| Ill. | Jun 15, 1853
Lead Opinion
Two questions are presented in this case. First, the affidavit for the attachment charges, that Falmestock is a non-resident, and that Moeller is about to depart the State, &c.
Moeller alone pleaded in abatement that he was not about to depart, &c.
Upon the trial of this issue, the court overruled an objection to, and admitted evidence of, the indebtedness, and we are of opinion it was correct.
Secondly, Moeller sold his interest in the profits of an unsettled partnership, estimated at $300, to Merriman, for which Merriman bound himself “ to pay all the expenses incurred by said William F. Moeller, while on said journey from the town of Lacón, Marshall county, Illinois, to California, the said William F. Moeller stopping at San Francisco.” Is this such an interest as can be reached by garnishment, under proceedings by attachment ? We are of opinion that it is liable.
The statute provides that “lands, tenements, goods, chattels, rights, credits, moneys, and effects of said debtor of every kind” may be attached, “ in whose hands or possession the same may be found.” Rev. Stat. 45, p. 63, sec. 1. Debts not due are attachable, unless it be by a negotiable instrument, p. 67, sec. 17, and garnishee may set off demands due him by defendant, p. 69, sec. 25. The Massachusetts statute makes “ goods, effects, and credits intrusted and deposited ” attachable; and in determining what were goods, effects, or credits within its meaning, her courts have held that contingent interests are not attachable. 1 Mass. R. 470; 3 lb. 33, 68.
Dissenting Opinion
dissenting. As I understand this contract, the demand was contingent, dependent entirely upon the party going to California and incurring expenses on the journey. The agreement was to pay his expenses to California, and nothing else. The parties had a right to make such an agreement, and the court has found that it was made in good faith. If such was the case, it is immaterial what the consideration was, whether one dollar or one thousand dollars. The liability was the same.
The party did not agree to pay at all events so much money as would be reasonably sufficient to take a passenger to California, but he agreed to pay the expenses of a particular person there. Till that person went and those expenses were incurred, no debt was created. Such was the contract which the parties made in good faith, and with no intention to defraud any person. The court, however, has made a different contract for them, making a liability certain, which the parties made contingent, as they had a right to do. The parties agreed upon one measure of liability, which was lawful, and the court has established another. This, in my judgment, we have no right to do.