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 A treatise on the law of garnishment, emb 
 
 3 1924 020 198 481 
 
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The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/cletails/cu31924020198481 
 
A TREATISE 
 
 ON THE 
 
 LAW OF GARNISHMENT 
 
 Embracing Substantive Principles, Procedure and Practice, and 
 Garnishment as a Defense; also Conflict of Laws, and 
 Foreign and Domestic Exemption Statutes 
 as Affecting or Affected by Garnish- 
 ment Proceedings 
 
 ADAPTED TO GENERAL USE 
 
 JOHN R. ROOD 
 
 Counselor at Law 
 
 St. Paul, Minn, 
 
 WEST PUBLISHING CO. 
 
 1896 
 
Copyright, 1896, 
 
 BT 
 
 JOHN R. ROOD. 
 
PREFACE. 
 
 Garnishment is the most modern, and at the same 
 time the cheapest and most effectual, remedy linown 
 to the law. While it is more especially the small 
 creditor's remedy, it is none the less adapted to use in 
 more important cases, and our court reports abound 
 with cases in which judgments for many thousands of 
 dollars have been collected by this means. For one 
 payment that is enforced by execution, attachment, or . 
 bill in chancery, twenty are collected by garnishment. 
 Nevertheless, there is no published text book on the 
 subject, unless we recognize the local works on trustee 
 process; and it is only within very recent years that 
 compilers of digests have collected any decisions un- 
 der this head. 
 
 It would be quite as logical to treat of executions in 
 a work on attachment, or of attachment in a work on 
 executions, as to treat of garnishment with either; for 
 each is equally independent of the others. However, 
 Mr. Freeman, in his work on Executions, and Judge 
 Drake and others, in their works on Attachment, have 
 devoted considerable space to a consideration of parts 
 of the law of this subject, and to them the practicing 
 lawyer is indebted for all the law of garnishment he 
 has heretofore been able to learn from text writers. 
 Fully half the adjudicated law of garnishment has 
 never been touched upon by any text writer. In this 
 
 LAW GAENISH, (ui) 
 
iv LAW OF GARNISHMENT. 
 
 State of affairs, the lawyer who has had occasion to 
 brief a garnishment case has been fortunate if the 
 decisions bearing upon his case happened to be of 
 those reviewed by any of these writers. Otherwise 
 he had to rummage around through the digests, and 
 find the decisions if he could. This seems to me to 
 afford ample apology for the appearance of this trea- 
 tise. 
 
 When a point of law arises in a case in hand, we 
 want the authorities upon it. We want them all.. 
 We want them quick. The text writer who best sup- 
 plies these demands most pleases us. The day of the- 
 commentator is past. This is the age of precedents. 
 We have no time to read the fine-spun theories of the- 
 text writer who takes us on an observation excursion 
 all over his subject in a balloon. These facts have 
 been constantly in mind in the preparation of the 
 present work, and it has been the one aim and effort tO' 
 make a book of ready reference in which all the deci- 
 sions upon any point of garnishment law and their 
 bearings upon each other may be discovered with the 
 least possible expenditure of time. I have usually 
 refrained from expressing any opinion of my own, and 
 some of the propositions of law announced, though 
 supported by the decisions cited in support of them, 
 might be very differently stated if I were writing the 
 law. It is not sought herein to lay down the law, but 
 merely to furnish a key to it which shall in a trice 
 open to the searcher the authorities upon any branch 
 of the subject which may interest him. To further 
 this purpose, all devices of ready reference known to 
 the author have been diligently employed. The work 
 is furnished with a topical and an analytical index. 
 
PREFACE. V 
 
 Bold-face headings and cross references have been 
 liberally employed, and I have especially striven to ar- 
 range the matter logically, with a place for everything 
 and everything in its place. I have given the subject 
 my best efforts, and trust it will meet the approval of 
 the profession and serve the purpose for which it was 
 designed. 
 
 JOHN It. ROOD. 
 Dated at Marquette, Mich., March 20, 189t>. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 GENERAL NATURE OP THE GARNISHMENT REMEDY- 
 SCOPE AND STATUTORY CONSTRUCTION. 
 
 % 1. General Nature. 
 
 2. Ancillary to the Principal Suit. 
 
 3. An Action against tbe Uarnisljee. 
 
 4. A Proceeding at Law. 
 
 5. Substantially a Proceeding in Kern, 
 (i. A Statutory Remedy. 
 
 7. General Object. 
 
 8. General Statutory Construction— Whether r..iberal or Strict Con- 
 
 struction. 
 
 9. Tlie Intended Kemodj- must be Preserved. 
 
 10. Statutes cannot be Extended, nor Remedy Used Vexatiously. 
 
 11. Statutes Affect the Remedy, and not the Right. 
 
 12. Who may Employ Garnishment Process. 
 
 13. In What Cases Garnishment may Issue. 
 
 CHAPTER II. 
 
 WHO MAY BE MADE A GARNISH HE. 
 
 §14. Grounds of Exemption— Practice. 
 
 15. Nonresidents. 
 
 16. Private Corporations— Domestic. 
 
 17. Foreign. 
 
 IS. Municipal Corporations — Are not Garnishahle. 
 
 19. Municipal Officers not Garnishable. 
 
 20. A Matter of Statutory Construction. 
 
 21. Reasons for Exempting Municipal Corporations. 
 
 22. Reasons for not Exempting Municipal Corporations. 
 
 23. Exemption a Privilege Which may be Waived. 
 
 LAW GARNISH. (vii) 
 
Viii LAW OF GARNISHMENT. 
 
 § 24. Municipal Corporations— Cbancery Garnishment. 
 
 25. State and National Goyornments and Their Officers-Not Gar- 
 
 nishable Except by Consent. 
 
 26. Public Officers not Garnishable. 
 
 27. Courts and Their Officers— Not Garnishable for Property Held 
 
 Officially. 
 
 28. Some Officers Held not within the Rule. 
 
 29. Exemption not a Privilege of the Officer, but of the Court. 
 
 30. Chancery Garnishment. 
 
 31. Statutes Affecting Liability of Court Officers. 
 
 32. Limitation of the Rule that Officers are not Garnishable.— 
 
 The Reason Limits the Rule. 
 
 33. Officers Garnishable after Court Orders Payment. 
 
 34. And for Balances after Litigation is Concluded. 
 
 35. Limitation Applies to Administrators, Executors, Sheriffs, 
 
 etc. 
 
 36. Attorneys at Law. 
 
 37. Common Carriers. 
 
 38. Infants, Lunatics, and Married Women. 
 
 39. Plaintiffs. 
 
 40. Defendants. 
 
 41. Husband or Wife of Defend:int. 
 
 42. Officers and Agents of Defendant Corporations— Not Garnish- 
 
 able in Suits against Corporations. 
 
 43. Contra. 
 
 CHAPTER III. 
 
 LIABILITY OP GARNISHEE- HOW DETERMINED. 
 
 § 44. Fundamental Principles — Garnishee Chargeable Only When In- 
 debted to or Holding Property of Defendant. 
 
 45. Neither Defendant nor Garnishee can Defeat Garnishment 
 
 Once Attached. 
 
 46. - — • Plaintiff Acquires Defendant's Rights. 
 
 47. Garnishee not Chargeable because of Liability to Plain- 
 tiff or to Defendant as Trustee. 
 
 48. Garnishee's Position, Rights, and Defenses not Improved 
 
 or Impaired. 
 
 49. Pacts as They Existed When Summons was Served De- 
 termine Liability. 
 
TABLE OF CONTENTS. IX 
 
 50. Grounds of Liability. 
 
 51. Statutory Terms. 
 
 52. What Kind of Possession is Sufficient to Charge the Garnishee 
 
 —Control must be Actual and Exclusive of Defendant. 
 
 53. Actual Personal Possession not Necessary. 
 
 54. Right to Retain not Necessary. 
 
 55. Privity of Contract with Defendant not Necessary. 
 
 56. Possession as Trespasser or .Tailer. 
 
 57. What Constitutes a Debt— Promise to Pay Debt of Another— 
 
 Agency. 
 
 58. Privity of Contract. 
 
 59. Legacies, etc. 
 
 60. Garnishee's Contracts— Requiring Payment at Particular 
 
 Place. 
 <jl. Garnishee's Contract Rights not Impaired. 
 
 62. Insurance — Election to Rebuild. 
 
 63. Debts Payable on Completion of Contract. 
 
 64. When I-iable for Part Performance. 
 
 65. Contracts Made after Garnishment. 
 
 66. Assignments of the Garnished Property or Debt— Garnish- 
 
 ment Defeated by Prior Transfer. 
 
 67. Garnishee's Notice of Assignment. 
 
 68. Assignment without Notice to Assignee. 
 
 69. Splitting up Demands. 
 
 70. Orders, Checlis, and Drafts as Assignments of the Fund 
 
 Drawn on— An Equitable Assignment of Amount of Order. 
 
 71. Same — Commercial Banli Account. 
 
 72. Payee Has No Rights till Order is Accepted. 
 
 73. What is Assignable— Future Wages and Debts to Accrue— 
 
 Things Having No Existence. 
 
 74. Wages to be Earned under Existing Employment. 
 
 75. Invalid and Fraudulent Assignments— Bona Fides may be 
 
 Tried in Garnishment. 
 
 76. Plaintiff may Recover though Defendant could not. 
 
 77. No Matter Who Claims to Own It. 
 
 78. Pleadings — Proofs — Defenses. 
 
 79. Fraud a Question of Fact. 
 
 SO. Badges of Fraud. 
 
 81. Facts Raising Conclusive Presumption of Fraud. 
 
LAW OF GARNISHMENT. 
 
 CHAPTEE IV. 
 
 STATUTES EXEMPTING CERTAIN PROPERTY AND CREDITS 
 PROM GARNISHMENT. 
 
 § 82. What Property and Credits are Exempt. 
 
 83. Exemption— How Claimed— An Absolute Rigbt Indefeasible. 
 
 84. A Privilege to be Claimed and Proved. 
 
 85. Whether Right or Privilege, Defendant may and Gar- 
 nishee should Claim. 
 
 86. Exemption- How Waived. 
 
 87. Wages, Personal Earnings. Laborers, Householders, etc., De- 
 
 fined—Terms Liberally Construed. 
 
 88. Householders and Heads of Families. 
 
 89. — Wages, Salary, Personal Earnings, etc. 
 
 90. Combining Wages and Speculation. 
 
 91. Laborers, Clerks, Mechanics, etc. 
 
 92. Exemption not Affected by Residence. 
 
 93. Limitation of Right to Claim Exemption— Courts cannot Im- 
 
 pose. 
 
 94. Exemption against Debts for Necessaries and Labor. 
 
 95. Exempt Property cannot be Impounded by Garnishment. 
 
 96. Voluntary Sale of Exempt Property— Property not Garnish- 
 
 able because of Sale. 
 
 97. Proceeds may be Garnishable. 
 
 98. Proceeds of Exempt Property Destroyed or Converted with- 
 
 out Owner's Consent. 
 
 99. Personal Earnings and Pension Money lOxempt after Pay- 
 
 ment. 
 
 100. Exemption Laws have No Force Out of the State. 
 
 101. Limitation of Rule. 
 
 102. Remedy of Persons Defrauded of Their Exemption-May 
 
 Recover from Creditor. 
 
 103. May Enjoin Threatened Wrong. 
 
 104. Suits in Different States-Double Liability of Garnishee- 
 
 (iaruishment in Another Stale as i Defense. 
 
 105. Whether Ground for Continuance or Plea in Bar. 
 
 106. Pleading Exemption in Other St.ntes. 
 
 107. Extent and Reason of Protection. 
 
TABLE OF C0NTP:NTS. XI 
 
 CHAPTER V. 
 
 DEBTS AND PROPERTY WHICH ARE SUBJECT TO GAR- 
 NISHMENT. 
 
 108. Corporate Stock— Not Liable to Creditors except by Statute. 
 
 109. Of Foreign Corporations. 
 
 110. Unrecorded Transfer. 
 
 111. Garnishable by Special Statute. 
 
 112. Stockholders' Liability for Unpaid Installments— After Call. 
 
 113. Before Call. 
 
 114. Call not Necessary. 
 
 115. Obligations not Payable in Money— When Garnishable. 
 llfi. Nature of Judgment upon. 
 
 117. Not Garnishable as "Debt." 
 
 118. Contingent Debts— The Rule. 
 
 119. Insurance Money before Proof of Loss. 
 
 120. Annuity and Rent not Due. 
 
 121. Other Illustrations. 
 
 122. Statutes Making Contingent Debts Garnishable. 
 
 123. Limitations of Rule. 
 
 124. Independent Promises. 
 
 125. Sales for Cash— Sales Resei-ving Title Till Payment. 
 
 126. Absolute Debts before Maturity. 
 
 127. Obligations for Payment of Which Defendant Holds Security. 
 
 128. Debts for Which Garnishee has Given His Note — Negotiabil- 
 
 ity and Rights of Holder Determined. 
 
 129. Nonnegotiable Notes. ' 
 
 130. Notes in Possession of Maker. 
 
 131. Statutes Making All Note Debts Garnishable as Simple 
 
 Debts. 
 
 132. Overruled Decisions to Same Effect. 
 
 133. Debts Evidenced by Notes in Circulation— How Gar- 
 
 nishable. 
 
 134. Debts Evidenced by Notes Overdue. 
 
 135. Note must be Surrendered or Bond Given. 
 
 136. Requiring Defendant to Hold or Produce. 
 
 137. Colorable Indorsements and Holders with Notice. 
 
 137a. Debts to Pay Which Check has been Given. 
 
XU LAW OF GARNISHMENT. 
 
 ? 138. Interest Due on Indebtedness — While Payment is Prevented 
 by Process. 
 
 139. When Garnishee Seelis to Profit by the Process. 
 
 140. Investing Funds— Interest as Damages. 
 
 141. Plaintiff Stands in Defendant's Shoes. 
 
 142. Liability Over to Defendant after Garnishment. 
 
 143. Demands in Suit or Judgment — Not Garnishable after Issue 
 
 .Toined. 
 
 144. Garnishable at Any Stage of Proceedings. 
 
 14o. Suit or Judgment and Garnishment must be before 
 
 Same Conrt. 
 
 146. How the Reason Limits the Rule. 
 
 147. Payment under Garnishment in Another State. 
 
 148. Rights of Action for Torts or for Damages Unliquidated- 
 
 Demands not Ascertainable by Computation. 
 
 149. Insurance before Adjustment of Loss. 
 
 150. Other Illustrations. 
 
 151. Usury— Breach of Warranty. 
 
 152. Effect of Verdict before Judgment— Appeals. 
 
 153. Equitable Claims— Whether Garnishment is a Legal or an 
 
 Equitable Proceeding. 
 
 15^- Equitable Rights not Garnishable under Proceeding 
 
 at Law. 
 
 155. Debts and Property Belonging to Part of the Defendants. 
 
 156. Debts and Property Belonging to the Defendant and Others 
 
 Jointly— Individual Partners Have No Interest in 
 Debts Due Partnership. 
 
 157. Debts Due Partnerships not Garnishable in Suits 
 
 against Individual Partners. 
 
 158. Corporeal Property of Partnerships Garnishable in 
 
 Such Suits. 
 
 159. Partnership Credits or Property Garnishable Indis- 
 
 criminately in Such Suits. 
 
 160. Interest of Partner after Dissolution and Accounting. 
 
 161. Suits against Individual for Firm Debts. 
 
 162. Debts Due Joint Creditors not Partners. 
 
 103. Choses in Action in the Garnishee's Possession-Not Liable to 
 Common-Law Process. 
 
 164. Not within the Terms of Garnishment Statutes. 
 
 165. When Subject to Execution are Garnishable. 
 
 166. Immaterial to Whom Payable. 
 
TABLE OF CONTENTS. Xlll 
 
 § 167. Choses in Aotion in the Garnishee's Possession— Uigbt to 
 Collect and Appropriate— Judgment Records— Account 
 Books. 
 
 168. The Written Evidence must be Connected with the 
 
 Debt. 
 
 169. Mortgaged, Pledged, and Incumbered Property— Who Holds 
 
 Legal Title. 
 
 170. Mortgagor's Equitable Interest not Garnishable. 
 
 171. Mortgagor's Equitable Interest Garnishable. 
 
 172. Nature of .ludgment for Mortgagor's Interest. 
 
 173. Duties of Mortgagee as Garnishee. 
 
 174. Plaintiff Only Acquires Defendant's Interest. 
 
 175. Actual Possession— Double Security— Right of Posses- 
 
 sion. 
 
 176. Mortgagee's Rights not Increased or Impaired— Future 
 
 Advances. 
 
 177. Real Property. 
 
 CHAPTER VI. 
 
 THE GARNISHEE'S POSITION, RIGHTS, AND DUTIES. 
 
 178. Position in General. 
 
 179. .4ls a Defendant. 
 
 180. As a Receiver. 
 
 181. As a Witness. 
 
 182. Rights of the Garnishee. 
 
 183. Duties of the Garnishee— To the Plaintiff. 
 
 184. To Third Persons. 
 
 CHAPTER VII. 
 
 GARNISHMENTS AND OTHER PROCEEDINGS CONCURRENT 
 —PRIORITY— ADDITIONAL REMEDIES. 
 
 § 185. Garnishment an Additional Remedy. 
 
 186. Nothing Discharged till Actual Payment. 
 
 187. Aid of Equity 
 
Xiv LAW OF GARNISHMENT. 
 
 § 188. Concuirent Garnishments of tbe Same Fund— Priority De- 
 pends on Date of Service— Satisfaction or Failure of Prior 
 Garnishment — Effect. 
 
 189. Remedies of Subsequent against Prior Garnishing Cred- 
 itors. 
 
 190. Other Garnishments— How Pleaded as Defense. 
 
 191. Double Liability from Improper Defense. 
 
 CHAPTER VIII. 
 
 EFFECT OF GARNISHMENT AS AN ATTACHMENT. 
 
 § 192. The Service of the Garnishment Attaches the Property or 
 Debt. 
 
 193. Creates a Specific Lien. 
 
 194. Places Property in Custodia Legis. 
 
 CHAPTER IX. 
 
 EFFECT OF GARNISHMENT AS A STAY OF OTHER PRO- 
 CEEDINGS AGAINST THE GARNISHEE. 
 
 § 195. What Actions are Stayed. 
 
 196. Manner of Pleading a Pending Garnishment — Cannot Abate 
 
 a Prior Suit. 
 
 197. Ground for Continuance on Motion. 
 
 198. May be Pleaded in Abatement of Subsequent Suit. 
 
 199. Pending Garnishment cannot be Pleaded in Bar, nor in 
 
 Abatement— (iround Only for Stay. 
 
 200. Form of Pleading not Strictly Regarded. 
 
 201. Garnishment in Another Jurisdiction. 
 
TABLE OF CONTENTS. 
 
 CHAPTBE, X, 
 
 EFFECT OF GARNISHMENT AS A DEFENSE TO SUBSE- 
 QUENT LIABILITY. 
 
 202. In General— Comnlete Defense against Plaintiff and Defend- 
 
 ant. 
 
 203. Not a Defense against Third Persons. 
 
 204. Unless Made Parties or Estopped. 
 
 205. When Garnishee has Made Full and Honest Defense. 
 
 206. Garnishee's Knowledge that Others than Defendant Claim 
 
 the Property — At Time of Disclosing or before Judgment. 
 
 207. After Judgment Conditional or Absolute. 
 
 208. How Far Judgment against the Garnishee and Unpaid is a 
 
 Defense. 
 
 209. Mode of Satisfying the Garnishment Judgment— Without 
 
 Execution. 
 
 210. In Something Other than Money. 
 
 211. How Far Garnishment Judgment is Res Judicata— Kcs Judi- 
 
 cata against the Plaintiff and the Garnishee. 
 
 212. Not Res Judicata against the Defendant and His Other 
 
 Creditors. 
 
 213. Essentials of a Judgment to De Valid as a Defense — .Must 
 
 Show Jurisdiction and Compliance witli Statute. 
 
 214. Presumptions in Favor of Jurisdiction and Regularity. 
 
 215. Erroneous or Default Judgment is Protective, though 
 
 Reversed after Payment. 
 
 216. Judgment against Part of Sundry Obiiijors. 
 
 217. Bad Faith in the Garnishee. 
 
 218. How the Defense should be Pleaded and P roved- Whether 
 
 Admissible in Evidence under General Issue. 
 
 219. What is Sufficient Special Plea or Notice. 
 
 220. What must be Proved, and How. 
 
XVi LAW OF GARNISHMENT. 
 
 CHAPTER XI. 
 
 JURISDICTION. 
 
 § 221. In General— Definition and Essentials. 
 
 222. Outline. 
 
 223. Inherent Autliority of the Court. 
 
 224. Jurisdiction of the Principal Suit— Essential to Support Gar 
 
 nishment Proceedings. 
 
 225. Garnishee may Question. 
 
 226. Cannot Object to Errors not Affecting Jurisdiction. 
 
 227. Conclusive Presuinpllon of Absolute Verity cf the Record. 
 
 228. Recitals of Record not Conclusive. 
 
 229. Whether Record is Conclusive against Garnishee. 
 
 230. Effect of General Appearance by Defendant— Before Garnish- 
 
 ment is Instituted. 
 
 231. After Garnishment is Inshtuted. 
 
 232. Appearance in Garnishment Suit. 
 
 233. Jurisdiction Acquired by Substituted Service. 
 
 234. Jurisdiction of the Garnishment Suit. 
 
 235. Dependent upon Amount Involved. 
 
 236. Dependent upon Jurisdiction over the Main Action. 
 
 237. Dependent upon Garnishee's Residence. 
 
 238. Dependent upon Compliance with Statutory Require- 
 ments. 
 
 239. Jurisdiction of tlie Property Sought to be Garnished — Rfisume. 
 
 240. — — Corporeal Property beyond Territorial Limits of Jurisdic- 
 
 tion. 
 
 241. No Court can Proceed in Rem without a Res within the 
 
 Jurisdiction. 
 
 242. How Far Residence of Owner Affects Situs of Debts. 
 
 243. Injustice Caused by Conflicting Decisions on This Ques- 
 tion. 
 
 244. Other Rules to Determine Situs of Debts. 
 
 245. The True Criterion to Determine Situs in Garnishment. 
 
 240. Not Necessarily the Same as Determines Rights of Par- 
 ties. 
 
TABLE OF CONTKNTS. 
 
 CHAPTER XII. 
 
 AFFIDAVIT, SUilMONS, SERVICE, RETUKX, NOTICE TO DE- 
 PENDANT, AND DISSOLUTION PUOCj. .DINulS. 
 
 § 247. Affidavit — Jurisdictional Prerequisites — A Complaint — En- 
 titling. 
 -'48. Misjoinder of Actions— One Atfidavit for Two Writs 
 
 249. Judgment can be Only tor the Liability Charged in the 
 
 Affidavit. 
 
 250. Averments— Positive and Alternative— Quulitications of 
 
 Affiant and Magistrate. 
 
 251. What Averments are Essential. 
 
 252. What Averments are Unnecessary. 
 
 '2o3. Amending the Affidavit. 
 
 254. Proper Phrasing of Essential Averments. 
 
 255. Time of Swearing to and Filing the Affidavit. 
 
 25(3. Summons or Writ of Garnishment — Issues of Course, Pur- 
 suant to Affidavit. 
 257. Special Notice. 
 
 208. The Writ is a Process, and must Possess Process Ele- 
 ments. 
 
 259. - — Entitling— One Summons for Two Suits. 
 
 260. Execuiors, Corporations, etc.— How Named as Gar- 
 nishees. 
 
 261. All Obligees must be Named in, to Reach Joint Lia- 
 bility. 
 
 262. Joint and Several Obligees as Garnishees. 
 
 2G3. Garnishees Severally Liable, Named as Joint. 
 
 264. When Returnable. 
 
 265. Must be in Writing, and Contain Statutory Clauses. 
 
 266. Naming and Misnaming the Parties. 
 
 267. Errors and Irregularities— How Taken Advantage of and 
 
 Cured. 
 
 268. Service of Garnishment Summons — Must be Made within 
 
 Proper Time and Territory by Proper Officer. 
 
 209. Must Otherwise Comply with Statute. 
 
 270. Garnishee may Waive Irregularities. 
 
 271. Garnishee cannot Waive Jurisdictional Defects. 
 
 LAW GARNISH. — 4 
 
yiii LAW OF GARNISHMENT. 
 
 272. Service of Garnishment Summons— Upon Natural Persons. 
 
 273. Upon Corporations. 
 
 ■jli, Laws for Substituted Service Constitutional. 
 
 275. Such Statutes must be Strictly Pursued. 
 
 276. Such Service not Foundation for Personal Judgment. 
 
 277. The Officer's Return— The Only Proper Evidence of Service. 
 
 278. Should State Acts Done, the Time, and Persons Served. 
 
 279. Defects in— Hovy Cureu. 
 
 280. Notice of the Garnishment to the Principal Defendant-No 
 
 Notice Need be Served on Defendant. 
 
 281. Notice Required by Statute to Secure Good Faith. 
 
 282? Whether Jurisdictional. 
 
 283. Time, Manner, Sufficiency, and Waiver of Service of 
 
 This Notice. 
 
 284. Proceedings to Vacate Garnishment for Errors, etc. 
 
 285. The Appearance of the Garnishee— Manner, Right of, and 
 
 How Enforced. 
 28G. Effect of General Appearance 
 
 CHAPTER XIII. 
 
 THE DISCLOSURE OR ANSWER OF THE GARNISHEE. 
 
 287. Its Nature- Evidence Merely, and Indisputable. 
 
 288. — - Evidence Equivalent to an Answer in Chancery or One 
 
 \A'itness. 
 
 289. Pure Pleading, not Admissible in Evidence. 
 
 290. The Garnishee's Refusal to Answer— Special Appearance to 
 
 Raise Objection. 
 
 291. Improper Qiiestions. 
 
 292. Contumacious Refusal — Demanding Ruling before An- 
 swering. 
 
 293. When Answer may be Made— Under Writs Contemplating In- 
 
 terrogatories or Further Notice before Answer. 
 
 294. Under Writs Requiring Appearance and Answer with- 
 out Further Notice. 
 
 295. Court may Extend the Time. 
 
 290. Answer may be Made of Course, at Any Time before De- 
 fault Entered, and by Permission Afterwards. 
 297. Default against Plaintiff for not Taking Answer. 
 
TABLE OF CONTENTS. XIX 
 
 298. How the Answer should be Made. 
 
 299. By Whom Answer should be Made— The Plaintiff has a 
 
 Right to Examine the Garnishee Personally. 
 
 300. Who may Answer for a Corporation as Garnishee. 
 
 301. What the Answer should State, and How— Should Fully and 
 
 Impartially State All Facts Affecting Garnishee's Liabil- 
 ity. 
 
 302. Effect of Failure to State Facts Correctly in the Answer. 
 
 303. May State Facts on Information and Belief— Presump- 
 tion of Truth. 
 
 304. Cannot be Required to State Facts on Information. 
 
 305. Double Liability from Defective Answer. 
 
 30(). Garnishee should Never Suffer Judgment by Default. 
 
 307. Exceptions to the Sufficiency of the Answer. 
 
 308. Extent of Plaintiff's Right to Examine the Garnishee. 
 
 300. Amending, Supplementing, Modifying, and Contradicting the 
 Disclosure — Should be Liberally Allowed to Prevent Injus- 
 tice. 
 
 310. Answer not Amendable of Course, but by Permission. 
 
 311. Some Amendments of Course, and Some of Right. 
 
 312. Construction and Effect to be Given to the Garnishee's An- 
 
 swer—Equivocal Statements— Language not Distorted. 
 
 313. Statements of Fact and Conclusions of Law — Presump- 
 tion of Truth. 
 
 314. Liability must Clearly Appear, or Garnishee will be 
 
 Discharged. 
 
 315. When Disclosure Shows Prima Facie Liability. 
 
 CHAPTER XIV. 
 
 SCIRE FACIAS, PAYMENT INTO COURT. DISSOLUTION 
 BOND, AND CHANGE OF VENUE. 
 
 31G. Scire Facias, or Summons to Show Cause. 
 
 317. Payment of Garnished Property into Court. 
 
 318. Bond to Discharge the Garnishee and Release the Property 
 
 Garnished— Object and Construction of Statutes. 
 
 319. Right to Release on Bond Statutory— Effect of Bond. 
 
 320. Bond to Fay What Plaintiff may Recover in Main Action. 
 
 321. Bond to Pay What might be Recovered of Garnishee. 
 
XX LAW OF GARNISlIMIiNT. 
 
 § 322. Bond to Discharge the Garnishee and Release the Property 
 Garnished— Construction of Bond. 
 
 323. Defenses to Action on Bond. 
 
 324. The Manner of Enforcing the Obligation. 
 
 325. Change of Venue. 
 
 326. Garnishment not Separable from Main Action. 
 
 327. Garnishment an Action Entitling Parties to Change. 
 
 328. Who may Have Change of Venue, and VS''hen. 
 
 CHAPTER XV. 
 
 BRINGING IN CLAIMANTS OF THE GARNISHED PROPERTY, 
 AND TRYING THEIR RIGHTS. 
 
 § 329. General Considerations— What to Do When Claimants are 
 Disclosed. 
 
 330. When Claimant may Prosecute a Suit of His Own. 
 
 331. Other Suits by Plaintiff or Garnishee. 
 
 332. Origin and Purpose of Intervening Acts. 
 
 333. Action is Stayed till Claimant is Interpleaded. 
 
 334. When Claims may be Made. 
 
 335. Who may Suggest That There are Claimants— Claimant may 
 
 Appear and Assert His Claim. 
 
 336. Garnishee may Suggest Claimants 
 
 337. Plaintiff's Right to Suggest Claimants. 
 
 338. Defendant's Right to Suggest Claimants. 
 
 339. Authority of Court to Bring in Claimants of Its Own 
 
 Motion. 
 
 340. Order of Court Interpleading Claimants. 
 
 341. Nature and Sufficiency of Notice to Claimants. 
 
 342. Forming the Issue between the Claimant and the Plaintiff — 
 
 Claimant Has Affirmative, and Files First Pleading. 
 
 343. He must Rely on the Strength of His Own Claim. 
 
 344. Cannot Allege Errors in the Proceedings, nor Contest the 
 
 Garnishee's Liability. 
 
 345. Garnishee not a Party to This Issue. 
 
 346. Plaintiff's Reply or Plea to Claimant's Complaint. 
 
 347. Trial of the Issue between Claimant and Plaintiff— This Is- 
 
 sue is Tried before the Issue between Plaintiff and Gar- 
 nishee. 
 
 348. Trial to Jury— Right to Begin— Burden of Proof. 
 
TABLE OF CONTENTS. XXI 
 
 § 349. Trial of the Issue between Claimant and Plaintiff— Conduct 
 of Trial— Riglits and Defenses. 
 
 350. Judgment between Plaintiff and Claimant— Judgment in Fa- 
 
 vor of Plaintiff. 
 
 351. Judgment in Favor of Claimant. 
 
 CHAPTER XVI. 
 
 THE ISSUE BETWEEN THE PLAINTIFF AND THE GAR- 
 NISHEE. 
 
 352. Issue — Hovy Formed — Procedure Purely Statutory. 
 
 353. Tbe Affidavit a Declaration— The Answer a Plea. 
 
 354. New Declaration or Action against Garnishee. 
 
 355. Irregularities are Waived by Going to Trial. 
 
 350. Notice of Taking Issue on the Answer of the Garnishee. 
 
 357. Specific Allegations— How Far Required— Must Show Nature 
 
 of Claim, and State Cause of Action. 
 3.58. Proof of Facts not Alleged— Amendments. 
 
 359. Attacking Sufficiency of Allegations. 
 
 360. When Issue may be Taken on the Answer— Reasonable Time 
 
 —Statutory Period. 
 
 361. Taking Issue after Time Limited. 
 
 362. After Judgment or Motion for Judgment. 
 
 363. Nature and Scope of the Issue. 
 
 CHAPTBE XVH. 
 
 TRIAL OP THE ISSUE BETWEEN THE PLAINTIFF AND THE 
 GARNISHEE.' 
 
 § 3G4. Time for Trial— Whether before Judgment in .Main Action. 
 
 365. Garnishee's Right to Speedy Trial. 
 
 3GC. Either Party may Notice for Trial. 
 
 307. Manner of Trial— By Court, Same as in Other Actions. 
 
 368. Right to Trial to Jury. 
 
 309. What Plaintiff must Prove— Has Burden to Show Liability 
 
 of Garnishee, Its Nature and Amount. 
 370. Need not Prove What Appears of Record in Proceed- 
 ings or Main Action Unless Alleged. 
 
XXll LAW OF GARNISHMENT. 
 
 § 371. Competency of Evidence and Witnesses— Evidence Confined 
 to Issue. 
 
 372. Evidence for Plaintiff. 
 
 373. Evidence for Garnishee. 
 
 374. The Defense— Defendant and Claimants cannot Take Part in. 
 
 375. Garnishee may Question Proceedings in Main Action, 
 
 and Protect Claimants. 
 
 370. Irregularities— Statute of Limitations— Failure of Cou- 
 
 slderation— Equitable Defenses. 
 
 377. Agreements within Statute of Frauds. 
 
 378. May Prove Set-OfC or Recoupment as if Sued by De- 
 fendant. 
 
 370. Various Rules as to What Demands may be Set Off. 
 
 380. After-Acquired Claims — Burden of Proof — Intention tu 
 
 Claim against Defendant. 
 
 381. Matters in Abatement of Action. 
 
 382. Only the Judgment can Terminate the Action. 
 
 CHAPTER XVIII. 
 
 JUDGMENT. 
 
 § 383. Time and Notice of Application for Judgment— Judgment may 
 be Had at Any Time after Answer. 
 
 384. Notice of Application for Judgment. 
 
 385. Judgment cannot be Rendered before Judgment in Main 
 
 Action. 
 
 386. Judgment by Default— Entering and Setting Aside. 
 
 387. Nature and Effect of. 
 
 388. Scire Facias and Proof of Regularity on. 
 
 389. Judgment on the Pleadings. 
 
 390. Setting Aside Judgments. 
 
 391. Nature and Amount of Judgment— Some Statutes Allow no 
 
 Final Judgment against Garnishee. 
 
 392. Limited in Amount by Liability of Defendant and Gar- 
 nishee. 
 
 393. Judgment for Property in Garnishee's Possession and 
 
 Debts not Payable in Money. 
 
 394. For Unmatured Debts— Following Affidavit. 
 
 395. Judgment Record— Form and Substance— Entitling— Com- 
 
 bining. 
 
 396. Recitals and Averments— Time of Recording. 
 
TABLE OF CONTENTS. XXIU 
 
 CHAPTER XIX. 
 
 COSTS AND EXECUTION. 
 
 397. Costs in General. 
 
 398. Costs when Garnishee is Charged. 
 
 399. Costs when Garnishee is Discharged — Without Contest. 
 
 400. Upon Trial. 
 
 401. Costs on Appeal. 
 
 402. Execution. 
 
 CHAPTER XX. 
 
 APPEALS. 
 
 403. Risht to Appeal — No Party can Complain of a Judgment 
 
 against Another. 
 
 404. Each Party must Appeal for Himself. 
 
 405. Right to Appeal Statutory. 
 
 406. From What Appeal Lies. 
 
 407. Effect of Appeal. 
 
 408. The Record. 
 
 409. The Action of the Appellate Court. 
 
 TABLE OF CASES CITED. 
 
 (Page XXV.) 
 
 ANALYTICAL INDEX. 
 
 (Page 535.) 
 
 TOPICAL INDEX. 
 
 (Page 543.) 
 
CASES CITED. 
 
 [the figures refer to sections.] 
 
 Abbott V. Davidson, 66. 
 V SmitH, m. 
 V. Stinchfield, 139, 193. 
 Abernathy v. Whitehead, 1S9. 
 Abies V. Miller, 354. 
 Abrahams v. Anderson, 91. 
 Acme Lumber Go. v. Francis 
 Vandergrift Shoe Co., 265, 277. 
 Adams V. Barrett, 35. 
 V. Beard, 348. 
 V. Cordis, 139, 140, 398. 
 V. Filer, 182. 184, 202, 203, 204, 
 
 206, 333. 
 V. Haskell, 27. 
 V. Lane, 35. 
 V. Penzell, 397. 
 V. Scott, 37, 60. 
 V. Tyler, 18. 
 v. Wheeler, 170. 
 V. Willimantic Linen Co., 273. 
 Aderholt v. Smith, 193. 
 Adkins V. Watson, 3.54, 357. 
 Adlum V. Yard, 288. 
 Ague V. New York Bolting Co., 
 
 74. 
 Ahrens & Olt Manut'g Co. v. 
 Fattou Sash, Door & Building 
 Co., 1S5. 248, 286. 
 Akins V. Stradley, 27. 
 Alabama G. S. Ry. Co. v. Chum- 
 bey, 17, 213, 243. 
 Alamo Ice Co. v. Yancey, 311, 335, 
 336, 346, 403, 404. 
 
 LAW GARNISH. 
 
 Albachten v. Chicago, St. P. & 
 
 K. C. Ky. Co.; 405, 406. 
 Albert v. Albert, 7, 39, 226, 285, 
 
 398. 
 Albion Lead Works v. Citizens' 
 
 Ins. Co., 140, 142. 
 Albrecht v. Treitschke, 102. 
 Aldis V. Hull, 10. 
 Aldrich v. Brooks, 117. 
 
 V. Woodcock, 192. 
 Alexander v. Equitable Fire Ins. 
 Co., 268. 
 V. Lloyd, 268. 
 Allard V. Dp Brott, 381. 
 Allegheny Sav. Bank v. Meyer, 
 
 138. 
 Allen V. Connecticut River Lum- 
 ber Co., 237. 
 V. Erie City Bank, 164. 
 \. Hf.ll, 48, 50, 176, 193, 378, 
 
 379. 
 V. Hazen, 151. 288, .'llO, 314, 
 
 371. 
 V. Meggure, 176, 378. 
 V. Partlow, 405. 
 V. Seaver, 215, 405, 407. 
 V. Spatford, 206. 
 T. Watt, 147, 197, 202. 
 V. Wright, 15. 
 Alley V. Meyers, 396. 
 Alliance Milling Co. v. Eaton, 68. 
 Allison V. Chicago, B. & Q. Ry. 
 Co., 44, 161. 
 V. Thomas, 260. 
 Almy V. Piatt, 3, 180, 187, 193. 
 
 (xxv) 
 
XXVI 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Alpena, The, .")1. 
 
 Alsdorf V. Reed, 127. 192. 
 
 Alston, JBx parte, 272. 
 
 Alston V. Clay, 27. 
 
 Ambs V. Towle, 211. 
 
 American Bank v. Rollins, 14.5. 
 
 V. Snow, 145. 
 American Buttonhole, Overseam- 
 ing & Sewing Mach. Co. y. Bur- 
 gess, 309. 
 American Cent. Ins. Co. v. Het- 
 
 tler, 178, 1U2, 214, 244. 
 American Forcite Powiler 
 
 Manuf'g Co. v. Malone, G4. 
 Ammendale Normal Inst. t. An- 
 derson, 331. 
 Amoskeag Manuf'g Co. v. Gibbs, 
 
 131. 
 Anderson v. Graff, 279, 37S, 3S6. 
 y. Udell, 96. 
 V. Shaffer, 276. 
 V. Wanzer, 120, 299. 
 V. Young, 202. 
 Andre v. Fitzhugh, 322. 
 Andrews y. Herring, 217. 
 
 V. Ludlow, .52, 164, 37S. 
 Anthanissen v. Dart, 35. 
 Anthony v. Wood, 75. 
 Archer v. People's Sav. Bank, 49, 
 
 183, 378. 
 Arenz v. Reihle, 372, 409. 
 Armor v. Cockburn, 65. 
 Armour Bros. Banking Co. v. St. 
 Louis >iat. Bank, 109, 111, 1(S. 
 Armstrong y. Cowles, 48. 
 Arndt v. Griggs, 233. 
 Arnold v. Blwell, 170. 
 V. Gullatt, 296, 385. 
 V. Waltz, 88. 
 Arthur V. Batte, 187. 
 
 V. Hale, 391. 
 Ash V. Aiken, 190, 194. 
 Ashby V. Watson, 289, 378. 
 Ashly V. Dunn. 382. 
 Association v. Weems, 333, 356, 
 
 384, 
 Atcheson v. Smith, 215, 226, 404, 
 Atchinson v. Rosalip, 3, 13, 395, 
 
 Atchison, T. & S. F. Ry. Co. v. 
 
 Maggard, 101, 242. 
 Atkins V. Prescott, 2C1. 
 
 V. Sexton, 158. 
 Atkinson v. Weidner, 77, 81. 
 Atlantic Fire & Marine Ins. Co. 
 
 V. Wilson, 38t>. 
 Atlantic & Pac. By. Co. v. Hop- 
 kins, 391. 
 Atwood V. Dumas, 46, 111. 
 
 V. West Roxbui-y Go-op. Bank, 
 320. 
 Au.irur y. New I'ork Belting Co.. 
 
 74. 
 Aultmar & Miller Co. v. Mark- 
 ley, 155, 248, 249, 250, 252, 253, 
 282. 
 Austin y. First Nat. Bank, 81. 
 V. Latham, 253. 
 V. Ryan, 67, 134. 
 Ayerill v. Tucker. 26. 
 Axraan v. Dueker, 214, 215, 270. 
 Axtell V. Gibbs, 2, 5, 224. 
 Ayer y. Brown, 36. 
 Ayott y. Smith, 67, 131. 
 
 B 
 
 Badlam y. Tucker, 170. 
 
 Bacon Academy v. De Wolf. 391. 
 
 Baer v. English, 72, 377. 
 
 V. Otto, 84. 
 Bailey v. Lacey. 40. 
 
 V. Ross, 176, 193, 375, 37S. 
 
 V. Steve, 97. 
 
 V. Union Pac. Ry. Co., 300, 
 377. 
 Baird v. Rogers, 23. 
 Baker v. Central Vt. Ry. Co., 139. 
 
 V. Harding, 94. 
 
 y. Lancashire Ins. Co., 398. 
 
 y. Mix, 371. 
 
 V. Moody, 313. 
 Baker's Appeal, 211, 301, 371. 
 Baldy v. Brady, 200. 
 Baldwin v. Hosmer Circuit 
 Judge, 187, 330. 
 
CASES CITED. 
 
 [The figures refer to sections.] 
 
 Balkum v. Reeves, 318, 319. 
 v. Strauss, 318, 319, 321. 
 Ball V. Citizens' Nat. Bank, 37G. 
 V. Gilbert, 401. 
 V. Young, 2G3. 
 Balliet v. Scott, 44, 01. 
 Balston Spa Bank v. Marine 
 
 Bank, 43. 
 Baltimore v. Root, 18. 
 Baltimore & O. Ry. Co. v. Galla- 
 hue, 16, 17, 61, 118, 273, 
 300, 372. 
 V. May, 104, 107, 201, 202, 210. 
 V. Taylor, 230, 267, 398. 
 V. Wheeler, 61. 
 Bank of Chester v. Ralston, 31. 
 Bank of Le Roy v. Harding, 391. 
 Bank of Jliddlebury v. Edger- 
 
 tou, 27, 188. 
 Bank of Northern Liberties v. 
 
 Jones, 57. 
 Bank of St. Mary v. Morton, 67. 
 Bank of South Carolina v. Levy, 
 
 174. 
 Bank of Southern Georgia v. 
 
 Amer-icus, Mayor, etc., of, 18. 
 Bank of State of Mo. v. Bredow, 
 
 1U,5. 
 Bank of Tennessee v. Dibrell, 2.j 
 Banks v. Hunt, 361, 
 
 v. Rodenback, 90. 
 Banning v. Sibley, 2, 7, 51, 60, 
 77, 165, 177, 181, 193, 314, 409. 
 Barber v Howd, 181, 209, 210, 
 213, 295, 299, 308, 309, 
 316, 317. 
 V. Ferrill, 2. 
 V. Walker, 217, 403. 
 Barker v. Estey, 5S, 151. 
 V. Lynch, 7(), 107. 
 v. Osborne, 312, 315. 
 Barnard v. Graves, 57, 137a. 
 
 V. Moore, 176. 
 Barnes v. Reilly, Circuit Judge 
 of Wayne Co., 372. 
 V. Treat, 27. 
 Barnet's Case, 7. 
 Barnett v. Weaver, 27. 
 
 Barney v. Douglas, 131. 
 Barr v. King, 17. 
 V. Perry, 284. 
 Barrett v. Thomas, 393. 
 Barron v. Porter, 67. 
 Bari'ow v. West, 202. 242. 
 Barry v. Fisher, 157. 
 Bartell v. Bauman, 35. 
 Bartlett v. Wilbur, 375. 
 V. Wood, 115, 116, 162. 
 V. Woodvcard, 157. 
 Barton v. Albright, 212. 
 
 V. Smith, 213, 214, 385, 396. 
 V. Spencer, 5, 188, 192, 193, 
 194. 
 Bartram v. Collins Manufg Co., 
 
 16. 
 Bassett v. Parsons, 342. 
 
 V. Garthwaile, 133, 34S. 
 Batchellor v. Richardson, 5, 6, 
 
 277, 307, 311, 371. 
 Bateman v. Grand Rapids & I. 
 
 Ry. Co., 46. 
 Bates V. Cbicago, M. & St. P. Ry. 
 Co., 37, 49, 240. 
 V. Days. 190. 
 V. Forsythe, 359. 
 V. Tappan, 45. 
 Battel! V. I^owery, 385. 
 Battles -v. Simmons, 291, 308. 
 Baxter v. Currier, 177. 
 
 V. Missouri, K. & T. Ry. Co., 
 
 308. 
 V. Vincent, 15,' 212. 
 Bay City Brevs'ing Co. v. Mc- 
 
 Donell, 46. 
 Baylies v. Houghton, 107, 128, 
 
 244. 
 Beach v. Fairbanks, 39. 
 V. Swift, 371, 372, 373. 
 v. Viles, 378. 
 Beamer v. Winter, 1, 7, 192, 194. 
 Beau V. Barney, 261, 272, 308, 3i;{, 
 396. 
 V Germania Life Ins. Co., !):!. 
 Bearden v. Metropolitan St. Ry. 
 Co., 295. 
 
XXVUl 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Beatty v. Lehigh Val. Ry. Co., 
 
 -il.j. 
 Beaumont v. Eason, 193. 
 Beaupre v. Brigliam, 224, 22.j, 
 
 282, 283. 
 Bebb V. Preston, 81, 301, 307, 312, 
 
 818, 857, 358, 363, 405. 
 Beck V. Cole, 45, 49, GO, 67, 60, 
 
 81, 252, 367. 
 Becker v. Huime, 376. 
 Becknell v. Beclsnell, 287. 
 Beckwith v. Borrough, 110. 
 B. E. Clark, The, 308. 
 Beers t. Botsford, 79. 
 
