefor, the court will insist on an
increased penalty. Further security may be required after the
attachment is granted, if sufficient cause be shown. While the
bond must be equal to the sum prescribed by statute,* if it ex-
ceeds that requirement no valid objection can be raised.*
Section 810 of the Code provides that a bond or undertak-
ing, given in an action or special proceeding, must be acknowl-
edged or proved, and certified, in like manner as a deed to be
recorded. Where the sureties signed the affidavits of justifi-
cation but not the undertaking proper, but their acknowl-
edgments thereto were certified by a notary, the court held
the undertaking to be sufficient. But the acknowledgment
and justification cannot be taken before the attorney of record
in the action.'
1 Sweeney v. Rogers, 11 Abb. N. C. 110 n.; Matter of Filer, 11 Abb.
N. C. 107; Ryan v. Cochran, 11 Abb. N. C. 111 n. This provision has
been held inapplicable to an undertaking in an action for claim and
delivery (Behr v. Hall, per Larremore, J.), or to bail on arrest (Cafiero v.
Demartino, 6 W. D. 55), but will apply in proceedings to obtain an
order of arrest (Thompson v. Friedberg, 64 How. 519), and the same
principle will apply in attachment cases.
§ 640 of the Code.
• Whitney ⚫. Deniston, 2 F. & E. 471.
• Marnine v. Murphy, 8 Ind. 272; Williams v. Barrow, 8 La. 57.
• Hill . Burke, 62 N. Y. 111; Shockley . Davis, 17 Geo. 175; Fel-
lows v. Miller, 8 Blackf. 231.
Lampkin v. Douglass, 10 Abb. N. C. 842.
' And see S. C. on appeal, 27 Hun, 517; Bliss . Molter, 2 Law Bul.
21.
PRACTICE.
387
तुक
E
The Undertaking.
Section 816 of the Code provides that "a bond or under-
taking, required to be given by this act, must be filed with the
clerk of the court." Usually the judge retains the bond at the
time of granting the warrant and causes the same to be filed.
It is imperative that this provision should be observed, as the
court may treat an unfiled undertaking as having never been
executed; although it is usual to permit the filing nunc pro
tunc on proper terms, even after the defendant has moved for
a dismissal of the warrant on that account.' Before filing, the
approval of the judge granting the warrant must be indorsed
in writing thereon.'
§ 452. Amendment of undertaking. We have seen that
defective bonds may be cured by amendment and that the
provisions in respect thereto are extremely liberal. This prin-
ciple has been carried so far as to permit the substitution of
new bonds where the defects are of such a character as to ren-
der the undertaking absolutely void. It seems that the war-
rant cannot be vacated on this ground until after a refusal to
make and file proper security. The new bond in such a case
may be filed nunc pro tunc and treated as a substitute ab
initio for that originally filed. Where a bond is amended, the
consent of the obligor should be secured and either endorsed
upon the instrument or properly expressed in a separate paper
in the action."
$453. Effect of defective bonds as to the liability of the
sureties. It is a well settled rule of law that the sureties are
'Millbank . Broadway Bank, 8 Abb. N. S. 223; Mills v. Thursby,
11 How. 129; Leffingwell v. Chave, 19 How. 54; Croghan ». Livingston,
17 N. Y. 218.
• § 812 Code of Procedure.
• Jackson v. Stanly, 2 Ala. 826; McDonald v. Fist, 53 Mo. 343;
Jasper Co. v. Chenault, 38 Mo. 357.
• Drake on Attachments, § 147; Lowe v. Derrick, 9 Porter, 415; Irvin
*. Howard, 87 Geo. 18; Henderson v. Drace, 30 Mo. 358.
⚫ Wilson v. Allen, 8 How. 869; Potter . Baker, 4 Paige, 290; Shaw
D. Lawrence, 14 How. 94.
388
THE LAW OF ATTACHMENT.
The Undertaking.
bound by the terms of an undertaking however defective the
same may be as between the parties to the action,' provided it
is given prior to the dismissal of the writ.' It may be good
at common law though not within the provision of any affirma-
tive statute.'
Section 642 of the Code of Civil Procedure expressly pro-
vides that "It is no defense to an action upon an undertaking
given, upon granting a warrant of attachment, that the warrant
was granted improperly, for want of jurisdiction, or from any
other cause." This removes all questions on this point that
may have been raised by the opinion of the Supreme Court,
in the case of Bildersee v. Aden (12 Abb. N. S. 324), and as-
similates the rule to that adopted by the courts in other states.
The sureties are bound also by all the recitals in the under-
taking signed by them, and cannot therefore contradict the
statement therein that "an attachment has been issued.”
§ 454. Extent of the liability. The liability of the sureties
are not necessarily determined by the court in which the suit
is pending, but conforms itself to the final result of the
pro-
ceeding in the appellate court. Section 815 of the Code also
provides that the liability "continues in force after the sub-
stitution of a new party in place of an original party, or any
other change of parties" is affected, "aud has thereafter the
same force and effect, as if then given anew, in conformity to
the change of parties." This provision is held applicable to a
change by act of the court resulting from the death of one
of the parties and the substitution of his administratrix.'
1 Sumpter v. Wilson, 1 Ind. 144; Sheppard v. Collins, 13 Iowa, 570;
State v. Berry, 12 Mo. 876; Hibbs v. Blair, 14 Pa. St. 413.
'Benedict v. Bray, 2 Cal. 251.
• Williams v. Coleman, 49 Mo. 825: Barnes v. Webster, 16 Mo. 258.
• Coleman v. Bean, 32 How. 870; S. C., 8 Keyes, 94.
• Ball ⚫. Gardner, 21 Wend. 270; Bennet v. Brown, 20 N. Y. 99;
Robinson v. Plimpton, 25 N. Y. 484.
• See on this point under the old Code, Potter v. Van Vranken, 36
N. Y. 619.
* Manning ⚫. Gould, 1 Civ. Pro. Rep. 216.
PRACTICE.
389
The Undertaking.
§ 455. Liability of the sureties and how enforced The
bond in attachment provides that the obligors shall, in case the
defendant recovers judgment, or the warrant is vacated; pay
the plaintiff "all costs, which may be awarded to the defend-
ant, and all damages, which he may sustain by reason of the
attachment, not exceeding the sum specified in the under-
taking." In case judgment is recovered by the defendant this
covers the entire costs of suit, and is not limited to the motion
fees for discharging the warrant. It is difficult to note any
reason why the defendant should, in such cases, have a special
security for court costs which are dependent on the result of
the suit and in no wise affected by any provisional remedy
granted therein. Where the right of action on the bond ac-
crues upon a dismissal of the warrant on motion pending liti-
gation on the main issue, I am satisfied that only motion costs
is referred to. It would be insensible to hold, that after the
liability of the sureties has become certain by an order of the
courts pendente lite, the amount thereof may be held contin-
gent upon the subsequent proceedings in the action. What
the statute evidently contemplates is that the sureties are liable
for all the costs that have accrued in the proceeding to vacate
the attachment. When that is effected by motion, then motion
costs are permitted; when it is by judgment, then the costs of
the judgment may be assessed. The element of damages in
this respect is liquidated prior to the commencement of pro-
eeedings on the bond. It is only as to the other branch of
damages that questions have arisen.
§ 456. What damages are sustained by reason of the attach-
ment. Counsel fees. The rule is general that the counsel fees
in proceedings to vacate the warrant may be recovered under
this clause; and this includes like fees on appeal,' although
'Currie . Riley, 14 W. Dig. 407; Dunning v. Humphrey, 24 Wend.
81; Gront ♥. Gillespie, 25 Wend. 383; Kerr . Mount, 28 N. Y. 659;
Hallock. Belcher, 42 Barb. 199; Winsor v. Orcutt, 11 Paige, 578; Trass-
nall v. McAfee, 3 Metc. 34; Vorse v. Phillips, 87 Iowa, 428; Littlejohn
v. Wilcox, 2 La. An. 620; Burton v. Smith, 49 Ala. 293.
• Bennett. Brown, 20 N. Y. 99.
390
THE LAW OF ATTACHMENT.
The Undertaking.
the New York Supreme Court, in a late case, have intimated
that there is some question whether the sureties should be held
liable for the costs and expenses of successive unsuccessful
appeals up to the court of appeals, taken by their principal
from an order vacating the attachment.' Another question
has often arisen under this branch of inquiry, and that is as to
how far the counsel fees and other expenses of the trial may
be allowed, where the warrant is only vacated by judgment for
the defendant. The general rule is, that where the attachment
is an original process, the entire cost of defending it may be
recovered, but where, as under the code system, it is simply a
provisional remedy, issuing out of a pending suit, such ex-
penses are not allowable.' This question has never been spe-
cifically passed upon in this state, but analogous cases have
frequently been considered by our courts. Thus the under-
taking to secure an injunction contains no reference to court
costs, but in other respects is similar to that required to pro-
cure a warrant of attachment, the terms being "such damages
not exceeding a sum specified in the undertaking, as he may
sustain by reason of the injunction." Under this clause the
courts hold that counsel fees at the trial cannot be recovered,
unless it is shown that the expense of trial was caused or in-
creased by the injunction, and a trial was necessary to vacate
it.' In McDonald v. James," the Superior Court of the city of
New York held that the counsel fees, at the trial of the issue,
cannot be recovered where no motion to dissolve was made
before trial. But where the trial of the cause is necessary to
determine whether the injunction was properly granted,' or
¹ Baere v. Armstrong, 26 Hun, 19.
'Behrens .. McKenzie, 23 Iowa, 833; Wilson v. Root, 43 Ind. 486.
• White . Wyley, 17 Ala. 167.
§ 620 Code of Civil Procedure.
• Newton v. Russell, 87 N. Y. 527; Hovey v. Rubber Tip Pencil Co.,
50 N. Y. 335; Disbrow v. Garcia, 52 N. Y. 654; Taaks v. Schmidt, 18
Abb. 307; Hotchkiss v. Platt, 8 Hua, 46; Allen ♥. Brown, 5 Lans. 511;
Strong v. De Forest, 15 Abb. 427.
38 N. Y. Super. Ct. 76.
"Rose". Post, 56 N. Y. 603; Newton . Russell, 87 N. Y. 527.
PRACTICE.
391
The Undertaking.
where the court refuses to vacate till after trial,' the expense
of the trial including counsel fee is allowable. As the grounds
of an attachment are always extrinsic from the cause of action;
it is evident that under the foregoing rule the counsel fces on
the trial of an action cannot be recovered upon the bond.
§ 457. The damage to the property attached. In regard to
the loss sustained directly from the attachment the rule was
laid down at an early date in this state, to the effect that if the
defendant retains his property, only nominal damages can be
recovered.' But if the defendant is dispossessed he is entitled
to such damages as the jury may think he has sustained from a
wrongful seizing and detaining of the property, which, in case
it is retained, is its full value, and if it is recovered or returned,
the damages for its detention.' This rule is not confined to
the case of actual damages, so as to exclude all questions of
animus on the part of the plaintiff. Where the attachment is
secured for the sole purpose of harassing the defendant, the
proper remedy is by action against the plaintiff for malicious
prosecution, but this common law right was never intended to
be superseded or affected by the statutory requirements relating
to the execution of special bonds. While the rule of damages
in an action on the bond includes all the privileges of the cor-
relative action of malicious prosecution, so as to entitle the
plaintiff to recovery exemplary or vindictive damages when
Andrews. Glenville Woolen Co., 50 N. Y. 282.
Groat v. Gillespie, 25 Wend. 893.
* Dunning ⚫. Humphrey, 24 Wend. 81, and to the same effect in
injunction cases, see Barton v. Fisk, 30 N. Y. 166; Allen v. Brown, 5
Lans. 511; Bray v. Poillon, 2 Hun, 383; Roberts v. White, 73 N.Y..875;
and in attachment in other states. Wallace v. Finberg, 46 Tex. 85; Car-
penter. Stevenson, Bush. 259; Pettit v. Mercer, 8 B. Monroe, 51;
Reidhar . Berger, 8 B. Monroe, 160; Frankel v. Stern, 44 Cal. 168;
Fleming v. Bailey, 44 Miss. 132; Horn o. Bayard, 11 Rob. (La.) 259.
• Drake on Attachments, § 153; Churchill v. Abraham, 22 Ill. 455;
Sanders. Hughes, 2 Brev. 495; Smith . Eakin,. 2 Sneed, 456; Don-
nell v. Jones, 13 Ala. 490; Bruce ». Coleman, 1 Handy, 515.
392
THE LAW OF ATTACHMENT.
The Undertaking.
obvious malice is shown,' it goes further, and permits the re-
covery of actual damages where no malice can be proven.'
§ 458. General principles relating to actions on bonds. The
undertaking on the part of the sureties is absolute, and renders
them liable directly upon the dismissal of the warrant. No
previous demand upon the principal need be alleged.' But
they are entitled to set off all payments made by their principal
on account of costs or damages; their liability being limited to
the difference between the amount so paid by him and the
sum specified in the undertaking. The undertaking is to pay
the defendant. To him and his legal representatives, only, are
they liable. Neither the officer having charge of the warrant
nor a third party whose goods are attached are within the
terms of the instrument. The liability is also limited to the
particular warrant of attachment thus executed or contemplated
by the parties. It will not extend to one subsequently granted
upon an abandonment of the original process. The abandon-
ment nullifies the warrant and ends the liability. It cannot
even be revived without their consent."
·
The sureties, in an undertaking of this nature, from the
character of their undertaking, are entitled to a strict construc-
tion of the contract of indemnity. Their liability is strictis-
sima juris and should not be extended.' An action will not,
therefore, lie against them until the warrant is fully vacated in
¹ Kirksey v. Jones, 7 Ala. 622; Floyd v. Hamilton, 33 Ala. 622;
Smith ⚫. Eakin, 2 Sneed (Tenn.) 456; McLaughlin v. Davis, 14 Kansas,
168; Hughes . Brooks, 36 Texas, 879; Moore. Withenberg, 18 La.
An. 620.
• Dunning .. Humphrey, 24 Wend. 81; Winsor v. Orcutt, 11 Paige,
578; Bruce v. Coleman, 1 Handy, 515; Hayden v. Sample, 10 Mo. 215.
• Currie v. Riley, 14 W. Dig. 407.
♦ Barre . Armstrong, 26 Hun, 19.
Edwards. Turner, 6 Rob. (La.) 882; Raspillier . Brownson, 7 La.
231; Davis v. Commonwealth, 13 Grattan, 139.
• Erwin v. C. & R. R. Bank, 10 Ala. 700.
McClusky v. Cromwell, 11 N. Y. 598; Sheldon . Sabin, 17 W.
Dig. 105.
PRACTICE.
393
The Warrant.
terms. The mere fact that it is nullified as to some of the
property will not bring the case within the rule.'
THE WARRANT.
§ 459. The warrant. Section 641 of the Code specifies all
the requisites for the warrant of attachment. As these require-
ments are properly covered by printed forms in reach of every
attorney, but little need be said on this subject. The warrant
is simply an ex parte adjudication of an existing right of attach-
ment, and an order to the sheriff to execute the same against
the defendant's property. These are the essential elements,
but the courts held under the former Code that while the
judge's signature was absolutely necessary to confer jurisdic-
diction,' that of the attorney was not, and it might be supplied
by amendment even after motion to vacate; neither was the
neglect to place the judge's name upon the copy of the war-
rant a fatal omission; nor the failure to state the fact that an
action was then pending, or to state the grounds of attach-
ment.*
The New Code is more imperative in its terms. It states
that the "warrant must be subscribed by the judge and the
plaintiffs attorney, and must briefly recite the ground of the
attachment, etc." These elementary requirements seem to be
jurisdictional, and their absence is fatal, without the objection
is curable by amendment, under the liberal provisions of §§ 721
to 724 of the Code. Warrants should be issued to "the sheriff
of a particular county, or, generally, to the sheriff of any
county," and they "may be issued at the same time to the
sheriffs of different counties. The latter course is advisable
¹ Sheldon v. Sabin, 17 W. Dig. 105.
* Greenleaf. Mumford, 30 How, 80.
• Kissam v. Marshall, 10 Abb. 424, and see Yorks v. Peck, 17 How.
192.
• Greenleaf v. Mumford, 30 How. 80..
Lawton. Kiel, 51 Barb. 30.
• Dinan. Allen, 16 Hun, 407.
* § 641 of the Code of Civil Procedure,
394
THE LAW OF ATTACHMENT.
The Warrant.
where property is situated in more than one county. The
practice in such a case is to draw up the several warrants
addressed to the sheriffs of the respective counties, but pre-
cisely similar in other respects, and have the judge sign them
all, upon the single set of attachment papers filed in the county
where the action is brought. Should property subsequently
be discovered in another county, in my opinion, a new warrant
may be procured upon the original papers, directed to the sheriff
of such county. This practice, however, is not within the
strict letter of the statute which provides that warrants may be
issued at the same time to sheriffs of different counties."
§ 460. When and by whom the warrant is granted. Section
638 of the Code of Civil Procedure provides that the warrant
may be granted by a judge of the court, or by any county
judge, to accompany the summons, or at any time after the
commencement of the action and before final judgment therein.
The provision in regard to the time of issuing the warrant was
evidently inserted to end all legal wrangles on this point.
Many authorities insisted that if the warrant issued prior to
the service of summons it was void,' while an equally strong
array favored the opposite doctrine. The latter view was
adopted by the New Code.' In this connection, sections 416
aad 638 should be read together; the former section states that
"a civil action is commenced by the service of a summons.
But from the time of the granting of a provisional remedy,
the court acquires jurisdiction, and has control of all the sub-
sequent proceedings. Nevertheless, jurisdiction thus acquired
is conditional, and liable to be divested, in a case where the
¹ Kerr v. Mount, 28 N. Y. 659; Zerega v. Benoist, 7 Rob. 199; Gould
v. Bryan, 8 Bosw. 626.
* Webb v. Bailey, 54 N. Y. 164; Lawton e. Kiel, 51 Barb. 80; Corson
v. Ball, 47 Barb. 452.
'A summons may be considered as “issued " within the provision of
the Code when it is placed in the hands of a person authorized to
serve it with bona fide instruction to him to make a legal service thereof.
See Mills v. Corbett, 8 How. 500; Gregory v. Weiner, 1 Code R. N. S.
210.
PRACTICE.
395
The Warrant.
jurisdiction of the court is made dependent, by a special pro-
vision of law, upon some act, to be done after the granting of
the provisional remedy."
In this case the act to be
§ 461. Service of the summons.
done to preserve jurisdiction, is designated in the last clause of
section 638 as follows: "Personal service of the summons
must be made upon the defendant, against whose property the
warrant is granted, within thirty days after the granting there-
of; or else, before the expiration of the same time, service of
the summons by publication must be commenced, or service
thereof must be made without the state, pursuant to an order
obtained therefor, as prescribed in this act; and if publication
has been, or is thereafter commenced, the service must be
made complete by the continuance thereof."
►
§ 462. What constitutes a service of the summens within 30
days. Where two or more defendants are sued jointly, a ser-
vice upon one being sufficient to hold the joint property would
seem to answer the requirements of the statute, and the Supreme
Court, at special term, so held in the case of Orvis v. Gold-
schmidt,' but this rule is opposed by the general term decision
in the case of Donnell v. Williams," where the court held that
while such service might be sufficient as to the party served
it would not retain jurisdiction as to the joint property of the
parties defendant. In regard to the form of service, the rule
is peculiar, it permits a service by publication, but not by sub-
stituted service as specified in § 435 of the Code,' although in
relation to the latter, g 437 provides that, "On filing an affi-
davit, showing service according to the order, the summons is
deemed served, and the same proceedings may be taken there-
upon, as if it had been served by publication, pursuant to an
order for that purpose, made as prescribed in the next section."
When service is made by publication all the requirements of
1 2 Civ. Pro. R. 814.
* 21 Hun, 816.
• Bogart v. Swezey, 26 Hun, 463.
396
THE LAW OF ATTACHMENT.
The Warrant.
the statute must be strictly performed. The order must be
granted and the publication commenced within the thirty days.
The fact that one of the defendants requested a delay beyond
that period will not estop them from taking advantage thereof,
by declaring the attachment void on account of such delay.'
The publication must be made in each paper designated in the
order, at least once within the statutory period,* but in lieu
thereof a service may be made upon the defendants out of the
state. In order to sustain the attachments it is imperative
that the order under which the publication was made should
be valid.'
§ 463. Effect of appearance. In regard to the effect of a
personal appearance, the court of appeals, in the case of Catlin
v. Ricketts (91 New York, 668), say "It is true that section
638 requires that the summons shall be served within thirty
days after the granting of the attachment; but section 424 of
the Code must be read with section 638, and that provides,
that the voluntary general appearance of the defendant is
equivalent to personal service of the summons upon him.
Here both of the defendants against whom the attachment
was granted appeared in the action, generally, within the thirty
days, and that, for all purposes of the action, was equivalent to
a personal service of the summons. It would have been a very
idle ceremony for the plaintiff to procure personal service of
the summons upon the defendants, after they had put in a
general appearance in this action, Nothing to the contrary of
this was decided in the case of Blossoms v. Estes, 84 N. Y. 615.
In that case the summons was not served within thirty days,
and it was therefore held that the attachment fell, and that a
subsequent appearance did not revive it or give it new vitality."
¹ Mojarrieta v. Saenz, 80 N. Y. 547.
• Taylor v. Troncoso, 76 N. Y. 599.
* Baron v. Biaren, 8 Law Bull, 50.
• Ladd ». Terre Haute C. & M. Co., 18 W. Dig. 209.
• To the same effect see Catlin v. Moss, 2 Civ. Proc. R. 201.
PRACTICE.
397
The Warrant.
In calculating the thirty days the day of granting the record is
excluded, and the whole of the thirtieth day is allowed. If the
last day is Sunday, or a legal holiday, it must be excluded.'
§ 464. Effect of failure to serve. It was held under the old
Code that the omission to serve the summons within the thirty
days was a mere irregularity, which would give the right to
the defendant to vacate the warrant and the levy thereunder,
but in case he should waive the defect, the proceedings could not
be nullified by third parties.' This rule is correct on the
assumption that the neglect creates a mere irregularity, but the
later authorities hold it to be a jurisdictional defect. In Blos-
som v. Estes (84 N. Y. 614), the court of appeals, citing the
Code requirement, that the service should be made within
thirty days after granting the warrant, say: "Here is a plain
condition, on which the vitality of the attachment depended,
and it has not been complied with; it was good when issued,
but remaining so for thirty days only, unless within that time
one or the other or the two steps were taken. The plaintiff,
however, neither served the summons personally nor by publi
cation. At the end of that time the statutory bar fell, and
with it the attachment. The jurisdiction which attached upon
allowance of the warrant, ceased, and as to that proceeding it
was as if the statute had been repealed ;" and the courts now
entertain motions at the suit of subsequent attaching creditors
to vacate the warrant for want of service within the statutory
period.'
§ 465.
Miscellaneous provisions. Second attachment.
Although the court will not permit a second attachment on
the same facts contained in the first affidavit, which was dis-
§ 788 of the New Code, service on Monday where the 30th day is
Sunday is sufficient (Gribbon v. Freel, 93 N. Y. 93).
* Simpson v. Burch, 4 Hun, 815; Gere v. Gundlach, 57 Barb. 18.
See decision of Justice Lawrence in Bogart v. Sweezey, 8 Law
Bull. 41.
398
THE LAW OF ATTACHMENT.
I
The Warrant.
missed on its merits,' yet, he may, if done in good faith,
abandon the first attachment and order of publication, and pro-
cure a new one, on the same or additional facts. In such a
case the second attachment cannot be vacated on the ground
that the same affidavits were used in each of them. It seems
that such use is proper, and, at any rate it is a mere matter of
practice, a departure from which will not deprive the court of
jurisdiction, even though the affiants fail to state whether a
previous application has been made to the court for a warrant.'
So, where an attachment has been vacated, and an appeal
therefrom is still pending, a second action can be commenced
in another court, and another attachment secured therein for
the same cause.*
§ 466. Same. When attachment and arrest may be simul-
taneously issued. There can be no doubt as to the correctness
of the proposition that the plaintiff may, in a proper case, have
the benefit of the double remedy of attachment and arrest.
Neither of these provisional remedies are in terms exclusive,
and it is always a question appealing to the sound description
of the court, as to whether any, and if 80, how many auxiliary
processes may be allowed at one time and in one case.. In the
exercise of this discretion, the object to be looked at is the
granting of full security on the one hand, and the shielding
from unnecessary or unjust oppression on the other hand. The
plaintiff is entitled to full security, and to that only. He is
entitled to a double remedy except where it gives him double
security. Thus if the entire claim is $10,000, and the entire
levy under attachment amounts to $5,000, and there is no other
leviable property, an order of arrest with $5,000 bail would be
proper; but, where the plaintiff has secured a levy for the full
amount of his claim and an order of arrest with bail for a like
amount, he will be compelled to elect which remedy he relies
¹ Schlemmer v. Myerstein, 19 How. 412.
• Mojarrieta . Saenz, 80 N. Y. 547.
• Haviland ⚫. Wehle, 11 Abb. N. S. 447.
PRACTICE.
899
The Warrant.
on and to abandon the other.' The only specific provisions of
the Code on this point are contained in section 719, and are as
follows: "Where an application for an order of arrest, an
injunction, and a warrant of attachment, or two of them, is
made, in the same action, against the same defendant; and it
satisfactorily appears, that, under the particular circumstances
of the case, two or all of them are not necessary for the plaint-
iff's security, the court or judge may, in its or his discretion,
require the plaintiff to elect between them."
§ 467. Same. Warrant in an action against a public officer.
A warrant of attachment, against the property of one or more
defendants in an action, may be granted, upon the application
of the plaintiff, where the complaint demands judgment for a
sum of money only; and it appears, by affidavit, that the
action is brought to recover money, funds, credits, or other
property, held or owned by the state, or held or owned offici-
ally or otherwise, for or in behalf of a public or governmental
interest, by a municipal or other public corporation, board,
officer, custodian, agency, or agent, of the state, or of a city,
county, town, village, or other division, subdivision, depart-
ment, or portion of the state, which the defendant has, without
right, obtained, received, converted, or disposed of; or in the
obtaining, reception, payment, conversion, or disposition of
which, without right, he has aided or abetted; or to recover
damages for so obtaining, receiving, paying, converting, or
disposing of the same; or the aiding or abetting thereof. In
order to entitle the plaintiff to a warrant of attachment, in a
case specified in this section, he must show, by affidavit, to the
satisfaction of the judge granting it, that a sufficient cause of
action exists against the defendant, for a sum, stated in the
affidavit.' This is the only instance where the right to attach,
depends upon the nature of the action. It was made up from
the Code Amendment of 1875, and grew out of the legal com-
¹ See Duncan v. Guest, 2 Civ. Pro. R. 275.
• Section 637 Code of Civil Procedure.
400
THE LAW OF ATTACHMENT
The Warrant.
plications in the celebrated Tweed Case. In my opinion the
provision should be extended so as to permit a warrant of
attachment whenever the case comes within section 549 of the
Code relating to arrests.
§ 468. When a warrant may be issued to the defendant
against the plaintiff. By the terms of section 720 of the New
Code, the defendant's right to any provisional remedy where he
interposes a counter-claim, is the same as if action was origi-
nally brought by him against the plaintiff. For the purposes
of applying the provisions of the Code in such a case, the
defendant is deemed the plaintiff, the plaintiff is deemed the
defendant, and the counter-clain, the complaint.
PRACTICE.
401
·
Execution of the Warrant.
CHAPTER XXV.
EXECUTION OF THE WARRANT.
SECTION 469. Duty of the sheriff. Immediate action. The
sheriff to whom the warrant is directed and delivered, should im-
mediately proceed to execute it, in the manner therein provided,
by attaching so much of the defendant's property, not exempt
from levy and sale, by virtue of an execution, as will satisfy the
plaintiff's demand with the costs and expenses. Should the
original levy be insufficient, he "may levy from time to time,
and as often as is necessary, until the amount for which it was
issued has been secured, or final judgment has been rendered
in the action, notwithstanding the expiration of his term of
office." The statute calls for immediate action. If by any
laches on his part, property was lost that might otherwise have
been levied upon, he will be held liable for the consequent
damages. It is not a sufficient excuse in such a case, that the
plaintiff failed to state that urgency was desired. The warrant
itself specifies that fact, and such is his duty independent of
special instructions. To make an available plea he should
show that the failure to execute the writ was caused by the
§ 641 Code of Procedure.
• Ib.
* Kennedy v. Brent, 6 Cranch, 187; Bowman v. Cornell, 39 Barb.
69; Bank of Rome v. Curtiss, 1 Hill, 275; Hinman v. Borden, 10 Wend.
397; State v. Miller, 48 Mo. 251; Palmer v. Galluss, 16 Conn. 562;
Commonwealth v. Contner, 18 Pa. St. 439; Kimball v. Davis, 19 Me.
310; Frost v. Dougal, 1 Day, 128; McKinney v. Craig, 4 Sneed, 577;
Bank of Hartford v. Waterman, 26 Conn. 332; Davidson v. Waldron, 81
IIL 121.
• Kennedy v. Brent, 6 Cranch, 187.
26
402
THE LAW OF ATTACHMENT.
Execution of the Warrant.
consent, express or implied, of the plaintiff. The test, as
stated by Freeman in his treatise on executions, is this: "Did
the defendant have property of which the officer, by the exer-
cise of reasonable diligence could have knowledge, and upon
which a seizure could have been made. No doubt, a prudent
plaintiff would, on delivering the writ to the officer, take pains
to inform him, where property, subject to the writ could be
found, and would, at all times, co-operate with the officers in
their attempts to execute the writ. The plaintiff who pur-
sues this course places the officer in such a position that his
failure to at once proceed to levy gives rise to a presumption of
negligence. But the plaintiff is not bound to pursue this course.
Ile need only place the writ in the officer's hands for service.
The officer must then make reasonable search and inquiry; if such
search and inquiry would have discovered property, his omission
cannot be excused by showing that the plaintiff neglected to
point out anything upon which a levy could be made.' Posses-
sion of personal property being prima facie evidence of owner-
ship, whenever it is shown that the sheriff had knowledge that
the defendant was possessed of personal property, and he fails
to levy upon it, the burden of proof falls upon him to show
that the property was not subject to execution.' The rule
requiring the exercise of diligence will not be permitted to
compel undue force or oppression on the part of the officer in
the exercise of his duty,' he being liable in damages at the suit
of the defendant, if his zeal is so far manifested as to show
malice."
¹ Bank of Pa. v. Potius, 10 Watts. 148.
• § 252.
'See also Tomlinson v. Rowe, Hill & Den. 410; Fisher v. Gordon, 8
Mo. 386; Hutchins v. Ruttan, 6 N. C. C. P. 452.
• Taylor . Wimer, 30 Mo. 129.
• Hinman. Borden, 10 Wend. 867; Haggerty v. Wilber, 16 John.
287; Brewster v. Van Ness, 18 Jobn. 133; Jackson v. Law, 5 Cow. 248.
Beaty v. Perkins, 6 Wend. 882; People v. Warren, 5 Hill, 440;
Hart v. Dubois, 20 Wend. 236; Everitt v. Herrill, 48 Me. 537; Parker
. Smith, 6 Ill. 411.
PRACTICE.
403
*
ļ
Execution of the Warrant.
§ 470. Rule where the defendant's property is mixed with
that of others in his possession. Equity requires that where
one knowingly permits his property to be so mixed with that
of another, as to be undistinguishable, he forfeits all interest
therein.' This rule is specially applicable where the rights of
third parties arise. The sheriff has the right to attach all the
defendant's property, and this right should not be abridged
through fear of taking property of third persons, that has been
ingeniously mixed up with it. In such a case the courts have
permitted a levy upon all the goods under a warrant against
the innocent party,' but not where it is against the person who
mnade the intermixture, and thereby lost his interest therein,'
unless it can be shown that it was made collusively or for the
purpose of defeating the levy. But where the goods of a
third party may be distinguished and separated, the sheriff is
bound on demand to deliver the same to the true owner.' In
such a case the intermixture does not create a "confusion of
goods" within the well recognized meaning of that term.®
§ 471.
Proceedings where property is claimed by third
parties. Section 657 of the Code of Civil Procedure provides,
that, "if goods or effects, other than a vessel attached as the
property of the defendant, are claimed by or in behalf of
another person, as his property, the sheriff may, in his discre-
tion, empanel a jury to try the validity of the claim." This
refers to the ordinary sheriff's jury, usually made up of his
friends, and acting under a general understanding that they
1 Smith v. Sanborn, 6 Gray, 134; Robinson . Holt, 89 N. II. 537;
Willard v. Rice, 11 Metc. 498; 2 Kent's Commentaries, 364.
* Wilson v. Lane, 33 N. H. 466; Walcott v. Keith, 2 Fost. 190;
Loomis . Green, 7 Maine, 886; Weil . Silverstone, 6 Bush (Ky.) 698;
Bond v. Ward, 7 Mass. 123; Morrill v. Keycs, 14 Allen, 222.
⚫ Beach . Schmultz, 20 Ill. 185.
• Treat v. Barber, 7 Conn. 274.
Albee . Webster, 16 N. H. 362; Smith v. Sanborn, 6 Gray, 134;
Shumnay v. Rutter, 8 Pick. 443; Gilman v. Hill, 36 N. H. 311.
• See Drake on Attachment, § 199; Loomis v. Green, 7 Mc. 386;
Holbrook . Hyde, 1 Vt. 280.
404
THE LAW OF ATTACHMENT.
Execution of the Warrant.
shall always find for the claimant. It is provided by next
section, that if, by their inquisition, the jury find the property
of the goods or effects, to have been in the claimant, at the
term of the levy, the sheriff must forthwith deliver them to
him or his agent, unless the plaintiff gives an undertaking,
with sufficient sureties, to indemnify the sheriff for the deten-
tion thereof. If the undertaking is given, the sheriff must
detain the goods or effects, as the property of the defend-
ant; and the succeeding section states, that if the property is
found to be in the defendant, the finding does not prejudice
the right of the claimant to bring an action, to recover the
goods or effects, or the value thereof.
The gist of these provisions is that the sheriff may, through
the medium of a friendly jury, compel the plaintiff to give
a bond of indemnity, under the penalty of losing his lien,
either in favor of the defendant, by a return of the property,
or in favor of subsequent lienors who may be induced to give
the necessary security.'
$ 472. How property may be attached. Lis pendens.
The Code, § 649, specifies the mode of attaching, 1st, real
estate, 2d, movable personalty, and 3d, other personal prop-
erty. In relation to real estate, it provides for a levy by filing
with the clerk of the county, where it is situated, a notice of
the attachment, stating the names of the parties to the action,
the amount of the plaintiff's claim, as stated in the warrant,
and a description of the particular property levied upon. The
notice must be subscribed by the plaintiff's attorney, adding
his office address, and must be recorded and indexed by the
clerk in the same book, in like manner, and with like effect,
as a notice of the pendency of an action. In other words, it
shall operate as an ordinary lis pendens. The attachment,
when so made, does not take precedence of a prior unrecorded
deed from the defendant to a third party for value. It is, in
Smith v. Osgood, 45 N. II. 178.
* Lamont v. Cheshire, C5 N. Y. 30.
PRACTICE.
405
Execution of the Warrant.
fact, more the notice of an inchoate right or of a future claim
than any actual present lien upon or interest in the property;
a statement that if judgment shall be recovered in a pending
suit, the lien thereby fixed shall commence as of the date of
levy thereon. Prior to the adoption of the New Code, the
manner of levying upon the realty was not designated by
statute, and the courts held that all that was required to charge
the same, except as to bona fide purchasers and incumbrances,
was the performance of some act with the intent to designate
to the debtor that a levy had been made thereon.' It may
not, and is not, now required that entry should be made upon
the property, or that there should be left with the person in
possession a copy of the warrant. The mere return of the
warrant with an indorsement thereon of the real estate
attached is all that is sufficient in the absence of special statu-
tory provisions on the subject,' and perhaps this method would
still be sufficient as to the defendant, and others having actual
knowledge of the fact of levy.
§ 473. The description of the property is sufficient if it
serves to identify the same, and distinguish it from other prop-
erty owned by the defendant or third parties. The object of
this requirement is to give notice to all prospective purchasers
or incumbrancers, hence both the owner and his property
must be recognizable from the terms used in the lis pendens.
To do this it is not necessary to specify the metes and bounds,
or designate it with the same care required in a sheriff's sale
on execution. But a generalization that takes in all the
debtor's property in the county,' or fails to indicate its locality
¹ Rodgers v. Benner, 45 N. Y. 379.
* Id. See also Learned v. Vandenburgh, 8 How. 77.
• Burkhardt v. McClellan, 1 Abb. Ct. of App. 203; Perrin v. Leverett,
18 Mass. 128; Crosby v. Allyn, 5 Me. 453.
* Howard v. Daniels, 2 N. II. 137; Bacon v. Leonard, 4 Pick. 277;
Whitaker . Sumner, 9 Pick. 808; Crosby v. Allyn, 5 Me. 453.
* Hathaway. Larrabee, 27 Me. 449; Sed contra, Moore . Kidder,
55 N. H. 488; Taylor v.
408
THE LAW OF ATTACHMENT.
Execution of the Warrant.
with precision or correctly' is not such a description as to
answer the requirements of a notice to either the debtor or
third parties of the property intended to be charged by the
levy, and will therefore be held insufficient at cominon law or
under the Code requirements.
§474. Same. Movable personal property, including a bond,
promissory note, or other instrument for the payment of
money, may be attached by taking the same into the sheriff's
actual custody. He must thereupon, without delay, deliver
to the person from whose possession the property is taken, if
any, a copy of the warrants and of the affidavits upon which
it was granted. This is the only manner by which property
capable of delivery can be legally levied upon. The mere
issuing of the warrant to the sheriff creates no lien either in-
choate or contingent upon the debtor's property.*
The Code requires the property to be taken into "actual
custody," but does not specify the meaning of that term.
Does it mean manual possession or merely the exercise of
dominion over it? There is no reason why this anticipatory
levy should be accomplished with greater ceremony than the
final levy under execution. In the latter case it is well settled
that a manual taking is unnecessary. It is enough if the
officer, by virtue of the process, assumes control of the prop
crty, gives notice to the debtor of the levy, and makes a
minute thereof. The goods muust however be in view of the
1
¹ Henry v. Mitchell, 82 Mo. 512; Porter v. Ryme, 10 Ind. 146;
Drake on Attachments, § 237 and cases cited.
* Subdivision 2 of § 649, Code of Civil Procedure.
• United States v. Graff, 4 Hun, 634.
• Lynch v. Crary, 52 N. Y. 181; Rodgers v. Bonner, 45 N. Y. 879;
Williamson. Bowie, 6 Munf. 176; Tomlinson v. Stiles, 4 Dutch. 201;
Ensworth v. King, 50 Mo. 417; Fitch o. Waite, 5 Conn. 117; Robertson
v. Forrest, 2 Brøv. 460.
Elias v. Farley, 8 Keyes, 898; Barker v. Binninger, 14 N. Y. 270;
Dean v. Campbell, 19 Hun, 534.
• Dean . Campbell, 19 Hun, 534; Bond v. Willett, 81 N. Y. 102;
Wehle v. Conner, 83 N. Y. 231.
PRACTICE.
1407
·
•
Execution of the Warrant.
sheriff, and subject to his immediate control and disposition.'
In my opinion the term "actual custody" means actual
dominion over, and control of the property, assumed to be
levied upon, within the meaning of a levy under execution,
and that the true test in the case of attachment or execution
is as to whether such acts have been performed by the judge
as to render him liable for trespass should the process fail to
protect him. If so, the levy is complete, otherwise it is in-
sufficient. It is hardly ever deemed essential that there should
be an actual change of possession in the sense of a manual
delivery of the property levied upon. The "actual custody "
in the sheriff may be held by proxy. There is nothing to
prevent him from appointing the servants of the defendant or
the defendant himself as custodian or keeper. So long as there
is an absence of collusion, and the defendant continues to hold
the same subject to the dominion and control of the sheriff,
the levy will be held valid and binding, not only as to him,
but as to third parties and subsequent attaching creditors.
sheriff is not required to exercise any greater diligence in
taking of property levied upon than a bailee for hire, and
while it is advisable to take an immediate inventory thereof,
such an act is not necessary to constitute a valid levy."
A
§ 475. Same.
Same. Securing control of the goods. We have
seen that the levy is not complete until the sheriff gains con-
1 Van Wyck v. Pine, 2 Hill, 666; Ray v. Harcourt, 19 Wend. 495;
Roth v. Wells, 29 N. Y. 471.
• Carnana v. Cohon, 5 W. Dig. 78; Westervelt v. Pinckney, 14 Wend.
123;
Beekman v. Lansing, 8 Wend. 440; Camp v. Chamberlain, 5 Denio.
198; Connah v. Hale, 23 Wend. 461; Green ». Burk, 23 Wend. 490;
Allen . McCalla, 25 Iowa, 464; Gibbs v. Chase, 10 Mass. 128.
Copley v. Rose, 2 N. Y. 115; Roth . Wells, 29 N. Y. 471; Bond v.
Willett, 81 N. Y. 102; Elias v. Farloy, 5 Abb. Pr. N. S. 39; Minor v.
Smith, 8 Ohio St. 79; Acton v. Knowles, 14 Ohio St. 18; Moss v. Moore,
8 Hill (S. C.) 276; Ames v. Taylor, 49 Me. 881.
• Moore v. Westervelt. 21 N. Y. 103.
• Watts . Cleaveland, 3 E. D. S. 553; Mills ». Thursby, 11 How.
121.
408
THE LAW OF ATTACHMENT.
Execution of the Warrant,
trol of the property. Although he may not take manual pos-
session, he must be in a condition to do so. To put himself
in this position he is not permitted to break open an outer
door, for a man's house is his castle,' but if he gain peaceable
admission to the building, he may force any of the inner
doors. This privilege does not extend to the entrance of the
separate suites of apartments in a building occupied by lodgers
or tenante. Neither does it apply to property of the debtor
that is secreted in the store or dwelling-house of a third party,
who refuses to surrender the same to the sheriff on demand."
The court, in the exercise of its general equity powers,
will, in a proper case, come to the aid of the sheriff, and direct
the person having temporary possession of the debtor's prop-
erty, to deliver the same to the sheriff under the warrant of
attachment held by him. This principle has been applied in
New York State in the case of goods of the attachment debtor
held by a safe deposit company, the order directing the com-
pany to open its vaults, and a tin box where the property was
claimed to be placed, and to deliver the contents to the sheriff."
This right, however, was refused in Pennsylvania on the
ground of want of authority in the court,' and in Massachusetts
the same principle was applied in the case of a trunk deposited
in a bank for safe keeping, the court admitting the power of
the sheriff to break open the trunk when lawfully seized, but
¹ Morse v. Hurd, 17 N. H. 248; Odiorne . Colly, 2 N. H. 66; Taffts
v. Manlove, 14 Cal. 47.
* Curtis v. Hubbard, 1 Hill, 836; People v. Hubbard, 24 Wend. 369;
Closson v. Morris, 47 N. H. 482; Hooker v. Smith, 19 Vt. 152; Suydacker
v. Brasse, 51 Ill. 857.
Williams. Spencer, 5 John. 852; Rex v. Bird, 2 Show. 87; State
•. Thackman, 1 Bay, 858.
• Lee v. Gansell, Loft, 374; Cantrell v. Conner, 6 Daly, 89.
• Barton . Wilkinson, 18 Vt. 186; Platt v. Brown, 16 Pick. 553;
Fullerton v. Mack, 2 Aik. 415.
• United States v. Graff, 67 Barb. 804; see also Loyless v. Hodges,
44 Ga. 647.
Gregg v. Wilson, 8 Phil. 91.
PRACTICE.
409
Execution of the Warrant.
denying the right of the court to interfere in the premises.'
To my mind it is rather a question of discretion than of power,
when the action is pending, and the remedy is sought in a
court having general equity jurisdiction. It is strange if such
a tribunal having issued a mandate, requiring its officer to take
the property of the defendant wherever found within its juris-
diction, cannot enforce its decrees by compelling a third party
having no personal claim thereon to deliver the defendant's
property in his possession to such officer.
§ 476. The mode of levying upon property incapable of
manual delivery, provided by the new Code, is by leaving a
certified copy of the warrant, and a notice showing the prop-
erty attached, with the person holding the same, or, if the
property consist of a chose in action, not evidenced by a
written instrument, for the payment of money, by leaving the
same with the person against whom it exists, or if it consists
in an interest in a corporation or association, or interest or
profits therein, with the president or other head of the asso-
ciation or corporation, or the secretary, cashier, or managing
agent thereof. This mode of procedure in such cases is of
general application,' being made the subject of statutory pro-
visions similar to those in the New York Code.
§ 477. Contents of the notice and service thereof. There
must be a strict performance of the provisions applicable to
the service of the notice, to constitute a valid attachment, under
this subdivision. Thus a service upon the debtor to hold a
demand due him must be made upon him personally. It is
not sufficient if made upon a person in charge at his place of
1 Bottom v. Clarke.
• § 649 Code of Civil Procedure, subdivision 3.
See Mch. & Tr. Bank v. Dakin, 50 Barb. 587; Powell v. Parker,
88 Geo. 644; Bryant v. Osgood, 52 N. H. 182. It is a general rule that
bulky or ponderous articles may be attached, without actual removal:
Pond v. Skidmore, 40 Coun. 313; Bicknell o. Trickey, 84 Me. 273;
Polley v. Lennox Iron Works, 4 Allen, 329; Lewis v. Orpheus, 3 Warc,
143.
410
THE LAW OF ATTACHMENT.
Execution of the Warrant.
business,' nor upon his attorney of record, when it is sought to
secure a judgment in his favor; and the courts have even gone
to the extent of holding that the service upon an agent of a
corporation, but neither an officer or manager thereof, is not
sufficient, although it is shown that the person receiving the
same, immediately mailed it to, and it was received by the
proper managing agent of the corporation.' The reason for the
necessity of a personal service in such cases is, that this provis-
ion is a substitute for the separate action by way of garnish-
ment or trustee process which prevails in many of the states;
the service of a notice upon the debtor being equivalent to
this service of a summons, upon the garnishee or trustee.
In regard to the form of the notice, the courts are more
liberal, the later decisions holding that the property or demand
may be designated in the most general terms, as "all debts,
credits and effects " belonging or due to the attachment debtor,
without stating nature or amount; but some written notice
must be served; it will not answer to make a mere verbal
statement at the time of serving a copy of the warrant."
§ 478. Character of the property and effect of notice. The
term "property incapable of manual delivery," as used in the
Old Code, and the correlative term "other personal property,"
contained in subdivision 3 of 8 649 of the New Code, is appli-
cable to property, not only to that which by its nature is in-
capable of manual delivery to the sheriff, but to that which has
become so from its peculiar position, as where it is under pledge
¹ Orser v. Grossman, 11 How. 520.
• Matter of Flandrow, 84 N. Y. 1.
Pardee v. Leitch, 6 Lans. 303.
McGinn v. Ross, 11 Abb. N. S. 20; O'Brien v. Mech. & Traders' F.
Ins. Co., 56 N. Y. 52; Greenleaf ». Mumford, 19 Abb. 469; and see
Thurber v. Blanck, 50 N. Y. 80; Mech., etc. Bank v. Dakin, 51 N. Y.
519. The case of Greentree v. Rosenstock (61 N. Y. 583), decided by
the commission of appeals, so far as it tends to assert a different rule, is
not applicable to the provisions of the New Code.
* Miles ». Brown, 88 N. Y. Supr. 400.
PRACTICE.
411
Execution of ths Warrant.
or consignment, with advances made upon it,' or retained in
the custom-house for the payment of duties,' or property of
the principal in the proceeds of sales and collections in the
hands of his agents.' It was held under the Old Code that a
liability which was evidenced by a promissory note conld be
attached by notice,' but promissory notes being included ex-
pressly in subdivision 2 of section 649 of the New Code, and
the provisions of subdivision 3 being limited to "other per-
sonal property," it is plain that the rule has now being changed
in that respect. The effect of the service of a notice, is to create
a lien upon the demand or property belonging to the attach-
ment debtor, which lien will be retained notwithstanding any
subsequent transfers of, or changes in, the same. Thus where
at the time of the commencement of an action by the attach-
ment debtor, upon an undertaking given to stay proceedings,
pending an appeal upon a judgment in his favor, upon which
an attachment previously levied still existed, the fact of such
levy will prevent the maintenance of the action upon the
undertaking, that being merely collateral security for the
judgment and an incident thereto, which properly belonged to
the sheriff by virtue of the original levy.*
§ 479. Certificate to be furnished by the garnishee. Section
650 of the Code of Civil Procedure provides that "upon the
application of a sheriff holding a warrant of attachment, the
president or other head of an association or corporation, or the
secretary, cashier or managing agent thereof, or a debtor of
the defendant, or a person holding property, including a bond,
promissory note or other instrument, for the payment of money
belonging to the defendant, must furnish to the sheriff a cer-
tificate, under his hand, specifying the rights or number of
¹ Clarke v. Goodridge, 41 N. Y. 210.
* Kuhlman v. Orser, 5 Duer, 242, and see Brownell v. Carnley, 3
Duer, 9.
Greentree
Rosenstock, 61 N. Y. 583.
Russell v. Ruckman, 3 E. D. S. 419.
Wehle ⚫. Spellman, 75 N. Y. 585.
412
THE LAW OF ATTACHMENT.
Execution of the Warrant.
shares of the defendant, in the stock of the association or cor-
porations, with all dividends declared, or incumbrances thereon;
or the amount, nature and description of the property, held
for the benefit of the defendant, or of the defendant's intercst
in property so held, or of the debt or demand owing to the
defendant, as the case requires."
The statute does not designate any particular form in which
this demand shall be made, nor does it state whether it shall
be verbal or in writing. All that is required, therefore, is
that the sheriff should make known to such person or corpora-
tion, the fact, that he holds a warrant against the attachment-
debtor, and that by virtue thereof he demands a certificate, as
prescribed by section 650, according to the circumstances in
each particular case, and at the same time the warrant and
notice specified in subdivision 3, of section 649 should be
served. The application will not be sufficient if it fails to dis-
close the fact that the sheriff has an attachment in his hands.
A receiver being an officer of the court cannot be compelled
by this procedure to certify as to property held by him offici-
ally,' such property would, in fact, be in custodia legis, and
therefore not attachable. In the case of Schieb v. Baldwin,
the court held that if the application is not made until after
the entry of judgment, it must be made on account of the
execution. This was grounded upon the theory that the
attachment has no force or vitality after judgment, except
for the purpose of retaining a prior levy until merged in the
levy of the execution.'
$ 480.
Effect of refusing to give a proper certificate. If
the person to whom application is made, as prescribed by § 650
of the new Code, refuses to give a certificate, or if it is made
to appear by affidavit to the satisfaction of the court or a judge
1 Schieb v. Baldwin, 13 Abb. 469.
Lehman . Illums, 1 Law Bull. 58.
• Sed contra as to the vitality of attachments under the former Code.
Thompson v. Culver, 88 Barb. 442; Bowen . First National Bank of
Medina, 84 How. 408.
PRACTICE.
413
Execution of the Warrant.
thereof, or to the county judge of the county to which the
warrant is issued, that there is reason to suspect that a certi-
ficate given by him is untrue, or that it fails fully to set forth
the facts, required to be shown thereby; the court or judge
may make an order directing him to attend at a specified time,
and at a place within the county to which the warrant is issued
and submit to an examination under oath concerning the same.
The order may, in the discretion of the court or judge, direct
an appearance before a referee named therein.'
This pro-
vision was taken partly from § 236 of the old Code, partly
from § 1, ch. 53, Laws of 1848, relating to the examination of
the officers of foreign corporations, and partly from rulings of
the courts. Formerly much doubt existed as to the right to
secure a compulsory examination in cases where the certificate
was shown to be untrue or was manifestly insufficient in sub-
stance. In this respect the Code now upholds the rule adopted
by the supreme court in the case of Baxter v. Mo., Kas. &
Tex. R. R. Co.,' which permits the cxamination under such
circumstances, although it had been previously denied by the
courts. When a proper case is shown, and an order has been
granted, the oral examination cannot be avoided by the sub-
mission of affidavits tending to show that the party haз no
property applicable to the warrant, and is not indebted to the
attachment debtor. In regard to the extent and character of
the examination, the rule has also become more elastic and
liberal. Formerly the attachment creditor was bound by the
direct answer, affirming or denying the existence of property
applicable to the attachment. In the case of Baxter v. Mo.
Kas. & Tex. R. R. Co., this rule was extended so as to permit
an examination into the fact of holding the property, the
character in which he held it, the manner in which it was ob-
1 § 651 Code of Civil Procedure.
* 4 Hun, 630.
* See Hoagland . Stodolla, 1 Code R. N. S. 210; Carroll . Finley,
26 Barb. 61; Reynolds v. Fisher, 48 Barb. 146.
* Glen Cove Man'f'g. Co. v. Gotthold, 1 Civ. Pro. R. 866 n; Baxter
v. Mo. Kas. & Tex. R. R. Co., 4 Hun, 630.
414
THE LAW OF ATTACIIMENT.
Execution of the Warrant.
tained, and the object of securing it; that being the limit of
the examination. In Glen Cove Starch Manufacturing Co. v.
Gotthold,' Justice Lawrence, at Chambers, permitted an in-
quiry into the consideration and character of the assignment,
under which the parties examined claimed to have acquired
title to the property forming the subject of the inquiry, and
Justice Barrett, in Rutter v. Boyd,' held that the party
examined in this proceeding may be punished for contempt, if
he refuses to produce the papers under which he claims title
to the property, and that he cannot now end the examination
by denying any title in the attachment debtor therein.
¹ 1 N. Y. Civ. Pro. R. 366, n.
* 8 Abb. N. C. 6.
In the case of Ess v. Toplayni (4 N. Y. Civ. Pro. Report, 172), Justice
Hawes of the City Court of New York, delivered the following Chambers
decision. "The plaintiff herein obtained an attachment against the
property of defendant, and served the same upon the witness Andrews,
now under examination. An order of examination was obtained requir
ing the witness to appear to be examined, upon the ground that he had
refused to make the required certificate.
"651 of the Code of Civil Procedure is based upon section 230 of the
Old Code, and that in turn upon the Statute of 1848 (2 R. S. 9.). Sec-
tion 13, of article 8, title 1, chapter 5, part 2, of the Revised Statutes, is
very wide-reached in the power conferred in such an examination, giv-
ing the plaintiff power to examine as to all matters touching the con-
cealment of the debtors property, and touching all matters relating to
the dealings of the debtor with the witness; but this is based upon the
assumption that the court has good reason to believe that the party has
concealed or embezzled the debtors estate.
"In the case at bar the witness claims title to all the money in his
possession, by reason of a prior indebtedness, and of advances made by
him to the debtor. The plaintiff claims the right to examine as to the
dealings between the witness and the debtor. An examination of the
authorities, inclines me to think that he cannot do so upon this motion,
under the facts submitted.
"It is claimed by plaintiff that upon his testimony taken herein, the
witness is entitled to only a portion of the money.
"This is controverted by the testimony submitted by the witness.
In the case of Baxter v. Missouri, Kansas & Texas Railway Co. (67 Barb.
283), the court held that the party could state the character in which he
PRACTICE.
415
Execution of the Warrant.
§ 481. Collection of debts levied upon by the sheriff. The
Code provides that the debts, effects and things in action
attached by the sheriff must, subject to the direction of the
court or judge, be collected and received by him, and to that
end it authorizes him to maintain any action or special pro-
ceeding in his own name or in the name of the defendant,
which may be necessary for that purpose, or to reduce to his
actual possession an article of personal property capable of
manual delivery, but of which he has been unable to attain
possession. It also authorizes him to discontinue such action
or special proceeding at such time and on such terins as the
held the money in his hands, and the manner it was obtained, and
the object in gathering it. But the plaintiff could go no further,
and the validity of such trust was the object of investigation in
another mode. In the case of Glen Cove Starch Co. v. Gotthold
(1 N. Y. Civ. Pro. 866), Mr. Justice Lawrence, referring to the
above case, very aptly says that the object of the examination is
not to try the title of the witness, but to ascertain the character and
extent of that title. So far as appears upon the face of the papers, the
indebtedness of the debtor to the witness is a valid claim, but its invalidity
can be shown by the plaintiff; but it must be done in other proceedings
where the whole issue between the parties can be tried and properly
determined. While, however, this is true, that the witness is bound to
show the character of his title to the property in question, although he
will not be compelled to establish its validity. This distinction may
scem a refined one, but I think that the decisions tend to establish it,
and it is based on zound reason. A party cannot be called upon in this
informal and ex parte manner to have his rights determined; neither can
he be subject to searching cross-examination as to his rights. The law
gives him the right of jury, and of a proper power for the determination
of the validity of his claim. On the other hand, the plaintiff is entitled
to know what his claim is in specific terms, and the authority under
which he holds. The distinction is, it seems to me, a very clear one,
and is based upon sound reason. It appears that their exists an assign-
ment of the money in question to the witness. The assignment must be
produced and the circumstances and conditions under which it was
given must be shown. I think that the witness should also give a
specific statement of his claim upon the money (Rutter v. Boyd, 3 Abb.
N. C. 6). The examination, under this phase of the case, is clearly
within the scope of the decision."
416
THE LAW OF ATTACHMENT.
Execution of the Warrant,
court or judge directs.' If the plaintiff desires to commence
the action in his own name in connection with that of the
sheriff, and through his own attorney, he may secure the per-
mission of the court or judge, stating therein that he has given
notice therefor to the sheriff. In such a case the action is
maintained in the name of the sheriff and the plaintiff jointly,
and at the plaintiff's expense. The sheriff is entitled to the
proceeds of the action, and is not liable for the cost and
expenses thereof; cost to the defendant in such action being
taxable against the attachment-plaintiff only. The court or
judge, before whom such application is made, may require
notice of the application to be given to the plaintiff in any
other warrant against the same defendant, and may impose
such terins, conditions and regulations in the order granting
leave, as may be proper for the due protection of the rights
and interests of all persons interested in the disposition of the
proceeds of the action. The plaintiff in the original action
may also within a reasonable time, after the sheriff has com-
menced suit individually, procure from the court or judge
leave to be joined with the sheriff as a party plaintiff under
the same terms and conditions imposed as above stated, where
the action was originally commenced by them jointly. The
court, however, will deny the application for laches in case of
an unreasonable delay in making it, or where it was made
before the commencement of the action, and such plaintiff
neglected or refused, without a good excuse therefor, to comply
with the terms, conditions, or regulations thus imposed.' The
plaintiff may also be compelled by the court to provide for the
expenses in the action incurred by the sheriff individually,
while he was sole plaintiff. The court or judge may also, upon
the application of the sheriff or the attachment-debtor, during
the pendency of such an action, give directions relating to the
conduct, discontinuance or settlement of the same, and the ap-
§ 675 Code of Civil Procedure.
$
§ 677 & 678 Code of Civil Procedure.
* § 679 Code of Civil Proceduro.
• Id.
PRACTICE.
417
हट्ट
Execution of the Warrant.
plication or disposition of the money or property recovered
therein.'
§ 482. Character and extent of the foregoing provisions.
Before such an action can be brought by the sheriff, either in-
dividually or jointly with the plaintiff, the sheriff must acquire
by levy an existing lien upon the debt due to the defendant
in the attachment proceedings, or to his property in the hands
of the third party, against whom such action is brought.'
Hence the action will not lie to create or declare a lien on a
fund, deposited in bank by a third person in his own name,
but in collusion with the defendant.' The Code does not au-
thorize the commence:nent of a creditors suit by the sheriff to
secure the proceeds of property fraudulently assigned by the
judgment-debtor, his authority being limited to such actions,
as the defendant himself could have brought in his own name."
Neither will the action lie against the assignee of choses in
action, that were transferred fraudulently by the attachment
debtor prior to the issue of the warrants as the sheriff cannot
by levy acquire any lien thereon.' The proper proceeding in
such cases is by creditors' suit after judgment has been recov-
ered in the original action, and execution thereon returned un-
satisfied. Where the attachment debtor has already com-
menced an action the sheriff may either continue the same in
his name or be substituted as plaintiff therein. The right to
discontinue cannot be exercised of the sheriff's own volition ;
it must be granted only on special authority from the
court, which will be refused, whenever, it appears that it
1
§ 680 Code of Civil Procedure.
* Lanning. Streeter, 57 Barb. 83.
* Greenleaf v. Mumford, 50 Karb. 543; Lawrence ». Bank of Republic,
85 N. Y. 320.
• Campbell . Eric R. R. Co., 46 Barb.; 540 Lawrence v. Bark of
Republic, 85 N. Y. 820.
• Thurber v. Blanck, 50 N. Y. 80, and see Rinchey v. Stryker, 28 N.
Y. 45; Kelly v. Downing, 42 N. Y. 71; Frost v. Mott, 34 N. Y. 253.
Russell v. Ruckman, 8 E. D. S. 419; O'Brien v. Glenville Woollen
Co., 50 N. Y. 123.
VCL. L-27
•
418
THE LAW OF ATTACHMENT.
Execution of the Warrant.
would jeopardize the final collection of the claim, as where a
second action would be barred by the Statute of Limitations.'
These provisions are statutory and must be strictly construed.
They will not warrant the court on motion, to grant an order
for the delivery to the sheriff of property held by a third party
for the benefit of the attachment debtor; the sheriff is limited
in such a case to an action in his own name or that of the
debtor for the recovery thereof.' The sheriff is not required
to state in the complaint the fact, that the suit was brought by
the direction of the court or judge, nor to specify his author-
fly beyond the allegation of the issuing of the attachment and
the levy thereunder upon the goods sought to be recovered.'
§ 483. The inventory. The New Code provides that im-
mediately after the levy, the sheriff must, with the assistance
of two disinterested freeholders, inake a description of the
real property, and a just and true inventory of the personal
property levied upon and of the books, vouchers and other
papers taken into his custody, stating therein the estimated
value of each parcel of real property attached, or of the inter-
est of the defendant therein, and of each article of personal
property, enumerating such of the latter as are perishable.
This inventory must be signed by the sheriff and the ap
praisers; and, within five days after the levy, must be filed in
the office of the clerk of the county where the property is at-
tached. This is a requirement oftener observed in the breach
than in the performance. Probably the records of the court
will not show one such inventory to one hundred attachments.
For the protection of the sheriff or the satisfaction of attach-
ment creditors an appraisement is often made by one or more
experts selected by the latter, but seldom in practice is this
done because required by statute. No regard is usually taken
of the requirement in relation to freeholders or as to filing
¹ Bower. Knickerbocker Ins. Co.,,14 W. Dig. 447; O'Brien «.
Merchant's Ins. Co., 16 Abb. N. S. 212.
• Hall v. Brooks, 2 N. Y. Civ. Pro. R. 198.
$ Kelly v. Breusing, 83 Barb. 123.
PRACTICE.
419
;
·
Execution of the Warrant.
•
the inventory. This requirement not being a provisional right
in the procurement of the warrant or in securing a lien there-
under, it cannot be considered as relating back so as to affect the
validity of cither the warrant or the levy. A valid lien once
secured by levy, can only be nullified in the incthods specified
by law and this is not one of them. It was evidently inserted
for the benefit of the plaintiff and enables him to secure its
enforcement by procuring an order requiring the same to be
filed, in case of failure to do so, and not by the loss of all his
own rights thereunder. The superior court, in the case of
McGinn v. Ross,' strongly intimated that the omission of this
requirement would not be fatal to the lien, and to my mind
the proposition is so clear as not to admit discussion or doubt.*
After it has been made and filed it may be, if incorrect, amend-
ed so as to correspond to the facts in the case, either by the.
insertion of property erroneously omitted' or by omitting
property inserted by mistake. The term "immediately" is lib-
erally construed by the courts. It does not necessarily mean
the day of the levy."
§ 484. Sale of perishable property. Where the property at-
tached by the sheriff is perishable, the court or judge may di-
rect him to sell it at public auction prior to the recovery of
the judgment. This order may be made ex parte, if the
urgency of the case demands it, except where the property
consists of live animals. It must specify the time and place
of sale and the manner and extent of the notice of such sale.
After deducting his expenses, as allowed by the court or judge
thr balance of the proceeds of the sale must be retained by the
sheriff under the same terms and conditions as the original
133 N. Y. Supr. 346.
The rule is well settled that an inventory is not indispensable to
the validity of a levy under execution. See Bond v. Willett, 31 N. Y.
102; Roth v. Wells, 23 N. Y. 471; Watts v. Cleaveland, 3 E. D. Sm. 553;
Weidensaulo. Reynolds, 49 Pa. St. 73; Pugh r. Calloway, 10 Ohio St.
489.
* Vanderheyden v. Gary, 38 How. 367.
• Greenleaf v. Mumford, 30 How. 30.
420
THE LAW OF ATTACHMENT.
M
Execution of the Warrant.
property would have been under in case the same had not
been sold.' This provision is applicable only to property,
which from its inherent nature is liable to decay or deterior-
ation in quality, such as fruit, vegetables, etc. Although ar-
ticles of merchandise, that are liable to become damaged by
the action of the atmosphere or otherwise, are within this rule
it will not extend to a possible depreciation of value on ac-
count of change of styles or fashions."
§ 483. Attachment of domestic vessels. The foregoing
provisions do not relate to vessels; they are governed by spec-
ial provisions of the Code. A domestic vessel, within the
Code definition, is one belonging to a port or place in United
States, and all the others are foreign. Where the former or
any share therein is attached, the court or judge, on the ap-
plication within 30 days, after the attachment of a person claim-
ing title thereto, or his agent, must appoint three appraisers
thereof who must thereupon make a written appraisement of
the property or interest attached, to be immediately returned
to the court or judge granting the order. The claimant or his
agent may within two days thereafter execute an undertaking
to the sheriff with one or more sureties, to be approved by the
court or judge, who must justify in double the amount of such
appraised value to the effect, that in case the claimant shall
fail in an action, to be brought on the undertaking to establish
that he was the owner of such property or interest at the time
of the levy thereupon, he will pay the amount of such valu-
ation with interest from the date of the undertaking, to the
sheriffs, or if the warrant is vacated or annulled will pay the
same to the defendant or his personal representative. The
court or judge must, as soon as such undertaking is given,
1 & 656 Code of Civ. Pro.
' Davis v. Ainsworth, 14 How. 846; Fisk ». Spring, 25 Hun, 867.
Fisk v. Spring, 25 Hun, 367.
§ 660 Code of Civ. Pro.
§ 681 Code of Civ. Tro.
§ 662 Code of Civ. Pro.
PRACTICE.
421
Execution of the Warrant.
make an order directing the vessel or share levied upon to be
discharged from the attachment, and thereupon the sheriff
must discharge the same.' As soon as the undertaking is
given, or the time has expired for furnishing the same, the
sworn appraisement must be delivered to the sheriff."
The court or judge may, upon the application of either party,
at any time before the warrant is vacated or annulled, direct
the sheriff to commence an action upon the undertaking, upon
such terms and conditions, and under such regulations between
him and the applicant, as it or he deems just. And if the
warrant of attachment is vacated or annulled, the defendant in
the attachment, his assignee or personal representative, may
commence and maintain an action upon the undertaking, or
may be substituted in place of the sheriff in an action pending
thereupon. The claimant is entitled to show, for the purpose
of having a recovery in such an action, that he was the owner
of the property, at the time it was levied upon, and, in case
he is defeated, the plaintiff will recover the amount of the
appraisement with interest from the date of the undertaking.*
§ 486. Attachment of foreign vessels. Where the levy is
made upon a foreign vessel, or a share or interest therein, the
sheriff must upon such notice of application, as the court or
judge shall deem reasonable, appraise the property in the same
manner as in case of domestic vessels," in which event the
plaintiff must, within three days of the return of the appraise-
ment, give an undertaking to the claimant, with one or more
Bureties, to be approved by the court or judge, who must jus-
tify in double the appraised value to the effect that they will
pay such damages, as may be recovered for seizing the prop-
erty so levied upon, in an action against the sheriff and the
plaintiff, in the attachment brought within three months from
§ 663 Code of Civ. Pro.
· § 661 Code of Civ. Pro.
8
$ 664 Code of Civ. Pro.
§ 665 Code of Civ. Pro.
* §§ 666, 667 Code of Civ. Pro.
422
THE LAW OF ATTACHMENT.
Execution of the Warrant.
the approval of the undertaking, if it appears therein that the
claimant was entitled to the property so attached at the date
of the levy.' The sheriff must, upon an order from the court
or judge therefor, vacate the levy, unless such an undertaking
is given.' If after the giving thereof, the warrant is vacated
or annulled, or the attachment is discharged, as to the vessel,
share or interest, the defendant or his agent is entitled to
claim the same, or the proceeds thereof, if it has been sold,
only upon his showing, to the satisfaction of the court or judge
that the undertaking has been discharged; or giving to the
plaintiff an undertaking with sufficient sureties, approved by
the court or judge, who must justify in twice the appraised
value, to the effect, that they will idemnify the plaintiff
against all charges and expenses in consequence of the under-
taking.'
§ 487. When vessel to be sold. If the undertaking of the
plaintiff is not discharged, or he is not indemnified, as pre-
scribed in this article, within one month after the defendant
becomes entitled to claim the vessel, share, or interest, as 60
prescribed, it may be sold by the sheriff, in whose custody it
is, upon an order of the court or judge, and the proceeds of
the sale must be paid to the persons, who executed the under-
taking for their indemnity If a claim is not made, by or
in behalf of an owner of a domestic vessel, or of a share or
intent therein, within 30 days after it is attached, or if the
proper undertaking is not executed by the claimant, or if a
claim is not made, within that time, by or in behalf of the
owner of a foreign vessel, or of a share or interest therein, the
vessel, share or interest, may be sold by the sheriff, under an
order of the court or judge upon the application of the plaint-
iff, if, in the opinion of the court or judge, a sale is neces-
§ 668 Code of Civ. Pro.
§ 669 Code of Civ. Pro.
§ 670 Code of Civ. Pro.
§ 671 Code of Civ. Pro.
PRACTICE.
423
Execution of the Warrant.
sary. Where a share or interest in a vessel, foreign or
domestic, is attached, if the proper claim to it is not made, by
or in behalf of an owner thereof, within 30 days thereafter, it
may be sold by the sheriff, under an order of the court or
judge, upon the application of a joint owner, or his agent.'
§ 488. Rule where two or more warrants issue against
the same vessel or share therein. Where a domestic vessel, or
a share or interest therein, has been attached, and afterwards
released, as prescribed in this title; or where the personal
property of a partnership, of which the defendant was a mem-
ber, has been attached, and the attachment afterwards dis-
charged, upon the application of another partner, the code
provides that another warrant, against the same defendant,
shall not be levied on the same property, by the sheriff of the
sarne or of any other county, until after the first warrant has
been vacated or annulled. But, except as thus prescribed,
where a second warrant, against the same defendant, is de.
livered to the same sheriff, he must execute it, by a levy upon
property within his county, and he must thereupon take the
same proceedings, as if the levy was made under the first war-
rant.'
Where a foreign vessel, or a share or interest therein, has
been attached and valued, as herein before specified, and it
appears that the plaintiff, in the first warrant of attachment,
fails to give an undertaking to prevent the release thereof, the
court or judge may grant to the plaintiff in a second warrant,
then in the sheriff's hands for execution, an extension, of not
more than three days thereafter, within which to furnish an
undertaking, in all respects like the one to be furnished by
the first plaintiff. And if he furnishes it, within that time,
he has the same rights and privileges, and is subject to the
same duties and liabilities, with respect to the vessel and its
§ 672 Code of Civ. Pro.
$ 673 Code of Civ. Pro.
$698 Code of Civ. Pro.
424
THE LAW OF ATTACHMENT.
Execution of the Warrant.
proceeds, and the subsequent proceedings relating thereto, as
if his was the first warrant.'
If a foreign vessel, or a share or interest therein, has
been attached, and afterwards released, by reason of the
failure of the plaintiff, in the first or the second warrant,
to give an undertaking to prevent the release, it shall not be
again attached, under a warrant against the same defendant,
which had been delivered to the sheriff of the same county,
before the expiration of the time within which the undertaking
should have been furnished. But it may be again attached,
under a subsequent warrant against the same defendant; in
which case, the plaintiff therein, and the plaintiff in each war-
rant subsequently delivered to the sheriff, have the same
rights and privileges, and are subject to the same duties and
liabilities, with respect to the vessel and its proceeds, and the
subsequent proceedings relating thereto, as if the warrant,
under which it was attached, was the first warrant.'
Where the plaintiff in a warrant of attachment has com-
menced an action, in the name of himself and the sheriff
jointly, as prescribed in this title, a plaintiff in a junior war-
rant may apply to the court or judge, to direct as to the con-
duct, discontinuance, or settlement of the same, or to impose
terms, conditions, and regulations as to the continuance thereof,
in the interest of the applicant; and such order may be made
thereupon, as justice requires. If the first warrant is vacated
or the attachment thereunder is released or discharged, with-
out affecting the cause of action prosecuted by the plaintiff
therein and the sheriff jointly, the plaintiff in the warrant
next in order, may, upon his own application, be substituted
as joint plaintiff with the sheriff, by an order, made as upon an
application for leave to bring such an action.'
A plaintiff in a second warrant may apply to the court or
judge, upon notice to the plaintiff in the first warrant, and to
the sheriff, for leave to bring and maintain, in the name of
1 § 701 Code of Civ. Pro.
• § 702 Code of Civ. Pro.
§703 Code of Civ. Pro.
PRACTICE.
425
Execution of the Warrant.
himself and the sheriff jointly, any action, which might be
brought in the name of the senior plaintiff and the sheriff. If
it appears that the plaintiff in the first warrant neglects or
refuses to be joined with the sheriff in such an action, or to
comply with the terms, conditions, and regulations, imposed,
either upon granting him an order for that purpose, or upon
the hearing of an application, made as prescribed in this sec-
tion, the court or judge may grant to the plaintiff in the
second warrant, leave to bring and maintain such an action, in
the name of himself and the sheriff jointly, with like effect,
as if his was the first warrant.'
Where there are more than two warrants of attachment,
against the same defendant, the plaintiffs in the third and
each subsequent warrant have, according to their respective
priorities, the same rights and privileges, as against the plaint-
iffs in all senior warrants, which the plaintiff in the second
warrant has, as against the plaintiff in the first, and are subject
to the same duties and liabilities; except that a second exten-
sion of the time, within which to furnish an undertaking to
prevent the release of a foreign vessel, or a share or interest
therein, shall not be granted. And the plaintiffs in two or
more junior warrants of attachment, may, by agreement among
themselves, take jointly, and for their common benefit, any
proceeding, permitted by this title, to be taken by the plaintiff,
in a second or subsequent warrant of attachment; provided
that it does not interfere with the preferential or other right
of an intermediate plaintiff."
§ 489. Attachment of goods on vessels. Section 652 of the
Code of Civil Procedure provides that, "the owner or master
of a vessel, on board of which goods of a defendant, against
whom a warrant of attachment is issued, have been shipped
for transportation, without reshipment or trans-shipment in the
state, to a port or place without the State, may transport and
deliver them according to their destination, notwithstanding
1 § 704 Code of Civ. Pro.
705 Code of Civ. Pro.
426
THE LAW OF ATTACHMENT.
Execution of the Warrant,
the warrant; unless the plaintiff, his agent or attorney, exe-
cutes to the owner or the master of the vessel, a written under-
taking, with sufficient sureties, in a sum specified therein, to
pay him all expenses, damages, and charges, which may be in-
curred by him, or to which he may be subjected, for unlading
the goods from the vessel, and for all necessary detention of
the vessel, for that purpose. The undertaking must be ap-
proved, with respect to its form, the sum specified therein,
and the sufficiency of the sureties, by a judge of the court, or
the county judge of the county wherein the vessel is situated,
or, in the city and county of New York, by a judge of a
superior city court within that city and county." But these
provisions will not apply, where the owner or master, before
the shipment of the goods, had actual information of the
granting of the warrant, or where he has, in any wise, con-
nived at, or been privy to, the shipment thereof, for the pur-
pose of screening them from legal process, or of hindering,
delaying, or defrauding creditors.
§ 490. Property to be levied upon. Corporations. We
have already fully considered (Chapters XVII. to XXII.) the
property of the attachment debtor subject to levy. In addition
thereto, the Code has special provisions in relation to corpora-
tions. Section 646 provides that where the warrant is issued
against a foreign corporation, the sheriff may levy upon the
sum remaining unpaid, upon a subscription to the capital stock
of the corporation, made by a person within the county; or
upon one or more shares of stock therein, held by such a per-
son, or transferred by him, for the purpose of avoiding the
payment thereof. The next section (647) applies to an action
against an individual, and authorizes the attachment of the
rights or shares which he may have in the stock of an associa-
tion or corporation, together with the interest and profits
thereon, and provides that the sheriff's certificate of the sale
thereof shall entitle the purchaser to the same rights and
privileges with respect thereto, which the defendant had when
they were so attached. This section clearly refers to property.
PRACTICE.
427
Execution of the Warrant.
the situs of which is within the jurisdiction of the court, and
of the sheriff to whom the warrant issued. It does not there-
fore permit, by service upon the resident.officer of a foreign
corporation, a levy upon the shares of stock held by the de-
fendant in such company. The rights or shares must be within
the county over which the court issuing the warrant has juris-
diction.' In the case of Smith v. American Coal Company
(17 Lans. 317), the Supreme Court held that after the defend-
ant transferred his stock to a third party as collateral security,
he had no longer a leviable interest therein, and that a sheriff's
sale of such stock would not carry any title to the purchaser,
even though the corporation had no knowledge of the assign-
ment, and by the charter it was only transferable on the com-
pany's books.
§ 491. Attached property to remain in the custody of the
sheriff. Subject to the provisions relating to perishable prop-
erty, and to vessels, herein before noted, the rule is general that
attached property, and the proceeds of the property sold as
perishable, or of demands, collected by the sheriff, must
remain in his custody to answer any judgment that may be
obtained against the defendant in the action,' or until the
attachment is discharged by undertaking, order of the court
or judgment. The sheriff's lien, while the property is so
held by him, constitutes a qualified or special title which
continues until merged in the new title of the purchaser
at sheriff's sale. This title or possessory right is sufficient
to enable him to maintain replevin, trover or trespass
against anyone depriving him of possession. Prior to the
1 Plympton v. Bigelow, 11 Abb. N. C. 180.
• See § 674, Code of Civil Procedure.
* See McKay v. Harrower, 27 Barb. 463; Rhoads . Woods, 41 Barb.
471; Dodge v. Porter, 13 Abb. 253.
• Lockwood v. Bull, 1 Cow. 822; Dezell v. Odell, 8 Hill, 215; Hotch-
kiss v. McVickar, 12 Johns. 403; Barker v. Miller, 6 Johns. 195; Barker
•. Bininger, 14 N. Y. 270; Lathrop v. Blake, 23 N. H. 46; Lowry v.
Walker, 5 Vt. 181; Perley v. Foster, 9 Mass. 112; Collins . Smith, 16
Vt. 9; Nichols v. Valentine, 86 Me. 322; Foulks . Pegg, 6 Nev. 186;
428
THE LAW OF ATTACHMENT.
Execution of the Warrant.
1
adoption of the New Code, the rule prevailed that the court
was powerless, while the warrant remains in full force, and
the responsibilities of the sheriff, or of his sureties, is not in
question, to remove the property from his custody, or to com-
pel him to place the avails thereof into court, or deliver the
same over to his successor. This rule is still in force, except
so far as it may be construed as abrogated by sections 675 and
676 of the Code of Civil Procedure. Section 675 authorizes
the court, either before or after the sheriff's term has expired,
upon application of either of the parties to the attachment, to
direct the sheriff to pay into the court or a designated bank or
trust company, the avails of property levied upon, to be drawn
out only upon the order of the court, and section 676 provides
that in case such avails exceed the aggregate of all the levies
in the sheriff's hands, the court may, on application of the
defendant or the person representing his interest therein, and
upon notice to the parties interested in the levies thereon,
make an order directing him to turn over such surplus to the
applicant, and to release from the attachment the remaining real
and personal property attached. The court may in a proper
case appoint a receiver of the attached property,' or apply a
portion of the rents collected by the sheriff to the payment of
the incumbrances thereon.'
§ 492. The necessity of retaining control of the attached
property is apparent when we consider the rule that an inten-
tional abandonment, or a voluntary yielding of possession and
custody to the defendant, will render the levy dormant, as to
subsequent purchasers, and persons holding junior levies
thereon. This doctrine, while prevailing throughout the New
Ladd v. North, 2 Mass. 514. This right extends to the personal repre-
sentatives of the sheriff for the benefit of the attachment creditor (Hall
v. Walbridge, 2 Aik. 215), but is sufficiently personal in its nature as
not to include such creditor. Skinner v. Stuart, 89 Barb. 206.
¹ Dodge v. Potter, 13 Abb. 253; McKay'v. Harrower, 27 Barb. 463.
* Sheban v. Mahar, 17 Hun, 129.
Fitzgerald . Blake, 28 How. 109.
• Fitch v. Rogers, 7 Vt. 403; Boynton ♥. Warren, 99 Mass. 173;
PRACTICE.
429
Execution of the Warrant.
England states, must be accepted with some caution and with
certain limitations. There is no reason why the rule should be
any different from that prevailing in execution levies. It is
well settled in the latter case, that the lien of an execution will
not be lost without the plaintiff interferes and directs that the
property be left with the defendant, or the use and control
thereof by him has been so long continued as to create a pre-
sumption that the conduct of the officer was prompted or rati-
fied by the plaintiff. The fact of leaving the property with
the defendant for a reasonable period, while it may raise pre-
sumptions, which, taken with other circumstances, might
evidence a secret levy or an intent to hinder delay and defraud
creditors,' will not, in most states, be considered in itself as
objectionable, provided, as between the officer and the defend-
ant, the latter holds the same subject to the levy. The officer
is not required to take personal charge of the property, and
there is no statute law that prevents him from making the
defendant his keeper, if he reposes confidence in him, or con-
siders him pecuniarily responsible for any damage resulting
from a betrayal of his trust. No harm could come in such a
case to the plaintiff, as the sheriff is responsible to him for the
value of the property attached. The fact that the defendant
has all the insignia of ownership of the property does not em-
power him with the right of sale, and while a bona fide pur-
chaser for value, without notice of the levy, might acquire title
as against the attachment creditor, it is doubtful, except in
the New England States, whether a subsequent attachment
Taintor v. Williams, 7 Conn. 271; Nichols ». Patten, 18 Me. 231; Chad-
bourne ». Sumner, 16 N. H. 129; Sanford v. Bonner, 12 Cal. 8. P. in
execution.
¹ Freeman on Executions, 417; Dickenson v. Cook, 17 Johns. 332;
Kellogg . Griffin, 17 Johns. 274; Westervelt o. Pinckney, 14 Wend.
123; Russell. Gibbs, 5 Cow. 390; Ray v. Harcourt, 19 Wend. 495; Van
Wyck v. Pine, 2 Hill, 666; Copley v. Rose, 2 N. Y. 115; Roth v. Wells,
29 N. Y. 471; Bond v. Willett, 31 N. Y. 102; United States v. Conyng-
ham, 4 Dall. 358; Lewis v. Smith, 2 8. &. R. 142.
* Dunkler . Fales, 5 N. H. 527; Gower v. Stevens, 19 Mc. 92;
Flanagan . Wood, 33 Vt. 832; Baker o. Warren, 6 Gray, 527.
430
THE LAW OF ATTACHMENT.
Execution of the Warrant.
would gain priority over the prior one in that event. It cer-
tainly would not render the senior levy dormant as to junior
levies made by the same officer, unless the plaintiff in the
firet attachment was a party to the transaction. While it is
true, as a general rule, that the property levied should be put
out of the control of the debtor,' yet it is equally true, that it
cannot be said to be subject to his control, if he cannot lawfully
sell or use it without the permission of another; in other words,
if he holds possession as a bailce of the sheriff, and not of his
own right.
§ 493. The nature of the possession and custody which an
officer is to keep, will depend upon the nature and position of
the property, as ships, rafts, piles of lumber, masses of stone,
or lighter, more portable and more valuable goods. In general,
it may be said that it shall be such a custody as to enable an
officer to retain and assert his power and control over the prop-
erty, so that it cannot well be withdrawn or taken by another
without his knowledge. Under the strict ruling of the New
England courts the property must not be restored to the real
or apparent custody of the defendant. There must be an
actual delivery and continued change of possession,' although
it permits the defendant's wife to become a keeper,* (in which
case it is plain that the change of possession is really construc-
tive) or his friend or employee, with permission to the defend-
ant to use so much thereof as is not subject to deterioration
by use." If the property attached is in the custody of the
officer or his keeper, the levy is not affected by its being tem-
porarily without his jurisdiction, or that of the conrt,* but the
'Bryant v. Osgood, 52 N. H.
