Brown v. Somerville

8 Md. 444

• Court: Court of Appeals of Maryland
• Decided: December 15, 1855
• Status: Published

Opinion

Tuck, J.,

delivered the opinion of this court.

Whatever principles were settled on the former appeal must govern this court on the present, unless the record shows a materially different case. This is the established doctrine, as shown by the authorities on the appellee’s brief.

After a careful examination we can discover no such difference) except that it now appears that the note was passed by Charles Tiernan before his application under the insolvent laws, whereas the decision of one of the points on the former trial was placed on the ground that such transfer could not be made after his application; and it is now proved that the judgment of condemnation against the defendant has never been fully paid, but that, since the former trial, she has become the purchaser thereof for f2300, the debt being largely more than that amount, and the sum now claimed by the appellant.

It is supposed that this record shows, as an additional fact not proved in the other case, that the judgment of condemnation was entered by agreement of the parties. But we think it manifest that this fact was known to the court on the first appeal. The same copy of the docket entries is set out in both records, and the parol proof now offered, that the agreement was made, does not make a new matter of that which was before established. The point is, was the same fact proved, not whether the evidence of the fact is the same or different. The court unquestionably dealt with the judgment, as we must, as a valid proceeding.

There being no question raised as to the validity of the transfer of the note by Charles Tiermin, in view of the insolvent Jaws, the additional evidence in that behalf need not be noticed. The only subjects, therefore, for our consideration are, whether it was necessary for Mrs. Somerville to have shown that the judgment in attachment had been followed by execution executed, or satisfaction, as a complete defence to this action; and whether the part payment of the judgment, by the purchase thereof, can enure to her benefit, she having, by that purchase, gotten rid of a larger portion of her judgment debt to the bank than will pay the amount claimed in this suit.

The first of these propositions was not decided on the former appeal. It does not appear by the statements and points filed by the counsel, or by the reporter’s notes of the argument, to have been adverted to, or in any manner brought to the notice of the court. The reported case shows very clearly that, with the exception of a point arising under the insolvent laws, the only question discussed in the opinions filed was, whether the note in suit could be attached, which did not necessarily involve the point now made on this appeal. We consider ourselves, therefore, at liberty to treat it as a case of first impression in this State, depending upon the attachment laws, and the decisions in England and in this country.

The words of the act of 1715, ch. 40, sec. 7, admit of no controversy as we think. They provide that the “condemnation and execution of such goods, chattels and credits, of the said garnishee, had and made, shall be sufficient and plead-able in bar by the garnishee in any action against him, by the defendant, for the same.” It is not pretended that the judgment of condemnation of lands or goods, without execution, would bar the defendant’s suit against the garnishee; but it is said, that in a case of attachment against credits in the hands of the garnishee, the judgment operates as a general judgment against him, binds his property like any judgment in personam, and may be made by execution levied on any of his property. It must be conceded that this view applies to attachments such as the one relied upon here, and has no force whatever where property is taken under the writ; and that, therefore, the two kinds of process might well have been placed on a different footing, by making the condemnation, where credits only are attached, a bar to the other suit. But if the legislature has employed language embracing goods, chattels and credits, in the same sentence, dealing with each by a proceeding in rem, from the writ of attachment to the judgment of condemnation, which of itself implies that the thing attached, whether chattel or credit, is the subject of the judgment, and protects the garnishee only when the attachment case has proceeded to judgment and execution, had and made, we cannot give the language a construction different from its plain meaning. The words of an act may be disregarded when that is necessary to arrive at the intention of the law makers, but not where the act admits of only one interpretation. Our attachment system was derived from that of England, and the words nowr under consideration, as they stand in the act, are in conformity with the decisions there, before and since its passage. We must suppose that the act was framed with reference to that system, and when the operation and effect of this process are considered, it will appear, we think, to be in conformity with the distinction between judgments in rem and in personam. If the judgment operated as an extinguishment of the garnishee’s indebtment to the defendant in the attachment suit, it might be relied upon in bar as a former recovery. But this is not so. The credit is attached as something belonging to the defendant, not as a debt due by the garnishee to the plaintiff, and the defendant has an interest in that credit being applied to the payment in whole, or pro tanto, of his debt to the plaintiff. No distinction appears-to have been recognised between credits and specific property. All alike are made the subject of condemnation, and are dealt with in the same manner. The condemnation of the thing attached to the purposes-of that suit, and its application to the payment of the defendant’s debt to the plaintiff, is considered as made when an execution has Issued and been executed, according to the law of England,- or by either payment or execution executed, according to the decisions in the States in which the law of attachment has been introduced, execution being considered only o.s a mode of enforcing payment. At any time before such application has been made the defendant may sue his debtor, the garnishee, on the attached chose, and recover, unless he pleads the pending attachment in abatement. If it has progressed to judgment and payment, or execution executed, this constitutes a defence in bar.

