Childs & Co. v. Digby

• Decision Date: 01 October 1854
• Citation: 24 Pa. 23
• Parties: Childs & Co. versus Digby.
• Court: Pennsylvania Supreme Court

24 Pa. 23

Childs & Co. versus Digby.

Supreme Court of Pennsylvania.

ERROR to the District Court of Allegheny county.

COPYRIGHT MATERIAL OMITTED

Shaler and Co., for the plaintiff in error.—Digby's right to take possession of such of the goods as he had sold to Scandrett was secured to him by the article of agreement, and is not called in question. But it is contended on part of plaintiffs, that Digby is chargeable with that portion of the goods which was received by him under the mortgage or bill of sale by McKee, the superintendent of the store. A clerk or agent has no authority to sell by wholesale the goods in the store in payment of a debt: 2 Harris 105, Hampton v. Matthews; 18 Johnson 362. The alleged ratification by Scandrett in April, 1852, about five months after the issuing and service of the attachment of the plaintiffs, cannot affect any interest acquired by them under the attachment proceeding. Under the Act of Assembly, the garnishee is required to show cause why the plaintiff should not have execution of the effects of the defendant "in his hands or possession." This does not mean an actual manual possession, but also the legal or potential custody — coextensive with the power the garnishee has over them — the jurisdiction of the Court being governed by the condition which the property occupies in relation to the parties to be affected. If the goods are susceptible of seizure, the sheriff shall seize them: if not susceptible of seizure or manual occupation, the sheriff is to give notice to the party having the custody or control of the goods, that he attaches them.

Loomis, contrà.—Jurisdiction to be rightfully exercised must be founded either upon the person or thing being within the territory: Story's Conflict of Laws, § 539. The potential charge or control of the goods in question by Digby, while living in Pittsburgh, by his agent in Ohio, was not such a possession as rendered them liable to be attached in Pennsylvania. If Digby had property in the goods by virtue of the bill of sale, this would draw after it the possession; but if he had such title, the goods were not liable to attachment as the property of Scandrett. Where there has been a wrongful taking of chattels, the property in them is not changed before judgment, but remains in the rightful owner: 2 Kent 337-8, and notes. Possession is either actual, or that which arises constructively from title. If Scandrett were the owner, his property in them could not be reached by service upon Digby, who had not even the evidence of property in Scandrett.

The proceeding by foreign attachment is one in rem, and to enable a Court to pronounce a judgment respecting it, it must be within its territory or control: 1 Harris 223, Christmas v. Biddle. If, after the plaintiffs had attached the goods, they had been attached in Ohio at the suit of another creditor of Scandrett, would not the latter proceeding be effectual? If Scandrett had not ratified the sale of the goods, he might have maintained replevin. The plaintiffs were not without remedy, as they might have attached the goods in Ohio.

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

The observation of Mr. Justice COULTER in Christmas v. Biddle, 1 Harris 223, that "the attachment process is a proceeding in rem, and the matter and thing attached must be in the...