
    Fitch and another against Ross and another.
    Monday, December 28.
    THIS was a foreign attachment brought in this Court to March Term, 1814, by Pelatiah Fitch and Rufus Bacchus against David Ross and Baptist Loire, in which two houses, the. property of Ross, were attached and the tenants summoned. No property belonging to Loire was attached. Qn the 30th April, 1816, judgment was obtained, and a writ of in-r ’ J 2. . , „ quiry returnable to December Term, 18.16, was executed, under which the damages were assessed for the plaintiff, in the sum of 12,715 dollars. On the 20th February, 1818, a fieri facias issued, returnable to March Term, which was levied on the two houses attached. On the 19th March,1818, a rule was granted to shew cause, why the execution should not be set aside, on which the proceedings were staid; and on the- 6th of the following July, a rule to shew cause, why the attachment should not be dissolved, was obtained, in support of which an affidavit was read, stating, that captain Ross had, on the 6th January. 1818, fallen overboard from . ' . - ’ ' • the brig Edward, or which he was master, while'on a from Rio de la Plata to Barcelona, and been lost. .
    it is not nein aa^|"tat' should, before ^ g*ve security the restoration of the fendant, with-^day should débT^íIe has until the sale,
    0f the defend-attachment^11 after final notdissolYe the at" tachment. plain-security to the representafendant, who*, andTday' may come inte proceed by ^faisprobandum puts the plain- and lets the tiveVof thede-
    
      Mahaney and Levy, in support of the rules, contended,
    1. That the fieri facias had issued irregularly,'because the plaintiffs had not previously given the security required by law, to restore the property attached, or its value, if within a year and a day the debt should be disproved. The 4th section of the act of 1705, indeed declares, that this security shall be given beiore sale, and alter execution is awarded ; but the practical construction of the law,-which must always have weight, has been, that the security shpúld be given before the execution actually issues. Prior to taking out execution, says Sergeant, in his Treatise on the Lato of ments in Pennsylvania, 21. 35, the plaintiff must enter into a stipulation to restore, &c. if the defendant disprove or avoid the debt within the year and a day. The attachment law of 17d5, is borrowed from the custom of London, MiClenachan v„ McCarty 
      
       and by the custom of London, security must be given before the award of execution, to which it is a condi* tion precedent. Serg. on Attach. 32. 195. Some period must be fixed, from which the year and a day are to run. According to the custom of London, they are computed from the titoe the execution is taken out. Leuknor v. Huntley .
      
       If the same rule prevail here, which is taken for granted by the counsel, arguendo, in Meyers v. Urichfi
      
       it supports the argument, that the stipulation must be entered into before the execution is issued.
    2. That the fieri facias was void, because it was in the common form, and directed the sheriff to levy on the goods, &c. of the defendant in general terms. It ought to have recited the proceedings under the attachment, and pursued them by an order to levy on the property attached. The execution must pursue the judgment. 3 Bl. Com, 412. Here the judgment was against the property attached, and the execution ought to have been so too. The plaintiff cannot have execution against the body, or against the defendant’s property in general. Serg. on Attach. 112. Yet in the present instance, he has taken out execution, not only against the general property, but against Loire also, none of whose property was attached, and against whom, therefore, there was no judgment.
    3. That the death of the defendant, before the payment of the money, 'dissolved the attachment. Much more than a year had elapsed since the judgment was obtained, before the death of Ross, and yet no execution issued until six weeks after his death ; nor was any refunding bond given. Much, therefore, remained to be done by the plaintiff to consummate his proceedings. Shall he then be permitted to avail himself of the death of the defendant, to recover a large sum of money without controversy, and without giving the defendant’s representatives an opportunity of being heard ? for this is the result, if the plaintiff succeeds. The object of a foreign attachment is twofold. 1st. To compel an appearance. 2d. If the defendant holds out, to give to the plaintiff the property attached, which, however, is very reluctantly done. When an appearance is effected, it proceeds like other suits. It is, therefore, very partially a proceeding in rem,• and after an appearance it ceases to be so altogether, and becomes a proceeding in personam. It may be dissolved by the entry of special bail; the debt may be disputed within a year and a day after the sale of the property, and after verdiet, judgment, and execution against the garnishee, the defendant may dissolve the attachment by the entry of bail, provided the money be not paid. The defendant has as long as he pleases to enter bail, provided he does it before that period. Lex neminem cogit ad impossibilia. Hoes is dead. Will the Court permit steps to be taken, to compel an appearance, which a Superior Power has rendered impossible ? In Ludlow v. Bingham,
      