 Y. Arkansas, 25. 
 Belcher v. Grubb, 144, 197. 
 Bell y. Burke, 188. 
 
 V. Indian Live Stock Co., 89, 
 
 92. 
 V. Jones, 308. 
 V. Kendrick, 177, 291. 
 V. Strow, 310. 
 V. Wood, 45, 144, 257. 
 Belk lap v. Gibbens, 39. 
 Below V. Bobbins, 9S. 
 Benbow v. Xiollom, 183. 
 Bender v. Bridge, 203. 
 Bentley v. Shrieve, 27. 
 Benton v. Lindell, 376. 
 Bergman v. Sells, 848. 
 Berles v. Adsit, 41, 291. 
 Bernlieim v. Brogan, 397,398,400. 
 
 V. Davitt, 98. 
 Berry v. Davis, 5, 138, 233, 242, 
 897. 
 V. Harris, 100. 
 Bethel v. Judgeof Superior Court, 
 2, 7, 49, 161, 192, 193, 202, 
 381. 
 V. Linn, II, 76, 79, 180, 202, 
 247, 288, 815, 353, 369. 
 Beverstock v. Brown, 31, 118. 
 Bibb V. Tomberlin, 206. 
 Bickford v. Rich, 140. 
 Bickle V. Chrisman, 381. 
 Bigalow V. Barre, 215, 316, 384, 
 
 392, 402, 406, 409. 
 Bigelow V. Andress, 187, 198, 194. 
 
 Biggs V. Kouns, 194. 
 
 Bills V. National Park Bk.. 133, 
 
 137. 
 Bingham v. Lamping, 37, 53. 
 
 V, Port Royal & A. Ry. Co., 
 273. 
 
 V. Rushing, 11, 118. 
 Binzel v. Gorgan, 97. 
 Bird v. Taylor, 188. 
 Birmingham Nat. Bank v. Mayer, 
 
 46, 355, 860, 878, 392, 396, 408. 
 Birtwhistle v. Woodward, 154, 
 
 157, 160, 369. 
 Biscoe V. Bank, 25. 
 Bishop V. Catlin, 75, 77, 378. 
 
 V. Holcomb, 66. 
 
 V. Middleton, 102. 
 
 V. Young, 118. 
 Bissell V. Strong, 177. 
 Bivens v. Harper, IS. 
 Black V. Black, 144, 145. 
 
 V. Brisbin, 184, 217, 224, 255, 
 303, 844. 
 
 V- U.Twson, 12, 77, 2(;3, 869, 
 409. 
 
 V. Zacharie, 110. 
 Blackburn v. Davidson, 116. 
 Blackman v. Smith, 843, 344. 
 Blackou V. Ballentine, 316. 
 Blackstone v. St. I,,ouis, I. M. & 
 
 S. R., 362. 
 Blair v. Cantey, 27. 
 
 v. Compton. 108. 
 
 V. Hllgedick, 197, 199. 
 
 V. Newell, 288. 
 
 V. Porter, 188. 
 
 ■" Puryear, 335. 
 
 V. Rhodes, 117, 408. 
 Blaisdel) v. Bowers, 127, 397. 
 
 V. Ladd, 39, 189, 193. 
 Blake v. Adams, 144. 
 
 V. Bolte, 88. 
 
 V. Hubbard, 10, 77, 182, 185. 
 188. 865. 
 
 v. Williams, 60. 
 Blake Crusher Co. v. Town of 
 
 New Haven, 47, 372. 
 Blanchard v. Cole, 379. 
 
CASES CITED. 
 
 [The figures refer to sections.] 
 
 Blankenship & Blake Co. v. Moore, 
 liiO, 370. 
 
 Bliss V. Smitii, 13, 49, 95. 
 
 Blodgett V. Gardiner, 139. 
 
 Bloodgood V. Meissner, 55, 75, 93, 
 9t), 349. 
 
 Board ot Com'rs of Las Animas 
 Co. V. Bond, 18, 23. 
 
 Board of Com'rs of Mesa Co. v. 
 Brown, IS. 
 
 Board of Education v. Dupar- 
 quet, UO. 
 V. Scoville, 391. 
 
 Board of Education of City & 
 County of San Francisco v. 
 Blaise, 18. 
 
 Boardman v. Roe, 151, 177, 291. 
 
 Bolter V. Girton, 1U2. 
 
 Bolton V. Penu. Co., 202. 
 
 Bond V. Neuscliwander, 38, 3S6. 
 
 Bonnatt'on v. Thompson, 309. 
 
 Bonner v. Martin, 388. 
 
 Boone v. Mcintosh, 1G7. 
 
 Boone County v. Keck, 18. 
 
 Booth V. Denike, 6, 251, 253. 
 V. Gish, 54, 192, 194. 
 
 Boozer v. Tuller, 3G8. 
 
 Borden v. Noble, 381. 
 
 Born V. Staaden, 204, 303, 315. 
 V. AVilliams, 18, 23, 321, 387. 
 
 Boston L/oan & Trust Co. v. Or- 
 gan, 172, 177. 
 
 Boston & M. Ry. Co. v. Oliver, 
 379. 
 
 Boston Type & Stereotype Foun- 
 dry Co. V. Mortimer, 48, 378, 
 379. 
 
 Boston, City of, v. Worthington, 
 204. 
 
 Bostwlck V. Bass, 303. 
 
 V. Beach, 288, 373, 382, 385, 
 
 408. 
 V. Bryant, 137, 192, 193, 205, 
 207, 208, 216, 220, 201. 
 
 Boswell's Lessee v. Otis, 233. 
 
 Botsford V. Simmons, 50, 249, 250, 
 308, 303. 
 
 Bottom V. Clarke, 54. 
 
 Bough V. Kirkspatrick, 378. 
 Bdutwell V. McClure, 349. 
 Bowden v. Schatzell, 27. 
 Bowen v. Pope, 240. 
 Bowers v. Continental Ins. Co. 
 
 251, 2.53. 
 Bowker v. Hill, 42, 104. 
 Boyd V. Bayless, 39. 
 
 V. Brown, 110, 117. 
 
 V. Chesapeake & O. Canal 
 Co., 10, 258, 273. 
 
 V. Cobbs, 333. 
 
 V. Royal Ins. Co., 190. 
 
 V. Rutledse, 394, 395, 396. 
 Boyden v. Ward, 13, 47. 
 Boyer v. Hawkins, 6, 8, 13, 27, 31, 
 
 35, 59, 297. 
 Boyle V. Maroney, 177, 202. 
 Boylen v. Leonard, 74. 
 
 V. i;oung, 334, 335, 343. 
 Boynton v. Foster, 407. 
 Brackett v. Blake, 74. 
 Brackon v. Ballentine, 310, 385 
 Bradford v. Beyer, 78, 370. 
 
 V. Mills, 17. 
 Bradley v. Byerley, 82, 174, 408. 
 
 V. Richmond, 18. 
 Bragg V. Gaynor, 3. 180, 187, 193, 
 
 242, 331, 341. 
 Bragunier v. Beck & Corbett Iron 
 
 Co., 53, 54, 174. 
 Brainard v. Shannon, 85, 312, 409. 
 
 V. Simmons, 82, 90, 98, 287, 
 288, 299, 307, 314, 3J9, 408. 
 
 V. Van Kuren, 75. 
 Brake v. Curd-Sinton Manuf'g 
 
 Co., 354, 360, 390. 
 Branch v. Tomlinson, 86. 
 Branch Bank v. Pee, 126, 300. 
 Brande v. Bond, 154. 150, 195. 
 Brannon v. Noble, 208. 
 Brashear v. West, 194. 
 Brauser v. New Eng. Fire Ins. 
 
 Co., 17, 2,52, 284. 
 Bray v. \\'allingford, 7, 18, 300. 
 Braynard v. Simmons, 10. 
 
 V. Burpee, 400. 
 Breading y. Seigworth, 212, 398. 
 
XXX 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Brealsford v. Meade, 2G1. 
 Brecht v. Corby, 279. 
 Bresnahan v. Nugent, 76. 
 Brewer v. Pitkin, (>8, 176, 378. 
 Briant v. Reed, 133, 137, 187, 331. 
 Brice V. Carr, 180. 
 Brickett v. Nichols, 67. 
 Brickey v. Davis, 190. 
 Bridgman, In Re, 27. 
 Bridges v. Sheldon, 1-tO, 200. 
 Brierre v. His Creditors, 89. 
 Brigden ,v. Gill, 58, 59. 
 Briggs V. Beach, 117, 235. 
 
 V. Block, 57. 
 
 V. JMcJiJwen, 125, 127, 202. 
 Briscoe v. Bank of Kentucky, 25. 
 
 V. Montgomery, 91. 
 Britt V. Bradshaw, 358. 
 Britton v. Preston, 131. 
 Broadhurst v. Morgan, 213. 
 Broadmau v. Gushing, 379. 
 Broadstreet v. Clark, 100, 101. 242. 
 Broadway Bank v. McBlrath, 110. 
 Brook V. Smith, 195, 197, 218. 
 Brooks V. Cook, 27. 
 
 V. Hildreth, 57. 
 
 V. Raynolds, 59. 
 Broome v. Galena, D., D. & M, 
 
 Packet Co., 283. 
 Brown v. Ayers, 209. 
 
 T Bissett, 159. 
 
 V. Brown, 378. 
 
 V. Collins, 46, 157. 
 
 V. CoUcus, 162. 
 
 V Davis, 54. 
 
 V, Dudley, 202, 212. 
 
 V. Gary, 340. 
 
 V. Gummersell. 350. 
 
 V. Hebard, 90, 93. 
 
 V. Moore, 317, 387. 
 
 V. Rldgway, 409. 
 
 V. Silsby, 139. 392. 
 
 V. Somervihe, 198, 208, 209. 
 
 V. Trippeny, 407. 
 
 V. Tweed, 391. 
 
 V. Union Ins. Co., 113. 
 
 V. Warren, 378, 379. 
 
 V. West, 94. 
 
 Bruce V. Cloutman, 279, 282. 
 Brummagim v. Boucher, 391. 
 Brumwell v. Stebbins, 155, 156. 
 Bryan v. Dean, 385. 
 
 V. Jjashley, 193. 
 Bryant v. Bank of California, 255, 
 280, 370. 
 
 V. Bigelow, 404. 
 
 V. FusseV 13. 
 
 V. Fember, 231. 
 Buchanan v. Alexander, 25, 26. 
 
 V. Hunt, 240. 
 Buchanan County Bank v. Cedar 
 Rapids, 1. F. & N. W. Ry. Co., 
 49, 57, 123. 
 Buckey v Phenicie, 409. 
 Buckham v. Wolf, 409. 
 Buckland v. Tonsmere, 84. 
 Buckley v. Wheeler, 96. 
 Buckman v. Buckman, 189. 
 Buck-Reiner Co. v. Beatty, 171, 
 
 188, 193. 
 Buffham v. Racine, 18. 
 Buford V. Welborn, 309. 
 Bulflnch V. Winchenbaeb, 157. 
 Bulkly V. Bckart, 18. 
 Bullard v. Hicks, 28, 398, 399. 
 
 V. Randall, 71, 188. 
 Bull V. L,oveland, 308. 
 Bunker v. Tufts, 202. 
 Burdseye v. Baker, 81. 
 Burger v. Burger, .57. 
 Burke v. Finley, 86. 
 
 V. Hancfi, 98, 145, 380. 
 
 V. Whitcomb, 118. 
 Burkett v. Bowen, 253, 327. 
 
 V. Holman, 3, 327. 
 Burleson v. Milan, 28. 
 Burlingame v. Bell, 188, 194. 
 Burlington & M. K. Ry. Co. v. 
 Chicago Lumber Co., 15. 
 355, 391. 
 
 V. Hall, 191, 386, 391, 392, 406. 
 
 v. Thompson, 15, 17, 49, lOO, 
 242, 243, 245. 
 Burnap v. Campbell, 209. 
 Burnell v. Weld, 159, 160. 
 Burnham v. Beal, 27, 57. 
 
CASES CITED. 
 
 [Tlie figures refer to sections.] 
 
 Biirnliam v. Doolittle, 154, 171, 
 247, 2.52, 25G. 
 V. Duun, 30i>. 
 V. Folsoni, 143. 
 V. Fond du Lac, IS. 
 V. Hoplilnson, 154. 
 Bnrrell v. Letson, 27, 14.5. 
 Burrows v. Dumphy, 12. 
 Burrus v. Moore, 2U4, 809, 311, 
 
 892. 
 Burt V. Parish, 270, 279. 
 
 V. Wayne Circuit Judge, 144, 
 195, 197, 204, 820. 
 Burton v. District Township of 
 W., 18, 23. 48. 215. 
 V. Wynne, 188. 
 Bushey v. Kaths, 407. 
 Bushman v. Hanna, 198. 
 Bushnell v. Allen, 184, 202, 214. 
 210, 253, 201, 267, 270, 272, 277, 
 279, 390. 
 Butler V. Clark. 91. 
 V. Mullen. 206. 
 
 V. Wendell, 6G, 81, 191, 195, 
 204, 310. 
 Kutman v. Hobbs, 315, 358. 
 Button V. Trader, 200, 214, 317, 
 
 888, 303. 
 Biixbaum & Co. v. Dunham, 120. 
 Byers v. Baker, 224, 288, 364. 
 Hyrn v. Blackman, 393. 
 
 
 
 Cabot V. Buruham, 235. 
 C^ady V. Comey, 31. 
 Cattlin V. Iowa City, 260, 273. 
 Cahill V. Bennett, 61. 
 
 v. Bigelow, 877. 
 Calioon V. Levy, 6, 188, 335, 388, 
 368. 
 V. Morgan, 67, 193, 270. 
 ('aignett v. Gilband, 155. 
 Cain V. Rockwell, 200. 
 Cairo & St. L. Ky. Co. v. Hind- 
 man Miehcvelis & Co., 123, 314, 
 404, 408. 
 
 Cairo & St. L. Ry. Co. v. Killen- 
 
 berg, 66, 314, 360, 372. 
 Caldwell v. Coates, 809. 
 
 V. Stewart, '.i. 4S, 125, 127. 
 
 V. Townsend, 385. 
 Calhoun v. Whittle, 144, 192. 
 Callagan v. Focasset Mfg. Co. 
 
 183. 
 Callahan v. Hallowell, 300. 
 Callender v. Furbish, .52, 175, 291. 
 Camden, City of, v. Allen, 379. 
 Cameron v. Fay, 98. 
 
 V. Stollen wreck, 212. 
 Camp V. Hatter, 337, 348. 
 Campbell v. Emerson, 145. 
 
 V. Hanney, 57, 187a. 
 
 V. Morris, 7. 
 
 V. Nesbitt, 127, 192. 
 
 V. Simpkins, 398. 
 Canaday v. Detrick, 129. 207. 
 Canal it Claiborne Sts. Ky. Co. v. 
 
 Hart, 223. 
 Canan v. Carryell, 816. 
 Candee v. Penniman. 154, 187. 
 
 V. Skinner, 139, 140. 
 
 V. Webster, 138. 139. 
 Capen v. Duggan, 49. 
 Capera v. Mignon, 189. 
 Capes V. Burgess, 9, 13, 148. 
 Capital City Bank v. Wakefield, 
 
 804. 370, 371, 396. 
 Caraker v. Mathews, 91. 
 Carbee v. Mason, 128. 
 Card V. Ahearne, 72. 
 Cardany v. New England Furni- 
 ture Co., 812. 
 ('arhart v. Ross, 886. 
 Cariker v. Anderson, 6, 278, 310, 
 
 395. 
 Carlyle v. Smith, 400. 
 Cai-penter v. McClure, 212, 342. 
 
 848, 345, 350, 351. 
 Carper v. Richards, 6, 213. 214. 
 
 215, 248, 252, 255, 285, 403. 
 Carr v. Fairbanks, 188. 
 
 V. Lee, 187. 
 
 V. Sevene, 342. 
 
 V. Waugh, 66. 
 
XXXll 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Carrlgan, The Olivia A., 46, 188, 
 
 190. 
 Carrington v. Eastman, 270. 
 Carrique v. Sidebottom, 291, 309. 
 Carroll v. McDonogh, 190. 
 
 V. Parkes, 406. 
 Carroll Co. Bank v. Goodall, 268, 
 279. 
 V. Milner, 892. 
 Carson v. Allen, 4^, 133. 
 
 V. Memphis & C. Ry. Co., 100, 
 104, 106. 
 Carter v. Bush, 164, 172, 175, 397. 
 V. Carter, 86. 
 
 V. Koshland: 6, 9, 193, 194, 
 257, 265, 270, 272, 316, 
 356, 393. 
 V. Nichols, 69. 
 V. Smith, 202. 
 
 V. Webster & W. Paper Co., 
 62, 63, 153. 
 Carthy v. Fenstmaker, 171. 
 Case V. Dewey, 52, 289, 312. 
 V. Moore, 385. 
 
 V. JN'oyes, 3, 6, 10, 46, 153, 293, 
 297, 352, 355, 357, 360. 
 Case Threahmg Mach. Co. v. Mir- 
 acle. 27. 49, 274. 
 Casey v. Davis, 57. 
 
 y. Dewey, 52, 289, 312. 
 Cassity v. Cota, 15. 
 Castner v. Styer. 229, 279. 316. 
 C. C. Kelly Banking Co. v. J. M. 
 
 Robinson-Norton Co., 265. 
 Central Bank v. Prentice, 52. 175. 
 Central Trust Co. v. Chattanooga 
 
 R. & C. Ry. Co., 27, 242, 270. 
 Central Flank Road Co. v. Gam- 
 mons, 43. 
 Central Vt. Ry. Co. v. Martin, 107. 
 Chadbourne v. Gilmore, 128. 
 Chaddocli v. Barry, 268. 
 Chattee v. Rutland Ry. Co., 375. 
 Chamberlain v, Watters, 18. 
 Chamberlin v. Gillman, 66, 349. 
 Chambers v. Yarnell, 396. 
 Chandler v. Warren, 391. 
 V. White, 93. 
 
 Chanuta v. Martin, 10, 13, 279, 
 
 280, 375. 
 Chapin v. Conn. R. Ry. Co., -57. 
 Chapman v. Gale, 376, 381. 
 
 V. Mears, 57, 266. 
 Chase v. Bradley, 303. 
 
 V. Foster, 326, 356, 382, 383, 
 
 384, 407. 
 V. Haughton, 128, 131. 
 V. Manhardt, 138, 139, 398. 
 V. North, 181. 
 V. Thompson, 58, 154. 
 Chatterton v. Watney, 192. 
 Cheairs v. Slayton, 202. 
 Chcaly v. Brewer, 19. 
 Cheatham v. Seawright, 175, 393, 
 399. 402. 
 V. Trotter, 313. 
 Chee\cr v. Meyer. 110. 
 Cheongwo v. .Jones, 198, 199, 208. 
 Cherry v. Hooper. 116. 
 Chesapeake Guano Co. v. Sparks, 
 
 171, 174 
 Chesapeake Ry. Co. v. Paine, 111, 
 
 339. 
 Chicago, B. & Q. Ry. Co. v. Moore, 
 104, 106, 202, 214, 246. 
 V. Painter, 37, 174. 
 Chicago, R. 1. & P. Ry. Co. v. 
 
 Mason, 298, 300, 369. 
 Chicago, St. L. & P. Ry. Co. v. 
 
 Meyer, 83, 85. 409. 
 Chicago <fe A. Ry. Co. v. Ragland, 
 
 83, 85, 92. 
 Chicago i& E. I. Ry. Co. v. Blag- 
 den, 183. 
 Chilcote V. Conley, 82, 84, 95. 
 Childress v. Dickens. 126, 313. 
 Childs V. Digby, 5, 53, 240. 
 Chisholni, In re. 27. 
 Christmas v. Riddle, 5, 109. 
 Church V. French, 235, 405. 
 V. Knox, 157-159. 
 V. Simpson, 46, 151, 314, 369. 
 Citizens' Bank v. Parwell, 188. 
 Citizens' State Bank v. Council 
 Bluffs Fuel Co., 53, 75, 76, 193. 
 
CASES CITED. 
 
 [The figures refer to sections.] 
 
 City of New Bedford, 5, 83, 95, 
 
 104, 147, 202. 
 Clafiin V. Iowa City, 260, 273. 
 Clagliorn v. Saussy, 91. 
 Clapp V. Hancocii Banli, 46, 126. 
 
 V. Kogers, 3S1. 
 
 V. Wallier, IS, 23. 
 Claris, Tiie B. E., 308. 
 ClarJi V. Averill, 82, 85. 
 
 V. Bofjgs, 27, 28. 
 
 V. Brewer, 60, 115. 
 
 V. Cbapman, 223, 273. 
 
 V. Connecticut Peat Co., 81. 
 
 V. I'"ew, 333, 344, 348. 
 
 V. Foxworttiy, 391. 
 
 V. Gardner, 343, 344. 
 
 V. Gresliam, 398. 
 
 V. King, 115, 129. 
 
 V. Marbourg, 199. 
 
 V. Mobile Scliool Cora'rs, 18. 
 
 V. Powell. 138. 
 
 V. Raymond, 148, 193. 
 
 V. Slii-ader, 47. 
 
 V. Viles, 164. 
 
 V, Wilson, 272. 
 
 V. Wiss, 66, 335. 
 Clarlje v. Farnum, 52, 154. 
 
 V. Gaither. 258. 
 
 V. Shaw, 27. 
 Clement v. Clement, 118. 
 Cleneay v. .Junction Ry. Co., 133. 
 Cleveland v. Clapp, 312, 315, 398. 
 Cleveland Co-op. Stove Co. v. Wil- 
 son, 52. 
 Clise V. Freeborn, 198, 199. 
 Clodfelter v. Cox, 66, 145. 146, 
 
 20.'5. 
 Closson V. Morrison, 56. 
 Clough V. Bucli:, 137, 226, 407. 
 Cliiett V. Rosenthall, 365, 366, 384. 
 Clymer v. \Villis, 27. 
 Coates V. Roberts, 202, 217. 219. 
 Coalfields Co. v. Peck, 114, 375. 
 Coble V. Nonemaker, 39. 
 Coburn v. Ansart, 47. 
 
 V. Currens, 208. 
 
 V. City of Hartford, 63. 
 Cochran v. Fitch, 202, 242. 
 
 LAW OAUNISH. — 
 
 Cockey v. Leister, 27. 
 
 Cockrill V. Mize, 357. 
 
 Coda V. Thompson, 6, 2.")8, 264, 
 267, 317, 364, 366, 384, 3S.3. 
 
 Coe V. Russell, 317. 
 
 Cott'man v. Ford, 361. 
 
 Cogswell V. Mitts, 40, 217. 
 
 Cohen v. Hale, 137a. 
 
 V. Supreme Sitting of the Or- 
 der of Iron Hall, 34S. 
 
 Cohn V. Tillman, 293, 297, 381, 
 395. 
 
 Cohnen v. Black, 29. 
 
 Coit V. Havens, 229. 
 
 Coke V. Brainforth, 39. 
 
 Colby T. Coates, 27. 
 
 Colcord \. Daggett, 132. 
 
 Cole V. Cunningham, 103. 
 V. Flitcraft, 202. 
 V. Safer, 181. 
 V. Wooster, 35, 188. 
 
 Coleman v. Darling, 4.j. 
 V. Scott, 46, 6^, 200. 
 
 Coleman's Appeal, 409. 
 
 Collins V. Friend, 385. 
 V. Jennings, 212. 
 V. Smith, 309, 310. 
 
 Columbia Turnpike Road v. Hay- 
 wood, 268. 
 
 Columbian Book Co. v. De Golyer, 
 27. 
 
 Columbus Ins. & Banking Co. v. 
 Hirsh. 49. 
 
 Colvin V. Rich, 206. 
 
 Combined Weighing & Advertis- 
 ing Mach. c;o.. In re, 192. 
 
 Commercial Nat. Bank v. Chicago. 
 M. & St. P. Ry. Co., 15, 60, 92, 
 242, 244, 245. 
 
 Commercial Fxch. Bank v. Mc- 
 Leod, 56. 
 
 Commissioners of .Jefferson Co. v. 
 Fox, 133. 
 
 Commissioners of Las Animas Co. 
 V. Bond, 18, 23. 
 
 Comstock V. Farnum, 115, 120, 
 129, 313. 
 
LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Comstock V. Paine, 291. 
 Uonant v. Burns, 398. 
 Couley V. Cliilcote, 49. 84, 1272. 
 Counoley v. Clieeseborougii, 83S. 
 Connnlly v. Tlmrber Wliyland 
 
 Co., 19, 27, 5ti. 
 Conner v. Allen. 310. 
 
 V. Hanover Ins. <Jo., 104. 197, 
 
 199, 201. 214, 242, 240. 
 V. Third National BanJi, 50, 
 .").'., 77, 151, 241, 249. 
 Conover v. Conover. 391. 39."!. 
 
 V. Euckman, 27. 28, 187. 
 Conshohockeu Tube Co. v. Iron 
 Car Eauipuient Co., 184, 301, 
 333. 
 Consumers' Ice Co. v. Cook Well 
 
 Co., 300. 
 Continental Ins. Co. v. Chase, 244. 
 Conway v. Ionia Circuit Judge, 
 251, .353, 3(14. 
 V. Remington, 27. 
 Cook V. Dillon, 188. 
 
 V. Field, 208, 210, 218, 220, 20]. 
 V. Holbrook, 36, 99. 
 V. Koss, 207. 
 Cookson V. Turner, 305, 382. 
 Coolpy V. Minnesota Transfer 
 
 Co., 37, 174, 180, 194. 
 Coombs V. Davis, 105, 107, 175, 
 
 317. 
 Cooney v. Cooney, 98. 
 Cooper v. McClun, 08, 203. 
 
 V. Reynolds. 233. 
 Copeland v. Manton, 40. 
 
 V. Weld, 104. 
 Coppel V. Smith, 143. 
 Corbin v. Goddard, 2S4, 353, 359, 
 
 389. 
 Curbitt V. Pynes, 408. 
 Corbyn v. Bollman. 27. 291. 
 Cordes v. KaufCman, 308. 
 Corey v. Gale, 2S3. 
 v. Powers, 40. 
 V. Webber, 132, 133. 
 Cornell v. I'ayne, 298, 299. 
 Corning v. Hoyt, 283. 
 
 Cornish v. Russell. 08, 313, 310, 
 
 348, 357, 398. 
 Cornwell v. llungate, 215, 219, 
 
 220. 
 Corserv. Craig, 70, 71. 
 Cota V. Mishow, 378. 
 Cotta V. O'Neal, 174. 
 Cottrell V. Varnum, 12G, 127, 187, 
 
 192. 
 Courie v. Goodwin, 84. 
 Courtney v. Carr, 39, 127. 
 Cousens v. Lovejoy, 5, 17, 192. 
 Coverly v. Biaynard, 203. 
 Coveit V. Nelson, 129, 207, 208. 
 Cowan V. Lowry, 404, 407. 
 Cowen V. St. Louis Perpetual Ins. 
 
 Co., 138. 
 Cowles V. Coe, 77. 
 Cox V. Bearden, 80, 91, 99. 
 V. Reeves. 57, 
 
 V. Russell, 48, 1.54, 159, 317, 
 378, 379, 393. 
 Cox ilanuf'g Co. v. August, 284, 
 
 338, 374. 
 Coykendall v. Ladd, 47, 75, 81, 174. 
 Crabb v. Jones, 144. 
 Craft v. Louisville & N. Ry. Co., 
 49, 84, 409. 
 V. Summersell, 153, 164. 
 Craig V. Gunn, 15, 17, 244. 
 Grain v. Gould, 176, 301, 312, 315, 
 
 380. 
 Cram v. Shackleton, 47, 349, 350. 
 Crane v. Freese, 28. 
 
 V. Stickles, 75, 369. 
 Cranz v. White, 99. 
 Crawford v. Barry, 369. 
 V. Carroll, 98. 
 V. Clute, 198, 199. 
 V. Slade, 198, 199, 200. 
 V. Stewart, 267. 
 Crayton v. Clark, 07, 200. 
 Creasap v. Bower. 403. 
 Creed v. Creed. 199. 
 Crerar v. Milwaukee & St. P. Ry. 
 
 Co., 3, 310. 
 Crescent Ins. Co. v. Baer, 157. 
 Crippen v. Fletcher, 12, 81, 364. 
 
CASES CITED. 
 
 XXXV 
 
 [The figures reffr to sections.] 
 
 -Crisp V. Ft. Wayne & E. Ky. Co., 
 0, 13, S3, S.J, <Jo. 1812, 184, 204, 
 213, 303, 304, 314, 315, 309, 403. 
 Crocker v. Baker. 307. 
 Crott V. Jliller, 400. 
 ■Crone v. Brann. 51, 202. 335, 398. 
 Cronin v. Foster. 15. 
 Crosby V. Hetlierington, 15. 
 •Cross V. Brown, 11, 12. 27. 44. 60, 
 00, 120, 138, 140, 153, 188, 
 180, 1!)0, 202, 245, 246, 
 .noi, 309, 335. 
 Y Haldeman, 206. 
 V. Spillman, 2, 3, 327, 3.50, 360. 
 374. 
 Crossnian v. Crossmau, 48, 303. 
 
 308, 376. 
 Crow V. Brown, 99. 
 Croxford v. Massachusetts Cot- 
 
 tou Hills, 397, 398, 401. 
 Crozier v. Shants, 07. 
 ■Crnett v. Jenkins, 132. 
 Cuctillu V. Union Ins. Co., 112. 
 Cullers V. City Bauk, 301. 
 Culver V. rarish, 127, 133, 134, 
 
 137, 205. 
 Cummings v. Garvin. 31. 
 
 V. Fearey, 77-79, 1.53, 340, 
 357, 375, 378. 
 Cumnjins v. Gray, 319. 
 (Amningham, In re, 27, 30, 33. 
 V. Baker, 50. 
 V. Hogan, 321, 324, 390. 
 Curling v. Hyde, 27. 
 Curran v. Fleming, 85. 
 Curry v. Woodward. 114, 248, 2.58, 
 
 2();!, 267, 408. 
 ■(;urtis V. Alvord, 48, 63. 
 V. Bradford, 233, 389. 
 v. Ford, 27. 34, 1.53. 265, 397. 
 V. Henrietta Nat. Bank, 248, 
 
 265. . 
 V. O'Brien, 86. 
 V. Kaynjond. 52, 175. 
 V. Steever, 6, 76, 110, 406.- 
 Cushing V. Laird, 289. 
 
 v. Quigley, 93. 
 ■Custer V. Steever, 75. 
 
 Custer V. White, 145. 
 Cutler V. Baker, 210. 
 Cutter V. I'erkins, 118, 190. 
 
 D 
 
 Daggett V. McClintock, 61, 174. 
 Dale V. Kimpton, 07. 
 Daley v Cunningham, 107. 
 Dallas, City of, v. Western Elec- 
 tric Co., 23, 321. 
 Dalton V. Dalton, 344, 
 Danaher v. Frentiss. 100, 3S6. 
 Danforth v. Carter, 407. 
 
 V. Panny, 17. 
 
 V. Kuport, 407. 
 Daniel v. Daniels, 381. 
 
 V. Hopper, 409. 
 
 V. Kawlings, 133. 
 Daniels v. Clark, 5, 48, 334, 335, 
 338, 384, 403. 
 
 V. Meinhard, 69, 188, 260. 
 Darling v. Andrews, 74. 
 Darnell v. Wood, 307. 
 Darrow v. Adams Exp. Co., 187. 
 Davenport v. Swan, 82. 
 Davidson v. Donovan, 273. 
 Davis V. Davis, .59, 119. 
 
 v. Drew, 27. 
 
 V. Fogg, 343. 
 
 V. Ham, 118. 
 
 V. Humphrey, 95, 183. 
 
 V. Knapp, 2^S9. 313. 
 
 V. ilahany, 0, 8, 28. 
 
 V. Mendeuhall, 357, 3(i3. 
 
 V. iSIontgomery Furnace & 
 Chemical Co., 112. 
 
 V. Oakford, 310. 
 
 V. Pawlette, 133, 313, 389. 
 
 V. Sharpleigh, 381. 
 
 V. Willey, 47. 
 
 V. Wilson, 10, 171. 
 Davis Lumber Co. v. First Nat. 
 Bank, 184, 303, 310, 336, 371, 
 400. 
 Dawkins v. Gault, 289. 
 Dawson v. Holecomb, 27. 
 
XXXVl 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Dawson v. Iron Range & H. B. 
 Ey. C3o., 46, 61, 157, 288, 
 315, 367, 369. 
 V. Marie, 807, 312, 359. 
 Dawson, In re, 18G, 317. 
 Day V. McQuillan, 159. 
 V. Vaupierre, 15. 
 V. Welles, 386. 
 V. Zimmerman, 133, 137. 
 Deacon v. Oliver, 167. 
 Dean v. Biggs, 112. 
 Deaver v. Keith, 117, 143. 
 De Blanc v. Webb, 292. 
 Debs V. Dalton, 215, 225, ;«r,. 387. 
 Dectaur, C. & N. O. Ry. Co. v. 
 
 Crass, 275, 288, 300, 307, 316, 
 
 388, 408. 
 Deerlng v. Kichardson-Kimball 
 
 Co., 164, 165, 351, 391, 406. 
 De Farges v. Ryland, 41. 
 De Gratt: v. Thompson, 55, 58. 
 
 151. 
 Delion V. Foster, 103. 
 Delaney v. ITartwig, 153, 368, 369. 
 Delacroix v. Hart, 3, 38, 41. 
 Demeritt v. Kstes. 381. 
 Denham v. Pogue, 133. 
 Dennie v. Hart, 137a. 
 Dennis v. Twitchell, 335, 
 Dennison v. Taylor, 2, 180, 225, 
 
 226. 
 Dennistoun v. New York C. «& S. 
 
 F. Co., 194. 
 Deno V. Thomas, 194, 215. 
 Denver, City of, v. Brown, 9, 18, 
 
 20. 
 Denver, T. & Ft. W. Ry. Co. v. 
 
 Smeeton, 72, 74, 98, 369. 
 Desha v. Baker, 213, 269, 277. 
 Des Moines, Cotton Mill Co. v. 
 
 Cooper, 46, 47, 57. 
 Des Moines, County of, v. Hink- 
 
 ley, 23, 53, 69. 
 Des Moines Sav. Bank v. Colfax 
 
 Hotel Co., 60, 153, 372. 
 Despin v. Crow, 144. 
 Detroit Post & Tribune Co. v. 
 
 Reiley, 150, 152. 
 
 Devries v. Buchanan, 288, 308. 
 
 V. Summit, 49. 
 Devoll v. Brownell, 291, 308. 
 Dew V. Bank of Alabama, 223, 
 
 225. 
 Dewey v. (Jarvey, 3, 25. 
 Dewing v. Weutworth, 27. 
 Dewit V. Baldwin, 373. 
 De Witt V. Kelly, 391, 393, 402. 
 Dickey v. Fox, 132. 
 Dickinson v. Clement, 186. 
 
 V. Dickinson, 116, 117, 120, 
 
 127. 
 V Strong, 164, 177. 
 Dickison v. Palmer, 33. 
 Dickson V. Morgan, 299. 
 Dieter v. Smith, 170, 360, 369. 
 Dietz v. Bignall, 348. 
 Dill V Wilbur, 334. 
 Dirlam v. Wenger, 220. 
 Dispatch Line v. Bellamy Manuf'g 
 
 Co., 5t), 150, 192. 
 Dittenhoefer v. Coeur d' Alene 
 
 Clothing Co., 17, 190, 270, 2r3, 
 
 374. 
 Divine v. Harvie, 26. 
 Dix V. Cobb, 4fj, 66. 
 Doane v. Doane, 97, 177. 
 Dobbins v. Hyde, 203. 
 
 V. Orange & A. Ry. Co., 26. 
 Dodd V. Brott, 144, 205, 209. 
 Dolby V. Tingley, 386, 407. 
 Dole V. Boutwell, 202, 208, 210, 
 
 215. 
 Dollman v. Moore, 18, 23, 24. 
 Dolsen v. Brown, 71. 
 Donald v. Nelson, 13, 44, 223, 256, 
 
 258, 267, 268, 332, 333, 339, 354. 
 Donnelly v. O'Connor, 84, 98, 313, 
 
 348. 349, 409. 
 Dore V. Dawson, 129, 134. 
 
 v. Dougherty, 75, 144, 146, 
 316. 
 Dorestan v. Krieg, 46, 188, 192. 
 Dorr's Adm. v. Rohr, 233, 275. 
 Dotterer v. Bowe, 18, 25. 
 Douglass V. Phenix Ins. Co., 17, 
 178, 214, 233, 242, 244. 
 
CASES CITED. 
 
 XXXVU 
 
 [The figures refer to sections.] 
 
 Uow V. Blake, 381. 
 ^Ltowdall V. Wisher, 44. 
 Uowllng V. Lancashire Ins. Co., 
 
 ()•-', 119. 
 i>owner v. Curtis, 128. 
 
 V. Topliff, 123. 
 Doyle V. Gray, 46, 01, 378. 
 Drake v. Buck, 288. 
 
 V. Harrison, 61, 220. 
 V. Jjake Shore ifc M. S. Ky. 
 Co., 00, 100, 101, 184, 240, 
 303, 309. 
 Drane v. McCavock, 27. 
 Dreiiuon v. Koss, 204. 
 Dressor v. McCord, 40, 05, 00 
 Dryclen v. Adams, 01, 379. 
 Dubois V. Dubois, 27. 
 Dudley V. Falkner, 40. 
 
 V. Goodrich, 319. 
 Dutt'ee V. Buchanan, 384. 
 Duke V. Rhode Island Locomotive 
 
 Works, 300. 
 Duncan v. Frank, 88. 
 
 v. Sangamo Fire Ins. Co., 310, 
 
 388, 409. 
 V, Ware, 215, 407. 
 Dunham v. Murphy, 302, 305, 383. 
 Dunlap V. Patterson Fire Ins. Co., 
 
 33. 
 Dunnegan v. Byers, 120. 
 Dunsinoor v. Furstent'eldt, 32, 33, 
 
 58. 
 Durant v. Staggers, 400. 
 Durllng V. Peck, 174. 
 Dutton V. Simmons, 200. 
 Dwlnel V. Stone, 123. 
 Dyer y. McHenry & Co., 378, 379, 
 380. 
 
 E 
 
 Kagon V. Luby, 73. 
 
 Karle v. Grove Circuit Judge, 30. 
 
 187. 
 Earley v. Kedwood City, 03. 
 liason V. Gester, 409. 
 Easley v. Glbbs, 348, 349. 
 Easterly v. Keney, 49, 59, 120. 
 
 East Line &c. R. R. Co. v. Terry, 
 
 369. 
 Eastman v. Thayer, 148. 
 Easton v. Lowery, 312, 337, 330. 
 East Tennessee, V. &, G. Ry. Co. 
 V. Kennedy, 00, 100, 1U4, 100, 
 242, 245. 
 Eberhart v. Gilchrist, 187. 
 E. B. Millar & Co. v. Flass, 70, 
 
 79. 357. 
 Echol's Appeal, 350. 
 Eckert v. McKee, 99. 
 Eddy v. Heath, 150. 
 
 v. O'Hara, 107, 183, 191, 192, 
 
 379. 
 
 V. Providence Mach. Co., 298, 
 
 307. 
 
 Edgarton v. Gan-etsou & Co., 391. 
 
 Edgerton v. Martin, 49, 65, 175. 
 
 Edler v. Hasche, 213, 220, 238, 
 
 204, 271, 301. 
 Edmonson v. De Kalb County, 3. 
 Edney v. Willis, 134, 205, 369. 
 Edson V. Sprout, 40. 
 
 V. Trask, 82. 
 Edwards v. Agricultural Ins. Co., 
 47. 
 V. Beugnot, 165. 
 v. Cosgro, 207, 235, 317, 334. 
 V. Delaplaine, 379. 
 V. Ivevinsohn. 204, 213, 333, 
 
 337, 339, 341. 
 V. McEnhlU, 205. 
 V. Mitchell, 08. 
 V. Peterson, 73. 
 V. Roepke, 44, 49, 63. 
 Egbert V. Hawk, 331, 354. 
 Egerton v. Third Municipality, 13. 
 Eichelburger v. Pittsburgh, C. & 
 
 St. L. Ky. Co., 100, 104, 108. 
 Filers v. Wood, 4011 
 Ellicot V. Smith, 261. 
 Elliot V. Hall, 99. 
 
 V. Sneed, 215, 407. 
 Ellis V. Goodnow, 45, 05, 123. 170, 
 
 372. 
 Ellison V. Tuttle, 48, 104, 288, 354. 
 Elser V. Rommel, 37, 106, 316, 354. 
 
LAW OP G4RRISHMENT. 
 
 [The figures refer to sections.] 
 
 Elston V. Gillis, 121). 
 Elwood V. Crowley, 29U, 307. 
 Emanuel v. Smitli, 294, 2'J5. 
 Embree v. Hanna, 102, 104, 195, 
 
 19S, 201, 242. 
 Emerson & Fisher Co. v. Mar- 
 shal, 82. 
 Emerson v. Cartridge, 128. 
 Emery v. Oavis, 204. 
 V. Lawrence, 74. 
 V. Koyal, 215, 385, 396. 
 V. Seavey, 175, 257. 
 Emil Kiewert Co. v. Hoyt, 283. 
 Emmons v. Dowe, 203, 204, 341. 
 V. Southern Bell Telephone ifc 
 Telegraph Co., 85, 95. 
 Empire Car Roofing Co. v. Macey, 
 226, 288, 298, 303, 354, 357, 370. 
 Engel V. Scheuerman, 103. 
 Enke v. Stine, 94. 
 Enniking v. Scholtz, 41. 
 Enos V. Tuttle, 8, 76, 133, 137, 
 
 203, 371, 372, 373. 
 Epstein v. Salorgne, 271. 
 Erickson v. Duluth, S. S. & A. Ry. 
 
 Co., 407. 
 Ei'ie V. Knapp, IS. 
 Erskine v. Saugston, 288. 
 
 V. Staley, 180, 188, 194. 
 Erwin v. Commercial & R. R. 
 Bank, 133. 
 V. Heath, 225, 385. 
 V. McKechnie, 402. 
 Estabrook v. Earle, .59. 
 Estate of Merac, Matter of, 35. 
 Estey V. Fuller Implement Co., 
 
 317. 
 Ettelsohn v. Fireman's Fund Ins. 
 Co., 5, 6, 8, 10, 178, 238, 251, 252, 
 253. 
 Evans v. Mohn, 38G. 
 
 V. Norman, 341, 350. 
 Everdell v. Sheboygan & Fond du 
 Lac Ry. Co., 12. 43, 144, 247, 
 250, 252, 283, 313, 383, 374. 
 Everett v. Connecticut Mut. Life 
 Ins. Co., 225, 242, 259. 
 V. Herrin, 35. 
 
 Everett v. Weitmsrelaud, .320, 3-2. 
 
 324, 409. 
 Everton v. Parker, 307, 317, 354,. 
 
 357, 364, 368. 
 Evitt V. Lowery Banking Co., 199,. 
 
 330. 
 Excelsior Steam Power Co. v. 
 
 Cosmopolitan Pub. Co., 372. 
 Exchange Bank v. Gulick, 354. 
 
 V. McLoon, 69. 
 Exchange Bank of Macon v. Free- 
 man, 226. 
 Ex parte Alston, 272. 
 Hurn, 56, 406. 
 Opdyke, 334. 
 Schalenburg, 14. 
 Eyerman v. Krieckhaus, 70. 
 
 F 
 
 Fairbanks v. Whitney, 45, 381. 
 Fairchild v. Lampson, 102, .344. 
 Fairfield v. McXany, 48, 28S. 
 Falconer v. Freeman, 187. 
 
 V. Head, 27, 409. 
 Falk V. Flint, 292. 
 Fall River I. W. Co. v. Croade, 68. 
 Fanning v. First Nat. Bank, 82, 
 80. 
 V. Minnesota Ry. Co., 403. 
 Farmer r. Simpson. 208. 
 
 V. Turner, 90, 99. 
 Farmers' Bank v. Beaston, 27. 
 191. 
 V. Gettinger, 380. 
 Farmers' Bank of Virginia v. 
 
 Brooke, 3(i7. 
 Farmers' Co-op. JIanufg Co. v. 
 Middle Georgia Manuf'g & Imp. 
 Co., 322. 
 Farmers' Nat. Gold Bank v. Wil- 
 son, 110. 
 Farmers' & Mechanics' Bank v. 
 Drury, 67, 131. 
 V. King, 57. 
 V. Welles, 53, 313. 
 
CASES CITED. 
 
 [The figures refer to sections.] 
 
 Farmers' & Jlcrcliiints' Bank v. 
 Knmklin Bank, 378, 379, 
 380. 
 V. Little, 3S1. 
 Farnesworth v. Pase, 381, 307. 
 Farrell v. Faruan, 347, 348. 
 
 V. Pearson, 49, 53, 125, 127, 
 192, 395. 
 Farrer v. Bates, 370. 
 Farrington v. Sexton, 2, 77, 81, 
 
 364, 370, 409. 
 Farwell v. Chambers, 8, 13, 1.54, 
 155, 157, 251. 
 V. Howard, 309. 
 V. Wilmarth, 175, 177. 
 Fasquelle v. Kennedy, 202, 208, 
 
 215, 395. 
 Faull V. Alaska Gold & Silver 
 
 Min. Co., 112. 
 Faulkner v. Waters, 118. 
 Faulks V. Heard, 354, 390, 408. 
 Faurote v. Carr, 99. 
 Fay v. Sears, 303. 
 V. Smith, 120. 
 Fearey v. Cummings, 13, 75, 70, 
 
 77, 81, 353, 35>, 303. 401. 
 Featherston v. Compton, 225, 230. 
 Fechheimer v. Hays, 2. 
 Felch V. Eau Plaiue Lumber Co., 
 
 40, 57. 
 Fellows y. Smith, 127. 
 Fenton v. Block, 40. 
 
 V, Fisher, 27. 
 Ferguson v. Kansas City Bank, 
 199. 
 V. Crawford, 228. 
 V. Hillman, 393. 
 Ferris' y. Ferris, 2, 6, 13. 
 Fidelity Insurance, Trust & Safe 
 Deposit Co. V. Shenandoah Val. 
 Ry. Co., 57. 
 Field V. Crawford, 58. 
 V. Haines, 13. 
 V. Jones, 27. 
 V. Malone, 157, 253, 261, 284, 
 
 309, 409. 
 V. Shoop, 307. 
 V. Watkins, 379. 
 
