
    
      CARROL vs. M'DONOGH.
    
    In cases of attachment, a prior judgment does not destroy the lien of an anterior seizure.
    Appeal from the court of the first district.
    Maybin, for the plaintiff.
    An attachment was instituted and executed on funds in the hands of John Rogers, the appellant. To the interrogatories proposed him by the plaintiff; he answers, that he has in his possession monies of the defendant, to the amount of $ 334 82 cents; but that an illegal attachment had been taken out in the state of Pennsylvania, against his own property, in a suit of some person against M‘Donogh, and that he intends retaining possession of the funds to indemnify himself for any damage which he may sustain. The district court rendered judgment in favour of the plaintiff, against the defendant, and ordered Rogers to pay over the amount of the monies admitted to be in his hands; which order, not having been obeyed, execution has been issued against the garnishee. From the decree of the in-inferior court, an appeal has been taken by Rogers, the defendant having acquiesced in the judgment.
    East’n District.
    
      Jan. 1822.
    
    The ground relied upon is, that the garnishee has a right to retain the funds in his hands, till the suit in Pennsylvania is dismissed, to indemnify himself against its result. His answers expressly admit, that the attachment is illegal. But waving that point for the present; admit it to be legal; and still it is not sufficient to prevent him from paying over the money in his possession. The court which rendered the decree against Rogers, was one of competent jurisdiction; and a compliance with its judgment will always afford him protection, and be a valid plea in bar in any other suit. The payment of the money would not be voluntary, a circumstance which might elsewhere perhaps raise a presumption of collusion; but made in execution of an order expressly rendered against him. If the court had undoubted jurisdiction of the case, and gave a decree on the whole merits of it, the garnishee is bound to obey it; and that obedience will always prevent him from sustaining any injury. Le Chevalier, assignee of Dormer vs. Lynch &. al. Douglass 169. Sergeant on Foreign Attachment, 183, 184. 3 Term. Rep. 125, Allen vs. Dundas. The language employed by Mr. Justice Ashurst, is particularly applicable to the case before the court; “ every person is bound by the judicial acts of a court having competent authority; and during the existence of such judicial act, the law will protect every person obeying it.” It was distinctly admitted in argument, by counsel in the case of Hunter vs. Potts, 4 Term. Rep. 187: “That nothing could be more clear, than that a person who had been compelled by a competent jurisdiction, to pay the debt once should not be compelled to pay it over again.” This point I consider so clear that it would be a waste of time to adduce any additional authorities.
    It is not a sufficient plea that an attachment had been instituted against the garnishee in Pennsylvania. No evidence has been presented to the court, to shew that the suit is still pending; it may, long ere this, have been discontinued, or dissolved by the court; or judgment rendered in favour of the defendant; which would, consequently, exonerate the present garnishee from all responsibility. He should have gone further than pleading the existence of an attachment; he should have plead and proved, that a judgment had been rendered against him, and an execution issued. Dyer, 83, a. Rotherton vs. Norroy. 1 Comyn's Digest, 427, (Dublin edt. of 1785.) But the garnishee admits, that the attachment in Pennsylvania is illegal. If so, what plea can he now set up against obeying the decree of the inferior court? An illegal suit cannot affect or injure him. As regards him, it is the same as if no suit was in existence at all. The answer of Rogers is to be considered as true unless disproved-this has not been done in the present instance. This court will, therefore, look upon the suit in Pennsylvania as entirely illegal; for the garnishee himself says so. How then can an attachment, which is here shewn to be against law, and of course, altogether inoperative, be a valid plea in bar against the recovery by the plaintiff in this present suit? The garnishee has, by his own answers, shewn enough to authorise this court to confirm at once the judgment of the court a quo.
    