• Hemmenway v. Wheeler, 14 Pick. 411; see also Nichols . Patten,
18 Me. 231; Boynton . Warren, 99 Mass. 172.
Burrows v. Stoddard, 8 Conn. 160; Sanderson v. Edwards, 16 Pick.
144; Nichols v. Patten, 18 Me. 231.
• Gower v. Stevens, 19 Me. 93.
• Baldwin v. Jackson, 12 Mass. 181.
• Brownell v. Manchester, 1 Pick. 832.
PRACTICE.
431
Execution of the Warrant.
rule is different if it is sent out of the state permanently for
sale or otherwise.'
494. Sheriff's liability in respect to the property while in
his custody. On account of the length of time that property
usually remains in the hands of the sheriff, the courts have
sometimes suggested the reason for a less degree of diligence
than is required in the case of property held under execution.'
But the tendency of a majority of the modern decisions is to
place them on the same footing, and to require, in either case,
only that degree of care in keeping property which an owner
of ordinary prudence and sagacity would exercise in preserving
like property.' Being a quasi bailee, and receiving compen-
sation, he is under the rules applicable to bailees for hire in
this respect. In the case of Moore v. Westervelt (21 N. Y.
•
'Dick v. Bailey, 2 La. An. 974.
See Jenner v. Joliffe, 6 John. 9; Bridges v. Perry, 14 Vt. 262.
• Freeman on Executions, § 270; Moore v. Westervelt, 27 N. Y. 234;
Briggs v. Taylor, 28 Vt. 180; Parrot v. Dearborn, 104 Mass. 104; State
v. Nelson, 1 Ind. 522; Starr v. Moore, 3 McL. 354; McKinney v. Craig,
4 Sneed, 577.
• Herman on Executions, § 177. In Bridges v. Perry (14 Vt. 262),
the Supreme Court of Vermont, on this point, say: "So far as the
general principles of the law of bailment are concerned, there is not, at
the present day, perhaps, any very striking reason to be urged, why
sheriffs should be laid under any higher degree of obligation in regard to
keeping property, than other bailees for pay,—i. e., ordinary care and
diligence.
If we hold the sheriff and other officers liable, in
the case of officers attached on mesne process, only for ordinary care and
diligence, such as other bailees, for pay, are required to exercise, we
place the liabitity upon a reasonable basis; whereas the rigorous
accountability, upou certain classes of bailces, on account of some sup-
posed facility or temptation, which they have been said to possess for
collusive rescues or robberies, is not founded upon any just warrant,
either of sound judgment or constant experience." As to the meaning
of the term "ordinary care and diligence," as used in the foregoing
opinion, a later decision (Biggs v. Taylor, 23 Vt. 180), expresses it as
referring to the diligence of prudent and careful men; not of those
below mediocrity in handling their own affairs, and that "no one is
expected to go very essentially beyond the common custom of the country
+
432
THE LAW of ATTACHMENT.
Execution of the Warrant.
103) the question arose as to the liability of the sheriff in the
case of goods replevied by him, and left in the custody of the
defendant pending an examination of the plaintiff's sureties,
on board schooner, a which capsized, damaging the property.
The query arose as to the party responsible for the loss. The
superior court held as a question of law that the sheriff was
liable on the ground that when he takes possession of personal
property under service of legal process, he is only bound to
ordinary care and diligence in its custody. But if he leaves
the property in the hands of the defendant in the action, he
becomes the insurer of it to the plaintiff, and nothing will
excuse him in the event of a less but the act of God or the
public enemies. The decision was reversed in the court of
appeals,' on the ground that it was a question of fact and not
of law, and should have been submitted to the jury. Upon
the point in question, the court intimated that the general rule
as to ordinary diligence, stated the doctrine somewhat too
faintly, that the sheriff was an officer whom the party was
compelled to employ, and was clothed with a public trust.
The doubt, therefore, was not whether the officer is bound to
take ordinary care, but whether he ought not to be held to a
somewhat higher degree of diligence. The court did not pass
directly upon the query as to whether the fact of leaving the
property in the defendant's custody made him liable per se for
any consequent loss, for the reason he was justified in the case
at bar in leaving the property on board the vessel in which it
was found at the time of the seizure, as he could not safely
deliver it to the plaintiff until the sureties had justified, and
until then he was not bound to incur the expense of actual
removal from the vessel. IIence it was necessary to show
some degree of negligence on the sheriff's part other than the
fact of omitting such a removal. But the general rule is well
established as before stated. Under it the sheriff is not liable
for losses by theft, robbery, fire or other accident while using
in that respect, as a question might arise as to the propriety of incurring
such expense.'
"9
21 N. Y. 103.
PRACTICE.
433
Execution of the Warrant.
ordinary diligence in the preservation of the property levied
upon.' But nothing short of sudden accident without fault,
the act of God or the public enemy, should be permitted to
justify the non-production of the attached property for the
eventual satisfaction of the plaintiff's claim. He cannot be
excused where the loss results from his own negligence,' as he
assumes a position that requires the exercise of diligence, or
from a rescue by superior civil force, as he has the authority
to summon the power of the county to his aid. The right to
keep the property attached does not carry with it the right to
its use. In Vermont the courts impliedly permitted the use
of property covered by the levy in such a manner as not to
decrease its value,' but have, at the same time, suggested that
the rule should not be extended, and where it was shown
that the property was mistreated, as where he so cruelly over-
worked a horse as to injure it, have held him liable ab initio
as a trespasser.'
§ 495. Property delivered to a receiptor. There is a
custom that seems to be limited to New York and the New
England States, which permits the property immediately after
the levy, to be placed in the hands of a third party, often a
1 Browning . Hanford, 5 Den. 586; Mitchell. Commonwealth, 87
Pa. St. 187; Donnan v. Kane, 5 Allen, 38; Stewart o. Nunnemacher, 2
Ind. 47. But in Georgia the officer is not allowed to excuse his failure
to produce the property by the plea that it was stolen. Gilmore v. Moore,
80 Geo. 628.
Hartleib. McLane, 44 Pa. St. 510.
• Moore v. Westervelt, 27 N. Y, 234.
Mildmay . Smith, 2 Saund. 844; Sly v. Finch, Cro. Jac. 514;
Snell v. State, 2 Swan, 344.
So applied where the officer had worked a horse that had been
levied
upon, sufficient to pay for its keeping (Dean v. Bailey, 12 Vt. 144),
or to remove articles levied upon under the same warrant. Paul .
Blason, 22 Vt. 231.
• Lamb v. Day, 8 Vt. 407.
'Briggs v. Gleason, 29 Vt. 78; Collins . Perkins, 31 Vt. 624.
28
434
THE LAW OF ATTACHMENT.
Execution of the Warrant.
friend or employee of the defendant, as a keeper.' The person
who takes the same usually gives the sheriff a receipt therefor,
and has thus come to be distinguished as a receiptor. The
procedure is not the result of any special statute, and is
governed by no fixed rules. It simply creates the receiptor,
the bailee or depositary of the officer. In law, his possession
is that of his bailor or principal. The goods are still under
the custody of the law, and the special title that enables the
sheriff in possession to maintain trespass, trover or replevin,
against all third persons, including the parties to the action,
passes to the receiptor by necessary implication of law, and
enables him to assert his rights in the same manner, and in
his own name.' The decisions are not harmonious on this
point, however; it having been held in Vermont that the
sheriff, notwithstanding the receipt, may maintain trespass in
such a case,' and some of the earlier decisions in Massachusetts
and New York have extended this principle so far as to deny
the existence of any special title in the receiptor, and conse-
quently of any power on his part to sue for the injury or con-
version of the property. The difference is one of relation
only. It grows out of question as to whether the receiptor
can be properly characterized as the bailee or as the agent of
the officer. In the former case he has a species of property
'Miller v. Adsit, 16 Wend. 335; Hoyt ». Hudson, 12 Johns. 207;
Dewey v. Fay, 84 Vt. 138; Paul v. Burton, 82 Vt. 148; Cross v. Brown,
41 N. H. 283; Fowler v. Bishop, 81 Conn. 560; Plaisted v. Hoar, 45 Me.
380; Hinckley v. Bridgeman, 46 Me. 450; Jewett v. Torrey, 11 Mass.
219; Hartshorn v. Ives, 4 R. I. 471; Brown v. Gleed, 83 Vt. 147; Clem-
ent v. Little, 42 N. H. 563; Cross v. Brown, 41 N. H. 283.
• Runlet. Bell, 5 N. H. 43%.
• Terwilliger o. Wheeler, 85 Barb. 620; Miller v. Adsit, 16 Wend. 835;
Com. Bank of Pennsylvania v. Union Bank of New York, 19 Barb. 891,
899; Poole v. Symonds, 1 N. H. 289; Whitney . Farwell, 10 N. H. 9;
Thayer . Hutchinson, 13 Vt. 504; Burrows v. Stoddard, 8 Conn. 160.
• Soue v. Austin, 85 Vt. 515.
• See Ludden v. Leavitt, 9 Mass. 104; Whitter . Smith, 11 Mass.
211: Norton v. People, 8 Cow. 187; Dillenback v. Jerome, 7 Cow. 294.
PRACTICE.
435
Execution of the Warrant,
in the subject of the levy. In the latter case (in which he is.
really a keeper rather than a receiptor) he has not.
§ 496. The duty of the receiptor is to use reasonable care
in the preservation of the property, and to turn it over on
demand to the officer. His liability is to the officer appointing
him, and like such officer to his principal he is only held to an
ordinary degree of diligence in his trust.' He has the power at
any time to relieve himself from further responsibility by
turning the property over to the officer; his rights in this
respect being similar to that of bail on arrest. This relation-
ship can also be terminated at will by the officer; and in case
the property is not returned on demand, he may elect either
to retake it, or sue immediately upon the receipt. The liability
of the officer for the acts of the bailee assimilates to that for
his own acts if he had held the property. He is not required
to place the property in the temporary custody of another. If
he sees fit to do so, and appoints an unfaithful, negligent, or
irresponsible person, and the property is lost through his
infidelity or carelessness, he will, in turn, be responsible for
the value of the property. Of course, if the receiptor is
selected or approved by the plaintiff, he virtually becomes the
agent of the latter and the sheriff will not be responsible for
his acts, nor liable for the loss of property through him,
¹ Cross v. Brown, 41 N. H. 283.
• Merrill v. Curtis, 18 Mc. 272; Bond . Padelford, 13 Mass. 894.
• Dezell v. Odell, 3 Hill, 215; Rood v. Scott, 5.Vt. 263; Page v.
Thrall, 11 Vt. 230; Briggs v. Mason, 31 Vt. 433; Scott v. Whittemore,
27 N. H. 309; Whitney . Farwell, 10 Id. 9; Bond v. Padelford, 13
Mass. 894. Where the property was placed in the hands of a receiptor
by a deputy sheriff. Either the sheriff (Smith v. Wadleigh, 18 Me. 95;
Davis o. Miller, 1 Vt. 9; Baker v. Fuller, 21 Pick. 818) or such deputy
(Hutchinson v. Parkhurst, 1 Aik. [Vt.] 258; Spencer v. Williams, 2 Vt.
209; Maxfield v. Scott, 17 Vt. 634), may maintain suit against him
thereon.
* Donham v. Wild, 19 Pick. 520; Pierce v. Strickland, 2 Story, 292;
Gilbert v. Crandall, 84 Vt. 188; Johnson v. Edson, 2 Aik. 299.
* Jenney v. Delesdernier, 20 Me. 183; Farnham v. Gilman, 24 Id. 250;
436
THE LAW OF ATTACHMENT.
Execution of the Warrant.
except, perhaps, where the sheriff is in culpable laches for
delay in prosecuting his rights against him.'
§ 497. The receiptor's liability as affected by the terms of
the receipt. It is not necessary that there should be any
receipt or memorandum in writing at the time the bailment of
the attachment property is created. But if made, its character
governs the nature of the contract and materially affects the
receiptor's rights and liabilities. Ordinarily it is a mere
acknowledgment of the receipt by him of certain attached
property, which he agrees to return to the sheriff on demand.
The effect of a simple receipt of this character is the same as
if the contract was oral, or arose by implication of law. The
title of the case should be specified to connect the transaction
with the levy, and it is well to specify the value of the goods, if
it is desired to hold the receiptor personally for such value in
case of a default in producing the property. The receipt some-
times reads in the alternative, requiring the production of the
property or the payment of a specified valuation or the amount
of the attachment and costs, or the loss sustained by the officer
in case such property should not be returned on demand. This
provision does not give to the receiptor the right to construe
the transaction as a conditional sale or as conferring upon him
the power of sale as the officer had no authority to make any
disposition of the property, other than for its safe keeping.'
It does not, in fact, change the relationship of the parties or
Donham v. Wild, 19 Pick. 520. But the rule is otherwise in New Hamp-
shire, where the courts hold that liability of the officer ceases where he
personally uses ordinary business caution in the selection of a receiptor.
Runlett v. Bell, 5 N. H. 433; Bruce v. Pettengill, 12 N. H. 541; Barron v.
Cobeleigh, 11 N. H. 557.
1 See Pierce v. Strickland, 2 Story, 292.
• Page v. Thrall, 11 Vt. 230. But in Maine the courts hold that
where the alternative requires the payment of a specified sum, it is
virtually an abandonment of the possession by the sheriff which renders
the attachment dormant and void, and transfers the property to the
receipter. Waterman è. Treat, 49 Me. 809.
PRACTICE.
437
Execution of the Warrant.
mediate the strict requirement of a safe return of the property.'
Its only effect is to fix the extent of the liability in case of non-
delivery.
$498. What detenses are available to the receiptor. The
demand. Whether the transaction be deemed an agency or a
bailment, it is plain that the receiptor is not liable in an action
for replevin or trover until there has been an actual conversion
by him of the property placed in his charge. While he still
retains possession or control of the property, and no absolute
deinand has been made, he may set that up as a defense."
Ordinarily it is the refusal or neglect to deliver, within a
reasonable time after demand, that constitutes the conversion.'
But demand need not be shown where there is a failure to
return the property within a period specified in the receipt or
agreed upon between the parties; nor where the receiptor has
willfully placed it beyond his control by sale, or otherwise, or
has returned it unconditionally to the defendant ;* such a dis-
position of the property in either case being per se a conver-
sion thereof. To constitute a valid demand it should be shown
that the receiptor knew that the demand was made by or on
behalf of the sheriff, and that its true object was brought at
the time to his notice.' He is not bound to take notice of the
authority of other officers, to have the possession of it, until it
is distinctly made known to him. Any stranger who calls for
a delivery of the property without making known the authority
he has received may be treated as a person without authority."
Neither is he to be held responsible for neglecting to act where
1 Anthony. Comstock, 1 R. L. 454; Sibley v. Story, 8 Vt. 15.
Bacon . Thorp, 27 Conn. 251.
• Gilmore D. McNeil, 46 Me. 532.
* Wentworth v. Leonard, 4 Cush. 414; Shaw . Laughton, 20 Me.
266; Hodskin v. Cox, 7 Cush. 471.
'See Drake on Attachment, § 873; Webster v. Coffin, 14 Mass.
196.
⚫ Cross ⚫. Brown, 41 N. H. 283; Davis v. Miller, 1 Vt. 9.
Phelps v. Gilchrist, 8 Foster, 266.
• Id.
438
THE LAW OF ATTACHMENT.
Execution of the Warrant.
he has not been fully appraised as to the character of the
request. No inference is to be drawn against a man, from his
silence or inaction, unless it appears that he was aware of what
was said or done to effect his interest. For this reason the
demand should be personal, or at the least brought home to his
personal notice. It is a call by a person authorized to receive
property for its delivery, to be made upon the person who is
bound to make such delivery. It must be such that the per-
son required to deliver the property may at once discharge
himself by yielding to the claim and giving it up. Leaving a
notice at a party's house is not of such a character. It gives
no immediate opportunity to do what is demanded, and may
not come to his actual notice.' This rule is questioned in
Massachusetts,* on the ground that the receiptor should always
be ready at his house or place of business to deliver the goods,
as he cannot be supposed to carry them about with him; a
notice served there, even in his absence, is held to be prefer-
able to one made elsewhere upon him personally.
$499. The same. Other defenses. It has long been a
mooted question in the courts of this country as to how far,
and under what circumstances, the receiptor could raise the
issue of title in an action brought against him by the sheriff
for the failure to return the goods on demand. The courts in
New York state have uniformly held that he had no power to
deny the title of his bailor.'
There is a marked distinction between the case of a receiptor
setting up title in himself, and that where the claim is made
in favor of a third party, to whom the property has been de-
livered. The rule is general, that, where the receipt expressly
states the ownership of the goods to be in the defendant, the
1 Phelps. Gilchrist, 8 Foster, 266; Sanborn . Busnell, 51 N. H.
573.
• Mason ♥. Briggs, 16 Mass. 353; Moore v. Farge, 112 Mass. 254.
• Dezell . Odell, 8 Hill 215; Burrall, . Acker, 23 Wend. 606;
People v. Reeder, 25 N. Y. 802; Cornell v. Dakin, 88 N. Y. 253.
PRACTICE.
439
Execution of the Warrant.
receiptor is estopped thereby from alleging title in himself.'
But this rule only applies as between the original parties to
the receipt, and during the continuance of the contract; it
does not prevent the receiptor from claiming title in a suit
brought by the attachment debtor personally, nor after the
goods have been returned to the officer does it prevent a
replevin suit against him for the return of the same.' It seems
that where the officer knew at the time of placing the prop-
erty in the hands of the receiptor, he made a claim thereto in
his own right, he will not be prevented from asserting such
claim as a defense to the subsequent action against him by the
sheriff." It may also be shown in defense to the sheriff's
action against the receiptor for the recovery of the goods or
their value, that they have come into the possession of any
person other than the receiptor who is the owner and entitled
to the possession thereof. But he cannot be permitted to
show a delivery to any person, other than the true owner, even
though the defendant, in the attachment suit, and from whom
the property was received by the sheriff, had, in fact, no
title to the property, and could not maintain an action against
the sheriff for the return thereof. This rule is founded on the
theory, that the sheriff, having once acquired forcible posses-
sion to property that he was not entitled to receive, is liable ·
in damages to the real owner, and is therefore entitled to
a return of the goods."
In the case of the attachment of exempt goods the sheriff -
¹ Drew ». Livermore, 40 Me. 266; Robinson v.. Mansfield, 13 Pick.
139; Potter . Sewell, 54 Me. 142; Dewy v. Field, 4 Metc. 881.
• Barron v. Cobleigh, 11 N. H. 557.
Lathrop . Cook, 14 Me. 414; Johns. Church, 12 Pick. 557.
♦ Bleren v. Freer, 10 Cal. 172; Bursley v. Hamilton, 15 Pick. 40;
Jones v. Gilbert, 13 Conn. 507; Adams v. Fox, 7 Vt. 361.
|+
• Barron v. Cobleigh, 11 N. H. 557; Morse v. Hard,. 17 N. H. 246;
Learned. Bryant, 13 Mass. 224; Burt v. Perkins, 9 Gray, 817; Dayton
v. Merritt, 23 Conn. 184; Lathrop v. Cook, 14 Me. 414; Fisher v. Bart-
lett, 8 Greenl. 122; Stanley v. Drinkwater, 43 Me. 468; Clark v. Gaylor,
24 Conn. 434.
• Scott v. Whittemore, 7 Fost. 809; Fisher v. Bartlett, 8 Me. 122.
440
THE LAW OF ATTACHMENT.
At th
· Execution of the Warrant.
·
is not liable to the plaintiff, if the goods are returned to the
defendant. It follows, that if the receiptor delivers the same
to the defendant, he can set up that fact in defense to a suit
against him by the sheriff. This rule has been held inapplic-
able where the receipt specially states, that on default in the
return of the property to the sheriff, the receiptor will pay
to him on demand the amounts of the debt and costs, which
should be recovered in the action. In such case the under-
taking of the receiptor is of such nature, that the plaintiff
acquires an equity, that can be enforced, without regard to
the question as to whether the property so delivered to the
receiptor was properly attached. The sheriff being liable to
the plaintiff, the receiptor in turn is liable to him. The
receiptor is estopped from denying the validity of the judg-
ment in the attachment suit, the regularity of the attach-
ment, the title of the de facto sheriff from whom he received
the goods,' the fact that such goods were delivered to him,
or that the sheriff took possession of the goods under the
attachment, but procured the receipt without an actual levy
on the goods.' Nor can he set up that the defendant was
discharged in bankruptcy after judgment had been recovered
against him." Nor an arrangement between the parties in the
attachment suit, that the receiptor should not be held liable
thereon.
1 Dheyer . Hunt, 2 Allen, 449; Harmon v. Moore, 59 Me. 428.
• Steevens v. Steevens, 89 Conn. 474; Bacon v. Daniels, 116 Mass.
474.
* Brown v. Atwell, 81 Me. 851.
• Drew o. Livermore, 40 Me. 266.
Taylor . Nichols, 19 Vt. 104.
Spencer. Williams, 2 Vt. 209.
Phillips. Hall, 8 Wend. 610; Hawes v. Speer, 23 Vt. 508; Jewett
v. Torry, 11 Mass. 209; Webb ». Steele, 23 Vt. 508; Bawley v. Angira,
49 Vt. 41.
• Lamprey v. Leavitt, 20 N. H. 544; Smith v. Brown, 14 N. H. 67.
• Ives v. Hamlin, 5 Cush. 534.
PRACTICE.
441
Execution of the Warrant.
§ 500. Rule of damages in actions against the receiptor.
The value of the property is usually stated in the receipt, and
when this is the case, each of the parties to it is estopped from
proving any different valuation, whether the action be in
assumpsit or in tort! And where each of the separate articles
are specified, and a portion thereof has been returned, the
damages will be fixed at the aggregate sum represented by
such valuation of the missing property. Of course the sheriff
cannot secure a recovery beyond the extent to which he is
under a legal liability to others on account of the property in
the receiptor's possession. He may in a proper case, recover
the actual damages he has sustained, or is liable to sustain, on
account of the non-return, but that is the limit; otherwise
the action would transform itself into a private speculation for
his personal benefit.' Where there is no amount specified in
the receipt, and the sheriff is liable either to the plaintiff, the
defendant or to a third party for the return of the goods, he
may recover their full value from the receiptor either on the
contract for failure to return the same, or in tort, for their
conversion.*
§ 501. The nature and extent of the sheriff's liability to
the plaintiff for a failure to apply upon the execution property
in the defendant's possession during the life of the warrant. If
the sheriff, after due diligence in the prosecution of his writ,
fails to discover any property of the defendant, he may properly
return it nulla bona. If, however, under a valid warrant, he
has levied upon leviable property of the defendant, or the
latter has such property in open and visible possession, or
which has been pointed out to him, or which he might with
1 Smith v. Mitchell, 81 Me. 287; Jones v. Gilbert, 13 Conn. 507;
Parsons. Strong, 18 Vt. 235; Drown v. Smith, 8 N. H.
• Remick o. Atkinson, 11 N. H. 256.
• This rule limits the recovery to nominal damages whenever the
sheriff's liability ceases. Moulton v. Chapin, 28 Me. 505; Seward v. Platts,
20 N. H. 476; Paddock v. Palmer, 19 Vt. 581.
• Catlin v. Lowrey, 1 D. Chip. (Vt.) 896; Bissell ». Huntington, 3
N. H. 142; Cross v. Brown, 41 N. H. 283.
442
THE LAW OF ATTACHMENT.
Execution of the Warrant,
the exercise of reasonable diligence have found, and he fails
to apply the same upon the execution subsequently recovered,
he will be held personally liable to the plaintiff for the actual
damages sustained in consequence thereof.' This rule, how-
ever, must be taken, subject to the exceptional cases of less
of or damage to the goods, while in the officers custody, and
without any fault or negligence on his part as herein before
considered. It also assumes that the warrant was valid on its
face, for if void, either by apparent want of jurisdiction in the
officer granting it, or so defective in form as to be absolutely
void, it may be treated as a nullity. As it would afford him
no protection, he is not bound to act, and his refusal to attach
or retain property thereunder is justifiable. The same rule
applies where the property pointed out to the officer is not
subject to levy under attachment, or where it is in the pos-
session of a third party, or claimed by him, and the sheriff's
jury finds in favor of the claimant, and the plaintiff in either
case refuses to give a bond of indemnity. In estimating the
damages to the plaintiff in such a case, the return made by
the officer, if any, upon the warrant may be taken into con-
sideration, the valuation therein stated being presumptively
the true value of the property. This presumption, being, con-
fessedly, a matter of opinion, may be rebutted, by showing
the true value of the property,' unless the plaintiff has been
misled to his disadvantage, by a reliance upon the officer's
statement, as originally made.'
§ 502. Priority among successive writs. Where several
successive writs come into the hands of the officer, prior to
making au actual levy, he must execute them according to the
date of receipt. The rule of qui prior est tempore potior est
512.
¹ Sedgwick on Damages, § 539; Drake on Attachment, § 309.
'Denton . Livingston, 9 Johns. 96; French . Stanley, 21 Me.
• Allen v. Doyle, 83 Me. 440.
• Yale o. Matthews 12 Abb. 879; Walker o. Anderson, 81 Tex. 646;
Bragg v. State, 80 Ind. 427; Rust . Pritchett, 5 Harr. 260; Knox v.
Webster, 18 Wis. 406.
PRACTICE.
443
Execution of the Warrant.
jure, works here in full force and effect, and often inequitably,
as in the case of property discovered by the junior attachment
creditor, which must apply to the payment of writs having
seniority in time. Section 697 of the Code of Civil Procedure
provides that, where two or more warrants of attachment,
against the same defendant, are delivered to the sheriff of the
same county, to be executed, their respective preferences, and
the rules, where a levy, or a levy and sale, have been made
under a junior warrant, are the same, as where two or more
executions, against the property of the same defendant, are
delivered to the sheriff of the same county, to be executed.
§ 503.
In relation to executions the Code provides that,
where two or more executions against property are issued, out
of the same or different courts of record, against the same
judgment debtor, the one first delivered, to an officer, to be
executed, has preference, notwithstanding that a levy is first
made, by virtue of an execution subsequently delivered; but
if a levy upon and sale of personal property has been made,
by virtue of the junior execution, before an actual levy, by
virtue of the senior execution, the same property shall not be
levied upon or sold, by virtue of the latter.' Where there are
one or more executions, and one or more warrants of attach-
ment, against the property of the same person, this rule pre-
vails, in determining the preferences of the executions or war-
rants of attachment; the defendant in the warrants of attach-
ment being, for that purpose, regarded as a judgment debtor."
But an execution, issued out of a court not of record, or a war-
rant of attachment, granted in an action pending in a court not
of record, if actually levied, has preference over another execu-
tion, issued out of any court, of record or not of record, which
has not been previously levied.'
§ 504. Loss of priority. There is one elemental distinction
1 Section 1406 Code of Civil Procedure.
• Section 1407 Code of Civil Procedure.
• Section 1408 Code of Civil Procedure. .
444
THE LAW OE ATTACHMENT.
Execution of the Warrant.
between the lien of an attachment and that of an execution :
to wit, the latter becomes dormant and loses its priority, if the
plaintiff sleeps on his rights, and directs the officer not to sell
thereunder, or otherwise interferes with the due prosecution
of the process.' This rule proceeds upon the theory that as the
only office of an execution is the immediate sale of the defend-
ant's property, the lien cannot be retained when it becomes
apparent that it was issued for any other purpose, as it would
become a block in the way of junior execution creditors, who
are desirous of enforcing their claims in a legitimate manner.
But the reasoning does not fully apply in the case of attach-
ments. There the levy is made for the sole purpose of securing
and retaining a lien. In such a case dormancy is the normal
condition of things. The lien once acquired, and control of
the property secured, the lien sleeps, until awakened into
activity by the issuing of execution. It is evident therefore
that the Code provisions similating the priorities among attach-
ment creditors to the rules governing executions, will not fully
apply to the case of dormancy. But while delay is the usual,
it is only one of several indiciæ of dormancy. Whenever
it appears that an execution is issued or after being issued, is
used for any purpose other than the satisfaction of the judg-
ment by the sale of the defendant's property, in the manner
provided by law, it is a fraud on the rights of junior execution
creditors, who seek to enforce their rights in conformity with
the law. This frand, as to such creditors, vitiates the statutory
priority. The prior execution, under such circumstances, is
termed "dormant," because delay is the most usual evidence
of the fraud. But any fraudulent use of the process, whether
by way of a cover or for the benefit of the debtor, or by per-
'Kellogg v. Griffin, 17 John. 274; Knower v. Barnard, 5 Hill, 877;
Ball. Shell, 21 Wend. 222; Rew v. Barber, 8 Cow. 272; Russell v.
Gibbs, 5 Cow. 390: Herkimer Bank . Brown, 6 Hill, 232; Ross v.
Weber, 26 Ill. 221; Slocomb v. Blackburn, 18 Ark. 309; Wise v. Darby,
9 Mo. 131; Albertson v. Goldby, 28 Ala. 711; Truitt e. Ludwig, 25 Pa.
St. 145; Mickie . Planters' Bank, 4 How. Miss. 180; Berry v. Smith, 8
Wash. C. C. 60.
PRACTICE.
445
Execution of the Warrant.
¹ 24 Vt. 228.
* 4 Abb. 893.
mitting an illegal disposition of the property, will answer the .
saine purpose, and will be equally fatal. This branch of the
case is specially applicable to attachments. Where the prior
execution creditor consents to a sale of the property levied
upon at retail as being more advantageous to all concerned,
and in consequence a portion thereof is so sold, the courts held
the practice so repugnant to the statutory procedure as to
render their levies dormant, as to junior execution creditors
not consenting thereto.' And the same principle was applied
to attachments in the case of Brandon Iron Co. v. Gleason,'
where the court held tha: the senior attachment creditor lost
his priority by an arrangement, permitting the property levied
upon to be applied to the direct satisfaction of his debt,
although the amount thereof was less in value than the
amount of his attachment. The case of Reed v. Ennis is an
example of the application of the rule of dormancy to attach-
ments. There a member of a firm, to avoid an attachment
against his interest for an individual debt, caused a judgment
to be confessed by the firm in favor of a partnership creditor.
This judgment having been vacated as collusive, the plaintiff
therein immediately attached on the same debt, thereby
gaining priority over the former attachment on the individual
debt. Having secured this lien, no further steps were taken
in the action for four months, the creditor in the meantime
continuing his regular dealings with the firm. Upon these
facts, the court dismissed the attachment for dormancy.
§ 504. Priority lost by defective practice or fraud. While
it is true that subsequent attachment creditors cannot take ad-
vantage of mere irregularities existing in the practice of the
senior attachment creditor,' they may question all jurisdictional
defects therein, or the bona fides of the levy or the validity of
Isham v. Kitchum, 46 Barb. 43; Matter of Griswold, 18 Barb. 412;
Van Arsdale v. Krun, 9 Mo. 897; Ward . Howard, 12 Ohio St. 158;
Friedenburg v. Pierson, 18 Cal. 152; Ball v. Claflin, 5 Pick. 303.
446
THE LAW OF ATTACHMENT.
Execution of the Warrant.
the claim, forming the cause of action under which the same
issued.' Thus a junior attaching creditor may after judgment
in favor of the creditor holding a senior levy, and the goods
are held under execution instead of the attachment, enforce a
right of priority, on the ground that the process was not served
in such a manner as to confer jurisdiction in the justice who
gave judgment therein, and he may apply the same rule
whenever it can be shown that the senior levy has been prac-
tically abandoned.'
§ 505. Priority lost by change in the pleadings or process.
Junior attaching creditors acquire an absolute right of lien,
subject only to the prior levy. This creates a vested interest
in the property sufficient to permit them to insist that the
rights of the senior creditor shall be limited to the claimn
specified in the attachment proceedings, and for the amount
therein designated. Founded on this view of the case is the
rule that any change in the cause of action, or increase in the
amount of claim," is a fraud on the rights of subsequent lienors
sufficient to vitiate the entire lien as to them. But an amend-
ment that does not increase the claim or substantially change
the cause of action," or that is the result of a mistake which
is subsequently modified so as not to injuriously affect subse-
quent lienors,' will not avoid the statutory priority. The rule
is applicable to other material changes in the pleadings or
'Fairfield . Baldwin, 12 Pick. 888; Denny v. Warren, 16 Mass.
430; Ward v. Howard, 12 Ohio St. 158; Smith. Gettinger, 8 Geo. 140;
Ayres v. Husted, 15 Conn. 544.
Stone v. Miller, 62 Barb. 430.
French . Stanley, 21 Me. 512.
• Clark ». Foxcroft, 7 Me. 448; Young ». Broadbent, 23 Iowa, 539
Willis v. Crocker, 1 Pick. 204; Fairfield v. Baldwin, 12 Pick. 388; Page
v. Jewett, 46 N. H. 441; Freeman . Cruch, 112 Mass. 180; Pierce v.
Partridge, 4 Metc. 44.
• Putnam v. Hall, 8 Pick. 445; Drake on Attachments, § 282.
• McCarn v. Rivers, 7 Iowa, 404; Austin . Burtington, 84 Vt. 506.
Felton . Wadsworth, 7 Cush. 587.
PRACTICE.
447
Execution of the Warrant,
practice, such as a change of parties, plaintiff or defendant,' a
change of venue,' or a change of the character of trial, as by
the substitution of an arbitration for the statutory mode of
procedure, especially where it also covers other transactions.'
Loss of priority may also occur where, in a proper case, the
prior creditor fails to give a bond of indemnity to the sheriff,
to protect him against a claim of property made by a third
party, and the same is furnished by subsequent lienors."
§ 506.
Duties of the sheriff after judgment. The duty
of the sheriff is not merely to take property of the defend-
ant in his custody and preserve it; he must, when the plaint-
iff's rights are confirmed by judgment, proceed to turn the
same into cash and satisfy the claim so adjudged to be due.
Where property is held under a warrant of attachment, the
execution inust substantially require the sheriff to satisfy the
judgment, as follows:
"1. Where the judgment debtor is a non-resident, or a
foreign corporation, and the summons was served upon him
or it, without the State, or otherwise than personally, pursuant
to an order obtained for that purpose, as prescribed in chapter
fifth of this act, and the judgment debtor has not appeared in
the action; out of the personal property attached, and, if that
is insufficient, out of the real property attached."
"2. In any other case out of the personal property attached;
and, if that is insufficient, out of the other personal property
of the judgment debtor; if both are insufficient, out of the
real property attached; and if that is insufficient, out of the
real property, belonging to him, at the time when the judg
ment was docketed in the clerk's office of the county, or at
any time thereafter.”
¹ Milledgeville Manf. Co. v. Rives, 44 Geo. 479; Denny v. Ward, 8
Pick. 199; Peck v. Sill, 8 Conn. 157.
**Starr v. Lyon, 5 Conn. 538; Burrows v. Stoddard, 8 Conn. 431.
* Clark ⚫. Foxcroft, 7 Me. 348; Seeley. Brown, 14 Pick. 177.
• Smith v. Osgood, 46 N. H. 178.
§ 1870, Code of Civil Procedure,
448
THE LAW OF ATTACHMENT.
Execution of the Warrant,
8 507. The execution, to whom issued. The execution
must be issued to the person holding the warrant, although his
term of office may then have expired, unless a different per-
son is designated by law to complete his unfinished business,
in that case to the person so designated.'
The execution in such a case should be special in form,
reciting the attachment, the taking of the property and direct-
ing him to sell the same, and if a sufficient sum be not made
therefrom to satisfy the execution and his costs, then to sell
the property of the defendant generally.' But the latter
direction can only be given when the judgment is in personam.
Section 707 of the New Code provides that where "a defend-
ant, who has not appeared, is a non-resident of the state, or a
foreign corporation, and the summons was served without the
state, or by publication, pursuant to an order obtained for that
purpose, as prescribed in chapter fifth of the Code, the judg-
ment can be enforced only against the property which has been
levied upon, by virtue of the warrant of attachment, at the
time when a judgment is entered. But this section does not
declare the effect of such a judgment, with respect to the ap-
plication of any statute of limitation."
§ 508. Same. Application of proceeds. Where an execution
against the property is issued upon a judgment for the plaint-
iff, in an action in which a warrant of attachment has been
levied, the sheriff must satisfy it, as follows:
"1. He must pay over to the plaintiff all money attached
by him, and the proceeds of all sales of perishable property,
or of any vessel, or share or interest therein, or animals, sold by
him, or of any debts, or other things in action, collected or
1 $706, Code of Civil Procedure.
* McKny v. Harrower, 27 Barb. 463
• This provision, although new, is substantially in conformity with
pecisions under the Old Code. See Thatcher . Bancrofts, 15 Abb. 243;
Phelps v. Baker, 60 Barb. 107; Force v. Gower, 23 How. 294. It may
be considered necessary on account of a possible conflict suggested by
the decision of the Court of Appeals in the case of Gibbs v. Queen Ins.
Co., 68 N. Y. 114.
PRACTICE.
449
Execution of the Warrant.
sold by him; or so much thereof as is necessary to satisfy the
judgment.
"2. If any balance remains due, he must sell, under the
execution, the other personal property attached, or so much
thereof as is necessary, including rights or shares in the stock
of an association or corporation, or a bond or other instrument
for the payinent of money, executed and issued, with the in-
terest coupons annexed, if any, by a government, state, conn-
ty, public officer, municipal or other corporation, which is
in terms negotiable, or payable to the bearer or holder the
principal of which is not then payable; but not including any
other debt or thing in action. If the proceeds of that prop-
erty are insufficient to satisfy the judgment, and the execution
requires him to satisfy it out of any other personal property
of the defendant, he must sell the personal property upon
which he has levied by virtue of the execution. If the pro-
ceeds of the personal property, applicable to the execution,
are insufficient to satisfy the judgment, the sheriff must sell
under the execution, all the right, title, and interest, which
the defendant had in the real property attached, at the time
when the notice was filed, or at any time afterwards, before
resorting to any other real property.
"3. If personal property attached belonging to the defend-
ant, has passed out of the hands of the sheriff, without having
been sold or converted into money, and the attachment has
not been discharged, as to that property, he must, if practica-
ble, regain possession thereof; and, for that purpose, he has
all the authority which he had, to seize the same under the
warrant. A person, who willfully conceals or withholds such
property from him, is liable to double damages, at the suit of
the party aggrieved.
"4. Until the judgment is paid, he may collect the debts
and other things in action attached, and prosecute any undertak-
ing which he has taken in the course of the proceedings, and
apply the proceeds thrreof to the payment of the judgment.
"5. At any time after levying the attachment, the court,
upon the petition of the plaintiff, accompanied with an affidavit,
29
450
THE LAW OF ATTACHMENT.
I
Execution of the Warrant.
specifying fully all the proceedings of the sheriff, since the
levy under the warrant, the property attached, and the dis-
position thereof; and the affidavit of the sheriff, showing that
he has used diligence in endeavoring to collect the debts and
other things in action, attached, and that a portion thereof
remains uncollected; may direct the sheriff to sell the remain-
ing portion, upon such terms, and in such manner, as it thinks
proper. Notice of the application must be given to the de-
fendant's attorney, if the defendant appeared in the action,
If the summons was not personally served on the defendant,
and he did not appear, the court may make such order as to
the service of notice as it thinks proper; or may grant the
application without notice."
Although a judgment rendered after the death of an
attachment debtor cannot be enforced against his general
estate which by act of law passed to his personal representa-
tives at his decease, a special execution may issue out of the
court in which the action was brought, and the property levied
upon during the life of the defendant, may be sold therein,
but it should be limited to such property.' When judgment
in rem has been recovered against a foreign corporation, the
sheriff cannot sell its real estate in another state,' but a third
party order may be secured, subjecting property attached, held
by others, or debts due from them to the payment of the
judgment, provided a levy was made thereon, prior to the
recovery thereof."
§ 509.
Restoration by sheriff to defendant, when and how
made. Where a warrant of attachment is vacated, or annulled,
or an attachment is discharged, upon the application of the
defendant, the sheriff must, except in a case where it is other-
wise specially prescribed by law, deliver over to the defeud-
'Thatcher v. Bancroft, 15 Abb.
Runk v. St. John, 29 Barb. 585.
• See Chandler v. City of Fond du Lac, 56 How. 449, and 707 of the
New Code.
PRACTICE.
451
Execution of the Warrant.
ant, or to the person entitled thereto, upon reasonable demand,
and upon payment of all costs, charges, and expenses, legally
chargeable by the sheriff, all the attached personal property
remaining in his hands, or that portion thereof, as to which
the attachment is discharged; or the proceeds thereof, if it
has been sold by him.'
>
"Where the sheriff is required to deliver attached prop-
erty, or the proceeds thereof, to the defendant, he must also
deliver to him, unless otherwise specially directed by the court
or judge, all books of account, vouchers, evidences of debt,
muniments of title, or other papers, relating to the property,
either real or personal, or to its proceeds; together with all
undertakings, relating thereto, which he has taken in the
course of the proceedings, and which have not been fully satis-
fied; except an undertaking, given by the defendant, upon
the discharge of property. He must also deliver a written
assignment, duly acknowledged, of each undertaking, so de-
livered, and of each other instrument, to which the defendant
is thus entitled, an assignment of which is necessary to perfect
or protect the defendant's title thereto. The defendant must
also, but upon his own application only, be substituted in place
of the sheriff, or the sheriff and the plaintiff jointly, in an
action brought as prescribed in this title; but the court or
judge may impose, as a condition of granting the order of sub-
stitution, such terms as justice requires, with respect to in-
demnity and payment of expenses. The defendant's rights,
with respect to property attached and not disposed of, and an
undertaking, or other instrument, to which he is thus entitled,
are the same as those of the sheriff, while the warrant was
still in force, except where his rights are specially defined or
regulated by law."
8510. Cancelling notice attaching real property. At any
time after the warrant of attachment has been vacated or an-
nulled, or the attachment has been discharged as to real prop-
1 § 709, Code of Civil Procedure.
• § 710, Code of Civil Procedure.
452
THE LAW OF ATTACHMENT.
Execution of the Warrant.
erty attached, the court may, in its discretion, upon the ap-
plication of any person aggrieved, and upon such notice as it
deems just, direct, that any notice filed for the purpose of
attaching the property, be cancelled of record, by the clerk of
the county where it is filed and recorded. The cancellation
must be made by a note, to that effect, on the margin of the
record, referring to the order; and, unless the order is entered
in the same clerk's office, a certified copy thereof must, at the
same time, be filed therein.'
8 511. Sheriff's return. Where a warrant of attachment
has been vacated or annulled, the sheriff must forthwith file,
in the clerk's office, the warrant, with a return of his pro-
ceedings thereon. Upon the application of either party, and
proof of the sheriff's neglect, the court may direct him so to
do, forthwith, or within a specified time."
This section is directory, and raises by its non-fulfillment a
mere irregularity that cannot be taken advantage of in a col-
lateral proceeding. The change made by the New Code was
the substitution of "vacated and annulled" for the term
"executed or discharged," specified in section 242 of the Old
Code.
It is a well settled rule of law that the return upon process
executed by a sworn officer, within the line of official duty,
and duly filed, is prima facie true, and competent presump-
tive evidence of the facts therein stated. As between the
parties to the action, it must be treated as part of the record,
and so far as it comes within the officer's authority, this pre-
sumption is irrebuttable," and its falsity cannot in any suit be
1 § 711, Code of Civil Procedure.
§ 712, Code of Civil Procedure.
• Rodgers v. Bonner, 45 N. Y. 879.
♦ Nichols v. Patten, 18 Me. 231; Bruce v. Holden, 21 Pick. 187; Sias
•. Badger, 6 N. H. 393.
Allan . Martin, 10 Wend. 300; Boomer v. Laine, 10 Wend. 522;
Huntress. Tiney, 89 Me. 237; Rivard v. Gardner; Halowell . Page,
24 Mo. 590; Rice &. Groff, 58 Pa. St. 118; Grove v. Howard, 51 Me. 546;
Bowles v. Bowen, 45 N. H. 124; Rowell ». Kleim, 44 Ind. 290.
PRACTICE.
453
Execution of the Warrant.
shown by the officer who made it.' If a party to the suit, or
such officer desires to question it, there must first be a change
in the record by securing an order of the court nullifying or
amending the return. The court will always for manifest
error or mistake, on the part of the officer, and on his motion,
grant an order amending a return so as to correspond to the
facts in relation thereto.' The amendment, when made, acts
without any order to that effect, nunc pro tunc, as of the date
of the original return. The application is addressed to the
sound discretion of the court, and will be refused where it
might injuriously affect the vested rights of third parties,*
except where they had notice of the true facts at the time
their rights accrned."
§ 512. Proceedings by the sheriff to assert or defend his right
to the property attached. We have already noted the rule that
the sheriff may attach tangible personal property, which had
been previously assigned by the defendant to a third party,
provided such transfer was fraudulent as to creditors. It is a
well settled rule of law that a creditor at large is not in a posi-
tion to attack a transfer by the debtor on the ground of fraud,'
but after the property has come into the possession of a sheriff,
by virtue of a warrant of attachment against the assignor, he
acquires a specific lien sufficient to enable him to assert his
rights by attacking the transfer in a suit against him by the
¹ Cowan . Wheeler; 31 Me. 439; Pratt . Phillips, 1 Sneed, 543;
Heffner v. Reed, 3 Grant's Cas. 245; Martin v. Barney, 20 Ala. 369.
* Barker v. Binninger, 14 N. Y. 270; Wright's Appeal, 25 Pa. St.
873; Hammond v. Eaton, 15 Gray, 186; McArthur. Carrie, 82 Ala.
75; Dunn v. Rodgers, 43 Ill. 200; Messner v. Lewis, 20 Tex. 221; Free-
man v. Carhart, 17 Geo. 848.
• Hill. Cunningham, 25 Tex. 25; Smith e. Leavitts, 10 Ala. 92;
Kitchen v. Reinsky, 42 Miss. 427.
* Bowman v. Stark, 6 N. H. 459; Emerson e. Uptown, 9 Pick. 167;
Fairfield v. Paine, 23 Me. 498; Williams. Brackett, 8 Mass. 240.
Haven. Snow, 14 Pick. 28.
• Infra, chap. XVIII.
Southard. Benner, 72 N. Y. 424; Evans . Hill, 18 Hun, 484.
454
THE LAW OF ATTACHMENT.
Execution of the Warrant.
1
assignee, on the ground, that in such a case the plaintiff is not a
"creditor at large," within the rule, and the sheriff as his bailee
may prove the fraudulent character of the transaction. The
right to assume the affirmative of the issue, and attack the
transfer in equity after the sheriff has levied upon the assigned
goods, would seem to follow as a corollary to this proposition,
and the Supreme Court so held in the case of Kelly v.
Lane. All the rule ordinarily requires is the adjudication
of the plaintiffs rights by judgment, and the termination of
his law powers by the return of execution unsatisfied, or the
procurement of a specific lien upon the property in question.
This last requirement is applicable here, and it is difficult to
find any reason for the exemption of the right to maintain a
creditor's suit in such a case. Unfortunately, however, the
rule has been weakened in force, by attaching to it another
case having no legitimate connection therewith, to wit: the
effect of garnishment, or a levy, upon choses in action, where,
prior to the levy, there has been a fraudulent assignment. It
will be noted that this rule is founded solely upon the specific
lien acquired by the sheriff, upon the goods attached and taken
into his possession. This essential element is wanting in the
case of an attachment upon money due the defendant. No
specific lien can, from the nature of the case, be acquired upon
such money, neither can the sheriff take possession thereof.
In fact no valid levy can be made upon a chose in action, after
its transfer by the defendant. It is evident, therefore, that
' Hall v. Stryker, 27 N. Y. 596; Rinchey v. Stryker, 28 N. Y. 45;
(S. C., 81 N. Y. 140); Kelly ∞. Lane, 28 How. 128; Frost v. Mott, 34 N.
Y. 253; Thurber v. Blanck, 50 N. Y. 80; Carr v. Van Hoesen, 26 Hun,
816; Schlussel v. Willett, 84 Barb. 615; Jacobs v. Renisen, 35 Barb. 384;
Dixon . Hill, 5 Mich. 404; Owens v. Dixon, 17 Conn. 492.
* 42 Barb. 594. This rule was also enforced under the former system
of practice, see Falconer v. Freeman, 4 Sandf. Ch., and prevails in some
of the other states (Hunt v. Field, 1 Stockt. [N. J.] 86; Sheafe v. Sheafe,
40 N. H. 516; Ward v. Kinzie, 83 Tex. 297).
• Connor ⚫. Weber, 12 Hun, 580; Howard National Bank v. King, 4
Law Bul. 84; Smith v. Longmire, 24 Hun, 257.
PRACTICE.
455
•
Execution of the Warrant.
the rule will not apply in such a case,' nor where the prop-
erty has been so converted that its identity is gone,' or the levy
is attempted to be made upon the proceeds thereof.' The
decisions of the courts to this effect have been made, unduly,
to play the part of denying the existence of the rule itself."
But however much discredit may have been thrown upon it,
the principle was practically re-established in the late case of
Bates v. Plonsky. There the Supreme Court, at General Term,
sustained an equity action brought by the attachment creditor in
aid of his levy, prior to the recovery of the judgment, attack-
ing for fraud a previous assignment for the benefit of credi-
tors, and the liens of execution creditors levied under confessed
judgments, on the ground that the attachment levy having
been made upon manual property, which was taken into the
actual possession of the sheriff, a lien was created thereon suf-
ficient to sustain the action. This, and Greenleaf v. Mumford,"
are the only cases under the Code Practice in this state, where
the distinction between the effect of an attachment upon
manual property, and choses in action has been considered with
reference to this particular question. But in the case of Bowe
v. Arnold (18 N. Y. W. Dig. 326), the General Term of the
Supreme Court for the First Department, in a decision ren-
dered in December, 1883, held. that the sheriff and an attaching
creditor cannot, either jointly or separately, maintain an action
against the assignee of the debtor to set aside the assignment
as fraudulent, either under the authority of §§ 655 and 677 of
the Code of Civil Procedure; or for the purpose of protecting
and enforcing the lien of the attachment. It does not appear
whether the attaching creditor, in that case, gained a special
lien by taking manual possession of the assigned property, and
¹ Thurber v. Blanck, 50 N. Y. 80.
* Lawrence . Bank of Republic, 35 N. Y. 320.
Ex parte True, 4 Abb. N. C. 90; Ex parte Freel, 55 How. 880;
Lawrence . Bank of Republic, supra.
4 See Drake on Attachments, § 225.
• 2 Civ. Pro. R. 289.
• 42 Barb. 594.
456
THE LAW OF ATTACHMENT.
Execution of the Warrant.
consequently, there is nothing on the face of the opinion to
show which class of cases was before the court. They did not
consider the distinction between these parallel rules, but, on
the contrary, cited as authority the case of Thurber v. Blanck
(50 N. Y. 80), which in turn cited and relied upon Lawrence
v. Bank of Republic (35 N. Y. 320), both cases in which no
valid lien was acquired upon the assigned property forming
the subject of the attachment. In Lawrence v. Bank of the
Republic the attachment was made upon the proceeds of the
property sold by an assignee for the benefit of creditors, instead
of upon the property itself, and the decision of the court starts
off with the statement that "it is conceded, in the opinion of
the court below, that the sheriff acquired no lien upon the
funds by the service of the attachment." The case of Thurber
v. Blanck was a creditors' snit, instituted by the sheriff to
vacate a fraudulent transfer of a bond and mortgage that he
had attempted to attach. Neither of these cases came within
the rule applicable to attachment on assigned chattels, where a
specific lien is created by the levy. The last case is directly
opposed to the decision of the commission of appeals, in the
case of Mechanics' & Traders' Bank v. Dakin,' but is never-
theless good law, and has since been affirmed in the same court.
Until the Court of Appeals has ended all dispute on this
point, I shall rest firmly in the belief that the sheriff may in-
voke the aid of equity to remove the obstruction of a fraudn-
lent transfer of the property, upon which, by levy, he has
secured a valid existing lien, notwithstanding the decision in
the case of Bowe v. Arnold.
' 51 N. Y. 519.
VACATING ATTACHMENTS.
457
Vacating Attachments by Motion.
CHAPTER XXVI.
VACATING ATTACHMENTS.
SECTION 513. An attachment may be vacated: 1st. By con-
sent of the attachment creditor. 2d. By judgment for the
defendant in the action. 3d. By order of the court for defects
appearing on the face of the proceedings. 4th. By order of
the court where the warrant is regular, but shown by affidavits
to have been improvidently granted. 5th. By filing security.
It may be vacated by consent, upon entering an order granted
upon a written stipulation to that effect, signed by the parties
or their respective attorneys. Of course the levy may be
withdrawn by verbal directions to the sheriff who made it.
That a judgment recovered in favor of the attachment debtor
will discharge the warrant is self-evident,' as there then re-
mains nothing to which the lien may attach, or by virtue of
which the warrant has its existence.
§ 514. Discharge for defects in the original papers. A dis-
charge for irregularity in the attachment papers or insuffi-
ciency of the affidavit may be secured, in a proper case, either
upon an ex parte application to the judge who granted the
warrant, or by serving a notice of motion or order to show
cause, upon the plaintiff's attorney, returnable before a special
term of the court in which the action is pending, or before the
judge who granted the warrant, if it was granted out of court.*
'See Suydam .. Huggeford, 23 Fick. 465; Johnson v. Edson, 2 Aik.
(Vt.) 299; Harrow v. Lyon, 8 G. Greene, 157.
• * § 688, Code of Civil Procedure.
458
THE LAW OF ATTACHMENT.
Vacating Attachments by Motion.
It may be returnable at special term before another judge,
although granted out of court.'
§ 515. When the motion should be made. It was formerly
held that a motion of this character should be made at the
earliest practicable period after the warrant had been levied, as
mere irregularities might be deemed to have been acquiesced
in and waived by delay, where no proper cause therefor is
shown,' but this did not apply to motions for relief, which
affected the substantial rights of the parties,' and the new
Code has now abrogated the rule altogether. Section 682 pro-
vides that the defendant, or a person who has acquired a lien
upon, or interest in, his property, after it was attached, may,
at any time before the actual application of the attached prop-
erty, or the proceeds thereof, to the payment of a judgment
recovered in the action, apply to vacate or modify the war-
rant, or to increase the security given by the plaintiff, or for
one or more of those forms of relief, together, or in the alter-
native. This permits the motion to be made after judgment,
and after issuing the execution,' as the levy thereunder is not
<<
an actual application of the attached property, or the pro-
ceeds thereof, to the payment of a judgment recovered in the
action. That term relates to the application to the judgment
of the proceeds of property sold under execution, or of the
moneys collected under the attachment."
8 516. By whom made-the defendant. It will be noted
that the application may be made by "the defendant or a per-
son who has acquired a lien upon or an interest in his property
after it was attached." Although the defendant is named
without regard to his interest in the property, I have no doubt
1 Ruppert v. Haug, 1 Civ. Pro. R. 411; aff'g 8. C., 24 Han, 882.
* Lawrence. Jones, 15 Abb. 110.
'Swezey .. Bartlett, 8 Abb. N. S. 444.
• See Thompson v. Culver, 24 How. 286; Zerega v. Benois, 7 Rob.
199.
Bowen .. First Nat'l Bank of Medina, 84 How. 408.
• Woodmansee . Rogers, 82 N. Y. 88.
VACATING ATTACHMENTS.
459
Vacating Attachments by Motion.
that the former rule limiting the right to the case where he
has sustained some injury from the issuing of the warrant,'
will still apply. This rule is illustrated in the case of the
attachment debtor who has made an absolute transfer of the
property levied upon, and at the time of making the motion has
no interest therein.' But is not applicable to the case of a
general assignment for the benefit of creditors, as the assignor
there has a contingent or reversionary interest in the property,
which will support the motion in his favor.'
§ 517. Same. Subsequent lienors or purchasers. A person
having acquired a lien upon the property, subsequent to that
of the attachment, plaintiff may make a motion to vacate or
modify the warrant on the ground of the insufficiency of the
affidavits upon which it was granted. And he may also move
upon opposing affidavits. A subsequent execution' or attach-
ment creditor is a "lienor " within the provisions of the Code.
In the case of attaching creditors the moving papers should
include the attachment papers as proof that the applicant has
a valid lien. His own affidavit to that effect is insufficient."
The motion is entitled in the suit in which the attachment
sought to be annulled was granted. There is no requirement
to the effect that the applicant should first be made a party
therein, and such is not the practice of the courts.' The stat-
ute is not limited to lienors; it includes, as well, all parties sub-
sequently acquiring an interest in the property, and the lien or
interest need not be acquired in invitum. It may be acquired
by a voluntary transfer, the vendee in such a case taking the
' Matter of Griswold, 13 Barb. 812.
* Furman v. Walter, 18 How. 848.
• Dickerson v. Benham, 12 Abb. 158; Brewer . Tucker, 18 Abb. 76;
Gasherie v. Apple, 14 Abb. 64.
• Steuben County Bank o. Alberger, 78 N. Y. 252; Jacobs v. Hogan,
85 N. Y. 243.
• Id.
• Ruppert v. Haug, 1 Civ. Pro. R. 411.
14 W. Dig. 454.
• Peoples' Bank ♥. Mechanics' Nat'l Bank, 62 How. 422.
460
THE LAW OF ATTACHMENT.
Vacating Attachments by Motion.
place of the defendant and being relegated to all his rights,
even though only a portion of the attached property may have
come into his hands.'
§ 518. Motion to vacate founded on answering affidavits.
Where the attachment papers are regular and sufficient on their
face, the warrant can only be defeated by showing the falsity
of the original affidavits, or by explaining away their effect.
On this motion every allegation essential to the granting of
the attachment may be disproved, or so much thereof as may
be deemed necessary to show that the warrant was improvi-
dently issued.' The principles heretofore stated in relation to
the original affidavits apply to those subsequently made by
either party for the purpose of vacating or supporting the writ.
§ 519. When motion may be opposed by additional proofs.
Where the affidavits on a motion made by the defendant or a
subsequent lienor, simply show the right to move or to secure
an order to show cause or merely explain away any seeming
laches on his part, but do not put any of the allegations in the
original affidavits in issue, the plaintiff is not entitled to read
additional affidavits in support of his attachment. The same
rule applies where the motion is made solely upon plaintiff's
original papers. The plaintiff is not authorized in such a case
to even interpose proof showing that the defendant has parted
with his interest in the property attached.' But if the defend-
ant in his motion offers any proof upon the merits of the con-
troversy or denies any of the plaintiff's allegations, it is suffi-
cient to let in new proofs on his part, tending to support the
original ground of attachment,' although the allegations so
¹ Trow's P. & B. Co. v. Hart, 85 N. Y. 500.
'See Bosher v. Roullier, 4 Abb. 896; Matter of Warner, 8 Wend.
424; Lovier v. Gilpin.
• See chap.
·
Trow's Print. etc. v. Hart, 85 N. Y. 500; Steuben Co. Bank ». Als
berger, 75 N. Y. 179; Brewer o. Tucker, 18 Abb. 76.
'Dickerson v. Benham, 12 Abb. 158.
§ 688, Code of Pro.
VACATING ATTACHMENTS.
481
Vacating Attachments by Motion.
controverted may be considered immaterial, as the right does
not rest upon the directness or force of the opposing affidavits.'
This rule has been carried so far as to recognize the privilege
where the opposing proofs are simply explanatory or founded
upon facts arising subsequent to the granting of the warrant,
which are claimed to affect its validity. As where the motion
is founded on the original affidavits taken in connection with
the complaint subsequently executed by the plaintiff.”
§ 520. The character of the plaintiff's additional proof. The
Court of Appeals under the Old Code held that the additional
proofs offered by the plaintiff must be confined to the office of
contradicting or explaining those made in support of the mo-
tion to vacate, and that they could not supply any defects in
the original affidavits,' but the New Code explicitly states that
the plaintiff may, in such a case, submit new proof by affida-
vit, "tending to sustain any ground for the attachment recited
in the warrant, and no other." This is sufficiently explicit to
warrant the interposition of any new facts tending to support
the original grounds of attachment, although the original affi-
davits may have been fatally insufficient, and fully disproved.
§ 521. Principles governing the decision of the court. The
question to be considered by the court where the motion to
vacate comes up on controverting affidavits, is the same in
effect as that originally presented on the granting of the war-
rant, to wit: taking the entire testimony into consideration, is
there a fair presumption in favor of the charge alleged in the
warrant as the ground of attachment? This is necessarily the
rule under the present reading of § 683, of the New Code,
which gives the right where the plaintiff's remedy is attacked
by counter affidavits to submit entirely new proofs to sub-
stantiate the alleged ground of attachment. But under the
former Code, where the only provision in this respect was to
'Godfrey v. Godfrey, 75 N. Y. 434.
'Ives. Holden, 14 Hun, 402.
• Yates v. North, 44 N. Y. 271.
462
THE LAW OF ATTACHMENT.
Vacating Attachments by Filing Bonds.
the effect that "the plaintiff may move to discharge the attach-
ment as in other provisional reinedies," the only question that
could be passed upon in such a case was whether the plaintiff's
original affidavits were sufficient in statement or true in
fact; hence where the moving affidavits completely contro-
verted all the material allegations upon which the writ issued,
the warrant was held to be properly vacated,' and the same
rule applied where the amount due was stated on information
and belief and positively denied,' or where the whole evidence
showed that the plaintiff could not have known the facts to
which he swore positively in his affidavit to obtain the attach-
ment, and they were met by an absolute denial and not sup-
ported by new proof.'
VACATING ATTACHMENT BY FILING BONDS.
FILING
§ 522. Discharge of attachment by defendant's bonds. The
statutes in most of the states provide for a discharge of the
attachment by the defendant's furnishing bonds with sufficient
sureties for the payment of any judgment that may be entered
in the action. In New York, the Code of Civil Procedure
provides that the defendant may, at any time after he has
appeared in the action, and before final judgment, apply to the
judge who granted the warrant, or to the court, for an order
to discharge the attachment, as to the whole or a part of the
property attached. Upon such an application, the defendant
must give an undertaking, with at least two sufficient sureties,
to the effect that he will, on demand, pay to the plaintiff the
amount of any judgment which may be recovered in the action
against him, not exceeding a sum specified in the undertaking,
with interest. The sum so specified must be at least equal to
1 Van Allen . Sampson, 5 W. Dig. 288.
•
'Dean v. Bell, 1 Law Bull. 42.
O'Reilly . Freel, 87 How. 272.
§ 687. It was held under the Old Code that the undertaking could
not be special, so as to relieve only a portion of the attached goods from
the levy (Royal Ins. Co. v. Nobles, 5 Abb. N. 8. 54). This statute was
changed so as to obviate this difficulty.
VACATING ATTACHMENTS.
463
Vacating Attachments by Filing Bonds.
the amount of the plaintiff's demand, as specified in his affida-
vit; or, at the option of the defendant, equal to the appraised
value, according to the inventory, of the property attached;
or, if the application is to discharge the attachment, as to a
part only of the property attached, to the appraised value of
that portion.
The order discharging the attachment should state whether
it applies to only a portion or to the whole of the property.
In the former event, the particular goods upon which it is to
operate should be distinctly stated. The right to file an un-
dertaking for that purpose terminates, by statute, on the entry
of judgment in the action. An appeal therefrom will not
revive the right. The law applies in the case of garnishment
or attachment of debts as well as where tangible personalty
have been levied upon. As the right is statutory, no consid-
eration need be expressed or actually exist in the undertaking.”
One undertaking cannot be given to discharge two separate
attachments, issued in different actions."
§ 523. Liability of the sureties. Although an undertaking
which is void for jurisdictional defects cannot be enforced
against the sureties,' they cannot defend on the ground of
irregularities, and are estopped from denying any of the re-
citals therein. Neither can they interpose the defense that no
1 § 688 Code of Civ. Pro.
Ellsworth . Scott, 3 Abb. N. C. 9.
* Spencer v. Rogers Locomotive Works, 13 Abb. 180; Wright v. Row-
land, 4 Keyes, 105.
• Lecesne v. Cottin, 10 Martin, 174.
* Bildersee v. Aden, 62 Barb. 175 ; Cadwell ». Colgate, 7 Barb. 253.
• Walton v. Daly, 17 Hun, 601.
"Coleman v. Bean, 3 Keyes, 94.
1 Delaney v. Brett, 1 Abb. N. S. 421; Dunn v. Crocker, 22 Ind. 824;
sed contra, Childress v. Fowler, 9 Ark. 159.
'Higgins v. Healey, 47 N. Y. Supr. Ct.
Keyes, 04; Haggart v. Morgan, 5 N. Y. 422.
Louisiana. See Bauer v. Antoine, 22 La. An.
La. 82; Kendal v. Brown, 7 La. An. 668.
207; Coleman v. Bean, 8
The rule is different in
145; Paibles v. Roux, 14
464
THE LAW OF ATTACHMENT.'
Vacating Attachments by Filing Bonds.
property was attached,' or the property levied upon was not a
proper subject of attachment,' or that the warrant was never
issued,' or that the property was after the execution of the
bond surrendered in discharge of their liability thereon,* or
that the attachment was granted on insufficient grounds," or that
the defendant has been discharged in bankruptcy, or that the
claim has been secured by an undertaking on appeal,' or that
the recovery in the action was not against all the defendants,"
or that the pleadings were subsequently amended by the addi-
tion of parties defendant." In construing the rights and
liabilities of the sureties, it must be borne in mind that the
undertaking is to pay the judgment and not to return the
property. Hence all questions as to the character or subse-
quent disposition of the levy are immaterial."
8524. Application by one of several defendants. Where there
are two or more defendants, and the application is made by
one or more, but not by all of them, the undertaking must
provide for the payment of any judgment which may be re-
covered against any of the defendants in the action, unless the
applicant makes proof, by affidavit, to the satisfaction of the
court or judge, that the property, with respect to which the
1 Frost v. White, 14 La. An. 140.
'Bacon v. Daniels, 116 Mass. 474; Beal v. Alexander, 1 Rob. (La.)
277; McMillan v. Dana, 18 Cal. 339.
• Coleman . Bean, 82 How. 870.
Dorr v. Kershaw, 18 La. 57.
• Cruyt. Phillips, 16 How. Pr. 120; Bildersee v. Aden, 62 Barb.
175; Inman v. Strattan, 4 Bush (Ky.) 445.
McCombs . Allen, 82 N. Y. 114; sed contra, where he was discharged
before judgment rendered against, him. Carpenter ». Turrell, 100 Mass.
450; Payne v. Able, 7 Bush, 844.
'Higgins v. Healey, 47 N. Y. Supr. Ct. 207.
Gilmore ». Crowell, 67 Barb. 62.
• Christal v. Kelly, 88 N. Y. 285. But in some of the states the
courts hold that the change of parties plaintiff (Quillen v. Arnold, 12
Nev. 234) or defendant (Richards v. Storer, 114 Mass. 101; Harris ❤. Tay-
lor, 8 Sneed, 586; Andre ». Fitzhugh, 18 Mich. 93).
10 See Irvin v. Howard, 87 Ga. 18, and section 688 of the New Code.
VACATING ATTACHMENTS.
465
Vacating Attachments by Filing Bonds.
application is made, belongs to him separately; in which case
the undertaking must provide for the payment of any judg-
ment, which may be recovered in the action against the appli-
cant, either alone or jointly with any other defendant. Where
such an application is made, at least two days' notice thereof,
with a copy of the affidavit, must be served upon the plaintiff's
attorney, who may oppose the application by proof, by affida-
vit, that one or more of the other defendants own, or have an
interest in the property.' But where the undertaking given
provides for the payment of any judgment that may be recov-
ered against the defendants, their liability is imposed by a
recovery against a part of them only,' and the rule is not
changed in the case of the death of one of several defendants
jointly liable in the action, where the cause of action survives."
§ 525. Filing of the bond and justification of the sureties.
The undertaking must be forthwith filed with the clerk, and a
copy thereof, with a notice of the filing, served upon the
plaintiff's attorney; who may, within three days thereafter,
give notice to the sheriff, that he excepts to the sufficiency of
the sureties. Thereupon the sureties must justify, upon the
like notice, and in like manner, as bail upon an arrest; or a
new undertaking must be given with new sureties, who must
justify in like manner. If the plaintiff does not so except, he is
deemed to have waived all objection to the sureties. The
sheriff is responsible for the sufficiency of the sureties; and he
may retain possession of the property attached, and the pro-
ceeds thereof, until the objection to them is waived, as pre-
scribed in the last section, or they, or the new sureties, justify."
The verbal consent of the plaintiff to the entry of the usual
order for the discharge of the attachment cannot be construed
into a waiver of his right to require an examination of the
1 § 689, Code of Civil Procedure.
• Gilmore v. Crowell, 6 Barb. 62.
• Cockroft v. Claflin.
§ 690, Code of Civil Procedure.
§ 891, Code of Civil Procedure.
80
466
THE LAW OF ATTACHMENT.
Vacating Attachments by Filing Bonds.
sureties. Neither will the ex parte approval of the form of the
bond and sufficiency of the sureties endorsed by the court on
granting the discharge, be deemed such a waiver. The sheriff
should retain the property until there has either been an ex-
press waiver by the plaintiff or an approval on justification.'
§ 526. Application by partners sued individually. Where
the warrant is levied upon the interest of one or more part-
ners for an individual liability, the other partners, or any of
thein, may apply to the judge who granted the warrant or to
the court, upon an affidavit showing the facts, for an order to
discharge the attachment as to that interest. This provision
was inserted in the New Code to remedy the hardship occa-
sioned from the adoption of the rule that under such an attach-
ment the officer was required to take into actual possession all
the property attached, although it might be the entire prop-
erty of the firm, and the separate interest of the defendants
therein after the payment by firm of debts, might in fact be
only nominal. The undertaking in such a case is special. It
must provide for the payment to the sheriff on demand the
amount of any judgment, which may be recovered against the
partner who is defendant in the action; or which may be re-
covered against him in any other action wherein the other
partners are not defendants, and wherein a warrant of
attachment, or an execution, may come to the sheriff's hands,
at any time before the warrant of attachment, which has so
been levied, is vacated or aunulled, not exceeding a sum speci
fied in the undertaking, which must not be less than the value
of the interest of the defendant in the goods and chattels
seized, by virtue of the attachment, as fixed by the court or
judge. Where such value is uncertain, the sum shall be such
as the court or judge determines, and for that purpose, or to
'Moses. Waterbury Button Co., 15 Abb. N. 8. 205.
§ 693, Code of Civil Procedure.
See Phillips v. Cook, 24 Wend. 889; Waddell v. Cook, 2 Hill, 47;
Smith v. Orser, 42 N. Y. 132.
694, Code of Civil Procedure..
VACATING ATTACHMENTS.
467
Vacating Attachments by Filing Bonds.
determine the sufficiency of the sureties, the court or judge
may receive affidavits or oral testimony, or direct a reference,'
and may direct that notice of the application be given to the
plaintiff, in which event it will be dismissed upon a default of
appearance by the applicant.'
Mr. Throop, in his Notes, suggests that there should, in
such cases, be but one undertaking, which should run to the
sheriff, who will hold it for the benefit also of junior attach-
ment or execution creditors, in the order of their respective
priorities. Of course the value of the partner's interest should
be the measure of the sureties' liability, irrespective of the
amount of the plaintiff's demand.'
!
¹ § 695, Code of Civil Procedure.
§ 696, Code of Civil Procedure.
• Throop's Notes to § 694 of the New Code.
8
468
THE LAW OF ATTACHMENT.
Affidavit for Attachment-Formal Averments.
CHAPTER XXVII.
FORMS.
Form No. 1.
Affidavit for Attachment.
Title of Cause.
SUPREME COURT-COUNTY OF NEW YORK.
JOHN DOE and JOHN SMITH,
Plaintiffs,
against
RICHARD ROE,
Defendant.
·
Venue.
City and County of New York, ss.:
Frymal Averments.
JOHN DOE, being duly sworn, says: I. That he is one of
the plaintiffs herein, and knows the defendant. That during
¹ Where this affidavit is made by any person, other than the plaintiff,
amend this clause accordingly, i. e., “That he is in the employ of the
plaintiffs as manager of credits," or otherwise, as the case may be, and
add at the end of the paragraph the reason why the affidavit was made
by him, as for instance, "That the reason why this affidavit is not made
by one of the plaintiffs is that the facts herein are specially within the
knowledge of deponent."
PRACTICE-FORMS.
469
Affidavit for Attachme, The Cause of Action,
all the times hereinafter mentioned the plaintiffs were im-
porters and jobbers of dry goods, doing business in the
city of New York under the firm name and style of John Doe
& Co., and the defendant was a retail dealer in fancy goods at
No. Broadway in said city……
II. That an action has been commenced by the issuing of
the summons accompanying this application,' to recover from
the defendant the sum of one thousand dollars damages' for
the breach of a contract. That the plaintiffs are entitled to re-
cover said sum from the defendant, over and above all counter-
claims known to them as will more fully appear' from the
facts set forth in the next paragraph.
The Cause of Action.
III. That between the first day of December, 1882, and the
10th day of May, 1883, the plaintiffs sold and delivered to the
defendant, at his special instance and request, goods, wares, and
merchandise, of the value, and amounting in the aggregate at
the prices fixed and agreed upon between the plaintiffs and de-
fendant, to the sum of eighteen hundred and fifty dollars, which
sum the defendant thereupon undertook and promised to pay
therefor, but that he has not paid the same, nor any part
thereof, except the sum of eight hundred and fifty dollars,
and there is now just due from the defendant to the plaintiffs
'Where the attachment is applied for after the service of the sum-
mons, it is sufficient to insert "And is now pending," the entire allega-
tion as to the commencement of an action not being essential.
* When the action is not in assumpsit, strike out all between this
and the word “as" in the concluding clause of this paragraph, and in-
sert in lieu thereof, "for the wrongful conversion of personal property,”
or "an injury to personal property in consequence of the negligent” [or
"fraudulent "]"acts of the defendant," as the case may be.
• Where the complaint is attached to the affidavit, insert in lieu of
the rest of this paragraph the following: "From the complaint herein,
a copy of which is hereunto attached marked 'A,' and forms a part of
this affidavit. That the statements therein set forth are true to the
knowledge of this deponent." In that case the next paragraph may be
omitted.
470
THE LAW OF ATTACHMENT.
Affidavit for Attachment-Non residence, &c.
the sum of one thousand dollars, with interest thereon from the
10th day of June, 1883.'
Ground of Attachment-Foreign Corporation.
IV. That the defendant is a foreign corporation, and was
created by and under the laws of the State of New Jersey.'
a. The grounds of attachment-non-residence.
IV. That the defendant is not a resident of the state of
New York, but resides at Newark, in the state of New Jersey.'
It will be noted that this form is precisely the same as in a plead-
ing; a distinction may arise, nevertheless, when portions of the cause of
action must be stated on information and belief. In such cases the form
specified in the case of a complaint will not answer, as the rule requires
that in affidavits the source of the information, &c., must be given (see
section, infra). This distinction arises from the fact, that in this applica
tion the right of action, as well as the ground of attachment, must be
"shown" that is, proven, while in a complaint it is only necessary to be
stated. It is true that usually the statement under oath is proof. The
exceptional cases, however, are where the affiant, having no personal
knowledge of some of the matters essential to complete averment of the
cause of action, is not in a position personally to prove it. This defect
must be remedied by secondary evidence of the character herein before
pointed out.
Where the attachment is against a non-resident National Bank,
this must be modified accordingly as "the laws of the United States and
located in the state of New Jersey." When the application is made in s
superior city court it should contain further allegations necessary to
bring it within the jurisdiction of the court. It is preferable to bring
all actions against foreign corporations in the Supreme Court.
• Where the action is in the City Court of New York, and the defend-
ant resides and does business in another county of the State, this para-
graph may read, "That the defendant resides and does business in Brook-
lyn, in the county of Kings, and has neither a residence in the city of
New York nor an office therein where he regularly transacts business in
person," or in the proper case the following form may be used in that
court:
"That the defendant is an adult and resides at No. Fifth Avenue,
in the city of New York, but has been continuously without the United
States since the month of January, 1883 (specifying the proper time
PRACTICE—FORMS.
471
Affidavit for Attachment-Absconding.
b. Ground of attachment-absconding.
Deponent further states that the defendant resides at No.
in the city of New York, and is more than twenty-
one years
of age, and that he has departed from this state, or
keeps himself concealed therein with intent to defraud his
creditors or to avoid the service of summons, as deponent is
informed and verily believes.
That the source of deponent's information, and the grounds
of his belief are as follows. [Пlere state the facts necessary to
bring the case within the rules heretofore laid down, as for in-
stance:] That the defendant is indebted to the plaintiff and
to other merchants in the city of New York in an amouut ex-
ceeding dollars, portions of which indebtedness have been
due for a month past. That he has often promised to pay the
plaintiff's claim, but has continually postponed the date of pay.
ment.
That deponent called at his store once a day for the past
week, and was unable to find him in. That the last call was
made yesterday, when deponent was informed by ,who is
the book-keeper in said store, that it would be useless to wait for
the defendant, as he went to Chicago last week, and that
before he started, he stated to him that "as he could not pay
all his debts, he thought he would get away for a while, and let
the storm blow over;" and that he would make arrangements
for disposing of the property as soon as possible.
Deponent verily believes the said statement to be true.
That the said
has refused to make an affidavit thereof
on account of his confidential relations with the defendant.
more than six, prior to the making of the affidavit), and has not made a
designation of a person upon whom to serve a summons in his behalf,
as prescribed in section 430 of the Code of Civil Procedure " [or if that
be the case-"that the only person formerly designated by him to ac-
cept the service of summons is not at present authorized to receive the
same-his authority having been revoked," or "the period for which
such authority was given having expired]."
472
THE LAW OE ATTACHMENT.
Affidavit for Attachment—Removal of Property from State.
o. Another form.
That the said defendant has lately been engaged in con-
verting his property into money, and has sold the goods in his
store [or, his stock and farming utensils], for a less price than
their real value, and has sold off his household furniture, and
has been busily engaged in collecting in all debts and money
owing to him; and that he left his family on Friday last, stat-
ing to deponent and others that he was going to the city of
New York to purchase goods; that since that time he has not
returned to his said residence; that deponent has inquired of
his wife where said defendant had gone, and when he would
return, and was told by her that he had gone to New York
city, and would be back in a day or two; that deponent has
been informed by
of
that he saw the said de-
fendant on Monday last at Buffalo; and that said defendant
informed said that he was then going to the state of
Wisconsin, and intended to purchase a tract of land in that
state, and after he was located he should send for his family
[annex, and refer to affidavit of informant, or state the reason
why it is not given].
>
,
d Grounds, removal of property from the state.
Deponent charges on information and belief that the de-
fendant is about to leave this state and remove property
therefrom with intent to defraud his creditors. That the
source of deponent's information and the grounds of his belief
are as follows:
That the defendant, on Monday last, mortgaged for a cash
loan all his real estate in this state, to wit: his residence at
No. , in the city of for the sum of $
which
is nearly its full value, and that on the next day he sold his
store to brother
for the sum of $ in cash and short
notes, and that he now has no property in this State available
upon execution except his equity in the said real estate. That
the defendant is largely indebted to deponent and other mer-
chants for goods, and no portion of the monies so received has
❞
PRACTICE-FORMS.
473
Affidavit for Attachment-Fraudulent Disposition of Goods.
been applied to the payment thereof. That deponent yester-
day demanded payment of his claim. The defendant said that
he would attend to it in a few days; that he was turning every-
thing into cash to pay his creditors but did not want to pay
anyone until he ascertained whether he would have enough to
go around. Deponent thereupon stated to him that it was
rumored that he had made arrangements to go to Europe. He
then stated that there was no truth in it. Upon being told by
deponent that he was booked on the Servia, he admitted that
he intended to go next Friday, provided he had enough money
left over after paying creditors; that he would settle up with
them first. Deponent then asked him to make some payment
on account, which he refused, but said he would pay it all in a
day or two if deponent would say nothing about his trip and
take no legal proceedings. Otherwise, he stated, “you” (mean-
ing deponent), " may do your best to get your money; I mean
to pay every one, provided they don't push me too hard." De-
ponent was informed to-day, by
the cashier of the
9
Bank, that the defendant had formerly a large deposit
account with his bank, but that he had within a few days drawn
it nearly all out, by a purchase of exchange on London. The
said
refused to make an affidavit herein.
e. Grounds of attachment-Fraudulent disposition.
Deponent further alleges that prior to the purchase of the
goods herein before specified, and for the purpose of procuring
credit in the purchase thereof, the defendant represented and
stated to this deponent that he had a clear surplus of $50,000
in his business and owned the house he lived in, free and clear.
That relying solely on the truth of said statements the said
goods were sold to him on credit. That deponent has since as-
certained and avers the fact to be that the said statements were
wholly false and untrue, to the defendant's knowledge at the
time. That in truth he had no surplus in business, and the
said real estate was encumbered to the extent of $10,000.
That deponent has been informed that during the past six
weeks the defendant has sold large quantities of goods at auc-
474
THE LAW OF ATTACHMENT.
Affidavit for Attachment-Another Form.
tion for cash, at ten per cent. less than cost, and has appropri-
ated the proceeds thereof to his own use. That bills for mer-
chandise for a large amount have matured during that time,
and he has failed to pay anything on account thereof, and that
many of the sales so made have not been entered on his books
of account. And that before purchasing from deponent, the
defendant had formed a scheme to defraud his creditors by
buying largely under false representations, and then turn the
property into cash and refuse payment of his debts. Depo-
nent thereupon, to wit: on the
day of
called on the
defendant and charged him with having disposed of property
with intent to defraud his creditors, and repeated to him the
information received by deponent as above set forth, and in-
sisted upon payment of the amount of the defendant's pur-
chases. That the defendant neither admitted nor denied the
said charges or said statements, but said that he would call on
deponent very soon and pay the same in full, but that he has
failed so to do.'
,
f. Another form.
First :-That on February 9th, 1882, the deceased purchased
of the plaintiff, twenty-five barrels of Jones whiskey, of the
value and at the agreed price of $1,000.19. That the plaint-
iff made such sale, and took the note of the deceased for the
amount, payable in five months, upon the faith of a statement
uttered at the time of the sale, that he, the deceased, made the
purchase, for the purpose of mixing the goods bought, with
other inferior liquors, and thereby increasing the value of
such cheaper liquors.
Second :-That on the 21st day of April, 1882, the plaintiff
also sold the deceased twenty-five barrels of Overholt whiskey,
and fifteen barrels of Dougherty whiskey, of the value and at
the agreed price of $1,524.35. That such sale was likewise
made on the faith of precisely similar representations to the
first, and by means thereof, the plaintiff was induced to accept
¹ These facts come within the case of Blake v. Bernhard, 8 Hun, 897.
PRACTICE—FORMS.
475
Affidavit for Attachment-Fraudulent General Assignment.
in payment of said goods three promissory notes of the de-
ceased for the sum of $508.12 each, dated April 22d 1882,
and payable in four, five, and six months from date.
Third-That the deceased, instead of using said liquors
for the purpose of compounding them with others, immediately
pledged them, with other goods, to two friends, as he stated,
and whose names he refused to disclose, to secure a loan to
himself of $2,500.
Fourth-Subsequently to the creation of the debt, the
plaintiff and the deceased made an agreement, by which the
plaintiff promised to loan the deceased the sum of $1,000,
cash, pay up the alleged indebtedness of $2,500 for which the
deceased had pledged the property, and then hold the property
as security for the entire amount of his claim.
Fifth-When this agreement was to be consummated, the
deceased refused to carry it out, declined to give the names of
the parties to whom the liquors were pledged, and would give
no information as to the place where such liquors were.
Sixth :-That such liquors were not in the store of the de-
fendant. '
g. Fradulent general assignment.
That after the purchase of the goods herein before speci-
fied, to wit, on the day of
the defendant made a
general assignment for the benefit of creditors to one
which instrument was on that day filed in the clerk's office of
the county of, and the said assignee has since entered upon his
trust thereunder. That the said general assignment provides
for the payment of a debt alleged to be due to amounting
to $10,000 by way of preference, and prior to the payment of
the other creditors of the defendant. That the said
was at the time of said assignment a secret partner and not a
creditor of the defendants as I have been informed by
the head book-keeper of the defendant and verily believe.
This form was held sufficient in Weiller . Schreiber, 11 Abb. N.
C. 175.
476
THE LAW OF ATTACHMENT.
Affiravit for Attachment-Another Form,
That said has refused to sign an affidavit on account of
his former relations with the defendant.'
h. About to assign or dispose of property with intent to defraud
creditors.
