The question raised by the rule taken in this case is, whether the plaintiff, under the circumstances, is entitled to a judgment against the Mayor, Aldermen and Citizens of Pittsburgh?

WILLIAMS, A. J.-It is a sufficient reason for refusing to make the rule absolute in this case, that it does not appear that the City of Pittsburgh, in its corporate capacity, is made a garnishee in this proceeding. If the plaintiff intended to make the city a garnishee, and if, as his counsel contends, the city has been actually summoned as garnishee, the fact ought to appear by the record of the proceedings in the case. But no such fact is disclosed by the record. Neither the precipe for the executionattachment, the writ itself, nor the sheriff's return thereto, shows the corporation to be a garnishee. How, then, can the Court go behind these in order to ascertain what was the intention of the plaintiff? Besides, the question here is not what was the intention of the plaintiff, but what was actually done? Was the city, in point of fact, summoned as a garnishee? This can only be ascertained by a reference to the writ and the sheriff's return.

The plaintiff's counsel, on the argument of the rule, contended that the service of the execution-attachment on John B. Guthrie, Mayor of the City of Pittsburgh, Andrew McMasters, Esq., Treasurer of the City of Pittsburgh, and R. E. M'Gowan, City Regulator, was a good service of the writ upon "the Mayor, Aldermen and Citizens of Pittsburgh," although not named in the writ or precipe therefor, and that the return of the sheriff of such service was tantamount to a return of service of the execution-attachment on the said corporation.

But the addition of their official titles to the names of the garnishees can only be considered as matters of description— mere designations of the persons named as garnishees.

If John B. Guthrie had, in answer to plaintiff's interrogation, acknowledged himself to be individually and personally indebted to the defendant Rowley in a sum sufficient to satisfy the plaintiff's judgment, could there be any question but that the plaintiff would be entitled to have judgment entered in his favor against him as garnishee on such answer, although he is styled Mayor of the City of Pittsburgh in the writ of execution-attachment and

the sheriff's return of service? Would it ever have occurred to the counsel as an objection to the equity of such judgment, that there had been no service of the writ upon John B. Guthrie individually, and that he was not in point of fact summoned as garnishee-but that the corporation of the City of Pittsburgh was the party served in the person of its chief magistrate and the real garnishee? And if such objection had been made, would the Court have been expected to give to it a moment's serious consideration?

The plaintiff's counsel has evidently become satisfied that the position assumed by him on the argument of the rule is untenable; for since then he has asked leave to permit the sheriff to amend his return so as to read, "Executed, summoning the Mayor, Aldermen and Citizens of Pittsburgh by serving a copy on John B. Guthrie, Mayor, &c."

The affidavits of two of the sheriff's deputies, setting forth the circumstances and manner of the service of said attachment, have been presented to the Court in support of the proposed amendment. It is not necessary to decide whether in any and all cases the Court would refuse permission to a sheriff, after the expiration of his term of office, to amend his return, when such amendment would affect the rights or change the position of the parties to the proceeding. It is a sufficient reason for refusing permission to amend in this case that the affidavits presented do not warrant or sustain the proposed amendment, and it is therefore refused.

The City of Pittsburgh not having been made a garnishee in this proceeding, the plaintiff is consequently not entitled to have the rule made absolute. But if the Court has erred in deciding that the city is not made a garnishee by the service of the attachment in this case and the sheriff's return thereto, and in refusing permission to the sheriff to amend his return in the manner proposed, would the plaintiff, under the facts of this case, supposing the city summoned as garnishee, be entitled to a judgment against the city on the answers filed? Is a debt owed by a municipal corporation for work and labor done by a contractor in grading and paving one of its public streets, liable to an executionattachment at the suit of a judgment creditor of such contractor?

Or, can the money provided for the payment of such debt be attached in the hands of the treasurer of such corporation? We are of the opinion that such a debt is not contemplated by the act, and that under its provisions it cannot be attached.

The plaintiff's counsel relies upon the provisions of the 36th and 37th sections of the Act of June 16th, 1836, to sustain the attachment in this case, but these must be construed in connection with the preceding sections (the 32d, 33d and 34th) of the same act, in which the reference is manifestly to corporations other than those of a municipal character.