    In the statement of points and authorities submitted by the counsel for the appellant, to this court, two provisions of our Code are relied upon in support of the ground taken by him. Civ. Code, 414, art. 28. Ib. 288, art. 142. The former of these articles relates to the obligations imposed upon him, by whom a deposit has been made, and gives the depository a right to retain the deposit, until repaid his advances, and indemnified for his costs and losses by the owner. In what manner this part of our law is applicable to the case before the court, I am yet to be informed. The garnishee must shew in what way the circumstance of his being indebted to the defendant, is to be considered a deposit; and then, that he has sustained the losses and incurred the expenses alluded to by our Code, to authorise him to retain the money, in preference to a bona fide attaching creditor. Nothing of this has as yet been done, and I apprehend it cannot very easily be done.
    The other article of the Code invoked, has as little bearing on this case. That article declares, that “payment made by a debtor to his creditor, to the prejudice of a seizure or an attachment, is not valid with regard to the creditors seizing or attaching; these may, according to their claims, compel him to pay anew,” &c. This provision evidently contemplates a case different from that under consideration. It contemplates a payment to be made voluntarily by the debtor, after an attachment, and after his knowledge of the existence of such an attachment or seizure; but surely it cannot mean a payment made under a decree of a court of competent jurisdiction. Pothier, Traité des obligations, n. 469, has a similar provision; and his meaning, as gathered from the article itself, and the context, is that which I have given to the article in the Code. The debtor must know of the laying of the attachment, and must voluntarily pay it under that knowledge; and this being in fraud, and, to the prejudice of the attaching creditor, the law very correctly says, that he shall be compelled to pay it a second time. Our Code goes also oh the supposition, that the attachment, to whose prejudice the payment is made, is a legal one. Now, in our case it is illegal, as declared on oath by the garnishee; consequently, it never could be prejudiced, even admitting that the article invoked is applicable.
    Preston, for the garnishee.
    Rogers shews by his answers that an attachment had issued against him in the state of Pennsylvania, on account of the funds now attached, and that he would hold the same to indemnify himself against it.
    Our Civil Code declares, that “ payment made by a debtor to his creditor, to the prejudice of a seizure, or attachment, is not valid with regard to the creditors seizing or attaching. These may, according to their claims, oblige him to pay anew.” The counsel for the plaintiff contends that this article of our Code applies to a voluntary payment, not one compelled by a court of justice. But this is evading the controversy between us. The question is, whether the court ought to compel the payment or not? I contend that the court ought not. The payment, if made voluntarily, would not be valid. The reason is, because the debtor ought not to pay, and thereby do injustice to an attaching creditor who had acquired rights in the debt or thing attached. But if the debtor ought not to pay voluntarily, the court ought not to compel him to pay. Neither ought the court to do injustice. But if they compel the garnishee to pay the present attaching creditor, they must do injustice either to the garnishee, or the first attaching creditor: to the first attaching creditors, if they deprive him of his debt, by compelling the garnishee to pay the present plaintiff; or to the garnishee, if by compelling him to pay the present plaintiff, they subject him to pay the same debt twice. The law of attachment makes it the duty of the garnishee to defend himself against the attaching creditor, and to protect the rights of the defendant, and of course the rights of a previous attaching creditor. It is not sufficient to exempt him from their rights, that he has been compelled by a court of justice to pay the attaching creditor; he must have been compelled to pay, after having defended himself according to law. To make such a defence is the object of the present garnishee.
    If the garnishee be compelled to pay the present plaintiff, it will not exempt him from the effect of such payment prescribed by our Civil Code. “He may be obliged to pay anew.” His answer shews that judicial proceedings were pending against him in Pennsylvania, on account of the funds now attached. His answer, by our statute, is made evidence of the existence of those judicial proceedings, and supplies the record itself. His answer that he was indebted by judgment, would bind him, and he would not be exempted from payment because the record was not produced. On the other hand, if he discharges himself by judgment, or other judicial proceeding, it is sufficient, and it is not necessary to produce the record. The answer of the garnishee is sufficient proof that the funds now attached had been previously attached in the state of Pennsylvania. Now the constitution of the United States prescribes, that “full faith and credit shall be given in each state, to the judicial proceedings of every other state. Art. 4, sec. 1. The attachment in Pennsylvania therefore, is entitled to the same credit as if it had been commenced in our district court. If the attachments had been commenced here, the first attaching creditor would have had a preference on the thing attached. 8 Martin’s Rep. 511. The judicial proceeding in Pennsylvania, therefore, gave the attaching creditor, there, a preference over the attaching creditor here. The court cannot deprive him of that preference without violating the article of our constitution just quoted: If this court should deprive him of that preference, the court in Pennsylvania would regard the act as manifestly unconstitutional; and would not only in fact, but rightfully compel the garnishee to pay anew. They would tell him it was his misfortune to have been in Louisiana, where the constitution of the United States was disregarded; but that they could not do injustice to their citizens on account of his misfortunes.
    The fact, that judgment has been first obtained in our state, does not affect the rights of the parties. It is not the judgment but the attachment which gives the lien. If two creditors should attach the same thing in our district court, and the first, on account of the difficulty in obtaining his proof, should be the last to obtain judgment, would he be postponed to the other? If so, the vigilant creditor who hunted out the concealed property of an absconding debtor, would subject himself to costs, to see another enjoy the benefit of his industry. The maxim of justice vigilantibus non dormientibus servit lex, would be reversed.
    
