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Deacon v. Oliver et al.

d. That the money had not been actually received, was no obstacle to a judgment of condemnation, with a stay of execu. tion till it should be collected; for the court has power to mo. dify its judgments and process to suit the exigency of each case; e. g. where property is subject to a lien, to have it ascertained was to get at the surplus. Davidson's Lessee 0. Beatty, 3 H. & McH. 594;. Pratt v. Law, 9 Cranch, 456, 496; Serg. on Attach. 91, 94; 2 Rawl. 227.

And where laid in the hands of a debtor, on a debt not yet due, no plea of nulla bona is allowed; but condemnation is given, and execution stayed till debt due. Somerville v. Brown, 5 Gill, 399; Serg. on Attach. 101, 102, 109.

Or where papers detained abroad. 4 Dall. 253; 2 Binney, 453; Serg. on Attach. 145.

So the court could have condemned Goodwin's interest, and either have sold it or evited its collection.

e. That the attachment, by way of execution, applies to all judgments, without regard to the residence of the defendant. 1 D. L. M. 22, 23; Act 1715, ch. 40.

1. The operative words of the section giving the remedy are of the widest possible scope.

2. The use of the word "absent” before defendant, occurs only in the last clause of the section requiring notice of the garnishee.

3. They only create a doubtful implication, which is not sufficient to limit the universality of the enacting words.

4. This section expressly dispenses with the prerequisites prescribed in the 1st and 2d sections, providing for the protection of absent defendants.

5. The 5th section of the act implies, that an attachment may be levied on the goods of a resident. (Printed out of place, 1 D. L. M. 763.)

6. The oldest forms of attachment, by way of executions, apply to residents. 2 Harris's Entries, 611; 2 Evans's Harris, 377.

7. The defendant must have been in the State before judgment could have been recovered; yet 2d section prescribes no way to show the removal.

8. The law of 1831, ch. 321, is declaratory, and not binding; the United States courts ought not to be allowed to raise an implication, so as to do by construction what it could not do by enactment.

9. It contravenes the whole purpose and policy of the attachment, by way of execution.

f. If, therefore, the court think the assignment of 1825, or any assignment before October, 1826, covered the commissions on the Mervin claim, they are covered by the above reasoning.

Deacon v. Oliver et al.

But if not, yet Oliver, holding possession of the evidences, the right to receive the proceeds, and being the party directed to pay Goodwin, he held Goodwin's claim to the commissions as agent, sufficiently to make him a fit garnishee, as having that credit in his hands.

Though the court doubt as to the commissions and Mervin debt, that will not affect the mortgage of the share in the company.

This fund could have been reached by bill in equity.

(a.) A bill in equity is competent to compel the application of the equitable property, the choses in action and equities of redemption of a judgment debtor which cannot be reached by fi. fa. to the satisfaction of the judgment. Scott v. Scholly, 8 East, 467, 508, 509; Clayton v. Anthony, 6 Rand. 285; Dold v. Gei. ger, 2 Grat. 112; Halley v. Williams, 1 Leigh, 140; Hadden v. Spader, 20 Johns. Rep. 554, 563, 564, 568; 2 Johns. C. C.; McDermott v. Strong, 4 Johns. C. R. 687, 690, 692; Bayard v. Hoffman, 4 Johns. Č. R. 450 ; Spader v. Davis, 5 Johns. C. R. 280; Hallett v. Thompson, 5 Page, 583; Griffith v. Fred. County Bank, 6 Gill & Johns. 424; Harris & Chauncey v. Alcock, 10 Gill & Johns. 251, 252; McDonald v. Bank U. S. 2 Pet. 107.

(b.) An execution is usually required as precedent to suit in equity.

The attachment was such an execution. Even if no condemnation could have been had under it; yet neither can an equitable interest in chattels or land be sold under a fi. fa. at common law. But the fi. fa. is held to bind them, and a bill lies in equity to sell them.

