29 S.C.L. 378

Burrill v. Letson

Decided January 15, 1844

Court of Appeals of South Carolina · decided 1844-01-15

Before Richardson, J. Charleston, October Term,, 1843. Thomas W. Letson, the defendant, had been a contractor on the rail road between Orangeburg and Columbia, and unsettled demands to a large amount existed between him and the Louisville, Cincinnati and Charleston Rail Road Company, at the termination of his contract. For the recovery of these demands an action of covenant in the Circuit Court of the United States was brought by him against the Company, in which he recovered a verdict, and judgment was entered up 30th April, 1842. And the defendants removed the cause, by writ of error, to the Supreme Court. Afterwards the plaintiff Burrill sued out a writ of foreign attachment against the said Thomas W. Letson, and served a copy on his solicitors and on the Louisville, Cincinnati and Charleston Rail-Road Company. At October term following, the solicitors of Letson returned, “ That the said Thomas W. Letson has nothing in their hands, power or possession, which could be attached.— That they are practitioners as attorneys and solicitors, and have prosecuted an action against the Louisville, Cincinnati and Charleston Rail Road Company, for the said Thomas W. Letson, in which a verdict has been rendered against the defendants, and judgment entered in favor of the said Letson for a large sum, on which judgment a writ of error has been sued out by the defendants. And these respondents say that they owe the said Thomas W. Let-son nothing, but are his creditors, and pray to be hence dismissed with their costs.” The Louisville, Cincinnati and Carleston Rail-Road Company made their return as follows, that is to say:— “ James Gadsden, President of the said Company, upon oath, says, that in an action of covenant brought by the said Thomas W. Letson against the said Company, in the Circuit Court of the United States in this District, he obtained a verdict in April last against the said Company, for $18, 142 23, for which, with $527 65 costs, judgment was entered up, but the case has been taken by writ of error to the Supreme Court of the United States. And the said Company do not admit that there is anythiug due by them to the said Thomas W, Letson, except the sum of $491 25. And they have not in their possession or power, any other property, (fee. of the said Thomas W, Letson, than as above mentioned.” After these returns, the plaintiff Burrill filed his declaration and published the usual rule for the defendant to appear. On the 25th February, 1843, Thomas W. Letson, by his attorneys, commenced an action of assumpsit against the Louisville, Cincinnati and Charleston Rail Road Company, for other unsettled demands not included in the former action. And about the same time, the plaintiff Voorhis sued the said T. W. Letson by foreign attachment, and the writs were served on the solicitors of the said Thomas W. Letson, and on the Company, At the next term, the Company made the same return which they had made to the action of Burrill: and at the October term, 1843, the solicitors returned, “ that they are partners in business, and have prosecuted in the United States Court against the Louisville, Cincinnati and Charleston Rail Road Company, an action for the said Thomas W. Letson, in which a verdict has been rendered against the defendants, and a judgment entered in favor of the plaintiff for a large sum; on which judgment a Writ of error has been sued out of the Supreme Court of the United States. And these respondents have also prosecuted another action against the same defendants in this Court, where the same is yet pending: And these respondents say, that neither they nor either of them owe or owes the said Thomas W. Letson any thing, but are his creditors; and pray to be hence dismissed with their costs.” On the 31st October, 1843, the last return was filed by leave of the Court; and the same day this rule was granted. Burrill v. Letson. ) Voorhis 0. Letson. ) Ordered, That the Plaintiffs in these cases do show cause on Saturday next, why the garnishees should not be discharged, and the proceedings in these cases dismissed. On motion of Pettigru and Lesesne, for themselves, and for Thomas W. Letson. On 4th November, 1843, the rule to show cause was returned before his Honor Judge Richardson, and the parties relied on the foregoing facts, which were brought to the view of the court, and it was agreed that the question should be decided as if separate rules had issued, when the court made the following order: “On hearing the cause shown, It is ordered, That so much of the rules as relates to the garnishees, Pettigru & Lesesne, be made absolute; but that so much of the said rules as calls on the plaintiffs to show cause why the proceedings in attachment should not be set aside, be dismissed.” From this order an appeal was taken by Pettigru & Lesesne, on the following grounds: 1. That this court has no jurisdiction over the money recovered by Thomas W. Letson against the Louisville, Cincinnati and Charleston Rail Road Company, in the United States’ Court, and therefore the proceedings in these cases cannot be supported by the supposed attachment of the money recovered in that action. 