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has passed beyond the control of the garnishee, or he has fulfilled the obligation for which it was given before the service of process, he is not liable. I

13. As Affected by Fraud. - Where a garnishee sets up title in himself, it is entirely competent for the plaintiff to impeach that title on account of fraud or other invalidating circumstance, and thereby show that the property is still due for the defendant's debts. The fraud must, however, be against the attaching

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naked deposit to the use of the depos- It is not the taking of a fraudulent itor, and is precisely within the provi- transfer, but the reception of property, sions of the trustee law. Ball 2. Gil- which makes the garnishee answerable. bert, 12 Met. (Mass.) 404; Reynolds 7'. So if he did not have the property in McKinney, 4 Can. 94:

his possession at the time of service of In New Hampshire, in an earlier process, he cannot be charged as garnicase, the court decided that whether a shee. Gutterson v'. Morse, 58 N. H. wager be legal or illegal, and whether 529; Bailey Ross,

N. H. the party in a given case might or 302; Emerson v. Wallace, 20 N. H. might not rescind an agreement for a 567. wager, by virtue of which money was In such a case as mentioned in the deposited with a stakeholder, his cred- text, assignment for benefit of itors cannot, without his assent, rescind creditors made after garnishment will such an agreement, unless he is insol- not defeat the lien. Thomas z'. Brown, vent or in embarrassed circumstances. 10 Atl. Rep. (Md.) 713.

See also Clark v. Gibson, 12 N. H. 380.

VIII., S. Where a stakeholder in a wager is In the case of a void assignment for summoned as garnishee of the winning benefit of creditors the assignee may party, and the wager was determined be garnished. Kimbali v. Evans, 58 Vi. without any demand upon the gar- 655; Ferrall z'. Farnen, 67 Md. 76; Ver. nishee by the losing party for the non v. Upson, 19 N. W. Rep. Wis. 400. money deposited by him, and he make Or his vendee, if he has not already no claim, judgment will be given paid the price. Dixon v. Hill, 5 Mich. against the garnishee for the whole 104; Johnson v. Hersey, 73 Me. 291. sum in his hands. Wimer v. Pritch- Partnership Assets.—The funds of an artt, 16 Mo. 252.

insolvent firm, paid by one partner After the money has been paid over, upon his private debt, without the conthe winner cannot be charged as gar- sent of the copartner, may be attached nishee of the loser in respect thereof. in the hands of the private creditor by McAllister v. Hoffman, 16 S. & R. (Pa.) trustee process in behalf of a firm 147; Speise v. McCoy, 6 Watts & S. creditor, ihe private creditor knowing (Pa.) 485.

when he received the funds that they 1. Tierney v. McGarity, 103 Pa. St. belonged to the firm. The principle

applies, although the note upon which 2. Healey v. Butler, 66 Wis. 9; the payment is made be the single partLackland v. Gorfsche, 56 Mo. 267; ner's note with the copartner's name Henry v. Murphy, 54 Ala. 246; Hart v. thereon as a surety, and although the Rafter, 3 S. E. Rep. (Ga.) 699; Cable r'. money be collected by a draft given in Wanemaker, 78 Pa. St. 501; Johnson the name of the firm to the order of an v. Hersey, 73 Me. 291. Fraudulent agent or the private creditor. Johnvendee. Morris v. House, 32 Tex. 492. son v. Hersey, 73 Me. 291. Fraudulent mortgage.

Brainard If a vendee who has fraudulently VanKuvan, 22 Iowa 261.

received goods sell them to an innocent Plaintiff in attachment after writ is purchaser before garnishment, he may served has such a specific lien as will nevertheless still be held for the proauthorize him to seek to set aside a ceeds of such property.