It will be seen that this view of the law does no injustice to any of the parties, if they adopt the proper mode of proceeding. The plaintiff in the attachment cannot complain if, having neglected to prosecute the remedy of his choice, according to the exigency of that process, lie ultimately loses its benefit^ and the garnishee incurs no risk of a payment to both his own creditor and the plaintiff in the attachment, because, as we have seen, he may, in one condition of the attachment case, make it the ground of abating the defendant’s suit against him, and in the other aspect may defeat it altogether. For the law of England on this subject, see 1 Saund. Rep., 67, Turbill's case. Comyn’s Digest, Attach. H. Locke on Attach., (79 Law Lib.) Magrath vs. Hardy, 4 Bing. N. C., 782. Wetter vs. Rucker, 1 Brod. & Bing., 491.

In Maryland we have no reported adjudications on this part of the law; nor are we aware that any cases have occurred at nisi prius from which we can learn the construction of the act of Assembly by our courts. In Ilinkley on Attachment, it is said, that it is not the custom to take execution merely for the purpose of arming the garnishee with a defence; but he asks, {<if the garnishee pays the judgment without execution, may he not plead the judgment and satisfaction, with the like benefit, as he might the judgment and execution ?” We agree with the author that u it is reasonable that be should, inasmuch as execution is only a means of obtaining satisfaction.” Those views are in accordance with the New York and Pennsylvania cases, where the point has been adjudicated. Embree vs. Hanna, 5 Johns., 101. Irvine vs. Lumbermens Bank, 2 Watts & Sergt., 190. Ib., 210. In the latter of these cases, (2 Wafts of Sergt., 214,) where a judgment of condemnation had been entered, but no satisfaction or execution, the court said: “To entitle a garnishee to a plea in bar, it must appear that he has been compelled to pay the money attached in his hands, or, what is the same thing, that an execution has been executed by seizure and levy on his property.” And in 2 Watts & Sergt., 208, the law is very clearly stated, as follows: “If after a foreign attachment has been issued, and been executed in the hands of the garnishee, the original debtor sues the garnishee for the debt, he may plead the attachment in abatement. But if the plaintiff in the attachment has obtained judgment against the garnishee, and received the money, or execution has been executed, and the original creditor shall afterwards sue the garnishee for the debt, he may plead the condemnation in the foreign attachment, and this will be an effectual bar for the amount. If the judgment in the attachment is equal to, or exceeds the amount demanded from the garnishee on the original debt, it is a flat bar; if for less, it is a bar pro tanto only. And the distinction between pleas in abatement and in bar is not technical, but necessary to prevent injustice. When pleaded in abatement, after the disability is removed by disproving the debt, as may be the case, the plaintiff may renew his suit; but if pleadable in bar this cannot be, and the plaintiff may be exposed to have the claim of the attaching creditors defalked, although it may be afterwards disproved, and the garnishee may be allowed for a debt which he may fail to pay. The plaintiff may be defalked and afterwards compelled to pay the attaching creditors the amount of their debts; for an attachment without satisfaction would not, of itself, prevent them from resorting to their original debtor.” It is scarcely necessary to observe that the same principles apply to cases of attachment on judgment, authorised by the act of 1715, ch. 40, as to foreign attachments. This doctiine has been sanctioned by the Supreme Court, in the case of Wallace vs. McConnell, 13 Peters, 136, where the maker of a note, in an action by the payee, pleaded that after the commencement of the suit on the note, the debt liad been attached by a creditor of the payee, and a judgment of condemnation entered, with a stay of execution, and the court ruled, on demurrer to the plea, that it was not a defence, because the attachment case was commenced after the suit was brought on the note; that if the attachment had been conducted to a conclusion, and the money recovered of the defendant, before the commencement of the suit, there could be no doubt that it might have been set upas Ti payment upon tbe note in question; and if the attachment was pending when suit was instituted on the note, it might have been pleaded in abatement, as necessary to the protection of the garnishee, the defendant in the suit on the note.