       the counsel in argument state, that the death of the defendant, after interlocutory judgment, will abate the attachment, and in a note a quere is put as to the effect of death after final judgment, but before the payment of the money. In personal suits at common law, death, pendente lite, always abated the suit; and even in partition, until 8 & 9 Wm. III. ch. 31, if one of several defendants died, the writ abated, and so was the law of domestic attachments until 1807. This, therefore, is not entirely a proceeding in rem. It differs altogether from an admiralty proceeding in case of prize. In proceedings in rem, the proceeding is exclusively against the res to determine to whom the property belongs; the only question is, to whom does the res belong. (This Mr. Binney denied, and cited the following cases. % Browne’s Admiralty Law, 396, 397, 398. 406. relating to proceedings against the ship for seamen’s wages; and said, that with respect to most proceedings in rem, they are not to inquire to whom the property belongs, but to enforce orders of the Court, &c.) The proceedings for seamen’s wages are not purely in rem. Nor is it denied, that a foreign attachment is partially so; but it only possesses that character where special bail is not entered, and the res is appropriated. In replevin, detinue, and all the common law remedies for a specific thing, the suit is abated by death. The same rule prevails in regard to sequestrations out of chancery, and outlawries. Sequestration is in the nature either of mesne process or of execution. Where it is in the nature of mesne process it determines by the death of the party; but if in the nature of execution, the death of the party does not determine it. 6 Bac. Ab. 126. Sequestration, A. Id. 127. Id. 134. D. Burdett v. Rockey.
      
       Bligh v. Earl of Darnley. In outlawry in civil cases, the king’s pernancy of the profits ceases on the death of the defendant} and there is no difference between outlawry before and after judgment. 5 Bac. Ab. 224.. Outlawry, D. Smarte v. Edsun.
      
       Matthews v. Erbo. The common law rule that suits abate by the death of the defendant applies with peculiar force to cases of foreign attachment. Here the attachment was solely against the goods of one of two defendants. If Ross had entered special bail he would have relieved the property attached. He was guilty of no laches. Laches is the failure to do a thing within the time allowed by law. Ross had until the payment of the money to enter special bail, and before the time had expired he was prevented by an event over which he had no controul. . The permission to the defendant to come in is not a privilege, but a mere act of justice. If he had been living, he might have controverted the plaintiff’s claim, and his death, which he could not prevent, ought not to put the plaintiff in a better situation, for it is greatly to be doubted, whether the defendants’ executor could controvert the debt within a year and a day. The bond would, therefore, be of no use. The opposite argument derives no support from the case of bail, where, if the principal dies after the return of non est inventus the bail is fixed, because a surrender after non est inventus is a mere matter of curtesy and against strict law.
    
      Binney against the rules.
    The fieri facias issued in this case, is contended to be erroneous in the first place, because no security was previously given. Our only guide on this subject is the act of assembly of 1705, which does not require security to be given before execution is issued, but before sale and. after execution is awarded. The words are plain, and there is no decision of this Court giving them a construction different from that which they naturally bear. This security was provided for the benefit of the defendant, and the later it is given, the more it is for his advantage, because he has a year and a day to come in and disprove the debt, from the date of the bond. In its general features the attachment law resembles the custom of London, but in practice it departs from it in some respects. By the custom, security is given before execution is awarded; by our act of assembly, by express words, after. Sergeant (21. 35.) refers to no authority but the act of assembly, and that authorises the bond to be taken at any time before sale.
    2. ' The second objection is one of mere form. The fieri facias was in the form used in our Courts without exception : i and if wrong, the Court would amend it. It was regularly executed, and if it had been levied on property which had not been attached, the Court would have given relief. There is no such thing as a special feri facias for the property attached, nor is there any authority in counsel or prothonotaries to mould special writs.
    3. If this were a common law judgment, the death of the defendant would not affect the' execution, for it was tested before his death, and it is perfectly clear, that an execution may be taken out against the property of the dead, provided the teste be before the death. If a defendant die in vacation, an execution may be taken out, returnable to the next Term, if it bear teste prior to his death. Oades v. Woodxvard.
      