This deponent says, that, as he verily believes, the said de-
fendant is about to dispose of his property, with intent to de-
fraud his creditors. Deponent further says, that he has,
within the past three or four weeks, several times applied to
the defendant to pay or secure said debt; and the defendant,
on the
day of
last, promised the plaintiffs that he
would take an account of his stock, and show them a state-
ment of his affairs, and give them security on his stock the
next day. He did not call the next day; and deponent, on
the day of
went to said defendant, and he told
deponent he was not going to take an account of stock or give
any security; deponent then told him the plaintiffs would sue
him, and he replied that if they did, he would make an assign-
ment, and they could not get any thing, and he would do
business under somebody else's name."
1. Another form.
Deponent further alleges that on Monday last he presented
the foregoing claim to the defendant at his store and demanded
payment thereof. The defendant said that he was insolvent
and could not pay his debts in full, but that he was willing to
turn his property over to his creditors if they would agree to
apply it pro rata on their claims, and discharge him from all
liability, and that if sued he would make an assignment with
preferences leaving out those suing; that he has since continued
the sale of goods as before and has appropriated all the pro-
ceeds to his own personal use, and has refused to make any
1 These facts were held sufficient in Claflin ». Hirsch, decided by
the General Term of the First Department in March 1884.
• This form is approved in Gasherie v. Apple, 14 Abb. 64.
PRACTICE-FORMS.
477
Attachment on the Ground of Wrongful Conversion of Public Moneys.
payments unless his proposition was accepted by all his cred-
itors.¹
V. That no previous application for a warrant of attach-
ment has been made in this action.*
[Jurat.]
Sworn to before me this
[Title of the cause.]
[Venue.]
[Signature of affiant.]
1884.
day of
>
Form No. 2.
(Affidavit to obtain Attachment on the ground of wrongful
Conversion of Public Moneys.)
being duly sworn, deposes and says:
1. I am, and for more than two years I have been, engaged
in the investigation of frauds perpetrated against the city and
county of New York, under authority conferred upon me by
the comptroller of the city of New York. Among other cases
investigated by me, has been that of the Ninth District Court
House, mentioned in the complaint in this action, and the con-
nection therewith of the defendant
II. A large amount of testimony has been taken in ref-
erence to the defendant's connection with that court house,
both on the trial of an indictment against him, charging him
with having fraudulently obtained money from the plaintiffs on
the pretense of materials furnished for that court house, which
were never furnished, and on an investigation by a committee
of the Senate of the State of New York in reference to
alleged frauds in connection with the erection of that build-
ing. On each occasion the defendant himself was examined
as a witness; on each occasion he introduced witnesses on his
This form is approved in Anthony v. Stype, 19 Hun, 265.
'If there has been a previous application, state the facts and cir-
cumstances under which it was made, and the reasons for applying again
for the warrant.
478
THE LAW OF ATTACHMENT.
Attachment on the Ground of Wrongful Conversion of Public Moneys.
behalf; on each occasion warrants upon which money was
drawn, ostensibly in payment for work, labor and services, or
materials for the court house, were introduced in evidence to
a large amount, indorsed by the defendant, and which has
been by him deposited to his own credit in his own bank.
III. I am familiar with the other matters alleged in the
complaint in this action; and upon the above testimony, the
city warrants indorsed by the defendant, and his own evidence
I am able to state, and I do swear, that at the time herein
mentioned the plaintiffs were, and that they still continue to
be, a municipal corporation, and as such duly created and
existing by and under the laws of the State of New York.
That on or about April 27, 1870, an act was passed by the
Legislature of the State of New York, providing for the
erection of a court house and place for the detention of pris-
oners within the limits of the Ninth Judicial District of the
city of New York, the building and the lands purchased for
the same to be the property of the plaintiffs. That in and by
the said act it was further provided, that the expense to be
incurred in executing the provisions thereof, in addition to
the amount required for the purchase of the site for the said
building, should not exceed the sum of $100,000. That by an
act passed by the Legislature, February 17, 1871, it was fur-
ther provided that the comptroller of the city of New York
should be, and he thereby was anthorized and directed to raise
on bonds of the said city of New York, for the completion of
said building, the sum of $300,000, or so much thereof as
should be certified by the commissioners having in charge the
erection of the said building to be necessary, and by the said
two acts, provision was made for the collection by tax of the
said amounts so authorized to be appropriated in the erection
of the said building.
IV. That pursuant to the said acts a site was purchased in
the Twelfth Ward in the city of New York, for the erection
of the said building, and the construction of a building there-
on proceeded.
V. That between September 28, 1870, and August 28,
¿
PRACTICE-FORMS.
479
$
Attachment on the Ground of Wrongful Conversion of Public Moneys.
1871, there was drawn from the plaintiffs, the same being paid
by the comptroller of the city of New York, in all, the sum of
$244,580.48, on the pretense that the same was due for serv-
ices, labor and materials necessary for, and which had been
rendered and furnished in and about, the construction of the
said building.
VI. That I have seen the warrants by which this payment
was made, and the bills and vouchers for which the warrants
were drawn, and they state claims either for services, labor, or
materials. That of the said sum a large part was received by
the defendant or by other persons to his use, which was by
him applied to his own purposes. It is difficult to state the
amount exactly, but as I am informed by the testimony in the
two proceedings to which I have referred, and as I believe, it
will exceed $150,000.
VII. That the plaintiffs were induced to pay this sum of
money so received from them, by the representation, believed
by them at the time, that work, labor and services had been
rendered, and materials had been furnished, in and about the
construction of the said building, the fair and reasonable value
of which was the sum so received from them. That to the
extent of the said sum so received by the defendant and to
his use, no such work, labor and services were rendered, or
materials furnished, as the defendant well knew at the time.
VIII. That the representations upon which the said sum
of money was received from the plaintiffs, were made by the
defendant or by others through his procurement. It appeared
by the evidence in the two proceedings to which I have
referred, that the concoction of the scheme for a court house,
and all the arrangements in reference thereto, were under the
principal direction, and that, in a very large number of cases,
the very warrants which were paid, ostensibly for materials
obtained from different persons, or services rendered by differ-
ent persons, were collected from the comptroller by the
defendant, and were deposited by him, to his own credit in
his own banks. That the defendant was mainly instrumental
in procuring the passage of the said acts of the Legislature,
480
THE LAW OF ATTACHMENT.
Undertaking on Attachment.
and in devising the scheme for the erection of the said buil-
ding, and that the purpose of the defendant was, through the
pretense of bills for services, labor and materials in and about
the construction of the said building, to obtain from the plaint-
iffs, money to which he was not entitled. That, to the extent
hereinbefore stated, such scheine succeeded, and that thereby
the defendant obtained from the plaintiffs or their attorneys
the said sum.
IX. The plaintiffs claim the same as having been received
to their use, and that the defendant is responsible to return
the same to these plaintiffs, and for the recovery thereof this
action is commenced.
X. That the defendant's trial upon the indictment against
him was in the month of December, 1873. He was convicted
by the jury, and shortly after his conviction, and before the
time fixed for him to receive his sextence, he escaped from
the custody of the sheriff of the said city and county of New
York and absconded, and that though the most strenuous
efforts have since been made to discover his whereabouts, he
still continues concealed.
XI. That no previous application, etc.'
[Jurat.]
Form No. 3.
(Undertaking on Attachment.)
[Title of Cause.]
The above named plaintiff' having applied to one of the
justices of this court for a warrant of attachment against the
property of the above-named defendant on the ground
[state ground same as in warrant].
We
of
and
of No. street, in the city
of No.
street, in the city of do jointly and
severally undertake, pursuant to the statute in such case made
'This form was sustained in the case of Mayor v. Genet, 63 N. Y. 646.
* Or "being about to apply."
PRACTICE-FORMS.
481
Undertaking on Attachment.
dollars, that if the defendant
or if the warrant of attach-.
pay all costs which may be
damages which the defend-
ant may sustain by reason of the attachment, not exceeding
the sum above mentioned.
Dated
18
[Signatures of sureties.]
and provided, in the sum of
recover judgment in this action,
ment is vacated, the plaintiff will
awarded to the defendant, and all
88.
County of
being sworn says, that he is a resident and a [free
or house] holder within the State of New York, and worth
the sum specified in the above undertaking, over all
the debts and liabilities which he owes or has incurred, and
exclusive of property exempt by law from levy and sale under
an execution.
day?
this
[Signature.]
of
Sworn to before
, 18
of
County of
88.
being sworn says, that the is a resident and a free
or householder within the State of New York, and worth
the sum specified in the above undertaking, over all the
debts and liabilities which he owes or has incurred, and exclu-
sive of property exempt by law from levy and sale under an
execution.
day}
[Signature.]
?
me,
›
Sworn to before me this
18
•
,
88.
›
•
County of
I certify that on this day of
18 before me
personally appeared the above-named [names of both sureties],
to me known, and known to me to be the individuals described
in, and who executed the above undertaking, and severally
acknowledged that they executed the same.
[Signature of notary and designation of title.]'
Indorse the approval of the judge on to back of the undertaking.
The following is sufficient: "Undertaking approved as to form and
sufficiency." -, Judge.
81
482
THE LAW OF ATTACIIMENT.
Warrant of Attachment.
Form No. 4.
(Warrant of Attachment.)
The People of the State of New York, to the sheriff of the
county of
Greeting or to the sheriff
of any county in the State.
Whereas, an application has been made to the judge grant-
ing this warrant by plaintiff for a warrant of attachment
against the property of defendant in an action in the
court, and it appearing by affidavit to the satisfaction
of the judge granting this warrant, that one of the causes of
action specified in section 635 of the Code of Civil Procedure
exists against the defendant to recover a sum of money only,
to wit: the sum of dollars, as damages for [here state
the nature of the action], e.g., “the breach of an express con-
tract,” and the affidavit showing that [state the ground
of arrest in the language of the Code, e.g.,
"that the defend-
ant is not a resident of the State,"] and the plaintiff having
also given the undertaking required by law:
Now you are hereby commanded to attach and safely keep
so much of the property within your county which the de-
fendant has, or which he may have at any time before
final judgment in the action, as will satisfy plaintiff's demand
of dollars, together with costs and expenses, and that
you proceed hereon in the manner required of you by law.
Witness [state name of chief justice] at this
day of
in the year one thousand eight hundred and
[Name of attorney.]
9
[Signature of judge.]
>
PRACTICE-FORMS.
483
Notice of Attachment to bind Real Property.
Form No. 5.
Warrant of Attachment on the ground of wrongful conver-
sion of Public Moneys.
The People of the State of New York: To the sheriff of the
city and county of New York, greeting: [or, to the
sheriff of any county of the State of New York:]
Whereas, an application has been made to the officer sign-
ing this warrant, by the people of the State of New York,
plaintiffs, for an attachment against the property of defendant,
in an action for wrongfully obtaining money belonging to the
county of New York; and upon such application, it duly ap-
pearing by [the verified complaint in this action, and by]
affidavit, that a cause of action exists in said action in favor
of the said plaintiffs against said defendant, for the recovery
dollars, with interest thereon from the
day of
; and the said affidavit specifying the amount of the
said claim, and the grounds thereof; and showing that the
said defendant has wrongfully obtained and received money
and property belonging to the county of New York, and has,
while holding a public office, wrongfully converted money
belonging to the county of New York, and the said plaintiffs
having also given the undertaking required by law:
of
Now you are hereby commanded, etc. [continue as in pre-
ceding form.l'
Form No. 6.
Notice of Attachment to bind Real Property.
[Title of the cause, stating names of all the parties.]
Notice is hereby given, that in an action which has been
commenced in this court, by the above-named plaintiffs,
against the above-named defendants, upon [here briefly indi-
'Approved in People v. Tweed, 63 N. Y. 194.
484
THE LAW OF ATTACHMENT.
Sheriff's Certificate on Copy of Warrant.
cate nature of cause of action, for instance], a promissory note
made by the defendant, a warrant of attachment against the
'property of the defendant has been issued. The amount of
the plaintiff's claim, which is stated in the said warrant, is
dollars [with interest from the
18 ], and
costs. The real property levied upon, under said warrant of
attachment is described as follows: All that certain lot [giving
particular description, as in a conveyance].
day of
>
[Date.]
[Signature of attorney, and office address.]
Indorse directions to the clerk as to names of the parties to be
placed in the index.
Form No. 7.
Sheriff's Certificate on copy of warrant and Notice to Third
Person of Levy on Property in his hands.
I hereby certify the within to be a true copy of the orig-
inal warrant of attachment, issued to me in the within men-
tioned action, and that the said warrant is now in my hands,
and that by it I am commanded to attach all the property,
real and personal, including money and bank notes [and things
in action], of the within named defendant [or, if there are
several, say,—of the defendants and or either or any of
them], within my county (except articles exempt from execu-
tion), which he has [or, which they or either or any of them
have], or which he [or, they or either or any of them] may
have at any time before final judgment in the action with
costs and expenses, and to take into my custody all books of
account, vouchers, and other papers relating to such per-
sonal property, debts, credits and effects, remittances and ad-
vances, of said defendant [or, said defendants, or either or any
of them], together with all evidences of title of said defendant
[or, of said defendants or either or any of them], to such real
property. And you will please take notice that all such prop-
PRACTICE—FORMS.
485
Sheriff's Certicate on Copy of Warrant.
erty, debts, credits and effects, and all rights and shares of stock,
with all interest and profits thereon, and all dividends thereon
or therefrom and all bonds, promissory notes and other instru-
ments for the payment of money of the said defendant [or,
of said defendants, or either or any of them], now in your pos-
session or under your control, are, and those which may come
into your possession, or under your control, will be, liable to
said warrant of attachment, and are hereby attached by me,
and you are hereby required to deliver all such moneys, bank-
notes, books, vouchers, papers, debts, credits, effects, evidences
of title to real property, shares of stock, interest, profits, and
dividends thereon and all bonds, promissory notes and other
instruments for the payment of money, and all property
capable of manual`delivery, into my custody without delay.
And I hereby require you to furnish me with a certificate, as
required in that behalf by the Code of Civil Procedure, of any
rights, shares, debts or other property of said defendant [or,
of said defendants or either or any of them], incapable of man-
ual delivery. And in default hereof you will be liable to the
examination and attachment in such case provided by law.
[Signature of] Sheriff of
the [city and] county of
[Date.]
[Address.]
Special clause to be added, where funds of the defendants are in the
hands of brokers.
And I further give you notice, that any and all stocks,
bonds and gold and margins in the possession and control of
yourself or of your firm, or of any member thereof, belonging
to the defendants, or to any one or more of them, or in which
or the proceeds whereof, the defendants, or any one or more of
them, are in any way interested, whether the said stocks, bonds
and gold stand in the name of the defendants, or of any of
them, or of any other person or persons, and any and all ac-
counts of the defendants, or any one or more of them, with
yourself, your firm, or any member thereof, or in which the
said defendants, or any one or more of them, are in any way
interested, whether such accounts are kept in the name of the
486
THE LAW OF ATTACHMENT.
Certificate of Property or Debts.
said defendants, or of any of them, or of any other person or
persons, or in which the said defendants, or any of them, are
in any way interested, and any and all balances of accounts
which shall or hercafter may result in favor of the said defend-
ants, or of any of them on a settlement of accounts with
yourself, your firm, or of any member thereof, are liable to
said warrant of attachment, and are hereby attached by me.
I further hereby require you to furnish me with a certificate
as required in that behalf by the Code of Civil Procedure, of
any and all such stock, bonds, gold, margins, accounts and bal-
ances and in default thereof you will be liable to the examina-
tion and attachment in such case allowed by law.
[Date, signature and address as above.]
Form No. 8.
Certificate of No Property, &c.
[Title of the cause.]
I hereby certify, that no property whatever, of any de-
scription, of the defendants, was, at the time of the service of
the attachment herein on me, nor a any time since has been,
held by me for the benefit of said W. F. D.; and that no
such property, of said W. F. D. was then, or at any time
since has been, in my possession or under my control, and that
I am not, and have not been since said service indebted to him
in any sum whatever.
[Signature.]
[Date.]
To M. N., Sheriff of the
[city and] county of
Form No. 9.
Certificate of Property or Debts.
I hereby certify, that I held at the time of the service of
the attachment on me in the above entitled action, and still
PRACTICE—FORMS.
487
Undertaking by Plaintiff, &c. to Hold Goods in the Hands of a Carrier.
hold 500 shares of stock in Ontario Mining Company as security
for the loan of $2,500 made to the defendant by me, and
which is payable on the
day of
No portion of
which loan has been paid. That I have not held any other
property in which the defendant is interested, and that I am
not, and have not been since said service indebted to him in
any sum whatever.
[Date.]
[Signature.]
•
Form No. 10.
Undertaking by plaintiff, &c., to Hold Goods in the Hands
of a Carrier.
}
A
[Title of the cause.]
An attachment having been issued in the above-entitled
action, and delivered to the sheriff of the county of
against the property of the defendant, and the plaintiff having
caused, or desiring to cause the same to be levied upon goods
of the defendant which have heen shipped at within
this State, for transportation, without reshipment or transship-
ment in this State, to a port or place without the State, to
wit, upon a vessel, known and designated as
whereof
is owner [or, master]:
>
Now, therefore, the plaintiff [or, the agent or attorney of
the plaintiff in the above-entitled action' [stating occupa
tion and residence of signer, as in other cases], and C. D., of
No.
street, in the town of
and county
J
of
>
in the State of New York, merchant, do hereby
jointly and severally undertake to and with said [owner or
master], pursuant to the statute, in the sum of
dollars,
¹ See Campbell r. Conner, 70 N. Y. 424; 41 Super. Ct. (J. & S.)
459.
• Under Code Civ. Pro. § 652, the undertaking must be executed
by the plaintiff himself, or by his agent or attorney. As to the necessary
request from the plaintiff to the agent or attorney, in order to entitle the
latter to recover over against the plaintiff for money paid, in case the
undertaking should be enforced, see Gager v. Babock, 48 N. Y. 154.
488
THE LAW OF ATTACHMENT.
Bond upon claiming an American vessel, or a share therein.
to pay to the said [owner or master] all the expenses, damages,
and charges, which may be incurred by him, or to which he
may be subjected, for unloading the goods from the vessel, and
for all necessary detention of the vessel for that purpose.
[Date.]
[Signatures.]
[Add affidavits and acknowledgments of sureties as in Form
No. 8.]
[Approval of Judge to be indorsed on the back of the
undertaking.]
"I hereby approve the within undertaking as to form, the
sum specified therein, and the sufficiency of the sureties."
[Signature of Judge.]
[Date.]
Form No. 11.
>
?
D. of the
Bond upon claiming a Domestic Vessel, or a share therein.
Know all men by these presents, that we A. B. of the
of
of the
, by occupation a
and C.
, of of the , by occupation a
and E. F. of the of of the
by occupation a
are held and firmly bound in the sum of
to be paid to the people of the State of New York, for which
payment, well and truly to be made, we bind ourselves, our
heirs, executors, administrators and assigns, jointly and seve-
rally, firmly by these presents.
.
dollars,
Sealed with our seals, and dated this
day of
18
•
The condition of this obligation is such that if the above-
named A. B. shall establish in an action to be brought on this
bond, that he was the owner' of the [designate vessel] hereto-
fore seized under a warrant of attachment, granted by Hon.
a justice of the supreme court, by the sheriff of the
>
'If the applicant owns a share or interest therein, only, have the
same specified, as "the owner of a one-fourth interest in."
PRACTICE-FORMS.
489
edgment.)
Order for discharge of Vessel from Attachment.
[city and] county of [New York] at the time of such seizure;
or in case the said A B shall fail to establish such ownership
on his part as aforesaid, if he shall pay on demand the sum of
[the valuation] with interest from the date of this bond, to the
sheriff of the [city and] county of [New York,] or in case the
attachment aforesaid be discharged, to Y Z, defendant, or his
cxecutors, administrators or assigns; then this obligation to be
void, otherwise to remain in full force and virtue.
Sealed and delivered in }
[Signatures.]
presence
[Witness.]
(Justification in double the apparised value and acknowl-
(Approval of Court or Judge.)
Form No. 12.
Order for discharge of Vessel from Attachment.
[Title of cause.]
A warrant of attachment having been granted by me against
the property of the defendant in this action, and the [designate
vessel] having been seized by the sheriff of the [city and]
county of [New York], under and by virtue of such warrant,
which vessel is claimed by A B, of as his property,
and a sufficient bond having been given according to the
?
statute.
Ordered: That the said [designate vessel] be discharged
from attachment under the warrant aforesaid, and that the
sheriff deliver the same to the said A B.'
[Date.]
[Signature.]
1 If the order is made at Special Term, modify accordingly.
}
490
THE LAW OF ATTACHMENT.
Affidavit by Agent of owner of Foreign Vessel.
Form No. 13.
Affidavit by Agent of owner of Foreign Vessel to secure its dis-
charge from Attachment.
[Title of cause.]
[Venue.]
OK being duly sworn, says:
I. That he resides in the [city] of [New York], and that
he has been for
years past the agent of A B of
and that said A B is not now in this State, and has not been
within the same for past, but resides at aforesaid.
II. That this deponent has had the consignment of the
[designate vessel] on every occasion that she has visited this
port for
years past, and has attended to the loading and
unloading, chartering and freighting of the said vessel, and
has collected freight money due upon her cargo on every such
occasion, and has always followed the instructions of the said
A B in reference thereto, and accounted to him for moneys
received on account of said vessel, and to no other person
whatever, except to the captain, whose name is under
the instructions, and as the agent of the said A∙B.
III. That this deponent is informed, and for the above
and many other reasons verily believes, that the said vessel
belongs solely and exclusively to the said A B, and that Y Z,
the defendant in the above-entitled action, has not now, had
not at the time the attachment issued in the above cause, and
never had any right, title, claim, share or interest in or about
the said vessel or appurtenances.
IV. That on or about the
day of
the sheriff
of the [city and] county of [New York], seized upon the said
vessel, and claims to hold the same by virtue of a warrant of
´attachment granted in tlie cause aforesaid, by
, a justice
of the [supreme] court.
V. That the said vessel docs not belong to any port in the
United States, but to a foreign port, to wit, the port of
[Jurat.]
[Signature.]
"
PRACTICE-FORMS.
491
Bond by Plaintiff to claimant of a Foreign Vessel.
Form No. 14.
Order to show cause upon above affidavit.
[Title of cause.]
Upon the affidavit of hereunto annexed, let the
plaintiff or his attorney show cause before ine at chambers,'
at the
in
on the day of
1.8 at
9
•
,
o'clock in the forenoon, why the vessel mentioned in
the saiḍ affidavit should not be valued, and the plaintiff be
required to execute a bond according to the statute, or the said
vessel be delivered up to the claimant thereof.
[Date.]
[Signature.]
Form No. 15.
Bond by Plaintiff to claimant of a Foreign Vessel.
Know all men by these presents, that we, C D (the attach-
ment plaintiff) E F and G II, all of the (city of New York,
are held and firinly bound unto A B (the claimant), in the
sum of
dollars (double the valuation), for which pay-
ment, well and truly to be made, we bind ourselves, our heirs,
executors and administrators, jointly and severally, firmly by
these presents.
day of
•
•
Sealed with our seals, and dated the
18
Whereas, the above bounden C D has commenced an
action against Y Z, in which action an attachment has been
granted against the property of the said Y Z by (one of
the justices of the supreme court), in pursuance of chapter
seven, title three, of the Code of Civil Procedure.
And whereas, the sheriff of the (city and) county of (New
York) has, under and by virtue of the same, seized a certain
vessel called the
belonging to a foreign port, to wit,
,
If the motion is made returnable at Special Term, modify accord-
ingly.
492
THE LAW OF ATTACHMENT.
Order discharging Foreign Vessel from Attachment for want of a Bond.
of which vessel the said A B claims to be
the port of
,
the owner.
And whereas, upon such claim being made in due form of
law, appraisers were duly appointed, who have valued the said
vessel with her appurtenances, at the sum of dollars, and
three days not having elapsed since such valuation was made.
Now, therefore, the condition of this obligation is such
that if the said CD shall pay all such damages as may be
recovered in an action to be brought against the said C D, or
the said sheriff upon this obligation within three months from
the date hereof, if it shall appear in such suit that the above-
named A B was the owner of the said vessel at the time of
attaching it; then this obligation to be void, otherwise to
remain in full force and virtue.
In witness whereof we have hereunto set our hands and
seals, the day and year first above written.
[Signatures and seals.]
Sealed and delivered in the
presence of
(Justification in double the appraised value and acknow-
ledgment, as in Form 3.)
(Approval of court or judge, as in Form 10.)
Form No. 16.
Order discharging Foreign Vessel from Attachment for want
of a Bond.
[Title of cause.]
•
On reading and filing the return of the appraisers hereto-
fore appointed by me to value the foreign vessel
accord-
ing to the statute, and upon due proof of service of notice of
such return upon the plaintiff's attorney in this cause, and it
appearing that no bond was executed within three days after
such service now on motion of
Esq., counsel for the
said A B.
•
PRACTICE-FORMS.
493
Affidavit by Plaintiff to procure leave to sue in aid of Attachment,
IT IS ORDERED that the said vessel be discharged from at-
tachment by the sheriff of the county of
and delivered
>
up to said A B or his agents according to law.
[Date.]
[Title of the attachment suit.]
[Venue.]
[Judge's signature.]
Form No. 17.
Affidavit by Plaintiff to procure leave to sue in aid of Attach-
ment.
being duly sworn, says:
,
I. That he is the plaintiff above-named.
II. That this action was brought by him to recover of the
defendant above named [state briefly its nature], and is now
pending in this court [state condition of cause].
>
III. That on the day of
18 this plaintiff
applied in this action for a warrant of attachment against the
property of the defendant, as a provisional remedy under title
3 of chap. 7 of the Code of Civil Procedure, and such pro-
ceedings were thereupon had, that such a warrant, a copy
whereof is hereto annexed, was thereafter duly issued therein
and delivered to sheriff of the county of
IV. That, as deponent is informed and believes, one
then had in his possession [specifying property], belonging to
the above-named defendant [or, was indebted to said defend-
ant in the sum of dollars for; [here state briefly the
causes of action on which plaintiff seeks to sue].
,
V. That, as deponent is informed and believes, on the
day of
18 said sheriff, by virtue of said warrant,
duly levied upon said cause of action, and debt, by taking the
said note into his actual custody [or if a chose in action not
capable of manual delivery, duly levied upon said property
and right of action by leaving a certified copy of the warrant,
and a notice showing that said was attached, with said
],' whereby, for the benefit of plaintiff, said sheriff be-
'Or otherwise allege such a levy, as is described in § 649.
494
THE LAW OF ATTACHMENT.
Order authorizing Plaintiff to sue in name of Himself and the Sheriff.
and said
came entitled to receive from said
answerable to said sheriff for said
VI. That, as deponent is informed by (said sheriff] and be-
lieves, no other property was levied on under said attachment
[or, otherwise show reasonable necessity of collection from the
third person, in order to secure plaintiff™s demand].
>
>
VII. That, as deponent is informed by and believes
said notwithstanding said levy and due demand, refuses
to pay over or account to the said sheriff for said
and
said sheriff has been unable to collect the same [or, to reduce
the same to possession]; and that an action is necessary to
recover the same.
VIII. That deponent desires leave to bring and maintain,
in the name of himself and the sheriff jointly, by his own at-
torney and at his own expense, such action or actions as are
by law allowed in such case.
IX. That, as deponent is informed by said sheriff and
believes, no other attachment has been levied on said cause of
action or debt [except an attachment levied on the
of
whose attorney is
at suit of one
street, in
No.
certificate of the sheriff.]
[Jurat.]
became
day
of
‚][or annex and refer to a
[Signature.]
[Title of the cause.]
On reading and filing the annexed affidavit of
the
day of
·
Form No. 17.
Order authorizing the Plaintiff in Attachment to sue in name
of himself and the Sheriff.
At a special term, etc. [may be
made at chambers by the judge
who granted the warrant¹].
dated
18 and proof of service of due
•
?
¹ Where the warrant is granted out of court, the order may be made
by the judge who granted it at chambers.
PRACTICE-FORMS.
495
Return to Attachment.
notice upon
the sheriff therein named [and upon
the plaintiff in the junior attachment therein mentioned], and
on motion of counsel for plaintiff, [after hearing, &c., in
opposition.]
ORDERED, that the plaintiff above named have leave to
bring and maintain in the name of himself and the said sheriff
jointly, by his own attorney, and at his own expense, and sub-
ject to the direction of this court and the judge thereof, any
action which he may be advised is necessary for the purpose
of collecting and recovering the debts, effects, and things in
action attached by said sheriff, at the suit of said plaintiff, by
or of re-
[Venue.]
I,
virtue of the attachınent in said affidavit mentioneer
ducing to actual possession all articles of ersonal operty
capable of manual delivery, which have bee VESTOR but
of which said sheriff has been unable to obtainion.
PROVIDED however, and this order is upon condition that
[here specify terms, conditions, and regulations imposed, if
any.]

Form No. 18.
Return to Attachment.
9
9
sheriff of the county of hereby certify
and return, that by virtue of the within attachment, I have
seized and taken into my possession the property of the de-
fendant within named, specified in the inventory hereto an-
nexed, and appraised the property therein specified at the sums
therein mentioned.
[Signature.]
[Date.]
In lieu of this general provision the particular action may in a
proper case be specified.
496
THE LAW OF ATTACHMENT.
Order for Sale of Perishable Property.
Form No. 19.
Inventory referred to in the Annexed Return.
[Title of the cause.]
We, sheriff of the county of
and
and
two disinterested freeholders of said county, do hereby
?
?
>
certify that the following is a true inventory of the property
seized by Hon. the said sheriff, on a warrant of attach-
ment, issued in the above entitled action by a justice
of the Court [or, county judge of the county of ],
together with a statement of the books, vouchers and papers
taken into the custody of said sheriff on said warrant, and the
value of each article of personal property, and also a true state-
ment of such articles thereof as are perishable. [llere set forth
the personal property attached, with the value set opposite each
item.
9
Also a description of the real property attached, with the
value of each separate parcel.]
[And we further certify, that the following is perishable
property. State items of perishable property.]
[Date.]
[Signatures.]
Form No. 20.
Order for Sale of Perishable Property.
[Title of the cause.]
It appearing to me, by the inventory returned to the war-
rant of attachment issued by me in this action, that a portion
of the property seized by the sheriff of the county of
under said warrant, to wit [fifty crates of peaches], is perish
able:
ORDERED, that the portion of the property so specified in
the inventory as perishable, be sold by said sheriff by public
auction, at [specify the place of sale], after
days [such
PRACTICE—FORMS.
497
Motice of Motion on the Original Papers, to Vacate or Modify the Warrant.
time as may be reasonable under the circumstances], previous
notice of the time and place of such sale being given by him
in writing, posted in three or more public places in and
by advertising the same days in the
printed at
[Judge's signature.]'
[Date.]
newspaper
Form No. 21.
Notice of Motion on the Original Papers to Vacate or Modify
the Warrant, or to Increase the Security, or Both. ·
[Title of the cause.]
o'clock in the
Please take notice, that upon the warrant of attachment in
this action, and the papers upon which it was granted, the de-
fendant will move the court, at a special term to be held, [or,
if the warrant was granted by a Judge out of court, will apply
to naming the Judge who granted it], at the County Court
House in the city of
on the
day of
at
noon, or as soon thereafter as
counsel can be heard, for an order to vacate the said warrant
of attachment [or to modify the same, stating in what partic-
ulars] [or, to increase the security given by the plaintiff] [or
for one or more of these forms of relief, together or in the
alternative], and such other or further relief as may be just;
[and, if the order moved for is asked in any part on the
ground of irregularity, add] upon the ground, among others,
of irregularity, in that [here designate particulars complained
of], with costs of this motion.
[Date.]
[Address to]
[Signature and office address of],
Defendant's attorney.
Plaintiff's attorney.
'This may also be made a court order. If the property consists of
live animals, the judge will require a notice of the application for the
order to be given to all the parties interested. The order may be found-
ed on affidavits instead of the sheriff's return.
32
498
THE LAW OF ATTACHMENT.
Undertaking on Discharging Attachment.
Form No. 22.
Notice of Motion to Discharge Attachment, as to All or Part
of the Property, on giving Security.
•
[Title of cause.]
day of
?
Please take notice, that on [describing papers, if any], 1
shall move this court at a special term, to be held at [chambers
at] the City Hall [or, the County Court House] in
the
18 at
o'clock in the
noon, or as soon thereafter as counsel can be heard [or, shall
move before Mr. Justice
at his office, in the city of
day of
18 in the noon],
for an order that the attachment granted in this action, and
dated the
18 be discharged as to the
whole or a part of the property attached [or, if the relief is
sought only as to a part specify the part], on giving due se-
curity.
>
on the
,
day of
>
>
[Date.]
[Address to]
Plaintiff's attorney.
Form No. 23.
Undertaking on Discharging Attachment.
[Title of the cause.]
[Date.]
9
ou
[Signature and office address of]
Defendant's attorney.
A warrant of attachment having been issued in the above
action, to the sheriff of the [city and] county of [against
the property of the defendant], and the above-named
having appeared in the action, and now applying to the judge
who granted the warrant [or, to the above-mentioned conrt],
for an order to discharge the same [as to a part of the property
attached]:
Now, therefore, we, M. N., of No.
street, in
PRACTICE-FORMS.
499
the city of
of No.
>
Order Discharging Attachment on Security.
and county of
>
merchant, and O. P.,'
street, in said city, merchant, hereby
jointly and severally undertake,' pursuant to the statute, that -
said will, on demand, pay to the above-named plaint-
iff the amount of any judgment which may be recovered
against the above-named [or any of them] in this action
[whether jointly or severally], not exceeding dollars,
[Signatures.]
with interest.
Signed and delivered in the presence of
[ Witness.]
[Acknowledgment of proof; affidavit of sufficiency or jus-
tification, and approval, as in Form No. 3.
File undertaking with clerk of the court, and serve cer-
tified copy with notice of filing.]
[Date.]
[Address to]
Form No. 24.
Notice of Filing Undertaking, Indorsed on Copy Served.
Please take notice, that within is a copy of an undertaking
given to procure discharge of attachment in the within action,
which was filed with the clerk of this court on the day
of
18
[Signature and office address of]
Defendant's attorney.
Plaintiff's attorney.
Form No. 25.
Order Discharging Attachment on Security.
[At a Special Term, &c.]
[Title of the cause.]
The defendant having appeared in this action, and having
given sufficient security for the plaintiff's demand:
At least two sureties are necessary, but it is not essential that
defendant join. Code of Civ. Pro. § 812.
* Required by § 812.
500
THE LAW OF ATTACHMENT.
Affidavit to Procure Discharge of Attachment.
ORDERED, that the attachment granted by me against the
property of the above-named Y. Z., on the
day of
18, be set aside, and the sureties given in said undertaking
exonerated [or, be discharged]; and that any and all proceeds
of sales and moneys by said sheriff collected, and all the prop-
erty attached remaining in his hands, be delivered and paid
by him to the defendant or his agent, and released from the
attachment.
[Date.]
[Judge's signature.]
Form No. 26.
Affidavit to Procure Discharge of Attachment as to Interest of
a Copartner in Firm Property.
[Title of the cause.]
[Venue.]
A. B., being duly sworn, says:
I. That he is a copartner of the above-named C. D., the
defendant in this action under the firm name of B. & D. in
the business of
at No.
street, in the city
of
, county of
in this State, where they have a
stock of goods [briefly describing them], belonging to [here
state distinctly the relative interests of the partners so as to
show the value of the defendant's interest.]
?
?
II. That this action is brought against deponent's said
partner individually on a cause of action against him alone,
and this deponent has not been made a defendant therein; and
is not, nor is he alleged to be, liable in any way thereon.
III. That on the
day of
18 a warrant of
attachment, granted in this action, against the property of said
C. D., was levied by the sheriff of the county of
, upon
the interest of the said defendant C. D. in the aforesaid goods
and chattels, and the said sheriff has [here state facts as to levy
and possession].
IV. That [here state the condition of the cause, showing
that] final judgment has not yet been entered in the action.
9
PRACTICE-FORMS.
501
To Discharge Interest in Partnership Goods and Chattels from Attachment.
V. [Here allege any ground besides copartnership interest,
which may be relied on as impeaching the attachment.]
[Jurat.]
[Signature.]
Form No. 27.
Undertaking on Application to Discharge Interest in Partner-
ship Goods and Chattels from Attachment.
[Title of the cause.]
•
of , being about to apply for an order that the
attachment heretofore issued in this action to the sheriff
of
against the property of the defendant C. D., be dis-
charged as to the interest of said C. D. in the goods and chat-
tels of the firm of B. & D.
>
,
Now, therefore, we [naming at least two sureties, with their
residences and occupations], do hereby jointly and severally un-
dertake, pursuant to the statute, that we will pay to the sheriff
of the county of on demand, the amount of any judg-
ment which may be recovered against said defendant C. D.,
or which may be recovered against him in any other action
wherein the said A. B. is not a defendant, and wherein a war-
rant of attachment or an execution may come to the hands of
the said sheriff of the county of
at time before the
any
?
warrant of attachment in the above-entitled action is vacated
or annulled, not exceeding the sum of
dollars.
[Date.]
[Signature.]
[Add acknowledgment, justification and approval of judge.]
502
THE LAW OF ATTACHMENT.
Affidavit to Discharge Attachment as to Non-Leviable Property.
Form No. 28.
Affidavit on Application to discharge Attachment as to Non-
leviable Property belonging to Defendant and
his Copartner.¹
[Title of the cause.]
[Venue.]
W. W. R., of Baltimore, in the State of Maryland, being
duly sworn, says:
I. That on the
day of
18 this deponent
became a member of the firm of W. F. & S., of Baltimore,
aforesaid, having been, previous to said day, their clerk and
book-keeper, on a salary, but without any interest whatever in
their business. That said firm is now composed of the above-
named defendants and this deponent, and has been so composed
since said day.
II. That said firm, since the said day, has, from time to
time, for the account of its numerous customers and dealers in
Baltimore, caused stocks, bonds and gold to be bought and
sold in New York, through II. & Co., brokers in New York,
and correspondents of said firm of W. F. & S., and that mar-
gins and moneys derived from and furnished by the customers
and dealers of said firm in Baltimore, from time to time, since
said day, have been forwarded to and remitted to said firm of
H. & Co., to serve as moneys and margins in their hands on
account of the transactions entered into by them, for the
account of the said firm, acting as brokers for Baltimore
dealers.
III. That all the moneys, funds, credits and property of
This and the connected affidavit were sustained by Barry v.
Fisher, 8 Abb. Pr. N. S. 369. But compare Smith v. Orser, 42 N. Y.
132; and Code of Civ. Pro. § 693. If made ex parte (see § 696), insert in
the affidavit an allegation that no previous application has been made,
&c. See Rule 25.
PRACTICE—FORMS.
503
Corroborating Affidavit by the Fund Holder.
said firm of W. F. & S., standing to their credit with, or held
by said firm of H. & Co., were remitted by said firm of W.
F. & S., since this deponent became a member of said firm,
and are applicable, and should be applied in settlement of the
affairs and liabilities of said firm as at present constituted, and
that the rights and interests of its creditors and this deponent
may be and are seriously injured by the attempt to attach the
funds and property standing to the credit of the present firm
on account of [designating the alleged cause of action against
the old firm], and which took place, if ever, several months
before deponent became a member of said firm, and that the
undertaking given on the issuing of this attachment herein is
utterly inadequate.
[Jurat.] *
[Signature.]
Form No. 29.
Order Discharging Attachment as to Partnership Fund.
[At a Special Term, &c.]
[Title of the cause.]
>
,
On reading and filing the affidavit on which the attachment
in this action was granted, verified by A. B. [the plaintiff here-
in] on the
day of
18 and the attachment and
notices thereof, served by the sheriff on Messrs. II. & Co., the
affidavits of W. W. R. [&c.], verified [&c.], the certificates
made and delivered to the sheriff by II. & Co., and the order
to show cause heretofore granted on the
day of
,
day of
18 and proof of due service thereof [and an undertaking
given on the part of W. F. & S., dated the
18], and after hearing F. F. M., Esq., and I. S., Esq., in
support of said order to show cause, appearing specially on the
part and behalf of the above named [naming the persons], for
the purposes of the motion only and E. R. R., Esq., and A.
J. V., Esq., in opposition:
¹ From Barry v. Fisher, 8 Abb. N. S. 369.
504
THE LAW OF ATTACHMENT.
Order Discharging Attachment as to Partnership Fund.
ORDERED, that the execution of the attachment, and the
service of the notices by the sheriff of the city and county of
New York of the attachment issued herein on H. & Co., be
and the same are hereby declared ineffectual for the purpose of
attaching the funds, balances, and property in their hands,
standing to the credit, or held for the account, of the present
firm of W. F. & S., composed of the defendants and W. W. R.
And it is further ordered,' that the funds, balances, and
property with said H. & Co., so standing to the credit of, or
held for the account of, the said present firm of W. F. & S., at
the time of the issuing of the said attachment, and at all times
subsequent thereto, be, and the same are hereby released and
discharged from the effect and operation of said attachment."
¹ This paragraph is appropriate only where the original levy was
illegal.
See Ellsworth v. Scott, 8 Abb. N. C. 9..
STATUTORY PROVISIONS.
505
Attachments.
CHAPTER XXVIII.
ATTACHMENTS.
THE statutory provisions of the several states and territories
on attachment, are as follows:
Alabama. An attachment may issue for the collection of a
debt, whether due or not; for any money demand, the amount
of which can be certainly ascertained, to recover damages for
the breach of a contract where the damages are not certain or
liquidated; where the action sounds in damages merely, upon
affidavit made by the creditor or his agent that the debtor
absconds, secretes himself, or resides ont of the state, so that
process cannot be served upon him, or is about to remove his
property out of the state, whereby the plaintiff may lose his
debt or be compelled to sue for it in another state'; or that the
debtor has fraudulently disposed of, or is about fraudulently
disposing of his property; or that he has money, property, or
effects liable to satisfy his debts, which he fraudulently with-
holds; and stating the amount due, and that the attachment is
not sued out for the purpose of vexing or harassing the debtor,
and upon the plaintiff's executing bond payable to the defend-
ant in double the amount sworn to be due, an attachment may
issue against the estate of the defendant, real and personal.
Attachments auxiliary to suits pending may be issued on the
same grounds as original attachments, in which case the suits
proceed as if commenced by original attachment.'
The plaintiff, his agent or attorney, is required to enter into
' Rev. Code, § 2927, et seq.; Code of Ala. § 8252, et seq.
506
THE LAW OF ATTACHMENT.
Attachments.
a bond in double the amount claimed by the plaintiff, with suf-
ficient surety. The number of sureties is not fixed by statute;
though two are usually required by the officer approving the
bond. Sureties need not be the owners of real property. The
plaintiff, his agent or attorney, may make the affidavit.
A non-resident of the state may sue ont an attachment
against the property of a non-resident for an existing debt, or
ascertained liability; but the plaintiff, his agent or attorney, is
required, in addition to the oath necessary in other cases, to
swear that, according to the best of his knowledge, informa-
tion and belief, the defendant has not sufficient property
within the state of his residence wherefrom to satisfy the debt;
and must also give bond as in other cases, with surety resident
in this state. Process of attachment may issue against foreign
corporations having property in the state, for the recovery of
debts, or to recover damages for a breach of contract when the
damages are not certain or liquidated, or in cases where the
action sounds in damages merely, in the same manner and
subject to the same rules as in case of neutral persons residing
without the state.*
Arizona. In an action upon a contract for the direct pay-
ment of money, "which contract was made or is payable in
this territory" and is not secured by mortgage, lien, or pledge,
etc., or, if secured, the security has been rendered nugatory by
defendant, and in all cases brought upon contract against a
non-resident, an attachment will be issued by the clerk upon
receiving an affidavit showing the foregoing facts, and the
further fact that the sum for which the attachment is asked is
a bona fide debt, due and owing from defendant to plaintiff,
and that the attachment is not songht, and the action is not
prosecuted, to hinder, delay, or defraud any creditor of the
defendant, and an undertaking in a sum not less than the
amount claimed by plaintiff, with two sufficient sureties, to
the effect that if the defendant recover judgment, or if the
¹ Code of Ala. § 8258.
• Ib. § 8263.
STATUTORY PROVISIONS.
507
Attachments.
attachment shall be discharged on the ground that the writ
was improperly issued, the plaintiff will pay all costs that may
be awarded to the defendant and all damages which he may
sustain by reason of the attachment not exceeding the sun
mentioned in the undertaking. The writ will be levied by
the sheriff, and when (and not till so) levied it will become a
lien upon all property of the defendant in the territory not
exempt from execution. This writ operates as a garnishment
when served by the sheriff upon a debtor of defendant by de-
livering to and leaving with such debtor a copy of the writ
and a notice that the debts owing by him to defendant are
attached. The statute provides in detail how each class of prop-
erty is to be attached. The lien of the attachment operates to
secure any judgment which may subsequently be recovered
in the action.
Arkansas. The property of a debtor in this state who is a
non-resident, or who absconds or secretes himself, or who has
been absent from the state four months, or who has left the
state with intent to defraud creditors, or who has left the
county to avoid service of a summons, or who is about to
remove or has removed his property out of the state, or who
has sold or is about to sell or convey his property with fraudu-
lent intent to cheat, hinder or delay creditors, may be taken in
attachment for debt; or, in an action to recover 'possession of
personal property, where it has been ordered to be delivered
to the plaintiff, and where the property or part thereof has
been disposed of, or concealed, or removed, so that the order
for its delivery cannot be executed by the officer. But an
attachment shall not be granted where the debtor is a foreign
corporation or a non-resident, for any claim other than a debt
arising upon contract. In order to warrant an issuance of the
attachment, the creditor must file in the office of the clerk of
the circuit court of the county where debtor resides, or with
the justice of the peace, as the case may be, a bond, with one
or more sureties, conditioned to pay all damages the debtor
may sustain if the order of attachment is wrongfully obtained;
508
THE LAW OF ATTACHMENT.
Attachments.
also, his complaint, duly sworn to, showing the nature and
amount of the debt, that it is just, and the existence of some
one of the grounds for attachment above mentioned. In
an action by a vendor of property fraudulently purchased, to
vacate the contract and have a restoration of the property or
compensation therefor, where the complaint shows such fraudu-
lent purchase of property and the amount of the plaintiff's
claim, and is verified by his oath, an attachment against the
specific property may be granted.
California. In this state the plaintiff at the time of issuing
the summons, or at any time afterwards, may have the pro-
perty of the defendant attached as security for the satisfaction
of any judgment that may be recovered, unless the defendant
gives security to pay such judgment, in the following cases:
1. In an action upon a contract, express or implied, for the
direct payment of money, where the contract is made or is
payable in this state, and is not secured by any mortgage or
lien upon real or personal property, or any pledge of personal
property; or if originally so secured, such security has, with-
out any act of the plaintiff, or the person to whom the security
was given, become valueless.' 2. In an action upon a contract,
express or implied, against a defendant not residing in this
state. The grounds of attachment are substantially the same
as in New York.
Colorado. Attachments of property are allowed upon filing
bond with security (generally two sureties who must be owners
of real property in the state) in double the sum claimed to be
due, and an affidavit of the indebtedness of the defendant
stating the nature and amount thereof, and showing any one
of the following causes, to wit: That defendant is a non-resi-
dent of the state; that defendant is a foreign corporation, or
is a corporation whose chief office or place of business is out
of this state; that defendent conceals himself, or stands in de-
fiance of an officer, so that process of law cannot be served
¹ C. C. P. § 538.
• C. C. P. §§ 597–539.
STATUTORY PROVISIONS.
509
Attachments.
upon him, or that defendant has for more than four months
been absent from the state, or that for such length of time his
whereabouts have been unknown, and that the indebtedness
mentioned in the affidavit has been due during all the said
period; that he is about to remove his property or effects, or
a material part thereof, out of this State, with intent to defraud
or delay his creditors, or some one or more of them; that he
has fraudulently conveyed, transferred, or assigned his property
or effects so as to hinder or delay his creditors, or some one or
more of them; that he has fraudulently concealed, removed,
or disposed of his property or effects so as to hinder or delay
his creditors, or some one or more of them; that he is about
fraudulently to conceal, remove or dispose of his property or
effects so as to hinder or delay his creditors, or some one or
more of them, or that such debtor has departed, or is about to
depart from this state, with the intention of having his effects
removed from this state; that he has failed or refused to pay
the price or value of any article or thing delivered to him,
which he should have paid for, upon the delivery thereof;
that defendant has failed or refused to pay the price or value
of any work done, or for any service rendered by the plaintiff,
at his request, and which should have been paid at the com-
pletion of such work, or when such services were fully ren-
dered; or that he fraudulently contracted the debt or fraudu-
lently incurred the liability respecting which the suit is
brought, or by false representations, or false pretenses, or by
any fraudulent conduct procured money or property of the
plaintiff. Attachments are also allowed in all actions brought
upon overdue promissory notes, bills of exchange, other written
instruments for the direct payment of money, and upon book
A
accounts.
Writs of attachment may issue upon debts not due, if the
affidavit states any of the cases mentioned except the first,
second, and third. The affidavit may be made by agent or at-
torney of plaintiff. Property of defendant not exempt may
be attached, and debtors garnished in same proceeding. At-
taching creditors share pro rata if actions are bought to the
510
THE LAW OF ATTACHMENT.
·
Attachments.
same term, and also with judgments rendered at same term.
Attachments may also be issued in aid of a pending suit for
any of above causes. In urgent cases writ may issue on Sunday.
Connecticut. An attachment of debtor's property cannot
be had before debt is due. An attachment is served by attach-
ing the goods or lands of the defendant, or, if no goods can
be found, by attaching the person, when liable to attachment.
If the plaintiff is irresponsible, or a non-resident, a bond for
costs is required from some substantial inhabitant of this state.
Goods concealed in the hands of agents, so that they cannot be
attached, or debts due from any person, are attachable by pro-
cess of foreign attachment. Attachments hold until the
execution is levied, provided the execution be levied within
sixty days after final judgment, when person estate is attached,
and within four months when real estate is attached. No as-
signment of future earnings can prevent their attachment,
when earned, unless made to secure a bona fide debt, the
amount of which is therein stated, and the term definitely
limited; nor unless recorded in the town clerk's office, and a
copy thereof left with the employer.
Dakota. An attachment may issue in an action arising
npon contract for the recovery of money only; or in an action
for the wrongful conversion of personal property, against a
foreign corporation; or against a defendant who is not a resi-
dent of this Territory; or against a defendant who has ab-
sconded or concealed himself; or whenever the defendant is
about to remove any of his or its property from the Territory;
or las assigned, disposed of or secreted, or is abont to assign,
dispose of, or secrete any of his or its property, with intent to
defraud his creditors. The plaintiff, at the time of the issuing
of the summons, or at any time afterwards, may have the
property of the defendant attached as a security for the satis-
faction of such judgment as he may recover. The warrant is
granted by the clerk of the court in which the action is brought
upon affidavit made by the plaintiff, or other person having
STATUTORY PROVISIONS.
511
4}
Attachments.
knowledge of the facts, specifying the amount of the claim
and the grounds thereof; and stating, in the words of the
statute, that the defendant is either a foreign corporation or
not a resident of this Territory, or has departed therefrom
with intent to defraud his creditors, or to avoid the service of
a summons, or keeps himself concealed therein with the like
intent; or that the debt was incurred for property obtained
under false pretences; or that such corporation or person has
removed, or is about to remove, any of his or its property from
the Territory with intent to defraud his or its creditors; or has
assigned, disposed of, or secrcted, or is about to assign, dispose
of, or secrete, any of his or its property with the like intent,
whether such defendant be a resident of this Territory or not.
Plaintiff must give resident security in an amount not less than
two hundred and fifty dollars, and equal to the amount of the
claim specified in the affidavit, by undertaking, proved or ack-
nowledged as deeds of real estate, with one or more sureties
resident of this Territory, who must justify as being residents
and householders or freeholders within this Territory and
worth double the sum specified in the undertaking, over all his
debts and liabilities and exclusive of all property exempt from
execution by the laws of this Territory. (C. C. P. §§ 197–202.)
A non-resident can obtain an attachment against a non-res-
ident, on the ground of the latter's non-residency.
Real and personal property may be attached, including
debts, credits, money, and bank-notes, except property exempt
from execution.'
Attachment may issue, in an action on a claim, before it is
due, when a debtor has or is about to dispose of his property,
or is about to remove his property, or a material part thereof,
with the fraudulent intent to cheat or defraud his creditors, or
to hinder or delay them in the collection of their claims, or
when the debt was incurred for property obtained under false
pretences.*
' Dak. C. P. §§ 197-202.
* Dak. C. P. §§ 217-218.
512
THE LAW OF ATTACHMENT.
Attachments.
Delaware. A domestic attachment may be issued against
an inhabitant after a return of non est to summons or capias
delivered to officer ten days before return, and proof of cause
of action; or upon affidavit made by plaintiff or other credi-
ble person and filed with the pothonotary, "that the defend-
ant is justly indebted to the plaintiff in a sum exceeding
fifty dollars, and has absconded from the place of his nsual
abode or gone out of the State with intent to defraud his
creditors or to elude process as is believed." The proceeds of
sales of property attached are distributed among all creditors.
General assignment for the benefit of creditors or proceed-
ings under the insolvent law, will not affect levy, under either
execution or attachment, prior to assessment.
No security is required of plaintiff. The defendant to dis-
charge attachment must give real estate security in double the
amount of the debt or demand. Not more than one sufficient
security is required. Attachment cannot issue on immatured
claim.
A foreign attachment may be issued, even at the suit of a
non-resident plaintiff, against any person not an inhabitant,
after a return as above, or upon affidavit as above, "that the
defendant resides out of the State and is justly indebted to the
plaintiff in a sum excceding fifty dollars." It may also be
issued against foreign corporations. The plaintiff has the
benefit of his own discovery.
District of Columbia. Writs of attachment and garnishment
may be issued whenever plaintiff, his agent or attorney, shall
file in clerk's office, at commencement or during pendency of
suit, an affidavit (supported by testimony of one or more wit-
nesses) showing grounds upon which he bases action, and set-
ting forth that plaintiff has just right to recover against
defendant; and also stating either that defendant is a non-
resident of the District; or evades service of ordinary process
by concealing himself or withdrawing from the District tem-
porarily; or has removed, or is about to remove, some of his
property from the District to defeat just demands. Plaintiff
STATUTORY PROVISIONS.
513
Attachments.
must also file his undertaking with sufficient surety, to be
approved by clerk, to make good all costs and damages by rea-
son of wrongful suing out of attachment. One surety is suf-
ficient; real estate owner not necessary, though usual. At-
tachment cannot issue except upon suit brought; if the right
to sue is complete it may issue in the above cases.
If defendant, his agent or attorney, shall file an affidavit
traversing plaintiff's affidavit, the court shall determine
whether the facts set forth in the plaintiff's affidavit are true,
and whether there was just ground for issuing writ of attach-
ment; and if the facts do not sustain affidavit, the court shall
quash writ of attachment or garnishment; and this issue may
be tried by a judge at chambers, on three days' notice.
A
The thing attached shall not be discharged from custody of
officer seizing it until defendant shall deliver, either to the
officer or to the clerk, to be filed in the cause, his undertaking,
with sufficient surety, to satisfy and pay final judgment of
court against him. If defendant fail to execute snch under-
taking, the court may sell thing attached whenever satisfied
that it is in the interest of the parties it should be sold before
final judgement.'
Interrogatories in writing with copy of rule of court
concerning attachment may be served on garnishee at time
of service of attachment or any other time. Answer under
oath to such interrogatories must be filed within ten days,
otherwise judgment against garnishee, as in case of con-
demnation.
Florida. Attachments may issue under the existing laws of
this State upon the party applying for the same (although he
be a non-resident of the State), or his agent or attorney, first
making oath in writing before a justice of the peace or clerk
of the circuit court that the amount of the debt or sum de-
manded is actually due; and that he or she has reason to
believe the party from whom it is due will fraudulently part
with his, her, or their property before judgment can be re-
'Rev. St. D. C. §§ 782–784.
33
514
THE LAW OF ATTACHMENT.
Attachments.
covered against him, her, or them (as the case may be), or is
actually removing his, her, or their property out of the State
of Florida, or about to remove it out of the State, or resides
beyond the limits thereof, or is actually removing or about to
remove out of the State, or absconds or conceals himself or
herself, or is secreting his or her property, or fraudulently
disposing of the same. But no attachment shall issue until the
party applying for the same, by himself or his agent or
attorney, shall enter into a bond with at least two good and
sufficient sureties, payable to the defendant in at least double
the debt or sum demanded, conditioned to pay all costs and
damages the defendant may sustain in consequence of im-
properly suing out said attachment.' It is not necessary that
they be freeholders.
An attachment may also issue in all cases when persons are
actually removing or about to remove beyond the judicial
district in which he, she, or they reside.
When any executor or administrator resides, or has re-
moved beyond the limits of this State, and there are assets of
the testator or intestate in this State, it may be lawful for any
person having a debt or demand against the estate of the
deceased to take out an attachment against such assets, npon
making oath in writing that the debt or sum demanded is
actually due, and that the executor or administrator (as the may
be) resides or has removed beyond the limits of the State."
Writs of attachment may also be obtained whether the debt or
demand be due or not; provided that the same will become due
within nine months from the time of applying for said writs
of attachment; and provided also, that at the time of such
application the person against whom the debt or demand is
charged shall be actually removing his or her property be
yond the limits of this State; or be fraudulenty disposing of
or secreting the same, for the purpose of avoiding the pay
ment of his or her just debts and demands. Such writ of
1 Bush's Dig. p. 85:
Acts, 1860, p. 50.
* Bush's Dig. p. 86.
STATUTORY PROVISIONS.
515
N
Attachments.
attachment as is herein provided for shall in no case be issued
unless the party applying for the same, or his agent or attorney,
shall first make oath in writing that the amount of the debt or de-
mand claimed and charged against the opposite party is actually
an existing debt or demand; stating also in said oath, in writing,
the time when said debt or demand will actually become due
and payable; and also that the party against whom the said
writ of attachment is applied for is actually removing his or
her property beyond the limits of this State, or (as the case
may be) is fraudulently disposing of or secreting the same for
the purpose of avoiding the payment of his or her just debt
or demand; satisfactory proof of which shall be demanded
and produced to the officers granting such attachment.
翦
​No writ of attachment provided for in this act shall issue
in any case until bond with security, as herein before pro-
vided for, be given.'
Provision is made for the issuing of writs of attachment
in courts of justices of the peace, where the sum demanded
exceeds five dollars.*
The grounds of attachment are similar to those enumer-
ated above from Bush's Digest, p. 85; to which may be
added, “or that the defendant resides in any other county, and
more than one hundred miles from the residence of the justice;
or that the defendant contracted the debt under fraudulent
representations." In other respects the proceedings are simi-
lar to those prescribed by the circuit court. A general assign-
ment will not affect prior attachments.
Georgia. Attachments for debts may issue: When the
debtor resides out of the State, when he is actually removing
or is about to remove without the limits of the county, when
he absconds, when he conceals himself, when he resists a legal
arrest, when he is causing his property to be removed beyond
the limits of the State, when the debtor is in possession of the
'Bush's Dig. p. 87.
*Act 1875, ch. 2040, §§ 67-81.
516
THE LAW OF ATTACHMENT.
*
*
Attachments.
property for the purchase of which the debt was created to be
levied only on the property described in the affidavit; when
he puts a fraudulent lien on his property; when a debtor
shall sell or convey or conceal his property liable for payment
of his debts to avoid payment of the same. In this case at-
tachment only issued by judge of Superior Court upon cause
shown. In cases where attachment cannot issue, the creditor
cannot scize the property of the debtor until after judgment,
except by garnishment based on suit at law, by bill in equity,
or by statutory creditors' bill against insolvent traders. In all
cases where attachment may issue, or in cases where suit is
pending or where judgment has been obtained, the plaintiff
shall be entitled to process of garnishment by which the party
garnished is required to return under oath what he is indebted
to the debtor, or what property, money, or effects he has in
his hands belonging to the debtor. The daily, weekly, and
monthly wages of journeymen, mechanics, and day laborers,
are not subject to garnishment. Before the attachment can
issue it must appear by an affidavit of the creditor or his
agent or attorney that some one of the grounds above enumer
ated exists; and the amount of the debt claimed to be due
must also appear. Bond, with security in at least double the
amount of debt, must accompany the affidavit. Under the
Statute (Acts 1880–81), a bill may be brought by one or more
creditors having a debt or debts matured and due and unpaid,
and payment of which has been demanded and refused against
a debtor who is insolvent and a trader (i. e., one engaged in,
buying and selling, a banker, broker or manufacturer of more.
than $5,000 worth per annum). Upon such bill being filed,
the chancellor may, under such proceedings as are usual in
equity, appoint receivers, masters, etc., etc., to take charge of,
collect and distribute assets of debtor. Any creditor can be-
come a party to this bill at any time before final distribution.
No creditor can by mortgage or assignment given after bill
is filed, nor by judgment or lien obtained upon proceedings
commenced after bill is filed, acquire any prior or preference
over others.
STATUTORY PROVISIONS.
517
Attachments.
Idaho Territory. The plaintiff at the time of issuing the
summons, or at any time afterwards, may have the property of
the defendant attached as security for the satisfaction of any
judgment that may be recovered, unless the defendant give
security to pay such judgment, in the following cases: In an
action upon a contract, express or implied, for the direct pay-
ment of money, where the contract is not secured by any
mortgage or lien upon real or personal property, or any pledge
of personal property, or, if originally so secured, such security
has without any act of the plaintiff, or the person to whom
the 'security was given, become valueless; in an action upon
a contract against a defendant not residing in this Territory,
The justice of the peace, or clerk of the court, issues the
writ upon receiving an affidavit by or on behalf of the
plaintiff, showing that defendant is indebted to plaintiff, speci-
fying the amount over and above all legal set-offs and counter
claims upon an express or implied contract for the direct pay-
ment of money, and that the payment has not been secured,
and that the debt is bond fide and owing from defendant to
plaintiff, and that the attachment is not sought and action not
prosecuted to hinder, delay, or defraud creditors; and also an
undertaking on part of plaintiff, in a sum not less than two
hundred dollars, nor exceeding the amount claimed by
plaintiff, with two sufficient sureties."
A warrant of attachment will not issue unless the claim is
due.
Ë
When the property of the defendant is in the form of a
debt, credit, or other personal property not capable of manual
delivery, or the personal property in the possession of another,
such property may be garnished.
KANZEN
Illinois Attachment for debt will issue if the creditor, his
agent or attorney, shall file an affidavit in the office of the
clerk of the court, setting forth that any person is indebted
to such creditor in a sum exceeding $20, stating the nature
of indebtedness, after allowing all just credits and set-offs, and
¹ 2d Sess. pp. 172, 178; 8d Sess. p. 91; 7th Sess. p. 25.
518
THE LAW OF ATTACHMENT.
Attachments.
that such debtor is not a resident of this State, or where the
debtor conceals himself, or stands in defiance of an officer so
that process cannot be served on him, or where the debtor
has departed from this State with the intention of having his
effects removed from this State, or where the debtor is about
to depart from this State, with the intention of having his
effects removed from this State, or where the debtor is about
to remove his property from this State to the injury of such
creditor, or where the debtor has within two years prior to the
filing of such affidavit fraudulently conveyed or assigned his
effects or a part thereof so as to hinder or delay his creditors,
or where the debtor has within two years prior to the filing
of such affidavit fraudulently concealed or disposed of his pro-
perty so as to hinder or delay his creditors, or where the
debtor is about fraudulently to conceal, assign, or otherwise
dispose of his property or effects so as to hinder or delay his
creditors, or where the debt sued for was fraudulently con-
tracted on the part of the debtor; provided the statements of
the debtor, his agent or attorney, which constitute the fraud,
shall have been reduced to writing, and his signature attached
thereto by himself, agent or attorney. The creditor in suing
out the writ of attachment must give a bond, with sureties, in
double the amount sworn to be duc. In all attachments
against the same debtor or debtors, returnable to the same
term of court, the attaching creditors share pro rata in the
property levied upon by all. When an officer is unable to
find property sufficient to satisfy the attachment, he is re-
quired to summon all parties within his county, whom the
creditor shall designate as having property, effects, etc., or
who may be indebted to the debtor. When any such persons
shall have been served as garnishees, the creditor may pre-
pare and file interrogatories to such garnishces; to which
interrogatories the garnishecs are required to "file answers
under oath. If it shall appear that such garnishces have any
property or credits of the debtor, the court may grant an
attachment to be levied on such property or credits. Writs
of attachment may be granted against the personal estate,
STATUTORY PROVISIONS.
519
Attachments,
goods, chattels, money, choses in action, credits and effects of
the debtor, by justices of the peace, in all civil actions cogniz-
able before them, where the demand does not exceed the juris-
diction of justices of the peace, viz., $200, for the same cause
as attachments may be issued out of courts of record, and
npon filing with the justice a sufficient affidavit and bond to
the debtor with sufficient security, to be approved by the jus--
tice, in a penalty at least double the amount of the creditor's
demand.'
Indiana. Process of attachment may be had at the com-
mencement, or in aid of a suit, by any plaintiff, either resi-
dent or non-resident, against the property of a defendant,
where the action is for the recovery of money, when the de-
fendant is a foreign corporation or a non-resident, secretes
himself, or is about leaving the State, or is removing his
property therefrom, or has sold or is about selling or disposing
of his property, with intent to defraud his creditors. Writs of
attachment issue only upon the proper affidavit filed and writ-
ten undertaking given to pay the defendant all damages he
may sustain, if the proceedings of the plaintiff shall be wrong-
fal or oppressive. No special number of sureties are required,
nor need they be freeholders or householders necessarily.
They must satisfy the officer taking and approving the secur-
ity. The bond and affidavit must be filed before the writ
issues. Attachment proceedings are only auxiliary to a regu-
lar suit. After the property of a defendant is attached, any
other creditors may file their clains under the original attach-
ment by entering their complaint, affidavit, and bond, at any
time before final adjustment of the suit. If judgment be ren-
dered in attachment and the property sold, the money realized
from sale and garnishees, after paying costs and expenses, is,
under direction of the court, paid to the several creditors pro
rata on the amount of their claims as adjusted. There is no
¹R. S. 147; Underwood, 135.
•
i
520
THE LAW OF ATTACHMENT. '
Attachments,
advantage gained by the original attaching creditor over
others.'
A recent statute makes the wages of laborers an exception
to the general rule of attachment above given. It is now a
misdemeanor to send or cause to be sent out of the State any
debt to be collected by proceedings in attachment, garnish-
ment, or other mesne process, when the creditor, debtor, and
person or corporation owing for the earnings intended to be
reached are each and all within the jurisdiction of the courts
of this State, or to assign such.'
After March 27, 1879, no court in this State shall have or
entertain jurisdiction in any action of attachment, garnish-
ment, or supplementary proceedings, when the plaintiff and
principal defendant are both non-residents of this State and
the money sought to be reached by such attachment, etc., is
the personal earnings or wages due or owing to the principal
defendant from any person or corporation doing business in
this State.'
Affidavits to procure process of attachment, garnishment,
ne exeat, replevin, and the like, must contain the statutory
facts and may be made by the party or his agent or any other
person in his behalf. There are no special provisions for
attorneys making affidavits in behalf of their clients; they
stand just as the client. Attachments cannot issue upon claims
not due.
Iowa. All property not exempt from execution may be
attached by filing a sworn petition verified by the party, or, if
facts are known to his agent or attorney, by such agent or
attorney, alleging: 1st, that the defendant is a foreign corpor-
ation or acting as such; or, 2d, that he is a non-resident of the
State; or, 3d, that he is about to remove his property out of
the State without leaving sufficient remaining for the payment
of his debts; or, 4th, that he has disposed of his property (in
1 2 G. and H. 187, et seq.
* Acts 1879, pp. 44, 45.
*Acts 1879, p. 115.
STATUTORY PROVISIONS.
521
I
Attachments.
whole or in part) with intent to defraud his creditors; or, 5th,
that the defendant is about to dispose of his property with
intent to defraud his creditors; or, 6th, that he has absconded
so that the ordinary process cannot be served upon him; or, 7th,
that he is about to remove permanently out of the county, and
has property therein not exempt from execution, and that he
refuses to pay or secure the plaintiff; or, 8th, that he is about
to remove permanently out of the State, and refuses to pay or
secure the debt due the plaintiff; or, 9th, that he is about to
remove his property, or a part thereof, out of the county with
intent to defraud his creditors; or, 10th, that he is about to
convert his property, or a part thereof, into money for the
purpose of placing it beyond the reach of his creditors; or,
11th, that he has property or rights in action which he con-
ceals; or, 12, that the debt is due for property obtained under
false pretenses.
The property of a debtor may be attached before the debt
becomes due, when nothing but time is wanting to fix an
absolute indebtedness, if the petition, in addition to that fact,
states, 1st, that the defendant is about to dispose of his prop-
erty with intent to defraud his creditors; or, 2d, that he is
about to remove from the State, and refuses to make any
arrangements for securing the payment of the debt when it
falls due, and which contemplated removal was not known to
the plaintiff at the time when the debt was contracted; or, 3d,
that the defendant has disposed of his property in whole
or in part with intent to defraud his creditors; or, 4th,
that the debt was incurred for property obtained under false
pretenses.
The sheriff must levy upon property fifty per cent. greater
in value than amount of claim, but before writ can issue
plaintiff must file bond, with one or more sureties, who must
make oath that they are residents of the State, worth double
the sum to be secured, and owning property in this State
subject to execution equal to the sum to be secured, in penalty
double the amount of property sought to be attached.
The sheriff shall summon such persons as garnishces as the
522
THE LAW OF ATTACHMENT.
Attachments.
plaintiff may direct; and attachment by garnishment is ef-
fected by leaving with the person a written notice that he is
required not to pay any debt due by him to the defendant, or
thereafter to become due, and that he must retain possession
of all property of said defendant then or thereafter in his
custody or under his control, in order that the same may be
dealt with according to law; and plaintiff may direct sheriff to
take the answers of garnishee or to require him to appear at
next term of court to answer snch interrogatories as may be
propounded to him.' A valid attachment levied before assign-
ment will not be affected thereby.
Kansas. In an action for the recovery of money, an at-
tachment may be had against the property of the defendant
(and this attachment may be obtained as well by a non-resident
as by a resident of this State). The affidavit of the plaintiff,
his agent or attorney, must be made at or after the commence-
ment of the action, stating the nature of the plaintiff's claim,
that it is just, the amount which the affiant believes the plain-
tiff ought to recover, and the existence of some one or more
of the following grounds: First, when defendant, or one of
several defendants, is a foreign corporation or a non-resident of
the state (but in this case for no other claim than a demand
arising upon contract, judgment or decree, unless the cause of
action arose wholly within the limits of this State, which fact
must be established on the trial); or second, when the defend-
ant, or one of several defendants, has absconded with the in-
tention to defraud his creditors; or third, when the defendant
has left the county of his residence to avoid the service of a
summons; or fourth, so conceals himself that a summons can-
not be served upon him; or fifth, is about to remove his pro-
perty, or a part thereof, ont of the jurisdiction of the court,
with the intent to defraud his creditors; or sixth, is about to
convert his property or a part thereof into money for the pur-
pose of placing it beyond the reach of his creditors; or
seventh, has property or rights in action which he conceals;
1 Title xviii., ch. 1.
STATUTORY PROVISIONS.
523
Attachments.
or eighth, has assigned, removed or disposed of, or is about to
dispose of, his property or a part thereof, with the intent to de-
fraud, hinder or delay his creditors; or ninth, fraudulently
contracted or incurred the debt, liability or obligation on which
the suit is brought; or tenth, where the suit is brought for
damages arising from the commission of some felony or mis-
demeanor, or the seduction of any female; or eleventh, when
the debtor has failed to pay for any article or thing delivered,
for which by contract he was bound to pay upon delivery.'
--
•
Where a debtor has sold, conveyed, or otherwise disposed
of his property, with the fraudulent intent to cheat or defraud
his creditors, or to hinder or delay them in the collection of
their debts, or is about to make such sale, conveyance or dis-
position of his property, with such fraudulent intent, or is
about to remove his property, or a material part thereof, with
the intent or to the effect of cheating or defrauding his credi-
tors or of hindering or delying them in the collection of
their debts, a creditor may bring an action on his claim before
it is due and have an attachment against the property of the
defendant, but an order of the judge of the court must be had
allowing such attachment.
To obtain an attachment an undertaking must be given on
the part of the plaintiff in double the amount of the claim,
with one or more sureties, to be approved by the clerk of the
court, or in an action before a justice of the peace, to be ap-
proved by the justice. Sureties need not be owners of real
estate.
Kentucky. The plaintiff may have an attachment against
the property of the defendant, or of a garnishee, in an action
for the recovery of money, where the action is against: 1. A
defendant, or several defendants, who, or some one of whom,
is a foreign corporation, or a non-resident of the State; or, 2.
Who has been absent therefrom four months; or, 3. Has de-
parted from the State with intent to defraud his creditors; or,
4. Has left the county of his residence to avoid the service of
1 Dass. Comp. Laws, § 3817.
524
TIIE LAW OF ATTACHMENT.
J
Attachments.
summons; or, 5. So conceals himself that a summons cannot
be served upon him; or, 6. Is about to remove or has removed
his property, or a material part thereof, out of this State, not
leaving enough therein to satisfy plaintiff's claims, or the
claims of the said defendant's creditors; or, 7. Has sold, con-
veyed, or otherwise disposed of his property, or suffered or
permitted it to be sold, with the fraudulent intent to cheat,
hinder or delay his creditors; or, 8. Is about to sell, convey,
or otherwise dispose of his property with such intent. But an
attachment shall not be granted on the ground that the defend-
ant or defendants, or any of them, is a foreign corporation or a
non resident of this State, for any claim other than a debt or
demand arising upon contract. To obtain an attachment the
plaintiff must file an affidavit, showing: 1. Nature of plain-
tiff's claim. 2. That it is just. 3. The amount which the af-
fiant believes the plaintiff ought to recover; and, 4. The exis-
tence of some one of the grounds above enumerated. No
attachment will issue until bond and security is given in double
the amount of claim, with probable costs. One surety is suf-
ficient. Must have property in this State subject to execution,
double amount of bond. An attachment and garnishment may
also be granted against a defendant, who has no property in
this State subject to execution, where the plaintiff's debt would
be endangered by delay.'
Before a debt or liability on contract becomes due an equit-
able action may be brought for indemnity, and attachment
against defendant's property or order of arrest obtained by
order of court on similar grounds as above stated and after bond
given as above provided."
Louisiana. Writs of attachment issue on application of
creditor, under oath, when the debtor is about leaving the
State permanently, without there being a possibility, in the or-
dinary course of judicial proceedings, of obtaining or execut-
ing judgment against him previons to his departure; or, when
■ Code of Prac. title 8, ch. 8.
• Civil Code, §§ 237–248.
STATUTORY PROVISIONS.
525
•
Attachments.
the debtor resides out of the State; when he conceals himself
to avoid being cited and forced to answer to the suit intended
to be brought against him; when he has inortgaged, assigned,
or disposed of, or is about to mortgage, assign or dispose of his
property, rights or credits, or some part thereof, with intent to
defraud his creditors or give an unfair preference to some of
them; and when he has converted, or is about to convert, his
property into money or evidences of debt with intent to place
it beyond the reach of his creditors. Creditor must furnish
bond exceeding by one-half the amount claimed to be due,
with at least one solvent surety, residing within the jurisdic-
tion of the court, conditioned for payment to debtor of all
damages sustained by him in case it is decided that the attach-
ment was wrongfully obtained.
Maine. Property, real or personal, except what is exempt,
may be attached for debt, no affidavits being required, and no
security for costs unless the creditor is a non-resident of the
State; and liens thus created hold in the order in which the
attachments are made until thirty days after the rendition of
judgment, within which time they may be perfected by levy
of execution. Perishable goods or property liable to great
depreciation by keeping, being attached, may be sold imme-
diately by consent of parties or by appraisal caused to be made
under the statute by the officer, upon request of the attaching
creditors, and the proceeds held by the officer in lieu of the
property.'
Maryland. Attachments are authorized in this State against
any kind of property or credits belonging to the defendant in
the hands of the plaintiff or of any one else, or unoccupied
real estate, in cases where the defendant is, 1st, a non-resident
of this State (notwithstanding the plaintiff be a non-resident).
2d, where he absconds-and one may become an absconding
debtor without leaving the State. The above attachments are
issued by the clerk of court, on warrants from a judge or jus-
1 R. S. ch. 81, §§ 21-59.
526
THE LAW OF ATTACHMENT.
Attachments.
tice of the peace. An affidavit that defendant is bona fide in-
debted, and has absconded, or is a non-resident, accompanied
by the evidences of indebtedness, that is, account, note, bond,
etc., is required before the warrant is granted. The affidavit
required may be made before any justice of the peace, or any
judge of a court of law in this State, or before any judge of a
court of record of the United States, or of any State, district,
or territory of the United States, or before a commissioner ap-
pointed by this State to take acknowledgment of deeds, or be-
fore a notary public, or, if out of the United States, before a
consul or vice consul of the United States. The affidavit may
be made by the creditor, or one of them, where more than
one, or by the agent of the creditor or creditors, by the presi-
dent,, cashier, or other officer of a corporation, by any executor
or administrator, or by guardian of an infant, or by the infant
himself, or by the husband of a married woman, or by the
committee of a lunatic.' 3d. On original process based on
account, note, bond, or other evidence of debt, with affidavit
made before clerk of court from which attachment shall issue
that defendant named in writ is bona fide indebted, and that
plaintiff knows or has reason to believe, first, that the debtor
is about to abscond from this State; or, second, that the de-
fendant has assigned, disposed of, or concealed, or is about to
assign, dispose of, or conceal his property, or some portion
thereof, with the intent to defraud his creditors: or, third,
that the defendant fraudulently contracted the debt, or incurred
the obligation respecting which the action is brought; or,
fourth, that the defendant has removed, or is about to remove
his property, or some portion thereof, out of this State with
the intent to defraud his creditors. Every clerk before issuing
an attachment on original process must take from the plaintiff,
or some person on his behalf, a bond to the state with security,
to be approved by the clerk in double the sum claimed, for
satisfying all costs which may be awarded to such defendant,
or to any other person interested, and all damages which may
Rev. Code art. 67, IV.
STATUTORY PROVISIONS.
527
Attachments.
be recovered against the plaintiff for wrongfully suing out
such attachment. 4th. Attachment on judgment or decree is
treated as an execution and governed by like rules. An execu-
tion by way of attachment may issue at any time within twelve
years from date of judgment. 5th. Where two summonses
have been returned non est against a defendant, the plaintiff,
on proof of his claim by affidavit and the production of the
written evidence of the debt, if any, shall be entitled to an
attachment, and thereupon the proceedings are the same as
against absconding debtors. 6th. Attachment on petition and
proof of debt incurred by a married woman, against her
property in cases where it has been earned by her industry or
skill, to the value of one thousand dollars or less. 7th. In
actions for illegal arrest or false imprisonment, for amount of
damages claimed. Attachment proceedings are strictly con-
strued. The salary of a public officer, or employé of a muni-
cipal corporation, or funds in hands of government due its
agents, are not attachable; nor property or funds in custody of
law, or under control of a court, in hands of its trustee.
Wages, hire, or salary not due at date of attachment, of what-
ever kind, cannot be attached, and the sum of one hundred
dollars, out of what is due, is exempted.' Justices of the
peace have jurisdiction in attachments where the claim is under
one hundred dollars. As to procedure by claimants of prop-
erty attached or taken in execution, not belonging to defend-
ant, and as to sale of perishable property attached, see Revised
Code, art. 67, IV. §§ 41, 43, 27. No judgment of condemna-
tion nisi shall be made absolute where the garnishee has failed
to appear or plead, without proof by the plaintiff of his case, in
the same manner as in case of judgments by default ex parte.
Massachusetts. All real estate, goods, and chattels, liable
to be taken on execution, may be attached upon the original
writ, and by special precept of the court during the pendency
#48 Md. 180.
* Hinkley and Mayer on Law of Attachment in Maryland.
Act 1880, ch. 28.
$528
THE LAW OF ATTACHMENT.
Attachments.
of any suit or proceeding on institution of which an attach-
ment would have been authorized, and held as security to sat-
isfy such judgment as the creditor may recover; provided, that
no attachment of lands or tenements shall be made on a writ
returnable before a trial justice, or police district, or municipal
court, unless the debt or damage demanded exceeds $20. In
attaching real estate, or any interest therein, a copy of the
writ, and so much of the officer's return thereon as relates to
the attachment of the estate, must be deposited in the office of
the clerk of the courts for the county in which the lands lie,
or, in counties where there are more than one register of deeds,
in the registry for that part of the county where the lands lie,
and in Suffolk County (Boston) in the registry of deeds, and
the attachment takes effect as against a bona fide purchaser or
subsequent attaching creditor only from the time of filing the
copy. Personal property attached may, by consent of parties,
be sold, and the proceeds held by the officer in place thereof,
and, if perishable, or if it cannot be kept without dispropor-
tionate expense, may be appraised and sold, and the proceeds
held in place thereof. Shares in corporations organized under
Massachusetts laws, or those of the United States, may be at-
tached. Real estate fraudulently conveyed to or held by third
parties may be attached specially. Attachments may at any
time before final judgment be dissolved by giving bond, with
sufficient sureties, with condition to pay to the creditor the
amount, if any, that be recovers within thirty days after final
judgment. They may also be dissolved by giving bond to pay
in like manner the value of the property attached. One of
several co-defendants may give the bonds. In case of bank-
ruptcy of defendant after a lapse of four months from the date
of attachment a special judgment may be had against the
sureties. If the creditor is not an inhabitant of the state the
writ of attachment must be indorsed by some sufficient person,
who is such inhabitant, and the indorser is thereupon liable for
all costs which may be awarded against the creditor. There
are also ample provisions for the attachment of goods, effects,
•
•
$29
STATUTORY PROVISIONS.
Attachments.
AMANDAMANO TADA
and credit of a defendant in the hands of third parties by
trustee (garnishee) process."
Michigan. Creditors may proceed by attachment against
the property of their debtors by making and annexing to the
writ an affidavit of "the plaintiff, or some one in his behalf,"
stating that the defendant therein is indebted to the plaintiff
and specifying the amount of such indebtedness as near as may
be over and above all legal set-offs (which amount must ex-
ceed one hundred dollars), and that the same is due upon con-
tract express or implied or upon judgment, and containing a
further statement that deponent knows or has good reason to
believe either,-1st. That the defendant has absconded, or is
about to abscond from this State, or that he is concealed
therein to the injury of his creditors; or, 2d. That the defend-
ant has assigned, disposed of, or is about to assign, dispose of,
or conceal any of his property with intent to defraud his
creditors; or, 3d. That the defendant has removed or is about
to remove any of his property out of this State with intent
to defraud his creditors; or, 4th. That he fraudulently con-
tracted the debt or incurred the obligation respecting which
the suit is brought; or, 5th. That defendant is not a resident
of this State, and has not resided therein for three months
immediately preceding the time of making such affidavit; or,
6th. That the defendant is a foreign corporation."
A creditor may also proceed by attachment in justice's
court in any action founded on a judgment or on a contract,
express or implied, if the plaintiff or some one in his behalf
shall make and file with the justice an affidavit specifying as
near as may be the amount due to him and that he knows or
has good reason to believe either,-1st. That the defendant
has assigned, disposed of, or concealed, or is about to assign,
dispose of, or conceal any of his property with intent to de-
fraud his creditors; or, 2d. That he is about to remove any of
his property from the county in which such application is
* See St. 1881, ch. 124, 802; St. 1875, ch. 144; St. 1876, ch. 167.
* Comp. Laws, 1802, 1803.
1
84
530
THE LAW OF ATTACHMENT.
Attachments.
made, or from the county where the defendant resides, with
the like intent; or that he has removed or is about to remove
himself or his property from the county and refuses or neg-
lects to pay or to secure the payment of the debts; or, 3d.
That he fraudulently contracted the debt or incurred the obli-
gation respecting which the suit is brought; or, 4th. That the
defendant has absconded to the injury of his creditors or does
not reside in this State and has not resided therein for one
month immediately preceding the time of making the
application. 5th. That the defendant is a foreign corpor-
ation.
One day may intervene between the date of the jurat and
that of the writ; and when the person making the affidavit
lives in any other county in this State one day may intervene
for each thirty miles between his residence and the place
where the writ is issued. The effect of attachment in either
case is to hold the property until judgment can be obtained
and an execution issued and levied. The defendant may have
the property returned by executing a bond to pay the judg
ment. A non-resident may proceed by attachment against
another non-resident, if any property can be found here upon
which to levy. But in that case, unless the defendant should
appear, he would not be bound by the judgment, and the
plaintiff's procedure would be one simply in rem against such
property as he could reach.
