
    John Brownlee ads. State of South Carolina, for the use of James S. Shingler. Thomas W. Brownlee ads. The Same. John Brownlee ads. James Shingler, Jr.
    1. B. recovered a judgment in attachment, under which he received a certain sum of money, giving the usual bond on its receipt. Subsequently, B.., another creditor, also obtained a judgment against the absent debtor, and the former judgment was set aside, on the ground that the fund which had been received by B. was not liable to attachment. B.., to whom the absent debtor had exQcuted a general power of attorney to act for him and in his name, in the collecting and paying over money clue or owing by him in South Carolina; and to whom, also, befor3 the date of the power, he had written a letter acknowledging a debt, and indicating the source of payment, withthis remark, "get what you can there, (in S. C.) and write soon." "I will make up the baIance,~vith interest"-caused actions to be instituted on the recognizance of the principal and surety given to the clerk, on the receipt of the money by B.; as also on the bond before the clerk, before the issuing of B's writ; but both the letter and the power were before any cause of action existed on the bonds. Subsequently to the commencement of the suits, the absent debtor executed a release to B., of "all and all manner of actions, suits, reckonings and demands," &c., "for and on account of the recognizance of B.," &c., with a special clause to this efiect: "And I do hereby particularly disclaim all suit or suits enumerated in the above recognizance, as above stated."
    
      2. The release of B., by tbe absent debtor, was valid.
    3. Tbe letter written by the absent debtor to R. could not operate as an assignment of an interest in the cause of action, which did not, either at its date or at the time the power was executed, have an existence.
    4. An attorney cannot acquire a vested interest in a chose in action, or other matter not embraced in the power itself, or indicated by the paper under which he claims, as an equitable assignment.
    5. The alleged assignment in the letter to R. held too vague and indefinite to deprive the absent debtor of his legal control over his funds in S. C., when he might choose to resume and exercise it.
    
      Before Butler, J. Charleston, January Term, 1842.
    These were actions of debt on recognizance given by defendants, under the attachment Act.
    The defendants’s counsel took out the following rule, to wit:
    Ordered, on motion of Petigru & Lesesne, defendants's attornies, that Messrs. Smith & Richardson, plaintiff's attornies, show cause, on Saturday, 8th January, inst., why-these cases, on payment of costs to this date, should not be non grossed, the plaintiff, James S. Shingler, having executed a release to defendants, and discontinued the suits. In support of the motion, the following facts were made to appear: That in February, 1840, Brownlee recovered a judgment in attachment against Shingler, on which he took out of court $663 60 cents. At May Term, 1840, on motion of Shingler's attorney, Judge O’Neall set aside Brown-lee’s judgment, on the ground that the fund which he had attempted to attach was not liable to attachment.
    
      The attornies of Shingler then commenced suits against Brownlee, on the bond which he gave to the clerk, and also in debt. On the 25th November, 1841, Shingler executed a release of Brownlee, and .discontinued .the action. To this rule, and the statement above, the plaintijf',.@ attornies made the following return.
    “The first two of these cases are against the principal and surety .of an attachment bond given to the clerk, on the receipt from him of seven hundred dollars, paid into court, under ap attachment issued by Thomas W. Brownlee against James S. Shingler, on which judgment was obtain? ed, and afterward^ set aside by his liopor, Judge .Q’Neall, on the ground that the garnishee’s return .contains no property which was the subject of attach crept.
    “ The third case is founded, on the attachment bond, given to the defendant in attachment, before the clerk:, previous to the issuing of the attachment writ in the same case.
    “These three cases, as well as various other prior proceedings, were instituted at the instance of. Jlaniel T. Ryan, a subsequent attaching creditor, w7bo claims all the assets of James S. Shingler, jr.; in the State of South Carolina, by virtue of his attachment, and also by the following extracts of a letter from Shingler to Ryan, followed by a power of attorney from the same to the same.
    
      
      Copy of Letter.
    
    “New MadRID, May 2, 1835.
    
      Dear Ryan- — In answer to your letter I have nothing to say, but cheerfully enclose my note, the amount of which I am aware, is justly due you ; and if I have not, sufficient funds in South Carolina to satisfy you, you may rest assured that I will at some time ere long, make you up the balance.
    (Signed) James S. Shingler.
    P. S. — I would freely send you your money, but it hath fled from me like a departed spirit; get what you can there, and write soon. I will make up the balance with interest. Direct to New Madrid, Missouri State; this will be mailed at Smith-land, Kentucky. J. S. S.”
    Afterwards comes the following power of attorney, as transmitid to Ryan:
    
      Copy of Power of Attorney.
    