2. That the admission by the debtors, that a small part of the judgment recovered in the United States Court is due to the said Thomas W. Letson, does not give this court j urisdiction over the fund, or any part of it, to compel the payment of the same to the said George P. Burrill, and therefore no proceedings could be had on the supposed attachment of the said demand. 3. That the plaintiff Voorhis cannot support his action by the attachment of the sum admitted to be due by the Company; for if such sum is supposed to be capable of being attached, it was exhausted by Burrill’s action, before Voorhis had issued his writ: nor can he found his proceedings upon the supposed attachment of the sum demanded of the Company in the action of assumpsit, for no part of that demand is admitted. 4. That if the amount admitted by the Louisville, Cincinnati and Charleston Rail Road Company to be due to the said Thomas W. Letson, is effectually attached by the said George P. Burrill, the same must be liable to be paid into court, and to be taken out by the said George P. Bur-rill, in satisfaction of his demand; and as the demand of the said George P. Burrill greatly exceeds the amount admitted to be due by the garnishees, there is nothing left to support the proceedings in the subsequent attachment of Voorhis. On behalf of Thomas W. Letson, a motion was also made by Pettigru and Lesesne, in the Court of Appeals, to reverse the order dismissing the rule to shew cause why the proceedings in these cases should not be set aside: and it will be insisted that there Was nothing in the hands of the garnishees at the time of suing out the'several writs of attachment, that could be attached; and that the rule should be made absolute, for the following, among other reasons: 1. That the writ in the case of George P. Burrill was feturnable to October term, 1842, and served on the Louisville, Cincinnati and Charleston Rail Road Company, and that before the suing out of the said writ, the said Thomas W. Letson had sued the said Louisville, Cincinnati and Charlesion Rail Road Company, in an action fur breach of covenant, and recovered a judgment in the Circuit Court of the United States; to reverse which judgment a writ of error was then, and is yet, pending in the supreme court; And that this court has no jurisdiction over the money recovered, or to be recovered, in the said action, and therefore the proceedings in these cases cannot be supported by the supposed attachment of the said fund. 2. That the admission of the garnishees, that a small part of the demand in suit is due to the said T. W. Letson, does not give this court jurisdiction over the fund, or any part thereof, to compel the payment of the same, or any part thereof, to the said George P. Burrill, and therefore no proceedings can be had on the supposed attachment of the said fund. 3. That Cornelius W. Voorhis, the other plaintiff, sued out a writ of attachment, in this court, against the said Thomas W. Letson, returnable to March 1843, and served the same on the Louisville, Cincinnati and Charleston Rail Road Company, after they had made their return to the action of George P. Burrill. And the said Thomas W. Letson sued the said Louisville, Cincinnati and Charleston Rail Road Company in this court, in an action of assumpsit, the writ being returnable to March 1843, for a demand not included in the former action between him and the same defendants, no part of which last mentioned demand is admitted by the said Louisville, Cincinnati and Charleston Rail Road Company to be due; And that neither the debt sued for in the United States' Court, nor in this court, could be attached by the plaintiff Voorhis, so as to support the proceedings in this case. 4. That if the amount admitted by the Louisville, Cincinnati and Charleston Rail Road Company to be due to the said Thomas W. Letson, is effectually attached by the said George P. Burrill, the same must be liable to be paid into court, and to be taken out by the said George P. Bur-rill, in satisfaction of his demand; and as the demand of the said George P. Burrill greatly exceeds the amount admitted to be due by the garnishees, there is nothing left to support the proceedings in the subsequent attachment of Voorhis. An appeal was also taken on behalf of the attaching creditors, to reverse the order making absolute the rule to show cause why the garnishees should not be discharged, on the following grounds: 1. Because the returns of the garnishees