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Suits for unliquidated damages, and all actions for torts, are ordinarily denied the aid of this remedy, but in several States the statutes authorize its application in such causes. The wrongful conversion of personal property has been made a ground of attachment, though in but few States. Whatever the cause of action in which attachment is authorized, if the defendant be a non-resident, and the statute does not distinguish between domestic and foreign attachments, the latter may be employed, even though the authorization of the remedy be extended to other claim than debt.1
though the parties thereto are foreign cor- (Mass.) 455; Hazard v. Jordan, 12 Ala. porations."
130; Joslyn v'. Merrow, 25 Vt. 185. But “ A suit in the nature of a foreign at
the ge al rule is that the remedy is intachment" cannot be maintained under applicable to a suit for unliquidated damthe statutes of Virginia, unless the claim ages. asseried be actually due. “Unless the Unliquidated Damages.—The plaintiff bill avers that a debt is due the plaintiff made affidavit that the defendant was by one who is a non-resident of this non-resident and was indebted to him in State, and who has estate and effects in the sum of $35,000 for rents and royalties this State, it is demurrable.” Batchelder accrued-$2 per ton for all ore mined and v. White, 80 Va. 103.
removed, and 10,000 tons to be mined But it has been held, in some other and removed annually, etc. It was held States, if the debt be existent and certain, that attachment would not lie for the m'erely needing time to mature it, it may damages accruing on breach of the be reached. Benson v. Campbell, 6 covenant to mine and remove the stipuPort. (Ala.) 455. Compare Jones 7. Hol- lated quantity. Heckscher v. Trotier, land, 47 Ala. 732; Taylor v. Drane, 13 48 N. J. L. 419. “ An attachment will La. 62; Henderson v. Thornton, 37 Miss. not lie for unliquidated damages, and can 448; Bacon v. Marshall, 37 Iowa, 581; be used only when the demand is for a Cox v. Reinhardt, 41 Tex. 591.
certain sum. Schenck v. Griffen, 9 Debt Payable in Another State.—Under Vroom (N. J.). 462–7; Jeffery v. Wooley, a statute which provides that the plaintiff 5. Halst. (N. J.) 123; Boyd v. King, 7 may have the property of the defendant Vroom (N. J.), 21. attached “in an action upon a contract, Under both species of attachment, the express or implied, for the direct payment preliminary levy for unliquidated damof money, which contract is made or is ages for tort and the like is not allowed. payable in this State,” it was held, in Ferris v. Ferris, 25 Vt. 100; Tarbell v. Oregon, that a promissory note made in Bradley, 27 Vt. 535; Thompson v. CarCalifornia could not be collected by al- per, 11 Humph. (Tenn.) 542; Hough v. tachment in Oregon without any stipula. Kugler, 36 Md. 186; Atlantic Mut. Ins. tion that the note should be paid there. Co. v. McLoon, 48 Barb. (N. Y.) 27. Trabant v. Rummell, 14 Oreg., 17. Although in domestic attachment the
Debts on Contract. —" Foreign attach- statutes vary as to authorization with ment is limited, in respect to the cause of respect to actions ex delicto and for unaction, to debis contracted or owing by liquidated damages; yet, as against a the defendant, which is only extended to trustee or garnishee, such actions are not actions ex contractu." Piscataqua Bank maintainable. Hugg v. Booth, 2 Ired. v. Turnley, 1 Miles (Pa.), 312; Porter v. (N. Car.) 282; Deaver v. Keith, 5 Ired. Hildebrand, 2 Harris (Pa.), 129; Boyer (N. Car.) 374; Graham v. Moore, 7 B. v. Bullard, 102 Pa. St. 555; Holcomb v. Mon. (Ky.) 53; Rundlet v. Jordan, 3 Me. Town of Winchester, 52 Conn. 447. 47; Paul v. Paul, 10 N. H. 117; Despatch
1. Damages for Breach of Contract.-It Line v. Bellamy Mfg. Co., 12 N. H. 205; has been held that a claim for unliqui- Fish z'. Field. 19 VI, 141; Barker v. Esty, dated damages for the breach of a con- 19 Vt. 131: Boardman v. Roe, 13 Mass. tract may be secured by process of for- 104; Foster v. Dudley, 10 Fost. (N. H.) eign attachment. New Haven Saw. 463; Lomerson v. Iloilman, 1 Dutch. (N. Mill Co. v. Fowler, 28 Conn. 103, 107. J.) 625. Compare, as to whether unliquidated Tort. -A claim for a tort is not a debt damages on contract constitute a debt, within the meaning of the term as used Gray v. Bennett, 3 Metc. (Mass.) 522; in the statute with regard to foreign alMill Dam Foundry v. Hovey, 21 Pirk. tachment. Holcomb 7. Town of Win