Minnesota. Attachments are allowed in actions for recov-
ery of money against property of defendant, at time of issuing
summons, or any time thereafter, and are allowed in favor of
residents and non-residents without distinction, on same
grounds. They are not allowed unless a cause of action has
accrued. Writ obtained from judge of district court, or com-
missioner of the court where suit is brought, when it appears
by affidavit made by the plaintiff, his agent or attorney, that a
cause of action exists against the defendant, specifying amount
and ground thereof; that defendant is a foreign corpora-
tion or non-resident, or has departed from the State as depo-
STATUTORY PROVISIONS.
531
CA, SINNERWARE,
Attachments.
nent verily believes, with intent to defraud or delay his credi-
tors, or to avoid service of summons, or keeps himself
concealed with like intent; or that he has assigned, secreted,
or disposed, or is about to dispose, of his property, with intent
to delay or defraud creditors, or that the debt was fraudulently
contracted. Before writ issues, bond is required from
plaintiff, with sufficient sureties, that he will pay all costs and
damages which may be sustained by defendant by reason of
the attachment, in case defendant recovers judgment in the
action. Penalty not less than two hundred and fifty dollars;
and sureties, by rule of court, must be residents and free-
holders and justify in full amount of bond.
The writ is not allowed in cases of libel, slander, seduction,
breach of promise of marriage false imprisonment, or assault
and battery.'
In a justice's court a writ of attachment cannot issue ex-
cept in case of indebtedness upon a contract express or im-
plied, or upon judgment or decree of some court. The affida-
vit is similar to that required in courts of record, and the bond
is conditioned that if the plaintiff fails to recover judgment,
he will pay all costs that may be adjudged against him and all
damages which the defendant may sustain by reason of
the attachment, not exceeding the sum of one hundred dol-
lars.'
Mississippi. Attachments may issue for the collection of
all debts, the claims for damages growing out of the breach of
any contract, and claims founded on any of the penal laws of
this State, when the creditor, his agent or attorney, makes and
files an affidavit setting forth the amount and character of the
debt, and charging one or more of the following grounds; 1.
That the defendant is a foreign corporation, or a non-resident
of this State. 2. That he has removed or is about to remove
himself or his property out of this State. 3. That he so ab-
¹ Ch. 66, §§ 130, 131; Laws 1867, p. 110; G. S. 1878, ch. 66, §§
145-148.
Ch. 65, §§ 91, 93; G. S. 1878, ch. 65, §§ 98, 100.
532
THE LAW OF ATTACHMENT.
Attachments.
sconds or conceals himself that he cannot be served with a
summons. 4. That he contracted the debt or incurred the obli-
gation in conducting the business of a ship, steamboat, or
other water-craft in some of the navigable waters of this State.
5. That he has property or rights in action which he conceals
and unjustly refuses to apply to the payment of his debts. 6.
That he has assigned or disposed of, or is about to assign or
dispose of, his property or rights in action, or some part there-
of, with intent to defraud his creditors. 7. That he has con-
verted, or is about to convert, his property into money or
evidences of debt, with intent to place it beyond the reach of
his creditors. 8. That he fraudulently contracted the debt or
incurred the obligation for which suit has been or is about to
be brought. May issue for a debt not due, if sued out on
either the sixth, seventh, or eighth ground, or if the cred-
itor affirms that he has just cause to suspect, and verily be-
lieves, that the debtor will remove himself, or his effects, out
of the State, before said debt will become payable, with intent
to hinder, delay, or defraud his creditors; or that he hath
removed, with like intent, leaving property in this State.
Before the writ can issue the creditor must execute a bond
with one or more sureties, in double the amount of the debt
claimed, conditioned to pay all such damages as the defendant
shall sustain by the wrongful suing out of the attachment, and
costs. Sureties need not be land-owners.
Non-residents may attach; and all attachments are triable
the first term. The process may be levied on lands and tene-
ments, money, goods, chattels, and debts of the defendant
wherever found; and a garnishment clause may be added to
the writ.
Defendant may contest the grounds of the attachment, as
a preliminary and separate issue. If successful, he may re-
cover his actual damages for the wrongful issuance of the
writ; which damages may be, in that suit or any other,
applied as payment pro tanto of his debt to plaintiff. The
plaintiff cannot defeat this right of recovering damages by dis-
missing the suit.
STATUTORY PROVISIONS.
533
Attachments.
A successful contest of the grounds of attachment does
not abate the suit; it only dissolves the attachment. Plaintiff
may proceed to judgment, crediting his debt with the amount
of damages recovered by defendant.
Missouri. Attachments may issue against the property of
debtors in the following cases :-Where the defendant is not
a resident of this State; where the defendant is a corporation,
whose chief office or place of business is out of this State;
where the defendant conceals himself, so that the ordinary
process of law cannot be served upon him; where the defend-
ant has absconded, or absented himself from his usual place of
abode, in this State, so that the ordinary process of law cannot
be served upon him; where the defendant is about to remove
his property or effects out of this State, with the intent to
defraud, hinder or delay his creditors; where the defendant
is about to remove out of this State with the intent to change
his domicile; where the defendant has fraudulently conveyed
or assigned his property or effects, so as to delay or
hinder his creditors; where the defendant has fraud-
ulently concealed, removed, or disposed of his property
or effects, so as to hinder or delay his creditors; where
the defendant is about fraudulently to convey or assign his
property or effects, so as to hinder or delay his creditors;
where the defendant is about fraudulently to conceal, remove,
or dispose of his property or effects, so as to hinder or delay
his creditors; where the cause of action accrued out of this
State, and the defendant has absconded, or secretly removed
his property or effects into this State; where the damages for
which the action is brought are for injuries arising from the
commission of some felony, or misdemeanor, or for the se-
duction of any female; where the debtor has failed to pay the
price or value of any article or thing delivered, which, by
contract, he was bound to pay upon the delivery; where the debt
sued for was fraudulently contracted on the part of the debtor.
In cases arising on the first four grounds, the debt must be
due. To procure an attachment, the bond of the creditor and
534
THE LAW OF ATTACHMENT.
|
Attachments.
resident securities, in double the amount of debt sued for,
is required. The creditor who issues the first attachment has
the preference. Debtor may put in issue ground of attach-
ment, and creditor is then held to prove the same; and if
creditor fails to sustain attachment, he must pay damages,
although he may recover judgment for his claim.
Montana Territory. An attachment may be sued out at the
time of issuing the summons, or at any time afterwards, before
judgment, upon the creditor, or some one in his behalf, mak-
ing affidavit, showing that the debtor is owing the creditor
upon a contract, express or implied, for the payment of
money, or property, then due, which is not secured by a mort-
gage, lien, or pledge, upon real or personal property, stating
the amount of the indebtedness (as near as may be). Before
the attachment can issue, an undertaking on the part of the
creditor must be executed, and filed, in a sum not less than
double the amount claimed.'
Nebraska. The plaintiff in an action for the recovery of
money may, by attachment, secure a lien on any property of a
defendant subject to execution, when he is a foreign corpora-
tion or non-resident; when he has or is about to remove his
property from the jurisdiction of the court, assign, remove, or
dispose of or convert to money, or conceals his property to
defraud his creditors; when he absconds to defraud creditors,
or leaves county of residence to avoid service of summons, or
fraudulently contracted or incurred the subject of the action.
When the ground of attachment is that defendant is a foreign
corporation or non-resident, the claim must be debt or demand
arising on contract, judgment, or decree. A bond in double
the amount claimed is required, except when the said defend-
ant is a foreign corporation or non-resident. As to plaintiffs,
there is no distinction between residents and non-residents.
The distinction as to the necessity of bond on account of
¹ Code Civ. Proc. ch. 4, tit. vii., adop. Feb. 16, 1877.
Rev. Stat. p. 424, § 198.
STATUTORY PROVISIONS.
535
Attachments.
place of residence is made only as to defendants. The affida-
vit may be made by plaintiff, his agent or attorney, showing
nature of plaintiff's claim, that it is just, the amount which
affiant believes the plaintiff ought to recover, and the existence
of some one of the grounds for attachment above mentioned.'
Statute does not say what kind of property surety shall have.
There must be one or more sureties.'
A creditor may bring an action on a claim before it is due,
and have an attachment against the property of the debtor;
when the debtor has sold, conveyed, or otherwise disposed of
his property, or is about to make such sale, conveyance, or
disposition of his property, with the fraudulent intent to cheat
or defrand his creditors, or to hinder or delay them in the
collection of their debts, or when he is about to remove his
property or a material part thereof with the intent or to the
effect of cheating or defrauding his creditors or of hindering
and delaying them in the collection of their debts.'
Nevada. The plaintiff at the time of issuing the summons
or at any time afterwards, may have the property of the de-
fendant attached as security for the satisfaction of any judg
ment that may be recovered, unless the defendant gives secur-
ity to pay such judgment. First. In an action upon a con-
tract for the direct payment of money, made or by the terms
thereof payable in this State, which is not secured by mortgage,
lien, or pledge upon real or personal property situated or being
in this State, or, if so secured, when such security has been
rendered nugatory by the act of the defendant. Second. In
an action upon a contract against a defendant not residing in
this State.
The clerk of the court shall issue the writ of attachment
upon receiving an affidavit to be made by the plaintiff, or any
one in his behalf, setting forth the necessary facts as above,
and also showing that the sum for which the attachment is
¹ C. S. p. 555, § 199.
¹ C. S. p. 556, § 200; p. 555, § 198, 4 Neb. 62; 3 Ib. 73; 2 Ib. 14.
'Gen. Stat. p. 564, § 237; 9 Neb. 297; 6 Ib. 527; C: S. p. 561, § 237.
536
THE LAW OF ATTACHMENT.
Attachments.
asked is an actual bona fide existing debt due and owing from
the defendant to the plaintiff, and that the attachment is not
sought, and the action is not prosecuted, to hinder, delay, or
defraud any creditor of defendant. Before issuing the writ,
the clerk shall require a written undertaking in a sum not less
than two hundred dollars, nor exceeding the amount claimed by
the plaintiff, in gold coin, with sufficient sureties to the effect
that if the defendant recover judgment the plaintiff will pay
all costs that may be awarded to the defendant, and all dam-
ages he may sustain by reason of the attachment.
New Hampshire. Most actions are commenced by attach-
ment; and all property which may be taken upon execution
may be attached and holden as security for the judgment the
plaintiff may recover.'
Real estate is attached by the officer leaving an attested
copy of the writ and of his return thereon with the town clerk
of the town where the property is situated."
All movable property is taken possession of by the officer
on making the attachment. The attachment of lumber, brick,
and other bulky articles may be preserved by leaving an attes-
ted copy of the writ and officer's return thereon with the town
clerk, as in the attachment of real estate, without retaining act-·
ual possession thereof. In all cases where an attachment is
made, a summons must be served upon the defendant, which
must briefly give him the same information that is given in
the original writ.'
The property of the defendant in the hands of a third per-
son, as also debts due the defendant, may be attached by trus-
tee process, service being made upon the defendant and trus-
tee, as in a writ of summons. No trustee is chargeable for
pensions, or bounty money, or the services or earnings of the
.wife or minor children of the defendant, or the defendant's
own earnings after service of wit. If the claim against the de-
¹ G. L. 517.
• G. L. 518.
• G. L. 519.
STATUTORY PROVISIONS
537
Attachments.
fendant is not for necessaries furnished him or his family,
twenty dollars of his earnings before service of writ on trustee
is also exempt.¹
Property attached is holden for thirty days from the ren-
dition of judgment, and the levy of the execution must be com-
menced within that time.
No valid attachment can be made to secure claims not due
at the commencement of the action.
New Jersey. Writ of attachment may issue upon filing
with the clerk of the court out of which writ is about to issue,
an affidavit by the creditor, or in his absence his agent, that
his debtor absconds from his creditors, and is not to his know-
ledge or belief a resident of the State at the time. Or that the
debtor is not to his knowledge or belief a resident of this State
at this time, and owes to the plaintiff a certain amount, speci-
fying the amount as nearly as he can. The claim of the plain-
tiff must, it is thought, be an accrued debt. It must be a debt,
not unliquidated damages.
A non-resident of this State can obtain an attachment
against the property and credits of another non-resident, ex-
cept against wages or salary due from an employer resident
within this State to a non-resident employee, when wages or
salary are not subject to attachment in the State where the
latter resides.
A corporation not created or recognized by the laws of this
State is liable to proceedings in attachment, if service of sum-
mons cannot be made as stated below.
Other creditors than the original plaintiff, whether their
debts are due or not, may be admitted under the attachment,
on application to the court, or to the auditors appointed to ad-
just the demands, before they have made their report. Under
the writ of attachment the property and estate of the defen
dant may be seized and sold, and his debtors garnished. Real
estate inay not be sold until twelve months after the seizure
under the writ.*
¹ G. L. 574.
'Rev. p. 16.
538
THE LAW OF ATTACHMENT.
Attachments.
A general assignment for the benefit of creditors will not af-
fect a levy made under an attachment prior to such assignment.
An attachment may be dissolved by the debtor entering ap-
pearance and giving freehold security in double the amount of
the claims.
New Mexico. Creditors whose demands amount to fifty dol-
lars may sue in the district court by attachment in the follow-
ing cases, namely, 1st. When the debtor is not a resident of or
resides in this territory. 2d. When the debtor has concealed
himself, or absconded or absented himself from his usual place
of abode in this Territory, so that the ordinary process of law
cannot be passed upon him. 3d. When the debtor is about to
remove his property or effects out of the Territory, or has
fraudulently concealed or disposed of the same, so as to hinder,
delay, or defraud his creditors. 4th. When the debtor is about
to fraudulently convey or assign, conceal or dispose of his prop-
erty or effects, so as to hinder, delay, or defraud his creditors.
5th. When the debt was contracted out of this Territory and
the debtor has absconded or secretly removed his property or
effects into the Territory with intent to hinder, delay, or de-
fraud his creditors. 6th. When the defendant is a corporation
whose principal office or place of business is out of the Terri-
tory, unless such corporation has a designated agent in the
Territory upon whom service of process may be made in suits
against it. 7th. When the defendant has fraudulently contrac-
ted the debt, incurred the obligation, or obtained credit from
the plaintiff by false pretences, respecting the matter for which
the suit is brought. Attachment may issue upon a claim or
demand not matured.
There is no distinction between resident and non-resident
plaintiffs. A non-resident plaintiff may sue out a writ of at-
tachment against a non-resident, and attach property on the
ground of the non-residence of defendant.
The writ may be sued out by filing with the clerk of the
court a bond payable to the Territory in double the sum of the
amount claimed, signed by two or more sureties, and condi-
STATUTORY PROVISIONS.
539
Attachments.
tioned that the plaintiff shall prosecute his said action without
delay and with effect, refund all sums of money that may be
adjudged to be refunded to the defendant, and pay all damages
that may accrue to any defendant or garnishee by reason of
said attachment or any process of judgment thereon, which said
bond must be approved by the clerk; and also by filing an afli-
davit in the following form, to wit:-
TERRITORY OF NEW MEXICO,
COUNTY OF
}
88.
This day personally appeared before me, the undersigned,
clerk of the court, A. B. (or C. D., agent for A. B.), and
being duly sworn says that E. F. is justly indebted to the said
A. B., after allowing all just offsets, and that the said E. F. is
(setting forth one of the causes of attachment). A. B.
(or C. D., agent for A. B.)
Sworn to and subscribed before me this day
A. D. 18
G. H., Clerk.
•
The affidavit may be made and bond executed by an agent.
The sureties must be residents of the Territory. The petition
or declaration may be filed at any time on or before the first
day of the return term of the writ, or at any time thereafter,
with leave of the court. The proceedings thereunder are pre-
scribed by the Compiled Laws.
The attachment may be dissolved by successfully contesting
the truth of the ground of attachment specified in the affidavit
and then the suit proceeds as an ordinary action. In this re-
spect the proceedings by capias and attachment differ from
each other, as in capias a successful contest of the truth of the
affidavit abates the cause. The writ of attachment is in the
usual form, and runs against all the property, money, goods,
chattels, effects, and credits of the defendant.
New York. A warrant of attachment against the real and
personal property of the defendant may be granted at any
time after the commencement of an action to recover money
only for a breach of contract, or for a wrongful conversion of
personal property, or for any other injury to personal property
540
THE LAW OF ATTACHMENT.
Attachments
in consequence of a wrongful act. The plaintiff must show by
affidavit, to the satisfaction of the judge, that the defendant
is either a foreign corporation or not a resident in the State;
or, being a resident, that he has departed therefrom with in
tent to defraud his creditors, or avoid the service of a sum-
mons, or keeps himself concealed therein with like intent; or,
if he is a natural person or a domestic corporation, that he or
it has removed, or is about to remove, property from the
State, with intent to defraud his or its creditors; or has as-
signed, disposed of, or secreted property with the like intent,
or is about to do so.' The affidavit must also set forth that
the plaintiff is entitled to recover a specified sum from the
defendant, "over and above all counter claims known to the
plaintiff." In forwarding claims to attorneys for attachment, it
should be expressly stated whether any counter claim is known
to the creditor. The plaintiff must also file a written under-
taking, with sufficient sureties, to the effect, that if the de-
fendant recovers judgment, or if the warrant is vacated, the
plaintiff will pay all costs which may be awarded to the de-
fendant, and all damages which he may sustain by reason of
the attachment, not exceeding the sum specified in the under-
taking, which must be at least $250. No attachment will
issue until the claim is due.
North Carolina. At the time of the issuing of the summons,
or at any time afterwards, an attachment may issue in the
following cases, to wit: In an action arising on contract
for the recovery of money only, or in an action for the
wrongful conversion of personal property, against a corpora
tion created by or under the laws of any other State, govern-
ment, or country, or against a defendant who is not a resident of
this State, or against a defendant who has absconded or con-
cealed himself, or whenever any person or corporation is
about to remove any of his or its property from this State, or
has assigned, disposed of, or secreted, or is about to assign,
1 Code Civ. Proc. 88 685, 687.
*Code Civ. Proc. § 640.
STATUTORY PROVISIONS.
541
*
Attachments.
dispose of, or secrete any of his or its property, with intent to
defraud creditors.
The warrant may issue whenever it shall appear by affida
vit that a cause of action exists against such defendant, speci-
fying the amount of the claim and the grounds thereof, and
that the defendant is either a foreign corporation or not a
resident of this State, or has departed therefrom with intent
to defraud his creditors, or to avoid the service of summons,
or keeps himself concealed therein with like intent, or that
such corporation or person has removed, or is about to remove,
any of his or its property from this State with intent to de-
fraud his or its creditors, or has assigned, disposed of, or se-
creted, or is about to assign, dispose of, or secrete any of his
or its property with like intent, whether such defendant be a
resident of this State or not. The affidavit upon which the
warrant is granted must be filed with the clerk of the court to
which, or magistrate before whom, the warrant is returnable,
within ten days from the issuing of the warrant.
A written undertaking "with sufficient surety," to secure
all defendant's costs and damages, in a sum not less than two
hundred and fifty dollars, must be given by plaintiff.' The
statute does not require that sureties to the above undertak-
ing be freeholders, nor does it specify the number required.
The affidavit can be made by plaintiff's agent."
Attachments may be taken out in cases within the juris-
diction of justices of the peace, as well as in those within the
jurisdiction of the superior courts. Non-resident plaintiffs
can attach in all cases that residents can.'
Ohio. The creditor in a civil action for the recovery of
money may, at or after the commencement thereof, by filing
the necessary affidavit, have an attachment against the prop-
erty of the debtor, and upon the grounds herein stated: 1st,
when the debtor, or one of several debtors, is a foreign cor-
¹ Code Civ. Proc. §§ 201, 202.
' 81 N. C. 183.
* Battle's Reach. 17, § 196, et seq.
542
THE LAW OF ATTACHMENT.
Attachments.
poration or a non-resident of this State; 2d, has absconded
with the intent to defraud his creditors; 3d, has left the
county of his residence to avoid the service of a summons;
4th, so conceals himself that a summons cannot be served
upon him; 5th, is about to remove his property or a part
thereof out of the jurisdiction of the court, with the intent to
defraud his creditors; 6th, is about to convert his property or
a part thereof into money, for the purpose of placing it be-
yond the reach of his creditors; 7th, has property or rights in
action which he conceals; 8th, has assigned, removed, or dis-
posed of, or is about to dispose of his property or a part
thereof, with the intent to defraud his creditors; 9th, has
fraudulently or criminally contracted the debt or incurred the
obligation for which suit is about to be or has been brought.
But an attachment shall not be granted, on the ground that
the defendant is a foreign corporation, or a non-resident of
this State, for any claim other than a debt or demand arising
upon contract, judgment, or decree, or for causing death by
negligent or wrongful act.' The plaintiff, his agent, or at-
torney, must file with the clerk of the court in which action is
brought, an affidavit showing: 1st, the nature of plaintiff's
claim; 2d, that it is just; 3d, the amount which the affiant
believes the plaintiff ought to recover; and, 4th, the existence
of any one of the grounds for an attachment before enumerated."
When the ground of the attachment is that the defendant is a
foreign corporation or a non-resident of this State no under-
taking is required; in all other cases, bond must be given in
a sum equal to double the amount of the plaintiff's claim. A
creditor may bring an action on his claim before it is due,
and have an attachment against the property of the debtor:
1st, when debtor has sold, conveyed, or otherwise disposed
of his property, with the fraudulent intent to cheat or
defraud his creditors, or to hinder or delay them in the col-
lection of their debts, or, 2d, is about to make such sale, con-
veyance, or disposition of his property with such fraudulent
' Rev. Stat. § 5521.
Rev. Stat. § 5522.
STATUTORY PROVISIONS.
543
Attachments.
intent; or, 3d, is about to remove his property, or a material
part thereof, with the intent, or to the effect, of cheating his
creditors, or of hindering or delaying them in the collection of
their debts. Bonds must be given in double the amount of
his claim, but judgment cannot be rendered on his claim be-
fore it becomes due.'
Oregon. The plaintiff, at the time of issuing the summons,
or at any time afterwards, may have the property of the de-
fendant attached, as security for the satisfaction of any judg-
ment he may recover, unless the defendant give security to
pay such judgment, in the following cases: 1. In an action
upon contract, express or implied, for the direct payment of
money, which contract is made or is payable in this State,
and is not secured by mortgage, lien, or pledge upon real
estate or personal property, or, if so secured, that such secur-
ity has been rendered nugatory by act of the defendant. 2.
In an action upon a contract, express or implied, against a de-
fendant not residing in this State.
The clerk of the court must issue the writ of attachment
upon receiving an affidavit, by or on behalf of plaintiff, show-
ing: 1st. That the defendant is indebted to the plaintiff (spe-
cifying the amount of such indebtedness over and above all
legal set-offs or counter-claims) upon a contract, express or
implied, for the direct payment of money, and that such con-
tract was måde or is payable in this State, and that the pay-
ment of the same has not been secured by any mortgage, lien,
or pledge, upon real or personal property; or, 2d. That the
defendant is indebted to the plaintiff (specifying the amount
of such indebtedness, as near as may be over and above all
legal set-offs or counter-claims), and that the defendant is a
non-resident of the State; and, 3d. That the sum for which
the attachment is asked is an actual bona fide existing debt,
due and owing from the defendant to the plaintiff, and that
the attachment is not sought, and the action prosecuted, to
hinder, delay, or defraud any creditors of the defendant.
1 Rev. Stat. §§ 5564, 5565.
544
THE LAW OF ATTACHMENT.
Attachments.
Upon filing the affidavit with the clerk, the plaintiff shall
be entitled to have the writ issue as soon thereafter as he shall
file with the clerk his undertaking, with one or more sureties,
in a sum not less than one hundred dollars, and equal to the
amount for which the plaintiff demands judgment, and to the
effect that the plaintiff will pay all costs that may be adjudged
to the defendant, and all damages which he may sustain by
reason of the attachment, if the same be wrongful or without
sufficient cause, not exceeding the sum specified in the under-
taking. With the undertaking the plaintiff shall also file the
affidavits of the sureties, from which affidavits it must appear
that such sureties are qualified, and that taken together they
are worth double the amount of the sum specified in the
undertaking, over all debts and liabilities and property exempt
from execution. No person not qualified to become bail
upon an arrest is qualified to become surety in an undertaking
for an attachment.
The rights or shares which such defendant may have in
the stock of any association or corporation, together with the
interest or profits thereon, and all property in the estate
of such defendant, not exempt from execution, is liable to be
attached.
Pennsylvania. The real and personal property of a non-
resident of the State, who is not in the county at the time the
writ issues, may be held by a foreign attachment." No affida-
vit is necessary in the commencement of the action, except
where the cause of action arises ex delicto. The plaintiff,
however, may be compelled to file an affidavit of claim upon
the application of the defendant. The sheriff before serv-
ing the writ invaribly demands security, with one or more
sureties sufficient to indemnify him against risk. In Phila-
delphia, the security is approved by the court.' The defend-
ant may appear, and by giving adequate security, have the
attachment dissolved. The property of non-residents may be
attached for debts less than one hundred dollars on process
¹ Act of April 10, 1873.
STATUTORY PROVISIONS.
Attachments,
Bat
issued by a justice of the peace. The plaintiff is required to
give bond before the attachment can issue, and the defendant
may free his property from the attachment by entering secur-
ity.' In either case the security must be for doùble the
amount of the plaintiff's claim. A foreign attachment may
be issued at the suit of a non-resident plaintiff. No provision
is made for foreign attachment where the plaintiff's claim is
not yet matured.
545
The property of any person, resident or not, may be at-
tached under the act of 1869 upon proof by the affidavit of
the plaintiff, or any person for him, that the defendant is
justly indebted to him in a sum exceeding one hundred dol-
lars, setting forth the nature and amount of such indebtedness,
and that the defendant is about to remove his property out of
the jurisdiction of the court, with intent to defraud his credi-
tors; or that the defendant has property, rights in action,
interest in any stock, money, or evidences of debt, which he
fraudulently conceals; or that the defendant has assigned,
disposed of, or removed, or is about to assign, dispose of, or
remove, any such property, rights, stock, etc., with intent to
defraud his creditors; or that he fraudulenty contracted the
debt or incurred the obligation for which such claim is made.
Before the attachment issues the plaintiff must file a bond,
with sufficient surety, in double the amount claimed, condi-
tioned for the payment of all costs and damages which the
defendant may sustain by reason of the attachment, if the
plaintiff fails to recover judgment against him. The bond
inust be approved by the prothonotary or one of the judges
of the court of common pleas. The defendant may have the
property so attached by giving bond in double the amount
claimed, with sufficient surety, to be approved by the court
from which the attachinent issues, conditioned for the pay-
ment of the debt and costs, or for the return of the property
in as good condition as when attached, if judgment be ob-
tained against him. IIe may also apply at any time to the
1 Act of May 8, 1874.
V
85
546
THE LAW OF ATTACHMENT.
Attachments.
court, to hear the evidence and determine the truth of the
allegations in the affidavit on which the attachment issued, and
the court may dissolve or continue the attachment.
An attachment in the nature of an execution may issue
after judgment has been recovered to attach any money or
property of the defendant in the hands of third persons,
any stock in corporations or other chose in action owned by
him, or any debts due to him. Interrogatories are filed which
the garnishee must answer, and if there is a dispute of fact, an
issue between the plaintiff and the garnishec may be tried by
a jury.
Rhode Island. In any civil action the original writ may
be served by attachment of real or personal estate, or of both,
whether the defendants therein named be within or without
this State at the time of such service. Real estate, however,
cannot be attached upon any justice's writ. But no attach-
ment can be made in any tort action.
No attachment of property can be made upon mesne pro-
cess, unless an affidavit of the plaintiff, or his agent or
attorney, shall be indorsed on the writ, setting forth that the
plaintiff has just claim against the defendant, which is due,
and upon which he expects to recover in said action a sum
sufficient to give jurisdiction thereof to the court to which
said writ is made returnable, and also either that the defend-
ant is an incorporated company established out of the State,
or that he resides out of the State, or that he has left the State
and is not expected to return in season to be served with pro-
cess before the next term of the court; or that the defendant,
or one of the defendants, has committed frand in contracting
the debt in suit, or in the concealment of his property, or in
the disposition thereof; or that since contracting the debt the
defendant has been the owner of property, or in receipt of
income which he has refused or neglected to apply in pay-
ment thereof, though requested by the plaintiff so to do.'
Attachments cannot issue upon a debt not matured. Before
1 Gen. Stat. ch. 195.
STATUTORY PROVISIONS.
547
Attachments.
making attachments, bond with two or more sureties for the
protection of the officer serving the process must be given in
double the value of the property attached.
All executions run against the goods and chattels and real
estate of the defendant.'
South Carolina. At the time of the issuing of the summons,
or at any time afterwards an attachment may issue in the fol-
lowing cases, to wit: In an action arising for the recovery of
money, or for the recovery of property, whether real or per-
sonal, and damages for the wrongful conversion and detention
of personal property, or in actions for the recovery of damages
for injuries done either to person or property,' against a cor-
poration created by or under the laws of any other State, gov-
ernment, or country, or against a defendant who is not a resi-
dent of this State, or against a defendant who has absconded or
concealed himself, or whenever any person or corporation is
about to remove any of his or its property from this State, or
has assigned, disposed of, or secreted, or is about to assign,
dispose of, or secrete, any of his or its property, with intent to
defraud creditors. The proceedings in cases of attachment are
prescribed by the Code. Before the attachment can issue, the
plaintiff must be required to put in an undertaking of at least
one hundred and fifty dollars in the court of common pleas, or
twenty-five dollars in courts of trial justice, with sufficient
surety, to pay all costs which may be awarded to defendant,
and all damages he may sustain by reason of the attachment.
Sureties need not be freeholders, but can be made to justify.
The Code does not require an affidavit of the plaintiff; it only
requires an affidavit. It would scem that any one could make
it. The affidavit must show a cause of action, the amount of
claim, and the proceeds thereof, and that defendant is either a
-foreign corporation or a non-resident, or has departed from the
State, or conceals himself with intent to defraud his creditors,
or to avoid service of summons, or has removed, or is about to
remove, or has assigned, disposed of, or secreted, or is about to
1 Gen. Stut, ch. 211.
A. A. 1879.
•
548
THE LAW OF ATTACHMENT.
$
Attachments.
assign, dispose of, or secrete his property with intent to defraud
his creditors. The facts which sustain the belief expressed in
the affidavit must be stated clearly so that the officer granting
the attachment can say whether or not they support the charge.
Whether a non-resident of the State can obtain an attachment
against another non-resident, has never been decided in this
State. The terms of the act make no exception. The juris-
diction is based on the absence or on the acts of the defen-
dant. Yet the question has been doubted. Attachment will
not lie for a debt not due. An attachment will not lose its lien
if the debtor make a general assignment, or an assignment un-
der our insolvent laws after it be levied.
Tennessee. The proceeding of attachment original and an-
cillary, as practiced in the courts of law and equity, is a rem.
edy of great vigor and efficacy for the enforcement of debts or
contracts.
When cause exists, the property of the debtor, of every de-
scription, may be seized by attachment at the beginning of the
suit, or at any time in its progress, by ancillary attachment and
held to answer the final judgment or decree.
But the title to real estate attached in counties having a
population of forty thousand will not be charged with any lien
thereby, except from the date of the filing of an abstract of
the levy of the attachment in the register's office of the county
where the land lies.
Property of the debtor of every kind, legal and equitable,
choses in action, stocks, etc., may be attached by bill in chan-
cery, and held to abide the result of the suit.
Property wherein the debtor has the legal title, and which
is corporeal or tangible, may be seized by attachment in the
courts of law, and held to abide the result of the suit.
Demands on which attachments may be prosecuted are:
Any person having any debt or demand due at the commence-
ment of an action, or a plaintiff after action for any cause has
been brought, may sue out an attachment.' But cause for such
1 ¹ Code, § 8455.
STATUTORY PROVISIONS.
549
Attachments.
attachment must exist, and be laid as the foundation of the
proceeding.
Causes of Attachment are: 1. Where the debtor resides out
of the State. 2. Where he is about to remove or has removed
his property out of the State. 3. Where he has removed or is
removing himself out of the county privately. 4. Where he
conceals himself so that the ordinary process of law cannot be
served on him. 5. Where he absconds or is absconding, or con-
cealing himself or property. 6. Where he has fraudulently dis-
posed of or is about fraudulently to dispose of his property.
7. Where any person liable for any debt or demand, residing
out of the State, dies, leaving property in the State.' 8. And
against a defendant residing in the county as to whom the sum-
mons has been returned, "not to be found in my county.'
When any cause or ground exists other than the non-residence
of the debtor, the attachment may be had though the debt or
demand be not due;' and may be had by an accommodation in-
dorser or surety of the debtor on paper due or not due, as well
as by a creditor."
12
Preliminary to the issuance of the writ the existence of the
cause of the attachment must be shown by the oath of the cred-
itor or his attorney or agent; and he must give bond, with one
or more solvent sureties, in double the amount of the debt, or
he must take the oath prescribed for poor persons. The sure-
ties need not own real estate; but the clerk or other officer,
taking the bond, must be satisfied that the sureties have ample
property, unincumbered, out of which the amount of the pen-
alty of the bond could be made by writ of fi. fa. The defen-
dant may abate the writ and discharge the attachment by pro-
per pleading, and proof traversing the existence of the cause,
or the ownership by the defendant of the property attached.
A non-resident creditor may sue out an attachment against the
estate of his non-resident debtor, and even for the cause that
¹ Code, § 3455.
• Code, § 3456,
* Code, § 3456.
4
♦ Code, § 3457.
*
550
THE LAW OF ATTACHMENT.
Attachments.
his debtor is a non-resident; provided that where they are resi-
dents of the same State the creditor must swear that the prop-
erty of the debtor has been fraudulently removed to this State
to evade the process of law in the State of their domicile or
residence.
Texas. The judges and clerks of the district and county
courts, and justices of the peace, may issue writs of original
attachment, returnable to their respective courts, upon the
plaintiff, his agent or attorney, making an affidavit in writing
stating: 1. That the defendant is justly indebted to the
plaintiff and the amount of the demand; and, 2. That the
defendant is not a resident of the State, or is a foreign cor-
poration, or is acting as such; or, 3. That he is about to re-
move permanently out of the State, and has refused to pay or
secure the debt due the plaintiff; or, 4. That he secretes hin-
self, so that the ordinary process of law cannot be served on
him; or, 5. That he has secreted his property for the pur-
pose of defrauding his creditors; or, 6. That he is about to
secrete his property for the purpose of defrauding his credi-
tors; or, 7. That he is about to remove his property out of
the State, without leaving sufficient remaining for the pay-
ment of his debts; or, 8. That he is about to remove his
property, or a part thereof, out of the county where the suit
is brought, with intent to defraud his creditors; or, 9. That
he has disposed of his property, in whole or in part, with
intent to defraud his creditors; or, 10. That he is about to
dispose of his property with intent to defraud his creditors;
or, 11. That he is about to convert his property, or a part
thereof, into inoney, for the purpose of placing it beyond the
reach of his creditors; or, 12. That the debt is due for prop-
erty obtained under false pretences.
pretences. The affidavit shall
further state: 1. That the attachment is not sned out for
the purpose of injuring or harassing the defendant; and,
2. That the plaintiff will probably lose his debt unless such
attachment is issued.
The plaintiff must also execute bond with two or more
STATUTORY PROVISIONS.
551
Attachments.
sureties, approved by the officer issuing the writ, payable to
the defendant in at least double the amount sworn to be due;
conditioned that plaintiff will prosecute his suit to effect and
pay all such damages and costs as may be adjudged against
him for wrongfully suing out such attachment. There is no
requirement that bondsmen be owners of real estate. No such
attachment shall issue until the suit has been duly instituted,
but it may be issued in a proper case, either at the commence-
inent of the suit or at any time during its progress.
The writ of attachment above provided for may issue,
although the plaintiff's debt or demand be not due, and the
same proceedings shall be had thereon as in other cases, ex-
cept that no final judgment shall be rendered against the
defendant until such debt or demand shall become due.
The defendant may replevy property attached, on giving
bond with two sureties in double the amount of the
plaintiff's debt sned on, or double the value of the property
replevied, as estimated by the officer, conditioned for the
satisfaction of any judgment against him for the debt or pay-
ment of the value of the property replevied, with interest
from the date of bond.
Any person other than the defendant may claim any per-
sonal property levied on.
Utah Territory. At the time of issuing summons, or any
time thereafter, the plaintiff may have an attachment in an
action on a contract not secured by mortgage, lien, or pledge,
upon real or personal property situate in this Territory; or,
if so secured, where the security has been rendered nugatory
by the defendant; against a defendant non-resident of the
Territory; or one who has departed or is about to depart from
the Territory or county; or who stands in defiance of an
officer; or conceals himself so that process cannot be served on
him; or who is disposing of his property with intent to de-
fraud his creditors.
The clerk of the court must issue the writ of attachment
on receiving an affidavit made by the plaintiff or his at-
5.32
THE LAW OF ATTACHMENT.
Attachments.
torney, or some other person on behalf of the plaintiff, show-
ing that the defendant is indebted to the plaintiff upon a con-
tract, specifying the nature thereof, and the amount thereof
as near as may be, over and above all legal set-offs or counter-
claims, and that the same has not been secured by any
mortgage, lien, or pledge upon real or personal property situ-
ate or being in this Territory, or, if so secured, that the
security has been rendered nugatory by the act of the defend-
ant; and that the same is an actual, bona fide, existing de-
mand, due and owing from the defendant to the plaintiff;
and that the attachment is not sought and the action is not
prosecuted to hinder, delay, or defraud any creditor of the
defendant; and specifying one or more of the causes for
attachment set forth above.
On filing an affidavit of the facts authorizing the issuing
of the attachment, and an undertaking on the part of the
plaintiff in a sum not less than two hundred dollars (nor ex-
ceeding the amount claimed when over two hundred dollars),
the clerk issues the writ. The undertaking must have suffi-
cient sureties, two in number at the least, and be to the
effect that if the defendant recover judgment the plaintiff
will pay all costs that may be awarded to the defendant, and
all damages which he may sustain by reason of the attachment,
not exceeding the sum specified in the undertaking.
The sureties need not be the owners of real estate; but the
sureties are required to accompany the undertaking with an
affidavit that they are each worth the sum specified in the
undertaking, over and above all their just debts and liabilities,
exclusive of property exempt from execution.
Real and personal property, including debts due defendant
and other choses in action, may be attached. Property and
choses in action in the hands of third persons may be attached
or garnisheed.
After appearance, the defendant may release the attach-
ment, upon notice to the plaintiff, upon filing an undertaking,
with householders as sureties in double the amount claimed,
STATUTORY PROVISIONS.
553
Attachments.
or may release specific property by giving an undertaking in
double the value of the property sought to be released.
Justices of the peace may issue writs of attachment, in
cases within their jurisdiction, upon the same grounds.
Garnishment requires no special affidavit. But debts and
credits and other personal property not capable of manual
delivery may be garnished in attachment by the officer who
holds the writ of attachment, leaving with the person owing
such debts or having such personal property a copy of the
writ of attachment and a notice that the said debts and other
personal property are attached in pursuance of said writ.
The officer must serve such copy of the writ and notice on
any person, firm, or corporation, within in his bailiwick, when
requested in writing so to do by the plaintiff. A writ, of
attachment cannot be obtained on a debt not due.
Vermont. The ordinary mode of proceeding in civil cases
is by writ of summons in attachment for debt. There is no
statutory provision for dissolving attachments. Unless the
debt is paid or compromised the lien created by attachment
may be preserved as to personal property by placing execution
in the hands of the officer in thirty days, and as to real
estate by levy of execution in five months after judgment
obtained; and if, when judgment is obtained, such personal
property or real estate is encumbered by a prior attachment,
such lien is preserved as to such personal property thirty days,
and as to such real estate five calendar months after such encum-
brance has been removed. Personal property, not exempt,
may be attached and held as security to satisfy such judg
ment as the creditor may recover, by the officer's taking and
keeping the same in his possession. When certain articles of
personal property (for the enumeration of which see Laws of
Vermont, 1868, No. 43; and 1872, No. 47), are taken by vir-
tue of any writ of attachment or execution, the officer serving
such process may lodge a copy of the same with his return in
the town clerk's office in the town where such property is
taken, which is as effectual to hold such property against all
554
THE LAW OF ATTACHMENT.
Attachments.
subsequent sales, attachments or exccutions, as if such property
had been actually removed and taken into the possession of
such officer; provided, however, that when cattle, sheep,
horses and other live animals are attached by the leaving of a
copy of the writ in the Town Clerk's office, if the defendant
in such writ of attachment or execution does not within sixty
days from the date of such attachment replevy said cattle,
sheep, horses, and other animals so attached, or furnish a
satisfactory receipt for the same, the officer must remove
said cattle, sheep, horses and other animals forthwith from
the possession of the defendant, otherwise said attachment of
said cattle, sheep, horses, and other animals is void as to bona
fide purchasers or subsequent attaching creditors. Reversion-
ary interest of the debtor, in personal property leased for a
term of time, may be attached by the delivery of a copy of the
writ, with the return of the attachment thereon, to the lessee.
All buildings or structures which have been or may be erected
by the mortgagor or lessee of premises upon the land of the
mortgagee or lessor, under such circumstances that the mort-
gagor or lessee has or may have the right to remove the same
before or at the expiration of the lease, or where the condition
of such mortgage may become absolute, may be attached in
the method provided for the attachment of the property above
enumerated; provided, however, that in addition to the
copy lodged in the town clerk's office, a like true and attested
copy of the process, with a description of the property, and
the return of the officer thereon, must be served upon the
mortgagee or lessor in the same manner as is provided for
the attachment of personal property which is held by any
person as lessee and bailee, and upon sale on execution
the vendee at such sale shall succeed to all the rights of the
original lessee or mortgagor of the property. Debts due the
debtor exceeding in amount the sum of $10, unless due for
property sold and conveyed or delivered by the debtor, which
was at time of sale exempt from attachment and execution by
the laws of this State may be attached by trustee process.
Personal property attached, if perishable, or if it cannot be
STATUTORY PROVISIONS.
555
•
Attachments.
kept without disproportionate expense, may be appraised and
sold, and the proceeds held in place thereof. In attaching
real estate or any interest therein, a copy of the writ, and so
much of the officer's return as relates to the attachments of
the estate, must be deposited in the office of the clerk of
the town in which the estate is situated, and the attachment
takes effect from the delivery of the copy. Before the issuing
of any writ, security for costs must be given, by way of recog-
nizance, in such sum as the magistrate may direct, and no
other security to procure attachment is necessary, unless the
officer require a bond to indemnify him for attaching property,
the title to which is in dispute.
Virginia. The classes of persons who may be proceeded
against by attachment, besides tenants liable for rent, are:
1. Non-residents having estate within the State, or who are
sued with defendants residing in the State. 2. Defendants
removing, intending to remove, or who have removed their
effects out of the State, so that judgment or decree against
them would be unavailing.
Non-residents may be sued by attachment in an action at
law for debt, or damages for breach of contract, or in equity
upon any such claim, or in a suit for specific performance when
a certain sum is claimed.
The second class of defendants, removing or intending to
remove, etc., may be proceeded against by attachment in any
action at law to recover specific personal property, or money
upon any claim, or damages for any wrong, that is, including
torte.
Against defendant's removing effects, etc., any justice of
the peace may issue an attachment, whether the claim be due
or not. In all other cases the writ must be obtained from a
clerk of the court, if the claim excced twenty dollars exclusive
of interest. If of twenty dollars or under, exclusive of interest,
the attachment should be before a justice of the peace, and
not before a court. A justice of the peace issuing an attach-
¹ Code, 1873, ch. 148, § 29.
556
THE LAW OF ATTACHMENT.
Attachments.
ment, may, in certain cases, appoint a special constable to
execute it.'
A non-resident may sue out an attachment against another
non-resident when he has estate in the State.
An attachment may be obtained against masters of steam-
boats for materials furnished.'
Washington Territory. The plaintiff at the time of issuing
the summons, or at any time afterward, may have the property
of the defendant attached, as security for the payment of any
judgment he may recover. No exception is made against
non-resident plaintiffs.
The writ issues whenever the plaintiff or any one in his
behalf shall make and file an affidavit that a cause of action
exists against the defendant, and the grounds thereof, and that
the defendant is either a foreign corporation, or that he is not
a resident of the territory, or has departed therefrom, or keeps
himself concealed therein, with intent to delay or defraud his
creditors, or that he has removed or is about to remove his
property from the territory with a like intent, or that he has
assigned, secreted, or disposed of his property, or is about so
to do with fraudulent intent, or that he has been guilty of a
fraud in contracting the debt or incurring the obligation."
Upon filing the affidavit with the clerk the writ may issue
or as soon thereafter as the plaintiff executes and files a bond
with two sufficient sureties, in a sum equal to the amount for
which plaintiff claims judgment, conditioned that the plaintiff,
will pay all damages defendant may sustain by reason of the
attachment, if the same be wrongful and without sufficient
cause. The sureties shall justify as in proceedings in arrest.
The rights or shares which such defendant may have in
the stock of any association or corporation, together with all
the property of defendant, subject to execution in this ter
ritory, may be attached, and his debtors may be garnished.*
¹ Sess. Acts, 1878-1879, p. 252.
• Sess. Acts, 1876–1877, p. 37.
* Stat. 1877, §§ 174, 175.
• Stat. 1877, §§ 176, 178.
STATUTORY PROVISIONS.
557
Attachments.
West Virginia. An attachment may be issued where
defendant or one of the defendants is a foreign corporation or
a non-resident of the State, or for any of the causes for which
an arrest may be made on affidavit. Except where the order
issues because of the defendant being a foreign corporation or
non-resident, the affidavit must show in addition the material
facts relied on as a basis for the attachment. When it is
desired to have the sheriff take personal property into his
possession, bond with personal security shall be first given.
Wisconsin. In justices' courts, before attachment can
issue, creditor, or some person in his behalf, must make and
file with the justice an affidavit stating that debtor therein is
indebted to the creditor in a sum exceeding $5, specifying
same as near as may be, over alleged set-offs, and that same is
due on contract, express or implied, or on judgment or decree
of court; and further, that deponent knows or has good reason
to believe, either-1, that debtor is a foreign corporation, or if
a Wisconsin corporation, that the officers thereof are non-
residents, or cannot be found; 2, is not a resident of this State,
and has not resided therein for three months immediately pre-
ceding; 3, has absconded or is about to abscond from the
State; 4, has removed or is about to remove some of his pro-
perty out of this State, with intent to defraud his creditors;
5, resides in some other county, and more than one hundred
iniles from residence of justice; 6, contracted debt under
fraudulent representations; 7, so conceals himself that process
of summons cannot be served on him; 8, has fraudulently con-
veyed or disposed of, or is about to fraudulently convey or
dispose of, some of his property or effects, so as to hinder or
delay his creditors. ' In first five cases warrant returnable
in three days; in all other cases, six or more. Affidavit not
traversable. Attachment also lies in actions on tort against
non-residents. In circuit courts, before any attachment shall
be executed, the creditor, or some person in his behalf, shall
make and annex thereto an affidavit stating that the debtor
1
1 R. S. ch. 158, §§ 3701, 3730.
558
THE LAW OF ATTACIIMENT.
Attachments.
nained in such attachment is indebted to the creditor in a sum
exceeding $50, and specifying the amount of such indebted-
ness, as near as may be, over and above all legal set-offs, and
that the same is due upon contract, express or implied, or upon
judgment or decree, and containing a further statement that
the deponent knows, or has good reason to believe, either—
1, that debtor has absconded or is about to abscond from this
State, or is concealed therein, to the injury of his creditors, or
keeps himself concealed there with intent to avoid the service
of a summons; or 2, has assigned, conveyed, or disposed of, or
concealed, or is about to assign, convey, dispose of, or conceal
some of his property with intent to defrand his creditors; or
3, has removed or is about to remove some of his property out
of this State, with intent to defraud his creditors; or 4, frau-
dulently contracted the debt, or incurred the obligation,
respecting which the action is brought; or 5, is not a resident
of the State; or 6, that the defendant is a foreign corporation,
or, if created under the laws of this State, that all the proper
officers thereof on whom to serve a summons do not exist, are
non-residents of the State, or cannot be found; or an affidavit
showing that a cause of action, sounding in tort, exists
against defendant-damages exceeding $50-specifying amount
claimed, and a further statement, either: 1, that the defendant
is not a resident of this State, or that his residence is unknown
and cannot, with due diligence, be ascertained; or 2, that the
defendant is a foreign corporation. The allowance of the
writ by court or judge not necessary, but the clerk may issue
the same upon application, either at the time of the issuing of
the summons, or at any time before final judgment in the
action. Before the attachment can be executed, there must
be an undertaking that the plaintiff will pay all costs and
damages in case he fails in the action-undertaking to be in
sum not less than $250, and executed on part of plaintiff with
sufficient surety." The officer to judge of the sufficiency of
the surety in the first instance; if the defendant is not satisfied
1 R. S. ch. 124, §§ 2729, 2175.
STATUTORY PROVISIONS.
559
•
Attachments,
with the sufficiency of the surety, he may except, etc. An
attachment may issue on a demand not yet due in all cases
except those numbered 5 and 6, but bonds must be given in
three times the amount claimed. '
Wyoming Territory. The plaintiff in a civil action for the
recovery of money may at or after the commencement thereof
have an attachment against the property of the defendant, and
upon the following grounds: 1. When the defendant, or one
of the defendants, is a foreign corporation or a non-resident of
the territory. 2. IIas absconded with intent to defraud his
creditors. 3. Has left the county of his residence to avoid
the service of summons. 4. So conceals himself that a sum-
mons cannot be served on him. 5. Is about to remove his
property or a part thereof out of the jurisdiction of the court
with the intent to defraud his creditors. 6. Is about to con-
vert his property or a part thereof into money for the purpose
of placing it beyond the reach of his creditors. 7. Has pro-
perty or rights in action which he conceals. S. Has assigned,
emoved, or disposed of, or is about to dispose of his property
or a part thereof, with the intent to defraud his creditors.
". Fraudulently contracted the debt or incurred the obligation.
10. In all cases not exceeding two hundred and fifty dollars in
which the debt is not otherwise secured, and which has not
been paid when due and within ten days thereafter on demand.
To obtain the writ of attachment the affidavit of the plain-
tiff, his agent or attorney, must be filed, showing one or more
of the above grounds and the nature of the claim; that it is
just, and the amount which the affiant believes the plaintiff
ought to recover. The plaintiff before obtaining the writ
must also execute an undertaking to the defendant with one
or more sufficient sureties in an amount not excceding double
the plaintiff's claim, to the effect that the plaintiff will pay the
defendant all damages which he may sustain by reason of the
attachment if the order be wrongfully obtained.
After the writ is issued it is levied upon any property of
Laws 1850, ch. 223.
'560
THE LAW OF ATTACHMENT.
Attachments.
the defendant not exempt from attachment. Moneys and
credits in the hands of any person may also be garnished under
the writ.
Sureties on undertakings in attachment need not be owners
of real estate, but must satisfy clerk of conrt by affidavit or
otherwise that they are sufficient.
Attachment may issue upon claims not yet due, in the
event of affidavits showing existence of any of the grounds
from second to ninth inclusive.
算
​STATUTORY PROVISIONS.
561.
Exemptions.
CHAPTER XXIX.
EXEMPTIONS.
THE Statutes of the several States and Territories relating
to Exemptions are as follows:
Alabama. The personal property of any resident of this
State, to the value of one thousand dollars, to be selected by
such resident, shall be exempted from sale on execution or
other process of any court issued for the collection of any
debt contracted since the 13th day of July, 1868. Every
homestead, not exceeding eighty acres of land, the dwelling
and appurtenances thereon, to be selected by the owner, and not
in a city, town, or village, or in lieu thereof, at the option of
the owner, any lot in a city, town, or village, with the dwel-
ling and appurtenances thereon, owned and occupied by any
resident of the State, and not exceeding the value of two thou-
sand dollars, shall be exempted from sale on execution or any
other process from a court; for any debt contracted since the
13th day of July, 1868. The right of exemption herein before
secured may be waived by an instrument in writing, and when
such waiver relates to realty, the instrument must be signed
by both husband and wife, and attested by one witness.
Such exemption does not extend to any mortgage lawfully
obtained; but such mortgage or other alienation of such home-
stead, by the owner thereof, if a married man, shall not be
valid without the voluntary signature and assent of the wife to
the same. The homestead of a family, after the death of the
owner, is exempt from the payment of debts contracted since
the 13th of July, 1868, in all cases during the minority of the
86
562
THE LAW OF ATTACHMENT.
Exemptions.
children; or if the owner dies leaving a widow and no chil-
dren, the same shall be exempt for her benefit, and the rents
and profits thereof shall inure to her benefit.
This exemption does not extend to cases of laborers' liens
for work done and performed for the person claiming such ex-
emptions or on a mechanic's lien for work done on the prem-
ises.¹
C
Exemption by Statute. The personal property of any resi-
dent of this State, to the value of one thousand dollars to be
selected by him. The homestead of every resident, not ex-
ceeding one hundred and sixty acres of land, and appurte-
nances thereon, not exceeding two thousand dollars in value,
owned and occupied by such resident, to be selected by the
owner thereof, or, in lieu thereof, any lot in a city, town, or
village, with the dwelling and appurtenances thereon, said lot
not to exceed two thousand dollars in value. This exemption
does not prevent a laborer's lien for work done and per-
formed for the person claiming an exemption, nor a mechan-
ic's lien for work done on the premises. No mortgage or
other alienation of any homestead exempted by this act, by the
owner thereof, if a married man, shall be valid without the
voluntary signature and assent of the wife, acknowledged be-
fore a supreme or circuit court judge, chancellor, judge of pro-
bate, or justice of the peace. The wages, salaries, or compen-
sation of laborers and all employees for personal service, to
the amount of twenty-five dollars per month, are exempt.
The homestead of a family, not exceeding in value two thou-
sand dollars, if in any city, town, or village, and not exceeding
one hundred and sixty acres in quantity, and two thousand
dollars in value, when the same is not in any city, town, or
village, after the death of the owner thereof, and personal
property to the value of one thousand dollars, of any resident
of this State, after his death, is exempt from the payment of
debts, provided such decedent leaves surviving him a widow
or child. In addition to the exemptions heretofore allowed,
1 Constitution, 1875.
• Code of Ala., § 2820, et seq.
STATUTORY PROVISIONS.
563
Exemptions.
there are the further exemptions of the wearing apparel of
the deceased, the wearing apparel of the widow and children,
all yarn and cloth on hand intended for their use and con-
sumption, the family bibles and books, all family portraits and
miniatures, and such grain, stores, and groceries on hand as
may be necessary for the subsistence of the family for twelve
months, all of which is to be set apart by three disinterested
persons, to be selected, two of them by the widow, if there be
one, and one by the judge of probate, and if there be no
widow, then by three such persons to be appointed by the
judge of probate, and turned over to the family forever free
from administration and the debts of the deceased; and any
live stock necessary for the subsistence of the family may be
killed for their use at any time before the final settlement of
the estate.
In addition to the above there are exempt lots in cemeter-
ies or elsewhere used for burial places, pews in churches, all
necessary and proper wearing apparel for each member of the
family, all family portraits, and books used in the family.
Any resident of the State, may waive, by an instrument in
writing, his claim for the exemption of any property which is
now or may be exempted from sale on execution or other pro-
cess of any court, issued for the collection of any debt con-
tracted either since the 13th day of July, 1868, or after the 5th
day of December, 1875.' Any person entering into a written
contract or other obligation may in writing waive his exemp-
tions, either in whole or in part, specifying the part to which
the waiver applies. Such waiver, if it relates to personal prop-
erty, may be included in the contract or other obligation, and
the intention to make the waiver must be clearly expressed;
but if the waiver relates to realty, it must be made by a sepa-
rate written instrument, signed by both husband and wife, if
the resident has a wife, attested by one witness; and if the
waiver is by a married man of the homestead right, or any
part thereof, it must contain the voluntary signature and
¹ Const. Art. X., passim, p. 145; code of Ala., § 2846.
564
THE LAW OF ATTACHMENT.
Exemptions.
assent of the wife, whose separate acknowledgment must be
taken and certified as in the case of a conveyance of a home-
stead.'
Arizona. The homestead, consisting of a quantity of land,
together with the dwelling house and its appurtenances, water-
right pertaining thereto sufficient to irrigate the land,—all not
exceeding in value $5,000, is exempt from forced sale, but
"such exemption shall not extend to any mechanic's, laborer's
or vendor's lien, or to any mortgage lawfully obtained; but
no mortgage sale or alienation of any kind whatever of such
land by the owner thereof, if a married man, shall be valid
without the signature of the wife to the same, acknowledged
by her separately and apart from her husband; provided that
such signature and acknowledgment shall not be necessary to
the validity of any mortgage upon the land executed before it
became the homestead of the debtor, or executed to secure the
payment of the purchase-money."
And the following property is exempt from levy or sale
under execution, viz: 1st. All spinning-wheels, weaving-
looms, with the apparatus, and stoves put up and kept for use
in any dwelling-house. 2d. A seat, pew, or slip occupied by
such person or family in any house or place of public worship.
3d. All cemeteries, tombs, and rights of burial, while in use as
repositories of the dead. 4th. All arms and accoutrements
kept for use; all wearing apparel of every person or family.
5th. The library and school-books of every individual and
family not exceeding $150 in valne, and all family pictures.
6th. To each householder ten goats or sheep, with their fleeces,
and the yarn or cloth manufactured from the same; two cows,
five swine, and provisions and fuel for the comfortable sub-
sistence of such householder and family for six months. 7th.
To each householder all household goods, furniture and uten-
sils, not exceeding the value of $600. 8th. The tools, im-
plements, materials, stock, apparatus, team, vehicle, horses,
♦ Const. Art. X., § 7, p. 145; code of Ala., §§ 2847-2849.
STATUTORY PROVISIONS.
565
4
Exemptions.
harness, or other things to enable any person to carry on the
profession, trade, occupation, or business in which he is
wholly engaged, not exceeding in value $600; provided that
no property shall be exempt from execution upon a judgment
recovered for the purchase money of such identical property,
either by virtue of this or any other statute [as amended in
1881]. 9th. One sewing machine and one musical instrument.
10th. A sufficient quantity of hay, grain, feed, and roots for
properly keeping for three months the animals in the several
subdivisions of this section exempted from execution, and any
chattel mortgage, bill of sale or other lien created on any part
of the property above described, except such as is mentioned
in subdivision eight, shall be void, unless such mortgage, bill
of sale, or lien be signed by the wife of the party making such
mortgage or lien (if he have one).
Arkansas. The exemption law is contained in the present
constitution, and is as follows: "Section 1. The personal pro-
perty of any resident of this State, who is not married or the
head of a family, in specific articles to be selected by such
resident, not exceeding in value the sum of $200, in addition
to his or her wearing apparel, shall be exempt from seizure on
attachment, or sale on execution or other process from any
court, issued for the collection of any debt by contract: pro-
vided that no property shall be exempt from execution for
debts contracted for the purchase-money therefor while in the
hands of the vendee. Sec. 2. The personal property of any
resident of this State, who is married or the head of a family,
in specific articles to be selected by such resident, not exceed-
ing in value the sum of $500, in addition to his or her wearing
apparel, and that of his or her family, shall be exempt from
seizure on attachment, or sale on execution, or other process
from any court, on debt by contract. Sec. 3. The homestead
of any resident of this State, who is married or the head of a
family, shall not be subject to the lien of any judgment or
decree of any court, or to sale under execution, or other process
thereon, except such as may be rendered for the purchase-
566
THE LAW OF ATTACHMENT.
Exemptions.
money, or for specific liens, laborers' or mechanics' liens for
improving the same, or for taxes, or against executors, adminis-
trators, guardians, receivers, attorneys for moneys collected by
them, and other trustees of an express trust, for moneys due
from them in their fiduciary capacity. Sec. 4. The homestead
outside any city, town, or village, owned and occupied as a
residence, shall consist of not exceeding one hundred and sixty
acres of land, with the improvements thereon, to be selected
by the owner: provided the same shall not exceed in value the
sum of $2,500, and in no event shall the homestead be reduced
to less than eighty acres, without regard to value. Sec. 5. The
homestead in any city, town, or village, owned and occupied
as a residence, shall consist of not exceeding one acre of land,
with the improvements thereon, to be selected by the owner:
provided the same shall not exceed in value the sum of $2,500,
and in no event shall such homestead be reduced to less than
one quarter of an acre of land, without regard to value.
Sec. 6. If the owner of a homestead die, leaving a widow, but
no children, and said widow has no separate homestead in her
own right, the same shall be exempt, and the rents and profits
thereof shall vest in her during her natural life: provided that ·
if the owner leaves children, one or more, said child or children
shall share with said widow, and be entitled to half the rents
and profits till each of them arrives at twenty-one years of age
-each child's rights to cease at twenty-one years of age-and
the shares to go to the younger children; and then all to go
to the widow; and provided that said widow or children may
reside on the homestead, or not. And in case of the death of
the widow, all of said homestead shall be vested in the minor
children of the testator or intestate.
Sec. 9. The
exemptions contained in the constitution of 1868 shall apply to
all debts contracted since the adoption thereof, and prior to
the adoption of this constitution. Sec. 10. The homestead
provided for in this article shall inure to the benefit of the
minor children, under the exemptions herein provided, after
the decease of the parents.” '
¹ Const. 1874, Art. IX.
·
STATUTORY PROVISIONS.
567
Exemptions.
California. The following property is exempt from execu-
tion for any debt, except it be for the purchase price of such
property, or the debt be secured by mortgage, licn, or pledge
thereon; to wit: 1st. Chairs, tables, desks, and books, to the
value of $200. 2d. Necessary household table and kitchen
furniture of the debtor, including one sewing machine, stoves,
stove pipes and stove furniture, wearing apparel, beds, bedding,
bedsteads, hanging pictures, oil paintings and drawings drawn
or painted by any member of the family, family portraits and
their necessary frames, provisions actually provided for indi-
vidual or family use sufficient for three months, and three
cows and their sucking calves, four hogs with their sucking
pigs, and food for such cows and hogs for one month. 3d. The
farming utensils, etc., of the judgment debtor, also two oxen,
or two horses, or two mules and their harness, one cart or
wagon, and food for such animals for one month, also seed
grain or vegetables reserved or on hand for planting within six
months, not exceeding $200 in value; and seventy-five bee-
hives, and one horse and vehicle belonging to any person who
is maimed or crippled, the same being necessary to his business.
4th. Tools or implements of a mechanic or artisan, notary's
seal, office furniture and records, surgeon, physician, music
teacher, surveyor or dentist's instruments, books, etc., and pro-
fessional libraries and furniture of attorneys and judges, and
libraries of ministers, editors, and school and music teachers,
and all the indexes, abstracts, books, papers, maps, and office
furniture of searcher of records necessary to be used in his
profession. 5. A miner's cabin, not exceeding $500 in value,
also his sluices, pipes, tools, etc., necessary for his business, not
exceeding $500 in value, and two horses, mules, or oxen, and
their harness, and food for the same for one month, when neces-
sary to be used for any windlass, derrick, car, pump, or hoisting
gear; and the miner's derrick worked by him, and not exceed-
ing $1,000 in value. 6th. Two oxen, horses, or mules, and
their harness and food for one month, and one cart, wagon,
dray, truck, coupé, hack, or carriage for one or two horses, by
the use of which a cartman, drayman, truckman, huckster,
568
THE LAW OF ATTACHMENT.
Exemptions.
peddler, hackman, teamster, or other laborer habitually earns
his living, and one horse, vehicle, and harness used by physician,
surgeon, constable, or minister of the gospel in the legitimate
practice of his profession or business, with food for such
animals for one month. 7th. Poultry worth not more than
$25. 8th. Earnings within thirty days of levy, if the defend-
ant swears they are necessary to support his family residing in
the State, and supported in whole or in part by his labor; but
only one-half of such earnings are excmpt where the debt is for
necessaries of life. 9th. Shares in homestead associations, not
exceeding in value $1,000—if the debtor has not a homestead
selected; nautical instruments and wearing apparel of any
master, officer, or seaman of any vessel. 10th. Life insurance
policies, and all benefits accruing therefrom, provided the
annual premium shall not exceed $500. 11th. All fire-engines,
etc. 12th. All firearms, etc., required by law to be kept by
any person, and one gun selected by the debtor. 13th. All
court-houses, jails, public offices, buildings, cemeteries, etc.'
The homestead, consisting of a quantity of land and dwel-
ling-house thereon, not exceeding $5,000 in value, selected by
the husband and wife, or either, or other head of a family, is
also exempt. Homestead of a single person to extent of $1,000
is also exempt.
Colorado. The following property, when owned by any
person being the head of a family, and residing with the same,
shall be exempt from execution, or writ of attachment, or
distress for rent: Family pictures, school books and library, a
seat or pew in any house or place of public worship; the
sites of burial of the dead; all wearing apparel of the
debtor and his family; all beds,, bedsteads and bedding, kept
and used for the debtor and his family; all stoves and
appendages kept for the use of the debtor and his family;
all cooking utensils and all the household furniture not
herein enumerated, not exceeding $100 in value; the
visions for the debtor and his family necessary for six
months, either provided or growing, or both; and fuel neces-
the pro-
¹ C. C. P. § 690.
STATUTORY PROVISIONS.
569
Exemptions.
sary for six months, the tools and implements, or stock in
trade of any mechanic, miner, or other person, used and kept
for the purpose of carrying on his trade or business, not exceed-
ing $200 in value; the library and.implements of any pro
fessional man, not exceeding $300 in value; working animals
to the value of $200, one cow and calf, ten sheep, and the
necessary food for all animals herein mentioned, for six months,
provided or growing, or both; also one farm wagon, cart or
dray, one plow, one harrow and other farming implements,
including harness for team, not exceeding $50, except when
the execution or attachment is upon suit for the purchase-
money of said article or property. Persons not the heads of
families are entitled to tools, working animals, and stock in
trade not exceeding $300 in value. Every householder in the
State, being the head of a family, shall be entitled to a home-
stead not exceeding in value the sum of $2,000, when such
homestead has been entered of record as such, and is occupied
by the debtor. The homestead may consist of a house and lot
or lots, in any town or city, or of a farm of any number of
acres, so that the value does not exceed $2,000.
Connecticut. There is no homestead exemption. Necessary
apparel and bedding, household furniture necessary for sup
porting life, arms, military equipments, implements of the
debtor's trade, one cow, ten sheep (not exceeding $150) are
protected, and certain specified amounts of family stores, onę
stove, the horse, saddle and bridle, buggy and harness (not
exceeding in value $250) of any practicing physician or sur-
geon, one sewing machine in use, one pew in church in use,
and a library (not exceeding in valne $500), one boat used in
fishing, not exceeding $200 in value, are exempt from sale on
execution.
Dakota Territory. The following property is absolutely ex-
empt from attachment or mesne process, and from levy and
sale on execution, and from any other final process issued from
any court: All family pictures; a pew or other sitting in any
5'70
THE LAW OF ATTACHMENT.
Exemptions.
house of worship; a lot or lots in any burial ground; the fam-
ily bible, and all school-books used by the family, and all other
books used as a part of the family library not exceeding in
value one hundred dollars; all wearing apparel and clothing of
the debtor and his family; the provisions for the debtor and
his family necessary for one year's supply, either provided or
growing or both, and fuel necessary for one year; the home-
stead, as created, defined, and limited by law. In addition to
the above-mentioned property, the debtor may, by himself or
his agent, select from all other of his personal property, not ab-
solutely exempt, goods, chattels, merchandise, money, or other
personal property, not to exceed in the aggregate fifteen hundred
dollars in value, which is also exempt.
Instead of the fifteen hundred dollar exemption, the debt-
or may select and choose the following property, which shall
then be exempt, namely: All miscellaneous books and musı-
cal instruments for the use of the family, not exceeding five
hundred dollars in value; all household and kitchen furniture,
including beds, bedsteads, and bedding, used by the debtor and
his family, not exceeding five hundred dollars in value; and in
case the debtor shall own more than five hundred dollars' worth
of such property, he must select therefrom such articles to the
value of five hundred dollars, leaving the remainder subject to
legal process; three cows, ten swine, one yoke of cattle and
two horses or mules, or two yoke of cattle, or two span of
horses or mules, one hundred sheep and their lambs under six
months old, and all wool of the same, and all cloth or yarn
manufactured therefrom, the necessary food for the animals,
hereinbefore mentioned for one year, either provided or grow-
ing or both, as the debtor may choose; also, one wagon, one
sleigh, two plows, one harrow, and farming utensils, including
tackle for teams, not exceeding three hundred dollars in value;
the tools and implements of any mechanic, whether a minor or
of age, used and kept for the purpose of carrying on his trade
or business, and, in addition thereto, stock in trade not exceed-
ing two hundred dollars in value. The library and instruments
STATUTORY PROVISIONS.
571
Exemptions.
of any professional person, not exceeding six hundred dollars
in value.
No property is exempt, except that absolutely exempt from
execution for laborers or mechanic's wages, or physician's bills.'
Except those made absolute, the exemptions do not apply:
To a corporation for profit; to a non-resident; to a debtor who
with his family removing from the Territory, or who has
absconded, taking with him his family. A partnership firm
can claim but one exemption of fifteen hundred dollars in val-
ue, or the alternative property, when so applicable, instead
thereof, out of the partnership property, and not a several ex-
emption for each partner.'
The homestead of every family resident in this Territory,
whether owned by the husband or wife, so long as it remains
a homestead, is absolutely exempt, except for taxes, mechanics'
liens for work, labor, or materials, done or furnished exclusive-
ly for the improvement of the same; and debts created for the
purchase thereof. If within a town plat it must not exceed
one acre in extent, and if not within a town plat it must not
embrace in the aggregate more than one hundred and sixty
acres, with the house and buildings appurtenant thereon; and
is without limitation in value. Such exemption continues af-
ter the debtor's death, for the benefit of the surviving husband
or wife and children; and if both husband and wife be dead,
till the youngest child becomes of age.'
Delaware. There is exempt from attachment or other civil
process the following personal property: family bible, school
books, and family library, family pictures, seat of pew in church,
lot in burial ground, all wearing apparel of debtor and family,
and, in addition to above, tools, implements, and fixtures neces-
sary to carry on a trade or business, not exceeding seventy five
dollars in New Castle and Sussex counties and fifty dollars in
Kent county. There is exempted to the head of a family, in ad-
dition to above, other personal property not exceeding two hun-
'C. C. P. §§ 823-334.
Rev. Code, ch. 88.
572
THE LAW. OF ATTACHMENT.
Exemptions.
dred dollars in New Castle county, and not exceeding one hun-
dred and fifty dollars in Kent county, consisting of household
goods only; but there is no such additional exemption in Sus-
sex county.' In New Castle county all wages are exempt from
execution attachment. Widow in all cases shall have the ben-
efit of the same exemption out of husband's goods that the
husband would have had if living. Funeral expenses, reason-
able bills for medicine and medical attendance, nursing, and
necessaries of last sickness, are paid out of personalty of a de-
ceased person before there is any application to the execution.
District of Columbia. The laws in the District of Columbia
exempt wearing apparel belonging to all persons and to all
heads of families being Householders; beds, bedding, house-
hold furniture, stoves, cooking utensils, etc., not exceeding
three hundred dollars in value; provisions for three months'
support whether provided or growing; fuel for three months;
mechanics' tools and implements of debtor's trade or business
amounting to two hundred dollars in value, with two hundred
dollars' worth of stock for carrying on business of debtor or
his family, library and implements of professional man or art-
ist to value of three hundred dollars; one horse, one mule, or
yoke of oxen; one cart, wagon, or dray and harness for such
team; farming utensils, with food for such team for three
months, and if the debtor be a farmer, any other farming tools
of value of one hundred dollars; all family pictures and all
family library not exceeding in value four hundred dollars;
one cow, one swine, six sheep. But none of these exemptions
except wearing apparel, beds, bedding, and household furni-
ture and provisions for debtor and family, extends to attach-
ments or execution for debt due for wages of servants, common
laborers, or clerks. There is no redemption from sale under
execution.'
The earnings, not to exceed one hundred dollars each month
of all actual residents of the District of Columbia, and who
Del. Laws, 1879, vol. 16, p. 214.
• Rev. St., D., C. § 797,
STATUTORY PROVISIONS.
573
Exemptions.
are married persons, or who have to provide for the support
of a family in the District, for two months next preceding
the issuing of any writ or process from any court or justice of
the peace, or other officer of and in the District, against them,
shall be exempt from attachment, levy, seizure, or sale upon
such process; and the same shall not be seized, levied on, taken,
reached, or sold by attachment, execution, or any other pro-
cess, or proceedings of any court, judge, justice of the peace,
or other officer of and in the District: provided, that this act
and nothing herein contained shall apply to, or in any manner
affect, any existing debt, contract, note or judgment.'
Florida. "A homestead to the extent of one hundred and
sixty acres of land, or the half of one acre within the limits of
any incorporated city or town, owned by the head of a family
residing in this State, together with $1,000 worth of personal
property, and the improvements on the real estate, shall be ex-
empted from forced sale under any process of law, and the real
estate shall not be alienable without the joint consent of hus-
band and wife when that relation exists.
"But no property shall be exempt from sale for taxes, or
for the payment of obligations contracted for the purchase of
said premises, or for the erection of improvements thereon, or
for house, field, or other labor performed on the same.
"The exemption herein provided for in a city or town shall
not extend to more improvements or buildings than the resi-
dence and business house of the owner."
"When the homestead is not within the corporate limits
of any town or city, the person claiming said exemption shall
have the right to set apart that portion of land belonging to
him which includes his residence, or not, at his option.' Sev-
eral tracts may be set apart to make up the one hundred and
sixty acres, provided the whole body cannot be found contigu-
ous.
1 Act of Cong. June 19th, 1878.
• Const. Art. IX. § 1.
• Act approved Feb. 24, 1878.
574
THE LAW OF ATTACHMENT.
Exemptions.
By the second section of article IX. of the Constitution it is
declared, “that in addition to the exemption provided for in the
first section of this article, there shall be and remain exempt
from sale by any legal process of this State, to the head of a
family residing in this State, such property as he or she may
select, to the amount of $1,000; said exemption in this section
mentioned shall only prevent the sale of property in cases
where the debt was contracted, liability incurred, or judgment
obtained before the tenth day of May, 1865. Nothing herein
contained shall be so construed as to exempt any property
from sale for the payment of the purchase-money of the same,
or for the payment of taxes or labor."
The third section of the same article declares, "the exemp-
tions provided for in sections 1 and 2 this article shall accrue
to the heirs of the party having enjoyed or taken the benefit
of such exemptions, and the exemption provided for in section
1 of this article shall apply to all debts except as specified in
said section, no matter when or where the debt was contracted
or liability incurred."
The supreme court holds that the term "forced sale," as
used in the Constitution, is a sale against the will of the owner,
and not a sale to which he has expressly consented by giving a
mortgage of the property sought to be exempted.'
"An exemption of property from sale by process of law is
a personal privilege which may be waived by the owners of
the property conveying an interest by means of an absolute or
defeasible conveyance of property otherwise exempt from such
sale."
Money due for the personal labor or service of any person
who is the head of a family, residing in this State, is exempted
from attachment or garnishment."'
The circuit court of the United States has ruled that the
exemptions, provided for in the Constitution of the State, ex-
tended to executions issued out of the United States court, if
the debt was contracted subsequent to the Constitution.
¹ Patterson v. Taylor & Randell (same term, 1875).
Acts 1875, p. 68, ch. 2065.
STATUTORY PROVISIONS.
575
Exemptions.
"There
Georgia, The Constitution of 1877 provides:
shall be exempt from levy and sale, by virtue of any process
whatever, under the laws of this State, except as hereinafter
excepted, of the property of every head of a family, or guar-
dian, or trustee of a family of minor children, or every aged
or infirm person, or person having the care and support of de-
pendent female of any age who is not the head of a family
realty or personalty, or both, to the value in the aggregate of
$1,600. No court or ministerial officer in this state shall ever
have jurisdiction or authority to enforce any judgment, execu-
tion, or decree against the property set apart for such purpose,
including such improvements as may be made thereon from
time to time, except for taxes, for the purchase-money of the
same, for labor done thereon, for material furnished therefor
or for the removal of incumbrances thereon. The debtor shall
have the power to waive or renounce in writing his right to
this benefit of exemption except as to wearing apparel and
not exceeding $300 worth of household and kitchen furniture
and provisions, to be selected by himself and his wife, if any,
and he shall not, after it is set apart, alienate or incumber the
property so exempted, but it may be sold by the debtor and
his wife, if any, jointly, with the sanction of the judge of the
superior court of the county where the debtor resides or the
land is situated, the proceeds to be reinvested upon the same
The act of 1878 carries out these provisions.
uses.
The supreme court of the State has held that these home-
stead provisions are retroactive, and, so far as they affect debts
made prior to the passage of said act, violative of the clause of
the Constitution of the United States which denies to the states
the right to pass laws impairing the obligation of contracts.
That court has also held that a debt contracted for the purchase
money is good against the homestead, in the hands of a trans-
feree, and that a debt for money borrowed and expended, to
relieve the homestead from the lien of a judgment for the
purchase-money, is good against the homestead. If the debtor,
being the head of a family, does not avail himself of these ex-
emptions, he may claim those allowed by prior laws, to wit:
576
THE LAW OF ATTACHMENT.
Exemptions.
Fifty acres of land, and five additional acres for each child
under sixteen years of age,—inclnding the dwelling-house, if
not worth (with improvements) more than $200. This
land must not be in a city, town, or village, nor have on
it any factory, mill, or other machinery propelled by water or
steam, the value of which exceeds $200. If the debt-
or's land lies in a city, town or village, he is allowed an ex-
emption not exceeding $500 in value. One farm-house or
mule; one cow and calf; ten head of hogs and $50 worth of
provisions, and $5 worth additional for each child; beds, bed-
ding, and common bedsteads sufficient for the family; one
loom, one spinning-wheel, two pair of cards, and one hundred
pounds of lint cotton; common tools of trade of himself and
wife; ordinary cooking utensils and table crockery; wearing
apparel of himself and family; the library of a professional
man, in actual practice or business, not to exceed $300 in
valne. Also, fifty bushels corn, one thousand pounds fodder,
one one-horse wagon, one table, one set of chairs sufficient for
use of family; and household and kitchen furniture, all not to
exceed $150 in value. The two last-named exceptions are al-
lowed if the homestead, etc., is claimed under the Constitution,
but no others are in the list above enumerated. These latter
exemptions under prior laws are known as the "short home-
stead," and can only be claimed when the former homestead is
not. The debtor may also waive these in writing, except so
much as are excepted by the Constitution of 1877.
Every debtor, or if he refuses, his wife, seeking the benefit
of the preceding exemptions, commencing at the words "fifty
acres of land," shall make out a schedule of the property
sought to be exempted, and return the same to the ordinary
of the county, without making application or publishing the
same in a gazette, which schedule shall be recorded in the
office of the ordinary,-the county sureveyor to survey and
plat the land claimed to be exempted. Creditors may dispute
the propriety of the survey or the value of the improvements
upon application to the ordinary, and have three appraisers
appointed to view the survey and value the improvements. If
STATUTORY PROVISIONS.
577
Exemptions.
87
the debtor owns town property exceeding $500 in value not
capable of being so divided as to allow his family that
amount, so much of the proceeds of its sale, when sold under
execution, will, on notice, be held up by the court to be in-
vested in other lands of that value. Where these exemptions
have been made, those provided in the Constitution of the
State will not be allowed in addition. Either class of ex-
emptions is allowed, but not both.
By the act of 1876 one family sewing-machine is exempt
from levy and sale, whether the person owning the same
is the head of a family or not, and this exemption is good
against all debts except the purchase-money.'
Idaho Territory. The following property is exempt from
execution: 1st. Chairs, tables, desks, and books to the value
of $200, belonging to the judgment debtor. 2d. Necessary
household, table, and kitchen furniture belonging to the judg-
ment debtor, including one sewing-machine in actual use in a
family, or belonging to a woman; stoves, stove-pipes, and stove
furniture; wearing apparel; beds, bedding, and bedsteads;
hanging pictures, oil-paintings and drawings, drawn or painted
by any member of the family, and family portraits and their
necessary frames; provisions actually provided for individual or
family use, sufficient for three months; two cows with their
sucking calves, and two hogs with their sucking pigs. 3d. The
farming utensils or implements of husbandry of a farmer, not
exceeding in value the sum of $300; also two oxen, or two
horses, or two mules, and their harness; one cart or wagon;
and food for such oxen, horses, or mules for one month; also
all seed grain or vegetables actually provided, reserved, or on
hand for the purpose of planting or sowing at any time within
the ensuing six months, not exceeding in value the sum of $200.
4th. Tools or implements of a mechanic or artisan necessary to
carry on his trade, not exceeding in value the sum of $500,
Acts 1876, p. 85.
578
THE LAW OF ATTACHMENT.
Exemptions.
the notarial seal and records of a notary public; the instru-
ments and chests of a surgeon, physician, surveyor, and
dentist, necessary to the exercise of their profession, with their
scientific and professional libraries; the law professional
libraries, and office furniture of attorneys, counselors, and
judges, and the libraries of ministers of the gospel. 5th. The
cabin or dwellings of a miner, not exceeding in value the sum
of $500; also all his sluices, pipes, hose, windglass, derrick,
cars, pumps, and tools not exceeding in value $200. 6th. Two
oxen, two horses, or two mules, and their harness; and one
cart or wagon, one dray or truck, by the use of which a cart-
man, drayman, truckman, huckster, peddler, hackman, team-
ster, or other laborer habitually earns his living; and one
horse, with vehicle and harness, or other equipments, used by
a physician, surgeon, or minister of the gospel in making his
professional visits, with food for such oxen, horses, or mules
for one month. 7th. The earnings of the judgment debtor
for his personal services, rendered at any time within thirty
days next preceding the levy of execution or levy of attach-
ment, when it appears by the debtor's affidavit or otherwise
that such earnings are necessary for the use of his family,
residing in this territory, supported wholly or in part by his
labor. 8th. The shares held by a member of a homestead
association, duly incorporated, not exceeding in valuc $1,000, if
the person holding the share is not the owner of a homestead
under the laws of this territory. 9th. All moneys, benefits,
privileges, or immunities, accruing or in any manner growing
out of any life insurance on the life of the debtor to an amount
represented by an annual premium, not exceeding $250; but
no article, or species of property mentioned in this section is
exempt from execution issued upon a judgment recovered for
its price, or upon a mortgage thereof. 10th. A homestead not
exceeding in value the sum of $5,000, when the same is duly
selected and a declaration thereof made by husband or wife,
or both, while residing thereon, and duly acknowledged and
recorded in the county where the property is situated.
STATUTORY PROVISIONS.
579
Exemptions.
Illinois. Every householder, having a family, is entitled to
an exemption to the extent of $1,000 in the farm or lot of
land, and the buildings thereon, owned or possessed, by lease
or otherwise, and occupied as a residence. The exemption,
unless released by deed, extends to the husband or wife sur-
viving, and to the children until the youngest becomes twenty-
one, so long as they continue in the occupancy of the home-
stead. Homesteads are not exempt from liabilities incurred
for their purchase or improvement. The proceeds of any
sale by the owner are exempt to the extent of $1,000 for one
year. If the premises are supposed to exceed in value $1,000,
an appraisal is had, and if the property can be divided without
injury, so much, including the dwelling, as shall be worth
$1,000, is set off as exempt, and the residue may be soldLIBRARY
SAN
1
the premises cannot be divided, the debtor has the option
pay the excess over $1,000 on the execution, or to suffeNIVERSITY OF
and receive $1,000 of the proceeds, the excess over that
being applied on the execution. In case of the loss of an
insured building so exempt, the insurance money is exempt to
the same extent. The following articles of personal property
owned by the debtor are exempt, namely: necessary wearing
apparel, bibles, school books, and family pictures of every per-
son, and $100 worth of other property, to be selected by the
debtor; and, in addition, when the debtor is the head of a
family, and resides with the same, $300 worth of other pro-
perty, to be selected by the debtor, but which selection shall
not be allowed from money, salary, or wages due the debtor.
Should any of the exempted property be seized, double its
value may be recovered. No exemptions are allowed when
the debt is for thè wages of a laborer or servant. When the
bead of a family dies, deserts, or does not reside with the same,
the family is entitled to the exemptions. When exemptions
are claimed, the debtor is required to deliver to the officer
having the writ, a schedule under oath embracing all his per-
sonal property, including money and debts due him, and pro-
perty not included therein is not exempted; the property is
R. S. 514; Underwood, 594.

OF
580
THE LAW OF ATTACHMENT.
•
Exemptions.
then appraised by three householders, and the debtor selects
such as he desires at the appraised value; and the excess over
the exemptions, to which he is entitled, he delivers to the
officer.
