General Principles.

of assumpsit against the assignee for money had and received. U. S. v. Molt, 1 Paine, 629.

39. Where an action of assumpsit is brought against an assignee, and he has funds which cannot be reached by the action, it seems that he is not entitled to a deduction for his expenses incurred in the preservation of the property, and the execution of his trust. Ibid.

issue against an attorney who endorses the writ, and who by the lex loci is liable to respond the costs. Anonymous, 2 Gallis. C. C. R. 101.

6. Motions and affidavits for attachment in civil suits, are proceedings on the civil side of the court, until the attachments issue; and are to be entitled in the names of the parties; but as soon as the attachment issues, the proceedings are on the criminal side. U. S. v. Wayne, Wallace's C. C. R. 134.

40. An incorporated bank, or insurance company, although it has no express power to make a promise not under seal, is yet liable for the 7. Where the court of admiralty has parted notes issued by it; for the funds deposited in it; with the possession of the property upon bail or for the repayment of a premium, the considera- stipulation, and it is necessary for the purposes tion of which has failed; or for any other express of justice to retake the property into the custody or implied assumpsit in the ordinary course of of the court, the proper process against any its business, as a natural person. Bank of Co-person not a party to the stipulation, but who is lumbia v. Patterson's Adm'r., 7 Cranch, 305; 2 Cond. Rep. 501.

41. In the case of Cary v. Curtis, 3 Howard 236, it was decided that under the act of congress of March 3, 1839, 5 Statutes at Large, 348, which requires collectors to place to the credit of the treasurer of the United States all moneys which they receive for unascertained duties on foreign merchandise, or for duties paid under protest, assumpsit or other action will not lie against the collector by the claimants for the same.

42. [By an act of congress of February 25, 1845, 5 Statutes at Large, 727, it was declared that an action at law may be maintained against any collector, &c., for duties paid under protest, or for unascertained duties, to ascertain the duties payable by law.-ED.]

ATTACHMENT.

1. General principles.

2. Attachments against persons
3. Attachments for contempt
4. Attachments in the admiralty..
5. Foreign attachments

1. General Principles.

alleged to have the article, or constructive pos session, is a monition, and not an execution in the first instance. The Gran Para, 10 Wheat. 497; 6 Cond. Rep. 199.

8. An equity of redemption of real estate, in Maryland, is liable to attachment. Pratt et al. v. Law, 9 Cranch, 460; 3 Cond. Rep. 460.

9. Where a party claims under an attachment, he must file a caution in court, to hold the proceeds remaining after satisfying prior claims. The Louisetta, 2 Gallis. C. C. R. 307.

10. Under the statute of Massachusetts of 1823, ch. 242, giving relief against fraud, to se cure attaching creditors, it is not necessary that the second attachment should be returnable to the same term of the court as the first attachment. Query, If the plaintiff must in all cases under that act, sign and make oath to his petition, to be admitted to defend against the first attachment, or it may be done, if he is abroad, by his agent? Lodge v. Lodge, 5 Mason's C. C.

R. 407.

1. The service of a subpoena, in case of a chancery attachment in Virginia, will make the garnishee liable, if he pays away the money after notice of the subpoena. Kennedy v. Brent, 6 Cranch, 187 2 Cond. Rep. 345.

2. An attachment issuing from the courts of the United States must be served by the marshal of the United States. The United States v. Montgomery, 2 Dall. 335.

3. Under the attachment law of Maryland, when the defendant appears and dissolves the attachment, it is not necessary that there should be a declaration and subsequent pleadings according to the course of ordinary actions. Goldsborough v. Orr, 8 Wheat. 217; 5 Cond. Rep. 412. 4. If a bond taken on the delivery of property on bail be void, as not conforming to law, the court will enforce a redelivery of the property by attachment. The Struggle, 1 Gallis. C. C. R. 476. 5. The marshal may have an attachment to enforce the payment of his fees of office, by the suitors of the court. So an attachment may

12. The United States have a preference, under the 5th section of the act of congress of 3d March, 1797; the act of May 2, 1792; and 4 August, 1790, over attachments. Bee's Adm. Decis. 196.