      The principle for which I contend, has often been decided. A garnishee may plead the pendency of the attachment in bar to or abatement of a suit, commenced against him by the defendant in the attachment. Serg. l. of att. 145, 146, 147, and the cases there cited; and 169, 170. The defendant then has no right to the thing attached, until the attachment is dissolved. But the second attaching creditor can only attach the rights of the defendant to the thing—the right to receive it when the first attachment is set aside. The authorities quoted, therefore, in deciding the principle, that the defendant in the attachment cannot maintain an action for the debt or thing attached, against the garnishee, in effect decide, that the second attaching creditor can acquire no right to it until the first attachment is satisfied or dissolved.
    Again, the garnishee (as appears by his answer) does not owe the defendant money, but is only in possession of his funds. The money of the defendant must be in his possession by contract of deposit or mandate.—In either case the garnishee is entitled to indemnity for any losses he may sustain on account of the deposit or mandate. The depositor "is to indemnity the depository for the losses which the thing deposited may have accasioned him. The depository may detain the deposit until repaid what he has advanced, and indemnified for his costs and losses by the owner." Civil Code, 414, art. 28. "The attorney must also be compensated for such losses as he has sustained on occasion of the management of his principal's affairs, when he cannot be reproached with imprudence.” Civil Code, 326, art. 30. It is true, the loss has not yet actually occurred, but suit has been commenced against, the garnishee, which renders its occurrence at least so probable as to entitle him to security against it. Serg. l. of att. 169.
    Some stress is laid on the circumstance, that Rogers himself believes the attachment in Pennsylvania illegal. That is not for him but for the court to decide. The court may think it a legal attachment, although he may believe it very illegal. Whether it be legal or illegal, he will have the money to pay if the court so decide; and he is equally entitled to indemnity for the loss sustained on account of the thing in his possession, whether by a legal or illegal attachment.
    
      The garnishee acknowleges, in his answer, to have funds of the defendant in his possession, but claims to be discharged at present from the payment of them to the plaintiff. If his claim was not admitted, he was entitled to notice of the day of trial, in order to support it. Allyn vs. Wright, 9 Martins Rep. 271. The record shews he was not present at the trial, and there was not a witness examined, to prove that he was notified of the time. If he had been present, and his case had been presented to the district court, the judge surely would have required the plaintiff to have waited the event of the suit, in Pennsylvania; or to have given the garnishee indemnity against it. I hope therefore the court at least will send this cause back, to enable the district court to afford this equitable protection to the garnishee, before rendering judgment against him.
    The answer of the garnishee is not very explicit. He appears not to know precisely the nature of the proceedings against him in Pennsylvania. If I had counselled him with regard to that answer, I surely would have advised him to have obtained delay from the district court, to have procured, and set forth in his answer, copies of those proceedings. Hut that particularity was rather necessary for the plaintiff than for him. He set forth lhat a suit was pending against hirn. This was a substantial defence. If the plaintiff wished to know the particulars of the suit, he should have required a more particular answer to his interrogatories. If both have been a little negligent on this subject, and have thereby not afforded the court the means of knowing what is right, at least let the cause go back, in order that the record of the suit in Pennsylvania may be procured, that the court may be enabled to do that justice which will be satisfactory to them, and to the parties
    
