Planters' & Merchants' Bank of Mobile v. Andrews

| Ala. | Jan 15, 1839

COLLIER, C. J.

— It has long been the most general practice in this State, to move to quash attachments in the manner in which the motion was submitted in the case at bar: — A practice suggested ex majore cautela, and originating doubtless, from^an apprehension that an appearance as counsel, operates a waiver of all defects apparent upon the face of the proceedings — an idea, certainly without any foundation, either in law or reason.— And motions thus submitted have been entertained by our courts, under the impression that it was competent for them, mero molu, to repudiate a case commenced by attachment where the. remedy was unauthorised, or the requisites of the statute were not complied with. In a case rendering it necessary, it might indeed be a matter of serious inquiry, whether a practice that has so long prevailed, should be held irregular, however much we might feel inclined to- disregard it, were it res integra.

But the present case does not require us to consider the general powers of an amicus curice, for the record clearly discovers that several of the gentlemen who presented themselves before the County court in that character, had such an interest in the (pntroversy, as author-ised them to submit a motion to quash the attachment, issued at the suit of the plaintiff. They had been summoned as garnishees, to answer as to their indebtedness to the defendant, and at the time they made their motion, the motion of the plaintiff’s attorney for a judgment by default, was pending before the court. So we think it clear, that at least several of the gentlemen who advocated the motion to quash, cannot be regarded as mere volunteers without an interest — and either one of them being authorised-as a privy in interest, to point out defects in the proceedings, it is immaterial what is the predicament of the others.

The true inquiry, then, is, did the County court err in its judgment? The bond on which the attachment issued, does not correspond with the attachment. It recites the time when the court is to be holden, to be the first Monday in June, without designating it as the next County court, &c. If the condition of the bond contained these latter words, we will not say that they would not authorise the rejection of the former, viz. “ the first Monday in June next,” and the bond then be a sufficient compliance with the law; although this court; under its first organization, decided that a capias ad satisfaciendum, “returnable to the next term of the court, to be holden,”' .&c. at a time not appointed by law, was absolutely void—(Brown vs. Simpson, 3 Stew. R. 331.)

In Lyon vs. Malone, (4 Porter’s R. 414,) this court determined that a writ of error not ¡.showing the term of the Supreme court to which it was returnable, might be amended by its teste, or by the bond or citation ; — that / the time- of its issuance being ascertained from either of these sources, the statute upon the subject ascertains the return to be the next succeeding term of the court. In the case before us, the statute is not so explicit on this point, but the court to which the proceedings are returnable, and the time when they are to be returned, is prescribed by the officer issuing the attachment, and must appear on the face of the proceedings—(Aik. Dig. p. 38, sec. 6.)

In Lowry vs. Stow, (7 Port., 483" court="Ala." date_filed="1838-06-15" href="https://app.midpage.ai/document/lowry-v-stowe-6529363?utm_source=webapp" opinion_id="6529363">7 Porter, 483,) the bond described the attachment as being returnable near two years previous to its issuance, and was considered by this court as defective.

The bond, then, was defective; yet the court should not, for that cause, have quashed the proceedings. This court has heretofore decided, under- the influence of the seventeenth section, (Aik. Dig. p. 42,) of the attachment law, as revised in eighteen hundred and thirty-three, that a defective bond was not a sufficient cause for quashing the proceedings by attachment, unless the plaintiff declined executing a perfect bond —(Lowry vs. Stow, 7 Port., 483" court="Ala." date_filed="1838-06-15" href="https://app.midpage.ai/document/lowry-v-stowe-6529363?utm_source=webapp" opinion_id="6529363">7 Porter, 483; see also Pearsall & Stanton vs. Mid dlebrook, 2 Stew. & Por. R. 406; and Johnson vs. Hale, 3 Stew. & Por. R. 331.)

