Garrett v. Tinnen , 8 Miss. 465 ( 1843 )

Mr. Justice Clayton

delivered the opinion of the court.

This was an attachment for a debt not due, taken out under the attachment law of this state. It involves the inquiry, how, since the act of 1840 abolishing imprisonment for debt, the defendant may discharge the attachment, and release the property upon which it is levied. At first view it might seem not to be necessary for the decision of this question to advert to those pans of the statute which regulate attachments for debts already due; but a little examination will show that the whole statute comes into consideration, and that a construction must be put upon all the parts which relate to the replevying of the property attached.

The 25th section of the attachment law, as contained in How. and Hutch. 553, which is the section under which this proceeding is had, enacts, that “if the debtor shall not, on or before the return of the attachment, enter into bond, with sufficient security, for the payment of the debt when it becomes payable,” the court shall, on proof of the debt, and of the intention to remove, grant judgment as .in other cases of attachment; and the same section enacts, by way of proviso, that attachments authorized by it shall be repleviable in the same manner with other attachments. In regard to the replevy of property under other attachments, the 15th section of the same act provides, that it may be done at any time before final judgment or writ of inquiry executed, by appearance of the defendant, and putting in good special bail; or by giving bond, with good security, to the sheriff, or other officer serving the same, to appear at the court to which the attachment is returnable, and to abide by and perform the order and judgment of the court. If in this last instance the surety be adjudged insufficient by the court, and if the defendant fail to appear and give special bail as in the first instance is provided, then the sheriff and insufficient surety shall be subject to the same judgment, and have the same defence and relief, as if such surety had been taken on mesne process: that is, they are to be regarded as special bail.

The only other sections which it is necessary to notice are the 20th and 21st, which direct, that notice of attachments shall be given by publication, and that such notice, among other things, shall specify, that unless the defendant shall appear, give special bail, and plead, within the given time, judgment will be entered, and the attached effects sold. But if the defendant appear, put in bail, and plead, the estate attached shall be discharged and liberated.

It is plain, from these provisions, that in reference to debts due, the statute had but one leading object in view, to compel the defendant to appear, give special bail, and plead. When he complied with these requisites, as the law stood before the act of 1840, the property attached was discharged.

The bond to the sheriff, mentioned in the 15th section, was, in my estimation, little else than a bail bond. It is true it required the defendant to appear at the court to which the attachment was returnable, and to abide by and perform the order or judgment of the court; but if the defendant appeared and gave special bail, that bond was discharged. If he failed to appear, and the surety was adjudged insufficient, the sheriff was special bail, in the same manner as if the bond had been taken upon mesne process. The only case in which this bond to the sheriff had any other effect than a bail bond, was where the defendant failed to appear and give special bail, and where no exception was taken to the surety in the bond to the sheriff. What would be the state of parties under these circumstances is not pointed out by the statute, and as it has no direct bearing on this case, I shall give no opinion upon it. Hence, then, it seems manifest that in all cases of attachments under this act for debts due, the property might be discharged by appearance, and giving special bail. As the acts of 1839 and 1840 abolished the taking of bail and imprisonment for debt, except in a few specified cases, the consequence is, in regard to debts due, the defendant may by simple appearance and plea release the attached effects. It would be vain and useless to require him to give a special bail bond, when by law it could not be enforced. We cannot agree either with the counsel of the defendant, that in cases of attachment there is always such evidence of fraud as will make the bail bond valid; or with the counsel of the plaintiff, that we can remodel the bond by leaving out one of its conditions, and make it absolute for the payment of the judgment. As the bail bond would be nugatory, the conclusion is rational that an appearance and plea alone will, in cases where the debts are due, discharge the attachment.

In this case, which is an attachment for a debt not due, a different rule must prevail. The defendant by the 25th section already referred to, may discharge the attached effects in one of two modes. By the first he may give bond with sufficient security for the payment of the debt when it becomes due; by the other he may give special bail. The act of 1840 repeals so much of the attachment law by implication as is inconsistent with that act; but leaves the rest of that law not repugnant to it in full force. This is upon the well known rule of construction that where two statutes are inconsistent there is an implied repeal of the onejirst enacted to the extent of such inconsistency. The taking of special bail being against the act of 1840, is forbidden by it; but there being no repugnance between the other provision requiring security for the debt and the act of 1840, they may well stand together. We think, therefore, that the defendant ought not to be permitted in this case to procure the discharge of the property attached, except upon compliance with the other requirement of the statute — the giving of bond with sufficient security for the payment of the debt when it becomes due. If he fails to do this, the property must remain in the custody of the law; ‘to be disposed of as the same section of the statute directs. This construction of the statute is in accordance with an old and familiar rule, that if a condition is to do one of two things, one of which becomes illegal or impossible, it is no reason for not performing the other. 1 Bos. & Pull. 242; Petersdorff, title Condition, p. 41, 42.

