
    George P. Burrell, v. T. W. Letson.
    A plaintiff may file his suggestion, contesting the return of a garnishee, of course either at the term to which the writ is returnable, or at any time previous to, or during the next term; but if he fail to do so, it can be filed afterward, only upon leave of the Court, obtained on cause being shown.
    Money collected by and in the hands of the United States Marshal, is not liable to be seized by virtue of a writ of attachment.
    The Attachment Act means to declare liable to attachment only such property of the absent debtor, as is in fact, or in law, in the possession of the garnishee.
    One who has been constituted attorney in fact, to receive the money of an absent debtor, but refuses to do so, and under his power appoints another to receive it, may in his return to a writ of attachment, properly deny that he has any moneys, goods, &c., of the absent under.
    One appointed under a power of attorney, is the attorney of the principal, and not of the attorney who appointed him.
    Tried before Mr. Justice O’Neall, at Charleston, Spring Term, 1845.
    In this case Messrs. Petigru & Lesesne, and P. J. Porcher, had been served with copies of the writ of attachment, and had filed returns, denying, that they had any monies, goods, chattels, debts, books of account, lands, leasehold estates, and chattels real of the absent debtor, in their hands, power, or possession. Mr. Petigru moved, that the garnishees be discharged; Mr. Richardson opposed that motion, and presented the following order for the approbation of the Court. “On motion of Richardson & Rice, pi ai ntiif’s attorneys, ordered that the plain! iff have 1 cave until tb e next term, to file hi s suggest ion against the returns made and filed, in this case, by which the plaintiff will undertake to shew, that money belonging to the defendant has been received by one or more of the garnishees above named, or has been, since the service of the attachment, and before the making of the return, and before the return of the writ, in this case, in the power and within the control of the garnishees above named, or one oí' them.’-
    The defendant recovered a large sum of money against the Rail Road Company, in the Circuit, Court of the United States, which was eventually collected by the Marshal. At some period before, or after the collection of the money, the defendant constituted Mr. Petigru his attorney in fact, to receive the money; but in the power, gave him also power to appoint one or more attorneys under him. After the receipt of the power, but before he had in any way acted under it, Messrs. Petigru and Lesesne were served with copies of the writ of attachment. Mr. Petigru, alter this, and before the return of the attachment, constituted P. J. Porcher an attorney under him, and he received the money from the Marshal of the United States, as the attorney of Letson, and according to his direction, paid it away. After which he (P. J. Porcher) was served with a copy of the attachment. These facts were stated and conceded as the predicate of Mr. Richardson’s motion. The presiding Judge thought they did not make out a case, which could in law affect the returns of the garnishees. He therefore refused Mr. Richardson’s motion, and granted Mr. Petigru’s. The plaintiff appealed on the grounds,
    1st. That the plaintiff was entitled to his motion for leave to file his suggestion contesting the returns made, without setting forth in his motion, the specific grounds upon which the suggestion is to be framed.
    2d. That the grounds which were specifically set forth in the plaintiff’s motion, were sufficient to entitle him to such motion.
    3d. That it was not competent for the Court to decide, on motion, upon the merits of the case made for a suggestion.
    4th. That the discharge of the garnishees from the attachment, was premature, and not warranted under the circumstances of the case.
    Richardson, for the motion.
    A plaintiff, in attachment, has, until the second term, to file his suggestion, contesting the return of a garnishee of an absent debtor, and, by leave of the Court, a year and a day; 1 Hill, 213 and 229. Was the ground then sufficient to sustain the motion for leave to file? Is the plaintiff bound to set forth his grounds in a motion of this kind? It is not competent for the Court to look into the grounds, but the plaintiff is entitled to an issue before a jury. If bound to set forth his grounds, has he not set forth a sufficient ground? The attachment law is a remedial law. The onus of proof of nonacceptance of a power of attorney, is on the one denying it. The appointment of the sub-attorney, was an acceptance of the power and an act under it. The question then is, has an attorney a power over a fund of this kind sufficient to entitle one to attach it in his hands?
    Petigru, contra.
    
    Three questions are presented.
    1. Whether a person suing out a writ of foreign attachment, and not filing exceptions to the answer of the garnishee denying funds at the first term, does not admit the answer?
    
