text:
    Desha against Baker & Others.
    Error to Hempsteacl Circuit Court.

    Where a writ of -attachment is levied on property, or on the indebtedness of a garnishee, a schedule of the property levied on must be attached to the return, and the return must also show that, at the time of summoning the garnishee, the Sheriff de ' dared, in the presence of one or more citizens of the county, that ho attached the debt due by him to the defendant.
    In every case, this declaration, in the presence of one or more citizens, as to what is attached, is necessary; and a schedule of the property, and the names of the persons in whose presence the writ was executed, are equally necessary.
    If these requisites are complied with, the debt is 'fixed in the hands of the garnishee, in favor of the creditor; and a recovery will protect the garnishee pro tanto, and may be pleaded in bar of any future action.
    Merely summoning the garnishee, is no attachment of an indebtedness.
    The defendants in error commenced, in the Court below, their action of debt, by petition against Robert.B. Francis, by suing out a writ of attachment from the Circuit Court, dated the 27th of June, A. D. 1840. The Sheriff returned on the writ, that he executed it,- “ by seizing and taking, by virtue of the within writ, a certain negro boy slave, .named Bill, as the property of the within named Robert B. Francis, and as directed by the plaintiff’s attorney, G. D.Royston, on the 29th day of June, 1840; and I further executed the within writ of garnishment, as within 1 am commanded, by reading the same in the presence and hearing of the within named T. T. Collier and H. W- Smith, in Ozan township, Hempstead county, and State of Arkansas, and then and there, in their presence and hearing, declared that I did attach all and singular the goods and chattels, lands and tenements, moneys, credits, and effects of the within Robert B. Francis; and that I did summon them to be and appear before the Judge, on the first day of the October Term, 1840, to answer what might be objected against them, this the 29th day of June, A. D. 1840; and I further executed the within summons, by reading the same in the presence and hearing of the within named Robert B. Francis, in Ozan township, &c., this 25th day of July, A. D. 1840.”

      At April Term, 1841, the plaintiffs hied their allegations and interrogatories, against Collier and Smith, as garnishees; and on the 5th of April, 1841, Collier and Smith.filed their answer, under oath, in which they admitted that Francis held their joint note, dated December 28, 1839, payable at twelve months, on which $250 Was due, the same being for five hundred dollars.
    On the 19th of April, Francis appeared, and moved to quash the sheriff’s return on the writ, as to the garnishees, and that he should be restored to his rights against the garnishees; and On the same day, the plaintiff in error moved for and obtained leave to interplead. He thereupon, on the same day, filed his interpleader, in which he averred, that on the 28th of December, 1839, Collier and Smith executed their writing obligatory to Francis, due at twelve months after date, for value received, for $500; and that Francis, on the 25th day of February, A. D. 1841, for a valuable and full consideration, bona fide endorsed the same to the plaintiff in error, in writing; that the same is wholly unpaid; and that when it was so assigned, the amount due thereon had not, nor had any part thereof, been attached in the hands of thq garnishees, or either of them; nor was any such attachment of the same, or any part thereof, evidenced by any record or return whatever; and that Francis could therefore rightfully assign the same.
    On the 14th of April, Francis’ motion to quash the return was overruled, and judgment entered against him.
    On the 15th of April, the plaintiffs filed two replications to Desha’s interplea. The first alleged, that, long before the endorsement to Desha, to wit, on the 29th of June, 1840, the writ of attachment was executed on Collier and Smith, by reading it in their presence and hearing, at Ozan township, &c., and summoning them; concluding with a verification by the return. The second replication alleges, that the indebtedness of the garnishees to Francis was attached on the 20th of June, 1840, with a verification by the return.
    To the first replication Desha demurred; and to the second he took issue. The Court overruled the demurrer, and, on inspcting the return, decided that the indebtedness was attached, and rendered judgment on the second issue against Desha. Judgment was accordingly entered against the garnishees, in favor of the plaintiffs below.

      Pike, for plaintiff in error:
    ■ The first question presented bj the record is, whether summoning a garnishee merely, binds a debt in his hands, so that the person to whom he owes it.has no longer any control over it?
    The second question presented by the record is, whether the indebtedness of the garnishees to Francis, upon their bond to him, was so attached, that a subsequent assignment of the-bond,-by Francis to Desha, was inoperative? If the indebtedness was legally attached, then the judgment of the Court below may be sustained.
    The solution of this question is to be sought in the construction of certain provisions of Chapter 13 of the Revised Statutes. By the provisions of that chapter, the plaintiffs may, upon complying with certain pre-requisites, issue a writ of attachment, containing a triple mandate, commanding the sheriff, first, to attach the defendant by his goods, chattels, &c., no matter in whose hands found; second, to summon the defendant; and third, to summon every person in whose hands or possession the goods, &c., are found, and particularly every such person as shall be named in'the writ by the request of the plaintiff. Upon making a certain affidavit, he may have a clause of. capias against the garnishee.
    The manner of attaching the defendant’s goods, chattels, lands, tenements, credits, or effects, is provided by section 8. It is to be “by the officer going to the place where, or the person in whose hands or possession, the goods or effects are supposed to be, or to the person who is supposed to be indebted to the defendant, and then and there, in the presence of one or more citizens of the county, declaring that he attaches the same.”
    From the time of this service, the property, money, or effects, so attached, remain in the. officer’s hands or possession, and must be by him secured, to abide the event of the judgment of the Court.
    The summons to the defendant and garnishee is to be served as in other cases. The capias against the garnishee is to be served by taking his body.
    By section 16 it is provided, that when property or effects of any description are attached in the hands of a garnishee, they may be released, and remain in his possession, on his giving bond. And by section 17, in case of a debt attached in his hands, his body is to be released from custody, on his giving alike bond. By section IS, in the same cases mentioned in sections 16 and 17, if he has been taken with a capias,,he may be released, on giving bond.
    If, therefore, the garnishee has in his possession any visible and movable properly of the defendant, when there is no clause of capias, the property is attached by the officer’s going where the property is, and declaring, in the presence of a citizen, that he attaches it. He then,takes it in possession, and reads the writ to the garnishee If the garnishee wishes to retain the possession of the property, he gives bond. But when a debt or indebtedness is to be attached, the officer goes to the garnishee, declares that he attaches the debt, and, as it is •intangible, and he cannot otherwise secure it to abide the event of the suit, the statute requires him to take the body of the garnishee, releasing it only on the execution of a bond.
    If it be contended that the officer can only take the body of the garnishee where there is a clause of capias, then it must be admitted that section 17 is useless and absurd. It is true that section 18 is inaccurately worded; but it is the true rule of construction, to make every provision of the statute stand, if practicable. Sections 16 and 17 show what is to be done where either visible property or a mere indebtedness is attached; and section 17 defines what shall be the course where the garnishee is taken with a capias, instead of being summoned. It is true that where a debt is attached, the same course is prescribed, whether the process against the garnishee be a summons or capias; but neither repetition nor surplusage vitiates. The provisions contained in the three sections might have been more lucidly arranged, and more briefly as well as more clearly expressed; but their meaning is sufficiently obvious.
    Let us then first inquire whether the mere summoning of a garnishee is sufficient, in such a case as the present, to affect his indebtedness by bond, so that the defendant can no longer assign the bond — in other words, whether summoning the garnishee is attaching the debt, for this is the issue presented by the demurrer.
    Such a debt is to be attached by the officer going to the person indebted, and declaring, in the presence of one or more citizens, that he attaches the debt, and by securing it so as to abide the event of the suit. Whether it is necessary also to take the body of the garnishee, is not material to be inquired into, as far as the demurrer is concerned; for the naked fact set up in the replication demurred to, is, that the garnishees were summoned.
    The proceeding in such case is two-fold. Every attachment with garnishee is a double suit — against the defendant and against the garnishee. The Court can only obtain jurisdiction as against a defendant, by the service of personal process, or some other method pointed out by law. In proceeding by attachment, the jurisdiction is obtained by service in rem. If no property of, or indebtedness to the defendant is found and attached, the Court takes no jurisdiction of the defendant, and its proceedings are invalid. Hence, in order to lay a basis for the jurisdiction as against the defendant, his property or credits must be attached. Having obtained this jurisdiction, and not before, the Court then obtained jurisdiction as against the garnishee, by summoning or taking him.
    The jurisdiction as against the garnishee, is collateral to and dependent on that as against the defendant. The defendant’s rights cannot be affected, unless he has actual or constructive notice of the proceeding. What shall be constructive notice, is fixed only by statutory enactment. In this case, it is the attaching of his property; and the mere summoning of a garnishee is no notice, either actual or constructive, to the defendant.
    The second issue presents the same questions. The plaintiff alleged that the indebtedness was attached, which allegation he undertook to maintain by the return. The return does not sustain it. It fails to show, either that the indebtedness was declared by the sheriff to be attached, or that the bodies of the garnishees were taken. The declaration would not, in our apprehension, be an attaching of the debt. The indebtedness must be secured by the officer. Certainly this object would not be attained either by summoning the garnishee, or by declaring the debt to be attached. The garnishee could depart beyond the jurisdiction, and the debt would follow him; and this consideration shows that the construction for which we contend is correct. Could the jurisdiction of the Court depend upon the volition of the garnishee? if the defendant’s property is attached, and in custodia legis, and subject to the process of the Court, the Court has jurisdiction, and enforces its judgment against the property. But if by a fiction of law, declaring a debt to be attached, is to be taken as an acttial levy and seizure, will the Court still retain jurisdiction, when the indebtedness, which is the basis of the jurisdiction, has accompanied the person of the garnishee beyond the limits of the State? The only ground on which the jurisdiction can be sustained, is, that the Court has laid its hand on the property of the defendant, and will subject it to the claims of the creditor; for it is this property, and this alone, whiclqis operated on by the judgment. Thus Stoky says, that the existence of the property so seized or attached within the Territory, constitutes a just ground of proceeding, to enforce the rights of the plaintiff, to the extent of subjecting such property to execution upon the decree or judgment. Conf. of Laws, 461. it naturally results, that if the Legislature intended to effect this end, they would provide that the Court should be enabled to hold and keep within its jurisdiction the property or indebtedness attached. For, unless such power were given to the Court, the exercise of its jurisdiction would be a futile act.
    So again he says, that if the defendant does not appear and contest the suit, it is to be treated, to all intents and purposes, as a mere proceeding in rein, and not as personally binding on the party as a decree or judgment in personam — it only binds the property seized or attached in the suit. ib. Thus, the jurisdiction in Scotland is said to be acquired by arresting the defendant’s goods, and so fixing them in the Territory. 3 Burge’s Comm, on Col. and For. Law, 1016, 1019, cited in Conf. of Laws, 2d ed., p. 462.
    So Stoky says again, that in this class of cases, we are especially to bear in mind, that to make any judgment effectual, the Court must possess and exercise a rightful jurisdiction over the res, and also over the person, at least so far as the res is concerned; otherwise, it will be disregarded. Conf. of Laws, 496.
    We do not question that the Legislature had the power to declare, as has been done in other States, that- summoning the garnishee should be taken and considered as an attachment of the property and credits of the defendant. But we contend that no such declaration has been made; that our statute has fixed but one method of attaching incase of indebtedness, and but one where property is found; and that no jurisdiction can be obtained, except in the precise method pointed out by the statute.
    TkapNali and Cocke, Contra:

    If the service of the garnishment binds the property in the hands of the garnishee, so that the debtor cannot assign, transfer, or alien it,"and thereby vest the legal title in another, nor the garnishee part from the possession or custody of it without becoming responsible therefor, then the Court very properly overruled the demurrer; for the matter alleged in the first replication would be a good bar to the claim set up in the interpleader. That such is the fact, we think manifest from both the letter and spirit of the statute.
    The Court will find, upon examining the form of the writ prescribed by our statute, thaj; the clause of attachment, of garnishment, the summons to the defendant and garnishee, are all blended together, forming component parts of one entire writ, called an attachment. Each part has its appropriate office to fulfil; and all are designed and framed to attain one common object, by different means, shaped so as to meet the various exigencies that may arise in practice. It is evident from the statute, that the clause of attachment was designed for those cases alone in which the property and effects of the absent or absconding debtor were known and ascertained, so that the sheriff could levy upon and take them into actual possession. This is manifest from the 9th, 16th, and 19th sections; the first of which provides, that the. “ property, money, or effects attached, shall remain in the officer’s hands or,possession, and be by him secured, to abide the event of the judgment of the Court. The second points out the means by which the property or effects attached in the hands or possession of a garnishee, may be released from the attachment, and remain in his possession. The last provides that the officer executing the writ, shall, on making his return, accompany it with a schedule of the property attached. These sections clearly indicate that the attachment must be levied upon some specific and ascertained property, so that the officer can identify and take it into bis possession, and annex a schedule thereof to the return which he makes upon the writ.
    If the statute had stopped here, it would have fallen very far short of accomplishing the purposes it was evidently designed to answer. In practice, we know it often happens that a creditor may have just cause to believe that property, credits, or effects, belonging to the debtor, are in the hands of a third person, and yet he could not possibly know how much, or so describe and ascertain the property, as that the sheriff could levy his attachment upon it, take it into his possession, or make the return required by law.
    It was to provide for such contingencies, that the statute has inserted in the writ a clause of garnishment, by which the plaintiff1 is enabled to compel' a full and true disclosure, from the garnishee, of all the property or effects belonging to the defendant in his hands. And we maintain that the service of the garnishment binds all the property in the hands of the garnishee, as fully and as effectually as a levy of the attachment upon the property would have dope. And after such service, the debtor cannot sell or assign the property, so as to vest in the purchaser or assignee a legal title. Nor can the garnishee, in such a case, deliver it up to the debtor, or to his vendee or assignee, without himself becoming responsible to the plaintiff for the value thereof.
    The 26th section provides that the plaintiff “may exhibit and file allegations and interrogatories in writing, upon which he may be desirous to obtain the answer of any garnishee, touching the lands and tenements, goods, chattels, moneys, credits, and effects of the defendant, and the value thereof, in his possession, custody, or charge, or from him due and owing to the defendant, al ihe time of the service of such writ, or at any time after, or which may thereafter become due.”
    The 27th section makes it the duty of the garnishee to exhibit and file, under his oath, fullj direct, and true answers to all and singular the allegations and interrogatories, as filed by the plaintiff.
    Can it be supposed that the statute designed, by these provisions, nothing more than to give the plaintiff a mere naked right of discovery? Why require the garnishee, under a penalty, to make a full disclosure - of all the property and effects of the debtor in his hands at the service of the writ, or which thereafter may have come into his possession? Why provide, as it does in the 33d section, for the trial of the truth of the answer, if the service of the writ has no other or greater efficacy than to gratify an unprofitable curiosity on the part of the plaintiff, leaving the debtor still at liberty to sell or assign the property, and the garnishee to deliver it over, without incurring any responsibility? It seems to us that these and other provisions, which we shall presently refer to, would be useless and absurd, if nothing more is obtained from them than a naked discovery. In many cases, such a discovery would be of little profit to the plaintiff, if the writ created no lien in his favor upon the property of the defendant in the hands of the garnishée at the time of its service. And it would be worse than folly in him, to go through the expensive process of compelling this discovery, .if the debtor could make a valid transfer of the property, and the garnishee part with the possession with impunity, at any time after the service of the writ.
    The process of attachment, with all its incidents, is based upon the supposition that the defendant is either absent from the State, or that he is about to abscond and conceal and put away his property, so as to defeat the payment of his just debts. Aud how, in the latter case, could he be arrested in the execution of his fraudulent purpose, if the service of garnishment created no.lien upon the property, so as to detain it in the hands of the garnishee, for the benefit of the attaching creditor. Such, to our minds, is obviously the spirit and intention of the statute. And this we think is clearly manifest from the 34th and 35th sections, which expressly give to the plaintiff in the attachment an absolute and unqualified right to take judgment against the garnishee, for the amount of debts, due from him to the defendant, the moneys, and the value of the goods, chattels and effects, as discovered by his answer, and the Court is directed to award execution therefor accordingly. To what lime does the discovery^ by the answer here referred to, relate ? Is it confined to the date of the filing of the answer, or must it refer back and embrace the whole period from the service of the writ ? Evidently the latter, the 26th section, already referred to, is distinct and positive on this point. How then, we would ask, can the plaintiff have the absolute right to take judgment against the garnishee, for the value of the goods, chattels and effects confessed by his answer to be in his possession at the service of the writ, and have execution therefor, and. the debtor, at the same time, have a right to make a valid and legal transfer of the same property, to a third person, and thereby discharge the garnishee from all liability in passing it over to the assignee ? These rights are inconsistent and contradictory: both cannot exist. In the case before the Court, the answer, as well as the pleadings, shows that the note in question was the property of Francis, and the money due to him, when the garnishment was served upon Collier and Smith. The law then, as we think we have clearly shown, gives to the plaintiff in the attachment, the right to take his judgment and have execution against the garnishees for the amount by them at that time owing to Francis. And this right cannot be defeated by the subsequent transfer of the note to Desha: Suppose the garnishees, Collier and Smith, had paid the amount of the note in question to Francis, after the garnishment had been executed upon them, could they plead this payment in bar of the right of the plaintiffs, to take judgment against them, for the sum admitted to be due to Francis, at the service of the writ ? Such a construction, we think, is manifestly repugnant to that portion of the Statute already referred to, which gives to the plaintiff the absolute right in such a case to take judgment against the garnishee. It is evidently the intention of the law,'to detain the effects of the debtor in the hands of the' garnishee, so that it may be made subject to the claim of the attaching creditor. And if the garnishee parts with the property, he does it in his own wrong, and will be compelled to answer for the value thereof to the plaintiff, out of his own estate. ' If then the garnishees, under such circumstances, could not, legally and rightfully, make payment of the note to Francis, how could they discharge themselves by payment to the assignee 1 The right of the plaintiff, to have the property subjected to the satisfaction of his demand, had already accrued, and the defendant could not divest that right by a subsequent assignment. It is a well settled principle of law, that the assignee of a note or obligation, takes it subject to all the legal and equitable consequences, which attached to it in the hands of the assignor, at the time of the assignment. ■ If the garnishees could not rightfully make payment to Francis, at the time of the assignment, they could not legally make payment to the assignees afterwards; for, by the assignment, Desha acquired just the legal right, which Francis had and nothing more; and no rights or interests, which others might have in the note or to its proceeds as against Francis, could be divested by the subsequent transfer to Desha. The matter, therefore, alleged in the first replication, is a good and sufficient answer to the interpleader, and the Court very properly overruled the demurrer.
    Upon the issue joined on the second replication, the Circuit Court found that the indebtedness in the interpleader mentioned, had been attached in the hands of the garnishee:- and we submit to the Court, whether the return of the Sheriff does not fully sustain this finding.
   Dickinson, J.,

delivered the opinion of the Court:

The only question raised by the pleadings, and upon which the parties rest their case, is, whether there was such an execution and service of the writ of attachment, upon the garnishees, Collier and Smith, as to divest Francis of his right to exercise ownership over the property. As the proceeding by attachment- is an innovation upon the common law, the party claiming to avail himself of its privileges, will not be permitted to travel out of the Statute, by which it is regulated. It is a settled principle that the property of absent debtors is liable by legislation to the payment of debts. Much of the credit, which an individual obtains, is often derived from the money due to him, as they are considered liable to the payment of his debts. Thus the credit operations of the country are made safer, and commercial transactions beneficially extended. To enable us to come to a correct couclusion, we have given the whole subject a careful investigation. Although the interest of several different parties is involved in this case, yet we are not authorized to look any farther than as the facts are presented on demurrer. There is no discrepancy in the several provisions of the Statute, nor any uncertainty as to the proper course to be pursued.

