
    
      SCHOLEFIELD & AL. vs. BRADLEE.
    
    Appeal from the court of the first district.
    It is sufficient to place the property attached in the custody of the law, that it be attached in the garnishee’s hands
    
      Several suits were brought by attachment against this defendant, his property was taken thereon, and judgments were rendered in the respective suits for the plaintiff's. The plaintiffs, in the present suit, obtained a rule against the plaintiffs in the other suits, to shew cause why the proceeds of the property attached, should not be applied to the discharge of thier judgment. Thomas Holt & J. Goddard, two of them, shewed cause, and prevailed in the district court. The present plaintiffs appealed.
    East’n District.
    
      July, 1820.
    The debtor’s property, becomes the common stock of his creditors, in case of insolvency only.
    The counsel agreed that the record of the suits against Bradlee, should constitute the statement of facts.
    With the record came a bill of exceptions taken by the counsel of the plaintiffs to the opinion of the district court, in rejecting parol evidence to shew that the goods attached had never been in the possession of Hyde, the garnishee. The district court being of opinion that evidence out of the record and the answer of the garnishee was inadmissible.
    
      Hoffman, for the appellees.
    The present case comes before this court, in such a shape, as to make it difficult to come at the merits of it, without a recurrence to the records of the cases, lately decided in this court, between the attaching creditors S. S. Bradlee and Jos P. Bradlee, ante 21, and on that account, those cases were made part of the statement of facts. The motion or rule for the distribution pi of the proceeds of the property, attached in the several attachment suits, against S. S. Bradlee, was entered at the instance of the counsel for Guddard, the first attaching creditor, and stands on the minutes of the court separately, in all the atattachment cases, being six in number, to wit: Holt vs. Bradlee ; Goddard vs. same ; Lee & Francis vs. same ; Henshau & Jarvis vs. same ; J. Homdiked vs. same and Scholefield, Redborn & co. vs. same. To the rule thus taken and entered, cause was shewn by the counsel for the appellants only, and the rule was made absolute. The judgment of the court below, does not order that the proceeds of the property attached at the suit of the appellants only, be distributed &c. but that the proceeds attached in all the attachment cases, against the defendant, be distributed according to the priority of their attachments. This judgment, therefore, must stand, unless the appellants can shew we did not attach the property in question. The transcript of the record sent to this court is imperfect, in as much as it does not give the rule as taken in all the cases ; but should any difficulty grow out of this irregularity, it can prove injurious only to the appellants, who ware bound to bring the case properly before this court. They complain that the judgment of the court below is erroneous, and ask its reversal, and this they must make out. The presumption is, that the judgment is correct. A difficulty is now raised, which was not attempted in the court below. It is said that the property, attached by the appellants, cannot be shewn to be the same attached by Goddard and others, and claimed by Joseph P. Bradlee. This we contend, does fully appear from the record in the case ; but if it be not the same, then the appellants have no claim to make against the judgment of the court. On the 23d of December, 1818, process of attachment was served upon J. W. Hyde, and the property of the defendant, S. S. Bradlee, attached. On the 7th of January following, the garnishee answers and sets forth the property in dispute, as the property of the defendant in his possession. Two days after, to wit: on the 9th of January, 1819, when the property of the defendant had thus been made known by the answer of the garnishee, the present appellants prevail on the sheriff to seize and take possession of it under their attachment, even after the garnishee had returned that same property into court as attached, once already by the present appellants. A claim to the property, thus attached, was filed by Joseph P. Bradlee, as well in the case of the present appellants as in those of the other attaching creditors That claim was decided against the claimant in the court below, and on appeal the judgment was confirmed. Can the appellants now be listened to, in their attempt to show that the property now in dispute is not the same claimed by Joseph P. Bradlee ? But the testimony, on file, in the case of Lee & Francis, which makes part of the record in this case, removes all doubt on the subject. The return of the sheriff, to the writ of attachment of the present appellants, describes the property attached in the same manner, as it is described in the testimony above referred to, and proves it to be the same.
