time of service of the process. And garnishment, being a proceeding at law, only legal debts, as distinguished from claims of an equitable nature, are in general available for such defence.1 Where it is sought to charge the garnishee in respect to goods in his custody, as the property of the defendant, whether he will be entitled to set off claims of his own is dependent upon the existence of a lien thereon in his favor, or some right, as against the owner by contract, by custom or otherwise, to hold the goods, or to retain the possession of them, in security of some debt or claim.2 If it appears by his answer that the garnishee has a 275; Roig v. Tim, 103 Pa. St. 115. A note not due at the time of service of garnishment cannot be set off against the garnishee's liability to the defendant, though the same become due before answer. Edwards v. Temple, 2 Harr. (Del.) 322. Claims of third persons against the defendant which the garnishee had agreed to pay, before service upon him, in part consideration of a lease, may be set off against a liability for rent under such lease, although not paid until after service of the garnishment. Rowell v. Felker, 54 Vt. 526. Liability as Surety or Endorser.-A mere contract of suretyship cannot be made a matter of set off. To entitle a surety to set off his liability as such he must, before service, have made the defendant his debtor by payment of the liability before service of process. He is not entitled to such set off where at the time of service his liability is contingent and uncertain in amount, although the note fall due and be paid by the garnishee before answer. Yongue v. Linton, 6 Rich. L. (S. Car.) 275; Ingalls v. Dennett, 6 Me. 79; Roig v. Tim, 103 Pa. St. 115. Such rule is not changed by reason of judgment having been rendered against the garnishee on account of his suretyship before service of garnishment. Field v. Watkins, 5 Ark. 672. Nor by the payment of such judgment after service of garnishment. Watkins v. Field, 6 Ark. 391. A garnishee is not entitled to set off his liability as accommodation endorser for the defendant on a promissory note not due at the time of the service of the process, although the note fall due and be paid by the garnishee before answer. Martin v. Solomons, 10 Rich. L. (S. Car.) 533. And where the note had fallen due and was protested for non-payment beS C. of L.-77 fore answer, held that the garnishee could not avail himself of such liability by way of set off except by payment thereof before garnishment. Taylor v. Gardner, 2 Wash. (U. S.) 488. But where a fund has been assigned, or property delivered to the surety as security for his liability under contract of suretyship, he will be entitled to a lien upon such fund, or property, to the extent of such liability, even though it be contingent at the time of the service of process whether he will be required to pay the same or not. St. Louis v. Regenfuss, 28 Wis. 144; Strong v. Mitchell, 19 Vt. 644; Stedman v. Vickery, 42 Me. 132; Dryden v. Adams, 29 Iowa 195; Cox v. Russell, 44 Iowa 556. Under the rule in Massachusetts a liability by contract before service, which afterwards becomes fixed by an actual payment by necessity before answer, may be set off by the garnishee; but not if at the time of answer it is contingent whether the liability will ever be enforced. So held where the garnishee, having endorsed a note for the defendant before service of garnish-、 ment, was subsequently compelled to pay the same before answer in consequence of the defendant's failing to pay it. Boston Type etc. Co. v. Mortimer, 7 Pick. (Mass.) 168. 1. Loflin v. Shackelford, 17 Ala. 455; Self v. Kirkland, 24 Ala. 275; Weller v. Weller, 18 Vt. 55; Edson v. Sprout, 33 Vt. 77. で。 2. Set off of Claims Against Property in Garnishee's Possession.