13. An assignment of property for the benefit of creditors, is good against a subsequent attach ment; although the creditors were not originally parties to the assignment, if they have, in fact, assented thereto before the attachment. Brown v. Minturn, 2 Gallis. C. C. R. 557.

14. Query, If such assent be necessary, to make such an assignment valid against the attachments of other creditors? Ibid.

15. An attachment to bring a party into court is the usual process, when he has not made a sufficient return to a habeas corpus, unless he is present in court, in which case the court may order him to answer interrogatories immedi ately. The United States v. Green, 3 Mason's C. C. R. 482.

16. The United States have no such priority on other creditors of their debtors, as to entitle them to a prior satisfaction, by attachment and

Attachments against Persons.-Attachments for Contempt.

levy, over prior attaching creditors. The United | bring a party into court, where he has not made States v. Canal Bank, 3 Story's C. C. R. 79. a true return and if he is present in court, no 17. In Massachusetts and Maine, a creditor such process is necessary; but the court may attaching real estate can hold the same against pass an order directing him immediately to ana person purchasing prior to the attachment, but swer interrogatories. U. S. v. Greene, 3 Mason's whose deed is not recorded until after the attach-Rep. 482. ment, provided the attaching creditor has had no notice of the deed at the time of the attachment. Ibid.

law, yet a compliance with the stipulations in the bond might be enforced by an attachment against the obligors. U. S. v. Four Pieces of Woollen Cloth, 1 Paine's C. C. R. 435.

25. Proceedings by libel were instituted upon a seizure of goods, and a bond given for their appraised value, on the delivery of the goods to 18. B. attached certain land as the property the claimant. Afterwards, the libel was changed of C., on October 4, 1839, and levied an execu- by an amendment to an information, and the tion thereon on the 11th of November, 1840. goods were condemned. On an application for C. conveyed the same land by deed to H., prior an attachment against the obligors in the bond, to the attachment; but the deed was not re- it was held that although the case was not regucorded until the 26th of October, 1839, and B.larly within the 89th section of the collection had no notice thereof prior to that time. The United States recovered judgment against C. and H., on duty bonds, subsequent to October, 1839, and levied execution on the same premises, prior to November, 1840, "as the estate of any or all the debtors." It was held that the United States were not entitled to a priority against B. Ibid. | 19. An attachment on mesne process is not a lien in the sense of the common law. In the matter of Bellows v. Peck, 3 Story's C. C. R. 428. 20. Where an attachment is made by creditors, and afterwards, before judgment in the suit, the debtor files his petition in bankruptcy, if the creditor, with the knowledge thereof, take judg ment and levy execution, and the debtor be afterwards declared a bankrupt, the levy and execution are a fraud on the bankrupt act, and are void. Everett v. Stone, 3 Story's C. C. R.

446.

2. Attachments against Persons.

21. The law operates upon all persons equally; the high, the low, the rich, the poor. If a subpoena is issued to a justice, or judge, and it is not obeyed, the court will be more strict against such characters, than against others whose offices did not so strongly point out their duty. But the practice must always be strict in the previous steps of the proceedings, before an attachment can be awarded; and all the documents upon which it is awarded must be filed with the court. The U. S. v. Caldwell, Circuit Court of the United States, 2 Dall. 334.

22. Attachments for the non-attendance of a witness, on a subpoena, must be served by the marshal of the court, although the persons against whom the process is issued, reside in a distant county. The United States v. Montgomery, Circuit Court of the United States, 2 Dall. 33. 23. An officer of the United States, who has levied a sum of money on an execution in favour of the United States, to whom the United States are indebted for fees of office in a sum greater than the amount of the execution, has a right to retain it by way of set-off; and on a motion made on the part of the United States, to commit the officer for failure to pay over the money so levied, he will be permitted to show that the United States are indebted to him; and if this be shown, it is sufficient cause why he should not be attached. The U. S. v. Mann, 2 Brockenb. C. C. R. 9.