If it be said that there is no reason for the distinction between cases in which the debt’ is due, and those in which it is not due, the reply is, that the legislature has created the distinction, and it is our duty to enforce it.

A few words will dispose of the remaining question upon the subject of the pleadings. The defendant had no right to plead at all, until he had complied with that provision of the statute which we have pointed out as being still in force, and the court erred in receiving a plea from him.

We think, therefore, the judgment should be reversed, and the cause remanded, to be proceeded in according to the opinion of this court.

Mr. Chief Justice Sharkey.

The plaintiff sued out an attachment against the goods and chattels of the defendant, for a debt not due, and the question is, what is the effect of the act of 1840 abolishing imprisonment for debt on such attachments?

In the circuit court, the defendant was allowed to replevy, by entering his appearance, and putting in special bail, and at the last term of this court the judgment was reversed; but a reargument was granted, and we have accordingly reviewed our decision.

By the 25th section of the attachment law, How. & Hutch. Dig. 553, a creditor, on making the proper affidavit, and giving the requisite bond, is authorized to sue out an attachment before the debt is due. This is a privilege granted to the plaintiff. Now in case such attachment is issued, what is the privilege of the defendant, or how may he release the property attached? The same section provides: “If such debtor shall not, on or before the return day of the attachment, enter into bond, with sufficient security, for the payment of said debt when it shall become payable, the court, on due proof of the justice thereof, and of the intention of the debtor to remove, or of his having actually removed out of this state, shall grant judgment as in other cases of attachments.” This is one mode by which the property can be released, and although the law seems to require that such bond should be given before the return day of the attachment, yet it is believed that it may be given at any time before the judgment and the object of the law will be fully accomplished. But the same section provides that such attachments shall be repleviable in the same manner as other attachments are by law repleviable. Let us see, then, how other attachments are repleviable,- and when we have done so, we shall have shown all the privileges of the defendant.

By the 15th section it is provided that “all attachments shall be repleviable at any time before final judgment entered, or writ of inquiry executed, on the appearance of the defendant, and putting in good special bail, or by giving bond with good security to the sheriff or other officer serving the same, which bond the sheriff or other officer is thereby required and empowered to take, to appear at the court to which such attachment, is returnable, and to abide by and perform the order and judgment of such court.” This bond which the sheriff is authorized to take, I regard as nothing more than a special bail bond, as appears by the latter part of the section, which provides that if the security be adjudged insufficient, and if the defendant shall fail to appear and give special bail, the sheriff is to be substituted as bail, and have the same liberty of defence as if the surety had been taken on the execution of mesne process. The defendant is not required to appear and give special bail unless the bail given to the sheriff be adjudged insufficient. If it be insufficient he must perfect bail, or the sheriff is to stand as bail. This view of the subject seems to be clear, when it is considered that an attachment is regarded as a mere means of forcing appearance, or mesne process. Thus it will be seen that if an attachment be issued for a debt not due, the defendant may adopt either of the two alternatives; he may give security to pay the debt when it becomes due, and by that means put an end to the proceeding; or he may give special bail, either to the sheriff or in open court. In either case, the plaintiff is supposed to be indemnified. His rights are protected, as well as those of the defendant. By the act of 1840, imprisonment for debt is abolished, and by necessary implication, this repeals the provision for special bail which is required to be given in cases of attachment. It abolishes one of the modes by which the plaintiff is indemnified. But it does not necessarily destroy the other, as nothing is repealed by implication, except what is repugnant to, or inconsistent with the repealing act. The right to sue out an attachment for a debt not due is not repealed, nor is the plaintiff’s right to have security for the payment of the debt when it becomes due taken away. This constitutes part of the plaintiff’s remedy; without it the attachment would be ineffectual. To hold that this part of the remedy was destroyed, would in effect abolish the whole of the attachment law, a thing which was evidently not designed by the legislature. As the defendant was obliged, if he wished to discharge his property in case of attachment for debt not due, to give bond to pay the debt, or to give special bail, it follows necessarily, that as the one is repealed, he is deprived of his alternative, and must adopt the other mode, or suffer his property to remain in custody.

