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pendency of the suit. Although in some States he is presumed to use it unless he pays it into court.2

The foregoing rules are confined in their operation to the garnishee's liability to judgment in favor of the plaintiff for interest accrued pendente lite. When the whole of the debt garnisheed by the plaintiff is not required to meet the plaintiff's claim, it would appear that the garnishee is liable to the principal defendant for interest on the balance of the debt whilst the proceedings were pending.3

16. To Defendant After Garnishment. -We have heretofore stated. the effect of garnishment upon the effects or credits in the hands of the garnishee and the rights of the principal defendant, and liability of the garnishee up to the time of judgment.

Garnishment, being an effectual attachment of the credits and effects of the defendant in the possession of the garnishee, it follows that while the garnishment proceedings are pending, if he allows the property to leave his hands, or pays the debt, he does so at his peril, and it will be no defence to the attachment lien of the plaintiff in garnishment.4

Where judgment has been had against the garnishee in due course of law, it acts as a judicial assignment of the debt which

1. Moore v. Lowry, 25 Iowa 336; Morris v. Hall, 18 Me. 332; Blodgett v. Gardiner, 45 Me. 542.

2. Candee v. Webster, 9 Ohio St. 452; Work . Glaskins, 33 Miss. 539; Smith v. German Bank, 60 Miss. 69; Templeman v. Fauntleroy, 3 Rand. (Va.) 434; Adams v. Cardis, 8 Pick. (Mass.) 260; McCann v. Board, I Dana (Ky.) 338, in which it is said he will be charged interest unless He brings the money into court.

3. Sickman v. Lapsley, 13 S. & R. (Pa.) 224.

4. Even though it were honestly made, and with the advice of counsel, if the same were made unlawfully. Johann v. Rufner, 27 Wis. 195.

A trustee is liable for goods taken from his possession by a wrong doer after service of process. Despatch Line of Packets v. Bellamy Mfg. Co., 12 N.

H. 205.

But not if taken before such service of process, and they never came into his possession again. Kidder v. Page, 48 N. H. 38.

5. Webb v. Miller, 24 Miss. 638; New Orleans R. Co. v. Long, 50 Ala. 498. See Hitt v. Lacey, 3 Ala. 104, as

to costs.

As to the procedure, where garnishee is liable to the defendant upon a judgment, see Chandler v. Faulkner, 5

Ala. 567; Hagadon v. Campbell, 24
Ala. 375.

It does not matter that the proceedings have been irregular, as long as they were not void. See Palmer v. Ballard, 3 Stew. (Ala.) 326; Tubb v. Madding, Minor (Ala.) 129.

But garnishee will not be protected in payment of judgment against himself, based on void proceedings, and garnishee may enquire into jurisdiction of court rendering judgment against defendant in attachment, in a proceeding on writ of error to reverse the judgment pronounced against himself, and if that court had no jurisdiction, the judgment against the garnishee will be reversed. Pierce v. Carlton, 12 Ill. 358; s. c., 54 Am. Dec. 410.

Where a suit was commenced by garnishment under attachment upon two notes, and afterwards, and before trial, another note between the same parties fell due, and by an amendment was included in the complaint, and the judgment embraced the amount of all three of the notes, held, that as against a garnishee who pays such judgment, the same is not absolutely void, although the proceedings were irregular and the judgment perhaps erroneous; but that the judgment was such the garnishee might regard making payment, and such

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is conclusive upon the defendant in the principal action, and will bar his recovery against the garnishee to the amount of the judgment. But a judgment discharging the garnishee upon the ground of non-liability is not conclusive upon the defendant,2 nor is he precluded from recovering more than was paid on the judgment.3

IX. THE EFFECT OF GARNISHMENT.-The service of process of garnishment operates to place the property in the hands of the garnishee, constructively, in custodia legis, and is an effectual attachment of the property and effects of the defendant in the garnishee's possession,5 differing from attachment by levy only that it gives him the right to hold the garnishee personally

might rely upon in defence to a subsequent action against him by the principal defendant. Schoppenhast v. Bollman, 21 Ind. 280. See also Gunn v. Howell, 35 Ala. 144.