—Allen Hall, 5 Met. (Mass.) 263; Curtis v. Norris, 8 Pick. (Mass.) 280. Where one who had formerly been a copartner of the defendant was summoned as garnishee in respect to partnership property in his possession, held that the plaintiffs were not entitled to judgment for one-half of such property or the value thereof, but only for 1217 mere naked possession of the goods, without any special property or lien, so that the defendant might lawfully take them out of his custody, then they will stand charged in his hands, and he has no greater right to charge them with a debt of his own by way of set-off, than he would have had if the goods had been taken into actual custody by the officer at the time of the attachment.1 b. Proceedings in Principal Casc.-To render a judgment against one as garnishee a sufficient protection to him against a subsequent liability for the same debt, there must, first of all, be a valid judgment against the defendant.2 The garnishee is bound, therefore, if the defendant has not appeared, to enquire into the validity of the proceedings in the principal case, so far as they pertain to the jurisdiction of the court to render judg ment therein.3 The invalidity, however, must appear upon the face of the record; at least if the court be one of general juris such sum as defendant might be entitled to after an accounting between the partners. Cox v. Russell, 44 Iowa 556. A factor who has made advances to his consignor on goods sent to him to sell has a lien upon the goods in his hands for the sum so advanced and for commissions due him, and is entitled to set off the same against a garnishment in favor of the creditor of the consignor. Baugh v. Kirkpatrick, 54 Pa. St. 84; Ronan v. Dewes, 17 Mo. App. 306309. 1. Caldwell v. Stewart, 30 Iowa 379. A mere creditor who happens to have in his hands specific articles of property belonging to his debtor has no lien upon them by virtue of such indebtedness, and if he would avail himself of them to secure his own debt, he must attach them like any other creditor. Brewer v. Pilkin, 11 Pick. (Mass.) 298. By statute in South Carolina, in garnishment proceedings against an absent debtor, the garnishee is given a lien upon all property in his custody for the payment of its owing by the defendant. Mitchell v. Byrne, 6 Rich. L. (S. Car.) 171. Under the rule that an attorney has a lien for his professional services upon all moneys in his possession belonging to his client he will be entitled to retain out of funds in his hands an amount due him under a written obligation of such client to pay him for professional services in a suit pending, where a part of the services had been performed in good faith and he stands ready to perform the balance. Randolph v. Randolph, 34 Tex. 181. 2. Valid Judgment Against Defendant Necessary. - Whitehead v. Henderson, 4 S. & M. (Miss.) 704; Kellogg v. Freeman, 50 Miss. 127; Pierce v. Carleton, 12 Ill. 358; s. c., 54 Am. Dec. 405; Harmon, Exr. v. Birchard, 8 Blackf (Ind.) 418; Matheny v. Earl, 75 Ind. 531; Newman v. Manning, 89 Ind. 442; Barton v. Smith, 7 Iowa 85; Bean v. Barney, 10 Iowa 498; Tell v. Knight, 15 Iowa 370; Washburn v. New York etc. Co., 41 Vt. 50. Garnishment proceedings are ancillary to the principal case and if the judgment therein is invalid they will go down with it. Iron Cliffs Co. v. Lahais, 52 Mich. 394; Withington v. Southworth, 26 Mich. 381. If the want of jurisdiction does not appear of record at the time of answer by the garnishee, he may raise the objection in an amendment to his answer or when summoned on scire facias. Thayer v. Tyler, 10 Gray (Mass.) 164; Pratt v. Cunliff, 9 Allen (Mass.) 90. 3. Garnishee Must Enquire as to Jurisdiction.