
    David S. M'Bride v. Shadrack Floyd.
    The writ of attachment creates a lien on all choses in action of the absent debtor, in the hands, power, or possession, of the garnishee, which is not discharged or affected by any intervening incumbrance or alienation.
    Where a promissory note was attached in the hands of an attorney, with whom it had been lodged for collection, and who proceeded to recover judgment upon it; and the money was subsequently collected by the sheriff under execution in the name of the absent debtor: Held, that the attaching creditor w'as intitled to it, in preference to a senior execution remaining unsatisfied in the sheriff’s office.
    . An agreement between the payee and Siaker of a protqissory note, that the latter should apply the amount due upon it in satisfaction of a judgment remaining open against the payee, and that such application should be a payment of the note, cannot be set up in a question between the judgment creditor, and another creditor of the payee, who has attached the note before such payment.
    One who is neither a party nor privy to a contract, who is a stranger to the consideration, and is not bound by the contract itself, is not intitled to claim any benefit under it.
    In an inquiry under a rule to shew cause, the affidavit of a person directly interested in the event, is incompetent evidence of a fact involved in it.
    Third persons cannot take advantage of an irregularity in the proceedings of the plaintiff in attachment, after the lien of the writ has attached.
    If the declaration in attachment is filed within a year and a day after the return of the writ, the lien of the attachment is preserved, provided satisfactory cause can be shewn for not filing within two months of the return, as required by the act: and it seems, that cause may be shewn as well after, as before the filing of the declaration.
    Tried before Mr. Justice Richardson, at Coosawhatchie, Fall Term, 1830.
    This was a rule upon the sheriff, to shew cause, why he should not pay over in satisfaction of plaintiff’s fi. fa. certain moneys, which he had made under execution against one James T. Robinson, at the suit of the defendant. At the return of the rule the sheriff shewed for cause, that the same moneys were claimed by William B. Buckner, as subject to the lien of a writ of foreign attachment, which he had sued out against the goods, debts, &.c. of Floyd, who had absconded, and was without the limits of the State.
    Buckner’s attachment was lodged 9th October, 1829, and on the same day a copy of it was served on W. F. Colcoek, Esq. in whose hands a promissory note, made by Robinson, and now a dm it ted to be the property of Floyd, had been placed for eollection and suit. The note remained in the hands of the garnishee, Mr. Colcock, who as attorney of Floyd obtained judgnlen(; on j(. af; Spring Term, 1830, and lodged execution upon it immediately afterwards. On the 30th August, 1830, Robinson paid the debt to the sheriff under the execution; and this was the money now in question.
    Buckner’s attachment was returnable to November Term, 1829 ; his declaration was filed in November, 1830, being the last day of the year after the?' return. Cause was shewn for the delay; and his Honor held the cause shewn to be sufficient, and that it might be shewn as well after, as before the filing of the declaration. An order was entered accordingly.
    M’Bride’s fi. fa. was lodged in December, 1822 ; and in addition to that lien, he relied, in support of the rule, upon an agreement said to have been made between Robinson and Floyd, that the money due on Robinson’s note should be paid to M‘Bride’s execution. It appeared, that the note had been given in payment, or in part payment, of a tract of land, which Robinson had purchased from Floyd in 1827, at which time the agreement is alleged to have been made. The only evidence of .this agreement was the following affidavit of Robinson.
    “ James T. Robinson swears before me, that when he made the contract with Shadrack Floyd, for the land, on which he paid the money to the sheriff, which is now in dispute between W. B. Buckner and D. S. M‘Bride, it was agreed between them, and formed part of their contract, that he was to pay one hundred and twenty-five dollars on the judgment of the said D. S. M‘Bride. And that when he paid it into the sheriff’s office, he supposed this was a performance of his agreement, as well as a discharge of the judgment against him to that amount.
    James T. Robinson.
    Sworn to before me, this 17th
    November, 1830.
    H. Archer, Clerk, C. P.”
    His Honor held, that the service of the attachment on Floyd’s attorney, gave Buckner no lien on the money collected by the sheriff: at least none in derogation of the contract between Robinson and Floyd, as evidenced by the affidavit of Robinson; and that M'Bride was consequently intitled to the money. Rule absolute.
    The sheriff, on behalf of Buckner, gave notice of appeal; and now moved to reverse the decision of his Honor, on the following grounds :
    1. That the money, paid over to the sheriff on the note, had been well attached by service of the attachment on the attorney of the absent debtor, in whose hands the note had been placed for collection ; that the subsequent recovery of judgment, and collection of the money through the sheriff did not discharge the lien of the attachment; and that therefore the money ought to be paid over to Buckner, upon his giving the security required by the attachment act.
    2. That the plaintiff, M‘Bride, either had no lien on the said money, or one which was junior to Buckner’s, to which it ought therefore to be postponed.
    3. That in other respects the cause shewn was sufficient, and therefore the rule ought to have been discharged.
    Bailey, for the motion.
    H. A. Desaussure, contra.
    
   O’Neall J.

delivered the opinion of the Court.

To make the rule absolute it was contended. First, that the contract, as proved by Robinson, between himself and Floyd, made the money in the hands of the sheriff liable to the plaintiff’s execution. Secondly, that the attachment served on Mr. Colcock, created no lien on the money in the hands of the sheriff. Thirdly, that the proceedings in attachment were out of Court, from their irregularity. The presiding Judge below made the rule absolute on the first ground; but as all the grounds have been presented again to this Court, to sustain his decision, it is necessary that they should be considered.