1. Ladd v. Jacobs, 64 Me. 347; Brown v. Dudley, 33 N. H. 511; Hirth v. Pfeifle, 42 Mich. 32; Allen v. Watt, 79 Ill. 284; Ross v. Pitts, 39 Ala. 605; Morgan v. Neville, 74 Pa. St. 52; B. & O. R. Co. v. May, 25 Ohio St. 347; Wigall v. Union C. & M. Co., 37 Iowa 129; Canada v. Detrick, 63 Ind. 485; Sessions v. Slevens, 1 Fla. 233; s. c., 46 Am. Dec. 339- And such judgment is a good defence to an action by an assignee subsequent to the garnishment. Bunker v. Gilmore, 40 Me. S8; New man 7. Manning, 79 Ind. 218; Bushnell v. Allen, 48 Wis. 460.

When a debt has been recovered from a debtor by garnishee process under an attachment proceeding in a court of competent jurisdiction in another State, the recovery is a protection in Illinois to the garnishee against his original creditor, and the fact that the debt may have been put into a judgment does not change the rule. Allen v. Watts, 79 Ill. 284.

But a party claiming protection against the suit of the principal defendant, subsequent to the garnishment proceeding, because of the judgment therein against him, must show that all the proceedings therein are legal and valid. Edler v. Hasche, 67 Wis. 653. However, a judgment against a garnishee without satisfaction thereof, is no defence to an action by the creditor, the principal defendant. Sharpe v. Wharton, 85 Ala. 225.

2. Ruff v. Ruff, 85 Pa. St. 333; Puffer v. Graves, 26 N. H. 256; Cameron v. Stollenwerck, 6 Ala. 704.

3. Freeman on Judg., § 167; Brown v. Dudley, 33 N. H. 511; Barton v. Allbright. 29 Ind. 489. And this right is available to the assignee of the defendant. Tams v. Bullitt, 35 Pa. St. 308.

The judgment rendered is not evidence against the defendant where answer had not been controverted. Jones v. Kolisenski, 11 Ala. 637.

4. Reed v. Fletcher, 39 N. W. Rep. (Neb.) 437; Northfield Knife Co., v. Shampleigh, 39 N. W. Rep. (Neb.) 788; Compare Bigelow v. Andres, 31 Ill. 322. See, however, Smith v. Člinton Bridge Co., 13 Bradw. (Ill.) 572.

So it has been said that, "Ordinarily property is not in custodia legis until actually seized and reduced into possession by the officer; under the law of attachment it is by the levy of the officer that creates the lien.' McGarry v. Lewis Coal Co., 93 Mo. 237; s. c. 3 Am. St. Rep. 522; Bank of Mo. v. Bredow, 31 Mo. 523; Bigelow v. Andress, 31 Ill. 322; Walcott v. Keith, 22 N. H. 196.

But there are authorities which hold that garnishment places the property in custodia legis. Brashear v. West, 7 Pet. (U. S.) 608; Mattingly v. Boyd, 20 How. (U. S.) 128. Compare Staniels v. Raymond, 4 Cush. (Mass.) 314.

5. Hucker v. Stevens, 4 McLean (U. S.) 535; Kennedy v. Brant, 6 Cranch (U. S.) 187; Martin v. Fareman, 18 Ark. 249; Burlingame v. Bell, 6 Mass. 318; Swett v. Brown, 5 Pick. (Mass.) 178; Blaisdell v. Ladd, 14 N. H. 129; Renneker v. Davis, 10 Rich. (S. Car.) Eq. 289; Wilder v. Weatherhead, 32 Vt. 765; in re Peck, 16 Nat. Bank Reg. 43; Renneker & Glover v. Davis, 10 Rich. (S. Car.) Eq. 289.

liable for the value of the property in his possession, instead of securing a clear and full lien upon the specific property. It creates no specific lien upon the defendant's property 2 in favor

1. Drake on Attach. (6th ed.) 453; Booth . Gist, 39 N. W. Rep. (Iowa) 794; Walcott v. Keith, 22 Fost. (N. H.) 196; Moore v. Holt, 10 Gratt. (Va.) 284; Winner v. Hoyt, 68 Wis. 278; McConnell v. Denham, 72 Iowa 494. Compare McGarry v. Lewis Coal Co., 93 Mo. 237; Johnson v. Gorham, 6 Cal. 195.