• If the Sheriff, to whom the writ of attachment is directed, finds sufficient property to secure the debt as sworn to, with interest and cost of suit, he should proceed no farther. But if, in his opinion, there is still a deficiency, he is authorized and required, to summon every person, who may be in possession of any other property, or who may be indebted to the defendant, to make up such deficiency.

If lands or tenements, or other tangible and movable property be attached, not being found in the possession of any person, the writ can in such case be executed as to the former, only by the officer’s going to the place, where such lands or tenements are situated: and there, in the presence of one or more citizens of the county, declaring that he attaches the same: and as to the latter, by his going to the place where the property may be found, and there making the like declaration in the same manner, and also taking such property in possession. ,

If a person, whether named in the writ or not, is supposed to have in his possession property of the defendant, or is supposed to be indebted to him, the Sheriff must go to such person, and make the same declaration, stating what is attached, whether property, and of what kind, or debts; and also serve upon such person, (whether particularly named in the writ of attachment or not) a summons, by reading the same in his presence and hearing, or delivering him a copy thereof. If such person is absent and the summons cannot be served personally upon him, a copy is to be left at his usual place of residence, with some white member of the family over the age of fifteen years, and informing him of the contents of the same. Still the same declaration in the presence of one or more citizens of the county as to what is attached, is necessary. And he must return with the writ a schedule of the property attached, and the names of the persons, in whose presence the writ is executed. (Secs. 6, 8, 11, 19, ch. 13, Rev. St.) The schedule removes any doubt as to the extent of the attachment, and by giving the names of the persons in whose presence the act is done, witnesses may, if necessary, be found to substantiate the truth or falsity of the return. If these requisites of the Statute are complied with, the attachment of a debt in such case in the hands of a garnishee, would fix it there in favor of the attaching creditor, and the debtor could not afterwards pay it over, except in conformity to the judgment of the Court. The attaching creditor would, in siy;h case, acquire a lien upon the debt, binding upon all parties interested; and which the Courts would not only recognize, but the garnishee would be protected pro tanto under a recovery had in virtue of the attachment, and could plead such recovery in bar of any future action.

It is essential to the protection of the rights of the garnishees, as well as of the defendant, that the plaintiff in attachment should not be permitted to depart from the rules laid down in the Statute. Does the replication show that the plaintiffs below conformed to the Statute ? There is no allegation that there was a schedule of the property attached; no averment, that at the time of the service of the summons on Collier and Smith, the Sheriff declared in the presence of one or more citizens of the county, that he attached the debt due by them to Francis. All of which we deem it essential for the Sheriff to have done, before the attaching creditors could acquire any lien upon the debt, or divest Francis of his right to control the writing obligatory. Having omitted to do this, we are clearly of opinion that the replication was defective in not showing a sufficient service of the writ upon the garnishees; and that, therefore, the demurrer ought to have been sustained.

Judgment reversed, and case remanded to said Court to enter judgment in favor of the plaintiff in error upon his demurrer to the first replication of the defendants in error to his interpleader, and grant the parties leave to amend their pleadings, if asked for. And for further proceedings.


source: Caselaw Access Project

author: Dickinson J.,

license: Public Domain

text:
    Johnson et al. against The Branch of the State Bank at Batesville.
    Ekeok to Independence Circuit Court.

    Under the Territorial Statute, where the writ was served by leaving a copy at the* residence of the defendant, it was necessary for the return to show that the person with whom it was left was over 15 years of age.
    Judgment by default. The writ was issued and served under the Territorial Statute. The Sheriff returned, that he executed the writ and declaration on some of the defendants, by reading; and on one other, “by leaving a copy of the declaration and writ with one of his family at his residence, and informing them the contents thereof, as the law directs.”
    ByeRS, for plaintiffs in error:
    By reference to Steele & McCampheWs Digest, pages 316, 317, we find it provided, that “The service of a summons shall be by reading the writ, declaration, petition or statement, to the defendant, or delivering him a copy thereof, or leaving such copy at his usual place of abode, with some person of the family above the age of fifteen years, and informing such person of the contents thereof, such service to be atleast fifteen days before the return day thereof.”
    This Court, in the case of Gilbreath vs. Kuykendall, 1 Ark. Rep. 52, say that “this statutory provision furnishes the only rule by which the officer executing the summons must be governed. He must conform to the directions there given, and any material variation therefrom, will vitiate the service.”
    This service is not in conformity with the Statute. It does not show that it was executed within Randolph county. Neither does it show that the writ and declaration were read to the plaintiffs in error. The return only states that they were read in their presence and hearing. The service upon John L. Johnson is certainly bad. The Statute requires, when service is made by leaving a copy at the usual place of abode, it shall be left with some one of the family over fifteen years of age, and the contents explained, &c. This does not appear upon the return, and according to the rule laid down in the case of Gilbreath vs. Kuykendall, this case must be reversed.
    Hempstead & Johnson, Contra :

   Dickinson J.,

delivered the opinion of the Court:

The old Statute, Steele & McCampbell’s, was in force at the time this suit was instituted, and is imperative that, if the service by the Sheriff is not personal, the copy must be left at the usual place of abode of the defendant with some person of the family' above the age of fifteen years. The return does not show that the person, with whom it was left, was above fifteen years of age. The same question was decided in the case of Gilbreth vs. Kuykendall, 1 Ark. Rep. 50: and in accordance with the decision in that case, the judgment of the Circuit Court of independence county must be reversed. The other questions raised cannot properly be looked into as they are now presented.

The case will therefore be remanded to the Court from whence it came to be proceeded in according to law, at the next regular term of that Court, as if the defendants below were all duly served with .process returnable thereto.


author: DicKinson, J.,

text:
    Johnstons against The State.
    Ekeor to Hempstead Circuit Court.