shew a claim in their hands, belonging to the absent debtor, which is the proper subject of attachment 2. Because, as attorneys-at-law for the absent debtor, the garnishees have the legal control of the claim and the evidence which supports it, and are the authorized recipients of the monies arising from said claim of the absent debtor, upon which they have recovered judgment. . contended that nothing was lawfully attached. Unless the plaintiff in attachment has laid hold of something upon which this Court can act, the attachment fails. Cited the Attachment Act, and also Com, Dig. to shew the custom of London. There can be no attachment of money in suit, nor of what rests only in damages — -it should be only on a liquidated demand. Cited 9 Petersdorff Ab. 712 ; 4 T. Rep. 312, to show what may not be attached. The debts for which attachment will issue, are those for which indebitatus assumpsit may be sustained. Cited 1 Bailey, 364; also Hamilton, Ex'1 or. of Dart, vs. McKinne, (Columbia, Spring Term, 1827.) The attachment is resisted on two grounds : 1st. That a debt in suit cannot be attached; 2d. That the action brought by defendant against the Rail Road Company, was covenant to recoyer damages, which are not the subject of attachment. In the English cases, it has been decided that a debt in suit in Westminster cannot be attached under the custom of London ; and the reason given is, that it is against the dignity of the superior court to permit subjects depending before them to be affected by the process of inferior tribunals, 2 Bac. Ab. 260 ; Cro, Eliz. 691. It is scarcely necessary to say that such a reason does not apply to this case, where the attachment has issued out of the court of Common Pleas of this State, as well against a debt in suit in that Court, as against a debt in suit in the Circuit Court of the United States. All the English cases, therefore, which turn upon the point of superior'and inferior jurisdiction, have no application to the present case. It is urged, however, that a debt in suit is in custodia legis, and therefore not attachable; and this constitutes the principal ground taken in the case. There is no doubt of the correctness of the position, that a matter in custody of law cannot be attached. The single inquiry is then presented : Is a debt in spit in custodia legis ? In support of the affirmative of this proposition, the following authorities are cited: 1 Dallas, 355; A T. Rep. 312; Grant vs. Hawding, referred to in the case from Term Reports ;-vs. -, Columbia, December Term, 1843; 1 Bailey’s Eq. 364. None of these authorities are in point. It is plain that in all of them the grounds upon which it was decided that the money could not be attached, were these two: 1st. That the money became due by a judicial act; and 2d. That the money was paid into the hands of the officer of the court, acting under authori? ty derived from the court. Such principles of decision have no application to the present case. The attachment here is not of a debt which has become due by a judicial act; nor of money paid to an officer of the .court, acting under authority derived from the court; nor is the attachment laid in the hands of such officer. The plain facts are these; The Rail Road Company ac? knowledged themselves to be indebted to the defendant in the sum of $491 68, under his contract with them. The defend? ant claims the $491 68, and some $30,000 more, under the same contract. The defendant commenced an action of cove? pant to recover the whole amount, and left the State. The plaintiffs sued out an attachment against the defendant, and laid it in the hands of the Company; and in their return to the writ, the Company admit $491 68 to be in their hands, due to the defendant. In what consists the analogy between this case .and those already cited ? The money is not due by a judicial act, nor paid to an officer of the court, nor is such officer made a garnishee. No case, English or American, has been cited to shew that a debt in suit is in custodia legis. We are not without authority to maintain the contrary position. Cited 1 Roll’s Abr. 554; 1 Peter’s Rep. 245; J2 Martin, 688. From the cases it is evident, 1st. That the authorities relied ou decide no more than that money in custodia legis cannot be attached, but do not touch the question, whether a debt in suit is in custodia legis, 2d. That the reason why an attachment will not lie of a debt sued in Westminster, does not apply to courts exercising concurrent jurisdiction. 3d. That a debt in suit in London can be attached. 4th. That in no case, whether occurring in a superior, concurrent, or inferior jurisdiction, in Eng-, land, or America, has an attachment of a debt in suit been held irregular or illegal, on the ground that the debt in suit was in custodia legis. And lastly, that in the only case to be found in the American books, in which attachment issued out of a court having concurrent jurisdiction with the court in which the debt in suit was depending, it was adjudged unanimously, that the reason of the English authorities did not apply to such court, and the debt might lawfully be attached. 