      Maybin, in reply.
    The counsel tor the garnishee relies considerably on the 142d art. p. 288, Civil Code, for the purpose of proving, that payment by Rogers, under the judgment of the inferior court, will not be valid, as it regards the attachment in Pennsylvania. Nothing has, as yet, been urged to weaken the construction I have already given to this provision. The Code is describing the manner in which payments are to be made, and the effects of such payments. It is speaking of those made by the debtor to his creditor. voluntarily; and nothing is said of their being done under judicial process. This article, I , still contend, relates to a payment made by a debtor, after an attachment has been issued, after knowlege of the existence of such attachment, and with the view to injure the attaching creditor. But, says the counsel, " If the debtor ought not to pay voluntarily, the court ought not to compel him to pay.” This does not follow. Here are conflicting rights. It is not the business of the debtor to decide. The question must he settled by the laws of the country. If then, the debtor undertake to pay one creditor voluntarily, he does that which the law will not permit him to do; and consequently renders himself liable to pay anew. But, because he cannot give a preference to one creditor, and cannot determine upon the respective rights, this surely forms no reason to prohibit the court from settling the question; and its judgment, as I have already endeavoured to shew, will always protect, and be a good plea in bar to the garnishee.
    But the Code, in this article, is speaking of a payment to be made by a debtor to his creditor. The counsel himself admits, that the garnishee does not owe the defendant money ; but is only in possesion of his funds. This, of course, proves him not to be a debtor; if so, how then can he bring to his aid this passage of our law ? If he be no debtor, the article is not in the least applicable; for it is speaking, exclusively, of payments made by debtors. Besides, when the Code says, that such a payment, made to the “ prejudice of a seizure or an attachment, is not valid,” &c.; it must surely allude to attachments instituted in this state. It can have no reference to those which are brought in other states, or in other countries, for our laws are not made for cases like those; their operation and effect are confined to the state by which they were enacted.
    But the constitution of the united states is brought into action, and for what purpose ? To shew that the court must give full faith and credit to the judicial proceedings of Pennsylvania. And what will be the extent of that faith and credit ? Why, simply, that an attachment has been instituted against M‘Donogh, at the suit of a creditor, in which Rogers’ property has been seized. This is not denied. Nothing further can be inferred by the court. The existence of the attach- ment is only proven at the time v when the answers were made; and nothing is exhibited to shew that it is still pending, or what has been the result of the suit. But I am willing to give the fullest effect in this case to the article of the constitution. Rogers calls that attachment in Pennsylvania illegal, It is a judicial proceeding. Give it full faith and credit, and the consequence will be, that this court must decide that it is illegal; and of course, of no effect in this cause. If, as the counsel contends, the attachment in Pennsylvania is entitled to the same credit as if it had been commenced in our district court, then this court will pronounce it illegal. The garnishee says it is so in that state, it must be also illegal in this; consequently, it cannot affect the rights which the present plaintiff has acquired.
    The money of the defendant must be in the possession of the garnishee by contract of deposit or mandate. How this is made out I cannot tell. No evidence is introduced to shew in what capacity, or in what manner he received the funds of the defendant. At all events, let him be considered either as a depository or as an attorney. What losses has he sustained ? What advances has he made ? And what cost incurred for the owner of the property ? Nothing of this is exhibited to the court by the garnishee ; till this be done, the articles of the Code, relied upon by him, will be of no service to his cause.
    But his counsel contends, that the garnishee was entitled to notice of the day of trial, if his claim was not admitted. Our law requires notice to be given to a garnishee in only one case, and that is, where testimony is to be introduced concerning the interrogatories propounded to, and the answers of, the garnishee; and that notice must be reasonable. Act of 1811, March 20th, sec. 5. Now, in the court below, it was not the object of the plaintiff to endeavour to disprove the answers of Rogers, He was willing to believe them true; and as they were admitted to be correct, no testimony was introduced; and of course, no notice of the trial was necessary to be given to the garnishee. The moment he has filed his answers in court, his duty is at an end, except in paying the money over, under the order of the judge. If his answers are to be disproved. then he is entitled to notice, and for this plain reason, that he is not to be condemned unheard. If the plaintiff acquiesced in this, the garnishee has done that which was required of him, and ceases to he any longer a party to the suit. As, therefore, testimony was not introduced to. impugn the correctness of Rogers’ answers, it became unnecessary to give him a legal notification of the time of trial of the cause. This is the ground of the decision of this court, in the case of Allyn vs. Wright, 9 Martin, 271.
    If both parties, says the counsel, have been a little negligent, this court ought to remand the cause. Whatever negligence has existed in this business, it has been on the part of the garnishee; for, most undoubtedly, the plaintiff has been guilty of none. What are the facts of the case ? On the 4th of November, 1820, the garnishee presented his answers to the court. A commission is granted to the plaintiff, to prove the debt against the defendant, it is to be executed in Philadelphia, it is executed and returned to this city, and in last May the cause is tried, and judgment rendered against the defendant and Rogers. What, in the mean time, is done by the gar 8‘-nishee, in order to protect himself? Does he Pensylvania. lor an authenticated copy of the record of the suit in which his property was attached? While the commission of the plaintiff was executing in that state, had he not time sufficient to obtain evidence to be exhibited to the court below, in his defence ? Nothing, however, was done, he seemed salisfied with his own answers; and, I presume, considered himself safe. Though it is not in evidence before the court, every indulgence was evinced by the plaintiff to the garnishee; and it is with a very bad grace that he can, in this court, allege a negligence on the part of the plaintiff. Nothing, I think, has been urged to induce the court to think that the decision of the district court is erroneous.
   Porter, J.

