Fowler v. Dickson

• Decision Date: 08 December 1909
• Citation: 24 Del. 113,74 A. 601
• Court: Delaware Superior Court
• Parties: FOWLER v. DICKSON et al

74 A. 601

24 Del. 113

FOWLER v. DICKSON et al

Superior Court of Delaware, New Castle

December 8, 1909

Saulsbury, Ponder & Morris, for plaintiff.

Herbert H. Ward, Andrew C. Gray, and John F. Neary, for defendants.

Argued before PENNEWILL, C.J., and WOOLLEY and HASTINGS, JJ.

OPINION

WOOLLEY J.

On the 21st day of May, A.D. 1909, a writ of foreign attachment was sued out of this court, is the above-entitled case, and was executed by the sheriff in the manner shown by his return, as follows:

"Attached all of the shares of the capital stock in the German Union Fire Insurance Company of Baltimore, a corporation of the state of Delaware, held or owned by Robert Dickson, Robert D Tweeddale, and George N. Thompson, partners, trading under the firm name of Dickson & Tweeddale, * * * defendants, * * * by delivering on May 22, A.D. 1909, to Robert Penington, a director of the said the German Union Fire Insurance Company of Baltimore, personally, at the principal office or place of business in the state of Delaware of the said * * * company, a copy of the within process, duly certified by the prothonotary of said court, also by leaving the said duly certified copy of the within process at the principal office or place of business in the state of Delaware of the said * * * company * * * on the 22d day of May, A.D. 1909, being more than six days before the return of the within process, in the presence of the said Robert Penington, an adult person, who was and still is the agent in charge of the principal office or place of business in the state of Delaware of said * * * company - neither the president, cashier, or treasurer of said * * * company being in the state of Delaware, and the president of the said * * * company residing out of the state of Delaware - and received from said Robert Penington the certificate hereto attached and made a part of this return, showing the number of shares held or owned by said defendants in the said * * * company and garnishee fees paid. So answers Charles H. Lippincott, Sheriff."

The certificate of Robert Penington referred to in the sheriff's return, and made a part thereof, is as follows:

"The said Robert Penington doth hereby certify: That he is a director of the German Union Fire Insurance Company of Baltimore, a corporation of the state of Delaware; that the principal office or place of business in the state of Delaware of the said * * * company was, on the said 22d day of May, A.D. 1909, and still is, the office of the said Robert Penington, in the said city of Wilmington aforesaid; that the said Robert Penington was, on the said 22d day of May, A.D. 1909, and still is, the agent of the said * * * company, in charge of the principal office in said state of Delaware of the said * * * company; that the said Robert Penington is neither the president nor the cashier nor the treasurer of the said * * * company; that the said Robert Penington did not issue any stock of the said * * * company * * * to the said Robert Dickson, Robert D. Tweeddale, and George N. Thompson, partners, trading under the firm name of Dickson & Tweeddale, nor to any other stockholder thereof, nor did he take any part, directly or indirectly, in the issuance of any of the stock thereof; that the said Robert Penington has no knowledge whatever of the issuance of any of the stock of the German Union Fire Insurance Company nor the holders of the stock thereof on the 22d day of May, A.D. 1909, nor of the numbers and distinguishing marks of the stock certificates thereof, excepting such information as is given him by the duplicate stock ledger of the said * * * company, which duplicate stock ledger is kept in the said principal office of the said * * * company in the state of Delaware, in the charge of the said Robert Penington as the agent as aforesaid; * * * that the said duplicate stock ledger shows that on the 22d day of May, A.D. 1909, the number of shares held and owned by Robert Dickson, Robert D. Tweeddale, and George N. Thompson, partners, trading under the firm name of Dickson & Tweeddale, was two thousand, five hundred and twenty-five (2,525); that the number of the certificate or certificates representing the shares held by the said Robert Dickson, Robert D. Tweeddale, and George N. Thompson, partners, trading under the firm name of Dickson & Tweeddale, are as follows: 436, 437, 459, 484, 491, 506. In witness whereof," etc.

