erty in the garnishee's hands will be effectual against any rights acquired by the garnishing creditor. But the trouble with this last position would seem to be that, while garnishment gives no lien upon specific property, it nevertheless deprives the defendant of all control over it, and the power to assert any right or title thereto as against the plaintiff, from the time of service. upon the garnishee, and an attaching creditor who seizes the property while thus situated, if it be subject to seizure at all, can certainly take no greater interest thereby, than his debtor had at the time of the levy.2 It has accordingly been held that such an interference with the garnishee's possession is wrongful, and that no lien will be acquired thereby, nor the right of the garnishing creditor be defeated.3

X. PROCEEDINGS ΤΟ DETERMINE GARNISHEE'S LIABILITY—1. Plaintiff's Right to Oral Examination of Garnishee.-Generally, the garnishing creditor is entitled to personally examine the gar

1. Johnson v. Gorham, 6 Cal. 195. 2. Stephenson v. Walden, 24 Iowa S4; Manny v. Adams, 34 Iowa 165; Samuel v. Agnew, 80 Ill. 553.

In Erskine v. Staley, 12 Leigh (Va.) 406, 424, the court say: "It was contended, that as there was no actual seizure, no levy on specific effects which were thus placed under the custody of the law, the property in the goods remained in the debtor, and being in him other creditors might levy on them. But granting that no actual seizure is made so as to divert the property of the debtor, the consequence deduced does not follow. The legal property of goods may remain in one, subject to the equitable lien of another; and third persons coming in under the first, must occupy his position and hold subject to the lien. For many purposes the property in the goods may rest in the debtor, notwithstanding the service of the attachment. Thus, in several attachments against the same absconding debtor, the attachments are levied successively on the same goods as his property, and they are paid according to the dates of their respective levies."

3. Erskine v. Staley, 12 Leigh (Va.) 406; Moore v. Holt, 10 Gratt. (Va.) 284; Ronan v. Dewes, 17 Mo. App. 306, 310.

The same position, though based upon different grounds, is taken in the following cases: Scholefield v. Bradlee, 4 Martin (La.) 252; Dennistown v. New York Croton & Steam Faucet Co., 6 La. Ann. 782; Renneker v. Glover, 10 Rich. Eq. (S. Car.) 289; Reed

V.

Fletcher, 24 Neb. 435; Northfield Knife Co. v. Shapleigh, 24 Neb. 635. And see Brashear v. West, 7 Pet. (U. S.) 608, 621; Mattingly v. Boyd, 20 How. (U. S.) 128; Arnold v. Linaweaver, 3 Head (Tenn.) 51; Beaumont v. Eason, 12 Heisk. (Tenn.) 417, 420.

If the property be taken out of the possession of the garnishee under junior process against the defendant, it is his duty to disclose such fact in his answer, or give notice to the plaintiff, that the latter may take the necessary steps to protect his rights; and if he fails to do this he may be charged, notwithstanding such seizure. Ronan v. Dewes, 17 Mo. App. 306. And some authorities hold that if the garnishee permits the property to be taken from his possession he will nevertheless be chargeable therefor. Aldrich . Woodcock, 10 N. H. 99, 103; Despatch Line etc. v. Bellamy Mfg. Co., 12 N. H. 235. 238; s. c., 37 Am. Dec. 203. But other authorities hold that such seizure, without fault on the part of the garnishee, will entitle the latter to be discharged, and that the plaintiff's remedy against the party committing the trespass. Goddard v. Hapgood, 25 Vt. 272; s. c., 60 Am. Dec. 272.

is

If the garnishing creditor subsequently seizes the property in the garnishee's hands on attachment, it will operate as a discharge of the garnishee; and if the property has been previously attached, such attachment will have priority over the lien of the garnishing creditor. Goddard v. Hapgood, 25 Vt. 351; s. c., 60 Am. Dec. 272; Clapp v. Rogers, 38 N. H. 435.

nishee, and he cannot be deprived of this right by the filing of a written answer. Even where the answer is made in writing by agreement of parties, or in pursuance of the statute, if the disclosure is meagre, and its statements evasive, or otherwise unsatisfactory to the plaintiff, he should be allowed to examine the garnishee orally.3 It follows that the garnishee must generally appear before the court in person for the purpose of the examination. Unless authorized by statute, he cannot, usually, make answer by an attorney, or any other agent.5 But where a copartnership is summoned by its firm name, one of the partners may answer for the firm. So, too, may one of several garnishees summoned upon the ground of a joint liability. And a corporation must answer through its officers or other agents, according as authority has been conferred upon them.8

2. The Interrogatories.-Just what scope the examination of the garnishee may be allowed to take, varies somewhat in the different States, but it'rests largely in the discretion of the court, in view of the provisions of the statute under which the proceeding obtains, and the circumstances of the particular case. In order that the remedy given by the statute may be made effectual, the plaintiff ought not to be too much restrained in the exercise of his rights thereunder.2 Such a disclosure should be obtained as will enable the court to determine, if possible, the question of liability without putting the parties to the expense and delay of a trial upon an issue joined.3

The garnishee is, in some respects, a witness, and the rule is that a witness in a civil case may generally be required to testify to any fact pertinent to the issue. He cannot be excused from answering because his testimony may tend to charge him with a debt, or subject him to a pecuniary loss or liability. But, as in

with the process.
Duke v. Rhode
Island Locomotive Works, 11 R. I. 599.
And if the issue be taken on the
answer so made, the plaintiff may sum-
mon any officer or agent of the com-
pany and examine him as a witness.
Bailey v. Union Pacific R. Co., 62 Iowa
354, 358; Warren v. Perkins, 8 Cush.
(Mass.) 518.

