
    Cutler v. Baker.
    In the Court below,
    Galvin Baker, Plaintiff; Richard Cutler, William Cutler, and Richard Cutler, jun. merchants in company under the firm of Richard Cutler if Sons, Defendants.
    
    In a process by foreign attachment, after judgment against the absconding debtor, and a regular demand with theexecution upon the garnishee, who neglected to expose effects, and had become Saible to the attaching creditor, the garnishee, being threatened with a scire facias, gave his note to the attaching creditor for the amount of the hands witlf a condition thatthesame should be , ,, given up, if the absconding debtor should recover such effects m a suit then pending against the garnishee: Held that this was a sufficient payment to protect the garnishee.
    T HIS was an action of book-debt.
    The defendants pleaded the general issue ; and on the trial the defence was, that they had paid the debt to Benjamin I. Moore 1st Co. on a process of foreign attachment.
    It appeared, that on the 26th of October, 1804, Moore (st Co. commenced an action, by writ of attachment, against Baker, describing him as an absent and absconding debtor, and left copies with Cutler 1st Sons as his factors, See. At the March term of the County Court in 1805, they recovered judgment against Baker ; and within sixty days afterwards, a demand was regularly made upon Cutler (St Sons of the goods and effects of Baker in their hands, towards satisfying the execution : but none were exposed, and the execution was returned unsatisfied. On the 11th of June following, Baker commenced the present action against Cutler 1st Sons. They being then liable to Moore is? Co. and being threatened by them with a scire facias on the judgment against Baker, to avo*d cost> Save a note *n satisfaction of so much of the execution as they owed Baker, but which was not indorsed thereon, of the following tenor : “Value received, we pro- 
      “ mise to pay Benjamin I. Moore is? Co, of New-York, three “ hundred and forty-four dollars, andjfiy-pitio cents, with in- “ terest, whenever a certain suit in favour of Calvin Baker “ against us, now pending before the Superior Court for the “ County of New-Haven, shall be determined,—provided “ said suit shall be determined in our favour—otherwise this 44 note is to be given up to us. City of New-Haven, March 14 26th, 1806.
    
      Richard Cutler is? Sons.?' f,
    Upon this evidence, the Court charged the jury, that the law was so, that the defendants had not legally paid said debt to Moore is? Co. and were liable to pay the same to the plaintiff ; and directed the jury to find a verdict for the plaintiff to recover of the defendants* said debt and costs. This being accordingly done, the defendants filed their bill of exceptions to the charge.
    
      Smith, (of New-Haven,) and Tivming, for the plaintiffs in error.
    It is admitted, that by scire facias sued out, at any time within one year after the refusal of the plaintiffs in error to pay, on Moore isf Co's, execution, tlifcir debt to Baker, Moore is? Co. might have recovered of them, not out of Baker's effects in their hands, but out of their own proper estate, the amount of this debt, with interest, and costs. It is also admitted, that such recovery would have been a valid defence against Baker. From these admissions it follows, that, at the time this payment was made to Moore isf Co. they were lcgtdly entitled to this money out of the property of the Cutlers ; otherwise, Moore it? Co. might have sued for that, which, at the time of bringing their suit, they were not entitled to have : And the Cutlers were, at the same time, legally bound to pay this money ; otherwise, right and obligation are not reciprocal; and this payment is a good defence for them. If it be not, that which they were legally obliged to do, which the law would compel them to do, and 'which, being clone by legal compulsion, would avail them for a defence, will not, being done voluntarily, avail to the same effect. And the doctrine, that this payment could be well made to Moore (Jf Co. only through a scire facias and judgment against the Cutlers, subjects every garnishee, who may, even for the best reasons, refuse to deliver the property in his hands on demand of the creditor, to the costs of a scire facias, although convinced that the creditor is entitled to the property.
    To a copy left with the agent of an absconding debtor, the statute gives, as to the property in such agent’s hands, the precise effect of an attachment: and the garnishee is constituted the holder of the property, with the same obligation and responsibility, to both creditor and debtor, which belong to an officer when he attaches property. To neglect ov refuse the delivery of the property, when demanded, to satisfy the copying creditor’s execution, is a legal wrong in the garnishee, and would, if the statute had not provided a remedy, have given a right of action to the creditor. If, indeed, the statute had been silent with respect to a scire facias, the legality of this payment would not be questioned, and with what reason can the circumstance, that the statute has prescribed the manner, in which the creditor may obtain, from the garnishee, redress for the wrong done him by his refusal to expose bis principal’s effects, be construed to take away his right to redress, till he has merited it by taking upon himself, and giving to the garnishee, the trouble of a resort to a court of justice ?
    If it be granted, that this debt can be well paid to Moore d Co. without scire facias and judgment, it is well paid by the note, that has been given. The note, whatever it is, has extinguished of Baker’s debt to Moore Cf Co. a sum equal to the debt due from the Cutlers ; and for what consideration Moore isl Co. as between them and the Cutlers, were induced to apply this sum as received from the Cutlers, to the reduction of Baker’s debt does not affect Baker.
    
