# Wallace v. M'Connell

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United States Supreme Court
38 U.S. 136
Wallace v. M'Connell
IN error to the District Court of the United States for the southern district of Alabama.
The plaintiff in error, William Wallace, was sued in the District Court of Alabama, exercising the powers of a Circuit Court of the United States, on the second day of April, 1836, by a capias issued out of that Court, and returnable on the first Monday of May following. The action was brought on a promissory note, under the seal of the defendant, for four thousand eight hundred and eighty dollars, dated May 10, 1832, and payable to the plaintiff or to his order, at the office of discount and deposite of the Bank of the United States, at Nashville, three years and two months after date.
At the May term, 1836, of the District Court, the plaintiff filed a declaration on the note, in debt, alleging the non-payment of the note, although frequent demands had been made of the drawer. No demand was alleged to have been made at the office of discount and deposite of the Bank of the United States, at Nashville.
The defendant pleaded payment, on which issue was joined, and the case was continued.
At the succeeding term of the District Court, the defendant filed the following plea: That as to the sum of forty-two hundred and four dollars, part and parcel of the sum by the said plaintiff in said declaration demanded, he, the said plaintiff, ought not further to have and maintain his aforesaid action therefor, against him; because he saith, that after the said last continuance of this cause, that is to say, after the term of this Court held on the first Monday of May last, and before the December term aforesaid, to wit, on the eighth day of June, in the year 1836, at Mobile, to wit, in the district aforesaid, one William J. Blocker, John R. Blocker, and Benjamin Horner, merchants, trading under the name of Horner, Blocker and Co. by William J. Blocker one of the said firm, in behalf of himself and his copartner, caused to be sued out a certain writ of original attachment against the said Corry M'Connell, for the sum of forty-two hundred and four dollars; and which said writ was issued by Benjamin Wilkins, a justice of the peace of Mobile county, on the said eighth day of June, in the year 1836, and was directed to the sheriff of Mobile county, and was made returnable to the county Court of Mobile county, which was held on the second Monday in June, 1836. And the said defendant further avers, that the said plaintiffs in the said attachment, were at the time of suing out the same, residents of the state of Alabama; that the said Corry M'Connell was a nonresident, and citizen of the state of New York, and that the said plaintiffs did comply with the requisites of the statute, in such cases made and provided, by giving bond and security, and filed affidavit, whereby it is shown that the said justice and the said county Court had jurisdiction of the said attachment, and that the said county Court could lawfully hear and determine the same. And the said defendant further saith, that in said original attachment, such proceedings were had; that he, the said William Wallace was on the said eighth day of June, 1836, summoned as a garnishee by the sheriff of Mobile county, and required to appear before the said county Court, and answer, on oath, what he was indebted to said Corry M'Connell. And the said William Wallace, defendant, further saith, that, in obedience to the said summons of garnishment, he, the said William, did appear before the said county Court of Mobile, at the said term of the said county Court held on the second Monday in June, 1836, before the judge of said Court then sitting, and was in said suit of attachment between the said Horner, Blocker and Co., plaintiffs, and Corry M'Connell, defendant, examined on oath, touching his indebtedness to the said Corry M'Connell; whereupon he did declare on oath, that he did execute to the said M'Connell, the note for the sum of four thousand eight hundred and eighty dollars, on which the said plaintiff in this suit hath declared, that he did pay, on the said note to said M'Connell, on the 24th day of September, 1833, the sum of three hundred and seventy-two dollars thirty-four cents, and that the remainder of said note was due by said Wallace to said M'Connell, &c. And the said defendant further saith, that in the said attachment by said Court, at the said June term thereof, it was ordered that the proceedings against said M'Connell be stayed for six months, and that notice be given to the said M'Connell of the pendency of said attachment, by letter, directed to New York; the said M'Connell being shown to be a resident of the state of New York. And the said defendant, Wallace, further saith, that in the said attachment, and upon the said writ of garnishment, the said Court at the said June term, then sitting, did make the further order following, to wit:
It appearing, to the satisfaction of the Court, that William Wallace has been duly summoned as a garnishee, and he having admitted an indebtedness to said defendant, to an amount greater than the amount sued for in the above entitled cause, it is considered by the Court, that said plaintiffs do recover from said garnishee, the sum of forty-two hundred and four dollars, the amount sued for in said case, together with the cost thereof, and that all proceedings against said garnishee be stayed until the final disposition of said case; wherefore the said cause was, in said county Court, at said June term, continued by said Court, as well against the said M'Connell as against the said Wallace, till the next term thereof, to be held in due course of law, that is to say, on the second Monday of February, in the year 1837. All which said proceedings in the said county Court, in which the said plea still remains pending and undetermined, are still in full force, and not reversed, vacated, or otherwise set aside, as by the record and proceedings in said Court, still remaining of record, will more fully and at large appear; and that he, the said defendant, is ready to verify: wherefore, he prays judgment, if the said plaintiffs ought further to have or maintain his said action therefor, against him, this defendant, as to the sum of four thousand two hundred and four dollars, parcel of the sum by the said plaintiffs above demanded, &c.
