#### THOMAS DEAVER vs. JAMES KEITH, & AL.

Under the attachment law, a judgment, taken against a defendant, who has not appeared, or some of whose property has not been attached, is utterly void.

Where a note payable in specific articles has been given by A. to B., then assigned to the defendant in the attachment, and afterwards by him transferred to C., who is summoned as a garnishee, this note is not the subject of attachment in the hands of C. and he is not bound on his garnishment to answer for its value.

In no ease, where the claim ol the defendant against the garnishee, in a suit by attachment, rests in unliquidated damages, can the demand be attached.

The cases oi Armstrong v. Harshaw, 1 Dev. 189. Hightower v. Murray, 1 Hay. 21, and Hugg v. Booth, 2 Ired 228, cited and approved.

Appeal from the Superior Court of Law of Buncombe county, at the Fall Term, 1844, his Honor Judge Battle presiding.

The case presented by the record is as follows: The plaintiff took out an attachment against one James Keith, an absconding debtor, returnable beforo a single magistrate. This attachment is dated the 10th November, 1836. On the 12th of November, a notice is issued, by the plaintiff, Thomas S. Deaver, to John A. Sorrell, summoning him as a garnishee in the case. And on the 21st of November, another notice for the same purpose is issued by John G. Blackwell, a constable, td th^Rune John A. Sorrell, to appear on the 26th November, before one Hunt, a justice of the peace. Those notices are endorsed by the constable as follows: “ Returned a true copy of the within by me, J. G. Blackwell.” The magistrate, Mr. Hunt, dismissed the proceedings on the day of trial, the 26th November. And the plaintiff appealed to the County Court. And at the February Sessions, 1837, of the court, being the return Term, an order was made, directing a scire facias to be issued to Joseph M. Rice, the administrator of Sorrell, he having died in the mean time, i: to make him a party to the suit as defendant.” At the February Term, 1839, the court *375ordered publication to be made against Keith, as a non-resi dent, for six weeks. And publication was made, agreeably to the order. At the February Term, 1840, the suit was, by order of the County Court, dismissed, and an appeal taken by the plaintiff to the Superior Court. In this court, at the September Term, 1842, the cause was submitted to a jury, but without any pleas, and against both, when the jury returned a verdict against Keith. The court gave judgment in favor of the plaintiff against James Keith, for the amount of the claim against him, and judgment in favor of Rice, as the administrator of Sorrell, upon the ground that Sorrell owed nothing to Keith. At the same Term of the Superior Court, an order was made, that J. M. Rice shall be summoned, to shew whether he has in his hands any property belonging to James Keith. The notice issued to him, as the administrator of John A. Sorrell, and, in the character of such administrator, he rendered his garnishment, in which he stated, that, “ as administrator of John A. Sorrell, he has collected a certain note for the amount of $170 in trade, for which in cash he received $108; that this note was made by one William R. Gillespie to one Stephen Griffiths, and was assigned by him to one James Keith, who assigned it to John A. Sorrell, among whose papers, after his death, it was found, &c.” Upon this state of facts, the issues, whatever they may have been, were tried at the September Term, 1844. The presiding judge gave judgment against the plaintiff, and he appealed.

Francis for the plaintiff.

No counsel for the defendant in this court.

Nash, J.

We cannot perceive, with what propriety his Honor could have given any other judgment. In fact and in truth the cause was out of court,, both as it respected Keith, the defendant in the action, and Sorrell, the garnishee. The judgment against Keith, obtained in the Superior Court at the September Term, 1842, was an entire nullity. He was not in court, either by his person or his property. The record shows, that he was not an inhabitant of this State, and no pros *376erty of his had been attached, to answer as a foundation for any proceedings against him. The judgment against him, then, was not merely voidable, but was absolutely void.— Armstrong and another v. Harshaw, 1 Dev. 189. If it were not so, the first principles of justice would be violated. An individual might be stript of his property, without being heard or having an opportunity to be heard, or driven to expensive litigation to maintain his rights. In this case, Keith was not and never had been in court. The attachment is only intended to compel an appearance. Hightower v. Murray, 1 Hay. 21. At the time this singular judgment was obtained against Keith, the court gave judgment in favor of Joseph M. Rice, as the administrator of John A. Sorrell, that he, Sorrell, at the time he was summoned as a garnishee, and when he made his garnishment, was not indebted to James Keith, and had not in his hands any property or effects of said Keith, liable to the attachment. The cause would then have been entirely out of court, but for an order made simultaneously, that notice should issue to Joseph M. Rice to answer as garnishee, as to his indebtedness to Keith. A notice was issued to him, and he was summoned in his character as administrator of Sorrelh to make his garnishment. He answered, that, among the papers of his intestate, he found a note originally given or made by one Gillespie, to a man of the name of Griffiths, for a certain sum of money to be discharged in trade, in other words to be discharged in specific articles, which note had been assigned to Keith, and by him to Sorrell. As administrator of Sorrell, Rice was not bound to answer as a garnishee. He had already in this case had a judgment pronounced in his favor, that his testator neither owed Keith any thing, nor had he any property or effects of Keith in his hands, and this judgment was pronounced in relation to this identical Gillespie note, and was at that time, and still is, in full force and unreversed. There is, however, another objection to the proceedings in this case, so far as Rice, the garnishee, is concerned, or as he is concerned in his representative capacity. It is not pretended that either Sorrell or Rice had any thing in *377their hands as the property of Keith, except the Gillespie note. That note was not an assignable instrument, not being for" money absolutely, but for so much money to be discharged in trade. Was it the subject of attachment? We think it was not. The case of Hugg and Bell against Booth, 2 Ired. 282, contains a full statement of the doctrine on this subject. By the act of 1777, no provision is made for the case, where the garnishee is indebted for specific articles. This omission is supplied by the act of 1793. This act provides — . “ When a garnishee shall declare that the money or specific articles, due by him, will become payable or deliverable by him at a future day, &c.” The act leaves us in no doubt, as to the nature of the obligation for the delivery of the specific articles, embraced and meant by it. It is confined to the obligation or assumpsit of the garnishee himself to the defendant in the attachment, either to pay a particular sum of money in specific articles, or absolutely to deliver a certain quautity of specific articles, as a horse or cow, or a hundred bushels of corn. In either case, debt would lie at the common law, if the obligation was not complied with. And in no case, where the claim of the defendant in the action against the garnishee rests in unliquidated damages, can the demand be attached. This principle is fully established by the case last cited. The instrument, upon which this question arises, was not given by either Sorrell or Rice to Keith, but was given by Gillespie, and came by assignment to Keith, and by him to Sorrell. It is not therefore such an obligation for the delivery of specific articles, as comes within the attachment law. Neither Keith nor Sorrell had any title in law to it, and neither could maintain any action on it in his own name. When Rice received the money on it, he received it not for the use of Keith, but as administrator upon the estate of Sorrell, for the use of his estate, or for the use of Griffiths. But the estate of Sorrell was already discharged, by a judgment of that court, and in the same case, from all liability to the plaintiff on account of Keith. Qua-cunque via data, therefore, the judge who tried the cause, was guilty of no error in -setting aside the verdict of *378the Jury, and giving judgment for Rice, which put the whole cause out of court.

PeR Curiam, Judgment affirmed.