We are not aware of any case in which the judgment of condemnation has been held sufficient, of itself, to bar the action against the garnishee, except Hull vs. Blake, 13 Mass., 153. But (here the judgment of condemnation in the cdurt of Georgia, relied on by the defendant, stated that the proceedings would, according to the law of that Slate, discharge the garnishee when sued by his original creditor.

In the case before us it appears that the debt was not paid, nor had an execution been issued and levied before this action was commenced. As we understand the law, and not one case to the contrary has been shown, the attachment cause was a pending proceeding and might have been pleaded in abatement, but could not be relied on in bar of the action, which brings us 1o consider the effect of the purchase, by the defendant, of the judgment against herself in 184?', after the suit was commenced.

If the defendant relists on this fact as a payment it cannot have the effect of barring the action, because she has not paid the whole debt, though, as be!ween the bank and herself, ¡he judgment is closed. The owner of the chose, however, has an interest in having tbe whole debt paid, because “an attachment without satisfaction would not, of itself, prevent the plaintiff from resorting to his original deb ¡or.” 2 Watts & Sergt., 209. And for all the purposes of this case we must consider (he present appellant as occupying- the situation of Tiemnn, whose debt was attached in Mrs. Somerville’s hands, because she can make no defence on this record that she coulc! not have set up against Tiernan. But then it is said, that the judgment is satisfied by the purchase. As between the parties to the purchase it is. But, as to the appellant or Tiernan, does the defendant occupy any better situation than if any olher person had become the purchaser of the judgment and taken an assignment ? We suppose not. It would enable garnishees to defeat the just rights of their creditors, holders of the credit attached, if by any arrangement of this kind the law could be turned from its course. According to the doctrines of the authorities referred to, any other purchaser of that judgment might have compelled her to pay the whole amount, or have proceeded against the Tiernans for the deficiency or balance due, after exhausting his remedy on the judgment of condemnation. It would be material in that state of case, to the Tiernans, that the claim of the bank, or its assignee, against them should be reduced by as much as could be recovered from Mrs. Somerville, and no arrangement by purchase or part payment, without their consent, could defeat that right; and we must bear in mind, that as Mrs. Somerville, by interposing the proceedings on the attachment, has subjected Brown to the predicament of the Tiernans, as if they were the now plaintiffs suing on the note, she cannot deny to him the benefit of any objection which they themselves could urge against her defence if they occupied his place as plaintiff against her.

The argument that this view of the question deprives the garnishee of the right to compromise with his creditor, the plaintiff in the attachment, which other debtors possess, proceeds, as we think, incorrectly, on the supposition that these judgments, before execution levied, have all the incidents of judgments in personam. If there be any hardship it is the fault of the statute by which, as was said in Wetter vs. Rucker, 5 Eng. C. L. Rep., 165, "we are penned in,” But when considered with reference to all its bearings it is not unreasonable that the law should be so. This attachment process seeks to dispose of a man’s property without his consent, and in many cases without his knowledge, to the payment of his debts. It has always been strictly construed and required to be pursued according to the statute. The garnishee is expected to pay ail he owes Iris own creditor as far as may be ascerfained by the judgment, of condemnation. .He is dealing with, the property or funds of another whom he owes, from which lie has no right to take any thing for his own or the plain tiff’s benefit, to tire prejudice of the defendant, in the attachment. If payment be made bona fide, or if an execution, be issued and levied on the garnishee’s property, it repels all idea or presumption of collusion between the plaintiff.and the garnishee, and the whole effect of the recovery against the garnishee enures to tire benefit of his original creditor by having it applied to that creditor’s own debt to the plaintiff. If tills result be accomplished he cannot complain, but he has ground to object to any arrangement by which he may obtain a credit for less than the whole amount of the chose which, his creditor has condemned to his use.

According to these views of the case, we are of opinion that the court properly refused the first and second prayers offered by the plaintiff; but erred in rejecting his third prayer, and also in granting the defendant’s prayer.

Judgment reversed and procedendo ordet'ed.