V. What May be Attached and What May Not.-I. In General.The foreign debtor's property, in his own possession, or in that of others subject to his control, may be attached—the latter by garnishment. The lawful possession of an assignee, mortgagee, or lienholder cannot be disturbed.1
chester, 52 Conn. 447. The court said The reason is that the plaintiff in a in this case: “ To hold that the word foreign attachment stands on no better debl’as used in the statute concerning footing, as to the thing attached, than foreign attachment includes a right of his debtor. Noble v. Thompson Oil Co., action for a tort before it had become 79 Pa. St. 354. merged in a judgment would be 10 Il not recorded in the county, an astranscend all rules for the construction of signment for the benetic of creditors does statutes. ... In other jurisdictions it not have priority over a foreign attachhas long been considered well settled that ment laid after the act of assignment. the word 'debri' as used in the law of Steel v. Goodwin, 113 Pa. St. 258. garnishment (as the process is elsewhere A debt due from the garnishee to A, usually termed), includes only legal debts, by assignment from B, may be taken or causes of action for which debt or as- by a foreign attachment against A." sumpsit may be maintained. but never Apthorp v. Lockwood, i Root (Conn.), includes claims for torts, Freeman on 198. Executions, $ 162, 167; Cook v. Wall- Foreign Assignment with Preferences.hall, 20 Ala. 331; Victor v. Hartford Fire An assignment for the benefit of crediIns. Co., 33 luwa, 210; Foster v. Dudlev, tors containing preferences, made in 30 V. H. 463; Getchell v. Chase, 37 N. New York, conveying real property in H. 106.'
Illinois, will not be held invalid in the 1. Assignment Not Recorded in the latter State against non-resident attaching County. - An unrecorded assignment creditors, notwithstanding Starr & C., does not prevent the foreign attachment ch. 72, $ 49, providing that “every proof propery in the county, in Pennsylva- vision in any assignment hereafter made nia, though the levy be made subse. in this State, providing for the payment quently to the making of the act of as- of one debt or liability in preference to siguient. Steel v. Goodwin, 113 Pa. another, shall be void,” as the laws of St. 285. The contrary doctrine prevailed New York allow such preferences and in Northwestern Forwarding Co. v. the assignment was there made. May v. Mahafsey, 36 Kan. 152. Upon the ques
First Nat. Bank, 122 III. 551. Borm v. Tuthill, I G. Greene Lienholders. - What is legally held by (Iowa), 190; Hopping v. Burnam, 2 G. a lienholder cannot be taken from him Greene (Iowa), 39; Norton v. Williams, 9 under a writ directed against the property Iowa, 529; Parker 9. Miller, 9 Ohio, 110; of the principal owner. Williams v. Bloom 21. Noggle, 4 Ohio St. 45; Stowe Morgan, 50 Wis. 548; Perry v Williams, v. Meserve, 13 N. H. 46; Carier v. Cham- 39 Wis. 339; Sargent v. Carr, 12 Me. pion, S Conn. 5-49; Coffin v. Ray, 1 Metc. 396; Carpenter v. Dresser, 72 Me. 377; (Mass.) 212 ; People v. Cameron, 7 De Wolf v. Dearborn, 4 Pick. (Mass.) III. 463; Holden v. Garrett, 23 Kan. 98; 466; Robinson v. Mansfield, 13 Pick. Davis 2', Owosby, 14 Mo. 170; Valen- (Mass.) 139; Townsend v. Newell, 14 tine . Havener, 20 Mo. 133; Stillwell v. Pick. (Mass.) 332; Stearns v. Dean, 129 McDonald. 39 No. 282; Poller v. Mc- Mass. 139; Seymour v. Newton, 105 Dowell, +3 Mo. 93; Reed z'. Ownsby, 44 Mass. 272; Haven v. Low, 2 N. H. 13; Mo. 201; Sappington v. Oeschli, 49 Mo. Morse v. Hurd, 17 N. H. 246; Inslee v. 244: Block i. Lung, 60 Mo. 181; Tyrell Lane, 57 N. H. 454; Thompson 2. Rose, 3. Rountree, 7 U. S. 464,
16 Conn. 71; Brownwell v. Carnley, 3 Assignment Without Notice. - If for. Duer (N. Y.), 9: Bodega z'. Perkerson, 60 eign attachment is served on the gar- Ga. 516; Wolfe z'. Crawford, 54 Miss. nishees before they have notice of a valid 514; Henry 7. Quackenbush, 48 Mich. assignment, the effect is not to postpone 415; Moore v. Murdock, 26 Cal. 514; the claim of the assignees to that of the Rix v. Siikniter, 57 Iowa, 265; McNeill attaching creditors. Wakefield 7. Mar- v'. Glass, i Martin, N. S. (La.) 261; lin. 3 Mass. 558; Dix 7'. Cobb, + Mass. Skillman v. Bethany, 2 Martin, N. S. 512; Van Buskirk v. Warren, 32 Barb. (La.) 104; Lambeth v. Turnbull, 5 Rob. (N. Y.) 457; Coit v. Bull, Kirby (Conn.), (La.) 264. 149.