24. An attachment is the usual process to

26. It makes no difference that the obligo were only sureties, and had not received the goods. İbid.

27. For such costs as the plaintiff is liable, the court will grant an attachment in favour of the officers of the court. Brown's Lessee v. Ar buncle, Peters' C. C. R. 103.

3. Attachments for Contempt.

28. That unfair practices towards a witness who was to give testimony in the circuit court, or oppression under colour of its process, although these practices and that oppression were acted in another district, would be punishable by an attachment for contempt, provided the person came within the jurisdiction of the court, is a position which the court is not disposed to controvert; but it is also believed that this mode of punishment ought not to be adopted, unless the deviation from law could be clearly attached to the person against whom the motion was made, and unless the deviation were intentional; or unless the course of judicial proceedings were, or might be so affected by it as to make a punishment in this mode obviously conducive to a fair and correct administration of justice. Per Mr. Chief Justice Marshall, in the circuit court of the United States of Virginia, 1 Burr's Trial, 355.

29. If the party against whom an attachment has issued for a contempt, by his affidavit and answers to interrogatories, discharge himself of the contempt, no farther proceedings can be had against him on the attachment; but if perjury appear, he will be recognised to answer, &c. U. S. v. Dodge, 2 Gallis. C. C. R. 313.

30. Any publication, pending a suit, reflecting upon the court, the jury, the parties, the officers of the court, the counsel, &c., in reference to the suit, or tending to influence the decision of the controversy, is a contempt of the court, and punishable by attachment. Hollingsworth v. Duane, Wallace's C. C. R. 77.

31. Before an attachment issues, the proceedings must be entitled in the suit in which the contempt is charged; afterwards they are to be entitled in the name of the United States. The United States v. Wayne, Wallace's C. C. R. 134. 32. A rule upon a party, to show cause why

Attachments in the Admiralty.-Foreign Attachments.

46. Under the attachment law of Maryland, when the defendant appears and dissolves the attachment, it is not necessary that there should be a declaration and subsequent pleadings, according to the course of ordinary actions. Goldsborough v. Orr, 8 Wheat. 217; 5 Cond. Rep. 412. 47. A judgment debtor is not liable to be at35. The admiralty may issue process of at-tached as a garnishee, under the foreign attachtachment to compel an appearance in cases of ment act of Rhode Island. Franklin v. Ward et maritime torts, as well as in cases of contract. al., 3 Mason's C. C. R. 136. Manro v. Almeida, 10 Wheat. 473; 6 Cond. Rep. 190.

Foreign Attachments.

portance to the variance between the account | payable at a future time; but no notice of this filed when the attachment issued, and the de- adjustment of the claim of the plaintiff was given claration filed after the attachment was dissolved, to the sheriff, nor was the suit on which the atby the entry of bail, and the appearance of the tachment issued discontinued. The defendant defendant. The defendant having pleaded to brought replevin for the property attached, the the declaration, the cause stood as if the suit sheriff having refused to redeliver it. Held, That had been brought in the usual manner, and no the sheriff was not responsible for levying the reference can be had to the proceedings on the attachment for the debt so satisfied, or for refusing attachment. Barry v. Foyles, 1 Peters, 315. to redeliver the property attached. Livingston v.

50. Under the foreign attachment law of Penn-Smith, 5 Peters, 89. sylvania, a foreign attachment may be laid on property in the hands of the plaintiff in the attachment. Graighle v. Nottnagle & Montmollin, Peters' C. C. R. 345.

51. The forms of proceedings under the foreign attachment laws of Pennsylvania are as follow. They commence with the ordinary writ of attachment, which is served on the goods and chattels of the debtor in whose hands soever 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 a clause of capias has been inserted in the writ, in which case he must give bail for his appearance. Judgment by default is then entered against the defendant at the third term, as a matter of course. After this a scire facias issues against the garnishee, to show cause why the plaintiff shall 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 hands or the debt due by him 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. 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 the property of the defendant he may have in his hands, and of the debts which he may owe him. Ibid. 346.

