Ross v. Clarke

Ross v. Clarke. Foreign attachment. Money paid into the hands of the prothonotary, in satisfaction of a judgment, is not the subject of a foreign attachment, at the suit of the former defendant. Foreign Attachment. Clarke, the defendant in this case, had obtained judgment upon a scire facias against Ross, the plaintiff, as special bail of one Munro ; and a stay of proceedings was entered, until the ensuing term, when Ross was to pay the money recovered into court, if, before that time, the original debtor had not satisfied the debt. The stay being elapsed, Ross paid the money, but upon an apprehension that payment might have been made by Munro, though no accounts were received of it, he immediately issued this foreign attachment against Clarke, and laid it in the hands of the prothonotary. *On a rule to show cause why the writ should not be quashed, Moylan contended, that foreign attachments might be laid in any hands whatsoever ; that, in England, they issued out of an inferior court, and, therefore, could not call money from a superior jurisdiction ; but that this reason, which governed all the adverse cases determined thore, did not apply under the law or practice of Pennsylvania. Cox, in support of the rule, observed, that there are many instances where attachments would not lie, besides the one mentioned by his opponent. A debt due by recovery on record, cannot be attached ; nor goods levied in execution by fieri facias (Com. Dig. 424); nor property of a sovereign state (Nathan v. Virginia, ante, p. 77, in note). But he contended, that the mischief would be intolerable, if the effects of one suit could be thus drawn into perpetual litigation by another. [MAJORITY — By the Court.] By the Court. The money is to be considered in the same state, as if it had been paid into the hands of the sheriff. If a proceeding of this kind were allowed, there could be no end to suits. We are unanimously of opinion, that the foreign attachment has issued irregularly, and ought to be quashed. The rule made absolute, In McCarty v. Emlen, 2 Yeates 190, s. c. Dall. 277, it was held, that a debt in suit might be attached in the hands of the defendant in the suit. C. J. McKean, however, in the course of his opinion, recognised the case in the text, as one in which an attachment would not lie. So, the proceeds of an execution, in the hands of the sheriff, cannot be attached. Fritz v. Heller, 2 W. & S. 397; Taylor v. Hume, 4 Id. 407; Bentley v. Clegg, 1 Clark 411; & n Crossen v. McAllister, Id. 257.