
    *Elizabeth Parker, Executrix of Isaac Parker, v. The Creditors of Isaac Parker. [In the matter of Col. Drayton.]
    The garnishee dying pending the proceedings, a judgment entered up against him after his death is irregular, and may be set aside at law: and if the executors appeared and consented to the trial, at most it could only be regarded as a judgment against them, and not rank as a judgment against the garnishee, so as to give priority over other creditors who had not obtained judgment in his lifetime. [■*■38]
    By the Attachment Act things capable of being identified, such as specific chattels and evidences of debts, are bound by the levy so that the garnishee cannot after service deliver them to the owner, or any one else, without being liable for their value; and in this sense, the attachment is said to have a lien from the time of its being levied: but, iu the case of a debt due by the garnishee to the absent debtor, it is incapable of being identified specifically as his estate, the'service of the attachment creates no general lien on the estate of the garnishee; and the only way the money so due can be bound is, that by the service of the attachment the garnishee is, to the extent of his debt, made the debtor of the plaintiff, but no lien exists against him until judgment is actually entered against him. [*39]
    De Saussure, Chancellor. In this case the master has made a report, which states the question clearly, to which the solicitors on the part of the creditors of Isaac Parker have filed exceptions.
    The following is the report of the master; “ That in the distribution of the funds in this case, a question arises as to a claim on the part of Col. Drayton, under the following circumstances : On the 1st September, 1808, Col. Drayton became the surety of John Parker, in a bond to John King, conditioned for the payment of $150. On the 20th of October, 1808, John King assigned the bond to Jacob Martin. As a counter-security to Col.-Drayton, the said John Parker deposited with him the bond of his brother, Isaac Parker, for $2586, dated 11 May, 1811. About-Jacob Martin, assignee of John King, sued out a writ of attachment against John Parker, a copy of which w%s served on Isaac Parker, for the purpose of attaching in his hands the amount supposed to be due on his bond to John Parker. Isaac Parker made his return as garnishee, stating that he had no moneys of John.Parker in his hands, and that the bond in which he was bound to him, was paid. On this return an issue was made up, which was not tried in the life-time of Isaac Parker. Testimony had been taken, however, and when judgment was entered up against John Parker, the absent debtor, a verdict was also taken against Isaac Parker, and judgment entered against him on the 19th June, 1824, which was subsequent to his death. Col. Drayton, having paid the bond held by Martin, as assignee of King, claims the benefit of Martin’s proceedings against Isaac Parker, which have been duly assigned to him. It is objected to this claim, that the judgment entered upon the verdict taken after the death of Isaac Parker, is irregular, and that this claim cannot rank as a judgment debt against the estate ; and urged in its behalf that the attaching creditors obtained a lien on the funds of-the absent debtor, in the hands of the garnishee, which is not defeated by the death of the latter.
    
      “ It appears to me, however, (says the report,) that the claim in this -¡.op-i case cannot rank as a judgment so far as the question depends* on the Act of 1144, called the Attachment Act. The object of that Act is not to operate on the estate of the garnishee, but on that of the absent debtor. The effect of it, is not to give the attaching- creditor a lien on the estate of the garnishee for the amount of funds which he may have in his hands belonging- to the absent debtor, but only to take such funds from under the control of the absent debtor, and entitle the creditor to payment out of them, and in preference to the other creditors. The death of the garnishee may not affect this right or preference obtained by the issuing- of the writ of attachment, so far as the absent debtor or his creditors are concerned ; but, as respects the garnishee and his estate, it appears to me that the proceedings-are arrested by his death, and that it would be necessary to bring his representative into Court, by proper process, before any further proceedings could be had, intended to operate on the interests of the estate of the garnishee. It seems such proceedings wei e not had in this case, and therefore, when this judgment was entered, Mr. Parker being dead, there was no party in Court against whom it could be rendered.
    
      “ The executrix now contends that there is nothing due from the estate of Isaac Parker, on his bond to John Parker; but I have not entered into an investigation of that. The above view is altogether independent of the question, whether a Court of law will set aside this judgment, which is actually of record.”
    To this report the following exceptions were filed:
    1. Because the master has rejected the proof of the judgment of Jacob Martin v. Isaac Parker, whereas it is submitted, that as the proceedings against John Parker did not abate by the death of Isaac Parker, the judgment was properly entered up after his decease.
    2. That the lien of the attachment was not lost by the death of Isaac Parker, and that the judgment of Jacob Martin, though itca.nnot by relation defeat purchasers or intervening judgments, is good against the executors and general creditors of the said Isaac Parker.
    The questions which arose in this able report were argued, and I am now to decide on them. It was admitted, that the death of the garnishee in attachment does not abate the suit by attachment, nor the death of the absent debtor. This, I apprehend, must be on the ground that the proceedings in attachment are in the nature of proceedings in rem, and therefore not abateable by the death of *the absent debtor or gar-J nishee. The counsel however made a distinction, by which he endeavored to weaken the force of the admission, insisting that, though the death of the garnishee will not abate the suit by attachment against the absent debtor, it will stop proceedings against the estate of the garnishee. The remedy by attachment, given by statute to the creditor, is so anomalous and so different from the course of proceedings under the common law, that scarcely any light can be derived from the rules of the latter; and it would seem, that when the statute gives such a remedy, all that is necessary to give it complete effect, follows in its train. I am not, however, decided in any opinion on this question. I lean very much to the opinion of the master in his report; but will sustain the first exception to the report, with a view to its being carried up to the Appeal Court.
    The 'second exception I also sustain, for the reasons, and with the qualification stated therein; to which should be added, that the application to set aside the judgment in question should have been in the Court of law, there being no pretence of fraud in obtaining it, on which this Court could have interfered.
    It is therefore ordered that the exceptions be sustained, and the report ‘ of the Master modified accordingly.
    From this decree an appeal was taken on the following grounds:
    1. Because a proceeding in attachment is not a proceeding in rem, but a proceeding in personam, the quasi in rem being in the nature of a distringas to compel an appearance
    2. That although the death of Isaac Parker, the garnishee, did not abate the proceedings as against John Parker, the absent debitor, yet that his death did abate all proceedings as against him, just as much as if John Parker had brought suit against him on the bond, alleging it to be unpaid, and Isaac Parker having pleaded payment, had died before verdict pending the cause for trial.
    3. That this is not a case in which one Court is prohibited from examining collaterally the judgment of another independent tribunal, but is a case in which, on the face of the record, the absolute nullity thereof is apparent, and is therefore a clear case of a palpable defect of jurisdiction.
    4. That the issue on the verdict upon which judgment was entered against Isaac Parker, was a mere collateral issue to try the question, under a feigned issue, whether Isaac Parker had in his hands funds of the absent debtor; that, upon the finding no ^judgment could regu- r*q8 larly be entered: that the effect merely was, that Isaac Parker L was compellable to amend his return and deliver up the bond : that the proceeding was not in the nature of a debt on bond; that no judgment for the debt could be entered on the finding ; that the bond did not pass in rem judicatum, but was to be delivered to the attaching creditor to be sued in due form.
    
