The letter did not propose a sale; there was no estimate of the value of the claim; Goodwin considered it likely to be received in a year, and looked on it as worth $20,000, or more.

His objects he said were, 1st. To secure a debt he then owed, but if it were a sale for $2,000, it secured nothing; 2d. To obtain the bare means of support for the present. He then plainly looked to the remainder of the fund as his support for the future.

"The additional sum I shall want shall not exceed $2,000," is the language of a borrower, and implies a previous loan now to be added to. The receipts are, on account of his share, or interest.

The assignment, signed by Brown, mentions no value given. It was a mere precaution to preclude a possible claim. The assignment of 1829, May 30, finally, is express and decisive 615*] as to the former assignment, being for security merely, and itself purports to assign and relinquish the remaining right of Goodwin. It recites a debt of $9.000; but the answer shows only $8.500, including the $2,000. So it continued to be a debt, and so was not a pay ment on a sale. If it were a sale, then the words "to secure you the sum I already owe you," must be construed to make that sum a part of the consideration of the sale; and it also would cease to be a debt. If it were a sale, then the assignment of 30th May, 1829, would not only recite a falsehood, but be an absurdity. It cannot be half sale and half mortgage; a sale for $2,000 and a mortgage for $6,000. The assignment of 1825 was therefore a mortgage, agreed by the act of the parties to be worth $8,000, and considered by Goodwin worth more than $20,000, and likely to be paid in cash in a year.

2. That such an assignment is in law a mortgage or security merely, the following cases prove: 1 Story Eq. Jur. sec. 1018; I Cruise (by Greenleaf) tit. 15, ch. 1; Conway v. Alexander, 7 Cranch, 218, 241; Hughes v. Edwards, 9 Wheat. 489; Morris v. Nixon, 1 How. 118, 122, 123, 124, 126, 127, 130, 131; Dougherty v. McCalgan, 6 Gill & Johns. 275, 280, 281.

3. That on mortgage, or pledge, or transfer, by way of security, the mortgagor is treated as the substantial owner, subject to the lien of the creditor. His right to redeem is an incident inseparable. It may be assigned or passed to his representatives, or to his insolvent trustee, or in bankruptcy, or a judgment creditor may claim to stand in his place and to redeem.

This principle applies to securities of chattels as well as of lands, and to choses in action as well as to either. Morris v. Nixon, 1 How. 123, 124, 126, 129; 5 Johns. 345; 2 Story Eq. Jur. sec. 1023, 1052; Dougherty v. McCalgan, 6 G. & J. 281, 282; Hudson v. Warner & Vance. 2 Harr. & G. 415; Hartley v. Russel, 2 Sim. & Stu. 244; Milne v. Walton, 2 Younge & Col. 354, 362.

III. That, therefore, Lyde Goodwin retained such a property and interest in the claim on Mexico, after its assignment to Oliver, as was liable in some way to be subjected to the payment of his debts by judgment. Being an equitable interest in a chose in action, it could not be subjected to the common law execution of fieri facias.

It could then be reached by one of two pro cesses only; either, 1st, by attachment in the nature of an execution; 2d, by bill in equity to subject the surplus.

The appellant insists that it could be subjected by either of those modes, and that the laying the attachment was a fit preliminary; and that the fraud is the same in either view. *1. By execution of attachment. [*616

a. The Act of 1715, sec. 7, gives any judg ment creditor of any person right, in lieu of any other execution, to sue out an attachment against the goods, chattels and credits, of the defendant, in his own hands, or in the hands of any other person.

The policy of our law is to subject every species of property to execution. Somerville v. Brown, 5 Gill. 422.

It is an execution. Gill. 246.

Baldwin v. Wright, 8

The attachment was intended to cover every species of property not liable to be taken by fi. fa., and for which, before plaintiff had been driven into equity to get hold of; and that it would not lie where a fi. fa., lay. For example

Fi. fa. lay only for chattels held by legal title. 10 G. & J. 226, 261; Harding v. Stevenson, 6 H. & J. 267. Attachment covers that by equitable title.

Legal estates in land, by the Act of 1732, are sold on fi. fa. Equitable estates, as equities of redemption, by attachment, but not to fi. fa. Ford v. Philpot, 5 Harr. & J. 312; 5 Johns. 336.

Goods consigned to merchants who had lien on them were not liable to fi. fa., but were to attachment. 6 Harr. & Johns. 267, 268; Nathan v. Giles, 5 Taunt. 558. The lien of a judgment could not be sold on fi. fa. but the judgment could be attached, and court could execute it. Wells v. Ghiselin, 1 Harr. & McH. 91.

