Harden v. Moores

7 H. & J. 4

Opinion

Buchanan, Ch. J.

delivered the opinion of the court. This is the case of an attachment, issued out of Harford county court, on a judgment obtained against George G. Preshury, in Baltimore county court, which, after interrogatories filed and answered by the garnishee, was quashed by the court, on motion.

The question to which we have directed our attention is, whether an attachment will lie in any and what case, from one county court, on a judgment rendered in another? And that depends on the construction of several acts of assembly, which will be very briefly considered. Under the aet of 1715, ch. 40, s. 7, “the plaintiff in a judgment may, instead of any other execution, take out an attachment against the goods, chattels and credits, of the defendant in the judgment.” But that act only authorises the suing out attachments on judgments, from the courts in which the judgments are rendered, and has no application to this case.

By the act of 1715, ch. 41, s. 8, if a defendant in a judgment shall fly, remove, or absent himself out of the county in which the judgment is rendered, the plaintiff may take a transcript of the record of the judgment, under seal, and lay it before the court of the county in which the defendant may happen to be, to lie entered upon the records of such county, upon which, that court is authorised to award execution by capias ad satisfaciendum, fieri facias or attachment.

That act relates only to the case of a defendant who shall fly, remove, or absent himself from the county in which a judgment is rendered against him; and though, by that act, an attachment, by way of execution, will lie from one county court, on a judgment rendered in another, yet it is a pi-oceeding authorised only in the court of the county in which the defendant may be, and on the production alone of a transcript of the record of such judgment, under the seal of the court in which it was obtained. Which certainly is not this case. It is not the case of an attachment awarded fay Harford county court on the production of a transcript of the record of a judgment rendered in Baltimore county court against Preshury, who had fled, removed, or absented himself from Baltimore county, and was then in Harford. county; but of an attachment, sued out of Harforcl county court, on a return to that court of nulla bona, by the sheriff of .Harford county, on a writ 'of fieri facias issued out of Baltimore county court, and directed to him, upon a judgment rendered in Baltimore county court against Presbury, accompanied by the production of a short copy of the judgment. And to show that the attachment regularly issued, the acts of October 1777, ch. 12, s. 3; 1794, ch. 54, s. 9, and 1795, ch. 23, s. 1, have been referred to, by which it will be seen, on examination, do- not authorise such a proceeding.

By the act of October 1777, ch. 12, s. 3, if a defendant in a judgment shall remove from the county in which the judgment is rendered, to any other county, an execution may issue from the court in which the judgment was rendered, to the sheriff of the county in which the defendant shall reside, returnable to the court of that county; and it is only made necessary for the plaintiff to produce a short copy- of the judgment before the court, to which the execution is returnable, to entitle himself to the benefit of such execution. The act of 1715, ch. 41, it has been seen, relates to the case of an absconding debtor, and authorises an attachment to be awarded by the court oí the county in which he may happen to be, on the production of a transcript of the record, and in no other case.