 Fifleld V. Wood, 48, 310. 380, 388. 
 Finlen v. Howard, 82. 
 Fiunigan v. Floeck, 170. 
 Firebaugh v. Stone, 377. 
 Firmstone v. Mack, 86. 
 First Baptist Church of Chicago 
 
 V. Hyde, 371. 
 First Xat. Bank v. Brainerd, 12(1, 
 • 177, 188. 
 
 V. Bright, 303, .•J4S, 
 
 V. Burch 17, 100, 24-', 27;!, 310. 
 
 V. Davenport Ity. Co.. 43, 52, 
 54, 192. 
 
 V. Dubuque & S. W. Ky. Co., 
 70. 
 
 V. Dunn, 3, 230. 258. 
 
 V. First Nat. Bank, 258. 
 
 V. Gaudy, 47. 
 
 V. Graham, 89, 2.50. 2.53, 30:). 
 
 V. Knowles, 75, 153. 
 
 V. Leppel, 4!), 257, 330. 
 
 V. Mellen, 203, 333, 334, 351, 
 390. 401, 400. 
 
 V, Ottawa, 18, 23. 
 
 V. Perry, 175, 309. 
 
 V. Portland & O. Ry. Co., 29, 
 34. 
 
 V. Robertson, 200, 312. 
 
 V. Turner, 192, 273, 387. 
 
 V. Van Brocklin, 00. 
 
 V. Van Ness. 137. 
 Fischer v. Dandistal, 26, 320. 
 Fish V. Field, 151. 
 
 V. Keeney, 345. 
 Fisher v. Consequa, 6, 8. 
 
 V. Hall, 183. 
 
 V. Hervey, 11. 
 
 V. President, etc., of Essex 
 Bank, 110. 
 
 V. Taylor, .59. 
 Fisk V. Herrick, 157. 
 
 V. Weston, 204. 
 Fitch V. Brower. 133, 187, 244, 331. 
 
 V. Manhattan Fire Ins. Co., 
 354. 
 
 V. Ross, 381. 
 
 V. Waitr-. 8, 49, l(i:!. 
 Fitehett v. Dolbee, 35. 
 
xl 
 
 I-A.W OF GARNISHMENT. 
 
 [Tlie figures refer to sections.] 
 
 Fitbian v. New York ir E. Ry. 
 
 CO., IT, 144, 146, 242, 245. 
 Fitzserald v. Caldwell, 138, 139, 
 198. 
 
 V. Hollingswortli, 4G,'6]. 
 Fltzsimmons v. Carroll, 409. 
 Flagg V. Piatt, 7, 272, 310. 
 Flandrow, In re Claims of, 31, 
 
 1(J7. 
 Flanegan v. Earntst, 309, 387. 
 Fleming v. Baxter, 49, 31."'), 309. 
 Fletcher v. Fletcher, 104. 
 
 V. Pillsbury, 183. 
 
 V. Staples, 98. 
 
 V. Wear, 208. 
 Flin,j V. Goodall, lO.j. 
 Flournoy v. Rutledge, 260, 207. 
 Flower v. Parker, 208. 
 Focke V. Blum, 188, 193, 194. 
 Fogg V. Worster, 31.j. 
 Fogleman v. Shively, 102. 
 Fogler V. Marston, 3, 40. 
 P^olkerts v. Standish, 0, 8, 13, ."12, 
 
 70, 77. 81, 17.J. 
 Folsom V. Haskell, :V), 58. 
 Folschow V. Werner, 99. 
 Ford V. Detroit Dry Dock Co., 0, 
 8, 13, 155, 409. 
 
 V. Hurd, 213. 
 Forrest v. Price, 25, 187. 
 Fort Madison Lumber Co. v. Ba- 
 
 tavian Bank, 110. 
 Fortune v. Bank, 408. 
 
 V. St. Louis, 18. 
 Foster v. Dudley, 143, 1.50. 
 
 V. Haynes, 374. 
 
 ^ . Jones, 143, 202. 
 
 V. Markland, 208. 
 
 V. Mix, 67. 
 
 V. Potter, 110. 
 
 V. Singer, 46, 49, 03, 118. 
 
 V. Sinkler, 332, 335, 
 
 V. White, 206. 
 
 V. AViley, 208. 
 Fountain v. Smith, 393. 
 Fourth Nat. Bank of Cincinnali 
 
 V. Mayer, 70, 395. 
 Fowler V. Doyle, 127, 213. 
 
 Fowler V. McLelland, 27. 
 V. Railway Co., 42. 
 V. Williamson, 311, 357, .371. 
 
 Fox y. Reed, 371. 
 
 Foy V. East Dallas Bank, 233, 330, 
 333. 
 
 Frank v. Frank, 315. 
 
 Franklin Fire Ins. Co. v. West, 
 49. 
 
 Franklin v. Ward, 144. 
 
 Frederick v. Easton, 398. 
 
 Freeman v. Alderson, 233. 
 V. Exchange Bank, 70. 
 V. Miller, 386. 
 
 Freemont Cultivator Co. v. Ful- 
 ton, 253. 
 
 Freer v. ^^'hite, 250, 253. 
 
 Freese v. Co-operative Coal Co., 
 ;J57, 358, 371. 
 
 Freiberg v. Singer, 11. 
 
 Freidenrich v. Moore, 388. 
 
 French v. Rogers, 162. 
 
 Friend v. Garcelon, 99. 
 
 Frisk V. Reigelman, 80, 224, 274, 
 275. 
 
 Frizzell v. Willard, 201, 363. 
 
 Frothingham v. Haley, 118. 
 
 Frutchey v. Lutz, 94. 
 
 Ft. JIadison Lumber Co. v. Ba- 
 tavian Bank, 110. 
 
 Fuller V. Foote, 48, 140, 242, 274. 
 V. .Tewett, 164, 167. 
 V. O'Brien, 116, 117. 
 V. Rhodes, 174. 
 
 Fulweiler v. Hughes, 126. 
 
 Funkhouser v. How, 132, 203. 
 
 Furstenheim v. Adams, 400. 
 
 G 
 
 Gaffney v. Bradford, 133, 1.35. 
 Gage V. Chesebro, 46, 48. 79, 81, 
 378. 
 V. Maschmeyer, 5, 268, 271. 
 Gager v. Watson. 144, 174, 187, 
 
 197. 
 Gaither v. Ballew, 33. 
 
CASES CITED. 
 
 xli 
 
 [The figures refer lo sections.] 
 
 Gaines v. Beirne, 288, 381, 385, 
 
 408. 
 Galena & C. U. Ry. Co. v. Men- 
 
 zies, 48, 174. 
 Galena & S. W. Ry. Co. v. Stabl, 
 
 44. 
 Gamble v. Central Railroad & 
 
 BankiuK Co., 152. 
 Gandy's Adm'r v. Hammond, 348. 
 Ganebin v. Pbelan, 273. 
 Gann v. Cribbs. 18. 
 Garity v. Gigie, 188. 
 Garland v. McKittrick, 2. 236, 258, 
 270, 320, 328. 
 V. Sperling, 6, 45, 49, 50, 61, 
 03, 118, 154, 2.55, 27U. 
 Garretson v. Kane, 70. 
 Garrott v. .Taftrey, 132. 
 Gary v. Brown, 173, 175. 
 Gassett v. Grout, 27. 
 Gatchell v. Chase, 151. 
 V. Foster, 133, 3915. 
 Gates V. Kerbey, 203. 
 
 V. Tusten, 238, 271, 279. 
 Gause v. Cone, 8, 13, 45. 49. 
 Gayoso Savings In.st. v. Fellows, 
 
 00. ■ 
 Geary v. Sheperd, 28. 
 Gee V. Cumming, 376. 
 
 Y. Warwick, 291, 370. 
 Gemberg v. Treusch, 79. 
 Gemberling v. Spaulding, 194, 
 
 195. 
 Georgia Insurance & Trust Co. y. 
 
 Oliver, 139. 
 Gerhard Hardware Co. v. Texas 
 
 Cotton Press Co., 300, 307. 
 German-American Bank v. But- 
 ler-Mueller Co., 10, 284, 374. 
 German- American Ins. Co. v. 
 
 Chippewa Circuit Judge, 273. 
 
 German Bank v. American Fire 
 
 Ins. Co., 201, 330. 
 
 V. Himpsted. 49. 
 
 German Nat. Bank v. National 
 
 State Bank, 200. 
 Germauia Sav. Bank v. Peuser, 
 
 185, 317, 344, 347, 403. 
 
 Gerry v. Gen-y, 272, 292, 290, 397. 
 
 V. Kemick, 45, 05. 
 Gery v. Ehrgood, 85, 98. 
 Getchell v. Chase, 137a. 
 
 v. Maney, 74. 
 Ghio V. Western Assur. Co., 01. 
 Gibbon v. Bryan, 0, 238. 
 Gibbons v. Cherry, 382, 3S5. 
 Gibson v. Cohen, 202. 
 
 V. Cooke, 09. 
 
 V. National Park Bank, 55, 77, 
 154, 183, 192. 
 Giddens v. Williamson, 12. 
 Gidding's Appeal, 409. 
 
 V. Coleman, 204, 312, 315, 332. 
 Gies V Bechtner, 49, 110, 120. 
 Gifford V. Rockett, 343, 351, 406. 
 Gilbert v. Lynch, 27. 
 
 V. Quiuiby, 20. 
 Gilcreest v. Savage, 13. 
 Gildersleeve v. Caraway, 215. 
 Giles V. Hicks, 387, 391. 
 Gilkeson v. Knight, 253. 
 Gill V. Middleton, 27. 
 Gillam v. Huber. 133. 
 Gillette v. Cooper, 49, 165. 
 Gillilan v. Nixon, 395. 
 Gilman v. Ketcham. 66, 81. 
 Gilmore v. Miami Bank, 180, 395. 
 Girard Fire lus. Co. v. Field, 119, 
 
 123, 149. 
 Givens v. Taylor, 354, 309. 
 Glauton v. Griggs, 120. 
 Gleasnn v. South Milwaukee Nat. 
 
 Bank, 52. 
 Gleu Iron Works, In re, 114. 15'!. 
 Glenn v. Boston & S. Glass Co.. 
 
 49, .53. 
 Globe Milling Co. v. Boynten, 189, 
 
 192, 282. 
 Goddard v. Bridgman, 175, 370. 
 
 v. Collins, 401. 
 
 V. Guittar, 70. , 
 Godden v. Pierson, 289. 
 Godding v. Pierce, 187. 
 Godfrey v. McComber, 62. 
 Gold V. Housatonic Ry. Co., 17. 
 Goll V. Hubbell. 248, 249, 253, 203. 
 
xlii 
 
 LAW OF GARNISHMENT. 
 
 [The flgui-es Mier to sections.] 
 
 Golsan v. Powell, 205. 
 
 Gomila v. Milliken, 188, 270, 379. 
 
 Goode V. Barr, 46. . 
 
 V. Holcome, 388. 
 Goodell V. Williams, 370. 
 Goodman v. Meriden Britannia 
 
 Co., 124. 
 (Joodrich v. Hopkins, 201 i, 307. 
 Goodwin v. Brooks, 342. 
 Gordin v. Moore, 369. 
 Gore V. Clisby, 104, 177. 
 Gorman v. Swaggerty, 3. 
 Goucli V. Tolman, 313. 
 Gould V. Meyer, 2.")S, 267, 4)8. 
 Goulding v. Hail, 308, 383. 
 Gowan v. Hanson, 13, 233. 
 (rracy v. Coates, 398. 
 Graham v. Chappell, 190, 381, 383. 
 
 V. Endicott, 127. 
 
 V. Moore, 151. 
 
 V. O'Xeil, 190, 381, 383. 
 Graighle v. Notnaghle, 39. 
 Grand Island Banking Oo. v. Cos- 
 
 tello, 188, 194. 
 Granite Nat. Bank v. Xeal, 57. 
 Gra'nt v. ,Shaw, 52. 118. 
 Graves \. Cooper, 360, 367, 382. 
 
 V. Scverens, 2, 13. 
 
 V. Walker, 301, 312, 315. 
 Gray v. Badgett, 379. 
 
 Y. Henby, 144. 
 Grayson v. Veeche, 30. 
 Green v. Farmers' & Citizens' 
 Bank, 15, 17. 
 
 V Gillett, 128. 
 
 V. Nelson, 379. 
 
 V. Van Buskirk, 00. 
 Greene v. Tripp, 232, 250, 254. 
 
 374. 
 Greene & Button Co. v. Reming- 
 ton, 08, 81. 
 Greengard v. Fretz, 321. 
 Greenman v. Pox, 127. 
 Greonrree v. Rosenstoek, 66, 206. 
 Greenwood v. Rector, 145. 
 (4reer v. Powell, 133. 
 Gregg V. Nelson. 54. 
 Gregory y. Higgius, 133. 
 
 Greil v. Loftin, 3. 
 
 Grever y. Culver, 77, 313, 380. 
 
 Gridley v. Harraden, 143. 
 
 Griffin V. Potter, 144, 197, 209, 
 
 316, 317. 
 Griffith V. Langdale, 103. 
 Griggs V. Docter, 103. 
 Grissom v. Reynolds, 200. 
 Griswold v. Popham, 388. 
 Groome v. Lewis, 34, 409. 
 Groschke v. Bardenheimer, .'357. 
 Grosslight v. Crissup, 144, 195, 
 
 19G, 198, 318, 320. 
 Grosvenor v. Farmers' & Jlechan- 
 
 ics' Bank, 49, 163. 
 Groves v. Brown, 212. 
 Guild v. Holbrook, 118, 104. 
 Guiltord v. Reeves, 188, 190, 319, 
 
 321, 324. 
 Guillander v. Howell, 81. 
 Gumberg v. Treusch, 76, 79. 
 Gunu V. Howell, 202, 213, 214. 
 
 246, 408. 
 Gunzberg v. Kent Circuit Judge, 
 
 144. 
 Guptill V. Ayer, 354, 381. 
 Gutterson v. Morse, 52, 70.. 
 
 H 
 
 Haas V. Old Nat. Bank, GO, 70, 
 
 33,5. 
 Hacker v. Stevens, 193. 
 Hackley v. Kanitz, 181. 
 Haefer v. Mullison, 99. 
 Hager v. Adams, 103. 
 Hagerman v. Tong Lee, 400. 
 Haines v. O'Connor, 235. 
 Hair v. Lowe, 386. 
 Haksey v. Whitney, 68. 
 Hale V. Chandler, 189. 
 
 V. Foley, 57. 
 Haley V. Hannibal & St. J. Ry. 
 
 Co., 273, 277. 278. 
 Hall V. Bowker, 6, 131. 
 
 V. Fiber Manuf'g Co., 52. 
 
 V. liartwell, 93. 
 
CASES CITED. 
 
 xliii 
 
 [The figures refer to sections.] 
 
 Hall V. Harvey, 381. 
 
 V Page. 174 
 Hallowell \'. Leafgreen, 46. 
 Halsey v. Fairbanks, 68. 
 Ham V Beery, 395 
 Bamberger v. Marcus, 89, 91, 314. 
 Hamill v. Cbamplin, 29.;. 390. 
 Hamilton Buggy Co. v. Iowa Bug- 
 gy Co., 2S1, 283, 348. 
 Hami.ton v. Hi 1, 313, 36S>. 
 
 V. Rogers, (i. 48, 49, 60, 275. 
 Hanaford v. Hawkins, 104, 204, 
 
 335, 339, 383. 
 Hancock v. Colyer, 49, 118, 164. 
 Handley v. Pflster, 66. 
 Hanna v. Bry, 107. 
 Hannali v. Moberly Bank, 112. 
 Hannibal & St. J. Ry. Go. V. 
 Crane, 0, 8, 17, 60, 244, 245, 307, 
 398. 
 Hauselman v. Kegel, 0, 8, 95. 
 Hanson v. Butler, 27, 400. 
 
 V. Davis, 102. 
 Hardesty v. Campbell, 28. 
 Harding v. Harding, 189. 
 Hardy v. Hunt, 204. 205. 
 Hargis v. East Tennessee, V. & 
 
 G. Ry. Co., 273, 27S. 
 Harlan v. Moriarty, 160. 
 Harmon v. Birchard, 213, 219, 
 220, 223. 
 
 V. Harwood, 235, 387. 
 
 V. Osgood, 13, 47, 70. 
 Harrell v. Mexico Cattle Co., Ill, 
 188. 193, 26:), 271, 273, 277. 
 
 V. Whitman, 1.53. 154. 
 Harrier v. Fassett, 97. 
 Harrington v. Hill, 31. 
 
 V. La Rocque, 35. 
 
 v. Meadors, 884. 
 Harris r. Aiken, 301, 312. 
 
 V. Hutcheson, 45, 49, 381. 
 
 V. Miller, 1.54. 
 
 V. Phcenix Ins. Co., 3, 46. 
 Harrison v. Trader, 407. 
 Harston v. Carr. 104. 
 Hart V. Anthony 15. 
 
 Hart V. Dahlgreen, 312. 
 
 V. Rafter, 80, 348. 
 Hartford Quarry Co. v. Pendle- 
 ton, 319. 
 Hartle v. Long, 11, 31. 
 Hartley v. Tapley, 74. 
 Hartman v. Olivera, 57, 317, 3.54. 
 Harvey v. Gt. Northern Ry. Co., 
 5. 00, 199, 200, 201, 245. 
 v. Mix, 81. 
 Harwell v. Sharp, 102, 103. 
 Haselton v. Monroe, 198. 
 Haskell v. Haskell. .59. 
 Haskill V. Andros, 92. 
 Hassle v. God Is \\'ith Us Congre- 
 gation, 63, 1,53, 1,54. 
 Hatch V. Spofford, 201. 
 Hathaway v, Russell, 262, 379. 
 Haven v. Low, 170. 
 
 V Wentworth, 118. 
 Hawes v. Langton, 303, 304. 
 y. Jlooney, 70, 193, 378. 
 v. Waltham, 157, 102. 
 Hawkins v. Georgia Nat. Bank. 
 142. 
 V. Graham, 397. 
 V. Pearce, 92. 
 Hawks V. Sawyer, 173. 
 Hawley v. Atherton, 210, 261, 309. 
 Hawthorn v. St. Louis, 18. 
 
 V. Unthank. 174, 175, 303. 
 Hayden v. National Bank of 
 
 State of New York, 257. 
 Haydock Carriage Co. v. Pier. 
 
 7", 398. 
 Hayes v. Stewart, 406. 
 Haynes v. Thompson, 74. 93, 348. 
 Hays V. Lycoming Fire Ins. Co., 
 
 112. 
 Hayward v. Clark, 99. 
 Hazeu v. Emerson. 177, 376. 
 Hazetine v. Page, 377. 
 Head v. Merrill, 300. 
 Healey v Butler, 4:;, 76. 224, 231, 
 
 232 278, 378. 
 Hearn v. A damson, 2(!4, 295, 494. 
 V. Crutcher, 35, 48. 
 
xliv 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Hebel v. Amazon Ins. Co., 6, 182, 
 213, 215, 238, 268, 2U9, 271, 273, 
 277, 278. 
 Hecht V. Green, 66, 79. 
 Heebner v. Chave, 90, 91. 
 Heinoman v. ScWoss, 11, 76. 
 Hemphill v. Yerlies, 137a. 
 Hemmenway v. Pratt, 350. 
 Henderson v. Cashman, 159. 
 
 V. Nott, 90, 91. 
 Hennessey v. Farrell, 63, 299. 
 Henny Buggy Co. v. Patt, 79, 226, 
 
 357. 358, 368, 370. 
 Henry v, Bew, 44, 288, 373. 
 V. Bryce 384. 
 V. Gold Park Slin. Co., 145, 
 
 318. 
 V. Murphey, 70. 
 V. Wilson, 48. 
 Henwood v. American Legion of 
 
 Honor, 307. 
 Hepburn's Case, 7. 
 Herbert v. Bronson, 73. 
 Heritage v. Armstrong, 2, 6, 226, 
 
 286, 316. 
 Herrlich v. Kaufmann, 6, 7, 3.j4. 
 Herlow v. Orman, 199, 200. 
 Hess V. Shorb, 383. 
 Hewett V. Allen, 92, 97. 
 Hewitt V. Follett. 180, 202, 212, 
 328, 343, 344, 345, 347, 350, 
 351. 
 V. Wagar Lumber Co., 13, 16, 
 48, 79, 314, 315, 335, 369. 
 V. Wheeler, 57, 2B0. 
 Hey ward \. Phillips-ButtofC Man- 
 uf'g Co., 3, 6, 207, 318, 319, 330, 
 334, 335, 341, 342, 348. 
 Hibbard v Clark, 379. 
 
 V. I<:verett, 314. 
 Hibernia Savings & Loan Soc. v. 
 Superior Court of Inyo Co., 202 
 387. 
 Hicks V Chapman, 27. 
 V. Gleason, 7, 199. 
 Hightower v. Slaton, 18. 
 Hill V. Beach, 159. 
 V. Bowman, 150. 
 
 Hill V. Kroft, 133. 
 
 V. La Crosse & M. Ry. Co., 27. 
 V. Loomis, 92. 
 V. Smith, 398, 400. 
 Himrod v. Bough, 205. 
 Himpsted v. German Bank, 49, 
 
 77. 
 Hinkle v. Currin, 376. 
 Hinkley v. St. Anthony Palls Wa- 
 ter Power Co., 254, 255, 
 256. 2.58, 267, 270, 272, 
 273, 278, 283, 285, 314, 
 409. 
 V. Williams, 59, 
 Hinsdill v. Saflord, 131, 13!. 
 Hirth V. Pfeifle, 216, 261, 301. 
 Hitchcock V. Egerton, 167. 
 
 V. Galveston Wharf Co., 13. 
 
 47, 301, 376. 
 V. Lancto, 331. 378. 
 p. Miller, 49, 215, 
 V. Watson, 313, 392. 395, 395. 
 Hite V. Fisher, 269. 
 Hitt V. Lacey. 144, 202. 
 Hoag V Hoag, 39. 
 Hoagland v. Wilcox, 237. 
 Hoar V. Marshall, 31, 
 Hobart v. Jouvett, 173. 
 Hobson V. Kelly, 72, 307, 314, a37, 
 
 363. 
 Hodson V. McConnel, 144, 403 
 
 404. 
 Hoffman v. Fitzwilliams, 95, 183. 
 V. Simon. 388, 392. 
 V. Witherell, 31, 174, 
 Hogan V. .Jackson, .51. 
 Ho.,;shead v. Carruth, 316. 
 Ho King, In re, 91. 
 Holbrook v. Baker, 170. 
 V. Payne, 09, 72. 
 v. Waters, 31, 397, 398, 401. 
 Holcomb V. Town of Winchester 
 
 1.50, 1.52. 
 Holdship V. Patterson, 59, 
 Holland v. Leslie, 16. 
 
 V. Mobile & O. Ry. Co., 17, 
 273 
 XioUiugsworth v. Fitzgerald, 391. 
 
CASES CITED. 
 
 xlv 
 
 [The figures refer to sections.] 
 
 Holman v. Fisber, 31. 
 Holmes T. Clark, 331. 
 
 V. Remsen, 107, 191, 192, 202, 
 214, 220, 212. 
 Holt V. Babcocli, 67. 
 
 V. Kirby, 143, 397, 398, 401. 
 Holton V. South Pac. Ry. Co., 288. 
 Homans v. Coombe, 386. 
 Home Mutual Ins. Co. v. Gam- 
 ble. 192. 
 Homestead v. Loomis, 13. 
 Hoobaugh's Appeal, 49. 
 Hooks V. York, 27. 
 Hooper v. Benson, 192. 
 
 V. Hills, 76. 
 Hoops V. Culbertson, 315. 
 Hopkins v. Ray, 164. 
 Hopson V. Dinan, 49. 
 Horat y. Jackel, 250, 387, 388. 
 Ho;n V. Booth, 348. 
 Home V. Stevens, 69. 
 Horton v. Grant, 206. 
 Hosley v. Scott, 206, 301. 
 Houghton V. Lee, 98. 
 Housemans v. Heilbron, 385. 
 Houston V. Nowland, 68. 
 
 V. Porter, 264. 
 
 V. Walcott, 226, 270, 396, 409. 
 
 V. Wolcott, 191, 386. 
 Hovey v. Crane, 310, 311. 
 How V. Feild, 177. 
 Ho\vard v. Crawford, 270. 
 
 V. Tandy, 98. 
 Howard Harrison Iron Co. v. Till- 
 man, 57. 
 Howe V. Hartness, 133. 
 
 V. Hyer, 48, 371, 378, 380. 
 
 V. .Tones, 174, 205, 317, SSQ 
 334. 
 
 V. Ould, 133. 
 
 y. Starkweather, 108. 
 
 V. Tefft, 171, 195. 
 
 V. Union Ins. Co., 45. 
 
 V. White, 268. 
 Howell V. Fremam, 143. 
 
 V. McDowell, 89. 
 Howland y. Jeuel, 252, 267, 270. 
 
 V. Spencer, 164. 
 
 Hoyt V. Christie, 260. 
 
 V. Robinson, 272. 
 
 y. Sprague, 397. 
 
 y. Swift. I."i4. 
 Hubbard y. Williams, 133. 
 Hudson y. Hunt, 170, 261. 
 
 y. iJeConnel, 66, 153, 403, 404. 
 Hueskamp v. Van Leuyen, 386. 
 HufC y. Mills, 133, 144, 146. 
 Huffman Imp. Co. v. Templeton, 
 
 27. 
 Hugg V. Booth, 148. 
 Hugh V. Curtis, 92. 
 Hughes y. Ft. Dearborn Nat. Bk., 
 230, 258. , 
 
 v. Monty, 192, 365, 382. 
 
 V. Oregonian Ry. Co., 112. 
 Hull y. Blake, 128, 202, 205, 207, 
 
 208, 214, 215. 
 Hulley y. Chedic, 193. 
 Humphrey v. Barns, 219. 
 
 V. O'Uonnell, 183, 372. 
 
 y. Warren, 291. 
 Humphreys v. Atlantic Jlilling 
 
 Co., !>3, 75. 
 Hunds y. Winn, 95. 
 Hunsaker v. Borden, 25. 
 Hunt y. Miles. 397. 
 
 V. Stevens, 27. 
 Hunter v. Case, 177. 
 Huntington v. Risdon, 46. 
 Huntley v. Stono, 57. 
 Huntoon v. Dow, 55, 75. 
 Huntress v. Burbank, 140. 
 Hurd. In Matter of, 27. 
 Hurlburt v. Hicks, 28, 403. 
 Hurn, Ex parte, 56, 406. 
 Hurst v. Home Protection Fire 
 
 Ins. Co., 62, 117, 123, 313, 3J3. 
 Huskill v. Johnson, 261. 
 Huskins v. Hanlon, 97. 
 Hutchins v. Evans, 131. 133. 
 Hutchinson's Appeal, 266. 
 Hutchinson y. Dubois, 158. 
 
 y. Eddy. 216. 220, 261. 
 
 y. Gormley, 91. 
 
 v. Trauerman, 3, 253, 284. 
 Hynds y. Wynn, 95. 
 
xlvi 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Ide Y. Harvvood, 49, 51, 167, 108. 
 Iglehart v. Moore, 133. 
 Ilifif V. Arnott, 84, 396, 409. 
 Illinois Cent. Ky. Co. v. Brooks. 
 226, 265, 208, 316. 
 V. Cobb, 37, 307, 313. 
 V. Smith, 15, 104, 107, 178, 
 
 214, 242, 243. 
 V Weaver, 13, 402. 
 llsley y. Nichols, 56. 
 Impei'ial Fire Ins. Go. v. Gun- 
 ning, 1!!U, 3il."i. 
 V. Shinier, 353, 3.j5. 
 Indianapolis Bank v. Armstrong, 
 
 173, 183. 
 Ingles V. Dennett, 379. 
 Ingraham v. Olcock, 263. 
 Insurance Co. of North America 
 V. Friedman, 202, 232, 200, 209, 
 271, 277. 
 Ireland v. Globe Milling & Reduc- 
 tion Co., 100. 
 Iron Clitts Co. v. Lahais, 2, 6, 8, 
 10. 13, 224, 231, 275, 316, 375, 
 384, 388. 
 Irvin V. Pittsburg Ey. Co., 138. 
 Irvine v. Lumbermen's Bank, 198, 
 
 199. 
 Irwiu V. Dean, 273, 379. 
 Irwin V. McKechnie, 27, 34, 123, 
 
 193, 402. 
 Isabelle v. Iron Cliffs Co,, 2, 181, 
 
 224, 231, 233. 275. 308, 372. 
 Iselin v. Simon. 344, .■J75. 
 Ives v. Addison, 00. 1-14. 
 y. Vauscoyoc, 154. 
 
 -lackson v. Leelana^y Circuit 
 Judge, 898. 
 v. Lloyd, 138. 
 V. Miller, 27. 
 v. Shipmuu, 250, 259. 
 
 Jackson v. St. Louis & S. F. Ry. 
 
 Co., 396, 397. 
 Jackson's Appeal, 7, 321. 
 Jacobs y. Hogan, 189. 
 James v. Fellowes, 370. 
 y. Jenkins, 250, 277. 
 Jaquette v. Palmer, 35. 
 Jardain v. Fairton Saving Fund 
 
 & Building Ass'n, 20, 99. 
 Jarvis v. Alitchell. 202, 280, 319, 
 
 374, 391, 392, 395, 308, 407. 
 Jaseph v. People's Sav. Bank, 75, 
 
 76, 357. 
 Jason V. Antone, 90. 
 Jemison v. Scarborough, 8. 
 Jenks V. Dyer, 90. 
 
 V. Osceola Tp., 20, 23. 
 Jenuess v. AMiarff, 70, 153, .349. 
 Jennings v. Summers, 116. 
 Jepson V. International Fraternal 
 
 Alliance, 57, 274. 
 Jersey City. Mayor, etc., of, v. 
 
 Horton, 18, 223, 310. 
 Jewett V. Bacon, 202. 
 Johann v. Rufener, 180, 183, 188. 
 190, 191, 192, 193, 314, 317, 3S9. 
 John It. Davis Lumber Co. v. 
 First Nat. Bank, 184, 303, 310, 
 330, 371, 409. 
 Johns V. Allen, 30. 
 
 V. Field, 200, 207. 
 Johnson v. Brant, 47, 343. 
 V. Carry, 49, 192. 
 V. Delbridge, 268, 277, 388 
 
 398. 
 V. Dexter, 213, 297, 316, 38i). 
 V. Geneva Pub. Co.. 48, 378. 
 V. Gorham, 188, 193. 
 V. Griffith, 188. 
 V. Hersey, 159. 
 V. King, 157. 
 V. Mason, 2!). 
 V. McCutchings, 388. 
 V. Pace, 72. 
 V. Plimpton, 404, 405. 
 V. Riddle, 174. 
 V. Shipman, 2.'50. 
 Johnston v. Blanks, 397. 
 
CASES CITED. 
 
 xlvii 
 
 [The figures refer to sections.] 
 
 Johnstof V. Howard, 379. 
 Joues V. Ciews, G2, 117. 
 
 V. Field, 84. 
 
 V. Glover, 70, 72. 
 
 v. Howell. 288, 408. 
 
 V. HuutiugtoQ, 13, 187. 
 
 V. .Joness, 27. 
 
 V. Keller. 52, 70. 
 
 V. Kemper, 2S.j. 
 
 V. Langborne. 40, 48, 201, 352, 
 353, 354, 371, 370. 
 
 V. Lowery Banking Co., GO. 
 
 V. Manufacturers' Nat. Bank. 
 139. 
 
 V. New York & E. Ry. Co., 3, 
 17, 140. 
 
 V. Norris, 104. 
 
 V. Pacific Wood, Lumber & 
 Flume Co., 71. 
 
 V. Peek, 250. 
 
 V. Pope, 371. 
 
 V. Roberts, 41, 372. 
 
 V. St. Onge, 49, 140, 152, 210, 
 252, 201. 
 
 V. Tracy, 48. 80, 387. 
 
 V. Whiteselle, 83, 98. 
 
 V, Winchester. 15. 
 
 V. Wood. 199, 200. 
 Jordan v. Harmon. 333. 
 
 V. .Jordan. 49. 
 .Joseph V. Davis, 112. 
 Joslyn V. Merrow, 01. 04. 
 Judah V. .Tudd, 187. 
 Judd V. Littlejohn, 45. 
 •Junction Ry. Co. v. Cleneay, 129, 
 133. 
 
 Kaiser v. Sea ton, 9S. 
 
 Kalisky v. Currey, 403. 
 
 Kane v. Cloiigh, 74. 
 
 Kansas City. St. J. i^ B. C. Ry. 
 
 Co. V. aough, 80, 92, 400. 
 Kansas Inv, Co. v. .Jones, 40, 61. 
 Kapp V. Teel, 133. 
 Karnes v. Pritcbard, 295. 
 
 Karp V. Citizens' National Bank 
 of Saginaw, 7, 133, 135, 181, 184, 
 300, 314. 
 Katz V. Sorsby. 149. 
 Kaufman v. Hude. 397, 399. 
 Kautfman v. .Jacobs. 49, 409. 
 Kayser v. Bauer, 405. 
 Kean v. Doerner. 335. 
 Kearney v. Xixon, 291. 308. 
 Keating v. American Refrigera- 
 tor Co., 397. 
 Keel V. Ogden. 312. 
 Keep V. Sanderson, 70, 81, 289. 
 Kein \. School Dist.. 18. 
 Keith V. Harris, 144. 
 
 V. Smith, 317. 
 Ivelley v. Andrews, 7.5, 1.53, 308. 
 V." Weymouth, 288, 309, 371. 
 Kellogg V. Freeman. 385. 
 V. Schuler, 152. 
 V. Waite, 333„ 397, 399, 401 
 403. 
 Kelly V. Bertrand, 01. 
 
 V. Bowman, 303, 304. 312. 
 
 V. Dill, 45. 
 
 V. Gibbs, 2, 127, 355, 370, 39;i. 
 
 398. 
 V. Roberts, 57. 
 Kelly Banking Co. v. J. M. Rob- 
 inson-Norton Co., 205. 
 Kendrick v. B. & N. Y. C. Ry. Co.. 
 
 194. 
 Kennedy v. Aldridge, 57. 
 \. Brent, 192. 
 V. HiJjernian Savings & Loan 
 
 Soc, 273. 
 v. McLellan, 6, 13, 153, 102, 
 
 182, 333, 409. 
 V. Tiernay. 7, 407. 
 Kenosha Stove Co. v. Shedd. 2. 
 
 70, 105, 283, 298, 370. 
 Kent V. Hutchins, 397, 400. 
 Kentzler v. Chicago, M. & St. P. 
 
 Ry. Co., 225, 409. 
 Keppel V. Moore, 27, 182, 209, 372, 
 
 374. 
 Kergin v. Dawson, 174, 175, 28ii, 
 353, 309. 
 
xlviii 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Kern v. Chicago Co-operative 
 
 Brewery Ass'n, 392. 
 Kesler v. St. Johns, 192, 280. 
 Kestler v. Kern, 101, 102. 
 Kettle V. Harvey, 46, 63. 
 Keyes v. Milwaukee & St. Paul 
 Ry. Co., 44, 150, 378, 379. 
 
 V. Rines, 98. 
 Keyser v. Rice, 103. 
 Kidd V. Dougherty, 27, 275. 
 
 V. Shepherd, 143. 
 Ividderlin v. Meyer, 3. 
 Kieffer v. Ehler, 133, 138, 137. 
 Kiely v. Bertrand, 61, 365. 
 Kienne v. Anderson, 356. 
 Kiewert Co. v. Hoyt, 283. 
 Kiggins V. Woodke, 52, 175, 400. 
 Kile V. Montgomery, 91. 
 ICillsa V. Lermond, 202. 
 Kimball v. Evans, 71, 77, 81. 
 
 V. Gay, 131. 
 
 V. I^ee, 187. 
 
 V. Macomber, 184, 206, 409. 
 
 V. Mulhern, 27. 
 
 V. Plant, 133. 
 Kimbrough v. Davis, 200. 
 Kimpson v. Hunt, 405. 
 King V. Bird, 342. 
 
 V. Carhart, 315. 
 
 V. Hyatt, 396. 
 
 V. Moore, 35. 
 
 V Payan, 6. 
 
 V. Vance, 126, 133, 137, 205, 
 208. 
 Kingman v. Perkins, 46, 70, 76. 
 Kinne v. Anderson, 3.56. 
 Kinsloe v. Davis, 46, 59. 
 Kirby Carpenter Co. v. Trombley, 
 
 273, 278. 
 Kirby v. Corning, 57, 332, 346, 
 
 350, 351, 355. 
 Kirkland v. Brune, 51. 
 Kitzinger v. Beck, 208. 
 Klaus V. City of Green Bay, 11. 
 Klauber v. Wright, 46, 309, 371. 
 Kling V. Childs, 319. 
 Klocow V. Patten, 47. 
 Knabb v. Drake, 97. 
 
 Knapp V. Levanway, 201, 267, 
 
 291, 292, 308. 
 Knebelkamp v. Fogg, 140. 
 Kneeland v. Cowles, 2(i9, 277. 
 Kneettle v. Newconib. 80. 
 Knefler v. Shreve, 59. 
 Knerr v, Hoffman, 159. 
 Knight V. Bowley, 164. 
 
 V. Clyde, 39. 
 
 V. Paul, 334. 
 Knisely v. Evans, 134, 205, 301. 
 Knowles v. Herbert, 153, 169. 
 Knox V. Protection Ins. Co., 7, 16, 
 76, 123, 148, 149, 300. 
 
 V. ScUepler, 160. 
 
 V. Summers, 254. 
 Koliler V Thorn, 279. 
 Kohlsaat, In re, 27. 
 Kolm V. Ryan, 75, 77. 
 Kraft V. Raths, 224, 275, 279, 397. 
 Kreisle v. Campbell, 27, 152. 
 Krupp V. Tabor, 45, 334. 
 Kruse v. Wilson, 10. 
 Kuhn V. Warren Savings Bank, 
 
 71, 84. 
 Kuntz V. Kinney, 90. 
 
 Lackett v. Rumbaugh, 46, 48, 49, 
 
 118, 138, 179, 224, 231, 275, 303, 
 
 344. 351, 397. 
 Lackland v. Garesch, 76. 
 Laclair v. Reynolds, 397. 
 La Crosse Nat. Bank v. Wilson, 
 
 2, 7, 153, 165, 368. 
 Ladd V. Baker, 262. 
 V. Cousins, 397. 
 V. Jacobs. 198, 202. 
 Lady Bnsley Furnace Co. v. Ro- 
 
 gan, 49, 192, 258. 
 Laidlow V. Morrow, 213, 224, 275, 
 
 279, 382, 385. 
 Lake Shore & M. S. Ry. Co. v. 
 
 Hunt, 273. 278, 285. 
 Lamar v. Chisholm, 91. 
 
OASES CITED. 
 
 XilX 
 
 [The figures refer to sections.] 
 
 Lamb v. Franklin llanuf'g Co., 
 313. 
 
 V. Stone, 76, 308. 
 Lambert v. Challis, 278. 
 Lambreth v. Clark, 273. 
 Lamson v. Bradley, 2G3. 
 Lanan v. Smith, 74. 
 Landa v. Mo., K. & T. Ry. Co., 
 
 37, 60. 
 Landry v. Chayret, 40. 
 Landsberg v. Bullock, 6, 27o. 
 Lane v. Felt, 164, 312. 
 
 V. Nowell, 53. 
 
 V. Richardson, 96. 
 Langdon v. Lockett, 34. 
 
 V. Thompson, 317, 402. 
 Langford v. Ottumwa W. P. Co., 
 114, 316, 382, 385, 3S8, 392, 39S. 
 Lanham v. Lanhara, 835, 338, 353. 
 Laport V. Bacon, 212. 
 Larey v. Baker, 346. 
 Laredo, City of, v. Xiille, IS. 
 Large v. Moore, 206. 
 Larkin v. Wilson, 17. 
 Larrabee v. Knight, 206. 
 Laschear v. White, 369. 
 Lasley v. Sisloff, 289. 
 Laughlin v. Peckham, 367. 
 Lawrence v. Batcheller, 102. 
 
 V. Lane, 127, 203. 
 
 V. McKenzie, 47, 81, 174. 343. 
 
 V. Security Co., 12, 48, 59, 185. 
 
 V. Smith, 15, 240, 386. 
 Lawrence Bank of Pittsburg v. 
 Kainey & Berger Iron Co., 334. 
 Layman v. Beam, 387, 393. 
 Lazarus Burnett's Case, 7. 
 Leake v. Lacey, 18, 21. 
 Lecesne v. Cottin, 318. 
 Lee V. Babcock, 401. 
 
 V. Robinson, 67, 70, 333. 
 
 V. Tabor, 76. 
 Leefe v. Walker, 148. 
 Lehigh Coal & .Iron Co. v. Svipe- 
 
 rior Iron & Steel Co., 72. 
 Lehigh Val. Ins. Co. v. Fuller, 
 388. 
 
 LAW GAKNISH.— d 
 
 Lehigh Val. Ry. Co. v. Woodriug, 
 
 73. 
 Lehigh Zinc & Iron Co. v. Trotter, 
 
 147. 
 Lehman v. Hudmon, 295, 309, 
 
 386, 388. 
 Lehnotf v. Fisher, 94, 407. 
 Leiber v. Union I'ac. Ky. Co., 60, 
 
 85, 100. 
 Leigh V. Smith. 384, 385. 
 Leijhton v. Heagerty, 25, 69, 84, 
 
 165, 168. 
 Lennan v. Walter, 379. 
 Leonard v. Xew Bedford Five 
 Cent Sav. Bank, 214, 220. 
 V. Lawrence, lul. 
 V. Speidel, .322. 
 Leroux v. Baldus, 34. 
 Leslie v. Godfrey, 312, .346, 349, 
 oS:;, 
 V. Merrill, 45, 133. 
 Lessing v. Vertrees, 47. 
 Letts, P''letcher it Co. v. McMas- 
 
 ter, 81, 369. 
 Levicks v. Walker, 86. 
 Levisohn v. WaKanei-. 164. 
 Levy V. Miller, 182, 203, 315, 333, 
 
 341. 
 Lewis V. Board of Com'rs, 72. 
 V. Bush, 66, 70, 71. 242. 
 V. Dubose, 27, 150. 
 v. Dunlap, 206, 311. 
 V. Faul, 3S7. 
 V Prenatt, 372. 
 V. Sercomb, 223. 
 V. Smith, 42, 46, 50, 57. 
 V. Traders' Bank, 60, 70, 71, 
 242. 
 Lichtenberg v. Hosnier Circuit 
 
 .Tudge, 403. 
 Lieber v. St. Louis Agricultural 
 
 & Mechanical Ass'n. 144. 
 Lightner v. Steinagel. 27. 35. 
 Lilienthal v. Wallach, 180, 193. 
 Lindell v. Benton, 279. 
 Lindcnthal v. Burke, 3.54, 367. 
 Liuder v. Murdy, 371, 391. 
 
LAW OF GAENISHMENT. 
 
 [The figures refer to sections.] 
 
 landsay v. Jlorris, 3.j4, 357, 359, 
 
 3U0 
 Linclsley v. Watson, 395. 
 Linton v. Crosby, 88. 
 LiDpitt V. American Wood Pa- 
 per Co., 110. 
 Lithgow V. Byrne, 2.j3. 
 Little V. Hale, 131. 
 
 V. Owen, 138. 
 Littlefleld v. Hodge, 127, 133, 203. 
 Littleton Xat Bank v. P. & O. Ry. 
 
 Co., 43. 
 Little WoK River Imp. Co. v. 
 
 .Tackson, 72, 174, 329, -.Gl, 398. 
 Llano Improvement & Furnace 
 
 Co. V. Castanola, 398. 
 Lock V. Johnson, 83, S.j. 
 Locke V. Butler, 28. 
 Locke V. Tippets, 143, 192. 
 Locket V. Child, 155. 
 Lockett V. Rumbough, 153, 331. 
 Ijockhart v. .Johnson, ;>"i(j, 3li0. 
 Lockwood V. Worstell, 41. 
 Loder v. Baker & Co., 25. 
 Lodge V. Wlieeler, 273. 
 Loftin V. Shackelford, 379. 
 Loh V. Judge of Wayne Circuit, 
 
 323, 324. 
 Lomerson v. Hoffman, 190, 191, 
 
 215, 220, 310, 357, 3.58, 359, 309, 
 
 392. 
 Lomerson v. Huffman, 40, 150, 
 
 369. 
 Long V. Emsley, 47. 
 V. Girdwood, 06. 
 V. Martin, 79. 
 liOngwoU V. Hartwell, 316, 369, 
 
 387, 392, 393. 
 Look V. Brackett, 333. 
 Lord V. Collins, 27, 30. 
 V. Devendorf, 81. 
 V. Meachem, 14, 27, 383. 
 Lorenz v. King, 31, 379, 393. 
 Loring v. Folger, 213, 229. 
 Lorman v. Phoenix Ins. Co., 181, 
 
 295, 29(- 300, 307, 397, 401, 409. 
 Losee v. McCarty, 17, 60. 
 Louderman v. Wilson, 117. 
 
 Louisville & X. Ry. Co. v. Dooley, 
 
 15, 242, 243. 
 Louisville, N. A. & C. Ry. Co. v. 
 
 Lake, 213, 225. 255. 
 Lovejoy v. Albee, 15. 
 
 V. Hartford Fire Ins. Co., 119. 
 
 V. Lee, 28, 35, TjO, 76, 164, 
 408. 
 Lowe V. Stringham, 92. 
 Lowery v. Clements. 279, 385. 
 Lowry v. Lumberman's Bank, 
 208. 
 
 V. McAllister, 88. 
 Loyless v. Hodges, 54, 192. 
 Lucas V. Campbell, 55, 398. 
 Ludlow V. Bingham, 128. 
 Lundie v. Bi-adford, 154. 
 Lupton V. Cutter, 164. 
 
 V. Moore. 270. 
 Lusk V. Galloway, 3, 307, 406. 
 Luton V. Hoehn, 8, 144, 146. 
 Lutz V. Frutchey, 94. 
 Lyford v. Demerrltt, 202. 
 Lyman v. Cartwright, 203. 
 
 V. Orr, 138, 139, 141, 317. 
 
 V. Tarbell, 314. 
 
 V. AVood, 8, 39. 
 Lynch v. Hartford Fire Ins. Co., 
 
 104, 199, 200, 201. 
 Lynde v. Watson, 370. 
 Lyndon v. Gorham, 157. 
 Lyon V. Balleutine, 6, 9, 78, 263, 
 272, 333. 
 
 V. Callopy, 92, 100. 
 
 V. Kneeland, 181, 314. 
 Lyons v. Houston, 27. 
 
 M 
 
 McAllister v. Brooks, 67, 204, 207, 
 208, 212, 315. 
 V. Penn Ins. Co., 17, 273. 
 JIcArthur v. Garman, 47, 57. 
 McAulifCe v. Farmer, 195, 206, 
 
 301. 
 McBride v. Fallou, 167. 
 
CASES CITED. 
 