Surplus money in sheriff's hands could not be taken on fi. fa. but might by attachment. 1 Harr. & Johns. 546; 5 Harr. & Johns. 312.

Attachment lies for a credit, or a chose in action, or for stocks, because they are not liable to fi. fa. Evans, Pr. 364.

But chattels in defendant's possession were not liable to attachment, because they could be taken by fi. fa. 3 Harr. & McH. 594, 615617.

Thus the policy of the attachment law was to give a residuary execution, covering every case not before covered. The words "goods and chattels, and lands, covering interests in lands, and goods and chattels, which could not be taken by fi. fa. and credits," being used to designate everything in the nature of a chose in action.

b. The claim on the Mexican government, assigned by Goodwin, was a credit of Goodwin in the hands of Oliver, and so liable to attachment in his hands.

The statute does not confine the attachment to credits in the hands of the debtor, but extends it to the credits of the defendant in the hands of the plaintiff, or any other person.

The most common case is the attaching the credit in the hands of the debtor, [*617 or person owing the money to the defendant.

But the Act does not define the subject mat

the stock-the right to receive the money, not merely the quarterly installment, be attached; and if so, in whose hands but the trustee's?

May, then, a credit be in the hands of any person but the debtor, who himself directly owes the money to the defendant?

A credit is a right to demand money from some one. It is equivalent to the legal phrase, a chose in action-a thing to be sued for.

Now, a right in A to recover money from B for the use of C, is matter of every day

Occurrence.

If D have judgment against C, may he not lay an attachment in the hands of A, who holds a credit or chose in action against B for the benefit of C, especially if B be out of the state?

2. The modern law recognizes the assignability of choses in action, operating an actual transfer proprio vigore of the title of the chose in action, or credit, from the assignor to the assignee, vesting the latter with all the rights of the former, the possession of the evidences, and the right to enforce the claim, as effectually as a bargain and a sale of lands. 2 Story, Eq. Jur. sec. 1057; Comegys v. Vasse, 1 Pet. 213, 215, 217; Spring v. S. C. Ins. Co. 8 Wheat. 268; Bohlen v. Cleveland, 5 Mason, 174; Harrison v. Sterry, 5 Cranch, 289, 300, 302; Evans et al. v. Merriken, 8 G. & J. 39, 46-49; Ex-parte South, 3 Swanst. 372, 373; Conard v. Atlantic Ins. Co. 1 Peters, 386, 441; Black v. Zacharie, 3 How. 483, 512.

As between successive assignments, the title vests according to the dates, a former being liable, however, to be postponed to a later one by failure to notify the person liable to the assignor in proper time. Anderson v. Thompkins, 1 Brock. 456; Hudson v. Warner and Vance, 2 H. & G. 415, 418, 427, 432; Houston v. Nowland, 7 G. & J. 480, 493; Loveridge v. Cooper, 3 Russ. 1; Cooper v. Tynmore, 3 Řuss. 60; 3 How. 483, 512.

3. By the assignment of 1825, therefore, the chose in action or credit belonging to Goodwin, and due by Mexico, was vested in and held by Oliver for the benefit of Goodwin, after paying his debt. He held the evidences, the sole legal right to prosecute and control it, to collect and receipt for it.

To refuse to apply the attachment to such a case, is to withdraw from its reach half the cases it was provided to remedy, forcing the judgment creditor back into a suit in equity; e. g., all cases where a credit or chose in action 618*] of a judgment debtor is in the hands of anyone, except the person ultimately liable to pay the money.

A consignee has sold goods and taken notes of the purchaser, not yet due, to the consignor. The goods could have been attached-may not their proceeds, in the shape of notes, in the hands of the consignee, on a judgment against the consignor?

Chattels and choses in action are assigned in trust, the debtors living out of reach of process, to sell and pay to A B. The chattels may be attached in the hands of the trustee-may not the bonds and notes be attached, so as to bind the proceeds when collected?

United States stock is held by a trustee for

So stocks of all non-resident corporations will escape execution, unless they be attachable in any hands holding the certificates for the person entitled to receive the proceeds.

The stock, like the debt, is a credit, the money payable ultimately by one person; but the right to receive it, the title to it, being in the hands of a third party for the owner, with the evidences on which alone it is payable. It is case of a credit in the hands of such party, and may be attached there.

