^ 
 :im 
 
QlnrnFll ICaui i'rlynnl ICtbrary 
 
KF9026.R7T"""'™'"*'"-"'™^ 
 
 3 1924 020 198 465 
 
c^l 
 
 Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020198465 
 
A TREATISE 
 
 ON THE LAW OF 
 
 ATTACHMENTS, GARNISHMENTS 
 JUDGMENTS, AND EXECUTIONS. 
 
 TO WHICH IS APPENDED A COLLECTION OF LEADING AND 
 ILLUSTRATIVE CASES WITH NOTES. 
 
 FOE LAWYEES AND STUDENTS. 
 
 JOHN R.ROOD, 
 
 ^M«' 
 
 AN INSTRUCTOR IN LAW AT THE UNIVERSITY OF MICHIGAN, AUTHOR OF 
 
 "ROOD ON GARNISHMENT," "COMMON REMEDIAL 
 
 PROCESSES," ETC 
 
 Judicium quasi juris dictum. Juris effectus in execuiione consistit. 
 
 GEO. WAHR, Publisher and Bookseller, 
 
 ANN arbor, MICH. 
 
 1901. 
 
Copyright, 1901, 
 BY John R. Rood 
 
 «#^ 
 
 Ann Arbor Printing Co., 
 Printers and Binders 
 
PREFACE. 
 
 This book is composed of two parts. The first is a text, 
 divided into two hundred and twenty-five sections, tracing the 
 progress of attachment and garnishment causes from beginning 
 to end, and of all causes from verdict on. The second part is a 
 collection of decisions upon the matters treated in the text. 
 
 The text is not claimed to be exhaustive upon any point. To 
 make it so would defeat the very purpose for which it was written. 
 A tree is not complete without all its foliage, but the outline of 
 the branches cannot be clearly seen till the leaves have fallen. In 
 the present discussion, details have been similarly omitted so that 
 the more important matters can be seen. Anson on Contracts may 
 be said to cover all the matters treated in the elaborate works on 
 particular contracts, such as sales, agency, partnership, surety- 
 ship, deeds, mortgages, etc. In like manner, this manual is in- 
 tended to explain all the matters covered by the extensive treatises 
 on jurisdiction, judgments, res judicata, attachment, garnishment, 
 and executions. It is not designed to trespass on the field occu- 
 pied by any of these books, but to give what none of them do 
 or can — a clear outline of the whole, without that cloud of details 
 and the confusing review of inconsistent decisions upon them, 
 which the writer of a complete text must give. In this way, it 
 is hoped that a comprehensive view of broad fundamental prin- 
 ciples may be obtained, with a clear vision of the relations between 
 each part and all the others, and of the successive steps in each 
 proceeding from beginning to end. 
 
 While this text states only the most elementary rules, it is 
 believed that the man who has thoroughly mastered them can 
 more than cope with one who is burdened with a weight of half 
 digested matter. It is hoped that lawyers of long experience may 
 find this outline of use in suggesting questions which their mem- 
 
4 PREFACE. 
 
 ory unaided would not recall, and for which they have not time 
 to wade through a long treatise. To aid in this direction, the 
 whole has been very carefully indexed and supplied with a com- 
 plete table of cases cited. The selected cases support most of the 
 propositions in the text, and are cited under them. The promis- 
 cuous citation of decisions on minor matters is purposely avoided ; 
 but for the convenience of those who may wish to investigate any 
 question in detail, standard treatises are constantly cited in which 
 the decisions will be found reviewed at length. Besides these, sev- 
 eral hundred leading cases not found in the collection appended 
 to this treatise, are cited under the propositions which they estab- 
 lish. 
 
 Enough has been told of the plan and purpose of this volume. 
 It is not for me to judge of the success with which they have been 
 executed. But a fair critic will surely pardon me for saying that 
 the work has not been hastily done. Beginning with such advan- 
 tage as was acquired by writing books on parts of the present sub- 
 ject, I have given this book my attention and labor constantly since 
 I began teaching the subject here; and many changes have been 
 made because of the impression which certain methods of pre- 
 sentation were observed to make on the minds of the students. 
 
 John R. Rood. 
 
 Ann Arbor, Mich., Dec. 3, 1901. 
 
TABLE OF CONTENTS. 
 
 TABLE OF CONTENTS, pp. 5-8. 
 
 TABLE OF CASES REPRINTED AND CITED, pp. 9-32. 
 
 INTRODUCTION. 
 
 Outline of Law, § I. 
 
 Groups of Adjective Law, § 2. 
 
 What Works Treat of Each Group, § 3. 
 
 Scope of This Treatise, § 4. 
 
 Plan of Treatment, § 5. 
 
 1. NATURE AND ESSENTIALS OF JUDGMENTS, §§ 6-46. 
 
 Definitions and Distinctions, §§ 6-13. 
 
 Definitions, §§ 6, 7. 
 
 Orders Distinguished, § 8. 
 
 Neither Major nor Minor but Conclusion, § 9. 
 
 Opinion Distinguished, § 10. 
 
 Not a Contract, § 11. 
 
 Records Distinguished, §§ 12, 13. 
 Jurisdictional Requirements, §§ 14-46. 
 
 By the Court, § 14. 
 
 Upon the Matter Contained in the Record, § 15. 
 
 Facts Essential to Jurisdiction of the Thing, § 16. 
 
 Judgments in perso-nam on Substituted Service, § 17. 
 
 Necessity of Service to Validity of Judgments in rem, § 18. 
 
 Effect of Denial of Right to Hearing in Either Case, § 19. 
 
 Effect of Acts of the Parties or of Other Courts, § 20. 
 
 Effect of Irregularity, § 21. 
 
 How Jurisdictional Questions May be Raised, § 22. 
 
 True Criterion of Validity on Collateral Attack, §§ 23-30. 
 
 Whether Irregularities Should Avoid Collaterally, §§ 3I-4S. 
 
 Summary of Essentials of Judgments, § 46. 
 
 2. THE KINDS OF JUDGMENTS, § 47- 
 
 3. THE RECORD OF THE JUDGMENT, §§ 48-60. 
 
 Nature and Form, §§ 48-52. 
 
 Definition, § 48. 
 
 English Practice, § 49. 
 
 American Practice, §| 50-52. 
 Entering and Amending, § 53. 
 Essentials of the Record, §§ 54-56. 
 
 How the Question Arises — Cured in Same Court, § 54. 
 
 How far Presumptions Aid the Record, § 55. 
 
 What must. Always Appear, § 56. 
 Conclusiveness of the Record, §§ 57-60. 
 
 The Original Doctrine, § 57. 
 
 Modern Limitations of the Doctrine, § 58. 
 
 Does not Apply to Inferior Courts, § 59. 
 
 Records of Domestic Courts Conclusive on Collateral At- 
 tack, § 60. 
 
D TABLE OF CONTENTS. 
 
 4. VACATING, AMENDING, AND MODIFYING JUDGMENTS, §§ 
 
 61-66. 
 
 Review and Prospect, § 61. 
 
 Record and Judgment Distinguished, § 62. 
 
 What Courts May Vacate, Modify, and Amend Judgments, 
 
 §63. , ^ 
 
 What May be Vacated, Modified, &c., During the Term, 
 
 §64. 
 Common Law Remedies After the Term, § 65. 
 Modern Practice as to Relief after the Term, § 66. 
 
 5. THE EFFECT OF JUDGMENTS, §§67-89. 
 
 Review and Prospect, § 67. 
 Foundation and Origin of Estoppel by Judgments, §§ 68-71. 
 
 Why Judgments Estop, § 68. 
 
 Propositions Stated in the Duchess of Kingston's Case § 69. 
 
 The Three Essentials of an Estoppel — Plan of Treatment, 
 §70. 
 What Matters are Res Judicata, §§ 71-77. 
 
 Matters Classified and Distinguished, § 71. 
 
 What Causes of Action and What Defenses are Barred and 
 Why, §§72-74. 
 
 What Matters aside from the Qaims, Counterclaims, and 
 Defenses are Concluded, §§ 75-77. 
 Parties and Privies^ §§ 78-82. 
 
 Judgments in rem Distinguished, S 78. 
 
 Plan of Treatment, § 79. 
 
 In What Suits Judgments bind Parties and Privies, § 80. 
 
 Who are Parties, §81. 
 
 Who are Privies, § 82. 
 What is a SuMcient Judgment, §§ 83-89. 
 
 Plan of Treatment, § 83. 
 
 A Judgment, §84. 
 
 Of a Court of Competent Jurisdiction, § 85. 
 
 Final, § 86. 
 
 On the Merits, §87. 
 
 Subsisting, § 88. 
 
 In Personam, § 89. 
 
 6. SATISFACTION, §§90-225. 
 
 Plan of Treatment, § 90. 
 A. Processes to Obtain Satisfaction, §§ 91-212. 
 ' I. Nature of the Processes, §§ 91-104. 
 
 What Judgments need no Execution, § 91. 
 Enforcement by Coercion, § 92. 
 
 Execution by an Officer Under Process to the court, § 93. 
 Various Processes Used to Enforce Judgment, §§ 94-104. 
 Plan of Treatment, § 105. 
 2. Issuing the Processes, §§ 105-147. 
 
 1. What is Issuing the Process, § 106. 
 
 2. On What Demands the Processes May Issue, §§ 107-112. 
 
 Executions, § 107. 
 
 Attachments and Garnishments, §§ 108-112. 
 
 3. At What Stage of the Case the Processes May be Is- 
 
 sued, §§ 113-119. 
 
 Garnishments, § 113. 
 Attachments, § 114. 
 Executions, §§115-119. 
 
 4. Effect of Use of One Process on Right to Another, { 120. 
 
TABLE OF CONTENTS. / 
 
 6. SATISFACTION, Continued, §§90-225. 
 
 5. Who May Demand and Control the Processes, §§ 121-125. 
 
 Every Person Owning a Claim, § 121. 
 
 Only Persons Interested in the Claim, § 122. 
 
 Writs Issued on Others' Orders are Valid, § 123. 
 
 Remedies of Persons Injured, § 124. 
 
 Forjn of Demand and Proof of Authority, § 125. 
 
 6. Against Whom the Processes May be Issued, §§ 126-129. 
 
 Parties only, § 126. 
 
 All Defendants, § 127. 
 
 Any Person May be Garnished, § 128. 
 
 Limitations upon the Right to Process, § 129. 
 
 7. What Courts and Officers May Issue the Processes, 
 
 §§ 130-133. 
 
 Every Court May Enforce its Judgment, § 130. 
 No Court Can Issue Process on Judgments of 
 
 Other Courts, § 131. 
 When Process from Other Courts is Authorized, 
 
 ^ § 132. 
 
 Only by the Proper Officer, § 133. 
 
 8. Form and Essentials of the Papers. §§ 134-147. 
 
 Attachment and Garnishment Affidavits, §§ 134- 
 
 139. 
 Attachment Bonds, § 140. 
 
 Forms and Essentials of the Processes, §§ 141- 
 147- 
 3. Execution of the Processes, §§ 148-212. 
 Plan of Treatment, § 148. 
 
 1. Legislature's Power to Change the Remedy, § 149. 
 
 2. Power of the Court and Judge to Control the Processes, 
 
 §150. 
 
 3. Officer s Rights and Liabilities, §§ 151-160. 
 
 His Right to Protection, §§ 151-154. 
 Property Rights of the Officer, § 155. 
 Liability of the Officer, §§ 156-160. 
 
 4. Where the Processes May be Executed, § 161. 
 
 5. When the Processes May be Executed, §§ 162-163. 
 
 How Early, § 162. 
 How Late, § 163. 
 
 6. Who May Execute the Processes, § 164. 
 
 7-8. What May Be Taken Under the Processes, §§ 165-180. 
 Plan of Treatment, § 165. 
 Comparative Scope of the Processes, § 166. 
 Matters Peculiar to Garnishment, §§ 167-170. 
 Matters Applicable to All Processes. §§ I7l-l8a 
 
 9. The Levy and Service, §§ 181-188. 
 
 Matters Under this Head Reviewed, § 181. 
 The Levy, §§ 182-186. 
 
 Attachment and Garnishment Summonses, § 187. 
 Notice of Attachment, Garnishment, and Execu- 
 tion, § 188. 
 10. Lien Under Judgments, Attachments, Garnishments, and 
 Executions, §§ 189-195. 
 
 When the Right Begins. §§ 189-192. 
 Nature of the Lien or Right, §§ 193-195. 
 ri. How Lien Lost After Levy, §§ 196-207. 
 
 By Order of Court in Proceedings to Try, §§ 196- 
 
 201. 
 Matters which Abate the Lien, §§ 202-207. 
 
O TABLE OF CONTENTS. 
 
 6. SATISFACTION, Continued, §§90-225. 
 
 12. Foreclosure of the Lien, §§ 208-212. 
 
 Of What it Consists, §§ 208-210. 
 Effect of Defects, §211. 
 The Officer's Return, §§ 212. 
 
 B. What Constitutes a Satisfaction, §§ 213-220. 
 
 Review and Prospect, § 213. 
 
 By the Use of the Processes, § 214. 
 
 By Setting Off Other Judgments, § 215. 
 
 By Recovering Another Judgment, § 216. 
 
 By Lapse of Time, § 217. 
 
 By Payment, §§ 218-220. 
 
 C. Rights After Satisfaction, §§ 221-225. 
 
 Proof and Entry of Satisfaction, § 221. 
 
 Appeal After Satisfaction, § 222. 
 
 Restitution on Reversal, §§ 223. 
 
 Protection of Third Parties when Judgment is Reversed, 
 
 § 224. 
 Vacating, False Satisfaction, § 225. 
 
 INDEX pp. 515-549. 
 
TABLE OF CASES REPRINTED AND CITED. 
 
 Titles in caps are cases reported; others, cases cited. 
 Figures before §§ refer to pp. of cases ; after, to §§ of text. 
 
 Abell V. Simon, 49 Md. 318 86 
 
 Abercrombie v. Marshall, 2 Bay 
 
 90 3SI 
 
 ABERCROMBIE'S ADM'R v. 
 
 CHANDLER, 9 Ala. 623 184 
 
 Cited 
 
 312, 328, §§ IIS, 147, 152, 157, 221 
 Ackroyd v. Ackrqy^^ll Abbott 
 
 Prac. 345 . . . .' 162 
 
 ACTON y. KNOWLES, 14 Ohio 
 
 St. 18 464 
 
 Cited §§ 163, 204, 205 
 
 Adams v. Broughton, 2 Strange 
 
 1078 323 
 
 Adams v. Drake, 11 Cush. 504. .. .496 
 
 Adams v. Dyer, 8 Johns. 350 470 
 
 Adams v. Hubbard, 30 Mich. 104.315 
 Adams v. Johnson, 72 Miss. 896. § no 
 Adams v. Paige, 7 Pick. 542. . . .§ 195 
 Adams y. The Saratoga & Wash. 
 
 R. R. Co., 10 N. Y. 328 99 
 
 Adams v. Scott, 104 Mass. 164. ..252 
 ADAMS V. SMALLWOOD, 8 
 
 Jones Law ^58 199 
 
 Cited §§ 120, 200 
 
 Adams v. Smith, 5 Cowen 280.506, 513 
 Adamson v. Jarvis, 4 Bingh. R. 
 
 66 322 
 
 Aderholt v. Smith, 83 Ala. 486. .§ 192 
 Adler v. Roth, 5 Fed. 895. . .456, § 183 
 Ager V. Murray, 105 U. S. 126. .§ 173 
 Ah Kle V. McLean, 2 Idaho 812. § 12 
 Aicardi v. Robbins, 41 Ala. 541. .§ 219 
 Alanson v. Butler, Siderfin 330... 214 
 
 Albee y. Ward, 8 Mass. 86 184 
 
 Albers v. Whitney, l Story 310. .§ 13 
 ALBRECHT v. LONG, 25 Minn. 
 
 163 333 
 
 Cited . .311, 359, 360, §§157. 158, 191 
 ALBRECHT v LONG, 27 Minn. 
 
 81 336 
 
 Cited §158 
 
 Albrecht v. Treitschke, 17 Neb. 
 
 20s n 
 
 Alexander v. State, 42 Ark. 41. .§ 153 
 Allaire t. Allaire, 8 Vroom 312. . 71 
 
 Allen Y. Clark, 36 Wis. loi 356 
 
 Allen T. Crary, 10 Wend. 349. . . .209 
 
 ALLEN V. HALL, 5 Mete. 263.. 140 
 
 Cited. .370, 434, 465, 484, §§ 167, 
 
 170, 192, 203, 211 
 Allen V. Holden, 9 Mass. 133 
 
 490, 493, 496 
 
 Allen V. Megguire, 15 Mass. 490. . 
 
 371, 388, 143 
 
 Allen V. Martin, 10 Wend. .300. . . 86 
 
 Allen V. Seaver, 38 Vt. 673 § 224 
 
 Allen V. Trimble, 4 Bibb 21 347 
 
 Allen V. Watt, 79 111. 284. 407 
 
 Allinson v. Chicago, B. & Q. Ry., 
 
 76 Iowa 209 § 126 
 
 Almy V. Piatt, 16 Wis. 169 463 
 
 American Bank v. Rollins, 99 
 
 Mass. 313 407 
 
 American Bank v. Snow, 9 R. I. 
 
 II ■■ ....407 
 
 American Ex. Bank v. Moxley, 
 
 50 111. App. 314 § 12 
 
 Ames V. Webbers, 8 Wend. 545 . . 183 
 Anderson v. Fowler, 8 Ark. 388. §202 
 Anderson v. Jehett, 14 La. An. 
 
 614 §133 
 
 Anderson v. Taylor, 74 Tenn. 382.§ 191 
 Andress v. Roberts, 18 Ala. 387. .457 
 Andrews v. Gierke, i Garth. 25 . . 74 
 Andrews v. Ludlow, 5 Pick. 28.. 378 
 ANDREWS V. MORSE, 12 
 
 Conn. 444 224 
 
 Cited §§ 122, 218 
 
 Andrews v. Smith, 9 Wend. 53. .§ 73 
 
 Angier v. Ash, 26 N. H. 99 87 
 
 Ankeny v. MofFett, 37 Minn. 109.496 
 ANONYMOUS, Croke Eliz. 174. 435 
 
 Cited § 189, 194 
 
 Anonymous, Lofft 372 86 
 
 Arberry v. Nowland, 2 J.J. Marsh. 
 
 421 457 
 
 Archer v. Noble, 3 Me. 418 327 
 
 Arnett v. Cloud, 2 Ga. 53 490 
 
 Arnold v. Elwell, 13 Me. 261 378 
 
 Arthurs v. Villere, 43 La. An.4i4.§ 196 
 
 Atkins V. Sawyer, i Pick. 353 232 
 
 Atkinson v. James, 96 Ala. 214. .§ no 
 Audley V. Halsey, Cro. Car. 149.. 190 
 Ault V. Zehering, 38 Ind. 429... § 85 
 Averill v. Williams, i Denio 502.322 
 Avery v. Halsey, 14 Pick. 174. ...322 
 
10 
 
 TABLE OF CASES REPRINTED AND CITED. 
 Titles in caps are cases reported; others, cases cited. 
 
 AVERY V. MONROE, 172 Mass. • 
 
 132 378 
 
 Cited § 169 
 
 Ayer v. Aden, Yelverton 44 211 
 
 Bachman v. Sulzbaciier, S S. Car. 
 
 S8 §191 
 
 BACKALAN v. LITTLEFIELD, 
 
 64 N. C. 233 288 
 
 BACON V. CROPSEY, 3 Selden 
 19s 181 
 
 Cited 328, §§iis, 147 
 
 Bagley v. White, 4 Pick. 39s 332 
 
 Bailey v. Adams, 14 Wend. 201.. 208 
 Bailey v. Childs, 46 Ohio St. 557. § 164 
 Bailey v. Hester, lOi N. Car. 538 
 
 §§ 121, 196 
 
 Bailey v. Winn, loi Mo. 649. ..§130 
 BAILEY V. WRIGHT, 39 Mich. 
 
 96 427 
 
 Cited §§ 152, 178, 186 
 
 Bain v. Lyie, 68 Pa. St. 60. .480,481 
 Baker v. Beers, 64 N. H. 102. . . .§ 19s 
 
 Baker v. King, 2 Or. 254 271 
 
 BALCH V. SHAW, 7 Cush. 282. 81 
 
 Cited 307, §53 
 
 Baldwin v. Prouty, 13 Johns. 430. § 13 
 Baldwin v. Talbot, 46 Mich. 19... 381 
 Ballard v. Davis, 3 J. J.Marsh.6s6.l0S 
 Baltimore & O. Ry. Co. v. Fitzpat- 
 
 rick, 36 Md. 619 499 
 
 Bamberger v. Voorhees, 99 Ala. 
 
 292 §192 
 
 Bank v. McLeod, 65 Iowa 666. ..415 
 Bank of Genesee v. Spencer, 18 
 
 N. Y. ISO 240 
 
 BANK OF MO. v. MATSON, 
 
 26 Mo. 243 290 
 
 Cited .....§ 162 
 
 Bank of N. A. v. Wheeler, 28 
 
 Conn. 433 § 88 
 
 Bank of Northwest v. Taylor, 16 
 
 Wis. 638 i6s,i66 
 
 Bank of Salina v. Abbott, 3 Den-. 
 
 181 49S 
 
 Den, ex dem. Tayloe, v. Fen, i 
 
 Dev. 29s 211 
 
 Bank of Orange Co. v. Wakeman, 
 
 I Cowen 46 212 
 
 BANK OF PENN. v. WINGER, 
 
 I Rawle 29s 499 
 
 Cited 217, § 214 
 
 Bank of Rome v. Curtiss, i Hill 
 
 275 34.-; 
 
 Bank of U. S. v. Donnally, 8 Pet. 
 
 361 n 
 
 Banks v. Evans, 10 S. & M. 35. .§ 204 
 Banning v. Sibley, 3 Minn. 389. .§ 169 
 Barber v. Howd, 85 Mich. 221 ... § 208 
 Barber v. Reynolds, 44 Cal. 5x9. ..502 
 Barber v. Robeson, 15 N.J. L. 17.157 
 Barden v. McKinnie, 4 Hawks, 279 
 
 206 
 
 Barefield v. Bryan, 8 Ga. 463 § 13 
 
 Barhydt v. Valk, 12 Wend. I45- ■§ 159 
 Barker v. Mathews, i Denio. 335 . § 19S 
 Barnard v. Barnard, 119 111. 92.. yi 
 
 Barnes v. Baker, Minor 373 483 
 
 Barnes v. Barnes, 8 Jones L. 366.302 
 Barnes v. Hayes, i Swan. 303.... 457 
 
 Barnett v. State, I Wis. 156 5 
 
 Barnett v. White, 3 N. H. 210.. § 159 
 Barney v. McCarty, 15 Iowa 510.458 
 
 Barney v. Little, 15 Iowa 527 458 
 
 Barringer v. Boyden, 7 Jones Law 
 
 187 496 
 
 Barron v. Arnold, 16 R. I. 22. . .§ 173 
 Barrow v. McDonald, 12 La. An. 
 
 no 162 
 
 Barton v. Spencer, 3 Okl. 270.463, §192 
 Bassett v. Garthwaite, 22 Tex. 230.396 
 Batdorff v. Focht, 8 Wr. 195.480,481 
 BATES V. C, M. & ST. P. RY. 
 
 CO., 60 Wis. 296 245 
 
 Cited 370 
 
 Baumgardner v. Dowagiac Mfg. 
 
 Co., so Minn. 381 158 
 
 Beach v. Botsford, i Doug. 199. .315 
 
 Beals V. Allen, 18 Johns. 363 190 
 
 Bean v. Parker, 17 Mass. 591 .... 87 
 Beard v. Millikan, 68 Ind. 231.. §218 
 
 Beck V. Cole, 16 Wis. 95 251 
 
 Beekman v. Lansing, 3 Wend. 446.206 
 Belknap v. Gibbons, 13 Mete. 471.237 
 
 Bell v. Olmstead, 18 Wis. 75 178 
 
 Bell V. Shafer. 58 Wis. 223. §§ 164, 184 
 
 Bell V. Williams, i Head 229 85 
 
 Benedict v. Heineberg, 43 Vt. 231.243 
 Benjamin v. Smith, 4 Wend. 332.465 
 
 Benson v. Smith, 42 Me. 414 362 
 
 Bentley v. Hore, i Lev. 86 86 
 
 Berles v. Adsit, 102 Mich. 495. .§ 128 
 Berry Bros. v. Nelson, Davis & 
 
 Co., "jj Texas 191 76 
 
 Berry v. Riley, 2 Barb. Sup. C. R. 
 
 307 183 
 
 Belts v. Gibbons, 2 Ad. & El. 57. .322 
 Bevan v. Hayden, 13 Iowa 122. .. .401 
 Bicknell v. Trickey, 34 Me. 273. .§ 183 
 Bigelow V. Andress, 31 111. 322... 
 
 463, § 192 
 
 Bigelow V. Forrest, 9 Wall. 339. . 47 
 Bigelow V. Provost, 5 Hill 566... 490 
 Bigelow V. Stearns, 19 Johns. 39. 97 
 Bigelow V. Willson, i Pick. 485 .. § 195 
 
TABLE OF CASES REPRINTED AND CITED. 
 Figures before §§ refer to pp. of cases ; after, to §§ of t*xt. 
 
 11 
 
 Billings V. Russell, 23 Pa. St. 189 
 
 • §§ 134. 140 
 
 Bird V. Perkins, 33 Mich. 28. . . .§ 132 
 
 Bisbee v. Hall, 3 Ohio 449 483 
 
 ■ Bishop V. Young, 17 Wis. 47 389 
 
 Bissell V. Briggs, 9 Mass. 462 59 
 
 Black V. Drake, 2 Colo. 330 499 
 
 Blackburn v. State, 3 Head 6go. . 13 
 
 Blackham's Case, i Salk. 290 120 
 
 Blackman v. Wheaton, 13 Minn. 
 
 326 , . 179 
 
 Blackstone v. Buttermore, 53 Pa. 
 
 St. 266 223 
 
 Blaikie v. Griswold, 10 Wis. 299. § 7 
 Blaine v. Carter, 4 Cranch 328. . . 184 
 
 Blair v. Williams, 4 Litt. 65 301 
 
 Blaisdell v. Sheafe, S N. H. 201. § 163 
 
 Blake v. Hubbard, 45 Mich, i 390 
 
 Blake v. Shaw, 7 Mass. 503. ..-§193 
 Blake v. Williams, 6 Pick. 286.. 76 
 Blanchard v. Goss, 2 N. H. 491... 234 
 
 BUss V. Sail, 9 Johns. 132 206 
 
 Bliven v. Bleakley, 23 How. Prac. 
 
 N. Y. 124 217 
 
 Blood V. Bates, 31 Vt. 150 § 7 
 
 Bloom V. Burdick, i Hill 130 97 
 
 Bloom V. Burdick, i Hill 138. ... 98 
 
 Blount V. Wells, 53 Ga. 282 § 133 
 
 Blum V. Wettermark, 58 Tex. 123. § 64 
 BIystone v. Blystone, 31 Pa. St. 
 
 373 § 7 
 
 Board of Comm'rs of Jefferson 
 
 Co. V. Swain, 5 Kan. 376 165 
 
 Boarman v. Patterson, i Gill 372.170 
 Bodurtha v. Goodrich, 3 Gray 508 94 
 
 Bogart V. Dart, 23 Hun. 393 165 
 
 Bogert V. Morse, i Corns. 377. ..404 
 Boileau v. Rutlin, 2 Exch. 663. .. .131 
 Boland v. Benson, 34 Wis. 387. .§ 13 
 Bolles V. Bowen, 43 N. H. 124. .. 87 
 
 Bolton V. Jacks, 6 Rob. 166 100 
 
 Bond V. Ward, 7 Mass. 123 
 
 319, 322, § 177 
 
 Bond V. Willett, 31 N. Y. 102. ...482 
 
 Bond V. Wilson, 8 Kan. 228 83 
 
 BONES V. AIKEN, 33 Iowa 334.494 
 
 Cited § 220 
 
 Bonesteel v. Todd, 9 Mich. 371. .§ 89 
 Bonnell v. Bowman, 33 111. 460.. § 158 
 
 Boothe V. Estes, 16 Ark. 104 §135 
 
 Booth and Rycraft, In re, 3 Wis. 
 
 137 32 
 
 Boomer v. Laine, 10 Wend. 323.. 86 
 Borden v. Fitch, 13 Johns. 121. .. . 
 
 60, 91, 94 
 
 Boren v. M'Gehee, 6 Porter 432. .490 
 BOSTWICK V. BENEDICT, 4 
 
 S. Dak. 414 271 
 
 Cited 328, § 131 
 
 Boswell's Lessee v. Otis, 9 How. 
 
 336 53 
 
 Botsford V. Simmons, 32 Mich. 
 
 357 §§ 112, 167, 170 
 
 Bott V. Burnell, 11 Mass. 163 87 
 
 BOUCHER V. WISEMAN, Cro. 
 
 Eliz. 440 332 
 
 Cited 360, §§ 138, 189, 194 
 
 Bouton V. Lord, 10 Ohio St. 433.. 469 
 
 Bowen v. Bell, 20 John. 338 268 
 
 Bowen v. Port Huron E. & T. 
 
 Co., 109 Iowa 255 201 
 
 Bowler v. Huston, 30 Grat. 266. . 85 
 Boyer v. Bolender, 124 Pa. St. 
 
 324 496 
 
 Brackett v. Morton, 4 Conn. 317.499 
 Bradford v. Patterson, i A. K. 
 
 Marsh. 464 103 
 
 Bradstreet v. Neptune Ins. Co., 3 
 
 Sumn. 600 43 
 
 Brainard v. Simmons, 67 la. 646.. 403 
 Brandon Iron Co. v. Gleason, 24 
 
 Vt. 228 487 
 
 Brandt's App., 16 Pa. St.343,27i...§ 132 
 Breading v. Siegworth, 5 Casey 
 
 396 122 
 
 Brewer v. Ainsworth, 32 Ga. 487.. 168 
 Brewer v. Pitkin, 11 Pick. 298. ..143 
 Brewer v. Sibley, 13 Mete. 173... 278 
 Brewster v. Vale, 20 N. J. L. 36. § 133 
 BRICE V. CARR, 13 Iowa 399. . .201 
 
 Cited 488, 489, §§ 74, 120 
 
 Bridgeport Savings Bank v. El- 
 dredge, 28 Conn. 336 85, loi 
 
 Bridges v. Perry, 14 Vt. 262 330 
 
 Briggs V. Wardell, 10 Mass. 336. .184 
 BRIGHTMAN & CO. v. MERRI- 
 
 WETHER, 121 Ala. 602 8 
 
 Cited 81, 177, 181. § 107 
 
 Brine v. Ins. Co., 96 U. S. 627. . 70 
 Brinegar v. Griffin. 2 La. An. 134.162 
 Bristol V. Burt, 7 Johns. R. 234. .209 
 Broadstreet v. Clark, 65 Iowa 670. 7y 
 BRONSON V. SCHULTEN, 14 
 
 Otto 410 102 
 
 Cited SOS, §§63,66 
 
 Brooks V. Cook, 8 Mass. 246 411 
 
 Brooks V. R. R. Co., 102 U.S. 107.103 
 Brown v. Aspden, 14 How. 25... 103 
 Brown v. Barngrover, 82 Iowa 
 
 204 § SI 
 
 Brown v. Davis, 9 N. H. 76 87 
 
 BROWN V. DAVIS, 18 Vt. 211. .370 
 
 Cited §169 
 
 Brown v. Harris, 2 G. Greene 503 . 474 
 Brown v. Hathaway, 10 Minn. 
 
 303 12 
 
 Brown v. Hoy, 16 N. J. L. 157. . .158 
 Brown v. Moseley, 11 S.& M. 334. 326 
 
TABLE OF CASES REPRINTED AND CITED. 
 Titles in caps are cases reported; others, cases cited. 
 
 Brown v. Nichols, 42 N. Y.26.§§ 89, 94 
 Brown v. Somerville, 8 Md. 444. .203 
 Brown v. Tuppeny, 24 Kan. 29... 475 
 Brown v. Wiley, 107 Ga. 85. .. .§ 128 
 Browning v. Hanford, 5 Hill S8S, 
 
 7 Id. 120, 5 Uenio 586 .151 
 
 Brunott v. M'Kee, 6 W. & S. S13.327 
 
 Brush V. Lee, 36 N. Y. 49 § 133 
 
 Bryan v. Bridge, 5 Tex. 137 287 
 
 Bryant v. Fairfield, 51 Me. 149. .§223 
 Bryant v. Osgood, 52 N. H. 182. § 183 
 BUCHANAN v. ALEXANDER, 
 
 4 Howard 20 265 
 
 Cited 37, § 174 
 
 Buck V. Colbath, 3 Wall .334. 325, §152 
 Buehler v. De Lemos, 84 Mich. 
 
 SS4 169 
 
 Buffham v. Racine, 26 Wis. 449. .251 
 BuUard v. McArdle, 98 Cal. 355. § 118 
 Bunce v. Reed, 16 Barb. 347. ... 50 
 Bunn V. Thomas, 2 Johns. 190. . . .269 
 Burk V. Barnard, 4 Johns. 309. . . .269 
 BURK V. CAMPBELL, 15 Johns. 
 
 456 343 
 
 Cited 359, §§ 157, 212 
 
 Burke v. Laforge, 12 Cal. 403.. § 10 
 Burkhardt v. Sanford, 7 How. 
 
 Pr. 329 § 192 
 
 Burks V. Bass, 4 Bibb. 338 482 
 
 Burleigh v. Piper, 51 Iowa 649. .§177 
 Burlingame v. Bell, 16 Mass. 318. . 
 
 141, 371 
 
 Burnaby's Case, I Strange 653.472, 488 
 Burnett v. Crandall, 63 Mo. 410. §218 
 Burnham v. Dickson, 5 Okl. 112. . 
 
 4S6, §§ 164, 191 
 
 BURNHAM V. DOOLITTLE, 14 
 
 Neb. 214 273 
 
 Cited 370, §§ 137, 139 
 
 Burnham v. Fond du Lac, 15 Wis. 
 
 193 1 251 
 
 Burnham v. Ramge, 47 Neb. 175. § 200 
 Burnheimer v. Hart, 27 Iowa 19. § 74 
 Burrill v. Letson, 2 Speers 378. ..407 
 BURTON V. WILKINSON, 18 
 
 Vermont 186 316 
 
 Cited ..360, 427, §§ 152, 159, 160. 178 
 
 Bush V. Collins, 7 Johns. 549 215 
 
 Bushey v. Raths, 45 Mich. 181... 479 
 Butler V. Maynard, 11 Wend. 548.465 
 Butts V. Armor, 164 Pa. St. 73. . .§ 13 
 Butts V. Francis, 4 Conn. 424. ... 85 
 Buxton V. Home, i Show. 174. . . .214 
 Bybee v. Ashby, 2 Gilm. 151.280, §164 
 
 Byler y. Jones, 79 Mo. 261 414 
 
 Bynum v. Barefoot, 75 N. Car. 
 
 576 §218 
 
 Cadwell V. Dullaghan, 74 Iowa 
 
 239 § 13 
 
 Calhoun v. Snider, 6 Bin. 138 443 
 
 Callen v. Ellison, 13 Ohio St. 446 93 
 Camberford v. Hall, 3 McCord 
 
 345 §140 
 
 Cameron v. Logan, 8 Iowa 434. . . .514 
 Cameron v. McRoberts, 3 Wheat. 
 
 591 105 
 
 Cameron v. Reynolds, I Cowper 
 
 403 331 
 
 Camp V. Hilliard. 58 N. H. 42 477 
 
 Campbell v. Ayres, 6 Iowa 339. .§ 51 
 Campbell v. Brown, 6 How. 106. . 93 
 Campbell v. Gumming, 2 Burrows 
 
 1187 28^ 
 
 Campbell v. Pope, 96 Mo. 468 496 
 
 Campbell v. Webster, 15 Gray 28. 87 
 Canada v. Southwick, 16 Pick 
 
 5S6 §158 
 
 Caperton y. McCorkle, 5 Grattan 
 
 177 434,477 
 
 Carey v. State, 34 Ind. 105 32& 
 
 Garland v. Cunningham, $7 Pa. 
 
 St. 228 156, 157 
 
 Carleton v. Bickford, 13 Gray 59 f 85 
 
 Carlisle v. Soule, 44 Vt. 265 § 153. 
 
 Carman v. Rosevelt, 13 Johns. 97.211 
 Carpenter v. King, 9 Mete. 511. .§ 74 
 Carpenter v. Stillwell, i Kernan 61 . 188 
 Carr v. Com. Bank, 16 Wis. 50. . 85 
 Carrier v. Esbaugh, 70 Pa. St. 
 
 239 §159- 
 
 Carson v. Allen, 2 Pin. 457 251 
 
 Carson v. Ry. Co., 88 Tenn. 646. . 77 
 
 Carson v. Walker, 16 Mo. 68 184 
 
 Carter v. Koshland, 13 Ore. 615. .§ 192- 
 CARTER V. STATE, 42 La. An. 
 
 927 ;... 261 
 
 Carty v. Fenstemaker, 14 Ohio 
 
 State 457 275 
 
 Gary v. Hewitt, 26 Mich. 228 381 
 
 Case V. State, S Ind. i 13: 
 
 Casement v. Ringgold, 28 Cal. 
 
 335 § 13. 
 
 Catlin V. Jackson, 8 Johns. 520. ..211 
 Cattlin V. Kernot, 3 Com. Banch 
 
 N. S. 796 480 
 
 CAVENAUGH v. JAKEWAY, 
 
 I Walker's Chancery 344 487 
 
 Cited 505, §211 
 
 Cavendish's Case, Dyer Eliz. 224b 
 
 139, 436 
 
 Cemmill v. Butler, 4 Barr 232 122 
 
 Chace v. Trafford, 116 Mass. 532.173 
 Chaffin V. Crutcher, 2 Sneed 360. .346 
 Chambers & McKee Glass Co. v. 
 
 Roberts, 4 App. Div. 20 229 
 
 Chandler v. Becknell, 4 Cowen 49.26^ 
 
TABLE OF CASES REPRINTED AND CITED. 
 Figures before §§ refer to pp. of cases ; after, to §§ of text. 
 
 13 
 
 Chandler v. Higgins, 109 111. 602. .496 
 Chapman v. Gumming, 17 N. J. L. 
 
 II 8s 
 
 Chapter 6, In re, 8 S. Dak. 274. .§ 10 
 Charles v. Haskins, 11 Iowa 329. .327 
 Charron v. Boswell, 18 Gratt. 216.456 
 
 Chase v. DeWolf, 69 111. 47 §196 
 
 Chase v. Foster, 9 Iowa 429 474 
 
 Chase v. Whitten, 62 Minn. 498. .§ 13 
 Cheddick v. Marsh, 21 N. J. L. 
 
 463 158 
 
 Cheesebrough v. Millard, i Johns. 
 
 Ch. 409 502 
 
 Chemung Canal Bank v. Judson, 
 
 8 N. Y. 254 99 
 
 Cheshire Nat. Bank v. Jewett, 
 
 119 Mass. 241 § 177 
 
 Cheshire Prov. Inst. v. Johnston, 
 
 Fed. Cas. No. 2659 220 
 
 Chicago V. Hasley, 25 111. 485 
 
 255, 259, 260 
 
 Chicago, Burl. &c. R. R. v. Moore, 
 
 31 Neb. 629 77 
 
 CHICAGO, R. I. & PAC. RY. 
 
 CO. V. STURM, 174 U. S. 710. 71 
 
 Cited 78,144,353,370 
 
 Chicago, R. I. & P. Ry. Co. v. 
 
 Sturm, 5 Kan. App. 427 72 
 
 Chicago, R. I. & P. Ry. Co. v. 
 
 Sturm, 58 Kan. 818 72 
 
 Child V. Eureka P. W., 45 N. H. 
 
 547 § 84 
 
 Childs V. Carlstein Co., 76 Fed. 
 
 Rep. 86 463 
 
 Childs V. Digby, 24 Pa. St. 23 249 
 
 Chipman, Matter of, 14 Johns. 217. 165 
 Chittenden v. Hobbs, 9 Iowa 417.165 
 Christian v. Williams, III Mo. 435.414 
 Christopher 'v. Stockholm, 5 Wend. 
 
 36 233 
 
 City of Look under the 
 
 name of the city. City of Chicago 
 
 V. Halsey reads: Chicago v. Hal- 
 
 sey. 
 Claiborne v. Crockett, Meigs 607.479 
 
 Clap V. Bell, 4 Mass. 99 474 
 
 Clark V. Brewer, 6 Gray 320 250 
 
 Clark V. Bryan, 16 Md. 171 93 
 
 Clark V. Hallock, 16 Wend. 607. .209 
 Clark V. Holmes, i Doug. 390. ... 25 
 Clark V. Manns, i Dowl. P. C. 
 
 656 310 
 
 Clark V. Pinney, 6 Cow. 298 433 
 
 Clark V. Shaw, 79 Ind. 164 87 
 
 Clark V. Wilson, 3 Wash. C. C. 
 
 560 157 
 
 CLARKE V. MILLER, 18 Barb. 
 
 Sup. 269 267 
 
 Cited 484, 505, § 123, 131 
 
 CLARKSON V. WHITE, 4 J. J. 
 
 Marshall 529 226 
 
 Cited 328 
 
 Clay V. Clay, 7 Tex. 251 80 
 
 CLERK V. WITHERS, i Salkeld 
 
 322 191 
 
 Cited 195,210,211,212,216,350, 
 
 351, 434,488, §119 
 Cleveland v. Spencer, 50 S. W. 
 
 405 §126 
 
 Clise V. Freeborne, 27 Iowa 280. .203 
 Clodfelter v. Cox, i Sneed 330. ..408 
 Closson V. Morrison, 47 N.H.,485.414 
 
 Cloud V. Wiley, 29 Ark. 80 § 88 
 
 Clough V. Buck, 6 Neb. 343 § 224 
 
 Clough V. Monroe, 34 N. H. 381 . . 87 
 Clues V. Bathurst, Ca. Temp. 
 
 Hard. 12 120 
 
 Clute V. Clute, 4 Den. 241 8 
 
 Coburn v. Currens, i Bush 242. .202 
 
 Cody V. Cody, 98 Wis. 445 37 
 
 Coe V. Hinkley, 109 Mich. 608... 201 
 
 Coffee V. Tevis, 17 Cal. 239 496 
 
 Coffin V. Ray, i Mete. 212 § 192 
 
 Cohen V. Gamble, 71 Miss. 478. ..165 
 Cohn V. Sheuer, 115 Pa. St. 178.. § 13 
 Cohnen v. S weenie, 105 Mich. 643.412 
 
 Coit V. Haven, 30 Conn. 190 92 
 
 CoUais V. McLeod, 8 Ired. L. 221.365 
 
 Collins V. Burns, 16 Colo. 7 479 
 
 Collins V. Terrell, 2 S. & M. 383. . 
 
 351, 352 
 
 COLYER V. HIGGINS, i Duvall 
 
 6 346 
 
 Cited 359, 360, § 156, 163 
 
 Commissioners v. Barry, 66 111. 496.. 280 
 Commonwealth v. Contner, 18 Pa. 
 
 St. 439 346, § 204 
 
 COMMONWEALTH v. MA- 
 GEE, 8 Penn St. 240 307 
 
 Cited ..312, 328, 359, 434, 454, 464 
 
 §§ 53, 151, 157, 196 
 Commonwealth v. Miller's Adm., 
 
 8 S. & R. 452 502 
 
 Commonwealth v. Stockton, 5 T. 
 
 B. Monroe 192 327 
 
 Conklin V. Harris, 5 Ala. 213.... 164 
 Conkling v. Ridgeley, 112 111. 36. . 5 
 Conley v. Redwine, 109 Ga. 640. .§ 211 
 CONN v. CALDWELL, i Gilm. 
 
 531 425 
 
 Cited 464, §§ 172, 204 
 
 Connah v. Hale, 23 Wend. 462. ..208 
 
 Cook v. Darling, 18 Pick. 393 92 
 
 Cooley V. Brayton, 16 Iowa 10. . . .180 
 Cooney v. Wade, 23 Tenn. 444. .§219 
 COOPER V. BIGALOW, i Cow- 
 en S6 488 
 
 Cited 472, §§214,215 
 
14 
 
 TABLE OF CASES REPRINTED AND CITED. 
 Titles in caps are cases reported ; others, cases cited. 
 
 Cooper V. Bigalow, i Cowen 206. .489 
 COOPER V. REYNOLDS, 10 
 
 Wall. 308 15 
 
 Cited: 54, 78, 144, 267, 273, 307, 
 464, 484, SOS, § 134. 
 Cooper V. Shepherd, 3 Mann. G. 
 
 &: S. 266 323 
 
 Copin V. Adamson, Law Rep. 9 
 
 Ex. 345 64 
 
 Corbett v. Nutt, 10 Wall. 464 52 
 
 Corbit V. Corbit, 50 N. J. L. 363. .105 
 Corbitt V. Reynolds, 68 Ala. 378. . .294 
 
 Cornell v. Barnes, 7 Hill 35 183 
 
 Cornell v. Cook, 7 Cowen 310. ...213 
 Cornett v. Williams, 20 Wall. 226. 47 
 Corson v. Hunt, 14 Pa. St. 510.321, 346 
 Cormack v. Commonwealth, 5 
 
 Binn. 184 327 
 
 Corriell v. Doolittle, 2 G. Greene 
 
 385 180, 220 
 
 Cosh Murray Co. v. Tuttich, 10 
 
 Wash. 449 178 
 
 Cost V. Genette, i Porter 212 498 
 
 Couley V. Chilcote, 25 Ohio St. 320 "jj 
 Courtney v. Carr, 5 Iowa 238. . .§ 163 
 Coventry v. Barton, 17 John. 142.322 
 Covert V. Nelson, 8 Blackf. 265.. 202 
 
 Cowan V. Sapp, 74 Ala. 44 24a 
 
 Cowdin V. Hurford, 4 Ohio 133. . .165 
 Cowles V. Bacon, 21 Conn. 451... 5 13 
 
 Cox V. Joiner, 4 Bibb 94 347 
 
 Cox V. Montford, 66 Ga. 62 362 
 
 Craig V. Ely, S Stew. & Port. 354.498 
 CRAMER V. VAN ALSTYNE, 
 
 9 Johns. 386 290 
 
 Cited : 289 
 
 Crawford v. Slade, 9 Ala. 887. .. .203 
 Creasser v. Young, 31 Ohio St., 
 
 57 §110 
 
 Crenshaw v. Harrison, 8 Ala. 343.224 
 Cresson V. Stout, 17 Johns. 116. ..190 
 Creswell v. Burt, 61 Iowa SQO. . . .352 
 Crippen v. Fletcher, 56 Mich. 388.220 
 Criswell v. Ragsdale, 18 Tex. 445. 79 
 Croft V. Miller, 26 Minn. 317... § 12 
 CROMWELL V. COUNTY OF 
 
 SAC, 4 Otto 351 126 
 
 Cross V. Zane, 47 Cal. 602. . . .513, § 71 
 Crutchfield v. Haynes, 14 Ala. 49.490 
 Crutchfield v. Robins, 24 Tenn. I5.§ 219 
 Gumming v. Brown, 43 N. Y. 514.326 
 Cumminp's v. Long, 16 Iowa 41.. 458 
 Cunningham, In re, 9 Cent. L. J. 
 
 208 410 
 
 Cunningham v. Mitchell, 4 Rand. 
 
 189 8s 
 
 Curry v. The Mayor and Alder- 
 men of Savannah, 64 Ga. 290.. .255 
 
 Curtis V. Hollingshead, 14 N. J. L. 
 
 402 165 
 
 Curtis V. Hubbard, 4 Hill 437 414 
 
 Curtis V. Millard & Co., 14 Iowa 
 
 128 Sio 
 
 Gushing v. Hurd, 4 Pick. 253... .343 
 
 Custer V. White, 49 Mich. 462 408 
 
 Cutler V. Colver, 3 Cowen 30 196 
 
 Dahlman v. Greenwood, 99 Wis. 
 
 163 463 
 
 Dale v. Copple, 53 Mo. 321 § 12 
 
 Danforth v. Rupert, 11 Iowa 547.474 
 D'Arcy v. Ketchum, II How. 
 
 165 49, 57 
 
 Darlington v. New York, 31 N. 
 
 Y. 164 255 
 
 Darrance v. Preston, 18 Iowa 396. 61 
 Dart V. Woodhouse, 40 Mich. 399.§ 173 
 Dasher v. Dasher, 47 Ga. 320.... 8u 
 DAUGHERTY v. MOON, 59 
 
 Texas 307 222 
 
 Cited 328, § 122, 125 
 
 Davidson v. Carroll, 23 La. An. 
 
 108 § 10 
 
 Davidson v. Owen, 5 Minn. 69. .§ no 
 Davidson v. Slocomb, 18 Pick. 
 
 464 § 13 
 
 Davidson v. Waldron, 31 111. I20.§ 183 
 Davis v. Headley, 7 C. E. Gr. 115 
 
 68, 70 
 
 Davis V. Humphrey, 22 Iowa 138.401 
 
 Davis V. Kline, 76 Mo. 310 294 
 
 Davis V. M. & C. R. R. Co., 87 
 
 Ala. 633 241 
 
 Davis V. Mahany, 38 N. J. L. 104.229 
 Davis V. Oswalt, 18 Ark. 414. . . .§ 190 
 Davis V. Packard, 6 Wend. 327. . 97 
 Davis V. Pawlette, 3 Wis. 300.... 251 
 Davis V. Pinckney, 20 Tex. 341 . . 80 
 
 Davis V. Ransom, 26 111. 100 280 
 
 Davis S. M. Co. v. Whitney, 61 
 
 Mich. 518 § 192 
 
 Dawson, Matter of, no N.Y. 114. 213 
 Dawson v. Brown, 12 Gil. & J. 53 
 
 168, 170 
 
 DAWSON V. HOLCOMB, i 
 
 Hammond 275 422 
 
 Cited 427 
 
 Day V. Gallup, 2 Wall. 97 325 
 
 Deland v. Hiett, 27 Cal, 611 §219 
 
 Delaware L. & W. Ry. v. Burk- 
 
 ard, 109 N. Y. 648 8 12 
 
 DE LOACH V. ROBBINS, 102 
 
 Ala. 288 293 
 
 Cited §§146, 147 
 
TABLE OF CASES REPRINTED AND CITED. 
 Figures before §§ refer to pp. of cases ; after, to §§ of text. 
 
 15 
 
 Dempsey v. Bush, i8 Ohio St. 376.496 
 Denny v. Warren, 16 Mass. 420. .430 
 
 Deno V. Thomas, 64 Vt. 358 462 
 
 Denton v. Noyes, 6 Johns. 296. ... 90 
 
 Derrick v. Cole, 60 Ark. 394 456 
 
 Dewey v. Peeler, 161 Mass. 135. § 54 
 
 Dezell V. Odell, 3 Hill 215 §155 
 
 Dibble v. Briggs, 28 111. 48 §219 
 
 Dickinson v. Clement, 87 Va. 41. .201 
 Diefenback v. Stark, 56 Wis. 462.. 389 
 Diller v. Roberts, 13 S. & R. 60. . 87 
 DILLON V. BURNHAM, 43 
 
 Kan. 'J^ 228 
 
 Cited 267, § 127 
 
 Dirickson v. Showell, 79 Md. 49. . 
 
 i57> 158, 168 
 
 Dixon V. White Sewing Mach. 
 
 Co., 128 Pa. St. 397 217 
 
 Dobbs V. Dean, 3 Wend. 438 215 
 
 Dobson V. Pearce, 12 N. Y. 156... 100 
 
 Dodge V. Mack, 22 111. 93 457 
 
 Doe, ex dem. Barden, v. McKin- 
 
 nie, 4 Hawks 279 206, 211 
 
 Doe V. Flake, 17 Me. 249 343 
 
 Doe V. Harter, 2 Carter 252 194 
 
 Doe V. Pickett, 51 Ala. 584 294 
 
 Dolby V. Tingley, 9 Neb. 412 474 
 
 Dolsen v. Brown, 13 La. An. SSI. 399 
 Done V. Smethier, Cro. Car. 416. .365 
 Donnelly v. Elser, 69 Tex. 282... 168 
 Dooley v. Wolcott, 4 Allen 406. . . 87 
 Doolittle V. Clark, 47 Conn. 316. § 133 
 Doughty V. Meek, 103 Iowa 16. .201 
 Douglas V. Forest, 4 Bing. 693. .§ 17 
 Dowling V. Lancashire Ins. Co., 
 
 89 Wis. 96 393 
 
 DUCHESS OF KINGSTON'S 
 
 CASE, 2 Smith L. C. *429 109 
 
 Cited 119, §§ 68, 76, 77 
 
 Ducker v. Burnham, 146 111. 9. .§,174 
 Duckett V. Dalrymple, i Rich. L. 
 
 143 483 
 
 Dugas V. Mathews, 9 Ga. 510 IS3 
 
 Dulton V. Shelton, 3 Cal. 206 174 
 
 Duncan v. Harris, 17 Serg. & R. 
 
 436 217 
 
 Duncan v. Headley, 4 Bush. 45... 165 
 Duncan v. M'Comber, 10 Watts 
 
 212 446 
 
 Dunham v. South Park, 87 111. 
 
 18s §13 
 
 Dunn V. Frazier, 8 Blackf. 432... 514 
 Dunn V. Mackey, 80 Cal. 104.... 157 
 
 Dunn V. Snell, 15 Mass. 481 490 
 
 Durand v. Trusdell, 44 N. J. L. 
 
 597 496 
 
 Dyke v. Mercer, 2 Shower 394... 213 
 D>son V. Wood, 3 B. & C. 449--§ I3 
 
 East Ala. Ry. Co. v. Visscher, 114 
 
 U. S. 340 244 
 
 Eastman v. Curtis, 4 Vt. 616 87 
 
 Eck V. Hoffman, 55 Cal. S02 174 
 
 Ecker v. First Nat. Bank, 64 Md. 
 
 292 § 13 
 
 E. C. Meachams Arms Co. v. 
 
 Strong, 3 Wash. 61 336 
 
 Edson V. Cumings, 52 Mich. 52 . . . 168 
 Edwards v. Evans, 61 111. 492... § 13 
 Edwards v. Hughes, 20 Mich. 289.165 
 EDWARDS V. KEARZEY, 96 U. 
 
 S. 595 299 
 
 Cited §§ 149, 194 
 
 Edwards v. Roepke, 74 Wis. 571.393 
 Edwards v. Thompson, 85 Tenn. 
 
 720 § 191 
 
 Ela V. Welch, 9 Wis. 395 479 
 
 Elder v. Cozart, 59 Ga. 199 86 
 
 Eldridge v. Chambers, 8 B. Mon. 
 
 411 482 
 
 ELLIOTT V. JACKSON, 3 Wis. 
 
 649 153 
 
 Elliott V. Piersol, i Peters 328.. 25, 93 
 Embree v. Hanna, 5 Johns. 101.76, 202 
 EMERSON V. DETROIT S. & 
 
 S. CO., 100 Mich. 127 168 
 
 Cited 273, §§ 112, 196 
 
 Emery V. Whitewell, 6 Mich. 474. § 51 
 England v. Clark, 4 Scam. 486.322,514 
 Enos V. Smith, 7 Sm. & M. 85 ... 93 
 ERICKSON V. D., S. S. & A. 
 
 RY. CO., IDS Mich. 415 473 
 
 Cited § 206 
 
 ERSKINE V. STALEY, 12 Leigh 
 
 406 458 
 
 Cited §§ iss, 192, 195, 204 
 
 Erwin v. Blake, 8 Peters 18 499 
 
 Erwin v. Rutherford, 9 Tenn. 169. § 218 
 Erwin's Lessee v. Dundas, 4 How. 
 
 79 194 
 
 ESLER V. KENT CIRCUIT 
 
 JUDGE, 108 Mich. 543 151 
 
 Cited § 109 
 
 Estlow V. Hanna, 75 Mich. 219. . .167 
 
 EVANS V. BARNES, 2 Swan 
 
 291 468 
 
 Cited §§ 163, 203 
 
 Evans v. Etheridge,g6 N. Car.42.§ 133 
 Evans v. Parker 20 Wend. 622. ..214 
 Evans v. St. Paul Harvester 
 
 Works, 63 Iowa 204 403 
 
 Evansville Gas-Light Co. v. 
 
 State, 73 Ind. 219 § 74 
 
 Ewer v. Coffin, i Cush. 23 92 
 
 Ewing V. Orr Ewing, 9 App. Cas. 
 34 68 
 
16 
 
 TABLE OF CASES REPRINTED AND CITED. 
 Titles in caps are cases reported; others, cases cited. 
 
 Fairchild v. Lynch, 99 N. Y. 359. § 74 
 
 Fairfield v. Paine, 23 Me. 498.... 87 
 
 Farebrother v. Ansley, I Campb. 
 343 322 
 
 Farmers' Bank v. Peter, 13 Bush 
 591 S14 
 
 Farmers & Mech. Bank v. Kings- 
 ley, 2 Doug. 379 217 
 
 Fears v. State, 102 Ga. 274 §173 
 
 FERGUSON V. CRAWFORD, 
 
 70 N. Y. 253 88 
 
 Cited §60 
 
 Ferguson v. Williams, 3 B. Men. 
 302 332, 483 
 
 FERRIS V. FERRIS, 25 Ver- 
 mont 100 147 
 
 Cited § 107 
 
 Feusier v. Lammon, 6 Nev. 209. . .326 
 
 Field V. Gibbs, i Peters C. C. R. 
 iSS 92 
 
 FIELD V. MACULLAR, 20 111. 
 
 App. 392 432 
 
 Cited . .434, 482, §§ 184, 185, 19s, 204 
 
 Field V. Milburn, 9 Mo. 488 
 
 456,457, §190 
 
 Findlay v. McAllister, 113 U. S. 
 104 § 194 
 
 Finney v. Harding, 136 111. 573- •§ I94 
 
 FIRST NAT. BANK v. D. & ST. 
 
 P. RY. CO., 45 Iowa 120 372 
 
 Cited §169 
 
 First Nat. Bank v. D. S. W. Ry. 
 Co., 52 Iowa 378 ...400 
 
 First Nat. Bank v. Indianapolis 
 P. N. Co., 45 Ind. 5 §216 
 
 Fisher v. Consequa, 2 Wash. U. 
 
 s. c. c. 392 148, 157, 174 
 
 Fisher v. Fisher, 99 Mass. 303. ■§ 74 
 Fisher v. Hall, 44 Mich. 494- •• ■§ 192 
 
 Fisher v. Lane, 3 Wils. 297 60 
 
 Fisher v. Magnay, s M.& G.778.§ 156 
 
 Fisher v. Hervey, 6 Colo. 16 306 
 
 Fisk V. Thorp, 51 Neb. i 311 
 
 Fiske V. Lamoreaux, 48 Mo. 523.. 220 
 
 Fitch, Matter of, 2 Wend. 298 174 
 
 Fitler v. Fossard 7 Pa. St. 540. ..322 
 Fitzgerald v. Kimball, 86 111. 396. 87 
 Fitzgerald, Matter of, 2 Caines 
 
 317 ••••• §"2 
 
 Flake v. Day, 22 Ala. 132 §135 
 
 FLEETWOOD'S CASE, 8 Coke's 
 
 Reports 171 435 
 
 Cited 448, § 189 
 
 Flemraing v. Beaver, 2 Rawle 128.496 
 Flud V. Penington, Cro. Eliz. 872. 86 
 Fluker v. Turner, 5 Martin N. S. 
 
 707 220 
 
 Focke V. Blum, 82 Tex. 436.462, § 192 
 
 Fogleman v. Shively, 4 Ind. App. 
 
 197 383 
 
 Folkerts v. Standish, 55 Mich. 463.305 
 Folsom V. Chesley, 2 N. H. 432... 502 
 Fonda v. Van Home, IS Wend. 
 
 631 209 
 
 Foot V. Knowles, 4 Mete. 386 278 
 
 Forbes v. Smith, S Ired. Eq. 369- -503 
 Fort St. Union Depot Co. v. Back- 
 us, 103 Mich. 564 153 
 
 Foster v. Jackson, Hobart 52 
 
 472, 488, 489 
 FOSTER V. SINGER, 69 Wis. 
 
 392 387 
 
 Cited §168,170 
 
 Foster v. Wiley, 27 Mich. 244 297 
 
 Foulks V. Pegg, 6 Nev. 136 §195 
 
 Fowler v. Lee, 10 G. & J. 358. ... 85 
 Fowler v. Ry. Co., 35 Pa. St. 22. .375 
 Franciscus v. Bridges, 18 Mo. 20S.165 
 Frankfort Bank v. Markley, i 
 
 Dana 373 507 
 
 Franklin v. Ward, 3 Mason 136.. 407 
 Frayser v. Richmond etc. Co., 81 
 
 Va. 388 §190 
 
 Frazier v. Parks, 56 Ala. 363 499 
 
 Freeland v. Williams, 131 U. S. 
 
 405 §§ II, 149 
 
 FREEMAN v. CALDWELL, 10 
 
 Watts 9 510 
 
 Cited §225 
 
 Freeman v. Dawson, no U. S. 
 
 264 311, 482 
 
 Freeman v. Howe, 24 How. 450. .325 
 Freeman v. Leonard, 99 N. Car. 
 
 274 §159 
 
 Freer v. Hamilton, 86 N. W.824.§ 137 
 French v. DeBow, 38 Mich. 712 
 
 ^•. §§191,192 
 
 Fries V. Pennsylvania Ry. Co., 
 
 98 Pa. St. 142 § 88 
 
 Friyer v. McNaughton, no Mich. 
 
 22 217, 469, § 203 
 
 Frost V. Etheridge, i Dev. 30. ...211 
 
 Fry v. Manlove, i Baxter 256 217 
 
 Fuller V. Smith, 5 Jones Eq. 192.. 220 
 Fulton's Ets., In Re, 51 Pa. St. 
 
 204 481 
 
 Furlong v. Edwards, 3 Md. 99... 457 
 Furman v. Dewell, 35 Iowa 170. .272 
 Fush V. Egan, 48 La. Ann. 60. . .§ 223 
 
 Gage v. Graffam, 11 Mass. 181... 365 
 Gager v. Watson, 11 Conn. 168. . 
 
 225, 407 
 
 Galbraith v. Sidner, 28 Ind. 142.. § 51 
 Gallagher v. Bishop, 15 Wis. 276.5 183 
 
TABLE OF CASES REPRINTED AND CITED. 
 FigAires before §§ refer to pp. of cases ; after, to §§ of text. 
 
 17 
 
 Galpin V. Page, i8 Wall. 350. §§ 55, 224 
 Gamble v. Central R. & B. Co., 80 
 
 Ga. S9S 406 
 
 Gamble v. Trahen, 4 Miss. 32. . .§ 133 
 Gardner v. Buckbee, 3 Cowen 120.128 
 GARDNER v. MOBILE & N. 
 
 W. R. CO., 102 Ala. 635 238 
 
 Cited 270, 418, § 179 
 
 Garrett v. Hamblin, 11 S. & M. 
 
 219 352 
 
 Garth v. McCampbell, 10 S'lo. 154.490 
 Gary v. State, 11 Tex. App. 527. . 86 
 Gates V. Bennett, 33 Ark. 475- ■ ■§ S3 
 
 Gayle v. Benson, 3 Ala. 234 219 
 
 Genner v. Sparkes, i Salk. 79.... 431 
 George v. Skeates, 19 Ala. 738... 455 
 Gerber v. Ackley, 32 Wis. 233... 326 
 Gidday v. Witherspoon, 35 Mich. 
 
 ' 368 31S 
 
 Giddens v. Williamson, 65 Ala. 
 
 339 496 
 
 Gilkeson v. Bond, 44 La. An. 841. §201 
 Gilkey v. Dickerson, 3 Hawks 293 . 207 
 Gillespie v. Commercial M. M. Ins. 
 
 Co., 12 Gray 201 63 
 
 Gillig V. Grant, 23 App. Div. 596.434 
 Gilman v. Oilman, 126 Mass. 26. . 85 
 Gilmore v. Moore, 30 Ga. 628. . . .352 
 Gilson V. Parkhurst, 53 Vt. 384. . . 87 
 Gimble v. Ackley, 12 Iowa 27. .. .458 
 Glascocke v. Morgan, i Kib. 556. § 102 
 Glenn v. Boston & Sandwich 
 
 Glass Co., 7 Md. 287 378 
 
 Goddard v. Perkins, 9 N. H.488'.§ 19s 
 Goldsborough v. Orr, 8 Wheaton 
 
 217 157 
 
 Goodbar v. City Nat. Bank, 78 
 
 Tex. 461 §134 
 
 Goode V. Miller, 78 Ky. 235 § 162 
 
 Gooding v. Kingston, 20 Mich. 
 
 441 174 
 
 Goodrich v. Bodurtha,6 Gray 323. § 88 
 Gordon v. Brewster, 7 Wis. 355-. 389 
 GORDON V. CAMP, 3 Barr 349.296 
 
 Cited 328, 360, 484, 505, § 164 
 
 Gordon v. Jenny, 16 Mass. 465... 430 
 Gott V. Hoschna, 57 Mich. 413... '168 
 Goubot V. De Crouy, 2 Dowl. P. 
 
 C. 86 86 
 
 Gould V. Hayden, 63 Ind. 443 ... § 73 
 Gould V. Sternberg, 128 111. 510. .§224 
 Governor v. Hancock, 2 Ala. 728.326 
 Governor v. Read, 38 Ala. 252.. §218 
 GOWAN V. FOUNTAIN, 50 
 
 Minn. 264 145 
 
 Cited 353, 357, 359, § 106 
 
 Gower v. Emery, 18 Me. 79 322 
 
 Grace v. Mitchell, 31 Wis. 533- ■• 
 
 313, § 153 
 
 b 
 
 GRAIGHLE v. NOTNAGLE, i 
 
 Peters 245 234 
 
 Cited §§ 128,209 
 
 Grammel v. Carmer, 55 Mich.. 201. 399 
 Granger v. Clarke, 22 Me. 128... 92 
 Gray v. Palmer, 28 Cal. 416.... § 13 
 
 Gray v. Wass, I Me. 257 499 
 
 Green v. Biddle, 8 Wheat, i- 301 
 
 GREEN v. BURKE, 23 Wend. 
 
 490 205 
 
 Cited : 195, 216, 217, 328, 427, 
 
 488, §§ 120, 164, 183. 
 Green v. Burnham, 3 Sand. Ch. 
 
 no 183 
 
 GREEN V. JOHNSON, 2 Hawks 
 
 309 447 
 
 Cited §§189, 194 
 
 Green v. Kindy, 43 Mich. 279.... 86 
 Green v. Palmer, 15 Cal. 411... §159 
 
 Green v. Pyne, i Ala. 235 164 
 
 Green v. Stone, i Harris & John. 
 
 40s 433 
 
 Greenfield v. Wilson, 13 Gray 384.327 
 GREENVAULT v. FARMERS 
 
 6 M. BANK, 2 Doug. 498. ... 24 
 Cited 144, 273, 505, § 55 
 
 Gregor v. McVeigh, 23 Wall. 294. 39 
 Griffith v. Etna Fire Ins. Co., 
 
 7 Md. 102 §130 
 
 Griswold v. Hill, 2 Paine 492. . .§ 73 
 Gross v. Goldsmith, 4 Mack. 126 
 
 168, 170 
 
 Grosvenor v. Chesley, 48 Me. 369.506 
 Gue v. Tidq Water Co., 24 How. 
 
 257 242, §173 
 
 Guilmartin v. Wood, 76 Ala. 204.294 
 Guiterman Bros. v. Sharvey, 46 
 
 Minn. 183 338 
 
 Gullett V. Lewis, 3 Stew. 23 498 
 
 GUTTERSON v. MORSE, 58 N. 
 
 H. 529 376 
 
 Cited §169 
 
 Haden v. Walker, 5 Ala. 86 508 
 
 Hadley v. Peabody, 13 Gray 200. .388 
 Haebler v. Myers, 132 N. Y. 363, 
 
 434 §223 
 
 HAGAN V. LUCAS, 10 Pet. 400...418 
 
 Cited 427, 434, 455, 464, 483, 
 
 §§ 180, 207 
 
 Haggerty v. Wilber, 16 Johns. 287 
 
 190, 207, 317 
 
 Hahn v. Kelly, 34 Cal. 391. 93, §§55, 60 
 Hakes v. Shupe, 27 Iowa 465 .... 61 
 Halcombe v. Loudermilk, 3 Jones 
 
 491 512 
 
18 TABLE OF CASES REPRINTED AND CITED. 
 
 Titles in caps are cases reported; others, cases cited. 
 
 Hale V. Ames, 2 T. B. JVIon. 143.323 
 
 Hale V. Chandler, 3 Mich. 531 168 
 
 Hale V. Huntley, 21 Vt. 147 §177 
 
 Hall V. Hall, 12 W. Va. i §134 
 
 Hall V. Ray, 40 Vt. 576 § 159 
 
 HAMILTON V. MOONEY, 84 
 
 N. C. 12 502 
 
 Cited §214 
 
 Hamilton v. Phillips, 120 Ala. 177. § 190 
 Hamilton v. Ward, 4 Tex. 35b. .§ 163 
 HAMNER V. BALLANTYNE, 
 
 13 Utah 324 312 
 
 Cited §§ 126, 152, ISS, 172 
 
 Hampton, Ex parte, 2 G. Greene 
 
 137 188, 222 
 
 Hampton v. McConnel, 3 Wheat. 
 
 234 95 
 
 Hanchett v. Ives, 133 111. 332. 456, §190 
 Hancock v. Colyer, 99 Mass. 187.390 
 HANDY V. DOBBIN, 12 Johns. 
 
 220 424 
 
 Cited §166 
 
 Hanmer v. Wilsey, 17 Wend. 91.. 209 
 Harbeck v. Vanderbilt, 20 N. Y. 
 HARBERT'S CASE,3 Coke iib.137 
 
 Cited 354, 4i8, §§ 166, 189 
 
 Hard v. Shipman, 6 Barb. 621... 98 
 Hardesty v. Campbell, 29 Md. S33.410 
 Harding v. Spivey, 8 Ired. 63.... 457 
 
 395 496 
 
 HARGAN V. BURCH, 8 Iowa 
 
 309 ^"77 
 
 Cited 359, §§ "4. 162 
 
 Harper v. Graham, 20 Ohio. 105. .§219 
 Harper v. Harvey, 4 W. Va. 539. .499 
 Harrell v. Whitmore, 19 Ala. 135 -iSJ 
 Harrington v. Taylor, 15 East 378 86 
 Harrington v. People, 6 Barb. 607 98 
 
 Harris v. Ellis, 30 Tex. 4 §218 
 
 Harris v. Frank, 29 Kan. 200 496 
 
 Harris v. Hanson, 11 Me. 241 327 
 
 Harris v. Hardeman, 14 How. 334 
 
 60, 94 
 
 Harrow v. Lyon, 3 G. Greene 157.474 
 
 Hart V. Wingart, 83 111. 282 433 
 
 HARTLEIB v. McLANE, 44 
 
 Penn. St. 510 348 
 
 Cited §157 
 
 Hartley and Minor's Appeal, 53 
 
 Pa. St. 212 223 
 
 Harvey v. Gt. Nor. Ry. Co., 50 
 
 Minn. 405 76 
 
 Harvey v. Tyler, 2 Wall. 328 17 
 
 Harwell v. Sharp, 85 Ga. 124 76 
 
 Haselton v. Monroe, 18 N.H.598.202 
 Hatcher v. Rocheleau, 18 N.Y. 86.100 
 Hathaway v. Howell, 54 N. Y.97.§ 155 
 Hathaway v. Russell, 16 Mass. 473. 142 
 Haven v. Owen, 121 Mich. 51... § 60 
 
 HA WES V. CLEMENT, 64 Wis. 
 
 152 159 
 
 Cited 273, §§ 159, 198, 200 
 
 Hawkeye Ins. Co. v. Luckow, 76 
 
 Iowa 21 § 218 
 
 Hayes v. Buzzell, 60 Me. 205. ..§ 159 
 Hayes v. Ward, 4 Johns. Ch. 123.496 
 Haynes v. Leppig, 40 Mich. 602. .381 
 
 Hays v. Cassell, 70 111. 669 §223 
 
 Hazard v. Jordan, 12 Ala. 180. .. .158 
 Heckscher .v. Trotter, 48 N. J. L. 
 
 419 158 
 
 HEILIG V. LEMLY, 74 N.C.250.489 
 
 Cited § 220 
 
 HEINEMAN v. SCHLOSS, 83 
 
 Mich. 153 305 
 
 Cited § 149 
 
 Henderson v. Henderson, 3 Hare 
 
 100 132 
 
 Hendricks v. Robinson, 2 Johns. 
 
 Ch. 283 §195 
 
 Henry v. Gold Park Mining Co., 
 
 S McCreary 70 407 
 
 Henry v. Traynor, 42 Minn. 234. § 122 
 Hen hall v. Roberts, S East 150. .233 
 Herdman v. Cann, 2 Houston 41.271 
 Herkimer Co. Bank v. Brown, 6 
 
 ■ Hill 232 465 
 
 Hernandez v. Drake, 81 111. 34... 280 
 Herndon v. Pickard, 5 Lea 703... 510 
 HEWITT & WAGAR LUMBER 
 
 CO., 38 Mich. 701 403 
 
 HEYE & CO. V. MOODY & CO., 
 
 67 Texas 615 365 
 
 Cited §§ 164, 180, 209 
 
 Hiant v. Hays, 38 W. Va. 681 .. § 19a 
 Hibbard v. Zenor, 75 Iowa 471 .. § 183 
 HIBSHMAN v. DULLEBAN, 4 
 
 Watts 182 119 
 
 Cited §85 
 
 Hickey v. Hinsdale, 8 Mich. 267. § 13 
 Hickey v. Stewart, 3 How. 750. . 93 
 
 Hicks V. Gleason, 20 Vt. 139 203 
 
 Higgens's Case, 6 Coke 44 S 7-1 
 
 Hill V. La. C. & M. R. R. Co., 14 
 
 Wis. 291 251 
 
 Hill V. Reynolds, 93 Me. 25 §211 
 
 Hill V. Slaughter, 7 Ala. 632 §194 
 
 Hilton V. Guyot, 159 U. S. 113.. § 84 
 Hinchman v. Town, 10 Mich. 508 
 
 ■ • • 168, 170 
 
 Hmman v. Brees, 13 Johns. 529. .344 
 
 Hmson v. Wall, 20 Ala. 298 § 13 
 
 Hinton v. Odenkeimer, 4 Jones 
 
 Eq. 406 4g6 
 
 Hoag V. Hoag, 55 N. H. 173 237 
 
 HOAGLAND v. CREED, 81 111 
 
 506 13 
 
 Cited 267, 307 
 
TABLE OF CASES REPRINTED AND CITED. 19 
 
 Figures before §§ refer to pp. of cases ; after, to §§ of text. 
 
 Hoagland v. Wilcox, 42 Neb. 138.178 
 Hobart v. Hobart, 45 Iowa 501 • ■§ 14 
 Hochstadler v. Sam., 73 Tex. 315- 157 
 Hodgins v. Heaney, 15 Minn. 185 12 
 Hoerr v. Meihofer, ^^ Minn. 228.. 357 
 Hoffman v. Hoffman, 46 N. Y. 30 91 
 Hoggatt V. Montgomery, 7 Miss. 
 
 93 § 54 
 
 HOLKER V. HENNESSEY, 141 
 
 Mo. 527 413 
 
 Cited 427, §§ 159, 178, i8b 
 
 Holland v. Dale, Minor 265 219 
 
 Holland v. Mobile & O. R. R., 84 
 
 Tenn. 414 76 
 
 HoUiman v. Carroll, 27 Tex. 23. . .327 
 HoUingsworth v. Barbour, 4 Pet. 
 
 466 93 
 
 Hollister v. Dillon, 4 Ohio St. 198.513, 
 HOLLISTER v. GOODALE, 8 
 
 Conn. 332 429 
 
 Cited §183 
 
 HoUon V. Hale, 51 S. W. 900.... 512 
 Holloway v. Brinkley, 42 Ga. 226.162 
 Holloway v. Johnson, 7 Ala. 660. . 185 
 Holman v. Johnson, i Cowp. 341.322 
 
 Hooper v. Day, 19 Me. 56 372 
 
 Hoover v. Hathaway, 9 Mackey 
 
 591 158, 163 
 
 Hopkins v. Stockdale, 117 Pa. St. 
 
 365 §218 
 
 Hopson V. Swa:n, 50 Miss. 545. .§15° 
 Horner v. Battyn, BuUer on Nisi 
 
 Prius 62 431 
 
 Horner v. Doe, i Ind. 131 93 
 
 Horton v. Monroe, 98 Mich. 195 . § 136 
 Hotchkiss V. McVickar, 12 Johns. 
 
 403 457, § iSS 
 
 Hough V. Kugler, 36 Md. 186. iS7, IS8 
 Hovey v. Elliott, 167 U. S. 409- •§ I9 
 Howard v. Bennett, 72 111. 297... 217 
 
 Howard v. North, 5 Tex. 290 513 
 
 Howe V. Starkweather, 17 Mass. 
 
 240 143 
 
 Howe V. Stewart, 40 Vt. I4S---§I73 
 Howerton v. Luckie, 18 Tex. 236. 80 
 Howland v. Chicago, R. I. &c. 
 
 Ry., 134 Mo. 474 76, iy 
 
 Howland v. Willetts, 9 N.Y. i70.§ 195 
 Hewlett V. Tarte, 10 C. B. n.. s. 
 
 813 131 
 
 Hoyt V. Hudson, 12 Johns. 207. . .212 
 Hubbard V. Garner, 115 M1ch.406.417 
 Huber Mfg. Co. v. Sweny, 57 
 
 Ohio St. 169 § 64 
 
 Huckaby v. Sasser, 69 Ga. 603 496 
 
 Hudson V. Dangerfield. 2 La. 63. .200 
 HUDSON V. SAGINAW CIR- 
 CUIT JUDGE, 114 Mich. 116. .409 
 Cited §180 
 
 Hughes V. Alexander, 5 Duer N. 
 
 Y. Sup'r 488 131 
 
 HUGHES V. STREETER, 24 111. 
 
 647 506 
 
 Cited §§53,182,225 
 
 Hull V. Blake, 13 Mass. 153... .76, 202 
 Humphrey v. Wade, 84 Ky. 391.. 514 
 Humphreys v. Matthews, 11 111. 
 
 471 162 
 
 Humphreys v. Pratt, 2 Dow. & 
 
 Clark 288 322 
 
 Hunt V. Breading, 12 S. & R. 37 
 
 217, 500 
 
 HUNT V. HUNT, 72 N. Y. 217. 21 
 Hunt V. Norris, 4 Martin 517.... 158 
 Hunter v. Kirk, 4 Hawks 277. ... 87 
 Hunter v. Stoneburner, 92 111. 75. 87 
 Hunter v. Stove Co., 31 Minn. 505 12 
 
 Huntley v. Stone, 4 Wis. 91 389 
 
 Hurlbut V. Thomas, 55 Conn. 181 .§ 17 
 
 Hurn, Ex parte, 92 Ala. 109 416 
 
 Hutchins v. Chambers, i Burr. 589.212 
 Hutchins v. Edson, i N. H. 139, .278 
 Hutchins v. Johnson, 12 Conn. 376 85 
 Hutchinson v. Greenbush, 30 Me. 
 
 450 506 
 
 Hutchinson v. Johnston, i Term 
 
 Rep. 729 340, 450 
 
 Hyman v. Newell, 7 Col. App. 78.157 
 
 Illinois C. R. R. Co. v. Cobb, 48 
 III. 402 250, 252 
 
 ILL. CEN. R. R. CO. v. WEAV- 
 ER, 54 111. 319 149 
 
 Cited § 109 
 
 Ilsley v. Nichols, 12 Pick. 270.414, 428 
 
 In re . Cases the titles to 
 
 which begin with these words will 
 be found in this table under their 
 principle word, thus: Brown, In re 
 John. 
 
 Irvine v. Lumbermen's Bank, 2 
 Watts & Serg. 190 203 
 
 Irwin v. Picket, 3 Bibb 343 347 
 
 Jackson v. Bain, 74 Ala. 328 9 
 
 Jackson v. Benedict, 13 Johns. 533.472 
 Jackson v. Brown, 4 Cowen 550 
 
 , 278, 286 
 
 JACKSON V. BURKE, 4 Heisk. 
 
 610 170 
 
 Cited 273, § 112 
 
 Jackson iv. Catlin, 2 John. 248 268 
 
 Jackson, ex dem. Merritt, v. Bow- 
 en, 7 Cowen 13 212 
 
20 
 
 TABLE OF CASES REPRINTED AND CITED. 
 Titles in caps are cases reported ; others, cases cited. 
 
 Jackson ex dem. Carman v. Rose- 
 
 velt, 13 Johns. 97 211 
 
 Jackson ex dem. Sternberg v. 
 
 Shaffer, 11 Johns. 513 211 
 
 Jackson v. Metropolitan Ry. Co., 
 
 L. R. 2 C. P. Div. I2S 404 
 
 Jackson v. Perry, 13 B. Mon. 231 . 165 
 Jackson v. Terrell, 10 Vroom 329. 68 
 Jacobs V. Sraallwood, 63 N. C. 
 
 112 302 
 
 Jaffray v. Jennings, loi Mich. 515.166 
 James v. Burnet, 20 N. J. L. 635 . § 190 
 Jansen v. Grimshaw, 125 111. 468. § 64 
 Jaques v. Withey, i Term 557. . . .472 
 JASPER V. SCHLESSINGER, 
 
 22 111, App. 637 3 
 
 Cited: 78, 81, 177, 181, §§ 12, 50, 
 
 64, 107. 
 
 Jeffery v. Wooley, 5 Halstead 145 . 162 
 
 Jenkins v. Lemonds, 29 Ind. 294. 1326 
 
 Jennings v. Lyons, 39 Wis. 553. ..389 
 
 Jewell V. Mills, 3 Bush. 62 327 
 
 Jewett V. Wadleigh, 32 Me. no. .§ 219 
 Johann v. Rufener, 32 Wis. 195. 
 
 ^ 462, §97 
 
 Johnson v. Anderson, 4 Wend. 474. 187 
 Johnson v. Caldwell, 38 Tex. 218.514 
 Johnson v. Gorham, 6 Cal. 195. . . .463 
 Johnson v. Jones, 2 Neb. 126.... 87 
 Johnson v. Reese, 28 Ga. 353. . . .§ 157 
 Johnson v. Short, 2 La. An. 277. .162 
 
 Jones V. Burr, 5 Strobh. 147 512 
 
 Jones V. Buzzard, 2 Ark. 415.... 157 
 Jones V. Carnahan, 63 Ind. 229. ..184 
 Jones V. Com. Bank, 5 How. 43. . 86 
 
 Jones V. Cook, i Cow. 309 183 
 
 Jones V. Crittenden, i Law Repos. 
 
 38s 302 
 
 Jones V. Davis, 22 Wis. 422 356 
 
 Jones V. Huntington, 9 Mo. 247 
 
 ISO, 151 
 
 Jones V. Jamison, 15 La. An. 35. § 84 
 Jones V. Judkins, 4 Dev. & Bat. 
 
 434 447 
 
 Jones V. Logwood, l Wash. 42... 282 
 Jones V. New York & E. R. Co., 
 
 I Grant's Cases 457 407 
 
 Jones V. Pacific Wood &c. Co., 13 
 
 Nev. 3'^9 399 
 
 Jones V. Peasley, 3 G. Greene 52.458 
 Jones V. St. Onge. 67 Wis. 520.. 390, ,393 
 JONES'S ADM'R v. CREWS, 64' 
 
 Ala. 368 394 
 
 Cited §170 
 
 Jordan v. Mead, 12 Ala. 247 457 
 
 Joslyn V. Spangler, 13 Col. 491. .§ 190 
 Joyner v. Miller, 55 Miss. 208. ... 85 
 
 Judy V. Kelleyi 11 111. 211 191 
 
 Julian V. Beal, 26 Ind. 220 514 
 
 Kager v. Vickery, 61 Kan. 342. .§ 20 
 Kaiser v. Seaton, 62 Iowa 463.401, 403 
 
 Karr v. Schade, 7 Lea 294 482 
 
 Kayser v. Hall, 85 111. 5" § I3 
 
 Keane v. Fisher, 10 La. An. 261 . § 10 
 
 Keith V. Harris, 9 Kan. 387 406 
 
 Keith V. Wilson, 3 Mete. (Ky.) 
 
 201 483 
 
 Kellogg V. Freeman, 50 Miss. 127.203 
 Kelly V. McGaw, 29 Ala. 227. . . .§ 195 
 
 Kelly V. People, 115 111. 583 48 
 
 Kemp V. Cook, 18 Md. 130 § 63 
 
 KENISTON V. LITTLE, 30 N. 
 
 H. 318 231 
 
 Cited: 276, 312, 328, 418, §§ 126, 152 
 Kennedy v. Duncklee, i Gray 65. § 118 
 Kennedy v. Tiernay, 14 R. I. 528 
 
 474, 476 
 
 KENNON V. FICKLIN, 6 B. 
 
 Monroe 414 451 
 
 Cited 464, §§ 194, 195 
 
 Kent V. Hutchins, 50 N. H. 92. . . .378 
 KENTZLER v. C, M. & ST. P. 
 
 RY. Co., 47 Wis. 641 353 
 
 Cited' 146, 357, §§ 130, i6i, 172 
 
 Kerr v. Kerr, 44 N. Y. 272 91, 94 
 
 Kershaw v. Merchants' Bank, 7 
 
 How. 386 217 
 
 Kesler v. Linker, 82 N. C. 456... 504 
 Kiff V. Old Colony etc. Ry. Co., 
 
 117 Mass. 591 §173 
 
 Kightlinger's Appeal, S Out. 540 
 
 480, 481 
 
 Kilbourn v. Woodworth, 5 Johns. 37. 60 
 Kimball v. Munger, 2 Hill 364... 183 
 Kimports v. Oberholtzer, 82 N. W. 
 
 1012 512 
 
 King V. Bates, 80 Mich. 367. .§§ 53, 59 
 
 King V. Hubbell, 42 Mich. 597 381 
 
 King V. Nimick, 34 Pa. St. 297 . § 132 
 
 King V. Vance, 46 Ind. 246 202 
 
 KINGSTON'S CASE, 2 Smith 
 
 L. C. *429 109 
 
 Cited 119, §§68, 76, 77 
 
 Kirk V. Vonberg, 34 111. 440.447, § 194 
 Kirk V. Whittaker, 22 Ohio St., 
 
 115 §110 
 
 Rirtland v. Hotchkiss, 100 U. S. 
 
 491 74 
 
 KITSON V. FARWELL, 132 111. 
 
 3_27 123 
 
 Cited 
 
 77 
 
 Kittridge v. Warren, 14 N. H. 509.232 
 KLEIN V. NEW ORLEANS 99 
 
 U- S. 149 253 
 
 Cited 418, § 179 
 
 Klippel V. Shields, 90 Ind. 81.... 496 
 Kloepping v. Stellmacher, 7 
 Vroom 176 68 
 
TABLE OF CASES REPRINTED AND CITED. 
 Figures before §§ refer to pp. of cases ; after, to §§ of text. 
 
 21 
 
 Knapp V. Roche, 82 N. Y. 366. . .§ 50 
 Knapp V. Roche, 94 N. Y. 329.. .§ 216 
 Knight V. Bowley, 117 Mass. S5I-390 
 
 Knight V. Clyde, 12 R. I. 119 237 
 
 Knowell, Ex parte, 13 Vesey, Jr., 
 
 192 472 
 
 Knower v. Barnard, S Hill 377... 465 
 Knowles v. Gaslight &c. Co., IQ 
 
 Wall. s8 : 85 
 
 Knowles v. Lord, 4 Whart. 500. . 86 
 Knox V. Randall, 24 Minn. 479... 483 
 KNOX V. WEBSTER, 18 Wis. 
 
 406 328 
 
 Cited 336, §§ 157, 158, 191 
 
 Koplitz V. Powell, s6 Wis. 671... 389 
 Kouns V. Brown, 2 T. B.Mon. 146.165 
 Krippendorf v. Hyde, no U. S. 
 
 276 32s 
 
 Kuehn v. Paroni, 20 Nev. 203. .§ no 
 Kuhn V. Graves, 9 Iowa 303. . . .§ 192 
 Kyle V. Evans, 3 Ala. 481 §133 
 
 Ladd V. Adams, 66 N. Car. 164. § 194 
 
 Ladd V. Blunt, 4 Mass. 402 211 
 
 Ladd V. Jacobs, 64 Maine 347 202 
 
 Lafayette Ins. Co. v. French, 18 
 
 How. 404 58, 63 
 
 Laing v. Perrott, 48 Mich. 298 381 
 
 Lamb v. Stone, n Pick. 527. . . .§ 194 
 Lambert v. Paulding, 18 Johns. 
 
 311 190, §§ 190, 194 
 
 Lambreth v. Joffrion, 41 La. An. 
 
 749 ••••352 
 
 LAMMON V. FEUSIER, in U. 
 
 S. 17 323 
 
 Cited §§ 152, 154, 160 
 
 Lamorere v. Cox, 32 La. An. 246.483 
 
 Lane v. Jackson, 5 Mass. 157 430 
 
 Lane v. Nowell, 15 Me. 86 378 
 
 Langdon v. Potter, 13 Mass. 319. .498 
 Langdon v. Wallis, E. Lutw. folio 
 
 p. 587 491 
 
 Lange, Ex parte, 18 Wall. 163... 47 
 Laning v. Iron City Nat. Bank, 
 
 36 S. W. 481 §133 
 
 Lapsley v. Brashears, 4 Litt. 65. .301 
 Latham v. Edgerton, 9 Cow. 227. . 97 
 Lauhtz v. Gross, 16 III. App. 329.483 
 
 Laval V. Rowley, 17 Ind. 36 188 
 
 Lawrence, Ex parte, 4 Cowen 417.212 
 Lawrence v. Pond, 17 Mass. 433. .506 
 Lawrence v. Smith, 45 N. H. 533.250 
 
 Lawton v. Kiel, 51 Barb. 30 156 
 
 Leach v. Cook, 10 Vt. 239 165 
 
 Leach v. Pine, 41 111. 65 433 
 
 Leach v. Swann, 8 Blackf. 68 165 
 
 Leachman v. Pougherty, 81 111. 
 
 325 313 
 
 Leavitt v. Lyons, 118 Mass. 472. .152 
 
 Leavitt v. Metcalf, 2 Vt. 342 403 
 
 LEDYARD v. JONES, 3 Selden 
 
 SSO 344 
 
 Cited 359, §158 
 
 Lee v. Carollton S. & L. A., 58 
 
 Md. 301 § 13 
 
 Lee V. Merrick, 8 Wis. 229 389 
 
 Lee V. Tillotson, 4 Hill (N. Y.) 
 
 27 § 13 
 
 Left wick v. Hamilton, 9 Heisk. 310 85 
 Leggott V. Great N. Ry. Co., i 
 
 Q. B. Div. 599 § 80 
 
 LEHMANN v. FARWELL, 95 
 
 Wis. 185 392 
 
 Cited §§84, 168, 170, 173 
 
 Leiber v. R. R. Co., 49 Iowa 688. 76 
 Lenox v. Howland. 3 Caines 257.158 
 Leonard v. Brewer, 86 Ala. 390. .294 
 Leonard v. Brooklyn, 71 N. Y. 
 
 498 255 
 
 Leopold V. Godfrey, 50 Fed. 145.. 456 
 Leroy v. East Saginaw City Ry. 
 
 Co., 18 Mich. 233 315 
 
 Leslie v. Merrill, 58 Ala. 322 398 
 
 Lester's Case, 4 Humph. 383 469 
 
 Lewis v. Phillips, 17 Ind. 108. .188, 
 
 227 §124 
 
 Lewis v. Traders' Bank, 30 Minn. 
 
 134 39Q 
 
 Lilienthal v. Wallach, 37 Fed. 
 
 Rep. 241 § 97 
 
 LINDLEY V. O'REILLY, 50 N. 
 
 J. Law 636 65 
 
 Cited 78, 353, 357, §§ 16, 173 
 
 Line V. McCall, 85 N. W. 1089. .§ 218 
 
 Ling V. King, 91 111. 571 7 
 
 Lintz V. Thompson, i Head 456. . 
 
 490, 492 
 
 Little V. The Bank, 14 Mass. 443.472 
 Litdefield v. Ball, 103 Mich. 17... 217 
 
 Littleton v. Yost, 3 Lea 267 478 
 
 LOCKE V. HUBBARD, 9 S. 
 
 Dak. 364 9 
 
 Cited : 78, 81, 177, 181, 484, §§ 12, 
 . so, 107, 115. 
 Lockett v. Hurt, 57 Ala. 198.239,240 
 Lockhart v. McElroy, 4 Ala. 572. .311 
 Lockridge v. Biggerstafif, 2 Duv. 
 
 281 483 
 
 Lofland v. Ewing, 5 Litt. 42 347 
 
 Long V. Hall, 97 N. Car. 286 § 183 
 
 Loomis V. Lane, 28 Pa. St. 242. .§150 
 
 Lord V. Gaddis, 6 Iowa 57 158 
 
 Loring v. lUsley, i Cal. 24 § 8 
 
 Love V. Williams, 4 Fla. 126.. 457, § 190 
 Lovell V. Sabin, 15 N. H. 29 277 
 
22 TABLE OF CASES REPRINTED AND CITED. 
 
 Titles in caps are cases reported; others, cases cited. 
 
 Lowe V. Lowe, 40 Iowa 220 8^ 
 
 LOWE V. MORRIS, 13 Ga. 147. .281 
 
 Cited §143 
 
 Lowell V. Parker, 10 Met. 309. .. .327 
 Lowenberg v. Greenebaum, 99 
 
 Cal. 162 §173 
 
 Lowenstein v. Powell, 68 Miss. 73.477 
 Lundeman v. Hirth, 96 Mich. 17. § 117 
 Lusk V. Ramsey, 3 Munford 417. .421 
 
 Luton V. Hoehn, 72 111. 81 407 
 
 Lynch v. Hanahan, 9 Rich. L. 186.456 
 Lynn v. Gridley, Walk. (Miss.) 
 
 548 483, §190 
 
 Macbeth v. Haldimand, i Durn. & 
 
 East 172 264 
 
 Mack V. Parks. 8 Gray Si7-§§ IS9, 178 
 Mackey v. Hyatt, 42 Mo. App. 
 
 443 167 
 
 Macomber v. Saxton, 28 Mich. 
 
 S16 381 
 
 Maghee v. Collins, 27 Ind. 83 ... . 
 Maghee v. Kellogg, 24 Wend. 32.433 
 Magill V. Sauer, 20 Gratt. 540.... 479 
 Magniac v. Thomson, 2 Wall. Jr. 
 
 209 489 
 
 Maguire v. Bolen, 94 Wis, 4a. , .vj 1^5 
 Magwire v, Marks, 28 i\'io. 193,.. 513 
 Mahany v. Kephart, 15 W. Va. 609 70 
 Maine F. & M. Ins. Co. v. Weeks, 
 
 ■ 7 Mass. 438 141 
 
 Manning's Case, 8 Coke 94 § 224 
 
 Mantz V. Hendley, 2 Hen. & M. 
 
 308 §135 
 
 Marine Ins. Co. v. Hodgson, 7 
 
 Cranch" 332 § 65 
 
 MARINER V. COON, 16 Wis. 
 
 46s 193 
 
 Cited § J16 
 
 Markley v. Keeney, 87 Iowa 398. §201 
 Marks v. Sullivan, 9 Utah 12.... 316 
 
 Marsh v. Gold, 2 Pick. 284 319 
 
 Marsh v. Lawrence, 4 Cowen 461.446 
 
 Marsh v. White, 3 Barb. 518 §195 
 
 Marshall v. Cunningham, 13 111. 
 
 20 457 
 
 Marshall v. Hosmer, 4 Mass. 60. .322 
 Marston v. Brackett, 9 N. H. 336.277 
 Martin v. Branch Bank, 15 Ala. 
 
 594 §1,19 
 
 Martin v. Dryden, 6 111. 187.426, § 192 
 
 Martin v. Hall, 70 Ala. 421 § 134 
 
 Martin v. Hawks, 15 Johns, 405.. 225 
 Marx V. Parker, 9 Wash. 473 .... 386 
 Mason v. Eldred, 6 Waii. 231 . . .§ 89 
 Mason v. Haile, 12 Wheat. 370... 303 
 Mason v. Noonan, 7 Wis, 609, .. .251 
 
 Massie v. Watts, 6 Cranch 148,,, 52, 68 
 Massingill v. Downs, 48 U. S, 
 
 760 §§ 189, 194 
 
 Matter of • See the prm- 
 
 cipal term of the title. Matter of 
 
 Smith reads: Smith, matter of, 
 Matthews v, Densraore, 109 U, S, 
 
 216 316 
 
 Mattingly v, Boyd, 20 How, 128, .203 
 Maxham v. Day, 82 Mass. 213, , -ss IS9 
 Maxwell v. Bank of New Rich- 
 mond, loi Wis, 286 477, § 192 
 
 May V, Buckhannon R, L, Co,, 
 
 70 Md, 448 §192 
 
 May V, Cooper, 24 Hun, 7 482 
 
 May V, Walters, 2 M'C, 470 365 
 
 Mayer v, Zingre, 18 Neb, 458 167 
 
 Maynard v. May, 25 S. W. 879. .§223 
 Mayor of N. Y. v. Sibberns, 3 Ab- 
 bott App. 266 326 
 
 McAllister v. Brooks, 22 Me. 80. .202 
 McBride v. Farmers' Bank, 28 
 
 Barb. 476 201 
 
 McBride v. Longworth, 14 Ohio 
 
 St. 349 § 224 
 
 McCall V. Rickarby, 85 Ala. 152. .240 
 McCall V. Trevor, 4 Blackf. 496 
 
 450, 457 
 
 McCants v. Rogers, 3 Brev. 388. ,479 
 McCamy v, Lawson, 3 Head 256 
 
 476. 482 
 
 McCARVER V, NEALEY, i G, 
 
 Greene 360 497 
 
 Cited §§218, 219 
 
 M'Clelland v, Slingluff, 7 W, & 
 
 S. 134 434 
 
 McClung V, Beirne, 10 Leigh 394,496 
 McCollum V, Hubbert, 13 Ala, 382,294 
 McCormack v, Hancock, 2 Barr 
 
 310 122 
 
 McCormick v, Wheeler, 36 111, 
 
 114 § 12 
 
 McCracken v, Hayward, 2 How, 
 
 608 301 
 
 McCuUough V, Hellman, 8 Ore, 
 
 191 § 74 
 
 McDaniel v, Hughes, 3 East 367,202 
 McDermott v. Clary, 107 Mass, 
 
 SOI 85 
 
 McDonald v, Alanson Mfg, Co,, 
 
 107 Mich, 10 179 
 
 McDonald v. Fuller, 11 S, Dak, 
 
 355 357 
 
 McDonald v, Gronefeld, 45 Mo,28,§ 163 
 McDonald v, Wilkie, 13 111, 22,.. 313 
 McDougallv, Lamb, 113 Mich, 69, §200 
 McElhaney v, Gilleland, 30 Ala 
 
 183 326 
 
 McElhenny v,Wylie,3 Strob,284,§ 159 
 
TABLE OF CASES REPRINTED AND CITED. 
 Figures before §§ refer to pp. of cases; after, to §§ of text. 
 
 23 
 
 M'Elmoyle v. Cohen, 13 Pet. 312. 57 
 McElwee v. Jeffreys, 7 S. Car. 228. 201 
 McFadden v. O'Donnell, 18 Cal. 
 
 160 203 
 
 McGarry v. Lewis C. Co., 93 Mo. 
 
 237 §204 
 
 McGavock v. Bell, 3 Cold. 512. . . 17 
 M'Ghee v. Ellis, 4 Littell 244.513, 514 
 McGinnis v. Prieson, 85 Pa. St. 
 
 Ill 467 
 
 McGRAW V. MEMPHIS & O. 
 
 RY. CO., s Coldwell 434 376 
 
 M'GREGOR V. BROWN, 5 Pick. 
 
 170 342 
 
 Cited 427, 464, §§ 157, 182, 212 
 
 McHaney v. Cawthorn, 4 Heisk. 
 
 S08 165 
 
 M'Kim V. Fultons, 6 Call 106 459 
 
 McLaughlin v. Daniel, 8 Dana 182.514 
 McLean v. Martin, 45 Mo. 393- ■■514 
 McLeod V. McCall, 3 Jones L. 87.491 
 McMahan v. Colclough,2 Ala. 68. § 133 
 McMahon v. Green, 12 Ala. 71... 457 
 
 McMillan v. rowe, 15 Neb. 
 
 520 360 
 
 Cited 484, § 159, 164 
 
 McNair v. Ragland, 2 Dev. Eq. 42 . 200 
 McNulty V. Hurd, 72 N. Y. 521. § 7 
 McVeigh v. U. S., 11 Wall. 259.. 41 
 Meachams Arms Co. v. Strong, 3 
 
 Wash. 61 336 
 
 Mealing V. Pace, 14 Ga. 627.... § 14 
 Mechanics' Sav. Bank v. Waite, 
 
 150 Mass. 234 378 
 
 Meher v. Cole, 50 Ark, 361 513 
 
 Mellon V. Guthrie, 51 Pa. St. ii6.§ 132 
 MENDERSON v. SPECKER, 
 
 79 Ky. 509 298 
 
 Cited 360, § 164 
 
 Mendes v. Freiters, 16 Nev. 393 . . 168 
 Menge v. Wiley, 100 Pa. St. 617.469 
 Meriam v. Rundlett, 13 Pick. 511.203 
 Merrell v. Campbell, 49 Wis. 535.251 
 Merrill v. Sawyer, 8 Pick. 397 . . . 
 
 430, § 183 
 
 Merritt v. Bowen, 7 Cowen 13. .. .212 
 i^erritt v. Seaman, 2 Seld. 168. . 
 
 232, 233 
 
 Merry v. Bostwick, 13 111. 398... 509 
 Merryweather v. Nixan, 8 Term 
 
 i86 321 
 
 Merwin v. City of Chicago, 45 111. 
 
 133 259 
 
 Messer v. Bailey, 31 N. H. 9 87 
 
 Messinger v. Dunham, 62 Ark. 326. 157 
 MEYER V. EVANS, 27 Neb. 367. 166 
 
 Cited ■ §112 
 
 Meyer v. "Missouri G. Co., 65 
 
 Ark. 286 § 183 
 
 Michaels v. Boyd, Smith 100 471 
 
 MICHELS V. STORK, 52 Mich. 
 
 260 83 
 
 Cited 328, 427, §58 
 
 Michigan C. Ry. Co. v. Chicago & 
 
 M. L. S. Ry. Co., i Bradw. 399.252 
 Milburn v. Gilman, 11 Mo. 64. . . .292 
 MILBURN V. STATE, 11 Mo. 
 
 189 289 
 
 Cited 328, § 152 
 
 Mildmay v. Smith, 3 Saunders 343 
 
 350, 3SI 
 
 Miles V. Caldwell, 2 Wallace 35.. 128 
 Miller v. Ewing, 8 Sm. & M. 421. 93 
 Miller v. Gregory, 4 Cowen 504. .269 
 MILLER V. PARNELL, 2 Mar- 
 shall 78 19s 
 
 Cited § 120 
 
 Miller v. Richardson, i Mo. 310. .383 
 
 Miller v. Scott, 21 Ark. 396 499 
 
 Miller v. btarks, 13 Johns. 517... 472 
 Million V. Commonwealth, i B. 
 
 Monroe 310 452, 456 
 
 Mills V. Brown, 2 Mete. 404 165 
 
 Mills V. Camp, 14 Conn. 219. . . .§ 183 
 Mills V. Duryee, 7 Cranch 481... 95 
 
 Mills V. Findlay, 14 Ga. 230 158 
 
 Mills V. Martin, 19 Johns. 7 97 
 
 Mineral Pt. R. R. Co. v. Barron, 
 
 83 111. 365 n 
 
 Missouri Pac. R-". Co. v. Sharitt, 
 
 43 Kans. 375 72 
 
 Mitchell V. Anderson, i Hill L. 60.483 
 Mitchell V. Ashby, 78 Ky. 254. .§ 194 
 Mitchell v: Oldfield, 4 Term Rep. 
 
 123 225 
 
 Mitchell V. Shook, 72 111. 492 174 
 
 Mitchell's Adm. v. Gray, 18 Ind. 
 
 123 61 
 
 Mollison V. Eaton, 16 Minn. 426. .147 
 
 Monte Allegre, 9 Wheat. 616 511 
 
 Montgomery v. Vickery, no Ind. 
 
 211 496 
 
 Mooar v. Walker, 46 Iowa 164. .§ 169 
 Mooney v. Buford & George Mfg. 
 
 Co., 72 Fed. Rep. 32 75 
 
 Moore v. Chicago, R. I. &c. R. R., 
 
 43 'Iowa 385 ^^ 
 
 MOORE V. DAVIS, 57 Mich.251.398 
 
 Cited §174 
 
 MOORE V. GILMORE, 16 Wash. 
 
 123 382 
 
 Cited §§170, 174 
 
 Moore v. Westervelt, 27 N. Y.234.3S2 
 Morehead v. Western N. C. R. 
 
 Co., 96 N. Car. 362 §192 
 
 MORGAN V. PEOPLE, 59 111. 58. 221 
 
 Cited 328, §§ 122, 157 
 
 Morris v. Penniman, 14 Gray 220.416 
 
24 TABLE OF CASES REPRINTED AND CITED. 
 
 Titles in caps are cases reported ; others, cases cited. 
 
 Morton v. Pearman, 28 Ga. 324. .158 
 Moses V. Thomas, 26 N. J. L. 124 
 
 ^^ 473, §202 
 
 Moss V. Jenkins, 146 Ind. 589.. §190 
 MOUNTNEY v. ANDREWS, 
 
 Croke's EHz. 2.?7 205 
 
 Cited 205, 210, 488 
 
 Mudge V. Lanning, 68 Iowa 641. .403 
 Mueth V. Schardin, 4 Mo. App. 
 
 403 375 
 
 Mulheisen v. Lane, 82 111. Ii7..§i55 
 Mulliken v. Winter, 2 Duv. 256. . .403 
 MUMFORD V. STOCKER, i 
 
 Coweri 178 489 
 
 Cited §73 
 
 Muncie Nat. Bank v. Brown, 112 
 
 Ind. 474 
 
 Munger v. Fletcher, 2 Vt. 524 485 
 
 Munn V. Shannon, 86 Iowa 363. . .477 
 Murphy V. King, 6 Mont. 30. .. .§ 12 
 Murphy V, Swadener, 33 Ohio St. 
 
 8S §191 
 
 Murray v. Scribner, 70 Wis. 228. § 12 
 
 Nail V, Granger, 8 Mich. 450 85 
 
 National Bank v. Peabody, 55 Vt. 
 
 492 § 89 
 
 National Fire Ins. Co. v. Cham- 
 bers, 53 N. J. Eq. 468 76 
 
 Nations v. Johnson, '24 How, 195. 62 
 Naylor v. Dennie, 8 Pick. 198. .. .430 
 Near v. Mitchell, 23 Mich, 382.., 203 
 
 Needles v. Frost, 2 Okl, 19 357 
 
 Neilson v. Churchill, 5 Dana 333.347 
 Nelson v. Cook, 19 111. 440, §§ 163, 212 
 NELSON V. COOK, 17 111. 443. .321 
 
 Cited §§ 153, 212 
 
 Nelson v, Ferris, 30 Mich. 497... 381 
 Nelson v. Guffey, 131 Pa, St, 273 
 
 271, §§63, 132 
 
 Nelson v. Potter, 50 N, J, L, 324,. 70, 71 
 Nelson v. Williams, 2 D, & B, Eq, 
 
 118 S03 
 
 Newark v. Funk, 15 Ohio St. 463.256 
 Newbould v. Stewart, 15 Mich, 
 
 ISS § 12 
 
 Newcomb v. Dewey, 27 Iowa 381 . ?5 
 New Haven S. S. Co. v. Fowler, 
 
 28 Conn, 103 158 
 
 Newland v. Circuit Judge, 85 
 
 Mich. 151 174 
 
 New Orleans & C, R, Co. v. Muni- 
 cipality No, I, 7 La. An, 148,,. 255 
 New Orleans M. C. R. Co. v. City 
 of New Orltans, 14 Fed, Rep, 
 373 § 10 
 
 New Orleans v. Louisiana Con- 
 struction Co., 140 U. S. 654. ., .255 
 Nichols V. Valentine, 36 Me, 322. § 173 
 Nicoll V. N. Y. & E. R. R. Co., 
 
 2 Kernan 121 241 
 
 NicoU V. Nicoll, 16 Wend. 446, ..225 
 Ninde v. Clark, 62 Mich. 124. ..§ 12 
 Noble V. Desmond, 72 Cal. 330. .§ 157 
 Norris v, Chambres, 29 Beav, 246 68 
 
 Norris v. Hall, 18 Me. 332 202 
 
 North V, Ladd, 2 Mass, 514 §195 
 
 Northfield Knife Co, v. Sharpleigh, 
 
 24 Neb, 63s 463, § 192 
 
 Norton v. McCall, 66 N. Car. 159. § 194 
 Norton v. Meader, 4 Sawy. 603 . . 46 
 Norwood V. Norwood, 2 Harris 
 
 & J. 238 494 
 
 Noyes v. Butler, 6 Barb. 613. . . .94, 98 
 Noyes v. Foster, 48 Mich. 273. .. .408 
 Nugent V. Powell, 4 Wyo. 173.. 37 
 
 Oberwarth v. McLean, 52 How. 
 
 Pr. 491 271 
 
 O'Connor v. Walter, 37 Neb. 267. 77 
 Odiorne v. Colley, 2 N, H. 66,332, 369 
 O'Donnell v. Merguire, 131 Cal. 
 
 S27 §133 
 
 O'Farrell v. Stockman, 19 Ohio 
 
 St. 296 § 140 
 
 Oil Well S, Co, V. Koen, 60 N, 
 
 E, 603 § 89 
 
 Oldfield V, Eulert, 148 111, 614,,., 362 
 Old S, N, B, V, Williams, 112 
 
 Mich, 564 §169 
 
 Olmstead v. Brewer, 91 Ala, 124, .294 
 O'Neil V. Marson, S Burr. 2813. .351 
 Onderdonk v. San Francisco,^ 75 
 
 Cal. 534 § 12 
 
 Ontario Bank v, Hallett, 8 Cow. 
 
 „I92 183, 213 
 
 Ontario Bank v. Walker, i Hill 
 
 652 , ,, ,49s 
 
 ORDENSTEIN v. BONES, 12 
 
 Pac. 614 172 
 
 Orient Ins. Co, v, Sloan, 70 Wis, 
 
 ^611 §150 
 
 Ormerod v, Tate, i East 464 225 
 
 Osborn v. Cloud, 23 la. 105 406 
 
 Osborne v. Jordan, 3 Gray 277. ..379 
 
 Osborne v. Miller, 37 Minn, 8 512 
 
 Osgood V.Brown, Freem. 392. 499, §218 
 
 Otey V. Moore, 17 Ala. 280 §204 
 
 Otis V, Warren, 16 Mass. 53 479 
 
 Outram v. Morewood, 3 East. 346. 127 
 Overton v. Perkins, M.&Yer.367.478 
 Overton v. Perkins, 10 Yerg. 328.468 
 
TABLE OF CASES REPRINTED AND CITED. 
 Figures before §§ refer to pp. of cases ; after, to §§ of text. 
 
 25 
 
 Overton Bridge Co. v. Means, 33 
 Neb. 857 242, 244 
 
 Owens V. Clark, 78 Tex. 547 220 
 
 Owens V. Ranstead, 22 111. 161. .. . 85 
 Neb. 857 242,24s 
 
 Oystead v. Shed, 12 Mass. 506. . . § 177 
 
 Packard v. Laev, 100 Wis. 644. .§ 169 
 Paine v. Hoskins, 71 Tenn. 284. .§ 163 
 Paine v. Mooreland, 15 Ohio 436.180 
 Paine v. Spratley, S Kan. 525 .... 180 
 Palmer v. Oakley, 2 Doug. 433. . 25 
 Paramore v. Pain, Cro. Eliz. 598.237 
 Pardee v. Robertson, 6 Hill 550. .345 
 Park V. Trustees of Williams, 14 
 
 Vt. 213 148 
 
 Parker v. Dean, 45 Miss. 408 479 
 
 Parker v. Kinsman, 8 Mass. 486. .141 
 Parmelee v. Hitchcock, 12 Wend. 
 
 96 ..183, 185 
 
 Parsons v. Bowdoin, 17 Wend. 14. 211 
 PARSONS V. GILL, i L. Ray- 
 mond 695 189 
 
 Cited 434, §§ 119, 194 
 
 PARSONS V. PARSONS, loi 
 
 Wis. 76 34 
 
 Cited 78 
 
 PARSONS V. SWETT, 32 N. H. 
 
 87 276 
 
 Patterson v. Westervelt, 17 Wend. 
 
 543 344 
 
 Patton'v. Hamner, 28 Ala. 618... 224 
 
 Paul V. Smith, 82 Ky. 451 §134 
 
 Paul V. Vankirk, 6 Binn. 125.... 296 
 Paxson's Appeal, 49 Penn. St. 195 87 
 PAYNE V. DREWE, 4 East 523.338 
 Cited: 446, 447, 455, 456, 459, 
 461, 464, § 158. 
 Payne v. First Nat. Bank, 16 Kan. 
 
 147 174 
 
 Peabody v. Maguire, 79 Me. 572. .378 
 Peacock v. Jeffery, I Taunton 426.489 
 Peale v. Phipps, 14 How. 368.... 455 
 Pearson v. Gillett, 55 Mo. App. 
 
 312 §110 
 
 Pease v. Ritchie, 132 111. 638..:.. 147 
 Peck V. McLean, 36 Minn. 228. .§223 
 Peckinbaugh v. Quillin, 12 Neb. 
 
 586 275 
 
 Pendleton v. Weed, 17 N. Y. 72. . 99 
 Penfield v. Chesapeake, Ohio &c. 
 
 R. R., 134 U. S. 3SI 11 
 
 Penhallow v. Dwight, 7 Mass. 34. § 177 
 Penn v. Lord Baltimore, i Ves. 
 
 Sr. 444 52, 68, 69 
 
 Penniman v. Cole, 8 Mete. 496. ..184 
 
 PENNOYER V. NEFF, 5 Otto 
 
 714 48 
 
 Cited : 78, 144, 177, 273, 353, 4i8, 
 484, SOS, §§ 16, 17, 172, 187. 
 
 Penn. R. R. Co, v. Pennock, 51 
 Pa. St. 244 249, 252 
 
 Penobscot R. R. Co. v. Weeks, 52 
 Me. 456 93 
 
 Penton v. Brown, i Keble 698. . . .317 
 
 PEOPLE V. BRADLEY, 17 111. 
 
 485 189 
 
 Cited §119 
 
 People V. Cassels, 5 Hill 164 98 
 
 PEOPLE V. DUNNING,! Wend. 
 
 16 286 
 
 Cited 328, §152 
 
 Cited 278 
 
 People V. Hubbard, 24 Wend. 369 
 
 414, 428 
 
 People V. Lucas, 93 N. Y. 585. . . .326 
 People V. Schuyler, 5 Barb. Sup. 
 
 166 326 
 
 People V. Schuyler, 4 N. Y. 173.. 326 
 People, ex rel. Bush, v. Collins, 7 
 
 Johns. R. 549 215 
 
 People, ex rel. Dobbs, v. Dean, 3 
 
 Wend. 438 215 
 
 People's Bank v. Bramlett, 58 S. 
 
 Car. 477 §225 
 
 Pepin V. Lackenmeyer, 45 N.Y. 27 13 
 
 Percy v. Clary, 32 Md. 245 . ' § 74 
 
 Perkins v. Guy, 2 Mont. 15 407 
 
 Perkins v. Parker, i Mass. 1 17... 202 
 Perkins v. Pitman, 34 N. H. 261.. 319 
 Perry v. Blatch, 2 Kan. App. 522.383 
 Perry v. Whipple. 36 Vt. 278. . . .§ 133 
 Peterson v. Wayne Circuit Judge, 
 
 108 Mich. 608 147, 479 
 
 PETRIE V. PAINE, 9 Vt. 271 . • 162 
 Petius V. Smith, 4 Rich. Eq. 197 
 
 § 194 
 
 Phelps V. Gilchrist, 30 N. H. 171. § 155 
 Phelps V. Hawkins, 6 Mo. 197. .§ 13 
 
 Phillips V. Dana, 4 111. 551 §163 
 
 Phillips V. Lamar, 27 Ga. 228 352 
 
 Phillips V. Wheeler, (i^ N. Y. 107. .482 
 Pickett's Heirs v. Legerwood, 7 
 
 Pet. 144 106 
 
 Picquet v. Swan, 5 Mason 35-... S3 
 Picquet v. Swan, 4 Mason 443.. 142 
 Pierce v. Alsop, 3 Barb. Ch. 184.. 183 
 Pierson v. McCahill, 21 Cal. 122. .203 
 Pillsbury v. Hubbard, 10 N. H. 
 
 224 232,234 
 
 Pinder v. Morris, 3 Caines 165... 225 
 PIPER V. ELWOOD, 4 Denio 
 
 165 SOS 
 
 Cited § 225 
 
 Piper V. Goodwin, 23 Me. 251.... 232 
 
26 TABLE OF CASES REPRINTED AND CITED. 
 
 Titles in caps are cases reported ; others, cases cited. 
 
 Pittsfield Bank v. Clough, 43 N. 
 
 H. 178, 376 
 
 Planters' Bank v. Sharp, 6 How. 
 
 301 302 
 
 Poe V. Dorrah, 20 Ala. 288 493 
 
 Poling V. Flanagan, 41 W. Va. 
 
 191 •§ 192 
 
 Polley V. Lenox I. W., 86 Mass. 
 
 329 §183 
 
 Pomeroy v. Rand, McNally & Co., 
 
 157 111. 176 76 
 
 Pond V. Griffin, i Ala. 678 §192 
 
 Ponder v. Cheeves, 90 Ala. 117. ..240 
 PONTIUS V. NESBIT, 40 Penn. 
 
 St. 309 196 
 
 Pool V. Webster, 3 Mete. (Ky.) 
 
 278 §135 
 
 Poppleton V. Bryan, 36 Ore. 69. .§ 225 
 Porter v. Bronson, 29 How. Pr. 
 
 292 99 
 
 Porter v^. Haskell, 11 Me. 177 180 
 
 Porter v. Hildebrand, 2 Harris 131 . 148 
 Porter v. Wakefield, 146 Mass 
 
 25 §128 
 
 Porter v. West, 64 Miss. 548 § 197 
 
 PORTIS V. PARKER, 8 Tex. 23. 286 
 
 Cited 427, §183 
 
 Potter V. Hall, 20 Mass. 368 §178 
 
 Powers V. Hurst, 3 Blackf. 229. . . 28 
 PRACHT V. PISTER, 30 Kan. 
 
 568 179 
 
 ■ Cited 427, § 1 14 
 
 Pratt V. Jones, 22 Vt. 341 506 
 
 Prentiss P. & S. Co. v. Whitman, 
 
 88 Md. 240 § igo 
 
 Prescott V. Roe, 9 Bing. 104 308 
 
 Preslar v. Stallworth, 37 Ala. 402.496 
 
 Preston v. Harrison, 9 Ind. i 514 
 
 Preston v. Perton, Cro. Eliz. 817. § 73 
 
 Price V. Cox, 83 N. C. 261 155 
 
 Price V. Boyd, i Dana 434 513 
 
 Price V. Hickok, 39 Vt. 292. .. .§ 17 
 
 Price V. Higgins, i Litt. 273 201 
 
 PRIMROSE V. GIBSON,, 2 Dow- 
 ling & Ryland, 193 196 
 
 Cited § 120 
 
 Prince v. Griffin, 16 Iowa 5.S2. ... 93 
 Public Schools v. Walker, 9 Wall. 
 
 603 105 
 
 Public Works 'v. Columbia Coll., 
 
 17 Wall. 521 70 
 
 Puff V. Huchter, 78 Ky. 146 474 
 
 PULLIAM V. OSBORNE, 17 
 
 Howard 471 454 
 
 Cited 464, § 194 
 
 PuUinger v. Van Emburgh, i 
 
 Harr. 457 229 
 
 Pullman's Car Co. v. Penn., 141 
 
 U. S. 18 74 
 
 Quinby v. Strauss, 90 N. Y. 664. 
 §§ 194, 195 
 
 RAHM V. SOPER, 28 Kan. 529- -269 
 
 Cited §132 
 
 Railway Co. v. Volkert, 58 Ohio 
 
 St. 362 §218 
 
 Ranlett v. Blodgett, 17 N.H.298.§ 153 
 
 Ransom v. Keys, 9 Cow. 128 472 
 
 Rathbone v. Terry, i R. I. 73 92 
 
 Rathbun v. Ranney, 14 Mich. 382. 357 
 Ravenas v. Green, 57 Cal.2s4.463, §192 
 Ray V. Birdseye, 5 Denio 619. ...456 
 Ray V. McDevitt, 85 N. W. 1086. § 153 
 Ray V. Womble, 56 Ala. 32. . .239, 240 
 Read v. Dupper, 6 Term Rep. 361.225 
 Read v. Sprague, 34 Ala. loi . . . § 164 
 Reddick v. Administrators of 
 
 Cloud, 7 III. 270 222 
 
 Redus V. Wofford, 4 S.& M. 579- § 192 
 
 Reed, Ex parte, 4 Hill 572 326 
 
 Reed v. Garvin, 12 S. & R. 100. .502 
 Reed v. Pruyn, 7 Johns. 426 
 
 212, 490, 492 
 
 REEVES V. SEBERN, 16 Iowa 
 
 234 456 
 
 Reid V. Hibbard, 6 Wis. 175. . . .§ 219 
 REID V. LINDSEY, 104 Penn. 
 
 St. 156 479 
 
 Cited 482, §§ 206, 207 
 
 Reid V. Ross, 15 Ind. 265 220 
 
 Reifsnyder v. Lee, 44 Iowa 102. . .415 
 Remington v. Howard Express 
 
 Co., 8 R. I. 406 165 
 
 Reply of the Judges, 33 Conn. 586. § 10 
 
 Rex V. Elkins, 4 Burr. 2129 86 
 
 Rex V. Vincent, Stra. 481 120 
 
 Reynolds v. Damrell (N. H.) 278 
 
 REYNOLDS v. HAINES, 83 
 
 Iowa 342 400 
 
 Cited 170 
 
 Reynolds v. Hosmer, 45 Cal, 616. § 223 
 Reynolds v. Rogers, 5 Ohio 174. .217 
 Reynolds v. Shuler, 5 Cowen 323.209 
 Rhodes v. Woods, 41 Barb. 471. § 155 
 Rice V. Beers, I Rice's Dig. of S. 
 
 Rice V. Norton, 19 Mo. 263 8 74 
 
 RICHARDS V. THE MORRIS 
 
 CANAL & BANKING CO., 20 
 
 N. J. Law 136 453 
 
 Cited. .464, 482, 483, §§ 194. 195, 206 
 Richardson V. Anderson, 4 Tex. 
 
 App. Civ. Cas. 493 416 
 
 Richardson v. Beldam, 18 111. 
 
 App. 527 5 
 
 Richardson v. McDougall, 19 
 
 Wend. 80 508 
 
TABLE OF CASES REPRINTED AND CITED. 
 Figures before §§ refer to pp. of cases ; after, to §§ of text. 
 
 27 
 
 Hichardson v. Rardin, 88 111. 124. § 183 
 Riddle v. Marshal, i Cranch C. C. 
 
 96 4S6 
 
 Hider v. Mason, 4 Sand. Ch. 351. .183 
 Hidgeway v. Bank of Tenn. 1 1 . 
 
 Humph. 523 8s 
 
 Riley V. Nance, 97 Cal. 203 477 
 
 Riordon v. Britten, 69 Tex. 
 
 198 §192 
 
 Ripley v. Warren, 2 Pick. 592. . . .277 
 Ritter V. Henshaw, 7 Iowa 97. .. .513 
 Roads V. Symmes, I Ohio 281....2.S7 
 Jloberts v. Caldwell, 5 Dana 512. . 92 
 ROBERTS V. CONNELLEE, 71 
 
 Texas 11 78 
 
 Cited 177, 267, 276, § 107 
 
 Robertson v. Kinkhead, 26 Wis. 
 
 560 32 
 
 Robinson v. Ensign, b Gray 300. § 155 
 JRobinson v. Howard, 7 Cush. 257.415 
 ROCCO V. PARCZV'K, 9 Lea 
 
 328 477 
 
 .Cited 482, §207 
 
 HOCKHILL V. HANNA, 15 
 
 How. 189 470 
 
 Cited § 202 
 
 iiockwell V. District Ct., 17 Colo., 
 
 118 §132 
 
 Rockwell V. Jones, 21 111. 279.... 180 
 Rockwood V. Davenport, 37 Minn. 
 
 533 II 
 
 Rockwood V. Varnum, 17 Pick. 
 
 289 462 
 
 Roderigas v. East River S. I., 76 
 
 N. Y. 316 .§ 13 
 
 Jioelofson v. Hatch, 3 Mich. 277.157 
 Rogers v. Brewster, 5 Johns. 125. § 159 
 Rogers v. Burton, 11 Wis. 50. ...251 
 Rogers v. Cherrier, 75 Wis. 54- •■357 
 Rogers v. Darnaby, 4 B. Mon.238.347 
 
 Rogers v. Dickey, 6 111. 636 456 
 
 Rook V. Wilmot, Cro. Eliz. 209. .205 
 Rooler v. Holly, 176 U. S. 398.. § 16 
 
 Rose V. Ford, 2 Ark. 26 87 
 
 Rosenthal v. Mastin Bank, 17 
 
 Blatchf. 318 399 
 
 Ross V. Luther, 4 Cow. 158 183 
 
 Roundtree v. Weaver, 8 Ala. 314 
 
 490, 492 
 
 Rowe v. Hardy, 97 Va. 674 § 21J 
 
 Rowe V. Kellogg, 54 Mich. 206... 168 
 Rowe V. Table &c. Co., 10 Cal. 441 85 
 
 Rowell V. Klein, 44 Ind. 290 87 
 
 RUFF V. RUFF, 6 Norris 333. . .121 
 
 Cited §81 
 
 Rumrill v. Huntington, 5 Day 163.224 
 
 Runlett V. Bell, 5 N. H. 433 352 
 
 Russell V. Dudley, 3 Met. 147 143 
 
 Russell V. Gibbs, 5 Cow. 390 464 
 
 RUSSELL V. LAWTON, 14 
 
 Wis. 202 330 
 
 Cited 329, 336, § 157 
 
 Rybot V. Peckham, i Term 729... 450 
 
 Ryan v. Lander, 89 111. 554 87 
 
 Ryan Drug Co. v. Peacock, 40 
 Minn. 470 477 
 
 Sabin v. Austin, 19 Wis. 421 356 
 
 Sackett v. Partridge, 4 Iowa 416. .168 
 Samples v. Walker, 9 Ala. 726... 294 
 Sanchez v. Carriaga, 31 Cal. 170.. 311 
 Sandburg v. Papineau, 81 111. 446. § 150 
 
 Sanders v. Rains, 10 Mo. 770 292 
 
 Sanders v. Ruddle, 2 T. B. Mon. 
 
 139 357 
 
 Sandlin v. Anderson, 76 Ala. 403 
 
 239, 294 
 
 Sands v. Matthews, 27 Ala. 399. ..399 
 Sanford v. Boring, 12 Cal. 539... 351 
 Sanford v. Nichols, 14 Conn. 324. 85 
 Sangster v. Commonwealth, 17 
 
 Grattan 124 327 
 
 Saracen, 3 W. Rob. 451 455 
 
 Satcher v. Satcher, 41 Ala. 26. .§ 38 
 Saunders v. Harris, 4 Humph. 72.322 
 Savacool v. Boughton, 5 Wend. 
 
 170 §152 
 
 Savage v. Best, 44 U. S. 1 11... §194 
 Savings & Loan Society v. Mult- 
 nomah Co., 169 U. S. 421 74 
 
 Schaeffer v. Marienthal, 17 Ohio 
 
 St. 184 §195 
 
 Schalk V. Kingsley, 13 Vroom 32. 68 
 Schiltz V. Roenitz, 86 Wis. 31 ... . 36 
 School Dist. No. 4 of Marathon 
 
 V. Gage, 39 Mich. 484 261 
 
 Schuster v. Rader, 13 Colo. 329. .178 
 Schuylkill County's App., 30 Pa. 
 
 St. 358 §202 
 
 Scott V. Hill, 2 Humph. 143 469 
 
 Scott V. Kirschbaum, 47 Neb. 331. § 134 
 
 Scott V. Peacock, I Salk. 271 214 
 
 SCOTT V. ROHMAN, 43 Neb. 
 
 618 405 
 
 Cited §§ 170, 180 
 
 Scriba v. Deanes, I Brock. 170. . 
 
 438, 442 
 
 Scrutchfield v. Sauter, 119 Mo. 
 
 615 §196 
 
 Searcy v. Platte Co., 10 Mo. 269. .165 
 Seaton v. Hamilton, 10 Iowa 394.273 
 Sedgwick V. Dawkins, 17 Fla. 
 
 811 § 12 
 
 Sellew V. Chrisfield, I Handy 87.. 166 
 Sessions v. Stevens, i Fla. 233... 202 
 Sexton V. Brown, 72 Minn. 371. § 179 
 
28 
 
 TABLE OF CASES REPRINTED AND CITED. 
 Titles in caps are cases reported; others, cases cited. 
 
 Sexton V. Nevers, 20 Pick. 451. .§ 157 
 
 Seymayne's Case, S Coke 91 318 
 
 Seyntloo's Case, Dyer Eliz. 224b 
 
 139, 436 
 
 Shacklett's Appeal, 14 Pa. St. 326. § 192 
 Shaefer v. Gates, 2 B. Mon. 453. . 93 
 Shand v. Du Buisson, L. R. 18 
 
 Eq. 283 399 
 
 Sharp V. Daugney, 33 Cal. S05... So 
 Sharpe v. Hunter, 7 Cold. 389... 
 
 456, § 192 
 
 Sharpe v. Speckenagle, 3 Serg. & 
 
 R- 463 472 
 
 Shattuck V. Cox, 97 Ind. 242 272 
 
 Shaver W. & C. Co. v. Halsted, 
 
 78 Iowa 730 § 192 
 
 Shea V. Johnson, loi Cal. 455. . .§ 134 
 
 Shealy v. Toole, 56 Ga. 210 203 
 
 Sheehy v. Graves, 58 Cal. 449. ..§ 157 
 Sheldon v. Blauvelt, 29 S. C. 453. 174 
 Shelton v. Tiffin, 6 How. 163. . .92, 94 
 Shepard v. Rowe, 14 Wend. 260. .211 
 Sherman v. Boyce, 15 Johns. 443.. 490 
 Sherman v. Brett, 7 Wis. 139. . . .§ 216 
 Sherrod v. Davis, 17 Ala. 312.... 474 
 Shields v. Lozear, 5 Vroom 496. . 68 
 Shirk v. Wilson, 13 Ind. 129... §192 
 
 Shriver v. Lynn, 2 How. 4? 93 
 
 ShuU V. Barton, 58 Neb. 741 § 195 
 
 Shumway v. Stillman,6 Wend. 447. 91 
 
 Sibbald v. U. S., 12 Pet. 480 105 
 
 SIDWELL V. SCHUMACHER, 
 
 99 111. 426 278 
 
 Cited 484, SOS, § 143 
 
 Sievers v. Woodburn Sarven 
 
 Wheel Co., 43 Mich. 275 408 
 
 Silvey v. PhoSnix, 94 Ga. 609. . .§ 192 
 Simmons v. Almy, 100 Mass. 239.229 
 Simon v. Adler-Goldman Com. 
 
 Co., s6 Ark. 292 §192 
 
 Simon v. Gurney, i Marsh. 237... 269 
 Simpson v. Hawley, I Maule & 
 
 Sel. 696 489 
 
 SINGLETARY v. CARTER, i 
 
 Bailey Law 467 364 
 
 Cited 484, SOS, §§ IS9, 1^4 
 
 Singley v. Warren, 18 Wash. 434. § 224 
 Skelly V. Westminster School 
 
 Dist., 103 Cal. 6s2 261 
 
 Skinner v. Moore, 2 D. & B. 138 
 
 §§17, 134 
 
 Skinner v. Stuart, 39 Barb. 206. .§ 194 
 Skipper v. Foster, 29 Ala. 330. .. .406 
 Slayton v. Chester, 4 Mass. 478. .. 87 
 
 Sly V. Finch, Cro. Jac. Si4 350 
 
 Small V. McChesney, 3 Cow. 19. . 7 
 SMALLCOMB v. CROSS, i 
 
 Lord Raymond 231 445 
 
 Cited. .339, 341, 447, 464, §§ 106, 195 
 
 Smith, In Re, 16 Johns. 102 166 
 
 Smith V. Blatchford, 2 Ind. 184. .203 
 
 Smith V. Buck, 22 Wis. S77 3SS 
 
 Smith V. Davis, I Wis. 447 389 
 
 Smith V. Herman, i Cold. 141 49° 
 
 Smith V. Hornback,3 A.K. Mirsh. 
 
 379 87 
 
 Smith V. Hughes, 24 111. 270 217 
 
 Smith V. Law, S Ired. L. 197 85 
 
 Smith V. McCutcheon, 38 Mo. 41S 61 
 Smith V. McLeod, 3 Ired. Eq. 390. S03 
 SMITH V. MENOMINEE CIR- 
 CUIT JUDGE, S3 Mich. s6o. . .379 
 
 Cited §174 
 
 Smith V. Niles, 20 Vt. 31S § I74 
 
 SMITH V. OSGOOD, 46 N. H. 
 
 178 318 
 
 Cited. .359, 464, §§ 153, 163, 204, 212 
 Smith V. Ratcliff, 66 Miss. 683... 403 
 Smith V. Schell, 13 Serg. & Rawle 
 
 336 297 
 
 Smith V. Wadleigh, 18 Me. 95. . .§ IS5 
 Smith Drug Co. v. Casper Drug 
 
 Co., s Wyo. Sio 167 
 
 Smock v. Dade, 5 Rand. 639 498 
 
 Snead v. M'Coull, 12 How. 407. . .472 
 Soaper v. Howard, 8s Ky. 2s5. .§ 190 
 SOUTHEREN v. REED, 4 Har- 
 ris and Johnson 307 494 
 
 Cited § 220 
 
 Southern Bank v. McDonald, 46 
 
 Mo. 3,1 ....§163 
 
 SOWLES V. HARVEY, 20 Ind. 
 
 217 ^27 
 
 Cited § 123 
 
 Spang V. Commonwealth, 12 Pa. 
 
 ^St 3s8 347 
 
 Spauldmg v. Lyon, 2 Abb. New 
 
 Cas. 203 482 
 
 Speake v. Richards, Hob. 206 491 
 
 Sperling v. Calfee, 7 Mont. 514.. 151 
 Splahn V. Gillespie, 48 Ind. 397.. 87 
 Spooner v. Rowland, 4 Allen 485.247 
 Sprague v. Bircliard, i Wis. 457- 313 
 Sprague v. Steam Nav. Co., 52 
 
 Me. S92 375 
 
 SPRING V. AYER, 23 Vt. 516. . .197 
 
 Cited 464, §§ 120, 202- 
 
 Staats V. Bristow, 73 N. Y. 264.. 166 
 Stadler v. Parmlee, 14 Iowa 175. .395 
 Stahlman v. Watson, 39 S. W 
 
 I0S5 §191 
 
 STANLEY V. NUTTER, 16 N. 
 
 H. 22 186 
 
 Cited. .218, 312, 328, 496, §§ 122,220 
 Stanton v. Boschert, 104 Mo. 393, § 192- 
 Starbuck v. Murray, 5 Wend. 148 
 
 91, 94, 98, 99^ 
 
 Starr v. Mayer, 60 Ga. 546 166 
 
TABLE OF CASES REPRINTED AND CITED. 
 Figures before §§ refer to pp. of cases ; after, to §§ of text. 
 
 29 
 
 Starr v. Moore, 3 McLean 354... 201 
 
 State V. Ailing, 12 Ohio 16 13 
 
 State V. Anone, 2 Nott & McC. 27 13 
 State V. Beall, 3 H. & M. 347. . . ,158 
 
 State V. Boyd, 63 Ind. 428 §156 
 
 State V. Brown, 44 Ind. 329.... § 9 
 State V. Brown, 11 Iredell 141.... 326 
 State V. Conover, 4 Dutcher 224.. 326 
 State V. Dillard, 3 Ired. L. 102. .§ 178 
 State V. Fitzpatrick, 64 Mo. 185.. 327 
 
 State V. Harris, 89 Ind. 363 § 156 
 
 STATE V. HEROD, 6 Blackford 
 
 444 221 
 
 Cited 328, § 124, IS7 
 
 State V. Jennings, 4 Ohio St. 418. ^327 
 
 State V. Long, 8 Iredell 415 326 
 
 State V. Moore, 19 Mo. 366 327 
 
 State V. Nelson, i Ind. 522 352 
 
 State V. O'Neill, 4 Mo. 221 85 
 
 State V. Weed, i Foster 262 233 
 
 State V. Yongue, 9 Rich. L. 443. .§156 
 State ex rel. Rogers v. Burton, 11 
 
 Wis. 50 251 
 
 Steamboat Raritan v. Smith, 10 
 
 Mo. 527 455 
 
 Steamboat Rover v. Stiles, S 
 
 Blackf. 483 455 
 
 STEELE V. THOMPSON, 
 
 ADM'R, 62 Ala.323 218 
 
 Cited 328, §§ 124, 125, 220 
 
 Steele v. Tutwiler, 68 Ala. 107.240, 294 
 Steen v. Norton, 45 Wis. 418. .32, 158 
 Stern v. Frazer, 105 Mich. 685... 359 
 Sternberg V. Shaffer, 11 Johns. 513. 21 1 
 Stevens v. Brown, 5 W. Va. 450. . yj 
 Stevens v. Gladding, 58 U. S.447.§ 173 
 Stevens v. Rowe, 3 Denio 327. . . .345 
 Stevenson v. McLean, 5 Hump. 
 
 332 17 
 
 Stewart v. Rutherford, 4 Jones L. 
 
 483 491 
 
 Stewart v. Stocker, 13 S. &: R. 
 
 199 184 
 
 Stewarts v. Reynolds, 4 Harr. 
 
 112 § 202 
 
 Stiff V. Fisher, 2 Tex. Civ. App^. 
 
 346 xvi 
 
 Stiff V. Fisher, 85 Texas 556 167 
 
 Stiles V. Davis, i Black 10 1. .362, §07 
 
 Stiles V. Murphy, 4 Ohio 92 443 
 
 Stinson v. Snow, 10 Me. 263 87 
 
 St. John V. Tombeckbee Bank, 3 
 
 Stew. 146 85 
 
 St. Joseph &c. Ry. Co. v. Casey, 
 
 14 Kan. 504 479 
 
 St. Joseph Mfg. Co. V. Miller, 69 
 
 69 Wis. 389 393 
 
 St. Louis V. Regenfuss, 28 Wis. 
 
 144 • 388 
 
 Stockton V. Stockton, 59 Ind. 574. 87 
 
 Stone V. Green, 3 Hill 469 183 
 
 Stone V. Wainwright, 147 Mass. 
 
 201 § 89 
 
 Story V. Kimball, 6 Vt. 541 § 13 
 
 STOUT V. FOLGER,34 Iowa 71.275 
 
 Stoyel V. Cady, 4 Day 222 515 
 
 Stratton v. Lyons, 53 Vt. 130. ... 87 
 Street v. Duncan, Ala. 23 South. 
 
 523 .483 
 
 Street v. Duncan, 117 Ala. 571. § 194 
 STROCK V. LITTLE, 45 Penn. 
 
 St. 416 148 
 
 Cited § 109 
 
 Stuarts V. Reynolds, 4 Harr. 112. .330 
 Sturdevant v. Tuttle, 22 Ohio St. 
 
 Ill §110 
 
 Sturges's Appeal, 86 Pa. St. 413. § 163 
 Sturges V. Crowninshield, 4 
 
 Wheaton 200 304 
 
 Sunderland v. Loder, 5 Wend. 58.472 
 Supervisors of Crawford Co. v. 
 
 Le Clerc, 3 Pin. 325 32 
 
 Sutherland v. Second Nat. Bank, 
 
 78 Ky. 250 250 
 
 SUTTON V. HASEY, 58 Wis. 
 
 556 198 
 
 Cited 464, §§ 120, 202 
 
 Suydam v. Hugs-erford, 23 Pick. 
 
 465 474 
 
 Sweetser v. Matson, 153 111. 568. .467 
 Swett V. Brown, 5 Pick. 178. .141, 143 
 
 Swift V. Agnes, 33 Wis. 228 356 
 
 Swift V. Cobb, 10 Vt. 282 87 
 
 Swiggart V. Harber, 4 Scam. 364. .180 
 Swope V. Ardery, 5 Ind. 213 227 
 
 Tabb V. Harris, 4 Bibb. 29 457 
 
 Taffts V. Manlove, 14 Cal. 47. . 
 
 ^ §§ 183, 192 
 
 Tams V. Bullitt, 11 Casey 308... 122 
 Tankersley v. Anderson, 4 Desaus. 
 
 45 498 
 
 Tarkinton v. Alexander, 2 Dev. & 
 
 Batt. 87 212 
 
 Tayloe v. Fen, i Dev. 295 211 
 
 Taylor v. Hancock, 19 La. An. 
 
 466 346 
 
 Taylor v. Horsey, 5 Harr. 131. . .§ 190 
 Taylor v. McDonald, 4 Ohio 150. .165 
 Taylor v. Ranney, 4 Hill 619.... 472 
 Taylor v. Runyon, 3 Iowa 474. . .§ 13 
 Taylor v. Waters, 5 Maule & Sel. 
 
 103 : 472.489 
 
 Teller v. Wetherell, 6 Mich. 46. .§ 65 
 Terrill v. Auchauer, 14 Ohio St, 
 
 80 §§43, 164 
 
30 
 
 TABLE OF CASES REPRINTED AND CITED. 
 Titles in caps are cases reported ; others, cases cited. 
 
 Thayer v. Southwick, 8 Gray 229.393 
 The . This word is omitted 
 
 from all titles where it is the first 
 
 word. The Bank v. Doe reads : 
 
 Bank v. Doe. 
 Thomas v. Glazener, 90 Ala. 537.512 
 Thomas v. Mahone, 72 Ky. iii.§ 140 
 Thomas v. Wooldridge, 2 Wood 
 
 667 407 
 
 Thompson v. Bickford, 19 Minn. 
 
 17 12 
 
 THOMPSON V. GAINESV'LE 
 
 NAT. BANK, 66 Texas 156... 395 
 
 Cited §170 
 
 Thompson v. Marsh, 14 Mass. 269.332 
 Thompson v. Silvers, 59 Iowa 
 
 670 §128 
 
 Thompson v. State, 3 Ind. App. 
 
 371 §152 
 
 Thompson v. Whitman, 18 Wall. 
 
 457 4 58, 85 
 
 Thorndike v. Ue Wolf, 6 Pick. 120.383 
 Thornton v. Damm, 120 Mich. 510.496 
 
 Tift V. Keaton, 78 Ga. '235 § 12 
 
 Tillotson V. Wolcott, 48 N.Y. 188.403 
 Tingley V. Bateman, 10 Mass. 343.250 
 Tobey v. Leonard, 15 Mass. 200. .342 
 Todd V. Hoagland, 36 N. J. L. 
 
 352 §157 
 
 TOLEDO, W. & W. RY. CO. v. 
 
 REYNOLDS, 72 111. 487 357 
 
 Tomlinson v. Collins, 20 Conn. 
 
 364, §§ 164, 184 
 
 Tomlinson v. Rowe, Lator's Sup. 
 
 to Hill & Denio 410 330 
 
 Townsend v. Jemison, 9 How. 407 '!^ 
 Townsend v. Libbey, 70 Me. 162. § 158 
 Townsend v. Smith, 20 Tex. 465.506 
 Trabant v. Rummell, 14 Ore. 17.. 174 
 Tracy v. Goodwin, 5 Allen 409 . . . 327 
 Trafton v. Rogers, 13 Maine 315. .278 
 Train v. Wellington, 12 Mass. 495.430 
 Trapnall v. Richardson, 13 Ark. 
 
 543 §202 
 
 Treadway v. Ryan, 3 Kan. 437. . . 162 
 
 Car. Rep. 75 162 
 
 Treat v. Dunham, 74 Mich. 114. .474 
 Treptow v. Buse, 10 Kas. 170.... 270 
 Trigg V. Lewis's Ex'rs, 3 Litt. 129 87 
 Trimble v. Breckenridge, 4 Bibb. 
 
 479 347 
 
 Triplett V. Scott, 12 111. 137 §218 
 
 Trovillo V. Tilford, 6 Watts 468.. 207 
 Troyer v. Schweizer, 15 Minn. 
 
 241 §224 
 
 Truett V. Legg, 32 Md. 147 § 9 
 
 Tucker v. Adams, 63 N. H. 361..! 173 
 Tucker v. Green, 27 Kan, 355 ... . 168 
 Tudor V. Taylor, 26 Vt. 444. .508, 513 
 
 TuUis V. Brawley, 3 Minn. 277... 87 
 Turner v. Austin, 16 Mass. 181... 430 
 Turner v. Collins, i Martin 369.. 158 
 Turner v. Fendall, i Cranch 117 
 
 423, 424 
 
 Turner v. Killian, 12 Neb. 580 Z2y 
 
 Union Bank v. Marin, 3 La. An. 
 
 34 § 7 
 
 Union Bank v. McClung, 9 
 
 Humph. 91 457 
 
 Union Pac. Ry. Co. v. Hand, 7 
 
 Kan. 380 5 
 
 U. S. V. The Brig Glamorgan, 2 
 
 Curtis, C. C. 236 105 
 
 U. S. V. Conyngham, 4 Dall. 358. .465 
 U. S. V. Graff, 67 Barbour 304. .. 158 
 United States v. Hine, 3 Mac- 
 Arthur 27 327 
 
 Upton V. Craig, |7 111, 257 §159 
 
 Utley V, Smith, 7 Vt. 154 §155 
 
 Vail V. Lewis, 4 Johns. 450 § 159 
 
 Vallee v. Dumergue, 4 Exch. 290. 63 
 Vanderhoof v. Prendergast, 94 
 
 Mich. 18 .' J.. ■■474 
 
 Van Fossen v. Anderson, 8 Iowa 
 
 251 364 
 
 Van Matre v. Sankey, 148 111. 536 35 
 Van Pelt v. Littler, 14 Cal. 194. . .327 
 Vattier v. Lyde, 6 Ohio 482. .512, 513 
 Vermont Ins. Co. v. Cummings, 
 
 II Vt. S03 §133 
 
 Viall V. Bliss, 9 Pick. 13 378 
 
 Vigers v. Aldrich, 4 Burr. 2482. ..472 
 Vinson v. Huddleston, 3 Tenn. 
 
 254 §192 
 
 Vinton v. Bradford, 13 Mass. 114, 
 
 332, 368 
 
 Vollmer v. C. & N. W. R. Co., 
 
 86 Wis. 30s 393 
 
 Von Hoffman v. City of Quincy, 
 
 4 Wall. 535 301 
 
 Voorhees v. Bank of U. S., 10 
 
 Peters 449 20, 28 
 
 WACHTER V. FAMOCHON, 
 
 62 Wis. 117 175 
 
 Wade V. Watt, 41 Miss. 248 201 
 
 Wahrenberger v. Koran, ,18 Texas 
 
 59 80 
 
 Wakefield v. Moore, 65 Ga. 268. .§ 8 
 Waldrop v. Friedman, 90 Ala. 157.294 
 
TABLE OF CASES REPRINTED AND CITED. 
 Figures before §§ refer to pp of cases ; after, to §§ of text. 
 
 31 
 
 WALES V. CLARK, 43 Conn. 
 
 i»3 362 
 
 Cited S iti2, 1&4 
 
 Walker v. Commonwealth, 18 
 Gratt. 13 217 
 
 Walker v. Shotwell, 13 S. & M. 
 
 544 §183 
 
 Walker v. Wonderlick, 33 Neb. 
 
 504 323 
 
 Wallace v. Barker, 8 Vt. 440. . . .§ 177 
 Wallace v. Lawyer, 54 Ind. 506. . 
 
 257, 258 
 
 Wallace v. McConnell, 13 Pet. 136.407 
 Wallis V. Savill, 2 Lutw. folio p. 
 
 1532 212 
 
 Waller v. Weedale, Noy 107 491 
 
 Walpole's Lessee v. Ink, g Ohio 
 
 142 § 202 
 
 Walworth v. Harris, 129 U. S. 365 ^^ 
 Waples P. G. Co. v. Basham, 9 
 
 Tex. Civ. App. 638 157 
 
 Ward V. Hatichet, l Keble 551.212, 491 
 Ward V.Howard, 12 Ohio St. 160. § 134 
 
 Warner v. Helm, 6 111. 220 513 
 
 Warwick v. Chase,23 Md. 154.157, 163 
 Washburn v. Sharpe, 15 Minn. 63 12 
 Washington A. & G. Co. v. 
 
 Sickles, 24 How. 33 129 
 
 WATERBURY v. BOARD OF 
 
 COMMISSIONERS, 10 Mont. 
 
 SIS 256 
 
 Cited 370 
 
 Waterman v. Haskin, II Johns. 
 
 228 470 
 
 Waters v. Harman,22 Wend. 566. § 106 
 Watkins v. Holman, 16 Pet. 25. . 52 
 WATSON v. REISSIG, 24 111. 
 
 282 509 
 
 Cited § 225 
 
 Watson V. Simpson, 5 Ala. 233. .§ 194 
 Watson V. Todd, 5 Mass. 273.... 368 
 Watson V. Watson, 6 Conn. 334. . 85 
 Watson V. Watson, 9 Conn. 141 . . 185 
 Watts V. Waddle, i McLean 200. 69 
 
 Watts V. Waddle, 6 Pet. 389 70 
 
 Vaughan v. Barkley, 6 Whar. 392 68 
 
 Webb V. Bailey, 54 N. Y. 164 179 
 
 Webb V. Miller, 24 Miss. 638 477 
 
 WEBBER V. BOLTE, 51 Mich. 
 
 113 390 
 
 Cited §§ 168, 170, 209 
 
 Webber v. Gay, 24 Wend. 485. .§152 
 Webber v. Hayes, 117 Mich. 256. § 166 
 
 Weber, In re, 59 N. W. 523 12 
 
 Weber v. Couch, 134 Mass. 26. . .§ 2ig 
 Weber v. Weitling, 3 C. E. Green 
 
 441 229 
 
 Webster v. Reid, 11 How. 437. ... 56 
 Weeks v. Pearson, 5 N. H. 324. .§ 73 
 
 Weimerster v. Manville, 44 Mich 
 408 276 
 
 Weimeister v. Singer, 44 Mich. 
 
 406 §131 
 
 Weisenfeld v. McLean, 96 N. 
 
 Car. 248 § 191 
 
 Welch V. Wallace, 8 111. 490 191 
 
 Weld V. Bartlet, 10 Mass. 470 345 
 
 Wellington v. Small, 3 Cush. 145 . § 194 
 WELLS V. AMERICAN EX- 
 PRESS CO., SS Wis. 23 31 
 
 Cited 78, 144, 273, S05, §55 
 
 Wells V. Bower, 126 Ind. 115.. .§§ 19s 
 Wells. V. Marshall, 4 Cow. 411.. 456 
 
 Welsh V. Hole, Doug. 238 225 
 
 Wendell v. Mugridge, 19 N. H. 
 
 109 87 
 
 West V. St. John, 63 Iowa 287. . . .469 
 West V. Thompson, 27 Vt. 613. .§ 155 
 Westcott V. Booth, 49 Ala. 182... 152 
 Westcott V. Sharp, 50 N.J.L. 392. § 134 
 Western R. R. Co. v. Thornton, 
 
 60 Ga. 300 250, 252 
 
 Weyth Hardware Co. v. Lang', 127 
 
 Mo. 242 76 
 
 Wheat V. P. C. & Ft. D. R. R. 
 
 Co., 4 Kan. 370 250 
 
 Wheeler v. Alderman, 34 S. Car. 
 
 533 499 
 
 Wheeler v. Farmer, 38 Cal. 203. ..162 
 Wheeler v. Hambright, 9 S. & R. 
 
 390 349 
 
 White V. Campbell, 25 Mich. 463.174 
 White V. Ledyard, 48 Mich. 264. . .412 
 White V. Simpson, 107 Ala. 380. . 
 
 220, §74 
 
 Whitehead v. Anderson, 9 Mees. 
 
 & W. 534 246 
 
 Whiting V. Bradley, 2 N. H. 79. . 
 
 Sii, 513 
 
 Whitney v. Butterfield, 13 Cal. 335.336 
 Whitney v. Munroe, 19 Me. 42. . .383 
 Whittier v. Heminway, 22 Me. 238.490 
 Whitwell V. Emory, 3 Mich. 84 
 
 „• §§7,13 
 
 Wight V. Warner, i Doug. 384 ... 25 
 Wilbraham v. Snow, 2 Keble 588.211 
 
 Wilcox V. Hunt, 13 Pet. 378 T^ 
 
 Wilcox V. Jackson, 13 Peters 498. 93 
 WILDER V. ELDRIDGE, 17 Vt. 
 
 226 229 
 
 Cited §128 
 
 Wilder v. Shea, 13 Bush 128 375 
 
 WILDER V. WEATHERHEAD, 
 
 32 Vt. 76s 484 
 
 • Cited 505, §§ 203, 211 
 
 Wilds V. Blanchard, 7 Vt. 138. .§ 177 
 
 WILEY V. SLEDGE, 8 Ga. S32. .163 
 
 Cited §112 
 
32 
 
 TABLE OF CASES REPRINTED AND CITED. 
 Titles in caps are cases , reported ; others, cases cited. 
 
 Wilkins v. Anderson, ii Pa. St. 2 
 
 399 § 13 
 
 Wilkins V. Carmichael, Doug. lOi . 225 
 Wilkins v. Ellett, g Wall. 740.... 74 
 Wilkinson's Appeal, 65 Pa. St. 189.184 
 Willard v. Sturm, 96 Iowa 555 ■ ■ ■ 77 
 Williams v. Benedict, 8 How. 107.455 
 Williams v. Cutteris, Croke Jac. 
 
 136 489 
 
 Williams v. Evans, 2 McCord 123.489 
 Williams v. Hayes, 68 Wis. 248. . § 13 
 Williams v. Herndon. 12 B. Mon. 
 
 484 §ISS 
 
 Williams v. Hogeboom, 8 Paige 
 
 469 183 
 
 WILLIAMS V. INT. GRAIN & 
 
 STOCK BOARD, 99 Mich. 80.276 
 Williams v. McCrade, 13 Minn. 
 
 46 II, 12 
 
 Williams v. Muthersbaugh, 29 
 
 Kan. 730 165 
 
 Williams v. Powell, loi Mass. 
 
 467 §160 
 
 Williams v. Rogers, 5 Johns. 167.. 424 
 Williamson v. Ball, 8 How. 566. . 93 
 Williamson v. Berry, 8 How. 495. 93 
 Williamson v. Bowie, 6 Munf. 76.459 
 Willman v. Freidman, 35 Pac. 37.167 
 WILLS V. CHANDLER, i Mc- 
 
 Crary 276 186 
 
 Cited 218, 484, §§ 118, 122, 200 
 
 Wilson's Appeal, 90 Pa. St. 370. .§ 190 
 Wilson V. Arnold, 5 Mich. 98. . .§ 136 
 
 Wilson V. Burney, 9 Neb. 39 496 
 
 Wilson V. Circuit Judge, 82 Mich. 
 
 169 165 
 
 Wilson V. Gilbert, 58 111. App. 65 1.469 
 Wilson V. Harris, 21 Mont. 374. . 
 
 372, 463 
 
 Wilson V. Harvey, 52 How. Prac. 
 
 126 167 
 
 Wilson V. Huston, 4 Bibb 322. . . .289 
 WILSON V. LOUIS COOK 
 
 MNFG. CO., 88 N. C. 5 iSS 
 
 Cited 157. § no 
 
 Wilson V. Milner, 2 Campb. 452. .322 
 Wilson V. Spring &c. Co., 10 Cal. 
 
 445 8s 
 
 Wilson V. Wilson, 8 GiU 192 157 
 
 Wilson Obear G. Co. v. Cole, 26 
 
 Mo. App. S 166 
 
 Wimbish v. Willoughby, I Plowd. 
 
 73 36s 
 
 Winchell v. Stiles, 15 Mass. 230. . 87 
 WINDSOR V. McVEIGH, 3 Otto 
 
 274 ^38 
 
 Cited : 78, 307, 464, 484, 505, §§ 19, 21 
 Wingate v. Haywood, 40 N. H. 
 
 437 93 
 
 Winston \. Ewing, i Ala. 129... 164 
 Wintringham v. Lafoy, 7 Cowen 
 
 735 209 
 
 Wiswall V. Sampson, 14 How. 52-455 
 Withers v. Brittain, 35 Neb. 436.. 158 
 Wolf V. Tappan & Co., 5 Dana 
 
 361 150, 151 
 
 Wolford V. Phelps, 2 J. J. Marsh. 
 
 31 ;.--347 
 
 Womack v. Stokes, 9 Tex. Civ. 
 
 App. 592 §133 
 
 Wood V. Colvin, 2 Hill 566. ...§ii8 
 
 Wood v. Doane, 20 Vt. 612 87 
 
 Wood V. Gamble, 11 Cush. 8. .. .§ 84 
 Wood V. Graves, 144 Mass. 365.! 159 
 
 Wood V. Lake, 13 Wis. 84 406 
 
 Wood V. Partridge, 11 Mass. 488.390 
 Wood V. Peake, 8 Johns. 69 215 
 
 275 436 
 
 Wood V. Torrey, 6 Wend. 562. .. .213 
 Wood V. Vanarsdale, 3 Rawle 401.207 
 Wood V. Warner, 2 McCarthy 81 . 68 
 Woodruff V. Taylor, 20 Vt. 65. . . . 45 
 WOODS V. MAINS, i G. Greene 
 
 275 436 
 
 Cited §189 
 
 Wooster v. Page, 54 N. H. 125. ..403 
 Worden v. Worthington, 2 Barb. 
 
 Sup. 368 233 
 
 Worthington v. Hanna, 23 Mich. 
 
 530 381 
 
 Wright V. Douglass, 10 Barb. 97. 98 
 Wright V. Marsh, 2 G. Greene 94. 93 
 
 Wright V. Young, 6 Ore. 87 217 
 
 Wright V. Westheimer, 2 Idaho 
 
 962 469 
 
 Wyer v. Andrews, 13 Me. 168. . . 
 
 §§ 163, 218 
 
 Wyckoff V. Bergen, Coxe 248. ...499 
 Wyman v. Halstead, 109 U. S. 654 73 
 Wyman v. Hichborn, 6 Cush. 264.390 
 
 Yates V. Joyce, 11 Johns. 136. . . .§ 195 
 YAZOO & MISS. VAL. RY. 
 CO. V. FULTON, 71 Miss. 385.202 
 
 Cited 434, § 120 
 
 Year Book, 33 Henry VI., p. 48. .472 
 YEAR BOOKS, 2 Henry IV. 14.434 
 Young V. Brehe, 19 Nev. 379. ...§ 88 
 Young V. Ross, 1 1 Foster 201 ... ! 250 
 
 Zeigler v. Vance, 3 Iowa, 528. . . .§ 7 
 Zimmerman v. Gaumer, 152 Ind. 
 
 552 496 
 
 Zion Church v. St. Peter's, 5 W. 
 
 & S. 215 87 
 
TEXT, 
 
vvi Lilly Hj U-t rnji suujji/iji. 
 
 INTRODUCTION, §§ 1-5. 
 
 1. NATURE AND ESSENTIALS OF JUDGMENTS, §§ 6-46— Cases 
 
 PP- 3-77- 
 
 1. Definitions and Distinctions, §§ 6-13 — Cases pp. 3-i3- 
 
 2. Jurisdictional Requisites, §§ 14-46 — Cases pp. 13-77. 
 
 2. KINDS OF JUDGMENTS, § 47— Cases p. 78. 
 
 3. THE RECORD OF THE JUDGMENT, §§ 48-60— Cases pp. 78-102. 
 
 1. Nature and Form, §§ 48-52 — Cases pp. 78-81. 
 
 2. Entering and Amending, § 53 — Cases pp. 81-83. 
 
 3. Essentials, §§ 54-56— Cases pp. 78-83. 
 
 4. Conclusiveness, §§ 57-60 — Cases pp. 83-102. 
 
 4. VACATING, AMENDING, AND MODIFYING JUDGMENTS, §| 
 
 61-66 — Cases pp. 103-108. 
 
 5. THE EFFECT OF JUDGMENTS, §§ 67-8c^-Cases pp. 109-135. 
 
 1. Foundation and Origin of Estoppel by Judgment, §§ 68-70 — 
 
 Cases pp. 109-iig. 
 
 2. What Matters are Res Judicata, §§ 71-77 — Cases 123-135. 
 
 3. Parties and Privies, §§ 78-82 — Cases pp. 109-122. 
 
 4. What is a Sufficient Judgment, §§ 83-89— Cases pp. iog-122. 
 
 6. SATISFACTION OF JUDGMENTS, §§ 90-225— Cases pp. 137-S14. 
 
 A. Processes to Obtain Satisfaction, §§ 91-212 — Cases pp. 137-487. 
 
 1. Nature of the Processes^ §§ 91-104 — Cases pp. 137-144. 
 
 2. Issuance of the Processes, §§ 105-147 — Cases pp. 145-298. 
 
 1. What is Issuing the Process, § 106 — Cases pp. 145-147. 
 
 2. On What Demands Processes May Issue, §§ 107-112 — 
 
 Cases pp. 147-177. 
 
 3. At What Stage of the Case Processes May, be Issued, 
 
 §§ 113-119— Cases pp. 177-195. 
 
 4. Effect of Use of One Process on Right to Another, § 120 
 
 — Cases pp. 195-217. 
 
 5. Who May Demand and Control the Processes, §§ 121-12S 
 
 — Cases pp. 218-227. 
 
 6. Against Whom the Processes May be Issued, §§ 126-129 
 
 — Cases pp. 228-266. 
 
 7. What Courts and Officers May Issue the Processes, §§ 
 
 130-133 — Cases pp. 267-273. 
 
 8. Form and Essentials of the Papers, §§ 134-147 — Cases pp. 
 
 273-298. 
 
 3. Execution of the Processes, §§ 148-212 — Cases pp. 299-487. 
 
 1. Legislature's Power to Change the Remedy, § 149 — Cases 
 
 pp. 299-306. 
 
 2. Power of the Court and Judge to Control, § 150 — Cases 
 
 pp. 307-3II. 
 
 3. Officers' Rights and Liabilities, §§ 151-160— Cases pp. 
 
 312-352. 
 
 4. Where the Processes May be Executed, § 161— Cases pp. 
 
 353-359- 
 
 5. When the Processes May be Executed, §§ 162-163— Cases 
 
 P- 359- 
 
 6. Who May Execute the Processes, § 164— Cases pp. 360- 
 
 369. 
 7-8. What May be Taken under the Processes, §§ 165-180— 
 Cases pp. 370-427. 
 
 9. The Levy and Service, §§ 181-188— Cases pp. 427-434. 
 
 10. Liens under Judgments, Attachments, Garnishments, and 
 
 Executions. §§ 189-195— Cases pp. 434-463. 
 
 11. How the Lien Lost after Levy, §§ 196-207— Cases pp. 464- 
 
 483. 
 
 12. Foreclosure of the Lien, §§ 208-212— Cases pp. 484-487. 
 
 B. What Constitutes a Satisfaction, §§ 213-221— Cases pp. 488-504. 
 
 C. Rights After Satisfaction, §§ 222-225— Cases pp. 505-514. 
 
INTRODUCTION. 
 
 Outline of Law, § i. 
 
 Groups of Adjective Law, §2. 
 
 What Works Treat of Each Group, § 3. 
 
 Scope of This Treatise, § 4. 
 
 Plan of Treatment, § 5. 
 
 Outline of Law. 
 
 § I. On beginning this study, let us take our latitude and 
 longitude. In his universally admired commentaries, designed 
 to cover the whole field of the municipal laws of England, Sir 
 William Blackstone considered: i, the general nature of the 
 laws; and 2, the object of laws, or their subject-matter. The 
 student will remember that the object of all municipal laws is 
 either: i, the ascertainment of rights, their nature, under 
 what circumstances they exist, and how they are acquired and 
 lost ; or, 2, of violations of those rights and the recognition or 
 establishment of remedies therefor. Herein, we will give 
 attention principally to questions arising in the use of these 
 remedies. 
 
 Groups of Adjective Law. 
 
 § 2. All of the questions that can arise out of the pursuit 
 of remedies in the courts may properly be considered in one or 
 another of the following groups: 1, the process and service 
 of it to commence the action, and the pleadings to reach 
 an issue; 2, the trial of that issue, and proceedings to obtain a 
 new trial, involving, 3, the rules governing the production and 
 use of evidence to establish the claim; 4, the judgment of the 
 law pronounced by the court; and, 5, proceedings to carry that 
 judgment into effect. 
 
INTRODUCTION. 
 
 36 
 
 What Works Treat of Each Group. 
 
 § 3. The questions falling within the first two of these 
 groups are usually treated in works on pleading and prac- 
 tice ; the third, in treatises on evidence ; the fourth, in treatises 
 on judgments; and the questions falling within the last group 
 have usually been considered separately in treatises on attach- 
 ments, garnishments, and executions. 
 
 Scope of this Treatise. 
 
 § 4. I shall presume that the reader of the following 
 pages is fully prepared upon the questions falling within the first 
 three of these groups, and is now ready to proceed to the inves- 
 tigation of those questions which arise after verdict, or in some 
 ancillary proceeding previously instituted in anticipation of the 
 judgment and with a view to provide means of rendering effect- 
 ual whatever judgment might finally be obtained. Our theme 
 will, therefore, be of judgments and the means of enforcing 
 them. 
 
 Plan of Treatment. 
 
 § 5. To some it might seem necessary to consider some 
 of the means of enforcing judgments — such as attachments and 
 garnishments — before treating of the judgments themselves; 
 since these means of enforcement are set in motion before the 
 judgment is obtained, and usually at the commencement of the 
 action. But I am convinced that the general principles under- 
 lying all, and the questions commonly arising in the use of all, 
 of the means of enforcement are so nearly the same, that it is 
 best to depart slightly from the natural order of sequence by 
 considering all the means of enforcement together in treating 
 of the satisfaction of judgments. I shall, therefore, treat our 
 whole subject under the title of judgments, as follows: i, 
 nature; 2, kinds; 3, record; 4, modification; 5, effect; and, 6, 
 satisfaction. This scheme of treatment must be mastered if 
 the student would hope to understand this treatise, for the 
 matter is herein presented under this plan. 
 
1. NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 Definitions and Distinctions, §§ 6-13. 
 Definitions, §§ 6, 7. 
 Orders Distinguished, § 8. 
 Neither Major nor Minor but Conclusion, § 9. 
 Opinion Distinguished, § 10. 
 Not a Contract, § 11. 
 Records Distinguished, §§ 12, 13. 
 
 Jurisdictional .Requirements, §§ 14-46. 
 By the Court, § 14. 
 
 Upon the Matter Contained in the Record, § 15. 
 Facts Essential to Jurisdiction of the Thing, § 16. 
 Judgments in personam on Substituted Service, § 17. 
 Necessity of Service to Validity of Judgments in rem, § 18. 
 Effect of Denial of Right to Hearing in Either Case, § 19. 
 Effect of Acts of the Parties or of Other Courts, § 20. 
 Effect of Irregularity, § 21. 
 
 How Jurisdictional Questions May be Raised, § 22. 
 True Criterion of Validity on Collateral Attack. §§ 23-30. 
 Whether Irregularities Should Avoid Collaterally, §§ 31-45. 
 Summary of Essentials of Judgments, § 46. 
 
 Judgments Defined. 
 
 Judgments are the Sentence of the Law Pronounced by 
 the Court upon the Matters Contained in the Record.^ 
 
 § 6. This is Blackstone's definition, which has been fre- 
 quently quoted with approval. Several other definitions are 
 given below, many of them very good and better adapted for 
 imparting information than his ; but his is chosen for our pur- 
 's Bl. Com. 395- 
 
 Treatises on Judgments. Judgments, A. C. Freeman, 4th ed., 2 vols., 
 1892, Bancroft, Whitney & Co., San Francisco; Judgments, H. C. Black, 
 2 vols., 1891, West Pub. Co., St. Paul; Legal Judgments, J. Ram, i vol., 
 Eng., Amer. ed. by J. Townsend, 1871, Baker, Voorheis & Co., New York; 
 Foreign Judgments, F. T. Piggott, i vol., Eng., 1884, Wm. Clowes & Sons, 
 London; Executions and Judgments, P. Bingham, Eng., 2d ed., i vol., 
 183s, 13 Law Library ; Judgments, J. W. Carleton, i vol., Irish, 1844. See 
 also numerous articles in Am. & Eng. Ency. Law, and Ency. PI. & Pr., 
 and many excellent treatises on parts of the subject mentioned later as 
 we come to deal with those topics. Blank and Freeman are both held in 
 high favor by the bar, but Mr. Freeman s long training in this particular 
 line gives his work the preference. 
 
§ 7 JUDGMENTS. 38 
 
 poses, because it is believed to embrace in legal parlance the 
 substance of all the others; and, moreover, it is short, and 
 exceedingly suitable for discussion in detail, to which let us 
 now proceed. 
 
 § 7. Other Definitions. The decision, or sentence of the 
 law, pronounced by a court or other competent tribunal, upon the 
 matter contained in the record.^ 
 
 The decision, or sentence of the law, given by a court of 
 justice, as the result of proceedings instituted for the redress of 
 injury.' 
 
 The decision or sentence of the law, given by a court of 
 justice or other competent tribunal, as the result of proceedings 
 instituted therein for the redress of an injury.* 
 
 The determination or sentence of the law, pronounced by a 
 competent judge or court, affirming that, upon the matters sub- 
 mitted for its decision, a legal duty or liability does or does not 
 exist.^ 
 
 The determination of some judicial tribunal created by law 
 for the administration of public justice according to law, and is 
 in strictness the determination of the law." 
 
 An adjudication of the rights of the parties in respect to the 
 claim involved.' 
 
 The final consideration and determination of a court of com- 
 petent jurisdiction upon the matters submitted to it.^ 
 
 The conclusion of law upon facts found or admitted by the 
 parties, or upon their default in the course of a suit.*^ 
 
 The decision of a controversy, given by a court of justice, 
 between parties who do not agree." 
 
 The end of the law in regard to the controversy.^ 
 
 299. 
 
 Treeman on Judgments § 2. 
 
 '11 Petersdorf Abr. 641, title, judgment; Blaikie v. Griswold, 10 Wis. 
 
 *Bouvier Law Die. 
 
 'Black on Judgments § i. 
 
 "Blood V. Bates, 31 Vt. 150. 
 
 'McNulty V. Hurd, 72 N. Y. 521. 
 
 'Whitwell V. Emory, 3 Mich. 84; 59 Am. Dec. 220. 
 
 '"Tidd Pr. 930. 
 
 "Union Bank v. Marin, 3 La. An. 34. 
 
 'BIystone v. Blystone, 51 Pa. St. 373. 
 
3\) NATURE AND ESSENTIALS. § 8 
 
 The very voyce of law and right.^ 
 
 It is the final adjudication of a civil action, — not the resolve 
 or decree of the court, but the sentence of the law pronounced by 
 the court in the action or question before it.^ 
 
 Orders Distinguished. 
 
 § 8. Blackstone's definition expresses more than appears 
 at first blush. He says the judgment is the sentence because 
 it should be distinguished from the numerous orders that may 
 be made during the progress of the cause, or after judgment, 
 such as adjournments, orders to give security for payment of 
 costs, and the like ; which are not judgments in the strict sense, 
 but only orders, though they are sometimes called interlocutory 
 judgments.* In several of the states orders that judgment be 
 so and so have been held not to be judgments, but only direc- 
 tions to the clerk to enter judgment ; and on this technical dis- 
 tinction appeals have been dismissed, executions quashed, and 
 proceedings thereon held void on collateral attack. 
 
 Neither the Major nor the Minor, but the Conclusion. 
 
 § 9. Judgments are the sentence, the determination, the 
 conclusion, which- stated in a syllogism, of which the law and 
 the facts make the other members, would look like this : i , 
 (the law) he who assaults and beats another is liable to the 
 injured party for full compensation in money; 2, (the facts) 
 A, the defendant, assaulted and beat B, the plaintiff, and $50 
 would be full compensation; 3, (the judgment) it is therefore 
 considered by the court, that the said plaintiff do recover of 
 the said defendant the said sura, etc." The findings of law by 
 the court do not constitute the judgment, but only the first 
 proposition of the syllogism of which the judgment is the last." 
 Again, the finding of facts when made by the court is no more 
 
 ''Coke Litt. 39a. 
 
 "Zeigler v. Vance, 3 Iowa 528. 
 
 *Loring v. lUsley, i Cal. 24; Wakefield v. Moore, 65 Ga. 268. 
 
 "3 Blackstone's Com. 396; Black on Judgments § i. 
 
 "Judgments, 11 Ency. PI. & Pr. 828. 
 
§ 10 JUDGMENTS. 40 
 
 the judgment than is the verdict of a jury, but is only the sec- 
 ond proposition of the syllogism.' The judgment is the final 
 proposition, the sentence. 
 
 The Opinion Distinguished. 
 
 § lo. The judgment is the sentence; that is, the sentence 
 is the judgment. The reasons given for rendering a judgment 
 and the opinion of the court filed with the judgment are no part 
 of it ; and, therefore, the parties are not concluded thereby from 
 contesting such matters in another action." If the record 
 speaks in language free from ambiguity its effect cannot be 
 qualified by anything stated in the opinion. ° 
 
 Not a Contract. 
 
 § II. Speaking of judgments as sentences also reminds 
 us that they arise from the edict of the law, not from the con- 
 sent of the parties, which distinguishes them from contracts. 
 A judgment is a sentence, not a contract. No consideration 
 is necessary to make it enforcible, and it is not based upon 
 any supposed capacity to contract or consent of the parties. 
 The states are forbidden by the United States Constitution 
 to pass any law impairing the obligation of contracts, and the 
 fact that the contract has been reduced to judgment does 
 not enable the states to impair the new obligation.^ But a 
 judgment for a tort has several times been held by the Supreme 
 Court of the United States not to be within the protection of 
 the constitutional prohibition, and the states may pass laws 
 impairing its obligation. "Judgments for torts are usually 
 
 'State V. Brown, 44 Ind. 329. Therefore, an execution issued on the ver- 
 dict without judgment was quashed on motion. Truett v. Legg, 32 Md. 147. 
 
 "Burke v. Laforge, 12 Cal. 403; Davidson v. Carroll, 23 La. An. 108.' 
 
 Opinions given by the Supreme Court to the governor or legislature 
 on request are not judgments but mere opinions, and bind no one not 
 even the courts giymg them. Reply of the Judges, 33 Conn. 586, In Re 
 Chapter 6, 8 S. Dak. 274, 66 N. W. 310. 
 
 ^New Orleans M. C. R. Co. v. City of New Orleans, 14 Fed. Rep vtk 
 276; Keane v. Fisher, 10 La. An. 261. 
 
 'Freeman on Judgments, §4; Black on Judgments § II. 
 
41 NATURE AND ESSENTIALS. § 12 
 
 the result of violent contests, and as observed by the court 
 below, are imposed upon the losing party by a higher authority 
 against his will and protest. The prohibition of the Federal 
 Constitution was intended to secure the observance of good 
 faith in the stipulation of the parties, against any state action. 
 Where a transaction is not based upon any assent of the par- 
 ties it cannot be said that any faith is pledged with respect 
 to it."^ Yet statutes with reference to contracts are often 
 with justice held to extend to judgments, as being embraced 
 in the legislative intent.' 
 
 The Record Distinguished. 
 
 § 12. The judgment is the sentence of the law pro- 
 nounced. The pronouncement from the bench is very infor- 
 mal, merely indicating the nature of the judgment given ; and 
 it is the duty of the attorney for the successful party to prepare 
 the formal draft where a formal record of each case is made 
 up and filed.* Though pronounced by the court, judgments 
 ar£ recorded by the clerk of the court ;^ and it often seems as 
 though the judgment is not the sentence of the law pronounced 
 by the court, but the record of that sentence as made by the 
 clerk. For, till the record is made there is, according to the 
 opinion of many courts, nothing to support a writ of error 
 to reverse the judgment." nor execution to enforce it.^ Ordi- 
 narily it can speak but by the record, the only competent proof' 
 of it.^ A rule which generally prevails is that in other pro- 
 
 ^Freeland v. Williams, 131 U. S. 405, 414. 
 
 "Freeman on Judgments § 4 ; Black on Judgments § 7. 
 
 'Stephen PI. 112; Jasper v. Schlessinger, cases 3. 
 
 °Tidd Pr. 930 ; Black on Judgments § 1 10 ; Freeman on Judgments § 40. 
 
 A judgment record entered by plaintiff's attorney by direction of the 
 court is valid. Tift v. Keaton, 78 Ga. 235. 
 
 °Onderdonk v. San Francisco, 75 Cal. 534; Sedgwick v. Dawkins, 17 
 Fla. 811; Ah Kle v. McLean, 2 Idaho 812; Newbould v. Stewart, 15 Mich. 
 ISS; Croft V. Miller, 26 Minn. 317; Dale v. Copple, S3 Mo. 321; Murphy v. 
 King, 6 Mont. 30; Delaware L. & W. Ry. Co. v. Burkard, 109 N. Y. 648; 
 Murray v. Scribner, 70 Wis. 228. 
 
 'Locke V. Hubbard, cases, 9 ; Freeman on Executions § 24. 
 
 'See post §§ S3, 60. 
 
■§ 13 JUDGMENTS. 42 
 
 ceedings the record imports absolute verity, and cannot be con- 
 tradicted." The evidence that a judgment was rendered, and 
 what it was, does not reside in the memory of the judge, nor 
 in the docket kept by him for his own convenience and not 
 required by law to be kept, but in the record which the law 
 requires the clerk to keep. Persons acting in reliance on the 
 clerk's record will be protected, though the record be not 
 according to the fact,^ as appears by the files in the case.^ 
 
 § 13. Yet it is believed that the judgment is the sentence 
 of the law pronounced by the court. For when the clerk made 
 an entry of final judgment without any judgment having been 
 ill fact pronounced by the court, and the court afterward pro- 
 ceeded to pronounce judgment, and have it recorded in utter 
 disregard of the prior unauthorized entry, the court's judg- 
 ment was affirmed on writ of error." In cases in which the 
 absence of judicial action has appeared in a collateral proceed- 
 ing the entry made by the clerk has been treated as an absolute 
 nullity." If no sentence was ever pronounced there is no 
 judgment although the clerk has assumed to enter one. The 
 judgment is the judicial act of the court; the record is the min- 
 isterial act of the clerk. Orders vacating and annulling such 
 false entries after it was too late to have vacated a judgment 
 have often been approved. Though the entry existed there 
 never had been any judgment.' Even though a judgment had 
 been pronounced, if the clerk has incorrectly recorded the sen- 
 tence or any of the proceedings in the cause, the court will cor- 
 rect the error at any time. It is never too late to correct the 
 
 "Black on Judgments §§275, 276; Freeman on Judgments §§ 130, 134. 
 
 'Black on Judgments § 169; McCormick v. Wheeler, 36 111. 114; Amer- 
 ican Ex. Bank v. Moxley, 50 111. App. 314. 
 
 ''Ninde v. Clark, 62 Mich. 124, 4 Am. St. 823, 28 N W 76; 
 
 ''Kayser v. Hall, 85 111. 511. 
 
 ^Phelps V. Hawkins, 6 Mo. 197; Roderigas v. East River S. I., 76 N. 
 Y. 316, 32 Am. Rep. 309. 
 
 °Lee V. CarroUton Sav. & L. Assn., 58 Md. 301; Barefield v. Bryan, 8 
 Ga. 463. See especially Butts v. Armor, 164 Pa. St. 73, 30 Atl. 357. 
 
43 NATURE AND ESSENTIALS. § 14 
 
 errors made by the clerk in making the record." The force of 
 this statement is appreciated when we remember that,, at the 
 common law after the term at which judgment is pronounced, 
 .p.nd under the statutes after the specified time, the court cannot 
 modify the pronounced judgment and change the record so 
 .as to conform to the modification;^ and though the clerk has 
 not yet made up the record, still the pronounced judgment 
 cannot be later changed.* When by reason of the death of 
 the officer whose duty it was to record the judgment," or from 
 some other cause,^ the judgment has never been recorded, other 
 ■courts have received the files in the case and the minutes made 
 Tjy the clerk or judge to prove the judgment, notwithstanding 
 the general rule that judgments can be proven only by the 
 record thereof.^ 
 
 By the Court. 
 
 § 14. We come now to consider the next phrase — by the 
 ■court. Blackstone, adopting Coke's definition, says, "A court 
 is a place where justice is judicially administered."^ "But 
 this definition obviously lacks fullness; it is limited to the 
 place of the court in its expression. In addition to the place, 
 
 "Ecker v. First Nat. Bank, 64 Md. 292; Chase v. Whitten, 62 Minn. 
 498, 6s N. W. 84; Cohn v. Scheuer, 115 Pa. St. 178, 8 Atl. 421; Williams 
 V. Hayes, 68 Wis. 248, 32 N. W. 44 ; Dunham v. South Park, 87 111. 185 ; 
 Freeman on Judgments 1 73, and cases cited. 
 
 'Tidd Pr. 712, 942; 3 Blackstone's Com. 407; 15 Ency. PL and Pr. 202 
 at seq. ; Freeman on Judgments §§69, 70; Black on Judgments § 154; Al- 
 ibers V. Whitney, I Story 310; Federal Cas. No. 137; Boland v. Benson, 54 
 Wis. 387; Whitwell v. Emory, 3 Mich. 84. 
 
 'Casement v. Ringgold, 28 Cal. 335. But see Edwards v. Evans, 61 
 111. 492. The time given within which to appeal is similarly reckoned from 
 the "rendition of the judgment." "The record which was afterwards filed 
 was not the judgment, but only a written memorial of the judgment which 
 had been previously rendered." Bronson J. in Lee v. Tillotson, 4 Hill 
 (N. Y.) 27; quoted in Gray v. Palmer, 28 Cal. 416. 
 
 "Davidson v. Slocomb, 35 Mass. (18 Pick.) 464: Story v. Kimball, 6 
 Vt. 541; Baldwin v. Prouty, 13 Johns. (N. Y.) 430; Wilkins v. Anderson, 
 1 1 Pa. St. 399. 
 
 'Hickey v. Hinsdale, 8 Mich. 267; Dyson v. Wood, 3 Barn. & Cress. 
 (10 E. C. L.) 449; Justice of Peace, 12 Ency. PI. & Pr. 730. 
 
 "Cadwell V. Dullaghan, 74 Iowa 239; Taylor v. Runyon, 3 Iowa 474; 
 Hinson v. Wall, 20 Ala. 298. 
 
 '3 Blackstone's Com. 23. 
 
§ 15 JUDGMENTS. 44 
 
 there must be the presence of the officers constituting the court, 
 the judge or judges certainly, and probably the clerk author- 
 ized to record the action of the court; time must be regarded, 
 too, for the officers of the court must be present at the time and 
 place appointed by law in order to constitute a court. To give 
 existence to a court, then, its officers and the time and place of 
 holding it must be such as are prescribed by law."* From the 
 foregoing we may sum up the essentials of a court as follows : 
 I, The business of the body must be the judicial administration 
 of justice ; 2, it must be a body created by law ; 3, it is a court 
 only when sitting at the place appointed by law, if any be 
 appointed; 4, it is a court only when sitting at the time ap- 
 pointed by law, if any be appointed ; 5, it can act only through 
 its proper officers. 
 
 Upon the Matter Contained in the Record. 
 
 § 15. Judgments are the sentence of the law pronounced 
 b}'' the court tupon the matter contained in the record. The 
 italicized phrases signif}'- that in so far as the pronouncement 
 is upon matters not contained in the record, that is, not before 
 the court, it is no judgment ; and in an action upon it the proper 
 plea would be nid tiel record, that there is no such record. 
 Moreover, no court is so constituted that every sort of contro- 
 versy can be brought before it ; and even as to matters that can' 
 be and are brought before it, the nature of the judgment which 
 it can pronounce is limited by the law creating the court and 
 declaring what sorts of judgments it shall have power to ren- 
 der. Therefore, to constitute a judgment : i, the matter must 
 be such as the court can pronounce upon; 2, must be in court 
 to be pronounced upon; and, 3, the pronouncement must be 
 such as the law creating the court enables it to make. Much- 
 
 'Hobart v. Hobart, 45 Iowa 501. 
 
 The Clerk being Absent during a part of the trial was held, as it seems- 
 to me properly, not even to make the judgment voidable on error and 
 exception, the judge having designated another to perform the duties of the 
 clerk in his absence. Mealing v. Pace, 14 Ga. 627. 
 
45 NATURE AND ESSENTIALS. § 16 
 
 confusion has resulted from calling possession of these essen- 
 tials jurisdiction of the subject-matter without indicating which 
 of the three is referred to. Again, if the judgment is to bind 
 anyone personally, which is what we mean when we say it is 
 a judgment in personam, that person must be before the court. 
 In order to have this, two things are essential: i, the person 
 must be s'uch a one as can come or be brought before that court ; 
 and,. 2, he must have been brought before it. Here, again, 
 confusion has been introduced by speaking indiscriminately of 
 possession of these essentials as jurisdiction of the parties. 
 
 Facts Essential to Jurisdiction of the Thing. 
 
 § 1 6. In a double sense, the matter must be brought 
 before the court, i. The court must be asked to adjudicate 
 concerning it, as a cause of action or defense. For example, 
 the court could not decree a divorce between parties on a bill 
 simply asking it to partition property held by them as tenants 
 by entirety. This we may call presenting the matter in the 
 pleadings. To give the court jurisdiction in this sense, the rule 
 is this : "Can it be gathered from the allegations, either directly 
 or inferentially, that the party was seeking the relief granted, 
 or that he was entitled thereto ? * * * It is not necessary that 
 any material allegation should be sufficient in law, or that it 
 should even tend to show facts that are sufficient.'"* 2. But in 
 many cases the matter must also be brought before the court 
 in another sense. If the matter in controversy be a corporeal 
 thing it can be bound by the judgment only by first being 
 brought within the court's power. The parties being in court 
 might be bound though the property was beyond the court's 
 reach." And to put the property in the court's power it is not 
 necessary that it shall have been actually seized by the court's 
 officer. When the property is personalty it is enough to notify 
 the party in possession to hold it subject to the court's order. 
 
 "Van Fleet on Collateral Attack § 61. 
 "Lindley v. O'Reilly, cases 65. 
 
§ 17 JUDGMENTS. 4& 
 
 as is the common practice in all garnishment proceedings. Yet 
 this may justly be said to make him an officer of the court. If 
 the property he land it is enough that an entry be made by the 
 proper officer in the public records specifying the attachment 
 or claim as the statute requires. Even that is unnecessary in 
 proceedings to foreclose a mortgage on land within the court's 
 territory or to remove a cloud from the title. The non-resi- 
 dent claimants may be served by publication, or in such manner 
 as the statute may direct ; and no preliminary seizure is neces- 
 sary to give the court jurisdiction of the thing.' But unless 
 the property be within the court's territory and be a part of the 
 subject matter of the suit it will not be bound by the judgment.* 
 
 Judgments in Personam on Substituted Service. 
 
 § 17. As to getting the persons into court, that may be 
 done by their voluntary appearance or by use of the court's 
 process. Tt has been thought in England that personal serv- 
 ice out of the state, or notice within the state to some agent or 
 member of the family, or seizure of property, or proclamation 
 in the market square, were a sufficient compliance with "the 
 law of the land" within the meaning of the Magna Charta;* 
 and at one time this idea prevailed to a considerable extent in 
 this country.^ But when the United States Constitution was 
 so amended as to forbid depriving any person of life, liberty, 
 or property without "due process of law," which is merely an 
 adoption of the equivalent clause in the Magna Charta, tlie 
 Supreme Court of the United States was made the final arbiter 
 as to the meaning of the provision; and that court fully and 
 finally exploded the whole doctrine in the now celebrated case 
 of Pcnnoyer v. A^eff.^ Personal service within the jurisdic- 
 
 'Roller V. Holly, 176 U. S. 398. 
 'Pennoyer v. Neff, cases 48. 
 
 •Douglas V. Forrest, 4 Bing. (13 Eng. Com. Law) 693. 
 ^Skinner v. Moore, 2 Dev. & Bat. (N. Car.) 138, 30 Am. Dec. 155- 
 Price v. Hickok, .39 Vt. 292; Hurlbut v. Thomas, 55 Conn. 181, 10 Atl. 556'. 
 ^95 U. S. 714, cases 48. 
 
47 NATURE AND ESSENTIALS. § 1& 
 
 tion is therefore indispensable to a valid judgment in personam 
 in the United States now, in the absence of a voluntary appear- 
 ance in person or by attorney and submitting to the jurisdiction 
 of the court. 
 
 Necessity of Service to Validity of Judgments in Rem. 
 
 § 1 8. There has often been a failure to distinguish in this 
 respect between a proceeding in personam and a proceeding 
 in rem. A proceeding in rem creates no personal obligation, 
 and the prime essential is dominion over the res. No service 
 is necessary in a proceeding in rem, and if any be required by 
 statute it is merely matter of procedure." 
 
 Effect of Denial of Right to Hearing in Either Case. 
 
 § 19. A judgment was held void in the United States 
 Supreme Court because the defendant therein was denied the 
 right to a hearing after he had appeared, the court saying that 
 a denial of all right to be heard is equal to turning him out of 
 court. "It would be like saying to a party. Appear, and you 
 shall be heard ; and when he has appeared, saying, Your appear- 
 ance shall not be recognized, and you shall not be heard."* 
 
 Effect of Acts of the Parties or of Other Courts. 
 
 § 20. As a general rule, jvirisdiction of the person once 
 acquired cannot be taken away by any act of any party, stran- 
 ger, or other court ; but a removal of the cause or person to an 
 appellate court, or from a state to a United States court, or by 
 a change of venue, looks like an exception.^ And tinder this 
 head may be mentioned the hopeless conflict in the decisions 
 as to whether a judgment is voidable or absolutely void that 
 
 'See exhaustive review of decisions in Van Fleet on Collateral Attacks 
 §§ 399-416. 
 
 'Windsor v. McVeigh, 93 U. S. 274, 278, cases 38; 42 ; Hovey v. Elliott,. 
 167 U. S. 409. 
 
 "Black on Judgments § 243 ; Freeman on Judgments § 121, 
 
§ 21 JUDGMENTS. 48 
 
 is rendered after a plaintiff or defendant has died — been sum- 
 moned to account in that court beyond the grave." 
 
 Effect of Irregularities. 
 
 § 21. I believe these are the only matters that should be 
 held to be jurisdictional ; but most courts until recently, per- 
 haps I should say even to this day, hold judgments void though 
 there was color of authority to act, whenever they resolve the 
 doubt contrary to the conclusion reached by the court in which 
 the offered proceedings occurred. Moreover, irregularities in 
 matters of form and procedure have often been held to be juris- 
 dictional defects. The Supreme Court of the United States, 
 speaking through Justice Field, says, "A departure from the 
 established modes of procedure will often render the judgment 
 void ; thus, the sentence of a person charged with a felony, upon 
 conviction by the court, without the intervention of a jury, 
 would be invalid for any purpose. The decree of a court of 
 equity upon oral allegations, without written pleadings, would 
 be an idle act, of no force beyond that of an advisory proceed- 
 ing of the chancellor. And the reason is, that the courts are 
 not authorized to exert their power in that way.'" 
 
 How Jurisdictional Questions may be Raised. 
 
 § 22. The question as to whether a court has this author- 
 ity to act called jurisdiction (right to say), may be made 
 and argued at three different stages of the case : i. When the 
 court proposes to or is asked to act, the court of its own motion 
 or some of the parties may object that the court has no juris- 
 diction to act as proposed. In such cases the question which 
 the court has to decide is not whether the action if taken would 
 
 "Black on Judgments §200; Freeman on Judgments §153. An ex- 
 haustive review of the decisions on this point will be found in a note to 
 Kager v. Vickery, 49 L. R. A. 153 ; same case, 61 Kan. 342, 59 Pac 628 
 78 Am. St. 318. 
 
 'Windsor v. McVeigh, 93 U. S. 274, 283, cases 38. 
 
49 NATURE AND ESSENTIALS. § 22 
 
 be binding, but whether such action would be proper. 2. 
 When the court has acted it may be asked to rescind such 
 action ; or a supervisory court may be asked to annul it on cer- 
 tiorari, error, appeal, or the like ; on the ground that the court 
 acted without jurisdiction. Here, as in the former case, the 
 question to be decided is not whether such act by the court was 
 binding, but whether it was proper; for it would be the duty 
 of the court to annul such action upon finding it to be improper, 
 even if it would be binding until annulled. 3. When a court 
 has acted, and such action is set up in some collateral proceed- 
 ing, objection may be then made to it as having no force or 
 effect, and amounting to nothing for any purpose, because the 
 court that took such action had no jurisdiction. It will be 
 observed that in this last class of cases an entirely different 
 question is before the court for decision. The question now 
 presented is not whether the court should have done, but 
 whether it could have done, the thing it assumed to do. The 
 question is not whether the action was proper, but whether it 
 was effectual, because the court had the power to do the thing 
 it assumed to do. The decision in such cases should be con- 
 trolled by considerations entirely different from those involved 
 in the first two classes of cases. The objections made in cases 
 of the first class are said to be made in- limine; the objections 
 in the second class of cases are direct attacks; the objections in 
 cases of the third class are collateral attacks. The reports 
 are full of discussions as to jurisdiction in cases of objection 
 in limine or by direct attack. But as the validity of the action 
 is not a question before the court for decision in such cases, 
 that question cannot be decided in such cases, whatever the 
 court may take occasion to say concerning it. Whatever the 
 courts say of validity in such cases is mere dictum, and there 
 is great danger that such remarks are not well considered. 
 
 d 
 
§ 23 JUDGMENTS. 50 
 
 The True Criterion of Validity on Collateral Attack. 
 
 § 23. Why Courts are Created. The considerations 
 that should influence courts in deciding whether judicial pro- 
 ceedings brought into question before them collaterally ought 
 to be given effect or treated as mere nullities, are excellently 
 stated by Judge Van Fleet in his treatise on Collateral Attack 
 (from which; by his kindness, I am permitted to quote), as 
 follows : "It is the duty of each person to yield to all others 
 their rights according to the law of the land. But as differ- 
 ences will arise in regard to the facts in particular cases, and 
 also in regard to the law, judicial tribunals are organized to 
 settle those differences. It is the suborn duty of such tribunals 
 to determine and fix the rights of the parties in each particular 
 case brought before them, if they have power to do so. 
 
 § 24. Preliminary Matters Necessarily Decided in 
 Every Case. "To do this, they must determine what the facts 
 are and the law applicable thereto. This duty rests with equal 
 weight upon the humblest magistrate and the highest court; 
 and the duty being the same the power must be the same. The 
 facts must be determined either fi'om the evidence or from the 
 want of evidence. On that the tribunal may err. The law 
 must be determined from the books. On that the tribunal may 
 err. By assuming to act at all, or to investigate any case; the 
 tribunal determines that a valid, constitutional law authorizes 
 its own organization, and that it has been duly organized ; that 
 the judge or judges presiding, and the other officers present, 
 are the proper ones, and duly qualified to act, and that by and 
 through them the corporate tribunal may lawfully act ; and that 
 the time and place of sitting are authorized by law. By assum- 
 ing to order process for the defendant, or to pass upon or ratify 
 process already issued, the tribunal determines that a valid 
 constitutional law gives it jurisdiction over the subject-matter 
 of the particular case presented, and by assuming to call or 
 default the defendant, it determines that process, lawful in 
 form, has been lawfully served upon him by the proper officer 
 
51 NATURE AND ESSENTIALS. § 25 
 
 or person at the proper time and place. By allowing an 
 appearance it determines that the person so appearing has the 
 lawful right to do so. 
 
 § 25. Distinctions as to the Source of the Law 
 AND the Dignity of the Court. "All questions concerning 
 the organization of the tribunal, the time and place of its sit- 
 ting, its jurisdiction over the subject-matter, its right to issue 
 process for the defendant, the validity of the process issued and 
 service made, are questions of law that must be decided in each 
 case. They may be constitutional, statutory or common law, 
 and a critical examination and comparison of all three may be 
 necessary in order to determine some small right before a 
 magistrate, commissioner, or board exercising judicial powers ; 
 and as the command of the law that justice shall be done in 
 each case is as imperative to the lowest judicial tribunal as to 
 the highest, and as it requires the same oath from the magis- 
 trate and the judge of the court of last resort, it necessarily fol- 
 lows that in determining the validity of their proceedings col- 
 laterally, the same rule must be applied to all. And as no one 
 would think of holding a judgment of the court of last resort 
 void if its jurisdiction were debatable or even colorable, the 
 same rule must be applied to the judgments of all judicial tri- 
 bunals. 
 
 § 26. Summary. "This is the true theory of judicial 
 action when viewed collaterally. If any jurisdictional ques- 
 tion is debatable or colorable, the tribunal must decide it; 
 and an erroneous conclusion can only be corrected by some 
 proceeding provided by law for so doing, commonly called a 
 direct attack. It is only where it can be shown, lawfully, that 
 some matter or thing essential to jurisdiction is wanting, that 
 the proceeding is void, collaterally."* 
 
 § 27. Distinction as to the Degrees of Doubt. 
 "When a claim is presented to a judicial tribunal and relief 
 
 'Van Fleet on Collateral Attack, pp. 1-2. 
 
§ 28 JUDGMENTS. 52 
 
 demanded, it is in duty bound 'to hear the plaintiff, at least, 
 and determine whether or not the law authorizes it to grant 
 the relief sought. This is purely a question of law. It may 
 be very simple or very complicated. It may be easily and cer- 
 tainly determined by reference to a familiar section of the stat- 
 ute or principle of the common law, or it may remain in much 
 doubt after the most laborious comparison of the common law, 
 statutes and constitutions, both state and federal. But as long 
 as there is anything to compare the comparison must be made ; 
 as long as there is a debatable question, it must be considered ; 
 and from such comparison and consideration, an erroneous 
 conclusion may be reached ; and as the tribunal is compelled 
 by law thus to investigate, compare, and consider, and to draw 
 a conclusion of law therefrom, it necessarily follows that such 
 conclusion, however erroneous, is not a nullity and void col- 
 laterally. So to hold, would be to punish the judges for their 
 want of brain and discrimination. [Is it not rather punishing 
 the public for the mistakes of the judges?] It must also be 
 remembered that the officer presiding over the tribunal may 
 be quite ignorant of law, and not fully able to understand the 
 fine distinctions made, yet the command of the law, that jus- 
 tice shall be done to the parties in that particular case, rests as 
 heavily on his conscience as on the conscience of the most emi- 
 nent judge. Hence, although the error in assuming or declin- 
 ing jurisdiction may be too plain for debate before judges 
 skilled in the law, that does not necessarily make his decision 
 void. The true rule seems to be that if the question is color- 
 able — such as a person unskilled in the law might mistake — it 
 will shield the decision from collateral assault."^ 
 
 § .28. Why Public Policy Demands That This Test 
 BE Applied. Having thus shown this to be the only test of 
 validity consistent with the nature and theory of judicial pro- 
 ceedings, the same learned writer proceeds to show as it seems 
 
 "Van Fleet on Collateral Attack § 66. 
 
53 NATURE AND ESSENTIALS. § 29 
 
 to me conclusively — not only that this is the only test of val- 
 idity consistent with the attainment of justice, peace, and secur- 
 ity to the public, the only purposes for which courts were cre- 
 ated — ^but that it is indispensable to the maintenance of respect 
 for the courts by the public. 
 
 § 29. Same. He says, "It is the duty of the courts to 
 set their faces against all collateral assaults on judicial pro- 
 ceedings for two reasons, namely: First. Not one case in a 
 hundred has any merits in it. The reader of this work will 
 see that innocent purchasers, by means of collateral assaults on 
 their titles derived through judicial proceedings, have been 
 compelled to yield millions to dishonest debtors on account 
 of bald technicalities that caused no actual harm whatever, and 
 that, by the same means, criminals who have been fairly tried 
 and justly convicted and sentenced, have caused untold vexa- 
 tion and expense to innocent prosecutors and officers. An old 
 case said, 'Judges will invent reasons and means to make acts 
 according to the just intent of the parties, and to avoid wrong 
 and injury which by rigid rules might be wrought out of the 
 act.' M^'hen the court can plainly see that a dishonest debtor 
 or criminal is attempting to use it to wrest property from inno- 
 cent purchasers, or to punish honest people, the judge ought to 
 be as astute in inventing reasons to thwart him. Second. The 
 second reason why courts should reduce the chances for a suc- 
 cessful collateral attack to the lowest minimum is, that they 
 bring the courts themselves into disrepute. Many people look 
 upon the courts as places where jugglery and smartness are 
 substituted for justice, and nothing tends more to increase 
 their numbers than to see their property and rights, held under 
 the solemn adjudications of the courts snatched away on 
 account of some defect or omission in a summons, or return 
 of service, or petition, which caused no actual harm to any one. 
 Such things tend to weaken law and order and to cause men to 
 settle their rights by violence. For these reasons, when the 
 judgment rendered did not exceed the possible power of the 
 
§ 30 JUDGMENTS. 54 
 
 court, and the notice was sufficient to put the defendant upon 
 inquiry, a court should hesitate long before holding the pro- 
 ceedings void collaterally."^ 
 
 § 30. Conclusion and Prospect. Thus much as to 
 the true criterion of validity in cases of collateral attack on 
 judicial proceedings in which the court had erred in its con- 
 clusion on some matter of law (common, statutory, or consti- 
 tutional) or upon the facts, touching the court's authority or 
 the merits of the case, whereby a judgment had been rendered 
 that should not have been rendered. 
 
 Whether Irregularities Should be Held to Make the Judg- 
 ment Void. 
 
 § 31. The Argument Above Given Applies With 
 Greater Force to cases in which the error as to the matter of 
 law related, not to the merits of the case, but to the method of 
 proceeding. A disobedience of the law in this respect, either 
 from error or oversight, is called an irregularity. In this case 
 as in the other it may be a rule of law common, statutory, or 
 constitutional. 
 
 § 32. Great and Small Irregularities Distin- 
 guished. An attempt has been made to distinguish between 
 minor irregularities and greater ones ; but clearly this is a dif- 
 ference in degree, not in kind. If it be admitted that there are 
 any irregularities that will expose the judgment to collateral 
 attack, there is no place to draw the line of distinction between 
 those which avoid and those which do not. The forms of 
 action, the steps in the progress of each, and the character of 
 the deviations are so numerous and varied that if one man were 
 to decide all the cases he could not be consistent with himself 
 in holding some irregularities jurisdictional and others not 
 unless he could "sever and divide between the northwest and 
 the northwest side." 
 
 'Van Fleet on Collateral Attack, p. 3 ; to the same effect, Woerner 
 on Administration § 145. 
 
55 NATURE AND ESSENTIALS. § 33 
 
 § 33. Nature of the Law Disobeyed. An attempt 
 has also been made to distinguish between violations of com- 
 mon law rules, violations of statutory requirements, and vio- 
 lations of constitutional requirements. It has been said that 
 some statutory provisions are mandatory and that others are 
 merely directory; but that cannot be, for the very essence of 
 the law is its imperative character, "commanding what is right 
 and prohibiting what is wrong ;" otherwise it is not law at all, 
 but mere advice." The statute controls the common law, the 
 new statute controls the old, and the constitution is paramount 
 to both; but each is as imperative as any other when they do 
 not conflict. What is really meant by such statements is this : 
 If the statute commands something to be done in a particular 
 way luithout providing zvhat shall he the effect of disobedience ; 
 and the act done in some other way comes up collaterally, the 
 court must say whether the deviation was fatal or only ground 
 for objection in the very proceeding in which the error occur- 
 red. That is to say, the court promulgates a rule of the com- 
 mon law not found in the statute at all, and declares the pro- 
 vision mandatory and the deviation fatal in one case, and 
 merely directory, and the departure an irregularity in another. 
 If the statute provides explicitly what shall be the effect of 
 deviation, its provision must control, whatever it may be; but 
 if it does not provide for that contingency, the court has no 
 recourse but to apply a rule of its own. 
 
 § 34. Nature of the Conflict in the Decisions. I 
 do not believe the decisions of any state on this subject can be 
 reconciled with themselves, much less with the decisions of 
 any other state; and therefore, I shall pass over this vexed 
 question by simply giving extracts from two cases cogently 
 stating why irregular judicial proceedings should be given 
 effect when attacked collaterally. 
 
 ''Introduction to Blackstone's Com. p. 44. 
 
§ 35 judgments. 56 
 
 § 35. Why No Statutory Requirements as to Pro- 
 cedure Should be Held to be Jurisdictional Unless 
 Expressly Made So. — An Illustrative Case. An early 
 Alabama decision upheld the title of a purchaser at an adminis- 
 trator's sale made without obeying several provisions of a stat- 
 ute providing that "any order of sale, and sale, made without 
 a compliance with the requisitions of this act, shall be wholly 
 void." 
 
 § 36. Same. The court held that "this act" meant this 
 section; but the reasons given for so holding would equally 
 sustain the contention that the statute applied only to direct 
 attacks. The following is from the opinion of the court in this 
 case: "It is argued for the appellants, that under the last 
 clause of the fifth section of this statute [above quoted] , every 
 order of sale, and sale, made without a compliance with each 
 of the several requisitions of the five sections above noticed, 
 is wholly void. We cannot assent to such a proposition. The 
 maintenance of it would lead to consequences alike absurd and 
 injurious. It would make a strict compliance with a large 
 number of statutory requisitions the unyielding standard of 
 the validity of all orders of sale. Some of those requisitions 
 pertain to matters not evidenced by the record. For example, 
 a decree of sale would be void, if the guardian ad litem were of 
 kin to the administrator, or if there was an inaccuracy in the 
 list or description of the heirs, or their residences, or if the direc- 
 tions as to the mode and time of giving notices were not strictly 
 observed. One desiring to purchase at the sale would be 
 unable to ascertain, by an examination of the record and papers, 
 whether the title would be valid. After making the most care- 
 ful inquiry, and finding no defect in the proceedings, and there- 
 fore venturing on a purchase, his title might be defeated by 
 evidence that there was som% heir whose name was overlooked 
 or forgotten by the administrator, or not known by him, and, 
 therefore, not inserted in his petition. In like manner, his 
 
57 NATURE AND ESSENTIALS. § 37 
 
 title might be defeated by a mistake as to the residence of any 
 one or more of the heirs. Many other equally forcible illus- 
 trations of the unavoidable and irremediable uncertainty of 
 such sales might be given." 
 