    Having removed the difficulty, which has originated in this court, we now proceed to examine the cause, shown in the court below, why the rule taken should not be made absolute. 1. That the property in dispute was not in the possession of the garnishee, at the time of the service of our attachment upon him. 2. That no sufficient levy of our attachment was made upon the property, inasmuch as there was no seizure or corporal possession taken by the sheriff. In support of the first point, parole evidence was offered in the court below, but was deemed inadmissible, and a bill of exceptions was taken by the appellants. The return of the sheriff to the writ of attachment must be taken for true and parole evidence is inadmissible, to prove the contrary. We further contend that the fact attempted to be disproved was settled by a judgment, in one of the cases which now form part of the record in this case, and that the appellant was completely stopped thereby. That judgment cannot be said to be res inter alios acta, because it makes part of the record in this case. The appellants obtained a judgment, in this court, against Joseph P. Bradlee, upon the same testimony which now makes part of the record, filed in Lee & Francis vs. S. S. Bradlee, and now ask leave to prove the testimony not true and consequently the judgment erroneous. This we say the court below was correct in refusing.
    2. We come now to examine whether there was a sufficient levy of our attachments on the goods, the proceeds of which are now the object of controversy. Upon this point, we contend that the return of the sheriff is conclusive. He tells us that he did attach all the goods, &c. in the possession of the Messrs. Hydes, belonging to the defendant. Who can be beard to contradict this return ? But admit, for a moment, that our attachments were incomplete, until it appeared, from the answer of the garnishee that he had property belonging to the defendant. Surely that cannot he pretended after answer made, and a statement of the property given into court. The property then, at least, may be said to be in the custody of the law. We place much reliance on the fact that the property attached by the appellants had been, two days previously, described and returned into court as in the possession of the garnishee and that, not only in our attachments, but also in that of the appellants. Thus, it appears that the boasted diligence of our opponents consisted in wresting the key of the store, in which the goods were deposited, from the garnishees, to wit: Messrs. Hydes, and taking what they please to call corporal possession of them. Let it be remembered, that the store in which the goods were deposited was occupied by the Hydes ; the rent of it was paid by them and that no other person had any other control over it. These facts are fully established by the testimony in the case of Lee & Francis, making part of the statement of facts. But all this enquiry, we contend, the appellants are stopped from making, by the decision of this court between the attaching creditors and the claimant. There is no weight in the the objection that, with regard to the appellants, it is res inter alios actu, because it forms part of the record in the present case. The claimant there contended that Sweetzer, the agent of Joseph P. Bradlee, took possession of the property in question before the attachment, in that particular case, was levied. But, in answer to this, the court say “ The goods were then in the custody of the law.” Now, it is clear that, if that be true with regard to the claimant, it must be so with regard to subsequent attachments, How came the property in the custody of the law? The answer must be by force of the writ of attachment in the case of Goddard, vs. Bradlee. Upon this principle, have the appellants obtained a judgment against the claimant, and will the court now hear them to show its incorrectness ?
    Admitting, however, that we were reduced to the necessity of supporting our attachment by a recurrence to our statutes alone, the result mnst be the same. Under our attachment law of the 10th of April, 1805, some doubt might exist, as there is no provision respecting garnishees ; but the law of the 20th of March, 1811, enlarges the remedy, facilitating a discovery of the property of an absent defendant. It is contended that this latter law was intended for the discovery of the rights and credits only; the words of the act, however, do not authorize such a construction for the garnishee is required to answer touching the goods, chattels, moneys, &c. of the defendant in his possession. This is an act to extend a remedy heretofore but imperfectly given, and should therefore, be liberally construed. The great object in view, in creating garnishees, was to prevent the seizure of the property of third persons, and to prevent the litigation attendant on such errors. The court must be sensible of the fraudulent practices, a construction such as the appellants contend for must give rise to ; for a garnishee, when summoned to answer, might have the property of the defendant so intermingled with his own as to prevent tire sheriff touching it; but on the service of process, at the suit of one he might wish to befriend, he might point out the property to the sheriff and thus defeat the prior attachment. All such evils and inconveniencies are avoided by recognizing the principle that service upon the garnishee binds the property in his hands, and that is in conformity to the principle practised upon under the custom of London in cases of attachment, as also the attachment law of Pennsylvania. (See Sergeant 
      
