WASHINGTON, Circuit Justice.
This is an action of debt, to recover the amount of a promissory note. The defendants plead, that since the last continuance of this action, a writ of foreign attachment had issued out of this court, against the plaintiff, a subject of France, at the suit of Frederick Montmol-lin, a citizen of Pennsylvania, assignee of Joseph Coulon, also a citizen of the same state; to answer on a plea of trespass on the case; which writ, was laid and served, on all the goods and chattels, monies and effects of the plaintiff, in the hands and possession of the defendants; with an averment, that the said John J. Graighle, in the said writ of attachment mentioned, and the plaintiff in this cause, are one and the same, and not other or different persons; and, that the said writ of attachment remains in full force, and undetermined. The plea concludes with an averment, and prays judgment of the writ issued in this case, and that the same may be quashed. To this plea there is a general demurrer, and the only question that can arise, is upon the validity of the plea.
The question argued at the bar was, whether a creditor can lay a foreign attachment in his own hands. This question however does not arise on these pieadings, since it does ■ not appear from them, that the Frederick Montmollin, who was plaintiff in the action, and the defendant F. Montmollin are the same persons. In order to have brought this question forward, the plaintiff should have replied to that fact. Nevertheless as it is high time, it being upwards of a century since the foreign attachment law past, that this question should be put to rest; the court deems it proper to express an opinion upon it, at this time. The ordinary proceedings in a foreign attachment, commence with the writ of attachment; which is to be served on the goods and chattels of the debtor, in whosever hands or possession the same may be found; or upon any person, who may be indebted to the defendant in the attachment. Upon the return of. the writ, the garnishee is to enter an appearance, which is generally by attorney, unless, under the provisions of the act of assembly of Pennsylvania, a clause of capias is inserted in the writ; in which case he must give bail for his appearance. Judgment by default is then-entered against the defendant, as a matter of course, at the third court after the writ issued; unless he puts in bail. After this, a scire facias issues against the garnishee, to show cause, why the plaintiff should not have execution against him, of the defendant’s property attached in his hands. To this writ the garnishee may plead the general issue, nulla bona; or any special matter, tending to show, that the effects in his hand, or the debt due by him to the defendant, ought not to be condemned. If the issue is found against the garnishee, or if he should not appear and plead; judgment is rendered against him, upon which an execution will issue. In aid of this process, the plaintiff may compel the garnishee to answer, on oath, to interrogatories, to be propounded to him; calculated to draw from him a discovery of all the property of the defendant, which he has in his hands, and of the debts which he may owe him. The absurdity of process issuing against the plaintiff in the attachment, at his own suit, his answering his own interrogatories, and being subject to execution, for a debt due to himself; are strongly relied upon to prove, that an attachment cannot be laid, in the hands of the plaintiff in that suit.
There is certainly at first view, great weight in this argument; and unless the • difficulties upon which it is founded, can be removed, by a fair and reasonable construction of the acts of assembly, it must prevail. It may however be observed, that there are strong reasons for believing, that the exclusion of a creditor holding in his hands the property of his debtor, from the benefit of the attachment law, was not in the contemplation of the legislature. The law is remedial, and the words of it general, extending the remedy to all creditors, without distinction; and it would seem strange, that the only person who cannot obtain justice, against a nonresident, should be one, who has in his hand, the funds out of which that satisfaction may [949]*949be bad. There would seem to be a manifest injustice, that the plank upon which he might save himself, and upon which he may probably have relied, should be taken from him, and given to other creditors. If, however, such be the necessary construction of the law, the court must decide in conformity with it, however they may regret it Generally speaking, there are three parties to a writ of foreign attachment. The plaintiff, or creditor, the defendant, or debtor; and the garnishee, who, in relation to the controversy between the plaintiff and defendant, stands very much in the situation of a stake holder. Between either of those parties, and himself, there is nothing adverse, unless he makes it so by his own conduct It is perfectly immaterial to him, which of the parties succeeds. He is only to act bona fide, by discovering what property of the defendant is in his hands; and as he cannot himself, decide between the contending parties, he cannot deliver over the property to either, without the judgment of the court. The proceedings therefore against him, are merely auxiliary to the principal suit, and are intended to secure the end for which it is instituted. But if, from the nature of the case, the end can be obtained, without the use of all the means provided by the law; there would seem to be no impropriety, in employing such of them only, as would be necessary to arrive at the proposed object. Because the effect of the suit might be defeated, unless the plaintiff were armed with coercive measures against the garnishee; he certainly cannot be required to use those measures, whether they are necessary or not The garnishee, therefore, being himself plaintiff in the writ of attachment, there can be no necessity for a summons, scire facias, interrogatories, or any other coercive process against him. If the officer returns, that he has attached the defendant by certain property, which is specified; no reason is perceived, why the plaintiff may not proceed to obtain judgment, against the defendant and after that, an execution, to be levied on the property attached; upon the plaintiff giving security, according to the requisitions of the law, to restore the same, if the defendant should, within the time prescribed, disprove or avoid the debt. If the plaintiff, instead of having property in his own hands, belonging to the defendant, is indebted to him, no necessity is perceived, for any further proceedings; since the money is already in his own hands, and the judgment against the defendant has ascertained the amount of his debt; unless, perhaps, it may be proper to enter a judgment, that the plaintiff have execution of the sum attached, and retain the same in his hands, as in the precedent, which will presently be referred to.