 § 37. Samf. "When it is considered that the probate 
 judges do not usually belong to the profession of the law, and 
 are not chosen generally for their legal attainments, it is not 
 difficult to perceive that, if the proposition asserted by the coun- 
 sel should be maintained, a valid sale of land under the order 
 of the probate court, since the date of the act of 1854, would 
 be an exception to a general rule. Not merely the tendency, 
 but the inevitable effect of such a decision^ would be to destroy 
 confidence in such sales, and cause great injury to heirs by sales 
 at greatly depreciated prices, when an exceptional case of a 
 compliance with the numerous requisitions of the statute 
 occurs. The legislature will be held to have absurdly sub- 
 verted its own purpose of benefitting estates, by affording a 
 safe, cheap, and expeditious mode of accomplishing the sales 
 required by the process of administration, with the strictest 
 care for the interest of the persons interested; and to have 
 adopted a plan which would lead to the sacrifice of estates." 
 
 § 38. Same. "The courts of the country would be filled 
 with suits, in which the validity of sales will be contested upon 
 the question of a compliance with all the minute details of the 
 machinery by which the sale was reached. The absurd and 
 ruinous consequences of a statute which is plain, afford no jus- 
 tificatioii for setting it aside by the courts ; * * * but if there 
 is uncertainty and obscurity in the law, such consideration may 
 be taken into view, as a help to the ascertainment of the legis- 
 lative intention."'^ 
 
 § 39. Another Illustrative Case. In a case pre- 
 sented to the Supreme Court of Ohio, an action under the code 
 
 'Satcher v. Satcher's Admr., 41 Ala. 26, 91 Am. Dec. 498; to the same 
 effect, Woerner on Administration § 145. 
 
■■§ 40 JUDGMENTS. 58 
 
 to recover real property had been brought, by one who had 
 purchased it on mortgage foreclosure, against one who had 
 purchased the premises at the sale made by the sheriff in fore- 
 closure of a prior mortgage in the common pleas. The sher- 
 iff's sale had been confirmed without objection by anyone, and 
 the plaintiff was party to the proceedings. In the appraise- 
 ment of the property preliminary to the sheriff's sale the pur- 
 chaser, defendant herein, had acted as one of the appraisers. 
 For this reason, the plaintiff claimed that the sale was made 
 void by the statute which provided, that "no sheriff or other 
 officer making the sale of property, either personal or real, nor 
 any appraiser of such property, shall, either directly or indi- 
 rectly, purchase the same ; and every purchase so made shall he 
 considered fraudident and void." The court held that the 
 statute applied only to direct attacks, and that the sale was not 
 void collaterally. 
 
 § 40. Same. The following is from the opinion of the 
 court : "If a sale to an appraiser be absolutely void, so that it 
 may be impeached in a collateral proceeding, it follows that 
 the defendant has no legal title to the premises in controversy ; 
 Ijut if the sale be voidable only, and good until avoided by a 
 direct interposition or proceeding for that purpose, then he has 
 a legal title to the premises, and the judgment of the court 
 below was right." 
 
 § 41. Same. "The language of the statute is, 'every 
 purchase so made shall be considered fraudulent and void.' 
 What is the precise idea which the legislature intended to 
 express in the use of this language? Was it intended that such 
 sales, and all conveyances made in pursuance of them, should 
 be, as to all the world, and under all circumstances, as if they 
 had never been made — however advantageous the sale may 
 have have been to all parties interested, and however desirous 
 such parties might be to maintain and enforce it? Or was it 
 intended only, that whenever a party interested in the sale should 
 directly interpose, or institute a proceeding to avoid the sale, 
 
59 NATURE AND ESSENTIALS. § 42 
 
 it should 'be considered,' that is to say adjudged by the court, 
 that the fact of the purchaser having been an appraiser was 
 conclusive evidence of fraud, and that the sale should there- 
 upon 'be considered' or adjudged void? This is the question." 
 
 § 42. Same. "If the language of the statute were 
 entirely unequivocal, we should be bound to follow it, to what- 
 ever consequences it might lead, short of a manifest absurdity. 
 But this can hardly be said of the language of this clause of 
 the statute. * * * In the construction of statutes we may look 
 to the mischiefs, if any, which the statute was designed to rem- 
 edy, and also to the consequences which would flow from any- 
 particular construction ; and if the statute be fairly susceptible 
 of two different constructions, we are at liberty to choose that 
 one which, while it remedies the mischief aimed at, avoids the 
 absurd or unjust consequences which would flow from the 
 other. Now, the mischief which this statute aims to prevent 
 is obviously that which arises from fraudulent appraisements, 
 made with a view to the individual advantage of the appraiser 
 when he becomes a bidder at the sale. This mischief is as 
 effectually prevented by holding the sale to be voidable, at the 
 option of the parties interested, on a proceeding for that pur- 
 pose, as it would be by holding it to be an absolute nullity; 
 while the injurious consequences, — which would often follow 
 if the sale be held to be strictly void, — of depriving the parties 
 . interested of the benefit of a highly advantageous sale, and a 
 purchaser who, though held fraudulent by the policy of the 
 statute, may be wholly innocent in fact, of the purchase money 
 he had paid, — would be avoided. For it may well be, that 
 an appraiser may be willing to bid more for a parcel of real 
 estate than any one else ; he may have bought at the request of 
 all the parties interested ; and yet if his purchase be strictly 
 void, it can not stand, although all parties may be anxious to 
 sanction and confirm it." 
 
 § 43. Same. "It may be here said, however, that the 
 plaintiff, Terrill, was a party interested in the sale; and that 
 
§ 44 JUDGMENTS. 60 
 
 he does wish to avoid it by means of this suit. But not so. 
 This is a suit for the recovery of land ; and is not a suit to avoid 
 the sale, in the sense of causing it to be set aside and a new sale 
 made, so that justice may be done to all parties ; but the circum- 
 stances would indicate rather that he is wishing to affirm the 
 sale so far as to have a lien preferable to his own, satisfied by 
 the proceeds of the sale, and to disaffirm it so far as necessary 
 to enable him wrongfully to dispossess the purchaser, and tO' 
 appropriate the land under his own junior lien. With such 
 a disaffirmance we can have no special sympathy."* 
 
 § 44. Efb'ect of Holding Irregularities Not Juris- 
 dictional. If the statute had been given the force of a rule 
 of the common law in every case, and the statutory proceeding 
 treated with the same consideration as a common law proceed- 
 ing, justice would generally have been attained. If experience 
 proved any provision of the law to work hardship, the legis- 
 lature could easily amend the law in that particular so as to 
 avoid the difficulty. For example, if attachment without other 
 notice than publication were found to work hardship, personal 
 notice out of the state might be required as to defendants hav- 
 ing a known residence, or the attachment debtor might be given 
 a right of action against the attaching creditor and 'on the bond 
 for the difference between the actual value of the property 
 taken and the amotmt of his actual indebtedness and costs. 
 But when the courts give relief by declaring the proceedings- 
 void for technical defects, Pandora's box is opened and a long 
 train of evils is entailed. The same is true of the other forms 
 of procedure. 
 
 § 45. Why Statutory Requirements are Held to 
 BE Jurisdictional. I have never known any reasons to be 
 given for these decisions, except that the statute was the only 
 authority for the proceeding. But the conservatism and aver- 
 sion to innovations induced by our system of jurisprudence, 
 the following of precedents ; the desire to relieve from a hard 
 
 *Terrill v. Auchauer, 14 Ohio St. 80. 
 
61 NATURE AND ESSENTIALS. § 46 
 
 case, property worth thousands of dollars seized and sold for 
 a mere pittance on a doubtful claim in proceedings of which the 
 owner had no actual notice; and the failure of the courts to 
 foresee the efifects of their decisions, — these seem to me suffi- 
 cient reasons to account for the fact that such decisions have 
 been made. The courts have not reasoned the matter out on 
 general principles, in broad terms; counsel are equally in the 
 dark ; and the press of business will not permit either to go to 
 the bottom of the matter. "The trouble with them is a want 
 of generalization. The great point in any science is to gen- 
 eralize. The vast, almost infinite, superiority of algebra over 
 arithmetic lies in its generalization. The tribunal always deals 
 with a particular case."^ 
 
 Summary of the Essentials of Judgments. 
 
 § 46. It has seemed necessary to give thus much atten- 
 tion to the vexatious subject of jurisdiction, in order to get a 
 clear and complete conception of what a judgment is; and this 
 brings us to the end of our first topic, the definition of a judg- 
 ment ; and we may now state our conclusion that a judgment is 
 the sentence of the law pronounced by the court upon the mat- 
 ter contained in the record. From the foregoing review of 
 our definition, we may discern the following essentials of a 
 judgment: i. If nothing be done, if there be no pronounce- 
 ment, clearly there is no judgment. 2. If the pronouncement 
 be not in the nature of a sentence, it is no judgment. 3. If 
 pronounced by any body other than the court, it is no judg- 
 ment. 4. If upon matter that court is given no authority by 
 law to hear and determine, it is no judgment. 5. If that 
 court is not given authority by law to pronounce such a judg- 
 ment in any case, it is no judgment. 6. If the matter pro- 
 nounced upon be not before the court, it is no judgment. 7. It 
 is not a judgment in personam, unless the person pronounced 
 against was before the court. 
 
 'Van Fleet on Collateral Attack § 66. 
 
2. KINDS OF JUDGMENTS. 
 
 § 47. Judgments may be classified from various points 
 of view, according to the purpose intended to be served by the 
 classification. The following classifications are some of the 
 most important: i. As to their effect in disposing of the 
 action, judgments are either interlocutory or final. As we 
 have seen, only the final are really judgments. Final judg- 
 ments are those which completely dispose of the particular 
 action, though not necessarily of the controversy involved in 
 it. 2. Judgments are either absolute or nisi, according as they 
 are to have effect at all events or only upon the happening or 
 not happening of some specified event. 3. As to the place 
 where rendered, judgments are either domestic or foreign. A 
 domestic judgment is one rendered by a court of the same sov- 
 ereignty. A foreign judgment is one rendered by any other 
 court. 4. As to the state of the pleadings at the time the 
 judgment was rendered, it is: (a) on an issue of law, (b) on 
 an issue of fact, (c)when the pleadings raise no issue, or (d) 
 on abandonment of the suit by the plaintiff. 5. As to the bind- 
 ing effect, the judgment is either valid or void, and if valid is 
 either in personam or in rem, and if in rem, is either in rem 
 generally or as to particular persons or purposes. The differ- 
 ence in the binding effect of judgments in personam, and judg- 
 ments in rem, either generally or specially, will be explained 
 more fully when we come to consider the effect of judgments. 
 
3. THE RECORD OF THE JUDGMENT. 
 
 Nature and Form, §§ 48-52. 
 Definition, § 48. 
 English Practice, § 49. 
 American Practice, §§ 50-52. 
 
 Entering and Amending, § 53. 
 
 Essentials of the Record, §§ 54-56. 
 
 How the Question Arises — Cured in Same Court, § 54. 
 How far Presumptions Aid the Record, § 55. 
 What must Always Appear, § 56. 
 
 Conclusiveness of the Record, §§57-60. 
 The Original Doctrine, § 57. 
 Modern Limitations of the Doctrine, S 58. 
 Does not Apply to Inferior Courts, § 59. 
 Records of Domestic Courts Conclusive on Collateral At- 
 tack, § 60. 
 
 NATURE AND FORM. 
 
 Definition. 
 
 § 48. "The record in judicial proceedings is the written 
 history of the proceedings and transactions of the court, kept 
 as a perpetual memorial thereof."^ 
 
 English Practice. 
 
 § 49. In primitive times all the proceedings were oral in 
 open court, the declaration, pleadings, judgment, everything; 
 and the judge or his clerk took rough notes of the proceedings 
 as they progressed. These were finally amplified on parch- 
 ment, and filed as a perpetual memorial. When the pleadings- 
 came to be made in writing on paper, this custom of copying 
 them on parchment was continued. As soon as the verdict had 
 been found and reported, the signature of the proper officer 
 
 'Record. 20 Am. & Eng. Ency. (ist ed.) 475. 
 
§ 49 JUDGMENTS. 64 
 
 was obtained on a sheet of paper called a final judgment paper. 
 This was called signing judgment. As soon as this was done, 
 the successful party might make the record on parchment. 
 This was called entering the judgment of record; and when 
 this parchment copy had been filed it was called the judgment 
 roll. Leaving the roll in the treasury of the court was called 
 filing the record. The clerk kept a book in -which all these 
 records were indexed. Making the entry in the index was 
 called docketing the judgment.^ The following, copied from 
 Wentworth's Pleading,^ will give some idea of the nature of 
 these records ; 
 
 ENGLISH JUDGMENT ROLL. 
 
 Pleas before our lord the king at Westminster of the Term of St. 
 Michael, the twenty-sixth year of the reign of our sovereign lord George the 
 Third, by the grace of God of Great Britain, France, and Ireland, king, 
 defender of the faith, and so forth, in the year of Our Lord 1785. — Roll, 
 Stormont and Way. 
 
 London, Be it remembered, that in the Term of the Holy Trinity last 
 past, before our lord the king at Westminster, came Robert Hunter, by 
 Giles Blake his attorney, and brought into the court of our said lord the 
 king then there his certain bill against John Bermingham, being in the cus- 
 tody of the marshalsea of our said Lord the King, before the king himself, 
 of a plea of trespass on the case, and there are certain pledges for the pros- 
 ecution, to wit, John Doe and Richard Roe ; which bill follows in these 
 words, to wit ; London, to wit. Robert Hunter complains of John Berming- 
 ham — [here follows the bill in full except the signature, then the imparlance, 
 plea, and continuance]. 
 
 Afterwards, that is to say, on the day and at the place within men- 
 tioned, before the Honorable Francis BuIIer esquire, the justice within men- 
 tioned, John Way gentleman being associated with him, according to the 
 form of the statute in such case made and provided, came as well the 
 within named Robert Hunter, as the within named John Bermingham, by 
 their respective attorneys within mentioned, and the jurors of the jury 
 within mentioned being called likewise came; who, being tried and sworn 
 to speak the truth concerning the matters within contained, and after evi- 
 dence being given to them of and upon the within contents, went from the 
 bar of the court to discuss their verdict of and upon the premises, and after 
 the said jury has discoursed and agreed among themselves they come back 
 to the bar and say that the said John Bermingham did undertake and prom- 
 ise in manner and form as in the said declaration is complained against 
 
 "Tidd Practice, 930-939; Stephen Pleading, in. 
 "Vol. I, pp. 327, et seq. 
 
65 RECORD. § 50 
 
 him; and they assess the damages of the said Robert Hunter on occasion of 
 the premises mentioned in the sum of fifty-eight pounds three shillings and 
 sixpence, over and above his costs and charges by him laid out in his suit 
 in this behalf and for those costs and charges to forty shillings; Therefore 
 it is considered that the said Robert Hunter recover against the said John 
 Bermingham his damages aforesaid, by the jury aforesaid in manner and 
 form assessed, and also four pounds and thirteen shillings for his costs and 
 charges aforesaid to the said Robert by the court of our lord the king now 
 here adjudged of increase, with his assent; which said damages in whole 
 amount to sixty-four pounds sixteen shillings and sixpence, and the said 
 John Bermingham is in mercy. 
 
 American Practice. 
 
 § 50. Where Judgment is Formally Recorded. The 
 English practice is followecl to a great extent in some states ;* 
 but the entries ^re usually required to be made by the clerk of 
 the court instead of by the attorney, in books instead of on 
 loose sheets, and on paper instead of parchment. Probably 
 no court in this country has its records kept in parchment. 
 The student must examine the statutes, court rules, and deci- 
 sions of his own state in order to learn the proper practice 
 there ; but it may be worth while to make a few suggestions as 
 to the practice generally. In New York the successful party 
 must make a judgment roll for the clerk, by preparing exact 
 copies of all the papers on file in the. case and attaching them 
 together, or by attaching the original papers together, and in 
 either event adding a copy of the judgment as entered in the 
 judgment book, and filing the whole with the clerk ; or the clerk 
 may at his option make up the record himself." So, in Minne- 
 sota and the Dakotas, except that it is the duty of the clerk to 
 make up the roll." So, in Wisconsin, unless the party shall 
 furnish the roll to the clerk.' In California the rule is the 
 same, except that the clerk makes up the roll by attaching 
 
 ^Records, 20 Am. & Eng. Ency. of Law (ist ed.) p. 475. 
 
 'New York Civil Code (1899) §§1237, 1238; Knapp v. Roche, 82 
 N. Y. 366. 
 
 "Minn. Stat. (1894) §5423; S. Dak. Comp. Laws §5103; Locke v. 
 Hubbard, 9 S. Dak. 364, 69 N. W. 588. 
 
 'Wis. S. & B. Stat. (1898) § 2898. 
 
§ 51 JUDGMENTS. 66 
 
 together the original summons, proof of service, pleadings, a 
 copy of the verdict, the bill of exceptions if any has been filed, 
 and a copy of the judgment as entered in the judgment book.' 
 In each of these states the statutes also require the clerk to enter 
 the judgment at large in a book called the judgment book, and 
 it is a copy of this entry that completes the judgment roll. In 
 each of these states, also, the clerk is required to keep an index 
 of judgments, usually called the judgment docket, or the judg- 
 ment and execution docket, in v^rhich he enters the names of 
 the parties to the judgment, its date and amount, and vyrhatever 
 is done toward executing or satisfying it. 
 
 § 51. Where Journal Entries and Files are the 
 Record. In Illinois, Indiana. Iowa, and Ohio,' the practice 
 is more like the practice in Michigan, which more nearly resem- 
 bles the primitive than the modern English practice. No for- 
 mal record is made up at all, but the files in the case and the 
 entries made by the clerk, in the journal of the proceedings 
 of the court while in session, stand in the place of the formal 
 record.'' According to this practice, the files in the case are 
 treated as a part of the record; and such action taken by the 
 court in the case as does not appear from an inspection of the 
 files, is shown by the journal. But in these states the clerk 
 is required to keep an index or indexes, as in the other states, 
 called a docket, and showing the names of the parties to each 
 judgment, its amount, its date, and what has been done in the 
 way of enforcing it or satisfying it. A fair idea of the char- 
 acter of the journal entries will be obtained by examining the 
 following ; 
 
 'Cal. Code Civ. Proc. (1895), §670, as cited in Estee's Pleadings 
 (1898) §4760. 
 
 "Kurd's Stat. 111. (1899), Ch. 25, §§13-16; Jasper v. Schlessinger (per 
 Moran, J.), 22 111. App. 637, cases 3; Ind. Stat., Rev. 1894, §588 et seq. ; 
 Galbraith v. Sidner, 28 Ind. 142; Iowa Code (1897) §§288, 3784; Campbell 
 v.. Ayres, 6 Iowa 339; Brown v. Barngrover, 82 Iowa 204; Ohio Civil Code 
 (Whittaker, 1896) § 5331 et seq. 
 
 'Mich. Comp. Laws (1897), §3I4; Emery v. Whitwell, 6 Mich. 474, 
 486. 
 
67 RECORD. § 51 
 
 JOURNAL ENTRIES IN MICHIGAN CIRCUIT COURT. 
 
 Monday, May 7th, A. D. igoo. 
 At a regular session of the Circuit Court for the county of Washtenaw, 
 commenced and held at the court house in the city of Ann Arbor, on the 
 seventh day of May in the year of our Lord one thousand nine hundred, 
 igoo. 
 
 Present, the Hon. E. D. Kinne, 
 
 Circuit Judge. 
 The court opened for business in due form at ten a. m. 
 [Here follow several entries concerning criminal cases, then the follow- 
 ing.] 
 Ella Glazier 
 
 V. 
 
 The City of Ypsilanti. 
 
 In this cause, the parties being in court by their respective attorneys 
 ready for trial, thereupon came a jury of twelve good and lawful men, 
 to wit, Michael P. Alber, John Volz, Theodore Mohrbox, George Chapman, 
 George Greske, Robert Campbell, Burt Martin, Ray Buckalew, Frank Gil- 
 pen, William Dolan, Gottlob Hutzel, and August Otto, who, being duly 
 impaneled and sworn well and truly to try the issue between the parties, 
 sat together and heard the allegations and proofs of the parties until the 
 hour of adjournment. 
 
 Whereupon the Court adjourned till tc^morrow at nine a. m. 
 
 [Signed] E. D. Kinne, Circuit Judge. 
 
 Tuesday, May 8th, A. D. igoo. 
 Court met pursuant to adjournment and opened for -business in due 
 form at nine a. m. 
 Ella Glazier 
 
 V. 
 
 The City of Ypsilanti. 
 
 The jury heretofore impaneled and sworn in this cause sat together and 
 heard further proofs, the arguments of the attorneys for the respective par- 
 ties and the charge of the court, and retired from the bar under the charge 
 of Charles Dwyer, an officer of the court duly sworn for that purpose, to 
 consider their verdict; and, after being absent for a time, returned into 
 court, and say upon their oaths ,that the city of Ypsilanti is guilty in manner 
 and form as the plaintiff has in her declaration in this cause complained 
 against it-; and they assess the damages of the said Ella Glazier on occasion 
 of the premises, over and above her costs and charges by her about her suit 
 in this behalf expended, at the sum of six hundred dollars ; therefore, on 
 motion of A. J. Sawyer & Son, attorneys for said plaintiff, it is considered 
 and adjudged by the court now here that Ella Glazier do recover against 
 the said city of Ypsilanti the said sum of six hundred dollars, together with 
 her costs and charges to be taxed, and that execution do issue therefor. 
 
 [Here follow the entry in the next case and the other proceedings for 
 the day, signed at the end by the judge as on the previous day.] 
 
§ 52 JUDGMENTS. 68 
 
 § 52. Justice Court Records. What is above stated 
 has reference only to records in the superior courts. Justices 
 of the peace usually have what is called a docket in which they 
 enter, under the caption of each case, in ledger form rather than 
 in the form of a journal, a minute of whatever is done in the 
 case from the issuing of the original process to ,the return of 
 satisfaction on the execution. 
 
 ENTERING AND AMENDING THE RECORD. 
 
 § 53. The record should be an accurate contemporaneous 
 history of the proceedings, showing all the essential facts. But 
 failure of the clerk to make up the record during the term 
 does not deprive him of power nor relieve him from the duty 
 to make it up later. The court may, of its own motion, order 
 the record made, even after years of neglect. When the entries 
 have been made the clerk's powers cease. No man would be 
 safe if the clerk could change the records to suit his conven- 
 ience. If he learns that his A'ersion of the proceedings does 
 not accord with the facts he cannot rectify his error; but the 
 court may at any time order any part of the entries to be so 
 changed as to accord with what was done. For this purpose, 
 notice to the parties is not jurisdictional; though it ought 
 always to be given, to enable them to show any reason why the 
 change should not be made ; and a party prejudiced by the omis- 
 sion may have the amending order vacated for that reason. 
 The court should not rashly conclude that the entry is inaccu- 
 rate; and many courts hold that no change can be rnade on 
 the unsupported recollection of the judge and spectators, but 
 only when the fact appears on the face of some of the papers 
 in the case. This makes the clerk more powerful than the 
 court. On the other hand, it is said that the trial court is the 
 only judge of the competency and sufficiency of the evidence 
 to prove the fact. Yet, should not a court of review compel 
 
69 ■ RECORD. § 54 
 
 the correction of an indisputably erroneous statement in tlie 
 record? The right to a day in court is nothing without the 
 right to have the proceeding correctly recorded.^ 
 
 ESSENTIALS OF THE RECORD. 
 
 How the Question Arises — Cured in Same Court. 
 
 § 54. What is a sufficient record is a question that may 
 arise: i, in the same proceeding; or, 2, in another proceed- 
 ing, (a) in the same court, or (b) in some other court. If 
 in the same court, though in another proceeding, want of record 
 evidence of any essential facts can usually cause little trouble, 
 provided you can convince the judge that these facts existed; 
 for he may then order the objection removed on the spot, by 
 amending the record so as to supply the defect.^ 
 
 How Far Presumptions Aid the Record. 
 
 § 55. But if the question arises in another court, the 
 result is likely to be more serious. In such cases it is material 
 to inquire whether the court in which the judgment was ren- 
 dered was one of special and limited jurisdiction or one of gen- 
 eral jurisdiction ; and, if the latter, whether the particular pro- 
 ceeding came within its general powers, or was some extra- 
 ordinary statutory proceeding, of which it had jurisdiction by 
 virtue of the statute. If the court was a superior court of 
 general jurisdiction, and the proceeding in question was within 
 the scope of its general powers, there is a presumption that all 
 
 ''For authorities on the matters in this section see : Balch v. Shaw, cases 
 81 ; Hughes v. Streeter, cases 506 ; Commonwealth v. Magee, cases 307 ; Free- 
 man on Judgments, §§69-74; Black on Judgments, § 153-169. 
 
 Justices of the Peace have been held not to possess the power to 
 change their records or add to them when once entered. King v. Bates, 80 
 Mich. 367, and cases cited. Contra: Gates v. Bennett, 33 Ark. 475. 
 
 'Dewey v. Peeler, 161 Mass. 135, 42 Am. St. Rep. 399; Hoggatt v. 
 Montgomery, 7 Miss. (6 How.) 93. 
 
§ 56 JUDGMENTS. " 70 
 
 the facts existed to give it jurisdiction of the matter and of the 
 parties, and such facts need not be shown by the record. But 
 if what was done to obtain jurisdiction is stated in the record, 
 there is no presumption that anything else was done, though 
 essential to obtain jurisdiction.* The rule is different with 
 respect to courts of special and limited jurisdiction, and with 
 courts of general jurisdiction acting under an extraordinary 
 statutory authority. In such cases, according to most courts, 
 there is no presumption of law in favor of their jurisdiction. 
 The jurisdictional facts must then affirmatively appear from 
 sufficient evidence or proper averments in the record, or the 
 judgment will be deemed void.^ 
 
 What Must Always Appear. 
 
 § 56. But besides the above, all of the following must 
 always appear : i . That what is offered was really intended 
 as a record by the court whose judgment it records. 2. Who 
 were the parties in whose favor and the parties against whom 
 the judgment was rendered. 3. -That judgment was rendered, 
 and what that judgment was; if for damages, how much; if 
 for property, what property. No particular form of words 
 is ever necessary. It is well enough if the substance can be 
 gathered from the record as a whole. It need not show the 
 names of the jury, the form of the action, or the evidence on 
 which the judgment was based ; and need not be signed by the 
 judge unless the statute requires it." 
 
 ■■Hahn v. Kelly, 34 Cal. 391, 405, 94 Am. Dec. 742; Black on Judg- 
 ments § 277 ; Freeman on Judgments § 125. 
 
 "Galpin v. Page, 18 Wall. 350, 366; Wells v. American Ex. Co., cases 
 31; Greenvault v. Farmers' & M. Bank, cases 24; Jurisdiction, 17 Am. & 
 Eng. Ency. Law (2d ed.), 1073-1085. 
 
 "Judgments, 11 Ency. PI. & Pr. 925 et seq. ; Black on Judgments §§ 
 1 14-123 ; Freeman on Judgments §§ 50-55. 
 
71 RECORD. § 57 
 
 CONCLUSIVENESS OF THE RECORD; 
 
 The Original Doctrine. 
 
 § 57. "The rolls," said Lord Coke, "being the records 
 or memorials of the judges of the courts of record, import in 
 them such uncontrollable credit and -verity, as they admit no 
 averment, plea, or proof to the contrary. * * * And the rea- 
 son thereof is apparent ; for otherwise there should never be any 
 end of controversies, which should be inconvenient. * * * 
 During the term wherein any judicial act is done, the record 
 remaineth in the breast of the judges of the court, and in their 
 remembrance, and therefore the roll is alterable during that 
 term, as the judges shall direct. But when the term is passed, 
 then the record is in the roll, and admitteth no alteration, aver- 
 ment, or proof to the contrary."^ 
 
 Modern Limitations of the Doctrine. 
 
 § 58. This doctrine is necessary that there may be an 
 end of disputes. But when applied in its pristine rigor, to all 
 cases and under all conditions, it was too harsh and unreason- 
 able to stand. It would be hard to say exactly how much of 
 it remains. The modern decisions upon it are very numerous, 
 and far from uniform; yet the following propositions may be 
 stated as settled beyond dispute : 
 
 1. Statements in the record may always be disputed in 
 all proceedings instituted for the purpose of proving the falsity 
 of the record, to the end that it may be so amended as truly to 
 state the facts, or that the proceeding may be declared void 
 or limited in its effect, because some essential facts alleged did 
 not exist.* 
 
 2. Statements in the record may be disputed, and always 
 might be, in actions by the party injured against the officer 
 
 'Coke Lit., p. 260. See also, 3 Bl. Com. 407. 
 
 'Black on Judgments § 288. „_»,n. 
 
§ 59 JUDGMENTS. 72 
 
 making the false entry to recover the damages resulting from 
 his wrongful act.' 
 
 3. Strangers to the proceeding are not concluded by state- 
 ments of fact made in the record so far as their interests are 
 affected.^ 
 
 4. In actions on foreign judgments the defendant may 
 show that the judgment is void because some jurisdictional 
 fact alleged in the record did not exist.^ 
 
 Does Not Apply to Inferior Courts. 
 
 § 59. Perhaps all has been said that can be stated with 
 assurance. There is a fundamental distinction made in this 
 connection between superior courts and inferior courts. We 
 have seen that there is a presumption in favor of the jurisdic- 
 tion of superior courts, though the facts are not stated, and 
 that there is no such presumption with regard to the jurisdic- 
 tion of inferior courts. As to the latter, most courts hold that 
 extrinsic evidence cannot be admitted to prove that to have 
 been done as to which the record is silent f but there are deci- 
 sions the other way." Yet. if all jurisdictional facts are alleged, 
 and it appears from the record that those facts were tried and 
 judicially found, that finding cannot be collaterally contra- 
 dicted.' 
 
 Records of Superior Domestic Courts Conclusive on Collateral 
 Attack. 
 
 § 60. When the records of the judgments of superior 
 courts do not state the existence of jurisdictional facts, nor state 
 what was done to obtain jurisdiction, some courts hold that 
 
 'Michaels v. Stork, cases 83. 
 
 'Freeman on Judgments §.§ 33S, 416-419. The record is conclusive evi- 
 dence to prove its own existence and statements, even as to strangers ; but 
 not usually of the truth of these statements. Id. 
 
 ''Black on Judgments § 289. 
 
 'King V. Bates, 80 Mich. 367, and cases cited ; Bailey on Jurisdiction 
 Si74- 
 
 *Black on Judgments § 282. 
 
 'Black on Judgments § 287. 
 
73 RECORD. § 60 
 
 the existence of such facts may be denied and disproved col- 
 laterally to impeach the judgment;" but the weight of authority 
 seems to be the other way/ I believe there is but one state, 
 New York/ in which it is held that the record of the judgment 
 of a superior court may be impeached collaterally by contra- 
 dieting and disproving the statements in the record. This rule 
 is generally enforced though it be alleged that the record was 
 fraudulently made up to appear as if jurisdiction had been 
 obtained." 
 
 "Freeman on Judgments § 133. 
 
 'Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742; Black on Judgments 
 § 271 ; Freeman on Judgments § 132. 
 
 •Ferguson v. Crawford, cases 88. 
 
 'Van Fleet on Collateral Attack §549; Haven v. Owen, 121 Mich. 51, 
 79 N. W. 938, and note to same case in 80 Am. St. Rep. 477. 
 
VACATING, AMENDIMG, AND MODIFYING 
 JUDGMENTS. 
 
 Review and Prospect, § 6i. 
 
 Record and Judgment Distinguished, § 62. 
 
 What Courts May Vacate, Modify, and Amend Judgments, 
 
 §63. 
 What May be Vacated, Modified, &c.. During the Term, 
 
 §64- 
 Common Law Remedies After the Term, 9 65. 
 Modern Practice as to Relief after the Term, § 66. 
 
 Review and Prospect. 
 
 § 61. We have thus far considered the nature and essen- 
 tials, the kinds, and the record, of judgments; and we are 
 now ready to take up the next general branch of our subject — 
 vacating, amending, and modifying judgments. This topic 
 we will consider under the following aspects : i , what courts 
 may vacate or modify; 2, what may be remedied before the 
 end of the term at which judgment was rendered, and how; 
 3, what might be done after that term at common law ; 4, what 
 may be done after the term in modern practice. 
 
 Record and Judgment Distinguished. 
 
 § 62. It seems really superfluous to remark that under 
 this head we are not discussing amendments of the record, a 
 topic given considerable attention when we were speaking of 
 the record. But it is a fact, that amendments of the record 
 and amendments of the judgment are often treated together in 
 the most confusing manner by writers on this subject; and it 
 is frequently impossible to tell from the reports of decisions 
 whether the amendment under consideration was an amend- 
 ment of the record or an amendment of the judgment. The 
 judgment is the sentence of the law, the record its written his- 
 
75 AMENDING/ VACATING^ AND MODIFYING. § 63 
 
 tory. The two are entirely distinct, and the rules concerning* 
 amendments of them are very different. Therefore, be it 
 remembered that we are now concerned only with vacating and 
 modifying the judgment.^ 
 
 1. What Courts May Vacate, Modify, and Amend Judgments. 
 
 § 63. I. Justices of the peace and similar inferior courts 
 are generally held to possess no power to modify judgments 
 they have rendered, except in so far as that power is conferred 
 upon them by express statute. They cannot open their judg- 
 ments, grant new trials or even set aside verdicts rendered by 
 their juries." 
 
 2. Only the court that rendered the judgment can modify 
 or vacate it. The judge cannot do it during vacation. A 
 court to which it has been taken by transcript cannot overhaul 
 it.^ The legislature cannot by statute vacate it, for that is 
 judicial action.' Courts of supervision and review may reverse 
 or annul judgments of lower courts, on appeal, error, certiorari, 
 and the like ; but that is an entirely different matter. 
 
 3. All superior courts of general jurisdiction possess the 
 power to vacate, open, or modify their judgments on proper 
 and seasonable application unless forbidden by statute. This 
 power was conceded at common law to all the superior courts. 
 It exists independent of any statute.'"' 
 
 2. What May be Vacated, Modified, etc.. During the Term. 
 
 § 64. Until the final judgment has been rendered the 
 court may, on the application of anyone interested or even of 
 
 'The whole of this topic, together with amendments of records, is treated 
 in an article entitled : Opening, Amending, and Vacating Judgments, in 13 
 Ency. PI. & Pr. 202-303 ; and this article, with a few alterations, is em- 
 bodied in the article on Judgments and Decrees, 17 Am. & Eng. Ency. Law 
 (2d ed.) 813-848. 
 
 justices of Peace, 12 Ency. PI. & Pr. 738 ; Black on Judgments § 297. 
 
 "Nelson v. Guffey, 131 Pa. St. 289. 
 
 'Black on Judgments §§ 297, 298; Freeman on Judgments § 90; 15 Ency. 
 PL & Pr. 230-233. 
 
 "Kemp V. Cook, 18 Md. 130, 79 Am. Dec. 681 ; Bronson v. Schulten, 
 cases 103, 105. 
 
§ 65 JUDGMENTS. 76 
 
 its own motion, modify or undo anything it has done m the 
 cause at the same or any previous term. Until the end of the 
 term at which the final judgment is rendered, the judgment is 
 said to be in the breast of the court, and the power above men- 
 tioned continues unabated, though a new trial has already been 
 denied and a bill of exceptions settled.^ Moreover, the term 
 lasts till the first day of the succeeding term unless the court 
 sooner adjourns sine die.'' 
 
 3. Common Law Remedies After the Term. 
 
 § 65. But if the courts were permitted to keep causes 
 within their power indefinitely, alternately changing from one 
 side to the other, the remedy might be more intolerable than 
 the wrong for which redress was sought. The interests of 
 society demand that somewhere there should be an end of the 
 controversy. Accordingly, the rule of the common law was 
 that the cause passed beyond the power of the court with the 
 ending of the term in which the final judgment was rendered, 
 unless some proceeding to set aside the judgment had been com- 
 menced within that term and remained undisposed of.^ After 
 that time the only recourse was by commencing a new action :* 
 T , of attaint, for relief against a false verdict ; 2, of deceit, for 
 relief against fraud in real actions ; 3, of error, to remove the 
 cause to a court of review to correct errors of law appearing 
 on the face of its record ; 4, of error coram nobis if the cause 
 was in the king's bench, of error coram vobis if in the common 
 pleas, by which errors of fact affecting the validity of the pro- 
 ceeding (such as that the defendant was insane, an infant, 
 feme covert, or died before judgment) might be brought to 
 the attention of the court that rendered the judgment, which 
 
 "Huber Mfg. Co. v. Sweny, 57 Ohio St. 169; Blum v. Wettermark, 58 
 Tex. I2S. Or after the case has been removed to U. S. court and re- 
 manded. Jansen v. Grimshaw, 125 III. 468, 17 N. E. 850. 
 
 'Jasper v. Schlessinger, cases 3, 5 ; Freeman on Judgments § 90. 
 
 'Freeman on Judgments § 96; Black on Judgments §306. 
 
 "All of the following actions are discussed in 3 Bl. Com. 402-411. 
 
77 AMENDING, VACATING, AND MODIFYING. § 66 
 
 would thereupon give relief ;^ 5, of audita querela, to have the 
 benefit of matter in discharge arising after judgment, or exist- 
 ing before and kept from the attention of the court by fraud of 
 the other party f or, 6, by bill for review^ in chancery, by which 
 the extraordinary powers of the chancery were invoked to 
 obtain relief from an unjust judgment suffered by reason of 
 excusable mistake of fact, accident, or fraud.^ 
 
 4. Modern Practice as to Relief After the Term. 
 
 § 66. Such is the law to this day, except that in modern 
 practice the relief obtained in all these numerous old actions is 
 very generally granted on a simple motion in the court that 
 rendered the judgment ; and some further relaxations, the limits 
 of which are not always clearly defined, have been introduced 
 by statutes and custom dififering in each state.* 
 
 'Teller v. Wetherell, 6 Mich. 46, 49 ; Freeman on Judgments § 94. 
 ^Freeman on Judgments § 95. 
 
 'Marine Ins. Co. v. Hodgson, 7 Cranch 332; Black on Judgments §§ 
 368-396. 
 
 *Bronson v. Schulten, cases 103. 
 
5. THE EFFECT OF JUDGMENTS. 
 
 Review and Prospect, § 67. 
 Foundation and Origin of Estoppel by Judgments, §§ 68-71. 
 Why Judgments Estop, § 68. 
 
 Propositions Stated in the Duchess of Kingston's Case § 69. 
 The Three Essentials of an Estoppel— Plan of Treatment, 
 
 §70. 
 What Matters are Res Judicata, §§ 71-77. 
 
 Matters Classified and Distinguished, § 71. 
 
 What Causes of Action and What Defenses are Barred and 
 
 Why, §§72-74. 
 What Matters aside from the Claims, Counterclaims, and 
 
 Defenses are Concluded, §§ 7S-77- 
 
 Parties and Privies, §§ 78-82. 
 
 Judgments in rem Distinguished, S 78. 
 
 Plan of Treatment, § 79. 
 
 In What Suits Judgments bind Parties and Privies, § 80. 
 
 Who are Parties, §81. 
 
 Who are Privies, § 82. 
 
 What is a Sufficient Judgment, §§ 83-89. 
 Plan of Treatment, § 83. 
 A Judgment, § 84. 
 
 Of a Court of Competent Jurisdiction, § 85. 
 Final, § 86. 
 On the Merits, §87. 
 Subsisting, § 88. 
 In Personam, § 89. 
 
 Review and Prospect. 
 
 §67. Having considered: i, the nature and essentials; 
 2, the kinds; 3, the record ; and, 4, the vacating and modifying: 
 we come now to consider, 5, the effect of judgments. Judg- 
 ments have effect principally in two particulars: i, in estop- 
 ping: and, 2, in creating liens on property The consideration 
 of the effect of judgments in creating liens we will defer till 
 we come to treat of the kindred liens created by attachments, 
 garnishments, and executions. The effect of judgments in 
 creating estoppels we will consider now. 
 
79 EFFECT AS ESTOPPEL. § 68 
 
 FOUNDATION AND ORIGIN OF ESTOPPEL BY 
 JUDGMENT. 
 
 Why Judgments Estop. 
 
 §68, Res judicata '(a thing adjudicated) is the name 
 usually given to the branch of the law we are now discussing. 
 The rule that a judgment shall estop is one of necessity. Any 
 other rule would render all trials mere mockery, and all dis- 
 putes endless. As soon as any judgment had been rendered, 
 a new action might be commenced to try the questions again, 
 or to determine whether the first decision was correct, and so 
 on ad infinitum. The repose of society and the security of 
 every individual require that what has been definitely deter- 
 mined by a competent tribunal shall be accepted as indisputable. 
 Therefore, res judicata may render that white which was black, 
 and that straight which was crooked. Being a rule of neces- 
 sity, it must always have existed ; but we find it first fully and 
 formally stated in the Duchess of Kingston's Case} Concern- 
 ing the propositions announced in the opinion in that case, a 
 recent writer on the subject says, "For one hundred and nine- 
 teen years [since 1776] they have stood the test, and been 
 copied with approval by every supreme court in the English- 
 speaking world, and by every author who has treated upon the 
 subject."' 
 
 The Propositions Stated in the Duchess of Kingston's Case. 
 
 § 69. The following are the propositions referred to in 
 the above comment : "What has been said at the bar is cer- 
 tainly true, as a general principle, that a transaction between 
 two parties, in judicial proceedings, ought not to be binding 
 upon a third ; for it would be unjust to bind any person who 
 could not be admitted to make a defense, or to examine wit- 
 
 'Cases 109. 
 
 ^Van Fleet's Former Adjudications, p. 4. 
 
§ 70 JUDGMENTS. 80 
 
 nesses, or to appeal from a judgment he might think erroneous. 
 * * * From the variety of cases relative to judgments being 
 given in evidence in civil suits, these two deductions seem to 
 follow as generally true: first,, that the judgment of a court 
 of concurrent jurisdiction, directly upon the point, is as a plea, 
 a bar, or as evidence, conclusive, between the same parties, upon 
 the same matter, directly in question in another court ; secondly, 
 that the judgment of a court of exclusive jurisdiction, directly 
 upon the point, is, in like manner, conclusive upon the same 
 matter, between the same parties, coming incidentally in ques- 
 tion in another court, for a different purpose. But neither 
 the judgment of a concurrent or exclusive jurisdiction is evi- 
 dence of any matter which came collaterally in question, though 
 within their jurisdiction, nor of any matter incidentally cog- 
 nizable, nor of any matter to be inferred by argument from the 
 judgment." 
 
 Plan of Treatment — The Three Essentials to an Estoppel. 
 
 § 70. There is an estoppel by judgment only: i, (a) as 
 to the cause of action and (b) the issues tried; 2, in a suit 
 between the same parties, or to which they were privy, or in 
 rem; and, 3, when the judgment is upon the merits, final, valid, 
 and subsisting. There is no estoppel if any of these three 
 requirements be wanting. Our consideration of this topic will 
 therefore consist of a review of these three essentials, in the 
 order named. 
 
 WHAT MATTERS ARE RES JUDICATA. 
 
 Matters Classified and Distinguished. 
 
 § 71. Two distinct kinds of questions are res judicata: 
 1 , the cause of action sued on and the defenses to it, the defend- 
 ant's counterclaims and the defenses to them ; apd, 2, all mat- 
 ters directly in issue and necessarily decided, provided the court 
 
81 EFFECT AS ESTOPPEL. § 72 
 
 deciding would have had jurisdiction to decide them in the 
 connection in which they were afterwards presented as res 
 judicata. The distinction between these is thus stated by Jus- 
 tice Field : "There is a difference between the effect of the 
 judgment as a bar or estoppel against the prosecution of a 
 second action upon the same claim or demand, and its effect as 
 an estoppel in another action between the same parties upon a 
 different claim, or cause of action. In the former case, the 
 judgment, if rendered upon the merits, constitutes an absolute 
 bar to a subsequent action. It is a finality as to the claim or 
 demand in controversy, concluding parties and those in privity 
 with them, not only as to every matter which was offered and 
 received to sustain or defeat the claim or demand, but as to 
 any other admissible matter which might have been offered 
 for that purpose. * * * But where the second action between 
 the same parties is upon a different claim or demand the judg- 
 ment in the prior action operates as an estoppel only as to those 
 matters in issue or points controverted, upon the determina- 
 tion of which the finding or verdict zvas rendered." He then 
 proceeds to say that in the latter class of cases, "the inquiry 
 must always be as to the point actually litigated and determined 
 in the original action, not what might have been thus litigated 
 and determined."^ 
 
 We will now consider these two classes of matters in the 
 order above named. 
 
 I. What Causes of Action and What Defenses are Barred and 
 Why. 
 
 § y2. Whether contested or not, a final judgment on the 
 
 merits, by a court having jurisdiction: i, extinguishes the 
 
 whole cause of action sued on, by declaring that it does not 
 
 exist or by making it over into a judgment; and, likewise, 2, 
 
 extinguishes all counterclaims, by denying or allowing them; 
 
 'Cromwell v. County of Sac, cases 126, 127. See also: Freeman on 
 Judgments §249; Black on Judgments §§ 504, 506. 
 f 
 
§ 73 JUDGMENTS. 82 
 
 and, 3, extinguishes all defenses to all claims and counterclaims, 
 by declaring that they do not exist or by making them into a 
 judgment. Therefore, no demand set up by the plaintiff in 
 his complaint, or by the defendant in his counterclaim, and 
 prosecuted to judgment, and no defense to any claim or coun- 
 terclaim, whether the defense was presented or not, can be 
 taken into account in any other action between the same parties 
 while that judgment stands. If the demand or counterclaim 
 was denied it cannot be considered again, because the judgment 
 proves that it is unfounded. If it was allowed in part only it 
 cannot be considered again, because the judgment proves the 
 remainder unfounded. As to the part allowed, or the whole if 
 all was allowed, that cannot be considered again, because it 
 has been made into a judgment in his favor or allowed as a 
 payment on the demand against him. He asked that this be 
 done. If a farmer requests a miller to grind his wheat and 
 accepts the ground product he should not then ask for the 
 return of his wheat also, and it would do him no good if he 
 did. The situation is much the same in the case under con- 
 sideration. 
 
 § 73. . Application of the Doctrine of Merger. The 
 doctrine of merger has often been discussed by courts and text- 
 writers in this connection. There can be merger only into 
 something greater. The smaller cannot contain the larger. 
 Applying these principles, it has been held in England, that a 
 debt on a bond was not extinguished by judgment being recov- 
 ered thereon in a court not of record ;* and that execution might 
 issue on a judgment in the king's bench after judgment recov- 
 ered thereon in the common pleas.^ In other words, it was 
 held that the judgment extinguishes only what is inferior to 
 itself. On the same theory a few American courts have held 
 a judgment not to be extinguished by another judgment being 
 
 'Higgens's Case, 6 Coke Rep. 44b, 4Sa, b. 
 "Preston v. Perton, Cro. Eliz. 817. 
 
83 EFFECT AS ESTOPPEL. § 74 
 
 recovered thereon." But the majority of the American courts 
 hold that the new judgment destroys the old/ though rendered 
 by a court of another state.^ Yet, there can be no merger, for 
 the two are equal. Some have said the original cause is extin- 
 guished, because allowing a new suit would encourage useless 
 litigation, vexatious to the defendant and without benefit to the 
 plaintiff. That is a poor argument; for no one denies that 
 the plaintiff may sue on his judgment at once if not paid, and 
 again on his new judgment, and so on as often and as many 
 times as he wishes. Mr. Freeman suggests, that to allow a 
 judgment to remain and be enforced by execution after another 
 judgment had been recovered on it, might enable a vast amount- 
 of property to be seized, sold, and absorbed in costs, on one 
 small demand, to the ruin of the defendant." Yet, where it is 
 held that the creditor may have as many judgments as he will,. 
 it is agreed that he can have but one satisfaction. That the 
 claim has passed in rem judicatam, become a thing adjudicated, 
 furnishes a sufficient reason in every case where the cause of 
 action or defense is held to be barred, and no other reason will! 
 always answer ; which convinces me that the only true founda- 
 tion in every case is res judicata. 
 
 . § 74. Only the Cause ok Action Sued on and De- 
 fenses TO IT Are Extinguished. Therefore: i, other per- 
 sons' causes of action are not extinguished; 2, the plaintifif's 
 other causes of action are not extinguished ; and we may add a 
 further qualification, 3, certain incidents of the plaintifif's cause 
 of action remain. Of these in their order. 
 
 I. The rights of other persons are not extinguished by 
 the judgment. Their rights are not in issue, cannot be tried ; 
 and it would not be just to cut them off without a trial. From 
 this it necessarily follows that when the defendants are prin- 
 
 'Mumford v. Stocker, cases 480 • Andrews v. Smith, 9 Wend. 53 ; Gris- 
 wold V. Hill, 2 Paine (U. S.) 492, Fed. Cas. No. 5836; Weeks v. Pearson^ 
 5 N. Hamp. 324. 
 
 'Freeman on Judgments § 216. 
 
 'Gould V. Hayden, 63 Ind. 443- 
 
 "Freeman on Judgments § 216. ^ 
 
§ 74 JUDGMENTS. 84 
 
 cipal and surety they remain so as between themselves after 
 judgment as before;^ if they were tortfeasers, and therefore 
 not entitled to contribution from each other, they are not 
 entitled to contribution afterwards/ So, where a person has 
 a right of action in two capacities, his recovery in one capacity 
 will not bar his recovery in the other, So, a judgment against 
 the maker of a note m favor of one indorser does not bar an 
 action by another indorser who has paid the note/ 
 
 2. The plaintiff's other causes of action are not extin- 
 guished. To' determine whether the cause of action sued on 
 and the one on which judgment was formerly recovered are 
 the same, often involves the perplexing question of separable 
 and inseparable causes of action. We cannot go into the ques- 
 tion here, otherwise than to say that only one judgment can be 
 recovered for the one cause of action. The plaintiff cannot 
 split up his demand. If he sues and recovers for a part his 
 right to the remainder is gone. But, on the other hand, the 
 plaintiff may have several causes of action against the same 
 debtor, and suit and recovery upon one does not extinguish the 
 right to sue and recover upon the others. Where a right of 
 action is joint and several b)^ the original agreement, or is made 
 so by statute, suit and recovery of judgment against one does 
 not bar the future action against the others. So, too, when a 
 mortgage or a note of a third party is given as security for a 
 debt, judgment against the third party on the note, or decree 
 foreclosing the mortgage, does not extinguish the debt.* Like- 
 wise, taking judgment against a garnishee does not extinguish 
 the principal judgment.' 
 
 'Fairchild v. Lynch, 99 N. Y. 359, 2 N. E. 20. Under the general issue, 
 In debt on judgment brought against the surviving debtor, it was held error 
 to exclude evidence that defendant was only surety on the original debt and 
 had released his security relying on plaintiff's statement that the debt had 
 been paid. Carpenter v. King, 50 Mass. (9 Mete.) 511, 43 Am. Dec. 403. 
 Same effect, Rice v. Morton, 19 Mo. 263, and cases cited. 
 
 ^Percy v. Clary, 32 Md. 245. 
 
 "Freeman on Judgments § 227a. 
 
 'Burnheimer v. Hart, 27 Iowa 19, 99 Am. Dec. 641 ; Evansville Gas- 
 light Co. V. State,, 73 Ind. 219, 38 Am. Rep. 129. 
 
 'Brice v. Carr, cases 2Ci. 
 
85 J^FFFXT AS ESTOPPEL. § 75 
 
 3. Certain incidents.- of the plaintiff's original demand 
 remain incidents of the judgment. In many cases courts will 
 look behind the judgment to discover on what it is based, to 
 the end that it may be correctly interpreted.^ For example, if 
 the debt sued on was the purchase price of a homestead, the 
 homestead would not be exempt from execution on the judg- 
 ment, and generally the taking of judgment on a debt does not 
 release the security for that debt." 
 
 2. What Matters Aside from the Claims, Counterclaims, and 
 Defenses are Concluded. 
 
 § 75. Having determined what causes of action, coun- 
 terclaims, and defenses are barred by the judgment, we now 
 ask. Upon what matters does the judgment conclude the par- 
 ties in another action upon a different claim ? The answer to 
 this question is thus given by Judge Van Fleet in his recent 
 treatise on this subject : "From the numerous conflicting deci- 
 sions, I have deduced what seems to me to be the correct prin- 
 ciples, and give them for what they are worth." * * * 
 
 § 76. "C0LLATER.'>iLLY IN QUESTION, OR DiRECTLY UPON 
 
 THE Point. Among other things, it was said in the Duchess 
 of Kingston's Case that the judgment of a court of concurrent 
 jurisdiction, 'directly upon the point,' was conclusive upon the 
 same matter directly in question in another court ; but that the 
 judgment of no court was evidence of any matter which came 
 'collaterally in question.' The principle involved in these 
 two rules seems quite plain, nevertheless the cases differ in their 
 application. Much of the difficulty arises, as it seems to me, 
 from confusing the words, 'point,' 'matter,' and 'question,' with 
 the word 'issue.' A suit may involve but a single issue, and 
 
 'Freeman on Judgments § 215. 
 
 "White V. Simpson, 107 Ala. 386, 18 South. 151 ; Muncie Nat. Bank v. 
 Brown, 112 Ind. 474; McCuUough v. Hellman, 8 Ore. igi ; Fisher v. Fisher, 
 99 Mass. 303. 
 
§ 77 JUDGMENTS. • 86 
 
 yet the points, matters, and questio* of law and fact, which 
 tend to sustain its affirmative or negative, may be numerous. 
 It is the affirmative or negative of this issue which the respect- 
 ive parties bend all their energies to sustain, and which is the 
 matter 'directly' under consideration ; while the evidence intro- 
 duced, and the subsidiary questions of law and fact which they 
 seek to establish in order to determine the issue in controversy, 
 are matters 'collaterally in question,' which do not become 
 things adjudicated. For instance, in a contest over a will, in 
 which the sole issue is soundness or unsoundness of mind, there 
 may be a hundred matters of controversy, and the jury may 
 be required to determine that many questions by answers to 
 special interrogatories ; nevertheless, all these questions are 
 merely collateral, and cannot be used as evidence between the 
 same parties in another cause." ^ 
 
 § yy. Inferable by Argument. It was. said in the 
 Duchess of Kingston's Case that "neither the judgment of a 
 concurrent nor exclusive jurisdiction is evidence * * * of any 
 matter to be inferred by argument from the judgment." This 
 statement means that the judgment is not evidence of any mat- 
 ter in issue, which probably was, but might or might not have 
 been, the true ground of recovery." 
 
 2. PARTIES AND PRIVIES. 
 
 Judgments in Rem Distinguished. 
 
 § 78. Having considered at some length the matters to 
 which the estoppel relates, we come now to consider what per- 
 sons are estopped. In this connection, it becomes important 
 to distinguish between judgments in rem and judgments in 
 personam, and between the cause of action and the issues 
 
 'Van Fleet's Former Adjudications, p. 27. Compare: Freeman on Judg- 
 ments §§ 256, 257. 
 
 "Kitson V. Farwell, cases 123 ; Freeman on Judgments § 258. 
 
87 EFFECT AS ESTOPPEL. § 79 
 
 decided, as already explained. Judgments in personam are 
 those establishing or denying claims or obligations of persons. 
 Judgments in rem are those fixing the status of things. The 
 same judgment may be in rem and in personam. Thus, when 
 a person contests the probate of a will and it is received for 
 probate, the judgment is in personam and in rem as to him, and 
 it is in rem as to all who did not become parties to the proceed- 
 ings. .He is bound as to the issues decided, and also as to the 
 cause of action. Those who did not become parties are bound 
 only as to the cause of action. As to the matters decided, a 
 judgment in rem concludes no one but those who became par- 
 ties, and as to them it is a judgment in personam also. But 
 as to the cause of action, which in such cases is always to fix 
 the status of the thing, it binds everyone in the world if it be 
 in rem generally; or if it be in rem. as to certain persons, such 
 as attachments without personal service or appearance, it binds 
 them and their privies. With this much to distinguish pro- 
 ceedings in rem, let us see who are bound by judgments in 
 personam. 
 
 Plan of Treatment. 
 
 § 79. We have already learned that judgments in per- 
 sonam operate as res judicata only in suits between the same 
 parties or their privies. Therefore, nothing remains to be 
 said except to determine: i, in what suits judgments bind 
 parties or their privies; 2, who are parties; and, 3, who are 
 privies. Of these in their order. 
 
 In What Suits Judgments Bind Parties and Privies. 
 
 § 80. I. A judgment neither binds nor benefits strangers. 
 Strangers are not bound, because they have had no day in court. 
 A judgment never binds parties in their actions with strangers, 
 because it would be unjust that anyone should bind another by 
 a trial in which he himself was not exposed to the peril of 
 
§ 81 JUDGMENTS. 8& 
 
 being equally bound if the judgment had been the other way.^ 
 
 2. For the same reason, there is no estoppel between the 
 parties themselves unless both are bound by the judgment, as 
 the defendant would not be in cases of attachment without serv- 
 ice or appearance. The estoppel must be mutual.^ 
 
 3. Parties to an action who were not adversaries are not 
 bound to each other by the judgment therein. A judgment in 
 favor of A, against B and C, is not res judicata between B and 
 C, because their rights were not in issue and could not be tried.* 
 
 4. A party is not estopped or benefited by an earlier judg- 
 ment in which he sued the other party or was sued by him in a 
 different capacity.^ 
 
 5. There is a difference of opinion as to whether judg- 
 ments operate as res judicata in subsequent actions between the 
 same parties on one side and some of the parties on the other. 
 But the majority of the courts favor applying the estoppel.^ 
 
 6. A similar difference of opinion exists where new par- 
 ties are added on either side. As to the cause of action, the 
 party claiming it would seem to be estopped, because it is barred 
 by or changed into the judgment, and the strangers could not 
 object. But as to the issues tried, the new party is not bound, 
 and why should the opposite party be ?^ 
 
 Who are Parties. 
 
 § 81. Judgments and decrees are conclusive only between 
 parties and privies therto. According to Greenleaf, "those are 
 held to be parties who have a right to control the proceedings, 
 to make defense, to produce and cross-examine witnesses, and 
 to appeal from the decision if appeal lies."' This statement 
 
 'Freanan on Judgments § 154; Black on Judgments §§ S34, 600. 
 "Freeman on Judgments § 159. 
 
 "Freeman on Judgments § 158; Black on Judgments § 599. 
 *Leggott V. Great N. Ry. Co., i Q. B. Div. 599; Freeman on Judg- 
 ments § 156; Black on Judgments § 536. 
 
 "Freeman on Judgments § 160; Black on Judgments §543. 
 "Freeman on Judgments § 161 ; Black on Judgments § 544. 
 'l Greenleaf on Evidence, § 535 ; Ruff v. Ruff, cases 121. 
 
89 EFFECT AS ESTOPPEL. § 82 
 
 may be agreed to if it be understood that the persons mentioned 
 have been brought into court by due service of process, or have 
 voluntarily entered appearance, or are actually present and par- 
 ticipating in the proceedings, in person or by attorney. The 
 record will usually show who the parties were; but a party 
 suing, sued, prosecuting, or defending, by a wrong name or 
 in the name of another, is as much estopped by the judgment 
 as if he had been named in the record f and parol evidence is 
 competent to show his connection with the proceedings.' But 
 the person in whose name the action was brought is not bound 
 by the judgment if he had not the rights of control above men- 
 tioned. 
 
 Who are Privies. 
 
 § 82. If a person is bound by a judgment, as a privy tO' 
 one of the parties, it is because he has succeeded to some right, 
 title, or interest of that pfirty in the subject matter of the liti- 
 gation, and not because there is privity of blood, law, or repre- 
 sentation between them, although privity of the latter sort may 
 also exist. It must, also, be remembered that privies are not 
 as such, estopped as to the issues tried beyond controversies 
 affecting their estate in the subject of the action. In order to 
 create this relationship two ret|uisites must exist. In the first 
 place, the person who is to be thus connected with the judg- 
 ment must be one who claims an interest in the subject affected, 
 throttgh or under one of the parties. In the second place, 
 privies, in such sense that they are bound by the judgment, are 
 those who acquired their interest in the subject matter after 
 the commencement of the action; if their title or interest 
 attached before that time, they are not bound unless made par- 
 ties. He who takes title through a party while a suit is pending 
 concerning the property, takes it subject to the judgment that 
 
 'Black on Judgments §§ S37-54I- 
 
 "Res Judicata, 21 Am. & Eng. Ency. L. (ist ed.) 141. 
 
§ 83 JUDGitENTS. 90 
 
 may thereafter be rendered in that suit.^ But neither a party 
 nor a privy is estopped by the judgment from setting up a title 
 acquired from a stranger too late to be tried in the action.^ 
 
 3. WHAT IS A SUFFICIENT JUDGMENT. 
 
 Plan of Treatment. 
 
 § S3. In all that has been said up to this point, a sufficient 
 judgment has been presumed. We must now determine what 
 is a sufficient judgment to operate as an estoppel as to the cause 
 of action and the issues tried. The essentials may be summed 
 tip by saying that there must be : i, a judgment; 2, of a court 
 of competent jurisdiction; 3, final; 4, on the merits; 5, subsist- 
 ing; and, 6, in personam. Let us review these in the order 
 named. 
 
 I. A Judgment. 
 
 § 84. A verdict does not estop. There must be judg- 
 ment. Action may be maintained and judgment recovered 
 notwithstanding a prior verdict found in another action be- 
 tween the same parties on the same demand, whether that ver- 
 dict sustained or denied the claim, and the issues tried are still 
 open to dispute." In England it is held that the creditor who 
 has recovered judgment in another country may sue on the 
 original demand or on the judgment at his option.* But in 
 Louisiana the original demand was held to be extinguished 
 "by the judgment in a foreign country ;'^ and the rule is always 
 
 'Freeman on Judgments § 162 ; Van Fleet's Former Adjudication, p. 
 ■QIC ; Black on Judgments § 549 ; Res Judicata, 21 Am. & Eng. Ency. L. 
 (ist ed.) 139. 
 
 ^Freeman on Judgments §,329. 
 
 'Black on Judgments § 682 ; Freeman on Judgments § 251 ; Van Fleet's 
 Former Adjudication, pp. iig-121. Compare: Lehmann v. Farwell, cases 
 392. 
 
 *Freemari on Judgments § 220 ; Black on Judgments § 847. 
 
 "Jones V. Jamison, 15 La. Ann. 35. See also Wood v. Gamble, 11 Cush. 
 (Mass.) 8, 59 Am. Dec. 135. 
 
'91 EFFECT AS F.STOPPEL. § 85 
 
 applied in the United States as to judgments rendered in one 
 of the states." Thus, when a debtor had some property in New 
 Hampshire and some in New York, but not enough in either 
 place to satisfy the whole claim, it was held, that, by suing and 
 taking judgment in New York while his action was pending 
 in New Hampshire, the creditor barred the further prosecution 
 of his original action in New Hampshire.' In England and 
 America, it is now settled that a foreign judgment sustaining 
 ■or denying the claim is conclusive as to the validity and amount 
 of the demand f and it should, therefore, be held to bar a new 
 recovery on the original demand. The same reasons which 
 make foreign judgments conclusive as to the cause of action 
 make them conclusive as to the issues decided." 
 
 2. Of a Court of Competent Jurisdiction. 
 
 § 85. If the court had not jurisdiction of the particular 
 -case before it its judgment is of no effect for any purpose, as 
 we have seen. But if the court had jurisdiction a judgment 
 of a justice of the peace, though rendered in another state,^ is 
 ;as binding concerning the cause of action as the judgment of a 
 ■court of last resort would be, and it matters not that it is erro- 
 neous.^ What has just been said has reference to the cause of 
 action. The rule as to the effect of a judgment as an estoppel 
 •concerning the issues decided is different. In this respect 
 there is a distinction made, depending on the scope of the juris- 
 diction of the court rendering the judgment. In the Duchess 
 .of Kingston's Case it is said to turn on the jurisdiction being 
 .exclusive or concurrent. As to this Judge Van Fleet says : 
 "But I do not think the exclusiveness was of any moment. It 
 
 'Freeman on Judgments §§ 220, 221. 
 'Child V. Eureka Powder Works, 45 N. Hamp. 547. 
 'Black on Judgments §§825-834; Merger, 15 Am. & Eng. Ency. L. 
 (ist ed.) 340; Hilton v. Guyot, 159 U. S. 113, Dwyer's Cases Int. L. 310. 
 °Res Judicata, 21 Am. & Eng. Ency. L. (ist ed.) 281. 
 'Ault V. Zehering, 38 Ind. 429. 
 
 ''Black on Judgments §§ 522, 681 ; Van Fleet's Former Adjudication, 
 :p. 96; Rood on Garnishment § 215. 
 
§ 86 JUDGMENTS. 92' 
 
 seems to me that it was the completeness of the jurisdiction 
 which gave conchisive force to the adjudication in other courts. 
 In other words, if the jurisdiction had been concurrent in sev- 
 eral courts, as frequently happens in America, the adjudica- 
 tion would have been none the less conclusive. If an issue is- 
 directly made in any court which has complete jurisdiction to 
 determine it. the adjudication is conclusive in all other judicial 
 proceedings. * * * The correct principle involved, in my opin- 
 ion, in the phrase 'court of concurrent jtirisdiction,' was first 
 formulated by a British court sitting in India, as follows : 'In 
 order to make the decision of any court final and conclusive in 
 another, it must be a decision of a court which would have had 
 jurisdiction over the matter in the subsequent suit in which the- 
 first decision is given in evidence as conclusive.' * * * Thus, 
 if the same instrument purports to convey a horse and a tract 
 of land, and the purchaser, relying upon it as his sole evidence- 
 of title, replevies the horse before a justice of the peace, that 
 officer must determine its validity. But his determination can- 
 not be used as evidence in a contest over the real estate over 
 which he had no jurisdiction."' 
 
 3. Final. 
 
 § 86. The same reasons which require that the verdict 
 should not, by itself, be regarded as conclusive, are equally 
 applicable to interlocutory judgments and decrees. Moreover, 
 the court that rendered them may modify them at any time, and 
 they should not be more conclusive in other courts. Such 
 orders do not bar another recovery for the same cause,^ and 
 do not estop as to the issues decided.^ 
 
 'Van Fleet's Former Adjudication, pp. 29, 30, 31. Compare: Hibshman. 
 V. Dulleban, cases 119; Black on Judgments §516. 
 
 ^Black on Judgments §695; Freeman on Judgments §251. 
 "Black on Judgments § 509. 
 
93 EFFECT AS ESTOPPEL. § 87 
 
 4. On the Merits. 
 
 § 87. The estoppel of a judgment is confined to those 
 matters actually decided. Therefore, a judgment for the de- 
 fendant, because the court had no jurisdiction to hear his com- 
 plaint or grant him relief, or because he has misconceived his 
 action, or has not brought in the proper parties, or has not set 
 the 'cause forth in proper form, or has sued prematurely, will 
 not prevent his prosecuting a new action in a competent court, 
 on a sufficient complaint, against the proper parties, for the 
 same cause, after it has matured. But as to the matters act- 
 ually decided by such final judgment, the parties are as much 
 bound as by any other judgment." 
 
 5. Subsisting. 
 
 § 88. If the judgment is set aside or in any way annulled, 
 the cause of action on which it was rendered comes to life again, 
 the same as if no judgment had ever been rendered.' But no 
 such effect is produced by merely staying the enforcement of 
 it, or taking an appeal from it,* or moving for a new trial." In 
 most states the parties are held to be estopped as to the issues 
 decided, though an appeal be pending.^ 
 
 6. In Personam. 
 
 § 89. A. judgment by which the defendant is not bound 
 does not merge the cause of action. For example, if judg- 
 ment be recovered in attachment without personal service, 
 though the attached property is bound by the judgment, the 
 defendant is not; and, for any balance remaining unpaid by 
 the proceeds of the attached property, the creditor may main- 
 
 "Freeman on Judgments §§260-269; Black on Judgments §§693-719. 
 
 'Black on Judgments § 683 ; Goodrich v. Bodurtha, 72 Mass. (6 Gray) 
 323; Fries v. Pa. Ry. Co., 98 Pa. St. 142. Reversal as to one defendant 
 enables new action against all. Maghee v. Collins, 27 Ind. 83. 
 
 "Cloud V. Wiley, 29 Ark. 80; Bank of N. A. v. Wheeler, 28 Conn. 433, 
 73 Am. Dec. 683. 
 
 'Young V. Brehe, 19 Nev. 379, 12 Pac. 564. 
 
 'Van Fleet's Former Adjudication, p. 126. 
 
§ 89 JUDGMENTS. 94 
 
 tain an action on the original demand." Likewise, judgments 
 rendered against all the debtors when only part of them are 
 served, which is permitted by statute in several states, does not 
 extinguish the demands sued on, for those not served are not 
 bound by the judgment; and afterward the creditor may sue 
 the others or all on the original cause of action.^ Yet, if only 
 a part are sued when all might have been, the judgment against 
 them extinguishes the cause of action, and the plaintiff cannot 
 hold the others afterward.^ xA-S to the issues tried, we have 
 already seen that there is no estoppel in any action merely in 
 rem, because the estoppel must be mutual, and, as those who do 
 not become parties are not estopped, they cannot set up the 
 estoppel against those who have become parties. 
 
 "National Bank v. Peabody, 55 Vt. 492, 45 Am. Rep. 632 ; Oil Well S. 
 Co. V. Koen (.Ohio), 60 N. E. 603. 
 
 'Mason v. Eldred, 73 U. S. (6 Wall.) 231; M-rchem's Cases Partn. 343; 
 Bonesteel v. Todd, 9 Mich. 371, 80 Am. Dec. 90; Stone v. Wainwright, 147 
 Mass. 201. 
 
 'Freeman on Judgments §§ 231, 232. 
 
6. SATISFACTION OF JUDGMENTS. 
 
 Plan of Treatment, § 90. 
 
 A. Processes to Obtain Satisfaction, §§ 91-212. 
 
 1. Nature of tJie Processes, §§ 91-104. 
 
 2. Issuing the Processes, §§ 105-147. 
 
 .?. Execution of the Processes, §§ 148-212. 
 
 B. What Constitutes a Satisfaction, §§ 213-220. 
 
 C. Rights After Satisfaction, §§ 221-225. 
 
 Plan of Treatment. 
 
 § 90. We have considered : i , the nature and essentials ; 
 2, kinds; 3, record; 4, vacating and modifying; 5, effect; and 
 are now ready to take up the last grand division of our sub- 
 ject, 6, the satisfaction of judgments. Most of the questions 
 that arise in this connection concern the processes used to 
 enforce satisfaction. These, we will fir.st consider. When 
 we have finished the consideration of these, we will consider a 
 few minor matters concerning satisfaction, aside from the proc- 
 esses used to enforce. In considering the questions which 
 arise in the use of the means of enforcing we will inquire: i, 
 concerning the nature and kinds of processes by which judg- 
 ments are enforced; 2, concerning the questions that arise in 
 issuing the processes; 3, concerning the questions that arise in 
 executing the processes. 
 
A, PROCESSES TO OBTAIN SATISFACTION. 
 
 I. NATURE OF PROCESSES. 
 
 What Judgments need no Execution, § gi. 
 
 Enforcement by Coercion, § 92. 
 
 Execution by an Officer U nder Process of the Court, § 93. 
 
 Various Processes Used to Enforce Judgment, §§ 94-104. 
 
 Plan of Treatment, § 105. 
 
 What Judgments Need no Execution. 
 
 § 91. The judgment has been said to be the end of the 
 law in regard to the controversy; and such it is whenever it 
 declares the existing status to be the just one. So, too, where 
 the judgment or decree is self -executing, which I believe it to 
 be whenever the thing awarded is not capable of manual deliv- 
 ery. For example, a process to take an office from one man 
 and give it to another would be a troublesome thing to execute. 
 The sheriff could hardly convince the one party that he had 
 received or the other that he had been disrobed of it. But in 
 most cases the judgment would amount to nothing if the law 
 did not provide means of putting it into effect. 
 
 Enforcement by Coercion. 
 
 § 92. Satisfaction of judgments and decrees may be en- 
 forced: I, by coercing him against whom the judgment or 
 decree is pronounced till he satisfies it ; 2, by an officer putting 
 the judgment into effect under the direction of the court. The. 
 coercion may consist of imprisoning the defendant or seizing 
 and holding his property or both. At one time, this means of 
 enforcement was available on every judgment at law, and was 
 the only means^ of enforcing decrees of the court of chancery. 
 Now, we have statutes rendering decrees enforceable in any 
 
97 NATURE AND KINDS. § 93 
 
 way that a similar judgment might be enforced; and coercion 
 is not now available to enforce satisfaction of any judgment 
 for the payment of money merely, except in certain cases speci- 
 fied in the statute, and usually is confined to judgments for 
 torts, frauds, or misconduct in office. But this is the usual 
 method of enforcing the final orders at law in the extraordi- 
 nary actions — mandamus, procedendo, prohibition, habeas cor- 
 pus, etc. Attachment is the generic term applied to all writs 
 designed to coerce obedience or punish for contempt ; and this 
 was the only sense in which the word was used by the courts 
 until the modern practice was introduced, of seizing property 
 belonging to the defendant and holding it to furnish a fund 
 for the satisfaction of a judgment yet to be rendered. 
 
 Execution by an Officer under Process of the Court. 
 
 § 93. All the judgments in the ordinary actions at law 
 which need putting into- effect, may be executed by the court's 
 officer without attempting to coerce the defendant to satisfy 
 them. The judgments in these actions which may require 
 execution are : i , for a sum in money, as in assumpsit ; 2, for 
 a specific chattel, as in replevin ; 3, for a specific parcel of land, 
 as in ejectment; 4, for any combination of these, as when in 
 replevin judgment for defendant is given for costs in money, 
 for the return of the specific chattel, and if the chattel cannot 
 be had, then for a specified equivalent in money. The execu- 
 tion which may issue upon any judgment will depend upon the 
 class to whith the judgment belongs, for the execution must 
 correspond to the judgment to be enforced. 
 
 The Various Processes used to Enforce Judgments. 
 
 § 94. Execution is the act of putting something into 
 effect. Every process issued with a view of putting a judg- 
 ment into effect may properly be termed an execution. Even 
 attachment, garnishment, replevin, and other writs designed 
 
§ 95 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 98 
 
 to provide in advance for the satisfaction of the judgment, are, 
 in one sense, only anticipatory executions. All of these are 
 sufficiently embraced in the definition of an execution as the 
 command of the law made by the court in writing, solemnly 
 directing the judgment to be put into effect, and usually speci- 
 fying the method of proceeding with greater or less certainty. 
 The following are some of the principal writs partaking of the 
 nature of an execution. 
 
 § 95. Replevin, a common law action, demands mention 
 here, because its original process is in effect ah execution, com- 
 manding the officer to make immediate restitution to the plain- 
 tiff and at the same time to summon the defendant to answer 
 the plaintiff in court. Here we have the relief granted first, 
 and the right to it tried afterward. This was the only common 
 law action in which relief was given before judgment. 
 
 § 96. Attachment, in its most comprehensive sense as 
 a legal term, means : : , the act of taking the body or effects 
 of any person into custody and so holding the same to abide 
 the further orders of the court ; or, 2, any process commanding • 
 such acts to be done. Any process commanding the taking of 
 the body is called a capias. The most common attachment of 
 this kind is the capias ad respondendum, commanding the offi- 
 cer to arrest and detain the defendant till he enters appearance 
 in the action with bond to satisfy whatever judgment may be 
 recovered therein. At the present time the most common 
 attachment is the one commanding the officer to seize property 
 of the defendant to a specified amount and hold it, the purpose 
 being to order it sold when judgment is rendered, and to apply 
 the proceeds in satisfaction of the judgment. 
 
 § 97. Gaknishment consists of notifying someone to 
 retain something he has belonging to the defendant, to make 
 disclosure before the court concerning it, and to dispose of it 
 as the court shall direct. A person so summoned is called a 
 garnishee. The proceeding has been likened to a subpcena to 
 
99 NATURE AND KINDS. § 97 
 
 a witness, in that it i s a summons to give testimony in an action 
 between others upon being paid the mileage and fees of a wit- 
 ness.^ In another aspect it has been seen to resemble an injunc- 
 tion against disposing of property, the disobedience of which 
 is a Qontempt of court for which the garnishee may be pun- 
 ished.^ Again, it may be compared to an order appointing a 
 receiver; for when served the property in his possession is in 
 the custody of the law, and the garnishee is merely the hand 
 of the court, even as a sherifif holding property under an attach- 
 ment or an execution." The garnishing creditor discerns in it 
 only an attachment or execution ancillary to his action or to 
 enforce his judgment. Tie sees in the garnishee an officer of 
 the court holding the property under his writ, for which he is 
 seeking to compel the garnishee to account. But the garnishee 
 sees in it an action against him by his creditor for the benefit 
 of his creditor's creditor — an action commenced by filing a 
 sworn complaint (the garnishment affidavit), issuing and serv- 
 ing a summons to appear and defend, liable to be followed by 
 a judgment for default if he does not plead within the pre- 
 scribed time, likely to result in issue being joined and trial 
 demanded if he appears and denies the complaint, which action 
 despite his stoutest defense may lead to a judgment against 
 him, enforceable by seizing and selling any of his property not 
 exempt from execution, as any other judgment lyould be. 
 These partial resemblances remind us of Saxe's Hindoo tale 
 of the four blind men and the elephant, and show how unlike 
 anything but itself garnishment is. Under some statutes gar- 
 nishments issue ancillary to an execution ; under others, ancil- 
 lary to an attachment; under others, independently, as a form 
 of attachment if before judgment, as a form of execution if 
 after judgment. The student should consult the statutes of 
 
 'Rood on Garnishment §§ i8i, 269. 
 
 ''Lilienthal v. Wallach, 37 Fed. Rep. 241 ; Johann v. Rufenei;, 32 Wis. 
 198. 
 
 •Stiles V. Davis, 66 U. S. (i Black) loi. 
 
§ 98 ATTACHMENTS^ GARNISHMENTS, AND EXECUTIONS. 100 
 
 his State to ascertain in which of these forms they authorize 
 the proceeding. 
 
 § 98. Fieri Facias (fi. fa.) is an execution command- 
 ing the sheriff, or other officer addressed, to seize and sell 
 enough of the defendant's property to satisfy a judgment 
 therein specified with the amount, and to bring the proceeds 
 into court. This is one of the oldest, and to this day one of 
 the most common of all writs of execution. At the common 
 law, only goods and chattels could be taken and sold under this 
 writ;* but in this country since 1732,'' the fee or any other 
 legal estate in lands may be seized and sold under a fieri facias 
 against the owner. In some states the land can be sold only 
 in case there is a bid for it at the sale equal to a certain per 
 cent of the value fixed by the appraisers at the time of the levy, 
 and in others it can be levied on only in case sufficient chattels 
 liable to execution cannot be found." 
 
 *Harbert's Case, cases 137. Blackstone says a term for years could be 
 sold as a chattel under a fi. fa. at the common law. 3 Bl. Com. 417. Now, 
 in England, by statute, 27 and 28 Vic, 1864, freeholds delivered in execution 
 to the creditor may be ordered sold. 
 
 "Statute 5 Geo. II., Cap. 7, § 4 [A. D. 1732].— Whereas his Majesty's 
 subjects trading to the British plantations in America lie under great diflfi- 
 culties, for want of more easy methods of proving, recovering and levying 
 of debts due to them, than are now used in some of the said plantations : 
 and whereas it will tend very much to the retrieving of the credit formerly 
 given by the trading subjects of Great Britain to the natives and inhabitants 
 of the said plantations, and to the advancing of the trade of this kingdom 
 thither, if such inconveniences were remedied; may it therefore please your 
 Majesty * * * 
 
 IV. And be it further enacted by the authority aforesaid. That from 
 and after the said twenty-ninth day of September, one thousand seven hun- 
 dred and thirty-two, the houses, lands, negroes, and other hereditaments and 
 real estates, situate or being within any of the said plantations belonging to 
 any person indebted, shall be liable to and chargeable with all just debts, 
 duties and demands of what nature or kind soever, owing by any such per- 
 son to his Majesty, or any of his subjects, and shall and may be assets~for 
 the satisfaction thereof, in like manner as real estates are by the law of 
 England liable to the satisfaction of debts due by bond or other specialty, 
 and shall be subject to the like remedies, proceedings and process in anj 
 court of law or equity, in any of the said plantations respectively, for seizing, 
 extending, selling or disposing of any such houses, lands, negroes, and other 
 hereditaments and real estates, toward the satisfaction of such debts duties 
 and demands, and in like manner as personal estates in any of the said 
 plantations respectively are seized, extended, sold or disposed of, for the 
 satisfaction of debts. 
 
 "In Illinois the plaintiff may elect as to what shall be taken, "provided 
 personal property shall be last taken." Kurd's Stat. (1899) p. 1049 § 11 
 
101 NATURE AND KINDS. § 99 
 
 §99. Capias AD .Satisfaciendum (Ca. Sa.) is an exe- 
 cution commanding the officer to arrest and imprison the de- 
 fendant till the judgment against him is satisfied. 
 
 § 100. Levari Facias was an execution allowed by the 
 common law, to be issued by a superior or an inferior court, 
 commanding the sheriff to seize the defendant's property and 
 hold it till the judgment was satisfied. Under this writ the 
 sheriff could seize all the defendant's goods, and take the rents 
 and profits of his lands ; but he could not sell or apply the prop- 
 erty to a satisfaction of the judgment, and the possession of 
 the land itself could not be taken.^ This writ is very little used 
 in America.* 
 
 § 1 01. Extendi Facias was an execution allowed upon 
 recognizances in certain cases. Under this writ the body, 
 goods, and all the lands of the debtor could be taken." 
 
 § 102. Elegit was an execution taking its name and 
 origin from the Statute of Westminster 2d, c. 18, 13 Edw. I, 
 A. D. 1285, which provides that when debt is recovered or 
 acknowledged in the king's court, or damages awarded, the 
 creditor may elect to ha-\'e a fieri facias or a writ commanding 
 the sheriff to deliver to him all the chattels of the debtor and 
 half of his land. Under this writ the chattels were appraised 
 and delivered to the creditor as a payment on the debt, and the 
 land was appraised and half of it delivered for such a term as 
 w^ould be necessary to get the balance of the judgment from 
 the rent at the appraised value. The creditor so in possession 
 was called the tenant by elegit. Though no land could be 
 found the chattels could not be sold under this writ but must 
 be appraised and delivered in payment.^ This writ is still in 
 use in some of the eastern states. 
 
 '3 Bl. Com. 417; Coke's Second Inst., Vol. i, p. *39S. 
 'Freeman on Executions § 6. 
 '3 Bl. Com. 420. 
 
 'Glascocke v. Morgan, i Kibble 5s6; Bacon Abr., Execution C. 2. 
 
§ 103 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 102 
 
 § 1 03. Habere Facias Seisin am, or writ of seisin of 
 a freehold, and habere facias possessionem, or writ of posses- 
 sion of a term, were executions by which the sheriff of the 
 county where the land lay was commanded to put the plaintiff 
 into actual seisin or possession of the land awarded by the 
 judgment. 
 
 § 104. Retorno Habendo was an execution on a judg- 
 ment in favor of the defendant in replevin, and by it the sheriff 
 was commanded to return the replevined chattels. 
 
 It is scarcely profitable to review the old writs further, 
 since the general name execution covers all, and a writ appro- 
 priate to the judgment to be enforced will be issued in every 
 
2. ISSUANCE OF THE PROCESS. 
 
 Plan of Treatment, § 105. 
 
 1. What is Issuing the Process, S 106. 
 
 2. On What Demands the Processes May Issue, §§ io;;-ii2. 
 
 Executions, § 107. 
 
 Attachments and Garnishments, §§ 108- 112. 
 
 3. At What Stage of the Case the Processes May be Is- 
 
 sued, §§ 113-119. 
 
 Garnishments, § 113. 
 I ■ Attachments, § 1 14. 
 
 Executions, §§ 115-119. 
 
 4. Effect of Use of One Process on Right to Another, § 120. 
 
 5. Who May Demand and Control the Processes, §§ 121-125. 
 
 Every Person Owning a Claim, § 121. 
 
 Only Persons Interested in the Claim, § 122. 
 
 Writs Issued on Others' Orders are Valid, § 123. 
 
 Remedies of Persons Injured, § 124. 
 
 Form of Demand and Proof of Authority, § 125. 
 
 6. Against Whom the Processes May be Issued, §§ 126-129. 
 
 Parties only, § 126. 
 
 All Defendants, § 127. 
 
 Any Person May be Garnished, § 128. 
 
 Limitations upon the Right to Process, § 129. 
 
 7. What Courts and Officers May Issue the Processes, 
 
 §§ 130-133. 
 
 Every Court May Enforce its Judgment, § 130. 
 No Court Can Issue Process on Judgments of 
 
 Other Courts, § 131. 
 When Process from Other Courts is Authorized, 
 
 § 132- 
 Only by the Proper Officer, § 133. 
 
 8. Form and Essentials of the Papers, §§ 134-147. 
 
 Attachment and Garnishment Affidavits, §§ 134- 
 
 139. 
 Attachment Bonds, § 140. 
 Forms and Essentials of the Processes, §§ 141- 
 
 147. 
 
 Plan of Treatment. 
 
 § 105. Having reviewed briefly the nature of the proc- 
 esses by which judgments are enforced, I come now to consider 
 the questions which arise in issuing the processes ; and should 
 like to take them up in the order in which they would arise in 
 the prosecution of the suit; but the arrangement of the ques- 
 tions must be somewhat arbitrary, because issuing the process 
 
§ ]06 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 104 
 
 is but one transaction, and such questions as are presented arise 
 substantially at the same time. 
 
 To many the treatment of attachments, garnishments, and 
 the numerous forms of execution together will seem monstrous 
 at first, because they are accustomed to seeing them treated 
 separately. Indeed, there are some matters peculiar to each, 
 which will have to be specified from time to time as we proceed. 
 But no one can fail soon to discover that most of the rules stated 
 apply to all processes alike, and that to restate them as to each 
 would be worse than useless repetition, for in that way the true 
 scope of the rules would not be shown. 
 
 The principal questions which can arise in issuing proc- 
 esses to enforce judgment are the following: i, what is issu- 
 ance of the process; 2, on what demands the processes may be 
 issued; 3, at what stage of the case the processes may be issued; 
 4, the effect of the use of one process on the right to use 
 another; 5, who may demand and control the issuance of the 
 processes; 6, against whom the processes may be issued; 7, 
 what courts may issue the processes ; 8, the form and essentials 
 of the affidavits, writs, and other papers. I will now take up 
 each of these questions in the order named. 
 
 I. WHAT IS ISSUING THE PROCESS. 
 
 § 106. It is issuing the process that gives it life and effect. 
 Writing, signing, and sealing it are only preliminary acts. It 
 is so issued as to give it effect as an issued process only when it 
 has been put into the custody of the officer who is to execute it.^ 
 Indeed, it is not then issued if it is accompanied by orders not 
 to execute till some later time."" 
 
 'Gowan v. Fountain, Cases 145 ; Alderson on Writs § 8 ; Freeman on 
 Executions § pa. 
 
 'Smallcomb v. Cross, cases 445 ; Waters v. Harman, 22 Wend. 566. 
 
105 ISSUANCE. § 107 
 
 2. ON WHAT DEMANDS THE PROCESSES MAY 
 
 ISSUE. 
 
 Executions. 
 
 § 107. In England executions might issue on recogni- 
 zances in certain cases ; and in America we often find statutes 
 providing, that, on certain bonds filed in judicial proceedings, 
 executions may issue at once upon breach of the condition of 
 the bond. But the general rule is that execution can be issued 
 only on a final, subsisting judgment." But, on the other hand, 
 execution may be issued on any final, subsisting judgment, as 
 a matter of course, though not expressly awarded by the judg- 
 ment, or even though some other means of getting satisfaction 
 be specified.^ 
 
 Attachments and Garnishments. 
 
 § 108. Limitations Enumerated. Attachments and 
 garnishments, because unknown to the common law, may be 
 issued only in cases falling within the terms of the statutes 
 authorizing these proceedings.^ From this fact arise three 
 important limitations upon the use of these processes; i, as to 
 the form of action in which they may be issued; 2, as to the 
 character of the obligation to enforce which they may be issued ; 
 3, as to the grounds or exigencies which most statutes require 
 to exist before these processes, more particularly attachment, 
 can be issued. Of these in the order named. 
 
 § 109. As TO THE Form of Action. Wherever the code 
 provides for but' one form of action, and abolishes the old 
 forms, this consideration is entirely eliminated." In the states 
 where there are several forms of action, it is important to 
 
 "Locke V. Hubbard, cases 9 ; Brightman v. Merriwether, cases 8 ; Jasper 
 V. Schlessinger, cases 3 ; Freeman on Executions § 16. 
 
 'Roberts v. Connellee, cases 78; Freeman on Executions § 16. 
 
 "Drake on Attachment § 10 ; Rood on Garnishment § 13. 
 
 'All civil actions are reduced to one form in the following states and 
 territories: Arizona: Rev. Stat. (1887) §§649, et seq. Arkansas: Dig. of 
 
■§ 110 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 106 
 
 observe that attachment and garnishment are available only in 
 such as the statutes, permit.' 
 
 § no. As TO THE Character of the Obligation. 
 The most general limitation observed in the statutes is that 
 they do not extend the use of these processes to actions brought, 
 to recover specific property.^ Such proceedings might be use- 
 ful in such actions when judgment is allowed for the value in 
 ■case the property itself cannot be found, and to secure the 
 costs in other cases, but otherwise they are not adapted to the 
 purpose of such actions. Next to this the most general limita- 
 tion is that the statutes do not make the processes available in 
 actions to recover damages arising from torts; but in a few 
 states they are allowed in such actions generally, or for certain 
 specified torts." The statutes in most states provide for attach- 
 
 Stat. ( 1894) §§ 5604, 5605. California : Code Civ. Pmc. § 307. Colorado : 
 Code §1. Connecticut: Gen. Stat. (1888) §872. Florida: Rev. Stat. 
 (1892) §§1007, 1009. Georgia: Code (1882) §3252. Idaho: Rev. Stat. 
 §289. Iowa: Rev. Code (1888) §2507. Kansas: Gen. Stat. (1889) §4087. 
 Kentucky: Code (1888) §§4, 5. Minnesota: Gen. Stat. (1894) § 5i3i- 
 Missouri: Wag. Rev. Stat. § 1089. Montana: Code Civ. Proc. (1895) §460. 
 Nebraska : Code Civ. Proc. § 2. Nevada : Gen, Stat. § 3023. New York : 
 Code Civ, Proc. § 3389. North Carolina : Code § 133. North Dakota : Rev. 
 Code (1895) §5265. Ohio: Rev. Stat. (1892) §4971. Oklahoma: Gen. 
 Stat. (1893) §3882. Oregon: Code Civ, Proc. (1892) §1. South Caro- 
 lina: Code Civ. Proc. (1893) § 89. South Dakota. Utah: Rev. Stat. (1898) 
 §2852, Washington: Bal. Code & Stat. (1897) §4793. Wisconsin: Ann. 
 Stat. (1898) §2600. Wyoming: Rev. Stat. (1887) §2360. 
 
 'Ferris v. Ferris, cases 147 ; Strock v. Little, cases 148 ; 111. Cent. R. Co. 
 V. Weaver, cases 149; Esler v. Kent, Circuit J., cases 151. 
 
 'In Arkansas attachments are allowed in actions to recover personal 
 property which cannot be obtained because concealed, removed, or disposed 
 of. Dig. of Stat. (1894) §325. 
 
 "In the following states statutes authorize attachments and garnishments 
 in actions ex delicto: Alabama: Code (1896) § 524; Atkinson v. James, 96 
 Ala. 214. Arizona: Laws, l6th Session (1891), No. 27. Connecticut: In 
 divorce suits; Gen. Stat. (1888) §891. Georgia: In all actions for 
 money; Code (1895) §4524. Illinois: In trespass and trespass on the case; 
 as allowed on application; Hurd Stat. (1899') Ch. 11, §31. Iowa: As 
 .allowed by the judge; Code (1897) §3882. Kansas: For damages from 
 crime or seduction committed in the state; Gen. Stat. (1897) Ch. 95, § 190. 
 Minnesota: "In any action for the recovery of money" (Gen, Stat., 1894, 
 §5287) was held to extend to a tort action for negligent injury; Davidson 
 v. Owens, 5 Minn. 69, Gil. 50. Mississippi : For penalty incurred by selling 
 liquor contrary to law ; Adams v. Johnson, 72 Miss. 896. Missouri : "In 
 any civil action;" Rev. Stat, (1899) §366; Pearson v. Gillettj 55 Mo, App. 
 312. Nevada: For injury from committing a crime within the state, extends 
 to damages suffered by rape ; Kuehn v. Paroni, 20 Nev. 203. New Mexico : 
 
107 ISSUANCE. ' § 111 
 
 ments in certain cases to secure debts not yet due. These pro- 
 visions extend only to absolute present debts payable at a 
 future day. From what has been said it will be seen that the 
 statutes generally extend the use of attachment and garnish- 
 ment only to actions on contracts, judgments, and decrees. 
 By interpretation, most courts have further limited the scope 
 of the use of attachment, as distinguished from garnishment, 
 by holding that the debt sued for must be : i , liquidated or 
 capable of being liquidated by some standard known to the law 
 or specified in the contract ;^ and, 2, approximately ascertained 
 when the action is commenced.^ But a few courts hold that 
 uncertainty in the amount of the demand is no objection to 
 allowing the use of attachment.''' 
 
 § III. As TO THE Grounds or Exigencies. Some 
 ground beyond the fact of an unpaid demand must exist to 
 authorize an attachment under most statutes ; but the statutes 
 differ from each other considerably in enumerating what shall 
 be sufficient grounds. Yet, all the grounds usually specified 
 indicate, in one way or another, that the plaintiff would not be 
 very likely to get satisfaction by prosecuting an ordinary action : 
 I, because the defendant is removing from the state, is now a 
 non-resident, or is a foreign corporation, for which reason he 
 could seldom or never be found within reach of a summons, 
 and if served would not be likely to have property permanently 
 
 Comp. Laws (1897) §2689. New York: For' "2, wrongful conversion of 
 personal property; 3, any other injury to personal property, in consequence 
 o^f negligence, fraud, or other wrongful act." Code t^iv. Proc. § 635. North 
 Carolina: For conversion of property; Clark's Code Civ. Proc. § 347. Ohio: 
 "For the recovery of money," if defendant "g, fraudulently or criminally 
 contracted the debt or incurred the obligation" (Bates's Stat,, 1898, § 5521) 
 was held to authorize attachment in an action for assault and battery ; Stur- 
 devant v. Tuttle, 22 Ohio St. iii; Kirk v. Whittaker, same, 115; Creasser 
 v. Young, 31 Ohio St. 57. Oklahoma : For damages arising from felony or 
 seduction committed within the territory; Gen. Stat. (1893) §4068. Penn- 
 sylvania: In foreign attachment; Brightley's and P. Dig. (12th ed.), p. 930, 
 § 6. South Carolina : For conversion of personal property ; Code Civ. Proc. 
 §248. 
 
 'Wilson V. Louis Cook Mfg. Co., cases 155, and see notes. 
 
 ^Hawes v. Clements, cases 159. 
 
 "See notes to Wilson v. Louis Cook Mfg. Co., cases 158. 
 
§ 112 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 108 
 
 within reach of execution sufficient to satisfy the judgment; 
 2, because his character is such that it is reasonable to suppose 
 he would defy execution by putting all of his property beyond 
 reach before judgment could be recovered; which dishonest 
 character is shown : a, by his having fraudulently incurred the 
 obligation sued on; b, by his having absconded or concealed 
 himself to avoid the service of process upon him ; or, c, by his 
 having assigned, concealed, or carried away his property, or 
 a part of it, to get it beyond the reach of his creditors, or hav- 
 ing threatened, prepared, or attempted to do so. 
 
 The rules to be deduced from the decisions upon these 
 statutory provisions fall naturally into two groups: i, those 
 which show what constitutes removing, non-residence, fraudu- 
 lently incurring the obligation, absconding, concealing, dis- 
 posing of property to defraud, etc. ; 2, those which apply alike 
 to all the grounds for attachments. Several of the rules be- 
 longing to the first of these classes are considerably discussed 
 in the cases given to illustrate the rules of the second class.* 
 But the matters coming within the first class are too numerous, 
 minute, and local to be considered in so elementary a treatise 
 as this." 
 
 § 112. Rules Applicable to All Grounds for At- 
 TACPiMENT. The principal rules applicable to all the grounds 
 alike may be roughly formulated as follows : 
 
 1. An attachment' obtained on one ground cannot be 
 sustained on another, though the other would have been an 
 equally good ground for issuing it." 
 
 2. When an attachment is obtained on several grounds 
 it is sustained by the existence of any of those grounds.' 
 
 ■"See cases pp. 163-177. 
 
 'For these decisions see: Attachment, §§54-121, Vol. 5, Century Digest 
 251-326; Attachment, 3 Am. & Eng. Ency. L. (2d ed.) 195-206. 
 
 "Matter of Fitzgerald, 2 Caines (N. Y.) 317; Botsford v. Simmons, 32 
 Mich. 357. 
 
 'Attachments, § 314, Century Digest, Vol. 5. 
 
109 ISSUANCE. § 112 
 
 3. When an attachment is obtained on several grounds, 
 and one of those grounds exists only as to part of the demands 
 sued on, and the other grounds alleged exist only as to the 
 remainder, the attachment will be sustained as to all. 
 
 4. When the alleged grounds for attachment exist only 
 as to a part of the demand sued on, the whole attachment will 
 usually b^ dismissed ; but this would not be done if the improper 
 item was included by mistake, nor because more was claimed 
 than proved to be due, provided there was no fraud intended. ° 
 
 5. When there are several defendants an attachment of 
 the property of all cannot be sustained without an alleged 
 ground for attachment existing as to all ; but it seems unneces- 
 sary that the same ground should exist as to all. For example, 
 the attachment might be sustained, as to one on the ground 
 that he was a non-resident, as to the others on the ground that 
 they had absconded.^ 
 
 6. The fact that a ground for attachment exists as to one 
 and not as to the others, will not enable the creditor to sue him 
 alone unless the obligation is joint and several. But, accord- 
 ing to the decisions in several courts, the property of that one 
 may be attached in a suit against all.' 
 
 7. Whatever be the ground for the attachment it must 
 be substantially made out. While the courts are inclined at 
 the present time to construe the attachment statutes liberally 
 to advance the remedy, they will not stretch the words of the 
 statute to include cases which the legislature did not intend to 
 include." 
 
 "Meyer v. Evans, cases 166, and see notes; Emerson v. Detroit S. & S. 
 Co., cases 168. 
 
 'Wiley V. Sledge, cases 163-166, and see the notes. 
 "Jackson v. Burke, cases 170. 
 
§ 113 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 110 
 
 AT WHAT STAGE OF THE CASE THE PROCESSES 
 MAY BE ISSUED. 
 
 Garnishments. 
 
 § 113. Garnishments need not be separately considered; 
 for where they are issued as attachments or ancillary to attach- 
 ments they may be issued as early and as late as other attach- 
 ments, and when they are issued as executions or antillary to 
 executions they may be issued as early and as late as other 
 executions. 
 
 Attachments. 
 
 § 114. Attachments are usually allowed by the statutes 
 to be issued at the commencement of the action or at any time 
 before judgment. For this purpose the action is commenced 
 as soon as the declaration, or complaint, is filed and before the 
 summons has been served or issued." After judgment there 
 is no occasion for issuing an attachment, because every object 
 it could serve would be as well served by issuing and levying 
 an execution ; but if an attachment should be issued after judg- 
 ment it would be sustained as a special execution, provided it 
 contained the essentials of an execution.* In the absence of 
 statute providing for reviving attachments and garnishments 
 upon death of the defendant, they are abated by his death 
 before judgment, but not by his death after judgment.'^ 
 
 Executions. 
 
 § 115. Before Recording or While Stayed. Exe- 
 cutions issued before judgment is rendered are void, not void- 
 able; and judgment subsequently rendered will not make them 
 valid. Some statutes say, that as soon as the judgment is 
 recorded, execution may issue; and several courts have held 
 
 ^Hargan v. Burch, cases 177. 
 
 'Pracht V. Pister, cases 179. 
 
 'Drake on Attachment §422; Rood on Garnishment §381. 
 
Ill ISSUANCE. § 116- 
 
 that executions issued under such statutes before the record 
 is made are absolutely void," unless the court orders the entry 
 made nunc pro tunc; but, according to other decisions, they 
 are only voidable, and generally the plaintiff is entitled to exe- 
 cution as soon as he is entitled to payment, which is the moment 
 the judgment is rendered. Reasoning by analogy from the 
 decisions on kindred questions, the better rule would seem to 
 be that executions issued after judgment rendered, but before 
 recording it, contrary to statute, are only voidable, liable to 
 be quashed on motion. For example, there is almost no dis- 
 pute but that an execution is merely irregular, and not void, 
 by reason of being issued while execution is stayed by statute,, 
 agreement of the parties, or order of court.' 
 
 § Ti6. After Judgment Becomes Dormant. At the 
 common law, execution should not issue more than a year and 
 a day after the judgment was rendered, without first reviving' 
 the judgment by scire facias; and now, though the time is con- 
 siderably extended by statute, it is usually provided that after 
 the specified time execution shall not issue without special 
 order of the court upon hearing after notice to the defendant. 
 Yet an execution issued after the year and a day at the com- 
 mon law, or after the time S]Decified in the statute, without 
 scire facias or other appropriate proceeding, was never held tO' 
 be void, but only liable'to be set aside on the defendant's motion. 
 He could not attack it collaterally, and no one else could object 
 at all.^ 
 
 § 117. After Judgment Outlawed. An execution- 
 issued on a judgment which is outlawed, so that action could 
 not be maintained on it, is generally held to be void, and the 
 purchaser at the sale thereunder acquires no title." -But when 
 the execution was issued before the judgment cutlawed, and 
 
 "Locke V. Hubbard, ca^es 9 ; Freeman on Executions § 24. 
 'Bacon v. Cropsey, cases 181 ; Abercrombie v. Chandler, cases 184 ; Free- 
 man on Executions §§ 24-26, 33. 
 'Mariner v. Coon, cases 193. 
 "Freeman on Executions § 27a. 
 
§ 118 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 112 
 
 the sale was advertised and made afterwards, the title of the 
 purchaser was held to be good.'^ 
 
 § ii8. After Judgment Satisfied. There is some 
 conflict in the decisions, but the decided weight of authority 
 is to the effect that an execution issued after the judgment is 
 satisfied, or even a sale after the judgment is satisfied on an 
 execution issued before, passes no title, even though the satis- 
 faction had not been entered on the record, and the purchaser 
 paid full value without notice. ° 
 
 § 1 19. After Death of a Party. At the common law 
 execution issued after the death of a sole plaintiff was irregu- 
 lar, unless he was only the nominal plaintiff, or the judgment 
 had been sold during his life, or revived on scire facias after 
 his death; and a few courts have held such executions void.* 
 But the judgment did not have to be revived because of the 
 death of one of several plaintiffs ;* and even the death of a sole 
 plaintiff after execution issued did not abate it.' If the sole 
 defendant dies before the lien attaches the execution is gen- 
 erally held to be too late, but the writ is not abated by his death 
 after the lien attaches ;" and the death of one of several defend- 
 ants is generally held not to prevent issuing executions against 
 all afterward, and levying them upon the property of the sur- 
 vivors without first reviving the judgment.' 
 
 'Lundeman v. Hirth, 96 Mich. 17, 35 Am. St. Rep. 588. 
 
 ^Wood V. Colvin, 2 Hill (N. Y.) 566; Kennedy v. Duncklee, 67 Mass. 
 (i Gray) 65; Wills v. Chandler, cases 186; Bullard v. McArdle, 98 Cal. 355, 
 35 Am. St. Rep. 176, 33 Pac. 193. 
 
 Treeman on Executions § 35. 
 
 'Freeman on Executions § 36. 
 
 °Clerk V. Withers, cases 191 ; Freeman on Executions § 37. 
 
 'Parsons v. Gill, cases i8g,; People v. Bradley, cases 189; Freeman on 
 Executions §-36. 
 
 'Martin v. Branch Bank, 15 Ala. 594, 50 Am. Dec. 147; Freeman on 
 Executions § 36. 
 
113 ISSUANCE. § 120 
 
 4. EFFECT OF USE OF ONE PROCESS ON RIGHT 
 ^ TO ANOTHER. 
 
 § 120. A creditor who has sued out any execution or 
 attachment may omit to execute it, and, before it is returned or 
 returnable, take out a capias (ad respondendum vel ad satisfa- 
 ■ciendum) and arrest the defendant thereon. But after the prop- 
 erty has been taken under the other writ he cannot have or use 
 a capias till the other is completely executed and returned.* 
 There are many decisions and text-books in which this doctrine 
 is stated in round terms as applying to all forms of writs. It 
 was once said that a mere levy is a satisfaction. That doctrine 
 was completely exploded by Judge Cowen in Green v. Burke ;^ 
 yet you often see the statement that a levy is, prima facie, a sat- 
 isfaction, which is ec[ually false. ^^ All that is meant by these 
 ■expressions is that the creditor will not be permitted to harass 
 the debtor after having levied on enough property to make his 
 debt secure. Decisions are abundant in which defenses to 
 attachments on the ground that they were issued and levied 
 while other property was held under other attachments for the 
 same debt, have been denied.' Again, there are plenty of 
 decisions denying similar objections to levies under executions 
 while property was held under other executions on the same 
 judgment.' And it is admitted by all courts, that the issuing 
 ■ and use of several similar executions on the same judgment, 
 at the same time, may and should be allowed by the court 
 wherever the ends of justice require it. Though these were 
 issued .without special order by the court, the sales under them 
 would probably not be held void, but only voidable. Yet there 
 are some decisions holding sales absolutely void, when made 
 
 ''Miller v. Parnell, cases ips ; Primrose v. Gibson, idses 196. 
 
 'Cases 205. 
 
 "Spring V. Ayer, cases 197; Sutton v. Hasey, cases 198; Adams v. 
 Smallwood, cases 199 ; Brice v. Carr, cases 201 ; Yazoo & M. Ry. Co. v. 
 Fulton, cases 202. 
 
 '5 Century Digest, Attachment § 52 ; Rood Garnishment §§ 185, 186. 
 
 ''See Cases pp. 196-201. 
 h 
 
§ 121 ATTACHMENTS^ GARNISHMENTS, AND EXECUTIONS. 114 
 
 after property had been seized under a previous writ, and re- 
 leased by plaintiff's orders without the consent of the defend- 
 ant." * 
 
 5. WHO MAY DEMAND AND CONTROL THE 
 PROCESSES. 
 
 Every Person Owning a Claim. 
 
 § 121. It is only justice that all men should stand equal 
 before the law. Every judgment creditor may have his judg- 
 ment enforced by execution if the nature of the judgment war- 
 rants it.'' Anyone may employ attachment and garnishment 
 to secure the payment of his claim unless excluded by the plain 
 terms of the statute or by his own acts. The United States, 
 any state, a corporation, or an assignee of the demand, may 
 employ attachment or garnishment, though he and the defend- 
 ant are both non-residents, and the non-residence of the defend- 
 ant is the ground for the attachment.' 
 
 Only Persons Interested in the Claim. 
 
 § 122. The owner of the demand, and he only, has a right 
 to have it enforced, and to control the means of enforcement.* 
 If he is absolute owner he has the sole right to control. If 
 there are several part owners the rights of all will be protected, 
 respect being given to the wish of the majority. If one has a 
 paramount lien without owning the leg^l title, that will be pro- 
 tected.' Thus, when an execution on A's judgment against 
 B was levied by the sheriff on B's judgment against C, which 
 the statute allowed, and thereafter with notice of the levy, C 
 paid B, and B entered satisfaction on his judgment record — 
 
 'For full discusssion see Green v. Burke, cases 205, and notes. 
 'Freeman on Executions § 21. 
 
 'Attachment §§43-43, Century Digest; Rood on Garnishment §12. 
 'Daugherty v. Moon, cases 222; Stanley v. Nutter, cases 186. 
 'Andrews y. Morse, cases 224. 
 
115 ISSUANCE. § 123 
 
 this did not defeat A's lien, but the court set aside the satis- 
 faction, and ordered execution to be issued on B's judgment, 
 so that the sheriff could collect it to satisfy A's judgment.* 
 Officers of court have no lien on the judgment for the amount 
 of their unpaid fees ; and, therefore, the sheriff cannot proceed 
 on the writ in his hands to collect his fees after the parties have 
 settled," nor refuse to accept the plaintiff's bid at the sale be- 
 cause the plaintiff would not pay his fees. Those having this 
 right to control will be protected by the court against its offi- 
 cers, the plaintifif of record, and all persons presuming to inter- 
 fere. 
 
 Writs Issued on Others' Orders are Valid. 
 
 § 123. Yet an execution issued in the name of the judg- 
 ment creditor without his consent is not void. It will protect 
 an officer acting without notice of the want of authority to 
 issue it, and will pass title to the purchaser.' 
 
 Remedies of Persons Injured. 
 
 § 124. Nevertheless, the plaintifif may have the execution 
 set aside even after sale to an innocent purchaser unless the full 
 price bid has been paid.^ If the clerk refuses to issue process 
 on the owner's demand, or the sheriff refuses to obey his orders 
 in executing it, he may sue for damages on the offending offi- 
 cer's official bond, move the court to amerce him till he obeys, 
 and in many cases have mandamus to him from the higher 
 courts." 
 
 Form of Demand and Proof of Authority. 
 
 § 125. The person thus entitled to control the processes 
 may do so in person in opposition to his attorney of record, or 
 
 'Henry v. Traynor, 42 Minn. 234, 44 N. W. 11. 
 •Wills V. Chandler, cases 186; Morgan v. People, cases 221. 
 ^Sowles V. Harvey, cases 227; Clarkson v. White, cases 226. 
 'Lewis V. Phillips, 17 Ind. 108, 79 Am. Dec. 457. 
 'State V. Herod, cases 221 ; Steele v. Thomson, cases 218 ; High on Ex- 
 traordinary Legal Remedies § 82. 
 
§ 126 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 116 
 
 he may act through an agent whether such agent is an attorney 
 or not. No particular form of demand is necessary; and 
 failure to give proof of authority to command is no excuse to 
 the officer for not acting unless he demanded such proof; but 
 officers have a right to demand reasonable proof of authority 
 before obeying one assuming to control.* 
 
 6. AGAINST WHOM THE PROCESSES MAY BE 
 
 ISSUED. 
 
 Parties Only. 
 
 § 126. Execution can be issued only against the parties 
 cast in the judgment; and attachment and garnishment can be 
 directed only against the effects of the persons sued. The exe- 
 cution must conform to the judgment to be enforced. The 
 insertion into it of the names of persons as defendants who 
 are not such, would protect an innocent officer in seizing their 
 property, but would not pass title to the purchaser, though 
 the persons so named as defendants were equally liable with 
 the real defendants for the payment of the debt represented by 
 the judgment." For the same reason the garnishee cannot be 
 charged for his liability to a stranger who is co-debtor with 
 the defendant on the debt sued for," nor for what the garnishee 
 owes to the plaintiff.'' 
 
 All Defendants. 
 
 § 127. Every party cast in judgment is liable to execu- 
 tion. It matters not who he may be. If judgment may be 
 recovered it may be enforced. Likewise, the effects of every 
 person sued may be taken by attachment and garnishment. 
 
 *Daugherty v. Moon, cases 222; Steele v. Thompson, cases 218. 
 "Hamner v. Ballantyne, cases 312; Keniston v. Little, cases 231. 
 'AUinson v. Chicago, B. & Q. Ry. Co., 76 Iowa 209, 40 N. W. 813; 
 Cleveland v. Spencer (Tex. Civ. App.), 50 S. W. 405. 
 'Rood on Garnishment § 47. 
 
117 ISSUANCE. § 128 
 
 This applies to persons under legal disability, infants, lunatics, 
 spendthrifts, and married women.* 
 
 Any Person May be Garnishee. 
 
 § 128. The statutes usually provide that the plaintiff may 
 have "any person" summoned as garnishee. These terms are 
 generally held to include natural persons, corporations, non- 
 residents, infants, lunatics, married women, and the plaintiff 
 himself." Several courts have denied the plaintiff's right to 
 charge a defendant as garnishee, on the ground that he gains 
 no advantage thereby; but there is an advantage where the 
 same person is sued in one capacity and summoned as garnishee 
 in another, and such garnishments have been sustained in 
 several cases. ^ The statutes forbidding husband and wife to 
 testify against each other embarrass attempts to charge one 
 as the garnishee, of the other.' 
 
 Limitations Upon the Right to Process. 
 
 ^ 129. To the rules stated in the two preceding sections, 
 a limitation arises from the fact that the administration of pub- 
 lic business cannot be diverted from its proper channels nor 
 interrupted to advance the interests of any individual, and one 
 department of the state cannot command and require obedience 
 of another except as authority to do so is given it by law. For 
 this reason courts cannot audit and compel payment of claims 
 against the state, nor enforce their judgments when the legis^ 
 lature requests them to audit such claims, nor require the other 
 departments of the state to answer before them' as garnishees. 
 For the same reason, one court cannot interrupt the business 
 of any other court by requiring its officers to answer as gar- 
 
 'Dillon V. Burnham, cases 228, and see notes. 
 
 "Wilder v. Eldridge, cases 229; Graighle v. Notnagle, cases 234. 
 
 'Brown v. Wiley, 107 Ga. 85, 32 S. E. 905. 
 
 'Berks v. Adsit, 102 Mich. 495, 60 N. W. 967. But see Porter v. Wake- 
 field, 146 Mass. 25, 14 N. E. 792; Thompson v. Silvers, KQ Iowa 670, i-? 
 N. W. 854. 
 
§ 130 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 118 
 
 nishee for property held by them as such officers, nor bv seiz- 
 ing the property in their possession. The same reason forbids 
 the seizure of any property used by any governmental agency 
 — city, county, town, or pubHc board — in the performance of 
 its public trust ; and is generally held to prevent requiring such 
 agencies to respond as garnishees for property in their posses- 
 sion belonging to the defendant or debts they may owe him. 
 Public service corporations — transportation companies, water 
 companies, etc. — are generally held to come within the reason 
 of this limitation in so far that the property used by them in 
 the performance of their public-trust cannot be seized on exe- 
 cution against them, and where the performance of their public 
 duties would be interrupted thereby they cannot be required 
 to answer as garnishees in suits against other persons.'' 
 
 7. WHAT COURTS AND OFFICERS MAY ISSUE 
 THE PROCESSES. 
 
 Every Court May Enforce its Judgments. 
 
 § 130. It would be idle to adjudicate if without power 
 to enforce; therefore, authority to pronounce necessarily im- 
 plies authority to execute.* For example, a sale of land on 
 an execution issued by a county court not expressly authorized 
 to issue executions was sustained in the following language: 
 "The act establishes a court of record, and in general terms 
 confers upon it the powers and duties of a court of record. 
 The pow er to issue executions is incident to such courts unless 
 denied, and ns such denial is found in the act."° But a statute 
 giving one court authority to issue a special process unknown 
 to the common laAV does not impliedly authorize other courts 
 to issue such processes." 
 
 ^For full discussion of these limitations see Cases pp. 238-266. 
 'Kentzler v. Chicago, M. & St. P. Ry. Co., cases 353 ; Griffith v. Etna 
 Fire Ins. Co., 7 Md. 102 ; Freeman on Executions § 10. 
 "Bailey v. Winn, loi Mo. 649, 659, 12 S. W. 1045. 
 •Rood on Garnishment § 223. 
 
119 ISSUANCE. § 131 
 
 No Court Can Issue Process on Judgments of Other Courts. 
 
 § 131. Only the court in which the action is pending or 
 which rendered the judgment can issue process to enforce it, 
 unless the original record has been removed to some other 
 court, or there is some statutory provision authorizing some 
 other court to issue process to enforce it. Except in these 
 cases, executions, attachments, and garnishments, issued from 
 any other court, would be void, and the sale thereunder would 
 pass no title.'' Statutes providing that the filing of a transcript 
 of a judgment of one court in the court of another county, or in 
 another court in the same county, shall have the effect of creat- 
 ing a lien upon the defendant's property, or shall have some 
 other effect, do not impliedly authorize the courts in which such 
 transcripts are filed to issue executions thereon, and execu- 
 tions so issued are void.'* For the same reason, garnishments 
 so issued would be void." 
 
 When Process from Other Courts is Authorized. 
 
 § 132. In cases of appeal, if the appeal has the effect of 
 destroying the judgment appealed from, as is usually the case 
 where appeal is taken from the judgment of a justice of the 
 peace, no process can afterwards be issued on that judgment 
 by any court, bitt the court above issues execution- on its own 
 judgment when rendered. In other cases the judgment is not 
 generally nullified by the appeal, and the court below issues 
 the execution to enforce its judgment when it is affirmed unless 
 some statute gives the court above authority to do so, or unless 
 the original record was sent up.^ Where Statutes provide that 
 execution may issue from a court in which a transcript of the 
 judgment of another has been filed, it is generally held that 
 
 'Clarke v. Miller, cases 267; Freeman on Executions §§ 10-15; Rood on 
 Garnishment § 236. 
 
 'Bostwick V. Benedict, cases 271. 
 
 'Weimeister v. Singer, 44 Mich. 406, 6 N. W. 859. 
 
 "Tidd Pr. *994-*995; Rockwell v. District Ct., 17 Colo. 118, 31 Am. St 
 Rep. 265, 29 Pac. 454. 
 
§ 133 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 120 
 
 the judgment does not become a judgment of the court where 
 the transcript is filed except for the purposes specified in the 
 statute. When the transcript is taken from a justice court, it is 
 generally held that the justice who rendered the judgment 
 thereby loses authority to enforce it, revive it, or do anything 
 further concerning it;"" and it seems to me that the same rule 
 might well be applied where the transcript is taken from one 
 superior court to another for the same purpose; but there 'are 
 several decisions holding in such cases that after the transcript 
 has been sent the court that rendered the judgment may set 
 it aside, receive payment of it, issue another transcript to 
 another county, or revive it on scire facias." 
 
 Only by the Proper Officer. 
 
 § 133. No process is valid unless issued by the officer 
 authorized by law or by his direction ; and in several cases proc- 
 ess issued by the proper officer has been held absolutely void 
 because he thoughtlessly added 'to his signature some title in 
 place of the name of his office, as when the clerk of the court 
 was also justice of the peace and added that title instead of 
 clerk.* These decisions seem to me clearly wrong, on the 
 ground that it is no worse than if he had not signed at all, a 
 matter we will presently consider.^ Officers are not usually 
 allowed to act in their own cases; but it has been held that an 
 attachment issued by a clerk in his own case, upon his present- 
 ing to himself his own affidavit for the same, was valid, because 
 no one else could is^ue the writ, and the issuance of it was not 
 
 ''Rahm v. Soper, cases 269. 
 
 ^Nelson v. Guffey, 131 Pa. St. 273, 18 Atl. 1073; Brandt's Appeal, 16 
 Pa. St. ?i^; King v. Nimick, 34 Pa. St. 297; Mellon v. Guthrie, 51 Pa. St. 
 116. 
 
 *Perry v. Whipple, 38 Vt. 278; Anderson v. Johett, 14 La. An. 614. 
 Again, on action to quiet title, a sale on execution was held void because 
 the printed blank used by the deputy clerk and signed by him bore the sig- 
 nature of a former clerk, and he failed to change it by inserting the name 
 of the present clerk. O'Donnell v. Merguire, 131 Cal. 527, 63 Pac. 847. 
 
 "See post §§ 142-144. 
 
121 ISSUANCE. § 134 
 
 judicial but purely ministerial and without discretion." The 
 writ is generally held good though issued by a deputy not 
 authorized by law or not duly appointed.^ 
 
 8. FORM AND ESSENTIALS OF THE PAPERS. 
 
 Attachment and Garnishment Affidavits. 
 
 § 134. Effect of Affidavit Wanting or Defective. 
 Most of the statutes require an affidavit to certain matters ta 
 be filed before the attachment or garnishment shall be issued, 
 and generally provide for the supplying of defects by amend- 
 ment. If no affidavit is made, or only one so seriously defect- 
 ive that it cannot be amended, the attachment or garnishment 
 must of course, fall when directly attacked for that reason by 
 the defendant or garnishee ; and fully half of the courts have 
 held that the want of a sufficient affidavit may be set up by 
 the defendant or any other person to avoid the proceeding col- 
 laterally.* In the first part of this text considerable attention 
 is given to collateral attacks for irregularities such as these;" 
 and in the note below will be found a few of the cases holding 
 attachment and garnishment proceedings not open to collateral 
 attack for want of the statutory affidavit.' 
 
 § 135. What is a Sufficient Affidavit. By and 
 Before Whom Sivorn to. If the statute does not provide by 
 
 "Evans v. Etheridge, 96 N. C. 42, i S. E. 633; Womack v. Stokes, 9- 
 Tex. Civ. App. 592, 29 S. W. 1113; Laning v. Iron City Nat. Bank (Tex. 
 App.) 36 S. W. 481; Vermont Ins. Co. v. Cummings, 11 Vt. 503; Blount > 
 V. Wells, 55 Ga. 282. Contra : Doolittle v. Clark, 47 Conn. 316. 
 
 'McMahan v. Colclough, 2 Ala. 68; Kyle v. Evans, 3 Ala. 481, 37' Am. 
 Dec. 705; Brush v. Lee, 36 N. Y. 49; Gamble v. Trahen, 4 Miss. (3 How.) 
 32. 
 
 'Attachment §§ 344-3.'io, Vol. 5, Century Digest; Drake on Attachment 
 §§ 86-89. 
 
 'See ante §§ 34-45. 
 
 'Cooper V. Reynolds, cases 15 ; Martin v. Hall, 70 Ala. \ii ; Boothe v. 
 Estes, 16 Ark. 104 ; Shea v. Johnson, loi Cal. 455, 35 Pac. 1023 ; Paul v. 
 Smith, 82 Ky. 451 ; Scott v. Kirschbaum, 47 Neb. 331, 66 N. W. 443; West- 
 cott v. Sharp, 50 N. J. L. (21 Vroom) 392, 13 Atl. 243 ; Skinner v. Moore, 
 2 Dev. & Bat. (N. Car.) 138; Ward v. Howard, 12 Ohio St. 160; Billings 
 v. Russell, 23 Pa. St. 189, 62 Am. Dec. 330; Goodbar v. City Nat. Bank, 78 
 Tex. 461, 14 S. W. 851 ; Hall v. Hall, 12 W. Va. i. 
 
§ 136 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 122 
 
 whom it shall be made, the affidavit can be made by any one 
 acting for the creditor and possessing personal knowledge of 
 the facts; but if the statute requires it to be made by one, the 
 affidavit of another will not do/ So, too, the oath may be 
 administered by any officer competent to administer oaths gen- 
 erally unless the statute otherwise provides. 
 
 § 136. When Sworn To. It should be sworn to before 
 the writ issues, and not so long before as to raise a presumption 
 that the facts have since changed.^ One sworn to the day 
 before was held bad in Michigan.* 
 
 § 137. Substance. The averments should be so positive 
 that perjury could be assigned on them, and disjunctive forms 
 of statement avoided ; but, with these limitations, it is always 
 safest to follow the words of the statute rather than to choose 
 phrases which seem equivalent to them; for the court may 
 entertain a different opinion on that matter, and the statute 
 is the sole requirement. The affidavit is not sufficient unless 
 it shows every fact which the statute requires it to show ; but, 
 on the other hand, it is not defective because any other matter 
 is not shown by it. For example, when the statute does not 
 require these things it need not show that it is made in behalf 
 of the plaintiff, that suit has been commenced, how much is 
 due, that anything is due, that the garnishee is a corporation, 
 ttc." 
 
 § 138. Accuracy and Certainty. An allegation of one 
 ground will riot sustain an attachment or garnishment . on 
 another; an allegation of one debt will not sustain an attach- 
 ment on another; one cannot be charged as garnishee on an 
 affidavit alleging indebtedness by another, by him and others, 
 
 'Pool V. Webster, 3 Mete. (Ky.) 278; Mantz v. Hendley, 2 Hen. & M. 
 (Va.) 308. .Compare: Flake v. Day, 22 Ala. 132; Drake on Attachment) 
 ?§ 93-94 ; Rood on Garnishment § 250. 
 
 'Attachment, 3 Ency. PI. & Pr. 5 ; Drake on Attachment § 90a ; Rood on 
 Garnishment § 253. 
 
 'Wilson V. Arnold, 5 Mich. 98. One day intervening is now allowed by 
 statute. Horton v. Monroe. 98 Mich. 195. 
 
 "Drake on Attachment §§ 93b, 94a ; Rood on Garnishment § 252 ; Burn- 
 ham V. Doolittle, cases 273; Freer v. Hamilton (Mich.), 86 N. W. 824. 
 
123 ISSUANCE. § 139 
 
 or by him alone in another capacity. The affidavit must be 
 sufficiently specific and accurate on these matters to identify 
 the persons, obligations, etc. : but the same affidavit, contain- 
 ing all essential averments, will sustain an attachment and gar- 
 nishment, or several garnishments." 
 
 § 139. Form. The affidavit should be entitled in the 
 court, and if made in a pending cause entitled in the cause, 
 signed by the affiant, signed by the officer administering the 
 oath, and dated. But errors in any of these respects are not 
 generally held to be fatal if the essential facts appear from the 
 paper as a whole or are otherwise shown.' 
 
 JUSTICE COURT GARNISHMENT AFFIDAVIT IN MICHIGAN. 
 
 State of Michigan, County of Washtenaw, ss. 
 
 John Smith, agent for William Smith, being duly sworn, says that John 
 Brown and William Brown are justly indebted to said John Smith upon 
 express and implied contract in the sum of ninety-four dollars, or there- 
 abouts, and that for the recovery of said demand said John Smith has com- 
 menced suit before John Barnes, one of the justices of the peace in and for 
 said county. 
 
 And this deponent further says, that he has good reason to believe and 
 does believe, that the Michigan Central Railroad Company, a corporation 
 under the laws of Michigan, is indebted to said John Brown and William 
 Brown, and to each of them, and has property, money, and effects in its 
 possession belonging to said John Brown and William Brown, and to each 
 of them. John Smith. 
 
 Subscribed and sworn to before me 
 
 this nth day of October, A. D. 1901. 
 John Barnes, Justice of the Peace. 
 
 AFFIDAVIT FOR ATTACHMENT IN ILLINOIS CIRCUIT COURT. 
 
 State of Illinois, County of Cook, ss. 
 
 John Smith, being duly sworn, says that John Brown and William 
 Brown are justly indebted to William Smith in a sum exceeding twenty 
 dollars, to wit, the sum of two hundred and twenty-five dollars, after allow- . 
 ing all just credits and set-offs; and that the said indebtedness is due for 
 ^oods sold and delivered. And this deponent further says, that said John 
 Brown and William Brown are not residents of this state, and that upon 
 •diligent inquiry affiant has not been able to ascertain the place of residence 
 of them or either of them. John Smith. 
 
 Subscribed and sworn to before me 
 
 this 14th day of October, A. D. 1901. 
 Julius Reitz, Notary Public. 
 
 'Drake on Attachment §§ 36, 104 ; Rood on Garnishment §§ 247-249. 
 
 'Burnham v. Doolitde, cases 273 ; Stout v. Folger, cases 275 ; Attach- 
 ment, 3 Ency. PI. & Pr. 12-14; Attachment §§231-237, Century Digest, 
 Vol. 5 ; Drake on Attachment § 92. 
 
§ 140 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 124r 
 
 Attachment Bonds. 
 
 § 140. That the creditor shall file a bond before the writ 
 issues is another requirement contained in most attachment 
 statutes. This recjuirement is not usual in garnishment stat- 
 utes, probably because garnishments do not interfere with the 
 possession nor interrupt the use of the property as attachments 
 do. The decisions upon the effect in collateral attack of the 
 failure to give a bond when required, or such a one as is 
 required, are as much in conflict as the decisions upon the 
 kindred questions of affidavits wanting or defective, and the 
 reasons in both cases are the same." But the courts are agreed 
 that failure to file a bond at the time, in the amount and terms, 
 and executed by the persons reqiaired by the statute, is fatal on 
 a direct attack by the debtor unless the statute has provided a 
 means of curing the defect. Even a deposit in court of the 
 amount in money would not do.'" 
 
 Form and Essentials of Processes. 
 
 § 141. Parts of Process. The parts of judicial proc- 
 esses — original, mesne, and final — are: i, the venue (State of 
 Michigan, Washtenaw county, ss.), which shows where the 
 subject-matter and proceeding is located ; 2, the title as to the 
 court (In the circuit court for Washtenaw county), which 
 shows what court is conducting the proceedings ; 3, the title as^ 
 to the cause, if issued in a cause already commenced (Ella 
 Glazier v. City of Ypsilanti), which shows in what cause the 
 process is issued; 4, the style (In the name of the People of 
 the State of Michigan), which shows what authority gives the 
 commands contained in the process; 5, the address (To the- 
 sheriff of Washtenaw county. Greeting), which shows tO' 
 
 'In the following cases attachments were held not void collaterally for 
 want of the required bond. Thomas v. Mahone, 72 Ky. (9 Bush) iii; 
 O'Farrell v. Stockman, 19 Ohio St. 296; Camberford v. Hall, 3 McCord 
 (S. C.) 345; Billings v. Russell, 23 Pa. St. 189, 62 Am. Dec. "330. See- 
 also : Attachment §§ 3SI-3SS, Century Digest, Vol. 5. 
 
 "Drake on Attachment § 115. 
 
125 ISSUANCE. § 142 
 
 whom the commands contained in the process are given ; 6, the 
 body, which should contain an exphcit statement of what is 
 commanded to be done, when it is to be done, and how ; 7, the 
 teste (Witness the Hon. E. D. Kinne, circuit judge, at the city 
 of Ann Arbor, Washtenaw county, this 23d day of December, 
 A. D. 1901), which once indicated the final approval of the 
 process by the sovereign or his proper officer together with 
 the time and place when and where that approval was given ; 
 8, the clerk's signature at the end (Jacob F. Schuh, clerk of said 
 court, by John Clark, deputy) ; 9, the seal of the court if it has 
 a seal, impressed upon the process at the left of the clerk's sig- 
 nature, to prove that the process is genuine; and, 10, indorse- 
 ments such as are reqttired by the statutes and court rules (e. g., 
 A. J. Sawyer & Son, Ann Arbor, Mich., attorneys for plaint- 
 iff).^ 
 
 § 142. What Formal Parts are Essential. The 
 venue and titles are usually omitted from many kinds of proc- 
 ess, and probably the practice is not uniform as to giving or 
 omitting them on any particular kind. Such matters can usu- 
 ally be settled in any state without much difficulty in any case 
 by consulting the forms used there. But a question of more 
 serious character, and much harder to answer, is this : What 
 is the effect of an omission of any part required by inveterate 
 practice, the court rules, the statutes, or the constitution ? The 
 difficulty in answering this question consists in the fact that no 
 distinction, as to the importance of the various required parts, 
 or between the various kinds of processes, is agreed to ; except 
 that processes issued before judgment have to be passed upon 
 by the court, and their validity or invalidity is made res judi- 
 cata by the judgment if the court had acquired jurisdiction. 
 Almost any sort of proposition concerning almost any part of 
 
 'Discussions and numerous decisions on these parts will be found in the 
 following : Freeman on Executions §§ 38-46 ; Summons and Process, 20 
 Ency. PI. & Pr, 1114-1177; Execution §§174-190, Century Digest, Vol. 21; 
 Attachment §§ 403-410, Centurjy Digest. Vol. 5 ; Rood on Garnishment § 258. 
 
§ 143 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 126 
 
 any process can be sustained by respectable authority, and 
 refuted by authority equally respectable. 
 
 § 143. Same. Some may lightly answer that that is a- 
 small matter, depending upon the local practice. But is it a 
 matter of practice merely? In direct attacks it may be con- 
 ceded that substantial departures from prescribed form would 
 be enough to avoid the proceedings. But how about collateral 
 attacks ? For example, when we come to look at the decisions, 
 we find execution sales held void on collateral attack, because 
 the writ was not sealed, as required; and the next minute we 
 find a decision holding that the omission is not even ground 
 for quashing the writ on direct attack." Similar illustrations 
 might be given of almost any other part. One judge says, if 
 you omit this part, you may omit that: if you may omit two 
 parts, you may omit ten. And what is there left ? Where will 
 you draw the line if not on the one side or on the other? He 
 puzzles us, and we cannot answer him. Another judge com- 
 pares the process to a man,, and asks if cutting off a foot would 
 deprive a descendant of Adam of his title to manhood. How 
 much may be cut away and the man still live ? Delighted with 
 this judge's wit and his evident love of justice, we willingly 
 follow him anywhefe, perhaps too far. 
 
 § 144. Same. In a recent treatise on this subject, the 
 writer takes up separately the various parts of the process, 
 except the body; and, after citing and commenting on several 
 decisions on both sides as to that particular part, concludes in 
 each case that the process should not be held void, but voidable 
 at most, for want of that part. However, this writer does not 
 bother himself to answer the question above suggested, as to 
 whether a writ would be valid which contained none of these 
 parts but the body." Probably the majority of the decisions 
 upon each of these points agree with the conclusions reached 
 
 'Sidwell V. Schumacher, cases 278; Lowe v. Morris, cases 281. 
 'See Alderson on Judicial Writs §§ 14-42. 
 
Iii7 ISSUANCE. § 145 
 
 by this writer. They more nearly accomplish the ends of jus- 
 tice, and seem to be correct, on the principle that the law favors 
 substance rather than form, and will not deny substantial rights 
 because of the misprison of a public officer. 
 
 § 145. The Body of the Process. As a Summons. 
 Attachment and garnishment writs serve two objects, or con- 
 sist of two parts, the command to summon and the command 
 to attach; but executions need usually contain no summons. 
 The summons should accurately specify who is to be sum- 
 moned, and when and where he is to appear; but mistakes in 
 the name, or omissions of it, may be cured by amendment 
 whenever the mistake is discovered or objection made, and will 
 not justify the party served in disregarding it.^ Statements 
 of a past time or an improper time or place, and failure to state 
 any time or place at all, are cured by appearance at the proper 
 time and place without making objection ; but will often cause 
 the writ to be abated on proper objection at the first opportu- 
 nity. The risk of its being held valid is too great ever to jus- 
 tify disregarding it. The writ may be bad as a summons and 
 yet good as an attachment. 
 
 § 146. As an Attachment — Naming the Parties. The 
 rules as to the essentials of the body of the execution are the 
 same as those governing the attachment and garnishment writs 
 in so far as these are merely attachments. In all of these 
 cases the writ should clearly state in what action or on what 
 judgment it is issued, whose property is to be taken, what kind 
 of property, how much, and when return of the writ is due. 
 Mistakes in the names, omission of some, or additions of 
 others, will not, according to most decisions, make the writ 
 void ; but the facts may be shown by extrinsic evidence." Such 
 mistakes will not even justify the officer in failing to execute it, 
 
 'Attachment, 3 Ency. PI. & Pr. 41; Attachment §§413-414, Century Di- 
 gest, Vol. S ; Rood on Garnishment § 266. 
 
 "DeLoach v. Robbins, cases 293 ; Freeman on Execution § 43 ; Rood on 
 Garnishment § 266. 
 
§ 147 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 128 
 
 or excuse the garnishee for paying over the property in his 
 hands, provided the officer in the one case, and tlie garnishee 
 in the other, really knew who was meant, whether he learned 
 that from the writ or otherwise." For the sake of conforming 
 to the judgment, the execution should issue in favor of all the 
 plaintiffs and against all the defendants, althoueh only one 
 plaintiff is interested, and part of the defendants are dead, dis- 
 charged in bankruptcy, or not liable for any other reason. 
 
 § 147. Same. What — Hozv Much — When Return. Di- 
 rection to take realty first when the statute requires personalty 
 to be first taken, is not generally held to make the writ void, but 
 only erroneous. A failure to state how much is to be taken has 
 been held to be a failure to conmiand anything to be taken, 
 justifying the officer in doing nothing, and giving him no 
 authority to do anything. The writ is not void because it 
 requires too much or too little to be taken, and the officer is 
 not justified in disobeying it.' A decisive majority of the 
 courts hold that failure to state when the writ shall be return- 
 able, or making it returnable at an improper time, do not make 
 it void, nor excuse the officer in failing to execute it." 
 
 EXECUTION FROM UNITED STATES CIRCUIT COURT FOR DISTRICT OF CALIFORNIA. 
 
 United States of America. 
 
 The President of the United States of America, to the Marshal of the 
 District of California, Greeting: You are hereby commanded that of the 
 goods and chattels of John Brown in your district, you cause to be made the 
 sum of five thousand four hundred and twenty dollars to satisfy a judg- 
 ment lately rendered in the Circuit Court of the United States for the Dis- 
 trict of California, against John Brown for the damages which John Smith 
 has sustained, as well by reason of his damages as for the costs and 
 charges in and about that suit expended, whereof the said John Brown stands 
 convicted as appears of record. And if sufficient goods and chattels of the 
 said John Brown cannot be found in your district, that then you cause the 
 amount of said judgment to be made of the real estate, land, and tenements 
 -whereof the said John Brown was seized when said judgment was rendered. 
 May 7th, igoi, or at any time afterwards, in whose hands soever the same 
 may be. And have you that money, together with this writ, with your 
 ■doings thereon, before the judges of the said Circuit Court, at the court- 
 
 "Freeman on Execution § 43 ; Rood on Garnishment § 267. 
 
 'DeLoach v. Robbins, cases 293 ; Bacon v. Cropsey, cases 181 i Aber- 
 crombie v. Chandler, cases 184 ; Freeman on Execution § 42 ; Attachment 
 ^ Ency. PI. & Pr. 44. 
 
 "Cases pp. 288-293 ; Freeman on Execution § 44. 
 
129 ISSUANCE. § 147 
 
 house thereof, in the city and county of San Francisco and District of Cali- 
 fornia, on the i8th day of December, A. D. 1901, to satisfy the judgment 
 so rendered as aforesaid. 
 
 Witness, the Hon. Melville W. Fuller, Chief Justice of the Supreme 
 Court of the United States of America, this loth day of October, A. D. igoi, 
 and of our independence 125. 
 
 Attest my hand and the seal of said court, the day and year last above 
 ■written. William Moore, Clerk. 
 
 [Seal] by Joseph Frey, Deputy Clerk. 
 
 JUSTICE COURT GARNISHMENT SUMMONS IN MICHIGAN. 
 
 State of Michigan, County of Washtenaw, ss. 
 
 To any constable of said county, greeting: In the name of the People 
 ■of the State of Michigan, you are hereby commanded to summon the Mich- 
 igan Central Railroad Company to appear before me, at my office, in the 
 •city of Ann Arbor, in said county, on the i8th day of October, A. D. 1901, at 
 nine o'clock in the forenoon, to answer, under oath, all questions put to it 
 touching its indebtedness to John Brown and William Brown, or either of 
 them, and the property, money, and effects of the said John Brown and 
 William Brown in its possession or control according to the allegations con- 
 tained in the affidavit of John Smith duly made and filed in this suit. Here- 
 I of fail not, and have you then and there this precept. 
 
 Given under my hand at the city of Ann Arbor, in said county, this 
 nth day of October, A. D. 1901. 
 
 John Barnes, Justice of the Peace. 
 
 ATTACHMENT AND GARNISHMENT SUMMONS IN ILLINOIS CIRCUIT COURT. 
 
 The People of the State of Illinois, to the Sheriff of Cook County, Greeting : 
 Whereas John Smith, as attorney for William Smith, hath complained 
 that John Brown and William Brown are justiy indebted to said William 
 Smith in the amount of $225^00, and that the same is due for goods sold 
 and delivered; and the said William Smith having given bonds and security 
 according to law : We therefore command you that you attach so much of 
 the estate, real and personal, of the said John Brown and William Brown 
 to be found in your county, as shall be of value sufficient to satisfy the said 
 'debt and costs, according to the complaint, and such estate so attached in 
 your hands to secure, or so to provide, that the same may be liable to 
 further proceedings thereupon, according to law; and that you summon 
 John Brown and William Brown to appear and answer the complaint of the 
 said William Smith, at a court to be holden at the court-house in the city 
 of Chicago, in the county of Cook, upon the 14th day of November next; 
 and that you also summon the First National Bank of Chicago, and such 
 other persons as you shall be requested by the said William Smith, as 
 garnishees, to be and appear at the said court on the said 14th day of 
 November next, then and there to answer to what may be objected against 
 them. When and where you shall make known to the said court how you 
 have executed this writ, and have you then and there this writ. 
 
 Witness: John Young, clerk of the said court, October 14th, A. D. 1901. 
 [Seal] John Young, Clerk. 
 
3. EXECUTION OF THE PROCESSES. 
 
 Plan of Treatment, § 148. 
 
 1. Legislature's Power to Change the Remedy, § 149. 
 
 2. Power of the Court and Judge to Control the Processes, 
 
 §150. 
 
 3. Officer's Rights and Liabilities, §§ 151-160. 
 
 His Right to Protection, §§ 151-154. 
 Property Rights of the Officer, § 155. 
 Liability of the Officer, §§ 156-160. 
 
 4. Where the Processes May be Executed, § i6i. 
 
 5. When the Processes Mfey be Executed, §§ 162-163. 
 
 How Early, § 162. 
 How Late, § 163. 
 
 6. Who May Execute the Processes, § 164. 
 
 7-8. What May Be Taken Under the Processes, §§ 165-180. 
 
 Plan of Treatment, § 165. 
 
 Comparative Scope of the Processes, § 166. 
 
 Matters Peculiar to Garnishment, §§ 167-170. 
 
 Matters Applicable to All Processes, §§ 171-180. 
 9. The Levy and Service, §§ 181-188. 
 
 Matters Under this Head Reviewed, § 181. 
 
 The Levy, §§ 182-186. 
 
 Attachment and Garnishment Summonses, § 187. 
 
 Notice of Attachment, Garnishment, and Execu- 
 tion, § 188. 
 ID. Lien Under Judgments, Attachments, Garnishments, and 
 Executions, §§ 189-195. 
 
 When the Right Begins, §§ 189-192 
 
 Nature of the Lien or Right, §§ 193-195. 
 
 11. How Lien Lost After Levy, §§ 196-207. 
 
 By Order of Court in Proceedings to Try, §§ 196- 
 
 201. 
 Matters which Abate the Lien, §§ 202-207. 
 
 12. Foreclosure of the Lien, §§ 208-212. 
 
 Of What it Consists, §§ 208-210. 
 Effect of Defects, §211. 
 The Officer's Return, §§212. 
 
 Plan of Treatment. 
 
 § 148. Having completed our survey of the questions 
 that arise concerning the issuance of the processes to enforce 
 j'udgments, we come noAv to consider the questions that arise 
 concerning the execution of those processes. Among these we 
 may mention : i, the legislature's power to change the remedy ; 
 
131 ■ EXECUTION OF. § 149 
 
 2, the power of the court and judge to control the processes; 3, 
 the officer's rights and liabilities in executing the processes ; 4, 
 where the processes may run and be executed; 5, when the proc- 
 esses may be executed ; 6, who may execute the processes ; 7, 
 for what garnishees may be charged; 8, what may be taken 
 under attachments and executions ; 9, what constitutes a valid 
 levy and service; 10, the nature of the lien acquired by attach- 
 ments, garnishments, judgments, and executions; 11, how that 
 lien may be lost or become subordinate; 12, how it may be fore- 
 closed. This order of arrangement of the questions is some- 
 what arbitrary, as was my arrangement of the questions arising 
 concerning the issuance of the process. It is not possible to 
 fix any exact order of sequence. But this arrangement brings 
 up the questions as nearly in the order in which they would 
 arise in practice as any I can discover ; and, for want of a bet- 
 ter plan, we will now take up each of these matters separately 
 • in the order named. 
 
 I. THE LEGISLATURE'S POWER TO CHANGE THE 
 
 REMEDY. 
 
 § 149. This and the following topic have to do with both 
 the issuing and the execution of the processes, and can be as 
 well considered here as anywhere. The matter of procedure 
 is entirely in the control of the legislature. It may make laws 
 apply to pending proceedings, though the result be fatal to 
 them. No vested right is acquired by reason of having com- 
 menced suit. No right to proceed in the particular form is 
 acquired by reason of that form existing when the contract 
 was made.^ The legislature may take away the remedy en- 
 tirely or modify it at will as to all future transactions; and 
 remedies for torts may be modified and destroyed after the tort 
 is committed and even after the claim has been reduced to judg- 
 
 'Heineman v. Schloss, cases 305. 
 
§ 150 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS 132 
 
 ment.^ The state legislature cannot impair any remedy exist- 
 ing at the time the contract is made, so as to prevent its use 
 for the enforcement of the judgment recovered on such con- 
 tract, unless an equivalent is given. This is because the United 
 States constitution forbids the states to pass any law impairing 
 the obligation of contracts.^ 
 
 2. THE POWER OF THE COURT AND JUDGE TO 
 CONTROL THE PROCESSES. 
 
 § 150. Every court has power, and is in duty bound, to 
 recall its processes, set aside them and the proceedings of its 
 officers under them, stay the proceedings, and otherwise control 
 them, whenever such action is necessary to prevent abuse, 
 oppression, or injustice. This power is entirely independent 
 of statute ; it exists from the necessity of the case. Notice to 
 the party should be given, but is not jurisdictional. The deter- 
 mination may be made summarily without the intervention of 
 the jury. Probably the powers of the judge during vacation 
 are more restricted; but he certainly could stay all further 
 action till the matter could be determined in open court, and 
 for this purpose, may act of his own motion without giving any 
 notice to the parties.* 
 
 3. OFFICER'S RIGHTS AND LIABILITIES." 
 
 His Right to Protection. 
 
 § 151. His Thkee Safeguards. An officer has three 
 means of protecting himself from liability for acts done in 
 
 Treeland v. Williams, 131 U. S. 405. 
 
 "Edwards v. Kearzey, cases 299. 
 
 ■■Commonwealth v. Magee, cases 307; Loomis v. Lane, 29 Pa. St. 242, 
 72 Am. Dec. 625 ; Sandburg v. Papineau, 81 111. 446 ; Orient Ins. Co. v. 
 Sloan, 70 Wis. 611, 36 N. W. 388; Hopton v. Swan, 50 Miss. 545. 
 
 "For extensive citations on the matters under this head see : Mechem on 
 Public Officers; Addison on Torts, Ch. 10, Sec. 2; Alderson on Judicial 
 Writs, Ch. 30. 
 
.133 EXECUTION OF. § 152 
 
 obeying the commands contained in the process he is called 
 upon to execute: i, the shield of the process; 2, recourse to 
 the party whose process he serves; 3, the fact that his posses- 
 sion is the court's possession. Of these in the order named. 
 
 § 152. The Shield of the Process. The officer is 
 protected by process not absolutely void, whether regular or 
 irregular; and he cannot take advantage of irregularities, 
 though appearing on its face, to excuse his failure to obey it.° 
 Void process, never as a sword but always as a shield, pro- 
 tects the officer in executing it if it is fair on its face, unless 
 he knows that it is void. Whether the court issuing it be of 
 general or limited jurisdiction, he is not bound to look behind 
 his writ.^ Indeed, there is considerable respectable authority 
 and excellent reason for saying that he should not attempt to 
 decide the truth of statements made to him concerning it, but 
 may and should leave those matters to be determined by the 
 court." Yet he is not bound to execute any void process; and, 
 if it is void on its face, he will not be protected in doing so. 
 The court above may not agree with the court below as to its 
 jurisdiction in the premises; but if the material facts appear, or 
 are suggested, on the face of the process, the officer is bound 
 at his peril, not merely to decide correctly all the qiiestions of 
 law presented, but to do what is impossible for other mortals 
 — correctly forecast what will be the decision of the court of 
 last resort upon them. If he refuses to proceed and the court 
 finally holds the process valid he is liable to the plaintiff. If 
 he acts as commanded by the process, and the court finally 
 holds it void, even on the ground that the law under which it 
 issued is unconstitutional, he is liable to the defendant." It 
 
 "People V. Dunning, cases 286; Milburn v. State, cases 289; Cooley on 
 Torts *46o. 
 
 'Keniston v. Little, cases 231; Savacool v. Boughton, S Wend. (N. Y.) 
 170. 
 
 'Webber v. Gay, 24 Wend. (N. Y.) 485; Bird v. Perkins, 33 Mich. 28; 
 Hamner v. Ballantyne, cases 312; Abercrombie v. Chandler, cases 184; 
 Freeman on Executions § 102 ; Cooley on Torts *467 ; Alderson on Writs 
 § 170. 
 
 'Mechem on Public Officers § 772 ; Alderson on Judicial Writs § 168. 
 
§ 153 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 134 
 
 has been said that in this particular the law says to the officer, 
 "You are condemned if you do, and you are damned if you 
 don't." His only safeguard is to demand indemnity in ad- 
 vance. If the process is fair on its face, and commands the 
 officer to take any specific thing, he is protected in doing it, no 
 matter who owns it.^ But he is not justified in taking the 
 property of one person, on a writ commanding him to take 
 the property of another; nor in taking exempt property on a 
 writ commanding him to take what is not exempt.^ These 
 matters he must decide. If the process protects him at ah it 
 shields him from liability for taking the person or property as 
 commanded, and for breaking doors and .going upon the prop- 
 erty of the defendant or others when necessary to execute the 
 command of the writ, except that he cannot break the outer 
 door of the defendant's dwelling.^ 
 
 § 153. Recourse to the P.ar'ty Whose Writ is 
 Served. The officer may protect himself against loss of his 
 fees, by insisting on receiving his pay in advance ; but accept- 
 ing the process without claiming the right waives it.* Against 
 liability for acting under a writ which may turn out to be void," 
 or for taking property which may not be subject to the process, 
 he may protect himself by refusing to act till a bond of indem- 
 nity is given him; and even after a levy without indemnity, 
 if the creditor refuses or neglects on demand to indemnify him 
 against new claimants, he is justified in yielding to them, or 
 to a junior creditor who does indemnify." But failure to exe- 
 cute cannot be defended on the ground that indemnity was not 
 given if none was demanded, nor because the indemnity given 
 was worthless if he accepted it as sufficient.' Without any 
 indemnity being given or promised, the offi.cer has recourse to 
 
 'Buck V. Colbath, 3 Wall. 334; Thompson v. State, 3 Ind. App. 371. 
 ''Lammon v. Feusier, cases 323 ; Watson on Sheriffs *204. 
 'Burton v. Wilkinson, cases 316; Bailey v. Wright, cases 427. 
 'Alexander v. State, 42 Ark. 41 ; Carlisle v. Soule, 44 Vt. 265. 
 'Grace v. Mitchell, 31 Wis. 533 ; Alderson on Judicial Writs § 180. 
 "Smith V. Osgood, ca.ses 318; Mechem on Public Officers §748. 
 'Mechem on Public Officers § 749. ; 
 
135 EXECUTION OF. § 154 
 
 the creditor for reimbursement for all loss suffered by him by 
 reason of taking property which the creditor expressly directed 
 him to take unless the officer was certain that the property was 
 not liable to the process ; in which case even an express promise 
 to indemnify would be void. A general direction to execute 
 the process does not make the creditor liable for the trespasses 
 of the officer in executing it, nor to indemnify the officer against 
 liability therefor.' Contracts to indemnify from liability for 
 disobeying process are usually held to be void. But an action 
 on such a bond was sustained in a recent case, in which attor- 
 neys advised the sheriff that the process was void, and the 
 defendant induced him to accept the bond and wait so that 
 the validity of the process could be tried." 
 
 § 154. The Fact that his Posses'sion is the Court's. 
 Whatever protection the officer receives from this fact is merely 
 incidental to the protection of the court's jurisdiction. Prop- 
 erty seized under process thereby passes into the custody of the 
 court issuing the process, and can be taken from the officer only 
 on another process commanding it and issuing from the same 
 court. Though the owner is a stranger to the process he can- 
 not recover it in any other way. Nevertheless, this fact does not 
 prevent him from recovering the value of the property in an 
 action against the officer in any court otherwise competent 
 to entertain the suit." 
 
 Property Rights of the Officer. 
 
 § 155. Unless some statute otherwise provides, delivery 
 of process to an officer to be executed does not, before levy, 
 vest in him any title to or interest in any property which the 
 process enables or directs him to take. His right and inten- 
 
 'Nelson v. Cook, cases 321 ; Ranlett v. Blodgett, 17 N. H. 298, 43 Am. 
 Dec. 603; Cooley on Torts *468. 
 
 "Ray V. McDevitt (Mich.), 85 N. W. 1086. In this case the two affirm- 
 ative opinions and the dissenting opinion of Hooker, J., review the decisions 
 at considerable length. 
 
 'Lammon v. Feusier, cases 323. 
 
§ 156 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS 136 
 
 tion to levy upon it give him no right of action against anyone 
 who injures, destroys, or carries it away, even if done for the 
 purpose of preventing a levy. The extent of his right is to 
 seize it if he can get to it.^ But a levy gives him such a special 
 interest in the chattels taken as to enable him to retake them in 
 another state;" or he may maintain replevin, case, trover, or 
 trespass, as the facts and his interests may require, in his own 
 name without adding his office,^ against his keeper if he fails 
 to produce them on demand,* against anyone who injures or 
 takes them froin him or his keeper," though he be a constable, 
 and the taker a sheriff acting under a valid process." If the 
 officer making the levy was a deputy he may sue in his own 
 name,' and the sheriff may also sue." Since the garnishee 
 becomes a quasi officer by virtue of the garnishment, he has 
 similar rights against anyone who interferes with his posses- 
 sion or injures the property." A process fair on its face is not 
 sufficient to sustain an action. The plaintiff must show a valid 
 process and levy.^° 
 
 Liability of the Officer. 
 
 § 156. In General. The officer is liable for his own 
 wrongs and for those of his deputies acting within the scope 
 of their, authority or in color of it. He is not liable for failure 
 of himself or his deputy to do that which he could not have 
 done by the exercise of due care and diligence, or which the 
 
 ^Mulheisen v. Lane, 82 111. 117; Hotchkiss v. McVickar, 12 Johns. 
 (N. Y.) 403; Hathaway v. Howell, S4 N. Y. 97. 
 
 ^Utley V. Smith, 7 Vt. 154; Rhoads v. •Woods, 41 Barb. 471. 
 
 'Brewster v. Vale, 20 N. J. L. (Spencer) 56; Williams v. Herndon, 12 
 B. Mon. (Ky.) 484. 
 
 'Phelps V. Gilchrist, 30 N. Ham. (10 Foster) 171; Dezell v. Odell, 3 
 Hill (N.Y.) 215. 
 
 "Freeman on Executions § 268, Drake on Attachment § 297. 
 
 'Robinson v. Ensign, 72 Mass. (6 Gray) 300; Maguire v. Bolen, 94 
 Wis. 48. 
 
 'West V. Thompson, 27 Vt. 613; Robinson v. Ensign, 72 Mass. (6 Gray) 
 300. 
 
 'Smith V. Wadleigh, 18 Me. 95. 
 
 'Erskine v. Staley, cases 458, and notes. 
 
 "Hamner v. Ballantyne, cases 312 ; Drake on Attachment § 185a. 
 
137' EXECUTION OF. § 157 
 
 law did not authoi-ize him to do or left in his discretion to do 
 or not. But for malfeasance and misfeasance he is not excused 
 by the fact that he acted in good faith, was only a de facta 
 officer, or was liable to a statutory penalty for the same act.^ 
 For the wrong of the officer or his deputy, the person injured 
 may sue the officer on his official bond, may sue him alone, or, 
 for the deputy's misfeasance or malfeasance, may sue him 
 alone; but for nonfeasance the deputy is liable only to his 
 superior.^ The officer who commences executing a process- 
 must finish it though his term of office expire in the meantime ; 
 therefore, if an officer is re-elected, and during his second term 
 becomes liable for the act or default of himself or deputy under 
 a process I'eceived and partly executed during his first term, 
 his bond for his first term is liable, and his bond for his second 
 term is not. ^ Only a person showing a direct duty to himself 
 violated and a special injury proximately resulting therefrom 
 can recover, and then only to the amount of the injury suf- 
 fered.* The officer is never liable for an injury resulting from 
 doing what the party complaining or his representative ordered 
 or requested him to do.^ 
 
 The persons to whom liability may thus be incurred are : 
 I, the plaintiffs in the process ; 2. the defendants in the process ^ 
 3, strangers to the process. Of these in the order named. 
 
 § 157. To THE PL.iiiNTiFF IN THE PROCESS. Instances 
 of Liability. 1. If process not absolutely void is presented to 
 the officer to be executed, and he refuses or neglects to execute 
 it during the time allowed by law therefor, the plaintiff may 
 recover against him unless he shows a legal excuse for his 
 default." 2. So,' if he disobevs anv legal instructions of the 
 
 "b"^ 
 
 'Mechem on Public Officers §§666-671, 798. 
 
 "Mechem on Public Officers §§ 678, 798. 
 
 'Colyer v. Higgins, cases 346. 
 
 'State V. Harris, 89 Ind. 363, 46 Am. Rep. 169; Cooley on Torts, 394; 
 Mechem on Public Officers § 674. 
 
 'Fisher v. Magnay, S Man. & Gr. 778 ; State v. Boyd, 63 Ind. 428 ; State 
 V. Yongue, 9 Rich. (S. Car.) 443. 
 
 "Addison on Torts, Ch. 14, Sec. 2 ; Mechem on Public Officers § 758. 
 
■§ 157 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 138 
 
 plaintiff in executing, whereby he fails to take the property, 
 incurs expense, fails to realize as much at the sale as otherwise 
 might have been obtained, etc' 3. So, if he is not reasonably 
 diligent in searching for property* or in levying upon it, by rea- 
 son of which the process cannot be so effectively executed ; for 
 example, if the defendant has died in the meantime, sold the 
 property, encumbered it, or suffered a levy by another." 4. So, 
 if he does not take enough when enough could have been found 
 by the exercise of reasonable diligence.^ 5. So, if he allows 
 the defendant to escape after arrest on a capias unless caused 
 by the act of God or the public enemy."" 6. So, if he suffers a 
 loss of or injury to the property attached which reasonable 
 diligence could have prevented; and in the case of property 
 taken under execution scA'eral courts have held that he would 
 be excused by nothing short of the act of God, public enemy, 
 or inevitable accident." 7. So, if he accepts an insufficient 
 delivery bond from the opposite party, a claimant, or other 
 person, where the statute allows the recovery of the property 
 on giving bond.^ 8. So, if he does not follow the law as to 
 the manner of advertising and selling,* or does not use due 
 diligence to realize the best price.'* 9. So, if he makes a false 
 return. ° 10. So, if he does not make return by the return day, 
 though not specially rule:1 to do so.'" These are the cases in 
 which liability is most frequently incurred ; but he may become 
 liable in other cases. 
 
 'State V. Herod, cases 221 ; Morgan v. People, cases 221 ; Alderson on 
 Judicial Writs § 181. 
 
 'Alderson on Writs § 174; Mechem on Public Officers §754. 
 
 'Knox V. Webster, cases 328; Russell v. Lawton, cases 330; Albrecht 
 ■v. Long, cases 333 ; Commonwealth v. Magee, cases 307. 
 
 'Alderson on Judicial Writs § 182 ; Mechem on Public Officers § 755. 
 
 ^Hartleib v. McLane, cases 348. 
 
 ^Mechem on Public Officers § 762 ; Noble v. Desmond, 72 Cal. 330. 
 
 *Sexton V. Nevers, 20 Pick. (Mass.) 451, 32 Am. Dec. 225 ; Johnson 
 \. Reese, 28 Ga. 353, 73 Am. Dec. 757; Sheehy v. Graves, 58 Cal. 449. 
 
 'Todd V. Hoagland, 36 N. J. L. 352. 
 
 'Acton V. Knowles, cases 464 ; Mechem on Public Officers § 764 ; Wat 
 son on Sheriffs *203. 
 
 '"Burk V. Campbell, cases 343 ; McGregor v. Brown, cases 342. 
 
139 EXECUTION OF. § 158 
 
 § 158, Measure of Liability — Defenses. The measure 
 of the officer's liability in any of these cases is the amount that 
 could have been realized by proper care and diligence, and it is 
 no defense that any part or the whole can still be realized.* 
 The burden is on the officer to show that part or all and how 
 much could not have been recovered. It is presumed that all 
 might have been recovered. It is a good defense that the prop- 
 €rty pointed out was exempt or belonged to another." It is no 
 defense that all the property pointed out by the plaintiff was 
 levied on under his process, and that the remainder could not 
 "be found by the sheriff till pointed out by the junior creditor 
 on whose writ it was sold.'^ It is no defense that the deputy 
 ■disobeyed the terms of his commission or the officer's orders.^ 
 It is no defense that the officer omitted the levy or released the 
 property in deference to a senior process irt the hands of 
 another officer.' 
 
 § 159. To THE Defend A.NTS in the Process. An offi- 
 cer holding and executing valid process will become liable to an 
 action by the defendants therein: i, if the officer arrests or 
 ■seizes beyond his territory;* 2, on Sunday, after the return 
 •day,* or, 3, contrary to the exemption laws;" 4, if he breaks 
 the outer door of the defendant's dwelling, or injures any other 
 property by breaking into anything without demanding admis- 
 sion ;" 5, if he takes property from the defendant's person, for 
 ■example, a watch or money in his pockets, or a pin on his tie, 
 but not, it was held, for taking it out of his hand;' 6, if he 
 perpetrates a fraud to accomplish a levy, as by decoying the 
 
 'Ledyard v. Jones, cases 344. But see To-wnsend v. Libbey, 70 Me. 162. 
 "Bonnell v. Bowman, 53 111. 460; Canada v. South-wick, 16 Pick. 
 (Mass.) S.'i6. 
 
 'Knox V. Webster, cases 328. 
 
 ^Boucher v. Wiseman, cases 332 ; Albrecht v. Long, cases 336. 
 'Payne v. Drewe, cases 338 ; Albrecht v. Ldhg, cases 333. 
 'Watson on Sheriffs *204; Upton v. Craig, 57 111. 257; Vail v. Le-wis, 
 4 Johns. (N. Y.) 450, 4 Am. Dec. 300. 
 "Mechem on Public Officers § 774. 
 'Burton v. Wilkinson, cases 316. 
 'Maxham v. Day, 82 Mass. 213; Green v. Palmer, 15 Cal. 411. 
 
§159 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 140> 
 
 defendant into his territory, or arresting him on criminal proc- 
 ess, or asking to see the watch in defendant's pocket and taking 
 it when shown;'" 7, if he levies on other property after he has- 
 taken enough to satisfy the process beyond all question," or 
 arrests without searching for goods when there is plenty of 
 property to satisfy his writ,^ or takes realty when there is plenty 
 of personalty which he should first take,'' or takes and sacri- 
 fices very valuable property when enough other was offered 
 that he could have sold without such sacrifice f 8, if he works- 
 or uses the property taken, or allows it to be lost or injured for 
 want of due care;' 9, or puts any unnecessary hardship on the 
 defendant, by maltreating him while under arrest,^ or purposely 
 making the levy in a violent, insulting, or oppressive way, for 
 example, at night, or at the defendant's store during business- 
 hours with vexatious leisure so as to injure his business;'' 10, 
 if he delivers up the property to a claimant or other person 
 without taking a sufficient security;' 11, if he proceeds after 
 receiving official notice or notice from the plaintiff that the- 
 process has been paid, stayed, superseded, or enjoined, but mere 
 statement by the defendant that he has paid is not enough f 12, 
 if he does not follow the law as to advertising and selling or 
 unnecessarily sacrifices the property at the sale or continues 
 selling after enough has been realized;^ 13, if he buys directly 
 or indirectly at the sale, was interested in or a party to the 
 process, or was otherwise disqualified from acting;" 14, if he 
 
 '"Holker v. Hennessy, cases 413 ; Mack v. Parks, 74 Mass. (8 Gray) 517. 
 
 "Freeman on Executions § 253 ; Mechem on Public Officers § 773. 
 
 'Barhydt v. Valk, 12 Wend. (N. Y.) 145, 27 Am. Dec. 124. 
 
 'Freeman on Executions § 279. 
 
 "Rogers v. Brewster, S Johns. (N. Y.) 125. 
 
 "Cooley on Torts *462. 
 
 °Wood V. Graves, 144 Mass. 365, 59 Am. Rep. 95, 11 N. E. 567. 
 
 "McElhenny v. Wylie, 3 Strobh. (S. Car.) 284, 49 Am. Dec. 643; Bar- 
 rett y. White, 3 N. H. 2«o, 14 Am. Dec. 353 ; Alderson on Writs § 179. 
 
 'Mechem on Public Officers §§ 762, 772. 
 
 "Hayes v. Buzzell, 60 Me. 205 ; Freeman v. Leonard, 99 N. C. 274 ; Car- 
 rier V. Esbaugh, 70 Pa. St. 239 ; Hall v. Ray, 40 Vt. 576, 94 Am. Dec. 440 ;. 
 Cooley on Tgrts *462. 
 
 "Singletary v. Carter, cases 364; McMillan v. Rowe, cases 360. 
 
141 EXECUTION OF. § 160 
 
 fails to account for the surplus in any case and for all if the 
 writ is set aside while he holds the property or proceeds;^ or, 
 15, if he had no process or it was void. There are many other 
 cases in which the officer would become liable to the defendant 
 in the process; but those above mentioned occur most fre- 
 quently. 
 
 § 160. To Strangers to the Process. The officer 
 may become liable to strangers to the process by any unneces- 
 sary interference with their persons or property.^ While the 
 officer may enter the premises of strangers, or evefi break into 
 their dwellings after demanding admission, to take the person 
 or property of the defendant therein; he is liable to them if 
 he attempts to store property on their premises, or stays longer 
 than is necessary to get it away." 
 
 4. WHERE THE PROCESSES MAY BE EXECUTED. 
 
 § 161. Execution of process beyond the limits of the 
 territory to which the jurisdiction of the court or the officer's 
 jurisdiction to act extends, amounts to nothing, though the 
 process be addressed to that territory. Where the statutes pro- 
 vide that a court of one county may issue its process to and 
 have it executed in another county upon certain things being 
 done, there is considerdble dispute as to whether process issued 
 and executed in the other county can be avoided collaterally, 
 • '^ only upon direct attack for failure to comply with the stat- 
 'ute.* 
 
 'Cooley on Torts *463. 
 
 ^Lammon v. Feusier, cases 323; Mechem on Public Officers §§781-783. 
 'Williams v. Powell, loi Mass. 467; Burton v. Wilkinson, cases 316; 
 Drake on Attachment § 20a. 
 
 *Kentzler v. Chicago, M. & St. P. Ry. Co., cases 353, and notes. 
 
§ 162 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 142 
 
 5. WHEN THE PROCESSES MAY BE EXECUTED. 
 
 How Early. 
 
 § 162. If the officer presumes to execute the process 
 before he receives it he is a mere trespasser. That he acted 
 because he knew it had been made out and mailed to him, and 
 that, he afterwards received it and returned his action upon it, 
 will not make the act valid nor excuse his trespass.^ But the 
 moment he receives it with orders from the creditor to proceed 
 he may execute it. The debtor can demand no indulgence of 
 him." The attachment or garnishment writ may be executed 
 before the summons to the defendant is served or issued.^ 
 
 How Late. 
 
 § 163. The diligence with which the officer must proceed 
 to avoid liability has already been considered.^ The only re- 
 maining question under this head is the validity of delayed 
 action. The attachment and garnishment statutes often re- 
 quire the defendant and garnishee to be served a certain num- 
 ber of days before the time for appearance mentioned in the 
 process. In such cases service less than that many days before 
 the appointed time will usually be held bad on direct attack, 
 and has been held void on collateral attack." When the writ 
 expires the officer's authority, except to complete acts begun, 
 expires with it. A voluntary payment of money received by 
 the officer from the debtor after the return day if no levy has 
 been made, is not held by him in his official capacity. Th^s^ 
 creditor cannot compel him to account by summary process of 
 attachment, nor by proceeding upon his bond, but only by 
 
 'Wales V. Clark, cases 362. 
 'Goode V. Miller, 78 Ky. 235, 237. 
 
 'Hargan v. Burch, cases 177; Bank of Mo. v. Matson, cases 290. 
 "See ante § 157. 
 
 •Southern Bank v. McDonald, 46 Mo. 31 ; Attachment § 666, Century 
 Digest, Vol. 5; Rood on Garnishment §268. 
 
143 EXECUTION OF. § 164 
 
 assumpsit or similar action.^ A levy after the return day is 
 generally held to be absolutely void, though another levy had 
 been made in season under the same process. The officer is a 
 trespasser, and the purchaser gets no title.^ A levy after the 
 officer has indorsed his return and filed the process is void 
 though the return day has not yet arrived.^ But a mere in- 
 dorsement of the return on the process does not prevent a sub- 
 sequent levy before the return day/ and a levy on the return 
 day is good." If a levy is made in time the further proceed- 
 ings (advertising, selling, disposing of the proceeds, and mak- 
 ing return) may be had after the return day and after the writ 
 has been returned, though no new authority has been issued, 
 and Ihe officer's term has meanwhile expired.* 
 
 6. WHO MAY EXECUTE THE PROCESSES. 
 
 § 164. Process can be executed only by an officer duly 
 authorized to execute such processes generally, or especially 
 deputized to serve that particular process. Execution of a 
 process by an unauthorized individual is void, and the posses- 
 sion of the process is no protection to him.'' Execution of 
 process by a de facto officer is not void as to innocent parties, 
 but the officer himself is not protected by the writ." Process 
 can be executed only by an officer who has it in his possession, 
 and is acting within the territory of his jurisdiction.' Execu- 
 
 'Hamilton v. Ward, 4 Tex. 356; Wyer v. Andrews, 13 Me. 168, 29 
 Am. Dec. 497; Bank v. Reid, 3 Ala. 299. 
 
 ''McDonald v. Gronefeld, 45 Mo. 28; Sturges's Appeal, 86 Pa. St. 413; 
 Commonwealth v. Magee, cases 307; Freeman on Executions § 106. 
 
 'Phillips V. Dana, 4 111. 551 ; Paine v. Hoskins, 71 Tenn. (3 Lea) 284. 
 
 'Courtney v. Carr, 6 Iowa 238; Nelson v. Cook. 19 111. 440. 
 
 "Evans v. Barnes, cases 468 ; Blaisdell v. Sheafe, S N. Ham. 201 ; Drake 
 on Attachment § 187b. 
 
 'Evans v. Barnes, cases 468; Colyer v. Higgins, cases 346; Smith v. 
 Osgood, cases 318; Acton v. Knowles, cases 464. 
 
 'McMillan v. Rowe, cases 360. 
 
 'Green v. Burke, cases 205. 
 
 "Wales V. Clark, cases 362; ante § 161. 
 
:§165 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 144 
 
 tion of process by an ofificer interested in it or party to it/ or 
 by one officer to whom it might be directed when it is directed 
 to another/ has been held absokitely void on collateral attack ; 
 but it seems to me that these matters should only be held to 
 make the act voidable at most, and such is the opinion of sev- 
 eral courts and text-writers of recognized ability/ While 
 property is held by an officer under one process no other officer 
 •can take it. An officer who has levied upon property under one 
 process may make a second levy under another process issuing 
 from the same court/ by simply indorsing it on the writ, though 
 the actual possession is held by his receipter.^ Yet even he can- 
 not take it under process from any other court without statute 
 ■expressly authorizing such action; for he is merely the cofirt's 
 servant, and he cannot serve two masters whose orders may be 
 inconsistent." 
 
 7-8. WHAT MAY BE TAKEN UNDER THE PROC- 
 ESSES. 
 
 Plan of Treatment. 
 
 § 163. In treating of executing the processes I first con- 
 sidered the power of the legislature and courts -to limit and 
 control the use of the processes, inatters which apply equally to 
 the issuance and the execution of them. Then I looked for- 
 ward, as a prudent officer should on receiving the process, to 
 ■consider what rights and liabilities the officer may acquire in 
 executing the process or in making default. Then I spoke 
 very briefly of the place, time, and person, where, when, and 
 by whom, the process might be executed. The next pertinent' 
 
 'Singletary v. Carter, cases 364. 
 
 'Gordon v. Camp, cases 296; Menderson v. Speaker, cases 298; Bybee 
 V. Ashby, reviewed in cases 280. 
 
 'Terrill v. Auchauer, 14 Ohio St. 80. ante §§ 39-43 ; Freeman on Execu- 
 tions § 40 ; Alderson on Judicial Writs §§ 25, g8. 
 
 *Hewe V. Moody, cases 365 ; Bailey v. Childs, 46 Ohio St. 557. 
 
 "Bell V. Shafer, 58 Wis. 223, 16 N. W. 628; Tomlinson v. Collins, 20 
 ■Conn. 364. 
 
 'Read v. Sprague, 34 Ala. loi ; Burnham v. Dickson, 5 Okl. 112. 
 
145 EXECUTION OF. § 166 
 
 inquiry seems to me to be. What may be taken? This ques- 
 tion must be answered before the levy can be made under an 
 attachment or execution, and its answer in advance may avoid 
 payment of costs on a fruitless garnishment. In view of some 
 differences in the processes, I will first consider the comparative 
 scope of the various processes, then some matters peculiar to 
 garnishment, and finally the matters applicable alike to all 
 processes. 
 
 Comparative Scope of Processes. 
 
 § 1 66. Garnishment is not an appropriate process to 
 arrest the person ; nor is a Heri facias, to take intangible things. 
 Most, if not all, writs are similarly limited as to their scope; but 
 the great body of rules in this connection apply alike to all proc- 
 esses. Wherever capias lies in attachment it lies in execution.'' 
 Whatever property may be taken in execution may be attached.' 
 Whatever cannot be taken under execution cannot be attached.' 
 In scope, garnishment differs from these principally in the fact 
 above mentioned, and the further fact that it is peculiarly 
 adapted to impounding obligations to pay. Moreover, it is 
 not usually desirable nor available against real property ; but in 
 a few states the garnishee may be charged for land in his pos- 
 session.^ Otherwise, almost any property liable to attachment 
 or execution is liable to garnishment. 
 
 Matters Peculiar to Garnishment. 
 
 § 167. Two Grounds of Liability. The statutes con- 
 template two distinct classes of cases in which the garnishee 
 may be charged : i , when he has specific property in his pos- 
 session belonging to the debtor, that is, when he is a bailee ; 2, 
 when he is indebted to the defendant.^ Of these in their order ; 
 but first, as to when the liability begins. 
 
 'Harbert's Case, cases 137. 
 "Handy v. Dobbin, cases 424. 
 
 •Drake on Attachment § 244 ; Kneeland on Attachment § 310. 
 'Webber v. Hayes, 117 Mich. 256, 75 N. W. 622. 
 'Allen V. Hall, cases 140; Botsford v. Simmons, 32 Mich. 357. 
 J 
 
§ 168 ATTACHMENTS. GARNISHMENTS, AND EXECUTIONS. 146 
 
 § 1 68. From What Time Reckoned. The liability of 
 the garnishee, whether as debtor or as bailee, depends upon the 
 situation at the time fixed upon by the statute, which is usually 
 the moment when the process is served on him. A very few 
 statutes make it date from the time the officer receives the writ, 
 and others allow his liability to be increased by anything occur- 
 ring before he answers. The rule usually applicable is that 
 no event subsequent to the date fixed upon can discharge him 
 if he was liable then, make him liable if he was not liable then, 
 nor increase or diminish the amount of his liability.' 
 
 § 169. Garnishee as Bailee. The garnishee can be 
 charged as bailee only for property liable to sale under exe- 
 cution, for when charged as such he discharges himself by 
 delivering up the specific thing to the officer to be sold. It 
 would be useless to charge a garnishee if the thing could not 
 be made available when surrendered.* But on the other hand, 
 if the property is such that it could be sold under execution, 
 that fact is pretty good evidence that the garnishee can be 
 charged for it,° unless it can be sold under execution only by 
 virtue of some statute prescribing a specific procedure, in which 
 case that procedure only can be followed.' And a few statutes 
 authorize garnishment only for property which cannot be 
 levied on.'' The property for which the garnishee can be 
 charged as bailee will be considered when we come to discuss 
 the matters applicable to all processes. All that need be added 
 under the present head is that the garnishee can be charged as 
 bailee only for property actually within the control of himself 
 or his bailee, independent of the control of the 'defendant.* 
 
 'Foster v. Singer, cases 387: Webber v. Bolte, cases 390; Lehmann v. 
 Farwell, cases 392 ; Rood on Garnishment § 49. 
 'Rood on Garnishment § 393. 
 'Banning v. Sibley, 3 Minn. 389; Old S. N. B. v. Williams, 112 Mich. 
 
 564. 
 
 'Mooar v. Walker, 46 Iowa 164; Packard v. Laev, 100 Wis. 644. 
 
 'Brown v. Davis, cases 370. 
 
 'First Nat. Bank v. Davenport &c. Ry. Co., cases 372; Gutterson v. 
 Morse, cases 376; Avery v. Monroe, cases 378. 
 
147 EXECUTION OF. § 170 
 
 § 170. Garnishee as Debtor. The fact that a debt 
 presently owing is not payable till a future day, or till after 
 demand, or is secured by mortgage or otherwise, or could be 
 sued for only by the defendant and others jointly, is generally 
 no defense to the garnishment.' The garnishee can be charged 
 as debtor only when he is proceeded against as debtor^ . and 
 only on an unconditional^ liquidated obligation on contract or 
 judgment," payable in money,* not exempt under the statute 
 from liability for debt," nor evidenced by any outstanding ne- 
 gotiable instrument," nor in suit or judgment in any other 
 court.' As a general rule any defense which the garnishee 
 could set up in a suit against him by his creditor is equally avail- 
 able when his creditor's creditor seeks to charge him on the 
 debt, and no other defenses are available.' 
 
 Matters Applicable to All Processes. 
 
 § 171. General Rule. The policy of the law is to 
 make the judgments of the courts effective, and for this purpose 
 the processes now being discussed have been provided. In 
 keeping with this policy, we would expect to find the courts 
 willing that these processes should be used in any way that 
 bids fair to accomplish that purpose without producing a 
 greater evil than that for which the judgment was given. And 
 such is the law. The use of a capias to make judgments effect- 
 ive has been restricted by statute, because the public has become 
 convinced that its unrestricted .use is more productive of evil 
 than of good. If it be alleged that any property is not liable 
 to executions, attachments, and garnishments, a good reason 
 
 'Moore v. Gilmore, cases 382 ; Rood on Garnishment §§ 46, 126, 127. 
 
 'Botsford V. Simmons, 32 Mich. 357. 
 
 'Foster v. Singer, cases 387; Webber v. Bolte, cases 390. 
 
 'Lehmann v. Farwell, cases 392. 
 
 *Jones V. Crews, cases 394. 
 
 'Reynolds v. Haines, cases 400. 
 
 'Thompson v. Gainesville Nat. Bank, cases 395. 
 
 'Scott V. Rohman, cases 405. 
 
 'Allen V. Hall, cases 140 ; Rood on Garnishment § 46. 
 
§ 172 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 148 
 
 should be given to support the assertion. Therefore, in the 
 discussion of this subject, we will start with the general i^ule 
 that all property is liable to the processes, and will limit the state- 
 ment by such exceptions as we find supported by sufficient rea- 
 sons. The principal of these reasons are : i, that the judgment 
 or process is limited so as not to extend to the things proposed 
 to be taken; 2, that they are not property; 3, that the defendant 
 has not a sufficient estate in them ; 4, that they are exempt. Of 
 these in their order. 
 
 § 172. The Judgment or Process Limited. All judg- 
 ments and processes are limited as to persons, place, and prop- 
 erty. As to persons, they are limited to the person against 
 whom the judgment is rendered or the pi"ocess issued. The 
 property of strangers cannot be taken though they be equally 
 liable with the defendant for the payment of the demand sued 
 on.° As to place, they are limited to the property within the 
 jurisdiction.^ In attachment proceedings without personal 
 service or appearance, the judgment is limited to the property 
 attached; but if the defendant has appeared generally, the exe- 
 cution may be both general and special.'' When the judgment 
 is general, the property of the defendant within the jurisdic- 
 tion which can be taken is limited by the scope of the process, 
 as above indicated.^ If the process be against several, the offi- 
 cer may take their joint property, or, at his option, levy the 
 full amount of the property of any one, disregarding the debt- 
 or's wish as to selection, unless the process otherwise directs, 
 or some statute secures these rights to defendants.* 
 
 § 173. 2. The Thing not Property. Many things 
 
 contribute to our enjoyment of life which the law does not look 
 
 upon in the light of property at all.^ The general rule in this 
 
 •Hamner v. Ballantyne, cases 312 ; Freeman on Executions § 254. 
 'Lindley v. O'Reilly, cases 65; Kentzler v. Chicago, &c. Ry. Co., cases 
 353- 
 
 Pennoyer v. Neff, cases 48; Conn v. Caldwell, cases 425. 
 'Ante § 166. 
 
 'Freeman on Executions §§ 258, 259. 
 •See Coke Lit. p. 47, enumerating pets, etc. 
 
149 EXECUTION OF. § 173 
 
 connection is that nothing can be taken under process as prop- 
 erty unless the thing may be sold. Thus, intoxicating liquors 
 where prohibited," burglars' tools, dies to counterfeit the pub- 
 lic currency, or any other thing, the sale, manufacture, and 
 possession of which is unlawful, are not property nor liable to 
 seizure to satisfy debts. Again, the right to sue for a tort is 
 not property. It cannot be sold separate from the thing upon 
 which the tort was committed, and the wrong-doer cannot be 
 charged as garnishee by reason of his liability for it.' Again, 
 any franchise granted by the public to an individual,' or license 
 granted by one individual or corporation to another, as a seat 
 on the stock exchange," are not property, but personal privi- 
 leges. In the same connection, may be mentioned, the right 
 of an author to publish his manuscript or to withhold it,^ and 
 the monopoly of authors and inventors secured to them by the 
 patent and copyright laws."" All of these have been held not 
 liable to any legal process to enforce judgments; sometimes, 
 on the ground that they are not property, and sometimes on 
 other grounds. But in most of these cases, and it may extend 
 to all yet, the courts have held that the advantages of these 
 privileges may be made available for the satisfaction of judg- 
 ments, by invoking the extraordinary jurisdiction of the equity 
 courts.^ Again, notes, bonds, judgment records, title-deeds, 
 and other evidences of title or indebtedness are not property 
 in such a sense that they are liable to seizure and sale on any 
 process to enforce judgments, unless there be a statute making 
 the seizure of the written evidence equivalent to the seizure 
 of the things evidenced.* 
 
 "Kiflf V. Old Colony, &c. Ry. Co., 117 Mass. 591, 19 Am. Rep. 429; Nich- 
 ols V. Valentine, 36 Me. 322 ; Barron v. Arnold, 16 R. I. 22. But see : Howe 
 v., Stewart, 40 Vt..i4S; Tucker v. Adams, 63 N. Hamp. 361; Fears v. State, 
 102 Ga. 274. 
 
 'Lehmann v. Farwell, cases 392. 
 
 'Cue V. Tide- Water C. C, 65 U. S. (24 How.) 257. 
 
 'Lowenberg v. Greenebaum, gg Cal. 162, 33 Pac. 7g4. 
 
 'Dart V. Woodhouse, 40 Mich. 3gg, 2g Am. Rep. 544. 
 
 "Stevens v. Gladding, 58 U. S. (17 How.) 447. 
 
 'Ager V. Murray, 105 U. S. 126. 
 
 'Freeman on Executions § 112; Drake on Attachment § 244d; Kneeland 
 on Attachment §323; Rood on Garnishment §§ 163-168. 
 
§ 174 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS 150 
 
 § 174. 3. Defendant''s Estate Insufficient. A 
 thing which is property may not be Hable to the process, be- 
 cause the defendant has not a sufficient estate in it. At com- 
 mon law, nothing could be taken in which the defendant's estate 
 was merely equitable, because the law courts did not recognize 
 a merely equitable title, and the equity courts enforced their 
 decrees by coercion. But statutes have been passed in most 
 *of the states making such estates liable; and the codes which 
 have abolished the distinctions between law and equity have 
 largely contributed to the same effect. ° Property in which the 
 defendant has a vested legal estate is often held not liable, 
 because other persons have estates in the same property which 
 might be prejudiced by a seizure and sale. Under this head, 
 may be mentioned, future estates in chattels, which could be 
 seized only by ousting the particular tenant ;" property in which 
 the defendant has only an undivided interest as joint tenant, 
 tenant in common, or partner;' and cases in which his estate 
 is subject to a mortgage, pledge, or lien to another.'' But in 
 most states, if not in all, each of these estates is held liable to 
 some of the processes without statute, or is made so liable by 
 statute." What are called future contingent estates may also 
 be mentioned under this head. They are not estates at all, but 
 only possibilities of future acquisition, and for that reason are 
 not liable to the processes.^ The sheriff cannot levy on a hope. 
 The- same reason exists, and the rule equally applies, as to prop- 
 erty for the purchase of which the defendant is negotiating, but 
 title to which he has not yet acquired; and so, as to money 
 
 'Freeman on Executions §116; Kneeland on Attachment §324; Rood 
 on Garnishment §§ 153-154. 
 
 "Smith V. Niles, 20 Vt. 315, 49 Am. Dec. 782. 
 
 'Freeman on Executions §§125, 254a; Drake on Attachment §248; 
 Kneeland on Attachment § 328 ; Rood on Garnishment §§ 156-162. 
 
 •Freeman on Executions §§ 117, 120; Drake on Attachment § 245; Knee- 
 land on Attachment §§325-327; Rood on Garnishment §§169-176. 
 
 'See the above, also : Moore v. Gilmore, cases 382 ; Smith v. Menom- 
 inee Circuit Judge, cases 379. 
 
 'Ducker v. Burnham, 146 111. 9, 37 Am. St. Rep. 135. 
 
151 EXECUTION OF. § 176 
 
 sent to pay a debt owing to him, but not yet paid over.^ When, 
 on the other hand, a creditor of the seller tries to get it, he is 
 too late if the title has passed.* 
 
 § 175. 4. Things Exempt. Grounds Enumerated. A 
 thing within the scope of the judgment and process, which is 
 property, and in which the defendant has a sufficient estate, 
 may be exempt on any of several grounds. The principal 
 grounds of exemption are the following: i, that a statute 
 makes the thing exempt for the use of the defendant and his 
 family, so that they may be self-supporting and honorable 
 members of society rather than burdens upon it; 2, that the 
 seizure and sale would practically destroy the thing, which is 
 sometimes called an equitable exemption; 3, that the personal 
 security of every individual and the public peace would be 
 endangered by allowing such seizure ; 4, that the thing is serv- 
 ing the public in its present use, and that service would or might 
 be interrupted by a seizure ; 5, that the thing is now in the pos- 
 session of some other state agency, and could not be taken by 
 this court or officer without an unwarranted violation of the 
 authority and interruption of the business of the other. Of 
 these in their order. 
 
 §176. I. Statutory Exemptions. Statutes exist in every 
 state, making certain property exempt from all processes to 
 enforce judgments and decrees. These statutes are not uni- 
 form. The courts construe them very liberally in favor of 
 the debtors; for example, they are usually available to non- 
 residents unless restricted to residents, extend to the proceeds 
 while traceable and not put to some other use, and cannot be 
 waived in advance by anything short of a pledge or mortgage.* 
 
 "Buchanan v. Alexander, cases 265 ; Freeman on Executions § 124 ; 
 Drake on Attachment § 246 ; Kneeland on Attachment § 327 ; Rood on Gar- 
 nishment §§ S7, 125. 
 
 'Moore v. Davis, cases 398 ; Drake on Attachment § 245a ; Rood on 
 Garnishment § 57. 
 
 'Freeman on Executions §§ 209, 250 ; Drake on Attachment § 244a ; 
 Kneeland on Attachment §§383-402; Rood on Garnishment §§82-107. 
 
§ 177 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 152 
 
 §177. 2. Equitable Exemptions. Some property other- 
 wise liable is exempt, on the ground that extreme hardship 
 would be inflicted on the defendant by the seizure and sale, 
 without any commensurate gain to the creditor. For example, 
 title deeds, bonds, and manuscripts are not property as such, 
 but merely evidence of property ; yet the material used to make 
 the record has some value as waste paper. The law will not 
 allow them to be sacrificed for this pittance.^ Again, growing 
 crops would often be worth something in the immature state; 
 but the law will not permit them to be so destroyed. ° So, of 
 articles in course of manufacture which would be substantially 
 destroyed by interference with them; for example, hides in a 
 tan-vat, dough in a bake-oven, and bricks, charcoal, and potters' 
 wares, being fired.^ So, of property so perishable that it 
 would spoil before it could be sold. Yet the greater part of 
 these difficulties may be avoided. The court may order the 
 perishable property sold on the spot." Statutes usually provide 
 that filing a notice of levy on growing crops shall be equivalent 
 to an actual seizure, and that the crops may be left to stand till 
 they mature. The sheriff may stand by till the process of 
 manufacture is complete and then levy; or, though he cannot 
 be compelled to do it, he may levy at once and complete the 
 process of manufacture himself if he is willing to assume the 
 risk of failure, in which case he is liable only for want of ordi- 
 nary care.^ 
 
 §178. 3. Peace and Security Exemptions. Property on 
 the defendant's person is not liable, because the seizure of it 
 is necessarily such an indignity to the wearer that a breach of 
 the peace would be almost certain to follow. Moreover, the 
 
 "Oystead v. Shed, 12 Mass. 506. See ante § 173. 
 
 'Burleigh v. Piper, 51 Iowa 649; Penhallow v. D wight, 7 Mass. 34, S 
 Am. Dec. 21 ; Wallace v. Barker, 8 Vt. 440. 
 
 'Bond V. Ward, 7 Mass. 123; Wilds v. Blanchard, 7 Vt. 138. 
 
 'Attachment § 642, Century Digest, Vol. S- 
 
 "Cheshire National Bank v. Jewett, 119 Mass. 241 ; Hale v. Huntley, 
 21 Vt. 147. 
 
153 EXECUTION OF. § 179 
 
 right to make such seizures would destroy the personal security 
 of everyone, and open the door to numerous abuses.^ The 
 same reasons are at the foundation of the rule that the officer 
 shall not break into the defendant's dwelling to levy on his 
 property." 
 
 § 179. 4. Public Service Exemptions. The property of 
 individuals and corporations which is being used in the public 
 service^the cars on which the public is being carried, the 
 water-works by which it is being supplied with water, even 
 the coal being used to fire the engines that draw the cars or 
 pump the water, or any other property being used in the public 
 service — is exempt from seizure under any process as long as 
 the service continues." The same reasons conspire with others, 
 to be mentioned in the next paragraph, to prevent the property 
 •of public corporations being taken ;* and it has even been held 
 that the fees of public officers could not be taken by garnishing 
 the individuals owing them, because the appropriation of the 
 fees to the payment of the debt might prevent the public from 
 getting the service. ° Land was not liable under the feudal sys- 
 tem ; and the reason commonly given is that the public defense 
 and revenues depended on the tenure. But now real property 
 is liable by statute in every state. 
 
 § 180. 5. Jurisdictional ConMct Exemptions. That the 
 public business may be carried on with any success at all, it is 
 necessary that no department of the state should interfere with 
 the affairs of any other, except in the manner provided by law. 
 Whenever any department of state takes possession of any- 
 thing to do anything with it, no other department has any right 
 
 'Holker v. Hennessey, cases 413; Mack v. Parks, 74 Mass. (8 Gray) 
 517, 69 Am. Dec. 267. In taking distresses at the common law this privilege 
 extended to any chattel in actual use. Coke Lit. 47a. But the American 
 cases do not allow the same privilege from levy under process. Potter v. 
 Hall, 20 Mass. (3 Pick.) 368J State v. Dillard, 3 Ired. L. (N. Car.) 102, 
 38 Am. Dec. 708; ante § 159. 
 
 ^Bailey v. Wright, cases 427; Burton v. Wilkinson, cases 316. 
 
 "Gardner v. Mobile & N. Ry. Co., cases 238. 
 
 *Klein v. New Orleans, cases 253. 
 
 "Sexton V. Brown, 72 Minn. 371, 75 N. W. 600. 
 
§ 181 ATTACHMENTS^ GARNISHMENTS, AND EXECUTIONS. 154 
 
 to interfere, otherwise than for the purpose of supervising 
 according to the authority given it. This fact prevents one 
 constable from taking property out of the hands of another,, 
 even on a process from the same court ;° and, with greater rea- 
 son, prevents any officer taking property from an ofificer of 
 another court, and prevents every court from interfering with 
 or attempting to command any person in carrying out the 
 orders of any other court. Judgment debtors cannot be re- 
 quired to answer as garnishees in a court other than the one 
 that rendered the judgment, because that would be interfering- 
 with the power of the court to enforce its judgment.' Prop- 
 erty being administered by probate courts cannot be taken from 
 their officers on processes issued from other courts; nor can 
 these officers be required to answer as garnishees in any other 
 court, because the doing of either of these things would be 
 interrupting the business and violating the jurisdiction of the 
 probate court.* Even property that has been released on bond 
 is still exempt." 
 
 9. THE LEVY AND SERVICE. 
 
 Matters Under this Head Reviewed. 
 
 § 181. Having ascertained what may be taken, the officer 
 would next have to decide what must be done to take it. That 
 is the question to be answered under this head. What must 
 be done depends upon the nature of the process in hand and 
 the statutes affecting it. When attachments issue at the com- 
 mencement of the action the officer receives a process consist- 
 ing of two parts ; or else the parts are wholly divided, and he 
 receives two processes. In either case, one is a command to 
 summon the defendant; the other, to attach his property. 
 
 'Hewe V. Moody, cases 365. 
 
 'Scott V. Rohman, cases 405. 
 
 •Hudson V. Saginaw Circuit Judge, cases 409. 
 
 'Hagan v. Lucas, cases 418. 
 
155 EXECUTION OF. § 182 
 
 Where the attachment issues in a pending action no new sum- 
 mons is necessary. While the garnishment process does not 
 consist of these two distinct parts, it equally serves a double 
 purpose — as original process commencing an action against 
 the garnishee, and as a command to him to hold the defendant's 
 property. An execution contains no command to summon, for 
 the defendant has already had his day in court. However, 
 many statutes require that the debtor shall be notified that the 
 attachment or execution has been issued and levied, or that the 
 garnishment has been issued and served. From what has been 
 said it will be seen that the execution of the processes consists : 
 I, of levying on and disposing of the property of the defendant 
 according to law and the command of the process ; 2, of serving 
 the original processes to commence the actions against the 
 defendant and garnishee; and, 3, of serving the defendant with 
 notice of the execution, attachment, or garnishment, and of 
 what has been done under it, where such notice is required by 
 the statute. These three will now be considered in the order 
 named ; but under the first, only the essentials to perfect the levy 
 will be considered, the further proceedings to sale being re- 
 served for subsequent topics.^ 
 
 The Levy. 
 
 § 182. On Land. The modern statutes do not require 
 any actual entry to efifect a levy on land, but provide as a sub- 
 stitute that the officer shall indorse a certificate of levy upon 
 his process, and that notice of this shall be filed in some public 
 office. Under these statutes the lands must be described with 
 the same certainty that is necessary to pass title by deed, and 
 is not bound till the notice is filed as required.^ 
 
 § 183. On Chattels. What is Sufficient. An actual 
 levy is usually required in the case of chattels. To levy is to 
 seize. The decisions are not entirely harmonious as to what 
 
 'See §§208-212. 
 
 'McGregor v. Brown, cases 342 ; Hughes v. Streeter, cases 506. 
 
§ 183 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 156 
 
 constitutes a sufficient seizure; and probably much depends 
 upon the manner in which the question arises, and the nature 
 of the property seized. If the defendant has submitted to the 
 levy, it is immaterial, so far as he is concerned, whether the 
 officer ever saw or possessed the property." A doubtful act 
 and declaration of levy by the officer would estop him in an 
 action by the defendant against him for a wrongful levy, 
 though insufiicient in a contest between two officers as to which 
 had made the first levy. What would be considered no seizure 
 of a buggy might be a sufficient levy on a red-hot casting or a 
 herd of wild horses.* The test usually applied is to determine 
 whether the officer so interfered with the property that he 
 would be liable to an action of trespass by the defendant but for 
 the protection of the process ; and in this respect it is said that 
 he must have touched the property or a part of it, or must have 
 declared that he was levying on it while he was so situated that 
 he could see it and might have touched it if he had wished to 
 do so.° Therefore, an officer who goes to a building to levy 
 on its contents, and being unable to get in, proclaims at the 
 door that he levies on all the property in the building, has made 
 no levy, though he guard all the doors and windows so that no 
 one could get in or out without his knowledge. An assign- 
 ment after his alleged levy or an actual levy by another officer 
 would prevail' Secret levies are void as to third parties. The 
 
 'Walker v. Shotwell, 21 Miss. (13 Sm. & M.) 544. 
 
 'Portis V. Parker, cases 286; Long v. Hall, 97 N. Car. 286. 
 
 Peculiar Levies Sustained. — A levy on' corn in a crib by nailing it 
 up, notifying the defendant and other spectators of the levy, and so leaving 
 it without a guard, was sustained against a subsequent purchaser from the 
 defendant. Richardson v. Rardin, 88 111. 124. A levy on hay in a barn by 
 posting notice thereof on the door without moving the hay or leaving any- 
 one in charge was sustained. Merrill v. Sawyer, 25 Mass. (8 Pick.) 397. 
 Contra, Bryant v. Osgood, 52 N. Hamp. 182. A levy on grain in a stack 
 by going to it and forbidding the defendant to touch it was sustained. Gal- 
 lagher V. Bishop, IS Wis. 276. See also : Polley v. Lenox L W., 86 Mass. 
 (4 Allen) 329; Mills v. Camp, 14 Conn. 219, 34 Am. Dec. 488; Davidson 
 V. Waldron, 31 111. 120, 83 Am. Dec. 206; Bicknell v. Trickey, 34 Me. 273. 
 
 'Green v. Burke, cases 205 ; HoUister v. Goodale^ cases 429. 
 
 •Meyer v. Missouri G. Co., 65 Ark. 286, 67 Am. St. Rep. 927, 45 S. W. 
 1062 ; Taffts v. ManloveJ 14 Cal. 47, 73 Am. Dec. 610 ; Hibbard v. Zenor, 75 
 Iowa 471, 9 Am. St. Rep. 497, 39 N. W. 714, 
 
157 EXECUTION OF. § 184 
 
 levy should be so open and notorious that every one may know 
 of it.' The effect of failure to retain possession after levy will 
 be considered later.* 
 
 § 184. When No Levy Is flecessary. While the officer 
 is in possession and control he cannot, in the nature of things,' 
 make a seizure ; and no new seizure is necessary in such cases. 
 The very act of delivering the process to him to be levied on 
 property in his possession operates as a levy from the time of 
 the delivery, without any act or intention on his part." Though 
 the property be at the time in the actual possession of another 
 person acting as keeper for the officer, no new formal levy is 
 necessary ; but not so, if the property has been returned to the 
 defendant.^ 
 
 § 185. Order of Seizure, Inventory, Appraisement, In- 
 dorsement on Process, Etc. The statutes make numerous re- 
 quirements of the officer in executing the processes ; for exam- 
 ple, that he shall, at the time of receiving them, write down the 
 hour ; that he shall not take realty where there is plenty of chat- 
 tels; that he shall make a written inventory of the property 
 taken; that he shall indorse on the writ a statement that he 
 has made the levy, describing the property taken, etc. Though 
 these things are to be done before or at about the time of mak- 
 ing the levy, they are no part of it. Levies should not be held 
 void because these requirements are disobeyed; and in some 
 cases should not be held even voidable, though they would 
 usually be so.'' 
 
 § 186. Effect of Fraud or Unlawful Act. A levy 
 otherwise valid should be held to be voidable, most courts say 
 void, if it is accomplished by means of any fraud or unlawful 
 act; for no one should be permitted to take advantage of his 
 
 'Adler v. Roth, 5 Fed. Rep. 895, 2 McCrary 447. 
 
 *See post § 204. 
 
 'Pracht V. Pister, cases 175 ; Field v. Macullar, cases 432. 
 
 "Bell V. Shafer, 58 Wis. 223, 16 N. W. 628: Tomlinson v. Collins, 20 
 Conn. 364. 
 
 "Field V. Macullar, cases /iia; Freeman on Executions §§266, 259; and 
 see ante §§ 3I-4S- 
 
§ 187 ATTACHMENTS^ GARNISHMENTS, AND EXECUTIONS. 158 
 
 own wrong, and no lawful thing can stand on an unlawful 
 foundation/ 
 
 Attachment and Garnishment Summonses. 
 
 § 187. The essentials of valid service of summonses on 
 garnishees and defendants in attachment differ in no respect 
 from the essentials of service of any other original process. 
 The one is necessary to get jurisdiction to render a judgment 
 in personam against the defendant ; the other, to render a simi- 
 lar judgment against the garnishee.* Defects in the service 
 which would not be fatal on other processes should not, to my 
 mind, be held fatal in these cases ; but there are decisions which 
 make distinctions on the ground that these proceedings are 
 statutory. Appearance by the defendant without service or 
 after defective service waives the objection; and appearance 
 by the garnishee waives the defect in the service as a summons 
 — several courts say, as an attachment also." 
 
 Notice of the Attachment, Garnishment, or Execution. 
 
 § 188. The notice often required by statute to be given 
 by the of^cer to the defendant or to the person found in posses- 
 sion, to inform him of the levy of the execution or attachment 
 or the service of the garnishment, must not be confounded with 
 the summons spoken of in the preceding section. No such 
 notice is necessary unless the statute requires it ; and failure to 
 give it if required, or when or as required, would seem, on 
 principle, to be a mere irregularity, rendering the levy or service 
 liable to be quashed on proper application by one entitled to 
 complain." But there is a prevalent disposition on the part of 
 the courts, while acknowledging that this would be fhe only 
 
 'Holker v. Hennessey, cases 413; Bailey v. Wright, cases 427. 
 'Compare Pennoyer v. Neflf, cases 48. 
 'Rood on Garnishment § 271. 
 •See ante §§31-45- 
 
159 EXECUTION OF. § 189 
 
 effect in case of executions, to consider this notice jurisdictional 
 in cases of attachment and garnishment, apparently on the 
 ground that these proceedings are statutory.' 
 
 10. LIENS UNDER JUDGMENTS, ATTACHMENTS, 
 GARNISHMENTS AND EXECUTIONS. 
 
 Time When Right Begins. 
 
 § 189. At Common Law. When the statutes passed 
 in the reign of Edward I first made lands liable to execution 
 to satisfy judgments, the courts held that the land was liable 
 on the judgment of a citizen from the time the judgment was 
 rendered, on recognizances and statutes merchant and staple 
 from the day the recognizance or statute was acknowledged, 
 and on the demand of the king from the day when the liability 
 was incurred. These decisions did not depend upon any pro- 
 visions of the statutes.' The courts felt that a lien from these 
 dates respectively was necessary, lest the defendant should 
 defeat the judgment by conveying his property away." The 
 same rule has been adopted by several of the American courts 
 where the writ of elegit was used, and might with equal pro- 
 priety be applied to the use of the fieri facias; but I am not 
 aware of its being so applied in states where no lien is provided 
 for by statute, and in most states a statutory lien is given.^ But 
 the common law judges felt that too great mischief would 
 result from holding the chattels liable to execution from the 
 day the judgment was rendered; and, therefore, they held that 
 
 'Freeman on Executions §§237, 262; Rood on Garnishment §§280-283. 
 'Massingill v. Downs, 48 U. S. (7 How.) 760. 
 
 •Harbert's Case, cases 137; Anonymous, cases 434; Fleetwood's Case, 
 cases 435. 
 
 'Woods V. Mains, cases 436. 
 
§ 190 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS 160 
 
 the plaintiff could have execution only of the chattels which 
 the defendant had the day the execution was sued out, or which 
 he afterwards acquired, and not of those which he had sold 
 between the day on which the judgment was recovered, and 
 the day of execution sued.^ 
 
 § 190. Under the Statute of Frauds. In promul- 
 gating these rules, probably the judges were not thinking of 
 judgments having effect before they were rendered, nor of 
 executions dated back and withheld from the officer. But by 
 a fiction of the common law, all judgments were presumed to 
 have been rendered on the first day of the term, and the lien 
 upon lands dated from that time ; so that a bona fide purchaser 
 might lose his property by the lien of a judgment rendered 
 after his purchase. A practice also obtained of dating back 
 executions to the first day of the last preceding term; and, 
 worse than this, it became customary to take out executions for 
 the purpose of obtaining security, or perhaps of protecting the 
 debtor, without any intention of delivering them to the officer 
 to be executed. By this means chattels were taken from per- 
 sons who had purchased them for value without notice of the 
 judgment, and perhaps a considerable time before it was ren- 
 dered. These evils induced the provisions in the Statute of 
 Frauds, 29 Charles TI. c. 3 §§ 13-16, that the officer signing 
 the judgment record shall put down the exact day of doing so, 
 that the judgment shall be a lien upon the land only from that 
 time, and that no fieri facias or other execution shall bind the 
 goods of the defendant till it is delivered to the officer to be 
 executed. In most of the American states the provisions of 
 this statute with regard to liens upon land are substantially 
 embodied in their statutes ; and in nearly half of the states, as 
 
 'Anonymous, cases 434, 43s ; Fleetwood's Case, cases 435 ; Boucher v. 
 Wiseman, cases 332; Green v. Johnson, cases 447. 
 
161 EXECUTION OF. § 191 
 
 indicated below, the provision with regard to chattels is also 
 followed/ 
 
 § 191. Modern American Rule. Under the Statute 
 of Frauds the defendant might sell his chattels for value to an 
 innocent purchaser after the sheriff had received his writ and 
 before he had done anything to give notice of the lien; from 
 which it will be seen that the statute did not entirely obviate 
 the old evil. In the absence of any statute governing the mat- 
 ter, the supreme court of Iowa held that they could not adopt 
 the old common law rule, which was so unjust that it had to 
 be changed by statute, and that the commercial spirit of our 
 age is so averse to secret liens that they could not recognize any 
 claim by the creditor till the moment of levy.* Similar con- 
 siderations have induced the legislatures in a number of states, 
 and the number is still increasing, to adopt the same rule. Not- 
 able among these, may be mentioned, North Carolina and Ten- 
 nessee, where the old common law rule of liens from the teste of 
 
 'Alabama: "A writ of fieri facias is a lien * * * from the time only 
 that the writ is received by the officer." Code (1896) § 1892; Hamilton v. 
 Phillips, 120 Ala. 177. 
 
