SIMONDS V.
PEARCE;
137
SmONDS
and others v. PEARCE.
(Circuit Oourt. lJ. South Oarolina. April 10, 1887.) 1. ATTACBMENT-NON-RlllSIDENOE-PROPERTY WITHIN JURISDICTION.
Where, on the trial of the claim of a non-resident intervening claimant of chattels, attached under the law of South Carolina as the property of a nonresident debtor, the jury have. found for the intervllnor, the verdict is conclusive that such debtor has no title in the goods attached; and, in the absence of proOf of other property within the jurisdiction of the court, the attachment suit should be dismissed. CREDIT.
2.
8.
A .contract for the digging ql' an well which, in express terms. provides that the contractor shall be entitled to be paid for work done thereunder "onlyon the completion ofthewholework," is an entire contract;. and it is not competllnt for the ot,her contracting pax:ty, in a suit by him to recover for the non-performance of the contract, to allow a credit of $500 for work done, for "the 'puryose of sustaining' an attacliment on 'the grounds of non-residence. SAME-WHAT SUBJECT
teillsolllortgaged cannot be attached fOf a debt of the A gagor'hail. therefore. no property in such chattels 'sufficient, 'in CRse of his non-residence; to support an' on that ground. .
To-,-EQUITY IN CHATTEL MORTGAGE. In South Carolina a mOl'tgagee.of chattels is the legal owner" and the
'
Mqtionto DismiBB for want of jurisdiction. Brawley'&- BarnweU j · for plaintiffs. Mitchell' k Smith and Bryan &- Bryan, for defendant. Before BOND and SIMONTON, JJ. By THE COURT. An attachment was is!\ued out of the state court against certain chattels, as the property of Charles D. Pearce. The ground olthe attachment was that Pearce was a non-reAident, and absent from the state. Thereupon Joseph McGee, pursuing the provisions of the Code of Procedure, intervenedj claiming that the chattels attached were his property. An issue was ordered by the circuit judge to try the issue made upon the denial of this claim. The cause at this stage was removed into this court, McGee being a citizen of New York. Upon the trial of the issue in this court the jury found that the in the chattels was in McGee. The case being now up for trial, the defendant, who has entered a limited appearance for the purpose, moves to dismiss the case for want of jurisdiction. The ground is that he bad no property in the goods attached, and that he had no other property within the jurisdiction of this court. The jury have found that the goods attached are the propHty of McGee. This seems to end that question. But it is maintained that Pearce has right to an account against McGee, because the evidence discloses the fact that he has title in them as mortgagee under a. mortgage executed by Pearce. In South Carolina a Iuortgagee of the chattel is the legal owner. The chattel so mortgaged cannot be levied on or attached for a debt of the mortgagor. Levi v. Legg, 23 S. C. 282. The same evidence offered in this case was used on the trial of the issue made by McGee. It discloses the fact, which is that
138
FEDERAL REPORTER.
the chattels are now worth $1,500, and that the mortgage debt exceeds $2,000. It must be noted that the.chattels are attached; that McGee is not a garnishee; and that no claim of any kind against him by plaintiffs appears on the record. He is absent, and a. resident of New York. A claim against him by Pearce, also a non-resident, whether for an account or an:, thing else,is not properly within this jurisdiction. The plaintiffs, since this term began, admitted in writing on the record that Pearce is entitled to a of $500, which they agree to allow to him upon the damages recoverable by them in this suit. They maintain that this credit, which the marshal says he has attached, will save the jurisdiction. ,The action is for non-performarlCe of a contract to dig an artesian well. 850,0 is a Bum the plaintiffs are willing to allow for work done in part performance of the contract.' Pearce has niade no claim for such an allowa.nce. He could not show himself entitled to it·. The contract for non-performance of vyhich this suit was brought is in evidence in this case. It is an entire contract. In express terms it provides that Pearce shall be entitled to be paid for work done on thE!' completion of the whole work." The gif;lt of this action is that the work has not been completed.. The admission of the plaintiffs is at variance with their contract, and the case made. It cannot be made and used by tbem simply for the purpose of creating jurisdiction. No one can be made a party to a cause in invitum., unless he be found within,br hll.sproperty'whichcan be reached within, thejurisdiction of the court in which the cause is brought In this case, the chattels attached are ,not the property of the defendant. The other mattera styled matters of account are not properly in this jurisdiction. The attachment will. not lie. Plaintiffs may discontinue, or take 8 nonsuit, if they prefer.
LE}JMAN 'l1. MCQUOWN
and others.
(Circuit OO'Urt, D. Oolorado. May 12.1887.)
1.
t.
Personal property afa debtor was sold at sheriff's sale. and bought by the ,,' debtor's wife for less its real value. A creditor thereupon obtained the ap,Pointment of a receiver t,o take charge of the propert;r so hought, and an InJunction to restrain interference; that the purchase was not an: honest one. The bona the transaction waS afterwards established, and,th!l;receiver settled his accounts. and was discharged. and turned over to the-purchaser the residue of the property remaining in his hands; a portion of th'e 'Same haVing been sold by'him. The said purchaser then claimed dam" ageg upon the inj unction bond. against said creditor, by reason of the wrong· ful interru.ption of her possession of the property. Held, that she was entitled to recOVer. " SAMEL-MISMANAGEMENT OJ' RECEIVER-Dl8cHAlIGE.
DAXAGEB--"'INJUNCTION BOND-WRONGFUL INTERRUPTION OF POBSESSION.
After suchredeiver hall settled his accounts, and been discharged, without ..objection, such,purchas,er cannot recover, as an item of.such damages. any loss reason qf such receiver's mismanagement. for which. if esi iabbshed, the receiver might have been held responsible before his discharge.