No "vested right" is secured until final judgment against the garnishee is rendered. Tate v. Moorhead, 65 N. Car. 687.

In Vermont, garnishment was termed an "inchoate lien." Wilder v. Weatherhead, 32 Vt. 765; Cooke v. Cooke, 43 Md. 522; Curtis v. Moore, 20 Md. 93; Poley v. Bitters, 34 Md. 650.

In South Carolina, a creditor who sues by attachment, and thus gains a lien on assets attached, has no right, for any balance due him after exhausting his lien, to come in with other creditors and participate with them in the distribution of unattached assets of the absent debtor. Renneck v. Davis, 10 Rich. (S. Car.) Eq. 289.

Where the statute makes the garnishee liable for property coming into his hands,and for obligations incurred after service of process, the lien attaches in such cases the same as to that in possession when service was made. Aldrich v. Woodcock, 10 N. H. 99; Parker v. Parker, 2 Hill Eq. (S. Car.) 35; Loyless v. Hodges, 44 Ga. 647; Stevens v. Dillman. 86 Ill. 233.

NICHOLSON, C. J.: "If the service of garnishment acts as satisfaction of the defendant's debt, as in case of direct levy of execution, the creditor has no other indemnity; he can look only to the responsibility of the garnishee, even if the garnishee fails to make proper return of the property of the debtor. But as the garnishee is simply an agent for the custody of the debtor's effects, upon his default, the creditor can either waive his right to proceed against the garnishee, and proceed by alias execution against the garnishee, and then resort to his judgment against his debtor for any unsatisfied balance. This is the necessary result of the legal fact that the service of the garnishment does no more than vest in the garnishee a special title as a custodian for the court, and divests the title of the debtor

only so far as to restrain his power to regain his property while it is in the custody of the garnishee. So long as the property is in the custody of the garnishee, the attaching creditor cannot resort to his remedy by execution against the principal defendant. If he does so, he thereby waives his right to look to the property in the hands of the garnishee, and the debtor at once has the right to reclaim the property." Beamont v. Easton, 12 Heisk. (Tenn.) 421.

The lien cannot be divested by any arrangement between the defendant and garnishee. Cottrell v. Varnum, 5 Ala. 229; s. c., 39 Am. Dec. 323.

Legal Effect.-MINSHALL, J.: "The legal effect of the garnishment of a debtor of the defendant is where judg ment is rendered for the plaintiff to transfer the indebtedness of the garnishee to the plaintiff in the attachment so far as the same may be necessary to satisfy the judgment. Secor v. Whitter, 39 Ohio St. 218. And as a security is always regarded as an incident to the debt, it follows that where the indebtedness of the garnishee is secured by a mortgage the garnishment. of the indebtedness carries with it the mortgage. Edwards v. Edwards, 24 Ohio St. 411." Alsdorf v. Reed, 45 Ohio St. 653."

Insolvency of the Principal Defendant.-The levy of an attachment on mesne process constitutes a valid lien, which is not to be impaired by a proceeding in insolvency, unless the insolvent or bankrupt law expressly declares such lien dissolved. Thomas v. Brown, 10 Atl. Rep. (Md.) 713.

2. No Specific Lien. Wade on Attach. 325; Bigelow v. Andress, 31 Ill. 333; McGarry v. Lewis Coal Co., 93 Mo. 237; s. c., 3 Am. St. Rep. 522; Bank of Mo. v. Bredow, 31 Mo. 523; Bailey v. Ross, 20 N. H. 302; McCampbell v. Denham, 72 Iowa 494.

