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.1 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 naked deposit to the use of the depositor, and is precisely within the provisions of the trustee law. Ball v. Gilbert, 12 Met. (Mass.) 404; Reynolds v. McKinney, 4 Can. 94. In New Hampshire, in an earlier case, the court decided that whether a wager be legal or illegal, and whether the party in a given case might or might not rescind an agreement for a wager, by virtue of which money was deposited with a stakeholder, his creditors cannot, without his assent, rescind such an agreement, unless he is insolvent or in embarrassed circumstances. Clark v. Gibson, 12 N. H. 380. Where a stakeholder in a wager is summoned as garnishee of the winning party, and the wager was determined without any demand upon the garnishee by the losing party for the money deposited by him, and he make no claim, judgment will be given against the garnishee for the whole sum in his hands. Wimer v. Pritchartt, 16 Mo. 252. After the money has been paid over, the winner cannot be charged as garnishee of the loser in respect thereof. McAllister v. Hoffman, 16 S. & R. (Pa.) 147; Speise v. McCoy, 6 Watts & S. (Pa.) 485. 1. Tierney v. McGarity, 103 Pa. St. 546. 2. Healey v. Butler, 66 Wis. 9: Lackland v. Gorfsche, 56 Mo. 267; Henry v. Murphy, 54 Ala. 246; Hart v. Rafter, 3 S. E. Rep. (Ga.) 699; Cable v. Wanemaker, 78 Pa. St. 501; Johnson v. Hersey, 73 Me. 291. Fraudulent vendee. Morris v. House, 32 Tex. 492. Fraudulent mortgage. Brainard 7. VanKuvan, 22 Iowa 261. Plaintiff in attachment after writ is served has such a specific lien as will authorize him to seek to set aside a fraudulent transfer of property, and where garnishment will lie such remedy should be used, and a creditor's bill will not lie. Humphreys v. Atlantic Milling Co., 10 S. W. Rep. (Mo.) 140. It is not the taking of a fraudulent transfer, but the reception of property, which makes the garnishee answerable. So if he did not have the property in his possession at the time of service of process, he cannot be charged as garnishee. Gutterson . Morse, 58 N. H. 529; Bailey V. Ross, 20 N. H. 302; Emerson v. Wallace. 20 N. H. 567. In such a case as mentioned in the text, an assignment for benefit of creditors made after garnishment will not defeat the lien. Thomas 7. Brown, 10 Atl. Rep. (Md.) 713. See also VIII., S. In the case of a void assignment for benefit of creditors the assignee may be garnished. Kimball v. Evans, 58 Vt. 655; Ferrall v. Farnen, 67 Md. 76; Vernon v. Upson, 19 N. W. Rep. Wis. 400. Or his vendee, if he has not already paid the price. Dixon v. Hill, 5 Mich. 104; Johnson v. Hersey, 73 Me. 291. Partnership Assets.-The funds of an insolvent firm, paid by one partner upon his private debt, without the consent of the copartner, may be attached in the hands of the private creditor by trustee process in behalf of a firm creditor, the private creditor knowing when he received the funds that they belonged to the firm. The principle applies, although the note upon which the payment is made be the single partner's note with the copartner's name thereon as a surety, and although the money be collected by a draft given in the name of the firm to the order of an agent or the private creditor. Johnson v. Hersey, 73 Me. 291. If a vendee who has fraudulently received goods sell them to an innocent purchaser before garnishment, he may nevertheless still be held for the proceeds of such property. Risser v. Rathebun, 71 Iowa 113. A promissory note fraudulently assigned before maturity can be garnished by a creditor of the assignor, a creditor's bill not being the proper remedy creditor, and not against the debtor,1 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 A judgment creditor may maintain garnishment proceedings against the vendee in a fraudulent conveyance of debtor's property, although after the commencement of the proceedings a second execution upon his judgment has been levied upon the property included in the conveyance. Sutton v. Hasey, 58 Wis. 556. Personal judgment given for value of the property in excess of garnishee's debt not erroneous. Sutton v. Husey, 58 Wis. 556. Real Estate. It was not the intention of the legislature that the real estate of a debtor which he has conveyed to another in fraud of creditors should be reached by the process of garnishment, nor that the one holding title to it should be charged as a garnishee with a money judgment for its value. Boyle v. Maroney, 73 Iowa 70. 