    STATE OF ARKANSAS, )
    
      Clark County. )
    
    Know all men by these presents, that I, James S. Shingler, of the county and State aforesaid, do hereby constitute and appoint my friend, Daniel T. Ryan, of the State of South Carolina, Rich-land district, my true and lawful attorney, for me and in my name to transact any and all my business that I may be interested or become interested in, in said State of South Carolina, to receive and receipt for all sums of money that may be due, and pay over any sums of money that I may be owing, and to do and perform any and every act or acts in the management of my business, that I could do, were I personally present, hereby ratifying and confirming whatever my said attorney may do in the premises.
    In testimony whereof, I have hereunto set my hand, and affixed my seal, this 4th October, 1839.
    Teste, (Signed) James S. Shingler, [Seal.]
    (Signed) Joseph Gray.
    Wm. G/ Overton.
    STATE OF ARKANSAS,
    
      Clark County.
    
    This day personally appeared before me, Thomas G. Hudsoii, one of the justices of the peace in and for said county of Clark,. James S. Shingler, with whom I am personally acquainted, and acknowledges the execution of the within power of attorney to Daniel T. Ryan, of South Carolina, to be his act and deed, for the purposes therein expressed.
    Given under my hand, this 4th day of October, 1839.
    (Signed) Thos. C. Hudson. [Seal.]
    I, James S. Ward, clerk of the Clark circuit court, do hereby certify, that Thos. C. Hudson, Esq., is an acting justice of the peace in and for the county of Clark.
    In testimony whereof, I have hereunto set my hand, as clerk of said court, and affixed the seal of office, at my office in Green-ville, the 7th day of October, 1839, of the Independence of the United States the 64th year, and of the State of Arkansas/ the 4th year. ■
    James S. Ward, Clerk of Clark Circuit Court. [Seal.]
    In' reply to' thé rule in this case, Daniel T. Ryan, by his at* torriies, shoe's for cause, that- — =—Brownlee, some time in--, issued his writ .of attachment against James S. Shingler.- Sub-* sequently thereto, another writ of attachment was issued by the said Daniel T. Ryan. The said Brownlee, under his said attach-* ment, obtained the sum of seven hundred dollars, and gave his bond to pay it back; in the usual form. Subsequently, the said Ryan also obtained a judgment, and the judgment of the said Brownlee Was Set aside; May, 1840. Ryan, being the creditor of Shingler; obtained a power of attorney to recover the amount of the said bond, and accordingly has commenced suit on the said bond; and subsequently the said Shingler is induced to execute a release of this action, in which the deponent believes he has no interest, as the same belongs to the said Ryan; as creditor of the said Brownlee; and by virtue of his attachment, reduced to judgnteflt.
    (Sighed) _ Olíver M. Smith, attorney in fact of Ryan.
    
      Sworn to before me, January 31 si; 1842,
    DanÍeÚ HOrlbeck, C. C. P. éf Magi ex officio.
    
    
      Opinion o f the Presiding Judge.
    Upotl the state of facts thus set forth, after argument, my judgment was asked. It was undoubtedly the intention of the said Shingler to release all cause of action against the defendant, but it was objected to in the argument that he could not do so, ds the actions were carried on for the benefit of Ryart, the creditor of Shingler; and that Shingler’s power of attorney, coupled with his letters, acknowledging a debt, should be fegarded as an equitable assignment tb Ryan of Shingler’s fhnds in South Carolina. Perhaps equity might regard a power of attorney to a ere* ditor, coupled with an interest, as an assignment, so as to deprive the debtor of all control of suits commenced under it. That cannot be the effect which a court of law1 would give to such a páper. As a légal instrument, it is always revokable by its principal; and the trusts under it cannot be enforced in a court of strict law jurisdiction. Shingler’s release to defendants must be regarded as a revocation of his power of attorney, so far as defendants are concerned. It is, therefore, ordered, that the aforesaid actions be discontinued, upon the defendants paying the costs of them to this date.
    A motion was made to set aside the order, oil the following ground:
    Because the facts established such hn equitable interest' in Daniel T. Ryan, the creditor of Shingler, as to prevent his executing a release; and a court of law will, in all questions arising incidentally in a cause, take notice of tlie equities of the parties, and not interfere to enable a debtor to defraud his creditor.
    
      F. D. Richardson, for the motion.
    Á power coupled with an interest, irrevocable. Cited 11 J. Rep. 47; 2 Liv. on Agency, 307 ; 8 Wheat. 174. It was irrevocable by Shingler, and comes within the legal proposition laid down. Cited 2 Sumner C. C. Rep. 387; 11 J. Rep. 169.
    As to the construction of assignments at law and in equity, cited 9 Cow. 115. As to assignments, cited 12 J. Rep. 346 ; 4 T. Rep. 326 ; 16 J. Rep. 31; 5 Wheat. 277.
    Whether courts of law respect equitable assignments, cited 1 Wheat. 233 ; 12 J. Rep. 343; 4 J. Rep. 406.
    Petigru, contra. Hunt, in Reply.
    