    
      The process and judgment of law mentioned in the 6th paragraph of the. statute relating to absent and absconding debtors, refers to the process and judgment against the absent and absconding debtor, and not to the stire facias and judgment against the garnishee.
    
      Daggett, and Bristol, for thé defendants in error.
    The plaintiffs in error, have not so conducted, as^tobe entitled to the benefit of any payment, which they have made to Moore is" Co. The process of foreign attachment in Connecticut, being founded entirely on the statute, the plaintiffs in error must conform strictly to its provisions, when they claim that the debt due to Baker has been taken from them, under the law in question. This principle is too clear in itself, to admit of illustration.
    Have the plaintiffs paid the debt to Moore ⅛" Co. in conformity to the provisions of the statute under which it was attached ?
    It has been contended, by the counsel for the plaintiffs in error, that their neglect to pay the debt to Moore ⅛* Co. made them liable for the amount of the debt due Baker. It is true, such liability accrued, upon their refusal to pay the money when demanded by the sheriff on Moore ⅛" Co.'s execution : But it is equally true, that such liability, on general principles, cannot prevent Baker from pursuing the recovery of an honest debt ; nor could this liability be pleaded in bar to the original action in favour of the defendants against the plaintiffs in error. The statute has pointed out th& mode, in which this liability shall be enforced, and rendered an effectual bar against Baker’s claim ; and any deviation from this mode, will leave the plaintiffs in error without the protection furnished by the.statute.
    This is to be clone, by praying out a scire facias against the Cullers and pursuing it to final judgment. Then the garnishee has the option, of turning' cat the property of; the principal, or paying the debt, when demanded on the execution against the absconding debtor ; or to suffer a judgmeftt against himself upon the seire facias: And as these are the only modes of withdrawing effects from a garnishee, mentioned in the statute, it is believed, that the parties are not at liberty to devise any other, which, in their opinion, wiii do more substantial justice.
    But the 6th paragraph of the statute provides for the security of the garnishee against the original creditor, and prescribes tinder what circumstances a payment shall avail him in language too clear to be mistaken. It declares, “ that the “ goods or effects of any absent or absconding debtor, taken “ as aforesaid by firocess and judgment of law, out of the “ hands of his attorney, agent, kc. shall fully acquit and dis- “ charge such attorney, agent, &c. from all and.every action, “ suit, trial, payment and demand whatsoever, that may be “ brought, commenced, or made, by the principal* his exe- “ cutors, or administrators, of or for the same.” The words, “ taken as aforesaid by firocess and judgment of law,” can refer to nothing except the process, by which the effects of an absconding debtor are demanded of the garnishee, by a proper officer ; Or to the judgment against the garnishee on the scire facias. To consider money paid by a subsequent agreement between the factorizing creditor and garnishee, as being “ taken by process and judgment of law” is an absurdity in language.
    The liability of the garnishee may have been incurred by “ firocess of law but this does not satisfy the statute : For, to protect the garnishee, the goods or effects must not only be made liable, but “ taken” out of the hands of the garnishee, by “ process and judgment of law.”
    The legislature, also, designed in this process, to provide some security and furnish some evidence, that a debt thus withdrawn from an absconding debtor has been applied for his benefit. If the money is paid by the garnishee when demanded on the execution against the absconding debtor, this security is acquired by the known responsibility of the officer authorized to receive it ; and ample evidence of the payment is ftirnished by the officer’s indorsement on the execution, which is presumed to be returned to the Court from which it issued. A similar security is furnished by satisfying the judgment on the scire facias.
    
    In the present case, not a cent has ever been indorsed as applied on Moore IS Co.’s execution against Baker. Indeed, nothing has ever been, at any time, paid on this execution ; and should Moore pursue Baker for the whole amount of his .original demand, and should the latter be fortunate enough Xo discover the private agreement between Moore’s attorney and the Cutlers, it could not be admitted in a court of justice as evidence of any payment whatever—for the note was of a conditional nature, depending for its validity on the issue of the present trial ; and, until after this case is decided, it is totally uncertain, whether the note given by the Cutlers is of any validity.
    
      
      
        Scat. 139, edit. 1796.
    
   By the Court,

C, Goodrich, and IIosmer, Asets. dissenting,

The judgment was reversed.  