 Arkansas: Rev. Stat. (1894) §3048; Davis v. Oswalt, 18 Ark. 414. 
 
 Colorado: Rev. Stat. (1883) §1846; Joslyn v. Spangler, 13 Colo. 491. 
 
 Delaware: Rev. Code (1893), c. iii, §63; Taylor v. Horsey.S Harr. 131. 
 
 Florida: Love v. Williams, 4 Fla. 126. 
 
 Illinois: On executions from courts of record; Kurd's Stat. (1899) 
 c, 77, § i; Hanchett v. Ives, 133 111. 332; on justice court executions; Kurd's 
 Stat. c. 79 I 124. 
 
 Indiana: Thornton's Rev. Stat. (1897) §706; Moss v. Jenkins, 146 Ind. 
 589. 
 
 Kentucky: Stat. (1894 J § 1660; Soaper v. Haward, 85 Ky. 256. 
 
 Maryland: Prentiss P. & S. Co. v. Whitman, 88 Md. 240. 
 
 Mississippi: Lynn v. Gridley, Walker 548. 
 
 Missouri: Rev. Stat. (1899) §3171; Field v. Milburn, 9 Mo. 488. 
 
 New Jersey: 2 Gen. Stat. (1895) p. 1418, §§18-20; James v. Burnet, 
 20 N. J. L. (Spencer) 635. 
 
 New York: Code Civ. Proc. (i8g2) §§1405, 1406; Lambert v. Pauld- 
 ing, 18 Johns. 311. 
 
 Pennsylvania: B. & P. Dig. (1894) p. 839, §63; Wilson's Appeal, go 
 Pa. St. 370. 
 
 Virginia: Code (1887) §3587; Frayser v. Richmond, etc. Co., 81 Va 
 388. 
 
 West Virginia: Code (1891) c. 141, § 2; Hiant v. Kays, 38 W. Va. 681. 
 
 'Reeves v. Sebern, cases 456. 
 i< 
 
§ 192 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 162 
 
 the writ had long prevailed.^ The lien of the execution before 
 levy hks thus been entirely abolished in the states named below." 
 § 192. Attachments and Garnishments. Attach- 
 ment of property, except as a species of distress, was unknown 
 to the common law ; and, therefore, we have no old decisions as 
 to when the lien of an attachment commences. The attach- 
 ment statutes in Arkansas,' Indiana,^ and Kentucky" provide 
 that the lien shall attach from the delivery of the writ; in 
 Pennsylvania it relates to the teste, provided that it shall 
 be defeasable by any bona fide purchase before levy;^ and 
 in Tennessee the attachment in chancery is made a lien from 
 
 "N. Car. Code (1883) §428; Weisenfield v. McLean, 96 N. Car. 248; 
 Stahlman v. Watson, Tenn. Ch. App. (1897), 39 S. W. lOSS ; Anderson v. 
 Taylor, 74 Tenn. (6'Lea) 382. The old common law rule still prevails in 
 Tennessee as to chattels capable of manual seizure. Edwards v. Thompson, 
 85 Tenn. 720. 
 
 'California: "Until a levy property is not affected by the execution;" 
 Code Civ. Proc. (1886) §688. 
 
 Idaho: Rev. Stat. (1887) §4477. 
 
 Iowa: Code (1897) § 3970. 
 
 Kansas: Gen. Stat. (1897), Code Civ. Proc. §454. 
 
 Louisiana: Garland's Code (1894) §722. 
 
 Michigan: Comp. Laws (1897) §§ 10312, 9224; French v. DeBow, 38 
 Mich. 712. 
 
 Minnesota: "Until a levy property * * * Jg not affected by the ex- 
 ecution;" Stat. (1894) §5,449.; Albrecht v. Long, cases 333. 
 
 Montana: "Until levy property is not affected by the execution;" Code 
 Civ Proc. (189s) § 1218. 
 
 Nebraska: Comp. Stat. (1901) §6056. 
 
 Nevada: Comp. Laws (1900) § 3314. 
 
 New Mexico: Comp. Laws (1897) §§3127, 3133. 
 
 North Dakota: Rev. Code (1895) § SSH- 
 
 North Carolina: Code (1883) § 448. 
 
 Ohio: Bates's Stat. (1898) § S37S; Murphy v. Swadener, 33 Ohio St. 85. 
 
 Oklahoma: Code (1893) §4336; Burnham v. Dickson, 5 Okl. 112. 
 
 Oregon: Hill's Laws (1892) Code Civ. Proc. §283, part 5; 17 Ore. 343. 
 
 South Carolina: Rev. Stat. (1894) Code Civ. Proc. §310; Bachman v. 
 Sulzbacher, 5 S. Car. 58. 
 
 South Dakota: Ann. Stat. (1901) §6339. 
 
 Utah: Rev. Stat. (1898) §3240. 
 
 Washington: Bal. Code & Stat. (1897) § 5269, part 5. 
 
 Wisconsin: S. & B. Stat. (1898) §2983; Knox v. Webster, cases .328. 
 
 Wyoming: Rev. Stat. (1899) §3829. 
 
 'Mansf. Dig. §325; Simon v. Adler-Goldman Com. Co. (1892), 56 
 Ark. 292. 
 
 'Thornton's Rev. Stat. (1897), §942; Shirk v. Wilson, 13 Ind. 129. 
 
 "Code Civ. Proc. (1895) § 212. 
 
 'Brightley & Purdey's Dig. (1894) p. 698, §23, 24. 
 
163 EXECUTION OF. § 192 
 
 the filing of the bill." Some of the statutes expressly pro- 
 vide that the lien shall date from the levy;' but the most 
 of them contain no provision concerning it ; and where such is 
 the case it has been universally held that the attachment creates 
 a lien from the time the goods are actually levied,* and not 
 before,^ even by courts that had held in the absence of con- 
 trolling statutes that an execution creates a lien from the time 
 it is issued," or from the time the officer received it.' So, also, 
 garnishment is held to create a lien upon the property in the 
 hands of the garnishee from the date of the service of the writ 
 upon him," and not before.* 
 
 "Code §3507; Sharp v. Hunter, 47 Tenn. (7 Cald.) 389. 
 
 'Alabama: Code (1896) §548; Bamberger v. Voorhees, 99 Ala. 292. 
 
 Arizona: Rev. Stat. (1897), Attachment §67, Garnishment §81. 
 
 Georgia: Code (1895) §4578; Silvey v. Phoenix, 94 Ga. 609. 
 
 Iowa: Code (1897) § 3898, land from filing the abstract § 3899. 
 
 Michigan: Corap. Laws (1897), Attachment §§10563, 10564; Garnish- 
 ment § 991 ; on land from filing abstract, Davis Sewing M. Co. v. Whitney, 
 61 Mich. 518; not good against equitable titles, French v. DeBow, 38 Mich. 
 712. 
 
 Missouri: Rev. Stat. (1899) §388, as to land from filing abstract; Stan- 
 ton V. Boschert, 104 Mo. 393. 
 
 New Jersey: Gen. Stat. .(1895), as to chattels, p. loi, § 17. 
 
 North Dakota: Rev. Code (1895) §5362. 
 
 Ohio: Bates's Stat. (1898) §6512. 
 
 South Carolina: Rev. Stat. (1893') §2493. 
 
 Virginia: Code (1897) §2971. 
 
 *Pond V. Griffin, i Ala. 678; Martin v. Dryden, 6 111. (i Gil.) 187; 
 Coffin V. Ray, 42 Mass. (i Mete.) 212; Redus v. Wofford, 12 Miss. (4 S. 
 & M.) 579, 592; Shacklett's Appeal, 14 Pa. St. 326; Vinson v. Huddleston, 
 3 Tenn. (Cooke) 254; Riordan v. Britton, 69 Texas 198. 
 
 'Tafifts V. Manlove, 14 Cal. 47, 73 Am. Dec. 610; Kuhn v. Graves, 9 
 Iowa 303; May v. Buckhannon R. L. Co., 70 Md. 448; Burkhardt v. 
 Sanford, 7 How. Pr. (N. Y. Sup.) 329; Morehead v. Western N. C. R. 
 Co., 96 N. Car. 362; Poling v. Flanagan, 41 W. Va. 191, 23 S. E. 685. 
 
 •Morehead v. Western N. C. R. Co., 96 N. Car. 362. 
 
 'May V. Buckhannon R. L. Co., 70 Md. 448. 
 
 'Aderholt v. Smith, 83 Ala. 486, 3 South. 794; Raventas v. Green, 57 
 Cal. 254 ; Shaver W. & C. Co. v. Ha:isted, 78 Iowa 730, 43 N. W. 623 ; Allen 
 V. Hall, cases 140; Northfield Knife Co. v. Sharpleigh, 24 Neb. 635, 39 N. 
 W. 788; Barton v. Spencer, 3 Okl. 270, 41 Pac. 60s; Carter v. Koshland, 
 13 Ore. 615, 12 Pac. 58; Focke v. Blum, 82 Texas 436, 17 S. W. 770; 
 Erskine v. Staley, cases 458 ; Maxwell v. Bank of New Richmond, loi Wis. 
 286, 77 N. W. 149; Contra, Bigelow v. Andress, 31 111. 322. 
 
 •Fisher v. Hall, 44 Mich. 494, 7 N. W. 72. 
 
§ 193 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 164 
 
 Nature of the Lien or Right. 
 
 § 193. Against the Officer. For any breach of his 
 duty, the officer is liable to the plaintiff in an action against him 
 as an individual, in an action on his official bond, and by sum- 
 mary proceedings in the court and cause in which the wrong 
 was committed. The nature of the creditor's right has already 
 been sufficiently discussed in considering his right to control 
 the processes, and in speaking of the liability of the officer ; and 
 what was then said need not be here repeated.^ 
 
 § 194. In the Property. Before Levy. A judgment 
 lien on land is superior to an execution lien on chattels, in that 
 it is not cut off by a levy and sale under a junior judgment.^ 
 The creditor's lien on chattels before levy, where such a lien 
 is allowed, is not an interest in any specific property of the 
 debtor ; but merely a right to have it taken to satisfy the judg- 
 ment. For example, the legislature may exempt the property 
 by a law passed after the officer receives the process;''' or the 
 defendant may acquire the benefit of the statute by marrying 
 during that time.* Again, if the officer fails to levy before 
 the return day the lien expires f and it is liable to be defeated 
 before that time by a levy under a junior process from another 
 court,^ but not by a prior levy by the same officer or his deputy 
 under a junior process from the same court.' Again, he can- 
 not maintain a suit in equity to require third persons to deliver 
 property to the sheriff to be levied on under his process,^ nor 
 at law to recover damages for concealing or injuring property 
 which he might have levied upon.' His right to maintain an 
 
 'See ante § 157. 
 
 'Kirk V. Vonberg, 34 111. 440. 
 
 •Horton v. McCall, 66 N. Car. 159; Ladd v. Adams, same 164. But see: 
 Edwards v. Kearzey, cases 299; Massingill v. Downs, 48 U. S. (7 How.) 
 760. 
 
 'Watson V. Simpson, 5 Ala. 233. 
 
 'See ante § 163. 
 
 "Pulliam V. Osborne, cases 454. Compare Green v. Johnson, cases 447. 
 
 'Kennon v. Ficklin, cases 451; Richards v. Morris C. & B. Co., cases 
 453- 
 
 'Skinner v. Stuart, 39 Barb. Sup. 206. 
 
 •Wellington v. Small, 57 Mass. (3 Cush.) 145; Lamb v. Stone, 28 Mass. 
 (11 Pick.) 527. 
 
165 EXECUTION OF. § 195 
 
 action against the defendant and others at law for a conspiracy 
 to defraud him by keeping the property beyond his reach, ^ or 
 in equity to set aside a fraudulent conveyance^ have been denied 
 on this ground; but no lien is necessary to maintain such ac- 
 tions, and they should be sustained. His right to have the 
 property taken, if it can be found, is not defeated by a sale for 
 value to an innocent purchaser,^ by the death of the defendant," 
 by his becoming a bankrupt,' nor by a removal of the property 
 to another county and sale by the defendant to an innocent pur- 
 chaser," or levy under the writ of another creditor there,^ pro- 
 vided the property is returned and levied before the return day 
 or a testatum fieri facias is issued to the other county and levy 
 made thereunder. 
 
 § 195. After Levy. The levy does not divest the defend- 
 ant of his title ; he may sell or mortgage as before.* The judg- 
 ment lien on land does not unite with the lien of the execution 
 or levy. A person who buys land subject to the judgment lien 
 but before the lien of the execution attaches, gets title free from 
 the claim of the creditor if the judgment lien expires before the 
 sheriff's sale, though it had not expired before the levy.* Yet 
 the judgment lien on land and the lien of a levy on chattels are 
 very similar. The creditor who loses thereby may maintain 
 an action on the case against anyone who injures the land on 
 
 'Findlay v. McAllister, 113 U. S. 104; Finney v. Harding, 136 111. 573, 
 27 N. E. 289; Quinby v. Strauss, 90 N. Y. 664; Kerr on Fraud and Mis- 
 take, *20I. 
 
 ^Hendricks v. Robinson (per Chancellor Kent), 2 Johns. Ch. 283, 
 affirmed without opinion in 17 Johns. 438; Pettus v. Smith, 4 Rich. Eq. 
 (S. Car.) 197. 
 
 'Anonymous, cases 435 ; Boucher v. Wiseman, cases 332. 
 'Parsons v. Gill, cases 189. 
 'Savage v. Best, 44 U. S. (3 How.) in. 
 
 "Mitchell V. Ashby, 78 Ky. 254; Street v. Duncan, 117 Ala. 571. 
 'Hill V. Slaughter, 7 Ala. 632; Lambert v. Paulding, 18 Johns. (N. Y.) 
 311- 
 
 'Bigelow V. Willson, 18 Mass. (i Pick.) 485. 
 
 'Wells V. Bower, 126 Ind. 115, 22 Am. St. Rep. 570, 25 N. E. 603. 
 
§ 195 ATTACl-IMENTS, GARNISHMENTS, AND EXECUTIONS. 166 
 
 which he has a judgment lien or lien by levy;^ a garnishing 
 creditor may maintain a similar action against anyone who 
 interferes with the defendant's property in the garnishee's pos- 
 session ;" and an attaching or execution creditor may maintain 
 a similar action for such injury whenever he has no other 
 remedy.^ There are several decisions in which such actions 
 were dismissed on the ground that the plaintiff's only remedy 
 was against the officer, and only the officer acquired an 
 interest by the levy;* or on the ground that the creditor's 
 remedy against the officer was exclusive wherever he had 
 a remedy against the officer;' or on the ground that the 
 plaintiff had not shown that there was not sufficient other 
 property to satisfy his claim." Probably these courts would 
 agree with the decisions holding that after purchasing at the 
 sale he may sue in trover for a conversion before the sale.' 
 But there are other cases in which actions by the creditor at law 
 and in equity have been sustained against third persons inter- 
 fering with the property in the officer's possession, although 
 the creditor had a right of action against the officer f and these 
 last mentioned decisions seem to me correct. Of course, a 
 creditor having a lien by levy could not maintain trespass, 
 trover, or replevin against anyone for interference with the 
 property, for he has no right of possession. ° If the creditor 
 
 'Yates V. Joyce, ii Johns. (N. Y.) 136. 
 ^Erskine v. Staley, cases 458. 
 "Adams v. Paige, 24 Mass. (7 Pick.) S42- 
 ■"North V. Ladd, 2 Mass. 514; Foulks v. Pegg, 6 Nev. 136. 
 'Kelly V. McCaw, 29 Ala. 227; Barker v. Mathews, I Denio 335. 
 'Marsh v. White, 3 Barb. Sup. (N. Y.) 518. Overruled by Quinby v. 
 Strauss, 90 N. Y. 665. 
 
 'Baker v. Beers, 64 N. Hamp. 102, 6 Atl. 35. 
 
 'Field V. MacuUar, cases 432, and cases there cited; Rowland v. Wil- 
 letts, 9 N. Y. 170; ShuU v. Barton, 58 Neb. 741, 79 N. W. 732; Freeman on 
 Executions, § 268. 
 
 "Goddard v. Perkins, 9 N. Hamp. 488; Blake v. Shaw, 7 Mass. 505; 
 Schaeffer v. Marienthal, 17 Ohio St. 184. 
 
167 EXECUTION OF. § 196 
 
 would rather have the property itself or its proceeds than look 
 to the sheriff or third persons, he may have it retaken after the 
 officer has abandoned it, provided he can get it before it is 
 encumbered or levied upon under another process/ If the same 
 officer has sold it under a junior process he may have the pro- 
 ceeds paid over to him on motion to the court before they are 
 paid out,^ or sue the junior creditor for them after they are 
 paid;^ but he cannot take the property from the purchaser at 
 the sale under the junior vjrrit, for that would destroy tht faith 
 in sheriff's sales.* 
 
 II. HOW LIEN LOST AFTER LEVY. 
 
 By Order of Court in Proceedings to Try. 
 
 § 196. Jurisdiction. Independent of any statute, from 
 the necessity of the case, every court has jurisdiction to quash 
 any garnishment, attachment, execution, or other proceeding, 
 pending before it, either before or after the levy or service has 
 been made ;° and no other court has any right to do so," except 
 as a court of review. The power of the judge to quash writs 
 and levies during vacation is very doubtful, to saiy the least,^ 
 unless given by express statute, as it usually is with reference 
 to attachments. Many statutes empower court commissioners 
 or the court's clerk to quash attachments during vacation when 
 the judge is absent. 
 
 'Erskine v. Staley, cases 458, and notes. 
 
 ''Kennon v. Ficklin, cases 451; Richards v. Morris C. & B. Co., cases 
 4S3- 
 
 'Field V. Macullar, cases 432, and cases cited. 
 
 *Smallcomb v. Cross, cases 445. 
 
 'Commonwealth v. Magee, cases 307; Chase v. DeWolf, 69 111. 47; 
 Bailey v. Hester, loi N. Car. 538. 
 
 'Scrutchfield v. Sauter, 119 Mo. 615, 24 S. W. 137; Arthurs v. ViUere, 
 43 La. An. 414, 9 South 126. Equity courts give relief by injunction in 
 certain cases where there is no remedy at law. Emerson v. Detroit S. & S. 
 Co., cases 168. 
 
 'Commonwealth v. Magee, cases 307 notes. 
 
§ 197 ATTACHMENTS^ GARNISHMENTS^ AND EXECUTIONS. 168 
 
 § 197. Who May Complain. The plaintiff certainly 
 has standing to invoke the court's action to quash his process 
 and levy, though he seldom asks the favor. The defendant 
 is equally entitled, and is usually the party moving for 
 such action. In the absence of statutory provision, strang- 
 ers claiming to own tangible property levied upon are 
 generally considered to have no standing to invoke any action 
 in the proceedings, and as having a sufficient remedy by re- 
 plevin* trespass, and trover for the property or its value. Stat- 
 utes usually provide that any claimant may intervene, and 
 where such is not the case persons interested in the property 
 as other creditors of the same debtor having liens upon it will 
 usually be admitted.* But there are several courts in which 
 the right has been denied. They say, "Courts of justice are 
 not open, like tournaments, for errant knights to enter and tilt 
 at pleasure."' 
 
 § 198. Procedure. A bill in chancery for an injunc- 
 tion, and proceedings in a court of review on error, mandamus, 
 certiorari, and prohibition, are not generally appropriate nor 
 available if there is a remedy in the court that issued the proc- 
 ess. Proceedings by audita querela in the same court was the 
 remedy forrtierly employed to obtain relief from unjust levies; 
 and this may still be used, no doubt, if not abolished by statute. 
 But a simple motion, in the same court and cause, with reason- 
 able notice to the other persons interested, is so much cheaper, 
 easier to prosecute, and more expeditious, that it is almost the 
 only procedure now in use; except where a special procedure 
 is provided for by statute, as to which the statutes of the state 
 should be consulted.'' 
 
 § 199. Grounds. Classified. The court may order the 
 process or levy quashed or adjudge the lien subordinate: i, 
 
 "Freeman on Executions § 75; Drake on Attachment §§ 272 et seq., 419; 
 Rood on Garnishment, § 33S ; Hawes v. Clement, cases 159. 
 
 "Porter v. West, 64 Miss. 548, 8 South. 207 ; Rood on Garnishment § 335. 
 'See Hawes v. Clement, cases 159 ; Wade on Attachment § 276. 
 
169 EXECUTION OF. § 200 
 
 because it is absolutely void, and this objection is available to 
 anyone in any form of procedure ; 2, because the rights of other 
 persons require it to be quashed or made subordinate, though 
 it be not void. 
 
 § 200. Available to Defendants. The defendant may 
 have the process or levy quashed because of any irregularity 
 not amendable nor waived — for example, that the affidavit, 
 "bond, or process was too early or too late, not executed or 
 improperly executed, or did not contain all of the essential 
 parts ;" or because the' facts alleged to obtain the attachment 
 did not exist — for example, that the defendant had absconded, 
 was a non-resident, or fraudulently contracted the debt sued 
 for;" or because the cause of action had been extinguished 
 since the attachment was issued, or the judgment on which the 
 execution issued had been satisfied, either before or after the 
 process issued.* Or, admitting that the preliminary require- 
 ments were observed and that the process is regular, he may 
 have the levy quashed, because of any fraud or illegal act in 
 ■effecting the levy, and for many irregularities ; or because the 
 property is exempt. But he cannot object that the property 
 belongs to another, and is being used to pay his debts; that 
 is his good fortune.^ He will not be allowed to deny that he 
 owes the debt for which the attachment issued, for that would 
 require a trial of the merits of the action.^ He cannot urge 
 that the judgment on which the execution issued is incorrect, 
 for he has had one day in court on that question.' 
 
 § 201. Available to Claimants and Garnishees. Claim- 
 ants who intervene may have the process or levy quashed if it is 
 absolutely void, or upon allegation and proof that it is being 
 
 "Drake on Attachment § 414 et seq. ; Wade on Attachment § 284 et seq. 
 
 "Wade on Attachment § 277 et seq. ; Attachment §§ 788, 789, Century 
 Digest, Vol. 5. 
 
 'Wills V. Chandler, cases 186; Adams v. Smallwood, cases 199. 
 
 "Burnham v. Ramge, 47 Neb. 175, 66 N. W. 277. But see McDougall 
 V. Lamb, 113 Mich. 69, 71 N. W. 458. 
 
 "Drake on Attachment § 418 ; Hawes v. Clement, cases 159. 
 
 'See ante § 72. 
 
§ 202 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 170 
 
 used as an instrument to defraud them as creditors of the same 
 debtor. But they will not be permitted to litigate matters 
 between themselves, show that the defendant does not owe the 
 amount claimed of him by the plaintiffs, take advantage of any 
 irregularities in the proceedings, nor show that the property 
 attached does not belong to the defendant. The issue is 
 whether the property belongs to them, not whether it belongs 
 to the defendant." The court will protect any interest, legal 
 or equitable, which they prove belongs to them." While a 
 garnishee may show that the property does not belong to the 
 defendant, and may take advantage of jurisdictional defects 
 in the principal action, he can object to no irregularities except 
 those in the proceedings against himself.^ 
 
 Matters Which Abate the Lien. 
 
 §202. Abandonment. By Election of Remedies. 
 When a creditor has an election between several remedies with- 
 out a right to pursue more than one his choice of any one is an 
 abandonment of any rights he might have under the others. 
 Thus, when a man having a judgment lien on land sues out a 
 capias and imprisons the defendant under it, and afterwards 
 obtains recourse against the land by the release of the debtor, 
 he takes it subject to all rights acquired during the interval.'' 
 But when a creditor may proceed under several processes at the 
 same time his action imder any one does not disparage his 
 right to proceed subsequently under any other f and a levy on 
 certain property by the officer, even at the direction of the 
 creditor, is not an abandonment of the lien which the delivery 
 of the writ to him created on any other property necessary to 
 satisfy it. A subsequent levy on the other property during 
 
 'Markley v. Keeney, 87 Iowa 398, 54 N. W. 251 ; Gilkeson v. Bond, 44 
 La. An. 841, 11 South 220; Wade on Attachment § 220; Rood on Garnish- 
 ment §§ 342-344. 
 
 °Rood on Garnishment § 349. 
 
 'Rood on Garnishment S 226. 
 
 "Rockhill V. Hanna, cases 470. 
 
 'Spring V. Ayer, cases 197 ; Sutton v. Hasey, cases 198. 
 
171 EXECUTION OF. § 203 
 
 the life of the writ will overreach all rights acquired after the 
 lien commenced.* 
 
 § 203. By Dropping the Proceedings. No doubt the 
 lien should be. as it has often been, held to be abated by settle- 
 ment and abandonment of proceedings without completing 
 them," or by appropriating the property levied on-and abandon- 
 ing without settlement." Returning the process, taking out 
 another, and making a levy under it on other property have 
 been held not to show an abandonment;' and when the new 
 levy is on the same property the whole proceedings under the 
 second process may be treated as mere surplussage and the 
 sale sustairied as if made under the first.* 
 
 § 204. By Surrendering Possession. If the officer or 
 garnishee abandons without the plaintiff's knowledge or con- 
 sent he is entitled to have the property retaken,'' but the rights 
 of innocent persons acquired during the interval will be pro- 
 tected.^ There are a great many cases in which it is stated 
 in broad terms that the retention of possession is essential to 
 the continuance of thq lien ; but most of these are cases in which 
 the rights of other persons have intervened, and the great ma- 
 jority of the cases hold that the lien is not lost by the officer's 
 leaving the property in the possession of the defendant.^ 
 
 § 205. Laches and Abuse of Process. Mere delay in 
 prosecuting is not an abandonment; but from it the court or 
 jury may find an intention to abandon, and very slight delay 
 
 'Moses V. Thomas, 26 N. J. L. 124; Schuylkill County's App., 30 Pa. 
 St. 358; Stewarts V. Reynolds, 4 Harr. (Del.) 112; Trapnall v. Richardson, 
 13 Ark. 543, 58 Am. Dec. 338, modifying Anderson v. Fowler, 8 Ark. 
 (3 Eng.) 388. Contra, Lessee of Walpole v. Ink, 9 Ohio 142. 
 
 'Wilder v. Weatherhead, cases 484. 
 
 "Allen V. Hall, cases 140. 
 
 'Friyer v. McNaughton, no Mich. 23. 
 
 'Evans v. Barnes, cases 468. 
 
 'Erskine v. Staley, cases 458 ; Field v. MacuUar, cases 432 ; Smith v. 
 Osgood, cases 318; Banks v. Evans, 10 Sm. & M. (Miss.) 35, 48 Am. Dec. 
 734- 
 
 'Otey V. Moore, 17 Ala. 280, 52 Am. Dec. 173; Commonwealth v. Cont- 
 ner, 18 Pa. St. 439; McGarry v. Lewis Coal Co., 93 Mo. 237, 6 S. W. 81. 
 
 ^Conn V. Caldwell, cases 425; Acton v. Knowles, cases 464; Drake on 
 Attachment § 290 et seq. ; Freeman on Executions § 261. 
 
§ 206 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 172 
 
 has often been adjudged such an abuse of process as will en- 
 title a junior creditor to priority. No delay by the officer 
 without the plaintifif's authority or knowledge will have this 
 effect; but an unreasonable delay will justify the jury in find- 
 ing knowledge and sanction by the creditor.^ 
 
 § 206. Failure of the Action or Judgment. The 
 lien by garnishment is abated by the death of the garnishee 
 before judgment against him or by the death of the defendant 
 before judgment against him unless the statute provides other- 
 wise; and the same is true of attachment. But the lien of an 
 execution levied is unaffected by the death of either party.* 
 Cases are numerous in which the lien has been held to be abated 
 by departures fi'om the prescribed procedure, but this question 
 has been sufficiently discussed already." A judgment and the 
 lien of the execution thereon may be allowed to subsist while 
 the judgment is opened to try a special defense ;" and an appeal, 
 motion for a new trial, and the like, would have no effect on 
 the execution or lien. But if the judgment be absolutely set 
 aside the foundation of the execution is gone, and it must fall; 
 and with it, the lien.' So if the execution be set aside. Like- 
 wise, if judgment be given for the defendant in any action, all 
 attachments and garnishments pending thereon must fall unless 
 saved by a proper appeal.^ 
 
 § 207. Substitute Bond. The cases are not agreed as 
 to whether the lien of the levj- is divested by the defendant 
 giving a bond to obtain a release, replevin, appeal, new trial, 
 injunction, or stay of proceedings ; but it is substantially agreed 
 that no such effect would follow the giving of any bond by a 
 claimant." 
 
 'Acton V. Knowles, cases 464. 
 *See ante § 119. 
 
 "See ante §§ 134, 140; and post §§211, 212. 
 
 'Richards v. Morris C. & B. Co., cases 453 ; Reid v. Lindsey, cases 479. 
 'Notes to Reid v. Lindsey, cases 482. 
 'Erickson v. Duluth, S. S. & A. Ry. Co., cases 473. 
 'Rocco V. Parczyk, cases 477 ; Reid v. Lindsey, cases 479 ; Hagan v. 
 Lucas, cases 418. 
 
173 EXECUTION OF. § 208 
 
 12. FORECLOSURE OF THE LIEN- 
 
 Of What it Consists. 
 
 § 2o8. In Attachment and Garnishment. The lien 
 which the creditor acquires by an attachment levy can be fore- 
 closed only by prosecuting the action against the defendant to 
 judgment, and having the property sold on an order to sell or 
 execution issued on that judgment. We need not consider the 
 steps required to obtain a judgment, since they are the same 
 in such cases as in other actions. Likewise, the lien acquired 
 on property by garnishment can be perfected only by prose- 
 cuting the principal action to judgment if that' has not already 
 been done, and by prosecuting the garnishment to judgment 
 against the garnishee. When the garnishee is charged as 
 bailee, that is, for specific tangible property in his possession, 
 it is also necessary to take out execution, levy it on the prop- 
 erty, and proceed to sale as in other cases; or, if the garnishee 
 fails to produce the property on demand, to levy upon and sell 
 any of his executionable property to an equal amoupt. But 
 when the garnishee is charged as debtor he may safely pay the 
 money into court or to the plaintiff as soon as the judgment 
 is rendered and recorded against him, without waiting for 
 execution to issue.^ 
 
 § 209. Proceedings in Garnishment from Summons 
 TO Judgment. The summons to the garnishee gives him a 
 certain time, named therein or in the statute, until which he 
 is not liable to default for not answering. Under some stat- 
 utes his answer is a mere formal pleading ; but under most stat- 
 utes the plaintiff is entitled to a personal examination, on oral 
 interrogatories, in open court, either in the first instance or 
 upon an unsatisfactory answer being made." If the garnishee 
 be a corporation the plaintiff is entitled to an answer by some 
 agent having knowledge of the facts. If the plaintiff is satis- 
 fied with the answer he may allow the cause to be continued 
 
 ^Barber v. Howd, 85 Mich. 221 ; Rood on Garnishment § 2og. 
 'See Graighle v. Notnagle, cases 234. 
 
§ 210 ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS. 174 
 
 till he is ready to take judgment, being careful not to entitle 
 the garnishee to have it dismissed for laches. "^ But if the gar- 
 nishee has not confessed liability the plaintiff must join issue 
 on the answer or file a supplemental complaint, according to 
 the practice, bring the issue to trial, and adduce such evidence 
 as would prove liability in an action by the defendant against 
 the garnishee ; or the garnishee will be entitled to a discharge. 
 The trial of this issue is conducted very much the same as other 
 trials.* 
 
 § 2IO. Conduct of Execution Sales. The statutes 
 usually specify with considerable particularity: i, what notice 
 of the sale shall be given — for how long, in what language and 
 publication, where posted, who personally notified, etc. ; 2, 
 where and when the sale shall be held — on the premises, at the 
 county seat, on a business day, between nine a.m. and six p.m., 
 etc. ; 3, how the sale shall be conducted — personalty offered 
 before realty, at auction, to the highest bidder, for cash, in par- 
 cels, within view of the property, after clearly pointing it out, 
 etc. ; 4, what the officer shall do after the sale — in disposing' of 
 the proceeds, in giving evidence of title to the purchaser, in 
 making report of his doings to the court, etc. Obviously it 
 would be out of place to attempt a discussion of each of these 
 requirements at length in a treatise of this kind. The require- 
 ments are quite different in different states and the student is 
 referred to the statutes. To the statutory requirements the 
 courts have added others ; for example, that the officer shall not 
 directly or indirectly buy at the sale, that he must be otherwise 
 competent as hereinbefore indicated, etc. 
 
 Effect of Defects. 
 
 § 211. Without attempting to speak of each of the re- 
 quirements in detail, it may be said, that if the property is sim- 
 ply handed over to the creditor without a sale, or the garnish- 
 
 °See Webber v. Bolte, cases 390. 
 
 "Hewitt V. Wager Lumber Co., cases 403. On all the matters in this 
 section see Rood on Garnishment §§ 352-382. 
 
175 EXfeCUTION OF. § 212 
 
 merit is dropped on payment by the garnishee to the creditor 
 without the garnishment being carried to judgment, the title 
 of the defendant is not divested, and the creditor acquires none 
 of which lie can avail himself even on collateral attack." On 
 the other hand, it seems pretty clear that the proceedings are 
 not liable to collateral attack because of any irregularities in 
 them. If the officer has sold without the proper notice, at an 
 improper time or place, en masse, on credit, or the like, he may 
 be liable to an action by anyone injured who has not waived 
 his right to sue ; and, on that ground, the sale would be set aside 
 on a proper application by anyone prejudiced by the default. 
 But it is not liable to colla.teral attack." The sheriff's deed is 
 not void because it misdescribes the judgment, or does not 
 describe it at all.' 
 
 The Officer's Return. 
 
 8 212. The purchaser's title does not depend on the officer 
 making a true return or any return at all, nor on his accounting 
 for the proceeds.* The officer's return is his report to the court 
 of his doings under the process ; and should be in writing, on 
 the back of the process or on some paper attached thereto, 
 dated, and signed; and should state in detail just what the offi- 
 cer has (ione, and not merely that he has executed the process 
 according to law. A return is never too late to be valid;" but 
 the officer is liable to amercement by the court, or an action 
 for damages by the party injured, if he fails to return it on or 
 before the return day.^ The return may be amended by the 
 officer without consent of the court at any time before the offi- 
 cer surrenders possession of it; but afterwards, only on special 
 order.'' 
 
 "Allen V, Hall, cases 140J Wilder v. Weatherhead, cases 484. 
 
 "Cavanaugh v. Jakeway, cases 487 ; Conley v. Redwine, 109 Ga. 640, 77 
 Am. St. 398 ; Herman on Executions § 342 ; Freeman on Executions § 339. 
 
 'Hill V. Reynolds, 93 Me. 25, 44 Atl. 135, 74 Am. St. Rep. 329. 
 
 'Herman on Executions §343; Freeman on Executions §341. 
 
 'Smith V. Osgood, cases 318; Rowe v. Hardy, 97 Va. 674, 75 Am. St. 
 811. 
 
 'Burk V. Campbell, cases 343 ; McGregor v. Brown, cases 342. 
 
 ''Nelson v. Cook. 19 111. 440. 
 
B, WHAT CONSTITUTES A SATISFACTION. 
 
 Review and Prospect, § 213. 
 
 By the Use of the Processes, § 214. 
 
 By Setting Off Other Judgments, § 215. 
 
 By Recovering Another Judgment, § 216. 
 
 By Lapse of Time, S 217. 
 
 By Payment, §§ 218-220. 
 
 Review and Prospect. 
 
 § 213. The principal questions that arise in the use of 
 the processes to enforce satisfaction of j'udgments, from the 
 issuance of the process to its final return, have now been taken 
 up and treated with as much fullness, and as nearly in the order 
 in which they would naturally arise, as our plan of treatment 
 would permit. What remains to be said under the head of 
 satisfaction of judgments may be considered under the follow- 
 ing titles: I, by use of the court's processes; 2, by setting off 
 against other judgments; 3, by recovering another judgment; 
 4, by lapse of time ; 5, by payment. Of these in their order. 
 
 a 
 By the Use of the Processes. 
 
 § 214. Any satisfaction of the judgment by use of the 
 court's processes without actually realizing the amount is only 
 conditional at most ; and this question has been sufficiently con- 
 sidered already.' Conceding that arresting the defendant on 
 ca. sa. and releasing him, or seizing his pi^operty on ft. fa. and 
 releasing it, would operate as a satisfaction of the judgment 
 (and there are several decisions denying the last part of the 
 proposition), no such result would follow from surrendering 
 priority in favor of a junior creditor." Though such action 
 
 'Ante § 120; cases pp. 195-217; Cooper v. Bigalow, cases 488. 
 ^Bank of Pennsylvania v. Winger, cases 499. 
 
177 SATISFACTION OF JUDGMENTS. § 215 
 
 would release a surety, and would entitle a person having an 
 intermediate lien to priority; even these results would not be 
 produced by the court erroneously decreeing priority to the 
 junior creditor, and the senior creditor acquiescing therein." 
 
 By Setting off Against Other Judgments. 
 
 § 215. In the absence of statutes touching the matter, 
 courts have such power over their judgments that they can 
 •order one set off against another. When a person desires a 
 judgment in his favor credited on a judgment against him he 
 must apply to the court in which the judgment stands against 
 him, for no other court could enter satisfaction on it. In suck 
 -cases the court will order satisfaction entered upon condition 
 that satisfaction to an equal amount be entered on the other 
 judgment.- The rules as to mutuality of parties are much the 
 same as upon setting off other demands.* 
 
 By Recovering Another Judgment. 
 
 § 216. That the judgment cannot be used after a judg- 
 ment has been recovered on it, we have already seen with the 
 reason." Recovery of judgment against one of several per- 
 sons jointly and severally liable does not satisfy a judgment 
 previously recovered against another of them. But satisfac- 
 tion of one of such judgments, in whole or in part, whether it 
 be the largest or the smallest, satisfies all in the same propor- 
 tion." 
 
 By Lapse of Time. 
 
 § 217. At common law, no action could be maintained 
 on a judgment over twenty years old without proving that it 
 
 'Hamilton v. Mooney, cases S02. 
 
 *Cooper V, Bigalow, cases 488 ; Freeman on Judgments § 467a ; Black on 
 Judgments §§ 1000-1005. 
 
 "See ante §73. 
 
 •First National Bank v. Indianapolis P. N. Co., 45 Ind. 5 ; Knapp v. 
 Roche, 94 N. Y. 329; Sherman v. Brett. 7 Wis. 139. 
 
§ 218 SATISFACTION OF JUDGMENTS. 178 
 
 had not been paid ; which might be shown by recent acknowl- 
 edgements of it, payments on it, etc. A lapse of less time 
 would sustain a finding of payment. In this country, some 
 states have adopted the common law rule by statute; while 
 others have shortened the time, and reqviired the acknowledge- 
 ments to be in writing.^ 
 
 By Payment. 
 
 § 218. To Whom. If the debtor is given no directions 
 to the contrary by the owner of the judgment it is satisfied to 
 the amount paid by a payment to any of the joint creditors;* 
 to the attorney who recovered the judgment ;" to an officer hav- 
 ing process to collect the judgment not yet returnable, or on 
 which a levy was made before the return day and remains 
 undisposed of ;'■ or to the court's clerk while authorized by stat- 
 ute." And in all of these cases it does not matter that the 
 money so paid is never accounted for to the owner of the judg- 
 ment. But payment does not satisfy in the absence of express 
 authority to receive it when it is made to an officer who has no 
 process on the judgment, or who has process past due on which 
 no levy has been made,' or whose process was issued on the 
 order of the party making payment and without authority from 
 the crechtor ;* nor when made to the clerk while execution is in 
 the hands of the sheriff or before the judgment was rendered;* 
 nor \\hen made to anyone but the real owner of the judgment 
 if he has notified the debtor to pay no one else. For example, 
 the real owner may recover notwithstanding payment to the 
 
 'Black on Judgments, §§992-994; Freeman on Judgments §§464-465. 
 
 'Erwin v. Rutherford, 9 Tenn. (i Yerger) 169. 
 
 'McCarver v. Nealey, cases 497. 
 
 'Beard v. Millikan, 68 Ind. 231. 
 
 'Bynum v. Barefoot, 75 N. Car. 576. 
 
 'Wyer v. Andrews, 13 Me. 168, 29 Am. Dec. 497; Harris v. Ellis, 30 
 Tex. 4, 94 Am. Dec. 296. 
 ' 'Osgood V. Brown, cases 499. 
 
 'Governor v. Read, 38 Ala. 252 ; Hawkeye Ins. Co. v. Luckow, 76 
 Iowa 21, 39 N. W. 923. 
 
179 SATISFACTION OF JUDGMENTS. § 219 
 
 nominal plaintiff ;" and a person having a lien on the judgment 
 as attorney or otherwise,' or to whom a part interest in the 
 judgment has been assigned,* may recover notwithstanding a 
 payment to the judgment creditor, provided the debtor has 
 been notified not to make such payment. 
 
 § 219. Medium and Amount. Neither the attorney" 
 the clerk of the court, '^ nor the officer executing the process^ 
 can receive anything other than money in payment, nor give 
 satisfaction for more than the amount actually received,^ unless 
 such action is specially authorized or afterwards ratified by the 
 owner of the judgment. When these agents have received 
 something other than money, either as payment or to be con- 
 verted into money and applied, it has been held that in doing 
 so they acted as agents for the debtors ; and that if they convert 
 into money but do not account for it, it is no payment, and the 
 creditor is entitled to a new execution or to sue over.* Of 
 course, the creditor may bind himself by receiving anything in 
 payment which satisfies him ; but the courts are not agreed as to 
 whether he is bound by a satisfaction in full of an absolute 
 judgment in consideration of a payment, in money, of a part 
 of it, by the defendant.'^ 
 
 § 220. Whose Payment Satisfies — Assignment and 
 Subrogation. Payment of the amount of the judgment, by a 
 stranger, on executing an assignment of the judgment to the 
 latter, does not satisfy it: and the assignee is entitled to exe- 
 
 'Triplett v. Scott, 12 111. 137. 
 
 'Andrews v. Morse, cases 224. 
 
 'Line v. McCall, — Mich. , 85 N. W. 1089 ; Railway Co. v. Volkert, 
 
 58 Ohio St. 362, SO N. E. 924; Contra, Burnett v. Crandall, 63 Mo. 410; 
 and see: Hopkins v. Stockdale, 117 Pa. St. 365. 
 
 'McCarver v. Nealey, cases 497. 
 
 'Aicardi v. Robbins, 41 Ala. 541, 94 Am, Dec. 614. 
 
 'Dibble V. Briggs, 28 111. 48. 
 
 'Jewett V. Wadleigh, 32 Me. no. 
 
 *Dibble v. Briggs, 28 111. 48; Cooney v. Wade, 23 Tenn. (4 Hump.) 
 444, 40 Am. Dec. 6S7; Crutchfield v. Robins, 24 Tenn. 15, 42 Am. Dec. 
 417; Contra, McCarver v. Nealey, cases 497. 
 
 "That it is only a discharge pro tanto, see: Deland v. Hiett, 27 Cal. 611, 
 87 Am. Dec. 102; Weber v. Couch, 134 Mass. 26, 45 Am. Rep. 274. Contra, 
 Harper v. Graham, 20 Ohio 105 ; Reid v. Hibbard, 6 Wis. 175. 
 
§ 220 SATISFACTION OF JUDGMENTS. 180 
 
 cution." When a stranger at the request of the debtor advances 
 the amount to pay a judgment with a mutual understanding 
 that the judgment shall be kept alive for his benefit, he is- 
 entitled to have it enforced by execution, though no formal 
 assignment was executed. So, when one who has purchased 
 property subject to a judgment lien pays the creditor, with a 
 like understanding, to save the property. ' The same privileges- 
 have been accorded to sheriffs who have had to pay the amount 
 because they failed to collect it on executions given to them,* 
 to sureties who have paid," and even to one of the principal 
 debtors who has paid the full amount when the others should 
 have paid in equal proportion. But, by the great weight of 
 authority, the judgment is satisfied as soon as the creditor 
 receives payment from the sheriff, or from one of the debtors, 
 though he be only a surety and the payment be made under 
 the guise of taking an assignment. This is because it would 
 not be safe to make a man a judge of his own rights ; but each 
 of these parties is entitled to redress, by action at law for money 
 paid to the use of the real debtor, or by bill in equity for sub- 
 rogation to the rights of the creditor.^ 
 
 "Steele v. Thompson, cases 218. 
 
 'Black on Judgments § 999 ; Freeman on Judgments § 468. 
 
 'Heilig V. Lemley, cases 489. 
 
 'Southeren v. Reed, cases 494. 
 
 ^Bones v. Aiken, cases 494, and notes ; Stanley v. Nutter, ca? e^ 186, 
 
C, RIGHTS AFTER SATISFACTION, 
 
 Proof and Entry of Satisfaction, § 221. 
 
 Appeal After Satisfaction, § 222. 
 
 Restitution on Reversal, §§ 223. 
 
 Protection of Third Parties when Judgment is Reversed,, 
 
 § 224. 
 Vacating, False Satisfaction, § 225. 
 
 Proof and Entry of Satisfaction. 
 
 § 221. As a necessary incident of its power to administer 
 justice, every court has jurisdiction to inquire whether its judg- 
 ments have been satisfied, and to enter satisfaction on its rec- 
 ords whenever a satisfaction in fact is found.^ The procedure 
 is to move that satisfaction be entered, give all persons inter- 
 ested notice of the motion, and support it by such proof as the 
 facts afford.^ 
 
 Appeal After Satisfaction. 
 
 § 222. The courts are not agreed as to whether an appeal 
 may be maintained after the judgment has been satisfied; but 
 the better view seems to be that an appeal lies in favor of a 
 defendant who has paid to avoid execution being issued, or in 
 favor of a plaintiff who has accepted payment of what was 
 awarded him without taking it as payment in full. One who 
 has attempted to enforce a judgment in his favor might with 
 greater reason be held to be precluded from seeking to avoid it.'*' 
 
 Restitution on Reversal. 
 
 § 223. On reversal of the judgment after sale on execu- 
 tion under it, or after payment of the amount by the defendant 
 
 ^Bailey v. Hester, loi N. Car. 538. 
 
 'Abercrombie v. Chandler, cases 184; Black on Judgments § 1014. 
 
 "Freeman on Judgments § 480a. 
 
•§ 224 RIGHTS AFTER SATISFACTION. 182 
 
 to avoid execution, the defendant is entitled to be restored to 
 his original position. He may without demand sue the plaintiff 
 for the amount, or at his option, for the specific property taken 
 if the plaintiff purchased it at the sale. The courts are not 
 agreed as to whether the amount which he can recover is the 
 amount which the property brought at the sale or its real value. ° 
 
 Protection of Third Parties When Judgment is Reversed. 
 
 § 224. A garnishee is protected by payment of the debt 
 or delivery of the property on the judgment against him, al- 
 though the defendant afterwards obtains a reversal of that 
 judgment or of the judgment in the main action." When a 
 stranger to a judgment purchases property at a sale under exe- 
 cution thereon his title is unaffected by the subsequent reversal 
 of the judgment, though he knew that an appeal was pending 
 ■or might be taken.' This rule has been held to extend to one 
 who was interested in the sale as a junior lien-holder,* but not 
 to the attorney for the creditor on whose judgment the sale 
 was made." If this protection were not allowed, said Lord 
 Coke, "The vendee would lose his term and his money too, and 
 thereupon great inconvenience would follow, that none would 
 buy of the sheriff goods and chattels in such cases, and so exe- 
 cution of judgments (which is the life of the law) would not 
 be done."^ Some courts have thought that the stranger should 
 be equally protected when he purchases while the appeal is 
 
 "That the defendant is not restricted to a recovery of the amount for 
 which the property sold, see the following : Reynolds v. Hosmer, 45 Cal. 
 ■616; Hays V. Cassell, 70 111. 669; Fush v. Egan, 48 La. An. 60; Maynard 
 V. May (Ky.), 25 S. W. 879; Haebler v. Myers, 132 N. Y. 363, 28 Am. St. 
 .589. Contra, Peck v. McLean, 36 Minn. 228, i Am. St. 665, 30 N. W. 759; 
 Bryant v. Fairfield, 51 Me. 149. 
 
 "Troyer v. Schweizer, 15 Minn. 241 (Gil. 187) ; Allen v. Seaver, 38 
 Vt. 673 ; Clough V. Buck, 6 Neb. 343. 
 
 'Gould V. Sternberg, 128 111. 510, 15 Am. St. 138, 21 N. E. 628. 
 
 'McBride v. Longworth, 14 Ohio St. 349, 84 Am. Dec. 383. 
 
 "Galpin V. Page, 85 U. S. (18 Wall.) 350. 
 
 'Manning's Case, 8 Coke 94, 97. 
 
183 RIGHTS AFTER SATISFACTION. § 225- 
 
 pending though the purchaser at the sheriff's sale was the 
 plaintiff or his attorney; but this is generally denied, because 
 the reasons for the rule do not seem to require it." 
 
 Vacating False Satisfaction. 
 
 § 225. The general powers of superior courts give them 
 jurisdiction to set aside satisfactions entered on their judg- 
 ments; and they will do so whenever justice requires it. But 
 the clerks of these courts possess no such powers." Justices of 
 the peace cannot vacate their judgments; and by analogy of 
 reason, would seem to lack power to vacate satisfactions entered 
 on their judgments. The only remedy in such cases would 
 seem to be to sue over on the judgment.* Whether a court 
 should vacate a satisfaction produced by a sale of the property 
 of a stranger or of exempt property is disputed; but the ma- 
 jority of the courts favor setting aside the satisfaction and 
 issuing a new execution in both of these cases, in favor of the 
 plaintiff if he was the purchaser at the sale, for the use of the 
 purchaser if he was a stranger.^ A few courts have set aside 
 satisfactic5w and issued new executions because the property 
 was encumbered for more than it was \\'orth ; but it is generally 
 held that the satisfaction cannot be set aside because the pur- 
 chaser was mistaken as to the quality of the property or the 
 value of the defendant's estate in it." And it is quite generally 
 agreed that no action can be maintained by the purchaser 
 against the sheriff or the plaintiff for the money paid, nor 
 against the defendant for the loss from an excessive bid. There- 
 is no warranty at such sales. Caveat emptor applies.' 
 
 ''Singly V. Warren, 18 Wash. 434, 63 Am. St. Rep. 896, 51 Pac. 1066. 
 
 'Hughes V. Streeter, cases 506. 
 
 *Piper v; Elwood, cases soS, and notes. 
 
 'Watson V. Reissig, cases 509; Freeman v. Caldwell, cases 510, and' 
 notes. 
 
 'Poppleton V. Bryan, 36 Ore. 69, 58 Pac. 767. But as to sales by a 
 court of equity see: People's Bank v. Bramlett, 58 S Car. 477, 36 S. E. 912,. 
 79 Am. St. 855. 
 
 'See notes to Freeman v. Caldwell, cases 512. 
 
CASES, 
 
OUR PLAN OF TREATMENT. 
 
 1. Nature and Essentials of Judgments. 
 
 2. Kinds of Judgments. 
 
 3. The Record of the Judgment. 
 
 4. Amending, Vacating, and Modifying Judgments. 
 
 5. The Effect of Judgments. 
 
 6. The Satisfaction of Judgments. 
 
 A. The Processes to Obtain Satisfaction. 
 
 a. Nature, 
 b Issuance, 
 c. Execution. 
 
 B. What Constitutes Satisfaction. 
 
 C. Questions Arising after Satisfaction. 
 
I. NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 1. DEFINITION AND NATURE OF JUDGMENTS. 
 
 JASPER V. SCHLBSSINGBR and MAYER. 
 22 Illinois Appeals 637. (1886) 
 
 Judgment — Record^ — iPresumption of Verity — Session of Court — Exe- 
 cution. 
 
 Motion in the Superior Court of Cook county by Peter H. 
 Jasper to amend the record of judgment rendered against him and 
 to quash the execution issued thereon. From an order denying the 
 motion he brings error. Affirmed. 
 
 Grant & Brady, and F. F. LeMngwell for Jasper. 
 
 Kraus, Mayer & Brackett, for respondents. 
 
 The Court by Moran, J. On the 17th day of June, 1886, a 
 judgment by confession was entered in the Superior Court of Cook 
 county by defendants in error against the plaintiffs in error upon 
 a certain note and warrant of attorney substantially in the usual 
 form. On June 26th thereafter a motion was made by the plaint- 
 iffs in error in the said court to correct the record of the said judg- 
 ment so as to show that the branch of the said court, presided over 
 by Hon. Elliott Anthony, who directed the entry of the judgment, 
 did not open on the 17th day of June, 1886, and said judge did not 
 take his seat on the bench till 10 o'clock in the forenoon of said day, 
 and that the direction to enter the judgment was indorsed by said 
 judge upon the declaration filed in said case, to which was 
 attached the cognovit note and warrant of attorney, and that such 
 indorsement was made before the hour of 10 o'clock in the forenoon 
 of said 17th day of June and outside of the court room which was 
 at that date occupied and used by said judge. Affidavits were filed 
 in support of said motion, from which it appears that the declara- 
 tion, cognovit, etc., with the order to enter judgment thereon, was 
 
4 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 handed to a recording clerk about lo o'clock and that the judgment 
 order was written by him in the judgment record book by fifteen 
 minutes past ten, and that prior to the recording of judgment an 
 execution had been issued and delivered to the plaintiffs' attor- 
 neys in said case. That on said 17th day of June the branch of 
 said court presided over by Judge Anthony, "was opened and said 
 judge ascended the bench on that morning at 10 o'clock and not 
 before." There was evidence tending to show that the declaration, 
 cognovit, and other papers, with the indorsement, "enter judgment, 
 E. Anthony, Judge, etc.," were filed in the office of the clerk of the 
 Superior Court about 9 :30 o^ clock on the morning of said 17th day 
 of June. The court refused to change the record as required by 
 the motion and such refusal of the court is assigned for error. 
 
 The record of the judgment as it comes here, shows that the 
 [*dj(?] June term of the court was duly opened on the first Mon- 
 day, being the 7th day of June, A. D. 1886 ; that on the 17th day 
 of June, 1886, the declaration note, warrant of attorney and cog- 
 novit were filed in the clerk's office of the Superior Court with the 
 words, "enter judgment, E. Anthony, Judge, etc.," indorsed there- 
 on, and then follows the judgment by the court, "on consideration 
 that the plaintiffs do have and recover, etc.," in all respects a formal 
 judgment order. It is to be observed that there is no order of 
 adjournment at all in the record ; and as appears, the court being 
 opened on June 7th, continued open without any adjournment 
 whatever down to and including the day on which the judgment 
 was entered. Even if the ordinary recess or adjournment of the 
 court over night could be held a suspension of the functions of the 
 court until there should be a proclamation of the opening of the 
 court the next morning, there is nothing in the record to show that 
 there was any such temporary adjournment. 
 
 There was no offer by plaintiffs in error in their motion to 
 change the record, to show that the court had adjourned at any 
 time prior to the morning of June 17th, and no evidence contained 
 in the affidavits filed in support of such motion, that there had in 
 fact been any such adjournment. The statement that the branch 
 of said court "was opened and said judge ascended the bench on 
 that morning at 10 o'clock and not before," may give rise to an 
 
DEFINITION. 5 
 
 inference that the court had been adjourned, but it is very far from 
 a statement to that effect, and the inference can not be indulged 
 in, particularly in the face of the record itself. The rule of law 
 is that the court is open from the first convening at the commence- 
 ment of the term as fixed by law till it is closed by the expiration 
 of the term or adjourned sine die, and the term, though running 
 through several weeks, and even months, is to be regarded as one 
 day. Richardson v. Beldam, i8 111. App. 527; Union PaciHc 
 R. R. Co. V. Hand, 7 Kan. 380, Barnett v. State, i Wis. 156, 
 *i76. 
 
 The decision in Conkling v. Ridgeley, 112 111. 36, that the 
 period of definite adjournment for several weeks during the term 
 will, under our statute, be vacation for the purpose of [*(54o] 
 authorizing the clerk to enter up confessions of judgment, does not 
 conflict with the general rule which has always obtained at com- 
 mon law. 
 
 The statement in the motion, that the indorsement to enter 
 judgment was made outside the court room, which was at that 
 date occupied and used by said judge, is wholly unsupported by 
 the evidence. There is absolutely no showing whatever as to 
 where the indorsement was made, and the record showing the court 
 open and reciting the formal order of judgment, it must be pre- 
 sumed that the order was made at the place where, by law, the 
 court was authorized to be held. 
 
 There was no error, then, in the refusal of the court to alter 
 or amend the record in the manner suggested in the motion of the 
 plaintiff in error. Neither was there error in overruling the motion 
 subsequently made to vacate the judgment on the ground that its 
 entry was not based upon anyorder or judgment of a judge of said 
 court, made or found in open court. As we have seen in the dis- 
 cussion of the prior motion, the court was open, and the record 
 shows a proper order of judgment by the court. This record 
 imports verity, and until altered by a proceeding apt and proper 
 for the purpose, it can not be contradicted. 
 
 A further motion was made to quash the execution, on the 
 ground that at the time it was issued by the clerk and delivered 
 to the attorneys there was no judgment entered; i. e., the record 
 
b NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 of the judgment had not been made up in the record of the court 
 by the clerk. 
 
 The papers in the case became a part of the record when filed 
 and the order of the court to enter judgment was a sufficient min- 
 ute to guide the clerk in writing out a formal order of judgment. 
 It is not the practice of the court in rendering judgment in any 
 case at common law to write out the formal order at length, nor 
 is it the practice for the minute clerk to write out such order in 
 his minutes, but such memorandum is made as clearly indicates 
 what the judgment of the court is. 
 
 We have no judgment roll in which all the pleadings and each 
 order is formally and with great particularity written out as [*(54i"] 
 was the ancient practice in England. "Judgment for the plaintiff 
 for $ioo," is a skeleton entry which, if made by the judge or 
 entered on the minutes of the clerk by the judge's order, will suffi- 
 ciently indicate the formal entry that is to be made in the record 
 of the court. The words, "enter judgment," written by the judge 
 upon the papers in a confession proceeding that have been sub- 
 mitted to the court for inspection and judgment, indicate very 
 clearly, in our opinion, that the court has considered the matter 
 and intends by those words to render a judgment for the amount 
 confessed in the cognovit, and that such minute or memorandum 
 fully authorizes the spreading on the record by the clerk of the 
 full and formal judgment order. We find in the record, as it is 
 brought here, the judgment order rendered on the 17th day of June. 
 
 This is not like the case cited by counsel where, when the full 
 record was certified by the clerk, no judgment appeared to have 
 ever been rendered. When the complete record is inspected on 
 error the formal entries are required to be set out in it. In Eng- 
 land in practice the proceedings are seldom entered on the judg- 
 ment roll unless it is absolutely necessary to do so for the purpose 
 of bringing error or for the purpose of evidence. Smith's Action 
 at Law, 192. A reviewing court may not interpret the court's 
 minutes or memorandum or expand them into formal and com- 
 plete orders, but when the court itself does so during the term and 
 the record shows them duly entered, the recital thereof is conclu- 
 sive. 
 
DEFINITION. i 
 
 In vacation, where a confession of judgment is entered by the 
 clerk, the judgment order as held in Ling v. King,gi lU. 571, must 
 be entered before any judgment can be held to be in existence. The 
 judgment and the record evidence of it is in that case the same 
 thing, but in term time a judgment may be rendered by the court 
 at the beginning of the term and the full record of the order may 
 not be written up till after the expiration of the term. It could 
 not be said that there was no judgment because the judgment order 
 had not been spread out at length upon the judgment record. The 
 judgment is a fact from the moment it is pronounced by the court, 
 and the 1*642] clerk's duty is to record such judgment before the 
 final adjournment of the term "or as soon thereafter as practic- 
 able." R. S., Chap. 25, § 14. 
 
 We see no reason for making a distinction between a judg- 
 ment rendered by the court in term time on confession and a judg- 
 ment in a suit where there has been an issue and a contest. When 
 the judgment has been rendered in the one case it will authorize 
 the issuing of an execution as fully as in the other and each will be 
 a lien on the real estate of the person against whom it is obtained 
 "from the time the same is rendered." 
 
 It is not, however, necessary for us to decide in this case the 
 question as to whether the execution may issue before the judg- 
 ment is written up in the judgment record. If there was an abso- 
 lute requirement of the statute that the judgment order should be 
 recorded by the clerk before execution should issue, yet the record 
 being written on the same day but after the execution issued, the 
 irregularity would not avail the defendant on the facts appearing 
 in the record. By the statute in New York, "no judgment shall be 
 deemed valid so as to authorize any proceedings thereon until the 
 record thereof shall have been signed and filed." In Small v. 
 McChesney, 3 Cow. 19, upon a motion to set aside the execution, 
 it was shown that the execution was issued and levied between 2 
 and 4 o'clock in the morning, whereas the judgment was not signed 
 till about II o'clock of the g^me morning and the record was not 
 filed till 4 p. M. of the same day. The court said : "The party who 
 moves has sustained no injury by this proceeding. The whole pro- 
 ceeding is on the same day, which the law will not divide into frac- 
 
O NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 tions unless this be necessary for the purpose of guarding against 
 injustice. Here has been none. The objection is merely technical 
 and the technical answer is enough when there has been no injury 
 from the proceeding." 
 
 To the same effect are Clute v. Clute, 4 Den. 241, and 3 Den. 
 263. There is no pretense here that the judgment was not for a 
 debt bona Me due, that it was not for the correct amount, or that 
 the execution was obtained or issued for any unlawful purpose. 
 The motion was based at the very best on a mere [*(5^j] techni- 
 cality and was upon the authority of the cases cited properly over- 
 ruled. 
 
 The plaintiffs in error also moved the court to set aside wholly, 
 or in part, the cognovit filed, for the reason that the attorney who 
 signed the same exceeded the authority conferred by the warrant 
 of attorney. The cognovit agreed that no writ of error or appeal 
 should be prosecuted from the judgment entered nor any bill in 
 equity filed to interfere with the operation of the judgment. The 
 warrant of attorney did not authorize such agreement, but only 
 gave power "to waive and release all errors which may intervene 
 in any such proceedings." This motion the court might well have 
 granted and expunged from the cognovit the unauthorized portion 
 without in any manner affecting the validity of the judgment. But 
 the refusal of the court to do so is not such error as will reverse. 
 
 The unauthorized agreement could not be made effectual 
 against plaintiffs in error unless affirmatively ratified by them. 
 The prosecution of this writ of error evidences the fact that the 
 agreement is futile to deprive them of their rights. That error 
 only which injures is available to cause a reversal. 
 
 The judgment of the Superior Court will be affirmed. 
 
 Judgment affirmed. 
 
 BRIGHTMAN & CO. v. MERRIWBTHBR et al. 
 121 Alabama 602, 25 Southern 994. (1898) 
 
 The Court by McClellan, C. J. Trial of right to property 
 which had been levied on at the suit 6f Merriwether et al. against 
 Brandy, and claimed by Brightman & Co. under [*(5o5] a mort- 
 gage executed to them by Brandy. The burden was on the plaint- 
 iffs to show the levy of a valid execution on the property. Jackson 
 
DEFINITION. ^ 
 
 V. Bain, 74 Ala .328. This they failed to do. To the contrary it 
 affirmatively appeared by the transcript of the record in the case- 
 of Merriwether et al. v. Brandy, the execution upon a supposed 
 judgment in which was levied on this property, that no judgment 
 was ever entered therein. What is claimed to be a judgment is 
 tiie mere copy of the judge's bench notes, stating the parties to the- 
 case, and the following: "August 18, Judgment by default, writ 
 of enquiry, damages assessed at $77.65, waiver of Ex. as to per- 
 sonality." This, of course, was no judgment. * * * 
 
 Reversed and remanded. 
 
 LOCKE V. HUBBARD. 
 9 South Dakota 364, 69 N. W. 588. (1896) 
 
 How Early Execution may Issue — On Order for Judgment — Effect of.' 
 
 Judge's Signature — Importance of Filing Record and 
 
 Docketing Judgment — Judgment Defined. 
 
 Action by C. W. Locke against C. W. Hubbard, sheriff of 
 Minnehaha county, for conversion of a stock of drugs. Defend- 
 ant appeals from a judgment in favor of plaintiff and from an 
 order denying a motion for a new trial. Reversed. 
 
 The plaintiff claimed under a chattel mortgage by B. L. Hav- 
 dahl and another. The defendant justified the seizure under an 
 execution on a judgment against B. L. Havdahl, in favor of Noyes- 
 Bros. & Cutler. The important question arises on the ruling of 
 the court excluding the judgment and execution from evidence,, 
 because no judgment had been entered in the judgment book at 
 the time the execution issued. 
 
 Davis, Lyon & Gates, for Appellant. 
 
 Joe Kerby, for Appellee. 
 
 The Court by Corson, P. J. * * * It is contended by the 
 learned counsel for the appellant that the judgment, when reduced 
 to writing, and signed by the judge, was the final determination 
 of the action, and execution issued thereon was a valid execution,, 
 though no judgment had been, in fact, entered in the judgment 
 book, and that the court, therefore, erred in excluding the judg- 
 ment roll and execution. The learned counsel for the respondent 
 contends that the paper signed by the judge was, in legal effect, 
 simply an order for judgment, and that there can be in this state 
 
10 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 no legal judgment until one is entered in the judgement book, 
 which will authorize the issuance of an execution, the filing of a 
 judgment roll, or the docketing of the judgment. This is an im- 
 portant question in this state, and has never yet been passed upon 
 by the appellate court. A judgment is defined by § 5024, Comp. 
 Laws, as follows : "A judgment is the final determination of the 
 rights of the parties in the action." It will be observed that what 
 constitutes the evidence of such judgment, or when or how such 
 determination of the rights of the parties shall become effectual as 
 a judgment, is left unprovided for by that section. It defines a 
 judgment in the language of most of the text-books upon this sub- 
 ject. Section 5095 provides that "judgment upon an issue of law 
 ■or fact * * * may be entered by the clerk upon the order of the 
 court or the judge thereof." Section 5101 provides that "the clerk 
 shall keep, among the records of the court, a book, for the entry 
 of the judgments, to be called the 'judgment book.' " Section 
 5102 provides : "The judgment shall be entered in the judgment 
 took, and shall specify clearly the relief granted or other determi- 
 nation of the [368] action." It will be noticed that no judgment 
 is mentioned which is to be copied or entered in the judgment 
 book, but that the judgment shall be entered by the clerk in the 
 judgment book. Section 5103 provides that, "immediately after 
 entering the judgment," a judgment roll shall be made up, and 
 what it shall contain. Section 5104 provides that, "on filing the 
 judgment roll," the judgment shall be docketed, etc. And § 51 10 
 provides that "the party in whose favor judgment has heretofore 
 been or shall hereafter be given * * * may, at any time within 
 five years after the entry of judgment, proceed to enforce the 
 same by execution." Section 51 11 provides: "After the lapse 
 of five years from the entry of judgment, "application can be 
 made to the court," etc. It will thus be seen that the judgment 
 entered in the judgment book is the only judgment mentioned in 
 the statute. What authority, therefore, has this court to hold any 
 paper or record a judgment other than the one entered in the 
 "judgment book?" The judgment there entered is the original 
 judgment, and the only one the law contemplates. Undoubtedly 
 the court, judge, or counsel may very properly prepare a form of 
 
DEFINITION. 11 
 
 judgment for the clerk to enter, but such paper, though signed by 
 the judge or court, is no more the judgment of the court than the 
 one prepared by counsel. It may be, and probably would be held, 
 an order for judgment. If these views are correct, then it follows 
 that the execution was issued before the entry of any judgment 
 upon which it could be based, and before the clerk was authorized 
 to issue it, as he is only authorized to issue the execution at any 
 time within five years after the entry of the judgment but not 
 "before such entry. 
 
 The counsel for the appellant have cited a large number of 
 authorities, including both text writers and courts, in support of 
 their contention that the judgment prepared and signed by the 
 judge is the judgment of the court; but the statutory provisions 
 on this subject are so various that these decisions throw but little 
 light upon the question, under the peculiar [,?(5p] provisions of our 
 statute. The statutes of Minnesota upon the subjects of judg- 
 ments are very nearly, if not identically, the same as those in this 
 state, and that court has uniformly held that there is no judgment 
 in that state, other than the one entered in the "judgment book." 
 In Rockwood v. Davenport, 37 Minn. 533, 35 N. W. 377, that 
 court, by Gilftllan, C. J., says: "Gen. St. 1878, Chap. 66, § 273, 
 (Gen. St. 1894, § 5421) reads: 'The judgment shall be entered in 
 the judgment book, and specify clearly the relief granted, or other 
 determination of the action.' By § 275 (§ 5423) the clerk is re- 
 quired, 'immediately after entering the judgment' to attach and 
 file, as the judgment roll, certain papers, among them a copy of 
 the judgment. Sec. 2yy(^ 5425 ) provides for docketing the judg- 
 ment 'on Ming the judgment roll.' These acts follow in regular 
 sequence, ist, the entry of the judgment, 2nd, the making up and 
 filing the judgment roll, 3rd, the docketing. To support either a 
 judgment roll or docketing, there must be a judgment entered. As 
 this court said in Williams v. McCrade, 13 Minn. 46 (Gil. 39) : 'If 
 a copy of the judgment constitutes a part of the judgment roll, the 
 ■original must exist.' There can be no judgment capable of being 
 docketed or enforced in any manner till it is entered in the judg- 
 ment book. Until that is done it does not matter that the party is 
 •entitled to judgment either by default of defendant, or upon a 
 
12 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 decision or direction of the court. It has frequently been decided 
 that an order or direction for judgment by the court, or by a ref- 
 eree, is not a judgment so that an appeal can be taken from it. 
 That, to constitute a judgment, it must be entered in the judgment 
 book, as the statute directs, has always been held by this court. 
 Brown v. Hathaway, lo Minn., 303 (Gil. 238) ; Williams v. Mc- 
 Crade, 13 Min. 46 (Gil. 39) ; Washburn v. Sharpe, 15 Min. 63, 
 (Gil. 43) ; Hodgins v. Heaney, 15 Min. 185 (Gil. 142) ; Thompson 
 w.Bickford, 19 Min. 17 (Gil. i) ; Hunter v. Stove Co., 31 Min. 505, 
 18 N. W. 645." The supreme court of North Dakota, construing 
 the same provisions of the Code of Civil Procedure now [j/o] 
 under consideration, in a very exhaustive opinion, takes the same 
 view. Mr. Justice Bartholomew dissented, but upon other points 
 decided by the majority of the court. In re Weber (N.D), 59 N. 
 W. 523. We find no authority for holding a different view upon 
 statutes containing similar provisions, and hence upon the weight 
 of authority, as well as upon our own view of these provisions, we 
 hold that a judgment, within the meaning of our Code, is a judg- 
 ment entered in the judgment book; and, until one is entered 
 therein, there is no judgment upon which an execution can be 
 legally issued by the clerk. 
 
 It is further contended that such a holding has the effect of 
 giving authority to the clerk, and not the court, to enter the judg- 
 ment. But this is not so, for the reason that, in contemplation of 
 law the court enters the judgment in the judgment book, through 
 its clerk, who merely performs the clerical act of writing the 
 judgment in the judgment book, under the direction of the 
 court. 
 
 It is further contended by appellant that the practice in this 
 state has been to regard the judgment, signed by the court and 
 filed, as the judgment in the case, and that a decision at this time 
 will unsettle titles to property sold upon execution. While a 
 court, in making its decision, cannot look to consequences beyond 
 the case before it, we apprehend no such result as counsel suggest 
 would follow, for the reason that evidence aliunde the record could 
 not properly be admitted in a collateral proceeding, if objected to 
 on the trial, and the presumption that the clerk had performed his 
 
JURISDICTION. 13 
 
 duty would prevail, unless otherwise clearly shown by the record. 
 
 * * * [575] 
 
 Upon the evidence before the trial court as disclosed by the 
 record in this court, the plaintiff was not entitled to a judgment in 
 €xcess of $94.24, in any event ; and hence the court erred in direct- 
 ing a verdict in excess of that sum, for which a new trial must be 
 granted. The judgment of the county court and the order deny- 
 ing a new trial are 
 
 Reversed, and a new trial ordered. 
 
 2. JURISDICTION. 
 
 HOAGLAND v. CREED. 
 81 Illinois 506. (1876) 
 
 Jurisdiction by Consent — Validity of Judgment. 
 
 Error to Morgan Circuit Court. Dismissed. 
 
 Oscar A. DeLeurv, for appellant. 
 
 Morrison, Whitlock & Lippincott, for appellee. 
 
 The Court by ScholHeld, J. The record brought before us by 
 this writ shows a trial, by agreement, before Edward P. Kirby, 
 Esq., a member of the bar, and what purports to be a judgment 
 rendered by him as judge of the circuit court of Morgan county. 
 The bill of exceptions, or rather what purports to be the bill of 
 -exceptions, is signed by him; and it is impossible for us to close 
 ■our eyes to the fact, however strongly we might be inclined to do 
 so, that the record sought to be reviewed is one made by Edward P. 
 Kirby, Esq., a member of the bar, and not by any one commis- 
 sioned to act as circuit judge. What we might hold, did it appear 
 that he was acting as circuit judge under color and claim of author- 
 ity, we will not say — it is sufficient that all pretense that he was 
 ■a judge de facto is without any foundation in the record. It 
 ■expressly shows that he is a member of the bar, and that his author- 
 ity for assuming to act as judge was the agreement of the parties. 
 Ereeman on Judgments, § 148 ; Case v. State, 5 Ind. i ; State v. 
 Anone, 2 Nott & McCord, (S. Car.) 27; State v. Ailing, 12 Ohio 
 16 ; Blackburn v. State, 40 Tenn (3 Head) 690 ; and Pepin v. Lack- 
 •enmeyer, 45 N. Y. 27, cited by the counsel for the defendant in 
 (error, are, therefore, not in point. 
 
14 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 Under our constitution, judges are elected by popular vote, 
 except to fill vacancies not to exceed one year, which shall be filled 
 by the appointment of the Governor. Const. 1870, art. 6, § 32. 
 And all judges shall be commissioned by the Governor. Same 
 article, § 29. And, unlike the constitutions of some other States, 
 it contains no authority for temporarily filling the office in any other 
 way. 
 
 With regard to the doctrine that consent can not confer juris- 
 diction as to the subject matter, and that judicial power can not be 
 delegated, we deem it unnecessary to enter into any extended dis- 
 cussion. All that need be said on these subjects is [*5o8] so well 
 said by Judge Cooley, in his work on Constitutional Limitations, 
 1st ed. p. 399, that we shall content ourselves with transcribing it: 
 "But the courts of a country can not have those controversies 
 referred to them by the parties which the law-making power has 
 seen fit to exclude from their cognizance. If the judges should sit 
 to hear such controversies, they would not sit as a court; at the 
 most, they would be arbitrators only, and their action could not be 
 sustained on that theory, unless it appeared that the parties had 
 designed to make the judges their arbitrators, instead of expecting 
 from them valid judicial action as an organized court. Even then, 
 the judgment could not be binding as a judgment, but only as an 
 award ; and a mere neglect by either party to object to the want 
 of jurisdiction, could not make the decision binding upon him, 
 either as a judgment or as an award. * * * 
 
 "If the parties can not confer jurisdiction upon a court by 
 consent, neither can they by consent empower any individual other 
 than the judge of the court to exercise its powers. Judges are 
 chosen in such manner as shall be provided by law; and a stipu- 
 lation by parties that any other person than the judge shall exer- 
 cise his functions in their case would be nugatory, even though the 
 judge should vacate his seat for the purpose of the hearing." 
 
 That which, in the present record, purports to be a bill of 
 exceptions and judgment is, therefore, a nullity, and there is no 
 case before us upon which we are authorized to render final judg- 
 ment. It follows, the writ of error must be dismissed. 
 
 Writ dismissed. 
 
JURISDICTION. IS- 
 
 COOPER V. REYNOLDS. 
 77 United States (10 Wallace) 308. (1870) 
 
 Attachment — Elements of Jurisdiction — Effect of Irreguiarities — Effect 
 of Personal Service — Collateral Attack. 
 
 Ejectment by Reynolds against Cooper in the circuit court for 
 the eastern district of Tennessee. From judgment for plaintiff,, 
 defendant brings error. Reversed. 
 
 On the trial it was admitted that Reynolds owned the land 
 unless Cooper had acquired title by virtue of the following described 
 judicial proceedings. The record in the case of Brownlow^v. Rey- 
 nolds in the circuit court for Knox county, Tennessee, which was- 
 put in evidence by Cooper, showed that on Sept. 26th, 1863, G. W. 
 Brownlow sued out of that court a summons in trespass against 
 said Reynolds and others for false imprisonment, etc. : damages, 
 $25,000. To this writ the sheriff returned that "he had made 
 search and that none of the defendants were to be found in his- 
 county." The day the writ was issued Brownlow filed with the 
 clerk of the court an affidavit for attachment against the property 
 of said Reynolds and the others ; alleging, among other things, 
 "that all of the defendants have fled from this state or that they sa 
 abscond or conceal themselves that the ordinary process of law can- 
 not reach them." In the record is also an attachment bond for 
 $50,000, and an attachment for $25,000, all bearing the same date. 
 The attachment recites the substance of the affidavit, and directs the 
 sheriff to attach sufficient of the property of Reynolds and the 
 others to satisfy the said demand of $25,000, and hold the same 
 ready to be disposed of as the court should direct. To this attach- 
 ment the sheriff returned that he had thereon attached all the title 
 and right of Reynolds in 160 acres of land, the property now in 
 controversy, describing it. The court ordered publication to be 
 made in the Knoxville Whig, a county paper, notifying the defend- 
 ants to appear and plead, answer or demur, or the suit would be 
 taken as confessed as to them and proceeded in ex parte. The rec- 
 ord does not show that this publication was ever in fact made, 
 except inferentially by setting out the order for publication, which 
 was entitled, "Order for publication and the publication as made 
 in the Knoxville Whig." The record goes on to say that the 
 
16 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 defendants, being solemnly called to come into court, came not, but 
 made default, and it appearing^ that the attachment has been duly 
 levied, and that publication has been made according to law, it is 
 ordered that the plaintiff do recover his damages. These were 
 -assessed at $25,000, and for that sum execution was ordered to 
 issue, and that the sheriff should sell the attached land. The land 
 was accordingly sold by the sheriff under a venditioni exponas, and 
 deed made to Cooper, as purchaser, who was put into possession 
 under a haberi facias, issued from the same court in the same pro- 
 ■ceedin^. 
 
 The record being thus in evidence the court instructed the jury 
 that the sheriff's deed was null and void, and conveyed no title, 
 because the judgment on which the sale was made was void for 
 want of either personal service on or appearance by the defendants 
 therein, or a valid attachment; and that the attachment was void 
 because it does not appear that publication was ever in fact made, 
 and because the afifidavit did not conform to the law. Verdict being 
 found for the plaintiff under the instructions of the court, defend- 
 ant alleges as error that the instructions were not correct. 
 
 Horace Maynard and T. A. R. Nelson for plaintiff in error. 
 
 /. W. Moore, for defendant in error. 
 
 The Court by Miller, J. The objections taken to the proceed- 
 ing in attachment under which Cooper, the defendant below, 
 claimed title, are, ist, that by the law of Tennessee the attachment 
 ■could not be issued, at the beginning of the suit where the action 
 was ex delicto, but could only be issued after suit commenced ; 2d, 
 that the affidavit was defective; 3d, that there was no publication 
 of notice, as required by the statutes. 
 
 The question of the conformity of these proceedings to the 
 requirements of the statutes under which they were had, has been 
 very fully discussed by counsel, and if we were sitting here as on 
 a writ of error to the judgment of the state court under which the 
 land was sold, we might not find it easy to affirm or reverse the 
 judgment on satisfactory grounds, notwithstanding the abundant 
 citation of authorities from the Tennessee courts. But we occupy 
 no such position. The record of this case is introduced collaterally 
 as evidence of [*Ji(5] title in another suit, between other parties, 
 
JURISDICTION. 17 
 
 and before a court which has no jurisdiction to reverse or set aside 
 that judgment, however erroneous it may be. Nor can it disre- 
 gard that judgment, or refuse to give it effect, on any other ground 
 than a want of jurisdiction in the court which rendered it. 
 
 It is of no avail, therefore, to show that there are errors in 
 that record, unless they be such as prove that the court had no juris- 
 diction of the case, or that the judgment rendered was beyond its 
 power. This principle has been often held by this court, and by 
 all courts, and it takes rank as an axiom of the law. But that its 
 applicability to the present case may be thoroughly understood, ref- 
 erence is made to the most important of the decided cases in this 
 court and in the Supreme Court of Tennessee.^ 
 
 It is necessary, therefore, in the present case to inquire whether 
 the errors alleged affect the jurisdiction of the court. 
 
 It is as easy to give a general and comprehensive definition 
 of the word jurisdiction as it is difficult to determine, in special 
 cases, the precise conditions on which the right to exercise it 
 depends. This right has reference to the power of the court over 
 the parties, over the subject-matter, over the res or property in con- 
 test, and to the authority of the court to render the judgment or 
 decree which it assumes to make. 
 
 By jurisdiction over the subject-matter is meant the nature 
 of the cause of action and of the relief sought ; and this is- conferred 
 by the sovereign authority which organizes the court, and is to be 
 sought for in the general nature of its powers, or in authority spe- 
 cially conferred. Jurisdiction of the person is obtained by the ser- 
 vice of [*3i/] process, or by the voluntary appearance of the 
 party in the progress of the cause. Jurisdiction of the res is ob- 
 tained by a seizure under process of the court, whereby it is held 
 to abide such order as the court may make concerning it. The 
 power to render the decree or judgment which the court may 
 undertake in the particular cause, depends upon the nature and 
 extent of the authority vested in it by law in regard to the sub- 
 ject-matter of the cause. 
 
 It is to be observed that in reference to jurisdiction of the per- 
 
 ^Harvey V. Tyler, 2 Wall. 328, and cases there cited; McGavock v. 
 Bell, 43 Tenn. (3 Cold.) 512; Stevenson v. McLean, 24 Tenn. (5 Hump.) 
 332, and cases cited. 
 
18 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 son, the statutes of the States have provided for several kinds of 
 service of original process short of actual service on the party to 
 be brought before the court, and the nature and effect of this serv- 
 ice, and the purpose which it answers, depend altogether upon the 
 effect given to it by the statute. So also while the general rule 
 in regard to jurisdiction in rem requires the actual seizure and pos- 
 session of the res by the officer of the court, such jurisdiction may 
 be acquired by acts which are of equivalent import, and which stand 
 for and represent the dominion of the court over the thing, and in 
 effect subject it to the control of the court. Among this latter class 
 is the levy of a writ of attachment or seizure of real estate, which 
 being incapable of removal, and lying within the territorial juris- 
 diction of the court, is for all practical purposes brought under the 
 jurisdiction of the court by the officer's levy of the writ and return 
 of that fact to the court. So the writ of garnishment or attach- 
 ment, or other form of service, on a party holding a fund which 
 becomes the subject of litigation, brings that fund under the juris- 
 diction of the court, though the money may remain in the actual 
 custody of one not an officer of the court. 
 
 When we come to the application of these principles to the 
 case before us, that which leads to some embarrassment is the com- 
 plex character of the proceeding which we are to consider. 
 
 Its essential purpose or nature is to establish, by the judgment 
 of the court, a demand or claim against the defendant, [*5i5] and 
 to subject his property, lying within the territorial jurisdiction of 
 the court, to the payment of that demand. 
 
 But the plaintiff is met at the commencement of his proceed- 
 ings by the fact that the defendant is not within that territorial 
 jurisdiction, and cannot be served with any process by which he 
 can be brought personally within the power of the court. For this 
 difficulty the statute has provided a remedy. It says that, upon 
 affidavit being made of that fact, a writ of attachment may be issued, 
 and levied on any of the defendant's property, and a publication 
 may be made warning him to appear, and that thereafter the court 
 may proceed in the case, whether he appears or not. 
 
 If the defendant appears the cause becomes mainly a suit in 
 personam, with the added incident, that the property attached 
 remains liable, under the control of the court, to answer to any 
 
JURISDICTION. 19 
 
 demand which may be estabhshed against the defendant by the 
 final judgment of the court. But, if there is no appearance of the 
 defendant, and no service of process on him, the case becomes, in 
 its essential nature, a proceeding in rem, the only effect of which 
 is to subject the property attached to the payment of the demand 
 which the court may find to be due to the plaintiff. 
 
 That such is the nature of this proceeding in this latter class 
 of cases, is clearly evinced by two well-established propositions: 
 first, the judgment of the court, though 'in form a personal judg- 
 ment against the defendant, has no effect beyond the property 
 attached in that suit. No general execution can be issued for any 
 balance unpaid after the attached property is exhausted. No suit 
 can be maintained on such a judgment in the same court or in any 
 other, nor can it be used as evidence in any other proceeding not 
 affecting the attached property, nor could the costs in that pro- 
 ceeding be collected of defendant out of any other property than 
 that attached in the suit. Second, the court, in such a suit, cannot 
 proceed unless the officer finds some property of defendant on which 
 to levy the writ of attachment. A return, that none can be found, 
 is the end of the case, and deprives the court of further jurisdic- 
 tion, [*Jip] though the publication may have been duly made and 
 proven in court. 
 
 Now, in this class of cases, on what does the jurisdiction o£ 
 the court depend ? It seems to us that the seizure of the property, 
 or that which, in this case, is the same in effect, the leAry of the writ 
 of attachment on it, is the one essential requisite to jurisdiction, as 
 it unquestionably is in proceedings purely in rem. Without this 
 the court can proceed no further ; with it the court can proceed to 
 subject that property to the demand of plaintiff. If the writ of 
 attachment is the lawful writ of the court, issued in proper form 
 under the seal of the court, and if it is by the proper officer levied 
 upon property liable to the attachment, when such a writ is returned 
 into court, the power of the court over the res is established. The 
 affidavit is the preliminary to issuing the writ. It may be a defect- 
 ive affidavit, or possibly the officer whose duty it is to issue the writ 
 may have failed in some manner to observe all the requisite for- 
 malities; but the writ being issued and levied, the affidavit has 
 
20 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 served its purpose, and, though a revisory court might see in some 
 such departure from the strict direction of the statute sufficient 
 error to reverse the judgment, we are unable to see how that can 
 deprive the court of the jurisdiction acquired by the writ levied 
 upon defendant's property. 
 
 So also of the publication of notice. It is the duty of the court 
 to order such publication, and to see that it has been properly made, 
 and, undoubtedly, if there has been no such publication, a court of 
 errors might reverse the judgment. 
 
 But when the writ has been issued, the property seized, and 
 that property been condemned and sold, we cannot hold that the 
 court had no jurisdiction for want of a sufficient publication of 
 notice. 
 
 We do not deny that there are cases which, not partaking of 
 the nature of proceedings in rem, when the judgment is to have 
 an effect on personal rights, as in divorce suits, or in proceedings 
 to compel conveyance, or other personal acts, in which the legisla- 
 ture has properly made the jurisdiction to depend on this publica- 
 tion of notice, or on bringing the [^Ji'o] suit to the notice of the 
 party in some other mode, when he is not within the territorial 
 jurisdiction. 
 
 It is not denied that the court had authority to issue writs of 
 attachment against the property of persons absconding the state, 
 and that such writs could issue in actions for torts. The court has 
 a general jurisdiction as to torts, and attachment is one of its reme- 
 dial agencies in such cases. Whether the writ should have been 
 issued simultaneously with the institution of the suit, or at some 
 other stage of its progress, cannot be a question of jurisdiction. 
 If it is, any other error which affected a party's rights, could as 
 well be held to affect the jurisdiction. 
 
 Such departures from the rules which should guide the court 
 in the conduct of a cause are not errors which render its action 
 void. 
 
 The case of Voorhees v. The Bank of the United States, lo 
 Peters 449, was much like this, and required stronger presumptions 
 in favor of the jurisdiction of the court to sustain its acts than the 
 one before us. 
 
JURISDICTION. 21 
 
 The defendant there, as here, held land under attachment pro- 
 ceedings against a non-resident who had never been served with 
 process or appeared in the case. No affidavit was produced, nor 
 publication of notice, nor appraisement of the property, but it was 
 condemned and sold without waiting twelve months from the return 
 of the writ, and without calling him at three different terms of the 
 court, all of which are specially required by the act regulating the 
 proceedings in Ohio, where they were had. This court held that 
 there was sufficient evidence of jurisdiction in the court which ren- 
 dered the judgment, notwithstanding the defects which we have 
 mentioned, and that they were not fatal in a collateral proceeding. 
 
 In the present case there is a sufficient writ of attachment, its 
 levy and return, the judgment of the court, on trial by jury, the 
 order to sell the property, the sale under the venditioni exponas, 
 the writ of possession, sheriff's deed and [*5i'i] actual delivery of 
 possession under order of the court. To hold them void is to over- 
 turn the uniform course of decisions in this court, to unsettle titles 
 to vast amounts of property, long held in reliance on those decisions, 
 and, in our judgment, would be to sacrifice sound principle to bar- 
 ren technicalities ; and, after a careful examination of the reported • 
 cases on this subject, we believe this to be the law, as held by the 
 courts of Tennessee. 
 
 Judgment reversed, and a new trial ordered. 
 
 Field, J., dissenting. I dissent from the judgment in this case. 
 I am of opinion that the state court of Tennessee never acquired 
 jurisdiction in the cause of Brownlow v. Reynolds. 
 
 HUNT V. HUNT. 
 72 New York 2X1, 28 Am. Rep. 129. (1878) 
 
 Divorce Suit — Jurisdiction — Residence — Collateral Attack. 
 
 Samuel Hand, for appellant. 
 
 G. Tillotson, for respondent. 
 
 The Court by Folger, J. This is a suit in equity, brought by 
 the plaintiff against the defendant, for a divorce a vinculo matri- 
 monii. She alleges that she is now his wife. She bases her right 
 to a dissolution of the marriage on an allegation of adultery com- 
 mitted by him. That the plaintiff and defendant were once mar- 
 
22 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 ried is admitted. It is also conceded, that since the marriage the 
 defendant has formed a matrimonial alliance in fact, with another 
 woman than the plaintiff. * * * The justification set up by him 
 in this suit is, that prior to the commencement of it, and prior to 
 that matrimonial alliance in fact, he had obtained a judgment 
 against the plaintiff of a dissolution of the relation of marriage once 
 existing between them, whereby he was set at liberty to marry 
 again. * * * It is claimed by the plaintiff that that judgment was 
 got by fraud upon her and upon the court, and that it is void for 
 want of jurisdiction in the court which assumed to render it, in that 
 the court had neither jurisdiction of the subject-matter nor of the 
 party defendant. 
 
 We do not think that the allegation of fraud is maintained. 
 * * * We come now to consider the question of the jurisdiction of 
 the court. * * * Power given by law to a court, to adjudge 
 divorces from the ties of matrimony, does give jurisdiction of the 
 subject-matter of divorce. Though the proceedings before that 
 court, from first to last of the testimony, in an application for 
 divorce, should show that a state of facts does not exist which 
 makes a legal cause for divorce, yet it cannot be said that the court 
 has not jurisdiction of the subject-matter; that it has not power to 
 entertain the proceeding, to hear the proofs and allegations, and to 
 determine upon their sufficiency and legal effect. * * * Jurisdic- 
 tion of the subject-matter is power to adjudge concerning the 
 general question involved, and is not dependent upon the state of 
 facts which may appear in a particular case, arising, or which is 
 claimed to have arisen, under that general question. One court 
 has jurisdiction in criminal cases; another in civil cases; each in 
 its sphere has jurisdiction of the subject-matter. Yet the facts, 
 the acts of the party proceeded against, may be the same in a civil 
 case as in a criminal case, — as, for instance, in a civil action for 
 false and fraudulent representations and deceit, and in a criminal 
 action for obtaining property by false pretenses. We should not 
 say that the court of civil powers had jurisdiction of the criminal 
 action, nor vice versa, though each had power to pass upon allega- 
 tions of the same facts. So that there is a more general meaning 
 of the phrase "subject matter," in this connection, than power to 
 
JURISDICTION. 23 
 
 act upon a particular state of facts. It is the power to act upon 
 the general, and, so to speak, the abstract question, and to deter- 
 mine and adjudge whether the particular facts presented call, for 
 the exercise of the abstract power. A suitor for a judgment. of 
 divorce may come into any court of the state in which he is domi- 
 ciled, which is empowered to entertain a suit therefor, and to give 
 judgment between husband and wife of a dissolution of their mar- 
 ried state. If he does not establish a cause for divorce, jurisdic- 
 tion to pronounce judgment does not leave the court. * * * The 
 court which rendered this judgment had lawful jurisdiction of the 
 subject-matter of divorce. The plaintiff, however, makes the point 
 against the validity of the judgment that it was void in Louisiana, 
 as wholly unauthorized by, and in conflict with, the constitution of 
 the state. And here it is, that it is of import to know what is meant 
 by the term "jurisdiction of the subject-matter." If it means no 
 more than power to act when, and not till when, a state of facts is 
 proven which exactly squares with the grounds for divorce pre- 
 scribed and established by constitutional and valid statutes, then 
 we must inquire what the constitution of a state permits in the 
 way of statutory regulation, and whether the proofs in any case 
 show that the court which in that case adjudged a divorce had suf- 
 ficient evidence before it to enable it to give judgment. In effect, 
 we must review the judgment upon the law and the facts. If the 
 term means what we have above pointed out that it does mean, 
 then we are to give credit to the judgment of a court which, having 
 power to act upon the general subject of divorce, has heard the 
 cause, and has proceeded to judgment. * * * [Here the court dis- 
 cussed the sufficiency of substituted service to obtain jurisdiction 
 of the person in divorce proceedings, and held the service good.] 
 
 It, therefore, appears that as the judgment of divorce, set up 
 by the defendant, was rendered by a court having jurisdiction of 
 the subject-matter, and of the persons of the plaintiff and defend- 
 ant, * * * it affords to the defendant a complete defense to this 
 
 suit. * * * 
 
 Judgment Affirmed. 
 
24 NATURE AND ESSENTIALS OF JUDGMENTS, 
 
 GRBBNVAULT v. FARMP:3RS AND MECHANICS' BANK. 
 2 Douglass (Michigan) 498. (1847) 
 Attachment — Defective Affidavit — Collateral Attack — Jurisdictional irre- 
 gularities. 
 
 Ejectment in the Lenawee circuit court by Daniel Greenvault 
 against the President, Directors and Company of the Farmers and 
 Mechanics' Bank. Case reserved for the opinion of this court. 
 Judgment for defendant. 
 
 Greenvault claims under attachment proceedings instituted in 
 the Lenawee circuit by C. N. Ormsby against Ed. Bissell, Sept. 
 28 and levied Oct. 9, 1838, culminating in judgment for Ormsby, 
 Greenvault, and several other creditors who filed claims, in October, 
 1839, and a sale to Greenvault thereunder. May 2, 1840. The 
 Farmers and Mechanics' Bank claims under a mortgage executed 
 to it by Bissell, Dec. 23, 1838, and since foreclosed. Bissell 
 moved the court at the April term, 1842, to set the attachment 
 and the proceedings thereon aside, because the attachment affi- 
 davit was void. The court refused this motion and allowed a new 
 attachment affidavit to be then filed, on authority of the act of 
 April 20, 1839. The tenant of the bank was in possession when 
 this action was commenced. 
 
 Baker & Millerd and E. Lawrence, for plaintiff. 
 
 T. Romeyn, for defendants. 
 
 The Court by Whipple, J. The paper purporting to be an 
 affidavit, filed with the clerk as the foundation of the attachment 
 against Bissell under which the plaintiff claims, was sworn to 
 before the clerk of the circuit court of Lenawee county, in vaca- 
 tion. * * * No provision conferring such authority is to be found 
 in the Revised Statutes of 1838 ; and it follows, as a necessary con- 
 sequence, that the act of the clerk in administering the oath, was 
 extra judicial and void. * * * 
 
 The next question to be determined, is, whether the issuing 
 of the writ, without an affidavit, was also void ; or, in other words, 
 did the authority to issue the process, depend upon the making and 
 filing of the affidavit with the clerk? This question must be 
 answered in the affirmative. * * * [^iofl 
 
 The next inquiry is, what was the legal effect of issuing the 
 
JURISDICTION. 25- 
 
 writ without making and filing the affidavit required by law, upon 
 the judgment and subsequent proceedings of the circuit court. 
 This inquiry is answered by the opinion of this court in the cases, 
 of Palmer v. Oakley, 2 Doug. Mich. 433 ; Wight v. Warner, i 
 Doug. Mich. 384, and Clark v. Holmes, Ibid. 390. In the rase 
 first named, we recognized the rule as laid down in the case of 
 Elliott V. Peirsol, 26 U. S. (i Peters') 328, 340, and the decision 
 of a court which has acquired jurisdiction of a cause, will be held 
 binding until reversed; but that if a court act without authority,, 
 its judgments will be regarded as nullities; and that the jurisdic- 
 tion of a court exercising authority over a subject matter, may be 
 inquired into in every court where the proceedings of the former 
 are relied on, by a party claiming the benefit of such proceedings. 
 The rule thus laid down, is firmly established by the numerous deci- 
 sions referred to in that case, and is recognized in all courts, where 
 the common law prevails, as too firmly settled to be shaken.. 
 Another rule, sustained by an unbroken current of decisions in this- 
 country and England is, that where a court is vested with extra- 
 ordinary powers, under a special statute prescribing its course, 
 that course ought to be exactly observed ; and the facts which give 
 it jurisdiction, ought to appear, in order to show that its proceed- 
 ings are coram judice. These principles are applicable to all 
 courts, whether of inferior or superior jurisdiction ; the only differ- 
 ence being, that in respect to inferior courts, jurisdiction must 
 appear on the face of the proceedings ; while, in regard to superior 
 courts, jurisdiction will be presumed, until the contrary is shown. 
 It will be unnecessary, at this time, to recur to the reasoning [*5o5] 
 or authorities by which these propositions are sustained, as the 
 cases to which I have referred, contain not only a full exposition of 
 our views upon those propositions, but a full citation of many of 
 the leading authorities by which they are established. 
 
 Nothing remains for us but to apply the principles laid down, 
 by us in those cases, to the questions now before us. What, then,, 
 was the character of the court, and the nature of the jurisdiction 
 it exercised in suits in attachment ? The circuit court was a court 
 of general common law jurisdiction, in both civil and criminal cases- 
 Its general powers are clearly defined by statute. It was, in other 
 
26 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 words, a court of superior jurisdiction. Do proceedings in attach- 
 ment fall within the circle of the general powers conferred upon 
 the circuit court by statute? They clearly do not. The jurisdic- 
 tion in this respect is special and extraordinary. The mode of 
 proceeding is peculiar, and in derogation of the common law. It 
 is special, because limited to cases either of absconding or non- 
 resident debtors. It is extraordinary, because the process, contrary 
 to the general rule recognized in our statutes, acts upon the prop- 
 erty and not the person of the debtor. It is, in its nature, a pro- 
 ceeding in rem, to collect a debt due from a debtor to his creditor. 
 It is in derogation of the common law, because it is a direct pro- 
 ceeding to subject the real estate, by actual sale, to the payment 
 of debts. 
 
 I have already said that there was no preliminary proof what- 
 ever to authorize the issuing of the attachment. The facts which 
 give jurisdiction, do not appear in the proceedings. In the 
 absence of such proof, what, it may be asked, is the judgment 
 which the law pronounces upon siach proceedings? There being 
 no authority to issue the process, it is of course void. Being void, 
 the service was void; the property attached never was brought 
 within [*5opj the jurisdiction of the court, and the court had no 
 authority to order its sale. In short, the circuit court never had 
 jurisdiction of the subject matter, because tlie facts necessary to 
 call that jurisdiction into exercise never existed. Can a party, 
 then, to such proceedings — one who stood in the character of a 
 plaintiff, so far as the prosecution of his own claim was concerned 
 — protect himself, under a sale made by virtue of an order entered 
 in the records of a court which never acquired jurisdiction of the 
 subject matter — a court within whose jurisdiction the property 
 never was brought? As well might it be contended that a judg- 
 ment, where the proceedings are in personam, could be sustained, 
 when it affirmatively appears in the record, that the person to be 
 affected by the judgment never was brought within the jurisdic- 
 tion of the court by whom it was rendered. The distinction is 
 well defined between cases where jurisdiction is acquired, and is 
 improvidently exercised, and cases where jurisdiction never was 
 acquired. In the first class of cases the judgment will bind until 
 
JURISDICTION. 27 
 
 reversed. In the other, the judgment is a mere nulUty; it is as 
 though it had never been entered. Ip the first class, the record 
 cannot, in general, be impeached, in the last it may be im- 
 peached, especially if it shows on its face that jurisdiction 
 was usurped. Acts done by a court, without authority, are 
 equally as void, and for the same reason, as acts done without 
 authority by either the executive or legislative departments 
 of the government. If either of these departments usurp an 
 authority not conferred by the constitution or laws of the state, and 
 a party seeks to shelter himself under such usurped authority, in 
 a judicial proceeding, the court before whom such a proceeding is 
 pending, would not hesitate to declare all acts done under such 
 authority void. If not, then we should have to submit quietly to 
 the well merited rebuke, that rights the most sacred are no [*5ro] 
 longer guarded and protected by just laws enacted by our consent; 
 but are left to the tender mercies of a man or set of men, who, 
 although acting under color of authority, are mere usurpers. 
 Apply this reasoning to the case before us. The powers possessed 
 over the person and property of the citizen, by the judicial tribunals, 
 are as accurately defined as are the powers conferred upon the 
 other departments of the government. In the particular case 
 before us, the circuit court of Lenawee county was authorized, by 
 a judicial proceeding, to divest one person of his property and 
 transfer it to another, under a certain state of facts. The facts, 
 Tiowever, which authorized the act to be done, did not exist ; never- 
 theless, the court proceed to do the act, by which, under color of 
 legal proceedings, one man is divested of his estate, and it is trans- 
 ferred to another. What difference, it may be asked, is there 
 between such an act, and an act of the legislature which should 
 'declare that the property of A. should become the property of B. 
 No difference in principle exists between the two cases. In the 
 •one case, it would be regarded as a bold and palpable usurpation ; 
 in the other, the usurpation would appear less bold, although more 
 dangerous, because partially concealed beneath the solemn drapery 
 with which judicial proceedings are invested. The theory of our 
 government contemplates that its powers should be distributed, and 
 administered by three departments, neither of which should exer- 
 
28 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 cise powers conferred upon another. This principle, so necessary 
 to the existence of free government, should be carefully observed ; 
 yet, it is to be regretted, that, to suit the emergencies of particular 
 cases, courts of justice have sometimes assumed legislative powers. 
 Not contented with expounding the law, they have resolved them- 
 selves into legislative bodies, and made laws adapted to the sup- 
 posed equities of particular cases. The opinions of men are thus 
 [*5ii] substituted for the will of the community expressed through 
 the legislature. In the case before us, the legislature have thought 
 proper to give to the circuit court jurisdiction in certain cases, and 
 upon certain conditions. To call this jurisdiction into exercise, 
 it must be shown that the conditions upon which it depended have 
 been fulfilled ; and where this jurisdiction is special and extraor- 
 dinary, not falling within the line which circumscribes the general 
 powers of the court, it would seem that the record itself, should 
 show affirmatively the existence of all the facts necessary to call 
 into action the special powers thus granted. 3 Blackf. R. 230. 
 
 Much reliance was placed upon the case of Voorhees v. Bank 
 United States, 35 U. S. (10 Peters) 449, 473. But the distinc- 
 tion between that case and the one before us is so obvious as to ren- 
 der it impossible to use it as an authority, i. In that case, Voor- 
 hees was the alienee of Cutter, who was the defendant in the 
 attachment, by a conveyance executed long after the judgment in 
 attachment. Cutter, then, stood in no better plight than Voor- 
 hees would have done, had he brought suit against the bank. 2. It 
 was competent for Voorhees to have brought error upon the judg- 
 ment, which he failed to do. In the case before us, the defendants 
 could not have availed themselves of this remedy to reverse the 
 proceedings below. 3. Stanley, under whom the Bank of the Uni- 
 ted States purchased, was regarded in the light of an innocent pur- 
 chaser ; whereas, in the case before us, the plaintiff was a party tO' 
 the proceedings in attachment, and was bound to see that the court 
 had jurisdiction. The Supreme Court of the United States decided 
 in that case, that from what appeared on the face of the proceed- 
 ings, it might be fairly presumed that all the facts necessary to give 
 jurisdiction to the court of common pleas of Ohio, were shown 
 to that court before the rendition of the judgment confirming the 
 
JURISDICTION. 29 
 
 acts of the [*5i^] auditors. In the case before us, nothing is left 
 to implication. The verdict sets out all the proceedings, from 
 which it manifestly appears that there was no affidavit proving the 
 facts necessary to confer authority upon the circuit court to issue 
 the process. * * * 
 
 It is not to be denied, that some of the views expressed by Mr. 
 Justice Baldwin, touching the conclusiveness of judgments ren- 
 dered in attachment causes, differ essentially from those expressed 
 hy other judges and courts of great respectability. * * * 
 
 The last question to be considered, is, as to the legal [*5fj] 
 €fifect of the filing a new affidavit, by the plaintiff, by virtue of the 
 order made at the April Term, 1842, of the circuit court. 
 
 First : Was it competent to grant the order ? The act of 1839 
 provides, that "no writ shall be quashed on account of any defect in 
 the affidavit on which the same issued : Provided, That the plaint- 
 iff, his agent, or attorney shall, whenever objection may be made, 
 file such affidavit as is required by law." S. L. 1839, p. 228, § 36. 
 This law, it is to be observed, was not in force at the time the paper 
 purporting to be an affidavit, and upon which the attachment was 
 issued, was filed. Do the words of the act authorize a new affidavit 
 ±0 be filed, where the original affidavit was void; or, in other 
 words, where no affidavit was made or filed, as contemplated by 
 the statute ? The amendatory act speaks of defects in the affidavit 
 upon which the writ issued; from which it results, by necessary 
 implication, that defects could not be supplied, in cases where no 
 affidavit whatever was filed. It evidently contemplated cases where 
 affidavits were filed, but which, through ignorance, inadvertence, 
 'Or mistake, did not embody all the facts necessary to authorize the 
 issuing of the writ ; but it could not have been the intention of the 
 legislature to authorize an affidavit to be filed after judgment was 
 rendered and the property attached sold, and thus legalize acts 
 which were absolutely void. The language, in the latter part of 
 the act, is conclusive upon this point. It authorizes a party to "file 
 .such affidavit as is required by law;" implying that the original 
 affidavit was not such as was required by law. In the case before 
 us, if the construction contended for by the plaintiff, be correct, 
 ;an affidavit filed three years after the rendition of the judgment. 
 
30 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 would have the effect of rendering a proceeding legal, which was 
 before that time a mere nullity ; — of giving jurisdiction to a court, 
 which, at the time the [*5/../] writ issued and the judgment was 
 rendered, had no jurisdiction. Such a power the legislature would 
 hardly exercise ; and there is nothing in the amendatory act, from 
 which it can, with any show of reason, be contended that such was 
 the intention of the legislature. 
 
 But, supposing for a moment, that the legislature might, in 
 the plenitude of its authority, exercise such a power, and that the 
 act of 1839 warrants the construction contended for by the plaintiff, 
 how could it affect the rights of the present defendants? The 
 filing, with the register, of the writ of attachment, did not operate 
 as constructive notice to the defendants, who purchased soon after 
 the date of the' writ, or create a lien on the premises, for the reason 
 that the writ itself was void. To affect a party with notice, the 
 deed, or in this case, the writ, must be such an one as in the case of 
 a deed, the law authorizes to be registered, or in the case of a writ, 
 it must be a writ, the issuing of which is authorized by law. The 
 special verdict does not find the defendants had actual notice of the 
 pendency of the proceedings in attachment. There being, then, 
 neither actual nor constructive notice, how could the rights of the 
 defendants be affected by an order of the court made three years 
 after they had acquired a valid title to the premises ? No ex parte 
 legislation, or order of the court founded upon such legislation, 
 could, under the circumstances stated in the special verdict, have 
 the effect claimed for it, viz : that of divesting an estate acquired 
 by the defendants from Bissell, and transferring it to the plaintiff 
 in this case. The original proceedings in attachment, then, being 
 void, and no subsequent legislation, or orders of the court, having 
 applied remedies sufficiently potent to cure those proceedings of the 
 infirmities which beset them, it follows, that the judgment on the 
 special verdict must be rendered for the defendants. 
 
 Certified accordingly. 
 
JURISDICTION. 31 
 
 WELLS V. AMERICAN EXPRESS CO. 
 55 Wisconsin 23, 12 N. W. 441, 42 Am. Rep. 695. (1882) 
 
 Garnishment — Jurisdiction — Effect of Payment under Garnishment as. 
 a Defense — Proper IVlanner of Pleading — Necessary Proof — Pre- 
 sumption of Regularity — Proving Contents of Lost Records. 
 
 Action by Wells against American Express Company for 
 money sent him by express and not delivered. From judgment 
 for plaintiff defendant brings error. Affirmed. 
 
 The same case on former appeals is reported in 44 Wis. 342, 
 and 49 Wis. 224. Among other defenses the defendant set up 
 payment under garnishment proceedings. The money was con- 
 signed to "Wells & Cartwright," but belonged to Wells alone, and 
 the garnishments were in suits against Cartwright. 
 
 Finches, Lynde & Miller, for appellants. 
 
 Fish & Dodge, for appellee. 
 
 The Court by Orton, /. * * * The plaintiff is entitled to re- 
 cover, unless something was done which was tantamount to a de- 
 livery of the money to Cartwright before this claim of the plaintiff 
 was set up and demand made by him for it as his own property, 
 exclusive of Cartwright. This leads to the question whether this 
 money has been subjected to the garnishment of the defendant in 
 cases or on judgment against Cartwright, before this claim and 
 demand of the plaintiff for all of the money as his own, which is 
 the only pretense of its delivery to the consignees. [55] * * * 
 The record evidence in this case, which consists exclusively of the 
 docket entries of the justice of the peace who entertained juris- 
 diction of the garnishee proceedings against the defendant, must 
 stand or fall by itself. It seems that the papers are lost or 
 cannot be found, and there was no attempt to prove their contents. 
 The entries in the docket of a justice showing appearance of the 
 defendant would be sufficient to warrant the judgment in ordinary 
 [34] common law causes. But the proceeding of garnishment is 
 special and statutory, and in derogation of the common law. It is 
 a proceeding by which the debtor is compelled to pay another than 
 his creditor, and the right of the creditor is transferred to another 
 against his will ; and this can only be done by force of the statute 
 strictly pursued. It is in the nature of a proceeding m rem, by 
 
32 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 which the plaintiff is sought to be invested with the right to appro- 
 priate to the satisfaction of his claim against the defendant a debt 
 due from the garnishee to him. This being the nature of the pro- 
 ceeding, the principle is elementary that jurisdiction of the court 
 therein must afHrmatively appear. Robertson v. Kinkhead, 26 
 Wis. 560 ; Supervisors of Crawford Co. v. Le Clerc, 3 Pin. 325 ; 
 In re Booth and Rycraft, 3 Wis. 157. 
 
 The late learned and eminent chief justice of this court 
 (Ryan), in Steen v. Norton, 45 Wis. 412, uses this language in 
 Tespect to this proceeding: "It is not the policy of the statute to 
 place this anomalous action, like ordinary actions, at the mere dis- 
 cretion of the plaintiff, or to give justices of the peace unqualified 
 jurisdiction of it, as in ordinary actions, where every person can 
 become a plaintiff, have process, and put the justice's jurisdiction 
 in motion on demand. The plaintiff in garnishee proceedings, as 
 in attachment as mesne process, replevin, and the like, can put in 
 motion the jurisdiction of the justice only by complying with statu- 
 tory prerequisites. And the justice takes jurisdiction of the pro- 
 ceeding only upon the plaintiff's compliance with the prelimi- 
 naries which the statute makes the condition of jurisdiction. In 
 -order to entitle a plaintiff to have recourse to the process of gar- 
 nishment, in order to confer on the justice jurisdiction to entertain 
 it, he must first make the affidavit required by the statute. . . . 
 An affidavit materially defective stands as no affidavit. All pro- 
 ceedings founded on a materially defective affidavit are coram 
 non judice. And no appearance, no submission of the garnishee, 
 
 can operate to [55] waive the defect of jurisdiction He 
 
 cannot voluntarily appear and substitute his creditor's creditor for 
 his own, because that goes to jurisdiction of the subject, not to 
 jurisdiction of his person." 
 
 In most and perhaps all of the cases of garnishment sought 
 to be introduced in evidence in defense of this action, there is an 
 ■entry by the justice that an affidavit was made and filed. What 
 the affidavit contained does not appear. The affidavit, being the 
 prerequisite of jurisdiction, must not only appear upon the rec- 
 ords, but be strictly sufficient ; and, not appearing, no jurisdiction 
 whatever is shown in the justice. This is a fatal objection to the 
 
JURISDICTION. 33 
 
 proceedings, and lihe icircuit court properly refused to admit them 
 in evidence. * * * [*.3<i] * * * 
 
 The judgment of the circuit court is affirmed. 
 
 Lyon, J., took no part. 
 
 The appellant moved for a rehearing ; and the following opin- 
 ion was filed May lo, 1882: 
 
 The Court by Orton, /. * * * [*^y] * * * All of these 
 •docket entries were ruled out, presumably on these grounds — 
 [that the jurisdiction of the justice did not appear ]. No other 
 ■evidence, of record or otherwise, was offered of the garnishee pro- 
 'Ceedings, and this was the only point in respect to such proceed- 
 ings before this court on the appeal. The ruling of the circuit 
 •court was sustained on the ground that the jurisdiction of the jus- 
 tices in the proceedings did not appear. It is now complained and 
 contended that the question of jurisdiction was not raised, and 
 was therefore waived. That objection is sufficiently answered by 
 the foregoing references. But, aside from this specific objec- 
 tion, the docket entries were clearly incompetent without first 
 showing jurisdiction, and such jurisdiction was not shown by such 
 entries. In the brief of the learned counsel of the respondent the 
 point was distinctly made that the proceedings, so far as sought to 
 Tdc shown, were void for want of jurisdiction. This point was an- 
 swered in the brief ,of the learned counsel of the appellant as fol- 
 lows : "The defendant was adjudged by the justice's court to pay 
 the money to the creditors suing out the garnishees. The papers 
 are all lost. There is nothing left but docket entries ; nor does it 
 matter, as we see, whether the justice's court was right or wrong 
 in its decision. The money was subject to garnishment." 
 
 No objection was made, it is complained, that the court had 
 no jurisdiction. We have seen that such objection was distinctly 
 made, and more than once. No objection was made to the intro- 
 duction of the papers in the garnishee proceedings, including the 
 affidavit, by which only jurisdiction could be shown, because they 
 were not offered, and there was no offer to prove their contents 
 if lost. It would seem that the contention of the learned counsel 
 of the appellant arises from a misapprehension of the record, and 
 from not remembering that the stipulation, which probably dis- 
 
S4 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 penses [*38] with the proof of the garnishee proceedings beyond 
 the docket entries, had been withdrawn previous to the last trial. 
 
 ^ ^ ^ 
 
 By the Court. — The motion for reargument is denied, with 
 $25 costs. 
 
 PARSONS V. PARSONS. 
 "101 Wisconsin 76, 70 Am. St. Rep. 894, 77 N. W. 147. (1898) 
 
 Adoption of Children — Jurisdiction — Notice to Parent — Estoppel. 
 
 Petition by Cynthia A. Parsons in the county court of Fond 
 du Lac county for an order vacating an order for adoption there- 
 tofore entered by said court on the petition of the present petition- 
 er's husband, who has since died. The county court having ordered, 
 the present petition dismissed, the petitioner appealed to the circuit 
 court, where the order was affirmed, and she now appeals to this 
 court. Affirmed. 
 
 Edivard S. Bragg, for appellant. 
 
 Gary & Forward, for respondent. 
 
 The Court by Marshall, J. This case turns on whether the 
 county court obtained jurisdiction to make the order of adoption. 
 It is challenged solely upon the ground that the consent of the liv- 
 ing parent, the father, was not given, and there was no adjudica- 
 tion, on notice of the absent parent, of the fact of abandonment, nor 
 any consent given in place of that of [*7p] the alleged abandoning 
 parent by the next of kin, nor by a guardian or a suitable person 
 appointed by the .court. There is no claim but that the petition, 
 in form, complies with the statute. It alleges every fact which 
 the statute requires, was made by the proper persons, and was veri- 
 fied by them. True, it does not appear that notice was given to 
 the father, and, if that were requisite to the jurisdiction of the 
 court to take any steps in the proceedings, the order of adoption 
 wa's void. On this subject we are furnished with a learned dis- 
 cussion of the statute and a citation of many authorities on both 
 sides of the controversy, in some of which the subject is considered 
 at great length, but if the statute itself furnishes a plain solution 
 of the question we have no need to go elsewhere to support it. 
 
 The statute to be considered is § 4022, R. S. 1878, which reads 
 as follows : "No such adoption shall be made without the written 
 
JURISDICTION. 35 
 
 consent of the living parents of such child, unless the court shall 
 find that one of the parents has abandoned the child, or gone to 
 parts unknown." Thus it will be seen that, upon the fact being 
 established that the living parent has abandoned his child, he is 
 deemed by the statute to have thereby relinquished all parental 
 right to be consulted in respect to the child's welfare, and his con- 
 sent to the adoption is therefore dispensed with. The term "aban- 
 don" obviously means no more than neglect or refusal to perform 
 the natural and legal obligations of care and support which par- 
 ents owe to their children. The fact of abandonment, judicially 
 determined, was essential to the jurisdiction ; not essential that it 
 should be determined on proper evidence, necessarily, or in accord- 
 ance with the truth, because mere error in that regard does not 
 affect jurisdiction. If jurisdiction be obtained to determine a fact, 
 its determination wrong or on insufficient or improper evidence is 
 immaterial on the question of legal right to proceed judicially to 
 the next step. That is deemed to be elementary. Now, that [*8o] 
 the fact of abandonment was judicially determined in this proceed- 
 ing must be conceded. True, there was no evidence, so far as 
 appears, but the verified petition, and the allegation of abandonment 
 was on information and belief. That was mere hearsay, but that 
 fact goes merely to the sufficiency of proof, which, as stated, may 
 involve error, but not jurisdictional error. A judicial determina- 
 tion may be contrary to conclusive evidence or legal evidence, or 
 without any evidence, yet cannot be impeached for want of juris- 
 diction. Fan Fleet, Collateral Attack, §§ 693, 695. That rule 
 applies to all judicial proceedings. It has often been invoked in 
 proceedings like this. As for example in Van Matre v. Sankey, 
 148 111. 536, 39 Am. St. 196, 36 N. E. 628; it was held that if the 
 court has jurisdiction to act at all, however erroneous its action, 
 it must still stand until reversed on appeal. 
 
 It follows that the only remaining question on this branch of 
 the case is, did the court have jurisdiction to act on the subject of 
 the alleged abandonment, in the absence of notice, actual or con- 
 structive, to the parent? That must be answered in the affirma- 
 tive. When the proceedings in question were had the statute did 
 not require notice, actual or constructive, to a parent who had 
 
36 NATURE AND ESSENTIALS OF JUDGMENTS. '' 
 
 abandoned his child. That was unquestionably the legislative idea. 
 Resort to rules of liberal construction is not necessary to reach that 
 conclusion. But if the statute would admit of two constructions, 
 the result would be the same. We would feel bound to repudiate 
 the doctrine of strict construction contended for vigorously by 
 appellant. The adoption statute is a humane provision which looks 
 to the interests of children primarily. That is its controlling idea 
 and policy. Therefore, every reasonable intendment should be 
 indulged in, in case of doubt, in the line of promoting that object. 
 Other courts have taken the same vievvf, but, if it were otherwise, 
 our duty to carry out an obvious legislative intent would be the 
 same. That the statute was designed to enable [*8i] those who 
 are not blessed with the love and society of children in the family 
 to acquire it by taking into the family fold and giving a home to 
 those in need of such shelter, protection, and -care, thus creating 
 mutual obligations, promotive of mutual happiness and the moral 
 well-being of society, is most clear. It has made, and is making, 
 a multitude of happy homes, happy parents, happy children, and 
 valuable members of society, and no narrow construction should be 
 indulged in that will tend to defeat a result so obviously intended 
 and in every way so beneficial. 
 
 The conclusion reached as to the necessity of notice to the 
 .•absent and abandoning parent, is but affirming what was clearh' 
 held, inferentially, in Schiltz v. Roenitc, 86 Wis. 31. The court 
 there, while holding that the order was not conclusive upon the 
 father on the fact of abandonment, who had no notice of the pro- 
 ceedings, said that it might, however, well be held valid as to the 
 child, obviously meaning because the court had jurisdiction that 
 far, which of course included jurisdiction of the petitioner who 
 commenced the proceedings. That such was the intention of the 
 court, as understood by the legislative department of the govern- 
 ment, is evidenced by the fact that subsequently a proviso was 
 : added to the section in the following words: "Provided, that 
 unless the living parent or parents of a minor consent to such adop- 
 tion, it shall be the duty of the court having jurisdiction of the 
 proceedings, upon the filing of any petition for adoption, by order 
 to appoint a time and place for hearing such petition and cause 
 
JURISDICTION. 37 
 
 notice of such time and place to be given to such parent or parents 
 by personal service of said notice on such parent or parents at least 
 ten days before the hearing or by publication thereof in a news- 
 paper at least three weeks successively prior to said hearing, and 
 when notice is duly given as herein provided the parent of any 
 minor shall be bound by the order of adoption as fully as though 
 he had consented thereto. ' (Laws of 1895, ch. 18.) [*82] That 
 notice to the parent is not requisite to a valid determination of the 
 fact of abandonment as regards all other parties to the proceedings, 
 has been held in numerous cases elsewhere, some of which are cited 
 in the briefs of counsel. Nugent v. Powell, 4 Wyo. 173, 62 Am. 
 St. 17; Van Fleet, Collateral Attack. § 408; Barnard v. Barnard, 
 iig 111. 92. 
 
 It is further contended by appellant that the county court did 
 not have jurisdiction, because consent to the adoption was not given 
 by the next of kin. Whether the person who signed as next of 
 kin was such in fact was one of the questions which the court had 
 jurisdiction to determine. It was not requisite to jurisdiction that 
 it should be determined rightly. The trite saying applies, that 
 every court has jurisdiction to err in any case, but mere error in 
 determining something the court has a right to determine is irre- 
 mediable by challenge to the jurisdiction of the court. That the 
 county judge had jurisdiction to determine that W. S. Russell was 
 next of kin to the adopted child, cannot reasonably be questioned. 
 That the fact was judicially determined appears upon the face of 
 the order. True, it was determined by the verified petition only, 
 so far as appears by anything 'in the proceedings, but, as stated 
 before, that was not material to the jurisdiction. If determined 
 without any evidence whatever the result would be the same. No 
 doubt it was competent for the county judge to have required other 
 evidence than the petition, but he was not bound to do so. If sat- 
 isfied of the fact by the petition itself, whether satisfied rightly or 
 wrongly, it was sufficient for the validity of the pi-oceedings. The 
 rule on that subject was definitely stated by Mr. Justice Winslow 
 in Cody v. Cody, 98 Wis. 445, to the effect that three things only 
 are necessary to give jurisdiction in an action or proceeding : First, 
 a tribunal legally organized; second, jurisdiction of the subject- 
 
38 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 matter; third, jurisdiction of the person ; and these things all being 
 present, jurisdiction continues, however erroneous the proceedings 
 f*6'jj leading up to the result finally obtained, unless one of the 
 elements be in the meantime lost. 
 
 So a conclusion is reached, on the merits of the ca53, tliat the 
 decision of the circuit court was right and must be afifirnied. But 
 if we were to go further, the result would not be otherwise. The 
 proceedings to avoid the judgment of adoption are clearly of an 
 equitable nature, and after the lapse of many years, during which 
 time the status of the subject of adoption has been recognized as 
 legally fixed by the judgment of the county court, by all parties to 
 the proceedings, one of those parties on whose motion the judg- 
 ment was rendered is in no position to appeal to the equity powers 
 of the court to declare it void. The plainest principles of estoppel 
 apply to the situation. Appellant petitioned for the judgment. It 
 was entered on her motion. The person most interested, the chdd, 
 was a ward of the court, and its status for life was eatirely and 
 irrevocably changed by the result of the proceedings if they were 
 valid. Their validity was recognized by the appellant till she 
 became pecuniarily interested in changing her position. Clearly, 
 she cannot be aided by a court of equity to do that to the injury of 
 the person she was instrumental in locating in her family as her 
 adopted son. 
 
 By the Court — The judgment of the circuit court is affirmed. 
 
 WENDSOR V. MoVBtGH. 
 93 United States (3 Otto) 274. (1876) 
 
 Jurisdiction — Collateral Attack — Effect of Irregularities — Right to 
 
 Hearing. 
 
 5'. F. Beach, for the plaintiff in error. 
 
 Philip Phillips and John Hoivard, contra. 
 
 The Court by Field, J. This was an action of ejectment to 
 recover certain real [*^75] property in the city of Alexandria, in 
 the state of Virginia. It was brought in the corporation court of 
 that city, and a writ of error from the court of appeals of the 
 state to review the judgment obtained having been refused, the 
 case was brought here directly by a writ of error from this court. 
 
JURISDICTION. 39 
 
 Authority for this mode of procedure will be found stated in the 
 case of Grcgor v. McVeigh, 23 Wallace 294. 
 
 The plaintiff in the corporation court proved title in himself 
 to the premises in controversy, and consequent right to their im- 
 mediate possession, unless his life-estate in them had been divested 
 by a sale under a decree of condemnation rendered in March, 
 1864, by the District Court of the United States for the Eastern 
 District of Virginia, upon proceedings for their confiscation. The 
 defendant relied upon the deed to his grantor executed by the 
 marshal of the district upon such sale. 
 
 The proceedings mentioned were instituted under the act of 
 Congress of July 17, 1862, "to suppress insurrection, to punish 
 treason and rebellion, to seize and confiscate the property of reb- 
 els, and for other purposes." 
 
 In July, 1863, the premises in controversy were seized by the 
 marshal of the district, by order of the district attorney, acting 
 under instructions from the attorney-general. In August fol- 
 lowing, a libel of information against the property was filed in 
 the name of the United States, setting forth that the plaintiff in 
 this case was the owner of the property in question ; that he had, 
 since the passage of the above act, held an office of honor and 
 trust under the government of the so-called Confederate States, 
 and in various ways had given aid and comfort to the rebellion ; 
 that the property had been seized in pursuance of the act in com- 
 pliance with instructions from the attorney-general, and, by 
 reason of the premises, was forfeited to the United States, and 
 should be condemned. It closed with a prayer that process of 
 monition might issue against the owner or owners of the prop- 
 erty and all persons interested or claiming an interest therein, 
 warning them at some early day "to appear and answer" the libel; 
 and, as the owner of the property was a non-resident and absent, 
 that an order of publication in the usual form be also made. Upon 
 this libel the district judge ordered process of monition to issue 
 as prayed, and designated [*2/6] a day and place for the trial of 
 the cause, and that notice of the same, with the substance of the 
 libel, should be given by publication in a newspaper of the city, 
 and by posting at the door of the court-house. The process of 
 
40 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 monition and notice were accordingly issued and published. Botli 
 described the land and mentioned its seizure, and named the day 
 and place fixed for the trial. The monition stated that at the 
 trial all persons interested in the land, or claiming an interest, 
 might "appear and make their allegations in that behalf." The 
 notice warned all persons to appear at the trial, "to show cause 
 why condemnation ahould not be decreed, and to intervene for 
 their interest." 
 
 The owner of the property, in response to the monition and 
 notice, appeared by counsel, and filed a claim to the property 
 and an answer to the libel. Subsequently, on the loth of March, 
 1864, the district attorney moved that the claim and answer and 
 the appearance of the respondent by counsel be stricken from the 
 files, on the ground that it appeared from his answer that he 
 was at the time of filing the same "a resident within the city of 
 Richmond, within the Confederate lines, and a rebel." On the 
 same day the motion was granted, and the claim and answer 
 ordered to be stricken from the files. The appearance of the 
 respondent was by his answer. The court immediately entered 
 its sentence and decree, condemning the property as forfeited to 
 the United States, reciting that, the usual proclamation having 
 been made, the default of all persons had been duly entered. 
 The decree ordered the issue of a venditioni exponas for the sale 
 of the property, returnable on the sixteenth day of the following 
 April. At the sale under this writ the grantor of the defendant 
 became the purchaser. 
 
 The question for determination is, whether the decree of 
 condemnation thus rendered, without allowing the owner of the 
 property to appear in response to the monition, interpose his 
 claim for the property, and ansA\'er the libel, was of any validity. 
 In other words, the question is, whether the property of the plain- 
 tiff could be forfeited by the sentence of the court in a judicial 
 proceeding to which he was not allowed to appear and make 
 answer to the charges against him, upon the allegation of which 
 the forfeiture was demanded. 1*2^/] 
 
 There were several libels of information filed against the 
 property of the plaintiff at the same time with the one here men- 
 
JURISDICTION. 41 
 
 tioned. They were identical in their allegations, except as to 
 the property seized, and the same motion to strike from the files 
 the appearance, claim, and answer of the respondent was made 
 in each case, and on the same day, and similar orders were entered 
 and like decrees of condemnation. One of these was brought 
 here, and is reported in the nth of Wallace. In delivering the 
 unanimous opinion of this court, upon reversing the decree in the 
 case, and referring to the order striking out the claim and answer, 
 Mr. Justice Swayne said : "The order in effect denied the respond- 
 ent a hearing. It is alleged he was in the position of an aliert 
 enemy, and could have no locus standi in that forum. If assailed 
 there, he could defend there. The liability and right are insepar- 
 able. A different result would be a blot upon our jurisprudence 
 and civilization. We cannot hesitate or doubt on the subject. 
 It would be contrary to the first principles of the social compact 
 and of the right administration of justice." McVeigh v. United 
 States, 78 U. S. (11 Wall.) 259, 267. 
 
 The principle stated in this terse language lies at the found- 
 ation of all well-ordered systems of jurisprudence. Wherever 
 one is assailed in his person or his property, there he may defend, 
 for the liability and the right are inseparable. This is a principle 
 of natural justice, recognized as such by the common intelligence 
 and conscience of all nations. A sentence of a court pronounced 
 against a party without hearing him, or giving him an opportun- 
 ity to be heard, is not a judicial determination of his rights, and 
 is not entitled to respect in any other tribunal. 
 
 That there must be notice to a party of some kind, actual or 
 constructive, to a valid judgment affecting his rights, is ridmitted. 
 Until notice is given, the court has no jurisdiction in any case 
 to proceed to judgment, whatever its authority may be, by the 
 law of its organization, over the subject-matter. But notice is 
 only for the purpose of affording the party an opportunity of 
 being heard upon the claim or the charges made ; it is a summons 
 to him to appear and speak, if he has any thing to say, why the 
 judgment should not be rendered, A denial to a party of the 
 benefit of a notice would be in effect to [*2/8] deny that he is 
 entitled to notice at -all, and the sham and deceptive proceeding 
 
42 NATURE AND ESSENTIALS OF JUDGMENTS 
 
 had better be omitted altogether. It would be like saying to a 
 party, Appear, and -you shall be heard; and, when he has ap- 
 peared, saying, Your appearance shall not be recognized, and 
 you shall not be heard. In the present case, the district court 
 not only in effect said this, but immediately added a decree of 
 condemnation, reciting that the default of all persons had been 
 duly entered. It is difficult to speak of a decree thus rendered 
 with moderation ; it was in fact a mere arbitrary edict, clothed in 
 the form of a judicial sentence. 
 
 The law is, and always has been, that whenever notice or 
 citation is required, the party cited has the right to appear and be 
 heard ; and when the latter is denied, the former is ineffectual 
 for any purpose. The denial to a party in such a case of the 
 right to appear is in legal effect the recall of the citation to him. 
 The period within which the appearance must be made and the 
 right to be heard exercised is, of course, a matter of regulation, 
 depending either upon positive law, or the rules or orders of the 
 court, or the established practice in such cases. And if the ap- 
 pearance be not made, and the right to be heard be not exercised, 
 within the period thus prescribed, the default of the party prose- 
 cuted, or possible claimants of the property, may, of course, be 
 entered, and the allegations of the libel be taken as true for the 
 purpose of the proceeding. But the denial of the right to appear 
 and be heard at all is a different matter altogether. 
 
 The position of the defendant's counsel is, that, as the pro- 
 ceeding for the confiscation of the property was one /;( rem, the 
 court, by seizure of the property, acquired jurisdiction to deter- 
 mine its liability to forfeiture, and consequently had a right to 
 decide all questions subsequently arising in the progress of the 
 cause ; and its decree, however erroneous, cannot, therefore, be 
 collaterally assailed. In supposed support of this position, opinions 
 of this court in several cases are cited, where similar language is 
 used respecting the power of a court to pass upon questions arising 
 after jurisdiction has attached. But the preliminary proposition 
 of the counsel is not correct. The jurisdiction acquired by the 
 court by seizure of the res was not to condemn the property with- 
 out further proceedings. The physical [*-?7p] seizure did not of 
 
JURISDICTION. 43 
 
 itself establish the allegations of the libel, and could not, therefore, 
 authorize the immediate forfeiture of the property seized. A sen- 
 tence rendered simply from the fact of seizure would not be a 
 judicial determination of the question of forfeiture, but a> mere 
 arbitrary edict of the judicial officer. The seizure in a suit in rem 
 only brings the property seized within the custody of the court, 
 and informs the owner of that fact. The theory of the law is, 
 that all property is in the possession of its owner, in person or by 
 agent, and that its seizure will, therefore, operate to impart notice 
 to him. Where notice is thus given, the owner has the right to 
 appear and be heard respecting the charges for which the forfeit- 
 ure is claimed. That right must be recognized and its exercise 
 allowed before the court can proceed beyond the seizure to judg- 
 ment. The jurisdiction acquired by the seizure is not to pass 
 upon the question of forfeiture absolutely, but to pass upon that 
 question after opportunity has been afforded to its owner and 
 parties interested to appear and be heard upon the charges. To 
 this end some notification of the proceedings, beyond that arising 
 from the seizure, prescribing the time within which the appear- 
 ance must be made, is essential. Such notification is usually 
 given by monition, public proclamaition, or publication in some 
 ■other form. The manner of the notification is immaterial, but 
 the notification itself is indispensable. 
 
 These views find corroboration in the opinion of Mr. Justice 
 Story, in the case of Bradstrcct v. Neptune Insurance Co., 3 
 Sumn. 600, Fed. Cas. No. 1,793. I" that case, the action was 
 upon a policy of insurance upon a vessel, the declaration alleging 
 its loss by seizure of the Mexican government. The defendants 
 -admitted the seizure, but averred ,that it was made and that the 
 vessel was condemned for violation of the revenue laws of Mex- 
 ico, and to prove the averment produced a transcript of the record 
 of the proceedings of the Mexican court against the vessel, and 
 of the decree of condemnation. Among the questions considered 
 by the court was the effect of that record as proof of the laws 
 of Mexico, and of the jurisdiction of the court and the cause of 
 seizure and condemnation. After stating that the sentence of 
 a foreign court of admiralty and prize in rem was in general 
 
44 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 conclusive, not only in respect to the parties in interest, but 
 1*280] also for collateral purposes in collateral suits, as to the 
 direct matter of title and property in judgment, and as to the- 
 facts on which the tribunal professed to proceed, Mr. Justice 
 Story said, that it did not strike him that any sound distinction 
 could be made between a sentence pronounced in rem by a court 
 of admiralty and prize, and a like sentence pronounced by a muni- 
 cipal court upon a seizure or other proceeding in rem; that in. 
 each the sentence was conclusive as to the title and property, and,, 
 it seemed to him, was equally conclusive as to the facts on which 
 the sentence professed to be founded. But the learned judge 
 added, that it was an essential ingredient in every case, when, 
 such effect was sought to be given to the sentence, that there 
 should have been proper judicial proceedings upon which to 
 found the decree; that is, that there should have been some cer- 
 tain written allegations of the offence, or statement of the charge 
 for which the seizure was made, and upon which the forfeiture 
 was sought to be enforced; and that there should be some- 
 personal or public notice of the proceedings, so that the parties 
 in interest, or their representatives or agents, might know what 
 the offence was with which they were charged, and might have 
 an opportunity to defend themseves, and to disprove the same. 
 "It is a rule," said the learned judge, "founded in the first prin- 
 ciples of natural justice, that a party shall have an opportunity 
 to be heard in his defence before his property is condemned, and 
 that charges on which the condemnation is sought shall be speci- 
 fic, determinate, and clear. If a seizure is made and condemna- 
 tion is passed without the allegation of any specific cause of for- 
 feiture or offence, and without any public notice of the proceed- 
 ings, so that the parties in interest have no opportunity of appear- 
 ing and making a defence, the sentence is not so much a judicial 
 sentence as an arbitrary sovereign edict. It has none of the ele- 
 ments of a judicial proceeding, and deserves not the respect of 
 any foreign nation. It ought to have no intrinsic credit given 
 to it, either for its justice or for its truth, by any foreign tribunal- 
 It amounts to little more, in common sense and common honesty, 
 than the sentence of the tribunal which first punishes and then' 
 
JURISDICTION. 45 
 
 hears the party, — castigatque , auditque. It may be binding upon 
 the subjects of that particular nation. But, upon the [*^57] eter- 
 nal principles of justice, it ought to have no binding obligation 
 upon the rights or property of the subjects of other nations ; for 
 it tramples under foot all the doctrines of international law, and 
 is but a solemn fraud, if it is clothed with all the forms of a judi- 
 cial proceeding." 
 
 In another part of the same opinion the judge characterized 
 such sentences "as mere mockeries, and as in no just sense judi- 
 cial proceedings;" and declared that they "ought to be deemed, 
 both ex directo in rem and collaterally, to be mere arbitrary edicts 
 or substantial frauds." 
 
 This language, it is true, is used with respect to proceedings 
 in rem of a foreign court, but it is equally applicable and pertinent 
 to proceedings in rem of a domestic court, when they are taken 
 "without any monition or public notice to the parties. In Wood- 
 ruff V. Taylor, 20 Vt. 65, the subject of proceedings in rem in our 
 courts is elaborately considered by the Supreme Court of Ver- 
 mont. After stating that in such cases notice is given to the 
 whole world, but that from its nature it is to the greater part of 
 the world constructive only, and mentioning the manner in which 
 5uch notice is given in cases of seizure for violation of the rev- 
 enue laws, by publication of the substance of the libel with the 
 order of the court thereon specifying the time and place of trial, 
 and by proclamation for all persons interested to appear and con- 
 test th6 forfeiture claimed, the court observed, that in every 
 •court and in all countries where judgments were respected, notice 
 of some kind was given, and that it was just as material to the 
 validity of a judgment in rem that constructive notice at least 
 should appear to have been given as that actual notice should 
 .appear upon the record of a judgment in personam. "A proceed- 
 ing," continued the court, "professing to determine the right of 
 property, where no notice, written or constructive, is given, what- 
 •ever else it might be called, would not be entitled to be dignified 
 with the name of a judicial proceeding. It would be a mere 
 arbitrary edict, not to be regarded anywhere as the judgment of 
 •a court." 
 
46 NATURE AND ESSENTIALS OF JUDGMENTS 
 
 In the proceedings before the district court in the confisca- 
 tion case, monition and notice, as ah-eady stated, were issued and 
 published ; but the appearance of the owner, for which they called, 
 having been refused, the subsequent sentence of [*i'52] confisca- 
 tion of his property was as inoperative upon his rights as though 
 no monition or notice had ever been issued. The legal effect of 
 striking out his appearance was to recall the monition and notice 
 as to him. His position with reference to subsequent proceeding 
 was then not unlike that of a party in a personal action, after the 
 service made upon him has been set aside. A service set aside is 
 never service by which a judgment in the action can be upheld. 
 
 The doctrine invoked by counsel, that, where a court has 
 once acquired jurisdiction, it has a right to decide every question 
 which arises in the cause, and its judgment, however erroneous, 
 cannot be collaterally assailed, is undoubtedly correct as a gen- 
 eral proposition, bvit, like all general propositions, is subject to 
 many qualifications in its application. All courts, even the high- 
 est, are more or less limited in their jurisdiction : they are lim- 
 ited to particular classes of actions, such as civil or criminal ; or 
 to particular modes of administering relief, such as legal or equit- 
 able ; or to transactions of a special character, such as arise on 
 navigable waters, or relate to the testamentary disposition of 
 estates ; or to the use of particular process in the enforcement of 
 their judgment. Norton v. Mcadcr, 4 Sawyer 603, Fed. Cas. No. 
 10,351. Though the court may possess jurisdiction of a cause, 
 of the subject-matter, and of the parties, it is still limited in its 
 modes of procedure, and in the extent and character of its judg- 
 ments. It must act judicially in all things, and cannot then trans- 
 cend the power conferred by the law. If, for instance, the action 
 be upon a money demand, the court, notwithstanding its complete 
 jurisdiction over the subject and parties, has no power to pass 
 judgment of imprisonment in the penitentiary upon the defend- 
 ant. If the action be for a libel or personal tort, the court cannot 
 order in the case a specific performance of a contract. If the 
 action be for the possession of real property, the court is powerless 
 to admit in the case the probate of a will. Instances of this kina 
 show that the general doctrine stated by counsel is subject to 
 
JURISDICTION. 47 
 
 many qualifications. The judgments mentioned, given in Uie 
 cases supposed, would not be merely erroneous : they would be 
 absolutely void, because the court in rendering them would trans- 
 cend the limits of its authority in those cases. See the language 
 of Mr. Justice [^^cS'j] Miller, to the same purport, in the case of 
 Ex parte Lange, i8 Wall. 163. So it was held by this court in 
 Bigeloiv V. Forrest, 9 id. 339, 351, that a judgment in a confisca- 
 tion case, condemning the fee of the property, was void for the 
 remainder, after the termination of the life-estate of the owner. 
 To the objection that the decree was conclusive that the entire fee 
 was confiscated, Mr. Justice Strong, speaking the unanimous 
 opinion of the court, replied : "Doubtless a decree of the court, 
 having jurisdiction to make the decree, cannot be impeached col- 
 laterally ; but, under the act of Congress, the district court had 
 no power to order a sale which should confer upon the purchaser 
 rights outlasting the life of French Forrest (the owner). Had it 
 done so, it would have transcended its jurisdiction." Id. 350. 
 
 So a departure from established modes of procedure will 
 often render the judgment void; thus, the sentence of a person 
 charged with felony, upon conviction by the court, without the 
 intervention of a jury, would be invalid for any purpose. The 
 decree of a court of equity upon oral allegations, without written 
 pleadings, would be an idle act, of no forct beyond that of an 
 advisory proceeding of the chancellor. And the reason is, that 
 the courts are not authorized to exert their power in that way. 
 
 The doctrine stated by counsel is only correct when the 
 court proceeds, after acquiring jurisdiction of the cause, accord- 
 ing to the established modes governing the class to which the 
 case belongs, and does not transcend, in the extent or character 
 of its judgment, the law which is applicable to it. The state- 
 ment of the doctrine by Mr. Justice Swayne, in the case of Cornett 
 V. Williams, 20 Wallace 226, is more accurate. "The jurisdiction," 
 says the justice, "having attached in the case, every thing done 
 within the pozver of that jurisdiction, when collaterally questioned, 
 is held conclusive of the rights of the parties, unless impeached 
 for fraud." 20 Wall. 250. 
 
 It was not within the power of the jurisdiction of the district 
 
48 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 court to proceed with the case, so as to affect the rights of the 
 owner after his appearance had been stricken out, and the benefit 
 of the citation to him thus denied. For jurisdiction [*^5^] is the 
 right to hear and determine; not to determine without hearing. 
 And where, as in that case, no appearance was allowed, there 
 could be no hearing or opportunity of being heard, and, therefore, 
 could be no exercise of jurisdiction. By the act of the court, the 
 respondent was excluded from its jurisdiction. 
 
 Judgment affirmed. 
 Miller, Bradley and Hunt, ]]., dissented. 
 
 This decision has been eulogized (4 Cent. Law J. 61) and critic- 
 ized. Freeman, Judgments, § 118; Van Fleet, Collateral Attack, § 400; 
 Kelly V. People, 115 111. 58iS, 688. The opinion and decision seem to me 
 subversive of every distinction between want of jurisdiction and the 
 improper exercise of it. It is the best of a large number of opinions 
 maintaining similar views. 
 
 PENNOYER V. NEFF. 
 
 95 United States f5 Otto) 714. (1877) 
 
 •Ejectment — Constitutional Law — Due Process of LaW — Judgments — In 
 
 Rem or In Personam, Effect, Validity — Jurisdiction, of Res, 
 
 of Parties — Method of Service — Collateral Attack. 
 
 Action in the United States circuit court for the district of 
 ■Oregon by Neff against Pennoyer to recover land in Multnomah 
 county, Oregon. From a judgment for Neff, on a special ver- 
 dict found by the court on a trial without a jury pursuant to 
 written and filed stipulation, Pennoyer brings error. Affirmed. 
 
 Neff claimed under a patent issued to him by the United 
 States. Pennoyer claimed by virtue of a sheriff's sale on an ex- 
 ecution on a judgment against Neff in favor of J. H. Mitchell. 
 The other essential facts appear in the opinion. 
 
 W. F. Trimble, for plaintiff in error. 
 
 James K. Kelly, for defendant in error. 
 
 The Court by Field, J. This is an action to recover the pos- 
 session of a tract of land, of the alleged value of $15,000, situated 
 in the state of Oregon. The plaintiff asserts title to the prem- 
 ises by a patent of the United States issued to him in 1866, under 
 the act of Congress of September 27, 1850, usually known as the 
 Donation law of Oregon. The defendant claims to Inave 
 acquired the premises under a sheriff's deed, made upon a sale of 
 the property on execution issued upon a judgment recovered 
 
JURISDICTION. 49 
 
 against the plaintiff in one of the circuit courts of the state. The 
 case turns upon the vaHdity of this judgment. 
 
 It appears from the record that the judgment was rendered 
 in February, 1866, in favor of J. H. Mitchell, for less than $300, 
 including costs, in an action brought by him upon a demand for 
 services as an attorney; that, at the time the action was com- 
 menced and the judgment rendered, the defendant therein, the 
 plaintiff here, was a non-resident of the state; [*y2o] that he was 
 not personally served with process, and did not appear therein ; and 
 that the judgment was entered upon his default in not answer- 
 ing the complaint, upon a constructive service of summons by 
 publication. 
 
 The Code of Oregon provides for such service when an 
 action is brought against a non-resident and absent defendant, 
 who has property within the state. It also provides, where the 
 action is for the recovery of money or damages, for the attach- 
 ment of the property of the non-resident. And it also declares 
 that no natural person is subject to the jurisdiction of a court 
 of the state, "unless he appear in the court, or be found within 
 the state, or be a resident thereof, or have property therein ; and, 
 in the last case, only to the extent of such property at the time 
 the jurisdiction attached." Construing this latter provision to 
 mean, that, in an action for money or damages where a defend- 
 ant does not appear in the court, and is not found within the 
 state, and is not a resident thereof, but has property therein, the 
 jurisdiction of the court extends only over such property, the 
 declaration expresses a principle of general, if not universal, law. 
 The authority of every tribunal is necessarily restricted by the 
 territorial limits of the state in which it was established. Any at- 
 tempt to exercise authority beyond those limits would be deemed 
 in every other forum, as has been said by this court, an illegiti- 
 mate assumption of power, and be resisted as mere abuse. D'Arcy 
 V. Ketchum et al., 11 How. 165. In the case against the plaintiff 
 the property here in controversy sold under the judgment ren- 
 dered was not attached, nor in any way brought under the juris- 
 diction of the court. Its first connection with the case was caused 
 by a levy of the execution. It was not, therefore, disposed of 
 
50 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 pursuant to any adjudication, but only in enforcement of a per- 
 sonal judgment, having no relation to the property, rendered 
 against a non-resident without service of process upon him in 
 the action, or his appearance therein. The court below did not 
 consider that an attachment of the property was essential to its 
 jurisdiction or to the validity of the sale, but held that the judg- 
 ment was invalid from defects in the affidavit upon which the 
 order of publication was obtained, and in the affidavit by which 
 the publication was proved. ['■'721] 
 
 There is some difference of opinion among the members of 
 this court as to the rulings upon these alleged defects. The 
 majority are of opinion that inasmuch as the statute requires, for 
 an order of publication, that certain facts shall appear by affidavit 
 to the satisfaction of the court or judge, defects in such affidavit 
 can only be taken advantage of on appeal, or by some other direct 
 proceeding, and cannot be urged to impeach the judgment col- 
 laterally. The majority of the court are also of opinion that the 
 provision of the statute requiring proof of the publication in a 
 newspaper to be made by the "affidavit of the printer, or his fore- 
 man, or his principal clerk," is satisfied when the affidavit is made 
 by the editor of the paper. The term "printer," in their judg- 
 ment, is there used not to indicate the person who sets up the 
 type, — he does not usually have a foreman or clerks, — it is rather 
 used as synonymous with publisher. The Supreme Court of New 
 York so held in one case ; observing that, for the purpose of mak- 
 ing the required proof, publishers were "within the spirit of the 
 statute." Buiice v. Reed, 16 Barb. (N. Y.) 347. And, following 
 this rule, the Supreme Court of California held that an affidavit 
 made by a "publisher and proprietor" was sufficient. Sharp v. 
 Daugney, 33 Cal. 505. The term "editor," as used when the 
 statute of New York was passed, from which the Oregon law is 
 borrowed, usually included not only the person who wrote or 
 selected the articles for publication, but the person who published 
 the paper and put it into circulation. Webster, in an early edition 
 of his dictionary, gives as one of the definitions of an editor, a 
 person "who superintends the publication of a newspaper." It is 
 principally since that time that the business of an editor has 
 
JURISDICTION. 51 
 
 been separated from that of a publisher and printer, and has be- 
 come an independent profession. 
 
 If, therefore, we were confined to the rulings of the court 
 below upon the defects in the affidavits mentioned, we should be 
 unable to uphold its decision. But it was also contended in that 
 court, and is insisted upon here, that the judgment in the state 
 court against the plaintiff was void for want of personal service 
 or process on him, or of his appearance in the action in which it was 
 rendered, and that the premises in controversy could not be sub- 
 jected to the payment of the demand [*/22] of a resident creditor 
 except by a proceeding in rem; that is, by a direct proceeding 
 against the property for that purpose. If these positions are 
 sound, the ruling of the circuit court as to the invalidity of that 
 judgment must be sustained, notwithstanding our dissent from 
 the reasons upon which it was made. And that they are sound 
 would seem to follow from two well-established principles of pub- 
 lic law respecting the jurisdiction of an independent state over 
 persons and property. The several states of the union are not, 
 it is true, in every respect independent, many of the rights and 
 powers which originally belonged to them being now vested in 
 the government created by the constitution. But, except as re- 
 strained and limited by that instrument, they possess and exercise • 
 the authority of independent states, and the principles of public 
 law to which we have referred are applicable to them. One of 
 these principles is, that every state possesses exclusive jurisdic- 
 tion and sovereignty over persons and property within its terri- 
 tory. As a consequence, every state has the power to determine 
 for itself the civil status and capacities of its inhabitants ; to pre- 
 scribe the subjects upon which they may contract, the forms and 
 solemnities with which their contracts shall be executed, the rights 
 and obligations arising from them, and the mode in which their 
 validity shall be determined and their obligations enforced; and 
 also to regulate the manner and conditions upon which property 
 situated within such territory, both personal and real, may be 
 acquired, enjoyed, and transferred. The other principle of pub- 
 lic law referred to follows from the one mentioned ; that is, that 
 no state can exercise direct jurisdiction and authority over per- 
 
52 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 sons or property without its territory. Story, Confl. Laws, c. 2; 
 Wheat. Int. Law, pt. 2, c. 2. The several states are of equal dig- 
 nity and authority, and the independence of one implies the ex- 
 clusion of power from all others. And so it is laid down by 
 jurists, as an elementary principle, that the laws of one state have 
 no operation outside of its territory, except so far as is allowed 
 by comity; and that no tribunal established by it can extend its 
 process beyond that territory so as to subject either persons or 
 property to its decisions. "Any exertion of authority of this sort 
 beyond this limit," says Story, "is a mere nullity, and incapable of 
 binding [*72j] such persons or property in any other tribunals." 
 Story, Confl. Laws, § 539. 
 
 But as contracts made in one state may be enforceable only 
 in another state, and property may be held by non-residents, the 
 exercise of the jurisdiction which every state is admitted to pos- 
 sess over persons and property within its own territory will often 
 affect persons and property without it. To any influence exerted 
 in this way by a state affecting persons resident or property sit^ 
 uated elsewhere, no objection can be justly taken; whilst any 
 direct exertion of authority upon them, in an attempt to give ex- 
 territorial operation to its laws, or to enforce an ex-territorial 
 jurisdiction by its tribunals, would be deemed an encroachment 
 upon the independence of the state in which the persons are domi- 
 ciled or the property is situated, and be resisted as usurpation. 
 
 Thus the state, through its tribunals, may compel persons 
 domiciled within its limits to execute, in pursuance of their con- 
 tracts respecting property elsewhere situated, instruments in such 
 form and with such solemnities as to transfer the title, so far as 
 such formalities can be complied with; and the exercise of this 
 jurisdiction in no manner interferes with the supreme control 
 over the property by the state within which it is situated. Penn 
 V. Lord Baltimore, i Ves. Sr. z|44 ; Masie v. Watts, 6 Cranch. 148 ; 
 Watkins v. Holman, 16 Pet. 25 ; Corbett v. A^utt, 10 Wall. 464. 
 
 So the state, through its tribunals, may subject property sit- 
 uated within its limits owned by non-residents to the payment of 
 the demand of its own citizens against them ; and the exercise of 
 this jurisdiction in no respect infringes upon the sovereignty of 
 
JURISDICTION. 53 
 
 the state where the owners are domiciled. Every state owes pro- 
 tection to its own citizens; and, when non-residents deal with 
 them, it is a legitimate and just exercise of authority to hold and 
 appropriate any property owned by such non-residents to satisfy 
 the claims of its citizens. It is in virtue of the state's jurisdiction 
 over the property of the non-resident situated within its limits 
 that its tribunals can inquire into that non-resident's obligations 
 to. its own citizens, and the inquiry can then be carried only to 
 the extent necessary to control the disposition of the property. 
 If the non-resident 1*724] have no property in the state, there is 
 nothing upon which the tribunals can adjudicate. 
 
 These views are not new. They have been frequently ex- 
 pressed, with more or less distinctness, in opinions of eminent 
 judges, and have been carried into adjudications in numerous 
 cases. Thus, in Picquet v. Swan, 5 Mason 35, Fed. Cas. No. 
 11,134, Mr. Justice Story said: — 
 
 "Where a party is within a territory, he may justly be sub- 
 jected to its process, and bound personally by the judgment pro- 
 nounced on such process against him. Where he is not within 
 such territory, and is not personally subject to its laws, if, on ac- 
 count of his supposed or actual property being within the terri- 
 tory, process by the local laws may, by attachment, go to compel 
 his appearance, and for his default to appear judgment may be 
 pronounced against him, such a judgment must, upon general 
 principles, be deemed only to bind him to the extent of such prop- 
 erty, and cannot have the eflfect of a conclusive judgment in per- 
 sonam, for the plain reason, that, except so far as the property 
 is concerned, it is a judgment coram non judice." 
 
 And in Boswell's Lessee v. Otis, 9 How. 336, where the title 
 of the plaintiff in ejectment was acquired on a sheriff's sale, under 
 a money decree rendered upon publication of notice against non- 
 residents, in a suit brought to enforce a contract relating to land, 
 Mr. Justice McLean said: — 
 
 "Jurisdiction is acquired in one of two modes : first, as 
 against the person of the defendant by the service of process ; or, 
 secondly, by a procedure against the property of the defendant 
 within the jurisdiction of the court. In the latter case, the de- 
 
54 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 fendant is not personally bound by the judgment beyond the prop- 
 erty in question. And it is immaterial whether the proceeding 
 against the property be by an attachment or a bill in chancery. It 
 must be substantially a proceeding in rem." 
 
 These citations are not made as authoritative expositions of 
 the law; for the language was perhaps not essential to the deci- 
 sion of the cases in which it was used, but as expressions of the 
 opinion of eminent jurists. But in Cooper v. Reynolds, yj U. S. 
 (lo Wallace) 308, it was essential to the disposition of the case to 
 declare the effect of a personal action against an absent party, with- 
 out the jurisdiction of the court, not served 1*725] with process or 
 voluntarily submitting to the tribunal, when it was sought to subject 
 his property to the payment of a demand of a resident complain- 
 ant ; and in the opinion there delivered we have a clear statement 
 of the law as to the efficacy of such actions, and the jurisdiction 
 of the court over them. ''■ '■' '■'■ [*7^(5] * * * [Here the court 
 states the facts and quotes at length from the opinion in Cooper v. 
 Reynolds. See ante p. 15.] 
 
 The fact that the defendants in that case had fled from the 
 state, or had concealed themselves, so as not to be reached by 
 the ordinary process of the court, and were not non-residents, 
 was not made a point in the decision. The opinion treated them 
 as being without the territorial jurisdiction of the court; and 
 the grounds and extent of its authority over persons and prop- 
 erty thus situated were considered, when they were not brought 
 within its jurisdiction by personal service or voluntary appear- 
 ance. 
 
 The writer of the present opinion considered that some of 
 the objections to the preliminary proceedings in the attachment 
 suit were well taken, and therefore dissented from the judgment 
 of the court; but to the doctrine declared in the above citation 
 he agreed, and he may add, that it received the approval of all 
 the judges. It is the only doctrine consistent with proper pro- 
 tection to citizens of other states. If, without personal service, 
 judgments in personam, obtained e.v parte against non-residents 
 and absent parties, upon mere publication of process, which, in 
 the great majority of cases, would never be seen by the parties 
 
JURISDICTION. 55 
 
 interested, could be upheld and enforced, they would be the con- 
 stant instruments of fraud and oppression. Judgments for all 
 sorts of claims upon contracts and for torts, real or pretended, 
 would be thus obtained, under which property would be seized, 
 when the evidence of tlie transactions upon [*7^7] which they were 
 founded, if they ever had any existence, had perished. 
 
 Substituted service by publication, or in any other authorized 
 form, may be sufficient to inform parties that the object of pro- 
 ceedings taken where property is once brought under the control 
 of the court by seizure or some equivalent act. The law assumes 
 that property is always in the possession of its owner, in person 
 or by agent ; and it proceeds upon the theory that its seizure will 
 inform him, not only that it is taken into the custody of the court, 
 but that he must look to any proceedings authorized by law upon 
 such seizure for its condemnation and sale. Such service may 
 also be sufficient in cases where the object of the action is to 
 reach and dispose of property- in the state, or of some interest 
 therein, by enforcing a contract or a lien respecting the same, or 
 to partition it among different owners, or, when the public is a 
 party, to condemn and appropriate it for a public purpose. In 
 other words, such service may answer in all actions which are 
 substantially proceedings in rem. But where the entire object of 
 the action is to determine the personal rights and obligations of 
 the defendants, that is, where the suit is merely in personam, 
 constructive service in this form upon a non-resident is ineffec- 
 tual for any purpose. Process from the tribunals of one state 
 cannot run into another state, and summon parties there domi- 
 ciled to leave its territory and respond to proceedings against 
 them. Publication of process or notice within the state where 
 the tribunal sits cannot create any greater obligation upon the 
 non-resident to appear. Process sent to him out of the state, and 
 process published within it, are equally unavailing in proceed,- 
 ings to establish his personal liability. 
 
 The want of authority of the tribunals of a state to adjudicate 
 upon the obligations of non-residents, where they have no prop- 
 erty within its limits, is not denied by the court below ; but the 
 position is assumed, that, where they have property within the 
 
56 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 state, it is immaterial whether the property is in the first instance 
 brought under the control of the court by attachment or some 
 other equivalent act, and afterwards applied by its judgment to 
 the satisfaction of demands against its owner; or such demands 
 be first established in a personal action, and [*y28] the property of 
 the non-resident be afterwards seized and sold on execution. But 
 the answer to this position has already been given in the state- 
 ment, that the jurisdiction of the court to inquire into and deter- 
 mine his obligations at all is only incidental to its jurisdiction 
 over the property. Its jurisdiction in that respect cannot be made 
 to depend upon facts to be ascertained after it has tried the cause 
 and rendered the judgment. If the judgment be previously void, 
 it will not become valid by the subsequent discovery of property 
 of the defendant, or by his subsequent acquisition of it. The 
 judgment, if void when rendered, will always remain void: it 
 cannot occupy the doubtful position of being valid if property be 
 found, and void if there be none. Even if the position assumed 
 were confined to cases where the non-resident defendant pos- 
 sessed property in the state at the commencement of the action, 
 it would still make the validity of the proceedings and judgment 
 depend upon the question whether, before the levy of the execu- 
 tion, the defendant had or had not disposed of the property. If 
 before the levy the property should be sold, then, according to 
 this position, the judgment would not be binding. This doctrine 
 would introduce a new element of uncertainty in judicial pro- 
 ceedings. The contrary is the law: the validity of every judg- 
 ment depends upon the jurisdiction of the court before it is ren- 
 dered, not upon what may occur subsequently. In Webster v. 
 Reid, 1 1 Howard 437, the plaintiff claimed title to land sold under 
 judgments recovered in suits brought in a territorial court of 
 Iowa, upon publication of notice under a law of the territory, 
 without service of process ; and the court said : — 
 
 "These suits were not a proceeding in rem against the land, 
 but were in personam against the owners of it. Whether they 
 all resided within the territory or not does not appear, nor is 
 it a matter of any importance. No person is required to answer 
 in a suit on whom process has not been served, or whose prop- 
 
JURISDICTION. 57 
 
 erty has not been attached. In this case, there was no personal 
 notice, nor an attachment or other proceeding- against the land, 
 until after the judgments. The judgments, therefore, are nulli- 
 ties, and did not authorize the executions on which the land was 
 sold." \*72p] 
 
 The force and effect of judgments rendered against non-resi- 
 dents without personal service of process upon them, or their 
 voluntary appearance, have been the subject of frequent consid- 
 eration in the courts of the United States, and of the several 
 states, as attempts have been made to enforce such judgments 
 in states other than those in which they were rendered, under 
 the provision of the Constitution requiring that "full faith and 
 credit shall be given in each state to the public acts, records, 
 and judicial proceedings of every other state;" and the act of 
 Congress providing for the mode of authenticating such acts,, 
 records, and proceedings, and declaring that, when thus authen- 
 ticated, "they shall have such faith and credit given to them in 
 every court within the United States as they have by law or usage 
 in the courts of the state from which they are or shall be taken." 
 In the earlier cases, it was supposed that the act gave to all judg- 
 ments the same effect in other states which they had by law im 
 the state where rendered. But this view was afterwards quali- 
 fied so as to make the act applicable only when the court render- 
 ing the judgment had jurisdiction of the parties and of the sub- 
 ject-matter, and not to preclude an inquiry into the jurisdiction 
 of the court in which the judgment was rendered, or the right 
 of the state itself to exercise authority over the person or the 
 subject-matter. M'Elmoyle v. Cohen, 13 Pet. 312. In the case 
 of D'Arcy v. Ketchum, reported in the nth of Howard, this view 
 is stated with great clearness. That was an action in the circuit 
 court of the United States for Louisiana, brought upon a judg^ 
 ment rendered in New York under a state statute, against two 
 joint debtors, only one of whom had been served with the pro- 
 cess, the other being a non-resident of the State. The circuit 
 court held the judgment conclusive and binding upon the non- 
 resident not served with process; but this court reversed its de- 
 cision, observing, that it was a familiar rule that countries for- 
 
S8 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 eign to our own disregarded a judgment merely against the per- 
 son, where the defendant had not been served with process nor 
 had a day in court; that national comity was never thus ex- 
 tended; that the proceeding was deemed an illegitimate assump- 
 tion of power, and resisted as mere abuse; that no faith and 
 credit or force and effect had been given to such judgments by any 
 state of the union, so far [*75o] as known ; and that the state courts 
 had imiformly, and in many instances, held them to be void. "The 
 international law," said the court, "as it existed among the states 
 in 1790, was that a judgment rendered in one state, assuming, to 
 bind the person of a citizen of another, was void within the for- 
 eign state when the defendant had not been served with process 
 or voluntarily made defence ; because neither the legislative juris- 
 diction nor that of courts of justice had binding force." And 
 the court held that the act of Congress did not intend to declare 
 a new rule, or to embrace judicial records of this description. 
 As was stated in a subsequent case, the doctrine of this court is, 
 that the act "was not designed to displace that principle of nat- 
 ural justice which requires a person to have notice of a suit before 
 he can be conclusively bound by its result, nor those rules of 
 public law which protect persons and property within one state 
 from the exercise of jurisdiction over them by another." The 
 Lafayette Insurance Co. v. French et al., 18 How. 404. 
 
 This whole subject has been very fully and learnedly consid- 
 .ered in the recent case of Thompson v. Whitman, 18 Wall. 457, 
 where all the authorities are carefully reviewed and distinguished, 
 and the conclusion above stated is not only reaffirmed, but the 
 doctrine is asserted, that the record of a judgment rendered in 
 another state may be contradicted as to the facts necessary to give 
 the court jurisdiction against its recital of their existence. In 
 all the cases brought in the state and federal courts, where at- 
 tempts have been made under the act of Congress to give effect 
 in one state to personal judgments rendered in another state 
 against non-residents, without service upon them, or upon sub- 
 stituted service by publication, or in some other form, it has been 
 held, without an exception, so far as we are aware, that such 
 judgments were without any binding force, except as to prop- 
 
JURISDICTION. 59 
 
 ■erty, or interests in property, within the state, to reach and affect 
 which was the object of the action in which the judgment was 
 rendered, and which property was brought under control of the 
 •court in connection with the process against the person. The 
 proceeding in such cases, though in the form of a personal action, 
 has been uniformly treated, where service was not obtained, and 
 the party did not voluntarily [*/'JJ] appear as effectual and binding 
 merely as a proceeding in rem, and as having no operation beyond 
 the disposition of the property, or some interest therein. And the 
 reason assigned for this conchision has been that which we have 
 already stated, that the tribunals of one state have no jurisdiction 
 over persons beyond its limits, and can enquire only into their obli- 
 gations to its citizens when exercising its conceded jurisdiction 
 ■over their property within its limits. In Bissell v. Briggs, g Mass. 
 462, decided by the supreme court of Massachusetts as early as 
 181 3, the law is stated substantially in conformity with these views. 
 In that case, the court considered at length the effect of the con- 
 :stitutional provision, and the act of Congress mentioned, and after 
 stating that, in order to entitle the judgment rendered in any court 
 of the United States to the full faith and credit mentioned in the 
 Constitution, the court must have had jurisdiction not only of the 
 •cause, but of the parties, it proceeded to illustrate its position by 
 ■observing, that, where a debtor living in one state has goods, 
 •effects, and credits in another, his creditor living in the other state 
 may have the property attached pursuant to its laws, and, on recov- 
 ering judgment, have the property applied to its satisfaction; and 
 that the party in whose hands the property was would be protected 
 by the judgment in the state of the debtor against a suit for it, 
 because the court rendering the judgment had jurisdiction to that 
 •extent ; but that if the property attached were insufficient to satisfy 
 the judgment, and the creditor should sue on that judgment in the 
 state of the debtor, he would fail, because the defendant was not 
 amenable to the court rendering the judgment. In other words, 
 it was held that over the property within the state the court had 
 jurisdiction by the attachment, but had none over his person; and 
 that any determination of his liability, except so far as was neces- 
 .sary for the disposition of the property, was invalid. 
 
60 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 In Kilbourn v. Woodworth, 5 Johns. (N. Y.) 37, an action 
 of debt was brought in New York upon a personal judgment 
 recovered in Massachusetts. The defendant in that judgment was- 
 not served with process ; and the suit was commenced by the attach- 
 ment of a bedstead belonging to the defendant, accompanied with 
 a summons to appear, served on his wife after she had left her 
 place in Massachusetts. The court held that {*732] the attach- 
 ment bound only the property attached as a proceeding in rem,. 
 and that it could not bind the defendant, observing, that to bind 
 a defendant personally, when he was never personally summoned 
 or had notice of the proceeding, would be contrary to the first prin- 
 ciples of justice, repeating the language in that respect of Chief 
 Justice DeGrey, used in the case of Fisher v. Lane, 3 Wils. 297,. 
 in 1772. See also Borden v. Fitch, 15 Johns. (N. Y.) 121, and 
 the cases there cited, and Harris v. Hardeman et al., 14 How. 334. 
 To the same purport decisions are found in all the state courts. 
 In several of the cases, the decision has been accompanied with 
 the observation that a personal judgment thus recovered has no 
 binding force without the state in which it is rendered, implying 
 that in such state it may be valid and binding. But if the court 
 has no jurisdiction over the person of the defendant by reason of 
 his non-residence, and, consequently, no authority to pass upon 
 his personal rights and obligations ; if the whole proceeding, with- 
 out service upon him or his appearance, is coram non judice and 
 void ; if to hold a defendant bound by such a judgment is contrary 
 to the first principles of justice, — it is difficult to see how the judg- 
 ment can legitimately have any force within the state. The lan- 
 guage used can be justified only on the ground that there was no 
 mode of directly reviewing such judgment or impeaching its valid- 
 ity within the state where rendered; and that, therefore, it could' 
 be called in question only when its enforcement was elsewhere 
 attempted. In later cases, this language is repeated with less fre- 
 quency than formerly, it beginning to be considered, as it always- 
 ought to have been, that a judgment which can be treated in any 
 state of this union as contrary to the first principles of justice,, 
 and as an absolute nullity, because rendered without any jurisdic- 
 tion of the tribunal over the party, is not entitled to any respect in 
 
JURISDICTION. 61 
 
 the state where rendered. Smith v. McCutcheon, 38 Mo. 415; 
 Darrance v. Preston, 18 Iowa, 396; Hakes v. Shupe, 27 id. 465; 
 Mitchell's Administrator v. Gray, 18 Ind. 123. 
 
 Be that as it may, the courts of the United States ate not 
 required to give effect to judgments of -this character when any 
 rights are claimed under them. Whilst they are not foreign tri- 
 bunals in their relations to the state courts, they are tribunals 
 [*/'Jj] of ^ different sovereignty, exercising a distinct and inde- 
 pendent jurisdiction, and are bound to give to the judgments of 
 the state courts only the same faith and credit which the courts 
 of another state are bound to give to them. 
 
 Since the adoption of the fourteenth amendment to the fed- 
 eral constitution, the validity of such judgments may be directly 
 questioned, and their enforcement in the state resisted, on the 
 ground that proceedings in a court of justice to determine the per- 
 sonal rights and obligations of parties over whom that court has 
 no jurisdiction do not constitute due process of law. Whatever 
 •difficulty may be experienced in giving to those terms a definition 
 which will embrace every permissible exertion of power affecting 
 private rights, and exclude such as is forbidden, there can be no 
 doubt of their meaning when applied to judicial proceedings. 
 They then mean a course of legal proceedings according to those 
 rules and principles which have been established in our systems of 
 jurisprudence for the protection and enforcement of private rights. 
 To give such proceedings any validity, there must be a tribunal 
 ■competent by its constitution — that is, by the law of its creation — 
 to pass upon the subject-matter of the suit; and, if that involves 
 merely a determination of the personal liability of the defendant, 
 he must be brought within its jurisdiction by service of process 
 within the state, or his voluntary appearance. 
 
 Except in cases affecting the personal status of the plaintiff, 
 •and cases in which that mode of service may be considered to have 
 been assented to in advance, as hereinafter mentioned, the substi- 
 tuted service of process by publication, allowed by the law of Ore- 
 gon and by similar laws in other states, where actions are brought 
 -against non-residents, is effectual only where, in connection with 
 process against the person for commencing" the action, property in 
 
62 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 the State is brought under the control of the court, and subjected 
 to its disposition by process adapted to that purpose, or where the 
 judgment is sought as a means of reaching such property or affect- 
 ing some interest therein ; in other words, where tlie action is in 
 the nature of a proceeding in rem. As stated by Cooley in his 
 treatise on Constitutional Limitations, 405, for any other purpose 
 than to subject the property of a non-resident to valid claims against 
 [*734] him in the state, "due process of law would require appear- 
 ance or personal service before the defendant could be personally 
 bound by any judgment rendered." 
 
 It is true that, in a strict sense, a proceeding in rem is one 
 taken directly against property, and has for its object the disposi- 
 tion of the property, without reference to the title of individual 
 claimants ; but, in a larger and more general sense, the terms are 
 applied to actions between parties, where the direct object is to 
 reach and dispose of property owned by them, or of some interest 
 therein. Such are cases commenced by attachment against the 
 property of debtors, or instituted to partition real estate, foreclose 
 a mortgage, or enforce a lien. So far as they affect property in the 
 state, they are substantially proceedings in rem in the broader 
 sense which we have mentioned. 
 
 It is hardly necessary to observe, that in all we have said we 
 have had reference to proceedings in courts of first instance, and 
 to their jurisdiction, and not to proceedings in an appellate tri- 
 bunal to review the action of such courts. The latter may be taken 
 upon such notice, personal or constructive, as the state creating 
 the tribunal may provide. They are considered as rather a con- 
 tinuation of the original litigation than the commencement of a 
 new action. Nations et al. v. Johnson et al., 24 How. 195. 
 
 It follows from the views expressed that the personal judg- 
 ment recovered in the state court of Oregon against the plaintiff 
 herein, then a non-resident of the state, was without any validity, 
 and did not authorize a sale of the property in controversy. 
 
 To prevent any misapplication of the views expressed in this 
 opinion, it is proper to observe that we do not mean to assert, by 
 any thing we have said, that a state may not authorize proceed- 
 ings to determine the status of one of its citizens towards a non- 
 
JURISDICTION. 63 
 
 resident, which would be binding within the state, though made 
 without service of process or personal notice to the non-resident. 
 The jurisdiction which every state possesses to determine the civil 
 status and capacities of all its inhabitants involves authority to pre- 
 scribe the conditions on which proceedings affecting them may be 
 commenced and carried on within its territory. The state, for 
 example, has absolute [*7J5] right to prescribe the conditions upon 
 which the marriage relation between its own citizens shall be 
 created, and the causes for which it may be dissolved. One of 
 the parties guilty of acts for which, by the law of the state, a dis- 
 solution may be granted, may have removed to a state where no 
 dissolution is permitted. The complaining party would, therefore, 
 fail if a divorce were sought in the state of the defendant; and 
 if application could not be made to the tribunals of the complain- 
 ant's domicile in such case, and proceedings be there instituted 
 without personal service of process or personal notice to the offend- 
 ing party, the injured citizen would be without redress. Bish. 
 Marr. and Div., § 156, 
 
 Neither do we mean to assert that a state may not require a 
 non-resident entering into a partnership or association within its 
 limits, or making contracts enforceable there, to appoint an agent 
 or representative in the state to receive service of process and 
 notice in legal proceedings instituted with respect to such partner- 
 ship, association, or contracts, or to designate a place where such 
 service may be made and notice given, and provide, upon their fail- 
 ure, to make such appointment or to designate such place that serv- 
 ice may be made upon a public officer designated for that purpose, 
 or in some other prescribed way, and that judgments rendered 
 upon such service may not be binding upon the non-residents both 
 within and without the state. As was said by the court of exche- 
 quer in Vallee v. Dumergne, 4 Exch. 290, "It is not contrary to 
 natural justice that a man who has agreed to receive a particular 
 mode of notification of legal proceedings should be bound by a 
 judgment in which that particular mode of notification has been 
 followed, even though he may not have actual notice of them." 
 See also The Lafayette Insurance Co. v. French et al., 18 How. 
 404, and Gillespie v. Commercial Mutual Marine Insurance Co., 
 
•64 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 12 Gray (Mass.), 201. Nor do we doubt that a state, on creat- 
 ing corporations or other institutions for pecuniary or charitable 
 purposes.may provide a mode in which their conduct may be inves- 
 tigated, their obHgations enforced, or their charters revoked, which 
 5hall require other than personal service upon their officers or 
 members. Parties becoming members of such corporations or 
 institutions would hold their [""7J(5] interest subject to the condi- 
 tions prescribed by law. Copin v. Adamson, Law Rep., 9 Ex. 345. 
 In the present case, there is no feature of this kind, and, con- 
 sequently, no consideration of what would be the effect of such 
 legislation in enforcing the contract of a non-resident can arise. 
 The question here respects only the validity of a money judgment 
 rendered in one state, in an action upon a simple contract against 
 the resident of another, without service of process upon him, or 
 his appearance therein. 
 
 Judgment affirmed. 
 
 Hunt, J., dissenting. I am compelled to dissent from the opin- 
 ion and judgment of the court, and, deeming the question involved 
 to be important, I take leave to record my views upon it. * * * 
 
 The judgment of this court is based upon the theory that the 
 legislature had no power to pass the law in question ; that the prin- 
 ciple of the statute is vicious, and every proceeding under it void. 
 It, therefore, affects all like cases, past and future, and in every 
 state. ^ * * [*7J7] 
 
 The result of the authorities on the subject, and the sound 
 conclusions to be drawn from the principles which should govern 
 the decision, as I shall endeavor to show, are these : — 
 
 1. A sovereign state must necessarily have such control over 
 the real and personal property actually being within its limits, as 
 that it may subject the same to the payment of debts justly due to 
 its citizens. 
 
 2. This result is not altered by the circumstance that the 
 owner of the property is non-resident, and so absent from the 
 state that legal process cannot be served upon him personally. 
 
 3. Personal notice of a proceeding by which title to property 
 is passed is not indispensable; it is competent to the state to 
 authorize substituted service by publication or otherwise, as the 
 
JURISDICTION. 65 
 
 commencement of a suit against non-residents, the judgment in 
 which will authorize the sale of property in such state. 
 
 4. It belongs to the legislative power of the state to deter- 
 mine what shall be the modes and means proper to be adopted to 
 give notice to an absent defendant of the commencement of a suit ; 
 and if they are such as are reasonably likely to communicate to 
 him information of the proceeding against him, and are in good 
 faith designed to give him such information, and an opportunity 
 to defend is provided for him in the event of his appearance in the 
 suit, it is not competent to the judiciary to declare that such pro- 
 ceeding is void as not being by due process of law. 
 
 5. Whether the property of such non-resident shall be seized 
 [*75(S] upon attachment as the commencement of a suit which 
 shall be carried into judgment and execution, upon which it shall 
 then be sold, or whether it shall be sold upon an execution and 
 judgment without such preliminary seizure, is a matter not of con- 
 stitutional power, but of municipal regulation only. 
 
 To say that a sovereign state has the power to ordain that 
 the property of non-residents within its territory may be subjected 
 to the payment of debts due to its citizens, if the property is levied 
 upon at the commencement of a suit, but that it has not such power 
 if the property is levied upon at the end of the suit, is a refinement 
 and a depreciation of a great general principle that, in my judg- 
 ment, cannot be sustained. * * * 
 
 LINDLEY V. O'REILLY. 
 50 New Jersey Law 636, 7 Am. St. Rep. 802, 15 Atl. 379. (1888) 
 
 Specific Enforcement in Equity — Land in Another State — Collateral 
 
 Attack. 
 
 Ejectment by Catherine O'Reilly against David Lindley for 
 land in Atlantic county. From judgment in favor of plaintiff, 
 defendant brings error. Reversed. 
 
 Thomas B. Harned and D. J. Pancoast for plaintiff in error. 
 
 Peter L. Voorhees and James H. O'Reilly, contra. 
 
 The Court by Depue, J. Patrick O'Reilly died in 1881. In 
 his lifetime he was seized of a tract of land in the county of Atlan- 
 tic, in this state, the subject of controversy in this suit. By his 
 
66 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 will, dated December 5th, 1877, proved before the surrogate of 
 Atlantic county July 5th, 1881, and letters testamentary granted 
 thereon, he devised his entire estate to the plaintiff, his wife, for 
 life. Exception was taken to the admission of a certified copy of 
 this will, but the printed case does not contain a full copy of the 
 will, nor does any assignment of error touch the competency of this 
 evidence. It must be assumed that this will was duly, executed 
 to devise lands under the laws of this state, and that the same was 
 duly probated to make a certified copy competent evidence. On 
 this presentation of title, the plaintiff would have been entitled to a 
 verdict. 
 
 The obstacle in the way of the plaintiff's recovering, in virtue 
 of her title under her husband's will, arose from a deed made by 
 O'Reilly and wife to one Henry Francis Felix, on the 14th of Jan- 
 uary, 1 86 1. This deed purported to be an absolute conveyance, 
 in fee simple, for the consideration of $18,000. To sustain title 
 under her husband's will, it was necessary for the plaintiff to 
 overcome or extinguish the legal title thus conveyed. 
 
 The plaintiff contended, at the trial, that the deed to Felix 
 was, in fact, a mortgage, and that the debt or liability for which it 
 was given was paid and satisfied, and that on the discharge of the 
 obligation for which the conveyance was made, the estate of the 
 mortgagee was extinguished. In a trial at [^djp] law it is not 
 competent to show, by oral testimohy, that an absolute deed was, 
 in reality, a mortgage. In our judicial system, the jurisdiction to 
 convert an absolute deed into a mortgage, by parol evidence, is 
 exclusively in the equity courts. The competency and effect of the 
 evidence produced by the plaintiff for this purpose, are the issues 
 raised by the bill of exceptions and assignments of error. 
 
 Felix died in 1866. By his will he gave all his property for 
 the benefit of his wife, Alicia Kate, and a charitable society known 
 as the Sisters of the Immaculate Heart of Mary, and made the 
 Right Reverend James F. Wood, Roman Catholic Bishop of Phila- 
 delphia, executor. 
 
 Felix, at the time of his death, resided at Reading, in the county 
 of Berks, Pennsylvania. On the 4th of December, 1867, O'Reilly 
 filed a bill of equity in the court of common pleas of the county 
 
JURISDICTION. '' ' 67 
 
 •of Berks, against the Right Reverend James F. Wood, executor 
 of the last will and testament of Henry F. Felix, Alicia Kate Felix, 
 widow of said Henry F. Felix, and the religious order of the Sis- 
 ters of the Immaculate Heart of Mary. 
 
 The bill set out, that the Right Reverend James F. Wood was 
 a resident of Philadelphia, that Alicia Kate Felix resided in Read- 
 ing, and that the religions order of the Sisters of the Immaculate 
 Heart of Mary was a society established in Reading. It charged 
 that the deed of conveyance made by O'Reilly to Felix was, in legal 
 effect, a mortgage ; that the same was made as security to indem- 
 nify Felix against his liability on certain promissory notes made 
 by O'Reilly and endorsed by Felix, and discounted by the Farmers' 
 Bank of Reading, and under protest, and that, subsequently, the 
 said notes were fully paid and satisfied by the said O'Reilly; that 
 the said Felix sustained no loss or damage in consequence of the 
 .said endorsements, and prayed a reconveyance of the legal title. 
 The defendants named in the bill appeared and filed an answer. 
 By consent of parties an examiner was appointed January 27th, 
 1868, who filed his report November ist, 1869, and in September, 
 1880, the case was brought on for hearing, by consent, [*d.^o] on 
 the bill, answer and report of the examiner; and on the 20th of 
 September, 1880, a decree was signed, in which, after reciting that 
 the court being satisfied that the allegations of the plaintiff's bill 
 were correct and true, and that all tbe notes endorsed by Felix, 
 and liabilities incurred by him for O'Reilly, had been, by O'Reilly, 
 fully paid, discharged and satisfied, it was ordered and decreed 
 that the Right Reverend James F. Wood, executor of the last will 
 and testament of deceased, should execute and deliver to Patrick 
 O'Reilly, a deed of reconveyance of the premises in fee simple. 
 
 All the parties to the suit resided in Pennsylvania. The Penn- 
 sylvania court had jurisdiction of the parties and also of the sub- 
 ject-matter of the suit. The contested problem is the effect of its 
 decree upon the title to lands in this t.tate. If the decree can affect 
 the title to lands in this state, it extinguished the Felix title with- 
 out a reconveyance, for in this state a mortgage is regarded as a 
 mere security for the debt or liability for which it is given, and 
 payment or satisfaction of the debt or liability discharges the mort- 
 
68 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 gage, and revests the mortgaged premises in the mortgagor without 
 a reconveyance. Shields v. Lozear, 5 Vroom 496; Kloepping v. 
 Stellmacher, 7 Id. 176; Jackson v. Terrell, 10 Id. 329; S chalk v. 
 Kingsley, 13 Id. 32. 
 
 Ever since Penn v. Lord Baltimore, i Ves. St., 444, it has been 
 established law that in cases of contract, trust or fraud, the equity 
 courts of one state or country, having jurisdiction of the parties, 
 are competent to entertain a suit for specific performance, or to 
 establish a trust, or for a conveyance, although the contract, trust 
 or fraudulent title pertains to lands in another state or country. 
 The principle upon which this jurisdiction rests is, that chancery, 
 acting in personam and not in rem, holds the conscience of the par- 
 ties bound without regard to the situs of the property. It is a 
 jurisdiction that arises when a special equity can be shown which 
 forms a ground for compelling a party to convey or release, or 
 for restraining him from asserting a title or right in lands so sit- 
 uated, and is strictly limited to those cases in which the relief [*(5<^i] 
 decreed can be obtained through the party's personal obedience. 
 If it went beyond that the assumption of jurisdiction would not 
 only be presumptuous but ineffectual. Westlake on International 
 Law, 57, 58. The decree in a suit of this aspect imposes a mere 
 personal obligation, enforceable by injunction, attachment, or like 
 process, against the person, and cannot operate ex propria vigore 
 upon lands in another jurisdiction to create, transfer or vest a title. 
 The cases on this subject are numerous. They are collected in the 
 note to Penn v. Lord Baltimore, 2 Lead. Cas. in Eq. 1806, (1047). 
 Brett's Lead. Cas. in Eq. 254;; Ezving v. Orr Ewing, 9 App. Cas. 
 34; N orris v. Chambres, 29 Beav. 246; Massie v. Watts, 6 Cranch 
 148; Wood V. Warner, 2 McCarthy (D. C.) 81 ; Vaughan v. Bark- 
 ley, 6 Wharton (Pa.) 392. In Davis v. Headley, 7 C. E. Or. 115, 
 the complainant obtained a decree in the circuit court of Ken- 
 tucky against Headley, that a conveyance of lands in New Jersey, 
 made by the complainant, should be rescinded and set aside, the 
 possession restored and the defendant enjoined from setting up the 
 conveyance. He then filed a bill in the court of chancery of this 
 state to enforce the decree. The jurisdiction of the parties and 
 of the subject-matter of that suit was undisputed. The bill to 
 
JURISDICTION. 69 
 
 enforce the decree was nevertheless dismissed. Chancellor Zabris- 
 kie, in dismissing the bill, declared that it was a well settled prin- 
 ciple of law in the decisions of England and of this country, and 
 acquiesced in by the jurists of all civilized nations, that immovable 
 property is exclusively subject to the laws and jurisdiction of the 
 courts of the state or nation in which it is located, and that no other 
 laws or courts could affect it. He added, "I find no case in which 
 a statute, judgment or proceeding in one country has been held to 
 affect such property in another country or beyond the jurisdiction 
 of the sovereign or court making the decree." After referring to 
 Penn v. Lord Baltimore, and the cases in which decrees for specific 
 performance of contracts relating to lands without their jurisdic- 
 tion were made, the learned chancellor said, "But in these cases 
 it is admitted, as it was by Lord Hardicke, that these [*6^2] decrees 
 could not affect the land, but could only be enforced where the court 
 had jurisdiction of the person of the defendant and thus compel 
 him to execute the conveyance. In such cases it is the conveyance 
 and not the decree that has the effect." 
 
 A similar precedent in the federal courts enforced the same 
 view. Watts v. Waddle et al., i McLean 200; s. c. on appeal, 6 
 Peters 389. Lands situate in Ohio were covered by two patents, 
 one issued to Powell and the other to Watts. To remove this cloud 
 upon his title. Watts commenced a suit against Powell's heirs in 
 the circuit court for the district of Kentucky, and obtained a 
 decree sustaining his title. The court had jurisdiction of the par- 
 ties. By the decree the defendants were required to convey the 
 premises to the complainant. A statute of Kentucky authorized 
 the court, in case the defendant in such a suit failed to convey, to 
 appoint a commissioner to make conveyance. By the decree a 
 commissioner was appointed, and, no conveyance having been made 
 by the parties, a deed was executed by the commissioner. A suit 
 afterwards brought in the federal circuit court of Ohio, brought 
 in question the effect of the decree of the Kentucky court, and of 
 the commissioner's deed in execution of it, upon the title to the 
 lands. The court held that neither the decree nor the commission- 
 er's deed vested the legal title in the complainant. In the opinion 
 in the supreme court, Mr. Justice McLean said: "The most 
 
70 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 decisive objection to the decree against Powell's heirs is, that it 
 does not vest the legal title in Watts. A decree cannot operate 
 beyond the state in which the jurisdiction is exercised. It is not 
 in the power of one state to prescribe the mode by which real 
 property shall be conveyed in another. This principle is too clear 
 to admit of doubt." 
 
 These cases rest upon the rule, which is firmly established, 
 that the courts of one state or county are without jurisdiction 
 over title to lands in another state or county. The clause of the 
 federal constitution which requires full faith and credit to be given 
 in each state to the records and judicial proceedings of every other 
 state, is subordinate to this rule, and applies to [*<54j] the records 
 and proceedings of the courts only so far as they have jurisdiction. 
 Public Works v. Columbia College, 17 Wall. 521 ; Watts v. Waddle, 
 6 Peters 389; Brine v. Ins. Co., 96 U. S. 627, 635 ; Davis v. Head- 
 ley, 7 C. E. Gr. 115, 121 ; Nelson v. Potter, 50 N. J. L. 324. 
 
 The Pennsylvania court having no jurisdiction over title to 
 lands in this state, its decree, though conclusive within the juris- 
 diction which pronounced it, cannot be allowed to affect the title 
 to these lands. It could not, therefore, operate to convert the deed 
 to Felix into a mortgage, and then decree it a satisfied encum- 
 brance. For this .reason, as well as another which will be pres- 
 ently stated, the decree did not extinguish the Felix title, 
 
 The plaintiff also offered in evidence a deed made by Wood 
 to Patrick O'Reilly, dated October i6th, 1869, whereby the prem- 
 ises in suit were reconveyed to O'Reilly. This deed was made 
 pending the equity suit, after the evidence in that suit was taken, 
 and before final decree. It sets out the substance of O'Reilly's 
 bill, as to the nature and purpose of his deed to Felix, and the pay- 
 ment and discharge by O'Reilly of the debt or liability to secure 
 which the deed was given, and recites that the grantor is satisfied 
 that the allegations in the bill are true, and in formal words it recon- 
 veys the premises to O'Reilly in fee. * * * ["''550] * * * 
 
 To complete the chain of title from Felix it was necessary 
 for the plaintiff to show title in Wood, and this could be done only 
 by proof of the Felix will. A copy of this will, certified by the 
 register of probate of the county of Berks, authenticated in the 
 
JURISDICTION. 71 
 
 manner prescribed by the act of Congress, was filed and recorded 
 in the office of the surrogate of Atlantic county, April [*<55J] nth. 
 1882, and a transcript of that record, certified by the surrogate, was 
 produced and received in evidence as proof of the will. * * * 
 [*(55^] * * * jt did not in any way appear before the surrogate 
 that the will had been admitted to probate [*(55j] in Pennsylvania, 
 except by the affidavit of an attorney-at-law practicing in that state, 
 that the said will had been duly proved and admitted to probate, 
 as well as recorded in the office of the register of wills of Berks 
 county. This affidavit was not competent to establish that fact. 
 
 The probate of a will is a judicial act, to be proven by a sworn 
 or duly certified copy of the record, or at least by the certificate of 
 the officer before whom the probate is made. And where the object 
 of making such a will a record in this state is for the purpose of 
 making title to lands, the record exemplified from another state 
 must contain the proofs talcen upon the probate, that it may appear 
 by such proofs that the will was made and executed in the manner 
 and with the formalities prescribed by the statute of this state for 
 devises of lands. Without such proofs, the record, however 
 authenticated, is not even prima facie evidence of title to lands. 
 Allaire v. Allaire, 8 Vroom 312; s. c. Id. 113; Nelson v. Potter, 
 50, N. J. L. 324. 
 
 The court erred in admitting the transcript of the will in evi- 
 dence, and in directing a verdict for the plaintiff. For these rea- 
 sons the judgment should be 
 
 Reversed. 
 
 CHICAGO, ROCK ISLAND & PAG. RY. CO. v. STURM. 
 174 United States 710. (1898) 
 
 Garnishment — Situs — Jurisdiction of Res — Exemption — Claim — Proced- 
 ure — Constitutional Law'^Full Faith and Credit. 
 
 Action commenced in justice court in Belleville, Republic 
 county, Kansas, by E. H. Sturm, the head of a family and a resi- 
 dent of Kansas, against the Chicago, R. I. & P. Ry. Co., a corpora- 
 tion under the laws of the states of Illinois and Iowa, and doing 
 business in Kansas, to recover $140, due the plaintiff for wages 
 earned and payable in Kansas, and there exeinpt from liability for 
 his debts. From judgment for plaintiff for $140, interest and costs, 
 
72 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 defendant appealed to the district court of said county. When 
 the case was called for trial in the district court the defendant 
 moved for a continuance on the ground that, before this action was 
 commenced, A. H. Willard of Iowa had sued Sturm before a jus- 
 tice of the peace in Pottawattomie county, Iowa, and duly attached 
 the wages sued for in this action by summoning this defendant as 
 garnishee and serving said Sturm by publication only; that there- 
 after said justice had rendered judgment against Sturm and this 
 defendant as his garnishee for $95 ; and that this defendant had 
 appealed from said judgment to the district court of said county, 
 where said action was still pending. This motion being denied, 
 defendant set up the same facts by way of answer, attaching a duly 
 certified copy of the Iowa proceedings. Sturm replied by claiming 
 his exemption, and on trial judgment was given in his favor as 
 before. Defendant then moved for a new trial on the ground that 
 full faith and credit had not been given to the Iowa proceedings 
 as required by Sec. i, Art. 4, of the United States Constitution. 
 This motion being denied, the judgment was affirmed by the court 
 of appeals on error (5 Kan. App. 427, 49 Pac. 337), and on error 
 to the supreme court of the state was again affirmed: 58 Kan. 818. 
 The defendant now brings the case here by writ of error. Reversed. 
 
 W. F. Evans and M. A. Low for plaintiff in error. 
 
 No appearance for defendant in error. 
 
 The Court by McKenna, J. How proceedings in garnishment 
 may be availed of in defence — whether in abatement or bar of the 
 suit on the debt attached or for a continuance of it or suspension 
 of execution — the practice of the states of the union is not uni- 
 form. But it is obvious and necessary justice that such proceed- 
 ings should be allowed as a defence in some way. 
 
 In the pending suit plaintifiE in error moved for a continuance, 
 and not securing it pleaded the proceedings in garnishment in 
 answer, Judgment, however, was rendered against it, and sus- 
 tained by the supreme court, on the authority of Missouri Pacific 
 Railway Company v. Sharitt, 43 Kansas 375, and "for the rea- 
 son stated by Mr. Justice Valentine in that case." 
 
 The facts of that case were as follows : The Missouri Pacific 
 Railway Company was indebted to Sharitt for services performed 
 
JURISDICTION. 73 
 
 in Kansas. Sharitt was indebted to one J. P. Stewart, a resident 
 of Missouri. Stewart sued him in Missouri, and attached his 
 wages in the hands of the railway company, and the latter answered 
 in the suit in accordance with the order of garnishment on the 28th 
 of July, 1887, admitting indebtedness, and on the 29th of Septem- 
 ber was ordered to pay its amount into court. On the 27th of 
 July Sharitt brought an action in Kansas against the railway com- 
 pany to recover for his services, and the company in defense 
 pleaded the garnishment and order of the Missouri court. The 
 amount due Sharitt having been for wages, was exempt from 
 attachment in Kansas. It was held that the garnishment was not a 
 defence. The facts were similar therefore to those of the case 
 at bar. 
 
 The ground of the opinion of Mr. Justice Valentine waa 
 1*714] that the Missouri court had no jurisdiction because the 
 situs of the debt was in Kansas. In other words, and to quote 
 the language of the learned justice, "the situs of a debt is either with 
 the owner thereof, or at his domicile ; or where the debt is to be 
 paid; and it cannot be subjected to a proceeding in garnishment 
 anywhere else. * * * It is not the debtor who can carry or trans- 
 fer or transport the property in a debt from one state or jurisdic- 
 tion into another. The situs of the property in a debt can be 
 changed only by the change of location of the creditor who is the 
 owner thereof, or with his consent." 
 
 The primary proposition is that the situs of a debt is at the 
 domicile of a creditor, or, to state it negatively, it is not at the 
 domicile of the debtor. 
 
 The proposition is supported by some cases ; it is opposed by 
 others. Its error proceeds, as we conceive, from confounding debt 
 and credit, rights and remedies. The right of a creditor and the 
 obligation of a debtor are correlative but different things, and the 
 law in adapting its remedies for or against either must regard that 
 difiference. Of this there are many illustrations, and a proper and 
 accurate attention to it avoids misunderstanding. This court said 
 by Mr. Justice Gray in Wyman v. Halstead, 109 U. S. 654, 656: 
 "The general rule of law is well settled, that for the purpose of 
 founding administration all simple contract debts are assets at the 
 
74 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 domicile of the debtor." And this is not because of defective title 
 in the creditor or in his administrator, but because the policy of the 
 state of the debtor requires it to protect home creditors. Wilkins 
 V. Ellett, 9 Wall. 740; 108 U. S. 256. Debts cannot be assets at 
 the domicile of the debtor if their locality is fixed at the domicile of 
 the creditor, and if the policy of the state of the debtor can pro- 
 tect home creditors through administration proceedings, the same 
 policy can protect home creditors through attachment proceedings. 
 
 For illustrations in matters of taxation, see Kirtland v. Hotch- 
 kiss, 100 U. S. 491 ; Pullman's Car Co. v. Pennsylvania, 141 U. 
 S. 18 ; Savings and Loan Society v. Multnomah County, 169 U. 
 S. 421. 
 
 Our attachment laws had their origin in the custom of [*7i"5] 
 London. Drake, § i. Under it a debt was regarded as being 
 where the debtor was, and questions of jurisdiction were settled 
 on that regard. In Andrews v. Clerke (1689), i Carth. 25, Lord 
 Chief Justice Holt summarily decided such a question, and stated 
 the practice under the custom of London. The report of the case 
 is brief, and is as follows : 
 
 "Andrews levied a plaint in the sheriff's court in London and, 
 upon the usual suggestion that one T. S. (the garnishee) was 
 debtor to the defendant, a foreign attachment was awarded to 
 attach that debt in the hands of T. S., which was accordingly done; 
 and then a diletur was entered, which is in nature of an imparlance 
 in that court. 
 
 "Afterwards T. S. (the garnishee) pleaded to the jurisdiction 
 setting forth that the cause of debt due from him to the defendant 
 Sir Robert Clerke, and the contract on which it was founded, did 
 arise, and was made at H. in the county of Middlesex, extra juris- 
 dictionem curiae; and this plea being overruled, it was now moved 
 (in behalf of T. S., the garnishee,) for a prohibition to the sheriff's 
 court aforesaid, suggesting the said matter, (viz.) that the cause of 
 action did arise extra jurisdictionem, etc., but the prohibition was 
 denied because the debt always follows the person of the debtor, 
 and it is not material where it was contracted, especially as to this 
 purpose of foreign attachments; for it was always the custom in 
 London to attach debts upon bills of exchange, and goldsmith's 
 
JURISDICTION. 75 
 
 -notes, etc., if the goldsmith who gave the note on the person to 
 whom the bill is directed, liveth within the city without any respect 
 Tiad to the place where the debt was contracted." 
 
 The idea of locality of things which may be said to be intan- 
 gible is somewhat confusing, but if it be kept up the right of the 
 creditor and the obligation of the debtor cannot have the same, 
 unless debtor and creditor live in the same place. But we do not 
 think it is necessary to resort to the idea at all or to give it impor- 
 tant distinction. The essential service of foreign attachment laws 
 is to reach and arrest the payment of what is due and might be paid 
 to a non-resident to the defeat of his creditors. To do it he must 
 go to the [*^i6] domicile of his debtor, and can only do it under 
 the laws and procedure in force there. This is a legal necessity, 
 and considerations of situs are somewhat artificial. If not arti- 
 ficial, whatever of substance there is must be with the debtor. He 
 and he only has something in his hands. That something is the 
 reSj and gives character to the action as one in the nature of a pro- 
 ceeding in rem. Mooney v. Buford & George Mfg. Co., 72 Fed. 
 Rep. 32 ; Story on Conflict of Laws, § 549, and notes. 
 
 To ignore this is to give immunity to debts owed to non- 
 resident creditors from attachment by their creditors, and to deny 
 
 - necessary remedies. A debt may be as valuable as tangible things. 
 It is not capable of manual seizure, as they are, but no' more than 
 they can it be appropriated by attachment without process and the 
 power to execute the process. A notice to the debtor must be given, 
 and can only be given and enforced where he is. This, as we have 
 
 . already said, is a necessity, and it cannot be evaded by the insistence 
 upon fictions or refinements about situs or the rights of the creditor. 
 Of course, the debt is the property of the creditor, and because it 
 is, the law seeks to subject it, as it does other property, to the pay- 
 ment of his creditors. If it can be done in any other way than by 
 process against and jurisdiction of his debtor, that way does not 
 
 ■ occur to us. 
 
 Besides the proposition which we have discussed there are 
 involved in the decision of the Sharitt case the propositions that a 
 debt may have a situs where it is payable, and that it cannot be 
 
 made migratory by the debtor. The latter was probably expressed 
 
 as a consequence of the primary proposition and does not require 
 
76 NATURE AND ESSENTIALS OF JUDGMENTS. 
 
 separate consideration. Besides there is no fact of change of 
 domicile in the case. The plaintiff in error was not temporarily ia 
 Iowa. It was an Iowa corporation and a resident of the state, 
 and was such at the time the debt sued on was contracted, and we 
 are not concerned to inquire whether the cases which decide that a 
 .debtor temporarily in a state cannot be garnished there, are or are- 
 not justified by principle. 
 
 The proposition that the situs of a debt is where it is to be 
 paid, is indefinite. "All debts are payable everywhere, unless 
 [*7i/] there be some special limitation or provision in respect to 
 the payment; the rule being that debts as such have no locus or 
 situs, but accompany the creditor everywhere, and authorize a 
 demand upon the debtor everywhere." 2 Parsons on Contracts,^ 
 8th edition, 702. The debt involved in the pending case had nO' 
 "special limitation or provision in respect to payment." It was 
 payable generally and could have been sued on in Iowa, and there- 
 fore was attachable in Iowa. This is the principle and effect of^ 
 the best considered cases — the inevitable effect from the nature of 
 transitory actions and the purpose of foreign attachment laws if 
 we would enforce that purpose. Embree v. Hanna, 5 Johns. loi ;. 
 Hull V. Blake, 13 Mass. 153; Blake v. Williams, 6 Pick. 286; Har- 
 well V. Sharp, 85 Georgia, 124; Harvey v. Great Northern Rail- 
 way Co., 50 Minnesota, 405 ; Mahany v. Kephart, 15 W. Va. 609; 
 Leiber v. Railroad Co., 49 Iowa, 688; National Fire Ins. Co. v. 
 Chambers, 53 N. J. Eq. 468 ; Pomeroy v. Rand, McNally & Co., 
 157 Illinois 176; Berry Bros. v. Nelson, Davis & Co., TJ Texas^ 
 191 ; Weyth Hardware Co. v. Lang, 127 Missouri 242 ; Howland 
 v. Chicago, Rock Island &c. Railway, 134 Missouri 474; Holland' 
 V. Mobile & 0. R. R., 84 Tennessee 414. 
 
 Mr. Justice Valentine also expressed the view that "if a debt 
 is exempt from a judicial process in the state where it is created, 
 the exemption will follow the debt as an incident thereto into any 
 other state or jurisdiction into which the debt may be supposed 
 to be carried." For this he cites some cases. 
 
 It is not clear whether the learned justice considered that the 
 doctrine affected the jurisdiction of the Iowa courts or was but an 
 incident of the law of situs as expressed by him. If the latter, jt; 
 has been answered by what we have already said. If the former,.- 
 
JURISDICTION. 77 
 
 it cannot be sustained. It may have been error for the Iowa court 
 
 "to have ruled against the doctrine, but the error did not destroy 
 jurisdiction. Howland v. Chicago R. I. & P. Ry. Co., 134 Mis- 
 souri 474. 
 
 But we do not assent to the proposition. Exemption laws 
 are not a part of the contract ; they are part of the remedy and sub- 
 ject to the law of the forum. Freeman on Executions, § 209, and 
 cases cited; also Mineral Point Railroad v. Barron, {*7i8] 83 Illi- 
 nois 365 ; Carson v. Railway Co., 88 Tennessee 646 ; Couley v. 
 Chilcote, 25 Ohio St. 320; Albrecht v. Treitschke, 17 Nebraska 
 
 .205 ; O'Connor v. Walter, 37 Nebraska 267 ; Chicago, Burlington 
 &c. Railroad v. Moore, 31 Nebraska 629; Moore v. Chicago, Rock 
 Island &c. Railroad, 43 Iowa, 385 ; Broadstreet v. Clark, D. & C. 
 M. & St. P. Railroad, Garnishee, 65 Iowa 670 ; Stevens v. Brown, 
 5 West Virginia 450. See also Bank of United States v. Donnally, 
 
 -8 Pet. 361,; Wilcox V. Hunt, 13 Pet. 378; Townsend v. Jemison, 
 
 ■9 How. 407 ; Walworth v. Harris, 129 U. S. 365 ; Penfield v. Chesa- 
 peake, Ohio &c. Railroad, 134 U. S. 351. As to the extent to 
 which le.r fori governs, see Story on Conflict of Laws, 571 et seq. 
 
 There are cases for and cases against the proposition that it 
 is the duty of a garnishee to notify the defendant, his creditor, of 
 
 "the pendency of the proceedings, and also to make the defence of 
 
 •exemption, or he will be precluded from claiming the proceedings 
 in defence of an action against himself. We need not comment on 
 the cases or reconcile them, as such notice was given and the 
 defence was made. The plaintiff in error did all it could and sub- 
 mitted only to the demands of the law. 
 