-Whitehead v. Henderson, 4 S. & M. (Miss.) 704; Matheny v. Galloway, 12 S. & M. (Miss.) 475; Kellogg v. Freeman, 50 Miss. 127; Pierce v. Carleton, 12 Ill. 358; s. c., 54 Am. Dec. 405; Empire Car Roofing Co. v. Macey, 115 Ill. 390; Schoppenhast v. Bollman, 21 Ind. 280. Where jurisdiction of the defendant is based upon the attachment of property, the garnishee may show that the attachment is invalid. Flash v. Paul, 29 Ala. 141. Garnishee may show that judgment on which garnishment under execution is based was rendered by default before diction. And this obligation to defend does not extend to mere errors and irregularities in the proceedings for which the judg ment against the defendant might be reversed on error.2 The jurisdiction of the court being established, any judgment it may render will sufficiently protect the garnishee, notwithstanding such errors, and his protection against a subsequent liability being the only ground for permitting his interference in such proceedings, he has no cause to complain that the judgment which is made the basis for charging him could be avoided by the defendant on appeal. And if "the defendant is personally before the court, the garnishee is not interested in the jurisdiction or legality of the proceedings, or in their practical regularity as against the defendant, and cannot be heard to complain." 4 c. Pendency of Other Proceedings.-Where there are several garnishments in respect to the same fund in the hands of the garnishee, the rights of the several creditors are to be determined by the priority of their respective attachments. In such case expiration of time for appearance of defendant, and therefore void. France v. Evans, 90 Mo. 74. 1. Sadler v. Prairie Lodge, 59 Miss. 572. 2. But Cannot Object to Mere Errors.— Lomerson v. Hoffman, 4 Zab. (N. J.) 674; Whitehead v. Henderson, 4 Smed. & M. (Miss.) 704; Atcheson v. Smith, 3 B. Mon. (Ky.) 502; St. Louis & C. Ins. Co. v. Cohen, 9 Mo. 416, 441; Pierce v. Carleton, 12 Ill. 358; s. c., 54 Am. Dec. 405; Empire Car Roofing Co. v. Macey, 115 Ill. 390; Houston v. Walcott, 1 Iowa 86; Henny Buggy Co. v. Patt, 73 Iowa 485; Schoffenhast v. Bollman, 21 Ind. 280, 285; Flash v. Paul, 29 Ala. 141; Gunn v. Howell, 35 Ala. 144; Reynolds . Collins, 78 Ala. 94; Douglass v. Neil, 37 Tex. 528; Coil v. Haven, 30 Conn. 190. In an action against a non-resident copartnership, commenced by attachment and garnishment, the fact that the individual names of the partners composing the firm do not appear in the proceedings, cannot be taken advantage of by the garnishee. Hollingsworth v. Hammond, 30 Ala. 668. A return of service of summons in the original case, which is so defective that on appeal it would warrant a reversal of the judgment, will not avail the garnishee as a defence. Security Loan Assn. v. Weems, 69 Ala. 584; Schneitman v. Noble, 75 Iowa 120. Defects in the attachment bond and writ, not affecting the jurisdiction of the garnishment proceeding, are not subject to objection by the garnishee. Camberford v. Hall, 3 McCord (S.Car.) 345; Linden v. Arnold, 4 Strobh. (S. Car.) 290. 3. Lomerson v. Hoffman, 4 Zab. (N. J.) 674; Atcheson v. Smith, 3 B. Mon. (Ky.) 502; Pierce v. Carleton, 12 Ill. 358; s. c., 54 Am. Dec. 405; Houston v. Walcott, 1 Iowa 86; Camberford v. Hall, 3 McCord (S. Car.) 345; Schoppenhast v. Bollman, 21 Ind. 280, 285. A garnishee in attachment is not bound to superintend a defence for the defendant, and is not answerable for such defects and irregularities in the proceedings as relate only to the mutual rights of the original parties. Harmon v. Birchard, 8 Blackf. (Ind.) 418; Pounds v. Hammer, 57 Ala. 342; Kimball v. Plant, 14 La. 511. 4. Drake on Attach. (6th ed.), § 693; Washburn v. New York etc. Co., 41 Vt. 50. Objections to the attachment bond, or to the non-residence of the defendant as ground for attachment, or to amendment of the affidavit for attachment, by the correction of a misnomer of the defendant, cannot be raised by the garnishee after the appearance_of the defendant. Baltimore etc. R. Co.. v. Taylor, 81 Ind. 24. 