21 Pa. 443 | Pa. | 1853
The opinion of the Court, filed was delivered by
— On the 23d January, 1843, a foreign attachment was issued by Young’s executors against David Cline, which was executed on the 30th January, 1843, by attaching the amount of a promissory note due by Espy L. Anderson to Alfred Cline, in the hands of Anderson as garnishee. On the 7th February, 1847, judgment was obtained against Cline, the defendant in the attachment. A scire facias thereupon issued against Anderson the garnishee, who pleaded nulla bona, on which issue was joined. On
The deposition of E. M. Mealy was offered by the garnishee, to prove that the assignment from Cline to Poulke was made before the issuing of the attachment, and was for a valuable consideration, and to prove further, that the assignment to the witness was made solely to enable him to collect the note. The deposition was rejected, and this is the first error assigned.
The party objecting to a witness may examine him on his voir dire, or resort to other evidence to establish the objection; but after electing one of these courses he cannot resort to the other. Nor can the witness himself be received at the instance of the party offering him, to repel the objections on the ground of interest established by other evidence. As the evidence stood when the deposition of E. M. Mealy was offered, he appeared to be the equitable assignee of the note in controversy. As the possession of it by Anderson is relied upon as primd facie evidence of its payment, it is proper to examine the case in that aspect. The competency of the witness may be decided upon by considering the effect which the verdict may have upon his interest.
A foreign attachment is not altogether a proceeding in personam. It is in the nature of a proceeding in rem, to which, for the purposes of the particular action, all the world are parties. In a writ of foreign attachment, personal notice to the defendant is not required. On the contrary, the action proceeds on the ground that actual notice cannot be given. By the custom of London, from which our proceedings are derived, the garnishee was not warned until the sergeant-at-mace made return to the process awarded against the defendant, that he had nothing in the city or the liberties thereof, whereby he could be summoned, nor toas to le found within the same. After 'this return, and four defaults entered, judgment was rendered against him; under which the money, or effects of the defendant, in the hands of the garnishee, might be levied in satisfaction of the judgment. The domicil of the debtor was immaterial. But in Pennsylvania, the Act of 13th June, 1836, has made a change in this particular. A foreign attachment will not lie here, if the debtor resides within the Commonwealth, or is within the county at the time of the issuing of the writ. It is precisely because actual notice cannot le given, that the law has provided this method for the collection of debts against
It is true that the case of Fisher v. Lane, as reported in 3 Wilson 297, is occasionally cited to prove that where no notice is given to the defendant of proceedings in foreign attachment, they form no protection to the garnishee. Chancellor Kent disapproved of that decision, when delivering the opinion of the Supreme Court of New York, in Embree et al. v. Hanna, 5 John. R. 102. And Mr. Justice Huston, in delivering the opinion of this Court, in Coats v. Roberts, 4 Rawle 111, declared that Fisher v. Lane differed from “the prior and subsequent cases;” and he there held that “the.decision of a Court of competent jurisdiction, in a proceeding in rem, is conclusive on all the world.” But a decisive answer to the argument founded upon the case of Fisher v. Lane, is that it is misreported in 3 Wilson 297, and that no such principle as that supposed was ever decided in that case. The case is correctly reported in 2 William Blackstone 834, where the true ground of the decision against the validity of the foreign attachment appears. It was held to be invalid, not for want of actual notice, but for want of the constructive notice which the law requires. The issuing of a summons to the defendant, and a return of nihil, are indispensable to this; and for want of these requisites, the proceedings were held to be invalid and no defence to the garnishee: 2 Wm. Bl. 834. The case was decided in the Court of Common Pleas; and the King’s Bench afterwards regarded it as not in any respect standing in the way, when the true principle was affirmed that if a summons was issued and nihil retitrned, the proceedings were regular and barred the action brought by the defendant in the attachment against the garnishee: McDaniel v. Hughes, 3 Bast 367. It follows that if Mealy has not already received the money due on the note, this recovery of it from the garnishee will bar his claim. But Anderson’s possession of it is prima facie evidence of payment to the person appearing to be the owner, and authorizes
The objection to William Price’s deposition rests upon the assumption that the declarations of Cline were made after he had assigned the note to Eoulke. But this is the very matter in dispute. If Price be believed, Cline’s declarations were made before this assignment; for Price states that “ Cline had the note in his possession at the time — that he (the witness) took it into his hand and examined it,” and that he “ is positive that there was no assignment on it at that time.” This evidence was properly received.
The instructions given were quite as favorable to the plaintiff in error as he had a right to demand.
Judgment affirmed.