The mode of proceeding above suggested, where the plaintiff, in the attachment, has goods or effects in his hands, belonging to the defendant; seems to be fully warranted by the practice under the custom of London, where there is no garnishee, the effects not being in the actual possession of any person. In such a case, the plaintiff obtains a judgment against the defendant, by default, and an execution against the effects, upon which the attachment was laid. If the attachment be laid upon the lands of the defendant, which it is admitted may be done In this state, no other mode of proceeding can be pursued, there being in such case no garnishee.
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WASHINGTON, Circuit Justice.
This is an action of debt, to recover the amount of a promissory note. The defendants plead, that since the last continuance of this action, a writ of foreign attachment had issued out of this court, against the plaintiff, a subject of France, at the suit of Frederick Montmol-lin, a citizen of Pennsylvania, assignee of Joseph Coulon, also a citizen of the same state; to answer on a plea of trespass on the case; which writ, was laid and served, on all the goods and chattels, monies and effects of the plaintiff, in the hands and possession of the defendants; with an averment, that the said John J. Graighle, in the said writ of attachment mentioned, and the plaintiff in this cause, are one and the same, and not other or different persons; and, that the said writ of attachment remains in full force, and undetermined. The plea concludes with an averment, and prays judgment of the writ issued in this case, and that the same may be quashed. To this plea there is a general demurrer, and the only question that can arise, is upon the validity of the plea.
The question argued at the bar was, whether a creditor can lay a foreign attachment in his own hands. This question however does not arise on these pieadings, since it does ■ not appear from them, that the Frederick Montmollin, who was plaintiff in the action, and the defendant F. Montmollin are the same persons. In order to have brought this question forward, the plaintiff should have replied to that fact. Nevertheless as it is high time, it being upwards of a century since the foreign attachment law past, that this question should be put to rest; the court deems it proper to express an opinion upon it, at this time. The ordinary proceedings in a foreign attachment, commence with the writ of attachment; which is to be served on the goods and chattels of the debtor, in whosever hands or possession the same may be found; or upon any person, who may be indebted to the defendant in the attachment. Upon the return of. the writ, the garnishee is to enter an appearance, which is generally by attorney, unless, under the provisions of the act of assembly of Pennsylvania, a clause of capias is inserted in the writ; in which case he must give bail for his appearance. Judgment by default is then-entered against the defendant, as a matter of course, at the third court after the writ issued; unless he puts in bail. After this, a scire facias issues against the garnishee, to show cause, why the plaintiff should not have execution against him, of the defendant’s property attached in his hands. To this writ the garnishee may plead the general issue, nulla bona; or any special matter, tending to show, that the effects in his hand, or the debt due by him to the defendant, ought not to be condemned. If the issue is found against the garnishee, or if he should not appear and plead; judgment is rendered against him, upon which an execution will issue. In aid of this process, the plaintiff may compel the garnishee to answer, on oath, to interrogatories, to be propounded to him; calculated to draw from him a discovery of all the property of the defendant, which he has in his hands, and of the debts which he may owe him. The absurdity of process issuing against the plaintiff in the attachment, at his own suit, his answering his own interrogatories, and being subject to execution, for a debt due to himself; are strongly relied upon to prove, that an attachment cannot be laid, in the hands of the plaintiff in that suit.
There is certainly at first view, great weight in this argument; and unless the • difficulties upon which it is founded, can be removed, by a fair and reasonable construction of the acts of assembly, it must prevail. It may however be observed, that there are strong reasons for believing, that the exclusion of a creditor holding in his hands the property of his debtor, from the benefit of the attachment law, was not in the contemplation of the legislature. The law is remedial, and the words of it general, extending the remedy to all creditors, without distinction; and it would seem strange, that the only person who cannot obtain justice, against a nonresident, should be one, who has in his hand, the funds out of which that satisfaction may [949]*949be bad. There would seem to be a manifest injustice, that the plank upon which he might save himself, and upon which he may probably have relied, should be taken from him, and given to other creditors. If, however, such be the necessary construction of the law, the court must decide in conformity with it, however they may regret it Generally speaking, there are three parties to a writ of foreign attachment. The plaintiff, or creditor, the defendant, or debtor; and the garnishee, who, in relation to the controversy between the plaintiff and defendant, stands very much in the situation of a stake holder. Between either of those parties, and himself, there is nothing adverse, unless he makes it so by his own conduct It is perfectly immaterial to him, which of the parties succeeds. He is only to act bona fide, by discovering what property of the defendant is in his hands; and as he cannot himself, decide between the contending parties, he cannot deliver over the property to either, without the judgment of the court. The proceedings therefore against him, are merely auxiliary to the principal suit, and are intended to secure the end for which it is instituted. But if, from the nature of the case, the end can be obtained, without the use of all the means provided by the law; there would seem to be no impropriety, in employing such of them only, as would be necessary to arrive at the proposed object. Because the effect of the suit might be defeated, unless the plaintiff were armed with coercive measures against the garnishee; he certainly cannot be required to use those measures, whether they are necessary or not The garnishee, therefore, being himself plaintiff in the writ of attachment, there can be no necessity for a summons, scire facias, interrogatories, or any other coercive process against him. If the officer returns, that he has attached the defendant by certain property, which is specified; no reason is perceived, why the plaintiff may not proceed to obtain judgment, against the defendant and after that, an execution, to be levied on the property attached; upon the plaintiff giving security, according to the requisitions of the law, to restore the same, if the defendant should, within the time prescribed, disprove or avoid the debt. If the plaintiff, instead of having property in his own hands, belonging to the defendant, is indebted to him, no necessity is perceived, for any further proceedings; since the money is already in his own hands, and the judgment against the defendant has ascertained the amount of his debt; unless, perhaps, it may be proper to enter a judgment, that the plaintiff have execution of the sum attached, and retain the same in his hands, as in the precedent, which will presently be referred to.