Indiana. Any resident householder has an exemption from
levy and sale under execution or attachment of real or personal
property, or both, as he may select, to the value of $600, on
demands on contracts. The law further provides that no pro-
perty shall be sold by virtue of an execution for less than
two-thirds of its appraised cash value. The provisions of this
law as to valuation or appraisement and call can be waived in
contracts. To do this the note or contract should read,
"Payable without relief from valuation or appraisement
laws." But the right to exemption cannot be waived by con-
tract. There is no homestead exemption in the ordinary
sense of the term.
Iowa. The homestead to be exempt must embrace the
house used as a home by the owner thereof, and if he has two
or more houses thus used by him at different times and places,
he may select which he will retain as his homestead. If within
a town plat, it must not exceed one half acre in extent; and if
not in a town plat, it must not embrace in the aggregate more
than forty acres. But if, when thus limited in either case, its
value is less than $500, it may be enlarged till its value reaches
that amount. All wearing apparel kept for actual use, and
suitable to the condition of the party, and trunks and other
receptacles to contain the same; one musket or rifle, or a shot
gun; all private libraries, family bibles, portraits, pictures,
musical instruments, and paintings-not kept for sale; seat or
pew in church, and interest in public or private burial grounds
—not exceeding one acre; the proper tools, instruments, or
books of any farmer, mechanic, surveyor, clergyman, lawyer,
physician, teacher or professor; the horse, or the team-con-
¹ Underwood, 597.
'Acts 1879, pp. 127–129.
STATUTORY PROVISIONS.
581
Exemptions.
sisting of not more than two horses or mules-or two yoke of
cattle, and the wagon or other vehicle with the proper harness
or tackle, by use of which any physician, public officer, farmer,
teamster, or other laborer, habitually earns his living. If the
debtor is the head of a family, there is further exempt: one
cow, one calf, one horse (unless a horse has been exempted for
him under the preceding section), fifty sheep and the wool
therefrom, five hogs and all pigs under six months, the neces-
sary food for all animals exempt from execution for six months,
all flax raised by the defendant, and the manufactures there-
from, one bedstead and the necessary bedding for every two in
the family, all cloth manufactured by the defendant-not
exceeding one hundred yards in quantity-household and
kitchen furniture not exceeding $200 in value, all spinning
wheels and looms, one sewing machine, and other instruments
of domestic labor kept for actual use, and the necessary pro-
visions and fuel for the use of the family for six months. The
word family does not include strangers or boarders lodging with
the family. The earnings of such debtor for the personal ser-
vice or those of his family, at any time within ninety days
next preceding the levy, are also exempt from attachment and
execution.' None of the foregoing exemptions are for the
benefit of a single man not the head of a family, nor of non-
residents, nor of those who have started to leave this State; but
their property is liable to execution, with the exemption in the
two former cases of ordinary wearing apparel and trunks to
contain the same, and in the latter case of such wearing apparel
and such property as the defendant may select-not to exceed
$75-to be selected by the debtor and appraised; but any per-
son coming to this state with the intention of remaining, is a
resident.
Kansas. A homestead to the extent of one hundred and
sixty acres of farming land, or of one acre within the limits of
an incorporated town or city, occupied as a residence by the
family of the owner, together with all the improvements on
Const. tit. XVIII. ch. 2.
582
THE LAW OF ATTACHMENT.
Exemptions.
the same, shall be exempt from forced sale under any process
of law, and shall not be alienated except by joint consent of
husband and wife when that relation exists. No value is
affixed to the homestead. It may be worth a million dollars.
No personal property is exempt for the wages of a servant,
mechanic, laborer, or clerk. Every person residing in this
State, and being the head of a family, shall have exempt from
seizure upon attachment or execution or other process issued
from any court in this state: Family bible, school books, and
family library; family pictures and musical instruments used
by the family; a seat or pew in any church or place of public
worship, and a lot in any burial ground; all wearing appare.
of the family, all beds, bedsteads, and bedding used by the
debtor and his family, one cooking stove and appendages, and
all other cooking utensils, and all other stoves and appendages
necessary for the use of the debtor and his family, one sewing
machine, spinning wheel, and all other implements of industry,
and all other household furniture not herein enumerated, not
exceeding $500, two cows, ten hogs, one yoke of oxen, and
one horse or mule, or in lieu of one yoke of oxen and one
horse or mule, a span of horses or mules, and twenty sheep
and their wool; necessary food for the support of the stock
for one year, one wagon, two plows, drag, and other farming
utensils, not exceeding $300; grain, meat, vegetables, groceries,
&c., for the family for one year, the tools and implements of
any mechanic, miner, or other person, kept for the purpose of
carrying on his business, and in addition thereto stock in trade
not exceeding $400 in value, library, implements, and office
furniture of any professional man.
Kentucky. The following are exempt from execution, at-
tachment, distress, or fee bill against a bona fide housekeeper
with a family resident within the State: Two work beasts, or
one yoke of oxen, two cows and calves, five sheep, wear-
ing apparel, and the usual household and kitchen furniture of
about the value of $100; and also, on all debts or liabilities
¹ Const. Kansas, Art. 15, § 9.
STATUTORY PROVISIONS.
583
Exemptions.
created after the 1st day of June, 1866, so much land, includ-
ing the dwelling house and appurtenances owned by the debt-
or, as shall not exceed in value $1,000. Also, one sewing ma-
chine, one two-horse wagon, or ox-cart, one set of gear, wash-
ing apparatus not exceeding $50 in value, carpeting for one
room, all the school books, a prayer book, hymn book, one bu-
reau, one wardrobe, one washstand, one clock, six cups and
saucers, six plates, six knives and forks; and on all liabilities
created after May 1st 1870, the libraries of preachers, the pro-
fessional libraries of lawyers, physicians and surgeons, and
their instruments, to the amount of $500, and one horse with
cart or dray for laboring men. The wages, not to exceed $50
of all persons who work for wages-not to apply to debts con-
tracted for food, raiment or house-rent for family. Tools not
exceeding $100 in value of a mechanic who is a bona fide
housekeeper with a family.'
Louisiana. The sheriff or constable can not seize the linen
and clothing belonging to the debtor or his wife; nor his bed,
bedding, or bedstead, nor those of his family, nor sewing ma-
chine; nor his arms and military accoutrements; nor the tools
and instruments, and books necessary for the exercise of his or
her calling, trade or profession, by which he or she makes a
living; nor shall he in any case seize the rights of personal
servitude, of use and habitation, of usufruct to the estate of a
minor child, nor the income of dotal property; nor money due
for the salary of an officer; nor laborers' wages; nor recom-
pense for personal services, nor the cooking stove and utensils
of the said stove, nor the plates, dishes, knives and forks, and
spoons, nor the dining table and dining chairs, nor wash tubs,
nor smoothing irons and ironing furnaces, nor family portraits
belonging to the debtor, nor the musical instruments played
on or practiced on by any member of the family; nor one hun-
dred and sixty acres of land and the buildings and improve-
ments thereon, occupied as a residence and bona fide owned by
the debtor, having a family, or mother, or father, or person or
¹ Gen. Stat. ch. 38, Art. XIII §§ 6-9.
584
THE LAW OF ATTACHMENT.
Exemptions.
persons depending on him for support, nor one work horse,
one wagon or cart,. one yoke of oxen, two cows and calves,
twenty-five head of hogs, or one thonsand pounds of bacon or
equivalent in pork, and if a farmer, the necessary quantity of
corn and fodder for the current year, provided, that the prop-
erty above stated to be exempt from seizure, does not exceed
$2,000 in value. No debtor shall be entitled to this exemp-
tion, whose wife shall own in her own right and be in the act-
ual enjoyment of property worth more than $1,000. The fore-
going "homestead exemption" does not apply in cases of seiz-
ure for taxes, for purchase price, or for rents bearing privilege
on such property under existing laws. The widow or minor
children of a deceased person left in necessitous circumstances
and not possessing in her or their own right property to the
amount of $1,000, shall be entitled to receive from the succes-
sion of the deceased person a sum which, added to that already
possessed in her or their own right, shall make the sum of
$1,000. This claim has preference over all debts of the de-
ceased person, except for vendor's privilege and expenses in-
curred in selling the property. In addition to the foregoing
are also the corn, fodder, hay, provisions, and other supplies
necessary for carrying on the plantation to which they are at-
tached for the current year.
Maine. By complying with certain statutory provisions
(not often taken advantage of), there is exempted a lot
of land, dwelling house, &c., not exceeding $500 in value.
Necessary apparel; a bed, bedstead, and bedding for every two
members of a family; a cooking stove, all stoves used for
warming buildings, and other necessary furniture to the value
of $50; one sewing machine for use not exceeding $100 in
value; all tools necessary for the debtor's occupation; all bibles
and school books for use of the family, one copy of the statutes
of the State, and a library not exceeding $150 in value; one
cow and one heifer, two swine, ten sheep and the wool and
lambs from them, one pair of working cattle, or instead there-
of one pair of mules or two horses, not exceeding $300 in val-
STATUTORY PROVISIONS.
585
Exemptions.
ue: all produce of farms until harvested, corn and grain for
use of debtor and family, not exceeding thirty bushels; all po-
tatoes raised or purchased for use in family; one barrel of flour,
a sufficient quantity of hay to winter all exempted stock; all
flax raised for use on one-half acre of land; lumber to the
amount of $10, twelve cords of fire wood, five tons of anthra-
cite coal, fifty bushels of bituminous coal, and all charcoal for
use in the family; one pew in meeting house where debtor
worships; one horse sled or ox sled, $20 in value; one harness
worth $20, for each horse or mule; one cart or truck wagon,
one harrow, one plow, one yoke, two chains, and one mowing
machine; for fisherman, one boat not exceeding two tons bur-
then a lot in a cemetery.'
Maryland. The constitution of the State directs the legis-
lature to pass laws exempting from judicial sales, a reasonable
amount of property not exceeding $500. One hundred dol-
lars is the amount fixed and exempted in pursuance of this con-
stitutional requirement, and in addition thereto, "all wearing
apparel, books, and the tools of mechanics, except books or
tools kept for sale."
Massachusetts. All chattels, real or personal, and all other
goods which by the common law are liable to be taken on exe-
cution, may be taken and sold thereon; except the following
articles, which are exempt: 1st. The necessary wearing ap-
parel of the debtor and of his wife and children; one bedstead
bed, and the necessary bedding for every two persons of the
family; one iron stove nsed for warning the dwelling house,
and fuel not exceeding the value of $20, procured and designed
for the use of the family; one sewing machine of a value not
exceeding $100, in actual use by the debtor or his family. 2d.
Other household furniture necessary for him and his family,
not exceeding $300 in value. 3d. The bibles, school books,
and library used by him and his family, not exceeding $50 in
¹ Rev. Stat. ch. 81 §§ 59, 60 63; ch. 50, § 65; Laws 1874, ch. 155;
Laws 1879, ch. 99.
586
THE LAW OF ATTACHMENT.
Exemptions.
value. 4th. One cow, six sheep, one swine, and two tons of
hay. 5th. The tools, implements, and fixtures necessary for
carrying on his trade or business, not exceeding $100 in value.
6th. Materials and stock designed and procured by him, and
necessary for carrying on his trade or business and intended to
be used or wrought therein, not exceeding $100 in value;
shares in co-operative associations not exceeding in the aggre-
gate the par value of $20. 7th. Provisions necessary, and pro-
cured and intended for the use of the family, not exceeding
$50 in value. 8th. One pew occupied by him or his family
in a house of public worship, provided that nothing contained
in the law shall prevent the sale of any pew for the non-pay-
ment of any tax legally laid thereon. 9th. The boat, fishing
tackle, and nets of fishermen actually used by them in the
prosecution of their business, to the value of $100. 10th. The
uniform of an officer or soldier in the militia, and the arms and
accoutrements required by law to be kept by him. 11th. Rights
of burial and tombs while in use as repositories for the dead.
A homestead, not exceeding $800 in value, is also exempt
to every householder having a family, if the design to hold it
as such is duly recorded.
Michigan. The laws of this State exempt from sale on exc-
cution to every householder a homestead not exceeding forty
acres of land and the house thereon, if in the country, or a
house and lot in any city or village not exceeding in value
$1,500. If it exceeds that amount in value it may be sold,
and after paying the judgment debtor the above sum the bal-
ance may be taken by the creditor. A married householder
cannot sell or incumber such homestead without the consent
of his wife.
Of personal property, the laws exempt from sale on exc-
cution various articles, such as seats in church, cemeteries,
tombs, and rights of burial, all arms and accoutrements, and
all wearing apparel of every person and his family, the library
and school books of every individual and family, not exceeding
$150, and all family pictures. To each householder, ten sheep
STATUTORY PROVISIONS.
587
Exemptions.
and their fleeces, two cows, five swine, and provisions and fuel
sufficient to keep such householder and family six months. To
each householder, all household goods, furniture and utensils,
not exceeding $250 in value. The tools, implements, mater-
ial, stock, apparatus, team (either one yoke of oxen, a họrse, or
pair of horses, as the case may be), vehicle, horses, harness,
or other things to enable any person to carry on the profession,
trade, occupation, or business in which he is wholly or princi-
pally engaged, not exceeding in value $250, and also one sew-
ing machine; and a sufficient quantity of hay, grain, feed, etc.,
to keep the animals enumerated for six months. No lien can
be created by mortgage or otherwise on any of the above prop-
erty, except the $250 worth of tools, implements, etc., used
in carrying on profession, etc., without the consent of the
wife, if he have one, by signing such mortgage or lien.
None of the property above mentioned, except mechanical
tools and implements of husbandry, is exempt from execution
on a judgment rendered for the same property.
If a person entitled to the benefit of a homesteed shall die,
his widow or minor children shall have the same benefit dur-
ing the time they continue to occupy the same.
Minnesota. The exemptions allowed by statute are: fam-
ily bible, family pictures, school-books, or library, and mu-
sical instruments for use of family; seat or pew in any
house or place of public worship; a lot in a burial ground;
all wearing apparel of debtor and family; all beds, bedding,
and bedsteads kept and used by debtor and his family; all
stoves and appendages put up or kept for use of debtor and
family; all cooking utensils, and all the household furniture
not herein enumerated, not exceeding $500 in value; three
cows, ten swine, one yoke of oxen and a horse, or in lieu there-
of a span of horses or mules; twenty sheep, and the wool from
same; necessary food for stock for one year; provided or
growing, or both; one wagon, cart, or dray, one sleigh, two
plows, one drag, and other farming utensils, including tackle
for team, not exceeding $300 in value; one sewing machine,
588
THE LAW OF ATTACHMENT.
Exemptions.
and grain necessary for one year's seed, not exceeding fifty
bushels of wheat, fifty bushels of oats, thirty bushels barley,
fifteen bushels potatoes, and three bushels corn: the provisions
for debtor and family for one year's support, provided or grow-
ing, or both, and one year's fuel; tools or instrument of any
mechanic, minor, or other person, used and kept for the pur-
pose of carrying on his trade, and stock in trade not exceed-
ing $400; library and implements of any professional man.
Also the wages of any laboring man or woman or their mi-
nor children, not exceeding $20, due for services rendered
during the ninety days preceding the issue of process, and
moneys arising from insurance of exempt property.'
In addition to articles above enumerated, all the presses,
stones, type, cases, and other tools and implements used by
any copartnership, or by any printer, publisher or editor of
any newspaper, and in the printing or publication of the same,
not to exceed two thousand dollars in value, together with
stock in trade not exceeding $400 in value, are exempt from
attachment or sale.' Also a homestead not exceeding eighty
acres of land with dwelling house thereon, to be selected by
the owner, not included in the laid out or platted portion of
any incorporated town, city, or village; or instead thereof, at
the owner's option, a quantity of land not exceeding one lot, if
within the laid out or platted portion of any incorporated town
city, or village, having over five thousand inhabitants, or one
half acre if within the laid out or platted portion of any such
town, city, or village, having less than five thousand inhabi-
tants, and the dwelling house thereon and its appurtenances,
owned and occupied by any resident of this State, is not sub-
ject to attachment, levy, or sale upon execution. Such home-
stead is exempt while occupied by the widow or minor chil-
dren of any person deceased, who was while living entitled to
the benefit of the homestead act. If a married man absconds
¹ Ch. 66, § 2791, Laws, 1868, p. 112; 1870, p. 131;1871, p. 122; 1872,
p. 137; 1871, p. 189; 1878, p. 79; G. S. 1878, ch. 66, § 810.
* Laws, 1876, p. 61; G. 8. 1878, ch. 66, § 810.
* Laws, 1875, p. 92; G. S. 1878, ch. 68, § 1.
STATUTORY PROVISIONS.
589
Exemptions
from the State, or deserts his wife or minor children, such
wife and children may continue to occupy such homestead, and
the same shall be exempt from levy and sale upon attachment,
execution, or other final process issued against such husband
and wife or either of them.'
Mississippi. No property is exempt from execution when
the purchase-money thereof, forms, in whole or in part, the
debt on which the judgment is founded; nor is any property
exempt from sale for non-payment of taxes or assessments, or
for materials furnished therefor, or from a debt for labor
done thereon, or where the judgment is for labor performed, or
upon a forfeited recognizance or bail bond, or where the pro-
cess is for rent.
Subject to the foregoing rules, the exempt property is as
follows: A homestead to every citizen of the State, male or fe-
male, being a householder and having a family, not to exceed
$2,000 in value, nor, if a farm in the county, eighty acres in
extent: this exemption is forfeitable if the debtor cease to re-
side on the place, unless his removal be temporary, by reason
of some casualty or necessity, and with the purpose of speedily
reoccupying it as soon as the cause of absence can be removed.
If the premises is worth more than $2,000, it may be divided,
if practicable; if not, sold, and $2,000 of the proceeds paid to
the debtor, the remainder to the creditor.
Also is exempt the following property of each head of a
family or housekeeper: 1. Two horses or mules, or one yoke
of oxen. 2. Two cows and calves. 3. Five head of stock
hogs. 4. Five sheep. 5. One hundred and fifty bushels of
corn. 6. Three hundred bundles of fodder. 7. Ten bushels
of wheat or rice. 8. Two hundred pounds of meat. 9. One
cart or wagon, not to exceed in value $100. 10. One sewing-
machine. 11. Household and kitchen furniture not to exceed
$100 in value. 12. Crops while growing. For such persons
as live in cities, towns, and villages, there is exempt personal
property to be selected by the debtor, not to exceed $250 in
¹ Laws, 1873, p. 201.
590
THE LAW OF ATTACHMENT.
Exemptions.
value. This seems to be an exemption in lieu of the forego-
ing, not in addition to it.
One hundred dollars of a laborer's or mechanic's wages are
exempt; and the following also, without reference to the
status of the debtor as to family: 1. The tools of a mechanic
necessary for carrying on his trade. 2. Agricultural imple-
ments of a farmer, necessary for two male laborers. 3. The
implements of a laborer necessary in his employment. 4. The
books of a student required for the completion of his educa-
tion. 5. Wearing apparel. 6. The libraries of licensed at-
torneys, practicing physicians, and ministers, also the instru-
ments of surgeons and dentists, not to exceed $250. 7. The
arms and accoutrements of each enrolled militiaman. 8. All
globes, books, and maps, used by the teachers of schools, acade-
mies, and colleges. The amount of any life insurance policy
not exceeding $10,000 from debts of deceased.
The title to exempt property vests in the widow and chil-
dren or husband and children, as tenants in common, by oper-
ation of law, on the death of the debtor. The executors and
administrators are required to designate it and "set it aside"
in their appraised inventory; but they never have the title to
it. If there be no widow, husband, or children surviving, the
property is liable to creditors. The debtor may sell his exempt
property and convey good title; also he may remove it from
the State.
Missouri. The following personal property is exempt from
execution or attachment when owned by a person not the head
of a family: 1. Wearing apparel. 2. Necessary tools and im-
plements of trade of any mechanic while carrying on his trade;
and when owned by a person who is the head of a family
the following: 1. Ten head of choice hogs. 2. Ten head of
choice sheep and the products thereof in wool, yarn, or cloth.
3. Two cows and calves. 4. Two plows, one axe, one hoc,
and one set of plow gears, and all necessary farm implements
for the use of one man. 5. Working animals of the value of
$150. 6. Spinning weeels and cards. 7. One loom and appa-
STATUTORY PROVISIONS.
591
Exemptions.
ratus necessary for manufacturing cloth in a private family.
8. All the spun yarn, thread, and cloths manufactured for fam-
ily use. 9. Any quantity of hemp, flax, and wool, not exceed-
ing twenty-five pounds each. 10. All wearing apparel of the
family, 11. Four beds with the usual bedding, and such
other household and kitchen furniture, not exceeding the value
of $100, as may be necessary for the family, agreeably to an
inventory thereof to be returned on oath with the execution by
the officer levying the same. 12. All arms and military equip-
ments required by law to be kept. 13. All such provisions as
may be on hand for family use, not exceeding in value $100.
14. The bibles and other books used in the family, lettered
grave-stones, and one pew in a house of worship. 15. The
necessary tools and implements of trade of any mechanic
while carrying on his trade, and all lawyers, physicians and
ministers of the gospel may select such books as shall be
necessary to their profession in the place of other property
above mentioned, and doctors of medicine in lieu of property
exempt may select their medicines.
The right is also given to the head of a family to select an
exempt in lieu of the property mentioned in the above first
tive subdivisions, other property, real or personal or mixed,
not exceeding in value $300.
All court-houses, jails, clerk's offices and other public
buildings and the ground whereon they stand when owned by
the county or a municipal corporation therein are also exempt
from execution; also all burial grounds.
No property is exempt from seizure and sale for taxes.
Nor if defendant is a non-resident or is about to abscond or
leave this state; but if he be a married man, and he has
absconded or absented himself from his place of abode, his wife
may claim the exemption. Nor is any personal property in
the hands of the purchaser thereof exempt against an execution
upon a judgment for the purchase-money. Nor is there any
exemption against a claim for wages of a house servant or com-
mon laborer to the amount of $90, provided suit is brought
within six months.
592
THE LAW OF ATTACHMENT.
Exemptions.
Every housekeeper or head of a family is entitled to have
exempt from execution and attachment the homestead occupied
by him, not exceeding in value $3,000 in cities of over forty
thonsand inhabitants, and not exceeding in quantity eighteen
square rods of ground. In cities having less than forty thou-
sand, and not less than ten thousand inhabitants, the home-
stead cannot exceed in value $1,500, nor thirty square rods of
ground; in cities having less than ten thousand inhabitants,
five acres, and not exceeding in value $1,500; and one hundred
and sixty acres of land in the country, not exceeding in value
$1,500. A homestead may be conveyed or incumbered as
other property, and for that purpose no special form of con-
veyance is required. If no such conveyance or incumbrance
has been made, the wife of the owner of the homestead may
file her claim to the tract of land occupied by her and her
husband, or by her alone if the husband have abandoned her.
Such claim must describe the property, and state that the
claimant is the wife of the person in whose name the property
appears of record, and must be acknowledged as deeds are, and
recorded in the county recorder's office. After such filing no
conveyance of or incumbrance on the homestead can be made
without the consent of the wife.
Upon the death of a person owning a homestead, leaving
minor children or widow surviving, such homestead vests as a
homestead in the widow and minor children until the death of
the widow, and until the youngest child is of age. The fee
simple of the property, subject to the homestead so continued
therein, will pass by descent or devise, and may be sold for the
decedent's debts as in other cases. If the decedent during his
life-time have legally charged his homestead with the payment
of any debt, such charge will continue and may be enforced
after his death.
Montana Territory. The exemptions are as follows: All
clothing of the debtor and family, and chairs, tables, desks, and
books, to the value of $100; also necessary household, table,
and kitchen furniture, which includes every article in use for
STATUTORY PROVISIONS.
593
Exemptions.
the comfort of the debtor or his family, and provisions and
fuel actually provided for individual or family use, sufficient
for two months. One sewing-machine, not exceeding the
value of $100, in actual use by the debtor or his family. Also
one horse, two cows with their calves, two swine, and fifty
domestic fowl. In addition to the above, there is exempt to a
farmer his farming utensils not exceeding $600 in value, two
oxen, or one horse or mule, and their harness, two cows, one
cart or wagon, aud food for such stock for three months; $200
worth of seeds, grain, or vegetables actually provided for the
purpose of sowing or planting. The proper tools, instruments,
or books of any mechanic, physician, dentist, lawyer, or clergy-
man. To a miner, his dwelling, not exceeding in value $500,
and all his tools and machinery necessary for carrying on his
avocation, not to exceed in value $500, and one horse, mulc,
or two oxen, and their harness, with their food for three
months, in case such stock is used necessarily in connection
with any specics of hoisting gear upon the mine. One horse,
mule, or two oxen, vehicle and harness, by which the debtor
habitually earns his living, and one horse with vehicle and
harness of physician or clergyman, used in making professional
visits, with food for such stock for three months. All arms,
uniforms, etc., required by law to be kept by any person. All
property generally held by the county or town for the benefit
of the county or the public, except as against a vendor's lien
or a mortgage. The wages of the debtor earned at any time
within thirty days next preceding the levy, provided they are
necessary for the use of his family residing in the territory,
supported wholly or in part by his labor. None but bona fide
residents can claim the benefits of this law.
88
A homestead not to exceed in value $2,500; if agricultural
land, it is not to exceed one hundred and sixty aeres.' If
within the limits of a town plat, city, or village, not to excced
one-fourth of an acre. The debtor has his option of the two,
and may select either, with all improvements thereon, which
¹ Act, 1879.
1
594
THE LAW OF ATTACHMENT.
Exemptions.
are included in the valuation. Such exemption does not affect
the lien of any mechanic or laborer, or extend to any mortgage
lawfully obtained.'
Nebraska. A homestead consisting of any quantity of land,
not exceeding one hundred and sixty acres, and the dwelling-
house thereon and its appurtenances, to be selected by the
owner thereof, and not included in any incorporated city or
village; or, instead thereof, at the option of the owner, a
quantity of contiguous land, not exceeding one-half an acre
with buildings thereon and appurtenances, all not over $2,000
in value, being within an incorporated town, city or village;
or, in lieu of the above, a lot or parcel of contiguous land, not
exceeding twenty acres, being within the limits of an incor-
porated town, city or village, the said parcel or lot of land not
being laid off into streets, blocks and lots, owned and occupied
by any resident of the State, being the head of a family, shall
not be subject to attachment, levy or sale, upon execution or
other process issuing out of any court in this State, so long as
the same shall be occupied by the debtor as a homestead, pro-
vided, however, that such farm lands, lots, etc., do not exceed
in value $2,000. All heads of families who have neither lands,
town lots, nor houses subject to exemption as a honestead,
under the laws of this State, shall have exempt from forced
sale on execution the sum of $500 in personal property. No
property hereinafter mentioned shall be liable to attachment,
execution or sale, or any final process issued from any court of
this State, against any person being a resident of this State and
the head of a family: The family bible; family pictures,
school books and library for use of the family; all necessary
wearing apparel of the debtor and his family; all beds, bed-
steads and bedding necessary for the use of such family; all
stoves and appendages put up or kept for the use of debtor's
family, not to exceed four; all cooking utensils and all other
household furniture not herein enumerated, to be selected by
Code Civ. Proc. 1877, §§ 811, 812.
STATUTORY PROVISIONS
595
Exemptions.
the debtor, not exceeding in value $100; one cow, three hogs,
and all pigs under six months old; and if the debtor be at the
time actually engaged in the business of agriculture, in addition
to the above, one yoke of oxen, or a pair of horses, in lieu
thereof, ten sheep, and the wool therefrom, either in the raw
material or manufactured into yarn or cloth; the necessary
food for the stock mentioned in this section for the period of
three months; one wagon, cart or dray, two plows and one
drag; the necessary gearing for the team herein exempted, and
other farming implements not exceeding $50 in value; the
provisions for the debtor and his family necessary for six
months' support, either provided or growing, or both, and fuel
necessary for six months; the tools and instruments of any
mechanic, miner or other person, used and kept for the pur
pose of carrying on his trade or business; the library and
implements of any professional man.
any professional man. Unmarried child residing
on homestead, is allowed it exempt if parents both dead. The
widow or widower, together or either one without the other,
and with or without a child living with them, or if all children
are dead, are entitled to homestead, provided the person
claiming homestead has some relative living with him or her,
dependent upon him or her for support.
Nevada. The following property of the judgment debtor
is exempt from execution: Chairs, tables, desks, and books to
the value of $100. Necessary household furniture, wearing
apparel, beds, bedding, provisions, and firewood sufficient for
one month. Farming utensils; also two oxen or two horses,
or two mules and their harness; two cows, and one cart or
wagon; and food for such oxen, horses, cows or mules, for one
month; also all seed grain or vegetables actually provided,
reserved, or on hand for the purpose of planting or sowing, at
any time within the ensuing six months, not exceeding in value
$400. The tools and implements of a mechanic or artisan
necessary to carry on his trade; the instruments and chests of
a surgeon, physician, surveyor, and dentist, necessary to the
exercise of their profession, with their scientific and profes-
596
THE LAW OF ATTACHMENT.
Exemptions.
sional libraries, and the libraries of an attorney or counsellor,
and the libraries of ministers of the gospel.. The cabin or
dwelling of a miner, not exceeding in value $500; also all
tools and implements necessary for carrying on any mining
operation not exceeding in value $500; and two horses, mules,
or oxen, with their harness, and food for the same for one
month, when necessary to be used in such mining operations.
Two oxen, two horses, or two mules, and their harness, and
one cart or wagon, by the use of which a cartman, huckster,
peddler, teamster, or other laboror, habitually earns his living;
and one horse, with vehicle and harness, or other equipments,
used by a physician or surgeon or minister of the gospel in
making his professional visits, and food for such oxen, mules,
or horses, for one month. One sewing machine, not exceeding
in value $150, in actual use by the debtor or his family. All
fire engines, hooks and ladders, and all apparatus and furniture
belonging to any fire company or department. All arms,
uniforms, and accoutrements required by law to be kept by
any person. All court-houses, jails, public offices and buildings,
lots, grounds, and personal property; the fixtures, furniture,
books, papers, and appurtenances belonging and pertaining to
the court-house, jail, and public offices belonging to any county
in the State, and all cemeteries, public squares, parks and
places, public buildings, town halls, public markets, buildings
for the use of the fire departments and military organizations,
and the lots and grounds thereto belonging and appertaining,
owned or held by any town or incorporated city, or dedicated
by such town or city to health, ornament, or public use, or for
the use of any fire or military company organized under the
laws of this State. None of the above articles or species of
property are exempt from execution issued upon a judgment
recovered for its price, or upon a mortgage thereon. The
earnings of a judgment debtor arising from his personal
services for the thirty days preceding the making of the
order (in supplemental proceedings), to the extent of $50, are
exempt, when it shall be made to appear by the debtor's
affidavit, or otherwise, that such earnings are necessary for
STATUTORY PROVISIONS.
597
Exemptions.
the use of a family supported wholly or partially by his labor.
Homestead not exceeding $5,000 in value, to be selected by
husband or wife, or other head of a family.
New Hampshire. There is exempt from attachment and
liability to be taken upon execution, the following goods and
property:-
Necessary wearing apparel of the debtor and his family;
necessary beds, bedsteads, and bedding for the debtor and his
family; household furniture to the value of $100; one cooking
stove and its furniture; one sewing machine; bibles and school
books in actual use; library to the value of $200; one cow;
six sheep and their fleeces; one hog, one pig, and the pork of
the same when slaughtered; four tons of hay; provisions and
fuel to the value of $50; tools of his occupation to the value
of $100; beasts of the plough, not exceeding a yoke of oxen
or a horse; the uniform, arms and equipments of every officer
or private in the militia; the debtor's interest in one pew in
any meeting house, and in one lot in any cemetery.'
The wife, widow and children of every person who is the
owner of a homestead, or any interest therein, are entitled to
so much thereof as does not exceed in value $500 as against
creditors, grantees or heirs of such person, during the life of
the wife or widow and minority of the children. If the wife
owns a homestead at her decease the life estate of the surviv-
ing husband, not exceeding the value of $500, is exempt to
him. A homestead of the value of $500 is also exempt to an
unmarried person owning the same."
New Jersey. All goods and chattels, not exceeding in val-
ue the sum of $200 exclusive of wearing apparel, and all wear-
ing apparel the property of any debtor having a family resid-
ing in this State, are exempt from seizure by virtue of execu-
tion or other civil process, except for the purchase money.' In
¹ G. L. 517, 518.
* G. L. 330, 831.
Rev. p. 286.
598
THE LAW OF ATTACHMENT.
Exemptions.
addition thereto, by conforming to the provisions of the stat-
ute made for that purpose, the lot and building thereon, occu-
pied as a residence and owned by the debtor, being a house-
holder and having a family, to the value of $1,000, are exempt
by law from sale or execution for debt.'
New Mexico Territory. There is exempt from attachment
or seizure by other civil process the following: a homestead not
exceeding $1,000 in value, if debtor is head of family, and in
such case also clothing, beds, bed clothing, firewood for thirty
days, bibles, hymn books, school books used by family; family
pictures and provisions not exceeding $25 in value, and furni-
ture not exceeding $10 in value. Tools and implements neces-
for debtor to carry on his trade not exceeding $25 in value.
sary
New York. Code, section 1390. The following personal
property when owned by a householder is exempt from levy
and sale by virtue of an execution; and each movable article
thereof continues to be so exempt, while the family, or any
of them are removing from one residence to another: 1. All
spinning wheels, weaving looms, and stoves, put up or kept
for use, in a dwelling house; and one sewing machine, with
its appurtenances.
}
2. The family bible, family pictures, and school books,
used by or in the family; and other books, not exceeding in
value $50, kept and used as part of the family library.
3. A seat or pew, occupied by the judgment debtor, or the,
family, in a place of public worship.
4. Ten sheep, with their fleeces, and the yarn or cloth
manufactured therefrom; one cow; two swine; the necessary
food for those animals; all necessary meat, fish, flour and vege-
tables, actually provided for family use; and necessary fuel,
oil and candles, for the use of the family for sixty days.
5. All wearing apparel, beds, bedsteads, and bedding nec-
essary for the judgment debtor and the family; all necessary
cooking utensils; one table; six chairs; six knives; six forks;
¹ Rev. p. 891.
STATUTORY PROVISIONS.
599
2+
Exemptions.
six spoons; six plates; six tea cups; six saucers; one sugar
dish; one milk pot; one tea pot; one craue and its append-
ages; one pair of and-irons; one coal scuttle; one pair of
tongs; one lamp; and one candlestick.
6. The tools and implements of a mechanic, necessary to
the carrying on of his trade, not exceeding in value $25.
Section 1391. In addition to the exemptions, allowed by
the last section, necessary household furniture, (1) working tools
(2) and team (3) professional instruments, furniture and li-
brary, not exceeding in value $250, together with the necessary
food for the team, for ninety days, are exempt from levy and
sale by virtue of an execution, when owned by a person, being
a householder, (4) or having a family for which he provides,
except where the execution is issued upon a judgment recov、
cred wholly upon one or more demands, either for work per-
formed in the family as a domestic or for the purchase money
(5) of one or more articles, exempt, as prescribed in this or the
last section.
§ 1392. Where the judgment debtor is a woman, she is
entitled to the same exemptions, from levy and sale by virtue
of an execution, subject to the same exceptions, as prescribed
in the last two sections, in the case of a householder.
§ 1393. The pay and bounty of a non-commissioned
officer, musician or private, in the military or naval service of
the United States; a land warrant, pension or other reward,
heretofore or hereafter granted by the United States, or by a
State, for military or naval services; a sword, horse, medal,
emblem, or device of any kind, presented as a testimonial, for
services rendered in the military or naval service of the United
States; and the uniform, arms, and equipments, which were
used by a person in that service, are also exempt from levy and
sale, by virtue of an execution, and from seizure for non-pay-
ment of taxes, or in any other legal proceeding.
§ 1394. A right of action to recover damages or dam-
ages awarded by a judgment, for taking or injuring personal.
property, exempt by law from levy and sale, by virtue of an
execution, are exempt for one year after the collection there-
600
THE LAW OF ATTACHMENT.
Exemptions.
of, from levy and sale, by virtue of an execution, and from
seizure in any other legal proceeding.
§ 1395. Land, set apart as a family or private burying
ground, and heretofore designated, as prescribed by law, in
order to exempt the same, or hereafter designated for that
purpose, as prescribed in the next section, is exempt from sale
by virtue of an execution, upon the following conditions only:
1. A portion of it must have been actually used for that pur-
posc. 2. It must not exceed in extent one-fourth of an acre. 3.
It must not contain, at the time of its designation, or at any
time afterwards, any building or structure, except one or more
vaults, or other places of deposit for the dead, or mortuary
monuments.
§ 1396. In order to designate land, to be exempt as pre-
scribed in the last section, a notice, containing a full descrip-
tion of the land to be exempted, and stating that it has been
set apart for a family or private burying ground, must be sub-
scribed by the owner; acknowledged or proved, and certified, in
like manner as a deed to be recorded in the county where the
land is situated ; and recorded in the office of the clerk or reg-
ister of that county, in the proper book for recording deeds,
at least three days before the sale of the land, by virtue of the
execution.
§ 1397. A lot of land with one or more buildings there-
on, not exceeding in value $1,000, owned and occupied as a
residence, by a householder having a family, and heretofore
designated as an exempt homestead, as prescribed by law, or
hereafter designated for that purpose, as prescribed in the next
section, is exempt from sale, by virtue of an execution, issued
apon a judgment, recovered for a debt contracted after the
30th day of April, 1850, unless the judgment was recovered
wholly for a debt or debts contracted before the designation
of the property,' or for the purchase money thereof.
§ 1398. In order to designate property, to be exempted
as prescribed in the last section, a conveyance thercof, stating,
in substance that it is designated to be held as a homestead,
exempt from sale by virtue of an execution, must be recorded,
STATUTORY PROVISIONS.
601
Exemptions.
as prescribed by law; or a notice, containing a full description
of the property, and stating that it is designated to be so held,
must be subscribed by the owner, acknowledged or proved,
and certified in like manner as a deed to be recorded in the
county where the property is situated; and must be recorded
in the office of the clerk of that county, in a book kept for
that purpose, and styled the "homestead exemption book."
§ 1399. A lot of land, with one or more buildings there-
on, owned by a married woman, and occupied by her as a resi-
dence, may be designated as her exempt homestead, as pre-
scribed in the last section; and the property so designated is
exempt from sale, by virtue of an execution, under the same
circumstances, and subject to the same exceptions, as the home-
stead of a householder, having a family.
§ 1400. The exemption, prescribed by the last three sec-
tions, continues, after the death of the person in whose favor
the property was exempted, as follows:-1. If the decedent
was a woman, it continues, for the benefit of her surviving
children, until the majority of the youngest surviving child.
2. If the decedent was a man, it continues, for the benefit of
his widow and surviving children, until the majority of the
youngest surviving child, and until the death of the widow.
But the exemption ceases earlier, if the property ceases to be
occupied as a residence, by a person for whose benefit it may
so continue, except as otherwise prescribed in the next section.
§ 1401. The right to exemption of a person entitled thero-
to, as prescribed in the last four sections, is not affected by a
suspension of the occupation of the exempt property, as a resi-
dence, for a period not exceeding one year, which occurs in
consequence of injury to, or destruction of, the dwelling house
upon the premises.
§ 1402. The cxemption of a homestead, otherwise valid
under the provisions of this article, is not void, because the
value of the property, designated as exempt, exceeds $1,000.
In that case the lien of a judgment attaches to the surplus, as
if the property had not been designated as an exempt home-
stead; but the property cannot be sold by virtue of an execn-
602
THE LAW OF ATTACHMENT.
Exemptions.
tion, issued upon a judgment, as against which it is exempt.
After the return of such execution, the owner of the judg
ment may maintain a judgment creditor's action, to procure a
judgment, directing a sale of the property, and enforcing his
lien upon the surplus.
§ 1403. Where the judgment, in a judgment creditor's
action, brought as prescribed in the last section, or in any other
action affecting the title to an exempt homestead, directs the
sale of the property, the court must so marshal the proceeds of
the sale, that the right and interest of each person in the pro-
ceeds, shall correspond as nearly as may be, to his right and
interest in the property sold. Money, not exceeding $1,000,
paid to a judgment debtor, as representing his interest in tho
proceeds, is exempt for one year after the payment, as the
property sold was exempt; unless, before the expiration of
the year, he causes real property to be designated as an exempt
homestead, as prescribed in section 1398 of this act; in which
case the exemption ceases, with respect to so much of the money,
as was not expended for the purchase of that property; and
the exemption of the property so designated extends to every
debt, against which the property sold was exempt. Where
the exemption of property, sold as prescribed in this section,
has been continued after the judgment debtor's death, or where
he dies after the sale, and before payment to him of his pro-
portion of the proceeds of the sale, the court may direct that
portion of the proceeds, which represents his interest, to be
invested for the benefit of the person or persons, entitled to
the benefit of the exemption; or to be otherwise disposed of, as
justice requires.
§ 1404. The owner of real property, exempt as prescribed
in this article, may, at any time, subscribe a notice, and per-
sonally acknowledge the execution thereof, before an officer,
authorized by law to take the acknowledgement of a deed, to
the effect, that he cancels all exemptions from levy or sale
by virtue of an execution, affecting the property, or a par-
ticular part thereof, fully described in the notice. The can-
cellation takes effect, when such a notice is recorded as
STATUTORY PROVISIONS.
603
Exemptions.
prescribed in this article for recording a notice to effect the
exemption so cancelled. Any other release or waiver, here-
after executed, of an exemption of real property allowed by
this article, or of an exemption of a homestead, or à private or
family burying ground, allowed by the provisions of law here-
tofore in force, is valid. A mortgage, hereafter executed,
upon property so exempt, is ineffectual, until the exemption
has been cancelled, as prescribed in this section; except that
such a mortgage is valid, to the extent of the purchase money
of the same property, secured thereby.
·
North Carolina. The following property is exempt in this
State: Every homestead, and dwellings and buildings used
therewith, not exceeding in value $1,000, to be selected by the
owner thereof; or in lieu thereof, at the option of the owner,
any lot in any city, town or village, with the dwellings used
thereon, owned and occupied by any resident of the State, and
not exceeding the value of $1,000. Personal property of the
value of $500.'
Ohio. Every unmarried woman may hold the following
property exempt from execution, attachment or sale, to satisfy
any judginent, decree, or debt, to wit: 1. Wearing apparel,
not exceeding $100 in value. 2. One sewing machine. 3. One
knitting machine. 4. Bible, etc., and other books not exceed-
ing in value $25.¹
•
Every person who has a family, and every widow, can hold
exempt from execution, attachment, or sale for any debt, dam-
ages, fine or amercement: 1. Wearing apparel of such person
or family, necessary beds, etc., two stoves, and fuel for sixty ·
days. 2. Certain domestic animals and their feed for sixty
days, or, in lieu of such as the debtor has not, household fur-
niture of equal value, amounting in the aggregate, to $65. 3.
Family books and pictures. 4. Provisions to the amount of
$50, and other necessary household furniture to the amount of
1 Battle's Rev. ch. 55.
R. S. § 5426.
604
THE LAW OF ATTACHMENT.
•
Exemptions.
$50. 5. One sewing machine, one knitting machine, the tools
and implements of debtor necessary for carrying on his or her
trade or business, whether mechanical or agricultural, to the
amount of $100. 6. The personal earnings of debtor or minor
child for three months previous to the issuing of the attach-
ment or rendition of judgment, when necessary for support of
debtor or his or her family. 7. All animal, vegetable or min-
eral specimens of natural history or science not kept for pe-
cnniary gain.'
In addition to the above, the debtor, if a drayman, can hold
one horse, harness and dray; if a farmer, one horse or one yoke
of cattle, with nccessary gearing for same, and one wagon; if
a physician, one horse, one saddle and bridle, and professional
books, medicine and instruments, not exceeding $100 in value.'
Where the lands of a decedent are sought to be sold on the
petition of his executors or administrators to pay debts, and
such decedent has left a widow, and a minor child numarried,
and composing part of the decedent's family after his death,
the appraisers shall proceed to set apart a homestead by metes
and bounds, not exceeding $1,000 in value, and when such
homestead is of greater value and will not in the opinion of
the appraisers bear division without manifest injury and incon-
venience, then such executors or administrators shall be enti-
tled to the annual rental value over $100 payable in quarterly
payments. Such homestead so set apart by appraisers, in cases
where executors or administrators are proceeding to sell lands
of a decedent to pay his debts, shall remain exempt from sale
on execution and exempt from sale under any order of the
court so long as any unmarried minor child resides thereon,
although the widow die, and the unmarried minor child or
children of a decedent actually residing on the family home-
stead shall be entitled to hold the same exempt from sale on
execution, although the parent from whom the same descended
left no wife or husband surviving.'
'R. 8. § 5430.
R. 8. § 5431.
* Laws of Ohio, vol. 77, p. 210.
STATUTORY PROVISIONS.
605
Exemptions.
•
IIusband and wife living together, a widow or widower
living with an unmarried daughter, or unmarried minor son,
may hold exempt a family homestead not exceeding $1,000 in
value. When the homestead is of greater value and will not,
in the opinion of the appraisers, bear division, the plaintiff in
execution is entitled to the annual rental value over $100 until
the debt, costs, and interest are paid.' Any resident of Ohio,
the head of a family, and not the owner of a homestead, can
hold other personal property to be selected by him, and not ex-
ceeding an appraisement of $500, in addition to the amount
of chattel property otherwise exempted. The exemption of a
homestead of the value of $1,000, above provided for, also the
exemption of $500 in lieu of such homestead, do not extend
to a judgment rendered on a mortgage executed by a debtor
and his wife, nor to a claiɩn for work and labor less than $100,
nor to impair a lien by mortgage or otherwise of a vendor for
the purchase-money of the premises in question, nor the lien
of a mechanic or other person under any statute of this State,
for materials furnished or labor performed in the erection of
the dwelling-house thereon, nor for the payment of taxes due
thereon.'
Oregon. The following property shall be exempt from
execution, if selected and reserved by the judgment debtor or
his agent at the time of the levy, or as soon thereafter before
sale thereof as the same shall be known to him, and not other-
wise. Books, pictures, and musical instruments owned by any
person, to the value of $75; necessary wearing apparel owned
by any person, to the value of $100, and if such person be a
householder, for each member of his family to the value of
$50; the tools, implements, apparatus, team, vehicle, harness,
or library necessary to enable any person to carry on the trade,
occupation, or profession by which such person habitually earns
his living, to the value of $400; also sufficient quantity of
food to support such team, if any, for sixty days. The word
Rev. Stats., §§ 5435, 5438, 5439.
1 Rev. Stats. §§ 5434 5441.
606
THE LAW OF ATTACHMENT.
•
Exemptions.
"team,” in this subdivision, shall not be construed to include
more than one yoke of oxen, or pair of horses or mules, as the
case may be.
The following property, if owned by a householder and in
actual use, or kept for use, by and for his family, or when be-
ing removed from one habitation to another on a change of
residence: Ten sheep, with one year's fleece, or the yarn or
cloth manufactured therefrom, two cows and five swine;
household goods, furniture, and utensils, to the value of $300;
also, food sufficient to support such animals, if any, for three
months, and provisions actually provided for family use, and
necessary for the support of such householder and family for
six months; the seat or pew occupied by a householder, or his
family, in a place of public worship; all property of the State,
or any country, incorporated city, town, or village therein, or
of any other public or municipal corporation of like character.
No article of property, or if the same has been sold or ex-
changed, then neither the proceeds of such sale, or the article
received in exchange therefor, shall be exempt from execu-
tion issued on a judgment recovered for its price.
Every white male citizen of this State above the age of
sixteen years shall be entitled to have and keep, for his own
use and defense, the following fire-arms, to wit: cither or any
one of the following named guns, and one revolving pistol:
a rifle shot gun (double or single barrel), yager, or musket;
the same to be exempt from execution in all cases, under the
laws of Oregon.'
Pennsylvania. The law exempts from exccution property
either real or personal, to the value of $300, in addition to
wearing apparel, bibles and school-books, if claimed by the
debtor; the privilege is personal and may be waived at any
time. The widow or children or any decedent are entitled to
the same amount from his estate for her or their use. All
sewing-machines belonging to scamtresses are also exempt.
The "homestead" is not exempt from execution.
1 Oregon Code, p. 613.
STATUTORY PROVISIONS.
607
Exemptions.
Rhode Island. The law exempts from sale on exccution,
the household furniture and family stores of a housekeeper,
provided the same do not exceed in value $300; all the neces-
sary wearing apparel of a debtor and his family; one cow, one
hog, and the tools or implements of debtor's profession to the
value of $200. Debts secured by promissory notes or bills of
exchange, are also exempted. There is no homestead exemp-
tion.'
South Carolina. The following amendment to art. II. § 32,
of the Constitution was formally ratified in December, 1880,
and an act was passed carrying it into effect.
"The general assembly shall enact such laws as will ex-
empt from attachment and sale under any mesne or final pro-
cess issued from any court to the head of any family residing
in this State a homestead in lands, whether held in fee or any
lesser estate, not to exceed in value $1,000, with the yearly
product thereof; and every head of a family residing in this
State, whether entitled to a homestead exemption in lands or
not, personal property not to exceed in value the sum of $500.
Provided, that in case any woman having a separate estate
shall be married to the head of a family who has not of his
own sufficient property to constitute a homestead as hereinbc-
for provided, said married woman shall be entitled to a like
exemption as provided for the head of a family: Provided
further, that there shall not be an allowance of more than
$1,000 worth of real estate and more than $500 worth of per-
sonal property to the husband and wife jointly: Provided,
that no property shall be exempt from attachment, levy, or
sale for taxes, or for payment of obligations contracted for the
purchase of said homestead or the erection of improvements
thereon: Provided further, that the yearly products of said
homestead shall not be exempt from attachment, levy, or sale
for the payment of obligations contracted in the production
of the same. It shall be the duty of the general assembly at
their first session to enforce the provisions of this section by
¹ Gen. Stats. ch. 198.
608
THE LAW OF ATTACHMENT.
Exemptions.
suitable legislation." The homestead right cannot be waived
or alienated, nor can the homestead be sold for any other
purpose than the purchase of another homestead.
Tennessee. Thirty dollars of the wages of mechanics or
laborers are exempt from seizure by execution, attachment, or
garnishment; and wages not due at the time of service of gar-
nishment are not garnishable.
The following personal property is exempt from execution,
seizure, or attachment, in the hands of heads of families: Two
beds, bedsteads, and necessary clothing for each, and for cach
three children of any one family, one additional bed, bedstead,
and necessary bedclothing, the value of such beadsteads in no
case to exceed twenty-five dollars; two cows and calves, and
if the family consists of six or more persons, three cows or
cows and calves; one dozen knives and forks, one dozen plates
half dozen dishes, one set of table spoons, one set of tea spoons,
one bread-tray, two pitches, one waiter, one coffee-pot, one
tea-pot, one canister, one cream-jug, one dozen cups and
saucers, one dining-table and two table cloths, one dozen
chairs, one bureau, not to exceed forty dollars in value, one
safe or press, one wash basin, one bowl and pitcher, one
washing kettle, two washing tubs, one churn, one looking glass,
one chopping axe, one spinning wheel, one loom and gear, one
pair cotton cards, one pair wool cards, one cooking stove and
utensils, or one set of ordinary cooking utensils, one meal sieve
and one wheat sieve, one cradle, one bible and hymn-book, and
all books used in school, two horses or two mules, or one horse
and mule, or one horse or mule and one yoke of oxen,
one ox-cart, yoke, ring, staple and log chain, one two, or one-
horse wagon, not to exceed seventy-five dollars in value, and
harness, one man's saddle, one woman's saddle, two riding
bridles, twenty-five barrels of corn, twenty bushels of wheat,
five hundred bundles of oats, five hundred bundles of fodder,
one stack of hay, not to exceed $20 dollars in value, and if the
family consists of less than six persons, one thousand pounds of
pork, slaughtered or on foot, or six hundred pounds of bacon,
STATUTORY PROVISIONS.
609
Exemptions.
or if the family consists of more than six persons, then twelve
hundred pounds of pork or nine hundred pounds of bacon,
and all the poultry on hand and fowls to the value of $25; a
home-made carpet, manufactured by the wife or any female
member of the family, for family use and being so applied,
six cords of wood, or one hundred bushels of coal, fifty head of
sheep, and the fleece that may be shorn from the same; and
twenty-five stands of bees and the product of the same: and to
heads of families, or any single female who uses the same for
a livelihood, one sewing machine, one hundred gallons of sor-
ghum molasses, five bee hives and the products of the same,
one hundred pounds of soap fifty pounds of lard, one hundred
pounds of flour, fifty pounds of salt, one hundred pounds of
beef or mutton, one pound of black pepper, one pound of
spice, one pound of ginger, twenty pounds of coffee, fifty pounds
of sugar, three bushels of meal, one bushel of dried beans, one
bushel of dried peas, fifty bushels of Irish potatoes, fifty bush-
els of sweet potatoes, (provided they be kept for family use,
and not for sale or merchandise), ten bushels of turnips, one
pair of andirons, one clock, all the canned fruit put up for the
nse of the family, not to exceed $20 in value, twenty bushels
of peanuts, three strings of red peppers, two gourds, two punger
gourds, a carpet in actual use by the family not exceeding in
value $25, and two hundred bushels of cotton seed.
If the head of the family is engaged in agriculture there is
further exempt in his hands the following property: Two
plows, two hoes, one grubbing hoe, one cutting knife, one har-
vest cradle, one set of plow gears, one pitchfork, one rake,
three iron wedges, five head of sheep, and ten head of stock
hogs. There is exempt in the hands of each mechanic in the
State, who is engaged in the pursuit of his trade or occupation,
one set of mechanic's tools, such as are usual and necessary
to the pursuit of his trade; and, if he is the head of a family,
$200 worth of lumber or material, or products of his labor;
also one gun in the hands of every male citizen of the age of
eighteen years and upward, and every female who is the head
of a family; to the heads of families fifty pounds of picked
89
010
THE LAW OF ATTACHMENT.
·
Exemptions.
cotton and twenty-five pounds of wool, and a sufficient quantity
of upper and sole leather to provide winter shoes for the
family.
All of said personal property and homestead shall be ex-
empt from seizure in criminal as well as in civil cases, but not
exempt from distress or sale for taxes, or on a judgment for
failure or refusal to work on public roads, or for fines and costs
for voting out of the civil district or ward in which the voter
lives, or for carrying deadly or concealed weapons contrary to
law, or for giving away or selling intoxicating liquors on elec-
tion days.'
When a debtor absconds or leaves his family, the exempted
property shall be set apart for the use of the wife and family,
and shall be exempt in the hands of the wife or children; and
such property on the death of the owner, shall be exempt in
the hands of the widow, and if there be no widow, such prop-
erty shall be exempt for the benefit of the minor children nn-
der fifteen.
A homestead or real estate in the possession of or belong-
ing to each head of a family, and the improvements thereon to
the value, in all, of $1,000, shall be exempt from sale under
legal process during the life of such head of a family, and
shall inure to the benefit of his widow, and be exempt from
eale in any way at the instance of any creditor or creditors
during the minority of the children occupying the same and
until the youngest child reaches the age of twenty-one years;
provided that said real estate shall not be alienated without the
joint consent of the husband and wife, where that relation ex-
ists, to be evidenced by conveyance duly executed, as required
by law for married women, and provided, further, that such
real estate shall not be exempt from sale for the debt or pub-
lic taxes legally assessed upon it, or from sale for the satisfac-
tion of any debt or liability contracted for its purchase, or leg-
ally incurred for improvements made thereon. Each head of
¹ Act 1870, 2d Sess., ch. 80, § 1; Code, 2114 a.
• Code, § 2111 a.
STATUTORY PROVISIONS.
611
Exemptions.
a family owning real estate shall have the right to elect where
the homestead, or said exemption, shall be set apart, whether
living on the same or not. These provisions apply as well to
equitable as legal estates.' The homestead exempt in the
possession of a husband shall, upon his death, go to his widow
during her natural life, with the products thereof for her own
use and benefit, and that of her family who reside with her,
and upon her death it shall go to the minor children of the de-
ceased husband, free from the debts of the father, mother, or
said children, and upon the death of said minor children, or
their arrival of age, the same may be sold, and the proceeds
distributed amongst all the heirs at law of the deceased, head
of a family, according to the laws of descent and distribution
in this State.*
Texas. By the Constitution of 1875, the homestead of a
family not in a town or city is made to consist of not more than
two hundred acres of land, which may be in one or more par-
cels, with the improvements thereon. The homestead in a city
town or village, of lot or lots, not to exceed $5,000 in value at
the time of designation, without reference to the value of im-
provements thereon; provided the same shall be used for the
purpose of a home, or as a place to exercise the calling or busi-
ness of the head of a family. The homestead is protected from
forceed sale for the payment of all debts, except for purchase
money, taxes due thereon, or for work and material used in
constructing improvements thereon; and in respect to the last
the contract for work and material must be with the consent
of the wife given in the manner provided by law. In addition
to this, it is provided that in the case of the death of a person
leaving wife and children, or either, there shall be granted out
of the estate a sum sufficient to support them one year; also,
if the exempted articles provided for by law do not exist in
kind, the property of the estate may be sold for cash to raise
their value, not to exceed $5,000 for homestead, and $500 for
¹ Act 1870, § 2; Code, § 2115 a.
* Act 1870, §7; Code, § 2120 a.
612
THE LAW OF ATTACHMENT.
Exemptions.
other exempted property. There is also exempted to every
family, free from forced sale for debts: all household and kit-
chen furniture; any lot or lots for sepulture in a cemetery; all
implements of husbandry; all tools and apparatus belonging to
any trade or profession, and all books belonging to private or
public libraries, and family portraits and pictures; five milch
cows and calves; two yoke of work oxen; two horses and one
wagon; one carriage or buggy; one gun; twenty hogs; twenty
head of sheep; all provisions and forage on hand for home con-
sumption; all bridles, saddles, and harness necessary for the
use of the family. And to every citizen not a head of a fam-
ily, one horse, bridle and saddle; all wearing apparel; any lot
or lots for sepulture in a cemetery; all tools, apparatus, and
books belonging to his trade, profession or private library.
Current wages for personal services are not subject to garnish-
ment. Articles otherwise exempt may be made subject to
valid liens.
Homesteads are granted to actual settlers upon public lands
who remain three years; to heads of families, one hundred and
sixty acres ; to single men, eighty acres; at no other cost than
the payment for surveying and patenting.
Utah Territory. The following property shall be exempt
from execution; chairs, tables, desks and books amounting to
$100; necessary household and kitchen furniture, provisions
and fuel for sixty days. Farming implements, two oxen, two
mules or two horses and their harness, one cow and calf for
every five persons in the family, cart or wagon, food for such
horses, mules, oxen and cow for sixty days, and seed, &c., for
planting amounting to $100. Tools of mechanics, instruments
of physicians, surgeons or dentists with professional library,
law library of attorney, four hundred dollars in tools, cabin
and bed of miner with thirty days' provisions, two oxen, or
mules, or horses, and sixty days' provisions for teamster or
cartman who habitually earns his living thereby, horse har-
ness, and vehicle used by a physician or minister of the gos-
pel, sewing machine. If the debtor be the head of a family,
•
STATUTORY PROVISIONS.
613
Exemptions.
a further exemption is allowed of five sheep and their wool for
every person in the family, two hogs, three pigs, personal ser-
vices of the debtor or his family within sixty days next pre-
ceding the levy, a homestead valued at $1,000, and $200 cash
for each member of debtor's family. Court houses, public
buildings, property of fire companies, cemeteries, parks and
churches. No property is exempt owned by non-residents or
for purchase price of the thing sold. Redemption-Leasehold
estate, less than two years unexpired, sale shall be absolute.
In all other cases real property shall be subject to redemption:
First, the judgment debtor, or his successor in interest in the
whole or any part of the property; second, a creditor having a
lien by judgment or mortgage on the property sold, or on
some part thereof, subsequent to that on which the property
was sold, within six months after sale of the property, by pay-
ing the purchase money in kind as specified in the judgment
(gold or currency) with six per cent. thereon added, together
with any assessment or tax which the purchaser may have paid
since the purchase, and if the purchaser be also a creditor, hav-
ing a lien prior to that of a redemptioner other than the judg-
ment under which the purchase was made, the amount of such
lien with interest. If the property be so redeemed by a re-
demptioner, either the judgment debtor or another redemption-
er may, within sixty days of the last redemption, again redeem
it from the last redemptioner on paying the sum paid on such
last redemption, with three per cent. thercon in addition, and
the amount of any assessment or tax which the last redemp-
tioner may have paid thereon after the redemption made by
him, with interest on such amount, and in addition, the amount
of any liens held by said last redemptioner prior to his own
with interest, provided that the judgment under which the
property was sold need not be paid as a lien. The property
may
be again redeemed as often as a debtor or redemptioner
is so disposed, from any previous redemptioner, within sixty
days after the last redemption, with three per cent. thereon in
addition, and amount of any assessment or tax which the last
redemptioner paid after the redemption by him, with interest
614
THE LAW OF ATTACHMENT.
Exemptions.
thereon and the amount of any liens other than the judgment
under which the property was sold, held by the said last re-
demptioner previous to his own with interest,
Vermont. The exemption laws of this State apply to the
following property: Homestead to the value of $500, and pro-
ducts, such suitable apparel, bedding, tools, arms, and articles
of furniture as may be necessary for upholding life; one sew-
ing machine kept for use, one cow, the best swine, or the meat
of one swine, ten sheep, and one year's product of said sheep
in wool, yarn or cloth; forage sufficient for keeping not exceed-
ing ten sheep and one cow through one winter; ten cords of
firewood, twenty bushels of potatoes, such military arms and
accoutrements as the debtor is required by law to furnish; all
growing crops, ten bushels of grain, one barrel of flour, three
swarms of bees and lives, together with their produce in honey;
two hundred pounds of sugar, and all lettered gravestones ; the
bibles and other books used in a family; one pew or slip in a
meeting house or place of religious worship; live poultry not
exceeding in amount or value the sum of $10; the professional
books and instruments of physicians, and the professional books
of clergymen and attorneys at law, to the value of $200, and
also one yoke of oxen or steers as the debtor may select, or two
horses kept in use for team work, and such as the debtor may
select, in lieu of oxen or steers, but not exceeding in value the
sum of $200, with sufficient forage for the keeping of the same
through the winter; also one two-horse wagon with whiffle-
trees, and one neck yoke, or one ox-cart, as tho debtor may
choose, one sled or one set of tram-sleds, either for horses or
oxen, as the debtor may select, two harnesses, two halters, two
chains, one plow and one ox-yoke, which with the oxen, or
steers, or horses, which the debtor may select for team work,
shall not exceed in value $250; provided that the exemption
of said one two-horse wagon with whiffletrees and one neck-
yoke, or one ox-cart, as the debtor may choose, one sled or set
of tramsleds, harnesses, halters, plow and ox-yoke are not to
extend to or affect any attachment in any suit founded on any
STATUTORY PROVISIONS.
615
Exemptions.
contract made on or before the 1st day of December, a. d.
1878, or to any execution issued on a judgment founded on any
such contract; provided, however, the exemption, as to one
yoke of oxen or steers and the forage therefor, is not to extend
to any attachment issued on any contract made on or before
the 21st day of November, 1859, or the exemption as to two
horses and the forage therefor, on or before the 1st day of De-
cember, 1866, or any execution issued on a judgment founded
on any such contract.
Virginia. Every householder or head of a family shall be
entitled, in addition to the articles mentioned below, to hold
exempt from levy his real and personal property, or either, in-
cluding money or debts due him, to a value not exceeding
$2,000, to be selected by him. In case of husband, parent, or
other person, who is a housekeeper and head of a family, there
are also exempt, family bible, family pictures, books, etc., not
exceeding $100 in value; a pew in a church, lot in a burial
ground, necessary wearing apparel of debtor and family, neces-
sary beds, bedding, etc., stoves for necessary use of family, not
exceeding three; one cow, one horse, six chairs, one table, six
knives, six forks, six plates, one dozen spoons, two dishes, two
basins, one pot, one oven, six pieces of wood or earthenware,
one loom, one safe or press, spinuing wheel, pair of cards, one
axe, two hoes, five barrels of corn, five bushels of wheat or one
barrel of flour, two hundred pounds of bacon, three hogs, $10
worth of forage; one cooking stove and utensils for cooking;
one sewing machine; and in case of a mechanic, the tools of
his trade to the value of $100; if debtor at the time is actually
engaged in agricultural pursuits, there are exempt, whilst so
engaged, one yoke of oxen, or a pair of horses or mules in lieu
thereof, one wagon, two plows, one drag, one harvest cradle,
one pitchfork, one rake, two iron wedges.' The foregoing list
of exemptions, except the item of $2,000, applies to debts con-
tracted since February 20th, 1867; the exemption affecting
debts contracted before that time, embraces but a small pro-
'Code, 1873, p. 476.
616
THE LAW OF ATTACHMENT.
Exemptions.
portion of the above described articles. The benefit of a home-
stead ($2,000) can only be secured by deed duly recorded in the
county where the property, or the greater part thereof, is sit-
uated, declaring an intention to claim such homestead, with a
description of the property so claimed as such homestead. The
homestead continues after death of the householder or head of
a family for the benefit of the widow and children of the de-
ceased until her death or marriage, and after her death or mar-
riage for the exclusive benefit of the minor children until the
youngest child becomes twenty-one years of age;' after which
period it shall pass, according to the law of descent, as other
real estate, or as may be devised by said householder, not being
subject to dower, yet subject to all the debts of the said house-
holder or head of a family. The Court of Appeals of Virginia
has decided that the provision of the State Constitution and
the act of the General Assembly passed in pursuance thereof,
known as the "Homestead Execution Laws," so far as they
apply to contracts entered into or debts contracted before their
adoption, are in violation of the Constitution of the United
States, and therefore void.
Washington Territory. Every householder, being the head
of a family, is entitled, as exempt from attachment and execu-
tion, to a homestead not exceeding in value the sum of $1,000
while occupied as such by the owner thereof or his or her fam-
ily. The following property shall also be exempt from exe-
cution: All wearing apparel, private libraries, family pictures,
and keepsakes; to each householder one bed and bedding, and
one additional bed and bedding for every two members of the
family, and other household goods, utensils, and furniture, not
exceeding $150 coin in value; two cows and calves, five swine,
two stands of bees, twenty-five domestic fowls, and provisions
and fuel for the comfortable maintenance of such householder
and family for six months. To a farmer, one span of horses
and harness, or two yoke of oxen with yokes and chains, and
one wagon; also farming utensils actually used about the farm,
¹ Code, 1878, p. 1172.
STATUTORY PROVISIONS.
617
Exemptions.
not exceeding in value $200 in coin. To a mechanic, the tools
of his trade, also material not exceeding in value $500 coin.
To a physician, his library not exceeding in value $509 coin,
also one horse and buggy, the instruments used in his practice
and medicines not exceeding in value $200 coin. To attor
neys, clergymen, and other professional men, their libraries,
not exceeding $500 coin value, and office furniture, fuel and
stationery, not exceeding $200 coin value. All firearms kept
for the use of any person or family. To all persons, a canoe,
skiff, or small boat, with its oars, sails and rigging, not exceed-
ing $50 coin. To a person engaged in lightering for his
sup-
port, one or more lighters, barges or scows, and a small boat
with oars, sails and rigging, not exceeding in the aggregate
$250 coin value. To a teamster or drayman, his team-the
word team meaning a span of horses, harness, and one wagon
or dray. To a person engaged in logging for the support of
himself and family, three yoke of work cattle, with their yokes
axes, chains, and implements for the business, and camp equip-
ments, not exceeding $300 coin in value; a sufficient quantity
of hay, grain, or feed to keep the animals hercin exempt for
six months. No property shall be exempt from an execution
issued on a judgment for the price or any part of the price
thereof.
West Virginia. Any husband or parent residing in this
State (or the infant children of deceased parents)' may set
apart his personal estate, not exceeding $200 in value, to be
exempt from execution or other process. No exemption shall
affect or impair any claim for purchase-money of the personal
estate in respect to which such exemption is claimed, or any
proceeding for the collection of taxes on county or district
levies. As against debts created since August 22, 1872, he or
they may also hold a homestead of the value of $1,000, pro-
vided the homestead is recorded among the public land records,
of the county wherein it is situate, before the debt against
which it is claimed is contracted, except debts incurred for the
¹ Acts 1881, ch. 19
618
THE LAW OF ATTACHMENT.
•
Exemptions.
purchase-money thereof, for the erection of permanent im-
provements thereon, and for taxes due thereon.' Any resi-
dent, mechanic, artisan, or laborer, whether a husband or
parent or not, may hold the working tools of his trade or occu-
pation to the value of $50 exempt, provided that in no case
shall the exemption allowed any one person exceed $200.*
Wisconsin. A homestead consisting of any quantity of
land not exceeding forty acres, nsed for agricultural purposes,
and the dwelling house thereon and its appurtenances, to be
selected by the owner thereof, and not included in any city or
village; or instead thereof, at the option of the owner, a quan-
tity of land not exceeding in amount one-fourth of an acre,
being within a city or village, and the dwelling house thereon
and its appurtenances, owned and occupied by any resident of
the State, shall not be subject to forced sale on execution, or
any other final process from a court, for any debt or liability
except mechanic's liens, mortgages and taxes. Family bible,
family pictures, and school books, library of debtor, and every
part thereof, but not circulating libraries, wearing apparel of
debtor and family, all beds, beadsteads and beddings kept and
used for the debtor and his family, all stoves put up and kept
for use, all cooking utensils, and all other household furniture
not herein enumerated, not exceeding $200 in value; two
cows, ten swine, one yoke of oxen and one horse and mule,
two horses or two mules, ten sheep, and the wool from
same either raw or manufactured; the necessary food for above
stock for a year's support; one wagon, cart, or dray, one
sleigh, one plow, one drag, and other farming utensils, inclnd-
ing tackle for teams, not exceed $200 in value, provisions and
fuel for one year; tools and implements or stock in trade of
a mechanic, minor, merchant trader, or other person, not ex-
ceeding $200 in value; all moneys from insurance of exempt
property; all sewing machines kept for use; any swords,
plate, books, or other articles presented by Congress or any
¹ Acts 1881, ch. 19; art. 6, § 48, Const. of 1872.
' Acts 1881, ch. 19.
STATUTORY PROVISIONS.
619
Exemptions.
legislature; printing materials and press, or presses, used in
the business of any printer or publisher, to an amount not ex-
ceeding $1,500 in value; fire engines and equipments, and
everything connected with fire departments, including houses
and lots, &c. All private property shall be exempt from seiz-
ure and sale upon any execution issued to enforce any jndg-
ment or decree of any court, which shall have been rendered
against any county town, village, city, or school district. The
earnings of married persons and persons having a family to
support, for three months prior to issue of process, to the
mount of $60, are also exempt.'
Wyoming Territory. The exemptions are the following:
The necessary wearing apparel of every person not exceeding
in value $150. Household property when owned by any per-
son being the head of a family to the amount of $500.
Tools, teams, implements, or stock in trade of any mechanic,
miner, or other person, used and kept for the purpose of carry-
ing on his trade or business, not exceeding in value $300 and
homestead occupied by the owner or his or her family not ex-
ceeding in value $1,500. No article of personal property is
exempt from attachment or sale on execution for the pur.
chase money of said article. Persons claiming exemption
inust be bona fide residents of this Territory. No property of
any person about to remove or abscond from the Territory is
exempt.
¹ Rev. Stat. ch. 130, §§ 2982–2984.
TABLE OF CASES.
Abbe v. Newton..
...19 Conn. 20.
Abell v. Williams.
...8 Daly, 17..
Abercrombie v. Alderson.... ...9 Ala. 981.
Abington v. North Bridgewater......23 Pick. 170...
…………
Ableman v. Booth………
Acker v. Campbell...
Ackley v. Chamberlain.
Ackroyd v. Ackroyd……….
Acton v. Knowles...
Adams v. Filer....
Adams v. Fox...
Adams v. Hackett..
Adams v. Smith..
Adams v. Wheeler..
Adee v. Cornell..
Albany City Ins. Co. v. Whitney......70 Pa. St. 248………
Albee v. Webster..
Alberston v. Goldby
Aldrich v. Brooks...
Alexander v. Dennis,
Alexander v. Tams….
Allan v. Martin..
25 Hun, 78……..
16 N. H. 302.
28 Ala. 711……….
7 Fost. 241....
•
Allen v. Berry.
Allen v. Brown.
Allen v. Doyle...
Allen v. Erie City Bank..
Allen v. Hawley.
Allen v. Massey
Allen v. McCalla....
Allen v. Meyer....
Allen v. Sewall..
Allen v. Woodward.
...
··
··
··
...
....
21 How. (U. S.) 517…….
.23 Wend. 342.....
....16 Cal. 181..
..20 How. 98, 69.....
.14 Ohio St. 18...
.7 Wis. 806..........
··
7 Vt. 861...
.7 Cal. 187..
.Breese, 221..
.10 Pick. 199.
··
...
..
9 Port. (Am.) 174………
13 Ill. 221...
.10 Wend. 800…….
50 Mo. 00……….
5 Lans. 511..
....83 Mc. 440...
57 Pa. St. 129..
•
66 Ill. 168...
.2 Abb. U. S. 60.......
.25 Iowa, 464........
73 N. Y. 1...
.2 Wend. 827..
.22 N. H. 544……..
Page
209
250
803,315
122
... 219
240
325
63
407
862
440
839
250
276
250
20
403
444
850
28
291
452
298
890,391
442
833
327
272
407
873
228
520
[621]
622
TABLE OF CASES.
Allman v. Gann..
Alsbrook v. Hathaway…….
Alston v. Newcomer.
Alvord v. Lent........
Alvord C. M. Co. v. Gleason….
American Bank v. Rollins..
American Exchange Bank v. Webb...86 Barb. 291....
...
.12 Cal. 11..
..6 Wis. 861....
.49 Me. 881..
11 Ala. 953...
1 McM. Eq. 27.
.54 Barb. 620…….
Ames v. Hoy
Ames v. Martin...
Ames v. Taylor……………......
Anderson v. Brooks.......
Anderson v. Fuller..
Anderson v. O'Reilly..
Anderson v. Roberts...
Anderson v. Wanzer,
Andre v. Fitzhugh.
Andrew v. Fleming
Andrews v. Glenville Woolen
Andrews v. Heriot..
··
•
Andrews v. Keith..
Andrws ev. Ludlow..
··
•
Austin v. Bell…………
Austin v. Burgett.
Austin v. Burlington
...
.29 Ala. 240.
.8 Sneed (Tenn.) 454..
42 Miss. 180 .. .. 130,108,123
.23 Mich. 869....
.86 Conn. 86...
………………
.99 Mass. 813..
.2 Dall. 94...
Co.....50 N. Y. 282.
..4 Cowen 516..
..84 Ala. 722...
…….5 Pick. 28 ..
Andrews v. Mich. Cent. R. R. Co……….99 Mass. 534…….
....
•
·
…….18 Johns. 515……….
..5 How. (Miss.) 587..
•
18 Mich. 98....
Andrews v. Pond……………
··
..17 Mo. 894..
.13 Pet. (U. S.) 651.
Anthony v. Comstock.....………………………1 R. I. 454………………
Anthony v. Rogers..
Anthony v. Shaw...
Anthony v. Stype...
Anthony v. Wade...
Archer v. Hubbell..
Argyle v. Dwinel..
Armstrong v. Bicknell.
Arnold v. Ridge..
Artisans' Bank v. Park Bank.
Artisans' Bank v. Treadwell.........34 Barb. 553....
2 Lans. 210…….
13 C. B. 745..
41 Barb. 599..
•
.7 R. I. 275……….
...19 Hun, 265.......
1 Bush, 110....
.4 Wend. 514...
29 Me. 29..
..
....
•
252
238
98
.1 Hill, 302..………………
··
Ash v. Putnam...
Ash v. Savage.
Atlantic Mutual Life Ins. Co. v. McLoon, 48 Barb. 27..............
.242, 210
245
273
88
..5 N. H. 545....
...
Atkins v. Prescott..
...10 N. H. 120............... 858
..1 Pick. 851.
Atkins v. Sawyer...
Atkinson v. Jordan...
Attorney-General v. Heelis..........2 Sim. & S. 67....……………….
287
261
5 Ohio, 295....
•
Atwood v. De Forest.
222
813
253-262
> ·
Page
811
52
....19 Conn. 518.......
20 Johns. 442.
10 Iowa, 802...
.84 Vt. 500...
311
249
8
263
76
813
407
275
272
162
294
852
464
284
891
117
247
837
89
98
437
289
242
... 169
305
280
299
195
440
TABLE OF CASES.
623
Austin v. G. W. R. R. Co……….
Austin v. Johnson....
Austin v. Sawyer..
Austin v. Stanley...
Austin v. Underwood..
Averill v. Loucks....
Ayres v. Husted..
…………
..
Babb v. Clemson....
Babb v. Reed..
Babcock v. Eckler...
Babcock v. Malbie
Bachman v. Crawford.
Bache v. Lawrence..
Packburst v. Clinkard………
Bacon v. Daniels....
Bacon v. Leonard…….
Bacon v. Scannell..
Bacon v. Thorp..
Badlam v. Tucker.....
Badlam v. Cox...
Baere v. Armstrong.
Bagley v. Bailey....
Bailey v. Burton...
Baird v. Kirtland..
Bain v. Clark……….
Baker v. Fuller.........
Baker v. Moody..
Baker v. Webb....
Baker v. Kenworthy.
Bakewell v. Ellsworth...
Baldwin v. Peet..
Baldwin v. Buchanan….......………….
Baldwin v. Jackson...
...
...
..
Ball v. Claflin...
Balch v. Patten.........
Ball v. Gardner...
Ball v. Loomis...
88. L. J. Q. B. 202.........
.7 Humph. 191……………….
9 Cow. 89……..
•
..46 N. H. 51..
.37 Ill. 438…….
6 Barb. 19.
.15 Coml. 544.....
..5 Rawle, 151...
24 N. Y. 623..
279
222
259
7 Martin, N. S. 139........ 244
3 Humph. (Tenn.) 213..... 805
17 How. 554………..
.111, 112
··
10 S. & R. 428....
•
C
•
1 Shower, 109 (Holt 648) 192, 196
...116 Mass. 474..........440-464
...4 Pick. 277.
..59
‚59 Cal. 271…..
.27 Conn. 251...
1 Pick. 899…...
.11 Ired. 456..
.26 Hun, 19...
....16 Me. 151...
..8 Wend. 242.
8 Ohio, 21……….
•
10 Johns. 424...
.21 Pick. 818…….
.1 Ala. 315……..
405
279
437
241
290
800
...293, 289
256
288
251
435
864
.....1 Hayward, 43............. 299
....41 N. Y. 215…….
838
244
261
71
430
445
52
888
280
444
.256, 257
...
•
6 Hill, 484...
22 Tex. 712.
….9 Abb. N. 8. (N. Y.) 142...
...12 Mass. 181.
.5 Pick. 808
45 Mo. 41....
..21 Wend. 270......
251
829
807
191, 263
821, 446
.29 N. Y. 412
.21 Wend. 222.
26 Hun, 353……..
8 Abb. N. S. 122.
Page
41
202
•
•
Ball v. Shell…….
Ball v. Slafter……….
Ballouhey v. Cadot…….
870
Baltes v. Ripp....
.3 Keyes, 219...........242, 241
B. & O. R. R. Co. v. Gallahue.......12 Gratt. (Va.) 655...
Bancker v. Brady.
Bauk v. Levy...
833
.26 La. Ann. 749.
246
.1 McMullan, 481........... 832
..
....
624
TABLE OF CASES.
Bank of Augusta v. Earle..
13 Peters (U. S.)
Bank of Alabama v. Fitzpatrick…………….4 Humph. 311.
Bank of Georgia v. Higginbottom....9 Pet. 48....
Bank of Hartford v. Waterman......26 Conn. 332..
Bank of Lansingburgh v. Crary... 1 Barb. 532...
Bank of Mutual Redemption v. Sturgis. 9 Bosw. 608.
Bank of Northwest v. Taylor.
16 Wis. 609.…….
………… •
Bank of Pa. v. Potius.
.10 Watts, 148.
.1 Hill, 275……….
.8 Wend. 158..
Bank of Rome v. Curtiss..
Bank of Silver Creek v. Talcott......22 Barb. 550..
Bank of North America v. McCall ...4 Binn. (Pa.) 374….
Bank of Orange Co. v. Brown.....
Banker v. Caldwell..
Banlett v. Blodgett...
Barber v. The Hartford Bank.
Barber v. Robeson....
Bard v. Chamberlain
Barker v. Bell.
Barker v. Binninger..
Barker v. Esty...
Barker v. Garland…….
Barker v. Miller.
Baker v. Warren....
Barksdale v. Hendrie...
Barnes v. Anderson..
Barnes v. Buck
Barnes v. Fergus..
Barnes v. Provoost...
Barnes v. Webster.
Barney v. Griffin...
Barney v. Griffin..
Barney v. Patterson.
Barnum v. Hempstead..
Baron v. Biaren.
Barrett v. Warren
Barron v. Cobeleigh..
Barrow v. Burbridge.
Barry v. Bockover.
Barry v. Fisher.........
•••
····
....
··
...
..
..
•
Bartholomew v. West..
Bartlett v. Harlow....
Bartlett v. New York City.
Bartlett v. Wood
Barton v. Fisk.....
..
·
...
···
..
..
...17 N. H. 298..
..
•
9 Conn. R. 407...
8 Me. 17....
.8 Sandf. Ch. 84............ 282
.87 Ala. 358…….
353
287
.14 N. Y. 270... ...406, 427, 453
....19 Vt. 181..
..22 N. H. 103..
6 Johns. 195...
6 Gray. 527..
857
427
429
·· •
..2 P. & H. (Va) 43…..
...
•
8 Minn. 94......
··
..
3
.4 N. Y. Leg. Obs. 346 ……….. 309
1 Lans. 268 ...
53, 216
.51 Ill. 352..
257
.4 Johns. 61…….
296
.16 Mo. 258....
888
..... 2 N. Y. 366..
261
262
.6 H. & J. (Md.) 182..
18
7 Paige, 568
203
.3 Law Bull. 50............ 390
..
53
.436-439
183
111, 112
.8 Abb. N. S. (N. Y.) 869………….73,
···
2 Dill. 293..
··
··
196, 298
827
...12 Mass. 848..298, 127, 113, 114
...5 Sandf. 44....108, 112, 117, 124
.82 Vt. 872.
80 N. Y. 166…….
350
391
...........6 Abb. 274
•
··
.4 Sandf. Ch. 552...
3 Hill, 348....
.11 N. H. 557....
..41 Miss. 622..
....
··
...
...
Page
210
388
250
401
250
244, 833
··
.41, 51, 194
402
401
265
51
39
231
257
206
.145, 194
··
··
••
TABLE OF CASES.
625
...
···
Barton v. Wilkinson..
Bascom v. Smith...
Bassett v. Garthwaite.
Bate v. McDowell...
Bates v. New Orleans, &c. R. R. Co..13 How. 516...
Bates v. N. O. J. & G. N. R. R. Co...13 How. 516.
Bates v. N. O. J. & G. N. R. R. Co..4 Abb. 72……….
Batley v. Faulkner.
Bauer v. Antoine……
Baugh v. Kirkpatrick.
Baune v. Thomassin…….
Bausman v. Smith……..
Bawley v. Angira..
Baxter v. Missouri, Kansas & Texas
Railway Co............
.....67 Barb. 283....
Baxter v. Mo. Kнs. & Tex. R. R. Co..4 Hun, 630........
Beach v. Schmultz.....
Beal v. Alexander..
..20 Ill. 185..
...........1 Rob. (La.) 277..
Beall v. Beall .......
Beau v. Smith..
Beaty v. Perkins.....
Becker v. Becker..
Beek v. Massey.
Beekman v. Lansing.
Beeks v. Lyon...
Beers v. Place...
Behrens v. McKenzie...
Belcher v. Grubb………
Bell v. Douglass..
Bell v. Mali...
Bellinger v. Gardner
Bellows and Peck's Case.....
Bellows v. Patridge
...
Belmont v. Lane........
Bempde v. Johnstone....
Benedict v. Bray...
Benedict v. Bunnell.
.....7 Cal. 245..
Benedict v. Huntingdon.............32 N. Y. 219..
Bennett v. Avant......
Bennett v. Brown....
Bennett v. Child..
Bennett v. Edwards.....
Bennett v. McGuire.
Bennett v. Union Bank…….
Benson v. Berry…………
··
...
..
··
Tage
408
160
201
.22 Tex. 280..
.14 Weekly Dig. 244........ 384
.95, 245
··
847
352
96
463
245
.18 Vt. 186,,.....
.81 N. Y. 595..
...
•
•
...
..3 B. & Ald, 298, 448.
22 La. An. 145 ..
..54 Pa. St. 84…………
....6 Martin N. S. (La.) 563……….
2 Ind. 374...
.49 Vt. 41....
