author: Per Curiam.

text:
    Stewart et al. versus Bedell.
    1. The defendant sold his store and good-will to the plaintiff, and covenanted not. to carry on the same business within a specified district and time; if he should, “he shall and will pay (to plaintiff) the sum of $10,000_as liquidated damages.” Held not alternative covenants, the latter being merely the agreed consequence of the breach of the former.
    2. If covenants be alternative and either be performed there is no breach ; an election is given to perform either.
    3. In this case the former covenant being broken a breach must be shown to resort to the secondary for damages.
    4. The defendant pleaded “ covenants performedthis applied only to the breach of the first covenant not to engage in business; and the burden of proof is on the plaintiff.
    5. “ Absque hoc” applies to those covenants of plaintiff which he must prove as preliminary to a recovery.
    October 15th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.

      Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 222.
    This was an action of covenant, brought April 26th 1872, by D. B. Stewart and E. S. Cook against J. C. Bedell.
    The declaration was, that the defendant had been engaged in selling, &c., dry goods, groceries, &c., at Mansfield, in Scott township, Allegheny county, and on the 27th of February 1871, entered into an agreement under his seal, by which for a valuable consideration he sold to the plaintiffs the goods, &c., “together with the fixtures, apparatus, good-will, trade, &c., of his said business,” ■and that he did bysaid agreement for a valuable consideration covenant with the plaintiffs, that he would not directly or indirectly, as proprietor,.clerk, or employee, engage in the business of selling groceries, dry goods, &c., in the townships of Scott, Robinson, &c., for a period of seven years from the date of the agreement, and if he, within that period and within the districts named, should engage, &c., in said business, he should pay the plaintiffs “ten thousand dollars as liquidated damages.” The plaintiffs averred:—
    “That because the abstaining of doing the aforesaid acts and things could not and can not be measured by an exact pecuniary standard, the said sum of ten thousand dollars was agreed upon by defendant as a stipulated sum, which he should pay to plaintiffs for a violation of said covenant, in doing or attempting to do any of the acts and things in said covenant prohibited.” He further averred that the defendant had, within the districts and the time mentioned in the agreement, in violation of his covenant, engaged in the business of selling, &e., groceries, dry goods, &c.; and concluded : “ Wherefore the plaintiffs, showing that they have well and faithfully kept and performed their covenants, entered into with the defendant, say that the defendant hath broken his covenant so with them entered into, and by reason thereof hath become liable to pay to them the said sum of money with interest, costs and damages, in the sum of twenty thousand dollars.”
    The defendant pleaded, “ covenants performed.”
    On the trial, January 20th 1875, before Kirkpatrick, J., the plaintiffs read the agreement. The covenant, the breach of which was charged in the declaration, was as follows: — ■
    “ It is further covenanted, promised and agreed by the party of the first part, in consideration of the premises and of other valuable considerations him moving thereto, to and with the said parties of the second part, that he the said party of the first part will not engage or undertake, either directly or indirectly as proprietor, clerk or employee, to engage in the business of selling, retailing or vending groceries, dry goods, hardware, notions, &c., &e., in the townships of Scott, Robinson, Chartiers and Union, in the county aforesaid, for a period of seven years. And if the said party of the first part should within the period aforesaid engage or undertake to engage as aforesaid, in the business as aforesaid, in the townships aforesaid, he shall and will pay to the parties of the second part, their heirs, executors, administrators or assigns, the sum of ten thousand dollars as liquidated damages: Provided, however, that if the said parties of the second part shall within the period aforesaid retire from the business aforesaid for the period of six months, then the said party of the first part shall no longer be bound by this last-mentioned covenant, but be fully released therefrom.”
    They then read the declaration and pleas, and rested.-
    The court, on motion of defendant, directed a nonsuit with leave to move the court in banc to take it off. The motion was overruled by the court in banc.
    The plaintiffs removed the record to the Supreme Court by writ of error, and assigned for error the entry of the nonsuit and the refusal to take it off.

      C. B. M. Smith (with whom were S. M. Raymond and Sampton Dalzell), for plaintiffs in error.
    The plea of covenants performed is an affirmative plea: F. & M. Turnpike Co. v. McCullough, 1 Casey 303. Where some covenants are in the affirmative and some in the negative, a plea of the performance of all is bad: 5 Bac. Abr. 410; Crosswell v. Peachy, Croke’s Eliz. 691; Ellis v. Box, Aleyn 72; Heister v. Evans, 3 Dyer 372, pl. 11. If any of the covenants are in the disjunctive, defendant must show which he has performed: 2 Stephen’s Nisi Prius 1164; 1 Selwyn’s Nisi Prius 547; 6 Comyn’s Digest 129; Stephens on Pleading 365, 366; Laughwell v. Palmer, 1 Sid. 87, quoted in Selwyn’s Nisi Prius 1164. Covenants for non-performance and others for performance ; party should plead to the one — that he has not done; to the other — that he has done generally ; and if the negative ones are against him, he may say generally that he has done all: Norton v. Syms, Sir F. Moore 856 ; Rangler v. Morton, 4 Watts 265. By his plea, defendant took on himself the affirmative of the case and the burden of proof was on him: Norris v. The P. & D. Insurance Co. of N. A., 3 Yeates 84 ; 2 Greenl. Evid., sec. 247 ; Scott v. Hull, 8 Conn. 296 ; Soward v. Leggatt, 7 C. & P. 613 ; Harrison v. Park, 1 J. J. Marshall 172 ; Marston v. Hobbs, 2 Mass. 438; Snevily v. Egle, 1 W. & S. 480; Barnett v. Cratcher, 3 Bibb. 202. “ It is an invariable rule in pleading that whatever is alleged by one party and not denied by the other is admitted: ” Roth v. Miller, 15 S. & R. 100; Martin v. Hammon, 8 Barr 270; Wilkinson v. Pittsburg, F. & M. T. Co., 6 Barr 398; Smith v. Frasier, 3 P. F. Smith 226; Zents v. Legnard, 20 Id. 192.

      T. M. Marshall (with whom were M. W. Acheson and O. W.

      Bobb)] for defendant in error.
    In Pennsylvania, the plea of performance, in an action of covenant, is a plea in the nature of the general 'issue: Troubat & Haly’s Pr. 32, 33. The plaintiffs, having gone to trial upon the pleadings, could not allege that the plea of “ covenants performed,” was a nullity : Brubaker v. Taylor, 26 P. F. Smith 83. The plea of “ covenants performed,” was proper: Neave v. Jenkins, 2 Yeates 107. The defence in this case was not an equitable one, and, therefore, the plea of covenants performed did not put the onus upon him, but made it incumbent on the plaintiffs to prove all the material allegations in his declaration, except the execution of the agreement: Evans v. Dravo, 12 Harris 64. The plea of “ covenants performed,” absque hoe, would have put the onus upon the plaintiffs. Yet the addition of absque hoe would merely have put in issue performance by the "plaintiffs : 2 Troubat & Haly 33; Martin v. Hammon, 8 Barr 270; Zents v. Legnard, 20 P. F. Smith 192; 1 Greenl. Evid., § 51.
   Judgment was entered in the Supreme Court, October 25th 1875,

Per Curiam.

The defendant’s covenant not to engage in busi-" ness within prescribed limits, and the covenant, if he should do so, that he would pay $10,000 liquidated damages, are not alternative; the latter being merely the agreed consequence of a breach of the former. If covenants be alternative and either be performed there is no breach. An election is given to the covenantor to perform either. But here a breach of the former covenant is necessary to give effect to the latter. Hence there is no election in such case, except that which arises from a determination to suffer the consequence of a breach. Here them the former covenant is broken, and its breach must be shown to entitle the plaintiff to resort to the secondary covenant to pay the damages. Hence the plea of “ covenants performed” applied only to the breach alleged in the declaration, to wit, of the covenant not to engage in business. Here the affirmative plea is pregnant with a negative, and casts the proof of the breach on the plaintiff. The words absque hoe, when added to the plea of covenants performed, apply to those covenants of the plaintiff which he must prove as a preliminary to a recovery. We discover no error in the record.

Judgment affirmed.


source: Caselaw Access Project

author: Chief Justice Agnew

license: Public Domain

text:
    Berger et ux. versus Clark.
    ■ 1. The proviso in the 6th sect, of the Act of April 11th 1848 (Married Women), is not intended to enlarge her power to contract debts.
    2. The clauses of the act relating to debts for which she may be liable are to be so construed as to limit them strictly to the purpose of protection, and not so as to expand her contract capacity or liability.
    3. In an action against a wife for necessaries both the pleadings and evidence must make out a case of liability under the 8th section of the Act of 1848.
    4. The pleadings must set out a debt contracted by the wife and that it was for articles necessary for the support of the family of the husband and wife.
    5. A joint contract of husband and wife is insufficient to charge her separate estate.
    6. The husband must be held jointly with the wife, because no action will lie against her even for necessaries for their family without joining him, as his estate is primarily liable to execution.
    7. The wife’s estate is not liable until an execution against the husband shall have been returned “ nulla bona.’'