52. Where the garnishee is plaintiff in the attachment, the summons, scire facias, interrogatories, or any coercive process is not necessary. Ibid. 345.

53. Lands are subject to foreign attachment in Pennsylvania. Ibid.

54. In proceedings of foreign attachment against lands in Pennsylvania, there is no garnishee; and execution goes against the lands. Ibid.

55. Where a foreign attachment is laid on property or debts in the hands of the plaintiff in the attachment, the plaintiff retains the effects to satisfy his debt in consequence of the judgment; but in such a case the defendant is allowed in an action against the plaintiff to traverse the plea, and thus to contest the debt, recovered in the attachment. Ibid. 254.

56. A sheriff, having a writ of foreign attachment issued according to the laws of New Jersey, proceeded to levy the same on the property of the defendant in the attachment. After the attachment was issued, the plaintiff took the promissory notes of the defendant for his debt,

57. A previous attachment, issued under the law of New Jersey, of property as the right of another, could not divest the interest of the actual owner of the property in the same, so as to prevent the sheriff attaching the same property under a writ of attachment issued for a debt of the same actual owner. Ibid.

58. The language of the foreign attachment law of the state of Pennsylvania, seems to require that the specific property attached should be taken into possession by the officer, unless the garnishee will give security therefor. At all events, the law provides, positively, that the property shall remain in his power. The reasonable construction of the act would seem to be, that if the officer leaves the property in possession of the garnishee without security, he is himself answerable for the forthcoming, and in the mean time he retains the power to remove the effects. The possession of the garnishee must be virtually his possession; and thus the power of the officer over the attached effects which the law requires, would be preserved. Brashear v. West et al., 7 Peters, 621.

59. Where the plaintiffs in a foreign attachment consented to the sale of the property attached, and the same was sold by the garnishee, who received the proceeds of the sale, and afterwards became insolvent, and thus a total loss of the property and the proceeds was produced; the supreme court held, that the plaintiffs in the attachment were legally responsible to the defendant in the attachment. Pennsylvania. Ibid.

622.

60. On the 14th September, 1807, a foreign attachment was laid on the property of L., in the hands of the defendant; on the 19th of September, the defendant received goods belonging to L., who, at that time, was under acceptances of bills endorsed by L., and which, on their protest for non-payment by L., the defendant paid. The attachment entitled the plaintiff to the proceeds of the goods in the hands of the defendants, notwithstanding his liability for, and his subsequent payment of the bills endorsed by him. Taylor v. Gardner, 2 Wash. C. C. Rep. 488.

61. The plaintiff issued a foreign attachment against the defendant, a merchant of Canton, for the recovery of damages, to the amount of four thousand five hundred dollars, upon a promise made by him, for a valuable consideration, to deliver to the plaintiff a quantity of tea of a certain quality, which promise he had not complied with, but had broken. By the court: The law of Pennsylvania, of 1705, has received a liberal construction in the courts of the state, so as to extend its remedies to debts contracted in foreign

Attainder. Attendance of Witnesses.

62. To constitute such a debt as may be pursued by a foreign attachment, under the law of Pennsylvania, the demand must arise under a contract, without which no debt can be created; and the measure of the damages must be such as the plaintiff can aver, by affidavit, to be due, without which, special bail cannot regularly be demanded. Ibid.

63. The remedy by foreign attachment will not lie for demands which arise ex delicto, or where special bail cannot regularly be required. Ibid.

64. The promise of the defendant to deliver teas of a certain quality, was not complied with; and as the plaintiff swore that the difference between the teas promised and those delivered amounted to a particular sum, a foreign attachment lies. Ibid.

65. It is no ground for dismissing a foreign attachment, instituted in the circuit court, that the plaintiff had sued out another attachment against the defendant in a state court, and afterwards discontinued it. Ibid.

