
    HOLLAND VS. ATZERODT.
    Where an attachment has been issued upon plaintiff’s affidavit alleging fraud in general terms, and the defendant by his affidavit denies the fraud charged, in the absence of any further testimony the attachment will be dissolved.
    A defendant who has made an assignment in trust for his creditors has sufficient interest in the property to apply for a dissolution of the attachment,
    Error to Common Pleas of York County.
    On the 22d of February, 1879, the plaintiff by his attorney filed with the Prothonotary of the Court below his praecipe for issuing a writ of attachment in debt against the defendant, under the provisions of the Act of Assembly approved March 17, 1869, returnable the first Monday of March, 1879 ; and at the same time filed the bond of the plaintiff in the sum of $3,000 conditioned according to said Act, and filed also at the same time an affidavit in the following words:
    “ Before me personally came J. C. Holland of the Borough of Hanover, and on his solemn affirmation saith that Atzerodt is justly indebted to him in a sum exceeding one hundred dollars, to wit: about in the sum of fifteen hundred dollars, as follows :
    “ On a promissory note for $1,000 with about $50 interest thereon ; as indorser for him said Atzerodt in Bank in the sum of $250 , for rent about $20, and as indorser on another note for about $90 to deponeut; and that the said Henry Atzerodt is about to remove his property out of-the jurisdiction of this Court with intent to defraud his creditors, and that he has money and evidences of debt which he fraudulently conceals, and that he has disposed of and removed his property and money with intent to defraud his creditors, to the best of deponent’s knowledge, information, and belief.”
    The writ was issued by the Prothonotary in the usual form, and the Sheriff made the following return:
    “ February 22, 1879, 6 o’clock P. M. Attached Henry Atzerodt, by his goods and chattels, moneys, stocks, rights in action, evidence of debt, and other property (see Inventory hereto annexed), by leaving a true and attested copy of the within writ: Also a copy of Inventory at the residence of the within named Henry Atzerodt, with an adult member of his family. Nihil habet as to the within named defendant. So answers
    JAMES PEELING, Sheriff.”
    