    Judgment cannot be taken, upon the forfeiture of a recognizance, without the intervention of any process or proceeding against the recognizors.
    Although we have no statute specially defining the mode of proceeding, yet doubtless the obligation of such a recognizance can be enforced.
    But the State, like every other suitor, is bound to adopt some form or remedy allowed or prescribed by law; and the recognizors must have actual or constructive notice, or there can be no valid judgment.
    And whether the recognizance has the force of a judgment, is not important, as to this question, because, if it has, an additional judgment is unnecessary and improper.
    Philip P. Johnston, one of the plaintifls in error, was indicted in Clark Circuit Court, for shooting. The venue was changed, at October Term, 1840, on application of defendant, to Hempstead county 5 and, as appears by the record of the latter Court, at April Term, 1841, the defendant and Albert G. Johnston, his security in recognizance, were called, and failed to appear; upon which, on motion of the Prosecuting Attorney, the recognizance was forfeited.
    The record then states, that it appearing to the Court that Philip P. Johnston, and Albert G. Johnston, as his security, at October Term, 1840, of Clark Circuit Court, entered into recognizance to the State, in the sum of $500 each, to be levied, &c., upon condition that Philip P. Johnston would appear at Hempstead Circuit Court, at April Term, 1841, at the Court-house in Washington, on the first Monday of April, and auswer the State, &c., and not depart, &c.; and that Philip P. Johnston has failed to appear; wherefore, the recognizance is forfeited. It was therefore considered, that the State recover of Philip P. Johnston the sum of $500, and of Albert G. Johnston $500, and of both all the cost in and about the cause expended. From this judgment they appealed.
    Pike, for plaintiffs in error:
    The judgment is somewhat novel in form, and certainly illegal in awarding all the costs of the cause against the plaintiffs in error. But this point is not the only one to be decided in the case. The Court has hitherto very properly waived any decision as to the proper mode to be pursued by the State, in proceeding upon forfeited recognizances; and the question is therefore entirely an open one. ■ The method of proceeding against bail in civil suits, is definitely fixed, both by common law and our own statutes; but as to bail in criminal cases, no provision has been made by the Legislature.
    As we do not consider the recognizance, or bond, entered into by the parties as being a part of the record, we can make no objection to it. If it w'ere legally before the Court, we should submit whether it is in fact a recognizance, legally entered of record. The mere entry of it upon the record, apart from the bond itself, is clearly invalid in many particulars; and it is for this reason that the decision of the Court on the question legitimately presented by the record, becomes important.
    The principal question is, whether the State was entitled, upon the failure to appear of a person bound in recognizance, to take judgment final against him and his securities, at the same term, without notice?
    This Court has so often declared that no valid judgment can be pronounced against any person, in any Court of this State, unless he is first properly notified of the proceeding, that there is but one method of escape from the effect of those decisions in the present case, and that is, to hold the recognizance to have of itself the effect of a judgment of record; and this seems to have been the ground on which the Court below proceeded.
    We do not think it particularly important to explore the ancient law-books for the obsolete learning on the subject of statutes staple and statutes merchant, by which the attorney for the State was governed in the Court below. We do not think the principles of law on those recognizances peculiarly applicable to a recognizance .of bail.
    A recognizance in a civil case is an obligation of record. So it is in a criminal case. 1 Ch. Cr. Law, 90. But in a civil case in England, an action of debt or scire facias lay on it. Petersdorff on Bail, 362. But the method of proceeding in England on a recognizance in a criminal case, was different. If, by the non-appearance of the prosecutor or witness at the trial, (and so of the prisoner), the recognizance became forfeited, it was considered absolute, and being es-treated, (that is, taken out from among the other records,) and.sent up to the Exchequer, the party became an absolute debtor to the Crown, for the sum or penalty mentioned in the recognizance. 1 Ch. Cr. Law, 92; Petersdorff on Bail, 536; Bac. Ab., Bail in Cr. Cases, L. They were there enforced by execution. 3?ut undeniably an action of debt or a scire facias could in England be maintained on a recognizance, by the sovereign; for at common law, the King could maintain any action adapted to his case, which a subject, under like circumstances, might maintain. 3 -, 136; Com. vs. Green, 12 Mass., 1. And in Rastall's Entries, title Debt, are several precedents of debt on recognizance, and one of them is by the King, on a recognizance to appear before a certain Court, and in the mean time to keep the peace. Rast. Ent., 192.
    A recognizance is admitted to have many of the attributes of a judgment. It is an acknowledgment of a debt of record; it binds the lands of the cognizor; and execution could issue on it from the Exchequer, as on a judgment.
    In New-York, where, prior to 1818, such recognizances, when forfeited, were sent into the Court of Exchequer, and enforced by execution, the laws of 1818 gave the Court of Common Pleas the same powers relative to the collection and remission of fines and forfeited recognizances, as were by law vested in the Exchequer; and the Supreme Court of New-York held that, consequently, execution might issue out of the Court of Common Pleas, upon the .forfeiture, as upon a judgment, but that an action would also lie upon the recognizance. The People vs. Van Eps, 4 Wend., 387.
    But in this State, we have never had any Court of Exchequer, nor can recognizances in the Circuit Court be estreated. No statute gives to our Circuit Courts the powers exercised in England by the Court of Exchequer; nor, if we had a Court of Exchequer, would it necessarily possess all the powers and authority of the English Court of Exchequer. For example, the Court of Exchequer in England could remit the penalty of a forfeited recognizance; yet it cannot be pretended that our Circuit Court has any such power.
    Because the Court of K. B. could make a rule for estreating a recognizance, and thereupon execution would issue upon it out of the Court of Exchequer, does it result that our Circuit Court, which possesses such jurisdiction as the Constitution confers, and no more, has united in itself the functions of both Courts, and can itself issue executions?
    And again, if the Circuit Court has this double nature, still, by the practice of the Exchequer, no judgment could be entered, but execution merely issue on the recognizance. By what precedent of English practice could that Court proceed to render a formal judgment, on a recognizance which was already in law a judgment?
    But we incline to believe that our own statutes are sufficiently explicit upon this subject, and do not authorize the judgment entered in this case.
    The statute of the Louisiana Territory, formerly in force here, passed Nov. 4, 180S, provided, that when any person should forfeit a recognizance of peace, good behaviour, or appearance, for any cause whatever, the recognizance should be sued for, and judgment in the Court of Common Pleas for the district, or in the General Court, if the recognizance had been certified to that Court. Ter. Nig., 192.
    This statute has, it is true, been repealed; yet it is a clear rule as to statutes, that one which is repealed may be referred to in a collateral manner, to ascertain the construction of a later statute. But there is another ground upon which this statute of 1808 settles the question.
    - It is laid down lo be, as a maxim, ' generally true, that if an affirmative statute, which is introductive of a new law, direct a thing to be done in a certain manner, that thing shall not,.although there are no negative words, be done in any other manner. Devarris on Stat., 641; Hob., 298; Str., 1125; Rex vs. Stubbs, 2 T. R., 395.
    Every affirmative statute is a repeal, by implication, of a precedent affirmative statute, so far as it is contrary thereto; for, leges posteriores priores contrarias abrogant. 11 Co., 63, a.

    Lord Kenyon said that where affirmative words are peremptory, as that “ the forms of proceeding set forth in*the schedule annexed shall be used,” he could not say that those words were merely directory,
      and he held a material variance.from the form prescribed, fatal. In the Territorial statutes, it is provided that all recognizances shall he sued on. Damson vs. Gill, 1 East., 64.
    Penal statutes are always to be construed strictly, and cannot be extended by construction, (Devarris, 736, 737); and if a'penalty given by a statute is to be recovered in a Court of record, it can only be recovered in one of the Superior Courts at Westminster; for being a penal statute, it is to be construed strictly, and these are the Courts^ in which the King’s Attorney General is supposed to attend. Walwyn vs. Smith, 1 Salk., 178; Devarris, 766; Gregory's case, 6 Co., 19. So where a statute gives power to justices of the peace “ to hear and determine an offence in a summary way, it is necessarily implied and supposed, .as a part of natural justice, that the party be first cited by summons, and have opportunity to be heard and answer for himself.” 1 Hawk. C. 64, 5, 60. ,
    We therefore believe, that even if the common law bad been in force in this country prior to the act of 1808, the consequence of the passage of that act would have been, that so much of the common law as authorized execution to issue on recognizances, would have been abrogated by that statute, and, by necessary implication, repealed.
    But the common law formed no part of the jurisprudence of the Territory until 1816; and then no part of it was adopted which was contrary to the then existing laws of the Territory. And the Spanish law, before that time in force, allowed no execution to issue against bail in criminal matters, except after suit and judgment.
    Although the Territorial statute just quoted has been repealed, still there has been no law revived by that repeal, which would authorize this judgment. While this Territorial statute was in force, (for it was not repealed until the Revised Code went into operation, in 1839), the law of Criminal Proceedings in the Revised Code was passed, and was in force from the first day of March, 1838.
    By the ninth section of that chapter, (Rev. Stat., 289), where a recognizance to keep the peace is broken, the Court is directed to forfeit the recognizance, and order it to be prosecuted, unless reasonable excuse for the default be shown. By the 13th section, it is made the duty of the Attorney for the State “to put such recognizances in suit,” and the 15th section directs in what manner the breach must be assigned.
    So by section 31 of Chap. 32, a recognizance taken by a coroner, it is said, shall be conclusive evidence to support a scire facias or an action of debt. There-are no other provisions, so far as we are aware, pointing out any method of proceeding on forfeited recognizances.
    We think that we are entitled to conclude, that under the Territorial Government, that part of the common law or statutes of England which authorized execution forthwith to issue on a recognizance, when estreated and taken into the Exchequer, never was in force; that the Spanish law authorized no proceeding of the kind, nor gave any such efficacy to a recognizance; that the statute of 1808 in terms precluded such a consequence; that, consequently, the adoption of certain parts of the common law in 1816, warranted no such proceeding, because so much of the common law as did warrant it, was repugnant to the statute of 1808, and inconsistent with the pre-existing laws; that after the adoption of the Constitution, the statute of 1808 still continued in force, and was confirmed by the declaratory portion of the chapter on criminal proceedings; and that this proceeding receives no warrant from that chapter of the Revised Statutes which adopts the common law, because, if in that particular the common law is adopted, it is repugnant to the pre-existing law of criminal proceedings.
    We will not waste time by delaying, to argue that the course pursued in this case is inconsistent with the general spirit of our laws, and in derogation of the general rights of the citizen; for that is manifest, and cannot be controverted. We have merely to remark, in conclusion, that by law, every person against whom final judgment is rendered, has a right to his writ of error of appeal, and that if this proceeding be sanctioned, that right becomes nugatory, because, upon the writ of error or appeal, the recognizance does not come up as part of the record, nor can the defendant by any means except and make it part of the record; but the judgment must in each case be affirmed, whether there be in law any recognizance or not. The course of proceeding in England obviated any such difficulty, because the court of the first instance could not issue the execution, but the recognizance was estreated at once into the highest court of the realm, and the party there had time to move to remit the penalty.
    There is certainly no statutory provision, making bail in criminal cases responsible in any other manner, or to any greater extent, than in civil cases; and the construction of our judicial system forbids and prevents the adoption of the English practice. We submit, therefore, that the State’s only remedy is by scire facias^ or action of debt.
    R. W. Johnson, Atto. Gen., Contra.

