W. & D. Kyle & Co. v. Connelly

*W. & D. Kyle & Co. v. Connelly. May, 1832. (Absent Tucker, P.) Partnership — Attachment for Debt Not Due — Right of One Member- to Sue Out, — One member of a mercantile bouse to which a debt has been contracted but has not yet fallen due, is competent to make complaint on oath and to sue out an attachment against the debtor, under the provisions of the statute, 1 Hev. Code, ch. 123, § 14. Attachments — Oath—Objection for Want of — Waiver.— Tho’ the statute requires that such complaint shall be made on oath as the foundation of the process, it does, not require that the fact of the-complaint having been verified by oath shall be certified by the justices, and made part of the record: if. on the trial objection be made that the attachment was Issued without complaint verified by oath, the fact that the oath was administered maybe proved; If no objection be then made on that ground, it is too late to take such objection in an appellate court. Partnership -Attachment Sued Out by One Member of Firm — Bond—Validity,—As one member of a mercantile house to which a. debt has been contracted is competent to sue out an attachment for the house against the debtor, so that member is the proper person to execute the attachment bond required by the statute. Id. § 7. And the bond of the partner suing out the attachment, with surety, conditioned that that partner shall pay all costs, in case the house shall be cast in the suit, and all damages that shall be adjudged against him for suing out the attachment, is a good bond. Attachments —Value of Goods Attached Uncertain-Judgment.— How judgment shall be rendered for the plaintiffs upon an attachment for a debt contracted Rut not due..when the attachment has been laid on goods of the debtor, and on moneys due him in the hands of garnishees, where the value of the effects attached is uncertain, and may exceed the plaintiffs’ claim. Upon the complaint and at the instance of Hugh Campbell, one of the partners in the mercantile house of W. & D. Kyle & Co. two justices of the peace of the county of Amelia, issued an attachment against the goods and chattels of Daniel Connelly of that county, for a debt which had been contracted by him to that house but had not yet become payable, under the 14th section of the statute concerning attachments &c., 1 Rev. Code, ch. 123, pp. 478, 9. *The process, — reciting that H. Campbell, one of the partners of W. & D. K3'le & Co. had complained to the two justices, that Connelly was indebted to the house, in the sum of 1103 dollars, which would become due and payable at a future date, and that he had just cause to suspect, and verily believed, that Connelly would remove himself with his effects out of the commonwealth, before the debt would become pajrable, and also that he (Campbell) had no knowledge when the debt was contracted of the intention of Connelly so to remove, — therefore, required the sheriff to attach Connelly’s estate, or so much thereof as would be sufficient to satisfy the debt &c. and to make return of the process, and how he should have executed the same, to the county court, at its then next ensuing term. The process did not recite, nor did the justices in any way certify, that the complaint was made by Campbell on oath, nor did they 'return any affidavit of the truth of the complaint, as the foundation on which they granted the attachment. Before the attachment was issued, the justices took a bond of Campbell with approved surety, in the penalty of 2206 dollars, payable to Connelly, with condition in the following words: “The condition of the above obligation is such, that whereas the above bound H. Campbell, one of the firm of W. & D. K. & Co. hath this day obtained from A. T. T. and J. B. justices of the peace for the county of Amelia, an attachment against the estate of the above named D. *Connelly, for the sum of 1103 dollars, returnable to the next county court; if, therefore, the said H. Campbell, one of the partners of W. & D. K. & Co. shall satisfy all costs which shall be awarded to the said D. Connelly, in case the said H. Campbell, one of the partners of W. & D. K. Co. shall be cast in the said suit, and also all damages which shall be recovered against the said H. Campbell, one. of the partners of W. & D. K. & Co. for his suing out this attachment, then the foregoing obligation to be void, else to remain in full force and virtue.” This bond was duly returned by the justices to the county court. The sheriff made return upon the attachment, that he had attached a quantity of merchandize (specified in a schedule) belonging to Connelly, and sundry debts due to him from divers persons, in the hands of the debtors as • garnishees, whom he had summoned to attend the court, on the return day of the process. It no wise appeared what was the value of the merchandize attached ; it seemed to exceed the amount of the debt due W. & D. K. & Co. When the county court was proceeding to render judgment upon the attachment and the return thereupon made, James Robertson appeared as attorney at law for sundry other creditors of Connelly (who did not appear himself or offer any defence) claiming the effects attached, under a deed of trust, which he alleg'ed, had been executed by Connelly for the benefit of his clients, and had been duly recorded in the hustings court of Petersburg, but the deed was not produced; and, on their behalf, he moved the court to quash the attachment, and the attachment bond, or to dismiss