··
...2 Mason, 252.
..6 Wend. 383..
...
..
.3 H. & McH. (Md.) 847…………….
...
··
...
··
...
273
407
.47 Barb. 497...
11 Rich. 14..
8 Wend. 446..
...21 Con. 604...
86 Conn. 578.
..23 Iowa, 833.
4 Har. (Del.) 461.......... 856
279
839
890
.1 Yerger, 397..
236
371
11 How. 254..
2 Abb. 441..
.3 Story, 428...
385
……..
183
19 Barb. 176.,,,
264
.22 How. (N. Y.) 365.......
167
.8 Vesey, 198...
120
.2 Cal. 251.
388
..
823
250, 265
...
···
...
27 Hun. 352.
.58 Barb. 625...
.5 Humph. 612…….
55 Earb. 620...
...
34
67, 48. 61
440
...
...
..2 Snced (Tenn.) 152..184, 139–41
20 N. Y. 99..
.19 Wis. 362..
.883, 884, 889
297
871, 373
260
236
338
414
413
403
464
85
254
402
305
40
626
'TABLE OF CASES.
Benton v. Hope.....
Berly v. Taylor....
Berry v. Harris……
Berry v. Hayden.
Berry v. Smith..
Besley v. Palmer...
··
··
..
...
Blako v. Hatch...
Blake v. Locy..
Blanchard v. Grousset.
Blanchard v. Russell..
.5 Humph. 392…….
..
.5 Hill (N. Y.) 577…………………….
....22 Md. 80...
.7 Daly, 550........
··
.19 Wis. 581.
.84 Me. 278.
Betz v. Conner..
Bevitt v. Crandall..
Bicknell v. Trickey.
Bidleson v. Whytel...
Biddolph v. Temple....
Bigelow v. Congregational Society....11 Vt. 283..
..8 Burr. 154…….
...1 Lev. 260..
..17 Barb. 894...
Bigelow v. Finch....
Bigelow v. Pritchard.
Biggs v. Blue.…………….
Bildersee v. Aden……….
Billingsley v. White…..
Bingham v. Maxey..
Bingham v. Smith....
Bishop v. Hubbard........
Bissell v. Hopkins….
Bissell v. Huntington..
Bivens v. Harper……..
Black v. Brisbin….
Black v. Nease....
Black v. Paul...
Black v. Zacharie & Co..
Blackit v. Crisrop..
Blackmer v. Phillips.
Blain v. Harrison.
Blair v. Cantey……
Blako v. Bernhard......
Blason v. Bruno........
Bleren v.
Frecr...
Blight v. Banks........
Bliss v. Molter..
..
.7 Iowa, 472..
...
.........3 Wash. C. C. 60...
...1 Hill (N. Y.) 482, 104, 182,
74-5....
.21 Pick. (Mass.) 169
.5 McLean, 148..
.62 Barb. 175...
59 Pa. St. 464…….
.15 Ill. 290....
....
.5 Ala. 651....
.23 Cal. 517.
..8 Cow. 166............
3
.2 N. H. 142..
··
....59 Ill. 21...
8 Minn. 860...
·
.37 Pa. St. 483..
...10 Mo. 103.....
11 Ill. 884....
·
.2 Speers (S. C.) 84..
3 Hun, 897...
•
25 Vt. 555...
8 How. (U. 8.) 483.
Ld. Raymond...
.67 N. C. 840...........
6 How. 108....
•
52
.196, 858
261
444
Blossom v. Estes...
Board of Supervisors....
Board of Supervisors of Tazewell Co.
v. Davenport..................
▼.
Page
241
83
279, 276
815
..1 La. An. 96……….
.13 Mass. 1................
..
21 How. 112……..
.10 Cal. 172..
..
6 Monr. 92.…..
.2 Law Bul. 21..
..84 N. Y. 615……….
…….76 Ill. 544..
.403--464
279
800
855
827
280, 271
441
848
20
254
363
27
278
291
298
840
163
833
873
26
101
871
409
81
81
242
290
189
20
439
886
.896, 397
246
..40 Ill. 197.......... 108,127,180
TABLE OF CASES.
627
W
··
...
Boardman v. Bickford.
Boardman v. Cushing..
Boardman v. Halliday.
Boardman v. House..
Bobb v. Woodward.
Boddell v. Dunn...
Bogard v. Gardley.
Bogart v. Dart....
Bogert v. Haight.
Bogert v. Perry.
Bogart v. Swezey.
Boggs v. Bindskoff.
Boies v. Henney..
Bond v. Padelford..
Bond v. Seymour...
Bond v. Ward…….
Bond v, Willett........
Bonesteel, v, Flack..
Bonnell v. Bowman..
Bonnell v. Dunn......
Bonnell v. Smith..
Boomer v. Laine....
Boorman v. Brown....
Booth v. Bunce....
Borland v. O'Neal,
Bosher v. Roullier..
Boson v. Sandford
...1 Shower, 29.
41
Boston C. & M. R. R. Co. v. Gilmore. 37 N. H. 410............... 237
Bostwick v. Burnett......
266
Boughton v. Bank of New Orleana....2 Barb. Ch. 458…………
..74 N. Y. 817…….
285, 290
418
Bowe v. Knickerbocker Ins.
Bowen v. First National
Co.......14 W. Dig. 447.
Bank of
··
··
❤
...
Medina...
Bowen v. Parkhurst,
Bowen v. Slocum.
Bowles v. Bowen....
Bowne v. Witt...
Bowman v. Cornell...
Bowman v. Herring.
Bowman v. Quackenboss.
Bowman v. Sheldon...
Bowman v. Smiley
Bowman v. Stark...
Bowzey v. Newbegin..
Boyce v. Smith...
··
Page
135
833
263
10 Paige, 223.
18 Wend. 512... ....... 112
50 Mo. 95....
298
.2 Aiken (Vt.) 845
...12 N. H. 105...
··
...
.5 Dutch, 305...
..4 8. & M. 802............. 260
S.
25 Huo, 395……..
….5 Paige, 297…..
….17 Johns, 351…..
26 Hun, 463...
.23 Ill. 66....
..82 IIL 130...
5, 7, 146
268
290, 291, 293
395, 897
143
157
425
254
………………
13 Mass. 894..
..1 Chand. 40...............
7 Mass. 123……..
234,403
.81 N. Y. 102....... 400,419,429
..
...41 Barb. 435.
··
·
..
.53 Ill. 460……….
4 Dutch. 153..
53 Ill. 877...
.10 Wend. 522.
.82 Q. B. 511..
83 N. Y. 139…….
.22 Cal. 504..
256,253
809
.........4 Abb. 296................. 460
...........17 Wis. 181.
.45 N. H. 124.
...19 Wend. 475…….
89 Barb. 69,272.......
......4 Harring Del. 458.........
•
.....3 Code R. 17..
........5 Sandf. 657..
….31 Pa. St. 223…….
.6 N. H. 459..
.....34 How. 408..458, 412, 90, 91, 215
24 Ill. 257...
261
20
452
206
401
48 Me. 410....
16 Mo, 817.
246
806
803
206
452
50
804
873
811
453
813
241
628
TABLE OF CASES.
>
Boyd v. Boyd....
Boykin v. Edwards....
Boyle v. Franklin Ins. Co…….
Boynton v. Veazie.
Boynton v. Warren..
Brackett v. Harvey..
Brackett v. Waite.
Brackett v. Watkins....
...
Page
..2 Nott & McCord, 125...... 884
808
853
274
Bridge v. Eggleston..
Bridges v. Hines..........
Bridges v. North..
Bridges v. Perry…………………
Briggs v. Block...
Briggs v. Gleason........
Briggs v. Mason.........
Briggs v. Parkman,
Briggs v. Strange…………………….
Driggs v. Taylor…….
Bright v. Eynon.
….21 Ala. 261…...
7 W. & 8. 76...
..24 Me. 286...
...........99 Mass. 172........... 428,430
256,257
…..25 Hun, 502..
...4 Vt. 859...
259
821
Bradbury v. Smith....
21 Me. 117...
194
233
.8 Dana, 67...…………
....6 Vt. 121..
848
Bradford v. Gillespie……..
Bradley v. Cooper..
Bradley v. Obear....................10 N. H. 477.....
Bradshear v. Ellis.
246
235
··
2 Dev. & B. 23.
...1 Abb. 76..
Brady v. Bissell........
874
Brady v. French......................28 Vt. 546..
800
Brady v. Harris........
277
Bragg v. State……….
242
.18 Pa. St. 113…….
30 Ind. 426...
22 1owa, 264..
51 Ga. 113……….
Brainard v. Van Kuran…….
....... 830
..
Branch v. Adam….
858
Branch Bank of Mobile v. McDonald. 22 Ala. 474............ 185,187
Brashear v. West...
7 Pet. 608....
262
279
.43 Pa. St. 104…..
Brann v. Kelly......
Brauser v. New England F. Ins. Co....21 Wis. 500................ 836
Bray v. David........
.44 Ala. 295…….
··
809
891
Bray v. Poillon....
.......2 Hun, 883..
857
.1 Yeates, 488..
..4 Zabr. 287...
..........71 N. Y. 502.
249
206
Brazier v. Chappell..................2 Brev. 107…….…………………………………. 863
Brealsford v. Meade……
Brearly v. Cox....
Brennan v. Willson.......
Brewer v. Leimaeus..
.86 Me. 428.......
Brewer v. Tucker....
13 Abb. 76......
Brewster v. Hammet.
........4 Conn. R. 540...
200
Brewster v. Power..................10 Paige, 502.......280, 255, 293
Brewster v. Van Ness....
123
.871, 459, 460
402
267
….18 John. 183..
.14 Mass. 245..
.18 Md. 104..
.22 Ga. 52….
262
21 Wend. 68...
•
..
14 Vt. 262.......
.18 Mo. 281..
29 Vt. 78...
..81 Vt. 438.
.2 Met. 258...
.17 Mass. 405...
..28 Vt. 180..
.1 Bur. 890……..
.75,860
431
.864, 837
433
485
258
237
431
28
TABLE OF CASES.
629
Brigham v. Tillinghast.
Brineger v. Griffin..
Britton v. Lorenz.
Bromley v. Coxwell..
.2 B. & P. 438…..
Brooklyn Daily Union v. Hayward……..11 Abb. N. §. 235.
Brookman v. Metcalf..
82 N. Y. 891……..
·
...
Brooks v. Cook…...
Brooks v. Hyde......
Brooks v. Powers..
Brooks v. Wimer…….
Brown, In re......
Brown v. Agnew..
Brown v. Anderson,
Brown v. Atwell...
Brown v. Bates...
Brown v. Coleman....
Brown v. Davis....
Brown v. Gleed...
Brown v. Heath.......
Brown v. Hoy..
Brown v, Keller……..
Brown v. Montgomery...
Brown v. Richardson..
Brown v. Webb..
Brown v. Witt.....
Brown v. Wood……….
Brownell v. Carnley...
Brownell v. Manchester..
Browning v. Hanford..
Brownstone v. Brownstone....
Bruce v. Bruce.
Bruce v. Coleman...........
Bruce v. Holden.
Bruce v. Pettengill....
....
Brundred v. Del Hoyo..
Brunson v. Grant…….
Brussie v. Griffith.
Bryan v. Ashley.
Bryant v. Osgood……….
Bryant v. Robinson……
Bryant v. Simoneau..
Buck v. Sherman.
Buckingham v. Nelson..
Buckley v. Lowry.
Buckley v. Wells.....
……….
··
.13 N. Y. 215.
2 La. An, 154..
.45 N. Y. 51..
.8 Mass. 246....
··
.87 Cal. 873.........
..15 Mass. 244...
20 Mo. 503...
21 Wend. 316...
6 Watts & S. (Pa.) 238......
•
.4 Martin N. S. 416……….
....81 Me. 851....
··
··
9 Hun, 43.......
.83 Vt. 147...
.45 N. H. 168..
•
1 Harrison, 157……..
.82 Ill. 152...
...
.55 Me. 520...
.24 Ill. 630............. 275,276
►
...
827
..20 N. Y. 287..
281
1 Martin N. 8. (La) 202..... 185
1 Watts, 411....
··
285
.19 Wendell 475......... 320,305
6 Rich. Eq. 155..
241
.3 Duer, 9...
.1 Pick. 332...
5 Den. 586…….
4 B. Monr. 535..
.2 Bos. & Pull. 229…….
.1 Handy, 515..………………………. .891,892
..
21 Pick. 187...
12 N. H. 541…….
Spencer (N. J.) 828…….
..48 Ga. 894.
84 Cal. 802..
....13 S. & M. (Miss.) 284..
.52 N. H. 182..
•
..16 Mo. 129…..
.51 Ill. 324…….
.2 Doug. (Mich.) 176..
.42 Miss. 417.
··
2 Mich. 418…...
.33 N. Y. 518…….
Page
261
64
270
54
870
283
848
827
272,280
256
882
63
....
839
446
243
244,322,333,411
812
434
832
84
...
430
433
287
...* 121
452
463
... 108
290
36
194
409,430
289
145-166
.. 287
807
8
297
630
'TABLE OF CASES.
194
240
188
289
858
840
272
.49 Ill. 62………
157
.11 N. H. 48..
120
280
•
Bucklin v. Thompson..
Buckmaster v. Smith.
Budd v. Hiler.....
Buddington v. Stewart....
Buffington v. Gerrish..
Buffum v. Seaver...
Buford v. Bufford..
Bulfinch v. Winchenback.
Bulkley v. Eckert..
Bullis v. Borden....
Bullock v. Narrott..
Bump v. Smith………
Bumpas v. Gregory.
Bumpus v. Maynard..
Burbank v. Hammond.
Burckle v. Eckhart...
Burd v. Dansdale....
Burdick v. Post....
Burge v. Cone..
Burgess v. Atkins.
Burgess v. Clark.
Burgin v. Burgin.
Burke v. Murphy.
Burke v. Whitcomb.
Burkhardt v. McClellan….
Burnham v. Beal……..
8 Yerger, 46....
..88 Barb. 626..
.......8 Sumner, 429..
......8 Den. 279..
.320, 200
203
96
207
...2 Binn. 80...
.....6 N. Y. 522………….
....6 Allen, 412.
261
274
194
135
5 Ired. 837
…..3 Ind. 250...
..1 Ired. 160..
.27 Miss. 107…….
293
253
.18 Vt. 421..
352
..
..1 Abb. Ct. of App. 263...... 405
14 Allen, 217…….
337
.278, 279
....
848
854, 855
…..5 N. H. 566………
849
.193, 438
840
·
1 Strobh. (S. C.) 239…….
2 Spear, 878.....
855
.2 Rob. (N. Y.) 701..108, 111, 124
·
Burnham v. Brennan.
....10 J. & Sp. 49..
Burnham v. City of Fond du Lac………..15 Wis. 193...
Burnham v. Folsom..
Burnley v. Lanbert..
Burrall v. Acker...
Burrell v. Letson....
Burrell v. Letson..
Burrill v. Jewett..
Burroughs v. Wright...
Burrows v. Miller…
Burrows v. Stebbins..
Burrows v. Stoddard..
Burrows v. Stumm..
Bursley v. Hamilton.
Burt v. Perkins...
Burtis v. Thompson..
Burton v. Smith……
...16 Vt. 619...
839
...1 How. 849..
112
26 Vt. 659
278
•
430, 484, 447
296
..8 Conn. 160.
22 How. 169…….
..15 Pick. 40.
....9 Gray, 317..
439
439*
25
42 N. Y. 247.
.49 Ala. 293..
889
89
Bushel v. Com. Ins. Co.....
Butler v. Jaffray..
.15 8. & R. (Pa.) 173........
.12 Ind. 504..
261
...
··
···
...
...
··
...
1 J. J. Marsh. 223...
22 Vt. 203...
•
•
•
...14 Conn. 404…….
15 Mass. 156
27 N. J. L. 43..
16 N. H. 160……….
·
..1 Bibb, 306....
3 Allen, 161..
3 Pa. St. 868……….
··
• •
21 Wis. 136.
•
...
...
··
1 Wash. (Va.) 308……….
..23 Wend. 606...
•
•
Page
273
245
52
*
TABLE OF CASES.
631
Butler v. Roys.
Butt v. Peck.
Butts v. Collins...
Byar v. Griffin…
Byrd v. Hall.
Cadbury v. Nolen...
Cadwalader v. Howell,
Cafiero v. Demartino.
Cahoon v. Marshall.
Cairns v. Bleecker.
Calahan v. Babcock....
Cadwell v. Colgate.
Caldwell v. Fifield
Caldwell v. Haley...
Calhoun v. McLendon...
Callender v. Furbish...
Camberford v. Hall..
Cameto v. Dupuy...
Cammann v. Tompkins..
Camp v. Chamberlain..
Campbell v. Adair.....
Campbell v. Erie R. R. Co..
Campbell v. Hall………
Campbell v. Hasbrook..
Campbell v. Johnson.
...
··
···
25 Mich. 53.....
.1 Daly, 83……….
263
13 Wend. 139............. 854
862
.81 Miss. 603……..
.2 Keys, 646; 1 Abb. Dec. 285 281
..
.5 Pa. St. 820...
278
..8 Harr. (N. J.) 144..... 108-112
....6 W. Dig. 55...
25 Cal. 197.....
··
386
278
...12 Johns.
54
..21 Ohio St. 281…….
235
7 Barb. 353…….
463
251
4 Zabr. 150.……….
.8 Tex. 817…………
42 Ga. 405...
.46 Me. 226…….
3
206
332-333
.8 McCord (S. C.) 345.... 20-383
..47 Cal. 79....
··
•
•
12 Barb. 265...
.5 Denio, 198.
.45 Miss. 170..
.46 Barb. 540...
..
•
..
···
.McCahon (Kas.) 53..
.24 Ill. 243...
11 Mass. 184…….
11 Iowa, 489...
•
•
Campbell v. Woodworth....
Cannon v. Peebles...
Cantrell v. Conner..
....6 Daly, 89...
Cantwell v. Dubuque Western R. R. Co.17 How. 16..
Capen v. Peckham..
...35 Conn. 88..
Cardinal v. Edwards...
Caring v. Richmond………
Carkhaff v. Anderson....
Carland v. Cunningham..
Carlen v. Drury………..
Carmichael v. Strawn..
Carnana v. Cohon...
Carpenter v. Clark...
Carpenter v. Herrington.
Carpenter v. Roc.....
24 N. Y. 304....
.4 Ired. 204...
•
Pago
298
....
Campbell v. Leonard..
Campbell v. Proprietors of the Champ-
lain & St. Lawrence R. R……………….....18 How. 418..98, 95, 104, 101,102,
97
263,264
263
403
5 Nev. 36....
.22 Hun, 869...
....3 Binney, 4.
•
327
141, 145
407
323
255-417
3
839
234
243
95,96
249
246
237
289
1 Wright (Pa.) 228……….
67
.1 Vesey & Beames, 154..... 222
27 Ga. 341...
284
5 W. Dig. 78...
407
2 Nev. 240..
276
25 Wend. 370…….
322, 811
10 N. Y. 227...........259, 254
632
TABLE OF CASES
Carpenter v. Stevenson........
Carpenter v. Turrell……………..
Carpenter v. Underwood.
Carr v. Van Hoesen..
Carroll v. Finley.
Carrington v. Didier..
Carrington v. Herrin.
Carrington v. Roots.....
Carrith v. Grassee..
Carson v. Allen..
Carter v. Gregory..
Carter v. Watkins..
Carter v. Willard..
Cartwright v. Phoenix...............7 Cal. 281.
Carty v. Fenstemaker............... 14 Ohio St. 45..
Carver v. Braintree Manufacturing Co.2 Story (Mass.) 432
Case v. Bruch....
..2 Caines (N. Y.) 293.
..23 Pa. St. 93.....
..89 N. Y. 164.......
.4 Blackf. 425..
Case v. Dunmore.
Case v. Phelps
Case v. Winship..
Casey v. James..
Casselman v. Packard….
...
Cassilly v. Rhodes..
Castle v. Palmer..
....
..
...
6 Bush, 259....
.100 Mass. 450……….
...19 N. Y. 520..
···
...
464
254
.261, 454
413
186
804
85-42
829
261
82
278
274
274
883
43
63
811
260
274
264
825
.250, 235
829
254
259
.81 N. Y. 51.
47
··
4 Mason (U. S.) 308........ 119
441
.26 Hun, 316...
..26 Barb. 61……..
.8 Gratt. (Va.) 260……….
.4 Bush (Ky.) 624.
.2 M. & W. 255..
11 Gray, 217....
..2 Chand. (Wis.) 123.
....8 Pick. (Mass.) 165.........
.........14 Conn. 240..
19 Pick. 1....
··
Caswell v. Hill………
Catchings v. Manlove...
Catlin v. Adirondack Company.
Catlin v. Gladding.
Catlin v. Lowrey..
Catlin v. Moss...
Catlin v. Ricketts.....
Cautzon v. Door.......
Cavender v. Smith…、
Cecil v. Rose...
18 Pick. 896...
Central Bank v. Prentice.....
Central Bank v. Richland Bank…………….52 How. 136…….
Chadbourne v. Sumner..
Chaffin v. Doub……….
Chaine v. Wilson...
Chamberlain v. Chamberlain.
Chambers v. Lewis…….
Champlin v. Johnson....
.39 Barb. 606...
•
Champlin v. Rowley...
..18 N. Y. 187…….
Chandler v. City of Fond du Lac.....56 How 449...
Chapin v. Marvin..................12 Wend. 538..
87 N. Y. 608...
16 Wis. 115...
12 Ohio, 88……..
·
··
...
.6 Allen, 401...
..47 N. II. 407........
.....
39 Miss. 655...
►
...
1 D. Chip. (Vt.) 896……….
2 Civ. Proc. R. 201....
.....91 N. Y. 608...
27 Miss. 246……
.5 Iowa, 157…….
.17 Md. 92.
··
Page
891
...
896
896
289
286, 285
68
882, 833
91, 92
429
274
16 N. II. 129.
..14 Cal. 384...
..11 How. 552.......108, 111, 112
.Chancery Cases (Eng.) 257.. 72
2 Hilt. (N. Y.) 591.........
53
242
29
450
296
TABLE OF CASES.
633
II.
Chapin v. Thompson...
Chapman v. Brooks…….
Chapman v. Gale....
Chapman v. Hunt.......
Chapman v. White.
Chandler v. Lincoln..
Chatham Bank v. O'Brien…..
··
Chatzel v. Bolton
Chealy v. Brewer.
Cheatham v. Carrington.
Cheatham v. Jones..
Cheddick v. Marsh.
Cheek v. Waldrum.
Cheever v. Wilson...
Cheshire National Bank v. Jewett....119 Mass. 241..
Chicago v. Hasley..
Childs v. Conner..
Childress v. Fowler...
Chipman, in re..
Chittenden v. Hobbs.
Choteau v. Jones....
Christal v. Kelly..
Christian v. Ellis…….
Christmas v. Biddle…………
...
···
···
··
··
..
··
Page
….80 N. Y. 275…..
264
...
... 202
..8 Bos. & Pull. 289..
.82 N. H. 421..
833
2 Beas. Ch. 370........... 243
.6 N. Y. 412...
864
247
236
858
848
185
.68 N. C. 153.....
827
1 Zabriskie (N. J.) 463.…….84, 63
•
.25 Ala. 152...
297
.9 Wall, 108...
.52 Ill. 74……….
..6 Hun, 231…….
.8 McCord, 83:
.7 Mass. 259...
14 La. An. 696..
·
··
•
•
•
••••
117
234
236
259
463
135, 143
195
200
88 N. Y. 235……..
463
..1 Grattan (Va.) 896........ 191
13 Pa. St. 329...
332
25 Id. 595……..
.6 J. & Sp. 471.
.9 Ark. 159…….
1 Wend. 66...
9 Iowa, 417...
11 Ill. 818....
U
·
...
···
....
.14 Iowa, 438..
823
...
.2 Conn. R. 514........ 206, 858
.22 Ill. 455..
891
..25, 256
Christy v. Dyer..
Church v. Knox..
Churchill v. Abraham.
City Bank v. Westbury.
City of Erie v.. Knapp.
Claflin v. Baere…………
Claflin v. Rosenberg.
Clapp v. Hancock Bank,
Clapp v. Utley.....
848
871
278
··
851
Clark v. Foxcroft..
Clark v. Fuller
** 264
........ 7 Me. 848.......torom 448, 447
...21 Barb. 128...
264
Clark v. Gaylor..................24 Conn. 484…………….. 439
Clark v. Gilbert.......
14 Weekly Dig. R41…………………. 258
...2 Mass. 524...
351
246
Clark v. King.
Clark v. Lynch.
Clark v. Morse..
Clark v. Potter...
Clark v. Shannon..
...4 Daly, 83
..10 N. H. 236……………….
13 Gray, 21....
..277, 278, 279
330
324
.1 Nev. 568.
Clark v. Titcomb..
..43 Barb. 122...
283
32 Mc. 34.
·
*** 833
Clark v. Viles....
Clark v.
Ward......
12 Grattan (Va.) 440……………….. 129
..
10 Hun, 458..
.29 Pa. St. 173..
.57 How. 78.........
.42 Mo. 449....
1 Allen, 394.
O
16 How. 884….
..
•
•
··
...
634
TABLE OF CASES.
Clark v. Wilson..
Clarke v. Goodridge..
Clarke v. Harker.....
··
...48 Geo. 598…….
Clarke v. New Jersey Steam Nav. Co..1 Story, 531..
Clarke v. Rannie..
6 Lans. 210..
ment...
Claytor v. Anthony.
Clement v. Clement.
Clement v. Farenback..
Clement v. Little....
Cleneay v. J. R. R. Co........
Clodfelter v. Cox....
Coo v. Wickham...
Coggs v. Bernard.
Clarke v. Terry..
Clarissy v. Metropolitan Fire Depart-
....
•
Closson v. Morris....
Clymer v. Willis......
Coats, in re.....
Cobbs v. Coleman..
Cochran v. Darcy.
Coddington v. Gilbert...
...
Cogsdill v. Brown...
Colburn v. Holland………
3 Wash. (U. S. [C. C.]) 560.
.41 N. Y. 210……….
...
··
......84 Conn. 176........
Collinge v. Heywood..
Collins v. Duffy..
Collins v. Gibson.
Collins v. Hood..
Collins v. Smith.
Collins V. Myers.....
Collins v. Perkins.
Collomb v. Caldwell...
Colt v. Ives....
.7 Abb. N. S. 852......236,237
.6 Rand. 285..
.19 N. H. 460..
··
1 City Ct. R. 57……..
.42 N. H. 563...
.26 Ind. 875……….
.1 Sneed, 330..
..47 N. H. 482..
3 Cal. 363...
....
...
··
··
.8 Abb. Ct. of App. 231…………. 181
.14 Tex. 594……….
807,315
...6 Ch. Leg. News, 230.. 830
..........5 Duer, 72 (S. C., 17 N. Y.
489)... 238,241
284
.3 Conn. 889..
..Smith's Leading Cases (6th
Ed. 177)..
5 Hun, 841…….
50
315
..14 Rich. (S. C.) Equity, 176.. 117
Colby v. Coates....................6 Cush. 558.
849
..18 Mo. 557...
261
Colcord v. Daggett.
Coleman. Bank, etc....
Coleman v. Bean.
275
..
··
244,411
298
89
251
29
16 Ohio, 547..
.81 Vt. 624.…….
16 Nev. 821..
.......31 Conn. 25.
Page
2
.2 Strob. Eq. 285..
··
82 How. 870; S. C., 8 Keyes,
••
855
408
840, 841
Colvin v. Rich..
Colwell v. Carper..
Commercial Bank v. Wilkins.........9 Greenl. 28...
Commonwealth v. Contner.
.18 Pa. St. 439..
Commonwealth v. Dougherty...
........8 Phil. (Pa.) 366.
295
852
873
434
261
••
94..388, 463, 464
9 A. & E. 633..
.......7 La. An. 39.
89...
96
182
..5 Vt. 243...
242
4 McLean (U. ‘S. C. C.)…………. 193
16 Vt. 9.....
427
236
433
268
363
862
821
201
401
206
.8 Porter, 175……
..15 Ohio St. 279..
TABLE OF CASES. ·
635
Comly v. Fisher...
Comstock v. Farnum..
Comstock v. Rayford..
Com. Bank of Pennsylvania v. Union
Bank of New York…………
Congden v. Sanford.
Conkling v. Carson...
Conklin v. Dutcher.
Connah v. Hale...
Connah v. Sedgwick..
Conant v. Bicknell..
Connaughton v. Sands...
Conn. Mut. Life Ins. Co. v. Cleveland
R. R. Co.....
Connelly v. Harrison..
Conner v. Weber..
Conner v. Weber...
Conrad v. McGee……….
·
•
··
..41 Barb. 9....
….16 La. An. 41…….
.12 Hun, 580....
……..12 Hun, 580..
.9 Yerger, 428.
.29 Ala. 607……..
.6 Nev. 190....
Constantine v. Twelves....
Conway v. Edwards...
Cook v. Champlain, &c. Co......... 1 Denio, 91.
Cook v. Dillon..
.9 Iowa, 407....
•
Cook v. Kelly...
.12 Abb. Pr. 35; S. C., 14 Id.
466..
Coolidge v. Wells..
Coombs v. Jordan...
Coombs v. Jordan...
Coombs v. Warren.
Cooney v. Whitfield.
Cooper v. Waldegrave.
Coppell v. Smith.
Copley v. Rose....
Corbett v. Packington...
Corgan v. Frew.
Cornell v. Dakin..
Corning v. McCullough
Corp v. Griswold..
Corson v. Ball,
Courrier v. Cleghorn...
Covert v. Nelson..
Covington Bridge Co. v. Shepherd
..
Cook v. Staats..
..18 Barb. 407...
Cook v. Walthall.
Cooke v. Gibbs.....
.20 Ala. 334.....
3 Mass. 103...
Cooke v. State Nat. Bank of Boston....53 N. Y. 96..........
...
.Taney, 216.
‚2 Mass. 96……….
862,357
12 S. & M. (Miss.) 369...... 272
··
···
...
.19 Barb. 891……….
....Lalor's Suppl. 196.
….11 Ill. 503………
.5 How. 886..
....
.23 Wend. 461……….
...1 Barb. 210....
272
……..1 D. Chipman (Vt.) 50…………. 841
..82 Wis. 887..
206
···
··
84 Mc. 89...
•
..
·
Page
272
434
225
262
874, 384
407
··
.20 Mich. 79....
..2 Bland Ch. 284....... 230,286
..8 Bland, 285.………………………..
··
98
864
254
454
141
257
274
250,247
837,287
270
873
850
820
92
828
.41 How. (N. Y.) 6.........
·
2 Beav. 282...
.4 T. R. 313....
...2 N. Y. 115..
.407,429
.6 Barn. & Cress. 268....... 51
89 Ill. 81..
272
438
•
88 N. Y. 253…….
.1 Comstock, 47.
.27 Iowa, 879..
228
··
813
47 Barb. (N. Y.) 72…………. 70, 894
..8 G. Gr. 523…….
20
362
235
289
161
98
346
.8 Blackf. 265...
··
20 How. (U. S.) 89..232,227,217
636
TABLE OF CASES.
Cowan v. Main…
Cowan v. Wheeler..
Cowperthwaite v. Sheffield...
....
Cox v. Milner......
Cox v. Platt……….
Cox v. Stafford....
...
··
822
........24 Wis. 569.
.....81 Me. 439..
.3 N. Y. 243..
453
864
23 IL. 470..
800
.32 Barb. 126……
268
··
14 How. 519……………. 304, 305, 303
2 Dill. 45....
829
Cox v. Wilder.
Coy v. Lyons....
Coyne v. Weaver...
Craddock v. Riddlesbarger.
Crafts v. Elliotsville..
.....17 Iowa, 1..
84 N. Y. 386.
.2 Dana, 205....
.....47 Mo. 141..
Craig v. Gamble….………………………………………… 5 Fla. 430………….
··
Crane v. Freese......
Crane v. March.
Crane v. Waggoner..
Crandall v. McKay.
Crawford v. Wilson....
Crayton v. Clark……………….
Cresson v. Stout.
Criley v. Vassel……….
Crilly v. Sheriff.
Crippen v. Morrison....
Fox...
Crocker v.
Crocker v. Pierce......
Croghan v. Livingston.....
Crone v.
Odell...
Crooke v. State National Bank of Bos-
ton......
··
...
.1 Har. (N. J.) 305..
...4 Pick. 131.
··
....
....
206
...
.33 Ind. 88…….
.6 Hun, 483…….
868, 374
..4 Barb. (N. Y.) 505.122, 112, 113
….11 Ala. 787……..
802
17 Johns. 116.
.52 Mo. 445..
.25 La. An. 219……….
13 Mich. 87..
1 Root, 823…….
.81 Mc. 177.…….
........17 N. Y. 218.
.2 Wall. 844...
Crosby v. Allyn....
Crosby v. Wadsworth.
Cross v. Brown..
Cross v. Haldeman..
Cross v. Jackson...
Crummen v. Bennel.
Cruyt v. Phillips......
Culver v. Parish...
Cumberland Coal Co. v. Hoffman
Steam Coal Co......
.80 Barb. 159……..
Cumberland Coal Co. v. Sherman.....8 Abb. 243..
Cummings v. Long…..
Cummings v. Vorce...
•
··
....
5 Hill, 478,.
.68 N. C. 494……….
16 How. Pr. 120...
..21 Conn, 408....
...
..10 Iowa, 41..
8 Hill, 282...
•
..1 Edw. Ch. 256..
Page
237
264
250
237
259
.341, 347
188
........50 Barb. (N. Y.) 90.......
Crooker v. Frazier..................52 Me. 406..
.5 Me. 453.
..
6 East, 602....
250
..41 N. H. 283..434, 435, 438, 441
15 Ark. 200 ...
362
224
820
464
261
249
.276, 275
812
249
298
800
387
2
839
288
299, 405
•
Cunningham v. Freeborn.....
Cunningham v. Jones................3 E. D. Smith (N. Y.) 650...
Curd v. Miller…..
.7 Gratt. 185..
211
100
807
53
266
29
280
TABLE OF CASES.
637
Curle v. St. Louis Perpet. Ins. Co....12 Mo. 578.
Curtis v. Hubbard..
..
Curtis v. Norris...
Curtis v. O'Brien..
Curtis v. Riddle..
Curtis v. Root………
Currie v. Riley
Currie v. Sutherland.
Cushman v. Addison.
Cushman v. Haynes...
Cutter v. Copeland.
Cutter v. Perkins..
Cutting v. Pike
...
…………
....
··
···
··
.1 Hill, 336 ..
8 Pick. 280……….
·
··
..20 Iowa, 876..
7 Allen, 187....
.28 IL $67..
....14 W. Dig. 407.
...54 N. H. 475..
.52 N. Y. 628..
.20 Pick. 132..
Dains v. Prosser..
Dame v. Dame..
Dane v. Mallory..
Daniels v. The Justices...
Daniels v. Willard..
....
.32 Barb. 291.
..38 N. H. 429.
16 Barb. 46..
.Dudley (Ga.) 2..
.16 Pick. 36...
Dargan v. Richardson……….
.1 Dudley (S. C.) 62.
Darlington v. Mayor, etc. of New York.81 N. Y. 164...
Davenport v. Ins. Co.....
...17 Iowa, 276…….
Davenport v. Ludlow..
..........4 How. 337.
Davenport v. Lacon…………………….
Davenport v. Swan...
Devenport v. Tilton...
Davlin v. Stone..
Davidson v. Rankin..
Davidson v. Waldron…….
Davis v. Ainsworth.
Davis v. Andrews..
Davis v. Allen...
Davis v. Commonwealth..
Davis v. Evans
Davis v. Garrett...
Davis v. Ham..
Davis v. Henson...
Davis v. Kelley.
Davis v. Marshall.
Davis v. Miller.
Davis v. Mitchell...
Davis v. Peabody..
Davis v. Ransom.
Davis v. Seymour……….
Davis v. Taylor......
...
··
.18 Me. 127.
..47 Me. 557..
.. 21 N. H. 347.
•
···
...
··
...
.8 Irèdell, 459..
8 Mass. 83...
.29 Geo. 845.
14 Iowa, 523……..
.14 Barb. 96..
..1 Vt. 9....
.84 Cal. 87……..
.10 Barb. 91...
··
Page
366
408
338
811
248
286-287
.889-892
•
17 Conn. 273…….
.9 Humphries, 186.
..10 Metcalf, 320…..
.4 Cush. 359……….
34 Cal. 503...
.81 IIL 121...
··
.14 How. 346..
.80 Vt. 678..
.11 Ala. 164.
•*. 304
.13 Grattan, 139………………………….. 892
.5 Ired. 525...
281
229
852
807
829
320
254
804
272
842
291
.809, 815
248
258
284
... 366
241
236
236
853
293
832
... 184
819
228
401
..420
823-829
....
.20-883
.435-437
257
807
18 Ill. 396……..
256
16 Minn. 210……….
847
.4 Martin N. S. 134......... 863
638
TABLE OF CASES.
.4 Bin. 258..
Dawes v. Cope
Dawson v. Holcomb..
Day v. McQuillan....
.1 Ohio, 277.
13 Minn. 205..
•
Day v. Newark L. R. Manuf. Co......1 Blatchf. 628:
Day v. Paupierre.....
Dayton v. Merritt.
Dean v. Bailey.
Dean v. Bell……….
Dean v. Campbell..
Deaver v. Keith..
De Barante v. Gott
Debow v. Colfax...
Debuys v. Yerbey..
De Camp v. Marshall.
Decker v. Mathews..
....
Deckerman v. Van Tyne..
De Haas v. Bunn.
Dejarnette v. Allen
Delaney v. Brett..
Delaware v. Ensign.
Delavan v. Pratt.
Den v. Steelman..
Denton v, Livingston
Denham v. Pogue..
De Nierth v. Sidner..
Dennis v. Table, &c. Co………
Dennistoun v. Hubbell…….
Denny v. Ward…….
Denny v. Warren...
Deuny v. White.....
Denny, in re..
···
Deposit Bank v. Wickham..
Despatch Line v. Bellamy M.
Devereux v. Barclay..
Devoe v. Brandt..
Dewart v. Clement.....
Dewey v. Fay...
Dewey v. Long.
Dewey v. Thrall..
Dewing v. Wentworth...
Dewy v. Field……….
Dezell v, Odell.....
Dheyer v. Hunt..
Dibble v. Gaston.
Dick v. Bailey..
··
...
•
..
··
..
··
T
·
··
19 Hun, 534...
•
...5 Ired. 374.
.6 Barb. 492……..
5 Halst. 128..
.1 Martin N. S. 880..
2 Abb. N. S. 873..
.12 N. Y. 813..
•
.13 Q. B. 802..
•
.23 Conn. 184..
··
..
•
58......
.12 Vt. 144.
.1 Law Bul. 42
4 Sand. 724..
•
2 Pa. St. 335...
..5 Gratt. 499……….
..1 Abb. N. S. 421...
21 Barb.
19 Iowa, 429..
.5 Halst. 19S....
···
...
•
....
.20 La. An. 193.
.23 How. 419..
..10 Cal. 869..
.10 Bosw. (N. Y.) 155.
.8 Pick. 199..
9 Johns. 96...
..
..
.16 Mass. 430..
.2 Cold. 283.......
2 Hill, 220 ...
•
.44 Howard, 421..
....
Co.....12 N. H. 205..
....
•
8
820
253
.2 Barn. & Ald. 702…………..54, 41
.53 N. Y. 402..
281
.48 Pa. St. 413……...
272
.84 Vt. 138...
434.
.25 Vt. 564...
.13 Vt. 281...
11 Cush. 499.
.4 Metc. 881……….
.3 Hill, 215......... 427,435,438
….2 Allen, 449……….
...
···
Page
274
840, 839
194
241
15
•·
439
433
460
406
853
296
235
185
274
54
819
298
297
463
256
330
286
442
860
871
228
187
447
446
818-809
.R. M. Charlton, 444.....
2 La. An. 974…………
•
255,290,293
277,440
349
439
239
363
431
TABLE OF CASES.
639
...
Dick v. Lindsay………..
Dickenson v. Cook...
Dickenson v. Phillips..
Dickerson v. Benham..
Dickman v. Williams.
Dieffenbarger v. Fisher...
Dillenback v. Jerome..
Dinan v. Allen....
Disbough v. Outcalt.
Disbrow v. Garcia..
Diver v. McLoughlin.
Divine v. Harvie…………
Dixon v. Hill..
Doack v. Brubaker..
Doane v. Doane...
Doane v. Eddy..
Dob v. Halsy..
Dodd v. Brott.
Dodds v. Johnson……….
Dolby v. Mullins.......
Dodge v. Porter..
Dolsen v. Brown..
Dolson v. Kerr...
Don v. Lippman..
Donelly v. Corbett..
Donham v. Wild....
Donnan v. Kane........
Donnell v. Jones..
Donnell v. Williams....
Dore v. Dawson.
Dorr v. Kershaw.
Dorsey v. Kyle.......
Doty v. Gorham........
Douer v. Stauffer.
Doughten v. Gray..
...2 Penn. R. 204.
..2 Stock, Ch. 823.
.2 Stock. 896...
Doughty v. King..
Douglass v. Forrest..
4 Bingham, 686..
Douglass v. Massie........ .........16 Ohio, 271.
Douglass v. Mayor of New York.....8 Duer, 110.
Douglass v. Winslow.
Dow v. Platner...
..20 Me. 89.
..16 N. Y. 562.
.......21 Vt. 599..
....
..
··
....
···
Downer v. Brackett...
Downer v. Curtis....
Downs v. Kissan…
Doyle v. Sleeper..
Tage
275
429
.... 863
.459, 460
245
.50 Miss. 500.....
..3 Grant's Cases, 830........ 852
7 Cow. 294...
434
893
290
890
273
848
454
272
827
273
..199, 209
366
2 Grant's Cases, 431…….
• •
.17 Johns, 332..
1 Barb. 454..........
12 Abb. 158........
•
..16 Hun, 407..
....Saxton, 298...
.52 N. Y. 654…….
.21 Vend. 596..
.7 Monr. 439..
··
...
..5 Mich. 404....
..1 Nev. 218..
.46 Vt. 485.
··
.16 Wend. 523…….
..16 Johns. R. 84....
..1 Minn. 270....
..8 S. C. 215...
221
.3 Humph. (Tenn.) 437...... 843
.13 Abb. 253..
427, 428
864
13 La. An. 551...
* 262
99
75
...435, 436
433
891
878
862
..5 Hun, 643......
•*
..5 Clark & Finn. 1......
.7 N. Y. 500; 18 N. Y. 468..
19 Pick. 520…….
….5 Allen, 88…….
13 Ala. 490...
.......21 Hun, 216..
6 Ala. 712..
18 La. 57…….
..80 Md. 512........
··
...........5 Pick. 487..
...
•
.25 Vt. 650....
…….10 How. (U. S.) 102………
‚1 Dana, 534……….
464
108, 123
248
199
246
259
12
299
108-112
... 194
264
188
352
256
254
•
640
! TABLE OF CASES.
Drake v. Brown..
Drano v. McGavock….
Dreutzer v. Bell.……….
Drew v. Livermore.
Dreyfus v. Otis....
......54 How. 405.....
Drown v. Smith….......…………………………….8 N. H. 441.......
Dubois v. Dubois…….
Dubois v. Kelly..
Duncan v. Guest..
Duncan v. Headley.....
....
Duncan v. Katen..
Duncan v. Wickliffe.
Dunham v. Murdock...
Dunham v. Waterman....
Dunkler v. Fales….
Dulanty v. Pynchon....
Dunham v. Whitehead..
Dunlap v. Edgerton....
Dunlap v. Hawkins...
Dunlap v. Patterson.........
Dunn v. Crocker...
Dunn v. Painter........
Dunn v. Rodgers.....
Dunn v. Salter........
Dunnica v. Coy.....
Dunning v. Humphrey..
Dutcher v. Swartwood.
Dutton v. Woodbury..
Dyson v. Shelley..
..
Eager v. Taylor…………….
Eastman v. Caswell..
Eastman v. Schettler.
68 Pa. St. 223...
.7 Hump. 132...………………………….
..11 Wis. 114.……………….
..40 Me. 266.... ...... 849-440
371
467
……..6 Cowen (N. Y.) 494...840, 838
..10 Barb. 496...
.248, 249
..2 Civ. Pro. R. 275.......... 899
..4 Bush (Ky.) 45.…………………………. 145
.64 N. Y. 625..
58
8
..4 Metc. (Ky.) 118..........
...........2 Wend. 555.......
.17 N. Y. 9..
201
262
420
829
5 N. H. 527..
...6 Allen, 510.....
..21 N. Y. 131..
.30 Vt. 224...
285
319
...2 8. C. (N. Y.) 292......... 259
190
463
298
453
142
298
........24 Wend. 81........889, 891, 892
.15 Hun, 81...
256
829
.24 Iowa, 74...
.11 Mich. 527.......... 828-825
74 N. Y. 145.
.22 Ind. 824....
•
27 Pa. St. 148…….
.43 Ill. 200....
..1 Duv. (Ky.) 842..
24 Mo. 167....
...
9 Allen, 156……….
...8 How. 75..
13 Wis. 824.
..7 Daly, 147...
..8 Pick. 484..
··
Page
293
841
827
818
818
253
Easton v. Malavaz
157
243
Eaton v. Whiting.
Ebner v.
Bradford.
....3 Abb. Pr. (U. S.) 248...... 69
Eddie v. Davidson.......………………………… ..Douglass, 650.………………………. .192, 202
Eddy v. Heath..
.81 Mo. 141....
853
Edgerton v. Third Municipality of New
...
..
….1 La. An. 435..
•
.14 Minn. 228....
Orleans...
237
259
Edson y. Newell….
Edwards v. Turner....
.6 Rob. (La.) 882............ 892
Eighth National Bank v. Fitch.......49 N. Y. 539............. 247
Einstein v. Chapman.
.10 J. & Sp. 144..
277
C
TABLE OF CASES.
641
Eldridge v. Smith....
Elias v. Farley..
Elias v. Verdugo..
Ellicott v. Smith..
Elliot v. Jackson..
Elliott v. Flanigan.
Ellis v. Ward……….
Ellsworth v. Scott...
··
Elnure v. Harris...
Elston v. Robinson
Elwes v. Mawe …….
Ely v. Cornley.
Ely v. Ehle
Emerson v. Uptown..
Emeric v. Gilman..
Enos v. Tuttle..
··
Eusworth v. King.
Erwin v. C. & R. R. Bank..
Estill v. Goodloe..
Etten v. Currier..
Evans v. Hill....
Evans v. Saul...
Evans v. Warner...
Evans v. Wilder......
Everett v. Herrin.....
Ewing v. Hatfield.
Excelsior Fork Co. v. Lukens.....
Eyepert v. Bolenius.....
··
··
..
•
•
84 Vt. 484...
•
.8 Keyes (N.Y.) 898.262, 406, 408
27 Cal. 418..
827
.2 Cranch (C. C.) 543....... 860
8 Wis. 649..
52
87 Pa. St. 425..
.7 S. & M. 651..
.3 Abb. N. C. 9.
13 Ala. 860……….
•
··
•
•
·
.23 Iowa, 208...
.8 East, 88……….
.19 N. Y. 496..
•
..
.3 N. Y. 506....
..
9 Pick. 167..
10 Cal. 404……….
..3 Conn. 27...
..
.....50 Mo. 417.
Fairbanks v. Bloomfield.
Fairbanks v. Phelps.
Fairfield v. Baldwin.
Fairfield v. Paine....
Fairis v. Walker…….
Falconer v. Freeman.
Falkner v. Leith..
Fanning v. Consequa..
Farmers' Bank v. Beaston.
Farmers' Bank v. Cowan..
Farmers' and Mechanics' Bank v. Lit-
...
...
...
.48 Me. 537.
17 Ind. 513..
.88 Ind. 438...
..2 Abb. N. C. 193....
...
10 Ala. 700...
6 La. An. 122..
...3 Keys, 829...
860
297
.18 Hun, 464..
458
8 Martin N. 8. (La.) 247... 140
24 Hun, 574...
..168-871
..5 Mo. 813..
tle....
Farmers' & Mechanics' National Bank
v. King....
Farnham v. Gilman………
Farnsworth v. Shephard..
•
..
•
•
.57 Pa. St. 202..
..24 Me. 250....
6 Vt. 521...
Page
293
...
5 Duer, 349...
O
22 Pick. 535..
12 Pick. 888..
446
.23 Me. 498...
453
1 Bailey, 541....
250
...4 Sandf. Ch. 565.
454
.15 Ala. 9...
286
98
.17 Johns. R. 511...
...7 Gill & J. 421.....841, 340, 849
.2 Keyes, 217..
242
809
290
468
290
823
247
258
53
458
236
.866, 261
406
892
287
402
284
8
57
.8 Watts & Sergeant (Pa.) 187, 207
..
242, 278, 839
242
837
435
277
41
642
TABLE OF CASES.
Farra v. Quigly..
Farrar v. Chauffetete.
Farrell v. Higley.
Farrell v. Hildreth.
Farrington v. Caswell.
Faulkner, in re.
Faulkner v. Waters..
Faunce v. Lesley.
Favers v. Glass.
Fawcett v. Vary.
Faxon v. Mansfield..
Fechheimer v. Hays.
Felton v. Wadsworth..
Fellows v. Miller.....
Ferguson v. Lee.
Ferguson v. Union Furnace Co.......9 Wend. 845.
Ferris v. Ferris.
11 Ind. 478..
.7 Cush. 587
.8 Blackf. 231..
.9 Wend. 258.
··
Field v.
142
238
134
849
238
272
289
141
.44 Ind. 266...
Field v. Adames..
Field v. Adreon.
Field v. Jones.
Field v. Lawson.
Field v. Strong..
Figg v. Snook…..
Filley v. Phelps.
Finlay v. American Exchange Bank..11 How. Pr. 468..... ..... 863
Finley v. Sly.
Finnin v. Malloy
First National Bank v. Colby.
Fisher v. Bartlett..
Fisher v. Consequa.
Fisher v. Gordon
Fisher v. Vose........
Fisk v. Herrick..
Fisk v. Spring..
Fitch v. Rogers..
Fitch v. Ross....
Fitch v. Waite
303
...1 Jones & Spencer, 382..809, 815
...46 Ala. 435...
...
8 Me. 122..
89, 221
439
.2 Wash. C. C. (Pa.) 382...42, 66
.8 Mo. 886....
402
··
....
....
··
...
··
..
··
•
•
•
...
...
Fitzgerald, in re……
Fitzgerald v. Belden...
Fitzgerald v. Blake....
Fitzgerald v. Brown..
..57 Mo. 284……….
.5 Den. 537....
Lalor, 87...
....88 Barb. 178
...
•
•
4 Hill, 598...
11 Pick. 473
.6 Pa. St. 121
.22 Ala. 621...
··
•
15 Johns. 430..
……..59 N. Y. 597..
2 Mass. R. 147..
•
•
· ·
....
•
.. ...
25 Vt. 100..
.4 Vesey.
.12 Adol. & El. 649.
7 Md. 209…….
11 Ga. 413...
..
...
•
5 Pike, 876....
•
.18 Conn. 296.
··
.2 Eng. (Ark.) 269
9 Ind. 202.
..8 Rob. (La.) 457...
6 Mass. R. 271...
•
.25 Hun, 367.…….
•
··
Page
820
248
822
242
276
172
347, 852
262
814
··
Fitchett v. Dolbee...
..8 Har. (Del.) 267……….
Fithian v. N. Y. & Erie R. R. Co....81 Pa. St. 114.
..2 Caines, 818..
.49 How. 225.,.
28 How. 109...
4 Cal. 289……..
...
•
...7 Vt. 403...
428
4 Serg. & Rawle, 557.... 189
….5 Conn. 117…….135, 141, 143, 833,
406
373
29
3
446
386
243
280
84
...
189
206, 358
420
…………………
848
.856, 836
140
376
428
279.
TABLE OF CASES.
643
Fitzherbert v. Shaw..
Flanagan v. Wood...
Fleming v. Bailey.
Floyd v. Blake………….
Floyd v. Blake........
Floyd v. Hamilton.
Floyd v. Mosier...
Fogg v. Fogg..
Foley v. Bitter..
Folger v. Bowles..
Fonda v. Gross...
Fontaine v. Beers....
....
•
...
··
···
··
··
....
...
Foote v. Cobb…….
Foote v. Calvin.
Force v. Gower..
Ford v. Belmont..
Ford v. Chalmers..
Ford v. Cobb.......
Ford v. Hurd.......
Ford v. Johnson.
Ford v. Williams..
Ford v. Williams.
Ford v. Woodward...
Fordred v. Seamen's Savings Bank...10 Abb. N. 8. 425
Foreman v. Carter...
9 Kas. 674.....
Forkner v. Stuart..
Fortune v. St. Louis
Foster's Case....
Foster v. Dudley..
Foster v. Jones..
Foster v. Jones.....
Foster v. McGregor.
Foster v. Porter.
Foulks v. Pegg.
Fowler v. Bishop.
Fowler v. Le Pau..
Fowler v. Prebein.......
Fox v. Hanbury..
Frank v. Harrington.
Frankel v. Stern....
...
·.·
...1 H. BL. 258..
83 Vt. 832.
44 Miss. 132...
11 Abb. Pr. 849..
•
●
Frankenheimer v. Slocum.
Franklin Bank v. Batchelder..
.19 How. (N. Y.) 542………
83 Ala. 622…..
•
.1 Iowa, 512...
.40 N. H. 282.
..84 Md. 646…….
•
··
..
72 N. C. 803.....
•
.15 Wend. 628..
19 Ala. 722....
18 Ala. 586..
.8 Johns. 216
.23 How. 294...
287
448
.7 Rob. 97...
295
•
28 Cal. 13……..
279
.20 N. Y. 844...
248
··
.4 Sm. & M. (Miss.) 683..20, 383
.34 Barb. 364……….
.24 N. Y. 859.
..13 N. Y. 577..
... 811
256
257
.4 Sm. & M. (Miss.) 683..... 383
864
124
...
272
848
188
...10 Foster, 463...
855
.1 McCord (8. C.) 116....... 855
15 Mass. 185..
355
254
242
.11 Vt. 595.....
.87 Mo. 525..
...6 Nev. 136.........
.....81 Conn. 560...
427
434
296
.26 Barb. 274...
..16 Ohio St. 493………..253, 294, 297
Cowp. 445, 449.
.86 Barb. 415..
.44 Cal. 168...
207
.235, 251
391
8
..24 Ala. 373…….
.23 Me. 60..
188
Franklin v. Coffee....
.18 Tex. 413..
.828, 324
Franklin v. Ward……….
..3 Mason, 136...
355
Franklin Fire Ins. Co. v. West.......5 W. & S. 850…………………………….. 853
..
··
...
…….6 Gratt. (Va.) 197..
.22 Mo. 239...
.2 Story C. C. 131....
Page
247
429
392
21
.35, 2
392
305
824
253
291
276
287
260
··
$
644
TABLE OF CASES.
Fraser v. Greenhill.
Frazier v. Barnum
Frazier v. Truax..
Freeby v. Tupper.
Freel, ex parte.....
Freeland v. Southworth...
Freeman v. Cruch..
Freeman v. Carhart
Freeman v. Howe...
Freeman v. Rawson...
Freidlander v. Pollock.
French v. Hall.
French v. Mehan.
French v. Stanley.
Fretz v. Heller
Frink v. Potter...
Frisbee v. Langworthy.
Frost v. Brisbin...
•
...
•
...
Frost v. Dougal..
Frost v. Mott...
Frost v. Reynolds.
Frost v. Shaw……….
Frost v. White.
Frost v. Willard…
Frothingham v. Haley.
Fullam v. Stearns.
Fuller v. Bryan.
Fuller v. Duren.
Fuller v. Jewett,
Fullerton v. Mack...
Fulweiler v. Hughes.
Funk v. McReynold.
Funk v. Staats...
Funkhouser v. How…….
Furman v. Walter......
··
•
··
··
Gage v. Dauchy...
Galloway, Matter of………
Gamble v. Reynolds..
Gurbette v. Veale………
Gardiner v. Smith...
Gardinier v. Tubbs..
Gardner v. Finley.
Gardner v. Howland………
...
•
3 Code R. 172..
•
..
19 N. J. Eq. 316…………
27 Hun, 587...
15 Ohio, 467..
.55 How. 386...
··
· ·
··
··
•
...
24 Wend. 191.
..112 Mass. 180...
.17 Geo. 348
..24 How. U. S. 450..
.5 Ohio St. 1.....
•
.5 Colw. (Tenn.) 490........
9 N. H. 137...
•
.56 Penn. St. 286.
..21 Me. 512....
..442-446
..2 Watts & Serg, (Pa.) 397.. 840
17 Ill. 406.…….
50
.11 Wis. 375..
838
19 Wend. 11..126, 127, 108, 112
·
115
401
.1 Day, 128..
..
34 N. Y. 253…….
………
..4 Ired. Eq. 494..
.3 Ohio St. 270……….
….14 La. An. 140………
9 Barb. 440.
.3 Mass. 68……….
30 Vt. 443...
•
...20 Pa. St. 144.
.36 Ala. 73...
.87 Vt. 473...
…..2 Aik. 415………
.17 Pa. St. 440.
··
···
83 Ill. 481....
..24 Ill. 632..
.......24 Mo. 44....
..
34 N. Y. 293…….
21 Wend. 82..
..42 Ala. 236...
……..5 Q. B. (Eng.) 408.
Page
21
•
820
263
289
809
464
275
852
248, 249
20
52
833
408
851
287
277
862
13 How. 348......8, 21, 867, 459
288
868
249
446
453
839
257
155
277
280
..417-454
297
187
809
191
12 Lou. R. (Curry), 870……….. 206
...21 Wend. 169..
276
248
19 Barb. 817...
.2 Pick. 599...
274
TABLE OF CASES.
645
Gardner v. McEwen....
Garfield v. Hatmaker.
Garret v. Rhame...
Garro v. Thompson.
Garvin v. Paul……….
Gusherie v. Apple….
Gasquet v. Johnson.
Gates v. Kerby.
Gay v. Bidwell...
Geary v. Page.
Geary v. Shepard..
Gelbaar v. Ross.
Gennin v. Tompkins.
Gentry v. Harper.
George v. Norris..
George v. Williamson..
Gere v. Gundlach……….
Getchell v. Chase..
Getzler v. Saroni..
Gibbs v. Chase..
Gibbs v. Conine.
Gibbs v. Queen Ins. Co.…….
Gibson v. Cooke...
Gibson v. Haggerty..
Gibson v. McLaughlin..
Gibson v. Stevens...
Gies v. Bechtner..
Gillet v. Crandall……….
Gillet v. Fairchild.
Gillis v. Brown..
...
••
··
...
... •
··
...
··
....
...
··
...
··
•
19 N. Y. 123……….
15 N. Y. 475
9 Rich. 407……….
.7 Watts, 416………….
..47 N. H. 158...
..
•
•
•
•
.2 La. 514..
..13 Mo. 157.
.7 Mich. 519..
9 Bos. 290...
1 Root (Conn.) 544…………
..1 Hilt. 117....
•
14 Abb. 64....
.12 Barb. 265...
.....2 Jones Eq. 177..
...23 Ark. 128...
..26 Mo. 190……..
..57 Barb. 13……….
.37 N. H. 106...
...18 Ill. 511..
···
........63 N. Y. 114
Gilman v. Contra Costa County.......8 Cal. 52..
Gilman v. Hill
Gilmore v. Crowell...
Gilmore v. Moore...
Gilmore v. McNeil..
Gilmore v. The North American Land
Co....
Gilman v. Williams.....
Gimell v. Adams…..
Ginther v. Richmond.
Girard Fire Ins. Co. v. Field.
Gittany y. Baker....
Glanton v. Griggs..
Glass v. Ellison..
Glassner v. Wheaton....
...
.10 Mass. 128..
2 Johns. R. 280.
•
··
.20 Pick. 15……….
...15 Abb. Pr. 406..
..1 Browne, 291....
7 N. H. Rep. 357...
12 Minn. 279....
•
.84 Vt. 188...
..4 Denio, 80……..
....5 Cow. 888.
··
.86 N. H. 311,..
.67 Barb. 62…….
30 Geo. 628………….
..46 Me. 532…….
D
..2 Bulst. 53…..
5 Ga. 424..
...
Page
.. 280
255-293
255
293
247
163-170
246
862
258
864
145,182
293
272
294
21
858
294
..
407
197
448
864
362
189
198
854
435
98
297
236-237
*. 403
464
433
487
840
243
1 Peters' C. C. R. 460, 465.. 201
7 Wis. 829...
809
11 Humph. (Tenn.) 283. 262
•
.18 Hun, 282..
264
.45 Pa. St. 129...
853
81
852
9 N. H. 69…..
243
.2 E. D. Smith, 85………………………. 244
...
·
646
TABLE OF CASES.
Glen Cove Man'f'g Co. v. Godhold....1 Civ. Pro. R. 366..
.18 Ala. 867...
•
Glover v. Glover..
Godard v. Gould..
Godchaux v. Mulford.
Godden v. Pierson..
Godfrey v. Godfrey
Gold v. Housatonic R. R. Co………….
...
....
··
...
Goldman v. Clark……
Goldsborough v. Orr..
Goldsmith v. Levy.
Goll v. Hinton..
Good v. Fogg.
Goodenow v. Snyder..
Goodrich v. Church.
Goodrich v. Downs..
Goodwin v. Anderson..
Goodwin v. Goodwin..
Googins v. Gilmore.
Gore v. Clisby..
Gorham v. Wing..
Gorman v. Russell...
Gormerly v. Chapman.
Gorton v. Falkner.
Goss v. Gowing.....
Gouverneur v. Warner.
Gould v. Bowne..
Gould v. Bryan..
Gower v. Stevens.....
Graff v. Fitch...
Graham v. Bradbury..
Graham v. Crockett....
Graham v. McCreary.
Graham v. Moore....
Graham v. Moore...
Graham v. Trimmer.
Grain v. Aldrich..
Graves v. Roy..
Grant v. Chapman..
Grant v. Shaw..
Grattan v. Cottingham.
Gray v. Farris...
Gray v. Giles...
Gray v. Griffith.
Gray v. Henby..
Gray v. Maxwell.
··
..
·
....
•
..
...
•
•
•
•
•
•
··
14 Barb. 662..
.26 Cal. 317...
.42 Ala. 870...
.75 N. Y. 434
1 Gray, 424.
.1 Nev. 607..
·
··
··
•
• ·
350
464
435
323
64
106
.8 Abb. (N. Y.) 122..192, 193, 229
61 Ill. 449……..
811
··
...
8 Wheat. (U. S.) 227…….
.4 Taunt. 299....
6 Hill, 438...
•
.5 S. & M. 780..
·
3 Iowa, 599...
20 Vt. 187...
.K. B. (10 Anne)..
.47 Me. 9..
.8 Pick. 555.
..10 Mich. 486……
298
339
262
290
81
258
833
.298, 294
222
253
238
141
349
.4 N. Y. Leg. Obs. 423..... 258
.8 Bosw. 626…….
894
··
... 18 Cal. 688..
.51 Ga. 425...
.4 Term R. 565..
• •
..... 5 Richardson, 477..
.2 Sandf. 624..
··
...19 Me. 92…….
.56 Ill. 373……..
7 Mo. 281...
.18 Ind. 119..
...
··
..
.40 Pa. St. 515…….
.5 Harring. 818
·
7 B. Monr. 53…….
6 Kas. 230.
.88 Cal. 520.
......18 La. 454..
.88 N. Y. 298..
18 Mass. 844…………
•
122
.250, 248
279
•
.4 Bingham, 686......
.7 Yerg. 155.…………………
.2 Law Bul. 12..
..
•
182
.804, 206
277
298
858
108 124
859
... 261
264
.244, 332
74
258
387
52
10 Watts (Pa.) 431….
…………….1 8. & M. (Miss.) 598...... 856
.50 Ga. 108.……….
839
··
Page
413
•
*
429, 430
251
··
TABLE OF CASES.
647
•
Gray v. St. John…….
Greathouse v. Brown..
....
Page
32 III. 130; 35 Id. 222.... 157
.5 Monr. 280...
275
.8 Abb. 64.....
.......111, 112
.1 Taunton, 485………
.9, 106
•
.1 Den. 550....
250
Greaton v. Morgan..
Greaves v. Stokes..
Green v. Armstrong..
Green v. Branch Bank..
Green v. Beckwith.....
Green v. Burk..
.33 Ala. 643..
262
88 Mo. 384.
121
23 Wend. 490...
407
.6 N. H. 572..
336
Green v. Doughty...
Green v. Farmers' and Citizens' Bank..25 Conn. 452…….
Greene v. Greene...
335
.11 Pick. (Mass.) 441....... 117
Green v. Shaver
•
3 Humphreys (Tenn.) 189.. 159
.3 Md. 11....
262
.42 Barb. 594..418, 393, 410, 455
.50 Barb. 543.…………..254, 255, 417
44 N. H. 16..
321
.2 Cent. L. J. 861...
325.
.34 N. Y. Super .Ct. 505.266, 367
...61 N. Y. 583..
411-410
Green v. Trammel..
Greenleaf v. Mumford.
Greenleaf v. Mumford.
Greeleaf v. Sanborn..
Greeley v. Scott....
Greentree v. Rosenstock..
Greentree v. Rosenstock..
Greer v. Powell.
Greenwich Bank v. Loomis
Gregg v. Bostwick..
Gregg v. Wilson....
Gregory v. Weiner.....
Gresham v. Walker.......
Gridley v. Harraden....
Griffen v. Sutherland...
Griffin v. Spencer..
Griffin v. Sutherland
Griffith v. Treutlen...
Grimes v. Bryne.
Griswold v. Sharp.
Griswold, Matter of..
Griswold v. Sheldon..
Groat v. Gillespie..
Grogan v. Cooke...
Grosvenor v. Mech. Bank.
Grove v. Howard...
Grover v. Wakeman.
...
..
N
··
··
...
....
..
..
Guilhon v. Lindo.
Guillory v. Deville....
Guinard v. Aldrich…
•••
·
•
·
·
•
•
•
··
13 Barb. 312…….
…..4 N. Y. 581………….
..25 Wend. 883………….
......2 Ball & B. 233........
...18 Conn. 104.
...
51 Me. 546
........11 Wend. 187....
......5 Cold. 160.
Grubbs v. Greer……….
..
Guggenheim v. Charter Oak L. Ins. Co.1 Law Bull. 51.
Guild v. Holbrook….……….
11 Pick. 101....
..9 Bosw. 601……..
..
···
•
•
....
1 Bush (Ky.) 489..
261
288.
.2 Sandf. Ch. 270....
.83 Cal. 227........323, 826, 825
...8 Phil. 91....
408
...1 Code R. N. S. 210........ 894
..10 Ala. 370
809
.14 Mass. 496..
854
14 Barb. 456…….
6 Hill, 525..
•
14 Wend. 456...
•
..48 Ga. 148...
..2 Minn. 104....
.2 Cal. 17……….
21 La. Ann. 886…..
10 Rich. Eq. 253.
•
•
..
..
...
•
303
.290, 285
804
807
815
346
859
256, 272
.889, 891
238
333.
452
263.
280.
240
852
69.
812
275
648
TABLE OF CASES.
Guiod v. Guiod.
Gunn v. Barry.
Gunn v. Gudehus
•
•
..
·
Gurney v. Hardenberg....
Guthrie v. Gardner..
Hadden v. Spader......
Hagaman v. Jackson..
Haggart v. Morgan...
2.
·
··
14 Cal. 506....
15 Wall. 610.
•
.15 B. Monr. 447...
........1 Taunton, 487......
..19 Wend. 414..
..20 Johns. 554………….
.1 Wend. 502..
...
Haggerty v. Wilber.
Haight v. Bergh.
Hairston v. Hairston...
Halbert v. Stinson...
Hale v. Bentley,
Hale v. Chandler..
Hale v. Sweet...
Hall v. Brooks.......
Hall v. Buffalo.......
Hall v. Heffly...
Hall v. Heydon....
Hall v. Magee.
Hall v. Page.
Hall v. Parsons..
Hall v. Sampson..
Hall v. Sands…..,
Hall v. Shultz..
Hall v. Stryker,,
Hall v. Tuttle.....
Hall v. Walbridge...
Halliday v. Noble…………
Hallock v. Belcher..
Halowell v. Page.
Halstead v. Gordon……….
Hamilton v. Cone......
Hamilton v. Franklin..
Hamilton v. Pinney..
Hammond v. Eaton...
Hammond v. Webb,..
Handyv, Dobbin..
Hancock v, Morgan....
Hancock Mut. Life Ins. Co. v. Moore..13 Mich. 42....………………………..
.........11 Martin (La.) 276………………..
........21.Wend. (N. Y.) 90.
242
800
.1 Selden (N. Y.) 423...100, 111,
112, 126, 124, 463
..16 Jobn, 287..
401
3 Green (N. J.) 183........ 185
.27 Miss. 704....
.122, 114
6 Blackf. (Ind.) 398........ 356
....21 Vt 147..
234
22, 20
258
▸▸
. 3 Mich. 531……..
..40 N. Y. 97.
...2 N. Y. Civ. Pro. R. 198... 418
...2 Abb. Dec. 801...
863
286
253
850
24
279
242
253
284
454
284, 280
428
185
889
453
264
.6 Humph. (Tenn.) 444..
.41 Ala. 242……….
.27 Ala. 414.....
.4 Ga. 428…….
.15 Vt. 858..
..85 N. Y. 274...
52 Me. 855...
.4 Johns. 240……..
.27 N. Y. 596…….
...8 Wend. 375..
..2 Aik. 215..
..1 Barb. 137
.42 Barb. 199…….
.24 Mo. 590....
.84 Barb. 422...
.99 Mass. 478………….
14 Cranch C. C. 729..
29 Hun, 265……….
.....15 Gray, 186.
··
Page
312
830
303
9-105
293
...
..Lucas, 281...………………….
....12 Johns. 220...
…..17 Tex. 582…….
.....
Hanna v. Loring..
Hanna▼, Millą… … …..
Harbison v, McCartney.....1 Grant (Pa.) 172…………
..
255
.70, 272
421
453
81
..230, 229
824
52
34
80
839***
TABLE OF CASES.
649
Harding v. Alden.
Hardman v. Bowen...
Page
117
270
Hardy v. De Leon……
5 Texas, 211..
123
807
251
203
Harley v. Charleston Steam Pucket Co.2 Miles (Pa.) 249………….89, 90, 241
Hurley v. Davis...
Harris v. Frink..
Harris v. Murray..
Harris v. Taylor.
Harrison v. Hollis..
Harrison v. Kramer.
Harrison v. Mahorner.
Harrison v. Martin..
464
293
Harrison v. Renfro.....
Harrow v. Lyon
Harmon v. Moore...
....
--
·❤»
··
...
··
Hassell v. Southern Bank..
Hart v. Anthony
Hart v. Carpenter.
Hart v. Dubois
Hart v. F. & M. Bank..
Harteau v. Harteau
Harthouse v. Rikers..
Hartleib v. McLane..
Hartman v. Proudfit..
Hartman v. Vogel…
Hartshorn v. Ives...
Hartwell v. Bissell...
Hartwell v. Fitts..
Harvard College v. Gore..
Harvey v. Steptoe....
Haskill v. Andro...
Hassie v. G. L. W. U. C……………………..
Hastings v. Belknap..
Haswell v. Parsons......
Hatch v. Bayley
Hatch v. Lincoln……
9 Greenleaf, 140…….
..89 N. Y. 198...
Hathaway v. Brayman.........
Hathaway v. Davis
Hathaway v. Johnson....
Hathaway v. Larrabee..
Hathorn v. Hodges.
Haughton v. Eustis..
Hausfelt v. Vilmar….
Haven v. Low,
Haven v. Snow.
···
·· ·
49 N. Y. 24….
28 N. Y. 574..
8 Sneed, 536...
•
.2 N. & McC. 578..
··
16 Minn. 487..
8 Iowa, 543..
.14 Ala. 829..
.7 Mo. 286..
293
185
315
189
458
...
.237, 440
230
835
216
402
272
14 Pick. (Mass.) 187……………….. 117
…….1 Duer, 606...
.......44 Pa. St. 510...
812-814
...
13 Mo. 446…….
3 G. Greene, 157………
..59 Me. 428..
...
•
.2 Hend, 284..
..15 Pick. 445..
...
.24 Conn. 427..
20 Wend. 236..
33 Vt. 252..
.
..
…..6 Bosw. (N. Y.) 491……
.40 Mo. 570
.4 R. L. 471....
.17 Johns. 128.
..20 Ga. 723...
.5 Pick. (Mass.) 870....
.17 Gratt. 289......
··
..4 Vt. 609...
85 Cal. 385..
.1 Den, 190...
13 Cal, 266……..
•
•
5 Law Reporter, 505...
..
…………………..11 J. & Sp. 574.
2 N, H, 13..
14 Pick, 28
473
81
280
434
251, 128
287
121
259
808
850
86
...
319
ALL
245
...12 Cushing, 27......
.......18 Cushing, 81......……………. 245
242
...42 N. Y. 822.
..83 Cal. 161..
84
55 N. Y. 93..
147
.27 Me. 449...
405
28 N. Y. 486..
280
•
188
260
244
453
..
..
650
TABLE OF CASES.
Haviland v. Wehle..
Havis v. Taylor...
Hawes v. Speer.
Hawkins v. Pearce..
Hawley.v. Ross.....
Hawthorn v. Bronson.
Hawthorne v. Smith.
...
··
....
··
-
- Hayden v. Sample..
Haydock v. Coope
Haynes, in re..
Hazard v. Franklin
Hazard v. Jordan......
Heard v. Fairbanks.
Hearne v. Crutcher..
...
... ►
•
Heath v. Keyes.
Heffner v. Reed...
Hemmenway v. Pratt..
Hemmenway v. Wheeler..
Henderson v. Downing.
Henderson v. Drace...
Henderson v. Hay...
Henderson v. Henderson..
Henderson v. Thornton...
Hendricks v. Robinson..
Hennequin v. Naylor...
Henry v. Cawthorne..
Henry v. Mitchell...
Hensley v. Morgan..
Henson v. Edwards..
Hernstein v. Matthewson.
Hergman v. Dettleback...
Herkimer Bank v. Brown....
Herrick v. Graves..
··
Herring v. Hoppock
Hester v. Wilkinson..
Heyden v. Heyden..
Heye v. Bolles...
Heye v. Bolles
··
..
.11 Abb. N. S. 447.......
..13 Ala. 324....
.23 Vt. 508....
11 Humph. 44....
7 Paige, 103...
.16 S. &. R. 269..
•
·
8 Nev. 182....
•
10 Mo. 215
..53 N. Y. 68..
•
•
•
•
●
12 Ala. 180...
·
.5 Metcalf, 111.
..4 Yerg. 461..
..85 Wis. 668.....
..8 Grant's Cas. 245..
.23 Vt. 832....
.14 Pick. 411......
..24 Miss. 106...
18 Wend. 611…….
2 Ala. 849.....
•
•
...
..
· ·
.30 Mo. 358……….
.26 La. An. 156....
.5 How. (N. Y.) 196…….
.11 How. 46
.. ··
6 Hill, 232…….
.16 Wis. 153….
•
827
...
.1 Crunch (U. 8. C. C.) 469.. 185
87 Miss. 448.....
27
.2 Johns. Ch. 283....242,241,289
.24 N. Y. 139…..
.4 Heiskell (Tenn.) 194……
•
.82 Mo. 512..
..47 Cal. 622...
.10 Ired. 43.
··
8 Duer, 20...
•
..
.6 Humph. 215..
..
•
Page
398
135
.1 Salk. 892..
•
.83 How. 266
••
2 Daly, 231; S. C., 33 How.
Pr. 266...
.2 Dill. 551....
14 Pa. St. 418....
440
803
864
287
311
892
262
871
349
65
234
837
319
458
853
430
262
887
281
96
406
189
809
85
283
444
829
245
259
.192,196
268
815
888
182
258
Hezekiah, in ro.......
Hibbs v. Blair...
Hibernia Nat. Bank v. Lacombe......84 N. Y. 367..
Hickman v. Perrin......
6 Cold. 135...
Hickox. Fay.....
.86 Barb. 9....
...805-307
Higgins v. Healey……………………………………………….47 N. Y. Supr. Ct. 207..468-467
TABLE OF CASES.
651
Hildreth v. Sands.
Hill v. Beach...
Hill v. Bond…
Hill v. Cunningham.
Hill v. Kessler..
Hill v. Keyes..
Hill v. Kroft..
...
···
• O
•
Hill v. La Crosse, &c. R. R. Co…………….
Hill v. Loomis..
Hill v. Wentworth.
Hiller v. B. & M. R. R. Co.....
Hinckley v. Bridgeman..
Hinman v. Borden…..
Hirsch v. Hutchison..
Hitchcock v. Covil..
Hitchcock v. Peterson..
Hoagland v. Stodolla.
Hobart v. Frisbie...
Hochester v. De Latour..
Hodges v. Holeman.
Hodgkins ▼. Hook…...
Hodskin v. Cox....
Hoffman v. Mackall...
Hoggett v. Emerson.
Hoitt v. Webb…………
Holbrook v. Baker..
Holbrook v. Basset..
Holbrook v. Hyde.
Holden v. Pinney...
Holladay v. Frisbie.......
Hollister v. Goodale...
Holmes v. Barclay.
Holmes v. Clark...
Holmes v. Penney.
Holmes v. Tremper.
Hood's Estate..
Hooker v. Smith..
Hooper v. Hills. . . . .
Hopkins v. Hopkins...
Hopkins v. Ray..
Hopkins v. Stump.
Horn v. Bayard..
Horne v. Horne.......
Hornell v. Young.
Hoskins v. Johnson..
...
...
...
●
...
• •
...
··
·····
..
.2 Johns. Ch. 85....
..1 Beas. 81..
.22 How. 272.......
25 Tex. 25.…….
.63 N. C. 437
.10 Allen, 258……….
.29 Pa. St. 186.......
841
..871, 869
453
880
189
261
840
.6 N. H. 263.
303, 321
..
28 Vt. 428..
249
..70 N. Y. 223.
98
434
.46 Me. 450....
.10 Wend. 367……….. .401, 402
..8 N. Y. Civ. Pro. Rep. 106.. 164
.20 Wend. 167..
280
147
413
242
25
202
272
437
261
124
.823, 825
244
283
403
823
236
1
85
254
259
250
..108, 128
408
866
296
834
293
391
123
96
857
••
14 Wis. 291....
•
...
··
··
.14 Hun, 889...
1 Code R. N. S. 210.
5 Conn. 592...
...20 Eng. L. & Eq. 157......
.1 Dana, 50, 58........
··
.23 Cal. 581....
7 Cush. 471
5 Ohio, 85…….
•
.8 Kas. 262...
..86 N. H. 158.
...5 Maine, 309..
..5 Bos. 147….
...1 Vt. 286..
.6 Cal. 234.
··
··
••
...
15 Cal. 630...
8 Conn. 332...
4 La. An. 63..
...48 Barb. 237..
..8 K. & J. 90,..
.20 Johns. 29 ...
21 Pa. St. 106…….
...19 Vt. 152
..9 Pick. 435...
..1 Hun, 852...
1 Met. 79....
..2 H. & J. 801..
..11 Rob. (La.) 259.
9 Ired. (N. C.) 99
.5 B. & C. 259...
.24 Ga. 625.
·
··
• ...
●
...
Tage
294
652
TABLE OF CASES.
....
...
Hoskins v. Matthews..
Hotchkiss v. McVickar..
Hotchkiss v. Platt…….
Hotop v. Neidig.
Hough v. Kugler.
Houghton v. Ault..
House v. Hamilton..
Houston v. Jordan…………
..35 Me. 520...
Hovey v. Rubber Tip Pencil Co......50 N. Y. 335..
How v. Taylor…………
Howard v. Card..
...52 Mo. 592..
Howard v. Daniels.
.6 Me. 953....
…..2 N. H. 137..
...2 Pick. 83...
Howard National Bank v. King.....4 Law Bul. 84.
Howard v. Williams...
Howe v. Adams………
Howe v. Bishop.
Howe v. Ward….
Howell v. Elliott........
Howland v. Fuller..
Howland v. Willett..
Hoxie v. Carr..
Hoy v. Brown..
Hoyle v. P. & M. R. R……….
Hoyt v. Godfrey
Hoyt v. Hudson..
Hoyt v. Shelden. .
Hoyt v. Swift……
Hoyt v. Van. Alstyne...
Hubbard v. Williams......
Hubbell v. Canaday.
Hubbard v. Williams,
Hucheson v. Ross...
Hudson v. Hunt.
Hudson v. Plets..
Hudson v. Warner..
Huff v. Mills...
Hugg v. Booth..
Hughes v. Brooks...
Hughes v. Corey..
Hughes v. Monty..
Hulett v. Soullard.....
Hull v. Carnley...
…………….11 N. Y. 501.............. 248
Humphreys v. Humphreys.....…………….1 Yeates, 427.......…………………… 298
Humphreys v. Matthews....…………………….11 Ill. 471….
Humphrey v. Persons..............23 Barb. 813 76,89
36 Texas, 379..
.20 Iowa, 899........... 258-333
261
„24 Iowa, 499..
…..26 Vt. 295.
287
64
10 * + 2300 ! P
··
··
•
...
•
...
•
...
...
....
Page
…..35 Eng. Law & Eq. 532..... 122
.....12 Johns. 403...
427
8 Hun, 46....
890
17 Abb. Pr. 832..
267
36 Md. 186…….
64, 85
….16 How. Pr. 77,21,100.2, 111,1
43 Ill. 185.
112
143
289
890
214
332
405
454
815
828
255
254
272
309
242, 243
201
65
.248, 249
266
434
283
350
812
…………
•
28 Vt. 544.........
..8 Met. 28.
.4 Me. 195..
....1 Dev. (N. C.) 76..
...
··
•
8 Sandf. 607...
.....1 Sumner, 181.
…….1 Harrison, 157,
.51 Barb. 45.
88 N. Y. 669.
12 Johns. 207...
3 Bos. 267..
·
13 Vt. 129.
•
··
..1 Minn.
..58 Ill. 425..
15 Barb. 568...
*
...
··
...
··
381
824
261 or 361
1 Minn. 54...
.2 A. K. Marsh. (Ky.) 849. 20,384
….5 N. H. 538…….
832,357
853
11 Paige, 180....
..2 H. & G. (Md.) 416…………….. 272
....7 Yerg. 42...
..2 Ired. 282..
857
353
392
TABLE OF CASES.
658
Humphrey v. Wood……..
Hunt v. Bay State Iron Co...
Hunt v. Field...
Huut v. Nortis....
Hunt v. Stevens.
Hunter v. Potts.
Huntington v. Cotton..
Huntingdon v. Grantland.
Huutington v. Smith…….
Huntress v. Tiney.
Hurd, in re
Hurd v. Silsby.
Hurlbert v. Dean.
...
··
...
··
...
Hurlbut v. Seeley.
Hussey v. Thornton.
Hutchins v. Evans...
Hutchins v. Gilchrist..
Hutchins v. Hanna.....
Hutchins v. Ruttan..
..
...
· •
Hutchinson v. Chamberlin...
Hutchinson v. Parkhurst..
Hutchinson v. Kay
Hutchins v. Watts
Hutter v. Elwanger..
Hyatt v. Spearman
Hyatt v. Wood.
Hyde v. Higgins.
Hynson v. Taylor....
Hyslop v. Clarke……….
...
..
...
••
...
•
Iken v. Olenick....
Indian Chief..
Ingalls v. Herrick..
Ingalls v. Lord.
Inglehart v. Moore...
Inglis v, Sailor's Snug
Inman v. Allport.
Inman v. Strattan..
Ingraham v. Phillips..
Ingraham v. Wheeler..
Inues v. Lansing..
Inslee v. Lane……….
International Bank v. Monteath.
Ireland v. Smith.
•
Wright (Ohio) 566
.97 Mass. 283...
249
1 Stockt. (N. J.) 36………… 454
….4 Martin (La.) 517…………. 47,67,61
3 Ind. 865..... .....
...4 T. R. 182...
··
•
•
•
.33 Miss. 453..
.4 Conn. 235..
.39 Me. 237....
.9 Wend. 465..
•
···
81 Miss. 253....
10 N. H. 108..
....
13 Vt. 541..
··
.2 Keyes, 97; S. C., 2 Abb.
Dec. 428...
11 How. (N. Y.) 507. 108,111,113
4 Mass. 405.....
• ·
..4 Lans. 8...
...
23 Beav. 418....
85 Vt. 860...
.1 Cow. 240.
·
..
•
21 Tex. 501.
A
A
23 Vt. 82..
.8 Ind. 513..