   DicKinson, J.,

delivered the opinion of the Court:

From the record before us, it appears that the State obtained judgment against the plaintiffs in error, purporting to be founded on a recognizance entered into by them, for the appearance of one of them to answer an indictment then pending against him. We have no statute specially defining the mode of proceeding to enforce the obligation of such recognizors, when the condition is broken; but that such obligation can be enforced, there is no doubt. Yet, in the proceeding to enforce it, the State, as well as every other suitor who seeks legal redress, is bound to adopt some form of remedy allowed or prescribed by law. In the present case, no process or pleading whatever is shown by the record; nor is it shown that the same were dispensed with by the plaintiffs in error, who do not in any wise appear to have had actual or constructive notice of the proceeding against them on the recognizance, without which, according to the repeated adjudication of this Court, no valid judgment could be entered against them. And if, as the argument of the counsel on the part of the plaintiffs seems to suppose, the recognizance was considered as possessing per se all the attributes of a judgment at law, the formal entering of judgment thereupon, as appears to have been done in this case, would be both unnecessary and improper, as tending not only to increase the cost, but also to vex and harass the parties, which the law will not permit, where'no beneficial object is to be thereby attained.

It therefore becomes unnecessary for us to inquire whether or not such recognizance possesses in law the efficacy .of a judgment, or whether it does or does not warrant execution against the recognizors, where the condition is not complied with; because it appears affirmatively from the record, that the State has not proceeded in this manner to enforce the obligation of the plaintiffs in error. The judgment appears, therefore, from every view in which it can be legally considered, as wholly unauthorized by law. The judgment of the Circuit Court must therefore be reversed, and this case remanded to the Circuit Court of Hempstead county, to be there proceeded in by that Court, at the next regular term thereof, in accordance with the rule established in the case of Gilbreath vs. Kuykendall, 1 Ark. Rep., 50; and that such other and further proceedings be had therein as may be in conformity with law and the opinion here expressed.


author: Dickinson, J.,

text:
    James C. Woods, Ex Parte.
    When cases cannot by law be brought from the inferior Courts into the Circuit Court by appeal &c., the superintending control of the Supreme Court may, if necessary be executed for other objects and purposes, as well as in aid of their appellative jurisdiction.
    In either case it acts directly upon the tribunal: and if necessary to effect this object, the Supreme Court, or one of the Judges, may issue writs of error and supersedeas, certiorari, and habeas corpus, mandamus and quo warranto, or other remedical writs.
    Every act of a Court of competent jurisdiction shall be presumed tobe rightly done until the contrary appears: and this rule applies to every proceeding, from the institution to the final termination of the suit.
    Whoever would complain of the proceedings of a Court must do it in such time as is allowed by law. If he objects to the mode in which he is brought into Court, he must do so before he submits to the process. If he pleads to the action generally, all irregularities, provided the Court has jurisdiction of the subject matter, are waived, and the Court can decide upon the rights of the parties.
    The judgment is conclusive, unless it appears affirmatively upon the record, that the plaintiff has no title to the thing demanded, or, that in rendering judgment the Court has erred in law.
    So long as the judgment remains in force, the plaintiff has a right to process to execute it. And the errois of the Court can only be examined by an appellate power, within the time, and in the manner fixed by law.
    But this is upon the supposition, that, however erroneous the proceedings maybe, they are founded upon some notice, either express or implied: and, that the Court, having first lawfully gained jurisdiction, its exercise must be respected, until an appellate tribunal shall reverse or annul i ts acts.
    The powers of the Supreme Court are two-fold — ordinary and extraordinary. Ordinary —those general powers of adjudicating between parties upon matters in which the inferior Courts have, in the manner prescribed by law exercised their judgment and discretion; and where the judgments of these Courts are authorized upon the parties until reversed: Extraordinary or special — where an inferior Court has passed the limits of its jurisdiction, by either assuming powers not conferred by the Constitution, or by an exercise of judgment or discretion in a manner not recognized by, or in contradiction to, the Constitution and laws.
    The record, to bind the parties, must show, not only that the Court has jurisdiction over the subject matter and the parties; but that it has gained such jurisdiction, and exercised its powers, in conformity to law. The mode is an essential ingredient, indeed a condition on which the power depends. In such case the act is binding or nugatory, as it pursues the mode oris done in disregard of it.
    The boundary between an error in judgment, and the usurpation of power, is too broadly marked to be mistaken. The one is reversible, within a fixed time — the other is an absolute nullity, irreversible for error. An execution, issued on a judgment obtained without process or notice, is such a nullity.
    The powers of the Supreme Court are sufficiently broad and expansive to reach every case, and correct every illegal judicial process.
    An execution issued by a justice of the peace, on a judgment obtained without process or notice, is illegal; and may be arrested by a writ of supersedeas, which may be issued cither by the Supreme Court or one of the Judges.
    Where the order for a supersedeas directs the proceedings to be immediately stayed, the execution having been improvidently and illegally issued; and the writ only directs them to be suspended, omitting to set forth the facts, for reason of which they are to be stayed, it is a variance for which the writ will be quashed.

      This matter came up on motion. The facts are stated in the opinion of the Court.
   Dickinson, J.,

delivered the opinion of the Court:

It appears that Woods obtained a judgment before a justice of the peace against Headington, and issued process of garnishment against1 John and James McQuaid; both of whom were represented to be indebted to Headington. The process was never served upon John McQuaid, nor any notice given him of the proceedings instituted : judgment however was rendered against both, as by default.

The Statute declares that the writ, if issued by a justice, shall be directed to the proper constable, and shall be served and returned in the same manner as writs of summons; viz: by reading the same to the defendant, or delivering him a copy, or by leaving such copy at bis usual place of abode, with some white person, who is a member of his family over the age of 15 years: that there shall be at least five days service, and that the defendant shall have the right to appeal from the judgment of thejustice to the Circuit Court at any time within fifteen days from entering the judgment.

Execution was issued upon the judgment against both John and James McQuaid. On the petition of John McQuaid setting forth these facts, the Chief Justice granted an order directed to the clerk of this Court requiring him to issue a writ of Supersedeas in the usual form to stay all further proceedings on the execution issued and to return the same — it having been improvidently and irregularly issued. The right to make the order and issue the writ is controverted and a motion made to set them aside: and this brings us first, to the consideration of the powers vested in this Court and the judges severally, by the 2d section of the 6th article of the Constitution of this State.

The Supreme Court, except in cases otherwise directed by the Constitution, has appellate jurisdiction only, which shall be co-extensive with the State; which however may, from time to time, be regulated and restricted by law. It is also given a superintending control over all the inferior Courts of law and equity, with power to issue writs of error and supersedeas, certiorari and habas corpus, mandamus and quo warranto, and other remedial writs, and to hear and determine the same. And the Judges are severally empowered to issue any of the aforesaid writs.

The real question arising in this case is much broader, and of a more important character, from its bearing upon individual rights, than any perhaps now pending before us.

The Constitution, in investing this Court with the powers specified, intended to accomplish a great political object. Its design was not so much to prevent injustice or injury in one case, or in successive single cases,- as it was to make salutary provisions, which, in their operation, should give security and protection to all, and confine each and every department within its proper and legitimate sphere. While it is conceded.that the appellate power conferred upon this Court, may be restricted and regulated by the General Assembly, yet these regulations are to extend only to the time, manner and mode, in which these powers are to be exercised, and must be general and uniform in their bearing and operation throughout the whole State, for the grant being express that it shall be co-extensive with the limits of the State, it cannot be restricted to any one particular part to the exclusion of the rest. The acts regulating the practice of law in the Supreme and Circuit Courts (ch’s. 116, 117, Rev. St.), give the right of appeal and writs of error from the final judgment of the Circuit Court; consequently, where cases cannot by law be brought into the Circuit Court from the inferior Courts by appeal áte., the superintending control, which the Supreme Court possesses, may when necessary be executed for other objects'and purposes, as well as in aid of their appellate jurisdiction; but in either case it acts directly upon the tribunal. And if necessary to effect this object, this Court has power to issue all the above named writs ; or a Judge of this Court may issue any or either of them.

But was the writ issued in this case, and the order made by the Chief Justice within the scope of his authority 1

The judgment was given by a justice of the peace, duly and regularly commissioned : and it is a principle of law well settled, that every act of a Court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears. This rule applies to every proceeding from the institution to the final termination of a suit. And whoever would complain of the proceedings of a Court, must do it in such manner as is allowed him by law. If he objects tp the mode in which he is brought into Court, he must do so before he submits to the process. If the proceedings against him are not conducted according to the rules of law and of the Court, he must take the necessary steps to set them aside. Or if there is any defect in the form or manner in which he is sued, he may assign those defects specially, and the Court will not hold him answerable till those defects are remedied. But if he pleads to the action generally, all irregularities, provided the Court has jurisdiction of the subject matter, are waived, and the Court can decide upon the rights of the parties. The judgment is conclusive, unless it appears affirmatively upon the record, that the plaintiff has no title to the thing demanded, or that in rendering judgment, the Court has erred in law.

So long as the judgment remains in force, the plaintiff has a right to process to execute it. The errors of the Court can only be examined by an appellate power: and by the laws of every country, a time is fixed, and the manner regulated, in which such can be examined, whether in rendering judgment, issuing execution, or enforcing it by sale or imprisonment. And surely it is not unreasonable, that the person, who claims that there is error, shall avail himself of his legal rights in a reasonable time, or that that time should be fixed by law. All those cases however are upon the supposition'that, no matter how erroneous the proceedings may be, yet they are founded upon some notice either express or implied. And that the Court having first lawfully gained jurisdiction, its exercise must be respected until an appellate tribunal shall reverse or annul its acts. Chief Justice MARSHALL in the case of The Mary, 3 Peters Cond. Rep. 312, says, “It is a principle of natural law, of universal obligation, that before the rights of an individual can be bound by a judicial sentence, he shall have notice, actual or implied, of the proceedings against him.”