 LTlie figures refer to sections.] 
 
 McBride v. Protection Ins. Co., 5, 
 
 263, 266. 
 McCaffrey v. Moore, 148. 
 McCallum v. Brandt, 2!).'>, 20(i. 
 McCanns v. Board's Heirs, 138. 
 
 V. Randall, 164. 
 McCarty v. Tlie City of New 
 Bedford, 5. 9.j, 104, 21 )S. 
 214. 
 V. Emlin, 144, 146, 159. 
 McCloske.v, V. Circuit Judge of 
 
 Wayne Circuit, 27."). 
 McCluney & Co. v. .laclison, 1S9. 
 McCobb V. Tyler, 38S. 
 McCoid V. Beatty, 134, 2(J.j. 
 McConuell v. Denbani, 174, 1!I3. 
 y. Rakness, 77, 269, 397, 399, 
 40G. 
 McCoombe v. Duncli, 13. 
 McCorkle v. Herrman, ISS. 
 McCormick Harvesting Macla. 
 
 Co. V. James, 238. 271, 390. 
 McCourtie v. Davis, 293, 316. 
 McCown V. Russell, 49, 176, 192. 
 McCoy V. Boyle, 279. 
 V. Cornell, 93^ 
 
 V. Williams, 312, 313, 315, 
 362, 377. 
 McCreary v. Tapper, 31. 
 McCullom V. Richardson, 188. 
 McDaniel v. Hughes, 208, 218. 
 McDonald v. Alansou. Mauuf'g 
 Co., 224. 
 V. Bryant, 63. 
 v. Carney, 144, 199. 
 . V. Creager, 168, 173, 103, 402. 
 V. Faulkner, 172. 
 V. Finney, 316, 386. 
 V. Gilett, 53. 
 MacDonald v. Kneeland, 06. 205. 
 McDonald v. Moore, 277, 359, 370, 
 371. 
 V. Rennel, 296, 387. 
 V. Vinette, 6, 238, 204. 
 McDougal V. Board of Sup'rs of 
 
 Hennepin Co., 18. 
 Mace V. Heath, 82, 83, 85, 217. 
 v. Herrald, 49. 
 
 McBvoy V. Lane, 2S9. 
 McFaddeu v. O'Donuell, 199, 3S1. 
 JIcFarland v. Fish, 99. 
 McGnrry v. Lewis Coal Co., 193, 
 
 194. 
 McGillin v. Clafflin, 276. 
 ilcGlennan v. Margowski, 284. 
 JIcGowau v. .Myers. 27. 30. 
 McGraw v. .Memphis & O. Ky. 
 
 Co., 42. 
 McGroger v. Chase, 172. 
 McGuirc v. Church. 231, 269, 275. 
 v. Pitt's Sous, UiJ, 2(17, 225, 
 
 230, 334. 
 McGurren v. Garrity, 127. 
 JIcHugh V-. Curtis, 92, 
 Jlcllvaine v. L.TUcaster, 57. 
 ilclntosh V. Ogilvie, 103. 
 .Mack V. Brown. 249, 251. 256, 291, 
 
 .",(1S. 
 
 V. Winslow, 145. 201. 
 JIcKuun V. Turner, 148, 140. 
 McKuIvcy V. Crockett, 3, 7, 46, 
 
 113 
 McKeuzie v. .Xoljle, 27. 
 
 V. Ransom, 268. 270, 275. 
 McKeou V. .McDermott, 199. 
 Mackey v. Hodgson. 13S. 142. 
 McKiuney v. Snider. 6. 
 McKittrick v. Clemens, 333. 
 McLarty v. Tibbs, 88. 
 McLellan v. Youug, 18, 23. 
 McMahou v. Merrick, 66, 333, 
 
 342, 346. 
 McMeekin v. State, 25. 
 McMinn v. Hall, 117, 120. 
 McNeill V. Kyle, 403. 
 Macomber v. Doane, 69. 70. 
 
 V. Wright, 262, 299. 
 McPliail V. Hyatt, 207, 209. 
 McPhee v. Ciomer, 213, 225, 385. 
 McPherson v. Snowden, 34. 
 McPhillips V. Hubbard, 237. 
 McRee v. Brown, 145, 199. 
 McSkimin v. Knowlton, SO. 
 McWilliams v. Standard Guano 
 
 & Chemical Co., 3(!2. 383, 384. 
 Maduel V. Mousseaux, 118. 
 
Hi 
 
 LAW OF GARNISHMENT. 
 
 [The figures --efer to sections.] 
 
 Mahany v. Kepliart, 17. 
 Mahoney v. McLean, 342, 351, 
 
 354, 362, 384, 389. 
 Main v. Lynch, 279. 
 Maine Fire & Marine Ins. Co. v. 
 
 Weeks, 164. 
 Maisli V. Bird, 193, 194, 32S. 
 Malley v. Altman, 3, ISO, 187, 193. 
 Maloney v. Casey, 4(i, 135, 205. 
 Mancliester v. Burns, 99. 
 Mandel v. Peet, 2."i3. 
 Mandeville v. Asl^ew, 356, 3S4. 
 Mangold v. Dooley, 2GS, 273, 279. 
 Mankin v. Cliandler, 203. 
 Manly v. Bitzer, 74. 
 Mann v. Bnford, 36, 46, 313. 
 
 V. Kelsey, 97. 
 Mansfield v. New England Exp. 
 Co., 292, 301, 308. 
 V. Stevens, 47, 174. 314, 333. 
 Manson v. Phoenix Ins. Co., 47, 
 
 174. 
 Mansur v. Coffin. 267. 
 Manufacturers' Bank v. Osgood, 
 
 379. 
 Manville v. B.Tttle Mountain 
 
 Smelting Co., 2.58, 264. 
 Marble Falls Ferry Co. v. Splt- 
 
 ler, 12G, 130, 137a. 
 Mardeu v. Wheelock, 199. 
 Marine Nat. Bank v. Whiteman 
 
 Paper Mill, 29. 
 Markham v. Gehan, 13, 157, 162. 
 Marks v. Anderson, 46, 174. 
 
 V. Reinberg, 363. 
 Marqueze v. Le Blanc, 15, 270. 
 Mars V. Virginia, H. 1. Co., 198. 
 .Marsh v. Davis, 204, 206. 
 JIarshall v. Grand Gulf Railway 
 & Banking Co., 116. 
 V. State, 96. 
 Marston v. Carr, 164, 333, 354, 
 
 360. 
 Jlartin v Abbot, 381. 
 
 V. Chicago, R. 1. & P. Rv. Co., 
 
 327. 
 V. Central Vt. Ry. Co., 101. 
 V. Copeland, 57. 
 
 Martin v. Dryden, 233. 
 V. Forman, 193. 
 V, Porter, 66. 
 V. Solomons, 379. 
 Martz V. Detroit Fire & Marine 
 
 Ins. Co., 49, 62, 119. 
 Marvel y. Babbitt, 47, 335, 349. 
 Marvin v. Hawley, 27. 
 Marx V. Parker, 9, 46, 47, 339. 
 Mason v. Beebee, 100, 101, 245, 
 246, 313, 314. 
 V. Crabtree, 192. 
 V. Noonan, 133, 195. 
 Massachusetts Nat. Bank v. Bul- 
 lock, 154, 345. 
 Massengale v. McGinty, 268. 
 Matheny v. Hughes, 133. 
 Mathews v. Smith, 1, 53, 194. 
 Mathis 1'. Clark, 376. 
 Matthews v. Ploughton, 208. 
 Mattingly v. Boyd, 139, 140, 194,. 
 
 195, 198, 201, 242. 
 Maulsby v. Farr, 277. 
 Maxfield V. Edwards, 45. 
 May V. Baker, 6, 48, 132, 153, 154. 
 V. London Stock Bank, 5. 
 V. Walker, 77. 
 Mayberry v. Morris, 133, 137. 
 Mayer v. Chattahoochee Nat. 
 
 Bank, 278. 
 Mayes v. Phillips, 167. 
 Mayor, etc., of Jersey City v. 
 
 Horton, 18, 316. 
 Mayor, etc., of City of London,. 
 
 V. London Joint Stock Bank, 5. 
 Maynards v. Cornwell, 2, 8, 181, 
 
 192, 2<,;S, 315, 316, 352, 372, 374. 
 Meacham v. McCorbitt, 49, 164. 
 Mead v. Doe, 226, 384. 403. 
 Meadowcroft v. Aguew, 312, 314 
 
 338, 346. 
 Mears v. Adreon, 40 J 
 Mechanics' Sav. Bank v. Waite,. 
 
 31, 53, 59, 188, 190. 
 Meek v. Briggs, 46, 49, 59. 
 Meeker v. Wilson, 174. 
 v. Sanders, 313, 388. 
 
CASE^ CITED. 
 
 liii 
 
 [The figures refpr to sections.] 
 
 Meigs V. Weller, SO, 155, 3(55, 3G0, 
 
 372. 
 Meier v. Hess, 4G, 60. 
 Meints v. East St. Louis Co-op. 
 
 Rail Mill Co., 112. 
 Melloy V. Burtis, 225. 
 Melton V. Lewis, 3117, ;)Sli. 
 Memphis v. Laslii. 18, 21. 
 Mendeison v. Specl^er, 2U8. 
 Mensing v. Engelke, 01, 173. 
 Merac, Matter in Estate of, 35. 
 Merchants' & Manufacturers' 
 Nat. Banlv v. William A. 
 Harder Glue Co., 173. 210. 
 V. Haiman, 225, 304, 370, 3S5. 
 Merijira v. Rundlett, 192, 205, 208. 
 Merri'U v. Campbell, 18, lU, 5i. 
 Mershon v. Moors, 47. 
 Merwin v. Chicago, 14, 18, 21. 
 Metcalfe v. Steele, 385. 
 Michigan Cent. Ry. Co. v. Chi- 
 cago & M. L. S. Ry. Co., 
 37. 
 V. Keohane, 2!)3. 
 Middlebury Bank v. Edgertou, 
 
 27. 188. 
 Middleton Paper Co. v. Rock Riv- 
 er Paper Co., 258. 
 Middletoun Sav. Bank v. .Jarvis, 
 
 110. 
 Midland Pac. Ry. Co. v. McDer- 
 
 mid, 17. 
 Mlere v. Brash, 403. 
 Millard v Lenawee Circuit Judge, 
 
 255, 266. 
 Millar & Co. v. Plass, 70, 79, :i57. 
 Miller V. Chicago, M. & St. P. llj. 
 Co., 250, 2.-j3. 
 V. Dugas, 91. 
 V. Hooe, 15, 240. 
 V. Hooper, 93. 
 V. Hubbard, 70. 
 V Mahoney, 82. 
 V. Mason, 326. 
 V. McLain, 203. 
 V. Noyes, 400. 
 V. O'Bannon, 00, 270. 
 
 Miller v. Richardson, 102. 
 
 V. Taylor, 145. 
 
 V. Whitescarver, 204. 
 
 V. \YiIliams. 381, 399. 
 
 V. Wilson, 370, 408, 400. 
 Milligan v. State. 284. 
 Milliken v. Loring, 200. 
 
 V. Mannlieimer, 310, 313, 315, 
 370, 378, 409. 
 Millington v. Laurer, 90, 93, 90. 
 Millison v. Fisk, 18. 
 Mills V. Bennett, 80. 
 
 V. Stewart. 134, 202,. 205, 209, 
 214, 219. 
 Milwaukee Bridge & Iron Works 
 V. Wayne Circuit .ludge, 2, 3, 
 0, 213, 224, 251, 273. 
 Mlms V. Parker, 117, 307. 
 
 V. West, 133, 137. 
 Minard v. Lawler, 144, 218. 
 Minchin v. Moore, 303. 
 Mineral Point Ry. Co. v. Barron, 
 85, 92. 
 
 V. Keep, 10. 
 Minthorn v. Hemphill, 45, 170. 
 Missouri Pac. R.v. Co. v. Maltby, 
 85, 92, 100, 101. 
 
 V. Reid, 391. 
 
 V. Shari-itt. 60, 85, 104, 100, 
 178, 214. 242. 243. 
 
 V. Whipsker, 83, 85, 374. 
 Mitchell V. Bray, 0, 13, 251. 
 
 V. Byrne, 170. 
 
 V. Green, 107. 
 
 V. Mllhoan, 97. 
 
 V. Shelton, 50, 30:',. 
 
 V. Watson, 381, 407. 
 Mobile & O. Ry. Co. v. Barnhill, 
 < 17, 242, 245, 27;!. 
 
 V. Whitney, 192, 350. 
 Mobile V. Rowland, 18. 
 Mobile St. Ry. Co. v. Turner, 01. 
 Mock V. King, 28. 333. 
 Moeller v. Quarrier, 117, 123. 
 Molyneux v. Seymour, 15. 
 Monroe t. Lewald. 188. 
 Montgomery it E. Ity. Co. v. 
 Hartwell, 278. 
 
liv 
 
 LAW OF GARNISHMENT. 
 
 [The tigures refer to sections.] 
 
 Montgomery Gas Light Co. v. 
 
 Merriclj, 209, 22G, 407. 
 Montgomery v. Van Dorn, 300. 
 Jlontrose Pickle Go. v. Dobson 
 
 & H. M. Co., 37, 240. 
 Mooar v. Wallier, 111, 103. 2(50. 
 Moody V. Alter, 200, 267. 
 
 V. Carroll, 27, 397. 
 Mooney v. Union Pac. Ky. Co., 
 
 17, 48, 60, 100, 101, 242, 24.".. 
 Moor V. Towle, 177, 291. 
 Moore v. Baruhersel, 331. 
 V. Chattanooga, 13. 
 V. Chicago. K. 1. & P. Ry. 
 Co., 5, 84, 104, 106, 202. 
 215. 
 V. Cirouit Judge, :!, 5, 242, 
 
 273, 275, 285, 364. 
 T. Davis, 70, 71. 
 V. Graham, 260, 267, 332, 351. 
 V. Green, 133. 
 V. Heaney, 89. 
 V. Hill, 406, 409. 
 V. Holt, 193. 
 V. Kelley, 192, 2.15. 
 V. Kidder, 180, 187. 
 V. Lowrey, 70, 139. 
 V. Mayor, etc., ot Chattanoo- 
 ga, 13. 
 v. Pillow, 164. 
 V. Read, 397, 399. 
 V. Reeves, 408. 
 V. Stalnton, 3. 
 V. Spackmau, 202. 
 V. Wayne Circuit Judge, 3, 
 233, 242, 2.58, 273, 274, 
 285. 364. 
 Moors V. Goddard, 121, 164, :!43, 
 
 344, 347, 351. 
 Morey v. Sheltus, 58, 59, 118. 
 Morgan v. McLaren, 48. 
 
 V. Neville, 15, 100, 104, 107, 
 202, 214. 
 Morrell v. Rogers, 349. 
 Morrill v. Brown, 164. 
 
 T. Raymond, 57. 
 Morris v. Ludlam, 39, 218. 
 V. Penniman, 50. 
 
 Morris v. Union Par. Ry. Co., 49, 
 
 233. 
 Morrison v. McDermott, 351, 397,. 
 401. 
 V. New Bedford Inst, for 
 Savings, 213. 
 Jlorse V. Holt, 53. 
 
 V. Marshall, 314, .iOO. 
 V. Nash, 274. 
 Mortland v. Little, 188, 301, 342, 
 
 384. 
 Morton v. GrafHin, 6, lOS, 109.. 
 164. 1(J5, 175, 187. 
 V. Webb, 199. 
 Moser V. Maberry, 376. 
 Moshassuck Pelt Mill v. Bland- 
 
 ing, 17, 273. 
 Mosher v. Banking House, 265, 
 
 273, 278. 
 Mostyn v. Fabrygas, 325. 
 Moton V. Hull, 103. 
 Moursuud V. Priess, 97. 164, 166, 
 
 313, 397, 398. 
 Jlowry V. Crocker, 66, 81, 205. 
 
 V. Davenport, 376. 
 Jloxley V. Ragan, 86. 
 Mudge V. Lanning, 98. 
 Mueth V. Schardin, 42, 47. 
 Mulhall V. Quinn, 73. 
 Mull V. Jones, 84, 85, 96, 391. 
 Mumper v. Wilson, 103. 
 Murphey, Application of, 110. 
 Murphree v. City of Mobile, 13, 
 
 42, 374, 389. 
 Murrell v. Johnson 27. 
 Muse v. Lehman, 204, 335. 
 Mustard v. Union X.at. Bank, 13S. 
 
 140. 
 Mutual Life Ins. Co. v. Moss, 294. 
 Muzzy v. Lantry, 49, 84. 
 Myatt V. Lockhart, 289, 354, 357, 
 
 363. 
 Myer v. Liverpool, L. & G. Ins, 
 
 Co., 17, 46. 
 Myers v. Beeman, 133. 
 V. McHugh, 174. 
 V. Smith, 5, 157, 158, 317-320, 
 364, 3S3. 
 
CASES CITED. 
 
 ]%' 
 
 [The tigures refer to sections.] 
 
 Myers v. Uricli, 200. 
 Mygatt V. Burton, :!, .'iT'^. 
 
 N 
 
 Narramore v. Clark, .'iO. 
 Nash V. Bropby, JUT. 
 
 V. Gale, 49, .5(1, 12{!, l!!."), 249, 
 2.52, 25(i, 291, 402. 
 Nashville Bank v. Ragsdale, 111. 
 Nathan v. Giles, 2 IS. 
 National Bank nl' Anierirn v. 
 
 Indiana Banking Co., (ill, i!9, 71, 
 
 378, 379, ;!92, .•!!!.-,. 
 National Bank of Commerce v. 
 
 Huntlnffton, 17, 273. 
 National Bank of Commerce of 
 
 Chicago V. Titsworth, 207, 379. 
 National Bank of (inlena v.Chase. 
 
 332, ;!4:i, 34S, .-.S:!, 400. 
 National Bank of .\■(■^Yl)ury v. 
 
 Webster, 131 
 National Bank of New Loudou v. 
 
 Lake Shore & M. S. Uy. Co.. 
 
 55, 77, 110, 111, 274. 
 National Commercial Bank v. 
 
 Miller, 337. 
 National Fire Ins. ( 'o. v. Cliam- 
 
 bers, 12, 17, 214, 242, 245. 
 National I'ark Bank v. Levy, 40, 
 
 71, 137a. 
 National Union Bank v. Brainerd, 
 
 52, 115, 110, .•i51, .•',97. .-iOS. 
 Neal V. Cook, 205, 310, 357. 
 Neally ^-. Ambrose, 291, 308. 
 Near v. .Mitchell. 19S, 199. 
 Neilsou V. Scott. 310. 
 Nelson v. Connor, 27. 
 
 V. .Sanborn, 192, 2li0, 271, 2S0. 
 Nesbitt \. Campbell, 127, 378. 
 
 \'. \A'are, 117. 
 Netter v. Chicago Board of Trade, 
 
 IIL 
 Neufelder v. (icrmau-Anierican 
 
 Ins. Co., 12, 17. 202. 242, 245. 
 Neumann v. Calumet & Hecla 
 
 .Min. Co., 74. 81. 
 Neuer v. O'P'allon, 57. 
 
 Nevin V. Fouche, .322. 
 
 Newark v. Funk, 18. 
 
 New Bedford, City of, 83. 95. KH, 
 
 147, 202. 
 Newell V. Blair. 1S1. 28S. 29S, 308, 
 
 309, 372, 405, 409. 
 New England Mut. Ace. .Ass'n v. 
 
 Varian, 380. 
 New England Screw Co. v. Bliv- 
 
 en, 39, 195. 
 New Hampshire I. F. Co. v.IMatt, 
 
 104. 
 New Haven Steam Saw Jlill Co. 
 
 ^ . Fowler, 7, 28. 118. 
 Xewland v. Circuit .ludge of 
 
 Wayne Co., 2. 5, 7. T2, 233, 242, 
 
 274. 
 Newlin V. Scott. 398. 
 Newman v. Jlannin;;, 207. 
 New Oi-loans, I. G. & N, Uy. Co. 
 
 V. Wallace, 17. 
 \e\v York, L, E. & W. By. Co. 
 
 V. Cookson. 2.30. 2.5S. 
 -Nichols \ . Eaton. .59. 
 
 V. Hooper. 00, 01 i, 128. 
 V. Schotield, 4li, 120, 13.3. 
 Nicholas V. Crook, .57. 
 Xickerson v. Chase. 52, 378. 
 
 V. Nickersiin, 119. 
 Nicoll V. Mnraford. 08. 
 Xiei'osi V. Irvine, 113. 
 Niland v. Halish, 41. 
 Nims V. Ford, .58, 154. 
 Noble V. Bowman, .'!21. 
 V. Bourke, 224, IVJ'J. 
 V. Merrill, .■'.SJ. 
 V. Smith. «i7. 
 
 V. Thomiisnn Oil Co.. 40, 202, 
 207. 210, 217, 229, 201. 
 Norcioss V. Benton, .■!79. 
 Non-is V. Burgoyne, 49. 
 
 V. Hall, 139, 20S, 
 North British & iVIercantile Ins. 
 
 Co. V. First Nat. Bank of Ty- 
 ler, 201. 
 North Chicago liolliug Mill Co. 
 
 V. St. IjOuIs Ore it Steel Co., 
 
 46, 48, 193, 379. 
 
Ivi 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 North Star Boot & Shoe Co. v. 
 
 Ladd, 7.J, 79, 193, o4S, 349. 
 Northam v. Cartwright, 07. 
 Northern Central Ky. Co. v. Kid- 
 
 er, 270, 271, 278. 
 Northfield Knife Co. v. Sharp- 
 
 leigh, 15, 193, 194. 
 Northrup v. Newton & Bridire- 
 
 port Turnpilie Co., 110. 
 Northwestern Ins. Co. v. Atlcins, 
 
 123, 149. 
 Norton v. Claris, 27. 
 V. Gratliiu, 187. 
 V. Norton, 39, 111, 1(J4, lli.3, 
 
 174. 
 V. Winter, 144. 
 Noyes V. Breut, 77. 
 V. Foster, 14.'j. 
 V. Hickoli, 379. 
 Nugent V. Opdyke, .30.j. 
 Nutter V. Framingham & Loweil 
 
 Ry. 48, 181. 308, 379. 
 Nye V. Liscombe, 15. 
 
 O 
 
 Oakes v. JMarquardt, 84. 
 Oberteufter v. Harwood, 2, 7, 308. 
 O'Brien v. Coliins, 49. 
 V. Liddell, 144. 
 
 V. Merchants' & Traders' Fire 
 Ins. Co., 205. 
 O'Brien, Petition of, 41. 
 Ochiltree v. Missouri, 1. & X. Ry. 
 
 Co., 144. 
 O'Connell v. Ackerman, 2r>l. 
 < )'Connor v. Walter, 102. 
 Odend'hal v. Devlin, 38, 41. 
 O'Donnell v. Mclntire, 401. 
 Ogden V. Mills, 297, 381. 
 Ohio & M. Ry. Co. v. Alvey, 21U, 
 
 22(!, 230. 
 Oldhani v. Ledbetter, 207, 209. 
 Olin V. Figeroux, 203. 
 Oliver v. Chicago & A. Ry. Co., 
 
 298, 300, 308. 
 Olivia A. Carrigan, The, 40, 188, 
 
 190. 
 
 O'Neill V. Sewell, 26. 
 Opdyke, Ex parte, 334. 
 Oppenhoimer v. Hamrick, 3.50. 
 
 V. Marr, 29, 34, 35. 
 Ordway v. Remington, 120, 120, 
 
 313. 
 O'Reilly v. Cleary, 397. 
 
 v. aiilwaukee & N. Ry. Co., 
 185. 
 Oregon R. & N. Co. v. Gates, 40, 
 
 380. 
 Orient Ins. Co. v. Sloan, 144, 145, 
 
 147. 
 Oriental Bank v. Treniont Ins. 
 
 Co., 138, 139, 140, 141, 317. 
 Ormond v. Moye, 133. 
 Ormsby v. Anson, 301, 312. 
 
 V. Davis, 312. 
 O'Rourke v. Chicago, M. & St. P. 
 
 Ry. Co., 213, 229. 
 Orr V. Box, 92. 
 
 V. McBryde, 35.- 
 Orton V. Noonim, 10, 252, 281, 
 
 317. 
 Osborn v. Cloud, 1(57. 
 V. Edwards, 1.j4. 
 V. Schutt, 84. 
 Osner v. Dieterle, 341. 
 Outcalt V. Duling, 174, 175. 
 Overton v. Hill, 27. 
 Owen V. Estes, Uo. 
 
 Pace V. Smith, 27, 34. 
 
 Padden v. Moore, 204, 310, 309. 
 
 Page V. Baldwin, 395, 399. 
 
 V. Smith, 1.53, 288, 312. 
 Palmer v. Gilmore, 40, 372. 
 
 V. Noyes, 28. 31, 49. 
 
 V. Woodward, OS, 210. 
 Pana, Town of, v. Bowler, 233. 
 Pancake v. Harris, 225. 
 Paramour v. Pain, 39. 
 Park V. Matthews, 59. 
 
 V. Adams, 231, 335, 338. 
 Parker v. Danforth, 15, 272. 
 
 V. Donnally, 27. 
 
CASES CITED. 
 
 Ivii 
 
 [The figures refer to sections.] 
 
 ParUer v. Kinsman, l,s.3, 1S8, 192. 
 
 v. Page, 807, ^54, 391, 40SJ. 
 
 V. Parker, 3S1. 
 
 V. Wilson, 184, 200. 
 
 V. Wright, 159. 
 Parks V. Cuslinian. 31, 82. 
 Piiruienter v. Cliilds, 2113, 3S(i. 
 Parsons v. Livingston, SS. 
 
 V. Root, 378, 379. 
 Pascliall V. Wliitsett, 11. 
 Patrick v.iMonti'ader, 188, 189. 
 Patterson v. Berry, 49. 
 
 V. Bowie, 193, 254. 
 
 V. Buckminster, 292, 312, 3S1. 
 
 V. Harland, 170, 405. 
 
 V. Patten, 381. 
 
 V. Pratt, 27. 50. 
 Patton V. Gates, 77, 13!. 134, 137. 
 Panl V. Bird, 2, 224, 2.jS, 2U8. 
 
 V. Paul, 150. 
 
 V. Reed, 125. 
 
 V. Roney, 195. 
 Pawley v. Gaines, 27. 
 Payne v. Gibson, 99. 
 P. Cox Manuf'g Co. v. August, 
 
 284, 338, 374, 
 Peabody v. Maguire, 25, 53, 161, 
 
 267, 350, 397, 398. 
 Peace v. .Tones, 120. 
 Peacock v. Wildes, 13. 
 Pearce v. Shorter, li:4. 
 Pearson v. Jllller. 88. 
 Pecard v. Home, 347, 350. 
 Peck V. Barnum, 15, 261, 272. 
 
 V. Jenness, 45. 
 
 V. Walton, 67. 
 Peck Bros. v. Stratton, 343, 351. 
 Peckinbaugh v. Quillan, 171. 
 Peebles v. Meeds. 117. 
 Peet V. McDanlel, 150. 
 Pelrce v. City of Boston, 379. 
 Pendleton v; Perkins, 24, 187. 
 Pendrick v. ilcCall, 300. 
 Peninsular Stove Co. v. Circuit 
 Judge of Wayne Co., 6, 248, 
 352, 397. 
 Penn v. Pelan, 296, 299. 
 Pennebaker v. TomUnson, 26. 
 
 Pennell v. Grubb, 379, 380. 
 Penninian v. Ruggles, 27. 
 
 V. Smith, 144, 205. 
 Pennoyer v. Netf, 233. 
 Pennsylvania Coal Co. v. Costel- 
 
 lo, 90. 
 Pennsylvania Ry. Co. v. Pen- 
 nock, 37, 240, 273. 
 
 v. Peoples, 17, 273, 383. 
 Pennsylvania Steel Co. v. New 
 Jersey Southern Ry. Co., 6, 335. 
 Penyan v. Beri-y, 391. 
 People v. Cameron, 320. 
 
 V. Herkimer. 25. 
 
 v. Johnson, 12, 314. 
 
 V. Omaha, 18. 
 People's Bank v. Gridley, 110. 
 
 V. Shryock, 157. 
 Perea v. Colorado National Bank 
 of Texas, 2, 8, 9, 10, 40, 50, 75, 
 79, 154, 28S, 363, 368, 369, 408. 
 Perego v. Bonesteel, 75. 
 Perkins v. Guy, 145. 
 
 V. Parker, 208. 
 Perrin v. Russell, 172. 
 Perry v. Coates, 164. 
 
 V. Thornton, 27, l.')4. 
 Pert V. McDaniel, l-5(i. 
 Peters v. League, 386. 
 
 V. Rogers, 15. 
 Peterson v. Hays, 407. 
 
 V. Loring, 63. 
 
 V. Sinclair, 114. 
 Pettes V. Spalding, 2G1. 
 Petti bone v. Stevens, 79. 
 Pettingill v. Androscoggin Ry. 
 
 Co., 42. 
 Pettit V. Muskegon Booming Co., 
 
 88, 92, 273, 285, 300. 
 Phelan v. Ganebin, 29, 34. 
 Phelps V. Atchison, Topeka & S. 
 F. R. Co., 301. 
 
 V. Reeder, 267, '379. 
 
 V. Town, 317. 
 Phenix Ins. Co. of Brooklyn v. 
 
 Willis, 46, 119, 354, 357. 
 Phettplace v. Lincoln, 294. 
 
Iviii 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 rhillips V. Germon, 152, 268, 2S0, 
 365. 
 V. Snodgrass, 270. 
 V. Thurber, 270, 348. 
 V. Wilson, 399, 401. 
 Phillipsburg Banls v. Fulnier, 
 
 372. 
 Phipps V. Rieley, 46, 180, 184, 
 
 199, 206. 301. 
 Pickler v. Rainej-, 135, 308, 310, 
 
 313, 408. 
 Picquet v. Swan, 10, 27, 59, 153, 
 
 170, 181, 233, 378. 
 Pierce v. Carleton, 35, 48, 225, 
 226, 314. 
 V. Chica.?o & N. W. Ry. Co., 
 
 83, 85, 106, 182, 204. 
 V. .laclison, 156. 
 V. O'Brien, 68. 
 Pierson v. ilcCahill, 199. 
 
 V. Weller, 177. 
 Pike V. Lytle, 268. 
 Pine V. Shannon, 127. 
 Pioneer Printing Go. v. Sanborn, 
 
 181, 314. 
 Piper V. Hanley. 1(!2. 
 Plant V. Mutual Life Ins. Go.. 
 
 294, 298, 300, 301, 309. 
 Planters' & Mei'chants' Bank v. 
 
 Leavens, 111, 300. 
 Platen v. Byck, 381, 386. 
 Piatt V. Brown, 188, 194. 
 
 V. Sauk Co. Bank, 353, 355, 
 389. 
 Plimpton V. Bigelow, 17, 109, 111, 
 
 242. 
 Plummer v. Rundlett, 177, 313. 
 Pollard V. Ross, 27. 
 Pollock V. .Jones, :!, 57, 373. 
 Pomeroy v. Baud, McNally & 
 Go., 9. 00, 69, 212, 235, 243, 278, 
 392. 
 Pomroy v. Parmlee, 56. 
 Poole V. Carhart, 72, 348. 
 
 V. Thatcherdeft, 326, 328. 
 Poor V. Golburn, 369. 
 Pope's Ex'r v. Elliott, 59. 
 Porter v. Giles, 321, 
 
 Porter v. Navin, 84, 92. 
 
 V. Stevens, 180, 312, 369. 
 V. Wakefield, 41. 
 V. West, 335. 
 Porter & Blair Hardware Co. v. 
 
 Perdue, 6, 13, IS, 23. 
 Post V. Bowen, 387. 
 
 V. Love, 27. 
 Potter V. Cain, 63. 
 V. Sanborn, 275. 
 V. Stephens, 180. 
 Pounds V. Hamner, 2, 204, 2i:!. 
 Powell V. Sammons, 378. 
 Pratt V. Albright, 2, 3, 326, 328. 
 V. GunllfC, 225. 
 V. Sanborn. 260, 266, 26S. 
 V. Scott. .5(1. 
 V. Young, 185, 236. 
 Prentiss v. Dauaher, 190, 191. 
 289. 
 V. Pleasonton, 59. 
 Prescott V. Hull, 20; i. 
 V. Parker, 138, 144. 
 President, etc.. Union Turnpike 
 
 Go. V. Jenkius, 7, IG. 
 Prestwood v. Tillis, 408. 
 Price V. Brady, i:!3, 163. 
 V. Thompson. 408. 
 V. JMazange, 289. 
 Priuee v. Heeuan, .50, 24.!. 2.50, 
 
 254, 256, 291, 405. 
 Pritchard v. Toole, 18.S. 
 Proctor V. Grecu, 314. 
 V. Lane, 76, 204. 
 V. Lewis, 272. 
 Proseus v. ilason, 295. :')S5. 
 Prout V. Grout, 133, 398. 408, 40'.t. 
 Providence lust, for Savings v. 
 
 Barr, 178, 204. 
 Providence iV: S. S. Go. v. Vir- 
 ginia, F. & M. Ins. Co., 25. 
 PufC V. Hutcher. 40V. 
 Puffer V. Graves, 212. 
 Puget Sound Dressed Beef & 
 
 Packing Go. v. .Teffs. 98. 
 Puget Sound Xat. Bank v. Math- 
 er, 109, 165. 
 PuUeu V. Monk, 94. 
 
CASES CITED. 
 
 lix 
 
 [The figures refer to sections.] 
 
 PuUiam v. AUer, 270, 279. 
 Pullis V. Pox. 157. 
 Pundt V. Clary, 46, 48. 
 Purcell V. Mather, 78. 
 Pursell V. Pappenheimer, 120. 
 Purves V. Lex, 257, 269. 
 Putney v. Farnham, 44. 
 
 Q 
 
 Quarles v. Porter, 132, 2.j9 
 Quigg V. Kittredge, 46, 141. 
 Quillen v. Arnold, 322. 
 Quinn v. Blanek, 314, 372. 
 
 Raignell v. McConnell, 104. 
 Railroad Co. v. Todd, 224, 220, 
 
 269, 385. 
 Rainey v. Maas, 17. 
 Rand v. White Mt. Ry. Co., 148. 
 Randall v. Way, 204, 215. 
 Randolph Bank v. Armstrong, OS, 
 
 348. 
 Randolph v. Heaslip, 317, 398. 
 V. Little, 84, 396, 397, 408. 
 Rankin v. Simonds, 127, 288, 313, 
 
 378, 395, 408. 
 Ransom v. Hays, 151. 
 V. Stanberi'y, 116. 
 Rasmussen v. McCabe, 110, 21; i, 
 
 214, 215, 220, 251, 252. 393, 395. 
 Ray V. Faulkner. 72. 
 
 V. Underwood, 15. 
 Raymond v. Narra.gansett Tin- 
 ware Co., 0, 181. 
 V. Rockland Co., 271, 273, 2811. 
 Raynes v. Lowell Irish Ben. Soc. 
 
 57. 
 Raynolds v. Hanna, 59. 
 Reagen v. Pacific Ry. Co., 309. 
 Recht V. Kelly, 80. 
 Rector v. Drury, 215, 220, 226. 
 Red V. Powers, 59, 120, 126. 
 
 Reddick v. Smith, 27. 
 
 Redondo Beach Co. v. Brewer, 
 
 154. 
 Reed v. Fletcher, 188, 193, 194, 
 231, 280. 
 
 V. Penrose, 371. 
 Reese's Appeal, 193. 
 Reeve v. Smith, 60, 188. 
 Reeves v. Cooper, 187. 
 
 V. Harrington, 374. 
 Relfsnyder v. Lee, 56. 
 Reinhart v. Empire Soap Co., 183. 
 Renier v. Hurlbut. 15, 145. 
 Renneker v. Davis, 194. 
 Rennell v. Kimball, 140. 
 Reynolds v. Collins, 2(j8, 270, 342, 
 348, 349. 
 
 V. Haines, 9». 
 
 V. Howell, 381. 
 Rhode Island Exch. Bank v. 
 
 Hawkins, 380. 
 Rice V. Jones, 138, 184, 204, 3:!0. 
 333, 341. 
 
 V. Third Nat. Bank, 48, 61. 
 
 V. Talmadge, 115. 
 
 V. Whitney, 48. 301, 312, 317, 
 391. 
 Rich V. Soules, 319, 320, 322. 
 
 V. Waters, 118. 
 Richards v. Griggs, 35. 2()."). 
 
 V. Smith, 409. 
 
 V. Stephenson, 314. 
 
 V. Storer, 322. 
 Richardson v. Anderson, ."iC. 
 
 V. Gurney, 39. 
 
 V. Hickman, 213, 215, 407. 
 
 V. Lacey, 40. 
 
 V. Lester, 40. 
 
 V. Rogers, 77, 81, 348. 
 
 V. White, 292. 
 
 V. Whitetield, 272. 
 Richmond v. Dreybous, 270. 
 Riley v. Hirst, 30, 46. 
 
 V. Hitzler, 88. 
 Rindge v. Green, 6, 13, 15. 
 Ringold V. Suiter, 0, 49, 303. 
 Rio Grande Ry. Co. v. Gomila, 
 145. 
 
Ix 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Ripley v. People's Sav. Bank, 157, 
 34S. 
 
 V. Severance, 177, 312, 315, 
 378, 379. 
 Rippen v. Sclioen, 3(50. 
 Rischert v. Kuntz. 185. 
 RisewlclJ V. Davis, 7. 
 Risley v. Welles, 177. 
 Risser v. Ratliburn, 76, 139, 372. 
 Kix V. Elliott, 201. 
 Roberts v, Austin, 71. 
 
 V. Barry, 355, 3S5. 
 
 V. Drinkard. 118. 
 
 V. Landecker. 0, 9, 185, 192, 
 298. 299, 317. 
 Robertson v. Baker, 205. 
 
 V. Beall, 35. 
 
 V. Roberts, 213. 
 Robeson v. Carpenter, 212. 
 Robins v. Bacon, 70. 
 Robinson v. Baker, 66. 
 
 V. Hall, 49, 03. 
 
 V. Howard, 27, 56. 
 
 V. Mason, 400. 
 
 V. Mitchell, 129. 
 
 V. Rapelye, 313. 
 
 V. Smith, 77. 398. 
 
 V. Starr, 385. 
 
 V. Tevis, 159. 
 
 V. Trofitter, 41. 
 Robion v. Walker, 99. 
 Robison v. Saunder, Kibben <& 
 
 Co., 409. 
 Roche V. Rhode Island Ins. Ass'n. 
 
 17, 100. 
 Rochereau v. Guidry, 210. 
 Rock V. Singmaster, 277, 279. 
 Rock Island Lumber & Manuf'g 
 Co. V. Equitable Trust & luv. 
 Co., 46. 48, 01. 
 Rodes V. Haynes. 60. 
 Rodman v. Musselman, 18. 
 Rogers, State ex rel., v. .Judge of 
 
 County Court, 133, 203, 333. 
 Roig V. Tim, 379. 
 Rollins V. Allison, 84, 397. 
 
 V. Robinson, 381. 
 Rollo V. Andes Ins. Co., 25. 
 
 Rome R. Co. v. Richmond & D. 
 
 R. Co., 321, 399. 
 Ronan v. Dewes, 192. 378. 
 Root V. Davis, 154, 171, 213. 
 Roquest v. The B. E. Clark, 308. 
 Rose V. VVhaley, 290, 385, 380. 
 Rosenberg v. First Xat. Bank of 
 
 Texarkana, 273, 378. 
 Rosenthal v. Muskegon Circuit 
 .Judge, 161, 167. 
 
 V. Mastin Bank, 71. 
 Ross V. Austin, 138. 
 
 V. Bourne, 95. 
 
 V. Clarke, 27. 
 
 V. Heintzen, 127. 
 
 V. Pitts, 202. 
 
 V. Ross, 111. 
 Rothschild v. Burton, 8, 10, 178, 
 195, 204, 330, 341. 
 
 V. Hasbrouck, 27, 75. 
 Rowell V. Pelker, 120, 123, 124, 
 
 315, 340, 379. 
 Rowlett V. Lane, 226, 407. 
 Roy V. Heard, 278. 
 Royer v. Fleming, 191. 
 Rozelle v. Rhodes, 99. 
 Ruby V. Schee, 354, 357, 359, 372. 
 Rudd V. Paine, 188. 
 Rute V. Ruff, 212. 
 Rummery v. McCuUock, 375. 
 Rundlet v. Jordan, 150, 164. 
 Runnell v. Kimball, 140. 
 Rupke V. Meador, 404. 
 Rushton V. Howe, 139. 
 Russell V. Arnold, 91. 
 
 V. Clingau, 118. 
 
 V. Freed men's Sav. Bank, 290, 
 386. 
 
 V. Hinton, 370. 
 
 V. Lewis, 177, 291. 
 
 V. Ralph, 250, 251, 254. 
 
 V. Thayer, 342, 345. 
 Rutherford v. FuUerton, 57, 206, 
 
 301, 330. 
 Rutter V. Shumway, 99, 409. 
 Ryan v. VVynkoop, 154, 159. 
 Ryegate, Town of, v. Town of 
 Wardsboro, 14. 
 
CASES CITED. 
 
 Ixi 
 
 [The figures refer to sections.] 
 
 S 
 
 Sabin v. Bank of Woodstock, 110. 
 V. Cooper, 120, 144, 251, 2U2. 
 V. Michel!, 52, OS, 27'J. 
 Sadler v. Trustees, 279. 
 Safford v. Maxwell, 144. 
 Sage V. St. Paul, S. & T. F. Uy. 
 
 Co., 13. 
 St. Clair v. Cox, 233. 
 St. Joseph Manuf'g Co. v. Mil- 
 ler. 150. 
 St. Louis, The, 204. 
 St. Louis V, Kegenfuss, 40, 379. 
 St. Louis Brokerage Co. v. Cronin, 
 
 78, 308. 
 St. Louis, 1. M. & S. Ry. Co. v 
 
 Richter, 144, 102, 100, 200, 202, 
 
 354, 387, 391. 
 St. Louis Perpetual lus. Co. v. 
 
 Cohen, 10, 129, 220. 
 Sailer v. Insurance Co. of North 
 
 America, 333, 350. 
 Sampson v. Hyde, 312, 378. 
 Sanborn v. Ward, 74. 
 Sanchez v. Carriaga, 144. 
 Sandblast File-Sharpening Co. v. 
 
 Parsons, 121. 
 Sandburg v. Papineau, 144, 202, 
 
 213. 
 Sanders v. Miller, 209, 357. 
 
 V. Page, 343. 
 Sands v. Mathews, 71. 
 Sanford v. Bliss, 40, 177. 
 Sanger v. Flow, 348. 
 
 V. Guenther, 81, 174. 370, 373. 
 Sanghuessy v. Fogg, 291. 
 Sangster v. Butt, 210, 219, 220, 
 
 201. 
 Banner v. Shivers, 91. 
 Sapp V. McArdle, 31. 
 Sargeant v. Leland, 103. 
 
 V. Andrews, 208. 
 Sargent v. Wood, 131, 192. 
 Sarlouls v. Freemen's Ins. Co. of 
 
 Baltimore, 387. 
 Saugnessy v. Fogg, 201. 
 Saunders v. Camp, 408. 
 
 Sauer v. Nevadaville, IS, 48, 127. 
 
 Savage's Case, 208. 
 
 Sayers v. Kent, 75. 
 
 Saylor \. Bushong, 71. 
 
 Sayward v. Drew, 118, 120, 120. 
 
 Sawyer v. Thompson, 15, 242. 
 
 v. Webb, 292. 
 Scales V. Swan, 299, 307. 
 Scamorhorn v. Scott, 202, 307, 310. 
 Schafer v. Vizena, 01, 314. 
 Schalenburg, Ex parte, 14. 
 Schaller v. Ivurtz, 88, 102. 
 Schatzill V. Boltou, 159. 
 Schempp v. Fry, 200. 
 Scheuber v. Simmons, 68, 309. 
 Schindler v. Smith, 271, 2^2,277. 
 Schlitz v. Meyer, 251. 
 Schmidlapp v. La Contiance Ins. 
 
 Co., 17. 
 Schneider v. Lee, 75, 153. 
 Scholefleld v. Bradlee, 194. . 
 School Dist. of iMarathon v. Gage, 
 
 18, 23, 213. 
 Schoomeld v. Hirsh, GO, 66, 68. 
 Schuerman v. Foster, 45, 101. 
 Schuler v. Israel, 4S, 379. 
 Schurlock v Gulf, C. & S. F. Ry. 
 
 Co., 6, 8, 251, 253. 
 Schwab V. Gingerick, 288, 372. 
 Schwerin v. De (3 raff, 397. 
 Scofleld V. Sanders. 175. 
 
 V. White, 38, 164. 
 Scott V. Brigham, 97. 
 
 V. Hill, 132. 
 
 V. Ray, 312. 
 
 V. Rohman, 144, 145. 
 
 V. Stallsworth, 342, 344, 348. 
 
 V. Windham, 114, 188, 394, 
 390. 
 Seals V. Ualloway, 351, 381. 
 Seaman v. Bank, 299, 380. 
 Seamans v. King, 407. 
 Searing v. Benton, 57, 233. 
 Sears v. Thompson, 5, 7, 47, 153, 
 
 358, 303. 
 Seaton v. Hamilton, 236. 
 
 V. Marshall, 88. 
 Sebor v. Armstrong, 312. 
 
Ixii 
 
 LAW OP GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Second Nat. Bank of St. Paul v. 
 
 Schranck, 77. 
 Second Nat. Bank of Winona v. 
 
 Donald, 348. 
 Secor V. Witter, 48, 49, 126, 133, 
 
 136, 137, 102, 354, 391. 
 Security Loan Ass'n v. Woems, 
 
 333, 356, 384. 
 Segar v. Muskegon Shingle & 
 
 Lumber Co., 2, 225, 226, 2.38, 
 
 275, 279, 286, 375. 
 Segee v. Downes, 345. 
 Segog V. Engle, 211. 
 Seider's Appeal, 89. 
 Self V. Kirkland, 379. 
 Selman v. Orr, 307, 387, 395. 
 Selma R. & D. Ry. Co. v. Ty- 
 son, 17. 
 Selheimer v. Elder, 150. 
 Seligmann v. Heller Bros.' Clotb- 
 
 ing Co., 93. 
 Selz V. First Nat. Bank of Ft. 
 