    8. The declaration in this case set out a joint contract of husband and wife ; Held, that there could be no recovery under it.
    9. To bind a wife the contract must be on her own behalf, not as acting for her husband.
    10. When the wife takes up necessaries for the family of her husband and herself, the primary presumption is that she is acting as his messenger or agent; the primary duty of furnishing necessaries being on him.
    11. The evidence must overcome the presumption and show that the wife is acting in her own right, in order to bind her separate estate.
    12. A wife cannot be made liable for'necessaries by subsequent declarar tions alone, without primary evidence tending to raise a presumption to bind her separate estate; subsequent declarations may be corroborative.
    ■ 13. A subsequent promise to pay for necessaries procured by the husband, for which he alone is liable, is not within the intention of the law ; it would be but a promise to pay the debt of another, and therefore nudum pactum,,

    14. The essence of her liability under the act for necessaries is that the creditor furnishes them on her credit.
    October 15th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 190.
    This was an action of assumpsit, commenced September 22d 1874, by PI. H. Clark and Michael Berger and Maria Berger, his wife.
    The declaration was :—
    “Michael Berger and Maria Berger, his wife, of said county, were summoned to answer H. H. Clark, M. D., of a plea of trespass on the case, whereupon the said plaintiff, by John Barton, his attorney, complains, for that whereas the defendants on the 17th day of September, in the year of our Lord 1874, * * * were indebted to the said plaintiff in the sum of $500, for the price and value of goods then and there sold and delivered by the plaintiff to the defendants, at their request. And in the sum of $500 for the price and value of work then and there done, and materials provided for the same by the plaintiff for the defendants, at their request. And in the sum of $500 for money then and there lent by the plaintiff to the defendants, at their request. And in the sum of $500 for money found to be due from the defendants to the plaintiff, on an account then and there stated between them. And in the further sum of $500 for services rendered by said plaintiff, as a physician and surgeon, to a minor son of the said defendants, at the special instance and request of the said Maria Berger above named, &c. And, whereas, the defendants * * * in consideration of the premises, respectively, then and there promised to pay the said several sums of money, respectively, to the plaintiff on request,” &c.
    ’ -The plea was non-assumpsit, &c. Mrs. Berger also pleaded her coverture.
    The question in the case was as to the liability of the separate estate of the wife under the declaration, and the evidence, for the medical attendance of the plaintiff upon the son of the defendants.
    The case was tried May 5th 1875, before Kirkpatrick, J.
    The plaintiff testified himself, and gave evidence by several witnesses of the services for which he' claimed to be paid, and the circumstances under which they were rendered. The services commenced in August 1869 and ended May 16th 1870. He had been called into the house by the father to examine the arm of their son which was broken or otherwise injured ; the son came to the plaintiff’s office, sometimes with his mother and sometimes by himself; most of his conversation was with Mrs. Berger, but he never had any contract with her. Upon the occasion when he was called by the father to look at the boy’s arm, the father said he thought the boy would get well without anything being done to the arm ; she said something must be done with it.
    Under objection by the defendants and exception, the court admitted the testimony of Samuel Oabert for the plaintiff, viz.:—
    Q. Did or did not Mrs. Berger ever make any statements to you about laying out a plan of lots, and commencing to make sales for the purpose of paying Dr. Clark his bill, or words to that effect and meaning ? The time is supposed to have been August 1874?
    ■ A. She stated, when we had that conversation — she said that she intended to pay Dr. Clark whenever she has the money ; that is all'what I know about it.
    Q. Was there anything said about laying out lots ?
    A: Well, it was spoken about them lots at that time, but there was none sold, so far as I know; there was no money coming in.
    Q. Now, the date of this conversation ?
    A. I cannot remember that. It was some time last summer.

      On cross-examination:—
    Q. You say she just said she wanted to get some money to pay Dr. Clark?
    A. She said that whenever she got some money she would pay it.
    Q. Where did she say this ?
    A. It was in her saloon where she lived, at East Liberty.
    Q. That was along last summer ?
    A. Yes, sir.
    Q. Was Michael Berger present?
    A. No, sir, not that I know of.
    Also of Mrs. Catharine Clark, the wife of the plaintiff:—
    Q. Did you ever hear her say anything about paying the doctor ?
    A. The last time she was in the office, she had her son with her.; I don’t know what his ailment was then. I could not give you the day of the month or the day of the year. It was when they were grading Penn avenue. It is between four and five years. She was going out, and the doctor said, I have done so much for your family, it is time you would pay me now; I don’t want to sue you, and she said, I pay you, you lose not one cent. That is all I heard her say.
    On cross-examination:—
    Q. That was after the doctor had prescribed for the boy ?
    A. I don’t know what he had done.
    Q. As they were leaving, the doctor made this remark to her ?
    A. Yes, sir.
    Q. You never saw them there since ?
    A. No, sir.
    Q. You don’t know that the doctor has performed any service since ?
    A. Nó, he did not perform any services since.
    The verdict was for the plaintiff for $200.
    The defendant, Mrs. Berger, moved in arrest of judgment, for the following reasons:—
    1. Under the declaration in the case, the plaintiff is not entitled to judgment against her.
    2. There is no evidence in the cause sufficient to sustain a judgment as against her.
    The court overruled the motion and entered judgment on the verdict.
    The defendants took a writ of error and assigned for error :—
    1, 2. The admission of the evidence objected to.
    3. Not arresting the judgment for the first reason assigned in the motion.
    3. Not arresting the judgment for the second reason assigned.

      A. Blahely, for plaintiffs in error.
    Under the Act of April 11th 1848, sect. 8, Pamph. L. 536, 2 Br. Purd. 1006, pi. 8, a married woman’s estate cannot be charged for necessaries unless contracted for by her and furnished under the contract. She cannot bind her estate by an agreement, after the services are rendered. The declaration should have averred that the debt was for necessaries: Murray v. Keyes, 11 Casey 384; Parke v. Kleeber, 1 Wright 251.

      J. Barton, for defendant in error,
    Had the objection been made to the declaration in the proper time it might have been amended; the Supreme Court will consider it as if amended: Barnhill v. High, 3 P. F. Smith 136. Services rendered by a physician are necessaries: Reed’s Estate, 4 Phila. R. 375; Parke v. Kleeber, supra.

   Chief Justice Agnew

delivered the opinion of the court, January 6th 18-76.

It has been the endeavor of this court so to construe the Married Woman’s Act of 11th April 1848, as to advance its true purpose, and not to make her condition less favorable, by an interpretation that endangers her real interests. A review of the judicial decisions upon the act, by Justice Woodward, may be found in the case of Pettit v. Fetz, Ex’r, 9 Casey 120. The case of Mahon v. Gormley, 12 Harris 80, states the object of the act very clearly. Lewis, J., remarks that it was intended for their protection, not for their injury, and must receive such a construction as shall promote that object. The proviso to the principal section — “ That nothing in this act shall be construed to protect the property of any such married woman from liability for debts contracted by herself, or in her name, by any person authorized so to do,” or “for her torts,” is not to be construed as enlarging her power to contract debts. “ Its object (he continues) is merely to make her estate liable for her torts and for debts lawfully contracted by her.” “ In general, therefore, a married woman is incapable of contracting debts. Her capacity and liability are exceptional cases.” Hence in interpreting the special clauses of the act relating to the debts for which she may be held liable, the cases show that they have been so construed as to limit them "strictly to the purpose of protection, and not loosely, so as to expand her contract capacity or liability. This will be seen in the following cases: Mahon v. Gormley, supra; Pettit v. Fetz, Ex’r, supra; Murray v. Keyes, 11 Casey 384; Parke v. Kleeber, 1 Wright 251; Glidden v. Strupler, 2 P. F. Smith 400 ; Cleaver v. Scheetz, 20 Id. 496. It has been held, therefore, in interpreting the 8th section of the Act of 1848, as to her liability for necessaries, that both the pleadings and the evidence must make out a case, of liability under it. The pleadings must set out a debt contracted by the wife, and that it was incurred for articles necessary for the support of the family of the husband and wife, and the evidence must establish these facts : Murray v. Keyes, supra; Parke v. Kleeber, supra; Bear’s Estate, 10 P. F. Smith 430; Davidson v. McCandlish, 19 P. F. Smith 169. As a corrollary from these propositions, it has been held that a joint contract of the husband and wife is insufficient to charge her separate estate. The husband, it is true, must be sued jointly with her, because no action will lie against her, even for necessaries for their family, without joining him, as his estate is primarily liable to execution under the 8th section. Her estate is not liable until an execution against Mm shall have been returned no property. See the cases cited supra. In Murray v. Keyes, the declaration charged them jointly upon the common counts, followed by a special count setting forth that goods, wares and merchandise were “ furnished to the said defendants at their special instance and request, such goods, wares and merchandise being articles necessary for the support of the family of said defendants.” The wife was held to be not liable, this court saying “ that the pleadings as well as the evidence failed to make out a case charging the wife.” The same point was decided in Parke v. Kleeber. In that case one count was for a further sum of $150 for a debt contracted by the said Catharine Parke herself, wife of the said R. W. Parke, with and to the-plaintiffs. The other count was for the “ further sum of $150 for necessaries furnished by the plaintiffs to the defendants at their special instance and request, for the maintenance and support of the family of said defendants.”

The first count was held to be bad, because it did not set forth that the debt was for necessaries for the family, and the second was bad because it set forth a joint contract. In the present case, the declaration contained the common counts for goods sold, work done, and money advanced to the defendants jointly, followed by a count in these words : “And in the further sum of five hundred dollars for services rendered by said plaintiff, as a physician and surgeon, to a minor son of the said defendants, at the special instance and request of the'said Maria Berger above named.” The predicate of all the counts was “ for that whereas the defendants ” “ were indebted,” &c., and the conclusion was that the defendants ” made the several promises preceding. Thus it is clear the action was founded on the joint contract of the husband and wife, and not on the separate and special contract of the wife for necessaries.