The Constitution has clearly marked the lines between the different tribunals, and assigned to each certain specified powers. The several statutes have regulated the manner in which those powers shall be exercised, and prescribed the mode, by which,jurisdiction over the persons, as well as the subject matter in controversy, can be obtained where the Court is at all authorized to act: For a Court cannot, even with the consent of the parties, exercise a jurisdiction not conferred upon it, by the Constitution or law of the land; therefore it is always presumed that each Court will not only confine itself within its proper limits, but that it will not attempt to exercise any authority, unless in some manner known to the law. And SO' careful were the framers of the Constitution lest, notwithstanding all the various guards thrown around them, the rights of the citizens might be infringed, that in the 10th section of the Declaration of Rights, they have expressly declared, “That no free man shall be taken or imprisoned, or disseized of his freehold, liberties, or .privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers, or the law of the land.” By which is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.

What then is the relief to which a party is entitled, where it aC-firmatively appears by the record, that none of the ordinary forms of law, by which a Court is authorized to take or exercise jurisdiction over the person or subject matter, has been pursued; and an attempt made to enforce a judgment entered without notice or service of any process, or the privilege of making any defence to the charges against him: and upon which an execution has illegally issued, by which he may be deprived of his liberty or property ?

The powers of the Supreme Court are two-fold, ordinary, and extraordinary. The first, those general powers of adjudicating between parties upon matters, in which the inferior Courts have in the manner prescribed by law, exercised their judgment and discretion, and which is conclusive upon the parties unless reversed. The extraordinary or special powers are clearly where an inferior Court has passed the limits of its jurisdiction, by either usurping powers not conferred by the Constitution from which it derives its existence, or by an exercise of its discretion and judgment in a manner not recognized by, or in contradiction to the Constitution, and the laws of the land. The exercise of a power bj a Court, does not .prove its rightful exercise. The record, to bind the parties, must show, not only that the Court has jurisdiction over the subject matter and the parties to the suit, but that it has gained such jurisdiction, and exercised its powers in conformity to law. For the mode is an essential ingredient, constituting indeed a condition upon which the power depends. In such case the act is binding or nugatory, as it pursues the mode, or is done in disregard of it.

In the case of Voorhies vs. the Bank of the United States, the Court say that, in a judgment “not warranted by the Constitution or laws of the land, ouV most solemn proceedings can confer no right, which is denied to any judicial act under color of law, which can properly be deemed to have been done coram non judice, that is by persons assuming the'judicial function in the given case without lawful authority.” And in these views, so applicable to the case before us, we fully concur.

The boundary between an error in judgment and the usurpation of power, is too broadly marked to be mistaken. The one is reversible by an appellate Court within a certain fixed time; the other is an absolute nullity, reversible for error. The jurisdiction of a Court over persons consists in a right to determine the controversy between them, and ultimately compel them to submit to its decision. The interests of litigants, the peace of society, and the security of private rights, all demand that where a Court acts within its proper sphere, although it may in its judgment err, such acts shall not be disturbed after a cértain limited period. Yet, on the other hand, the great rule established for the protection of every citizen, would be utterly prostrated, if he could have no relief from an execution issued upon a judgment without process or notice, where there has' been no laches on the part of the petitioner, and no appeal to any other tribunal. Such a doctrine would be contrary to every principle of law, reason and justice; and in a government like ours, which professes to extend protection to every individual of every class and condition, ought never to be countenanced or encouraged. Our Constitution and laws we believe fully competent to embrace every case, which may arise. The duty of deciding whether the rights and privileges of the people, or any of them, have been invaded by any of those who have been entrusted with judicial power and- legal authority is one, it is true, of great delicacy, but nevertheless one, from the performance of which this Court will never, we trust, under any circumstances, shrink.

That the party, in this instance, was entitled to relief, there can be no doubt: The only question is whether the mode adopted was the most appropriate. The writs enumerated in the Constitution the Court may hear, try and determine; The judges may severally issue any of them. All the powers of the Court may, it is believed, be exercised through- the writs enumerated, and the terms “and other remedial writs.”' No human sagacity could have foreseen, even if such foresight had been attempted, the circumstances, which would give rise to the exercise of the various powers conferred upon' this Court. This alone would be a sufficient reason for terminating the enumeration of writs mentioned under the term “other remedial writs.” • And to what purpose is our language furnished with general terms, if they cannot supersede the necessity of enumerating the particulars they contain: They are only such other writs as may be proper, needful and appropriate to carry out the general objects of the grant, leaving to the Courts to,say when and in what shape their- interposition for the preservation of life, liberty or property is necessary. Possessing neither the purse nor the sword, and dispensing no patronage, there is less fear to be entertained from the judiciary, than from any other department. It can do little to subvert the liberties of the country, but may do much to avert such a catastrophe.

The term supersedeas is a comprehensive one. Sometimes it is express in its commands, at others only so by implication. In the first, when the person, to whom it is directed, is commanded from the doing of an act therein mentioned; or if the act has already been done, to annul it as far as possible.' In the- second, it only suspends without annulling acts done before its issuing, and which before were lawful. It was used in England for setting aside an erroneous judicial process, &c.; to discharge prisoners: So, if illegally arrested upon mesne or final process: So,if a privileged person. (Finch 453; Cro. Jac. 379; Vaugh. 155; and Bacon Mr. Supersedeas, Vol. 6*) Almost every writ, whether it be of error, habeas corpus, prohibition, and the like, are, in their nature and effects to some extent writs of supersedeas, intimately connected with the appellate jurisdiction of this Court, or in .aid of its superintending and controlling power over the inferior Courts.

Can it be contended that, where there is a total disregard- of all the ordinary and prescribed forms of law on the part of the justice, this ex parte proceeding shall be inviolable 1 Such flagrant injustice is not imputable to either the common or statute law.' The powers of this Court are sufficiently broad and expansive to reach every case, and arrest the further execution of every illegal judicial process; and we will not regard the want of form, where it is not essential to the great ends of justice.

The judicial branch of the Government most certainly does not possess the power of legislating; but in construing the Constitution, they must look to the objects it professes to attain, and not defeat the very end and aim of its creation. The.general powers of this Court may be, and no doubt are sufficiently designated in the Constitution, to effect all its purposes; but the extent of each, it was not in the wisdom of man to foresee and precisely describe., .How they are to operate and exhibit themselves depends upon circumstances: and as they must be forever varying, constitutional questions and doubts must arise so long as the Constitution exists. It must be so adapted as to meet every case which may. arise — protect every interest which may be affected. In doing this; in the administration of justice, matter of form, not absolutely subjected to authority, may well yield to the substantial purposes of justice. This is the more necessary with the highest tribunal, in which the deposite of great confidence, as well as great power, becomes indispensable to the public safety.

Upon the whole, we are of opinion that the order for a supersedeas was rightly made. The supersedeas issued does not however conform to the order, which was that the proceedings on the execution be stayed immediately, the same having been improvidently and illegally issued, whereas the writ only directs the proceedings to be suspended, omitting to set forth the fact why it ought to be stayed. And for this variance, the writ ought to be quashed and set aside. Although we have doubts of the right of Woods to make the motion in this Court to set aside the proceedings had before the Chief Justice, and the writ, we have deemed it best to settle the question of the right of a Judge of this Court to act in such case.


author: Ringo, C. J.,

text:
    Hamilton against Myrick and Williamson.
    Ekeoe to Hempstead Circuit Court.

    An order, by which A. requests B. to pay to 0. $2000, “ out of the money received on my account from the Insurance Office, when collected,” is not a bill of exchange, eitther by the law of England or of this State; and an endorsement of it conveys no right of action to the endorsee.
    Nor can the endorsee set off such instrument, in action by the drawer thereof against him, upon a bond or other consideration.
    A bill of exchange, draft, or check, according to the Law Merchant, must be for money only, and payable at all events, and not on a contingency as to any event on which, or as to the party by or to whom, it is to be paid, or out of a particular fund.
    The statute defining the term “ bill of exchange,” is merely declaratory of the Law Merchant.
    This was an action upon a bond, executed by the defendants to the plaintiff, dated April 22d, 1839, for $¡2190, with interest at 8 per cent, from date, due at 12 months. The defendants craved oyer, and demurred, at October Term, 1840, and their demurrer was sustained, the declaration amended, and the case continued.
    At April Term, 1841, Myrick filed his separate plea of offset, by which he alleged that the plaintiff ought not to maintain his action as to $2000 with interest and damages, because, on the 6th day of May, 1835, Hamilton made an order in writing, addressed to Bránder, McKenna & Wright, requiring them to pay Ira S. Poor, or order, $2000, out of the money received on my account from the Insurance Office, when collected,” endorsed by Poor, on the 8th of March, 1840, to Myrick. That Brander, McKenna & Wright did collect and receive from the Insurance Office the $2000, on the first of May, 1840; and that, on the 6th of May, 1840, the order was presented for payment, and protested, and that notice of protest was given to Hamilton; with the common conclusion of pleas of set-off in assumpsit.
    To this plea Hamilton demurred, and assigned special causes of demurrer. The grounds of demurrer were, that the instrument described in the plea was not a bill of exchange; that Myrick could not sue on it, or use it as an off-set; and that the plea wras separate, while the law would not permit a several debt to be set off against a joint and several one.'