the proceeding, on the ground, that the bond did not bind the whole firm of W. & D. K. & Co. but was executed by H. Campbell only, one of the partners of the house, in his individual name, and therefore did not conform with the requisitions of the statute, 1 Rev. Code, ch. 123, § 7, p. 477. This motion being overruled by the court, Robertson, *for his clients, filed a bill of exceptions to the opinion, in which he set out the attachment, the bond, the return of the sheriff, his motion to quash the process and the bond, and the judgment of the court overruling it. The court then proceeded to judgment on the attachment and return. The entry of the judgment was as follows: Hugh Campbell one of the firm of W. & D. Kyle & Co., having obtained an attachment in favor of the said W. & D. K. & Co. against the estate of Daniel Connelly, whom the said Campbell had just cause to suspect and verily believed was about to remove himself with his effects out of the commonwealth, for the sum of 1103 dollars due by single bill, on the-day of —■— next, to the said W. & D. K. & Co. This day came the said W. & D. K. & Co. by their attorney, and the said D. Connelly being solemnly called, and not appearing to re-plevy the said attached effects; therefore, it is considered by the court, that the plaintiffs recover against the said defendant., the said sum of 1103 dollars, together with their costs &c.” And it was ordered, that the sheriff should make sale of the merchandize attached, on a credit till the date when the debt to the plaintiffs should become payable, and should take bonds of the purchasers with good surety for the proceeds, and assign the same to the plaintiffs, to the amount of the. debt due them and their costs, and if the proceeds should exceed that amount, should assign the bonds for the surplus to the defendant, and return an account of his proceedings to the court. And it appearing, that there were debts due to the defendant, from the garnishees *who appeared according to the summons, to the amount of 332 dollars, the court ordered those garnishees to pay to the plaintiffs the several debts by them respectively due to the defendant, with a slay of execution against the garnishees till the date when the defendant’s debt to the plaintiff should become due and payable; and several of the garnishees who had been summoned, not having appeared, the proceeding was as to them continued till the ensuing term. To this judgment of the county court, the circuit court, upon a petition presented in the name of Connelly, awarded a super-sedeas, and afterwards reversed the judgment, and quashed the attachment, and all the proceedings upon it. And then W. & D. K. & Co. applied to this court, for a supersedeas to the judgment of the circuit court; which was allowed. The argument here, by Bacchus and Leigh for the plaintiffs in error, and Johnson for the defendant, turned on objections taken by the latter, to the regularity of the proceedings, and to the judgment of the county court. The counsel for the defendant in error, premised, that the statute which gives this summary remedy of attachment, — a new remedy contrary to the course of the common law, and one obviously liable to much abuse, — ought to be strictly pursued; Asberry v. Calloway, 1 Wash. 74; Stuart v. Hamilton, 2 Hen. & Munf. 48; Mantz v. Hendley, Id. 308. And then he insisted, 1. That, as the statute requires, that every complaint on which an attachment shall be issued, shall be made on oath, and as it no wise appeared that the complaint on which the process was issued in this case, was made on oath, the attachment was therefore irregularly issued, and ought for this cause alone to be quashed. 2. If it could fairly be presumed, that the complaint was made on oath, yet it was not the complaint of the creditor, but of one of several creditors; a complaint by Campbell one of the house of W. & IX K. & Co. to whom the debt *was due. Campbell could not have taken the oath required by the statute: the creditor praying the attachment, is required to make oath, that he had no knowledge, when the debt was contracted, of the intention of the debtor to remove himself with his etfects out of the commonwealth before the debt shall become payable. But, in this case, the house of W. & D. K. & Co. was the creditor: all the partners should have joined in the affidavit to the justice of the complaint: Campbell might, indeed, have made oath, that he had no knowledge of the debtor’s intention to remove, but he could not have known, and therefore could not with truth have deposed, that all his copartners were alike ignorant as himself, of that intention. 3. The attachment bond was naught. Though Campbell obtained the attachment, it was an attachment for W. & D. K. & Co. They were the plaintiffs. The costs would be adjudged to the defendant only in case they were cast; and they, not Campbell alone, would have been liable for damages at the suit of the defendant, for abuse of the process. But the bond bound Campbell and his surety to pay the costs, in case Campbell one of the partners in the house, not in case the house, should be cast, and to pay the damages which should be recovered against Campbell one of the partners, not such as should be recovered against the house, which was certainly liable to the action for damages. 