Risser . fraudulent transfer of property, and Rathebun, 71 Iowa 113. where garnishment will lie such remedy A promissory note fraudulently asshould be used, and a creditor's bill signed before maturity can be garnished will not lie. Humphreys v. Atlantic by a creditor of the assignor, a credMilling Co., 10 S. W. Rep. (Mo.) 140. itor's bill not being the proper remedy

546.

creditor, and not against the debtor, and be confined to transactions which occurred previous to the time of making the affidavit on which they are attacked.2

In case fraud be shown, the relief which the creditor may have is not limited to that to which the debtor is entitled, as it is when he seeks to recover a demand of his debtor against the garnishee, untainted with fraud.3 So where the law provides that property mortgaged, pledged or delivered to a trustee, may be made available to creditors, the right of the garnishee to set-off against the property the amount of his lien does not apply when the conveyance is absolute in form and fraudulently intended by the parties to be so as to creditors, but as between themselves to be as security only. The garnishee, in such case, should be holden absolutely, and not on condition of payment to him of the consideration of the conveyance.4 before judgment. Humphreys ?'. Atlan- account for the purchase price of the tic Milling Co., 10 S. W. Rep. (Mo.) goods. But he cannot have both reme140. See Anthony z'. Wood, 96 N. Y. dies. Bradford v. Beyer, 17 Ohio St. 388. iSo.

However, if he elect to take an asA judgment creditor may maintain signment of a promissory note given garnishment proceedings against the for such property, and the property is vendee in a fraudulent conveyance of subsequently taken by other creditors debtor's property, although after the of the vendor, there is a failure of concommencement of the proceedings a sec- sideration for the note, and the assignee ond execution upon his judgment has cannot collect the note. Bradford U. been levied upon the property included Beyer, 17 Ohio St. 388. in the conveyance. Sutton v. Hasey, The validity of a trust deed as against 58 Wis. 556.

creditors of the grantor may be tested Personal judgment given for value of in garnishment proceedings. First Nat. the property in excess of garnishee's Bank of Stevens Point v. Knowles, debt not erroneous. Sutton v. Ilusey, 67 Wis. 374. 58 Wis. 556.

A judgment obtained by the garReal Estate.—It was not the intention nishee against his debtor, showing that of the legislature that the real estate of he had a legal title from such debtor, a debtor which he has conveyed to will not prevent the attaching plaintiff another in fraud of creditors should be from showing fraud as against the reached hy the process of garnishment, creditors of the principal detendant. nor that the one holding title to it Raymond v. Richmond, 78 N. Y. 351. should be charged as a garnishee with 2. Favey v. Cummings, 41 Mich. a money judgment for its value. Boyle 376. V. Maroney, 73 Iowa 70.

The holder of a chattel mortgage void 1. Curtis v. Steever, 7 Vroom (N. as to creditors having no preference by J.) 308; Garrettson v. Kane, 3 Dutch legal proceedings cannot go behind (N. J.) 208.

judgments recovered against the prinGarnishee may be held liable for cipal defendant to enquire the dates at property conveyed to him in fraud of which debts matured. Cummings v. creditors, even though the conveyance Favey, 44 Mich. 39. is valid, against the debtor himself. 3. Healey v. Butler, 66 Wis. 9; BradCummings v'. Favey, 44 Mich. 40. ford v. Beyer, 17. Ohio St. 388.

So a holder of a chattel mortgage A garnishee who is party to a frauduvoid as to creditors, cannot set off lent transfer of property, cannot retain against the goods the money which he such property as against the vendor's may have advanced to the mortgagor. execution creditor, because the garCummings v. Favey, 44. Mich. 40. nishee's notes for a part of the purchase

A creditor of such debtor may treat money are in the hands of a person not the sale as void, and subject the goods before the court. St. Louis Brokerage to the payment of his claim; or he Co. v. Cronin, 14 Mo. App. 586. might compel the fraudulent vendee to 4. Thompson v. Pennell, 07 Me. 159.

If the property or debt, the subject of garnishment, is claimed by a third person, he should be made a party to the suit, and his right to the property, including the question of fraud, may be

, fully litigated. 1

14. Where Liability Is Contingent.—To charge a garnishee for a debt due to defendant it must be absolutely payable at present or in the future, and not dependent on any contingency ? at the

The garnishee cannot invoke equity. not waived proof of loss, there is no Thompson v. Pennell, 67 Me. I

159.

indebtedness which can be garnished 1. Hodges v. Coleman, 76 Ala. 103. in a suit against the insured. Garnish