       10 Vin. 570. Execution, pl. 9. Finch v. Earl of Winchelsea.
    
    It is objected too, that the judgment is irregular, because it is against both defendants, when the property of one only, was attached. The answer is, that the judgment was properly against neither. The judgment was, that the plaintiff should have execution against the property attached, not that he should recover the money of the defendants. By the custom of London there is no judgment; but after four defaults, the garnishees are summoned, who plead nil debent, and the issue being found against them, to ascertain the amount in money, there is an award of execution against the money in their hands. Serg. on Attach. 239. Appx. The attachment is not to bring the party into Court; the object of it is to give the party execution against the thing attached. He has no day in Court. It is a proceeding in rem and not in personam. Serg. 110. And so it is declared in Phelps v. Holier,
      
       and in Kilburnv. Woodworth,
      
       in both of which it was decided, that an action would not lie on a judgment in foreign attachment. The authorities all shew it to be a proceeding in rem, making no person whatever liable, and extending only to the things attached. If so, how can the death of the defendant affect the thing, or the proceeding upon it ? There is nothing to support the idea, that death after interlocutory judgment abates the attachment, but an ar&'ument attributed to counsel in Ludlow v. Bingham. This, however, must be incorrectly reported, for the eminent counsel to whom it is ascribed, knew that in a foreign attachment, there is never a party in Court, which he is supposed to make the basis, of the argument. The case of sequestration in chancery, and outlawry in the courts of common law, arte totally different from foreign attachments. They are altogether proceedings in personam, against a party in contempt; and death purges all contempts. There are, however, some sequestrations in the nature of execution, and these are not determined by death. 1 Fern. 58. The admiralty courts are the tribunals in which the proceedings are in rem, and no instance can be shewn in which, after decree, the death of the party destroyed the proceeding in rem. The object of the attachment law, is not, as the opposite argument supposes, to compel an appearance, but to make the property of absentees liable for their debts. To dissolve the attachment is the privilege of the defendant, and he must use it consistently with the plaintiff’s security. The object in entering special bail is to discharge the garnishee; when there is no garnishee, there is no bail. It is said, that death is equivalent to special bail; but the argument in fact goes much further, and makes it equivalent to special bail and an exoneretur. It places absentees on much better ground than those who are present; for if a fieri facias be issued against one who is present, and he dies, it is good ; but if against an absentee, who dies after the sheriff has levied, the levy is gone. This could never have been the intention of the act of assembly. The defendant might have dissolved the attachment by the entry of special bail. This he neglected to do until it became impossible, and the plaintiff ought not to be injured by his laches. At common law, special bail has until the return of the scire facias against him, to surrender his principal, but if the principal die, after the return oí non est inventus, to a capias ad satisfaciendum against the defendant, the bail is fixed.
    
      
       1 Pall S77,
      
    
    
      
      
        Cro, El. 713.
      
    
    
      
       1 JBinn. 25.
      
    
    
      
       4 Dali. 60.
    
    
      
       1 Vem. 58.
      
    
    
      
       2 P. Wms. 62Í.
    
    
      
       2 Lev. SO.
    
    
      
      
        Carth. 459.
    
    
      
       2 Ld. Raym. 849.
    
    
      
      
         3 P. Wms. 399. note.
      
    
    
      
      
         I Pall. 264.
    
    
      
       5 Johns. 37.
      
    
   Duncan J.

If the action is not abated or dissolved by the death pf the defendant, the proceedings on it are regular. An execution, tested as of a term when the defendant was alive, may be taken out and executed after his death. To make a scire facias necessary, the process must appear on its face, to have issued after the death of the party. Whatever may be the practice under the custom of London, as to giving security * 4 *i '*■* * to restore the goods and effects, if the debt be disproved, before execution be taken'out, a different practice has prevailed here, justified by the act regulating proceedings" on foreign attachments ; “ after judgment dbtained, the plaintiff shall, before sale, and after execution awarded, find security.” He has all the time before-sale, and after execution awarded, by the plain letter of the law. But the question, whether after a final judgment against the defendant in attachment, his death ipso facto dissolves it, is of more difficulty. Although this case must have often occurred; yet the objection is .not known to have been made in any authenticated case in Pennsylvania. The research of counsel has not been able to find it even to have been made in England. It is a question, new in species. The proceedings under our attachment law, may have their origin in the custom of London, but the remedy itself, is not to be extended or limited by rules established under, the custom, where such rules are broader or narrower than the laws of this state. Fisher v. Consequa, in the Circuit Court of the United States, Sergt. on Attach. 47. Nor does the course of proceeding conform to the custom; there, process issues against the original debtor on which nihil is returned, and his default recorded, on which there is a surmise, that there is another man within the city indebted to the defendant, and the scire facias issues against .such debtor, as the garnishee. Here the first process is to attach the defendant, by his goods and chattels, in whose hands soever they may be found. On the return “ attached,” at the third term judgment is entered. The action was indebitatus assumpsit,' judgment entered the third term, writ of inquiry, and judgment final.