 In Broadstreet v. Clark, 65 Iowa 670, the supreme court of 
 
 :the state decided that exemption laws pertained to the remedy and 
 were not a defence in that state. This ruling is repeated in Wil- 
 
 .lard V. Sturm, 96 Iowa 555, and applied to the proceedings in gar- 
 nishment now under review. 
 
 It follows from these views that the Iowa court had jurisdic- 
 
 "tion, and that the Kansas courts did not give to the proceedings in 
 Iowa the faith and credit they had there, and were hence entitled 
 to in Kansas. 
 
 The judgment is reversed and the case remanded for further 
 proceedings not inconsistent zvith this opinion. 
 
II. KINDS OF JUDGMENTS. 
 
 Under this head prepare again upon Locke v. Hubbard, ante. 
 9; Cooper V. Reynolds, ante. 15; Wells v. American Express Co., 
 ante. 31; Parsons v. Parsons, ante. 34; Windsor v. McVeigh, 
 ante. 38; Pennoyer v. iV(?ff, ante. 48; Lindley v. O'Reilly, ante. 
 65; and, Chicago R. I. & P. Ry. Co. v. Sturm, ante. 71. 
 
 III. THE RECORD OF THE JUDGMENT. 
 
 1. FORM AND ESSENTIALS OF THE RECORD. 
 
 Under this head prepare again upon Wells v. American Ex- 
 press Co., ante, 31 ; and Jasper v. Schlessinger, ante, 3. 
 
 ROBERTS V. CONNELLEE. 
 71 Texas 11, 8 S. W. 626. (1888) 
 
 Right to Execution When Not Expressly Awarded — Other Special Or- 
 der — Form of Justice Court Records. 
 
 Action by John C. Roberts against C. U. Connellee to quiet 
 title to land. Judgment for defendant. Plaintiff appeals. Re- 
 persed. 
 
 Plaintiff claims by deed from the heirs of M. J. Hall. De- 
 fendant claims under a sheriff's deed given at a sale on execution, 
 on a judgment rendered by a justice of the peace against the ex- 
 ecutor of said Hall. 
 
 /. M. Moore and James C. Walker, for appellant. 
 
 No brief for appellee. 
 
FORM AND ESSENTIALS. 79 
 
 The Court by Collard, J. * * * Plaintiflf insists that no exe- 
 cution could issue upon the judgment rendered by the justice of 
 the peace, because it does not direct execution to issue, but, on the 
 contrary, directs that the claim be paid in due course of adminis- 
 tration. The judgment was rendered July 12, 1875 ; the alias 
 execution was issued November 14, 1879. We do not understand 
 that a justice of the peace must award execution as a part of the 
 judgment in order to authorize its issuance under the laws in force 
 at the time the judgment was rendered. The execution was is- 
 sued as a consequence of the judgment, as a ministerial act, to 
 enforce the judgment. There was no provision of the law of 
 1870, in force at the time the judgment was rendered, requiring 
 the award of execution to be made in the judgment. The act of 
 1870, upon the subject of final process upon judgments in general, 
 is : "And every justice shall, from time to time, when required by 
 a party having a judgment in his court, issue such executions or 
 other writs as may be necessary to enforce such judgments until 
 the same shall have been satisfied." Pas. Dig., § 6340. This 
 plainly indicates that the writ follows the judgment already ren- 
 dered, as a matter of course. Even in a suit for specific articles, 
 if the plaintiff recover, the statute directs that "judgment shall be 
 rendered for the specific articles if to be had, but if not, then for 
 their value ;" here the judgment ends, and to enforce it the statute 
 proceeds : "and the justice shall issue thereon his writ, directed 
 to some lawful officer, commanding him to put the plaintiff in pos- 
 session of the article or articles so recovered, if to be found, but 
 if not, then to proceed to make the value of such article or articles, 
 with legal interest from the date of the judgment and costs, as 
 under execution." Pas. Dig. § 6340. 
 
 It is certainly the rule that an execution must be authorized 
 by and must conform to the judgment ; that there must be a judg- 
 ment for costs, for instance, to authorize the clerk to issue execu- 
 tion for them. Criswell v. Ragsdale, 18 Texas, 445. But there 
 was no law in this state at the date of this judgment requiring the 
 court to award execution as a judicial act in a simple ['*i8] judg- 
 ment for debt. Our statutes simply directed that the clerks and 
 justices of the peace shall, after judgment, after a time stipulated. 
 
80 THE RECORD OF THE JUDGMENT. 
 
 or upon the rising of the court issue execution. If the contrary 
 were true, no judgment would be final without an order that exe- 
 cution issue. It has been held in this state that an entry by the 
 justice of the peace on his docket of the amount sued for, and that 
 "the defendant came forward and acknowledged judgment ;" giv- 
 ing the date, was as a final judgment. Wahrenberger v. Horan, 
 i8 Texas, 59. The docket entries of a justice of the peace, 
 styling the suit, amount of debt, and the following: "April 28. 
 Offset, proved and allowed for $20.50. Decree for balance,$7o.5o," 
 were held sufficient as a judgment. Hoiverton v. Luckie, 18 Id., 
 236. An entry of a verdict on a docket of a justice of the peace 
 was treated as sufficient entry of judgment. Davis v. Pinckney, 
 20 Texas, 341. 
 
 In the case of Clay v. Clay, 7 Texas, 251, the justice entered 
 upon his docket opposite the verdict : "Judgment rendered April 
 17, 1849." This was held sufficient as a judgment in a justice court. 
 The supreme court, in commenting upon it, say : "The entry of 
 judgment is informal and defective, and does not pursue the direc- 
 tions of the statute; but great liberality and indulgence are ex- 
 tended to the proceedings of justices of the peace who are not 
 supposed to be skilled in the forms of judicial proceedings ob- 
 served in courts of record. If their proceedings are intelligible 
 and attain the ends of substantial justice they are generally sus- 
 tained. See Freeman on Judgments, § 55 and note. We con- 
 clude that the judgment of the justice of the peace in the case 
 before us was a final judgment, notwithstanding it failed to award 
 execution, that an execution would follow as a consequence of the 
 judgment and would run against the property of the estate in the 
 hands of the executor Hall. The fact that the judgment required 
 the claim should be paid in due course of administration is imma- 
 terial. There was no administration in the probate court, and the 
 judgment could not be so collected. Such being the case, it was 
 collectible [*ip] by execution as allowed by law in case where the 
 executor controls the estate and executes the will independently of 
 the court. The Revised Statutes of this state, which took effect 
 September i, 1879, require that a judgment of justice of the peace 
 shall direct the issuance of such process as may be necessary to 
 
ENTERING AND AMENDING. 81 
 
 carry the judgment into execution." Rev. Stats., 1613. The 
 
 judgment in the case before us is not affected by the recent statute, 
 
 notwithstanding it was enacted before the execution was issued. 
 The statute quoted is directory only of judgments to be thereafter 
 
 rendered. 
 
 Other errors assigned need not be noticed further, as they 
 are incidentally disposed of in our conclusions above stated. On 
 account of errors of the court in admitting illegal evidence we con- 
 clude the cause should be reversed and remanded for a new trial. 
 
 Reversed and remanded. 
 
 2. ENTERING AND AMENDING THE RECORD. 
 
 Under this head prepare again upon Jasper v. Schlessinger 
 and Mayer, ante. 3 ; Brightman &• Co. v. Merrkvether, ante. 8 ; 
 and, Locke v. Hubbard, ante. 9. 
 
 BALCH ■& WIPE V. SHAW. 
 61 Massachusetts (7 Gushing) 282. (1851) 
 Judicial Records — Amendment — Evidence — Notice — Jurisdiction — Collat- 
 eral Attacl<. 
 
 Writ of entry; dated Aug. 25, 1849, by Benjamin L. Blach and 
 wife in this court against Robt. G. Shaw. Case reserved. Judg- 
 ment for the tenant. 
 
 Demandants claimed in right of the wife as heir of John Tilley. 
 The tenant relied on a record of the court of common pleas showing 
 a sale to him by the executors of Tilley by order of that court, at the 
 October term, 1824. Demandants objected to the record because 
 it was not made up and entered at large till 1838; and then without 
 sufficient record to make it up from, without notice, on the petition 
 of an improper person, that the clerk had no power to make up the 
 record then, and that the record as made up was not true. 
 
 L'. Gale for the demandants. 
 
 E. Blake for the tenant. 
 
 The Court by Fletcher, J. This is a writ of entry. The 
 demandants claim in right of the wife as heir of John Tilley, The 
 tenant claims under a sale by the executors of John Tilley, by vir- 
 
82 THE RECORD OF THE JUDGMENT. 
 
 tue of a license of the court of common pleas. To make out his 
 title, the tenant produced a record of the court of common pleas. 
 The case turns, therefore, upon the question whether the record 
 was rightfully amended, so that the tenant can maintain his title 
 on that record. 
 
 There can be no doubt that it is competent for a court of record, 
 under its general, inherent, and necessary authority, to correct the 
 mistakes and supply the defect of its clerk or recording officer, so 
 as to have the record conform to the actual facts and truth of the 
 case, and that this may be done at any time as well after as during 
 the term, nunc pro tunc. The length of time in this case, between 
 granting the license and making up the record, does not take away 
 the right or jurisdiction of the court. The authorities upon this 
 point are numerous and conclusive. This was not a case of want 
 of jurisdiction, in which the record cannot be amended, because, 
 there being an omission to act, there is nothing to record ; in such 
 case, the defect is not in the record, but in the action of the court. 
 
 It was further said in argument, that there was not sufficient 
 material from which to make up the record. But the court of com- 
 mon pleas, having the exclusive right and jurisdiction in the mat- 
 ter, were the proper judges of the necessity and propriety of extend- 
 ing the record, and of the proofs and of the sufficiency of the proofs 
 upon which to proceed. Such a record, when made up, is conclu- 
 sive, until altered or set aside by the same or some other court 
 having jurisdiction, but it cannot be drawn in question collaterally 
 when such record is used or relied upon in support of a title. 
 
 It was further, said, that the extended record was invalid, 
 because made without notice. But this was not a case for [*<?c?5] 
 notice. Surely a court of record need not give notice to all the 
 world to come in and show cause why it should not make its record 
 conform to the truth of the case. Any party, who supposes he can 
 show such cause, should apply to the court to have the record set 
 aside or expunged, after it is made. 
 
 Then as to the objection that the record was extended upon 
 the application of Vinal, who was not interested in the premises- 
 demanded in this suit. If he had an interest in the demanded prem- 
 ises, or if he had no interest, it would not be material. The court 
 
CONCLUSIVENESS. 83 
 
 might amend their records upon their own motion', or upon the 
 motion or suggestion of any one interested. It is not a proceed- 
 ing in which there need be any parties. It is the act of the court 
 itself, con-ecting its own records, to make them conform to the truth 
 of the case. 
 
 These general views will render it unnecessary to consider 
 particularly some other ingenious arguments which were offered 
 b)- the counsel for the demandant. The court being of opinion 
 that there was a sufficient record of the order of the court of com- 
 mon pleas to sell the premises conveyed to Jones, there must be 
 
 Judgment for the tenant. 
 
 3. CONCLUSIVENESS OF THE RECORD. 
 
 MICHBLS V. STORK. 
 52 Michigan 260, 17 N. W. 833. (1883) 
 
 Judicial Records — Officer's Return — Presumption of Verity — Collateral; 
 
 Attack. 
 
 Trover by Henry Stork against Jacob Michels in the Superior 
 Court of Detroit. From judgment for plaintiff defendant brings 
 error. Reversed. 
 
 [■l^. B. Jackson and Conely, Maybury & Lucking for appellant, 
 
 Brmvse T. Prentis for appellee. 
 
 Cooley, J. The only question important to the decision of 
 this case is,, whether an officer's return of service of process is con- 
 clusive upon the parties to the suit in which the process issued, 
 when brought in question in some collateral suit or proceeding. 
 
 Michels, it appears, on August ip, 1874, procured an attach- 
 ment from a justice of the peace against the chattels of Stork, and 
 put it into the hands of Constable John Gnau for service. The 
 constable made return that by virtue of the writ he did, on the lotb 
 day of August, 1874, seize the goods. and chattels of the defendant 
 mentioned in the inventory annexed thereto, and that on the 12th 
 day of August, 1874, he served upon the defendant a copy of the 
 writ and inventory, duly certified by him, by leaving the same at 
 his usual place of abode with his wife, a person of [^^dr] suitable 
 
84 THE RECORD OF THE JUDGMENT. 
 
 age and discretion, whom he informed of its contents. What fur- 
 ther was done in the attachment suit does not appear. 
 
 The present action is trover for the conversion of the property 
 which the constable returned that he had attached. The plaintiff 
 claims that the constable did not attach the goods at all, but that 
 the officer and the defendant together took them away, and that 
 they were immediately left by the officer with the defendant, and 
 plaintiff never saw them afterwards. * * * 
 
 The question in this court arises upon the following instruc- 
 tions of the trial judge: * * * 1*262] * * * 
 
 "Now, you are to determine whether Mr. Gnau did really levy 
 an attachment on that property or not. If he did, that ends the 
 suits. You are to determine, in the second place, if he did not levy 
 an attachment, whether he and Michels went there to get the goods 
 into Michels's possession simply for that purpose, and not for the 
 purpose of levying the attachment. If Michels thought that Gnau 
 had attached the goods and Gnau had the proper papers to attach 
 them — and for the purposes- of this case I charge you that he did 
 have — then Michels would not be responsible ; that is, if he was 
 .acting in good faith in the transaction. 
 
 "You see the question is a very simple one. It all turns on 
 whether Michels and Gnau went there for the purpose of levying 
 that attachment or whether they went there for the purpose of 
 giving Michels possession of those goods, without any regard to 
 the attachment. 
 
 "I charge, as a matter of law, it makes no difference what the 
 officer returned, so far as Michels was concerned." * * * 
 
 The purport of this instruction is, that the return is to be taken 
 as prima facie evidence of the facts stated in it, [*^(5j] but that it 
 may be contradicted by parol evidence, and if the jury are con- 
 vinced by such evidence that the return is untrue, they are at liberty 
 to disregard it. And the jury in this case did disregard it, and 
 gave judgment for the plaintiff, grounding their action upon a 
 finding that no attachment had in fact ever been made. 
 
 Had the suit been brought against the officer for a false return, 
 it is conceded that the plaintiff would have been at liberty to show 
 the falsity of the return by any evidence fairly tending to show it. 
 
CONCLUSIVENESS. 85 
 
 He might do this also by affidavit on a motion in the same suit to 
 set aside the return ; and this is not an uncommon proceeding when 
 the truth of the return is disputed. Chapman v. Cumming, 17 N. 
 J. L. II ; Carr v. Commercial Bank, 16 Wis. 50; Bond v. Wilson, 
 8 Kan. 228, 12 Am. Rep. 466. It has also been held that the 
 officer's return may be contradicted in equity in a proceeding insti- 
 tuted to set aside a judgment founded upon it. Owens v. Ran- 
 stead, 22 111. 161 ; Navconib v. Detuey, 27 Iowa 381 ; Bridgeport 
 Savings Bank v. Eldredge, 28 Conn. 556; Bell v. Williams, 38 
 Tenn. (i Head) 229; Ridgeway v. Bank of Tennessee, 30 Tenn. 
 (11 Humph.) 523. See Fowler v. Lee, 10 G. & J. (Md.) 358, 32 
 Am. Dec. 172 ; Leftwick v. Hamilton, 9 Heisk. 310. It is also held 
 that the officer's return is not conclusive as to facts stated therein 
 which he must learn by inquiry of others ; as, for example, that 
 the person upon whom the process was served was the incumbent 
 of a certain corporate office, such as that of president of a bank. 
 St. John V. Tombeckbee Bank, 3 Stew. (Ala.) 146; Rowe v. Table 
 &c. Co., 10 Cal. 441 ; Wilson v. Spring &c. Co., 10 Cal. 445. See 
 Chapman v. Cumming, 17 N. J. L. 11; Sanford v. Nichols, 14 
 Conn. 324; and compare State v. O'Neill, 4 Mo. 221. And a per- 
 son not a party or privy to the proceeding in which the return is 
 made, is never concluded by it from showing the real fact. Nail 
 V. Granger, 8 Mich. 450. And where suit is brought upon a for- 
 eign judgment, it seems to be competent to disprove jurisdiction 
 by showing, in contradiction of the officer's return, that no service 
 was made upon the party defendant. 1*264] Knowles v. Gas- 
 light &c. Co. 86 U. S. (19 Wall.) 58; Thompson v. Whitman, 85 
 U. S. (18 Wall.) 457; Carleton v. Bickford, 79 Mass. (13 Gray) 
 591 ; McDermott v. Clary, 107 Mass. 501 ; Gilman v. Gilman, 126 
 Mass. 26, 30 Am. Rep. 646; Bowler v. Huston, 30 Grat. (Va.) 
 266, 32 Am. Rep. 673 ; Lowe v. Lowe, 40 Iowa 220. 
 
 None of these cases are analogous to the one before us; but 
 it must be conceded that there are cases which are directly in point, 
 and which tend to support the instructions. Cunningham v. 
 Mitchell, (Va.) 4 Rand. 189; Butts v. Francis, 4 Conn. 424; Wat- 
 son V. Watson, 6 Conn. 334; Hutchins v. Johnson, 12 Conn. 376; 
 Smith V. Law, 27 N. Car. (5 Ired. L.) 197; Joyner v. Miller, 55 
 
86 THE RECORD OF THE JUDGMENT. 
 
 Miss. 208; Abell v. Simon, 49 Md. 318; Gary v. State, 11 Tex. 
 App. 527 ; Dasher v. Dasher, 47 Ga. 320 ; Elder v. Cozart, 59 Ga. 
 199; Jones V. Commercial Bank, 6 Miss. (5 How.) 43, 35 Am. 
 Dec. 419. The Georgia cases appear to be based upon a statute. 
 If it were important now to examine the other cases critically, some 
 of them might perhaps be distinguished, but their tendency is 
 unquestionably as above stated. 
 
 On the other hand, the ruling of this court in Green v. Kindy, 
 43 Mich. 279, is distinctly adverse to the instructions. It was there 
 held that the return of a sheriff to a writ of replevin, in which he 
 certified that the plaintiff in the suit had not filed a forthcoming 
 bond, was conclusive upon the parties, and would preclude any 
 such bond being set up. This case, which seems to have been over- 
 looked on the trial, is in entire accord with the English authori- 
 ties. Anonymous, Lofft 372 ; Bentley v. Hore, i Lev. 86 ; Flud. v. 
 Pennington, Cro. Eliz. 872; Rex. v. Elkins, 4 Burr. 2129; Har- 
 rington V. Taylor, 15 East 378; Gouhot v. De Crouy, 2 Dowl. P. 
 C. 86. But it is also in accord with the great preponderance of 
 authority in this country. In New York the doctrine was strongly 
 asserted in a case in which a constable had served his own pro- 
 cess, which the law of that state allowed. "The constable's 
 return," says the court, "is conclusive against the defendant in the 
 cause in which it is made. He cannot traverse the truth of it by 
 a plea in [*26§] abatement or otherwise; but if it be false, the 
 defendant's remedy is in an action against the constable for a false 
 return." See Allen v. Martin, 10 Wend. 300; Boomer v. Laine, 
 10 Wend. 525. In Pennsylvania it was said in an early case : "It 
 is a well-settled principle, applicable to every case, that credence is 
 to be given to the sheriff's return; so much so, that there can be^, 
 no averment against it in the same action. A party may make an 
 averment consistent with the sheriff's return, or explanatory of its 
 legal bearing and effect, where the return is at large ; but he cannot 
 aver a matter directly at variance with the facts stated in return, 
 and contradictory to it, and showing it to be false. If a party be 
 injured by the false return of the sheriff", his remedy is by action 
 on the case against the sheriff who makes it." Knowles v. Lord, 
 4 Whart. 500; s. c. 34 Am. Dec. 525. Like decisions were made 
 
CONCLUSIVENESS. 8^ 
 
 in Zion ChtircJi v. St. Peter's, 5 W. & S. 215; Diller v. Roberts, 
 13 S. & R. 60; and the doctrine is recognized in Pa.vson's Appeal, 
 
 49 Penn. St. 195. It has also been distinctly and strongly affirmed 
 in Massachusetts cases. Slayton v. Chester, 4 Mass. 478 ; Bott v. 
 Burnell, 11 Mass. 163; Winchell v. Stiles, 15 Mass. 230; Bean v. 
 Parker, ly Mass. 591 ; Campbell v. Webster, 81 Mass. (15 Gray) 
 28; Dooley v. Wolcott, 86 Mass. (4 Allen) 406. In New Hamp- 
 shire it is said : "As between the parties, the return of the sheriff 
 is conclusive upon all matters material to be returned ; and cannot 
 be contradicted by such parties or their privies, or by bail, endorsers, 
 or others, whose rights or liabilities are dependent upon the suit. 
 The remedy for a false return is by suit against the sheriff, and 
 not by defeating the proceedings in which such return is made." 
 Bolles V. Bd-wen, 45 N. H. 124, following Brown v. Davis, 9 N. H. 
 76; Wendell v. Mugridge, 19 N. H. 109; Angler v. Ash, 26 N. H. 
 99; Messer v. Bailey, 31 N. H. 9; Clough v. Monroe, 34 N. H. 
 381. To the same purport are the Kentucky cases. Trigg v. 
 Lewis's E.v'rs., 13 Ky. (3 Lift.) 129; Smith v. Hornback, 10 Ky. 
 (3 A. K. Marsh.) 379. In Vermont and Maine the cases in Massa- 
 chusetts have been followed with approval. Eastman v. Curtis, 
 4 Vt. 616; Swift V. Cobb, 10 Vt. 282; [*266] Wood v. Doane, 20 
 Vt. 612; Stratton v. Lyons, 53 Vt. 130; Gilson v. Parkhurst, 53 
 Vt. 384; Stinson v. Snozv, 10 Me. 263; Fairfield v. Paine, 23 Me. 
 498, 41 Am. Dec. 357. The decisions in Indiana are to the same 
 effect. Rowell v. Klein, 44 Ind. 290 ; Splahn v. Gillespie, 48 Ind. 
 397; Stockton V. Stockton, 59 Ind. 574; Clark v. Shaw, 79 Ind. 164. 
 
 50 are those in North Carolina, Arkansas, Minnesota, and Neb- 
 raska. Hunter v. Kirk, 11 N. Car. (4 Hawks) 277; Rose v. Ford, 
 2 Ark. 26 ; Tiillis v. Brawley, 3 Minn. 277, Gil. 195 ; Johnson v. 
 Jones, 2 Neb. 126. In Illinois the English rule has been recog- 
 nized : Fitzgerald v. Kimball, 86 111. 396 ; though it is said some 
 exceptions are made to it in the furtherance of justice in that state. 
 Ryan v. Lander, 89 111. 554. What the exceptions are is not 
 pointed out in that case; but in the subsequent case of Hunter v. 
 Stoneburner, 92 111. 75, 79, we have the following statement as the 
 result of prior decisions : "It is in rare cases only, that the return 
 of the officer can be contradicted, except in a direct proceeding by 
 
88 THE RECORD OF THE JUDGMENT. 
 
 suit against the ofificer for a false return. In all other cases, almost 
 without an exception, the return is held to be conclusive. An 
 exception to the rule is, where some other portion of the record in 
 the same case contradicts the return, but it cannot be done by evi- 
 dence dehors the record." 
 
 These citations are sufficient, and more than sufficient, to 
 justify the previous ruling by this court. It follows that the 
 instruction complained of was erroneous, and it must be reversed 
 with costs and a new trial ordered. 
 
 Graves^ C.J., and Sherivood, J., concurred. 
 
 Campbell, J., dissenting. As I understand the controversy in 
 this case, the dispute was not whether the constable took the prop- 
 erty, but whether the taking was not by process designed by the 
 parties as a mere pretext for getting possession, and not for any 
 legitimate purpose. The case is one of abuse of process for illegal 
 purposes, in which it was claimed, and the jury must have found, 
 that Michels was active throughout as connected with the con- 
 stable. I do not [*267] understand that a fraudulent use of proc- 
 ess to get possession of property, and for no other purpose is, under 
 any circumstances, a justification to any person concerned in the 
 fraud. 
 
 I think the court committed no error, and that the judgment 
 should be affirmed. 
 
 FERGUSON V. CRAWFORD. 
 70 New York 253, 26 Am. Rep. 589. (1877) 
 
 Judgments, Domestic and Foreign — Record — Conclusiveness — Collateral 
 
 Attack. 
 
 Foreclosure proceeding by Orson J. Ferguson against Stephen 
 H. Crawford and others. From a judgment of the general term 
 affirming a judgment in favor of defendants entered on trial at the 
 special term plaintiff appeals. Reversed. 
 
 JVilliam F. Purdy, for the appellant. 
 
 Wilson Brown, Jr., for the respondents. 
 
 The Court by Rapallo, J. This action was brought to fore- 
 close a mortgage, held by the plaintiff, on certain real estate in the 
 county of Westchester. One of the defences was, that the rights 
 
CONCLUSIVENESS. 8&> 
 
 of the plaintiff, as mortgagee, had been barred by a judgment of 
 foreclosure of a mortgage prior to his, in favor of one McFarqua- 
 har, covering the same premises, under which judgment the prem- 
 ises had been sold to the defendant [*^33] Horton. It was alleged' 
 in the answer that the plaintiff was a defendant in the McFarqua- 
 har action, in which the judgment had been rendered, and appeared' 
 therein, by John W. Mills, as his attorney, but did not put in any 
 answer. 
 
 On the trial of the present action, the defendants, in support 
 of this defense, put in evidence the judgment-roll in the last-men- 
 tioned action, which roll contained a notice of appearance for the 
 present plaintiff, and a consent that judgment be entered, purport- 
 ing to be signed by Mills. The judgment was entered by default 
 for want of an answer, and on this consent, and recited that the 
 summons had been served on the defendants therein, and that none 
 of them had appeared, except the present plaintiff, by John W. 
 Mills, his attorney, and some others named in the judgment. 
 
 Thereupon the plaintiff called Mills as a witness, and offered 
 to prove by him, ist. That- the signature to the notice of appear- 
 ance and consent was a forgery ; 2d. That Mills was never author- 
 ized to appear for the plaintiff ; and 3d. That he never did appear 
 for him. 
 
 No proof of service of the summons on the plaihtiff is attached 
 to or contained in that judgment-roll, and it appears to be conceded 
 on the present argument, as matter of fact, that no such service was- 
 made. The defendants rely wholly upon the effect of the recital 
 in the judgment and the notice of appearance contained in the judg- 
 ment-roll, and claim that in a collateral action these import absolute 
 verity and cannot be contradicted by extrinsic evidence. 
 
 They also claim that the case of Brozvn v. Nichols, 42 N. Y. 
 26, is decisive of this case. There a judgment had been recov- 
 ered against a defendant who had not been served with process,, 
 but for whom an attorney had appeared without authority, and it 
 was held by this court that the judgment could not be attacked on 
 that ground for want of jurisdiction in a collateral proceeding. 
 
 That decision does not reach the present case. It is not 
 founded upon any doctrine which precludes a party from showing,. 
 
'QO THE RECORD OF THE JUDGMENT. 
 
 as matter of fact, that he was never brought before [*^5(5] the 
 court, or appeared in it, but is based upon a long Hue of authority, 
 which holds that when an attorney of the court appears for a party 
 his appearance is recognized and his authority will be presumed 
 to the extent, at least, of giving validity to the proceeding. That 
 he is an officer of the court, amenable to it for misconduct, and to , 
 any party for whom he assumes to act without authority, for all 
 damages occasioned by such action, and for reasons of public pol- 
 icy the court holds the appearance good, leaving the aggrieved 
 ■party to his action for damages against the attorney, granting 
 relief against the judgment, only in a direct application, and in case 
 the attorney is shown to be irresponsible. Denton v. Noyes, 6 
 Johns. 296. This, however, is an entirely different case. The 
 ■offer was not merely to show that the attorney was not authorized 
 "to appear, but that he did not in fact appear, and that the pretended 
 appearance was a forgery. 
 
 None of the principles upon which the decisions in Denton v. 
 Noyes, and BrOivn v. Nichols rest, can be applied to such a case. 
 There is no act of any officer of the court which public policy 
 requires should be recognized. There is no party against whom 
 the innocent defendant can have redress. He is sought to be held 
 bound by a judgment when he was never personally summoned or 
 Tiad notice of the proceeding, which result has been frequently 
 declared to be contrary to the first principles of justice, and this is 
 sought to be accomplished by means of a judgment entered upon 
 forged papers. No principle of public policy requires or sanctions 
 ■sustaining such a judgment. The only difficulty in the case arises 
 upon the objection that the evidence offered tends to contradict 
 the record, and from the adjudications which attach to the judg- 
 ment of a court of general jurisdiction, a conclusive presumption 
 ■of jurisdiction over the parties, which cannot be contradicted except 
 by matter appearing on the face of the record itself. 
 
 It is an elementary principle recognized in all the cases that, 
 i:o give binding effect to a judgment of any court, whether of gen- 
 eral or limited jurisdiction, it is essential that [*^57] the court 
 ■should have jurisdiction of the person as well as the subject-mat- 
 ;ter, and that the want of jurisdiction over either may always be set 
 
CONCLUSIVENESS. 91 
 
 lip against a judgment when sought to be enforced, or any benefit 
 is claimed under it. There is no difference of opinion as to this 
 general rule, but the point of difficulty is as to the manner in which 
 this want of jurisdiction must be made to appear, in the case of a 
 judgment of a domestic court of general jurisdiction, acting in the 
 exercise of its general powers, when it comes in question in a col- 
 lateral action : Whether, when the record is silent as to the steps 
 taken to bring the parties into court, it may be proved by evidence 
 that they were not legally summoned and did not appear; or 
 whether, when the record recites that they were summoned or 
 ■appeared, such recitals may be contradicted by extrinsic evidence ; 
 or whether the jurisdiction over the person and subject-matter is 
 a presumption of law, which cannot be contradicted, unless it 
 -appears on the face of the record itself that there was a want of 
 jurisdiction, as in cases where the record shows that the service 
 of process was by publication or some other method than per- 
 sonal. 
 
 On these points there has been as much diversity of opinion, 
 •especially between the courts of this state and those of other states, 
 as upon any general question which can be mentioned, although 
 there has as yet been no authoritative adjudication in this state on 
 the subject. It is well settled by our own decisions, that in the 
 •case of a judgment of a court of general jurisdiction of a sister 
 state, although it is entitled to the benefit of the presumption of 
 jurisdiction which exists in favor of a judgment of one of our own 
 ■courts, yet the want of jurisdiction may 'be shown by extrinsic evi- 
 dence, and that even a recital in the judgment record that the 
 ■defendant was served with process, or appeared by attorney, or of 
 ■any other jurisdictional fact, is not conclusive, but may be con- 
 tradicted by extrinsic evidence. Borden v. Fitch, 15 John. 121; 
 Starbuck v. Murray, 5 Wend. 148; Shumway v. S tillman, 6W end. 
 447 > Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 N. 
 Y. 30. [*258] 
 
 And the same rule prevails in some of the other states in 
 regard to the judgments of courts of sister states. Although some 
 have held, even in regard to such a judgment, that if the record 
 •contains recitals showing jurisdiction, they cannot be contradicted. 
 
92 THE RECORD OF THE JUDGMENT. 
 
 Field V. Gibbs, i Peters C. C. R., 155 [Fed. Cas. No. 4,766] ; Rob- 
 erts V. Caldivell, 35 Ky. (5 Dana) 512; Ewer v. Coffin, 55 Mass. 
 (i Cush.) 23; Rathbone v. Terry, i R. I. 73; Shelton v. Tiffin, G 
 How. (U. S.) 163, 186. 
 
 After considerable research, I have been unable to find a single- 
 authoritative adjudication, in this or any other state, deciding that 
 in the case of a domestic judgment of a court of general jurisdic- 
 tion, want of jurisdiction over the person may be shown by extrin- 
 sic evidence, while there are a great number of adjudications in 
 neighboring states, holding that, in the case of such judgments,, 
 parties and privies are estopped in collateral actions to deny the 
 jurisdiction of the court over the person as well as the subject- 
 matter, unless it appear on the face of the record that the court had 
 not "acquired jurisdiction; and that in such cases there is a conclu- 
 sive presumption of law that jurisdiction was acquired by service- 
 of process or the appearance of the party. The cases are very 
 numerous, but the citation of a few of them will suffice. 
 
 In Cook V. Darling, 18 Pick. 393, in an action of debt on a 
 domestic judgment, the defendant pleaded that, at the time of the- 
 supposed service upon him of the writ in the original action, he was 
 not an inhabitant of the state of Massachusetts; that he had no- 
 notice of the action, and did not appear therein. 
 
 This plea was held bad on demurrer, on the ground that the 
 judgment could not be impeached collaterally. In Granger v. 
 Clarke, 22 Maine 128, also an action on a judgment, the plea was 
 the same, with the addition that the judgment had been obtained by 
 fraud; bvit it was held to constitute no defense. Coit v. Haven 
 30 Conn. 190, was a scire facias on a judgment, and the defend- 
 ant pleaded that the writ in the original action was never served 
 upon him, etc. ; and the [*2Jp] court held, in an elaborate opinion,, 
 that a judgment of a domestic court of general jurisdiction could 
 not be attacked collaterally, unless the want of jurisdiction appeared 
 upon the face of the record, and that jurisdictional facts, such as- 
 the service of the writ and the like, were conclusively presumed in 
 favor of such a judgment, unless the record showed the contrary, 
 although this rule did not apply to foreign judgments, or judg- 
 ments of the courts of sister states, or to domestic judgments of 
 
CONCLUSIVENESS. 93 
 
 inferior courts, and that the only remedy in such a case was by writ 
 of error or appHcation to a court of equity. 
 
 The same rule is held in Penobscot R. R. Co. v. Weeks, 52 
 Maine 456 ; Wingate v. Hayzvood, 40 N. H. 437 ; Clark v. Bryan, 
 16 Md. 171 ; Callen v. Ellison, 13 Ohio St. 446; Horner v. Doe, 
 I Ind. 131 ; Wright v. Marsh, 2 G. Greene (Iowa) 94; Prince v. 
 Griffin, 16 Iowa 552, and in numerous other cases which are 
 referred to in the case of Hahn v. Kelly, 34 Cal. 391, which adopts 
 the same rule and contains a full and instructive discussion of the 
 question. 
 
 There are many cases in other states, and in the courts of the 
 United States, containing expressions general in their character, 
 which would seem to sanction the doctrine that a want of jurisdic- 
 tion over the person or subject-matter may in all cases be shown 
 by extrinsic evidence, and they are sometimes cited as authorities to 
 that effect. Elliott v. Piersol, 26 U. S. (i Peters) 328, 340; Hol- 
 lingsworth v. Barbour, 29 U. S. (4 Peters) 466 ; Hickey v. Steivart, 
 44 U. S. (3 How.) 750; Shrivcr v. Lynn, 43 U. S. (2 How.) 43; 
 Williamson v. Berry, 49 U. S. (8 How.) 495; same v. Ball, same 
 566; Enos V. Smith, 15 Miss. (7 Sm. & M.) 85; Campbell v. 
 Brozvn,y Miss. (6 How.) io6;Shaefer v.Gates,4i Ky. (2 B. Mon.) 
 453 ; Wilcox V. Jackson, 38 U. S. ( 13 Peters) 498 ; Miller v. Ezving, 
 16 Miss. (SSm.&M.) 421, and numerous other cases not cited. But 
 an examination of these cases discloses that they all relate either to 
 judgments of inferior courts, or courts of limited jurisdiction, or 
 courts of general jurisdiction acting in the exercise of special statu- 
 tory powers, which proceedings stand on the [*i'do] same footing 
 with those of courts of limited and inferior jurisdiction (3 N. Y. 
 511), or courts of sister states, or to cases where the want of juris- 
 diction appeared on the face of the record, or to cases of direct 
 proceedings to reverse or set aside the judgment. I have not found, 
 one which adjudicated the point now under consideration, other- 
 wise than those to which I have referred. There are some cases 
 which hold that the want of authority of an attorney to appear may 
 be shown by extrinsic evidence, although the record states that an 
 attorney appeared for the party, but those are placed expressly on 
 the ground that such evidence does not contradict the record. 
 
94 THE RECORD OF THE JUDGMENT. 
 
 Bodurtha v. Goodrich, 69 Mass. (3 Gray) 508; Shelton v. TiMn, 
 47 U. S. (6 How.) 163, 1S6; Harris v. Hardeman, 55 U. S. (14 
 How.) 334, 340. Those cases are, however, in conflict with 
 the decision of this court, in Brown v. Nichols, 42 N. Y. 26, and 
 in many other cases. 
 
 The learned annotators of Smith's Leading Cases, Hare & 
 Wallace, i Smith L. Cases, vol. i, p. 842 (marg.) sum the matter 
 up by sa^ang: "Whatever the rule may be where the record is 
 silent, it would seem clearly and conclusively established by a 
 weight of authority too great for opposition, unless on the ground 
 of local and peculiar law, that no one can contradict that which the 
 record actually avers, and that a recital of notice or appearance, 
 or a return of service by the sheriff in the record of a domestic court 
 of general jurisdiction, is absolutely conclusive and cannot be dis- 
 proved by extrinsic evidence." 
 
 It is quite remarkable, however, that notwithstanding the for- 
 midable array of authority in its favor, the courts of this state have 
 never sustained this doctrine by any adjudication, but on the con- 
 trary the great weight of judicial opinion, and the views of some of 
 our most distinguished jurists, are directly opposed to it. 
 
 As has been already stated, our courts have settled by adjudi- 
 cation in regard to judgments of sister states, that the question 
 oi jurisdiction may be inquired into, and a want of jurisdiction over 
 the person shown by evidence, [*2(5j] and have further decided 
 (in opposition to the holding of courts of some of the other states) 
 that this may be done, even if it involves the contradiction of a 
 recital in the judgment record. In stating the reasons for this con- 
 clusion, our courts have founded it on general principles, quite as 
 applicable to domestic judgments as to others, and save in one 
 case, Kerr v. Kerr, 41 N. Y. 272, have in their opinions made 
 .no discrimination between them. Borden v. Fitch, 15 Johns. 121 ; 
 Starbuck v. Murray, 5 Wend. 148; Noyes v. Butler, 6 Barb. 613, 
 and cases cited. 
 
 When we come to consider the effect of these authorities, it 
 is difficult to find any solid ground upon which to rest a distinc- 
 tion between domestic judgments and judgments of sister states 
 in regard to this question, for under the provisions of the consti- 
 
CONCLUSIVENESS. 
 
 95' 
 
 ttition of the United States, which requires that fuh faith and 
 credit shall be given in each state to the public acts, records and 
 judicial proceedings of every other state, it is now well settled that 
 when a judgment of a court of a sister state is duly proved in a 
 court of this state, it is entitled here to all the effect to which it is 
 entitled in the courts of the state where rendered. If conclusive 
 there it is equally conclusive in all the states of the union; and 
 whatever pleas would be good to a suit thereon in the state where- 
 rendered, and none others can be pleaded in any court in the United 
 States. Hampton v. McConnel, i6 U. S. (3 Wheaton) 234; Story 
 Com. on Cons., § 183 ; Mills v. Duryee, 11 U. S. (7 Cranch) 481. 
 
 In holding, therefore, that a defense that the party was not 
 served and did not appear, although the record stated that he did, 
 was good, our courts must have held that such is the law of this 
 state and the common law, and consequently, that in the absence 
 of proof of any special law to the contrary in the state where the 
 judgment was rendered, it must be presumed to be also the law of 
 that state. The judgments of our courts can stand on no other 
 logical basis. The distinction which is made in almost all the other 
 states of the union between the effect of domestic judgments and 
 judgments [*262'\ of sister states, in regard to the conclusiveness 
 of the presumption of jurisdiction over the person, is sought to be 
 explained, by saying that in regard to domestic judgments the party 
 aggrieved can obtain relief by application to the court in which the 
 judgment was rendered, or by writ of error, whereas in the case 
 of a judgment rendered against him in another state he would 
 be obliged to go into a foreign jurisdiction for redress, which would 
 be a manifestly inadequate protection ; and therefore the consti- 
 tution may be construed so as to apply only where the persons 
 affected by the judgment were within the operation of the pro- 
 ceeding. This explanation, however, does not remove the dififi* 
 culty in making the distinction, for if there is a conclusive presump- 
 tion that there was jurisdiction, that presumption must exist in one 
 case as well as in the other. The question whether or not the party 
 is estopped, cannot be made to depend upon the greater inconven- 
 ience of getting rid of the estoppel in one case than in another. 
 
 But aside from this observation as to the effect of the authori- 
 
'"96 THE RECORD OF THE JUDGMENT. 
 
 ties, an examination of them shows that our courts did in fact pro- 
 ceed upon a ground common to both classes of judgments. The- 
 reasons are fully stated in the case of Starbtick v. Murray, 5 Wend. 
 148. In that case, which was an action upon a Massachusetts 
 judgment, the defendant pleaded that no process was served on 
 him in the suit in which the judgment sued on was rendered, and 
 that he never appeared therein in person or by attorney, and this 
 plea was held good, notwithstanding that the record of the judg- 
 ment stated that the defendant appeared to the suit. Marcy, J., 
 in delivering the opinion of the court, and referring to the argu- 
 ment that the defendant was estopped from asserting anything 
 against the allegation of his appearance contained in the. record, 
 says: "It appears to me that this proposition assumes the very 
 fact to be established, which is the only question in issue. For what 
 purpose does the defendant question the jurisdiction of the court? 
 Solely to show that its proceedings and judgments are void, and 
 .therefore the supposed record is not [*^(5j] in truth a record. If 
 the defendant had not proper notice of, and did not appear to, the 
 original action, all the state courts, with one exception, agree in 
 ■ opinion that the paper introduced, as to him, is no record. But if 
 he cannot show even against the pretended record that fact, on the 
 alleged ground of the uncontrollable verity of the record, he is 
 deprived of his defense by a process of reasoning that is to my 
 mind little less than sophistry. The plaintiff in effect declares to 
 the defendant — the paper declared on, is a record, because it says 
 you appeared; and you appeared, because the paper is a record. 
 This is reasoning in a circle. The appearance makes the record 
 uncontrollable verity, and the record makes the appearance an unim- 
 peachable fact." And again, at p. 160, he says : "To say that the 
 defendant may show the supposed record to be a nullity, by show- 
 ing a want of jurisdiction in the court which made it, and at the 
 same time to estop him from doing so because the court has inserted 
 in the record an allegation which he offers to prove untrue, does 
 ■not seem to me to be very consistent." 
 
 This is but an amplification of what is sometimes more briefly 
 expressed in the books, that where the defence goes to defeat the 
 Tecord, there is no estoppel. That the reasoning of Marcy, J., is 
 
CONCLUSIVENESS. 97 
 
 applicable to domestic judgments, is also the opinion of the learned 
 annotators to Phillip's Evidence. (Cowen & Hill's notes, ist ed., 
 p. 8oi, note 551.) Referring to the opinion of Marcy, J., before 
 cited, they say: "The same may be said respecting any judgment, 
 sentence or decree. A want of jurisdictioiiyin the court pronounc- 
 ing it may always be set up when it is sought to be enforced, or 
 when any benefit is claimed under it ; and the principle which ordi- 
 narily forbids the impeachment or contradiction of a record has 
 no sort of application to the case." The dicta of our judges are 
 all to the same effect, although the precise case does not seem to 
 have arisen. In Bigelow Y.Stearns, 19 Johns. 39, 41, Spencer, Ch. J., 
 laid down the broad rule that if a court, whether of limited juris- 
 diction or not, undertakes to hold cognizance of a cause without 
 having gained [■''264] jurisdiction of the person by having him 
 before them in the manner required by law, the proceedings are 
 void. In Latham v. Edgerton, 9 Cow. 227, Sutherland, J., in 
 regard to a judgment of a court of common pleas, says : "The 
 principle that a record cannot be impeached by pleading, is not 
 applicable to a case like this. The want of jurisdiction is a matter 
 that may always be set up against a judgment when sought to be 
 enforced or where any benefit is claimed under it." Citing Mills 
 V. Martin, 19 Johns. 7, 33. He also says (p. 229) : "The plaintiff 
 below might have applied to the court to set aside their proceed- 
 ings, but he was not bound to do so. He had a right to lie by until 
 the judgment was set up against him, and then to show that the 
 proceedings were void for want of jurisdiction." In Davis v. Pack- 
 ard, 6 Wend. 327, 332, in the court of errors, the chancellor, 
 speaking of domestic judgments, says: -"If the jurisdiction of the 
 court is general or unlimited both as to parties and subject-matter, 
 it will be presumed to have had jurisdiction of the cause unless it 
 appears affirmatively from the record, or by the showing of the 
 party denying the jurisdiction of the court, that some special cir- 
 cumstances existed to oust the court of its jurisdiction in that par- 
 ticular case." In Bloom v. Burdick, i Hill 130, Bronson, J., says: 
 "The distinction between superior and inferior courts is not of 
 much importance in this particular case, for whenever it appears 
 that there was a want of jurisdiction, the judgment will be void in 
 
98 THE RECORD OF THE JUDGMENT. 
 
 whatever court it was rendered ;" and in People v. Cassels, 5 Hill 
 164, 168, the same learned judge makes the remark, that no court 
 or officer can acquire jurisdiction by the mere assertion of it, or 
 by falsely alleging the existence of facts upon which jurisdiction 
 depends. In Harrington v. The People, 6 Barb. 607, 610, Paige, 
 J., expresses the opinion that the jurisdiction of a court, whether 
 of general or limited jurisdiction, may be inquired into, although 
 the record of the judgment states facts giving it jurisdiction. He 
 repeats the same view in Noyes v. Butler, 6 Barb. 613, 617, and in 
 Hard v. Ship-man, [^26^,] 6 Barb. 621, 623, 624, where he says 
 of superior as well as inferior courts, that the record is never con- 
 clusive as to the recital of a jurisdictional fact, and the defendant 
 is always at liberty to show a want of jurisdiction, although the 
 record avers the contrary. If the court had no jurisdiction, it had 
 no power to make a record, and the supposed record is not in truth 
 a record. Citing Starbuck v. Murray, 5 Wend. 158. The lan- 
 guage of Gridley, J., in Wright v. Douglass, 10 Barb. 97, iii, is 
 still more in point. He observes ; "It is denied by counsel for the 
 plaintiff, that want of jurisdiction can be shown collaterally to 
 defeat a judgment of a court of general jurisdiction. The true 
 rule, however, is that laid down in the opinion just cited (op. of 
 Bronson, J., in Bloom v. Burdick, i Hill 138 to 143), that in a 
 court of general jurisdiction, it is to be presumed that the court has 
 jurisdiction till the contrary appears, but the want of jurisdiction 
 may always be shown by evidence, except in one solitary case," 
 -viz : "When jurisdiction depends on a fact that is litigated in a 
 ■suit, and is adjudged in favor of the party who avers jurisdiction, 
 then the question of jurisdiction is judicially decided, and the judg- 
 ment record is conclusive evidence of jurisdiction until set aside 
 or reversed by a direct proceeding." 
 
 The general term, in that case, held that a judgment of the 
 supreme court was void for want of service of an attachment, 
 notwithstanding that the record averred that the attachment had 
 been duly served and returned, according to law. The judgment 
 in the case cited was reversed (7 N. Y. 564), but not upon the 
 point referred to here. It cannot, however, be held to be an adju- 
 dication upon that point, because the judgment was not rendered in 
 
CONCLUSIVENESS. 99 
 
 the exercise of the general powers of the court, but in pursuance of 
 a special statutory authority. 
 
 In the Chemung Canal Bank v. Judson, 8 N. Y. 254, the gen- 
 eral principle is recognized, that the jurisdiction of any court exer- 
 cising authority over a subject may be inquired into, and in Adams 
 V. The Saratoga & Washington R. R. Co. [*266], 10 N. Y. 328, 
 333, Gridley, J., maintains as to the judgments of all courts, that 
 jurisdiction may be inquired into, and disproved by evidence, not- 
 withstanding recitals in the record, and says that such is the doc- 
 trine of the courts of this state, although it may be different in 
 some of the other states, and perhaps also in England ; and he says 
 the idea is not to be tolerated, that the attorney could make up a 
 record or decree, reciting that due notice was given to the defend- 
 ant of a proceeding, when he never heard of it, and the decree held 
 conclusive against an offer to show this vital allegation false. That 
 was a case of special proceeding, and, therefore, not an authority 
 on the point. In Pendleton v. Weed, I7N.Y.72,75, where a judg- 
 ment of the supreme court was sought to be attacked collaterally, 
 it is said by Strong, J. : "It is undoubtedly true that the want of 
 jurisdiction of theperson is a good defense in answer to a judgment 
 when set up for any purpose, and that such jurisdiction is open for 
 inquiry;" and by Comstock, J., at p. "jy : "I assent to the doctrine 
 that where there is no suit or process, appearance on confession, 
 no valid judgment can be rendered in any court ; that in such a case 
 the recital in the record, of jurisdictional facts is not conclusive." 
 Citing Starbuck v. Murray. "I think it is always the right of a 
 party against whom. a record is set up, to' show that no jurisdic- 
 tion of his person was acquired, and consequently that there was 
 no right or authority to make up the record against him." Selden 
 and Pratt, JJ., concurred in these views, but the case was disposed 
 of on a different point. 
 
 In Porter v. Bronson, 29 How. Pr. 292, and S. C. 19, Abb. 
 Pr. 236, the court of common pleas of the city of New York held, 
 'at general term, that assuming the marine court to be a court 
 of record, a defendant in an action on a judgment of that court 
 might set up that he was not served with process and did not appear, 
 notwithstanding recitals in the record showing jurisdiction; and 
 
100 THE RECORD OF THE JUDGMENT. 
 
 mBolton v. Jacks, 6 Rob. i66, 198, JonesJ., says that it is now con- 
 ceded, at least in this state, that want of jurisdiction will render 
 void [*26y] the judgment of any court, whether it be of superior 
 or inferior, of general, limited or local jurisdiction, or of record or 
 not, and that the bare recital of jurisdictional facts in the record of 
 a judgment of any court, whether superior or inferior, of general 
 or limited jurisdiction, is not conclusive, but only prima facie evi- 
 dence of the truth of the fact recited, and the party against whom 
 a judgment is offered, is not by the bare fact of such recitals estop- 
 ped from showing, by affirmative proof, that they were untrue and 
 thus rendering the judgment void for want of jurisdiction. He 
 cites in support of this opinion, several of the cases which I have 
 referred to, and Dobson v. Pearce, 12 N. Y. 156, and Hatcher v. 
 Rocheleau, 18 N. Y. 86, 92. 
 
 It thus appears that the current of judicial opinion in this 
 state is very strong and uniform in favor of the proposition stated 
 by Jones, J., in 6 Rob. 198, and if adopted here, is decisive of the 
 present case. It has not as yet, however, been directly adjudicated, 
 and if sustained, it must rest upon the local law of this state, as 
 it finds no support in adjudications elsewhere. There are reasons, 
 however, founded upon our system of practice, which would war- 
 rant us in so holding. The powers of a court of equity being vested 
 in our courts of law, and equitable defences being allowable, there 
 is no reason why, to an action upon a judgment, the defendant 
 should not be permitted to set up, by way of defense, any matter 
 which would be ground of relief in equity against the judgment; 
 and it is conceded in those states where the record is held conclu- 
 sive, that when the judgment has been obtained by fraud, or with- 
 out bringing the defendant into court, and the want of jurisdiction 
 does not appear upon the face of the record, relief may be obtained 
 in equity. 
 
 The technical difficulty arising from the conclusiveness of the 
 record is thus obviated. In the present case, the judgment is set 
 up by the defendants as a bar to the plaintiff's action. But it must 
 be borne in mind, that this is an equitable action, being for the 
 foreclosure of a mortgage. The [*i'd6'] defendants set up the 
 foreclosure in the McFarquahar case as a bar, but being in a court 
 
CONCLUSIVENESS. 101 
 
 of equity, the plaintiff had a right to set up any matter showing that 
 the defendants ought not in equity to avail themselves of that judg- 
 ment. They offered to show that it was entered ex parte on- forged 
 papers. It does not appear that the plaintiff ever had any knowl- 
 edge of it, and it is not pretended that he was legally summoned. 
 Such a judgment would never be upheld in equity, even in favor 
 of one ignorant of the fraud and claiming bona fide under it. He 
 stands in no better position than any other party claiming bona Me 
 tinder a forged instrument. 
 
 The case is analagous in principle to that of the Bridgeport 
 Savings Bank v. Eldredge, 28 Conn. 556. That was a bill filed 
 by a second mortgagee to redeem mortgaged premises from a first 
 mortgagee. The first mortgagee had obtained a decree of fore- 
 closure against the second mortgagee, and the time limited for 
 redemption had expired. The record of the decree found the fact 
 that legal service of the bill in the first suit had been made on the 
 second mortgagee, but in fact none had been made, and he had no 
 actual knowledge of the pendency of the suit until after the time 
 limited for redemption had expired ; and he would have redeemed 
 if he had known of the decree. 
 
 It was held, i. That the decree was not in any proper sense 
 a bar to the present suit, as a judgment at law would be a bar to a 
 suit at law ; but that, without impugning the decree, the court could, 
 for equitable reasons shown, allow a further time for redemption. 
 
 2. That, therefore, the question whether the plaintiff could 
 contradict the record by showing that no service of the bill was, in 
 fact, made upon him, did not present itself as a technical one, to be 
 determined by the rules with regard to the verity of judicial rec- 
 ords, but only in its relation to the plaintiff's rights to equitable 
 relief, and therefore that evidence of want of notice was admissible. 
 
 The bill to redeem was not framed to open the former [*.?(5p] 
 decree, and contained no allegations adapted to or praying for such 
 relief, but was in the ordinary form of a bill for redemption, tak- 
 ing no notice of the previous decree. The decree was set up in 
 the answer, and it was averred that it was rendered on legal notice 
 to the plaintiff. The court, however, held that this defense might 
 be rebutted by evidence of facts which should preclude defendants 
 
102 THE RECORD OF THE JUDGMENT. 
 
 from taking advantage of a decree of which they could not con- 
 scientiously avail themselves. 
 
 Under the system of practice in this state, no reply to an 
 answer setting up new matter is required, but the plaintiff is allowed 
 to rebut it by evidence. Neither is it necessary to anticipate a 
 defense arising upon a deed or record by inserting matter in the 
 complaint in avoidance of it. The defense may never be set up, 
 and the plaintiff is not bound to suppose that it will be. The state 
 of the pleadings, therefore, presents no difficulty. The only ques- 
 tion which might be raised is, that McFarquahar, in whose name 
 the decree was obtained, should be before the court, but no such 
 objection was made at the trial, and if it had been, I do not see that 
 he has any interest in the question. All the parties claiming under 
 the decree and sale are parties to this action, and I see no reason 
 why the validity of the McFarquahar foreclosure cannot be tried 
 herein as well as upon a motion or in a separate suit to set aside 
 the decree. 
 
 The judgments should be reversed, and a new trial ordered 
 
 with costs to abide the event. 
 
 All concur ; Andrews, /., in result. 
 
 Judgment reversed. 
 
IV. AMENDING, VACATING, AND MODIFYING 
 JUDGMENTS. 
 
 BRONSON V. SCHULTEN. 
 104 United States (14 Otto) 410. (1881) 
 
 Judgments — Opening and Amending— Jurisdiction — When Allowabie. 
 
 Motion dated Dec. 27, 1876, in the circuit court for the south- 
 ern district of New York, by J. W. Schulten at al., to vacate a 
 judgment entered against Greene C. Bronson Aug. 5, i860, for 
 money paid under protest to him, as United States revenue col- 
 lector for the port of New York, by the plaintiffs. From an order 
 granting the motion Lucretia Bronson as executor of G. C. Bron- 
 son brings error. Reversed. 
 
 The Solicitor-General for the plaintiff. 
 
 5'. Shellabarger, J. M. Wilson, and A. W. Griswold, contra. 
 
 The Court by Miller, }. * * * [*4i3] It appears that the 
 original suit was commenced in one of the state courts, Sept. 2, 
 1858, and afterwards removed into the circuit court of the United 
 States, where plaintiffs filed a declaration containing the common 
 counts. It appears that they also served a bill of particulars, set- 
 ting out seventy-four entries of goods at the custom house, on 
 which they had been charged excessive duties by the defendant 
 Bronson, which they had paid under protest. The affidavit of 
 Murray, a refund clerk in the custom-house, states that in thirty- 
 four of these entries the sums which should have been allowed 
 plaintiffs were omitted in the adjustment. * * * {*/i.i4\ 
 
 We have thus a case in which plaintiffs sue for excessive 
 charges on account of these commissions paid on seventy-four 
 entries of goods, specifically set out in their bill of particulars. A 
 verdict is rendered in their favor fixing the precise error under 
 which the excessive duty had been exacted, and leaving to a referee 
 
1U4 AMENDING, VACATING, AND MODIFYING JUDGMENTS. 
 
 to ascertain the amount due on each of these entries. The referee 
 reports as to all but thirty-four, nearly half, of these entries, and 
 as to them makes no report. A judgment is rendered in conformity 
 to the report, the money paid and accepted, and seventeen years 
 afterwards the judgment is opened to correct the omission of these 
 thirty-four entries. 
 
 We are of opinion that, if there was any mistake in the report 
 of the referee and in the judgment rendered thereon, it was so 
 clearly due to the negligence and inattention of plaintiffs or their 
 attorney, that no case is made for relief in any of the modes known 
 to the law, of correcting an erroneous judgment after the term at 
 which it was rendered. 
 
 Stress is laid upon the fact in argument that the referee was 
 one of the clerks in the custom-house, who had access to all the 
 books and papers of the office. It is probable he was selected by 
 both parties because of his familiarity with those accounts, but he 
 is not mentioned in the order of reference as such clerk or officer. 
 Any other person so appointed would have been permitted to exam- 
 ine the necessary books and papers, and in this matter he must be 
 held to be, as no doubt he was, an impartial referee, representing 
 neither the collector nor the government which was to pay the sum 
 found due. 
 
 The plaintiffs had the same right to appear before him, exam- 
 ine his report and the evidence on which it was founded, to take 
 and urge to the court exceptions to it, as in case of any other refer- 
 ence. Nothing of the kind was done, and though it is here said 
 that no report at all was made as to thirty-four out of seventy-four 
 entries set out in plaintiffs' bill of particulars, no exception was 
 made to the report on that ground, nor was any inquiry made as to 
 the reason for such omission. It is [*./.i5] obvious that if this 
 had been done, the error which is now complained of would have 
 been corrected before the report of the referee was confinTied and 
 judgment rendered on it. 
 
 If, then, there was no question of lapse of time, or of the power 
 of the court over its own judgments after the term at which they 
 are rendered, and if this were a bill in chancery to set aside this 
 judgment on the ground of mistake, it is clear that no relief could 
 
AMENDING^ VACATING, AND MODIFYING JUDGMENTS. 105 
 
 be granted, because of the negligence, carelessness, and inatten- 
 tion and laches of the plaintiffs, or of their attorney, in the matter. 
 
 Does the power of the court over its own judgment, exercised 
 in a summary manner on motion, after the term at which it was 
 Tendered, extend beyond this? 
 
 In this country all courts have terms and vacations. The time 
 of the commencement of every term, if there be half a dozen a 
 year, is fixed by statute, and the end of it by the final adjournment 
 of the court for that term. This is the case with regard to all the 
 ■courts of the United States, and if there be exceptions in the state 
 courts, they are unimportant. It is a general rule of the law that 
 all the judgments, decrees, or other orders of the courts, however 
 conclusive in their character, are under control of the court which 
 pronounces them during the term at which they are rendered or 
 entered of record, and they may then be set aside, vacated, modified, 
 or annulled by that court. 
 
 But it is a rule equally well established, that after the term 
 has ended all final judgments and decrees of the court pass beyond 
 its control, unless steps be taken during that term, by motion or 
 otherwise, to set aside, modify, or correct them ; and if errors exist, 
 they can only be corrected by such proceeding by a writ of error 
 or appeal as may be allowed in a court which, by law, can review 
 the decision. So strongly has this principle been upheld by this 
 court, that while realizing that there is no court which can review 
 its decisions, it has invariably refused all applications for rehearing 
 made after the adjournment of the court for the term at which 
 the judgment was rendered. And this is placed upon the ground 
 that the case has passed beyond the control of the court. Brooks 
 V. Railroad Company, 102 U. S. 107; Public Schools v. Walker, 
 [*4i6] 9 Wall. 603 ; Brozvn v. Aspden, 14 How. 25 ; Cameron v. 
 McRoherts, 3 Wheat. 591 ; Sibbald v. United States, 12 Pet. 480; 
 United States v. The Brig Glamorgan, 2 Curtis, C. C. 236 ; Brad- 
 ford V. Patterson, 8 Ky. ( i A. K. Marsh. ) 464 ; Ballard v. Davis, 
 26 Ky. (3 J. J. Marsh.) 656. 
 
 But to this general rule an exception has crept into practice 
 in a large number of the state courts in a class of cases not well 
 defined, and about which and about the limit of this exception these 
 
106 AMENDING, VACATING, AND MODIFYING JUDGMENTS. 
 
 courts are much at variance. An attempt to reconcile them would! 
 be entirely futile. The exception, however, has its foundation in 
 the English writ of error coram vobis, a writ which was allowed 
 to bring before the same court in which the error was committed 
 some matter of fact which had escaped attention, and which was 
 material in the proceeding. These were limited generally to the 
 facts that one of the parties to the judgment had died before it was 
 rendered, or was an infant and no guardian had appeared or been 
 appointed, or was a feme covert and the like, or error in the proc- 
 ess through the default of the clerk. See Archbold's Practice. 
 
 In Rolle's Abridgement, p. 749, it is said that if the error be 
 in the judgment itself, a writ of error does not lie in the same, but 
 in another and superior court. 
 
 In Pickett's Heirs v. Legerwood, 7 Pet. 144, this court said 
 that the same end sought by that writ is now in practice generally 
 attained by motion, sustained, if the court require it, by affidavits; 
 and it was added, this latter mode had so far superseded the former 
 in the British practice, that Blackstone did not even notice the writ 
 as a remedy. 
 
 It is quite clear upon the examination of many cases of the 
 exercise of this writ of error coram vobis found in the reported 
 cases in this country, and as defined in the case in this court above 
 mentioned, and in England, that it does not reach to facts submit- 
 ted to a jury, or found by a referee, or by the court sitting to try 
 the issues ; and therefore it does not include the present case.' 
 
 There has grown up, however, in the courts of law a tendency 
 to apply to this control over their own judgments some of the prin- 
 ciples of the courts of equity in cases which go a little further in 
 administering summary relief than the old-fashioned {^41'/] writ 
 of error coram vobis did. This practice has been founded in the- 
 courts of many, of the states on statutes which conferred a pre- 
 scribed and limited control over the judgment of a court after the 
 expiration of the term at which it was rendered. In other cases 
 the summary remedy by motion has been granted as founded in the- 
 inherent power of the court over its own judgments, and to avoid 
 the expense and delay of a formal suit in chancery. It can easily 
 be seen how this practice is justified in courts of the states where- 
 
AMENDING^ VACATING^ AND MODIFYING JUDGMENTS. 107 
 
 a system has been adopted which amalgamates the equitable and 
 common-law jurisdiction in one form of action, as most of the 
 rules of procedure do. 
 
 It is a profitless task to follow the research of counsel for the 
 defendants in error through the numerous decisions of the state 
 courts cited by them on this point in support of the action of the 
 circuit court. The cases from the New York courts, which go 
 farthest in that direction, are largely founded on the statute of 
 that state, and we are of opinion that on this point neither the stat- 
 ute of that state nor the decisions of its courts are binding on the 
 courts of the United States held there. 
 
 The question relates to the pozver of the courts and not to the 
 mode of procedure. It is whether there exists in the court the 
 authority to set aside, vacate, and modify its final judgments after 
 the term at which they were rendered; and this authority can 
 neither be conferred upon nor withheld from the courts of the 
 United States by the statutes of a state or the practice of its 
 courts. 
 
 We are also of opinion that the general current of authority 
 in the courts of this country fixes the line beyond which they can- 
 not go in setting aside their final judgments and decrees, on motion 
 made after the term at which they were rendered, far within the 
 case made out here. If it is an equitable power supposed to be 
 here exercised, we have shown that a court of equity, on the most 
 formal proceeding, taken in due time, could not, according to its 
 established principles, have granted the relief which was given in 
 this case. 
 
 It is also one of the principles of equity most frequently relied 
 upon that the party seeking relief in a case like this f*^!!?] must 
 use due diligence in asserting^ his rights, and that negligence and 
 laches in that regard are equally effectual bars to relief. 
 
 As we have already seen, nothing hindered the plaintififs from 
 discovering the mistake of which they complain for seventeen years 
 but the most careless inattention to the proceeding in which they 
 had claimed these rights and had them adjudicated. 
 
 There was here an acquiescence for that length of time in the 
 correctness of a judgment which had been paid to them, when 
 
108 AMENDING^ VACATING, AND MODIFYING JUDGMENTS. 
 
 the error, if any existed, only needed a comparison of their own 
 bill of particulars with the report of the referee, to be seen, or at 
 least to be suggested. Having been negligent originally, and hav- 
 ing slept on their rights for many years, they show no right, under 
 any sound practice of the control of courts over their own judg- 
 ments, to have that in this case set aside. 
 
 It follows that the judgment of the circuit court must be 
 reversed, with directions that the order vacating the former judg- 
 ment be set aside, and the motion of plaintiffs in that matter be 
 
 overruled. 
 
 So ordered. 
 
V. THE EFFECT OF JUDGMENTS. 
 
 DUCHESS OF KINGSTON'S CASE. 
 April 15, 16, 19, 20, & 22, A. D. 1776; 16 George III. 
 
 Howell's State Trials, No. 551, folio ed. vol. 11, pp. 198-264, octavo 
 ed. (1814), pp. 355-652; this opinion in folio at p. 265, in octavo at p. 535; 
 reported in 2 Smith's Leading Cases, *424; see also, 1 Leach's Crown 
 Cases 173, Ambler's Cases 756, 763. 
 
 Res Judicata — How Available — Matters Incidentally in Issue — Who 
 Bound — Jurisdiction. 
 
 Trial by the House of Lords, for bigamy. Elizabeth, calling 
 herself duchess dowager of Kingston, the defendant herein, was 
 indicted at Hicks hall, Middlesex, at the general session in oyer 
 and terminer, for that, being the lawful wife of Augustus John 
 Hervey, now earl of Bristol, she feloniously married Evelyn Pierre- 
 pont, late duke of Kingston. She was granted a removal of the 
 prosecution to the House of Lords, there to be tried ; and Henry, 
 Earl of Bathurst, chancellor, was specially appointed lord high 
 steward to preside at the trial. Upon being arraigned before the 
 assembled lords in Westminster hall, Monday, April 15, she pleaded 
 not guilty, asked trial by her peers, and, without waiting for the 
 attorney general to open the case for the prosecution, addressed the 
 lords ; saying, that she had brought a suit in the consistory court 
 of the bishop of London against the said Hervey for boasting that 
 they were married ; to which he had appeared and affirmed his 
 claim ; and that by the sentence of said court it was decreed that she 
 was free from all matrimonial contracts or espousals with the said 
 Hervey ; and that she was advised that the said decree, still in force 
 and unimpeached, which she then asked leave to offer in evidence, 
 was conclusive, and that no other evidence ought to be offered or 
 stated respecting such pretended marriage. Thereupon the lords 
 listened for three days to elaborate arguments on both sides by the 
 ablest counsel in England as to the admissibility and effect of the 
 
110 THE EFFECT OF JUDGMENTS. 
 
 proposed evidence. The principal points argued were put in the 
 form of two questions by Sir Francis Hargrave, who assisted the 
 prosecution. After this profound argument the lords adjourned, 
 to the chamber of parliament to consider their decision, but with- 
 out coming to any conclusion, entered the order given below, ask- 
 ing the opinion of the judges on said questions, returned to the 
 court in Westminster hall, and proceeded with the trial while the 
 judges were conferring upon the questions propounded. 
 
 Atty.-Gen. Thurlow, afterwards lord chancellor; Sol. -Gen. 
 Wedderburn, afterwards successively lord chief justice of the 
 common pleas and lord chancellor; Mr. Dunning, and Dr. Harris 
 for the crown. 
 
 Mr. Wallace; Mr. Mansfield, afterwards lord chief justice 
 of the common pleas; Dr. Calvert; and Dr. Wynne, for the pris- 
 oner. 
 
 Friday, April ipth, i/^6. Ordered by the lords spiritual and 
 temporal in parliament assembled, that the following questions 
 be put to the judges, viz. : — 
 
 1. Whether a sentence of the spiritual court against a mar- 
 riage in a suit for jactitation of marriage is conclusive evidence so 
 as to stop the counsel for the crown from proving the said mar- 
 riage in an indictment for polygamy ? 
 
 2. Whether, admitting such sentence to be conclusive upon 
 such indictment, the counsel for the crown may be admitted to 
 avoid the effect of such sentence, by proving the same to have been 
 obtained by fraud or collusion ? 
 
 Whereupon, the lord chief justice of the court of common 
 pleas (Sir William De Grey, afterwards Lord Walsingham,) hav- 
 ing conferred with the rest of the judges present, delivered their 
 unanimous opinion upon the said questions, with his reasons, as 
 follow, viz. : — 
 
 My Lords: My Lord Chief Baron (Sir Sidney Staflford 
 Smythe) and the rest of my brethren, have desired me to deliver 
 their answer to the questions your lordships have been pleased to 
 propound to us. 
 
 That our opinion may be the better understood, it is necessary 
 
THE EFFECT OF JUDGMENTS. Ill 
 
 to make some observations on what has passed in argument upon 
 the subject. 
 
 What has been said at the bar is certainly true, as a general 
 principle, that a transaction between two parties, in judicial pro- 
 ceedings, ought not to be binding upon a third; for it would be 
 unjust to bind any person who could not be [*^"?5] admitted to 
 make a defence, or to examine witnesses, or to appeal from a judg- 
 ment he might think erroneous ; and therefore the deposition of 
 witnesses in another cause in proof of a fact, the verdict of a jury 
 finding the fact, and the judgment of the court upon facts found, 
 although evidence against the parties, and all claiming under them, 
 are not in general, to be used to the prejudice of strangers. There 
 are some exceptions to this general rule, founded upon particular 
 reasons, but not being applicable to the present subject, it is unnec- 
 essary to state them. 
 
 From the variety of cases relative to judgments being given in 
 evidence in civil suits, these two deductions seem to follow as gen- 
 erally true: first, that the judgment of a court of concurrent juris- 
 diction, directly upon the point, is as a plea, a bar, or as evidence, 
 conclusive, between the same parties, upon the same matter, directly 
 in question in another court ; secondly, that the judgment of a court 
 of exclusive jurisdiction, directly upon the point, is, in like manner, 
 conclusive upon the same matter, between the same parties, coming 
 incidentally in question in another court, for a different purpose. 
 But neither the judgment of a concurrent or exclusive jurisdiction 
 is evidence of any matter which came collaterally in question, 
 though within their jurisdiction, nor of any matter incidentally cog- 
 nizable, nor of any matter to be inferred by argument from the 
 judgment. 
 
 Upon the subject of marriage, the spiritual court has the sole 
 and exclusive cognizance of questioning and deciding, directly, the 
 legality of marriage ; and of enforcing, specifically, the rights and 
 obligations respecting persons depending upon it ; but the temporal 
 courts have the sole cognizance of examining and deciding upon 
 all temporal rights of property ; and, so far as such rights are con- 
 cerned, they have the inherent power of deciding incidentally, either 
 upon the fact, or the legality of marriage, where they lie in the way 
 
112 THE EFFECT OF JUDGMENTS. 
 
 to the decision of the proper objects of their jurisdiction; they do 
 not want or require the aid of the spiritual courts ; nor has the law 
 provided any legal means of sending to them for their opinion ; 
 except where, in the case of marriage, an issue is joined upon the 
 record in certain real writs, upon the legality of a marriage, or its 
 immediate consequence, "general bastardy;" [*426]or, in like man- 
 ner, in some other particular instances, lying peculiarly in the 
 knowledge of their courts, as profession, deprivation, and some 
 others ; in these cases, upon the issue so formed, the mode of trying 
 the question is by reference to the ordinary, and his certificate, 
 when returned, received and entered upon the record in the tem- 
 poral courts, is a perpetual and conclusive evidence against all the 
 world upon that point ; which exceptionable extent, on whatever 
 reasons founded, was the occasion of the statute 9 Henry VI., 
 requiring certain public proclamations to be made for persons 
 interested to come in, and be parties to the proceeding. But, even 
 in these cases, if the ordinary should return no certificate, or an 
 insufficient one ; or, if the issue is accompanied with any special 
 circumstances, as if a second issue triable by a jury is formed upon 
 the same record ; or, if the effect of the same issue is put into 
 another form, a jury is to decide, and not the ordinary to certify, 
 the truth ; and to this purpose Sir William Staunford mentions a 
 jemarkable instance. Bigamy was triable by the bishop's certifi- 
 cate ; but if the prisoner, to avoid the charge, pleads that the second 
 espousals were null and void, because he had a former wife living, 
 this special bigamy was not to be tried by the bishop's certificate. 
 
 So that the trial of marriage, either as to legality, or fact, was 
 not absolutely, and from its nature, an object, alieiii fori. 
 
 There was a time when the spiritual courts wished that their 
 determinations might in all cases be received as authentic in the 
 temporal courts ; and in that solemn assembly of the king, the peers, 
 the bishops and judges, convened for the purpose of settling the 
 demands of the church, by Edward II., one of the claims was 
 expressed in these words : "Si aliqiia; causa, vel negotimn, citjus 
 cognito special ad forum ecclesiasticum, et coram ecclesiastico 
 judice fiierit sententialith tcrminatuni, et transierit in rem judica- 
 tain, nee per appellationemfuerit suspensuin ; et postinodum, coram 
 
THE EFFECT OF JUDGMENTS. 113 
 
 judice seculari, super eadem re inter easdein personas questio move- 
 atur, et provetur per testes vel instruinenta, talis exceptio in foro 
 seculari non admittatur." The answer to which demand was 
 expressed in this manner : "Quando eadem causa, diversis rationi- 
 bus coram jiidicibus [*42/] ecclesiasticis et secidaribus, ventilatur, 
 dicunt quod {non obstante ecclesiastico judicio) curia regis ipsum 
 tractet negotium, nt sibi expedire videtur." For which Lord Coke 
 gives this reason, second Institute, c. 22 : "For the spiritual judges' 
 proceedings are for the correction of the spiritual inner man, and, 
 'pro salute animae,' to enjoin him penance; and the judges of the 
 common law proceed to give damages and recompense for the 
 wrong and injury done;" and then adds, "and so this article was 
 deservedly rejected." 
 
 And the same demand was made, and received the same 
 answer, in the third year of James I. 
 
 It is to be observed, that this demand related only to civil suits 
 between the same parties ; and that the sentence should be received 
 as a plea in bar. But this attempt and miscarriage did not prevent 
 the temporal courts from showing the same respect to their pro- 
 ceedings as they did to those in other courts. And therefore where, 
 in civil causes, they found the question of marriage directly deter- 
 mined by the ecclesiastical courts, they received the sentence, 
 though not as a plea, yet as a proof of the fact ; it being an author- 
 ity accredited in a judicial proceeding by a court of competent 
 jurisdiction ; but still they received it upon the same principles, and 
 subject to the same rules, by which they admit the acts of other 
 courts. 
 
 Hence a sentence of nullity, and a sentence in affirmance of a 
 marriage, have been received as conclusive evidence on a question 
 of legitimacy arising incidentally upon a claim to a real estate. A 
 sentence in a case of jactitation has been received upon a title in 
 ejectment, as evidence against a marriage, and, in like manner in 
 personal actions, immediately founded on a supposed marriage. 
 So a direct sentence in a suit upon a promise of marriage, against 
 the contract, has been admitted as evidence against such contract, 
 in an action brought upon the same promise for damages, it being 
 
114 THE EFFECT OF JUDGMENTS. 
 
 a direct sentence of a competent court, disproving the ground of 
 the action. So a sentence of nulHty is equally evidence in a per- 
 sonal action against a defence founded upon a supposed coverture. 
 1*^28] But in all these cases, the parties to the suits, or at least 
 the parties against whom the evidence was received, were parties 
 to the sentence, and had acquiesced under it ; or claimed under those 
 who were parties and had acquiesced. 
 
 But although the law stands thus with regard to civil suits, 
 proceedings in matters of crime, and especially of felony, fall under 
 a different consideration : first, because the parties are not the 
 same; for the king, in whom the trust of prosecuting public 
 offenses, is vested, and which is executed by his immediate orders, 
 or in his name by some prosecutor, is no party to such proceed- 
 ings in the ecclesiastical court, and cannot be admitted to defend, 
 examine witnesses, in any manner intervene, or appeal: secondly, 
 such doctrines would tend to give the spiritual courts, which are 
 not permitted to exercise any judicial cognizance in matters of 
 crime, an immediate influence in trials for offences, and to draw 
 the decision from the course of the common law, to which it solely 
 and peculiarly belongs. 
 
 The ground of the judicial powers given to ecclesiastical courts 
 is, merely, of a spiritual consideration, "pro correctione morum, et 
 pro salute animae." They are therefore addressed to the conscience 
 of the party. But one great object of temporal jurisdiction is the 
 public peace: and crimes against the public peace are wholly, and 
 in all their parts, of temporal cognizance alone. A felony by com- 
 mon law was also so. A felony by statute becomes so at the 
 moment of its institution. The temporal courts alone can expound 
 the law, and judge of the crime, and its proofs; in doing so, they 
 must see with their own eyes, and try by their own rules, that is, 
 by the common law of the land ; it is the trust and sworn duty of 
 their office. 
 
 When the acts of Henry VIII. first declared what marriages 
 ■should be lawful, and what incestuous, the temporal courts, though 
 they had before no jurisdiction, and the acts did not by express 
 words give them any upon the point, decided, incidentally, upon 
 ■the construction, declared what marriage came within the Levitical 
 
THE EFFECT OF JUDGMENTS. 115 
 
 decree, and prohibited the spiritual courts from giving or proceed- 
 ing upon any other construction. 
 
 Whilst an ancient statute subsisted (2 H. 4, c. 15), by which 
 personal punishment was incurred on holding [*42p] heretical doc- 
 trines, the temporal courts took notice, incidentally, whether the 
 tenet was heretical or not; for "the king's court will examine all 
 things ordained by statute." 
 
 When the statute of Wm. III. made certain blasphemous doc- 
 trines a temporal crime, the temporal courts alone could determine, 
 whether the doctrine complained of was blasphemous so as to con- 
 stitute the crime. 
 
 If a man should be indicted for taking a woman by force and 
 marrying her, or for marrying a child without her father's consent ; 
 or for a rape where the defence is, that "the woman is his wife ;" 
 in all these cases, the temporal courts are bound to try the prisoner 
 by the rules and course of the common law, and incidentally to 
 determine what is heretical, and what is blasphemous ; and whether 
 it was a marriage within the statute — a marriage without consent ; 
 and whether, in the last case, the woman was his wife : but if they 
 should happen to find that sentences, in the respective cases, had 
 been given in the spiritual court upon the heresy, the blasphemous 
 doctrines, the marriage by force, the marriage without consent, 
 and the marriage on the rape, and the court must receive such sen- 
 tences as conclusive evidence, in the first instance, without looking 
 into the case: it would vest the substantial and effective decision, 
 though not the cognizance of the crimes, in the spiritual court, and 
 leave to the jury, and the temporal courts, nothing but a nominal 
 form of proceeding, upon what would amount to a predetermined 
 conviction or acquittal ; which must have the effect of a real pro- 
 hibition, since it would be in vain to prefer an indictment, where 
 an act of a foreign court shall at once seal up the lips of the wit- 
 nesses, the jury, and the court, and put an entire stop to the pro- 
 ceeding. 
 
 And yet it is true, that the spiritual courts have no jurisdic- 
 tion, directly or indirectly, in any matter not altogether spiritual ; 
 and it is equally true, that the temporal courts have the sole and 
 entire cognizance of crimes, which are wholly and altogether tem- 
 poral in their nature. 
 
116 THE EFFECT OF JUDGMENTS. 
 
 And if the rule of evidence must be, as it is often declared to 
 be, reciprocal ; and that in all cases in which sentences favorable 
 to tbe prisoner, are to be admitted as conclusive evidence for him ; 
 the sentences, if unfavourable to the prisoner, are in like manner 
 conclusive evidence [*43o] against him; in what situation must 
 the prisoners be, whose life, or liberty, or property, or fame rests on 
 the judgments of courts, which have no jurisdiction over them in 
 the predicament in which they stand ? and in what situation are the 
 judges of the common law, who must condemn, on the word of an 
 ecclesiastical judge, without exercising any judgment of their own? 
 
 The spiritual court alone can deprive a clergyman. Felony 
 is a good cause of deprivation : yet in Lord Hobart's reports it is 
 held, that they cannot proceed to deprive for felony, before the 
 felon has been tried at law; and although, after conviction, they 
 may act upon that, and make the conviction a ground of depriva- 
 tion, neither side can prove or disprove anything against the ver- 
 dict; because, as that very learned judge declares, "it would be to 
 determine, though not capitally, upon a capital crime, and thereby 
 judge of the nature of the crime, and the validity of the proofs; 
 neither of which belongs to them to do." 
 
 If, therefore, such a sentence, even upon a matter within their 
 jurisdiction, and before a felony committed, should be conclusive 
 evidence on a trial for felony committed after, the opinion of & 
 judge, incompetent to the purpose, resulting (for aught appears) 
 from incompetent proofs (as suppose the suppletory oath), will- 
 direct or rule a jury and a court of competent jursdiction, without 
 confronting any witnesses, or hearing any proofs : for the qitestion 
 supposes, and the truth is, that the temporal court does not and 
 cannot examine, whether the sentence is a just conclusion from 
 the case, either in law or fact ; and the difficulty will not be removed 
 by presuming that every court determines rightly, because it must 
 be presumed too, that the parties did right in bringing the full and 
 true case before the court ; and if they did, still the court will have 
 determined rightly by ecclesiastical laws and rules, and not by those 
 laws and rules by which criminals are to stand or fall in this 
 country. 
 
 If the reason for receiving such sentence is, because it is the 
 
THE EFFECT OF JUDGMENTS. 117 
 
 judgment of a court competent to the inquiry then before them; 
 from the same reason, the determination of two justices of the 
 peace upon the fact or validity of a marriage, in adjudging a place 
 of settlement, may hereafter be offered as evidence, and give the 
 law to the highest court of criminal jurisdiction. [*43i] 
 
 But if a direct sentence upon the identical question, in a matri- 
 monial cause, should be admitted as evidence (though such sen- 
 tence against the marriage has not the force of a final decision, that 
 there was none), yet a cause of jactitation is of a different nature ; 
 it is ranked as a cause of defamation only, and not as a matri- 
 monial cause, unless where the defendant pleads a marriage ; and 
 whether it continues a matrimonial cause throughout, as some say, 
 or ceases to be so on failure of proving a marriage, as others have 
 said, still the sentence has only a negative and qualified effect, viz., 
 ■"that the party has failed in his proof, and that the libellant is free 
 from all matrimonial contact, as far as yet appears ;" leaving it open 
 to new proofs of the same marriage in the same cause, or to any 
 proofs of that or any other marriage in another cause ; and if such 
 sentence is no plea to a new suit there, and does not conclude the 
 court which pronounces, it cannot conclude a court which receives 
 the sentence from going into new proofs to make out that or any 
 other marriage. 
 
 So that, admitting the sentence in its full extent and import, 
 it only proves, that it did not yet appear that they were married, 
 and not that they were not married at all ; and, by the rule laid 
 down by Holt, L. C. J., such sentence can be no proof of anything 
 to be inferred by argument from it ; and therefore it is not to be 
 inferred, that there was no marriage at any time or place, because 
 the court had not then sufficient evidence to prove a marriage at a 
 particular time and place. That sentence, and this judgment may 
 stand well together, and both propositions be equally true : it may 
 be true, that the spiritual court had not then sufficient proof of the 
 marriage specified, and that your lordships may now, unfortunately, 
 find sufficient proof of some marriage. 
 
 But if it was a direct and decisive sentence upon the point, and, 
 as it stands, to be admitted as conclusive evidence upon the court, 
 and not to be impeached from within ; yet, like all other acts of the 
 
118 THE EFFECT OF JUDGMENTS. 
 
 highest judicial authority, it is impeachable from without : although 
 it is not permitted to show that the court was mistaken, it may be 
 shown that they were misled. 
 
 Fraud is an extrinsic, collateral act; which vitiates the most 
 solemn proceeding of courts of justice. Lord Coke says, it avoids 
 all judicial acts, ecclesiastical or temporal. [*43^] 
 
 In civil suits all strangers may falsify, for covin, either fines, 
 or real or feigned recoveries ; and even a recovery by a just title, 
 if collusion was practised to prevent a fair defence; and this, 
 whether the covin is apparent upon the record, as not essoining, 
 or not demanding the view, or by suffering judgment by confes- 
 sion or default: or extrinsic, as not pleading a release, collateral 
 warranty, or other advantageous pleas. 
 
 In criminal proceedings, if an offender is convicted of felony 
 on confession, or is outlawed, not only the time of the felony, but 
 the felony itself, may be traversed by a purchaser, whose convey- 
 ance would be affected as it stands ; and, even after a conviction by 
 verdict, he may traverse the time. 
 
 In the proceedings of the ecclesiastical court the same rule 
 holds. In Dyer there is an instance of a second administration, 
 fraudulently obtained, to defeat an execution of law against the 
 first; and the fact being admitted by demurrer, the court pro- 
 nounced against the fraudulent administration. In another 
 instance, an administration had been fraudulently revoked; and 
 the fact being denied, issue was joined upon it; and the collusion 
 being found by a jury, the court gave judgment against it. 
 
 In the more modern cases, the question seems to have been, 
 whether the parties should be permitted to prove collusion; and 
 not seeming to doubt but that strangers might. So that collusion, 
 being a matter extrinsic of the cause, may be imputed by a stran- 
 ger, and tried by a jury, and determined by the courts of temporal 
 jurisdiction. 
 
 And if a fraud will vitiate the judicial acts of the temporal 
 courts, there seems as much reason to prevent the mischiefs arising 
 from collusion in the ecclesiastical courts, which, from the nature 
 of their proceedings, are at least as much exposed, and which we 
 
THE EFFECT OF JUDGMENTS. 119 
 
 find have been, in fact, as much exposed, to be practised upon for 
 sinister purposes, as the courts in Westminster hall. 
 We are therefore unanimously of opinion : 
 First, that a sentence in the spiritual court against a marriage 
 in a suit of jactitation of marriage is not conclusive evidence, so 
 as to stop the counsel for the crown from proving the marriage in 
 an indictment for polygamy. 
 
 But secondly, admitting ?uch sentence to be conclusive [*^J5] 
 upon such indictment, the counsel for the crown may be admitted 
 to avoid the effect of such sentence, by proving the same to have 
 been obtained by fraud or collusion. 
 
 HIBSHMAN V. DULLEBAN. 
 4 Watts (Pennsylvania) 182. (1835) 
 
 Res Judicata — Incidentally In Question — Complete Jurisdiction. 
 
 Action on the case. Judgment for Plaintiff. Affirmed. 
 
 The Court by Gibson, C. J. The defendants having pleaded 
 a release to the plaintiff's declaration for a legacy and the plaintiff 
 having replied per fraudem, the defendants rejoin that the release 
 was exhibited by them in the orphan's court, and allowed by that 
 court as a decisive bar to exceptions taken by the plaintiff to their 
 administration account; and the question raised by the demurrer 
 is, whether the validity of the release has passed in rem judicatam. 
 The law of the [*ipjr] case, with its distinctions, has been com- 
 pressed into the dimensions of a nutshell, by Chief Justice De Grey, 
 in the Duchess of Kingston's Case, ii St. Tr. 261 ; and though the 
 passage is a trite one, yet as it could not otherwise be so well 
 expressed, it is proper to repeat it in his own words. "From the 
 variety of cases in respect to judgments being given in evidence," 
 said the chief justice, "these two distinctions seem to follow as 
 being generally true : first, that the judgment of a court of concur- 
 rent jurisdiction directly upon the point, is, as a plea, a bar — or as 
 evidence, conclusive, between the same parties on the same matter 
 directly in question in another court; secondly, that the judgment 
 of a court of exclusive jurisdiction directly upon the point, is in 
 like manner conclusive upon the same matter between the same 
 parties coming incidentally in question in another court for a differ- 
 
120 THE EFFECT OF JUDGMENTS. 
 
 ent purpose. But neither the judgment of a concurrent or exclu- 
 sive jurisdiction, is evidence of any matter incidentally cog- 
 nizable, nor of any matter to be inferred by argument from the 
 judgment." This brief but comprehensive summary furnishes a 
 rule for every case that any complication of circumstances can pro- 
 duce. Now, did the question of fraud come before the orphan's 
 court directly or incidentally? Not directly certainly, for that 
 court had jurisdiction of it only incidentally, and not to entertain 
 an action whose immediate object should be to ascertain the fact. 
 In Blackham's Case, i Salk. 290, the defendant proved that the 
 goods, for the conversion of which the action was brought, had 
 belonged to Mrs. Blackham, whose administrator he then was ; to 
 rebut which, the plaintiff proved that he was her husband ; where- 
 upon the defendant contended that the marriage was conclusively 
 negatived by the grant of administration to himself, in preference 
 to the plaintiff, her pretended husband. But Lord Holt said, that 
 though a matter directly determined by the sentence could not be 
 gainsaid, yet that the principle has regard but to a point directly 
 tried, and not to a matter collaterally inferable from it. The same 
 principle was recognized by the king's bench, in Clues v. Bathurst, 
 Ca. Temp. Hard. 12. The case of Re.r v. Vincent, Stra. 481, in 
 which it was held, that the production of a probate by a prisoner 
 indicted for forging a will, is conclusive for him, has been repeat- 
 edly overruled. And the judgment must not only have been direct, 
 but conclusive of the matter adjudged, in the court where it was 
 rendered; for, as is justly remarked by Mr. Starkie, part two, sec- 
 tion sixty-five, if it did not decide the point there, it ought not to 
 decide it elsewhere. On all these grounds the decree of the 
 orphan's court was incompetent to affect the plaintiff in his com- 
 mon law action. The validity of the release was drawn into con- 
 test incidentally; and the point being thus incidentally decided 
 against him, can no more prejudice his title in another court, than 
 can the decision of a surrogate or register prejudice the title of 
 an unsuccessful claimant of administration to the estate of a dece- 
 dent. Again, the point was not actually, or at least necessarily, 
 decided. The plaintiff's exceptions to the [^.fp^] administration 
 account, were also the exceptions of Henry Dulleban's trustees; 
 
THE EFFECT OF JUDGMENTS. 121 
 
 and whether the release were good or bad, was a question whose 
 
 •decision could not supplant a decision of them on the merits. It 
 
 •did not supplant it; and the gratuitous determination of a point 
 
 involving the question of fraud, which had no effect there, ought 
 
 to have no effect here, especially to deprive the plaintiff of a trial 
 
 by jury. 
 
 Judgment affirmed. 
 
 RXIFP V. RUFF. 
 85 Pennsylvania State (6 Norrls) 333. (1877) 
 
 Res Judicata — Garnishment Judgments — Who Bound. 
 
 Debt on a judgment note sued by C. P. Ruff for use of Wm. 
 Hillis against Michael Ruff in Westmoreland common pleas. The 
 note was executed by Michael to C. R., August i, 1868, and 
 assigned by C. P. to Hillis, Feb. 20, 1874. Defendant pleads that 
 before this action was commenced and before the assignment of 
 the note to Hillis, this defendant was summoned as garnishee in 
 an action by Thos. J. Barclay against Michael Ruff, and upon 
 issue formed and tried between said Barclay as plaintiff and this 
 ■defendant as garnishee, he was found not liable on said note, and 
 judgment entered in his favor; which judgment is a, bar to this 
 action. To this special plea defendant demurred. The demurrer 
 was held bad, and judgment given for the defendant. Plaintiff 
 brings error. Reversed. 
 
 A. S. Stewart, H. D. Foster, and McAfee & Atkinson, for 
 plaintiff in error. 
 
 Cowan & Hazlett and H. C. & J. A. Marchand, f6r defend- 
 -ant. 
 
 The Court by Gordon, /. * * * jhe Qi^g question for us to 
 
 resolve is, was C. P. Ruff, by reason of his having been served 
 
 with the writ of attachment, such a party or privy to this issue 
 
 as would make the judgment therein binding on him? If he is so 
 
 bound, the demurrer to the defendant's plea in bar was well ruled 
 
 by the court below ; if not, that ruling was erroneous. But if he 
 
 was such a party, then should he have been included in the issue 
 
 .and the jury should also have been sworn as to him; this, how- 
 
 ■«ver, was not done; and why not? The answer is, because he 
 
 :liad no standing as a party against the garnishee, and was, there- 
 
122 THE EFFECT OF JUDGMENTS. 
 
 fore, properly excluded from a participation in the trial. If he 
 had ought to say against the judgment, from which the attach- 
 ment issued, he might have pleaded and had issue ; it is, that he 
 might have such opportunity, that the act of assembly directs 
 that notice be given the debtor, if he is in the county. With such 
 trial, however, the garnishee has no concern, neither is it a pre- 
 requisite to a trial against him : McCormack v. Hancock, 2 Pa. 
 St. (2 Barr) [*5J<5] 310. It is thus apparent that the two issues 
 are quite distinct, and that whilst in the latter, the garnishee has- 
 no interest, in the former the debtor has none, and so may not 
 intervene either to direct or control it. So completely does his- 
 interest antagonize that of both the contending parties that, even 
 before the Act of 1869, he might have been a witness for either: 
 Cemmill v. Butler, 4 Pa. St. (4 Barr) 232. Again, it is not cor- 
 rect to assume that the attaching creditor stands, in all respects,. 
 in the place of the debtor as to the goods and credits attached;, 
 for, if such were the case, then would a judgment, for or against 
 the garnishee, be conclusive, not only as to the debtor, but also 
 as to his creditors. Such, however, is not the case as to creditors- 
 or trustees in insolvency: Breading v. Siegworth, 29 Pa. St. (5, 
 Casey) 396; Tarns v. Bullitt, 35 Pa. St. (11 Casey) 308. 
 
 What shall we say, then ; that the debtor is concluded by the 
 result of an issue in which he has no interest ; from which by legal 
 rule he is excluded ; in which he cannot be heard, except as a wit- 
 ness, and which does not conclude his creditors? This proposi- 
 tion contains in itself its own answer. If one is to be concluded 
 by a judgment he must have his day in court; some say in, and 
 control over, the trial. But C. P. Ruff had neither control over 
 nor say in the issue between Barclay and the garnishee. Barclay 
 might have permitted the case to go by default; he might have 
 have discontinued, or he and the garnishee might have comprom- 
 ised, and C. P. Ruff could not have intervened to prevent either. 
 He was literally barred out of the case, and for the sufficient rea- 
 son that he was no party to it; hence, by all rule, he is not con- 
 cluded by the judgment resulting from its trial. 
 
 The judgment of the court below is reversed. 
 
THE EFFECT OF JXTOGMENTS. 123: 
 
 KITSONv. FARWELL. 
 132 Illinois 327, 23 N. E. 1024. (1890) 
 
 Res Judicata — Inferred by Argument. 
 
 Motion by Samuel Kitson in the county court of Cook Co. tO' 
 be discharged from imprisonment on execution on a judgment in 
 favor of J. V. Farwell et al. The motion was opposed on the 
 grovind that malice was the gist of the cause for which the judg- 
 ment was rendered. From an order denying the motion Kitson 
 appealed to the circuit court of Cook Co. A jury being there 
 impaneled to try the question, the petitioner offered evidence to 
 prove that the judgment under which he was imprisoned was for 
 a debt contracted bona Me. Thereupon the respondents ofifered 
 in evidence the declaration and files in the original action, and the 
 court refused to hear the petitioner's evidence, on the ground that 
 the declaration and files in the original action showed that the ques- 
 tion now made was then tried and found against the petitioner. 
 The circuit court then entered an order affirming the judgment of 
 the county court. On appeal to the appellate court this judgment 
 was affirmed, and the petitioner again appeals. Reversed. 
 
 Bisbee, Ahrens, & Decker for appellant. 
 
 Tenney, Hawley, & Coffeen for appellees. 
 
 The Court by Shape, C. J. * * * [*5j6] The declaration 
 ofifered in evidence contained three counts, to which the plea of the 
 general issue was filed, and on the trial of the issue thus made a 
 general verdict was rendered finding the defendant guilty and 
 assessing the plaintiffs' damages. 
 
 If it be conceded, which may be done for the purposes of this 
 case, that the first count of the declaration states a good cause of 
 action, as for deceit, it can not be said, under the rulings of this 
 court, that the second and third counts present a good cause of 
 action. * * * [*J5p] 
 
 The former judgment, when introduced in evidence, was con- 
 clusive as to every matter directly and properly at issue in that 
 suit; and if the question of whether the petitioner, by false and 
 fraudulent representations, or by fraud practiced and perpetrated 
 upon the plaintiffs in that suit, obtained the goods, etc., was neces- 
 
124 THE EFFECT OF JUDGMENTS. 
 
 sarily in issue, the doctrine of res judicata might be held to apply. 
 The cases are substantially agreed as to the i-ule, but the difficulty 
 arises in its application, in determining what is to be understood 
 by the "matters in issue" upon the former trial, and what is meant 
 by a judgment directly upon the same matter. * * * It may be 
 stated, generally, that by "matter in issue" is to be understood 
 .that matter upon which the plaintiff proceeds by his action, and 
 which the defendant [*5^.o] denies or controverts by his pleadings. 
 And if the declaration, on its face, shows the special matter set up 
 and relied upon by the plaintiffs, and the same is denied by the 
 defendant's plea, it will show the "matter in issue." The judg- 
 ment necessarily follows the nature of the right claimed in the 
 •declaration, or the injury complained of, and, generally speaking, 
 •can conclude nothing beyond such right or injury. As we have 
 seen, the judgment is not evidence of any matter which is only to 
 be inferred therefrom by argument, and which probably did, but 
 might or might not, constitute the true ground of recovery. If 
 the rule were otherwise, it would operate harshly and unjustly; 
 for to admit a presumption that a fact is established by the judg- 
 ment, and not allow that assumption to be rebutted by proof that 
 it is without foundation, would be to reverse the rule applicable 
 to all presumptions of fact. The authorities are, therefore, that 
 a judgment is conclusive only of what it necessarily and directly 
 •decides. 
 
 It is manifest, that it by no means follows that by the judg- 
 ment in this case the defendant therein was found guilty of having 
 made any false representations, or of having practiced any deceit, 
 or resorted to any artifice, to obtain possession of the goods in the 
 declaration mentioned, for which an action on the case, as for 
 •deceit, would lie. Nor does it militate against this conclusion that 
 the judgment, if rendered under the second and third counts, would 
 te ujKin an immaterial issue. For some purposes the judgment 
 would be referable to the good count in the declaration, as, upon 
 motion in arrest, or upon error; but where the doctrine of res 
 judicata is sought to be applied, it must conclusively appear that 
 the matter was so in issue that it was necessarily determined by 
 the court rendering the judgment interposed as a bar. It may also 
 
THE EFFECT OF JUDGMENTS. 125. 
 
 be that the matters set up in the second and third counts of the- 
 declaration, by means of which it is aheged the petitioner obtained 
 the credit, were in a sense immoral ; but as we have already seen, 
 they formed no proper basis for a recovery in the action [*34i] 
 in which the judgment was obtained. It may also be true, that if 
 the first count had not been in the declaration, the judgment 
 might, on motion, have been arrested ; that it may have been the- 
 duty of the defendant to have demurred, as suggested by counsel, 
 and of the court to have sustained the same, to said second and 
 third counts ; but that consideration can not affect the question 
 being considered. It is apparent that the jury may just as well 
 have found for the plaintiffs in that action, upon evidence tending 
 to support the second and third counts, only, which would form no 
 basis for or right of recovery for fraud or injury committed by 
 the petitioner in that action, as upon the first count. The finding 
 of the jury, we may argue, was predicated upon the allegation of 
 the first count of the declaration ; but it is manifest, under the rule, 
 that will not suffice. If predicated upon the second and third 
 counts of the declaration, alone, it was by no means such as would 
 have authorized a recovery in the suit where malice is the gist of 
 the action. 
 
 But it is said that no motion in arrest was entered by the 
 defendant because of the defect in the declaration. Manifestly, 
 such motion would have been unavailing had it been entered while- 
 the first count remained. 
 
 It follows, that we are of opinion that this judgment, under 
 the pleadings, was not necessarily conclusive of the question as to 
 whether malice was the gist of the action. Independently of the 
 question of whether the record of the superior court of Cook- 
 county was receivable in evidence in the circuit court without proof 
 of its identity and genuineness, we are of opinion that the court 
 erred in excluding the offered evidence, and directing a verdict 
 against the petitioner. 
 
 The judgments of the appellate and circuit courts will be 
 reversed, and the cause remanded to the circuit court for further- 
 proceedings not inconsistent with this opinion. 
 
 Judgment reversed. 
 
126 THE EFFECT OF JUDGMENTS. 
 
 CROMWBLI; V. COUNTY OP SAC. 
 94 United States (4 Otto) 351. (1876) 
 
 Collateral Attack — Res Judicata — Parol Proof — Persons Bound — Actual 
 Defense — Negotiable Public Bonds — Bona fide Holder. 
 
 Action in the United States circuit court for the state of Iowa. 
 Judgment for defendant. Plaintiff brings error. Reversed. 
 
 John N. Rogers for plaintiff. 
 
 Galusha Parsons for defendant. 
 
 The Court by Field, J. This was an action on four bonds of; 
 the county of Sac, in [*55^] the state of Iowa, each for $i,ooo, 
 and four coupons for interest, attached to them, each for $ioo. 
 The bonds were issued in i860, and were made payable to bearer, 
 in the city of New York, in the years 1868, 1869, 1870, and 1871, 
 respectively, with annual interest at the rate of ten per cent a 
 year. 
 
 To defeat this action, the defendant relied upon the estoppel 
 of a judgment rendered in favor of the county in a prior action 
 brought by one Samuel C. Smith upon certain earlier maturing 
 coupons on the same bonds, accompanied with proof that the plaint- 
 iff Cromwell was at the time the owner of the coupons in that 
 action, and that the action was prosecuted for his sole use and 
 benefit. 
 
 The questions presented for our determination relate to the 
 ■operation of this judgment as an estoppel against the prosecution 
 •of the present action, and the admissibility of the evidence to con- 
 nect the present plaintiff with the former action as a real party in 
 interest. 
 
 In considering the operation of this judgment, it should be 
 "borne in mind, as stated by counsel, that there is a difference 
 "between the effect of a judgment as a bar or estoppel against the 
 prosecution of a second action upon the same claim or demand, 
 and its effect as an estoppel in another action between the same 
 parties upon a different claim or cause of action. In the former 
 case, the judgment, if rendered upon the merits, constitutes an 
 absolute bar to a subsequent action. It is a finality as to the claim 
 •or demand in controversy, concluditig parties and those in privity 
 
THE EFFECT OF JUDGMENTS. 127 
 
 with them, not only as to every matter which was offered and 
 received to sustain or defeat the claim or demand, but as to any 
 other admissible matter which might have been offered for that 
 purpose. Thus, for example, a judgment rendered upon a prom- 
 issory note is conclusive as to the validity of the instrument and the 
 amount due upon it, although it be subsequently alleged that per- 
 fect defences actually existed, of which no proof was offered, such 
 as forgery, want of consideration, or payment. If such defences 
 were not presented in the action, and established by competent evi- 
 dence, the subsequent allegation of their existence is of no legal 
 consequence. The judgment is as conclusive, so far as future pro- 
 ceedings at law [*J5j] are concerned, as though the defences 
 never existed. The language, therefore, which is so often used, 
 that a judgment estops not only as to every ground of recovery or 
 defence actually presented in the action, but also as to every ground 
 which might have been presented, is strictly accurate, when applied 
 to the demand or claim in controversy. Such demand or claim, 
 having passed into judgment, cannot again be brought into liti- 
 gation between the parties in proceedings at law upon any ground 
 whatever. 
 
 But where the second action between the same parties is upon 
 a different claim or demand, the judgment in the prior action 
 operates as an estoppel only as to those matters in issue or points 
 controverted, upon the determination of which the finding or ver- 
 dict was rendered. In all cases, therefore, where it is sought to 
 apply the estoppel of a judgment rendered upon one cause of action 
 to matters arising in a suit upon a different cause of action, the 
 inquiry must always be as to the point or question actually litigated 
 and determined in the original action, not what might have been 
 thus litigated and determined. Only upon such matters is the 
 judgment conclusive in another action. 
 
 The difference in the operation of a judgment in the two 
 classes of cases mentioned is seen through all the leading adjudi- 
 cations upon the doctrine of estoppel. Thus, in the case of Outram 
 V. Morewood, 3 East, 346, the defendants were held estopped from 
 averring title to a mine, in an action of trespass for digging out 
 coal from it, because, in a previous action for similar trespass, they 
 
128 THE EFFECT OF JUDGMENTS. 
 
 had set up the same title, and it had been determined against them. 
 In commenting upon a decision cited in that case, Lord Ellenbor- 
 ough, in his elaborate opinion, said: "It is not the recovery, but 
 the matter alleged by the party, and upon which the recovery pro- 
 ceeds, which creates the estoppel. The recovery of itself in an 
 action of trespass is only a bar to the future recovery of damages 
 for the same injury ; but the estoppel precludes parties and privies 
 from contending to the contrary of that point or matter of fact, 
 which, having been once distinctly put in issue by them, or by those 
 to whom they are privy in estate or law, has been, on such issue 
 joined, solemnly found against them." And in the [*55^] case 
 of Gardner v. Buckhee, 3 Cowen (N. Y.), 120, it was held by the 
 supreme court of New York that a verdict and judgment in the 
 marine court of the city of New York, upon one of two notes 
 given upon a sale of a vessel, that the sale was fraudulent, the 
 vessel being at the time unseaworthy, were conclusive upon the 
 question of the character of the sale in an action upon the other 
 note between the same parties in the court of common pleas. The 
 rule laid down in the celebrated opinion in the case of the Duchess 
 of Kingston was cited, and followed: "The judgment of a court 
 of concurrent jurisdiction directly upon the point is as a plea a bar, 
 or as evidence conclusive between the same parties upon the same 
 matter directly in question in another court." 
 
 These cases, usually cited in support of the doctrine that the 
 determination of a question directly involved in one action is con- 
 clusive as to that question in a second suit between the same parties 
 upon a different cause of action, negative the proposition that the 
 estoppel can extend beyond the point actually litigated and deter- 
 mined. The argument in these cases, that a particular point was 
 necessarily involved in the finding in the original action, proceeded 
 upon the theory that, if not thus involved, the judgment would be 
 inoperative as an estoppel. In the case of Miles v. Caldwell, 69 
 U. S. (2 Wallace) 35, a judgment in ejectment in Missouri, where 
 actions of that kind stand, with respect to the operation of a recov- 
 ery therein, as a bar or estoppel, in the same position as . other 
 actions, was held by this court conclusive, in a subsequent suit in 
 equity between the parties respecting the title, upon the question 
 
THE EFFECT OF JUDGMENTS. 129 
 
 «ol the satisfaction of the mortgage under which the plaintiff 
 •claimed title to the premises in the ejectment, and the question as 
 to the fraudulent character of the mortgage under which the 
 • defendant claimed, because these questions had been submitted to 
 the jury in that action, and had been passed upon by them. The 
 court held, after full consideration, that in cases of tort, equally as 
 in those arising upon contract, where the form of the issue was 
 so vague as not to show the questions of fact submitted to the jury, 
 it was competent to prove by parol testimony what question or 
 •questions of fact were thus submitted and necessarily passed upon 
 by them ; and [*J55] by inevitable implication also held that, in 
 the absence of proof in such cases, the verdict and judgment were 
 inconclusive, except as to the particular trespass alleged, whatever 
 possible questions might have been raised and determined. 
 
 But it is not necessary to take this doctrine as a matter of 
 inference from these cases. The precise point has been adjudged 
 :in numerous instances. It was so adjudged by this court in Wash- 
 ington A. & G. Co. v. Sickles, 65 U. S. (24 How.) 33. In that 
 ■case, an action was brought upon a special parol contract for the 
 engines, by which the plaintiffs, who had a patent for the 
 •cut-off, were to attach one of their machines to the engine of 
 the defendants' boat, and were to receive for its use three- 
 fourths of the saving of fuel thus produced, the payments to be 
 anade from time to time when demanded. To ascertain the saving 
 of fuel an experiment was to be made in a specified manner, 
 and the result taken as the rate of saving during the continuance 
 ■of the contract. The plaintiffs in their declaration averred that 
 the experiment had been made, at the rate of saving ascertained, 
 and that the cut-off had been used on the boat until the com- 
 mencement of the suit. In a prior action against the same 
 •defendant for an instalment due, where the declaration set forth 
 the same contract in two counts, the first of which was similar to 
 the counts in the second action, and also the common counts, the 
 plaintiffs had obtained verdict and judgment; and it was insisted 
 that the defendant was estopped by the verdict and judgment 
 produced from proving that there was no such contract as that 
 
130 THE EFFECT OF JUDGMENTS. 
 
 declared upon or that no saving of fuel had been obtained, or that 
 the experiment was not made pursuant to the contract, or that the 
 verdict was rendered upon all the issues, and not upon the first 
 count specially. The circuit court assented to these views, and 
 excluded the testimony offered by the defendants to prove those 
 facts. But this court reversed the decision, and held that the 
 defendants were not thus estopped. 
 
 "The record produced by the plaintiffs," said the court, 
 "showed that the first suit was brought apparently upon the same 
 contract as the second, and that the existence and validity [*J5(5] 
 of that contract might have been litigated. But the verdict might 
 have been rendered upon the entire declaration, and without special 
 reference to the first count. It was competent to the defendants 
 to show the state of facts that existed at the trial, with a view to 
 ascertain what was the matter decided upon by the verdict of the 
 jury. It may have been that there was no contest in reference to 
 the fairness of the experiment, or to its sufficiency to ascertain the 
 premium to be paid for the use of the machine at the first trial, or 
 it may have been that the plaintiffs abandoned their special counts 
 and recovered their verdict upon the general counts. The judg- 
 rnent rendered in that suit, while it remains in force, and for the 
 purpose of maintaining its validity, is conclusive of all the facts 
 properly pleaded by the plaintiffs ; but when it is presented as tes- 
 ti?nony in another suit, the inquiry is competent whether the same 
 issue has been tried and settled by it." 
 
 It is not believed that there are any cases going to the extent 
 that because in the prior action a different question from that act- 
 ually determined might have arisen and been litigated, therefore 
 such possible question is to be considered as excluded from con- 
 sideration in a second action between the same parties on a differ- 
 ent demand, although loose remarks looking in that direction may 
 be found in some opinions. On principle, a point not in litigation 
 in one action cannot be received as conclusively settled in any 
 subsequent action upon a different cause, because it might have 
 been determined in the first action. 
 
 Various considerations, other than the actual merits, may gov- 
 ern a party in bringing forward grounds of recovery or defence 
 
THE EFFECT OF JUDGMENTS. 131 
 
 in one action, which may not exist in another action upon a dif- 
 ferent demand, such as the smallness of the amount or the value 
 of the property in controversy, the difficulty of obtaining the nec- 
 essary evidence, the expense of the litigation, and his own situation 
 at the time. A party acting upon considerations like these ought 
 not to be precluded from contesting in a subsequent action other 
 demands arising out of the same transaction. A judgment by 
 default only admits for the purpose of the action the legality of the 
 demand or claim in suit : it does not make the allegations of the 
 declaration or complaint evidence in an action upon a different 
 claim. The declaration [*J57] may contain different statements of 
 the cause of action in different counts. It could hardly be pre- 
 tended that a judgment by default in such a case would make the 
 several statements evidence in any other proceeding. Boilean v. 
 Rutlin, 2 Exch. 665, 681 ; Hughes v. Alexander, 5 Duier, N. Y. 
 Sup'r, 488, 493. 
 
 The case of Hoivleti v. Tarte, 10 C. B. n. s. 813, 100 E. C. L. 
 813, supports this view. That was an action for rent, under a 
 building agreement. The defendant pleaded a subsequent agree- 
 ment, changing the tenancy into one from year to year, and its 
 determination by notice to quit before the time for which the rent 
 sued for was alleged to have accrued. The plaintiff replied that 
 he had recovered a judgment in a former action against the defend- 
 ant for rent under the same agreement, which had accrued after the 
 alleged determination of the tenancy, in which action the defend- 
 ant did not set up the defence pleaded in the second action. On 
 demurrer, the replication, after full argument, was held bad. In 
 deciding the case, Mr. Justice Willes said : "It is quite right that 
 a defendant should be estopped from setting up in the same action 
 a defence which he might have pleaded, but has chosen to let the 
 proper time go by. But nobody ever heard of a defendant being 
 precluded from setting up a defence in a second action because he 
 did not avail himself of the opportunity of setting it up in the first 
 action. * * * I think we should do wrong to favor the introduc- 
 tion of this new device into the law." Mr. Justice Byles said : "It 
 is plain that there is no authority for saying that the defendant is 
 precluded from setting up this defence." Mr. Justice Keating 
 
132 THE EFFECT OF JUDGMENTS. 
 
 said : "This is an attempt on the part of the plaintiff to extend 
 the doctrine of estoppel far beyond what any of the authorities 
 warrant." 
 
 The language of the vice-chancellor, in the case of Henderson 
 V. Henderson, 3 Hare, 100, 115, is sometimes cited as expressing 
 a different opinion; but, upon examining the facts of that case, it 
 will appear that the language used in no respect conflicts with the 
 doctrine we have stated. In that case, a bill had been filed in the 
 supreme court of Newfoundland, by the next of kin of an intes- 
 tate, against A. and others, for an account of an estate and of cer- 
 tain partnership transactions. A decree was rendered against A., 
 upon which the next of kin brought actions in England. A. then 
 filed a bill there against the next ['"358] of kin and personal repre- 
 sentative of the intestate, stating that the intestate's estate was 
 indebted to him, and alleging various errors and irregularities in 
 the proceedings in the supreme court of the island, and praying 
 that the estate of the intestate might be administered, the partner- 
 ship accounts taken, and the amount of the debt due to him ascer- 
 tained and paid. A demurrer to the bill was allowed for want of 
 equity, on the ground that the whole of the matters were in ques- 
 tion between the parties, and might properly have been the subject 
 of adjudication in the suit before that court. It was with refer- 
 ence to the necessity of having the subject of particular litigation, 
 as a whole, at once before the court, and not by piecemeal, that the 
 vice-chancellor said : 
 
 "In trying this question, I believe I state the rule of court cor- 
 rectly, that when a given matter becomes the subject of litigation 
 in and of adjudication by a court of competent jurisdiction, the 
 •court requires the parties to bring forward their whole case, and 
 will not, except under special circumstances, permit the same par- 
 ties to open the same subject of litigation in respect of matter which 
 might have been brought forward as part of the subject in contro- 
 versy, but which was not brought forward, only because they have, 
 from negligence, inadvertence, or even accident, omitted part of 
 their case. The plea of res judicata applies, except in special cases, 
 not only to the points upon which the court was required by the 
 ■parties to form an opinion, and pronounce a judgment, but to every 
 
THE EFFECT OF JUDGMENTS. 133 
 
 point which properly belonged to the subject of litigation, and 
 which the parties, exercising reasonable diligence, might have 
 brought forward at the time." 
 
 There is nothing in this language, applied to the facts of the 
 case, which gives support to the doctrine that, whenever in one 
 action a party might have brought forward a particular ground of 
 recovery or defence, and neglected to do so, he is, in a subsequent 
 suit between the same parties upon a different cause of action, pre- 
 cluded from availing himself of such ground. 
 
 If, now, we consider the main question presented for our deter- 
 mination by the light of the views thus expressed and the authori- 
 ties cited, its solution will not be difficult. It appears from the 
 findings in the original action of Smith, that the county of Sac, 
 by a vote of its people, authorized the issue of [*559] bonds to the 
 amount of $10,000, for the erection of a court-house; that bonds 
 to that amount were issued by the county judge, and delivered to 
 one Meserey, with whom he had made a contract for the erection of 
 the court-house; that immediately upon receipt of the bonds the 
 contractor gave one of them as a gratuity to the county judge ; and 
 that the court-house was never constructed by the contractor, or 
 by any other person pursuant to the contract. It also appears that 
 the plaintiff had become, before their maturity, the holder of 
 twenty-five coupons, which had been attached to the bonds ; but 
 there was no finding that he had ever given any value for them. 
 The court below held, upon these findings, that the bonds were void 
 as against the county, and gave judgment accordingly. The case 
 coming here on writ of error, this court held that the facts dis- 
 closed by the findings were sufficient evidence of fraud and illegal- 
 ity in the inception of the bonds to call upon the holder to show 
 that he had given value for the coupons ; and, not having done so, 
 the judgment was affirmed. Reading the record of the lower court 
 by the opinion and judgment of this court, it must be considered 
 that the matters adjudged in that case were these : that the bonds 
 were void as against the county in the hands of parties who did not 
 acquire them before maturity and give value for them, and that the 
 plaintiff, not having proved that he gave such value, was not en- 
 titled to recover upon the coupons. Whatever illegality or fraud 
 
134 THE EFFECT OF JUDGMENTS. 
 
 there was in the issue and dehvery to the contractor of the bonds 
 affected equally the couponsfor interest attached to them. The find- 
 ing and judgment upon the invalidity of the bonds, as against the 
 county, must be held to estop the plaintiff here from averring to 
 the contrary. But as the bonds were negotiable instruments, and 
 their issue was authorized b}' vote of the county, and they recite 
 on their face a compliance with the law providing for their issue, 
 they would be held as valid obligations against the county in the 
 hands of a bona fide holder taking them for value before maturity, 
 according to repeated decisions of this court upon the character of 
 such obligations. If, therefore, the plaintiff received the bond and 
 coupons in suit before maturity for value, as he offered to prove, 
 he should have been permitted to show that fact. There was 
 [*j(5o] nothing adjudged in the former action in the finding that 
 the plaintiff had not made such proof in that case which can pre- 
 clude the present plaintiff from making such proof here. The 
 fact that a party may not have shown that he gave value for one 
 bond or coupon is not even presumptive, much less conclusive, evi- 
 dence that he may not have given value for another and different 
 bond or coupon. The exclusion of the evidence offered by the 
 plaintiff was erroneous, and for the ruling of the court in that 
 respect the judgment must be reversed and a new trial had. 
 
 Upon the second question presented, we think the court below 
 ruled correctly. Evidence showing that the action of Smith was 
 brought for the sole use and benefit of the present plaintiff was, in 
 our judgment, admissible. The finding that Smith was the holder 
 and owner of the coupons in suit went only to this extent, that he 
 held the legal title to them, which was sufficient for the purpose of 
 the action, and was not inconsistent with an equitable and bene- 
 ficial interest in another. 
 
 Judgment reversed, and cause remanded for a new trial. 
 
 Clifford, J., dissenting. * * * [*i<5i] * * * Suit is now 
 brought upon the bonds to which those coupons were attached, 
 and the sole question of any importance is whether the judgment 
 in the former case is a bar to the present suit. 
 
 Nothing can be more certain in legal decision than the propo- 
 
THE EFFECT OF JUDGMENTS. 135 
 
 sition that the title to the bonds and coupons are the same, as the 
 coupons were annexed to the bonds when the bonds were exe- 
 cuted and delivered to the original holder, in pursuance of the con- 
 tract for building the court-house; and it is equally certain, that 
 if it could be proved in defence that the consideration was illegal, 
 or that the instruments were fraudulent in their inception, or that 
 they had been lost or stolen before they were negotiated to the 
 holder, the defence would apply to the bonds as well as the cou- 
 pons. * * * [*J/0] * * * He alleged in the declaration that he 
 paid value, and consequently he might have given evidence to prove 
 it, which shows that the question was directly involved in the issue 
 between the parties. 
 
 Doubtless the plaintiff neglected to give evidence in that behalf, 
 for the reason that he and his counsel were of the opinion that the 
 evidence introduced by the defendants was not sufficient to repel 
 the prima facie presumption, arising from his possession of the 
 instruments, that he paid value for the transfer, and I am still of 
 that opinion; but the remedy of the plaintiff, if surprised, was to 
 except to the ruling, or to submit a motion for new trial. 
 
 Suggestions of that sort are now too late, nor are they suffi- 
 cient to modify the eft"ect of the judgment. When once finally ren- 
 dered, the judgment must be considered conclusive, else litigation 
 1*3/ t] will be endless. Litigants sometimes prefer not to bring 
 forward their whole case or defence, in order to enjoy the oppor- 
 tunity to bring up a reserve in case of defeat in the first contest; 
 but a rule which would sanction that practice would be against pub- 
 lic policy, as it would enable a party to protract the litigation as long 
 as he could find means or credit to compel the attendance of wit- 
 nesses and to secure the services of counsel. 
 
VI. THE SATISFACTION OF JUDGMENTS. 
 
 A, PROCESSES TO OBTAIN, 
 
 a. NATURE OF THE PROCESSES. 
 
 SIR WILLIAM HARBERT'S CASE. 
 3 Reports (Coke) iib. 
 
 Remedial Processes at Common Law — To Sovereign and Citizen — Stat-- 
 ute Westm. 2d, c. 11, 18, & 45 — Statute de IVlercatoribus — 
 Statute 25 Edw. 3 c. 17 — Origin cind Extent of Impris- 
 onment for Debt — Liability of Land to Execution. 
 
 This decision was rendered in the English court of exchequer at 
 Mich, term, 27 & 28 Eliz. (A. D. 1585). 
 
 This was a scire facias issued out of the court of exchequer in 
 the i8th year of Eliz., on a recognizance acknowledged to the king 
 in the court of augmentation in the fourth year of Edward VI., by 
 Matthew Harbert. Said Harbert having died, the scire facias was 
 directed against the executors of his will and the heirs of his land, 
 and the sheriff made return that said Harbert had no executors 
 within his bailiwick and that he had summoned Sir William Har- 
 bert, the son and heir of said Matthew, etc. On the return day said 
 Sir William made default, upon which the barons gave judgment 
 in favor of the Queen against him generally for said 3000/. And 
 thereupon said Sir William brought the case here on writ of error, 
 and assigned three errors : i on the scire facias; 2 on the return ; 
 and, 3 on the judgment.^ And this term the errors were moved by 
 
 'The Error Alleged of the scire facias was that it was against the 
 heir of the land and not against the heir simply. The error alleged of 
 the return was that it was not responsive to the writ in that It specified 
 no land. The error alleged of the judgment was that it should have 
 been special, because defendant's own land, not acquired by descent 
 from his father, would be liable on this general judgment, whereas he 
 was liable only as terra tenant. These are the questions which the 
 
138 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 Plowden, being of counsel with Sir William Harbert, before Sir 
 Thomas Bromley, Lord Chancellor of England, and the Baron of 
 Burleigh, Lord Treasurer of England, and the two chief justices, 
 Wray and 'Anderson, in the exchequer chamber. And in this 
 case divers points were resolved. 
 
 First, that at the common law, where a common person sues 
 a recognizance or a judgment for debt or damages, he shall not 
 have the body of the defendant, nor his lands (unless in special 
 case) in execution. But at the common law he shall have execu- 
 tion in such case only of his goods and chattels, and of corn, and 
 the like present profit which shall grow upon the land, to which 
 purpose the common law gave him two several writs: [*i^] i. A 
 levari facias, by which writ the sheriff was commanded, quod de 
 terris & catallis ipsius A. &c. levari facias, &c. and another writ 
 called fieri facias, which was only de bonis & catallis, both which 
 writs ought to be sued within the year after the judgment, or the 
 recognizance acknowledged; and if he had not the one or the 
 other within the year, the plaintiff or the conusee was put to his 
 action of debt. And now by the statute of Westminster, 2 cap. 
 45, a scire facias is given ; and by the statute of Westminster, 2 
 cap. 18, cum debitum fuerit recuperatum, &c., the elegit is given 
 of the moiety of the land, which was the first act which subjected 
 land to the execution of a judgment, or of a recognizance, which 
 is in the nature of a judgment, and therewith agreeth Fitzherbert's 
 Natura Brevium 265, g. And by the statute of 13 Edw. i. de 
 mercatoribus, 27 Edw. 3 cap. 9, and 23 Hen. 8 cap. 6, it is pro- 
 vided, that in case of a statute merchant, or statute staple all the 
 lands which the conusor had at the day of the conusance shall be 
 extended in whose hands soever they after come, either by feoff- 
 ment or other manner. But in debt against the heir upon an obli- 
 gation made by his ancestor, the plaintiff by the common law 
 should have all the land which descended to him in execution 
 against him, and yet he should not have execution of any part of 
 
 reporter says were not resolved by the court. The case is given here 
 because it is generally cited as a leading case on the matters here re- 
 printed, and because the law is stated with Coke's usual accuracy and 
 discrimination. 
 
NATURE OF THE PROCESSES. 139 
 
 "the land against the father himself ; but the reason thereof was, be- 
 cause the common law gave an action of debt against the heir ; and 
 in such case, if he should not have execution of the land against 
 the heir, he could have no fruit of his action; for the goods and 
 -chattels of the debtor do belong to his executors or administrators, 
 and so for necessity in such case, only land was liable to execu- 
 tion of the debt of a common person at the common law. Also 
 the body of the defendant was not liable to execution for debt at 
 the common law, vide 13 Hen. 4, i. But the common law, which 
 is the preserver of the common peace of the land, did abhor all 
 force as a capital enemy to it ; and therefore, against those who 
 committed any force, the common law did subject their bodies to 
 imprisonment, which is the highest execution, by which he loses 
 his liberty till he agree with the party, and pay a fine to the king ; 
 -and therefore it is a rule in law, that in all actions qiiare vi & 
 annis, capias ad respondendum lies, and where capias lies in 
 ■process, there, after judgment, capias ad satisfaciendum lies, and 
 there the king shall have capias pro fine. With that agreeth 8 Hen. 
 6, 9 ; 35 Hen. 6, 6 ; 22 Edw. 4, 22 ; 40 Edw. 3, 25 ; 49 Edw. 
 3, 2, and many other books. Then by the statutes of Marle- 
 berge, cap. 23, and Westminster 2, cap. 11, capias was given in 
 accompt, for at the common law process in accompt was distress 
 infinite; and afterwards by the statute of 25 Edw. 3, cap. 17, the 
 like process was given in debt as in accompt, for before that stat- 
 ute the body of the defendant was not liable to execution for 
 debt, for the reason and cause aforesaid ; but it was resolved, that 
 -at the common law, the body, the land, and the goods of the ac- 
 comptant, or the king's debtor, were liable to the king's execution, 
 for thesaurus regis est pads vinculum et bellorum nervi. And 
 therefore the law gave the king full remedy for it ; and therewith 
 -agrees 5 Eliz. Dier 224, and Plowden's Comm. 321, Sir William 
 Cavendish's case, who was treasurer of the chamber, 24 Edw. 3 ; 
 Walter de Chirton's case, and infinite precedents in the exchequer, 
 to prove, that for the king's debt, the body and the land of the 
 debtor shall be liable by the common law before the statute of 33 
 Hen. 8, cap. 39. * * * [*/5] * * * 
 
 But these [omitted] points were not resolved by the court, but 
 
140 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 afterwards, on a petition made to the queen, Sir William com- 
 pounded with her. Plowden and Coke were of counsel with Sir 
 William Marbert. * * * 
 
 Statute of Westminster Second [13 Edward I, A. D. 1285], Chapter 
 18. — Cum debitum fuerit recuperatum, vel in curia regis recognitum,. 
 vel damna adjudicata sit de cffitero in electione illius qui sequitur pro 
 hujusmodi debito, aut damnis, sequi breve quod vicecom' fieri faciat de 
 terris et catallis debitoris, quod vicecom' liberet ei omnia catalla debit- 
 oris(exceptisbobusetafriscaruc£e),et medietatem terrae suae quousque 
 debitum fuerit levatum per rationabile precium et extentum. Bt sL 
 ejiciatur de illo tenemento, habeat recuperare per breve uovk disseis- 
 inse, et postea per breve de redisseisina, si necesse fuerit. 
 
 Translation. — When debt is recovered, or acknowledged in tlie 
 king's court, or damages awarded, it shall be from henceforth in the 
 election of him that sueth for such debt or damages, to have a writ of 
 fieri facias unto the sheriff for to levy the debt of the lands and goods; 
 or that the sheriff shall deliver to him all the chattels of the debtor 
 (saving only his oxen and beasts of his plough) and the one-half of 
 his land, until the debt be levied upon a reasonable price or extent.. 
 And if he be put out of that tenement, he shall recover by a writ of 
 novel disseisin, and after by a writ of redisseisin, if need be. 
 
 ALLEN V. HALL. 
 46 Massachusetts (s Mete.) 263. (1842) 
 
 Grounds for Charging Garnishee — IVleasure of Liability — Defenses — 
 
 Comparative Lien on Credits and Property Possessed — 
 
 Proceedings Necessary to Perfect Attachment 
 
 Lien — Effect of Departure. 
 
 F. Hilliard, for the plaintiff. 
 
 Griggs, for the defendant. 
 
 The Court by Shaw, C. J. In scire facias against a trustee^ 
 The question is, whether the defendant can set off demands, which 
 he had at the time he was summoned in the suit, against Joseph: 
 Tufts, the principal defendant. 
 
 The trustee process, provided for by statute, manifestly con- 
 templates two distinct classes of cases, in which a creditor may 
 avail himself of its provisions to secure his debt, by attaching prop- 
 erty in the hands of a third person ; the one, when the trustee has- 
 in his custody, or under his control, goods or chattels, liable by law 
 to be attached on mesne process, by the ordinary writ of attach- 
 ment ; the other, where the trustee is a debtor to the principal de- 
 
NATURE OF THE PROCESSES. 141 
 
 fendant, and owes him money, either due and payable presently, 
 ■or existing as a debt at the time of the attachment, though payable 
 at a future day. Maine F. & M. Ins. Co. v. Weeks, 7 Mass. 438 ; 
 Swett V. Brown, 5 Pick. 178. 
 
 This distinction is founded on the statute rendering goods and 
 [♦265] credits, respectively, liable to attachment. In the former 
 ■case, the attachment binds the goods specifically, creates a lien 
 upon them, of the same nature and to the same extent, as an ordi- 
 nary attachment on mesne process, although the goods are to stand 
 charged, in the hands of the trustee, so that the custody remains 
 with the trustee, instead of being taken by the attaching officer, 
 unless a subsequent attachment is made by another creditor, which 
 may be done, subject to the first attachment. Parker v. Kinsman, 
 ■8 Mass. 486; Burlingame, v. Bell, 16 Mass. 318. But in both 
 cases, the goods thus charged are deemed to be in the custody of 
 the law, and they are made applicable to the purpose for which 
 they are attached and held, in the same manner ; that is, by being 
 advertised and sold by the officer on execution, and the proceeds 
 applied to its satisfaction. The only difference is, that in the case 
 of the trustee attachment, the goods, having remained in the cus- 
 tody of the trustee, must be by him exposed and delivered over to 
 the officer holding the execution ; whereas, in the case of an attach- 
 ment by the ordinary process, the goods are in the custody of the 
 officer, ready to be sold on the execution, when it comes into his 
 hands for satisfaction. 
 
 But under the other clause of the statute, rendering credits 
 liable to be attached, the case is wholly different. It affects an- 
 other species of property, and accomplishes its purposes in an en- 
 tirely different mode. The great question then, the only question 
 is, whether he owes the principal debtor any thing; and if it ap- 
 pears that he does, he is held liable to pay it to his creditor's credi- 
 tor, instead of paying it to the creditor himself. It is unnecessary 
 here to consider the various questions which may arise, as to the 
 nature of such debts, whether absolute or contingent, and the na- 
 ture of such contingency ; whether, if uncertain at the time, it can 
 "be made certain at a future time, by sales, collections of money or 
 •other proceedings, showing that in point of fact the trustee was a 
 
142 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 debtor to the principal at the time of the attachment. In such 
 cases, although the facts are subsequently disclosed, and the ac- 
 counts subsequently adjusted, in order to \*266'\ charge the trus- 
 tee, the result must show that the trustee was a debtor to the prin- 
 cipal, at the time of the attachment. 
 
 This distinction between the two classes of cases will go far 
 to show in what cases the trustee may or may not set off such 
 claims as he may have against the principal debtor, and to reconr 
 cile what may, without discrimination, be deemed to be conflicting 
 authorities. 
 
 On the provision, in which the trustee is charged as a debtor, 
 it is very obvious that he is a mere third party, called in to pay his 
 debt, in a manner different from that in which he was bound to 
 pay it, and in which his own rights are not drawn into controversy, 
 he ought not to be placed in a worse situation than he would be if 
 he were called to make the settlement with his creditor. The bal- 
 ance only, after all just allowances, is the sum for which he ought 
 to be held. He shall therefore have the benefit of a set-off, legal 
 or equitable, in his own right, or in the right of those with whom 
 he is in privy, and in whose favor the debt claimed to be due from 
 the trustee could, in his hands, be made available, by way of set-off 
 in any of the modes provided by law. Hathaway v. Russell, i6 
 Mass. 473; P/cgui?^ v. 6"«'aM, 4 Mason, 443, (Fed. Cas. No. 11 133). 
 
 But where the trustee has goods in his custody, the property 
 of the principal defendant, and in their nature liable to be attached 
 by the process of law, the question, whether the trustee has any 
 right to set off claims of his own, must depend upon the fact 
 whether he has any lien, legal or equitable, upon such goods, or 
 any right, as against the owner, as whose property they are at- 
 tached, by contract, by custom, or otherwise, to hold the goods, or 
 to retain the possession of them, in security of some debt or claim 
 of his own. If the party, who is summoned as trustee, has a mere 
 naked possession of the goods, without any special property or 
 lien ; if the principal debtor is the owner, and has a present right 
 of possession, so that he might lawfully take them out of the cus- 
 tody, or authorize another to take them out of the custody, of the 
 present holder ; they would be liable to be attached as the property 
 
NATURE OF THE PROCESSES. 143 
 
 of the general owner, by an officer, under the common process of 
 attachment, if he could have access [*26/] to them, and no right of 
 the trustee would be violated. But if the officer cannot have ac- 
 cess to the goods, so as to take them into custody ; if ftiey are se- 
 creted by the trustee, or if the trustee sets up pretended claims and 
 rights of possession, so that the creditor and officer cannot safely 
 take them out of the custody of the trustee, and require the answer 
 and disclosure of the trustee, as to the grounds of his claim to the 
 property or possession ; then he may be summoned as trustee ; and 
 if it shall subsequently appear, on his disclosures, that he had 
 only such naked possession, without any lien or right of possession, 
 then the goods stand charged in his hands, till judgment and exe- 
 cution ; and he has no greater right to charge these goods with a 
 debt of his own, by way of set-off, than he would have had, if the 
 goods had been taken into custody by the officer, at the time of the 
 attachment. This, we think, is the result of the laws on this sub- 
 ject. Allen V. Meggiiire, 15 Mass. 490; Stvett v. Brown, 5 Pick. 
 178; Brewer v. Pitkin, 11 Pick. 298. 
 
 We are next to consider how these principles apply to the 
 facts of the present case. It appears that the respondent. Hall, 
 sued out a writ against his debtor, Joseph Tufts, and caused his 
 goods to be attached by an officer. Before judgment, without the 
 consent of the debtor, and without the appraisement and certifi- 
 cate required by law to warrant a sale of goods attached on mesne 
 process, the defendant caused the goods to be sold, and himself 
 became the purchaser of the greater part of them, and, for aught 
 that appears in his answers, had them in his possession at the time 
 of the service of this trustee process. This sale, it is manifest, 
 was wholly void, being not conformable to the Rev. Sts. c. 90, and 
 not authorized by law. Hozve v. Starkweather, 17 Mass. 240; 
 Russell V. Dudley, 3 Met. 147. 
 
 The respondent obtained the bare custody of the goods, with- 
 out lawful possession or right of possession. If the respondent 
 could have the goods in security of his original debt against Tufts, 
 or set ofif that debt, under this process, he would in efifect get pos- 
 session of his debtor's goods, under color of legal process, without 
 conforming to the requisitions of law, and thus avail himself of 
 
144 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 such unauthorized possession, to the same extent [*^(55] as if he 
 "had taken and sold the goods on execution in conformity to law; 
 which he cannot do. The court are of opinion that upon his an- 
 swers, the "respondent was chargeable for the goods of Tufts, 
 when they thus came into his possession, and that not having ex- 
 posed and delivered them over to be sold, when demanded on the 
 execution, he is now answerable on this scire facias, for their value. 
 
 Various Names for Garnishment. — In Massachusetts, Maine, New 
 Hampshire and Vermont garnishment is known as trustee process, 
 and the garnishee is called trustee. In Connecticut and Rhode Island, 
 and to some extent in other states, it is called foreign attachment or 
 attachment, and formerly in Connecticut it was called factorizing; 
 but in all these states the stakeholders summoned are called garnishees. 
 
 For further preparation as to the nature of attachment and 
 garnishment read again Cooper v. Reynolds, ante 15 ; Greenvault 
 V. Farmers and Mechanics' Bank, ante 24; Wells v. American 
 Express Co., ante 31 ; Pennoyer v. Neff, ante 48; and, Chicago 
 R. I. & P. Ry. Co. V. Sturm, ante 71. 
 
k ISSUANCE OF THE PROCESSES. 
 
 1. WBAT IS ISSUANCE OF THE PROCESS. 
 
 GOWAN V. FOUNTAIN. 
 50 Minnesota 264, 52 N. W. 862. (1892) 
 
 Execution Sale — Collateral Attack — Form of Execution — Recitals — Issu- 
 ance. 
 
 Ejectment by Mary Gowan claiming title by sale on execution 
 .against defendants. From judgment for defendants plaintiff 
 brings error. Revfirsed. 
 
 Aha Hunt; for appellant. 
 
 C. A. Fosnes, for respondents. 
 
 The Court by Mitchell, J. The only questions raised by this 
 appeal involve the validity of the execution sale under which plaint- 
 iff claims title to the real estate in controversy. 
 
 Judgment was rendered and docketed in the district court in 
 and for Swift county in favor of the plaintiff and against the 
 defendant Bensel. 
 
 The clerk of the court in that county "issued" (to use the lan- 
 guage of the findings) an execution on the judgment directed to 
 Ihe sheriff of Chippewa county, (in which the land in question is 
 situated,) in which the date of docketing the judgment in the lat- 
 ter county was left blanks and at the same time "issued" a trans- 
 cript of the judgment, and delivered both to plaintiff's attorney, 
 with directions to him to have the date when the judgment should 
 be docketed in Qiippewa county inserted in the execution before it 
 was delivered to the sheriff for senrice. The attorney transmitted 
 both to the clerk of the court of Chippewa county, with instructions, 
 after the transcript was filed, and the judgment docketed in that 
 county, to insert the date of such docketing in the execution. Pur- 
 suant to these instructions, the clerk in Chippewa county filed the 
 transcript, and [*266] docketed the judgment, and inserted the date 
 
 10 
 
146 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 thereof in the execution, and returned it to the attorney, by whom 
 it was thereafter delivered for service to the sheriff of Chippewa 
 county, who proceeded thereunder to levy upon and sell the land 
 in question. It will be observed from this that the judgment had 
 been docketed in Chippewa county before the execution was deliv- 
 ered to the sheriff, and that the fact and date of such docketing 
 were then correctly stated therein. 
 
 The line of reasoning by which it is sought to establish the 
 proposition that this execution was void is substantially as follows : 
 That at common law all process of courts is limited to the territory 
 over which their jurisdiction extends; that the territorial jurisdic- 
 tion of the district court in and for a particular county is limited 
 to the county in which it is held ; that, therefore, the district court 
 has no authority to issue an execution to another county, except 
 that conferred by statute, which is limited to counties where the 
 judgment is docketed ( 1878 G. S. ch. 66, § 299) ; that conse- 
 quently such docketing is a condition precedent to the authority to 
 issue an execution, which jurisdictional fact must appear on the 
 face of the execution when issued (Id. § 295) ; that this execution, 
 having been issued before the judgment was docketed in Chippewa 
 county, was absolutely void. This is substantially the line of rea- 
 soning advanced by Justice Ryan, speaking for the court, in Kentz- 
 ler V. Chicago, M. & St. P. Ry. Co., 47 Wis. 641, 3 N. W. Rep. 
 369. We do not find it necessary to determine in this case whether 
 it is sound or not. We may remark, however, that it seems to us 
 more severely logical than practical, and we are by no means clear 
 that under our judicial system it is correct to say that the territorial 
 jurisdiction of the district court is limited to the county in which it 
 sits, especially in view of the provisions of 1878 G. S. ch. 64, § 3. 
 
 But, conceding the soundness of the doctrine, its applicability 
 to the present case depends upon the assumption that this execution 
 was issued at the date on which it was made out by the clerk of 
 the court of Swift county, and by him delivered to plaintiff's attor- 
 ney. If this premise is false, of course the conclusion falls with it. 
 The delivery to the attorney was not unqualified, but only provi- 
 sional and conditional ; the condition being that the judgment should 
 be docketed [*26/] in Chippewa county, and the date thereof 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 147 
 
 inserted in the execution before it was delivered to the sheriff 
 
 for service. It was issued, in the sense of being taken from the 
 
 clerk's office, before the judgment was docketed in Chippewa 
 
 county, but the judgment was docketed in that county before the 
 
 execution was issued in the sense of being delivered to the sheriff 
 
 for service ; and this is, in legal contemplation, the date of the issue 
 
 of an execution. This was, in substance, what was held in Molli- 
 
 son V. Eaton, i6 Minn. 426, (Gil. 383). It is true that in that case 
 
 the levy was on personal property, but, as respects the authority to 
 
 issue an execution to another county, we cannot see how that makes 
 
 any difference. The practice adopted in the present case has 
 
 obtained in this state from a very early date. It is an eminently 
 
 convenient one and injures nobody. Our conclusion, therefore, is 
 
 that the execution and the sale under it were valid. * * * 
 
 Judgment reversed. 
 
 • An order was made staying execution for twenty days. During this 
 time tlie clerk signed, sealed, and delivered an execution to the credi- 
 tor's attorney. After the stay expired the attorney delivered it to the 
 sheriff who levied it. Mandamus to compel the lower court to vacate 
 the levy was denied, because the writ was not issued till it reached the 
 sheriff's hands. Peterson v. Wayne Circuit Judge, 108 Mich. 608, 66 N. 
 W. 487. 
 
 The statute declared that judgments of courts of record should be 
 liens on the land of the debtor within the coimty, but should cease to be 
 such if execution thereon should not be issued within a year. An exe- 
 cution was filled out, signed, sealed, and deposited by the clerk in a 
 pigeon-hole for the sheriff. These facts were held not to be issuing the 
 writ, so as to preserve the lien. Pease v. Ritchie, 132 111. 638, 24 N. B. 
 4SS. 
 
 2. ON WHAT DEMANDS THE VARIOUS PROCESSES MAY ISSUE. 
 
 FERRIS V. FERRIS. 
 25 Vermont 100. (1853) 
 
 Form of Action — Ex Contractu or Ex Delicto — Garnishment in Tres- 
 pass — Statutory Conditions and Procedure. 
 
 Trespass by Daniel W. Ferris against George W. Ferris in 
 which W. H. Mosher was summoned as trustee. Defendant 
 pleaded in abatement that the writ was issued as an attachment in 
 an action of trespass. Plaintiff demurred. Judgment for de- 
 fendant, and plaintiff appealed. Affirmed. 
 
148 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 H. R. Beardsley for plaintiff. 
 
 G. Harrington for defendant. 
 
 7'he Court by I sham, J. The present trustee act, Comp. Stat. 
 256, provides, that upon all contracts, express or implied, made 
 since the first day of January, 1839, ^^'^ upon all contracts where 
 the principal defendant [*io^] has absconded from, or is resident 
 out of this state, or is concealed within it, a suit may be com- 
 menced thereon by a trustee process. This mode of relief is un- 
 known at common law. The remedy itself, the form of the proc- 
 ess, and mode of procedure, are given and prescribed~by statute, 
 and when adopted, its provisions ar:; to be strictly pursued, and 
 unless the case is expressly provided for by the act, it cannot be 
 sustained. These principles are illustrated and confirmed by the 
 case of Park et al. v. Trustees of Williams, 14 Vt. 213. 
 
 It is evident, therefore, that this suit cannot be sustained as a 
 trustee process, for the cause of action against the principal 
 defendant does not arise ex contractu. It is only in cases of 
 that character, that the process is given by statute * * * [*-roj] 
 * * * The result is, that the judgment of the county court, dis- 
 missing the suit, must be 
 
 AfRrmed. 
 
 STROCK V. LITTLE. 
 
 45 Pennsylvania St. 416. (1863) 
 
 Same — Garnishment in Account Render. 
 
 Foreign attachment in account render by Peter J. Little 
 against Jacob Strock. From judgment in favor of plaintiff 
 defendant brings error. Affirmed. 
 
 i*. L. Russell, for appellant. 
 
 John Cessna, for appellee. 
 
 Tht Court by Woodward, J. The only question upon this 
 record is whether foreign attachment will lie in account render. 
 And why will it not? Under the custom of London, all attach- 
 ments are grounded upon actions of debt or detinue ; but under 
 ■our statutes, which, being remedial, are to be liberally construed, 
 foreign attachments may issue in all actions sounding in contract 
 where the plaintiff can swear to the amount claimed, or the court, 
 upon a rule to show cause of action, can get at the sum in contro- 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 149 
 
 versy with [*'^ip] sufficient accuracy to fix the amount of bail 
 which the defendant is to give to dissolve the attachments. This, 
 I take it, is the rule which is deducible from our acts of assembly 
 and from the ruling in Fisher v. Consequa, reported in Sergeant 
 on Attachm. 44, s. c, 2 Wash. (U. S. C. C.) 392, Fed. Cas. No. 
 4816. 
 
 It will not lie in actions sounding in tort, for it was never 
 designed as a remedy in such cases. Porter v. Hildebrand, 14 Pa. 
 St. (2 Harris) 131. Nor in actions ex contractu for unliqui- 
 dated damages, for in such a case the court will have no standard 
 by which to fix the amount of defendant's bail; but wherever, in 
 actions ex contractu, the cause of action can be shown with such 
 approximate precision as will enable the court to prescribe the 
 amount of bail to the defendant, the writ may go. * * * A very 
 cumbersome and ill-favored action it is, to be sure, but nevertheless 
 it arises strictly ex contractu, is for a debt due, and although it 
 may result as assumpsit may, in a balance in favor of the defend- 
 ant, yet it is a case in which the cause of action may be shown and 
 the bail of defendant may be fixed. 
 
 Therefore, we hold it may be commenced by foreign attach- 
 ment. 
 
 The judgment is aKrmed. 
 
 Reed J., dissented. 
 
 ILLINOIS CENTRAL RAILROAD CO. v. WEAVER. 
 54 Illinois 319. (1870) 
 Enforcing Garnishment Judgment by Garnishment. 
 Garnishment by P. A. Ross against the Illinois Central R. R. 
 Co. as debtor of Weaver to enforce a judgment recovered against 
 Weaver as garnishee in an action by said Ross against one Hart- 
 man. From a judgment for plaintiff the I. C R. Co. appeals. 
 Reversed. 
 
 Geo. W. Wall, for appellant. 
 Casey & Dwight, for plaintiff. 
 
 The Court by Breese, /. * * * The only question presented is, 
 does a fair construction of the law of garnishment authorize pro- 
 cess of garnishment [*Ji'-r] against the debtor of the garnishee. 
 
150 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 against whom an execution has been returned nulla bona. R. S. 
 Ch. 8, p. 58. * * * 
 
 It is contended b)' appellee, that, by the thirty-eighth section 
 of chapter 57, title,"Judgments and Executions," R. S. 307, process 
 of garnishment is allowed on all judgments rendered by a justice 
 of the peace, and, therefore, judgment having been rendered 
 against Weaver as the debtor of Hartman, who was the debtor of 
 Ross, the plaintiff in the action, the same process could be awarded 
 against appellant, who was the debtor of Weaver. * * * [*332] 
 
 The proceeding is statutory and cannot be extended beyond 
 the plain provisions of the statute, and that evidently confines the 
 proceedings to the debtor of the debtor. An insuperable objection 
 to it, on principle, also exists, and it is this : there is no privity 
 whatever between the judgment debtor, Hartman, and appellants. 
 The principle of garnishment seems to . depend on this, and it 
 existed between Hartman, the debtor, and Weaver. To that 
 extent Ross, the plaintiff, could rightfully go, but no further. 
 While Hartman could sue Weaver, he could not have an action 
 against Weaver's debtors, the appellants in this case, he having no 
 interest in the subject, and there being no privity between them. 
 Harrell v. Whitmore, 19 Ala. 135. We think a fair construction 
 of the statute can go no further than to allow this process to reach 
 an indebtedness to the judgment debtor, and if the garnishee 
 appears and denies all indebtedness, and none is established against 
 him, the proceeding is at an end. The proceeding can not be 
 extended beyond the mere matter of reaching the property or 
 effects of the defendant. The debt due by appellant to Weaver, 
 was, clearly, not of that character. Even a court of chancery, on 
 a bill filed for such purpose, would have no authority so to apply 
 the debt due to Weaver. Wolf v. Tappan & Co. 5 Dana (Ky.), 
 361 ; .Jones v. Huntington, 9 Mo. 247 ; Drake on Attachments, sees. 
 
 454, 459- 
 
 In our view of the statute and of the practice under it for 
 many years, we are of opinion that the plaintiff in an action, resort- 
 ing to garnishment, after having obtained a judgment against his 
 debtor, can not extend it beyond the debtor of his debtor. 
 
 The circuit court having entertained different views, the 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 151 
 
 judgment of that court is reversed, with directions to dismiss the 
 proceeding as against appellants. 
 
 Judgment reversed. 
 
 In Illinois and a few other states garnishment proceedings are 
 conducted in the name of the judgment debtor against his debtor and 
 judgment entered accordingly, but in most states the proceedings are 
 in the name of the garnishing creditor against the garnishee. 
 
 I doubt whether this case would now be followed in many states. 
 The remedy Is now treated with greater liberality. The contrary was 
 held in Sperling v. Calfee, 7 Mont. 514, 19 Pac. 204. See also Esler v. 
 Kent Circuit Judge, post. 
 
 Wolf V. Tappan & Co., above, was originally a bill in chancery 
 seeking to obtain from residents of the state what they owed complain- 
 ant's non-resident debtor. Before the decree had been rendered a sup- 
 plemental bill was filed, suggesting that the defendants were becoming 
 Insolvent, and praying that certain of their debtors, who were made 
 parties to the supplemental bill, be restrained from paying defendants 
 what was due them. The trial court granted the restraining order, but 
 on appeal the decree was reversed, the court saying: "The mere exist- 
 ance of a general pecuniary demand creates no lien, general or speciflc, 
 either in law or equity, and therefore furnishes no ground, before de- 
 cree, for the court of equity to act in rem, or in any other manner than 
 _ upon the person of the debtor. * * » The supplemental bill * * ■• 
 makes no charge of fraud; and without admitting that the court could 
 have interposed, as it did, on the ground of preventing an intended 
 fraud, the fact that there was no allegation of such a fraud is a 
 sufficient answer." 
 
 Jones V. Huntington, was decided on facts similar to those in Wolf 
 V. Tappan & Co., except that the relief was asked in the original bill, 
 against Hamilton as judgment debtor, against Myers as his debtor, and 
 to restrain Huntington from paying to Myers because Myers was a 
 non-resident. The bill was dismissed, the court saying: "The case in 
 the bill would go a bow-shot further than any yet has gone." 
 
 ESLER V. KENT CIRCUIT JUDGE. 
 io8 Michigan 543, 66 N. W. 485. (1896) 
 
 Right of Successful Defendant to Process to Enforce his Judgment — 
 
 Construction of Statutes Giving to Plaintiff only 
 
 Process Unknown to Common Law. 
 
 Mandamus by Alexander D. Esler to compel Allen C. Adsit, 
 circuit judge^ to set aside an order vacating a judgment recovered, 
 by Esler. Granted. 
 
 Earle & Hyde, for relator. 
 
 Hatch & Wilson, for respondent. 
 
 The Court by Montgomery, J. This application for man- 
 
152 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS.. 
 
 damns presents the question of whether a defendant who has 
 recovered a judgment against the plaintiff may sue out a writ of 
 garnishment, based on such judgment, against a third party. The 
 circuit judge held that the defendant is not entitled to the remedy. 
 The statute (3 How. Stat. § 8058) reads as follows : "That in all 
 personal actions arising upon contract, express or implied, * * * 
 and in all cases where there remains any sum unpaid upon any 
 judgment or decree * * * jf (-^g plaintiff, his agent or attorney, 
 shall file with the clerk, * * * [*544\ an affidavit stating * * * 
 etc., a writ of garnishment shall be issued," etc. 
 
 The legislative intent, it must be conceded, is not made as 
 clear as might be desired, and we are cited to no case which can be 
 said to rule this. It is safe to assume, in view of the end aimed at 
 by the legislation, that it was not the intent to afford to one party 
 a remedy not open to the other. The ambiguity arises out of the 
 fact that the provision for remedy on judgment was inserted in a 
 section which previously provided for the suing out of the writ at 
 the commencement of suit, and the provision for the making 
 of the affidavit by the plaintiff was left unchanged. Literally con- 
 strued, this provision would render nugatory the remedy given on 
 a decree ; for, strictly speaking, there is no party in chancery desig- 
 nated as "plaintiff." The construction contended for by respond- 
 ent would also limit the general language giving the remedy in alt 
 cases where any sum remains unpaid on any judgment or decree. 
 We think it not unwarranted to assume that by the word "plain- 
 tiff," as here used, was meant the moving party or suitor in the 
 garnishment proceeding. A question having some analogy was 
 presented to the supreme court of Massachusetts. The statute 
 provided that after the rendition of a judgment in a civil action, if 
 the execution had not been satisfied, the court or justice, upon 
 petition of defendant, [*545] might order a stay of supersedeas. 
 It was held that the word "defendant," as used, was clearly 
 intended to refer to the person against whom the judgment sought 
 to be recovered was rendered, and who, as petitioner, asked for a 
 stay of execution, and not to the defendant in the original action. 
 Leavitt v. Lyons, 118 Mass. 472. See, also, Westcott v. Booth, 49 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 153' 
 
 Ala. 182; Fort Street Union Depot Co. v. Backus, 103 Mich. 564. 
 It has been held that, in garnishment statutes, the word "plaintiff" 
 should be construed to include the assignee, who is the owner of 
 the judgment. Dugas v. Matheivs, 9 Ga. 510. We are of opinion 
 that it was intended to give this remedy to the person who recov- 
 ered judgment or decree, whether he be plaintiff, complainant, or 
 defendant, and that the word "plaintiff," as used in the statute, 
 must be construed to mean the party moving in the garnishment 
 
 proceeding. 
 
 Writ granted. 
 
 ELLIOTT V. JACKSON. 
 
 3 Wisconsin 649. (1854) 
 
 Character of Demand — Ex Contractu or Ex Delicto. 
 
 Assumpsit commenced by attachment by Jackson against 
 Elliott. From judgment for plaintiff, defendant brings error. 
 Reversed. Jackson consigned goods to one Kent to sell on com- 
 mission and Elliott as constable levied on them under an execution 
 against Kent, whereupon Jackson brought this action against 
 Elliott for the value of the goods. 
 
 Ingalls, for appellant. 
 
 F. S. Lovell, for appellee. 
 
 The Court by Smith, J. * * * The whole proceedings as shown 
 by the record, present merely an ordinary case, in which the 
 property of a judgment or attachment debtor was levied upon and 
 claimed by a third person; or, in other words, a fair case for the 
 bringing of an action of trespass, trover, or replevin. But the 
 suit was commenced by attachment, and it doubtless seemed 
 necessary to the learned counsel for the plaintiff below, to bring 
 himself, if possible, within the provisions of the revised statutes, 
 which authorize the commencement of suits by attachment. 
 Section loi of chapter 28 of the revised statutes provides that, 
 "before any such writ of attachment shall be issued, the plaintiff, 
 or some person in his behalf, shall make and file with the justice 
 an affidavit, stating that the defendant therein is indebted to the 
 plaintiff in a sum exceeding five dollars, and specifying the amount 
 of such indebtedness, as near as may be, over and above all legal 
 
154 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 set-offs, and that the same is due upon contract, express or implied, 
 or upon the judgment or decree of some court, and containing a 
 further statement," etc. 
 
 The making of this affidavit, and the conformity of the cause 
 of action to the nature of the proceeding contemplated and author- 
 ized by this statute, are essential to the jurisdiction of the justice 
 of the writ thereby authorized. 
 
 The proceeding by attachment, with all its safeguards, is at 
 test, a violent remedy, and we are not disposed to give to the stat- 
 ute a more liberal construction than a fair interpretation of its 
 letter demands. [*654\ 
 
 The very essence of the statute is, that to authorize a 
 proceeding by attachment, the cause of action must be an 
 indebtedness over and above all legal set-offs, and that the same 
 is due upon a contract, express or implied. This case is too clear 
 to admit of a doubt. Neither the affidavit nor the declaration set 
 forth a contract, or a state of facts from which a contract may be 
 legally implied. The affidavit pursues the words of the statute, 
 and therefore the justice was authorized to issue the writ. But 
 whenever it appeared, either from the declaration or the evidence, 
 that the true cause of action was not an indebtedness due 
 upon a contract, express or implied, it became his duty to dismiss 
 the case. * * * [*655] 
 
 There are some cases in which a party may waive the 
 tort and sue in assumpsit. When the trespasser has con- 
 verted the property into money, the plaintiff may waive 
 the tortious taking and conversion, and sue for the proceeds, as for 
 money had and received. He is considered as ratifying the sale 
 made by defendant, and in such case can recover so much as prop- 
 erty brought, and no more. But of late, courts have been rather 
 inclined to restrict, than to extend the class of cases falling within 
 the rule which allows the plaintiff to waive the tort and sue in 
 assumpsit. * * * 
 
 In the case before us, there is no pretense of a sale of the 
 goods by the defendant below, nor any conversion of them into 
 money, or other thing of value. The action of assumpsit, there- 
 fore will not lie. This is not a case in which the tort may be waived 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 155 
 
 :and it is apparent, from the character of the affidavit, and the 
 extraordinary character of the declaration, or statement of the 
 
 ■ cause of action, that the only object in view, in bringing 
 an action of assumpsit, was to render the writ [*<55(5] of attach- 
 ment available. We cannot permit the statute to be thus 
 
 ■defrauded, nor its wholesome restrictions evaded by a subterfuge 
 
 ■ of such kind. If the action of assumpsit can be sustained in this 
 ■case, it can in every case in which an officer levies on goods or 
 
 • chattels claimed by another, and indeed, in every case of mere tres- 
 pass to personal property. 
 
 Of course we have here had no reference to cases brought 
 .against an executor or administrator, or where the tort feasor is 
 dead, and the action of trespass or trover is lost, or to the case of 
 tortious enticing away or hiring of apprentices, etc. These and 
 their like rest upon their own peculiar circumstances, and must be 
 determined according to the legal principles applicable to each, as 
 
 • occasion shall require. * * * 
 
 The judgment of the county court is reversed, with costs. 
 
 WILSON V. LOUIS COOK MANUFACTURING CO. 
 88 North Carolina 5. (1883) 
 
 •Character of Demand — Liquidated or Uniiquidated — Capable of IVIeas- 
 urement — Wliat Standard. 
 
 Appeal by plaintiff from an order vacating an order for 
 .attachment; the objection being that the action is brought to 
 recover unliquidated damages, too uncertain in amount to enable 
 .attachment under Cod. Civ. Proc, 197 providing that the plaintiff 
 may have attachment "in an action arising on contract for the 
 recovery of money only, or in an action for the wrongful conver- 
 sion of personal property." 
 
 Biirwell & Walker, for plaintiff. 
 Jones & Johnston, for defendant. 
 
 The Court by RufEn, /. * * * The law as regards this matter 
 has been recently fully considered in Price v. Cox, 83 N. C. 261, 
 -and as it is impossible to distinguish the two cases in principle, the 
 •conclusion then reached must control us now. The rule to be 
 
 • deduced from that case is, that an attachment may be had in sup- 
 
156 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 port of any demand arising ex contractu, the amount of which is 
 ascertained or is susceptible of being ascertained by some stand- 
 ard, referable to the contract itself, sufficiently certain to enable the 
 plaintifif to aver it in his affidavit, or a jury to find it ; but not so, if 
 the action be one for unliquidated damages, in which the contract 
 alleged furnishes no rule for ascertaining them, but leaves the 
 amoimt to remain altogether uncertain until fixed by the jury, 
 without any definite rule of law to direct them. 
 
 The plaintiff in this action seeks to recover compensation for 
 the loss of such profits, as he conjectures he might have derived 
 from selling buggies as agent for the defendant, had they been 
 furnished him according to the terms of the contract. It is there- 
 fore a case of purely uncertain damages, with no standard fur- 
 nished by the contract itself, or fixed rule of law, for ascertaining 
 them, and it is impossible to suppose a case farther removed from 
 the provisions of the statute than it is. 
 
 In Lawton v. Kiel, 51 Barb. (N. Y.) 30, cited by counsel, the 
 facts were that the defendant contracted to buy sound corn, but 
 bought indifferent corn for the plaintiff. The standard of dam- 
 ages was said to be the difference in the quality and market values 
 of the two kinds of corn ; and as nothing was wanting but for the 
 jury to ascertain that difference, it was held that the plaintiff was 
 entitled to have an attachment under the maxim id cerium est quod' 
 certum reddi potest; and it was so held too, [*/] under somewhat 
 similar circumstances in Garland v. Cunningham, 37 Pa. St. 228. 
 But these cases bear no sort of analogy to the one before us, and 
 indeed by referring to the opinions of the judges as delivered in 
 them, they will be found to be in perfect harmony with the 
 decision in Price v. Cox. * * * 
 
 No error. AfHrmed. 
 
 I think this case very accurately and clearly states and illustrates- 
 the rule. Substantially the same rule prevails whether attachment be 
 given to "any creditor," or for the recovery of "any debt" or "any 
 demand." Price v. Cox above was an action for breach of promise to- 
 marry. 
 
 Attachment has been held available in an action for damages for 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 157 
 
 breach of contract to furnish tea of a certain quality, the tea furnished 
 being inferior. The measure of damages is the difference between the 
 market value of the tea furnished and that promised. Fisher v. Con- 
 sequa, 2 Wash. C. C.382, Fed. Cas. No. 4816. This is the leading case 
 on this point. The same was held in a similar action for 
 delivering flour inferior to contract. Wilson v. Wilson, 8 Gill 
 (Md.) 192, 50 Am. Dec. 685. Again it was held available in 
 an action for damages for the non-delivery of goods promised, 
 ■Goldsborough, v. Orr (lumber), 21 XJ. S. (8 Wheaton), 217; Hyman v. 
 Newell (cigars), 7 Col. App. 78, 42 Pac. 1016; Stiff v. Fisher (cattle), 2 
 Tex. Civ. App. 346, 21 S. W. 291. Again, though the goods promised 
 were a specific stock of goods then in store (Carland v. Cunningham 
 •37 Pa. St. 228), or a certain promissory note, the measure of damages 
 being the difference between the contract price and the face of the 
 note with interest. Dirickson v. Showell, 79 Md. 49, 28 Atl. 896. Again 
 the attachment was held available on a quantum meruit for the use of 
 vessels and for demurrage. Roelofson v. Hatch, 3 Mich. 277. Again 
 In an action for damages for failure to sell as agreed land purchased 
 by plaintiff through defendant in consideration of such agreement. 
 ■"The amount to be paid is fixed by the terms of the contract, or can be 
 readily ascertained from the information it affords." It is "the differ- 
 ence between the value of the land at the end of the year and the 
 amount which the defendant bound himself to realize from it for the 
 plaintiff." Dunn v. Mackey, 80 Cal. 104, 22 Pac. 64. Again attachment 
 was held available in an action for damages for failure to tow a cer- 
 tain keelboat up Red river and deliver corn at certain places. Jones 
 V. Buzzard, 2 Ark. 415. Again, for failure to scale logs, thereby pre- 
 venting plaintiff cutting them and causing him expense by the delay. 
 Messinger v. Dunham, 62 Ark. 326, 35 S. W. 435. Again, attachment 
 was held available in covenant for failure to build a mill and pay $1500 
 for a warranty deed which had been tendered. Barber v. Robeson, 
 15 N. J. L. (3 Green,) 17. Again, in debt for goods sold and delivered 
 and for failure to pay an accepted draft including $25 attorney fees 
 occasioned by such failure. Waples P. G. Co., v. Basham, 9 Tex. Civ. 
 App. 638, 29 S. W. 1118. 
 
 Attachment was Held Not Available on facts very much like Wil- 
 son V. Louis Cook Mfg. Co., except that the contract was to sell cloth- 
 ing by sample. Hochstadler v. Sam. 73 Tex. 315, 11 S. W. 408. This is 
 also an excellent case for the student to read. Again, for refusing to 
 employ a ship according to charter party whereby the owner was to 
 have £670 per month as long as the voyage named should require. 
 Clark V. Wilson, 3 Wash. C. C. 560, Fed. Cas. No. 2841. This is a lead- 
 ing case. Again, for refusing to deed and deliver several parcels of 
 land subject to separate incumbrances, and certain bonds and ^Ltocks 
 in exchange for others held by plaintiff. Hough v. Kugler, 36 Md. 186. 
 Again, for delay in selling a cargo of flour and failure to invest the 
 proceeds in a cargo of coffee as agreed. Warwick v. Chase, 23 Md. 
 
158 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 154. Again, for failing to mine at least 10,000 tons per annum and' 
 pay $2 per ton royalty. Heckschier v. Trotter, 48 N. J. L. 419, 5 Atl. 
 581. Again, for failure of title to a patent sold to plaintiff. Mills v. 
 Findlay, 14 Ga. 230. Again, for failure to ship a stock of boots and 
 shoes to plaintiffs, who had rented a store to engage in business. 
 Hoover v. Hathaway, 20 Dist. Col. (9 Mackey), 591. Again, for value of 
 iron defendant agreed to carry safely but lost. Hazard v. Jordan, 12 
 Ala. 180. 
 
 While the decisions above named are not all reconcilable the- 
 courts rendering them claim to follow the rule announced in Fisher v. 
 Consequa above, and in the main they are in harmony with Wilson v. 
 Louis Cook Mfg. Go. 
 
 Uncertainty Immaterial. In several cases it is declared that un- 
 certainty as to the amount of plaintiff's demand is no objection and 
 the attachment sustained. See following. For negligently towing 
 a raft of logs; New Haven S. S. Co. v. Fowler, 28 Conn. 103; negli- 
 gently carrying goods; Lenox v. Howland, 3 Caines, N. Y., 257, 323; or 
 for a defect In a grain drill sold and warranted to plaintiff; Baum- 
 gardner v. Dowagiac Mfg. Co., 50 Minn. 381, 52 N. W. 964; or for refus- 
 ing to accept and pay for a stock of hardware at agreed price; Lord v. 
 Gaddis, 6 Iowa 57; or for damages on an attachment bond; Withers v. 
 Brittain, 35 Neb. 436; 53 N. W. 375; or for breach of promise to 
 marry, attachment being given on "all money demands," Morton v. 
 Pearman, 28 Ga. 324; or for unpaid duties on silks smuggled; U. S. v. 
 Graff, 67 Barber (N. Y.) 304. See also Steen v. Norton,^ 45 Wis. 418. 
 
 In Louisiana it is said attachment is given to recover a debt and 
 an action may be in the debit or the detinet, "which is on an express 
 agreement to deliver any specific property." Therefore attachment 
 lies in an action against a earrier for loss of goods; Hunt v. Norris, 4 
 Martin (La.) 517; and in an action for failure to bind and return 
 books. Turner v. Collins, 1 Martin, N. S. 369. 
 
 If the penalty named in a bond is to cover such damages as the 
 party may become entitled to, and not to liquidate the damages, attach- 
 ment does not lie unless the damages are so certain in amount as to 
 comply with the rule announced in the text. Brown v. Hoy, 16 N. J. 
 L. 157; Cheddick v. Marsh, 21 N. J. L. 463; State v. Beall, 3 H. & M, 
 (Md.) 347, Hough v. Kugler, 36 Md. 186. 
 
 Amount of Final Recovery. "And though the defendant 
 may contest the demand upon him, or may show that no damage has 
 in fact been sustained by the plaintiffs, that does not affect the ques- 
 tion whether the contract supplies the plaintiff a measure of dam- 
 ages to which he can make affidavit." Dirickson v. Showell, 79 Md. 
 49, 28 Atl. 896. 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 159 
 
 HA WES V. CLEMENT. 
 64 Wisconsin 152, 25 N. W. 21. (1885) 
 Character of Demand — Accounting Necessary to Find Amount — Inter- 
 vention — Who Raise Question. 
 
 Motion by Clement and five other execution creditors of Boyd 
 to vacate an attachment of Boyd's property, levied in an action by 
 Hawes against Boyd, and a counter motion by Haw'es that the 
 property be used in satisfaction of his judgment. The circuit 
 court denied the motion by Clement et al. and granted Hawes's 
 motion. Clement et al. appeal. Reversed. 
 
 The principal ground for the motion to vacate was that 
 Hawes's claim was of such a nature that an attachment could not 
 lawfully issue in an action to enforce it. 
 
 Fethers, Jeffris & Smith, for appellants. 
 
 Carpenter & McGowan and Wm. Ruger, for respondent. 
 
 The Court by Lyon, J. The moneys in the hands of the 
 sheriff, being the proceeds of the sale of the attached property, 
 are under the control of the court, and doubtless the court may 
 inquire and determine who is entitled thereto, and order the same 
 paid over to the person or persons so entitled. The procedure to 
 that end, in form, is in the action of Hawes v. Boyd, [*I54] yet, in 
 substance and effect, it is not strictly in that, or in either of the 
 actions against Boyd, but is rather in the nature of a special pro- 
 ceeding growing out of and founded upon all of those actions ; to 
 which proceeding all the attaching creditors of Boyd (and perhaps 
 Boyd also) are parties. If the respondent's attachment was valid, 
 he is entitled to have his judgment paid first out of such moneys. 
 If his attachment is not valid, the appellants, the other attaching 
 creditors of Boyd, are first entitled to have the moneys applied in 
 payment of their judgments in due order of priority. Manifestly 
 the appellants may, in some proceeding, litigate and have deter- 
 mined the question of the validity or invalidity of such attachment. 
 Regarding substance rather than mere form, we think they have 
 adopted an effectual procedure to obtain an adjudication of that 
 question. If authorities are required to a proposition so reason- 
 able and just, they may be found cited in the notes to sec. 275, 
 Drake on Attachment. * * * 
 
160 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 The cause of action stated by the respondent in his action 
 against Boyd is to the effect that in March, 1884, he dehvered to 
 Boyd goods, wares, and merchandise of the value of $7,814.83 to 
 be sold by the latter for him at Janesville. * * * [*i'55] * * * 
 
 The complaint concludes with the following averments : "This 
 plaintiff further shows that he is unable to state what, if any, por- 
 tion of said goods so delivered by this plaintiff to said defendant 
 to be sold as aforesaid, remain unsold; and this plaintiff will be 
 unable to state the exact amount till after he takes an inventory of 
 the goods remaining unsold and belonging to this plaintiff; and 
 this plaintiff further shows that the balance of said goods so deliv- 
 ered to said defendant and remaining unsold, or sold and unac- 
 counted for, is the sum of $6,845.18, with interest from the said 
 :4th day of July, 1884." Judgment is demanded for the sum last 
 named. 
 
 It is essential to a valid execution of a writ of attachment 
 that the affidavit annexed thereto should state not only a statutory 
 cause for issuing the writ, but also the amount of the defendant's 
 indebtedness to the plaintiff "as near as may be, over and above 
 .all legal set-offs." R. S. § 2731. The statement of the amount 
 of such indebtedness is a most vital one. For the purposes of the 
 execution of the writ it imports absolute verity, because it is not 
 traversable in a proceeding by traverse to dissolve the attachment. 
 R. S. sec. 2745. Such statement is the guide to the officer execut- 
 ing the writ as to the amount of property he ought to seize in order 
 to secure the plaintiff. Hence it is required for the protection of 
 the debtor, and of his other creditors as well. 
 
 Considering the importance of such statement, it necessarily 
 and logically follows that if the cause of action be of such a char- 
 acter that it is impossible for the plaintiff or [*i'5<5] his agent to 
 know the amount of such indebtedness, no attachment founded 
 upon it can be lawfully executed. 
 
 Taking the most favorable view for the respondent, Hawes, 
 of the transactions between himself and Boyd, and we have this 
 state of facts : Hawes delivered his goods to Boyd, in trust that 
 Boyd would sell them and pay over to him the proceeds of the 
 sales, less one half the net profits. In stating the indebtedness, 
 
;0N WHAT DEMANDS THE PROCESSES MAY ISSUE. 161 
 
 Mawes included nothing for profits. He merely claimed the value 
 ■of the goods delivered to Boyd, less payments. We may therefore 
 exclude from consideration any question of the amount of 
 profits. But in order to ascertain the amount of Boyd's 
 indebtedness to Hawes at any given time, it was necessary to know 
 what amount Boyd had realized for such of the goods as he had 
 ■theretofore sold. It was not sufficient to know merely what goods 
 he had sold, for the value thereof is not the measure of his indebt- 
 >edness. It is the amount realized which, under the contract men- 
 tioned in the complaint, measures the liability of Boyd. Hence, 
 before Hazves, or any one for him, could state the amount of 
 Boyd's indebtedness, it was necessary to have an accounting of the 
 .goods sold and the prices realized therefor. Because the respond- 
 ent's attachment was sued out and executed before any such 
 accounting was had, and before he or his agent knew, or could 
 know, the amount of Boyd's indebtedness (all which sufficiently 
 appears in the complaint in that action), it must be held that the 
 respondent obtained no lien upon the property attached, as against 
 the appellants, who subsequently attached the same property. * * * 
 r*j5p] * * * 
 
 It results from the views above expressed that the order of 
 the circuit court, that the respondent's judgment and execution be 
 first paid out of the moneys in the hands of the sheriff, must be 
 reversed, and the cause remanded with directions that such moneys 
 he first applied in satisfaction of the appellants' judgments and 
 executions in due order of priority. 
 
 By the Court. It is so ordered. 
 
 Partnership Accounting. — "Tbis, then, is a suit for the liquidation 
 and settlement of a partnership, the ascertainment of the balance 9.nd 
 <5eoree therefor. It is true that the plaintiff professes to have calcu- 
 lated and to his own satisfaction ascertained the balance; but it is 
 quite obvious that the partnership affairs involve mutual items of 
 debit and credit, numerous and diversified in their nature. * * * It 
 would seem impossible under the showing of the petition Itself, and 
 especially as it does not allege that any accounts have been rendered, 
 nor any balance of account actually struck by the partners, that the 
 plaintiff should be able to declare with certaiiity, the amount which, 
 on a final liquidation and settlement of these affairs, will be found due 
 to him. * * * We do not, however, wish to be considered as laying 
 11 
 
162 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 down tlie rule that, in no case of joint adventure can a partner proceed 
 by attachment. Suits may occur in which the business of the adven- 
 ture may be so limited and simple in its features, as to exhibit a case 
 where the party might be considered as able to swear to a positive and 
 precise balance." Decree dissolving the attachment affirmed. Brine- 
 gar V. Griffin, 2 La. An. 154. To same effect. Johnson v. Short, 2 La. 
 An. 277; Barrow v. McDonald, 12 La. An. 110; Treadwey v. Ryan, 3 Kan. 
 437; Rice v. Beers, 1 Rice's Dig. of S. Car. Rep. 75; Ackroyd v. Ackroyd, 
 11 Abbott Prac. (N. Y.) 345, 20 How. Prac. 93. But see Humphreys v. 
 Matthews, 11 111. 471, In Georgia and California the point has been 
 made, but the attachments were sustained on tne ground that the parties 
 were not in fact partners. Wheeler v. Farmer, 38 Cal. 203; HoUoway v. 
 Brinkley, 42 Ga. 226. 
 
 An excellent argument by Ewing, C. J., to the effect that attach- 
 ment does not lie if the amount is not sufficiently certain to enable the 
 court to fix the amount of bail which the defendant must give to dis- 
 solve the attachment, will be found in Jeffiery v. Wooley, 10 N. J. L. (5 
 Halsted) 145. In that case the attachment in an action on a plea of 
 covenant was quashed because it did not appear from the attachment 
 affidavit or other proceedings in the action that the covenant broken 
 was of such a nature that the plaintiff's damages for the breach of it 
 would be certain. "The jurisdiction must be shown not presumed." 
 
 PETRIE v. PAINE. 
 
 9 Vermont 271. (1837) 
 
 Ground for Attachment — Statutory Exigency Necessary — Who Object. 
 
 Action by Emerson & Petrie against Nathan Paine as trustee 
 of George Petrie, principal debtor. Judgment for the trustee. 
 Plaintiffs excepted and the cause passed to this court. Affirmed. 
 
 IV Upham, for plaintiff. 
 
 L. B. Peck, for trustee defendant. 
 
 The Court by Collamer, J. The trustee interposed a plea in 
 bar, that Geo. Petrie was not an absconding or concealed debtor. 
 The county court refused, on motion, summarily, to dismiss this 
 plea, to which the plaintiff excepts, as error. * * * The plaintiff 
 insists, that the trustee had no right to make this plea in his own 
 behalf, but only in behalf of the principal debtor, after confessing 
 himself trustee. The plea, on its face, purports to be the plea of 
 the trustee, in his own right. * * * [*274] * * * 
 
 The statute prescribes a form for the process, in which the 
 plaintiff alleges, that the principal debtor is absconded or con- 
 cealed, and that the trustee has effects, etc., and calls on him to 
 answer, etc. This statute clearly interferes with the common law 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 163 
 
 rights of the trustee, in many important particulars. It subjects 
 him to the process of a stranger, with whom he has no privity. It 
 calls him into court, when his creditor does not desire it. It sub- 
 jects him to personal disclosure. It enables the court, on that dis- 
 closure and other evidence, to give a judgment against him. * * * 
 It is not to be supposed this was intended to be done, but in a case 
 of real necessity, such as is clearly within the statute. The stat- 
 ute, very clearly, subjects no man to this, but in the case of an ab- 
 sconding or concealed debtor. * * * 
 
 It is said the principal debtor may make this same plea, but his 
 neglecting or refusing does not deprive the trustee of so doing. * * 
 
 Judgment aMrmed. 
 
 In the following attachment cases garnishees pleaded that plaint- 
 iffs' demand was not one on which attachment was allowed. Hoover 
 v. Hathaway, 20 Dist. Col. (9 Mackey), 591, Warwick v. Chase, 23 Md. 
 154. But under many statutes garnishment is a remedy independent 
 of attachment and therefore available though attachment might not be. 
 
 WILEY V. SLEDGE. 
 8 Georgia 532. (1850) 
 Ground for Attachment — As to Part Only of Defendants — Right to Sev- 
 eral Action — Death of Partner. 
 
 Attachment by L. M. Wiley & Co. against Sledge for a debt 
 due plaintiff from Birdsong & Sledge, partners, on the ground 
 that Sledge was removing from the state. From a judgment 
 quashing the attachment plaintiffs appeal. Affirmed. 
 
 H. Holt, for plaintiffs. 
 
 W. Dougherty, for defendants. 
 
 The Court by Lumpkin, J. The only question in this case is, 
 whether, when one of the members of a firm, transacting business 
 in Georgia, resides out of the state, an attachment will lie against 
 him on a firm debt, to be levied on the partnership effects ? 
 
 The case is not without its difficulties. We think, however, 
 that the attachment will not, ordinarily, lie. This summary rem- 
 edy is allowed only against the debtor of the plaintiff in attach- 
 ment. Here the debtor is the ftrm of Birdsong & Sledge, and not 
 Nathaniel Sledge, individually. For this simple reason alone, it 
 would seem that this proceeding could not be sustained. It is not 
 
164 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 authorized by the language of the law. Partners must be sued 
 jointly; and while there is no process [*55j] of outlawry in civil 
 cases in Georgia, the return of non est inventus has, under the act 
 of 1820, (Prince, 445), pretty much the same effect. Still, the 
 action must be joint. An attachment is a suit. Why should the 
 plaintiff be permitted, in this form of proceeding, more than by 
 ordinary process, to go against one'partner separately ? 
 
 In Alabama, it has been decided that a non-resident partner 
 may be attached, although there is one of the firm resident in the 
 state. Winston v. Ewing, i Ala. 129. Green v. Pyne, Ibid, 235. 
 Conklin v. Harris, S Ala. 213. But these cases are put by the 
 court upon the attachment law of that state, which makes the 
 debts of partners joint and several, allowing a remedy against 
 either. Aikin's Digest, 268. 
 
 The remedy by attachment is allowed in this state, because 
 the ordinary process of law cannot be served on the debtor. If 
 personal service can be effected, then the attachment cannot issue. 
 Here, notwithstanding the non-residence of one of the firm, suit, 
 under the Act of 1820, can be prosecuted to judgment against the 
 partners who live in the state, and the judgment will bind the 
 partnership effects, as well as the individual property of the part- 
 ners who are served. A debtor may fraudulently remove his 
 property from the state, for the purpose of defeating his creditors, 
 yet if he remain himself, an attachment will not lie; and why? 
 Because a ca. sa. would coerce the surrender of the property thus 
 ■eloigned. — The same result could be obtained by ordinary suit 
 against the resident partner. The law may be defective in not 
 providing for this case, as has been done in our sister state. It 
 is not for us to remedy the evil. 
 
 We do not hold that a state of things might not exist which 
 
 would authorize an attachment against one or more non-resident 
 
 members of a firm on a copartnership contract — as, for instance, 
 
 the death of the resident partner or partners. Suffice it to say, 
 
 that the record presents no such circumstances. 
 
 Judgment affirmed. 
 
 In some states statutes exist making all joint debts joint and sev- 
 eral, thus enabling suit against any one of the debtors; and under these 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 165 
 
 it is held that in an action against all any ground for attachment ex- 
 isting against one enables an attachment of his property. Board of 
 Comm'rs of Jefferson Co. v. Swain, 5 Kan. 376; Searcy v. Platte County, 
 10 Mo. 269; Franciscus v. Bridges, 18 Mo. 208. And in some states this 
 enables the attachment of the Interest of both in their joint property. 
 Williams v. Muthersbaugh, 29 Kan. 730 ; Cohen v. Gamble, 71 Miss. 478, 
 15 South. 236. 
 
 Though the singular number, "debtor," be used in the statute, at- 
 tachment lies against joint debtors if ground for attachment exists 
 against all; but one of several joint debtors could not be sued alone 
 by attachment merely because ground for attachment does not exist 
 as to others. Kouns v. Brown, 18 Ky. (2 T. B. Mon.) 146. But if 
 the obligation is joint and several he may be. Leach v. Swann, 8 
 Blackf. (Ind.) 68. 
 
 In Kentucky the statute allowing attachment to issue against "a 
 defendant or several defendants who or some of whom" have abscond- 
 ed or fraudulently disposed of property, etc., is held to enable attach- 
 ment of the property of all when one absconds. Mills v. Brown, 2 
 Mete. 404; Duncan v. Headley, 4 Bush. 45. 
 
 But in Michigan under a similar statute the court by Judge Cooley 
 held that only the property of the partner attempting to defraud his 
 creditors could be attached. Edwards v. Hughes, 20 Mich. 289. Same 
 point, Bogart v. Dart, 25 Hun (N. Y.) 395. 
 
 The fact that some of the non-resident defendants were found and 
 personally served is no reason for dismissing an attachment issued on 
 the ground of non-residence. Jackson v. Perry, 52 Ky. (13 B. Mon.) 
 231. 
 
 Curtis V. Hollingshead, 14 N. J. L. (2 Green) 402, contains 
 an elaborate argument by Hornblower, C.J., of the point that the stat- 
 ute allowing attachment because the defendant is a non-resident or has 
 absconded does not mean that the defendant or part of the defendants 
 are non-residents, etc. To the same effect see Corbit v. Corbit, 50 N. 
 J. L. 363 ; Remington v. Howard Express Co., 8 R. I. 406, Cowdin v. Hur- 
 ford, 4 Ohio, 133; Taylor v. McDonald, Id. 150; Wilson v. Circuit Judge, 
 82 Mich. 169, 46 N. W. 439; Leach v. Cook, 10 Vt. 239. 
 
 In New York, under a statute providins: "That whenever any per- 
 son, * * * being indebted within this state shall either secretly 
 depart from or keep concealed within the same," etc., his creditors may 
 attach (Laws of N. Y. 1813, p. 157), it was held that in an action against 
 partners for a partnership debt the property of one who had absconded 
 might be attached though the other defendants resided within the 
 state and were capable of being arrested. Matter of Chipman, 14 
 Johns. 217. A similar decision was reached in Wisconsin under a simi- 
 lar statute (Bank of Northwest v. Taylor, 16 Wis. 638), and again in 
 Iowa in which Wright, C.J., giving the opinion of the court, very ably 
 discusses the question overruling several prior decisions of the same 
 court to the contrary. Chittenden v. IHobbs, 9 Iowa, 417. I believe 
 McHaney v. Cawthorn, 4 Heisk. (Tenn.) 508, is to the same effect. 
 
166 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 though I have not access to the statute. But the partnership property 
 could not be attached in such a case, for the remaining' partners have 
 a right to retain it to pay partnership debts. In re Smith, 16 Johns. 
 102. But his interest in the property, what might be left after final ac- 
 counting, could be attached. Staats v. Brlstow, 73 N. Y. 264. If the 
 defendants were not partners such an attachment takes the undivided 
 interest of the defendant against whom ground for attachment exists, 
 and it is held that the sheriff may retain possession though the attach- 
 ment was issued against all and quashed as to the others for want of 
 grounds. Bank of Northwest v. Taylor, 16 Wis. 638. When the part- 
 nership through one of the partners was fraudulently disposing of the 
 assets it was held that attachment lay against the firm property. Wil- 
 son Obear G. Co. v. Cole, 26 Mo. App. 5. But when the partnership 
 obtained the credit on the fraudulent representation of one partner 
 who made the purchase it was held that the individual property of the 
 innocent partner could not be attached In a suit against the firm for 
 the debt it had thus fraudulently contracted. Opinion by Hooker, J., 
 Long and Grant, JJ., concurring, Montgomery, J., and McGrath, C.J., 
 dissenting. Jaffray v. Jennings, 101 Mich. 515, 60 N. W. 52. 
 
 Ground for Attachment as to All but not Same Ground. When one 
 cause for attachment existed against one partner and another cause 
 existed against the other an attachment of the firm property In an ao- 
 tion against the firm was sustained though neither ground existed 
 against both. Sellew v. Chrisfield, 1 Handy (O.) 87. See also Starr 
 V. Mayer, 60 Ga. 546 ; Bank of Northwest v. Taylor, 16 Wis. 638. 
 
 MEYER v. EVANS. 
 
 27 Nebraska 367, 43 N. W. 109. (1889) 
 
 Character of Demand — Part Proper, Part Not, Effect — Good Faith. 
 
 Action by Max Meyer et al. against F. B. Evans. From 
 judgment of the district court discharging certain attachments of 
 Evans's property plaintiff brings error. Affirmed. 
 
 Charles Ogden, for plaintiff. 
 
 W. S. Shoemaker, for defendant. 
 
 The Court by Cobb, J. * * * It appears that the plaintiffs 
 were wholesale dealers in Omaha, and the defendant a retail pur- 
 chaser on credit. On [*368] February i, 1887, the defendant 
 purchased of plaintiffs a bill of goods amounting to $8.50 on 
 credit, without question or representation of any kind. On Feb- 
 ruary 2, following, he purchased a larger bill amounting to $245.70 
 on fraudulent representations, it is claimed by plaintiffs and de- 
 nied by the defendant, and, on the following day, a third bill of 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 167 
 
 $8.50; total, $262.70. * * * [*37i] * * * The county court found 
 that the defendant had fraudulently contracted a portion of the 
 debt on which the attachments had been issued, but that another 
 portion, $8.45, was contracted prior to the time that any fraudu- 
 lent representations had been made by defendant, and therefore 
 the attachment did not obtain, according to law, and was dis- 
 charged. The district court affirmed this decision. 
 
 The case, in this court, presents the same question as that of 
 Mayer v. Zingre, 18 Neb. 458, in which the attachment was dis- 
 charged for want of grounds covering the whole debt. Counsel 
 for plaintiffs in error seek to distinguish it from that case from the 
 fact that that attachment was for $381.20, while the grounds of 
 attachment set up in the affidavit of the plaintiffs, only applied to 
 $51.09 of the debt; and in the case at bar it is argued that out of 
 $262.70, the grounds of attachment found by the county court, 
 and affirmed by the district court, apply to all but $8.45, and coun- 
 sel claims that this comparatively insignificant item falls within 
 the rule of the maxim de minimis non curat lex, "the law takes no 
 notice of extreme trifles." 
 
 While it is not impossible that a case might arise in which it 
 
 would be so apparent that an insignificant item had unintentionally 
 
 been added to the amount sued for, which did not fall within the 
 
 grounds of attachment, that it might [*J7^] properly be rejected, 
 
 and the claim purged by the plaintiff to that which should have 
 
 been the initial claim, it does not seem apparent that proceedings 
 
 can be sustained for any sum, however insignificant, for which 
 
 no grounds of attachment are claimed, simply on account of its 
 
 being merged and found in another claim for which sufficient 
 
 grounds of attachment do exist. The judgpnent of the district 
 
 court is affirmed. 
 
 Judgment affirmed. 
 
 This case goes as far as any I have seen, but a majority of the de- 
 cisions seem to be in harmony with Meyer v. Evans. See Willman v. 
 Freidman, (Idaho) 35 Pac. 37; Wilson v. Harvey, 52 How. Prac. (N. Y.) 
 126; Bstlow v. Hanna, 75 Mich. 219, 42 N. W. 812; Stiff v. Fisher, 85 
 Texas, 556 ; Smith Drug Co. v. Casper Drug Co. 5 Wyo. 510, 40 Pac. 979. 
 
 While recognizing the rule announced in the above cases, Mackey 
 v. Hyatt, 42 Mo. App. 443, is not reconcilable with Meyer v. Evans. It 
 was on similar facts and attachment was sustained, the court saying: 
 
168 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 It is "a debt in solido and not severable. It is a running account for 
 merchandise, and an action on any part of it would bar an action for 
 the balance. * * * When we admit that part of an Indivisible debt 
 was contracted in fraud, we may say the entire debt was." See also 
 Dawson v. Brown, 12 Gill. & J. (Md.) 53; Gross v. Goldsmith, 4 Mackey 
 (D. C.) 126. 
 
 The fact that Plaintiff Fails to Recover as Much as He Swore to 
 be due is not ground for dismissing the attachment (Brewer v. Ains- 
 worth, 32 Ga. 487; Sackett v. Partridge, 4 Iowa, 416; Mendes v. Prei- 
 ters, 16 Nev. 393 ; Donnelly v. Blser, 69 Tex. 282, 6 S. W. 563 ; Dirickson 
 V. Showell, 79 Md. 49, 28 Atl. 896); unless more is intentionally claimed 
 than he expected to be able to recover. Tucker v. Green, 27 Kan. 355; 
 Hg,le V. Chandler, 3 Mich. 531, and cases cited therein. 
 
 EMERSON V. DETROIT STEEL & SPRING CO. 
 100 Michigan 127, 58 N. W. 659. (1894) 
 
 Attachment — Affidavit, Disjunctive — Amount Due — Fraudulently Con- 
 tracted — Equity Jurisdiction. 
 
 Bill by assignee for benefit of creditors to set aside attach- 
 ments against the assignor, for irregularities and for want of 
 grounds for attachment. Defendants appeal. Decree modified. 
 
 Thomas A. Wilson, and Edwin F. Conely, for complainants. 
 
 Moore & Moore and Wm. H. Wells, for defendant. 
 
 The Court by Montgomery, /. * * * The defendants con- 
 tended that the court of chancery has no jurisdiction to set aside 
 an attachment at the suit of an assignee for the benefit of creditors. 
 * * * [*i5o] It is settled that a subsequent attaching creditor 
 may have relief in equity against an unauthorized attachment by 
 another. Hale v. Chandler, 3 Mich. 531 ; Hinchnian v. Town, 10 
 Id. 508 ; Edson v. Cnmings, 52 Id. 52. And we are convinced that 
 an assignee for general creditors should have the same remedy. 
 Any other rule would result in this : That property seized by an 
 unauthorized attachment may be reached by a subsequent attach- 
 ing creditor, but it cannot be distributed pro rata among all credi- 
 tors. It is suggested that the assignee has the right to intervene 
 in the suit at law, but the contrary was held in Gott v. Hoschna, 
 57 Mich. 413. See, also, Rozve v. Kellogg, 54 Mich. 206. 
 
 Numerous objections are made to the regularity of the attach- 
 ment proceedings. 
 
 The affidavits, after stating that defendant is justly indebted 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 169 
 
 to the plaintiff upon contract, etc., each state that the defendant 
 fraudulently contracted the debt or incurred the obligation respect- 
 ing which the suit is brought, using the language of the statute. 
 It is contended that the use of the disjunctive "or" renders the affi- 
 davit invalid. We hold the affidavit sufficient in this respect. The 
 incurring of an obligation under the statute can be nothing other 
 than contracting an indebtedness, in a case [*/j?i] where the suit 
 is brought, as it must be under the statute, upon contract, and 
 where the affidavit shows that it is brought upon contract. If the 
 defendant incurred an obligation, it was an obligation to pay money. 
 Each phrase expresses the same thing in a different way. The dis- 
 tinction between the cases where the use of the disjunctive renders 
 the affidavit invalid and those in which it does not is well stated in 
 Drake on Attachments, at section 102: "Where the disjunctive 
 'or' is used, not to connect two distinct facts of different natures, 
 but to characterize and include two or more phases of the same 
 fact, attended with the same results, the construction just men- 
 tioned (that is, rendering the affidavit void for uncertainty) would 
 be inapplicable." See, also, cases cited in note, and Wap. Attachm. 
 p. 98. 
 
 It is suggested that an expression in one of the affidavits, stat- 
 ing that the debt is due to plaintiffs from defendant "upon express 
 contract and implied contract,'' is as indefinite as the use of the 
 word "or" would be. We do not see how this can be maintained. 
 The statement shows affirmatively the indebtedness, and that the 
 same is due upon express and upon implied contract. The ques- 
 tion is ruled by Buehler v. De Lemos, 84 Mich. 554. * * * [*J5^] 
 
 * :|: * 
 
 The next question was whether there were grounds for 
 attachment. We think there was sufficient to show that the indebt- 
 edness was fraudulently contracted. It sufficiently appears that 
 Dun's reports were based upon the sworn reports of the company 
 to the secretary of state; that both the plaintiffs in attachment 
 extended credit upon the strength of these reports ; and we are sat- 
 isfied that these statements of the company were false, and could 
 have been made with no other purpose than that of establishing a 
 false credit. * * * [*r.?5] * * * 
 
170 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 It is contended by the complainants that the defendants, by 
 including a demand not due, debarred themselves from priority as 
 to all of their demand. There is nothing to indicate any fraudulent 
 intent on the part of the plaintiffs in attachment in averring the 
 amount of their claims. There was certainly no collusion between 
 them and the debtor. We think, under the circumstances, the 
 question is ruled by Hinchinaii v. Town, lo Mich. 508. See, also, 
 Dawson v. Brozvn, 12 Gill & J. (Md.) 53; Boarman v. Patterson, 
 I Gill (Md.) 372; and Gross v. Goldsmith, 4 Mackey (D. C.) 126. 
 It would render proceedings in attachment very precarious if it 
 should be held that, in averring the amount due, the entire attach- 
 ment should fail if, upon a subsequent trial of the question of fact, 
 it should be determined, either as [*IJ4] a matter of law or a mat- 
 ter of fact, that the plaintiff in attachment was mistaken. 
 
 The decree of the court below will in each case be modified. 
 The plaintiffs in attachment will be declared entitled to a lien under 
 their attachment. * * * 
 
 JACKSON V. BURKE. 
 SI Tennessee (4 Heiskell) 610. (1871) 
 
 Ground for Attachment — Disposing of Property — Allegation and Proof. 
 
 Bill quia timet by J. A. Jackson against Jas. M. Burke, accom- 
 panied by an attachment. From a decree discharging the attach- 
 ment complainant appeals. AfHrmed. 
 
 R. P Rains, for complainant. 
 
 McDearmon, for defendant. 
 
 The Court by Sneed, J. * * * The grounds upon which the 
 complainant asked the attachment are set forth in the bill as fol- 
 lows, after stating that since the complainant became so bound 
 [*(5ii'] as surety, he, "the defendant, has become dissipated, care- 
 less, almost an entire sot — has become otherwise greatly in debt, 
 and is becoming daily more so, produced by his daily dissipated 
 habits, and is now utterly insolvent: he charges that he has rea- 
 sons to believe, and does believe, that he, the defendant, will con- 
 vey and dispose of his groceries and his articles in his said gro- 
 cery, in order to defraud his creditors.'' 
 
 Although the attachment laws are to be liberally construed. 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 171 
 
 SO far as they regard the application of the remedy, yet so far as 
 they prescribe the causes for which an attachment may issue, no 
 material departure from the specific requirements of the statute 
 has ever been tolerated by this court. The remedy is in deroga- 
 tion of the common law — harsh and summary in its operation, and 
 very liable to be used as an instrument of injustice and oppression. 
 It was intended as a means of counteracting the devices and ma- 
 chinations of fraud and dishonesty, and in the line of its legiti- 
 male mission it is, and it should be, liberally construed and en- 
 forced. It was never intended that a debtor pursuing his ordi- 
 nary avocation, however improvident or thriftless he might be, 
 should have his property seized by attachment, unless he had 
 placed himself beyond all doubt within the provision and meaning 
 of the statute. And even where a clear case is made, by afihdavit, 
 if the defendant take issue and traverse the grounds alleged in the 
 affidavit, the burden of proving their verity lies upon the com- 
 plainant. Nor is the phraseology used in [*(5/j] prescribing the 
 various grounds upon which this remedy is allowed, of uncertain 
 or doubtful construction. The words are of the plainest import, 
 and admit of but one interpretation. 
 
 The bill in this case cannot be sustained as an attachment bill, 
 because neither one of the grounds which the statute prescribes is 
 alleged in the bill. The words that "the complainant believes and 
 has reason to believe that the defendant will convey and dispose 
 of his groceries and his articles in said grocery, in order to de- 
 fraud his creditors," do not import that he is about fraudulently 
 to dispose of his property. The affidavit must show that the de- 
 fendant has fraudulently disposed of his property, or that he is 
 about to do so. These words about fraudulently to dispose of his 
 property, import an exigency by which the creditor's debt is in 
 peril of immediate loss unless this extraordinary remedy is award- 
 ed to him. Not an act which may peradventure be done at some 
 future time, but a fraudulent act on the very eve of consummation.^ 
 The mere opinion of the complainant that the defendant will do a 
 fraudulent act, does not import that he is about to do it — or that 
 the act is about to be done — but that it will be done at some future 
 . and indefinite day. The law requires the allegation of an act, not 
 
172 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 an intent — an act which though not yet consummated, is presently 
 to be done. We do not say that some form of expression might 
 not be adopted which would be equivalent to charging in the words 
 of the statute — but it is safe to give the [*6i4] very words of the 
 statute, as the meaning of those words is unmistakable. The de- 
 fendant has a right to a specific charge, that he may have an op- 
 portunity to traverse it. If it be charged that he is about to do an 
 act, he can take issue upon the charge and make his defense ac- 
 cordingly. But if it be charged that he will do it, upon the defend- 
 ant's taking issue, how could the plaintiff, upon whom the burden 
 of proving it lies, establish such a fact? The defendant would 
 scarcely be called upon to defend against the mere contingencies' 
 
 and eventualities of the future. * * * 
 
 The decree is affirmed. 
 
 ORDENSTEIN v. BONES. 
 — Arizona Ter. — , 12 Pac. 614. (1887) 
 
 Character of Demand — Contracted or Payable in State — Effect of Ac- 
 knowledgement. 
 
 Attachment by Ordenstein against Bones and his partner. 
 From judgment dissolving the attachment plaintiff appeals- 
 Affirmed. 
 
 Hcrndon & Hawfzins and E. M. Sanford, for appellants. 
 
 Rush Wells and Howard, for appellees. 
 
 The Court by Barnes, J. The statute (Comp. Laws, 2257)' 
 authorizes the issuing of an attachment writ where plaintiff sues 
 to recover "'an indebtedness upon a contract, expressed or implied, 
 for the direct payment of money, and that such contract was 
 made or is payable in this territory." Plaintiff in this case was a 
 merchant doing business in California, and sold goods to defend- 
 ants, who were living in this territory. Tt is admitted that sucb 
 sale of goods was made in California, and that such contract 
 would not support an attachment writ. After the sale was made^ 
 however, defendants, when pressed for payment, and being unable 
 to pay then, were asked to acknowledge the debt, and did so in 
 the following words, in writing : 
 
ON WHAT DEMANDS THE PROCESSES MAV ISSUE. 173 
 
 Prescott, November i6, 1885. 
 "The above balance, fourteen hundred and ninety-three 
 96-100 dollars, due Ordenstein & Co., is correct. 
 
 Bones & Spenser." 
 
 This was written on an account for goods sold, at the place of 
 business of defendants, in Prescott, Arizona. This writing is 
 made the basis of this suit, and an attachment writ was issued on 
 the ground that this latter writing is a contract made in this terri- 
 tory, and payable here. 
 
 We have been referred to many cases tending to show that an 
 account stated was a new contract at common law, and that the 
 above writing creates an account stated. At common law, when 
 an amount due on an open account was agreed upon, then the law 
 implied a promise to pay that particular amount. So, when goods 
 were sold and delivered, the law implies a contract to pay the price 
 for them. It is insisted that, being an account stated, it became 
 an implied contract to pay, and, made in this territory, brings the 
 action within the attachment laws. While much has been said and 
 written by way of argument which sustains this view, yet a care- 
 ful analysis of an account stated at common law leads to the con- 
 clusion that it amounts to a solemn admission of the fact of in- 
 debtedness, which, if proved, makes unnecessary other evidence 
 of the indebtedness, rather than that it is a new contract. 
 
 It is said in Chace v. Trafford, 116 Mass. 532: "An account 
 stated is an acknowledgment of the existing condition of liability 
 between the parties. From it the law implies a promise to pay 
 whatever balance is thus acknowledged to be due. It thereby be- 
 comes a new and unpaid cause of action, so far as that a recovery 
 may be had upon it without setting forth or proving the separate 
 items of liability from which the balance results." This case, 
 therefore, treats it rather as an admission of a fact than as a con- 
 tract, and the case decides that the statute of limitations begins to 
 run from the date of the last item of the account. The account 
 stated is not a new promise, to bring an account within the statute 
 
174 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 of limitations. To the same effect is White v. Campbell, 25 Mich, 
 
 463- 
 
 If an account stated is not a new promise, to bring an open 
 account withm the statute of limitations, a fortiori, it is not a con- 
 tract made in this territory, for goods sold out of the territory, to- 
 sustain an attachment. This is a summary remedy, and a plaintiff^ 
 must clearly come within its provisions to invoke its powers. Eck 
 V. Hoffman, 55 Cal. 502 ; Dalton v. Shelton, 3 Cal. 206. By the 
 paper sued on in this case the defendants simply say : "The above 
 balance due is correct." This is a solemn admission of indebted- 
 ness, which could only be questioned for mistake or fraud ; but it 
 is simply an admission by defendants that they owe plaintiff a cer- 
 tain amount for the goods sold as stated in the account. The par- 
 ties intended no more than that. Gooding v. Hingston, 20 Mich. 
 441. There is a broad distinction between an "admission" and a 
 "contract." Nothing short of a contract made or payable in this 
 territory gives the right to a writ of attachment. We do not think 
 this paper is more than an admission of indebtedness. It does not 
 change the nature of the old contract, or make a new one in this 
 territory, but it dispenses with proof of the account. 
 
 The judgment of the district court dissolving the attachment 
 is affirmed. 
 
 "It is argued that, although the contract was not made nor by its 
 terms payable in this state, yet because the defendants reside here and 
 the action Is transitory, that therefore It Is payable here and entitled 
 to the attachment." Held contra. Dulton v. Shelton, 3 Cal. 206. Tra- 
 bant V. Rummell, 14 Ore. 17, 12, Pac. 56. See also in Matter of Fitch, 
 2 Wend. (N. Y.) 298. 
 
 When not expressly so restricted, attachment and garnishment are 
 available though the debt sued on was contracted and payable else- 
 where (Fisher v. Consequa, 2 Wash. C. C. 382, Fed. Cas. No. 4816), and 
 both parties are non-residents of the state (Newland v. Circuit Judge, 
 85 Mich. 151, 48 N. W. 544; Sheldon v. Blauvelt, 29, S. C. 453, 7 S. B. 593, 
 1 L. R. A. 685; Mitchell v. Shook, 72 111. 492), and the ground of attach- 
 ment Is that defendant is a non-resident. Payne v. First Nat. Bank, 
 16 Kan. 147. 
 
ON WHAT DEMANDS THE PROCESSES MAY ISSUE. 175 
 
 WACHTER V. FAMACHON. 
 62 Wis. 117, 22 N. W. 160. (1885) 
 
 Ground for Attachment — Fraudulently Incurring Obligation — Obliga- 
 tion Defined. 
 
 Attachment by Wachter against Famachon. From a judg- 
 ment dismissing the attachment plaintiff appeals. Reversed. 
 
 The. trial was on a traverse of the attachment affidavit, which 
 charged, as ground for attachment, that defendant fraudulently 
 contracted the debt and had assigned, or was about to assign, his 
 property to defraud his creditors. 
 
 Thomas & Fuller, for appellant. 
 
 Wilson & Provis and W. H. Evans, for appellee. 
 
 The Court by Orton, J. * * ''■ From a careful examina- 
 tion and consideration of the evidence we are satisfied that as to 
 the first cause assigned in the affidavits, the court erred, and ought 
 to have found that the obligations were fraudulently incurred, and 
 that as to the second cause the court found correctly. Either of 
 these causes would sustain the attachments. 
 