Payment After Service.-A garnishee ment will not lie to impound a debt cannot pay over money to the defend- which is simply contingent. Lovigoy r. ant after garnishment, though defendant Ins. Co., 11 Fed. Rep. 63; Gies v. receive it as agent of, and in payment Bechtner, 12 Minn. 279; Davis v. Davis, of a note given to the defendant's son, 49 Me. 283; Nickerson v. Nickerson, 80 for property purchased of the father, Me. 100. Compare Phenix Ins. Co. v. but which, it was afterward claimed, be- Willis, 6 S. W. Rep. (Tex.) 25. longed to the son, if in fact the prop- Such waiver may be a question of erty belonged to the father, and the use fact, and it is error to take the question of the son's name was merely to de- from the jury. Nickerson v. Nickerfraud defendant's creditors, and the gar- son, So Me. 100. nishee knew that the object of the gar- There have been statutes enacted nishment was to reach this money. permitting contingent claims to be subKesler v. St. John, 22 Iowa 567. ject to garnishment, but garnishment

Where a garnishee after being sum- process cannot reach sums that will not moned pays to a third person the debt, come due until the performance of a which the garnishment was meant to contract at some future time; and claims reach, but the debt was actually owing for the payment of such moneys are not to such third person who held the legal “contingent” within the reason of act title, and the garnishee was not in- 256 of 1879, which permits contingent formed that the debt was claimed as claims to be garnished. Webber i belonging to the principal defendant, Bolte, 51 Mich. 113. he cannot properly be charged as gar- Check on funds in a bank held to be a nishee. Hemstedt v. German Bank, 46 contingent claim. Hancock v. Colye,

Payment of the above debt 99 Mass. 187; S. C., 96 Am. Dec. 730. might have been stopped by delivery of So held in case of a draft. Larrabee a proper notice to the bank specifying 1. Walker, 71 Me. 441. that it was attached as the property of Subscription to Corporate Stockthe principal defendant. German Bank Stockholder not liable as garnishee for v. Hemstedt, 42 Ark. 65.

unpaid subscription to capital stock, 2. Drake on Attach. 551; Davis v. when the call for payment has not been Ham,

3 Mass. 33; Modul v. Mosseaux, made. Teague v. Le Grant, 5 So. Rep. 29 La. An. 228; Bishop v. Young, 17 (Ala.) 287; McKelvy v. Crockett, 18 Wis. 46; Word v. Buxton, 1o8 Mass. Nev. 238; Meintz v. East St. Louis 102; Hoven v. Wentworth, 2 N. H. 93; Rail Mill Co., 89 Ill. 48. Miller v. Goddard, 34 Me. 102; Otis v. In a recent case in Alabama, STONE, Ford, 54 Me. 104; Jordan v. Jordan, 75 C. J., said: “Chancery might have taken Me. 100; Hopson v. Dinan, 48 Mich. juridiction, the corporation being in solv612.

ent, and itself made calls and enforced Many contracts for which money lia- their collection for the benefit of creditbility may possibly arise are not subject ors. Glenn v. Lemple, So Ala. 159. A to garnishment. Jones 7'. Crens, 64 Ala. common law court, the more especially 368; Hurst v. Home Protection Ins. under statutory garnishment, is without Co., 81 Ala. 174; Lewisohn v. Wagan- the power to do so.” Teague 2. Le er, 76 Ala. 412; Lec. & Loun Ins. v. Grant, 5 So. Rep. (Ala.) 287. Weems, 69 Ala. 584; Henderson v. Ala. A stockholder can only be made Gold L. Ins. Co., 72 Ala. 32; Alexan- liable an execution creditor of der v. Pollock, 72 Ala. 137.

the corporation garnishment, Where an insurance company has when he is in default to the corpora•

Ark. 537

to

on

time of service of process. The contingency must, however, affect the property itself, or the debt which is supposed to exist, and not merely the title to the property in the possession of the trustee, or his liability on a contract which he actually made, but the force and effect which is in litigation. In order to render garnishee liable on a conditional contract, the plaintiff must show both the contract and the fulfillment of the condition.3 Rights which the judgment debtor has the option of enforcing