Interrogatories were propounded in this case to the garnishee, for the purpose of ascertaining what credits and effects of the defendant were in his hands. He answered, that he had $334 82 cents, which he had ever been willing to pay over, but which he now intended retaining possession of, to indemnify him from any damages he might sustain from an illegal attachment, which had issued from a court in Pennsylvania, against his property, in a suit of some person against the said M‘Donogh.

There was judgment against the principal debtor, and an order that the garnishee pay over the amount due M‘Donogh, in satisfaction. From this decree Rogers has appealed.

The appellee insists, that the decision rendered in the inferior court was correct, on two grounds:—

1. On the general principle, that it is not priority of suit but priority of judgment that gives a preference in the thing attached.

2. That admitting the position to be incorrect, the answer of the garnishee fully authorises the decree which the district court rendered in this case.

I. I have looked into many of the authorities on this subject; there are cases to be found not materially different from the present one, in which the garnishee has been protected, and I think justly. In New-York, 5 John. 102, where the debtor plead in abatement, that an attachment had been previously levied in Maryland, at the suit of a creditor of the plaintiff, and that he had been summoned as garnishee in it. The court sustained the exception, and ordered the action to abate. In a case similarly circumstanced in Massachusetts, 8 Mass. Rep. 458, it was decided, that the second suit should stand continued until the result of the first was ascertained.

If the decisions of these courts were of authority here, they would free us from all difficulty in this case; but they are not; and in the absence of any positive rule, the cause must be decided according to equity and justice. Civil Code, p. 6, art. 21. Taking this principle as a guide, and looking at the facts, we find a person who has committed no fault that I can discover, sued by different creditors, of an individual to whom he is indebted, and placed in a situation in which he runs the risk of being compelled to pay twice. His claim, therefore, to protection is strong, and nothing but positive law can destroy it. If the appellant shewed that he had already paid this money, he could not be compelled to pay it again. If he presented a copy of a judgment in a court of another state, directing him to pay it, I presume there cannot be a doubt but it would be a bar here. If his present situation is one in which both these circumstances may be the result of the previous proceedings against him, his right to relief is as imperious and as equitable.

There is a well known maxim that may aid us in this investigation, qui prior est tempore potior est jure, and this does not, in cases of attachment, apply to the first judgment, for the lien commence with the seizure. The court in Pennsylvania will, no doubt, act on this principle, and I think we should; for we would not permit the act of a garnishee going abroad, and subjecting himself to a recovery in another state, to defeat a privilege which a creditor had acquired by attachment under our law.

II. The answer of the garnishee does not, in my opinion, authorise the order given by the district court. His swearing that it was an illegal attachment that had been taken out in the first suit, ought not to prevent him from holding the effects in his hands to await its final result. For this declaration is nothing more than a matter of opinion; and to make it conclusive, we should be satisfied that the garnishee is a competent judge of a legal question; and that the court before which the attachment was taken out, will not mistake the law. But we doubt the knowlege of the appelant, and we cannot be certain that the tribunal before which it is pending, will decide the case correctly.

From the most attentive consideration I have been able to give this case, I think, that both on principles of law and justice, the district court erred in decreeing the garnishee to pay over the money. Time should have been given to await and ascertain the decision of the suit pending in Pennsylvania, before judgment was entered up here.

I conclude, therefore, that the judgment of the district court should be annulled, avoided and reversed, so far as it directs the payment of the.money in the garnishee’s hands; and that the cause be remanded, with directions to the judge to stay all further proceedings against the garnishee, until the decision of the attachment, pending in Pennsylvania, be ascertained, and that the appellee pay the costs of this appeal.

Martin, J.

I concur in the opinion just pronounced.

Mathews, J.

I do also.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, so far as it directs the payment of the money in the garnishee’s hands; and that the cause be remanded, with directions to the judge to stay all further proceedings against the garnishee, until the decision of the attachment, pending in Pennsylvania, be ascertained, and that the appellee pay the costs of this appeal.  