5. Eastman v. Newman, 59 N. H. 581, 582; Farmers' Bank v. Beaston, 7 Gill & J. (Md.) 421; s. c., 28 Am. Dec. 226; Talbot . Harding, 10 Mo. 350; McCabb . Tyler, 2 Cranch (C. C.) 199; Wilder v. Weatherhead, 32 Vt. 765; Prentiss v. Danaher, 20 Wis. 311, 318. But in Georgia, under a statute of it becomes necessary to the protection of the garnishee that he disclose in his answer the pendency of the prior attachment, or make special plea for a stay of proceedings on the subsequent garnishment, for if he suffer judgment to go against him in the junior proceeding, he cannot plead the same in bar of a prior garnishment. The law requires him in such case to exhaust all legal means to avoid judgment against him on the subsequent garnishment, and to preserve the fund in his hands for the prior lien, and if judgment is erroneously rendered against him, it is his duty to appeal therefrom.2 But it is not necessary that a disclosure be made of subsequent garnishments. If, in a prior proceeding, the garnishee has been charged for the full amount. of the debt or property of the defendant in his hands, he should disclose such fact and secure his discharge.3 But if he makes payment to a prior garnishing creditor before he has perfected his lien by judgment against the garnishee, it will not avail as a defence to subsequent garnishments. The pendency of garnishment proceedings constitutes a good ground for the abatement or at least the discontinuance of a subsequent action by the creditor in respect to the same debt or property. And contrary to the that state, the creditor first obtaining judgment against the garnishee is entitled to priority. Hall v. Daniel, 62 Ga. 620. Two actions brought by different plaintiffs against the same defendant, and in which the same person was summoned as garnishee, were pending in court. In the second action no service was made upon the defendant, and he did not appear. The first action was left off the docket for non-payment of the clerk's fees, and the trustee in that action was subsequently discharged as of a previous term, without notice to the plaintiff. The first action was subsequently restored to the docket, and the order discharging the garnishee vacated. Held, that the pendency of the second action did not show such an intervening right as to prevent the garnishee being charged. Mortland v. Little, 137 Mass. 339. 1. Garnishee Must Disclose Senior Garnishments.-Farmers' Bank v. Beaston, 7 Gill & J. (Md.) 421; s. c., 28 Am. Dec. 226; Prentiss v. Danaher, 20 Wis. 311, 318; Royer v. Fleming, 58 Mo. 438. 2. Johann v. Rufener, 32 Wis. 195. It was formerly held that if the property in the hands of the garnishee were subsequent to the service of process upon him, taken out of his hands by an officer under a junior writ of attachment, such fact would constitute no defence to the garnishee, it being his duty to keep possession of them. Parker v. Kinsman, 8 Mass. 486; Dispatch Lines etc. v. Bellany Mfg. Co., 12 N. H. 205, 338. But more recent authorities hold that the subsequent seizure of property in the garnishee's hands under a junior writ of attachment, will constitute a good defence. Ronan v. Dewes, 17 Mo. App. 306, 309. But if the garnishee would avoid liability on this account, he must make a full disclosure of all the facts in his answer. Ronan v. Dewes, 17 Mo. App. 306, 309. 3. Bullard v. Hicks, 17 Vt. 198. But if the garnishee fails to disclose in his answer a liability or payment under a prior garnishment, and goes to trial under a general denial of indebtedness, he will not be permitted to prove such fact upon the trial. Royer v. Fleming, 58 Mo. 438. If the garnishee fails to make disclosure of such fact in his answer, he is guilty of laches, and the court may refuse to modify an order previously made, requiring the garnishee to pay the whole amount of the judgment debt, notwithstanding proof that the debtor has been so charged. Everdell v. Sheboygan etc. R. Co., 41 Wis. 395. 