1. Curtis v. Steever, 7 Vroom (N. J.) 308; Garrettson v. Kane, 3 Dutch (N. J.) 208. Garnishee may be held liable for property conveyed to him in fraud of creditors, even though the conveyance is valid, against the debtor himself. Cummings v. Favey, 44 Mich. 40. So a holder of a chattel mortgage void as to creditors, cannot set off against the goods the money which he may have advanced to the mortgagor. Cummings v. Favey, 44 Mich. 40. A creditor of such debtor may treat the sale as void, and subject the goods to the payment of his claim; or he might compel the fraudulent vendee to account for the purchase price of the goods. But he cannot have both remedies. Bradford v. Beyer, 17 Ohio St. 388. However, if he elect to take an assignment of a promissory note given for such property, and the property is subsequently taken by other creditors of the vendor, there is a failure of consideration for the note, and the assignee cannot collect the note. Bradford 7. Beyer, 17 Ohio St. 388. The validity of a trust deed as against creditors of the grantor may be tested in garnishment proceedings. First Nat. Bank of Stevens Point v. Knowles, 67 Wis. 374. A judgment obtained by the garnishee against his debtor, showing that he had a legal title from such debtor, will not prevent the attaching plaintiff from showing fraud as against the creditors of the principal defendant. Raymond v. Richmond, 78 N. Y. 351. 2. Favey v. Cummings, 41 Mich. 376. The holder of a chattel mortgage void as to creditors having no preference by legal proceedings cannot go behind judgments recovered against the principal defendant to enquire the dates at which debts matured. Cummings v. Favey, 44 Mich. 39. 3. Healey v. Butler, 66 Wis. 9; Bradford v. Beyer, 17 Ohio St. 388. A garnishee who is party to a fraudulent transfer of property, cannot retain such property as against the vendor's execution creditor, because the garnishee's notes for a part of the purchase money are in the hands of a person not before the court. St. Louis Brokerage Co. v. Cronin, 14 Mo. App. 586. 4. Thompson v. Pennell, 67 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. Thompson v. Pennell, 67 Me. 159. 1. Hodges v. Coleman, 76 Ala. 103. Payment After Service.-A garnishee cannot pay over money to the defendant after garnishment, though defendant receive it as agent of, and in payment of a note given to the defendant's son, for property purchased of the father, but which, it was afterward claimed, belonged to the son, if in fact the property belonged to the father, and the use of the son's name was merely to defraud defendant's creditors, and the garnishee knew that the object of the garnishment was to reach this money. Kesler v. St. John, 22 Iowa 567. Where a garnishee after being summoned pays to a third person the debt, which the garnishment was meant to reach, but the debt was actually owing to such third person who held the legal title, and the garnishee was not informed that the debt was claimed as belonging to the principal defendant, he cannot properly be charged as garnishee. Hemstedt v. German Bank, 46 Ark. 537. Payment of the above debt might have been stopped by delivery of a proper notice to the bank specifying that it was attached as the property of the principal defendant. German Bank v. Hemstedt, 42 Ark. 65. 2. Drake on Attach. 