The reason is that, as the attaching 8 C. of L.-20
2. Debts Due Defendant.-A debt, to be attachable in third hands, must be payable within the State of the jurisdiction where the suit against the attachment defendant is instituted.1 It must be such that the defendant might collect it but for the attachment; that is, it must be due, under the rule of most of the States, though there are exceptions. The rule is that it must be both due and payable within the State.3
creditor can have no greater rights as the restricted sense of 'payable.' There subrogee than the debtor, he cannot dis.. must be, however, an existing indebtedpossess the lienholder when the latter ness." Sand-blast File-sharpening Co. cannot. Rix v. Silknitter, 57 Iowa, 265; 7. Parsons, 54 Conn. 310. Stephenson J. Walden, 24 Iowa, 84; There must be a valid debt due (or beHoughton v. Davenport, 74 Me. 590; coming so) to the defendant, to enable Oliver v. Lake, 3 La. Ann. 78.
the attaching creditor to attach it in A chattel morigagee may demand of third hands. It must be such that the the attaching officer payment of his claim, attachment defendant could maintain a stating the amount and the nature of it. suit to recover it against his debtor. A demand by assignee, without stat- Caldwell z. Coates, 78 Pa. St. 312; Paul ing the names of the parties to the mort- v. Reed, 52 N. H. 136; Cobb v. Bishop. gage, date of the contract, and time of 27 Vt. 624; Morey v Sheltus, 47 Vt. 342; payment, is insufficient. Wilson Fellows 7. Duncan, 13 Metc. (Mass.) 332; Crooker, 15 Mass. 571.
Geer v. Chapel, il Gray (Mass.), 18; It has been held that a mortgagee of Curtis v. Alvord, 45 Conn. 569; Victor real estate has an attachable interest v. Hartford Ins. Co., 33 Iowa, 210; Nestherein after the condition has been bitt z'. Ware, 30 Ala. 68; Powell v. Sambroken and his right of foreclosure has mons, 31 Ala. 552; Webster v. Steele, 75 arisen. Thornton v. Wood, +2 Me. 282; III. 544. Fay 11. Cheney, 14 Pick. (Mass.) 399. * Any debt due by the garnishee in a Compare Smith v. Peoples' Bank, 24 Me. foreign attachment to the defendant at 185.
the time of the answer to interrogalories i. Debt Due to a Non-resident. - It is is embraced by the attachment. A claim “ liable to foreign attachment where the uncertain at the time of the attachment, debtor is within reach of process.
but rendered certain at the time of the mere contract by a non-resident to sell answer to the interrogatories is emproperty, for a certain price, to a person braced. Franklin Fire Ins. Co. v. West, within the jurisdiction, is not such a 8 W. & S. (Pa.) 350. debt, for the debt is not created until 3. Debt Due and Payable Within the the contract is executed by the vendor.” State.--If a Kentucky corporation, doFurness v. Smith, 30 Pa. St. 520.
ing business in Alabama, owes a citizen “A debt due to a non-resident is and resident of the former State, this bound by a foreign aliachment issued in debt cannot be reached by garnishinent this State (Pennsylvania). notwithstand proceedings in Alabama. Louisville, etc., ing a previous assignment by him in R. Co. ?'. Dooley, 78 Ala. 524. trust, of all his estate and effects, where A debt created and payable in Misthe assignment was not recorded within souri is not subject to garnishment in the county in which the debt attached Kansas-all the parties being residents was due, as required by the act of 3d of of Missouri, and the garnishee's debt to May, 1855, and no notice of the assign- the defendant being exempt under the ment was given to the attaching cred- Missouri law, the garnishee doing busiitor.” Philson v. Barnes, 50 Pa. St. 230. ness in Kansas and the plaintiff and de
Notes due by a resident to a non-resifendant lemporarily there. Missouri Pac. dent debtor, and in the hands of another R. Co. v. Maltby, 34 Kan. 125. resident for collection, are subject to A foreign corporation having no propattachment. West 2'. Sanders, i Marsh. erty of the defendant in Nebraska, and (Ky.) 112.
