MELVILLE V. BROWN. 671, Chancellor Kent reviews all the cases, and fully sustains the doctrine I have stated. They are not in But it was said on the argument, that an attaching creditor stands upon better ground, than one who sues by the ordinary process of the Court: that by attaching the goods in the hands of the sheriff who held them under execution, the plaintiff in attachment has acquired a lien upon them. This however is a mistake. The attachment no doubt fastens upon the surplus goods, and perhaps upon the surplus money, if any, but the service of an attachment gives the plaintiff no lien upon the goods, in any proper or legal sense of the term. Goods when properly attached, are strictly in custody of the law. the custody, or subject to the control, of the plaintiff in attachment; Austin v. Wade, 2 Penn. R. 997. He never had possession of them, and could not therefore acquire a lien upon them, such as an attorney has upon deeds and papers, for his costs; a factor, upon goods consigned to him, for his claims as factor; a common carrier, upon the goods he has carried, for his wages; or an innkeeper, upon the horse of his guest, for the amount of his bill. Liens, are of two kinds; 1st. Such as I have enumerated, and some others, which the party acquires by his own act; or 2dly. Such as the law creates; as in case of judgment and execution. A judgment, is a lien upon land, and an execution, upon personal property. But the plaintiff in attachment, before judgment, has no such lien. It is true, the defendant in attachment cannot recover the possession and control of the property, without satisfying or securing the plaintiff: not however, because the plaintiff has a lien; but because the statute has impounded the goods for the double purpose of compelling an appearance by the defendant; and ultimately, satisfying the plaintiff, if any thing is due to him. A plaintiff in attachment, then, acquires no more right to inquire into the fraud of a prior judgment, than one who has commenced his suit by capias or summons. He is after all, only a suitor, claiming to be a creditor, who may turn out not to be such; or if a creditor, may have other resources, from which he may receive satisfaction. And this suggests another difficulty. If we suffer a creditor at large, whether before, or after suit commenced, to interfere, what sort of an issue, or rather, MELVILLE v. BROWN. issues, shall we frame? For it seems to me, we must make at least three distinct issues. Viz: 1st. Whether the applicant is a creditor? And this must be a preliminary issue: for if he is not a creditor, then he has no right to interfere any further. 2dly. and also as a preliminary inquiry, whether, if the applicant is such creditor, he has not some other resources for the satisfaction of his debt; for, if he has, then he has no right to interrupt the judgment and execution. And 3dly. whether the judgment complained of, is fraudulent, or not; which would be a useless inquiry, if the applicant was not a creditor; or being a creditor, might get his money from some other source. In Gerard v. Basse et al. 1 Dall. R. 119, a motion was entertained by the Court, to set aside a judgment, in behalf of creditors under a domestic attachment. Whether it was before or after judgment in attachment, does not appear, but the application was not on the ground of fraud, and the judgment was set aside as to one of the defendants, because it had been entered against two, on the bond and warrant of one only. This case certainly gives no countenance to the motion under consideration. In Frazier v. Frazier, 9 Johns. R. 80, a feigned issue was ordered on motion in behalf of a creditor; whether a judgment creditor or not, the case does not state. But it appears by a case in 20 Johns. Rep. to which I shall presently refer, that the applicant was a judgment creditor. In Lawless v. Hackett, 16 Johns. R. 149, a judgment was opened for the want of a specification, as required by the statute of New York; but it was done at the instance of a judgment creditor. The same thing was done in Brinkerhoff v. Taylor, as appears by the case of Brinkerhoff v. Marvin, 5 Johns. C. R. 320 &c. But in Wintringham v. Wintringham, 20 Johns. R. 296, the question whether any but a judgment creditor can interfere on the ground of fraud, came directly before the Court, and the Court say; "The application is in behalf of a creditor at large, not a judgment creditor. In Frazier v. Frazier (9 Johns. 80,) according to our recollection, the motion was in behalf of a judgment creditor," (that it was so, appears by a note to the case.) "The case of Wiggins v. Armstrong, (2 Johns. Chan. R. 144) MELVILLE V. BROWN. is analagous: and the Chancellor after examining the cases, refused to grant the party relief, until he had completed his title at law, by judgment and execution. The power exercised by this Court, in staying executions, and setting aside judgments, on the ground of fraud, is an equitable power: and if a Court of Chancery will not grant relief, except in favor of a judgment creditor, a fortiori this Court will not." In our own Reports, I find no case, to sustain this motion. In Wood v. Hopkins, 2 Penn. R. 689, the judgment had been irregularly entered, and was opened at the instance of the administrators of the defendant. In Milnor v. Milnor, 4 Halst. 