      On the 3d day of March, 1879, John W. Bittenger, Esq., filed a petition and affidavit on behalf of certain alleged creditors of the defendant, as follows:
    “ The petition of the undersigned creditors of Henry Atzerodt, the above-named defendant, respectfully represents that the above attachments, Nos. 52, 53, and 54, viz.: J. O. Holland v. Henry Atzerodt, Wm. J. Troup v. Henry Atzerodt, and Samuel Shirk & Son v. Henry Atzerodt, are in their opinion unfounded. That the said defendant has not, to the best of their knowledge and belief, at any time removed and disposed of his property and money for the purpose of defrauding his creditors, nor is he about to do so ; and that to the best of their knowledge and belief he has not any money or evidence of debt which he fraudulently conceals ; that the said defendant, they are informed and believe, is absent from the Commonwealth, seeking to avoid arrest on a charge of misdemeanor, and if said attachments are not dissolved they will operate to the prejudice and disadvantage of the general creditors of the defendant, including your petitioners.
    “ Wherefore they pray your Honors to dissolve said attachments, viz.: Nos. 52, 53, and 54, to April Term, A. D. 1879, and they will ever pray, &e.”
    On motion of John W. Bittenger, Esq., counsel for the defendant and wife, and for some creditors of the defendant, a rule was granted to show cause why the attachment should not be dissolved. To this rule the plaintiff filed the following answer:
    “And now to wit: March 1879, the said plaintiff, J. C. Holland, for himself, in -answer to the above petition and rule saith:
    “ 1. That the said petitioners have no legal right to the relief they seek, or to contest the rights of the said plaintiff secured to him by law in the issuing and service of his said attachment, and have no standing in Court for those purposes, inasmuch as the Act of Assembly under which proceedings began to wit: the Act approved, March 17,1869, gives to the defendant alone the privilege to appear in Court and apply to dissolve the attachment.
    2. The said plaintiff denies that the facts set forth in the said petition filed are true in manner and form as therein set forth and that they are stated with sufficient certainty and positiveness.
    3. And prays that the said rule may be discharged at the cost of the said petitioners.”
    After the filing of this answer, on April 1,1879, the defendant executed and delivered a deed of assignment of all his property in trust for creditors to W. C. W. Welsh, his assignee. On April 12, 1879, the following petition was filed on behalf the defendant:
    “On this 3rd day of April, A. D. 1879, personally came before me, the Prothonotary of the Court of Common Pleas of said county, Henry Atzerodt, the above named defendant who, saving all and all manner of exceptions to the affidavit filed by the plaintiff, on which the attachment on this case is based, and having been sworn according to law, doth depose and say, that said attachment was served at the residence of this deponent, where his wife and family were dwelling at the time, during his temporary absence from the State of Pennsylvania, and that he, this deponent, makes this affidavit for the purpose of applying to the Court of Common Pleas aforesaid, for the dissolution of said attachment as soon after his return as practicable ; that he, this deponent, is not and never has been about to remove his property out of the jurisdiction of this Court, with intent to defraud his creditors, and has and had at the time of the issuing of'said attachment, no money and other evidences of debt which he fraudulently concealed or now conceals, and that he had not then nor has he since disposed of and removed, or removed his property or money, or any part thereof, with intent to defraud his creditors, and that he is informed and verily believes that the said attachment is unauthorized in law and unfounded in fact, and therefore he prays the said Court, to dissolve said attachment.”
    A motion to dissolve the attachment was made on the part of the defendant, on April 12, 1879, and rule to show cause, &c., granted. To this rule the following answer was filled by the plaintiff:
    “And now to wit: April 30th, 1879, the plaintiff, J. C. Holland, comes into Court and for answer to the above rule, after being duly affirmed, saith that Henry Atzerodt, the above defendant, on the first day of April, 1879, at the County aforesaid, duly executed a deed of voluntary assignment of all his estate and effects, real and personal, to one William C. W. Welsh, of the borough of Hanover, in trust for creditor’s, and duly delivered said deed to the said assignee; that said assignee accepted said trust, and placed the said deed on record April 3rd, 1879, as appears of record in the Recorder’s office, of said county, and is now actually executing the said trust; that the said defendant is insolvent, and that his assigned estate is insufficient to pay his debts in full, and that he has by said deed of assignment, parted with all interest in the said assigned estate and effects which are the subject of the above attachment, and is no longer entitled to be heard respecting them and has no standing in Court for that purpose, and especially has no right to meddle as between his creditors, who have liens by law against his property, real or personal, so as to deprive any of them of the liens which by their vigilance they have gained, so as to benefit those of his creditors, who, by their supineness, failed to obtain liens; and said plaintiff denies that said defendant has any right to be heard for such purpose, or that he is entitled to the above rule, and the said plaintiff moves this Honorable Court to discharge the said rule ; and further denies that the facts set forth by said defendant are true in manner and form as the same are set forth.”
    The Court dissolved the attachment on -I une 16, 1879, in the following opinion per
    Wickes, J.:
    Admitting that the affidavits upon which the writs of attachments issued were sufficient to authorize the officer to do what the Act of 1869 requires him to do, they are certainly not sufficient to sustain the allegation of fraud on the hearing, by the Court, of a motion to dissolve.
    “In the first place the defendant’s answers deny in toto the allegations of a fraudulent disposition of his property, and as no specific facts are stated in the affidavits, and none established by evidence we cannot assume the fraud to exist. In the absence of certain facts admitted or proven, fraud is but the inference which the affiants have seen proper to draw — but it is essential to the continuance of these attachments that the Court should be satisfied as to the truth and sufficiency of the evidence of fraud.
    
      “The current of decision and practice under the Act of 1869, is overwhelmingly in favor of this course, and it is in accordance with the soundest and safest principles of law.
    “I think the defendant was the proper person to move the Court to dissolve the attachment, notwithstanding his assignment subsequent to {he issuing of the writs of attachment and prior to the motion to dissolve.
    “And now to wit: June 16th, 1879. Rule to show cause why attachment should not be dissolved made absolute.”
    Holland then took a writ of error complaining of the action of the Court below in dissolving the attachment.
    