 On the first ground, and as to the first above case, the evi- 
 dence was substantially as follows : The defendant had been long 
 engaged in the business of merchandising, milling, etc., and had 
 apparently been doing a very large and successful business, and 
 had enjoyed the general confidence and [*JI9] large credits, and 
 was in possession of a large amount of property. He had given 
 the plaintiff his note for $i,ooo, which, on January 3, 1882, was 
 past due, and the plaintiff wanted his money. The defendant 
 desired to procure an extension of the time of payment, and to 
 have the old note canceled, and to give a new note for the amount, 
 to be payable one year from date. The plaintiff demanded a state- 
 ment of his circumstances before entering into this new arrange- 
 ment, and the defendant represented that he was perfectly good, 
 and that his property was clear from incumbrance, with no mort- 
 gage or anything upon it ; that he did not owe a great deal ; and 
 that the plaintiff's debt was as large as any he had. The defend- 
 ant admits that at that time he owed a debt to one Tilmont of from 
 $17,000 to $20,000 ; that he owed in all the sum of from $60,000 to 
 $70,000; and that his property was not worth to exceed $40,000. 
 
176 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 * •■" * The plaintiff was wholly ignorant of these facts, and sup- 
 posed from the statement of the defendant that he was in pros- 
 perous circumstances and solvent, and that he was not in debt to a 
 very large amount; and, relying upon [*/^o] said statements, he 
 consented to cancel the old note and take a new one for the same 
 amount, payable one year from that date. The plaintiff testified 
 that he would not have taken such new note, and so extended the 
 time, had he not relied upon said statements, in ignorance of the 
 facts. * * * 
 
 It was intimated on the argument that the learned judge 
 before whom this case was tried did not doubt that the new credits 
 had been obtained, and that the plaintiffs has been induced to take 
 the new notes, by fraud, but held that by this transaction no new 
 obligation had been incurred or any debt contracted. It is quite 
 clear that the giving of the new note was not contracting a new 
 debt. The debt was the [*i^j] $ 1,000 in the first case and the 
 $S,ooo in the other, the same in the new as in the old notes. But 
 it is equally clear that a new contract can be made concerning the 
 same debt. The new notes were new contracts of different terms 
 from the old contracts. By the first contracts the debt was due, 
 and by the new ones the debt is not due, and will not be for a con- 
 siderable time to come, or until the time stipulated in the new 
 contracts. Was the defendant bound by these new contracts or 
 new notes ? If so, he was obligated; for that means strictly, and in 
 common parlance, to be bound. The obligation of the old notes 
 was that they should be paid immediately or at once, for they were 
 due. The obligation of the new ones is that they shall be paid in 
 one year, or the longer time stipulated. Both parties were bound 
 by the new notes. The plaintiffs could not enforce their payment 
 until the time stipulated, and the defendant was under an obliga- 
 tion to pay them at maturity, and not before * * * [*I24] 
 
 By the Court: The orders of the circuit court are reversed, 
 and the causes remanded for further proceedings according to 
 law. 
 
AT WHAT STAGE OF THE CASE THEY MAY ISSUE. 177 
 
 As to what judgments executions may issue on, re-read : Jas- 
 per V. Schlessinger, ante, 3; Brightman v. Merriwether, ante, 8; 
 Locke V. Hubbard, ante, 9 ; Fennoyer v. Neff, ante, 48 ; and Rob- 
 erts V. Connellee, ante, 78. 
 
 3. AT WHAT STAGE OF THE CASE THE WRITS MAY BE ISSUED. 
 
 a. Attachments. 
 
 HARGAN V. BURCH. 
 8 Iowa 309. (1859) 
 
 How Early Process May Issue — Commencement of Action Defined — At- 
 tachment before Service on Defendant — Sunday Process. 
 
 Action commenced by attachment on open account. From 
 judgment for plaintiff defendant brings error. Affirmed. 
 
 {*Si^\ T^^ Court by Woodward, J. The defendant's motion 
 to quash the attachment was overruled, which is the first error 
 assigned. We do not think the objection substantial. Section 
 1717 of the Code, directs the sheriff to note on the original notice 
 the time of its receipt, and § 1663 enacts that the delivery of the 
 notice to the sheriff", with the intent that it be served immediately, 
 is a commencement of the action. But it will be noticed that this 
 latter provision, is contained in the chapter, 99, which relates to 
 the limitation of actions. The intention here is, that when the pre- 
 cise time of the commencement of an action becomes material, the 
 fact referred to in § 1663, is made to define that time. The filing 
 the petition, or the issuing the notice, might have been made the 
 point, but these might take place without an intent to prosecute the 
 action immediately, so that delivering the notice with intent to be 
 served, is made the time to which to reckon, especially in the ques- 
 tion of limitation. The action may, however, be fairly considered 
 as begun, for other purposes, and, perhaps, to all common intents 
 and purposes, when the petition is filed. At least, it seems con- 
 sistent and reasonable to consider it so far commenced, as that 
 part of its own process — such as a writ of attachment — ^may issue 
 even before the notice. There is no harm, no wrong, effected by 
 
 this. In truth there is no possible reason why the attachment 
 12 
 
178 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 should not issue before the notice, save the provision that the at- 
 tachment may issue at the commencement, or during the progress 
 of a suit. Section 1846. And the force of this depends upon the 
 construction to be given it. If sections 1663 and 1846 are to 
 receive a rigid construction, so that there is no "commencement" 
 of an action in any sense, nor to any purpose, but in the deHvery 
 of the notice, virith intent to be served, then the writ of attach- 
 ment cannot issue before the notice, and in the case at bar, it is 
 irregular, and rriust be quashed. But such a construction does 
 not appear to us necessary, and the attachment was well enough 
 issued after the petition was filed, and before the notice. 1*312] 
 This course would compel the plaintiff to serve his notice before 
 the next term of the court ; for, if this should not be done, the at- 
 tachment would then be quashed, of course, and the party suing 
 out would render himself liable on his bond for suing out and levy- 
 ing an attachment without prosecuting an action. 
 
 We do not intend to intimate here that there may be any un- 
 necessary delay, but the several steps should appear to be parts of 
 the same transaction and proceedings. 
 
 In the present case, there is another fact which strengthens 
 the position above taken. The attachment was sued on Sunday, 
 and the affidavit required by statute in such case is made. Those 
 things which were requisite for obtaining the attachment on that 
 day were done, and none others, the party probably supposing that 
 the issuance of process, or notice, would be illegal. This was is- 
 sued, and put into the officer's hands the next day, which was as 
 soon as was practicable. The case stands upon its own facts, and 
 can scarcely serve as a precedent for one in other circumstances. 
 
 * * * AMrmed. 
 
 "No court can be opened, nor any judicial business transacted on 
 Sunday, except: * * * 4^ and such other acts as are provided by 
 law." [Iowa Stat. Rev. 1860, § 2686.] 
 
 "Where the petition states, in addition to the other facts required, 
 that the plaintiff will lose his claim unless the attachment issues and 
 is served on Sunday, it may be issued and served on that day." [Ch. 
 14, 10 Gen. Assembly; Code, 1873, § 2952.] 
 
 This case is cited and followed in the following cases similar to it 
 except that the attachment was not on Sunday. Bell v. Olmstead, 18 
 Wis. 75; Hoagland v. Wilcox, 42 Neb. 138, 60 N. W. 376. See also to 
 the same effect Schuster v. Rader, 13 Colo. 329, 22 Pac. 505; Cosh Mur- 
 
AT WHAT STAGE OF THE CASE THEY MAY ISSUE. 179 
 
 ray Co. v. Tuttich, 10 Wash. 449, 38 Pac. 1134; McDonald v. Alanson 
 Mfg. Co., 107 Mich. 10, 64 N. W. 730; Webb v. Bailey, 54 N. Y. 164; 
 Blackman v. Wheaton, 13 Minn. 326, Gil. 299. "The chief utility of an 
 attachment consists in the writ being served in time to prevent a 
 delinquent debtor from placing his property beyond the reach of the 
 creditor. It would be unfortunate, indeed, if the writ could not issue 
 until the debtor should have notice of the proceedings by service of 
 summons." Schuster v. Rader, supra. 
 
 PRACHT v. PISTER. 
 30 Kansas s68. (1883) 
 
 How Late Attachment May Issue — Effect of Late Attachment — Special 
 Execution — Levy Defined — When Essential — Collateral Attack. 
 
 Action by Frederick Pracht against John Pister for posses- 
 sion of certain wheat sold plaintiff on process issued on judgment 
 in favor of plaintiff against defendant. From judgment for de- 
 fendant plaintiff brings error. Reversed. 
 
 Doster & Bogle, for plaintiff. 
 
 /. Hudson Morse, for defendant. 
 
 The Court by Brewer, J. On November 21, 1881, the 
 firm of Pracht, Schutz & Co. recovered a judgment before a 
 justice of the peace against the defendant for the sum of $260.20. 
 Of the validity of this judgment there is no question, in tact, the 
 judgment was rendered upon the personal admission of the de- 
 fendant. Thereafter, without issuing execution and for some 
 inexplicable reason, the plaintiffs filed an affidavit for an order of 
 attachment. The order of attachment was issued and levied upon 
 certain personal property, to wit, fifty acres of growing wheat ; and 
 upon the determination of this attachment proceeding an order of 
 sale was issued commanding the constable to satisfy the judgment 
 by a sale of the property attached. Under this writ, it was sold to 
 one of the plaintiffs in the judgment, and in the presence of and 
 without any objection from the defendant. 
 
 The question now is, whether in a collateral proceeding the 
 validity of this sale can be challenged by the defendant. We have 
 in this state no form of execution prescribed by statute. [*57^] 
 The statute (Comp. Laws of 1879, ch. 81, § 139), simply directs 
 what the execution shall contain, and the order of sale contains all 
 the requisites of an execution prescribed by said section, except in 
 this respect : that section provides that the process direct the offi- 
 
180 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 cer to collect the amount of the judgment out of the personal prop- 
 erty of the debtor. This order of sale, reciting a levy of an order 
 of attachment upon the specific property, commands the officer out 
 of said goods to cause the said judgment to be satisfied. In other 
 words, instead of being a general execution commanding the offi- 
 cer to satisfy the judgment out of any personal property of the de- 
 fendant, it was a special order commanding him to satisfy it out of 
 a certain named property. Upon the process and in the presence of 
 defendant the property was sold. No motion was made to set aside 
 the process or the sale ; in fact there was no direct attack upon the 
 proceedings. The question is whether those proceedings were so 
 irregular and defective that they must be adjudged void, and 
 therefore open to collateral attack. It is conceded that the attach- 
 ment proceedings amounted to nothing. The statute makes no 
 provision for an attachment after judgment, nor indeed in such 
 case is there any need of such proceedings. The only purpose of 
 an attachment is to seize and hold the property until the claim of 
 the plaintiff can be adjudicated. After judgment, an execution 
 will seize anything that an attachment order would ; so that the lat- 
 ter is unnecessary. Being therefore unauthorized by statute, and 
 unnecessary, it may be disregarded. And the question really comes 
 down to this : If the justice issues a writ commanding the officer 
 • to satisfy the judgment out of certain personal property, when he 
 ought to have issued a writ commanding him to satisfy it out of 
 anv personal property, is this writ and a sale under it void ? We 
 think not. The greater includes the less. The power to command 
 the seizure and sale of any personal property includes the power 
 to seize and sell certain specific property — Swiggart v. Harber, 5 
 .III. (4 Scam.) 364; Rockwell v. Jones, 21 111. 279 ; Cornell v. Doo- 
 Jittle, 2 G.Greene (Iowa) 385; [*57i] Paine v.Mooreland,!^ Ohio 
 ,436; Cooley V. Brayton, 16 Iowa, 10; Porter v. Haskell, 11 Me. 
 177. Doubtless such an order is irregular, and could be set aside 
 .{Jn motion; but if the defendant makes no objection, permits the; 
 .sale under it, he should not be permitted thereafter to object that 
 it is void. The defect is not a want of power, but a mere irregu- 
 larity in proceeding; and in collateral proceedings mere irregular- 
 ities are not sufficient to defeat the title. Paine v. Spratley^ 5 Kas. 
 525 ; Freeman on Executions, § 343, and cases cited in the note. 
 
AT WHAT STAGE OF THE CASE THEY MAY ISSUE. 181 
 
 But it is further objected, that under this order of sale the 
 officer would make no levy; that the levy under the order of at- 
 tachment was a nullity, and that a levy is indispensable to a valid 
 sale. A levy means this and nothiog more : the taking possession 
 of property by the officer. When there is possession, absolute or 
 constructive, there is a levy, and in any collateral proceeding it is 
 enough that there was such possession. Here the only possession 
 which could have been taken of the property was in fact taken 
 under the order of sale. Now although such taking of possession 
 was unauthorized, yet the officer could do no more if he had been 
 authorized ; and having taken such possession, and being in such 
 possession, he made all the levy that was necessary to uphold his 
 sale. He could have taken no further possession if a general exe- 
 cution had been placed in his hands. Hence we think that all the 
 levy that was indispensable was in fact made. Freeman on 
 Executions, § 274. 
 
 We therefore conclude that notwithstanding the defects, they 
 were not sufficient to invalidate the proceedings as against a col- 
 lateral attack. The judgment of the district court must be re- 
 versed, and the case remanded for a new trial. 
 
 All the justices concurring. 
 
 Reversed. 
 
 b. Executions. 
 
 As to issuing execution on the judgment before the record 
 is made up or upon the order for judgment, prepare again upon 
 Jasper v. Schlessinger and Mayer, ante, 3 ; Brightman & Co. v. 
 Merrkvether, ante, 8 ; and Locke v. Hubbard, ante, 9. 
 
 BACON V. CROPSEY. 
 7 New York (3 Selden) 195. (1852) 
 
 How Early Execution may Issue — Before Stay Expires — How Objection 
 May be Made and by Whom. 
 
 Appeal by defendant from judgment of the supreme court 
 
 in favor of plaintiff. Affirmed. 
 
 G. Stow, for appellant. 
 
 /. Romeyn, for respondents. 
 
182 
 
 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 The Court by Jewett, J. The plaintiff brought this suit 
 against the defendant for making a false return, as sheriff of the 
 county of Rensselaer, to a writ of execution issued out of the court 
 of common pleas of that cou;jty in his favor against the property 
 of H. A. & G. R. Benton, to whom it was directed and delivered 
 to be executed. The complaint alleges, that on the twenty-fifth day 
 of June, 1847, the plaintiff recovered in the late court of common 
 pleas of the county of Rensselaer a judgment against H. A. & 
 G. R. Benton in debt for $4,000, and $32.72 damages and costs, 
 and upon the same day issued and delivered to the defendant, then 
 being sheriff of the county, a writ of execution for the collection 
 of $2,032.72, with interest from that day, by virtue of which the 
 defendant on the same day levied upon the property of the defend- 
 ant in the judgment, of sufficient value to satisfy it, but afterwards 
 returned it, certifying that he could not find any property of the 
 defendant to satisfy it ; by which means, it is alleged, that the 
 plaintiff was prevented from enforcing the payment or collection 
 of $1,542.93 thereof, with interest thereon from the eighth day of 
 September, 1847, ^"d which the plaintiff claimed to recover of the 
 defendant. * * * 1*198] * * * 
 
 The defence set up by the answer is, first, that the execution 
 was issued within thirty days after the rendition of the judgment 
 without the consent of the defendant therein, and without the au- 
 thority of law ; second, that there was nothing due from the de- 
 fendant at the time of issuing the execution, nor was the [*jpp] 
 sum of $1,542.93 then due to the plaintiff as claimed by him; and, 
 third, that the plaintiff had received promissory notes and bills of 
 exchange and demands against third persons to the amount of 
 $1,000, which the defendant claimed should be set off against the 
 plaintiff's demand. 
 
 As to the first branch of the defence, it appeared by the com- 
 plaint that the execution was issued within thirty days after the 
 recovery of the judgment. The answer sets up that it was ille- 
 gally issued because the same was so issued without the consent 
 of the defendant therein. The reply controverts this allegation; 
 it says it was legally issued, with the consent of the defendant 
 therein. The judge decided that the plaintiff was not bound to 
 
AT WHAT STAGE OF THE CASE THEY MAY ISSUE. 183 
 
 prove that the defendant in the execution consented to its being- 
 issued within the thirty days. In that there was no error, for 
 until set aside, although issued without the defendant's consent, 
 the process was valid, and no one could take advantage of such 
 an irregularity but the defendant in the execution. The judge 
 was clearly right in his decision that the defendant was bound to 
 execute it and could not take advantage of the fact in his defence 
 that it was issued within the thirty days. Jones v. Cook, i Cow. 
 309; Ross V. Luther, 4 Cow. 158; The Ontario Bank v. Hallett, 
 8 Cow. 192 ; Kimball v. Hunger, 2 Hill, 364 ; Green v. Burnham, 
 3 Sand. Ch. no; Pierce v. Alsop, 3 Barbour Ch. 184; Berry v. 
 Riley, 2 Barb. Sup. C. R. 307; Williams v. Hogeboom, 8 Paige, 
 469; Parmelee v. Hitchcock, 12 Wend. 96; Stone v. Green, 3 Hill, 
 469 ; Rider v. Mason, 4 Sand. Ch. 351. 
 
 The distinction is between void and voidable process ; the 
 latter is a justification to the officer, until it is set aside by the 
 party. One strong reason why the sheriff shall not take advan- 
 tage of the error in issuing the process is, that for aught that ap- 
 pears the party does not wish to avail himself of it. Ames v. 
 Webbers, 8 Wendell, 545. But process which is void, the officer 
 is under no obligation to execute, and he may in an action brought 
 against him for refusing to execute it, set up its invalidity. Cor- 
 nell V. Barnes, 7 Hill, 35. [*20o] 
 
 I think the judge was right in holding that the defendant 
 could not be permitted in order to reduce damages, to show that 
 the execution directed the collection of a greater sum than was 
 due to the plaintiff. It was for a sum less than the amount of the 
 recovery, and the complaint alleges that the defendant levied on 
 property of the defendant by virtue of it, sufficient in value to sat- 
 isfy that amount, which fact for the purposes of this suit we have 
 seen is admitted to be true. Clearly that sum with the interest 
 must be taken as the measure of damages which the plaintiff sus- 
 tained by the false return made by the defendant. The exclusion 
 of the evidence offered by the defendant to show that the execu- 
 tion was issued in violation of a stipulation given by the plaintiff 
 to the defendant in the execution, and that they made an assign- 
 ment of all their property for the benefit of their creditors before 
 
184 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 the expiration of thirty days after the judgment was docketed, was 
 right. In the first place, if this execution was issued in violation 
 of a stipulation between the parties to it, it was merely an irregu- 
 larity of which only the defendant in the execution could take ad- 
 vantage ; and besides this branch of defence is not set up in the de- 
 fendant's answer. I think this judgment should be affirmed. 
 
 Gardiner, Johnson, Edmonds and Wells, J J., concurred. 
 
 Ruggles, Ch. J., and Watson, J., did not hear the argument, 
 and Gridley, J., was absent at the decision. 
 
 Judgment affirmed. 
 
 This decision is supported by the decided weight of authority, 
 though in Massachusetts sale under an execution issued within the 
 prescribed time was held to confer no title. Penniman v. Cole, 8 Mete. 
 496; see also Briggs v. Wardell, 10 Mass. 356. An execution issued be- 
 fore a stay of execution is expired is irregular but not void, and its 
 validity cannot be questioned by another execution creditor. Stewart 
 V. Stocker, 13 S. & R. (Pa.) 199; compare Blaine v. Carter, 4 Cranch, 
 328, 333. Nor collaterally by the judgment debtor himself. Freeman on 
 Ex. §§ 25, 26. Another execution creditor cannot complain that the judg- 
 ment was not publicly read and signed in open court, as required by 
 statute before the execution issued. Jones v. Carnahan, 63 Ind. 229. 
 So of an execution on an award of arbitrators before the time for 
 the appeal expired; Wilkinson's Appeal, 65 Pa. St. 189; so of an exe- 
 cution issued against the estate of a deceased person within the pro- 
 hibited period. Carson v. Walker, 16 Mo. 68. 
 
 "If the proceedings on the judgment on which process is founded, 
 are merely erroneous and not void, the officer cannot, for that reason, 
 excuse himself for disobeying the precept, and the true reason I con- 
 ceive to be, that from very wise considerations the court will not thus 
 collaterally and incidentally correct errors. But on the other hand, if 
 it appears that the judgment is void it is otherwise." Albee v. Ward. 
 8 Mass. 86. 
 
 ABERCROMBIE'S ADM'R v. CHANDLER. 
 
 9 Alabama, 625. (1846) 
 
 Sheriffs — Liability for not Executing Writs — Payment as a Defense. 
 
 Motion to amerce Chandler, sheriff of Perry county, for not 
 
 executing a fieri facias. The sheriff suggested payment as an 
 
 excuse, and pleaded not guilty; to the plea Abercrombie joined 
 
 issue, and to the suggestion he demurred. The demurrer was 
 
 sustained, but judgment was given for the sheriff on the trial of the 
 
 issue to a jury. Abercrombie brings error. Reversed. 
 
 The Court by Ormond, J. The plea in this case, or replica- 
 tion to the suggestion, as it is called in the record, is clearly bad. 
 
AT WHAT STAGE OF THE CASE THEY MAY ISSUE. 185 
 
 The [*(5^5] duty of the sheriff is to execute all writs placed in 
 his hands, without inquiry into the regularity of the proceedings 
 on which they are founded. Although the process in his hands 
 be: voidable, or erroneous, he is nevertheless bound to execute it. 
 He is only excused from doing so, when the process is absolutely 
 void, as was the case in Holloway v. Johnson, 7 Ala. 660. Watson 
 on Sheriffs, 53 ; Watson v. Watson, 9 Conn. 141 ; Parmelee v. 
 Hitchcock, 12 Wendell (N. Y.) 96. 
 
 The facts in this case are, that the sheriff declines to levy, 
 and make the money upon an execution, which is regular upon 
 its face, and authorized by the judgment, and returns upon it, 
 that he has not made the money upon the writ according to its 
 mandate, because the judgment was paid and satisfied by the 
 defendant in execution, to the intestate of the plaintiffs, in his 
 lifetime. These facts constitute no justification whatsoever. If 
 the facts are as he supposes, if the judgment has been discharged 
 by payment, and no formal entry of satisfaction made upon the 
 record, he must nevertheless proceed to execute the writ. No 
 injury can accrue to the defendant in execution from this course. 
 If, in truth, the judgment has been paid off and discharged to 
 the intestate, and his representatives are now seeking to make the 
 money again, out of the defendant, a supersedeas will be granted 
 by the court out of which it issued ; and if the judgment has been 
 satisfied, satisfaction will, on motion, be entered, and the execu- 
 tion be quashed. 
 
 To permit the sheriff to raise this question, and to refuse to 
 execute a fieri facias, because the judgment has been satisfied, is 
 wholly unwarranted. His duty is to execute the writ, if the court 
 had jurisdiction to render the judgment, without speculating 
 about consequences, with which he has no concern, and agamst 
 which, to insure the execution of the writ, the law has clothed 
 him with impunity. This return would open an entirely new 
 mine of litigation, not only unexplored by our ancestors, but 
 unknown to them, of which the least evil would be the endless 
 litigation it would produce. If such a return as this could be tol- 
 erated, the execution, instead of being the end of the law, would 
 be merely the beginning of the real litigation. [*626] 
 
 Let the judgment be reversed and the cause remanded. 
 
186 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 STANLEY V. NUTTER. 
 16 New Hampshire 22. (1844) 
 
 Trover for the value of property levied by defendant as dep- 
 uty sheriff on an execution on a judgment against the present 
 plaintiff and one Wallace, after defendant herein knew that Wal- 
 lace had paid the amount of the judgment to the creditor's attor- 
 ney to prevent a sale of his own property, and had the defendant 
 herein ordered to levy on this property to enforce contribution. 
 Verdict and judgment for plaintiff. Defendant brings error. 
 Affirmed. 
 
 The Court by Woods, J. * * * The amount of the execu- 
 tion was paid, and the execution thereby extinguished, and 
 discharged, and rendered void, prior to the levy upon the 
 property. Was the officer liable for the sale of the prop- 
 erty by virtue of it, or was he protected by it? The principle 
 well recognized in the decisions is, that when the process is void, 
 and the officer is informed of it by the process itself, it will 
 not protect him in its execution or service; so, also, when it is 
 void from want of jurisdiction over the cause in the tribunal issu- 
 ing it. In principle or in reason, can it make any difference that 
 he is informed and receives the notice that the process is void? 
 We think not; and, accordingly, that an execution discharged by 
 payment known to an officer, cannot protect him against liabilities 
 for acts done in virtue or under color of it, whether that knowl- 
 edge be disclosed by the process itself, or otherwise acquired. 
 There must be judgment on the verdict. 
 
 WILLS V. CHANDLER. 
 I McCrary (United States Circuit Court) 276, 2 Fed. Rep. 273. (1880) 
 
 Sheriff's Deed, Validity, Saie on Execution after Satisfaction of Judg- 
 ment — Power of Judgment Creditor to Discharge Land from 
 Judgment Lien without Payment of Officer's Fees — 
 Who IVIay Have Execution Issued. 
 
 Bill in equity by Wills against Chandler and Paxton to quiet 
 title to certain lands in Omaha. Decree for plaintiff. 
 
 Nuckolls, a judgment debtor, sold land subject to the judg- 
 ment, and the purchaser, Kellogg, thereupon paid the amount 
 
AT WHAT STAGE OF THE CASE THEY MAY ISSUE. 187 
 
 of the judgment to the judgment creditor's attorney, Meredith, 
 who thereupon gave him a receipt in full for the amount of the 
 judgment, interest and costs, each understanding that the other 
 was to pay the fees of the clerk of the court. The fees being paid 
 by neither, the clerk. Chandler, who was now out of office, pro- 
 cured an execution on the judgement from his successor, and had 
 the land sold thereon by the sheriff, and Chandler purchased it at 
 the sale. Wills claims by purchase from Kellogg, and Paxton 
 through Chandler and the deed executed to him by the sheriff, 
 
 Kennedy & Gilbert, for plaintiff. 
 
 G. W. Ambrose and /. M. Wool-worth, for defendants. 
 
 McCrary, Circuit Judge. * * * The validity of the 
 sheriff's sale, under which defendants claim, is attacked first upon 
 the ground that the judgment was satisfied by the plaintiff therein, 
 and that, therefore, the sale was void. The proof clearly shows 
 that the attorney for the plaintiff executed to Kellogg a receipt in 
 full for the judgment, interest and costs. This receipt may be ex- 
 plained by parol proof, and on explanation it is shown that the 
 •costs due Chandler, though receipted for, were not in fact paid. 
 It remains, however, clear from the evidence that Meredith and 
 Kellogg both intended that the receipt should satisfy the judgment 
 and remove the encumbrance, notwithstanding the non-payment 
 of Chandler's costs. Had they the power to accomplish this? I 
 think it clear, under the authorities, that in the absence of statu- 
 tory regulation only the plaintiff in a judgment, or his attorney 
 or agent, has the power either to satisfy it, or direct its enforce- 
 ment by execution. In this case Chandler (the clerk) was not 
 the plaintiff, nor was he a party to the judgment. There was, in 
 fact, no judgment for any particular sum as costs. 
 
 Johnson v. Anderson, 4 Wend. 474, is in point. That was, 
 like the present, a case where the judgment had been paid except 
 •certain costs, and the sheriffs to whom the costs were due under- 
 took to sell property on execution for the purpose of collecting 
 them. The court said: "It is not denied that the judgment was 
 satisfied before the sale (except as to the sheriff's fees on the exe- 
 •cution) by a settlement between the parties. ****** 
 The sheriff had no right to sell for the purpose of collecting his 
 
188 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS;. 
 
 fees after due notice of the settlement and discharge of the judg- 
 ment. The sheriff has no interest in the judgment which will 
 authorize him to interfere with or control any settlement or agree- 
 ment which the parties may think proper to make. His fees are 
 no part of the judgment. They are but an incident to it, and if the 
 judgment itself is satisfied or discharged he must look to the 
 plaintiff and his attorney for his fees. He cannot collect them 
 from defendant by a sale of his property." And it was held that 
 the purchaser at the sale in that case took nothing. To the same 
 effect see Lewis v. Phillips, ly Ind. io8, and Hampton Ex parte, 
 2 Gr. (Iowa), 137. 
 
 In the absence of statutory regulation the clerk has no author- 
 ity to issue execution without the direction of the plaintiff or his- 
 attorney. Herman on Executions, 66. This must be upon the- 
 ground that the. clerk is not a party to the judgment, and has no- 
 control over it. 
 
 It is said in answer to these suggestions that Chandler ob- 
 tained avtthority from the attorney of the judgment plaintiff tO' 
 issue the execution. If this be so, it does not help the defence, 
 because that attorney had previously given Kellogg a satisfaction 
 in full of the judgment, upon which satisfaction the latter was 
 relying for the security of his title. To say that the attorney for 
 the judgment plaintiff could execute a valid release to Kellogg, 
 and then, without notice to him, cancel it, and authorize Chandler 
 to issue execution and sell Kellogg's land, would be to sanction a 
 gross fraud. 
 
 In selling property under an execution a sheriff acts by virtue 
 of a power, and if the power does not exist no title passes. Car- 
 penter V. Stillwell, II N. Y. (i Kernan), 61; Laval v. Rowley,. 
 17 Ind. 36. 
 
 My conclusion is that at the time of the settlement between 
 Kellogg and Meredith the latter, as agent for the plaintiff in the 
 judgment, intended to and did cancel and satisfy the judgment, 
 and remove the lien from the land in question. The judgment 
 being satisfied, the sale was void and no title passed. * * * 
 
 Decree for plaintiff in accordance ivith the prayer of the bill.. 
 
AT WHAT STAGE OF THE CASE THEY MAY ISSUE. 189 
 
 PARSONS V. GILL. 
 1 L. Raymond 695, 1 Comyns 117. (King's bench, 3 Will. 3, A. D. 1701.) 
 
 Mr. Broderick made a motion to refer the regularity of an 
 execution to be examined by the master, &c., alleging it to be 
 irregular for this, that the writ of execution bore teste of the first 
 day of Hilary term, returnable the Easter term following, and 
 the judgment was of Hilary term ; so that the writ of execution 
 might have been sued perhaps before the judgment given. Be- 
 sides, that the judgment was signed after the death of the defend- 
 ant, for the defendant died the first of April, and the judgment 
 was signed the second of April, which being before the essoin 
 day of Easter term, related to Hilary term ; and therefore alto- 
 gether irregular. But the motion was denied, because (Per 
 Curiam) the practice is always so, and well enough. 
 
 PEOPLE V. BRADLEY. 
 17 Illinois 485. (1856) 
 
 Execution — Deathi of Debtor — Effect — Importance of Time of Death. 
 
 The Court by Skinner, J. This was an action of debt against 
 Bradley and others, on the bond of Bradley as sheriff of Cook 
 county. The plaintiff assigned for breach of the conditions of 
 the bond, that Kelly and Blackburn, on the 30th day of October, 
 1854, in the Cook county court of common pleas, recovered a 
 judgment against one Harper, upon which judgment, execu- 
 tion on the same day issued against the goods and chattels of 
 Harper, and which execution was delivered to Bradley, as such 
 sheriff, to execute, on the 31st day of October, 1854; that Harper 
 had goods and chattels within said county, liable to be levied upon 
 and sold in satisfaction thereof, of sufficient value to satisfy the 
 same, and that Bradley refused to levy the execution of said 
 goods and chattels. The plea denies the averment that there were 
 goods and chattels of Harper liable to be levied upon and sold 
 under the execution. The cause was submitted to the court for 
 trial, upon an agreed state of facts, from which it appears, that 
 the execution issued and bore date the 30th day of October, 1854; 
 that Harper, the defendant in execution, died on the evening of 
 the same day; that the execution was delivered to Bradley to 
 
190 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 execute on the 31st day of the same month, and that he refused 
 to levy the same of the goods and chattels of which Harper died 
 possessed, on the ground that Harper was dead at the time the 
 execution came to his hands. 
 
 If the goods and chattels, of which Harper died possessed, 
 were liable to be levied upon and sold to satisfy an execution 
 against him issued before his death, but which was delivered to 
 Bradley to execute on the day after his death-, then the judgment 
 should have been for the plaintiff, otherwise for the defendants. 
 It seems that by the common law the goods of a defendant were 
 bound from the teste, that is, the date of the issuing of the execu- 
 tion ; and that although the defendant died after the teste, and 
 before the writ of execution came to the hands of the sheriff, it 
 might have been levied of the goods of the defendant at the teste 
 of the writ in the hands of third persons, or of the executor or 
 administrator. 4 Comyn's Digest, title "Execution,'" D. 2; Aud- 
 ley V. Halsey, Cro. Car. 149; i Rol. 893, i. 23. 
 
 Our statute provides that, "no writ of execution shall bind 
 the property of the goods and chattels of any person against 
 whom such writ shall be issued, until such writ shall be delivered 
 1*48/] to the sheriff, or other officer, to be executed.'' R. S. 300, 
 §8; ibid. § I. 
 
 The common law is, therefore, changed, and neither the judg- 
 ment nor execution is a lien upon the goods of a defendant, until 
 execution is delivered to the officer whose duty it is to execute its 
 commands. In New York the statutory provision in this respect 
 is the same as ours, and it is there held, that executions only bind 
 the goods from the time of delivery of the writ to the sheriff. 
 Haggerty v. Wilier, 16 Johns. 287; Crcsson v. Stout, 17, Id. 
 116; Lambert v. Paulding, 18, Id. 311 ; Beats v. Allen, Id. 363. 
 
 When the execution in this case came to the hands of Brad- 
 ley there was no such person in being as the defendant named 
 therein; there was no existing lien upon the goods by virtue of 
 which they could be seized, and other rights had intervened which 
 could not be affected by a subsequent delivery of the execution 
 to the sheriff. Under our law, the widow had become entitled 
 to certain of the goods and thattels of the deceased, and the bal- 
 
AT WHAT Stage of the case they may issue. 191 
 
 ance was subject to be applied to the payment of his debts gen- 
 erally, according to a statutory rule wholly inconsistent with the 
 existence of any lien or priority in favor of the judgment or of 
 the execution. Welch v. Wallace, 8 111. (3 Gil.) 490; Judy v. 
 Kelley, 11 111. 211. 
 
 We hold that Bradley could not lawfully have levied the exe- 
 cution, which came to his hands after the death of Harper, upon 
 goods and chattels of which Harper died possessed, and, there- 
 fore, in refusing to do so, violated no official duty. 
 
 Judgment affirmed. 
 
 CLERK V. WITHERS. 
 1 Salkeld 322, 2 L. Raymond 1072, 6 Mod. 290, 11 Mod. 35. 
 
 Execution — Death of Plaintiff after Levy — Ren^oval of Sheriff — Defend- 
 ant's Right to Return. 
 
 Decided in the king's bench, before Holt, C. J., Gould, Powys, and 
 Powell, JJ., at Michaelmas term, 3 Anne, a. D. 1705. This report i& 
 according to Salkeld. For arguments in full and opinions seriatim, see 
 6 and 11 Modern. 
 
 An administrator recovered judgment, and sued out a fieri 
 facias, and delivered it to the sheriff the first of August; the 
 sheriff seized the defendant's goods, and afterwards the adminis- 
 trator died; the sheriff returned, that he had seized goods to 
 the value, sed quod remanent in inanibits pro defectu emptorum ; 
 and afterwards the said sheriff was removed, and a new sheriff 
 sworn in. And now the defendant sued a scire facias against the 
 old sheriff, to have his goods again; and judgment being against 
 him in common bench error was brought here, and objected for 
 the plaintiff in error, that the execution was abated, and no body 
 could perfect it ; not the executor of the administrator, because he 
 came in in auter droit; and the administrator de bonis nan could 
 not, for he was paramount; and that this was not within the 17 
 Car. 2. c. 13, for that only regarded the cases after verdict. But 
 Per Curiam. This scire facias is not maintainable; and these 
 points were resolved : 
 
 1st. That the plaintiff's death did not abate the execution, 
 and that the sheriff, notwithstanding that, might proceed in it; 
 because the sheriff has nothing more to do with the plaintiff, for 
 
192 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 the writ commands him to levy and bring the money into court, 
 which the plaintiff's death does rfo way hinder; 1*323] besides, 
 an execution is an entire thing, and cannot be superseded after 'tis 
 begun. 
 
 2dly. That the old sheriff has not only authority, but is 
 bound and compellable to proceed in this execution; for the 
 same person that begins an execution shall end it, and a dis- 
 tringas nuper vicecomitem lies. Of these there be two sorts; 
 one is to distrain the old sheriff to sell and bring in the money; 
 the other to sell and deliver the money to the new sheriff to bring 
 into court; which plainly shows his authority continues by virtue 
 of the first writ. Vide Rastell Ent. 164; Thes. Brev. 90; 34 H. 
 6, 36. 
 
 3dly. That when the sheriff had seized, he was compellable 
 to return his writ, and made himself liable at all events (acts of 
 God excepted) to answer the value of the goods according to his 
 return; 3 Cro. 390; i Cro. 459; and by the seizure the property 
 was divested out of the defendant, and in abeyance. 
 
 4thly. They held, that the defendant was discharged; be- 
 cause the plaintiff having made his election, and the defendant's 
 goods being taken, no farther remedy could be had against the 
 defendant, but against the sheriff only. He may be compelled 
 to return his writ : If it be a false return, an action lies ; if he 
 returns a seizure and sale, he has the money; if he has seized 
 and not sold, that does not discharge but excuse the sheriff, and 
 therefore the plaintiff may have a venditioni exponas to the 
 sheriff, if he continues in office ; if out of office, a distringas nuper 
 vicecomitem, and then he must sell. 
 
 5thly. That since by the 17 Car. 2, c. 13, an administrator 
 
 de bonis non may commence an execution on a judgment obtained 
 
 by an executor or administrator, it is but reasonable, and within 
 
 the equity of that act, that an administrator de bonis non should 
 
 be permitted to perfect an execution thus begun ; for the right 
 
 comes to him. 
 
 Judgment affirmed. 
 
 The third and fourth points were unnecessary to the decision, and 
 were not well resolved, as the student will discover by consulting Green 
 V. Burke, post, 205, 210. 
 
AT WHAT STAGE OF THE CASE THEY MAY ISSUE. 193 
 
 MARINER V. COON. 
 lO Wisconsin 465. (1863) 
 
 How Late Execution may Issue — At Common Law — Under Statutes — 
 Execution on Dormant Judgment — Wlio Object and How. 
 
 Action to recover real estate. Plaintiff claims under a judi- 
 cial sale on execution on a judgment against the defendant. 
 Plaintiff offered in evidence the execution and return indorsed 
 thereon and the marshal's deed executed pursuant to such sale. 
 Defendant objected to the admission of them on the ground that 
 the execution was not issued within two years after the rendition 
 of the judgment. The circuit court sustained the objection, ex- 
 cluded the evidence, and directed a verdict for the defendant. 
 Prom the judgment entered thereon plaintiff appeals. Reversed. 
 
 E. Mariner, in person. 
 
 James Mitchell, for respondents. 
 
 The Court by Dixon, C.J. The question presented by this case 
 IS, whether an execution issued upon a dormant judgment, with- 
 out leave of court, is void or only voidable. If void, no sale can 
 "be made under it, and the purchaser acquires no title ; but if void- 
 able, the sale may be valid, notwithstanding the omission to obtain 
 leave. We are of opinion that such an execution is merely void- 
 able, and therefore that no advantage can be taken of the irregu- 
 larity, except in a direct proceeding to set it aside. 
 
 The rule at common law is well known. If the plaintiff 
 failed to take out execution within a year and a day, extended in 
 ■many of the states, by statute, to two years from the time the judg- 
 ment became final, it could not be regularly issued thereafter, 
 "without reviving the judgment by scire facias. The rule was 
 founded upon a presumption that the judgment had been satisfied, 
 -which drove the plaintiff to a new proceeding to show that it had 
 -not; and yet it was invariably held, that an execution taken out 
 after that time, and without scire facias or judgment of revivor, 
 was not null, but simply irregular. The defendant might, if he 
 desired, interpose and set it aside upon motion ; but if he neglected 
 "to do so, it was considered an implied admission that the judgment 
 
 13 
 
194 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 was still in full force. He might waive the irregularity, and thus 
 avoid the expense of a scire facias. See Erwin's Lessee v. Dun- 
 daSj 4 How. 79; and Doe v. Harter, 2 Carter (Ind.), 252, and the 
 cases cited. 
 
 But the code (§§ 192 and 193 of the original act, now §§ i and 
 2 of ch. 134, R. S.) prescribes a different practice, and it is upon 
 this that the counsel for the defendants chiefly relies. When the 
 execution in controversy [*^(5p] was issued, the period was fixed 
 at two years from the entry of judgment. It is now enlarged to 
 five. Laws of 1861, ch. 140. After that period has elapsed, it 
 is provided that "an execution can be issued only by the leave of 
 the court, upon motion," etc. This language is -said to take away 
 all power, except it be acquired in the manner prescribed, and to 
 render every process issued in contravention of it void for want 
 of jurisdiction. Were we to suppose the legislature to be speak- 
 ing with reference to the question of power, then there is nothing 
 in their language inconsistent with the position of counsel and we 
 might adopt his views. But we are not at liberty to act upon this 
 supposition. Upon looking to the previous state of the law, and 
 to other provisions of the act, we see very clearly that it was a 
 matter of practice with which the legislature were dealing, a ques- 
 tion as to the form of proceeding which should thenceforth be 
 pursued, and not one which necessarily affected the jurisdiction in 
 case the new practice was not complied with. By § 331 of the 
 original act (§ i, ch. 160, R. S.), the writ of scire facias is virtu- 
 ally abolished. The remedies heretofore obtainable in that form 
 may be obtained by civil action undel- the provisions of the code. 
 But by the particular provision of § 2, ch. 134, above referred to, 
 the remedy by motion to revive a judgment which has become 
 dormant by lapse of time, is substituted. Hence the peculiar sig- 
 nificance of the word "only," upon which the counsel insists so 
 strongly to show a want of jurisdiction. The execution shall be 
 issued only upon motion; otherwise the plaintifif might resort to 
 the remedy by civil action. It appears, therefore, that the conse- 
 quences of a departure from the practice prescribed by statute are 
 the same as they were at common law. It is a simple irregularity. 
 
EFFECT OF USE OF ONE ON RIGHT TO ANOTHER. 195 
 
 which the execution debtor may waive, and which it seems he did 
 
 do in this case. 
 
 Judgment reversed, and a new trial awarded. 
 
 Upon the questions involved in this ease the courts are agreed. 
 See review of decisions in Freeman on Executions §§ 29, 30. 
 
 4. THE EFFECT OF THE USE OF ONE WRIT ON THE RIGHT 
 TO ANOTHER. 
 
 As the erroneous dicta in Clerk v. Withers, ante, 191, are 
 discussed under this head, the student should read the case in con- 
 nection with the comments on it in Green v. Burke, post, 205. 
 
 MILLER V. PARNELL. 
 
 2 Marshall 78, 6 Taunton 370, i Eng. Com. Law 658. (1815) 
 
 Fieri Facias and Capias — Concurrent — Use of Both — Election, When. 
 
 This decision was rendered in the English court of common pleas, 
 
 the judges at the time being Gibbs, C.J., Heath, Chambre and Dallas, JJ. 
 
 Rule nisi to discharge Parnell out of custody, he having been 
 taken on ca. sa. after plaintiff had sued out and levied ft. fa. Rule 
 made absolute. 
 
 Per curiam. No doubt, a plaintiff having sued out a writ of 
 fieri facias, may, if he pleases, omit to execute the fieri facias, and 
 take out a writ of capias ad satisfaciendum, and execute that be- 
 fore the fieri facias is returned or returnable. But there is, also, 
 no doubt that if the plaintiff does execute his fieri facias, he 
 cannot have a writ of capias ad satisfaciendum till the fieri facias 
 is completely executed and returned. This is a middle case. So 
 far as the defendant is concerned, the goods, to the extent of their 
 value, have been levied ; and the question is, whether the plaintiff, 
 after taking them, may change his mind, and sue out a writ of 
 capias ad satisfaciendum without returning his former writ. If 
 [*J7.?] this might be, it would confer a power that might be much 
 abused. If the fieri facias be returned, there is something to bind 
 the plaintiff, and to limit for how much he shall have the body, by 
 showing how much he has already gotten. If a plaintiff might 
 
196 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 take goods under a fieri facias, and hold them a month, or the 
 greater part of the long vacation, and then change his mind, and 
 say, "I will not sell, but will take the body of the defendant under a 
 capias ad satisfaciendum," it might be the engine of very great op- 
 pression. The plaintiff may, by the practice of the court, sue out 
 both these processes together, if he will, and may use either the 
 one or the other, as he sees advisable, but by using the fieri facias, 
 first, he makes his election, and having so elected, he cannot use 
 the other process, till after the return of the first. We, therefore, 
 think, that this writ of capias ad satisfaciendum, being sued out 
 after the fieri facias had issued and after the sheriff had taken the 
 goods under it, and before its return, cannot be supported. Rule 
 ■absolute, hut on the terms of bringing no action against the sheriff. 
 
 Very similar facts and ruling in Cutler v. Colver, 3 Cowen (N. Y.) 
 30. 
 
 PRIMROSE V. GIBSON. 
 2 Dowling & Ryland 193, 16 Eng. Com. Law 78. (1822) 
 Fieri Facias and Capias — Concurrent — Use of Both — Election, When. 
 This decision was rendered by the English court of king's bencli, 
 the judges being Abbott, C.J., Bayley, Holroyd and Best, JJ. 
 
 The question in this case was, whether a ca. sa. against the 
 person, and a fi. fa. against the goods of the defendant, might both 
 issue at the same time. It appeared that the sheriff's officer, hav- 
 ing both writs delivered to him, went to the defendant's house for 
 the purpose of taking him in execution on the ca. sa., and, not be^ 
 ing able to find him, took his goods in execution under the fi. fa.; 
 and on showing cause against a rule for setting aside the execu- 
 tion for this alleged irregularity, 
 
 The Court said, there was nothing irregular in the proceed- 
 ings, both writs might run together, and therefore discharged the 
 rule, with costs. 
 
 PONTIUS V. NESBIT. 
 40 Pennsylvania St. 309. (1861) 
 
 Concurrent Garnishments under Different Statutes. 
 Rule obtained by Mary Hayes, as garnishee in above action, 
 to show cause why the attachment execution against her should 
 not be quashed. From an order making the rule absolute plaintiff 
 ^brings error. Reversed. 
 
EFFECT OF USE OF ONE ON RIGHT TO ANOTHER. 197 
 
 Plaintiff had issued attachment-execution under Act of 1836, 
 § 35, and served it on the Lewisburg Bank, but finding defendant 
 had no deposits there, had issued this attachment under § 32 of 
 the same act, with a view of attaching stock of said bank, owned 
 by defendant, but held in the name of Mary Hayes, with which 
 writ she was served. 
 
 The Court by Woodward, J, * * * The court, on motion, set 
 aside the latter writ, on the ground that the former one had not 
 been abandoned or discontinued, and that plaintiff was not entitled 
 to two attachments at the same time. * * * [*JJi] * * * The 
 only objection to it was the pendency of the prior attachment 
 That was no valid objection. Both writs of attachment were exe- 
 cution process ; and the general rule is that you may have as many 
 forms of execution as the law will afford, and may pursue them 
 all at the same time until satisfaction be obtained on one of them. 
 Before imprisonment for debt was abolished, a ca. sa., a fi. fa., and 
 an attachment-execution might all be out at one and the same 
 time. We see no irregularity in the practice in this case, but if 
 there were any, it was obviated by the discontinuance of the first 
 attachment, on the same day the court set aside the second. 
 
 The judgment is reversed, and the record remanded, with 
 a procedendo. 
 
 SPRING V. AYER. 
 23 Vermont 516. (1851) 
 
 Execution against Garnishee after Execution against Principal De- 
 fendant. 
 
 Trustee process by Spring against Ayer, principal debtor, and 
 against Smith as his trustee. Having obtained judgment against 
 Ayer, plaintiff had execution issued against him, and thereon 
 seized and sold property the proceeds of which partly satisfied the 
 judgment. Smith, against whom judgment had not yet been ren- 
 dered, claimed this was a discontinuance of the proceedings against 
 him. From judgment against the trustee he appeals. Affirmed. 
 
 The Court by Redfield, /. * * * If the plaintiff has obtained 
 valid, legal satisfaction of any portion of his debt, and that appears 
 in the case, he could not regularly obtain execution here, against 
 
198 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 the trustee, for anything more than the balance. * * * [*5i8] The 
 party, under the existing statutes, is entitled to attach the goods, 
 effects and credits in the hands of trustees, and also in the defend- 
 ant's possession; and he must of course have execution against 
 both, at some time; and why these executions against dififerent 
 persons should necessarily be contemporaneous, I do not well see. 
 * * * We perceive no incongruity here in the creditor having his 
 execution against the principal defendant, as soon as his judgment 
 is perfected, if he will move the court to that effect. Perhaps as 
 matter of course he ought not to be required to proceed, at the peril 
 of losing his lien, until the entire suit is ended. But if, in the 
 present case, the issuing of the execution is to be regarded as pre- 
 mature, it could only become, in consequence, irregular and void 
 [voidable], to be set aside on motion, or process for that purpose, 
 but valid so long as it remains on record and acquiesced in by the 
 other party. *• * * 
 
 Judgment affirmed. 
 
 SUTTON V. HASEY. 
 
 S8 Wisconsin 556, 17 N. W. 416. (1883) 
 
 Garnishment after Levy under Execution. 
 
 Garnishment on execution by Sutton, the judgment creditor, 
 against Hasey to charge him as garnishee of Chapman, the judg- 
 ment defendant, for property claimed to be held by Hasey by 
 fraudulent transfer. From judgment charging the garnishee he 
 brings error. Affirmed. 
 
 The Court by Taylor, I. * * * It is objected that the plaintiff 
 should not recover in this proceeding, because, after the same was 
 properly commenced under the provisions of § 2753, R. S. 1878 
 a second execution was issued on the judgment against Chapman, 
 and property levied upon sufficient to satisfy the execution. We 
 do not think this objection is well taken. The judgment against 
 Chapman had not been paid, and the property levied upon had 
 been replevied by the appellant. It is true, appellant had given a 
 bond to answer for the value of the property in case it should be 
 determined that the sheriff was entitled to hold the property seized 
 on his execution to satisfy Chapman's debt. If, however, Hasey 
 should be compelled to pay the amount of the Chapman judgment 
 
EFFECT OF USE OF ONE ON RIGHT TO ANOTHER. 199 
 
 in this proceeding, and on the trial of the replevin action the sheriff 
 should succeed, he could only recover damages against Hasey for 
 the amount unpaid on the judgment, and if it were all paid, he 
 would either be defeated in that action or recover only nominal 
 damages. 
 
 There does not seem to be any objection to the plaintiff's pur- 
 suing both these remedies at the same time. If the proof showed 
 a seizure of sufficient property upon the execution to satisfy the 
 judgment against Chapman, — and there was no dispute as to the 
 ownership of the property so seized, or its liability to be applied in 
 payment of the judgment, — there would be reason for holding that 
 no judgment should be [*5<55] rendered against the defendant in 
 the garnishee proceedings until it was ascertained whether such 
 levy would discharge the judgment. In such case the proper 
 course would be to get a stay of proceedings in the garnishee ac- 
 tion until the result of the proceedings upon the execution was as- 
 certained. * * * 
 
 The judgment of the circuit court is affirmed. 
 
 ADAMS V. SMALLWOOD. 
 8 Jones Law (North Carolina) 258. (i860) 
 
 Several Simultaneous Fieri Facias to Different Counties — Right or 
 Privilege — Of Course or on Motion — Safeguards, Duty of Court. 
 
 Motion by Adams to set aside his execution to Guilford Co. 
 on his judgment against Smallwood and Hiatt on the ground that 
 the judgment had been satisfied by a sale of Smallwood's property 
 on an execution issued to Halifax Co. at the same time that the 
 other writ issued. The motion was opposed by Smith, to whom 
 Hiatt's house in Guilford had been sold on the execution to that 
 county. From an order granting the motion Smith was allowed 
 by the court to appeal. Affirmed. 
 
 The Court by Manly, J. It is believed to be within the 
 power of a plaintiff, who has judgment, to sue out a writ of £eri 
 facias, and before return day, nothing being done, to return it into 
 the office and sue out another, but it is not within his power to take 
 two writs at the same time, without special leave from the court. 
 It was, therefore, irregular and without any warrant of law, that 
 
200 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 the two writs of fieri facias were sued out in this case. All that 
 is decided, as we conceive, in the case of McNair v. Ragland, 2 
 Dev. Eq. 42, is in conformity with the above. 
 
 It was competent, therefore, for the court, upon its own mo- 
 tion, to have quashed at least one of the writs. It was especially 
 proper for it to do so, after one was satisfied. The judgment 
 thereby became extinct, and the fieri facias was consequently de- 
 prived of all legal vitality. 
 
 It might, occasionally, conduce to the ends of justice to be 
 allowed to take out more than one execution at a time ; and, upon 
 proper suggestions as to its expediency, and satisfactory assur- 
 ances that it would not be urged for the purposes of oppression or 
 fraud, the court would allow it. The writs in such case would be 
 put into action upon the responsibility of the party suing them out, 
 but this responsibility would not dispense the court from the duty 
 of seeing that the objects were apparently legitimate and from 
 guarding, as far as possible, against a misuse of the process. It 
 is a power, in other words, which the court ought to put into the 
 hands of plaintiffs sparingly and with caution. 
 
 Judgment affirmed. 
 
 Two fl. fas. being similarly issued against defendants similarly 
 situated, one only was levied and an injunction against it was dissolved 
 on appeal, the court by Martin, J., saying: "This mode of proceeding 
 was certainly more expeditious than correct. Nothing in our jurispru- 
 dence authorizes two executions issuing at the same time on one judg- 
 ment, whatever be the number of persons against whom it may have 
 been obtained. * * * if one of the executions issued after the first 
 the irregularity is in the second only, and nothing ought to prevent the 
 execution of the first. If they be issued simultaneously, and one of 
 them, alone, as in the present case, be acted upon, the execution of the 
 second, if attempted, may be enjoined. But neither justice nor equity 
 forbid proceedings on the other." Hudson v. Dangerfield, 2 La., 63, 20 
 Am. Dec. 297. 
 
 In McNair v. Ragland permission was granted on motion to sue out 
 several fi. fas. to different counties at the same time. 
 
EFFECT OF USE OF ONE ON RIGHT TO ANOTHER. 201 
 
 BRICE V. CARR. 
 13 Iowa 599. (1862) 
 
 Garnishment — Effect as Payment on Main Judgment — Wlno Bear Loss 
 from Insolvency of Garnishee — Duty of Judgment Debtor. 
 
 The Court by Wright, J. Complainant seeks to restrain the 
 collection of a judgment. The gravamen of the bill is, that the 
 creditor garnished a [*(5oo] debtor of the defendant in execution, 
 and held him so long under and by virtue of that process, that he, 
 in the meantime, proved to be insolvent ; that complainant thereby 
 lost his debt, whereby he was in equity discharged from all liability 
 on said judgment. 
 
 We think the court was justified in concluding that there was- 
 no such delay, on the part of plaintiff in the garnishee proceedings, 
 as to entitle complainant to the relief asked. And if unnecessary 
 delay did occur, complainant could have prevented this by paying 
 his debt, as was his duty, and thus releasing the garnishee. This 
 proceeding did not absolve complainant from his duty to discharge 
 his debt. He had something to do. He could not remain passive. 
 
 AMrmed. 
 
 To same effect see Dickinson v. Clement, 87 Va. 41, 12 S. E. 105; 
 McBride v. Farmers' Bank, 28 Barb. (N. Y.) 476; Starr v. Moore, 3 Mc- 
 Lean, 354, Fed. Gas. No. 13,315; McElwee v. Jeftreys, 7 S. Car. 228; 
 Wade V. Watt, 41 -Miss. 248. 
 
 Without mentioning Brice v. Carr, or any of the cases above cited, 
 the supreme court of Iowa, in a recent case, entered satisfaction of the 
 principal judgment, on petition of the judgment debtor showing that 
 on garnishments judgments had been rendered against the garnishees 
 equal in amount to the main judgment, saying that if the creditor could 
 not realize on the garnishment judgments he must prove it. Bowen 
 v. Port Huron B. & T. Co., 109, Iowa 255, 80 N. W. 345, 47 L. R. A. 131, 
 77 Am. St. Rep. 539. And see: Coe v. Hinkley, 109 Mich. 608; Doughty 
 V. Meek, 105 Iowa 16. 
 
 In overruling a demurrer to a declaration in debt on judgment be- 
 cause it appeared thereby that a judgment had been recovered thereon 
 against garnishees, the court said: "The judgment against Higgins 
 (defendant) is separate from, and independent of, that against the gar- 
 nishees. It is true, both judgments are for the same demand, and if 
 either is satisfied the plaintiff would not be permitted to enforce the 
 collection of the other. But until one is satisfied, the plaintiff's remedy 
 on each is as ample as though no other judgment had bsen rendered." 
 Price V. Higgins, 11 Ky. (1 Litt.) 273. 
 
202 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 YAZOO & MISSISSIPPI VALLEY RY. CO. v. PULTON. 
 
 71 Mississippi 385, 14 South. 271. (1893) 
 
 Effect of Garnishment on Title to Property or Debt — Effect on Defend- 
 ant's Title of Judgment Against Garnishee — Effect of Each on 
 His Right to Action, Judgment and Execution — How 
 Garnishment Should Be Pleaded as a Defense. 
 
 Two actions by J. W. Fulton against Yazoo & M. V. R. R. 
 Co. for damages for a mule injured and an ox killed by defend- 
 ant's trains. Pleas by defendant that it had been summoned as 
 garnishee in a suit against the plaintiff in Tennessee before these 
 suits were commenced and that judgment had been rendered 
 against it. Plaintiff's actions coming to the circuit court by de- 
 fendant's appeal from the justice's judgment, the circuit court con- 
 solidated the actions and gave judgment for plaintiff and defend- 
 ant again appeals. Reversed. 
 
 Mayes & Harris, for appellant. 
 
 F. A. Montgomery, Jr., for appellee. 
 
 The Court by Cooper, J. * * * The defendant introduced in 
 evidence the record of the attachment suit, and is entitled to have 
 it considered in any light in which it should have been available 
 to it. 
 
 There is a wide diversity of views entertained by the courts 
 of the various states as to the effect of a judgment against a gar- 
 nishee who is afterwards sued by the original creditor, the de- 
 fendant in attachment or judgment. In England it is held that 
 a judgment against the garnishee is a bar to an action upon the 
 same debt. McDaniel v. Hughes, 3 East, 367. The courts of 
 Florida, Indiana, Kentucky, Maine, and Massachusetts have an- 
 nounced the same rule. Sessions v. Stevens, i Florida, 233 ; 
 Covert V. Nelson, 8 Blackford (Ind.) 265 ; King v. Vance, 46 Ind. 
 246; Coburn v. Currens, 64 Ky. (i Bush) 242; McAllister v. 
 Brooks, 22 Maine, 80; N orris v. Hall, 18 Id. 332; Perkins v. 
 Parker, i Mass. 117; Hull v. Blake, 13 Id. 152. 
 
 In other states and in the supreme court of the United States, 
 it is held that the judgment or pendency of garnishment proceed- 
 ings may be pleaded in abatement of the plaintiff's suit. Emhree 
 V. Hanna, 5 Johns. loi ; Haselton, v. Monroe, 18 N. H. 598 ; Ladd 
 
EFFECT OF USE OF ONE ON RIGHT TO ANOTHER. 203 
 
 V. Jacobs, 64 Maine, 347; Irvine v. Lumbermen's Bank, 2 Watts 
 •& Serg. (Pa.) 190; Near v. Mitchell, 23 Mich. 382; Clise v. Free- 
 borne, 27 Iowa, 280; Brown v. Somerville, 8 Md., 444; Mattingly 
 V. Boyd, 20 How. (U. S.) 128. [*39o\ 
 
 In others, it has been held that, though the proceeding or 
 judgment may not be pleaded in abatement or bar of the suit of 
 the creditor, yet the court, in entering up judgment, would so 
 frame the same as to protect the defendant, garnishee, in the other 
 action from being called on to pay the same debt twice. Meriam 
 V. Rundlett, 13 Pick. 511 ; Crawford v. Slade, 9 Ala. 887; Smith 
 T. Blatchford, 2 Ind. 184; McFadden v. O'Donnell, 18 Cal. 160; 
 Pierson v. McCahill. 21 Id. 122; Shealy v. Toole, 56 Ga. 210; 
 Hicks V. Gleason, 20 Vt. 139. 
 
 The course of decision in some of the states has not, prob- 
 ably, been at all times consistent, and we have not attempted to 
 ■discover how the respective courts now hold, for that is immate- 
 rial. The different views entertained, and the general classifica- 
 lion of the decisions, have been deduced from a review of the text 
 ■of Drake on Attachments, ch. 38, and the cases therein cited. The 
 ■question has never been decided in this state, though in Kellogg 
 V. Freeman, 50 Miss. 127, there is a dictum to the effect that by a 
 judgment against the garnishee the debt he theretofore owed to the 
 defendant "is transferred by operation of law," and inures to the 
 Ijenefit of the plaintiff in attachment. We cannot assent to the cor- 
 rectness of this proposition. The plaintiff in attachment, seek- 
 ing merely to enforce a pecuniary demand against his debtor, 
 does not, by the judgment against the debtor, acquire the legal 
 title to his estate, real or personal. The judgment is but a step 
 in the enforcement of the demand of the plaintiff, and subjects the 
 ■estate of the debtor to the process of the court to pay the debt 
 awarded. So also the garnishment of one owing the defendant a 
 sum of money or having his effects in possession, and the judg- 
 ment against the garnishee directing him to pay over the money 
 •or deliver the property to the proper officers, are but other steps 
 in the same direction. No property in the debt due or the thing 
 surrendered by the garnishee passes to the plaintiff by the judg- 
 ment, for, if such were the case, it would discharge, pro tanto, the 
 
204 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 judgment, [*ip/] which would thus be self-executing and self- 
 ending. In truth, all that the plaintifif secures is the right to have the 
 garnishee pay to him the debt which, before that, was due to the 
 defendant. Payment by the garnishee is the only thing, which 
 can release him and bar the right of his creditor. The mere fact, 
 therefore, that a judgment has been rendered against the garni- 
 shee is not available to him in bar of a suit afterwards or before 
 instituted against him by his creditor. 
 
 But since the attaching creditor, by his judgment, has se- 
 cured the right to issue execution against the garnishee, it would 
 be inequitable to permit the defendant in attachment to secure- 
 another judgment, with the right of instant execution to collect, 
 the same debt. The debt is yet his, and he is interested in its col- 
 lection, but it has been impounded under legal process, and a 
 charge imposed which is superior in right to his. To meet the- 
 exigency and preserve as far as practicable all the rights of all the 
 parties, a number of the courts, as will be seen by reference to the 
 citations above made, have held that the right of action or the right 
 of execution should be suspended until the lien of the attaching 
 creditor is discharged. In those jurisdictions in which it is held 
 that the right of action is suspended, the defendant may plead in 
 abatement of the suit the pendency of the garnishment proceed- 
 ings or the fact that judgment has been rendered against him 
 therein. In those in which the right to sue is upheld, protection 
 is afforded the defendant by suspending execution of the judg- 
 ment until the defendant is relieved of liability under the judgment. 
 against him as garnishee. In most instances, the practical effect 
 would be the same under either rule. 
 
 In view of the facts that it may sometimes be of importance- 
 to the creditor to have a judicial determination of his rights at as- 
 early a time as possible, and that the debtor cannot be injured by 
 the mere rendition of the second judgment, we think the better 
 rule is that the creditor may proceed to judgment, but that exe- 
 cution thereof should be stayed to an [*J9^] amount equal to that 
 for which the defendant is sought to be charged as garnishee in a. 
 pending suit, or for which judgment has been rendered against 
 him. 
 
EFFECT OF USE OF ONE ON RIGHT TO ANOTHER. 205 
 
 The judgment of the court in this cause should have been for 
 the plaintiff, but with a stay of execution as to eighty dollars, with 
 interest from September 9, 1893 — the date of the judgment 
 against the garnishee — until the defendant should be discharged 
 from liability thereunder. In failing to incorporate this saying in 
 the judgment, the court below committed error, for which its 
 judgment must be 
 
 Reversed, but a proper judgment may be entered here. 
 
 MOUNTNBY v. ANDREWS. 
 Croke's Bliz. 237. (In the queen's bench, Trinity, 33 Eliz., A. D. 1591). 
 
 Scire facias upon a judgment in debt. The defendant pleads, 
 that upon a fieri facias directed to the sheriflE of the .county of 
 Leicester, for levying the debt, he by force of it took divers sheep 
 of the defendant's for the debt, and yet detaineth them. And this 
 was ruled a good plea ; although he doth not allege that the writ 
 is returned, and although the writ is conditional, ita quod habias 
 denarios, &c., for the plaintiff hath his remedy against the 
 sheriff, and the execution is lawful, which the defendant cannot 
 resist. Rook v. Wilmot, Cro. Eliz. 209. 
 
 GREEN V. BURKE. 
 23 Wend. (New York) 490. (1840) 
 
 Execution — What constitutes a Levy, the General Test — Necessity of 
 Taking and Retaining Exclusive Actual Possession — Importance 
 of Proclamation, View, Handling, Inventory, and Indorsement — 
 Validity of Levy by Infant Officer — Effect of Levy and Re- 
 lease, Escape, Recaption, Compromise, Loss or De- 
 struction of Property — Validity of Sale on New 
 Writ — Sale at a Sacrifice — Rights of Creditor 
 as to Other Property and Writs 
 While Levy Stands. 
 
 Replevin by Green against Burke for nine acres of wheat pur- 
 chased by Green on execution in favor of himself and another 
 against Burke. From judgment on verdict for defendant plaintiff 
 appeals. Reversed. 
 
 Defendant claimed that plaintiff acquired no title by virtue 
 of the purchase at the sale by constable Rood, because the judg- 
 ment was satisfied by reason of a levy on three colts under a pre- 
 
206 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 vious execution thereon, which had been returned and the levy 
 abandoned by the constable Stevenson because "he was under age. 
 
 W. Porter, jr., for plaintiff. 
 
 F. G. Jewett, for defendant. 
 
 The Court by Cowen, J. -■'■ * * There is no dispute that the 
 title to the .wheat had been acquired by the plaintiff, in virtue of 
 his purchase under the execution held by Rood, unless the pre- 
 vious levy on, and abandonment of the colts by Stevenson, worked 
 a satisfaction of the judgment. The latter held a regular execu- 
 tion ; and made a levy which was sufficient in point of form, on 
 property of adequate value. It is supposed by the plaintiff's 
 counsel that there was no levy, because no act was done which 
 would, but for the protection of the execution, have been such a 
 taking of the colts as to amount to a trespass. This was spoken 
 of as the criterion of a levy, in Beekman v. Lansing, 3 Wend. 446, 
 450; and it was there said the court were inclined to consider it 
 an essential criterion. We are not disposed to deny that it is so. 
 The court there also said that the officer must take actual posses- 
 sion where it is in his power; but he need not remove the goods. 
 They may be left with the defendant ; nor did the court insist that 
 an inventory was necessary. The case cited was well considered ; 
 and on the question of what acts of the officer alone shall consti- 
 tute a levy, highly authoritative. * * * The acts of the sheriff 
 were all summed up in his going to the house of the judgment 
 [*^pj] debtor with the execution in his pocket, but omitting even 
 to apprise him that he had come to make a levy. The court says 
 that he should have done some definite act in respect to the goods ; 
 something which could be known to the debtor and communicated 
 to his landlords. That the latter, at least, were not to be affected 
 by a mere mental levy. Id. 451. This question is well consid- 
 ered by Taylor, C.J., in Dae, ex. deiii. Burden, v. M'Kinnie, 4 
 Hawks (N. Car.), 279, 280. In short, as between the sheriff and 
 third, persons, he shall not be allowed to proceed in so secret a 
 manner, as to cut off all probable means of their knowing how to 
 deal with the debtor in respect to his goods, whether as purchasers 
 from him, or as his landlords claiming rent, or as subsequently 
 levying creditors. Vid. Bliss v. Ball, 9 Johns. (N. Y.) 132. 
 
EFFECT OF USE OF ONE ON EIGHT TO ANOTHER. 207 
 
 Haggerty v. Wilber, 16 Id. 287. As it respects the defendant 
 himself, too, the proceeding should be such as to apprise him of 
 the step ; and if he be not informed of it, at least a reasonable time 
 before the sale, yet the sheriff's acts should be such as not to leave 
 the inference of intentional concealment. The defendant should 
 have a fair opportunity to make the proper arrangements for pre- 
 venting a sacrifice of his property. The proceedings of the offi- 
 cer being such as are naturally calculated to avoid injurious con- 
 sequences, the form in which he chooses to make the levy is totally 
 immaterial. Holding the process, having the goods in his power, 
 and directly declaring his intent, or doing what is equivalent, as 
 taking an inventory, or making a memorandum of the levy, satisfy 
 that branch of the rule which directs a change of possession./ 
 Speaking is always an important part of the res gestae .which con- 
 stitute such a change. In Wood v. Vanarsdale, 3 Rawle (Pa.), 
 401, the sheriff merely entered a store of goods, and declared his 
 intention to levy; and although the defendant expressed his dis- 
 satisfaction, and did no act to waive formality, the seizure was 
 held to be complete, notwithstanding the officer returned nulla 
 bona. He had put no one in possession, taken no inventory, and 
 never, after declaring the levy, interfered with the goods in the 
 least. The court held distinctly, citing the New York cases, that 
 none of these acts were necessary; and the sheriff [*4P4] having 
 returned the execution and abandoned the levy, by consent of the 
 plaintiff's assignee, the judgment was declared to have been satis- 
 fied. In Trovillo v. Tilford, 6 Watts (Pa.), 468, the sheriff did 
 not see the goods at all, nor did he go near them ; but the defend- 
 ant gave him a schedule, by arrangement, which he agreed should 
 be considered a levy ; and that was held sufficient, even against a 
 third person, claiming as the defendant's vendee. Gilkey v. 
 Dickerson, 3 Hawks (N. Car.), 293, is not incompatible with Tro- 
 villo v. Tilford, nor with the common notion of what acts consti- 
 tute a levy. There the coroner merely called on the defendant and 
 asked him for a list of goods which he might sell to satisfy 
 the execution ; and the defendant gave him a list of negroes, suffi- 
 cient in value ; but the coroner never saw them, and the defendant 
 afterwards took them out of the county and sold them. The cor- 
 
208 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 oner therefore levied again on two other negroes, which the de- 
 fendant afterward sold to Gilkey, who insisted on his right as ven- 
 dee, because the judgment had been satisfied by what he called the 
 first levy. Held that it had not ; and Taylor, C. J., gave the reason. 
 He said : "Had the property been present when the list was de- 
 livered, and the coroner had signified that he held it bound to an- 
 swer the execution, and there was no opposition to his possessing 
 himself of it, had he so desired, it would have amounted to a levy." 
 It will be perceived that no evidence was given whether the ne- 
 groes were anywhere within miles of the coroner; and he did 
 nothing and said nothing indicating that he considered the list a 
 levy. Beside, according to our cases, the eloignment and sale of 
 the negroes by the defendant would have warranted the second 
 levy irrespective of the question whether the first had been regu- 
 lar or not. 
 
 An actual taking of possession, therefore, does not necessarily 
 imply an actual touching of the goods ; but merely such a course 
 of action as, in effect, is calculated to reduce them to the dominion 
 of the law'. They are then considered as in the custody of the 
 law ; and a degree of constructive force is imputed which at once 
 entitles the party whose goods are thus seized to his action of tres- 
 pass, if the officer [*'/p5] be destitute of authority. Whether the 
 rule requiring that to be done which may amount to a trespass, is 
 thus satisfied, we have examined more at large in the case of Con- 
 nah V. Hale, 23 Wend. 462. I have said more upon the point now, 
 because Bailey v. Adams, 14 Wend. 201, has been pressed upon 
 -us as implying that the property must in some way be manually in- 
 terfered with. There, the constable went with his execution to 
 the man who had possession of the property, a wagon, claimed to 
 levy on it as belonging to the defendant in the execution, making 
 a note of the levy, and leaving the wagon, with directions that the 
 man should take care of it. Ten or twelve days after, becoming 
 satisfied that the execution debtor had no title, he offered to re- 
 linquish his claim to the plaintiff, who was the real owner; but 
 the latter refused to accept the wagon, and brought trover against 
 the creditor who had directed the levy. The acts of the .constable 
 -were held not to have been a conversion ; the court remarking that 
 
EFFECT OF USE OF ONE ON RIGHT TO ANOTHER. 209 
 
 the actual possession of the property was not changed, and the 
 plaintiff had been put to no charge concerning it. The learned 
 judge who delivered the opinion of the court, referred in a general 
 way to Reynolds v. Shuler, 5 Cowen, 323, and Bristol v. Burt, 7 
 Johns. R. 254. The question was considered in those cases; but, 
 with deference, I understand them both to hold that such acts as 
 were proved in Bailey v. Adams, would clearly amount to a con- 
 version; and that even an actual acceptance of the goods by the 
 owner, much less a mere offer to deliver them, could no farther 
 qualify the wrong, than by reducing the damages. Wintringham 
 V. Lafoy, 7 Cowen, 735, was not cited. That case held the officer 
 liable in trespass de bonis asportatis, though he merely claimed to 
 have levied, taking an inventory and receipt. The decision was 
 also incompatible with the rule laid down in Allen v. Crary, 10 
 Wend. 349 ; Fonda v. Van Home, 15 Id. 631, 633, and many other 
 cases. The injury being complete, it is clear that a tender of the 
 property will not affect the plaintiff's rights. Clark v. Hallock, 
 16 Wend. 607 ; Hanmer v. Wilsey, 17 Id. 91. It is said in the lat- 
 ter case, and so are all the authorities, that even an acceptance by 
 the plaintiff, \*4q6^ goes to the question of damages only. There 
 is no such thing as waiving a cause of action after it has once 
 arisen. And in the case at bar, there is no question that either 
 trespass or trover would have lain by Burke against Stevenson, 
 the minor, notwithstanding his abandonment of the levy, unless 
 he was protected by the process. * * * In short, there was no 
 such thing as Stevenson purging his own wrong by merely omit- 
 ting to follow up the trespass he had committed. He went to the 
 field with the defendant, for the purpose of levying on the colts ; 
 and made a note of the levy on the back of the execution. He not 
 only had the goods in view, and the intention to levy, but the de- 
 fendant, the execution debtor, had notice, and co-operated in, and 
 submitted to the act. 
 
 Prima facie, then, the debt was, or might have been, accord- 
 ing to the event, satisfied by the levy. And many cases are cited 
 by the defendant's counsel to show that, although the constable 
 gave it up, and returned the execution to the justice, utterly refus- 
 ing to proceed, yet the plaintiffs were concluded and could not sue 
 11 
 
210 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 out a new execution. The ground taken is, that the judgment 
 was unqualifiedly satisfied by the levy. Admitting that the con- 
 stable had the power to levy, then, so long as he kept the act good, 
 and followed it up, something near the consequence contended 
 [*497] for undoubtedly followed; but he withdrew, without the 
 consent or knowledge of the plaintiffs, and I am not prepared to 
 admit that, in such a case, the creditor is bound to look to the offi- 
 cer alone for his remedy. I know that learned judges use lan- 
 guage in the cases cited, which is very strong. They say a levy 
 is a satisfaction of the debt; but every book they cite, and every 
 case they decide, shows under what qualifications they speak. 
 They all go back to Mountney v. Andrews, Cro. Eliz. 237. There 
 the plaintiff brought a scire facias quare executionem non, and 
 the plea was, not simply that the sheriff had levied, but that he 
 had taken divers sheep of the defendant for the debt, and yet de- 
 taineth them. The reason given was, that "the plaintiff has his 
 remedy against the sheriff, and the execution is lawful which the 
 defendant cannot resist." The value of the sheep was not men- 
 tioned ; and surely it cannot be pretended that such a step shall be 
 taken as a satisfaction per se. Suppose the sheep had been sold, 
 bringing only half the judgment ; was the remedy by action, scire 
 facias, or execution gone for the residue ? I need not cite authori- 
 ties to show that such a consequence would not follow. It would 
 be absurd, and contrary to all practice. The doctrine laid down 
 in Clerk v. Withers, i Salk. 322, the case commonly relied on, is, 
 that "the defendant's goods being taken, no farther remedy could 
 be had against the defendant, but against the sheriff only." The 
 reason given is : "He may be compelled to return his writ ; if it be 
 a false return, an action lies; if he returns a seizure and sale, he 
 has the money; if he has seized and not sold, that does not dis- 
 charge, but excuse the sheriff, and therefore, the plaintiff may 
 have a venditioni exponas," &c. The doctrine thus laid down was 
 not material, at least not essential to the decision ; and on referring 
 to the same case in 2 Ld. Raym. 1072, a contemporary report, the 
 whole will be found to lie in a dictum of Gould, J., founded on a 
 curtailed statement of Mountney v. Andrews. In this he does not 
 present the plea there as one of detainer, but of levy only. It is 
 
EFFECT OF USE OF ONE ON RIGHT TO ANOTHER. 211 
 
 impossible to say that a verdict for the defendant would have 
 operated as more than a temporary bar of execution. The [*498] 
 seizure works no change of interest beyond vesting a special prop- 
 erty in the officer. The general property still remains in the 
 debtor. Wilbraham v. Snow, 2 Keble, 588, i Siderfin, 438, s. c. 
 and vid. Ayer v. Aden, Yelverton, 44. The goods are but a col- 
 lateral security ; and the seizure is, per se, neither a payment nor 
 satisfaction absolute, but only suh modo. Yet from Clerk v. 
 Withers, comes a progeny of dicta couched in the same general 
 language. Parsons, Ch. J., in Ladd v. Blunt, 4 Mass. 402, puts 
 it that when sufficient goods are seized the debtor is discharged, 
 even if the sheriff waste the goods, &c. ; for, by lawful seizure the 
 debtor has lost his property in the goods." None of this was nec- 
 essary, for he was merely examining whether a levy on land 
 would satisfy the debt, and held it would not, and in such case, he 
 concludes it is no satisfaction, because till the land is delivered 
 to the plaintiff, the title of the defendant is not divested, and the 
 judgment is unsatisfied. We have held the same thing. Shepard 
 V. Rowe, 14 Wend. 260, 262. And yet we have often taken it for 
 granted that the sheriff may, nay must levy on land as well as 
 goods; Jackson ex Dem. Sternberg v. Shaffer, 11 Johns. 513, 517; 
 Jackson ex dem. Carman v. Rosevelt, 13 Johns. 97, 102 ; and we 
 have, in several cases, allowed him fees for such levy, which im- 
 plies that we consider it an incipient execution of the process, the 
 same as a levy on goods. Parsons v. Bowdoin, 17 Wend. 14, 15, 
 and the cases there cited. Are these cases all wrong? If not, a 
 levy on land is more than a levy on goods, for the lien of the judg- 
 ment conspires with that of the execution. In neither case is the 
 debtor's property absolutely divested till a sale; but in both it is 
 partially displaced, though the sheriff acquire no interest in the 
 land. Take it that the sheriff holds a mere naked power in respect 
 to the land, like a tax collector; Catlin v. Jackson, 8 Johns. 520, 
 546 ; take it that the power or levy dies with him, or expires when 
 he goes out of office, or is gone with the return day of the fi. fa. 
 according to the cases in North Carolina ; Doe, ex dem. Barden v. 
 M'Kinnie, 4 Hawks (N. Car.), 279; Frost v. Etheridge, i Dev. 
 (N. Car.), 30; Den, ex dem. Tayloe v. Fen, i Dev. 295; Tarkin- 
 
212 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 ton V. Alexander, 2 Dev. & Batt. 87, and the cases cited by Gas- 
 ton, J.; yet you have a lien by virtue of the judgment, surer in its 
 effect than can arise from a mere levy on personal property ; and 
 the distinction between the effect of discharging the lien in one 
 or the other case, is merely technical. The goods levied on are a 
 pledge for the debt, like a distress for rent in the hands of the 
 landlord. That too works a suspension of all other remedy ; and 
 may mature into a satisfaction. Vid. Wallis v. Savill, 2 E. Lutw. 
 (Eng.) folio p. 1532, Eng. Ed. 649; Hutchins v. Chambers, i 
 Burr. 589; Bradby on Distresses, 130. A voluntary relinquish- 
 ment of a sufficient distress would probably bar all further rem- 
 edy by the act of the landlord, if not an action for the rent. And 
 yet in almost every other point of view, the goods are regarded as 
 no more than a collateral security. 
 
 Our cases appear to have drawn various consequences from 
 Clerk V. Withers; but I apprehend none of them admit the levy 
 to operate as an absolute satisfaction. Reed v. Pruyn, 7 Johns. 
 R. 426, was where the sheriff had paid the money. The court 
 there cite Ward v. Hauchet, i Keble, 551, to show that the sheriff 
 taking security for the debt, would discharge it: but in that case 
 the plaintiff consented to the sheriff taking a bond. Nothing is 
 said of a levy, and the rule there, as stated by counsel and agreed 
 to by the court, is clearly not law. Merely taking security by bond 
 will not discharge a judgment, though I admit that security taken 
 in due course of execution, even without the plaintiff's assent, 
 will have the same effect as a levy — for instance, if it be taken by 
 way of a receiptor or by bond in place of the goods seized. Bank 
 of Orange County v. Wakeman, i Cowen, 46, and note. In Hoyt 
 V. Hudson, 12 Johns. 207, the action was against the constable, 
 who had seized the goods and taken a receiptor. It was held that 
 he could not levy again. That was like a sheriff suffering a vol- 
 untary escape. He cannot make recaption of his own head. In 
 Ex parte Lawrence, 4 Cowen, 417, the levy on personal property 
 still pending was held to take away the lien of the judgment on 
 the debtor's real estate, and so the creditor could not redeem. The 
 court say the levy extinguished the judgment, citing the previous 
 cases. In Jackson, ex dem. {*50o\ Merritt v. Bowen, 7 Cowen, 
 
EFFECT OF USE OF ONE ON RIGHT TO ANOTHER. 213 
 
 13, the same point was decided; the £. fa. having been returned 
 by direction of the creditor, and the levy thus discharged. Cor- 
 nell V. Cook, id. 310, 315, is a mere recognition of the general doc- 
 trine by Savage, Ch. J. In the case of Wood v. Torrey, 6 Wend. 
 562, the assignee of the judgment himself stood receiptor to the 
 sheriff; yet he was allowed to make a second levy as against the 
 defendant, because the latter had caused the eloignment of the 
 goods. * * * An actual payment to the sheriff would probably 
 be deemed a payment of the debt. The judge seems to concede 
 this in Ontario Bank v. Hallett, 8 Cowen, 192. That a payment 
 to the sheriff is a good discharge of the immediate defendant was 
 agreed both in Dyke v. Mercer, 2 Shower (Eng.) 394, and Clerk 
 V. Withers. [So held in Matter of Dawson, no N. Y. 114, 17 N. 
 E. 668.] 
 
 Thus, after all that has been said, we are to this day destitute 
 of any direct adjudication that levy alone absolutely extinguishes 
 or satisfies a judgment, as payment of the money would do. The 
 levy on a single sheep, according to the dicta in Salkeld and Ray- 
 mond, would satisfy a thousand pounds ; and so perhaps of several 
 detached dicta since that time. The gross absurdity of such a 
 rule has led the judges, in all the later cases, to speak in more 
 qualified terms ; such as that the goods must be of sufficient value 
 to satisfy the debt; and again, if the debtor eloign them, the levy 
 is not a satisfaction. Nor do I believe any judge would, at the 
 present day, hold the plea in Croke to be more than a temporary 
 [*50i] bar of further execution ; a mere ground for setting it aside 
 on motion. Would the judgment for the defendant on that plea 
 have barrfed an action of debt? Might not the plaintiff have re- 
 plied that the sheep sold for less than the judgment; and so re- 
 cover the balance ? To an action of debt, the plea could have been 
 nothing more in effect than a plea in abatement. 
 
 What then, after all, does the rule amount to ? Merely this : 
 that the levy is a satisfaction sub mode. It may operate as a sat- 
 isfaction, and must be fairly tried; but if it fail, in whole or in 
 part, without any fault of the plaintiff, he may go to his farther 
 execution. He must fairly exhaust the first; and while that is 
 going on, he can neither sue on the judgment, nor have another 
 
214 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 ft. fa., nor a ca. sa., nor can he redeem lands sold on another judg- 
 ment. The plaintiff may, by tampering with the levy himself, 
 lose his debt — as if he release property from arrest, which is suffi- 
 cient to pay the debt. Even a distress which answers only part 
 of the rent may generally be followed up by distraining again; 
 and might, I apprehend, by the common law. Vid. Bradby, and 
 cases before cited in connection with him. In the still higher 
 remedy by capias ad satisfaciendum, if the sheriff allowed the 
 debtor to escape without the previous consent of the plaintiff, the 
 latter might always, even before the declaratory statute of 8 and 9 
 Wm. 3, sue out a second ca. sa., though the sheriff could not re- 
 take on the first. Buxton v. Home, 1 Show. 174; Scott v. Pea- 
 cock, I Salk. 271. And, on an escape against the will of the sher- 
 iff, either he or the plaintiff might retake. Alanson v. Butler, 
 Siderfin (Eng.) 330. Thus it will be seen the law has never 
 adopted a harsh and blind rule, which will not yield to diversities 
 and exigencies as they arise. Indeed there are so many ways in- 
 vented by which goods may be got from the sheriff, sometimes by 
 fraudulent claims, sometimes by prior liens, and even by his own 
 negligence, that it behooves the courts to look into the rule now 
 urged upon us as working by a sort of magic to cut a man off from 
 his debt without the show or pretence of satisfaction. It is severe 
 enough on plaintiffs who are without fault, to require that they 
 should get their executions [*502] returned, without their debts 
 being held satisfied, because in the mean time the sheriff may have 
 relinquished goods levied on. Doing so the debtor has them to 
 himself. In the case at bar, Burke had his colts again. Some- 
 times goods are so covered up by previous liens that it does no 
 good to sell them, for none will buy. And shall the party, in such 
 case, be driven to an attempt which must be idle? Why may he 
 not have his execution returned and resort to his creditor's bill? 
 Indeed, we have been obliged to hold that he may. Evans v. 
 Parker, 20 Wend. 622. Who will say that if the plaintiff happen 
 to commit a mistake, and relinquish a levy upon a modicum, he 
 must therefore lose his debt ? If he have fairly and in good faith 
 closed his proceeding on execution, why not give him his ulterior 
 remedy ? 
 
EFFECT OF USE OF ONE ON RIGHT TO ANOTHER. 215 
 
 But was not the levy in question void by reason of Steven- 
 son's non-age? It appears that the town had elected him to the 
 office of constable ; and the justice had placed the execution in his 
 hands. The plaintiffs then directed him to go on and collect as 
 soon as might be. He levied ; but becoming satisfied that he had 
 already committed a trespass, he was too prudent to go any far- 
 ther ; he returned the process to the justice, and gave up the colts 
 to the defendant. The latter offered to pay him the money, but 
 he would not take it. Now it is said he was an officer de facto; 
 and that his acts bound the defendant and the plaintiff. He may 
 indeed have been an officer de facto {People, ex rel. Dobbs v. 
 Dean, 3 Wend. 438) ; and had he gone on and collected the money, 
 the defendant never disturbing him, nor the creditors in their pos- 
 session of it, the thing would have been well enough. But his 
 acts were valid only in respect to such third persons as were af- 
 fected by them, Viner's Abr. tit. Officer, G. 3, Id. G. 4, vol. 
 16, p. 113, Lond. ed. 8vo. 1793. I know the cases have gone a 
 great way. But they have stopped with preventing mischief to 
 such as confide in officers who are acting without right. People, 
 ex rel. Bush, v. Collins, y Johns. R. 549. The officer himself can- 
 not be protected, except in some such case as Wood v. Peake, 8 
 Johns. 69. There he was appointed by the judicial act of magis- 
 trates having jurisdiction [*505] in cases of vacancies happening; 
 and it was held that the officer's power could not be impeached 
 collaterally by showing that a vacancy had not happened. * * * 
 
 The result is plain. Stevenson was a trespasser.- And, after 
 the plaintiffs in the execution had been informed that he was an 
 infant, they, by urging him on, would have brought themselves 
 to participate in his peril. Then, taking the rule of satisfaction 
 by levy in all its general strictness, as contended for by the defend- 
 ant's counsel, what were the constable and plaintiffs to do ? Most 
 obviously, they stood within ain exception to the rule. Had the 
 money been collected by a sale of the colts, Burke might have re- 
 covered their value in trespass or trover ; and in this might, most 
 probably, have joined the plaintiffs, if he could show notice to 
 them of their constable's disability. Such a circuity would clearly 
 
216 
 
 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 have nullified the credit, and brought down a new execution on 
 the defendant. The upshot is, that this young man prudently 
 chose to do beforehand what the law would have forced him to 
 do in another form ; and, however stringent the rule of satisfaction 
 by levy, this case made a plain exception. Suppose the sheriff to 
 make an irregular arrest even on a ca. sa.; is the plaintiff to be cut 
 off from his debt because the officer lets the man go ? Goods of 
 a third person are levied on and discharged ; no one would pretend 
 that this discharges the debt. There can be no doubt that in such 
 and the like cases the creditor may relinquish the arrest, or levy, 
 without prejudice. 
 
 It follows that the second execution in the case at bar was 
 regular. The sale of the wheat on the ground, under that exe- 
 cution, was not impeached. Evidence was given of a dispropor- 
 tion in value between the wheat as it turned out and the sum due 
 on the execution. Admit this, and that the plaintiffs directed the 
 constable to sell it in preference to other property; Burke should 
 have paid the debt. The sacrifice, if it be one, seems to have been 
 of his own seeking. He sought to avail himself of a supposed 
 technical advantage, derivable from the levy on the colts. 
 
 The verdict should, therefore, be set aside; at least so modi- 
 fied as to find the property of the wheat in the plaintiffs. * * * 
 
 New trial granted. 
 
 Judge Cowen's masterly argument in this case has been cited with 
 approval hy almost every court in America. If it did not establish a 
 new rule, it caused the old one laid down in Mountney v. Andrews to be 
 better understood. The supreme court of Arkansas (Whiting v. Beebe, 
 12 Ark. 538), in speaking of this subject said: "The rule laid down In 
 Clerk V. Withers, was recognized by most of the American courts for 
 a long while. Thus in New York, Kent, C.J., in Denton v. Livingston, 
 as early as 1812 recognized and approved the decision In that case, 
 after which for 27 years, in a series of uniform decisions, it was ad- 
 hered to, until, in Green v. Burke, Cowan, J., for the first time in that 
 state, questioned the propriety of the rule in its unqualified sense, after 
 which Bronson, C.J., in People v. Hopson, 1 Denio, 574, distinctly an- 
 nounced a change in the rule, which has since been generally acqui- 
 esced in by most, indeed by all the courts of the United States, so far 
 as we are advised." In that case, Bronson, C.J., said, "If the broad 
 ground has not yet been taken, it is time it should be asserted, that a 
 mere levy on sufficient personal property, without more, never amounts 
 to a satisfaction of the judgment. So long as the property remains in 
 
EFFECT OF USE OF ONE ON RIGHT TO ANOTHER. 217 
 
 legal custody the remedies of the creditor will be suspended. He can- 
 not have a new execution against the person or property of the debtor, 
 nor maintain an action on the judgment, nor use It for the purpose of 
 becoming a redeeming creditor." For further discussion of the ques- 
 tion see Farmers & Mechanics' Bank v. Kingsley, 2 Doug. (Mich.) 379; 
 Kershaw v. Merchants' Bank, 7 How. (Miss.) 386; Fry v. Manlove, 60' 
 Tenn. (1 Baxter) 256; Reynolds v. Rogers, 5 Ohio, 174. 
 
 Abandonment of Levy. It has been held that a sale under fl. fa. 
 was not void by reason of a levy under a prior fi. fa. in the same suit 
 on other property, which was released with the creditor's consent, and 
 the writ returned without anything further being done with it. Wright 
 V. Young, 6 Ore. 87. But without proof of release of the first levy the 
 purchaser under the second writ was held to have no title, the right of 
 the creditor to abandon the levy and have a second writ, on returning 
 the first, being assumed. Friyer v. McNaughton, 110 Mich. 22, 67 N. W. 
 978. 
 
 The supreme court of Pennsylvania refused to set aside a testatum 
 fi. fa. issued after return of a fl. fa. showing levy and release. The court 
 say: "The hogs were levied on by the sheriff, and were released, for 
 what cause does not, nor is it necessary to appear, by the plalntifE'a 
 attorney, with directions, that the writ should not be executed." Dun- 
 can V. Harris, 17 Serg. & R. 436. 
 
 Yet the rule as generally stated is that if the creditor order a re- 
 lease without the consent of the debtor his claim is discharged, and 
 he has no further remedy. Certainly the creditor would not be per- 
 mitted to harass the debtor by seizing and releasing one thing after 
 another. Smith v. Hughes, 24 111. 270; Hunt v. Breading, 12 S. & R. 
 (Pa.) 37, 14 Am. Dec. 665. 
 
 The right of the creditor to have a new writ upon return of the 
 first, on which a levy has been made and nothing further done, must be 
 conceded, provided the return shows, or it is otherwise proven, that 
 any of the following facts exist: 
 
 1. That the first writ or levy was void, as in Green v. Burke, or 
 2, that defendant had no leviable interest in the property, either be- 
 cause it was exempt from process or because it belonged to a stranger; 
 for neither the plaintiff nor the officer is bound to persist in a mistaken 
 course, but only have the burden to prove the fact (Dixon v. White 
 Sewing M. Co., 128 Pa. St. 397; Bliven v. Bleakley, 23 How. Prao. N. 
 Y. 124), or 3, that defendant had rescued the property, or the officer 
 had allowed it to escape or had abandoned it without plaintiff's con- 
 sent, no loss thereby accruing to defendant (cases cited in Green v. 
 Burke; also, Llttlefield v. Ball, 103 Mich. 17; Howard v. Bennett, 72 111. 
 297), or, 4, that the plaintiff had ordered the release at defendant's 
 request or with his consent (Walker v. Commonwealth, 18 Gratt. (Va.) 
 13, 98 Am. Dec. 631), or, 5, that other creditors had obtained the prop- 
 erty or its proceeds (Bank of Pennsylvania v. Winger, 1 Rawle (Pa.) 
 295, 18 Am. 633, post 499), or, probably, 6, that the property had been, 
 destroyed by overwhelming calamity (compare Brice v. Carr, ante, 201, 
 but see cases cited in above opinion) ; and probably in many other cases. 
 
218 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 WHO MAY DEMAND AND CONTROL THE ISSUANCE AND 
 EXECUTION OF THE WRITS. 
 
 As to the right of clerks, sheriffs, etc., to use and control 
 •execution to obtain satisfaction of their fees, read again Wills v. 
 Chandler, ante, i86. As to a defendant enforcing contribution 
 by execution on the original judgment, re-read Stanley v. Nutter, 
 ante, i86. 
 
 STEELE V. THOMPSON, ADM'R. 
 62 Alabama 323. (1878) 
 
 ^.lability of Clerk for Refusal to Issue Remedial Process on Demand, 
 
 Form of Demand — Assignee's Right to Process, Proof of Title, 
 
 Waiver — Recording Assignment — Parol Assignment — 
 
 Demand by Attorney not of Record. 
 
 Action by Elijah S. Thompson, admr., against Jno. D. Steele 
 and others. From judgment for the plaintiff defendants appeal. 
 Affirmed. 
 
 This is an action against Steele and the sureties on his ofHcial 
 bond, as clerk of the circuit court for Greene county, for his re- 
 fusal to issue an alias execution. 
 
 Snedecor, Cockrell & Head, for appellants. 
 
 W. P Webb and Enoch Morgan, for appellee. 
 
 The Court by Brickell, C. /. * * * The first question is, 
 whether it is the duty of the clerk of a court in which a 
 judgment has been rendered to issue execution thereon, 
 at the verbal request of an attorney of the assignee 
 of the judgment, the assignment not appearing of record in 
 the court, and no written evidence of it being shown him, 
 nor the attorney having entered himself of record, as an at- 
 torney for the plaintiff in the judgment. Judgments, as well as 
 choses in action, are assignable. The assignment may not clothe the 
 assignee with the legal title, but if it is unqualified, it passes the 
 entire equitable interest, and is an irrevocable authority to employ 
 the name of the assignor in enforcing it, and collecting and receiv- 
 ing the money due thereon. The court in which the judgment 
 
WHO MAY HAVE AND CONTROL. 219 
 
 was rendered will protect the rights of the assignee, and will pre- 
 vent the assignor from interfering with his control over it. No 
 payment made to the assignor after notice of the assignment is 
 valid, and by no release or admission can he impair the equity of 
 the assignee. — Holland v. Dale, Minor (Ala.), 265; Gayle v. Ben- 
 son, 3 Ala. 234; 2 Brick. Dig. 153, § 312 ; Freeman on Executions, 
 § 21. The assignment may be by writing, or by parol, and either, 
 when founded on a sufficient consideration, passes the same rights, 
 and confers the same authority. No entry of it on the records of 
 the court is essential to its validity and operation, nor is there any 
 statute, or rule of the common law, requiring that such entry shall 
 be made. 
 
 An execution in civil actions, is the process by which the debt, 
 or damages, or other things recorded, and the costs adjudged, are 
 ■obtained. The clerk of the court is charged with the duty of 
 issuing the original, within a certain number of days after the 
 adjournment of the court. If satisfaction is not obtained by the 
 original, the party interested has the right to an alias, and a plu- 
 ries, until satisfaction is obtained. These writs it is the duty of 
 the clerk to issue on application ; and his failure is a breach of his 
 official bond, which binds him to the performance of all the duties 
 required of him by law. The application may be oral or written. 
 If the clerk deems it necessary for his protection, he may require 
 that it be reduced to writing. But if it is oral, and [*5^5] he 
 makes no objection on that ground when it is made, he cannot sub- 
 sequently excuse his failure to comply with it, on the ground that 
 it was not in writing. If he had objected, the cause of objection 
 would have been easily removed; but not then objecting, and 
 tacitly accepting the application as sufficient, it would be gross 
 injustice to suffer him to excuse his failure from which injury has 
 resulted, because of the manner of the application. So, if the 
 application is made by a party having the real interest in the judg- 
 ment, entitled to control it, though his interest and authority may 
 not appear of record, he may demand some evidence of the inter- 
 •€st or authority, if he doubts it. But if he makes no such demand 
 — if by his silence he recognizes the interest and authority, it 
 would approach a fraud, if he was heard subsequently to say in 
 
220 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 excuse for his failure to issue the writ, when injury had resulted, 
 that no evidence of the interest or authority was shown him. As 
 assignee of the judgment against Kirksey, the appellee had full 
 authority over it. It was his right to demand execution thereon in 
 the name of the plaintiff, and it was the duty of the clerk to comply 
 with the demand when it was made. There is no particular form 
 required, in which the demand should be communicated to the 
 clerk, and if there had been, the form could have been waived by 
 the clerk, and it was waived when he did not object to the form in 
 which it was made. The assignee may control the judgment 
 through an attorney, or an agent, and the demand or instructions 
 of the attorney or agent, are of the same force as if they had pro- 
 ceeded from him personally. 
 
 It is enough to say in reference to the remaining question, 
 there was no evidence the judgment was satisfied before the 
 demand of the issue of execution. On the contrary, the evidence 
 seems to us, undisputable, that it was unpaid, and the just infer- 
 ence is, the clerk knew the fact. 
 
 Let the judgment be affirmed. 
 
 That an assignee may have execution in the name of judgment 
 ereditor, but cannot have execution in his own name, see: Reid v. 
 Ross, 15 Ind. 265; Fiske v. Lamoreaux, 48 Mo., 523; Owens v. Clark, 73 
 Tex., 547. Intimated that clerk should indorse on the execution, that it 
 is for benefit of assignee, Reid v. Ross, supra, but see Owen v. Clark, 
 supra. That the purchaser may have execution without first bringing 
 a scire facias, see Corrlell v. Doolittle, 2 G. Greene, (Iowa) 385. 
 
 In Louisiana it has been held that one purchasing a judgment on 
 execution could not have execution on it, but only had a right to sue 
 the judgment debtor. Pluker v. Turner, 5 Martin, N. S. (La.) 707. 
 
 As a general rule, assignees of demands may make use of any 
 remedy to collect them that would be available to the assignor, includ- 
 ing attachment and garnishment. Fuller v. Smith, 58 N. C. (5 Jones- 
 Eq.) 192; Crippen v. Fletcher, 56 Mich., 388, 23 N. W. 56; White v. 
 Simpson, 107 Ala., 386, 18 South, 151. 
 
 Held that assignee of a claim could not attach on the ground that 
 the obligation was fraudulently contracted, for that is a personal mat- 
 ter between the original parties. Cheshire Provident Inst v. Johnston, 
 Fed. Cas. No. 2659. 
 
WHO MAY HAVE AND CONTROL. 221 
 
 STATE on Relation, &c. v. HEROD. 
 6 Blackford (Indiana) 444. (1843) 
 
 Execution — Right to Control — Duty of Sheriff — Liability for Disobedience 
 
 of Directions. 
 
 Case against Herod as sheriff of Bartholomew county, for 
 abandoning a levy under a /?. fa., on a judgment in favor the state 
 on the relation of Dietz, treasurer of said county, against J. Rid- 
 dick, after said judgment had been assigned to the persons for 
 whose use this action is being prosecuted. The defendant knew 
 of the transfer, but returned the execution unsatisfied upon the 
 order of Riddick, who had then become county treasurer. Judg- 
 ment for defendant, and plaintiff brings error. Reversed. 
 
 The Court by Sullivan, /. * * * -yy^g think the court mis- 
 took the law of this case. The board of commissioners having 
 transferred the judgment, the county had no further control over 
 it, nor the execution that issued upon it. The control of it be- 
 longed to the assignees ; and the sheriff, in obeying the directions 
 of Riddick, was guilty of a palpable violation of duty. A sheriff 
 who seizes property by virtue of a iieri facias, and does not sell 
 within a reasonable time, is liable for his non-feasance to the party 
 injured, unless he has an excuse known to the law. It will not 
 certainly be contended, that a neglect to sell at the request of one 
 who has no other interest in the execution than to defeat it, is such 
 an excuse. The judgment is reversed with costs, and the cause 
 remanded. 
 
 MORGAN V. PEOPLE. 
 59 Illinois 58. (1871) 
 
 Debt by the People of the State of Illinois for the use of 
 Thomas Lewis against Joel G. Morgan et al. on the official bond 
 of Morgan as sheriff of Alexander county. The defendant plead- 
 ed : i, non est factum; 2, that the sale was not ordered suspended ; 
 3, that he sold the property according to law by virtue of an exe- 
 cution against Lewis ; 4, that the attorney for the judgment cred- 
 itor directed him to sell. A demurrer to the third and fourth 
 pleas was sustained, and judgment found for the plaintiff on 
 issue and trial on the other pleas. Defendant brings error. 
 Affirmed. 
 
222 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 The Court by Thornton, j, * * * [*(5i] The declaration 
 avers that the sheriff had an execution in favor of Boyer against 
 Lewis, by virtue of which he levied upon certain shares of stock, 
 and advertised a sale on the 29th of October, 1867; that the 
 defendant in the execution paid off and satisfied the same on the 
 28th of October, except the costs, and that prior to the sale, the 
 plaintiff in the execution ordered a suspension thereof, and that 
 the sheriff refused to suspend, and sold stock of the value of 
 $S,ooo. * * * 
 
 An officer might proceed strictly in accordance with the law 
 governing the conduct of an execution in his hands, and yet be 
 guilty of the breach assigned. He may have an execution in due 
 form ; levy it upon property liable to seizure ; make proper adver- 
 tisement of a sale, and fully comply with the formal requirements 
 of the law ; yet, if he should sell in utter disregard of the instruc- 
 tions of the plaintiff, he incurs a liability to the defendant in the 
 execution. The third plea does not then traverse the material por- 
 tion of the breach. The fourth is no better than the third plea. 
 The breach is, that the plaintiff suspended the sale; the plea is, 
 that the attorney directed it ; but non constat that he may not have 
 violated the orders of the plaintiff. The execution is the process 
 of the plaintiff, and he has a right to control it without any inter- 
 ference on the part of attorney or officer. Reddick v. Adminis- 
 trators of Cloud, 7 111. (2 Gil.) 670. The demurrer was rightly 
 
 sustained. * * * 
 
 Judgment affirmed. 
 
 That ofllcers of court, or witnesses to whom fees are due, have not 
 the power to order execution on a judgment owned by another, see Ex 
 Parte Hampton, 2 G. Greene, (Iowa) 137. 
 
 DAUGHBRTY v. MOON. 
 59 Texas 307. (1883) 
 
 Power — Revocability — Execution — Sheriff's Liability for Disobedience of 
 
 Directions. 
 
 Action on a sheriff's official bond for not collecting an execu- 
 tion taken out and delivered to him by the plaintiff on a judgment 
 in favor of one Petrie against one Bohny ; Petrie having previous- 
 ly executed to plaintiff a power of attorney, authorizing him to 
 
WHO MAY HAVE AND CONTROL. 223 
 
 take out such execution, and agreeing to give him one-third of 
 what he could collect. The petition avers that the defendant 
 levied sufficient property to satisfy the execution, but later dis- 
 regarded plaintiff's directions and returned the execution, because 
 Petrie attempted to revoke the power of attorney and his attor- 
 neys of record ordered the writ returned. Demurrer to the com- 
 plaint sustained! Plaintiff brings error. Affirmed. 
 
 The Court by Stayton, /. * * * -^q interest whatever in the- 
 judgment was conveyed to the appellant by Petrie's power of 
 attorney to him ; it was not made to secure to the agent an exist- 
 ing right or obligation, but solely as a means by which Petrie was 
 seeking to collect his judgment, out of [*400] which, if collected 
 by him, the appellant was to receive as compensation a named 
 part of the sum collected. This case, in its facts, is very similar 
 to the cases of Hartley and Minor's Appeal, 53 Pa. St., 212; Black- 
 stone V. Buttermore, 53 Pa. St., 266, in which it was held that 
 powers were revocable. 
 
 The legitimate inference from the petition is that Good, Bow- 
 er and Coombes were the attorneys of record who had obtained 
 the judgment in favor of Petrie, and that the power of attorney 
 executed by Petrie on the 8th of July to the appellant was revoked 
 on the 6th of August succeeding. 
 
 Under such circumstances the law does not impose upon a 
 sheriff who has process in his hands the duty of determining at 
 his peril whether, in executing it, he shall obey the instructions 
 of the undoubted owner of the judgment under which the process 
 issued, or the instructions of his recognized attorneys, or shall 
 obey the instructions of a person who claims nothing more than 
 an agency, out of the exercise of which he expects to become 
 entitled to a portion of the proceeds of the property to be sold 
 under the process, and this where the power of such person is 
 denied by the owner of the judgment. 
 
 It is the duty of a sheriff who has process in his hands to 
 obey all lawful instructions of the owner of the judgment in its 
 execution, and he that assumes the right to control such officer, 
 if he be not the person in whose favor the judgment was ren- 
 dered, or his recognized attorney, must clothe himself with the 
 
;224 PROCESSES to obtain satisfaction of judgments. 
 
 legal or equitable title to it. Any other rule would lead to inter- 
 minable difficulty, and every sheriff would have to judge at his 
 peril as to the collateral rights of every person who might set up 
 .a claim. An execution is the process of the owner of the judg- 
 ment, and he has the right to control it even as against his own 
 attorney of record. 
 
 In the case of Crenshaw v. Harrison^ 8 Ala., 343, the rule is 
 thus expressed : "Generally speaking, the sheriff is a mere execu- 
 tive officer, and is bound to pursue the mandate of the process in 
 his hands, unless otherwise instructed by the plaintiff upon the 
 record, or by his attorney; beyond this, it is possible he may be 
 permitted to recognize the interest of a stranger, if that interest 
 is admitted by the plaintiff on the record, or his attorney. But 
 he is not authorized to constitute himself a judge to determine 
 questions of conflicting interests. To permit him to do so would 
 lead to the greatest abuse." Many authorities upon this subject 
 
 .are cited in Patton v. Hamner, 28 Ala., 618, 622. * * * 
 
 Affirmed. 
 
 ANDREWS V. MORSE. 
 12 Connecticut 444, 31 Am. Dec. 752. (1838) 
 
 -Attorney's Lien — Control of Execution — Effect of Payment to Judgment 
 
 Creditor. 
 
 Bill for injunction by Andrews to restrain Phelps, Hunger- 
 ford, and Cone from enforcing an execution against Andrews, 
 which was based on a judgment recently recovered against him 
 by Morse in an action in which Phelps, Hungerford, and Cone acted 
 as attorneys for Morse. Andrews had paid the amount of the 
 judgment to Morse after the execution was issued, and after he 
 received notice from the attorneys that their fees had not been 
 paid, that they demanded payment to them, that they claimed a lien 
 on the judgment for the amount of their fees, etc., and that 
 Morse had nothing but the judgment from which to pay them. A 
 temporary injunction was granted and the case reserved for the 
 -opinion of this court. Bill dismissed. 
 
 Ellsivorth, for plaintiff. 
 
 Hungerford, for defendants. 
 
 The Court by Church /. * * * In the case of Rumrill v. Hunt- 
 
WHO MAY HAVE AND CONTROL. 225 
 
 ington, 5 Day (Conn.) 163, Trumbull J., 1*447] in giving the opin- 
 ion of the court, says : "It is a general principle, that an attorney 
 has a lien for his services and expenses on the papers and securities 
 of his client, etc. But an attorney has no lien upon a judgment 
 obtained in favor of his client, which can vary or affect the rights 
 of a stranger." And we said in the case of Gager & al. v. Watson, 
 II Conn. 168, that "the attorney's lien upon judgments is subject 
 to the equitable claims of the parties in the cause, as well as to the 
 rights of third persons, which cannot be varied or affected, by such 
 lien." A claim of the attorney to this extent was recognized in the 
 following cases, decided by the court of common pleas and king's 
 bench. IVilkins et al. v. Carmichael, Doug. loi ; Mitchell v. Old- 
 Held, 4 Term Rep. 123 ; Read v. Dupper, 6 Id. 360 ; Ormerod v. 
 Tate,, I East 464. 
 
 In the case of Pinder v. Morris, 3 Caines (N. Y.) 165, the 
 supreme court of the state of New York held that, if the defend- 
 ant pay to the plaintiff the debt and costs, after notice from the 
 attorney, he pays in his own wrong ; and this is the principle estab- 
 lished or recognized in the last two cases cited from the English 
 books. This subject is well considered, by the same court, in the 
 case of Martin v. Hawks, 15 Johns. (N. Y.) 405; and the claim 
 of the attorney placed, as we think, upon its true ground. In that 
 case, the attorney is treated in regard to his lien, as the assignee 
 of a chose in action is considered, who takes it subject to all the 
 rights and equities attached to it. And this is considered the true 
 doctrine, by Lord Mansfield, in the case of Welsh v. Hole, Doug. 
 238, and by Lord Kenyon, in the case of Read v. Dupper, 6 Term 
 Rep. 361, and by the court of error's of the state of New York, in 
 the case of Nicoll v. Nicoll, 16 Wend. (N. Y.) 446. This princi- 
 ple is entirely consistent with the doctrine of this court in the cases 
 of Rumrill v. Huntington, and Gager et al. v. Watson. 
 
 If we apply this principle to the facts in this case, we cannot 
 fail to discover, that the claims of the attorneys here have not been 
 defeated; by any legal or equitable rights of others; but exist as 
 perfectly against Andrews, the execution debtor, who prosecutes 
 this injunction, as against their own client, Morse. The execution 
 was delivered, by the attorneys, to the officer, with a notice of their 
 
 15 
 
226 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 lien, and with directions to collect ['*448] and pay over its proceeds 
 to them. And the same notice was given to the debtor in the exe- 
 cution, before any thing had transpired, changing the relative rights 
 or duties of any of the parties interested, and before any thing had 
 been paid on the execution. Under these circumstances, this 
 debtor had no equitable claims. He paid with full notice of the 
 attorneys' prior claim, and in defiance of it. In this, his conduct 
 was collusive and fraudulent; and the payment was made in his 
 own wrong. 
 
 We shall advise the superior court, that the injunction in this 
 case ought to be dissolved ; and that the plaintiff take nothing by 
 his bill. 
 
 In this opinion the other judges concurred. 
 
 Bill to be dismissed. 
 
 CLARKSON V. WHITE and ARNOLD. 
 4 J. J. Marshall (Kentucky) 529, 20 Am. Dec. 229. (1830) 
 
 Execution without Authority — Burden of Proof — How Objection Avail- 
 able — Who Liable — Ratification. 
 
 Bill by Clarkson, as a surety on a replevin bond, against 
 White and Arnold, to enjoin a fieri facias on the bond and for 
 other relief. From a decree dismissing the bill, complainant ap- 
 peals. Affirmed. 
 
 The injunction was asked because Arnold, the clerk, issued 
 the execution without authority from Mrs. White, the judgment 
 creditor. 
 
 Mills and Brown, for plaintiff. 
 
 Hanson, for defendant. 
 
 The Court by Robertson, C.J. * * * There was no sem- 
 blance of equity against Mrs. White. She had done nothing 
 which could have the effect of releasing the plaintiff from the 
 judgment ; and the last execution was credited with all except the 
 interest. [*53o'] Nor does it appear that Arnold acted without 
 authority. But if he did so act in issuing the execution, its en- 
 forcement should not, on that ground alone, be enjoined, because 
 Mrs. White, the creditor, approved and ratified the act of the clerk 
 in issuing the execution. As against Arnold, the clerk, there is no 
 
WHO MAY HAVE AND CONTROL. 227 
 
 equity in the bill. i. Because his act (in issuing the execution) 
 was not illegal. 2. If it be illegal, the remedy is exclusively legal 
 as against him. * * * 
 
 Wherefore, the decree dissolving the injunction and dismiss- 
 ing the bill is affirmed. * * * 
 
 SOWLES and WIPE v. HARVEY. 
 20 Indiana 217, 83 Am. Dec. 315. (1863) 
 
 Execution — Right to Issue — Validity of Sale. 
 
 Suit to set aside a sheriff's sale. Demurrer to the complaint 
 sustained. Plaintiffs appeal. Affirmed. 
 
 The complaint alleges that the plaintiffs recovered a judgment 
 for $575, Feb. 1861, in the Hendricks circuit court; that the clerk 
 of that court issued an order of sale thereon without plaintiffs' 
 orders ten days after the adjournment of that term ; that the sheriff 
 thereon levied land worth $600, being all of the property of the 
 judgment debtor, and sold it on the highest bid, for $165, to the 
 debtor's father-in-law, the defendant herein, who paid the amount 
 of his bid to the sheriff and received a deed, April, 1861 ; and that 
 plaintiffs had tendered him the amount he paid, and demanded a 
 conveyance of the property. There is nothing to show that the 
 defendant was not a bona Me purchaser. The complaint prays 
 that the sale be set aside. 
 
 The Court by Perkins, /. * * * The clerk erred in the case, 
 in issuing the order of sale without the direction of the judgment 
 plaintiffs or one of them ; but a bona Me purchaser would not be 
 prejudiced by the error. He would have the benefit of the pre- 
 sumption that the officer had done his duty. Lewis v. Phillips, 17 
 Ind. 108 [79 Am. Dec. 457] . The difference between the sum bid 
 for the property at the sale and its actual value, was not so great 
 as per se to render the sale void. Swope v. Ardery, 5 Ind. 213. 
 Davis's Ind. Dig. 537. 
 
 Per Curiam. — The judgment is affirmed ivith costs. 
 
228 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 6. AGAINST WHOM THE WRITS MAY BE ISSUED. 
 
 Under this head we will, for review, inquire again as to 
 whether those against whom attachments are sought must be ab- 
 sconding, concealed, or fraudulent debtors, and the- like, and what 
 constitutes each. Therefore, prepare again on pages 147 to 176, 
 inclusive. 
 
 DILLON V. BURNHAM. 
 43 Kansas TJ, 22 Pac. 1016. (1890) 
 
 Presumption of Regularity — Judgment against Infant — Right to Exe- 
 cution. 
 
 Action by Burnhara, Hanna, Hunger & Co. against Henry J. 
 Dillon. From judgment for plaintififs on special verdict defend- 
 ant brings error. AfHrmed. 
 
 Datvson Smith, for appellant. 
 
 W. A. McCartney, J. M. Thomas and /. D. McFarland, for 
 appellees. 
 
 The Court by Johnston, J. There are two questions presented 
 for our consideration: First, was Dillon bound by the contract 
 which he made? And second, could a judgment based thereon be 
 enforced against his property? In the absence of the evidence, 
 we must assume that there was sufficient testimony to sustain the 
 special findings and general verdict of the jury. From the findings, 
 it appears that Dillon was only twenty years of age when the goods 
 were purchased and the contract in question was made by him, and 
 that he was still a minor when the trial occurred. * * * We think 
 the contract binding upon Dillon, and that the court ruled cor- 
 rectly in rendering judgment against him. It is not necessary 
 to follow counsel for plaintiff in error in his argument as to the 
 status of minors under the common law, as we must be governed 
 by our statutes. * * * 
 
 The second point raised by plaintiff in error must also be 
 overruled. Where the contracts of a minor are binding upon him 
 and may be reduced to judgment, they certainly may be enforced 
 by appropriate writs or proceedings. It would be idle to 
 
AGAINST WHOM THEY MAY BE ISSUED. 229 
 
 authorize the enforcement of a contract and the rendition of a 
 judgment if such judgment could not be made effective when 
 given. As the courts have authority to require a minor who can- 
 not disaffirm to appear and answer, and to be bound by judgment 
 rendered against him, it follows that, in the absence of statutes to 
 the contrary, writs of attachment, or other appropriate proceed- 
 ings to require a satisfaction of the judgment, may be obtained as 
 in other cases. Freeman on Executions, § 22. The judgment 
 
 of this district court will be 
 
 Affirmed. 
 
 Scudder, J. "It was next objected, that the writ should have been 
 quashed on the defendant's motion, because It could not be Issued 
 against a female debtor. This point was based upon Pulllnger v. Van 
 Bmburgh, 1 Harr. [N. J.] 457. * * * As the case referred to held that 
 a female debtor could not be proceeded against by writ of attachment, 
 because she could not be held to ball in a civil suit, females being ex- 
 empt from imprisonment or arrest for debt, it evidently appears that 
 the legislature, soon after this decision, and with it in mind, relieved 
 females from the liability to arrest under proceedings in attachment, 
 and, in the same statute, enacted, that a writ of attachment might be 
 be issued against them." Davis v. Mahany and Grover, 38 N. J. L. (9 
 Vroom) 104. 
 
 It has been held that "if a personal suit can be maintained at law 
 against a lunatic, there is no reason why a proceeding against his 
 estate by attachment Is not valid." Weber v. Weitling, 18 N. J. Eq. (3 
 C. B. Green), 441. 
 
 It appearing that the defendant was insane when he left the state, 
 attachment against him upon the ground of his departure will be set 
 aside. Chambers & McKee Glass Co. v. Roberts, 4 App. Div. (N. Y.) 20. 
 
 Colt, J. "The property of a person under guardianship may be 
 taken on execution issued against him. It may, therefore, be attached 
 on mesne process in all the usual modes, including the trustee process. 
 The remedy to recover a debt against the ward by suit upon the guar- 
 dian's bond is not exclusive." Simmons v. Almy, 100 Mass. 239. 
 
 WILDER V. ELDRIDGE. 
 17 Vermont 226. (1845) 
 
 Infant Garnishee — As Debtor — As Custodian — Effect of Payment or 
 Delivery after Service — Appointing Guardian Ad Litem — 
 Becoming of Age Before Trial. 
 
 Trustee process by Wilder & Snow against Truman S. Eld- 
 ridge, principal debtor, in which Daniel Wright and Samuel S. 
 Wright were summoned as trustees. Plaintiffs except to judg- 
 ment discharging S. S. Wright. Affirmed. Plaintiff sought to 
 
230 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 charge S. S. Wright because he had purchased a horse of Eldridge 
 for $75 and given his note in payment. 
 
 Woodbridge and /. Pierpoint, for plaintiffs. 
 
 E. D. Barber, for trustee. 
 
 The Court by Bennett, J. The only question in this case 
 arises upon the disclosure of Samuel S. Wright. It is argued, 
 that, upon general principles, a minor can in no case be charged 
 as trustee by means of the trustee process. It would seem, if there 
 is an attempt to charge him upon the ground of having in his 
 hands the credits of the principal debtor, that the plea of infancy 
 should avail the trustee, equally as if sued directly by the principal 
 debtor ; but if the minor is liable to the principal debtor for neces- 
 saries, no good reason is perceived why he may not be charged as 
 his trustee, to the extent of such liability, by means of the trustee 
 process. 
 
 So, if he has the specific goods and chattels of the principal 
 debtor in his hands, we see no sufficient reason why they should 
 not be reached by the trustee process. The statute provides that 
 every person, who has the goods, effects and credits of the prin- 
 cipal debtor intrusted to, or deposited in, his hands, may be sum- 
 moned as trustee, and the goods, effects and credits be attached, 
 and held to respond the judgment, that shall be recovered against 
 the principal debtor. The general words of the statute include mi- 
 nors, though it is true the court might, upon sufficient reasons, re- 
 strain [*^jo] these general words, by holding that minors did not 
 come within the equity of the statute. 
 
 But we do not apprehend that there is any good reason for 
 restraining these general words. The attaching creditor takes the 
 place of the owner of the property attached in the hands of the 
 trustee. No new liability is imposed upon the trustee, and he has 
 only to deliver the property to the officer, who shall have the execu- 
 tion, instead of delivering it to the principal debtor. If he refuses, 
 he is liable to the attaching creditor, to the value of the goods. The 
 minor would be liable, to the extent of the value of the goods, to 
 the owner of them, provided there had been no attachment. In 
 such case the minor stands in the nature of a trustee, and holds the 
 goods as such, and should, upon common principles, be held liable. 
 
AGAINST WHOM THEY MAY BE ISSUED. 231 
 
 But a minor, when sued, is not capable of conducting the suit ; 
 and it is as necessary that he should defend by guardian in a trus- 
 tee process, so long as he is a minor, as in other cases. To give 
 the trustee process the effect of an attachment of the goods, against 
 the minor, from the date of the service, his guardian, if he had one, 
 should have been cited in. If this is not done, the plaintiff must, 
 at his peril, apply to the court to have a guardian ad litem ap- 
 pointed. But in the present case, as the trustee became of age 
 before the disclosure was made, there was, at that time, no occasion 
 for the appointment of a guardian. The property, however, had, 
 before this, and while the trustee was a minor, been given up to 
 the principal debtor, in pursuance of the original contract. 
 
 Had the trustee, in this case, been of age, and had elected, 
 after the service of the trustee process, to rescind the contract and 
 demand his note, it would seem as if he would thereby be excused 
 from delivermg the property to the principal debtor, but should, 
 from that time, treat it as in the custody of the law. But as, in this 
 case, the property was given up by the trustee, while under age, 
 though after the service of the process, and while he was incapable 
 of conducting his defence, and, in contemplation of law, not under- 
 standing his rights, or liabilities, we cannot consider the attach- 
 ment, at that time, of such binding force against him as to render 
 him liable at all events as trustee in this action. [*23i] 
 
 The judgment of the county court, discharging this trustee, is 
 
 Affirmed with costs. 
 
 KENISTON V. LITTLE. 
 30 New Hampshire 318, 64 Am. Dec. 297. (1855) 
 
 Liability of Sheriff Acting under Process — Judgments against Adnninis- 
 trators — Descriptio Personae — Wliose Property Liable. 
 
 An action of trespass byKeniston against Little, deputy sheriff 
 of Merrimac county, for taking certain cattle of the plaintiff under 
 the execution mentioned in the opinion. Case submitted to this 
 court on agreed facts. Judgment for defendant. 
 
 Butterfield & Hamlin, for the plaintiff. 
 
 TV. B. Bryant, for the defendant. 
 
 The Court by Bell, J. The defendant, a deputy sheriff, took 
 certain chattels, property of the plaintiff, upon an execution in fa- 
 
232 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 vor of Knowlton against him, and sold them, and applied the pro- 
 ceeds in discharge of the execution. The plaintiff brings against 
 the officer an action of trespass, and the question is, if the latter 
 can justify himself under this execution. 
 
 And first, it is said, in behalf of the plaintiff, that the judg- 
 ment recited in the execution being "against Benjamin C. Keniston 
 of, etc., administrator of the estate of James M. Knowlton, late of, 
 etc., deceased," is a judgment against the plaintiff, in his capacity 
 of administrator, and the precept to cause the sum recovered "to be 
 levied of the goods, [^322] chattels, or lands of the said debtor, 
 is limited to the goods, chattels or lands of the debtor, as adminis- 
 trator of Knowlton. If this view is correct, then it is clear that 
 the officer cannot justify a levy upon the private estate of the ad- 
 ministrator, because his precept gave him no authority to levy 
 upon anything but the estate of the intestate. 
 
 At common law, the judgment de bonis testatoris is rendered 
 "that the said John recover against the said' Jane, executrix as 
 
 aforesaid, pounds, etc., to be levied of the goods and 
 
 chattels, which were of the said J. D., deceased, at the time of his 
 death, in the hands of said Jane to be administered." 5 Went. PI. 
 414; Imp. P. C. P. 483; 4 Lill. Ent. 475, 478, 504; 10 Went. PI. 
 458; Piper v. Goodwin, 23 Me. 251; Atkins v. Sawyer, i Pick. 
 (Mass.) 353 ; Merritt v. Seaman, 6 N. Y. (2 Seld.), 168. A simi- 
 lar form of entry is used in case of a judgment against an heir. 2 
 Lill. Ent. 504. And a like form was adopted in the case of a judg- 
 ment to be levied upon property attached, where a subsequent 
 bankruptcy had been pleaded. Kittridge v. Warren, 14 N. H. 509. 
 
 By the case of Pillsbury v. Hubbard, 10 N. H. 224, it appears 
 that such has been the practice in this state, and though a loose and 
 negligent practice had sprung up in one or two counties, of render- 
 ing the judgment against the executor or administrator generally, 
 yet the learned chief justice declares the practice to be unfounded 
 and without authority. The writ of execution should recite the 
 judgment as "to be levied of the goods, etc., of the deceased," and 
 the precept should be to levy on the goods, etc., of the deceased. 2 
 Lill. En. 584, 586; 10 Went. PI. 321, 322. 
 
 Though a plaintiff is described as executor or administrator, 
 
AGAINST WHOM THEY MAY BE ISSUED. 233^ 
 
 yet if it is not alleged that the promises were made in the life- 
 time of the testator, or were made to him,' or were made to the 
 plaintiff as administrator, the action will be [*J^j] regarded as 
 brought in his individual, and not in a representative character. 
 Warden v. iVorthington, 2 Barb. Sup. (N. Y.) 368; Henshall v. 
 Roberts, 5 East (Eng.) 150; Christopher v. Stockholm, 5 Wend., 
 (N. Y.) 36; I Chit. PI. 151. 
 
 In Merritt v. Seaman, 6 N. Y. (2 Seld.) 168, the declaration 
 commences : C. M., executor, etc., of J. S., deceased, complains, 
 etc., without any other indication that the suit was brought by him' 
 in a representative character, and judgment was rendered against 
 the plaintiff, upon a set-off, "to be levied of the goods of the testa- 
 tor, in his hands to be administered," and it was held that this- 
 mode of describing the plaintiff as executor, was to be regarded as 
 merely a descriptio personae, in no respect changing the rights of 
 the parties, and that the action being brought in the plaintiff's in- 
 dividual character, a judgment against him in a representative 
 character was erroneous. 
 
 We, therefore, regard this execution as running against the 
 plaintiff, in his individual character, and his own goods and estate 
 were liable to be levied upon under it. 
 
 The principle is settled that a sheriff has nothing to do with 
 the propriety of the process under which he acts, provided the 
 court has jurisdiction, and the process is regular upon its face. 
 State V. Weed, 21 N. H. (i Foster) 262. 
 
 The jurisdiction of the court of common pleas to issue an 
 execution for costs is not denied. But it is contended that an exe- 
 cution for costs against an administrator should run not against 
 the goods of the administrator himself, but against the goods of 
 the deceased, in his hands to be administered. If this is a propo- 
 sition universally true and without any exception, it might furnish 
 ground for an argument that the execution must have been issued, 
 in this case, either erroneously or irregularly. If otherwise, if 
 there is any case in which an execution may properly issue against 
 the proper goods of an administrator, then the execution here is 
 well enough, so far as the officer is concerned. He is not bound 
 
234 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 to look beyond the face of the execution, and if there is [*5^-/j 
 nothing there which shows it to have issued improperly, he is not 
 bound to inquire further. 
 
 The case of Pillsbury v. Hubbard, before cited, is a direct au- 
 thority that where the cause of action is alleged to have arisen after 
 the death of the testator or intestate, and the executor or adminis- 
 trator might sue in his own right, without describing himself as 
 such, judgment may well be entered against him de bonis propriis, 
 the allegation that he was executor or administrator being con- 
 sidered in such case as a descriptio personae. 
 
 So that upon the face of the execution there was nothing that 
 indicated any error or irregularity. 
 
 If the process here did issue either erroneously or irregularly, 
 the court having jurisdiction, it is not void, but is at most voidable. 
 If erroneous, a party even may justify under it, whatever was done 
 by virtue of it while it was in force ; and if irregular, it is a justi- 
 fication for the party till set aside. Much more must it be so in 
 the case of an officer. See Blanchard v. Goss, 2 N. H. 491, where 
 this subject is ably discussed by Richardson, C. J. 
 
 Judgment for the defendant. 
 
 GRAIGHLE v. NOTNAGLE. 
 I Peters (U. S. C. C.) 245, Fed. Cas. No. 5,679. (1816) 
 
 Garnishment, Attaching Goods in Hands of Plaintiff — Action by Man 
 
 Against Himself — Necessity of Three Parties — Necessity of 
 
 Taking All Statutory Steps— Why — English Decisions. 
 
 Lezvis, Ingersoll, J. R. Ingersoll, and C. J. Ingersoll, for 
 plaintifiE. 
 
 Mr. Raivle, for defendants. 
 
 Action of debt, in the United States circuit court for the dis- 
 trict of Pennsylvania, by Graighle of France, against Notnagle and 
 Montmollin of Philadelphia. The defendants pleaded that since 
 the last continuance of this action, a writ of attachment, issued 
 out of this court in an action by Montmollin against the plaintiff 
 herein, had been levied on the money and effects sued for in this 
 action. The plea prays judgment that the writ in this action be 
 quashed. To this plea there was a general demurrer. Demurrer 
 
AGAINST WHOM THEY MAY BE ISSUED. 235 
 
 ■overruled. The question argued at the bar was whether a creditor 
 •can lay an attachment in his own hands. 
 
 The Court by Washington, J, * * * The ordinary proceed- 
 ings in foreign attachment commence with the writ of attach- 
 ment; 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 attor- 
 ney, unless, under the provisions of the act of assembly of Penn- 
 sylvania, 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 
 T)lead 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, judg- 
 ment 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 ; cal- 
 culated to draw from him a [*247\ 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 
 
236 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 hands the property of his debtor, from the benefit of the attach- 
 ment law, was not in the contemplation of the legislature. The 
 law is remedial, and the worcjs 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 non-resident 
 should be one who has in his hand the funds out of which that sat- 
 isfaction may be had. There would seem to be a manifest injus- 
 tice, 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 con- 
 struction 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 de- 
 fendant is in his hands ; and as he cannot himself decide between 
 the contending parties, he cannot 1*248] 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 neces- 
 sary to arrive at the proposed object. Because the effect of the 
 suit might be defeated, unless the plaintiff were armed with co- 
 ercive measures against the garnishee ; he certainly cannot be re- 
 quired 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. * * * 
 [*24.p] * * * 
 
 That a creditor may lay a foreign attachment in his own hands. 
 
AGAINST WHOM THEY MAY BE ISSUED. 237 
 
 according to the custom of London, is clearly established. Para- 
 more V. Pain, Cro. Eliz. (Eng.) 598; see also Coke's Entries, 
 139 b. * * * [^-^i-^] * * * 
 
 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 proceed- 
 ing. It is of no consequence to the defendant whether a trial be 
 had or not, for 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, with- 
 out 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 
 [*^55] 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 not only fulfill the spirit and in- 
 tention 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. 
 
 This is tlie leading American case on the subject, and is supported 
 by the weight of authority; but contrary decisions will be found in 
 Khode Island, New Hampshire and Massachusetts. Knight v. Clyde, 12 
 R. I. 119; Hoag v. Hoag, 55 N. H. 173; Belknap v. Gibbons, 13 Mete. 471. 
 IFor review of decisions see Rood Garnish. § 39. 
 
238 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 GARDNER v. MOBILE & NORTHWESTERN R. CO. 
 102 Alabama 635, 48 Am. St. 84, 15 South, 471. (1892) 
 
 Bill to Quiet Title — Sale on Execution Against Ry. Co. — What Property 
 Liable to Process — Exemption, Duration, Why — Fee or Ease- 
 ment, Importance, Burden of Proof — Power of Corpora- 
 tions to Hold — Attorney's Power to Assign Judgment, 
 Statutory Form — Ratification — Execution in 
 Name of Assignee — Effect. 
 
 Bill in equity by the Mobile & Northwestern Railroad Co, 
 against F. G. Ruffin, F. G. Bromberg, Lucy R. Gardner, individu- 
 ally, and as the administratrix of W. H. Gardner, deceased, and 
 Mary Henry, individually, and as the executrix of Thomas Henry, 
 deceased, to remove cloud from the title to certain lands. From a 
 decree for complainant, defendants appeal. Reversed. 
 
 Overall, Bestor & Gray, for Mrs. Gardner. 
 
 Austin and Pillans, Torrey & Hanaw, for complainant. 
 
 The Court by Stone, C. J. The bill was filed to vacate a sale 
 of lands made by the sheriff of Mobile county, under executions 
 which were issued from the circuit court of that county, founded 
 on judgments rendered against the appellee. It seeks a cancella- 
 tion of the conveyance made by the sheriff to the purchaser, and 
 of subsequent conveyances dependent on it, and prays an injunc- 
 tion to prevent alleged trespasses on the lands. The validity of the 
 sale by the sheriff is impeached on the ground of alleged 1*642] 
 irregularities in the issue of the executions ; the payment of one 
 of the judgments ; and because the lands were the right-of-way of 
 the appellee, and, as is asserted, not the subject of levy and sale 
 under executions at law. 
 
 Prior to the issue of the executions under which the sales were 
 made, the judgments had been assigned. The assignments were 
 not made in the mode prescribed by the statute, (Code, § 2927) ; 
 and the mandate of the executions was, that the moneys made 
 should be accounted for to the assignee of the judgments. In all 
 other respects the executions corresponded to the judgments. 
 Judgments have the assignable quality of choses in action, and may 
 be transferred by parol or in writing. If a statutory mode of as- 
 signment is provided, it is cumulative, in the absence of express 
 words inhibiting other modes of assignment. 2 Freeman on 
 
AGAINST WHOM THEY MAY BE ISSUED. 23^ 
 
 Judgments, § 422. The assignment, however made, passes an 
 equity which courts will recognize and protect. It entitles the as- 
 signee to sue on the judgment or to issue execution thereon in the 
 name of the assignor, and is beyond his control or interference. 
 2 Brick. Dig. 153, §§ 308-17. The statute to which we have re- 
 ferred does not lessen the assignable quality of judgments, nor 
 limit the mode of assignment. It is cumulative, entitling the as- 
 signee, if the assignment is made in the mode provided, to sue on 
 the judgment, or to the issue of execution thereon for his use, ini 
 the name of the plaintiff whether living or dead. It in this way 
 dispenses with the necessity of revivor in the event of the death, 
 of the plaintiff; and, under the operation of § 2595 of the Code,., 
 he may make himself the sole party on the record. The error in 
 the mandate of the executions is, at most, a mere irregularity, in- 
 capable of injury to theappellee, and because of such irregularity 
 a court of equity will not interfere to vacate a sale made by the 
 sheriff. 2 Freeman on Executions, § 310; Ray v. Womble, 56 
 Ala. 32 ; Lockett v. Hurt, 57 Ala. 198. 
 
 One of the judgments, the one, it is asserted, that was paid 
 prior to the issue of execution thereon, seems to have been assigned 
 by the attorney of the plaintiff therein. Without special author- 
 ity, an attorney at law cannot assign a judgment he may have ob- 
 tained for his client. The authority, or a ratification by the client, 
 1*643] may be inferred from circumstances. The assignment was 
 made many years before the issue of the last execution, and so far 
 as is now shown,, its validity has never been questioned by the 
 client. The silent acquiescence for years by the client is evidence 
 that the attorney had authority to make it, or of a subsequent rati- 
 fication. The contention of payment of this judgment was not 
 ascertained by the chancellor to be true, and we find no reason to- 
 doubt the correctness of his conclusion. 
 
 The other judgment, rendered in favor of Burgess, prior to 
 the issue of the execution under which the levy and sale were 
 made, had become dormant; more than ten years having elapsed 
 after the teste of the last preceding execution. The execution was 
 irregularly issued and was voidable, but it was not void, i Free- 
 man on Executions, §§ 28-30 ; Sandlin v. Anderson, 76 Ala. 405 ; 
 
:240 PROCESSES to obtain satisfaction of judgments. 
 
 Steele v. Tutwiler, 68 Ala. 107. On a proper application, season- 
 ably made, the court of law would have quashed it. McCall v. 
 Rickarhy, 85 Ala. 152. Such an application must have been made 
 with reasonable diligence; unexplained laches would have been 
 fatal to it. Bank of Genesee v. Spencer, 18 N. Y. 150; Cowan v. 
 Sapp. 74 Ala. 44 ; Ponder v. Cheeves, 90 Ala. 117. 
 
 More than two vears elapsed after the issue of the execution 
 and the lew and sale, before the filing of the present bill. 
 Whether the court of law would, at that day, have entertained an 
 application to vacate the sale, because of the irregularity in the is- 
 sue of the execution, it is not necessary to consider. Conceding 
 that court would have intervened, the jurisdiction was exclusive. 
 The rule is very general, that a court of equity will not interfere 
 to vacate a sale under legal process, on account of irregularity in 
 the issue of process, or in its execution ; but, as is properly said, 
 "the application ought to be made to the court issuing the writ, 
 and if made elsewhere ought not to be entertained." There must 
 be accident, surprise, mistake, or fraud, or some fact or circum- 
 stance affecting the sale itself, and not resting on the irregfularity 
 of the process, or irregularity in its execution, before a court of 
 equity will take jurisdiction to vacate it. There is not in this case 
 averment or evidence of either of these conditions. 2 Freeman 
 on Executions, § 310 -jRay v. Womble, 56 Ala. 32 ; Lockett v. Hurt, 
 57 Ala. 198; Cowan v. Sapp, 74 Ala. 44. [*644] 
 
 The more important question is, whether the lands were the 
 rsubject of levy and sale under the executions; and this depends, 
 materially, upon the quality of the estate residing in the appellee. 
 The allegation of the original bill is, that they were acquired for a 
 right-of-way, under the charter of the appellee, "by purchase, 
 condemnation and otherwise." 
 
 The general law providing for the creation and regulation of 
 railroad corporations,, approved December 29, 1868, under which 
 the appellee was incorporated and organized, contains the grant 
 from the state of the franchises and powers it claims to have 
 acquired. It did not confer the power of acquiring lands by pro- 
 ceedings in condemnation, or otherwise than by gift or purchase; 
 and did not limit the estate or interest which could be acquired. 
 
AGAINST WHOM THEY MAY BE ISSUED. 241 
 
 The act of March i, 1871, passed after the creation and organiza- 
 tion of the appellee, conferred the power to resort to compulsory 
 proceedings in condemnation for the taking of lands. — Acts, 1870- 
 71, pp. 55-60. 
 
 There is no written evidence of the title of the appellee intro- 
 duced; no other than vague and indefinite parol evidence, which 
 seems to have been received without objection, indicating that 
 parts of the lands were acquired by condemnation, and other parts 
 by gift or purchase, not distinguishing between them. The grant 
 of power to acquire, hold and convey lands for a right-of-way, or 
 other uses, by the law of 1868, is general and extensive. The 
 third section confers power to "acquire and convey at pleasure, all 
 such real and personal estate, as may be necessary and convenient 
 to carry into effect the objects for which it was created ;" and the 
 15th section provides for the acquisition, by purchase or gift, of 
 any lands in the vicinity of the road, or through which it may 
 pass, so far as may be deemed convenient or necessary to secure 
 the right-of-way, or such as may be granted to aid in the construc- 
 tion of the road, and to hold and convey the same in such manSner 
 as the board of directors may prescribe. Acts, 1868, pp. 462-466. 
 
 It is an incidental power of every corporation, unless 
 restrained by statute, to purchase and alien lands necessary for 
 the exercise of its corporate powers, and this, "independent of 
 positive law" conferring such power. Says Ch. Kent: "All 
 corporations have an absolute jus disponendi of lands and chattels, 
 neither limited as to 1*645] objects or circumscribed as to quan- 
 tity." — 2 Kent, 281. And railroad corporations may take a fee in 
 lands although corporate existence is limited to a term of years. 
 I Morawetz Corp., § 330 ; Davis v. M. & C. R. R. Co., 87 Ala., 
 633 ; Nicoll V. N. Y. & E. R. R. Co., 12 N. Y. (2 Kernan) 121. 
 
 What was the quantity and quality of the estate the appellee 
 had in the lands ? The power to acquire an estate in fee, by pur- 
 chase or gift, for a right-of-way, or for other uses, was very broad 
 and general, and, according to the allegations of the bill and the 
 scant evidence introduced, the lands were acquired, certainly in 
 part, by the exercise of this power. If an easement only — the 
 right to construct, maintain and operate a railroad in and upon 
 
 16 
 
242 
 
 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 them — was acquired, it is not possible to ascertain the parts sub- 
 ject to the easement, distinguished from the parts in which a fee 
 was acquired. As the case is presented, the more probable infer- 
 ence is, that the appellee had an estate in fee in the lands, and not 
 a mere easement. If the latter is the nature or character of its 
 estate or interest, entitling it to hold in exemption from levy and 
 sale, the facts should have been shown by certainty of pleading 
 and satisfactory evidence. 
 
 As a general rule the property of all private corporations is 
 as subject to legal process for the satisfaction of debt as is the 
 property of natural persons. An exception obtains, however, 
 when the corporation is created to serve public purposes charged 
 with public duties, and is in the exercise of its franchise and in 
 the performance of its duties. Then, on considerations of public 
 policy, without regard to the nature or quality of the estate or 
 interest of the corporation, according to the weight of authority, 
 such property as is necessary to enable it to discharge its duties to 
 the public, and effectuate the objects of its incorporation, is not 
 subject to execution at law. The only remedy of a judgement 
 creditor is to obtain the appointment of a receiver, and the seques- 
 tration of its income or earnings. — i Freeman on Executions, § 
 179, and authorities collected in notes; 2 Morawetz Corp., § 1125; 
 Gue V. Tide Water Co., 65 U. S. (24 How.) 257; Overton Bridge 
 Co. V. Means, 33 Neb. 857; s. c. 2q Am. St. 514, and authorities 
 cited. 
 
 The exemption from levy is maintainable, however, only 
 upon the theory that the corporation is created for [*(5/^(5] the 
 furtherance of public purposes, of such importance to the public 
 that there must not be private interference with such of the cor- 
 porate property as is essential to effectuate these purposes ; and 
 presupposes that to these purposes, the property is being applied. 
 Property not necessary to effectuate these purposes, if acquired 
 by gift or purchase, may be taken by legal process for the satisfac- 
 tion of debts. — 2 Morawetz Corp.,§ 1125. And so may personal 
 property employed, and necessarily employed, in the exercise of 
 corporate franchises. — i Freeman on Executions, § 179. When 
 the lands were levied and sold, the, appellee as a corporation had 
 
AGAINST WHOM THEY MAY BE ISSUED. 243 
 
 become inert, and had life in a name only. By non-user it had 
 subjected itself to the penalty of forfeiture by a direct proceeding 
 at instance of the state, while only in the absence of such forfeit- 
 ure, it could retain the capacity to exist as a corporation. It was 
 an existence in name only. It was not, and had not been for a 
 period of 13 or 14 years, in the exercise of its corporate fran- 
 chises. The line of railroad had been graded, embankments, 
 bridges and trestles had been erected and constructed on the lands 
 in controversy. The work was incomplete, and, for more than 
 sixteen years prior to the levy and sale, had been abandoned. 
 From the only part of the road which was completed, more than 
 fourteen years before the levy and sale, the rails and cross-ties 
 were removed and sold to a street railway company ; and the loco- 
 motive and flat cars, the only rolling stock it seems to have ever 
 possessed, and which had been utilized solely to aid in construc- 
 tion, were sold and carried away. Now, conceding that the prop- 
 erty of the appellee, essential to the exercise of its franchise and to 
 effect the public purposes contemplated in its creation, may be 
 exempt from levy and sale under legal process, can the exemption 
 continue after the franchises have been abandoned? Can it exist 
 when the necessity for its existence has terminated ? We think it 
 is co-extensive with the performance of the public purposes the 
 corporation was intended to promote, and when these purposes 
 are abandoned the exemption ceases, and the property stands in 
 the condition of property not necessary to enable the corporation 
 to perform its duties to the public. — Freeman on Executions, § 179. 
 In Benedict v. Heineberg, 43 Vt. 231, a railroad [*64^] 
 company had ceased to use a portion of its road, and was remov- 
 ing the rails necessary to its operation. The company owning in 
 fee the part of the road so abandoned, it was held that such part 
 was subject to levy and sale under execution at law. The decision 
 rests upon the proposition, that the land so abandoned was not be- 
 ing held for public uses, or for use as a railroad. In that case, there 
 was an abandonment in fact and intent of the public uses. Here, 
 there was an abandonment in fact. There may have been a lin- 
 gering hope that, at some indefinite time in the future, the corpora- 
 
244 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 tion might resume activity, and apply the lands to the uses for 
 which they were acquired; or that they could be sold to some 
 other company having the means or credit to complete the con- 
 struction of a line of railroad. However this may be, the fact 
 remains that there was not an exercise of corporation franchises 
 for years, and the lands were not applied to public uses. Practi- 
 cally there was no pretense that they were held to enable the com- 
 pany to discharge its public duties. We are of opinion they 
 were subject to levy and sale under the executions ; that the sale 
 was valid passing to the purchaser the fee vested in the appellee. 
 If the lands were not subject to execution, what remedy could the 
 judgment creditors have? There was no income or earnings to 
 be sequestered. The result of the contention would be that the 
 lands were placed beyond the reach of creditors, and yet the appel- 
 lee held the fee, having power and capacity to sell and convey it, 
 but applying it to no public uses, and earning no income. 
 
 The question we have considered, the right to levy an execu- 
 tion at law, on lands owned and held in fee, as the right-of-way 
 of a railroad corporation, the corporation having become inert and 
 having ceased all user of its franchises and all performances of its 
 public duties, was not considered in East Ala. Railway Co. v. 
 Visscher, 114 U. S. 340. All that was considered and decided in 
 that case was, whether the mere right-of-way of a railroad com- 
 pany, "a mere easement in the land, to enable it to discharge its 
 functions of making and maintaining a public highway, the fee of 
 the soil remaining in the grantor," was the subject of levy and sale 
 under execution at law. The court expressly declared that it was 
 "not necessary to discuss the general question as to the right to 
 levy an execution at law on property {^648^ owned by a railroad 
 company in fee." Nor is it now necessary to express an opinion 
 whether under any circumstances, the easement of a railroad com- 
 pany may or may not be the subject of levy and sale under execu- 
 tion at law. 
 
 The assignments of error are numerous, presenting many 
 questions which have been discussed by the respective counsel. 
 The conclusion we have reached renders it unnecessary to consider 
 them in detail. The result is, the decree of the chancellor must 
 
AGAINST WHOM THEY MAY BE ISSUED. 245 
 
 be reversed, the injunction dissolved, and the bill dismissed at the 
 cost of the appellee in this court and in the court of chancery. 
 
 Reversed and rendered. 
 For further dlacussion o£ this topic see Freem. Ex. § 348 and cases 
 cited; also Overton Bridge Co. v. Means, 33 Neb. 857, 29 Am. St. 514, 51 
 N. W. 240, In which a sale on execution of the company's toll bridge 
 over Platte river and its operating franchise to pay a judgment against 
 it for the builder's claim, was enjoined. 
 
 BATES V. CHICAGO. MILWAUKEE & ST. PAUL RY. CO. 
 6o Wisconsin 296, 19 N. W. 72, 50 Am. Rep. 369. (1884) 
 
 Garnishment of Ry. Co. for Hogs In Transitu — Service on One Agent, 
 Property in Possession of Another, Constructive Notice, Delivery, 
 Diligence, Liability — Exemption from Garnishment, Why, De- 
 cisions Reviewed — Garnishee Chargeable for Property 
 Held out of State, Why — Liability as Custodian for 
 Property not Subject to Seizure. 
 
 Garnishment by Alphonzo C. Bates against the Chicago, Mil- 
 waukee & St. Paul Railway Co. as garnishee of the principal 
 defendant, P. H. Cunningham. From judgment for the plaintiff, 
 the garnishee appeals. Reversed. 
 
 On the trial of the issue, formed on the garnishee's answer de- 
 nying liability, it appeared that when the garnishment summons 
 was served at Milwaukee, Wis., at 5 a. m., the garnishee was in 
 possession of a carload of hogs belonging to defendant, which 
 were in transit to the Chicago stock yards, where they arrived and 
 were delivered to the consignee at 7 :20 a. m. the same day. The 
 plaintiff claimed the garnishee was liable on these facts. 
 
 Fuller & Fuller and H. H. Field, for appellant. 
 
 Robert F. Pettihone, for respondent. 
 
 The Court by Taylor, J. After a careful consideration of 
 the facts, and the arguments of the learned counsel for the respec- 
 tive parties, we have concluded that the learned circuit judge erred 
 in refusing to instruct the jury as requested by the appellant, 
 [*_joo] and also in rendering judgment in favor of the respondent 
 upon the special verdict. 
 
 I. It seems to us very plain that where the law authorizes the 
 service of a garnishee summons upon an officer of a corporation 
 who has not in his actual possession the property sought to be 
 reached by such process, but such property is in the possession of 
 
246 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 some other officer or employee of the company, and such other 
 officer or employee delivers such property to a person authorized 
 to receive the same, before he can, with reasonable diligence on the 
 part of the officer served, be notified to retain the possession there- 
 of, such service is not sufficient to charge the corporation as gar- 
 nishee. Nor do we think the officer served is under obigation to 
 use extraordinary diligence in notifying the officer or other em- 
 ployee in charge of the property of the service of the process. He 
 is bound to use reasonable diligence in respect to the matter, and 
 if by the use of reasonable diligence notice cannot be given to the 
 person in the actual possession of the property before it has law- 
 fully passed from the possession of the corporation, the corpora- 
 tion cannot be held liable as garnishee in respect to such property. 
 
 In this case the garnishee summons was served at an unusual 
 time, five o'clock in the morning, on the 2d of March, at a time 
 when the officer was probably in his bed, upon an officer who, as 
 the evidence shows, had no knowledge of the fact that the com- 
 pany had any property of the defendant in its possession, and 
 whose business did not require him to have any knowledge upon 
 that subject; and, so far as the evidence in this case shows, he had 
 at hand no ready means of ascertaining the fact that it had any 
 property of defendant in its possession ; and within two and one 
 half hours of the service of the process upon such officer of the 
 company the property sought to be reached by the proceeding was 
 without notice delivered to the person entitled to receive the same 
 under the contract by which the company held possession [*30i] 
 of it when the summons was served, at a place nearly a hundred 
 miles from the place where the officer was served with the sum- 
 mons. We think that, as a question of law, the service was insuf- 
 ficient to charge the company as garnishee. 
 
 We think the rule applicable to the notice which must be 
 given by the vendor to stop goods in transitu, should apply to a 
 case of this kind. The rule applicable to such cases is well stated 
 by Parke, B., in Whitehead v. Anderson, 9 Mees. & W., 534. He 
 says : "If notice be given to the principal whose servant has the 
 actual possession of the goods, it must be given at such a time and 
 under such circumstances that the principal, by the exercise of 
 
AGAINST WHOM THEY MAY BE ISSUED. 247 
 
 reasonable diligence, may communicate it to his servant in time to 
 prevent the delivery to the consignee ; and to hold that a notice to 
 a principal at a distance is sufficient to revest the property in the 
 unpaid vendor, and render the principal liable in trover for a sub- 
 sequent delivery by his servant to the vendee, when it was impos- 
 sible, from the distance and want of means of communication, to 
 prevent that delivery; would be the height of injustice. The only 
 duty that can be imposed on the absent principal is to use reason- 
 able diligence to prevent the delivery." It seems to us that it 
 would be the height of injustice to hold the railroad company liable 
 as garnishee for goods which their servants and employees have 
 delivered to the consignees entitled to receive them, having no 
 notice at the time of making such delivery that any garnishee pro- 
 cess had been served, and before a reasonable time had elapsed, 
 after the service upon a distant officer of the corporation, within 
 which notice could have been given to stop such delivery. To hold 
 the company liable in such case would do violence to the statute 
 which directs that "the court shall render such judgment in all 
 cases as shall be just to all the parties, and properly protect their 
 respective interests," etc. R. S., § 2766. The rule above stated 
 was held applicable [*J02] to the garnishee process by the supreme 
 court of Massachusetts in Spooner v. Rowland, 4 Allen, 485. In 
 this case it was held that the service of the process on the secretary 
 of an insurance company in Boston, to attach money due on an 
 insurance policy, was insufficient, when it appeared that three 
 hours after the service the agent of the company paid the loss at 
 Worcester to the claimant, without actual notice of the process. 
 
 2. Notwithstanding the general language of our statute upon 
 the subject of garnishment, that "any creditor shall be entitled to 
 proceed by garnishment, in the circuit court of the proper county, 
 against any person (except a municipal corporation) who shall be 
 indebted to, or have any property whatever, real or personal, in his 
 possession, or under his control, belonging to such creditor's 
 debtor, in the cases, upon the conditions, and in the manner pre- 
 scribed in this chapter" (R. S. § 2752), — we feel constrained to 
 hold that the personal property or real estate in his possession or 
 under his control must be limited to personal property or real 
 
248 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 estate within this state, and that in the absence of any fraud or 
 connivance on the part of the garnishee to aid the debtor in de- 
 frauding his creditors, personal property or real estate which is 
 lawfully in the possession or under the control of the garnishee 
 outside of this state is not the subject of garnishment under our 
 statute. That personal chattels outside of the state, which, if 
 within the state could be seized by attachment or execution, were 
 not intended to be covered by the statute, is, we think, evident. 
 
 The attachment of the debtor's property before judgment has 
 always been considered a harsh remedy in this state, but that writ 
 can only reach the property of the debtor within the state. R. S., 
 § 2738. The garnishee process is in the nature of an attachment, 
 and was first used to attach the credits of the debtor and apply 
 them to the payment of his debts, but it has been extended in this 
 state so [*505] as to attach, without actual seizure, the personiil 
 property and real estate of the debtor in the possession or under 
 the control of third persons, so as to apply such property to the 
 payment of his debts. We do not feel called upon to give this 
 statute, which is in its nature a harsh remedy, a construction 
 which would give the courts under it the highest powers of a 
 court of chancery, viz., the power to compel a debtor to surrender 
 his property held within a foreign jurisdiction, to be applied to the 
 payment of his debts within this state. If under this statute the 
 circuit court can exercise this power, then any justice of the peace 
 may, for the same language is used in the statute which gives the 
 power to justices' courts over the garnishee process that is used 
 with respect to circuit courts, except that it leaves out the words 
 "or real estate." As to personal property the language is the 
 same. R. S., § 3716. 
 
 The statutes of this state, considered together and as one 
 system, clearly indicate that the personal property which may be 
 arrested in the hands of a garnishee must be within the state, so 
 that it may be seized and sold to satisfy any judgment obtained 
 against the principal debtor. Sec. 2762, R. S., relating to the pro- 
 ceedings in the circuit court, says : "If the answer disclose any 
 money, credits or other property, real or personal, in the posses- 
 sion or under the control of the garnishee, the officer having a writ 
 
AGAINST WHOM THEY MAY BE ISSUED. 249' 
 
 of attachment or an execution, if any, may levy upon the interest 
 of the defendant in the same ; otherwise the garnishee shall holdi 
 the same until the order of the court thereon." The last clause 
 of the section evidently relates to the cases where the garnishee 
 is summoned in an action not commenced by attachment, and in 
 such cases he must hold the property to await the judgment of the 
 court in the principal action. The act giving jurisdiction of the 
 proceedings to justices of the peace, provides as follows: "The 
 justice shall enter an order in his docket, requiring the garnishee, 
 within ten days, to [*J0^] pay or deliver to the justice such prop- 
 erty, or the amount of such indebtedness, or so much thereof as 
 may be necessary to satisfy such judgment; * * * and all prop- 
 erty and effects, except money delivered to the justice, shall be by 
 him ordered to be sold on the execution against the defendant."" 
 
 R. S., § 3725- 
 
 These provisions clearly indicate that the personal property 
 to be reached in the hands of a garnishee is such as would be sub- 
 ject to seizure by the writ of attachment or execution, if they were 
 in the possession of the principal debtor. It is unnecessary to in- 
 timate the difficulties and hardships which would result from the 
 enforcement of a rule against garnishees compelling them to de- 
 liver up to the processes of the courts of this state any property 
 they may have under their control, belonging to the principal 
 debtor, situated in another state. The difficulty in the case at bar 
 might not be great, because the property, although in fact out of 
 the state when the garnishee summons was served, was not as 
 distant from the place where the court was held, which issued it, 
 as it might have been within the state. But the rule, if estab- 
 lished, must be general, so that if property just beyond the line of 
 the state may be reached, then property in Maine, Louisiana, or 
 California, or in any foreign country, may also be reached and 
 held. The difficulties and injustice of enforcing such a rule are 
 apparent. The only case cited by the learned counsel for the re- 
 spondent in which any court has held that personal property out 
 of the state, in which the garnishee process was issued, could be 
 reached and held by it, is Childs v. Digby, 24 Pa. St., 23. That 
 case was disapproved as bad law by the same court in Penn. R. 
 
"250 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 R. Co. V. Pennock, 51 Pa. St., 244. The position taken by us 
 upon this question is approved by the Pennsylvania court in the 
 ■case last cited, and also in the following cases : Western R. R. v. 
 Thornton, 60 Ga., 300; Sutherland v. Second Nat. Bank, 78 Ky. 
 250; IVheat V. P. C. & Ft. D. R. R. Co., 1*305] 4 Kan. 370, 378; 
 /. C. R. R. Co. V. Cobb, 48 111. 402 ; Lawrence v. Smith, 45 N. H. 
 533 ; Tingley v. Bateman, 10 Mass. 343, 346 ; Clark v. Brewer, 6 
 'Gray (Mass.), 320; Young v. Ross, 31 N. H. (11 Foster), 201. 
 
 It is urged by the learned counsel for the respondent that the 
 •garnishee should be held for property in his control out of the 
 state, because the court could enforce its order against the person 
 of the garnishee, over whom it has jurisdiction, in like manner as 
 a court of equity sometimes enforces a contract between the 
 parties to the action to convey lands situated in another state. 
 Our answer to that argument is, as stated above, that it is clear 
 that the legislature did not intend to confer these high equity pow- 
 ■ers upon the courts having jurisdiction of the garnishee process. 
 It is unnecessary, therefore, to discuss the question of the power 
 of the legislature to confer upon the courts of this state the au- 
 thority to appropriate the personal property or real estate of a 
 debtor, situate in another state or foreign country, to the payment 
 loi his debts in this state. 
 
 3. Another question of very great importance to all common 
 ■carriers, and especially to all railroad companies within this state, 
 was very fully discussed by the learned counsel for the respective 
 parties orally and in their briefs ; and, although not absolutely 
 necessary to a determination of this appeal, we deem it highly 
 proper to consider it in this case. The exact question is this : Can 
 a common carrier be held liable, upon a garnishee summons, for 
 personal chattels in his possession in actual ti'ansit at the time the 
 ■summons is served? 
 
 We think that public policy, and the proper discharge of the 
 ■duties imposed upon common carriers of personal chattels placed 
 in their possession for carriage, requires that this question should 
 be answered in the negative ; and we think so, notwithstanding the 
 very broad language of the statute above quoted. That railroad 
 <:orporations, as well [*50(5] as individuals and other corporations, 
 
AGAINST WHOM THEY MAY BE ISSUED. 251 
 
 are subject to the garnishee process must be admitted, and that in 
 proper cases they must be held to respond as individuals. This 
 •court has so held as to debts due from the railroad company to the 
 principal debtor in the action. The nature of the possession and 
 •control which the railroad company has of and over personal prop- 
 erty in actual transit ; the interruption of business, and the general 
 inconvenience which must necessarily result from holding such 
 property the subject of the garnishee process, — it appears to us 
 .are amply sufficient to justify us in making such property an ex- 
 ception to the general rule, in the absence of any positive declara- 
 tion of the legislature subjecting such property to the process. 
 Notwithstanding the general language used in statutes of this 
 kind, the courts have established many exceptions, depending 
 upon the nature and character of the possession and control which 
 the person or corporation proceeded against has over the property 
 in his or its possession. This court has established many excep- 
 tions, where it is admitted the language of the statute was broad 
 enough to include the corporations or officers excepted by the 
 •courts. Burnham v. Fond du Lac, 15 Wis. 193 ; Hill v. La. C. & 
 M. R. R. Co., 14 Wis. 291 ; Buff ham v. Racine, 26 Wis. 449 -jMer- 
 rell V. Campbell, 49 Wis. 535. So this court, as well as others, 
 has made exceptions, and taken cases out of the general words of 
 the statute on account of the nature of the indebtedness of the gar- 
 nishee which is sought to be reached by the garnishee process. 
 Thus, where the debt sought to be reached is in the form of a ne- 
 :gotiable promissory note or bill of exchange, the debtor is not held 
 •chargeable as garnishee except under a showing of facts which 
 will clearly protect him against the actual holder of the note or bill. 
 Carson v. Allen, 2 Pin. (Wis.), 457; Davis v. Pawlette, 3 Wis. 
 .300 ; Mason v. Noonan, 7 Wis. 609 ; State ex rel. Rogers v. Bur- 
 .ton, II Wis. 50; Beck v. Cole, 16 Wis. 95. These cases are abun- 
 dant to [*J07] show that where the public good requires it, or when 
 it is necessary to protect the rights of the garnishee, the courts 
 Tiave not hesitated to say that the general words of the statute 
 :should be construed not to include the party or the particular sub- 
 ject matter of the controversy. * * * [*5o5] 
 
 * * * We think when the legislature gave the garnishee proc- 
 
252 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 ess in an ordinary action upon contract before judgment, and 
 where there is no allegation of any fraudulent attempt on the part 
 of the debtor to defraud his creditors, it could not have contem- 
 plated that it would be used for the purpose of interfering with 
 the business of railroads and other common carriers in the prompt 
 performance of their duties to the public ; and when the plaintiff, 
 upon allegations of fraud, proceeds by writ of attachment against 
 the property of his debtor, he should take the risk of the actual 
 seizure of the defendant's property if found in the hands of the 
 carrier, and assume the risk as well as the expense of establishing 
 the ownership of the property by the defendant, and not be al- 
 lowed to cast that risk and expense upon the carrier by summon- 
 ing him as garnishee. 
 
 There are but few decisions of the courts upon this subject. 
 We have been referred by the learned counsel for the respondent 
 to the case of Adams v. Scott, 104 Mass. 164, as sustaining the 
 right to hold, by garnishee process, goods in the hands of a com- 
 mon carrier while in transitu. It must be admitted that the court 
 so held in that case. It was a very plain case. There was no dis- 
 pute about the ownership of the property, and the property at the 
 time of the service seems to have been not in actual transit, but 
 in the hands of an agent of the company in the city of Boston. 
 Still it is quite plain that the court held that the fact that the prop- 
 erty was in the hands of a common carrier in transit, was no ob- 
 jection to the proceedings. This is the only [*J0p] case we have 
 found which sustains the doctrine contended for by the respon- 
 dent. On the other side, the learned counsel for the appellant 
 have cited us the cases of /. C. R. R. Co. v. Cobb, 48 111. 402, and 
 M. C. R. R. Co. V. C. & M. L. S. R. R. Co., i 111. App. (i Bradw.) 
 399, which sustain the contrary doctrine, and hold that chattels in 
 the hands of a common carrier in transitu, are not the subject of 
 garnishment. The doctrine of these cases has some support in 
 the cases of Penn. R. R. Co. v. Pennock, 51 Pa. St. 244, 254, and 
 Western R. R. Co. v. Thornton, 60 Ga. 300. We approve what 
 was said by Chief Justice Breese in the case of /. C. R. R. Co. v. 
 Cobb, supra, about the injustice of holding the common carrier as- 
 garnishee in respect to property in actual transit, viz. : "They are 
 
AGAINST WHOM THEY MAY BE ISSUED. 253 
 
 obliged, under ordinary circumstances, to carry all that shall be 
 delivered to them, and they discharge their duty by carrying and 
 delivering according to the contract. It is not their business, nor 
 is it their interest, to know to whom the various articles belong, 
 nor should it be required of them that conflicting claims to the 
 property intrusted to them should be adjusted through controver- 
 sies in which they have no interest, and the burden, annoyance, 
 and expense of which they must bear. When the goods are in 
 the depot of a railway company in the county in which the attach- 
 ment proceedings are instituted, there could, perhaps, be no ob-» 
 jection to such process ; but on this point we express no definite 
 opinion. When the property has left the county, and is in transit 
 to a distant point, though on the same line of railway, it would be 
 unreasonable to subject the company to the costs, vexation, and 
 trouble of such process, merely because it had received to be car- 
 ried that which the law cornpelled it to receive and carry." 
 
 Whether goods in a depot of a railway company in this state, 
 either before transit or after, and awaiting delivery [*jio] after 
 their arrival at the place of delivery, would be subject to the gar- 
 nishee process, we do not determine. 
 
 For the reasons stated, the judgrhent of the circuit court must 
 be reversed. 
 
 By the Court. — The judgment of the circuit court is reversed, 
 and the cause remanded with instructions to that court to enter a 
 judgment upon the special verdict in favor of the garnishee de- 
 fendant. 
 
 For further decisions on garnishments against quasi public cor- 
 porations see Rood, Garnish., § 37. 
 
 KLEIN V. NEW ORLEANS. 
 99 United States 149. (1878) 
 
 Execution en Judgment against a City — Wliat Property Liable, Why — 
 Objection, How IVIade. 
 
 John Klein, having procured execution on a judgment for 
 $89,000 recovered by him against the city of New Orleans, a rule 
 on the plaintiff to show catise why the levy upon certain lands 
 thereunder should not be set aside, was made on motion of the 
 
254 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 city. On the hearing, the rule to dissolve the seizure was made 
 absolute, and Klein thereupon brought the case here. Affirmed. 
 
 /. Q. A. Fellows, for the plaintiff in error. 
 
 B. F. Jonas, contra. 
 
 The Court by Waite, C. J. We must take the facts of this 
 case as they are stated in the bill of exceptions, and cannot look 
 into the evidence. The questions to be settled are: i. Whether 
 the lands levied on are subject to seizure and sale under execution 
 against the city; and, 2. Whether the ground rents are liable in 
 the same way. 
 
 This depends on the facts. If the lands are held by the cor- 
 poration for public purposes, and the ground rents are part of the 
 public revenues, it is well settled that they cannot be levied on or 
 sold. Dillon, Mun. Corp., §§ 64, 446. Municipal corporations 
 are the local agencies of the government creating them, and their 
 powers are such as belong to sovereignty. Property and revenue 
 necessary for the exercise of these powers become part of the ma- 
 chinery of government, and to permit a creditor to seize and sell 
 them to collect his debt would be to permit him in some degree to 
 destroy the government itself. 
 
 The bill of exceptions shows that the lands consisted of "two 
 squares of ground which had formerly constituted the easterly 
 bank of the Mississippi River, but which, by the gradual accretion 
 of said easterly bank, had ceased to constitute the bank of the 
 river, but which were now used by the public for wharf and levee 
 purposes, said squares forming a portion of the land known as the 
 'Batture property.' " From this it must be [*/5i] inferred that 
 they were held for the use of the public. In a city where business 
 is carried on by water, a public wharf is as much a public neces- 
 sity as a public street or highway. If the land in this case had still 
 continued to be the bank of the river, and used and improved as 
 a public landing, it certainly could not have been subject to sale 
 on execution against the city ; but we think a simple extension of 
 its surface does not change its character. If it continues to be 
 used as it was before, it is still public wharf or levee property. It 
 matters not that charges may have been made by the city for 
 wharfage. That would be nothing more than a proper govern- 
 
AGAINST WHOM THEY MAY BE ISSUED. 255^ 
 
 mental regulation. A street extending to navigable waters and 
 used for wharf purposes does not cease to be public property be- 
 cause a charge is made for its use in that way. The test in such 
 cases is as to the necessity of the property for the due exercise of 
 the functions of the municipality. Upon the facts as stated by the 
 court below, we think the lands levied upon were not subject to. 
 seizure and sale. 
 
 As to the ground rents, it was decided by the supreme court 
 of Louisiana, in New Orleans & Carrollton Railroad Co. v. Muni- 
 cipality No. I (7 La. Ann. 148), that "in authorizing the mayor 
 and city council (of New Orleans) to sell property on perpetual 
 ground rent, the legislature established a legal destination of the 
 rents, as a portion of the public revenue of the city, to enable the 
 municipal authority to exercise its powers of police and govern- 
 ment. These rents, therefore, cannot be sold under execution, 
 against the municipality.'' There is nothing in the bill of excej>- 
 tions to show that the rents levied upon in this case were in any 
 respect different from those under consideration in that. We 
 must presume, therefore, that they are the same. 
 
 Judgment affirmed. 
 
 See also the following cases for a fuller discussion of these prin- 
 ciples: New Orleans v. Louisiana Construction 'Co., 140 U. S. 654; 
 Darlington v. New York, 31 N. Y. 164, 88 Am. Dec. 248; Leonard v. 
 Brooklyn, 71 N. Y. 498, 27 Am. Rep. 80. 
 
 "We think that all property held by the city authorities for the 
 public use, health and enjoyment of the people of the city, is not so 
 liable to levy and sale. Further, we are of the opinion that all prop- 
 erty of every kind held by the municipality is presumptively for the 
 public use, and whilst perhaps the presumption may be overcome, on 
 proof that the corporation is holding it for other purposes, * * * yet 
 the onus would be upon the plaintiff in execution to make that proof." 
 Curry v. The Mayor and Aldermen of Savannah, 64 Ga. 290, 37 Am. 
 Rep. 74. 
 
 In 111. and perhaps some other states no property of a municipal' 
 corporation can be sold under judicial process, irrespective of the pur- 
 pose for which it is used. City of Chicago v. Hasley, 25 111. 485. 
 
 Mandamus is the proper remedy to compel payment of judgments- 
 against municipalities. See Dillon on Mun. Corp. 1890 Ed. § 851. 
 
:256 PROCESSES to obtain satisfaction of judgments. 
 
 WATERBURY v. BOARD OF COMMISSIONERS, 
 in Montana 515, 24 Am. St. 67, 26 Pac. 1002. (1891) 
 
 iGarnish merit against County — Terms of Statute — Exemption, Reasons 
 
 Pro and Con, Decisions Reviewed — Klein v. New 
 
 Orleans Distinguished. 
 
 Action by Waterbury against Harnon, in which the Board 
 of Commissioners of Deer Lodge County was summoned as gar- 
 nishee. From a judgment discharging the garnishee, Waterbury 
 .appeals. Reversed. 
 
 Under the Mont. Ter. Code Civ. Proc. § 189^ "All persons" 
 -summoned as garnishees are liable for defendant's property in 
 their possession and any debts they owe him ; and by General Laws 
 § 202, "The word 'person' may extend and be applied to bodies 
 -politic and corporate." By Gen. Laws, § 744, "each organized 
 "County of this state shall be a body politic and corporate." 
 
 G. B. Winston, for appellant. 
 
 Henry J. Haskell, Attorney-General, and W. S. Shaw, County 
 Attorney, for respondent. 
 
 The Court by De Witt, J. This action arose while this com- 
 monwealth was a territory of the United States, and the laws ap- 
 plicable to the contention are set forth in the introductory state- 
 ment. 
 
 The garnishment of towns, cities, and counties has been the 
 ■subject of such conflicting views in different states, and being a 
 first impression in this court, we incline to adopt the language of 
 Judge Welch in City of Newark v. Funk, 15 Ohio St. 463: "In 
 other states authorities are quite conflicting ; so much so that we 
 do not feel bound by any of them, and see nothing to prevent us 
 from deciding the question as an original one, according to our 
 •own views of public policy and the meaning and intent of the 
 statute." 
 
 This conflict to some extent, but by no means wholly, dis- 
 solves, upon an inspection of the statutes upon which the decisions 
 are made. In 2 Wade on Attachments, §§ 345 and 419, are mar- 
 shaled the states holding diverse views, and the author concludes 
 Ihat the majority is against holding municipal corporations as gar- 
 nishees. But the author doubts the soundness, and questions the 
 
AGAINST WHOM THEY MAY BE ISSUED. 257 
 
 reason of the rule. There is eminently respectable opinion upon 
 the other side of the question. 
 
 An analysis of the case would be interesting, but we will not 
 enter upon it, by reason of the direct conflict of the decisions, even 
 upon similar statutes; and, furthermore, we are of opinion that 
 the statutes of this state are so much rhore explicit upon the sub- 
 ject under consideration, that many of the decisions of sister 
 states are inapplicable; and that, in view of our statute, i*52o] the 
 weight of authority is not against the liability of a county as a gar- 
 nishee. 
 
 It is not doubted that the statute may exempt a county from 
 the process of garnishment. Our statute does not so exempt a 
 county ; and, if they are to be exempted, the authority must be 
 found elsewhere than in the express declaration of the statute. 
 Again, the statute may subject a county to this process. Now 
 what do we find written in the law ? It declares that "all persons" 
 having in their possession or under their control any credits or 
 other personal property belonging to the defendant, or owing debts 
 to him, etc., shall be liable to the process. Furthermore, that the 
 word "person" may be applied to "bodies politic and corporate," 
 and that counties are "bodies politic and corporate." Hence coun- 
 ties, as "bodies politic and corporate," are brought within the 
 meaning of the word "persons," and all persons may be garnished. 
 It is therefore no strained conclusion to say that a county is sub- 
 ject to the process. 
 
 Speaking of holding a county as garnishee. Judge Biddle 
 {Wallace v. Lawyer, 54 Ind. 506; 23 Am. Rep. 661) says: "And 
 the decisions are generally made upon statutes authorizing cor- 
 porations, in terms, to be garnished; yet the courts hold that the 
 general word 'corporation' must be restricted to mean private or 
 ordinary business corporations, and not extended to embrace mu- 
 nicipal corporations, or bodies politic and corporate. The words 
 used in the statute of this state are 'persons' or 'corporations,' in 
 general terms." But the statute of Montana, as above noticed, 
 goes further than to use the words "persons" or "corporations" in 
 general terms, as in Indiana, and the remarks of the judge in that 
 
 17 
 
258 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 case, and the authorities to which he refers, lose their force in this 
 court. 
 
 It is a general principle that one who may be sued may be 
 garnished by the creditor of the person who may sue. Counties 
 with us may be sued (§ 744, Gen. Laws), and, therefore, under 
 the general rule, they would be subject to garnishment. They, in 
 this respect, do not come within the reason of exempting a sov- 
 ereign state from garnishment, which sovereignty may not be 
 sued, or ordinarily subjected to process of the courts. It being 
 clear that the statute does not expressly exempt counties from gar- 
 nishment, and it being equally clear that the letter of [*5^i] the 
 statute is such that it can be reasonably applied to a county as a 
 subject of garnishment, is there anything in the spirit of the law 
 or the doctrine of public policy which prohibits such a construc- 
 tion? 
 
 We will examine, in the light of the statute, the reasons ad- 
 duced for exempting counties from this process of the courts. It 
 is objected that there is practical difficulty in summoning an arti- 
 ficial entity, like a county, to be examined on oath respecting its 
 possession of property of the debtor, as provided in § 190 of the 
 Code of Civil Procedure, and that so summoning its officers is a 
 serious interruption to the business of the county and its officers. 
 
 We cannot agree with this view. The statute (§ 749, Gen. 
 Laws) expressly provides a method for service of process against 
 a county in all legal proceedings. In another portion of the stat- 
 ute (§72) service of a summons upon a county is provided I'or. 
 Answering a garnishment is by no means as large an affair as ap- 
 pearing in an action as a defendant. The statute providing a 
 method for summoning a county in legal proceedings, we can see 
 no practical difficulty in its appearing. There was certainly none 
 in this case, and no derangement of the county's business occurred. 
 Again, it is said that the writ does not lie against a county by rea- 
 son of its being contrary to public policy ; that disasters to the pub- 
 lic would ensue if the writ were allowed, and public servants 
 would be impaired in their usefulness. In Wallace v. Lawyer, 
 supra, it was held that a county cannot be held to answer as to its 
 indebtedness to an execution debtor for bis salary as an officer of 
 
AGAINST WHOM THEY MAY BE ISSUED. 259 
 
 such county in proceedings supplemental to execution. This case 
 cites with approval Merwin v. City of Chicago, 45 111. 133, 92 x\m. 
 Dec. 204, which was a case of garnishment of a municipal corpora- 
 tion, in which the court, by Lawrence, J., says : "The only ques- 
 tion presented by this record is, whether municipal corporations 
 in this state are liable to the process of garnishment. This court 
 held, in City of Chicago v. Hasley, 25 111. 485, that the property 
 of such a corporation could not be levied on and sold under execu- 
 tion. This decision was placed upon the grounds of public policy. 
 However strong the obligation of a town or city to pay its debts, 
 it was considered that to [*fi22] allow payment to be enforced by 
 execution would so far impair the usefulness and power of the 
 corporation in the discharge of its governmental functions, that 
 the public good required the denial of such a right. * * * Al- 
 though this decision is not conclusive upon the question before us 
 as res adjudicata, yet the entire spirit and reasoning upon which 
 it is based must lead us to hold that a municipal corporation is not 
 liable to process of garnishment. The question has been often 
 before the American courts, and although the decisions are not 
 uniform, in a large majority of the cases it has been held that the 
 writ would not lie. The reason given for these decisions is uni- 
 formly the same, and is substantially that givert by this court in 
 the case in 25th 111. It must be decided as a question of public 
 policy. These municipal corporations are in the exercise of gov- 
 ernmental powers to a very large extent. They control pecuniary 
 interests of great magnitude, and' vast numbers of human beings 
 who are more dependent on the municipal, for the security of life 
 and property, than they are on either the state or federal govern- 
 ment. To permit the great public duties of this corporation to be 
 imperfectly performed, in order that individuals may the better 
 collect their private debts, would be to pervert the great objects of 
 its creation." — 
 
 Thus it is observed that the 45 111. 133, on the subject of gar- 
 nishment of a municipal corporation, adopts the reasoning of 25 
 111. 485, in the matter of an execution against the corporation, on 
 a judgment obtained directly against the corporation. The 
 grounds for denying an execution against a municipal corporation 
 
260 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 are most satisfactorily put in 25 111., City of Chicago v. Hasley. 
 The court well points cut the disasters which might follow the 
 levy of execution against the city of Chicago ; how the seizure of 
 the water-works would precipitate a water famine, the levy upon 
 fire-engines would expose to the horrors of conflagration, and the 
 seizure of revenues would paralyze government. To these views 
 we have no dissent. But we cannot follow the Illinois court in 
 45 111., when it applies these arguments to the matter of garnish- 
 ment of the municipal corporation. By garnishment the water- 
 works, fire-engines, public buildings, and revenues of the corpora- 
 tion are not seized. The corporation is simply required to hold, 
 and finally pay over, a sum of money [^'i^j] or property, in which 
 it has no interest, to one person rather than another. Its business 
 is not interrupted ; its property is not touched ; its functions are 
 not deranged. 
 
 Returning to the case at bar, we cannot agree that there is 
 any reason why the great public duties of a county need be imper- 
 fectly performed, or that its business is in any danger of derange- 
 ment, if it be compelled, by process of a court, to pay the salary of 
 a servant to that servant's creditors. The county has no suit to 
 defend, no counsel to employ, no witnesses to collect and pay. It 
 has no burden cist upon it, no duty to perform, except to act 
 as temporary stakeholder, to await the determination of a court, 
 in an action in which the county has no interest. 
 
 The argument of public policy as to inconvenience to the 
 county and its officers does not reach our mind with sufficient force 
 to impair another view of law and of right that is recogfnized 
 throughout the civilized world; that is, that debtors should pay 
 their debts. This, of course, with the modification that the means 
 of livelihood should be left to the debtor, which view is embodied 
 in the laws of exemption from execution, which in this state are 
 very liberal. The debtor's earnings for thirty days prior to the 
 levy of a writ are exempt from seizure. The servant of the county 
 is thus secured in his support, if he earns it, and the county is not 
 liable to lose the services of competent officers. Indeed, it has 
 never been observed that a county has difficulty in obtaining em- 
 ployees to do its work, and the county may surely obtain as good 
 
AGAINST WHOM THEY MAY BE ISSUED. 261 
 
 service from those who pay their debts as from those who avoid 
 such payment, and are protected in the avoidance by the unsatis- 
 fying doctrine of pubHc policy. 
 
 We conclude that there is no substantial argument from pub- 
 lic policy which requires us to read the law as to garnishment of 
 counties differently from what its letter seems to us to declare. 
 Counties are not exempted from garnishment by statute. On the 
 contrary, their liability to the process is within the letter of the 
 law. We find nothing in the spirit or the doctrine of public policy 
 which induces us to add to or take from the letter. The judgment 
 of the district court is reversed, and the cause is remanded, with 
 directions to that court to enter judgment in favor of the plaintiff 
 for $210.40, and interest at the rate of ten per cent per annum from 
 the twelfth day of March, 1888, and for the costs of this appeal. 
 
 Reversed. 
 
 I believe the above case gives the best discussion of both sides of 
 this vexed question of any reported, but that the majority of the decis- 
 ions are against the view taken above. However, they are quite evenly 
 divided. I have collected the authorities in Rood, Garnish. §§ 18-24. In 
 Michigan a school district which attempted to waive the privilege was 
 obliged to pay again. School Dlst. No. 4 of Marathon v. Gage, 39 Mich. 
 484, 33 Am. Rep. 421. Contra, Skelly v. Westminster School Dist., 103 
 Cal. 652, 37 Pac. 643. 
 
 CARTER v. STATE. 
 42 Louisiana An. 927, 21 Am. St. 404, 8 South. 836. (1890) 
 
 Right to Sue State, Permission, Right to Execution on Judgment — Con- 
 stitutional Law, Division of Governmental Functions, 
 Delegation of Powers. 
 
 Land & Land and A. H. Leonard, for plaintiff and appellant. 
 
 /. Henry Shepherd, district attorney, for, defendant and ap- 
 pellee. 
 
 The Court by Fenner, J. By an act of the general assembly, 
 No. 81 of 1884, plaintiff was authorized to sue the state of Louisi- 
 ana for a certain indebtedness alleged to be due under a contract 
 with the state. In accordance therewith he brought his suit and 
 recovered a judgment against the state in March, 1885, which be- 
 came final without appeal. He alleges that at the session of the 
 general assembly in 1886 and at the subsequent session in 1888 
 he applied for an appropriation to satisfy his said judgment by 
 
262 
 
 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 bills for that purpose introduced by members, which said bills were 
 defeated, and that his only remedy for the enforcement of his 
 rights under said judgment is by the exercise of the judicial power. 
 
 He avers that the state owns property, rights and credits, 
 which form no part of its annual revenues, derived from taxation 
 for the support of the government, and which are not exempt from 
 seizure and sale, and that he has the right to execute his judgment 
 by seizure and sale thereof under the usual process. 
 
 He prays, therefore, that the state be cited through her gov- 
 ernor and that, after due proceedings, there be judgment decree- 
 ing that a writ of execution or fieri facias issue on said judgment 
 against the state commanding the seizure and sale of any of her 
 property not forming part of her annual revenues derived from 
 taxation, to an amount sufficient to pay and satisfy said judgment. 
 
 The state appeared by counsel and filed an exception of no 
 cause of action, and from a judgment sustaining said exception 
 the plaintiff brings the present appeal. 
 
 The learned counsel of plaintiff fully and frankly concedes 
 the principle, now fortunately too firmly established by repeated 
 judicial decisions to admit of further controversy, that a state of 
 this union can not, directly or indirectly, be sued by its own citi- 
 zens, or by the citizens of other states or of foreign nations, either 
 in its own courts or in the federal courts, without its consent. His 
 contention, as we understand it, is that the state, in this case, has 
 consented to be sued, and that the effect of such consent is to sub- 
 ject the state [*pji] to the judicial power and jurisdiction, not 
 only for the purpose of entertaining, hearing and deciding the 
 suit, but also for the purpose of executing and enforcing the judg- 
 ment by the seizure and sale of the property of the state and by 
 applying the proceeds to the satisfaction thereof. Our answer 
 to this contention is twofold, viz. : * * * 
 
 I. Legislative acts authorizing individuals to sue the state 
 upon claims which the legislature, for any cause, does not see fit 
 to recognize and pay, have been of common occurrence in this and 
 in other states. Their purpose and effect, as commonly under- 
 stood, are undoubtedly nothing more than to refer to the judiciary 
 the settlement of the questions of law and fact involved in the 
 
AGAINST WHOM THEY MAY BE ISSUED. 263 
 
 claims, and the determination, in the form of a judgment, of the 
 rights of the parties. It is implied, as a matter of course, that the 
 legislative power, after making such a reference, will accept and 
 abide by the judicial determination, will recognize the judgment 
 rendered as final and conclusive, and will, in due and ordinary 
 course, make provision for the satisfaction thereof. That such 
 was the interpretation of his remedy adopted by the plaintiff him- 
 self is evinced by his application to successive general assemblies 
 for an appropriation to satisfy his judgment. 
 
 But to assume that, by consenting to be sued, the legislature 
 intended to abdicate its constitutional function of controlling and 
 administering the public funds and property and of appropriating 
 them to such lawful purposes as it may deem best, and to delegate 
 to the judicial department the power of seizing such property and 
 applying it to the payment of a particular debt, would be, beyond 
 measure, rash and unjustifiable. No such intention is expressed 
 in the act or can be fairly implied from its terms ; and we consider 
 it beyond question that no such ever entered into the mind of any 
 member of the legislative body. The incidents and appurtenances 
 of ordinary jurisdiction have no application to a case like this. 
 Undoubtedly jurisdiction [*P32] granted to render judgments be- 
 tween parties subject to judicial power and control implies power 
 to execute such judgments. But the sovereign is not subject to 
 judicial power and control, except just so far as it has consented 
 thereto ; the moment the limit of that consent is reached the judi- 
 ciary must instantly halt. Satisfied as we are that the legislature 
 has not consented and did not intend to consent to the execution 
 of this judgment by writ of iieri facias, we are bound to deny such 
 remedy. 
 
 Counsel asks, of what use is the power to render judgment 
 against the state, if the court is powerless to execute the judg- 
 ment? That question was anticipated by Mr. Hamilton in the dis- 
 cussion of the constitution of the United States before its final 
 adoption. "To what purpose," he asked, "would it be to authoriza 
 suits against sovereign states for the debts they owe ? How could 
 recoveries be enforced? It is evident that it could not be done 
 without waging war against the contracting state." Federalist 
 
264 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 No. 8i. He never dreamed that authorizing suit against a state 
 would imply the right to issue fieri facias on the judgment. 
 
 Pufifendorff says : "And if the prince gives the subject leave 
 to enter an action against him in his own courts, the action itself 
 proceeds rather upon natural equity than on municipal laws. For 
 the end of the action is not to compel the prince to observe the con- 
 tract, but to persuade him." In England claims against the crown 
 might be prosecuted before certain courts in the form of petitions 
 of right, with the consent of the king, but it was held by Lord 
 Mansfield that "if there were a recovery against the crown, appli- 
 cation must be made to Parliament, and it would come under the 
 head of supplies for the year." Macbeth v. Haldimand, i Durn. 
 & East, 172. 
 
 We have examined all the authorities quoted by counsel and 
 find none of them to support his contention. We are quite cer- 
 tain that no precedent exists sustaining the issuance of a ft. fa. on 
 a judgment against a sovereign state in her own courts, though 
 rendered with her own consent. The only recourse for satisfac- 
 tion is by application to the legislature, with whom the judgment 
 should surely have great persuasive force, but none compulsive. 
 
 1*933] 
 
 2. We are quite satisfied that, if the legislature had expressly 
 authorized the court to execute this judgement by the issuance of 
 the writ of ft. fa., and the seizure and the sale of the property of 
 the state for its satisfaction, such action would have been uncon- 
 stitutional, null and void. Articles 14 and 15 of the constitution 
 divide the powers of government into three distinct departments, 
 and provide that "no one of these departments, nor any person or 
 collection of persons holding office in any one of them, shall exer- 
 cise power properly belonging to either of the others." 
 
 The fiscal affairs of the state, the possession, control, admin- 
 istration and disposition of the property, funds and revenues of the 
 state are matters appertaining exclusively to the legislative depart- 
 ment. Except in so far as the constitution itself has appropriated 
 them to particular purposes, the legislative department has exclu- 
 sive control of them. No debt of the state can be paid without 
 an appropriation, and the constitution provides the manner in 
 
AGAINST WHOM THEY MAY BE ISSUED. 265- 
 
 which alone appropriations shall be made. The judicial depart- 
 ment is vested with no right or authority, over such matters di-- 
 rectly or indirectly. If the legislature, in authorizing the judi- 
 ciary to entertain suits and render judgments against the state, 
 should add the authority to execute the same by seizure and sale 
 of the state's property and the application thereof to the payment 
 of the debt recognized by the judgment, it would be delegating to 
 the judicial department powers exclusively vested in the legisla- 
 tive department, in violation of the express prohibition of the con- 
 stitution. The giving to the exercise of such powers the form of 
 judicial process would not destroy its essential character. It 
 would still be in effect the exercise of the purely legislative power 
 of disposing of and appropriating the property and funds of the 
 state to the payment of a particular debt of the state. Such pow- 
 ers the judiciary and all members thereof are prohibited from ex- 
 ercising, with or without the legislative consent. 
 
 If the legislature could delegate such power in one instance, 
 it might refer all public creditors to the courts for satisfaction, and 
 shoulder on the judiciary the whole burden of distributing the 
 state's property and funds amongst them in a concursus. We will 
 
 not further elaborate the subject. 
 
 Judgment afhrmed. 
 
 BUCHANAN v. ALEXANDER. 
 45 United States (4 Howard) 20. (1846) 
 
 Garnishment against United States — Ignoring Government and Pro- 
 ceeding against Officer — Delivery to Agent with Direction to 
 Pay, Title to Money, Liability to Process against Payee. 
 
 Attachment by James Alexander against McKean Buchanan, 
 purser of the frigate Constitution, as garnishee of a seaman there- 
 on, who owed the plaintiff for board. From a judgment against 
 the garnishee, he brings error. Reversed. 
 
 The Court by McLean, J. * * *The important question is, 
 whether the money in the hands of the purser, though due to the 
 seamen for wages, was attachable. A purser, it would seem, can- 
 not, in this respect, be distinguished from any other disbursing 
 agent of the government. If the creditors of these seamen may, 
 by process of attachment, divert the public money from its legiti- 
 
266 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 mate and appropriate object, the same thing may be done as re- 
 gards the pay of our officers and men of the army and of the navy ; 
 and also in every other case where the public funds may be placed 
 in the hands of an agent for disbursement. To state such a prin- 
 ciple is to refute it. No government can sanction it. At all times 
 it would be found embarrassing, and under some circumstances 
 it might be fatal to the public service. 
 
 The funds of the government are specifically appropriated to 
 certain national objects, and if such appropriations may be di- 
 verted and defeated by state process or otherwise, the functions of 
 the government may be suspended. So long as money remains 
 in the [*2i] hands of a disbursing officer, it is as much the money 
 of the United States as if it had not been drawn from the treas- 
 ury. Until paid over by the agent of the government to the per- 
 son entitled to it, the fund cannot, in any legal sense, be considered 
 a part of his effects. The purser is not the debtor of the seamen. 
 
 It is not doubted that cases may have arisen in which the gov- 
 ernment, as a matter of policy or accommodation, may have aided 
 a creditor of one who received money for public services ; but this 
 cannot have been under any supposed legal liability, as no such 
 liability attaches to the government, or to its disbursing officers. 
 
 We think the question in this case is clear of doubt, and re- 
 quires no further illustration. The judgments are reversed at the 
 costs of the defendants, and the causes are remanded to the state 
 court, with instructions to dismiss the attachments at the costs of 
 
 the appellees in that court. 
 
 Reversed. 
 
WHAT COURTS MAY ISSUE THEM. 267 
 
 7. WHAT COURTS MAY ISSUE THE WRITS. 
 
 Under this head prepare again on: Dillon v. Burnham, 
 ante, 228 ; Roberts v. Connellee, ante, 78 ; and the cases under the 
 head of jurisdiction, especially, — Hoagland v. Creed, ante, 13 ; and 
 Cooper V. Reynolds, ante, 15- 
 
 CLARKE V. MILLER. 
 18 Barbour Sup. (New York) 269 (1854) 
 
 Sheriff's Deed, Validity — Proof of Judgment and Execution — Effect of 
 - Invalid Execution — Power to Cure Defect by Amendment. 
 
 This decision was rendered in tlie sixth judicial circuit of supreme 
 court of New Yorlt at the Delaware general term In July; Crippen, 
 Shanliland and Mason, JJ. 
 
 Ejectment by Miller against Clarke. From judgment for 
 plaintiff at a special term defendant appeals. Reversed. 
 Dana & Beers, for appellant. 
 Ferris & Cushing, for appellee. 
 
 The Court by Mason, J. This is an action of ejectment, and 
 the plaintiff made his title through a judgment, execution and 
 sheriff's deed. The judgment was recovered on the 7th day of 
 May, 1846, in the court of common pleas of Tompkins county, in 
 favor of the Tompkins County Bank, against Andrew W. Knapp 
 
 .and Birdsey Clarke, for $116.23. In July, 1849, an execution was 
 issued out of the supreme court, upon said judgment, to the sheriff 
 of Tompkins, who sold the premises thereon; and the fifteen 
 
 -months having expired, the sheriff, on the 1st day of January, 
 185 1, gave to the purchaser a deed, which recited that the execu- 
 tion issued out of the supreme court. After the commencement 
 of the present action, the county court [*2/o] of Tompkins granted 
 an order amending the execution, the sheriff's certificate of sale, 
 and the sheriff's deed, so as to make the execution issue out of the 
 
 -county court of Tompkins, instead of the supreme court ; and the 
 sheriff, after his term of office had expired, in pursuance of said 
 
 •order, erased the words, supreme court, and inserted Tompkins 
 
 ■county court, in the reciting part of said deed, and after the deed 
 
268 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 had been delivered, and without any new acknowledgment thereof. 
 These facts all appeared before the execution and sheriff's deed 
 were offered in evidence ; and when offered, the defendant's coun- 
 sel objected to the execution and sheriff's deed, in consequence of 
 such alterations. The judge at the circuit overruled the objec- 
 tion and admitted them in evidence, and held the title acquired bjr 
 the purchaser under them to be good. 
 
 The judge at the circuit most clearly erred. A sheriff's sale 
 of land is within the statute of frauds, and requires a deed, to .pass 
 the title to the purchaser. Jackson v. Catlin, 2 John. 248. And 
 a sheriff's deed is not admissible in evidence, without showing the 
 judgment and execution under which he sold. Bowen v. Bell, 2a 
 John. 3.^8. The sheriff's deed not being admissible, without pro- 
 ducing the judgment and execution, I do not see upon what prin- 
 ciple it could be admitted at all. The rule is a familiar one, that 
 judgments must be executed in those courts in which they are ren- 
 dered. 3 Bacon's Abr. 715, tit. Execution, E. I do not see upon 
 what principle the supreme court could assume to execute this 
 judgment, recovered in the common pleas. The supreme court pos- 
 sessed no power to award a Hen facias upon that judgment, and 
 every execution that is issued by the attorney is regarded in law 
 as awarded by the court out of which it issues, just as much as if 
 the award was made upon the record. It strikes me as a strange 
 proceeding, for the supreme court to award an execution to the 
 sheriff, commanding him to collect a judgment of the county 
 court ; and I entertain no doubt but such an execution is absolutely 
 void. But what is more strange still, after the sheriff has exe- 
 cuted it and sold the lands of the defendant and given a deed to 
 the purchaser, the county court assume to say : "We will interfere 
 with [*2yi] the process of the supreme court, because that court 
 has undertaken to execute our judgment;" and so, by an order, 
 the county court change, I suppose, an execution of the supreme 
 court which has been fully executed and returned, into a process 
 of the county court, and declare, in effect, that the child is theirs, 
 although they had no hand in begetting it. The rule is a familiar 
 one, that every court can amend its own process. It is said to be 
 a power incidental to every court. It is no more than assuming. 
 
WHAT COURTS MAY ISSUE THEM. 269 
 
 the power to correct its own proceedings ; but I am not aware of 
 any power in the county court to amend the process of the supreme 
 court. This process, being void, is not amendable. Bunn v. 
 Thomas, 2 John. 190 ; Burk v. Barnard, 4 Id. 309 ; Miller v. Greg^ 
 ory, 4 Cowen, 504; Chandler v. Becknell, Id. 49. In Simon v. 
 Gurney, (i Marsh. 237, 5 Taunton, 605, i Petersdorf's Abr. 595), 
 where a fieri facias was issued upon a judgment in the common 
 pleas, returnable in the king's bench, but the writ was tested in the 
 name of the chief justice of the common pleas, the court allowed 
 the writ to be amended, by making it returnable in the common 
 pleas ; placing their decision upon the express ground that, as the 
 writ was tested in the name of the chief justice of the common 
 pleas, there was something to amend by. The reason why void 
 process cannot be amended is, there is nothing to amend by. All 
 the cases hold the very sensible language, that, when there is noth- 
 ing to amend by, the court have no power of amendment. In this 
 case, the writ issuing out of the supreme court, and returnable in 
 that court, there is nothing in the county court to amend by. The 
 county court could not amend anything that has been done in that 
 court towards the execution of their judgment, for nothing has 
 been done in that court. The execution being void in the hands 
 of the sheriff, all that was done under it is of no effect. As a con- 
 sequence, the sheriff's certificate is a mere nullity, and so was his 
 deed. * * * [*2^2] * * * I am of opinion that, for these rea- 
 sons, without considering the other questions in the case, the 
 judgment of the circuit court should be reversed and a new trial 
 granted ; costs to abide the event. 
 
 Reversed. 
 
 RAHM V. SOPER. 
 28 Kansas 529. (1882) 
 
 Process on Justice's Judgment after Transcript Docketed in Court of 
 Record — Garnishment as a Defense to Action by Creditor. 
 
 Action commenced in justice court by Frank Rahm against 
 R. B. Soper, his tenant, to recover rent. Soper defends on the 
 ground that, after the rent accrued and before plaintiff purchased, 
 Soper was summoned as garnishee of plaintiff's grantor, Eliz. H. 
 Hook, on a judgment against her in favor of T. J. Stout. From 
 
270 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 judgment for defendant by the district court on appeal, plaintiff 
 brings error. Reversed. 
 
 Lucien Baker and Wm. C. Hook, for appellant. 
 
 Wm. Dill, for appellee. 
 
 The Court by Horton, C. J. The judgment of T. J. Stout 
 against Elizabeth H. Hook was rendered before a justice of the 
 peace of Leavenworth county in 1878, and in the same year an 
 abstract of that judgment was docketed in the district court of 
 Leavenworth county, under § 119 of the justices' act. The gar- 
 nishment proceedings against R. B. Soper were commenced on 
 March 21, 1881, before the justice rendering the judgment, and 
 long subsequent to the docketing of the abstract in the district 
 court. It was held in Treptow v. Buse, 10 Kas. 170, that the filing- 
 of an abstract in the district court has the same force as the filing- 
 of the transcript of a judgment. Comp. Laws of 1879, ch. 81, §^ 
 119; id., ch. 80, § 518. The filing of an abstract of a judgment 
 rendered before a justice of the peace obviously contemplates a 
 transfer of the judgment from the justice's court; and after the 
 judgment is so transferred to the district court, it becomes subject 
 to the same rules and vested with the same powers as though ori- 
 ginally rendered in that court. Treptozv v. Buse, supra; Comp. 
 Laws 1879, ch. 81, § 188. 1*531] 
 
 Section 138 of the justices' act reads: "It shall be the duty 
 of the justice, if the case be not appealed, taken up on error, dock- 
 eted in the district court, or bail has not been given for the stay of 
 execution, at the expiration of ten days from the entry of the judg- 
 ment, to issue execution without a demand and proceed to collect 
 the judgment, unless otherwise directed by the judgment creditor." 
 
 Within the express terms of this section, after a case has been 
 docketed in the district court, it no longer becomes the duty of the 
 justice to issue execution in the absence of a demand. As the 
 docketing of the judgment in the district court transfers the judg- 
 ment to that court, and as by such transfer it becomes subject to 
 the same rules and vested with the same powers as though origi- 
 nally rendered in that court, the judgment creditor after such 
 transfer must look to that court for the means of enforcing the col- 
 lection of the judgment, and cannot demand execution under § 137 
 
WHAT COURTS MAY ISSUE THEM. 271 
 
 of the justices' act. This certainly was the intention of the legis- 
 lature, and this construction of the statute renders the provisions 
 of the code and the sections of the justices' act concerning this 
 subject-matter harmonious. If a different view were entertained, 
 a plaintifif would have the privilege of process on the same judg- 
 ment from two courts within the same county at the same time. 
 If the judgment creditor is not deprived of the right to an execu- 
 tion before the justice after he has transferred his judgment to the 
 district court by filing an abstract, the provisions relating to re- 
 vivor in § 522 of the code are without much significance, as the 
 plaintiff might keep alive his judgment before the justice and from 
 time to time file new abstracts. As in our view the justice after 
 the filing of the abstract of the judgment in the district court had 
 not jurisdiction to issue process in the case, all of the garnishment 
 proceedings after the transfer of the judgment to the district court 
 must be regarded as nullities. * * * [*5i.?] * * * 
 
 The judgment of the district court must be reversed, and the 
 case remanded with direction to the court below to enter judgement 
 upon the agreed statement of facts for plaintiff in error. 
 
 Reversed. 
 
 Same effect; Herdman v. Cann, 2 Houston (Del.) 41; Oberwarth v. 
 McLean, 52 How. Pr. (N.Y.) 491. Compare Baker v. King, 2 Gr. (Pa.) 
 254; Brandt's App., 16 Pa. St. 343; Nelson v. Guffey, 131 Pa. St. 273, 289. 
 
 BOSTWICK V. BENEDICT. 
 4 South Dakota 414, 57 N. W. 78. (1893) 
 
 Judgment of Court of Record — Transcript Docketed in Court of An- 
 other County — Execution from Latter Court — Reguiar, 
 Void or Voidable — Purpose of Statute. 
 
 Taubman & Potter and Little & Nunn, for appellants. 
 
 R. B. Smithers and John W. Bell, for respondents. 
 
 The Court by Kellam, J. This is an appeal from an order of 
 the circuit court of Grant county amercing appellant, as sheriff, 
 for non-payment of moneys alleged to have been collected by him 
 on execution. The facts are undisputed, and are as follows : In 
 the circuit court of Roberts county, respondents Bostwick ob- 
 tained a judgment against one Knight, and caused a transcript to 
 be filed in the office of the clerk of the circuit court for Grant 
 
272 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 county, and thereupon caused execution to be issued by the clerk 
 of the circuit court of said Grant coitnty to the sheriff of such 
 county; that prior to the issuance of said execution one Dewees 
 had obtained judgment in said Grant county circuit court against 
 respondents Bostwick; that while said first execution was in the 
 hands of the sheriff as aforesaid, and before the same was col- 
 lected, he received, as such sheriff, for collection, an execution 
 issued upon the judgment of Dewees against the respondents 
 Bostwick. While so holding both executions. Knight, the de- 
 fendant in the first, paid to the sheriff the amount due thereon, and 
 directed him to apply the same on the judgment and execution of 
 Dewees against respondents Bostwick ; and he did so, paying the 
 same over to the plaintiff, Dewees. Respondents Bostwick then 
 made demand for the amount so recovered from Knight, and, pay- 
 ment being refused, brought these proceedings. * * * [*^/7] 
 * * * 
 
 Section 5104, Comp. Laws, provides that a transcript of the 
 original docket of a judgment may be taken from the county in 
 which the judgment was rendered, and filed in the office of the 
 clerk of the circuit court of any other county, and that it shall then 
 be a lien upon any real estate of the judgment debtor in said 
 county, but this does not authorize the clerk of such county to 
 issue execution thereon. Execution may be issued to the sheriff 
 of any county where the judgment is docketed (§ 5114), but it 
 must be issued from the county where the judgment was rendered. 
 This is the evident plan of our statute. In some states the statute 
 •expressly authorizes an execution to issue from any county in 
 which a transcript is filed, but ours does not, and the power does 
 -not exist without statutory authority. Freem. Ex'ns, § 14. The 
 object of our statute in allowing the filing of a transcript in an- 
 other county is, as stated in said § 5104, to make the judgment a 
 lien upon the debtor's real estate in such county. It confers no 
 authority upon the clerk of such county to issue such execution, 
 and any attempt to do so is unauthorized, and the execution is 
 void. It is so held in states having statutory provisions similar 
 to ours. See Seaton v. Hamilton, 10 Iowa, 394; Furman v. 
 JDewell, 35 Iowa, 170; Shattuck v. Cox, 97 Ind. 242. In this case 
 
FORM AND ESSENTIALS OF THE PAPERS. 273 
 
 the execution issued by the clerk of the Grant county circuit court 
 
 on the transcript from Roberts county was void. It recited on its 
 
 face that it was issued on such transcript, and the sheriff of Grant 
 
 county, the appellant here, might have declined to accept it or 
 
 operate under it. * * * ['*/f2o] * * * We think the order of the 
 
 circuit court amercing the sheriff was wrong and it is reversed. 
 
 All the judges concurring. 
 
 Reversed. 
 
 8. THE FORM AND ESSENTIALS OF THE AFFIDAVITS, WRITS, 
 ETC. 
 
 a. Attachment and Garnishment Affidavits. 
 