At the return term of the writ, counsel for the defendants, to whom leave had been granted to appear specially, moved that the services of the writ be set aside and the sheriff's return thereon be vacated. The principal ground upon which this motion is predicated is that, in the attempt to attach the defendants' stock in a corporation, it appears by the return that the writ was not executed in accordance with law, in that a certified copy of the process was not left by the sheriff with the president, casher, or treasurer of such corporation, pursuant to the provisions of chapter 70, p. 566, of the Revised Code 1852, amended to 1893, relating to the attachment of stock. The motion is resisted by the plaintiff upon the contentions: First, that the return shows that the writ was executed in accordance with law, in that the service was made pursuant to section 48 of the general corporation laws, providing the method of service of legal process upon corporations. Second, that the German Union Fire Insurance Company of Baltimore, having filed its certificate showing the number of shares of its stock held by the defendants, waived all technicalities in the service which concerned itself alone. Third, that section 16 of the general corporation laws makes shares of stock personal property, and as a result shares of stock may be attached under section 4 of chapter 104 of the Revised Code as any other personal property. Fourth, that the defendant may not be heard in this form of motion to object to the quality or method of service. Fifth, that chapter 90 of volume 14, Laws of Delaware (Rev. Code, p. 569), never applied to the attachment of shares of stock.

First. The first question presented by the motion is whether or not "the service was made (or the attachment laid) in compliance with law." In determining this question as presented, it devolves upon the court to decide whether the general provisions of the general corporation laws (22 Del. Laws 1901-02, p. 758, c. 394), relative to the service of legal process upon corporations, supersede and by implication repeal the particular provisions of the earlier law relating especially to the attachment of shares of stock in corporations, and to decide, in effect, whether stock of a Delaware corporation can, under existing law, be attached by foreign attachment, when the president, cashier, and treasurer of such corporation reside and remain out of the state of Delaware.

Prior to the enactment of the statutes relating to attachments and garnishments, there was no proceeding known to the laws of Delaware whereby the lands, chattels, debts, or shares of stock of a defendant, in an action, were subject to preliminary attachment for the ultimate satisfaction of the plaintiff's demand. In Delaware, as at the common law, a debtor's tangible property could alone be hald for the satisfiction of his debts, and such property could be reached only under execution and levy after judgment. The proceeding of foreign attachment had no existence at the common law. It was foreign to the laws of Delaware until established by statute in derogation of the common law. Smith v. Armour, 1 Pennewill, 361, 40 A. 720. It had its origin in the Custom of London (Reynolds v. Howell, 1 Marv. 59, 31 A. 875), the essential characteristic of which was the right of the plaintiff, at the initial stage of the case, to attach in the hands of a debtor of the defendant a debt due the defendant, and appropriate it to the satisfaction of the plaintiff's demand.

The first statute of the state of Delaware providing the process of foreign attachment was enacted prior to the Code of 1852, and it made the remedy by such process sufficiently broad to include, as well, the characteristic of the Custom of London, as all property of the defendant, both real and personal. It provided that "a wiit of foreign attachment may issue against any person, not an inhabitant of this state," when certain requirements are met, which "shall command the officer to attach the defendant by all his goods and chattels, rights and credits, lands and tenements, in whose hands or possession, soever, the same may be found in his bailiwick, so that he be and appear at the next superior court to answer the plaintiff's demand; and that he summon the defendant's garnishees to appear at the said court to declare what goods, chattels, rights, credits, money or effects of the defendants they have in their hands respectively." Rev. Code, c. 104, §§ 2, 19. After the enactment of this statute, it was decided by the superior court, at the fall sessions in 1856 (Vogle v. New Granada C. & S.N. Co., 1 Houst. 294), * * * that a corporation, though an artificial person, was not embraced within the meaning of the word "person" as used in the act, and as a consequence a foreign corporation could not be sued by process of foreign attachment under the statute. To meet the effect of this decision, the General Assembly of 1857 (11 Del. Laws, p. 482, c. 424) enacted chapter 182, p. 306, 15 Del. Laws, providing that: "A writ of foreign attachment may be issued * * * against any corporation, aggregate or sole, not created by or existing under the laws of this state. * * *" Rev. Code, p. 786, c. 104.

From the dates upon which these statutes were respectively enacted, authorizing the institution of actions by foreign attachment against both natural and...