are not subject to garnishment;4 and the liability of the

or

tion for instalments due on his stock The contingency must be such as or for calls made by the directors. If may preclude the principal from any his liability is not due according to the right to call the trustee to settle or to terms of his subscription, and no call account, and not a mere uncertainty as has been made by the directors, the cred- to how the balance may stand; Dwinel itor's remedy is by special execution v. Stone, 30 Me. 384; Čutter v. Perkin, awarded under $ 13, p. 291, Wagner's 47 Me. 557; Downer v. Topliff, 19 Vt. Statutes, which allows execution against 399; Webster Wagon Co. v. Peterson, the property of a stockholder to the 27 W. Va. 314; Ware v. Gowen, 65 Me. amount of his stock owned, together 534; and must affect the debt itself, and with any amount unpaid thereon. not the liability to have the effects or Simpson 7'. Reynolds, 71 Mo. 594. The credits called out of the hands of the stock holder is liable who holds such trustee in a particular manner. Downer stock at the time special execution v. Curtis, 25 Vt. 650. issues, and not the person who owned Where promise to pay is absolute, it at the time the debt was constructed. future rent has been held subject to McLaren v. Franciscus, 43 Mo. 452. garnishment. Rowell v'. Felker, 54 Vt.

Stockholder liable as garnishee for 526. Contra, in Michigan, where, under his unpaid subscription when called the same statutory provision, the court In re Warwick etc. R. Co., 2 De G., F. said: "Comp. L. 6503, in providing that & J. 354; Peterson v. Sinclair, 83 Pa. St. demands to become due, absolutely, 250; Woolridge v. Holmes, 78 Ala. 568. may be garnished, refers only to claims

Where legally liable the creditors of which are already fixed in amount or the corporation may proceed by attach- capable of being fixed, and not dependment and garnishment against resident ent for their validity or amount on anystockholders, though no service be had thing to be done or earned in the future on the corporation. And a secret agree- or on the continued liability for which ment to release stockholders from fur- may be changed by events.” Thorp v. ther assessment will not bar recovery Preston, 42 Mich. 511. in such a proceeding. Turner v. Ala- 3. Caldwell v. Silva, 23 Mo. App. bama Mining Co. 25 Ill. App. 144. 417; Balis v. N. O. R. R. Co., 4 Abb.

Seamen's wages held not chargeable Pr. (N. Y.) 72. in garnishmen' until the vessel has If there be anything to be done by arrived at the port of unlading, the the defendant as a condition precedent possibility that the ship may never to his recovering, the plaintiff cannot arrive being a contingency. Wentworth obtain judgment against the garnishee v. Whittemoore, i Mass. 471; The Liz- without showing the condition has been zie Williams, 11 Fed. Rep. 619; Taber performed. Phænix Ins. Co. v. Willis, v. Uge, 12 Pick. (Mass.) 105.

6 S. W. Rep. (Tex.) 825; B. & 0. Ry. Same as seamen's wages in coasting Co. v. McCullough, 12 Gratt. (Va.) trade. McCarty v. Steam Propeller, 4 595; Katz v. Sorsby, 34 La. An. 588; Fed. Rep. 818. Contra, Eddy v. O'Hara, Ross v. McKinney, 2 Rawle (Pa.) 227; 132 Mass. 56; White v. Dunn, 134 Kettle v. Harvey, 21 Vt. 301; Otis v.

Ford, 54 Me.:04. 1. See note 6, post.

4. So held as to usurious interest 2. Thorndyke v. De Wolf, 6 Pick money, where the principal defendant (Mass.) 120; Smith v. Cahoon, 37 Me. has the right to reclaim. Eslet 7. 281; Wore v. McGowan, 65 Me. 534; Rhodes, 1 B. Mon. (Ky.) 316; Graham Webber v. Bolte, 51 Mich. 113; Foxton v. Moore, 7 B. Mon. (Ky.) 53; Boardv. Kucking, 51 Me. 346.

v. Roe, 13 Mass. 104; Barker 7'.

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Mo. 445.

garnishee is not affected by the fact that subsequent to the service of the trustee process, but before the final trial, the debt became absolute. 1

15. For Interest. —The garnishee, while prevented by legal process from discharging his debt, is not chargeable with interest, whether such interest would have been due by contract 2 or not, 3 and it makes no difference whether the attachment terminate in favor of the plaintiff or defendant. He is chargeable with interest, however, if he has put the defendant's money at interest ;5 or if he has used it as his own ;6 or if he assume the position of a litigant; or if by collusion or fraud, he occasion any unreasonable delay.8 He is liable for interest if he be served with a void process.