The very point has been decided twice in Massachusetts. N. E. M. Ins. Co. v. Chandler, 16 Mass. 274, 279; 6 Mass. 339, 342. The Massachusetts law uses the words, "goods, effects and credits," equivalent to "goods, chattels and credits." Attachment laid on goods and notes for collection, in the garnishee's hands. Erskine v. Staley, 12 Leigh, 406.

Or put the case of a legacy specific, of a note, or chose in action, where executor is here, and person liable on the chose in action beyond process.

c. The attachment was rightly laid in Oliver's hands, for it must be laid in the hands of the possessor of the thing attached. Van Brunt v. Pike & Ward, 4 Gill, 270, 276.

And possession of the evidences, together with the assignment, vests the possession of the chose in action in transferee. Dearle v. Hall, 3 Russ. 1; Farmers' Bank of Delaware v. Beaston, 7 G. & J. 428, 429; Gardner v. Lochlan, 4 Myl. & Craig, 129, 133; Black v. Zacha. rie, 3 How. 483, 512.

That Oliver is legally chargeable with the possession of the evidences of debt, since they were under his control, and should have so stated. Morrice v. Livaby, 2 Bevan, 500; Attorney-General v. Bailiff of E. R. 2 Myln. & K. 35; 2 Danl. Ch. Pr. 259, 260; Woods v. Morsell, 105, 107.

*d. That the money had not been [*619 actually received, was no obstacle to a judg ment of condemnation, with a stay of execu tion till it should be collected; for the court has power to modify its judgments and process to suit that exigency of each case; e. g., where the property is subject to a lien, to have it ascer tained was to get at the surplus. Davidson's Lessee v. Beatty, 3 H. & McH. 594; Pratt v. Law, 9 Crauch, 456, 496; Serg. on Attach, 91, 94; 2 Rawl. 227.

And where laid in the hands of a debtor, on a debt not yet due, no plea of nulla bona is allowed; but condemnation is given, and execution stayed till debt due. Somerville v. Brown, 5 Gill, 399; Serg. on Attach. 101, 102, 109. Or where papers detained abroad. 4 Dall. 253; 2 Binney, 453; Serg. on Attach. 145.

So the court could have condemned Goodwin's interest, and either have sold it or evited its collection.

e. That the attachment, by way of execution, applies to all judgments, without regard to the residence of the defendant. 1 D. L. M. 22, 23; Act 1715, ch. 40.

1. The operative words of the section giving the remedy are of the widest possible scope.

2. The use of the word "absent" before de fendant, occurs only in the last clause of the section requiring notice of the garnishee.

3. They only create a doubtful implication, which is not sufficient to limit the universality of the enacting words.

preliminary to a bill in equity, to have it ap lied to the satisfaction of the judgment.

(c.) To this proceeding the facts of the assignment, by way of mortgage to, and the possession of the evidences by Oliver, were as esential as to the sustaining of the attachment. The untrue denials in the answers of Oliver

5. The 5th section of the Act implies, that an attachment may be levied on the goods of a resident. Printed out of place, 1 D. L. M. 763.

6. The oldest forms of attachment, by way of executions, apply to residents. 2 Harris Entries, 611; 2 Evan's Harris, 377.

7. The defendant must have been in the State before judgment could have been recovered; yet 2d section prescribes no way to show the removal.

8. The law of 1831, ch. 321, is declaratory, and not binding; the United States courts ought not to be allowed to raise an implication, so as to do by construction what it could not do by enactment.

9. It contravenes the whole purpose and policy of the attachment, by way of execution.

f. If, therefore, the court think the assignment of 1825, or any assignment before October, 1826, covered the commissions on the Mervin claim, they are covered by the above reasoning.

620*] But if not, yet Oliver, holding possession of the evidences, the right to receive the proceeds, and being the party directed to pay Goodwin, he held Goodwin's claim to the commissions as agent, sufficiently to make him a fit garnishee, as having that credit in his hands.

Though the court doubt as to the commissions and Mervin debt, that will not affect the mortgage of the share in the company.

This fund could have been reached by bill in equity.

(a.) A bill in equity is competent to compel the application of the equitable property, the choses in action and equities of redemption of a judgment debtor which cannot be reached by 1. fa. to the satisfaction of the judgment. Scott v. Scholly, 8 East, 467, 508, 509; Clayton v. Anthony, 6 Rand. 285; Dold v. Geiger, 2 Grat. 112; Halley v. Williams, 1 Leigh, 140; Hadden v. Spader, 20 Johns. 554, 563, 564, 568; 2 Johns. Cas.; McDermott v. Strong, 4 Johns. Cas. 687, 690, 692; Bayard v. Hoffman, 4 Johns. Cas. 450; Spader v. Davis, 5 Johns. Cas. 280; Hallett v. Thompson, 5 Page, 583; Griffith v. Fred. County Bank, 6 Gill & Johns. 424; Harris & Chauncey v. Alcock, 10 Gill & Johns. 251, 252; McDonald v. Bank U. S. 2 Pet. 107.