      The Court overruled the demurrer. Hamilton then moved for final judgment against Williamson, who had not pleaded, which motion was overruled. Hamilton abided bj his demurrer, and the Court gave him judgment against the defendants for $250 30, with interest; to which judgment he prosecuted his writ of error.
    Pike, for plaintiff in error:
    The first question is, whether, in a suit against two or more persons, on a joint or several note or bond, where one defendant makes default, the one can interpose as an off-set, by plea, a debt due by the plaintiff to himself individually.
    The statute of set-off provides that where two or more persons are mutually indebted to each other, and one of them commences an action against the other, one debt may be set-off against the other, though such debts may be of a different nature. This provision of our statute contains, in a condensed form, the very provisions of St. 2 Geo. II., ch. 22, sec. 13, and 8 Geo. II., ch. 24, sec. 6; and decisions on one will fully apply to the other.
    Under the English statutes, it is laid down that a joint debt cannot be set-off against a separate one, nor a separate debt against a joint demand, unless it is expressly agreed by the parties that such set-off shall be allowed. Babington on Set-off, 37. Thus, in Ex Parte Harson, 12 Vez., 346, Lord Chancellor Erskine held, that a separate demand, due one of the defendants by the plaintiff, could not be set-off in a suit at law, against that defendant and another, for a joint debt, and that the defendant who was credited must bring his cross suit. The counsel was not hardy enough to dispute but that such was the law, but on all hands broadly admitted it. But the Chancellor admitted the set-off in equity, it being a case of bankruptcy, in which the rule has been relaxed by some judges. The doctrine held by these judges has however been overruled; and it is now settled law, that no debt or demand can be matter of set-off in equity, unless it is so at law. Ex Parte Twogood, 11 Vez., 517; Addis vs. Knight, 2 Meriv., 121; Duncan vs. Lyon, 3 J. C. R., 351; Dale vs. Cook, 4 J. C. R., 11; Gass vs. Stinson, 3 Sumn., 98.
    In Walker vs. Leighton & James, 11 Mass., 140, it was decided that where a joint and several note was sued on, one defendant could not set-off a demand due from the plaintiff to him individually. See also Exec’s of Bourne vs. Thompson et al., Coxe N. J. Rep., 2; Ladue vs. Hart, 4 Wend., 583; Warner vs. Barker, 3 Wend., 400.
    So in Woods vs. Carlisle & Farrar, 6 N. Hamp., 27, the Supreme Court of New-Hampshire held the same doctrine, and rested it on Jones vs. Fleming, 7 B. & C., 217; Walker vs. Leighton, ub. sup.; Wolfe vs. Washburn, 6 Cowen, 261; Montague, 23; and Sherman vs. Crosby, 11 J. R., 70. But they suggested that it might have been different, if the party pleading an off-set had appeared to be a mere surety. But a promisor in a joint and several note, or an obligor in a joint and several bond, cannot aver or show, in a suit at law, that he is a mere surety. He has, by his contract, admitted himself to be subject to all the legal obligations of a principal, and cannot avoid them. He is estopped from denying a character with which he has invested himself. Theobald on Prin. and Surety, 145, 165; Farmers’ Bank vs. Horsey & McLane, 1 Harrington’s Rep., 514; Law vs. E. S. Comp, 4 Vez., 824; Hawkshan vs. Perkins, 2 Swanst., 550.
    The plea of set-off is a plea going to the personal discharge of the party pleading it. Both the defendants in this case certainly could not have pleaded it jointly, unless they had set out an express agreement that the demand against one plaintiff, in favor of one defendant, should be an off-set for both. The statute allows no such plea, because it speaks only of mutual debts. Moreover, upon one defendant pleading such a plea, the plaintiff was entitled to judgment against the other, and so moved in this case, but was refused. Suppose he had taken such judgment, as he was clearly entitled to do, against Williamson. Would Williamson not have had an action against Myrick for contribution? If so, Myrick would lose the debt pleaded as offset, and also have been compelled to pay half the debt sued for. And Hamilton would recover his whole debt of Williamson, and gain as much more by the plea of set-off.
    Unquestionably, when the plea was put in, he could have entered a nolle prosequi as to Myrick, and taken his judgment against Williamson. This is settled by the highest authority. Minor vs. Mechanics’

      Bank, 1 Peters, 74, Having this right, bow could Myrick’s plea affect his right to a judgment by default against Williamson?
    Again, suppose the set-off pleaded were greater than the original demand, and were pleaded by both defendants, but being the debt of but one, could both the defendants have judgment for the excess?
    There is but one method of escaping these difficulties, and that is to adhere to the common law rule, that a several debt cannot be set-off against a. joint or joint and several debt. It is a rule founded alike in law and reason. Thus, Leigh lays it down broadly in his late work on Nisi Prius, that, “ in an action by two persons, the defendant cannot set-off a debt due to him by one of the plaintiffs; nor can one of several defendants set-off a debt due to him alone from the plaintiff.” 1 Leigh N. P., 157. The same doctrine is laid down by Chitty. Chitty on Contracts, 329. So it was decided in Porter vs. Neckervis, 4 Rand., 359.
    In Pennsylvania, where there are no Courts of Chancery, and the principles of equity are administered in suits at law, the rule has been relaxed, as in Steward vs. Coulter, 12 S. & R., 252; Childerston vs. Hammond, 9 ib., 379.
    But this Court must be governed by decisions made by Courts proceeding strictly according to the principles of the common law, and on statutes similar to our own. Thus, in Ross vs. Knight, 4 N. Hamp., 236, the Court held that separate debts due each defendant were not mutual demands, and could not be set-off in a suit against both defendants.
    The very obvious reason why such a set-off could not be pleaded, is the same as is assigned under the English statutes, to wit, that as the statutes expressly confine the right of set-off to cases in which there are mutual debts, therefore it is clear, that as well the debt sought to be recovered as that to be set-off, must be due in the same right.

    The principle for which we contend will also be found to be sustained in» Pitkin vs. Pitkin, 8 Day, 325; Francis vs. Rand, 7 Day, 223; and Palmer vs. Green, 6 Day, 14.
    That the principle is correct upon general reasons, is proven by its pervading other codes; for the law of compensation in the French Code, and the Code of Louisiana, contain the same rule. . Thomas et