In Buckley v. Eckert, 3 Barr 368, it is ruled that money held by a person in his official capacity, as treasurer of a board of school directors, in common with other money, to be applied towards the payment of teachers, according to the rules and regulations of the Acts of Assembly for the maintenance of public schools, and not as a private debt due from him to the defendant, cannot be attached under the Act of 1836. The principle of this decision is applicable to the case in hand, and there is equal reason here for its adoption. "Great public inconvenience," the Court say, "would ensue, if money could thus be arrested in the hands of officers, and they be made liable to all the delay, embarrassment and trouble that would ensue from being stopped in the routine of their business, compelled to appear in Court, employ counsel, and answer interrogatories, as well as take care that the proceedings are regularly carried on, and bail to return duly given. If a precedent of this kind were set, there seems to be no reason why the state or county treasurers, or other fiscal officers of the Commonwealth, or of municipal bodies, may not be subjected to the levying of attachments, which has never been attempted nor supposed to come within the attachment law."

If, then, the moneys in the hands of the treasurer of a municipal body or corporation, provided for or appropriated to the payment of a debt due from such corporation, may not be attached in the hands of its treasurer, why should the debt owed by such corporation be liable to an execution-attachment, and the corporation itself summoned as garnishee?

A municipal corporation can only act through its proper officers

and duly authorized agents; and some public inconvenience would ensue from an attachment in the one case, as in the other.

It is unnecessary to decide whether, on an execution-attachment, a partnership debt can be attached at the suit of a creditor of one of the parties for his private debt.

Although it has been held that a foreign attachment will lie in such case (McCarty v. Emlen, 2 Yeates 190), it is by no means clear that an execution-attachment would (or could on principle) be sustained against a partnership fund for a private debt of one of the parties. It would in most cases, if allowed, be attended with difficulty and inconvenience; and in some cases, it would result in positive injustice.

The rule, for the reasons given, is discharged.

Morrel v. The Bank, 2 Phila. 61; 1 T. & H. Practice 950, note; Erie v. Knapp, 5 Casey 173.

In the District Court of the United States for the Western District of Pennsylvania. In Admiralty.

ELLIOTT ET AL. v. THE JAMES NELSON.

(Vol. I., p. 5, 1853.)

1. In an action for collision, the libellant must prove not only negligence and misconduct in the respondent, but also ordinary care and diligence in him

self.

2. Masters of steamboats must carry, between sunset and sunrise, one or more signal lights that may be seen by other boats navigating the same waters; but the act does not extend to coal boats.

3. But coal boats must have on board such signal lights as may be seen and must show them in a reasonable time; and their owners must prove beyond a reasonable doubt that proper caution and diligence were used to avoid collision.

THE opinion of the Court was delivered by

IRWIN, J.-The decision of the question arising out of the petition, answer and evidence, may, it is supposed, in argument, establish a precedent as to what kind of a signal, and the time of its continuance, will be required by coal boats in navigating the

Ohio River, to sustain or resist a claim for damages in cases of collision. But unless something material is omitted which the law requires to be done, it will rarely happen from a difference of facts that a rule applicable to one case can safely be applied to another; so that a decision resting upon particular facts in evidence can only be a precedent in cases where the facts are precisely similar.

The Nelson and the suffering boats were descending the river Ohio about midnight of the 10th of November, last, both occupying the middle of the channel; the night being dark and rainy, the water about twelve feet in depth, and the speed of the Nelson about ten miles an hour, when the coal boats were run down and totally lost.

It is alleged by the libellants, that this disaster was occasioned by the negligence of the officers of the Nelson, by disregarding the signal light of the boats; by its improper speed in such a night, in the vicinity of a number of coal boats, and by the lookout having left his post a few minutes before the collision took place. To this, it is answered by the respondents, that there was no signal light shown by the coal boats which could have been seen before or at the time of collision; that the light, a signal, was in an old and battered lantern, emitting only feeble and fitful rays, and got up suddenly when there was not time to prevent a collision; that the speed of the Nelson was only such as was usual at night, and that the lookout was only away from his post about a minute, not long enough to interfere with

distinctly

called

his duty.

To enable the libellant to recover, he must not only show some negligence and misconduct on the part of the respondent, but care and diligence on his own part. The law makes it

ordinary

the duty of the master and owner of every steamboat, whether employed on the sea, or lakes, or rivers, to carry between sunset and sunrise one or more signal lights, that may be seen by other boats navigating the same waters. The Nelson was provided with such a light; and if there was any negligence or misconduct in navigating that boat, it was in disregarding what the libellants call the signal light of the coal boats. This is the material point to be considered; for if that light was insufficient, and not in