(b.) An execution is usually required as pree edent to suit in equity.

The attachment was such an execution. Even if no condemnation could have been had under it; yet neither can an equitable interest in chattels or land be sold under a fi. fa. at common law. But the fi. fa. is held to bind them, and a bill lies in equity to sell them.

So here, the attachment was the most appropriate form of execution to bind an interest, in the nature of a credit or a chose in action, as

The fraud gives the plaintiff an equal equity now to call on the court to do him justice by subjecting the fund to his judgment, after paying Oliver his debt and expenses.

The points raised by the counsel for the ap pellees were as follows:

The theory of the bill is, that the appellant had, by the attachment on the judgment of himself and co-plaintiffs, entitled himself to condemnation of Goodwin's funds, alleged to be in Oliver's hands as garnishee, and [*621 that Oliver, by his false and fraudulent answers, having deprived him of his legal right to such condemnation, equity will compel Oliver's estate to pay the money which, but for his unconscientious conduct, would have been recov. ered at law.

A right to condemnation, then, as against Oliver, and the loss of that right through his fraud and falsehood, are essential, on the appellant's own showing, to his success.

Neither of these elements are found in the case, as it appears on pleadings or proofs.

1st. The attachment was issued against law, and would, at the trial (which never came on, because the plaintiffs in the attachment discontinued it), have been quashed, and is therefore to be regarded as void. Act of Maryland, 1715, chap. 40, sec. 6; Waters & Caton, 1 Harris & McHenry, 407; Harden & Moores, 7 Harris & Johnson, 4.

2d. The attachment was irregular and void for another reason; that the Act of 1715 (above referred to), and adopted by the 100th rule of the Circuit Court of Maryland, authorized no

such writ in the case of a resident defendant.

Act of 1831, chap. 321.

3d. But conceding the attachment to have been regular, it could only take the "lands, tenements, goods, chattels, or credits," of Goodwin, in Oliver's hands (see Writ 19, 20), and there being none of these things in his lands, there was nothing to attach, and of course nothing to condemn. Houston & Nowland, 7 Gill & Johnson, 480; Meeker and Wilson, 1 Gallison, 419; Act of Maryland, 1810, chap. 160; Ford & Philpot, 5 Harris & Johnson, 312; 9 Cranch, 477. Campbell & Morris, 3 Harris & McHenry, 535;

4th. If there was anything in Oliver's hand at the time of the attachment, it was only Goodwin's claim on the government of Mexico, for assistance rendered to Mina, in his attempt to revolutionize Mexico when a province of Spain, in violation of our neutrality Acts; and such a claim has been decided by the Maryland courts, in the case of Goodwin's trustee against these appellees, to be of such a character that the law of Maryland will not recognize its existence, and of course no condemnation could be had of it.

5th. The discontinuance of the attachment was the voluntary act of the appellant; and as he was not bound by Oliver's answers to the

gaging the trust property for the benefit of Goodwin; or whether Oliver's claim under the assignee was valid or not. This inquiry was wholly irrelevant in the investigation, under the attachment proceeding. Nor was Oliver bound, in that investigation, to make any disclosure of the strength or weakness of his own title, which was hostile to that of the plaintiff. The discovery sought, was not of Oliver's equities, but of Goodwin's assets. Oliver's answers to the interrogatories were drawn, no doubt, by learned counsel, fully aware of the nature of the proceedings, and the rights of the parties under them. The answers were strictly true to the letter. The garnishee had not in his hands, "any funds, evidences of debt, stocks, certificates of stock, belonging to Lyde Goodwin, nor any acknowledgment by the Mexican government to said Lyde Goodwin," on which the attachment could be laid. What claims or 14 L. ed.

securities he himself had as a creditor of Goodwin, the plaintiff in that proceeding had no right to inquire, nor was Oliver bound to answer. If he had nothing which the plaintiff could attach, it was no fraud on plaintiff to keep his own counsel, and make no disclosure as to the nature of his own securities.

The decree of the Circuit Court is therefore affirmed.

Order.

This cause came on to be heard on the tran script of the record from the Circuit Court of the United States for the District of Maryland, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged and decreed, by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.

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