      al. vs. Elkins, 4 Mart. R., 78; Hanchard vs. Cole et al., 8 Louis. R., 162; Fagot vs. Porche, 7 Louis. R., 564; Morton vs. Graham, 11 Louis. R., 453. Suppose three or four suits brought by the same plaintiff against A. and different other defendants; suppose be pleads the same offset in each suit; how will justice be done?
    There is another important point upon which the demurrer should have been sustained. What was the character of the instrument set up as the foundation of the offset? It is one of the primary requisites of a bill of exchange, that the money must be payable at all events, not depending on any contingency, either with regard to event, or with regard to the sum out of which payment is to be made. This is the rule in England, and no instrument is a bill of exchange, where the money is payable on a contingency, or out of some particular fund. Ch. on Bills, 154.
    Thus, an order to pay money, provided the terms mentioned in certain letters shall be complied with, or provided J. S. shall not be surrendered to prison within a limited time; Smith vs. Boehm, Gilb. Gas. 93; or, provided S. S. shall not pay the money by a particular day, or the like, Roberts vs. Peake, 1 Burr, 323; Kingston vs. Long, 4 Doug., 9; Morgan vs. Jones, 1 C. & J. 162, 1 Tyrw., 29; Ex Parte Tootle, 4 Ves., 372; Pearson vs. Garrett, 4 Mod., 242; Colchan vs. Cooke, Wittes, 397; Beardsley vs. Baldwin, Str., 1151; Alves vs. Hodgson, 7 T. R., 242; is no bill of exchange.
    So in Hill vs. Halford, in the Exchequer, 2 Bos. & Pul., 413, a written promise to pay a certain sum, on the sale of produce, immediately when sold, of the White Hart, St. Albans, Herts, and the goods, was held hot to be a promissory note.
    And in Dawkes vs. Lord De Loraine, 3 Wils., 207, which was an action against the drawer of a bill, by which the drawer was required, “seven weeks after date, to pay N. R. 32 pounds 7 shillings, out of Mr. Steward’s money, as soon as you receive it,” Lord Ch. J. De Gkey, delivering the opinion of the whole Court, said, that they were of opinion that the instrument sued on was no bill of exchange, because payable out of a supposed fund, at a future time, which was uncertain, and might or might not happen; and laid down the doctrine to be, that the instrument which constitutes a good bill of exchange, according to the law, usage and custom of merchants, is not confined to any certain form or set of words, yet it must have some essential qualities, without which, it is no bill of exchange; it must carry with it a personal and certain credit given to the drawer, not confined to credit upon any thing or fund; it is on the credit of a person's hand, as on the hand of the drawer, the endorser, or the person who negotiates it; he, to whom such bill is made payable or endorsed, takes it upon no particular event or contingency, except the failure of the general personal credit of the persons drawing or negotiating the same. And he said, that in the case before him, the drawer did not make the writing or instrument upon his own personal general credit, that in all events he would be liable in case the person on whom it was drawn should not pay it out of Steward’s money; but both the drawer and the person to whom payable, look only at the fund, and no personal credit is given to the drawer. He said it would be monstrous to make either drawer or acceptor pay it out of his own money; and that there was no case that he could find, in any book, where even an action would lie, as on a bill of exchange, where the same was payable out of a future contingent fund.
    So in Carlos vs. Fancourt, 5 T. it., 482, it was decided that a promise to pay a sum certain, “ out of my money that shall arise from my reversion of £43, when sold,” was no promissory note. It was placed by the Court on the same fooling with bills of exchange. Lord Kenyon said, “ It would perplex the commercial transactions of mankind, if paper securities of this kind were issued out into the world, encumbered with conditions and contingencies, and if the persons to whom they were offered in negotiation were obliged to inquire when these uncertain events would probably be reduced to a certainty; and that if the Court were to render the point in the least doubtful, they would shake the foundation of that which had been considered as clear law ever since the time of Lord Holt.”
    AsrnruRST, J., said, that “ Certainty is a great object in commercial instruments; and unless they carry their own validity on the face of them, they are not negotiable. On that ground, bills of exchange,, which are only payable on a contingency, arc not negotiable, because it does not appear on the face of them whether or not they will ever be paid.”
    So in Colehan vs. Cooke, ub. sup., Lord C. J. Willes laid it down, that notes payable on a contingency were not within the statute of Anne, because not negotiable ab initio. That statute, 3 and 4 Anne, ch. 9, makes all notes negotiable, whereby one person promises to pay to another, or to his order, or to bearer, any sum of money mentioned in such note. ’So by our statute, bills of exchange are declared to be 41 all drafts or orders drawn by one person on another, for the payment of a sum of money specified therein.” Rev. Stat., 151. Lord C. J. Willes said that the statute only extended to such notes where there is an absolute promise to pay, and not a promise depending on a contingency, and where the money, at the time of the giving of the note, becomes due and payable by virtue thereof, and not where it becomes due and .payable' by virtue of a subsequent contingency, which perhaps may never happen at all, and then the money will never become payable at all. And he remarked that it could never be said that there was a promise to pay money, or that money became due due and payable by virtue of a note, when, unless such subsequent-contingency happen, the drawer of the note does not promise to pay any thing at all. ».
    Just so it is in the present case under our statute. There is here no order to pay any sum of money absolutely, but to pay on a certain contingency, which may or may not happen, and out of a certain fund, which may or may not come to hand. This, then, is no bill of exchange, because the money does not become payable by virtue of the order, but is to be payable by virtue of the contingency, when it happens.
    • The contract and undertaking of the maker of a bill of exchange are conditional. He agrees to pay in case the drawee or acceptor does not, and upon protest and due notice, which protest and notice are to be governed by the law merchant. How can there be any regular protest or notice on such a bill, if bill it be? When should it be protested, and when should notice be given? When should the holder present it for payment? Does the maker guarantee that such fund will ever be realized? On an ordinary bill, he guarantees that the acceptor will pay, and that the drawee will accept. Here he does no such thing. What is his undertaking in- law? Nothing recog--nized by law so as to afford an action against him. What uncertainty and perplexity, whát confusion and injustice would ensue, if such instruments were considered bills of exchange! Has this instrument been protested according to the rules of the law merchant? There are no rules in the law merchant for the protest of such instruments. Was it protested, or presented for payment, while the drawées had in hand the fund relied on? The count does not show it. ,
    Other authority to the samé point is abundant. An order to pay money out of the drawer’s growing subsistence, was held no bill; Jotclyn vs. Laserve, Fort., 281; 10 Mod., 294, 316; or out of the fifth payment, when it should become due, and it should be allowed by the drawer; Haydock vs. Linch, Ld. Raym., 1563; or out of the purchase money of the drawer’s house; Yates vs. Grove, 1 Ves. Jr. 280; or out of money to arise from a reversion, when sold; Carlos vs. Fancourt, 5 T. R. 482; or out of rents or other money in the drawee’s hands, Young vs. Herle, Ld. Raym., 1361; or when three drafts have, been paid, Williamson vs. Bennett, 2 Camp., 418; or to pay money on account of freight, Banbury vs. Lissett, 1 Str., 1211; Coolidge vs. Ruggles, 15 Mass., 387.
    In Cook vs. Satterlee, 6 Cowen, 108, an instrument in the form of a bill, whereby the drawers requested the drawees to pay, 90 days after date, to the plaintiff, or bearer, ‡400, and take up their note given to W. & H. B. Cook for that amount, was declared no bill of exchange, because a bill must be payable at all events, not dependent on any contingency, or out of any particular fund ; and because it was the same as if it had directed the amount to be paid “ on his giving up our note.” So in Atkinson vs. Manks, 1 Cowen, 707, the Court of Errors said that an order for “£1642 proceeds of goods,” would not be a bill of exchange, because payable on a contingency, and out of a particular fund.
    It is not necessary that we should go into a more extended examination of the authorities, to show that the demurrer on this ground should have been sustained.

      ThapnaRX, and Cocke, Contra:

   Ringo, C. J.,

delivered the opinion of the Court:

■ The plea of set-off certainly fails to disclose any contract between Hamilton and the defendant Myrick; and the writing therein described is not such an instrument as is recognized by the law merchant, as negotiable according to the custom of merchants; nor is it such a contract in writing as may be assigned by virtue of the provisions of any statute in force in this State,^ either at the date of the writing, or at the time when the assignment thereof is alleged to have been made. It is not within the law merchant, or to be governed by the principles thereof, because every hill of exchange, draft,or check, according to the custom of merchants, must be for money only, and be paj'able at all events, not depending on any contingency, either with regard to any event, or with regard to the fund out of which payment is to be made, or the- parties by or to whom the payment is to be made. And the writing described in-the plea, requires the sum of money therein mentioned to be paid only out of a particular fund, and upon a future contingency, which might never happen. The adjudications establishing this principle are numerous, and of the most unquestionable authority; and it is believed that few if any decisions contrary thereto can be found. All paper of this character is designed to foster credit, and encourage trade; and hence it is, that the law has attached to it certain properties not given to any other species of security; and although no set form of words is required in the creation of such instruments, yet they must have some essential qualities, without which they are not considered within the operation and protection of the law merchant. The essential qualities of every such instrument are, that it be payable at all events, not depending on any contingency, nor payable out of a particular fund; and that it be for the payment of money only, not for the performance of any other act, or in the alternative. When so made, it carries with it a personal and certain credit given to the drawer, not confided to credit upon any particular thing or fund. It rests upon the general credit of the drawer, the endorser, or person who negotiates it; and he, to whom such instrument is made payable or endorsed, lakes it,upon no particular event or contingency, except the failure of the general personal.credit of the persons drawing or negotiating the same.

In this case, Hamilton did not make the instrument in question upon his own personal general credit, that in all events he would be liable, should Messrs. Brander, McKenna & Wright not pay it out of the money received on his account from the Insurance office, when collected; but both Hamilton, the drawer, and Poor, to whom or to whose order the money is required to be paid, looked only at the fund drawn upon, and not to the general personal credit of the drawer. Consequently, the instrument in' question was not drawn or negotiable according to ihe law, usage, and custom of merchants, and the endorsement thereof by Poor to Myrick, did not confer upon the latter any legal right to the instrument, so as to enable him to demand or receive payment thereof, or maintain any action at law thereupon, in his own name, against the drawer. See Dawkes vs. Lord De Loraine, 3 Wils. 207; Cook vs. Satterlee, 6 Cowen, 108; Carlos vs. Fancourt, 5 T. R. 482; Colehan vs. Cooke, Willes, 397; Chitty on Bills, 154.

These principles are not, as we conceive, in any manner changed or affected by any thing contained in the 13th section of chapter 20 Rev. St. Ark., 151, which declares, that “The term ‘bill of exchange,’ as used in this act, shall be so construed as to include all drafts or orders drawn by one person on another, for the payment of a sum of money therein specified;” because it is only declaratory o.f the law as it stood previously, and was inserted under the apprehension that such drafts and orders as are not in strictness embraced by the term “ bill of exchange,” might otherwise be considered as not within the provisions of that statute, as the language used applies in express terms to bills of exchange only.

Nor is the instrument in question embraced by the old statute of assignments, (Ark. Dig., 74,) nor any of the provisions contained in chapter 11 of the Rev. St. Ark., 107; because it is not a contract or agreement in writing, for the payment of either money or property, but simply an order to a third party, to pay to the payee, or his order, .a specified sum of money, out of a particular and specified fund of the drawer, which it was contemplated would, at some subsequent period, be collected by the drawees. It contains no stipulation whatever for the payment of the sum of money therein mentioned, by the drawer or any other person, to the payee or any other person whatever, and therefore it is not such an obligation as is assignable by virtue of any of the provisions of either of the statutes aforesaid, and cannot, by reason of the endorsement and assignment thereof by the payee to Myrick, create any legal debt or obligation in favor of the latter against the drawer; and for this reason, the plea must be adjudged insufficient in law to entitle the defendant, Myrick, to have the amount of money in said order mentioned set-off against the demand of the plaintiff.

Having thus disposed of this question, it becomes unnecessary for us to consider or determine the other questions presented by the record.

Judgment reversed, and case remanded, with instructions to sustain the demurrer to the plea of set-off, and for further proceedings.