 As to the essentials of attachment and garnishment affidavits, 
 and the effect of defects, prepare again upon Cooper v. Reynolds, , 
 ante, 15; Greenvault v. Farmers & Mechanics' Bank, ante, 24; 
 Wells V. American Express Co., ante, 31 ; Pennoyer v. Neff, ante, 
 48 ; Emerson v. Detroit Steel & Spring Co., ante, 168 ; and Jack- 
 son V. Burke, ante, 170; Hawes v. Clement, ante, 159. 
 
 BURNHAM V. DOOLITTLE. 
 14 Nebraska 214, 15 N.W. 606. (18S3) 
 
 Attachment and Garnishment Affldavlt^Entitling — Averments — Attach- 
 ment of Equity of Redemption. 
 
 Wales F. Severance, for plaintiff in error. 
 
 Samuel J. Tuttle, for defendant in error. 
 
 The Court by Lake, C. J. This petition in error presents two 
 questions. First. Was the motion to quash the summons in gar- 
 nishment properly overruled ? Second. Was the plaintiff in error 
 rightly held as garnishee ? L*--^5] * * * 
 
 The objection to the summons was simply that the "affidavit 
 on which the procedure is based is insufficient in not establishing 
 that the garnishee has property of, or is indebted to defendant ; and 
 that" * * * "it is not entitled in any court, proceeding, or cause." 
 
 This objection is based in part upon the supposition that, to 
 properly institute a proceeding of this kind, the affidavit must nee- 
 
274 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 essarily show that the person to be summoned has property of the 
 judgment debtor in his possession or under his control, or is 
 indebted to him, and that a statement of mere belief, without more, 
 will not answer. Referring to the statute, however, we find that 
 nothing further is required to be stated than that the judgment 
 creditor "has good reason to and does believe that any person or 
 corporation (naming them) have property of and are indebted to 
 the judgment debtor." Upon the filing of an affidavit, stating such 
 belief, it is provided that the proper officer "shall issue a summons 
 as in other cases, requiring such person or corporation to appear 
 in court and answer such interrogatories as shall be propounded 
 to him, it, or them, .touching the goods, chattels, rights, and credits 
 of the said judgment debtor in his, its, or their possession, or 
 \*2i6] control." Sec. 244, Comp. Statutes, 562. Mere belief, 
 therefore, is all that the statute contemplates, and consequently all 
 that courts have the right to exact in affidavits of this kind. If it 
 had been intended that the facts and circumstances inducing such 
 belief should be given, and their sufficiency determined by the 
 court, it is but reasonable to suppose that language altogether dif- 
 ferent from this would have been employed. 
 
 The other point of this objection, viz., that the body of the 
 affidavit was without a title, is merely technical. In the affidavit 
 it is clearh' averred that it was a transcript of the record of the writ 
 of Doofittle & Gordon v. W. Sanford Gee, that had been filed in the 
 district court, and it was against "the property of the said W. San- 
 ford Gee" that the garnishment proceeding was directed. Besides, 
 the affidavit was endorsed, "Doolittle & Gordon against W. San- 
 ford Gee," and this is also the endorsement of the summons served 
 upon the person garnished. There could not have been, therefore, 
 any possible doubt as to the case in which it was intended to use 
 the affidavit, nor as to the persons sought to have affected by it. 
 There was neither uncertainty nor ambiguity in any particular, and 
 we are aware of no purpose that would have been better served by 
 prefixing the title of the cause to the body of the affidavit. 
 
 The only remaining question is whether the judgment debtor's 
 equity of redemption, or interest in the two promissory notes, could 
 be reached and held by the process of garnishment? It must be 
 conceded that according to most of the cases bearing upon this 
 
FORM AND ESSENTIALS OF THE PAPERS. 275 
 
 question, it could not. i Wait's Actions and Defences, 422, 423. 
 Following this general current of authorities, we held in Peckin- 
 baugh V. Quillin, 12 Neb. 586, that it is only when a mortgagor 
 of goods has the right of possession for a definite period that he 
 has an attachable interest in them. This rule did not influence the 
 result of that case, however, for the reason that the property was 
 insufficient to satisfy the mortgage [*2i/] debt. But in view of 
 our attachment law, and the ruling of the supreme court of Ohio 
 on a statute from which ours was copied, and upon more mature 
 reflection, we are now satisfied that whatever interest a mortgagor 
 of chattels may have in them, in this state, may be reached by seiz- 
 ure under a writ of attachment at any time while in his possession, 
 and by means of the process of garnishment if they have passed 
 into the hands of the mortgagee. And to this extent our opinion 
 in the case of PeckinbMigh v. Quillin must be modified. In 
 the case of Carty v. Fenstemaker, 14 OhiO' State 457, which 
 arose under a statute just like our own respecting this matter, it 
 was distinctly held that the interest of a mortgagor of chattel prop- 
 erty in possession of the mortgagor, after condition broken, was 
 attachable. The seizure of the property under the order of attach- 
 ment, it was said, "creates a lien in favor of the attaching creditor 
 upon the interest of such mortgagor." * * * [*i'7(5'] * * * 
 
 Judgment affirmed. 
 
 STOUT V. POLGER. 
 34 Iowa 71. (1871) 
 
 Attachment Affidavit — Amendment — Omission of Signatures. 
 
 Motion to quash attachment. Granted. Plaintiff appeals. 
 Reversed. 
 
 Tfie Court by Day, /. * * * jj^ sustaining the motion to quash 
 the attachment, the court, in our opinion, erred. It may be con- 
 ceded, as claimed by defendant, that the affidavit is essential, and 
 that a writ issued without it would be void. But here it is ren- 
 dered reasonably certain that the petition was sworn to before the 
 attachment issued ; and the failure of the plaintiff to sign the affi- 
 davit, [*77] and of the officer to sign the certificate, resulted merely 
 from oversight consequent upon the haste in which the act was 
 done. Before the motion to quash was passed upon an amended 
 petition was filed, which was properly sworn to, alleging that the 
 
276 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 causes of attachment existed at the time the writ was obtained. 
 * * * Reversed. 
 
 WILLIAMS V. INTERNATIONAL GRAIN & STOCK BOARD. 
 99 Michigan 80, 57 N. W. 1089. (1894) 
 
 Garnishment. Dismissed. Plaintififs bring certiorari. Reversed. 
 
 The Court by Grant, /. * * * The affidavit in each case was 
 made by one of the plaintiffs, and stated all the requirements of 
 the statute, and that the said plaintiffs "are justly apprehensive of 
 the loss," etc., "unless a writ of garnishment issue." In Weimeis- 
 ter V. Manville, 44 Mich. 408, 6 N. W. 859, the affidavit was held 
 defective because the agent of the plaintiff, who made the affidavit, 
 swore that the plaintiff was justly apprehensive, — a fact that he 
 could not know. Where the affidavit is made by one of the plaint- 
 iffs, and he swears that they are justly apprehensive, it must be 
 presumed that he has personal knowledge. We think the court 
 erred in quashing the proceedings, and the judgments are therefore 
 
 Reversed. 
 
 b. The Form and Essentials of the Writs. 
 
 Under this head prepare again : Roberts v. Connellee, ante, 78 ; 
 Keniston v. Little, ante, 231 ; Gardner v. Mobile & N. Ry. Co., 
 ante, 238. 
 
 PARSONS V. SWBTT. 
 32 New Hampshire 87, 64 Am. Dec. 352. (1855) 
 
 Writs — Essentials — Teste — IVIotion of Quash. 
 
 A plea in abatement of an original writ, for that it was tested 
 in the name of a chief justice who had resigned, was held bad in 
 form. Then a motion to quash the writ for the same cause was 
 made. Denied. 
 
 The Court by Perley, C. J. The constitution of New Hamp- 
 shire, article 87, provides that "all writs issuing out of the clerk's 
 office in any of the courts of law, shall be in the name of the state 
 of New Hampshire; shall be under the seal of the court whence 
 they issue, and bear the teste of the chief, first, or senior justice of 
 the court, and shall be signed by the clerk of said court." 
 
 Provisions of the constitution are to be interpreted by the 
 
FORM AND ESSENTIALS OF THE, PAPERS. 277 
 
 same rules that are applied in the construction of similar pro- 
 visions in statutes ; and the party that would avail himself of any 
 provision in the constitution must do it in the same manner and in 
 the same time and order, that would be required in cases of like 
 provisions in statutes. Ripley v. Warren, 19 Mass. (2 Pick.) 592; 
 Marston v. Brackett, 9 N. H. 336, 349. 
 
 Before the revolution all writs in the province of New Hamp- 
 shire were in the king's name ; and probably when the change was 
 first made, by substituting the name of the state for the regal style, 
 one object was to avoid all appearance of recognizing the royal 
 authority. If beyond this there is any design to give authenticity 
 and credit to legal process, by requiring an actual attestation of the 
 chief, first, or senior justice of the court, the practical construction 
 which has uniformly been put on this provision of the constitution 
 has wholly defeated that object; for the ordinary process of the 
 court never in fact bears the actual signature of the chief justice, 
 but his name is printed into the blank writs before they are deliv- 
 ered out of the clerk's office. The teste of the writ is therefore in 
 practice a mere matter of form. 
 
 A writ which issues without the proper teste is not in terms 
 declared by the constitution to be void, and we think is not to [*5p] 
 be held so by construction. In the same article of the constitution 
 writs are required to be signed by the clerk, but a writ is not void 
 because it wants the signature of the clerk, and the objection will 
 be overruled, if not seasonably made. Lovell v. Sahin, 15 N. H. 
 
 29. 37- 
 
 In Massachusetts, upon the construction of a similar provision 
 in their constitution, it has been decided that the want of a proper 
 teste is mere matter of form, and must be taken advantage of by 
 seasonable objection — otherwise it will be held to have been waived. 
 Ripley v. Warren, 19 Mass. (2 Pick.) 592. 
 
 In this case the want of a proper teste did not make the writ 
 void. The plea in abatement was defective in form, and overruled. 
 The motion to quash the writ was addressed to the discretion of the 
 court, and that discretion was properly exercised by denying the 
 motion. As a general rule, a motion to quash a writ for a cause 
 which might be taken advantage of by plea in abatement, must be 
 
278 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 made within the time limited for filing pleas in abatement. Trafton 
 V. Rogers, 13 Maine 315. 
 
 Our practice requires such pleas to be filed within the first 
 four days of the first term, and the court of common pleas were 
 well warranted in holding that the defendants had waived their 
 right to insist on the objection, by neglecting to make the motion 
 until the second term. 
 
 Even if the pl6a in abatement had been sufficient, or the motion 
 to quash had been seasonably made, the writ might have been 
 amended, for it was not void, and the court had jurisdiction; as 
 we understand to have been held in Reynolds v. Dainrell, decided 
 in Hillsborough county, July, 1849, ^^id not reported. 
 
 We have not overlooked the case of Hutchins v. Edson, i N. 
 H. 139, in which it was held that a writ of execution, not under the 
 seal of the court, was void. The general language used in that 
 case might tend to the conclusion that writs of mesne, as well as 
 final process, were void, unless under the seal of the court. It is 
 obvious, however, that there is an important distinction between 
 the two kinds of writs, because to a writ of final process the defend- 
 ant has no opportunity to object, by plea or motion, that it wants 
 a seal or other constitutional requisite ; whereas in the case of mesne 
 process he may plead the defect, or make it the ground of a motion ; 
 and it may perhaps be found, when a case shall arise which pre- 
 sents the question, that the doctrine of Hutchins v. Edson ought 
 not to be extended beyond the point expressly decided. Foot v. 
 Knowles, 45 Mass. (4 Mete.) 386; Brewer v. Sibley, 54 Mass. (13 
 Mete.) 175; People v. Dunning, 1 Wendell 16; Jackson v. Brown, 
 4 Cowen 550. 
 
 SIDWBLL V. SCHUMACHER. 
 
 99 Illinois 426. (1881) 
 
 Execution — Validity — In tlie Name of the People. 
 
 Ejectment in Wayne circuit court. Judgment for plaintiff. 
 Defendant appeals. Reversed. 
 
 Plaintiff showed title through a judgment, special execution, 
 and sheriff's deed thereon, received in evidence over defendant's 
 objection. The execution did not run in the name of the people. 
 
 C. C. Boggs, for appellant. 
 
 James McCartney, for appellee. 
 
FORM AND ESSENTIALS OF THE PAPERS. 279 
 
 The Court by Mulkey, /. * * * While there is some conflict 
 of authority upon this subject, yet it is beheved that the weight 
 of authority estabHshes the proposition that, where the law 
 expressly directs that process shall be in a specified form, and issued 
 in a particular manner, such a provision is mandatory, and a fail- 
 ure on the part of the official whose duty it is to issue it, to comply 
 with the law in that respect, will render such process void. On 
 the other hand, it is well settled that there are many merely formal 
 defects which do not have that effect. To illustrate, where the 
 statute or constitution expressly requires that process shall issue 
 under the seal of the court, and be tested in the name of and signed 
 by the clerk, the failure to comply with either of these requirements 
 would, as it is believed, according to the weight of authority, render 
 the process void. The legislature or the people, through the con- 
 stitution, have the unquestionable right to say of what process shall 
 consist, and when they have declared that it shall be of a specified 
 form, by implication all other forms are prohibited. If such laws 
 are merely directory, then writs are as valid without {*434\ their 
 observance as with it, and every clerk would be at Hberty to issue 
 process in whatever form might suit his fancy. If one of these 
 requirements may be omitted, all may, on the same principle. 
 Under such a system, one clerk might conclude that the ceremony 
 of attaching a seal was idle and useless. Another might think the 
 writ would be sufficient with the seal, and that the addition of the 
 name of the clerk would therefore be superfluous. Another might 
 think all these requirements of the law are but idle ceremonies, and 
 for them substitute something altogether different. 
 
 Under such a system of things, how could the defendant in 
 the process know what was valid and binding upon him and what 
 was not, and when to obey and when not? And how could the 
 officer into whose hands it was delivered for execution know 
 whether he would be protected in serving it or not? And what 
 would become of the almost numberless questions discussed by 
 the courts and legal authors, founded upon the supposed distinc- 
 tion between void and voidable process, if there are no essential 
 requirements by which the one can be distinguished from the other ? 
 
 It will, doubtless, be conceded that the constitutional require- 
 
280 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 ment that all process "shall run in the name of the People," stands 
 upon at least as high footing as the statutory provisions which 
 require process to be issued under the seal of the court, and to be 
 tested in the name of and signed by the clerk. That it is so 
 regarded is expressly conceded in Commissioners, etc. v. Barry, 66 
 111. 496. 
 
 The decisions, therefore, with respect to the omission of a seal 
 or other statutory requirement, will be directly in point upon the 
 question involved in this case. * * * \*4S5'\ * * * 
 
 Bybee v. Ashby, 7 111. (2 Gilm.) 151, 43 Am. Dec. 47, like 
 the present case, was an action of ejectment. The plaintiff, to 
 show title in himself, relied upon a sale and sheriff's deed under a 
 judgment rendered in Knox county circuit court, the land in con- 
 troversy 1*436] being situated in Fulton county. The execution 
 under which the sale was made, by a mere clerical error was 
 directed to the sheriff of Knox county, instead of Fulton county. 
 * * * This court, in the course of its opinion, there said: * =•" * 
 "Where the execution is not regular upon its face, as, for instance, 
 it is issued without the proper seal of the court attached, or where, 
 as in this case, it is directed to the sheriff of one county and deliv- 
 ered to the sheriff of another county to be executed, such process 
 will not justify the officer in executing it, and all his acts under it 
 will be absolutely void and he a trespasser, and the purchaser will 
 acquire no right to the property purchased at the sale.'' * * * 
 
 [*437] 
 
 Davis V. Ransom et al, 26 111. 100, was an action of replevin, 
 for the recovery of certain chattels which were claimed under an 
 execution sale. On the trial of the cause, the court below excluded 
 as evidence the execution under which the sale was made, on the 
 ground that it was not under seal, and on appeal to this court the 
 ruling of the court below was sustained. * * * 
 
 In Hernandez v. Drake, 81 III. 34, where the validity of a sale 
 of real estate imder an execution to which the clerk had inadver- 
 tently omitted to sign his name was under consideration, it was 
 said: "The next question presented is, what {^438] was the effect 
 of the execution issued without the signature of the clerk? * * * 
 The signature is as essential under this law as is the seal or other 
 
FORM AND ESSENTIALS OF THE PAPERS. 281' 
 
 specific requirement, and in its absence the writ must be held tO" 
 confer no power upon the officer to whom it was directed." 
 
 Whatever the law may be with respect to the power of courts 
 to allow amendments before judgments, where the parties have 
 appeared in obedience to defective or even void process for the pur- 
 pose of taking advantage thereof, of which we express no opinion,, 
 as it is not necessary to a decision of this case, the present review 
 of the authorities clearly warrants the conclusion that a sale of land! 
 under an execution that does not run in the name of the People, 
 that is not sealed, or is not signed by or directed to the proper officer, 
 is absolutely void, and may be successfully resisted in any kind of 
 a proceeding, or in any forum in which the question may arise.. 
 * * * Judgment reversed. 
 
 LOWE V. MORRIS. 
 13 Georgia 147. (1858) 
 
 Judicial Writs — Formal Essentials — Omission of Seal. 
 
 Motion to dismiss a writ of error for want of a seal. Denied.. 
 
 Lumpkin, J. Is a writ of error a nullity without a seal? 
 
 My first impression was that this defect was fatal. Upom 
 reflection, my final conclusion is the other way. * * * 
 
 His signet or seal was the pledge of identity and fidelity, 
 exacted by Tamar of Lord Judah, one of the twelve princes of 
 Israel. Moses' Reports, Book Genesis, c. 38, v. 18. See also- 
 Esther, c. 8, v. 8 and 10. It would seem from this last case, that 
 even at this early period monarchs as well as courts at this day, 
 could only act through their official seal. And the reason given is,, 
 that the precept issued in the king's name and sealed with his ring,, 
 by his clerk, Mordecai the Jew, may no man reverse. And this is; 
 the strong position of my learned brother. (M. anciently, as now, 
 I would remark, was a favorite initial for the name of court clerks, 
 from Mordecai the Jew, even down to Martin, the Gentile.) What- 
 ever else there may be that is new under the sun, it is very evident 
 from this last authority, that mails are not. For we are told that 
 these letters mandatory of Ahasuerus were sent by post, on horse- 
 back, and riders on mules, camels, and young dromedaries. 
 
 So much for the antiquity and importance of seals. It wilt 
 
282 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 be found, upon further investigation, that modern decisions adhere 
 very strictly to these patriarchal precedents. * * * [*I53] 
 
 The truth is, that this whole subject, like many others, is 
 founded on the usage of the times, and of the country. A scroll 
 is just as good as an impression on wax, wafer, or parchment, by 
 metal, engraved with the arms of a prince, potentate or private 
 person. Both are now utterly worthless, and the only wonder is, 
 that all technical distinctions growing out of the use of seals, such 
 as a statute of limitations, plea to the consideration, etc., are not 
 at once universally abolished. The only reason ever urged at this 
 day why a seal should give better evidence and dignity to writing 
 is, that it evidences greater deliberation, and therefore should 
 impart greater solemnity to instruments. Practically we know that 
 the art of printing has done away with this argument. * * * 
 
 So long as seals distinguished identity, there was propriety 
 in preserving them. And as a striking illustration, see the signa- 
 tures and seals to the death warrant of Charles the First, as late as 
 January, 1648. They are 49 in number, and no two of them alike. 
 But to recognize the waving, oval circumflex of a pen, with those 
 mystic letters to the uninitiated, L. S. imprisoned in its serpentine 
 folds, as equipotent with [*I34] the coat of arms taken from the 
 devices engraven on the shields of knights and noblemen; shades 
 of Eustace, Roger de Beaumont, and Geoffry Gifford, what a dese- 
 cration ! The reason of the usage has ceased ; let the custom be 
 dispensed with altogether. 
 
 In Jones & Temple v. Logwood, i Washington (Va.) 42, 
 President Pendleton states, that there was a period when the 
 impression was made with the eye-tooth, and thinks there was some 
 utility in the custom, since the tooth's impression was the man's 
 •own, and presented a test in case of forgery. But this reason, how- 
 ever applicable in Virginia in 1791, does not hold true in this epoch 
 of dentistry, when no man's tooth is his own, but teeth, like almost 
 everything else, are artificial. * * * 
 
 What magic, I ask, is there in our own seal ? True, the clerk 
 has attested this writ of error in his official name, and by his pri- 
 vate seal, and in obedience to it, the clerk of the circuit court has 
 certified and transmitted to this court all the records and papers 
 
FORM AND ESSENTIALS OF THE PAPERS. 283 
 
 ■of file in the court below, which are necessary to enable us to hear 
 and determine properly this cause, upon its merits. But then we 
 look in vain on this writ for the three pillars supporting an arch, 
 with the word constitution engraven within the same, emblematic 
 ■of the constitution, supported by the three departments of govern- 
 ment : legislative, judicial, and executive. The first having 
 engraven on its base, wisdom, the second, justice, and the third, 
 moderation, and then on the right of the executive column, a man 
 standing with a drawn sword, and resembling most strikingly 
 [*^55] ii^ figure and attitude our most worthy and excellent chief 
 magistrate. But I forbear. 
 
 I Hi robiir et aes triplex. He would be a bold judge indeed, 
 who would venture to decide an issue of law in the absence of this 
 .speaking device ! There is a charm in that arch — a spell in those 
 pillars — an inspiration in the eye of that fierce-looking swordsman, 
 which guarantees a faithful administration of justice, although 
 simply and but very imperfectly impressed on the foolscap paper 
 •on which the writ of error is printed, instead of wax or some other 
 tenacious substance. 
 
 To whom we are indebted for the change in our seal, I am 
 not antiquarian enough to state. The old devices I always ven- 
 erated ; the one side the scroll on which was engraved the con- 
 stitution of the state of Georgia and the motto, pro bono publico. 
 On the other side, an elegant house and other buildings, fields of 
 •com, and meadows covered with sheep and cattle ; a river running 
 through the same, with a ship under full sail and the motto, Deus 
 nobis haec otia fecit. The Latinity as well as the piety of this seal, 
 commend themselves to my hearty admiration. They will chal- 
 lenge a comparison, even on the score of architectural taste too, with 
 the arch resting on three pillars. But then the capital defect in the 
 ■old seal — who does not anticipate me? — was the absence of that 
 cocked-hat swordsman. Without this addendum, it is difficult to 
 ■decide that any public document can impart absolute verity. This 
 it is, I am sure, that has exerted such a controlling influence over 
 the judgment of my dissenting brother, with his well-known mil- 
 itary propensities. 
 
 The act of 1845 authorizes tliis court to establish and procure 
 
284 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 a seal. My recollection does not serve me whether the state coat 
 of arms was selected as the device. I take it for granted it was. 
 If so, where, upon any seal attached to any writ of error or citation 
 returnable to this court, are those three potent and cabalistic words : 
 wisdom, justice, and moderation? Do not these constitute a part 
 of the seal just as much as the seal does a part of the writ of error? 
 Is it the seal of this court without them? If so, how much, and 
 [*75(5] what portions of it may be omitted and still leave a good 
 seal? Would it be a seal without the arch, without the pillars, 
 without the motto ? I forbear even to put the question whether it 
 would be a seal without the military effigy — without that cocked-hat 
 swordsman? Of course it would be a nullity. As well talk of a 
 man without a body! 
 
 For myself, I am free to confess that I despise all forms hav- 
 ing no sense or substance in them. And I can scarcely suppress a 
 smile, I will not say "grimace irresistible," when I see so much 
 importance attached to such trifles. I would cast away at once 
 and forever, all law not founded in some reason — natural, moral,, 
 or political. I scorn to be a "cerf adscript" to things obsolete, or 
 thoroughly deserving to be so. And for the "gladsome lights of 
 jurisprudence" I would sooner far, go to the reports of Hartly 
 (Texas), and of Pike and English (Arkansas), than cross an 
 ocean, three thousand miles in width, and then travel up the stream' 
 of time for three or four centuries, to' the ponderous tome of Siden- 
 fin and Keble, Finch and Popham, to search for legal wisdom. 
 The world is changed; our own situation greatly changed; and' 
 that court and that country is behind the age that stands still 
 while all around is in motion. 
 
 I would as soon go back to the age of monkery — to the good 
 old times when the sanguinary Mary lighted up the fires of Smith- 
 field, to learn true religion; or to Henry VIII., the British Blue- 
 Beard, or to his successors, Elizabeth, the two James's and twO' 
 Charles's, the good old era of butchery and blood, whose emblems- 
 were the pillory, the gibbet and the axe, to study constitutional 
 liberty, as to search the records of black-letter for rules to regulate- 
 the formularies to be observed by courts at this day. 
 
 I admit that many old things may be good things — as old wine,. 
 
FORM AND ESSENTIALS OF THE PAPERS. 285 
 
 old wives, ay, and an old world too. But the world is older, and 
 consequently wiser now than it ever was before. Our English 
 ancestors lived comparatively in the adolescence, if not the infancy 
 of the world. It is true that Coke, and Hale, and Holt caught a 
 glimpse of the latter-day glory, but [*/57] died without the sight. 
 The best and wisest men of their generation were unable to rise 
 above the ignorance and superstition which pressed like a night- 
 mare upon the intellect of nations. And yet we, who are "mak- 
 ing lightning run messages, chemistry polish boots and steam 
 deliver parcels and packages," are forever going back to the good 
 old days of witchcraft and astrology, to discover precedents for 
 regulating the proceedings of courts, for upholding seals and all 
 the tremendous doctrines consequent upon the distinction between 
 sealed and unsealed papers, when seals de facto no longer exist! 
 Let the judicial and legislative axe be laid to the root of the tree ; 
 cut it down. Why cumbereth it, any longer, courts and contracts? 
 
 Having treated this subject scripturally and historically, 
 though very discursively, I propose to add a word or two upon the 
 physiological aspect of the question. And I repeat the interroga- 
 tory propounded at the beginning of this opinion, namely: What 
 defect will make a writ of error void ? And I answer the query by 
 proposing another: What defect, original or supervenient, will 
 reduce man from the genus homo? 
 
 Will the amputation of the feet and legs disfranchise a des- 
 cendant of Adam of his title to manhood! It will not be denied 
 but that he may lose every limb of the body and leave nothing but 
 the naked trunk, and yet be a man "for a' that." And is the seal, 
 though it be constituted of the arch, and pillars, and swordsman, 
 more essential to the writ of error, or a pedestal to support it, than 
 legs and feet and arms are to manhood? Common sense will 
 decide. * * * 
 
 Motion denied. 
 
 Warren, J., delivered an opinion agreeing with Lumpkin, J., 
 and Nesbit, I., filed a dissenting opinion. 
 
286 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 PEOPLE V. DUNNING. 
 1 Wendell (New York) 16. (1828) 
 
 In the Supreme Court, Savage, C.J., Sutherland, and Woodworth, JJ. 
 
 Execution — Liability of Sheriff for Default — Deputy Insolvent — Writ 
 
 Unsealed. 
 
 Attachment against sheriff of Saratoga for failure to return 
 an execution. He answered that the alleged execution was not 
 sealed, and that the deputy who received it and under it received 
 $165 from the judgment debtor, was insolvent and had paid none 
 of it to the sheriff. 
 
 The Court by Sutherland, J. The only question is, whether 
 the process is void or erroneous. The sheriff supposed it to be 
 void, and that the sureties of the deputy were not responsible to 
 him for the money received on the execution. This is a mistake. 
 The process was erroneous and not void, and therefore a^nend- 
 able {Jackson v. Brown, 4 Cowen 550) ; and the money having 
 been received by the deputy colore officii, his sureties are liable and 
 the sheriff is responsible to the plaintiff. The party not having 
 applied to set aside the execution, the sheriff cannot avail himself 
 of defects in it, and must pay the money or stand committed. 
 
 PORTIS V. PARKER. 
 8 Texas 23, 58 Am. Dec. 95. (1852) 
 
 Execution — Val idity — ^Defective Style — Levy — Return. 
 
 Motion to quash an execution, levy, and return. From an 
 order denying the motion defendant appeals. Affirmed. 
 
 The grounds of the motion were that there was no valid levy, 
 and that the writ was not styled according to law. The execution 
 commences : The State of Texas, County of Austin. To the 
 sheriff of said county; Greeting. The effect of the return was 
 that he had levied on 450 head of cattle, more or less, as they run, 
 branded with a gudgeon ; that all of the property was claimed by 
 Rebecca Portis ; and that she had given bond to try her title. 
 
 TV. Holland, for plaintiff in error. 
 
 A''. H. Hunger and /. B. Jones, for defendant in error. 
 
 The Court by Hemphill, C. J. The objection to this return 
 
FORM AND ESSENTIALS OF THE PAPERS. 287 
 
 is that it nowhere shows an actual seizure of the property or 
 the performance of any such act by way of asserting title as 
 would have subjected the sheriff to an action for the trespass, 
 were he not protected by the process. In the case of Bryan et al. 
 V. Bridge et al., 6 Texas 137, we held at the last term that an actual 
 possession of personal property was essential to the validity 
 of the levy, and that the act of taking possession must 
 be of such character as would make the officer, if not protected 
 by the process, liable for the trespass. * * * [*^7] * * * It 
 may be admitted that the return of the sheriflf, if the claim had 
 been interposed by some third party, would have been insufficient 
 without amendment and without proof, aliunde, of facts establish- 
 ing the notoriety of the levy and a disturbance of the possession 
 of the defendant ; but under all the circumstances indicated by the 
 return in this case we deem the levy sufficient, and that its validity 
 cannot be disputed by the defendant. If the sheriff were sued for 
 a trespass to the property he could not contest [*^<?] the fact of 
 seizure. * * * 
 
 It is difficult to prescribe any special mode for a levy upon 
 wild cattle. A levy must combine notoriety with such seizure as 
 would enable the sheriff to control and keep in safety the property. 
 At the same time the possession must be according to the nature 
 of the property, and the act of the sheriff should not subject the 
 defendant to any unnecessary expenses to be incurred for its pre- 
 servation. If wild cattle were penned and fed until the day of sale, 
 the expenses would consume a great portion of the property. If 
 herdsmen were employed to guard them, the charges would be 
 onerous on the defendant. It may be said that the latter can always 
 avoid such expense by giving bond for delivery. This might not 
 always be convenient, and in many cases would be oppressive. As 
 the subject of a proper rule in such cases has not been discussed 
 by counsel, I will waive further remarks. 
 
 As the argument has extended to the validity of the execution, 
 though no prayer is made that it be quashed, I will barely say that 
 the objection to the style of the process, where this has performed 
 its functions and the rights of parties depend on its validity, can- 
 not be sustained. The terms employed here may be treated either 
 
2,88 i'ROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 as a style or as a caption. No caption, no venue, in fact is neces- 
 sary. The addition of the name of the county may be rejected as 
 surplusage, and "The State of Texas" would then stand alone and 
 give character and style to the process. Had the objection been 
 taken to the process in limine, it might have been quashed or 
 -amended, [*^p] and such would be the better practice. The style, 
 as such, gives authority to the officer, and it should not be coupled 
 with additions which, if not rejected, would reduce it to a mere 
 description of the place whence the process emanated. We are of 
 ■opinion that there was no error in the judgment, and it is ordered 
 that the same be affirmed. 
 
 Judgment affirmed. 
 
 BACKALAN v. LITTLBPIBLD. 
 64 North Carolina 233. (1870) 
 
 Attachment Writ — Validity Without Return-day — Effect of Appearance. 
 
 Motion to quash a summons and warrant of attachment for 
 irregularities. From an order granting the motion plaintiff ap- 
 j)eals. Reversed. 
 
 The Court by Rodman, J, * * * The attachment was irregu- 
 lar, because it did not state when and where it should be returned, 
 ,S. 203, C. C. P. ; and it is contended that it was void, and that the 
 ^defect could not be cured by any subsequent waiver. It seems to 
 us, however, that the attachment, in this case, was merely irregular, 
 .and that the irregularity was waived by the defendants appearing, 
 and giving the undertaking required to have a return of the prop- 
 erty. I have not seen, anywhere, an attempt made to draw the 
 line in principle, between process [*.?55] which is void, and that 
 which is only voidable, although the difference is important in its 
 •consequences, for the sheriff may justify, under voidable process, 
 T)ut not under void ; the books confine themselves to giving illus- 
 trations of each, i Tidd, Pr., 512; McNamara on Nullities. The 
 only object there can be in requiring an attachment to have a cer- 
 tain time and place of return, is, that the defendant may know when 
 and where to appear, and move in it. In this case, the defendant, 
 through advertisement, and otherwise, obtained sufficient knowl- 
 <edge, and therefore, was not, in any way damaged by the omission. 
 
FORM AND ESSENTIALS OF THE PAPERS. 289 
 
 We think the judge erred in quashing the attachment, and that the 
 defendant was entitled to plead to the complaint. 
 
 Judgment reversed. 
 
 MILBURN V. STATE to use of Ray & Wife. 
 11 Missouri 189, 47 Am. Dec. 148. (1847) 
 
 Action on the official bond of Milburn as sheriff of St. Louis 
 county, for that Milburn did not return a certain execution as he 
 was commanded. Defendant pleaded seven pleas, one of them 
 that the writ was not returnable in any term. Plaintiff had judg- 
 ment, and defendant appeals. Affirmed. 
 
 The Court by Napton, /. * * * This suit is based upon the 
 provisions of the 52d section of the execution law, as it stood in 
 the Rev. Code of 1835. That section made the sheriff liable upon 
 failing to return a writ according to law, for the whole amount of 
 money specified in the writ. The writ in this case was made 
 returnable in vacation, whereas the law requires it to be made 
 returnable to the next succeeding term, unless the plaintiff other- 
 wise directs. Does tliis error make the writ void? The authori- 
 ties cited at the bar are decisive upon this point. A writ returnable 
 out of term is merely erroneous and not void. Campbell v. Cunv- 
 ming, 2 Burrows 1187; Cramer v. Van Alstyne, 9 Johns. 386. 
 
 A process merely erroneous is a justification to the officer who 
 executes it ; and on the other hand, the officer who fails to execute 
 it, and is sought to be held responsible for such delinquency, can- 
 not take advantage of the error. 2 Saund. loi, n. 2, and cases 
 there cited. 
 
 If we take these principles to be settled in relation to final 
 process, we do not see how the defendant can escape the penalty 
 affixed by law to his failure in not returning the execution against 
 Dodd, according to the directions of the law, regardless of the 
 mistake of the clerk who issued it. The case in 7 Ky. (4 Bibb) 
 322, Wilson V. Huston, is directly in point. The execution in that 
 case, was made returnable more than 90 days from its teste, when 
 by the law of Kentucky, the execution should have been return- 
 able in 90 days. The court held that the return was fixed by law ; 
 that the writ was not void, but that the sheriff was bound to obey 
 
 19 
 
290 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 it; that the sheriff was bound to take notice of the law, and 
 as the return day was fixed by the law, his duty was to return 
 it on that day and not on the one erroneously specified in the 
 writ. It is impossible to distinguish that case from this in prin- 
 ciple. Instead of being returnable within 90 days, as in Ken- 
 tucky, the writ here is returnable, as in England, in term time, 
 and the authorities upon which the Kentucky court rested their 
 opinion are more directly and literally applicable -to our statute 
 than to theirs. 
 
 The hardship of the case is most manifest ; but it grows out 
 of the statute, which inflicts a penalty upon the sheriff greatly 
 disproportioned in many cases to the delinquency. The principles 
 of law affixing the sheriff's liability [*7p^'] are the same, which 
 in other cases would be essential to his protection. 
 
 McBride, J., concurring, the judgment is affirmed. Scott, /., 
 did not sit. 
 
 CRAMER V. VAN ALSTYNE. 
 Johnson's Rep. (New York) 386. (1812) 
 
 Motion to amend a ca. sa. on file by changing the return day. 
 
 Per Curiam. The case of Campbell v. Cumming, 2 Burr. 
 1 187, is in point. Where an execution is returnable out of term 
 it is not void, though liable to be set aside on motion for irreg- 
 ularity. It may, therefore, be amended, though it would be other- 
 wise as to mesne process. We grant the motion to amend on 
 payment of costs. 
 
 BANK OP MISSOURI v. MATSON. 
 26 Missouri 243, 72 Am. Dec. 208. (1858) 
 
 Attachment — Defective Writ — Bad Return-day — Release of Surety by 
 Abandoning Collateral. 
 
 Action by the Bank of Missouri against Matson as surety 
 on a promissory note executed by one Lennox, and indorsed to the 
 plaintiff. Defendant claimed a discharge by virtue of a release 
 of an attachment of Lennox's property in an action by the plain- 
 tiff against him on this note. The attachment mentioned was 
 issued March 20, 1849, ^^'^ made returnable April 2, following. 
 The plaintiff claims that the attachment was therefore void, and 
 
FORM AND ESSENTIALS OF THE PAPERS. 291 
 
 the bank justified in dismissing it. Defendant insists that the 
 attachment was not void because returnable too soon, and was 
 not made bad by reason of containing a summons also returnable 
 too soon. 
 
 The Court by Napton, J. In this case the bank relies on the 
 nullity of the writ of attachment to show that no lien was acquired, 
 and therefore that she was exempt from the operation of the rule 
 that a creditor who gets a lien on the property of the principal 
 debtor and voluntarily lets it go discharges the security. The 
 question of diligence or negligence on the part of the bank is not 
 in the case. That doubts may have been with propriety enter- 
 tained in relation to the validity of this writ of attachment is quite 
 manifest, and we would be very reluctant to hold the bank to a 
 forfeiture of her security merely by reason of a wrong decision 
 upon this point. 
 
 Few questions in a lawyer's practice could arise more embar- 
 rassing in their determination than such as require him to fix 
 upon the line where a writ ceases to be a nullity and is merely 
 erroneous. Decisions have fluctuated, and contradictory cases may 
 be found. Neither ancient nor modern cases point out very clearly 
 a rule by which such questions can be decided. I will briefly 
 advert to some general principles which in my judgment ought to 
 control the decision of such questions. Mesne process, whose 
 object is notice, ought to be governed by different rules from final 
 process; and the adjudged cases keep this distinction in view. 
 Final process has been always construed with favor, where mis- 
 takes have no tendency to oppression. It is important that the offi- 
 cer should be protected, and that the purchaser under an execution 
 should get a good title. The writ of capias, whether used as 
 mesne or final process, has always been construed with strict- 
 ness for obvious reasons which have no application to our writ 
 of summons. A distinction may also reasonably obtain .between 
 writs issuing from courts of general and those emanating from 
 courts of limited jurisdiction. There is sound policy in requiring 
 justices of the peace to conform closely to the statutory power 
 confided to them, not with reference to the mere forms of their pro- 
 ceedings, but with reference to the line of their jurisdiction. 
 
292 PROCESSES TO OBTAIN SATISFACTION" OF JUDGMENTS. 
 
 Writs 1*248] issuing from courts of record, where proceedings 
 are more dilatory and are under the supervision of the judges, 
 the bar, and the pubHc, may properly be regarded with more 
 leniency. 
 
 These considerations will probably show that the cases of 
 Sanders v. Rains, 10 Mo. 770, and Milburn v. Gilinan, 11 Mo. 64, 
 are not conflicting. Neither of .these cases is, however, decisive 
 of the question here. The writ of attachment, although contain- 
 ing a clause of summons, and although usually and in this 
 instance the commencement of proceedings, is really more nearly 
 allied to final than to mesne process. It is substantially a writ of 
 execution, except that it emanates at the begiriing instead of the 
 termination of a suit. Its object is to seize and hold property 
 subject to the claims sued on and to satisfy them. The suggestion 
 of the counsel for the defendant in this case, that the validity of 
 the writ of attachment ought not to depend upon the validity of 
 the clause of summons contained in it, is entitled to consideration. 
 It may seem novel, and the statute makes the clause of summons 
 an essential portion of the writ of attachment, but in effect they 
 may be regarded as two separate writs, and with separate objects — 
 the one directing the officer to seize property as a security for the 
 creditor^ — the other directing the officer to advise the debtor of 
 what has been done. Of course the court will not permit the prop- 
 erty seized to be subjected to the payment of the debt, unless 
 the debtor is legally advised of the proceedings ; but it is not per- 
 ceived why the invalidity or total nullity of the summons should 
 necessarily make the attachment also a nullity. The summons 
 is a constituent part of the attachment and may be conceded to 
 te a mere nullity ; yet it does not follow, for this reason alone, that 
 the attachment is void, and the levy under it illegal, and the officer 
 a trespasser. The defendant may appear, the writ may be 
 amended, or a new summons issued. All this only tends to delay 
 the creditor, not to oppress the debtor. If the property has been 
 improperly attached, the statute has provided an ample remedy 
 in the bond and security required of the creditor. [*.?^p] 
 
 If the writ in this case had been a simple summons and made 
 retyrnable sooner than the law authorized and a judgment by de- 
 
FORM AND ESSENTIALS OF THE PAPERS. 293 
 
 fault was taken, the validity of such a judgment might be ques- 
 tioned. But that is not this case. The writ of attachment is 
 made returnable at a day earlier than by law is warranted. Under 
 this writ property is taken and the party defendant summoned. 
 So far as the summons is concerned it may be regarded as a nul- 
 lity, although we would not be understood as so deciding; and 
 yet the remainder of the writ, under which the levy is made, does 
 not necessarily fall with the summons. It is like an execution, and 
 ought to be governed by the rules which are applicable to execu- 
 tions. An execution returnable at a day later than by law it 
 should have been, has been held only voidable. Milbuni v. Gilman, 
 II Mo. 64. To hold the attachment a nullity is to make the 
 officer and all concerned in its levy trespassers. We see no injury 
 which can result from considering the writ only voidable. * * * 
 
 Scott, J., concurring, the judgment is affirmed ; Richardson, I., 
 dissents, being of the opinion that the writ of attachment was void. 
 
 DE LOACH V. ROBBINS. 
 102 Alabama 288, 48 Am. St. Rep. 46, 14 South. 777. (1893) 
 
 Execution Sale — Collateral Attack — Variance between Writ and Judg- 
 ment — Parol Proof — Premature Execution — Execution 
 on Dormant Judgment. 
 
 Statutory ejectment by John DeLoach against T. J. Robbins. 
 From judgment for defendant plaintiff appeals. Reversed. 
 
 /. W. Posey, for appellant. 
 
 /. N. Miller, contra. 
 
 The Court by Haralson, J. i. While it is true that an exe- 
 cution should follow and correspond with the judgment on which 
 it issues, yet, justice and reason do suggest, that mere clerical 
 errors or failures to recite the judgment with strictness ought not 
 to avoid the execution ; and it is everywhere, so far as we have ob- 
 served, so decided. And when an execution is offered in evi- 
 dence to support a sale made under it by a sheriff after levy, and it 
 varies from the judgment in some respects, the question then before 
 the court is, "Did this execution issue on this judgment? If from 
 the whole writ, taken in connection with other facts, the court 
 feels assured that the execution offered in evidence was intended, 
 
294 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 issued and enforced as an execution upon the judgment shown 
 to the court, then we apprehend, the writ ought to be received and 
 respected. * * * Where sufficient appeared on the face of the 
 execution to connect it with the judgment, courts have frequently 
 disregarded variances in the names of parties, in the date or in the 
 amount of the judgment." — P'reeman on Executions, § 43, and 
 authorities there cited; 7 Amer. & Eng. Encyc. of Law (ist Ed.) 
 123-4, n. 13; Samples v. JValker, 9 Ala. y26;McCoUum. v. Hitb- 
 bert, 13 Ala. 282; Steele v. Tutwiler, 68 Ala. 107; Sandlin v. 
 Anderson, 76 Ala. 403; Davis v. Kline, 76 Mo. 310. In the case 
 last named two executions and the sheriff's deed thereon recited 
 judgments in the year 1875, while the minutes of the court 
 showed they were rendered in 1876. There being other evidence 
 to show that the executions were in fact issued on these judg- 
 ments, it was held that the variance was a clerical misprision, and 
 would not invalidate the execution. 
 
 2. Where an execution has prematurely issued on a valid 
 judgment, as we have held, it is not on that account void, but only 
 irregular and voidable, and not having been set aside in a direct 
 proceeding for that purpose, [*-?P5l a sale under it cannot be collat- 
 erally impeached ; and, where execution has issued after the lapse of 
 ten years from the date of the last preceding one it is merely irregu- 
 lar and voidable, and a sale under it, as for such an irregularity, as 
 we have repeatedly held, will be sustained. — Sandlin v. Anderson, 
 76 Ala. 403; Leonard v. Brewer, 86 Ala. 2>9'^'Waldrop v. Fried- 
 man, go Ala. 157; Olmstead v. Brewer, gi Ala. 124. 
 
 3. Parol evidence is always admissible to point out and 
 connect the writing with the subject matter, and identifying the ob- 
 ject proposed to be described. And so such evidence is admissible 
 to explain away any mere immaterial and not substantive varia- 
 tions between an execution and the judgment on which it is 
 issued. — Guilmartin v. Wood, 76 Ala. 204; Corbitt v. Reynolds, 
 68 Ala. 378; Doe v. Pickett, 51 Ala. 584. And, on still higher 
 grounds, the execution docket of the clerk is admissible, in such 
 connections, to identify and unite a judgment and executions which 
 issued on it, for this is record evidence, such as the law requires to 
 be kept for such purposes among others. — Code, § 768, sub-div. 7. 
 
FORM AND ESSENTIALS OF THE PAPERS. 295 ' 
 
 4. Let the foregoing principles be applied to this case. The 
 two judgments on which the executions issued were, so far as 
 appears, in all respects regular and valid, one in favor of John 
 De Loach, as administrator of John Black, at the fall term of 
 the circuit court of Monroe county, 1868, against defendant, 
 T. J. Robbins, for $684.95, besides costs; and the other, m 
 favor of John Bj Colly against the defendant, at the spring 
 term of said court, 1873, for $239.53, ^"^d costs. Executions 
 issued, as was shown, on each of these judgments, returnable 
 to the next term of the court after their rendition, respectively. 
 The plaintiff in the second judgment, John B. Colly, died after 
 its rendition, and plaintiff DeLoach became his administrator, and, 
 on proof of these facts by affidavit of plaintiff, the clerk of the court 
 thereafter issued execution on said judgment in favor of the plain- 
 tiff, as administrator of said Colly, under which the land in question 
 was sold by the sheriff, and plaintiff became the purchaser, the sale 
 having been made under this and the other execution issued in the 
 Black administration case at the same time. 
 
 In the other case — that of DeLoach, administrator of Black, 
 against the defendant — after the issuance of the [*2p6] original 
 execution, aliases were issued on the 25th of October, 1876, 15th 
 of May, 1887, and 9th of June, 1885. In some of these there were 
 irregularities, some slight and others of a graver character. It is 
 unnecessary to mention them. A sale of the property levied on 
 was made by the sheriff under the last named execution, but when 
 it was offered, and the sheriff's deed with it, objection was made 
 on account of a variance between the judgment and execution. 
 The plaintiff offeted evidence, all of which was admissible for the 
 purpose, to explain the variance and to show that it was the result 
 of clerical error, and that the execution, as a, matter of fact, issued 
 on the judgment in evidence. The objection of the defendant to 
 the introduction of this evidence was improperly sustained by the 
 court. It showed a judgment against the defendant, an execution 
 thereon, levy and sale to the plaintiff by the sheriff, and a proper 
 deed from him to the plaintiff, to convey the interest of defendant 
 in the lands. But if there were any legal objections to the validity 
 of the sale under this execution, alias executions were issued after- 
 
296 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 wards on both of said judgments — presumably to obviate any ir- 
 regularities which might have intervened as affecting the first sale, 
 by which it might be set aside — were placed in the hands of the 
 sheriff, together with the execution in the Colly case, were both 
 levied on the same land, which was sold thereunder by the sheriff, 
 and plaintiff again became the purchaser, and the sheriff made him 
 a deed, in all respects formal and duly executed, to convey to him 
 the right and title to the lands as sold under said execution. The 
 only alleged barrier to the validity of this last sale, so far as 
 appears, is, that the execution in the DeLoach judgment was 
 issued on a judgment on which no execution had issued for more 
 than ten years, a fact not sustained by the evidence, but which, if 
 true, did not render said sale void, even as to that execution. 
 A sheriff's sale, when made under two executions, as in this case, 
 either of which is valid, is sufficient to transfer to the purchaser 
 the defendant's title to the property sold. — 12 Amer. & Eng. Encyc. 
 of Law (ist Ed.) 225, note 4.* * * [*2oy] 
 
 Reversed and remanded. 
 
 GORDON V. CAMP. 
 3 Pennsylvania State (3 Barr) 349, 45 Am. Dec. 647. (1846) 
 
 Execution — Validity of Sale — Address — Who Execute. 
 
 Replevin in Bradford common pleas by Sill Camp agamst 
 Gordon. At the trial Camp showed title in himself and rested. 
 Defendant offered in evidence a judgment of a justice of the 
 peace against Camp and another, execution thereon to the con- 
 stable of Herrick township, and a return thereon by the constable 
 of Standing-Stone township, showing a levy and sale of the prop- 
 erty to the defendant. This evidence was rejected and judgment 
 given for the plaintiff. 
 
 The Court by Burnside, J. * * * [*J5o] It has been held 
 
 that a warrant directed by the justice to constable, if it is 
 
 executed hy the proper constable of the district, is well directed. 
 The reason given is, that the word constable, with a blank, can- 
 not be said to be directed to the wrong constable, and may be 
 understood as directed for the right one. It is better to direct it 
 to the constable by name, or to the constable of the district gen- 
 erally. Paul V, Vankirk, 6 Binn. (Pa.) 125. 
 
FORM AND ESSENTIALS OF THE PAPERS. 297 
 
 A justice issued an execution directed to the constable of 
 B. district, four miles from the township of A., where the de- 
 fendant resided, a township lying between them; it was held,, 
 that as the act was directory, the justice was to determine the 
 next constable most convenient to the defendant, and that the 
 execution was for that reason not void. Smith v. Schell, 13 Serg. 
 & Rawle, 336. 
 
 No case has been decided, that an execution directed to the 
 constable of a particular township, can be handed over by him 
 to the constable of another township, to whom it was not directed, 
 and that the latter could legally execute it. 
 
 Here the execution was directed to the constable of "Her- 
 rick," who gave it to the constable of "Standing- Stone." Every- 
 act done by the constable of Standing- Stone was, illegal. His 
 sale was as if no execution had issued. His acts were utterly 
 void ; and he was a trespasser. It is contended we should sanc- 
 tion this practice, because it prevails, and is convenient in Brad- 
 ford county. If so, the sooner an end is put to the practice, 
 the better. There is no law to authorize it ; and all trading be- 
 tween constables leads to corruption and injustice, and should 
 be discouraged. [*J5J] 
 
 It does not appear that any money was paid, and the con- 
 stable returned, not that he had received the money, but that he 
 had sold for $39.75. Sale indemnified by James Gordon, nth 
 March, (the sale was on the loth,) the above property replev- 
 ied. Signed H. S. Stephens, constable of Standing-Stone. 
 
 The rejection of this return of sale is the only error com- 
 plained of. In so doing, the court was clearly right. 
 
 The judgment is affirmed. 
 
 Cooley, J. "The case of the officer is next to be considered. It is 
 Claimed, first, that he is liable [in trespass by the judgment debtor for 
 the wrongful levy after defendant had appealed from the judgment 
 on which the execution was issued] because the process was not ad- 
 dressed to him. and therefore he had no authority to serve it. But the 
 statute expressly empowers sheriffs to serve the process which con- 
 stables may execute (Comp. Laws, 1871, § 568) ; and it does not require 
 that there should be any special direction for the purpose. * * * No 
 error was therefore committed in holding the officer not liable." Pos- 
 ter V. Wiley, 27 Mich. 244, 15 Am. Rep. 185. 
 
298 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 HENDERSON v. SPECKBR. 
 79 Kentucky 509. (1881) 
 
 The Court by Hargis, J. The appellees, on Feb. 17th, caused 
 a general attachment against the property of Maddox to be 
 issued and directed to the sheriff, which was on the same day- 
 served upon Boyd as garnishee by a constable. On the next day 
 thereafter the appellants also sued out an attachment against 
 Maddox's property, and had it directed to the sheriff or any con- 
 stable. It was served upon Boyd by a constable, who delivered 
 him a copy of the attachment. Thereupon the appellees caused 
 a second attachment to issue directed to the sheriff, who exe- 
 cuted it upon Boyd by delivering to him a copy of the attach- 
 ment, with a notice specifying the debt attached indorsed on 
 the back of it. Boyd paid the amount of the debt owing by him 
 to Maddox into court, and it was adjudged that appellees had ob- 
 tained priority to the fund under their attachment, over the ap- 
 pellants who prosecute this appeal to reverse that judgment. 
 
 Any officer to whom the summons is or might have been di- 
 rected may serve it according to §47 Civ. Code ; but this is not the 
 case with reference to the service of attachments, as there is no 
 provision of the code which authorizes the service of an attach- 
 ment by any officer to whom it might have been directed, but to 
 whom it is not in fact directed. * * * [*5-''J] * * * It must 
 therefore follow that the service of appellees' first attachment 
 by the constable, when it was directed to the sheriff, was illegal, 
 as appellees' second attachment and appellants' only attachment, 
 were each executed by the officer to whom they were directed, 
 the question of priority must be determined by the manner in 
 which the attachments were executed * * * 
 
 As the execution of appellees' second attachment was ac- 
 companied by the statutory notice, they were properly [*5i^] 
 adjudged priority over the appellants, whose attachment was 
 not executed in conformity to the sub-section named. Civ. Code, 
 
 ^203,. 3. 
 
 Judgment affirmed. 
 
c. THE EXECUTION OF THE PROCESSES. 
 
 1. THE LEGISLATURE'S POWER TO CHANGE THE REMEDY. 
 
 EDWARDS V. KEARZEY. 
 96 United States 595. (1877) 
 
 •Constitutional Law — Obligation, Contract, and Impairing Defined — Ex- 
 
 enaption Laws — Stay Laws — Limitation of Actions — 
 
 Imprisonment for Debt. 
 
 Error to the supreme court of the state of North Carolina. 
 
 This action was commenced by Leonidas C. Edwards, March 
 31, 1869, in the superior court of Granville county, North Caro- 
 lina, against Archibald Kearzey, to recover the possession of cer- 
 tain lands in that county. They were levied upon and sold by the 
 •sherifif, by virtue of executions sued out upon judgments rendered 
 against Kearzey, on contracts which matured before April 24, 
 1868, when the constitution of North Carolina took effect, the 
 "tenth article of which exempts from sale under execution or other 
 tinal process, issued for the collection of any debt, the personal 
 ■property of any resident of the state, and "every homestead, and 
 the dwelling and buildings used therewith, not exceeding in value 
 -$i,ooo, to be selected by the owner thereof." Prior to that date, 
 under statutes since repealed, certain specified articles of small 
 value, and such other property as the freeholders appointed for 
 that purpose might deem necessary for the comfort and support 
 •of the debtor's family, not exceeding in value $50 at cash valua- 
 tion, and fifty acres of land in the county and two acres in the town 
 ■of not greater value than $500, were exempt from execution. 
 The lands in question were owned and occupied by Kearzey as a 
 homestead, and as such were set off to him pursuant to the mode 
 -prescribed by the legislation for carrying the constitutional pro- 
 vision into effect. He had no other lands, and they did not exceed 
 :$i,ooo in value. , 
 
300 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 Edwards was the purchaser at the sheriff's sale of said lands, 
 and received a deed therefor. 
 
 The court found for Kearzey, upon the ground that so much 
 of said art. lo as exempts from sale, under execution or other 
 final process obtained on any debt, land of the debtor of the value 
 of $i,ooo, and the statutes enacted in pursuance thereof, embrace 
 within their operation executions for debts which were contracted 
 before the adoption of said constitution ; and that said article and 
 said statutes, when so interpreted and enforced, are not repugnant 
 to art. I, sect. lo, of the constitution of the United States, which, 
 ordains that no state shall pass any law impairing the obligation 
 of contracts. 
 
 Judgment having been rendered upon the finding, it was, on 
 appeal, affirmed by the supreme court of the state. Edwards, 
 then sued out this writ of error. 
 
 Joseph B. Batchelor and Edward Graham Haywood for the 
 plaintiff in error. 
 
 A. W. Tourgee, contra. 
 
 Sivayne, /. * * * The only federal question presented by 
 the record fs, whether the exemption was valid as regards con- 
 tracts made before the adoption of the constitution of 1868. 
 
 The counsel for the plaintiff in error insists upon the negative 
 of this proposition. The counsel upon the other side, frankly 
 conceding several minor points, maintains the affirmative view. 
 Our remarks will be confined to this subject. 
 
 The constitution of the United States declares that "no state 
 shall pass any . . . law impairing the obligation of contracts.'' 
 
 A contract is the agreement of minds, upon a sufficient con- 
 sideration, [*(5oo] that something specified shall be done, or shall 
 not be done. 
 
 The lexical definition of "impair" is "to make worse ; to dim- 
 inish in quantity, value, excellence, or strength; to lessen in 
 power ; to weaken ; to enfeeble ; to deteriorate.'' Webster's Diet. 
 
 "ObHgation" is defined to be "the act of obliging or binding;, 
 that which obligates ; the binding power of a vow, promise, oath, 
 or contract," &c. Id. 
 
 "The word is derived from the Latin word obligato, tying" 
 
legislature's power to change remedy. 301 
 
 up ; and that from the verb obligo, to bind or tie up ; to engage by 
 the ties of a promise or oath, or form of law ; and obligo is com- 
 pounded of the verb ligo, to tie or bind fast, and the preposition 
 ob, which is prefixed to increase its meaning." Blair v. Williams 
 and Lapsley v. Brashears, 4 Litt. (Ky.) 65. 
 
 The obHgation of a contract includes every thing within its 
 obligatory scope. Among these elements nothing is more impor- 
 tant than the means of enforcement. This is the breath of its vital 
 existence. Without it, the contract, as such, in the view of the 
 law, ceases to be, and falls into the class of those "imperfect obli- 
 gations," as they are termed, which depend for their fulfilment 
 upon the will and conscience of those upon whom they rest. The 
 ideas of right and remedy are inseparable. "Want of right and 
 want of remedy are the same thing." i Bac. Abr., tit. Actions in 
 General, letter B. 
 
 In Von Hoffman v. City of Quincy (4 Wall. 53S), it was 
 said: "A statute of frauds embracing pre-existing parol contracts 
 not before required to be in writing would affect its validity. A 
 statute declaring that the word 'ton' should, in prior as well as 
 subsequent contracts, be held to mean half or double the weight 
 before prescribed, would affect its construction. A statute pro- 
 viding that a previous contract of indebtment may be extinguished 
 by a process of bankruptcy would involve its discharge; and a 
 statute forbidding the sale of any of the debtor's property under a 
 judgment upon such a contract would relate to the remedy." 
 
 It cannot be doubted, either upon principle or authority, that 
 each of such laws would violate the obligation of the contract, 
 [*(5oj] and the last not less than the first. These propositions seem 
 to us too clear to require discussion. It is also the settled doctrine 
 of this court, that the laws which subsist at the time and place of 
 making a contract enter into and form a part of it, as if they were 
 expressly referred to or incorporated in its terms. This rule em- 
 braces alike those which affect its validity, construction, discharge, 
 and enforcement. Von Hoffman v. City of Quincy, supra; Mc- 
 Cracken v. Hayzvard, 2 How. 608. 
 
 In Green v. Biddle (8 Wheat, i), this court said, touching 
 the point here under consideration : "It is no answer, that the acts 
 
302 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 of Kentucky now in question are regulations of the remedy, and 
 not of the right to the lands. If these acts so change the nature 
 and extent of existing remedies as materially to impair the rights- 
 and interests of the owner, they are just as much a violation of 
 the compact as if they overturned his rights and interests." 
 
 "One of the tests that a contract has been impaired is, that its 
 value has by legislation been diminished. It is not by the con- 
 stitution to be impaired at all. This is not a question of degree 
 or manner or cause, but of encroaching in any respect on its obli- 
 gation, — dispensing with any part of its force." Planters' Bank 
 v. Sharp et al., 6 How. 301. 
 
 It is to be understood that the encroachment thus denounced 
 must be material. If it be not material, it will be regarded as of 
 no account. 
 
 These rules are axioms in the jurisprudence of this court. 
 We think they rest upon a solid foundation. Do they not cover 
 this case ; and are they not decisive of the question before us ? 
 
 We will, however, further examine the subject. 
 
 It is the established law of North Carolina that stay laws are 
 void, because they are in conflict with the national constitution. 
 Jacobs V. Smallwood, 63 N. C. 112; Jones v. Crittenden, i Law 
 Repos. (N. C.) 385; Barnes v. Barnes et al., 8 Jones L. (N. C.) 
 366. This ruling is clearly correct. Such laws change a term of 
 the contract by postponing the time of payment. This impairs its 
 obligation, by making it less valuable to the creditor. But it (Joes 
 this solely by operating on the remedy. The contract is not other- 
 wise touched by the offending law. Let us suppose a case. A 
 party recovers two judgments, [*(5o^] — one against A., the other 
 against B., — each for the sum of $1,500, upon a promissory note. 
 Each debtor has property worth the amount of the judgment, and 
 no more. The legislature thereafter passes a law declaring that 
 all past and future judgments shall be collected "in four equal 
 annual installments." At the same time, another law is passed, 
 which exempts from execution the debtor's property to the amount 
 of $1,500. The court holds the former law void and the latter 
 valid. Is not such a result a legal solecism? Can the two judg- 
 ments be reconciled ? One law postpones the remedy, the other 
 
legislature's power to change remedy. iJO?- 
 
 destroys it ; except in the contingency that the debtor shall acquire 
 more property, — a thing that may not occur, and that cannot occur 
 if he die before the acquisition is made. Both laws involve the 
 same principle and rest on the same basis. They must stand or 
 fall together. The concession that the former is invalid cuts away 
 the foundation from under the latter. If a state may stay the 
 remedy for one fixed period, however short, it may for another,, 
 however long. And if it may exempt property to the amount here 
 in question, it may do so to any amoxmt. This, as regards the 
 mode of impairment we are considering, would annul the inhibi- 
 tion of the constitution, and set at naught the salutary restriction 
 it was intended to impose. * * *- 
 
 Imprisonment for debt is a relic of ancient barbarism. Coop- 
 er's Justinian, 658; 12 Tables, Tab. 3. It has descended with the 
 stream of time. It is a punishment rather than a remedy. It is 
 right for fraud, but wrong for misfortune. It breaks the spirit of 
 the honest debtor, destroys his credit, which is a form of capital, 
 and dooms him, while it lasts, to helpless idleness. Where there 
 is no fraud, it is the opposite of a remedy. Every right-minded 
 man must rejoice when such a blot is removed from the statute- 
 book. 
 
 But upon the power of a state, even in this class of cases, 
 [*(5pj] see the strong dissenting opinion of Mr. Justice Washing- 
 ton, in Mason v. Haile, 12 Wheat. 370. 
 
 Statutes of limitation are statutes of repose. They are neces- 
 sary to the welfare of society. The lapse of time constantly car- 
 ries with it the means of proof. The public as well as individuals- 
 are interested in the principle upon which they proceed. They do 
 not impair the remedy, but only require its application within the 
 time specified. If the period limited be unreasonably short, and 
 designed to defeat the remedy upon pre-existing contracts, which, 
 was part of their obligation, we should pronounce the statute void. 
 Otherwise, we should abdicate the performance of one of our most 
 important duties. * * * [*(5o7] * * * 
 
 We think the views we have expressed carry out the intent 
 of contracts and the intent of the constitution. The obligation 
 of the former is placed under the safeguard of the latter. Na 
 
•304 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 State can invade it ; and Congress is incompetent to authorize such 
 invasion. Its position is impregnable, and will be so while the or- 
 ganic law of the nation remains as it is. The trust touching the 
 subject with which this court is charged is one of magnitude and 
 delicacy. We must always be careful to see that there is neither 
 nonfeasance or misfeasance on our part. 
 
 The importance of the point involved in this controversy in- 
 duces us to restate succinctly the conclusions at which we have 
 ^arrived, and which will be the ground of our judgment. 
 
 The remedy subsisting in a state when and where a contract 
 is made and is to be performed is a part of its obligation, and any 
 subsequent law of the state which so affects that remedy as sub- 
 stantially to impair and lessen the value of the contract is forbid- 
 den by the constitution, and is, therefore, void. 
 
 The judgment of the supreme court of North Carolina will 
 be reversed, and the cause will be remanded with directions to 
 proceed in conformity to this opinion ; and it is 
 
 So ordered. 
 
 Clifford and Hunt, ]]., concurred in the judgment. Harlan, 
 J., dissented. 
 
 The doctrine announced in this case is now well established; and 
 expressions to the contrary, many of which will be found in the earlier 
 state reports, are of small practical importance, since this federal 
 question is sufficient to take the case from the supreme court of any 
 state to the supreme court of the United States, where the decision will 
 be reversed if a law impairing the remedy has been sustained as to pre- 
 existing contracts. 
 
 An Early View. In Sturges v. Crowninshield, 4 Wheaton, at page 
 200, Marshall, C.J., said: "The distinction between the obligation of a 
 ■contract and tjie remedy given by the legislature to enforce that obli- 
 gation has been taken at the bar, and exists in the nature of things. 
 Without impairing the obligation of the contract, the remedy may cer- 
 tainly be modified as the wisdom of the nation shall direct. Confine- 
 ment of the debtor may be a punishment for not performing his con- 
 tract, or may be allowed as a means of inducing him to perform it. But 
 the state may refuse to inflict this punishment, or may withhold this 
 means and leave the contract in full force. Imprisonment is no part 
 of the contract and simply to release the prisoner does not impair its 
 -obligation." 
 
legislature's power to change remedy. 305 
 
 HEINEMAN v. SCHLOSS. 
 83 Michigan 153, 47 N. W. 107. (1890) 
 
 Changing Form of Remedy Without Affecting Substance — Retrospective 
 
 Laws. 
 
 Garnishment by Emil S. Heineman et al., against Seligman 
 Schloss et al., as garnishees of Rachel Solomon, judgment de- 
 fendant. From judgment on verdict directed in discharge of the 
 garnishees plaintiffs bring error. Reversed. 
 
 Plaintiffs sought to charge the garnishees for the proceeds of 
 a stock of goods mortgaged to the garnishees in 1888, and, as 
 plaintiffs allege, to defraud the principal defendant's creditors. 
 
 This court held in Folkerts v. Standish, 55 Mich. 463, that a 
 garnishee was not liable for the proceeds of property fraudulently 
 received and converted into money, but afterward an act was 
 passed declaring the garnishee chargeable for such proceeds. 
 Acts of 1889 No. 244. Other facts appear in the opinion of the 
 court. 
 
 Dickinson, Thurber & Stevenson for appellants. 
 
 Julian G. Dickinson for garnishees. 
 
 The Court by Cahill, J. * * * It is insisted on behalf of the 
 defendants that to apply the statute of 1889 to this action would 
 be to give it retroactive effect ; that there is nothing upon the face 
 of the act indicating that it was intended to have such effect ; and 
 that the rule is that all statutes are prospective in their operation, 
 except where a contrary intention is clearly evidenced by the stat- 
 ute itself. The rule contended for by the defendants' counsel is 
 correct, but it does not apply to this case. That rule could 
 have been appealed to in defense of the original garnishee pro- 
 ceeding that was commenced February 7, 1889, because that suit 
 was commenced before the act of 1889 had taken effect. But the 
 garnishee law is purely a remedial statute. It gives no rights and 
 creates no liabilities. Everything that can be accomplished by 
 means of it could have been accomplished by other means if the 
 garnishee law had never been passed. Counsel for defendants 
 says: 
 
 "Under the mortgage, defendants' sale of the property was 
 
 20 
 
306 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 valid under the law as far as plaintiffs are concerned. Could the 
 legislature, by the amendatory enactment, give the plaintiffs a 
 claim upon such property or its value, and make defendants liable 
 therefor ?" 
 
 The trouble with this inquiry is that it does not correctly state 
 the situation of the defendants with reference to this property. If 
 the mortgage under which they took the property was fraudulent, 
 the mortgagees obtained no rights under it, and could not lawfully 
 exercise any rights, as mortgagees, over the property under it. 
 The funds received by them on a sale of the property remained in 
 their hands as equitable assets for the benefit of the creditors of 
 the mortgagor. Under the statute, as it existed prior to the 
 amendment of 1889, this fund could not be reached by garnish- 
 ment, but it was liable to be reached [*I55] in equity. The effect 
 of the amendment is not to enlarge the liability of the defendants, 
 but to render them liable at law instead of in equity, as formerly. 
 Treating the garnishee statute, then, as one affecting the remedy 
 merely, it is not giving the statute of 1889 retroactive effect to ap- 
 ply it to suits commenced after the act took effect, simply because 
 the transaction upon which the suit is based took place before that 
 time. 
 
 In determining whether a statute is retroactive in its effect, 
 regard must be paid to the purpose of it. If the statute is one that 
 confers new rights or creates new liabilities, then to apply it to 
 past transactions, so that new rights and liabilities spring up where 
 none existed when such transactions occurred, is to give it retro- 
 active effect ; but when the statute is one giving a new or different 
 remedy for a pre-existing right or liability, then it is not retro- 
 active, as applied to suits commenced after the act has taken effect, 
 because past transactions are involved in such suit. In the latter 
 case the statute does not relate to or attempt to characterize trans- 
 actions, but gives a certain remedy therefor, and the remedy may 
 be pursued at once after the act takes effect. 
 
 The judgment is reversed, and a neiv trial granted. 
 
 To same effect see Fisher v. Hervey, 6 Colo. 16, and on the gen- 
 eral subject of this topic see 10 Century Digest, title, Constitutional 
 Law, §§ 174-535, and cases there cited. 
 
court's power to control. 307 
 
 2. THE POWER OF THE COURT AND JUDGE TO CONTROL 
 THE WRITS. 
 
 On the general question of jurisdiction prepare again on the 
 cases under that head, especially: Hoagland v. Creed, ante, 13; 
 Cooper V. Reynolds, ante, 15 ; and Windsor v. McVeigh, ante, 38. 
 As to acting without notice compare Balch v. Shaw, ante, 81. 
 
 COMMONWEALTH v. MAGEE. 
 8 Pennsylvania St. 240. (1848) 
 
 Power of Courts Over Their Processes — Jurisdiction of Judge at Cham- 
 bers — Proper Practice Concerning Motions and Interlocutory 
 Orders — Duty of Officer to Notify Creditor of Proceed- 
 ings in the Case — Duty to Obey Orders of the 
 Court — Diligence Required in Execu- 
 tion and Return of Process. 
 
 Debt on official bond by the commonwealth for the use of L. 
 G. Brandebury and G. Klink against Alexander Magee, late sheriff 
 of Perry county, and his sureties, to recover the amount of a /i. fa. 
 given him for collection. From judgment for defendants plaintiff 
 brings error. Affirmed. 
 
 The a. fa. in question was issued and given to the sheriff April 
 9, 1844, returnable at the August term. At the time the writ was 
 given to the sheriff, the defendant had plenty of property liable ; but 
 the sheriff had taken no action under the writ when the judge at 
 chambers made an order in the cause, "May 4th, 1844, in the above 
 case proceedings stayed until the 2nd day of the August Term 
 ensuing this date. John Judkin." Aug. 7th, 1844, a H. fa. was 
 issued on a judgment of John Conrad against the common debtor 
 and on this H. fa. all of the debtor's property was sold 
 
 Brandebury, for plaintiff, contended, (i) that the order was 
 coram nan judice, and no protection to the sheriff, (2) at all events 
 the sheriff became liable by his failure to make return and by con- 
 cealing the order till he had sold the defendant's property on junior 
 executions. 
 
 Reed, contra. 
 
 The Court by Bell, J. It is true a sheriff must use due dili- 
 gence to levy and make the money demanded by an execution 
 
308 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 placed in his hands. What will amount to due diligence must neces- 
 sarily vary with the circumstances of each case ; but it may be 
 safely affirmed that when there are no peculiar reasons known to 
 the sheriff calling for the exertion of unusual energy, and no special 
 request by the plaintiff or his agent for immediate action, a delay 
 such as occurred here before the delivery of the judge's order of 
 the 4th of May, in the absence of collusion or fraud, will not be 
 deemed laches to fix the officer for loss of the debt. Indeed, no 
 fact is suggested on the record tending to show that the lapse of 
 time that intervened between the delivery of the writ and the 
 making of the order, endangered the plaintiff's demand. The 
 execution which eventually swept the goods of the defendant, 
 Ernest, was not issued until long after, and its success was conse- 
 quent, not on the delay of the sheriff, but incidentally upon the 
 legal effect of the judge's interference. 
 
 The inquiry is thus reduced to the single question, whether his 
 -order to stay proceedings was obligatory on the sheriff, or a nul- 
 lity, commanding neither respect nor obedience. 
 
 The authority that a judge exercises at chambers in a cause 
 pending, is the authority of the court itself. Doe dem. Prescoft v. 
 Roe, 9 Bing. (Eng.) 104, 2 Moore & S. 119, i Dowl. P. C. 274. 
 And it may be enforced by attachment issued by the court, for the 
 reason that disobedience of a judge's order is a contempt of the 
 court, and punishable as such. 
 
 It is said, that, upon any other principle than that of delegated 
 authority, it would be difficult to demonstrate the validity of many 
 of the acts done by judges in cases and under circumstances in 
 which the legislature has not specially invested them with power, 
 in their individual capacities. This species of jurisdiction is exer- 
 cised ex necessitate rei to prevent injustice and oppression, and to 
 facilitate and direct the interlocutory proceedings of suits at law. 
 It consequently embraces a variety of subjects more or less import- 
 ant to a proper administration of justice. Some of them are of 
 course ; and the administration of others calls for the exertion of 
 a sound judgment and discretion. It is properly, therefore, under 
 the control of the court from which the authority is derived, and 
 to which a dissatisfied party is at liberty to appeal. Among the 
 
court's power to control. 309 
 
 subjects which reasonably fall within the circle of this jurisdiction, 
 the power of staying an execution issued in vacation has been re- 
 peatedly recognized and acted on. Such an authority to be exer- 
 cised by a single judge, is [*24^] indeed necessary to prevent op- 
 pression, and to prohibit the undue sacrifice of property illegally 
 levied. For these purposes it should be liberally, though cau- 
 tiously, exercised. There can exist, therefore, no doubt that a 
 judge of the court of common pleas possesses authority to make 
 such an order as is complained of here, and, when properly made, 
 that it is obligatory on the officer to whom it is addressed. But 
 while this is conceded, it is insisted that the order under consider- 
 ation was coram non judice, and void for want of previous notice 
 to the plaintiffs in the execution. It is very true that the proper 
 mode of proceeding in most cases is by summons, in the nature of 
 a rule nisi, fixing a day for a hearing, and served on the opposite 
 party. Without this the judge ought not to interfere, unless, in- 
 deed, the order or direction sought is of course. When the order 
 is made, notice of it should be given to the party to be affected by 
 it; otherwise he is at liberty to disregard it. Bagly's Prac. 15 et 
 seq. But notice is not always necessary, for in some cases an 
 order may be without summons. Nor is the omission of it fatal to 
 the validity of the proceeding, ab initio, in any case. Though it is 
 highly proper, and indeed indispensable, to correct practice, a 
 neglect to give it is but an irregularity which, upon application, 
 would furnish a sufficient ground to rescind the order made, but 
 would not justify the officer's refusal to obey it. The power of 
 acting residing in the judge, it is no part of the sheriff's business 
 to inquire whether it has been executed in an orderly manner, or to 
 determine how far the steps properly precedent to the order have 
 been taken. In this respect, the fiat at chambers is analagous to a 
 writ, which the sheriff is bound to execute, though it be irregular ; 
 the distinction being between process voidable for irregularity, and 
 process void by lack of jurisdiction of the subject. 
 
 Nor was it the duty of the sheriff to notify the plaintiffs in the 
 execution, of the receipt of the judge's order. He was justified m 
 presuming that all had been rightly acted ; and could not with pro- 
 priety, or for any purpose of legal effect, inquire further. Some 
 
310 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 degree of diligence was due from the plaintiffs ; and an application 
 from them to the judge, would doubtless have procured a recis- 
 sion, or at least a modification of the order, by the annexation of a 
 condition preservative of their priority of lien. Clark v. Manns, i 
 Dowl. P. C. (Eng.) 656; Bagly's Prac. 29. Either of these 
 courses was within the power of the judge. The first would prob- 
 ably have been pursued, had he, on inquiry after summons, been 
 satisfied his order was irregular and improperly obtained. The 
 latter might have been effected by a direction to stay proceedings, 
 after levy 1*248] made, the levy to remain as security. But lack- 
 ing any motion of this sort, it certainly lies not in the mouths of the 
 plaintiffs to impeach the sheriff of misfeasance in the non-execu- 
 tion of the fieri facias. His hands, as we have seen, were tied. It 
 is not enough to aver the plaintiffs knew nothing of the order, and 
 could therefore take no steps for its abrogation or amendment. 
 The answer is, they might have known it, had they inquired of the 
 sheriff touching the non-execution of the writ, an inquiry as com- 
 monly made as it is natural. That they did not do this, is their 
 misfortune, if not their fault; the consequences of which are not 
 to be visited upon the officer, who is in no default. The truth is, 
 the inceptive error was committed by the judge; first, in acting 
 upon an ex parte hearing, and next, in granting an unconditional 
 order, without respect to the rights of the plaintiffs. The results 
 of this mistake, in this particular case, ought to warn the associate 
 judges of the commonwealth, who are not expected to be learned 
 in matters of law, against a similar interference with process, 
 without an opportunity first given to the antagonist party to be 
 heard. The English mode of procedure in such cases is clearly 
 pointed out in Bagly's Practice, at Chambers, cap. i, and being 
 well calculated to protect the rights and interests of all parties, 
 should be followed, here, as closely as possible. 
 
 The inquiry recurs, what was the effect of the judge's order? 
 Certainly to hang up the execution until after the return day. Its 
 functions were thus suspended until, by the lapse of time, its vi- 
 tality was extinguished. Beyond the return day, its operation and 
 vigor could only have been preserved by an actual levy ; or rather, 
 the effect of the levy being to place the goods in gremio legis, they 
 
court's power to control. 311 
 
 would have so remained for satisfaction of the plaintiffs' execu- 
 tion, unless released by their consent or misconduct, or by opera- 
 tion of law. But a levy under the first execution being wanting, 
 it had no hold on the goods after the return day. Consequently, 
 the second execution was the only effective one in the hands of the 
 sheriff at the time of the sale of the goods. The proceeds were 
 therefore properly applied in satisfaction of it. * * * [*249] 
 
 Judgment affirmed. 
 
 The court's power of control over its process as stated is recog- 
 nized everywhere (8 Bncy. PI. & Pr. 460), but the powers of a judge 
 at chambers is a more vexed question. Clearly without statute he has 
 no power in vacation to render judgments or to set them aside. Pisk 
 V. Thorp, 51 Neb. 1; 4 Bncy. PI. & Pr. 347. But power of control over 
 process of the court stands on different ground, for often delay till the 
 next term of court would work irreparable injury. Therefore, though 
 the judge at chambers probably has no power to quash the execution 
 (Freeman v. Dawson, 110 U. S. 264), it seems clear that he may stay 
 it till the question can be heard in court. See Freeman on Ex., § 32. 
 See also Lockhart v. McBlroy, 4 Ala. 572; Sanchez v. Carriaga, 31 Cal. 
 170. 
 
 This is a strong case in favor of the sheriff, as to the time within 
 which he must levy. See Albrecht v. Long, post, p. 333, and notes; 
 also 22 Am. & Eng. Ency. L. (1st Ed.) 542. 
 
312 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 THE OFFICER'S RIGHTS AND LIABILITIES IN EXECUTING 
 WRITS. 
 
 a. Their Right to Protection and Indemnity. 
 
 Under this head prepare again : Keniston v. Little, ante, 23 1 ; 
 Stanley v. Nutter, ante, 186; Abercrombie's Adm'r. v. Chandler, 
 ante, 184; and Commonivealth v. Magee, ante, 307. 
 
 HAMNER V. BALLANTYNB. 
 13 Utah 324, 44 Pac. Rep. 704, 57 Am. St. Rep. 736. (1896) 
 
 Sheriffs — Liability for Official Acts — What Writs Protect — Nature of 
 
 Protection. 
 
 Action by John Hamner against Thomas Ballant)me. Judg- 
 ment for plaintiff. Defendant appeals. Reversed. 
 
 /. W. Judd, for appellant. 
 
 Evans & Rogers, for appellees. 
 
 The Court by Zane, C. J. This is an appeal by the defendant 
 from a judgment against him, in favor of the plaintiff, for the 
 sum of $268.50 and for costs, and from an order refusing a motion 
 for a new trial. With other facts, the plaintiff alleged, in his 
 complaint, that he was the owner of $242.85, and that the defend- 
 ant carried it away, and unlawfully converted it to his own use, 
 to plaintiff's damage in the sum of $242.85, with interest. To 
 this complaint the defendant filed an answer, in which he justified 
 such taking and conversion under an execution, which he made a 
 part thereof. The execution recites a judgment against the 
 defendants, John' Hamner and others, and appears to be fair on 
 its face. The defendant stated further, in his answer, that, in 
 obedience to the execution, he demanded the amount due thereon, 
 and that plaintiff paid to him the $242.85 in satisfaction thereof, 
 and that he returned said sum, with the execution and his return 
 thereon, to the clerk's office. The execution and return thereon 
 established the above facts, with the additional one that the 
 $242.85, less the costs, were paid to Hamner's attorney. 
 
THE officer's RIGHTS AND LIABILITIES. SIS'- 
 
 On the trial of the cause the defendant offered the execution 
 [*j2p] with the return thereon in evidence, and the court having 
 sustained the plaintiff's objection to its admission, defendant 
 excepted, and assigns such refusal as error. This assignment of 
 error raises the question, was the execution admissible in evi- 
 dence, without the judgment upon which it issued? The writ 
 required the officer to demand of the defendants the sum men- 
 tioned in it, and, upon refusal to pay, to levy upon and sell enough 
 of their unexempted personal property to satisfy the same, and, if 
 enough could not be found, to levy upon and sell enough unex- 
 empted real property. In demanding and receiving the money 
 due on the execution, and crediting the same, the officer obeyed 
 the commands of the writ, and he was protected by the writ in so- 
 doing. An officer with an execution in his hands is not author- 
 ized to demand payment from a person not a party to it, or to 
 levy on the property of any other person. If he levies on prop- 
 erty in the possession of a person, not a party who claims a right 
 to it, he must produce the judgment with the execution under a 
 plea of justification; because possession is prima facie evidence 
 of ownership. The officer is apprised, by the possession and the 
 claim, that the person making it has the prima facie right accord- 
 ing to his claim. However, we do not wish to be understood as 
 holding that an officer would be justified in executing a writ 
 against a person named in it as a defendant who was not a party 
 to the judgment upon which it issued, or in executing a writ 
 issued on a void judgment, after learning that such person was 
 not a party to the judgment or that it was void or that there was 
 no judgment. With such knowledge, we are of the opinion that 
 the officer should not execute the writ. Grace v. Mitchell, 31 
 Wis. 533, II Am. Rep. 613; Sprague v. Birchard, i Wis. 457, 
 60 Am. Dec. 393; McDonald v. Wilkie, 13 111. 22, 54 Am. Dec. 
 423; Leachman v. Dougherty, 81 111. 325. There is a conflict in 
 the authorities, however, as to this [*JJo] rule, but we think it 
 sustained by authority and better reasoning. Freem. Ex'ns. (2d 
 Ed.) §102. But we cannot apply this rule to this case, because 
 knowledge that the plainti,ff was not a party to the judgment upon. 
 
■314 PROCESSES TO OBTAIN SATISFACTION OF JTJDGMENTS. 
 
 which the execution issued is not sufficiently shown by the evi- 
 dence in the record. Notice of any irregularity or fraud in 
 •obtaining the judgment, or in the judgment itself, that simply 
 renders it voidable, but not void, wrill not justify the officer in 
 refusing to execute the writ, or render its execution by him 
 wrongful, or make him liable for its execution. In that case, the 
 judgment would be effectual until set aside, and such action must 
 -be left to the party whose rights are invaded. 
 
 The plaintiff claims that the issue tried in the court below 
 between defendant and himself was simply a right to property; 
 that the officer was not proceeded against as a tort feasor. When 
 the proceeding is one in rem, as in the case of an action of re- 
 plevin, the better rule is that the officer, in justifying, must show 
 a valid judgment as the foundation of the action, although the 
 writ may be fair on its face, and he has no information that it 
 has been issued on a judgment void for want of jurisdiction of 
 the subject-matter or of the person, or without any judgment 
 upon which to base it. If an officer in good faith executes a writ, 
 fair on its face, the writ protects him, though there was "no judg- 
 ;ment upon which to base it. Such a writ can only be used as a 
 weapon of defence, and for protection, — not for the purpose of 
 attack for offensive purposes. An officer, who in good faith 
 seizes or sells property under an execution, may justify, in a suit 
 for damages against him in consequence of such seizure or sale, 
 without producing the judgment ; and he will be regarded as hav- 
 ing acted in good faith, when the writ was fair on its face, and he 
 was not advised that there was no judgment, or [*5Ji] that, if 
 tthere was, it was void. And it will make no difference whether 
 the suit is for damages on an implied contract or upon a tort. A 
 ministerial officer cannot be held personally liable in any proceed- 
 ing, civil or criminal, for any act done by him in executing a writ 
 fair on its face, unless he knows, or should have known, as a 
 reasonable man, that the judgment upon which it purported to 
 have been issued was void, or that there was no judgment. In 
 the trial of the title or right to property in the officer's hands under 
 .the writ, he must, however, produce the judgment, though the 
 writ is fair upon its face, and he has no knowledge that the judg- 
 
THE officer's RIGHTS AND LIABILITIES. 315 
 
 ment is void, or that there is none. Such a proceeding is against 
 the property, or to recover it, and not to subject the officer to 
 responsibility for his acts in obedience to the mandate of the 
 court. Beach v. Botsford, i Doug. (Mich.) 199, 40 Am. Dec. 45; 
 Gidday v. Witherspoon, 35 Mich. 368; Cobbey, Repl. §§ 806, 807; 
 Cooley, Torts (2d Ed.) 542 ; Leroy v. East Saginaw City Ry. Co., 
 18 Mich. 233, 100 Am. Dec. 162 ; Adams v. Hubbard, 30 Mich. 
 104. 
 
 The plaintiff alleged, in his complaint, that the defendant 
 took $242.85 of his money and unlawfully converted it to his own 
 use. The plaintiff was a party defendant to the execution under 
 which the officer, who is the defendant in this case, took the 
 money; and the writ purported to be on a judgment against the 
 plaintiff in this case, and was fair on its face; and the evidence 
 does not show that the defendant knew that the judgment was 
 void or that no judgment had been rendered against the plaintiff; 
 and this case was not instituted to recover the specific money 
 taken by the officer. It was brought to recover damages for the 
 unlawful conversion of the money by the officer to his own use. 
 If the plaintiff had waived the tort alleged, and sued for money 
 had and received by the officer to plaintiff's use, [*5J2] it would 
 not have been an action to try the title or right to the money 
 merely. The effect of a judgment against the officer in that case 
 would have made him personally responsible for acts performed, 
 in good faith, on an execution against a defendant to it; but, as 
 we have seen, the execution protected the officer for such acts, 
 tinder such circumstances. While the former distinctions between 
 civil actions in this state have been abolished, they will be regard- 
 ed still as founded upon contract or tort from the facts alleged 
 in the complaint. Actions in this state are classified with respect 
 to the facts alleged. From the facts alleged, this action must be 
 regarded as in trover. While in some cases the person whose 
 property has been unlawfully converted into mon^ or money's 
 worth may waive the tort, and base his action on an implied con- 
 tract for money had and received, the plaintiff based this one on 
 the wrongful conversion of his money by the defendant. The 
 action is not for the identical money which he alleges was con- 
 
316 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 verted, but he claims damages for the wrongful conversion of his 
 money. The execution, being fair on its face, justified the con- 
 version as the return shows it was made. The action could not 
 be regarded as one to try the right to the money taken that had 
 been paid to defendant's attorney before the suit was brought. 
 It was for damages resulting to plaintiff, as claimed, from the 
 wrongful and unlawful conversion of his own money by the 
 defendant. 
 
 In sustaining plaintiflF's objection to the execution offered in 
 evidence by the defendant, we are disposed to think that the court 
 below erred. The judgment and order appealed from are 
 reversed, and the court below is directed to grant a new trial. 
 Bartch, J., concurs. [*J5j]- 
 
 Miner, J. I concur, except that I am of the opinion that, ira 
 a case of trover, where the execution is fair and regular on its 
 face, and issued by a court having jurisdiction, the officer would 
 be protected by it, and cannot be held liable for its execution in 
 a proper manner, even if he knew of irregularities or defects in 
 the proceedings attending the issuing of the execution. See 
 Marks V. Sullivan, 9 Utah 12, 33 Pac. 224, and cases referred to. 
 See also Matthews v. Densmore, 109 U.S. 216, 3 Sup. Ct. 126. 
 
 BURTON V. WILKINSON. 
 18 Vermont 186, 46 Am. Dec. 145. (1846) 
 
 Service of Process by Special Deputy — At Night — Proof of Authority- 
 Demanding Admittance, of Whom — Right to Break Into Dwell- 
 ing or Barn — For Stranger's Concealed Goods. 
 
 Trespass quare clausum f regit by Albert S. and Oscar A. 
 Burton against Curtis Wilkinson and L. H. Nutting, alleging that 
 defendants, on Oct. 17th, 1842, broke open plaintiffs' warehouse 
 and took butter belonging to the plaintiffs. Defendants pleaded 
 in justification, that Wilkinson, as a specially authorized officer, 
 and Nutting, his servant, took the butter on an attachment against 
 one Cutter, having demanded the keys before breaking the door 
 open. Then plaintiffs rejoined that the butter belonged, not to Cut- 
 ter, but to one Houghton, for whom plaintiffs held. Defendants 
 rebutted that Houghton had sued them for the taking, and judg- 
 
THE officer's RIGHTS AND LIABILITIES. 317 
 
 ■ment had been rendered against him. To this plaintiffs demurred. 
 The court overruled the demurrer and plaintiffs excepted. Af- 
 firmed. 
 
 H. R. & I. J. Beardsley, for plaintiffs. 
 
 Smalley, Adams & Hoyt and Nutting & Hunt, for defend- 
 ants. 
 
 The Court by Williams, C. J. But two questions 
 have presented themselves to the consideration of the court in this 
 case. I. As to the power of a person, specially deputized to serve 
 a writ, in relation to the breaking of doors. 2. As to the claim set 
 up by the plaintiffs under the title of Houghton. 
 
 A person deputed to serve a writ, as was the defendant Wil- 
 kinson, has all the powers which may be exercised by a sheriff in 
 serving or executing any process, except that he is not to be recog- 
 nized or obeyed as a sheriff, or known officer, but must show his 
 authority, and make known his business, if required by the party 
 who is to obey the same. In this particular he represents a special 
 bailiff, rather than a known officer. To make an attachment, or to 
 levy an execution on goods, the sheriff cannot break open the outer 
 door of the debtor's dwelling house. It is otherwise, if the goods 
 of a stranger are secreted in the dwelling house. A barn, or out- 
 house, adjoining to and parcel of the house, or within the curtil- 
 age, may be broken open to make such levy ; but a request must 
 first be made for admittance. A barn in the field may be opened 
 without request. Penton v. Brown, i Keble, 698; Haggerty v. 
 Wilber, 16 Johns. 287. There is nothing to prevent a sheriff from 
 serving an execution in the night, as well as in the day time. Wil- 
 kinson [*jpo] was therefore justified in breaking into the ware- 
 house in question, to serve an attachment on the goods of any per- 
 son therein ; — but he m ast first demand admittance. 
 
 In this case it is stated, that he did demand admittance of the 
 persons who had the key; but it is objected, that the plea does not 
 state but that the persons who had the key, were wrongfully in 
 possession. We think this was not necessary. If he demanded 
 admittance of those who had the custody and care of the key, and 
 who could have let him in without compelling him to resort to 
 iorce, it was all that was necessary ; and he was not bound to in- 
 
318 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 quire how, or in what way, they became possessed of the same. A 
 
 demand of the plaintiifs for admittance could have been of no use, 
 
 as they could not have unlocked the door, while Bogue and 
 
 Walker had the key. If there had been any collusion between the 
 
 defendants and Bogue and Walker, which would have made the 
 
 defendants liable, it should have appeared in the replication. A 
 
 sheriff would have been justified in breaking open the warehouse 
 
 of the plaintiffs to do execution on the goods of Cutter, having 
 
 first demanded admittance of the person who had the key. * * * 
 
 The judgment of the county court is therefore affirmed. 
 
 The law as to forcing doors is accurately stated here. See Free- 
 man on Ex. § 256. The leading case is Seymayne's Case, 5 Coke 91. 
 
 SMITH V. OSGOOD. 
 46 New Hampshire 178. (1865) 
 
 Trustee Process — Officer's Right to Indemnity — Right to Abandon If 
 Not Idemnified — Rights of Junior Creditor Who Indemnifies — 
 Liability of Officer for Failure to Return Process — 
 When Proceeds of Sale May be Applied. 
 
 Trustee process by Smith against J. T. Osgood, principal 
 debtor, and N. G. Ordway as his trustee. Abel Proctor & Son 
 intervene as claimants. Case reserved for determination by the 
 whole court. Trustee discharged. 
 
 Ordway seized some hemlock bark on several attachments 
 against said Osgood, two in favor of Proctor & Son being the 
 latest. Then Page claimed the bark, and Ordway demanded in- 
 demnity from the attaching creditors, but P. & Son were the only 
 ones who gave it. Page then sued Ordway in trover for the value 
 of the bark, which suit P. & Son successfully defended, without 
 the aid of any of the other attaching creditors, all of whom knew 
 of it. All of the attachment suits were prosecuted to judgment, 
 executions thereon duly issued and delivered to Ordway, who then 
 sold the bark thereon for $403, which he had in his hands when 
 this action was brought to charge him as trustee of Osgood there- 
 for. 
 
 Flint and George, Foster &■ Sanborn, for plaintiff. 
 
 A. & F. A. Fowler, for trustee. 
 Morrison, Stanley & Clark, for claimants. 
 
THE officer's RIGHTS AND LIABILITIES. 319' 
 
 The Court by Sargent, J. Where an officer is requested to- 
 attach property on a writ, if the title is doubtful he may demand' 
 an indemnity of the creditor before attaching it, and if such indem- 
 nity is not given he is under no obligation to attach it. Perkins^ 
 V. Pitman, 34 N. H. 261 ; Bond v. Ward, 7 Mass. 123. So where 
 the officer is directed to arrest the body of a debtor, if he has- 
 doubts about the propriety of the arrest, he may demand a like in- 
 demnity, and unless he receive it he is not obliged to make the ar- 
 rest. Marsh v. Gold, 19 Mass. (2 Pick.) 284, 290. 
 
 The question here arises, whether, after the officer has at- 
 tached property on mesne process without any controversy about 
 the title at the time, and he is afterwards proceeding to sell the 
 same upon the writ, or upon the execution after judgment, and" 
 third persons then step in and claim the property and forbid the 
 officer to sell the same, it is the duty of the officer to sell the prop- 
 erty at his peril, or whether he may then demand of the creditor 
 an indemnity, and refuse to sell unless such indemnity is given. 
 
 In this case it seems that all the executions were placed in the- 
 officer's hands within thirty days from the rendition of judgment, 
 and if no indemnity had been claimed the property attached should 
 have been applied in the order of the attachments. If the contro- 
 versy as to the title had arisen in this case at the time of the at- 
 tachment, and an indemnity had been demanded, there is no doubt- 
 that for the benefit of such creditors as gave the required indem- 
 nity, the officer must proceed and make the attachments in their 
 order, and might decline to do anything for the others who did 
 not give the indemnity, and we think the same rule should be ap- 
 plied in this case. We assume in this case, though the case is not 
 quite explicit on that point, that the officer not only notified all the- 
 creditors, but that he made them understand fully the situation of 
 the case, and demanded of them in terms the indemnity, and that 
 they decided deliberately not to furnish the indemnity and risk the 
 consequences. The officer should do this business so that there 
 should be no room for misunderstanding or collusion. Page made 
 his claim on the bark and insisted upon it, and brought his suit 
 against the officer. These claimants gave the indemnity which 
 the officer demanded. The other creditors did not. It would' 
 
320 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 hardly be equitable now that the other creditors, who have stood 
 by and neither given any indemnity nor assisted in the defense of 
 the suit against the officer, should receive the whole benefit of the 
 claimants' industry and money in defending that suit, and of their 
 indemnifying bond, while the claimants themselves get nothing 
 for their trouble and expense, nor any part of their claim, [*i8o] 
 while those who incurred no liability and who did nothing, get the 
 whole. 
 
 We think, in this case, if no one had indemnified, the officer 
 might properly have refused to sell, and all the creditors would 
 have been estopped to sue the officer, so far at least as the property 
 •claimed by Page was concerned, and that, as it was, he was only 
 obliged to sell such property on the claimants' execution. No 
 question is here raised concerning the application of any surplus 
 after paying claimants' debt, for the case finds that the avails of 
 the whole bark are not sufficient to pay the first execution of these 
 -claimants. 
 
 But the plaintiflf claims that, because the officer did not make 
 the application upon the execution at the time, he cannot now do 
 so, but that the money belongs to Osgood, the principal defendant, 
 ..and can be held in this suit in the hands of the officer as trustee. 
 But we cannot so regard it. If the property in this case had been 
 delivered to a receipter, who had refused to deliver it on demand, 
 and, after execution was recovered, the officer had brought suit on 
 the receipt, and had after a long time recovered, and suppose he 
 had kept his execution till the termination of the suit, though long 
 after the return day of the execution, could he not be allowed to 
 apply the property on the execution ? It might have been the more 
 proper course for the officer in each case to return his execution 
 on the return day, making return of whatever he had done up to 
 that time, and take a new one on which to make a future return. 
 In this case the officer delayed from uncertainty as to which exe- 
 cution he should make the application upon. He should perhaps 
 have returned them with his doings, and asked directions from the 
 ■ court as to the application of the money. But this suit was soon 
 brought in which the officer's liability would be settled, and he has 
 Tvaited till now. We think he may now make the application, and 
 
THE officer's RIGHTS AND LIABILITIES. 321 
 
 that no one but the creditor can complain of the delay, who is the 
 
 claimant in this case. 
 
 Trustee discharged. 
 
 A constable sued for releasing goods for want of indemnity after 
 expressing satisfaction ■with the indemnity given, is liable. "If, as the 
 consiable said, property in the goods was claimed by another, he was 
 not bound to proceed unless suificient indemnity was given; but having 
 demanded and accepted indemnity, the situation of affairs is entirely al- 
 tered. He is compelled on his part to proceed to a sale of the goods, 
 and must look to his bond for indemnity." Corson v. Hunt, 14 Pa. St. 
 510, 53 Am. Dec. 368. 
 
 NELSON V. COOK. 
 17 Illinois 443. (1856) 
 
 Creditor's Liability for Officer's Tort — Contribution Between Tortfeas- 
 ors — Principal's Liability to Indemnity Agent, Reasons for and 
 Limitations of Rule — Effect of Effort to Sustain 
 Levy — Effect of Special Directions. 
 
 Assumpsit commenced by attachment by Isaac Cook, late 
 sheriff of Cook county, against John G. Nelson and others, to 
 recover damages paid by said Cook on judgment against him in 
 favor of the owners of property taken by Cook's deputy on execu- 
 tion in favor of said Nelson et al. on their judgment against A. E. 
 Miller and D. R. Clements. From judgment for plaintiff defend- 
 ants bring error. Reversed. 
 
 C. Beckwith, Williams and Woodbridge, for appellants. 
 
 Burton and Winston, for appellee. 
 
 The Court by Scates, C. J. The principle laid down in Mer- 
 ryweather v. Nixan, 8 Term i86, that there is no right of contribu- 
 tion as between tort-feasers, or trespassers, has been and still is, 
 recognized as unquestionable law. But this does not affect the 
 right of indemnity where a right of indemnity exists. 
 
 There has been some little diversity of opinion, in the proper 
 application of the rule of distinction, or exception to the general 
 rule, in Merryweather v. Nixan, in agreeing upon the facts and 
 circumstances, which raise the exception. I regard the following 
 distinctions, however, to be well settled and supported by author- 
 ity. Where a party is employed in his usual course of business, 
 as an auctioneer or warehouseman, to sell or deliver goods, by one 
 claiming to have right so to do, and the contrary is not known to 
 
322 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 the employee, he may have an action for an impHed promise of 
 indemnity, for the damages he may be compelled to pay to the true 
 owner, for the trespass or conversion committed by such sale or 
 delivery. Betts v. Gibbons, 2 Ad. & El. 57, 29 Eng. C. L. 37; 
 Adamson v. Jarvis, 4 Bingh. R. 66, 13 Eng. C. L. 403; Story on 
 Agency, § 339. 
 
 But where one is employed or directed to do or commit a 
 known crime, misdemeanor, trespass or wrong, and the employee 
 or agent knows it to be such, an express promise of indemnity is 
 void, being against the peace and policy of the law. Story on 
 Agency, § 329 ; Broom's Leg. Max. 328, 329 ; Holman v. Johnson, 
 1 Cowp. (Eng.) 341 ; Coventry v. Barton, 17 John. (N. Y.) 142. 
 
 Yet, where the question of title to the property is one of doubtj 
 controversy or uncertainty, or the act to be done is not an apparent 
 wrong, and the person or agent employed or directed to do the act, 
 does not know that it is a wrong or trespass ; in such case he may 
 sue and recover indemnity from his employer, upon an implied 
 assumption to save him harmless for the act. See authorities last 
 above, and note to Farebrother v. Ansley, i Campb. 343 ; Gower 
 V. Emery, 18 Me. 79, 83. 
 
 This relation, however, of principal and agent, or employee, 
 is not raised by the simple delivery of a writ of capias, attachment, 
 -fieri facias and the like, to the ofHcer, or his deputy. There is no 
 implication of indemnity for their trespasses and wrongs in the 
 execution, or attempt to execute process put into their hands, with- 
 out any specific direction to do particular acts, or take particular 
 goods under it. This is illustrated as between the sheriff and 
 his deputy, in the case of Farebrother v. Ansley, i Campb. 343; 
 and in relation to the liability of plaintiffs in process to the sheriff, 
 by Wilson v. Milner, 2 Campb. 452; England v. Clark, 5 111. (4 
 Scam.) 486; Coventry v. Barton, 17 {"^450] John. 142; Averill v. 
 Williams, i Denio (N. Y.) 502; Humphreys v. Pratt, 2 Dow. & 
 Clark (Eng.) 288, 5 Bligh N. S. 154; referred to in 6 M. & W. 
 Ex. R. note 387 ; Marshall v. Hosmer, 4 Mass. 60 ; Bond v. Ward, 
 7 Mass. 123 ; Avery v. Halsey, 14 Pick. (Mass.) 174; Filler v. Fos- 
 sard, 7 Pa. St. 540; Saunders v. Harris, 4 Humph. (Tenn.) 72. 
 The facts in Gower v. Emery, 18 Me. 79, show a special direc- 
 
THE officer's RIGHTS AND LIABILITIES. 323 
 
 tion, or will justify its interference, and what the court say must 
 be understood as upon the case before them. 
 
 Under these well settled principles, the defendant is not en- 
 titled to recover, upon an implied indemnity, nor without an ex- 
 press promise, or particular directions about the levy. Proof that 
 plaintiffs endeavored to sustain the attachment upon the levy, is 
 wholly insuiBcient for this purpose, and none other appears. 
 Again, a recovery in trespass for taking, or in trover for convert- 
 ing chattels, followed by satisfaction, vests the property in the de- 
 fendant: "Solutio pretii emptionis loco habetur." Adams v. 
 Broughton, 2 Strange 1078 ; Cooper v. Shepherd, 3 Mann. G. & 
 S. 266, 54 Eng. C. L. 265. 
 
 Thus treating the sheriff as agent, in whom the property was 
 vested by the recovery, for the benefit of the plaintiffs, his prin- 
 cipals, he may forfeit his title to repayment of his advances and 
 disbursement, by his own gross negligence, fraud or misconduct, 
 and be excluded from all remedy against his principal. Story on 
 Agency, § 348. 
 
 The defendant misapplied the property, and converted it to 
 his own use by a sale and payment to another, of the proceeds. 
 
 Judgment reversed and cause remanded. 
 
 Judgment reversed. 
 
 If the judgment creditor expressly directed the levy on the specific 
 property, which did not belong to the judgment debtor, he is liable to 
 the owner in trover either jointly with the officer or alone. Hale v. 
 Ames, 2 T. B. Mon. (Ky.) 143, and note to same case in 15 Am. Dec. 150. 
 Walker v. Wonderlick, 33 Neb. 504, 50 N. W. 445. 
 
 LAMMON V. FEUSIER. 
 Ill United States 17. (1883) 
 
 Official Bond Construed — What Acts Are Colore Officii — Decisions Re- 
 viewed — Conflict of Jurisdiction, Property in Custodia Legis. 
 
 The original action was brought in the circuit court of the 
 United States for the district of Nevada, by Henry Feusier, a citi- 
 zen of California, against George I. Lammon and three other 
 persons, citizens of Nevada, upon a bond given by Lammon, the 
 marshal of the United States for that district, as principal, and by 
 the other defendants as his sureties, and conditioned that Lam- 
 
324 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 mon, "by himself and by his deputies, shall faithfully perform all 
 the duties of the said office of marshal." {*i8] It was alleged in 
 the declaration and found by the court (trial by jury having been 
 duly waived) that Lammon, while marshal, and while the bond 
 was in force, having in his hands a writ of attachment on mesne 
 process against the property of one E. D. Feusier, levied it upon 
 the goods of the plaintiff, a stranger to the writ. On the question 
 of law, whether the taking of the plaintiff's property upon a writ 
 of attachment against another person constituted a breach of official 
 duty on Lammon's part for which his sureties were liable, the cir- 
 cuit judge and the district judge were opposed in opinion, and so 
 certified. The plaintiff having died pending the suit, final judg- 
 ment was rendered for his executors, in accordance with the opin- 
 ion of the circuit judge and the defendants sued out this writ of 
 error. 
 
 C. J. Hilly er, for appellant. 
 M. N. Stone, for appellee. 
 
 The Court by Gray, J. The bond sued on was given under 
 § 783 of the Revised Statutes, which requires every marshal, be- 
 fore entering on the duties of his office, to give bonds with sure- 
 ties for the faithful performance of those duties by himself and his 
 deputies ; and this action was brought under § 784, which author- 
 izes any person, injured by a breach of the condition of the bond, 
 to sue thereon in his own name and for his sole use. 
 
 The question presented by the record is whether the taking 
 by the marshal upon a writ of attachment on mesne process 
 against one person, of the goods of another, is a breach of the con- . 
 dition of his official bond, for which his sureties are liable. 
 
 The marshal, in serving a writ of attachment on mesne pro- 
 cess, which directs him to take the property of a particular person, 
 acts officially. His official duty is to take the property of that per- 
 son, and of that person only ; and to take only such property of his 
 as is subject to be attached, and not property exempt by law from 
 attachment. A neglect to take the attachable property of that per- 
 son, and a taking, upon the writ, [*I9] of the property of another 
 person, or of property exempt from attachment, are equal breaches 
 of his official duty. The taking of the attachable property of the 
 
THE officer's RIGHTS AND LIABILITIES. 325 
 
 person named in the writ is rightful ; the taking of the property of 
 another person is ^yrongful ; but each being done by the marshal, 
 in executing the writ in his hands, is an attempt to perform his 
 official duty, and is an official act. 
 
 A person other than the defendant named in the writ, whose 
 property is wrongfully taken, may indeed sue the marshal, like 
 any other wrongdoer, in an action of trespass, to recover damages 
 for the wrongful taking; and neither the official character of the 
 marshal, nor the writ of attachment, affords him any defence to 
 such an action. Day v. Gallup, 69 U. S. (2 Wall.) 97; Buck v. 
 Colbath, 70 U. S. (3 Wall.) 334. 
 
 But the remedy of a person, whose property is wrongfully 
 taken by the marshal in officially executing his writ, is not limited 
 to an action against him personally. His official bond is not made 
 to the person in whose behalf the writ is issued, nor to any other 
 individual, but to the government, for the indemnity of all persons 
 injured by the official misconduct of himself or his deputies ; and 
 his bond may be put in suit by and for the benefit of any such 
 person. 
 
 When a marshal, upon a writ of attachment on mesne process, 
 takes property of a person not named in the writ, the property is 
 in his official custody, and under the control of the court whose 
 officer he is, and whose writ he is executing; and, according to the 
 decisions of this court, the rightful owner cannot maintain an 
 action of replevin against him, nor recover the property specific- 
 ally in any way, except in the court from which the writ was 
 issued. Freeman v. Howe, 65 U. S. (24 How.), 450; Krippen- 
 dorf V. Hyde, no U. S. 276. The principle upon which those 
 decisions are founded is, as declared by Mr. Justice Miller in Buck 
 V. Colbath, above cited, "that whenever property has been seized 
 by an officer of the court, by virtue of its process, the property is to 
 be considered as in the custody of the court, and under its control 
 for the time being ; and that no other court has a right to interfere 
 with that possession, unless it be some court which may have a 
 direct supervisory control over [*26\ the court whose process has 
 first taken possession, or some superior jurisdiction in the prem- 
 ises." 3 Wall. 341. Because the law had been so settled by this 
 court, the plaintiff in this case failed to maintain replevin in the 
 
326 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 courts of the state of Nevada against the marshal, for the very 
 taking which is the ground of the present action. Feusier v. Lam- 
 mon, 6 Nev., 209. 
 
 For these reasons the court is of opinion that the taking of 
 goods, upon a writ of attachment, into the custody of the marshal, 
 as the officer of the court that issues the writ, is, whether the goods 
 are the property of the defendant in the writ or of any other per- 
 son, an official act, and therefore, if wrongful, a breach of the bond 
 given by the marshal for the faithful performance of the duties of 
 his office. 
 
 Under the analagous question, whether the sureties upon the 
 official bond of a sheriff, a coroner, or a constable are responsible 
 for his taking upon a writ, directing him to take the property of 
 one person, the property of another, there has been some differ- 
 ence of opinion in the courts of the several states. 
 
 The view that the sureties are not liable in such a case has 
 been maintained by decisions in the supreme courts of New York, 
 New Jersey, North Carolina and Wisconsin, and perhaps receives 
 support from decisions in Alabama, Mississippi and Indiana. Ex. 
 parte Reed, 4 fiill, (N. Y.) 572; People v. Schuyler, 5 Barb. Sup. 
 (N. Y.) 166; State v. Conover, 28 N. J. L. (4 Dutcher), 224; 
 State V. Long, 8 Iredell (N. Car.) 415 ; State v. Brown, 11 Iredell, 
 141 ; Gerber v. Ackley, 32 Wis. 233, 37 Wis. 43 ; Governor v. 
 Hancock, 2 Ala. 728 ; McElhaney v. Gilleland, 30 Ala. 183 ; Brown 
 V. Moseley, 11 Sm. & Marsh. (Miss.) 354; Jenkins v. Lemonds, 
 29 Ind. 294; Carey v. State, 34 Ind. 105. 
 
 But in People v. Schuyler, 4 N. Y. 173, the judgment in 5 
 Barb. 166 was reversed, and the case Ex parte Reed, 4 Hill, over- 
 ruled by a majority of the New York court of appeals, with the 
 concurrence of Chief Justice Bronson, who had taken part in de- 
 ciding Reed's case. The final decision in People v. Schuyler has 
 been since treated by the court of appeals as settling the law upon 
 this point. Mayor, etc., of New [*2i] York v. Sibberns, 3 Abbott 
 App. 266, 7 Daly, 436; Gumming v. Brown, 43 N. Y. 514; People 
 V. Lucas, 93 N. Y. 585. And the liability of the sureties in such 
 cases has been affirmed by a great preponderance of authority, 
 including decisions in the highest courts of Pennsylvania, Maine, 
 Massachusetts, Ohio, Virginia, Kentucky, Missouri, Iowa, Ne- 
 
THE officer's RIGHTS AND LIABILITIES. 327 
 
 braska, Texas and California, and in the supreme court of the 
 District of Columbia. Cormack v. Commonwealth, 5 Binn. (Pa.) 
 184; Brunott v. M'Kee, 6 W. & S. (Pa.) 513; Archer v. Noble, 
 3 Me. 418; Harris v. Hanson, 11 Me. 241; Greenfield v. Wil- 
 son, 79 Mass. (13 Gray) 384; Tracy v. Goodwin, 87 Mass. (5 
 Allen,) 409; State v. Jennings, 4 Ohio St. 418; Sangster v. Com- 
 monwealth, 17 Grattan, (Va.) 124; Commonwealth v. Stockton, 
 5 T. B. Monroe, (Ky.) 192; Jewell v. Mills, 3 Bush. (Ky.) 62 
 State V. Moore, 19 Mo. 366; State Vj Fitspatrick, 64 Mo. 185 
 Charles v. Haskins, 11 Iowa, 329; Turner v. Killian, 12 Neb. 580 
 Holliman v. Carroll, 27 Texas, 23; Fo» F^/i v. Littler, 14 Cal. 
 194; United States v. J/me, 3 MacArthur, (D. C.) 27. 
 
 In S'to^^ V. Jennings, above cited, Chief Justice Thurman 
 said : "The authorities seem to us quite conclusive, that a seizure 
 of the goods of A, under color of process against B, is official 
 misconduct in the officer making the seizure ; and it is a breach of 
 the condition of his official bond, where that is that he will faith- 
 full}' perform the duties of his office. The reason for this is that 
 the trespass is not the act of a mere individual, but is perpetrated 
 colore oMcii. If an officer, under color of a H. fa. seizes property 
 of the debtor that is exempt from execution, no one, I imagine, 
 would deny that he had thereby broken the condition of his bond. 
 Why should the law be different if, under color of the same pro- 
 cess, he take the goods of a third person? If the exemption of 
 the goods from the execution in the one case makes their seizure 
 official misconduct, why should it not have the like effect in the 
 other? True, it may sometimes be more difficult to ascertain the 
 ownership of the goods, than to know whether a particular piece of 
 property is exempt from execution; but this is not always the 
 case, and if it were, it would not justify us in restricting to liti- 
 gants the indemnity afforded by the official bond, thus leaving the 
 rest of the community [*22] with no other indemnity against 
 official misconduct than the responsibility of the officer might fur- 
 nish." 4 Ohio St. 423. 
 
 So in Lowell v. Parker, 10 Met. 309, 313, a constable, author- 
 ized by statute to serve only writs of attachment in which the 
 damages were laid at no more than $70, took property upon a writ 
 in which the damages were laid at a greater sum. In an action 
 
328 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 upon his official bond, it was argued for the sureties that they were 
 no more answerable than if he had acted without any writ. But 
 Chief Justice Shaw, in delivering the opinion of the supreme 
 judicial court of Massachusetts, overruling the objection, and 
 giving judgment for the plaintiff, said: "He was an officer, had 
 authority to attach goods on mesne process on a suitable writ, pro- 
 fessed to have such process, and thereupon took the plaintiff's 
 goods ; that is, the goods of Bean, for whose use and benefit this 
 action is brought, and who, therefore, may be called the plaintiff. 
 He therefore took the goods colore ofUcii, and though he had no 
 sufficient warrant for taking them, yet he is responsible to third 
 persons, because such taking was a breach of his official duty." 
 
 Upon the weight of authority, therefore, as well as upon prin- 
 ciple, the judgment of the circuit court in the case at bar is right, 
 and must be 
 
 Affirmed. 
 
 b. The Liability of Officer and Bond for Malfeasance, 
 Misfeasance, and Nonfeasance. 
 
 Under this head review : Michels v. Stork, ante, 83 ; Bacon v. 
 Cropsey, ante, 181; Abercrombie v. Chandler, ante, 184; Stanley 
 V. Nutter, ante, 186 ; Green v. Burke, ante, 205 ; Steele v. Thomp- 
 son, ante, 218; State v. Herod, ante, 221 ; Morgan v. People, ante, 
 221 ; Daugherty v. Moon, ante, 222; Clarkson v. White, ante, 226; 
 Keniston v. Little, ante, 231 ; Bostwick v. Benedict, ante, 271 ; Peo- 
 ple V. Dunning, ante, 286 ; Milburn v. State, ante, 289 ; Gordon v. 
 Camp, ante, 296 ; Commonwealth v. Magee, ante, 307 ; and all the 
 cases under the last preceding topic. 
 
 KNOX V. WEBSTER. 
 18 Wisconsin 406, 86 Am. Dec- 779. (1864) 
 
 Executions — Modern American Rule as to When Lien Attaches — First 
 Levy under Second Writ — Sale under Both — Liability of 
 Officer — Who Entitled to Proceeds in Court — Right 
 to Priority by Discovering Property. 
 
 Action by Thomas M. Knox against Webster as sheriff of 
 Milwaukee county, for failure to levy plaintiff's execution before 
 another subsequently placed in his hands. From judgment for 
 
THE officer's RIGHTS AND LIABILITIES. 329» 
 
 plaintiiif defendant appeals. AfSrmed. The main defense was 
 that the other execution creditor found and showed the sheriff the 
 property on which to levy and was entitled to priority for his dili- 
 gence. 
 
 Butler & Cottrill, for appellant. 
 
 Knox, in person. 
 
 The Court by Dixon, C.J. "Personal property shall be bound' 
 from the time of its seizure on execution." R. S., ch. 134, § 18. 
 Before seizure there is no lien — nothing by which the rights of 
 different execution creditors, whether senior or junior, can attach.- 
 The lien takes effect from the date of the levy and by virtue there- 
 of, and of course is confined to the execution levied, and can have- 
 relation to no other. Such lien is prior and superior to that of 
 every execution subsequently levied, and consequently not liable 
 to be defeated by such subsequent levy, though made upon a senior- 
 execution. This point, if not decided, was strongly intimated in 
 Russell V. Lawton, 14 Wis. 209. It follows that the court was 
 right in rejecting the record and proceedings upon the motion to- 
 have the money made on Cooper's execution applied on that of the 
 plaintiff. The court had no power to make such application, and 
 was bound to deny the motion. The plaintiff having wholly mis- 
 taken his remedy, the decision upon the motion was no bar to this 
 suit, and that was the only purpose for which the record and pro- 
 ceedings were offered. 
 
 As to the duty of the sheriff in making the levy, we are [*^-ro] 
 satisfied he should have levied the senior execution first. The de- 
 cision in Russell v. Lawton proceeded on this supposition in all 
 cases where the several executions are in the hands of the same 
 officer. The statute, § 15, requires the sheriff, under the sanction' 
 of his official oath, to indorse upon every execution the year, 
 month, day and hour of the day when he received the same. No 
 reason is perceived for this, unless it be to furnish unequivocal and 
 satisfactory evidence upon which to determine disputed questions 
 of priority and preference among different execution creditors of" 
 the same debtor, and to enable the sheriff to guard against mis- 
 takes. He is a public officer, of whom the law requires the strict- 
 est impartiality between those who are obliged to have his services,. 
 
330 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 and this impartiality cannot be enforced except upon the rule that 
 he must, at his peril, levy and satisfy executions according to their 
 seniority in his hands. Once allow it to be a race of diligence be- 
 tween the different creditors in finding and pointing out the prop- 
 erty of the debtor, and what a door to partiality, fraud and strife 
 would be opened ! The sheriff might neglect inquiry, or be will- 
 fully ignorant, for the sake of favoring one or oppressing another 
 creditor, and the whole controversy would be thrown upon the un- 
 certain testimony of interested and suspicious witnesses. We do 
 not doubt, therefore, that it was the intention of the legislature, 
 as it is the course of reason, that executions should be levied ac- 
 cording to seniority, and that the sheriff in this case was not justi- 
 fied in levying the junior execution first because the creditor in 
 that execution had been more successful than himself in finding 
 the property of the execution debtor. * * * [*/^ii'] * * * 
 
 Judgment affirmed. . 
 
 A junior creditor, learning that the sheriff had no special orders to 
 levy but only to summon a garnishee on the senior fi. fa., ordered him 
 to levy his fi. fa. on certain corn. Sheriff levied both writs at same 
 time. The senior writ held entitled to priority, because it is the sher- 
 iff's duty to levy on any property without special orders. Stuarts v. 
 Reynolds, 4 Harrington (Del.) 112. See also Tomllnson v. Rows, 
 Lator's Sup. to Hill & Denio (N. Y.) 410. 
 
 RUSSELL V. LAWTON. 
 14 Wisconsin 202, 80 Am. Dec. 769. (1861) 
 
 Same — Levy and Payment on Last Writ — How Far Sheriff and Deputy 
 One Person — Notice to Deputy, Notice to Sheriff. 
 
 Action against sheriff. From judgment for plaintiff defend- 
 ant appeals. Reversed. 
 
 Mat. H. Carpenter, for appellant. 
 
 /. H. Knowlton and Rockwell & Converse, for appellees. 
 
 The Court by Cole, /. * * * On the 9th day of February, 
 1859, the appellant as sheriff of Rock county, had delivered to him 
 an execution in favor of the Bank of Beloit against the Racine and 
 Mississippi Railroad Company, and by direction of the judgment 
 creditors, levied the same upon eleven hundred and ten dollars 
 ■coin, the money of the railroad company, and paid it over as 
 money made upon the execution. On the preceding 4th day of 
 
THE officer's RIGHTS AND LIABILITIES. 331 
 
 February, an execution in favor of the respondent and against the 
 same defendants was dehvered to Sydney Wright, a deputy of the 
 appellant, which was returned unsatisfied for the reason that the 
 officer could find no property upon which to levy. The respond- 
 ent has brought this action to recover the amount of the execution 
 delivered to Wright, insisting that because it was placed in the 
 hands of the deputy before the junior execution was delivered to 
 the sheriff, it should first be satisfied, and that the sheriff was 
 guilty of misconduct in not thus applying the money that came to 
 bis hands, instead of paying it over to the bank. At the same time 
 it is conceded that the sheriff acted in perfect good faith in the 
 matter, and that when he levied upon and paid over the money to 
 .the bank, he had no notice whatever that his deputy held any exe- 
 cution against the same debtor. In view of these facts, upon what 
 principle is it sought to charge the appellant in this action ? It is 
 this. A delivery of an execution [*2oy] to a deputy sheriff is said 
 in legal effect to be a delivery to the sheriff himself, since, in con- 
 templation of law, all the deputies of the sheriff are but one officer, 
 being all servants of the same master, and that, therefore, the sher- 
 iff must be held chargeable with constructive notice of the prior 
 ■execution in the hands of his deputy. And upon this fiction of 
 the law the whole case hinges. 
 
 It is undoubtedly true that for many purposes a sheriff and 
 "his deputies are regarded as one officer, in the sense that an official 
 act of the deputy is deemed the act of the sheriff, and the sheriff 
 is held responsible for such act as his own, though he may have 
 had no personal knowledge of the matter, and been individually 
 guilty of no wrong. All processes are directed to the sheriff as 
 •such, who is required to do the thing therein commanded to be 
 ■done ; and the sheriff is responsible to the world for all breaches 
 -of duty or official misconduct on the part of any of his deputies. 
 For this reason an action for a breach of duty of the office of 
 •sheriff must be brought against the high sheriff, though the breach 
 was by the default of the under sheriff. Cameron v. Reynolds, 
 I Cowper (Eng.) 403. In this sense the sheriff and his deputies 
 •may be said to constitute one officer. But still the deputies of a 
 •sheriff, in relation to each other, must often be considered as sev- 
 
332 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 eral officers, with distinct rights, and acting with distinct HabiHties, 
 Odiorne v. Colley, 2 N. H. 66; Vinton v. Bradford, 13 Mass. 114;. 
 Thompson v. Marsh, 14 Id., 269; Bagley v. White, 21 Mass. (4 
 Pick.) 395. * * * [*2o8] * * * Take a case suggested on the 
 argument, and which will occur to any one reflecting on the sub- 
 ject. An execution against A is put into the hands of a deputy^ 
 who knows of no property belonging to A to satisfy the same. 
 Another deputy has information of property possessed by A suffi- 
 cient to satisfy the execution, but has no knowledge that an exe- 
 cution is out against him. The sheriff has no knowledge of any 
 execution against A, or of any property belonging to him. Under 
 these circumstances, is the sheriff to be charged with constructive 
 notice of the execution in the hands of one deputy, and of the in- 
 formation posfjessed by the other in respect to property belonging 
 to the debtor, and thus held liable for a breach of duty in not mak- 
 ing the money on an execution which he never saw ? To contend 
 for such a proposition would seem little else than the most glaring 
 absurdity; and yet we see no escape from such a result, if the 
 maxim that the sheriff and his deputies are to be regarded as one 
 person, is to be accepted without limitation. * * * [*^jo] 
 
 It follows from these views, that the judgment of the circuit 
 court must be reversed, and a new trial ordered. 
 
 Reversed. 
 Compare Ferguson v. Williams, 3 B. Mon. (Ky.) 302. 
 
 BOUCHER y. WISEMAN. 
 Croke Ellz. 440. (Miohaelmus term, 37 & 38 Bliz.; A. D. 1596) 
 
 Decided in the Common Bench before Anderson, C.J., Beaumond,. 
 Walmsley. and Owen, JJ. 
 
 Action upon the case against the defendant, late sheriff of 
 Essex. Whereas the plaintiff had recovered against Pynder 
 100/., and had a iieri facias; that the defendant by virtue thereof 
 levied 28/., and had not returned the writ nor paid money to the 
 plaintiff. Defendant pleaded not guilty. And now upon evidence 
 to the jury it was proved that the writ was delivered to Cowell, 
 the defendant's under-sheriff, 9 Nov., 34 Eliz., and the same day 
 he made execution. And he proved, that the same day a writ of 
 
THE officer's RIGHTS AND LIABILITIES. 333 
 
 discharge was delivered to him, dated 6 Nov., 34 Eliz. But be- 
 cause he did not prove that he had notice of this writ of discharge 
 before the execution served, the court held clearly that he was 
 yet sheriff, and chargeable to the plaintiff's action. 
 
 The defendant also showed the indenture whereby he made 
 Co well his under-sheriff; wherein was an exception, that he should 
 not meddle with the execution of any writ above 4.0I. ; so as to 
 that he was not his under-sheriff, but he did itde son tort demesne, 
 and the defendant is not chargeable therewith. But all the 
 COURT held it to be a void exception : for when he made him his 
 under-sheriff, therein was included that he should execute all 
 writs ; and therefore the exception is repugnant and void. 
 
 Thirdly, it was alleged, that this was not a due execution; 
 for Pynder had made a sale of his goods before, &c., and shewed 
 the deed dated the same day of the writ of execution. Et per 
 ToTAM Curiam, although the gift were bona fide, yet the execu- 
 tion might be taken of those goods. For by the suing forth the 
 «xecution, all the defendant's goods were liable; so as no gift of 
 the said goods, the day of the date of the writ or afterwards, can 
 ■stop the execution. Wherefore, they resolved the jury accord- 
 ingly, without inquiring of the fraud, and they found for the 
 plaintiff. Vide 4 Hen. 6, pi. 7; 17 Ass. pi. 2; Eliz. Dyer 219. 
 
 ALBRECHT v. LONG. 
 25 Minnesota 163. (1878) 
 
 -Same — Under Modern American Rule — First Levy under Last Writ — 
 
 Sale under All — Proceeds Applied on First — Liability of Officer — 
 
 Review of Statutes Fixing Time When Lien Attaches — Purpose 
 
 of Statutes — How Far Sheriff and Deputy are One Person 
 
 — When Sheriff Liable for Failure to Serve First. 
 
 Action by Ernest Albrecht et al. against Seth W. Long et al. 
 •on official bond. From judgment for defendants plaintiffs appeal. 
 Reversed. 
 
 Lewis Brownell, for plaintiffs. 
 
 B. S. Lewis, for defendants. 
 
 The Court by GilMlan, C.J. The defendant Long was sheriff 
 ■of the county of Waseca, and Stevenson was his deputy. Execu- 
 tions issued against the property of Sherwins were delivered as 
 
334 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 follows: One in favor of Charles Shedd, to the sheriff himself, 
 at lo 130 o'clock p. m. of March 19, 1877 ; one in favor of Chancy 
 Hardin et al., and another in favor of J. S. Ricker et al., to the 
 sheriff in person, at 2 o'clock a. m. of March 20; and one in favor 
 of these plaintiffs, to the deputy, at 6 o'clock a. m. of the same day. 
 The deputy levied this last execution at half-past 6 a. m. of the 
 same day, and took possession of the property. About half an 
 hour thereafter, the sheriff levied the three executions delivered 
 to him in person, upon the same property, and, upon his request, 
 the deputy delivered to him the plaintiffs' execution, and the pos- 
 session of the property. The sheriff advertised the property for 
 sale under several executions, not naming either of them, and sold 
 the property, and applied the proceeds, after deducting his fees, 
 to the payijient in full of the Shedd execution, and the remainder 
 upon the execution of Hardin et al., and returned the plaintiffs' 
 wholly unsatisfied, whereupon plaintiffs bring suit against the 
 sheriff and the sureties in his official bond. 
 
 The question presented is, whether the levy of an execution 
 gives the execution creditor a lien upon the property, which en- 
 titles him to priority over other executions in the hands of the 
 same officer against the same debtor, delivered to the officer before, 
 but not levied till after, his? For these executions are all to be 
 taken as delivered to the sheriff. The deputy is not an officer hav- 
 ing a separate official existence from that of the sheriff. He is an 
 officer of the sheriff's, whose powers and duties, so far as they 
 affect the public, it is true, are defined by law. But he holds the 
 office at the pleasure of the sheriff, is appointed and removable by 
 him, and civilly responsible to him, and not to the parties whose 
 writs come into his hands. He must act in the name of the sher- 
 iff, and not in his own name. All his acts are, in law, the acts of 
 the sheriff; and the responsibility, civilly, for such acts done 
 [*777] within his authority, is that of the sheriff. Our statutes 
 do not, as do the statutes of some of the states, alter in any way 
 the status of the deputy. 
 
 It is the duty of the sheriff, upon a writ coming into his 
 hands, to use due diligence in the execution of it. It attaches to 
 the writs as they come into his hands, and it follows that it is his 
 
THE officer's RIGHTS AND LIABILITIES. 33& 
 
 duty to execute first those which are first delivered to him. Upon 
 several executions in favor of different creditors against the same 
 debtor, it is his duty to the creditor in the first delivered, to execute 
 that first ; and to the creditor in the second, to execute that second ; 
 and so through them all. This is the duty he owes to the several 
 creditors. But the rights of the creditors, as against each other, 
 are not necessarily controlled by it. 
 
 At the common law, an execution bound the goods of the 
 debtor from the time of the teste, even though they were subse- 
 quently transferred to a bona Me purchaser. The statute 29 
 Charles II., c. 3, § 16, provided that execution "shall bind the 
 property of the goods against which such writ of execution is sued 
 out, but from the time that such writ shall be delivered to the 
 sheriff, under-sheriff or coroner, to be executed." Under the 
 common-law rule, the execution operated as a lien in favor of the 
 creditor for the satisfaction of his debt, from the time of the teste, 
 and, under the statute, it operated as such lien from the time of 
 its delivery to be executed. And the latter would continue to be 
 the rule, were it not for the provisions of the statute of this state. 
 Gen. St. c. 66, § 269, enacts that "until a levy, property not subject 
 to the lien of the judgment is not affected by the execution." So 
 that the creditor acquires a lien on the property, by virtue of his 
 execution, only from the levy. The property is not affected by 
 the teste, nor the delivery to the sheriff. The levy fixes the rights 
 of the creditor as to the specific property. It is argued that the 
 statute 29 Charles II., and the General Statutes were passed only 
 for the protection of bona tide purchasers, and therefore do not 
 affect the rights of [*i'j^2'\ execution creditors as against each 
 other. If this were so, their rights would be controlled by the 
 common-law rule, that the execution binds the goods from its 
 teste, and the execution last delivered and levied might take pre- 
 cedence of all the others, because of the priority in its teste. We 
 do not think the statute was intended to operate only as between 
 the execution creditor and a bona fide purchaser, as claimed, but 
 it was intended to define absolutely, as its language indicates, the 
 rights of the creditors as to the specific property, and as between 
 him and all others. 
 
536 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 The execution first levied, then, has the first lien on the prop- 
 erty, though there may be others in the hands of the sheriff, which 
 were delivered to him before the one levied. Russell v. Lawton, 
 14 Wis. 202; Knox V. Webster, 18 Wis. 406. The creditors in 
 executions afterwards levied cannot claim to be paid out of the 
 property, until the one first levied is satisfied.^ This would be so 
 in a contest between the creditors, and it must be so in a dispute 
 between the creditor having the first lien by levy, and the sheriff. 
 The remedy of the creditor in the execution first delivered is 
 against the sheriff. If the latter, through negligence, omit to levy 
 the first execution till a second has been levied, and loss thereby 
 accrues to the first execution creditor, an action will undoubtedly 
 lie. 
 
 It does not follow, however, from the rule of law that a sheriff 
 and his deputies are regarded as one officer, that where several 
 executions against the same debtor are placed, some in the hands 
 >of the sheriff in person, and others in the hands of his deputy, and 
 in consequence thereof, and without actual negligence of the sher- 
 iff or deputy holding the execution first delivered, a subsequent 
 .execution is first levied, that the sheriff is liable to the creditor in 
 the first execution. When it comes to a question of diligence, the 
 law recognizes the fact that the sheriff and his deputy are different 
 persons, though in theory one officer. And as it does not require 
 impossibilities, it regards the question of diligence in view of 
 £*J7j] that fact, and of what may naturally happen in conse- 
 quence of it. Russell V. Lawton, 14 Wis. 202; Whitney v. But- 
 
 .teriield, 13 Cal. 335. 
 
 Order reversed, and new trial ordered. 
 
 Same case, 27 Minnesota 81, 6 N. W. 420. (1880) 
 
 "Same — Agreements between Sheriff and Deputy — Who Bound — Breach 
 
 by Deputy. 
 
 After the next trial defendants appealed from judgment for 
 ■plaintiffs, appearing by same counsel as before. Affirmed. 
 
 The Court by GilUllan, C.J. * * * There was evidence of a 
 previous arrangement between the sheriff and deputy to the effect 
 
 'E. C. Meacham Arms Co. v. Strong, 3 Wash. T. 61, 13 Pac. 245. 
 
THE officer's RIGHTS AND LIABILITIES. 337 
 
 that the latter should not serve any process issuing from the dis- 
 trict court ; that all such process should be served by the sheriff in 
 person. Defendants claim that, had this arrangement been acted 
 on, plaintiffs' [*8^] execution would have come into the hands of 
 the sheriff, personally, before service, and that he would have 
 served the executions in their proper order; that the deputy was 
 induced, by the attorney's false representations, to disregard the 
 arrangement, and to receive, and at once, without consulting the 
 sheriff, to levy plaintiff's execution. Such an arrangement, even 
 if it might bind the sheriff and deputy, could be of no effect as to 
 third persons. A deputy sheriff, it is true, is an officer of the 
 sheriff, appointed and removable by him, civilly responsible to him, 
 and acting only in his name. But the deputy's powers and duties, 
 so far as the public are concerned, are fixed by law, and cannot be 
 varied by any agreement between him and the sheriff. Those 
 powers and duties are vested in and imposed on him, not for the 
 convenience of the sheriff, but of the public. Notwithstanding the 
 arrangement, therefore, it was the duty of the; deputy to receive 
 the execution, and with all reasonable diligence to execute it. 
 That the deputy was, by false statements, induced to do his duty 
 in receiving the execution, and to perform his duty to levy it at 
 once, without delay, is not in law a fraud. Deceit, not followed 
 by what the law recognizes as a wrong, is not fraud. * * * 
 
 Judgment affirmed. 
 
 In Whitney v, Butterfleld, above cjted, a sheriff was sued for fail, 
 ure to levy before 1 a. m. Monday, a writ of attachment handed him 
 between 9 and 10 p. m. Sunday, by reason of which delay a later attach- 
 ment was first levied by one of his deputies in favor of another creditor. 
 The delay of an hour at midnight, after he could legally execute the 
 writ, was not sufficient ground for action, it appearing that the sheriff 
 had no notice of the other writ or warning that great haste was neces- 
 sary. The court discuss at length the degree of diligence required of 
 such officers. Compare Commonwealth v. Magee, ante, p. 307, and Rus- 
 sell v. Lawton, ante, 300, 330. 
 
 An officer received an execution at 4 p. m. with request to execute 
 it at once by taking a designated stock of goods in a store in a town 
 five miles distant, accessible by street car, through railway, or horse 
 and carriage, and at the same time was warned that the judgment 
 debtor would soon assign and was believed to be at that time making 
 out the papers. The sheriff promised to attend to it that night if he 
 had to go himself. He missed the train that night by reason of a 
 
 22 
 
338 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 recent change in time of departure and decided to wait till the next 
 day. He went on the train at 10 a m. the next day, and found the 
 store locked, an assignment having been made and filed between 11 and 
 12 a. m. that day. Afterward he returned the writ unsatisfied for want 
 of goods and was held liable in an action by the creditor for a breach 
 of official duty. Guiterman Brothers t. Sharvey, 46 Minn. 183, 24 Am. 
 St. 218, 48 N. W. 780. 
 
 PAYNE V. DREWE. 
 4 East 523. (44 Geo. III. A.D. 1804) 
 
 This decision was rendered by the English court of king's bench; 
 BUonborough, C.J., Grose, Lawrence and LeBlanc, JJ. 
 
 Under 29 par. II. — Rule of Priority — Duty of Officer — Liability to the 
 Creditor Whose Writ He Holds — Liability to the Other Credi- 
 tor — Liability for Contempt of Court — Distinguishing 
 Cases in Which One Officer Holds All the 
 Writs — Importance of Actual Levy. 
 
 Action by Payne against Drewe as sheriif of Dorset, for a 
 false return nulla bona to a ii. fa. on a judgment against C. Sturt. 
 Judgment for plaintiff. The sheriff first took and inventoried 
 sufficient goods of the execution defendant to satisfy the fi. fa., 
 but afterward quitted possession of them and returned his writ 
 nulla bona, because before his writ was issued the court of chan- 
 cery had ordered a commission of sequestration on the complaint 
 of H. W. Portman et al. against said C. Sturt to compel payment 
 of 2000L 
 
 Gaselee, for plaintiff. 
 
 Dampier, for defendant. 
 
 The Court by Lord Ellenborough, C.J. * * * We shall, for 
 the purpose of the present question, assume that the award of the 
 sequestration had the same obligatory effect as the award of a writ 
 of execution against the goods would now have at the common 
 law, and shall even further assume, * * * that a sequestration 
 binds from the very time of awarding the commission, * * * jjj 
 which respect it is put upon the footing of an execution at the 
 common law, * * * before the statute of frauds, and which execu- 
 tion at common lav/ then related to the teste or award of the exe- 
 cution ; I say, thus considering the effect of a sequestration for the 
 purpose of this question (and in so considering it we allow it the 
 most extensive effect which can possibly be claimed on its behalf), 
 it still does not appear to us that the sequestration in question did, 
 
THE officer's RIGHTS AND LIABILITIES. 339 
 
 under the circumstances, afford a sufficient excuse to the sheriff 
 for not executing the writ of fieri facias at the suit of the plaintiff. 
 The sheriff is not excused, if the sale he was required to make un- 
 der the fieri facias would, if made, have been a valid and effectual 
 one in favor of his vendee : and, if he would not, by making such 
 sale thereunder, [*S38] have subjected himself either to the action 
 of the party interested in the sequestration, or to the punishment 
 of the court of chancery as for a contempt of its process. Whether 
 the sale he would have made, supposing he had sold under the 
 fieri facias, would have been a valid and effectual one, depends 
 upon the sense in which, and the extent to which, goods shall be 
 considered as bound by the award of an execution before the stat- 
 ute of frauds, and by the delivery of the writ of execution since 
 that statute. The sense in which, and extent to which, goods are 
 in either case said to be bound is, that it binds the property as 
 against the party himself and all claiming by assignment from, 
 or representation through or under him: but it does not so vest 
 the property in the goods absolutely as to defeat the effect of a sale 
 thereof made by the sheriff under an execution. This was settled 
 in the case of Smallcomb v. Cross [reported, post, 445]. * * * 
 
 Assuming, therefore, upon these authorities of Lord Holt and 
 Lord Hardwicke, and particularly on the authority of the case of 
 Smallcomb v. Cross, &c. as decided by Lord Holt, and which has 
 been generally received and referred to as the established law on 
 the subject, that the sheriff could have made a valid and effectual 
 sale in this case; the next questions are. Would he, by executing 
 the writ of fieri facias, have subjected [*54^] himself to the action 
 of the party to the sequestration, or to punishment by the court 
 out of which it issued? As to the first of these questions, it is 
 certainly to be answered in the negative. What pretence of com- 
 plaint can he have against the sheriff who gave no notice of that 
 process in deference to which the sheriff was to forbear to levy, 
 which he might easily have made available by ordinary diligence, 
 and who took no steps for 18 months to make it so? Vigilantibus 
 non dormientibus leges subveniunt. If he did not enforce it dur- 
 ing that period, at what period was it to be expected that he would 
 do so? The commission extends to Mr. Charles Sturt's goods 
 
340 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 not in the bailiwick of one sheriff only, but throughout the whole 
 realm. Were all his majesty's subjects to hold their means of 
 remedy against the personal estate of Mr. C. Sturt, in whatever 
 county they might be found, in suspense and abeyance till the par- 
 ties to the sequestration should think fit to avail themselves of 
 theirs? * * * 
 
 As to the light in which the court of chancery would 
 view an execution at common law, executed {^544\ under 
 these circumstances ; the contempt, if any, which that court would 
 probably animadvert upon would be a contempt of its own process 
 by those who had procured it to be awarded, and the commission- 
 ers who were empowered, and who instead of putting it in force, 
 suffered it to become the means of protection to him against whom 
 it was granted and required to act under it. As against these par- 
 ties, and also against Mr. C. Sturt, the defendant in the execution, 
 the sheriff may, if he can make out a case of collusion between 
 them, yet perhaps be able to obtain some relief by the intervention 
 of that court in his favor. That protection and a full indemnity 
 he might have had for asking for in the first instance from that 
 court; or this court would, upon his application, have enlarged 
 the rule upon him to return the writ of Heri facias, unless the plain- 
 tiff would have indemnified him against the sequestration ; so that 
 if he now stand unprotected against the action of the plaintiff, it 
 is by his own neglect that he does so. * * * 
 
 The case of Hutchinson v. Johnston, i Term Rep. 
 729, in which it was holden, that where two writs of 
 iieri facias against the same defendant are delivered to 
 a sheriff on different days, and no actual sale of the 
 defendant's goods is made, the first execution must have the prior- 
 ity, may be supposed, on the first view of it, to lay down a doctrine 
 somewhat contrary to what has been already stated ; but that case 
 appears to me to decide only that where two writs of fteri facias 
 are delivered to the same sheriff, he must, as between himself and 
 the several plaintiffs in those executions, sell under that writ which 
 is first delivered, although he may have first seized under the last 
 delivered writ. But in the present case there are two different 
 writs or authorities, each so far binding the goods as to warrant 
 
THE officer's RIGHTS AND LIABILITIES. 341 
 
 a sale under them, one delivered to the sheriff, and another pre- 
 viously delivered to other persons, equally competent with the 
 sheriff to have seized under them. And the question is not which 
 of two writs, equally mandatory to the same person, shall have a 
 priority in point of execution by him, but whether one writ man- 
 datory to the sheriff for one purpose shall remain in his hands 
 wholly suspended in point of execution, merely because other per- 
 sons having a similar competent authority under other process of 
 another court to them directed have chosen [*5^5] to neglect the 
 execution of such last-mentioned process ; which brings the ques- 
 tion nearly to this, namely. Whether a writ which is from the de- 
 livery immediately binding as against the defendant, so as to tie 
 up his hands from alienating the goods which might be seized 
 under it, is to be regarded as in effect self-executed by its own 
 proper legal effect and force for all purposes ? That it is not, the 
 case of Smallcomb v. Buckingham decides ; for if it were so, then 
 any sale made by the sheriff under a second execution, when he 
 had a former one in his hands, would be a nullity in respect even 
 to the sheriff's vendee thereof, which would directly contradict 
 what was established in that case. It appears to me, therefore, 
 not to be contradictory to any cases, nor any principles of law, 
 and to be mainly conducive to public convenience, and to the pre- 
 vention of fraud and vexatious delay in these matters, to hold that 
 where there are several authorities equally competent to hind the 
 goods of a party when executed by the proper officer, that they 
 shall be considered as effectually, and for all purposes, bound by 
 the authority which first actually attaches upon them in point of 
 execution, and under which an execution shall have been first exe- 
 cuted. In this case, being of opinion that the sheriff would not, 
 by executing the writ of execution to him directed, have subjected 
 himself either civilly or criminally to any inconveniences, we think 
 that he ought to have done so; and not having done so, he has 
 made himself liable to this action, in which we are of opinion that 
 the plaintiff is entitled to recover. 
 
 Postea to the Plaintiff. 
 
342 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 M'GREGOR V. BROWN. 
 22 Massachusetts (5 Pick.) 170. (1827) 
 
 Knowledge by Other Creditors — Statutory Notice — Whose Duty to Re- 
 cord Levy — Failure to Return Writ, Effect — Parol 
 Evidence to Identify Property. 
 
 Action on the case by John McGregor against Henry C. 
 Brown as sheriff, for an alleged default of his deputy, R. Deming, 
 in not recording an execution and levy thereon or returning ac- 
 cording to the precept, by reason of which a subsequent attachment 
 obtained priority. Plaintiff's execution was levied on the "carding 
 machine building," the attachment on the "clothier's works." By 
 parol it was shown that both were the same. Judgment for plaint- 
 iff. Case submitted by agreement to this court, consisting of 
 Parker, C.J., Putnam, Wilde and Morton, I J. 
 
 Jones & Byington, for plaintiff. 
 
 Gold, contra. 
 
 Per Curiam. It is clear from the case of Waterhouse v. 
 Waite, 1 1 Mass. 207, that it is not incumbent on the officer to cause 
 an execution levied on land to be recorded. But it is his duty to 
 enable the creditor to have it put on record. Merely not return- 
 ing the execution to the clerk's office within three months after 
 the levy, will not in all cases subject him to damages, as appears 
 by the case of Tobey v. Leonard, 15 Mass. 200. But there the 
 execution was returned at the return day ; here it was not ; and the 
 court are of opinion, that it not being duly returned so that the 
 plaintiffs might obtain it of the clerk, the sheriff became liable, 
 unless he should prove that it was delivered to the plaintiffs in time 
 to have it recorded. No evidence of that sort has been offered. 
 
 We see no valid objection to the admission of the parol evi- 
 dence. It did not add to, nor contradict the return, but was intro- 
 duced to show that the land levied on under one description was 
 the same as that which had been attached under a different de- 
 scription. As to the right of property, it is said that the subse- 
 quently attaching creditors cannot hold the land, for that they had 
 notice of the plaintiffs' attachment ; and the case has been likened 
 to one in which a party has notice of a prior unrecorded deed. 
 But the same principle does not apply in the case of a prior attach- 
 
THE officer's RIGHTS AND LIABILITIES. 343 
 
 ment. It does not appear that the intervening creditors knew that 
 the plaintiffs would recover a [*i/'5] judgment and would levy on 
 the land ; and besides, all creditors who are in pursuit of satisfac- 
 tion of their debts by means of attachment, are considered as run- 
 ning a race on equal ground, and each is entitled to take advantage 
 of defects in the proceedings of the others. See Gushing v. Hurd, 
 4 Pick. 253. 
 
 Many statutes make the recording of the levy part of the officer's 
 duty. This is now the case in Mass. To the point that actual notice 
 d33S not cure failure to record, compare Doe v. Flake, 17 Me. 249. In 
 that case it was held that the second attaching creditor was entitled 
 to priority though he acted as appraiser when the unrecorded first levy 
 was made. The court said he might nevertheless not know that the 
 first levy had not been abandoned. 
 
 BURK V. CAMPBELL. 
 IS Johnson (New York) 456. (1818) 
 
 Liability of Officer for Failure to Return Writ by Return Day — Neces- 
 sity of Special Order to Return — Creditor's Election of Remedies. 
 
 Case by Burk against Campbell, sheriff of Franklin county, 
 for not execiltirig or returning a fl. fa. From judgment for de- 
 fendant plaintiff brings error. Reversed. 
 
 The Court by Thompson, Ch. J. * * * The only plea inter- 
 posed by the defendant was, that he had not been required, by any 
 rule of court, to return the said writ, according to the course and 
 practice of the court. To this plea there was a general demurrer, 
 upon which the court gave judgment for the defendant. 
 
 The judgment was erroneous. There can be no doubt that an 
 action will lie against a sheriff, for neglect of duty, in not returning 
 an execution delivered to him. The declaration in the court below 
 set forth, with all necessary certainty, the judgment and execution ; 
 the delivery of the same to the sheriff, before the return day ; and 
 that the defendant in the execution had sufficient goods and chat- 
 tels, lands and tenements, within the county, whereof the money, 
 required by the execution to be raised, might have been levied and 
 collected, but which the defendant neglected and refused to do. 
 It is no answer for the sheriff to allege that he had not been ruled 
 to return the execution. This he was bound to do, without being 
 ruled. The plaintiff- had his election to proceed either way ; and 
 
344 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 the sheriff cannot avail himself of his own neglect of duty to defeat 
 the plaintiff's action. This is a principle fully recognized by this 
 court in Hinman v. Brees, 13 Johns. 529. Our statute concerning 
 sheriffs recognizes such an action against the officer. It declares 
 that if any sheriff, or other officer, shall not make due return to any 
 writ delivered to him to be executed, he shall not only be [*458] 
 liable to attachment, or amercement, but, also, to an action on the 
 case for damages, at the suit of the party aggrieved, i N. R. L. 
 423. The judgment of the court below must be reversed. 
 
 Judgment reversed. 
 
 LEDYARD v. JONES. 
 7 New York (3 Selden) 550. (1852) 
 
 Liability of Officer for Failure to Make Amount of Execution Given 
 Him for Service — IVIeasure of Damages — Defenses. 
 
 Action by Ledyard against Jones as sheriff for failure to 
 return an execution. From judgment for plaintiff defendant 
 brings error. Affirmed. 
 
 N. B. Blunt, for appellant. 
 
 G. R. J. Bowdoin, for appellee. 
 
 Watson, J. There is but a single point in this case 
 which the court is called upon to decide, and that is, as to 
 the amount of damages the respondent is entitled to recover in this 
 action. The verdict finds that the appellant did not levy the execu- 
 tion placed in his hands : that he made a false return upon it : that 
 he did not return it at the expiration of sixty days: and it was 
 admitted on the trial that the defendant in the execution had both 
 real and personal property out of which the execution might have 
 been satisfied. The amount of the execution was $500.49, and the 
 jury found a verdict of $200. This question has been repeatedly 
 passed upon in the supreme court, and I regret that the decisions 
 are conflicting. In Patterson v. Westervelt, 17 Wend. 543, 
 where it was shown that the judgment debtor had abundant means 
 to satisfy the execution, the court held, that the plaintiff sustained 
 damages to the whole amount of the judgment; and that having 
 been kept out of his money by the wrongful act of the officer in not 
 executing and returning the process according to its commands, 
 the debt as proved by the judgment constituted {*553'\ the true 
 
THE officer's RIGHTS AND LIABILITIES. 345' 
 
 measure of damages. In the case of The Bank of Rome v. Cur- 
 tiss, I Hill, 275, the court held that the sheriff was prima facie 
 liable for the whole amount due, and that it was no answer to say 
 that the defendants in fi. fa. were still able to pay. This doctrine 
 was again laid down by the court in the case of Pardee v. Robert- 
 son, 6 Hill, 550, together with another upon which the appellant 
 has made a point, and that is, that the respondent might recover 
 the full amount of the judgment without averring special damages- 
 in his declaration. All of these cases, as well as Weld v. Bartlet,. 
 10 Mass. 470, 474, lay it down with this qualification, that the debt 
 is prima facie the true measure of damages, the sheriff being at 
 liberty to mitigate the amount by showing affirmatively that the- 
 whole sum could not have been collected if due diligence had been 
 exercised in executing the process. In the case of Stevens v.Rowe, 
 3 Denio, 327, the court held an entirely different doctrine. They 
 held that the plaintiff could not show that the judgment debtor 
 had real estate out of which the ft. fa. might have been satisfied 
 unless expressly averred in the declaration, and also that the sheriff 
 might mitigate the amount, not simply by showing his inability tO' 
 collect the money, but by proof that the debt was still safe and col- 
 lectible. I confess I am unable to see the justice of the rule laid 
 down in the case of Stevens v. Rowe, and if it is good law, the stat- 
 ute which gives the plaintiff a right to recover damages against a 
 sheriff who neglects to execute process delivered to him, is a mere 
 nullity. It in truth affords him no remedy whatever, and allows 
 an unfaithful and defaulting oiificer to take advantage of his own 
 wrong, a privilege that the law accords to no other person. Ac- 
 cording to this construction, if the officer is sued for a neglect of 
 duty, he can say the defendant in the execution had no property 
 out of which he could collect the money, and that it is conceded is- 
 a good defense, or he can say he has property out of which you can 
 still collect it, and therefore nothing but nominal damages can be 
 recovered against me, which can only be the damages the plaintiff 
 has sustained by the delay in collecting the money, simply the 
 V553] interest upon the interest, of the money due when- 
 it ought to have been collected. To such a doctrine I 
 can never yield my assent, for a plaintiff, if this is tol- 
 
346 iPEOCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 erated, might never be able to collect his debt. The sec- 
 ond execution issued upon the same judgment would admit 
 of the same defense, and so on, as often as they might be issued, 
 provided the judgment debtor did not in the meantime get rid of 
 Tiis property. The rule laid down by the court in the cases first 
 cited, is by far the most salutary, and to my mind a just and fair 
 ^exposition of the statute giving a remedy against defaulting offi- 
 cers. * * * [*554] * * * The judgment of the supreme court 
 should be affirmed. 
 
 Ruggles, Ch. J. and Jezvett, Johnson and Welles, JJ., con- 
 curred in the opinion of Judge Watson. 
 
 Gardiner and Morse, J J., dissented, but wrote no opinion. 
 
 Judgment affirmed. 
 
 See also Chaffin v. Crutcher, 2 Sneed (Tenn.) 360; Taylor v. Han- 
 cock, 19 La. An. 466. This is the better view. In the cases to the con- 
 trary, like Colyer v. Higgins, post, and Commonwealth v. Magee, ante, 
 the question seems to be disposed of without much consideration and 
 without being argued by counsel. In a later Pennsylvania case a con- 
 stable was sued for releasing property levied on and judgment ren- 
 dered against him for the amount of the execution, which the supreme 
 court affirmed, saying: "The measure of damages is not always the 
 amount of the execution but the value of the property levied on when 
 It does not equal the amount claimed in the execution. This furnishes 
 the true rule. But the presumption here is that the value of the goods 
 was at least equal to the amount claimed." Corson v. Hunt, 14 Pa. St. 
 510, 53 Am. Dec. 568. "What the sheriff could have made for the plaint- 
 iff, by a proper discharge of his duty, is the just and reasonable, as 
 well as the legal, standard of his liability." Commonwealth v. Contner, 
 18 Pa. St. 439. 
 
 COLYER V. HIGGINS. 
 62 Kentucky (i Duvall) 6, 85 Am. Dec. 601. (1863) 
 
 iPowers and Duties of Officer After His Term of Office Expires — Lia- 
 bility of Sureties to Old and New Officer— Character 
 of Venditioni Exponas. 
 
 A. J. James, for appellant. 
 
 C. Bacheller, for appellees. 
 
 The Court by Bullett, J. This is an action against Colyer, the 
 ■sheriff of Rockcastle county, and his sureties, upon an official bond 
 ■executed on the 3d of January, 1853, to recover the amount of an 
 •execution placed in his hands, and thirty per cent damages for his 
 failure to return the same for thirty days after the return day 
 
THE officer's RIGHTS AND LIABILITIES. 347 
 
 thereof. A judgment was rendered accordingly against the de- 
 fendants, from which they appeal. 
 
 In our opinion, the plaintiffs have not shown a right to main- 
 tain an action upon said bond. 
 
 The petition states, that in the year 1852, an execution in favor 
 ■of the plaintiffs, against one Kietley, was placed in the hands of 
 said Colyer, sheriff of said county, and was levied by him on some 
 property; that afterward, on the 24th of November, 1852, a writ of 
 venditioni exponas was issued thereon, returnable the fourth 
 Monday of January, 1853, and "was also in its lifetime [*7] 
 placed in the hands of said Colyer while sheriff as aforesaid ;" and 
 that he failed to return the same until the 25th of April, 1853. 
 
 Under the constitution of the state, the office of each sheriff 
 expired on the first Monday in January, 1853, or as soon there- 
 after as his successor qualified. Art. 6, § 4. The facts before 
 ■mentioned authorize the assumption that Colyer was elected and 
 •qualified for two terms, the first of which expired in January, 
 
 1853- 
 
 It does not distinctly appear, nor does it seem to be material, 
 whether the writ of venditioni exponas was delivered to Colyer 
 before or after the expiration of his first term. That writ gives 
 no new authority to the sheriff. It merely commands him to per- 
 form his duty under the original writ. According to the settled 
 principles of the common law, he who begins the execution of a 
 writ of fieri facias must end it. A sheriff who levies upon prop- 
 ■erty may sell it after the return day and after returning the execu- 
 tion, without a writ of venditioni exponas, and after he has gone 
 <5ut of office; and it is his duty to do so. Cox v. Joiner, 4 Bibb 
 (Ky.) 94; Wolf or d v. Phelps, 2 J. J. Marsh. (Ky.) 31 ; Rogers v. 
 Darnaby, 4 B. Mon. (Ky.) 238, 241 ; Irivin v. Picket, 3 Bibb (Ky.) 
 ^43 ; Lofiand v. Eiving, 5 Litt. 42 ; Neilson v. Churchill, 5 Dana 
 (Ky.) 333; Spang v. Commonwealth, 12 Pa. St. 358, and cases 
 cited. And if he sells property he must convey it, though he may 
 have gone out of office. Allen v. Trimble, 4 Bibb, 21 ; Trimble v. 
 Breckenridge, lb., 479. These principles, so far as they apply to 
 the question under consideration, do not appear to have been 
 changed by statute. 
 
348 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 It is clear, therefore, that if Colyer had gone out of ofSce on 
 the first Monday in January, 1853, it would have been his duty to^ 
 execute the writ of venditioni exponas, whether it came to his- 
 hands before or after the expiration of his term ; and that his sure- 
 ties (for his first term) would have been liable for his failure to dO' 
 so. It is equally clear, that if he had gone into office, for the first 
 time, in January, 1853, it would have been the duty of his prede- 
 cessor, and not his duty, to execute the writ ; and that his sureties 
 in the bond sued upon would not have been liable for his failure tO' 
 do so. It is evident, therefore, [*8] that the duty of executing 
 said writ was devolved upon him by his first, and not by his second 
 term of office ; and that the bond sued upon, which relates only to 
 his second term, did not bind either him or his sureties for the per- 
 formance of that duty, which appertained to his first term. 
 
 But the appellees have a right, independently of the bond, tO' 
 recover nominal damages from Colyer for failing to return the 
 writ as required by law ; and this is the only relief to which their 
 petition shows they are entitled. 
 
 Upon other points argued by counsel we need not express an 
 opinion. The judgment is reversed, and the cause remanded, with 
 directions to dismiss the petition against the sureties, and for fur- 
 ther proceedings against Colyer not inconsistent with this opinion. 
 
 Reversed. 
 HARTLEIB v. McLANE. 
 44 Pennsylvania St. 510, 84 Am. Dec. 464. (1863) 
 
 Sheriffs — Degree of Care Required of Them in Keeping Property — Lia^ 
 
 bility for Property Stolen from Them — Distinction 
 
 Between IVlesne and Final Process. 
 
 Case by Mathias Hartleib against John W. McLane as sheriff 
 of Erie county for value of goods levied on under plaintiff's £. fa. 
 and stolen between the day of levy and the day of sale out of a 
 store in which the goods were seized, and of which the sheriff had 
 kept possession. From judgment for defendant plaintiff brings 
 error. Reversed. 
 
 /. C. & F. F. Marshall, for plaintiff. 
 
 Benjamin Grant & William L. Galbraith, for defendant. 
 
 The Court by Thompson, J. There is but a single point of in- 
 quiry in this case; that involves the question how far a sheriff is 
 
THE officer's RIGHTS AND LIABILITIES. 349 
 
 liable for the safe custody of goods taken in execution by him, and 
 the degree of care to be observed, whether of an ordinary bailee for 
 hire, or a common carrier or innkeeper, so as to raise a responsibil- 
 ity for loss by theft. * * * [*5-'''?] In Wheeler v. Hambright, 9 S. 
 ■& R. (Pa.) 390, although the action was for an escape, yet the rea- 
 son for liability was rested upon general principles of public policy. 
 There the sheriff had made a return of non est inventus to a ca. sa., 
 but before the return his deputy had arrested the defendant on 
 another writ. Under these circumstances the sheriff was holden 
 as for an escape on the first writ. * * * 
 
 Why should a sheriff, having in custody the person of a de- 
 fendant as a satisfaction of the judgment on which his writ is 
 founded, on principle, stand on different footing from that on 
 which he would if he had the custody of the defendant's property 
 for the same purpose ? It is not easy to see the distinction, and a 
 more difficult task would be to point out where the argument, 
 good in the one case, is defective in the other. The proposition is, 
 that authority settles, that ordinary care is not sufficient in the one 
 case ; but inasmuch as direct authority does not exist either way, 
 ordinary care is sufficient in the other. This is not a non sequitur. 
 It seems to me to be more reasonable to apply the strict rule to the 
 custody of goods than to the person ; for if they be stolen the cred- 
 itor cannot levy again, and he must bear the loss without the 
 slightest default of his own; whereas, for an escape, if it is the 
 defendant's own act, he may be again arrested. In the one case 
 the debt is absolutely satisfied by the levy, in the other it is only 
 contingently so. * * * [*5-''5] * * * 
 
 The sheriff, when he levies, is armed with authority to become 
 the exclusive custodian of the property seized, and it is his duty to 
 become so in fact, if he would not risk its abstraction. This care 
 is his personal interest, if the law requires him to account for the 
 property, unless he is divested of it by the act of God, the public 
 enemies, the law, or by some irresistible accident, such as sudden 
 fires, or the like. Nothing but such a rule we think adequate for 
 such a trust, and we believe the stringency of the law in Pennsyl- 
 vania in regard to sheriffs, has so much increased the care of in- 
 cumbents of the office in the discharge of their duties, that it ac- 
 
350 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 counts for the fact that we have but few cases, comparatively- 
 speaking, against sheriffs for deficiency in the discharge of their 
 official functions. The opinion of jurors of what is due care and 
 diligence, although in many cases it is necessarily a standard of lia- 
 bility, is at best a loose one, especially in regard to ofiScers of influ- 
 ence, such as sheriffs. It would be found to be too flexible for 
 exact justice. Through sympathy for the officer the debtor and 
 creditor would be liable to be forgotten. One rule would govern 
 one case, and a different one another. It is infinitely better, there- 
 fore, to contract the necessity for a resort to vague standards than 
 to enlarge it. We shall doubtless find no lack of good and efficient 
 men ready and willing at all times to risk the responsibility of the 
 rule for the sake of the office. 
 
 An objection is sometimes urged that the officer is allowed no 
 fees for watchmen, or for the removal of goods. This is doubtless 
 because the law-making power has supposed that the taxable costs 
 for executing process, and in making sales, are sufficient for this 
 purpose. If they are not, the law should be altered ; for it would 
 be a bad system that would take away the control of the debtor 
 over his property, which may not, before sale, go into the hands of 
 the creditor for preservation, and yet leave it liable to be stolen or 
 embezzled while in the custody of the sheriff. [*5i''^] 
 
 In Watson on Sheriffs, i88, the rule of the English authorities 
 in regard to the liability of sheriffs in executing mesne process, is 
 thus stated : "After the sheriff has seized goods, it is his duty to 
 remove them to a place of safe custody until they can be sold, for 
 if they be rescued, the sheriff is liable to the plaintiff for their 
 value; Sly v. Finch, Cro. Jac. 514, Godbolt 276; Mildmay Y.Smith, 
 3 Saunders (Eng.) 343 ; and it is said that if the sheriff take cattle, 
 and afterwards the cattle die for want of meat, the sheriff is an- 
 swerable for the value returned." Clerk v. Withers, 2 Lord Raym. 
 1075. The rule of the common law undoubtedly was, and is, that 
 the sheriff is liable for goods seized on final process, unless pre- 
 vented by inevitable accident or public enemies. The auihoritieS 
 above cited prove this beyond doubt. See also as to this the opin- 
 ion of Mr. Justice Redfield, Bridges v. Perry, 14 Vt., 262. 
 
 The rule of the common law is maintained by this learned 
 judge in the case cited, and the learned counsel for the defendant 
 
THE officer's RIGHTS AND LIABILITIES. 351 
 
 in error were led into error in citing it as sustaining their theory of 
 the case, in not adverting to the distinction drawn between an at- 
 tachment, the object of which is to compel appearance, and aa 
 execution. In the former, the sheriff is held to occupy only the 
 position of an ordinary bailee. The reason for the distinction 
 seems to be not only in the effect between debtor and creditor as to- 
 satisfaction, but the delay before final process to dispose of the 
 property, sometimes extending to several years, and usually con- 
 tinuing for at least a year, until the case is finally tried. To hold 
 the sheriff to the strictness of the common law rule on the subject 
 of final process to cases of attachment, would, in the opinion of 
 this able judge, be unreasonable ; but he adds, "where property is 
 taken on final process, it is to be kept but a short time at longest, 
 so that it may be closely watched and kept with this severe dili- 
 gence for a few days without materially interfering with the duties- 
 of the sheriff." Where attachment process is used for different 
 purposes, sometimes as final, and at others as mesne process, as it 
 is in several of the New England states, errors on this point may 
 easily be made as to what is the judgment of their courts, without 
 carefully noticing the exact nature of the process adverted to. 
 There is a distinction, well defined, I think, between the two kinds- 
 of process. It was drawn directly from the common law distinc- 
 tion between custody on a capias ad respondendum and a capias ad 
 satisfaciendum. In the former it is said that the sheriff may 
 return a rescue; Mildmay v. Smith, 3 Saunders (Eng.) 343, and 
 note ; Clerk v. Withers, 2 Lord Raym. 1075 ; O'Neil v. Marson, 5 
 Burr. 2813 ; which he may not do in the latter. See authorities for 
 it above cited ; see, also, as to the rule of liability : Sanford v. Bor- 
 ing, 12 Cal. 539; Collins v. Terrell, 2 S. & M. (Miss.) 383; Aber- 
 crombie v. Marshall, 2 Bay (S. C.) 90. [*5i5] 
 
 A case much relied on by the counsel on both sides, is Brown- 
 ing V. Hanford, first reported in 5 Hill (N. Y.) 588, afterwards in 
 7 Id. 120, and finally in 5 Denio 586. The point of that case was, 
 whether a sheriff's return of a loss of goods by fire was evidence 
 in his own favor. It seems to have been held that it was not. Va- 
 rious judges and senators expressed their views, in that case, on 
 the extent of a sheriff's liability ; all agreeing that for an unavoid- 
 able accident, such as a sudden fire, he was not liable, and a major- 
 
;352 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 ity seeming to hold that he was only answerable for the absence of 
 ordinary care and diligence in regard to property taken on final 
 process. A distinction is made between the bailee or receiptor of 
 ,the sheriff, as he is called, and the sheritf when he retains the cus- 
 tody of goods. In the former, that nothing short of the act of 
 God, public enemies, or inevitable accident, will excuse the non- 
 •delivery of the property, while in the latter case, a loss, after ordi- 
 Jiary care and diligence bestowed, is not to be visited with liability. 
 The distinction seems hardly reasonable, and not quite logical. It 
 was said, by some of the judges in that case, that the distinction 
 .grew out of the form of the receipt, which is an agreement without 
 exception to deliver, while others say it is a general principle of 
 law. If the liability grows out of the contract, resulting from its 
 Aerms, then it does not affect any question or principle of law on 
 the subject. But if it result from legal principles, I cannot compre- 
 ,hend why there should be any difference between the sheriff when 
 fhe is bailee, and when his receiptor is bailee ; why utmost care will 
 not excuse in the one case, and less than that will in the other. We 
 'feel no disposition to adopt the uncertain theories of this case, and 
 abandon the salutary rule of the common law, which, although 
 there has been but little reported judicial discussion of the ques- 
 tion, has, I think, always among the profession been supposed to 
 'be the law of the state. I have no doubt, as was said in the case 
 just referred to, that casualties such as sudden fires would and 
 ought to be classed with inevitable accidents, and excuse the 
 sheriff. * * * 
 
 Judgment reversed, and venire de novo awarded. 
 
 To the same effect see Gilmore v. Moore, 30 Ga. 628; Collins v. 
 Terrall, 2 S. & M. (Miss.) 383. In Runlett v. Bell, 5 N. H. 433, a sher- 
 iff was held not liable to the attaching creditor for property deposited 
 with persons at the time solvent, who afterward converted the prop- 
 erty claiming to own it and then became insolvent, but stress was laid 
 ■on the fact that the creditor had sued them in the name of the officer 
 for the conversion, which was said to be adopting the officer's act. 
 But see Garrett v. Hamblin, 11 S. & M. (Miss.) 219, and Phillips v. 
 Lamar, 27 Ga. 228, in which last case the bank where the sheriff depos- 
 ited the money failed and he was held liable. 
 
 Only ordinary care is ever required of officers holding property 
 under attachments, and in the following cases this was made the meas- 
 ure of liability under executions: Cresswell v. Burt, 61 Iowa 590; 16 
 N. W. 730; State v. Nelson, 1 Ind. 522; Moore v. Westervelt, 27 N. Y. 
 234; Lambreth v. Joffrion, 41 La. An. 749, 6 South. 558. 
 
WHERE THEY MAY BE EXECUTED. 353 
 
 4. WHERE THE WRITS MAY RUN AND BE EXECUTED. 
 
 Under this head prepare again on : Pennoyer v. Neif, ante, 
 48 ; Lindley v. O'Reilly, ante, 65 ; Chicago, R. I. & P- Ry. Co. v. 
 Sturm, ante, 7s ; and, Gouwi v. Fountain, ante, 145. 
 
 KENTZLER v. CHICAGO, MILWAUKEE & ST. PAUL RY. CO. 
 
 47 Wisconsin 641, 3 N. W. 369. (1879) 
 
 Garnishment on Execution — Territorial Jurisdiction, at Common Law — 
 
 Constitutional and Statutory Provisions Construed — Effect 
 
 of Failure to Comply With Statute — Objection, 
 
 How Made — Proper Form of Execution, 
 
 Presumptions^Power to 
 
 Amend. 
 
 Garnishment against Chicago, M. & St. P. Ry Co. (in form as 
 if on an execution from the circuit court of Milwaukee county, but. 
 in fact) on an execution issued by the circuit court of Dane county 
 to the sheriff of Milwaukee county, on a judgment in favor of 
 Andrew Kentzler against C. S. Hardy, rendered in the municipal 
 court of the city of Madison and recorded in the office of the clerk 
 of the circuit court for Dane county. From an order of the circuit 
 court of Milwaukee county quashing the garnishment for defects 
 in the garnishment affidavit and summons, plaintiff appeals. 
 Affirmed. Whether a transcript of the judgment was ever filed in 
 the circuit court of Milwaukee county does not appear, and the 
 only statement concerning it in the execution is that the judgment 
 was rendered as appears by the transcript of it filed and docketed 
 in the office of the clerk of the circuit court of Dane county, and 
 commanding the sheriff to satisfy the execution out of any prop- 
 erty "belonging to such judgment debtor on the day when such 
 transcript was so filed and docketed in your county, or at any time 
 thereafter." 
 
 The Court by Ryan, C. J. The execution on which the pro- 
 ceeding of garnishment was taken, is returned among the 
 motion papers, and must be held to have been before the court 
 below on the motion. 
 
354 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 It is the foundation of the proceeding. The jurisdiction, so 
 to speak, of the proceeding of garnishment rests on the execution ; 
 and a defect in the execution fatal to its own validity, is equally so 
 to the proceeding taken upon it. Executio est finis et fructus 
 legis. And, by the law governing courts generally, every court 
 has inherent power to issue writs of execution on [*(5^j] its own 
 judgments, but not beyond its territorial jurisdiction. At the com- 
 mon law all process of all courts is limited to the territory over 
 which their jurisdiction extends, and the power of any court to 
 issue extra-territorial process is not inherent in it, but comes only 
 by express statutory grant. Sir Will Harbert's Case, 3 Reports, 
 (Coke) iia; Jacob's L. Diet., "Jurisdiction." 
 
 Section 8, Art. VII of the constitution, declares that the juris- 
 diction of the circuit courts shall extend to all matters, civil and 
 criminal, within the state, not excepted in that instrument and not 
 prohibited by law. This is broad language, but should be con- 
 strued in the light of other provisions of that instrument establish- 
 ing the judicial system. * * * 1*644] * * * And all the clauses 
 of the constitution, taken together, clearly limit the territorial juris- 
 diction of the circuit court, directly conferred by that instrument, 
 to the county in which it is held — clearly design the circuit 
 court in each county to be a county court, with jurisdiction, civil 
 and criminal, limited to the county, subject to a general, perhaps 
 unlimited, power of the legislature to extend its civil jurisdiction 
 throughout the state. 
 
 The legislative and judicial history of the state shows that 
 this has been, practically, from the beginning, the construction put 
 upon the constitution by the profession and by the people. The 
 statute of June 29, 1848, providing for the first election of judges, 
 limits the civil jurisdiction of a circuit court to its own county, as 
 the jurisdiction of the territorial courts had been limited; and 
 limits its mesne process in civil actions to its proper county, per- 
 mitting such process to go to other counties only after service of 
 some of the defendants in its own county. Various provisions fol- 
 lowed from time to time, enlarging the power in civil proceedings, 
 until now mesne process in transitory actions may generally issue 
 throughout the state. * * * 1*643] * * * 
 
WHERE THEY MAY BE EXECUTED. 355 
 
 So it is seen that the authority of the circuit court of Dane 
 county to issue the execution in this case to Milwaukee county 
 must come by statute. Without statutory authority, such an execu- 
 tion would be mere waste paper. 
 
 The only authority of law for issuing execution from a circuit 
 court to another county is found in § 5, ch. 134, R. S. 1858, now 
 § 2971, R. S. 1878. This provides that executions against property 
 may be issued to the sheriff of any county where the judgment is 
 docketed ; and it cannot issue to another county where the judg- 
 ment is not docketed. Smith v. Buck, 22 Wis., 577. It is true 
 that the language of the opinion in this case is confined in terms to 
 such executions as affecting realty, because the question there was 
 the validity of a sale of realty. But the judgment of the court 
 extends to all executions, because the statute makes no distinction 
 between executions against realty and personalty, and gives one 
 and the same authority to issue any execution, upon one and the 
 same condition. 
 
 The docketing of a judgment in the county to which the 
 execution may go is therefore a condition precedent of the 
 authority to issue it ; and it is hardly necessary to say that a statu- 
 tory power upon condition precedent cannot be executed without 
 compliance with the condition. The docketing of a judgment in 
 another county is, so to say, jurisdictional to an execution upon it 
 to that county : as much so as a judgment to an execution to any 
 county. And an execution issued to one county upon a judgment 
 docketed in another, but not in it, is very much like an execution 
 issued without any judgment, anywhere, to support it. 
 
 An execution, to be valid, must disclose on its face the [*(5^(5] 
 authority to issue it. Herman's Exec, § 55. An execution not 
 stating a judgment to support it is void. Equally so is an execu- 
 tion issued to another jurisdiction, not stating the condition on 
 which it may so issue. On this point Smith v. Buck, supra, prop- 
 erly understood, is conclusive. The case is not very well reported, 
 and the opinion, perhaps, not quite accurate in terms. It did not 
 appear in that case, as might be inferred from the report, that a 
 transcript of the judgment had not been docketed in the county to^ 
 which the execution issued. It only appeared that the execution 
 
356 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 did not SO state, and on that ground the execution was excluded by 
 the court below ; and the precise point of the judgment is that the 
 execution was void for not reciting the docketing of the judgment 
 in the county to which it was issued. The fact that it was not so 
 docketed did not otherwise appear ; but, because the fact was not 
 recited in the execution, the negative was probably assumed, on 
 the ground that quod non apparet non est. 
 
 The question in this case is clearly distinguishable, on sub- 
 stantial grounds, from Sabin v. Austin, 19 Wis., 421. There the 
 execution was issued to the county in which the judgment was ren- 
 dered. It recited the judgment, but not the time of docketing it, 
 in compliance with § 8, ch. 134, R. S. 1858, now § 2969, R. S. 1878. 
 This was held to be a defect only, amendable, and rendering the 
 execution voidable, not void. A sale under the execution was 
 therefore upheld. But the issuing of the execution within the ter- 
 ritorial jurisdiction of the court w,3S within the general power of 
 all courts, independently of statutory authority ; and § 8 went only 
 to the form of the execution, not to the authority to issue it. 
 Matter of form, in an act done under authority, is generally 
 amendable ; not matter on which the authority rests to confer juris- 
 diction of the act. And a circuit court issuing an execution defect- 
 ive in this particular to its own county, has before it the actual 
 docket of the judgment by which to amend the 1*64^] execution; 
 but, issuing an execution to another county, has not the docket of 
 the judgment in that county before it — ^has nothing before it by 
 which to amend the execution. 
 
 Nothing held or said in Jones v. Davis, 22 Wis., 422 ; Swift v. 
 Agnes, 33 Wis., 228, or Allen v. Clark, 36 Wis., loi, appears to be 
 jn conflict with the views taken in this case. 
 
 This is not the ground on which the summons to the garnishee 
 -was quashed in the court below, or on which the order was sup- 
 ported by counsel in this court. But, because it is a defect juris- 
 ■dictional to the whole proceeding of garnishment, it has been • 
 ■thought most fitting to rest the judgment of this court upon it. 
 The execution was void upon its face, would have been no protec- 
 ttion to the sheriff, and could support no proceeding to collect it. 
 The order of the court heloiv is affirmed. 
 
WHERE THEY MAY BE EXECUTED. 357 
 
 Later in a suit against tlie stieriff by one claiming by assignment 
 from the judgment debtor after the levy, to recover the value of the 
 goods, it was held that the irregularity in issuing the execution to and 
 levying it in another county before the transcript was filed there was 
 cured by subsequently filing it, the execution being fair on its face. 
 Rogers v. Cherrier, 75 Wis. 54, 43 N. W. 828. This decision was fol- 
 lowed in -giving judgment in favor of the purchaser at execution sale in 
 an execution brought to try the title, though the facts appeared on the 
 face of the execution. Hoerr v. Meihofer, 77 Minn. 228, 79 N. W. 964, 
 77 Am. St. Rep. 674. The ruling in Kentzler v. Chicago, M. & St. P. Ry. 
 Co. is criticized in this regard in Gowan v. Fountain, ante, 145, and this 
 criticism is approved in McDonald v. Fuller, 11 S. Dak. 355, 77 N. W. 
 581, 74 Am. St. Rep. 815. 
 
 As in the above case, the extent of the court's territorial jurisdic- 
 tion may be debatable; but that judicial writs have no force beyond the 
 borders of the court's territory is established beyond dispute. Needles 
 V. Frost, 2 Okl. 19, 35 Pac. 574; Rathbun v. Ranney, 14 Mich. 382; Roads 
 V. Symmes, 1 Ohio 281, 13 Am. Dec. 621. Compare, also, Lindley v. 
 O'Reilly, ante, 65. 
 
 In Kentucky absence of the statutory ground for sending the writ 
 to another county Is held to render the execution and sale thereon 
 "voidable, but not void, and its validity is made to depend on the inno- 
 cence of the purchaser." Sanders v. Ruddle, 2 T. B. Mon. 139, 15 Am. 
 Dec. 148. 
 
 TOLEDO, WABASH & WESTERN RY. CO. v. REYNOLDS. 
 72 Illinois 487. (1874) 
 
 Garnishment on Judgment — Service out of County — Garnishment as a 
 
 Suit — Statutes as to Residence Affecting Jurisdiction and 
 
 Service of Process — Appearance — Form of Judgment. 
 
 Garnishment by L. Marks against Toledo, W. &. W. Ry. Co., 
 as garnishee of T. J. Reynolds, principal debtor. From judg- 
 ment against the garnishee it brings error. Affirmed. 
 
 0. T. Reeves, for appellant. 
 
 P. E. Hosmer, for appellee. 
 
 The Court by Scott, J. In 1872, L. Marx recovered a judg- 
 ment in the circuit court of Washington county, against Reynolds, 
 on which execution was issued, and returned no property found. 
 Marx then sued out a garnishee process against the railroad com- 
 pany, which was served on its agent in McLean county. A plea to 
 the jurisdiction of the court was filed, to which the court sustained 
 a demurrer. Plaintiff in error having elected to stand by its 
 plea, the court rendered final judgment against it forthe amount of 
 the judgment, in favor of Marx, against Reynolds. 
 
358 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 It is insisted a proceeding in garnishment is an original suit, 
 and hence it is claimed it was not lawful to serve the garnishee 
 process upon an agent of the company out of the county where the 
 original suit was pending. The statute under which these proceed- 
 ings were had seems to authorize the judgment creditor to have 
 process directed to any county where any person may reside, who 
 may have money or effects in his possession belonging to the judg- 
 ment debtor. The statutory provisions are very broad and liberal. 
 It is declared it shall be lawful for the court or justice of the peace 
 before whom the original judgment had been rendered, to cause 
 any person or persons supposed to be indebted to or to have any 
 effects or estate of defendant, to be summoned forthwith to appear 
 "before said court or justice of the peace as garnishee or gar- 
 nishees." R. S. 1845, § 38, p- 307. 
 
 The remedy given by the statute is not limited. Any person, 
 whether resident or not of the county in which the original judg- 
 ment is rendered, may be summoned as a garnishee. It is not 
 material, therefore, to determine whether a proceeding in garnish- 
 ment is to be regarded as an original suit or [*^5p] a proceeding 
 in the nature of execution of the original judgment. In either 
 view, a court of general jurisdiction, by virtue of the statute giving 
 the remedy, may send its process to any county in tlie state where 
 the garnishee may be found. There is no difference between nat- 
 ural persons or corporations in this regard. Either may be sum- 
 moned as garnishee. It is true, a justice of the peace can not send 
 process beyond the territorial jurisdiction of such a court, as 
 defined by statute. 
 
 The judgment in this case was obtained in the circuit court, 
 and no reason is perceived why it could not send process of this 
 character to any county in the state. The fact the garnishee is to 
 be summoned to appear before the court which rendered the 
 original judgment, excludes the idea the proceeding can be com- 
 menced in any other county. Any other construction would defeat 
 the intention of the legislature in the passage of the act. Mani- 
 festly, it was the intention to give a remedy in exactly such cases as 
 this, to facilitate the collection of debts. 
 
 The second error, however, is well assigned. The filing of 
 
WHEN THEY MAY BE EXECUTED. 
 
 359 
 
 the plea to the jurisdiction was not a full appearance on the part of 
 the company. Hence it was error to render final judgment on sus- 
 taining the demurrer to the plea to the jurisdiction of the court. 
 The judgment should have been a conditional one, as upon default, 
 and a scire facias should have been ordered returnable to the next 
 term of the court, to show cause why the judgment should not be 
 made absolute. R. S. 1845, § 16, p. 67. 
 
 For the error indicated, the judgment must be reversed and 
 
 the cause remanded. 
 
 Judgment reversed. 
 
 This case arose under statutes providing as follows: "Any process 
 ■which may be issued by any clerk of either of said courts (circuit and 
 superior), or any judge thereof, in pursuance of law, shall be executed 
 
 * * * in any county or place in this state * * * " [R. s. 1845, p. 149, 
 §48: R. S. 1877, p. 327 Ch. 37, § 29.] 
 
 "It shall not be lawful for any plaintiff to sue any defendant out of 
 the county where the latter resides or may be found, except in local 
 actions, and except * * * where there is more than one defendant. • 
 
 * * " [R. S. 1845, p. 413, § 2; R. S. 1877, p. 734, Ch. 110, § 2.] 
 
 The decisions on this question are not entirely harmonious, and It 
 will be seen how greatly they are affected by the statutes; but the rule 
 stated above applies in most cases. Rood Garnish. § 237. If both 
 parties are non-residents of the state the garnishment should be where 
 the garnishee resides. Stern v. Prazer, Circuit J., 105 Mich., 685, 63 N. 
 W. 968. 
 
 5. WHEN THE WRITS MAY BE EXECUTED. 
 
 Clearly, the writ must be issued before it can be executed ; and, 
 from this viewpoint, read again: Gozvan v. Fountain, ante, 145, 
 and Hargan v. Burch, ante, 177. As to liability of the officer for 
 delay, read again : Albrecht v. Long, ante, 333 ; Commonwealth v. 
 Magee, ante, 307 ; Burk v. Campbell, ante, 343 ; and Ledyard v. 
 Jones, ante, 344. As to the effect of delay on the authority con- 
 ferred by the writ, and the validity of the acts done under it, read 
 again : Commomvealth v. Magee, ante, 307 ; Smith v. Osgood, ante, 
 318; and Colyer v. Higgins, ante, 346. 
 
360 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 6. WHO MAY EXECUTE THE WRITS. 
 
 Under this head prepare again : Gordon v. Camp, ante, 296 ; 
 Menderson v. Speaker, ante, 298; Burton v. Wilkinson, ante, 316; 
 Boucher v. Wiseman, ante, 332 ; Albright v. Long, ante, 333 ; and 
 Colyer v. Higgins, ante, 346. 
 
 McMillan v. rowe. 
 
 15 Nebraska 520, 19 N. W. 504. (1884) 
 Execution — Who Levy — Validity of Sale — Collateral Attack. 
 
 The Court by Cobb, C. J. This was an action of trespass 
 de bonis asportatis by William S. Rowe, plaintiff, against George 
 McMillan, Curtis Hull, Gibson Keith, and Chris. Kochler, defend- 
 ants. 
 
 It seems that Rowe, the plaintiff, was the owner of a quan- 
 tity of barley; that McMillan and Hull had a judgment against 
 said Rowe rendered by one Vandervoort, a justice of the peace; 
 that the defendant, Gibson Keith, assuming to act as a constable, 
 with the execution issued by said justice Vandervoort upon the 
 said judgment in his hands, seized and took as upon execution 
 the said barley of the defendant, advertised and sold it as upon 
 said execution, and that the same was bought, taken, and con- 
 verted to his own use by the defendant Chris Kochler. This was 
 the cause of action stated in the petition. * * * [*5'?J]- Upon 
 the trial to a jury, a verdict was found for the plaintiff and 
 against all the defendants for $118.98. * * * 
 
 The only points made by plaintiffs in error in their brief are : 
 First, The judgment creditors, McMillan and Hull, are not respon- 
 sible for anything done by Keith, even if he was a trespasser, as 
 he acted without their request or knowledge. A thorough exam- 
 ination of the bill of exceptions fails to show that these defend- 
 ants, McMillan and Hull, or either of them, or any attorney claim- 
 ing to act for them, had anything whatever to do with the issuing 
 of the execution, its service, or return, nor is there any evidence 
 that they received the money made thereon. Had there been such 
 
WHO MAY EXECUTE THE WRITS. 361 
 
 evidence, as one member of the court, I should be of the opinion 
 that such receipts would render them responsible for the acts of 
 Keith in taking the barley upon this execution; but there being 
 no such evidence, the verdict as to them is not sustained. The 
 other point is, that the statute directing how a justice of the peace 
 may appoint [*5^5] a special constable is not the exclusive mode j 
 the power existed at common law, and the issuing and delivery of 
 the execution were sufficient. We cannot agree to this proposition. 
 The authorities cited fail to sustain it. I do not think that there 
 exists at common law any authority in a justice of the peace to 
 appoint a constable to serve civil process. That such authority 
 existed to appoint special constables to serve criminal process in 
 certain cases is admitted. In this case there is no evidence of 
 the appointment of Keith as constable to serve the execution 
 either verbally or in writing; indeed, it would seem very clear 
 from the testimony of Vandervoort, the justice who issued the 
 execution, that he understood Keith to be a constable, and that 
 no appointment was desired or necessary. The provision of the 
 statute of this state on the subject of deputizing persons bv jus- 
 tice of the peace to serve process is as follows : 
 
 "A justice, at the request of a party, and on being satisfied 
 that it is expedient, may specially depute any discreet person of 
 suitable age and not interested in the action to serve a summons 
 or execution with or without an order to arrest the defendant or 
 to attach property; such deputation must be in writing on the 
 process." Code, § 1094. 
 
 This statute is, in my opinion, exclusive of any other method 
 of appointing persons to act as special constables in the service 
 of civil process. Its provisions not having been followed, it is 
 no protection to either Keith or Kochler — to the one in seizing 
 and selling the barley in question, or to the other in buying it at 
 the sale. The judgment of the district court as to the defendants 
 McMillan and Hull is reversed, but without costs ; and as to the 
 defendants Keith and Kochler, the said judgment is affirmed. 
 
 Judgment accordingly. 
 
 In a trial between plaintiff relying on a purchase under a fl. fa. in 
 his favor, and a claimant of the property, plaintiff offered in evidence 
 the fl. fa. with the endorsement thereon. The evidence was objected 
 
362 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 to "because said entry on said fi. fa. was made by another [than the 
 officer] and he could not delegate his authority to a private person." 
 The court said: "It appears from the evidence in this case that the 
 entry on the fi. fa. was written out by Greer in the presence of, and by 
 the direction of Hawkins, the levying officer, who was unable to write, 
 and that the officer signed said entry with his mark after the entry was 
 made by Greer. A levy is required to be entered on the process by 
 virtue of which the levy is made, but we do not regard it as necessary 
 that it should be in the handwriting of the officer." Cox v. Montford, 
 66 Ga. 62. 
 
 Unless given by statute, the sheriff has no more power to serve 
 process beyond his county than a person without office. When a sher- 
 iff levied on and sold a railway running through his county into another 
 and a bill was filed by the purchaser seeking to redeem from a mort- 
 gage on the property, the court held that the complainant had no title 
 because the property was sold entire and the sheriff had no authority 
 beyond the borders of his county. Benson v. Smith, 42 Me. 414, 66 Am. 
 Dec. 285. Compare Oldfield v. Eulert, 148 111. 614, 39 Am. St. 231. 
 
 WALES V. CLARK. 
 43 Connecticut 183. (1875) 
 
 Execution — Levy Before Receiving Writ — Effect. 
 
 Assumpsit in superior court of New Haven. Defendant 
 pleads to the jurisdiction that there was no personal service 
 and that the only service was by a deputy sheriff filing a certifi- 
 cate of levy upon lands when he had not and never had had any 
 original writ, and that he did not receive any such writ till the 
 day after the certificate was filed. Plaintiff demurred, and the 
 court reserved the question for the advice of this court. When 
 the deputy filed the levy, he had a telegram requesting him to do 
 so, and stating that the writ had been mailed to him. 
 
 The Court by Carpenter, J. The question in this case is 
 one of jurisdiction. Both parties are non-residents, and no per- 
 sonal service was made on the defendant In such cases the 
 situs of the property attached determines the jurisdiction. 
 
 Was there an attachment? Or, stating the question in 
 another form, can an officer make a valid attachment of real 
 [*j5(5] estate, before the precept, by virtue of which the attach- 
 ment is made, is placed in his hands ? The statute is as follows : 
 "Real estate shall be attached by the officer's lodging with the 
 town clerk of the town in which the land is situated, a certifi- 
 cate that he has made such attachment, * * * and said attach- 
 
WHO MAY EXECUTE THE WRITS. 363 
 
 ment, if completed as hereinafter provided, shall be considered 
 as made when such certificate is so lodged." The remainder of 
 the section prescribes the substance of this certificate, and pro- 
 vides that the officer shall, within four days thereafter, leave 
 with such town clerk a full and certified copy of the process 
 under which the attachment is made. Gen. Statutes, 1866, p. 4, § 17. 
 
 This statute was passed in 1855 ; and the lodging of a certifi- 
 ■cate is a substitute for the old mode of attachment, which was 
 by an entry on the land. The officer who had a writ of attach- 
 ment to serve went upon the land and that constituted the attach- 
 ment. The attachment is now made by lodging with the town 
 <:lerk a certificate, and it is expressly provided that the attachment 
 takes effect when the certificate is so lodged. Under the old 
 .statute, an entry without a process was clearly ineffectual ; under 
 the present, the lodging of a certificate before the process is 
 received is equally invalid. 
 
 The power and duty of an officer depend upon his posses- 
 sion of the process. The latter may be qualified, or the officer 
 may be relieved of it altogether, by instructions ; but it exists only 
 while the power exists ,and both come into existence when the 
 process is placed in his hands. Until then he has no authority 
 to act, and cannot be justified in interfering with the persons or 
 property of others. 
 
 It will hardly be pretended that an officer will be justified in 
 making an arrest in a civil suit before he receives a precept 
 commanding him to do it; nor can he take personal property in 
 anticipation of a writ of attachment. In such cases he must be. 
 prepared, if his right is challenged, to produce his authority. If 
 he cannot do it he is a trespasser and may be resisted as such. 
 
 The land in New Haven county was not otherwise attached 
 than by the officer's lodging with the town clerk the required 
 [*i8^] certificate on the day before he received the writ. It fol- 
 lows that there was no valid attachment, and the superior court 
 must be advised that it has no jurisdiction of the case. 
 
 "This is a plain case. Without a writ of attachment, the sheriff of 
 ■Story county had no authority or right to notify the appellant that he 
 ■was attached as garnishee, nor to take his answers to the interroga- 
 tories. * * * The district court has no more power to render a judg- 
 
364 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 ment upon a notice given and answers tlius taken and returned thani 
 if the same thing had been done by a justice of the peace, notary pub- 
 lic, a road supervisor, or a private individual." Judgment against the 
 garnishee reversed. Van Fossen v. Anderson, 8 Iowa 251. 
 
 SINGLETARY v. CARTER. 
 I Bailey Law (South Carolina) 467, 21 Am. Dec. 480. (1830) 
 
 Sheriff's Deed, Validity on Collateral Attack — Service of Process by 
 Party, In Interest or Nominal — Service by Deputy of Party. 
 
 Trespass to try title to land sold as defendant's property by 
 the sheriff under a £. fa. on a judgment in favor of the present 
 plaintiff and others, and purchased by the plaintiff. The judg- 
 ment and execution were produced, and the levy, sale and execu- 
 tion of the sheriff's deed to the plaintiff proved. The levy was- 
 made by one of the plaintiffs in the execution, and was objected to 
 as irregular and void on that ground, but the trial court overruled* 
 the objection, and the jury found for the plaintiff. The defendant 
 now moved to set aside the verdict as contrary to law. Motion- 
 granted. 
 
 The Court by Colcock, J. Without going into a con- 
 sideration of all the grounds taken in the brief, we are of opinion- 
 that the rnotion must be granted on the first, viz. ; that the deputy, 
 who made the levy, was one of the plaintiffs in the execution. The 
 law wisely foreseeing that the ministers of justice should be freed; 
 as far as practicable, from all the improper bias which may result 
 from self-interest, has declared that no man shall be his own offi- 
 cer, and that no one shall in his own person, and by his own hand; 
 do himself right by legal process. Therefore, when the officer is- 
 interested, it declares that another shall act ; and this, in principle, 
 applies to all, though to some with greater, to others with less- 
 force. 
 
 A distinction has been attempted, as to the nature of the pro- 
 cess, and the degree of interest ; but I am inclined to support the 
 broad ground as the safest, and to say that no officer, who [*468'\ 
 is interested in a suit, shall serve any process appertaining to it, 
 from the commencement to the conclusion. * * * 
 
 I am aware that it is said in some of the old cases, five or 
 six hundred years ago, that it was doubted whether a sheriff could 
 
WHO MAY EXECUTE THE WRITS. 365 
 
 serve a writ in which he was interested ; but these doubts, I think, 
 must always have been unfounded. The common law has been 
 eulogized as a system of reason and justice, adapted to the exigen- 
 cies of society. Now I ask, whether a proposition can be stated, 
 which would be more universally concurred in, than that no ofiBcer 
 should be permitted to act in his own case. I know of aone, which 
 I think should be more general in its application, I would say, 
 from a constable to the president of the United States. At this 
 very sitting we set aside a renunciation of dower, because the jus- 
 tice of the quorum, by whom it was taken, was interested in the 
 transaction, although for his children merely, and not for himself. 
 And in the case of May v. Walters, 2 M'C. (S. Car.) 470, it was 
 held that the service of a writ by the deputy of the plaintiff, who 
 was sheriff, was void; in which all the judges concurred, except 
 Mr. Justice Gantt.who dissented on the ground that the sheriff was 
 only the nominal [*^<5p] plaintiff. The doctrine is, however, sup- 
 ported by some of the old authorities, as in Done v. Smethier, 
 Cro. Car. 416; Wimbish v. Willoughby, i Plowd. 73. There can 
 be no distinction made between a deputy and the sheriff in such 
 cases; they are equally embraced in all the reasons of the law, and 
 are in fact identified. In Gage v. Graff am, 11 Mass., 181, it was 
 laid down, that process served by a deputy sheriff, where another 
 deputy of the same sheriff is a party, will be set aside on motion. 
 The motion is granted and a new trial ordered, because as the levy 
 was illegal, the sale was consequently void, and the plaintiff's title 
 was not proven. 
 
 Motion granted. 
 
 To the same effect on similar facts, Collais v. McLeod, 8 Led. L. 
 (N. Car.) 221. 
 
 HBYB & CO. V. MOODY & CO. 
 67 Texas 615, 4 S. W. 242. (1887) 
 
 Execution — Who Levy — Conflict of Jurisdiction — Sheriff and Deputy. 
 
 Action to try title to money in court. Judgment for de- 
 fendants. Plaintiffs appeal. Reversed. 
 
 McLemore & Campbell and G. E. Mann for appellants: 
 
 Thomas J. Gibson for appellees. 
 
 The Court, by Willie, C. J. On November 15, 1881, Oliver 
 
366 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 & Griggs sued out a writ of attachment against Bessling & Roller, 
 which was on the same day levied by T. E. Jackson, sheriff of 
 Limestone county, upon a stock of goods in Groesbeck, and on 
 the next day upon a stock of goods in Mexia. After levying 
 upon the Mexia stock the sheriff returned to Groesbeck, leaving 
 that stock, in the storehouse in which it was contained, and its 
 key in charge of three persons, with instructions to close the 
 doors and make an inventory of the goods. 
 
 Before leaving Mexia the sheriff was told that other attach- 
 ments [*(5j'7] would soon be there, to which he replied that J. M. 
 Waller (who was a constable and also Jackson's deputy) could 
 serve any process that could be served by the sheriff. After Jack- 
 son had left, a writ of attachment in favor of Gust Heye & Co. 
 against Bessling & Roller was placed in the hands of Waller, 
 who levied the same on the stock of goods in Mexia. Waller's 
 return showed that the writ was levied by him upon said stock 
 on November i6, at eleven o'clock, as per inventory filed, subject 
 to the levy of the attachment of Oliver & Griggs, and it was 
 signed, "T. E. Jackson, sheriff of Limestone county. J. M. Wal- 
 ler, deputy." On the nineteenth. Waller delivered the attach- 
 ment to the sheriff, who filed it with the papers of the cause. 
 Jackson reached Groesbeck on the sixteenth, and an attachment 
 in favor of W. L. Moody was on the same day placed in his 
 hands for levy. His return upon this writ showed that he levied 
 it upon the Groesbeck stock at one o'clock p. m., and on the 
 Mexia stock at half past two o'clock p. m., of that day, subject 
 to the Oliver & Griggs attachment. 
 
 All of the attaching creditors obtained regular judgments 
 upon their claims at the same term of the court. The sheriff 
 sold the two stocks under order of court, and, after paying off 
 the judgment of Oliver & Griggs, returned the balance of the 
 proceeds of the sale, viz., eighteen hundred dollars, into court; and 
 the present action tests the question as to whether this money 
 shall be paid to Gust Heye & Co. or to W. L. Moody & Co. 
 
 The court below held that the goods, when levied upon 
 under the attachment in favor of Oliver & Griggs, were in cus- 
 todia legis, and could not be attached by another officer, though 
 
WHO MAY EXECUTE THE WRITS. 367 
 
 a deputy of the officer by whom the first levy was made ; that the 
 sheriff in possession alone could make such a levy; that the 
 acts of the deputy were not by construction the acts of the 
 sheriff, unless adopted and ratified by him, and that there was 
 no such ratification. Upon this view of the law, judgment was 
 rendered for W. L. Moody & Co., and this appeal is taken by the 
 appellant from that judgment. 
 
 It is a general principle that goods attached by one officer 
 and in his possession, can not be attached by another officer. The 
 question whether it was rightly applied by the court below in the 
 present case depends upon whether the sheriff and his deputy 
 were different officers. Our statutes provide that sheriffs shall 
 have power, by writing, to appoint one or more deputies, who 
 shall have power and authority to perform all the acts and duties 
 [*6i8] required of their principals. Rev. Stat., Art. 4520. All 
 writs, including attachments, are directed to the sheriff or any 
 constable, but may be executed by a deputy sheriff, who makes his 
 return in the name of his principal. So far as the public is con- 
 cerned, there is no difference between the powers and duties 
 of the sheriff and his deputy; either can perform and can be 
 compelled to perform the same acts that are required of the 
 other. When a writ reaches the hands of a deputy it is in fact 
 received by the principal. He is liable for its proper enforce- 
 ment, and for all acts done by his deputy under its authority. If 
 goods are tortiously seized under it by the deputy, the principal 
 can be sued by the owner; if they are illegally disposed of by 
 the deputy, the principal is responsible. 
 
 As between the sheriff and the deputy, of course the former 
 can make the latter responsible for such losses or misconduct, 
 but with this the public has no concern. It follows that as to 
 the public, whose servants these officers are, the acts of the 
 deputy are the acts of the principal — ^the possession of the for- 
 mer is the possession of the latter. So far as the responsibilities 
 of the office are concerned, the sheriff is liable for the acts both 
 of himself and his deputy ; so far as its rights and duties are con- 
 cerned they are in every respect identical. This is not only the 
 true construction of our statute, but is clearly the rule at com- 
 
368 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 men law. Bacon's Abridgement, title Sheriff; Comyn's Digest, 
 title Officer ; Gwynne on Sheriffs, 43 ; Murfree on Sheriffs, § 18. 
 
 The acts of the deputy are performed in the name of the 
 principal, and they become so essentially the acts of the latter 
 that he may lawfully return that they were done by himself. 
 Freeman on Executions, § 384. From these principles we 
 can but conclude that the act of Waller in making the levy upon 
 the Mexia stock of goods was the act of the sheriff and amounted 
 to the same thing as if he had made the levy himself. As the 
 goods were in the possession of the sheriff under a former at- 
 tachment, it was of course proper for him to levy the subse- 
 quent writ of Gust Heye & Co. upon it, subject to the previous 
 levy of Oliver & Griggs. 
 
 We are cited to no authorities by the appellee which sustain 
 the ruling of the court below, that the sheriff and his deputies 
 are different officers and that the possession of attached goods 
 by the one is not the possession of the other. In the case of 
 Vinton v. Bradford, 13 Mass. 116, 7 Am. Dec. 119, it was 
 held that [*(5ip] the deputies of the same sheriff are dif- 
 ferent officers as to each other ; but it had been held by the same 
 .court in Watson v. Todd, 5 Mass., 273, that the possession of a 
 deputy was the possession of the sheriff. This doctrine of the 
 last named case was sanctioned by the former, and it was added 
 that the possession of the deputy being the possession of the 
 sheriff the latter could levy a second writ upon goods attached 
 by the deputy, the same being constructively in the possession of 
 the sheriff. 
 
 If the possession of the deputy is the possession of the 
 principal, it is because they are, in the eye of the law, identical 
 in so far as the duties of the office of sheriff are concerned. If 
 so, the acts of the former are the acts of the latter. Waller's 
 levy of the attachment of Heye & Co. was therefore the levy of 
 Jackson, and was under the authority of law made upKjn goods 
 in the possession of Jackson. It is proper to add that the New 
 England cases differ, as to the position which the sheriff and his 
 deputies occupy towards the public, from the decisions of other 
 states, probably on the ground that they are there treated in 
 
WHO MAY EXECUTE THE WRITS. 369 
 
 many respects as if they did not hold the same office. A deputy 
 is Hable directly to a party aggrieved by his misconduct ; and he 
 and the sheriff can not be sued as joint trespassers, and in at 
 least one of these states process is directed both to the sheriff 
 and his deputy. Murfree on Sheriffs, §§ 907, 938; Odiorm v. 
 Colley, 2 N. H., 66. 
 
 To hold as the court below did in this case that a deputy 
 can not levy upon goods already attached and in possession of 
 the sheriff would be to deprive the public of the benefit of a 
 deputy's services whenever a second attachment was to be levied. 
 The goods already attached being in the possession of the sheriff, 
 no matter whether levied by a deputy or not, could not after- 
 wards be subjected to another levy, except by the sheriff himself. 
 Deputies are appointed as well for the benefit of the public as of 
 the principal sheriff, and their powers must not be so construed 
 as to deprive the public of their services in any respect. 
 
 It may be added that in this case the sheriff ratified the act 
 of his deputy in making the levy for Heye & Co., and adopted it 
 as his own by filing his return as made among the papers of the 
 cause. 
 
 We are of the opinion, therefore, that Heye & Co.'s attach- 
 ment having come to the hands of Waller, the deputy, prior to 
 the time that Moody & Co.'s writ reached Jackson, the sheriff, 
 and having been levied upon the Mexia stock previous to the lat- 
 ter writ, was entitled to priority, out of the proceeds of the goods 
 [*d.?o] sold under the Oliver & Griggs attachment. This prior- 
 ity of levy upon the Mexia stock gave Heye & Co. the right to 
 have its proceeds applied to their debt next after Oliver & 
 Griggs were satisfied. Immediately upon the making of their 
 levy they were entitled to require Oliver & Griggs to exhaust the 
 Groesbeck stock, upon which there was no other writ levied, be- 
 fore levying upon the Mexia stock, upon which they held an 
 attachment lien. This right was not changed by any subsequent 
 levy upon the Groesbeck stock by Moody & Co. They could not, 
 by acquiring a subsequent lien, impair or interfere in the least 
 with the extent of the right of Heye & Co. to have their lien 
 satisfied out of the Mexia stock. This would, however, be the 
 
 24 
 
370 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 result if the levy of appellees upon the Groesbeck stock is to 
 affect the previous levy of the appellants upon that in Mexia. 
 
 Reversed and rendered. 
 