      2. Whether the lapse of a year and day from the return of the writ of attachment without a declaration, is not a discontinuance ?
    3. Whether by executing a mere power of appointment, a garnishee becomes liable to the attaching creditor for funds, that could not be reached by the attachment?
    1. The attachment act, P. L. 188, ought to decide this question. The answer of the garnishee is like the return of non est inventus. Till there is a seizure, the jurisdiction does not attach. The first question always is, whether the party is in Court. If a defendant does not appear at the first term, the default is irremediable. If the plaintiff admits the sufficiency of the return of the garnishees by not contesting it at the first term, the garnishee has no day in Court, and his return is final.
    2. The lapse of a year and day, is a discontinuance, by which the proceedings are abated. Smith v. Kennedy, 2 Bay, 411; 2 Sellon, 336.
    3. The person appointed received the money as the attorney of Letson, not of the garnishee. “The power is the act of the grantor, not of the attorney, who does it only in the name of the principal.” Bacon’s Ah. Lease R.
    “The execution of every thing that is done, has respect to the original act or cause executory, and when the execution is done, it has relation to the thing executory, and all makes but one act, though performed at different times.” Shelley’s case> 1 Co. 99 b.
    “Although estates which arise from the execution of powers owe their commencement to the deed of appointment, yet the appointee under a power does not derive his title from the appointer, or out of the estate whereof the appointer is seized, but comes in directly under the original conveyance, and the appointment opeiates by relation from the time when the original deed was executed, just as if the estate created by the appointment had been actually limited in the original conveyance.” 4 Cruise, 281; Tit. Deed, cap, 16, sec. 62.
    The money therefore, was never received by the garnishee, either actually or constructively.
    The exercise of the mere power of appointment would not make the garnishee liable, either in trespass or trover, even if the act done had been tortious.
    To maintain trover, possession in the defendant, or undertaking to dispose of the property, is necessary; for without one or the other there is no conversion. Bui. 33, Com. Dig. Trover D. Trespass would not lie against the garnishee. If it had been felony, the garnishee would not by any thing he has done, be liable as an accessory. It might be different in treason. There Voluntas pro facto reputabatur. To charge one in felony or trespass, there must be an unlawful act done by him, or by his command or procurement.
    The attorney did not act by the command of the garnishee, but of Letson, nor did the garnishee procure the act, though he procured the agent.
    Advising and consulting does not make an accessory. Foster 125; Rafael v. Verelst, 2 Wm. Rl., 1055.
    The garnishee did no more than if as attorney on record, being unwilling to incur the responsibility of receiving the money, he had moved at the request of his client for the substitution of an attorney in his place.
    
      But there can he no accessory where there is no tort. And there was no tort, because the money was not attached. If Letson had had money in London, the attachment in Charleston would have had just as much effect on it, as on this money. Letson had a perfect right to dispose of it. If the garnishee assisted him to dispose ol'it, by his advice or by finding an agent for him, he violated no duty and did no wrong.
    Letson might have assigned the fund, even to one of the garnishees, in trust, to pay the creditors that have been paid by his direction: and the trusts would have been good—trust money cannot be attached. Young v. Young, 2 Hill, 425; Doug. 370.
    To hold the garnishee liable on the ground of contract, is out of the question. The complaint is, that he transferred his agency. It was Ids duty to do so. An analogy is furnished by the doctrine of the assignment. An assignee may assign the lease, and after the assignment his liability for the rent is at end. Bui. 159, Taylor v. ¡Shum, 1 Bos. & P., 21; Bacon’s Ah. Covenant E.; Rowles v. Adams, 4 M. & Cr., 534.
    The attachment act proceeds on the jurisdiction of the Court, over the goods oí the absent debtor: the plaintiff’s motion is founded on the iaea of the jurisdiction of the Court over the agent who has the control of goods of the absent debtor in another country.
    Under the attachment act, the question is, whether the goods seized belong to the absent debtor.
    Upon this motion the question is, whether a person can be condemned as an accessory of the absent debtor, by assisting him in disposing of goods not attached, and doing an act which he had a perfect right to do.
    