Lands are the subject of foreign attachment in Pennsylvania, in which there can be no garnishee, and therefore the practice has been, on the judgment against the defendant, to issue execution, with directions to the sheriff to levy on the lands attached. If these proceedings were in all respects in rem, they would not abate by the death of the defendant. For some purposes they are to be so considered; for execution can only be against the goods attached, and not against the person of the defendant; but to every purpose they are not; for by entering special bail, the attachment is dissolved, and it then, becomes a mere personal action.

Foreign attachment is a peculiar process to compel the appearance of the non-resident debtor, by distress and sale of the property attached, giving him full time to appear, even after judgment and execution, and contest the demand and even disprove the debt, within a year and a day after security given, without entering special bail. The declared object of the act, was to prevent non-residents from withdrawing their effects from the State, leaving their debts unpaid. This object would be defeated, if, after the plaintiff has run the tedious course of the law, and when he is about to reap the benefits of his pursuit, the death of the defendant dissolved all j and his representatives, too, would be at liberty to withdraw from the State, the effects which had been condemned to pay the judgment against him.

By the entry of special bail, the object of the law is attained. It gives the plaintiff security, by the body, the highest security known to the law. But if death dissolves the attachment, the plaintiff is deprived of all security, either of body or goods. If special bail is entered, and the defendant die pending the action, under an act of assembly, his representatives may be brought into Court in that action ; the action does not finally abate. If lands are attached, and final judgment obtained, it could not be, that by the defendant’s death, the judgment becomes extinct, and the plaintiff come in for distribution only, as a simple contract creditor.

If death would take away the lien, bankruptcy would. But in bankruptcy it is considered, that the attachment creditor, when execution is executed, still retains his lien. See the Bankrupt Law of the United States. That act takes away the lien by attachment under any law of the individual states, except where the execution is executed. A foreign attachment on the custom of the Mayor’s Court, is not dissolved by the bankruptcy of the defendant, unless the act of bankruptcy over-reach the attachment. This may be clearly inferred from the case of Barker v. Goodair, 11 Ves. jr. 78. By the certificate of bankruptcy, the body is as much relieved from arrest as by death. A foreign attachment would not be dissolved on the application of assignees, praying that an qxoneretur might be entered; nor could special bail be taken from a man who could not be surrendered, or if surrendered, would, en production of his certificate, be discharged from imprisonment. Until special bail is entered, the lien continúes.. This question must arise under the arbitration systern. There the entry of the award by the prothonotary, has the effect of a judgment; but the law gives the defendant dissatisfied, the right of appeal within twenty days, on making oath or affirmation, that the appeal is not entered for delay, &c. and giving special bail. If the party dies within the twenty days, does, the award and the judgment die with him ? For the same reason would hold in that case as in this ; the impossibility of giving special bail. What have the Court decided in actions against executors or administrators, or against corporations ? That they may appeal without entering special bail. In the case which I have put, I apprehend the Courts would suffer the executor or administrator of the deceased defendant, who died within the twenty days, to make themselves parties to the suit within that time, and enter the appeal without giving special bail.

The right to dissolve the attachment depends on the condition of entering special bail. It is said, that having time until after the sale, to enter special bail, the act of God, which injures no man, depriving the party of the benefit of this condition, dispenses with the condition and extinguishes the attachment. But this would injure the plaintiff. It then becomes the duty of the Court, by an equitable construction of the act, to do justice to all, by directing security to be given to the representatives of the deceased. Then a year and a day is given them, to come into Court and proceed by writ of scire facias ad disprobandum debitum, which, like- putting in bail, puts the plaintiff to the legal proof of the demand, and lets the defendant into a full defence ; for this is the substantial operation of the security. M‘Clenachan v. M'Carty, 1 Dall. 378. If the Court did not think they were justified in this construction, they would have entertained a very different opinion from that which they have formed; because it would be against every principle of justice and of law, to deprive the representatives of the defendant of all opportunity of contesting the plaintiff’s claim ; but on the scire facias every opportunity is given them of a hearing, and of a full defence, as if the defendants had entered special bail. The Court are of opinion, that the death of the defendant in a foreign attachment, after final judgment, does not abate or dissolve the attachment. The rule must, therefore, be discharged.

Rule discharged.  