In regard to the plea in abatement, I incline strongly to think that it is not a proper plea in any case of attachment, unless for some irregularity in the affidavit, the attachment process, or the bond; but even if such a plea could be pleaded, this plea is clearly bad, as it does not traverse the language and meaning of the affidavit, on which an attachment is authorized to issue. For these reasons, I think the court below erred in allowing the party to replevy by giving special bail, and in allowing the party to plead. The singular attitude in which the defendant is placed is the result of legislation, and whether that be provident or improvident, the effect is not altered.

Mr. Justice Turner.

The first question presented in this case is, whether the attachment law of 1822 is repealed, or modified, altered, or changed, in relation to the kind of security to be taken of the defendant, for it is not pretended that the remedy by attachment is entirely abrogated by the act of 1840, p. 40.

The duty imposed upon the judicial department of the government, to construe the acts of the legislative department, is a necessary one, but it must be admitted that it is a very delicate one, and should be exercised with great caution and circumspection. We all know that in England, where it is said that their parliament or legislative department is omnipotent, the courts construe their statutes ■ and they have done it from time immemorial, and with great freedom, and the rales for construing statutes have become fixed and settled law.

The duty of the government to take care of our citizens, in all their rights, is paramount. Among those duties is that of securing to every creditor the means of obtaining satisfaction for his debt or demand, out of the effects of the debtor, found within our state, whilst the debtor is alive, and even after his death, by giving to the local administrator or executor the custody and distribution of the estate of the deceased, to the exclusion of the foreign administrator.

To guard against a debtor’s absconding and removing his property from the state, leaving behind him unsatisfied demands, the law has provided various remedies for the protection of the rights of its citizens. Such as the writs of ne exeat, and attachment; and the courts, both of law and of chancery, have jurisdiction in such cases, both as to resident and non-resident debtors, having effects within our state. See Rev. Code, p. 157, 160, 84, 95, 145.

Our acts of 1839, p. 67 to 72, and the act of 1840, p. 40, amendatory thereto, have in view the benevolent purpose of relieving from imprisonment for debt, all persons within our jurisdiction, not suspected of fraudulent designs, in concealing his or their property. The honest debtor, and no other, is the object of this exemption from imprisonment; and I consider that the acts in question have no reference to the attachment laws, further than by necessary and reasonable implication. The act of 1839, has no relation or express reference to the laws regulating attachments, and allowed arrests to take place before and after judgment in certain cases. The act of 1840, provides that no person shall be imprisoned for debt, under any pretence, unless upon issue submitted to a jury, and they declare there has been fraud upon the part of the debtor, in concealing his property. But no allusion is made to the process of attachment. This process runs against property, and not persons, and it may well be doubted whether the legislature intended those acts to apply, at all, to proceedings under the attachment laws of the state. Be this as it may, however, we have no doubt that in this case the proceeding must be governed by the 20th section of the attachment law. Rev. Code, p. 165. This section provides as follows, viz:

“Whenever any creditor shall have sufficient grounds to suspect that his debtor will remove with his effects out of this state, before his debt will be payable; or whenever such debtor shall have so removed, leaving effects, it shall be lawful for such creditor to go before any justice, or judge of the county court, or justice of the peace of the county where his debtor resides, or in case such debtor has removed, where he last resided, or where his effects may be found, and make oath or affirmation to the true amount of his debt, and the time when it will be payable, and that he hath just cause to suspect, and verily believes, that such debtor will remove himself, with his effects, out of the state, before the said debt will become payable, or hath actually so removed; and also that he had no knowledge, when the said debt was contracted, of the intention of such debtor so to remove; and thereupon such judge or justice, taking bond and security from such creditor, as in other cases of attachments, shall issue an attachment against the goods and chattels of the debtor, returnable to the next term of the court having jurisdiction thereof, which attachment may be served on any goods and chattels of such debtor, or any garnishee or garnishees. If such debtor shall not, on or before the return of such attachment, enter into bond, with sufficient security, for the payment of the said debt, when it shall become payable, the court, on due proof of the justice thereof, and of the intention of the debtor to remove, or of his having actually removed out of the state, shall grant judgment, as in other cases of attachments; but execution shall be stayed against-any garnishee, &ci until the claim of the plaintiff, or such garnishee’s debt to the defendant shall become due, and the goods condemned shall be sold upon a credit,” &c. and the bonds for the purchase money shall be assigned to the plaintiff, but returned to the clerk’s office, and execution may issue thereon as on judgments; and if any surplus, the same to be secured in like manner for the benefit of the defendant. Then comes the proviso, “that all such attach-: ments shall be repleviable in the same manner as other attachments are by law repleviable.”