The plaintiff at the same term entered a demurrer to this plea of puis darien continuance, and prayed the Court to render judgment against the defendant for six hundred and seventy-six dollars thirty cents, parcel of the debt of four thousand eight hundred and eighty dollars, the amount of the note, which by the plea was wholly undefended; and as to the said plea of puis darien continuance, the plaintiff says that the plea of the defendant is not sufficient to bar him from maintaining his action on the said note, &c.
The Court, on the pleadings, gave judgment as follows: 'As to the said sum of four thousand two hundred and five dollars; being argued by counsel, it seems to the Court that said plea, as to the said sum of forty-two hundred and five dollars, and the allegations therein contained, are not sufficient in law to bar the said plaintiff from having and maintaining his aforesaid action therefor against the said defendant; whereupon, it is ordered by the court, that the said demurrer be sustained; but as to the sum of six hundred and seventy-five dollars, thirty-nine cents, the residue of said plaintiff's debt, in his declaration mentioned, this day came the plaintiff, by his attorney, and the said defendant, being solemnly called, came not, but wholly made default, as to the said last mentioned sum, whereby the said plaintiff, therein against him remains altogether undefended. It is therefore considered by the Court, that the said Corry M'Connell, plaintiff, do recover against the said William Wallace, defendant, the said sum of four thousand eight hundred and eighty dollars and thirty-nine cents, his debt aforesaid, and also the further sum of three hundred and ninety-four dollars, the interest thereon, assessed by the clerk of this Court by way of damages, for the detention of the same, together with his cost in this cause; the plaintiff remits to the defendant the sum of three hundred and fifty-one dollars, twenty-eight cents.'
The record of the District Court stated: 'In this cause the Court decided that the plea of puis da ien continuance was a waver of the previous plea pleaded by the defendant: there was no default of the defendant, further than his abandonment, under the decision of the Court, of his first plea. In this cause the defendant moved the Court to stay proceedings in the said cause until the final decision of the County Court of Mobile county, upon the attachment of Horner, Blocker and Co.; which motion was overruled.'
The defendant prosecuted this appeal.
The case was argued by Mr. Key, for the plaintiff in error; and by Mr. Crittenden, for the defendant.
For the plaintiff, it was contended,
1. That the demurrer should have been overruled, the matters pleaded being sufficient under the attachment laws of Alabama.
2. That the judgment, by nil dicit, as to the residue of the debt, viz. the $675 39, not attached, was erroneous; inasmuch as it was covered and defended by the first plea of payment to the whole debt, which plea was not waived by the subsequent plea, which only went to part of the debt claimed in the action: parties being allowed by the law and practice in Alabama to plead any number of pleas to the same cause of action.
3. That the declaration on the note does not aver that payment of the note was demanded at the office of discount and deposite of the Bank of the United States, at Nashville, where the same was payable.
Upon the first point, Mr. Key contended that the attachment in the State Court of Alabama was a bar to further proceeding in the District Court. If this be not so, the plaintiff in the Court below will twice recover the amount of his debt from the defendant: once in the District Court, and again in the State Court; as his debt to the attaching creditor will be paid under the judgment of that Court.
The plaintiff in error had answered to the attachment, that he owed to M'Connell, the defendant in error, the amount of the debt claimed by the plaintiff in the attachment; and this, by the attachment law of Alabama, fixed his responsibility. But as to the residue of the note, he continued liable to the plaintiff in the District Court, if liable at all. The District Court decided that the plea of the attachment was a waiver of the first plea. This was not so; it could operate, only, if it had any operation as to part of it.
The case of the defendant in error is put on the ground that the attachment was no bar to the suit in the District Court of Alabama. This would be so, if in the attachment case the garnishee could plead the existing action in the District Court. This he could not do. It was not a plea to the attachment, that a suit was pending for the debt attached; and this is the law of Alabama, as it is in all the states in which attachment laws exist. By the customs of London such a plea would be good; but not so here.
By the attachment laws of Alabama, every thing in the shape of goods or credits, whether sued for or not, even judgments and money in the hands of the sheriff, may be attached; and the garnishee can only defend himself by showing that he had nothing in his hands, and owed nothing to the defendant in the attachment. No matter how he owed it, whether sued for or not. Aiken's Digest, 37, sec. 15, 16, 19.
Nor can the defendant in the attachment suit complain. He has full notice of this proceeding, and may appear and dissolve the attachment; and he has security for the restoration of the property in a year and a day, should the plaintiff in the attachment have recovered improperly.