66. A judgment debtor is not liable to be attached as a garnishee, under the foreign attachment act of Rhode Island. Franklin v. Ward, 3 Mason's C. C. R. 136.

67. By the foreign attachment act of Rhode Island, (Digest, 1798, p. 208, sec. 4,] if the garnishees are discharged upon their disclosure, the suit is to be dismissed against the principal, as well as against the garnishees. Ibid.

68. Judgment in a trustee process against the defendant as a garnishee of the plaintiff, is no defence in a suit for the debt, if the plaintiff in the original trustee process has, by his neglect to comply with the local laws, put his judgment in a state of suspension, so that execution can no longer issue upon it, and it cannot be revived by a scire facias. Flower v. Parker, 3 Mason's C. C. R. 247.

69. As to the true nature and extent of the trustee process, authorized by the statute of Massachusetts of 1794, ch. 65; it seems that it does not authorize an attachment of any property which is not tangible, and might be levied on by execution, if discovered, or of any debts or credits, where the trustee sets up any title or claim adverse to that of the debtor; for example, where the trustee claims under a post-nuptial settlement by the debtor. Picquet v. Swan, 4 Mason's C. C. R. 443.

70. Where persons, sued as trustees in a foreign attachment, assert an adverse title to the property in a third person, as her separate property, they are not bound to answer how they have disposed of it for her use from time to time. Ibid.

71. A trustee may, in a foreign attachment process, set off against a debt or claim due from him to the debtor, any claim he has against the debtor, which she could set off in an adverse suit at law brought by the debtor himself. Ibid.

72. Where an attachment is laid on money in the hands of a third person, interest ceases from the time of the attachment until it is dissolved; but when a debtor, who is also a creditor, lays an attachment in his own hands, interest is chargeable, during the continuance of the attachment. Willings v. Consequa, 1 Peters' C. C. R. 301.

73. A. having funds in the hands of B., drew a bill of exchange in favour of C., who endorsed it to D. & E., to whom he was indebted; and the bill being protested for non-acceptance, D. & E. brought a suit against B., the drawer, in the name of C., the endorser; and before judgment, an attachment was laid upon the funds in the hands of B., as the property of C., and judgment obtained against B., as the garnishee. Held, That the attachment will not affect the right of D. & E. to recover the amount of the bill from the drawer; the right to the funds in the hands of the drawer, being completely vested in D. & E., by the endorsement of the bill. Corser v. Craig, 1 Wash. C. C. R. 424.

74. Property, in the hands of a third person, having a lien thereon, is not attachable in a suit against the general owner; but if the lien be waived, the objection does not lie in the mouth of the general owner. Meeker v. Wilson, 1 Gallis. C. C. R. 419.

75. If chattels are sold on an execution, the regularity of such sale cannot be contested by mere strangers. Ibid.

76. Notice of an assignment of chattels to a judgment creditor, where possession has never been taken under the assignment, does not affect the right of the sheriff or the creditor to seize the property in execution, as the property of the assignor. Ibid.

ATTAINDER.

1. Pennsylvania. A party who claims lands against an attainder, the correctness of which he denies, could not, upon the principles of the common law, controvert the title of the purchaser under the attainder in a collateral action; but would be compelled to reverse the attainder, and thus obtain a judgment of restitution. Hylton's Lessee v. Brown, 1 Wash. C. C. R. 344.

2. The state of Pennsylvania had a right to confiscate the estates, not only of its own citizens, but of non-residents who failed to surrender themselves, in conformity with the requisitions of the law of March, 1778; and the court will enforce that authority, and the subsequent laws, according to the true intent and meaning of them; unless the court should be of opinion that any of them are abrogated by some superior law. Lessee of Hylton v. Brown, 1 Wash. C. C. R. 307.

ATTENDANCE OF WITNESSES.

1. An attachment against a witness for non attendance after a subpoena, will not be opened, unless the whole proceedings by the subpoena have been regular. But there is no respect paid to the person or condition of a witness who has