 Atkinson, 360, 383, 397, 399, 400. 
 Semiues v. Patterson, 2(iU, 278, 
 
 279. 
 Senior v. Brogan, 397, 400. 
 Sessions v. Stevens, 208. 
 Sevier v. Throckmorton, 289, 369, 
 Sewall V. Franklin, 319. 
 Seward v. Arms, 303, 314. 
 V. Garlin, 131. 
 V. Heflin, 204, 205, 206, 217. 
 Sexton V. Amos, 181, 303, 312, 315. 
 Seymore v. Over River School 
 Dist., 18. 
 
 • V. Sturgess, 113. 
 Seymour v. Cooper, 49, 125. 
 
 V. Kramer, 177. 
 Shadbolt & Boyd Iron Co. v. 
 
 Camp, 369. 
 Shafer Iron Co. v. Stone, Circuit 
 
 Judge of Iron Co., 6, 273, 299, 
 
 300. 
 Shahan v. Talhnan, 139. 354, 369. 
 Sharp V. Clark, 27. 
 Sharpe v. Wharton, 145, 208. 
 Shattuck V. Smith, 47, 351. 
 
 Shaver Wagon & Carriage Co. v. 
 
 Halsted, 46, 153, 167, 188, 193. 
 Shaw V. Bunker, 292, 301, 303, 
 
 312. 
 Shealy v. Toole, 199, 200. 
 Shearer v. Handy, 315. 
 Sheedy v. Second Nat. Bank, 157. 
 Sheehan v. Marston, 34S. 
 Sheets v. Culver, 133. 
 Sheffield v. Barber, 188, 261. 
 Sheldon v. Hinton, 340, 348. 
 
 V. Simouds, 376. 
 Shelly V. Smith, 89, 90. 
 Shelters v. Bourdeau, 272. 
 Shenandoah Val. Ey. Co. v. Grif- 
 fith, 111. 
 Shepherd v. Bridenstine, 40. 
 Sheppard v. Buford, 341. 
 
 V. Cape Girardeau Co., 18. 
 Sheppard & Co. v. Downing, 409. 
 Sheriff of Fayette v. Buckner, 
 
 126. 
 Sherman v. Cohen, 387, 393, 4(12. 
 Sherrod v. Davis, 407. 
 Sherwood v. Stevenson, 2, 237, 
 
 409. 
 Sheters v. Bordeau, 272. 
 Shetler v. Thomas, 129. 
 Shewell v. Keen, 27. 
 Shinn v. Zimmerman, 144, 145. 
 Shoemaker v. Katz, 44. 
 Short V. Moore, 27. 
 Shrewsbury v. Tufts, 145. 
 Shuler v. Bryson, 134. 135. 
 Sibert v. Humphries, 27. 
 Sibley v. Johnson, 343. 
 Sickman v. Abernathy, 75. 
 
 V. Lapsley, 142. 
 Sievers v. Woodburn Sarven 
 Wheel Co., 6, 8, 13, 27, 68, 145. 
 Silverman v. Kuhn, 317. 
 Simmons v. Carmichael, 59, 130, 
 137a, 162. 
 
 V. Vandegrift, 144. 
 Simon v. Ash, 292, .309. 
 Simonds v. Harris, 31. 
 Simpson v. Reynolds, 112. 
 
 V. Tippin, 333. 
 
CASES CITED. 
 
 Ixiii 
 
 [The fisuves refer to sections.] 
 
 Sims V. Goettle, 335. 
 Sinard v. iJleason, 40.'!, 40S. 
 Singer Manuf'g Co. v. Fleming, 
 
 102, 246. 
 Singer v. Townsend, 157, 355. 
 Siwinickson v. Painter, 31. 
 Skelly V. Westminister Scbool 
 Dist, 18, 23, 202, 213, 21S, 21'J. 
 Skinner v. Chadwell, 97. 
 
 V. Moore, 133. 
 Skipper v. Foster, 144. 
 Skowhegan Bank v. Cutler, 110. 
 
 V. Farrar, 1G4. 
 Slatter v. Tiermau. 3S2. 
 SmalUy v. Miller, 52, 53. 
 Smitli V. Ainscow. 204, 20G. 
 
 V. Baltchford, 128. 199, 207. 
 
 V. Barclay, 341, 342, 346, 34S. 
 
 V. Barker, 143. 
 
 T. Boston, C. & M. Ry. Co., 
 17, 49, 378. 
 
 V. Brooke, 90, 91. 
 
 V. Brown, 310, 409. 
 
 V. Cahoon, 123. 159, 
 
 V. Carroll, 144, 197, 200. 
 
 V. Chapman, 117, 409. 
 
 V. Chicago & N. W. Ry. Co., 
 84, 315. 
 
 V. Clarke, 46, 48, 57, 06, 175. 
 
 314, 317, 369. 
 
 V. Clinton Bridge Co., 194. 
 V. Conrad, 3, 6, 352, 355. 
 V. Davis. 44, 63, 64, 116, 183. 
 V. Dickson, 2, 85, 217, 236, 
 
 258, 280, 326. 
 T. Downey, 109, 165. 
 V. Eaton, 15. 
 V. Finlen, 19. 
 V. Flanders, 140. 
 V. Force, 268. 
 V. German Bank, 138. 
 V. Getiinger, 189. 
 \. Gower, 317, 387. 
 V. Heidecker, 289. 
 V. Holland, 6, 66, 307, 314, 
 
 315, 333. 
 
 V. Johnson, 86, 91. 
 
 Smitli V. Kansas City, St. J. & C. 
 B. Ry. Co., 407. 
 
 V. Kennebec & P. Ry. Co., 
 164. 
 
 V. McCutchen, 225. 
 
 V. Menominee Circuit .Judge, 
 172, 174, 175, 317. 
 
 V. .Millett, 46, 68, 3.54. 
 
 V. Montoya, 225, 385. 
 
 V. JIulhern, 237. 
 
 V. Ratcliff, 98. 
 
 V. Stearns, 49, 379. 
 
 V. Stratton, 46, 212. 
 
 v. Traders' Nat. Bank, 111, 
 16.5, 171. 
 
 V. ^^'eaver, 174. 
 
 V. ^^'ellborn, 3li0. 
 
 V. Wiley, 167. 177. 
 
 V. Woolsey, 19. 
 
 V. Yale, 208. 
 Smoot V. Eslava, 204. 
 
 V. Hart, 13. 
 
 V. Ketchum, 204. 
 Smyth V. Ripley, 81, 316, 371. 
 Snell V. Crowe. 158. 
 Snider v. Ridgway, 1.!;!, 134. 
 Snook V. Snetzer, lO.'i. 
 Snyder v. Brune. 94. 
 Solomons v. Ro.ss, 210. 
 Somers v. Keliher, 90. 
 
 V. Losey, 202, 209, 218, 317. 
 Somerville v. Brown, 132, 202. 
 Sommer v. Gilmore, 349, 372. 
 Soule V. Kennebec Maine Ice Co., 
 
 310, 378. 
 Southern Bk. v. McDonald, 268. 
 South iV N. A. Ry. Co. V. Falk- 
 
 ner, 91. 
 South Omaha Nat. Bank v. Farm- 
 ers' & MiHThant.f' Nat. Bank, 
 237. 
 Spafford v. Page, 204, 205, 215. 
 Spalding v. Imlay, 19. 
 Speak T. Kinsey, 262, 272, 396, 
 
 397. 
 Spear v. Rood, 79, 80, 81. 
 ^liears v. Chapman. 181, 314. 
 Speed V. Brown, 24. 
 
Ixiv 
 
 LAW OP GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Speed V. Cocke, 384. 
 
 V. Holmes, 343, 372. 
 Speight V. Brocls, 129. 
 Spelman v. Aldricii, 90, 99. 
 Spencer v. Moran, 173, 174, 369, 
 373, 409. 
 
 V. School Dist. No. 17 of War- 
 wick, 18. 
 Sppngler v. Kaufman, 88. 
 Sperling v. Calfee, 13, 402. 
 Spicer v. Spicer, 143, 199. 
 Spitz V. Tripp, 52, 175. 
 Spooner v. Rowland, 49. 
 Sprague v. Hartford, B. & L. Ry. 
 Co., 17. 
 
 V. Steam Nav. Co., 42. 
 Sproul V. McCoy, !I2. 
 Spruill V. Trader, 212. 
 Squair v. Shea, 13. 
 Stackpole v. Newman, 303, 313. 
 Stadler v. Prairie Lodge, 229, 279. 
 Stadler Bros. & Co. v. Parmlee, 
 
 116, 393, 396. 
 Stahl V. Webster, 51, 390, 392, 
 
 395, 396. 
 Standard Wagon Co. v. Lowry, 
 
 183. 
 Staniels v. Raymond, 14, 54, 82, 
 
 85. 151. 
 Stanton v. Embry, 201. 
 Staples V. Staples, 36, 46, 3:J3. 
 Stark V. Bare, 102. 
 Starr v. Carringtou, 8, 46. 
 
 V. Tracy, 188. 
 Starry v. Koral), 372. 
 State V. Barada, 84. 
 
 V. Bick, 397. 
 
 v. Cobb, 91. 
 
 V. Dittmar, 102. 
 
 V. Eberly, 18. 
 
 V. Finn, 88. 
 
 V. Geddis, 97. 
 
 V. Kane, 88. 
 
 V. Linaweaver, 194, 272. 
 State ex rel. Austrian v. Duncan, 
 5, 6,190, 213, 238,25.5,271. 
 
 Hardy t. Gleason. 291. 
 
 Lewis V. Barnett, 84. 
 
 State ex rel. Madison v. Judge, 
 84, 317. 
 Bieschick v. Cunningham, 407. 
 Rogers v. Judge of County 
 
 Court, 133, 333. 
 State Bank v. Hastings, 70, 
 Weber v. Cordes, 3, 232. 
 State Ins. Co. v. Sax, 110. 
 State Nat. Bank v. Allen, 235. 
 V, Boatner, 7, 192, 291, 292, 
 
 308, 333, 383. 
 V. Ullmeyer, 291. 
 State Sav. Bank of Detroit v. 
 Wayne Circuit Judge, 185, 248, 
 2.52, 264, 3-53. 
 Stearns v. \\'risley. 67, 209. 
 Stebbins v. Peeler, 98. 
 Stedman v. Vickery. 1.53, 177, 
 
 192, 310, 378. 
 Steel V. Goodwin, 66, 267. 
 Steele v. McKerrilian, 98. 
 Steen v. Norton, 3, 5, 178, 192. 
 231. 238. 247, 251, 253, 255, 258. 
 271, 278, 378. 
 Steib V. Whitehead, .59. 
 Stein V. Hermann, 79, 80. 
 V. La Dow, 45, 77. 
 V. Seaton, 342, 343. 
 Steiner v. Central Ky. Co., 273, 
 
 277. 
 Stephenson v. Campbell, 2.58. 
 Sternier v. Board of Com'rs of 
 
 La Plata Co., 18, 23. 
 Stern v. Frasser Circuit Judge. 
 
 237. 
 Stevehot v. E!astein Ry. Co., 37, 
 
 240. 
 Stevens v. Barringer, 138, 142. 
 V. Brown, 101. 
 V. Dillman, SO, 1(!5, 192, 204, 
 
 253, 207. 
 V. Gilliman, 204. 
 V. Guathmey, 139, 372. 
 V. Kirk, 177. 
 V. Perry, 1,55, 188. 
 V. Pugh, 134. 
 Stewart v. Dobbs, 319. 
 V. Thompson, 102. 
 
CASES CITED. 
 
 Ixv 
 
 [The figures refer to sections.] 
 
 Stewart v. Walters, 352, 367. 
 
 y. West, 12(!, 132. 
 Stickley v. Little, 251, 293, 392. 
 Sticliney v. Crane, 44, 76, 77. 
 Stiles V. Davis, 37, 180, 194. 
 Still V. Harmon, 31. 
 Stille V. Layton, 215, 217. 
 Stillings V. Young, 157. 
 Stillman v. Isliam, 19. 
 Stimpson v. Maiden, 213. 
 Stocliberger v. Lindsey, 209, 290, 
 
 387, 397. 
 Stockton V. City of Burlington, 
 310, 409. 
 
 V. Hall, 206. 
 Stockwell V. Silloway, 350. 
 Stone V. Dean, 130, 155. 
 
 V. Elliott, 136, 137. 
 
 V. Mutual Fire Ins. Co., 62. 
 Storm V. Adams, 28, 35, 226. 
 
 V. Cotzhausen, 9, 165, 166, 402. 
 Stout V. La Follette, 27. 
 Stratton v. Ham, 28. 
 Strauss v. Ayers, 212. 
 
 V. Railway, Co., 118. 
 Streissguth v. Reigelman, 224, 
 
 250, 364, 385. 
 Strickland v. Maddox, 405. 
 Strong V. Barlow, 7. 
 
 V. Bass, 378. 
 
 V. Hollon, 2, 357, 364, 369, 370, 
 892, 398. 
 
 V. Mitcbell, 377, 379. 
 
 V. Smith, 5, 192. 
 Stubblefield v. Hagerty, 408. 
 Stuckey v. McKibbon, 27. 
 Sturges V. Kendall. 384, 385. 
 Sturtevant v. Robinson, 45, 60, 
 
 65, 378. 
 Sullivan v. Hadley Co., 95. 
 
 V. Langley, 267. 
 Suiter V. Brooks, 404. 
 Summers v. Oberndorf, 375. 
 Sun Mutual Ins. Co. v. Seeligson, 
 
 260, 277, 278, 385, 388, 395. 
 Sutherland v. Burrill, 181, 298, 
 309, 372. 
 
 V. Peoria Second Nat. Bk., 240. 
 
 LAW GARNISH.— e 
 
 Sutro V. Bigelow, 161, 318, 321, 
 
 322, 324. 
 Sutton V. Hasey, 76, 185, 186, 393. 
 Suydam v. Huggeford, 7, 381, 407. 
 Swaggerty v. Sneed, 3. 
 Swan V. Crafts, 68. 
 
 V. Summers, 151. 
 Swayne v. Chase, 98. 
 Swearingen v. Wilson, 313, 355. 
 Swe>>ney v. Hunter, 102. 
 Sweeny v. Allen, 144. 
 Sweet V. Oliver, 193, 331. 
 
 v. Read, 157, 181, 294. 
 Sweetzer v. Claflin, 27. 
 Swett V. Brown, 55, 174, 188, 194. 
 
 V. Ordway, 377. 
 Switzer v. Wellington, 18, 23. 
 Sydnor v. City of Galveston, 89. 
 
 T 
 
 Taber v. Nye, 121. 
 
 Tabor v. Van Vranken, 70, 182, 
 
 208, 218. 
 Talbot V. Harding, 188. 
 
 V. Tarlton, 392, 398. 
 Talladega Mercantile Co. v. Mc- 
 Donald, 295, 296. 384, 390. 
 Tamm v. Williams, 15. 
 Tarns V. Bullitt, 212. 
 Tapp V. Green, 310. 
 Tate V. Morehead, 381. 
 
 V. Salmon. 26. 
 Tatnum v. Zachry, 89. 
 Taylor v. Allen, 235. 
 
 V. Brunswick, 407. 
 
 v. Burlington & M. Ry. Co., 
 7, 16, 61, 138. 
 
 V. Gardner, 379. 
 
 V. Gillian, 27, 164. 
 
 V. Huey, 164, 369. 
 
 V. Kain, 309, 372. 
 
 V. Lynch, 74. 
 
 V. Phelps, 202. 
 Tazewell v. Barrett & Co., 138. 
 Teager v. Landsley, 103. 
 
Ixvi 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Teasue v. Le Grand. 113, 12G, 
 
 153, 154, 192. 
 Teiclmian Commission Co. v. 
 
 American Bli., 343. 
 Telles V. Lynde, 104, 202, 215. 
 Templeman v. Fauntleroy, l.SS. 
 Terre Haute & I. Ky. Co. v. Balc- 
 
 er, S3, So, 106, 213. 
 Terry v. Hughes, 40(3. 
 
 v. Lindsay, 28. 
 
 V. Sisson, 206. ' 
 
 Thayer v. Kelley, 74. 
 
 V. Lyman, 67. 
 
 T. Partridge, 4S, 379, 393. 
 
 V. Pratt, 143. 
 
 V. Ray, 208. 
 
 V. Sherman, 36, 46. 
 
 V. Southwick, l.j2. 
 
 V. Tyler, 27, 225. 
 Thomas v. Brown, 12, 45, Kil, 
 381. 
 
 V. l^uUer, 810. 
 
 V. (Hbbous, 49, 126 
 
 V. Hoffman, 293. 
 
 T. Hopper, 379. 
 
 V. Lusk, 157. 
 
 V. Parsons, 57. 
 
 V. Price, 373. 
 
 V. Sturges, 369. 
 
 V. Sprague, 06, 181. 
 
 V. Woolridge, 145. 
 Thompson v. Allen, 398. 
 
 V. Allison, 378. 
 
 V. Brofl-n. 27. 
 
 V. Carper, 236, 258. 
 
 V. Downing, 67. 
 
 V. Gainsville Nat. Bank, 133, 
 134, 135. 
 
 V. Lewis, 159. 
 
 V- Pennell, 78. 
 
 V. Keed. 348. 
 
 V. Shelby. 133. 
 
 V. Silvers, 41, 291, 299, 374. 
 
 V. Stewart, 141, 372, 373. 
 
 V. Taylor, 155. 
 Thorn V. Woodruff, 3, 27, 203. 
 ThorndiUe v. De Wolf, 123, 143, 
 102. 
 
 Thornton v. Bonham, 225. 
 Thoi-pe V. Preston, 49. 120. 
 Thrasher v. Buckingham? 144. 
 Threefoot v. Whittle, 307. 
 Throop Grain Gleaner Co. v. 
 
 Smith, 70, 75. 
 Thurber v. Blanck, 187. 
 Tiernay v. McGarrity, 74. 
 Tillinghast v. Johnson, 28, 193, 
 
 200. 
 Tillis V. Prestwood, 380, 388. 
 Tillotson V. Wolcott, 98. 
 Tim Y. Franklin, 40, 203, 204, 357, 
 
 406. 
 Timm v. Siegman, 5, 6, 133, 2.52, 
 
 3(J9. 
 Tinnnon? v. .Johnson, 127, 135, 
 
 392. 
 Tiudell V. Wall, 49, 192, 193. 
 Tingley v. Batemau, 15, 242. 
 Tinsley v. Savage, 2. 
 Tirrell v. Canady, 164. 
 Titcouib V. Seaver, 57. 
 Torbert v. Hayden, 171. 
 Todd V. Hall, 46. 
 
 V. McGravey, 369. 
 Toledo Sav. Bank v. .Johnston, 
 
 185, 376. 
 Toledo, Wabash & Western Ry. 
 Co. v. McNulty, 192. 
 V. Reynolds, 236, 237, 258, 268, 
 310 
 Toll V. Ivnight, 48, 396. 
 Tompkins Machine & Implement 
 
 Co. V. Schmidt, 273, 278. 
 Tousmere v. Buckland, 84. 
 Toothaker v, Allen, 301, 315. 
 Towle V. Wilder, 17. 
 Towne v. Leach, 157, 342, 346, 
 
 392. 
 Towner v. George, 293, 395. 
 Town of . (See name of 
 
 town. I 
 Town of Ryegate v. Town of 
 
 Wardsboro, 14. 
 Towusend v, Cass Circuit Judge, 
 
 6, 307. 314, 317, .",52, 400. 
 Tracy v. Horuhuckle, 20. 
 
CASES CITED. 
 
 Ixvii 
 
 [The figures refer to sections.] 
 
 Tracy v. McGarty, 07, 311. 
 Trader's Ins. Co. v. Cbase. SU, 
 
 95, 104, 145. 
 Tradesman's Bank v.Cresson, 379. 
 Travis v. Tartt, 2()_'. 
 Treadway v. Andrews, S, 263. 
 
 7. Treadway, 348. 
 Treadwell v. Brown, 154, 187, 2(j2. 
 Treat v. Dunliam, 407. 
 Tremper v. Brooks, 27, 29, 33. 
 Trenton Banking Co. v. Haver- 
 stock, 2.50. 
 Treusch v. Ottenberg, 76, 77, 79, 
 
 80. 
 Trickett v. Moore, 157, 158. 
 Triebel v. Colburu, 19, 57. 
 Trombly v. Clark, 143, 192, 199. 
 Trotter v. Leliigh Zinc <& Iron 
 
 Co.. 28, 144. 
 Trowbridge v. Means, 144. 
 Troyer v. Schweiser, 209, 215, 22ti, 
 
 407. 
 Truitt V. Caldwell, SI. 
 
 V. Grittin. 61, 270, 277, 279, 
 288, 313, 354. 
 Trunkey v. Crosby, 174. 181, 192, 
 
 282, 283, 372. 
 Trustees of Bacon Academy v. 
 
 De Wolf, 391. 
 Tubb V. Madding, 215. 
 Tucker v. Atkinson, 35. 
 
 V. Butts, 36. 
 
 V. White, 322. 
 Tunstall v. Means, 144. 
 
 V Worthington, 3, 179. 
 Tupper v. Chassel, 351. 
 Turbill's Case, 208, 218, 219. 
 Turner v. Burnell, 12. 
 
 V. Fendall, 27. 
 
 V. Rosseau, 357. 
 
 V. Sioux City & P. Ry. Co., 
 101. 
 Turpin v. Coates, 406. 
 Tuttle V. Gordon, 359. 
 Tweedy v. Bogart, 104, 165, 192. 
 
 V. Nichols, 354, 406. 
 Tyler v. Coolbaugh, 340, 357, 373. 
 Tyson v. Reynolds, 88. 
 
 U 
 
 Udall V. School Dist. Xo. 4., 212, 
 
 300. 
 TUlmeyer v. Ehrmann, 291. 
 UUman v. Eggert, 157. 
 Ulrich T. Hower, 95, 144, 197. 
 Ilnderhill v, Calhoun, 13. 
 United States Exp. Co. v. Bed- 
 bury, 260, 201, 386. 
 U. S. V. Graff, 12, 54. 
 V. Langton, 312. 
 v. Murdock, 26. 
 V. Robertson, 46. 
 U. S. ex. rel. Mudsill Min. Co. v. 
 
 Swan, 153, 406. 
 Union Bank v. Hanish, 203, 200. 
 
 215. 
 Union Bank of Rochester v. 
 
 Union Bank of Sandusky, 200. 
 
 391. 
 Union Pac. Ry. Co. v. Gibson, 
 40, 369: 
 v. Smersh, 84, 85, 86, 96, 207, 
 280, 334. 
 Universal Fire Ins. Co. v. Tabor, 
 
 113, 153. 
 Updegraff v. Spring, 140, 142. 
 Upham V. Xaylor. 157. 
 Uppinghouse v. Aluudel, 102. 
 Upton Y, .Johnston, 1.51. 
 Upton Manuf'g Co. v. Stewart, 
 
 273. 
 
 Vail V. Rowell. 20S, 279, 407. 
 A'an Amee v. Jackson, 59. 104. 
 Van Buskirk v. Hartford Ins. 
 Co., 66, 205. 
 
 V. Martin, 405. 
 Vanderhoof v. Halloway, 1S3, 
 313. 314. 
 
 T. McAffee, 314. 
 Van Fossen v. Anderson, 268. 
 Van Ness v. ilcLeod, 76, 194, 199. 
 Van Riswick v. Laraon, 34. 
 Vantine v. Morse. 31. 
 
LAW Oi" GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Van Vlcet v. Stratton, 1S3. 
 
 Van AVinkle v, Iowa. I. & S. F. 
 
 Co., 27, (iS. 
 A'ariun v. Sew Eus'land Jlut. 
 
 Ace. Ass'n, Srs, SKi. oS(J. 
 "S'aniell y. Speer. 2G0. 
 A'aughan v. Furlong, 304, 387. 
 "\'auglni V. Sherwood. 273. 
 Venable v. Kickenberg, .58. 
 A'ermilyea v. Roberts, 2ljii. 2G7. 
 Vernon y. tipson. 77. 
 Vicksburg & Jl. Ity. Co. v. Phil- 
 lips. ISo. 
 Victor V. Hartford Fire Ins. Co., 
 
 44. 40, 47, 183. 
 Vierheller y. Bruto, 27. 
 Vincent v. Wellington, 3ijl, 300, 
 
 384. 
 Vollnier v. Chicago & N. \V. Ry. 
 
 Co., 49, 01. 
 Voorhees y. Sessions, 27, 34. 
 Voorhies y. Denyer Hardware 
 
 Co., ol, 03, 200, .30U. 
 
 w 
 
 Wabash Ry. Co. v. Dougan, 88, 
 02, 100. 
 V. Seifert, 103. 
 Waco Lodge No. 70 v. Wheeler, 
 
 273. 
 Waco State Bank y. Stephenson 
 
 Manufg Co., HI, 348, ;!83. 
 AA'adleigh y. Pillsbury, 199. 
 Wad.sworth y. Clant, 143. 
 Waite y. Osborne, 27. 
 
 V. Franciola, 93. 
 Wakefield x. JIartin, GO. 
 AValcott y Keith 193. 194. 
 Walden v. Valient, 132. 
 Waldron y. Wilcox, 40. 
 Wales y. Clark, 2(l.S. 
 Wales & Son y. City of Musca- 
 tine, IS, 85, 374. 
 Walker v. Cook, 18, 21. 
 
 V. Detroit. G. H. & JI. Ry. 
 Co., 37, 181, .•!14. 
 
 Walker v. Gibbs. 120. 
 \. Tewksbury. 2(i4. 
 V. AA^allace, 398. 
 Wallace y. Blauchard, 372. 
 
 V. Walter Heywood Chair Co., 
 
 74. 
 V. Lawyer, 18. 
 
 V. McConnell, 14.j, 193, 198, 
 201. 
 Walling y. Miller, 00. 
 Walmer y. Shulenberger, 400. 
 A\'alsh V. Blackwell. 0. 
 
 y. Horine, 27. 98. 
 Walter A. Wood Mowing & Reap- 
 ing Mach. Co. y. Edwards, 237, 
 280, 293, 307, 309. 
 Walters v. Washington Ins. Co. 
 48, 205, 207, 218. 
 y. Western & A, R. Co., 381. 
 Ward y. County of Hartford, 18. 
 y. Goggan, OS. 
 y. Howard, 189. 
 V. Lampson, 53, 08. 
 y. Morrison, 12, 06, 205, 242. 
 V. Sherbondy, 174. 
 Warder v. Baker, 77, 174, 372, 
 A^'ardle y. Briggs, 200. 
 Ware v. Bucksport & B. Ry. Co., 
 279. 
 V. Gowen, 123. 
 y. Laird. 84, 319, 322. 
 Warne y. Kendall, 133, 353, 395. 
 Warner v. Perkius, 03, 272, 291, 
 
 308. 
 Warren, County of, v. Marcy. 137. 
 Warren v. Copelin, 00, 205, 20:». 
 y. Matthews, 188, 100, 317. 
 y. Moore, 373. 
 Washburn y. Clarkson, 397. 
 
 y. New York & Vt. Min. Co., 
 224, 230, 381. 
 AVasson y. Bownau, 307. 
 ■\A'aterbury v. Board of Com'rs 
 
 of Deer Lodge Co.. 18, 22. 
 Watkins v. Blatschiuski, 97. 
 y. Carson, 83. 
 y. Field, 370. 
 Watson V. Kane, 372, 402. 
 
CASES CITED. 
 
 Ixix 
 
 [The figures refer to sections.] 
 
 Watson V. 5Iontgomery, 309, 372. 
 
 V. Todtl. 85. 
 AVeanie v. Haynes, 400. 
 Weaver v. Cressiuan, 27, 30, 33, 
 185. 
 V. Davis, 32, 33. 
 V. Pickard, 37."). 
 V. Russell, 2li5. 
 Webb V. Holt, 99. 
 V. Lea, 12, 225. 
 V. Miller, 309. 
 Webber v. Bolte, 04, 122, 305. 
 
 V. Carter, 142, 382. 
 Webster v. City of Lowell, 85, 
 215, 403, 407. 
 V. Farnum, 335. 
 V. Gage, 312, 315. 
 V. McDaniel, 144. 
 T. Moranville, 67. 
 V. Randall, 05. 
 
 v. Steele, 13, 144, 153, 154, 
 392, 395. 
 Webster Wagon Co. v. Peterson. 
 
 46. 
 Weed V. Mirick, 174, 175, 317. 
 Weed Sewing Macli. Co. v. Bou- 
 
 telle, 17, 07, 174, 270. 
 Weeks v. Billings, 320, 328. 
 Weibler v. Ford, 308, 409. 
 Weil T. Posteu, 371. 
 
 V. Tyler, 117, 314. 
 Weimeister v. Manville, S, 10, 13, 
 250, 251. 
 V. Singer, 13, 236. 
 Weirich v, Scribner, 181, 314, 401. 
 Welch V. Pittsburgh, Ft. W. & 
 
 C. Ry. Co., 391, 403. 407. 
 Weller v. Weller, 379. 
 Wellover v. Soule, 181, 201, 207, 
 
 294. 
 Wells V. American Exp. Co., 5, 6, 
 37, 213, 220, 251, 255. 
 V. Mace, 379. 
 Welsh V. Blackwell, 310, 352, 357, 
 359, 367. 
 V. Noyes, 75, 405, 409. 
 Wentworth's Appeal, 89. 
 
 Wentworth v. Weymouth, 204, 
 205, 314, 315, 332. 
 
 V. Whittemore, 118. 
 West V. Harvey, 230, 237, 2.58, 
 209. 
 
 V. Piatt, 192, 207. 
 Western Ry. Co. v. Thornton, 1, 
 
 2, 37, 192, 240. 
 Westphal, Hinds & Co. v. Clark, 
 
 269, 297, 326, 328, 397. 
 West Side Bank v. Pugsley, 354, 
 
 391. 
 Wetherwax v. Paine, 216. 220, 
 
 235, 250, 253, 261, 301. 
 Wetter v. Rucker, 209, 210. 
 Weymouth v. Sanborn, 91. 
 Whalen v. Harrison, 18. 
 
 V. McMahon, 333, 334, 351. 
 Wheat V. Piatt City & Ft. D. Ry. 
 
 Co., 240. 
 Wheatly v. Strobe, 72, 347. 
 Wheeler v. Aldrich, 213. 
 
 V. Bowen, 31. 
 
 r. Day, 03, 04. 
 
 V. Emerson, 379, 380. 
 
 V. Smith, 35. 
 
 V. Winn, 128, 192, 202, 333. 
 Whetcroft v. Burfnrd, 371. 
 Whidden v. Drake, 18. 
 Whipple V. Cass, 189. 
 
 V. Robbing, 145, 205, 305. 
 Wliitcomb V. Atkins, 0, 213. 
 White V. Bird, 36, 291. 
 
 V. Casey, 226. 
 
 V. German Ins. Co., 208. 
 
 V. Fulghum, 98. 
 
 V. Hobart, 63, 84, 313. 
 
 V Jenkins, 59. 
 
 V. Kahn, 307, 313. 
 
 V. Kent Circuit .Judge, 218. 
 
 V. ICilgore, 350, 351, 397. 
 
 V. Ledyard, 381. 
 
 V. Lynch, 250. 
 
 V. Simpson, 8, 127, 154, 187, 
 193, 226. 
 
 V. Siiriugfleld Inst, for Sav- 
 ings, 206, 300. 
 
Ixx 
 
 LAW OF GARNISHMENT. 
 
 [Tbe figures refer to sections.] 
 
 White T. ■\'\'asliingtoii Scliool DIst, 
 40."). 
 
 V. ^■\'l^te, 59. 
 Whitehead v. Coleman, 27, 30. 
 
 V. Patterson, 321. 
 Whiteside v. Tunstall, 211. 
 Whitfield v. Stiles, 81, 288. 
 Whitmarth \. Richmond, 381. 
 Whitman v. Hunt, 301. 
 
 V. Keith, 3, 12, 13, 201, 272. 
 Whitney v. Dean, 170. 
 
 V. Kelley, 312. 315. 
 
 y. Lehmer, 270. 
 
 V. Munroe, 8, 159, 102. 
 Whitney-Holmes Organ Co. v. 
 
 Petitt, 153. 
 Whitworth v. Felton, 15.">, 299, 
 
 300. 
 Whoi-ley v. Railroad Co., 300. 
 Wickham v. South Shore Lumber 
 
 Co., 270, 273, 28.-), 280. 
 Wicks V. Branch Bank, 333. 
 Wight V. Hale, 207. 
 Wigwall V. Union Coal <Se Mining 
 
 Co., 85, 202, 204, 403. 
 Wilbur V. Plannery. 34. 
 Wilcox V. Mills. 392, 397. 
 Wilcus V. Kling, 122, 120. 
 Wild V. Ferguson, 20. 
 Wilder v. Bailey 27. 
 
 V. Eldredge, 38. 
 
 V. Ferguson, 91, 314, 3G9. 
 
 V. Shea, 42, 314. 
 
 V. ^^'eatherhead, 7, 180, 188, 
 192, 193. 
 Wildes V. Nahant Bank, 104. 
 Wile V. Cohu, 3, 5, 48, 53, '258, 
 
 204, 267, 271, 309. 
 Wilhelml v. Haffner, G(i, 301, 312. 
 Wilkinson v. Hall, 20."). 
 Willard y. Butler, 117. 
 
 V. Decatur, 34. 
 
 V. Sheafe, 118, 126. 
 
 V. Sturtevant, 303. 
 
 V. Sturm, 11, 107, 192, 201. 
 Willet V. Equitable Ins. Co., 15. 
 
 V. Price, 386. 
 Willes V. Pitkin, 28. 
 
 William Deering & Co. v. RufC- 
 
 ner, 91. 
 Williams v. Androscoggin Ry. 
 Co., 49. 
 
 V. Boardman, 21. 
 
 V. Brechler, 400. 
 
 V. Gage, 154. 
 
 V. Gallick, 153, 170, 173, 22H. 
 
 V. Housel 40, 61, 190, 312, 
 369, 398. 
 
 V. International Grain & Stock 
 Board, 250, 260, 205. 
 
 V. Jones, 33, 313. 
 
 V. Kenney, 49. 
 
 V. Link, 91. 
 
 V. Marston, 118. 
 
 V. Minneaijolis & St. P. Ry. 
 Co., 60. 
 
 V. Pomeroy, 340. 
 
 V. Reed, 151. 
 
 T. Van Metre, 258, 316, 346, 
 387, 388. 
 
 V. Williams, 281, 282, 283. 
 
 V. Young, 291, 369. 
 Williamson v. Gayle, 174, 378. 
 Willing V. Consequa, 39, 138, 139. 
 Willis V. Heath. 133, 397. 399. 
 
 V. Holmes, 315, 373, 3S9. 
 
 V. Lyman, 6, 250. 
 
 V. Murphy, 08. 
 Willmarth v. Richmond, 381. 
 \A"ilson V. Albright, 126, 130, l:;3, 
 163, 261, 409. 
 
 V. Bank of Louisiana, 26, 3:i4. 
 
 V. Bartholomew, 82, 85, 403. 
 
 V. Burney, 210. 
 
 V. Chichester, 331. 
 
 V. Circuit Judge. 13. 
 
 V. Groelle, 184, 206. 
 
 V. Hanson, 348. 
 
 V. Joseph, 103. 
 
 V. Ijewis, 18, 20. 
 
 V. Jloutague, 169. 
 
 V. .Murphy, 199, 203. 
 
 V. Phillips, 380, 387. 
 
 V. W^ood, 164. 
 Wimer v. Pritchart. 335. 
 Winchell v. Allen, 27. 
 
CASES CITED. 
 
 lx> 
 
 [The figures refer to sections.] 
 
 AA'indfor v. McLaclilan, 98. 
 Wiiidwart v. Allen. 380. 
 Wins: V. Woodward, 8."il. 
 Winsate v. Nutter, .309, :!71. 
 AA'ius'fiekl v. McLure, 387. 
 AVinne v. Lenawee Circuit .Tudge, 
 
 •,m, :m, 40i. 
 
 Winder v. Hoyt, 81, 192, 27.5, 280, 
 281, 282, 283. 
 
 y. rritchartt, 33.j. 
 Winslow V. Benedict, 02. 
 
 T. Fletcher, 109, 1(54, in.",, 244. 
 Winsted Banlv v. Adams, 309. 
 AVinston y. Ewing, 1.j7, l.ls. 
 Winterfleld t. Milwaukee & St. 
 
 P. Ry. Co., 85. 
 Winthrop v. Carleton, 199. 200. 
 Wires v. Griswold, 283. 
 Withington y. Southworth, 27.">. 
 
 407. 
 Wise y. Rothschild, 282, 283. 
 
 V. Hilton, 203, 208. 
 Withers y. Puller. 38.5. 
 Witherspoon y. Baiber, 398. 
 Witmarth v. Richmond. 381. 
 Witte V. A'incenot, 133. 
 Witter y. Little, .57. 
 Wolcott V. I^neway Circuit 
 
 .Judge, 398, 399. 400. 
 AVolf y. Tappan. 13, 187, 402. 
 Wolff V. Vette, 33.5. 
 Wolford y. Farnuni. 41. 
 Wood V. Bodwell, 133. 
 
 y. Buxton, 118. 
 
 V. Edgar, 50. 
 
 V. Lake, 14.5, 196, 201. 
 
 V. Mann, 144. 
 
 y. Partridge, 118, 204, 314, 
 315, 332. 
 
 V. Rocchi, 23-5. 
 
 V. Wall, 49, 201, 292. 
 Woodbridge y. Holmes, 39. 
 
 y. Morse, 28, 40. 
 
 V. Perkins, 205. 
 
 T. Winthrop, 302, 371. 
 Woodfolk V. Whitworth, 225, 267. 
 Wooding V. Puget Sound Nat. 
 Rank, 3, 5(>,,293, 297, .382. 
 
 AVoodley v. Shirley, 12. 
 Woodlawu, Town of, y. Puryis. 
 
 200 219. 
 Wood Mowing & Reaping Mach. 
 Co. y. Edwards, 237, 2S(j, 21(3. 
 307, 309. 
 Woodruff y. Bacon, 139, 310. 
 y. Fellowes, 148. 
 V. French. 190. 
 y. McDonald Furniture Co., 
 
 12.5. 1.5.3. 
 y, Taylor, 5. 
 AVoodward y. Adams, 192, 318. 
 V. Herbert, 118. 
 y. Tupper, 379. 
 y. AA'oodward. 8, .59. 374. 
 V AA'yman, 7.5. 81, 177. 
 AA'ooster y. Page, il8. 
 AVooten y. Harris. 381. 
 Work y. Brown, 190, 205, 217, 301. 
 
 y, Glaskins, 13S. 
 Worthiugton y. Jones, 183, 292, 
 
 308. 
 AVright y, Boswell, 177. 
 
 y. Chicago, B. & Q. Ry. Co., 
 15, 17, 85, 92, 101, 242, 
 24(j. 
 y. Foord. 57. -WK 
 V. Swanson, 299. 
 AA^rigley y. Geyer. 117. 
 AA'yatt's Adm'r y. Bambo, 214, 
 
 246. 
 Wybrants y. Bice, 133. 
 AA^yeth Hardware & ilanufac- 
 
 turing Co. y. Lang, 245. 
 Wylie y. Grundysen, 98. 
 Wyman y. Stewart, 288. 
 Wynne v. St. Nat. Bank of Ft. 
 Worth, 188, 342, 340. 
 
 Yarborough v. Thompson, 133, 
 191, 207. 
 
 Yates County Nat. Bank v. Car- 
 penter, 99. 
 
 Yates y. Hurst, 57, 84. 
 
Ixxii 
 
 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 Yazoo & M. V. Ry. Co. v. Ful- 
 ton, 102, 109, 201, 208. 
 Yelverton v. Burton, 02. 
 Yerby v. Lackland, 12. 
 Yocum V. White, 120, 135, 205, 
 
 207, 209. 
 Young V. Delaware, L. & W. Ry. 
 Co.. 316, 392. 
 V. First Nat. Bank of Cairo, 
 
 49, 372. 
 V. Louisville & N. Ry. Co., 84. 
 V. Ross, 15. 
 
 V. South Tredegar Iron Co., 
 109, 165. 
 
 Young V. Young, 27, 145. 
 Youngue v. Linton, 176, 379. 
 Younkin v. Collier, 111, 168, 174. 
 Yuba, County of, v. Adams, 27. 
 
 Zanz V. Snover, 289. 
 Zimmer t. Davis, 181, 372. 
 Zimmerman v. Franke, 88, 103. 
 Zurcher v. Magee, 27. 
 Zucker v. Karpeles, 369. 
 
LAW OF GARNISHMENT, 
 
 CHAPTER I. 
 
 GENERAL NATURE OP THE GARNISHMENT REMEDY— 
 SCOPE AND STATUTORY CONSTRUCTION. 
 
 § 1. General Nature. 
 
 'Z. Ancillary to the Principal Suit. 
 
 3. An Action against the Garnishee. 
 
 4. A Proceeding at Law. 
 
 5. Substantially a Proceeding in Rem. 
 G. A Statutory Remedy. 
 
 7. Genei-al Object. 
 
 8. General Statutory Construction — Whether Liberal or Strict Con- 
 
 struction. 
 
 9. The Intended Remedy must be Preserved. 
 
 10. Statutes cannot be Extended, nor Remedy Used Vexatiously. 
 
 11. Statutes Affect the Remedy, and not the Right. 
 
 12. Who may Employ Garnishment Process. 
 
 13. In What Cases Garnishment may Issue. 
 
 General Nature. 
 
 § 1. "Garnish" means to warn, to summon, to make 
 aware, to notify, to attach by garnishing, to issue gar- 
 nishment process.^ The terms "garnisheed" and "gar- 
 nisheeing" are corruptions, and are not used by the 
 best writers.^ Garnishment was originally a notice 
 to a person not a party to a suit to appear in court and 
 
 1 Black, Law Diet.; Drake, Attachm. § 451. 
 
 2 Drake, Attachm. § 451, note 2; 22 Alb. Law J. 181 (1880). 
 
 LAW GAENISH. — 1 
 
§ 1 LAW OF GARNISHMENT. [Ch. 1 
 
 explain bis interest in the subject-matter of tlie liti- 
 gation, or to furnish other information.'' Now it is 
 the act or proceeding of attaching money or property 
 belonging to the defendant, but in the possession of a 
 third person, variously denominated as the "gar- 
 nishee," "trustee," or "factor," according as the reme- 
 dy is known as "garnishment," "factorizing," or "trus- 
 tee process." * Practically, garnishment is a seizure 
 in the hands of the garnishee by notice to him,'^ creat- 
 ing an effectual lien upon the garnished propertv to 
 satisfy whatever judgment the plaintiff may recover 
 in the suit in which it is issued.* It is a mode of at- 
 tachment differing in no material respect from an at- 
 tachment by actual levy and seizure, except in the 
 mode of enforcement.^ From its original position as 
 an appendage to an execution or attachment, garnish- 
 ment has, during the past fifty years, in most of the 
 states, become an independent remedy, capable of be- 
 ing directly employed in any action on contract and 
 uyjon any judgment. 
 
 s And. Law Diet.; Bouv. Law Diet.; Mathews v. Smith, 13 Neb. 
 178, 12 N. W. 825. 
 
 The term is said to have been derived from the Norman "garner," 
 "garnisher," to warn, to summons; "garnishement," "garnissement," 
 "garnishant," "garneyseint," warning, summons, notice. Drake, 
 Attachm. § 451, note 1 ; Kelham, Norman Diet. 
 
 *Id. 
 
 Beamer v. Winter, 41 Kan. 59(j. 21 I'ac. :(t78. 
 
 6 Western Ry. Co. v. Thornton, (iO Ga. 30(i. See post, § 103. 
 
 7 See post, §§ Ito, 194. 
 
 (2) 
 
Gh. 1] GENERAL NATURn; OF GARNISHMENT REMEDY. § 2 
 
 Ancillary to the Principal Suit. 
 
 § 2. Garnishment is a special auxiliary remedy for 
 the more effectual recovery of debts." It is always an- 
 cillary to the main action under which it is prosecut- 
 ed/ and therefore necessarily goes down with it.-" 
 It is not a new suit/^ and is necessarily before the 
 same court as the main action.^ ^ 
 
 8 Newland v. Circuit .Judge of Wayne Co., .S.5 Midi. 15.5, 48 N. W. 
 544; Banning v. Sibley, 3 Minn. 38t) (Gil. 2>i2, 2'J7); La Crosse Nat. 
 Bauli V. Wilson, 74 Wis. 891, 3'JS, 43 N. W. 153; Tinsley v. Savage, 
 50 Mo. 141. 
 
 - Maynards v. Cornwell, 3 Mich. 312; Strong v. HoUon, 39 Mich. 
 411; Milwaukee Bridge & Iron Works v. Wayne Circuit .Tudge, 73 
 Mich. 157, 41 N. W. 215; Heritage v. Armstrong, 101 Mich. 86, 59 
 K. W'. 439; Smith v. Dickson, 58 Iowa, 444, 10 N. W. 850; Kenosha 
 Stove Co. V. Sbedd, 82 Iowa, 540. 48 N. W. 933; Oberteuffer v. Har- 
 wood, 6 Fed. 828; Pratt v. Albright, 9 Fed. 034; Kelly v. Gibbs, 84 
 Tex. 143, 19 S. W. 563; Paul v. Bird, 25 N. .1. Law, 559; Garland 
 T. McKittrick, 52 \^-is. 264, 9 N. W. 160. 
 
 10 Iron Clills Co. v. Lahais, 52 Mich. 397, 18 N. W. 121; Isabelle v. 
 Iron Clifts Co., 57 Mich. 120. 23 N. W. 613; "Segar v. Muskegon 
 Shingle & Lumber Co., 81 Mich. 345, 45 M. W. 982; Denuison v. 
 Taylor, 142 III. 45, 31 N. B. 148. 
 
 A failure to recover against all of the defendants will not dissolve 
 the garnishment. Bethel v. .Judge of Superior Court, 57 Mich. 381, 
 24 N. W. 112. 
 
 Gf course, the principal suit does not go down with the garnish- 
 ment, when personal service on the defendant is obtained. Axtell 
 V. Gibbs, 52 Mich. 639, 18 i\. W. 395. Under Vermont trustee ac- 
 tion, contra. Ferris v. Ferris, 25 Vt. 100. But see Graves v. Sever- 
 ens, 37 Vt. 651, in which the trustee was never served, and the ac- 
 tion was sustained as personal. 
 
 11 Tinsley v. Savasc, .50 Mo. 141; Sherwood v. Stevenson, 25 Conn. 
 431; Maynards v. Cornwell, 3 Mich. 309; Milwaukee Bridge & Iron 
 
 1 2 Farrington v. Sexton, 43 Mich. 454, 5 N. W. 654. See, also, 
 post, §§ 236, 326, 407. 
 