4. Wilder v. Weatherhead, 32 Vt. 5. Garnishment as a Defence to Ac 765. ordinary rule that lis pendens in a foreign court cannot be pleaded, such defence will be good in a suit against the garnishee in a State other than that where the garnishment proceeding is pending. And if the debtor has been compelled to pay a judgment against him as garnishee, such judgment will constitute a bar to any subsequent action on the same debt, either in the same 2 or in a foreign jurisdiction.3 And, generally, garnishment may be pleaded in abatement of a prior action by the garnishee's creditor in another court, if in the same jurisdiction and regulated by the tion by Garnishee's Creditor.-Embree v. Hanna, 5 Johns. (N. Y.) 101; Crawford v. Clute, 7 Ala. 157; s. C., 41 Am. Dec. 92; Mars v. Virginia Home Ins. Co., i7 S. Car. 514. The pendency of garnishment proceedings, either in the same or in a foreign jurisdiction, whether before or after judgment therein, if the same has not been paid by the garnishee, is pleadable in abatement only, and cannot be set up in bar of the action or any part thereof. Irvine v. Lumbermen's Bank, 2 W. & S. (Pa.) 190, 209; Fitzsimmon's Appeal, 4 Pa. St. 248; Near v. Mitchell, 23 Mich. 382. In Pennsylvania, under more recent statutes, such plea is receivable only for the purpose of setting the facts upon the record, and thus enable the court to so frame the judgment as to protect the rights of the parties, and does not have the effect to abate the action. Kase 7. Kase, 34 Pa. St. 128; Brown v. Scott, 51 Pa. St. 357. A judgment in favor of a defendant in a suit by his creditor, commenced subsequent to service of garnishment upon him, is not conclusive upon the plaintiff in the garnishment proceeding. Webster v. Adams, 58 Me. 317. Where debtors of an insolvent have been sued by their creditor's assignee after being garnished, they should ask leave to file a supplemental disclosure setting up the alleged assignment. And they should notify the plaintiffs in the garnishment proceeding to defend the suit brought by the assignee. Butler v. Wendell, 57 Mich. 62. Or the debtor may plead the prior garnishment in abatement of the action by the assignee. Clise v. Freeborne, 27 Iowa 280. Y.) 101, an action was commenced in Maryland, and the garnishee there, being subsequently arrested in New York by his creditor, the defendant to the suit in New York was allowed to plead in defence the garnishment pending in Maryland. CHIEF JUSTICE KENT said: "The attachment of the debt in the hands of the defendant fixed it there in favor of the attaching creditors; the defendant could not afterwards lawfully pay it over to the plaintiff. The attaching creditors acquired a lien upon the debt binding upon the defendant, and which the courts of all other governments, if they recognize such proceedings at all, cannot fail to regard. If we were to disallow a plea in abatement of the pending attachment, the defendant would be left without protection, and be obliged to pay the money twice; for we may reasonably presume that if the priority of the attachment in Maryland be ascertained, the courts in that state would not suffer that proceeding to be defeated by the subsequent act of the defendant going abroad and subjecting himself to a suit and recovery here. The present case affords a fair opportunity for the settlement and application of a general rule on the subject." 2. Updegraff v. Spring, 11 S. & R. (Pa.) 188; Wallace . McConnell, 13 Pet. (U. S.) 136, 151. 3. Embree v. Hanna, 5 Johns. (N. Y.) 101; Wheeler v. Raymond, 8 Cow. (N. Y.) 311; Irvine v. Lumbermen's Bank, 2 W. & S. (Pa.) 190, 208. A judgment against one as garnishee in a state court in favor of a private creditor of a corporation, will constitute a bar to subsequent proceedings of the same character in a federal court in favor of the United States. Beaston v. Farmers' Bank, 12 Pet. (U.S.) 102, 135; Prentiss v. Danaher, 20 Wis. 311, 318. As to when garnishment may be pleaded in abatement or bar of an action In Embree v. Hanna, 5 Johns. (N. in a foreign jurisdiction, see note to 1. Irvine v. Lumbermen's Bank, 2 W. & S. (Pa.) 190, 208; American Bank v. Rollins, 99 Mass. 313, 314; Roche v. Rhode Island Ins. Assn., 2 Ill. App. 360. |