Anderson v. Young's Executors

• Decision Date: 06 September 1853
• Citation: 21 Pa. 443
• Parties: Anderson <I>versus</I> Young's Executors.
• Court: Pennsylvania Supreme Court

Page 443

21 Pa. 443

AndersonversusYoung's Executors.

Supreme Court of Pennsylvania.

September 6, 1853.

ERROR to the Common Pleas of Bedford county.

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King, for plaintiff in error.—He contended that Mealy was a competent witness — that he was not interested.He was the last endorsee by transfer made after the maturity of the note.He was no party to the suit, and it was contended that the note had been paid: Bank v. Forster, 8 Watts 304; 5 Barr 52-3, Gilpin v. Howell; Story on Pro. Notes 372; 9 Barr 507.

The deposition of Price was not admissible.It was said that it was admitted on the ground of a privity between Cline and Anderson; but it was contended that their interests were hostile: 2 Barr 310.Cline's declarations were not admissible.He had an interest in swelling the fund in the hands of Anderson the garnishee.

It was said that the note and the assignment were both made in Maryland, and though the assignment was made on Sunday, it was not within the Act of 1794.A bond executed on Sunday is not void at common law: 3 W. &Ser. 444.

Russell, contrà.—It was contended that, primâ facie, Mealy was interested, and that he was therefore incompetent to show that he had no interest in the note: 1 Rawle 196, Griffith v. Reford; 10 Barr 167, Thomas v. Brady.If the note were paid by a new note or otherwise, there was no evidence when it was paid or arranged.

The deposition of Price was admissible to prove the declarations of Cline made after the attachment and whilst Cline had the note attached in his possession — the note being then overdue.The testimony was material as tending to show that there was then no assignment on the note — instead of its being made on the 22d January, 1843, the day before the issuing of the attachment, that it was not on it about six months afterwards.It was said that the declarations of Cline were evidence against a fraudulent assignee: Greenleaf on Ev. 190-1;13 Ser. & R. 107; 2 Starkie 261, 326; 5 Harris 345.

The opinion of the Court, filed September 6, was delivered by LEWIS, J.

On the 23d January, 1843, a foreign attachment was issued by Young's executors against David Cline, which was executed on the 30th January, 1843, by attaching the amount of a promissory note due by Espy L. Anderson to Alfred Cline, in the hands of Anderson as garnishee.On the 7th February, 1847, judgment was obtained against Cline, the defendant in the attachment.A scire facias thereupon issued against Anderson the garnishee, who pleaded nulla bona, on which issue was joined.On the trial of this issue it appeared in evidence that on 1st January, 1842, Anderson gave a promissory note for $1500, payable to Alfred Cline, or order, six months after date.On 22d January, 1843, Alfred Cline assigned the note to F. D. Foulke.On the 12th October, 1843, F. D. Foulke assigned it to E. M. Mealy.These assignments were endorsed on the note and purported to be for value received.The note, at the time of the trial, was in the possession of Anderson.

The deposition of E. M. Mealy was offered by the garnishee, to prove that the assignment from Cline to Foulke was made before the issuing of the attachment, and was for a valuable consideration, and to prove further, that the assignment to the witness was made solely to enable him to collect the note.The deposition was rejected, and this is the first error assigned.

The party objecting to a witness may examine him on his voir dire, or resort to other evidence to establish the objection; but after electing one of these courses he cannot resort to the other.Nor can the witness himself be received at the instance of the party offering him, to repel the objections on the ground of interest established by other evidence.As the evidence stood when the deposition of E. M. Mealy was offered, he appeared to be the equitable assignee of the note in controversy.As the possession of it by Anderson is relied upon as primâ facie evidence of its payment, it is proper to examine the case in that aspect.The competency of the witness may be decided upon by considering the effect which the verdict may have upon his interest.

A foreign attachment is not altogether a proceeding in personam.It is in the nature of a proceeding in rem, to which, for the purposes of the particular action, all the world are parties.In a writ of foreign attachment, personal notice to the defendant is not required.On the contrary, the action proceeds on the ground that actual notice cannot be given.By the custom of London, from which our proceedings are derived, the garnishee was not warned until the sergeant-at-mace made return to the process awarded against the defendant, that hehad nothing in the city or the liberties thereof, whereby he could be summoned, nor was to be found within the same.After this return, and four defaults entered, judgment was rendered against him; under which the money, or effects of the defendant, in the hands of the garnishee, might be levied in satisfaction of the judgment.The domicil of the debtor was immaterial.But in Pennsylvania, the Act of 13th June, 1836, has made a change in this particular.A foreign attachment will not lie here, if the debtor resides within the Commonwealth, or is within the county at the time of the issuing of the writ.It is precisely because actual notice cannot be given, that the law has provided this method for the collection of debts against non-resident debtors without it, and has prescribed what shall be deemed constructive notice.If the plaintiff, who is to be benefited by the proceeding, be not required to give actual notice to the defendant, on account of the impossibility or difficulty attending it, the reason against imposing that burden upon the garnishee is much stronger, for he has no interest whatever to be promoted by the proceedings.If the judgment be valid for the purpose of compelling payment of the debt to the plaintiff, it must be equally effective for the garnishee's protection against a repetition of the demand.We must administer the law as a system intended to promote justice, and not as a snare to entrap the innocent.It may seem hard that the defendant in the attachment shall lose his demand against the...