      Oar attachment law differs in one thing from the custom of London. The custom is confined to citizens. The object is to enforce punctuality among them. Our act is confined to absentees, foreigners or not. The object is to get bail from foreigners and fugitives. In this respect it is like a capias utla-gatum. 1 Rich. K. B., 335; 1 Tidd, 135.
    But neither by capias utlagatum, nor by foreign attachment, by the common law, or by the custom, is any authority given for seizing trust funds, which is spoliation, or violating the duties of an agent, which is treachery.
   O’Neall J.

delivered the opinion of the Court.

In this case two questions are alone necessary tobe considered: 1st, was the plaintiff’s motion in time? 2d, were the grounds on which it was proposed to attack the garnishees return, sufficient in law to sustain the suggestion proposed to be filed?

1st. It seems that the writs of attachment were returnable to Obtober term, 1844; at that term, and until the next, (March, 1844,) the plaintiff might, of course, have filed his suggestion. But as that was not done, or to be done, during March term, 1845, if followed, it could only be filed according to Martin v. Parham, 1st Hill, 215, upon leave of the Court obtained, on cause being shown. This made the leave discretionary in a great degree, with the Judge below. The only limit to his discretion would be, that he should not exceed plain legal principles, in granting or refusing it.

2d. This brings us to the second question. The fund intended to be reached, was money recovered, in the U. S. Court, and not yet received. That it was not liable to the attachment, when Messrs. Petigru and Lcsesne were served with copies of the attachment, cannot be made plainer than is done in Burrell v. Letson, 2d Speers, 378. That being so, I think it follows that there was nothing attached, and hence the order made on the circuit was proper in that respect. For, according to settled principles, service of a copy writ on a garnishee, in attachment, constitutes a lien on all in his hands, which might legally be subjected to it. If therefore, the fund itself was not liable to the attachment, when the service was made, it could not be afterwards liable, unless it was clearly shewn, that between the lodgment and return of the writ, the fund was in some way so changed as to be answerable to it. In this case, I suppose it is thought, that when the Marsha! of the 17. S. collected the money from the defendant, and paid it to Mr. Porcher, it became in some way eondemnable to the plaintiff’s action, as in the hands of Mr. Petigru, the defendant’s attorney in fact, as it is alleged. There is no doubt, that when the money was in the hands of the Marshal, it was not attachable. For money collected by the sheriff of one of our own Courts, has been held not to be liable to be. seized by virtue of an' attachment. Blair v. Cantcy, 2d Speer’s, 34. But it has been argued, that inasmuch as Mr. Petigru received from the defendant a power oí attorney to receive the money, but did not choose to receive it, and constituted Mr. Porcher by tlie authority contained in the same power, the attorney of the defendant to receive the money, which he did, he (Mr. Petigru) is to be considered in law, as having the fund in his hands. The words of the attachment act authorizing the attaching, in the hands of a garnishee, direct the sheriff to “attach the monies, goods, chattels, debts, and books of account, belonging to the absent debtor, in the hands of any person or persons •whatsoever, and the attaching of any part, in the name of the whole that is in such person’s hands, power, or possession,” &c. Reading this clause and comparing both parts together, I should be very much inclined to say, that the words, “hands, power, or possession” aroused as of equivalent import; and that the words, “power or possession,” do not enlarge the meaning of the words, “in the hands.” They certainly mean to declare liable to the attachment, what is in fact or in law in the garnishee’s possession. In this sense, can Mr. Petigru be regarded as having the money of tlie defendant, in Ms hands, pc wer or possession? Certainly not! He might, if he would, have obtained the possession, but the exercise of his power to receive was necessary to bring the fund actually or legally into his possession. This he did not do. Mr. Porchcr’s receipt of the money cannot be considered as Mr. Petigru’s. For the maxim, qui facit per alium facit per se, does not apply between them. Mr. Porcher, though appointed by Mr. Petigru, was not his attorney, but the attorney of his principal, Mr. Letson, and it is between them that the maxim has its force and application.

It is therefore clear, that the money of Letson was not “in the hands” of the garnishee, Mr. Petigru, and that he and Mr. Lesesne were properly discharged.

The motion to reverse the order of the Court below, of the 19th of April, 1845, discharging the garnishees, Petigru & Lesesne, is dismissed.

Evans J., Wardlaw J., Frost J., Withers J., concurred.  