The act of October 1777, ch. 12, relates to the case of a removal by the defendant, for the purpose of residence; in which the execution is to be issued from the court in which the judgment was rendered, returnable to the court of the county in which the defendant may reside; with no authority to that-court to issue any execution by attachment or otherwise, on the production of a short copy of the judgment; which was the «nly evidence that was produced in this case to the court of Harford county, of a judgment against Presbury in Baltimore county court. The ninth section of the act of 1794, ch. 54, gives to judgment creditors this further remedy, that upon the return of nulla bona on a fieri facias, issued in the county, in which a judgment has been obtained, the clerk of the court of that county is authorised to issue an execution against the goods and chattels, lands and tenements, of the defendant, in any other county, returnable to the court of the county in which such goods and chattels, lands and tenc merits, may be and lie, without respect to the residence of the defendant. And by this act too, it is only made necessary for the plaintiff, to entitle himself to the benefit of such execution, to produce before the court, to which it shall be returnable, a short copy of the judgment. This act, no more than the act of October 1777, ch. 12, authorises the issuing an execution of any kind, out oí any county court, on the production of a short copy of a judgment rendered in a different county. But like that act, does no more than give authority to the clerk of a county court, in which a judgment is rendered, to issue an execution on such judgment, returnable to the court of another county; with this difference only, that by the act of 1777, ch. 12, an execution so issued, is to be returned to the court of the county in which the defendant shall reside, and by the act of 1794, ch. 54, to the court of the county in which the goods- and chattels, lands and tenements, of the defendant, may be and lie. An attachment is not an ordinary process, by which to arrive at the fruits of a judgment, and will only lie, when-specially authorised; as by the act of 1715, ch, 40, s. 7, from the court in which the judgment was rendered, against the goods, chattels and credits, of the absent defendant; and by the 'act of 1715, ch. 41, s. 8, from the court of the county in which a defendant may happen to be, who has fled,, removed, or absented himself from the county in which the judgment was rendered, upon the production of a transcript of the record. The-proceeding by attachment, therefore, is not considered as embraced or intended by the general term execution, as used in theactsof October 1777, ch. 12, and 1794,ch. 54, which is only to be understood, according to its ordinary and familiar acceptation. And the act of 1795, ch. 23, s. 1, which has been mainly relied upon, authorises the same kind of execution only that is authorised by the acts'of 1777, ch. 12, and 1794, ch. 54, and-gives no original authority to the court of one county to issue • an attachment in nature of an execution, or any other execution on a judgment rendered in another. But only authorises, when executions have been sent from one county to another, according to the provisions of the acts of 1777, ch. 12, and 1794, ch. 54, the same kind of executions to be renewed out of the county court, to which the preceding executions wore. returned, and to be proceeded upon, as if the judgments had been rendered in such courts — that is, the renewed executions to be so proceeded upon. The language of the act is: “that in all cases where any execution has been, or shall be sent, with an attested copy of the judgment whereon the same may have been issued from one county to another, according to the provisions of the act passed at October session 1777,” &c. “and of the act passed at November session 1794,” &c. “the same proceedings shall and may, upon the return of such execution, be had thereon in the county court of the county to which such execution has been, or shall be sent, as if the said execution had been originally issued by the said court on a judgment obtained therein; and the same execution may, if necessary, be renewed from time to time, in virtue of such attested short copy of the judgment, out of the county court to which such original execution shall have been returned, and be proceeded upon in like manner as if the judgment in such case had been rendered therein.” The renewal ¿ere provided for, has reference to the original, and the terms' “the same execution may be renewed,” can only moan, that another execution of the same kind may be issued, and not that a different kind of execution may be issued, which would not be a renewal of the former. And the original in this case from Baltimore county, being a fieri facias, it was a fieri facias only that was authorised to be issued from Harford county court, and not an attachment, which was not a renewal of the original, or in the language of the act, the same execution; but of an entirely different character, and only authorised by the act of 1715, ch. 41, s. 8, to be awarded, in the class of cases therein provided for, by a court, other than that in which the judgment is rendered, upon the production of a transcript of the record, and by no act, upon the production of a short copy of the judgment only. And as neither the act of October 1777, ch. 12, nor the act of 1794, ch. 54, authorises the issuing an attachment from one county to another, so neither does the act of 1795, ch. 23; but the whole office of that act is to secure to a plaintiff suing out an execution from one county to another, according to the provisions, cither of the act of 1777, ch. 12, or of the act of 1794, ch. 54, the full benefit of such execution; and also to authorise the re newing, if necessary, such execution from the county court to which it may be returned. And it provides in no case for the issuing an attachment, in nature of an execution on a judgment, from the county court in which such judgment is rendered, to another county, but leaves the law upon that subject as it was before.

But even if an attachment was embraced by the general term execution, as used in the acts of October 1777, ch. 12, and 1794, ch. 54, yet no attachment having been sent from Baltic more county to Harford county, there was nothing to authorise the issuing an attachment from the county court of Harford} that court being clothed with no authority to issue an original execution of any kind in the case, but only to renew such as might be sent from Baltimore county, accompanied by a short copy of the judgment. And it, moreover, the aet of 1795, ch. 23, could be understood by the terms, “and the same execution may, if necessary, be renewed,” as authorising the issidng any kind of execution, dilferent from the original returned, still this case is not covered, which is not founded upon, and if it was, could not be sustained under the act of October 1777, ch. 12. It is not stated in the proceedings, nor does it in any manner appear, that Presbury was residing in Harford county, and that act authorises an execution, of no kind, to be issued from the county court in which a judgment is obtained, to any county, other than that in which the defendant shall reside; and any renewal, founded upon the return of an original execution that issued without authority, must be irregular— the , act of 1795, ch. 23, only authorising renewals of executions sent from one county to another, by the court to which they are returned, where the original executions are sent “according to the provisions of the acts” of October 1777, ch. 12, and 1794, ch. 54. And if these proceedings are to be considered as founded upon the act of 1794, ch. 54, after a return of nulla bona to Baltimore county court, it will make no difference. That act, upon the return of nulla bona, on a fieri facias, in the county in which a judgment has been rendered, authorises the issuing an execution against the goods and chattels, lands and tenements only, of the defendant, lying and being in any other county, returnable to the court of the county in which such goods and chattels, lands and tenements, may be and lie) and authorises no execution by attachment, or otherwise, to be sent to a foreign county, against any thing else than the goods and chattels, lands and tenements, of the defendant. And there is nothing in the act of 1795, ch. 23, under any construction of it, that authorises the court of a county, to which an execution has been sent from another county, according to the provisions of the act of 1794, ch. 54, to issue any other execution than such as could have been sent from the county in which the judgment was obtained In this case a fieri facias was sent from Baltimore county, where the judgment was rendered, to Harford county, to affect such goods, &c. of the defendant, as might be there; and if an attachment could, under the act of 1794, have been sent, it could only have been against the goods and chattels, lands and tenements, of the defendant, and not against his credits. But upon the return to Harford county court of nulla bona, on the fieri facias sent from Baltimore county, and the production of a short copy of the judgment, an attachment, in nature of an execution, was sued out of that court, by way of renewal, against the lands, tenements, goods, chattels and credits, of the defendant; by virtue of which the credits alone of the defendant were attached in the hands of Moores, the garnishee, against which there was no authority for issuing an attachment from that court, if an attachment could have been issued at all. And having, m any view of the subject, as we think, improvidently issued, it was properly quashed on motion.

JUDGMENT AFFIRMED.