Harrison v. Pender

• Decision Date: 31 December 1852
• Citation: 44 N.C. 78,57 Am.Dec. 573
• Court: North Carolina Supreme Court
• Parties: HARRISON & RESPASS et al. v. THOMAS E. PENDER.

44 N.C. 78

57 Am.Dec. 573

HARRISON & RESPASS et al.

v.THOMAS E. PENDER.

Supreme Court of North Carolina.

December Term, 1852.

A judgment in attachment, like judgments at common law, cannot be collaterally impeached by evidence that the plaintiff's cause of action had not accrued at the time his attachment issued.

Hence, where A. sued out an attachment against B., on a claim for money paid to his use as his surety--upon a rule against A. by other judgment creditors (in attachment) of B., to show cause why the monies raised by the sheriff's sale should not be exclusively applied to the satisfaction of their debts:-- Held, that evidence of the fact that the alleged payment by A. as B.'s surety, had not reached the hands of the creditor, at the time the attachment issued, was inadmissible.

(The case of Skinner v. Moore, 2 Dev. & Bat. 138, cited and approved.)

APPEAL from the judgment of his Honor Judge MANLY, made at Fall Term, 1852, of Washington Superior Court of law, in the following case.

The defendant issued an attachment against William L. Rhodes, as an absconding debtor, on the 7th of November, 1851. On the 8th of the same month the plaintiffs also issued attachments against the said Rhodes for debts due them; all of which attachments were returnable to November Term, 1851, of Washington County Court; and at May Term following, judgments were obtained, upon which executions issued, and the property attached was sold, and at August Term, the sheriff brought the money, the proceeds of the sales, into Court, and asked the advice and direction of the Court, to make an application thereof. Returnable to August Term, the plaintiffs served a rule on the defendant to show cause why the money raised should not be applied to theirs instead of his execution. The rule was discharged in the County Court, and an appeal taken by plaintiffs to the Superior Court, when, at Fall Term, 1852, the plaintiffs offered to prove, in support of their rule, that the defendant was bound with Charles Latham, as surety of said Rhodes, on a note payable at the Bank of Cape Fear at Washington for $500; that on the morning of the day his attachment issued, he enclosed the amount of said note to the Cashier of the Bank, and deposited the letter containing the money in the Post Office at Plymouth; that the mail did not leave Plymouth until the following day; and that the defendant's attachment issued, and was levied on the property whilst the money was lying in...