.6 N. C. C. P. 452..
………..11 N. Y. Leg. Obs. 248.. 304-812
..1 Aik. (Vt.) 258..
...
..
435
249
866
863
20 Iowa, 510..
330
.4 Johns. R. 150, 159, 160... 197
.15 La. An. 1.....
67
84
..8 Ark. 552..
14 Johns. 458……………. 253,261,263
Harbor........8 Peters, 131……………………….
.65 Ill. 540…...
..
.4 Bush (Ky.) 445..
1 Day (Conn.) 117…….
.6 Conn. 277 ...
7 Paige Ch. 583.
.57 N. H. 454…….
.39 N. Y. 297...
..1 Barb. 419.,.
..
...
Page
8
··
.42 Tex. 195..
826
3 Rob. 12.....
119
..108 Mass. 851………………………... 272
238
261,360
286
367
464
188
276
210
245
52
863
844
72
287
286
243
452
184
261
...
·
268
246
261
274
293
402
654
TABLE OF CASES.
Irvin v. Howard...
Iselin v. Dalrymple..
Isham v. Kitchum..
Isham v. Gibbons..
Islay v. Stewart.
Ives v. Curtiss..
Ives v. Hamlin、………
Ives v. Holden..
Ives v. Mills...
Ives v. Miller.
··
··
··
··
...
...
•
···
...
···
•
..
··
.37 Ga. 18. and section 688 of
··
• •
•
··
··
263
445
113
246
142
440
461
325
19 Burb. (N. Y.) 196........ 63
•
·
•
Jackson v. Bank of the United States..10 Pa. St. 61....
338
..4 Heiskell (Tenn.) 610...... 153
...4 Johns. 215...
76
Jackson v. Burke......
Jackson v. Fuller..
5 Cow. 248
52 Barb. 9..
9 Cow. 78..
.4 Wend. 802.
18 Johns, 94..
..2 Ala. 326…….
7 Wend. 436..
.7 Cow. 238..
4 Wend. 463……….
1 Johns. Cas. 372.
·
Jackson v. Law……………………
Jackson v. Middleton.
Jackson v. Parker..
Jackson v. Peek..
Jackson v. Scott..
Jackson v. Stanly.
Jackson v. Timmerman.
Jackson v. Varrick..
Jackson v. Walker...
Jackson v. Walsworth.
Jackson v. Willard…………
Jackson v. Williams..
Jacobs v. Hogan..
Jacobs v. Remsen..
Jacoby v. Cogell...
Jacky v. Butler...
James v. Woodruff.
Jameson v. Head…………….
January v. Bradford...
Jencks v. Smith....
Jenner v. Joliffe……
Jenness v. Jenness..
Jenney v. Delesdernier.
Jennings v. Camp...
Jermain v. Pattison.
Jessup v. Halse..
Jewell v. Wright
Jewett v. Bacon..
Jewett v. Torry..
Jewett v. Torrey.
..5 Cush. 534………
14 Hun. 402
··
·
..
the New Code...... 887.454
27 How. Pr. 137..
46 Barb. 43..
•
....
··
1 Bradf. 69....
2 Dev. & But. 160.
2 Root (Conn.) 133.
37 Ill. 73...
....
.4 Johns. 41.....
.10 Ohio, 69...
...85 N. Y. 243.
36 N. Y. 668…….
5 S. & R. 450.....
.2 Ld. Raymond 871.
2 Den. 574....
··
14 Me. 84....
.4 Bibb 566...
.1 N. Y. 90.
.6 Johns. 9
24 Ind. 355...
20 Me. 183..
•
13 Johns. 94..
.46 Barb. 1
..
..
..
··
...
...
...
...
21 N. Y. 168
30 N. Y. 259..
··
...
6 Mass. 60.......
•
..
11 Mass. 209..
11 Mass. 219…….
·
•
•
………….
....
...
402
296
290
259
289-290
387
260
286
289
184
243-289
285
459
263, 264
42
192, 196
223
291
289
251
54-431
117
435
28
187
264
98
857
440
434
•
Page
··
•
··
...
TABLE OF CASES.
655
Jimmerson v. Duncan..
Johns v. Church...
Johnson v. Adams Tobacco Co..
Johnson v. Butler..
Johnson v. Curtis..
Johnson v. Crawford.
Johnson v. Crofoot..
Johnson v. Edson..
Judson v. Gardner..
Johnston v. Harvy.
Johuson v. King..
Johnson v. Laughlin.
Johnson v. Lowry...
Johnson v. Monell..
··
....
..
...
•
··
· •
•
··
•
·· •
..
D
►
• •
portation Co....
Jones v. O'Brien..
Jones v. Winchester...
Jordan v. Hudson.
Julian v. Beal………
··
Kane v. Drake...
Kapp v. Teele...
Karnes v. Pritchard.
Kaster v. McWilliams.
Kearslake v. Morgan..
Keep v. Sanderson....
Johnson v. Richardson....
Johnson v. Short..
Johnson v. White……….
Jones v. Bank of Northern Liberties..44 Pa. St. 253..
..2 La. An. 277.
.....46 Cal. 828…….
.2 Ark. 415.…….
10 Barb. 193 ...
Jones v. Buzzard..
Jones v. Bradner..
Jones v. Brandon.
Jones v. Crawford..
Jones v. Gilbert...
Jones v. Gorham.
Jones v. Gregg.
Jones v. Hoar..
Jones v. Huggeford..
Jones v. Jones..
Jones v. Lusk..
Jones v. N. Y. R. R. Co....
Jones v. Norris...
Jones v. Norwich and New York Trans-
•
•
•
Page
3 Jones (N. C.) 537. ..255, 293
• •
..12 Pick. 557.
439
14 Hun, 89……….
2 Iowa, 543……….
.42 Barb. 588.
•
90
.75, 79, 83
257
238
271
2 Aik. 299....
.435, 457
4 N. Y. Leg. Obs. 424………….. 262
.2 Pen. & W. 82...
•
262
358
149
140
6 Black, 377...
•
.53 Barb. 574..
.6 Humph. (Tenn.) 233.
.7 Kas. 359.
33 Miss. 462
•
•
··
.47 Ga. 560……….
2 Keyes, 655; 8. C., 2 Abb.
·
Dec. 470
•
..48 Geo. 593..
•
···
•
1 McMull. 373.…….
•
13 Conn. 507.
.. ·
··
2 Mass. 375...
•
.17 Ind. 84..
.5 Pick. (Mass.) 285.
...8 Met. 515.
··
.2 Ala. 526......
..
..
.50 Barb, 198........
·· •
...
4 J. & Sp. 58..
...6 N. H. 497.
.10 Lex. 82...
.26 Ind. 220……..
··
27 Ind. 32…..
33 Tex. 811…….
.86 Mo. 185
41 Ala. 302.....
5 Term, 513.
.12 Wis. 352...
··
··
...
.1 Bland, 443
•
.8 Met. (Ky.) 356..
1 Grant's Cases, 457........ 855
832
••
.....
·
281
827
64
245
837
.48, 52, 67
245
330
294
439-441
349
52
52
259
840
283
•
103
270
.. 835
288
287
•
•
272
860
360
823
27
261
656
TABLE OF CASES.
Keifer v. Webster..
Keller v. Bricker........
Kelley v. Baker.....
Kelley v. Breusing.
Kellogg v. Griffin.
Kellogg v. Kellogg.
Kellogg v. Miller……….
Kellogg v. Slawson..
Kellogg v. Wood..
Kelly v. Downing.
Kelly v. Hart……
Kelly v. Lane...
Kelly v. Roberts.
Kelsey v. Durkee...
Kemp v. Curley..
Kendal v. Brown....
Kendall v. Sampson.
Kennedy v. Brent…….
Kenyon v. Baker..
Kenyon v. Gould..
Kercheib v. Schlop..
Kergin v. Dawson..
Kerr v. Mount…….
Kerry v. Bower……….
Kesler v. St. John…….
Ketchum v. Johnson.
Keteltas v. Fleet..
Kateltas v. Wilson..
Kettle v. Harvey
Kilbey v. Jonas......
Kid v. Rawlinson…..
Kidd v. Lester..
Kidder v. Orcutt..
Kieffer v. Ehler.....
Kilborn v. Lyman.
Killburn v. Bennett.
Kilmer v. Hobart........
Kimball v. Davis..
Kimbrough v. Davis..
King v. Bailey...
King v. Gorham........
King v. Kenan. … … … … 、 … … … …
King v. McDrew........
King v. Wilcomb,.
King v. Wilcox, ..
..
·
··
..
• ··
IN
•
•
•
•
6 Hun, 526…….
.64 Pa. St. 879.
10 Minu. 154..
•
33 Barb. 133..
•
6 Barb. 116 ...
•
.6 Ark. 468..
.11 N. Y. 302...
..4 Paige, 578.
.42 N. Y. 71..
.14 Vt. 53..
.28 How. 128.
.40 N.Y. 482..
•
83 Barb. 410…….
.8 Duer, 1
.7 La. An. 668.
...
17 Jolins. 274………
•
...
·
• •
12 Vt. 515...
.6 Cranch, 187...
·
16 Mich. 878..
.61 Pa. St. 292..
.49 How. 284.
6 Ill. 86....
28 N. Y. 659.....
.Cro. E. 186..
22 Iowa, 565……..
.8 Green Ch. 870..
..7 Johns. 324...
··
..
•
··
··
.86 Barb. 298..
21 Vt. 801....
•
··
··
7 Bush, 243
2 Bos. & P. 59..
46 Ga, 231.
40 Me. 589...
·
.18 Pa. St. 388...
..6 Metc. 299....
·
...
8 Metc. 199..
•
.8 Abb. N. C. 426.
...19 Me. 810...
34 Ala 583..
8 Mo. 832...
.4 Me. 492...
38 Ala. 63…….
7 Barb. 263..
11 Paige, 589..
··
193-418
429, 444
285
20
,261, 264
293
417
275
454
837-364
217
268
463
279
401
815, 811
407
267
833
889, 894
855
366
290
280
264
291, 352
830
278
206
286
261
189
122
190
401
362
242
866
257
206
250
254
..
Page
877
809
324
..
..
TABLE OF CASES.
657
Kingman v. Perkins..
Kingman v. Spurr...
Kingsland v. Braisted..
Kingsland v. Worsham..
Kingsley v. Kingsley.
Kingsley v. Mo. Fire Ins. Co.....
...
Kipp v. Hanna……………….
Kirby v. Schoonmaker..
Kirkman v. Hamilton.
Kirtland v. Davis.......
Kirtland v. Snow..
Kirksey v. Jones.....
Kissam v. Edmondson..
Kissam v. Marshall.
Kiser v. Sawyer....
Kitchen v. Reinsky....
Kittredge v. Emerson..
Kittredge v. Warren.
Klein v. New Orleans..
Kluender v. Lynch...
Knapp v. Meigs...
Knapp v. Smith..
Knapp v. Sprague..
Knauth v. Bassett..
Knight v. Fair...
Knight v. Forward..
Koehler v. Ball........
··
··
...
..
Ladd v. North....
Ladd v. Terre Haute C. & M.
Lafayette Ins. Co. v. French.
Laing v. Cunningham..
Lamb v. Day....
105 Mass. 111...
....
7 Pick. 235, 238…..
.2 Lans. 17…….
.15 Mo. 657..
.39 Cal. 665..
14 Mo. 467.
.2 Bland, 26..
..8 Barb. Ch. 46…….
··
...
.9 Martin, 297……
.43 Geo. 818.....
.20 Conn. 23........
··
..
..
·
···
.7 Ala. 623...
•
.1 Ired. Eq. 180......
10 Abb. 424..
..4 Kans. 503…….
.42 Miss. 427.
... 293
353
15 N. H. 227..
188
14 N. H. 509……..
188
99 U. S. Rep. 149..
236
•
.4 Keyes, 361........
297
11 Abb. N. 8. (N. Y.) 405.. 54
D
..27 N. Y. 277....
297
...9 Mass. 258........
34 Barb. 31...
.9 Cal. 117..
··
··
··
•••
•
···
839
269
287
63 Barb. 811...
277
•
2 Kans. 160............... 285
•
245
444
236
.41 Cal. 455...
.5 Hill, 877
Kohler v. Hayes....
Knower v. Barnard.
Knox County v. Arms...
Knox v. Schepler.
..22 Ill. 175..
2 Hill, 595..
....204-858
Knox v. Summers..
.4 Yeates, 477…………………. .191, 205
Knox v. The Protection Ins. Co…………….9 Conn. 430……………………………..67-853
Co......9
Knox v. Webster..................18 Wis. 406...... *………. 442
Kresin v. Mall….
15 Minn. 116...
.823-326
Kugler v. Shreve..................4 Dutch. 129..
129
Kuhlman v. Orser...................5 Duer, 242, 244, 833...... 411
Kuntz v. Kinney..
Kurz v. Brusch....
……………………
811
.83 Wis. 510....
..18 Iowa, 871.....
825
..2 Mass. 514……..
Co.....18 W. Dig. 209...
........18 How. (U. S.) 404.
..17 Iowa, 510....
.8 Vt. 407...
223
222
139
827
858
259
268
332
824
278
892
· 260
885-893
•
Page
864
...
428
896
89
830
433
J
42
658
TABLE OF CASES.
}
··
Lambkin v. Douglass..
Lamkin v. Phillips..
Lamont v. Cheshire..
Lamprey v. Leavitt...
Lampriere v. Pasley.
Lane v. Baker..
Lanes v. Brant
Lane v. Felt.
Lane v. King....
Langdon v. Lockett.
Lanning v. Streeter.
Lansing v. Woodworth.
Large v. Moore......
Larrabee v. Baldwin
Latham v. Atwood..
Lathrop v. Blake...
Lathrop v. Blake.........
Lathrop v. Cook……..
Lathrop v. Soldier, etc.............45 Geo. 483.
Latimer v. Batson..
.14 Me. 414...
7 D. & R. 106…….
..6 Dana, 118………..
··
Laughlin v. Ferguson.
Lawrence v. Bank of the Republic……….35 N. Y. 820.
Lawrence v. Burnham.....
..4 Nev. 864……….
.39 Mc. 484..
51 Barb. 80..
··
..
..
Lee v. Crossna.
Lee v. Decker.....
..
•
..
•
Lawton v. Bruce..
Lawton v. Kiel..
Lawton v. Riel...
Lay v. Neville...
Lea's Appeal..
Leach v. Cook..
Leadbetter v. Anderson..
Leahey v. Dugdale……….
Leak v. Moorman....
Learned v. Bryant..
Learned v. Vandenburgh
Lecesne v. Cottin.
Lee v. Bullard……….
•
··
...
··
Lee v. Gansell....
Lee v. Huntoon.
Lee v. Miller...
Lee v. Risdon.
Lee v. Selleck,......
Lee v. Stanley.
• ··
.10 Abb. N. C. 342......870-386
..9 Port. 98....
...65 N. Y. 80......
20 N. H. 544..
863
404
440
.2 T. R. 485..
274
..2 Grant's Cases, 424........ 200
.10 How. (U. 8.) 348....
286
7 Gray, 491....
860
....8 Wend. 584.
252
...6 Ala. 727...
849
255, 417
263
862
..
•
...
..57 Barb. 83..
.1 Sandf. Ch. 43..
..17 Iowa, 258....
..35 Cal. 156…….
.Cro. Car. 515...
···
77
251
8 Foster (N. H.) 46.....248, 839
.23 N. H. 46…….
427
•
··
.67, 893-394
.. 874
..274, 278
282
.145, 194
..Pbill. Eq. (N. C.) 823...289–290
..41 Mo. 517…..
..25 Cal. 552 .
34 How. 465...
9 Pa. St. 504……….
•
.10 Vt. 239....
··
··
.Phill. (N. C.) L. 168……….
13 Mass. 224.....
.8 How. 77...
Page
362
3
439
405
463
194
…………………..6 Humph. (Tenn.) 281...... 283
6 Abb. N. S. (N. Y. Ct. of
App.) 892.......
….10 Martin, 174....
.3 La. Ann. 463....
··
439
206
275
275
..255, 417, 455
279
830
•
··
Loft, 874…….
Hoff. Ch. 447..
...
80
408
273
….11 Allen, 47…….
823
250
··
7 Taunton, 188.
83 N, Y. 615……..
.98, 99
.....9 How. 272………,108, 111, 112, 119
TABLE OF CASES.
659
Leeds v. Sayward.
Leefe v. Walker...
Leffingwell v. Chave...
Legro v. Staples..
Lehman v. Illums..
Leitch v. Hollister.
Lemar v. Miles..
Lenox v. Howland.
Lenox v. Notrebe...
Leonard v. Stout....
Lepson v. Anderson.
Lesem v. Herriford…….
Lessley v. Phipps..
Lester v. Abbott….
Levi v. Thompson..
Levicks v. Walker..
Levy v. Levy......
Lewis v. Armstrong.
Lewis v. Berry..
Lewis v. Buck……...
Lewis v. Orpheus.
Lewis v. Paine...
Lewis v. Reed..
Lewis v. Smith..
··
·
....
•
Libbey v. Hodgdon...
Lidsey v. Fuller....
Lieber v. St. Louis.
Lightner v. Steinagel..
Like v. Mitchell..
Lishy v. Perry...
Litchfield v. Cudworth.
Litchfield v. White...
Littlefield v. Hodge...
Littlejohn v. Wilcox.
Littler v. Smiley....
Livermore v. Northrup..
Livermore v. Rhodes..
Livingston v. Bateman..
Livingston v. Greene...
Lloyd v. Loaring.
Locke v. Tippets.
Locket v. Child...
•
19 How. 54..
16 Me, 252...
•
..1 Law Bull. 58..
•
...
Page
849
853
887
863
412
271
4 Watts, 330..
248
.3 Caines (N. Y.) 823...42, 45, 66
294
...108, 128
81
6 N. H. 83…….
•
•
18 La. 1......
•
•
..1 Hemp. 25...
...86 N. J. 870.........
36
.C. P. 2nd George….
.44 Mo. 823....
.49 Miss. 790………….
.28 How. Pr. 488..
.4 How. (U. S) 17...
.9 Am. L. Reg. 112.
..11 La. 581.
....8 Abb. N. C. 385.
...64 Barb. 593..
.7 Minn. 104..
3 Ware, 143…..
•
.4 N. Y. 211...
.1 Leg. Gaz. R. 508..
.11 Ind. 239...
··
.2 8. & R. 142...
··
·····
.9 N. H. 394...
.10 Watts, 144...
86 Mo. 382......
• •
Lockwood v. Barcfield……
Lockwood v. Bull…………
Lockwood v. Younglove......… … … … … ….
..
2 La. An. 620.
.9 Ind. 116....
.44 N. Y. 107.......
27 How. 506...
.2 Wend. 570.
855
.33 Ill. 510……….
340, 341, 346
..3 Yerg. 400..
.288, 289
.6 Bush (Ky.) 515........... 254
.15 Pick. 23...
··
297
261
.7 N. Y. 438...
...6 Mich. 826.
261
889
29
264
169
293
296
222
855
360
...
52 N. Y. 118...
•
6 Vesey, 773.
7 Mass. 149..
….11 Ala. 640……….
.....7 Ga. 393.
.1 Cow. 322.
27 Barb. 505..
...
·
•
..
·.·
...
278
830
269
286
... 311
64
83
363
839
409
858
185
429
89
321
•
75
427
.809, 812-815
660
TABLE OF CASES.
Loeschigk v. Hatfield...
Lomerson v. Huffman...
Loomis v. Allen........
....
Loomis v. Green....................7 Maine, 886...
….10 Paige, 490...
..6 Iowa, 57...
Loomis v. Stuyvesant..
Lord v. Gladdis...
Loring v. Folger.......
Loring v. Melendy.
Loughran v. Ross....
Louisville v. Commonwealth.........1 Duval, 295..
Louisville, &c. R. R. Co. v. Letson...2 How. (U. S.) 497...
.7 Gray (Mass.) 505.....
.11 Ohio, 855.
..45 N. Y. 792..
Lovejoy v. Albee....
Lovejoy v. Lee.....
...
Low v. Graydon........
....83 Me. 414..
...85 Vt. 430.
..50 Barb. 414..
.53 Me. 45....
.9 Porter, 415...
.....14 Wis. 222...
Low v. Marco..
.....11 Hun, 899..
.25 N. Y. 89.
··
...
..
Lowe v. Derrick.
Lowe v. Stringham......
Lowenstein v. Flauraud.
Lowery v. Steward..
….5 Vt. 181……….
...15 III. 95.....
Ill.
Lowry v. Walker.......
Lowry v. Wright...
Loyless v. Hodges.
Lucas v. Birdsey..
Ludden v. Hazen..
Luddington's Petition...
Ludwig v. Fuller...
.44 Ga. 647.
....41 Cow. 857.
...81 Barb. 650..
..5 Abb. N. C. 266.
...17 Mc. 166..
…….
Luff v. Pope......
Lundie v. Bradford……
.5 Hill, 413........
..26 Ala. 512…….
Lunt v. Bank of North America.
Lupton v. Cutter
Lyell v. Supervisors of St. Clair…………..8 McLean, 580…………..
.49 Barb. 221..
...8 Pick. 51...
.8 E. D. S. 117..
Lyman v. Cartwright.
Lyman v. Fiske……………
Lynch v. Crary.
Lynde v. Melvin..
Lynde v. Montgomery...
Lyndon v. Gorham....
Lyon v. Blakeslee...
Lyon v. Sandford...
Lyster v. Dolland..
Mack v, Parks…………………….
Mackie v, Cairns....
...
..5 Robt. 26 (S. C. on app.,
51 N. Y. 660)...
......1 Dutch, 625..
....7 Ind. 706..
Macomber v. Doane.............
Macomber v. Wright....
··
17 Pick. (Mass.) 231...
.52 N. Y. 181……….
.11 Vt. 274..
..15 Wend. 461…….
..........1 Gallis. 867...
..19 Hun, 299..
..5 Conn. 844...
...
.1 Ves. Jr. 431.
··
..8 Grav. 517…….
.5 Cow. 547.
2 Allen, 541...
85 Me. 156...
Page
254
853
.185, 186
403
288
84
187
288
250
236
89
835
841
285
255-298
887
803
270
863
427
850
408
246
246
807
274
863
.. 850
863
298
296
862
123
406
816
140
.206, 858
879, 887
800
..241, 289
238
202
864
857
TABLE OF CASES.
661
Magee v. Carpenter......
Maine F. & M. Ins. Co. v. Weeks.....7 Mass. 468...
Mains v. Haight..
Malley v. Altman.....
Mallory v. Clark..
Mandel v. Pect, Sims & Co....
Manders v. Manders.
•
..
...
·· ·
Manning v. Gould……
Manning v. Monaghan..
Mansfield v. Blackburne.
Manton v. Poole.....
Market Nat'l Bank v. Pacific Nat'l
·
.4 Ala. 469..
14
293
..18 Ark. 236……….
130
259
864
..4 Irish Eq. 434……….
Mandeville v. Welch..
.5 Wheaton, 277.
Manley v. Hunt..
...1 Ohio, 257.……………………………………. 291
Mankin v. Chandler.............. ...2 Brock. 125.....
3
898
242
.....6 Bing. N. C. 426.......... 247
.4 Hun, 638..
378
...14 Barb. 76…….
….14 Wis. 22…….
..20 How. 418...
...
Bank..
Marnine v. Murphy.....
Marsh v. Davis........
Marsh v. Lawrence.
Marsh v. Lawrence.
Marsh v. Lazenby..
Marsh v. Williams..
Marshall v. Baltimore & Ohio R. R.
...
..1 Civ. Pro. Rep. 216…………
...1 Bosw. 459...
•
··
2 Civ. Pro. Rep. 830......91, 93
.8 Ind. 272...
886
.24 Vt. 363...
...4 Cow. 461..
....4 Cow. 461.....
.41 Geo. 153.
63 N. C. 871..
··
...
21 Iowa, 535……….
.67 N. C. 293 .
..87 Md. 530...
Martin v. Mobile & Ohio R. R. Co....7 Bush (Ky.) 116.
......11 Gray, 87...
Martin v. Potter....
Martin v. Thompson...
Martrick v. Linfield.
Marvin v. Hawley..
Marty, in re
Martz v. D. F. & M. Ins. Co.
Mason v. McConnell...
Page
273
261, 833
29
Co....
...16 How. (U. S.) 814…….
.59 Barb. 519...
Marshall v. McGregor..
.59 Barb. (N. Y.)
..8 Porter (Ala.) 551…………….
..Com. Rep. 275, 277...
17 Mass, 606
... 196
246
833
•
Marshall v. McGregor..
Marshall v. White......
Marriott v. Shaw...
Marston v. Baldwin...
Marston v. Carr…….
Mark v. The State
Marquand v. N. Y. Manufacturing Co.17 Ind. 535.…………………………………** 228
Martin v. Barney......
453
Martin v. Branch Bank..............14 La. 415............. 89
Martin v. Davis..
16 Ala. 325...
15 Ind. 98.
804
.20 Ala. 869……….
349
Martin v. Hughes...
326
Martin v. Jewell...
241
89
366
883
273
841-
.42, 66
854
227
..8 Bibb (Ky.) 252.
.21 Pick. 825,
9 Mo. 882...
•
•
8 Barb. (N. Y.) 229………………
..28 Mich. 201...
1 Whart. 381……..
..306
241
280
804
8
217
193
194
84
662
TABLE OF CASES.
Masterton v. Beers....
Mason v. Briggs..
Mather v. Bush...
Mathewson v. Weller.
Mattison v. Baucus..
Mattock v. Stearns.
Mauldlin v. Mitchell.
Maxey v. Loyal..
Maxwell v. Lea....
Maxwell v. McBrayer.
Maxwell v. Reed.
...
•
...
..
May v. Baker.....
May v. Walter.
Maynard v. Hoskins...
Maynard v. Mech. Nat.
Mayho v. Cotton.
Mayo v. Stroud..
Mayor of N. Y. v. Genet..
Meacham v. McCorbitt.
Mead v. De Golyer..
Mead v. Phillips..
Meader v. Leslie…….
Meader v. Leslie.....
Meader v. Scott...
Mechanics' Building and Loan Associ-
..14 N. J. Eq. 219………….
...
ation v. Conover.
Mechanics' and Traders' Bank v. Da-
kin..
...51 N. Y. 519………….
Mechanics' and Traders' Bank of Jer-
Bey City v. Dakin.
Melville v. Brown
Meldrum v. Snow..
Melton v. Davidson.
Mercer v. Tinsley.
Merchants' Bank v. McColl..
··
...
Mercier v. Chace....
Merrett v. Miller.
Merrick v. Van Santvoord.
Merrill v. Curtis...
Merrill v. Rinker.
Merrit v. Judd ..
Merritt v. Niles.....
Mersereau v. Nerton.
Messner v. Hutchins.
Messner v. Lewis........
•
··
6 Rob. 868.......
.16 Mass. 353...
.16 Johns. 233…….
.8 Den. 52..
…….1 N. Y. 295..
.9 Vt. 326...
.14 Ala. 814...
•
··
..38 Geo. 581……….
··
6 Heisk. (Tenn.) 247...
.Phillips (N. C.) 527……
.7 Wis. 582...
...15 Ill. 89...
..56 N. Y. 8...
..9 Mich. 485.
8
280
293
Bank........1 Brewster (Pa.) 483....... 93
.69 N. C. 289..
326
299
.125, 140, 874
.834, 854
29
262
20
86
204
...
12 Rob. (La.) 105…….
•
··
...4 Hun, 487...
2 Met. 352...
..16 N. Y. 635..
..1 Sandf. Ch. 83.
..4 Verm. R. 26............
.2 Id. 569...
··
.4 Verm. R. 26, 29 a..
• •
....
•
··
..6 Ired. Eq. 194……….
14 B. Monroe, 274…….
•
.6 Bos. 478.……….
··
50 Barb. 587
15 Mass. Rep. 82..
9 Pick. 441 …….
...
··
.11 Allen, 194.
.13 Vt. 416...
..84 N. Y. 208
.18 Me. 272...
.Baldwin, 528..
14 Cal. 59....
.25 Ill. 283...
15 Johns. R. 179.
•
Page
280
438
76
308
243
297
280
826
3
53
.811-813
•
....17 Tex. 597...
......20 Tex. 221..
...
··
.254, 410
25
198
245
293
242
283
224
274
89, 241
435
.....
··
240
245
248, 250
242
193, 198
20
453
...
....
TABLE OF CASES.
663
Page
Metcalf v. Clark..:
.41 Barb. 45……..
185
444
Mickie v. Planters' Bank.. .........4 How. (Miss.) 130.
Middlebrook v. Ames…….
...5 Stewart & Porter, 158.... 140
Middletown Savings Bank v. Jarvis..33 Conn. 872.......
Mildmay v. Smith..
.2 Saund. 344.
241
433
Miles v. Brown.
410
167
487
232
447
.42, 43
434
867
257
194
859
254
894
··
38 N. Y. Supr. 400.
.26 Hun, 24……..
Miliken v. Dart...
Millbank v. Broadway Bank........ 3 Abb. N. 8. 223.
Millar v. Taylor....
...4 Burr. 2296
Milledgeville Manuf. Co. v. Rives.....44 Geo. 479.
Milldam Foundry v. Hovey.
Miller v. Adsit.....
.21 Pick. 445…….
.10 Wend. 335
··
Miller v. Brinkerhoff.
.4 Denio, 118....
32 N. Y. 293...
.1 Mo. 221...
1 Mo. 810...
C
Miller v. Lockwood.
Miller v. Richardson..
Miller v. Richardson..
Miller v. Wilson..
Mills v. Corbett...
Mills v. Duryea.
Mills v. Grant.
Mills v. Spaulding.
Mills v. Thursby.
Milne v. Schmidt.
Mims v. Parker...
...
...
..
...
Minard v. Lawler....
Mineral Point R. R. Co. v. Keep.
Minga v. Zollicoffer.
Minor v. Smith....
Mitchell v. Beal..
Mitchell v. Commonwealth..
Mitchell v. Hawley..
Mitchell v. Sevier..
Mittnacht v. Kelly.
Moir v. Brown…..
Mojarrieta v. Saenz...
Money v. Dorsey..
Montague v. Gaddis...
Montague v. Richardson...
Montgomery v. Tilley.
Montgomery v. Hunt.
Monroe v. Bishop....
Moody v. Payne..
Moore v. Budd…….
Moore v.
Calvert..
Moore v. Simpson……..
··
•
··
•
·
15 Ohio, 108..
•
.8 How. 500...
•
..
326
830
387, 407
830
850
35G
.22 Ill. 9...
··
··
89, 241
.1 Ired. L. R. (N. C.) 278... 84
3 Ohio St. 79....
407
256
433
76
297
257
207
.896-398
291
156
36 Vt. 269....
50 Me. 57....
11 How. 121.
•
•
··
12 La. An. 553……….
.1 Ala. 421...
.26 Ill. 801.....
····
·
..8 Yerg. 134..
...
··
37 Pa. St. 187...
.4 Denio, 414, 416..
•
..
...9 Humph. 146..
...
3 Keyes, 407...
14 Barb. 89..
.80 N. Y. 547........
7 S. & M. 15....
37 Miss. 453...
·
.24 Conn. 333……….
811-819
.1 B. Monroe (Ky.) 155……….. 155
...5 Cal. 866....
294
29 Georgia, 159...........24, 73
.2 Johns. Ch. 548.. .200, 247
.4 Hagg. Eccl. 352..
122
..
..9 How. Pr. 474…………
870
.5 Littell (Ky.) 49.......... 194
664
TABLE OF CASES.
Moore v. Hitchcock..
Moore v. Dickerson,
Moore v. Farge.....
Moore v. Holt...
Moore v. Kidder….
Moore v. Lyons.
Moore v. McDuffy.
Moore v. Murdock.
Moore v. Pillow....
Moore v. Ringgold.....
Moore v. Simpson..
Moore v. Stainton.....
....
Moore v. Thayer…………………….
Morse v. Toppan.
Moore v. Westervelt..
Moore v. Westervelt...
Moore V
Withenberg.
Moore v. Whitis..
Moores v. White...
Morgan v. Avery.
Morgan v. Bouse...
Morgan v. Stearns...
Morgan v. Watmough.
Morley v. Strombom..
Morris v. Hyde....
Morris v. Way.
Morrison v. Atwell...
Morrison v. Blodgett..
Morse v. Holt.....
Morse v. Hurd.
...
...
··
Morse v. Powers..
Morton v. Naylor.....
Moses v. Waterbury Button
Moss v. Averell......
Moss v. Moore.......
Moss v. Warner.......
Mott v. Lawrence,
Mott v. Lawrence...
Moulton v. Chapin...
Mount v. Harris…..
Mowbray v. Lawrence..
Moxley v. Ragan…..
Moyer v. Hinman..
Mundell v. Hammond….
Munroe v. Luke….
.4 Wend. 292.
:....44 Ala, 485...
………….118 Mass. 254......
438
......10 Grattan (Va.) 284....... 129
.55 N. H. 488...
405
.25 Wend. 119.............. 296
.......8 Hawks, 578.......………………、
..26 Cal. 514..
298
244
833
272
290
14
138
78
...8 Humph. 448...
8 Cranch C. C. 434.........
..
3 Met. (Ky.) 849…….
22 Ala. N. S. 831...
6 How. Pr. 47.
.8 Gray (Mass.) 411…….
.27 N. Y. 234........
431-432
21 N. Y. 103.............. 407
..13 La. 392..
.80 Tex. 440..
324
.3 Gratt. (Va.) 839.......... 186
.7 Barb. 656....134, 135, 141-137
..53 Mo. 219..
289
...41 Vt. 898...
..823-826
……………………..5 Wharton (Pa.) 125……….194, 208
..8 Bos. & Pull. 9…………
.105, 182
.8 Vt. 852....
...16 Ohio, 469.......
9 Bosw. 503..
8 N. H. 238..
........22 Me. 180...
·
•
....
.17 N. H. 246………
.17 N. H. 286.
··
1 Hill, 583………..
Co……………….15 Abb. N. §. 205.
.10 N. Y. 449..
Page
244
24
191
837
..
.408, 439
274
263
466
228
··
.8 Hill (S. C.) 276.......... 407
..10 Cal. 290...
823
..9 Abb. Pr. 196........
..17 How. 559..
.28 Me. 505.….
9 Miss. 185.
….13 Abb. 818……..
.10 Bush (Ky.) 156.
··
13 N. Y. 180...
.40 Vt. 631..
……….19 Pick. 89...
278
287, 288
264
..
163
369
441
291
171
811
291
813
299
TABLE OF CASES.*
605
Page
.11 Abb. N. 8. 407......1C8, 121
.14 Caines (N. Y.) 818...... 63
.14 Johns. 818....
223
...10 Johns. R. (N. Y.) 72………. 54
....19 N. H. 483...
285
344
..
…….3 Hill (S. C.) 12.
14 How. Pr. 477….
339
9 Ired. 116...
261
..47 Miss. 281...
152
..22 Wisc. 139...
805
....29 Cal. 889............. 180, 220
.34 Md. 54...
85
453
.82 Ala. 75 ...
26 N. Y. 450, 456…….95, 104, 182
.2 Bail. (S. C.) 203..
860
446
7 Iowa, 404
...2 Dall. 277.......194, 205, 858
.1 Sw. 887..
280
86 Vt. 254..
827
..12 Ala. 17……….
285
262
8 Pen. & W. 83.
.40 Ill. 831....
827
11 N. Y. 593...
892
8 Gilm. 578
309
806
McClurg v. Lecky....
McClurkin v. McClurkin.
McClusky v. Cromwell...
McClusky v. McNeely.
McCoid v. Beatty...
McConnell v. Sherwood.
McConnell v. Sherwood.
McCoombe v. Dunch..
McCombs v. Allen...
McCormick v. Kehoe...............7 N. Y. Leg. Obs. 184..... 852
McCreevy v. Fortion...
307
….12 Iowa, 299 .
..61 How. 67
208
th
.84 N. Y. 522………………………. 261, 204
.2 Dallas (Pa.) 78.
...82 N. Y. 114...
185
460
.33 Texas,
64 Pa. St. 89.
McCurdy v. Canning.
McCubbin v. Atchison............
...12 Kans. 166.............. 802
McCullon v. Dashiell's Adm'r……… …….1 Harr. & Gill, 96…………………. 20
McDonald v. Beach.
.2 Blackf. 55, 58, Holman, J. 201
McDonald v. Crandall...............48 IIL 231...
•
826
13 Mo. 549...
84
..53 Mo.. 843...
887
245
809
McDonald v. Forsyth
McDonald v. Fist..
McFarland v. Farmer
McGee v. Anderson.
McGee v, Beirne..
v.
McGhee v. Way..
McGinn v. Butler....
McGinn v. Ross...
McGowen v. Hoy.
.42 N. H. 386…….
..1 B. Monr. 189,
89 Pa. St. 50...
........46 Ga. 282………..
...81 Iowa, 160..
3
307
49
410
273
Murphy v. Baldwin..
Murray v. Bogert.
Murray v. Bogert.
Murray v. Burling.
Murray v. Emmons..
Murrell v. Johnson..
Muscott v. Woolworth...
...
Myers v. Beeman....
Myers v. Farrell...
Myers v. Ford..
Myers v. Mott....
McAllister v. Eichengreen.
McArthur v. Carrie..
McBride v. Farmers' Bank….
McBride v. Floyd……………
McCarn v. Rivers..
McCarty v. Emlyn....
McCarthy v. McQuade...
McCary v. Bixly..
McCaskle v. Amarine,
..
...
...
►
#
...
•
..
..
...
··
..
..
··
.11 Abb. N. S. 20..
.5 Litt. 243..
...
..
666
TABLE OF CASES
McGrath v. Hardy……..
McGuire v. Gallagher....
McHendry v. Reilly..
McIntyre v. Agricultural Bank..
McKay v. Harrower.....
McKean v. Turner...
McKenzie v. Lampley……
McKenzie v. Murphy..
McKibbin v. Martin..
McKim v. Mason..
McKinney v. Craig.
McKnight v. Knisely.
McLaughlin v. Davis.
McLaughlin v. Swan
McManus v. Campbell.
McMechan v. Griffing.
McMechan v. Marman.
McMenomy v. Ferrers..
McMillan v. Dana..
McMillan v. Vanderlip..
McMillan v. Richards....
McMinn v. Hall...
...
··
•
··
··
....
...
···
Neilson v. Neilson.
Nelson v. Wellington..
Nesbitt v. Ware..
.4 Bing. (N. C.) 785.
...2 Sandf. 402....
..13 Cal. 75..
...1 Frec. Ch. 105..
.27 Barb. 463………….
45 N. H. 203.
•
··
31 Ala. 52……..
•
...24 Ala.
..64 Pa. St. 352..
..3 Md. Ch. 186.
..4 Sneed, 577..
25 Ind. 336 ..
•
235
803
279
248
401
302
.14 Kansas, 168…….
892
.18 How. (U. S.) 217........ 849
.87 Tex. 267..
827
..9 Pick. 537.
299
..
•
...
..8 Gill & J. 57.
8 Johns. 71... .....
....18 Cal. 839.
··
McMurray v. Shuck..
··
McPherson v. Snowden........
McQueen v. Middletown Man'f'g Co..16 Johns. 5……………………..
Naylor v. French...
Napier v. Gidien..
Nat'l Bank v. Colby
Nat'l Shoe & Leather Bank of New
293
863-864
454
..12 Johus. R. (N. Y.) 166... 28
….9 Cal. 365…...
840
850
200
8
88, 211
2 Tenn. 328……….
.Id. 111....
19 Md. 197....
···
National Bank v. Sprague.
Neal v. Coe..
Neal v. Sachs
York v. Mech. Nat'l Bank of N. J..89 N. Y. 467..
.20 N. J. Eq. 13.
35 Iowa, 407....
.15 W. Dig. 476
..5 Barb. 565...
...5 Bos. 178..
30 Ala. 68..
....8 W. & S. 9....
...
……..
.4 Yeates (Pa.) 241.......
......1 Speer's Equity,
21 Wall. (U. S.) 009.......
193, 427-428
.353-354
...
...1 Rob. (La.) 231..
7 La. An. 148
Page
14
76
807
290
...
283
850
863
807
Nesmoth v. Dunn...
New England, etc. v. Merriam.......2 Allen (Mass.) 890.
New Haven Saw Mill Co. v. Fowler..28 Conn. 103………………….48, 67, 846
103....
New Haven S. 8. Co. v. Vanderbilt...16 Conn. 420…….
New Orleans Canal and Banking Com-
254
pany v. Comly...
New Orleans & Carrollton R. R. Co. v.
Municipality No. 1
124
79
92
02
.258, 254
823
871
284
138
236
TABLE OF CASES.
667
New Orleans v. Home Mut. Ins. Co...23 La. An. 61...
Newton v. Russell....
.87 N. Y. 527..
N. Y. & Va. 8. S. Bank v. Gibson....5 Duer, 574..
New York Dry Dock Company v. Still-
man..
.80 N. Y. 174……..
New York Firemen's Ins. Co. v. Stur-
••
...
...
••
····
...
ges..
New York v. Genet……….
N. H. L. F. Co. v. Platt...
New York Life Ins. Co. v. Universal
Life Ins. Co..
Nicoll v. Mumford..
Nichols v. Claiborne..
Nichols v. McEwen...
Nichols v. Mead..
Nichols v. Mead..
Nichols v. Michael.
Nichols v. Patten.
Nichols v. Pinner......
Nichols v. Valentine.
Nicholson v. Leavitt..
Nicholson v. Leavitt..
Nioliu v. Douglas..
Niven v. Spickerman..
Noble v. Smith...
Noe v. Christie.....
Noland v. Wickham.
Norman v. Bellman..
Norris v. Watson...
North v. McDonald..
Northwestern Ins. Co. v Atkins…………..8 Bush, 328…….
Northern R. R. Co. v. Carpenter......8 Abb. 259.........……………….
Northern v. The State..
Norton v. Doolittle..
Norton v. Norton........
Norton v. People..
Norton v. Winter…….
Nostrand v. Atwood.
Nutter v. Harris....
Nowell v. Bragdon…..
Noyes v. Brown....
.2 Foster, 864……….
1 Bissell, 57...
.1 Ind. 113..
251
..
...
277
...82 Conn. 405..
....5 Cush. 524..
........8 Cow. 137………………………………………, 484
259
...1 Oregon, 47.
855
··
262
280
295
866
..
.2 Cow. 664..
.63 N. Y. 646……….
5 N. H. 193……..
.30 Me. 322……..
…….6 N. Y. 510…………….
.4 Sand. 252.
··
•
240
.88 N. Y. 424…….
...4 Johns. Ch. 523..
.89 Tex...
191
304
..17 N. Y. 22.
263
.2 Lans. 222..
243
241
.47 N. Y. 653……….
23 N. Y. 264…….
280
.18 Me. 231....429, 480, 450, 452
18 N. Y. 295...
281
427
201
268
262
63
866
863
814
304
234
140
858
58
.12 Johns. (N. Y.) 401..
...6 R. I. 446..
·
···
.51 N. Y. 270.
....9 Ala. 169…….
·
• •
•
2 Hill's Ch. 443
.16 Ind. 156..........
...
19 Pick. 281...
.9 Ind. 38...
14 Mc. 320....
·
.33 Vt. 431...
Page
236
890
863
Oakley v. Aspinall…………
..4 N. Y. 513…….
O'Brien v. Glenville Wooden Co.... .50 N. Y. 128...
295
282
376
333
..75, 185
417
668
TABLE OF CASES.
O'Brien v. Liddell.
•
....
O'Brien v. Mech. & Traders' F. Ins.
Co.....
.56 N. Y. 52....
410
O'Brien v. Merchant's Ins. Co........16 Abb. N. S. 212…………………….. 418
O'Daniel v. Crawford..
..4 Dev. 197...
200
•
.2 N. H. 66..
.25 Mich. 867……….
Odiorne v. Colly...
O'Donnell v. Segar.....
O'Farrell v. Stockman..
Offutt v. Edwards...
Ogden v. Petters..
19 Ohio St. 296...
•
Ohio and Mississippi R. R. Co. v.
Wheeler..
Oldham v. Ledbetter..
Oldham v. Scrivener..
Otis v. Boston..
Oliver v. Eaton.......
Oliver v. Smith....
Oliver v. Wilson..
Olmsted v. Herrick.
Olney v. Harvey..
Ombony v. Jones..
O'Niel v. Salmon…….
Ormond v. Moye.....
O'Neal v. Wilson....
O'Reer v. Strong..
O'Reilly v. Freel…..
Orr v. Sbraft.......
Orser v. Grossman.
Osborne v. Schiffer.
Osborn v. Tunis.
Osgood v. Howard..
Otis v. Sill....
Ouzts v. Scabrook....
Overton v. Hill...
Overton v. Williston..
Owings & Co. v. Trotter.
Oystead v. Shed....
....
...
..
Paddock v. Palmer.
Page v. Goodman
Page v. Jewett……….
Page v. Rodgers.
Page v. Thrall
Paihles v. Roux.
Paine v. Mason..
...
.10 S. & M. 871.
408
804
388
135
9 Rob. (La.) 90…...
...21 N. Y. 23………………..260, 264, 268
...
.1 Black (U. S.) 286…….. 219
.1 How. (Miss.) 43..
862
3 B. Monroe (Ky.) 579……………. 839
12 Cush. (Mass.) 44..
..
122
..8 Mich. 114.....
5 Mass. 183.......
29 Ga. 642………..
•
.1 E. D. 8m. 810..
50 Ill. 453...
..19 N. Y. 234…….
.25 How. Pr. 240....
...
..
.......11 Ired. 564...
..21 Ala. 288..
.13 IIL 688..
•
.87 How. Pr. 272....
..22 Mich. 260...
.11 How. 520..
87 Texas, 434………
..1 Dutch. (N. J.) 633…………………. 294
...6 Greenl. 452....
240
8 Barb. 102..
•
.47 Ga. 359....
..
1 Murph. 47......
...81 Pa. St. 155...
·
.1 Bibb, 157...
.12 Mass. 506...
..
Page
356
··
272
349
.135, 141, 143
261
237
248
269
862
242
52
…….870, 402
.827, 884
110
884
...
•
..
441
19 Vt. 581
.8 Ired. Eq. 16……………………………….
255,
.46 N. H. 441.............. 446,
280
.81 Cal, 293
11 Vt. 230...
82, 436
.14 La. 82...
.7 Ohio St. 198…….
468
258
237.
185
841
250
200
233
זי
TABLE OF CASES.
669
Palmer v. Foote..
Pulmer v. Forbes......
Palmer v. Galluss...
Palmer v. Hussey..
Pancake v. Harris....
Pancost v. Washington.
Pardeo v. Leitch.
Parish v. Murphree..
Park v. Matthews..
Parker v. Danforth..
Parker v. Guillow..
Parker v. Kendrick.
Parker v. Pistor..
Parker v. Porter....
Parker v. Scott.....
Parker v. Smith
Parkman v. Welch,
Parks v. Cushman..
Parrot v. Dearborn.
Parsons v. Livingston.
Parsons v. Livingston.
Parsons v. Stockbridge.
Parsons v. Strong...
Paschall v. Whitsett
Pate v. Swann………
Patrick v. Montader..
Patterson's Estate...
Patterson v. Bodenhamer.
Patterson v. Harland...
Patterson v. McLaughlin.
Patterson v. Perry.
Patterson v. Perry.
Pattison v. Blanchard..
Patton v. Smith..
Paul v. Burton......
Paul v. Hayford.
Paul v. Paul...
Paul v. Slason……….
Pawley v. Gains..
Payne v. Able..
Payne v. Town of Dunham
Peacock v. Wildes....
Pearson v. Crosby.
....
··
...
··
Peck v. Barnum..
Peck v. Hubbard..
•
•
↑
··
•
Page
288
242
.16 Conn. 502..
401
59 N. Y. 647.....
874
..10 S. & R. (Pa.) 109………………..
20
189
..
5 Cranch C. C. 507…….
6 Lans. 303
410
254
337
.13 How. (U. S.) 92..
...36 Pa. St. 28…….
16 Muss. 299...
10 N. H. 103..
.29 Vt. 391 …….
857
360
279
3 Bos. & Pull. 288, 289…………. 203
.0 La. 169………..
237
3
.64 N. C. 118....
..6 Ill. 411..
402
259
....19 Pick. 231
.....9 Vt. 820....
........104 Mass. 104..:
229
431
.11 Iowa, 104……….
303
.11 Iowa, 104..
804
.42 Ind. 121; 15 Barb. 546.. 161
.13 Vt. 235.
441
187, 221
809
82
25 Pa. St. 71………………
..289, 291
9 Ired. 96...
290
833
12 Ark. 158.....
··
.1 Cranch (U. 8.) C. Ct. 853.. 185
..10 Abb. 82.……………….193, 229, 244
.5 Bosworth, 518………………..833, 244
....6 Barb. 537..
63
.7 Ired. 483..
.82 Vt. 148.…….
22 Me. 234...
•
...10 N. H. 117......
•
7 Paige, 437……..
.23 Ill. 801..
11 Ala. 472..
·
...7 Blackf. 500..
..13 Cal. 434...
··
.22 Vt. 231
23 Me. 261...
850
434
242
353
..
....
433
...1 Overt. (Tenn.) 208....... 840
.7 Bush, 844..
414
20 III. 128
117
•
•
8 Halsted (N. J.) 179...... 185
201
857
99
....24 Vt. 75.
••
.20 Vt. 698..
...
670
TABLE OF CASES.
Peck v. Land..
Peck v. Sill...
Peckham v. North Parish, &c.……..
Peck v. Peek....
Pelan v. Do Berard.
Pell v. Tredwell...
Pelletreau v. Smith..
Pellman v. Hart………
Pendleton v. Perkins..
Penhallow v. Dwight..
Pennington v. Clifton.
Pennington v. Yell...
Pennsylvania v. Ravenel
People's Bank v. Mechanics'
Bank...
People v. De Camp..
People v. Hubbard.
People v. Johnson……
People v. O'Brien...
l'eople v. Palmer…….
People v. Reeder..
People v. Sutherland....
People v. Townsend…….
People v. Utica Ins. Co..
People v. Warren....
Perkins v. Bragg.
Perkins v. Church.
Perkins v. Norvell...
Perley v. Foster.......
Perminter v. McDaniel….
Perrin v. Leverett...
Perrin v. Serjeant......
Perry v. Coates..
Perry v. Lewis..
Perton v. Roburt….
Peter v. Butler....
Pettes v. Spaulding..
Pettit v. Mercer...
Peverly v. Sayles.......
Peyser v. McCormack..
Pezzaler v. Campbell...
Phelps v. Baker…….……….
Phelps v. Curts...
Phelps v. Gilchrist....
Phelps v. Morrison..
··
...
Page
280
447
83
254
827
259
285
363
.49 Mo. 565..
242
234
298
7 Mass. 84……..
11 Ind. 162
.6 Eng. 212...
298
……21 How. (U. B.) 103…………………. 117
Nat'l
...
2 Kelly, 1....
.3 Conn. 157.
..
.16 Pick. 286.....
..
.4 Wend. 802..
13 Iowa, 53……..
.5 Wend. 661...
.....30 Barb. 494..
...1 Pa. St. 263.
··
•
02 How. 422
.12 Hun, 878....
.24 Wend. 869
.14 III. 842...
..
......6 Abb. N. S. 63
.46 Ill. 398....
.25 N. Y. 302..
.81 N. Y. 1....
..6 How. 178…..
.15 Johns. 858.
.5 Hill, 440...
29 Ind. 507...
•
81 Barb. 84.…………
6 Humph. 151.......
•
9 Mass. 112...
.......33 Vt. 184...
9 Mass. 537..
•
1 Hill (S. C.) 267…….
.13 Mass. 128...
49 Miss. 443...
•
.
..2 East 91...
..........1 Leigh (Va.) 285.
21 Vt. 66.....
.......8 B. Monroe, 51........
.........10 N. H. 356...
• A
7 Hun, 800……..
.46 Ala. 85……..
.60 Barb. 107..
··
459
873
408
867
140
809
438
874
873
282
402
809
228
189
427
884
405
807
861
809
247
S
61, 66
857
891
...
821
240
327
448
8 C. L. N. 208.
253
...........8 Foster, 266...........437, 438
24 N. J. Eq. 195...
207
..
TABLE OF CASES."
671
Page
821
272
240
823
..23 Tex. 498.
......11 Mass. R. 212, 249....104, 201
.24 Wend. 889. 192, 193, 195, 240,
466
289
440
72
874
346
249
248
…….7 Gray, 67…...
815
85 Me. 57……..
833
...6 Mass. 242....191, 201, 229, 247
.4 Metc. 44....
446
.1 Porter, 233..
201
..7 Watts. 475.
288
40 Ill. 292........
238
.2 Story, 292..
.435, 436
810
52
.77 N. Y. 589..
..29 Ala, 832...
.49 Barb. 814.............. 281
.1 Miles (Pa.) 812………… … … … … …*-
1 Hilton, 86....
84
245
..3 Kelly, 5..
289
Pitts v. Bullard.
Pitts v. Burroughs..
Pitts v. Hendrix..
6 Al. 733...
...91, 136
•
.234, 298
..6 Ga. 452………………………….
.....4 Allen, 847..
Pittsfield Bank v. Howk..
826
236
Place v. Langworthy...
.13 Wis. 629.
260, 267
Planck v. Schermerhorn.............3 Barb. Ch. 644……………
Planters' Bank v. Walker….
235
Plaisted v. Hoar...
484
.11 Miss. 409……..
........45 Me. 880...
...16 Pick. 553..
Co. v.
408
....17 Hun, 586..
...
Phelps v. Rooney..
Phettiplace v. Sayles.
.4 Mason, 812.
•
Phila, 8. S. Dock Co. v, Lorillard S. Co.54 How. 508..
Philleo v. Smalley.
Phillips v. Bridge..
Phillips v. Cook..
Phillips v. Davis..
Phillips v. Hall..
Philips v. Hunter...
Pickhardt v. Antony
Pierce v. Carleton...
Pierce v. George..
Picrce v. George..
Pierce v. Gray..
Pierce v. Henrie
Pierce v. Jackson..
··
..
...
Pierce v. Partridge...
Pierce v. Pass..
Pierce v. Potter........
Pierce v. Roche...
Pierce v. Strickland.
Pierson v. Freeman....
Pike v. Bright...
Pike v. Wieting.
•
Piscataqua Bank v. Turnley.
Piser v. Stearns....
....
...
Platt v. Brown….
Plume, etc. Manufacturing
Strauss..
Plympton v. Bigelow......
Poe v. Hardie........
·· •
Pollard v. Ross…..
Pollard v. Thomasson..
Polley v. Lennox Iron Works...
Pomeroy v. Moss..
l'omeroy v. Ricketts....
9 Wis. 70....
•
69 N. C. 117,
8 Wend. 610...
•
.2 H. Bl. 403...
.27 Hun, 269....
...12 Ill. 858, 360...
.11 Am. Rep. 814.
.108 Mass. 78...
..
11 Abb. N. C. 180...
.65 N. C. 447…….
5 Mass. 19...
•
...
....
.5 Humph. 50...
..4 Allen, 329...
..15 W. Dig. 25..
27 Hun, 242....
• ....
··
··
266
427
827
341
303
409
876
376
672
TABLE OF CASES.
Pond v. Skidmore.
Pool v. Glover...
Pool v. Reid...
Poole v. Mitchell..
Poole v. Symonds..
Poole v. Webster..
Pooler v. Maples..
Pope v. Haman...
Pope v. Boyd..
Porter v. Bullard..
Porter v. Hildebrand..
Porter v. Parmley..
Porter v. Ryme...
Porter v. Stevens.
Porter v. Williams.
Posten v. Posten..
Potter v. Baker....
...
·
Potter v. Hall…..
'Potter v. McDowell.....……………….
Potter v. Sewell….
Potter v. Van Vranken….
Powell v. Layton...
Powell v. Parker….
Powell v. Williams.
Powers v. Freeman......
Poydras v. Delaware.
Prather v. Bobo........
Pratt v. Bacon.........
Pratt v. Phillips...
Pratt v. Topeka Bank...
Pratt v. Wheeler….
40 Conn. 813
.2 Ired. 129
.15 Ala. 826..
.....1 Hill (S. C.) 404..
....1 N. H. 289
Presnall v. Mabry.
Preston v. Fryer...
Prewitt v. Carmichael.
Price v. Brady………………….
Pringle v. Allen..
Pringle v. Black….
Pritchard T. Ford...
...
9 Cush. 530……….
.9 N. Y. 142…….
.4 Whart. 27.
.....4 Paige, 290...
Potter v. Cromwell.................40 N. Y. 287....
.8 Pick. 878....
..81 Mo. 62....
..54 Me. 142... .....
.86 N. Y. 619…….
•
.8 Metc. (Ky.) 278
.1 Wend. 65 ...
Comb. 217
...
.22 Ark. 533
.26 Me. 448……….
14 Pa. St. 129.
52 N. Y. 185……….
..10 Ind. 146...
.........N. R. 865...
...88 Geo. 644….
….14 A.la. 476…….
.2 Lane. 127..
.18 La. 95....
...
.6 Gray, 520
.....4 Vt. 513..
15 La. An. 524……….
10 Pick. 123
......1 Suced, 543.......
12 La. 537...
•
··
..
··
··
Page
409
238
304
275
434
8
113, 127
.192, 196
241
826
50
258
406
860
261
259
887
248, 249
238
259
439
888
41
409
287
258
364
815
223
453
807
253
840
299
855
247
Prentiss v. Bliss..
...1 Mass. 204..
Prescott v. Tarbell.
Prescott v. Parker.................. 4 Mass. 170
Prescott v. Wells..
....8 Nev. 82.
President, &c. of Bank of Commerce v.
Rutland & Washington R. R. Co...10 How. 1-8.95, 98, 100, 101, 103
..3 Porter, 105...
850
...
88 Md. 221..
.2 La. An. 943..
...21 Tex. 614..
.......1 Hill's Ch. 135 J...
..
J
297
84
833
207
..2 Dallas, 97…..
185
.1 J. J. Marsh. (Ky.) 543………. 51
TABLE OF CASES.
673
Proctor v. Newhall..
Produce Bank v. Norton……….
Providence, etc. Co. v. Thurber..
Pryor v. Smith.
Pryor v. Stone..
Pugh v. Calloway
Putnam v. Hall..
Putnam v. Johnson.
Putnam v. Wise...
Putney v. Day
Pyett v. Rhea..
...
··
Quarles v. Kerr..
Quigley v. Gorham..
•
Randall v. Parker...
Randolph Co. v. Ralls...
Ransom v. Hays..
Ransom v. Miner...
Raspillier v. Brownson.
Raver v. Webster....
Ray v. Harcourt.
Raymond v. Cook.
Raymond v. White..
Read v. Burley.......
Read v. Ware....
Reade v. Livingston.
Ready v. Stewart…………………….
Reddick v. Smith..
..
•
Reddy v. Bego..
Redfern v. Rumney.
Reed v. Eldredge.
Reed v. Jamieson...
Reed v. Ownby.
Reed v. Penrose...
Reed v. Shepardson..
Reed v. Umbarger...
Reid v. Bank of Kentucky..
..17 Mass. 81 ...
67 N. Y. 199..
•
··
….2 R. I. 15……..
..4 Bush, 379..
...19 Tex. 371..
...10 Ohio St. 489..
..8 Pick. 445
.10 Mass. 488
..
.25 Barb. 52..
..17 Ill. 572...
Radcliff v. Wood..
Rao v. Hulbert……….
Ruffensberger v. Cullison..
Ragland v. Rogers....
Raiguel v. McConnell.
.28 Pa. St. 420...
.....
..34 Tex. 617...
25 Pa. St. 862..
Rand v. White Mountain R. R……………….40 N. H. 79…...
Rundal v. Elder..
12 Kans. 257.
.8 Sandf. 69.
18 III. 29…….
..89 Mo. 445….
...8 Sandf. (N. Y.) 692..
....1 Hill, 234..
..6 N. II. 430.
·
.6 Heisk. 130.
··
14 Gratt. 48……..
.5 Cal. 418....
•
• ....
...
...
··
...
Tage
289
266
248
830
825
..11 Kans. 206…….
2 Blackf. 227.
419
446
100
227
250
309
262
814
7 La. 231..
•
.8 Iowa, 502........
..19 Wend. 495...
.....31 Tex. 873
.....7 Cow. 31....
………………….Cro. Eliz. 519, 596...
2 La. An. 498..
8 Johns. Ch. 481…….
200
··
.1 Code R. N. S. 298………..102, 182
.4 IIL 451...
840
139
812
18
291
326
833
852
326
280
236, 237
853
238
892
75, 84
420, 407
259
.. 250
238
20
...83 Miss. 529……..
..1 Cranch C. C. 300
180
.27 Cal. 348.
76
..2 Iowa, 543……..
79
.44 Mo. 2014....
800
··
.2 Grant's (Pa.) Cases, 472... 237
.2 Verm. R. 120…….
200
··
867
389
43
674
TABLE OF CASES
Reidhar v. Berger.....
Remick v. Atkinson………
Remmington v. Cady.
Renard v. Hargous.....
Renard v. Maydore....
Recso R. M. Co. v. Atwell.
Reeves v. Cornly.....
Rew v. Barber.....
Rex v. Bird..
Reynolds v. Fisher...
Reynolds v. Hull...
Rhodes v. McCormick..
Rhoads v. Megonigal.
Rhoads v. Woods..
Rhoner v. The First National Bank of
Allentown...
Rice v. Austin....
Rice v. Beers......
Richards v. Griggs.
Rice v. Groffi..
Richards v. Hazzard…….
Rice v. Southgate..
Rich v. Waters………..
Richards v. Stephenson..
Richards v. Storer....
Richardson v. Ainsworth...
Richardson v. Bushnell..
Richardson v. Rust....
Richie v. McCauley.
Richmond v. Foot.....
Riggs v. Murray.....
Rigney v. Tallmadge.
Riley v. Million....
Rinchey v. Stryker........
Ringgold v. Barley...
Risewick v. Davis
Ritchie v. Putnam….
Robb v. Beaver.........
Robbins v. Butler..
Robbins v. Cooper..
Robbins v. Wells.
Robert v. Adams….
Roberts v. Whiting…….
Robertson v. Forrest.
Robinson's Case…….
...
...
..8 B. Monroc, 160.
11 N. H. 256..
..10 Conn. 44..
..18 N. Y. 259.
.25 How. Pr. 178...
7 L. R. Eq. 347……..
1 Rob. La. 231…….
•
.8 Cow. 272.....
.2 Show. 87...
.48 Barb. 146.
..86 Iowa, 894. .
4 Iowa, 868....
Qua côn
..
•
2 Pa. St. 39...
•
.41 Barb. 471..
..
.14 Hun, 120……….
.17 Mass. R. 206, 7...
.Rice's Digest (S. C.) 75………….
...16 Mo. 416...
.16 Gray, 143....
..22 Pick. 503........
99 Mass. 811....
...114 Mass. 101......
.......20 How. Pr. 521.
.......10 Met. 506......
.58 Pa. St. 116..
...1 Stew. & P. 139........... 262
830
852
860
464
105 Mass. 243
4 Pa. St. 472...
•
..
...
866
821
816
315
200
203
167
291
...17 How. 566..
..4 J. J. Marsh. 895..
.28 N. Y. 45....193, 253, 417, 454
5 Ma. 186...
123
.19 Md. 82.
108
298
280
.8 Lans. 244..
2 Johns. Ch. 564..
..
··
··
……..
13 Wend. 524
8 W. & 8. 107…..
·
•
Page
.... 891
441
194
.182, 195
265
259
138
442
408
413
826
824
883
193, 427
26 How. 15
……….88 Cal. 883..
16 Mass. 186.
....2 Brev. 466
.8 Abb. 406…..
...
**
92
198
64
866
452
24 Ill. 887.....
223
··
...6 Johns. Ch. R. 180........ 207
223
814
297
406
...
.805, 206
TABLE OF CASES.
675
Sal
Robinson v. Ensign..
Robinson v. Holt..
Robinson v. Howard.
Robinson v. Mansfield.
Robinson v. McDonald..
Robinson v. Mitchell
Robinson v. Myers....
Robinson v. National Bank of New-
····
...
…………
berne.....
Robinson v. Plimpton.....
Robinson v. Weeks....
Roosefelt v. Kellogg..
Rothschild v. Boclter..
Page
.6 Gray (Mass.) 800……………………. 339
39 N. H. 557..
403
.7 Cush. 257….
*** 841
13 Pick. 139
•
439
327
862
821
..11 Tex. 385…….
1 Har. 365...
3 Dana, 441.
..
amar pa sch nà
.81 N. Y. 885........... 01
..25 N. Y. 484............ 888
.....6 How. Pr. 161.....-i………… 860
Robinson v. Wiley…………………………………………….15 N. Y. 489…...……………….** 207
Rocheblaw v. Potter..
Roderiques v. Heffernan……………………..
Rodgers v. Bonner.......
Roe v. Gimmell...
.1 Mo. 561...m...
** 273
..5 Johns. Ch. R. 417
******* 199
.45 N. Y. 879.......405, 409, 452
.........1 Hous. (Del.) 9,...……………† 250
…….8 Mich. 277……………………. 5.
Roelofson v. Hatch………
67
Rogers ▼, Arnold...................12 Wend. 80........bee .. 53
Rogers v. Dare,
Wright (Ohio) 186……………………. 272
Rogers v. Ferguson.................32 Texas, 534.....811-814
Rogers v. Hosack,,.......
.18 Wend. 819........ 884
Rogers v. Vail...
.16 Vt. 827....
278
......15 Barb. 53............260, 267
..5 Vt. 263...………………………………. 435
28 Conn. 157...
néepodi,♪ 273
24 N. Y. 463..
• 290
13 W. Dig. 450.... 282
Rokenbaugh v. Hubbell..
Rood v. Scott.....
Rood v. Welch.
Roome v. Phillips..
Roone v. Riley..
...
Root v. Great Western R. R. Co......55 N. Y. 636.
95
Root v. Monroe...
Rose v. Bevan..
5 Blackford, 594... ..... 884
...........20 Johns. 208..108, 112, 113, 130
18 Minn. 861.....
820
..10 Md. 466………………………………….... 241
Rose v. Burgess.....................10 Leigh, 186.......... 273.
Rose v. Post.
Ross v. Clark...
Ross v. Clarke...
……..56 N. Y. 603....
890
32 Mo. 296 …….
..1 Dall 354……..
135
894
Ross v. Heintzen................... 86 Cal 818............ 889
Ross v. Lister..
809
.14 Tex, 469…….
.26 Ill. 221…….
***
***
•
412
...
Ross v. Weber..
Roth v. Wells..………. …………………………………….29 N. Y. 471…………..407, 429, 819
Rothgerber v. Gough.
52 Ill. 436.……...
.21 Ver. 620..
Rowell's Case.
279
188
Rowell v. Kleim.................44 Ind. 290......... ..... 453
Rowles v. Hoare..
Roy v. Bacus...
.16 Barb. 206..
.43 Barb. 310...
..8, 187
362
676
TABLE OF CASES.
Royal Ins. Co. v. Nobles.
Rue v. Alter...
Rue High Appellant
Rundlett v. Jordan….
Runk v. St. John....
Runlet v. Bell...
Runyan v. Morgan...
Ruppert v. Haug..
Russell v. Butterfield.
Russell v. Dyer.
Russell v. Gibbs...........
Russell v. Lewis..
Russell v. Richards.
Russell v. Ruckman..
...
...
Russell v. Tanno.
Russell v. Wilson...
Russell v. Winne….
Rust v. Pritchett..
Ryall v. Rolle...
Ryan v. Cochran…......
Ryland v. Callison........
Saddlesvene v. Arms...........
Sage v. Cartwright.
Sage v. Sleutz……….
Saharas v. Fenlon....
St. Amant v. Beixcedon...
St. James Club, in re...
Page
462
812
108
833, 858
5 N. H. 433.…….
450
.434-436
.151, 156
7 Humphreys, 210…………….
..
.1 Civ. Pro. R. 411..879, 457, 459
.21 Wend. 800....
280
83 N. H. 186.
...
5 Abb. N. S. 54………….
..5 Denio, 119..
2 Doug. (Mich.) 523..
8 Greenl. 48.………….
.29 Barb. 585..
253
.429, 442
337
….1 Fairf. 429……….
248
…..8 Ed. Smith, 419..411, 244, 834
419
866
156
.253, 256
442
..5 Cow. 890...
.15 Mass. 127.
•
11 Rich. 803
18 La. 867……….
..87 N. Y. 591...
5 Harr. 260....
...
1 Wils. 260...
•
....82 How. (N. Y.) 280..
9 N. Y. 49...
··
247
......11 Abb. N. C. 111 n........ 886
.54 Mo. 513...
.258, 294
883....
.2 Johns. R. 468.
St. John v. Standring...
St. Louis Perpetual Ins. Co. v. Cohen. 9 Mo. 421....
Sallee v. Waeker....
……….17 Ala. 432.
•
·
...
....23 Ohio St. 1..
......5 Kans. 592..
...8 Sandf. 703.
..2 De Gex, M. & G. Ch. R.
84
290
245
828
869-871
224
196
89
206
40, 51
241
274
51
Salt Springs National Bank v. Wheeler 48 N. Y. 492.... ........
.8 Met. (Ky.) 259…….
.20 Vt. 632...
891
Samuel v. Salter...
Sanborn v. Kittredge.
Sanders v. Hamilton....
Sanders v. Hughes.
Sanders v. Pepoon...
.4 Fla. 465...
Sanderson v. Edwards... .......16 Pick. 144..
Sanderson v. Ralston................2 La. An. 813............. 117
Sanford v. Bonner....
Sandford v. Supervisors of N. Y......15 How. Pr. 173………………………….
Sargent v. Carr........
272
430
.12 Cal. 36…...
420
222
244
Satow v. Reisenberger………………………………
.12 Mo. 896...
25 How. 164..
871
.8 Dana (Ky.) 552...........
.2 Brev. 495.
TABLE OF CASES.
677
A
Savage v. Murphy……
Savage v. Supervisors of Crawford
Co.....
··
Saul v. Kruger..
.9 How. 569………….
Saunders v. Columbus L. I. Co.......43 Miss. 583............... 800
.84 N. Y. 508…..
260.
Savery v. Browning.
Sawin v. Guild...
Sawyer v. Thompson..
Saxton v. Williams..
Sayward v. Drew....
Scales v. Scott..
Schaffer v. Cadwallader...
Schatzill v. Bolton..
Schermerhorn v. Miller..
Schicb v. Baldwin..
Schlemmer v. Myerstein.....
Schlussel v. Willett........
Schneider v. Staihr……….
Schoonmaker v. Spencer..
Schrader v. Wolfin.....
Schroeder, in re...
Schrugham v. Carter..
Scofield v. White....
Scorell v. Boxall..
Scott v. Doneghy….
Scott v. Hill. . . .
Scott v. Manchester Print Works…..
Scott v. Scholey..
Scott v. Whittemore.
Sculley v. Kearns..
Seaman v. Wall...
...
...
··
Searcy v. Platte Co........
Sears v. Hanks......
..
Second Ward Bank v. Upmann....
Seeley v. Brown....
Seeley v. Gwillim.........
Selleck v. Phelps.
Seward v. Platts....
Sexton v. Fleet....
Sexton v. Marshall.....
·
··
···
..10 Wis. 49.…….
..18 Iowa, 246..
.1 Gall. 485..
236
800
...232
.4 Foster (N. H.) 510…………………. 835
..15 Wis. 292…….
242
.....6 Me. 263..
352
253
237
204
.13 Cal. 77....
.36 Pa. 126...
.2 M'Cord, 478……………………………….
.2 Cow. 439...
.13 Abb. 469..
.....19 How. 412.........
34 Barb. 615..
...
•
•
.20 Mo. 209..
..54 N. Y. 866........
.262-454
297
.165, 171
242
.21 Ind. 238...
.6 Cowen (N. Y.) 603………………. 140
.12 Wend. 131. 192, 193, 197, 247
.29 Vt. 830...
833
251
………………
.1 Younge & J. 398.
..17 B. Mour. 821.
..8 Mo. 88…….
.44 N. H. 507…….
..8 East, 467...
*289
435, 439
..7 Fost. 809...
.14 La. An. 826............. 253
54 How. Pr. 47............ 254
10 Mo. 269...
194
………….14 Ohio St. 298.........303, 805
.12 Wis. 499.…….
287
14 Pick. 177…….
447
.40 Conn. 106...
815
833
441
862
800
156
368
.251, 234
855
.236, 805
Sexton v. Monks..
Shaffer v. Sundwall.
Shannon v. Jones…….
Sharp v. Clark…………………
2 Mass. 91....
Sharp v. Contra Costa Co............34 Cal. 284..
...11 Wis. 880..
.20 N. H. 476……
.....15 How. Pr. 106.
..6 Bush (Ky.) 429.
...16 Mo. 85...
.....83 Iowa. 579........
12 Ired. 206...
Page
244
………
………....
297
412
898
868
261
800
678
TABLE OF CASES.
Sharpe v. Crispin..
Shaver v. White.......
Shaver v. W. U. Tel. Co....
............1 P. & D. 611..
.....6 Munf. 110...
57 N. Y. 459.
...55 Barb. 889...
..20 Me. 266…….
.....14 How. 94...
50 N. H. 516.
..17 Hun, 129...
.4 Den. 217..
..85 N. Y. 279...
429,
268
249
...17 W. Dig. 105.........392, 393
12 Iowa, 570....
888
.2 Denio, 174.…….
251
.3 Gratt. (Va.)978……………..257, 268
296
272
802
208
.4 Keyes, 500……..
.2 Green (N. J.) 217....
།
..16 Ind. 224..
Shaw v. Davis…......
Shaw v. Laughton….....
Shaw v.
Lawrence.
Sheafe v. Sheafe……….
Shehan 7. Mahar..........
Sheldon v. Dodge..
Sheldon v. Edwards.
Sheldon v. Sabin...
Sheppard v. Collins..
Shephard v. Philbrick.
Sheppards v. Turpin..
Sheridan v. House..........
Sherron v. Humphreys...
Shetler v. Thomas......
Shiel v. Healy...
....6 How. Pr. 73.
Shinn v. Zimmerman.......……………………. 8 Zab. 150………………….
855
17 Geo. 175..
880
...27 Pa. St. 123...
259
8 Q. B. 858..
23
287
Shockley v. Davis........
Shontz v. Brown…….
Short v. Stone...........
Shottenkirk v. Whecler.
.8 Johns, Ch. 275…………
Shugart v. Orr…………….
........5 Yerger (Tenn.) 192....... 140
Shuler v. Bryson....................65 N. C. 201..
Shultz v. Hoagland..
……………………..85 N. Y. 464..
Shumnay v. Rutter........
Shuttleworth v. Bruce.....……………………….7 Rob. 160..
Sias v. Badger.…………….
201
.265, 200
403
.8 Pick. 443..
803
..6 N. H. 803.
452
Sibell v. Remsen.
282
Sibert v. Humphries..
844
Sibley v. Story…………
437
275
..
..
..83 N. Y. 95..
….4 Ind. 481………….
.8 Vt. 15...
.12 Ala. 213...
•
Page
117
198, 208
863
:811, 820
437
•
•»
18 N. Y. 855…….
29 Ala. 830…..
··
..
Simerson v. Bank...
Simons v. Jacobs........
..15 La. An. 425..
..138
897
238
321
Simpson v. Burch…………… ……………………….
..4 Hun, 815.....
Simpson v. Hartopp................. Willes, 513………..
Sims v. Reed....
12 B. Monr. (Ky.) 53
Skarf v. Soulby.....……………………………………….1 Mac. & G. 864……………………………. 259
364...
Skiff v. Stewart...
89 How, Pr. 885........... 867
Skinner v. Oettinger..
14 Abb. Pr. 109...
107
Skinner v. Stuart....................89 Barb. 200........21, 193, 428
Skinnion v. Kelley
170
Skipper v. Foster…..
856
Skowhegan Bank v. Farrar... ......46 Me. 293…………………………………….. 837
Slacum v. Pomeroy………… ……………………………..6 Cranch (U. 8.) 221………………. 101
887
454
JAN
TABLE OF CASES
679
Slater's Appeal..
Sloan v. Stanley..
Slocomb v. Blackburn..
Slocum v. Seymour..
Sly v. Finch.....
Smith v. Allen....
Smith v. B. C. M. R. R………
Smith v. Barker...
Smith v. Beattie....
Smith v. Benson..
Smith v. Blatchford.
Smith v. Boyd..
Smith v. Brown..
Smith v. Cahoon....
Smith v. Cherrill....
Smith v. Clarke..
Smith v. Cooper...
Smith v. Eakin.
Smith v. Gettinger..
Smith v. Gibbs.......
Smith v. Hill.
Smith v. Hinson..
Smith v. Howard.......
....
...
··
•
...
Smith v. Howard…….
Smith v. Hurst...
Smith v. Ingles.....
Smith v. Leavitts.
Smith v. Longmire.
Smith v. Lowell...
Smith v. Luce,,
Smith v. Mitchell.
Smith v. Orser....
....
···
Smith v. Osgood....
Smith v. Riley...
Smith v. Rogers………….
Smith v. Sanborn..
Smith v. Smith........
Smith v. Slade...
Smith v. Sterritt.
Smith v. Stokes.
Smith v. Tritt……….
Smith v. Wadleigh..
Smothers v. Holly
Snedeker v. Warring...
..20 Penn. St. 169..
.11 Ired. (N. C.) 627.
.18 Ark. 809.....
.36 N. J. L. 138…..
..Cro. Jac. 514……….
.89 Miss. 469...
..83 N. H. 337..
..10 Mc. 458..
.81 N. Y. 542..
··
··
.1 Hill, 176...
2 Ind. 184..
•
..........6
...
··
.10 Daly, 149.
14 N. H. 67…….
..37 Me. 281……….
259
.4 L. R. Eq. 890
9 Iowa, 241……….
832
.27 Hun, 565...
256, 257
.2 Sneed (Tenn.) 450.....892, 891
8 Geo. 140.…….
446
··
..
Gray (Mass.) 298......... 815
289
289
1 Sheld. 832….. 203, 265, 832
.20 How. Pr. 223……………....
208
22 L. J. Ch. 289..
263
.....1 Oregon, 43…….
200
..10 Ala. 03...,
453
24 Hun, 257............254, 454
.6 N. H. 67....
259
2 McLean, 446……
.4 Heisk. 250……….
··
•.
...
…..,47 Ill. 831..
24 Mo. 201…….
•
1 East, 863, 367...
..1 Dev. & Bat. 241
.18 Me. 95.....
··
14 Wend. 237..........176, 871
.31 Me. 287.....
441
..42 N. Y. 132, 191, 145, 192, 229,
247
447, 404
139
.12 N. Y. 170…….
•
46 N. H. 178...
.82 Ga. 85…….
16 Geo. 479............. 820
....6 Gray, 184...
405
43 N. R. 533...
..........57 Barb. 637....
…………………
*
Page
286
•
285
442
250
433
249
335
355
271
249
862
270
440
353
82
.811, 812, 814
362
.192, 196
251
826
801
248
680
TABLE OF CASES.
..
··
Snell v. State..
Snyder v. Davis
Snyder v. Hitt.......
Solomon v. Maas......
Somerville v. Brown....
Somerville v. Somerville....
..5 Vesey, 750-788.
.85 Vt. 515....
Soue v. Austin………
Southard v. Benner...
..72 N. Y. 425.
South Carolina R. R. Co. v. McDonald.5 Ga. 531..
..3 Conn. 52…….
..
261-265
265
857
229
Southmayd v. Russ.....
Southwick v. Bank of Memphis... 7 Hun, 96………
Spaulding v. Strang.
.33 Barb. 235..
Spaulding v. Strang.
.37 N. Y. 135...
Speak v. Kinsey.....
17 Tex. 801..
Spencer v. Blairsdell……
4 N. H. 198...
Spencer v. Geissman...
.87 Cal. 99…...
Spencer v. Jackson...
2 R. I. 35………..
Spencer v. Rogers Locomotive Works..18 Abb. 180............... 403
Spencer v. Williams...
Spicer v. Ayres........
Spies v. Boyd
827
262
...
.2 Vt. 209....
.435, 440
254
257
...
...
··
.2 Swan, 844..
1 Hun, 350....
1
..2 Dana, 402..
...2 Hilt. 179...
.....5 Gill, 899.
··
…..53 How. Pr. 405…….
..1 Ed. Smith, 445.
...
...
Sprague v. Hartford, &c. R. R. Co...5 R. I. 233………
Spriggs v. Camp.....
Springer v. Foster........
Springer v. Lewis..
Springer v. Martin.......
Srodes v. Caven........
Stadtler v. Wood…….
Stainford v. Fullerton...
Staines v. Johannot.
Stainbough v. Yeates....
Staniels v. Raymond..
Stanley v. Drinkwater.
Stanton v. Holmes...
Staples v. Bradly.
Staples v. Fairchild….
Stark v. Parker...
Starr v.
Kent...
Starr v. Lyon……………………..
447
Starr v. Moore..
431
...........8 Harris & McHenry, 847... 65
...
State v. Beall.....
State v. Berry.
State v. Chamberlin..
State v.
12 Mo. 876….
.54 Mo. 338...
889
884
Elliott.
.11 N. H. 540….
250
State v. Hallott…………………………………………………….8 Ala. 159..........…….119, 122
...
.2 Speer, 181...
1 Story, 601...
22 Pa. St. 191…….
·
...
.66 N. C. 55..
8 Watts, 258....
..24 Tex. 622..
··
.2 Rawle, 161....
...4 Cush. 814.
......18 Mo. 220...
.....1 Bos. & Pul. 200..........
......120-121
434
256, 453
.217, 241
228
92
.43 Me. 468..
.4 Day (Conn.) 87…….
23 Conn. 167...
......3 N. Y. 41...
..2 Pick. (Mass.) 207..
.2 Code Rep. 80……….
5 Conn. 538...
......8 McL. 854....
··
Page
433
808
278
58
261
•
···
89
242
188
815
241
241
270
208
9
235
333
439
..143, 185
294
807
29
58
TABLE OF CASES.,
681
State v. Hug..
State v. King...
State v. Lawson
State v. Miller.
State v.
Nelsou...
State v. Phoenix Bank.
State v. Romer...
State v. Schulein....
State v. Steibel..
State v. Thackman….
State v. Wilson.
··
··
...
..44 Mo. 116...
.14 Mo. 238.........
·
1 Eng. 269..
.48 Mo. 251...
1 Ind. 522
84 Conn. 205....
..44 Mo. 99....
··
45 Mo. 521
•
.81 Md. 87..
..1 Bay, 858..
..56 Mo. 492...
Steadman v. Palling..
.3 Atk. 423..
Steam Packet Company v. Sickles....18 How. (U. S.) 419.....
Stearns v. Dillingham...
..22 Vt. 624.....
Stebbins v. Peeler...
.29 Vt. 289.
.29 Vt. 289
Stebbins v. Peeler.....
Stedman v. Gooch..................1 East, 146..
..
··
..1 Taunton, 424.
9
.82 Barb. 198
264
..4 Wend. (N. Y.) 604....... 29
.7 Dana, 257…….
275
.14 How. (U. S.) 528....230, 232
.20 Vt. 627
278
.276, 277
.41, 54
...
..
Steel v. Campbell.
Stein v. Fisher..
Stephens v. Beard...
Stephens v. Barnett......
Stephens v. Cady.
Stephenson v. Clark.....
Stephens v. Gorham...
Stephenson v. Hart…………
Stephenson v. Walden...
Stern v. Fisher...
Sternberg v. Shaffer.....
Steuben Co. Bank v. Alberger........75 N. Y. 179.......... 871, 460
Steuben County Bank v. Alberger....78 N. Y. 252.............. 459
Stevens v. Fisher....
.5 Cal. 227
4 Bing. 476.
•
......24 Iowa, 84..
··
... 244
264
203
19 Wend. 181...
273
Stevens v. Gladding
Stevens v. Gladding….
Stevens v. Hollingsworth....
Stevens v. Legrow....
Stevens v. Middleton.
Stevens v. Stevens....
Stevens v. Stevens.......…………
Stevensɔn v. Robbins….
Stevens v. Irwin…..
Stevens v. Irwin........
Stevenson v. Robbins
Stewart v. Bealo......
Stewart v.
Brown...
Stewart v. Cole…..
..
..32 Barb. 198.
.11 Johns. 513..
4
19 Me. 95..,
·
··
....
17 How. (U, §.) 447.
232
.17 How. (U. S.) 447 ....... 230
.7 C. L. N. 198.
325
289
.162, 374
194, 440
330
20
278
277
384
258
311
156
..26 Hun, 470.
...89 Conn. 474, 72..
......10 Allen, 148.........