      W. C. Chapman, Esq., for plaintiff in error argued that:
    After making the assignment, the defendant had no standing in Court, to move for the dissolution of the attachment; and still less, if possible, had other creditors, who had obtained no liens, a right to push him to the front and make him an instrument for their benefit to deprive the plaintiff of his lien.
    The plaintiff’s affidavit, being in the very words of the Act, was sufficient, even though no specific acts of fraud were set out therein: Sharpless vs. Ziegler, 8 W. N. C. 191.
    Persons having no interest in judicial proceedings will not be heard as parties to impugn them for irregularity merely: Lawrence’s Appeal, 17 P. F. Smith, 91.
    After the assignment of all his estate for creditors, the defendant stood in the position of a stranger to it, and had no right to interfere: Robertson vs. Reed, 11 Wright, 115; Torrens vs. Campbell, 24 P. F. Smith, 474.
    An assignee or trustee, who has no beneficial interest in the fund or trust, cannot appeal from a decree distributing it: Mellon’s Appeal, 8 Casey, 121; Fulton’s Estate, 1 P. F. Smith, 204.
    An assignee for the benefit of creditors is the mere representative of the assignor, enjoying his rights only: Morris’ Appeal, 7 Norris, 368.
    And he has no standing to interfere among creditors: Singmaster’s Appeal, 5 Norris, 169.
    
      From these authorities it follows that neither the assignor nor the assignee, after the assignment, had any right to come into Court and interfere between the creditors of the defendant.
    A writ of error lies in a case like this: Sharpless vs. Ziegler, supra.
    
    The judgment in this case is one by which the plaintiff finds himself aggrieved: Pontius vs. Nesbit, 4 Wright, 309; Karch vs. Com., 3 Barr, 273; Cassel vs. Duncan, 2 S. & R. 57; Benjamin vs. Armstrong et al., ibid. 392; Harger vs. Commissioners of Washington Co., 2 Jones, 251; Act of 1722, Purd. Dig. 702, pl. 1.
    
      Messrs. Cochran & Hay and John W. Bittenger, Esqs., contra, argued that:
    The motion made by the defendant in this case was not the same as the one made in Sharpless vs. Ziegler, supra. This was a motion made to dissolve the attachment; that, to quash the writ. The only final judgment in this case was that entered by the Prothonotary, at the request of the plaintiff, on July 14, 1879, nearly one month after the dissolution of the attachment, against the defendant and in favor of the plaintiff for $1,471.75, for want of an affidavit of defence.
    A writ of error lies only to a final judgment, except where it is given by statute: Hill vs. Irwin, 8 Casey, 314.
    The judgment in this case is not a final judgment, because it will not, if undisturbed, preclude further proceedings in the case: 1 Bright, Tr. & H. Prac., § 25, p. 471.
    The defendant has a right to apply to Court to dissolve the attachment: Act March 17, 1869, § 6, P. Laws 10, 1 Purd. Dig. 70, pl. 80.
    Such a motion was made by the defendant before the assignment. But, even if only made after the assignment, it would not prevent the defendant from making this motion.
    Where the assignee is a creditor himself, he has a right to interfere between other creditors, in that capacity: Singmaster’s Appeal. 5 Norris, 169.
    The assignee is merely the representative of the assignor. The creditors have the title of the assignee, and nothing more: Morris’ Appeal, 7 Norris, 368; Twelves vs. Williams, 3 Wharton, 485; Bullitt et al. vs. The Church, 2 Casey, 111; Fulton’s Estate, 1 P. F. Smith, 212; Missimer vs. Ebersole, 6 W. N. C. 200; Kent, Santee & Co.’s Appeal, 6 W. N. C. 263; Ritter vs. Brendlinger, 8 P. F. Smith, 68; Wright et. al. vs. Wigton et al., 5 W. N. C. 28.
    The Act makes no provision for resort to a higher Court, on a motion to dissolve the attachment. That a writ of error will not lie from an order to dissolve the attachment in this case, sufficiently appears from the rulings in the following cases: Miller et al. vs. Spreeher, 2 Yeates, 162; Brown vs. Ridgway, 10 Barr, 42; Lewis vs. Wallick, 3 S. & R. 410; Lindsley vs. Malone, 11 Harris, 24; Bain vs. Funk, 11 P. F. Smith, 185; Loomis vs. Lane, 5 Casey, 242.
   The Supreme Court affirmed the decision of the Court below on May 17, 1880, in the following opinion :

Per Curiam.

„ The general averments of fraud contained in the affidavit of the plaintiff, accompanied by the bond filed, were sufficient to authorize the writ of attachment to issue. The allegations of fraud were expressly denied in the affidavit of the defendant. On the hearing of the motion to dissolve the attachment the plaintiff gave no further evidence to sustain his allegations. As then no specific facts showing fraud were stated in his affidavit, and none were proved on the hearing, the learned judge was correct in holding the evidence was not sufficient to establish fraud.

Notwithstanding the assignment of the defendant, he had such a contingent interest in the property as to give him a standing in Court to move to dissolve the attachment.

Judgment affirmed.  