1. Scope of the Examination.-In New York the garnishee may be enquired of as to the character in which he holds money or property of the defendant, the manner in which the same was obtained, and the purpose of his possession, but the examination cannot be extended beyond this. Baxter v. Mis

souri etc. R. Co., 67 Barb. (N. Y.) 283.

In Neally v. Ambrose, 21 Pick. (Mass.) 185, it is said that the court should interpose in behalf of the garnishee only where the interrogatories are plainly immaterial, or have a tendency to change him criminally.

2. Pickler v. Rainey, 4 Heisk. (Tenn.) 335, 340; Devries v. Buchanan, 10 Md.

210.

Justice may often require that the garnishee should be submitted to the most pointed and searching interrogatories. But the interrogatories must not go beyond the design of the statute, viz: to charge the garnishee with property or effects of the judgment debtor, or with some indebtedness to him. When they tend to some other purpose, the garnishee should be relieved from answering. Roquest v. Steamer B. E. Clark, 13 La. Ann. 210, 212.

The policy of the law in relation to this process is to render the effects and

credits of the defendant in the hands of the garnishee available for the benefit of creditors; and the statutes should receive a liberal construction in furtherance of this object. Mansfield v. New England Exp. Co., 58 Me. 35, 38.

It has been held in Massachusetts and some other States that by summoning the garnishee, the plaintiff in some respects makes him his witness, and that he is bound by his statements under oath, and can neither impeach his character nor contradict his testimony, and therefore is not entitled to the privilege of a cross-examination. But this is contrary to the rule which prevails in most of the states. Crossman v. Crossman, 21 Pick. (Mass.) 21; Nutter v. Framingham, etc., R. Co., 131 Mass. 231; Spears v. Chapman, 43 Mich. 541; Banning v. Sibley, 3 Minn. 389; Cole v. Sater, Minn. 468.

But under more recent statutes in Minnesota, other testimony than that of the garnishee may be introduced as to facts tending to corroborate or explain the testimony of the garnishee. Leighton v. Heagerty, 21 Minn. 42.

3. Richardson v. White, 19 Ark. 242. 4. Bull v. Loveland, 10 Pick. (Mass.) 9; Maynard v. Cornwell, 3 Mich. 309.

5. Interrogatories Garnishee May be Required to Answer.-Bull v. Loveland, 10 Pick. (Mass.) 9.

That the questions tend to the discovery of fraud on his part will not ex

cuse

the garnishee from answering. Devoll v. Brownell, 5 Pick. (Mass.) 448; Neally v. Ambrose, 21 Pick. (Mass.) 185; St. Louis Brokerage Co. v. Cronin, 14 Mo. App. 586.

the case of ordinary witnesses, the above rule is subject to certain exceptions, as where his testimony would expose the garnishee to a criminal prosecution, or subject him to penalty or forfeiture, or when the facts sought to be elicited are within the rule affecting privileged communications. But such rule will not be so construed as to exempt or shield property of the defendant in the hands of his attorney from the pursuit of creditors. And a statute providing that "neither the husband nor wife shall in any case be a witness against the other," will not excuse the husband or wife, when summoned as garnishee, from answering as to his or her indebtedness to the other.3

The general rule, therefore, is to permit the plaintiff to put such interrogatories to the garnishee as are calculated to elicit facts tending to charge him.4 This implies that they must concern the estate and effects of the defendant in the garnishee's hands, or debts due from him to the defendant 5 at the time of the service of garnishment. With subsequent and independ

Nor is it a valid objection to a proper interrogatory that it requires the garnishee to make a statement of his accounts with the defendant. Roquest v. Steamer B. E. Clark, 13 La. Ann. 210.

1. Boardman v. Roe, 13 Mass. 104; Neally v. Ambrose, 21 Pick. (Mass.) 185.

2. Privileged Communications.-An attorney at law cannot be excused from answering interrogatories put to him unless he declare upon oath that he cannot answer the same without disclosing matters confided to him by his client, or advice given by him to his client concerning business about which he was retained. White v. Bird, 20 La. Ann. 188.

Where the object of interrogatories addressed to an attorney is to ascertain who is the client who entrusted notes to him, through whose agency or in what manner he was retained; when that relation commenced and ended, and what money has been received, and what paid over, and to whom paid, none of the matters called for are within the rule of privileged communications. Shanghuessy v. Fogg, 15 La. An.