551; Davis v. Ham, 3 Mass. 33; Modul v. Mosseaux, 29 La. An. 228; Bishop v. Young, 17 Wis. 46; Word v. Buxton, 108 Mass. 102; Hoven v. Wentworth, 2 N. H. 93; Miller v. Goddard, 34 Me. 102; Otis v. Ford, 54 Me. 104; Jordan v. Jordan, 75 Me. 100; Hopson v. Dinan, 48 Mich. 612. Many contracts for which money liability may possibly arise are not subject to garnishment. Jones v. Crens, 64 Ála. 368: Hurst v. Home Protection Ins. Co., 81 Ala. 174; Lewisohn v. Waganer, 76 Ala. 412; Lec. & Loun Ins. v. Weems, 69 Ala. 584; Henderson v. Ala. Gold L. Ins. Co., 72 Ala. 32; Alexander v. Pollock, 72 Ala. 137. Where an insurance company has not waived proof of loss, there is no indebtedness which can be garnished in a suit against the insured. Garnishment will not lie to impound a debt which is simply contingent. Lovigoy v. Ins. Co., 1 Fed. Rep. 63; Gies v. Bechtner, 12 Minn. 279; Davis v. Davis, 49 Me. 283; Nickerson v. Nickerson, So Me. 100. Compare Phoenix Ins. Co. v. Willis, 6 S. W. Rep. (Tex.) 25. Such waiver may be a question of fact, and it is error to take the question from the jury. Nickerson v. Nickerson, So Me. 100. There have been statutes enacted permitting contingent claims to be subject to garnishment, but garnishment process cannot reach sums that will not come due until the performance of a contract at some future time; and claims for the payment of such moneys are not "contingent" within the reason of act 256 of 1879, which permits contingent claims to be garnished. Webber T. Bolte, 51 Mich. 113. Check on funds in a bank held to be a contingent claim. Hancock v. Colye, 99 Mass. 187; s. c., 96 Am. Dec. 730. So held in case of a draft. Larrabee v. Walker, 71 Me. 441. Subscription to Corporate StockStockholder not liable as garnishee for unpaid subscription to capital stock, when the call for payment has not been made. Teague v. Le Grant, 5 So. Rep. (Ala.) 287; McKelvy v. Crockett, 18 Nev. 238; Meintz v. East St. Louis Rail Mill Co., 89 Ill. 48. In a recent case in Alabama, STONE, C. J., said: "Chancery might have taken juridiction, the corporation being insolvent, and itself made calls and enforced their collection for the benefit of creditors. Glenn v. Lemple, So Ala. 159. A common law court, the more especially under statutory garnishment, is without the power to do so." Teague . Le Grant, 5 So. Rep. (Ala.) 287. A stockholder can only be made liable to an execution creditor of the corporation on garnishment, when he is in default to the corpora 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 or are not subject to garnishment; and the liability of the 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 v. Reynolds, 71 Mo. 594. The credits called out of the hands of the stockholder 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 it at the time the debt was constructed. McLaren v. Franciscus, 43 Mo. 452. Stockholder liable as garnishee for his unpaid subscription when called. In re Warwick etc. R. Co., 2 De G., F. & J. 354; Peterson v. Sinclair, 83 Pa. St. 250; Woolridge v. Holmes, 78 Ala. 568. Where legally liable the creditors of the corporation may proceed by attachment and garnishment against resident stockholders, though no service be had on the corporation. And a secret agreement to release stockholders from further assessment will not bar recovery in such a proceeding. Turner v. Alabama Mining Co. 25 Ill. App. 144. Seamen's wages held not chargeable in garnishment until the vessel has arrived at the port of unlading, the possibility that the ship may never arrive being a contingency. Wentworth v. Whittemoore, 1 Mass. 471; The Lizzie Williams, 11 Fed. Rep. 619; Taber v. Uge, 12 Pick. (Mass.) 105. Same as seamen's wages in coasting trade. McCarty v. Steam Propeller, 4 Fed. Rep. 818. Contra, Eddy v. O'Hara, 132 Mass. 56; White v. Dunn, 134 Mass. 271. 1. See note 6, post. Where promise to pay is absolute, future rent has been held subject to garnishment. Rowell v. Felker, 54 Vt. 526. Contra, in Michigan, where, under the same statutory provision, the court said: "Comp. L. 6503, in providing that demands to become due, absolutely, may be garnished, refers only to claims which are already fixed in amount or capable of being fixed, and not dependent for their validity or amount on anything to be done or earned in the future or on the continued liability for which may be changed by events.' Thorp v. Preston, 42 Mich. 511. 