In the case before the Court, the plea of puis darien continuance is said to have overruled the plea of payment, entered to the plaintiff's declarations, and thus makes it apply to the whole of the claim of the plaintiff; when, in fact, its application was for a sum less than the amount of the note, leaving the balance, six hundred and seventy-five dollars thirty-nine cents, undefended. This is founded upon the supposition that such a plea withdraws the whole defence originally pleaded. But this is not so; the plea has no operation but to the sum stated in it: and in this case, the attachment had seized upon four thousand two hundred and five dollars, leaving the residue of the note sued upon protected from a judgment of the Court, on the original plea of payment. The case in 2 Wendall's Reports, 300, fully sustains this position.
2. Do not the attachment laws of the states interpose a bar to a suit commenced before the attachment?
It is important that this question should be considered, and the principle settled; and that the property of absent debtors shall be liable to pay their creditors. Much of the credit which an individual, who is a non-resident, obtains, is often derived from the debts due to him at the place or in the country in which the credit is given; as they are considered liable, under the attachment laws of the states, to the payment of his debts. Thus the credit operations of the country are made safer, and commercial transactions are beneficially extended.
It seems to be considered by the District Court of Alabama, that the attachment in the State Court could not operate after the commencement of the suit on the note. But the only question to the original debtor under the attachment was, do you owe the money? And no state of things, such as a suit, or surety for the defendant in the attachment, could exempt him from liability for the amount in his hands.
It is said, it is different in England: this is so to some extent. By the attachment law, under the customs of London, a debt in suit cannot be attached. But this is not the law in the states of the United States. The attachment law of England, under the customs of London, is peculiar in many of its features; although in some respects our laws are the same. Customs of London, 265-268. By that law, debts in suit, debts on judgments, cannot be attached; our laws give no such exemptions.
It is a settled principle, that the property of absent debtors is liable, by legislation, to the payment of their debts. This is a rule in almost all the states of the Union; and it will not be disturbed by the Courts of the United States. Cited, Aiken's Digest of the Laws of Alabama, 37. Sergeant on Attachment, 161. 2 Dallas, 279. 2 Yeates, 192. 9 John. Rep. 221. 20 John. Rep. 229-231, 239, 268. 4 Cowan, 521. 1 Peters' C. C. R. 245. 8 Cowan, 311, 315. 1 Harris and M'Henry, 236. 2 Harris and M'Henry, 466. 1 Alabama Rep. 129. 12 Martin's Rep. 68.
Upon these authorities, it is immaterial whether the attachment was commenced before or after the suit was instituted.
3. It is contended that the plea of puis darien continuance, is a waiver of all preceding pleas.
This may be admitted, so far as the plea goes, but it does not extend beyond the matter of the plea; nor is it an abandonment of a defence which is not affected by the plea. Where it is pleaded to a part of the bill sued on, and not to the whole amount of it, the original plea stands for the residue unaffected by the special plea. This must be so, or the grossest injustice might arise; as the defendant, who should desire to avail himself of a just defence to a part of a debt claimed from him, must give up a defence which would be equally available against another part of it.
The authorities do not sustain the position upon which the decision of the District Court was made. When the plea of puis darien continuance goes to a part only of the claim, it has no extent to any other or further part. 1 Alabama Rep. 129. 2 Wendall, 300.
The last objection is that there is no averment of a demand at the bank of deposit, at Nashville; and no demand is stated to have been made there.
Can an action be maintained without proving that the money was not at the bank of deposite, in Nashville, to pay it; and that a demand was made there in conformity with the note? It has been decided that as to the endorser on a note of this description, it is necessary to prove such a demand. Smith vs. the Bank of the United States, 11 Wheat. 171. The same principle should apply in an action against the drawer.
Mr. Crittenden, for the defendant, said, there are but two questions in the case.
1. Whether the plea puis darien continuance is a good bar to the action.
2. Whether that plea was a waiver of the first plea of payment.
As to the first question, it is insisted, on the part of M'Connell, that neither the pendency of an attachment, nor condemnation under it, if the attachment be issued after the commencement of his suit, can form any legal defence or bar to that suit. And for authority on this point, reference is made to 3 Wilson, 297-304. Brooks vs. Smith, 1 Salkeld, 280. Savage's case, 1 Salkeld, 291. 5 Johns. Reps. 101. 5 Taunton, 558. 4 Durnford and East's Reps. 312. 16 Eng. Com. Law Reps. 78 and 79.
As M'Connell's suit was brought long before the attachment pleaded in bar of it, it follows, therefore, that the decision of the Court upon the demurrer to that plea was correct. If the matter of the plea was available at all, it could only have been pleaded in abatement. 1 Chitty, 697.
As to the second question, we refer to Chitty's Pleading, vol. i. 697, &c., and the cases cited in the note thereto; and also to the case of Kenner and Bussard vs. Marshall, 1 Wheaton, 215. In the case referred to in Chitty, he says: 'A plea puis darien continuance, is not a departure from, but is a waiver of the first plea, and no advantage can afterwards be taken of it; nor can even the plaintiff afterwards proceed thereon.'
Upon the whole matter, therefore, it is contended that the judgment ought to be affirmed.
Mr. Justice THOMPSON delivered the opinion of the Court.--

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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