The judgment must be reversed on the third and fourth assignments of error upon the refusal of the court to arrest the judgment because of the insufficiency of the declaration. The reason given under the fourth error — that the evidence was not sufficient, does not belong to a motion in arrest of judgment, but to one for a new trial. But we may add that there was no sufficient evidence of a separate contract of Mrs. Berger in her own right. The evidence shows no more than a mere request 'in the ordinary way to attend her son, in which she was acting for her husband, rather than with an intention to bind herself to pay the debt out of her own estate.

It is a necessary consequence of the decided cases that she must contract in her own behalf. The evidence must as clearly prove this as the pleading must aver it. The primary presumption, when a wife takes up necessaries for the family of her husband and herself, is, that she is acting as his messenger or agent, for on him lies the primary duty of furnishing and paying for them. The evidence must overcome this presumption and satisfy the jury that she is acting in her own right, in order to bind her separate estate. There was no such evidence here, and hence the plaintiff endeavored to make out his case by her subsequent declarations, to which exceptions were taken. But a wife cannot be made liable for necessaries by subsequent declarations alone, without primary evidence of facts tending to raise a contract to bind her separate estate. Her subsequent declarations may be corroborative, but cannot alone stand for full proof, without subjecting her to the v.ery dangers it is the purpose of the law to avoid. Even her subsequent promise to pay for necessaries procured by her husband, and for which he alone is liable, would not come within the intention of the law. It would be simply a promise to pay the debt of another, and as to her rvould be nudum, factum. The law enables her to bind herself to pay for necessaries obtained for the family of her husband and herself, but the very essence of the transaction is that the creditor furnishes them on her credit. If not furnished on her credit there can be no contract on her part to pay for them. Even a joint contract it is said is insufficient. The proviso to the 8th section reads thus : That judgment shall not be entered against the wife in such joint action, unless it shall be proved that the debt sued for in such action was contracted by the wife, or (and) incurred for articles necessary for the support of the family of the said husband and wife.” If subsequent declarations alone were sufficient to raise a promise to pay, the dangerous influence or coercion of the husband, which the law seeks to avoid, or the machinations of creditors, might easily be brought into play at once. Ordinarily persons sui juris may make binding acknowledgments of past transactions, but to apply that to a wife would take away the protection intended not only by the entire spirit of the act, but of the proviso when it requires proof that the debt was actually contracted by the wife in her own behalf. This proof is the criterion of her liability, not a mere acknowledgment. As remarked in Glidden v. Strupler, 2 P. F. Smith 403 (on another branch of the wife’s estate), ratification or expressions of ratification cannot infuse life into that which has no vitality.

To "argue that because admissions are a common law means of proof, and therefore not to be rejected, is simply to contend that such evidence is not subordinate to the true spirit and intent of the Act of 1848. It is that we seek to advance, but if we hold that mere naked admissions of a prior contract are sufficient to bind her, without any evidence of a contract in fact, concurrent with the time of its execution, we expose the wife to the effect of intimidation, coercion, fraud, and the various means of extracting from her admissions, to stand in lieu of the proof manifestly required by the law. Judgment reversed.

Williams and Mercur, JJ., concur in. the reversal of the judgment, but dissent from so much of the opinion as rules that the admissions of a married woman of her agreement to pay for the necessaries at the time she procured them are not sufficient evidence, under the act, to establish such a contract.


author: C. J. Agnew

text:
    Reed versus Erie.
    1. The city of Brie, under authority of the legislature, constructed a canal basin in Presque Isle bay, on the north side of the city, and built a pier on the north side of the basin, parallel with Front street — which is on the north side of the city on the margin of the bay — and 1200 feet from it; the city sold lots in the basin, reserving a strip 100 feet wide, for a causeway from Front street across the basin to the pier. By Act of May 1st 1861, the city was authorized to grade, pave, &e., the streets and charge the cost on the lots abutting on the streets so improved. Afterwards the city constructed and macadamized a causeway of twenty feet wide in the centre of the reserved strip, from Front street to the pier, leaving a space of forty feet on each side between the causeway and the basin lots covered with water. Meld, that the causeway was not a street within the meaning of the act and the basin lots were not liable for the cost.
    2. The act referred to ordinary streets, which, as generally understood, are a public highway', in a town between houses or lots for travel of all persons.
    3. The term street can in no sense be applied to a water-way in a lake running between water-lots into the bay.
    October 18th. 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gtordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Brie county, of October and November Term 1875, No. 7.
    This was a scire facias by the city of Erie on a municipal claim, filed July 26th 1868, for $3633.91, against two water-lots, the pi-operty of Charles M. Reed. The writ was issued July 31st 1868. Charles M. Reed having died after the issuing of the writ, his death was suggested November 6th 1872, and his executors, Harriet W. Reed, Charles M. Reed, Jr., and James C. Harrison, were substituted as plaintiffs.
    The bay of Presque Isle fronts the city of Erie on the north. The Act of April 8th 1823, Pamph. L. 243, granted to the borough (now city) of Erie, certain tracts of land in that borough, the land to be sold, and the proceeds to be appropriated to the erection of. a canal basin in the bay. The lands' were sold, and the borough constructed a basin by building a pier in the bay at the distance of 1200 feet from Front street, which is on the south margin ,of -the bay, and is the northernmost street of the city; the pier-is parallel with that street; it is twenty feet wide from south to north, and is so far out in the bay that the largest vessels navigating Lake Erie can come up to the pier. The borough of Erie laid out in lots all the territory (being that in the canal basin) between Front street and the pier, reserving a strip of 100 feet in width, from the end of State street, at Front street, to the pier, for the purpose of making a bridge or causeway from Front street across the canal basin to the pier. The lots, called water-lots, laid out in the basin, are improved by constructing docks and warehouses on the south side of the pier, and extending 200 feet into the canal basin; the .commercial business of the lakes, done at Erié, is done through the docks and warehouses connected with the pier. It consequently became necessary to have a cartway across the canal basin, from the main laud, on Front street, at the foot of State street, to the pier, to transport the commerce back and forth.
    On the 20th of January 1837, the borough entered into a written contract with the owners of the water-lots, by which it was agreed that the lot-owners should have the right to use the pier, and the bridge leading to it,- as a public road or cartway; the borough to impose and collect from the owners of the water lots such taxes as would keep the pier or bridge in repair.
    A supplemental contract was made between the same parties on the 12th of September 1846, by which it was agreed that the lot-owners each should pay-$6 annually thereafter, to be appropriated to the support and maintenance of the bridge, which should be a lien on each lot severally, and in case of non-payment might be collected as county rates and liens are collected.
    By Act of May 1st 1861, sect. 1, Pamph. L. 614, the councils of 'the city of Erie were authorized to cause any public street laid out, or to be laid out and opened, or part of it to be graded, paved, macadamized, repaired or otherwise improved, and to have' the street set with curbstone ; and the councils were authorized to provide by ordinance for the levy and collection of the costs from the owners of the property abutting on the street.
    . On the 10th of June 1867, the councils of Erie ordained “ that 20 feet in the width of State street, from the north side of Front street, northwardly to the line of the inshore' water-lots, shall be macadamized, &c.” They further ordained that the cost should be assessed on the owners of water-lots fronting on the street, and collected from them as provided by the Act of May 1st 1861.
    Reed owned a lot 33 feet wide on each side of the 100 feet strip, extending from Front street to the pier, except a space of 400 feet, about 200 feet south from the pier, which space abutted the basin, and at about the middle of the space there was a drawbridge through the causeway.
    In pursuance of the ordinance the city constructed a causeway of 20 feet wide in the centre of the 100 feet strip, and macadam-' ized it, leaving 40 feet on each side of the pavement, and between it and Reed’s water-lots, covered with' water from 7 to 10 feet deep. The paving was on the length of the lots; Reed was assessed for 755J feet.
    The draft on the next page will indicate the relative location of lots, causeway, basin, &c.
    The causeway was of great utility to commerce, being the only connection between the public pier and the main land, but was of no special benefit to the two lots of Reed, which, by the claim of the city, were charged with the entire cost of the improvement. Reed had always paid the annual charge of f 6 on each of his lots, under the agreement of September 12th 1846.
    The case was tried November 12th 1872, before Wetmore, P. J.; when the foregoing facts appeared.
    Under objection by the plaintiff the court rejected evidence offered by the defendants to prove that the improvement was no benefit to their property, and sealed a bill of exceptions.
    The court charged:—
    “ The agreement of 1846, with the payment of the assessment of taxes on the water-lots by defendants, did not legally prevent plaintiff from assessing and collecting the tax assessed and claimed to be recovered in this case, and the plaintiff is under the evidence entitled to recover.”
    The following are defendant’s points, which were all denied :—
    1. If the jury believe from the evidence, that the macadamizing claimed to be done by the plaintiff, and which is the subject of this action, was done on the causeway or bridge across and over the canal basin, from Front street to the public dock, the plaintiff is not entitled to recover.
    2. The city councils have no authority to make repairs or improvements from the foot of State street into the bay of Presque Isle to the public dock, by special tax on the owners of the water-lots extending into said bay, from Front street to the public dock, on either side of said causeway.
    3. The 4th section of the Act of the General Assembly, approved the 2d day of April 1860, defines the powers of councils over that portion of State street, called a causeway, extending from the foot of State street to the public dock, and there is