 7. FOR WHAT THE GARNISHEES MAY BE CHARGED. 
 
 Under this head prepare again : Chicago, R. I. & P. Ry. Co. 
 V. Sturm, ante, 71 ; Allen v. Hall, ante, 140; Bates v. Chicago, M. 
 & St. P. Ry. Co. ante, 245 ; Waterbury v. Board of Commission- 
 ers, ante, 256; Buchanan v. Ale.vander, ante, 265; Buniham v. 
 Doolittle, ante, 273. 
 
 BROWN V. DAVIS. 
 18 Vermont 211. (1846) 
 
 Property Which Might Be Seized, Liability to Garnishment — Character 
 of Possession Necessary — Right to Retain. 
 
 Trustee process by Jerusha Brown against Josiah Davis, prin- 
 cipal debtor, and against James M. Hacket as his trustee. Judg- 
 ment for plaintiff. Trustee excepted. AiSrmed. 
 
 The trustee disclosed, at the June term, 1844, of Addison 
 county court, that he had no goods, etc., of the prin- 
 cipal debtor, Davis, in his hands, or possession, except 
 that in the preceding March, Davis had permitted the trus- 
 tee to take a wagon, belonging to him, to use ; that he did not pur- 
 chase the wagon, nor agree upon any price for the use of it ; that 
 Davis had controlled the wagon when he pleased, and the trustee 
 had used it in his business, when necessary ; that the trustee had no 
 claim upon the wagon, nor any right to use it any longer than 
 Davis should choose to leave it in his possession; and that the 
 wagon was, at the time of disclosure, on the premises of the trus- 
 tee, subject to the control of Davis, or of any other person, who 
 could legally claim it. 
 
 P C. Tucker, for trustee. 
 
 /. Pierpoint,, for plaintiff. 
 
 The Court by Kellogg, J. The main objection, urged 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 371 
 
 to the maintenance of this suit against the trustee, 
 is that the wagon was not so intrusted or deposited 
 with the trustee, but that it might have been attached by 
 the ordinary process of law, and consequently that Hacket ought 
 not to be adjudged trustee. And we are referred to two cases in 
 Massachusetts as sustaining this proposition. In Allen v. Meg- 
 guire, IS Mass. 490, the court say, "If the specific articles, which 
 the supposed trustee has in his possession, might be come at to be 
 attached, the trustee process is not the proper remedy; for that 
 will lie only, where the goods, etc., cannot be come at to be attached 
 by the ordinary process of law." In that case the trustee claimed 
 that he had a lien upon the property, though in fact he had none ; 
 and of course the property might have been attached by the ordi- 
 nary process of law ; yet the court held that he was trustee, inas- 
 much as he claimed a lien upon the goods, when he had none, and 
 inasmuch as he did not disclose any thing, from which it might be 
 inferred that [*.?J4] he exposed them to attachment. The court 
 seem to have attached importance to the fact, that the trustee did 
 not expose the property to attachment, and it may be inferred from 
 the case, that, had not the trustee claimed a lien upon the property, 
 and had he offered it to the officer to be attached, he would not 
 have been held as trustee. 
 
 The case of Burlingame v. Bell, 16 Mass. 320, is an authority 
 to the same effect as the case last cited. It is a sufficient answer 
 to those cases, that the decisions are founded upon the peculiar 
 provisions of the statute of Massachusetts regulating trustee pro- 
 cess, which is essentially different from that of this state, and con- 
 sequently can have no legitimate bearing upon the case at bar. By 
 their statute it is, in express terms, made indispensable to the main- 
 tenance of the trustee suit, that the property should be so intrusted 
 or deposited in the hands of the trustee, that the same cannot he: 
 attached by the ordinary process of lazv. No such provision is 
 to be found in our statute. In the absence of any adjudged cases 
 \/hich are in point, the question before us must be determined by 
 reference to our statute regulating the trustee process. 
 
372 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 We think the case at bar is clearly within the letter and spirit 
 of the statute, and that Hacket was properly adjudged trustee. 
 Consequently the judgment of the county court is aMrmed. 
 
 The peculiarity in the statute of Massachusetts is in the title which 
 reads: "An. act to enable creditors to receive their just demands 
 out of the goods, effects and credits of their debtors which cannot be 
 attached by the ordinary process of law." Laws, Mass. 1794, Ch. 64. 
 Compare Wilson v. Harris, 21 Mont. 374, 54 Pac. 46, where the whole 
 question is discussed by a divided court. Upon the same point see also 
 Hooper v. Day, 19 Me. 56, 36 Am. Dec. 734. 
 
 I am aware of no other decisions not in harmony with Brown v. 
 Davis. In both the Massachusetts cases above cited the garnishee was 
 charged. 
 
 FIRST NATIONAL BANK v. DAVENPORT & ST. PAUL RY. CO. 
 45 Iowa 120, (1876) 
 
 Garnishment — Character of Possession Necessary to Render Gar- 
 nishee Chargeable — Servant as Garnishee of IVIaster. 
 
 Judgment being recovered by the First Nat. Bank against the 
 Davenport & St. P. Ry. Co. and the Davenport Ry. Con. Co., J. 
 S. Conner was summoned as garnishee under an execution issued 
 thereon. From an order discharging said garnishee plaintiff ap- 
 peals. Reversed. 
 
 Grant &■ Smith and C. Whitaker, for appellant. 
 
 Brown & Campbell, for appellee. • 
 
 The Court by Day, J. * * * The answer of the garnishee 
 shows that he was auditor and cashier of the operating department 
 of the Davenport Railway Construction Company. As auditor he 
 had charge of the accounts, examined agents' reports, and kept the 
 Ijooks. As cashier it was his duty to examine and receipt for the 
 ■cash remitted by the agents, to make collections from the roads, 
 .and to cause anything to be done necessary to the prompt and 
 Tegular collection of the earnings of the road, and to make such 
 disposition of the cash in hand as he was directed to make from 
 time to time by the general manager, Smith. At the time of his 
 garnishment he had on hand, of money so received, belonging to 
 the operating department of the Davenport Railway Construction 
 Company, $3,443. This money was kept in a safe provided by the 
 construction company, to which the garnishee alone had a key. 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 373 
 
 The garnishee claims that he is not liable because he did not have 
 independent control of the money, but was under obligation to dis- 
 pose of it as directed by his superiors. The position of appellee 
 cannot be better expressed than in the following quotation from 
 the argument of his counsel : "The fallacy of the plaintiff's argu- 
 ment consists in assuming that the garnishee had these moneys in 
 his possession and in his custody or under his control, a fact which 
 has not only not been proved, but the contrary most clearly and dis- 
 tinctly appears. The possession and control of property contem- 
 plated by the statute, does not mean the mere physical power to 
 take possession of it and carry it off ; but the independent posses- 
 sion — the present and immediate rightful custody of it, including 
 the right to retain that possession, and to maintain that custody 
 and control of it. [*i^(?] The law does not require that the gar^ 
 nishee should commit a trespass, or a gross breach of faith, in 
 order to obtain or retain possession of the attached property." 
 
 Appellee, in assuming that the possession which will warrant 
 the process of garnishment must be an independent possession, 
 coupled with the right to retain possession and maintain custody 
 and control is, we think, clearly in error. Aside from express con- 
 tract, one does not obtain such possession and control of the prop- 
 erty of another. Suppose a party makes a simple deposit of 
 money in a bank, without any agreement as to the time the deposit 
 shall remain. The bank holds the money entirely subject to the 
 control of the owner. It cannot rightfully hold the money an hour 
 after the owner has directed it to be paid out. Yet it cannot be 
 questioned that, while the money remains in the bank, the bank 
 may be garnished. Suppose garnishment process served upon the 
 bank, and that afterward the owner orders the money to be paid 
 out in a particular way. Does the bank commit a breach of faith 
 in holding the money, and refusing to dispose of it as directed by 
 the owner ? 
 
 The fallacy of the appellee's argument is in placing the duty 
 of the garnishee to his principal above his duty to obey the man- 
 date of the law. It may be conceded that the answer of the gar- 
 nishee fully discloses that it was his duty to pay out the money in 
 his possession as ordered by Smith ; but the process of the court 
 
374 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 imposed upon him a paramount duty to retain it in his possession, 
 and an obedience to that order would not render him a trespasser, 
 nor involve him in a breach of faith. We think appellee's counsel 
 concede enough to establish the liability of this garnishee. In 
 their argument they say : "We do not take the ground * * * that 
 Conner cannot be held because he was an employe, and not an 
 officer of the corporation. An employe may clearly have such 
 possession — such custody and control of the property of his 
 employer as to subject it to garnishment in his hands. It depends 
 altogether upon the nature of the employment. For instance, the 
 agent of a railroad at one of its stations certainly has the unquali- 
 fied and independent possession [*i2p] and control of the moneys 
 of the company which come into his hands. He is only an employe ; 
 yet the nature of his employment and of his duties may, and prob- 
 ably would, render the moneys in his hands subject to garnish- 
 ment. He has the independent possession, control and custody of 
 those moneys ; while the cashier whom the company might employ 
 to assist him in his work, by looking after and keeping accounts of 
 those moneys, would not have any such possession and control of 
 them." 
 
 Yet, these station agents are subordinate to the garnishee in 
 this case, and are required to remit to him the moneys by them 
 collected. Suppose such an agent had been garnished, and he had 
 immediately been removed, and ordered to pay over all the moneys 
 in his hands to Conner. Could he afterward retain the money 
 without a gross breach of faith? If he could, we are unable to see 
 why the garnishee in this case may not do the same; and if he 
 could not, it is apparent that a railway company may, at pleasure, 
 render the process of garnishment unavailing. We are satisfied 
 that the appellee had such custody and control of the money in 
 question as to render it subject to garnishment in his hands. He 
 should have retained that possession, and held the money subject 
 to the order of the court. In failing to do so he has magnified his 
 duty to his employer, and has ignored his obligations to the law. 
 The court should have held him liable upon his answer. 
 
 Reversed. 
 It is believed tliat tlie above decision announces the correct rule, 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 375 
 
 and it is supported by the weight of authority. See review of decis- 
 ions in Rood, Garnish. §§ 42 and 43. But in cases of this exact kind, 
 decisions to the contrary will be found in Pennsylvania, Maine, Tennes- 
 see, Kentucky and Missouri. Fowler v. Railway Co., 35 Pa. St. 22; 
 Sprague v. Steam Nav. Co. 52 Me. 592; Wilder v. Shea, 13 Bush. (Ky.) 
 128; Mueth v. Schardin, 4 Mo. App. 403. 
 
 The character of the conflict in the authorities will be seen by 
 reading the following abstract from a decision reversing a judgment 
 against a treasurer of a railroad company as garnishee of the com- 
 pany: "It is not every kind of holding that constitutes the possession 
 designated, nor every possibility of power over the property that gives 
 the control necessary to make it garnishable. The servant who rides 
 his master's horse to water, or keeps the keys of the stable, and has 
 access to and power to take and use the horse, has not the garnishable 
 possession and control, by reason merely of such custody and power. 
 And so, too, the clerk in the store, who has access to the merchant's 
 safe, and has charge and sale of the merchant's goods, and the 
 power to receive and pay out money from the drawer or safe, has not, 
 by reason merely of such charge and power, the garnishable posses- 
 sion and control of the merchandise and money. Such custody and 
 power may exist with the clerk, and still, the merchandise and money 
 not be in his possession and control in such wise as to make them the 
 subject of garnishment in his hands. The custody and power must go 
 beyond such occupation or holding and service, to constitute the gar- 
 nishable possession and control. Where to draw the line, and precisely 
 to deiine the rule, is diflScult and not safe to attempt — upon one side of 
 which exists, and on the other side does not exist, the garnishable con- 
 dition of the properties. It is safe, however, to say, that mere employ- 
 ment in the service of the owner, in and about his properties, and the 
 physical power, by reason of such employment, to handle, remove, re- 
 turn such properties, to receive and pay out moneys of the owner, do 
 not constitute the possession and control of the properties contem- 
 plated by the law of garnishment. Though such employment gives a 
 degree of physical power over the properties, the possession and con- 
 trol exist with the owner, and not with the employe or servant. Of 
 course such employment may exist, under circumstances with relation 
 to the properties, as to invest the employe with such possession and 
 control as to make them the subject of garnishment in his hands. It is 
 obvious enough, that employment and possession of the garnishable 
 character, may co-exist. But where the actual and substantial posses- 
 sion is with the owner, and the relation of the servant or employe to 
 the properties is such only as is incident to the employment and serv- 
 ice, the properties are not subject to garnishment as being in the pos- 
 session or control of the servant or employe. 
 
 "The servant who feeds and waters and curries the master's horse, 
 and keeps the key of the stable, the master having the actual and dom- 
 inant possession and control; the clerk who opens and shuts the store, 
 and sells the goods, and has charge of the keys of the money drawer 
 
376 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 and safe, subordinate to the actual possession and control of the mer- 
 chant; the treasurer of the corporation, who has charge of the safe and 
 the moneys therein, and receives and pays out under the Immediate 
 direction and control of the principal corporate oificers, are not deemed 
 in such possession and control of the properties, as subjects them, the 
 employes and properties, to garnishment. In such and the like cases, 
 the question Is, whether the actual and substantial possession is with 
 the employe, or whether his relation to the properties Is merely of em- 
 ployment and service, while the real possession and control is with the 
 owner or some other?" McGraw v. Memphis & O. Ry. Co., [1868] 45 
 Tenn. (5 Coldwell) 434. 
 
 GUTTERSON v. MORSE. 
 58 New Hampshire 529. (1879) 
 
 Garnishment — Character of Possession Necessary to Render Garnishee 
 Chargeable — Possession of Legal Title — Fraudulent Convey- 
 ance, Estoppel — Garnishee's Liability for Property 
 Destroyed after Service — Costs. 
 
 Foreign attachment. Defendant deeded his farm and gave a 
 bill of sale of his personal property to the trustee to defraud credi- 
 tors, but retained physical possession and control of the land and 
 of all the personal property except a yoke of oxen. 
 
 Mugridge, for plaintiffs. 
 
 A. L. Norris and Foivler, for trustee. 
 
 The Court by Doe, C. J. The sum of $80, received 
 by the trustee for the ox he sold, is held by the attachment. Pitts- 
 Held Bank V. Clough, 43 N. H. 178. He is not chargeable for the 
 property of which he did not have possession when the writ was 
 served on him, or afterwards. Gen. St., c. 230, s. 28. When a 
 trustee is adjudged chargeable for any specific articles in his pos- 
 session, the execution, issued against the defendant, contains a pre- 
 cept to levy the same thereon ; and if the trustee neglects or refuses 
 to deliver the articles to the officer having the execution, on 
 request, execution is issued against him, upon notice, as for his 
 own debt, for the value thereof. Gen. St., c. 230, jj. 38, 39. 
 He is required to deliver the articles to the officer, not because the 
 duty of taking possession of them is imposed upon him by the ser- 
 vice of the writ, but because of the service of the writ attaching 
 them in his possession, he is made trustee, and, for some purposes, 
 his possession is made the custody of the law. By direct attach- 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 3.77' 
 
 ment, the plaintiffs, avoiding the bill of sale, might acquire a lien 
 upon the property whether found in the defendant's or the trus- 
 tee's possession. In this process of foreign attachment, the trus- 
 tee can be required to give up property of which the attachment 
 made him legal custodian, and of which he has no title or right of 
 possession that he can assert against the plaintiffs ; but he cannot 
 be required to give up what he never had, or what, being returned 
 to the defendant before the attachment, has remained in the de- 
 fendant's possession. 
 
 The plaintiffs contend that the defendant carried on the farm 
 as agent of the trustee, and that the defendant's possession of the- 
 farm and personal property was the trustee's possession. But the 
 defendant's agency was a pretense, and a part of the fraudulent 
 transaction. By trustee process, B is not made the trustee of A's- 
 chattels, on the ground that they are A's property, in A's posses- 
 sion, under cover of a fraudulent sale to B, and a fraudulent 
 agency of A. Fraud, in this case, might invalidate the bill of sale 
 and the title founded thereon ; but the fiction of the defendant's 
 agency did not transfer the possession of the defendant's property 
 from the defendant to the trustee so as to make the trustee charge- 
 able for such property in this equitable proceeding. There being 
 no consideration for the conveyance, and the purpose being to 
 defeat the defendant's creditors, the defendant's agency was 
 feigned. The trustee's title and the defendant's agency were a 
 cover which may be removed from the defendant's chattels in the 
 defendant's possession. The trustee cannot be charged for them 
 [*5i-f] if the cover is not removed. Its removal does not show 
 that the simulated agency was a real one. 
 
 It is argued that the trustee is estopped to deny his possession 
 and the agency which he set up as a cover for the defendant's prop- 
 erty. But the plaintiffs were not induced to change their position 
 by their reliance upon a possession held by the trustee through the 
 agency of the defendant. On the contrary, they brought this suit 
 relying upon the fact that there was no such agency and no such 
 possession. It is a part of the plaintiff's case that such agency and 
 possession, which did not exist if the trustee had no title, were as- 
 unreal as his title. 
 
378 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 It does not appear that the plaintiffs can, by this process, 
 obtain anything of value from the ox that died in the trustee's pos- 
 session. 
 
 The trustee is liable for costs on the ground of fraud. Gen. 
 St., c. 230, s. 43 ; Kent v. Hutchins, 50 N. H. 92. 
 
 Trustee charged for $80 and costs. 
 
 AVERY V. MONROE. 
 172 Massachusetts 132, 51 N. E. 452. (1898) 
 
 Garnishment — Character of Possession Necessary to Render Garnishee 
 Chargeable — Assignment for Benefit of Creditors — Presumptions. 
 
 Trustee process. Trustee charged and excepts. Affirmed. 
 
 F. W. Blackmer & E. H. Vaughan, for trustee. 
 
 A. A. Wyman, for plaintiff. 
 
 The Court by Holmes, J. At the time of the service of the 
 writ in this action the person sought to be charged as trustee had 
 accepted from the principal defendants a conveyance of all their 
 property not exempt from attachment, consisting mainly of 
 machinery, supplies and stock on hand in a shoe factory, and book 
 accounts, in trust for the defendants' creditors, but had done noth- 
 ing about [*ijj] taking possession of the property. No creditors 
 appear to have become parties to the deed. The question before 
 us is whether these facts warranted the superior court in charg- 
 ing the trustee. 
 
 The title had passed as between the parties to the deed. The 
 trustee had the right to the immediate possession. We do not see 
 why he was not as well "able to turn it out, to be disposed of on exe- 
 cution," (Andreivs v. Ludlow, 5 Pick. 28, 31) as if he had taken 
 possession by a formal act. The case of Viall v. Bliss, 9 Pick. 13, 
 seems probably to have been similar to this, and in Maine it seems 
 settled that in cases like the present the trustee is to be charged. 
 Lane v. No-well, 15 Maine, 86. Arnold v. Ehvell, 13 Maine, 261. 
 Peabody v. Maguire, 79 Maine, 572, 584. Glenn v. Boston & 
 Sandwich Glass Co. 7 Md. 287. See also Mechanics' Savings 
 Bank V. Waite, 150 Mass. 234, 235; Gushing, Trustee Process, §§ 
 53-55; Drake Attachment, (7th ed.) § 482; Freeman, Executions, 
 {2d ed.) § 160. Section 29 of Pub. Sts. c. 183, is not intended to 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 379 
 
 limit the liability of trustees under deeds like this to cases where 
 they have taken possession, but simply to declare the existing law 
 that they may be charged by trustee process under § 21. Rev. Sts. 
 c. 109, § 35, Commissioners' note. We are of opinion that the 
 property was "intrusted in the hands" of the trustee within Pub. 
 Sts. c. 183, § 21. 
 
 It is suggested that it does not appear from the trustee's an- 
 swers to interrogatories that all the defendants had executed the 
 deed before service of the writ. It does not appear that they had 
 not. The deed was executed, and, if it be material, may be pre- 
 sumed to have been executed by all three of the defendants on the 
 day of its date, as it certainly was by two of them. 
 
 Exceptions overruled. 
 The early Massachusetts cases are in accord with Gutterson v. 
 Morse, ante. See opinion by Shaw, C. J., in Osborne v. Jordan, 3 Gray 
 277. Avery v. Monroe is the strongest case reported. There are sev- 
 eral late cases tending in the same direction. But Gutterson v. Morse 
 is believed to announce the rule which would be followed in most 
 states. See collection of all the principal cases in a review of Avery 
 V. Monroe in American Law Review May-June, 1899; Rood, Garnish. 
 §52. 
 
 SMITH V. MENOMINEE CIRCUIT JUDGE. 
 S3 Michigan 560, 19 N. W. 184. (1884) 
 
 Garnishment of Mortgagee — Mortgagee's Right to Retain Possession — 
 
 Officer's Rights and Duties — Manner of Sale — 
 
 Application of Proceeds. 
 
 Mandamus by James D. Smith and another, against C. B. 
 Grant, circuit judge. Granted. 
 
 B. J. Brown, for relators. 
 
 M. V. & R. A. Montgomery, for respondent. 
 
 The Court by Cooley, C.J. On February 7, 1883, one Can- 
 terbury brought suit in the circuit court for the county of Meno- 
 minee against one McClintock, and garnished the relators as hav- 
 ing in their hands property of McClintock. Judgment was re- 
 covered in the principal suit, and the garnishees disclosed that 
 they were in possession of certain goods and chattels of the esti- 
 mated value of $6,000, as mortgagees of McClintock, under a 
 -mortgage given to secure the payment of $4775, all of which was 
 <due and unpaid. The garnishment suit appears to have been 
 
380 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 brought to trial before a jury, who returned a verdict that the gar- 
 nishees had property of McCHntock in their hands which was of 
 the value of $7,000, and had a lien upon it to the amount of 
 $4,772.69. Thereupon the circuit court made an order * * * 
 [appointing a receiver of the property, directing the garnishees 
 to surrender it to him, and directing him to sell the same at pub- 
 lic auction and apply the proceeds, (i) to paying the costs of the 
 sale, etc., (2) to the payment of the garnishees' mortgage, and 
 (3) to return the balance into court to apply on the judgment of 
 the garnishing creditor] . 
 
 The garnishees complain of this order, and apply in this pro- 
 ceeding for a writ of mandamus to require its vacation. Several 
 objections are made to it, but only those will be noticed which ap- 
 pear to us to require examination for the purposes of a decision 
 of the case now before us. 
 
 The statute (How. Stat. § 8064) contemplates that the court, 
 when it shall appear that the garnishee has in his possession 
 [*§62] property belonging to the principal defendant, will appoint 
 a commissioner or receiver to collect and apply the proceeds upon 
 
 any execution in favor of the plaintiff and against the garnishee. 
 
 * * * 
 
 We have grave doubts of the right to take from a mortgagee 
 of chattels the property upon which he has a lien, except where, 
 for the protection of the rights of others, the necessity shall be 
 apparent. It is a serious interference with his contract rights. 
 It is a part of his security that the mortgage gives him authority 
 to take the property into his own possession ; and nothing which 
 may subsequently be done by or against the mortgagor can right- 
 fully diminish or affect this security. When a resort to legal 
 remedies becomes [*5(55] essential, all parties concerned may be 
 required to submit to some inconvenience, and perhaps to some 
 loss ; but in a case where, as in this case, the legal remedy is only 
 sought for the purpose of reaching a surplus after a lien is satis- 
 fied, and the lienholder is not concerned in the controversy, it can- 
 not be rightful to make the burden or the cost of the litigation fall 
 upon him, or to take from him substantial rights for the conve- 
 nience of the parties litigant 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 381 
 
 In this case the plaintiff, after obtaining his judgment, might 
 have sold on execution the interest of the mortgagor in the goods 
 and chattels mortgaged (How. Stat. § 7682) ; and for the pur- 
 poses of a levy might have taken possession temporarily. Cary 
 V. Hewitt, 26 Mich. 228; Macomber v. Saxton, 28 Mich. 516; 
 Nelson v. Ferris, 30 Mich. 497 ; Haynes v. Leppig, 40 Mich. 602. 
 But the levy must be subordinate to the right of the mortgagee 
 {W orthington v. Hanna, 23 Mich. 530) ; and a sale, if made with- 
 out first paying off the mortgage, must be made of the goods in 
 gross, subject to the mortgagee's lien. Worthington v. Hanna, 
 supra; King v. Hubbell, 42 Mich. 597; Haynes v. Leppig, 40 
 Mich. 602 ; Baldwin v. Talbot, 46 Mich. 19 ; Laing v. Perrott, 48 
 Mich. 298. It is not apparent on this record that an execution 
 would not have accomplished the purposes of effectual remedy 
 quite as effectually as the appointment of a receiver ; but if for any 
 reason a receiver was deemed necessary, he could not properly be 
 given greater powers than a sheriff would have had if execution 
 had been placed in his hands. It would have been proper to em- 
 power him to examine the property and inventory it, for the pur- 
 poses of an intelligent sale ; but a sale must be made by him of the 
 property in gross subject to the mortgage, and all his proceedings 
 must be at the expense, not of the mortgagees, but of the fund that 
 might be realized on the sale. 
 
 The order complained of should therefore be modified so far 
 as it authorizes the receiver to displace the possession of the mort- 
 gagees, and so far as it authorizes the receiver to sell the mort- 
 gaged property without regard to the mortgage lien, and to pay 
 the mortgagees from the proceeds after deducting [*5(54] expenses. 
 The statute only contemplates a sale when a greater sum than the 
 amount of the lien can be realized ; and this is inconsistent with 
 a sale in parcels, the outcome of which cannot be known when it 
 is begun. And it is unjust, even if the statute would permit it, 
 that the mortgagees should be subjected to the risks of a sale of 
 all the property to be made by a receiver at the expense of the 
 fund, in a suit which concerns only other parties, when under 
 their security they have a right to make sale themselves. 
 
 The order complained of does not require the receiver to give 
 
382 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 security. Probably this was an inadvertence. It should be cor- 
 rected. 
 
 An order will be entered in accordance with these views. 
 
 MOORE V. GILMORE. 
 i6 Washington 123, 47 Pac. 239. (1896) 
 
 Garnishment of Persons Indebted to Defendant and Others — Power t> 
 
 Split the Demand — Bringing in Claimants, Necessity 
 
 of, Whose Right or Duty. 
 
 Garnishment. From judgment discharging the garnishees 
 plaintiffs appeal. Affirmed. 
 
 Boyer & Guie, and Greene, Turner & Lewis, for appellants. 
 
 Ira Branson, for respondents. 
 
 The Court by Scott, J. The plaintiffs brought suit upon a 
 promissory note and obtained judgment against the defendant 
 Gilmore. While the action was pending, and a few days prior to 
 the rendition of the judgment, they caused a writ of garnishment 
 to be issued and served on the other parties respondent. The gar- 
 nishees appeared and answered, but did not disclose any liability 
 to the principal defendant. Plaintiffs controverted the answers, 
 and, a jury being waived, the issue came on for trial before the 
 court. The facts showed that some of the garnishees were in- 
 debted to Gilmore and one Kirkman as joint claimants ; that Kirk- 
 man was dead; 1*124] that after his death Gilmore and Kirkman's 
 executors brought suit on said claim against said garnishees and 
 obtained judgment ; that thereafter the plaintiffs brought suit on a 
 bond given, in said action last hereinbefore mentioned, to the 
 plaintiffs, by all of the garnishees, and obtained a judgment 
 against all of them ; and that none of the judgments had been paid. 
 On these facts the court discharged the garnishees, and the plain- 
 tiffs have appealed. 
 
 The question is presented whether, upon a claim against one 
 party, garnishees can be held upon a debt owed such party and 
 another person jointly. The authorities are in conflict upon this 
 point. A number of cases have been cited by the appellants, hold- 
 ing that a joint claim may be reached for the individual debt of 
 one of the joint claimants, and some of the text-books are to that 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 383 
 
 effect. Whitney v. Munroe, 19 Me. 42, 36 Am. Dec. 732; 
 Thorndike v. De Wolf, 23 Mass. (6 Pick.) 120; Miller v. Rich- 
 ardson, I Mo. 310; Fogleman v. Shively, 4 Ind. App. 197, 30 N. 
 E. 909 ; Perry v. Blatch, 2 Kan. App. 522, 43 Pac. 989 ; Drake, At- 
 tachments, §§ 566 to 572; 8 Am. & Eng. Ency. Law, p. 1169. 
 
 There are other cases and text-books, cited by the respond- 
 ents, holding to the contrary, and a number of cases have been 
 cited by both parties relating to the garnishment of debts due a 
 partnership on a claim against one of the partners. A distinc- 
 tion is drawn in the authorities between debts due joint claimants 
 and those due to a partnership, and in some states where it is held 
 that joint claims may be reached upon a debt against one joint 
 claimant, it is held that the interest of a single partner in a part- 
 nership claim cannot be so reached. The reasons for this usually 
 given are that a partner has no separable interest in any specific 
 partnership property, and that such property [*/^5] is first liable 
 for partnership debts, and to such claims as may be due the other 
 partners owing by the partner proceeded against, and that the 
 effect of this is to so involve the proceedings as to render the rem- 
 edy impracticable of enforcement. If there were no such debts, 
 however, it would seem that this reason ought not to prevail, but 
 with that question we have not to deal in this case. 
 
 We shall not undertake to review the authorities cited in de- 
 tail, but we have examined them and are of the opinion that the 
 better sustained rule is that a joint claim may be reached by gar- 
 nishment to the extent of one of the claimant's interests therein to 
 satisfy his individual debt. The reasons given in those cases 
 holding that a joint debt may not be so reached are not always 
 satisfactory or tenable. A very general one given is that the gar- 
 nishing creditor can have no greater rights or privileges than the 
 principal defendant or primary creditor of the garnishee. An- 
 other one is that the demand cannot be severed ancj thus subject 
 the garnishee to the liability of several suits. Also, that the other 
 joint claimant is an interested party and entitled to half the moneys 
 collected. 
 
 Aside from the question that the garnishing creditor may al- 
 ways inquire into fraudulent transactions between the principal 
 
384 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 defendant and the garnishee for the purpose of placing such de- 
 fendant's property beyond the reach of his creditors, tKfe law is 
 well settled that a single claim against one party may be severed 
 to the extent of taking only sufficient of it to satisfy the demands 
 of the garnishing creditor. The fact that the garnishee may be 
 -authorized to pay the whole demand to the officer, or to turn over 
 the whole property to him, as the case may be, can have no bear- 
 ing on this, for it might not always be allowable, at his option, 
 [*j.?(5] as in a case where he should be under two garnishments 
 -from different courts, to recover different claims against the prin- 
 cipal defendant. If the law will thus sever a single demand owing 
 by the garnishee to the principal defendant solely, it would seem 
 -that the only reason for holding that the garnishee cannot be held 
 to answer for the debt of one, where he owes two or more jointly, 
 would be in consequence of a failure in the law to provide for the 
 -protection of the interests of the other joint claimants and the gar- 
 nishee as against them ; and, if such protection is given, the diffi- 
 Hculty is obviated. 
 
 As the right of garnishment is a statutory one, it is probable 
 that the conflict in the authorities is due in a measure to a differ- 
 -ence in the statutory provisions of the several states upon the sub- 
 ject of garnishment. The tendency of legislation, in this state 
 ■at least, has been to extend rather than curtail the right. The 
 general purpose of the law is to subject all property of the debtor, 
 over and above his exemptions, to the payment of his debts. 
 Where the right of garnishment is given it would seem that the 
 •question as to whether it would be available in a particular case 
 would be dependent upon two matters : these are, that the remedy 
 -should be capable of enforcement, and a due protection given to 
 the rights of third parties who thus become unwillingly involved 
 in such controversies between a creditor and his debtor. It may 
 be said that the law must award such parties, who may well be 
 ■styled "innocent parties," ample protection, where they are called 
 upon to respond to some other person than their own contract 
 creditor, as in the case of garnishment. Such questions, of course, 
 must be largely determined by the statutes of the particular state 
 -upon the subject of garnishment, and the question arises, [*I27] 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 385 
 
 what are the statutory provisions of this state relating to these 
 matters ? * * * H- ^ju ^g seen that the remedy here is a favored, 
 broad and comprehensive one, and § 322 of the code requires that 
 it shall be liberally construed in furtherance of its objects. 
 
 There can be no question as to the practicability of the rem- 
 edy as applied to the facts of this case, and it would seem, there- 
 fore, that the only question is, does the law afford sufficient pro- 
 tection to the rights of these garnishees and the other joint claim- 
 ants? If so, a reasonable construction to effect its evident pur- 
 poses, would require us to hold that a joint debt may be reached 
 to satisfy a demand against one of the joint claimants. But we 
 are of the opinion that the other joint claimants must be held to 
 be interested parties in a proceeding like this, as the relations be- 
 tween the [*i^5] joint claimants and the garnishee will be so ma- 
 terially changed by virtue of the proceeding. It is clear that the 
 garnishing creditor can only enforce collection of the interest of 
 his debtor in the joint claim, and then only to the extent of satis- 
 fying his own claim, and a balance might be left due such debtor 
 from the joint debtor, though less, to the amount of that recov- 
 ered, than that due to the other joint claimant. It is evident that 
 such a change in the relations of the parties should not be made 
 without giving the other joint creditor an opportunity to partici- 
 pate in the proceedings and insist upon the payment of the whole 
 claim, and upon his right at that time to his share of the moneys 
 collected. We have no doubt that the joint claimants and their 
 debtor might make any agreement between themselves that was 
 satisfactory to them, as relating to the payment of the balance of 
 the claim after the demands of the garnishing creditor are sat- 
 isfied; but, for the protection of all parties, the other joint claim- 
 ants should be brought in, or at least given an opportunity to come 
 into the proceeding to protect their rights, and also to the end that 
 they should be thereby concluded as against the garnishee to the 
 extent of the amount recovered of him. 
 
 From the decisions, it looks as though in some instances un- 
 necessary hardships are placed upon a garnishee in such a pro- 
 ceeding, where he has no direct interest as between the parties, in 
 requiring him to act at his peril to see that the garnishment 
 
386 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 proceeding is properly instituted and a valid judgment rendered 
 against him, or that otherwise a payment thereunder would be no 
 protection to him in an action by the debtor in the principal action. 
 This could be obviated in all cases by making such principal 
 defendant a party to the garnishment proceedings, where he is 
 [*ji'p] not one, so that the whole matter could be determined and 
 the rights of all parties concluded and the garnishee thus effectu- 
 ally protected. 
 
 Section 150, Code Proc, provides that the court may deter- 
 mine any controversy between parties before it when it can be 
 done without prejudice to the rights of others, or by saving their 
 rights. But when a complete determination cannot be had with- 
 out the presence of other parties, the court shall cause them to be 
 brought in. This statute not only gave the right or power to 
 bring in the other joint claimants in this instance, but, in our 
 opinion, it should be held as making it obligatory, as such seems to 
 be the intent of the provision. It is true that, in Marx v. Parker, 
 9 Wash. 473, 43 Am. St. 849, 37 Pac. 675, we said that the court 
 could not, upon its own motion, require a third party to intervene 
 in a garnishment proceeding ; but this would not prevent the court 
 from requiring a third party to appear upon the application of 
 either of the parties in court. While the method of bringing such 
 third party into court is not clearly pointed out, it seems to us to 
 be clearly authorized in some manner by this section, and also by 
 § 49, which provides that where jurisdiction is given, all means to 
 carry the proceeding into effect are also given ; and if the course 
 of proceeding is not specifically pointed out by statute, any suitable 
 process or proceedings may be adopted which may appear most 
 conformable to the spirit of the code. This statute was clearly 
 intended for a purpose, and that purpose is apparent. It would 
 apply to a case of this kind, in the absence of any special provision, 
 and it must be held in force, it seems to us, and to cover such a 
 case as this ; or it must be held that its provisions are so general as 
 to be [*I50] wholly inoperative, and we can see no reason for so 
 holding and thus deprfving it of any effect. Provision is also 
 made whereby the other joint claimant could intervene upon his 
 own motion, or, in case there was a dispute as to the fund, pro- 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 387 
 
 vision is made for the payment of the same into court by the gar- 
 nishee. Code Proc, §§ 152 to 156. 
 
 Now, while either of the parties could have applied to the 
 court to have the other joint claimants brought into the proceed- 
 ings, it seems to us that the obligation rested upon the plaintiffs, 
 as they were the moving parties. They might have done this in 
 the first instance, if they knew the facts, by applying to the court 
 for an order and having suitable process or notice served upon the 
 other joint claimants requiring them to appear in the proceeding 
 and ask for such relief as they were entitled to ; or, in consequence 
 xif a failure to do so, to be concluded by the judgment thereafter 
 rendered ; or they might have done so afterwards, when the nature 
 of the indebtedness was disclosed. While the defendants in the 
 garnishment proceeding had this privilege, it was not incumbent 
 on them to exercise it, and as the plaintiffs did not ask to have the 
 matter put in shape so the court could protect the interests of all 
 parties, there was no error in dismissing the proceedings, and for 
 that reason The judgment is affirmed. 
 
 FOSTER V. SINGER. 
 69 Wisconsin 392, 34 N. W. 395. (1887) 
 
 Garnishment of Wages — Contingent Liability — The Test — Debts to 
 
 Become Due. 
 
 Garnishment. Garnishee discharged. Plaintiffs appeal. 
 AiSrmed. 
 
 Chas. M. Bice, for appellant. 
 
 Adolf Herdegen, for respondent. 
 
 The Court by Taylor, J. Foster and others commenced an 
 action in justice's court against M. Phillips, on the 27th day of 
 August, 1885. A garnishee summons was served in said action 
 upon the respondent Singer on the 28th of August, 1885. The 
 action between the appellants and the garnishee was tried in the 
 justice court, and judgment rendered [*393] against the garnishee 
 for $47. From this judgment the garnishee took an appeal to the 
 county court, and on the trial there the court ordered the plaintiff 
 nonsuited, and the garnishee discharged, with costs. From the 
 judgment entered in favor of the garnishee for costs the plaintiffs, 
 appeal to this court. 
 
388 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 The evidence on the trial in the court below showed that the 
 garnishee employed Phillips, the defendant in the main action, as a 
 traveling salesman at a salary of $125 per month, to be paid at the 
 end of each month. The appellant introduced in evidence on the 
 trial in the county court an account taken from the books of the 
 garnishee, showing, among other payments to the said Phillips, 
 that he had paid him on the 31st day of August the sum of $125, 
 This account also shows that Phillips was credited with his salary, 
 $125, on the last day of each month, and that payments were made 
 on the last day of each month for the salary of each month, ex- 
 cept that in the month of July there were credits of $5, on the 6th ; 
 $2 on the 26th ; $5 on the 27th, and $1 13 on the 31st of July. The 
 evidence of the plaintiffs also showed that the garnishee Singer 
 testified in the justice's court that Phillips was employed by him as 
 a salesman at a salary of $125 per month, due at the end of each 
 month. 
 
 The learned county judge nonsuited the plaintiff because it 
 appeared from all the evidence in the case that there was nothing 
 due or owing by the garnishee to Phillips on the day the garnishee 
 summons was served on him, viz., on the 28th of August, 1885. 
 We think the nonsuit was properly granted. The statute fixes the 
 liability of the garnishee upon the status of his relation to the prin- 
 cipal defendant at the time the garnishee process is served. See 
 sec. 3719, R. S. 1878. The test of the liability of the garnishee to 
 the creditor of the defendant is generally this : Could the defend- 
 ant have maintained an action against the garnishee at [*3P4] the 
 time the garnishee process was served to recover the debt or liabil- 
 ity sought to be garnished ? It seems to us evident that under the 
 testimony given in this case, had Phillips brought his action for 
 his salary for August, 1885, on the day the garnishee summons 
 was served, viz., 28th of August, his action would have been pre- 
 maturely brought, and he must have failed in his action. There 
 certainly was nothing due to Phillips on the 28th of August, 1885. 
 See St. Louis v. Regenfuss, 28 Wis., 144, 147 ; Alien v. Megguire, 
 15 Mass. 490; Hadley v. Peabody, 79 Mass. (13 Gray) 200. 
 
 But it is urged that the statute extends the liability of the gar- 
 nishee to cases in which he would not be liable to an action by his 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 389 
 
 creditor. This claim is well founded. The statute provides that 
 the garnishee shall stand liable to the plaintiff to the amount of the 
 personal property, money, credits, and effects in his hands belong- 
 ing to the defendant, and the amount of his own indebtedness to 
 the defendant then due, or to become due, and not by law exempt 
 from sale on execution. See sec. 3719, R. S. And the provision 
 for judgment against the garnishee contains a similar provision. 
 See sec. 3725, R. S. 
 
 The only question in the case, therefore, is whether there was 
 anything "to become due" from the garnishee to Phillips, on the 
 28th of August, when he was served with the garnishee summons, 
 within the meaning of the statute above quoted? We think this 
 question has been answered by this court against the claim of the 
 appellant. In Bishop v. Young, 17 Wis. 47, 53, the present chief 
 justice, in speaking of the construction to be given to the language 
 of the statute above quoted, says : "And the 'debts due or to 
 become due,' evidently relates to such as the garnishee owes abso- 
 lutely, though payable in the future. We have no idea the statute 
 intended to include in the language 'to become due' a debt which 
 might possibly become due upon a performance of a contract by 
 the defendant in attachment. [*5P5] * * * There was nothing 
 absolutely due him at the time of service of garnishee process upon 
 the respondent. And whether anything would become due, de- 
 pended upon a contingency." See also, Smith v. Davis, i Wis. 
 447; Huntley v. Stone, 4 Wis. 91. Under the evidence in the case 
 at bar there was nothing due absolutely from the garnishee to 
 Phillips, when he was served with the garnishee summons. The 
 evidence clearly shows a hiring by the month for a salary to be 
 paid at the end of the month, and according to the decisions of this 
 court the contract is an entirety. Phillips could not recover any 
 part of his wages unless he worked the whole month. If Phillips 
 had quit work on the 29th, he could not have recovered any part of 
 his wages for the month. The debt, therefore, would only become 
 due upon the contingency that Phillips continued to work for the 
 garnishee for the entire month. See Gordon v. Brewster, 7 Wis. 
 355 ; Lee v. Merrick, 8 Wis. 22g; Jennings v. Lyons, 39 Wis. 553 ; 
 Diefenback v. Stark, 56 Wis. 462 ; Koplitz v. Pozvell, 56 Wis. 671. 
 
390 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 It can make no difference as to his liability whether the sum- 
 mons was served on the 28th day of the month or on the second. 
 In either case whether anything would become due depended upon 
 Phillips working the entire month ; and if the garnishee is liable 
 when served on the 28th, he would be equally liable if he had been 
 served on the 2nd, if it appeared on the trial that Phillips had 
 worked the entire month. See, also, upon this subject, Hancock 
 V. Colyer, 99 Mass. 187; Knight v. Bowley, 117 Mass. 551 ; Wood 
 v. Partridge, 11 Mass. 488; Wyman v. Hichborn, 60 Mass. (6 
 Cush. ) 264. There is nothing in the case of Jones v. St. Onge, 67 
 Wis. 520, which in any way changes the rule laid down in the 
 cases above cited in this court. 
 
 The judgment of the county court is affirmed. 
 
 WEBBER V. BOLTE. 
 SI Michigan 113, 16 N. W. 257. (1883) 
 
 Garnishment of Builder in Suit Against Contractor — Contingent Debts, 
 Under Statute IVIal^ing Garnishee Liable for — Lapse of 
 Proceedings by Delay — Amendment. 
 
 Garnishment. Plaintiff brings error. Reversed. 
 
 A. A. Ellis, for appellants. 
 
 Mitchell, Bell & McGarry, for appellees. 
 
 The Court by Cooley, J. Two of the questions which were 
 argued in [*I44] this case seem to us to require no discussion, 
 and we simply announce our conclusions. 
 
 1. The court should not have dismissed the case against the 
 garnishees. The ground of the dismissal was delay in the pro- 
 ceedings. The case was begun September 16, 1881, and was being 
 tried in December, 1882, when the trial judge on his own motion 
 dismissed it, relying upon Blake v. Hubbard 45 Mich, i, for his 
 authority. The defense raised no question of laches, and it is 
 shown that jury trial had been demanded, and it could not have 
 been tried at the preceding August term because no jury was suro- 
 moned for that term. 
 
 2. The plaintiffs should have been allowed to amend the pro- 
 ceedings against the principal defendant so as to show his name in 
 full. He had been sued upon promissory notes in the name by 
 which he signed Aem, J. V. Consaul. The plaintiffs proposed to 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 391 
 
 amend by substituting Jacob for J. No question of identity was 
 made, and the amendment should have been permitted at any time 
 when it was found important. 
 
 3. Upon the main question we think both parties have been 
 laboring under some misapprehension. Consaul had contracted 
 with defendants for the erection of a church building which was 
 to be completed November i, 1881. The contract price was $8563. 
 Payments were to be made as the work progressed, to the amount 
 of ninety per cent, of the estimates, and the balance after comple- 
 tion. A forfeiture was agreed upon in the event that the work 
 was not done by the time stipulated. When the suit in garnish- 
 ment was begun defendants had made large payments, and they 
 insist that nothing was then due from them to Consaul. Plaintiffs 
 dispute this, but they claim that whether that was so or not, they 
 had a right to hold the defendants for anything that might subse- 
 quently become owing to Consaul for work done by him under the 
 contract. This claim is made under an amendment to the garnish- 
 ment statute, which provides that the garnishee shall "be liable on 
 any contingent right or claim against him in favor of the principal 
 defendant." [*/J5] Public Acts 1879, p. 270. Consaul's right, 
 it is said, was contingent on his performing his contract; so that 
 the case is within the very words of the statute. 
 
 The case may seem to be within the words of the statute, but 
 it is not within its intent or reason. To permit garnishment upon 
 such claims would be a most unwarrantable interference with the 
 contracts of third parties, and must in many cases deprive them of 
 substantial rights. It would be especially mischievous in the case 
 of building contracts ; for in a very large proportion of all cases 
 of such contracts, the means for their fulfillment must be obtained 
 from payments on the estimates ; and if these can be garnished in 
 advance, performance would be rendered impossible. This would 
 be a great hardship to the debtor, but it would be quite as much so 
 to his employer, who might have his arrangements broken up and 
 serious injury inflicted without on his part any fault whatever. 
 
 No doubt the employer has a claim in such a case that the 
 builder shall perform his contract : but the contingency on which 
 money is to be payable is one depending on the subsequent earning 
 
392 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 of money. It is therefore a contingency depending on the will 
 and ability of the debtor to earn money ; a will which it may gen- 
 erally be assumed will not be exerted where earning is not to be 
 followed by enjoyment. If there is a contingent claim here, so 
 there is when a laborer hires out for a year to be paid at the end of 
 the year; and his creditor may garnish the claim as soon as the 
 hiring takes place. It would be a safe assumption that very little 
 labor would be done under the hiring after the claim was gar- 
 nished. 
 
 Whatever, if anything, was due at the time the process was 
 served in this case, the plaintiffs are entitled to reach. The ten 
 per cent, kept back as security for final performance might per- 
 haps be considered a sum already contingently earned; but no 
 question upon that can arise in this case, as it was conceded that 
 Consaul did not complete his contract. The question of fact, then, 
 is narrowed to this : whether the ninety per cent, to which Consaul 
 was entitled [*Jid] on the estimates, exceeded at the time this 
 case was begun the amount which had been paid to him up to that 
 time. Upon that question the parties are entitled to produce their 
 evidence. 
 
 The judgment must be reversed with costs and a new trial 
 ordered. 
 
 LEHMANN v. FARWELL. 
 95 Wisconsin 185, 70 N. W. 170, 37 Lawyer's Rep. An. 333. (1897) 
 
 Garnishment of Tortfeasor — Effect of Verdict in Action for the Tort^ 
 When Tortfeasor Chargeable. 
 
 Garnishment by Henrietta Lehmann against the Milwaukee 
 Street Ry. Co. as debtor of Hubert Deuster, principal defendant. 
 John Farwell & Co., Sweet, Dempster & Co., and defendant's wife, 
 Caroline A. Deuster, intervene in the garnishment suit as claim- 
 ants of the fund paid into court by the garnishee. From a judg- 
 ment giving Caroline A. Deuster $622, and Farwell & Co. the 
 remainder, H. Lehmann, C. A. Deuster and Farwell & Co. appeal. 
 Affirmed. 
 
 The liability of the garnishee was for a negligent injury to the 
 person of the principal defendant, and at the time plaintiff's gar- 
 nishment was served, Deuster has sued and verdict had been re- 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 393 
 
 turned in his favor against the M. S. Ry. Co. for $1,500 for said 
 injury, but no judgment had yet been entered thereon. Judgment 
 had been entered when Farwell & Co.'s garnishment was served. 
 Sweet, Dempster & Co.'s garnishment was served still later. 
 Deuster's wife claimed by assignment. 
 
 Sylvester, Scheiber, Riley & Orth, for plaintifif. 
 
 Julius Roehr, for Caroline A. Deuster. 
 
 Haring & Frost, for Farwell & Co. 
 
 The Court by Winsloiv, J. * * * The seccjnd question is 
 whether a mere verdict in a purely tort action creates a liability 
 which can be garnished. The garnishee is not liable unless at the 
 time of the service of process his liability to the principal defendant 
 is absolute. R. S. sec. 2768 ; Vollmer v. C. & N. W. R. Co. 86 
 Wis. 305. The question ofliability or not is fixed at the time of 
 the service of process, and it must then be absolute, though per- 
 haps payable subsequently. If, however, the liability is contingent 
 on a future, uncertain event, it is not subject to garnishment. 
 Edwards v. Roepke, 74 Wis. 571 ; Dowling v. Lancashire Ins. Co. 
 89 Wis. 96. A mere claim for personal injuries is not the subject 
 of garnishment. St. Joseph Mfg. Co. v. Miller, 69 Wis. 389. The 
 verdict does not turn it into a debt, nor into an absolute liability. 
 That must be done, if at all, by the judgment. No matter how 
 long a verdict remained on the records of the court, no action could 
 ever be maintained upon it. Thayer v. Southwick, 74 Mass. (8 
 Gray), [*ip/] 229; Rood, Garnishment, § 152. The case of Jones 
 V. St. Onge, 67 Wis. 520, is claimed to support the contrary doc- 
 trine. While there may be language in the opinion in that case 
 which would tend to support the theory that a mere verdict 
 in a tort action is subject to garnishment, the case itself was 
 evidently rightly decided upon another ground. In that case the 
 garnishee had been sued in replevin for certain logs by the main 
 defendant, and the verdict rendered was that St. Onge, the main 
 defendant, was the owner of the logs, and that the garnishee un- 
 lawfully withheld possession of them, and fixed their value. After 
 verdict and before judgment, the garnishment papers were served. 
 It was plainly a proper case for garnishment, because the garnishee 
 had property of the main defendant in his hands, or was indebted 
 
394 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 to him therefor, at the time process was issued. In fact, the verdict 
 neither helped nor hindered the liability of the garnishee. He 
 would have been liable had no suit been pending at all, because he 
 had property of the main defendant in his hands at the time the 
 garnishee process was served, or was indebted to the main defend- 
 ant to the amount of the value of such property. So far as the St. 
 Onge Case seems to justify the doctrine that a mere verdict in an 
 action to recover damages for personal injuries is the subject of 
 garnishment, we cannot follow it. It follows that the plaintiff's 
 garnishment must fail, because she garnished after verdict and 
 before judgment, and the Farwell & Co. process becomes the first 
 lien upon the moneys in court after the claim of Mrs. Deuster is 
 paid. These were the conclusions reached by the court below. 
 
 Judgment affirmed. 
 
 JONES'S ADM'R v. CREWS. 
 64 Alabama 368. (1879) 
 
 Garnishment — Demands Payable in Kind — Test of Garnisliee's Lia- 
 bility as Debtor. 
 
 Garnishment by James H. Perdue, as administrator of Joseph 
 A. Jones, upon a decree in chancery in favor of said J. A. Jones, 
 deceased, against Sarah J. Jones, the garnishment process being 
 against C. Madison Crews. From a decree discharging the gar- 
 nishee complainant appeals. Affirmed. 
 
 The Court by Stone, /. * * * Garnishment is a proceeding 
 of purely statutory creation, unknown to the common law; and 
 while we are inclined to construe it favorably, as highly remedial 
 and beneficial, we have no power to originate machinery, or proc- 
 ess, by which to adapt it to conditions, which its statutory provi- 
 sions are not broad enough to cover. The court having power only 
 to render an unconditidnal money judgment against the garnishee, 
 or to condemn personal chattels in his hands, it early became a 
 question, what description of debt or liability would [*J7^] author- 
 ize a personal money judgment against the garnishee. It was set- 
 tled, that only such debts as would maintain debt, or indebitatus 
 assumpsit, if sued on by the defendant, could be the subject of 
 such condemnation and personal judgment. * * * [*57J] * ■" * 
 
 In the present case, the garnishee was summoned, and filed 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 395 
 
 liis answer in October, 1878. He admitted he had executed to the 
 defendant, Jones, his two promises in writing, one for the pay- 
 ment of four bales of cotton, of certain class and weight, October 
 15th, 1879, and the other for the payment of six bales, October 
 iSth, 1880. At the October term of the [*3^4] court, 1878, the 
 ■chancellor discharged the garnishee on his answer. It will be ob- 
 served that, under this contract, Crews, the garnishee, made no 
 promise to pay money. Neither was it a promise to pay a sum 
 ■of money, which might be discharged by the delivery of cotton. 
 It was a simple promise to deliver and pay cotton. When 
 the garnishment was sued out and served, and when the an- 
 swer of the garnishee was filed, it could not be known that the 
 liability from Crews to Jones would ever become a money debt. 
 "We cannot indulge the presumption that Crews would violate his 
 contract, and fail to deliver the cotton. The court had no power 
 to change the obligation to deliver cotton, into a promise to pay 
 
 money. * * * 
 
 The decree of the chancellor is affirmed. 
 
 Some statutes are so broad that the garnishee may be charged for 
 •demands not payable in money, but the judgment can be only that 
 he pay to the sheriff having the writ against him what he had cou- 
 "tracted to furnish the defendant and at the same time and place named 
 In the contract. Stadler v. Parmlee, 14 Iowa 175. See also Drake, 
 Attach. §550; Rood, Garnish. §§115-117. 
 
 THOMPSON V. GAINESVILLE NATIONAL BANK. 
 66 Texas 156, 18 S. W. 3S0. (1886) 
 
 Garnishment — Garnishee's Liability on Debts Evidenced by Commercial 
 
 Paper — Effect of Renewal or Maturity in Hands of 
 
 Defendant After Garnishment. 
 
 Garnishment. Garnishee appeals. Affirmed. 
 
 Potter & Smith, for appellant. 
 
 Stuart & Bailey, for appellee. 
 
 The Court by Willie, C.I. The Gainesville National Bank ob- 
 tained a judgment against A. J. Addington, and on June 20, 1885, 
 had a writ of garnishment sued out thereon, and served upon the 
 appellant, Thompson. On November 2, 1885, Thompson filed his 
 -answer denying any indebtedness to Addington, or having any 
 effects of his in possession, either at the date of serving the writ 
 •or of making the answer. This answer was controverted by the 
 
396 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 bank on the ground that on July 12, 1884, Thompson executed a 
 note to Addington, payable twelve months after date, and that this 
 note at the time the writ was served was held as collateral by one 
 Smith to secure a debt due to Smith from Addington. The terms 
 of the note as stated in the contesting affidavit showed that it ma- 
 tured previous to the filing of the answer, though it was not due 
 when the writ of garnishment was served. 
 
 The proof before the judge who tried the cause,without a jury, 
 was conflicting in some important respects bearing upon the liabil- 
 ity of the note tothe garnishment proceeding. The judge subjected 
 the note to the garnishment. In passing upon his judgment we 
 must, in case of conflict of evidence, treat as true the testimony to 
 which he must have given credence in making up his conclusions. 
 The case before us, therefore, is that of a garnishee indebted to the 
 judgment defendant upon a negotiable note, not due when the writ 
 was served, but maturing before answer filed, and paid before that 
 time, but after maturity, to the judgment defendant, he being at 
 the time still owner of the note. 
 
 The law is well settled that the maker of an overdue note can 
 be garnished for a debt due the owner. The note cannot be as- 
 signed to an innocent holder, free from such defences as the maker 
 could set up in a suit against him by the assignee. Garnishment 
 at suit of the assignor's creditor would be a good defence, and 
 hence the maker is fully protected when compelled by judgment 
 to pay the amount of the note to the plaintiff in garnishment. It 
 seems settled, too, by the weight of authority that if the note is due 
 and owned by the payee at the time judgment in garnishment is 
 rendered, the maker is liable to such judgment, though, at the time 
 he was served, the note had not matured. Drake on Attach., §§ 
 587, 588. 
 
 The authorities recognize the right to charge the maker after 
 the note matures, provided, that at the date of serving the writ, the 
 note 1*158] was the property of the payee. Bassett v. Garthwaite, 
 22 Tex., 230, and other cases cited in note to § 623, Sayles' 
 Treatise. 
 
 This is, in effect, to require the maker to answer as to his in- 
 debtedness upon a note not due, so that the plaintifif may charge 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 397 
 
 him in garnishment by showing that it belonged to the defendant 
 when service was made, and had since matured, and was still the 
 property of the defendant. The law exempts the maker from a 
 judgment in garnishment whilst the note is current, because he 
 would not otherwise be protected by the judgment from his lia- 
 bility to the holder. But, if he is fully protected by the judgment, 
 there is no reason why one should not be rendered against him, 
 though the note was not due when the writ was served. 
 
 Protection being secured to the maker, the reason of the law 
 for not subjecting him to garnishment has ceased, and the plaintiff 
 should be entitled to the benefit of his indebtedness to the defend- 
 ant. He may not be able to secure this benefit without proceed- 
 ing before the note became due. It is this that lays the foundation 
 for a judgment after the maturity of the note, and to obtain this 
 judgment he must be allowed to have an answer as to the condi- 
 tion of the indebtedness at the date of the service, to prove, if he 
 can, that it was a debt upon a note, though negotiable and current, 
 and that, at the time of service, the note belonged to the defendant. 
 
 This does not interfere with the maker's rights in the least, 
 for, if the note thereafter and before maturity, has been assigned, 
 the judgment cannot be rendered. The burden of proof is on the 
 plaintiff to show that the payee has not transferred the note before 
 maturity, otherwise the garnishee must be discharged. As to 
 what effect a transfer after maturity would have, we need not now 
 determine. 
 
 But the protection afforded the maker of the note is against 
 a transfer by the payee to other parties. It is only in this event 
 that he can be endangered by a judgment in garnishment. No 
 other disposition of the instrument before judgment subjects him 
 to a suit by any other person than the payee, and to a suit by him 
 the judgment in garnishment is a full defence. Against the 
 maker's own collusion with the payee to defeat the plaintiff's right 
 to the judgment, the law does not protect him. 
 
 If, as in this case, whilst the note is still owned by the payee, 
 and overdue, and not liable to pass to an innocent holder, the maker 
 settles it with the payee, there is no reason why he should be pro- 
 jected against a judgment in the garnishment proceedings. He 
 
398 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 has voluntarily paid a debt due from him to the defendant, which 
 the latter could not have recovered. [*-Z"5p] 
 
 After a judgment against the garnishee in favor of the plain- 
 tiff in garnishment, with full notice that the plaintiff had laid the 
 foundation for such a judgment, he has paid the note, not for his 
 own protection, but to enable the defendant to avoid the payment 
 of a debt, which the plaintiff was entitled to enforce against him, 
 and which he might have enforced, but for this collusion between 
 the defendant and the garnishee. 
 
 It being perfectly apparent that none of the reasons why the 
 maker of negotiable paper, current at the date of serving the writ 
 of garnishment, should be exempt from the proceedings are ap- 
 plicable to the present case, and that neither the maker nor any 
 innocent holder of the paper are in the least prejudiced by the gar- 
 nishment, we are of opinion that the case presented was a proper 
 one for a judgment against the garnishee. 
 
 The same conclusions have been reached in the courts of one 
 other state, and we are pointed to no decisions to the contrary. 
 Leslie v. Merrill, 58 Ala. 322. Whether the same rule would hold 
 if the note had been paid before maturity we are not called upon 
 to decide in the present appeal. 
 
 We are of opinion that the judgment below is correct, and it 
 is affirmed. 
 
 Aflirmed. 
 MOORE V. DAVIS. 
 
 57 Michigan 251, 23 N. W. 800. (1885) 
 
 Garnishment — Effect of Orders, Checks, Etc., as Assignments of Fund — 
 Rule and Exceptions. 
 
 Garnishment by Edward C. Moore against Alex. R. and Wm. 
 F. Linn as debtors of the principal defendant, John C. Davis. The 
 First National Bank of Madison, Indiana, intervened as claimant. 
 From a judgment for plaintiff, claimant brings error. Reversed. 
 
 The case was tried below before the court without a jury ; and 
 the court found as facts, that the garnishees confessed liability in 
 the sum of $139.65 for goods purchased, and that before the gar- 
 nishment was served the claimant in the regular course of its busi- 
 ness, had received from Davis a draft for the amount with a copy 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 399 
 
 of the account annexed and paid him for same less the regular dis- 
 count. 
 
 Wm. J. Gray, for appellant. 
 
 Geo. W. Bates, for appellee. 
 
 The Court by Cooley, C.J. * * *The controversy, it will be 
 seen, turns upon the question [*-?55] whether the draft by Davis 
 on the Linns operated as an assignment of the demand. It was 
 received and discounted by the claimant before the garnishment 
 summons was served, and the Linns were notified of the facts be- 
 fore they answered. If, therefore, the draft transferred the de- 
 mand to the bank, the judgment is erroneous. 
 
 In the recent case of Grammel v. Carmer, 55 Mich. 201, the 
 question whether a draft was an assignment of the fund in the 
 drawee's hands, to the extent of the sum drawn for, was consid- 
 ered and decided in the negative. That, however, was the case 
 of a banker's draft, and it was not drawn for the whole fund in 
 the drawee's hands. Many cases were cited in the opinion filed 
 in that case, and the following, not then cited, are to the same 
 effect : Shand v. Dii BuLtson, L. R. 18 Eq. 283 ; Lewis v. Traders' 
 Bank, 30 Minn. 134; Jones v. Pacific Wood &c. Co., 13 Nev. 359; 
 Rosenthal v. Mastin Bank, 17 Blatchf. 318, Fed. Cas. No. 12063; 
 Dolsen v. Brown, 13 La. Ann. 551 ; Sands v. Matthezvs, 27 Ala. 
 
 399- 
 
 But this case differs from Grammel v. Carmer in the fact that 
 the draft now in question was drawn for the exact amount of a 
 sum claimed to be due from the drawees to the drawer for a bill 
 of merchandise, and that the account was attached to the draft, 
 evidently for the purpose of being sent forward with it. When 
 thus sent forward, it would explain to the drawees the account on 
 which it was drawn; but it must also have been understood to 
 serve a further purpose, namely, to be evidence in the hands of 
 the drawees that the account was paid when the draft was taken 
 up by them. There could be no sufficient reason for attaching it 
 at all, unless it was understood that payment of the draft would 
 be payment of the account as well. 
 
 By the general commercial law, as was said in Grammel v. 
 Carmer, the purchaser of a draft is supposed to take it in reliance 
 
400 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 upon the responsibility of the drawer, and he has no other rehance 
 until it is accepted. This is the general rule. But if the draft is 
 for the whole amount of a fund, the draft may, in connection with 
 other circumstances, tend to show an intent that it should oper- 
 ate as an assignment. First [*2^6] Nat. Bank of Canton v. D. S. 
 W. Ry. Co., 52 Iowa, 378. And whereas,, in this case, the draft 
 is for the amount of an account, and the account is attached, the 
 purpose to assign appears on the papers themselves, and they need 
 no support from collateral circumstances. The payee, then, in 
 ■taking the draft has a right to understand that, in addition to the 
 responsibility of the drawer, he has such security for payment as 
 may be supplied by the account, and that he may collect the ac- 
 count for the satisfaction of the draft. The drawer, by the papers, 
 in effect, says to the drawee : "This is my bill against you, which 
 I have sold to the payee by this draft, and you are requested to 
 make payment of it to him." This is what a business man would 
 have a right to understand from them. The draft with the bill 
 thus attached is not an ordinary bill of exchange, but it is an order 
 that the debtor shall pay the amount of his debt to the person to 
 whom it is delivered. The fact that the draft is negotiable in 
 form is of no importance. It does not at all tend to rebut the evi- 
 dence of intent on the part of the creditor to assign the demand. 
 
 The judgment must be reversed. 
 
 REYNOLDS v. HAINES. 
 83 Iowa 342, 49 N. W. 851, 32 Am. St. 311, 13 L. R. A. 719. (1891) 
 
 Garnishment — Proceeds of Exempt Property, Liability to Process — 
 Cause of Change, Importance. 
 
 Garnishment by Reynolds & Churchill seeking to charge the 
 Capital Ins. Co. as garnishee of G. W. Haines, principal defend- 
 ant. From judgment discharging the garnishee plaintiffs appeal. 
 Affirmed. 
 
 G. H. Phillips and Ainszvorth &• Hobson, for appellants. 
 
 H. W. Clements, for appellee. 
 
 The Court by Beck, C.I. I. The plaintiffs caused process of 
 garnishment to be issued against the Capital Insurance Company 
 lupon a judgment against the defendant, [*343] claiming that the 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 401 
 
 insurance company is a debtor of the defendant upon a policy 
 issued to him upon which there had been a loss of the property 
 insured. A motion to dismiss the proceeding was sustained upon 
 the grounds, which were not disputed, that the property insured 
 was exempt from execution, being books, instruments, etc., used 
 by the defendant, who was a physician and surgeon, in the prac- 
 tice of his profession. 
 
 II. The question presented for decision by the record is this : 
 Are the avails of insurance upon personal property which is ex- 
 empt under the statute from debts of the assured also exempt? 
 The' statute, Code, § 3072, declares that, "If the debtor is a resi- 
 dent of this state, and is the head of a family, he may hold exempt 
 from execution" certain personal property, which includes the 
 books, instruments, etc., of a physician, the property covered by 
 the policy of insurance in this case. There is no provision as to 
 the exemption or liability of the proceeds or avails of such prop- 
 erty when disposed of by sale or otherwise. 
 
 III. The purpose of the statute is to secure to the debtor who 
 is the head of the family — a physician and surgeon in this case — 
 the instruments, books, and other articles which enable him to 
 practice his profession. Its purpose is to secure the necessaries 
 of life — food, raiment and shelter — to families who are dependent 
 upon the heads thereof, by securing to them the instruments and 
 means by the use of which they are enabled to support their fami- 
 lies. The exemption is plainly for the benefit of the families of 
 debtors, for those having no family can claim no exemption. The 
 statute must be liberally construed, to carry out its purpose and 
 spirit. Bevan v. Hayden, 13 Iowa, 122; Davis v. Humphrey, 22 
 Iowa, 138; Kaiser v. Seaton, 62 Iowa, 463. The debtor in the 
 case before us was authorized, under the statute, to hold the 
 property in question exempt from debts, if it were used for the 
 purpose of his profession. [*344\ It is plain that the use for 
 which the property was kept determined the question of its ex- 
 emption. The books, instruments, etc., of the physician and sur- 
 geon may be kept subject to the authority to change them, by sale 
 or otherwise, in order to procure those of better character or im- 
 proved construction. It is plain that the physician may sell his 
 
402 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 books, and replace them by better ones. Such sale is a proper 
 use of his books and instruments in his profession. Another 
 proper use of his books and instruments is their preservation from 
 injury and destruction. He may insure them, to protect himself 
 and family from loss from fire. The fact that they were insured 
 would not make them subject to his debts. If they are destroyed 
 by fire, the indemnity secured by insurance stands in the place 
 of the books. It is intended to preserve the physician's library 
 by securing means for its restoration after it is lost by fire. 
 Surely that indemnity which is the indebtedness of the insurance 
 company, or the money paid by it, stands in the place of the 
 library, and ought to be, as it is, exempt from execution. The 
 money due on the policy stands in the place of the property de- 
 stroyed, and this must be true whether the money takes the place 
 of the property by contract, or is acquired in invitum by proceed- 
 ings against the owner. 
 
 It is plain that a trespasser, by appropriating the property 
 and converting it to his own use, cannot make it subject to the 
 payment of the owner's debts by holding the value of the property 
 the measure of the debtor's damages for the trespass, subject to 
 garnishment by the creditors. If he could do this, it would be a 
 convenient method to defeat the exemptions of the statute. As 
 we before remarked, the object of the statute is to secure to the 
 family the benefit of certain property. These benefits cannot be 
 enjoyed unless the debtor have the unrestricted use and control 
 of the property free from liability for debts as long as it is owned 
 [*345] arid used by him. When it is used for other purposes than 
 the support of the family, it becomes liable for debts. But the 
 change of the property into money will not indicate an immediate 
 abandonment of the claim of exemption to the money on the 
 ground of a purpose to invest it in like or other exempt property. 
 Until an opportunity exists to make such investment, which is not 
 a change of articles of exempt property, the debtor ought not to 
 be presumed to abandon his claim. The debtor, as we have seen, 
 has the authority to change the articles of exempt property by sale 
 and purchase, exchange or otherwise. He cannot be presumed 
 to have abandoned his right to this authority until he has had an 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 403 
 
 opportunity to exercise it. The creditor cannot complain of its 
 exercise. He is defeated of no right thereby. The property is 
 held free of his debt, and he is not prejudiced by the change to 
 other like property. These doctrines and conclusions find sup- 
 port in the following decisions of this court: Kaiser v. Seaton, 
 62 Iowa, 463 ; Mudge v. Lanning, 68 Iowa, 641. See, also, cases 
 cited in Kaiser v. Seaton, supra, and the following : Evans v. St. 
 Paul Harvester Works, 63 Iowa, 204; Brainard v. Simmons, 67 
 Iowa, 646 ; Leavitt v. Metcalf, 2 Vt. 342 ; Mulliken v. Winter, 63 
 Ky. (2 Duv.) 256; Tillotson v. Wolcott, 48 N. Y. 188. 
 
 Counsel for the plaintiffs cite Wooster v. Page, 54 N. H. 125. 
 It is not in harmony with our conclusions. We think that the rea- 
 soning upon which it is based is not sound. Other cases cited by 
 the same counsel are not in conflict with our conclusions. They 
 are to the effect that sales of exempt property, with no purpose 
 to reinvest the avails in other like property, or to exchange the 
 articles of exempted property, or are cases involving the exemp- 
 tion of pension money, and some other cases involving like ques- 
 tions, none of which are in conflict with our conclusions in this 
 case. 
 
 We reach the conclusion that the judgment of the district 
 court ought to be affirmed. 
 
 This decision is believed to be in accord with the decisions in 
 every state except New Hampshire and Mississippi. See Smith v. 
 Ratcliff, 66 Miss. 683. For extended review of the decisions see Rood, 
 Garnish. §§ 96--99. 
 
 HEWITT V. WAGAR LUMBER CO. 
 38 Michigan 701. (1878) 
 
 Garnishment — Burden of Proof — Admissions — Testimony by Officer ot 
 Garnishee Corporation. 
 
 Garnishment by Hewitt against Wagar Lumber Co. as debtor 
 of Myers, the principal defendant. From judgment discharging 
 the garnishee plaintiff brings error. Affirmed. 
 
 Mitchell & Pratt, for appellant. 
 
 ]ohn Toan and Wells & Moore, for respondent. 
 
 The Court by Graves, J. * * * Waiving all questions of 
 jurisdiction and likewise [*705] all objections against the correct- 
 
404 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 ness of the plaintiff's earlier proceedings, it is still left to in- 
 quire whether the record shows that the plaintiff made out any 
 case on the facts fairly entitled to be submitted to the jury. 
 Because if it does not, the result cannot be disturbed. 
 
 It is a general rule and one applicable to this case that where- 
 ever in consequence of the nature of the subject it is a matter 
 of absolute indifference whether a given state of facts does or does 
 not exist, the party who grounds his claim or defense upon its 
 existence must remove that indifference in order to succeed ; and 
 meanwhile the opposite party may safely remain passive and insist 
 upon a determination in his own favor if that is not done. And 
 the party upon whom it rests to support the affirmative must main- 
 tain it substantially. "It is not enough for him to make out a bal- 
 anced case and then leave it to a jury to guess at the truth." Bron- 
 son, C. J. in Bogert v. Morse, i Comt., 377. And if the evidence is 
 consistent as much with some other state of facts as that required 
 to sustain the particular proposition, whether express 'or tacit, it 
 proves neither, and hence is ineffective. Jackson v. Metropolitan 
 Railway Co., L. R. 2 C. P. Div., 125. 
 
 The plaintiff charged against the corporation that at the very 
 time when the notice was left with the president on March 30, 
 1877, it was indebted to Myers, and whether it was so or not 
 depended upon facts which were as likely to be one way as the 
 other, and it was incumbent on the plaintiff to prove that the facts 
 were as the substantiation of his claim required they should be. 
 He recognized what his position involved and attempted to prove 
 ;his allegation. 
 
 The only witness called was the president of the corporation 
 :and he swore that Myers had been executing a lumber job in the 
 woods for the corporation amounting to some $1,600 or $1,800; 
 :that it had not been accepted but witness inferred it had been com- 
 pleted because [*70(5] Myers had "come out of the woods." Per- 
 :formance of the job was not proved. The witness stated there 
 ;had been no settlement, but the entries in the corporation books 
 vindicated a balance of $500 or $600 still unpaid ; that he had no 
 knowledge whether the corporation owed anything to Myers 
 except as gathered from the apparent state of accounts in the 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 405 
 
 books ; that prior to the service of the notice, but on the same day, 
 one Alderman informed witness that Myers had assigned to him 
 the demand against the corporation, and that Alderman at the same 
 time exhibited to witness a writing apparently by Myers, and or- 
 dering the corporation to pay Alderman or bearer whatever was 
 due Myers for lumbering. * * * Now if we consider the facts to- 
 gether as we must, they do not result in showing, nor fairly conduce 
 to show as against the corporation the matters indispensably neces- 
 sary to make out and support plaintiff's claim. If the witness had 
 been garnishee and had made similar explanations concerning his 
 own affairs, there would be room for some other considerations. 
 But in order to give to his statements the sense and value they 
 merit as matter of law, his relation to the transaction, to the parties 
 and to the case must be kept in mind. The entire effect of his rela- 
 tion as a showing of fact against the corporation is that Myers 
 was doing a large job for the corporation and that an inspection 
 of the entries in account in the corporation books indicated that 
 $500 or $600 of the contract price was still unpaid. As to whether 
 this balance had become as yet an actual debt [*7o^] at all against 
 the corporation, or if it had, whether it still belonged to Myers, 
 was left indeterminate and without means to decide. As the facts 
 in the record do not import that the plaintiff made a case for 'the 
 jury, no error he can complain of is shown. My brethren concur 
 in the view here taken. * * * 
 
 The judgment must be affirmed with costs. 
 
 SCOTT V. ROHMAN. 
 43 Nebraska 618, 62 N. W. 46. (1895) 
 
 Garnishment of Judgment Debtor — In What Court — Aid of Equity — 
 
 Priority. 
 
 Bill in chancery in the Lancaster district court by Archie A. 
 Scott against Charles Rohman and others, being all the interested 
 persons, to determine the rights of the respective parties to money 
 paid into said court by John Fitzgerald in satisfaction of the judg- 
 ment theretofore rendered against him in said court in an action 
 on account wherein John Lanham was plaintiff and said Fitzger- 
 ald defendant. From the decree of the court below complainant 
 appeals. Affirmed. 
 
406 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 Scott's claim is based on a garnishment in the county court of 
 Lancaster against said Fitzgerald on a judgment in favor of said 
 Scott against said Lanham on which an execution had been re- 
 turned not satisfied. The garnishment was issued out of the 
 county court and served after verdict returned against Fitzgerald 
 in the district court in Lanham v. Fitzgerald, but before the judg- 
 ment was entered. Upon garnishee's answer setting up these 
 facts, and the entry of judgment in Lanham v. Fitzgerald, judg- 
 ment was rendered against him ordering him to pay into said 
 county court the amount of Scott's judgment, which was less than 
 the amount of the judgment in Lanham v. Fitzgerald. Instead 
 of doing so, the garnishee paid the whole sum into the district 
 court, and thereupon Scott filed this bill. Rohman claims as as- 
 signee of Lanham under an assignment executed after the gar- 
 nishment was served. 
 
 A. G. Greenlee, for appellant. 
 
 Webster, Rose & Fisherdick, Daniel F. Osgood, Abbott & 
 Abbott, and Thomas Ryan, contra. 
 
 The Court by Norval, C.J. * * * The record discloses that 
 the indebtedness of Fitzgerald to Lanham had been reduced to 
 judgment. The first question therefore presented is whether a 
 judgment debtor can be garnished. Section 212 of the Code pro- 
 vides : "An order of attachment binds the property attached from 
 the time of service, and the garnishee shall be liable to the plaintiff 
 in attachment for all property, moneys, and credits in his hands, 
 or due from him to the defendant, from the time he is served with 
 the written notice." * * * [*628] * * * It is very evident that the 
 foregoing provisions are sufficiently broad to cover debts reduced 
 to judgment, and that a judgment debtor is liable to the process 
 of garnishment in a suit against the judgment creditor. The stat- 
 ute is susceptible of no other reasonable construction. It does not 
 exempt any credit of any kind whatever. The decided weight of 
 the decisions in this country lays down the broad doctrine that a 
 judgment debtor may be garnished, and we so hold the law to be 
 in this state. Osborn v. Cloud, 23 la. 105 ; Gamble v. Central R. 
 & B. Co., 80 Ga. 595 ; Wood v. Lake, 13 Wis. 84 ; Keith v. Harris, 
 9 Kan. 387 ; Skipper v. Foster, 29 Ala. 330 ; 8 Am. & Eng. Ency. 
 Law, 1 169; Drake, Attachment (7th ed.), § 622. 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 407 
 
 The question presented by the record to be determined is 
 whether a judgment debtor in the district court of this state is lia- 
 ble to garnishment proceedings issued out of the county court. 
 There is an irreconcilable conflict in the authorities bearing upon 
 the subject. Some decisions are to be found in the books which 
 assert that a judgment debtor in one court may be garnished on 
 process issued out of another court. Luton v. Hoehn, 72 111. 81 ; 
 Allen V. Watt, 79 111. 284; Jones v. New York & E. R. Co., 1 
 Grant's Cases (Pa.), 457; Gager v. Watson, 11 Conn., 168. The 
 majority of the cases,and the more recent decisions, sustain [*(5^p] 
 the doctrine that a debt reduced to a judgment is liable to garnish- 
 ment when the process of garnishment issues from the same court, 
 but not otherwise. Drake, Attachment, § 625 ; Waples, Attach- 
 ment & Garnishment (ist ed.), 596; Wallace v. McConnell, 38 U. 
 S. (13 Pet.) 136; Thomas v. Wooldridge, 2 Wood 667, Fed. Cas. 
 No. 13, 918; Henry v. Gold Park Mining Co., 15 Fed. Rep. 649, 5 
 McCreary (U. S.) 70; Franklin v. Ward, 3 Mason (U. S.) 136; 
 American Bank v. Snow, 9 R. I. 11; Burrill v. Letson, 2 Speers, 
 (S. Car.), 378; American Bank v. Rollins, 99 Mass. 313; Perkins 
 V. Guy, 2 Mont. 15. In Drake, Attachment, § 625, it is said: 
 "However strongly these reasons apply to the case of a garnish- 
 ment of the judgment debtor in the same court in which the judg- 
 ment was rendered, their force is lost when the judgment is in one 
 court and the garnishment in another. There a new question 
 springs up, growing out of the conflict of jurisdiction which at 
 once takes place. Upon what ground can one court assume to 
 nullify in this indirect manner the judgments of another ? Clearly, 
 the attempt would be absurd, especially where the two courts were 
 of different jurisdictions or existed under dififerent governments. 
 Take, for example, the case of a court of law attempting to arrest 
 the execution of a decree of a court of equity for the payment of 
 money, by garnishing the defendant ; or that of a state court so in- 
 terfering with a judgment of a federal court, or vice versa; it is 
 not to be supposed that, in either case, the court rendering the 
 judgment or decree would or should tolerate so violent an en- 
 croachment on its prerogatives and jurisdiction." * * * [630] 
 * * * In Michigan it has been held that a judgment recovered be- 
 
408 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 fore one justice of the peace is not subject to proceedings in gar- 
 nishment before another justice. Sievers v. Woodburn Sarven 
 Wheel Co., 43 Mich. 275 ; Noyes v. Foster, 48 Mich. 273 ; Custer 
 V. White, 49 Mich. 462. It {^631] has likewise been decided that 
 a judgment obtained in the circuit court of a state cannot be gar- 
 nished before a justice of the peace. Clodfelter v. Cox, 33 Tenn. 
 (i Sneed) 330. To allow a judgment to be garnished in a court 
 other than the one in which it was rendered would subject the 
 debtor to a double judgment on a single liability, and thereby sub- 
 ject him to the danger of being compelled to pay the debt twice. 
 Besides, it would permit one court to interfere with the due exe- 
 cution of process in another tribunal. We are unwilling to place 
 a construction upon the statutes that is liable to lead to such results. 
 Upon principle and authority we are constrained to hold that the 
 garnishment proceedings in the county court, in the case of Scott 
 V. Lanham, were void, and consequently created no lien upon the 
 fund in controversy. 
 
 In the brief of appellant it is said : "All opportunity for con- 
 flict of jurisdiction, or for injustice has been avoided by the pay- 
 ment of the entire amount of the Lanham judgment into the dis- 
 trict court, and the bringing of the equity proceedings in which all 
 parties interested are made defendants, where all the parties can 
 have their rights adjusted. The garnishee can be protected from 
 double payment and his judgment creditor compelled to satisfy the 
 judgment of record." This position might, and doubtless would, be 
 tenable were it not for the fact that Lanham, plaintiff's debtor, as- 
 signed his judgment against Fitzgerald to the defendant C. H. 
 Rohman, which assignment was filed in the district court of Lan- 
 caster county, according to the fifth finding of fact, on April 
 ID, 1893, several months prior to the institution of this equitable 
 action. Therefore, Lanham had no interest in the judgment or the 
 money paid into court when this action was commenced, and, as 
 we have already shown, the garnishment proceedings created no 
 lien upon the money in dispute. There is no room to doubt that 
 when a judgment has been assigned it is not liable thereafter to 
 garnishment at the suit of the creditor of the assignor. * * * 
 
 Aifirmed. 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 409' 
 
 HUDSON V. SAGINAW CIRCUIT JUDGE. 
 114 MicMgan 116, 72 N. W. 162, 47 L. R. A. 345. (1897) 
 
 Garnishment Against Officers of Courts — Liability of Property in Their 
 Possession to Process — Limitation of Exemption — 
 Power of Court to Waive Exemption. 
 
 Mandamus by Joseph L. Hudson, receiver of the Third 
 National Bank of Detroit, to compel Eugene Wilber, circuit judge 
 of Saginaw county, to vacate an order quashing a writ of garnish- 
 ment issued against Charles B. Gray and Edward Y. Swift, execu- 
 tors of the last will and testament of Aaron C. Fisher, deceased, as 
 garnishee defendants of John E. Nolan. 
 
 De Forest Paine, for relator. 
 
 William G. Gage, for respondent. 
 
 Hooker, J. Nolan brought an action against Aaron 
 C. Fisher in his lifetime, which culminated in a judgment 
 against his executors, the same being affirmed by this court in i ii 
 Mich. 56. Thereupon the relator garnished the executors, but the 
 circuit court dismissed the proceedings, after disclosure, upon the 
 ground that garnishment would not lie against executors. 
 
 It is a general rule that property in custody of the law is not 
 subject to attachment or garnishment. The law [*ZJ7] dees not 
 permit one court to assume control over the representative of an- 
 other court, or the property confided to his charge. By this it is 
 not meant that personal remedies against the individual may not be 
 sought, but that any proceeding in the nature of an action in rem, 
 whereby it is sought to reach the property which another court has 
 taken possession of,, is forbidden. Thus replevin from an officer 
 holding under order of the court of chancery is punishable as a 
 contempt. Even suits against a receiver in his representative 
 capacity are forbidden, though the court appointing the receiver 
 may, on cause shown, permit them. The probate court has not 
 even this power respecting its officers, who can only be sued in the 
 manner pointed out by statute, and a garnishee proceeding is not 
 included among statutory proceedings against executors and ad- 
 ministrators in Michigan, though it is in some states. 
 
 That administrators and executors are exempt from this pro- 
 cess is the general rule. In Rood, Garnishm., § 27, it is said : 
 
410 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 " 'When property or money is in custodia legis, the officer holding 
 it is the mere hand of the court. His possession is the possession 
 of the court. To interfere with his possession is to invade the 
 jurisdiction of the court itself. And an officer so situated is bound 
 by the orders and judgments of the court, whose mere agent he is, 
 and he can make no disposition of it without the consent of his own 
 court, express or implied.' In re Cunningham, g Cent. L. J. 208. 
 These principles have been applied in numerous cases to various 
 classes of legal custodians, and in accordance with them it has been 
 held that clerks of courts, trial justices, registers in chancery, mas- 
 ters in chancery, receivers, trustees appointed by a court of chan- 
 cery, assignees in bankruptcy, trustees for creditors under a gen- 
 eral assignment pursuant to insolvent laws, other trustees appointed 
 to dispose of property and apply the avails according to the orders 
 of the court, sheriffs, constables, and other ministerial officers, and 
 their bailees and assistants, justices of the peace, executors, admin- 
 istrators, and guardians, cannot be charged as garnishees by reason 
 of any property or money which they hold or any debts which they 
 owe merely as such officers." [*7i5] In his next section the 
 author says that : "In a few of the states, while these principles 
 are recognized as sound, they have been considered inapplicable to 
 certain of the cases above mentioned, either generally or in view of 
 the peculiar provisions of the statute governing the conduct of the 
 particular officer. Among these may be mentioned sheriffs and 
 constables, clerks in chancery courts, justices of the peace, admin- 
 istrators, and executors." 
 
 Among, the cases cited by the author is Hardesty v. Campbell. 
 29 Md. 533, where the decision rests upon the Code. In the Ala- 
 bama cases the question is not raised, and, though the jurisdiction 
 over an administrator seems conceded, it rests ui>on a statute,which 
 is not quoted. Against the few states, the author cites to the con- 
 trary cases involving administrators, from Massachusetts, Maine, 
 Arkansas, West Virginia, Rhode Island, Delaware, Vermont, Indi- 
 ana, and Missouri, to say nothing of a cloud of analogous cases 
 relating to other officers. 
 
 Mr. Shinn, in his treatise on Attachment and Garnishment 
 (§ 510), says: "In the absence of special statute, it was an undis- 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 411 
 
 puted rule of law that an executor or administrator could not, in 
 his oiScial capacity, be held liable as a garnishee at suit of a credi- 
 tor of the decedent or of one who was a legatee or distributee or 
 other creditor of the estate. He is not then considered to be a 
 'debtor.' Neither is he an agent, factor, attorney, or trustee of 
 such creditor, because he derives his authority from the law, and 
 is obliged to execute it according to law." * * * 
 
 He admits, however, that in many states this rule has been 
 changed by statute, and a long list of cases is given. It goes with- 
 out saying that decisions based upon a statutory right of garnish- 
 ment are not to be considered as authority for changing the gen- 
 eral rule, unless by analogy a similar construction should be in- 
 dulged. The author says of the administrator's liability, where 
 he may be garnished, that — 
 
 "In states permitting an executor or administrator to be made 
 a garnishee, he may be held as such whenever the person to whom 
 he is to pay the legacy or distributive share may maintain an action 
 at law against such executor or administrator. After a court has 
 ■decreed a distribution of the proceeds in the hands of the admin- 
 istrator, such administrator may be held as garnishee. Some stat- 
 utes permit an executor or administrator to be made a garnishee 
 during the pendency of the settlement of the estate, but no judg- 
 ment can be rendered against him until a settlement is made, un- 
 less he assents to the legacy or admits assets to pay the amount 
 ■claimed out of the distributive share. Until the distributive shares 
 are ascertained, they cannot be secured by garnishment. In other 
 words, when it is uncertain whether the administrator will have 
 a surplus in his hands or not, he cannot be held as garnishee." 
 2 Shinn, Attachm. § 511, and cases cited. 
 
 In 8 Am. & Eng. Enc. Law, 1 139, a paragraph denying the lia- 
 Ijility concludes as follows, after citing Brooks v. Cook, 8 Mass. 
 .246: "The court held that, as the administrator derived his au- 
 thority from the law, * * * he was not liable to process of this 
 Tcind, and such has been the almost uniform current of authority, 
 including cases as to executors as well." 
 
 The language of Mr. Rood, who is quoted in support of the 
 ■doctrine that "the great preponderance of modern authorities 
 
412 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 * * * holds that, when the purposes of the court have been fully 
 accomplished in respect to the particular funds, by a final decree 
 or order for payment of the same to the defendant by such officer, 
 or his becoming directly and absolutely accountable to the defend- 
 ant therefor without such order, such property or credit may be 
 reached by garnishing such officer" (Rood, Garnishm. § 32), if 
 approved, should not be applied to this case, for the probate court 
 is not shown to have made a decree or order for payment, nor have 
 the executors become directly and absolutely accountable to the 
 principal defendant. Such liability becomes fixed when distri-. 
 bution is ordered under §§ 5925 to 5931 of 2 Howell's Annotated 
 Statutes. It does not rest in the authority of other [*ii'o] tribu- 
 nals to determine the status of a fund in the custody of the probate 
 court. 
 
 It is said that in Cohnen v. Sweenie, 105 Mich. 643, this court 
 held that a receiver might be garnished with permission of the 
 court that appointed him. The exercise of discretion by a court 
 of chancery having jurisdiction of the fund is a very different 
 thing from the power of other courts to determine what shall be 
 done with it. That case does not rule this. I am unable to see the 
 propriety of holding that the liability or non-liability of an execu- 
 tor becomes a question of fact, dependent upon the quantity of 
 assets and ability of the executor to pay, to be tried by jury or 
 otherwise in as many courts as there are garnishing creditors, to- 
 the embarrassment of the settlement of estates, and the overthrow 
 of one of the best-settled rules of general application known to the 
 law. The writ is denied, with costs. 
 
 Montgomery and Moore, J J., concurred with Hooker, J. 
 
 Grant,!, {dissenting). * * * The executors filed a disclos- 
 ure, in which they admitted the judgment against them, and that 
 the money was in their hands ready to be paid to such persons as- 
 were legally entitled to receive it. The court quashed the proceed- 
 ings on the ground that a suit of garnishment would not lie against 
 an executor or administrator. 
 
 The court granted the order, evidently relying upon White v. 
 Ledyard, 48 Mich. 264. That case differs in its facts from this, 
 in that the garnishee defendant died without making disclosure. 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 413 
 
 and the cause was revived against his administrator, while in this 
 the original suit is directly [*ii'r] against the executors. The rea- 
 son for that decision is found in this statement : "When the cause 
 was revived against the administrator, he, as such, had neither the 
 requisite knowledge nor authority to make a disclosure binding 
 upon the estate." Clearly this statement does not apply to the 
 present case, where the liability of the garnishee executors to 
 Nolan is fixed by the judgment of the court. * * * Under the dis- 
 closure in this case there is no embarrassment of the executors or 
 delay in settling the estate. The right of Mr. Nolan is fixed by 
 the judgment, and the executors have the money with which to pay 
 it. Courts are not uniform in their holdings upon this question. 
 There are those which hold that when the rights of all parties have 
 become fixed, and all that remains is the payment of the money, 
 which is in the hands of the administrators or executors, the fund 
 is subject to garnishment. * * * [*i22] * * * Whether an order 
 has been made by the probate court directing the executors to pay 
 the debts as provided in 2 How. Stat. § 5925 et seq., does not ap- 
 pear. No such order is necessary to authorize them to pay. No 
 such claim is made. The estate is settled, except the payment of 
 the debts and the distribution of the estate in accordance with the 
 will. Nothing but payment remains to be done. The executors 
 cannot be embarrassed, as they admit they are ready to pay. If 
 executors can ever be garnished, I see no reason why they cannot 
 in this case. 
 
 We think the court was in error in quashing the proceedings, 
 and therefore the writ should issue, but without costs. 
 
 Long, C.J., cdncurred with Grant, J. 
 
 HOLKER V. HENNESSEY. 
 141 Missouri 527, 64 Am. St. 524, 42 S. W. 1090, 39 L. R. A. 165. (1897) 
 
 Garnishment — Right of Officer IVIaking Arrest to Search Prisoner — Levy 
 
 Accomplished by Fraud or Abuse of Process, Effect — 
 
 Property in Custodia Legis, Liability to Process. 
 
 Garnishment against B. F. Pixler, sheriff of Nodaway county, 
 in an action by Holker against Hennessey and Green to recover 
 $5,000, of which Holker claims to have been robbed by them. The 
 garnishee was discharged and plaintifif appeals. Affirmed. The 
 
414 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 sheriff took two revolvers and several hundred dollars from the 
 defendants when he arrested them in Nebraska on a criminal 
 prosecution for grand larceny. 
 
 Frank Griffin and W. W. Ramsay, for appellant. 
 
 E. A. Vinsonhaler, for respondent. 
 
 The Court by Macfarlane, J. * * * The only question 
 raised by this record is whether or not this money taken from the 
 person of these prisoners when arrested, and still held by garnishee 
 officially as sheriff, is subject to garnishment, in an attachment 
 suit in favor of plaintiff and against defendants, the subject of the 
 suit being damages on account of the alleged crime. 
 
 It has been held in this state, and is generally recognized as 
 the law, that in a civil action, service of a process upon a defendants 
 who is brought into the territorial jurisdiction of the court by 
 fraudulent means or criminal process, will be set aside if timely 
 objection is made thereto. Byler v. Jones, 79 Mo. 261 ; Christian 
 V. Williams, 1 1 1 M0.435, and cases cited. So it is held that "where 
 an officer unlawfully gets possession of a debtor's property, as by 
 breaking into his dwelling house without proper authority, and 
 then attaches it on mesne process or levies upon it on execution, 
 the attachment or levy will be void." Closson v. Morrison, 47 N. 
 H. 485 ; citing, Ilsley v. Nichols, 29 Mass. (12 Pick.)' 270; People 
 V. Hubbard, 24 Wend. (N. Y.) 369; Curtis v. Hubbard, 4 Hill 
 . (N.Y.) 437, and other cases. This seems to be the modern doctrine 
 founded upon the principle that courts will not lend their assist- 
 ance to effectuate fraudulent or unlawful practices of suitors, 
 though the old doctrine was that the seizure under process in such 
 case would be valid, while the officer making it would [*557] be 
 liable for the trespass. See People v. Hubbard, supra. 
 
 In the case of Closson v. Morrison, supra, the sheriff arrested 
 a person under a charge of grand larceny and before trial or ex- 
 amination, proceeded, on his own motion, to search the prisoner, 
 and took from his person some money, a watch, watch chain and 
 wallet. On the next day writs of attachment were issued against 
 the prisoner and placed in the hands of the sheriff, and he there- 
 upon attached the money and other property. The court, in giving 
 its judgment, says: "The money and other articles were proper 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 415 
 
 articles to attach, if the officer could rightfully obtain possession of 
 them, without arresting the debtor, which the writ did not warrant 
 him in doing. Now, if the officer took advantage of his warrant 
 and the arrest under it, to take from his prisoner this property, not 
 for any legitimate purpose, but simply for the purpose of attaching 
 it on these writs, that would be obtaining possession of the property 
 under false pretenses and fraudulently, which would make the pos- 
 session to stand like the unlawful possession in case of breaking 
 into the house in the other case, and would not justify the attach- 
 ment." The court held that if this property was lawfully 
 taken from the person of the debtor, it was subject to attachment 
 while in the hands of the sheriff. 
 
 The same ruling was made by the supreme court of Iowa in 
 the case of Reifsnyder v. Lee, 44 Iowa, 102. Beck, J., in deliver- 
 ing the opinion, says : "A party to a suit can gain nothing by 
 fraud or violence under the pretense of process, nor will the 
 fraudulent or unlawful use of process be sanctioned by the courts. 
 In such cases, parties will be restored to the rights and position 
 they possessed and occupied before they were deprived thereof by 
 the fraud, violence, or abuse of [*5j5] legal process." Money and 
 a watch had also been taken from the person of the prisoner in that 
 case, and the court held that the officer was authorized to make the 
 search and take into his possession such property, and the levy of 
 the attachment upon it while so held was valid. In a subsequent 
 case, however, the same court held that where the sheriff took from 
 the person of a prisoner two watches and some money, which were 
 in no way connected with the crime with which he was charged, 
 and which could not be used as evidence in the prosecution, it was 
 his duty to return them, and while he retained them his possession 
 was that of the prisoner, and they were "no more liable to attach- 
 ment in an action against the prisoner than if they had been in his 
 pocket." The court says: "To hold otherwise would lead to 
 unlawful and forcible searches of person under cover of criminal 
 process as an aid to civil actions for the collection of debts.'' Bank 
 V. McLeod, 65 Iowa, 666. 
 
 We find the same ruling by the supreme judicial court of 
 Massachusetts, in the cases of Robinson v. Howard, 7 Cush. 257, 
 
416 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 and Morris v. Penniman, 14 Gray, 220. In the former case * * * 
 Shaw, C. J., says : "Such process might be used to search the per- 
 son, or Otherwise, under color of lawful authority, to get posses- 
 sion of the property of a debtor, in order to place it in the hands of 
 the officer, and thus make it attachable under trustee process." In 
 the latter case one Bassett was arrested on a charge of larceny. On 
 "being asked what property he had about him, he delivered up, 
 without objection, a watch and key. While [*5Jp] they were in 
 possession of the officer they were attached on process against Bas- 
 sett. On this state of facts the court held that "the attachment of 
 the watch and key was not valid." 
 
 A sheriff in Texas took from the person of a prisoner $950 in 
 money, and other property. While in his possession the officer 
 was served with process by garnishment. Knox, the prisoner, 
 intervened and claimed that the property in the hands of the sheriff 
 was in the custody of the law and was not subject to garnishment 
 at the suit of a creditor. On appeal this plea was sustained on the 
 ground that the property was not subject to process by garnish- 
 ment. Richardson v. Anderson, 4 Tex. App. Civ. Cas. 493, 18 
 S. W. 195. 
 
 The supreme court of Alabama reaches a different conclusion 
 under a provision of the code of that state. The court, however, 
 in discussing the question, says : "At common law, and perhaps 
 without statute, the money or property" taken from the person of 
 the prisoner, "would be in gremio legis, not subject to attachment, 
 and entirely under the control of the court." Ex parte Hum, 92 
 Ala. 109. * * * [*540] 
 
 We find no statute of this state giving the arresting officer 
 authority to search a prisoner, but no statute is necessary. The 
 power exists from the nature and objects of the public duty the 
 •officer is required to perform. * * * 
 
 We have no doubt the search of the prisoners in this case was 
 entirely justifiable, considering the nature of the crime charged 
 and other circumstances. In the circumstances, also, he was jus- 
 tified in taking from their persons and keeping in his possession 
 the money found upon them, though it may have been in no man- 
 ner connected with the charge or proof against them. Money is 
 
FOR WHAT GARNISHEES MAY BE CHARGED. 417 
 
 the most effective kind of property a prisoner could have in his 
 possession to be used as a means of escape. * * * [*54i] * * * 
 The sheriff being an officer of the court in which the indict- 
 ment is pending, the money is in custody of the court subject to its 
 order. The rule of general application is that money or property 
 which has come into the hands of an officer of a court by virtue of 
 legal process is regarded as in the custody of the law and can not 
 be taken from him under other process, either of execution, attach- 
 ment, or garnishment. Shinn on Attachment, § 505 ; 2 Wade on 
 Attachment, §§ 330, 421 ; Kneel on Attachment, § 410; Waples on 
 Attachment, § 390; 8 Am. -and Eng. Ency. of Law, 11 37. * * * 
 
 1*543] * * * 
 
 It is therefore our opinion that if the money and property were 
 taken from the persons of the prisoners by authority of law, which 
 the sheriff would be .estopped to deny, it was in the custody of the 
 law and subject to the orders of the court in which the criminal 
 proceedings were pending, and was not, at least until after convic- 
 tion, subject to attachment at a suit of a creditor of the prisoner. 
 If, on the other hand, it was taken without authority of law, then 
 it is not subject to attachment because a wrongful use was made 
 
 of criminal process in getting possession. * * * 
 
 Affirmed. 
 Under similar facts the supreme court of Michigan, in a recent 
 case, reversed a judgment against a garnishee, saying: "It is true that 
 there was no collusion shown in this case, but in all cases It might be 
 difficult to show actual collusion, and we think the safe rule is that 
 which excludes the possibility." Hubbard v. Garner, 115 Mich. 406, 
 73 N. W. 390. 
 
418 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 WHAT MAY BE TAKEN UNDER ATTACHMENTS AND EX- 
 ECUTIONS. 
 
 Any property capable of manual seizure is as liable to be 
 taken under execution or attachment as by garnishment. There- 
 fore, again go over the cases under the last preceding head with 
 this thought in mind. Also, read Pennoyer v. Neff^ ante, 48; 
 Sir William Harbert's Case, ante, 138; Keniston v. Little, ante, 
 231 ; Gardner v. Mobile & N. Ry. Co., ante, 238; Klein v. New 
 Orleans, ante, 258. 
 
 HAGAN V. LUCAS. 
 35 United States (10 Peters) 400. (1836) 
 
 Property in Custodia Legis — Priority of Jurisdiction — Effect of Release 
 on Claimant Bond. 
 
 This is a proceeding instituted in the district court of the 
 United States for the southern district of Alabama, according to 
 the statutes of that state, by Charles F.Lucas, as claimant of prop- 
 erty theretofore seized by the marshal of said court on an execu- 
 tion on a judgment of said court in favor of John Hagan against 
 Wm. D. Bynum and A. M'Dade. Froih judgment in favor of the 
 claimant plaintiffs bring error. Affirmed. 
 
 In supf)ort of his claim Lucas gave in evidence duly certified 
 copies of the records of three judgments against said Bynum and 
 M'Dade, rendered by the the circuit court of Montgomery county, 
 Alabama, and of executions thereon, under which the sheriff of 
 said county had returned levies upon the property involved in this 
 proceeding ; and of an affidavit of said Lucas thereafter made and 
 filed in said circuit court alleging that the said property belonged 
 to said Lucas ; and of a bond at the same time executed by said 
 Lucas to said sheriff, according to the statute, for the forthcoming 
 of said property if it should be found subject to said executions; 
 and that on the execution and delivery of said bond said sheriff 
 delivered said property to said Lucas, from whose possession it 
 was afterward taken by said marshal on the execution afterward 
 issued by said district court of the United States. Upon this evi- 
 
WHAT LIABLE UNDER ATTACHMENTS AND EXECUTIONS. 419 
 
 dence the district court instructed the jury that if they believed 
 this evidence and that the claim in the circuit court of Alabama 
 county was still pending and undetermined, the property was in 
 the custody of the law and not liable to levy by the marshal. To 
 this instruction plaintiffs except. 
 
 The Court by McLean, J, * * * Had the property remained 
 in the possession of the sheriff, under the first levy, it is clear the 
 marshal could not have taken it in execution ; for the property 
 could not be subject to two jurisdictions at the same time. The 
 first levy, whether it were made under the federal or state author- 
 ity, withdraws the property from the reach of the process of the 
 other. Under the state jurisdiction, a sheriff having execution in 
 his hands, may levy on the same goods ; and where there is no 
 priority on the sale of the goods, the proceeds should be applied 
 iti proportion to the sums named in the executions. And where 
 a sheriff has made a levy, and afterwards receives executions 
 against the same defendant, he may appropriate any surplus that 
 shall remain, after satisfying the first levy, by the order of the 
 court. But the same rule does not govern where the executions, 
 as in the present case, issue from different jurisdictions. The 
 marshal may apply moneys, collected under several executions, 
 the same as the sheriff. But this cannot be done as between the 
 marshal and the sheriff. A most injurious conflict of jurisdiction 
 would be likely, often, to arise between the federal and the state 
 courts ; if the final process of the one could be levied on property 
 which had been taken by the process of the other. The marshal 
 or the sheriff, as the case may be, by a levy, acquires a special 
 property in the goods, and may maintain an action for them. But 
 if the same goods may be taken in execution, at the same time 
 by the marshal and the sheriff, does this special property vest in 
 the one, or the other, or both of them ? No such case can exist ; 
 property once levied on, remains in the custody of the law, and it 
 is not liable to be taken by another execution, in the hands of a dif- 
 ferent officer ; and especially by an officer acting under a different 
 jurisdiction. But it is insisted in this case, that the bond is sub- 
 stituted ior the property ; and consequently that the property is 
 released from the levy. The law provides that the property shall 
 
420 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 be delivered into the possession of the claimant, on his giving 
 bond and security in double the amount of the debt and costs, that 
 he will return it to the sheriff if it shall be found subject to the 
 execution. [*4.04] Is there no lien on property thus situated, either 
 under the execution or the bond? That this bond is not in the 
 nature of a bond given to prosecute a writ of error, or on an 
 appeal, is clear. The condition is, that the property shall be 
 returned to the sheriff, if the right shall be adjudged against the 
 claimant. Now it would seem that this bond cannot be considered 
 as a substitute for the property, as the condition requires its 
 return to the sheriff. The object of the legislature in requirmg 
 this bond, was to insure the safe keeping and faithful return oi 
 the property, to the sheriff, should its return be required. It, 
 then, the property is required by the statute and the condition of 
 the bond to be delivered to the sheriff on the contingency stated, 
 can it be liable to be taken and sold on execution. If the prop- 
 erty be liable to execution, a levy must always produce a for- 
 feiture of the condition of the bond. For a levy takes the prop- 
 erty out of the possession of the claimant, and renders the per- 
 formance of his bond impossible. Can a result so repugnant to 
 equity and propriety as this, be sanctioned ? Is the law so Incon- 
 sistent as to authorize the means by which the discharge of a legal 
 obligation is defeated, and at the same time exact a penalty for 
 the failure. This would indeed be a reproach to the law and to 
 justice. The maxim of the law is, that it injures no man, and can 
 never produce injustice. 
 
 On the giving of the bond, the property is placed in the pos- 
 session of the claimant. His custody is substituted for the cus- 
 tody of the sheriff. The property is not withdrawn from the cus- 
 tody of the law. In the hands of the claimant, under the bond for 
 its delivery to the sheriff , the property is as free from the reach 
 of other processes, as it would have been in the hands of the 
 sheriff. 
 
 In Holt 643, and i Show. 174, it was resolved by Holt, chief 
 justice, that goods being once seized and in custody of the law, 
 they could not be seized again by the same or any other -sheriff; 
 nor can the sheriff take goods which have been distrained, pawned 
 
WHAT LIABLE UNDER ATTACHMENTS AND EXECUTIONS. 421 
 
 or gaged for debt ; 4 Bac. Ab. 389 ; nor goods before seized on 
 execution, unless the first execution was fraudulent, or the goods 
 were not legally seized under it. * * * [*^05] 
 
 In Lusk V. Ramsay, 3 Munford (Va.) 417, the court decided 
 that the lien, by virtue of a writ of fieri, facias, upon the property 
 of the debtor, is not released by his giving a forthcoming bond, 
 but continues until such bond is forfeited. In that case, the 
 defendant's property having been levied on by an execution in 
 the hands of the sheriff, was suffered to remain in his possession, 
 on his giving a forthcoming bond for the delivery of the goods 
 on the day of sale ; but before the day of sale the defendant deliv- 
 ered the goods in satisfaction of another execution, and the ques- 
 tion was made whether the forthcoming bond released the lien of 
 the first execution. In his opinion. Judge Roane draws the fol- 
 lowing distinctions between a forthcoming bond, and what is 
 called a replevy bond, under the statute of Virginia, i. A replevy 
 bond under the act operated a release of the property. 2. Because 
 the surety therein is to be approved by the creditor : a circum- 
 stance very material in a bond considered as a substitute for an 
 execution, and wanting as to the sureties upon forthcoming bonds. 
 3. Because a replevy bond obtained the force of a judgment by 
 the mere giving thereof ; though its execution was suspended till 
 the expiration of the three months, and did not owe its obligation, 
 as a judgment, to the breach of the condition thereof, as is the 
 case of forthcoming bonds. 
 
 The bond given by the claimant Lucas, bears a strong anal- 
 ogy to a forthcoming bond. By the latter, the goods were to be 
 delivered to the sheriff on the day of sale; by the former, the goods 
 delivered to the sheriff, so soon as the right shall be deter- 
 mined against the claimant. In neither bond is the plaintiff 
 in the execution consulted, as is done in a replevy bond, as to the 
 sufficiency of the surety: nor do either of these bonds, like the 
 replevy bond, operate as a judgment, until a breach of the condi- 
 tion. In fact, the bond under the Alabama statute is substantially 
 a forthcoming bond. * * * [*^o(5] 
 
 We think, that part of the charge to the jury by the district 
 court which respected the pendency of the suit in the state court, 
 
422 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 and which was excepted to, was substantially correct : and we ire 
 
 of opinion, that on principle and authority, and also under thfe 
 
 construction given to the statute by the supreme court of the 
 
 state, the judgment of the district court must be 
 
 AMrmed. 
 
 DAWSON V. HOLCOMB. 
 1 Ohio (1 Hammond) 275, 13 Am. Dec. 618. (1824) 
 
 Proceeds of Execution Sale — Liability to Levy — Sheriff's Duty to Return. 
 
 Motion on notice by Dawson, execution creditor, for the 
 amercement of Holcomb, sheriff of Gallia county, for misappro- 
 priating money made on execution in favor of Dawson. The 
 sheriff's defense was that after making the money on Dawson's 
 execution, and while the money remained in his hands, he re- 
 ceived a writ of attachment against Dawson which he levied upon 
 the money. From an order overruling the motion Dawson 
 brings error. Reversed. 
 
 Opinion Per Curiam. We see nothing in this case that could 
 protect the sheriff against the motion to amerce. By the terms of 
 the writ of execution, he was not merely commanded to make 
 the money, but to have it before the judges on the return day, 
 to satisfy the plaintiff. In strictness of law, he was not at liberty 
 to pay it over to the judgment creditor before he brought it into 
 court, and although this is often done with impunity, yet it is 
 always at the risk of the officer, and if a third person should 
 appear from the record to have an equitable right to the money, 
 it would become a question whether such payment would exon- 
 erate the officer. 
 
 The form of the writ, as far as it goes, is good evidence of 
 the duty of the sheriff. He may be held to a literal compliance 
 with it, and whenever that is dispensed with, it is not because he 
 has a legal right to do so, but because the court are presumed to 
 have permitted it. While the money remains in the hands of the 
 officer, it is in the custody of the law. It does not become the 
 property of the judgment creditor till it is paid over, and conse- 
 quently is not liable to be attached as his. The writ of attach- 
 ment could not supersede the execution, or release the sheriff 
 from a literal compliance with its command, which required him 
 
WHAT LIABLE UNDER ATTACHMENTS AND EXECUTION'' 423 
 
 to bring the money into court, so that it might be subject to their 
 order. Cases frequently occur, in which the right to receive the 
 proceeds of a judgment is contested, and in which the decision 
 of the court is necessary as a guide to the officer. 
 
 It will not be contended that he is the proper person to deter- 
 mine the rights of claimants ; but if he may legally dispose of the 
 money, before the return of his writ, that power is necessarily 
 vested in him. In the case of Ross v. Clark, i Dallas (Pa.) 354, 
 the defendant had obtained a judgment against Ross, who paid 
 the money into the hands of the prothonotary, and then attached 
 it. On a rule to show cause, the court quashed the writ, because 
 the money in the hands of the prothonotary was to be considered 
 fn the same state as if it had been paid into the hands of the 
 sheriff. In the case of Turner v. Fendall, i Cranch, 117, it was 
 the opinion of the court that, although money could be taken in 
 execution, if in the possession of the defendant, yet that it could 
 not be so taken till it had been paid over to the person entitled 
 to receive it, because, until so paid, it does not become his prop- 
 erty — he has not the actual legal ownership of the [*^77] specific 
 pieces of coin which the ofiScer may have received. Such a right, 
 say the court, can only be acquired by obtaining the legal or actual 
 possession of them, and until this be done, there can be no such 
 absolute ownership as that an execution may be levied on them. 
 By the authority of this case, the money in question was not liable 
 to an execution while in the hands of the officer. It would be dif- 
 ficult, then, to assign a reason why it should be subject to an 
 attachment, for, in this case, as well as in the other, it is necessary 
 that the thing taken should be the property of the person against 
 whom the process issues. * * * 
 
 A strong argument might also be drawn from the mischiev- 
 ous consequences that would follow such a course of practice. 
 It would lead to endless delay and vexation. One attachment 
 might follow another, till the whole demand was absorbed in cost. 
 The honest creditor, on the eve of receiving the fruit of his judg- 
 ment, might find himself farther from his object than when he 
 sued out his original process. In short, the introduction of such 
 a practice would measurably defeat the aim of legal process, as 
 far as it is resorted to for the recovery of money. 
 
424 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 We are clearly of opinion that the sheriff's return contains no 
 apology or excuse for the non-payment of the money, and that he 
 ought to have been amerced [*2;^8] on the motion of the plain- 
 tiff. * * * 
 
 Judgment reversed. 
 
 HANDY V. DOBBIN. 
 12 Johnson Rep. (New York) 220. (l8is) 
 
 Liability of IVIoney and Bank-Bills to Attachment and Execution — Com- 
 parative Scope of the Processes. 
 
 Attachment in justice court by Dobbin against Handy levied 
 on two five-dollar bank bills belonging to Handy. Defendant 
 brings error on certiorari from judgment for plaintiff in the jus- 
 tice's court. The only error relied on was that these bills were 
 not liable to be attached. 
 
 The Court by Spencer, J. ' There can be no doubt that the 
 constable, under the attachment, could take any goods and chat- 
 tels, which could be levied on by execution. The authority in both 
 cases is the same. Bank bills are treated, civiliter, as money; a 
 tender in them is good, unless it be specially objected to at the 
 time. The question then is narrowed to this, Can money be levied 
 on by an execution ? This court, in Williams v. Rogers, ( 5 Johns. 
 167), intimated strongly their concurrence in the decision of the 
 supreme court of the United States on this point. In that case 
 ■ {Turner v. Fendall, 1 Cranch, 133), all the cases on the point were 
 reviewed, and it was held that money could be levied on. We now 
 fully concur in the doctrine there advanced; we perceive no ob- 
 jection in principle, why money should not be taken in execution. 
 It is the goods and chattels of the party; and it appears to us to 
 comport with good policy as well as justice, to subject every thing 
 of a tangible nature, excepting such things as the humanity of the 
 law preserves to a debtor, and mere choses in action, to the satis- 
 faction of a debtor's debts. 
 
 Judgment affirmed. 
 
WI-JAT LIABLE UNDER ATTACHMENTS AND EXECUTIONS. 425 
 
 CONN V. CALDWELL. 
 6 Illinois (i Gilm.) S3i. (1844) 
 
 Proper Form of Execution on Judgment in Action Commenced by At- 
 tachment — Effect of Personal Service — Effect of Appearance — 
 Abandonment of Levy by Giving up Possession. 
 
 Attachment. Defendants bring error. Modified. 
 
 A. W. Jones, for appellants. 
 
 N. D. Strong, and /. H. Hall, for appellee. 
 
 The Court by Treat, J. On the 24th day of February, 
 1842, Joseph Caldwell sued out of the Madison circuit court, an 
 attachment against Joseph H. Conn, James R. Sprigg and William 
 W. Greene. The writ of attachment was levied on certain real 
 estate, and on the steamboats "Ca:psian" and "Osage." The sher- 
 iff's return stated, that on the day succeeding the levy, the steam- 
 boats were released by order of the sjieriff. 
 
 The declaration was in assumpsit, on three promissory notes. 
 The defendants appeared and pleaded nott assumpsit. On the 4th 
 day of October, 1842, this issue was heard by the court, and found 
 for plaintiff, and his damages assessed at the sum of $12,923.46. 
 A judgment was thereupon rendered, that the plaintiff recover of 
 the defendants the said sum and costs ; that he have execution 
 therefor, to be levied of the real estate attached, and the steam- 
 boats "Capsian" and' "Osage ;'' and also, that he have execution 
 generally for his damages and costs. To reverse that judgment, 
 the defendants prosecute a writ of error. 
 
 Since the suing out of the writ of error, the original return of 
 the sheriff on the writ of attachment has been amended in the cir- 
 cuit court, and the amendment certified into this court, and made 
 part of the record. It appears from the amended return, that the 
 steamboat "Osage," at the time of the levy, was freighted and on 
 her passage from St. Louis to the ports on the Illinois river ; that it 
 was agreed between the plaintiff and the master, that the boat 
 should proceed on her voyage, and return, and be delivered to the 
 sheriff, subject to the attachment; that the boat was thereupon 
 released, for the purpose of the voyage, but has never been re- 
 delivered. 
 
 The errors assigned questioned the propriety of the judgment 
 
426 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 entered. It is insisted in the first place, that the judgment [*55(5] 
 is erroneous, because it awards execution generally against the 
 defendants. 
 
 Where a judgment in default is rendered in a suit by attach- 
 ment, without personal service of process on the defendant, the 
 judgment is in rem, and the estate attached is alone liable for its 
 payment. In such case, a special execution issues for the sale of 
 the specific property. But where the defendant is served with 
 process, or appears to the action, the judgment is in personam, and 
 the plaintiff is entitled to a general execution thereon. In this 
 case, the defendants pleaded to the declaration, and the cause was 
 fully determined to the merits. The judgment is, therefore, as 
 conclusive between the parties, as if the action had been instituted 
 in the ordinary way. The plaintiff having the right to a general 
 execution on the judgment, the court committed no error in award- 
 ing it. 
 
 In the next place, it is insisted that the judgment is erroneous 
 in awarding a special execution. It is contended, that the prop- 
 erty attached was released by the appearance of the defendants. 
 This position is not tenable. This precise question was before 
 this court at the present term, in the case of Martin v. Dryden, 
 6 111. 187. This court there held, that an appearance of the de- 
 fendant did not, of itself, discharge the property attached ; but that 
 the defendant in order to release it from the lien acquired by the 
 levy, must either replevy the property, or give security for the pay- 
 ment of whatever judgment may be rendered in the cause, as pro- 
 vided in the 29th section of the attachment act. In this case the 
 defendants neither replevied the property, nor gave special bail. 
 The lien created by the levy became perfect by the judgment, and 
 the plaintiff was entitled to a special execution for the sale of the 
 property, except such as he had voluntarily relinquished. 
 
 The circuit court decided correctly in embracing the steam- 
 boat "Osage" in the award of execution. / That boat was released 
 from the custody of the sheriff, for the purpose of the voyage, with 
 the express understanding that the boat should be re-delivered and 
 continue subject to the attachment. [*557] The lien on the boat 
 was not thereby extinguished, but still subsists as between the par- 
 
WHAT IS A VALID LEVY AND SERVICE. 427 
 
 ties to this suit^ If, in the meantime, third persons have become 
 interested in the boat, a different question may arise. 
 
 The steamboat "Caspian" was absolutely released, and the 
 judgment is erroneous in including it in the award of execution. 
 For this error, the judgment must be reversed with costs. The 
 -cause, however, need not be renjanded. It was fully adjudicated 
 in the court below, and the proper judgment can be entered in this 
 <;ourt. A judgment must be rendered here, that the plaintifiE re- 
 cover of the defendants the sum of $12,923.46, with legal interest 
 from the 4th day of October, 1842. On this judgment, the plaintiff 
 can have execution generally, and also a special execution for the 
 ■sale of the real estate attached, and the steamboat "Osage." 
 
 Judgment reversed. 
 
 9. WHAT CONSTITUTES A VALID LEVY AND SERVICE. 
 
 A levy can be regular only when made by a proper person, 
 on a proper writ, at a proper time and place, etc., all of which we 
 Tiave considered, and will here review. But under this head our 
 attention is particularly directed to discovering what acts would 
 "be fatal, and what are essential, to a levy. For that purpose re- 
 read: Michels v. Stork, ante, 83; Pracht v. Pister, ante, 179; 
 Green v. Burke, ante, 205 ; Portis v. Parker, ante, 286 ; Burton 
 V. Wilkinson, ante, 316; McGregor v. Brown, ante, 342; Holker 
 V. Hennessey, ante, 413; Hagan v. Lucas, ante, 418; Dawson v. 
 Holcomh, ante, 422. 
 
 BAILEY V. WRIGHT. 
 39 Michigan 96. (1878) 
 
 Execution — Trespass in Levying — Effect. 
 Replevin by Lenna E. Wright against Alvin W. Bailey and 
 William Tinker in Barry circuit court. Judgment for plaintiff, 
 -and defendants bring error. Affirmed. 
 
 C. G. Holhrook and 7. Carveth for plaintiffs in error. 
 j Sweesey &■ Knappen, for defendant in error. 
 
428 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 The Court by Campbell, C. J. Defendant in error ret)levined 
 a piano from plaintiffs in error, who defend on the ground that 
 she purchased from one Ackley, and that the purchase was void 
 as against a levy made by them upon an attachment against 
 him. [*P7] 
 
 Several questions are presented on the record, but inas- 
 much as the only defense was under the levy, the validity of that 
 is the first matter to be considered. 
 
 The defendants by their own testimony showed that while 
 Ackley was temporarily absent, and his house, where his wife 
 was present at the time, was locked up, they broke intb it by vio- 
 lence and seized the piano upon the writ. It is admitted this 
 was a trespass, but it is claimed the levy may be a good levy in 
 spite of the wrongful acts by which it was accomplished. 
 
 We think this is too dangerous a doctrine to be tolerated. 
 Public policy requires above all things that courts and officers 
 executing their process shall respect the lawful rights of all per- 
 sons. The practical permission which over-zealous officers would 
 i-eceive to commit wrongs with substantial impunity, if their 
 levies should be held good without regard to the manner of their 
 enforcement, would remove every check on lawlessness. To 
 hold that an act is lawful which may be lawfully resisted is 
 absurd. Such misconduct should neither be justified nor winked 
 at. Any officer who breaks the law should be held to be entirely 
 without excuse, and as fully responsible as any other male- 
 factor. 
 
 The doctrine on this subject is so fully discussed in Ilslev v. 
 Nichols, 29 Mass. (12 Pick.) 270; 22 Am. Dec. 425, and People v, 
 Hubbard, 24 Wend. (N. Y.) 369; 35 Am. Dec. 628, that we need 
 not go into any further investigation. The doctrine is sensible 
 and just, and is the only one whereby private safety and public 
 peace can be preserved. There can be no respect for courts and 
 their process if their ministers are upheld in violations of laWr 
 or if they can be lawfully opposed in exercising their functions, 
 as they may be if such levies are held valid. 
 
 As the defense entirely failed, it is not important what rul- 
 ings were made on other points. Judgment must be affirmed 
 with costs. 
 
WHAT IS A VALID LEVY AND SERVICE. 429 
 
 HOLLISTBR v. GOODALE. 
 8 Connecticut 332. 21 Am. Dec. 674. (1831) 
 
 Execution — What Constitutes a Levy. 
 
 Trespass for taking and carrying away a barouche and 
 harness. Both parties claim as constables levying under attach- 
 ments against H. Benton. Plaintiff claimed that he obtained the 
 key to the carriage-house where the property was, unlocked the 
 door, attached the barouche, declaring that he attached all car- 
 riages and harnesses in the house, and that while he was attempt- 
 ing to remove the carriage defendant forcibly took it from him 
 and afterward sold it. Defendant claimed that he hid near the 
 carriage-house, and that when plaintiff unlocked the door de- 
 fendant first entered and seized the barouche, -and afterward 
 returned and took the harness. The court instructed the jury that 
 if the plaintiff was at the door with writ and key, and unlocked 
 the door and proclaime.H his levy before defendant attached, they 
 should find for plaintiff, and defendant moves for a new trial. 
 Granted. 
 
 Toucey, for the motion. 
 
 Hungerford and Merrick, contra. 
 
 The Court by Hosmer, C.J. The inquiries in the case, are, 
 what constitutes a legal attachment; and whether on this subject, 
 the charge was correct. 
 
 I. The word attach, derived remotely from the Latin term 
 attingo, and more immediately from the French attacher, signi- 
 fies to take or touch, and was adopted as a precise expression of 
 the thing; nam qui nomina intelligit, res etiam intelligit. 
 
 The only object of attachment is to take out of the defend- 
 ant's possession, and to transfer into the custody of the law, act- 
 ing through its legal officer, the goods attached, that they may, 
 if necessary, be seized in execution, and be disposed of and de- 
 livered to the purchaser. From both these considerations it is ap- 
 parent, that to attach is to take the actual possession of property. 
 Hence, the legal doctrine is firmly established, that to consti- 
 tute an attachment of goods, the officer must have the actual pos- 
 session and custody- It was laid down in these express words. 
 
430 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS, 
 
 by Parsons, C. J., in Lm^e v. Jackson, 5 Mass. 157, 163, 
 and by Parker, C. J., in Train v. Wellington, 12 Mass. 495, 
 497. Nor is there, so far as my investigations have enabled me 
 to discover, a single determination opposed to the preceding 
 principle. 
 
 The case of Turner v. Austin, 16 Mass. 181, decided, that 
 no overt act, by the sheriff, was necessary to constitute an 
 attachment of property, previously in his custody on another at- 
 tachment. But this is entirely consistent with the principle [*335] 
 advanced. The sheriff already had the actual custody; and mere 
 form of ceremony, for form's sake, and not for the preservation 
 of substance, can never be required. 
 
 It was likewise adjudged in Denny v. Warren, 16 Mass. 
 420, that an lofficer, who entered a store to attach goods, 
 where there was no competition, received the key from 
 the clerk and locked up the store, having declared his intention 
 to attach, had made a sufficient attachment. And in Gordon v. 
 Jenny, 16 Mass. 465, the determination was to the same effect. 
 
 So in Naylor v. Dennie, 8 Pick. 198, it was decided, that 
 inaccessible goods, covered up in the hold of a ship, were attached, 
 by the officers' going on board, and leaving a keeper to take care 
 of them; and in Merrill v. Sawyer, 27 Mass. (8 Pick.) 397, that 
 hay in a barn was duly attached, by putting a notification of the 
 attachment on the barn door. 
 
 Now, in all these cases, the court went on the principle 
 that the actual possession and custody was necessary to con- 
 stitute an attachment; although there being no race for priority 
 of attachment, they held that to be the actual custody and pos- 
 session which, perhaps, was constructive possession only. 
 
 The analogous cases all demonstrate the necessity of actually 
 taking the property. This is the established law concerning the 
 levy of executions; that is, the property levied on is actually 
 taken into the custody of law. So when an attachment or ex- 
 ecution is levied on the body, it is effected, by a corporal seizing 
 or touching of the body, and thus putting it in the custody of 
 the law (3 Bla. Comm. 288) ; or by what is tantamount, a 
 power of taking possession and the party's submission thereto. 
 
WHAT IS A VALID LEVY AND SERVICE. 431 
 
 Genncr v.- Sparkes, I Salk. 79. Horner v. Battyn, Buller on Nisi 
 Prius, 62. But if the person do not submit (and this dead prop- 
 erty cannot do) the body must actually be seized. 
 
 2. The question now arises, in view of the preceding facts 
 and principles, whether the charge to the jury was correct. 
 
 That the plaintiff was at the door of the carriage-house, 
 with a writ of attachment in his hand, only proves his intention 
 to attach. To this no accession is made, by the lawful posses- 
 sion of the key and the unlocking of the door. Suppose, what does 
 not appear, that the key was delivered to him by the owner of 
 the barouche that he might attach the property ; this would be of 
 no amount. He might have the constructive possesssion, which, 
 on a sale as between vendor and vendee, would be sufficient; 
 [*ii<^] but an attachment can only be made by the taking of actual 
 possession. As little importance is attached to the unlocking of 
 the door, and the declaration that the plaintiff attached the car- 
 riage. This was not the touching of the property, or the taking 
 of the actual possession. The removal of an obstacle from the 
 way of attaching, as the opening of the door, is not an attach- 
 ment, nor was the verbal declaration. An attachment is an act 
 done; and not a mere oral annunciation. From these various 
 acts, taken separately or conjointly, the plaintiff did not obtain 
 the possession and custody of the barouche, and therefore, he 
 did not attach the property. 
 
 On the contrary, if the facts contended for, by the defend- 
 ant, were proved, his defence was complete. Between two of- 
 ficers having separate attachments, there was a race for pri- 
 ority. They both had arrived at the carriage-house; and so 
 soon as the door was opened, the defendant outstripped his com- 
 petitor, and seized on the barouche. By this act, he had the 
 actual possession, and was successful in his intended prior attach- 
 ment. I would therefore advise a new trial of the cause. 
 
 Daggett and Williams, J]., were of the same opinion. Peters, 
 J., was also inclined to concur, though he was not quite satis- 
 fied that the charge was wrong. Bissell, J., was absent. 
 
 Neiv trial to be granted. 
 
432 PROCESSES TO OBTAIN SAtlSFACTIGN OF JUDGMENTS. 
 
 FIELD V. MACULLAR. 
 20 Illinois App. 392. (1886) 
 
 Second Execution — Necessity of Formal Levy — Necessity of Indorse- 
 ment — Rule of Priority — Creditor's Right to Follow tlie Proceeds 
 into the Hands of a Prior Creditor Whose Lien has Failed. 
 
 Bill in chancery by Addison Macullar et al., partners, against 
 Peter W. Field et al., partners, and Eric E. Anderson, to recover 
 ■money received by Field et al. arising from execution sale of prop- 
 erty of said Anderson. From decree for complainants defendants 
 bring error. Affirmed. 
 
 Field et al. recovered judgment against Anderson and the 
 same day had execution issued and the sheriff immediately levied 
 it on Anderson's stock of goods and store fixtures. Macullar 
 £t al. recovered judgment the next day (Oct. 4, '79), and imme- 
 diately had execution thereon placed in the hands of said sheriff, 
 who promised to levy it but made no indorsement on the writ. 
 Anderson then moved (Oct. nth) to vacate the Field judgment, 
 but the sheriff proceeded to sale of the property (Oct. 13th), and 
 against protests by attorney for Macullar et al. that the Field 
 judgment was fraudulent, and as to them invalid, paid the pro- 
 ceeds to Field et al. in part satisfaction of their judgment and re- 
 turned the Macullar execution wholly unsatisfied. After said sale 
 and payment the Field judgment was reversed by this court and 
 the case remanded for a new trial. After this Macullar et al. de- 
 manded said money from Field et al., and payment being refused 
 filed this bill. 
 
 Lyman & Jackson, for complainants. 
 
 James H. Fair child, for defendants. 
 
 The Court by Bailey, J, * * * The principal question in the 
 case is, whether the complainants obtained, by means of their exe- 
 cution, a first and paramount lien on the goods of Anderson levied 
 upon by the sheriff, and upon the proceeds of said goods after 
 the sale. That said execution became a lien on said property 
 from the time of its delivery to the sheriff, is indisputable. * * * 
 
 It is not material that there was no formal levy of the com- 
 plainant's execution. The sheriff had in his hands a former exe- 
 cution against Anderson, apparently valid, in favor of the defend- 
 
WHAT IS A VALID LEVY AND SERVICE. 433 
 
 ants, and by virtue of that execution he had levied upon said 
 property and taken the same into his possession. In Leach v. 
 PinCj 41 111. 65, it was held that where a sheriff has in his hands 
 an execution, and levies upon personal property and reduces it 
 to possession, it is then in the custody of the law, and it is not 
 essential to the lien of other executions in his hands or subse- 
 quently received, that they should be formally levied; that the 
 execution first coming to hand authorizes the seizure of the prop- 
 erty, which creates the levy, and while it remains in his possession 
 he is unable to seize it again. 
 
 Upon the execution sale the liens of the two executions im- 
 mediately attached to the fund created by the sale, with the same 
 rights to priority which existed before the property was sold. 
 See Hart v. Wingart, 83 111. 282, and authorities cited. It can 
 not be doubted that the effect of the reversal of the defendants' 
 judgment was to extinguish their lien. If the property had re- 
 mained up to that time in the hands of the sheriff, it could not 
 afterward have been sold under their execution. The property 
 having been sold and the proceeds having been paid over to them, 
 they were no longer entitled, [*jp(5] as against Anderson, to retain 
 the money, but as between them, it was defendants' duty to repay 
 it to him, and he could have recovered it in an action for money 
 had and received. Clark v. Pinney, 6 Cow. (N. Y.) 298; Maghee 
 v. Kellogg, 24 Wend. (N. Y.) 32; Green v. Stone, i Harris & 
 John. (Md.) 405; Freeman on Executions, § 346, and authorities 
 cited. 
 
 The defendants' lien, then, having been extinguished by the 
 reversal of their judgment, and the complainants' lien having re- 
 mained in full force, the complainants' right to the fund produced 
 by the sale became paramount, entitling them to have the whole 
 of said fund paid to them in satisfaction of their judgment. Said 
 fund belonged to them, and the defendants having obtained pos- 
 session of it with notice of the complainants' rights, are properly 
 charged as trustees, holding said fund for the benefit of the com- 
 plainants. We are of the opinion that there was no error in the 
 
 decree, and it will therefore be affirmed. 
 
 Decree affirmed. 
 
434 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 The only proper practice is to indorse the levy on the writ or, on 
 some pajjer annexed thereto, and in an action against a sheriff for 
 misappropriating money made on plaintiff's fi. fa. the supreme court 
 of Pennsylvania held that the sheriff should not be permitted in de- 
 fense to show that he had levied upon and sold the property on a previ- 
 ous writ which had no levy indorsed on it, nor to put in evidence a 
 written levy never attached to such writ and not returned with it 
 but retained in the possession of the sheriff till the trial of the action 
 against him. M'Clelland v. Slingluff, 7 W. & S. 134, 42 Am. Dec. 224. 
 
 Assumpsit by the first attaching creditor against the second, to 
 whom the proceeds were paid by the sheriff on a sale pending an appeal 
 by the first creditor from an order dismissing his attachment, was sus- 
 tained in Virginia. Caperton v. McCorkle, 5 Grattan 177. A similar action 
 was recently sustained in New York, Gillig v. Grant, 23 App. Dlv. 596, 
 49 N. Y. Sup. 78; Haebler v. Myers, 132 N. Y. 363. 
 
 10. THE NATURE OF THE LIENS ACQUIRED BY ATTACH- 
 MENTS, GARNISHMENTS, JUDGMENTS, AND EXECU- 
 TIONS. 
 
 Under this head read again: Allen v. Hall, ante, 140; Par- 
 sons V. Gill, ante, 189; Clark v. Withers, ante, 191 ; Yasoo & M. 
 V. Ry. Co. V. Fulton, ante, 202; Commonwealth v. Magee, ante, 
 307 ; all the cases from page 328 to 352 ; Hagan v. Lucas, ante, 
 418; and Field v. Macullar, ante, 432. 
 
 Year-books, 2 Henry IV., page 14, No. 5. (A. D. 1401) 
 Lien of Execution — Bona Fide Purchase. 
 A question was moved before the justices of the common 
 bench, as to the effect of a judgment on a contract of guaranty,, 
 which the plaintiff had recovered pro loco et tempore. And it 
 was moved that such guaranty was only a covenant, and that by 
 such covenant a man does not bind any lands he afterward deliv- 
 ers for value in whose hands soever they come by purchase or 
 otherwise without judgment in any action, for that would be too 
 great a mischief. Brenchesley — In an action of debt a man shall 
 not have execution of any lands but of those which the defendant 
 had on the day of the judgment rendered, and not of those lands 
 which he sold while the suit was pending. And of chattels a 
 
NATURE OF THE LIEN. 435 
 
 man shall have execution only of those which the defendant had 
 
 the day of execution sued. And this was resolved by the whole 
 
 court. 
 
 Translated by the editor. The original is in black-letter Norman- 
 French. 
 
 ANONYMOUS. 
 Croke Bliz. 1Y4. (Hilary term, 31 Eliz.; A. D. 1589) 
 
 Decided in the common bench, Anderson, C. J., Periam, Wyndham, 
 and Walmsley, JJ. 
 
 Cooper desired the opinion of the court, that if a iieri facias 
 be directed to make execution of goods, and after the teste of the 
 writ, and before the sheriff executes it, the party sells the goods 
 bona Me, if they can now be taken in execution. The Court held 
 they might, for by the award of execution, the goods were bound, 
 so that they may be taken in execution, into whose hands soever 
 they come. And Walmsley said so it was ruled in a case at Hert- 
 ford term, wherein he was of counsel. 
 
 SIR GERARD FLEETWOOD'S CASE. 
 8 Coke's Reports 171. (Paschae, 8 James; A. D. 1611) 
 
 Commencement of Execution Lien at Common Law. 
 
 Sir William Fleetwood, anno 35 Eliz., was possessed of a 
 house and certain lands in Pynner, in the parish of Harrow, in 
 the county of Middlesex, for certain years yet enduring; and An. 
 36 El. he became receiver general of the revenue of the court of 
 wards, &c., and entered into 20 bonds, each of them 200I., with 
 condition to make a yearly perfect account before the 20th of 
 June, &c. ; and afterwards upon several accounts, in the years 36, 
 37, 38 and 39 Eliz. he became indebted to the queen in great sums 
 of money; and he being so indebted, by his indenture, 10 Feb. 
 40 EHz., in consideration of iioo/. bargained and sold the said 
 lease to James Pemberton, by force whereof he entered, and was 
 thereof possessed ; which, by mean conveyance, and in considera- 
 tion of 1300/., was sold to Sir Gerard Fleetwood. The question 
 was, whether the said messuage and lands are now extendable, or 
 liable to the king's debt ? And although it is at the election of the 
 sheriff, either to extend or to sell a lease, so long as it remains in 
 the debtor's hands, as appears in the books of 31 Ass., p. 6; 3& 
 
436 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 Ass., p. 4; 44 E. An. 3, 16; 7 H., 6, 2., &c., yet it was resolved, 
 that the said sale of the term should bind the king, because the 
 term was but a chattel, and there was no covin in the case, and a 
 sale bona fide of chattels is good after judgment, but not after 
 execution awarded, as appears in 2 H., 4, 14, per Curiam; 9 H., 
 6, 58 ; II H., 4, 7, and of the freehold or inheritance which he has 
 at the time of the judgment in case of a common person, and 
 from the time one becomes the king's debtor, 5 Eliz. Dyer 224, 
 225, Sir Will. Cavendish's case. And the case in 50 Ass., p. 4, 
 was urged to the contrary, where the king's debtor took a lease 
 to him and his wife for years, and before execution the husband 
 died, execution was sued against the wife, for it was the act of 
 the husband, and he had power of the term at the time of his 
 death and the wife came to it without valuable considera- 
 tion, and quodammodo continued the interest of her husband. 
 And Coke, C. J., said, that a receiver, or other accountant who 
 is indebted, shall not be in a worse case than a felon or traitor, 
 who may, after the felony or treason, and before conviction, sell 
 bona fide for his sustenance, &c., his chattels, be they real or per- 
 sonal. 
 
 WOODS V. MAINS. 
 1 G. Greene (Iowa) 275. (1848) 
 
 Judgment Liens — After Acquired Land — Retrospective Laws. 
 
 This is an action of right by Woods against Mains in the 
 Des Moines district court, to recover several tracts of land in 
 that county. From judgment for the defendant on plea and ver- 
 dict denying the right plaintiff brings error. Reversed. 
 
 Plaintiff supported his claim to title by a judgment rendered 
 in the Des Moines district court, June 19, 1838, and a sale of 
 the lands to his grantor. May 10, 1845, under an alias fi. fa. on 
 that judgment (Duer v. English) ; and showed that the defend- 
 ant therein, English, acquired title from the United States gov- 
 ernment by patent dated Oct. 28, 1839. Plaintiff claimed that 
 Duer's judgment became a lien on that land by virtue of the stat- 
 ute approved Jan. 20, 1840; and that thereby his execution over- 
 reached the defendant's title, which is based on a deed from Eng- 
 lish dated and executed April 20, 1840. The court instructed the 
 
NATURE OF THE LIEN. 437 
 
 jmy to find a verdict for the defendant, because the plaintiff had 
 shown no subsisting interest. 
 
 Grimes, H. W. Starr and L. D. Stockton for plaintiff. 
 
 D. Rorer for defendant. 
 
 Kinney, /. * * * In approaching- the various important ques- 
 tions presented by the bill of exceptions, and raised by counsel 
 in this case, we do it with great diffidence. But we have been 
 materially aided in coming to a conclusion satisfactory to a major- 
 ity of the court, by the great ability with which the important 
 principles applicable to judgment liens, the sale and transfer of 
 real property, and the construction of statutes, have been dis- 
 cussed by the respective counsel. 
 
 The instructions of the court, as set out in the bill of excep- 
 tions, raise three important questions: 
 
 1. The doctrine of liens, and to.what extent, at common law, 
 judgments were liens. 
 
 2. The construction and effect of the statute of frauds of 
 Iowa of 1840, and its applicability to the judgment against Eng- 
 lish. 
 
 3. Whether a judgment can bind lands purchased and 
 acquired by the judgment-debtor posterior to the rendition of the 
 judgment against him. 
 
 It is contended, with great apparent confidence, by the coun- 
 sel for the defendant in error, that neither at common law nor 
 by our statute, was it enacted at the time of the rendition of 
 [*2gi] the judgment, nor at the time the land was sold on execu- 
 tion, that the judgment was not a lien upon the lands purchased 
 by Mains of English and wife. It is also urged with great ability 
 that the statute of frauds of 1840 could not affect the judgment 
 against English, as the judgment was rendered anterior to the 
 passage of that statute; and to give it such effect would be not 
 only to make it retrospective in its action, but that it would also 
 thereby become a lien upon lands purchased by the judgment- 
 debtor subsequent to the rendition of the judgment. 
 
 At an early day, in England, as has been correctly said by 
 counsel, judgments could not be collected by sale of the lands 
 as they were exempt upon feudal principles. The statute of 
 
438 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 West., 2, creating the writ of elegit, by which the possession of 
 one-half of the land was sold, was enacted; and the courts held 
 that, although the statute did not create a lien, yet from the power 
 of the court to enforce the collection of its judgments, it was a 
 lien upon so much as was within the scope of the writ to execute 
 and sell. 
 
 In the absence of statutory enactments at a later period, both 
 in England and in this country, it has been held that judgments 
 were liens upon lands. 2 Tidd. Pr. 967. 
 
 In the language of Chief Justice Marshall, courts have 
 inferred a lien from the power to take lands on execution. [Scriba 
 V. Deanes], 1 Brock., 170 [Fed. Cas. No. 12,559]. This doctrine 
 appears to have grown out of the nature and properties of the 
 judgment itself, and the execution to enforce its collection, and 
 its utter imbecility without so essential a quality. This principle 
 seems to have been so universally recognized by the courts in 
 England and this country, that it became ingrafted into, and 
 formed a part of the common law of the land. 
 
 Since the statute of frauds of West., 2, creating the writ of 
 elegit, and the various acts of parliament since that statute, and 
 the apparent necessity of statutory provisions in this country, 
 most of the states of the union have passed statutes upon the 
 [*2p2] subject of liens, with, provisions peculiar to the statutes 
 of the respective states. 
 
 At the time the judgment was rendered against English, the 
 Michigan code was in force: Iowa then forming a part of, and 
 being under the jurisdiction of Wisconsin. By the provisions of 
 that code, all lands and tenements, as well as the goods of the 
 debtor, were bound from the time they were seized in execution. 
 Mich. Code, p. 424, §2. 
 
 Iowa assumed a territorial form of government in July, 1838. 
 On the 25th day of January, 1839, the territorial legislature passed 
 an act subjecting real and personal estate to execution. Laws of 
 1839, p. 197. This act subjected real and personal estate to be 
 levied and sold upon execution. 
 
 Neither in the Michigan code nor in this statute is there any 
 express provision making judgments in the district and supreme 
 
NATURE OF THE LIEN. 439 
 
 courts liens. Judgments then, at common law, under the writ of 
 elegit, only being liens inferentially, arising out of the power of 
 the courts to collect them, these statutes did not materially change 
 or alter the common law. But the statute of frauds of 1840 
 enlarged the common law by directly making judgments liens. 
 
 This statute provides "that judgments in the district and 
 supreme courts of this territory shall have the operation of, and 
 shall be liens upon, the real estate of the person or persons against 
 whom such judgments may be rendered from the day of the ren- 
 dition thereof, in the county within which such judgments may be 
 rendered." 
 
 Does this statute apply to judgments in esse at the time it 
 took effect, or relate exclusively to those thereafter to be ren- 
 dered? If it operates upon then existing judgments, the judg- 
 ment against English comes within its provisions. 
 
 In Swift's Digest the following rules are laid down for the 
 construction of statutes: "The common law is to be regarded, 
 and three things are to be considered — ^the old law — the mischief 
 — and the remedy : how the old law stood at the time of making 
 the act; what the mischief was for which the common [*2p2] law 
 did not provide; and what remedy the statute had provided to 
 cure the mischief." By the aid of these rules, we have but little 
 difficulty in placing a construction upon this statute satisfactory 
 to a majority of the court. 
 
 The writ of elegit in England, and of fieri facias in this coun- 
 try, seized the property, but the judgments upon which they issued 
 were only liens by virtue of the power of the courts to enforce 
 the collection of their judgments. 
 
 The Michigan code, and the law of 1839, being silent in 
 relation to liens, the common law remained undisturbed. What 
 then was the mischief to be remedied ? and what was the remedy 
 provided by the statute of 1840? 
 
 At the time this statute was passed we had just entered upon 
 our territorial existence. Iowa was assuming a business and 
 commercial importance, commensurate with the great and grow- 
 ing enterprise peculiar to the west. 
 
 The government lands were brought into a market, and the 
 
440 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 people for the first time were becoming the fee-simple owners 
 of the soil. Judgments had been rendered in the district and 
 supreme courts of the territory, at a time when there were not 
 any lands on which they could be liens, the title being in the gen- 
 eral government. 
 
 These judgments, as against real estate of the judgment 
 debtors, having been obtained when they did not, and could not, 
 possess any title to lands, were in many instances nugatory, and 
 comparatively void. At common law, nor by statute, up to the 
 statute of 1840, they were not liens upon lands purchased by the 
 debtors, after the land came into market, and hence creditors 
 were almost or quite remediless. 
 
 Under this peculiar state of things incident to the early his- 
 tory and settlement of Iowa, of which the court will take judi- 
 cial notice, was the mischief, and therefore the necessity of pro- 
 viding a remedy by which these judgments should become liens. 
 
 Irrespective- of the mischief intended to be cured by the stat- 
 ute, and the necessity of a remedy for which the old law did not 
 provide, we would not do violence to the language of the [*2p4] 
 statute, by giving it a construction applicable to all judgments 
 unsatisfied at the time it took effect. 
 
 Judgments in the district and supreme courts shall be liens 
 upon the real estate of the person or persons against whom such 
 judgments may be rendered, &c. To construe this statute as 
 referring exclusively to judgments in futuro, would not only be 
 forced and ungrammatical, but such a construction would defeat 
 the object of the legislature in the remedy intended. If they had 
 so intended it to have operated, it is not unreasonable to presume 
 that they would have used the words, judgments hereafter ren- 
 dered in the district court &c., instead of using language which 
 applies as well to judgments in esse at the time, as future judg- 
 ments. 
 
 The judgment against English was in full life and force at 
 the time this statute took effect. English at that time was also 
 owner of the land in controversy. The land was in the county 
 where the judgment was rendered; as such we think the judg- 
 ment clearly became a lien, by virtue and force of the statute. 
 
NATURE OF THE LIEN. 441 
 
 In adopting this construction, and coming to this conclusion, we 
 nevertheless cannot recognize as sound law, that judgments will 
 bind alter-acquired land. * * * [*2p5] 
 
 It has been urged to the court, with much force, by the coun- 
 sel for the defendant in error, that, as the judgment was [*2p6] 
 rendered against English antecedent to our change into a ter- 
 ritorial government, the statute could not affect it ; that it could 
 only affect such as were rendered in the district and supreme 
 courts of Iowa. We do not think this position well taken. Sec- 
 tion 15th, of the organic law, enacts, "that all suits, process, pro- 
 ceedings, &c., shall be transferred to the district courts estab- 
 lished in Iowa." * * * 
 
 Judgment is therefore reversed, and a new trial awarded. 
 
 [*297\ 
 
 Dissenting opinion by Hastings, C. J. While I concur with 
 the majority of the court in the main points settled in this case, 
 I find myself arriving at a very different conclusion. 
 
 The judgment against English was rendered in the year 
 1838, a period when there was little of any real estate within the 
 present boundary limits of this state owned in fee by the people 
 who then inhabited it. 
 
 The first, and I think the most important question to be set- 
 tled is, whether the judgment against English attached to, as a 
 lien, after-acquired lands. Under the laws then in force, the plain- 
 tiff had a right to his execution against the real and personal 
 estate of the defendant. There was no statute then in force, ihat 
 has been brought to our notice, which gave the judgment creditor 
 a lien upon the real estate of the defendant, without execution 
 •and levy ; and no law giving a judgment the property of binding 
 , the estate of the defendant, but the common law, modified by the 
 acts of parliament of Great Britain. 
 
 By the common law of England, judgments did not attach 
 on real estate, on account, it is supposed, of the feudal tenures 
 by which all the real estate in England was holden at one time. 
 In proportion as the feudal system gave way to the more enlight- 
 ened and liberal spirit of the age, creditors, who always had a 
 controlling influence, succeeded in procuring the enactment of 
 
442 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 the Statute of Westminster 2d, 13, Ed. I., c. 18, which gave the 
 creditors the possession of one moiety of the debtor's lands, which 
 he had at the time of the judgment rendered. Because the par- 
 hament had put this power into the hands of the creditors, the 
 court of common law immediately erected thereon judgment liens, 
 under pretense that the doctrine originated from the power to 
 take the lands in execution. The lien is said to grow out of the 
 right to issue the elegit. Scriba v. Deanes, i Brock., 170 [Fed. 
 Cas. No. 12,559]. 
 
 I can see no reason for such an inference ; it appears to be 
 an unauthorized, arbitrary rule, which no court ever should have 
 adopted — a violation it appears to me of all correct rules [*^y5] 
 of construction of statutes, adding to an act of parliament, with- 
 out authority, a power to make judgments bind real estate in 
 the hands of innocent bona fide purchasers without notice. By 
 the same arbitrary decisions, the lien is made to retroact, and exist 
 days before the judgment is rendered; and the lien would prob- 
 ably have yet existed, but for the interference of the i6th section 
 of the English Statute of Frauds, 29th Charles II., chap. 3, which 
 provided that such liens, as against purchasers, bona fide, for val- 
 uable consideration, should be limited to the day judgment was 
 signed. Thus did this doctrine originate; and having been im- 
 pliedly sanctioned by subsequent acts of parliament, and especially 
 the last act mentioned, and having been universally conceded to 
 exist ever since, and coming with our ancestors to this country, 
 and being engrafted upon our systems of jurisprudence as a part 
 of the common law, it would seem to be rash, if not unwise, to 
 question this right of lien wherever the English common law pre- 
 vails ; or that the right to seize lands of a defendant, on execution, 
 exists either by elegit or other final process. If there had been 
 no statute in force regulating writs of execution at the time of 
 the rendition of this judgment, I should agree with the court 
 below in limiting the lien ; but there were statutes providing for 
 the sale of defendant's land, imparting to the purchaser the title 
 in fee. The elegit did not exist, but a more powerful process was 
 substituted; the lien did not depart with the elegit, but was ex- 
 tended with the writ of execution to the title in fee of all the lands 
 
NATURE OF THE LIEN. 443 
 
 of drfendant. The same reason which caused the orighi of this 
 lien, will extend its power from a moiety of the lands of defend- 
 ant to the entire real estate liable to execution. The judgment, 
 then, at the day of the rendition thereof, possessed the property 
 of binding all the real estate of English, owned in fee, within the 
 jurisdiction of the court which rendered it. 
 
 It is argued by plaintiff in error, with much ability, and 
 apparently supported by high judicial authority, that this judg- 
 ment bound the estate of English, ' subsequently acquired, and 
 consequently attached to the premises in controversy. Inasmuch 
 [*.?pp] as the plaintiff had his right to execution on lands subse- 
 quently acquired, and as the lien originated in the right to issue 
 the elegit in the first place, so it is contended it extended to, and 
 ■attached upon, the right to execution on subsequently acquired 
 estate. If the decisions creating a lien, in the first place, were 
 founded in reason, it would be but reasonable that the lien should 
 be thus extended ; but as this decision was arbitrary, and engraft- 
 ed as law upon an act of parliament under mere pretence of con- 
 struing the meaning and giving effect to the same, and as some of 
 the American courts have repudiated this doctrine, and as much 
 ^confusion appears to exist in the English cases as to the right of 
 this lien, and as there appears to be no sound reason in making 
 such extension of the lien in this country, I concur with the major- 
 ity of the court in the^.opinion, that judgments do not attach as 
 liens upon the real estate of the defendant, acquired after its ren- 
 dition. Sugden, in his treatise on vendors, admits "that it was 
 usual to search for judgments against a vendor only from the 
 time he purchased the estate," Sugden on Vendors, 340. But he 
 condemns the practice, and refers to cases which Yeates, J., in 
 Calhoun v. Snider, 6 Bin. (Pa.) 138, says, ''will not warrant 
 the doctrine to the extent laid down by that author." 
 
 In the case cited, 4 Ohio, 94, the court says, "no adjudged 
 ■case can be found in the English books, so far as opportunity has 
 been allowed for examination upon the question, whether lands 
 acquired subsequent to the judgment, and conveyed before the 
 execution issues, are liable to inquisition under the elegit;" and 
 •adds that the supreme court of Pennsylvania have traced the 
 
444 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 authority to the year-books, and concludes it is not settled by any 
 of them. 
 
 We ought not, then, to gratify the rapacity of judgment 
 creditors, by establishing a lien which has been- of doubtful exist- 
 ence in a country in which the most favored- debtors in failing cir- 
 cumstances were but prisoners at large. I believe this question 
 has been several times before the supreme court of the territory, 
 and this lien was by that court unhesitatingly [*Joo] repudiated • 
 and such has been the fate of this question in the district courts 
 of the territory in which I have practised, from the first organ- 
 ization of these courts. * * * [*J02] 
 
 I cannot, therefore, agree with the majority in their con- 
 struction of this act, nor in their conclusion, that the court below 
 erred in charging the jury that the plaintiff in this case has not 
 shown that in law he has any valid, subsisting interest in the land 
 described in his declaration. 
 
 Statute 29 Charles II, Chapter 3, §§ 13, 14, 15 and 16.— A. D., 1677. 
 (Original § 13, cited as §§ 13 and 14.) And whereas it liath beene found 
 mischievous that Judgements in the Kings Courts at Westminster doe 
 many times relate to the first day of the Terme whereof they are en- 
 tred or to the day of the Returne of the Originall or fileing the Bails 
 and binde the Defendants Lands from that time although in trueth they 
 were acknowledged or suffered and signed in the Vacation time after 
 the said Teriie whereby many times Purchasers finde themselves 
 agrieved [§ 14.] Bee it enacted by the authoritie aforesaid That from 
 and after the said foure and twentyeth day of June any Judge or Officer 
 of any of his Majestyes Courts of Westminster that shall signe any 
 Judgements shall at the signeing of the same without Fee for doeing 
 the same sett downe the day of the moneth and yeare of his soe doeing 
 upon the Paper Booke Dockett or Record which he shall signe which 
 day of thQ moneth and yeare shall be alsoe entred upon the Margent 
 of the Roll of the Record where the said Judgement shall be entred. 
 
 (Original § 14 cited as §15.) And bee it enacted That such Judge- 
 ments as against Purchasers bona fide for valueable consideration of 
 Land Tenements or Hereditaments to be charged thereby shall in con- 
 sideration of Law be Judgements onely from such time as they shall be 
 see signed and shall not relate to the first day of the Terme whereof 
 they are entred or the day of the Returne of the Originall or fileing the 
 Baile Any Law, Usage or Course of any Court to the contrary notwith- 
 standing. 
 
 (Original § 15 cited as § 16.) And bee it further enacted by the 
 authoritie aforesaid That from and after the said fewer and twentyeth 
 day of June noe Writt of Fieri facias or other Writt of Execution shall 
 
NATURE OF THE LIEN. 445 
 
 binde the Property of the Goods against whome such Writt of Execu 
 tion is sued forth but from the time that such Writt shall be delivered 
 to the Sheriffe Under Sheriffe or Coroners to be executed, And for the 
 better manifestation of the said time the Sheriffe Under-Sheriffe and 
 Coroners their Deputyes and Agents shall upon the receipt of any such 
 Writt (without Fee for doeing the same) endorse upon the backe there- 
 of the day of the moneth [or '] yeare whereon he or they received the 
 same. 
 
 Explanation. — The above are §§ 13, 14 and 15, of the statute as they 
 appear in the "Statutes of the Realm" Vol. 5 p. 841, published in London 
 in 1819, "printed by command of His Majesty King George the Third," 
 etc. Shortly after the statute was enacted some careless scribe divided 
 § 13 numbering the last part of it § 14 and all the succeeding sections 
 one number greater than each bears in the original statute. This 
 blunder has been copied by all ihe succeeding unauthorized editions of 
 the statute, and §§ 14 and' 15 are always cited as §§ 15 and 16 and the 
 same is true of all that follow. See Throop on Verbal Agreements, p. 30. 
 In the Statutes of the Realm the section numbers are in the margin in 
 Roman numerals. I have inserted in § 13, at the place where the divis- 
 ion was made, f§ 14] that the student may note the part which is cited 
 as § 14. The [or i] in the last section is as it appears in the Statutes 
 of the Realm, which is explained at the foot of the page by the note: 
 ■■ and" O. omitted. 
 
 SMALLCOMB v. CROSS and BUCKINGHAM. 
 I Lord Raymond 251, I Comyns 35, I Salk. 320. (9 Will. III. A.D. 1697) 
 
 Who Entitled to First Levy — Common Law Rule — 29 Car. II. Rule — 
 
 Levy and Sale by Sheriff under Last Writ — First 
 
 Creditor's Right to Retake Property. 
 
 This decision, rendered by the English Court of Common Pleas, Holt, 
 C.J., Rokeby, Turton and Eyer, JJ., is given according to the report by 
 Lord Raymond. The reporters do not disagree as to the material facts, 
 but the other reports give them more in detail. 
 
 In trover for goods, upon the general issue pleaded, at the 
 trial at nisi prius in London at Guildhall, before Holt, chief jus- 
 tice, the fact appeared to be thus: /. S. recovered judgment in 
 debt against Fox, and /. N. recovered another judgment against 
 Fox. J. S. sued a fieri facias upon his judgment, which was de- 
 livered to the sheriffs of London at nine o'clock in the morning, 
 but he would not take a warrant of the sheriff to levy the goods, 
 but procured the writ to be indorsed according to the statute of 
 29 Car. 2. cap. 3. /. jY. sued another fieri facias, which bore teste 
 before the fieri facias of /. 5". but was delivered to the sheriffs sub- 
 
446 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 sequent to the -fieri facias of /. S., viz. at ten o'clocic in the morn- 
 ing, but both the writs were delivered the same day. /. N. took 
 a warrant from the sheriffs, and levied the goods in execution, 
 which the sheriffs sold to the plaintiff Smallcomb. Afterwards 
 the sheriff seized the goods in [*2^2] execution upon the fieri 
 facias of /. 6". and sold them to the defendant Cross. And now 
 Smallcomb brought trover against Cross and the sheriffs of Lon- 
 don ; and this matter appearing upon the evidence. Holt, chief jus- 
 tice, doubting of it, appointed that it should be moved in court. 
 And after argument on both sides it was resolved by the judges 
 that if two writs of execution are delivered to the sheriff the 
 same day, he has not an election to execute which he pleases, but 
 he must execute that which was first delivered. But if the sheriff 
 levies goods in execution by virtue of the writ last delivered, and 
 makes sale of them (whether the last writ was delivered upon the 
 same day or a subsequent day) the property of the goods is bound 
 by the sale, and the party cannot seize them by virtue of his exe- 
 cution first delivered ; but he may have his remedy against the 
 sheriff. For sales made by the sheriff ought not to be defeated, 
 for if they are, no man will buy goods levied upon a writ of exe- 
 cution. And at common law if a fieri facias had been sued the 
 first day of the term, and another fieri facias afterwards, and the 
 last had been first executed, the other had had no remedy but 
 against the sheriff. But in this case no action lies against the 
 sheriff, because he who delivered his writ first would not take a 
 warrant from the sheriffs to levy the goods ; so that it seems he 
 had a design only to keep the execution in his pocket, to protect 
 the defendant's goods by fraud. And judgment for the plaintiff 
 by the ivhole court. * * * 
 
 This is a leading case and figures prominently in all discussions of 
 this and kindred questions. It is universally recognized as good law. 
 See Payne v. Drewe, ante, 338. 
 
 In trespass de bonis asportatis by a purchaser at a constable's sale 
 against a sheriff who took the property from him on a fi. fa. againsc 
 the original judgment debtor in his hands before but not levied till 
 after the levy and sale by the constable judgment was rendered for 
 plaintiff and affirmed on appeal. Duncan v. M'Comber, 10 Watts, (Pa.) 
 212. Marsh v. Lawrence, 4 Cowen (N. Y.) 461, is a similar case. 
 
 A sheriff having levied three fl. fas. on a horse brought trover for 
 
NATURE OF THE LIEN. 447 
 
 it against one claiming as purchaser at a sale by a constable on a 
 warrant issued by a Justice of the peace and received and levied by the 
 constable after the sheriff received but before he levied his writs. Judg- 
 ment for defendant was afBrmed on appeal, Smallcomb v. Cross, and 
 Payne v. Drewe, being cited with other decisions as authority. Jones 
 V. Judkins, 4 Dev. & Bat. (N. Car.) 454. 
 
 The doctrine of Smallcomb v. Cross applies only to chattels, for 
 if the judgment is a lien the record of it is notice to everyone and the 
 land may be -sold on execution to satisfy it though previously sold un- 
 der an earlier writ on a junior judgment. Kirk v. Vonberg, 34 111. 440. 
 
 GREEN V. JOHNSON. 
 9 North Carolina (2 Hawks) 309, 11 Am. Dec. 763. (1823) 
 Executions — Priority at Common Law — Lien from Teste. 
 
 Motion in the superior court of Warren by Green for a rule 
 to Johnson, to show cause why money raised by him by sale of 
 land should not be applied in satisfaction of Green's execution 
 on his judgment in said court rendered at October term, 1821, 
 against one Hawkins, whereon a fi. fa., tested of that term, issued 
 March 15th, 1822, and delivered to Johnson, as county coroner, 
 to be executed. From an order discharging the rule Green 
 appeals. Reversed. 
 
 At the February term of the Warren county court judg- 
 ments were rendered against Hawkins, and executions issued 
 thereon and delivered to Johnson before he received Green's 
 a. fa. Afterward he sold Hawkins's land on the executions from 
 the county court, and now has the money. 
 
 Taylor, C. J. My enquiries, in this case, have led me to the 
 belief, that the plaintiff is entitled by law, to the money in the 
 hands of the sheriff, by virtue of the prior teste of his execution. 
 I do not mean to give an opinion on any other facts than those 
 stated on the record; nor, particularly, on the supposition that 
 the money had been raised by a sale under the second execution. 
 
 The writ of fi. fa. in this state, binds the defendant's goods 
 from the teste of the writ, after which time, any sale of them is 
 void; because, from thence the goods are attendant to answer 
 the execution. This is an old rule of the common law, founded 
 on the reason, that as executions could issue only against goods 
 which might, if not so bound, be sold by the party, he would thus 
 
448 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 be able to evade what is termed the life of the law, its effect and 
 fruit. The common law, also, presumed that the sheriff would 
 execute such writs immediately, and thereby give such publicity 
 to the transaction as would prevent imposition upon purchasers. 
 The judgment did not bind, because that being in force for a 
 year, it would have been vexatious to restrain the debtor from 
 his ordinary private dealings for so long a period. 
 
 When the term lien is applied to other subjects in the law, 
 its import is familiarly understood to be a binding, or attachment, 
 •of the thing spoken of, for the benefit of him who is entitled 
 thereto. The lien of a vendor on goods not yet delivered, of a 
 •carrier, a factor, or pawnbroker, entitles them, respectively, to a 
 priority over others, whose claims are posterior, upon the simple 
 rule of justice, that the first lien gives a right to the first satisfac- 
 tion. [*3ii] 
 
 So far from there being any reason wherefore this rule 
 should not be applied, and enforced to a certain extent between 
 the conflicting claims of creditors under different executions, it 
 seems to me demonstrable, from a slight view of the alteration 
 of the law by the statute of frauds, that it is so applied, and 
 .always has been. 
 
 When that statute was passed, the priority arising from the 
 teste was understood to subsist in theory in full vigor: every 
 book that treated on executions, laid it down as settled law ; and 
 the statute itself had no further view, than to restore its practical 
 -utility by the substitution of a lien better fitted, by its notoriety, 
 to prevent fraud and injustice to third persons. 
 
 It was not that the rule of the common law was defective, 
 in fixing on the teste of an execution to bind the defendant's 
 goods; because, in reality, the law supposed the execution to be 
 delivered to the sheriff immediately from the teste; and if, in 
 point of fact, that had been done, the purposes of the statute would 
 have been accomplished, and its enactment rendered useless. Thus 
 the award of an execution, and the teste of an execution, are con- 
 vertible terms ; but the former is chiefly used in cases before the 
 statute. A bona Me sale of chattels is good after judgment, but 
 .not after execution awarded. Sir Gerard Fleetwood's Case, 8 Coke 
 
NATURE OF THE LIEN. 449 
 
 170. "By the award of execution the goods are bound, so that 
 they may be taken in execution, into whose hands soever they 
 come." Cro. EUz. 174. 
 
 But the real mischief intended to be remedied was, that cred- 
 itors took out executions, one under the other, without delivering 
 them to the sheriff, whence the retrospect of the teste made sales 
 uncertain, each plaintiff being entitled, according to his relative 
 priority; and it was utterly impossible for purchasers and strangers 
 to tell, without an inspection of the record, a process neither cheap 
 nor easy, to what extent the goods were bound. [^312] 
 
 So far as other persons were concerned who might have a 
 title to the goods between the teste and delivery, the statute de- 
 signed to restore the old law ; but as to the party himself, his exec- 
 utors and administrators, the goods, since the statute, as before, 
 are bound from the teste. 2 Show. 485. 
 
 If this position be correct, I would infer from it this corrol- 
 lary, that the cases, since the statute of frauds, showing the force 
 and extent of the lien created by the delivery of the writ of A. fa., 
 will go very far towards explaining and proving the extent and 
 operation of the lien arising from the teste before the statute^ A 
 more direct mode of showing the question would be, to adduce 
 cases which occurred before the statute; but none such, directly 
 in point, are to be found. There are, however, dicta and decisions 
 of modern judges, relative to the common law in this point, which, 
 if correctly reported, are entitled to much consideration. Lord 
 Mansfield decided, that, though the sheriff had seized under one 
 writ first, he was bound to sell under another delivered after- 
 wards, if it had a prior teste — cited in 4 East 534, in notis. To 
 the same effect, is the opinion of the late Chief Baron MacDon- 
 ald, who having presided many years in the court of exchequer, 
 may be supposed, was well instructed on the subject. His words 
 are, "I take it, before the statute of frauds, a writ of execution 
 of a prior teste, would have been preferred to a writ of execution 
 of a subsequent teste, although the latter was first delivered to 
 the sheriff, and was begun to be executed, provided that the writ 
 •of prior teste came to the sheriff's hands before sale" — cited in 
 16 East 279, in notis. If these opinions of these eminent men 
 
450 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 are to be relied on as authentic, they go the whole length of the 
 present controversy. They will be found, too, in accordance with 
 the decisions since the statute. 
 
 The case of Hutchinson v. Johnson, i Term Rep. 729, 
 shows, that where two writs of fi. fa. against the same [*3I3] 
 defendant are delivered to the sheriff on different days, and no 
 sale is actually made of the defendant's goods, the first execution 
 shall have the priority, even though the seizure was first made 
 under the subsequent execution. I would remark on this case, 
 that the statute priority by delivery, is preserved, notwithstanding 
 a seizure under a second delivery. Can any reason be assigned, 
 why the common law priority shall not be maintained, notwith- 
 standing a seizure under a subsequent teste, provided the first 
 execution reaches the sheriff before the last is actually executed? 
 If there cannot, then the case before us is decided by this author- 
 ity. * * * The law laid down in the case, affirms every principle 
 on which the plaintiff relies in the case before us, though it goes 
 further, and validates a sale made under the second execution, a 
 question with which we have now no concern. Rybot v. Peck- 
 ham, cited in i Term Rep. 729, is decided on the same principle; 
 and while it admits the validity of a sale under the second execu- 
 tion, it shows at the same time, that the sheriff makes himself 
 liable to the plaintiff in the first, which could not be, but for the 
 priority of the latter. The courts have evidently gone [*5-r^]. 
 far to support sales actually made under execution ; and it is prob- 
 ably right, and according to the general policy of the laws, rhat 
 innocent vendees should not be disturbed by dormant liens, more 
 especially as the plaintiff may obtain satisfaction from the sheriff : 
 but though a second execution executed may destroy the lien of 
 the first; though it may be waived, or lost by laches or fraud, or 
 overreached by relation of a bankruptcy or extent, yet nothing 
 of that kind apj>ears in this case. I am, therefore, of opinion that 
 judgment shall be entered for the plaintiff. * * * [*JJ^] 
 
 If an execution of prior teste is held up by the party, or not. 
 issued, which is the same thing, and one of posterior teste issues- 
 and is executed, there is no injustice in saying that the latter shall 
 have the preference ; vigilantibus et nan dormientibus leges sub- 
 
NATURE OF THE LIEN. 451 
 
 veniunt. But when an execution of younger date happens, by 
 mere accident, to reach the hands of the sheriff before one of an 
 older teste, and is not executed before the other is received by 
 the sheriff, I can see no injustice or inconvenience in giving a 
 preference to the execution bearing the first or oldest teste, qui 
 prior est tempore potior est jure. * * * 
 
 Henderson, Judge, dissentiate. This case is submitted with- 
 out argument, and I fear I have not been able to find all the cases 
 on the subject, or duly to understand and appreciate those I have 
 found. The result of my investigation is, that neither at the com- 
 mon law nor since the statute of frauds, did either the teste or 
 the delivery of the writ of execution bind or fix upon the prop- 
 erty, otherwise than to affect it in the hands of a voluntary pur- 
 chaser ; that as between the debtor and the creditor, the property 
 Was not divested by either ; and that at the common law, the first 
 delivered writ of execution [*Jip] imposed upon the sheriff an 
 obligation of executing it, before writs subsequently delivered, 
 upon this simple ground, that he who is prior in point of time, 
 has a prior claim to his exertions over those who are posterior, 
 upon the maxim, vigilantibus non dormientibus servat lex. * * * 
 
 KENNON V. FICKLIN AND PECK. 
 44 Kentucky (6 B. Monroe) 414, 44 Am. Dec. 776. (1846) 
 
 Priority between Attaching Creditors — From Delivery — Severai Depu- 
 ties of Same Slieriff. 
 
 Hard, for plaintiff. 
 
 Beatty, for defendants. 
 
 The Court by Eming, C. J. This is a controversy between 
 attaching creditors, as to the distribution of the fund attached, 
 their cases against an insolvent debtor and garnishees who owed 
 him being all heard together. It seems that Kennon's bill was 
 first filed, and his process first placed in the hands of one deputy ; 
 that afterwards, on the same day, Ficklin and Peck, each with a 
 knowledge of the fact, and with a view to overreach the claim of 
 Kennon, filed their separate bills, sued out process, and placed the 
 same in the hands of another deputy, who executed the same 
 first, each deputy using reasonable diligence in the execution o£ 
 the process put into each of their hands. 
 
452 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 Upon the hearing of all the cases together, the court gave 
 priority to Ficklin and Peck, decreeing to them the fund due from 
 the garnishee, upon the ground that process was first served on 
 them in the cases of Peck and Ficklin. [*^/5] 
 
 While it is conceded that in the case of distinct officers, the 
 first levy gives the prior lien, yet in the case of the same officer, 
 in the discharge of impartial justice between litigants, it is his 
 duty and that of his deputies to levy that first which first came 
 to his or their hands ; and if his deputy levies the junior execution 
 first, it is his duty, upon being apprised of the fact, to pay the 
 money to the plaintiff in the senior execution, as was determined 
 by this court in the case of Million v. Commonwealth, for the use 
 of Withers, i B. Monroe, 310. 
 
 Though there is not a perfect analogy between the execution 
 of original process or process of attachment and the levy of an 
 execution, as the officer of sheriff is one, and his deputies his own 
 agents, it is his duty, in the discharge of impartial justice between 
 litigants, to execute and require his deputies to execute all process 
 in the order in which it comes to the hands of either. And the 
 statute, with a view to preserve the time, requires the sheriff to 
 indorse the process the time of its reception, i Stat. Law, 339. 
 
 The junior process, it is true, where there are several depu- 
 ties, may be sometimes first served without fault on the part of 
 the principal or either of his deputies, as in the case before us, 
 when the process in one case was placed in the hands of one dep- 
 uty, and in other cases in the hands of another, the latter not 
 knowing of the prior process in the hands of the former. Each 
 are required to use due diligence in the execution of the process 
 placed in his hands, and in the exercise of all reasonable diligence 
 on the part of both, one may succeed in the execution of his pro- 
 cess first. If that should be the junior process, it would be hard 
 to make the principal liable to the plaintiff in the senior process ; 
 nor is it just, necessary or proper, in such a case to make him 
 responsible. 
 
 The process in all the cases being served, and the fund 
 attached being in the power and under the control of the court, 
 and all the parties before the court, the chancellor should, in the 
 
NATURE OF THE LIEN. 453 
 
 distribution of the fund, exercise that same impartial justice be- 
 tween the parties, which should have been observed by the officer 
 in the execution of the process. As with him the first come should 
 be first [*4i6] served, if he or any of his deputies has been 
 seduced, or by trick or stratagem, deluded into the service of the 
 junior first, or if this should happen in the exercise of due dili- 
 gence on the part of the officers, the chancellor having the con- 
 trol of the fund should distribute it as it would have been distrib- 
 uted had the officer executed them in the order in which they came 
 to hand. 
 
 The decree of the circuit court giving priority to Ficklin and 
 Peck, to the demand against Henry and Bett, is reversed, and 
 cause remanded that a decree may be rendered giving the priority 
 and preference to Kennon in the distribution of this fund. 
 
 RICHARDS ET AL. v. THE MORRIS CANAL & BANKING CO. 
 20 New Jersey Law (Spencer) 136. (1843) 
 
 Priority between Execution Creditors — Lien form Levy — Proceeds in 
 
 Court. 
 
 Motion by Richards et al. for a rule to amend the sheriff's 
 return to their execution against the above defendant by adding 
 thereto a levy on the property sold by the sheriff under an execu- 
 tion against the defendant in favor of Robt. Thompson, and that 
 the money in court arising from said sale be paid to the plain- 
 tiffs. Granted. 
 
 Plaintiffs' execution was issued and delivered to the sheriff 
 at the September term, 1841 ; and he would have levied it but for 
 an order entered the same term, staying proceedings under it to 
 enable the defendant to make a defense against the judgment. 
 That issue has now been resolved in favor of the plaintiffs; but 
 in the meantime the sheriff received Thompson's execution and 
 under it levied and sold property for the $1724 30 now in dispute. 
 
 A. Whitehead and P- D. Vroom, for the motion. 
 
 0. S. Halsted, contra. 
 
 The Court by Hornblower, C. J. It would be the hight of 
 injustice to refuse this motion. The property out of which this 
 money was raised was bound by the plaintiffs' execution from 
 the time of its delivery to the sheriff, and he would have levied 
 
454 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 upon it if it had not been for the misentry or misconception of 
 the rule granted by the court. The execution was not set aside, 
 nor its legal operation in any way suspended, so as to let in a 
 junior execution. The intention of the court was simply to stay 
 the sheriff from making a sale under it until the rights of the 
 parties had been settled by the court. The execution, therefore, 
 though not actually levied, continued to be a lien upon the prop- 
 erty till it was sold; and that lien followed the proceeds of the 
 sale in the hands of the sheriff. The money in court ought, in 
 my opinion, to be paid over to the plaintiffs in satisfaction of their 
 
 execution as far as it will go. 
 
 Ordered accordingly. 
 Compare Commonwealth v. Magee, ante, 307. 
 
 PULLIAM V. OSBORNE. 
 58 United States (17 Howard) 471. (1854) 
 
 Execution Lien — Conflict of Jurisdiction — Effect of Levy and Sale 
 under Junior Writ. 
 
 Mr. Badger, for plaintiff in error. 
 
 No counsel appeared for defendant in error. 
 
 The Court by Campbell, J. This was an issue in the district 
 court, under a statute of Alabama (Clay's Digest, 213, §§ 62, 64), 
 for the trial of the [*474\ right to property taken under an exe- 
 cution from that court, in favor of the appellee, and claimed by the 
 testator of the appellant, as belonging to him, and not to the 
 defendant in the execution. 
 
 It appeared on the trial that, at the delivery of the execu- 
 tion to the marshal, in favor of the appellee, the property be- 
 longed to the defendant, and that the levy was made before the 
 return day of the writ; but that, before this levy, the property 
 had been seized and sold to the claimant, by a sheriff in Alabama, 
 under executions issued from the state courts, upon valid judg- 
 ments, after the teste and delivery of the executions from the 
 district court. 
 
 The district court instructed the jury, that a sale under a 
 junior execution from the state court did not divest the lien of 
 the execution from the district court, and that the writ might be 
 executed, notwithstanding the seizure and sale under the process 
 from the state court. 
 
NATURE OF THE LIEN. 455 
 
 The lien of an execution, under the laws of that state, com- 
 mences from the delivery of the writ to the sheriff, and the lien 
 in the courts of the United States depends upon the delivery of 
 the writ to their officer. But no provision is made by the statute 
 of the state or the United States for the determination of the 
 priorities between the creditors of the respective courts, state 
 and federal. They merely provide for the settlement of the pri- 
 orities between creditors prosecuting their claims in the same 
 jurisdiction. 
 
 The demands of the respective creditors, in the present in- 
 stance, were reduced to judgments, and the officers of either court 
 were invested with authority to seize the property. 
 
 The liens were, consequently, coordinate or equal; and, in 
 such cases, the tribunal which first acquires possession of the 
 property, by the seizure of its officer, may dispose of it so as to 
 vest a title in the purchaser, discharged of the claims of creditors 
 of the same grade. 
 
 This court applied this principle {Williams v. Benedict, 8 
 How. 107) to determine between judgment creditors in a court 
 of the United States, and an administrator holding under the 
 orders of a probate court of a state; in Wiswall v. Sampson, 14 
 How. 52, in favor of a receiver holding under the appointment of 
 a court of chancery of a state and a judgment creditor; in Peale; 
 V. Phipps, 14 How. 368, in favor of a trustee in possession, under 
 the order of a county court, against such a creditor ; and in Hagan 
 v. Lucas, 10 Pet. 400, between execution creditors issuing from 
 state and federal jurisdictions. The same principle has been 
 applied, in several state courts, in favor of the purchasers at judi- 
 cial sales of steamboats, and other [*47<5] crafts subject to liens 
 in the nature of admiralty liens. Steamboat Rover v. Stiles, 5 
 Blackf. (Ind.) 48^ -jSteamboat Raritan v. Smith, 10 Mo. 527; 
 George v. Skeates, 19 Ala. 738; and is recognized in the courts 
 of common law and admiralty in Great Britain. Payne v. Drewe, 
 4 East. 523 ; 2 Wms. Ex'rs, 888 ; The Saracen, 9 Eng. Admiralty 
 Rep. 451, 2 W. Rob. 451. * * * 
 
 The instruction of the district court is erroneous, and its 
 judgment is therefore 
 
 Reversed and cause remanded. 
 
456 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 Where the process created a lien from the delivery of it to the offi- 
 cer for execution, an execution was issued on a judgment of a justice of 
 the peace and placed in the hands of a constable. Afterward an attach- 
 ment was issued from the circuit court in favor of another creditor of 
 the same debtor and given to the sheriff, who immediately seized the 
 debtor's property thereon. The constable then returned his writ: "No 
 goods except in the hands of the sheriff, which he refuses to relin- 
 quish." Then the creditor under the justice judgment filed a motion in 
 the circuit court to order the sheriff to pay to him sufficient of the pro- 
 ceeds of the sale of said property to satisfy his execution. The order 
 of the circuit court denying this motion was affirmed on appeal on the 
 authority of Payne v. Drewe. Field v. Milburn, a Mo. 488. See also 
 Leopold V. Godfrey, 50 Fed. Rep. 145; Derrick v. Cole, 60 Ark. 394, 30 
 S. W. 760; M'Call v. Tervor, 4 Blackf. (Ind.) 496; Milton v. Common- 
 monwealth, 40 Ky. (1 B. Mon.) 310; Adler v. Roth, 5 Fed. 895, 2 Mc- 
 Crary 447; Burnham v. Dickson, 5 Okl. 112; Sharpe v. Hunter, 47 Tenn. 
 (7 Cold.) 389. 
 
 In Illinois it was held that a sheriff having a fi. fa. in his hands 
 might take property from a constable who had levied on it under a 
 junior distress warrant and that the -^execution creditor was entitled to 
 be first satisfied out of the proceeds. The decisions are reviewed at 
 length. Rogers v. Dickey, 6 111. (1 Gilm.) 636; Hanchett v. Ives, 133 111. 
 332. See also: Wells v. Marshall, 4 Cowan 411. Compare Lynch v. 
 Hanahan, 9 Rich.L. (S.Car.) 186; Charron v. Boswell, 18 Gratt. (Va.)216; 
 Riddle v. Marshal of D. C, 1 Cranch C. C. 96, Fed. Cas. No 1180a. 
 
 REEVES V. SEBERN. 
 i6 Iowa 234, 85 Am. Dec. 513. (1864) 
 
 Under Modern American Rule as to When Lien Attaches — Purchasers 
 for Value with Notice — The Three Rules — Compara- 
 tive Extent to Which Each Prevails. 
 
 Action by Reeves & Co. against Sebern. From judgment 
 for plaintiffs defendant appeals. Affirmed. 
 
 Plaintiffs, who are creditors of K. & H., claimed the goods in 
 controversy by purchase from K. & H. Defendant, as sheriff, 
 claimed them under a subsequent levy on execution against K. & 
 H. The court below found that the execution was issued and in 
 defendant's hands for service, and that plaintiffs and K. knew 
 it before their purchase was made ; also, that the purchase was free 
 from fraud, and that the writ was not levied till nearly a month 
 after the purchase. 
 
 C. H. Conklin, for appellant. 
 
 /. C. Traer, for appellees. 
 
NATURE OF THE LIEN. 457 
 
 The Court by Dillon, /. * * * The defendant now claims 
 that the execution, though not levied, was a lien upon the goods- 
 and chattels of the debtor. We are aware of no decision in this 
 state fixing the time when the goods of an execution defendant 
 are bound, whether from the teste of the writ, or from its delivery 
 to the officer, or from actual levy only. This subject is now set- 
 tled by statute, which provides that execution shall bind only from 
 the time of levy. Laws 1862, p. 231. This act was not in force. 
 at the date of the transaction now in question, and hence it be- 
 comes necessary to state what the law was before the act was- 
 passed. 
 
 At the common law the writ of ti. fa. bound the chattels of 
 the defendant from its teste. As this had the unjust effect t& 
 overreach and defeat sales made even before the writ was deliv- 
 ered to the sheriff, it was remedied by the statute of 29 Charles II, 
 which made the writ binding from the time of its delivery to the 
 sheriff to be executed. We have very few if any decisions as to 
 what the common law in this country is, because the subject is, 
 in most of the states, regulated by express statute. Thus, in New 
 York, the statute of 29 Charles is re-enacted expressly: Ray v.' 
 Birdseye, 5 Denio 619, 624; see also Hotchkiss v. McVickar, 12 
 Johns. 403. So in Indiana : McCall v. Trevor, 4 Blackf . 496. Sa 
 in Illinois : Marshall v. Cunningham, 13 111. 20 ; Dodge v. Mack, 
 22 Id. 93. So in Kentucky: Tabb v. Harris, 4 Bibb, 29, 31 ; Ar~ 
 berry v. Noland, 2 J. J. Marsh. 421. So in Florida : Love v. Wil- 
 liams, 4 Fla. 126; and Maryland: Furlong v. Edwards, 3 Md. 99^ 
 and Alabama: McMahan v. Green, 12 Ala. 71, 46 Am. Dec. 242^ 
 Jordan v. Mead, 12 Ala. 247; Andress v. Roberts, 18 Ala. 387. 
 In Missouri, as between two officers, the first levy holds, though 
 the writ was delivered last. Field v. Milburn, 9 Mo. 488, 492. 
 In California and Ohio, by statute, the lien is from levy only. In 
 North Carolina, where the common law, as a body, is adopted, the 
 lien is from the teste : Harding v. Spivey, 8 Ired. 63 ; and Tennes- 
 see follows North Carolina : Union Bank v. McClung, 9 Humph. 
 91 ; Barnes v. Hayes, i Swan. 303. 
 
 1*237] In the absence of statute, we must conclude that the 
 execution is a lien either from its teste as at common law, or only 
 
458 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 from actual levy. We do not feel bound to adopt the unreasonable 
 and unjust rule of the ancient common law, so unjust, indeed, that 
 it had to be remedied by statute. 
 
 It does not accord with the policy of our laws, nor harmonize 
 with decisions on kindred subjects. The whole current of judicial 
 decisions, in this state, has ever, and, we think, most wisely, been 
 against secret constructive liens, especially when these are set up 
 against purchasers. Barney v. McCarty, .15 Iowa, 510; Barney 
 V. Little, Id., 527; Cummings v. Long, 16 Iowa, 41 ; Jones v. Peas- 
 Jey, 3 G. Greene, 52 ; Gimble v. Ackley, 12 Iowa, 27. And we are 
 not mistaken in saying that the professional sentiment in this state 
 has always been, that executions were not liens on chattels until 
 actual levy. 
 
 This was the opinion of the court below, and in this respect 
 
 there is no error. * * * 
 
 Affirmed. 
 ERSKINE V. STALEY. 
 38 Virginia (12 Leigh) 406. (1841.) 
 
 Under 29 Car. SI. — Lien of Garnishment — Garnishment v. Levy, Prior- 
 ity — Payne v. Drewe Distinguished. 
 
 Bill for injunction by Erskine & Eichelberger against Hamil- 
 ton & Cost, Staley, and the sheriff of Jefferson county. From a 
 ■decree dissolving the preliminary injunction granted on filing the 
 bill, complainants appeal. Reversed. 
 
 Erskine & Eichelberger sued Staley by foreign attachment 
 in chancery serving J. G. Johnson as garnishee, July 14, 1837, 
 for goods in his hands belonging to Staley. Afterward Hamilton 
 & Cost, having sued Staley by capias which was returned nan est 
 inventus, were awarded an attachment to which the sheriff re- 
 turned: "Levied Aug. 9th, 1837, o'^ sundry household furniture 
 and store goods, * * * which were previously attached in the 
 hands of J. G. Johnson by foreign attachment and surrendered by 
 said Johnson to me subject to said attachment." Hamilton & 
 Cost, having obtained judgment and an order to the sheriff to sell 
 the goods in his hands to satisfy said judgment and costs, com- 
 plainants exhibited this bill at the November term ( 1837), praying 
 that the sale be restrained and claiming priority. 
 
 Lyon & Stanard, for complainants. 
 
NATURE OF THE LIEN. 459 
 
 Robinson, for defendants, insisted that this case was con- 
 trolled by Payne v. Dreive, because complainants had made no 
 levy, citing other cases also. 
 
 The Court by Allen, J. * * * The foreign attachment was 
 first executed ; and the only question of interest presented by the 
 -case, is, whether a creditor coming by operation of law, after the 
 service of the subpoena in chancery on the home defendant, is en- 
 titled to priority? 
 
 This court has decided, in the case of M'Kim v. Fultons, 
 •6 Call io6, that the endorsement by the clerk, according to the 
 practice of the country, is sufficient to restrain the application of 
 the effects to any other use, and is a substitute for the formal order 
 required by the words of the statute ; and that case, and the case of 
 Williamson v. Bowie 6 Munf. 76, decide, that a subpoena so en- 
 dorsed, operates, from the date of its service, to inhibit any aliena- 
 tion by the absent debtor. According to these adjudications, the 
 lien acquired by the service of the subpoena cannot be defeated by 
 any a:ct of the debtor, except in the manner prescribed by the 
 statute : namely, the giving bond to abide by the decree. This be- 
 ing the law, it would seem to follow, almost as a necessary conse- 
 quence, that no subsequent creditor coming in, not by the act of 
 the party, but under the operation of law, can defeat the lien. As 
 a general rule, the creditor is entitled to those rights only, which 
 the debtor held. Even in the case [*422'\ of a fraudulent deed, 
 though it is good as between the parties, it is void as against the 
 creditor; as to him the property remains in the debtor, as if no 
 -deed had been executed. Therefore, when it is conceded that the 
 debtor, by no transfer or incumbrance, can defeat the lien of the 
 •attachment ; that assignees coming in under him must take subject 
 to the rights of the attaching creditor ; if it is held, that a creditor 
 'Coming in afterwards by operation of law is to be first satisfied, he 
 will acquire rights which the debtor himself had not. If the 
 statute is to receive such a construction, cases might, and, in prac- 
 tice, probably would occur, presenting strange anomalies. Ihe 
 •attaching creditor's lien is superior to the claim of the bona Me 
 -assignee ; the right of the bona fide assignee is confessedly superior 
 to that of a creditor whose execution has not been delivered to the 
 
460 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 sheriff before the assignment or transfer; but if the principle con- 
 tended for by the appellees is law, the creditor by execution, who 
 is subordinate to the assignee, is to be preferred to the attaching 
 ci editor, whose claim is superior to that of the assignee. 
 
 It was argued, that the lien created by the service of the at- 
 tachment in chancery, results from an application of the doctrine 
 of lis pendens; that this authorizes the court to prevent the party 
 himself from defeating the creditor by any alienation of the sub- 
 ject, but does not extend to the case of a creditor coming in by act 
 of law. The proceeding by foreign attachment is a proceeding in 
 rem; the jurisdiction rests upon the fact, that the absent debtor 
 has effects subject to the control of the court ; and if no effects are 
 found, the court has no authority to proceed. But when its juris- 
 diction once attaches, the court, according to well settled princi- 
 ples, may go on to do justice. If, however, the effects of the 
 absent debtor may be taken from under its control by another 
 creditor coming with a fi. fa., the foundation upon which its juris- 
 diction rested will have been swept 1*4^3] away, and the plaintiff 
 will be without remedy. So that, even admitting we were to look 
 to the doctrine of lis pendens for the source of the lien of the 
 attaching creditor, it seems to me, in a case like this of a proceed- 
 ing in rem, where the jurisdiction of the court depends upon the 
 existence of effects subject to its control, if that jurisdiction has 
 once properly attached, it can never be ousted either by the act 
 of the party himself or of any third person. The terms of 
 the statute, it seems to me, will admit of no other construc- 
 tion ; "the court may order the debts to be paid and 
 effects to be delivered, to the plaintiff, upon his giving security 
 for the return thereof, to such person and in such manner as the 
 court shall direct." He holds them subject to the order of the 
 court alone. Would it be any defence in an action upon the bond 
 given by him to return them, to say they were taken from him by 
 a subsequent execution? * * * Time by the law is given to the 
 absent defendant to show cause against the decree. The effects 
 can be held by the court until the period expires, and then, I pre- 
 sume, as the decree has become absolute, there could be no doubt 
 of the propriety of applying the 1*4^4] effects to the discharge of 
 
NATURE OF THE LIEN. 461 
 
 the decree, without requiring security. But under the construc- 
 tion contended for, it would be in the power of any creditor getting 
 a judgment by law, to levy on these effects, and so deprive the 
 attaching creditor of the fruit of his decree. * * * 
 
 It was contended, that as there was no actual seizure, no lev> 
 on specific effects, which were thus placed under the custody of 
 law, the property in the goods remained in the debtor, and being 
 in him other creditors might levy on them. But granting that no 
 actual seizure is made so as to divert the property of the debtor, 
 the consequence deduced does not follow. The legal property of 
 goods may remain in one, subject to the equitable lien of another, 
 and third persons coming under the first, must occupy his position 
 and hold subject to the lien. For many purposes the property of 
 the goods may rest in the debtor, notwithstanding the service of 
 the attachment. Thus, in several attachments against the same 
 absconding debtor, the attachments are levied successively on the 
 same goods as his property, and they are paid according to the 
 dates of their respective levies. So with executions. And in the 
 case of foreign attachment, where the real estate is proceeded 
 against, there is no seizure, no divesting of title, and from the 
 nature of the subject cannot be. 
 
 But, in truth, I look upon the service of the attachment as 
 equivalent to an actual levy. The effects may remain in the hands 
 of the garnishee, but under the control of the court : he acquires a 
 special property in them as agent of the court : and this property 
 is sufficient to protect him against the claims of the owner ; it is his 
 duty so to protect himself ; and upon his failure, a personal decree 
 will go against him. The property of the goods is so far divested 
 as to prevent a recovery by the party. And this distinguishes the 
 case from Payne v. Drewe, which has been so much pressed on the 
 court. * * * Lord Ellenborough, without deciding what was the 
 effect of a writ of sequestration, * * * held, that it did not so vest 
 the property in the goods absolutely, as to defeat a sale made by 
 the sheriff under an execution ; that the property of the goods was 
 not altered, but continued in the defendant till execution executed. 
 And this, it seems to me, is very clear from this consideration, that 
 if no levy is made before the return day, the goods cease to be 
 
462 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 bound, and an alienation made whilst the writ was in force could 
 not be overreached by a levy on a subsequent writ. The writ, 
 when executed, related at common law to the time of the teste, 
 and now to the time of the delivery, so as to overreach interme- 
 diate alienations. Having decided that the sheriff could have 
 levied, and made a valid sale, 1*426] notwithstanding the writ of 
 sequestration in the hands of the sequestrators, he proceeded to 
 show, that, under the special circumstances of that case, the sheriff 
 would not have been liable to the action of the party grieved. If, 
 however, I am right in supposing that a foreign attachment is 
 tantamount to an actual levy, that it places the effects under the 
 control of the court, and so far vests the property in the garnishee 
 or agent of the court, as to defeat all claims or transfers of the 
 defendant, — the case stands upon wholly different grounds. * * * 
 On the facts in this case, I think the proceeding by way of 
 foreign attachment was fully warranted ; and that the application 
 to the court to enjoin the sale under the order of sale in Hamilton 
 & Cost's action at law, was regular, and indeed the only remedy 
 the plaintiffs in the foreign attachment could resort to. [*42/] 
 
 I think, therefore, the court below erred in dissolving the 
 injunction. * * * The other judges concurred. 
 
 Decree reversed, and cause remanded. 
 The remark in the opinion that injunction was complainant's "only 
 remedy" is mere dictum and clearly not well advised. The garnishee 
 might sue for the taking of the property if he had not consented, (Deno 
 V. Thomas, 64 Vt. 358, 24 Atl. 140), or the garnishing creditor might 
 recover the value of the property in trover against the sheriff [Rock- 
 wood V. Varnum, 17 Pick. (Mass.) 289] or against the execution credi- 
 tors themselves, if they were parties to the levy (Focke v. Blum, 82 
 Tex. 436, 17 S. W. 770, and cases cited therein), or, having recovered 
 judgment against the garnishee, might have execution thereon against 
 the garnishee's own property for his failure to produce the garnished 
 property, unless the garnishee has, without avail, exhausted all legal 
 means to prevent the property being taken from him (Johann v. Ruf- 
 ener, 32 Wis. 195), for it is the garnishee's duty as an officer of the 
 court to retain the property and dispose of it as his court shall direct. 
 Stiles V. Davis, 66 U. S. (1 Black) 101. 
 
 Nature of the Garnishing Creditor's Lien or Right. Under 
 facts very much like those in Erskine v.. Staley, the supreme 
 court of Nebraska held the garnishing creditor entitled to the appoint- 
 ment of a receiver to take possession of the property which the gar- 
 nishee threatened to abandon. Maxwell, C. J., saying: "Neither can 
 
NATURE OF THE LIEN. 463- 
 
 the right be restricted to the personal liability of the garnishee, as he 
 might be insolvent or unable to pay the value of the , property. We 
 hold, therefore, that garnishment is an attachment of the goods in the 
 hands of the garnishee. * * * In this case it is alleged in the petition 
 that a number of executions had been levied by the defendants * * * 
 and that a sale thereunder would defeat the plaintiff's claims. In such, 
 a case while the plaintiffs have a remedy at law by bringing separate 
 actions against the defendants, still it would not be adequate. An 
 action in equity, therefore, is the proper remedy to prevent a multi- 
 plicity of suits, and determine the priorities of the several liens of the 
 parties. Sec. 213 of the code provides that 'The court, or any judge 
 thereof at chambers may, on application of the plaintiff and on good 
 cause shown, appoint a receiver * * * ' gee. 214 provides that 'Such 
 receiver shall take possession * • * ' These sections apply alone to 
 property taken under an attachment. Where the garnishee abandons 
 the property, however, as is alleged in the petition in this case, there 
 is no doubt of the power of the court to appoint a suitable person to 
 take charge of the same. The court possesses this power independ- 
 ently of the statute. The property being a trust fund for the satisfac- 
 tion of the judgment the court may, when necessary for the preserva- 
 tion of the property, appoint a trustee to take charge of the same." 
 Northfield Knife Co. v. Sharpleigh, 24 Neb. 635, 39 N. W. 788. See also 
 Almy V. Piatt, 16 Wis., 169 ; Dahlman v. Greenwood, 99 Wis. 163, 74 N. 
 W. 215; Barton v. Spencer, 3 Okl. 270, 41 Pac. 605. 
 
 Contra. I believe the strongest cases against a lien being created 
 by garnishment are the following: Blgelow v. Andress, 31, 111. 322, in 
 which it was held that because the plaintiff acquired only the right to 
 the personal liability of the garnishee, a court of equity would not inter- 
 vene by injunction to preserve the property in his hands. Johnson v. 
 Gorham, 6 Cal. 195, 65 Am. Dec. 501, apparently conflicts with Erskine 
 V. Staley, and perhaps the court adopted the view urged by defendant's 
 counsel in this case. The court awarded the fund to the creditor whose 
 execution was levied on the property, after the garnishment, saying- 
 "The service of a copy of execution and notice of garnishment upon a 
 third party, constitutes no lien on property of the debtor in his hands 
 capable of manual delivery." Afterward a decision more favorable to 
 the garnishing creditor's lien was rendered by the same court. A grow- 
 ing crop was attached as "property not capable of manual delivery" 
 by "leaving with the person owing such debt or having in his posses- 
 sion" such property (In this case the defendant himself), "a copy of the 
 writ, and a notice," etc. Then the debtor mortgaged the unharvested 
 crop; then the sheriff took it under his writ, and then the mortgagee's 
 assignee sued him for conversion; but the court held that the attach- 
 ment lien was the better title. Raventas v. Green, 57 Cal. 254. 
 
 It has been held that garnishment does not give such a lien as to 
 enable the creditor to maintain a creditor's bill to ascertain the title to 
 the property. Hunt J., dissenting. Wilson v. Harris, 21 Mont. 374, 54 
 Pac. 46. To same effect see Childs v. Carlstein Co., 76 Fed. Rep. 86. 
 
464 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 11. HOW THE LIENS MAY BE LOST OR BECOME SUBORDI- 
 NATE. 
 
 Under this head read again: Cooper v. Reynolds, ante, 15; 
 Windsor v. McVeigh, ante, 38; Allen v. Hall, ante, 140; Spring 
 V. Ayer, ante, 197 ; Sutton v. Hasey, ante, 198 ; Smith v. Osgood, 
 ante, 318; Commonwealth v. Magee, ante, 307; McGregor v. 
 Brown, ante, 342 ; Payne v. Drewe, ante, 338 ; Conn v. Caldwell, 
 ante, 425 ; Hagan v. Lucas, ante, 418 ; Smallcomb v. Crojj, ante, 
 445; Kennon v. Ficklin, ante, 451; Richards v. Morris C. & B. 
 ■Co., ante, 543 ; and Pulliam v. Osborne, ante, 454. 
 
 ACTON V. KNOWLES. 
 14 Ohio St. 18. (1862) 
 
 Sheriffs — Liability for Failure to Make Amount of Execution — Diligence 
 
 Required of Execution Creditor — How far Affected by Negligence 
 
 of Officer — Jury's Province — Duty of Officer and Creditor 
 
 If Not Tin^e to Sell before Return Day. 
 
 Action by Acton & Woodnutt, against Horace C. Knowles, 
 sheriff of Athens county, for making a false return to two execu- 
 tions in favor of plaintiffs, one a fi. fa., the other a venditioni ex- 
 ponas, the returns complained of being that the stallion levied on 
 under plaintiff's H. fa. was subject to a previous levy by a former 
 sheriff in favor of another creditor, returned "not sold for want of 
 time." From judgment for defendant and order denying motion 
 for new trial, plaintiffs bring error. Reversed. 
 
 W. R. Golden, for plaintiffs. 
 
 A. G. Brown and lames Wilcox, for defendant. 
 
 The Court by Peck, C. /. * * * Ch. J. Savage, in Russell v. 
 Gibbs, 5 Cow. 390, examines, at some length, the English and New 
 "York cases as to the effect of delay in the sale of property levied 
 ■on execution, and arrives at the conclusion, that mere indulgence 
 or negligence of the sheriff to proceed and sell, without any act of 
 the plaintiff, will not render the levy fraudulent as to subsequent 
 executions ; but that the rule is otherwise where the creditor him- 
 :self directs or sanctions such delay. It is also said in that case, 
 
HOW THE LIEN MAY BE LOST. 465 
 
 that an unreasonable delay or omission to urge the sheriff to do his 
 duty, may, in some cases, be construed into a consent on the part 
 of the creditor to such delay, and thus postpone his lien to that of 
 junior executions. These positions, thus qualified, are fully sus- 
 tained by the authorities cited in the opinion, and supported by 
 subsequent decisions in that and other states. Butler v. Maynard, 
 II Wend. 548, 552 ; Benjamin v. Smith, 4 lb. 332 ; Knower v. Bar- 
 nard, 5 Hill, 377; Herkimer County Bank v. Brown, 6 lb. 232; 
 U. S. V. Conyngham, 4 Dall. (Pa.) 358; Gwynne on Sheriffs, 212 
 and cases cited. 
 
 It is said by Branson, J., in 6 Hill, supra, that "in all the cases 
 where the first execution haj lost its preference, something was 
 said by the plaintiff or his attorney, at the time the execution was 
 issued, or at seme subsequent period, from which [*28] the sheriff 
 could reasonably infer that he was authorized to give indulgence, 
 instead of complying strictly with the command of the writ." 
 
 In New York the common law doctrine prevails, that the 
 execution of the writ is an entirety, consequently, the officer 
 making a levy on execution, must complete the duty by a sale in 
 pursuance of its mandate, and a subsequent venditioni exponas, or 
 distringas, if issued to him, confers no new or additional authority, 
 but only spurs him on, it is said, to a speedier execution of the 
 power already conferred. Under our practice, however, a sheriff 
 who has returned the writ "levied, but not sold for want of time," 
 can not be required to proceed and sell until a vendi. is placed in 
 his hands, for that purpose, by the creditor in execution. 
 
 The rule deducible from the cases cited, as applicable to our 
 practice, in which, after return of execution "not sold for want of 
 time," the plaintiff must himself initiate the further proceedings 
 to sell, is this, — that if there has been an unreasonable delay in 
 completing the execution by a sale, at the instance and by the 
 authority of the plaintiff, such unreasonable delay may have the 
 effect of postponing his, in a certain sense, dormant process, to 
 that of a more vigilant though junior execution creditor. Mere 
 delay, if not unreasonably protracted, will not have such effect; 
 but where the delay is unreasonable, in view of the rights of other 
 creditors, the character and condition of the property levied on, 
 and the uses to which it is, in the meantime, applied, it is just and 
 
 30 
 
466 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 proper that a limit should be placed upon the indulgence of the 
 creditor holding such prior lien. 
 
 The question whether such delay was reasonable or unreason- 
 able in a given case, depends upon its particular circumstances and 
 is therefore peculiarly a question for the jury, under the instruc- 
 tions of the court. It is manifest that a delay which is unreason- 
 able in one case, by reason of the condition of the parties or the 
 subject matter of the levy, would, under other circumstances, be 
 altogether reasonable and proper. 
 
 The return of the property to the defendant after levy, to be 
 kept by him until required for sale, either with or without [*2q] 
 security for its re-delivery, does not pei- se avoid the levy. The 
 debtor thereby became the bailee of the property, and the officer 
 was still constructively in possession. But such fact, coupled with 
 others, relating to the intended duration of such possession ; the 
 authority delegated to the debtor or exercised by him with the 
 knowledge and assent of the sheriff; the uses to which it was, in 
 the meantime, to be applied ; the benefits, if any, resulting from its 
 custody, and the subsequent delay in bringing the property to sale, 
 may be of much significance in determining whether the levy was 
 not, in part at least, designed to protect the property from seizure 
 by other creditors, for the benefit of the debtor, and therefore 
 fraudulent as to them. 
 
 In the case at bar, an execution in favor of the Exchange 
 Bank of Columbus was levied September ii, 1857, upon a stallion, 
 the property of Currier, and the execution thereupon returned to 
 JFranklin common pleas, "not sold for want of time." No further 
 -execution was issued until November 3, 1858, nearly fourteen 
 -months after return of the first, and more than four months after 
 a levy by plaintiffs upon the same property. The sheriff 
 upon making the levy returned the horse to defendant Cur- 
 rier, and permitted him to hire the horse out the ensuing season 
 for his own benefit, the profits greatly exceeding all expenses of 
 keeping, and never interposed to prohibit such use, or claim for 
 .the execution creditor any part of the profits arising therefrom. 
 
 The officers of the bank may not have known how the horse 
 was disposed of ; but if so, they were willfully blind. The infor- 
 
HOW THE LIEN MAY BE LOST. 467 
 
 mation conveyed by the return was sufficient to put them, as pru- 
 dent men, upon inquiry as to the temporary disposition of the 
 horse. The question would naturally occur, how and at whose 
 expense is this horse to be supported while awaiting a sale ? And 
 the answer to such inquiry, would, at once, have put them in pos- 
 session of the facts, and rendered them responsible for further 
 continuance of that condition of things. If, on the other hand, the 
 bank and its officers were truly ignorant of the temporary dispo- 
 sition of the horse, and the authority conferred upon Currier, and 
 are not chargeable [*3o] with notice of the acts of the officer in 
 making disposition of the property levied on, which we by no 
 means concede, still a failure by them for more than fourteen 
 months thereafter to offer the horse for sale, would be a circum- 
 stance for the consideration of the jury, as tending to show that 
 one, if not the principal object of the levy and its prolongation, 
 was to shield the property from a seizure by other creditors, for 
 the benefit of the debtor. 
 
