Flanagan v. Mechanics' Bank

The opinion of the court was delivered, by

Thompson, J.

The bill of exceptions contains no exception to the charge, consequently we are confined in this review to those exceptions relating to the two items of rejected testimony. The first of these was an offer in substance to show failure of consideration for the notes in question long after their date and negotiation, and before maturity. To be more specific, the notes were dated respectively in December 1860 and January 1861, and drawn payable to the Insurance Company of Virginia. They passed into the hands of the Bank of the Commonwealth, at Richmond, and by it were transferred to the Mechanics’ Bank, the plaintiff, on the 29th or 30th of April 1861, in payment of a balance due by the former to the latter bank. The proposition was to prove that in June following, the policies for which the notes were given were cancelled by the company, with the drawer’s assent. The plaintiff’s title had accrued before this, and even if it had not, this would have been no defence without notice qf the failure of consideration, the notes being negotiable and not due when received and credited on account to the Commonwealth Bank. All this is too plain to require elucidation. The court below properly rejected the testimony.

2. The other exception is to the rejection of the record in foreign attachment and the judgment in the scire facias against the defendant. The plaintiff below had no notice of that suit, was no party to it, and was not bound by the judgment. If it be supposed that because the process of foreign attachment is sometimes said to be in the nature of a proceeding in rem, the judgment against the garnishee, like proceedings in bankruptcy, decrees of distribution, and in admiralty and other like cases, is conclusive on everybody, it is a great mistake. It is said to be in the nature of a proceeding in rem because it is a process against the thing belonging to the debtor in the first place, and the judgment against the garnishee has relation only to its value : 9 Wright 488. But the controversy with and as to the liability of the garnishee, is in personam, and concludes only the parties legally actors in it: 12 S. & R. 287; 9 Wright, supra. The learned judge very properly held the attachment and proceedings on the scire facias as res inter alios acta, and not evidence.

The complaint of error in this particular is not sustained. We think it was competent for the garnishee to have protected himself against a double liability, by notifying the holder of the notes, of the attachment, and calling upon him to interplead. Or if he could not ascertain the holder, he might have shown the nature of the paper and its actual transfer. This would have been an answer, one would suppose, to the attaching creditor.

We cannot well say, as a rule, that a debt due by a negotiable instrument, is not liable to be attached for a debt due by the payee. There is no reason for saying it could not be simply because of its form. It is only when actually negotiated that there is a reason against it, and it seems to me in such case the garnishee might and ought to protect himself in one or other of the modes suggested above. But we need not definitely determine this point in order to decide this case.

The other questions argued in the paper-books, and not above noticed, are not before us, and any opinion upon them would be extra-judicial, and should not be given.

The charge of the court is not before us according to any mode of proceeding for bringing it up: 1 Fish’s Tr. & H. 570. Had the counsel for the defendant in error examined the bill of exceptions carefully, they would have saved themselves and us some trouble.

Judgment affirmed.

Strong, J., was absent, and took no part in the decision.