      no power granted the city councils to improve that part of said street or causeway, at the expense of the adjacent property owners.
    4. The ordinance of June 3d 1867, enacting that said street, from Front, street to the public dock, should be macadamized at the expense of the owners of water-lots fronting on said street, is wholly inoperative and void, so far as requires the expense to be borne by the owners of the water-lots fronting thereon.
    5. If the jury find from the evidence, that the causeway from Front street across the canal basin to the public dock, had been built and used by the public many years, and that the macadamizing of it was a mere repair or improvement of said causeway for the public benefit, without a special benefit to the defendant, the plaintiff cannot recover.
    6. If the jury find from the evidence that the water-lots of the defendant, on each side of the causeway from Front street to the public dock, in the canal basin, are cut off by water within the limits of said street; that said lots are not accessible, from said street and are not benefited or enhanced in value by said improvement, the plaintiff is not entitled to recover.
    7. If the jury believe from the evidence that the improvement or repairing of said causeway was of public utility and a general public benefit, and conferred no special benefit on the property of the defendant charged with the expense of the repairs or improvements, the plaintiff is not entitled to recover.
    8. The city councils had no authority to assess on the property of the defendant, the expense of macadamizing that part of State street, from Front street to the public dock, described in the ordinance of June 3d 1867 ; there being no petition of the owner of the property, fronting on either side of said street, for said improvement.
    9. The contract dated January 20th 1838, and the supplement dated September 12th 1846, constitute a valid contract between the city and water-lot owners, fixing the sum of six dollars to be paid on each water-lot annually, to the city, for the purpose of keeping and maintaining in repair that portion of State street or causeway, from Front street to the public dock, and if the jury find from the evidence that water-lot owners, including the defendant’s testator, have fully complied with the said contracts by the payment of six dollars annually, on each water-lot, into the treasury of the city, from the making of said contracts to the present time over and above all assessments of taxes for public purposes, the plaintiff is not entitled to recover.
    The verdict was for the plaintiff for $4431.71.
    The defendants took a writ of error; they assigned for error:
    1. The rejection of their offer of evidence.
    2. The charge of the court.
    3-11. The denial of their points.

      J. O. Marshall for plaintiff in error.
    The principle as to municipal charges on specific property is that the property charged shall derive some special advantage from the improvement: Hammett v. Philadelphia, 15 P. F. Smith 146; Schenley v. Allegheny, 12 Casey 29; Washington Avenue, 19 P. F. Smith 352.

      Gr. W. Lathy, for defendant in error,
    cited Greensburg v. Young, 3 P. F. Smith 280; Commonwealth v. Woods, 8 Wright 113.
   C. J. Agnew

delivered the opinion of the court, January 6th 1876.

The case below was a scire facias sur municipal claim of the city of Erie against two water-lots, the property of the late Charles M. Reed, situate in the bay of Presque Isle, for the expense of maintaining a forty-feet causeway laid out in a water extension of State street, of one hundred feet wide, lying between those two lots, from Front street on the shore, to the canal basin pier in the bay, a distance of about twelve hundred feet. The claim, with interest, as found by the jury, was $4431.71. This claim is made under the ordinary powrnr of the city to grade and pave and curb streets at the expense of the adjoining lot-owners.

Two principal questions have been made against the power of the city to charge and collect this expense; first, an alleged want of municipal jurisdiction in the city over the water or bay, in which the lots lie; and second, a want of a special power to make the assessment against the water-lots. Perhaps it would be difficult to deny a general municipal jurisdiction over the structures in the bay in view of the following acts: The Act of 15th April 1834, Pamph. L. 520, extending the bounds of the borough of Erie northward thirteen hundred-feet into the bay of Presque Isle, and conferring power upon the borough and council to enact ordinances for the preservation of the canal basin, then being erected in the bay, and the pier and all bridges, wharves, appendages and constructions therewith connected, and for regulating their use: The Act of 14th April 1851, Pamph. L. 631, incorporating into a city the borough of Erie as the same extends and is incorporated, and continuing in force all and singular- the Acts of Assembly respecting the borough and its ordinances and by-laws, rules and regulations: The Act of 2d April 1860, Pamph. L. 611, authorizing the city to make such rules and regulations as it deems proper and necessary as to the use and control "of the causeway extending into the bay and public dock connected therewith, and to make charges for the use thereof: And the Act of May 1st 1861, Pamph. L. 614, the 6th section of which provides for dredging the bars in the channel at the harbor of Erie, and for levying a tax to be applied to this purpose and for none other.

But it is unnecessary to decide upon the power of the city over these subjects, or its extent, as we are of the opinion there is no special power possessed by the city to charge the expense of macadamizing this causeway through the water, to or against the adjacent water-lots, lying forty feet distant from the causeway on each side along the one hundred feet wide water-way extending from State street into the bay. The power' of the city to grade, pave, and macadamize streets is found in the first section of the Act of May 1st 1861, Pamph. L. 614, which supplied and repealed former laws. There are various changes since, but they do not touch the matter before us. This act authorizes the city “ to cause to be graded, paved, macadamized, repaired and otherwise improved, any public street or part thereof, which is now, or may hereafter, be laid out and opened in said city, and have the said street, or part of street, set with curb-stone;” and to provide by ordinance “for the levy and collection of the costs and expense of work and materials used therefor from the owners of property bounded by, and abutting on said street, by an equal assessment on said property in proportion to the number of feet the same fronts on said street or part of street.” It is evident that these provisions are intended to apply to ordinary streets or highways. The woi’d “street,” as generally understood, means a public highway in a town between houses or lots for travel of all persons, on foot or on horseback, or in carriages. It is a way on land, and hence it can be laid out, opened, graded, paved, macadamized, curbed, ditched, and drained. These are the special characteristics of land-ways in a town, but in no sense can it be said they apply to a water-way in the lake, running between water-lots, twelve hundred feet out in the bay. Such a water extension is not a highway which can be laid out and improved under the act. It is only a water space between lots running from the shore of the bay, having a depth of ten or more feet, incapable of travel in a proper sense. It can only be navigated in boats. It cannot be graded to any line of ascent or descent. The unstable water comes to a level in the calm, to be tossed about and ruffled by the winds in a storm. It cannot be paved, macadamized, or set with curb-stone. It might be filled up with a costly structure of piles or stones ; and this is the very wrong committed by applying to this water-way the provisions made for ordinary streets. The legislature did not in this covert way, by this section, intend to confer a power to build costly structures at the expense of the lots lying under water, for the uses of commerce. The powers conferred were for land travel, not for causeways from the land into the bosom of the bay, and for docks, piers and basins, where vessels may lie and load and unload for the purposes of lake commerce.

Though local jurisdiction probably might be exercised for proper purposes connected with the city, it is not to be forgotten that as the municipal power extends outward over the water it meets a high and superior jurisdiction in the United States, whose powers extend to the great inland seas as well as to the ocean, and that the general government habitually exercises the power over breakwaters, piers, lighthouses and other structures necessary for the protection of commerce. It is therefore hardly to be supposed the legislature intended to carry the ordinary powers of the city over streets out into a new expanse so widely different, where it might possibly conflict with some general'power of the national government. On the contrary, when jurisdiction is intended and powers conferred over the structures in the bay, we find express language used, and the powers carefully guarded; as will be seen in the Acts cited, of 1834 and 1860, for- the preservation, use, and control of these structures. If the power should be inferred from the Act of 1861, the owners of water-lots might be bankrupted by causeways laid out from the end of every street, for opposite to each a water-way is left. A power so fraught with danger must be conferred in clear terms, and not left to a vague inference. The right of private property is too sacred, and too carefully guarded by the Constitution to be blown away by any loose or equivocal utterances. The doctrine of local taxation for benefits conferred by public improvements, beginning in a modest way, for purposes of real utility, was found advancing by stealthy steps and unobserved, until an impression began to prevail that private property had no protection against public needs. This court has been compelled to meet and check this dangerous advance, in the cases of Hammett v. The City of Philadelphia, 15 P. F. Smith 146, and Washington Avenue, 19 Id. 352. But, notwithstanding this check, this doctrine of local taxation for benefits received, had reached a perilous advance sanctioned by many laws and decisions. We may now travel for miles in the rural districts of large cities, where broad paved and curbed streets of the most costly kinds have been paid for at private expense, under arbitrary exactions The power has become flagrant, often engulphing the entire value of the property of small landholders. Speaking for myself, I believe no exercise of legislative power needs constitutional guards more than this, and I regret it was not thought of in the recent convention. If the little all of men of moderate means can be taken to gratify a taste for expensive improvements, or the mere desires of the more wealthy, or to fill the ravenous maws of contractors and public jobbers, on the pretence of public right, such persons had better flee from large towns and cities to places of safety far away from these oppressions.

We think the court erred in negativing all the points of the defendants. Judgment reversed.


author: Mr. Justice Mbrcub,

text:
    Noble et al. versus The Thompson Oil Co. to the use of Brown et al.