93, this Court set aside a judgment on the ground of irregularity, at the instance of a third person, but he was admitted by the case, to be a creditor, and the Court, whether right or wrong in other respects, expressly take notice of that fact. And in the case of Reed v. Bainbridge, 1 South. R. 351; the Court sustained the motion of Schenck, on the ground, that he was a purchaser and in possession of the land affected by the judgment. But in citing this last case, I always beg to be understood as dissenting from the decision of the Court, so far as relates to the validity of the judgment, and the right of Schenck to the relief granted him. But none of these cases justify an interference at the instance of a creditor at large, on the ground either of irregularity or fraud. Nor do any of the cases cited by Mr. Justice Rossell in Reed v. Bainbridge, support such a proceeding; for the case of Frazier v. Frazier, 9 Johns. R. 80, to which he refers, was as I have shewn, upon the application of a judgment creditor. I have pursued this subject further than necessary-certainly further than I should have done, if I had not understood that some members of the bar have supposed, that an attaching creditor, before he obtains judgment, has a right in this way to call in question the fairness of a judgment against his debtor. In my opinion he has not, and therefore on this ground, if there was no other, the rule must be refused. FORD, J. I concur in omnibus, and especially as to the case of Reed v. Bainbridge. RYERSON, J. concurred in refusing the rule upon the insuf 16 370 47e 187 HOAGLAND, GUARDIAN, &c. v. EXECUTORS OF SCHENCK. ficiency of the affidavit, intimating no opinion on the second objection. Rule refused. JOHN S. HOAGLAND, Guardian, &c., v. THE EXECUTORS of JOHN In Case. Interest upon a specific legacy of money, is to be computed after and from the expiration of one year after the testator's death, unless otherwise directed by the Will, although the fund liable therefor, may not have come to the executors' hands within the first year after testator's decease. This cause was submitted without argument, at the last term, upon the following State of the Case, and the briefs of P. I. Clark attorney of the plaintiff, and J. S. Green for the defendant. STATE OF THE CASE. This was an action of assumpsit, brought to recover what is alleged to be due on a legacy left under the Will of John Schenck. The parties agree upon the following statement of facts. John Schenck the testator died on the 22d day of August, 1825, having duly made and published his last Will and testament, bearing date the 12th August 1823, by which, among other things he orders and directs that "out of the nett proceeds of my real and personal estate, I give and bequeath unto my executors hereinafter named, the survivor and survivors of them, the sum of one thousand dollars, upon this especial trust and confidence, and to the intent and purpose following, that is to say, that my executors shall place the same out at interest on landed security, or such security as the Orphan's Court may approve, and to remain at interest until my son Abraham shall return into this township, HOAGLAND, GUARDIAN, &c. v. EXECUTORS OF SCHENCK. or until his eldest child shall attain the age of twenty-one years, which shall first happen. If he return before then, that my executors may in their discretion, pay to my son Abraham from time to time as they receive the same, any sum or sums of money not exceeding the annual interest of the said sum bequeathed to them as aforesaid, that may be reasonable and proper for his assistance and support; my intention being that he shall have the benefit thereof towards his comfortable support, but that the same shall be paid by my executors, as they shall be satisfied his occasions require, and be paid into his own hands only, for which his own voucher, or his actual receipt of the money only, shall be a discharge, and shall not be liable at all for his debts or engagements,or be called out of the hands of my said Executors, by any proceedings against him, to satisfy his creditors, and that the interest continue to be thus applied by my executors during his natural life; and after his decease, the balance of interest if any remaining unexpended, for his support as aforesaid, together with the principal sum, shall be equally divided between and paid to his children, that may be then living, and in case any of them should have died leaving issue, such issue to take the parent's share; and in case my said son Abraham should die or should not return to this township until his eldest child arrived to the age of twenty-one years, then the principal and interest of the said legacy to be equally divided between and paid to the children of my said son Abraham, as they shall attain the age of twenty-one years, and I do likewise direct, authorize and impower, my executors hereinafter mentioned, the survivor or survivors of them as soon as shall be convenient after my decease, to make sale of all my real estate, either at public or private sale, as they shall think most expedient, for the highest and best price that can be obtained for the same, on such terms of payment as they shall think fit, the money not paid down to be secured by mortgage on the property, and to make, execute and deliver to the purchasers thereof, good and sufficient deeds of conveyance in fee-simple." Abraham Schenck the legatee named in the Will, about the end of the year 1823, returned into the township of Amwell, being the township named in said Will, and was sued, committed to jail and took the benefit of the insolvent laws, and shortly afterwards left the State of New Jersey, and died in Berks county, State of |