So here, the attachment was the most appropriate form of execution to bind an interest, in the nature of a credit or chose in action, as preliminary to a bill in equity, to have it applied to the satisfaction of the judgment.

(c.) To this preceeding the facts of the assignment, by way of mortgage to, and the possession of the evidences by Oliver, were as essential as to the sustaining of the attachment.

The untrue denials in the answers of Oliver equally misled the plaintiff to the abandonment of his remedy.

The fraud gives the plaintiff an equal equity now to call on the court to do him justice by subjecting the fund to his judg. ment, after paying Oliver his debt and expenses.

The points raised by the counsel for the appellees were as follows:

The theory of the bill is, that the appellant had, by the at. tachment on the judgment of himself and co-plaintiffs, entitled himself to condemnation of Goodwin's funds, alleged to be in

Deacon v. Oliver et al.

Oliver's hands as garnishee, and that Oliver, by his false and fraudulent answers, having deprived him of his legal right to such condemnation, equity will compel Oliver's estate to pay the money which, but for his unconscientious conduct, would have been recovered at law.

A right to condemnation, thén, as against Oliver, and the loss of that right through his fraud and falsehood, are essential, on the appellant's own showing, to his success.

Neither of these elements are found in the case, as it appears on pleadings or proofs.

1st. The attachment was issued against law, and would, at the trial, (which never came on, because the plaintiff's in the attachment discontinued it,) have been quashed, and is therefore to be regarded as void. Act of Maryland, 1715, chap. 40, $ 6; Waters & Caton, 1 Harris & McHenry, 407; Harden & Moores, 7 Harris & Johnson, 4.

2d. The attachment was irregular and void for another reason; that the act of 1715, (above referred to,) and adopted by the 100th rule of the Circuit Court of Maryland, authorized no such writ in the case of a resident defendait. Act of 1831, chap. 321.

3d. But conceding the attachment to have been regular, it could only take the "lands, tenements, goods, chattels, or credits,” of Goodwin, in Oliver's hands, (see Writ, 19, 20,) and there being none of these things in his hands, there was nothing to attach, and of course nothing to condemn. Houston & Nowland, 7 Gill & Johnson, 480; Meeker and Wilson, 1 Gallison, 419; Act of Maryland, 1810, chap. 160; Ford & Philpot, 5 Harris & Johnson, 312; Campbell & Morris, 3 Harris & McHemy, 535; 9 Cranch, 477.

4th. If there was any thing in Oliver's hand at the time of the attachment, it was only Goodwin's claim on the government of Mexico, for assistance rendered to Mina, in his attempt to revolutionize Mexico when a province of Spain, in violation of our neutrality acts; and such a claim has been decided by the Maryland courts, in the case of Goodwin's trustee against these appellees, to be of such a character that the law of Maryland will not recognize its existence, and of course no condemnation could be had of it.

5th. The discontinuance of the attachment was the voluntary act of the appellant; and as he was not bound by Oliver's answers to the interrogatories in attachment, but might have tested their truth by bringing the attachment to trial, bis failure to proceed at law gives him no right to come into equity.

6th. Oliver's answers were true. Goodwin's share in the Mexican Company was assigned to Oliver absolutely in 1825, Deacon v. Oliver et al.

and no interest therein remained in Goodwin at the time of the attachment. Goodwin's interest in his commissions and his claim on Mervin were not assigned to Oliver till May, 1829, nearly two years after the answers, and at the time of the ato tachment Oliver had no interest whatever in either of these claims.

Mr. Justice GRIER delivered the opinion of the court.

Without attempting to give a history of the facts of this case, as exhibited in the pleadings and proofs, or noticing all the objections of the equity of the bill, we think there are two of its charges or allegations, on which its whole equity rests, and which the complainant has failed to substanılate.

1. That there were in the hands of Robert Oliver at the time the attachment was laid, any chattels, rights, or credits of Lyde Goodwin, “which were bound by said attachment."