 (3) 
 
§ 3 LAW OP GAR:sisiniiiNT. [Ch. 1 
 
 An Action against the Garnishee. 
 
 § 3. Although garnishment is not a new- suit, but a 
 graft or appendage to the main action, as seen in the 
 last preceding section, yet so far as it is an adversary- 
 proceeding, and for the purpose of determining the re- 
 spective rights of the parties to it, it is essentially 
 and in effect a suit or action against the garnishee by 
 the defendant, in the name and for the benefit of the 
 plaintiff.^' Whether it is an action in such a sense 
 that the general statutes providing for and regulat- 
 
 Works V. Wayne Circuit Judge, 73 Mich. 155, 41 N. W. 215; Pounds 
 V. Hamner, 57 Ala. 342; Barber v. Ferrill, Id. 446; Pechheimer v. 
 Hays, 11 Ind. 478; Perea v. Colorado Nat. Bank of Texas (N. JI.) 
 27 Pac. 322. Contra, Cross v. Spillman, 93 Ala. 170, 9 South. 3&2. 
 
 13 Caldwell v. Stewart, 30 Iowa, 379; McKelvey v. Crockett, IS 
 Nev. 238, 2 Pac. 386; Harris v. Phoenix Ins. Co., 35 Conn. 310; 
 Dewey v. Garvey, 130 Mass. 86; Cross v. Spillman, 93 Ala. 170, 9 
 South. 362; Whitman v. Keith, 18 Ohio St. 145. 
 
 Garnishment proceedings are res inter alios acta, as to the de- 
 fendant. Cross V. Spillman, 93 Ala. 170, 9 South. 362; Edmonson 
 V. De Kalb Co., 51 Ala. 104. 
 
 "The statute makes the service of a summons on a garnishee the 
 commencement of an action against him. But it is a most peculiar 
 action, out of the ordinary course of judicial proceedings. It is an 
 anomaly; a statutory invention sui generis, with no affinity to any 
 action known to the common law. It does not proceed on liability 
 of the garnishee to the plaintiff:, or on any privity between them. 
 It is in effect an action brought by the plaintiff, in his own name 
 and of his own will, in the right of the defendant in the principal 
 suit; an action against the defendant's debtor, a stranger to the 
 principal cause of action." Steen v. Norton, 45 Wis. 412. 
 
 Held that the garnishment is not an action. Milwaukee Bridge 
 & Iron Works v. Wayne Circuit Judge, 73 Mich. 155, 41 N. W. 215; 
 Moore V. Wayne Circuit Judge, 55 Mich. 84, 20 N. W. 801; Wile v. 
 Cohn, 63 Fed. 759; Wooding v. Puget Sound Nat. Bank (Wash.) 40 
 Pac. 223. 
 
CL. 1] GENERAL NATURE OF GARNISHMENT REMEDY. § 3 
 
 ing proceedings in civil actions embrace and apply to 
 it without express legislation to that effect, is a ques- 
 tion which has been much litigated, and almost uni- 
 versally decided in the affirmative. It is agreed that 
 it is an action in such a sense that either of the parties 
 may avail themselves of the general statute author- 
 izing appeals,^* or of the statute allowing amend- 
 ments in civil actions,^" and it stops the running of 
 the statute of limitations against the plaintiff." 
 Likewise, when the garnishment statutes do not pro- 
 vide the mode of making service of process, it is held 
 that service may be made in the manner prescribed in 
 the general statutes for service in other actions.^' To 
 a greater or less extent, also, the rules as to nonjoin- 
 der and misjoinder of parties/® and the general prin- 
 ciples of pleading and practice in civil actions, apply 
 to garnishment proceedings." The plaintiff may dis- 
 continue as in other actions,^" and his right to main- 
 tain suit is determined by the same rules.^^ 
 
 1* gee post, § 405. 
 
 1= Creiar v. Milwaukee & St. P. Ry. Co., 35 Wis. 67; Hutcblnson 
 V. Ti'auerman, 112 Ind. 21. 13 N. E. 412. See, also, post, §§ 253, 267, 
 279, 35S, 359. 
 
 10 Fogler v. Marston, 83 Me. 396, 22 Atl. 249. 
 
 i? Jones V. New York & E, Ry. Co., 1 Grant, Cas. (Pa.) 457. See, 
 also, post, § 273. Contra, Jlilwaukee Bridge & Iron Works v. Wayne 
 Circuit Judge, 73 Mich. 15."), 41 N. W. 215. 
 
 3 « See post, §§ 261, 263, 369. 
 
 i» See post, chapters on "Formation and Trial of the Issue"; also, 
 on "Judgment," "Costs," and "Appeals." 
 
 20 Greil v. Loftin, 65 Ala. 591. 
 
 21 See post, §§ 44-48. 
 
 Held that, when "no suit must be commenced against an ad- 
 ministrator as such until six months after the grant of letters of 
 
 (5) 
 
§ 5 LAW OF GARNISHMENT. [Ch. 1 
 
 A Proceeding at Law. 
 
 § 4. Garnishment is generally considered as a legal 
 as distinguished from an equitable proceeding, and 
 ordinarily equitable rights cannot be reached by this 
 process," nor can a court of equity be invoked to aid 
 the proceedings under it.^^ 
 
 Substantially a Proceeding in E,eni. 
 
 § 5. It is a proceeding by which the debtor is com- 
 pelled to pay another than his creditor, and the right 
 
 administration," the administrator cannot be garn'slied witliin that 
 time. Moore v. Stainton, 22 Ala. 881. 
 
 It has been held that, although the federal court has jm-isdictiou 
 of the main action, it cannot entertain garnishment in aid thereof, 
 when the parties to that proceeding are residents of the same state. 
 Tunstall v. Worthington, Ilempst. 062, Fed. Cas. No. 14,239. But 
 the correctness of this decision may well be doubted. Pratt v. Al- 
 bright, 9 Fed. 039; Kidderlin v. Meyer, 2 Miles (Pa.) 292. 
 
 The statute, speaking of "the defendant in the action," who is do- 
 ing or threatens to do some act in violation of the plaintiff's rights, 
 and who may be restrained, includes the garnishee. Malley v. Alt- 
 man, 14 Wis. 24; Almy v. Piatt, 10 Wis. 109. 
 
 FOR FURTHKK AUTHOHIxy upon the general question of gar- 
 nishment as an action, the reader is referred to Delacroix v. Hart, 24 
 La. Ann. 141; Thorn v. Woodruff, 5 Ark. 05; Atchinson y. Rosalip, 3 
 Pin. (Wis.) 288, 4 Chand. 12; Lusk y. Gallo\vay, 52 Wis. 164, 8 N. 
 W. 60S; Mygatt y. Burton, 74 Wis. 3.52 43 N. W. 100; Bragg v. 
 Gaynor, 85 Wis. 481, 55 N. W. 923; State v. Cordes, 87 Wis. 373 
 58 N. W. 771; Gorman y. Swaggerty, ^ Sneed (Tenn.) 560; Burk- 
 ett V. Holman, 104 Ind. 6, 3 N. E 406; Pollock v. Jones, 96 Ala. 
 492, 11 South. 529; Heyward v. Phillips-Buttoff Manuf'g Co., 97 
 Ala. 533, 11 South. 837; First Nat. Bank of Gadsden v. Dunn, 102 
 Ala. 204, 14 South. 559; Case v. Noyes, 16 Or. 329, 19 Pac. 104; 
 Smith V. Conrad, 23 Or. 206, 31 Pac. 398. 
 
 2 2 See post, §§ 153, 154. 
 
 2 3 See post, § 187. 
 
Ch. IJ GENERAL NATURE OF GAENISIIMENT UKMEDY. § 5 
 
 of the creditor is, against his will, transferred to an- 
 other." It is in the nature of a proceeding in rem,^'' 
 and the garnishee is the receiver of the court to hold 
 the res until it is determined who is entitled to it."^ 
 
 To all parties to the suit, and their privies, it is a 
 proceeding in rem; and, if the court have jurisdiction, 
 its judgment is conclusive, the same as any judgment 
 
 24 Wells V. American Exp. Co., 55 Wis. 23, 34, 11 N. W. .537; Et- 
 telsohn v. Fireman's Fund. Ins. Co., 64 Mich. 334, 31 N. W. 201; 
 Newland v. Circuit Judge, 85 Mich. 151, 48 N. W. 544; Strong v. 
 Smith, 1 Mete. (Mass.) 470; Mayor & Aldermen of City of London 
 V. London Joint-Stocli Bank, 50 L. J. (Q. B.) .594. 
 
 2 Steen v. Norton, 45 Wis. 412; Wells v. American Exp. Co., 55 
 Wis. 23, 34, 11 N. W. 537; Moore 7. Circuit Judge, 55 Mich. 84, 20 
 N. W. 801; Daniels v. Clark, 38 Iowa, 556; Sears v. Thompson, 72 
 Iowa, 61, 33 N. ^^'. 364; Gage v. Masehmeyer, 72 Iowa, 696, 34 N. 
 W. 482; Timm v. Stegman, 6 Wash. 13, 32 Pac. 1004; Harvey v. 
 Gieat Northern Ry. Co. 50 Minn. 405, 52 N. W. 905; Batchellor v. 
 Richardson, 17 Or. 334, 21 Pac. 392; McBride v. Protection Ins. Co., 
 22 Conn. 257; Cousens v. Lovejoy, 81 Me. 467, 17 Atl. 495; State 
 V. Duncan, 37 Neb. 631, 50 N. W. 216; Christmas v. Bidclle, 13 Pa. 
 St. 223; Berry v. Davis, 77 Tex. 191, 13 S. W. 978; Myers v. Smith, 
 29 Ohio St. 120; Wile v. Cohn, 63 Fed. 759; McCarty v. Steam 
 Propeller The City of New Bedford, 4 Fed. 819. 
 
 Failure to get jurisdiction of the res will not, as in a proceeding 
 in rem, defeat the action, when personal service is had on the de- 
 fendant, and he may be recovered against personally. Axtell v. 
 Gibbs, 52 Mich. 639, 18 N. W. 395. 
 
 26 See post, § 193. 
 
 IN REM BT IN PERSONAM: "It is true that the attachment 
 process is a proceeding in rem, but it is equally ti'ue that it is some- 
 thing more. It is also a proceeding against the garnishee personally 
 for the purpose of compelling him to answer for the value where the 
 thing itself is not produced. » * • His own estate may be taken 
 in execution if he fails to answer interrogatories, or to procure the 
 goods and effects of the defendant found in his hands or posses- 
 sion, or neglect to pay the debt attached, if the same be due and 
 payable." Childs v. Digby, 24 Pa. St. 23; Barton v. Spencer (Okl.) 
 41 Pac. 605. See, also, post, §§ 391, 302, 402, ,193. 
 
 (T) 
 
§ 6 LAW OF GARNISHMENT. [Ch. 1 
 
 in rem." A proceeding purely in rem is not inter 
 partes upon the record, but appears to be directly 
 ae-ainst the property, and notice is given to all the 
 world to defend. In these matters it differs from gar- 
 nishment.'" 
 
 A Statutory Remedy. 
 
 § 6. Foreign attachment by the particular custom 
 of London, and other similar remedies kindred to the 
 process of garnishment as it exists in this countrv to- 
 day, though restricted in operation and under various 
 proceedings, are probably of ancient origin.^" But 
 the remedy, as it obtains in the United States, is held 
 to be in derogation of common law, and purely statu- 
 tory and special.'" As there is no other authority 
 for the proceeding, the plaintiff must follow the stat- 
 
 2 7 Moore v. Chicago, R. I. & P. R. Co., 43 Iowa, 385. 
 2 8 Woodruff V. Taylor, 20 Vt. 65. 
 
 29 Drake, Attachm. §§ 1-4. 
 
 30 Sievers v. Woodburn-Sarven Wheel Co., 43 Mich. 275, 5 N. W. 
 311; Ford v. Detroit Dry-Dock Co., 50 Mich. 358, 15 N. W. 509; 
 Iron Cliffs Co. v. Lahais, 52 Mich. 394, 18 N. W. 121; Folkerts v. 
 Standish, 55 Mich. 467, 21 N. W. 891: Hanseluian v. Kegel, 00 
 Mich. 548, 27 N. W. 678; Lyon v. Ballentine, 63 Mich. 105, 29 N. W. 
 837; Bttelsohn v. Fireman's Funa Ins. Co., 64 Mich. 334, 31 N. W. 
 201; Jlilwaukee Bridge & Iron Works v. Circuit .ludge, 73 Mich. 
 157, 41 N. W. 215; Shafer Iron Co. y. Stone. Circuit Judge, 88 
 Mich. 472, 50 N. W. 389; Crisp v. Ft. Wayne & E. Ry. Co., 98 Mich. 
 648, 57 N. W. 1050; Riudge v. Green, 52 Vt. 204, 209; Hall v. Bow- 
 ker, 44 Vt. 77; Wells y. Amcriean Exp. Co., 5.'i Wis. 23, 34, 11 N. 
 W. 537; McDonald v. Vinette, 58 Wis. 019, 17 N. W. 319; State v. 
 Duncan, 37 Neb. 031, 56 N. W. 216; Roberts y. Laudecker, 9 Cal. 
 262; Raymond v. JS'arragansett Tinware Co., 14 R. 1. 310; King 
 y. Fayan, 18 Ark. 583; Cariker y. Anderson, 27 111. 358; May v. 
 Baker, 15 111. 89; Curtis y. Steeyer, 36 N. J. Law, 304; Carper v. 
 Ivicliards, 13 Ohio St. 222; Porter & Blair Hardware Co. y. Perdue 
 
 (8) 
 
Ch. 1] GENERAL NATURE OF GARNISHMENT REMEDY. § 6 
 
 ute strictly," and the garnishee cannot safely waive 
 compliance with any of its substantial requirements," 
 or submit to a judgment in an unauthorized garnish- 
 
 (Ala.) 16 South. 713; Mitcbell v. Bray, 106 Ind. 265, 6 N. B. 617.' 
 A HISTORY of the rise of the garnishment action in America is 
 given in a note by Chancellor Kent, 2 Kent, Comm. 403. 
 
 CUSTOM OF LONDON: "We are not bound or required by our 
 statute adopting the common law of England to enforce local cus- 
 toms and statutes as a rule of action in this state. On the contrary, 
 they are excluded. The proceeding by foreign attachment was un- 
 known to the common law. It, by local custom, existed in London, 
 Exeter, and may have existed in some other places. 1 RoUe, Abr. 
 552; 1 Com. Dig. 580. It was a local custom, and wholly governed 
 by the special custom. As our legislature in no wise refers to it in 
 adopting our earliest attachment law, or subsetjuent amendments 
 or revisions, we have no ground to suppose that body had those 
 customs in mind, or could have intended them to have any bearing, 
 in giving these acts construction." Hannibal & St. J. R. Co. v. 
 Crane, 102 111. 249, 40 Am. Rep. 581; Pennsylvania Steel Co. v. 
 New Jersey S. R. Co., 4 Houst. (Del.) 572; Walsh v. Blackwell, 14 
 N. J. Law, 344; Fisher v. Consequa, 2 Wash. C. C. 382, Fed. Cas. 
 No. 4,816. CONTRA: "The doctrine of garnishment is part of the 
 common law, derived from the custom of London; and, although it 
 is here partially regulated by statute, it is not the less a common- 
 law proceeding." Cahoou v. Levy, 5 Cal. 294, 65 Am. Dec. 515. 
 31 Townsend v. Circuit Judge, 39 Mich. 407; Iron Cliffs Co. v. La- 
 hais, .52 Mich. 394, 18 N. W. 121; Hamilton v. Rogers, 67 Mich. 135, 
 34 N. W. 278; Kennedy v. McLellan, 76 Mich. 598, 43 N. W. 641; 
 Landsberg v. Bullock, 79 Mich. 278, 44 N. W. 608; Smith v. Hol- 
 land, 81 Mich. 476, 45 N. W. 1017; Peninsular Stove Co. v. Circuit 
 Judge, 85 Mich. 400, 48 N. W. 549; Boyer v. Hawkins, 86 Iowa, 40, 
 52 N. W. 659; Ferris v. Ferris, 25 Vt 100; Cariker v. Anderson, 
 27 111. 358; Gibbon v. Bryan, 3 111 App. 298; Timm v. Stegman, 6 
 Wash. 13, 32 Pac. 1004; Heritage v. Armstrong, 101 Mich. 85, 59 
 N. W. 439; Case v. Noyes, 16 Or. 329, 19 Pac. 104; Batchellor v. 
 Richardson, 17 Or. 334, 21 Pac. 392; Smith v. Conrad, 23 Or. 200, 
 31 Pac. 398; Wells v. American Exp. Co., 55 Wis. 34, 11 N. W. 
 
 32Hebel v. Amazon Ins. Co., 33 Mich. 402; Crisp v. Ft. Wayne 
 & E. Ry. Co., 98 Mich. 048, 57 N. W. 1050; post, § 213. 
 
 (9) 
 
§ 7 LAW OF GARNISHMENT. [Cll. 1 
 
 ment," because otliers may have an interest in the 
 result quite equal with those of the parties to the 
 suit."* 
 
 General Object. 
 
 § 7. Some of the early statutes seem to have been 
 intended only to aid the plaintiff in getting service, as 
 the defendant could dissolve the garnishment by giv- 
 ing mere appearance bail.^" But the majority, even 
 of these, arose from the obvious necessity of some 
 mode to recover debts from absent persons having 
 property or credits within the state,"* and a purpose 
 to make property consisting of debts and other effects 
 not within the reach of ordinary process equally avail- 
 able with other property to creditors of the owner," 
 so far as that object might be accomplished without 
 
 fiHT; Coda v. Thompson, 39 W. Va. 67, 19 S. E. 548; McDonald v. 
 '\-mette, 58 Wis. G19, 17 N. W. 319; Kingold v. Suiter, 35 W. Va. 
 386, 13 S. E. 40; Herrlich v. Kaufmann, 99 Cal. 271, 33 Pac. 857; 
 Garland v. Sperling (N. M.) 30 Pac. 925; Roberts v. Landecker, 9 
 Cal. 262; Heyward v. Pbillips-Buttoff Manuf'g Co., 97 Ala. 533, 11 
 South. 837; State v. Duncan, 37 Neb. 631, 56 N. W. 216; McKin- 
 ney v. Snider, 116 Ind. 160, 18 N. E. 526; Morton v. Grafllin, 68 
 Md. 545, 15 Atl. 298; Willis v. Lyman, 22 Tex. 270; Scurlock v. 
 Gulf, C. & S. V. Uy. Co., 77 Tex. 478, 14 S. W. 148; Booth v. Den- 
 ike, 65 Fed. 43. But see Davis v. Mahany, 38 N. J. Law, 10 1; 
 Carter v. Koshland, 13 Or. 015, 12 Pac. 58. 
 
 3 3 Whitcomb v. Atkins, 40 Neb. 549, 59 N. W. 86. 
 
 3 4 Ettelsohn v. Fireman's Fund Ins. Co., 64 Mich. 334, 31 N. W. 
 201. 
 
 35 Jackson's Appeal, 2 Grant (Pa.) 407; Risewick v. Davis, 19 
 Md. 83; Albert v. Albert, 78 Md. 338, 28 Atl. 388. 
 
 30 Campbell v. Morris, 3 Har. & McH. (Md.) 535, 567; Hepburn's 
 Case, 3 Bland (Md.) 95, 119; Barnet's Case, 1 Dall. CO. S.) 152; 
 Strong v. Barlow, Kirby (Conn.) 376. 
 
 37 Knox v. Protection Ins. Co., 9 Conn. 430, 25 Am. Dec. 33; Bray 
 V. Wallingford, 20 Conn. 410; New Haven Steam Sawmill Co. v. 
 (10) 
 
Ch. 1] GENERAL NATURE OF GARNISHMENT REMEDY. § 7 
 
 too serious invasion of the rights of third persons,''* 
 and in many cases to supplant the old creditor's bill 
 in equity with a cheaper and more speedy remedy at 
 law.^" But, as appears by allowing the use of the 
 remedy at the commencement of suit in all actions 
 founded upon contract, and by otherwise extending 
 it, many modern statutes have absorbed all these 
 in the paramount purpose to secure to the plaintiff 
 satisfaction of whatever judgment he may recover in 
 his suit; *" and herein the advantage of the process is 
 most apparent, in enabling creditors, at the very com- 
 mencement of their suit against the principal debtor, 
 to seize upon his property without warning, and thus 
 obtain security which would be far enough beyond 
 their reach at the termination of the action.''^ 
 
 Fowler, 28 Conn. 103; Flagg v. Piatt, 32 Uonn. 216; Taylor v. Bur- 
 lington & M. R. K. Co., 5 Iowa, 114, 123, Banning v. Sibley, 3 Minn. 
 389 (Gil. 282, 297); President, eti-.. Union TumpiUe Road v. Jenkins, 
 2 Mass. 37; La Crosse Nat. Bank v. Wilson, 74 Wis. 398, 43 N. W. 
 153; Hicks v. Gleason, 20 Vt. 139; McKelvey v. Crockett, 18 Nev. 
 238, 2 Pac. 380, 3 Am. & Eng. Corp. Cas. 105; Wilder v. Weather- 
 head, 32 Vt. 7f)5; Drake, Attachm. § 451. 
 
 asKarp v. Citizens' Nat. Bank, 76 Mich. 681, 43 N. W. 680. 
 
 3 9 La Crosse Nat. Bank v. Wilson, 74 Wis. 398, 43 N. W. 153; 
 Herrlich v. Kanfmann, 99 Cal. 271, 33 Pac. 857. 
 
 Held, that the garnishee cannot refuse to answer on the ground 
 that the proceedings are prosecuted merely for the purpose of dis- 
 covery. Oberteuffer v. Harwood, 6 Fed. 828. Garnishment is a 
 method of seizure, and not a bill of discovery. State Nat. Bank 
 V. Boatner, 39 La. Ann. 843, 2 South. 589. 
 
 io Suydam v. Huggeford, 23 Pick. 465, 470; Beamer v. Winter, 
 41 Kan. 596, 21 Pac. 1078; Kennedy v. Tiernay, 14 R. I. 528; 
 Bethel v. Judge of Superior Court, 57 Mich. 381, 24 N. W. 112; 
 Newland v. Circuit Judge, 85 Mich. 151, 48 N. W. 544; Sears v. 
 Thompson, 72 Iowa, 61, 33 N. W. 364; Oberteuffer v. Harwood, 6 
 Fed. 828. 
 
 41 Banning v. Sibley, 3 Minn. 389 (Gii 282, 295). 
 
 (11) 
 
§ 8 LAW OF GARNISHMENT. [Ch. 1 
 
 General Statutory Construction. 
 
 Wiielher Liberal or Strict Construction. 
 
 § 8. It is generally held that garnishment statutes, 
 being remedial, should be liberally construed.*- In 
 some of the states, garnishment is considered as a 
 harsh and peculiar remedy,*^ which cannot be aided 
 by presumptions,** and is unsupported by such equita- 
 ble considerations as appeal to the conscience of the 
 court; *^ and it is held that statutes providing the 
 remedy must be strictly construed, because in deroga- 
 tion of common law.*" 
 
 •12 Enos V. Tuttle, 3 Conn. 29; Starr v. Carrington, Id. 284; Fitch 
 V, Waite, 5 Conn. 117, 122; Treadway v. Andrews, 20 Conn. 381; 
 Boyer v. Hawkins, 86 Iowa, 40, 52 N. W. O.jO; Woodward v. Wood- 
 ward, 9 N. J. Law, 115, 17 Am. Dec. 462; Davis v. Mahany, 38 N. 
 J. Law, 104, 108; Luton v. Hoelin, 72 111. 81; Hannibal & St, .T. 
 E. Co. V. Crane, 102 111. 249, 40 Am. Rep. 581; Lyman v. Wood, 42 
 Vt. 113; White v. Simpson (Ala.) IS South. 151; Whitney v. Muu- 
 rop, 19 Me. 42, 30 Am. Dec. 732. 
 
 "This is a remedial law, and ought, upon the soundest principles 
 of construction, to be so extended as to remove the mischief and to 
 advance the remedy." Fisher v. Consequa, 2 Wash. C. C. 382, Fed. 
 Gas. No. 4,816. 
 
 4 3 Sievers v. Woodburn-Sarven Wheel Co., 43 Mich. 277, 5 N. W. 
 311; Weimeister v. Mauville, 44 Mich. 409, 6 N. W. 8r9; Roths- 
 child V. Burton, 57 Mich. 544. 25 N. W. 49; Iron Cliffs Co. v. La- 
 hais, 52 Mich. 396, 18 N. W. 121; Farwell v. Chambers, 62 Mich. 
 321, 28 N. W. 859. 
 
 4* Weimeister v. Manville. 44 Mich. 408, (> N. W. 859; Folkerts 
 V. Standish, 55 Mich. 4G7, 21 N. W. 891; Ettelsohn v. Fireman's 
 Fund Ins. Co., (i4 Mich. 334, 31 N. W. 201. 
 
 45 Farwell v. Chambers, 62 Mich. 321, 28 N. W. Sod. 
 
 40 Ford V. Detroit Dry-Dock Co., 50 Mich. 358, 15 N. W. 509; 
 
 Maynards v. Cornwell, 3 Mich. 312; Iron Cliffs Co. v. Lahais, 52 
 
 Mich. 394, 18 N. W. 121; Folkerts v. Standish. 55 Mich. 467, 21 N. 
 
 W. 891; Hanselmau v. Kegel, 60 Mich. 548, 27 N. W. 678; Far- 
 
 (12) 
 
Ch. 1] GENERAL NATUBE OF GARNISHMENT REMEDY. § 10 
 
 The Intended Remedy must be Preserved. 
 
 § 9. But even in these states it is held that the pro- 
 ceeding should be governed by equitable principles, to 
 the end that the intent of the legislature may be car- 
 ried out,*^ and it is the duty of the court to sustain the 
 law, and preserve the remedy designed by the legisla- 
 ture, if there appears any way in which it can be made 
 effectual.*' 
 
 Statutes cannot be Extended, nor Remedy used Vexatiously. 
 
 § 10. As the proceedings are not in the ordinary 
 course of common law, involve consequences that could 
 not otherwise arise at law or in equity,*" often compel 
 the garnishee to submit to the expense and vexation of 
 a suit in which he has no interest, and which he might 
 be saved but for the garnishment,^" it ought not to be 
 resorted to without sufficient reasons, or when the 
 redress sought may be obtained through common-law 
 
 well V. Chambers, 62 Mich. 316, 28 N. W 859; Bttelsohn v. Fire- 
 man's Fund Ins. Co., 64 Mich. 334, 31 N. W. 201; Perea v. Colorado 
 Nat. Bank (N. M.) 27 Pac. 322; Scurlocli v. Gulf, C. & S, F. Ry. 
 Co., 77 Tex. 478, 14 S. W. 148; Cause v. Cone, 73 Tex. 239. 11 S. 
 W. 102; Jemison v. Scarborough, 56 Tex. 360. 
 
 47 Lyon V. Ballentine, 63 Mich. 104, 29 N. W. 837; Marx v. 
 Parker, 9 Wash. 473, 37 Pac. 677; Roberts v. Landecker, 9 Cal. 
 260. 
 
 Garnishment statutes, being in pari materia, will be construed to- 
 gether, to carry out the intent of the legislature. Storm v. Cotz- 
 hausen, 38 Wis. 145; City of Denver v. Brown, 11 Colo. 337, 18 Pac. 
 214; Capes v. Burgess, 135 111. 61, 25 N. B. 1000. 
 
 48 Bethel v. Linn, 63 Mich. 472, 30 N. W. 84; Perea v. Colorado 
 Nat. Bank (N. M.) 27 Pac. 322; Carter v. Koshland, 13 Or. 615, 12 
 Pac. 58; Pomeroy v. Rand, McNally & Co. (III.) 41 N. B.. 636. 
 
 4 Blake V. Hubbard, 45 Mich. 1, 7 N. W. 204. 
 60 Ettelsohn v. Fireman's Fund Ins. Co., 64 Mich. 334, 31 N. W. 
 201; Rothschild v. Burton, 57 Mich. 544, 25 N. W. 49. 
 
 (13) 
 
§ 11 LAW OF GARNISHMENT. [Ch. 1 
 
 proceedings," and the statute cannot be extended by- 
 construction to include cases not clearly provided 
 for,°^ nor to supply defects in the method of enforce- 
 ment/^ 
 
 Statutes Affect the Remedy, and not the Right. 
 
 § 11. Inasmuch as garnishment statutes create no 
 new rights or liabilities, and are purely remedial, they 
 are not retroactive when applied to suits commenced 
 after passage of the act, though relating to former 
 transactions." A person does not, by commencement 
 of suit under them, acquire a vested right to pursue the 
 statutory remedy, and therefore the legislature may 
 deprive the plaintiff of the benefits of his garnishment 
 by changing or repealing the law at any time before 
 
 " Weimeister v. Manville, 44 Mich. 408, 6 N. W. 859; Iron Cliffs 
 Co. V. Laliais, 52 Mich. 394, 18 N. AV. 121; Orton v. Noonan, 27 
 Wis. 581; Chanute v. Martin, 25 111. 49; Kruse v. Wilson, 79 111. 
 233. 
 
 To sustain garnishment, it is not necessary to show that the de- 
 fendant has no property subject to attachment, when the statute 
 does not require it. Davis v. Wilson, 52 Iowa, 187, 3 N. W. 52. 
 
 When an affidavit that defendant has no property subject to exe- 
 cution is a condition precedent to the light to garnish, the solvent 
 defendant may move to dismiss the garnishment as an abuse of 
 process. German-American Bank v. Butler-Mueller Co., 87 Wis. 
 467, 58 N. W. 746. 
 
 52 See post, § 13; Case v. Noyes, 16 Or. 329, 19 Pac. 104; Perea 
 V. Colorado Nat. Bank (N. M.) 27 Pac. 322; Picquet v. Swan, 4 
 Mason, 443. Fed. Cas. No. 11,133. 
 
 ssAldis v. Hull, 1 D. Chip. (Vt.) 314; Baynard ^. Simmons, 5 El. 
 & Bl. 58, 61, 85 E. C. L. .59. 
 
 54 Heineman v. Schloss, 83 Mich. 153, 47 N. W. 107; Klaus v. 
 City of Green Bay, 34 Wis. 628; Fisher v. Hervey, 6 Colo. 16; 
 Bingham v. Rushing, 5 Ala. 403; Paschall v. Whitsett, 11 Ala. 472. 
 But see Hartle v. Long, 5 Pa. St. 491. 
 (14) 
 
Ch. J] GENEUAL NATURE OF GARNISHMENT REMEDY. § 12 
 
 lie lias reduced it to judgment." A statute exempt- 
 iug property from garnishment held not applicable to 
 garnishment instituted before laws took effect, be- 
 cause such application of the statute would impair the 
 obligation of contracts.* The garnishment statutes 
 do not impair the obligation of contracts, nor deprive 
 the defendant of his property without due process of 
 law. '" 
 
 Who may Employ Garnishment Process. 
 
 § 12. Unless the remedy is limited by special stat- 
 ute," or excluded by contract between the parties,''* it 
 may be invoked in cases within the purview of the stat- 
 ute by the United States,^" or by any of the states,"" or 
 by an assignee of the chose in action on which the suit 
 is brought,"^ or by a nonresident of the state,"^ though 
 the defendant is also a nonresident, and only substi- 
 tuted service is obtained upon him in the main ac- 
 tion,"^ or by one who has proved his account under a 
 
 5 Freiberg v. Singer, 90 Wis. COS, 03 N. AA'. 754. 
 
 « Willard v. Sturm (Iowa), (in X. W. 847. 
 
 Cross V. Brown (R. I.) 33 Atl. 14 1", 151. 
 
 0- Yerby v. Lacliland, G Har. & .J. (Md.) 440; Giddeus v. Wil- 
 liamson, (i-j Ala. 439. 
 
 r.s Turner v. Burnell, 4S Wis. 221, 4 N. W. 30. 
 
 " U. S. V. Graff, 67 Barb. (N. Y.) 304. 
 
 60 People V. Johnson, 14 111. 341:. 
 
 «i Crippen v. Fletcber, 56 Jlich. 3SS. 23 N. W. ."lO; Whitman v. 
 Keith, 18 Ohio St. 143. 
 
 "- Ward V. Morrison, 25 Vt. 598; Wo(.(iiey v. Shirley, Min. (Ala.) 
 14: BuiTows V. Dumphy, 2 Har. (Del.) 308. 
 
 03 Newland v. Circuit Judge, 85 Mich. l.!)!. 48 N. W. ."i44; Xntional 
 Fire Ins. Co. v. Chambers (X. J. Ch.) 32 Atl. 663; Cross v. Brown 
 (R. 1.) 33 Atl. 1-54. Contra, Webb v. Lea, 6 Yerg. (Tenn.) 473. 
 
 (15) 
 
5 13 LAW OF GARNISHMENT. [Ch. i 
 
 fraudulent assignment to garnishee as trustee for the 
 benefit of creditors of the defendant,"* or in an action 
 aaainst a corporation/' or by a plaintiff who has oth- 
 er security, or is prosecuting another remedy; "^ in 
 short, by any person not denied the remedy by the 
 statute itself or by estoppel. 
 
 In What Cases Garnishment may Issue. 
 
 § 13. As the proceedings are purely statutory, and 
 cannot be extended to cases unprovided for without 
 mischief," the courts have no discretion to enlarge the 
 remedy,"^ or hold under it either persons "'' or prop- 
 erty " not made subject to the process. Writs of ffar- 
 
 6 4 Neuf elder v. German-American Ins. Co., 6 Wash. 336, 33 Pac. 
 870; Thomas v. Brown, 07 Md. 512, 10 Atl. 713; Crippen v. Fletch- 
 er, 56 Mich. 388, 23 N. W. 50; Black v. Dawson, 82 Mich. 485, 46 
 N. W. 793. 
 
 Held, that the plaintiff in garnishment does not waive his lien 
 by procuring an allowance of his claim in full, as unsecured, before 
 the commissioners of the debtor's insolvent estate. Lawrence v. 
 Security Co., 56 Conn. 423, 15 Atl. 406. 
 
 6 5 Everdell v. Sheboygan & F. K. Co., 41 Wis. 402. 
 
 6 6 See, post, § 185. 
 
 67 Sievers v. Woodburn-Sarven Wheel Co., 43 Mich. 277, 5 N. W. 
 311; Boyer v. Hawkins, 86 Iowa, 40, 52 N. W. 659. 
 
 68 Fearey v. Cummings, 41 Mich. 384, 1 N. W. 946; Atchinson v. 
 Kosalip, 4 Chand. (Wis.) 12, 17, 3 I'in. 288. 
 
 6 8 Hewitt V. AVagar Lumber Co., 38 Mich. 702. "Any pereon" 
 held to include partnership. Whitman v. Keith, 18 Ohio St. 144. 
 
 7 Fearey v. Cummings, 41 Mich. 376, 1 N. W. 946; Markham v. 
 Gehan, 42 Mich. 74, 3 N. AV. 262; Ford v. Detroit Dry-Dock Co., 50 
 Mich. 358, 15 N. W. 509; Folkerts v. Standish, 55 Mich. 403, 21 N. 
 W. 891; Farwell v. Chambers, 02 Mich. 316, 28 N. W. 859; Crisp 
 V. Ft. Wayne & E. Ky. Co., 98 Mich. 648, 57 N. W. 1050; Gause v. 
 Cone, 73 Tex. 239, 11 S. W. 162; Capes v. Burgess, 135 111. 61, 25 N. 
 E. 1000. 
 
 (16) 
 
Ch. 1] GENERAL NATURE OF GARNISHMENT REMEDY. § 13 
 
 nishment can issue only in the cases enumerated in 
 the statute/^ To entitle the plaintiff to the benefit 
 he claims, he must show that his case is one clearly 
 contemplated by the statute," for the remedy cannot 
 be extended to doubtful cases.''' Garnishment can- 
 not be employed to secure payment of the garnish- 
 ment judgment, unless specially so provided by stat- 
 ute.'* Upon grounds of public policy, neither the 
 property of mxinicipal corporations used for municipal 
 purposes nor their revenues can be sequestered by gar- 
 nishment in actions against them." It has been held 
 
 71 Weimeister v. Manville, 44 Mich. 409, 6 N. W. S.59; Weimeister 
 V. Singer, 44 Mich. 400, 6 IN. W. 858; Wilson v. Circuit Judge, 82 
 Mich. 169, 46 N. W. 439; Graves v. Severens, 37 Vt. O.jI; Ferris v. 
 Ferris, 25 Yt. 100; Rindge v. Green, 52 Vt. 209; Porter & Blair 
 Hardware Go. v. Perdue (Ala.) 16 South. 713; Donald v. Nelson, 95 
 Ala. Ill, 10 South. 317; Gilcreest v. Savage, 44 111. 50; Bliss v. 
 Smith, 78 111. 359. 
 
 '2 Iron Cliffs Co. v. Lahais, 52 Mich. 396, 18 N. W. 121; Kennedy 
 V. McLellan, 76 Mich. 598, 43 N. W. 641; Gowan v. Planson, 55 Wis. 
 34.J, 13 N. W. 238; Webster v. Steel, 75 111. 544; Mitchell v. Bray, 
 106 Ind. 265, 6 N. B. 617. 
 
 73Folkerts v. Standish, 55 Mich. 466, 21 N. W. 891; Farwell v. 
 Chambers, 62 Mich. 321, 28 N. W. 809. But see Field v. Haines, 28 
 Fed. 919. 
 
 In United States courts, any remedy may be employed which is 
 available in a like case in the courts of the state. Sage v. St. IPaul, 
 S. & T. F. Ry. Co., 47 Fed. 3. 
 
 7 4 Illinois Cent. Ry. Co. v. Weaver, 54 111. 319; Wolf v. Tappan, 5 
 Dana (Ky.) 361. Compere .Tones v. Huntington, 9 Mo. 249; Squair 
 V. Shea, 26 Ohio St. 645. Contra, Sperling v. Calfee, 7 Mont. 514, 
 19 Pac. 204. 
 
 7 6 Egerton v. Third Municipality, 1 La. Ann. 435; Moore v. Mayor, 
 etc., of Chattanooga, 8 Heisk. (Tenn.) 850; XJnderhlll v. Calhoun, 63 
 Ala. 216; Hitchcock v. Galveston Wliarf Co., 50 Fed. 263. Contra, 
 Smoot v. Hart, 33 Ala. 69. 
 
 When land owned by a city, but not used for municipal purposes, 
 is sold, and the money derived from the sale Is deposited in a bank, 
 
 LAW GARNISH. 2 (17) 
 
§ 13 LAW OF GARNISHMENT. [Cll. 1 
 
 that judgments against deceased persons cannot be 
 enforced by garnishment proceedings." The same 
 lias been held of proceedings against the estate of a 
 ward under guardianship," and of a suit against an 
 administrator for a debt of the decedent.'* When it 
 appears that process has been improvidently issued, 
 it is the duty of the court to dismiss the same at any 
 stage of the proceedings when the fact is discovered." 
 
 the bank may be cbarged as tbe gai-nishee of the city therefor. These 
 funds are not exempt from garnishment as pul;)lic revenues. Mur- 
 pliree v. City of Mobile (Ala.) 18 South. 740. 
 
 "sMcCoombe v. Dunch, 2 Dall. 73; Peaooek v. Wildes, 8 N. J. 
 Law, 179. 
 
 '< " Homstead v. I..Qomis, 53 JNle. 549. 
 
 "Bryant v. Pussel, 11 R. I. 286; Boyden v. Ward, 38 Vt. 628. 
 Contra, Harmon v. Osgood, 151 ilass. 501, 24 N. E. 401. 
 
 7 9 Chanute v. Martin, 25 111, 49. 
 (18) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 14 
 
 CHAPTER II. 
 
 WHO MAY BE MADE A GARNISHEE. 
 
 5 34. Grounds of Exemption — Praftice. 
 
 15. Nonresidents. 
 
 16. Private Corporations— Domestic. 
 
 17. Foreign. 
 
 18. Municipal Corporations — Are not Gainisliable. 
 
 19. Municipal Officers not Garnishable. 
 
 20. — — A Matter of Statutory Construction. 
 
 21. Reasons for Exempting Municipal Corporations. 
 
 22. Reasons for not Exempting Municipal Corporations. 
 
 23. Exemption a Privilege Which may he Waived. 
 
 24. Chancery Garnishment. 
 
 25. State and National Governments and Their Officers— Not Gar- 
 
 nishable Except by Consent. 
 2C. Public Officers not Garnishable. 
 
 27. Courts and Their Officers— Not Garnishable for Property Held 
 
 Officially. 
 
 28. — — • Some Officers Held not within the Rule. 
 
 29. Exemption not a Privilege of the Officer, but of the Court. 
 
 30. Chancery Garnishment. 
 
 SI. Statutes Affecting Liability of Court Officers. 
 
 32. Limitation of the Rule that Officers are not Garnishable.— 
 
 The Reason I>imits the Rule. 
 S."}. — — Officers Garnishable after Court Orders Payment. 
 
 :U. ■ And for Balances after Litigation is Concluded. 
 
 35. Limitation Applies to Administrators, Executors, Sheriffs, 
 
 etc. 
 30. Attorneys at Law. 
 
 37. Common Carriers. 
 
 38. Infants, Ijunatics, and Married Women. 
 
 39. Plaintiffs. 
 
 40. Defendants. 
 
 41. Husband or Wife of Defendant. 
 
 42. Officers and Agents of Defendant Corporations— Not Garnish- 
 
 able in Suits against Corporations. 
 
 43. Contra. 
 
 (19) 
 
§ 15 LAW OF GARNISHMENT. [Ch. 2 
 
 Grounds of Exemption — Practice. 
 
 § 14. The broad language of most of the garnish- 
 ment statutes would indicate that "any person" may 
 be charged as a garnishee, but courts have been fre- 
 quently asked to determine whether the legislature did 
 not intend a much more restricted application of the 
 statute than its language would imply. The princi- 
 pal grounds upon which these contentions have been 
 based are considerations of public policy, the construc- 
 tion of the terms of the statute, the peculiar relations 
 which the person sought to be charged sustains to the 
 general public or to one of the parties to the action, his 
 disability to be sued, and the power of the court to 
 bind him by its process.^ When one not amenable to 
 garnishment is summoned, he should be discharged up- 
 on motion without answer.^ The application for dis- 
 missal must be made to the court into which the gar- 
 nishee is summoned, and the court whose officer he is 
 will not proceed by contempt to punish the garnishing 
 creditor.^ These various classes of cases we will pro- 
 ceed to consider. 
 
 Nonresidents. 
 
 § 15. A nonresident of London could not be held as 
 garnishee under the special custom of London; * and 
 
 1 To the effect that the intent of the legislature is not necessarily 
 found in the plain terms of the statute, see Staniels v. Raymond, 4 
 Cush. 314; Town of Kyegate v. Town of Wardsboro, 30 Vt. 746. 
 
 2 Merwin v. Chicago, 45 lU. 133, 92 Ara. Dec. 204; Lord v. Meachem, 
 32 Minn. 66, 19 N. W. 346. 
 
 3 Ex parte Schulenburg, 25 Fed. 211. 
 
 * 1 Sauna. 67, note a; Tamm v. Williams, 2 Chit. 438; 3 Doug. 281; 
 (20) 
 
Uh. 2] WHO MA.Y BIS MADE A GARNISHEE. § 15 
 
 the English rule seems to have been followed by the 
 courts of the New England states and some others." 
 Generally, this holding seems to be on the ground that 
 the situs of the debt owed by the garnishee does not 
 migrate with him wherever he may go, but remains 
 continually at the domicile of the defendant, unless 
 made payable at some other place; and, therefore, 
 that, in case the defendant is a nonresident, the court 
 acquires no jurisdiction of the property by service of 
 the summons on the garnishee within the state, 
 though it thereby acquires jurisdiction of the person 
 of the garnishee." Therefore the same courts hold 
 that where such nonresident served as garnishee has 
 the defendant's property in his possession within the 
 
 Crosby v. Hetherington, 4 Man. & G. 933; Day v. Paupierre, 7 Dowl. 
 & L. 12; 13 Adol. & E. (N. S.) 802. 
 
 s Tingley v. Bateman, 10 Mass. 343; Ray v. Underwood, 3 Pick. 302; 
 Hart V. Anthony, 15 Pick. 445; Nye v. Liscombe, 21 Pick. 26-1; Allen 
 V. Wriglit, 134 Mass. 347; Young v. Ross, 11 Fost. (N. H.) 201; Saw- 
 yer V. Thom)3son, 24 N. H. 510; Lawrence v. Smith, 45 N. H. 533, 86 
 Am. Dec. 183; Baxter v. Vincent, 6 Vt. 014; Rindge v. Green, 52 Vt. 
 204; Craig v. Gunn, 67 Vt. 92, 30 Atl. 860; Cronin v. Poster, 13 R. 1. 
 190; Lovejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630; Green v. Far- 
 mers' & Citizens' Bank, 25 Conn. 452; Willet v. Equitable Ins. Co., 10 
 Abb. Prac. 193; Miller v. Hooe, 2 Cranch, C. C. 622, Fed. Cas. No. 
 9,573; Northtield Knife Co. v. Shapleigh, 24 Neb. 635, 39 N. W. 788; 
 Peters v. Rogers. 5 Mason, 555, Fed. Cas. No. 1,033. 
 
 ? Lawrence v. Smith, 45 N. H. 533; Illinois Cent. Ry. Co. v. Smith, 
 70 Miss. 344, 12 South. 461; Louisville & N. Ry. Co. v. Dooley. 78 Ala. 
 524; Smith v. Eaton, 36 Me. 298, 58 Am. Dec. 746; Wright v. Chi- 
 cago, B. & Q. Ry. Co., 19 Neb. 175, 27 N. W. 90, 94; Commercial Nat. 
 Bank v. Chicago, M. & St. P. Ry. Co., 45 Wis. 172; Renter v. Hurl- 
 but. 81 Wis. 24, 50 N. W. 783. Contra, Allen v. Wright, 134 Mass. 
 349. See, also, cases cited under note 5, above. 
 
 (21) 
 
§ 16 LAW OF GARNISHMENT. [Ch. 2 
 
 state, ^ or is bound to pay or deliver to him witMn tlie 
 jurisdiction,' or a part of several joint garnishees are 
 residents of the state, they may be held as garnishees.* 
 But other states hold that a nonresident may be char- 
 ged as garnishee though defendant is a nonresident 
 and the debt is made payable out of the state.^" 
 
 Private Corporations. 
 
 Domestic . 
 