3. Thompson v. Silvers, 59 Iowa 670.

4. Crossman v. Crossman, 21 Pick. (Mass.) 21; Nutter v. Framingham etc. R. Co., 131 Mass. 231.

5. Directed to Garnishee's Liability at Time of Service.-Corbyn v. Bollman, 4 W. & S. (Pa.) 342; Callender v. Furbish, 46 Me. 226.

In Michigan the examination is limited to the character of the liability of the garnishee alleged in the affidavit for issuance of the process. Mack v. Brown, 20 Mich. 335.

Under a statute providing that the garnishee shall be summoned to "answer touching his indebtedness to the defendant and any property, money or effects of the defendant in his possession or under his control," the garnishee may be questioned as to his liability in both respects, although the affidavit may only state one ground as the basis for issuing the summons. Prince v. Hendy, 5 Minn. 341, 351.

6. Generally, the garnishee can only be examined touching his liability at the time of the service of the garnishment. Norris v. Burgoyne, 4 Cal. 409.

Under the statute of Illinois, which requires the garnishee to disclose as to his indebtedness or possession of property of the defendant "at the time of the service of the garnishee process, or at any time thereafter, or which may thereafter become due," held that the garnishee is required to make full discovery in reference to any indebtedness to the defendant or property or effects in his hands up to the time of making

υ.

ent transactions the plaintiff has nothing to do; nor with the garnishee's title to real estate,2 except as he may be liable to account as trustee for the rents and profits thereof, or for the proceeds if the same shall be sold.3 Neither should a garnishee be required to disclose in respect to his liability in any capacity or relation other than that in which he has been served.4 If the enquiry be to communications received by the garnishee from third persons, or to conveyances to which he was not a party, he should not be required to answer unless he has personal knowledge of the truth of the matters enquired of.5 In some of the States, the statute permits an examination of the garnishee in respect to his knowledge of the indebtedness of other persons to the defendant; but his answer in such case will, of course, bind no one but himself.6

3. The Answer-a. Must be Under Oath.-The invariable rule is that the garnishee shall answer under oath. But this requirement is for the benefit of the attaching creditor,8 and a corporation, when summoned, cannot excuse itself from answering because it cannot be sworn. In such case, if the manner of making answer is not prescribed by statute, the garnishee may be required to answer in writing, under its corporate seal,9 or sworn

answer, and is not limited in that regard to the date of the service of the writ. Young v. First Nat. Bank, 51 Ill. 73.

was

And in Mississippi, under a statute providing that the garnishee may be cited to answer "what he is indebted or indebted to the defendant" at the time of service of the summons, held that plaintiff was entitled to a disclosure as to any liability accruing between the date of service and the return day. Columbus Ins. & Bank Co. v. Hirsh, 61 Miss. 74.

1. The garnishee may decline to answer where the examination is directed to matters in no way connected with any business or liability which existed between him and the defendant when the process was served. Humphrey v. Warren, 45 Me. 216; Wood v. Wall, 24 Wis. 647

2. As only the personal effects and credits of the defendant can generally be attached in the hands of the garnishee, he is under no obligation to answer interrogatories looking to the disparagement of his title to real estate. Boardman V. Roe, 13 Mass. 104; Moor v. Towle, 38 Me. 133; Battles v. Simmons, 21 La. An. 416.

But in New Hampshire, held that the garnishee is obliged to answer, although in so doing he furnish evidence that may go to impair or impeach his title

to real estate. Bell v. Kendrick, 8 N. II. 520.

3. Russell v. Lewis, 15 Mass. 122; Hazen v. Emerson, 9 Pick. (Mass.) 144; Webb v. Peele, 7 Pick. (Mass.) 247.

4. Knapp v. Levanway, 27 Vt. 298; Frizzell v. Willard, 37 Ark. 478.

5. Stackpole v. Newman, 4 Mass. 85; Hawes v. Langton, 8 Pick. (Mass.) 67.

6. Bean v. Barney, 10 Iowa 498; Cordes v. Kaufman, 29 Tex. 180.

7. Answer Must be Under Oath.— Cordes v. Kaufman, 29 Tex. 179; Roberts v. Landecker, 9 Cal. 262, 266; Oliver v. Chicago etc. P. R. Co., 17 Ill. 587; Chicago etc. R. Co. v. Mason, II Ill. App. 525, 527; Cornell v. Payne, 115 Ill. 62, 68; Lewis v. Prenatt, 24 Ind. 98; 100; Porter v. Stevens, 9 Cush. (Mass.) 530, 536; Seamon v. Bank, 4 W. Va. 339, 341; Pickler v. Rainey, 4 Heisk. (Tenn.) 335, 339.

Where the officer is authorized to take the answer of the garnishee at the time of service of the summons, the oath may be administered by him. Conable v. Hylton, 10 Iowa 593.

8. Roberts v. Landecker, 9 Cal. 262,

266.

9. Corporations-Answer Under Corporate Seal.-In Virginia, where such