owing nothing to the defendant payable 2. Debt Due or becoming so, -“The there, is not subject to garnishment statute with regard to foreign attachment there. Wright v. Chicago, etc., R. Co., (Gen. Statutes, p. 397, sec. 2) provides 19 Neb. 175. for such attachment where a debt is due Debt Not Due.-" There is no judg. from any person to such defendant. ment or authoritative dictum to be found Held, that the word 'due’ is not used in in any book that money due upon such a
What is adjudged to be due to a plaintiff has been held attachable, when not in custodia legis.1
negotiable instrument can be aitached seizure in the State in which they were before it is payable; and, in point of rea- earned, and the attachment defendant to son, policy, and usage, as well as upon which they are owing be a non-resident. principles of convenience and equity, we Burlington, etc., R. Co. v. Thompson, ihink it would be dangerous and wrong 31 Kan. 180; s. C., 16 Am. & Eng. R. R. to introduce and establish a precedent of Cas. 480. Debt is transitory and payathis kind. To adjudge that a note, ble (unless there be a fixed place of paywhich passes from hand to hand as cash, ment) wherever the debtor may be found. on which the holder may institute a suit Brauser v. New Eng. Jos. Co., 21 Wis. in his own name, which has all the prop 506; Bank v. Railroad Co., 45 Wis. 172; erties of a bank note payable to bearer, Fithian v. Railroad Co., 31 Pa. St. 114. which would be embraced by a bequest When Both Parties Non-resident and of money, and which is actually in circu- Debt Foreign.- Both the plaintiff and lation in another State, should be affected defendant resided in New York, in a in this way by a foreign altachment suit brought in Vermont on would be, in effect, to overthrow an es- made in New York. Upon that contract sential part of the commercial system, the plaintiff sought to charge the trustee, and to annihilate the negotiable quality which was a body corporate existing unof all such instruments." Ludlow u. der the laws of New York, operating a Bingham, + Dall. (Pa.) 47. Compare continuous line of railroad from Troy, Kiefer 2. Elsler, 18 Pa. St. 338; Day v. N. Y., lo Rutland, Vt. The debt claimed Zimmerman, 68 Pa. St. 72, under statute was for services rendered in New York, subsequent to the Ludlow case.
and due and payable there. The trustee Debt Exempt in one State, Yet Attach- was discharged. Towle v. Wilder, 57 Vt. able in Another.-A citizen of the State 622. of Ohio, having a valid debt against But if both parties have residence in another citizen of that Stale, which can- the State, the rule is different, though not be collected by legal process there the debt be foreign in the sense of have by reason of the exemption laws of ing been contracted in another State. that Stale, and which laws make it a Chicago, etc., R. Co. v. Ragland, 84 Ill. misdemeanor for such creditor to assign, 375; Pierce v. Chicago, etc., R. Co., 36 transfer, or send out of the State such Wis. 283; Conley v. Chilcote, 25 Ohio debe for the purpose of having it collect. St. 320; Helfenstein v. Cave, 3 Iowa, ed by proceedings in attachment in 287; Newell v. Hayden, 8 Iowa, 140; courts outside of that State, with intent Moore v. Chicago, etc., R. Co., 43 Iowa, to deprive such resident debtor of per- 385. sonal earnings so exempt, when the per. 1. Judgment, When Attachable.—A forson or corporation owing the money in- eign railroad corporation that has actended to be attached is within the juris- cepted the privilege of extending its works diction of said State, has a right to bring trough Pennsylvania, on the condition an action and attach such earnings for that they keep at least one manager such debt in the courts of West Virginia, or other officer resident within the State, when the garnishee is a domestic corpo. on whom process in actions against the ration of the latter State, and the attach- company may be served, may be made ment is served on such garnishee in the a garnishee in an attachment execution, county where the action is brought, not- il respect to a debt owing by them to a withstanding such creditor may have sent non-resident. A judgment recovered the claim to West Virginia and instituted against the company in the court of anhis action there for the purpose of evad- other State, may be attached under such ing the exemption laws of Ohio. Stevens process. Fithian v. N. Y. & Erie R. Co., 31 7. Brown, 20 W. Va. 450, 451.