5 Mo. 18....
•
..15 Cal. 503…….
15 Cal. 503....
5 Mo. 18...
68 N. Y. 629.
......87 N. Y. 850..
..46 Ala. 646...
...
•
276
287
401
431
93
... 809
279
64
408
839
297
29
52
332
840
66
.....
....
Page
237
·
·
682
TABLE OF CASES.
Stewart v. Crosby..
Stewart v. Doughty….
Stewart v. Nunnemacher
.........2 Ind. 47
Stewart v. Scannell.................8 Cal. 80……..
Stewart v. Slater…..
Stewart v. West..
Stief v. Hart..
Stileman v. Ashdown....
Stiles v. Shumway...
Stockett v. Watkins.
Stockwell v. Campbell
Stokes v. McAllister
Stone v. Dean...
Stone v. Miller.....
Story v. Moon........
Streeper v. Eckart....
Strock v. Little...
Strong v. Do Forest.....
Strong v. Skinner.
Strong v. Taylor.
Strother v. Butler....
Sturtevant v. Ballard.
Succession of Norton.
Summers v. Glancy.
Sumpter v. Wilson...
Sunbolf v. Alford.…………………………….
Supervisors v. Durant..
Supervisors v. St. Clair Co..……………..
Sutcliffe v. Dohrane
Sutton v. Shearer......
..
Taaks v. Schmidt.....
Taber v. Nyer....
Taffe v. Warnick...
Taffts v. Manlove……
Taintor v. Williams.
..50 Me. 130..
.Q Johns. 108….
•
...
.6 Duer, 83..
·
..1 H. & J. 536..
.1 N. Y. 20..
.2 Atk. 481...
..10 Vt. 435.
..2 Gill & J. (Md.) 826
.......89 Conn. 862...
2 Mo. 163...
.5 N. H. 508..
..62 Barb. 430.
.8 Dana's R. 331, 334…………
2 Whart. 802…….
.45 Pa. St. 416………
.15 Abb. 427……….
67
890
263
245
52
273
803
889
888
820
9 Wall, 415....
237
•
.3
3 McLean, 580............. 287
.18 Ohio, 181....
191
...1 Grant's Cases, 207........ 277
...51 Ill. 857……….
408
457
85
..4 Barb. 546
2 Hill, 326…….
..17 Ala. 733
··
9 Jolins. 337...
.18 La. An. 86…….
.8 Blackf. 861……….
....1 Ind. 144
.....8 M. & W. 248........
.5 Mo. 241....
261
Suydacker v. Brasse........
Suydam v. Huggeford..
Swagar v. Piercc.........
Swearingen v. Slicer...
Sweeny v. Allen......
Sweeney v. Rogers.......
Sweringen v. Eberins....
Swezey v. Bartlett.......
Swift v. Thompson..... ............9 Conn. 93…………………………………………
..1 Pa. St. 880..........855, 856
.11 Abb. N. C. 110 n........ 886
..7 Mo. 421...
189
.3 Abb. N. S. 444..
93....
Page
287
.251, 253
433
279
242
.201, 852
832
254
279
51
248
298
.833, 200
.8, 446
203
278
.23 Pick. 465...
8 La, An. 435..
··
‚18 Abh. 807….
.12 Pick. 105..
.......8 Blackf. 111..
14 Cal. 47...
,7 Conn. 271...
458
248-
890
852
248
408
429
TABLE OF CASES.
683
..
Page
8 Paige, 219....………………..285, 290
·
14 Allen, 177.......... 248
..8 Abb..N. S. 287……………………….. 159
279
185
277
291
Talbot v. Chamberlin.....
Talbot v. Whipple..
Talcott v. Rosenberg.
Talcox v. Wilcox....
Taliaferro v. Lane........
Tallman v. Kearney.
Tally v. Reid...
Tanner v. Billings...
Tappan v. Bailey..
Tarbell v. Bradley..
Tarbell v. Griggs...
Tarbach v. Marbury......
Tattan v. G. W. R. R. Co…….
Taylor v. Boulware....
819
222
84
242
254
41
828
Taylor v. Carryl.……….
839
Taylor v. Cornelius..................60 Penn. 187..
287
Taylor v. Eubanks..
259
... 123
...8 A. K. Marsh. 239..
Taylor v. Knox.........
..1 Dallas, 158
Taylor v. McDonald………………………………………….4 Ohio, 149…………………………………….. 194
Taylor v. Mills...
Taylor v. Mixter…….
276
...2 Edw. Ch. 818...
..11 Pick. 841..
.84 Mo. 81....
Taylor v. Myers. 、、、、 . . . . .
Taylor v. Nichols..
..19 Vt. 104..
54 How. 27
Taylor v. Reed...
878
..80 Mo. 129..
402
Taylor v. Troncoso...........……………….76 N. Y. 599………………………..874, 896
Taylor v. Wimer.
Teaff v. Hewitt..
Temple v. Cochran.....
248
.1 Ohio St. 530………
.13 Mo. 116....
189
...8 Minn. 419.............. 813
.13 How. 28...
....4 Wend. 462…..
853
293
Temple v. Scott................
Ten Broeck v. Bloo...
Ten Eyck v. Walker
Tenney v. The N. E. Protective Union 87 Vt. 64....…………………………………. 222
Terril v. Rogers……………. ……………………………….8 Haywood (Tenn.) 203..... 72
Terry v. Butler............... 48 Barb. 895.......263, 266, 272
Tertelling, In reass
….2 Dill. 839...
.85 Barb. 620……….
824
434
Terwilliger v. Wheeler.......
"Thacher v. Bancroft........…………………….15 Abb. 243……………….188, 448, 450
Thatcher v. Powell..
6 Wheat. 119..
284
434
Thayer v. Hutchinson.
Thayer v. Pratt..
.13 Vt. 504.…….
....47 N. H. 470..
855
"Thayer v. Southwick.......…………………….8 Gray, 229.
853
Thayer v. Tyler......
….5 Allen, 94….
849
Thayer v. Willett..
.9 Abb. 825…..
141
202
The King v. Rock..................2 Price, 198.
The King v. Sanderson.......... ..Wightw. 50, 53……………………………. 200
53....
9 Conn. 134………….
.23 Ala. 869
..3 S. C. 412..
...72 N. C. 836..
18 Wis. 163…..
·
4 Metc. 535...
··
...27 Vt. 535..
..8 Paige, 207.
.2 Vern. 509.…….
………..2 El. & EL. 844...
...17 Tex. 74..
••
..24 Pa. St. 259…….
...
...
•
...
800
149
440
684
TABLE OF CASES.
Thorn v. Knapp...
Thorn v. Thorn…….
Thorn v. Woodruff
Thomas v. Bowman..
Thomas v. Sampson.
Thomas v. Walker..
Thompson, in re........
Thompson v. Barber…….
Thompson v. Brown....
Thomson v. Carper...
Thompson v. Craigmyle.
Thompson v. Culver..
Thompson v. Culver
Thompson v. Friedberg..
Thompson v. Rose....
Thompson v. Stewart......
Thompson v. Taylor...........……….
Thompson v. Thornton...
Thompson v. Van Vechten......
Thoms v. Thoms.....
a
...
....
..
Thorndike v. City of Boston.
Thorndike v. De Wolf..
Thornton v. Boyden..
Thornton v. Pigg..
Thornton v. Tandy.
Thurber v. Blanck..
Thurneyssen v. Vouthier.........
Thurston v. Maddocks..
Tibbitts v. Townsend...
Tice v. Annin...
Tiffany v. Glover.......
Tiffany v. Lord...
Tift v. Barton…….
Page
.80 Ill. 84...
285
.3 Pa. 69....
298
..6 Humph. 93..
293
........1 Wend. 44...108, 109, 114, 115
299
.840, 839
11 Humph. (Tenn.) 542..... 841
.4 B. Mon. 892........
234
413
458
886
246
Tillotson v. Wolcott.....
Tilson v. Terwilliger..
Tim v. Smith..
Tingley v. Bateman...
Tirrell v. Canada..
Titman v. Moore..
Tobias v. Francis.
Todd v. Bucknam........
Todd v. Shouse……….
Tolano v. National Steam
Co.......
Tomlinson v. Collins..
12 N. H. 563.
•
..38 Barb. 442…….
.24 How. 286
………………..54 How. 519.
..16 Conn. 71...
8 Conn. 171..
•
.17 Pick. 462..
•
··
837
..13 Me. 420…….
195, 360
.2 Ala. 808..
288
258
.27 N. Y. 508
....45 Miss. 263.....
328
.42 N. Y. 474…….
53
327
.14 Iowa, 53 ...
….5 Ark. 55……….
14
.1 Metc. (Mass.) 242.108, 112, 122
.6 Pick. 120.
.352, 855, 359
..31 Ill. 200..
825
...24 Mo. 249.
281
.89 Tex..544……
272
50 N. Y. 80....254, 417, 454, 455
.1 Miles (Pa.) 422…………….. 140
...
.6 Allen, 427...
.827, 828
15 Abb. (N. Y.) 221………………. 108
..2 Johns. Ch. 125...
288
...3 G. Green, 387..
8
384
.65 N. Y. 810……….
.4 Den. 171.
..48 N. Y. 188..
280
··
811
277
56 N. Y. 273……
..4 Law Bull. 54..
167
835
833
828
249
··
......10 Mass. 843....
....
25 Tex. 455.……………….
.43 Ill. 170...
·
.8 Vt. 425..
•
...
·····
11 Me. 41
.14 La. An. 426.....
...
•
849
... 26
Navigation
.5 Robertson (N. Y.) 818.,41, 54
…………………………..20 Conn. 864.......
839
TABLE OF CASES.
685
불
​...
Tomlinson v. Rowe..
Tomlinson v. Stiles...
Tompkins v. Fonda..
Toms v. Warson.
Topping v. Lynch
Torrey v. Minor
Tourville v. Pierson....
Town of Decorah v. Dunston Bros....84 Iowa, 360....……………………….
···
..
··
•
Trudear v. McVicar….
True v. Morrill…….
Truitt v. Ludwig.
Truslow v. Putnam.
Tryon v. Mansir..
Tucker v. Clisby...
Tudor v. Perkins...
Tullis v. Orthwein..
Tunstall v. Means...
Turner v. Austin……..
Turner v. Armstrong.
Turner v. Fendall....
Turner v. Jacox...
Turnpike v. Jarret...
Twinan v. Swart...
Tyffe v. Beers........
Page
482
406
298
3
280
298
.823, 328
86
.82 Vt. 747 ...
858
.2 Abbott, 299..........114, 124
820
224
83 N. H. 345...
.19 Wend. 424..
.5 Wall, 826..
.82 N. Y. 209...........264-265
236
.Hill & Den. 410…….
.4 Dutch. 201……….
..4 Paige, 448....
...66 N. C. 417.
.2 Rob. 484.
Towne v. Leach…………
Towner v. Church..
Towns v. Pratt...
Townsend v. Goewey.
Townsend v. Greeley
Townsend v. Stearnes....
Trapnall v. State Bank..
Trask v. Green...
Trassnall v. McAfee………
Travis v. Tartt....
….18 Ark. 53…….
.9 Mich. 858...
.....8 Metc. 34....
8 Ala. 574…….
··
Trawick v. Harris......
..41 N. H. 12.
...8 Tex. 812.
Treadway v. Ryan..................3 Kansas, 437.....………………….
Treadwell v. Brown.
Treadwell v. Davis..
Treon v. Emerick..
Trimm v. Marsh.....
Trinder v.
Watson..
.84 Cal. 601...
.......6 Ohio, 891..
........54 N. Y. 599...
Trombly v. Clark.
....
.8 Burr. 1567..
.13 Vt. 118.
Trovillo v. Shingles..
10 Watts, 438
Trow's Printing, etc. Co. v. Hart.....9 Daly, 413 (aff'd, see 85 N.
273-321
Y. 500)..........878, 879, 460
287
846
442
332
321
852
566
$09
855
339
261
230
269
.1 8. & M. Ch. 489
•
39 III. 446....
··
··
...
··
...1 La. An. 426..
......28 Vt. 672...
.25 Pa. St. 145...
.4 Abb. Dec. 425…….
.2 Allen, 219…..
.12 Pick. 22.
...
..8 Day, 864..
...5 Minn. 877.
.5 Ark. 700……….
··
··
18 Iowa, 4.
•
..16 Mass. 181.....
.9 Yerg. (Tenn.) 412........
··
.1 Cranch, 117..
.40 N. Y. 470.
..4 Ind. 215……….
4 Lans. 203...
243
...255, 298
889
.14, 857
..
328
64
857
833
246
.287-288
82
355
298
230, 809, 839
827
686
TABLE OF CASES.
Tyler v. Gould………
• l?
.48 N. Y. 682..
.21 Barb. 198...
Tyler v. Strang.
Tyler v. The Ætna Fire Ins. Co......12 Wend. 507..
Union Bank v. U. S. Bank..
s
...4 Humph. (Tenn.) 869...... 89
United States v. Conyngham.........4 Dall. 85....
United States v. Graff……
United States v. Hack..
.67 Barb. 804...
429
.. 408
8 Peters (U. S.) 271, 273,
270....
..191, 200, 241
..3 Cranch, 73.............. 273
.......3 Binn. 894..
863
..... 206, 858
272
•**
United States v. Hooe....
United States v. Vaughan..
Upham v. Naylor..
Upson v. Raiford...
•****
✰✰
..
9 Mass. 400…...
....29 Ala. 195...
Van Allen. v. Sampson...
401
210
••
Van Alstyne v. Cook…………
Van Alstyne v. Erwin…………………………………….11 N. Y. 840, 841..141, 137, 160,
··
*
172, 174
Van Arsdulo v. Krun.......... 9 Mo. 897.
446
Van Buren v. Loper………………………………………..29 Barb. 888………………………..313, 814
Van Buskirk v. Hartford Fire Ins Co.14 Conn. 583..
366
Van Clevo v. Groves......
.8 Green's Ch. 830.......... 293
Vanderheyden v. Gary…………………….......38 How. 867............... 819
Vanderpool v. Van Allen...
Van Houten v. Reilly….
Van Hook v. Walton....
Van Kirk v. Wilds……
Van Kleeck v. Le Roy………....
248
10 Barb. 157.
.14 Miss. 440…….
.28 Tex. 59...
299
272
11 Barb. 520..
20
283
.87 Barb. 544; S. C., 4 Abb.
Dec. 479..
………………..01 N. Y. 22..
..13 Peters, 204..
2 Pet. 137....
884
287
250
Van Loon v. Lyons.......
Van Ness v. Hyatt.......
Van Ness v. Pacard……….
Van Nest v. Yoe……………………………………….....1 Sandf. Ch. 4.....260, 261, 267
Van Pelt v. Lettler..
10 Cal. 894...
Van Rossum v. Walker..………………………… .11 Barb. 237...
Vansyckle v. Richardson…………………………….13 Ill. 171…….
Van Wyck v. Bauer……………………………………….9 Abb. N. 8. (N. Y.) 142... 71
Van Wyck v. Pine………………………………………………2 Hill, 600..
277
*** 268
299
.407, 429
Van Wyck v. Seward….......………………..6 Paige, 62..
.254, 259
Varuum v. Abbot………
….12 (Mass.) 474……
299
Verry v. Richardson…………………………. ……..5 Allen (Mass.) 107.…………………. 2871
Viall v. Eliss.
9 Pick. 13...
849
Victor v. H. F. Ins. Co.............83 Iowa, 210....………………………. 850
13 La. 800....
227
Vigers v. Sainet.
Vinton v. Bradford…..
15 Mass. 271....
809
5 W. Dig. 288...
..25 N. Y. 489....
..
..
c
··
...
Page
363
271
240
………..
TOD
TABLE OF CASES:
687
Tage
Vogle v. New Granada, etc. Co......1 Houston (Del.) 294………………. 211
…..54 Mo. 577…….
811
194
6 Blackf. 232..
Vogler v. Montgomery
Voorhees v. Hoagland..
Voorhees v. McGinnis.
Von Hein v. Elkus.....
Vorse v. Phillips...
Vreeland v. Blunt…….
Vreeland v. Brown..
.48 N. Y. 278...........248–249
......8 Hun, 516…………………………………. 266
..87 Iowa, 428.
880
• 363
.6 Barb. 182……….
...1 Zab. (N. J.) 214..
... 189
Wade v. Jones
Waddell v. Cook.....
Wadsworth v. Clark….
Wadsworth v. Havens...
Wadsworth v. Martin, garnishee, the
Queen of Spain, defendant.........cited in Locke. on Attach-
.....
..20 Mo. 75.
804-305
•••
..2 Hill, 48.193, 246,191, 192, 463
....14 Vt. 139........ ..855, 857
3 Wend. 411.
254
•
...
ments, 8
7 Daly, 875…………da
3 Mass. 558....
•
Wagner v. Jones......
Wakefield v. Martin....
Wakeman v. Grover................4 Paige, 23
Walcott v. Hendrick..
15
256
SCA
261*
143
403
274
**** 246*
.4 E. D. Smith, 440..... 863
81 Tex. 646....
* 443
2 Mc. 270………COŠČKI
11 Ala, 273
....
··
•••
…………….. ...8 Texas, 406
.2 2 Fost. 190.………………………………
23 Cal, 540..……………………………..
.10 Cal. 378...
Walcott v. Keith...
Walden v. Murdock.....
Waldman v. Broder..
Waldron v. Baker.....
Walker v. Anderson...
Walker v. Foxcroft..
Walker v. McGehee.....
Walker v. Roberts....
Walker v. Sherman.....
Wallace v. Barker......
Wallace v. Castle..
Wallace v. Finberg.
Wallace v. Galloway.
******** 889′
*******…. -850′
...4 Richardson (S. C.) 501, 83
...20 Wend. 636……………………….247, 248
.8 Vt. 440...
****** 234
...68 N. Y. 870..... 874
.46 Tex. 35.... might see. 891
5 Cold. 510... 194
.18 Abb. 201...
69
2 Har. & McHen 463…….200, 358
.29 Mo. 25………é
298
..4 B. Monr. 534........ 288
42 How, 887………
.15 Cal. 88...
8 Denio, 214….
13 Pa. St. 515..
****
Wallace v. Hitchcock............
Wallace v. Patterson.....
Waller v. Mardus..
Waller v. Tate....
Waller v. Thomas.
Walling v. Miller.
Walsli v. Adams.
224
862
246
Walter v. Gernant..
** 275′
Walton v. Daly.................17 Hun, 601………………………………..a 463
Ward v. Howard…… ………………………....12 Ohio St. 158………………………….. 446
Ward v. Huhn.....……………………………………….16 Minn. 161.......-812, 827
Ward v. Kinzie........
.33 Tex. 297
454
Cele
*H*❤ -
....
688
TABLE OF CASES.
Ward v. Proctor....
Warner, in re. . . . . . . . .
Warren v. Leland......
Warner v. Perkins....
Warwick v. Chase...
Washburn v. Goodwin.
Washburn v. Sproat.
Wassell v. Tunnah
Water v. McClellan.
Waterbury v. Merchants' Union Ex-
...
press Co....
...
•
Waterman v. Treat..
Waters v. Stewart
Waters y. Taylor.....
Watson v. Todd……….
Watts v. Cleaveland
Watts v. Griffin..
Watson v. Gregory.....
Watson v. Watson...
Weaver v. Puryear..
Webb v. Bailey.
Webb v. Brandon…….
Webb v. Daggett..
Webb v. Stecle..
Webber v. Mallett...
Weber v. Weitling...
Webster v. Coffin..
Webster v. McNamara..
....
Webster v. Peck…….
Weed v. Aldrich.
Weed v. Dayton…....
Weeton v. Woodcock...
Wehle v. Conner..
Weble v. Spellman….
Weil v, Tyler.....
Weidensaul v. Reynolds.
Weil v. Paul………
Weil v. Silverstone....
Welch v. Becker.
Welch v. Clark….
Wellington v. Fuller………
Wells v. Bannister..
Wells v. Brander..
Wells v. Gates..
·
•
··
7 Metc. 318..
..3 Wead. 424………………
.2 Barb. 613..
.8 Cush, 518....
..23 Md. 155..
•
....
17 Pick. 137..
...16 Mass. 449..
.23 Ark. 101..
….4 Dall. 208…..
Page
184
.135, 143, 400
235
857
64
... 287
250
.811, 825
275
··
··
.3 E. D. S. 553..
.Litt. Sel. Cas. 244..
........6 Blackford, 113...
··
.50 Barb. 157; 8. C., 8 Abb.
N. S. 163...
222
.49 Me. 309
436
1 Caine's Cases, 47.... ... 287
.2 Veasy & Beames, 801..... 202
5 Mass. 271...
839
·
..
.819, 407
194
287
.13 Conn. 83..
207
.11 Ala. 941………
..42, 60
.54 N. Y. 164.......
.874, 894
.4 Heisk. (Tenn.) 285....... 814
...
2 Barb. 9....
262
•
.23 Vt. 508..
440
..10 Me. 88.....
298
··
3 C. E. Greon (N. J.) 441... 100
14 Mass. 196……….
437
103
.32 Geo. III…….
31 Conn. 495...
.2 Hun, 531..
.40 Conn. 200..
..
272
290
819
250
7 Mees. & W. 14....
.83 N. Y. 231...........
75 N. Y. 585..
.856, 406
411
850
.88 Mo. 545....
....49 Pa. St. 73.............. 819
...22 Cal. 492..
278
6 Bush (Ky.) 698........... 403
…….1 P. & W. 57..
274
•**
194
12 Barb. 686………….
.38 Me. 61....
..5 Mass. 514…..
259
249
…………….10 Smedeg & Marshall, 848.. 188
…..18 Barb. 55…….
224
..
TABLE OF CASES.
689
Page
Wells v. Ryan......
..44 Ill. 40…..
121
Wells v. Watertown Fire Ins. Co………..21 Hun, 409………
240
864
Wells v. Williams...
Wendell v. Crandall…………
206
.39 Barb. 567...
.1 N. Y. 491..
4 Cush. 414…….
....1 Mass. 471..
.42 Vt. 27...
Wentworth v. Leonard..
Wentworth v. Whittemore...
437
852
320
West River Bank v. Gale..........
West River Bank v. Gorham........88 Vt. 649.......………………………… 839
West v. Ward..
.26 Wis. 580........…………….. 827
Western Bank v. City Bank of Colum-
...
bus......
Westervelt v. Pinckney..
Westervelt v. The People,
Wetherill v. Flanagan.
Wetherell v. Spencer.....
Weyman v. Murdock.
Whalen v. Cadman...
··
Whallon v. Scott.
Wheeler v. Cobb…….
Wheeler v. Cropsey.
Wheeler v. Farmer.
Wheeler v. McFarland..
Wheeler v. Miller…….
.......7 How. 238.......95, 96, 98, 216
..14 Wend. 123.
.407, 429
etc........20 Wend. 416.
285
360
250
185
•
..206, 305
..2 Miles, 243.,
..........8 Mich. 123...
Harper (S. C.) 125.
....11 Iowa, 22.......
..10 Watts, 237…….
.75 N. C. 21………….
5 How. 288……..
..88 Cal. 203...
....10 Wend, 818.
263
121
813
··
64
244
.16 Cal. 124……….
236
Whipple v. Foot....................2 Id. 418; Jolins. P, 285... 228
Whitaker v. Sumner.
..9 Pick. 808...
White v. Brown...
White v. Dougherty.
White v. Jones..
White v. Osborn..
405
..8 Wallace, Jr. 217.......... 122
.Mart. & Yerg. 809......... 201
.88 Ill. 159...
247
198
..21 Wend. 72.....
White v. Schnefly's case...…………………. .10 Watts (Pa.) 217……………………. 194
White v. The Union Insurance Com-
pany....
White v. Woodward...
•
White. Wyley......
Whitehead v. Buffalo & Lake Huron
R. R. Co......
•
.1 Nott & M'Cord, 556... 203
..8 B. Monroe (Ky.) 484……………. 191
..17 Ala. 167.---
896
..
........14 Weekly Dig. 415..
.10 Johns. 360………..
.5 N. H. 249...
Whitewright v. Stimpson..
Whiting v. Lebenheim...
Whitmarsh v. Cutting..
Whitney v. Dean………
Whitney v. Deniston...............2 F. & E. 471.
Whitney v. Farwell.............10 N. H. 9...
Whitney v. Krows…………………………….......11 Barb. 198.......
Whitney v. Ladd….
.10 Vt. 165...
...
2 Barb. 879...
.18 How. (N. Y.) 218. 89, 95, 101,
102, 103
210
•
..
287
251
833
...... 880
839, 434, 435
264.
194
44
690'
TABLE OF CASES.
19 Me. 42.
Whitney v. Monroe
Whitney v. Stark.....
8 Cal. 514...
.14 Mass. 88.
.11 Mass. 211...
Whitney v. Whitney.
Whittier v. Smith....
Whitwell v. Brigham..
.19 Pick. (Mass.) 117.
Wickes v. Clarke....... ...........8 Paige, 161…………
161....
Wicks v. Branch Bank…….
….12 Ala. 594...
..
Wilcox v. Hawley..
.81 N. Y. 648..
...
9 Gray, 97……….
..........52 Barb. 474.
254
..8 Humph. (Tenn.) 717……………. 272
9 Dana (Ky.) 297…….
..31 N. Y. 648…….
194
812
7 Vt. 188....
234
Wiggin v. Day
Wilbur v. Fradenburgh.
Wiley v. Lashlee…..
Wilcox v. Carey...
Wilcox v. Hawley
Wilds v. Blanchard.
Wilkes v. Ferris....
Wilkie v. Jones ...
Wilkson v. Mosely
Willard v. Butler....
Willard v. Rice………………………………………………..11 Metc. 498.............. 403
Willard v. Sheafe...
852
241
3
51
14 Pick. 550..
850
...
•
•
...
...
Page
859
278
284
*
.839, 434
25
.........5 Johns. 835..
.........1 Monr. (Iowa) 97..........
..18 Ala. 288
..38 Ma. 555...
..11 Md. 198…….
..8 La. 57...
...8 Mass. 240...
.49 Mo. 825..
.4 Jones, 206..
.....49 Miss. 877.
.4 Mass. 235…….
Willet v. Willet.
.8 Watts (Pa.) 277.......... 61
Willett v. Equitable Ins. Co.....………..10 Abb. N. S. 20.......... 835
Willetts v. Waite………
.25 N. Y. 577.......
.: 190
.84, 85, 86
** 254
886
453
Williams v. Jones....
Williams v. Banks.....?.
Williams v. Barrow...
Williams v. Brackett..
Williams v. Coleman....
Williams v. Council.....
Williams v. Gage...
Williams v. Hubbard………
888
255
858
Watkins Ch. 28……….
242
6 Ga. 365..
276
..
Williams v. Kelsey..
Williams v. Spencer..
Williams v. The Bank of Michigan…….7 Wend, 539
..5 Johns. 352...
408
223
78
....8 Scammon, 268..
.37 Tex. 181…….
.......1 Head, 401..
827
832
6 Munf. 176…….
403
Williams v. Waldo.
Williams v. Wethered.
Williams v. Whoples....
Williamson v. Bowie..
Williamson v. Clark ….………………
Willis v. Crocker.......
Wilmerding v. Cunningham
Wilson v. Albright.
2 Miles, 153...……………………………. 241
.......1 Pick. 204........
446
.........Gen. T. 1st Dept. May, 1883 872
.2 Greene, 125.. .883, 852-357
........8 How. 869......
*..*.. 887
Wilson v. Allen………….
Wilson v. Britton...................6 Abb. 97; S. C., 26 Barb.
502.-**
... 167, 168
··
297
862
813
246
TABLE OF CASES. I
691
....
Wilson v. Carson...
Wilson v. Carver….
Wilson v. Danforth.
89
Wilson v. The Commissioners........7 W. & S. 197............. 286
Wilson v. Conine......
Wilson v. Ferguson.
Wilson v. Forsyth..
247
264
257
403
Wilson v. Lane...
Wilson v. Robertson....
268
Wilson v. Root..
890
Wilson v. Wilson..
.64, 66, 61
Wilt v. Franklin.
......1 Binn. 521.
276
52
.23 Vt. 803..
254
Winchell v. Noyes....
Winebrinner v. Weisinger.....…………..8 Monr. 83………………..
Winsor v. Orcutt........ ..........11 Paige, 578..........889, 892
Winter v. Drury…….
.5 N. Y. 525………
364
Wintermute v. Light……………………………………..46 Barb. 278............... 201
Winston v. Ewing…………
Wise v. Darby.....
442
Wiswall v. Sampson.................14 How. (U. 8.) 52......... 849
Witter v. Richards..
.10 Conn. 37, 43
203
Wittner v. Von Minden..............27 Hun, 234...*,********* 56
Witherhead v. Allen.....
..4 Abb. Court of Appeals, 628;
.196, 858
が
​8. C., 8 Keyes, 562………………. 222
......28 Barb. 661, 667........ 222
........4 Mason, 515..
273
...23 Wis. 516.………………………..108, 123
.2 Camp. 631.
820
.8 Saced, 659..
813
..
..8 Sneed, 659....
803
„20 Tex. 247….
254
833
*. 325
.244, 333
72
341
245
296
..871, 869
286
278
289
273
Witherhead v. Allen.......
Wolf v. Harris..
Wolf v. McGavock..
Wolff v. Summers.....
Wolfenbarger v. Standifer..`………
Wolfenbarger v. Standifer..
Wood v. Chambers..
Wood v. Estes...
Wood v. Lord.
Wood v. Orser..
Wood v. Smith..
12 Md. 54.....
4 Hayn. 90….
47 Ga. 676....
··
.2 Johns. 280.
..10 How. Pr. 175..
24 Barb. 105. …….
•
.83 N. H. 466……
.21 N. Y. 587...
.43 Ind. 486....
.8 Gill. 192...
..
….1 Ala. 129.
..9 Mo. 131..
.35 Me. 145...
51 N. H. 448……….
.25 N. Y. 848…….
..........5 M. & R. 124.
.......5 N. H. 519..
Woodbridge v. Morse...
Woodbury v. Long..................8 Pick. 543...
Woodgate v. Fleet.................44 N. Y. 1..
Woodhouse v. Todd………
Woodman v. Bodfish.
Woods v. Bugbey...
Woods v. Scott..
.10 W. Dig. 28...
25 Me. 317...
.29 Cal. 472...
.14 Vt. 518
9 Vt. 858...
..
..
Page
864
289
Woodward v. Gates..
Woodward v. Murray..
..........18 Johns. 400..805, 803, 206-808
Woodworth v. Curtis................2 Woodb. & M. 534…………………. 232
692
TABLE OF CASES.
Woolfolk v. Cage......
Wooster v. McGee...
Wooster v. Iron Co……..
Wootton v. Wheeler...
Worthington v. Bullett.
Worthy v. Benham.....
Wrigley, in re..
Wrigley v. Geyer...
Wright's Appeal….
Wright v. Black.
Wright v. Douglass....
Wright v. Douglass...
Wright v. Dunning.
Wright v. Ragland……..
Wright v. Rowland..........
Wronkay v.
Killeen.
Wygant v. Smith...
Wyman v. Brown.....
Wyman v. Mitchell..
..
Zerega v. Benoist…
Zurcher v. Magee…….
..Walker (Miss.) 800
1 Tex. 17………
88 Conn. 266...
•
298
.242, 287
254
266
113
4 Mass. 101 ...
850
25 Pa. St…….
453
2 Wend. 258……….
113
2 N. Y. 873……….
286
8 Barb. 554..
293
828
.46 Ill. 271...
.18 Tex. 289...
384
.4 Keyes, 165……………………………….. 463
..8 Law Bull. 81
267
808
254
77
..22 Tex. 838…….
6 Md. 172.
..
...
.18 Hun, 176...
8 Wend. 134....
··
..
2 Lans. 185....
·
..50 Me. 189....
1 Cowen, 816..
Yale v. Matthews...
Yarborough v. Thompson........
Yates v. Lyon…......
Yates v. North.
Yates v. Olmsted.
Yeaton v. Lenox.......
Yeldell v.
Stemmons
Yocum y. White.....
Yorks v. Peck…………
Young v. Broadbent.............. 23 Iowa, 539..
Young v. Nelson
Young Stone Dressing Co. v. St. James
Church
.61 Barb, 489..
Young v. Pate......................4 Yerg. 164
Young v. Young……………
2 Hill (S. C.) 426..
Yuba Co. v. Adams.... ............7 Cal. 85....
...
442
.12 Abb. 879…..
..8 Sm. & M. (Miss.) 291…………. 261
61 N. Y. 344...
.44 N. Y. 271……….
.56 N. Y. 632…….
270
.871, 461
257
8 Pet. 123
183
241
261
...
15 Mo. 443.
•
.86 Iowa, 288..
17 How. 192...
Page
66
8
893
446
.25 Ill. 565……………………………..148, 145
•
.7 Rob. 199.....
2 Ala. 258
863
280
855
849
.867, 894, 458
341
INDEX.*
References are to pages.
"About to" dispose of property when a ground of attachment, 152, 156.
abscond, not a ground of attachment, 139.
Absconding and concealed debtors. The original ground of the
Roman and English system of attachment, 133.
the domestic attachment of the American system, 134.
similarity of terms "absconding" and concealment, 134.
to constitute " absconding" departure must be sccret, 134.
with intent to defraud or to avoid service, 135.
all the circumstances relating to departure may be shown to
prove intent, 185.
indications of an intent to abscond, 135.
insolvency and secrecy, 136.
what is sufficient proof of, 187.
prolonged absence; false representations, 187.
flight to avoid criminal prosecution; effect of return, 188.
secret departure under assumed name, 138.
actual departure necessary; statute not applicable to debtors
about to abscond, 189.
must abscond from usual place of abode, 139,
concealment must be to avoid "civil" process, 140.
not essential that service should be actually avoided, 139.
terms “absconding” and “concealment may be joined, 141.
avoiding or resisting service a concealment, 141.
"
actual intent necessary to be shown, 142.
rule where debtor's departure is connected with threats of suit
1
against him, or with a sale of his business, 143.
or with false statements as to the point of departure, 143.
and a transfer of his property, 144.
if purpose of concealment is clear, length of time concealed is
immaterial, 145.
For Index to Forms, see page 719.
[698]*
694
[References
INDEX.
Absconding and concealed debtors. Cannot abscond by proxy; depart-
ure of partner will not affect the entire firm, 146.
may issue in such case against the interest of absconding co-
partner, 146.
Absence, when proof of absconding, 137.
absconding debtors' act, 18.
Account books, rule as to attachment of, 233.
Action, sec CAUSE OF ACTION.
sce MATURITY OF CLAIMS,
sec ACTIONS Ex Delicto.
on judgments, see JUDGMENTS.
Bee also UNLIQUIDATED DAMAGES; PENALTIES; SUITS IN
EQUITY.
Actions ex delicto, cause of action must be within the statute, 34.
discrimination of the courts against actions founded on tort, 34.
reason and extent of the rule, 35.
should only bar such actions wherein amount of damages is
too uncertain to be correctly specified, 86.
statute of 1866 and new code extends the rule to all except
personal torts, 87.
breach of duty. Are actions for the negligent loss of goods by
common carrier "on contract" within the former statute, 87.
the supreme court decision in Atlantic Mut. Ins. Co. v. Mc-
Loon, denying attachment in such cases, 38.
criticisms upon this rule; distinction between public and pri-
vate duties, opposite to the opinion of Ch. Justice Savage,
and to the spirit of court of appeals decisions, 89.
such actions not exclusively ex delicto, 40.
English doctrine as to "breach of duty," 41.
orignal contract must be alleged and proved in such cases, 42.
common law action of debt would be, 42.
opinion of Ch. Justice Story, 43.
weight of American decisions support attachment in such
actions, 44.
upheld in old supreme court in Lenox v. Howland, 45.
and the same principle recognized by the court of appeals in a
recent case, 47.
Connecticut and Indiana, 48.
in Iowa, 48.
but denied in Pennsylvania, 49.
Pennsylvania rule not applicable to Code States, 50.
effect of waiving tort and declaring on the implied contract, 50.
distinction between case and assumpsit, 50.
form of complaint evidencing election, 51.
election extends to pure torts, 51.
are to pages.]
695
INDEX.
Actions ex delieto, application of the rule of election, 52.
does the right of election extend to conversion ↑ 52.
attachments not applicable to breach of promise cases, 53.
attachment in actions for conversion, 53.
actions for fraud under the Old Code not within the statute,
54.
"injury to property," application of the term to attachments,
55.
fraudulent representations in procuring money or goods in-
cluded in the term, 55.
case of Witner v. Von Minden to the contrary explained, 56.
citation to cases establishing the rule as above claimed, 57.
conversion by public officer; necessity for extended grounds of
attachment to actions in tort, 58.
general rules applicable to actions ex delicto, 59.
claims arising on.
when subject to garnishment, 353.
Adminstrator, see Personal Representatives.
property held by, not subject to garnishment, 347.
Affidavit, to procure attachment.
general principles relating to, 867.
necessity and nature of an affidavit, 867.
must legally prove jurisdictional facts, 368.
proof of fact and intent, 869.
how and by whom facts should be proven, 870.
statements on information and belief, 871.
reasons for not presenting affidavits of informant, 371.
not necessary to procure compulsory deposition, 872.
formal statements, the title, venue and jurat, 873.
designating the affidavit, 873.
statement of the causes of action, 374.
maturity of the claim, 877.
statement of the amount due over and above counter-claims,
878.
who may make this statement, 379.
the form of the statement, 881.
statement of the grounds of attachment, 882.
in proceedings to vacate attachments, 460-2.
form of, to procure attachment, 468, 480.
Admissions, effect of, of debtor, 161-8, 178.
Alabama, laws of, relating to attachments, 505.
66 exemptions, 561.
Amendment of undertaking, 387.
Arizona, laws of, relating to attachments, 507.
18 exemptions, 564.
66
66
696
INDEX.
[References
Arkansas, laws of, relating to attachment, 506.
$6.
exemptions, 565.
Assault and Battery. See ACTIONS EX DELICTO.
Assignee, of claim, has same remedies as the assignor, 104.
Assignment, as to geneneral assignments see that title.
of claim to resident, effect of, 104.
when ground of attachment. See FRAUDULENT DISPOSITION
OF PROPERTY and FRAUDULENT TranSFERS.
See JOINT STOCK COMPANIES.
Associations.
Assumed name, when evidence of intent to abscond, 188.
Attachiamenta bonorum. The attachment at common law, 8.
Attachment, see HISTORY OF ATTACHMENTS.
↑
as to cause of action, see MATURITY OF CLAIMS, ACTIONS EX DE-
LICTO, JUDGMENTS; UNLIQUIDATED DAMAGES; PENALTIES;
SUITS IN EQUITY.
as to grounds of attachment, see FOREIGN CORPORATIONS; NON-
RESIDENTS; ABSCONDING AND CONCEALED DEBTORS;
FRAUDULENT DISPOSITION OF PROPERTY
as to parties to the action, see PLAINTIFFS; CORPORATIONS; JOINT
STOCK COMPANIES; PARTNERS; STOCKHOLDERS; PERSONAL
REPRESENTATIVES.
as to property attachable, see PERSONAL PROPERTY; Real Es-
TATE; FRAUDulent TransfERS; EXEMPTIONS; GARNISH-
MENT.
as to practice in attachment cases, see AFFIDAVIT; UNDERTAK-
ING; WARRANT; SHERIFFS; VACATING ATTACHMENT.
as to State laws relating to attachments and exemptions, see
STATUTES.
as to forms, see Separate INDEX TO FORMS.
Attachment bonds, see UNDERTAKINGS.
Avoiding service, see ABSCONDING AND CONCEALMENT.
Bail. See UNDERTAKING.
Bailment of property, when garnishment applies to, 833.
See also RECEIPTORS.
Bank accounts, when may be garnished, 837.
Bankruptcy, effect of, on attachment, 184-188.
Bills and notes. See NEGOTIABLE PAPER.
Books of account, rule as to attachment of, 233.
Breach of contract, time when it arises, 24-81.
place where it arises, 97-99.
Breach of duty, by public officers, effect of, 87–42.
Breach of promise of marriage, attachments not applicable to 53.
California, laws of, relating to attachments, 508.
66 exemptions, 567.
66
are to pager.]
INDEX.
697
Cash, turning property into, a “disposition,” 151.
Cause of action, must be within the statute, 82.
meaning of term, "cause of action arose" within the State,
95-101.
Colorado, laws of, relating to attachments, 508.
66 exemptions, 568.
66
Common carriers, nature of action for loss of goods by, 87, 50.
Counsel fees, when covered by undertakings, 889.
Change in cause of action. See ALTERATION AND AMENDMENT.
Change of possession, rule as to, 270, 280.
Character of debtor, when may be shown, 179.
Chattel mortgage, effect of, on attached property, 242.
when fraudulent, 256.
Checks. See NEGOTIABLE PAPER.
Chose in action, when attachable, 238–240, 254.
and see GARNISHMENT OF DEBTS.
Connecticut, laws of, relating to attachments, 510.
64 exemptions, 569.
Circumstantial evidence, to prove intent. See INTENT.
Civil law attachments, description of, 4, 5.
in what countries applicable, 18, 14
Clerk of court, moneys deposited with, not subject to garnishment,
843.
Common law attachments, history of, compared with American system,
6-11.
Concealment, 19.,
See SECRETING AND ABSCONDING.
Confusion of goods, duty of sheriff in case of, 408.
Consideration, when necessary, 258–9.
Construction of statutes relating to attachments, 4, 5.
of term "non-residence,” 126–9.
of exemption laws, 811.
Contingent damages, not sustain attachment, 62, 68.
Contingent or conditional sales, rule as to attachment of property in
cases of, 245.
Contracts, entire contract effect of, 54.-
do they include judgments, 74–83.
payable in goods, 81, 73.
Conversion, attachment applicable to, 87, 55.
by public officer, 58.
Copartnership. See PARTNERS.
Copyrights, not attachable, 230.
materials when, 231.
Corporations, foreign. See FOREIGN CORPORATIONS.
defunct, attachment against, 268.
698
[References
INDEX.
!
Corporations, quere, as to whether domestic corporations are liable to
attachment, 211-217.
usually included in the term "persons " and "inhabitants," 217.
how far corporations are protected by charter or acts creating
them, 218.
rule as to domestic corporations, 219.
66
219.
foreign
insolvent
220-1.
stock or interest in, how attached, 426.
Counter-claims, statement as to in affidavit, 878.
Creditors' bill, when can be maintained by sheriff, 45-46.
Crops. See GROWING CROPS.
Custody of attached property, 427.
66
must remain in sheriff's control, 428.
otherwise levy becomes dormant, 428.
character of possession necessary to uphold levy, 480.
sheriff's liability in respect to attached property, 431.
usually held to reasonable degree of care and diligence only,
431.
rule not applicable when left in defendant's care, 432.
property in custody of receiptor, 433.
{ receiptor stands in the relation of bailee to the sheriff, 434.
duty and liability of receiptor, 435.
terms of receipt as affecting his liability, 436.
not liable until there is an inability or refusal to attached
goods delivered, 437.
under what circumstances he can raise the question of title to
the property, 438.
what defenses he may make in an action for conversion, 439.
rule of damages therein, 441.
nature and extent of sheriff's liabilities for laches or official
misconduct, 443.
Custodia Legis, property in cannot be attached, 838-341.
Customs of London, attachment under, 15.
•
of other cities, 16.
applicable to both residents and non-residents, 106.
Dakota, laws of, relating to attachments, 510.
66 exemptions, 569.
06
Damages for breach of contract, 68.
see CONTINGENT DAMAGES; UNLIQUIDATED DAMAGES.
Death, see PERSONAL REPRESENTATIVES.
Deceit, see INTENT.
Defences, see SHERIFF.
2
are to pages.]
699
INDEX.
Definition, of attachment, 1.
injury to property, 55.
cause of action arose, 95, 101.
subject of action, 101.
debts, 66.
non-resident, 107.
domicil, 108.
inhabitant, 129.
Delaware, laws of, relating to attachments, 512.
6.
66
exemptions, 571.
Delivery, when there must be, 270.
Departure, when indicating "absconding," 184, 5, 9.
and see ABSCONDING.
Deposition, see AFFIDAVIT.
Design, see INTENT.
Disposition of property, see FRAUDULENT DISPOSITION OF PROPERTY,
and FRAUDULENT TRANSFERS.
Dissolution of attachment, see VACATING.
District of Columbia, laws of, relating to attachments, 512.
laws of, relating to exemptions, 572.
Distringas, the attachment at common law, 6-8.
specially applicable to attachment against corporations, 89.
only applicable to residents, 106.
Domestic corporations, see CORPORATIONS and FOREIGN CORPORA-
TIONS.
Domicil, sometimes considered synonymous with residence, 108.
derivation of the word, 108.
rules of construction, 112-122.
1st. Domicil of origin, 114.
2d. Of minors and married women, 116, 117.
8d. Requisites of domicil, 118.
4th, 5th. Presumption in designating it, 120.
6th. Character of domicil, 122.
7th. Acquisition and retention, 122.
Doors, when broken open to levy, 408
Dormant partner, attachment in case of, 187, 8.
Due, when claims are, see Maturity of Claims.
Dwelling house, when may be broken open by sheriff, 408.
Effect of levy, as to the lien, &c., 189.
Emblements, when attachable, 251, 8.
Equitably due, meaning and effect of, 82.
Equity, suits in, see SUITS IN EQUITY.
Estates in expectancy, when leviable, 296.
Evidence, how given, see AFFIDAVITS.
700
[References
INDEX.
Evidence, of intent, see INTENT.
of facts to sustain the several grounds of attachment. See
GROUNDS OF ATTACHMENT.
Ex delicto, see ACTIONS EX DElictu.
Executions, see SHERIFF.
Execution of warrant, see SHERIFF.
Executors and Administrators, see PERSONAL REPRESENTATIVES.
property held by, not subject to garnishment, 847.
Exemptions, origin of statutory exemptions, 802.
usually apply only to householders and inhabitants, 803. ›
meaning terms, householder, and head of family, 304.
who is the head of the family, 805.
special exemptions for certain classes of debtors, 806.
actions for purchase-money, 807.
what constitutes waiver of, 809–310.
can it be waived in advance, 810.
property included in the terms of the statute, 811.
team, when exempt, 812-814.
working tools, 814, 817.
household furniture, 818, 319.
stock, feed and provisions, 821, 822.
homestead exemptions, 822–324.
extent of, 824, 825.
the value limit, 826.
the title, 826..
abandonment of, 828.
what debts applicable to, 829.
as to state laws applicable to. See STATUTES.
Express trusts, when creating a leviable interest, 292.
Extension of credit, when acceptance of note amounts to, 26, 28.
vitiated by fraud, 28, 80.
when defeated by debtor, 80.
Firms, see PARTNERS.
False statements, when indication of intent to abscond, 135, 143.
when indicating fraud in transfers of property, 160.
effect of generally, 179, 282.
Fixtures, when subject to attachment, 247-249.
Flight, effect of, ace ABSCONDING.
66
Florida, laws of relating to attachments, 513.
66 exemptions, 578.
Foreign attachments, history of, 15, 17, 20.
Foreign administrators and executors, when attachment will not lie
against, 264.
Foreign corporations, same right to sue as residents, 182.
1
}
are to pages.]
701
INDEX.
Foreign corporations, general statement as to grounds of attachment
against, 88.
•
corporations attached by distringas at common law, 88.
distinction between domestic and foreign corporations, 89.
foreign corporations may gain a quasi domicil in this state, 89.
are national banks foreign corporations, 90.
the rule under the New Code, 91.
insolvent, national banks exempt from attachment, 92.
effect of converting state into national banks, 93.
general rules relating to actions against foreign corporations,
84.
the remedy under the Old Code, 94.
when non-resident plaintiffs could attach, 94.
meaning of the term "cause of action arose " within the state,
95.
the cause of action is the breach of duty, 95.
it arises where such breach occurs, 97.
rule where no place of payment specified, 99.
rule in case of accommodation paper, 99.
rule in case of torts, 99.
meaning of term "subject of action is situated" within the
state, refers to property within the state, 100.
equivalent to New Code requirement of "property situated"
within the state, 100,
supreme court rule "cause of action" and "subject of action "
synonymous, criticised, 101.
provisions of New Code in such cases, 102,
the system under the former Revised Statutes, 102.
the provisions of the New Code, 103.
how all difficulty may be avoided, 104,
Foreign receivers, attachment not lie against, 190.
Forms, see seperate INDEX TO FORMS.
Fraud, vitiates term of credit, 28, 80.
actions founded on, not within statute under Old Code, 54.
meaning of term "injury to property " under New Code, 55,
57.
in one act, may be shown as evidence of intent in another, 79.
as to effect and proof of, in transfers of property, see FRAUDU-
LENT DISPOSITION OF PROPERTY and FRAUDULENT TRANS-
FERS, see also Intent.
Fraudulent disposition of property, history of property clause in at-
tachments, 148.
meaning of the term "his property," 149.
has been held to refer to any portion of his assets, 149.
702
INDEX.
[References
Fraudulent disposition of property, in Illinois, by statutory provision
it must be sufficient to injure creditors, 150.
same principle held in Mississippi and Tennessee, under the
ordinary clause, 150.
under New Code the term "any" property is used, 151.
turning property into cash a “disposition,” 151.
meaning of the term "about to" dispose of. Refers to the
immediate future, 152.
held not synonymous with "will" dispose of, 153.
nor with “will” convert, 154.
rule applicable where there is a present intent to make a
fraudulent disposition, 154.
removal that is temporary or in usual course of business not
within the statute, 155
application of rule to vessels plying between specified ports,
156.
fraudulent intent; what facts must be proved, 156.
circumstances indicating the fraud must be shown, 157.
these circumstances comprises (1) sales below costs when
insolvent, 157.
(2) reducing stock without discharging debts, 158.
defendant's statements in respect thereto, 159.
(3) false representations and deceitful promises, 180.
debtor's admissions of fraudulent acts, 161.
implied admissions 163.
what admissions are held insufficient, 163.
fraudulent transfer to copartner, 164.
concealment and secret removal of property, 165.
general assignment not a fraudulent disposition, though a
delay to creditors, 166.
what threats to assign not within the statute, 167.
what threats will justify attachment, 169.
general principles applicable to grounds of attachment,
171.
analytical classification of grounds of attachment, 173.
First-extent of proof required, 177.
Second-mode of proof; admission, 178.
Third-mode of proof; circumstances, 178.
Fourth-Indications of a design to defraud creditors are:
(a) Insolvency, 178.
(b) Secrecy, 178.
(c) Unusual haste, 179.
(d) Falsehoods, 179.
(e) Fraud in one of a series of connecting transactions, 179.
(f) Character of debtor and previous acts of insolvency, 179.
are to pages.]
703
INDEX.
I
Fraudulent purchase of goods, what is, and effect of, 280--2.
Foreign judgments, when attachments will not lie, actions on.
Fraudulent transfers, effect of to pass no title.
as to attaching creditors, 253.
exceptions to the rule, 254.
extent of, 255–6.
when chattcl mortgages fraudulent, 856-8.
when conveyance fraudulent, 258–60.
general assignment, when fraudulent on its face, 261-3.
presumption of fraud in, 263-5.
extrinsic fraud in, must be actually proven, 265.
effect of the schedules and bond on the assignment, 266-7.
when assignment by a solvent person is void, 257.
assignment by partners, when voidable, 268.
defective execution of, 269.
must be made by all the joint owners, 269.
the acknowledgment, 270.
necessity for a change of possession, 270-2.
distinction between absolute and contingent transfers, 273-4.
exceptions to the rule, 274, 5.
rule as to, in sheriff's sale, 275.
66
"in garnishment, 865.
change must be immediate and continued, 276–8.
what amounts to a sufficient change of possession, 278.
how presumption of fraud in such cases may be rebutted, 279.
fraudulent purchase of goods, 280.
by suppressions, 281.
by false representations, 282.
fraudulent transfers by corporations, 282.
Garnishment, enforced by sheriff's serving notice of attachment.
contents and service of notice in such cases, 409.
effect of notice, 410.
certificate of, to be furnished by third party indebted or hold-
ing property, 411.
effect of refusal, examination by the court or referee, 412.
rules governing the examination, 413.
collecting of attached debts by the sheriff, 415.
when the plaintiff may unite as plaintiff with the sheriff, 416.
sheriff must first secure a valid lien upon the debts or property,
417.
Garnishment of debts, what claims reached by, 850.
rule in New York State, 351.
right of action must be absolute but need not be due, 851-2.
704
INDEX.
[References
Garnishment of debt, claims ex delicto or for unliquidated damages,
353.
litigated or in judgment, 854-7.
joint and several liabilities, 857.
partnership credits, 858–9.
liability on commercial paper, 360.
effect of a fraudulent assignment, 365.
notice of assignment, 866.
Garnishment of personal property, general principles applicable to,
831.
only applies to leviable property, 832.
property charged with liens, 832.
choses in action in the hands of bailee, 383-4,
non-resident bailees and debtors, 233–6.
possession of garnishee, 837.
property in custodia legis not attachable, 838.
includes property held by sheriff, 338–342.
deposited in court, 342.
held by executors and administrators and guardians, 847.
public officers, 848.
trustees and receivers, 848.
General assignment, if bona fide, not a frandulent disposition of prop-
erty, though it may cause a delay, 166, 260.
effect of threats to assign, 167-171.
what facts render it false on its face, 261–3.
presumptive evidence of fraud in, 203–5.
must be properly executed, 200-270.
Georgia, laws of, relating to assignments, 515.
16 66
"exemption, 575.
Goods, when leviable, see PROPERTY ATTACHABLE.
Grass, when attachable, 235, 250-2.
Grounds of attachment, rules relating to. See FOREIGN COrpora-
TIONS, NON-RESIDENTS, ABSCONDING AND CONCEALED ♣
DEBTORS, and Fraudulent DISPOSITION OF PROPERTY.
statute laws applicable to. Sec STATUTES.
Growing crops. When attachable, 235, 250-2.
Guardians. Property held by not subject to garnishment, 847.
Head of family. Meaning of term under exemption laws, 805.
Heirs at law. See PERSONAL REPRESENTATIVES
when interest in real estate leviable, 298
Home. See DOMICIL.
flomestead exemptions, general principles relating to, 822–3.
extent of, 824.
the value limit, 826.
j
are to pages.]
705
INDEX.
Homestead exemptions, the title, 826-8.
abandonment of, 828.
what debts applicable to, 329.
Household furniture, when exempt, 818, 19.
Householders, exemptions applicable to, 803.
meaning of term, 804.
History of attachments, under the civil law, 4, 5.
66
66
66
66
66
46
in civil law States, 14.
under the Customs of London, 15.
66 “ other cities, 16.
American system, 16–22.
the "New England Grab Law," 16.
foreign attachments in Pennsylvania and Maṛyland, 17.
garnishment or trustee process, 17.
absconding Debtors' Act of 1715, 18.
comparison between the common law and the American
common law, 6-11.
Scotch system, 12.
Irish
12.
French 66
18.
48
systems, 19.
comparison between foreign and domestic attachments, 20.
New York system, under the Revised Statutes, 21.
"Justices' Act, 21
66
"6
66 Old Code, 21.
"New Code, 22.
66
66
Idaho Territory, laws of, relating to attachments, 517.
66 exemptions, 577.
Illinois, laws of, relating to attachment, 517.
<< exemptions, 579.
Improvident attachments. See VACATING.
Increase of claim. See ALTERATION.
R
In custodia legis, property in, cannot be attached, 838-849.
Information and belief, rule as to, affidavits on, 871-2.
Indiana, laws of, relating to attachments, 519.
46
46 exemptions, 580
Inhabitant, when not synonymous with resident, 129..
exemptions applicable to, 803.
Injury to person. See ACTIONS EX DELICTO.
Injury to property, application of, to attachments, 55.
Insolvency and secrecy indications of intent to abscond, 136.
$
Insolvent corporations, when attachment may issue against, 220–1.
Intent, when necessary to constitute non-residence. See NON-RESI-
售
​DENCE.
45
706
[References
INDEX.
·
Intent, as affecting domicil. See DOMICIL.
to abscond, how proven, 134–146.
actual intent necessary, 142.
to defraud, how proven, 156-164.
general intent, how proven, 178–9.
Intermixture. See CONFUSION OF GOODS.
Iowa, laws of, relating to attachments, 520.
64 exemptions, 580.
66
Inventory, sheriff must file inventory of attached goods, 418.
effect of failure to file same, 419.
Joint debtors, attachment against, 194.
Joint and several debtors, attachment against, 195.
Joint stock companies and associations. Nature of joint stock com-
panies, 222.
how such under the statutes, 223.
associations other than joint stock companies, 224.
charitable and social organizations, 224.
former distinctions, 225.
how attachments issued against, 225-6.
effect of attachment against, 226.
what constitutes non-residence, 226.
stockholder in, for individual debts, 227.
Joint tenants and tenants in common, when interest in real estate
leviable, 298.
rule as to attachment of property of, 246.
Judgments, actions on, foreign judgments, when attachment will not lie
upon, 74.
application of new Code to domestic judgments, 74.
Quere. "Is a judgment a contract ?" 75.
-so held to be in Georgia, California and Massachussets, and
incidentally in this state, 75,
in New York justices' judgments are held to be contracts, 76.
but in both New York and California judgments held not to
create a new contract, 76.
Judge Sutherland's opinion, "In no sense a contract,” 77.
followed in Massachusetts, Illinois and North Carolina, 78.
want of mutuality in such a case, 79.
the common law rule, 80–1.
Quere. Shall Blackstone or precedent be followed? 82.
judgment is a debt and ex contractu, 83.
summarized statement of the American rule, 83.
when judgments are subject to garnishment, 854,
Judgment creditors' suit, see CREDITORS' BILL,
Justice court judgments, see JUDGMENTS.
are to pages.]¸
707
INDEX.
66
66
Kansas, laws of, relating to attachments, 522.
68 "exemptions, 581.
Keeper of property attached, see SHERIFFS.
Kentucky, laws of, relating to attachments, 523.
66 66
66
"exemptions, 582.
Lands, attachment of, see Real Estate.
Laws, see STATutes.
Levy, effect of generally, 189.
upon real estate, 299, 300.
as to leviable property, see PROPERTY ATTACHABLE.
Liens, of attachment, 18'.
upon realty, 299, 800.
property charged with, when may be garnished, 322.
Limited partnership, liability of special partners in, 199–205.
not allowed to withdraw capital, 206-9.
attachments against insolvent limited partnerships, 209–10.
Locked doors and trunks, when may be broken open by sheriff, 408.
Louisiana, laws of, relating to attachments, 524.
66 "exemptions, 583.*
66 66
66 **
Maine, laws of, relating to attachments, 525.
66 "exemptions, 584.
Malicions attachment, effect of, 391.
Maryland, laws of, relating to attachments, 526.
66 "exemptions, 585.
Malicious prosecution, see ACTIONS EX DELICTO.
Married women, domicil of, 116.
66 66
Maturity of claims, in some States attachment may be granted before
claim is due, 23.
importance of correct information relating to maturity of lia-
bilities, 23.
Rule 1-an action will not lie until the expiration of limited
period, 24.
premature, if commenced on last day named, 24.
no default until succeeding day, 24.
exception to this rulc, 24.
effect of a previous refusal, 25.
Rule 11-surety cannot sue until original liability is satisfied,
25.
application of the rule to commercial paper, 25.
premature suit not cured by payment at maturity, 26.
Rule 111-acceptance of note usually an extension of credit,
26.
statement of rule and exceptions by Lord Kenyon, 27.
708
[References
INDEX.
Maturity of claims, application to attachments in United States courts,
28.
fraud vitiates extension and revives original claim, 28.
Rule IV-entirety of promise requires entirety of performance,
28.
application of the rule, 29.
not affected by statute of frauds, 29.
accounting under an entire contract, 29.
Rule V-credit avoided by fraud, or non-performance of condi-
tion precedent, 30.
application of rule where sale conditional on payment by
notes, 80.
where debtor defeats agreement to give further credit, 80.
no recovery "on the contract" before maturity without prov-
ing refusal to comply with terms of credit, 81.
effect of breach of contract in a special case, 81.
meaning of term "equitably due" as applicable to attachments,
82.
66
64
Massachusetts, laws of, relating to attachments, 527.
exemptions, 585.
Michigan, laws of relating to attachments, 529.
exemptions, 586.
Minnesota, laws of, relating to attachments, 580.
exemptions, 587.
66
66
66
46
Minors, domicil of, 116.
Mississippi, laws of, relating to attachments, 531.
exemptions, 589.
Missouri, laws of, relating to attachments, 533.
exemptions. 592.
66
66
Models, when attachable, 231.
Montana Territory, laws of, relating to attachments, 534.
64
66
exemptions, 590.
Money, turning property into, a "disposition," 151.
Mortgages, when absolute transfer is, 288.
Mortgagee, when he may levy on equity of redemption for mortgage
debt, 287.
when his interest not leviable as real estate, 288.
Mortgagor, interest of, leviable as real estate, 287.
Motion to vacate attachments, 458–466.
Municipal corporations, when property of attachable, 235–8.
National Banks, when domestic and when foreign corporations, 90–93.
Nebraska, laws of, relating to attachments, 534.
exemptions, 594.
Negligence, actions for, see ACTIONS EX DELICTO.
18
16
are to pages.]
7༠9.
INDEX.
Negotiable paper, where cause of action arises on, 97–99.
Nevada, laws of, relating to attachments, 533.
exemptions, 595.
46
•
New England States, system of attachment in, 16.
New Hampshire, laws of, relating to attachments, 536.
exemptions, 597.
New Jersey, laws of, relating to attachments, 537.
""
"
66
exemptions, 597.
66
4
New Mexico Territory, laws of, relating to attachments, 588.
"C
66
66
exemptions, 598.
New York, history of attachments in, 20–22.
laws of, relating to attachment, 539.
46 exemptions, 598.
66
"C
Non-Residents, not liable to attachment at common law, 105.
distringas only applied to residents, 106.
foreign attachments under the customs of London applied to
both residents and non-residents, 106.
in this country courts divided as to meaning of term "non-
resident," 107.
object of the law, 107..
quere, are the terms “residence" and "domicil" synonymous I
108.
derivation of the two words, 108.
residence should be determined by facts, without regard to in-
tent, 109.
the rule in New York state, 110, 111.
domicil—general rules of construction, 112, 113.
1st, the domicil of origin, 114, 115.
2nd, constructive domicil of minors and married women, 116,
117.
8rd, domicil of choice-the union of act and intent, 118, 119:
4th, presumption in designating a domicíl, 120.
5th, presumptions designate but do not always determine, 121.
6th, every person has a domicil and but one, 122.
7th, the acquisition and retention of a domicil, 122.
suggestions as to harmonizing the New York decisions, 122,
a resident may become a non-resident without changing his
domicil, 123.
so held in Mississippi, 128.
Maryland, 123.
Wisconsin, 123.
Pennsylvania, 124.
Kansas, 124.
New York, 124.
statement of general rule as to non-residents, 125.
710
INDEX.
[References
Non-residents, construction of term • non-residence" under other
statutes, 126:
and in other states, 127.
general statement as to residence and domicil, 128.
the New Jersey rule-non-resident, one who cannot be served.
how far the question of intent is material, 129.
"resident" not synonymous with “inhabitant,” 129.
non-residence though temporary must be fixed, 1830.
quasi non-residence, when residents may be attached for ab-
sence, 131.
statute does not apply to supreme or superior city courts, 182.
Non-resident liens, when attachment will lie against, 186.
North Carolina, laws of, relating to attachment, 540.
44
"
exemptions, 603.
Notes, see NEGOTIABLE PAPER.
Notice, by publication.
Bee SERVICE OF SUMMONS.
Officer, see SHERIFF.
Ohio, laws of, relating to attachments, 541,
exemptions, 603.
66
Oregon, laws of, relating to attachments, 543.
exemptions, 605.
"
66
Outlawry, English system of, 11.
Parties to the action, see PLAINTIFFS; Personal REPRESENTATIVES ;
PARTNERS; LIMITED FARTNERSHIP; CORPORATIONS; JOINT
STOCK COMPANIES; STOCKHOLDERS and FOREIGN CORPORA-
TIONS.
Partners, attachment will not issue against firm because one member
absconds, 146.
when transfers to each other indicate a fraudulent disposition
of property, 164.
attachment of firm property for debt due by a partner, 191,
246.
how levied and effect of levy, 192-3.
when rule applicable to joint debtors, 194-5.
rule in case of partnership credits, 196.
66
66 "secret and dormant partners, 197-8.
see also LIMITED PARTNERSHIPS.
Partnership credits, when liable to garnishment and when not, 358-9.
Patents, rights not attachable, 230.
models, when attachable, 231.
rules as to manufactured articles, 232.
Payment of debts, effect of not being made, 158.
are to pages.]
711
INDEX.
Penalties, actions on.
Penalties created by act of parties, when attachment lies, 84.
may sue in action on undertaking, 84.
but has been denied on agreements, where damages are unliqui-
dated, 85.
and also on collateral bonds, 85.
Penalties fixed by the statute, 86.
Quere are statutory penalties contracts ↑ 86.
in New York penalties recovered in assumpsit by statute, 87.
Pennsylvania, laws of, relating to attachments, 544.
(6 ((
66 "exemptions, 606.
Perishable property, when attachable, 234.
when must be sold, 419.
Personal property applicable to attachment, applies to all property
leviable under execution, 229,
or the debtor could dispose of, 229.
Frceptions-copyrights and patents, 230.
rule as to models therefor, 231.
66 manufactured articles, 232.
books of account and private papers, 233.
perishable property, 234.
Quere, as to owner's interest in, 234.
public property, 235.
private property devoted to public use, 237.
private property of municipal corporations, 236-7.
66 in actual use, 238.
66
what amounts to an attachable interest in property, 241.
property covered by chattel mortgage, 242.
66 pledged, 243.
effect of conditional or incomplete transfers, 245-6.
when held by partners or tenants in common, 246–7.
fixtures, when attachable, 247-9.
products of the soil, when attachable, 250.
emblements, when attachable, 251.
mode of attaching, 406.
Personal representatives, attachment not lie against except in certain
cases, 184.
the rule as to foreign executors and administrators, 185.
attachment against non-resident heirs, 186.
claims having a priority of payment, 186.
attachment against executors individually, 187.
against a decedent or defunct corporation, 187.
death pendente lite, effect of, 187.
when attachment survives, 188.
effect of the lien, 189.
712
[References
INDEX.
Personal representatives, not lie against foreigu receivers of insolvent
estates, 190,
Plaintiff, who may be in attachment,
the general rulo as to parties plaintiff, 181.
former limitation as to non-residents in actions against non-
resident defendants, 181.
extent of the rule under the R. S., 181.
present limitations as to foreign corporation defendants, 182.
the rule in the absence of statutory limitations, 182.
Beveral creditors with distinct claims cannot unite as plaintiffs
to secure attachments.
Pledged goods, when attachable, 243.
Practice in attachment, see AFFIDAVITS; UNDERTAKINGS; Warrant;
SERVICE OF SUMMONS.
Powers in trust and beneficial, when creating leviable interest, 294.
Presumptions, in designating domicil See DOMICIL.
Priority among attaching creditors, 442.
priority between attachments and executions, 443.
when priority is lost by dormancy, 444
how lost by fraud or defective practice, 445.
how lost by change in pleadings or process, 446.
Private books and papers, rule as to, being attachable, 233.
Private property, when not attachable, 236–8.
Promissory notes, see NEGOTIABLE PAPER.
Proofs, see AFFIDAVITS.
Property, what is covered by the statute relating to secreting, etc.,
148-150.
Property attachable, see PERSONAL PROPERTY, REAL ESTATE,
FRAUDULENT TRANSFERS, EXEMPTIONS and GARNISHMENT.
Provisions, when exempt, 821-2.
Proxy, debtors cannot abscond by, 14.
Publication of summons, sce NOTICE BY PUBLICATION.
Public officer, warrant of attachment against, 899.
property held by not subject to garnishment, 348.
Public property, rule as to levy upon, 235.
Purchase money, no exemption in actions for, 807.
Purchaser of real estate, when interest leviable, 286.
Quasi domicil of corporation, 89.
Quasi non-residence, when ground of attachment, 181,
Real estate, when leviable under attachment, 284.
pre-requisites to levy, 284-5.
what interest in is leviable, 285.
interest of purchaser at sheriff's sale, 286,
interest of mortgagor, 287.
are to pages.]
INDEX
713
Real estate, when may levy upon the equity of redemption, 287.
when absolute transfer is a mortgage, 288.
interest of mortgagee, 288.
vendor and purchaser, 289, 291.
estates held in trust, 291-6.
express trusts, 292.
resulting trusts, 293.
beneficial and trust powers, 294.
estates in expectancy, 296.
marital rights, 297–8.
tenants in common heirs and devisces, 298–9.
effect of levy upon realty, 299.
mode of attaching, 404–5.
Receiptor, receiptor stands in the relation of bailee to the sheriff, 434.
duty and liability of receiptor, 435.
terms of receipt as affecting his liability, 436.
not liable until there is an inability or refusal to actached
goods delivered, 437.
under what circumstances he can raise the question of title to
the property, 438.
what defenses he may make in an action for conversion, 439.
rule of damages therein, 441.
nature and extent of sheriff's liabilities for Iaches or official
misconduct, 442.
Receivers, property held by, not subject to garnishment, 848.
Removal of property from State, sce FRAUDULENT DISPOSITION.
Replevin, see ACTIONS EX DELICTO.
Representatives, see PERSONAL RepresentatIVES.
Residence, see NON-RESIDENT.
Resident, see NON-RESIDENT.
Resulting trusts, when creating a leviable interest, 293.
Return of levy by sheriff, 452.
Rhode Island, laws of, relating to attachments, 546.
64
exemptions, 607.-
Right of action, necessary to attachment, 23.
rule as to when the right accrues See MATURITY OF CLAIMS.
Sales, below cost, effect of, 157.
*
unusual, without paying debts, 158.
for cash, when evidence of fraud, 151.
see also FRAUDULENT DISPOSITION OF PROPERTY, and FRAUDU-
LENT TRANSFERS,
Scotch system of attachments, statement of, 12.
Second attachment, when permitted, 897.
Secrecy, when indicating, intent to abscond, 134, 186.
714
INDEX.
[References
3
Secreting property, effect of, 165.
see also FRAUDULENT DISPOSITION OF PROPERTY.
Secret and dormant partners, attachment in case of, 197–8.
Service of summons, must be made within 30 days, 895.
what constitutes service, 395.
when waived by personal appearance, 896.
effect of failure to serve, 397.
by publication, requisites of, 895.
Sheriff, personal property in hands of not attachable, 338.
Quere as to moneys arising from sale of goods, 839.
Execution of the warrant, duty of the sheriff, immediate action,
401.
reasonable diligence in discovering goods required, 402.
rule where there is a "confusion of goods," 403.
proceedings where attached property is claimed by third parties,
403.
mode of attaching property, 404.
real estate, filing lis pendens, 404.
what is a sufficient description, 405.
movable personal property, 406.
securing control of goods, 407.
when dwelling houses may be broken open, 408.
rule as to breaking open inner doors, safe deposit vaults,
trunks, boxes, etc., 408.
how property incapable of manual delivery may be levied, 409.
contents and service of notice in such cases, 409.
effect of notice, 410.
certificate to be furnished by third party indebted or bolding
property, 411.
effect of refusal, examination by the court or referce, 412.
rules governing the examination, 413.
collection of attached debts by the sheriff, 415.
when the plaintiff may unite as plaintiff with the sheriff, 416.
sheriff must first secure valid lien upon the debts or property,
417.
sheriff must file inventory of attached goods, 418.
effect of failure to file same, 419.
must sell perishable property, 419.
Attachment of vessels and of goods thereon, domestic vessels, 420.
attachment of foreign vessels, 421.
when same may be sold, 422.
rule when several warrants are levied on same vessel or a share
therein, 423.
attachments of goods on vessels, 425.
what property may be levied upon, 426.
are to pages.]
715
INDEX
Sheriff, levied upon stock or interest in corporations, 426. İş
custody of attached property, 427.
must remain in sheriff's control, 428.
otherwise levy becomes dormant, 428.
character of possession necessary to uphold levy, 430.
sheriff's liability in respect to attached property, 431.
usually held to reasonable degree of care and diligence only,
431.
rule not applicable when left in defendant's care, 432.
property in custody of receiptor, 433.
receiptor stands in the relation of bailee to the sheriff, 434.
duty and liability of receiptor, 435.
terms of receipt as affecting his liability, 436.
not liable until there is an inability or refusal to attach goods
delivered, 437.
under what circumstances he can raise the question of title to
the property, 438.
what defenses he may make in an action for conversion, 439.
rule of damages therein, 441.
nature and extent of sheriff's liabilities for laches or official
misconduct, 442.
priority among attaching creditors, 442.
priority between attachments and executions, 443,
when priority is lost by dormancy, 444.
how lost by fraud or defective practice, 445.
how lost by change in pleadings or process, 446.
duties of sheriff after judgment, 447.
to whom executions issue, 448.
application of process, 448.
application of process in case of death of attachment debtor,
450.
restoration of property to defendant, 450.
canceling lis pendens, 451.
sheriff's return, 452.
trial of right to hold property fraudulently transferred, 458.
applies to tangible assets but not to mere credits, 454.
Quere, can the attaching creditors maintain a bill to vacate as-
signments of tangible property attached, 455-6.
Simultaneous attachments, see PRIORTIES,
writs of attachment and arrest, 898
Slander and libel, see ACTIONS EX DELICTO.
South Carolina, laws of, relating to attachments, 547.
laws of, relating to exemptions, 607.
Special partners, see LIMITED PARTNERSHIP.
716'
[References
INDEX.
Statutes of the States and Territories relating to attachments, 505-
560.
exemptions, 561-619.
(for the particular page relating to any particular State, see
title of State.)
•
Stock and feed, when exempt, 8-21, 2.
Stockholders, of unincorporated associations, 227.
of corporations, 227, 8.
Stoppage.in transitu, priority of right over attachment, 245.
Strict construction, when applied to attachments, 8–19.
Subject of action, meaning of term, 101.
Suits in equity, not applicable to equity proceedings, 69.
but not prohibited by equity relief in a money judgment, 70.
Quere, whether applicable to foreclosures, 70.
so allowed in Iowa, 71.
distinction between equity relief and equity debts, 72.
applicability to contracts payable in goods, 73.
same rule in Georgia, 73.
Summons, service of, see SERVICE OF SUMMONS.
must be issued prior to granting of warrant, 394.
Sureties, sec UNDERTAKING.
Team, when exempt, 812-14.
Tenantry by curtesy, when leviable, 297.
Tenant in common, see JOINT TENANTS.
Tennessee, laws of, relating to attachments, 548.
exemptions, 608.
Texas, laws of, relating to attachments, 550.
* exemptions, 611.
66
"C
Threat, effect of, 143.
to make assignment, 167, 171.
Tort, see ACTIONS EX DELICTO.
place where cause of actions arises on, 99.
Trespass, see ACTIONS EX DELICTO.
Trespasser, see SHERIFF.
Trover, see ACTIONS EX DELICTO.
Trunks, boxes, etc., when opened by sheriff, 408.
Trust estates, when leviable, 291-6.
Trustees and receivers, property held by, not subject to garnishment,
848.
Undertaking to procure attachment, necessary in a valid attachment,
883.
time when it must be executed, 884.
form of the undertaking, 884.
are to pages.]
INDEX.
717
Undertaking to procure attachment, statutory requirements, the sure-
ties, 385.
amount of bond, acknowledgments, &c., 386.
amendment of undertaking, 887.
liability of sureties, extent of, 888.
how enforced, 889.
when counsel fees are covered by, 889.
"damage to property," 891.
general principle relating to actions on undertakings, 892,
to discharge attachment, 402.
liability of sureties in such a case, 463.
application by one of several defendants, 464.
filing bond and justification of sureties, 465.
application where partner is sued individually, 466.
when attachment will lie in an action on, 846.
Unincorporated association, see JOINT STOCK COMPANIES.
•
Unliquidated damages, attachment not allowed where damages dis
cretionary with jury, 61.
its application in actions ex contractu, 61.
the general rule formulated, 62.
contingent damages too remote, as a basis for the warrant, 62.
rule applied to actions for accounting, 63.
extent of rule in New York State, 63.
exceptions to the rule stated, 64.
the contract must furnish the rule of damages, 64.
application to actions for penalties, 65,
application to actions for loss of goods, 65
and special warranties, 66.
application of the rule where attachments are limited to "debts,"
66.
in actions for negligence, 67.
damages for breach of contract, 68.
application of rule to the Code of Civil Procedure, 68.
claims arising on, when subject to garnishment, 853.
and see ACTIONS EX DELICTO.
Unusual haste, when evidence of intent to defraud, 158–79.
Utah Territory, laws of, relating to attachments, 551,
*4
exemptions, 613,
Vacating attachments, mode of vacating attachments, 457.
for defects in original papers, 457.
time when the motion should be made, 458.
by whom made-the defendant, 458,
subsequent lienors and purchasers, 459.
founded on answering affidavits, 400.
ta
718
INDEX
[References are to pages.]
Vacating Attachments, additional proo23 by plaintiff, 460.
character of such proofs, 461.
principles governing the decision of the courts, 461.
discharge of attachment by filing bonds, 402.
liability of sureties in such a case, 463.
application by one of several defendants, 464.
filing bond and justification of sureties, 465.
application where partner is sued individually, 466.
Valuation of property. See INVENTORY.
Vendor, when his interest in real estate ceases to be leviable, 289, 291.
Vermont, laws of, relating to attachment, 553.
66
66 exemptions, 614.
Vessels, when removal of will not warrant attachment, 155, 156.
Attachment of vessels and of goods thereon.
domestic vessels, 420.
attachment of foreign vessels, 421.
when same may be sold, 422.
rule when several warrants are levied on same vessel or a share
therein, 423.
attachment of goods on vessels, 425.
Virginia, laws of, relating to attachments, 555.
45
"C exemptions, 615.
Voluntary conveyances, when fraudulent as to creditors, 258, 259.
Waiver of tort, in favor of assumpsit, 50–52.
of service by appearance, 896.
of exemptions, 308–311.
Warrant of attachment, requisites of, 393.
**
when, and by whom granted, 894.
must be followed by service of summons within thirty days,
895.
when second warrant may issue, 397.
when may issue simultaneously with warrant of arrest, 898.
against public officer, 899.
against plaintiff, 400.
66
Washington Territory, laws of, relating to attachments, 356.
66 exemptions, 616.
West Virginia, Laws of, relating to attachments, 557.
66
66
exemptions, 617.
Wisconsin, laws of, relating to attachments, 557.
exemptions, 618.
Working tools, when exempt, 814–17.
66
66
Wyoming Territory, laws of, relating to attachments, 559.
66 exemptions, 619.
•
INDEX OF FORMS.
About to fraudulently dispose of property, statement of, in affidavit,
476.
Absconding. Statement of, in affidavit, 471.
Acknowledgment in undertaking, 481
Affidavit, to procure attachment, 468–480,
statement of title of cause, 469.
formal averments, 468.
cause of action, 409.
Grounds of attachment :
foreign corporation, 470.
non-residence, 470.
absconding, 471.
removal of property, 472.
fraudulent disposition of property, 473.
fraudulent general assignment, 475.
about to dispose of property, 476.
conversion of public officer, 477–9.
to procure discharge of foreign vessel, 490.
for leave to sue in aid of attachment, 493.
to procure discharge of firm property on filing security, 500.
to discharge attachment as to non-leviable firm property, 502.
Approval of undertaking, judge's indorsement of, 481.
Attachment, affidavit to procure warrant, 468–477.
same against public officer, 477-9.
undertaking to procure warrant, 480-1
warrant of attachment, 482.
warrant of, against public officer, 483.
filing lis pendens as to real estate, 483,
sheriff's certificate on warrant, as to third parties, 484-5.
certificate of third party as to property or debts, 486–7,
plaintiffs undertaking to hold goods in hands of carrier, 487.
undertaking to procure discharge of domestic vessel, 488.
affidavit by owner for discharge of foreign vessel, 490.
order to show cause thercon, 491.
undertaking by plaintiff therein, 491.
bing
[719]
720
INDEX TO FORMS.
[References
Attachment, order discharging vessel for want of bond, 492.
affidavit for leave to join with sheriff in suit against third par
ties, 493.
order authorizing same, 494.
return to attachment, 495.
inventory annexed to same, 496.
order for sale of perishable property, 496.
motion to vacate or modify warrant, or to increase security,
497.
motion to discharge attachment on giving security, 498.
undertaking to discharge attachment, 498.
notice of filing same, 499.
order discharging attachment in same, 499.
motion to discharge individual attachment levied on firm prop-
erty, 500.
undertaking in same, 501.
affidavit in case of non-leviable firm property, 502–5.
order discharging attachment as to partnership fund, 504.
Bond. See UNDERTAKING.
Carrier, goods in the hands of, how attached, 487.
Cause of action, statement of, in affidavit, 469-470.
Certificate of sheriff, to attach property held by third parties, 484.
by third party, of no property or debts, 486.
of property or debts, 486.
66
Conversion of public funds, statement of, in affidavit, 477–9.
warrant of attachment for, 483.
Discharging attachment, motion for irregularities, 497.
on filing security, 498.
46
}
undertaking thereon, 498.
order therein discharging attachment, 499.
as to firm property, affidavit therefor, 500.
undertaking thereon, 501.
affidavits in case of non-leviable firm property, 502-3.
order discharging attachment as to partnership funds, 504.
Domestic vessel. See VESSEL.
Foreign corporation, statement of, in affidavit, 470.
Foreign vessel. See VESSEL.
Fraudulent disposition of property, statement of, in affidavit, 473.
Fraudulent general assignment, statement of, in affidavit, 475.
General assignment, when fraudulent, statement of, in affidavit, 475.
Grounds of attachment, statement of, in affidavit. See AFFIDAVIT.
are to pages.]
721
INDEX TO FORMS.
Increase of security, notice of, motion for, 497.
Justification, in undertaking, 481.
Levy, upon real estate, 488.
on property in hands of third parties, 484.
Lis pendens, to bind real estate, 483.
Modification of warrant, notice of motion for, 497.
Motion, to modify warrant, 497.
to vacate warrant, 497.
to increase security, 497.
to discharge attachment on giving security, 498.
to secure discharge of firm property on giving security, 500.
Non-residence, statement of, in affidavit, 470.
Notice, of attachment to bind real estate, 483.
of motion to vacate warrant, 497.
16
discharge attachment on giving security, 498.
of filing undertaking in same, 499.
Officer.
See PUBLIC OFFicer.
Order, for discharge of attachment against domestic vessel, 489.
discharging foreign vessel for want of a bond, 492.
authorizing plaintiff in attachment to sue in name of himself
and sheriff, 494.
for sale of perishable property, 496.
discharging attachment on filing security, 499.
discharging attachment as to partnership property, 504.
Order to show cause, why foreign vessel should not be discharged
from levy on filing undertaking, 491.
Partnership property, affidavit to secure discharge of levy on, in suit
against a partner, 500.
undertaking in same, 501.
Perishable property, statement of, in sheriff's return, 496.
order for sale of, 496.
· Public officer, affidavit for attachment against, 477-9.
warrant of attachment against, 483.
Real estate, notice of attachment to bind, 488.
Removal of property, statement of, in affidavit, 472.
Return, of sheriff to attachment, 495.
inventory annexed thereto, 496.
statement of perishable property in, 496.
48
722
INDEX TO FORMS.
Sale of perishable property, order for, 496.
Security See UNDERTAKING.
Sheriff, certificate of, to attach property in hands of third parties, 484.
return of, upon warrant of attachment, 495.
"inventory annexed to return; 496.
statement of périshable property, 496.
sale of perishable property by, 497.
Title of cause, statement of, 468.
Undertaking, to procure attachment, 480.
to hold goods in hands of carrier, 487.
to discharge domestic vessel or share therein, 488,
to hold foreign vessel, 491.
to discharge attachment, 498.
to discharge attachment as to firm property, 501.
Vacating attachment, notice of motion, 497.
Vessel, domestic undertaking to procure discharge of, 488.
order for discharge of, 489.
foreign affidavit to procure discharge of, 490.
order to show cause thereon, 491.
undertaking to hold same, 491.
order discharging same for want of undertaking, 492.
Warrant of attachmehț, in ordinary actions, 482.
in action against public officer, 488.
UNIV.
IND Y
; MAR241

Kneeland, S.F.
Law of attach-
ments in civil cases
Kneeland,S.“.
Law of attach-
ments in civil cases
LOCATION
BORROWER'S NAME
17917
K68a
1885
17917
DATE
JAN 15 60
про
** pedig – Seguin @ $
že digipravė – šoghệ of 12+ z«Degree** $

LAW LIBRARY
University of Michigan
3 5112 104 081 536