3. Caldwell v. Silva, 23 Mo. App. 417; Balis v. N. O. R. R. Co., 4 Abb. Pr. (N. Y.) 72. If there be anything to be done by the defendant as a condition precedent to his recovering, the plaintiff cannot obtain judgment against the garnishee without showing the condition has been performed. Phoenix Ins. Co. v. Willis, 6 S. W. Rep. (Tex.) 825; B. & O. Ry. Co. v. McCullough, 12 Gratt. (Va.) 595; Katz v. Sorsby, 34 La. An. 588; Ross v. McKinney, 2 Rawle (Pa.) 227; Kettle v. Harvey, 21 Vt. 301; Otis v. Ford, 54 Me. :04. 4. So held as to usurious interest money, where the principal defendant has the right to reclaim. Eslet v. Rhodes, 1 B. Mon. (Ky.) 316; Graham v. Moore, 7 B. Mon. (Ky.) 53; Boardman v. Roe, 13 Mass. 104; Barker v. 2. Thorndyke v. De Wolf, 6 Pick. (Mass.) 120; Smith v. Cahoon, 37 Me. 281; Wore v. McGowan, 65 Me. 534; Webber v. Bolte, 51 Mich. 113; Foxton v. Kucking, 51 Me. 346. 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 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; or if he assume the position of a litigant; or if by collusion or fraud, he occasion any unreasonable delay. He is liable for interest if he be served with a void process.9 The presumption is that the money was not used during the Estey, 19 Vt. 131; Ranson v. Hays, 39 A stockholder who has not paid the full amount of his subscription to such stock cannot be garnished before an assessment or call is made. McVey v. Crockett, 18 Nev. 238; Brown v. Union Ins. Co., 3 La. Ann. 177; Bingham v. Rushing, 5 Ala. 405. Not so, however, if the garnishee is liable, but no action will lie until demand is made. The plaintiff may, in such case, garnish the debtor. VIII., 2, supra. 1. Wetherell v. Evarts, 17 Vt. 219. Contra, Weil v. Poston, 77 Mo. 284. By statute in Wisconsin, if the liability is not contingent at time of judgment, garnishee may be made subject. Jones v. St. Ouge, 30 N. W. Rep. (Wis.) 927. See also Hurst v. Home Protection Ins. Co., 81 Ala. 175. 2. If by agreement, express or implied, the garnishee's debt is one bearing interest, still he ought not to be charged with interest while prevented by legal operation of an attachment from making payment. Little v. Owen, 32 Ga. 20; Cohen v. St. Louis Perpetual Ins. Co., 11 Mo. 374; Clark v. Powell, 17 La. 177; Candee v. Skinner, 40 Conn. 464; Irwin v. P. & C. R. R. Co., 43 Pa. St. 488; Osborn v. Bank of United States, 9 Wheat. (U. S.) 738; Blair v. Porter, 2 Beas. (N. J.) 270; Prescott v. Parker, 4 Mass. 170; Selleck v. French, 1 Am. L. Cas. 527. Contra, Abbott v. Stinchfield, 71 Me. 213. But where a person attaches money in his own possession he will be charged with interest. Willings . Consequa, Pet. (C. C.) 303. 3. Lyman v. Orr, 26 Vt. 119; Adams v. Cordis, 8 Pick. (Mass.) 260; Quigg v. Kittredge, 18 N. H. 137; Fitzgerald v. Caldwell, 2 Dall. (Pa.) 215; Updegraff v. Spring, 11 S. & R. (Pa.) 190. Damages. If the interest would have accrued by way of damages for a wrongful detention of the principal sum by the debtor, he cannot be charged with interest for the period of time that the attachment suit was pending. Prescott v. Parker, 4 Mass. 170; Rennell v. Kimball, 5 Allen (Mass.) 356; Irvin v. Pittsburgh etc. R. Co., 43 Pa. St. 488; Swanscot Machine Co. v. Partridge, 5 Fost. (N. H.) 369; Huntress v. Rice, III Mass. 213; Swanscot Machine Co. v. Partridge, 25 N. H. 371; Smith v. Flanders, 129 Mass. 322; Abbott v. Stinchfield, 71 Me. 213. 4. Mackey v. Hodgson, 9 Pa. St. 468. 5423 5. Brown v. Silsby, 10 N. H. 521; Blodgett v. Gardiner, 45 Me. Abbott v. Stinchfield, 71 Me. 213. 6. Mattingly v. Boyd, 20 How. (U. S.) 128; Woodruff v. Bacon, 35 Conn.97. 7. Chase v. Manhardt, 1 Bland (Md.) 333; Stevens v. Gwatheney, 9 Mo. 636; Moore v. Lowry, 25 Iowa 336; s. c., 95 Am. Dec. 790; Shahan v. Tallman, 39 Kan. 185. Interest as Damages.-Where defendant in an action defends upon the merits of his case and is garnished in another court for the same debt and released from garnishment before determination of first suit, interest will be allowed for whole time. Albion Lead Works v. Citizens' Ins. Co., 3 Fed. Rep. 197. 8. Fitzgerald v. Caldwell, 2 Dall. (Pa.) 215; 1 Yeates 274; Jones v. Man. Natl. Bk., 99 Pa. 317; Risser v. Rathbun, 32 N. W. Rep. (Iowa) 198. 9. Hawkins v. Ga. Natl. Bk., 61 Ga. 106. |