The mode of proceeding above suggested, where the plaintiff, in the attachment, has goods or effects in his hands, belonging to the defendant; seems to be fully warranted by the practice under the custom of London, where there is no garnishee, the effects not being in the actual possession of any person. In such a case, the plaintiff obtains a judgment against the defendant, by default, and an execution against the effects, upon which the attachment was laid. If the attachment be laid upon the lands of the defendant, which it is admitted may be done In this state, no other mode of proceeding can be pursued, there being in such case no garnishee. That a creditor may lay a foreign attachment, in his own hands, according to the custom of London, is clearly established, by the cases which will hereafter be referred to; and yet, the proceedings under the custom, are so nearly analogous to those provided by the laws of this state, that the objections stated at the bar, must equally exist there, as well as here. To the laudable industry of one of the plaintiff’s counsel, Mr. Lewis, the court is indebted, for the gratification it has received, in inspecting the pleadings in a case, where a foreign attachment was laid in the hands of the plaintiff in the attachment, and the judgment pleaded in bar, to an action brought by the defendant in the attachment against the plaintiff.2 It is to be found in Bast. Ent p. 156, and is referred to by [950]*950Sergeant Danvers (volume 2, p. 313) as the pleadings in the case of Paramore v. Pain, Cro. Eliz. 598. See, also, Colie, Ent. 139b.
The plea in Paramore v. Pain, was, that the plaintiff was indebted to the defendant, in a sum equal to that for which this suit was brought; that he sued a plaint in London, and that this debt was attached in his hands, and so he pleads the said foreign attachment, and the judgment thereon, in bar. It appears by the pleadings above referred to, that the judgment so pleaded, was “that the plaintiff in the attachment should have execution of the sum so attached in his hands, as the same was attached, and that he should absolutely retain the same in payment and satisfaction of his debt, upon his giving security, &c.” Whether such a judgment be necessary in this state, may be doubted, since there is.no judgment rendered against the defendant in the attachment, ac- ■ cording to the custom of London, and in this state there is. As to this, however, 1 give no opinion at present
In the case of Coke v. Brainforth, Cro. Eliz. 830, the practice of attaching in the hands of the plaintiff, was again recognized; and the authority of these two cases, received the countenance of the court of king’s bench, in the cases of Morris v. Ludlam, 2 H. Bl. 362. See, also, 3 East, 367; Law of Corporations, 226, 243; 4 Rolle, Abr. 554; 1 Com. Dig. 442; 7 Vin. Abr. 236 ; 2 Lutw. 1052, 4.
It is not perceived, that any injustice is done to the defendant in the attachment, or that the laws of the state of Pennsylvania or any general principle of law, are violated by this mode of proceeding. It is of no con[951]*951sequence to the defendant whether a trial be had or not, f or the purpose of ascertaining what effects of his, the plaintiff has in his hands; or, what is the amount of debt he owes, or even what effects are in the hands of the garnishee, where there is one. For if in the latter case, the garnishee cannot controvert the debt claimed by the plaintiff, by confessing himself to be a debtor to the defendant, or to have effects of his, in his hands, (which there is no doubt he may do, without danger to himself,) judgment goes against him, as a matter of course; although, without such judgment, he cannot deliver over the property or pay the debt to the plaintiff. In the former case, the plaintiff, who is quasi a garnishee, confesses effects in his hands, which he retains, in consequence of the judgment to satisfy his own debt; but in this case, the defendant in the attachment is allowed, in an action against the plaintiff, to traverse the plea, and thus to contest the debt recovered in the attachment. In fact, the only protection of the defendant in either case, consists in the security to restore, which the plaintiff must give. Nor can it be said, that the law of this state is violated, because such of its provisions as are inapplicable to the case, are not pursued.
Upon the whole, this court feels itself authorized to sustain a foreign attachment, which is laid in the hands of the plaintiff; and I am satisfied, that in doing so, we noc only fulfil the spirit and intention of the law, but sanction a practice both just and convenient. In this case, the demurrer must be overruled, and the plaintiff will be allowed to put in a replication, if he chooses so to do.