' It is further insisted for the defendant, that the record does not disclose such a liability as will form the basis of an attachment — that the defendant may probably never become chargeable to the plaintiff — a fact which cannot be known, until after the protest of his bills for non-acceptance or non-payment; so that at most, his undertaking with the plaintiff is contingent.

In Benson vs. Campbell, (6 Porter’s R. 455,) it was held that “ under our attachment laws, a plaintiff must show that the defendant is indebted to him in a sum of money past due, or else in a sum of money to be paid at a future dayP That lí a possibility depending upon a contingency which may never happen — the dishonor of a draft, for the payment of which the defendant was a surety,” could not be proceeded on by attachment. But neither the writ, affidavit or bond, inform us that the defendant’s estate was attached to satisfy a contingent liability, and for any thing shown by either of these, the undertaking for which the plaintiff is seeking redress, is absolute.

The endorsement on the attachment, it is true, discloses the character of the plaintiff’s demand — yet this cannot be regarded a part of the record, inasmuch as the law does not require the cause of action to be endorsed on the attachment. This point was brought directly to the view of this court, in Lowry vs. Stow, (7 Porter’s R. 483,) and it is there shown that the act of eighteen hundred and seven, which makes it “ the duty of the clerk, or plaintiff’s attorney, to endorse on the back of the writ the cause of the action, the nature of the specialty, or the grounds on which the action is founded,” as indicated both by its terms and its title, “ applies to the initiatory process in a cause issuing from courts in which clerks are necessary officers.” This decision still meets our entire approbation — and the endorsement not constituting a part of the record, affords no warrant for the judgment of the County court.

The only remaining question raised is, whether a corporation can', in any case, recover its debts by attachment. Our statute upon the subject enacts, that “original attachments, foreign and domestic, may be issued by any judge of the Circuit or County courts, or any justice of the peaceN And further, that' “ every judge or justice, before issuing an attachment, shall require the party applying ' for the same, his agent, attorney or factor, to make affidavit in writing, that the person against whom the attachment is prayed, absconds,” «fee. “ and shall- further require the person applying for the attachment, his agent-, attorney of factor, to swear to the amount of the sum due' the plaintiff,” &c.: “and shall further require tire plaintiff, his agent, attorney or factor, to give bond payable to the defendant,” «fee. The same statute also provides, that “ a writ of attachment may in all cases issue against the property of a debtor legally subject to the process of at-, tachment, although the debt or demand of the plaintiff be not due,” &c.—(Aik. Dig. p. 37, 39, s. 2, 3, 7.)

The" right of a corporation to avail itself of.the remedy by attachment, arose in The Trenton Banking Company vs. Haverstick, (6 Hals. R. 171.) The objection, there, was rested upon'the ground that the law of New Jersey required the oath, in order to obtain the attachment to be made by the applicant for the writ, and'hence it was argued, that inasmuch as an artificial person could not 'make an affidavit, the bank could not entitle itself to that remedy. But the court remarked, that “ a construction of the act respecting attachments would be unsound and indefensible, and entirely inconsistent with the intention of the legislature, which should preclude a corporation from suing out a writ of attachment; as must be the result, if the'act be so construed as to require the affidavit from the corporation itself, ór to deny the use of the writ without such affidavit. The law which gives existence to the corporation, — which' allows it to sue and be sued, necessarily confers the authority to perform by its agents, by whom alone it can act, incidental services like that in question.”

Again, say the court: “ In general, there is a manifest propriety in the making of such affidavits by the cashier, or president, or one of the acting clerks of the bank, because acquainted with the duties of their stations, with its pecuniary affairs, and of course with its creditors and debtors. But they are, and act in so doing, as the agents of the corporation.” j

The court consider the general right to sue and be sued, and so construe the statute of New Jersey, as to make the term “ applicant,” as far as corporations are concerned, not to inhibit the instrumentality of agents or attorneys.