The 10 th section of that act directs when and how repleviable, -which replevy may take place at any time before final judgment entered, or writ of inquiry executed, on the appearance of the defendant, and putting in good special bail, or by giving bond with good security, to the sheriff or other officer serving the same, to appear at the court to which such attachment shall be returnable, and to abide by and perform the order and judgment of the court.

From these statutory provisions, I come to the conclusion that, notwithstanding the act of 1840, attachments may still issue, and bonds be taken of defendants, not inconsistent with the provisions of that act. According to the 20 th section, under which the present attachment issued, the defendant, if he gives bond, is to give it for the payment of the debt \vhen it becomes payable, and to give it on or before the return of the attachment; but if he comes in after the return, then ho may replevy his property, by giving a like bond; that is, to abide by and perform the judgment of the court.

If the defendant gives the bond under the 20th section, on or before the return of the attachment, the plaintiff can proceed no further with his suit; but if the defendant comes in after the return day, and before judgment or writ of inquiry executed, he may replevy and defend the suit, by pleading, <fcc. and the suit will -proceed to final judgment, but execution be stayed until the debt becomes due, if plaintiff recover. :

On the return of this attachment, levied on sundry slaves and other property, the plaintiff filed his declaration, the defendant appeared and entered into recognizance with security for his appearance, and to pay and satisfy the condemnation of the court, or render his body to prison for the same.

The plaintiff excepted to this, but the exception was overruled; whereupon, at a subsequent day of the term, the defendant filed a plea in abatement, in which he averred, “that it was not his intention to remove, nor would he have removed himself with his effects out of the state of Mississippi before the debts mentioned in the original writ herein became or fell due;” and prayed judgment of the writ, &c., and that the same may be quashed, &e. To which plea the plaintiff demurred.

The court rendered the following judgment: “and because it appears to the court that the declaration of the plaintiff is defective and insufficient, it is therefore considered by the court that the said demurrer be applied to said declaration, and sustained,” and gave leave to the plaintiff to amend, which he declined; whereupon a final judgment was entered for the defendant, and the plaintiff sued out this writ of error.

The errors assigned are to the judgment of the circuit court, in permitting the recognizance of bail to be entered, and in sustaining the demurrer as to the plaintiff’s declaration.

The preceding remarks disposes of the first assignment. I consider that the recognizance or bond should have been allowed, on such condition only as the laws now contemplate, to wit, for the payment of the debt, or to abide by and perform the order and judgment of the court, special bail being abolished by implication.

As to the declaration, it is in the common form of declarations on promissory notes. To be sure, it declares on demands not then due; but the statute has allowed this, and no prejudice can result to the defendant, inasmuch as no satisfaction can be made or enforced, until the debt becomes due.

' The court erred, however, in rendering judgment on the declaration. This plea, if any plea at all, is a plea in abatement, and the subject matter of it could not be plead in bar. It is essentially abateable matter which is attempted to be pleaded, and the plea itself is bad. We admit that pleas in abatement may be pleaded in cases of attachment, as infancy, coverture, &c.; but this plea contains immaterial matter. The law says, that whenever any creditor shall have sufficient grounds to suspect that his debtor will remove with his effects out of this state, before his debt will be payable, and make oath that he has just cause to suspect and verily believes that such debtor will remove himself with his effects, <fec. he may sue out his attachment.

The plea says,, that it was not the intention of the defendant to remove, nor would he have removed himself with his effects, &c. it does not say that the plaintiff had no cause to suspect. If the defendant had responded to the allegation of the plaintiff in his affidavit, the plaintiff might have taken issue on the fact, and on trial the jury would have decided on the evidence, not whether the defendant intended to remove himself and his effects, but whether the plaintiff had just cause to suspect and believe that he would do so.

I consider that a defendant in attachment is amply protected from injury by the statute, which requires, in the first place, that the plaintiff shall give bond to the defendant conditioned to pay and satisfy the defendant all such costs and damages, &c. for wrongfully suing out the attachment; and in the second place, by replevying his property and defending the action, which he will be allowed to do as fully and effectually as if sued by original capias or summons. He can move to quash the attachment from defects appearing on the face of the proceedings, or plead in abatement, or in bar, as infancy, coverture, payment, &c.

This cause has been fully argued by the counsel on both sides, and many points raised and ably discussed, which we deem it unnecessary to notice.

The judgment must be reversed, and the cause remanded, with leave to the defendant to enter bond, according to the foregoing view of the law, and for further proceedings in the court below.