      
      
        Thomas W. Brownlee vs. James S. Shingler.
      
      
        Rule lo shew cause why a judgment in attachment should not be set aside.
      
      O’Neall, J. The judgment was recovered by default, after the usual rule for a year and a day, which expired on the 29th June, 1839. The only effects or choses in action of the absent debtor, which were attempted to be attached, were those in the hands of William Mallard. He returned he had no property in his hands belonging to the absent debtor, except the residue of the estate of Elisha Mallard, deceased, which, by his will, was divisible between the absent debtor, Mary Ann L. Ryan, and other persons, and which was in his hands as executor, but in what shares or proportion, or when the division was to he made, were questions tinder adjudication irx the Court of Equity. The garnishee afterwards filed a supplemental return, that, by the proceedings in equity, the share of the absent debtor was ascertained to he $663 60, and was^by the executor, paid into the Court of Equity, under an order of that court. The plaintiff moved and obtained leave-in the Court of Law, to apply .to -the Chancellor to have the funds paid to him, and the Chancellor, on the presentation of the order made at law, ordered the funds to be' paid to the plaintiff, which was accordingly done. -I have struggled to sustain the proceedings in attachment, for I ant unwilling to set aside a judgment on a mere technical ground; but I have no right to hesitate when the law is clear,
      The objection here is, that the a-bsent debtor has never been made, legally, a party to this proceeding; and if so, then it is the same as if it had ne. ver existed. By the Act of 1744, the monies, goods, chattels, debts and hooks of account of the absent debtor might be attached. By the Act of 1783, lands, leasehold estates and chattels real, were also made liable. Construing these Acts with reference to the custom of London, there can be no doubt that a legacy in the hands of an executor is not embraced in the words used describing the things which may be attached. Serg. on Attach. 86. In the case of Young vs. Young, 2 Hill, 425, the Act was construed by the custom of London, and it was held that a share in the hands of an executor, and to which the absent debtor was entitled, could not be attached. The case of Schults vs. Bolton, 2 McC. 479, is the only case which has been relied upon to sustain the attachment. That case merely decided that “monies” belonging to a partnership might be attached for the debt of one of the partners. In enforcing the reasoning by which he came to this conclusion, the Judge who delivered the opinion, (my brother Richardson,) illustrated it by stating a case, He said, “ for instance, take the case of one of several distributees of an intestate’s estate. The estate may be variously incumbered, but the apprehension of incumbrances cannot destroy the right to attach; although, should any such appear, the attachment would not destroy the lien.” If by this was meant, as I suppose was, the distributive share of the real estate, then that was a legal estate, it was the land of the distributee, and was within the words of the Act of 1783. Taking this to be the meaning of the Judge, neither the case nor his dictum conflicts with Young vs. Young, and cannot help the attaching creditor.
      That the plaintiff has obtained the order of the Chancellor, directing the money to be paid to him, cannot legalize a void proceeding under attachment.
      I think, too, the absent debtor may set aside these proceedings, without’ entering special bail and dissolving the attachment, according to the 8th section of the attachment Act, 1744. That contemplates an attachment legally levied and ended. This motion is allowed, upon the fact that neither of these had been done,.
      The rule to set aside the judgment is made absolute.
    
   Caria, per

Butler, J.

