Fulweiler v. Hughes
| Decision Date | 01 March 1852 |
| Citation | 17 Pa. 440 |
| Parties | Fulweiler <I>versus</I> Hughes. |
| Court | Pennsylvania Supreme Court |
Cadwalader and Dunlap, for defendant in error.—The check in question was received by Ray in payment for his tools and stock and the good-will of his business from Slater, who purchased them from him. Slater was known to Ray and others in Philadelphia, as the nephew of Mr. Jackson, who lived at a distance of about 150 miles. They believed Mr. Jackson to be a rich man, who intended to set up this nephew in business in Philadelphia. Jackson, on 10th September, 1846, was the owner of the check and handed it with the endorsement of his firm of E. Jackson & Co. to his nephew, who transferred it on the following day to Ray for the above consideration. This consideration was executed by Ray, by delivery of possession of the subjects of the sale, and the removal of his own business from Philadelphia to Norristown. There was no evidence to impeach the title thus vested in Ray on the 11th of September, 1846. E. Jackson & Co. were then in embarrassed circumstances; but this was not known to the parties in Philadelphia.
On the 15th of September, 1846, four days after Ray's title was thus acquired, the plaintiffs below, who are plaintiffs in error, under a judgment at their suit against E. Jackson & Co., laid an attachment execution in the hands of the drawers of the check.
The question below was, whether the debt was liable to this attachment. The defendant in error submits: —
1. That though the check had not been parted with by Jackson, the debt was not attachable, as it was not payable until ten days after the service of the attachment: 2 Miles 330; Id. 352; Id. 412.
2. That Jackson was not the owner of the check at the date of the attachment.
There was no proof that the nephew, or any one of the transferees, knew of the insolvency of Jackson. The investigation they made, tended to confirm the title of Slater. It showed that Jackson had received the paper lawfully from Orrick & Campbell.
There was no evidence to contradict the proof given by Hughes of a consideration as between Slater and Ray, or as between Ray and Hughes. The attachment could not be supported if either transfer was for a consideration. Under the evidence it was the duty of the jury to find for the defendant.
The opinion of the court was delivered March 1, by LOWRIE, J.
As the debt of Orrick & Campbell to Hughes lacked ten days of being due when the attachment execution was served, Hughes raises the question that it is not affected by the service. If this is true, then the other questions are of no importance.
It is unquestionably true, and for obvious reasons, not applicable here, that wages earned after the service of an attachment execution, are not affected by the writ. It is easy to see how a contrary doctrine might be used to persecute a debtor, and drive him out of all employment. Moreover, wages not earned can with no propriety be called a debt.
It is said that the "debts due" which are liable to the writ must be such as are payable then, and not in future. But this is a narrow construction of a liberal remedy. It is useless to cite instances to show that the word "due" is continually used by judges, legislators, and lexicographers, as synonymous with "owing." In the law regulating the remedy, we have the expression "belonging or due" applied to debts attachable.
The construction contended for is not required by the form of the procedure; for it is not applied in cases of foreign attachment, and the law regulating attachment executions refers us to the foreign attachment law, for an analogy as to the form of procedure. It is not required for the benefit of the garnishee debtor, who is thus made liable to suit before he is in default, for he is not chargeable with costs without default, and there is no difficulty in moulding...
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