    1. Oyer of a record averred in pleadings is not demandable,
    2. A record of a judgment was set up in a plea, the plaintiff craved oyer, which was ordered, and the record was filed; there was no exception taken; the parties afterwards agreed to waive informality in the certificate and the defendant filed a supplemental record. Held, that error as to ordering oyer was waived.
    3. A corporation of Pennsylvania where it did business recovered a judgment there, and immediately bon& fide assigned it of record to citizens of that state. Held, the assignment being valid in Pennsylvania, was valid everywhere.
    4. The assignees took the judgment subject to the equities between the parties at the time of the assignment, and to payments which might be made by the defendants in the judgment before they had notice of the assignment.
    5. After the assignment the plaintiff in the judgment had no attachable interest in it,
    6. The judgment, as well as the partieB, was in Pennsylvania at the time of the assignment.
    7. The debtors, defendants in the judgment, resided in New York; a foreign attachment was issued there against the plaintiffs and served on the defendants as garnishees, after the assignment but before the defendants had notice of it. Held,, that the claim of the assignees was not postponed to that of the attaching creditors.
    8. The plaintiff in foreign attachment is in no better situation as to the thing attached than his debtor whose property is sought to be attached.
    9. In the foreign attachment judgment was recovered against the plaintiff in the judgment on the ground that the debt had been attached because the debtors, garnishees, were served in New York ; in an issue raised, according to the law there, on execution process against the garnishees, it was found as a fact that the assignment had been bonfi fide made in Pennsylvania, but decided as a matter of law that it was no bar to a recovery against the garnishees ; judgment was rendered against them and they paid it. Held no . bar to a recovery by the assignees of the Pennsylvania judgment against the defendants in it.
    10. The provision in the United States Constitution that full faith, &e., shall be given in one state to the judicial proceedings of other states, does not preclude the courts of the former state from inquiring into the jurisdiction of courts where the proceedings were had.
    11. A judgment in rem in foreign attachment is void if the court have no jurisdiction of the property.
    12. Notice by the garnishees of the pendency of the proceedings, to assignor and assignee after the judgment had been obtained in the attachment against the assignor, would not change the result; the assignees were not parties or privies and were not bound to appear and contest.
    October 18th 1875.
    Before Agnew, O. J., Si-iarswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Brie county: Of October and November Term 1874, No. 188.
    This was an action of debt upon a recognisance of bail in error, commenced September 3d 1873, by The Thompson Oil Company, to the use of Elizabeth A. Brown, executrix, Conrad Brown, deceased, John H. Walker, James C. Marshall and P. E. Marshall, against Orange Noble, Ambrose Snow, Theodore Wright and L. L. Lamb•, the writ was returned “ Nihil ” as to Wright and Snow, but Wright appeared to the action.

      The declaration set out the recognisance taken December 10th 1867, by the defendants, before the prothonotary of the Court of Common Pleas of Erie county, by which they acknowledged to owe The Thompson Oil Company $54,000, upon condition that Snow, Burgess, Wright & Woods, plaintiffs in error, would prosecute with effect, &c., a writ of error in a certain action in which The Thompson Oil Company, on the 25th of November 1867, recovered against them a judgment for $26,723.50. The declaration averred that on the 27th of November 1867, The Thompson Oil Company, “ for a full and valuable consideration, to wit, for money due” by the company to Conrad Brown, assigned to Brown the sum of $23,723.50 of the judgment, and also “for a full and valuable consideration, to wit, for professional services as attorneys at law,” assigned to John H. Walker, James C. Marshall and Francis F. Marshall, $3000 of the judgment; it further averred that the judgment was affirmed by the Supreme Court on the 28th of November 1868, but the plaintiffs in error had not paid The Thompson Oil Company, nor the assignees, the amount of the judgment.
    On the 13th of December 1873, the defendants pleaded, that on the 25th of January 1868, The Woods & Wright Oil Company, a coi-poration of the state of New York, claiming to be a creditor of The Thompson Oil Company to the amount of $75,000, petitioned the Supreme Court of that state that a writ of attachment, in the nature of foreign attachment, might issue to attach the debt due by Snow, Burgess, Wright & Woods to The Thompson Company; that The Woods & Wright Company having filed their bond for restitution of any money, &c., which might be collected by them under the attachment in case the defendants should defend and succeed in their defence, an attachment was issued and was served on Snow, Burgess, Wright & Woods, then resident in the state of New York, by which the debt due by them was, according to the law of New York, and the practice of the Supreme Court of that state, attached for the benefit of The Woods & Wright Company; that the original process was duly served on The Thompson Company according to the laws of New York and practice of the Supreme Court of that state, by advertisement and sending a copy of the writ by mail to The Thompson Company at Erie, Pennsylvania, and by serving a notice personally on the president at Erie; that on the 24th of September 1868, final judgment was rendered against The Thompson Company in favor of the Woods & Wright Company for $56,251.88, in accordance with the laws and practice aforesaid.; that by reason of the attachment and the laws of New York, The Woods & Wright Company acquired a lien on the claim of The Thompson Company against Snow and his co-defendants and garnishees, in the Supreme C.ourt of New York, who became absolutely liable to the plaintiffs in the attachment for the amount owing by them to The Thompson Company; that execution was issued on the judgment and the claim owing to The Thompson Company levied on; that when the defendants gave notice of the attachment they had no knowledge of the assignment of the judgment, and had no notice of it until February 23d 1868; that after the execution against defendants was issued, and before any farther step was taken in the proceedings in New York, the defendants, on the 23d of October 1868, gave notice to The Thompson Company and the assignees of the judgment, and authorized them to use the names of the defendants in any legal proceedings in any court “ for the purpose of protecting the original defendants and garnishees from the necessity of paying said execution that the defendants as garnishees did further refuse to pay the amount of the judgment of The Thompson Company against them in discharge of the execution, alleging that it had been assigned as set forth in the declaration; and thereupon, in accordance with law and practice aforesaid, “ on proceedings for relief supplementary to said execution,” the Supreme Court of New York, on the 18th of December 1868, appointed W. M. Tweed, Jr., receiver of the “ indebtedness from the garnishees to said Thompson Oil Company ;” that the receiver commenced suit against the garnishees in the nature of a feigned issue, to try whether the garnishees were entitled to the protection they claimed by reason of the assignments of the judgment; that the receiver made his claim for the amount of the judgment in favor of- The Thompson Company; that the garnishees answered setting up the assignment and averring that the amount of the judgment was due to the assignees, under the facts in the case, which were set out in the answer; that the court referred the claim and answer to Du Bois Smith, Esq., “ to hear and determine the facts and the law arising upon them ;” the facts were proved to the satisfaction of the referee, and on the 29th of July 1869, he decided, as matter of law, that the assignments by The Thompson Company were no bar to the recovery by The Woods & Wright Company against the garnishees, and that there was due by the garnishees to that company the sum of $30,168.60, being the debt due by them to The Thompson Company with interest. The Supreme Court of New York confirmed the award of the referee, and judgment was entered against the garnishees in favor of The Woods & Wright Company for $20,334.11; that notice of the entry of the judgment was served on the counsel of the garnishees, and they caused a copy of the notice to be served on the assignees of the judgment on the 24th of September 1869 ; that no steps were taken by the assignees to have the judgment set aside or to protect the garnishees ; that they afterwards, and before the commencement of this suit, paid The Woods & Wright Company the amount of the judgment recovered by them in New York, “and thereby satisfied the claim against the defendants in this suit on the recognisance on which suit is brought.”
    “ And this the defendants are ready to verify by the said record, wherefore they pray judgment if the said plaintiff ought to have or maintain their aforesaid action against them.”
    On the 17th of December 1873, the plaintiffs craved oyer of the record of the Supreme Court of New York, set up in the defendants’ plea; oyer was granted January 10th 1874 ; and copies of the records referred to in the plea were filed.
    The exemplification of the record showed the following proceedings :—
    On the 25th of January 1868, a warrant issued by a judge of the Supreme Court of New York for the county of New York, on the affidavit of The Woods & Wright Oil Company, to attach the property of The Thompson Oil Company to satisfy the plaintiff’s demand of $75,000 with costs, &c. The sheriff returned to the warrant that on the same day he levied “ upon property within said county belonging to the defendant, and that said property consisted of an indebtedness to said Thompson Oil Company” from Snow, Burgess, Woods & Wright, for which The Thompson Company had recovered a judgment of $27,000. Alfred D. Snow, president of The Woods & Wright Company, on the 13th of February 1868, filed an affidavit that the defendants in the attachment could not be found in the state; that the defendants were a foreign corporation doing business in Pennsylvania, and one not incorporated by New York, and had property within that state, consisting of an indebtedness to them from Ambrose Snow, &c.
    On the 19th of February, upon this affidavit, a judge of the Supreme Court directed that service of the summons in the action be made on the defendants by publication in two newspapers in the city of New York designated by the judge, and that a copy of the summons and complaint be sent by mail to the defendant at Erie, Pennsylvania.
    The summons was that the defendants should answer the complaint to be filed in the case, and serve a copy of their answer on the plaintiff’s attorneys within twenty days after the service of the summons upon them, and should they fail to answer, the plaintiffs would “ apply to the court for the relief demanded in the complaint.”
    The complaint was filed February 21st 1868.
    It set out that the plaintiffs were a corporation organized under the laws of New York; that defendants were a corporation organized under the laws of Pennsylvania; that the plaintiffs, on the 16th of September 1864, were the owners of a large proportion (specified) of certain oil wells in Pennsylvania; that from that time the defendants had received the plaintiffs’ share of tbe product of the wells, amounting in value to $50,000, for which with interest the defendants demanded judgment.