2 Dallas, 277. The 2d objection, “ that the action against the Rail Road Company is for damages, which are not the subject of attachment,” is not supported by the facts, or by reason or authority. The defendant instituted two suits against the Rail Road Company : one, assumpsit, in the Common Pleas court — the other, covenant, in the Federal Circuit court. As to the first suit, which is brought to recover money laid out and expended by the defendant for the Company, the objection taken does not lie; nor will it avail, as to the suit in covenant for damages. The rule of law, as settled in all the cases, is this: if a debt exists, though a recovery would be by action sounding in damages, yet such debt may be attached Priv. Lond. 263 ; 1 Roll’s Rep. 105. The question is not on the form of action, but whether a debt or not. 1 Roll’s Ab, 552. Where debt will lie, the party shall not defeat the effect of the attachment by bringing case. Ibid, and 2 Bac. Ab. 259. The true test, then, is, does a debt exist — will an action of debt lie 1 With regard to the $491 68 acknowlenged by the Company to be due to the defendant, it would seem to be beyond dispute, that, as an existing debt, for which an action of debt would lie,' it may be attached. But it is said, excepting the $491 68, the action is brought to recover damages which are uncertain. The answer to this is as brief as it is conclusive : 1st. But one action is covenant — the other is assumpsit for money laid out and expended. 2d. Even as to the action of covenant, it is brought on the contract of the Defendant with the Rail Road Company, to recover, as well the $491 68 admitted, as some $30,000 more, aliedged to be due under that contract. It does not appear that debt would not lie on this contract, although covenant may be most adviseable. If the contract provided for the payment of money for extra work therein mentioned, then, properly speaking, the action is not to, recover uncertain damages. If no such provision is made, a different action would lie. The verdict, in either case, must be based upon an agreement, express or implied, to pay money, at a certain rate, for stipulated work. If the money is due — if the debt exists, though the recovery would be by action sounding in damages, such debt may be attached. Priv. Lon. 263, ubi supra. Suppose the Company had admitted the whole of the $30,000 to be due; still, the remedy would be, by action of covenant on the contract. But could it be pretended that this was not an “ existing debt” ? If, then, covenant be brought, both for the amount admitted, and the additional amount claimed, under the same contract, can the adoption of that form of action operate to change the debt existing to uncertain damages'? But 3dly. If any part is properly attached, these proceedings cannot be set aside ; it is therefore premature to inquire, on a motion to dissolve attachment, whether the whole, or only a part, is subject to attachment — any part being sufficient to support the proceedings. It will be found on examination, that the cases on this subject decide no more than that damages recoverable in actions for slander, trespass, &c. having no reference to contract, or the money value of property or services, cannot be attached. See Serg. Att. 85 and 86; 2 Keb. 316, 320. As to the fact that the objection should have been made by plea. The court needs no plea to inform it that it has no jurisdiction. As to the attachment of partnership effects for a separate debt, cited 1 Gallison, 367; 6 Mass. Rep. 242. The Act speaks of debts, not of possibilities. What is attached is to be paid into court, or to the creditor himself, upon giving bond. When the creditor takes the goods or fund, it is as the property of the absent debtor. The property must be in a condition that it can be paid to the creditor. The court must have complete and efficient control of the thing attached. It is admitted, if the money was paid into the marshal’s hands, it could not be attached. If this be so, the money in suit must first come into his hands, and then the rule conceded applies. Could Mr. Gadsden say that he could not pay into Court, because there was an attachment in this Court? The same inconvenience would, arise, if money in shit bail be attached, as if in custodia legis. Suppose A; B. sued, and he pays the money in court, as he may do. Could it be attached 1 The same rule that prevents the attaching of money in the Sheriff’s hands, would, in the hands of him liable to pay to the sheriff. The case of McBryde vs. Floyd does not apply. In that case the suit Was not commenced;

