DOMESTIC Attachment. This cause being removed by Certiorari from
the Common Pleas, now came before the Court on the following Case,
stated for their opinion:
'The term of September, in the Common
Pleas for the county of Philadelphia, in the year of our Lord 1782,
began on the 4th day of September, and on the 16th day of
September, in the same year, Judgment was entered in the Court
aforesaid, in an action then depending at the suit of the
Plaintiff, above named, against John Levinz, which action had been
brought to the term of June, in the same year. On the 5th day of
the same month of September, a Domestic Attachment issued out of
the same Court, at the suit of John M'Farland against the said John
Levinz, and was served on the lands of the Defendant on the same
day at 11 o'clock in the morning. No auditors were ever appointed,
nor any other proceedings had, under the said attachment, untill a
similar case was stated for the opinion of the Court of Common
Pleas for the county aforesaid, the 9th day of November, in the
year of our Lord
Page 1 U.S.
450, 451
1784.* At the time of rendering the Judgment aforesaid, the said
John Levinz was seized of the aforesaid lands in see, and so
continued untill the same were sold under the same Judgment, by the
said William Will, as Sheriff of the county, in whose hands the
money remains. 'The question submitted to the Court is, whether the
said Benjamin Hooton, or the said John M'Farland, is entitled to
receive the money from the Sheriff? The case was argued at the last
term, by Lewis, for the Plaintiff, and Ingersol, for the Defendant,
when two questions were made; 1st, Whether Hooton's Judgment
related to the first day of the term, so as to exclude the Domestic
Attachment, in his favor: And, 2ndly, Whether the Domestic
Attachment, for want of the regular continuances, was not out of
Court? Lewis contended, 1st, That the Act of Assembly, and English
statute, with respect to docketing Judgments, extend only in favour
of subsequent purchasors for a valuable consideration, 1 State Laws
463. 3 Black. Comm. 420. 14 Vin. tit. Judgment 616. Cro. G. Hetl.
72. S. C. under the Bankrupt Laws there is a relation to the time
of the act of bankruptcy; and yet the legal relation of a judgment
to the first day of the term, was held sufficient to defeat the
claim of the Commissioners. Sid. 271. Skin. 257. 2ndly, That from
the case stated, it does not appear that Auditors have been
appointed under the Domestic Attachment. This, however, is not so
material, as that there is no continuance of the cause. There is
not, indeed, any law which directs a Judgment in a Domestic
Attachment; but since on the report of the Auditors, the business
is to be settled, till that is done, is necessary to continue the
action; as in the cases of a writ of Partition, and an action of
account. See 1 State Laws 121. Ingersol, on the first point,
adverted to the opinion of the Court of Common Pleas, (see ant.
187) and urged that the Domestic Attachment Law, 1 State Laws 126.
was to be considered as applying to an insolvent debtor, the great
outlines of law with respect to a bankrupt. From the moment that
the attachment is in the hands of the Sheriff, the property ceases
to be the Defendant's, and must be disposed of agreably to the Act.
See Comb. 33. Skin. Under a commission of Bankrupts, which is thus
analogous to the Domestic Attachment, creditors are to be
considered as purchasors, and nothing can exclude a general
distribution, but an execution executed. See Co. Bank. Law.
Fictions, indeed, ought never to be allowed to work an injury; but
if the technical relation of a Judgment to the first day of the
term, were suffered in a case of this nature, all the expence and
trouble of a Domestic Attachment would be rendered oppressive and
nugatory.
Page 1 U.S.
450, 452
2nd. With respect to the second point, the Act of Assembly, as
to the appointment of auditors, is merely directory; and
continuances are matters of mere form, which may be entered at any
time; so that the Court will even presume it to have been done. 2
Har. C. P. 312. 1 Stra. 13.. 2 Barn. Not. 172. 1 Stra. 136. 1 Sid.
53.60 See 18 Vin. tit. Purchasor. Preced. in Chan. 478. Schlosser
vs. Lesher ant. 411.
Lewis, in reply, still urged, that the Acts for docketing
Judgments, and recording Deeds, were only made in favor of
purchasors; and although, generally speaking, every man who does
not take by descent, is called in law, a purchasor, he contended,
that the object of those acts was not of that general import, but
merely to secure persons who had paid an actual and immediate
consideration for the premises, and not to aid those who, by
process of law, were endeavouring to recover an antecedent debt,
which was the case in a domestic attachment. The attachment when
levied is binding between the parties; but it does not affect the
legal relation of a Judgment obtained by another person; and the
case cited from Co. B. L. is that of an execution taken out, but
not levied. See Prec. in Chan. 478.
With respect to the omission of continuances, he answered, that
if there was any thing to enter them from, and day has been given
to the Defendant from time to time, then the doctrine and
authorities of the adverse Counsel would apply. But, he insisted,
that where day was given to the Defendant, and, afterwards, nothing
was done in the cause, the continuances could not be arbitrarily
entered in the manner suggested by the Defendant's Counsel.
After consideration, The Chief Justice delivered the opinion of
the Court, in which he declared, that he and his brethren were
unanimously of opinion with the Plaintiff, on the case stated; and
directed Judgment to be entered accordingly.
Judgment for the Plaintiff.
Footnotes
[
Footnote *] See the case, ant. 187,
where, by an error of the Press, it is said to be a Foreign,
instead of a Domestic attachment. The opinion given in the court of
Common Pleas, was only upon the first point made by the Plaintiff's
counsel, (merely I believe, at the time of the argument) but no
judgment was regularly pronounced.
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