      Proof having been made of the publication and of the sending by mail of the notice, &c., according to the order of the court, the matter was referred to a referee to take proof of the demand, &c., and report.
    The referee reported that there was due from the defendants, The Thompson Oil Company, to the plaintiffs, the sum of $55,433.61, for which, on the 25th of September 1868, judgment was entered in the Supreme Court of New York, for the county of New York.
    On the 13th of October 1868, execution was issued on this judgment, to which the sheriff returned “No personal or real property.”
    On the 18th of December 1868, on the affidavit of the attorney of the plaintiffs, that the execution on the judgment of the plaintiffs had been returned unsatisfied and thejudgment remained unpaid, and that Ambrose Snow and J. S. Burgess had property of the defendants, a judge of the Supreme Court issued an order to Snow and Burgess to appear at, &c., on the 17th of December 1868, to be examined concerning the same. On that day Ambrose Snow made affidavit, admitting the indebtedness, and alleging that they had been notified that certain parties, whose names he could not remember, claimed to own by assignment from The Thompson Company the judgment obtained in Pennsylvania against Snow, Burgess and others in favor of that company. In pursuance of that affidavit, W. M. Tweed, Jr., Esq., was appointed receiver of the indebtedness.
    By leave of the court, an action was commenced by W. M. Tweed, Jr., receiver of the Thompson Oil Company, against The Thompson Oil Company, Ambrose Snow, Joseph S. Burgess, T. Wright and W. J. Woods. The complaint;set out the action by the Woods & Wright Oil Company, against I “The Thompson Oil Company, a foreign corporation, formed under the laws of Pennsylvania,” the attachment, the levy under it of the indebtedness of Snow to The Thompson Company, the recovery of the judgment by The Woods & Wright Company against The Thompson Company for $56,251.88; the issuing of the execution and the sheriff’s return that it was unsatisfied; the refusal of Snow et al. to pay the indebtedness; the recovery of the judgment in Pennsylvania by The Thompson Company against Snow et al. for $27,000, “ which judgment is unpaid,” and that Snow et al. were still indebted to The Thompson Company, &c. The plaintiff demanded judgment against Snow et al. that they should pay to The Woods & Wright Company the amount of the judgment against them in favor of The Thompson Company.
    Snow et al. appeared in the suit by attorney and answered, admitting the allegations in the complaint; and averred that on or about the 23d of February 1868, and after the attachment had been levied, they received notice that the judgment in favor of The Thompson Company had been assigned by that company to J. C. & F. F. Marshall, J. H. Walker & Son, and Conrad Brown, who claimed to be the owners of the judgment; that the assignment was made before the service of the attachment, and that by reason of the assignments The Thompson Company had no claim against Snow et ah, upon which execution could be levied. By agreement between the attorneys of the plaintiffs in the attachment, and of attorney of Snow et ah, Dubois Smith, Esq., was appointed by the court, referee to hear and determine the issue between the parties.
    The referee reported, July 29th 1869, finding the facts, including the assignments of the judgment as before stated, and further found, as matter of law, that the assignments were no bar to the recovery by the plaintiffs against the defendants in the attachment for the amount demanded in this action; and that judgment should be entered for the plaintiffs against the defendants for $26,723.50, with interest, amounting in all to $30,168. Judgment was accordingly so entered in the Supreme Court of New York, July 30th 1869.
    Satisfaction for the full amount of the judgment and costs was acknowledged, August 4th 1869, by the attorney of the receiver.
    The following were the notices from Snow et al., referred to in the plea, not appearing in the New York record, but referred to in the opinion of Mr. Justice Mercur:—
    • “ New York, October 23d 1868.
    To The Thompson Oil Company, Gentlemen: — We hereby give you notice that on the attachment served on us as your debtors, on the 25th day of last January, at the suit of The Woods & Wright Oil Creek Company, of which you were duly informed by us,'on or about the 1st day of February last, judgment having been subsequently obtained against you, an execution has been issued against us on said judgment, from the Supreme Court of the state of New York, in and for the city and county of New York, under which our property has been levied on by the sheriff of the city and county of New York, to compel the payment to said Woods & Wright Oil Creek Company, your judgment creditors, and plaintiffs in said judgment of a sum of $26,723.50, said to be due by us to you, being the same amount for which you obtained judgment against us, in a suit instituted in the Court of Common Pleas of Erie county, in Pennsylvania, to May Term 1866, No. 114. If you can protect us from being obliged to pay said amount to the said sheriff, or the plaintiffs in said execution, either by having the judgment against yourselves set aside, or in any other way, please to do so.
    “We hereby give you authority to use our names, by making any application to the said Supreme Court in New York, or in any other way that may be necessary for the purpose of protecting us from such payment. If said execution is not set aside, we shall be obliged to pay to said sheriff or to the plaintiffs in the execution, the amount recovered by you in said suit at Erie, or so much thereof, if any, as it may be finally adjudged we are liable for.”
    “ New York, October 23d 1868.
    Conrad Brown, Esq., Sir: — Having recently understood that you claim to have an interest in a certain claim made by The Thompson Oil Company against us, on which suit was instituted in the Court of Common Pleas of the county of Erie, in the state of Pennsylvania, to May Term 1866, No. 114, we beg leave herewith to inclose to you a copy of the notice that we have sent to said Thompson Oil Company, and authorize you also to use our names in any application to said court in New York, or any other judicial tribunal, or in any other judicial proceeding for the purpose of relieving us from said execution and attachment. We shall be happy to give you any further information you may desire in relation to the matter.”
    The notices to the other assignees were in the same form.
    The plaintiffs demurred to the plea and assigned the following causes of demurrer:—
    1. Because the plea set up the judgment in New York and its payment to the plaintiffs on the attachment, without tendering issue on the allegation in the declaration, that the debt due from Snow et al. had been assigned for a valuable consideration by The Thompson Company to Brown, Marshall and Walker by assignment bond, fide before the issuing of the attachment.
    2. Because the plea set up the judgment and payment aforesaid, whilst it admitted that the garnishees, on the 23d of February 1868, long before the alleged payment, had knowledge of the transfer bond, fide to the use plaintiffs before the attachment.
    3. Because the plea set up the proceedings, judgment, &c., in New York, without alleging service of process on The Thompson Company, or their appearance in the suit in New York, or that The Thompson Company was, at the time of the issuing of the writ, owner of the debt due by Snow et al., and because the plea did not deny the matters alleged in the declaration that the debt attached was at the date of the attachment divested from said Thompson Company and vested in the use plaintiffs in this suit, and if the facts alleged in the plea are a rightful payment, the plea is but the general issue and should have been so pleaded; and no material fact is traversed nor alleged which avoids the allegation in the declaration.
    4. Because the plea set up a judgment without alleging that the plaintiffs were either parties or privies.
    5. Because the plea did not deny the only fact on which a material issue could be taken, to wit: whether the assignments had been make bond. fide before issuing the attachment; nor did the plea allege service of process upon The Thompson Company or appearance by them or service of summons or appearance by the assignees in the Supreme Court of. New York, but had tendered issue by their plea the fact that the garnishees gave a casual notice to The Thompson Company on or about February 1st 1868, and the fact that Snow et al. had no notice prior to the issuing of the attachment of the assignment of the claim and did not receive notice before February 23d 1868, each of these averments being immaterial.
    6. Because the plea set up the judgment, &e., averring that in the proceedings in the Supreme Court in New York, it was determined as matter of law that the assignments afforded no bar to a recovery by the plaintiffs in the attachment, without averring that the assignees, the use plaintiffs, were either parties or privies to the suit in New York or were legally before the Supreme Court there when such determination was made.
    7. Because the plea pleads a judgment in the Supreme Court in New York, in a foreign attachment by The Woods & Wright Company against The Thompson Company to attach a debt due from Snow et al., summoned as garnishees, averring that by the attachment The Woods & Wright Company obtained a lien on the debt, without averring that on the day of the attachment the debt was the property of The Thompson Company, or denying that the debt was, at the date of the attachment and before and since, the property of Conrad Brown et ah, by assignments from The Thompson Company, thus argumentatively averring, as a legitimate conseqence of the attachment, that the plaintiffs in the attachment could acquire a lien in foreign attachment against The Thompson Company, by attaching property which at the date of the attachment belonged to the use plaintiffs in this suit.
    8. The plea is informal, uncertain, defective and insufficient, in that it avers that the defendants, the garnishees, in the New York suit became liable to the plaintiffs in the attachment for the amount of their debt to The Thompson Company, and subject to have execution against them, and execution was issued against them on the judgment and levied on the debt due by them to The Thompson Company, which averments were unfounded in fact, as appeared by the New York record.
    9. Because the plea alleged an issue altogether a matter of law, to vyit: that the judgment in New York “ was obtained in accordance with the laws of New York and the practice of the Supreme Court there, a question on which no apt or material issue can be taken, the same plea stating all the facts and circumstances attending said judgment, giving the record thereof; the validity or invalidity of said judgment must be inquired of and determined by this court.”

