10 Pa. 61 | Pa. | 1848
We lay aside the record of the judgment of the court below, on the plea of nul tiel record, which was brought into this court at the instance of the defendant in
I do not perceive how this court could reverse the judgment on the issue of nul tiel record, because the party against whom it was rendered, has not complained of it, or brought it here; except as an offset to the errors assigned to the judgment on the other issue. To the scire facias, the defendant pleaded nulla bona. That issue was decided in his favour. The judgment, if right, is final against the plaintiff; and, if there were errors on the trial, fundamental errors, the law allows him to have them corrected. He has brought the record of the trial, and the charge of the court, upon a bill of exceptions. These will be examined, because they are legitimately before us.
As.the cause will go back, the defendant will, of course, take such measures as he thinks best to give him the full benefit of the radical defect, as he alleges, which entitled him to judgment on the issue of nul tiel record. Upon that alleged defect, we express no opinion whatever, as it may perhaps come again, in proper shape, before us.-
There is nothing in the exception to the admission of’ Cowperthwait as a witness. He may have some remote interest in the controversy; but it is too remote to affect his competency: it may weigh 'against his credit. The general rule is, that an agent may be admitted as a witness: we see nothing in this case to take it out of that general rule. Indeed, he probably acted under instructions from the garnishee, who now appears, adopts, and defends his acts.
The main questions arise on the instructions of the court to the jury. [His honour here stated the three points.]
It is admitted and proved that all the deposits of money and the drafts and bills were made by Warwick after the attachment was
The witnesses to prove the trust were Warwick himself, Cowperthwait, the cashier of the bank, and Rogers and his partner, Sagory. I make no remark on the facts as proved by these witnesses, because, the jury having found the fact that the moneys and effects belonged to Rogers & Co., that matter is closed up.on this proceeding, except as illustrative of principles properly applicable to the case.
The attachment is in rem for the purpose of compelling the appearance of the defendant; and if Warwick, instead of'drawing this money out of the bank, had appeared and entered bail to the action, the money would have been free, and the bank might then have paid it to him. But the garnishee chose to be sole judge and umpire, and pay out the money to Warwick on his checks, thus in fact recognising his right to the possession and control of the money, and yet taking the hazard of defeating the object of the attachment. The first question that occurs is this: could the bank, if the attachment had not been served, have resisted the claim of Warwick to the money he had deposited with them ? They received it and the bills as his, entered them on their books as his, and were bound, in the absence of any attachment, to have gaid the funds to him. How, then, were they placed in a better situation by the service of the attachment ? The attaching creditor stands in the place of Warwick. If they could not allege as against Warwick, that the funds were not his, neither can they allege against the attaching creditor that they are not his, and yet turn found and pay the money to Warwick, to enable him to defeat his creditor. In Sergeant on Attachment, 94, it is said that the garnishee may plead everything to the scire facias which he could plead against the defendant; and if they could have pleaded against the defendant that the money and the products of the bills were not his, why did they pay them to defendant after being warned by attachment ? The law countenances not those operations by which its legitimate force and effect may be evaded. Thus, in the case of Silverwood v. Bellas, 8 W. 420, it was resolved that Silverwood, the garnishee, who had received money in trust, to deliver it over to the defendant, was liable because he did deliver it over. Here it cannot be gainsayedbut that the bank was bound to deliver over the money to the defendant in the absence of the attachment. It is worthy of remark that the person alleged by the garnishee to be the cestuis que trust, never gave notice to the attaching creditor
The ownership of the defendant is evidenced and maintained by the customary evidence of right, that is, the deposit in the bank in his own name, the books of the bank, the drawing of bills and checks in his own name. Under these circumstances, it is against public policy that the garnishee, that is, the bank, should be permitted to allege that the books were false, for the purpose of defeating the creditor, and yet true for the purpose of paying over the funds to the defendant. Here is the case of a ma.n who had been declared a bankrupt in England, and came to this country and transacted a business to the amount of one hundred thousand dollars and more in the United States Bank, in his own name, and when the funds are attached in the hands of the institution, they are paid over to the - defendant — not paid to the person who is alleged to have been the cestui que trust, and the defendant, the cestui que trust, and the cashier, are the witnesses to make out the case. It is impossible to look upon the case without vehement apprehension that, if it is allowed to pass into precedent, and make the law of analogous cases, the most disastrous frauds might be the result. The house of Rogers & Co. was located in New York, Rogtrs himself was absent on the continent of Europe, and Sagory, the partner, in New York, swears that he knew Warwick personally first in the year 1837, which shows that confidence was of marvellously rapid growth. Whether the debt of the plaintiffs was incurred by Warwick in the course of his dealing on the strength of this fund or not, is not particularly stated in the case. We fear it would open too wide a door for the infliction of fraud, if such practices were tolerated. An individual made out to be insolvent, may have $100,000, nay, twice that amount, in a bank, entered on its books in his own name, his checks accepted and paid. What amount of credit may he not obtain upon this lure held out to the community ? If the cashier, and the party claiming the money, or any other persons, are permitted to prove that the entries are untrue, that the depositor has not a cent in the bank, the injury may be deep and grievous to credit, and the source of severe loss to those who have put faith in the integrity and uprightness of banking institutions. The law will not give its help to assist one man to cheat others. It is on this principle that a real bond fide change of possession, apparent to the public, must accompany and follow the sale of chattels in order to take them
There was slight evidence, indeed, that the money raised on the foreign bills drawn by Warwick, and endorsed by Rogers & Co., were used by Warwick for the benefit of Rogers & Co. — too
Judgment is reversed upon the third, fourth, and fifth errors assigned, and a venire de novo awarded.