"It may be less satisfactory to the plaintiff, for the reason that, instead of the specific lien, the responsibility of the garnishee is substituted." Wade on Attach. 325; Bigelow v. Andress, 31 Ill. 333.

Under the law applicable to attachment, it is the levy of the officer that creates the lien. If the plaintiff in garnishment is not satisfied to look to

of the plaintiff, except in case of fraudulent conveyance by the defendant. In such case it gives the plaintiff such a specific lien that he may contest, upon the ground of fraud, the validity of the conveyance by which the garnishee holds the property, the same as in direct seizure in attachment. To do this, it is not necessary that the plaintiff's claim shall have been conclusively established.1

The primary purpose of garnishment is to subject claims and demands in favor of the defendant against third persons to the payment of his debts, and this it accomplishes by divesting the defendant of whatever rights he may have against the garnishee at the time of service, and substituting the plaintiff in his stead.2 The latter gets by the process whatever rights the defendant had, and this is all it is intended to secure for him. From the time of service of process upon him, the garnishee becomes accountable to the plaintiff in respect to any liability due from him to the defendant, and he cannot, except in cases of liability on negotiable paper, escape from such accountability through any subsequent acts of his own or of the defendant.3 The garnishee cannot relieve himself from the obligation thus imposed upon him by payment to the defendant, or the delivery to him of property in his possession.5 Against the performance of any obligation in this regard, the garnishment affords him a complete defence as to either the defendant or those claiming through him.6 Nor can the defendant afterwards dispose of

the responsibility of the garnishee, he may apply to the court, or to the judge in vacation, and obtain an order upon the garnishee to deliver the property to the sheriff or into court, or the court may permit the garnishee to retain the property upon the execution of a bond to plaintiff with security. (This provision is given by statute.) McGarry v. Lewis Coal Co., 93 Mo. 237; s. c., 3 Am. St. Rep. 522; Bank of Mo. v. Bredow, 31 Mo. 523.

1. Rinchey v. Striler, 28 N. Y. 45; s. c., 84 Am. Dec. 324 and note.

2. Hicks v. Gleason, 20 Vt. 139, 143; Nash v. Gale, 2 Minn. 310; Rushton v. Rowe, 64 Pa. St. 63; Roig v. Tiny, 103 Pa. St. 115; Baltimore etc. R. Co. v. Gallahue's Admr., 12 Gratt. (Va.) 664; Campbell 7. Nesbitt, 7 Neb. 300; Edwards v. Edwards, 24 Ohio St. 402, 411; Secor v. Witter, 39 Ohio St. 218232; Ex parte Joselyne, L. R., 8 Ch. Div. 327; Chatterton v. Watney, L. R., 17 Ch. Div. 259.

The service of process upon a bank having on deposit funds of the defendant, effects an appropriation by operation of law of the whole fund in the hands of the garnishee to the satisfac

tion of the demand of the garnishing creditor, and the garnishee cannot discharge itself by payment thereof upon a check afterwards presented, though made and delivered by the defendant before service upon the garnishee. Kuhn v. Warren Savings Bank, 11 Atl. Rep. (Pa.) 440. Nor will the previous certification of a check thus drawn change the rule. Bills v. Nat. Park Bank, 89 N. Y. 343; Gibson v. Nat. Park Bank, 98 N. Y. 87. And see Robertson v. Huggins, 10 Lea (Tenn.) 300. 3. Martin v. Foreman, 18 Ark. 249; Cleneary v. Junction R. Co., 26 Ind. 375; First Nat. Bank v. Armstrong, 101 Ind. 244; Cottrell v. Varnum, 5 Ala. 229; s. c., 39 Am. Dec. 323; National Commercial Bank v. Miller, 77 Ala. 168, 176; White v. Bird, 20 La. Ann. 188; s. c.. 96 Am. Dec. 393; Roberts v. Lydecker, 9 Cal. 262; Bethel v. Judge of Superior Ct., 57 Mich. 379.