Pa. St. 114. A judgment is held attachaAs State laws have no extra-territorial ble, though pending on a writ of error. effect, a credit exempt from attachment Woodward v. Carson, 86 Pa. St. 176. in one State may be liable in another. “A judgment debt may be held by proA foreign corporation may be garnisheed cess of foreign attachment, although subfor wages due the attachment defendant, sequent to the attachment the judgment if it come into the State where the at- creditor has taken out and commenced tachment suit is instituted, engage in to levy his execution. Gager v. Watson, business there, and subject itself to pro- 11 Conn. 171. cess there, though wages be exempt from Judgment Debt. — “ By the Custom of
3. Promissory Notes.-A garnishee is not liable for a negotiable note which he holds for the attachment defendant, though the maker of an unnegotiable one may be charged as garnishee, at the suit of the payee before receiving notice of its assignment. After notice received, he should disclose the fact of assignment in his answer. If the note be assigned after his answer, he should make a supplemental answer and disclose the fact.
The maker of a negotiable note is subject to a different rule. He cannot be garnisheed in a suit against the payee, under an attachment served before the maturity of the note, unless it becomes due (while yet the property of the attachment debtor) before the rendition of judgment in the attachment proceedings."
London, from which our foreign attach this respect has been considered as parament system was principally derived, it mount to the possible and occasional in. is said that a judgment debt cannot be conveniences, etc.” Gager v. Watson, attached, and the same has been holden U Conn. 168. by the courts of Massachusetts. A fair, Judgment Debt-Prescription.-A judgand, as we think, very obvious construc- meni debt obtained in foreign attachtion of our statute on this subject, as ment was presumed to have been paid well as the general policy of our attach- after a lapse of iwenty years, though the ment laws, leads us to a different conclu- proceeding against the garnishee had sion. It is enacted that “Where debts beeh nominally pending all the while. are due from any person to an absent Biddle v. Girard Nat. Pank, 109 Pa. Si. and absconding debtor, it shall be lawful 349. for any creditor to bring his action 1. Drake on Attach, 6th Ed.) SS 574against such absent and absconding 588. debtor ;' and that any debt due from Negotiable Notes. — The general rule is such debtor to the defendant shall be se- that an attachment is unavailable against cured to pay such judgment as the plain- a bona fide holder of negotiable paper for tiff shall recover.' The provisions of value, who obtains it after attachment this statute were extended, in 1830, to served on the maker as garnishee, before the attachment of debts due to such per maturity and without notice. Ludlow v. sons as should be discharged from im- Bingham, 4 Dall. (Pa.) 47 ; Enos v. prisonment. The language of this stat- Tuule, 3 Conn. 27; Huffv. Miller, 7 ute clearly embraces judgment debis as Yerg. (Tenn.) 42 ; Hinsdell v. Stafford, well as others, and the reason and equity 11 Vt. 309; Lilile v. Hale, ii Vt. 482; of it are equally extensive. A judgment Eunson v. Healy, 2 Mass. 32; Maine debt is liquidated and certain, and, in Ins. Co. v. Weeks, 7 Mass. 439; Grant ordinary cases, liitle opportunity or v. Shaw, 16 Mass. 344 ; Cushman v. necessity remains for controversy re- Haynes, 20 Pick. (Mass.) 132. “The specting its existence, character, or negotiation of such note by the payee,
The policy of our laws has after notice of the attachment, is a fraud ever required that all the property of a upon the law, and the court from which debtor, not exempted by law from execu- the attachment issues may require the tion, should be subject to the demands instrument to be placed in such custody of his creditors, and that every facility as will prevent its improper transfer, consistent with the reasonable immuni. taking care that payment of it be de ties of debtors, should be afforded to manded at maturity, and, if necessary. subject such property to legal process. proper notice given to indorsers--the It is true, as has been contended, that money, is paid, to be in the place of the to subject judgment debts to attachment, note, to abide the event of the proceedand especially those upon which execu- ing.' Kieffer v. Ehler, 18 Pa. St. 388. tions have issued, may in
If the note is indorsed after maturity, produce inconvenience and embarrass- judgment in the attachment will be a ment to debtors, as well as to creditors. good defence to an action by the holder Such consequences have resulted from against the maker. Hill 21. Kroft, 29 Pa. the operation of our foreign aliachment Si. 186. system in ordinary cases, etc. ...; but Where the defendant offered evidence the general interest of the community in of a foreign attachment against the plain