Relies on Ross v. Clarke · M'Carty v. Emlen

Decided 1844-01-15

¶1 Curia, per

O’Neall, J.

¶2In thesé'cases, before delivering the judgment of the Court, it is best to present plainly the situation of the attachments arising from the returns of the garnishees; In both cases the Rail Road Company are parties, and state the recovery on the covenant in the United States Court, by Letson, of $18,142 23, of which they allege, however, only the sum of $491 25 is due, and that they oWe him nothing else, and have no other property, ifec; of the said Thomas W. Letson than as above mentioned, Messrs. Pettigru and Lesesne were also summoned as garnishees, and in both cases they state the recovery of the judgment in the United States Court against the Rail Road Company, in which they were Letson’s attornies: they deny that they owe him any thing, but assert they are his creditors; In Yoorhis’s Case, which Was subsequent to Burrill’s, they state that they have prosecuted another action against the Rail Road Company in this court, (the court of Common Pleas for Charleston District,) where the same is still pending.

¶3The question is upon these facts: Whether there is any thing well attached 1 To begin first with the case in the court of Common Pleas for Charleston District. It may be conceded for the purposes of this case, that if the suit in it had been on any security for the payment of money, that the security might have been seized by serving the attorney; But when it is Upon a mere claimffor damages, as for Supposed extra Work, as we understand Letson’s pending case to be, it is neither money, nor debt, nor book account; and hence cannot be attached. It is altogether of too uncertain a character. But in the consideration of *389the validity of the attachment as to the recovery in the United States court, the doctrine applicable to both cases will be more fully considered. I therefore proceed to that branch of the case. The Attachment Act, 3 Stat. 617, authorizes the attaching of the monies, goods, chattels, debts, and books of account, of an absent debtor, in the hands, power, or possession of any person. Let us first take the statute, and ascertain from it what was the sense in which the Legislature used the words, monies and debts ; for, if we can ascertain that, then we shall be able at once to say whether the attachment can be supported. The Attachment Act was no doubt founded on the custom of London, and its words may, when there is doubt, be construed by it. It is laid down as settled law in Com. Dig. Tit. Attachment, D, that a debt due upon record by recovery, or otherwise, cannot be attached, nor money levied in execution by the sheriff, upon a fi.fa. So it is said there cannot be an attachment for a debt after a suit commenced for it, in B. R. or C. B., or in other superior courts. Looking to these expositions of the custom of London, as giving the true meaning of the words used in our Act, then there would be no difficulty in saying that there is nothing on which the attachment can rest. But it. is said that the reason of this was because the attachment proceeded out of an inferior court, (the mayor’s or sheriff’s) and that, as in this State, it proceeds from the superior court, the Common Pleas, there can be no impropriety in attaching a debt, or monies, in other superior courts, and especially in the same court. There is great force in this view, but we have in many respects already conformed to the custom of London, as that money collected bn a fi. fa, or a fund in equity, could not be attached. The plaintiff’s view has the countenance of very respectable authority, the court of Pennsylvania, headed by C. J. McKean, in McCarty vs. Emlen, 2 Dall. 277; yet their previous case of Ross vs. Clarke, 1 Dall. 354, in which the same reason was urged to the court, why money in the hands of the Prothonotory should be held liable to attachment, decided that it could not be attached. The two cases are certainly inconsistent, and that diminishes much the force of the authority of the case of McCarty vs. Emlen. The case of McBride vs. *390Floyd, 2 Bail. 209, is supposed to furnish an instance in this State, where a debt in suit was attached. But it will be remarked that in that case the attachment was served on the attorney before suit brought, and that no objection was made to the validity of the seizure on account of the debt being in suit. Still, I have no doubt, as I have already intimated, that a security for the payment of money, a bond, or note in suit, may, under the words of our Act, be attached.

¶4Having looked to the custom of London for the meaning of the words used, monies and debts, so far as they may be qualified by a recovery, money collected under fi.fa, or suit brought, I turn to our Act, and have no hesitation in saying that its wmrds can admit of no doubt, construed by themselves, and that it requires the aid of the custom of London to extend their meaning.