      Grimhe, for the appellant.
    
      Petigru, contra.
   Harper, J.

So far as the claim to rank as a judgment creditor of the estate of Isaac Parker, depends on the judgment entered up against Isaac Parker after his death, regarding it in the light of any other judgment entered in like manner against a deceased defendant, we think it cannot avail the claimant. The brief merely states the fact, that the judgment was entered after the death of Isaac Parker. If so, undoubtedly it was erroneous, and might be set aside at law. Though the death of a garnishee does not abate the proceeding in attachment, yet undoubtedly the plaintiff, when an issue is depending, ought not to proceed to trial and judgment without bringing in the executors. The proper method of doing this, I suppose, w'ould be by a scire facias. In the present case, it was stated in argument that the executors had appeared and consented to the trial, and from this it seemed to be inferred that the executors would be estopped from any proceeding to set aside the judgment. No other person than the executors would proceed at law for that purpose. Standing as a judgment against the deceased himself, it would have priority against all creditors who had not obtained judgment in his lifetime, and if this preference were obtained by the act and laches of the executors, they would be liable to the other creditors as for a devastavit. But I cannot take this view of the matter. The voluntary appearance of the executors , amounted to no more than if they had appeared upon a scire facias. They consented to go to trial, and I must suppose that the proper judgment should be entered. If an improper judgment was entered, I see nothing to estop the executors from setting it aside at law. A judgment against the executors would entitle the plaintiff to no priority, and this, at all events in equity and in a contest between creditors, cannot be regarded as any thing more. I do not understand it to be contended that the executors ought to be made personally liable.

*aqi *But even regarding it merely as a judgment against the executors, it is contended that it must have relation to the serving of the attachment on the garnishee, and bind his estate from that time. The Attachment Act, after providing for the issuing of the writ “to attach moneys, goods, chattels, debts and book of accounts, belonging to the absent debtor, in the hands of any person or persons whatsoever,” adds, “ and the attaching any part thereof in the name of the whole that is in such person’s hands, power or possession, shall secure and make the whole liable in law, to answer any judgment that shall be recovered and awarded upon that process.” The attaching of “ moneys” in the hands of the garnishee, has always been held to refer to a debt due by the garnishee to the absent debtor, and without this construction there is no provision in the Act for attaching such debt. But how are these moneys to be secured and made liable to answer the judgment? If there were in the hands of the garnishee any specific chattels of the absent debtor, such as a horse or a slave, or the evidences of debts due to him, such as bonds, notes, or books of account, they wo.uld be so bound that the garnishee could not, after service of the attachment, deliver them to the owner, or to any one else without making himself liable for the value. Or, perhaps the plaintiff might follow them in the hands of any one into whose possession they might afterwards come. If the garnishee should die, and these chattels should come into the possession of his executors, they would be compelled by the Court to deliver them up to the plaintiff in attachment who should afterwards recover a judgment. It is in this sense that the attachment is said to have a lien from the time of its being-levied. But these are things which are capable of being identified and distinguished. They constitute no part of the deceased garnishee’s estate, nor are liable to his creditors. But this creates no lien on the general estate of the garnishee, nor is the plaintiff in attachment ranked as a creditor of his, though he might become a creditor if the articles attached should not be forthcoming. But in the case of moneys in the garnishee’s hands, in consequence of a debt due by him to the absent debtor, how are these to be secured and made liable ? They are not capable of being identified. There is no specific money which you can direct the executors to pay over to the plaintiff. There is no general lien on the garnishee’s estate. I can conceive no other way in which these can be said to be bound, but this: that after the attachment *levied, the r.¡. garnishee is not at liberty to pay the debt to his creditor', or to L 40 any one authorized by him to receive it, and if he does so, he will still be liable to the plaintiff in attachment who shall afterwards recover a judgment. By the serving- of the attachment, the garnishee who owes the absent debtor, is made the debtor of the plaintiff who shall afterwards recover judgment, but he is not the judgment debtor, until judgment is actually entered against him.

It is ordered and decreed that the decree of the Chancellor be reversed, and the Master’s, report confirmed.

Johnson, J., concurred.  