      on attachment, 12, 14, 15 and 20 and 1 Mass T. R. 117. The fact that the property attached was sold by order of the court, upon application of the appellants, is much relied on, but can have no weight : for the order of the sale was made in such a manner as to preserve the rights of all others concerned. The property was perishable, which made it necessary that it should be sold, and it was deemed by the court unnecessary that it should be sold in the name of all the attaching creditors. The proceeds were ordered to be held subject to the further order, of the court, with a view that previous liens might be first satisfied. Such is the usual mode in a court of admiralty, and is often practised in a court of common law.
    
      Grymes, for the appellants.
    We contend that the judgment of the court below is erroneous, in ordering the proceeds of the property attached by us, to be paid over to other attaching creditors of the defendant, when it does not, nor cannot be made, appear that their attachments were ever levied, on the property the proceeds of which are now in question. The appellees, in support of that judgment, have attempted, to shew that their attachments were the first levied upon this property ; but neither the return of the sheriff, nor the answer of the garnishee, shews it to be the same. The return of the sheriff in our case, is quite different, from that made in those of the appellees, and we contend that the answer of the garnishee does not embrace it, because he never had it in his possession. The appellees caused their attachments to be served on Hyde, the garnishee under an entire ignorance of the existence of the property we have attached, and to our exertions, alone, are they indebted for the discovery. They are now striving to reap the fruits of our labor, and would fain imitate the lordly lion, by making jackals of us, to run down their prey. The proceeds in question are the same returned into the court by the sheriff, as the products of the sale of this property, made by order of court in our case only. In the order of sale, no mention is made of any other attachment. It was certainly incumbent on the appellees, to shew that they attached this same property; but the court below did not only dispense with that, but refused to hear our testimony to shew the contrary. To this opinion a bill of exceptions was taken by us, and should this court think we were bound to prove the negative, this case must be remanded to give us an opportunity of so doing. The court will observer that this is not the only property belonging to the defendant, and attached by his creditors. The Hydes had a large amount in their possession, to, which we never laid any claim, and which has been sold by order of court, on application of the appellees. It is alleged that the sheriff received the key of the store, containing the goods on which our attachment was levied, from the Hydes : but, can any person for a moment, believe that these gentlemen would have delivered to the sheriff the key of a store, in which there was a large amount of property, without an order of court, and at his mere request.
    Admitting, however, that the property in question was in the possession of the Hydes, there never was any other levy of the attachment of the appellees, than by citing the Hydes as garnishees. This, we contend, was not a sufficient service of the writ. It may bind the rights and credits of the defendant, in the hands of the garnishee, but nothing more. The act of the legislature of 1805 gives: the remedy by attachment and by the words of the writ therein given, the sheriff is commanded to seize and take into his possession, the goods and chattels &c. of the defendant. The sheriff is likewise required to execute the said writ in the manner herein directed, and to make a particular return of all goods, &c. which he shall have attached, or seized by virtue thereof. The return of the sheriff, to the writs ; of attachment sued out by the appellees, shews that nothing of the kind has been done by him.
    The law has been complied with in the service of our attachment only, and it is, therefore, the only one which caw bind the property. But it is contended by the appellees, that the act of 1811 has altered the former law, so far as to make it no longer necessary that actual possession should be taken, where property is attached. There is nothing in that law from which such an inference can be made. The object of that law was to enable the creditor to attach the rights and credits of his debtor, in the hands of a third person, and in that case only, leaves the amount to be developed by the answer of the garnishee. An actual seizure is not dispensed with, in all cases where it can be made ; and it is, with reference to rights and credits only, that the authorities cited from Sergeant on attachments must be understood.
   Derbigny, J.