¶5The words, monies, debts, or books of account, standing alone, would perhaps cover all sorts of debts. But on reading a statute, we are to take all its parts together, to arrive at the meaning of the words used. In the 3d section it is provided that “the monies, goods, chattels, debts, and books of account, attached as aforesaid, shall, on filing the declaration as aforesaid, be immediately paid and delivered into the hands of the plaintiff.” Now, what is to be paid'? Clearly, the money attached. What is to be delivered % The goods, chattels, debts, and books of account, is the answer. To be delivered, the debts must be something more than a mere right of action. That would be incapable of delivery. This construction is strengthened by the 4th section, in which it is provided that “ the plaintiff in the attachment into whose hands any bonds, notes, or books of account shall be delivered, as aforesaid, shall have full power and authority to sue for, recover, and receive the same,” &c. This makes plain in what sense the term debts was used; it clearly, if we had nothing but the Act to guide us, would mean debts due by bonds, notes, and book account: and to make them liable, it is plain they must themselves be attached, so that they can be delivered to the plaintiff. The mere service of the debtor would not be an attachment of the security, and hence not of the debt. But the custom of London does authorize the sum*391moning of any debtor of the absent debtor, “ and if he does not deny himself to be indebted,” the debt shall be attached in his hands.. And in this State, the practice of attaching whenever a sum certain is due by the garnishee to the absent debtor, not evidenced by bond or note, by summoning the debtor, is too inveterate to be now shaken, and as it has the sanction of the custom of London, it ought not to be interfered with. This, however, is giving a very enlarged sense to the words of our Act, and certainly does not authorize us by construction to say that they are to mean more than the custom of London. In any view, the recovery in the United States court, as well as the pending suit in the circuit court of this State, are not the subject of attachment. The former would, if the attachment were sustained, lead to a conflict of jurisdiction, which is always to be avoided. But the rule in our court, as stated in Young vs. Young, 2 Hill’s Rep. 426, shews that whenever the fund is in another court, an attachment will not lie. So our late case, decided last court, in Columbia, ruled that money collected by the sheriff was to be regarded as in custody of the law, and not the subject of attachment.. That would be enough, when properly followed out, to show that the attachment here could not affect the recovery in the United States court, nor the pending suit in our own court; for a recovery ascertains the plaintiff’s cause of action, and authorizes him to collect whatever sum may be ascertained, by Fieri Facias. In the one case that is to have effect by the agency of the marshal, and in the other by the sheriff. If, when the money be collected under fi. fa. it is not the subject of attachment, it would seem to be tolerably plain that the reversal of that principle could hardly be obtained by seizing the case, (if such a thing was possible,) before or after judgment. The only case where an attachment might have effect after suit, is that to which I have alluded, where the evidence of the debts is bonds, notes, or books of account, might be seized, and their seizure would operate as a transfer or assignment to the plaintiff, authorizing him to collect them by legal process in the name of the absent debtor, and when collected, to receive the proceeds.

¶6 *392But it was argued on the part of the plaintiff, that the defendant could not make the objection which I have been considering, inasmuch as he was not entitled to appearand plead without putting in special bail. To dissolve the attachment, and turn the proceeding in rem into a personal action, and give the defendant a right to appear and plead, he must put in special bail. But that is when something is attached, and by his money, goods, chattels, debts, books of account, lands, leasehold estates, and chattels real, the owner is a party. But when nothing is legally attached, it is as if no service binding the party was made. It is like serving defendant by copy left at a place not his residence, or out of the sheriff’s district, or serving a militia man on parade or attending muster, with a copy writ. In all these cases the service is void, and will be set aside on motion. So here the service is void; it supposed that the defendant’s claims against the Bail Road Company were properly seized, when in law neither the one nor the other were liable to levy. The motion on the part of the defendant to reverse the judgment below, is granted, and the attachments are discharged. The plaintiff’s motion is dismissed.

RvAits, Butter, Wardeaw and Frost, JJ. concurred.