Our statute expressly authorises the affidavit and bond to be made and executed by an agent, attorney, &c.; and the right to proceed by attachment, results from the incidental power and liability of suing and being sued, which pertains to all corporations, even, at common law; unless taken away by positive enactment. The counsel for the defendant in error, conceding the justness of this reasoning and conclusion, argues that it has no application to hanking corporations in this State — that the con-, stitution, by declaring that “ the remedy for collecting debts shall be reciprocal, for and against the -bank”— (Section five, article on banks, of the constitution of Alabama,) — denies to the plaintiff the remedy by attachment. That inasmuch as the plaintiff cannot be subject to such a proceeding, to allow it to avail itself of it, would be a violation of the reciprocity intended to be secured by the constitution. This argument we think rather more specious than solid. With a view to the proper understanding of the constitutional provision, it may be well to consider the circumstances under which it was adopted.

In the charters of the Huntsville, St. Stephens and Mobile banks, (the only banks established previous to the organization of the State government,) these corporations were invested with power to proceed summarily against their debtors, and recover a judgment at the first term of the court, while a creditor of the banks was required to pursue the ordinary forms to collect his debt. To do away with such inequality, by subjecting the banks, as far as practicable, to the remedies they might employ, the provision we have cited, was made a part of the constitution. Its purpose was clearly to restrain the legislature from granting to banking corporations exclusive facilities in the collection of their debts, The attachment laws are general in their terms — offering to all alike, the benefit of their provisions, and operating upon all who place themselves in the predicament in which they con-lemplate the debtor. That the plaintiff, as an artificial person, never can abscond, is_ clear, and cannot, for that cause, be subject to an attachment; yet this does not depend upon any negative terms used in the statute, but results from the nature of the plaintiff’s character. The proceeding in the present case, is intended as a substitute for the personal service of process; if the defendant appears and gives bail to the action, the writ of attachment becomes functus officio, and the case progresses as if it had been commenced in the usual manner. Now, as the plaintiff could not abscond, but must abide the ordinary procedure of the law, it is difficult to discover any foundation in justice for the defendant’s objection. In fact, if an attachment was denied to the plaintiff, there would be plausibility in an argument, that by its denial, the plaintiff did not occupy ground in regard to the collection of its debts, as favorable as an individual creditor — while it was always in a condition to be sued, its debtors, by absconding, might escape'its suits. We are clear in the opinion, that the constitution does not lend any aid to the defendant.

The argument, that natural persons are alone entitled or liable to the process of attachment, cannot be maintained. It is true, that the statute would seem to refer to such persons only, yet it is well settled, that the term “person,” in a statute, embraces not only natural, but artificial persons; unless its language indicates that it was employed in a more limited sense, or the subject matter of the act leads to a different conclusion. So far as the case at bar is concerned, we can discover no reason for restricting the meaning of the legislature.

In the Bank of the United States vs. the Bank of North Carolina, (6 Pet. 29" court="SCOTUS" date_filed="1832-01-24" href="https://app.midpage.ai/document/united-states-v-state-bank-of-nc-85761?utm_source=webapp" opinion_id="85761">6 Pet. Rep. 29,) it was decided, that a corporation was. a person, when placed in circumstances identical with those of a natural person—(s. p. The Farmers' Bank of Delaware vs. the Elkton Bank of Maryland, 12 Pet. Rep. 134, 135; and U. S. vs. Amedy, 11 Wheat. R. 392.)

It cannot have been supposed by the County court, that the defendant would have been without remedy, if the attachment was wrongfully or vexatiously sued out. If such an idea influenced its decision, it was clearly erroneous. The obligors in the bond' would be bound to respond in damages, if the defendant was improperly aggrieved.

In examining the questions presented for our decision, we have not felt authorised to look into the declaration. Upon the motion to quash, it did not regularly come before the court. If it be variant from the writ, or deflective in itself, the defendant’s remedy is entirely different from that he has adopted.

In our opinion, the judgment must be reversed, and the case remanded.

GOLDTHWAITtí, J., not sitting.