      February 6th 1874. Agreement waiving informality of certificate of record filed.
    February 7th. A record from courts of New York, supplemental to that filed January 10th 1874, filed.
    March 24th 1874, the defendants joined in demurrer.
    On the 22d of June 1874, the judgment was entered for the plaintiffs on the demurrer, the court delivering the following opinion :—
    “ Our conclusions in this case are that the assignment by Thompson Oil Company to estate of Conrad Brown and others, transferred to the assignees, from the date of the assignment, all the interest of the legal plaintiffs in the judgment against Snow, Burgess, Woods and Wright, so that it was not attachable as the property of The Thompson Oil Company in the hands of said defendants after the date of said assignment; that the said assignees, being non-residents of the state of New York, and actually residents in and citizens of the state of Pennsylvania, at the time of the proceedings against the said The Thompson Oil Company in the Supreme Court in and for the city and county of New York, the situs of the property follows the residence of its then owners, and was never within the jurisdiction of the courts of the state of New York, nor were the persons of said assignees, and that therefore the said Supreme Court never acquired jurisdiction of either the persons or the property of the said assignees, and any judgment of said court affecting their rights was wholly ex parte and invalid, and that, therefore, as a final conclusion from the foregoing conclusions, the demurrer of the plaintiffs in this case to the plea of the defendants is good and sufficient in law. We therefore direct judgment to be entered on the demurrrer in favor of the plaintiffs, the amount to be liquidated from the record in the case by the prothonotary.”
    The judgment was liquidated at $37,597.98.
    The defendants took a writ of error and assigned for error :—
    1. Granting plaintiffs’ motion craving oyer of the record and ordering its production.
    2. Entering judgment for plaintiffs on the demurrer.
    Cr. Shiras and J. Fallon, for plaintiffs in error.
    One compelled by a competent jurisdiction to pay a debt, cannot be compelled to pay it again: Embree v. Hanna, 5 Johns. R. 101; Noble v. Thompson Oil Company, 19 P. F. Smith 410. The only reply to a plea of a record of another state is nul tiel record: 1 Coke Lit. 260 ; Benton v. Burgot, 10 S. & R. 240; Morris v. Galbraith, 8 Watts 166; Clark v. M’Comman, 7 W. & S. 469. Oyer is not demandable of a record: 1 Troubat & Haley 421 (363); Stephens on Pleading 102. The situs of a debt is not the residence of the creditor. Personal property has no locality and is distributable according to the jus domicilii of the owner: Birtwhistle v.
      Vardill, 5 B. & C. 438; Story’s Oonflct of Laws, sect. 380; Sill v. Worswick, 1 H. Black. 690. The visible locality of a debt is the residence of the debtor, and the tribunal of that residence may exercise-jurisdiction over it in rem: Story’s Conflict of Laws, sect. 549, 550; Andrews v. Heriett, 4 Cowen 510, in note; Mills v. Duryee, 7 Cranch 481; Bissell v. Briggs, 9 Mass. 462; Armstrong v. Carson, 2 Dall. 302. Attachment is a proceding in rem, and also against the garnishee personally : Childs v. Digby, 12 Harris 23; Andrews v. Clark, Carthew 25; Morgan v. Neville, 24 P. F. Smith 52; Phillips v. Hunter, 2 H. Black. 402. A garnishee is protected against an equitable assignee claiming under his creditor 'as he would be against the creditor himself, if defendant in the attachment: Bank of N. America v. McCall, 3 Binn. 338; s. c. 4 Id. 371; Holmes v. Remson, 4 Johns. Ch. 466; Le Chevalier v. Lynch, Douglass 160; Moore v. Spackman, 12 S & R. 287 ; Anderson v. Young, 9 Harris 443. A claimant to the subject-matter of a judicial controversy between others must make his claim known : Coates v. Roberts, 4 Rawle 110; Heller v. Jones, 4 Binn. 66 ; Collingwood v. Irwin, 3 Watts 306 ; Paul v. Witman, 3 W. & S. 409 ; Govett v. Richmond, 7 Sim. 1; Story’s Conflict of Laws, sect. 389-395; Kerr on Frauds 142 ; Dearle v. Hall, 3 Russ. 1; Lovendge v. Cooper Id. 30 ; Neilson v. Blight, 1 Johns. Cas. 205; Weston v. Barker, 12 Johns. 276; Warren v. Copelin, 4 Metc. 594; Chase v. Haughton, 16 Verm. 594; Ward v. Morrison, 25 Id. 593; Richards v. Griggs, 14 Mo. 416; Fish v. Weston, 5 Maine 410; Boon v. Staaden, 24 Ill. 320; Green v. Van Buskirk, 7 Wallace 139. The New York Code (Voorhees) provides:— Sect. 111. “Every action must be prosecuted in the name of the real party in interest.” Sect. 112. “In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defence existing at the time of, or before notice of the assignment.”

      J. B. Cessna and J. C. Marshall (with whom was F. F. Marshall,) for defendants in error.
    A voluntary assignment of a chose in action valid under the laws of the place where the owner resides is valid everywhere : Kelly v. Craffo, 45 N. Y. 86 ; Story’s Conflict of Laws, sect. 368, 390; People v. Commissioners, 23 N. Y. 254; Guillandet v. Howell, 35 Id. 657 ; Speed v. May, 5 Harris 94 ; 2 Kent’s Com. 588, sect. 455. The situs of a debt is where the owner is: Story on Conflict of Laws, sect. 399, 411; 2 Kent, sect. 407 : Law v. Mills, 6 Harris 185. ■ An assignment of a debt is good against a subsequent attaching creditor, even if no notice of it be given till after the attachment: Stevens v. Stevens, 1 Ashmead 190 ; Pellman v. Hart, 1 Barr 263. Plaintiff in foreign attachment is in no better situation than his debtor : United States v. Vaughan, 3 Binn. 394; Caskie v. Webster, 4 Wallace 131. The court of the foreign state is bound to give the same effect to the assignment as it has in the state where it was made : Story’s Conflict of Laws, sect. 397. The defendants in the attachment having no property at the time of the attachment in the debt, laying the attachment on their debtors in New York, did not give the court there jurisdiction, and by the order to serve the summons on them no jurisdiction was acquired: Penna. Railroad Co. v. Pennock, 1 P. F. Smith 244; Fish v. Anderson, 12 Abbott’s Pr. R. 8. In proceedings in rem, unless the court have jurisdiction over the thing, a judgment is not conclusive: Story’s Conflict of Laws, sect. 592; 1 Greenl. Ev., sect 542. A court cannot give itself jurisdiction by its own finding, so that its decision cannot be inquired into, to determine its right to decide: Rose v. Himely, 4 Cranch 241; Thompson v. Whitman, Pittsburg Legal Journal, May 3d 1874 ; Baxley v. Linah, 4 Harris 249 ; Story on Conflict of Laws, sect. 493-495; Eby’s Appeal, 20 P. F. Smith 311; Bissell v. Briggs, 9 Mass. 462 ; Border v. Fitch, 15 Johns. 121. A plea containing no denial that the property seized was the property of plaintiffs, nor any averment that it was the property of either of the defendants in the attachment, or that it was in any other manner subject to be taken under the writ, is bad: Buck v. Colbath, 3 Wallace 344; Megee v. Beirne, 3 Wright 50. The attachment in New York being a proceeding not in rem, but in personam, is binding only upon parties and privies. The plaintiffs are assignees, claiming by title anterior and paramount to said proceedings, and are not barred or estopped by anything done therein : Bigelow on Estoppel 15, 161, 162 ; 1 Smith’s Lead. Cas. 830; Westoby v. Day, 2 E. & B. 605; Himes v. Remsen, 20 Johns. 229; Perkins v. Parker, 1 Mass. 117; Wood v. Partridge, 11 Id. 488; Hull v. Blake, 13 Id. 158. By the New York Code, sect. 122 (Voorhees), it is provided : “ The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in,” &c. If parties, they are not brought in; their rights and interests are not affected by the determination of the court: McMahon v. Allen, 12 How. 39; Shaver v. Brainard, 29 Barb. 25; Stuart v. Brewer, 17 How. 571. The interest of a third party or conflicting claims to property cannot be tried in supplementary proceedings: Biddle’s Supplementary Proceedings 124, 150, 151; Garder v. Smith, 29 Barb. 68 ; Voorhees v. Seymour, 26 Id. 585 ; Rodman v. Henry, 17 N. Y. 482; Hunter v. Blank et al., 50 Id. 806. An assignee is not privy to proceedings had against his assignor, subsequent to assignment: 1 Greenl., sect. 23 and note: Crane v. Morris, 6 Peters 611; Carver v. Jackson, 4 Id. 183; Cossens v. Cossens, Willes 25. By the Constitution of the United States, judgment of another state is put upon the same footing as a domestic judgment, with the qualification that it doe3 not prevent an inquiry into the jurisdiction of the court in which the original judgment was given : Baxley v. Linah, 4 Harris 249; Story on Conflict of Laws 493-495; Paschal’s Annotated Constitution 214; Steel v. Smith, 7 W. & S. 447; Borden v. Fitch, 15 Johns. 121; Shomway v. Stillman, 4 Cowen 292. When neither the parties nor subject-matter are within the jurisdiction of a court its judgment has no effect: Eby’s Appeal, 20 P. F. Smith 311. To such a judgment, sentence or decree, no extraterritorial effect is accorded: Bissell v. Briggs, 9 Mass. 462. Notice of proceedings will not give c&urt jurisdiction; Reed v. Elder, 12 P. F. Smith 308 ; Pouling v. Wilson, 13 Johns. R. 192; Fenton v. Garlick, 8 Id. 194; Scott v. Noble, 22 P. F. Smith 115. Judgments have not by Act of Congress full power and conclusive effect, but only such effect as they possess in the state whence they were taken : Rogers v. Burns, 3 Casey 526; Snyder v. Barber, 18 N. Y. 648. When a chose in action is bond, fide assigned it is not subject to attachment, and if judgment is obtained even after appearance of assignor, such judgment is not a bar to assignee’s right of recovery: Warren v. Lynch, 5 Johns. R. 239 ; Van Buskirk v. Warren, 34 Barb. 457; Tams v. Bullitt, 11 Casey 308 ; Cooser v. Craig, 1 Wash. C. C. R. 424; Glover v. Austin, 6 Pick. 209; Frazier v. Fredericks, 4 Zabriskie 160; Woodburne v. Scarborough, 20 Ohio St. 57. Under the New York Code, sect. 135 (Yoorhees), the courts of that state have no jurisdiction to order service of summons on a non-resident defendant by publication unless he has property within the state when the order is made: Fiske v. Anderson, 12 Abbott’s Rep. 8. The assignees could not be bound by the proceedings in New York, unless they were brought as parties upon the record: Biddle’s Supplementary Proceedings 150; Bostick v. Menck, 40 N. Y. 383; Gardener v. Smith, 29 Barb. 68; Voorhees v. Seymour, 26 Id. 585 ; Porter v. Williams, 9 N. Y. 150.
    The New York Code, sect. 122 (Yoorhees), provides: “ A defendant against whom an action is pending upon a contract, or for specific real or personal property, may at any time before answer upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person, and the adverse party apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt or delivering the property or its value to such person as the court may direct, and the court may in its discretion make the order.”
   Mr. Justice Mbrcub,

delivered the opinion of the court, January 6th 1876.