The presumption is that the money was not used during the Estey, 19 Vt. 131; Ranson v'. Hays, 39 Kittredge, 18 N. II. 137; Fitzgerald r.

Caldwell, 2 Dall. (Pa.) 215; Updegraff A stockholder who has not paid the v. Spring, 11 S. & R. (Pa.) 190. full amount of his subscription to such Damages.-If the interest would have stock cannot be garnished before an as- accrued by way of damages for a sessment or call is made. McVey v. wrongful detention of the principal Crockett, 18 Nev. 238; Brown v. Union sum by the debtor, he cannot be Ins. Co., 3 La. Ann. 177; Bingham v. charged with interest for the period of Rushing, 5 Ala. 405.

time that the attachment suit was pendNot so, however, if the garnishee is ing. Prescott v. Parker, 4 Mass. 170; liable, but no action will lie until de- Rennell v. Kimball, 5 Allen (Mass.) mand is made. The plaintiff may, in 356; Irvin r'. Pittsburgh etc. R. Co., 43 such case, garnish the debtor. VIII., 2, Pa. St. 488; Swanscot Machine Co. 2. supra.

Partridge, 5 Fost. (N. H.) 369; Hunt1. Wetherell v. Evarts, 17 Vt. 219. ress v. Rice, ui Mass. 213; Swanscot Contra, Weil v. Poston, 77 Mo. 284. Machine Co. v. Partridge, 25 N. H. 371;

Ву statute in Wisconsin, if the Smith v. Flanders, 129 Mass. 322; liability is not contingent at time of Abbott v. Stinchfield, 71 Me. 213. judgment, garnishee may be made sub- 4. Mackey v. Hodgson, 9 Pa. St. ject. Jones V. St. Ouge, 30 N. W. 468. Rep. (Wis.) 927. See also Hurst v. 6. Brown v. Silsby, 10 N. H. 521; Home Protection Ins. Co., 81 Ala. 175. Blodgett v. Gardiner, 45 Me. 5+2;

2. If by agreement, express or im- Abbott v. Stinchfield, 71 Me. 213. plied, the garnishee's debt is one bear- 6. Mattingly v. Boyd, 20 How. (U. ing interest, still he ought not to be S.) 128; Woodruff v. Bacon, 35 Conn.97. charged with interest while prevented 7. Chase v. Manhardt, 1 Bland (Md.) by legal operation of an attachment 333; Stevens v. Gwatheney, 9 Mo. 636; from making payment. Little v. Owen, Moore v. Lowry, 25 Iowa 336; s. c., 95 32 Ga. 20; Cohen v'. St. Louis Perpetu Am. Dec. 790; Shahan v. Tallman, 39 al Ins. Co., LI Mo. 374; Clark J. Pow

Kan. 185. ell, 17 La. 177; Candee v. Skinner, 40 Interest as Damages.—Where defendConn. 464; Irwin v. P. & C. R. R. Co., ant in an action defends upon the merits 43 Pa. St. 488; Osborn 7. Bank of of his case and is garnished in another United States, 9 Wheat. (U. S.) 738; court for the same debt and released Blair v. Porter, 2 Beas. (N. J.) 270; from garnishment before determination Prescott v. Parker, 4 Mass. 170; Selleck of first suit, interest will be allowed for v. French, 1 Am. L. Cas. 527. Contra, whole time. Albion Lead Works v. Abbott v. Stinchfield, 71 Me. 213.

Citizens' Ins. Co., 3 Fed. Rep. 197. But where a person attaches money in 8. Fitzgerald 7. Caldwell, 2 Dall. his own possession he will be charged (Pa.) 215; 1 Yeates 274; Jones v. Man. with interest. Willings 7. Consequa, Natl. Bk., 99 Pa. 317; Risser v. RathPet. (C. C.) 303.

bun, 32 N. W. Rep. (Iowa) 198. 3. Lyman v. Orr, 26 Vt. 119; Adams 9. Hawkins v. Ga. Natl. Bk., 61 Ga. v. Cordis, 8 Pick. (Mass.) 260; Quigg v. 106.

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