delivered the opinion of the court. The plaintiffs having attached the property of the defendant and obtained judgment against him, were proceeding to have it levied on the proceeds of the goods attached, when Thomas Holt interfered and pretended to be paid in preference to them ; being an attaching creditor of the defendant’s property of an anterior date. Three questions arise on this contest: 1. Is the property attached the same? 2. Are both attachments equally regular and complete ? 3. Has the first attaching creditor a right to be paid first ?

I. The property in dispute consists in goods of the defendant, which had been in the possession of Charles B. Sweetzer, an agent of his, and which Sweetzer, on leaving this country, had placed under the care of Wm and Joseph Hyde, of this place, according to instructions from his employer. The goods were not received from the store in which they were deposited ; but the key of the store and the invoices of the goods were delivered to the Hydes. Things were in that situation, when Thomas Holt laid the first attachment on the property of the defendant in their hands. The answer and deposition of J. W. Hyde, as garnishee, establish the facts, as above stated. The plaintiffs in this case and several other creditors afterwards laid attachments also on the goods of the defendant in the hands of J. W. Hyde. His answers are the same in all cases.

But, the plaintiffs, some days after having attached the property, in the same hands and in the same manner, as the other creditors, caused the sheriff to attach, particularly, a certain quantity of goods in a store no. 4 Bienville street. Are these goods distinct from those which had been already attached in the hands of J. W. Hyde? An attempt has been made to shew that they are ; and, by the manner in which this second attachment is described, some doubt has been created respecting their identity ; but, from an examination of the records of the several suits brought against Samuel S. Bradlee's property and the whole course of those proceedings, it evidently results that the goods here in dispute are the identical goods which were placed under the care of the Hydes, by Sweetzer, and which, having been attached in the hands of J. W. Hyde in this suit and several others, were claimed by Joseph P. Bradlee, and finally released from that claim by the judgment of this court. Should it, however, be deemed satisfactory that direct proof should be quoted in support of that belief, it maybe found in the sheriff’s account of the sale of thegoods, where, among the items deducted out of the gross amount he mentions the store rent and other charges which he paid to the Hydes, and the costs of court in all the attachment suits carried on against those very goods; and it may be further proved in the testimony of J. W. Hyde' who swears that the store in which those goods were placed, and of which the Hydes paid the rent, is the same store in which the same goods were afterwards sold by the sheriff.

The bill of exceptions, by which the plaintiffs complain that they were not permitted to show by oral testimony, that Hyde, the garnishee, never was in possession of the goods attached in this case, we think, cannot avail them. They themselves attached in his hands these identical goods, before they pretended to attach them again in another form. There is abundant proof on record that Hyde had them in his possession, and among others the sheriff’s account, and return, against which we think that oral evidence could net he received.

II. The second ground, insisted on by these plaintiffs, is that their attachment is regular and right, while the others are insufficient. The fact which they rely, in support of that assertion is, that not content with attaching in the hands of the garnishee the property of the defendant, as did the other creditors, they afterwards caused the sheriff to take it into his particular custody. We think, however, not only that an attachment in the hands of a garnishee is sufficient to place the property in the custody of the law ; but that, after the service of such an attachment, the sheriff had no right to go and take the property from the garnishee, without a further order of the court; and that, by taking it, he has neither bettered the situation of these plaintiffs, nor made the condition of the others worse.

III. These plaintiffs contend that the first attaching creditor has no right to be paid in preference to them, in other words, that the property attached ought to be distributed among the attaching creditors. We know of no circumstance where the property of a debtor becomes the common stock of his creditors, except that of insolvency. The debtor in this case is a foreigner, and resides abroad. He cannot claim the benefit of our insolvent laws, nor can his creditors invoke those laws in their behalf.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  