 In view of these circumstances it was error, we conceive, in 
 the court to charge the jury, either as matter of law or as a fore- 
 gone conclusion of fact, that the levy of September ii, 1857, was, 
 as against the plaintiffs, a valid and subsisting levy in June, 
 1858, when the horse was seized under their execution. 
 
 It wa-s a question of fact peculiarly within the province of the 
 jury, to determine, under all the circumstances before them tend- 
 ing to show an abuse or perversion of the process of the court, and 
 should have been submitted to them under proper instructions. 
 
 Judgment reversed and cause remanded. 
 
 To same effect see McGinnis v. Prieson, 85 Pa. St. 111. 
 
 This looks like a clear case under the rule as stated by the court, 
 which is as generally stated. Nevertheless some courts hold to a much 
 stricter rule. For example, in a recent case, the first creditor was held 
 to have lost his priority by reason of consenting to a postponement of 
 the sale from Jan. 22 to Jan. 29, and then to Feb. 8, and then to Feb. 11, 
 and then to Feb. 13, to enable the debtor to get money to make pay- 
 ment and thus save his property, it being found that the action of the 
 creditor was prompted by kindness to the debtor, without intent to 
 delay or defraud other creditors, and although other creditors were not 
 prejudiced thereby. Sweetser y. Matson, 153 111. 568, 46 Am. St. Rep. 
 fill, 39 N. E. 1086. 
 
468 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 EVANS V. BARNES. ' 
 32 Tennessee (2 Swan) 291. (1852) 
 
 Executions — Effect of Taking Out New Writ and Mai<ing Second Levy — 
 
 Power to Sell After Return Day — Power of Sheriff After Term of 
 
 Office Expires — Character of Venditioni Exponas — When Lien 
 
 Attaches, Rights of Bona Fide Purchasers. 
 
 Trover by Evans against Barnes for cotton mentioned in the 
 Opinion. From judgment for defendant plaintiff brings error- 
 Affirmed. 
 
 Meigs, for plaintiff. 
 
 Cox, for defendant. 
 
 The Court by Caruthers, J . On the 8th day of November, 
 1850, the plaintiff bought of Ransford McGregor the six bales of 
 cotton for which this action of trover was brought. On the same- 
 day the clerk of Rutherford circuit court issued an execution, 
 on a judgment in favor of B. Ferguson, against said McGregor,, 
 tested July term, 1850, addressed to the defendant as sheriff of 
 Davidson county, who, by his deputy, levied the same upon the 
 cotton on the i ith of November, 1850, the return day of the execu- 
 tion. This writ was returned, with the levy, to the November 
 term, [*^P5] from which another fieri facias issued, tested second 
 Monday of November, 1850, on same judgment, which came to 
 the hands of defendant on November 20th, and was on same day 
 levied upon the cotton, which was sold, December 5th, for $355.73, 
 as appears by the return on the last iieri facias. It does not ap- 
 pear by whom the last execution was ordered out. * * * 
 
 The levy of the execution vested in the sheriff a special prop- 
 erty in the cotton, and was a satisfaction to the extent of its value. 
 He became liable to the plaintiff in the execution, and the debt was- 
 extinguished for that amount. The execution was a lien from it^. 
 test, second Monday in July, 1850, and overreached the 
 title by purchase of the plaintiff's. The power of the sheriff 
 to sell the property still continued after the return of the writ, and 
 even after the expiration of his term of office. Overton v. Per- 
 kins, ID Yerg. 328. The authorities all concur in this position, in 
 cases of levies upon personal estate. It is otherwise when the levy- 
 is upon land. 
 
HOW THE LIEN MAY BE LOST. 469 
 
 But it is contended in this case that the sale having been made 
 under an alias fieri facias, which was issued from the November 
 term, 1850, of Rutherford circuit court, and tested on the twelfth 
 day of that month, which was after the purchase of the plaintiff's, 
 the first levy was waived, and the right by purchase must prevail. 
 We do not think so. It is true that the plaintiff in the execution 
 might waive the benefit of a levy in his favor [*^p<^] and release 
 the sheriff from his liability and the property from the custody of 
 the law, in which case the original owner would have the power to 
 make a valid sale of it. But such waiver must be distinctly and 
 clearly proved. It is not enough, to produce this effect, that an- 
 other fieri facias was issued, which the sheriff re-levies upon the 
 same property, and makes his sale upon it. He had a perfect 
 right to sell, by virtue of the title vested in him by the first levy, 
 without any execution ; or, he might have retained the first execu- 
 tion and sold under it during the term to which it was returnable, 
 or after the term, when it was functus officio. The issue of an 
 alias, or another order of sale, was not necessary to continue his 
 right under the previous levy. Even the taking of a delivery bond, 
 on a levy afterwards made on the same execution, or an alias, 
 without forfeiture, would not be a waiver of his title, or a forfeit- 
 ure of his right to sell under the first levy. Lester's Case, 4 
 Humph. 383. The issuance and use of the last execution was 
 merely nugatory and useless ; at least it did not affect his right to 
 the property derived from his original levy, which related to, and 
 bound, the property from the teste of the first execution, on the 
 second Monday in July, 1850. 
 
 Let the judgment of the circuit court be affirmed. 
 
 To the same effect as to sale under alias Instead of vendi., see Bou- 
 ton V. Lord, 10 Ohio, St. 453; West v. St. John, 63 Iowa, 287, 19 N. W. 
 238; Friyer v. McNaughton, 110 Mich. 22, 67 N. W. 978; Menge v. 
 "Wiley, 100 Pa. St. 617; Wilson v. Gilbert, 58 111. App. 651, 161 111. -49. 
 Contra Scott v. Hill, 2 Humph. 143. Same as to attachment Wright 
 T. Westheimer, 2 Idaho 962, 35 Am. St. 269. 
 
470 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 ROCKHILL V. HANNA. 
 S6 United States (15 Howard) 189. (1853) 
 
 Judgment Liens — Rights of Priority, Fractions of a Day — Election of 
 Remedies — Effect of First Execution. 
 
 Action by Thos. C. Rockhill et al. against Robert Hanna et al., 
 on a U. S. marshal's bond, to recover the proceeds of an execution 
 sale. The case is certified here by the U. S. circuit court for 
 district of Indiana, for the opinion of this court. Rockhill et al., 
 Price et al. and Siter et al., each recovered judgments against John 
 Allen, Nov. 19, 1838. Price and Siter each took out H. fas. which 
 were levied on Allen's land. But previous thereto Rockhill had 
 taken out ca. sa. on which Allen was imprisoned till discharged by 
 the passage of a law in Indiana abolishing imprisonment for debt. 
 Rockhill then took out H. fa. which was levied on the land pre- 
 viously taken on the other ii. fas. The land being sold under these 
 executions, and the proceeds being insufficient to pay all, Rockhill 
 claimed that the money should be first applied on his judgment. 
 
 Thompson, Morrison and Mayor, for plaintiffs. 
 
 0. H. Smith, for defendants. 
 
 The Court by Grier, /. * * * In the state of Indiana judg- 
 ments are liens upon "the real estate of the persons against whom 
 such judgments may be rendered, from the day of the rendition 
 thereof." As the statute provides for no fractions of a day, it fol- 
 lows that all judgements entered on the same day have equal rights, 
 and one cannot claim priority over the other. In England, when 
 several judgments are entered to the same term, (and by fiction of 
 law, the term consists of but one day,) the judgment creditor, who 
 first extends the land by elegit, is thereby entitled to be first satis- 
 fied out of it. The case would be much stronger, too, in favor of 
 the first elegit, if one of three judgments had levied a H. fa. on the 
 goods and chattels of the defendant, the second taken his body on 
 ca. sa., and the third laid his elegit on his land. For each 
 one, having elected a dififerent remedy, would be entitled to a pre- 
 cedence in that which he has elected. This principle of the com- 
 mon law has been adopted by the courts of New York, as is seen 
 in the cases of Adams v. Dyer, 8 Johns. 350, and Waterman v. 
 Haskin, 1 1 Johns. 228 ; and also by the supreme court of Indiana, 
 
HOW THE LIEN MAY BE LOST. 471 
 
 in Michaels v. Boyd, Smith loo, where it is said, the mere delivery 
 of an execution, as in case of personal property, will not give a 
 priority, but the execution first begun to be executed, shall be en- 
 titled to priority. 
 
 The application of these principles to the present case would 
 give the preference to the judgments of Siter and Price, which 
 were levied on the land five years before the plamtifif's levy on the 
 same. An execution levied on land, is begun to be executed, and 
 is an election of the remedy by sale of it; and [*Jpd] the mere 
 delay of the sale, if not fraudulent, injures no one and cannot post- 
 pone the rights of the creditor who has first seized the land and 
 taken it into the custody of the law for the purpose of obtaining 
 satisfaction of his judgment. If he has obtained a priority over 
 those whose liens are of equal date, by levying his execution, he is 
 not bound to commence a new race of diligence with those whose 
 rights are postponed to his own. There may be a different rule as 
 to a levy on personal property, where it is suffered to remain in the 
 hands of the debtor. But liens on real estate are matters of record 
 and notice to all the world, and have no other limit to their dura- 
 tion than that assigned by the law. 
 
 But we do not think it necessary to rest the decision of this 
 case, merely on the question of diligence, or to decide whether this 
 doctrine has been finally established as the law of Indiana. The 
 plaintiff's lien does not, by the statement of this case, stand on an 
 equality as to date with that of the other judgments. By electing 
 to take the body of his debtor in execution he has postponed his 
 lien, because the arrest operated in law as an extinguishment of 
 his judgment. It is true, if the debtor should die in prison, or be 
 discharged by act of the law without consent of the creditor, he 
 may have an action on the judgment, or leave to have other execu- 
 tions against the property of his debtor. The legal satisfaction 
 of the judgment, which for the time destroys its lien and postpones 
 his rights to those whose liens continue, is not a satisfaction of the 
 debt, but, as between the parties to the judgment, it operates as a 
 satisfaction thereof. The arrest waives and extinguishes all other 
 remedies on the goods or lands of the debtor while the imprison- 
 ment continues, and if the debtor be discharged by the consent of 
 
472 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 the creditor, the judgment is forever extinguished, and the plain- 
 tiff remitted to such contracts or securities as he has taken as the 
 price of the discharge. But if the plaintiff be remitted to other 
 remedies by a discharge of his debtor by act of law, or by an 
 escape, it will not operate to restore his lien on the debtor's prop- 
 erty, which he has elected to waive or abandon as against credi- 
 tors who have obtained a precedence during such suspension.^ The 
 case of Snead v. M'Coull, 12 How. 407, in this court, fully estab- 
 lishes this doctrine. It is to be found in the common law as early 
 as the Year Books, and is admitted to be the law in almost every 
 state in the union. See Year Book, 33 Henry VI. p. 48 ; Foster 
 v. Jackson, Hobart 52 ; Burnaby's case, i Strange, 653 ; Vigers v. 
 Aldrich, 4 Burr. 2482 ; Jaques v. Withy, 1 Term R. 557 ; Taylor v. 
 Waters, 5 Maule and Selwyn, 103; E,v parte Knowell, 13 Vesey, 
 Jr., 192 ; and in New York, Cooper v. Bigalow, 1 Cow. 56 ; Ran- 
 sovi V. Keys, 5 [*I97] Cow. 128; Sunderland v. Loder, 5 Wend. 
 58. In Pennsylvania, Sharpe v. Speckenagle, 3 Serg. & R. 463; 
 In Massachusetts, Little v. The Bank, 14 Mass. 443. 
 
 The insolvent law of Indiana which discharges the person of 
 the debtor from imprisonment upon his assigning all his property 
 for the benefit of his creditors, provides that his after acquired 
 property shall be liable to seizure, and also that liens previously 
 acquired shall not be affected by such assignment and discharge ; 
 but it does not affect to change the relative priority of lien credit- 
 ors, as it existed at the time of the discharge, or to take away from 
 any lien creditor his prior right of satisfaction, which had been 
 vested in him previous to such discharge. Neither the letter nor 
 spirit of the act will permit a construction by which a retrospective 
 operation would divest rights vested before its passage. 
 
 We are of opinion, therefore, that * * * the executions of 
 Siter & Co. and of Price & Co. are entitled to be first satisfied from 
 
 the proceeds of the sale. 
 
 So certified to the said circuit court. 
 To same effect on similar facts, Miller v. Starks, 13 Johns. (N. Y.) 
 517. A direction by the creditor to the sheriff to levy on certain property 
 
 'Jackson v. Benedict, 13 Johns. 533. Setting aside a return of "sat- 
 isfied" on a fi. fa. does not revive the judgment lien oa land so as to 
 defeat innocent mesne purchasers. Taylor v. Ranney, 4 Hill (N. Y.) 619. 
 
HOW THE LIEN MAY BE LOST. 473 
 
 is not an abandonment of his lien on the remainder, and the sheriff 
 who has levied on that part may at any time before the return-day levy 
 on and inventory other property, though the defendant has In the mean- 
 time assigned for the benefit of creditors, the writ being a lien from the 
 ■date of its delivery. Moses v. Thomas, 26 N. J. L. 124. 
 
 ERICKSON V. DULUTH, SOUTH SHORE & ATLANTIC RY. CO. 
 los Michigan 415, 63 N. W. 420. . (1895) 
 
 Garnishment — Effect of Non-Suit in IVIain Action — Effect of Appeal- 
 Powers of Lower Court While Appeal Is Pending — Garnish- 
 ment an Action or an Ancillary Proceeding. 
 
 Garnishment by Edward Erickson against Duluth, Soutfi 
 Shore & Atlantic Ry. Co. as garnishee of Mark Cuppernill, princi- 
 pal defendant. From judgment charging the garnishee it brings 
 error. Reversed. 
 
 Erickson sued Cuppernill in justice court and immediately 
 had the railway company summoned as garnishee, and it an- 
 swered confessing liability for $39.65. Thereafter the main action 
 was tried and the justice rendered judgment, no cause of action. 
 Plaintiff appealed to the circuit court, giving the garnish:e notice 
 thereof, and the justice returned the record in the main action to 
 the circuit court without the record of the garnishment proceed- 
 ings, and thereafter mailed a discharge to the garnishee, and still 
 later returned the garnishment record to the circuit court, showing 
 the discharge above mentioned. On the trial of the main action in 
 the circuit court judgment was rendered for plaintiff, and imme- 
 diately thereafter, on motion of plaintiff's attorney, judgment was 
 rendered against the garnishee for the amount admitted in its 
 answer. The garnishee having made no appearance in that court, 
 claims that it acted without jurisdiction in rendering judgment 
 against the garnishee because the judgment for defendant, by stat- 
 ute terminated the liability of the garnishee ; and at all events the 
 liability could not thereafter be enforced, because the statute does 
 not provide for any further proceedings. 
 
 A. E. Miller, for garnishee. 
 
 John R. Rood, for plaintiff. 
 
 The Court by Hooker, /. * * * While § 8041 (How. St.) treats 
 plaintiff's failure to recover "judgment against the defendant" as 
 a discontinuance, § 8038 provides that, after the "final determina- 
 
474 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 tion of the suit against the defendant,'' proceedings may be taken' 
 before the justice to obtain a judgment against the garnishee.- 
 This is consistent with the claim of plaintiff that the garnishee is- 
 not released by a judgment in favor of defendant unless it is final. 
 Section 8040 also contains the expression "final determination," 
 and prescribes the pleading and procedure against the garnishee 
 "after a final determination of the suit pending against the defend- 
 ant." It would require an unusually strict construction of § 8041, 
 and the exclusion of the other sections, to hold that the garnishee 
 would be released by a judgment in justice's court in the defend- 
 ant's favor, when the plaintiff had appealed. Such construction 
 would be at variance with the rule in attachment cases, it having 
 been held that a judgment against a plaintiff, appealed from, does- 
 not dissolve the attachment, but the lien of the writ continues until 
 the final disposition of the case against him. Treat v. Dunham,. 
 74 Mich. 114; Vanderhoof v. Prendergast, 94 Id. 18. By analogy 
 the same would be true in garnishment cases, unless the statute- 
 upon which the right depends indicates the contrary. The gar- 
 nishee, under this chapter, would be discharged when the action 
 was finally determined against the plaintiff, but he is chargeable- 
 with knowledge of the law which gives the right of appeal, and 
 that, if the appeal is taken, he is not released until final judgment. 
 The supreme court of Iowa has held that a judgment of nonsuit 
 dissolves an attachment, and that it will not be revived by the- 
 vacating of the judgment. Brown v. Harris, 2 G. Greene, (Iowa) 
 505; Harrow v. Lyon, 3 Id. 157, 159. See, also Clap v. Bell, 4 
 Mass. 99 ; Suydam v. Huggerford, 40 Mass, (23 Pick.) 465. But 
 the latter case recognizes {*4i9] the rule that the attachment is- 
 not dissolved where the plaintiff appeals. See, also, Sherrod v. 
 Davis, 17 Ala. 312; Danforth v. Rupert, 11 Iowa, 547, 551. Such 
 has already been shown to be the rule here. In Dolby v. Tingley,. 
 9 Neb. 412, 416, the court said: "Where no steps are taken to 
 dissolve the attachment, the garnishee is bound from the time of 
 service until final judgment." Chase v. Foster, 9 Iowa, 429 ; Ken- 
 nedy V. Tiernay, 14 R. I. 528, 530 ; Puff v. Huchter, 78 Ky. 146- 
 It is true that these decisions all depend upon the statutes of their 
 respective states, but they show the trend of the authorities when. 
 
HOW THE LIEN MAY BE LOST. 475 
 
 the statutes are open to the construction that the garnishee is- 
 bound until final judgment. 
 
 We have next to inquire concerning the effect of the new sec- 
 tion added in 1891 (Act No. 178, Laws of 1891, § 28), and the 
 justice's order under it. This section provides : "In all cases 
 where the defendant prevails or takes an appeal in the principal 
 suit, the court shall make an order releasing said moneys so gar- 
 nished. Said order shall be directed to the garnishee defendant, 
 and shall be delivered to the principal defendant * * * " 
 
 It must be read with those already discussed, for the latter 
 are not repealed. Unless we are to adhere to the defendant's con- 
 struction, viz., that this section means that the justice shall dis- 
 charge the garnishee in cases where the defendant prevails before 
 the justice in the principal suit, this section is not inconsistent with 
 the sections already discussed, and the construction herein placed 
 upon them. If it is to be so construed, it is inconsistent with them. 
 It is also noticeable that this section does not provide that the jus- 
 tice, but that the court, shall make the order of discharge, thus 
 putting it into the power of whatever court shall render the final 
 judgment to make this order. It seems to be intended that [*42o] 
 this order shall be made upon application of the principal defend- 
 ant, and for his benefit, and apparently was designed to facilitate 
 the collection of his claim from the garnishee, after the garnishee's 
 liability to the plaintiff should have ceased. We are therefore of 
 the opinion that the adverse judgment did not release the gar- 
 nishee from the plaintiff's claim. 
 
 Authorities will be found which indicate that the plaintiff 
 should have appealed from the order discharging the garnishee, 
 and that, not having done so, he cannot now question it. Such a 
 case is Brown v. Tuppeny, 24 Kan. 29. See, also, 8 Amer. & Eng. 
 Enc. Law, 1258. Under the statutes cited, the justice had no 
 authority to do more in the garnishee case than to take and file the 
 disclosure, and adjourn the proceeding until judgment should be 
 rendered; and we have already said that this means final judg- 
 ment. The appeal removed the principal case from his jurisdic- 
 tion, and thereafter only the circuit court had authority to make 
 the order of discharge. The order made by the justice was made 
 
476 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 before the appeal was taken, and was premature. He had no 
 authority to make it. He should have waited the statutory period 
 within which the plaintiff might appeal. His order was therefore 
 void, and it was not necessary for the plaintiff to appeal from it. 
 The case of Kennedy v. Tiernay, 14 R. I. 530, involves this ques- 
 tion. The court said : "The court is not called upon to pass upon 
 the liability of the garnishee until the plaintiff has established his 
 claim, and obtained a judgment against the defendant. If the 
 plaintiff fails in the suit against the defendant, the question of the 
 garnishee's liability does not arise." In this case the court held 
 that the appeal brought up the garnishee proceedings as incident 
 to the principal suit. 
 
 This brings us to the remaining question in the case, viz., 
 whether the garnishee proceeding was brought to [*42i] the cir- 
 cuit by the appeal of the principal suit, so that the circuit court 
 might enter a judgment against the garnishee. The authorities are 
 not harmonious upon this subject. Some cases — like the Rhode 
 Island case cited — hold this doctrine. Counsel for the plaintiff 
 cites several cases to the proposition that the garnishee proceeding 
 is ancillary to the principal case, and must, of necessity, follow it 
 when it is appealed. But we think this must depend upon the 
 statute, and that our statute clearly shows a contrary intention on 
 the part of the legislature. * * * 
 
 In our opinion, the statute contemplates that the action in jus- 
 tice's court against the garnishee should remain in abeyance pend- 
 ing the appeal in the principal case. After judgment the justice 
 might issue his summons to show cause, the issue could then be 
 joined, and proof of the circuit court judgment, when introduced, 
 would furnish the foundation for a judgment against the gar- 
 nishee. Inasmuch as this practice was not [*422] followed, we 
 have no alternative but to reverse the judgment. No new trial 
 will be necessary, as the circuit court has no jurisdiction of the 
 proceeding. 
 
 Reversed. 
 
 This is the only decision I am aware of holding that the garnish- 
 ment does not go with the main action if it survives, but a court of 
 error will not consider errors in the garnishment proceedings on error 
 from the judgment in the main action. Judgment discharging the gar- 
 
HOW THE LIEN MAY BE LOST. 477 
 
 nishee has been held not to be stayed by an appeal in the absence of 
 an express order preserving the plaintiffs lien. Maxwell v. Bank of 
 New Richmond, 101 Wis. 286, 77 N. W. 149; Webb v. Miller, 24 Miss. 
 638. 
 
 In Michigan, now. — "In all cases where the plaintiff shall appeal 
 * * * the justice * * * shall return all garnishment proceedings ancillary 
 to such suit, together with the main action to the court to which the 
 appeal is taken, and thereafter proceedings against the garnishees 
 may be conducted in said last mentioned court in the same manner in 
 all respects as if originally commenced therein." Comp. Laws, (1897) 
 § 1018. 
 
 Nearly all the decisions are that an appeal from the judg- 
 ment for defendant preserves the lien if plaintiff observes the proper 
 ^eps. Besides cases cited in the opinion see Munn v. Shannon, 86 
 Iowa, 363; Lowenstein v. Powell, 68 Miss. 73; Ryan Drug Co. v. Pea- 
 cock, 40 Minn. 470; Riley v. Nance, 97 Cal. 203; Caperton v. M'Corkle, 
 5 Gratton (Va.) 177. But compare Maxwell v. Bank of New Richmond,, 
 above, and Contra Camp v. Hllliard, 58 N. Hamp. 42. 
 
 ROCCO V. PARCZYK. 
 ^^ Tennessee (9 Lea) 328. (1882) 
 
 Appeal by Defendant — Effect on Previous Levy — Realty or Personalty, 
 
 Distinction — Garnishment an Action or an Ancillary Proceeding — 
 
 Jurisdiction of Lower Court While Appeal is Pending. 
 
 Garnishment on execution in favor of B. Rocco on his judg- 
 ment against Joseph Parczyk, the garnishees summoned being R. 
 D. Frayser, David Corrotti and Union and Planters' Banks. De- 
 fendant having appealed from the judgment against him, the exe- 
 cution was quashed and the garnishees discharged on motion, and 
 plaintiff appeals. 
 
 Jarnigan and Frayser, for plaintiff. 
 
 W. M. Randolph, for principal defendant. 
 
 The Court by McFarland, J. * * * The first question 
 arising upon this appeal is, whether the levy of the execution by 
 garnishments was discharged by the subsequent appeal in error of 
 the defendant in the judgment. Ordinarily the question cannot 
 arise, as no execution issues during the term, and an appeal in 
 error cannot be granted after the term has been adjourned. It can 
 only arise in [*555] cases where by special statute execution 
 may issue before the time for appealing has expired. 
 
 It is argued that the appeal in error does not vacate, but only 
 suspends the execution of the judgment below, and hence should 
 
478 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 not be held to displace or discharge any liens or rights acquired in 
 the meantime. It is assumed to be analogous to a case where a 
 writ of error and supersedeas issues after the levy of an execution, 
 .and it may be conceded that the analogy is complete. It may also 
 be conceded that the service of the garnishment fixes a lien upon 
 effects of the debtor or debt due to him from the garnishee equiv- 
 alent in this respect to an actual levy upon personal property. 
 
 We do not find that the effect of a writ of error and super- 
 sedeas from this court as to the levy of an execution issued upon 
 the judgment superseded has been decided. It has been decided, 
 however, that the issuance of an injunction discharges the lien 
 of an execution levied upon personal property, and authorizes the 
 officer to return the property to the debtor : Overton v. Perkins, 8 
 Tenn. (M. & Yer.) 367, 373. And such also has been held to be 
 the effect of a certiorari and supersedeas to bring up to the circuit 
 court the judgment of a justice of the peace: McCamy v. Law- 
 son, 40 Tenn. (3 Head) 256; Littleton v. Yost, 71 Tenn. (3 Lea) 
 267. This seems to us to be in principle identical with the question 
 before us. The effect of the supersedeas, it is true, is simply to 
 .supersede and suspend further proceedings and not to reverse or 
 undo what has been done, and so says Judge Caruthers in Mc- 
 Camy V. Lawson: "At [*334] first view it would seem that the 
 ■effect of the supersedeas should only be to suspend the sah, but 
 not to release the property ; and as an original question we might 
 "be inclined to so hold, but we consider the contrary to be too 
 well settled to be now disturbed by the cou'rts." This rule is dif- 
 ferent as to a levy upon real estate : See above case and Littleton 
 V. Yost, 3 Lea, 267. 
 
 The exception as to personal property is from necessity, for 
 it would ruin both debtor and creditor if the sheriff is to hold per- 
 sonal goods to the termination of an injunction bill in chancery, or 
 a writ of error and supersedeas in this court. No injury can 
 result to the creditor where bond and security is given, but it does 
 not alter the question that the process is obtained upon the pauper's 
 oath, as held in McCamy v. Lawson. 
 
 In a case like the present another difficulty would occur. At 
 the time the garnishment process was returned, the cause had been 
 
HOW THE LIEN MAY BE LOST. 479 
 
 "brought to this court by the appeal in error ; it was therefore clear 
 that the circuit court at that time had no jurisdiction to require the 
 answer from the garnishees, and to render judgment against them 
 if their answer should authorize a judgment. Any decree or judg- 
 ment rendered in the inferior court after the cause is in the su- 
 preme court by writ of error and supersedeas, is without jurisdic- 
 tion and void: Claiborne v. Crockett, 19 Tenn. (Meigs) 607. 
 
 Hence no steps could have been taken. At most, the court 
 could only supersede further proceedings. In the event the writ 
 of error and supersedeas should [*JJ5] be dismissed without final 
 judgment in this court, the circuit court might proceed, but the 
 process against the garnishees would probably in the meantime 
 have been discontinued. Besides, the practice is to render final 
 judgment and award execution from this court. * * * 
 
 If this proposition be considered doubtful, the result in this 
 case must be the same, as the answer of the garnishees does not 
 admit any liability. * * * [*Ji<5] 
 
 The judgment must therefore be affirmed. 
 
 Judge Cooper places his concurrence upon the latter ground. 
 
 In some cases the lien is held to be released by the appeal because 
 the sole object of the lien is to secure payment, and after the appeal 
 that is amply secured by the appeal bond. Otis v. Warren, 16 Mass. 
 53; Bushey v. Raths, 45 Mich. 181, 7 N. W. 802; St. Joseph &c. Ry. Co. 
 V. Casey, 14 Kan. 504; Parker v. Dean, 45 Miss. 408; Bla v. Welch, 9 
 Wis. 395. But in other cases it is held that the lien remains and the 
 appeal bond is a cumulative security. Magill v. Sauer, 20 Gratt. (Va.) 
 540. See also Collins v. Burns, 16 Colo. 7, 26 Pac. 145; McCants v 
 Rogers, 3 Brev. (S. Car.) 388, 1 Tread. 443; Peterson v. Wayne Circuit 
 Judge, 108 Mich. 608. 
 
 REID V. LINDSEY. 
 104 Pennsylvania St. 156. (1883) 
 
 Debt on bond of indemnity, by Lindsey, Sterrit & Co. against 
 George T. Van Doren, obligor, and Lewis Shanafelt and John C. 
 Reid, sureties, Reid only being served. From judgment for plain- 
 tiffs Reid brings error. Reversed. 
 
 The bond sued on was given by Van Doren as general as- 
 signee for creditors of David M. Sample, to obtain a stay of execu- 
 tion in favor of plaintiffs herein against said Sample, which, before 
 said assignment, had been levied on Sample's merchandise and 
 
480 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 Store fixtures, Van Doren having petitioned for said stay and that 
 the judgment be opened to let him show the judgment to be exces- 
 sive. Afterward the judgment was opened for that purpose, the 
 issue twice retried and judgment finally entered for plaintiff for 
 $822 instead of $923, the amount of the original judgment. In 
 the meantime Sample was adjudicated a bankrupt, but the assignee 
 in bankruptcy never interfered with the goods. 
 
 On the trial of the present action defendant offered to prove 
 the value of the property subject to the levy at the time the last 
 judgment was rendered to show that the greater part of it could 
 have been realized therefrom. This testimony was objected to on 
 the ground that by opening the judgment the lien of the levy was 
 discharged. The objection being sustained and exception taken 
 presents the only question before this court. 
 
 B. J. &■ A. B. Reid, for defendant Reid. 
 
 W. L. Corbett (J. H. & J. B. Patrick with him), for plaintiffs. 
 
 The Court by Green, J. We decided in Batdorif v. Focht, 44. 
 Pa. St. (8 Wr.) 195, that the lien of a fi. fa. upon goods levied on 
 under the writ was not lost by reason of a judicial order staying it 
 until a rule taken on part of the defendants should be disposed of, 
 although there was no stipulation in the order staying the writ that 
 its lien should remain. The very question was raised on the rec- 
 ord on distribution of the proceeds of the goods which were sold 
 on a subsequent writ, and the money was awarded to the first writ 
 upon the express ground that the lien was not lost. The same 
 doctrine was again declared in Bain v. Lyle, 68 Pa. St. ( 18 P. F. 
 S.) 60, and although in that case a bond had been given for the 
 return of the goods, it was held to be no substitute for the [*J(5o] 
 goods, and that the lien of the execution was not discharged. In 
 Kightlinger's Appeal, loi Pa. St. (5 Out.) 540, these cases were 
 recognized as full authority for the rule, and would certainly have 
 been applied had the circumstances of that case required it. It 
 was unnecessary to do so, but only because an order continuing the 
 lien had been made when the stay of proceedings was granted. 
 The rule itself was vindicated by Woodward, J., in Batdorif v. 
 Focht, by the proposition that the lien of fi. fa. after levy is a vested 
 lien which cannot be impaired by an interlocutory order. Al- 
 
HOW THE LIEN MAY BE LOST. 481 
 
 though, as was there said, it is the usual and proper practice to 
 direct that the lien shall remain, when a stay is ordered, it was held 
 to be unnecessary. The judge said, "But where, as in this case, it 
 is omitted, the lien must, nevertheless, be regarded as preserved, 
 for it is one of the vested legal rights of the plaintiff, and can no 
 more be sacrificed by an edict of the court without a hearing than 
 any of his other civil rights, whether of liberty or property." This 
 reasoning is so entirely satisfactory that it need not be extended. 
 In Batdorff v. Focht, and in Kightlinger's Appeal the lien was 
 made effective by awarding priority to the writs in the distribution 
 of the proceeds of the sale of the goods upon subsequent writs, al- 
 though in the latter case an interval of nearly four years elapsed 
 between the granting and discharge of the rule to open the judg- 
 ment. In Bain v. Lyle an execution against Austin was levied 
 upon goods which were claimed by Corry. The latter gave an 
 interpleader bond to the sheriff, and the goods were thereupon 
 delivered to him. Subsequently they were sold on an execution 
 against Corry, and purchased by a stranger. The interpleader 
 issue being decided in favor of Austin, it was held he might follow 
 the goods in the hands of the purchaser at the last sale. This, of 
 course, was upon the theory that the original execution creditor 
 could not be deprived of his recourse to the goods, notwithstand- 
 ing they had been given up to the adverse claimant upon his sub- 
 stituting an interpleader bond in their place. In the present case 
 the bond given was a general indemnity bond only, and in no sense 
 a substitute for the goods. It was for indemnity against all dam- 
 ages which might be sustained by reason of the order staying pro- 
 ceedings. It contained no provision for a return of the goods. 
 It is plain then that if any of the goods originally levied upon still 
 remained in the possession of the defendant in the execution, or of 
 his assignee, for the benefit of creditors, who is merely his repre- 
 sentative [In re Fulton's Est., 51 Pa. St. (i P. F. S.) 204], it was 
 the right of the plaintiff to seize them by another writ, and sell 
 them in satisfaction of his claim. If they had passed to an as- 
 signee in bankruptcy, which does not appear in the testimony, they 
 would still be subject to the lien of the levy originally made. The 
 offer [*J(5j] of proof was somewhat indefinite, but in substance, it 
 
482 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 was proposed to show the value of the goods which remained sub- 
 ject to the levy at the time of the final judgment, and that the 
 plaintiffs could have realized the greater part of their judgment 
 out of personal property which remained subject to the levy. This 
 offer was rejected on the ground that the lien of the execution was 
 discharged, and that the property had passed to an assignee for 
 the benefit of creditors, and afterward to an assignee in bank- 
 ruptcy. This was an insufficient objection, and the learned court 
 below was in error in rejecting the offer, and the judgment must 
 therefore be reversed. The evidence offered was material because 
 it might show that the sureties in the indemnity bond were released 
 in whole or in part by the omission of the plaintiffs to seize and sell 
 the remaining goods. 
 
 Judgment reversed and venire de novo awarded. 
 
 This case must be distinguished from Field v. MacuUar, ante, p. 432,. 
 In which the judgment was reversed on motion of the judgment debtor. 
 As there can be no execution without a judgment to be executed it is 
 clear that if the judgment is set aside the execution and all proceed- 
 ings thereon must fall. See Karr v. Schade, 75 Tenn. (7 Lea) 294; 
 Spauldlng v. Lyon, 2 Abb. New Cas. (N. Y.) 203; May v. Cooper, 24 
 Hun (N. Y.), 7. Thus it was held that an execution on a judgment, 
 against three was vacated by reversing the judgment as to one of the- 
 defendants. Phillips v. Wheeler, 67 N. Y. 104. But in the present case 
 the judgment remained so far as the judgment defendant was con- 
 cerned. All that was done was to allow a claimant of the goods to- 
 show a defense. Compare, Richards v. Morris C. & B. Co., ante, 453. 
 
 While Reid v. Lindsey and Rocco v. Pa-rczyk, above, might per- 
 haps be reconciled with each other, the decisions cited in them could; 
 not. At common law a writ of error operated as a supersedeas from 
 the time of its allowance without any special order to that effect, and 
 it is only where similar operation is given to the statutory appeal or 
 writ of error under the statute that such decisions as Rocco v. Parczyk 
 are found, unless a supersedeas was expressly granted by the court; 
 from which the real conflict between that case and Reid v. Lindsey" 
 clearly appears. It is quite as reasonable to hold that the bond given 
 to obtain the supersedeas should take the place of the property as that, 
 the bond for the appeal, which operates as a supersedeas, should do so. 
 Accordingly we find several decisions to the effect that a stay of pro- 
 ceedings under execution or attachment divests the lien of the writ. 
 McCamy v. Lawson, 40 Tenn. (3 Head) 256; Burks v. Bass, 7 Ky. (4 
 Bibb) 338; Eldridge v. Chambers, 47 Ky. (8 B. Hon.) 411. Contra be- 
 sides Reid V. Lindsey and cases cited, see Bond v. Willett, 31 N. Y. 102, 
 Freeman v. Dawson, 110 U. S. 264. 
 
 Likewise, that the bond given to obtain an injunction takes the- 
 
HOW THE LIEN MAY BE LOST. 483 
 
 place of the property held on the execution enjoined and the lien is 
 discharged. Keith v. Wilson, 3 Meto. (Ky.) 201; Barnes v. Balder, 
 Minor (Ala.) 373; Lockridge v. Blggerstaff, 2 Duv. (Ky.) 281, 87 Am. 
 Dec. 498; Bisbee v. Hall, 3 Ohio, 449. 
 
 But on the other hand it is held that the lien is not divested by the 
 injunction (Knox v. Randall, 24 Minn. 479; Lamorere v. Cox, 32 La. 
 Ann. 246; Ducl<ett v. Dalrymple, 1 Rich. L. (S. C.) 143), and the senior 
 creditor is entitled to the proceeds of a sale under a junior writ, while 
 the injunction was in force (Lynff v. Gridley, Walk. (Miss.) 548, 12 
 Am. Dec. 591, contra Mitchell v. Anderson, 1 Hill L. (S. Car.) 69, 26 
 Am. Dec. 158), provided, of course, a levy had been made under his writ 
 before the injunction issued. Launtz v. Gross, 16 111. App. 329; Lynn 
 V. Gridley, above. But see, Richards v. Morris C. & B. Co., ante, 453. 
 
 Thus the conflict is seen to run all along the line, and no reason is 
 perceived why the effect of a stay, injunction, appeal operating as a 
 supersedeas, or a delivery on bond should not each have as much effect 
 on the lien of the execution or attachment as any other of them. Nor 
 do I remember any attempt in any of the cases above cited to distin- 
 guish them, but, on the contrary, as in Rocco v. Parczyk, the courts 
 frequently argue that one follows from the others. However, this dis- 
 tinction may be seen: In Kentucky the court holds that any of these, 
 in behalf of the judgment debtor, divests the lien, but replevin of the 
 property from the sheriff by a claimant does not, and after judgment 
 against the claimant in the replevin suit the property may, if found, 
 be sold on the original execution. Ferguson v. Williams, 3 B. Mon. 302. 
 See also Street v. Duncan, Ala. 23 South, 523; Hagan v. Lucas, 35 TJ. 
 S. (10 Peters) 400. 
 
484 PROCESSES TO OBTAIN SATISFACTION OF JUDGMEN-^S. 
 
 12. HOW THE LIENS MAY BE FORECLOSED. 
 
 However regular in itself, the foreclosure may be ineffective 
 by reason of fatal slips in the prior proceedings. The following 
 will be remembered as cases of that kind : Locke v. Hubbard, 
 ante, 9; Windsor v. McVeigh, ante, t,^;- Pennoyer v. Neff, ante, 
 48; Wills V. Chandler, ante, 186; Clarke v. Miller, ante, 267; Sid- 
 well V. Schumacher, ante, 278; Gordon v. Camp, ante, 296; 
 McMillan v. Roive, ante, 360 ; and Singletary v. Carter, ante, 364. 
 Under this head we inquire as to the effect of various defects in 
 the foreclosure itself, and as to whether it is essential to perfect 
 the title. As to this, read : Cooper v. Reynolds, ante, 15 ; Allen v. 
 Hall, ante, 140 ; and Singletary v. Carter, ante, 364. 
 
 WILDER V. WEATHERHEAD. 
 
 32 Vermont 765. (i860) 
 
 Pursuing Statutory Directions — Importance — Agreements with Debtor 
 
 Waiving Compliance — Garnishee Accepting Orders — 
 
 Rule as to Other Processes. 
 
 Trustee process by John Wilder against S. E. Weatherhead, 
 principal debtor, and Tyler L. Johnson as his trustee. From 
 judgment against the trustee he appeals. Affirmed. 
 
 Johnson, being indebted to Weatherhead, was successively 
 served with trustee process by Weatherhead's creditors in the fol- 
 lowing order : Jacobs, Gregory, and plaintiff herein. Supposing 
 he was bound to pay the creditors in the order in which their proc- 
 esses were served on him, Johnson immediately accepted Weather- 
 head's orders on him in favor of Jacobs and Gregory, which he sub- 
 sequently paid, being to the full amount of their respective claims. 
 These payments he sets up in defense of Wilder's process, with 
 which he was served before accepting the orders. Wilder knew 
 nothing of these orders till they were paid. 
 
 George Howe, for the trustee. 
 
 E. Kirkland, for plaintiff. 
 
HOW THE LIEN MAY BE FORECLOSED. 485 
 
 The Court by Barrett, /. * * * The only question to be de- 
 cided is, whether the payment made by the trustee to Gregory ac- 
 quits him of liabiHty to be adjudged trustee in favor of the plaint- 
 iff in this suit. * * * 
 
 The liability of Johnson, as trustee under the process of any 
 of said creditors, could only be perfected and fixed by a final 
 [*7<^7] judgment against both himself and the principal debtor. 
 The right of the several creditors, as between themselves, by virtue 
 of their successive processes, to reach the goods, effects and credits 
 of their debtor in the hands of a third person, as trustee of such 
 debtor, is a matter of strict law, and unless the creditor in the prior 
 process perfects his right against the trustee, by obtaining final 
 judgment that may be enforced in the manner provided by the 
 statute, his process will fail to postpone or defeat the creditors in 
 the subsequent processes in reaching such goods, effpcts and 
 credits. As the trustee can be charged with liability to any credi- 
 tor only by force of final judgment obtained under the process, if 
 he volunteers to favor a creditor in a prior process, when several 
 successive processes are pending at the same time, by paying to 
 him the trust fund, or delivering to him the trust property, without 
 such final judgment having been obtained, he does it at the hazard 
 of having to answer upon judgments that the creditors in the sub- 
 sequent processes may obtain. 
 
 The design of the statutes as to trustee process is to enable the 
 interest of the debtor in personal property, and his rights and 
 credits, in the hands of third persons, to be attached and made 
 available by his creditors, in the manner provided in said statute. 
 The rights of creditors, as between themselves, in the use and effi- 
 cacy of this form of process, stand in strict analogy to their rights 
 under attachments made upon ordinary mesne process. The law 
 contemplates that the trustee himself shall be a mere passive stake- 
 holder, yielding only to the compulsive force of final judgment 
 duly obtained by any given creditor or creditors. 
 
 The case of Hunger v. Fletcher, 2 Vt. 524, is not inconsistent 
 with this view. That was an action on the case to recover dam- 
 age for the misbehavior of the sheriff, in selling property under 
 an arrangement between several successive attaching creditors 
 
486 PROCESSES TO OBTAIN SATISFACTION OF JUDGMENTS. 
 
 before judgments had been obtained. It appeared that he sold it 
 for more than it would have brought if he had kept and sold it 
 upon the executions, when obtained. Such executions were sub- 
 sequently obtained in due course, and seasonably delivered to the 
 sheriff to charge the property that had been attached and thus sold 
 by him. He applied the proceeds of the property thus sold upon 
 said executions, in the order of their priority, and they were [*7(55] 
 exhausted before reaching the plaintiff, who was the last of six 
 successive attaching creditors, but was not party to the arrange- 
 ment under which the sheriff made said sale of the property 
 attached. The court held that as the case showed that the plaintiff 
 had suffered no damage by the course thus taken with the prop- 
 erty, he was not entitled to recover. 
 
 In the present case the question is, whether the property has 
 been so withdrawn from the trustee's hands by process of law, 
 and in pursuance of its provisions, as to disentitle the plaintiff to 
 claim a judgment for it against the trustee. * * * 
 
 As already indicated, a judgment in favor of Gregory against 
 the trustee, as well as against the debtor, was necessary in order 
 to perfect his lien acquired by the original service of his process, 
 and to give him any right to claim and take the property from the 
 hands of the trustee. As Gregory failed to perfect that lien and 
 right, the plaintiff thereupon succeeded to the unobstructed right, 
 by pursuing his suit to judgment, to claim and hold of the trustee 
 the property that had become charged in his hands by the original 
 service of his trustee process. 
 
 If it were proper for us to permit a regard for real or sup- 
 posed equities to countervail the operation of explicit provisions 
 of the statute, and well settled principles and rules of the common 
 law, the trustee in this case might seem entitled to some immunity 
 from his peril of having to pay twice what he was owing to the 
 defendant. But as the law was open before him, and thereby he 
 was entirely safe from such peril, so long as he saw fit to abide 
 by the law, it would hardly be allowable for this court to save him 
 from the consequences of his own improvidence by denying to the 
 plaintiff the rights which the law accords to him. We think the 
 judgment of the county court was right, and it is 
 
 Affirmed. 
 
HOW THE LIEN MAY BE FORECLOSED. 487 
 
 The Sheriff who surrenders the attached property to the first 
 attaching creditor upon an assignment of it to him by the attachment 
 defendant in settlement of such creditor's demand, is still liable to the 
 junior creditors for the full value of such property, though it was not 
 equal to the amount of the claim of the first attaching creditor. Bran- 
 don Iron Co. V. &leason, 24 Vt. 228. 
 
 CAVENAUGH v. JAKEWAY. 
 1 Walker's Chancery (Michigan) 344. (1844) 
 
 Execution Sale — Relief in Equity — Irregularities — Liability of Sheriff. 
 
 Bill to set aside a sale on execution. Demurrer sustained. 
 
 The Chancellor (^Manning). It was the duty of the officer 
 to have sold the lots separately; and, by selling them together, 
 -he has probably incurred the penalty given by the fifth section 
 of the act. When several known lots, tracts, or parcels, are levied 
 on, the ninth section requires them to be separately exposed for 
 sale. This, however, is directory merely, and a non-compliance 
 on his part will not make the sale void. The irregularity must 
 be corrected by applying to the court out of which the execution 
 issued, to set the sale aside. Whether the irregularity would 
 affect a purchaser, not a party to the suit, as in the present case ; 
 or whether, he being a party, the court would set aside the sale 
 after the two years' redemption had expired, it is not necessary 
 for this court to decide; nor can any such consideration give 
 jurisdiction, where it has none in the first instance. * * * 
 Demurrer allowed, and bill dismissed with costs. 
 
B, WHAT CONSTITUTES .A SATISFACTION, 
 
 All, or nearly all, that was said concerning the effect of the 
 use of one writ upon the right to have another (ante, 195-217), 
 might with propriety be said here, and in some texts that topic 
 is treated under this head. Therefore, we will take up the sub- 
 ject here for review, and attention is especially directed to: 
 Clerk V. Withers, ante, 191 ; Brice v. Carr, ante, 201, and notes; 
 Mountney v. Andrews, ante, 205; and Green v. Burke, ante, 205, 
 and notes. 
 
 COOPER V. BIGALOW. 
 1 Cowen (New York) 56. (1823) 
 
 Effect of Imprisonment on Capias — Right to Set-Off. 
 
 Motion by Cooper that so much of his judgment for $124.68 
 against Bigalow and Searls as would be necessary to satisfy the 
 judgment of Bigalow for six cents and costs against said Cooper 
 and one Henry for assault and battery, be set ofiE against said lat- 
 ter judgment. Both causes were in this court. 
 
 Wilkes, for the motion. 
 
 Foote, contra, objected that the first judgment was satisfied 
 by imprisonment of defendants therein on ca. sa. 
 
 Per Curiam. The bodies of the defendants, Bigalow and 
 Searls, being in execution, this is, in judgment of law, a satisfac- 
 tion of the debt. We find this principle perfectly well settled, so 
 much so, that a commission of bankruptcy cannot issue, upon the 
 proof of a debt for which the bankrupt is in execution. Baniaby's 
 Case, Strange 653. It is no answer to say that the plaintiff may 
 hereafter be entitled to a new execution, by the death of the 
 defendants. At common law; this could not be done. Foster v. 
 Jackson, Hobart 52. But the statute makes it an exception. And 
 the case mentioned of a discharge under the insolvent act, is also 
 by statute. We, therefore, deny the motion. Motion denied. 
 
WHAT IS A SATISFACTION OF A JUDGMENT. 489' 
 
 A motion similar to the above was denied, thougli the defendant 
 taken in execution had died in prison. Williams v. Evans, 2 McCord 
 (S. Car.) 123. The motion in Cooper v. Blgalow above was renewed at 
 the next term of court, and granted on proof that the prisoners had 
 obtained their discharge from prison under the insolvent act. Cooper 
 V. Blgalow, 1 Cowen 206. In England on rule nisi a judgment debtor 
 taken in ca. sa. was released on crediting the amount of the judgment 
 and costs on a larger judgment against the opposite party who had 
 previously been taken and was still held in execution thereon. Peacock 
 V. Jeffery, 1 Taunton 426. See also Simpson v. Hawley, 1 Maule & Sel. 
 696. But in a later case, that defendant was in execution, was held, 
 on demurrer, to be a good replication to a plea of set-off on a judgment. 
 Taylor v. Waters, 5 Maule & Sel. 103, 2 Chitty 303. 
 
 Defendant having died in execution, new execution against his 
 executors on scire facias was denied. Foster v. Jackson, Hobart 52; 
 Williams v. Cutteria, Croke Jac. 136. These decisions induced the 
 statute, 21 Jac. 1 Ch. 24, by which it was provided that if defendant die 
 in execution the plaintiff may have a new execution. 
 
 If the debtor taken in ca. sa. be discharged by agreement, the 
 plaintiff can have no further benefit of his judgment, though the dis- 
 charge was expressly "without prejudice" to the plaintiff's rights. Mag- 
 niac V. Thomson, 2 Wallace Jr. 209, Fed. Cas. No. 8957; Cattlin v. Ker- 
 not, 3 Com. Bench (N. S.) 796, 91 Eng. Com. Law 796. 
 
 MUMFORD V. STOCKER. 
 1 Cowen (New York) 178. (1823) 
 
 Motion to enter satisfaction of a judgment because plaintiff 
 had sued thereon and recovered a judgment in the common pleas. 
 
 Per Curiam. The motion must be denied. The judgment of 
 the common pleas was not an extinguishment of the judgment 
 here. Both debts are of equal degree. Satisfaction cannot be 
 entered upon motion, on the ground of a recovery in another 
 court, until the judgment there is in fact satisfied. Motion 
 denied. 
 
 Compare, Brice v. Carr, ante, 201, and notes. 
 
 HBILIG BT AL. v. LBMLY AND SHAVER, ADM'RS. 
 74 North Carolina 250, 21 Am. Rep. 489. 
 
 Execution — Payment by Sheriff — Right to New Execution. 
 
 Motion by plaintififs for leave to issue execution on a judg- 
 ment recovered against defendant's intestate and others, on which 
 execution had been issued and delivered to W. A. Walton, sheriff 
 of the county, to be executed. The sheriff having failed to exe- 
 cute the writ before it was spent, paid the amount named in it 
 
490 WHAT IS A SATISFACTION OF A JUDGMENT. 
 
 to the plaintiffs, all of whom then signed an assignment of the 
 writ endorsed thereon to the sheriff's son, L. W. Walton, for 
 whose benefit this motion is made. From an order granting the 
 motion defendants appeal. Affirmed. 
 
 McCorkle & Bailey, for appellants, contended, ( i ) that there 
 had been no legal assignment of the judgment, and (2) that if 
 otherwise valid the assignment was void on grounds of public 
 policy, being obtained by money of the sheriff. 
 
 Battle, Battle & Mordecai, and /. 5". Henderson, contra. 
 
 The Court by Rodman, J. The question is whether a sheriff 
 who has made himself liable to a plaintiff by his negligent delay 
 in collecting an execution, and who pays off the debt in his own 
 exoneration and takes an assignment from the plaintiff to a third 
 person in trust for himself, has thereby extinguished the judg- 
 ment, so that he cannot have an alias execution issued to another 
 officer upon it? 
 
 The cases cited by the learned counsel for the defendants 
 from New York do certainly establish that, in that state, upon 
 grounds of public policy, the judgment is absolutely extinguished. 
 Reed v. Pruyn, 7 Johns. 426; Sherman v. Boyce, 15 Johns. 443; 
 Bigelow V. Provost, 5 Hill, 566, and others which may be found 
 cited in a note to Herman on Executions, 205. Nor is this doc- 
 trine confined to New York. It is so held in Alabama : Round- 
 tree V. Weaver, 8 Ala., 314; Boren v. M'Gehee, 6 Porter, 432; 
 Crutchiield v. Haynes, 14 Ala., 4Q; in Tennessee, Smith v. Her- 
 man, i Cold., 141; but see Lintz v. Thompson, 1 Head, .456; 
 in Missouri, Garth v. McCampbell, 10 Mo., 154; in Maine and 
 Massachusetts, unless the sheriff takes an assignment from the 
 plaintiff, the judgment [*252] is extinguished, but if he does, it 
 is not. Whittier v. Heminway, 22 Me., 238 ; Allen v. Holden, 9 
 Mass., 133; Dunn v. Snell, 15 Mass., 481. So in Georgia, Arnett 
 V. Cloud, 2 Ga., 53 ; and perhaps in some other states. 
 
 The foundation of all these cases seems to be that of Reed v. 
 Pruyn. In that case the sheriff having a ca. sa. against Staats, 
 under which Staats was arrested, procured him and Pruyn to 
 confess a judgment in favor of the plaintiff for a larger sum, and 
 the sheriff paid the amount of the execution to the plaintiff. In 
 
WHAT IS A SATISFACTION OF A JUDGMENT. 491 
 
 a few days he took out a ca. sa. on the judgment confessed by 
 Staats and Pruyn, and took their note for a still larger sum, and 
 gave them a receipt for the amount of the first judgment. After- 
 wards the sheriff advertised the property of Pruyn and Staats for 
 sale under an execution upon the judgment confessed, and they 
 moved to set aside the execution, and for an entry of satisfaction 
 on the judgment confessed. The court granted the motion, and 
 Ihere can be no doubt was right in doing so. 
 
 A sheriff who has an execution against a defendant and as 
 the price of indulgence takes from him a judgment confessed, 
 -or a note, for a larger sum, is guilty of oppression and of a breach 
 •of official duty, and on grounds of public policy such judgment 
 ■confessed, or note, must be held void, notwithstanding the sheriff 
 Jias paid the plaintiff in the original judgment the amount of his 
 claim. And a fortiori any acts of the sheriff after he had acquired 
 his interest, under an execution whether issued upon the original 
 judgment confessed, were in like manner void as to the, defendant 
 in the execution. This last proposition has long been settled. Bat. 
 Rev. chap 25, Coroner; chap. 106, Sheriff; McLeod v. McCall, 
 .3 Jones L. 87 ; Stewart v. Rutherford, 4 Jones L. 483. And the 
 first we conceive to be equally clear upon general principles. See 
 also Bat. Rev. chap. 106, sec. 17. 
 
 Kent, C. J., in delivering the opinion of the court (after citing 
 ■the cases of Waller v. Weedale, Noy. (Eng.) 107; Langdon v. 
 Wallis, [*25J] E. Lutw. folio, p. 587, Eng. Ed. vol. i, p. 223; 
 Speake v. Richards, Hob. 206, and Ward v. Hauchet, 1 Keb. 
 551), says, "The practice of sheriffs of paying executions them- 
 selves, and taking security and judgment bonds from the party 
 ■over whom they have at the time such means of coercion is to be 
 strictly and vigilantly watched by the courts. Such humanity is 
 •imposing, but it may be turned into cruelty. Nothing is more 
 important to the honor of the administiation of justice, than that 
 the officers of the court shall not use its process as the means of 
 making unequal bargains, and taking undue advantage. The facts 
 in this case have the appearance of an instance of gross abuse." 
 
 He concludes by saying, "I am happy therefore that the 
 sheriff will be driven to seek his remedy upon the note, when the 
 
492 WHAT IS A SATISFACTION OF A JUDGMENT. 
 
 legality of the increase of the original debt will be open to further 
 investigation." 
 
 We think that in the subsequent cases in New York, and in 
 the others elsewhere that have followed this case, the opinion of 
 the eminent judge has been misconceived, and an extension given 
 to it which was not intended, and which cannot be supported by 
 reason. An opinion applicable to a special case, has been con- 
 verted into a general and arbitrary rule. 
 
 In the present case, the sheriff having an execution against 
 the defendant paid it to the plaintiff in his own exoneration and 
 took an assignment on the execution to his son, whether as a trus- 
 tee for himself, or as a gift to the son, is not material. He now 
 moves that an alias execution may issue to his successor in office, 
 for his benefit. There has been no oppression as there clearly was- 
 in the case of Reed v. Pruyn, and the debt has not been increased. 
 
 We are at a loss to conceive what public policy will be vio- 
 lated if the motion is allowed. 
 
 It is said that if a sheriff can escape amercement by paying, 
 an execution which it was his duty to collect, he will be induced 
 to delay enforcing executions, and creditors may be injured. The 
 creditor cannot be injured if the debt is paid, {*254\ And it can- 
 not be a wrong to the debtor if a sheriff who, relying perhaps on 
 his promise to pay the money by the return day, has made himself 
 liable by his indulgence, is allowed after payment to stand in the 
 position of the creditor. If public policy forbids such payments 
 by sheriffs, and for that reason the judgment is extinguished, it 
 would seem that the same principle would forbid any recovery 
 by the sheriff of the money so paid by him. But the principal case- 
 we have commented on, holds that the sheriff might sue upon the 
 note which he had taken, and recover what might be just. 
 
 It is also said in Roundtree v. Weaver, that the sheriff in an. 
 action against the defendant can recover the money paid for his 
 benefit. And in Lints v. Thompson it is said that if the sheriff is 
 compelled to pay the debt by a judgment of a court, there is an 
 implied transfer of the plaintiff's debt to him. These cases thus- 
 acknowledged that it would be inequitable for a defendant to re- 
 ceive the benefit of the sheriff's payment, and refuse to reimburse 
 
WHAT IS A SATISFACTION OF A JUDGMENT. 493 
 
 liim. It is true that the defendant did not previously request the 
 sheriff to pay the debt, and that in general no one can make him- 
 self the creditor of another by officious service, or by officiously 
 paying a debt for him. But where a sheriff, at the express or 
 presumed request of a defendant in execution, indulges him so 
 that the sheriff is compelled to pay the debt, there is a clear equity 
 for reimbursement. The acceptance of the discharge of the orig- 
 inal debt by the defendant in execution, may be considered as a 
 ratification of the sheriff's act, and as equivalent to a prior request. 
 It is somewhat like a case where one accepts a draft about to be 
 protested for non-acceptance, for the honor of the drawer. If 
 this equity for reimbursement be admitted as a foundation for an 
 action, why is it illegal and against public policy for the sheriff 
 to take an assignment of the execution, which gives him no more 
 than he would have a right to recover ? The form of the recovery 
 is not an essential part [*^55] of the equity, and there is no reason 
 why the sheriff should be put to the circuity of an action. 
 
 It has been seen that in Maine and Massachusetts it is held 
 that where the sheriff takes an assignment of the judgment from 
 the plaintiff in execution, the judgment is not extinguished. The 
 decisions in those states support our decision in the present case. 
 We think also that they imply that it is not against public policy 
 for a sheriff to pay off a debt in his own exoneration; for if it 
 were, an assignment would not be sustained. 
 
 We concur with the judge below, that the motion should be 
 allowed. Let this opinion be certified. 
 
 Per Curiam. ' Judgment affirmed. 
 
 "If a sheriff shall pay the amount of an execution to discharge him- 
 self * * * the defendant may avail himself of such payment to have 
 the judgment satisfied, but he thereby becomes liable to the sheriff for 
 money paid for his use." Poe v. Dorrah, 20 Ala. 288, 51 Am. Dec. 196. 
 
 In any action of debt for the benefit of the officer against the debtor, 
 it Is no defence that the judgment had been paid by the sheriff. Allen 
 ". Holden, 9 Mass. 133, 6 Am. Dec. 46. 
 
494 WHAT IS A SATISFACTION OF A JUDGMENT. 
 
 SOUTHERBN v. REED. 
 4 Harris and Johnson (Maryland) 307. (1818) 
 
 Ejectment in Queen Anne county court by Southeren's lessee 
 against Reed to recover a tract of land called Wilson's Adven- 
 ture. Defendant pleaded the general issue. On the trial plaintiff 
 showed title through Southeren and defendant showed title 
 by sheriff's sale on a judgment against Southeren, the 
 execution being levied in April, 1802, and indorsed for the 
 use of Wright. Defendant also put in evidence the record of a 
 judgment against said Wright as surety for Southeren on the 
 obligation which was the basis of the judgment against Southeren, 
 and a H. fa. thereon returned paid and satisfied by Wright, May, 
 1802, satisfaction of the judgment against him being thereupon 
 entered. From judgment for the defendant below plaintiff 
 appeals. Affirmed. 
 
 The Court by Johnson, /. * * * No motion was made to 
 quash the execution in the court below. The question for this 
 court to decide is, whether or not on these facts the plaintiff is 
 entitled to recover. The payment made by the surety on the 
 judgment against him, and the subsequent entering of satisfac- 
 tion, cannot affect the responsibility of the principal debtor. The 
 court consider such a payment, subsequent to the execution being 
 laid, as only operating at law and equity, as an assignment of the 
 judgment against the principal [*5io] debtor, and that, there- 
 fore, it was strictly correct to carry on the execution for the use 
 of the surety to its full completion. The present is not a new 
 question ; the same point was determined on full consideration, 
 in the case of Norwood v. Norwood, 2 Harris & J. 238. 
 
 Judgment affirmed. 
 
 BONES V. AIKEN AND POWELL. 
 35 Iowa 534. (1872) 
 
 Judgments — Assignment to a Defendant — Effect as Satisfaction. 
 Petition by Bones to restrain the enforcement of judgments 
 against himself and Aiken as partners, recovered after the dis- 
 solution of the partnership. Aiken had taken assignments of the 
 judgments and procured executions thereon, which Powell as 
 
WHAT IS A SATISFACTION OF A JUDGMENT. 495- 
 
 sheriff was about to levy on the individual property of Bones. A 
 preliminary injunction was issued, and upon hearing was dis- 
 solved as to one of the judgments. Plaintiff appeals. Reversed. 
 
 The Court by Miller, /. * * * As ground for dissolving the 
 injunction issued the defendant Aiken showed that in the articles 
 of dissolution of the partnership the plaintiff had agreed to pay 
 the claim of Wellington Bros. & Co. and to release Aiken from 
 his liability thereon, and that plaintiff failed to pay the claim ; 
 and under and by virtue of such agreement Aiken claimed that 
 he was but a surety, and as such purchased the judgment and took 
 an assignment thereof. It is urged in argument that as between 
 the plaintiff and Aiken the latter was not liable on the judgment, 
 and could therefore purchase the same as any other person and 
 enforce it against the plaintiff. Appellees' counsel cite no author- 
 ity in support of this proposition. 
 
 On the other hand, it is well settled that at law the payment 
 of a judgment to the plaintiff or owner by one [*5i(5] of several 
 defendants extinguishes it, even though such payment be made by 
 a defendant who is a mere surety. So also an assignment by the 
 plaintiff or owner of the judgment to one of several defendants 
 in the judgment works the same consequence. The Bank of Sa- 
 lina V. Abbott, 3 Denio, 181 ; Ontario Bank v. Walker, i Hill, 652, 
 
 If Aiken be but surety he may, perhaps, on making a proper 
 case, be entitled in equity to be subrogated to the rights of the 
 judgment plaintiffs. But in law the judgment is extinguished, 
 and no execution can issue thereon as such, though Aiken might 
 have an action at law to recover the money paid, based on the 
 plaintiff's agreement. 
 
 The judgment being satisfied, the execution was void and 
 conferred no power on the sheriff to levy on plaintiff's prop- 
 erty. The judgment, therefore, must be reversed. 
 
 Cole, J., dissenting. It is apparent from the whole case, and, 
 indeed, it is not controverted, that as between the plaintiff and 
 the defendant Aiken, the plaintiff ought to pay the judgments; 
 that by the terms of their dissolution the plaintiff had agreed to 
 pay the debts for which they were rendered. In equity, then, 
 plaintiff is bound to pay them, and a court of equity would com- 
 
496 WHAT IS A SATISFACTION OF A JUDGMENT. 
 
 pel him so to do. Now, while in a court of law, the defendan, 
 may not have the. right to enforce payment by execution (and 
 that is the precise point ruled in the cases cited in the foregoing 
 opinion), yet the plaintiff has brought this action in a court of 
 equity, and asks that court to enjoin the defendant from com- 
 pelling him to pay a debt, which in equity he ought to pay. In 
 such case the elemental rule is that he who asks equity must him- 
 self first do equity. The plaintiff must pay the debt which, in 
 equity, he owes, before he can properly ask a court of equity to 
 interfere. A court of equity will not enjoin legal process, which 
 can [*5i7] effectuate no injustice. To first enjoin the legal pro- 
 cess, and then grant the same relief in equity is a work of super- 
 erogation. For this reason I think the judgment should be 
 .affirmed. 
 
 A perpetual injunction was awarded on similar facts in Hinton v. 
 Odenkeimer, 4 Jones Eq. (N. Car.) 406. 
 
 The general rule is that when a judgment is recovered against sev- 
 eral equally bound to pay, none can make use of the judgment to com- 
 pel contribution by taking an assignment of it to a third party instead 
 of paying it, Boyer v. Bolender, 124 Pa. St. 324; Allen v. Holden, 9 
 Mass. 133, 6 Am. Dec. 46; Adams v. Drake, 65 Mass. (11 Gush.) 504; Stan- 
 ley V. Nutter, 16 N. Hamp. 22; Klippel v. Shields, 90 Ind. 81; for the 
 assignment operates as a satisfaction. And the sajne rule was applied 
 against sureties in both of the cases cited in the principal case above, 
 .as it has been in many others. Preslar v. Stallworth, 37 Ala. 402. 
 
 But there are a few cases, some of them due to statutes, sanctioning 
 the use of execution in this way to enforce contribution from co debtors 
 (Coftee V. Tevis, 17 Cal. 239; Huckaby v. Sasser, 69 Ga. 603; Campbell 
 V. Pope, 96 Mo. 468; Thornton v. Damm, 120 Mich. 510, 79 N. W. 797; 
 Ankeny v. Moffett, 37 Minn. 109; Durand v. Trusdell, 44 N. J. L. 597); 
 or payment by the principal to the the surety who has paid. Harris v. 
 Frank, 29 Kan. 200; Giddens v. Williamson, 65 Ala. 339; Barringer v. 
 Boyden, 7 Jones Law (N. Car.) 187; Harbeck v. Vanderbilt, 20 N. Y. 
 .395; Montgomery v. Vickery, 110 Ind. 211; Zimmerman v. Gaumer, 152 
 Ind. 552. And in case of payment by a surety, If he has no right to ex- 
 ecution at law, he is entitled tor that very reason to subrogation in 
 equity without taking any assignment. Dempsey v. Bush, 18 Ohio St. 
 376; Flemming v. Beaver, 2 Rawle (Pa.) 128, 19 Am. Dec. 629; Mc- 
 Clung V. Beirne, 10 Leigh (Va.) 394, 34 Am. Dec. 739; Chandler v. Hig- 
 gins, 109 111. 602; Wilson v. Burney, 9 Neb. 39; Hayes v. Ward, 4 Johns. 
 *Ch. (N. Y.) 123, 8 Am. Dec. 554. 
 
WHAT IS A SATISFACTION OF A JUDGMENT. 497 
 
 McCARVER V. NEALEY. 
 1 G. Greene (lawa) 360. (1848) 
 
 Judgment — Payment — What May be Taken by Sheriff or Attorney. 
 
 Bill in equity by Nealey against McCarver, and Todd & 
 Sons, praying for injunction. From a decree granting the in- 
 junction as prayed defendants appeal. Modified and affirmed. 
 
 The Court by Greene, J. On the 4th of June, 1841, a judg- 
 ment was rendered against James W. Nealey in favor of Mor- 
 ton M. McCarver, for the sum of $155.47. On the same day an 
 assignment of it, purporting to be for value received, was made 
 upon the margin of the judgment to Ira Todd and Sons. It 
 appears that Joseph D. Learned, Esq., was the plaintiff's attorney 
 of record. He caused execution to be issued, and thereupon en- 
 tered into an arrangement with Nealey, by which [*J(5i] he, as 
 attorney, gave him a receipt in full discharge of the judgment. 
 Subsequently Todd and Sons, the judgment assignees, procured 
 the issue of another execution, which was enjoined by the pro- 
 ceeding now before us, upon the complaint of Nealey v. Mc- 
 Carver and Todd & Sons. Upon a full hearing in the district 
 court the injunction was decreed perpetual, and an appeal thereon 
 taken to this court. * * * 
 
 It is contended that Learned's authority as attorney of record 
 ceased on the rendition of the judgment; and that he had no 
 right to receive the pay or give a receipt in satisfaction. The 
 practice of Kentucky is referred to in support of this position. 
 It has been the recognized custom, since our first territorial 
 organization, for attorneys to control demands placed in their 
 hands till finally collected. This custom was recognized by an 
 early statute, which conferred the exclusive authority upon the 
 attorney of record for the judgment claimant to enter satisfaction. 
 On obtaining a demand from a client, it is usually specified in 
 the receipt given by the attorney that the demand is taken for 
 collection. This rule has been so generally recognized and 
 adopted in Iowa, that to reverse it might work great [*J(5i'] in- 
 justice to parties. But it is alleged that, even if he should be 
 regarded as the attorney of McCarver after the rendition of judg- 
 ment, his authority as such was not transferred to Todd and Sons 
 
 32 
 
498 WHAT IS A SATISFACTION OF A JUDGMENT. 
 
 after the assignment, unless recognized by them ; and that, there- 
 fore, the payment of the judgment to him was unauthorized, and 
 should not release Nealey. This conclusion we should recognize 
 as correct, if it appeared that Nealey had received notice of the 
 judgment- assignment. Without notice, he should be protected 
 as an innocent party to the transaction. 
 
 The testimony of J. W. Nealey, in reply to defendants' inter- 
 rogatories, discloses that Learned received in payment from him 
 a demand against himself for about fifty dollars, an order on one 
 Russell for an unknown amount, which was paid, and the balance 
 in money. 
 
 The principle is not controverted that an attorney has no 
 right to receive anything but money in satisfaction of a demand 
 placed in his hands for collection, unless especially authorized 
 to do so by his client. And it is equally well settled, that if he 
 applies such a claim in payment of his own debts, his client is not 
 bound thereby, and may still proceed against the defendant. 
 Gullett V. Lewis, 3 Stew., 23; Cost v. Genette, i Porter, 212, 34; 
 Craig V. Ely, 5 Stew, and Porter, 354; Tankersley v. Anderson, 
 4 Desaus. (S. Car.) 45; Smock v. Dade, 5 Rand. (Va.) 639; 
 Langdon v. Potter, 13 Mass. 319. 
 
 We find it difficult to ascertain the precise amount that 
 Learned, as attorney, received in money on the payment of the 
 judgment. His deposition states that it was settled by setting 
 ofi a demand which Nealey had against him. From the respon- 
 sive answer of Nealey, to which, from the state of the testimony 
 before us, we give particular credence, it is rendered quite certain 
 that all but about fifty dollars was paid in money. The order on 
 Russell for cash of Nealey's was paid and should be regarded 
 as so much money in the hands of Learned. 
 
 It is therefore our opinion, that Ira Todd and Sons are en- 
 titled to recover from James W. Nealey, on the execution, the 
 sum of fifty dollars, and that the injunction be so far, dissolved 
 1*363] as to enable the recovery thereof, and rendered perpetual 
 as to the balance of said judgment and execution. 
 
 The decree of the district court, declaring the injunction per- 
 petual, will be changed in conformity with this opinion. 
 
WHAT IS A SATISFACTION OF A JUDGMENT. 499 
 
 The cases are generally in accord with the above. In the following 
 cases the judgment creditors were held bound by payments made to 
 the attorney who recovered the judgments, though no proof of authority 
 to collect was made and the money was never received by the judg-< 
 ment creditors. Erwin v. Blake, 33 U. S. (8 Peters) 18; Wyckoff v. 
 Bergen, 1 N. J. L. (Coxe) 248; Black v. Drake, 2 Colo. 330; Baltimore 
 & O. Ry. Co. v. Pitzpatrick, 36 Md. 619; Gray v. Wass, 1 Me. 257; 
 Frazier v. Parks, 56 Ala. 863. To the same effect see also: Harper v. 
 Harvey, 4 "W. Va. 539; Miller v. Scott, 21 Ark. 396; Wheeler v. Alder- 
 man, 34 S. Car. 533, 13 S. B. 673. 
 
 In Brackett v. Norton, 4 Conn. 517, 10 Am. Dec. 179, an attorney 
 sued for services rendered in prosecuting a suit against an ofllcer for 
 neglect of duty in collecting execution on a judgment recovered by 
 plaintiff as attorney for defendant. Plaintiff was allowed to recover for 
 such services without proof of employment except to prosecute the first 
 suit. The authorities on the power of an attorney after recovery of 
 judgment are reviewed at length. 
 
 A judgment defendant, having procured an execution to issue 
 against himself, paid the sheriff the amount in state bank paper and 
 received a discharge. The paper proving worthless the plaintiff asked 
 to have the satisfaction set aside which the court allowed, saying: 
 
 "It may be of the utmost importance to the plaintiff to know when 
 his execution is in the hands of an officer, that he may give such in- 
 structions as are consistent with his rights. He may desire to bid for the 
 property levied on, so as to realize his judgment and prevent the prop- 
 erty from being bought in at a sacrifice and his judgment left unpaid. 
 To give to the defendant or any third person the right of controlling an 
 execution without the privity of the plaintiff, would establish a rule 
 full of mischief which might lead to the practice of the grossest fraud " 
 Osgood V. Brown, Freem. (Miss.) 392. 
 
 BANK OF PENNSYLVANIA v. WINGER. 
 
 I Rawle (Pennsylvania) 29s, 18 Am. Dec. 633. (1829) 
 
 Satisfaction of Judgment by Levy, Sale and Application on Junior 
 
 Judgment — Rights of Sureties — Effect of Judgment 
 
 Against Sureties on Character of Their Liability. 
 
 Scire facias by Bank of Pennsylvania for use of J. Echelmen 
 and B. Vernor against Jacob Winger and P. Reidebaugh, to re- 
 vive a judgment in favor of the bank against said W. and R., 
 which had been assigned to said E. and V. From a judgment for 
 defendants plaintiff brings error. Reversed. 
 
 The judgment on which this scire facias is based was ren- 
 dered Nov. 27, 1820. Afterward, April 9, 1822, E. recovered a 
 judgment against R. on which fi. fa. was issued and satisfied by a 
 
500 WHAT IS A SATISFACTION OF A JUDGMENT. 
 
 sale of R.'s land. Later, Aug. 29, 1823, the bank assigned its 
 judgment to E. and V., who caused this sc. fa. returnable at Nov. 
 Term, 1823, to be issued to revive it. Defendants claim that the 
 bank's judgment was satisfied by the sale of the land under fi. fa. 
 on the junior judgment of E. for more than enough to pay it. 
 
 Evans & N orris, for plaintiff. 
 
 W. Hopkins, for defendants. 
 
 The Court by Gibson, C. J. It was long a moot point whether 
 the sale of land on execution would discharge a prior lien; but I 
 believe no one ever suspected that it would discharge the debt. 
 Such a consequence could be produced only by treating the debt 
 and its lien as inseparable. The lien is, however, but a security 
 which may be released either before or after a sale, and, as any 
 other security, without affecting the existence of the debt. By a 
 sale, the purchase rnoney is substituted for the land; and as it is 
 withdrawn from the control of the debtor, and put within that of 
 the lien creditors, I admit that they are bound to look to the appli- 
 cation of it, insomuch that a loss of any part of it will have to be 
 borne by him whose act occasioned it: in other words, that the 
 debtor may, in equity and conscience, consider whatever has per- 
 ished in the hands of the sheriff, as actually paid to him who is 
 entitled to receive it. But can he do so in respect of what has 
 gone into his own pocket, or, what is the same thing, in ease of 
 his debts? It never has been supposed — certainly it never has 
 been decided — that he can. Where a creditor has two funds, we 
 have prevented him from frustrating the lien of another who had 
 but one ; yet that could not be done if the rights of the parties were 
 iixed by the sale ; for the prior judgment creditor would be paid by 
 operation of law, and before the court could interpose. Hunt v. 
 Breading 12 S. & R. (Pa.) 37, is cited to show that a levy to the 
 value of the debt, is per se, satisfaction of the execution on which 
 -the levy was made. It would be more to the purpose to show that 
 it discharges other executions which bind the goods. If such 
 •were the law, a multitude of cases would necessarily have arisen 
 under it; and the total absence of decision on the subject, is sat- 
 isfactory evidence that the principle does not exist. Surely a 
 right to priority of payment may be waived without waiving that 
 
WHAT IS A SATISFACTION OF A JUDGMENT. 501 
 
 of which it is but an accident. A creditor may release the land 
 without releasing the debt; and why not the purchase money, 
 which is in the place of the land ? It seems to me he does no more 
 when he waives his preference in favor of those who claim under 
 the debtor by his title subsequent. It is a principle of common 
 sense, which has been embodied as a maxim, that any one may 
 waive a right created for his own benefit. What injury can it do 
 any one? [^joj] Surely Reidebaugh, whose proper debt was 
 paid with his own money, could not object to the waiver of prefer- 
 ence by the bank ; and let us see whether Winger, his co-debtor, 
 has any bettei- right to do so. 
 
 Winger and Reidebaugh originally stood in the relation of 
 principal and surety ; so that the refusal of the bank to take satis- 
 faction out of the land of the surety, was in furtherance of the 
 equity between the debtors themselves ; and to this Reidebaugh, 
 the surety, could not object. But, previous to this, Winger had 
 put into his hands funds to discharge the whole debt, which Reide- 
 baugh misapplied ; and the original relation between them, there- 
 fore, was, in fact, reversed. But of this the bank was not ap- 
 prised, and it was therefore justifiable in acting in conformity to 
 the equity of the original relation. It waived its preference in 
 favor of a surety to pursue the principal — the very thing that a 
 court of equity would have compelled it to do. I will not stop to 
 enquire whether the relation of principal and surety is dissolved 
 by a judgment at law, although the negative of the question is 
 sustained by a solemn decision of this court, and there can be no 
 reason why the fixing of the parties at law should absolve the prin- 
 cipal from the moral obligation to protect his surety. For the 
 purposes of the argument I will admit that the relation is extin- 
 guished. The consequence is that both are principals, and stand 
 in equal equity as between themselves. How then could Winger 
 object to the waiver of its preference by the bank, if Reidebaugh 
 could not? A creditor may collect his debt from either of two 
 principal debtors, or from both, at his election. If then the sale 
 by the sheriff were not payment per se, the bank had nothing in its 
 hands but the means of actual payment, which it is not bound to 
 retain in favor of any one but a surety. This principle is well set- 
 
502 WHAT IS A SATISFACTION OF A JUDGMENT. 
 
 tied both in Pennsylvania and England. Commonwealth v. Mil- 
 ler's Adm. 8 S. & R. (Pa.) 452, 457; Reed v. Garvin, 12 S. & R. 
 (Pa.) 100, 103. The bank then might well permit the proceeds 
 of Reidebaugh's land to go to his use without injury to Winger, 
 who was in no aspect entitled to be treated as a surety, and who 
 had no other right to object than that of Reidebaugh himself. 
 
 Thus far I have considered the question as if it were between 
 the defendants and the bank. The judgment is, however, owned, 
 in part, by Echelman, the plaintiff in the judgment on which 
 Reidebaugh's land was sold ; and the question is whether he did 
 not stand in, at least, as favorable a situation as did the bank. 
 * * * 1*304] * * * So far was it from being unconscionable in 
 him to possess himself of the means and capacity of the bank, that 
 a court of equity would have given him the benefit of them. "If," 
 says Chancellor Kent, "a creditor has a lien on two parcels of 
 land, and another creditor has a lien, of a younger date, on one of 
 these parcels only, and the prior creditor elects to take his whole 
 demand out of the land on which the junior creditor has a lien,- 
 the latter will be entitled either to have the prior creditors thrown 
 upon the other fund, or to have the prior lien assigned to him, and 
 to receive all the aid it can afford." Cheesebrough v. Millard, i 
 Johns. Ch. 409, 412. * * =!= It seems to me that, independent of 
 all other considerations, this is decisive in his favor. I am there- 
 fore of opinion that the judgment be reversed. 
 
 Judgment reversed. 
 To the same effect see Barber v. Reynolds, 44 Cal. 519, where there 
 was a levy under both executions and the first judgment held satisfied 
 only as to creditors holding intermediate liens. Also Folsom v. Ches- 
 ley, 2 N. H. 432. 
 
 HAMILTON V. MOONEY. 
 
 84 North Carolina 12. (1881) 
 
 Distribution of Proceeds of Judicial Sale Among Creditors — Effect of 
 
 Misapplication on Liability of Surety to Party Denied His Share. 
 
 Motion by Sarah Hamilton, judgment creditor, for judgment 
 and execution against Adolphus Mooney as surety on the appeal 
 bond of Robt. Simpson et al., defendants, against whom judgment 
 was rendered on appeal. From an order granting the motion 
 Mooney appeals. Affirmed. 
 
WHAT IS A SATISFACTION , OF A JUDGMENT. 503 
 
 Judgment on the appeal was recovered by plaintiff for $220, 
 March 25, and execution issued May 3d, and levied with numer- 
 ous other executions on a stock of goods which the sheriff sold 
 for $1,496, and turned the proceeds into court. The court 
 awarded plaintiff $68 out of the fund. 
 
 W. I. Montgomery, for plaintiff. 
 
 Hoke & Hoke, for defendant. 
 
 The Court by Smith, C.J. * * * The defendant denies his 
 liability, alleging that the property levied on was amply sufificient 
 to satisfy the execution, and such was, in law, its effect; and fur- 
 ther, that part only of the goods were sold, and the remainder de- 
 livered over wrongfully to the assignee in bankruptcy of the said 
 firm, by reason of which, he, the surety, became and is exonerated 
 from all liability upon said undertaking. * * * \.*I4\ * * * 
 
 The only matter of law presented in the appeal is the suffi- 
 ciency of the exception to the ruling, that the goods levied on and 
 surrendered were not a satisfaction of the plaintiff's execution, 
 to the extent that the proceeds of their sale would have been ap- 
 plicable to it. 
 
 While a levy of an execution upon the goods of the debtor 
 is a specific appropriation to and discharge of the debt, even 
 when wasted or lost, for the reason that he ought not to be com- 
 pelled, nor his other property taken, to pay the same debt a second 
 time, yet if the goods have been restored to him, or used in the 
 discharge of his other liabilities, their value does not go in satis- 
 faction of the execution. If this were not so, the same property 
 would discharge two independent debts, and the debtor would be 
 relieved from liabilities in double the amount in value of the prop- 
 erty taken. * * * 
 
 While the liability of the principal debtor remains unimpaired, 
 when the property is restored to him, or otherwise {*I5\ used for 
 his benefit, the surety is discharged, whenever the creditor sur- 
 renders any lien he has acquired on the property, or other security 
 furnished by the debtor, since the property of the latter, being pri- 
 marily liable, must be applied in exoneration of the surety. Smith 
 V. McLeod, 3 Ired. Eq. 390; Forbes v. Smith, 5 Ired. Eq. 369; 
 Nelson v. Williams, 2 D. & B. Eq. 118. 
 
504 WHAT IS A SATISFACTION OF A JUDGMENT. 
 
 But the rule does not apply when the creditor does not parti- 
 cipate in the misapplication of the fund, nor in any wise assent 
 thereto. Kesler v. Linker, 82 N. C. 456. 
 
 The right to proceed against the surety is not forfeited nor 
 postponed, because there is also a right of action against the officer 
 for his misconduct and breach of official duty. The defendant in 
 express terms contracts "that if judgment be rendered against the 
 appellant and execution thereon be returned unsatisfied in whole 
 or in part, he will pay the amount unsatisfied," the precise con- 
 tingency that has occurred, and there is nothing in the facts set 
 up as a defence to release him from his obligation. * * * 
 
 AMrined. 
 
C. QUESTIONS ARISING AFTER SATIS- 
 FACTION, 
 
 We have already considered the effect of the judgment, and 
 the right to question it, in contests over the property sold in sat- 
 isfaction of it (Cooper v. Reynolds, ante, 15 ; Greenvault v. Partn- 
 ers & Mechanics' Bank, ante, 24; Wells v. American Express 
 Co., ante, 31 ; Pennoyer v. Neff, ante, 48; Windsor v. McVeigh, 
 ante, 38) ; the effect, in similar contests, of defects in the pro- 
 ceedings after judgment (Clarke v. Miller, ante, 267; Sidwell v- 
 Schumacher, ante, 278; Gordon v. Camp, ante, 296; Singletary 
 V. Carter, ante, 364; Wilder v. Weatherhead, ante, 484; Cave- 
 naugh V. Jakeway, ante, 487) ; the right to have the judgment 
 opened and the contest tried over after satisfaction made (Bron- 
 son V. Schulten, ante, 103) ; and the rieht to try the same ques- 
 tions again in other proceedings in disregard of the prior judg- 
 ment (ante, 109-135). Our object in the present inquiry is ta 
 consider questions arising out of the act of making satisfaction. 
 
 PIPER V. ELWOOD. 
 4 Denio (New York) 165. (1847) 
 
 Action on Judgment — Effect of Satisfaction by Purchase of Property on 
 
 Execution Sale — Proof of Recovery, Effect — Court's Power 
 
 to Set Aside Satisfaction and Give New Writ. 
 
 Action in justice court by Elwood against Piper on a judg- 
 ment of a justice of the peace. From judgment of the court of 
 common pleas on certiorari affirming the judgment of the justice 
 in favor of plaintiff, defendant brings error. Affirmed. 
 
 Defendant claimed the judgment sued on was satisfied, as it 
 appeared that an execution was issued thereon and levied on de- 
 fendant's horse, which was sold by the constable for enough to 
 satisfy the execution, and it was returned satisfied. But plaintiff 
 
506 QUESTIONS ARISING AFTER JUDGMENTS ARE SATISFIED. 
 
 showed that defendant had sued him and recovered the value of 
 the horse because it was exempt from execution. 
 
 V. Owen, for Piper. 
 
 James Hyde, for Elwood. 
 
 The Court by Branson, C.J. The defendant defeated the ef- 
 fect of the levy and sale, by suing for and recovering the value of 
 the property. The first judgment thereupon revived, and might 
 be enforced. If the judgment had been in a court of record, the 
 plaintiff would have been allowed to amend or strike out the re- 
 turn on the execution, and to have a new execution. Adams v. 
 Smith, 5 Cowen, 280. As the justice had no power to order such 
 an amendment, an action on the judgment was the appropriate 
 
 remedy. 
 
 Judgment affirmed. 
 
 Debt has been sustained on a judgment of a justice of the peace, 
 though execution had been issued thereon, and the constable's return 
 showed levy and satisfaction. Parol evidence was held competent in 
 such action to show that the return was false. Hutchinson v. Green- 
 bush, 30 Me. 450. 
 
 In Texas debt on judgment of a court of record satisfied by sale 
 of land on execution was sustained on proof that the levy and sale were 
 fatally defective. Townsend v. Smith, 20 Tex. 465, 70 Am. Dec. 400. 
 Debt on judgment after levy of execution under it held not maintain- 
 able where defendant's title was perfect, but plaintiff failed to record 
 the levy. Lawrence v. Pond, 17 Mass. 433. Entry of satisfaction being 
 conclusive in all collateral proceedings, held that debt would not lie, 
 but only scire facias or the like. Pratt v. Jones, 22 Vt. 341; Grosvenor 
 v. Chesley, 48 Me. 369. 
 
 HUGHES V. STREETER. 
 24 Illinois 647, 76 Am. Dec. yyj. (i860) 
 
 Execution on Judgment Satisfied of Record — Power of Clerl< to vacate 
 Satisfaction and Award New Writ — Levy on Land, Suffi- 
 ciency of Indorsement to Identify. 
 
 Motion by John Hughes to quash an execution on a judg- 
 ment against him in favor of Samuel Streeter, on which a previous 
 execution had been returned: "Made * * * the amount of this 
 judgment interest and costs." From order denying the motion, 
 Hughes brings error. Reversed. 
 
 Scales, McAllister & Jewett, for plaintiff in error. 
 
 Smith & Dewey, for defendant in error. 
 
QUESTIONS ARISING AFTER JUDGMENTS ARE SATISFIED. 507 
 
 The Court by Walker, J. The rule has been uniform both in 
 this country and Great Britain, that after a satisfaction of a judg- 
 ment by the sale of property, no further execution can issue upon 
 the judgment, until the satisfaction is vacated, the levy and sale set 
 aside, and an execution awarded by an order of the court in which 
 the judgment was rendered. No case has been referred to, and 
 none is believed to exist, in which a clerk has ever before issued an 
 execution on a judgment thus satisfied. And it is for the plain 
 and manifest reason, that his duties are only ministerial, while the 
 netting aside a levy, or a sale, or the vacating the entry of satisfac- 
 tion of a judgment, is a judicial act. When the plaintiff 
 lias sold property in satisfaction, his judgment ceases to exist, and 
 when the record entry of its satisfaction is vacated, it is thereby 
 revived, and receives new vitality. The exercise alone of a judi- 
 cial power, equal to that which first made the decision, can impart 
 this new life to a judgment which has once been satisfied by an 
 officer or person clothed with power to make the entry. The hear- 
 ing the evidence and finding the facts on the motion, is as purely 
 judicial, as is the ascertaining the amount of the indebtedness, and 
 rendering the judgment in the first place. The clerk might as 
 well assume the one jurisdiction as the other, and the exercise of 
 •either is wholly unwarranted. 
 
 We have, however, been referred to the case of the Frankfort 
 Bank V. Markley, i Dana ( Ky. ) 373, as an authority to sustain the 
 -practice. That was a case where an agent of plaintiff, through 
 mistake, entered a credit on the execution, and the clerk issued an 
 ;alias for the full amount of the judgment. That case stands, so far 
 as we can find, solitary and alone, and no rule of law is referred to 
 in support of the authority of the clerk, and the court, in the opin- 
 ion, very properly discourages the practice. The facts of that case 
 are not the same as in this, and even if they were, we should not be 
 inclined to follow it as a precedent, or as authority, since we believe 
 that it is opposed to the uniform practice, and is not sanctioned 
 by the common law, is unauthorized by statute and in violation of 
 •our constitution, which has vested all judicial power in courts, and 
 [*(55o] not in ministerial officers. We are therefore clearly of the 
 ■opinion that the court erred in not quashing the alias execution, as 
 
508 QUESTIONS ARISING AFTER JUDGMENTS ARE SATISFIED. 
 
 its issue was not warranted until the satisfaction, the levy and sale, 
 had been set aside by the judgment of a court of competent juris- 
 diction. 
 
 The question will necessarily arise on another trial, whether 
 the levy and sale made under the first execution should be set 
 aside. * * * A part of eighty acres, containing seventy-four 
 acres, more or less, is wholly insufficient to designate any tract o£ 
 land, that can be located. By this description it might be located 
 in a large number of different modes, either of which would 
 equally answer the call of the deed. It is true, that it is seventy- 
 four acres in a designated eighty-acre tract. But whether on the 
 one or another of the sides, in the center or in one of the angles of 
 the tract, it is impossible to know. There is nothing in the levy 
 and certificate of purchase from which that fact can be ascertained, 
 and we have no other means, which we can recognize, of ascertain- 
 ing the intention of the parties. Whether the half of the quarter 
 section is fractional, does not appear. But even if it did appear that 
 he owned seventy-four acres by an appropriate description, there 
 is nothing in the levy to limit and designate the portion of the half 
 of the quarter that he owned. Had it stated that it was all of the 
 land which he owned in the tract, or that it was all of the land he 
 has acquired by purchase from a particular individual, or some 
 such reference to something else, by which it could have been 
 located, it might have been sufficient. But we have no such refer- 
 ence, and we have no doubt that the description is so defective that 
 no title whatever passed by the sale. This being the case, the 
 defendant in error did not obtain anything by his purchase, and 
 has an equitable right to have the levy and sale set aside, and an 
 execution awarded by which he may acquire the benefit of his- 
 judgment. 
 
 The judgment of the court below is reversed, and the cause 
 remanded. 
 
 Judgment reversed. 
 
 On the first point, to the same effect, Haden v. Walker, 5 Ala. 86;. 
 Tudor V. Taylor, 26 Vt. 444. 
 
 The decision In Richardson v. McDougall, 19 Wend. (N. Y.) 80, to 
 the effect that new execution on a satisfied judgment may Issue with- 
 out any order of court, if the property sold proves not to belong to the- 
 judgment debtor, is clearly induced by admission of counsel and with- 
 
QUESTIONS ARISING AFTER JUDGMENTS ARE SATISFIED. 509 
 
 out reflection, for Cowen, J., says: "It is not denied tliat execution 
 might well liave issued had it not been for the sci. fa." 
 
 Numerous decisions to the same effect as to the suflaciency of the 
 description are cited in Freeman, Ex. § 330. 
 
 WATSON V. REISSIG. 
 24 Illinois 282, 76 Am. Dec. 746. (i860) 
 
 Judgments — Power of Courts Over Their Processes — How Exercised — 
 
 Power to Set Aside Satisfaction — Property Liable to 
 
 Process, Right of Redemption. 
 
 Motion by Charles Reissig to set aside and vacate an entry of 
 satisfaction of a judgment in his favor against Alonzo Watson. 
 From an order granting the motion defendant brings error. Af- 
 firmed. 
 
 The satisfaction was entered on return of execution on the 
 judgment, stating that lots two and three of Wheaton's Addition 
 to the town of Wheaton had been levied thereon and sold to the 
 plaintiff in the judgment for the amount of the judgment and 
 costs. 
 
 Mather, Taft & King, for Watson. 
 
 Coventry & Rountree, for Reissig. 
 
 The Court by Caton, C. J. The law is too well settled to ad- 
 mit of discussion, that a court of law may exercise an equitable 
 jurisdiction over the execution of its own judgments and process, 
 but it does not follow that it will always exercise such jurisdiction, 
 and indeed it will refrain from doing so, when from any circum- 
 stance, it cannot do as complete justice as a court of equity, but will 
 leave the parties to seek relief in that court. We shall see whether 
 this record presented such a case as justified the court of law in 
 exercising such an equitable jurisdiction. * * * [*^i55] * * * The 
 facts may be stated in a very few words. The property had been 
 previously sold on the Savage execution, and there only remained 
 in the judgment debtor a right of redemption. This was levied 
 upon and sold by virtue of this execution, and bid in by, or for, 
 the judgment creditor, and upon that bid and for that considera- 
 tion, satisfaction of the judgment and execution was entered. 
 And whether this sale and satisfaction should be set aside, was the 
 real question to be determined. 
 
 In the case of Merry v. Bostivick, 13 111. 398, it was decided 
 
510 QUESTIONS ARISING AFTER JUDGMENTS ARE SATISFIED. 
 
 by this court, for reasons which we think entirely satisfactory, 
 that the right of redemption which is by our statute vested in the 
 judgment debtor for twelve months after a sale of real estate 
 under a decree or an execution, is not subject to be levied upon 
 and sold, by virtue of another execution against the judgment 
 debtor. Hence this levy and sale conferred no right or title to 
 the purchaser. It was entirely void, and the satisfaction was en- 
 tered without any shadow of consideration whatever. In such 
 a case it was not only proper, but it was the duty of the court to 
 set aside, or vacate the entry of satisfaction, and to issue another 
 execution under which the judgment creditor might redeem from 
 any sale where the law would permit it, or otherwise seek a real 
 satisfaction of his judgment. 
 
 The order of the court below is affirmed. 
 
 Order affirmed. 
 
 In other states it has been held that the debtor's right of redemp- 
 tion is an interest liable to levy and sale on an execution or attach- 
 ment against him. Curtis v. Millard & Co., 14 Iowa 128, 81 Am. Dec. 
 460; Herndon v. Pickard, 73 Tenn. (5 Lea) 703. 
 
 FREEMAN v. CALDWELL. 
 ID Watts (Pennsylvania) 9. (1840) 
 
 Judgments — Setting Aside Satisfaction and Awarding New Writ — War- 
 ranty in Judicial Sales — Right to New Execution on 
 Failure of Title— Statute 32 Hen. VIM. 
 
 Scire facias by James D. Caldwell against Brewster Freeman, 
 to obtain execution on a judgment against said Freeman, which 
 had been satisfied by a sale to plaintiff on H. fa. of cattle which 
 turned out not to belong to Freeman and were afterward replev- 
 ined by the owners. From an order granting new execution de- 
 fendant brings error. Reversed. 
 
 Armstrong and Campbell, for appellant. 
 
 Parsons and Greenough, contra. 
 
 The Court by Gibson, C. J. In judicial sales there is no war- 
 ranty. The principle is universal, but particularly recognized by 
 us in judicial sales of land, which we treat as a chattel for payment 
 of debts ; and it is of course equally applicable to the judicial sale 
 of a chattel pure. What interest in it does the sheriff propose to 
 
QUESTIONS ARISING AFTER JUDGMENTS ARE SATISFIED. 511 
 
 sell ? Not a title to it, but the debtor's property in it, whatever it 
 may be ; and the vendee, where the thing has been recovered from 
 him, has no recourse to the price of it in the hands of the sheriff or 
 the creditor's pocket. In the case of The Monte Allegre, 9 Wheat. 
 616, it was ruled that a loss sustained by the marshal's vendee of a 
 rotten article, sold by a sample with which it did not correspond, 
 should not be made good out of the proceeds in court. Why shall 
 not the same principle be applied to a purchase by the judgment 
 creditor himself? By his bid he may have prevented a sale to a 
 stranger who could have had recourse to no one ; and thus have 
 deprived the debtor of the benefit of his doubtful title, which 
 may have been a legitimate subject of value. In the one case and 
 in the other, the produce of it has, in contemplation of law, been 
 brought into court and distributed; and the matter has conse- 
 quently passed in rem judicatmn. * * * [*i2'\ 
 
 Before the 32 Hen. VIII, there was no re-extent upon an evic- 
 tion of a tenant by elegit. "Nota," says Lord Coke, 2nd Inst. vol. 
 I p. 190, a, "it appears by the preamble of the said act, and by 
 divers books, that after a full and perfect execution had by elegit 
 returned and of record, there never shall be any re-extent on any 
 eviction, but if the extent be insufficient at law, there may go out a 
 new extent." Here then is distinctly announced the common law 
 principle which rules the case ; and though it has been abrogated in 
 England, so far as regards land, there is no statute on the subject 
 in Pennsylvania. The silence of the repealing act as to chattels, 
 was imputed by Mr. Justice Woodbury, in Whiting v. Bradley, 2 
 N. H. 79, to a supposition that creditors could, even then, have a 
 new execution of everything but land; but it is plain, from the 
 special provision of the statute in that case, that the legislature of 
 his own state thought otherwise. Indeed, the statute Westm. 2, 
 which gave the writ of elegit, had put land and chattels on a foot- 
 ing in all respects, except the relative quantity which might be 
 levied of each, and the manner of its application to purposes of sat- 
 isfaction ; and it is probable, the reason why the latter were not in- 
 cluded in the 32 Hen. VIII, was that the progress of trade had not 
 involved the title to things personal, so frequently in complication 
 and doubt, as to cause much inconvenience from it. * * * 
 
512 QUESTIONS ARISING AFTER JUDGMENTS ARE SATISFIED. 
 
 Without power derived from a statute, therefore, I take it that 
 1*13] execution can not be repeated; and though this clear com- 
 mon law principle may be violated, it can not be evaded. It is 
 among the worst symptoms of the judicial epidemic of our day, 
 that the bent of the professional mind is towards oral testimony in 
 preference to record and written proofs. What motive could there 
 be, were it allowable on principle, to overturn the record in this 
 instance ? The plaintiff's case may be thought a hard one ; but it 
 is not more so than would be the case of a stranger, and to say that 
 ^very sheriff's vendee who is deprived of the property by title para- 
 mount, shall have his money again, would destroy all confidence 
 in the stability of judicial sales. He takes upon him a risk which 
 may lead to his disadvantage ; but he does so at the premium of a 
 reduced price. Were it not for this risk, a plaintiff might safely 
 -depreciate the defendant's title, and buy it in at a sacrifice. If it 
 proved good, he would have it at an undervalue; but if bad, he 
 would be only where he began. His interest, instead of being pro- 
 moted by a sale for an outside price, would be to have the property 
 sacrificed ; and it is impolitic to encourage a principle which would 
 make him a speculator. In this respect, an advantage over the 
 other creditors would be, not only unjust to them, but ruinous to 
 the debtor. On grounds of reason and authority, therefore, he 
 
 ought to stand as any other purchaser. 
 
 Judgment reversed. 
 
 This is the case usually cited by those who maintain this view, and 
 it fairly represents their argument. To the same effect see Vattier v. 
 Lytle, 6 Ohio, 482; Thomas v. Glazener, 90 Ala. 537, 8 South, 153, 24 
 Am. St. Rep. 830; Halcombe v. Loudermilk, 3 Jones (N. C.) 491; and 
 Jones V. Burr, 5 Strobh. (S. Car.), 147, same case 53 Am. Dec. 699, in 
 a note to which Mr. Freeman reviews a large number of decisions. In 
 his work on executions he says: "Upon this question the authorities are 
 clearly irreconcilable." Freeman Ex. § 54. But from the following 
 cases the clear weight of authority, and as it seems to me of reason 
 also, will be seen to be against Freeman v. Caldwell. In many states 
 a remedy is given by statute. But let us review the decisions not de- 
 pending upon statute. 
 
 In the following cases satisfaction was set aside and a new execu- 
 tion given because the property sold subject to a mortgage was worth 
 less than the incumbrance. Kimports v. Oberholtzer, Iowa, 82 N. W. 
 1012; Osborne v. Miller, 37 Minn. 8, 32 N. W. 786; Hollon v. Hale, Tex. 
 ■Civ. App., 51 S. W. 900. 
 
QUESTIONS ARISING AFTER JUDGMENTS ARE SATISFIED. 518 
 
 In Connecticut payment being compelled under a levy after the 
 return day of the writ and satisfaction entered, the judgment was 
 revived on scire facias on proof that defendant had recovered the 
 amount paid. Stoyel v. Cady, 4 Day (Conn.) 222. In a later case debt 
 on judgment was sustained though the judgment had been satisfied by 
 levy on land of a stranger, the creditor who purchased at the sale sup- 
 posing defendant's conveyance to be fraudulent. "In this state the 
 ancient English common law rule has never been adopted; but the 
 practice has uniformly been in conformity with the principle that where 
 there is no real, but only an apparent satisfaction of the execution issued 
 on a judgment, by reason of a mistaken or fruitless levy on lands, debt 
 on judgment, as well as scire facias, may be brought to obtain satisfac- 
 tion." Cowles V. Bacon, 21 Conn. 451, 56 Am. Dec. 371. 
 
 In the following cases satisfaction produced by a sale of property 
 which proved not to belong to the judgment debtor was set aside and a 
 new execution on the judgment awarded on scire facias or motion. 
 Adams v. Smith, 5 Cowen (N. Y.) 280; Magwire v. Marks, 28 Mo. 193, 
 75 Am. Dec. 121; Ritter v. Henshaw, 7 Iowa, 97; Cross v. Zane, 47 CaL 
 602; and in Tudor v. Taylor, 26 Vt. 444, the right to new execution on 
 proof of failure of title and the power of the court to set aside the sat- 
 isfaction were asserted, but the new execution was denied because a 
 presumption of actual payment arose from the delay for 30 years after 
 satisfaction was entered before the motion was made that satisfaction 
 be set aside. The propriety of such action is also asserted in Whiting 
 V. Bradley, 2 N. H. 79. 
 
 The supreme court of Ohio having followed Freeman v. Caldwell 
 in Vattier v. Lytle, 6 Ohio, 478, held that it was no defense to a bill to 
 foreclose a mortgage that the debt thereby secured had been reduced 
 to judgment and the judgment satisfied by a sale on execution of the 
 mortgaged land which the debtor had sold after the mortgage was re- 
 corded but before the levy was made. HoUister v. Dillon, 4 Ohio St. 
 198. There are several cases in which a judgment creditor has been 
 given a decree in equity for the amount of his judgment when defend- 
 ant's title to the property sold plaintiff on execution to satisfy the judg- 
 ment has failed. Warner v. Helm, 6 HI. (1 Gil.) 220; Price v. Boyd, 
 1 Dana (Ky.) 434; M'Ghee v. Ellis, 4 Littell (Ky.) 244, 14 Am. Dec. 124. 
 In Howard v. North, 5 Tex. 290, which was a suit to recover land 
 because the sale of It on execution was defective, Hemphill, C.J., in 
 behalf of the court, in an elaborate opinion maintained the right of the 
 purchaser under the execution to retain it till the amount paid by him 
 to defendant's use had been refunded. To same effect see Meher t. 
 Cole, 50 Ark. 361. 
 
 Caveat Emptor. It cannot be disputed that caveat emptor applies 
 to all purchasers at judicial sales as stated by Gibson, C.J. That is to 
 say, there is no implied warranty either of quality or title by either the 
 judgment debtor, judgment creditor or the officer making the sale. II 
 the quality is deficient it Is the purchaser's loss, as was held in the 
 case cited by Gibson, C.J., above. If a stranger has purchased at the 
 
514 QUESTIONS ARISING AFTER JUDGMENTS ARE SATISFIED. 
 
 sale and title has failed, clearly he can have no recourse to the judg- 
 ment creditor (England v. Clark, 5 111. [4 Scam.] 486; Dunn v. Frazier, 
 8 Blackf. [Ind.] 432), nor against the ofiBcer making the sale. The 
 officer has done what he was hound to do and no more, and no implied 
 warranty of anything can be imputed to him. And as to the judgment 
 creditor the execution, which is said to be the end of the law, would be 
 of little use to him and a dangerous thing if he were liable to an im- 
 plied warranty of the property sold on it. It has even been held that 
 the person buying cannot resist payment of the amount of his bid on 
 the ground that defendant had no title and therefore the consideration 
 had failed, for he purchased only a quitclaim. M'Ghee v. Ellis, 4 Litt 
 (Ky.) 244, 14 Am. Dec. 124; Farmers' Bank v. Peter, 76 Ky. (13 Bush) 
 591; Humphrey v. Wade, 84 Ky. 391; Cameron v. Logan, 8 Iowa 434; 
 Contra, Julian v. Beal, 26 Ind. 220, 89 Am. Dec. 460. If the money is 
 in the hands oi the clerk he cannot have it back. Dunn v. Frazier, 8 
 Blackf. (Ind.) 432. 
 
 Right of Purchaser to Reimbursement. — But although there is 
 no implied warranty by the defendant in the execution it does not fol- 
 low that he is not bound to pay the purchaser the amount he has paid 
 and which has gone to satisfy the defendant's debts. Accordingly we 
 find numerous decisions to the effect that one who, being a stranger to 
 the proceedings, has paid money at an execution sale for property 
 which did not belong to the defendant in the execution, may recover 
 the amount in an action against the judgment debtor either at law or 
 In equity, though no fraud is imputed to him. Preston v. Harrison, 9 
 Ind. 1; McLaughlin v. Daniel, 8 Dana (Ky.) 182; Johnson v. Caldwell, 
 38 Tex. 218; McLean v. Martin. 45 Mo. 393. 
 
INDEX. 
 
 ABANDONMENT— of levy operates as satisfaction, pp. 205-217, § 120. 
 of garnishment by taking judgment, pp. 197-198. 
 of lien by taking another writ. pp. 468-473, § 202. 
 of lien by dropping proceedings, pp. 140, 484, § 203. 
 of possession affects lien. p. 458, § 204. 
 of exemption by selling property. § 176. 
 
 ABATEMENT — of suit by taking judgnient in another action. § 84, p. 197. 
 of action by plea of previous garnishment, p. 202. 
 of attachment in wrong form of action, p. 147. 
 by death of the party, pp. 189, 191, 412, §§20, 114, 119, 194. 
 
 "ABOUT TO'— in grounds for attachment, p. 170. 
 
 ABSCONDING — as ground for attachment, pp. 148, 162, 165, § iii. 
 
 ACCEPTANCE— of draft passes title to fund. p. 399. 
 
 ACCIDENT — as ground for relief from judgment. § 65. 
 
 ACCOUNT— attachment in action of. p. 148. 
 
 annexed to draft shows assignment, p. 399. 
 
 books not liable to levy. § 177. 
 
 between partners, attachments and garnishments upon. pp. 161, 383. 
 
 ACTION — what is commencement of. p. 177, § 114. 
 garnishment is. § 97. 
 
 in which attachments and garnishments may issue. § 109, pp. 147, 148. 
 against oiificer for wrong in executing process, pp. 312-352, §§ 156- 
 
 160. 
 by officer or creditor for interference with property. §§ 155, 194, 195. 
 by purchaser at the sale. pp. 510-514. 
 for relief against unjust judgment. §§ 61-66. 
 to revive dormant judgment and have execution, p. 193, § 116. 
 to set aside satisfaction and have new execution, p. 509. 
 on satisfied judgment, p. 506, §225. 
 estopped by former judgment. §§68-89. 
 
 ACT OF GOD— excuses the officer, p. 349, § 157. 
 
 ACTS OF OFFICER— creditor liable for only when directed or ratified 
 §153. 
 which make him liable. §§ 156-160. 
 
 ACTUAL POSSESSION — essential to charge garnishee, pp. 372-379, § 169. 
 
 ADDITIONAL ANSWERS— allowed and required of garnishees. §209. 
 
 ADDRESS — of process to one officer prevents execution by another, pp. 
 280, 297, 298. 
 
516 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 ADMINISTRATORS— not liable as garnishees, p. 409, § 129. 
 may enforce judgment in favor of deceased, p. 191. 
 sometimes personally liable, p. 232. 
 
 ADOPTION— of child, jurisdiction, want of notice, effect, p. 35. 
 
 ADVERSE CLAIMANTS— of property levied or garnished, rights of. 
 §§ 197, 201. 
 
 ADVERTISEMENT— what sufficient time and proof of. p. So. 
 effect ot failure to make. p. 20, § 18. 
 
 AFFIDAVIT — for attachment and garnishment, form and essentials, pp. 
 273-276, §§ 134-139- 
 contradiction of, in proceedings to quash. §§ 200, 201. 
 
 AFTER ACQUIRED TITLE— whether bound by judgment liens, pp. 
 437-444. 
 
 AGENT — service of process on gives no jurisdiction. § 17. 
 
 having money not liable as garnishee of person to whom principal 
 
 directs payment, p. 266, § 174. 
 of corporation as its garnishee, pp. 372-375. 
 who may answer for garnishee corporation. § 209. 
 of corporation served in garnishment against it. p. 245. 
 to receive payment of judgment, attorneys and officers as. §218. 
 to collect judgment has power without interest, p. 223. 
 demand of process by, is sufficient, p. 218, § 125. 
 
 AGREEMENT — cannot confer jurisdiction, p. 13. 
 
 of indemnity against unlawful acts is void. § 153. 
 
 of attorney or officer to take other than money in payment. § 219. 
 
 of defendant that property left with him shall remain liable. § 204. 
 
 AMBIGUITY — of description when fatal to levy. pp. 342, 508. 
 
 AMENDMENT— of the record, p. 82, §§ 13, 53. 
 of the judgment, pp. 103-108, §§61-66. 
 of attachment and garnishment affidavits. § 134. 
 of defective process. § 142. 
 of the offiicer's return. § 212. 
 
 AMERCEMENT— of officer by court. § 124, pp. 184, 286, 422, §§ 92, 193, 
 124. 
 
 AMOUNT — due rnust be certain to si'stain attachment, p. 156. 
 must be liquidated to sustain garnishment, p. 393, § 170. 
 must be stated in the judgment record. § 56. 
 of judgment not stated, or incorrectly stated, in execution, effect, p. 294, 
 
 ANIMALS— dying after levy for want of feed and drink, officer liable. 
 § 159, P- 3S0. 
 how levied, p. 287. 
 
 ANSWER — of garnishee, who may make. § 209. 
 
 ANY — person may be garnishee. § 128. 
 creditor may have process. § 121. 
 defendant liable to process. § 127. 
 
 APPEAI^effect on attachment and garnishment liens, pp. 473-479, §§ 206- 
 
 judgment on enforced bv what court. § 132. 
 
INDEX. 517 
 
 Cases are referred to by pp., text by §§. 
 
 APPEAL, Continued — effect on power of lower court, p. 476. 
 before record made. § 12. 
 
 does not vacate judgment nor suspend operation of it. § 88. 
 after judgment is satisfied. § 225. 
 
 APPEARANCE — confers jurisdiction of person. § 17. 
 
 enables judgment in personam in attachment without service, pp. 17, 
 
 426. 
 by garnishee waives what defects. § 187, p. 32. 
 by defendant waives what defects. § 187. 
 by attorney shown to be unauthorized, p. 89. 
 
 APPORTIONING PROCEEDS— among creditors, pp. iS9, 470, 48s, S03. 
 
 APPRAISERS— should not buy at sale. §39. 
 effect of not appointing. §211. 
 
 ARREST — used to effect the levy or garnishment, p. 414. 
 of judgment not suspend effect. §§ 88, 207. 
 of garnishment judgment by appeal, p. 476. 
 
 ASSIGNMENT — of judgment to a defendant satisfies it. §220, p. 494. 
 of judgment need not be in writing or recorded, p. 238. 
 of claim or judgment entitles assignee to attachment or execution. 
 
 § 122, p. 220. 
 of part of judgment, payment after notice. §218. 
 of property subject to lien of levy, execution, judgment, etc. § 195, 
 
 PP- 333, 435- 
 garnishment does not operate as. p. 203. 
 
 by defendant to first creditor does not cut out second, p. 486. 
 of fund by making draft or check on it. p. 399. 
 
 ASSUMED NAME— judgments on, binding, parol proof. §81. 
 
 ASSUMPSIT— if it lies, garnishee liable, p. 394. 
 
 lies in favor of creditor against one receiving proceeds of sale. p. 434. 
 against defendant lies to purchaser who gets no title, p. 514. 
 right to waive tort and sue in. p. 154. 
 
 ATTACHMENT— Definitions and kinds. §§92, 96. 
 lies in what forms of action. § 109, pp. 147, 148. 
 lies for tort, on debts not yet due, etc., when. § no, pp. 153-162. 
 lies when amount is liquidated and certain, pp. 155-162, § no. 
 grounds for, rules as to. §§ 111-112, pp. 162-176. 
 
 against part of debtors, p. 165. 
 
 on part of demand, pp. 166-170. 
 
 substantially made out. p. 171. 
 
 contracted or payable in state, p. 173. 
 
 fraudulently contracted, pp. 167, 175. 
 
 want of, objection by garnishee, p. 162. 
 
 want of, objection by claimant. §201, pp. 159, 168. 
 affidavit wanting or defective, effect. § 134, pp. 16, 24, 32, 50. 
 
 what is sufficient contents. § 137, p. 273. 
 
 signing and swearing to. §§ 135, 136, p. 275. 
 
 who may swear to. § 135. 
 
 form and certainty of allegations. § 138. 
 summons to defendant, served after levy. p. 177. 
 may issue how early and late. § 114, pp. 177-180. 
 who may have and control. § 121. 
 lies against whom. §§.126-129, PP- 228-266. 
 several simultaneous on same demand. § 120. 
 what courts may issue. §§ 130-132. 
 
518 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 ATTACHMENT, Continued— bonds. § 140. 
 
 writs, title, seal, signature of clerk, address, etc. §§ 141-144, pp. 273- 
 286. 
 
 return day omitted or wrong, pp. 288, 291. 
 
 statement of amount, names of parties, etc. §§ 146, 147. 
 
 shields officer when fair on face. § 152. 
 
 liability of officer executing. §§ 157-160. 
 
 officer's right to indemnity. § 153. 
 
 who may execute. § 164. 
 
 where may be executed. § 161. 
 
 when may be executed. §§ 162, 163. 
 
 what liable under. §§ 166, 171-180. 
 
 what is a valid levy. §§ 182-186. 
 what officer may issue. § 133. 
 
 necessity of publication and what is sufficient. § 18, pp. 16, $0. 
 necessity of summons and notice of levy. §§ 187-188. 
 when lien begins. § 192. 
 nature of lien. §§ 193-19S. 
 
 quashed for defects and want of cause. §§ 196-201. 
 abated by bond, abuse of process, judgment for defendant, loss of 
 
 possession, death of defendant, etc. §§202-207, 114. 
 procedure to perfect. §§ 208-212. 
 
 ATTACK — collateral, direct, and in limine, defined. § 22. 
 collateral, true rule as to validity on. §§ 23-45. 
 
 ATTORNEYS — have lien on judgment and right to control process. § 122, 
 
 p. 225. 
 record entered by, on court's direction, valid. § 12 note. 
 may only receive money in payment, and money satisfies. §§ 218, 219, 
 
 pp. 187, 497. 
 creditor may control process without or in opposition to. § 125, p. 222. 
 presumed on collateral attack to have appeared with authority, p. 91. 
 purchasing at sale not entitled to rights of third parties. § 224. 
 
 AUCTION — judicial sale should be at. §210. 
 
 AUDITA QUERELA— for relief from judgments. § 65. 
 for relief from attachments, executions, etc. § 198. 
 
 AUTHENTICATION— and proof of foreign judgments, etc. p. 71. 
 
 AUTHORITY — of attorney who appears disproved collaterally, p. 91. 
 of attorneys, sheriffs, etc., to receive payment. §§ 218, 2ig. 
 executions issued without plaintiff's, valid. § 123. 
 See "Jurisdiction." 
 
 AVERMENTS— of attachment and garnishment affidavits. §§ 137-138. 
 essential to judgment records. § 56, p. 78. 
 
 BAIL — on appeal, to release property, etc., effect on lien. § 207, pp. 419, 480. 
 See "Bonds." 
 
 BAILEE— as garnishee. § 169, pp. 372-378. 
 
 BAILIFFS— See "Sheriffs and Constables." 
 
 BANK BILLS— liable to levy. p. 424. 
 
INDEX. 519 
 
 Cases are referred to by pp., text by §§. 
 
 BANKRUPTCY— effect on lien. § 194. 
 
 BELIEF — allegation of when sufficient in affidavit, p. 274. 
 
 BIBLIOGRAPHY— works on judgments. §6. 
 
 BID — at execution sale enforced though title failed, p. Si4- 
 of plaintiff cannot be rejected for failure to pay. § 122. 
 
 BILL IN EQUITY— for relief against judgments. § 65. 
 to vacate execution, sales, pp. 240, 487. 
 to enjoin executions, etc. § 196, p. 495. 
 for subrogation, p. 496. 
 to assist enforcing judgments. § 173. 
 
 BILLS NEGOTIABLE— effect on garnishability of debt evidence. § 170, 
 pp. 397-399- 
 
 BLANK — as to amount avoids execution. § 145. 
 forms of judgments. §§ 49, 51. 
 forms of affidavits and writs. §§ 139, 147. 
 
 BOARDS — ^public as garnishees. § 129, p. 256. 
 
 BONA FIDE — purchasers after lien attaches, rights of. §§ 189-194, 
 
 purchasers under executions issued without plaintiff's consent, p. 227. 
 purchasers of property left in possession of defendant. § 204. 
 garnishing creditor may disprove, p. 383. 
 
 BONDS — effect on lien of giving various. § 207. 
 for attachment. § 140. 
 
 BOOKS— of account not liable to process. § 173. 
 
 in which records of judicial proceedings must be made. §§48-52, 
 p. 10. 
 
 BREAKING DOORS— to execute process. §§ 152, 160, pp. 317, 428. 
 
 BURDEN OF PROOF— to show garnishee's liability, p. 404. 
 when officer sued for not returning writ. § 158, p. 346. 
 
 CAPACITY — judgment in one, no bar to action in another. §80. 
 execution in one, on judgment in another, p. 232. 
 judgment in one, on garnishment in another. § 107. 
 
 CAPIAS — definition and kinds. §§ 96, 99. 
 
 escapes, right to retake, and liability of officer for. pp. 214, 351. 
 
 when lies. §§ 92, 166, 171, p. 139. 
 
 effect of use on right to other process. § 120, pp. 195, 471, 488. 
 
 release from as satisfaction, p. 489. 
 
 abolished renews right to other writs, pp. 471, 489. 
 
 CARRIERS — common, of goods as garnishees, p. 250. 
 
 CASE — lies in favor of creditor against party disturbing goods subject to 
 lien. § 19s. 
 
 CATTLE— wild, levied how. p. 287. 
 
 officer levying must feed. § 159, p. 350. 
 
520 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 CAUSE OF ACTION— on which attachment lies. § no. 
 for which garnishee may be charged. §§ 167-170. 
 extinguished by the judgment. §§68-74, 84. 
 cannot be split. § 74. 
 may be split by garnishment, p. 384. 
 
 CAVEAT EMPTOR— applies to -judicial and execution sale. §§ 224-225, 
 pp. 505-514- 
 
 CERTAINTY — required in descriptions of realty levied on. § 182, pp. 342, 
 580. 
 in the allegations of attachment and garnishment affidavits. § 138. 
 in statements in writs. §§ 145-147. 
 in judgment records. §§ 54-S6, pp. 33, 79- 
 in amount due plaintiff to allow attachment, pp. 155-161. 
 in proof to charge garnishee, p. 404. 
 
 CERTIFICATE— to prove foreign records, p. 70. 
 
 CERTIORARI— enforced how. § 92. 
 
 CHAMBERS — powers of judge at. § 196, pp. 307-311. 
 
 CHANCERY- relief in, from law judgments. §65. 
 
 relief in, from executions and attachments. § 196, pp. 168, 495. 
 
 vacate execution sales v/hen. pp. 240, 487. 
 
 subrogation in. p. 496. 
 
 aid of, in enforcing judgments. § 173. 
 
 decrees of, how enforced. § 92. 
 
 CHANGE OF POSSESSION— essential to valid levy. §§ 183-184. 
 
 CHARACTER — of defects which make proceedings void. §§ 14-45. 
 of demands on which attachment lies. § no. 
 of defendant as cause for attachment. §111. 
 of obligation on which garnishee is chargeable. §§ 167-170. 
 
 CHATTEL MORTGAGE— liability of property to process against mort- 
 gagor. § 174, pp. 274, 383. 
 liability after default, p. 274. 
 sale must be in bulk v/ithout cost to mortgagee, p. 383. 
 
 CHATTELS— liable to execution. §§ 171-180, p. 138. 
 
 CHECKS AND DRAFTS — as assignments of funds garnished, p. 399. 
 
 CHOSES IN ACTION— liability to processes. § 173. 
 
 CITATION— of persons to get jurisdiction. §§ 17, 18, 187, 188. 
 
 CLAIMANTS — rights to intervene, issues, and procedure. §§ 197, 198, 201, 
 pp. 159, 168, 4S2, 452- 
 whose duty to call, power of court, p. 386. 
 effect on lien of bonds by. pp. 421, 483. 
 
 CLASSIFICATION — of topics under this subject. § 5 and table of con- 
 tents, 
 of ju3gments. § 47. 
 
 of objections to validity of judicial proceedings. § 22. 
 of property liable to processes. §§ 171-180. 
 of grounds for attachment. §111. 
 
INDEX. 521 
 
 Cases are referred to by pp., text by §§. 
 
 CLERKS OF COURTS— entering judgment not pronounced, effect. §§ 12, 
 
 13- 
 duty of to record proceedings. §§ 49-51, p. 6. 
 may make entry after term. § 53. 
 cannot correct entry once made. § 53, p. 507. 
 absent during trial not avoid judgment. § 14. 
 liable for refusal to issue process. § 124, p. 218. 
 no right to process to collect fees. § 122, p. 187. 
 may issue attachments in their own cases. § 133. 
 may authorize another to issue process. § 133. 
 power to receive payment of judgments. §§ 218, 219. 
 power to administer oaths, p. 24. 
 power to quash attachments. § 196. 
 
 CO-DEFENDANTS — not bound to each other by judgment against them. 
 , §80. 
 
 right tD contribution. § 74. 
 right to control execution. § 220. 
 all liable to execution. § 127. 
 
 CODES — states which have adopted, and effect on attachments. § 109. 
 effect in making equitable estates liable to process. § 174. 
 
 COERCION — enforcement of judgments by. §§92, 171. pp. 139, 303. 
 
 COLLATERAL ATTACKS— what defenses available on. §§22-45, I34. 
 142, 211. 
 
 COLLATERAL SECURITY— not merged in judgment. §74. 
 
 COLLECTIONS — authority of attorneys, sheriffs, etc., to make. §§218,219. 
 
 COMMENCEMENT— of action, what is. §§ 114, 106, p. 177. 
 
 COMMERCIAL PAPER— current as a defense to garnishment, p. 397. 
 when liable to execution, etc. § 173. 
 
 COMMON CARRIERS— as garnishees, p. 250. 
 
 COMMON LAW — powers of courts to control judgments and process. 
 §§ 53. 55, 150, 221, 225. 
 attachments, § 92. 
 
 COMMUNITY PROPERTY— liable to process. § 174. 
 
 COMPANIES— See "Corporations" and "Partnerships." 
 
 COMPETENCY — of parol evidence to vary records. §§ 57-60, 53. 
 of parol proof when no record of judgment was made. § 13. 
 
 COMPLAINT— what sufficient to give jurisdiction. § 16. 
 
 CONCURRENT — use of several processes. § 120. 
 
 CONFLICT OF JURISDICTION— forbids interference with property in 
 another court. § 180. 
 
 CONFLICT OF LAWS— effect of foreign judgments. §§ 84, 73. 
 foreign garnishment judgments as defense, pp. 73, 202. 
 situs of debt for garnishment, p. 73. 
 
 judgments and decrees as to property out of state, effect, p. 68. 
 exemption laws without force out of state, p. 76. 
 
 CONSENT — cannot give jurisdiction, pp. 14, 17. 
 
522 TNDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 CONSIDERATION— essential to contract, not to judgment. § ii. 
 
 CONSPIRACY— to defeat creditor, action for. § 195. 
 
 CONSTABLES— See "Sheriflfs and Constables." 
 
 CONSTITUTIONAL LAW— impairing "the obligation of contracts" by 
 impairing the remedy. § 149, pp. 299-304. 
 "due process of law," to acquire jurisdiction of person. § 17, p. 61. 
 "due process of law" in judgment after denying hearing, p. 42. 
 "due process of law" in proceedings in rem. § 18, p. 45. 
 "full faith and credit" to garnishment judgment of another state. 
 
 p. n- 
 
 effect of disobedience of in judicial proceedings compared with stat- 
 ute. §§ 25, 33. 
 
 retroactive laws giving new remedy or changing procedure, p. 304. 
 
 legislature not vacate judgments, p. 63. 
 
 acts authorizing execution against state or delegating audit of claims 
 unconstitutional, p. 262. 
 
 CONSTRUCTION— of judgment entries. §§ 55, 59. pp. 33, 80. 
 of statutes as retroactive, p. 304. 
 
 of statutes relating to contracts so as to include judgments. § 11. 
 of attachment and garnishment statutes, p. 171. 
 of statutes so as to suppress the wrong and advance the remedy. § 42, 
 
 p. 439- 
 of statutes leading to absurdities. §§ 38, 42. 
 
 CONSTRUCTIVE POSSESSION— not sufficient to charge garnishee. 
 § 169, pp. 372-378. 
 
 CONSTRUCTIVE SERVICE— sufficient to proceed in rem, but not in 
 personam. §§ 16-18. 
 
 CONTEMPT OF COURT— in executing process of another court on prop- 
 erty subject to lien. p. 340. 
 
 CONTINGENT LIABILITY— not sufficient to charge garnishee. § 170, 
 pp. 389-391- 
 
 CONTINGENT REMAINDERS— not liable to levy or sale. § 174. 
 
 CONTRACTS — obligation of^ not to be impaired. §§ 11, 149, pp. 299-304. 
 of garnishee not to be impaired by garnishment, p. 391. 
 judgments are not. § II. 
 on which garnishees may be charged. § 170. 
 on which attachments lie. § no. 
 
 joint, merged in judgment against any one. §§ 74. 89. 
 made payable in the state, p. 173. 
 joint, made joint and several by statute, enables attachment on ground 
 
 against any. p. 164. 
 made or payable in state, p. 173. 
 statutes making joint several, effect an attachment, p. 164. 
 
 CONTRIBUTION — when and how enforcible by codebtors. §§ 74, 220, 
 pp. 186, 496. 
 
 CONTROL — essential to charge garnishee. § 169, pp. 372-378. 
 
 COPYRIGHT— not liable to process. § 173. 
 
 CORAM NOBIS — and coram vobis, when these writs of error lie. § 6s, 
 p. 106. 
 
INDEX. 523 
 
 Cases are referred to by pp., text by §§. 
 
 CORPORATIONS, PRIVATE— of garnishees. § 128, pp. 24S-260. 
 are liable to execution and may hold land. pp. 238-244. 
 how answer as garnishees. § 209. 
 
 CORPORATIONS, PUBLIC— as garnishees, p. 257- 
 property of liable to execution. § 129, p. 254. 
 
 COSTS — when mortgaged property sold under process not chargeable to 
 mortgagee, p. 381. 
 chargeable to fraudulent garnishee, p. 378. 
 
 COUNTERCLAIMS---barred by ju igments. § 72. 
 which are available to garnishees, p. 143. 
 
 COUNTIES— as garnishees, p. 257. 
 
 property of liable to process. § 129, p. 254. 
 
 COURTS — definition and essentials. § 14. 
 
 cannot be created by agreement, p. 14. 
 
 essentials of jurisdiction. §§ 15-19. 
 
 can enforce judgments of other, when. § 132. 
 
 which may issue processes. §§ 130, 131. 
 
 power to amend records. § 53. 
 
 power to correct judgments. §§ 63-66. 
 
 power over their processes. §§ 150, 196. 
 
 power to enter and vacate satisfaction. §§ 221, 225. 
 
 cannot interfere with property held by other courts. § 180. 
 
 may entertain suits against officers of other courts, p. 325. 
 
 CREDITS — to which garnishee is entitled, pp. 143, 391- 
 
 CROPS — ^liable to processes. § 178, pp. 138, 179, 205. 
 
 CUSTODY — of one court prevents property being taken by another. § 180. 
 essential to charge garnishee. § 169, pp. 370-378. 
 effect of sheriff failing to retain. § 204. 
 
 DAMAGES — for which officer may become liable in executing or for failure 
 to execute processes. §§ 156-160, p. 345. 
 clerk liable in for not issuing process. § 124, p. 218. 
 recoverable by creditor for injury to property subject to lien. § 195. 
 of or by officer, when recoverable of creditor. § 153, p. 321. 
 certainty of essential to have, attachment. § no, pp. 155-161. 
 
 DATE — omitted from writ, effect. §§ 142-144. 
 from which lien attaches. §§ 189-192. 
 when process may be executed. §§ 162-163, 212. 
 
 DEATH — of defendant abates attachment and garnishment. §§ 114-206. 
 of officer before recording judgment, parol proof. § 13. 
 of garnishee abates garnishment, p. 412. 
 of defendant before or after execution levied, effect. § 119. 
 of party before judgment, effect of judgment rendered after, with- 
 out reviving action. § 20. 
 
 DEBT — on which attachment lies. § no. 
 
 for which garnishees may be charged. § 170. 
 exempt as proceeds of exempt property, p. 401. 
 situs of for purpose of garnishment, pp. 71-77. 
 
524 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 "DEBTOR"— includes debtors, p. 165. 
 
 DECISIONS— See "Judgments." 
 
 DECLARATION— filed is commencement of suit. § 114. 
 essentials of, to give jurisdiction. § 16. 
 
 DECREES — estoppel arising from §§ 68, 69, 72. 
 how enforced. § 92. 
 
 DEED OF SHERIFF— effect of defects. §211. 
 
 DE FACTO — officer's acts valid, but he not protected. § 164, p. 215. 
 officers liable for misfeasance. § 156. 
 person acting by agreement without claim is not, officer, p. 13. 
 
 DEFAULT— of deputy, sherifif liable. § 156. 
 
 for which officers are liable. §§ 156-160. 
 
 DEFECTS — in judicial proceedings which avoid on collateral attack. §§23- 
 
 4S- . 
 
 in affidavits for attachment and garnishment, effect. § 134, pp. 10, 
 
 24, 33, so. 
 in processes, effect. §§ 142-147. 
 in judicial and execution sales, effect. §211. 
 
 DEFENDANT — jurisdiction of only by appearance or personal service. § 17. 
 
 not estopped in action with co-defendants by judgments against them. 
 §80. 
 
 execution issues against any. § 127. 
 
 no right to control process, p. 499. 
 
 entitled to process on judgment in his favor, p. 152. 
 
 cannot enforce judgment against co-defendant by taking an assign- 
 ment. § 220, pp. 186, 49S. 
 
 liable to purchaser at execution sale who gets no title, p. SI4- 
 
 may have process quashed on what grounds. § 200. 
 
 cannot prosecute suit against garnishee while garnishment pending, 
 pp. 72, 203. 
 
 whether he may be a garnishee. § 128. 
 
 arrested on ca. sa. and released satisfies judgment. § 214, p. 489. 
 
 DEFENSES — concluded by former judgment. §§ 71, 72, 74. 
 available to garnishees. §§ 171, 201, 209, pp. 143, 163. 
 available to defendant to quash process. § 200. 
 available to claimants. §201. 
 available on collateral attacks. §§ 15-45. 
 garnishment pending as. pp. 72, 203. 
 available in direct attacks on judgments. § 65. 
 
 DEFINITIONS— of contract. § 11, pp. 173, 300. 
 of judgments. §§6, 7, p. 11. 
 of various processes. §§ 92-104. 
 "plaintiff" includes defendant, p. 152. 
 of jurisdiction. §§ 15-16, p. 17. 
 of jurisdiction of subject matter, p. 23. 
 of obligation, pp. 176, 300. 
 of record. §§ 48, 62. 
 of "fraudulently contracted." p. 175. 
 of "contracted within state." p. 173. 
 "debtor" includes debtors, p. 165. 
 "issued." p. 145, § 106. 
 
INDEX. 525 
 
 Cases are referred to by pp., text bv §§. 
 
 DELAY — which will entitle garnishee to be discharged, p. 390. 
 
 which will entitle subsequent creditor to priority. § 205, p. 465. 
 which bars right to have sale vacated, pp. 240, 487. 
 which bars vacating a judgment. § 65, p. 107. 
 
 DELEGATION — of legislative power unconstitutional, p. 264. 
 by clerk of power to issue process. § 133. 
 
 DELIVERY — of property to debtor after levy, efifect. § 204, p. 426. 
 of process to officer essential to issuing it. § 106. 
 of process to officer in possession operates as levy. § 184. 
 bond does not extinguish lien. § 207. 
 
 DEMAND — before defendant could sue not essential to garnishment. § 170. 
 on which garnishee may be charged. §§ 169, 170. 
 of return not requisite to action for failure to return process, p. 343. 
 on which attachment may be had. § no. 
 
 DENIAL — by garnishee of liability issue on. § 209, p. 383. 
 
 DEPOSITORY— garnishee as. § 169. 
 
 DEPUTY— liability of sherifif for acts of. § 156. 
 liable directly to creditor when. § 156. 
 
 one cannot serve process in favor of another or of sheriff, p. 364. 
 may levy on property first levied by sheriff, o. 367. 
 powers of, cannot be restricted by commission or agreement, pp. 333, 
 
 337- 
 and sheriff how far one officer, pp. 331, 336, 368, 452. 
 may sue in his own name, or sheriff may sue. § 155. 
 power of court to appoint special, p. 361. 
 powers of special, p. 317. 
 
 DESCRIPTION— essential to levy on land. pp. 342, 508. 
 of judgment in execution wrong, effect, p. 294. 
 of the parties in processes, wrong, effect. § 146. 
 of judgment in sheriff's deed, wrong, effect. §211. 
 
 DILIGENCE — required of officers to escape liability. § 157, pp. 331-337. 
 required of creditors to prevent discharge of garnishee, p. 390. 
 required of creditors to retain priority. § 205, p. 465. 
 required of debtors seeking to avoid judgment, p. 107. 
 of junior creditor in finding property, no justification to officer in 
 
 giving him first levy. p. 329. 
 gives priority when rights otherwise equal, p. 471. 
 
 DISABILITY — ^persons under legal, liable to execution, etc. § 127. 
 
 DISBURSING OFFICER— of government as garnishee, p. 265. 
 
 DISCHARGE — of garnishee by payment before judgment reversed. § 224, 
 p. 476. 
 of garnishee for creditor's failure to prosecute, p. 390. 
 of sheriff not effective till he is notified, p. 333. 
 of garnishee for defects in the proceedings. § 201, p. 163. 
 
 DISCLOSURE — of garnishee when and how made and procured. § 209. 
 must show liability to charge garnishee, p. 404. 
 
 DISCOVERY — from garnishee by cross-examination. § 209. 
 
 of property by junior creditor does not entitle him to priority, p. 329. 
 
 DISCRETION— of court to set aside judgment. §§64, 65. 
 
 of court to set aside executions and sales, pp. 308, 487. 
 
 conferred on officers relieves them from liability for not acting. § 156. 
 
526 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 DISQUALIFICATION— of officer by interest. §§ 133, 164, p. 364. 
 
 DISTRESS — as a means of enforcing judgments. §92, p. 139. 
 what liable to. § 178; note. 
 
 DISSOLUTION — of attachment and garnishment, proceedings, jurisdiction, 
 procedure, issues, etc. §§ 196-201. 
 setting aside judicial and execution sales. §210. 
 setting aside judgments. §§ 61-66. 
 
 DISTRIBUTION — of proceeds among creditors, priority. §§ 189-192, pp. 
 IS9, 168, 452, 453, 455, 462, 470. 
 
 DIVORCE — jurisdiction to entertain proceedings for. p. 22. 
 
 DOCKETING— judgments. §§48-53, p. 10. 
 
 assignment of judgment, effect of failure, p. 238. 
 
 DOMrCILE — of parties, effect on garnishability of debt. pp. 72-77. 
 touching jurisdiction to grant divorce, pp. 23, 63. 
 
 DOORS — officer's right to break. §§ 152, 160, pp. 317, 428. 
 
 DORMANT JUDGMENTS— executions on not void. § 116. 
 
 DOUBTFUL — statements not sufficient charge garnishee, p. 404. 
 
 DRAFTS — as assignments of funds drawn on. p. 399. 
 
 DUE PROCESS OF LAW— what is. §§ 17-19, pp. 45, 61, 65. 
 
 ECCLESIASTICAL COURTS — conclusiveness of judgments, pp. 109-119 
 
 EFFECT — of judgments as estoppel. §§ 67-89. 
 
 of processes and judgments in creating liens. §§ 189-195. 
 of garnishment as a defense, pp. 72, 203. 
 
 EFFECTS — for which garnishee can be charged. §§ 169-170. 
 in one court not liable to process from another. § 180. 
 
 ELECTION — of remedies as release of judgment and execution liens. § 202. 
 to release part of debtors by taking judgments against others. § 89. 
 
 ELEGIT — Definition, origin, and use of writ. § 102, pp. 138-140. 
 
 ENROLLMENT— of judgments. §§49-51. 
 
 ENTIRE CAUSE OF ACTION— split by garnishment, p. 383. 
 split by sale of part interest. § 218. 
 discharged by taking judgment for part. §§ 74, 89. 
 
 ENTITLING — of attachment and garnishment affidavits and writs, p. 274 
 §§ 141-144. 
 
 ENTRY— of judgment whether precede appeal, execution, etc. §§ 12 13 
 S3, PP- 6, II. 
 proper form of judgment. §§ 49-52. 
 may be. made when. § 53. 
 what it must show. § 56, p. 79. 
 presumptions in aid of. § 55, p. 80. 
 
INDEX. 527 
 
 Cases are referred to by pp., text by §§. 
 
 E.i'lTRY, Continued — when and how amendable. § 53, p. 82. 
 
 conclusiveness of on collateral attack. §§ 57-60, pp. 83-102. 
 
 not necessary to a levy on land. § 182. 
 
 when necessary to jurisdiction in rem of land. § 16. 
 
 EQUITABLE— estate's liability to process. § 174 
 interests of third parties protected., § 122. 
 exemptions from process. § 177. 
 equity of redemption, sale of under execution, p. 510. 
 
 EQUITY— relief in, from judgments. §65. 
 
 subrogation in, to creditor's rights, p. 396. 
 assisting to enforce judgments. § 173. 
 injunctions against executions. § 196, pp. 495, 168. 
 execution sales vacated in, when. pp. 240, 487. 
 decrees how enforced. § 92. 
 of redemption liable to levy and sale. p. 510. 
 
 ERROR — does not make judgment void. §§24-27, p. 23. 
 
 in judgment and record when amendable. §§ 12, 13, 53, 65. 
 
 writ of, coram vobis and coram nobis, use. § 65, p. 106. 
 
 writ of should not issue till judgment entered. § 12. 
 
 writ of, effect on operation of judgment. §§ 88, 206, pp. 473-479. 
 
 ESCAPES — voluntary and involuntary, liability of officer, right to retake, 
 right of creditor, pp. 214, 351. 
 
 ESTATES— liable to process. §174. 
 
 equitable of third parties protected. § 122. 
 
 after acquired, whether bound by judgment lien. pp. 437-444. 
 
 ESTOPPEL BY JUDGMENT— a rule of necessity. § 68. 
 
 formulated in Duchess of Kingston's Case. §69, Cases 109-119. 
 
 the three essentials of. § 70. 
 
 what matters estopped. §§ 71-77, pp. 123-133. 
 
 who estopped. §§ 78-82. 
 
 what judgments estop. §§ 83-89, 80, pp. 109-123. 
 
 ESTOPPEL IN PAIS— of sheriff by return, p. 434. 
 
 of creditor to complain of an act requested by him. § 156. 
 
 EVIDENCE — ^parol to prove judgment never recorded. § 13. 
 
 parol to identify property described in certificate of levy. p. 342. 
 parol to identify matters decided at former trial, p. 130. 
 parol to identify judgment on which execution issued, p. 294. 
 parol to show who were parties. § 81. 
 competent and sufficient to amend record. § 53. 
 competent to prove foreign judgments, p. 70. 
 record conclusive on collateral attack. §§ S7-6o, pp. 83-102. 
 former judgment conclusive of the right. § 69. 
 showing on what the judgment was rendered, to establish lien, etc. §74. 
 of merits not admissible on motion to quash attachment. § 200. 
 to disprove bona fides admissible against garnishee, p. 383. 
 to show bona fide purchase of bond after judgment against assignor 
 on attached coupons, p. 134. 
 
 EXAMINATION — of garnishee in open court. § 209. 
 
 EXCESSIVE LEVIES— liability for. § 159. 
 
 EXCUSABLE NEGLECT — when relief from judgment is asked, pp. 240, 
 487. 
 
528 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 EXECUTIONS— judgments which require. §91. 
 definition and kinds. §§ 92-104. 
 
 not completely "issued" till delivered for service. § 106. 
 may issue on what demands. § 107. 
 whether may be issued before judgment recorded, while stayed, while 
 
 dormant, after satisfaction, after death. §§ 1 1 5- 1 19. 
 effect of levy, or levy and release, of one on right to another. § 120. 
 who has right to control. §§ 121-122. 
 issued without authority of creditor valid. § 123. 
 form of demand for. § 125. 
 what courts may issue. §§ 130-132. 
 issued by interested clerk, or private deputy. § 133. 
 form. § 141. 
 
 what formal parts essential. §§ 142-144. 
 
 effect of misnaming parties, amount return day, etc. §§ 146-147. 
 restricting is impairing obligation of contract. § 149. 
 court and judge may control. § 150. 
 protection of officer in executmg. §§ 152-154. 
 property rights of officer. § 155. 
 liability of officer. §§ 156-160. 
 where may be executed. § 161. 
 how early and late may be executed. §§ 162-163. 
 who may execute. § 164. 
 who begins must finish, pp. 192, 347. 
 what may be levied under. §§ 171-180. 
 what is good levy. §§ 182-186. 
 notice of, to defendant. § 188. 
 lien of, when begins. §§ 189-191. 
 lien of, nature. §§ 194-195. 
 grounds and proceedings to quash. §§ 196-200. 
 proceedings from levy to sale, § 210. 
 return of. § 212. 
 lien of abated by death, loss of possession, failure of judgment, abuse 
 
 of process, abandonment, election, etc. §§ 202-207. 
 right to new, on satisfaction proving false. § 225. 
 purchasers under protected from prior liens, and subsequent reversal. 
 
 §224, p. 446. 
 restrained, effect on lien. pp. 479-483. 
 
 EXECUTORS-;-not liable as garnishees. § 129, p. 409. 
 
 when individual property liable on judgments against them. pp. 232- 
 
 234- 
 property held by, exempt from process. § 180. 
 
 EXEMPLIFICATION— to prove judicial records, p. 70. 
 
 EXEMPT — property being seized, sold and recovered, plaintifif entitled fo 
 new satisfaction, p. 508. 
 
 EXEMPTION — of persons from liability to process. §§ 127-129. 
 of property from liability to process. §§ 175-180. 
 of property extends to proceeds, pp. 400-403. 
 of property after contract made impairs its obligation, p. 300. 
 laws not part of contract, and of no force beyond state, p. Tj. 
 
 EXPIRATION — of term does not relieve officer from duty to execute pro- 
 cess. § 163. 
 
 of lien, by failure to levy. § 163. 
 
 of lien of judgment between levy and sale, rights of prior purchaser. 
 §195. 
 
 EXTENDI FACIAS— defined. § loi. 
 
INDEX. 529 
 
 Cases are referred to by pp., text by §§. 
 
 FACTORIZING— as a name for garnishment, p. 144. 
 
 FACTS— which must be alleged in attachment and garnishment affidavit. 
 §§ 137-138. 
 
 FAILURE OF TITLE— rights of purchaser at sheriff's sale on. § 225, pp. 
 512-514- 
 
 FALSE RETURN— action against officer for. § 157. 
 
 FEES of court officers give them no right to process. § 122. 
 
 of sheriff not being paid does not justify him in proceeding after 
 
 parties have settled, pp. 187, 222. 
 may be required in advance. § 153. 
 of public officer not liable to garnishment. § 179. 
 
 FEME COVERT— judgments against enforced. § 127. 
 as garnishee. § 128. 
 
 FICTITIOUS — name, parol evidence to show true party. § 81. 
 
 FICTIONS— situs of debt. pp. 71-77. 
 
 whole term as one day, judgments effect from first day. § 190. 
 dating back executions. § 190, p. 189. 
 
 FIERI FACIAS— defined. §98. 
 
 FILES— as records of judgment. § 51. 
 not notice to strangers. § 12. 
 
 FILING RECORD— explained. § 219. 
 
 FINAL JUDGMENT— defined. §47. 
 
 FINDINGS — of fact and law distinguished from judgment. §9. 
 
 FIRE ENGINES— exempt. § 179. 
 
 FIRE INSURANCE — on exempt property exempt, p. 401. 
 
 FORCE — which officer may use in executing process. §§ 152, 159, 160. 
 
 FORECLOSURE — of judgment, attachment, garnishment, and executiott 
 liens. §§ 208-212. 
 
 FOREIGN— judgments, defined. §47. 
 
 judgments, effect. §§ 73, 84, pp. 68, ^^. 
 judgments, how proved, p. 70. 
 
 FORMER ADJUDICATION— See "Estoppel by Judgment." 
 
 FORMS— of judgment entries. §§49, 51. 
 
 of attachments and garnishment affidavits. § 139. 
 of attachment and garnishment writs. § 147. 
 of executions. § 147. 
 
 FORTHCOMING BOND— effect as release of lien. § 207, pp. 480-483. 
 
 FRAUD — collateral attacks on ground of. §60. 
 
 may be shown by garnishing creditor, p. 383. 
 
 FRAUDS — statute of, provisions touching judgments and executions. 
 § 190, p. 444- 
 
 FUTURE ESTATES— whether liable to process. § 174. 
 34 
 
530 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 GARNISHMENT— definition and nature. §97. 
 may issue in what cases. §§ 108-111. 
 may issue how early and late. § 113. 
 may issue concurrent with other processes. § 120, p. 198. 
 may issue in favor of whom. §§ 121-122, p. 152. 
 may issue against whom. §§ 126-128. 
 may issue from what courts. §§ 130-132. 
 what officer may issue. § 133. 
 form and essentials of affidavit. §§ 134-139. 
 effect of errors and omission. § 134. 
 form and essentials of process. §§ 141-147. 
 power of court and judge to control. § 150. 
 where process may run and be executed. § 161, pp. 353-359. 
 when process may be executed. §§ 162-163. 
 who may execute process. § 164. 
 how process served, and necessity of service. § 187. 
 notice to defendant. § 188. 
 for what garnishee is liable. §§ 168-180. 
 defenses available to garnishee. §§ 170, 201, pp. 142, 143, 163, 197, 
 
 203, 382-400. 
 rights of garnishee as to third parties. § 155. 
 answer and examination of garnishee. § 209. 
 lien and rights of creditor begin when. § 192. 
 lien and rights of creditor nature. § 195, pp. 458-463. 
 officer's return. § 212. 
 
 proceedings to quash, jurisdiction, procedure, and grounds. §§ 196-201. 
 intervention of claimants. §§ 197, 201. 
 matters which abate — death, laches, bond, judgment in main action, 
 
 etc. §§ 202-207, p. 390. 
 pending as a defense, p. 203. 
 payment under as a defense. §§ 224, 85, p. 72. 
 suspended by appeal, p. 496. 
 
 judgment in, no satisfaction of main judgment, p. 201. 
 not abated by taking execution on main judgment, p. 197. 
 to enforce judgment against a garnishee, pp. 150, 151. 
 available to a defendant recovering judgment, p. 152. 
 payment by agent without notice of. p. 246 
 plaintiff as garnishee, p. 235. 
 situs of debt for. pp. 72-77. 
 judgment as res judicata against debtor, p. 121. 
 
 GOVERNMENT — whether legislative department can delegate auditing 
 claims to courts, p. 262. 
 executions cannot issue against. § 129, pp. 261, 265. 
 cannot be made garnishee. § 129, p. 265. 
 
 GROUNDS — for charging garnishees. § 167. 
 for issuing attachment. §111. 
 
 for quashing executions, attachments and garnishments. §§ 199-201. 
 on which officers may become liable in executing processes. §§ 156-160. 
 
 GROWING CROPS— levies upon. § 177. 
 
 GUARDIANS — not liable to garnishment, and property held by exempt. 
 p. 410. 
 
INDEX. 531 
 
 Cases are referred to by pp., text by §§. 
 
 HABEAS CORPUS— obedience, how enforced. §92. 
 
 HABERE FACIAS SEISINAM — and habere facias possessionem defined. 
 
 HEIR — land in hands of liable to execution at common law. p. 138. 
 
 HOMESTEAD EXEMPTIONS— § 176, p. 401. 
 
 HUSBAND AND WIFE— as garnishees of each other. § 128. 
 
 jurisdiction to grant divorce, aifected by domicile, pp. 23, 63. 
 statute gives, p. 22. 
 
 IDENTITY — of person suing or sued shown by parol. §81. 
 
 of property described in levy shown by parol, pp. 342, 508. 
 of judgment on which execution issued, by parol, p. 294. 
 of issues in former trial shown by parol, p. 130. 
 of proceeds of exempt property, p. 402. 
 
 IMPAIR — the obligation of the contract, what does. p. 300. 
 
 IMPRISONMENT FOR DEBT— as part of the obligation of the contract, 
 p. 303- 
 history of the rise and abolition of. § 92, p. 139. 
 release satisfies judgment, p. 489. 
 escape, rights of officer and creditor, pp. 214, 351. 
 abolished or release gives right to set off, and new writs, pp. 471, 489. 
 and fieri facias used concurrent, pp. 19S, 196. 
 
 INADEQUATE' — ^price as reason for setting aside sale. p. 227. 
 levy, liability of officer. § 137. 
 
 INCORPOREAL PROPERTY-how liable to process. §§ 166, 173. 
 
 INCUMBERED PROPERTY— liability to processes. § 174. 
 
 INDEBTEDNESS — for which garnishees may be charged. § 170. 
 
 INDEMNITY — may be required by officer of creditor, from risk of writ 
 being void or property not liable. § 153. 
 from liability for doing unlawful act is void. p. 322. 
 for not serving processs, validity. § 153. 
 may be demanded after levy. p. 319. 
 promise of, not implied from direction to levy. § 153, p. 322. 
 
 tNDEX— of judgments. §§ 49-52. 
 
 INDORSEMENT— of levy on writ, effect of failure to make. § 185, pp. 432- 
 434- 
 requirements as to, in Statute of Frauds, p. 445. 
 
 INFANTS — executions against. § 127, p. 228. 
 as garnishees. § 128, p. 230. 
 not competent to be elected as constables, p. 215. 
 
 INFORMATION AND BELIEF— when sufficient in allegation of affidavit 
 for attachment and garnishment, p. 274. 
 
 INJUNCTION — against execution, effect on lien. p. 482. 
 
 in favor of garnishing creditor to prevent sale of property, pp. 4r,R 4(11 
 garnishment resembles. § 97. 
 
532 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 INNOCENT PURCHASERS— protected from reversal. § 224. 
 
 cut off by lien before levy. §§ 189-igo. ' ; 
 
 IN REM PROCEEDINGS— nature explained. §79. 
 effect of judgments in. § 78. 
 essentials to jurisdiction in. § 18, pp. 19, 43, 63. 
 
 INSANE PERSONS— executions against. § 127. 
 
 INSURANCE — money on exempt property exempt, p. 401. 
 
 INTERESTED OFFICERS— cannot usually act. §§ 133, 164, p. 364. 
 
 INTERESTS— liable to the processes. § 174. 
 
 INTERLOCUTORY— orders not judgments. §§ 8, 47. 
 judgments not res judicata. §86. 
 
 INTERNATIONAL hAW—situs of debt for garnishment, pp. 72-77. 
 
 judgments and decrees touching property out of state, effect, pp. 65-70. 
 exemption laws not extra-territorial, p. 77. 
 
 INTERPRETATION OF STATUTES— in view of the former law, the 
 mischief, and the remedy. § 42, p. 439. 
 leading to absurdities. § 38. 
 as retroactive, p. 304. 
 
 concerning attachment and garnishment, p. 171. 
 concerning contracts to include judgments. § 11. 
 concerning plaintiffs to include defendants, p. 152. 
 debtor includes debtors, p. 165. 
 act means section. § 36. 
 void means voidable. § 40. 
 
 INTERVENING CLAIMANTS— standing, procedure, issues, etc. §§ 196, 
 201, pp. 159, 168, 453. 4S2. 
 whose duty to call, power of court, p. 386. 
 effect of release of property on bonds by. pp. 421, 483. 
 
 INTOXICATING LIQUORS— liability to process where prohibited. § 173. 
 
 IRREGULARITIES — in judicial proceedings whether ground for collateral 
 
 attack. §§21, 3I-4S-. 
 in attachment and garnishment affidavits, whether ground for collateral 
 
 attacks. § 134. 
 in processes, effect. §§ 142-144. 
 as justification to officer for not executing process. § 146, pp. 183, 286, 
 
 289._ 
 of which garnishees and claimants can complain. § 201, pp. 163, 159, 
 
 168. 
 in execution sales, effect. §211. 
 
 ISSUES — concluded by judgments. §§ 72-74. 
 
 which may be made by defendant on proceedings to quash process. 
 
 § 200. 
 which may be made and tried by garnishees and claimants. § 201, 
 
 pp. 163, IS9, 168. 
 
 ISSUING — process defined. § 106. 
 
 process, in what actions, at what time, to whom, and against whom 
 
 available. §§ 107-129. 
 process, jurisdiction of court and officer. §§ 130-133. 
 
INDEX. ,. 533 
 
 Cases are referred to by pp., text by §§. 
 
 JACTITATION OF MARRIAGE— judgment on as res judicata, p. no. 
 
 JAILERS — whether liable as garnishees for property taken from prisoners. 
 pp. 413-417- 
 
 JOINT LIABILITY — when barred by recovery of judgment against part 
 of the debtors. §§ 74i 89. 
 
 severable by garnishment in favor of a creditor of one of the cred- 
 itors. § 174, p. 383. 
 
 made several and joint by statute enables attachment against one. 
 p. 164. 
 
 JUDGES — powers during vacation. §§ 150, 63, 196, pp. 307-311. 
 individuals agreed on are not de facto, p. 13. 
 
 JUDGMENT— defined. §§ 6-7. 
 kinds. § 47. 
 
 distinguished from, orders, opinion, etc. §§ 8-13. 
 roll, what is. § 49. 
 essentials of. § 46. 
 when and how recorded. §§ 48-52. 
 essentials of the record. §§ 54-56. 
 conclusiveness of the record. §§ 57-60. 
 vacating and amending. §§ 61-66. 
 when parties are not estopped by. § 80. 
 efifect of as estoppel. §§ 68-77. 
 who are parties and privies. §§ 78-82. 
 what is a sufficient judgment to estop. §§ 83-89. 
 because wrong form of action chosen is not bar. p. 329. 
 how enforced. §§ 90-93. 
 , need not expressly award execution, p. 79. 
 assignment of by parol without recording, p. 238. 
 assignment to a defendant satisfies. § 220. 
 assignment of part interest in. § 218. 
 rights of assignee. §§ 122, 218. 
 dormant, execution on. § 116. 
 outlawed, execution on. § 117. 
 whether liable to levy and right then. §§ 122, 174. 
 rendered after death of a party. § 20. 
 not satisfied by issuing and levying execution. § 120. 
 improperly described in execution, effect, p. 294. 
 setting off against other judgments. §215, p. 489. 
 payment of, to whom in what medium, etc. §? 218-220. 
 entering and setting aside satisfaction. §§ 221, 225. 
 in favor of defendant, effect on attachment and garnishment. § 206, 
 
 pp. 473-483- 
 where attachable by garnishment, pp. 406-408. 
 against a garnishee as a defense, pp. 72, 203. 
 lien of, origin, and nature, p. 438, §§ 189-195. 
 rendered same day stand on par. p. 470. 
 
 JUDICIAL SALES— §§210-211. 
 
 JURAT — omitted from affidavit, effect, p. 275. 
 
 JURISDICTION — of the court, derived from law. § 15, pp. 13, 17. 
 of the subject-matter, depending on law. pp. 17, 22. 
 of the subject-matter, depending on allegations. § 16. 
 of subject-matter, depending on location of it. § 16, pp. 65-77. 
 of parties depending on service or appearance. § 17. 
 of parties not essential to jvtdgments in rem. § 19. 
 
534 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 JURISDICTION, Continued— eSect of death of a party. § 2D. 
 effect of irregularities. §§ 21, 31-45. 
 effect of errors in the judgment. §§ 23-29. 
 to amend records. § 53, 
 to vacate and amend judgments. §§ 61-66. 
 to enter and set aside satisfaction. §§ 221, 225. 
 to issue processes. §§ 130-133. 
 to quash processes. § 196. 
 should appear on the record. §§ S9-60, p. 33. 
 contradicting record to disprove. §§ 58-60. 
 presumptions as to. § 55. 
 
 JURY — must be allowed to pass on indulgence as abuse of process, p. 467, 
 
 JUSTICES OF THE PEACE— presumptions as to jurisdiction of. § 55. 
 
 nature of records kept by. § 52. 
 
 record must show jurisdiction and is not conclusive. § 59. 
 
 liberal construction of entries made by. " p. 80. 
 power to amend records. § 53. 
 
 cannot amend or vacate judgments or set aside verdicts. § 63. 
 power to enter satisfaction on judgments. § 221. 
 power to appoint special deputies, p. 361. 
 power to stay and quash their processes. § 196. 
 judgments rendered by cannot be garnished in any other court, p. 408. 
 
 JUSTIFICATION— of officers under void writs. § 152. 
 
 of officer for breach of duty in executing or not executing processes. 
 
 §§ 156-160. 
 of officer in not executing writ, prior lien of process from another 
 court as. p. 338. 
 
 judgment satisfied as. pp. 182, 185. 
 
 process irregular as. § 146, pp. 183, 286, 289. 
 
 prior discovery by junior creditor as. p. 329. 
 
 KEEPERS — as garnishees for property taken from prisoners, p. 414. 
 
 of property may be sued by sheriff for not surrendering it on demand. 
 
 §155. 
 being in possession, sheriff mav endorse levy without new seizure. 
 
 § 184. 
 officers may appoint defendants as. § 204, pp. 425, 466. 
 
 KING — special advantages of under executions, pp. 139, 436, § 189. 
 
 LACHES — in asking to have judicial sales set aside, pp. 240, 487. 
 
 in not prosecuting garnishment as a ground for dismissing it. p. 390. 
 of sheriff in executing process which will make him liable. § 156, pp. 
 333-337- 
 
 LAND — how levied on under the statutes. § 182. 
 
 how far liable to execution at the common law. p. 138. 
 
 estates for years liable to H. fa. or elegit. § 98, p. 435. 
 
 made liable by statutes. § 179, p. 138. 
 
 description of essential to levy. pp. 342, 508. 
 
 lien of judgments on, origin and nature, pp. 434-440. 
 
INDEX. 535 
 
 Cases are referred to by pp., text by §§. 
 
 LAND, Continued — liable only from day judgment is recorded, ^nder Stat- 
 ute of Frauds, p. 444. 
 judgment lien not unite with lien of execution. § 195., 
 out of the state effect of judgments as to. p. 68. 
 
 LEASED CHATTELS— liability to execution against lessor. § I74- 
 
 LEASEHOLD— sold under A. fa. § 98, p. 435. 
 
 LEGISLATURE— jurisdiction of courts derived from. §§ 15, PP- }4, I7, 22. 
 power to give jurisdiction of person without personal service. § 17. 
 power to vacate judgments. §63. 
 power to delegate to courts the auditing and payment of claims against 
 
 the state, p. 262. 
 power to pass laws impairing the remedy. _ pp. 299-304. 
 not presumed to intend laws to be retroactive, p. 305. 
 See "Interpretation of Statutes." 
 
 LEVARI FACIAS— defined. § 100. 
 
 LEVY— what constitutes. §§ 182-184. 
 
 inventory, appraisement, etc., no part of. § 185. 
 
 description essential to indorsement. § 182, pp. 342, 508. 
 
 not necessary if the officer is in possession. § 184. 
 
 what subject to. §§ 171-180. 
 
 who may make. § 164. 
 
 Right to indemnity from liability for. § 153. 
 
 where may be made. § 161. 
 
 lien acquired by. § 195. 
 
 when may be made. §§ 162-163. 
 
 at night, valid, p. 317. 
 
 whether lost by loss of possession. § 204. 
 
 liability for improper or not making. §§ 156-160. 
 
 on property of stranger makes officer and bond liable. § 160, p. 324. 
 
 deficient, excessive, or oppressive, liability for. §§ 157, 159. 
 
 void when accomplished by fraud or illegal act. § 186. 
 
 breaking doors to make. §§ 152, 160, pp. 317, 428. 
 
 under void process is justifiable. § 152. 
 
 not a satisfaction. §§ 120, 214. 
 
 LIABILITY — for which garnishees may be charged. §§ 167-170. 
 
 of officers in executing or failing to execute processes. §§ 156-160. 
 of certain persons as garnishees. § 128. 
 
 of certain persons to have executions issued against them. §§ 126-129. 
 of clerks for not issuing process on demand. § 124, p. 218. 
 
 LIEN — of judgments, origin and nature. §§ 189-195, pp. 434-444. 
 
 of judgment does not unite with the lien of the levy, and is not con- 
 tinued by it. § 195. 
 of judgments rendered at same term equal, p. 470. 
 property subject to may be levied and sold. § 174, p. 380. 
 
 LIEN — of execution, attachment and garnishment, when it begins. §§ 189- 
 191, pp. 434, 435, 457- 
 
 of attachment and garnishment, when it begins. § 192. 
 
 of attachments, garnishments, and executions, whether divested by 
 delivery and other bonds. § 207, pp. 418, 477-483. 
 
 of execution expires on the return day unless the property is levied. 
 § 163. 
 
 of execution is liable to be cut off before levy by levy by another offi- 
 cer. § 194, pp. 341, 455. 
 
 not defeated by sale or bankruptcy by debtor. § 194, p. 435. 
 
536 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 LIEN, Continued — foreclosure of, consis .s of what. §§ 208-210. 
 effect of defects in or omission to foreclose. § 211. 
 not defeated by levy by same officer or his deputy under another writ 
 
 or payment to junior creditor. § 194, pp. 433, 452, 453. 
 defeated by sale under junior process, p. 446. 
 enables creditor to sue wrong-doer. § 195. 
 does not entitle creditor to possession. § 195. 
 abandoned by election of remedies, dropping processes, surrendering 
 
 possession, laches, failure of the action or judgment, giving bond, 
 
 etc. §§ 202-207. 
 
 LIFE — of the law is the execution. § 224. 
 
 of the process ends with the return day. § 163. 
 
 LIMITATIONS, STATUTE OF— sale on execution issued after judgment 
 outlawed. § 117. 
 not impair the obligation of contracts, p. 303. 
 
 LOSS — of property between levy and sale, who bears, pp. 213, 201, 352. 
 of the lien of the process in various ways. §§ 190-207. 
 
 LUMPING PROPERTY— at execution sales, when statute forbids, effect. 
 §211, p. 487. 
 sold subject to mortgage is necessary, p. 380. 
 
 LUNATICS— as garnishees. §§ 128. 
 
 executions against. § 127, p. 229. 
 
 MAIN ACTION — taking judgment in does not discharge garnishee, p. 197. 
 judgment for defendant in, abates garnishment, unless appealed from. 
 
 PP- 473-477- 
 garnishee's right to urge errors in. § 201, p. 163. 
 
 MANDAMUS— how enforced. §92. 
 
 lies to compel clerks to issue process. § 124. 
 
 the proper remedy to compel public corporations to pay judgments, 
 p. 255. 
 
 MANUSCRIPTS— whether liable to levy. §§ 173, 177. 
 
 MARRIAGE — suit for jactitation of, as res judicata, p. 109-119. 
 
 MARRIED WOMEN— as garnishees of husband<:. § 128. 
 executions against. § 127, p. 229. 
 
 MARSHAL — of U. S. courts may be sued in state courts, p. 325. 
 
 MARSHALING ASSETS— for execution creditors, p. 502. 
 
 MEASURE — of garnishee's liability. §§ 168, 170, p. 142. 
 
 of officer's liability for not making amount of process or not returning 
 
 it. § 158, pp. 342-347. 
 of care required of officers to escape liability for loss. pp. 350 -352. 
 of diligence required of officers to escape liability. . § 157, pp. 336-337. 
 
 MERGER — doctrine of applied to judgments. § 73. 
 
INDEX. 587 
 
 Cases are referred to by pp., text by §§. 
 
 MERITS^ — cannot be tried on motion to quash. § 200. 
 
 judgment is a bar only when it was on. § 87, p. 329. 
 concluded by foreign judgment. § 84. 
 
 MINORS — executions and garnishments against. §§ 127-128. 
 not competent to act as constables, p. 215. 
 
 MINUTES — of proceedings taken by clerks in court, nature, p. 3. 
 taken by the judge, proof of judgment by. §§ 12-13. 
 
 MISNOMER — of party suing or sued, judgment binds. § 81. 
 
 MISTAKE — as a ground for relief against judgments. § 65. 
 
 MONEY— liable to levy. § 171, p. 424. 
 
 for which garnishee is chargeable. §§ 169-170. 
 in custody of law not liable. § 180. 
 
 MORTGAGES— estates of mortgagors liable to process. § 174, pp. 274, 381. 
 mortgagor's estate liable after default, p. 274. 
 sale must be en masse, and costs not charged to mortgagee, p. 380. 
 equity of redemption liable to levy and sale. p. 510. 
 
 MOTION — for execution on dormant judgment, p. 194. 
 
 for continuance of action against garnishee till garnishment is dis- 
 posed of. p.^ 202 . 
 amendment of judgments on court's own. § 64. 
 amendment of records on court's own. § 53. 
 to vacate judgment or modify it. § 66, p. 106. 
 to quash processes. § 198. 
 
 to enter satisfaction on judgment record. § 221, p. 185. 
 to set aside satisfaction of judgment. § 225, pp. 507, 509, 512. 
 to amend officer's returns. § 212. 
 for execution on a satisfied judgment, p. 489. 
 to set ofif judgments. § 215, pp. 488-489. 
 to amerce officer for not executing process, pp. 184, 422. 
 to distribute proceeds of sale, and give priority, pp. 159, 329, 452, 4S3. 
 
 MUNICIPAL CORPORATIONS— as garnishees. § 129, pp. 256-261. 
 executions against. §§ 129, 179, pp. 254-255. 
 judgments against enforced by mandamus, p. 255. 
 
 NAMES — in judgment record fictitious or false, parties bound shown by 
 
 parol. §81. 
 of parties should all be correctly stated in the process. § 146. 
 should be inserted though part are dead. § 146. 
 being misstated does not make sale void, may be shown by parol. § 146, 
 
 p. 294. 
 of affiant and officer not being signed to affidavit do not make it void. 
 
 P- 275. 
 
 NATIONAL COURTS — officers of may be sued in state courts, p. 325. 
 executions from, governed by state laws. pp. 419, 455. ' 
 
 form of execution from. § 147. 
 
 NATURE — of the processes by which judgments are enforced. §§ 91-104. 
 of judgments. §§6-13. 
 
 NEGLIGENCE — for which the court will refuse to set aside a sale. pp. 
 240, 487. 
 which will deprive a creditor of his priority. § 205, pp. 464-467, 470. 
 
538 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 NEGLIGENCE, Continued— creditor not liable for ofHcer's. p. 322, § IS3- 
 which will render the officer liable. §§ 156-160, pp. 336, 337, 346, 350- 
 3S2. 
 
 NEGOTIABLE PAPER— debts in current, whether garnishable. pp. 396- 
 398. 
 whether liable to levy. § 173. 
 checks and drafts as assignments of fund. p. 399. 
 
 NEWSPAPER— publication of notice in, affidavit of. p. So. 
 
 NIGHT-TIME— levy of execution in, validity, p. 317. 
 
 NISI JUDGMENTS— § 47- 
 
 NON-RESIDENTS— may be served by publication, as basis of judgment 
 in rem. § 16. 
 may attach, and even on the ground that the defendant is a non-resi- 
 dent. § 121. 
 
 NONSUIT — when no bar to new action. § 87. 
 
 NOTES AND BILLS— current garnishability of funds, p. 397. 
 liability to levy. § 173. 
 as assignment of fund drawn on. p. 399. 
 
 NOTICE — necessary to jurisdiction in personam. § 17. 
 necessary to jurisdiction in rem. § 18, p. 45. 
 of proceedings to amend record. § S3, P- 82. 
 to attachment defendants and garnishees. § 187. 
 to defendant of levy and garnishment. § 188. 
 of execution sale, nature of, and effect of defects. §§ 210, 211. 
 to officer that process is void, effect. § 1S2. 
 
 OATH— See "Affidavit." 
 
 OBLIGATION — defined and discussed, impaired or fraudulently contracted, 
 pp. 176, 300. 
 
 OFFICERS — See "Clerks of Courts," "Judges," "Justices of the Peace," 
 "Sheriffs and Constables," "Deputies," "De Facto." 
 
 OFFICIAL BOND — of sheriffs liable for levy on property of stranger to 
 writ. p. 326. 
 
 of clerks liable for refusal to issue process, p. 218. 
 
 of officer not liable for failure to complete execution of process com- 
 menced during former term. p. 347. 
 
 OFFSETS — available to garnishees. §§ 170, p. 143. 
 of judgments. § 215, p. 489. 
 
 OMISSION — of indorsement of levy, effect. § 185, p. 432. 
 
 to do things required in advertising and selling, effect. § 211. 
 of signatures from attachment affidavit, p. 275. 
 of amount from execution. § 145. 
 
 OPENING— judgments. §§61-66, pp. 479-483. 
 execution sales. §§210, 211, pp. 240, 487. 
 
 OPINION — not the judgment and cannot modify it. § 10. 
 
INDEX. 539 
 
 Cases are referred to by pp., text by §§. 
 
 ORDERS — distinguished from judgments. §8. 
 
 for entry of judgments distinguished from jud^ents. p. ii. 
 of distribution of money in court, effect on garnishabihty. p. 411. 
 for money as assignments of funds, p. 399. 
 by creditor to officer must be obeyed by him. § 122, p. 222. 
 by creditor to officer not to proceed, render the process nugatory, pp. 
 446, 467- 
 
 OUTLINES — of this treatise given as each topic is introduced. See also 
 table of contents. 
 
 PAROL — assignment of judgment, valid, p. 238. 
 See "Evidence." 
 
 PARTIES— who are. §81, pp. in, 121. 
 
 in what suits bound by judgment against them. § 80. 
 
 suing and sued by false name are bound by judgment. § 81. 
 
 nominal are not bound by judgment. §81. 
 
 misnamed in the process does not make it or the sale void. § 146, p. 294. 
 
 nonjoinder of and proceeding to judgment extinguished their liability. 
 
 §§ 74, 89. 
 who are to issue against garnishee, p. 121. 
 entitled to notice of proceedings to amend record. § 53. 
 
 PARTNERS — liability of interests of to process in actions against one. 
 pp. 382-386, 166. 
 attachments against one for firm debt. p. 163. 
 attachment against all for act of one. pp. 165, 166. 
 whether one can sue the other by attachment for accounting, p. 161. 
 
 PATENT RIGHTS— liability to sale to satisfy judgments. § I73- 
 
 PAWNED AND PLEDGED PROPERTY— liability to levy. § 174. 
 
 PAYMENT — of judgment not recorded, effect of subsequent sale on execu- 
 tion. § 118. 
 
 of bid by the creditor cannot be demanded by the officer to get his 
 fees. § 122. 
 
 after notice of assignment does not satisfy. § 122. 
 
 after notice of sale of part interest. § 218. 
 
 whether it may be set up by officer to justify not executing, pp. 183, 
 i8s, 186. 
 
 when may be made to attorneys, clerks of court, sheriffs, etc. §§ 163, 
 218, pp. 497-499- 
 
 by defendant to officer to whom he has had process issued without 
 creditor's orders, p. 499. 
 
 by sale to a bona fide purchaser on process issued without the cred- 
 itor's orders, p. 227. 
 
 into court after a transcript has been taken to another court. § 132. 
 
 by a defendant by way of taking an assignment. § 220. 
 
 to an attorney or officer in other than money. § 219, p. 498. 
 
 by garnishee to defendant pending appeal from judgment discharging 
 him. p. 476. 
 
 under garnishment in justice court after a transcript taken to another 
 court no defense, p. 270. 
 
 under garnishment in another state as a defense, pp. 72-77. 
 
 under garnishment generally as a defense, pp. 202-204. 
 
 whether taking judgment against a garnishee operates as. p. 201. 
 
540 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 PAYMENT, Continued — renders an execution void that was issued before. 
 
 pp. i86, 187, 222. 
 by officer to junior creditor, rights of senior. § 19S, pp.. 433-434- 
 by the sheriff for failure to collect satisfies, pp. 490-493. 
 of either of several judgments for the same demand satisfies all. 
 
 §§ 73, 216. 
 of bid by purchaser at execution sale cannot be refused because no 
 
 title passed, p. 513. 
 methods of compelling, of judgments and decrees. §§ 91-93. 
 levying an execution as. §§ 120, 214. 
 by sheriff of money received after return day cannot be compelled by 
 
 attachment or action on his bond. § 163. 
 to deputy having unsealed execution, sheriff liable, p. 286. 
 
 PENDING — garnishment as a defense, p. 202. 
 
 PERSONAL PROPERTY— liable to attachments, garnishments, and exe- 
 cutions. §§ 167-180. 
 
 PERSONS — against whom the processes may issue. §§ 126-129. 
 public corporations are. p. 257. 
 entitled to control the processes. §§ 121-125. 
 
 PETITION — filing of is commencement of action. § 114. 
 what must state to give jurisdiction. § 16. 
 
 PLACE— of holding court. § 14. 
 
 of holding execution sales. § 210. 
 where processes may be executed. § 161. 
 
 PLAINTIFF— as garnishee. § 128, pp. 234-237. 
 
 garnishee not chargeable for what he owes. , § 126. 
 judgment against, enforced by garnishment, p. 152. 
 entitled to control process, command it issued or order it not to be 
 
 executed. § 121, p. 222. 
 not bound to pay his bid for less than judgment. § 122. 
 being clerk, may issue process in his favor. § 133. 
 may not execute his own process. § 164. 
 liable to officer and for his torts in specified cases. § 153. 
 when liable to'officer for damages paid by him. § 153. 
 whep affected by officer's delay, p. 464. 
 purchasing at sale, rights and liability on reversal. § 223. 
 
 PLEADING AND PRACTICE— what declaration must state to give juris- 
 diction. § 16. 
 
 summons to the defendant in any action. § 17. 
 
 summons to the defendant in attachment. § 187. 
 
 summons may be issued and served after the levy and garnishment. 
 § 114, p. 178. 
 
 summons to the garnishee. § 187. 
 
 notice to the defendant of the attachment, garnishment, or execution 
 levy. § 188. 
 
 issues which may be made on proceedings to quash. § 200. 
 
 issues which may be made by or with claimants. § 201. 
 
 issues which may be made by or with garnishees. §201, pp. 163, 383. 
 
 procedure to try priority between creditors, pp. 159, 452, 168. 
 
 procedure to get relief from judgment. §§ 61-66. 
 
 procedure to amend records. § 53. 
 
 prior garnishment pending, how pleaded as defense, p. 202. 
 
 setting off judgments. § 215 
 
 entering and vacating satisfaction. §§ 221, 225, pp. 506, 507. 
 
 proper forms of affidavits in attachment and garnishment. §§ 134-139. 
 
INDEX. 541 
 
 Cases are referred to by pp., text by §§. 
 
 PLEADING AND PRACTICE, Continued— pvopev forms of writs. §§ 141- 
 
 147- 
 attachment bonds. § 140. 
 proper practice as to j udgment records. §§ 49-52. 
 
 PLEDGED PROPERTY— liable to the processes to satisfy judgments. 
 § 174. 
 
 POSSESSION — on which garnishee may be charged. § 169, po. 372-379- 
 being abandoned by the garnishee, rights of plaintiff, p. 463. 
 not being retained by the officer, effect on the levy and lien. § 204, 
 
 pp. 426, 464. 
 officer having does not need to make actual levy under each writ. § 184. 
 usually essential to a levy on chattels. § 183. 
 
 by one court prevents levy under any process from any other. § 180. 
 of unmatured note by maker renders him liable as garnishee, p. 397. 
 
 PREMATURE ACTION— dismissed no bar to proper action. § 87. 
 
 PRESUMPTIONS — of jurisdiction when the record does not show it. §§ 55, 
 
 59. P- 33: 
 of satisfaction of judgment from lapse of time. §217, p. 193. 
 
 PRINCIPAL AND AGENT— See "Agent." 
 
 PRINCIPAL AND SURETY— "See "Surety." 
 
 PRIORITY — ^between creditors under the various processes, and other per- 
 ' sons. §§ 189-192. 
 
 between creditors under judgments rendered the same day. p. 470. 
 
 lost by indulgence, p. 464. 
 
 of right not observed by the sheriff in levying, effect on lien. pp. 335, 
 452. 
 
 PRISONER— while defendant is under ca. sa. rights under judgment sus- 
 pended, p. 488. ' 
 property taken from, not liable to process, p. 414. 
 
 PROCEEDS — of execution sale not liable to levy by sheriff on writ against 
 plaintiff, p. 422. 
 motion for distribution of, and priority, pp. 159, 329, 452, 453. 
 paid to junior creditor, senior may sue for. p. 434. 
 purchaser at sale need not care who gets. § 212. 
 officer in doubt should ask court to distribute, p. 422. 
 improper distribution does not release surety, p. 503. 
 of exempt property exempt, pp. 400-403. 
 
 PROCESS — form and essentials. §§ 141-147. 
 
 kinds used to enforce judgments. §§ 91-104 
 
 in what causes, at what time, for and against whom they may issue 
 §§ 107-129. i 
 
 what courts and officers may issue. §§ 130-133. 
 
 court's control of. § 150. 
 
 officer's rights and liability under. §§ 151-160. 
 
 when, where and by whom executed. §§ 161-164. 
 
 who begins must finish, pp. 192, 347. 
 
 what liable under. §§ 165-180. 
 
 how properly levied and served. §§ 181-188. 
 _ the lien under, beginning and nature. §§ 189-195. 
 " Hen how lost and foreclosed. §§ 196-212. 
 
 the officer's return. § 212. 
 
 vacating, staying, and quashing. §§ 196-201. 
 
542 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 PROMISORY NOTES— liability to levy. § 173. 
 
 current as defense to garnishment of debt. p. 397. 
 
 PROPERTY — which may be taken to satisfy judgments. §§ 165-180. 
 
 PUBLIC CORPORATIONS— property of not liable to levy. § 129. 
 
 PUBLIC OFFICERS— See "Judges," "Clerks," "Justice of the Peace." 
 
 PUBLIC PROPERTY— not liable to execution. § 179. 
 
 PUBLICATION — whether jurisdictional to proceedings in rem without 
 service. § 18, pp. 20, 47. 
 what is affidavit of by "printer." p. 50. 
 
 PURCHASER — from debtor after lien attaches gets title subject to lien. 
 § 195, P- 43S- 
 
 at sheriff's sale takes chattels free from lien of senior writ. p. 446. 
 
 at execution sale is not affected by subsequent reversal of the judg- 
 ment. § 223. 
 
 at execution sale need not see that proceeds are accounted for. § 212. 
 
 at execution sale, how affected by irregularities. §211. 
 
 at execution sale has no warranties of title or quality, pp. 510-514. 
 
 must pay his bid though title fails, p. 514. 
 
 at execution sale, plaintiff and his attorneys as. § 223. 
 
 QUASHING — processes, jurisdiction of judge during vacation, 
 of processes, what courts have jurisdiction. § 196. 
 of processes, who may ask. § 197. 
 of processes, grounds that defendants may urge. § 200, 
 18";. 202. 
 
 §150. 
 
 pp. 226, 196, 
 
 3. 
 163. 
 
 185, 202. 
 of processes, grounds that claimants may urge. § 201, p. 168 
 of processes, grounds that garnishees may urge. § 201, p. i 
 of writ and sale not authorized by plaintiff, p. 227. 
 
 QUASI PUBLIC CORPORATIONS— as garnishees, pp. 245-253. 
 sale of property of on executions, etc. pp. 238-245. 
 
 QUESTION OF LAW AND FACT— as to what is abuse of process by 
 indulgence, p. 467. 
 
 RAILROADS — as garnishees exempt how far. p. 250. 
 property of liable to levy and sale. pp. 238-245. 
 
 RATIFICATION— by plaintiff of process issued without his authority, 
 p. 226. 
 
 REAL PARTY— in interest bound by judgment and identified by parol. § 8i. 
 
 REAL PROPERTY— always liable for debt to king. p. 139. 
 
 made liable to judgments generally by statute. § 102, d. 139. 
 
 always liable on judgment against heir for debt of ancestor, p. 139. 
 
 made liable to judgments generally by statute. § 102, p. 139, 
 
 words of Westm. 2d, c. 18, concerning, p. 140. 
 
 words of 5 Geo. II, making lands in America liable. § 98, 
 
 words of Statute of Frauds, as to lien. p. 444. 
 
 whether liable before or after chattels. § 98. 
 
INDEX. 543 
 
 Cases are referred to by pp., text by §§. 
 
 REAL PROPERTY, Continued— lisn on, origin of. § 189, p. 438- 
 sheriff liable for levying on out of order. § 159. 
 what estates in liable to levy. § 174. 
 lien on begins at what time. § 189, p. 434. 
 action by creditor for injury to. § 195. 
 lien on lost by expiring after levy and before sale. § 195. 
 charging garnishees for. § 166. 
 
 description of essential to certificate of levy. pp. 342, 508. 
 levied on without entry. § 182. 
 sheriff's deed misdescribing judgment. §211. 
 effect of defects in sale. §211. 
 
 REASONABLE CARE— whether sufficient to excuse sheriffs. § 156, pp. 
 350-352. 
 
 RECAPTION— rights of officers and creditors. § 204, pp. 212, 351, 462. 
 
 RECEIPTOR— liable to sheriff if he fails to deliver on demand. § 155. P-352. 
 liability of officer for property lost by. p. 352. 
 
 being in possession the sheriff may levy new writ by mere indorse- 
 ment. § 184. 
 
 RECEIVERS — may be garnished by consent of court appointing them. p. 412. 
 will be appointed to take care of property abandoned by a garnishee, 
 p. 463. 
 
 RECORD— of judgments. §§49-52. 
 of judgments defined. §48. 
 English practice as to making. § 49. 
 of judgments distinguished from judgments. §§ 12-13. 
 American practice. §§ 50-Si. 
 justice court. § 52. 
 
 when and how may be entered and amended. §§ S3, 12, 13. 
 not modified by matter in opinion filed. § 10. 
 matters essential to and presumptions in aid of. §§ 54-56. 
 strangers protscted in relying on. § 12. 
 conclusiveness of. §§ 57-60, 12. 
 entry by attorneys on court's direction valid. § 12. 
 nature of memoranda taken by clerks during sessibns. p. 3. 
 never entered, proof by parol. § 13. 
 
 effect of execution issuing before record entered. § 12, pp. 3-12. 
 not showing satisfaction, effect of sale on execution. § 118. 
 of levy, effect of none, whose duty to make. pp. 342-343. 
 jurisdiction and procedure to have satisfaction entered on or vacated. 
 §§ 221, 225. 
 
 RECOUPMENT— right to by garnishee, pp. 142, 391. 
 
 REDEMPTION — equity of whether liable to levy and sale. pp. 274, 510. 
 
 RELATION — of judgment back to first day of term. § 190. 
 of execution to first day of term. § 190, p. 189. 
 of lien to the date of the writ. § 189. 
 
 RELEASE — of property levied on, whether it satisfies judgment. §120, p. 217. 
 of defendant from imprisonment as satisfaction, p. 489. 
 of defendant on insolvent affidavit revives right to set-off, new writ, 
 
 etc. pp. 489. 472- 
 of property on bond, effect on lien. § 207, pp. 421, 479-483. 
 of levy by bond for appeal, injunction, stay, etc., effect on lien. pp. 477- 
 
 483. 
 of levy by taking new writ and levy. pp. 468-469. 
 of priority by giving debtor time. pp. 464-467. 
 
544 INDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 RELEASE, Continued— oi lien on remainder by levy on part. § 202, p. 472. 
 of attachment and garnishment by judgment for defendant, pp. 473-477- 
 of levy by opening judgment. § 206. 
 
 REMAINDERS— whether liable to the processes. § 174. 
 
 REMEDY— impaired is obligation of contract impaired. § I49. PP- 299-304- 
 may be changed in form at will of legislature. § 149, PP- 305-300. 
 
 REMOVAL — of property must be made by officer when levied on premises 
 of stranger. § 100. 
 of property by defendant and sale in another county not defeat hen. 
 
 §194- „^ „ . 
 
 whether necessary to valid levy. §§ 183, 204, p. 404. 
 
 REPLEVIN — writ peculiar in embodying execution. §95. 
 
 for property levied on can be maintained only in same court. § 154, 
 
 P- 32s. 
 RESCUE— no defense to officer, he may retake or levy on other property. 
 
 pp. 213, 214, 351. 
 
 RES JUDICATA— meaning of the term. § 68. 
 origin of the doctrine. § 68. 
 treated at large in §§ 68-8g. 
 classification of matters barred. § 71. 
 what causes of action are barred. § 74. 
 what matters aside from claims and counter-claims are concluded. 
 
 §§75-77- 
 matters collaterally in question. § 76, p. 119. 
 matters inferable by argument. § 77, p. 123. 
 who are bound. §§ 69, 81, 82, p. 121. 
 in what actions parties are bound. § 80. 
 who are parties. § 81. 
 who are privies. § 82. 
 
 effect of verdicts and foreign judgments as. §85. 
 effect of the court's jurisdiction on. §85. 
 judgment must be final, on merits, subsisting, and in personam. §§ 86- 
 
 .89. 
 
 judgment because action inappropriate is not. p. 329. 
 
 RETROACTIVE LAWS — changing procedure constitutional but not to be 
 inferred as intended, p. 306. 
 granting exemption, staying execution, etc., impair the obligation. 
 PP- 299-304. 
 
 RETURN BY OFFICER— title of purchaser does not depend on. § 212. 
 what it is and what it should state. § 212. 
 estops him. p. 434. 
 
 amendable at will of officer till filed. § 212. 
 of no effect till attached and filed, p. 434. 
 valid though not made till after return day. § 212, p. 320. 
 sale after, valid, pp. 347, 469. 
 levy after void. § 163. 
 officer liable for not making before return day. § 157, p. 343. 
 
 RETURN DAY — not stated, impossible, or wrong, does not make writ 
 void. § 147, pp. 288-292. 
 
 levies made after are absolutely void. § 163. 
 
 payment to sheriff after, not binding on bond nor enforced by attach- 
 ment. § 163, 
 
 payment to officer after, not binding on creditor. § 218. 
 
 advertisement and sale after valid. § 163, p. 469. 
 
INDEX. 545 
 
 Cases are referred to by pp., text by §§. 
 
 RIGHT OF ACTION— on which attachment may issue. § no. 
 for which garnishee may be charged. § 169. 
 
 RIGHT OF WAY— of railroad, when liable to levy. pp. 338-345. 
 
 REVERSAL — of judgment entitles defendant to restitution from creditor. 
 §223. 
 .of judgment does not impair title of purchaser at sale. §224. 
 of judgment discharging garnishee after he has paid. p. 476. 
 of judgment in main action after garnishee has paid creditor, gar- 
 nishee protected. § 224. 
 of judgment destroys effect as res judicata. §88. 
 
 RULES — distinguished from judgments. §8. 
 
 SALES — under executions, how conducted and effect of defects in. §§ 210, 
 
 211, p. 487. 
 after return day and return of writ are valid, pp. 347, 469. 
 by officer whose term has expired, p. 347. 
 under writ issued without plaintiff's orders valid, p. 227. 
 to third party not avoided by judgment being vacated. §224. 
 to plaintiff or his attorney avoided by reversal. § 223. 
 by defendant after lien attached passes title subject to lien. § 195, pp. 
 
 333, 435- 
 
 SATISFACTION OF JUDGMENTS— plan of treatment. § 90. 
 by what processes enforced. §§ 91-104. 
 effect of a levy or arrest as. §§ 120, 214, pp. 205-217. 
 taking judgment against a garnishee is not. p. 201. 
 execution sale after, void. § 118. 
 
 no defense to officer for not executing process, pp. 183-186. 
 by setting one judgment .against another. § 215. 
 by recovering another judgment. §§ 73, 216. 
 by lapse of time. § 217. 
 
 by payment, to whom and in what medium is. §§ 218-219. 
 by a defendant taking an assignment. § 220. 
 by recovery of sheriff for failure to collect. § 220, pp. 490-493. 
 power to enter and vacate. §§ 221, 225. 
 appeal after. § 222. 
 
 reversal after, defendant's right to restitution. §§ 223, 224. 
 by sale of exempt property or property of stranger. § 225, pp. 505-514. 
 
 SCHOOL DISTRICTS— as garnishees, p. 261. 
 
 SCIRE FACIAS— first given by Stat. Westm. 2d, p. 138. 
 
 execution issued on dormant judgment without, not void. § 116, p. 193 
 to revive judgments after death of a party. § 119. 
 
 SEAL — ^process without, whether void. §§ 142-144, pp. 280-285. 
 
 SECRET LEVIES— void. § 183. 
 
 SERVICE— to acquire jurisdiction of the person must be personal. S 17 
 how far essential to jurisdiction in rem. § 18, pp. 20, 39-47. 
 essential in attachment. § 187. 
 on garnishees essential. § 187. 
 
 on defendant of notice of attachment, garnishment, or execution S 188 
 on opposite party of notice of proceedings to amend judgment record 
 § S3, p. 82i 
 
546 INDEX. ' 
 
 Cases are referred to by pp., text by §§. 
 
 SERVICE, Continued — who may make. § 164. 
 who begins must finish, pp. 192, 347. 
 where mav be made. § 161. 
 out of the state, effect of. p. 55. 
 when may be made. §§ 162-163. 
 
 SEQUESTRATION— commission in, effect in creating lien. p. 338. 
 
 SET-OFF— of judgments. ,§215. 
 
 of judgments, right to suspended by arrest of defendant on ca. sa. 
 
 p. 488. 
 to which a garnishee is entitled. § 170, pp. 142-143. 
 
 SETTLEMENT— by parties while officer has writ to collect binds him with- 
 out payment of fees. no. 222, 187. 
 
 SHERIFFS AND CONSTABLES— de facto, acts valid, but they not pro- 
 tected, p. 215. 
 
 liability in general for acts and omissions of themselves and deputies. 
 §§ 156-160. 
 
 retain authority till notified of discharge, p. 332. 
 
 bound to obey creditor's orders. § 157, p. 223. 
 
 liable to defendant for levy after plaintiff orders writ returned, p. 222. 
 
 have no right to control writ to get fees. § 122. 
 
 who begins execution must finish though his office meanwhile expires, 
 pp. 192, 347. 
 
 protected by writ fair in its face, but liable for acts under obviously 
 void writ. § 152. 
 
 right to indemnity of creditor. § 153. 
 
 may be sued in another court. § 154. 
 
 when may sue concerning the property. § 155. 
 
 who hold property under process and none other can levy under other 
 process. §§ 163, 180, p. 367. 
 
 and their deputies how far one officer, pp. 329-337, 367-369, 452. 
 
 cannot set up payment as excuse for not executing, pp. 183, 185, 186. 
 
 cannot collect on execution after they have paid for not executing, 
 pp. 490-493- 
 
 may amend return at any time bef-^re filing. § 212. 
 
 power to receive payment, §§ 218-219. 
 
 estopped by return, p. 434. 
 
 not liable on implied warranties at sales, p. 514. 
 
 SHERIFFS' SALES — manner of conducting and effect of defects. §§ 210- 
 211. 
 
 SIGNATURE — of affiant and officer omitted from affidavit, p. 275. 
 of clerk omitted from writ, effect. §§ 142-144, p. 280. 
 of clerk or deputy with improper addition, effect. § 133. 
 
 SIGNING JUDGMENT— explained. §49. 
 
 SITUS — of debts for purpose of garnishment, pp. 71-77. 
 
 SOVEREIGNTY — does not extend to property out of state, p. 68. 
 execution cannot i^sue against. § 129, p. 262. 
 
 SPLITTING CAUSE OF ACTION— as bar to future action. §§74, 89. 
 may be done by garnishment, p. 383. 
 
 STATE COURTS— bound to give full faith and credit to garnishment in 
 another, p. 77. 
 judgments in are not foreign in another state. §84. 
 
INDEX. 547 
 
 Cases are referred to by pp., text by §§. 
 
 STATE COURTS, Continued^cannot entertain replevin from U. S. mar- 
 shal, p. 325. 
 may entertain action against U. S. marshal for wrongful levy. p. 325. 
 
 STATUTES— Westm. 2d, c. 18, in full with translation, p. 140. 
 
 Westm. 2d, c. 18, made land liable to elegit, causing judgment lien. 
 
 PP- 139, 438. 
 S Geo. II, making American land liable to execution. § 98. 
 29 Car. II, §§ 13-16, restricting liens, in full. p. 444. 
 construed so as to suppress the mischief and advance the remedy. § 42, 
 
 p. 439. 
 on attachment and garnishment construed liberally, p. 171. 
 reti-oactive as to procedure are valid, p. 305. 
 
 exempting property after contract made impair the remedy, pp. 299-304. 
 of limitations not impair obligation of contract.' p. 303. 
 of limitations having run on judgment, sale void. § 117. 
 
 STAY OF EXECUTION— constitutionality of law. p. 302. 
 
 discretionary power of court and judge to give. § 150, p. 311. 
 
 validity of process issued in violation of. § 115, p. 182. 
 
 by appeal, error, etc. pp. 473-483. 
 
 does not su.spend estoppel of judgment. §88. 
 
 STOCK EXCHANGE— seat in liable to process. § 173- 
 
 STRANGERS — not estopped by judgment. §69, p. 121. 
 may dispute the record. § 58. 
 
 protected in relying on record, not bound by files. § 12. 
 property of cannot be levied on. § 172. 
 process cannot issue against, and garnishees cannot be charged for 
 
 what they owe. § 126. 
 right to sue officer and parties. § 160, pp. 312-316. 
 right to intervene and what they may complain of. §§ 197, ,201. 
 right to sue on officer's official bond. p. 326. 
 
 STYLE OF PROCESS— effect of error or omission. §§ 142-144, pp. 279, 
 287. 
 
 SUBJECT MATTER— jurisdiction of, double meaning. § 15, pp. 22, 23. 
 
 SUBROGATION — when junior creditors, sureties, and co-defendants pay- 
 ing are entitled to. § 220. 
 officers paying for failure to collect entitled to. p. 493. 
 purchaser at sheriffs' sales entitled to if title fails, p. 514. 
 of junior creditor paying prior judgment, p. 333. 
 
 SUCCESSIVE LEVIES — may be made under the same writ. § 202, p. 473. 
 under different writs, rights of the respective creditors, pp. 369, 433, 
 452, 471, 486, 159. 
 
 SUMMONS— form and essentials of. §§ 141-147. 
 
 service of essential to jurisdiction of person. §§ 17, 187. 
 
 how far essential to jurisdiction in rem. § 18, pp. 41-47. 
 
 need not be issued till attachment levied, p. 178. 
 
 served out of state, efifect of. p. SS- 
 
 in attachment without return day, attachment good. p. 291^ 
 
 See "Process." 
 
 SUNDAY — attachment issued on without summons valid under statute, 
 p. 178. 
 
 SUPERSEDEAS— effect on lien of writ. pp. 453, 477-483. 
 effect of appeal as. pp. 473-479. 
 does not suspend estoppel of judgment. § 88. 
 
548 TNDEX. 
 
 Cases are referred to by pp., text by §§. 
 
 SURETIES— and principal remain such between themselves after judgment 
 against them. § 80, p. 501. 
 
 are released by releasing levy or priority on property of principal. § 74. 
 p. 291. 
 
 ignorance of the relation avoids discharge, p. 501. 
 
 not released by erroneous decree giving priority to another and 
 acquiesced in. p. 503. 
 
 on official bond liable to stranger for levy on his property, p. 326. 
 
 entitled to be subrogated on paying judgment, and may take assign- 
 ment, some say. § 220, pp. 494-496. 
 
 SUSPENSION— of effect of judgment as estoppel. § 88. 
 
 of release of attachment and garnishment by appealing from judgment 
 
 for defendant, pp. 473-377. 
 of execution by appeal, injunction, etc., effect on lien. pp. 479-483. 
 of right to execution, set-off, etc., by levy of another execution. §§ 120, 
 
 214, pp. 19S-217, 488. 
 execution issued in violation of valid. § 115,. 
 
 TENANT IN COMMON— liability of interest of to process. § 174, p. 382. 
 
 TENANT FOR YEARS— interest of liable to A. fa. or elegit. § 98, p. 425. 
 
 TERM OF COURT— lasts till next or adjournment. § 64, p. 5. 
 what relief from judgments may be given at same. §64. 
 what relief from judgments may be had after. § 65. 
 court may be held only during. § 14. 
 powers of judge out of. § 150, p. 311. 
 
 TERM OF OFFICE — powers of sheriffs to execute process after. § 163, 
 pp. 192, 347. 
 
 TERM OF YEARS— estate for, liable to A. fa. or elegit. § 98, p. 425. 
 
 TESTE — of process, nature and purpose. § 141, p. 277. 
 effect, of error in. p. 277. 
 
 THIRD PERSONS— See "Strangers." 
 
 TIME — courts act only in term. § 14. 
 
 during which records of judgments may be made. § 53. 
 
 during which relief may be had from judgments. §§61-66. 
 
 during which processes may be issued. §§113-119. 
 
 during which processes may be executed. §§ 162-163. 
 
 during which attorneys 'and officers may receive payment. §§ 218, 163. 
 
 during which sale will be set aside for errors, pp. 240, 487. 
 
 TITLE — of defendant not divested by levy or garnishment. § 195, pp. 203, 
 211, 485, 143. 
 interpleading claimants to try. §§ 197, 201, p. 386. 
 no warranty of at execution sales. §225, pp. 510-514. 
 rights of creditor and purchaser on failure of. § 225, pp. 505-514. 
 
 TORT — garnishee cannot be charged on liability for. §§ 170, p. 393. 
 not changed by mere verdict, p. 393. 
 when may be waived, and suit in assumpsit with attachment brought 
 
 p. 154- 
 when attachment lies for. § no. 
 
INDEX. 549 
 
 Cases are referred to by pp., text by §§. 
 
 TORT, Continued — judgment for not a contract. § ii. 
 
 liability of sheriffs and constables for. §§ 156-160. 
 of officer, when creditor liable for. § 153. 
 
 TRANSCRIPT — of judgment being filed in another court, effect on powers 
 of each. § 132. 
 effect of writ issued under transcript before it is filed, pp. 146. 353- 
 357- 
 
 TREASURER — of corporation as its garnishee, p. 373. 
 
 TROVER — when officer having process may maintain.' § 155. 
 creditor cannot maintain. § 195. 
 
 TRUSTEE PROCESS — as a name for garnishment, where used. p. 144. 
 
 UNLIQUIDATED CLAIMS— right to attachment on. §110, pp. 155-158. 
 charging garnishee on. § 170. 
 
 VACATING— judgments. §§61-66, p. 311. 
 processes. §§ 150, 196-201, p. 311. 
 sales. §211, pp. 240, 487. 
 satisfaction. § 225, pp. 505-514. 
 
 VACATION — ^powers of the judge during, pp. 307-311. 
 
 VARIANCE— between judgment and execution, effect, p-. 294. 
 
 VENDITIONI EXPONAS— whether necessary to hold sheriff for default. 
 P- 465- 
 confers no new powers, unnecessary to sale. p. 347. 
 lies to compel sale if sheriff in office, pp. 192, 210. 
 
 VERDICT— does not estop. § 84. 
 
 judgment distinguished from. § 9. 
 
 does not make tort liability garnishable. p. 393. 
 
 VOID AND VOIDABLE PROCESS— attempted distinctions. §§ 142-144, 
 pp. 288, 291. 
 rights and liabilities of officers receiving. §§ 152, 153. 
 
 WIFE — as garnishee of husband. § 128. 
 
 WOMEN — executions against. § 127. 
 
 WORDS AND PHRASES— See "Definitions." 
 
 WRITS — See "Processes," and special matter under each particular writ by 
 name. 
 
RECENT LAW BOOKS 
 
 PUBLISHED BY 
 
 GEORGE WAHR, Ann Arbor, Mich. 
 
 DWYER, — Cases on Private International Law. By John W. Dwycr, 
 University of Michigan. 8vo, 509 pages. Buckram, $2.50. 
 
 This is a very excellent collection of cases on private international law made by 
 Mr. Dwyer. covering a variety of subjects, and is intended especially for the use of 
 students, though certain to prove interesting and valuable to all practitioners. — Al- 
 bany Law Tournal. 
 
 1 have examined with care Dwyer's "Cases on Private International Law", and 
 find them judiciously selected and edited. The author has succeeded in presenting 
 in a small compass many important decisions in which the leading doctrines of this 
 branch of the lajv are exhibited and applied in a manner to make the book useful 
 alike to the student and to the practitioner. I trust the work will meet with the 
 favorable reception it deserves. GEO. B. YOUNG, 
 
 St. Paul, Minn. 
 
 I have received and examined with much fullness and interest the volume of 
 **Cases on Private International Law", by Dwyer. I am much pleased with the 
 selection of cases, and think the topics covered by the cases are those of most 
 interest and importance in connection with the subject of Private International 
 Law. I have taught Private International Law by means of lectures for several 
 years, and feel quite competent to ju Ige of the sagacity in the selection of the 
 cases, and of the admirable arrangement of them m their sequential order by 
 Mr. Dwyer in his volume of cases. I can most cordially commend the vo'umc, and 
 shall myself hereafter use it in the Iowa College of Law. C. C COLE, 
 
 Iowa College of Law. 
 
 DWYER. — Law and Proeedure of United States Courts. By John W. 
 Dwyer, LL. M., author of "Cases on Private International Law." 
 Instructor in the Law Department of the University of Michigan. 
 8vo. 361 pages. Bound in Buckram, $2.75, Sheep, ^3.50. 
 
 FARRAH-DWYER.— Cflj^j on the Law of Husband and Wife. By 
 Albert J. Farrah, Dean of the Law Department of the John B. 
 Stetson University, Deland, Florida, and John W. Dwyer, author of 
 Cases on Private International Law, and Instructor of Law in the 
 Department of Law of the University of Michigan. 8vo. 488 
 pages. Buckram, $2.50. 
 
 JOHNSON. — Elements of the Law of Negotiable Contracts. By E. F. 
 Johnson, B.S., LL.M., Professor of Law in the Department of Law 
 of the University of Michigan. 8vo., 735 pages. Full law sheep 
 binding. $3.75. 
 
 McCANDLESS. — Tabular Analysis of the Law of Real Property^ 
 following Blacks tone. Arranged by L. W. McCandless. ig charts. 
 Quarto. Cloth, $150. 
 
ROOD, — Common Remedial Processes. By J. R. Rood, University of 
 Michigan. 8vo. 360 pages. Buckram, $1.75. 
 
 Treating of the means by which judgments are enforced : and principal of attach- 
 ment, garnishment, execution and replevin; and incidentally of the judgments en- 
 forced, the nature, essentials, record and satisfaction of them. The author, John 
 R, Rood, has heretofore written a treatise on the Law ofi Garnishment, and is an 
 instructor in the law department of the University of Michigan. This work has 
 been prepared especially for students, and is the result of an attempt to prepare a 
 course of study on the general principles of the law of judgments and the means of 
 enforcing them. The author says that in view of the great practical importance of 
 this branch of the law, it is surprising that no previous attempts have been 
 made in this direction for the use of students. The book treats of leg slative 
 control of remedial processes ; on what judgments and in what actions the processes 
 are available; at what stage of the cause the processes are available, to whom and 
 against whom they are available; what courts may issue the processes; execution of 
 the processes, where, when, by whom and how it should be made, and what may be 
 taken under the process; character of the creditor's lien, or right under the pro- 
 cesses; the rule of priority or when the lien attaches, and how the lien may be lost. — 
 Central Law Journal. 
 
 ROOD, — Importaitt. English Statutes. Edited by John R. Rood, Uni- 
 versity of Michigan. 8vo. 24 pages. Imitation leather, 25 cents. 
 
 This pamphlet contains the Statute of Frauds (29 Car. II, c. 3) complete, also 
 Loid Campbell's Act, the Mandamus Act of 9 Anne, and the Victorian Wills Act. 
 The intention is to furnish students a copy of all those important English statutes 
 which have been generally re-enacted in the American statutes and are therefore 
 prominent in his courses of study. 
 
 ROOD. — Attachments, Garnishments^ Judgments, and Executions, by John 
 R. Rood. A text and cases. 733 pages. Bound in buck- 
 ram, ^3.00.