This suit was on a recognisance. It was entered into on the suing out of a writ of error to a judgment of the Court of Common Pleas of Erie county. That judgment was affirmed by this court. After it was recovered in the court below, and before it was affirmed here, it was assigned to Brown et al., the use parties of defendant in error. About two months after that assignment, the defendants in the judgment were attached in the state of New York, as garnishees of the original plaintiff in the judgment. The plaintiffs in error pleaded the judgment in that attachment suit against the garnishees and their payment thereof, in bar of a recovery on the recognisance. The defendants in error demurred to the plea, and the court entered judgment in their favor.

The first assignment of error is to the court ordering the production of the record averred in the plea. It is now conceded that oyer of thé record is not demandable: 1 Tr. & Haley’s Prac. 421: but it does not appear that any exception was taken to the action of the court at the time, nor that the plaintiffs in error were injured by its production. About a month after a copy of the record was filed, in pursuance of the order of court, the parties by written agreement filed, waived informality in the certificate of record. The next day thereafter, on leave granted, the plaintiffs in error filed a supplemental record. Having thus voluntarily exhibited the record, the complaint of its former production cannot now be regarded.

The second assignment is to the entry of judgment in favor of the defendants in error, on the demurrer. This involves a consideration of the effect of the assignment of the judgment to the defendants in error, and also of the effect of the attachment and proceedings thereon.

First. The Thompson Oil Company was a corporation formed under the laws of this Commonwealth and doing business therein. The assignees were citizens and residents of Pennsylvania. The judgment assigned was of record in a court of this state. When the assignment was made, the assignor, the assignees, and the property assigned, were all within this Commonwealth and governed by its laws. That the assignment was for a full consideration and in good faith are unquestioned. It was a purchase, by persons having a right to buy from a party having a right to sell, of property, of which no rule or policy of law forbids the sale. It was not fraudulent, either in law or fact. It was not a statutory transfer of the judgment, but a voluntary sale and assignment of it. It was then beyond all doubt a valid transfer here. Being a valid assignment when and where made, it is valid everywhere: Story on Conflict of Laws, §§ 398, 399 ; Speed v. May, 5 Harris 91: Kelly v. Craft et al., 45 N. Y. 86. It is true the assignees took the judgment subject to tbe equities existing between tbe parties thereto at the time of the assignment, and they also held it subject to any payments that might be made by the defendants therein to the ’assignor before notice of .the assignment. By this transfer the whole property of the Thompson Oil Company in the judgment passed to the assignees. Thenceforth the oil company had no attachable interest in the judgment, but held it as a mere naked legal trustee of their assignees. The defendants in that judgment no longer owed or were indebted to the original plaintiff therein, but they owed it to the assignees.

Secondly. It is contended that insomuch as the foreign attachment was served on the garnishees before they had notice of the assignment, the claim of the assignees is postponed to that of the attaching creditors. This conclusion is not sustained by the authorities in this country; among others may be cited: Wakefield v. Marvin, 3 Mass. 558; Dix v. Cobb, 4 Id. 512; Van Buskirk v. Warren, 24 Barb. 457; United States v. Vaughan et al., 3 Binn. 394; Stevens v. Stevens, 1 Ash. 190; Pellman et al. v. Hart et al., 1 Barr 263; Patton v. Wilson, 10 Casey 229; Speed v. May, 5 Harris 91; 5 Wallace 307. The reason on which these authorities rest, is that the plaintiff in a foreign attachment stands on no better footing as to the thing attached than his debtor, the defendant, whose property is sought to be seized. All that can be seized by virtue of the attachment, is the property of the debtor. The original plaintiff in this judgment having disposed of it in good faith and for a valuable consideration to the defendants in error, no creditor of the assignor could set aside the assignment by proceedings in foreign attachment.

It is argued, however, that as the effect of the attachment on the assignment has been otherwise decided by the court in New York, and the garnishees have paid the debt to the attaching creditors, it establishes a good defence here for the plaintiffs in error. Art. iv, sect. 1, of the Constitution of the United States, declares “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, and Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof.” By the Act of 26th May 1790, 2 Purd. Dig. 1484, pi. 1, Congress prescribed the manner of authentication, and further declared “the said records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States as they have by law or usages in the courts of the state from whence the said records are or shall be taken.” The judgment of the court of another state is thus put on the same footing as a domestic judgment, with this qualification, that it does not prevent an inquiry into the jurisdiction of the court in which the judgment was given to pronounce it, or the right of the state itself to exercise authority over the persons or subject-matter: Story’s Com. 483 and 1307; Bissell v. Briggs, 9 Mass. 462; Shumway v. Stittman, 4 Cowen 292; Borden v. Fitch, 16 Johns. 121 ; Benton v. Burgot, 10 S. & R. 240; Steel v. Smith, 7 W. & S. 447; Campbell v. Steele, 1 Jones 394; Baxley v. Linab, 4 Harris 241.

We have already showed that the judgment as well as the parties to the assignment were within this state at the time of the transaction. They so continued at the time of the issuing of the writ of foreign attachment, and during the pendency of all the proceedings thereon. Neither the defendants in error, nor the judgment which they purchased, was within the state of New York. The court then had no jurisdiction of the persons or property of the defendants in error.

The writ of foreign attachment rests on the assumption that the debtor is beyond the limits of the state, but his property is within the reach of process. A judgment in personam is invalid unless procured after service of summons or after appearance. Without one of these the court would have no jurisdiction of the person. So if the judgment be in a proceeding in rem it is void if the court has no jurisdiction of the property : Pennsylvania Railroad Co. v. Pennock, 1 P. F. Smith 244. Nor does the fact that the garnishees in the attachment after judgment has been recovered against the assignor, notified the assignor and the assignee, by letter, of the pendency of the'proceedings, change the result. The notice was insufficient in substance and unreasonable in time: Erie Bank v. Gibson, 1 Watts 143; Paul v. Witman, 3 W. & S. 409; Shinier et al. v. Jones et al., 11 Wright 268. The assignees were not bound to appear on such a notice and contest the case. If they had done so, and had been admitted as parties to the suit, the case of Moore v. Spackman, 12 S. & R. 287, would bind them to acquiescence in the judgment. On the contrary, they waived none of their rights. They were neither parties nor privies to the suit. We give full effect to the Constitution of the United States and to the law of Congress enforcing the same. We assent to the conclusiveness of the judgment of a court of a sister state, when that court has jurisdiction, yet we cannot concede that a person resident within this state, and owning property situated therein, shall involuntarily and by such a proceeding be constructively brought within the jurisdiction of the court of another state, so as to divest his rights in that property.

The law requires us to give such faith and credit only to this record as it has by law or usage in the courts of the state of New York. As we understand the laws of that state, the judgment, so far as it is attempted to affect the defendants in error, is void there. Yoorhees U. S. Code, 10th ed., page 114, sect. 122, declares, “the court may determine any controversy between the parties before it when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties the court must cause them to be brought in.” It further declares, “ when it appears that any person not a party to the action claims the same debt or property in controversy, such claimant shall he substituted of record.” ' •

This case presented the precise facts suited to the application of the code. It was the duty of the garnishees to invoke its protection. If he chose to waive this privilege, which the law gave him for his protection, he cannot thereby throw the loss an an innocent assignee: McMahon v. Allen, 2 How. 39. If the garnishees had properly averred the claim of the assignees, which the record shows was known to them, the plaintiffs in the attachment would have been compelled to amend their summons and complaint so as to have made the assignees a party to the action. Nor is it a valid objection to such a course that the assignees are residents of another state: 17 How. 571. The rights of third persons can be brought into litigation only in a regular way by suit: Rodman v. Henry, 17 N. Y. 482. If not brought in upon’service of process the court will not permit the trial to proceed to affect them: 2 Duer 663; 5 Id. 666. The judgment pleaded shows on its face that it was obtained in disregard of the laws of New York and of the rights of the assignees. No property was seized. No appearance of the defendants in error was procured. No effort was made to bring them in on process. They were not substituted of record. They were not in any sense a party to the action. Their rights as assignees were, therefore, not affected: Roy v. Baracus, 43 Barb. 310. The judgment rendered against one not a party to the action, before it is pronounced, does not bind him, nor is it any evidence against him: Shuver v. Blaidard et al., 29 Barb. 25. Want of jurisdiction may always be set up against a judgment when sought to be enforced, or when any benefit is claimed under it. The want of jurisdiction makes it utterly void and unavailable for any purpose: Borden v. Fitch, 15 Johns. 121; Page v. Hill, 43 Barb. 44; Bank v. Judson, 4 Selden 254.

The assumed hardship of paying the debt twice might readily have been avoided. The code gave the garnishees clear and specific directions for their full protection. They studiously avoided following them. They agreed to submit the cause and all the issues therein to a referee. To his finding they filed no exceptions. This manner prevented the numerous errors in the case from being, presented to the consideration of the court.

Our great respect for the learning of the judges of that court impresses us with the conviction that it was under these circumstances they permitted this judgment to be recovered-, and that they would hold it of no effect against the assignees, whenever properly presented for their consideration.

Hence we hold that the judgment in the attachment suit did not divest the right of property acquired by the defendants in error to the judgment in this state. That it must be so held in the state in which the judgment on the attachment was recovered as well as in this state where it was pleaded.

It follows, therefore, the learned judge was correct in entering judgment in favor of the defendant in error on the demurrer.

Judgment affirmed.