2. That Robert Oliver was guilty of falsehood or fraudulent concealment of facts, in his answers to the interrogatories proposed to him as garnishee in the attachment.

In 1816, and previous to his insolvency, Lyde Goodwin had become a shareholder in the Baltimore Mexican Company, to the extent of one. ninth part. This company had furnished means to General Mina to fit out a warlike expedition against Mexico, then a dependency of Spain. The expedition of Mina had failed, and he had perished with it. This transaction of the company was illegal, and punishable as a misdemeanor, with fine and imprisonment. The contract was therefore void in law, and could not be the foundation of any debt, nor could the stock thus created be treated in law as a thing of value; and from the uncertainty of its future prospects, its value in the market was little better. It was merely possible that Mexico, if successful in her struggle for independence, might, at some future day, assume the payment of the debts contracted by Mina, and if, as it was possible, or perhaps probable, that at some day still further in the future the payment may be obtained. Goodwin's title in this possibility or expectancy, or whatever it might be called, was supposed to have passed to Brown, his assignee, under the insolvent act. Afterwards, in 1824, Mexico having achieved her independence, passed a decree promising to acknowledge “ the debts that may be proven to have been contracted for the service of the nation by the Generals declared bene meritos de la patria," of whom Mina was one. This renewed the hopes of the company, that possibly something might be recovered hereafter on this pledge of the Mexican government; and Robert Oliver was appointed the attorney on the part of the company to prosecute their claim. Lyde Goodwin

Deacon v. 0liver et al.

being in actual want of the means of subsistence, persuaded Robert Oliver to advance him the sum of two thousand dollars, and take a transfer from Brown, his insolvent trustee of this claim, as security.

In this situation of affairs, the attachment of Baring, Brothers & Co. was served on Robert Oliver, as garnishee of Lyde Goodwin, in 1827. Now it is adnitted that Oliver was a creditor of Lyde Goodwin, and not a debtor. His power of attorney put him in possession of nothing which could be attached as the property of Goodwin. The insolvent assignment was supposed to have vested Goodwin's interest in this expectancy, in Brown. If it did not do so, as has since been decided, Oliver had no title to Goodwin's claim. And if it did, and if Oliver held it merely as a security for the sum advanced by him, the equitable assignment taken as such security, was his own; it was but an instrument to obtain satisfaction for his debt; it conferred nothing but a right in equity. Whether it was valid or invalid, absolute or defeasible, it did not constitute him a debtor of Lyde Goodwin, or put him in possession of any of his credits or effects, so as to subject him to an attachment as Goodwin's garnishee.. It was not till after the death of Robert Oliver, and more than ten years after the attachment of complainant was discontinued, that the United States made the Convention of April, 1839, with Mexico, under which Commissioners were appointed, before whom this claim of the Baltimore Company was proved, and acknowledged by Mexico as a just debt. Then for the first time, this uncertain claim or equity, assumed the form of a credit, and an existence as a legal chose in action. But in that character it never existed in the hands of Robert Oliver. If, at the time the attachment was served on him, the claim of Lyde Goodwin had existed as a debt due him by a citizen of Maryland, and Olivet held an equitable transfer either absolute or defeasible, it is abundantly evident that the proper person to be made garnishee in an attachment, would have been the debtor, not the equitable claimant of the debt. He has but an equity or a bare right, but whatever it is, it is his own, and his claim is in hostility both to the plaintiff and defendant in the attachment.

The whole foundation of the complainant's equity in this bill rests on the averment, that the interest of Lyde Goodwin, whatever it was, in this Mexican claim," was bound by the attachment laid in the hands of Robert Oliver, as garnishee.” The Merwin claim not having been assigned till after the attachment was withdrawn, need not be noticed. The decision of this point against the averment of the bill, would dispose of the case.

But as we think the charges made in the bill against Robert

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