 § 16. It has frequently been contended that the 
 terms "any person" refer only to natural persons, and, 
 therefore, that corporations are not liable to be made 
 garnishees unless the statute particularly states that 
 they shall be; but it has been generally held that cor- 
 porations are liable to the process, though not special- 
 ly mentioned in the statute.^^ But service of process 
 upon the officers and parties in interest in a prospec- 
 tive corporation before its charter is granted has been 
 
 7 Young V. Ross, 31 N. H. 201; Molyneux v. Seymour, 30 Ga. 440, 
 76 Am. Dec. 662; Cassity v. Cota, 54 Me. 380; Marqueze v. Le Blanc, 
 29 La. Ann. 194. 
 
 s Jones y. Winchester, 6 N. S. 497; Commercial Nat Bank v. Chi- 
 cago, M. & St. P. Ry. Co., 45 Wis. 179. 
 
 9 Parker v. Daiifoi'th, 16 Mai3s. 299; Peck v. Barnum, 24 Vt. 75. 
 
 10 Morgan v. Neville, 74 Pa. St. 52; Burlington & M. R. Ry. Co. v. 
 Thompson, 31 Kan. ISO, 1 Pac. 622. See. also, post, § 242. 
 
 11 Knox V. Protection Ins. Co., 9 Conn. 430, 25 Am. Dec. 33; St. 
 Louis Perpetual Ins. Co. v. Cohen, 9 Mo. 416, 421; Taylor v. Burling- 
 ton & M. R. Ry. Co., 5 Iowa, 114, 123; Boyd v. Chesapeake & 0. 
 Canal Co., 17 Md. 105, 79 Am. Dec. 646; Baltimore & O. Ry. Co. v. 
 Gallahue, 12 Grat. (A'a.) 655, 65 Am. Dec. 2.14; Mineral Point Ry. Co. 
 V. Keep, 22 III. 9, IS, 74 Am. Dec. 124. Contra, Hewitt v. Wagar 
 Lumber Co., 38 Mich. 701. 
 
 Corporations held not liable to be held as garnishee because inca- 
 pable of testifying. President, etc., of Union Turnpike v. Jenkins, 2 
 Mass. 37; Holland v. Leslie, 2 Har. (Del.) 306. 
 (22) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 17 
 
 held to be service upon neither the corporation nor 
 the persons composing it.* 
 
 Foi-eign. 
 
 § 17. A corporation which is chartered in more 
 than one state may be garnished as a domestic corpo- 
 ration in all the states in which it is chartered; ^^ and 
 a cornoration, under the laws of the United States, is 
 not a foreign corporation in any of the states in which 
 it conducts its business.^' But whether or not a for- 
 eign corporation may be charged as a garnishee with- 
 out special statute declaring such corporations to be 
 liable to the process is not agreed. The determina- 
 tion of the question rests upon the same considera- 
 tions which control the decisions upon the similar lia- 
 bility of nonresident natural persons; therefore, those 
 states which hold that nonresidents cannot be made 
 garnishees hold the same of foreign corporations.^* 
 
 *Bartram v. Collins Manuf'g Co., 69 Ga. 751. 
 
 12 Mobile & O. Ry. Co. v. Barnhill, 91 Tenn. 395, 19 S. W. 21; Hol- 
 land V. Mobile & O. Hy. Co., 16 Lea (Tenn.) 414; Baltimore & O. Ry. 
 Co. V. Gallahue, 12 Giat. (Va.) 655, 65 Am. Dec. 254; Mahany v. Kep- 
 bart, 15 W. Va. 609; Smith v. Boston, C. & M. Ry., 33 N. H. 33T. See, 
 also, Sprague v. Hartford, B. & L. Ry. Co., 5 R. I. 233. 
 
 13 Mooney v. Union Pae. Ry. Co., 60 Iowa, 346, 14 N. W. 343; Losee 
 V. McCarty, 5 Utah, 528, 17 Pac. 452. 
 
 1* Gold V. Housatonic Ry. Co., 1 Gray, 424; Danforth v. Penny. 3 
 Mete. (Mass.) 564; Larkin v. Wilson, 106 Mass. 120; Smith v. Boston, 
 C. & M. Ry. Co., 33 N. H. 337; Bradford v. Mills, 5 R. I. 393; Craig 
 V. Gunn, 67 Vt. 92, 30 Atl. 860; Towle v. Wilder, 57 Vt. 622; Green 
 V. Farmers' & Citizens' Bank, 25 Conn. 4.")1; Alabama G. S. R. Co. v. 
 Cbumbey, 92 Ala. 317, 9 South. 286; Wright v. Chicago, B. & Q. 
 Ry. Co., 19 Neb. 175, 27 N. W. 90; Plimpton v. Bigelow. 9:! N. Y. 502, 
 
 DOING BUSINESS AND ACTIONS ARISING IN THE STATE; 
 In Maryland, where the statute authorized suits by nonresidents 
 against foreign corporations exercising franchises there "when the 
 cause of action has arisen or the subject of the action shall be situated 
 
 (23) 
 
§ 17 LAW OF GARNISHMENT. [Ch. 2 
 
 It lias been further urged that corporations, being 
 merely legal creations, can have no existence outside 
 of the state where they are incorporated/'* On the 
 other hand, it has been very generally held that for- 
 eign corporations are liable to be charged as gar- 
 nishees the same as domestic corporations, without ex- 
 press statute/" Many garnishment statutes express- 
 ly declare that foreign corporations may be garnished; 
 
 in this state," it was lield that a British insurance company doing busi- 
 ness through an agent could not be charged as garnishee on account of 
 a loss under a policy issued to nonresidents by an agent in Chi(;ago, 
 111., upon property in that city, because the holders of the policy could 
 not sue the company thereon in Maryland. Myer v. Liverpool, L. & 
 G. Ins. Co., 40 Md. 595. 
 
 A foreign insurance company merely having an auditing otflce in 
 the state held not to be doing business in the state, within the mean- 
 ing of the statute authorizing the garnishment of foreign corporations 
 doing business in the state. Schmidlapp v. La Confiance Ins. Co., 71 
 Ga. 246. 
 
 Such a company doing business in the state when summoned, and 
 withdrawing afterwards, is "residing in the state" sufficiently to sup- 
 port the garnisliment. Weed Sewing-Machine Co. v. Boutelle, 56 
 Vt. 570. 
 
 15 Douglass v. Phceni.Y Ins. Co., 138 N. Y. 209, 33 N. B. 938; Craig 
 V. Gunn, 67 Vt. 92, 30 Atl. 860. 
 
 16 .Tones v. Xew York & E. Ry. Co., 1 Grant, Gas. (Pa.) 457; Fithian 
 V. New York & E. Ry. Co., 31 Pa. St. 114; Barr v. King, 96 Pa. St. 
 4S5; Brauser v. New England Fire Ins. Co., 21 Wis. 516; McAllister 
 V. Pennsylvania Ins. Co., 28 Mo. 214; Hannibal & St. J. Ry. Co. v. 
 Crane, 102 111. 249, 40 Am. Rep. 581; Midland Pac. Ry. Co. v. McDer- 
 mid, 91 111. 170; Pennsylvania R. Co. v. Peoples, 31 Ohio St. 537; 
 Selma. R. & D. Ry. Co. v. Tyson, 48 Ga. 351; Neufelder v. German- 
 American Ins. Co., 6 Wa?h. 336, 33 Pac. 870; Dittenhoefer v. Coeur 
 d'Alene Clothing Co., 4 Wash. St. 519, 30 Pac. 660; New Orleans, I. 
 & G. N. Ry. Co. V. Wallace, 50 Miss.. 244; Mooney v. Union Pac. Ry. 
 Co., 60 Iowa, 346, 14 N. W. 343; Rainey v. Maas, 51 Fed. 580; Bur- 
 lington (fe M. R. Ry. Co. V. Thompson, 31 Kan. 180, 1 Pac. 622; Mo- 
 bile & O. Ry. Co. V. Barnhill, 91 Tenn. 395, 19 S. W. 21. 
 
 (1'4) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 17 
 
 and inasmuch as corporations are mere creations of 
 local law, and even the recognition of their existence 
 by other states depends purely upon the comity of 
 those states, the conditions upon which they shall be 
 allowed recognition and the right to do business are 
 absolutely v/ithin the discretion of the legislature. It 
 follows that, whether reasonable or unreasonable in 
 their conditions, these statutes are valid and binding.'' 
 In such cases it is no defense to say that the debt 
 sought to be reached is not made payable in the state,'' 
 or, by the terms of the contract, is payable elsewhere." 
 
 1' First Nat. Bank v. Burch, 80 Mich. 242, 45 N. W. 93; National 
 Bank v. Huntington, 129 Mass. 444; Cousens v. Lovejoy, 81 Me. 467, 
 17 Atl. 495; National Fire Ins. Co. v. Cliambers (N. ,1. Ch.) 32 Atl. 068. 
 
 1 8 Moshassuck Felt Mill v. Blanding, 17 R. I. 297, 21 Atl. 538. 
 
 i» Roche V. Rhode Island Ins. Co., 2 111. App. 360. 
 
 PROTECTIVE FORCE OF JUDGMENT AGAINST GAR- 
 NISHEE: A Connecticut corporation, having agents and doing busi- 
 ness in Pennsylvania, insured property situated in and belonging to a 
 resident of New Jersey; and, after the insured property was destroyed 
 by fire and the loss adjusted, a Massachusetts creditor pf the insured 
 brought suit against him, and garnished the insurance money in a 
 Pennsylvania court, and recovered judgment against defendant and 
 garnishee; and, after the garnishment was served, an assignee of the 
 insured sued the insurance company in New Jersey, claiming that the 
 Pennsylvania court had no jurisdiction. Upon a bill of interpleader 
 by the insurance company against all the parties, the court upheld 
 the garnishment saj-ing: "It is difficult to perceive what difference it 
 makes to Chambers [the defendant] or his subsequent assignee wheth- 
 er it [the garnishment] be instituted in Pennsylvania, as the couven- 
 tional domicile of the'garnishee, or in Connecticut, its actual domicile. 
 * * * No question can possibly be raised as to the right of the legis- 
 lature of Connecticut (complainant's domicile of origin) to authorize 
 its court to entertain such jurisdiction. * * * jf^ then, the courts 
 of Pennsylvania were open, as the course of decisions shows them 
 to be, to Mr. Chambers to sue the complainant on his policy in the 
 
 (25) 
 
§ 18 LAW OF GARNISHMENT. [Cll. 2 
 
 Municipal Corporations. 
 
 Are not Garnishable. 
 
 § 18. It has been held upon grounds of public pol- 
 icy that municipal corporations, such as townships,^" 
 counties,^^ cities," school districts,^^ school boards,^* 
 
 state of Pennsylvania, why was not the right to do so attachable?" 
 National Fire Ins. Co. v. Chambers (N. J. Ch.) 32 Atl. 663. See, also, 
 post, § 245. 
 
 20 Bradley v. Kichmond, 6 Vt. 121. Contra: Bray v. Wallingford, 
 20 Conn. 416; Whidden v. Drake, 5 N. H. 13. See, also, Walker v. 
 Cook, 129 Mass. 577. 
 
 21 McDougal V. Board of Sup'rs of Hennepin Co., 4 Minn. 184 (Gil. 
 130); AA'allace v. Lawyer. rA Ind. 501, 23 Am. Rep. 661; State v. 
 Eberly, 12 Neb. 636, 12 N. W. 06; Merrell v. Campbell, 49 Wis. .''.35, 
 5 N. W. 912; Ward v. Hartford Co., 12 Conn. 404; Dotterer v. Bo we, 
 84 Ga. 769, 11 S. E. 896; Boone Co. v. Keck, 31 Ark. 387; Board of 
 Com'rs of Las Animas Co. v. Bond, 3 Colo. 411; Stermer v. Board of 
 Com'rs of La Plata Co. (Colo. App.) 38 Pac. 839; Board of Com'rs of 
 Mesa Co. v. Brown (Colo. App.) 39 Pac. 989; Gann v. Cribbs (Colo. 
 App.) 41 Pac. S29; Sheppard v. Cape Girardeau Co. (Mo. Sup.) 1 S. 
 W. 305. Contra: Waterbury v. Board of Com'rs of Deer Lodge Co., 
 10 Mont. 515, 26 Pac. 1002; Adams v. Tyler, 121 Mass. 380. 
 
 2 2 Memphis v. Laski, 9 Heisk. (Tenn.) 511, 24 Am. Rep. 327; Haw- 
 thorn V. St. Louis, 11 Mo. 59, 47 Am. Dec. 141; Fortune v. St. Louis, 
 23 Mo. 239; Merwm v. Chicago, 45 111. 133, 92 Am. Dec. 204; Burn- 
 ham V. Fond du Lac, 15 Wis. 193; Buffham v. Racine, 26 Wis. 449; 
 Baltimore v. Root, 8 Md. 95; Switzer t. Wellington, 40 Kan. 230, Id 
 
 2 3 School Dist. No. 4 of Marathon v. Gage, 39 Mich. 484, 33 Am. 
 Rep. 421; Hightower v. Slaton, 54 Ga. 108, 21 Am. Rep. 273; Cham- 
 berlain V. Watters, 10 Utah, 298, 37 Pac. 566; Skelly v. Westmiui.ster 
 School Dist., 103 Cal. 652, 37 Pac. 643; Kein v. School Dist., 42 Mo. 
 App. 460; Millison v. Fisk, 43 111. 112; Bivens v. Harper, 59 111. 21. 
 Contra: Seymour v. Over River School Dist., 53 Conn. 502, 3 Atl. 
 552; Burton v. District Township of Warren, 11 Iowa, 160; Whalen v. 
 Harrison, 11 Mont. 63, 27 Pac. 384. 
 
 2* See following page. 
 (26) 
 
^1'- ^] WHO MAY BE MADE A GARNISHEE, § 19 
 
 and the like, are not subject to garnishment process 
 unless expressly included in the terms of the statute; 
 and almost as frequently it has been decided that they 
 are, as will appear by the cases cited contra above. 
 
 Municipal Officers not Garnishable. 
 
 § 19. Where it is held that municipal corporations 
 are not subject to garnishment, their officers are like- 
 wise exempt from liability for what they hold in their 
 official capacity. Besides several of the above cases 
 in which garnishment of the officer has been treated 
 as a garnishment of the municipality, this question 
 has been adjudicated in cases in which it has been at- 
 tempted to charge as garnishee a loan officer,^'' a pros- 
 
 Pac. 620; First Nat. Bank v. Ottawa, 43 Kan. 294, 23 Pac. 485; Peo- 
 ple V. Omalia, 2 Neb. 1G6; Mobile v. Rowland, 26 Ala. 498; Porter & 
 Blair HarUware Co. v. Perdue (Ala.) 16 South. 713; Erie v. Knapp, 
 29 Pa. St. 173; McLellan v. Young, 54 Ga. 399, 21 Am. Rep. 276; 
 Bank of Southern Georgia v. Mayor, etc., of Americus, 92 Ga. 301, 17 
 S. E. 287; Leake v. Lacey (Ga.) 22 S. E. 6.55. CONTRA: Rodman v. 
 Musselman, 12 Bush (Ky.) 354, 23 Am. Rep. 724; Newark v. Funk, 
 15 Ohio St. 462; Wales v. Muscatine, 4 Iowa, 302; Clapp v. Walker, 
 25 Iowa, 315; Adams v. Tyler, 121 ilass. 380; Wilson t. Lewis, 10 
 R. I. 285; Mayor, etc., of Jersey City v. Horton, 38 N. J. Law, 88; 
 City of I>aredo v. Nalle, 05 Tex. 359; City of Denver v. Brown, 11 
 Colo. 337, 18 Pac. 214; Sauer v. Nevadaville, 14 Colo. 54, 23 Pac. 87. 
 
 24 Clark V. Mobile School Com'rs, 36 Ala. 621; Board of Education 
 of City and County of San Francisco v. Blake (Cal.) 38 Pac. 53(i; Doll- 
 man V. Moore, 70 Miss. 267, 12 South. 23; Bulkly v. Bckert, 3 Pa. St. 
 368; Born v. Williams, 81 Ga. 796, 7 S. E. 868; Bank of Southern 
 Georgia v. Mayor, etc., of Americus, 92 Ga. 361, 17 S. E. 287. 
 
 When the statute makes neither the township nor the school dis- 
 trict liable for teacher's wages otherwise than on order of the school 
 committee, held, that the wages were not garnishable till the order 
 is given, as no one is liable till then. Spencer v. School Dist. No. 17 
 of Warwick, 11 R. I. 537. 
 
 2 5 Spalding v. Imlay, 1 Root (Conn.) 551. 
 
 (27) 
 
§ 21 LAW OF GARNISHMENT. [Ch. 2 
 
 ecuting attorney,^" chief of police," a county clerk,'* 
 a county treasurer/' and a city treasurer/" Attempts 
 to charge public officers for the debts of the public body 
 they represent must always fail, if for no other reason 
 than that they are not personally liable." 
 
 A Mailer of Statutory Construction. 
 
 § 20. The whole question depends upon statutory 
 construction; and if the garnishment or other stat- 
 utes in pari materia indicate an intention on the part 
 of the legislature to make such corporations and their 
 officers subject to the process, or exempt from it, the 
 courts are bound to fulfill that intention, although not 
 expressly stated. ^^ 
 
 Reasons for Exempting Municipal Oorporations. 
 
 § 21. The reasons given for holding public corpora- 
 tions and their officers not subject to garnishment pro- 
 ccj^s except by force of special statute that they shall 
 be are that they are a part of the government; hold 
 their powers in trust for the common good; should be 
 permitted to act only with reference to that object; 
 that the settlement of their accounts and the transac- 
 tion of the public business should not be interfered 
 wij;h to promote private interest or convenience; that 
 the public welfare might be seriously interrupted if 
 
 2 Stillman v. Isliam, 11 Conn. 124. 
 
 2 7 Connolly v. Thui'ber Whyland Co., 92 Ga. fi.Jl, 18 S. E. 1004. 
 
 2s Merrell v. Campbell, 49 Wis. 535, 5 N. W. 912; Smith v. Fiulen, 
 23 111. App. 15G. 
 
 29 Cliealy v. Brewer, 7 Jfass. 2.j0. 
 
 30 Triebel v. Colburn, 64 111. 376; Smith v. Woolsey, 22 111. App. 185. 
 
 31 Id. See, also, post, § 57. 
 
 3 2 City of Denver v. Brown, 11 Colo. 337, 18 Pac. 214; Jeuks v. 
 Osceola Tp., 45 Iowa, 554; Wilson v. Lewis, 10 R. I. 285. 
 
 (28) 
 
Ch. 2] WHO MAY BE MADE A GAB:!«ISHEE. § 22 
 
 these officers could at any time be called away from 
 their municipal duties to answer and defend the liti- 
 gation of private creditors of the corporations; and 
 that the public weal would be imperiled if contractors 
 and employes, as well as the enterprises of the corpo- 
 ration, could be thus paralyzed by the seizure and seq- 
 uestration of the wages upon which the contractors 
 and employes depend for the performance of their con- 
 tracts/^ 
 
 Seasons for not Exempting Municipal Corporations. 
 
 § 22. Those courts which hold municipal corpora- 
 tions liable to be made garnishees under the general 
 terms of the statutes deny the soundness and weight 
 of these arguments in actual practice, maintaining 
 that there is no reason why the public functions of 
 these bodies or the transaction of their business need 
 be deranged or improperly performed by reason of 
 their being compelled by legal process to hold and 
 finally pay over a sum of money in which they have no 
 interest to one person rather than another. They urge 
 that the garnishee has no suit to defend, no counsel to 
 employ, no witnesses to collect or pay; that no burden 
 is cast upon it, and no duty, except to act as stake- 
 holder to await the determination of an action in 
 which it has no interest. As to the sequestration of 
 
 3 3 Memphis v. Laski, 9 Heisk. (Tenii.) 511, 24 Am. Rep. 327; Mer- 
 win V. Chicago, 45 111. 133, 92 Am. Dec. 204; Leake v. Lacey (Ga.) 22 
 S. B. 655. See, also, cases above cited. 
 
 Where it is held that only money due on contract can be reached by 
 garnishment, it is held that fees due a juror, and the like, cannot be 
 reached by garnishing the county, for there is no privity of contract. 
 Williams v. Boai'dmau, 9 Allen (Mass.) 570. See, also, Walker v. 
 Cook, 129 Mass. 577. 
 
 (29) 
 
§ 23 LAW OF GARNISHMENT. [Ch. 2 
 
 the wages of public officers, it is said that the public 
 generally has no difficulty in obtaining employes to 
 do its work; that, surely, as good service may be ob- 
 tained from those who pay their debts as from those 
 who avoid such payment; and that it would be impol- 
 itic to induce dishonest persons to seek public employ- 
 ment by protecting them in such avoidance." 
 
 Exemption a Privilege Which may be Waived. 
 
 § 23. Where such corporations are held exempt 
 from liability, it is generally considered as an exemp- 
 tion for their benefit, which they may waive, and, be- 
 ing a personal privilege, that it cannot be claimed by 
 the defendant. ^^ 
 
 34 Waterbury v. Board of Com'rs of Deer Lodge Co., 10 Mont. 515, 
 20 Pac. 1002. See cases cited above. 
 
 3'' Commissioners of Las Animas Co. v. Bond, 3 Colo. 411; Burton 
 V. District Townsliip of Warren, 11 Iowa, 166; Clapp v. Walker, 25 
 Iowa, 315; DoUman v. Moore, 70 Miss. 267, 12 South. 23; Skelly v. 
 Westminister School Dist., 103 Gal. 652, 37 Pac. G43. Contra: School 
 Dist No. 4 of Marathon v. Gage, 39 Mich. 484, 33 Am. Rep. 421; Born 
 T. Williams, 81 Ga. 796, 7 S. B. 868. 
 
 Although a person in the employ of a municipality may claim thf 
 exemption, as well as the municipality itself, and neither could 
 waive the exemption, so as to bind the other, yet when he has ceased 
 to be an employ^, and the demand has been merged in a judgment, 
 the demand represented by this judgment may be reached by garn- 
 ishment against the municipality if it waives its exemption, although 
 the defendant objects to such waiver. Baird v. Rogers (Tenn.) 32 
 S. W. 630. 
 
 WHAT AMOUNTS TO WAIVER: Held, that the exemption is not 
 waived by a county clerk answering for the county the interrogatories 
 accompanying the writ, as in doing so he acted in the character of a 
 witness merely, and did not represent the county. Stermer v. Board 
 of Com'rs of La Plata Co. (Colo. App.) 38 Pac. 839. Held, that the 
 exemption is not waived by failure to urge It before a commissioner 
 appointed by the court to take garnishee's answer, the commissioner 
 (30) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 24 
 
 Chnnccnj Garnishment. 
 
 § 24. There are also decisions to the effect that, 
 though such corporations be considered as exempt 
 from the statutory garnishment at law, yet the plain- 
 tiff may acquire the same benefits by a bill in equity 
 making a proper showing.^" 
 
 having no authority to pass upon the question of exemption. Jenks v. 
 Osceola Tp., 4r> Iowa, 554. Compare Swltzer v. City of Wellington, 40 
 Kan. 250, 19 Pac. 621. Whether making plaintiffs parties to suit to 
 settle defendant's accounts waives exemption, query. Count.v of Des 
 Moines v. Hinkley, 62 Iowa, 637, 17 N. W. 915. 
 
 EXEMPTION CANNOT BE WAIVED: "The exemption is not for 
 the benefit of the officer, but because the public is not to be harassed 
 and inconvenienced by petty suits in the shape of garnishments." 
 McLellan v. Young, 54 Ga. 399, 21 Am. Rep. 276. Therefore, the 
 officers of the municipality for the time being cannot waive the ex- 
 emption, and the court will dismiss the proceeding on the motion of 
 an amicus curiae. Porter & Blair Hardware Co. v. Perdue (Ala.) 16 
 South. 713. 
 
 If the officers were allowed to claim the privilege or not, they could 
 waive the exemption in favor of one creditor, and insist upon it against 
 another, which would be impermissible. First Nat. Bank v. Ottawa, 
 43 Kan. 294, 23 Pac. 485. 
 
 After the release of the garnishee city on bond, held, that the sureties 
 on the bond may defend that the city was exempt. City of Dallas v. 
 Western Electric Co., 83 Tex, 243. 18 S. W. 5.j2; Born v. Williams, 
 81 Ca. 796, 7 S. E. 808. 
 
 It the garnishee fails to claim the exemption, allows judgment to 
 be rendered against It, and pays the judgment, such payment con- 
 stitutes no defense to an action against it by its creditor, to recover 
 the amount of his wages. School Dist. No. 4 of Marathon v. Gage, 
 39 Mich. 484, 33 Am. Eep. 421. Contra: Skelly v. Westminister 
 School Dist., 103 Cal. 652, 37 Pac. 643. 
 
 3» Pendleton v. Perkins, 49 Mo. 565; Speed v. Brown, 10 P.. Mou. 
 (Ky.) 108; Dollman v. Moore, 70 Miss. 267, 12 South. 23. 
 
 (31) 
 
§ 25 LAW OF GARNISHMENT. [Cll. 2 
 
 State and National Governments and Their Officers. 
 
 Not Garnishable except by Consent. 
 
 § 25. Every consideration adverse to holding mu- 
 nicipal corporations liable to garnishment applies to 
 similar proceedings against the governments and their 
 officers.'^ Moreover, the government, being the sov- 
 ereign, cannot be sued without its own consent, signi- 
 fied by express statute.'* Garnishment proceedings 
 are in the nature of a suit or proceeding against the 
 garnishee, and therefore the governments cannot be 
 made g:arnishees unless their statutes expressly de- 
 clare that they may be.''" 
 
 3 7 Drake, Attachm. § 516a; Buchanan v. Alexander, 45 TJ. S. 20. 
 
 38 Briscoe v. Bank of Kentucky, li Pet. 257; Beers v. Arkansas, 20 
 How. 527; Hunsakef t/. Borden, 5 Cal. 288, 290, 63 Am. Dec. 130. 
 
 The people of the state, being the sovereign, have succeeded to the 
 rights of the king; and "when a statute is general, and any preroga- 
 tive right, title, or interest would be divested or taken from the king, 
 in such case he shall not be bound, unless the statute is made by ex- 
 press words to extend to him." People v. Herkimer, 4 Cow. (N. Y.) 
 345, 15 Am. Dec. 379. 
 
 3 9 McMeekin v. iState, 9 Ark. 553; Loder v. Baker, 39 N. J. Law, 49; 
 KoUo V. Andes Ins. Co., 23 Grat. (Va.) 509, 14 Am. Rep. 147; Provi- 
 dence & S. S. Co. V. Virginia P. & M. Ins. Co., 11 Fed. 284; Dotterer 
 V. Bowe, 84 Ga. 769, 11 S. E. 896. 
 
 "It would be a strange anomaly in the law if by his [defendant's] 
 procurejnent his creditor could, by indirection, litigate against the 
 commonwealth the amount of that claim which he could not himself 
 directly try." Dewey v. Garvey, 130 Mass. 87. 
 
 A VOUCHER for money due from the United States is garnishable 
 as a chose in action in the hands of a private individual, for this In- 
 volves no proceeding against the government. Leighton v. Heagerty, 
 21 Jlinn. 42. Compare Peabody v. Maguire, 79 Me. 572, 12 Atl. 630. 
 
 CHANCERY GARNISHMENT: The plaintiff cannot obtain the 
 benefits of a garnishment by a bill in chancery to which the govern- 
 (32) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 26 
 
 Public Officers not Gnrnishable. 
 
 § 26. The objection cannot be obviated, and the 
 same object obtained, by ignoring the government, and 
 proceeding directly against the officer having custody 
 of the property sought to be reached.*" 
 
 ment or the officer is made a party. Bank of Tennessee v. Dibrell, 3 
 Sneed (Tenn.) 379. But it may be that the same thing may be ac- 
 complished to a large extent by injunction against the defendant. 
 Forrest v. Price, 52 N. J. Eq. 16, 29 Atl. 215. 
 *o Tracy v. Hornbuckle, 8 Bush (Ky.) 336; Divine v. Harvie, 7 T. 
 
 B. Men. (Ky.) 439, 18 Am. Dec. 194; Tate v. Salmon, 79 Ky. 540; 
 Buchanan v. Alexander, 4 How. 20; Averill v. Tucker, 2 Cranch, C. 
 
 C. 544, Fed. Cas. No. 670; Fischer v. Daudistal, 9 Fed. 145; Wild 
 V. Ferguson, 23 La. Ann. 752; Pennebaker v. Tomlinson, 1 Tenn. 
 Ch. Ill; Debbins v. Orange & A. Ry. Co., 37 Ga. 240; O'Neill v. 
 Sewell, 85 Ga. 481, 11 S. B. 831. 
 
 OFFICER OF DE FACTO GOVERNMENT: During the Rebellion, 
 an agent of the Confederacy who, as such, received property, was 
 afterwards summoned as garnishee; and it was held that, though the 
 government was illegal, it was the de facto government, and its agents 
 could not be made garnishees. Wilson v. Bank of Louisiana, 55 Ga. 
 98. 
 
 MONEY BELONGS TO GOVERNMENT TILL PAID OUT: 
 '•iloney in the hands of a disbursing officer of the United States due 
 to a private person cannot be attached on process against such per- 
 son out of a state court, because the money will not be his, but will 
 remain the property of the United States until paid to him." Gil- 
 bert V. Quimby, 1 Fed. Ill, 17 Blatchf. 402; citing Buchanan v. Alex- 
 ander, 4 How. 20. 
 
 MONEY DUE FOR PENSIONS while in the hands of the dis- 
 bursing officer or agent for distribution, or in course of transmission 
 to the pensioner, is not liable to be seized by creditors under any legal 
 process. Jardain v. Fairton Saving Fund & Building Ass'n, 44 N. J. 
 Law, 376. See, also, post, § 99. 
 
 WHEN GOVERNMENT IS PLAINTIFF: As the rule that the 
 government and its officers cannot be made garnishees is established 
 solely in the interest of the former, it does not apply when the gov- 
 ernment is the plaintiff. U. S. v. Murdock, 18 La. Ann. 305, 89 Am. 
 Dec. 651. 
 
 LAW GARNISH. 3 (33) 
 
§ 27 LAW OP GARNISHMENT. [Ch. 2 
 
 Courts and Their OfiBlcers. 
 
 Not Gamishable for Property Held Officially, 
 
 § 27. "When property or money is in custodia legis, 
 the officer holding it is the mere hand of the court. 
 His possession is the possession of the court. To in- 
 terfere with his possession is to invade the jurisdiction 
 of the court itself. And an officer so situated is bound 
 by the orders and judgments of the court whose mere 
 agent he is, and he can make no disposition of it with- 
 out the consent of his own court, express or im- 
 plied." *^ These principles have been applied in nu- 
 merous cases, to various classes of legal custodians, 
 
 41 In re Cunningham, Fed. Cas. No. 3.478, 19 N. B. R. 276, and 9 
 Cent. Law J. 208, in wliich it was attempted to charge an assignee 
 in bankruptcy as garnishee. 
 
 CLIPPINGS PROM OTHER DECISIONS: "It would lead to great 
 confusion if such an oflicer [a receiver] were to be subject or were to 
 be at liberty to take the funds in his official custody into any other tri- 
 bunal, which could have no power to discharge him, to settle his ac- 
 counts, or to punish him for collusion." Tremper v. Brooks, 40 Mich. 
 333. 
 
 "In the common case of agents, trustees, and factors, the creditor can 
 easily place himself in the shoes of the absconding debtor, and pros- 
 ecute his claim vvitliout inconvenience to the garnishee. But such 
 would not be the case with an executor. It would not only embarrass 
 and delay the settlement of estates, but would often draw them from 
 courts of probate, where they ouglit to be settled, before the courtg 
 of law, who would have no power to adjust and settle his accounts." 
 Winchell v. Allen, 1 Conn. 38.5. 
 
 "■tt'hile the money remains in the bauds of the officer, it is in the 
 custody of the law. It does not become the property of the judgment 
 creditor till it is paid over, and consequently it is not liable to be at- 
 tached as his. The writ of attachment could not supersede the execu- 
 tion, or release the sheriff from a literal compliance with its com- 
 mand, which required him to bring the money into court, so that it 
 (34) 
 
•Gh. 2] WHO MAY BE MADE A GARNISHEE. § 27 
 
 and in accordance with them it has been held that 
 clerks of courts,*^ trial justices,*^ registers in chan- 
 cery,^* masters in chancery,*^ receivers,*" trustees ap- 
 pointed by a court of chancery,*' assignees in bank- 
 might be subject to their orders." Dawson v. Holcomb, 1 Ohio, 27G, 
 13 Am. Dec. 018. See. also, Dubois v. Dubois, 6 Cow. (N. Y.) 494; 
 Turner v. Fendall, 1 Cranch, 116. 
 
 •12 Weaver v. Cressuian, 21 Neb. 675, .33 N. W. 478; Lord v. Col- 
 lins, 79 Me. 227, 9 Atl. 611; Draue v. McGavocli, 7 Humph. (Tenn.) 
 132; Sibert v. Humphries, 4 Ind. 481; Ross v. Clarke, 1 Dall. 354; 
 Overton v. Hill, 1 Murph. (N. C.) 47; Alston v. Clay, 2 Hayw. (N. C.) 
 171; Hunt v. Stevens, 3 Ired. (N. C.) .365; Farmer's Bank v. Beaston, 
 7 Gill & J. (Md.) 421, 28 Am. Dec. 226; Murrell v. Johnson, 3 Hill 
 (S. C.) 12; Bowden v. SchatzsU, Bailey, Bq. (S. 0.) 360, 23 Am. Dec. 
 17(1; Pace v. Smith, 57 Tex. 555; Sweetzer v. Claflin, 74 Tex. 667, 
 32 S. W. 395; Curtis v. Ford, 78 Tex. 262, 14 S. W. 614; Lewis v. 
 Dubose, 29 Ala. 219; Falconer v. Head, 31 Ala. 513. 
 
 4 3 Burnham v. Beal, 96 Mass. 217. 
 
 4* Voorhees v. Sessions, 34 Mich. 99. 
 
 4 5 McKenzie v. Noble, 13 Rich. (S. C.) 147; Walsh v. Horine. 36 
 111. 238. 
 
 4 8 Tremper v. Brooks, 40 Mich. 333; Field \. Jones, 11 Ga. 413; 
 Taylor v. Gillian, 23 Tex. 508; Columbian Book Co. v. De Golyer, 
 115 Mass. G7; McGowan v. Myers, 66 Iowa, 99, 23 N. W. 282; Adams 
 V. Haskell, 6 Cal. 113, 65 Am. Dec. 491 ; County of Yuba v. Adams, 
 7 Cal. 35; Farmer's Bank v. Beaston, 7 Gill & J. (Md.) 421, 28 Am. 
 Dec. 226; Nelson v Connor, 6 Rob. (La.) 339; Kreisle v. Campbell 
 (Tex. Sup.) 33 S. W. 8;^2. 
 
 As to the extent to which the United States judiciary act of 1887 
 allows garnishment without consent of court against receivers ap- 
 pointed by United States courts, see Irwin v. Mclvechnie, 58 Minn. 
 14.J, 59 N. W. 987; Central Trust Co. v. Chattanooga, R. & C. Ry. 
 Co., 68 Fed. 685. 
 
 \ statute providing that any receiver may sue or be sued, in his 
 official capacity, without first having obtained leave of the court ap- 
 pointing such receiver to bring such suit, has been held not to 
 authorize garnishing a receiver; the reason for the decision being 
 that garnishment is not a suit. Kreisle v. Campbell (Tex. Sup.) 33 
 S. AV. 852. 
 
 4 7 Bentley v. Slirieve, 4 Md. Ch. 412. 
 
 (35) 
 
§ 27 LAW OF GARNISHMENT. [Ch. 2 
 
 ruptcy/* trustees for creditors under a general assign- 
 ment pursuant to insolvent laws,*" other trustees ap- 
 pointed to dispose of property and apply the avails ac- 
 
 4 8 In re Bridgman, 2 N. B. R. 252, 1 Chi. Leg. News, 103, and Fed. 
 Cas. No. 1867; In re Kohlsaat, 18 N. B. R. 570, Fed. Gas. No. 7,918; 
 In re Chisholm, 4 Fed. 526; Akins v. Stradley, 51 Iowa, 414, 1 N. W. 
 609; Jackson v. Miller, 9 N. B. R. 143; Gilbert v. Lynch, 1 Fed. Ill, 
 17 Blatchf. 402; Ashley, Attachm. (2d Ed.) 29; 9 Petersd. Abr. 711. 
 
 A very carefully considered opinion on this question will be found 
 in Re Cunningham, 19 N. B. R. 276, 9 Cent. Law J. 208, and Fed. 
 Cas. No. 3,478. 
 
 49 Cross T. Brown (R. I.) 33 Atl. 147, 156; Colby v. Coates, 60 Mass. 
 558; Dewing v. Went worth, 65 Mass. 499; Thayer v. Tyler, 5 Allen, 
 94; Lord v. Meachem, 32 Minn. 66, 19 N. W. 346; Kimball v. Mul- 
 hern, 15 111. 205. 
 
 Whether an assignee under a valid assignment for benefit of cred- 
 itors may be made a garnishee in any case without his consent, query. 
 Keiipel V. Moore, 66 Mich. 292, 295, 33 N. W. 499. 
 
 Assignee held garnishable for debt due for services in administering 
 the assignment. Stuckey v. McKihbon, 92 Ala. 622, 8 South. 379. 
 
 Assignees for creditors cannot be charged as garnishees of the as- 
 signor, for the all-sufficient reason that the property does not belong 
 to the latter. Kimball v. Mulhern, 15 111. 205; Van Winkle v. Iowa, I. 
 & S. F. Co., 56 Iowa, 245, 9 N. W. 211; Huffman Implement Co. v. 
 Tenipleton (Tex. App.) 14 S. W. 1015. 
 
 Such a garnishment entitles the plaintiff to whatever may be com- 
 ing to the defendant after the trust is executed, and therefore should 
 be allowed to stand till it can be determined whether anything is left. 
 Moody V. Carroll, 71 Tex. 143, 8 S. W. 510. 
 
 "VOID ASSIGNMENTS:" See post, § 75. 
 
 In sustaining a bill in equity to set aside and declare void a gen- 
 eral assignment under state laws, set up by the garnishee as a 
 defense. Judge Woolson used the following language: "The first 
 point raised by the pleading of said Barnes is as to whether prop- 
 erty in the possession of an assignee under a general assignment for 
 the benefit of creditors is, in the state of Iowa, in custodia legis, 
 so that this court cannot act with reference thereto, or as to the 
 validity of said assignment. * * * If an assignee, carrying into 
 operation within this state a general assignment for the benefit of 
 creditors. Is, within the i-ecognized definition of the term as used in 
 (3«) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 27 
 
 cording to the orders of the court,"" sheriffs, consta- 
 bles, and other ministerial officers," and their bailees 
 
 this respect, an 'oflicer' of the court wherein he files his bond, and 
 to whom he maies his reports, then the property in his hands as 
 such assignee is beyond the power of this court, because the same 
 is within the dominion of, and undisposed of by, the state court; 
 and, as to the funds in the hands of such garnishee, it would seem 
 that the plea must be sustained. The question as to whether such 
 an assignee, in whatever state he may be acting, is an ofilcer of that 
 court which has supervision of his acts, has not met with uniform- 
 ity of answer. To a considerable degree, this contrariety of views 
 may be explained by the differing provisions of statutory enactment 
 in the different states regarding the relation which such assignee 
 sustains to the court to whom his reports are made, and whose di- 
 rection he follows in the performance of his duties. That receivers 
 apitolnted by the direct order of the court, and executors and admin- 
 istrators receiving their appointment from the court, are officers of 
 the courts whose appointments they bear, so far as regards the 
 question now under consideration, has passed beyond the point of 
 doubt, and Is settled by the decisions of all the courts to which 
 counsel have called our attention. But the assignee, in Iowa, does 
 not receive his appointment from the court; and while, under the 
 stjitutes of this state, he is subject to the orders of the state court, 
 and may even be removed by that court for causes provided in the 
 state statutes, yet his appointment is wholly the voluntary act of the 
 assignor. The debtor cannot be compelled to make the assignment. 
 Nor can the state court, by an order or decree, obtain control over, 
 or possession of, the debtor's property, and place it in the hands of 
 such assignee." Rothschild v. Hasbrouck, 65 Fed. 283. This case 
 contains an elaborate opinion, reviewing a large number of federal 
 decisions. 
 
 f'" Fenton v. Fisher, 106 Pa. St. 418; Cockey v. Leister, 12 Md. 124, 
 71 Am. Dec. 588; Thayer v. Tyler, 5 Allen, 94. 
 
 ■'■1 Wilder V. Bailey, 3 Mass. 289; Pollard v. Ross, 5 Mass. 319; 
 TlKimpson v. Brown, 17 Pick. 462; Robinson v. Howard, 7 Gush. 
 2,^i7; Turner v. Fendall, 1 Cranch, 116; Zurcher v. Magee, 2 Ala. 253; 
 Oliuke V. Shaw, 28 Fed. 356; Dawson v. Holcomb, 1 Ohio, 274, 13 
 Am. Dec. 618; Marvin v. Hawley, 9 Mo. 378, 48 Am. Dec. 547; Hill 
 V. La Crosse & M. Ry. Co., 14 Wis. 291, 80 Am. Dec. 783; Clymer v. 
 "Willis, 3 Cal. 364, 58 Am. Dec. 414; Beddick v. Smith, 4 111. 451; 
 
 (37) 
 
§ 27 LAW OF GARNISHMENT. [Ch. 2. 
 
 and assistants," justices of the peace," executors," 
 administrators," and guardianSj^' cannot be charged 
 as garnishees by reason of any property or money 
 
 Lightner v. Steinagel, 33 111. 510, 85 Am. Dec. 292; Pawley v. Gaines, 
 
 1 Overt. (Tenn.) 208; Blair v. Gantey, 2 Speer (S. C.) 34, 42 Am. Dec. 
 300; Burrell v. Letson, 2 Speer (S. O.) 378, 1 Stroh. 239; Alston v. Clay, 
 
 2 Hayw. (N. C.) 171; Jones v. .Tones, 1 Bland, Ch. (Md.) 443, 18 Am. 
 Dec. 327; Connolly v. Thurber Whyland Co., 92 Ga. 651, 18 S. W. 
 1004. 
 
 If a sheriff is not liable for money collected on an execution, surely 
 he could not be charged by reason of an execution in his hands upon 
 which he had received nothing. Sharp v. Clark, 2 Mass. 91. But see 
 Conover v. Ruckman, 33 N. J. Eq. 303. 
 
 62 Penniman v. Ruggles, 6 Mass. 166. Contra, Bank of Middle- 
 bury v. Edgerton, 30 Vt. 182. 
 
 8 Corbyn v. BoUman, 4 Watts & S. (Pa.) 342; Sievers v. Woodburn 
 Sarven Wheel Co., 43 Mich. 275, 5 N. W. 311; Hooks v. York, 4 Ind. 
 636. Contra: Clark v. Boggs, 6 Ala. 809, 41 Am. Dec. 85; Patter- 
 son V. Pratt, 19 Iowa, 358. 
 
 64 She well v. Keen, 2 Whart. (Pa.) 332, 30 Am. Dec. 266; Bai'nett 
 V. Weaver, 2 Whart. (Pa.) 418; Barnes v. Treat, 7 Mass. 271; Win- 
 chell V. Allen, 1 Conn. 385; Picquet v. Swan, 4 Mason, 443, Fed. Cas. 
 No. 11,133; Case Threshing-Machine Co. v. Miracle, 54 Wis. 295, 11 
 N. W. 580; Whitehead v. Coleman, 31 Grat. (Va.) 784; Norton v. 
 Clark, 18 Nev. 247, 2 Pac. 529; In re Hurd, 9 Wend. (N. Y.) 465; 
 Young V. Young, 2 Hill (S. C.) 425; Boyer v. Hawkins, 86 Iowa, 40, 
 52 N. W. 659; Post v. Love, 19 Fla. 634. 
 
 6 5 Brooks V. Cook, 8 Mass. 246; Waite v. Osborne, 11 Me. 185; 
 Thorn v. Woodruff, 5 Ark. 55; Fowler v. McLelland, 5 Ark. 188; Gill 
 V. Middleton (Ark.) 29 S. W. 465; Parker v. Donnally, 4 W. Va. 648; 
 Conway v. Remington, 11 R. I. 116; Lyons v. Houston, 2 Har. (Del.) 
 349; Short v. Moore, 10 Vt. 440; Stout v. La Follette, 64 Ind. 365; 
 Curling v. Hyde, 10 Mo. 374. 
 
 As to continuing proceedings against the executor or administrator 
 of the garnishee after his death, see post, § 381. 
 
 66 Gassett v. Grout, 4 Mete. (Mass.) 486; Hansen v. Butler, 48 Me. 
 81; Perry v. Thornton, 7 R. I. 15; Davis v. Drew, 6 N. H. 399, 25 
 Am. Dec. 467; Vierheller v. Brutto, 6 111. App. 95. 
 
 But one indebted to a spendthrift under guardianship Is chargeable 
 as garnishee of the spendthrift. Hicks v. Chapman, 10 Allen, 46.3. 
 (38) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 28 
 
 which they hold or any debts which they owe merely 
 as such officers. 
 
 Some Officers Held not within the Rule. 
 
 § 2§. In a few of the states, while these principles 
 are recognized as sound, they have been considered in- 
 applicable to certain of the cases above mentioned, ei- 
 ther generally or in view of the peculiar provisions of 
 the statute governing the conduct of the particular of- 
 ficer. Among these may be mentioned sheriffs and 
 constables," clerks in chancery courts,"' justices of 
 the peace,"" administrators,"" and executors.'^ 
 
 57 Hurlburt v. Hicks, 17 Vt. 193, 44 Am. Dec. 329; Bullard v. Hicks, 
 17 Vt. 198; Lovejoy v. I.ee, 35 Vt. 430; Woodbridge v. Morse, 5 N. 
 H. 519; Burleson v. Milan, 56 Miss. 399. 
 
 The statute requiring the sherifif to pay the money raised on execu- 
 tion directly to the creditor, held, that he may be charged therefoj- as 
 garnishee. New Haven Sawmill Co. v. Fowler, 28 Oonn. 103, over- 
 ruling Willes V. Pitkin, 1 Root (Conn.) 47, and Geary v. Shepard, Id. 
 544. 
 
 To attach property held by an officer by legal process, he should be 
 proceeded against as garnishee; a notice merely to him is not suf- 
 ficient. Locke V. Butler, 19 Ohio St. 587. 
 
 IN NEW JERSEY it is settled law that, when a sheriff or con- 
 stable has collected money on an execution issued out of one court, 
 
 8 Trotter v. Lehigh Zinc & Iron Co., 41 N. J. Eq. 229, 3 Atl. 95. 
 
 6 9 Clark V. Boggs, 6 Ala. 809, 41 Am. Dec. 85. 
 