As this case was presented on the circuit, there was no dispute about the facts. It was there argued as a question of law arising out df a statement of facts made in the return of' the attorney, for the plaintiff, Mr. Smith. In this return, there is no allegation that the release of Shingler was not genuine, or that it had been obtained from him by fraud. The ground taken was, that the paper could not operate to release and discontinue these actions; inasmuch as they had been commenced under a powrnr of attorney, coupled with an interest by'an equitable assignment to' Daniel J. Ryan, the creditor of Brownlee. Under such á state of facts, the question arose, was it competent and proper for the circuit judge to make an order for the discontinuance of these actions'? We are of opinion that it was competent for the judge to entertain the question; and whether the order was properly made or not, depends on the legal effect and operation of the power of attorney of Shingler to Ryan, and also of his release of the causes of these actions. There is no doubt but that the terms of the release are fully sufficient to effect the purpose designed by Shingler. After reciting these proceedings in attachment, by Brownlee against himself, (Shingler) under which Brownlee had received a sum of money justly due to him for money lent, the release sets out that actions had been commenced on the recognizance of Brown-lee and his surety, to recover back the same money; and it then uses the following language, both for the purpose of releasing the cause of actions, and disclaiming their continuance in court. “ Now know ye, that I, the said James S. Shingler, for and in consideration of the premises, &c. have released, remised, and forever quit claim, and by these presents do release and quit claim to the said Thomas Brownlee, his heirs, executors and administrators, all and all manner of actions, suits, reckonings and demands whatsoever, for and on account of the recognizance so entered into by the said Thomas W. Brownlee, as above mentioned, or for and on account of any of the matters or things before mentioned,” <fec. with this further special clause. “And I do hereby particularly disclaim all suit or suits commenced on the above recognizance as above stated.” The release must prevail, to the extent of its purport, unless the power of attorney to Ryan has conferred upon him such rights as to render it irrevocable. And this depends altogether on the question, whether it can be coupled with such vested interests in Ryan, as will be recognized and protected by this court. In the case of Hunt vs. Rousemanier, 8 Wheat. 203, C. J. Marshall speaks of three kinds of powers of attorney, each having very different incidents. 1. A naked power of attorney, by which one authorizes another to act generally, or do some particular thing in his' name. This is a power depending entirely on the will of the principal, and ceases when his will or permission is withdrawn. 2. A power containing a covenant in it, that the power is to be enforced for the benefit of the attorney in relation to the execution of the power, but which must be done in the name of the principal. In such case, the power may be regarded in the nature of a security, and, by its terms in general, being irrevocable during the life of the principal, it is only revoked at his death, by the operation of law; for this reason, that after that time, the power could not be executed in his name. The 3d, is a power coupled with an interest, as it is termed. This must contain a conveyance of an interest to the attorney. The power and the interest are united in the same person, in the same instrument. In other words, as Judge Marshall expresses it, “the power must be ingrafted on an estate.” In which case, the party having the power, has an interest uncontrolable by the principal, and which will survive tojiim after the death of the principal. The power of attorney which we have under consideration in this case, cannot come within either the second or third class referred to. It is a general power from Shingler to Ryan, to act for him and in his name, in the collecting and paying over money due to or owing by Shingler in South Carolina. In its terms it is an agency conferred on Ryan to act for the benefit of Shingler. There is no covenant that the power is to be exercised for the benefit of Ryan, in relation to any particular matter in which he has an interest.

There is nothing in the terms of the power itself to prevent Shingler from revoking it whenever he might think proper. This was not insisted on in the argument of counsel who make this motion. But it was contended that the power of attorney was given to Ryan to enable him to use Shingler’s name for the purpose of enforcing a right vested in him under the assignment contained in the letter of May, 1835. Can that letter operate as an assignment at all'? It amounts to an acknowledgment of a debt, and indicates the source of payment, with this remark : “get what you can there, (in South Carolina,) and write soon; I will make up the balance with interest.” There is one fatal objection to this operating as an assignment of an interest in the cause of action upon which these suits have been commenced. This cause of action did not then, or at the time the power of attorney was executed, have an existence, and could not, therefore, have been within the contemplation of the parties. And no case can be found in which the attorney has acquired a vested interest in any chose in action, or other matter not embraced in the power itself, or indicated by the paper under which he claims as an equitable assignment. Such a proposition would be too extravagant in itself, and would lead to an assertion of a right on the part of the attorney never conferred, or intended to be conferred, upon him by his principal, and would make a general power intended for one object subserve the end of another never contemplated. It would, indeed, be making a conveyance operate on a matter not embraced in it, or intended by the principal to be embraced in it. This case affords an illustration. Shingler may have given a power to bring actions against his debtors at the time the power was conferred, but he never could have intended to bring an action against a bona fide creditor. And if he has not the power to release this action against Brownlee, he will be compelled to do that which he never intended to do himself, and at which, perhaps, his sense of justice would revolt; for it appears he owed Brownlee all that he recovered under his attachment. The fact that that attachment has been set aside does not change his liability to pay •the debt, although it may have given’him a mere cause of action, a judgment which might enable him to collect that which he would be compelled to pay back in a different form. But we think further, that the alleged assignment in the letter was too vague and indefinite to deprive Shingler of his lega-l control over his funds in South Carolina, when he might think proper to resume and exercise it. .For, suppose he had come and demanded payment himself of monies coming to him, could Ryan have interposed his •authority under the power, to deprive Shingler of his right to receive them in his own name ? I apprehend that in such .ease the authority of the attorney would be superseded by that of his principal, as he could shew no vested interest in any thing which he might claim. We think the decision below was right, and therefore refuse the motion.

Motion dismissed,

Richardson, Q’Neall, Evans, Wardlaw and Frost, JJ. concurred.  