4. The condemnation of the attached effects was excessive. The court ought to have directed the sheriff to sell only so much of the merchandize attached, as together with the debts due from the garnishees, would have satisfied the debt due the attaching creditors.. The counsel for the plaintiffs in error, maintained, that the proceedings, and the judgment of the county court, were perfectly right. And, in answer to the objections made to them, they said — 1. That though the statute required that the complaint should be made on oath, to justify the issuing of the attachment, it did not require, that the affidavit should be returned to court, or that the fact of the complaint *being made on oath, should be certified, and made part of the record ; and the objection came too late. Hawkins v. Gibson, 1 Leigh, 476. Had it been made at the trial in the county court, it might have been obviated by proof, that the complaint on which the attachment was issued, was in fact verified by oath. 2. One partner of a mercantile house to which a debt has been contracted, might sue out an attachment in such a case as this; and to hold that he could not, would be, in effect, to deprive such creditors of the benefit of the remedy. For aught that appeared in this case, Campbell may have been the partner with whom this debt was contracted; and if so, he was the proper person to depose, and the only person that could depose, that the creditor was ignorant, at the time the debt was contracted, of the debtor’s intention to remove. 3. Campbell had a right to sue out the attachment for the house: he, therefore, was the party from whom the attachment bond was to be taken. Tate’s Dig. Attachment, p. 3S, note (b), and the cases there cited, of Wilson & Co. v. Turpin, in the circuit court of Henrico. Twiss v. Massey, 1 Atk. 67; Pleasants v. Meng & aí., 1 Dali. 381; Sx parte Hodgkinson, Coop. Ch. Ca. 99; Sx parte Roberts, Id. 102. The bond bound Campbell and his surety to pay the costs, in case he should be cast in this proceeding for W. & D. K. & Co. They, being the plaintiffs, would be bound by the judgment for the costs, if they had been cast, without any bond. As to the damages, Campbell who resorted to this remedy, would alone have been liable for damages, if the process had been sued out without just cause; it was a wrong, and he was the wrong-doer: therefore, the bond properly bound him and his surety to answer for the damages resulting from such wrong. It would be found, on examination of the provisions of the 7th section of the statute, that the bond could not have been conformed with them, more literally and precisely. 4. The judgment of the county court was entered exactly according to the directions of the 14th section of the statute, which prescribes the judgment to be entered in such cases, and prescribes also the duty of the sheriff in executing the judgment, and in the directions to the sheriff, guards the debtor against any injury that may arise from the condemnation of all his effects attached for the debt, when part will suffice to satisfy it. Partnership. — See monographic note on “Partnership” appended to Scott v. Trent, 1 Wash. 77. Attachments - Bond — Validity.—The principal case is cited, on this qnestion, in Jones v. Anderson, 7 Leigh 312, 313, 315, and foot-note; McCluny v. Jackson, 6 Gratt. 103, 104. See monographic note on “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624; monographic note on "Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107. Same — Judgment.- The principal case is cited in Joseph v. Pyle, 2 W. Va. 453. See monographic note-on “Judgments” appended to Smith v. Charlton. 7 Gratt. 425. The 14th section, of the statute provides, that “whenever any creditor, whose claim amounts to ten dollars or 400 pounds of tobacco, shall have sufficient grounds to suspect, that his debtor will remove, with his effects, out of the commonwealth, before his debt will be payable, or whenever such debtor shall have so removed leaving effects, it shall be lawful for such creditor to go before any magistrate of the county or corporation where his debtor resides, or iu case such debtor has removed, where he last resided, or where his effects may be found, and make oath to the true amount of his debt, and that he has just cause to suspect, and verily believes, that such debtor will remove himself with his effects out of the commonwealth before the said debt will become payable, or hath actually so removed, and also that he had no knowledge, when the said debt was contracted, of the intention of such debtor so to remove; and thereupon, such magistrate, taking bond and security from such creditor as in other cases of attachments, shall issue an attachment against the goods and chattels of the debtor, returnable to the next court to be held for such county or corporation, which attachment may be served on any goods and chattels of such debtor, or any garnishee or garnishees.” The section then proceeds to prescribe the manner of proceeding on such attachments. — Note in Original Edition. The 7th section of the statute provides, "that every justice of the peace, before granting such attachment, shall take bond and security of the party for whom the same shall be issued, in double the sum to be attached, payable to the defendant, for paying and satisfying all costs which shall be awarded to the said defendant, in case the plaintiff suing out the attachment therein mentioned shall be cast in his suit, and also all damages which shall be recovered against the said plaintiff, for his suing out such attachment; which bond shall be by the said justice returned to the court to which the attachment is returnable: and the party entitled to such damages, may thereupon bring suit and recover: and every attachment issued without such bond taken, or where no bond shall be returned, is hereby declared illegal and void, and shall be dismissed.’’ — Note in Original Edition. [MAJORITY — CARR, J.,] CARR, J., delivered the opinion of court, That the judgment of the county court was right, and the judgment of the circuit court reversing it, wrong. We are bound, in the construction of every statute, to look at the mischief, and the remedy ; and so far as the words are not plain and peremptory, to consult the meaning of the legislature. The mischief here, was, that a debtor frequently absconded before his debt became due, and thereby defeated his creditor of the common law remedies. This statute enacts, that, in such case, the creditor may go before a justice, and make oath to the true amount of the debt and when it will become due, and that he believes the debtor is about to remove himself and his effects out of the commonwealth &c. and also that he had no knowledge when the debt was contracted, that the debtor had an intention so to remove ; and thereupon, the justice, taking bond and security from the creditor, as in other cases of attachment, shall issue an attachment against the goods &c. In this case, the attachment was issued, levied on goods and debts in the hands of garnishees, and returned to the county court. There an attorney appeared for certain persons-claiming to be creditors of the absconding debtor, and objected to the proceeding. The county court gave judgment, which was reversed by the circuit court on a supersedeas obtained in the name of the debtor. The first objection I shall notice, is, that it does not appear on the record, that any oath was made by the attaching creditor, before the justices who .issued the attachment. The answer is, that the law requires the oath to be made, and that thereupon the attachment shall issue; but does not require, that the affidavit shall be certified or returned by *the magistrate to the countj- court, or shall in any way appear -upon the record of the proceedings. If on the return of the attachment, it had been objected before the county court, that no oath had 'been made, the court would, no doubt, have required evidence of the fact: but no such objection having been taken then, it comes too late before this court. The next objection is, that the law requiring that the oath shall be made by the creditor, one partner of a mercantile firm cannot make it; because the wlfble firm (and not an individual member) constitute the creditor contemplated by the act: and this construction is the more relied on, as the remedy by attachment is a summary proceeding, and the law must be strictly followed. This is certainly true: but still it is the law, not the mere letter, that we must follow: we must not so construe it as to sacrifice the clear meaning to the words. The law says, “Whenever any creditor shall suspect his debtor is about removing” &c. he shall have this attachment. It certainly meant to give the remedy to all creditors alike, not to exclude anj’ class, especially the mercantile class, which, from the extent and multiplicity of their dealings, are the very persons standing most in need of this remedy. And yet the construction contended for, would, in most cases, where there was a firm, deprive them of this-remedy. We know that such firms consist of several partners, and, most frequently, that these persons reside at different places, sometimes far asunder; one managing-the concerns of the trade here, another in-New York, in France, in England, or elsewhere. In all such cases, the creditor would be cut off from the attachment given to all; for the different members could not unite in the oath. The object of the law, in requiring the oath of the creditor, was. to furnish to the magistrate, such evidence of the facts sworn to, as would justify the issuing the process. Is not this-evidence just as strong, when the facts are sworn to by a partner of the creditor firm, as if that same person were the sole creditor? A partner represents the firm: he can bind them *for thousands, or give an acquittance for any debt due to them: he may then be fairly called the creditor, and he swears to the debt, to the removal, or intended removal, of the debtor, and to his ignorance of such intention when the debt was contracted. Thus, I think the words and the reason of the law, are satisfied in this respect. It was then objected, that the bond was not a good one, because it did not bind the firm. If a partner was the creditor to make the oath, he was equally the creditor to give the bond; and if he gives a bond with good surety to pay all costs and damages, which may accrue from suing the attachment, it is all that a debtor has a right to ask; and such bond has been given here. To require that the bond should bind the whole firm, would (equally with requiring the oath to be made by all) cut off all mercantile houses, whose members are scattered abroad, from this remedy: for we know, that one partner cannot, by deed, bind the firm: and the individual partners could not be collected, to seal and deliver, each for himself. It has been decided too, in the cases cited at the bar, that a partner may in cases like this act for the iirm. These are the principal objections, and all which it is material to notice. The judgment of the circuit court is reversed, and that of the county court affirmed.