4. Johann v. Rufener, 32 Wis. 195; Arnold v. Linaweaver, 3 Head (Tenn.) 51; Hughes v. Monty, 24 Iowa 499.

5. Loyless v. Hodges, 44 Ga. 647; Stevens. Dillman, 86 Ill. 233.

6. Stiles v. Davis, 1 Black (U. S.) 101; Walcott v. Keith, 22 N. H. 196.

the property to the prejudice of the rights of the garnishing creditor.1 Where there are several garnishments of the same person, and against property of the same defendant, they will take precedence according to the priority of service upon the garnishee.2

But until the garnishee's liability is discharged by satisfaction of a valid judgment against him in the garnishment proceeding, the rights of the defendant to enforce his claim are suspended only, not extinguished, and for the purpose of making demand or obtaining security by attachment or otherwise, they remain unimpaired, though in subordination to the plaintiff's rights in the premises.3 Neither will the proceeding interfere with the execution of any contract previously existing between the parties, except as above indicated, nor prevent them engaging in any new transaction.5

Whether, after service of process upon one as garnishee, the property thus attached in his hands is subject to seizure under process against the defendant, and if so, what effect such seizure will have upon the rights and liabilities of the parties, the courts are not agreed. It was held, in an early case in Massachusetts, which has been followed by later decisions of the same court, that property thus situated is liable to seizure on attachment against the defendant, but that the officer into whose custody the property may come will hold the same subject to the right of the garnishee to have satisfaction, out of the proceeds thereof, for any judgment that may be rendered against him in the garnishment proceeding. In other States, it is held that, no lien being acquired by garnishment, an attachment by seizure of the prop

1. Hacker v. Stevens, 4 McLean (U.S.) 535.

2. Talbot v. Harding, 10 Mo. 350; Johann v. Rufener, 32 Wis. 195; Blaisdell v. Ladd, 14 N. H. 129; Caperton 7. McCorkle, 5 Gratt. (Va.) 177; Arledge v. White, 1 Head (Tenn.) 241; McCombs v. Howard, 18 Ohio St. 422; The Olivia A. Carrigan, 7 Fed. Rep. 507.

A creditor's right to priority will not be affected by a subsequent garnishment of the same debtor in favor of the United States. Beaston v. Farmers' Bank, 12 Pet. (U. S.) 102, 135.

Satisfaction of a prior garnishment by the garnishee, before judgment in such proceeding, will be no defence to existing attachments subsequent garnishing creditors. Brandon Iron Co. 7. Gleason, 24 Vt. 228; McCobb v. Tyler, 2 Cranch (C. C.) 199.

But where the defendant directed the garnishee to pay his debt to an attaching creditor, and he agreed to do so, 8 C. of L.-76

held that a creditor subsequently attaching, but before the money was paid over, was not entitled to any claim on the fund. Rudd v. Paine, 2 Cranch (C. C.) 9.

An attachment by seizure of the property in possession of the garnishee will be entitled to priority over a garnishments ubsequently served, though the process issued before the attachment writ. English v. King, 10 Heisk. (Tenn.) 666; Pritchard v. Toole, 53 Mo. 356.

3. Hicks v. Gleason, 20 Vt. 139; Smith v. Clinton Bridge Co., 13 Ill. App. 572, 580.

4. Baugh v. Kirkpatrick, 54 Pa. St. 84; Aldrich v. Woodcock, 10 N. H. 99, 102; Crownover v. Bamburg, 2 Ill. App. 162.

5. Victor 7'. Hartford Co., 33 Iowa 210, 212.

Fire Ins.

6. Burlingame v. Bell, 16 Mass. 318; Swett v. Brown, 5 Pick. (Mass.) 178; Platt v. Brown, 16 Pick. (Mass.) 553. 1201

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