First. The contract between Robinson and Floyd, was one entirely between themselves. The plaintiff had neither an express or implied privity to it: for there was no consideration moving from him to Robinson, on which a promise to him, or in his favour, could be raised. To constitute a contract, it is necessary that both parties should assent, so as to be bound by it. The plaintiff in the execution was under no obligation whatever, to accept the contract between Robinson and Floyd, in satisfaction ©f his judgment. If Robinson chose not to perform the contracts Floyd could alone have sued for the breach. It may well be doubted, whether the contract was not one contrary to the terms and legal effect of the note, and which could not, therefore, be allowed to vary it. But if it was competent to be shewn at all, it could only, when performed, be a competent defence against the note. Failing to perform it, Robinson became liable on the note, and according to its terms, this liability belonged exclusively to the payee. It is true, that the land bought by Robinson, may be liable to satisfy the judgment, and that the effect of this may be to subject him to the payment of it in addition to the purchase money, which he contracted to pay. But this, if available in any shape in a Court of law, could only have been set up as a defence against the recovery of the note. It cannot be interposed between an attaching and an execution creditor, under a rule, as a ground upon which the Court is to be authorized to give a different direction to money in the hands of the sheriff, from what it would otherwise legally receive.

The contract, however, was not even legally proved. Robinson was directly and immediately interested in the event of the issue made under the rule. It was indeed more a proceeding for his protection, tkan for the benefit of the plaintiff. If the rule was made absolute, his land was thereby discharged from the lien of the judgment. If it was not, it remained liable to be sold in satisfaction of it. This was a certain and direct interest in the event, and rendered him an incompetent witness.

Secondly. The first section of the attachment act, P. L. 187, directs that writs of attachment shall be directed “ to the provost marshal of the province aforesaid, requiring and commanding him immediately to attach the monies, goods, chattels, debts, and books of accompt, belonging to the absent debtor, in the hands of any person or persons whatsoever; and the attaching of any part thereof, in the name of the whole, that is in such person’s hands, poioer, or possession, shall secure and malee the whole liable in law, to answer any judgment that shall hereafter he recovered and awarded upon that process.” And the same section requires, that the person in possession shall be served with a copy of the writ of attachment, requiring him at the return thereof, to make return on oath, what monies, goods, chattels, or books of accompt, are in his hands, power or possession, belonging to the absent debtor; and- if he fails to do so he is declared liable to judgment and execution for the debt. The third section directs that on the plaintiffs filing his declaration, the monies, goods, chattels, debts, and books of accompt, attached, shall be paid and delivered to him, on his entering into a recognizance in double the value thereof. The fourth section authorizes the plaintiff in attachment to sue for, and recover, the bonds, notes, or books of accompt, delivered as aforesaid, and to give sufficient acquittances and receipts, in discharge of the same.

In the construction of this act it has been decided, that the sheriff in executing the writ of attachment, has no right to dispossess the person in possession, but must serve him with a copy of the writ. Schepler v. Garriscan and Carpioin, 2 Bay, 224. The effect of service so made, is a levy in law, on the whole of the moneys, goods, chattels, debts, and books of account, belonging to the absent debtor in the hands, power, or possession of the person so served. This creates a lien from the day of the service, and they become liable in law to answer any judgment which may be afterwards recovered on the attachment. Stephen v. Thayer, 2 Bay, 272. Ohors v. Hill, 3 M’C. 338. The lien, thus created, cannot be altered, or destroyed, by the collection of the money due on any of the choses in action attached. The act contemplates the collection of them in the name of the absent debtor for the use of the attaching creditor. The effect of the attachment is to set apart the choses in action, or property attached, for the satisfaction of the judgment afterwards to be recovered; and the collection of the money, due on the choses in action, must follow the direction which the law has assigned to them. It belongs, of course, to the owner of the debt, in discharge of which it is paid. The act may be regarded as constituting the levy a legal assignment of the absent debtor’s choses in action to the plaintiff in attachment. This assignment may be effected in one of two ways: first, under the third section by an actual delivery of them to the plaintiff; or, secondly, where the party in possession is intitled to retain the chose for some qualified purpose, such as for collection by an attorney, by ordering the amount, when collected, to be paid over to the judgment, to be recovered in attachment. Each of these necessarily look back to the levy, as the commencement of the plaintiff’s right. And no intervening incumbrance or alienation can prevent his right to claim them as liable in law to answer the judgment. The attorney of the,absent debtor had the right to retain the note, and to proceed to obtain judgment on it; and bn his return being made, the Court could condemn the debt as the property of the absent debtor, and direct the money collected under the fi. fa. to be paid to the attaching creditor, on the execution of a recognizance according to the act.

Thirdly. It has been often decided, that neither the garnishee, •a creditor of the absent debtor, nor any person other than the debtor himself, can question the regularity of the proceedings in attachment. Kincaid v. Neal. 3 M’C. 201. Camberford v. Hall, Ib. 345. But if the plaintiff here could make the objection, the irregularity complained of could not avail him any thing. The only irregularity pointed out, is, that the declaration was not filed within two months, although it was filed in less than a year and a day from the return of the writ. The Court has the power at any time, within a year and a day from the return of the writ in attachment, to permit the declaration to be filed. Stephen v. Thayer, 2 Bay, 272. Kennedy v. Smith, Ib. 414. This power may be exercised as well after, as before the expiration of the two months from the return of the writ, allowed by the attachment act for the filing of the declaration. On none of the grounds taken was the plaintiff in execution intitled to have the rule made absolute; and the motion to reverse the decision of the Circuit Judge is therefore granted.  