 80 Hardesty v. Campbell, 29 Md. 533; Terry v. Lindsay, 3 Stew. & 
 P. (Ala.) 317; Tillinghast v. Johnson, 5 Ala. 514. 
 
 But when the principal defendant, as heir, had an undivided and 
 unascertained interest only, it was held that the administrator could 
 not be charged as garnishee. Mock v. King, 15 Ala. 66. Contra: 
 Stratton v. Ham, 8 Ind. 84, 65 Am. Dec. 754; Palmer v. Noyes, 45 N. 
 H. 174. 
 
 61 Stratton v. Ham, 8 Ind. 84, 65 Am. Dec. 754; Palmer v. Noyes, 
 45 N. H. 174. 
 
 (39) 
 
§ 29 LAW OF GARNISHMENT. [Uh. 2 
 
 Exemption not a Privilege of the Officef, but of the Court. 
 
 § 29. The exemption from garnishment in any 
 case, as beforejntimated, rests upon the rights of the 
 court whose officer has the property in charge, and 
 not UDon any immunity of the officer himself. There- 
 fore, it is no defense that the person summoned as gar- 
 nishee happens to be an officer of court, so long as the 
 property for which he is sought to be charged is not 
 - held by him in his official capacity.^^ For the same 
 reason, the court may, and, if justice requires, it pre- 
 
 he is liable as garnishee of the plaintiff in execution upon a garnish- 
 ment issued out of another court; and to make the proce'eding effec- 
 tual, and at the same time avoid clashing of courts, the sheriff should, 
 pursuant to the command of his writ, pay the money into the court 
 issuing the execution, and it will make such disposition of it as justice 
 requires. "He should bring the money into the court, and give notice 
 to the plaintiff in attachment or to the auditors that he has done so. 
 The court can then control the application of the funds, and protect 
 their officer in the discharge of his duty. If, after paying the money 
 Into court, a sheriff should be sued on scire facias as a garnishee, he 
 may protect himself by showing that he has obeyed the process under 
 ^^hich he raised the money." Crane v. Freese, 16 N. J. Law, 305; 
 Davis v. Blahany, 38 N. J. Law, 104; Oonover v. Ruckman, 33 N. J. 
 Eq. 303, 32 N. J. Kq. 685; Trotter v. Lehigh Zinc & Iron Co., 41 N. 
 J. Eq. 229, 3 Atl. 95. 
 
 PROPERTY TAKEN UNDER VOID PROCEEDINGS: Under a 
 statute providing that sheriffs and constables shall be exempt from 
 garnishment tor moneys and property received by them under any 
 execution or other process in favor of the principal defendant, it was 
 held that a constable might be charged for money collected on a pro- 
 c(^ss against such defendant. Storm v. Adams, 56 Wis. 137, 143, 
 14 N. W. 09. 
 
 «2 First Nat. Bank v. Portland & O. Ry. Co., 2 Fed. 831; Marine 
 Nat. Bank v. Whiteman Paper Mill, 49 Minn. 133, 51 N. W. 665; .lohn- 
 son V. Mason, 16 Mo. App. 271; Oppenheimer v. Marr, 31 Neb. 811, 
 48 N. W. 818. 
 (40) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 30 
 
 STimably will, grant leave to garnish property in the 
 possession of its officers."' 
 
 Chancery Garnishment. 
 
 § 30. It is also held that in many cases in which 
 garnishment could not be maintained by ordinary pro- 
 ceedings at law, because of the official liability of the 
 garnishee, the benefits of garnishment may be secured 
 by a bill in chancery, as that court, by its liberal pow- 
 ers, can fully protect the parties."* 
 
 «8 Cohnen v. Black (Mich.) 63 N. W. 641; Tremper v. Brooks, 40 
 Mich. 333. 
 
 In cases without the rule, no consent is necessary. Phelan v. Gane- 
 blm, 5 Colo. 14. 
 
 An assignee in bankruptcy being garnished in a state court with- 
 out permission to garnish him being first obtained from the court 
 appointing him, the state court rendered judgment against the gar- 
 nishee, and ordered that no execution issue on such judgment till 
 the United States court appointing the assignee should order him to 
 pay to the plaintiff. Upon a petition being presented to such United 
 States court to make such an order, that court denied the petition, 
 saying: "I do not know of any law or usage which would justify the 
 court in making such an order. If the question were between the 
 original parties, there would be less difficulty; but other rights have 
 intervened. The dividend has been assigned, and the assignee is 
 before the court, claiming under his assignment. Seeing that the 
 garnishment was without jurisdiction, and therefore absolutely null, 
 there was no lien, and nothing pending in the nature of a judicial 
 proceeding of which the assignee of the dividend was bound to 
 take notice. I cannot, therefore, see but that he had a perfect right 
 to purchase the dividend." In re Cunningham, 19 N. B. R. 276, 9 
 Cent. Law J. 208, and Fed. Cas. No. 3,478. But see post, § 402. 
 
 «4 Earle v. Grove. Circuit Judge, 92 Mich. 285, 52 N. W. 615; Weaver 
 V. Cressman, 21 Neb. 675, 33 N. W. 478; McGowan v. Myers, 66 Iowa, 
 99, 23 N. W. 282; Whitehead v. Coleman, 31 Grat. (Va.) 784. But 
 eee Lord v. Collins, 79 Me. 227, 9 Atl. 611. 
 
 (41) 
 
§ 31 LAW OF GARNISHMENT. [Ch. 2 
 
 Statutes Affecting Liability of Court Officers. 
 
 § 31. In some states certain classes of legal custo- 
 dians have been declared by special statute to be liable 
 to p:arnisliment in their official capacity.*" Under a 
 statute authorizing the garnishment of executors and 
 administrators, it has been held that they are chargea- 
 ble for claims bf the defendant against the estate, 
 though there has as yet been no settlement or order 
 of distribution; "" and, such attachment being made, 
 the court will, whenever it is necessary, continue the 
 case until the estate is so far settled as to render it 
 certain that the administrator or executor has assets 
 to pay the liability; "' or judgment may be given and 
 execution stayed to give the executor time to sell prop- 
 so Parks V. Cushman, 9 Vt. 320; Harrington v. Hill, 51 Vt. 44; 
 Holbrook v. Waters, 19 Tick. 354; Hoffman v. Wetherell, 42 Iowa, 
 89; Cummings v. Garvin, 65 Me. 301; Holman v. Fislier, 49 Miss. 
 472; Sapp V. McArdle, 41 Ga. 628; Beyer v. Hawkins, 86 Iowa, 40, 
 52 N. W. 659. 
 
 These statutes only aid cases clearly within their terms. Stills v. 
 Harmon, 7 Gush. 406; Beverstock v. Brown, 157 Mass. 565, 32 N. E. 
 901 ; Boyer v. Hawkins, supra. 
 
 oe Wheeler v. Bowen, 20 Pick. 563; Hoar y. Marshall, 2 Gray, 251; 
 Vantine v. Morse, 104 Mass* 275; Simonds v. Harris, 92 Ind. 505; 
 Siwinickson v. Painter, 32 Pa. St. 384; I.«renz v. King, 38 Pa. St. 98. 
 Before the passage of the act of 1843, it was held that the claims 
 against estates could not be reached by garnishment till ascertained 
 by settlement of accounts. McCreary v. Tapper, 10 Pa. St. 419; Bank 
 of Chester v. Ralston, 7 Pa. St. 482. These statutes cannot sustain 
 garnishments commenced before they were enacted. Hartle v. Long, 
 5 Pa. St. 491. An executrix not qualified cannot be charged as gar- 
 nishee for pipperty in the actual possession of a special administrator, 
 not under her control. In re Claims of Flandrow, 92 N. Y. 256. 
 
 As soon as the administrator has given bond and received his let- 
 ters of administration, he may be garnished. Mechanics' Sav. Bank 
 T. Waite, 150 Mass. 234, 22 N. E. 915. 
 e^ Wheeler v. Bowen, 20 Pick. 563; Hoar v. Marshall, 2 Gray, 251; 
 (42) 
 
Ch. 2] WHO MAY BE MADB A GARNISHEE. § 32 
 
 erty and pay the judgment, or ascertain whether he 
 has funds to do so ; or, in the latter case, the plaintiff 
 may have absolute judgment on giving bond to refund 
 in case the estate proves insufficient. °° 
 
 Limitation of the Rule that Ofllcers of Courts are 
 not Garnishable. 
 
 The Reason Limits the Rule. 
 
 § 32. The reason assigned by the authorities for 
 the rule prohibiting the seizure of property or credits 
 by attachment or garnishment w^hile such property is 
 in the custody of the law being that such proceedings 
 would greatly delay and embarrass judicial and other 
 official action in the administration of such property, 
 and would be an intolerable invasion of the jurisdic- 
 tion of the court having the matters in cnarge, the 
 great preponderance of modern authorities, proceed- 
 ing upon the principle that, when the reason for the 
 rule ceases, the rule should not apply, holds that when 
 the purposes of the court have been fully accomplished 
 in respect to the particular funds, by a final decree or 
 order for payment of the same to the defendant by 
 such officer, or his becoming directly and absolutely 
 accountable to the defendant therefor without such or- 
 der, such property or credit may be reached by gar- 
 nishing such officer."" 
 
 Vantine v. Morse, 104 Mass. 275; Mechanics' Sav. Bank v. Waite, 
 150 Mass. 234, 22 N. E. 915; Palmer y. Noyes, 45 N. H. 174. 
 «8 Cady V. Comey, 10 Mete. (Mass.) 459; Hoar v. Marsball, 2 Gray, 
 
 251. 
 
 69 Dunsmoor v. Furstenfeldt, 88 Cal. 522, 26 Pac. 518; Weavor v. 
 
 Davis, 47 III. 235. 
 
 (43) 
 
§ 34 LAW OF GARNISHMENT. [Cll. 2 
 
 Officers Garnishable after Court Orders Payment. 
 
 § 33. Under this limitation of the rule, it has been 
 held that money in the hand of a clerk of a court, mas- 
 ter in chancery, receiver, or the like, may be garnished 
 after an order of the court directing him to pay to the 
 defendant.'"' 
 
 And for Balances after Litigation is Concluded. 
 
 § 34. The same has been held concerning balances 
 remaining in the hands of such officers after the pur- 
 poses have been accomplished for which the matters 
 
 ■"> Gaither v. Ballew, 4 Jones (N. C.) 488, 69 Am. Dec. 764; Duns- 
 moor V. Furstenfeldt, 88 Cal. 522, 26 Pac. 518; Weaver v. Davis, 
 47 111. 235; Williams v. Jones, 38 Md. 555; Dunlap v. Patterson I'ire 
 Ins. Co., 74 N. Y. 145, 30 Am. Rep. 283; Id., 12 Hun, 627. Weaver 
 V. Cressman, 21 Neb. 675, 33 N. W. 478. Contra, Tremper v. Brooks, 
 40 Mich. 333. 
 
 PROPERTY IN COURT NEVER GARNISHABLE: "There is, in 
 my judgment, an insuperable difficulty in recognizing this view in the 
 present case, growing out of the peculiar jurisdiction in bankruptcy. 
 It cannot for a momejit be doubted that the court of bankruptcy has 
 exclusive jurisdiction of the bankrupt's estate, and of its administra- 
 tion, from the time of the adjudication to the final discharge of the 
 estate and the discharge of the assignee. This jurisdiction does 
 not by any means cease with the order of distribution. It is 
 clearly within the power of the court and its duty to see that 
 Its assignee pays over to the distributees the dividends awarded 
 to them. The assignee failing to perform this duty, the court 
 will punish him for contempt, order a suit upon his official bond, 
 and refuse to give him a final discharge. This jurisdiction is ex- 
 clusive. No other courts can touch or bind the assets of the bank- 
 rupt, or authorize any suit against the assignee, who is the officer of 
 the court. It follows that any action in any other tribunal, aiming to 
 control the action of the assignee, or directly or indirectly compel the 
 assignee to dispose of the assets or pay over the money in his hands 
 belonging to the estate, must be utterly without jurisdiction, and 
 therefore null and void." In re Cunningham, Fed. Cas. No. 3,478, 
 Cent. Law J. 208, and 19 N. B. R. 276. 
 (44) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 34 
 
 were placed in their control/^ It has also been held 
 that such officers are amenable to garnishment when- 
 ever the process does not tend to disturb the control 
 or general orders of the appointing court.'^ 
 
 ■^1 Van Riswick v. Lamon, 2 MacA. (D. G.) 172; Oppenheimer 
 T. Mair, 31 Neb. 811, 48 N. W. 818; Willard v. Decatur, 59 N. H. 
 137; Leroux v. Baldus (Tex. Sup.) 13 S. W. 1019; Wilbur v. Flan- 
 nery, GO Vt. 581, 15 Atl. 203. 
 
 GARNISHABLE BEFORE FINAL ACCOUNTING: Held, that a 
 register in chancery may be charged as garnishee in respect of a sur- 
 plus belonging to the defendant after payment of a mortgage decree, 
 although the sale made thereunder from which the money was re- 
 ceived had not been confirmed, and he was directed by the decree to 
 report his doings at the next term of court. Langdon v. Lockett, 6 
 Ala. 727, 41 Am. Dec. 78. "We do not, however, understand from 
 these cases that an attachment cannot be issued and laid in the hands 
 of a trustee before a final account, and that it would not be effective 
 upon a sum ascertained by such an account to be the distributive 
 share of the debtor in the attachment; but that the process, before 
 the account is stated, cannot affect the fund or the trustee, or compel 
 any modification of the final account for the benefit of the attaching 
 creditor." McPherson v. Snowden, 19 Md. 197. 
 
 WAIVER OF EXEMPTION: Held, that the exemption in any case 
 is a matter of defense; and, unless claimed by the garnishee before 
 final judgment, it is waived. Groome v. Lewis, 23 Md. 137, 87 Am. 
 Dec. 563. 
 
 BALANCES NOT GARNISHABLE: "A termination of the chan- 
 cery proceedings under which the money was paid in did not neces- 
 sarily withdraw it from the control of the court. It still remained 
 in its custody, and subject to its disposal, and Sessions continued to 
 hold it, in his official capacity and character, and in none other. * * * 
 Indeed, there are many, and to us conclusive, reasons why money thus 
 paid into court should remain there subject only to the order of that 
 court, where all the parties interested can be present by their re- 
 spective counsel, and be heard, as they would be upon motion to dis- 
 pose of it." Voorhees v. Sessions, 34 Mich. 100. To the same effect, 
 see Pace v. Smith, 57 Tex. 555; Curtis v. Ford, 78 Tex. 262, 14 S. W. 
 614; and Jones v. Field, 11 Ga. 413. 
 
 7 2 WHEN GARNISHMENT DOES NOT INTERFERE WITH 
 CONTROL: Phelan v. Ganebin, 5 Colo. 14; First Nat. Bank v. Port- 
 
 (45) 
 
§ 35 LAW OF GARNISHMENT. [Ch. 2 
 
 Limitation Applies to Admiaistrators, Executors, Sheriff's, etc. 
 
 § 35. The same principle which governs the above 
 classes of cases renders administrators," executors,'* 
 and the like, liable to garnishment for money which 
 has been administered by the court, and which it has 
 ordered such executor or guardian to pay to the de- 
 fendant, and renders sheriffs and other executive offi- 
 cers liable to garnishment for any surplus or residue 
 remaining in their hands after satisfying the writ upon 
 which it was collected. ''' 
 
 land & O. Ky. Co., 2 Fed. 881; Stiickey v. McKibbon, 92 Ala. 022, 8 
 South. 379. 
 
 "No one will question the correctness of the piopositlon that property 
 in tlie hands of receivers appointed by the courts is in custodia legis, 
 and not subject to levy or garnishment. This doctrine receives addi- 
 tional force in this case from the rule of judicial comity between 
 state and federal courts, by which each will ref -se to interfere with 
 property in the custody of the other, — a rule which we are always 
 solicitous to observe. But in this case it will be noticed that what is 
 sousht to be reached by garnishment is the property, not of the rail- 
 way company, but of the defendant, viz. a debt due him from the re- 
 ceivers. * * * In view of the fact that receivers of railway com- 
 panies, as ancillary to winding up the insolvent estate for the benefit 
 of creditors, are authorized to operate the road m lieu of the directors,— 
 sometimes for years, — any other rule would work great injury, and 
 would often leave the creditors of the employes of the receivers rem- 
 ediless." Irwin V. McKechnie, 58 Minn. 145, 59 N. W. 987. 
 
 T3 Adams v. Barrett, 2 N. H. 374; Richards v. Griggs, 16 Mo. 416. 
 51 Am. Dec. 240; Bartell v. Bauman, 12 111. App. 450; In re Merac's 
 Estate, 35 Cal. 392, 95 Am. Dec. 111. 
 
 7 4 Harrington v. La Rocque, 13 Or. 344, 10 Pac. 498; Fitchett v. Dol- 
 bee. 3 Har. (Del.) 267; Boyer v. Hawkins, 86 Iowa, 40, 52 N. W. 659. 
 
 7 5 Pierce v. Carleton, 12 111. 358, 54 Am. Dec. 405; Lightner v. 
 Steinagel, 33 111. 516, 85 Am. Dec. 292; Orr v. McBryde, 2 Car. Law 
 Repos. 257; King v. Moore, 6 Ala. 160, 41 Am. Dec. 44; Watson v. 
 Todd, 5 Mass. 271; Oppenheimer v. Marr. 31 Neb. 811, 48 N. W. 818; 
 Jaquett V. Palmer, 2 Har. (Del.) 144; Dickison v. Palmer, 2 Rich. 
 (46) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 37 
 
 Attorneys at Law. 
 
 § 36. There is nothing peculiar about the relation 
 of attorneys either to the courts or to their clients 
 which would exempt them fron- liability as garnishees 
 of their clients for any property or money in their pos- 
 session.^" But, of course, they cannot be compelled 
 by their answers as such, or by special interrogatories, 
 to disclose confidential communications." The deci- 
 sions in which the liability of attorneys to garnishment 
 has been adjudicated are not numerous, but the re- 
 ports of nearly all the states abound with cases in 
 which they have been so charged without questioning 
 their liability to the process. 
 
 Comuion Carriers. 
 
 § 37. There is no reason why common carriers may 
 not be charged as garnishees for property of the de- 
 
 Eq. (S. C.) 407; Tucker v. Atkinson, 1 Humph. (Tenn.) 300. 34 Am. 
 Dec. 650: Wheeler v. Smith, 11 Barb. (N. Y.) 345; Heam v. Crutcher, 
 4 Yer<j. (Tenn.) 401; I.ovejoy v. Lee. 3-") Vt, 430; Adams v. Lane, 38 
 Vt. (540. 
 
 So held of proijerty in hands of slieviff's receiptor. Cole v. Wooster, 
 2 Conn. 203. 
 
 So held of property taken by sheriffs under void attachment. Storm 
 V. Adams, 56 Wis. 137, 14 N. ^^' . G9. Compare Everett v. Herrin, 48 
 Me. .5.37; Anthanissen v. Dart, 92 (Ja. 409, 17 S. E. 951. 
 
 So held of money in the hands of a sheriff after he has gone out of 
 office. Robertson v. Beall, 10 Md. 12.i. 
 
 70 Staples V. Staples, 4 Me. 532; Ayer v. Brown, 77 Me. 195; Thayer 
 T. Sherman, 12 Mass. 441; Cook v. Holbiook, 6 Alleu, 572; Mann y. 
 ISuford, 3 Ala. 312, 37 Am. Dec. 091; Tucker v. Butts, 6 Oa. ."iSd: 
 Narramore v. Clark, 63 N. H. 106; Uiley v. Hirst, 2 Pa. St. 3K1; 
 White V. Bird, 20 La. Anu. 188, 96 Am. Dec. 393. Contra, .Johns r. 
 Allen, 5 Har. (Del.) 419. 
 
 " See post, § 291. 
 
 (47) 
 
§ 37 LAW OP GARNISHMENT. [Ch. 2 
 
 fendant in their possession within the jurisdiction of 
 the court, and not in transit at the time the garnish- 
 ment process is served, and it is generally conceded 
 that they may be." But, of course, the garnishee 
 cannot in such cases be compelled at its peril to decide 
 questions of fact of which it has no means of knowl- 
 edge; and it cannot be charged unless the property is 
 shown to belong to the defendant." Whether com- 
 
 7 8 Cooley V. Minnesota Transfer Co., 53 Minn. 327, 55 N. W. 1-tl; 
 Landa v. Missouri, K. & T. Ry. Co. (Mo. Sup.) 31 S. W. 900; Stiles 
 V. Davis, 1 Blacli, 101; Bates v. Cliicago, M. & St. P. Ry. Co., 60 Wis. 
 296, 19 N. W. 72; Illinois Cent. Ry. Co. v. Cobb, 48 111. 402; Locke, 
 Attaclim. 32. 
 
 EXEMPT AS PUBLIC AGENTS: In holding a railway company 
 not liable to garnishment for ears received of a connecting line under 
 the running arrangements existing between them to avoid unloading 
 and transfer of goods at point of connection, the Illinois court of ap- 
 peals said: "It has long been held that a common carrier exercises 
 a public employment, the duties and liabilities pertaining to which 
 are clearly defined and regulated by law. A common carrier is bound 
 to serve the public fairly and without unjust discrimination, and to 
 receive, transport, and deliver freight when offered with reasonable 
 dispatch. * • * in the absence of express contract, nothing can 
 excuse it for nondelivery at the point of destination of the goods re- 
 ceived except the act of God or the public enemy. We are unable to 
 perceive why, substantially, the same considerations of public policy 
 which exempt other public officers and agents in the discharge of 
 their official duties from the operation of the statutes in relation to 
 garnishment may not also be extended to the case of common car- 
 riers whenever the application of the statute will manifestly and 
 necessarily interfere with the proper discharge on the part of the 
 carrier of its public duties and functions." Michigan Cent. Ry. Co. 
 V. Chicago & M. L. S. Ry. Co., 1 111. App. 309. 
 
 7 Walker v. Detroit, G. H. & M. Ry. Co., 49 Mich. 446, 13 N. W. 
 812. 
 
 SHIPPING BILLS— OWNERSHIP— TRANSFERS: "While, in the 
 absence of any other directions, goods uve generally deliverable to the 
 consignee, yet it is a frequent occurrence that bills of lading and 
 consignment are transferred to third persons in the ordinary course 
 
 m 
 
Cll. 2] WHO MAY BE MADE A GARNISHEE. § 37 
 
 mon carriers may be compelled to respond as garnishees 
 for goods of the defendant in their possession, and in 
 actual transit, at the time the garnishment process 
 was served, has been very seriously doubted; and by 
 the weight of authority the proceedings cannot be sus- 
 tained in such cases.^" 
 
 of business, and the carrier must recognize such transfers. It is also 
 a matter of every-day practice to make consignments to factors and 
 agents. Unless protected by proper vouchers, a carrier cannot assume 
 to deal with consignments as, in all cases, actually and beneticially 
 belonging to the consignee." Walker v. Detroit, G. H. & M. Ry. Co., 
 supra. 
 
 When a carrier was summoned as garnishee in a suit against the 
 consignor of goods held fcy it for transportation, it was held the pre- 
 sumption is that they are the property of the consignee. Bingham 
 V. Lamping, 26 Pa. St. 340, 67 Am. Dec. 418. Compare Wells v. 
 American Exp. Co., 55 Wis. 23, 11 N. W. 537. 
 
 THE RIGHT OP STOPPAGE IN TRANSITU is not extinguished 
 or impaired by a service of process of garnishment in a suit against 
 the consignee upon the carrier of the goods. Chicago, B. & Q. Ry. 
 Co. V. Painter, 15 Neb. 394, 19 N. W. 488. 
 
 8 Illinois Cent. Ry. Co. v. Cobb, 48 111. 402; Montrose Pickle Co. 
 T. Dobson & H. M. Co., 76 Iowa, 172, 40 N. W. 705; Western Ry. 
 Co. T. Thornton, 60 Ga. 300; Pennsylvania Ry. Co. v. Pennock, 51 
 Pa. St. 244; Michigan Cent. Ry.. Co. v. Chicago & M. L. S. Ry. Co., 1 
 111. App. 399. 
 
 PROPERTY IN TRANSIT OUT OF STATE: "We therefore hold 
 (and it is all we decide in this case) that property in the hands of a. 
 common carrier in transit to a place outside of the state is not sub- 
 ject to garnishment, although it is yet within the state at the time 
 of the service of the garnishee summons." Stevehot v. Eastern 
 Ry. Co. (Minn.) 63 N. W. 256. 
 
 LEADING CASES EXEMPTING CARRIERS: "We think, when 
 the legislature gave the garnishee process in an ordinary action upon 
 contract before judgment, and where there is no allegation of any 
 fraudulent attempt on the part of the debtor to defraud his creditors, 
 it could not have contemplated that it would be used for the purpose 
 of interfering with the business of railroads and other common car- 
 riers in the prompt performance of their duties to the public; and 
 LAW GAKNISH. 4 (49) 
 
§ 38 LAW OP GARNISHMENT. [Ch. 2 
 
 Infants, Lunatics, and Married 'Women. 
 
 § 38. Upon principle, the question whether persons 
 iinder legal disability can be charged as garnishees 
 would seem to find an answer in the answer to the 
 
 when the plaintiff, upon allegations of fraud, pi'oceeds by writ of 
 attachment against the property of his debtor, he should take the 
 risk of the actual seizure of the defendant's property if found in the 
 hands of the carrier, and assume the risk as well as the expense of 
 establishing the ownership of the property by the defendant, and not 
 be allowed to cast that risk and expense upon tlie carrier by sum- 
 moning him as garnishee. * * * We approve what was said by 
 Chief .Tustice Breese in the case of Illinois Cent. R. Co. v. Cobb, 48 
 111. 402, about the injustice of holding the common carrier as gar- 
 nishee in respect to property in actual transit, viz: 'They are 
 obliged, under ordinary circumstances, to carry all that shall be deliv- 
 ered to them, and they discharge their duty by carrying and delivering 
 according to the contract. It is not their business, nor is it their 
 interest, to know to wliom the various articles belong, nor should it 
 be required of them that conflicting claims to the property intrusted 
 to them should be adjusted through controversies in which they have 
 no 'nterest, and the burden, annoyance, and expense of which they 
 must bear. When the goods are in the depot of a railwaj' company 
 in the county in which the attachment proceedings are instituted, 
 there could, perhaps, be no objection to such process; but on this 
 point we express no definite opinion. When the property has left the 
 county, and is in transit to a distant point, though on the same line of 
 railway, it would be unreasonable to subject the company to the 
 costs, vexation, and trouble of such process merely because it had 
 received to be carried that which the law compelled them to receive 
 and carry.' " Bates v. Chicago, M. & St. P. Ry. Co., 60 Wis. 296, 308, 
 19 N. W. 72. 
 
 CONTRA: "Tlie parties summoned as trustees were an express 
 company. In the superior court, 'upon motion to discharge them as 
 trustees, it appeared that they, as common carriers, had taken a pack- 
 age securely sealed up, containing money, and directed to a person 
 of the same name as the defendant, at Norwich, Connecticut.' * * * 
 Upon the trial of an issue upon additional allegations filed by the 
 jplaintiff, it was proved that the person to whom the package was 
 (50) 
 
■Ch. 2] WHO MAY BE MADE A GARNISHEE. § 38 
 
 question: Could the defendant maintain an action 
 against them for the matter for which they are sought 
 to be charged? Though the decisions upon the ques- 
 tion are few, that is probably the true test." 
 
 addressed was in fact the defendant. * * * They are therefore 
 chargeable as trustees, unless the fact that the money was in their 
 hands as common carriers, in transitw, exonerates them. There is 
 no reason why a common carrier should not he liable to the trustee 
 process in the same manner as other bailees are, unless the nature 
 ■of his contract is such tliat a judgment charging him as trustee would 
 not protect him against a claim of the defendant for a nondelivery of 
 the goods at their place of destination. But we are of opinion that 
 such judgment would be a sufficient excuse to the trustee for a fail- 
 ure to deliver according to his contract. The doctrine of the common 
 law that a carrier is responsible for all losses, except those occur- 
 ring by the act of God or a public enemy, has no application to a case 
 like the present. There has been no loss, but the defendant's property 
 has been sequestrated by the law, to be applied to his use and bene- 
 lit. Every man holds his property subject to be attached; and when- 
 over property is attached in a suit against the owner, and taken Into 
 the custody of the law, it excuses the person having possession of it 
 from performing his promise, express or implied, to deliver It to the 
 owner. The law substitutes the delivery to its officers for a perform- 
 ance of his contract." Adams v. Scott, 104 Mass. 164. 
 
 INTERSTATB] COM. MERGE: A¥here a consignment of merchan- 
 •dise has been removed from a consignor's place of business, and is 
 in a carrier's yards, awaiting shipment, it is not in transit, so as to 
 prevent garnishment of it; and statutes allowing such garnishment 
 are not attempts to regulate interstate commerce. Landa v. Missouri, 
 K. & T. Ry. Co. (Mo. Sup.) 31 S. W. 900. 
 
 PRIVATE CARRIERS: Of course, the principles invoked to ex- 
 empt common carriers from liability to garnishment have no applica- 
 tion to private carriers. Elser v. Rommel, !I8 Mich. 74, 56 N. W. 1107. 
 
 81 INFANTS: "It would seem, if there is an attempt to charge 
 him [the infant] upon the ground of having in his hands the credits 
 of the principal debtor, that the plea of infancy should avail the trus- 
 tee equally as if sued directly by the principal debtor; but, if the 
 minor is liable to the principal debtor for necessaries, no good reason 
 is perceived why he may not be charged as his trustee to the extent 
 of such liability, by means of the trustee process. So, if he has the 
 
 (51) 
 
§ 39 LAW OF GARNISHMENT. [Ch. 2 
 
 Plaintiffs. 
 
 § 39. Can the plaintiff in the main action be made 
 a garnishee? The leading case upon this question in 
 America (1816) is Graighle v. Notnagle/^ in which 
 Judge Washington, in a well-considered opinion, held, 
 in accordance with the decisions under the custom in 
 London, that he may be. The following is from the 
 opinion in this case: "The absurdity of process issuing 
 
 specific goods and chattels of the principal debtor in his hands, we 
 see no sufficient reason why they should not be reached by the trus- 
 tee process. * * * xhe general words of the statute include minors, 
 though it is true the court might, upon sufficient reasons, restrain 
 these general words by holding that minors did not come within the 
 equity of the statute. But we do not apprehend that there is any 
 good reason for restraining these general words. * * * Buta minor, 
 when sued, is not capable of conducting the suit; and it is necessary 
 that he should defend by guardian in a trustee process, so long as he 
 is a minor, as in other cases. To give the trustee process the effect 
 of an attachment of the goods against the minor from the date of the 
 service, his guardian, if he had one, should have been cited in. If this 
 is not done, the plaintilt must, at his peril, apply to the court to have 
 a guardian ad litem appointed." Wilder v. Eldredge, 17 Vt. 22G, ap- 
 proved in Sccfleld v. White (1857) 29 Vt. 330. 
 
 LUNATICS: The husband being appointed guardian ad litem of 
 the garnishee, her default was set aside. "The court was entirely 
 right in opening the default, and allowing the garnishee defendant 
 to answer. Such a course was the only proper one when it appeared, 
 as it did without dispute, that the garnishee was insane when the 
 summons was served on her." Bond v. Neuschwander, 86 Wis. 391, 
 57 N. W. 54. 
 
 MARRIED WOMEN: Where a married woman could not be sued 
 without her husband's consent, it was held that she could not be 
 charged as his garnishee. Delacroi.x v. Hart, 24 La. Ann. 141. In 
 Maryland, though it is there held that a married woman cannot main- 
 tain an action at law against her husband, yet he may be charged 
 as her garnishee. Odend'hal v. DevUn, 48 Md. 439. 
 
 82 1 Pet. C. C. 245, Fed. Cas. No. 5,679. 
 (52) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 39 
 
 against tlie plaintiff in the attachmeiit at his own suit, 
 his answering his own interrogatories, and being sub- 
 ject to execution for a debt due to himself, are strong- 
 Ij relied upon to prove that an attachment cannot be 
 laid in the hands of the plaintiff in that suit. * * * 
 The law is remedial, and the words of it general, ex- 
 tending the remedy to all creditors without distinc- 
 tion; and it would seem strange that the only person 
 who cannot obtain justice against a nonresident 
 should be one who has in his hand the fund out of 
 which that satisfaction may be had. There would 
 seem to be manifest injustice that the plank upon 
 which he might save himself, and upon which he may 
 probably have relied, should be taken from him, and 
 given to other creditors. * * * The effect of the 
 suit might be defeated, unless the plaintiff were armed 
 with coercive measures against the garnishee. He 
 certainly cannot be required to use those measures, 
 whether they are necessary or not. * * * ji^o rea- 
 son is perceived why the plaintiff may not proceed to 
 obtain judgment against the defendant, and after that 
 [cause] an execution to be levied on the property at- 
 tached. » * * If the plaintiff, instead of having 
 property in his own hands belonging to the defendant, 
 is indebted to him, no necessity is perceived for any 
 further proceedings, * * * unless, perhaps, it may 
 be proper to enter a judgment, that the plaintiff have 
 execution of the sum attached, and retain the same in 
 his hands. * * * That a creditor may lay a for- 
 eign attachment in his own hands, according to the 
 custom of London, is clearly established.^^ * * « 
 
 8 3 Citing East. Ent. p. 156; Paramour v. Pain, Cro. Eliz. 508; Coke 
 V. Brainforth, Cro. Eliz. 830; Morris v. Ludlam, 2 H. Bl. 362; 4 
 
 (53) 
 
§ 40 LAW OF GARNISHMENT. [Ch. 2 
 
 It is not perceived that any injustice is done to the de- 
 fendant in the attachment, or that the laws of the 
 state of Pennsylvania or any general principle of law 
 are violated by this mode of proceeding. * * * 
 Upon the whole, the court feels itself authorized to 
 sustain the foreign attachment, which is laid in the 
 hands of the plaintiff; and I am satisfied that in doing 
 so we not only fulfill the spirit and intention of the 
 law, but sanction a practice both just and convenient." 
 This holding has been followed by the decisions of 
 most of the states in which the question has since 
 arisen.^* However, some courts hold that the plain- 
 tiff cannot garnish himself, ^^ either in his individual 
 or representative capacity; *' and that one of several 
 plaintiffs cannot be charged as garnishee.*'^ 
 
 Defendants. 
 
 § 40. Ordinarily, all the advantages of a garnish- 
 ment against the defendant could be more effectually 
 
 RoUe, Abr. 554; 1 Com. Dig. 44'2; 7 Vin. Abr. 236; 2 Lutw. 1052-4. 
 See, also, Sarg. Attachm. 72. 
 
 8 4 Boyd V. Bayless, 4 Humph. (Tenn.) 386; Lyman v. Wood, 42 
 Vt. 113; Norton v. Norton, 43 Ohio St. 509, 3 N. E. 353; Coble v. 
 Nonenaker, 78 Pa. St. 501; Grayson v. Veeche, 12 Mart. (La.) 688. 
 13 Am. Dec. 384; Richardson v. Gurney, 9 La. 285. 
 
 See, also, the following cases, in which the question is discussed, 
 but not decided: Woodbridge v. Holmes, 78 Ala. 568; Beach v. Fair- 
 banks, 52 Conn. 172; Willing v. Consequa, Pet. C. C. 301, Fed. Cas. 
 No. 17,767; Albert v. Albert, 78 Md. 3.38, 28 Atl. 388; New England 
 Screw Co. v. Bliven, 3 Blackf. (Ind.) 240. 
 
 s5 Knight y. Clyde, 12 R. I. 119; dictum, Courtney v. Carr, 6 Iowa, 
 238, 245. 
 
 S6 Hoag V. Hoag, 55 N. H. 173. 
 
 6 7 Blaisdell v. Ladd, 14 N. H. 130; Belknap v. Gibbens, 13 Mete. 
 (Mass.) 471. 
 (54) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 41 
 
 enforced by execution, and a garnishment against him 
 would be a mere idle ceremony. Therefore, the ques- 
 tion whether it is permissible to make the principal 
 defendant a garnishee is not apt to arise frequently; 
 and for the same reason it has been held that, in an 
 action against several persons liable jointly, the plain- 
 tiff could not have one of their number made gar- 
 nishee; *^ and that, when money is due an executor 
 from the estate he represents, he cannot be charged as 
 garnishee as executor in a suit against him individu- 
 ally.^« 
 
 Husband or Wife of the Defendant. 
 
 § 41. By the weight of authority, the fact that the 
 person indebted to the defendant or possessing his or 
 her property is the husband '"' or wife "* of such de- 
 fendant is no reason why such person should not be 
 charged as garnishee in the suit. The statutes of most 
 of the states provide, in substance, that the husband 
 
 8 8 Bailey v. Lacey, 27 La. Ann. 39; Richardson v. Lacey, 27 La. 
 Ann. 67. 
 
 8 8 Shepherd v>. Bridenstine, 80 Iowa, 225, 45 N. W. 746. Contra,. 
 Dudley v. Falkner, 49 Ala. 148. 
 
 9« Held that, although a woman could not sue her husband, he may 
 be charged as garnishee in a suit against her. Odend'hal v. Devlin, 
 48 Md. 439. 
 
 "Whether the trustee process could have been maintained while the 
 relation of husband and wife existed need not be decided. See Robin- 
 son V. Trofitter, 109 Mass. 478. This is no reason why it should not be 
 maintained after this relation has been dissolved by a divorce." Por- 
 ter V. Wakefield, 146 Mass. 25, 14 N. B. 792. 
 
 91 Jones V. Roberts, 60 N. H. 216; Bnneking v. Scholtz, 69 Iowa, 
 473, 29 N. W. 422. 
 
 Where a married woman could not be sued unless authorized by her 
 husband or the judge of the court, it was held that she could not be 
 made his garnishee. Delacroix v. Hart, 24 La. Ann. 141. 
 
 (55) 
 
§ 42 LAW OF GARNISHMENT. [Ch. 2 
 
 cannot be a witness against ttie wife, nor ttie wife 
 against the husband, without the consent of the other; 
 and these statutes have presented the most serious 
 impediments to proceedings of this nature. In Iowa 
 it was held that this statute did not prevent examin- 
 ing such a garnishee concerning the property of the 
 defendant in her possession or her indebtedness to 
 him.'^ The contrary was held by the supreme court 
 of Michigan.*^ 
 
 Officers and Agents of Defendant Corporation. 
 
 Not Garnishable in Suits against Corporation. 
 
 § 42. There is a hopeless conflict of the decisions 
 on the question whether in actions against corpora- 
 tions the officers and agents of the defendant may be 
 summoned and charged as garnishees in respect to its 
 property, which they hold as officers and agents. On 
 the one hand, it is argued that garnishees must be 
 third persons, and that these officers and agents, when 
 acting as such, are not third persons, but the corpora- 
 tion itself; that they are the very hands of the com- 
 pany; that it can do no business except through them; 
 and that their possession is its possession. Moreover, 
 if the process were allowed in such cases, it would 
 often effectually prevent corporations from doing busi- 
 ness, and is therefore against public policy. Under 
 
 9 2 Thompson v. Silvers, 59 Iowa, 670, 13 N. W. 854. See, also, Pe- 
 tition of O'Brien, 24 Wis. 547; Lockwood v. Worstell, 15 Abb. Prac. 
 (N. Y.) 430, note. 
 
 93 Series v. Adsit Circuit Judge, 102 Micli. 495, CO N. W. 967, citing 
 De Parges v. Ryland, 87 Va. 404, 12 S. E. 805; Niland v. Halish, 
 37 Neb. 47, 55 N. W. 295. See, also, Wolford v. Farnliam, 44 Minn. 
 159, 46 N. W. 295. 
 (56) 
 
Ch. 2] WHO MAY BE MADE A GARNISHEE. § 43 
 
 this view, it has been held that a ticliet agent of a rail- 
 road company employed to sell tickets could not be 
 charged as garnishee in a suit against the company/* 
 and that the president of a railroad company could 
 not be charged as its garnishee."'' There are several 
 reported cases in which it has been attempted to charge 
 as garnishee the treasurer of the defendant corpora- 
 tion, and in which it has 1 een held that it could not be 
 done/'' 
 
 Contra. 
 
 § 43. On the other hand, it is said that it would be 
 easy for corporations to avoid payment of their debts 
 if placing their property in the hands of their officers 
 were placing it beyond the reach of their creditors; 
 that the officer is to be regarded as an individual hav- 
 ing property of the corporation in his possession, and 
 that the fact that he happens at the same time to be 
 an officer of the corporation is no excuse for not sur- 
 rendering the property, or answering for it when sum- 
 moned as garnishee; that it is not reasonable to re- 
 quire creditors to proceed by the tedious process of seq- 
 uestration; and, if any other creditor or stockholder 
 of the company object, he may file a complaint, and 
 proceed to a final settlement of the affairs of the com- 
 
 9* Fowler v. Railway Co., 35 Pa. St. 22; Pettingill v. Androscoggin 
 Ry. Co., 51 Me. 370. 
 
 5 Wilder v. Shea, 13 Busli (Ky.) 128. 
 
 06 Sprague v. Steam Nav. Co., 52 Me. 592; Lewis v. Smith, 2 
 Cranch, C. C. 571, Fed. Gas. No. 8,332; Bowker v. Hill, GO Me. 172; 
 McGraw v. Memphis & O. Ry. Co., 5 Cold. (Tenn.) 434; Mueth v. 
 Schardin, 4 Mo. App. 403. 
 
 Money which city officers had no authority to bank with the city 
 depositary may be garnished in the bank on a judgment against the 
 city. Murphree v. City of Mobile (Ala.) 18 South. 740. 
 
 (57) 
 
§ 43 LAW OF GARNISHMENT. [Ch. 2 
 
 pany. Moreover, that the argument that the posses- 
 sion of the agent is the possession of the principal 
 would apply with as much force in suits against nat- 
 ural persons as in suits against corporations, and, 
 when carried to its logical limits, would in many cases 
 effectually destroy the remedy designed by the legis- 
 lature, and is therefore unsound. Under this view, it 
 has been held that the president of a bank may be 
 charged as garnishee in a suit against the bank;'^ that 
 the president of a railroad,'* or the cashier and pay- 
 master of a railroad,"" or a local station ticket agent 
 of a railroad,^"" or a tollgate keeper of a turnpike com- 
 pany,^"^ may be charged as garnishee in a suit against 
 the company whose officer or agent he is. 
 
 07 Balston Spa Bank v. Marine Bank, 18 Wis. 490. 
 
 8 First Nat. Bank v. Davenport By. Co., 45 Iowa, 126. 
 
 !)» Everdell v. Stieboygan & F. du L. Ry. Co., 41 Wis. 39.5. 
 
 100 Littleton Nat. Bank v. Portland & O. Ry. Co., 58 N. H. 104. 
 
 101 Central Plauk-Road Co. v. gammons, 27 Ala. 380. 
 (58) 
 
Ch. 3] LIABILITY OF GARNISHEE HOW DETERMINED. § 44 
 
 CHAPTEE III. 
 
 LIABILITY OF GARNISHEE— HOW DETERMINED. 
 
 § 44. Fundamental Principles — Garnishee Cliargeable Only When In- 
 debted to 01- Holding Property of Defendant. 
 
 45. Neither Defendant nor Garnishee can Defeat Garnishment 
 
 Once Attached. 
 
 46. Plaintifl' Acquires Defendant's Rights. 
 
 47. Garnishee not Chargeable because of Liability to Plain- 
 tiff or to Defendant as Trustee. 
 
 48. Garnishee's Position, Rights, and Defenses not Improved 
 
 or Impaired. 
 
 49. Facts as They Existed AVhen Summons was Swerved De- 
 termine Liability. 
 
 50. Grounds of Liability. 
 
 51. Statutory Terms. 
 
 52. What Kind of Possession is Sufficient to Charge the Garnishee 
 
 — Control must be Actual and Exclusive of Defendant. 
 
 53. Actual Personal Possession not Necessary. 
 
 54. Right to Retain not Necessary. 
 
 55. Privity of Contract with Defendant not Necessary. 
 
 56. Possession as Trespasser or .Tailer. 
 
 57. What Constitutes a Debt— Promise to Pay Debt of Another— 
 
 Agency. 
 
 58. Privity of Contract. 
 
 59. Legacies, etc. 
 
 60. Garnishee's Contracts— Requiring Payment at Particular 
 
 Place. 
 
 61. Garnishee's Conti-act Rights not Impaired. 
 
 62. Insurance— Election to Rebuild. 
 
 63. Debts Payable on Completion of Contract. 
 
 64. When Liable for Part Performance. 
 
 65. Contracts Made after Garnishment. 
 
 66. Assignments of the Garnished Property or Debt— Garnishment. 
 
 Defeated by Prior Transfer. 
 
 67. Garnishee's Notice of Assignment. 
 
 68. Assignment without Notice to Assignee. 
 
 69. Splitting up Demands. 
 
 (59) 
 
§ 44 LAW OB' GARNISHMENT. [Ch. 3 
 
 § 70. Orders, Checks, and Drafts as Assignments of the Fund 
 Drawn on— An Equitable Assignment of Amount of Order. 
 
 71. Same— Commercial Bank Account. 
 
 72. rayee Has No Rights till Order is Accepted. 
 
 73. What is As-signable— Future Wages and Debts to Accrue— 
 
 Things Having No Existence. 
 
 74. Wages to be Earned under Existing Employment. 
 
 75. Invalid and Fraudulent Assignments — Bona Fides may be 
 
 Tried in Garnishment. 
 
 76. Plaintiff may Recover though Defendant could not. 
 
 77. No Matter Who Claims to Own It. 
 
 78. Pleadings — Proofs — Defenses. 
 
 79. Fraud a Question of Fact. 
 
 80. Badges of Fraud. 
 
 81. Facts Raising Conclusive Presumption of Fraud. 
 
 Fundamental Principles. 
 
 Garnishee Qhargeable Only When Indebted to or Holding Property of 
 Defendant. 
 
 § 44. In order to render the garnishee liable to the 
 plaintiff in garnishment, it must appear that he has 
 property belonging to the defendant in his possession 
 or under his control, or that he is Indebted to the de- 
 fendant.^ 
 
 1 See post, § 50: Viftor v. Hartford Fire Ins. Co., 33 Iowa, 210; 
 Stickney v. Crane, 35 Vt. 89; Galena & S. W. Ry. Co. v. Stahl, 103 
 111. 67*; Carson v. Allen, 2 Chand. (Wis.) 123; Smith v. Davis, 1 Wis. 
 447, 60 Am. Dec. ,390; Keyes v. Milwaukee & St. P. Ry. Co., 25 Wis. 
 691; Putney v. Farnham, 27 Wis. 187; Balhet v. Scott, 32 Wis. 174; 
 Henry v. Bew, 43 La. Ann. 476, 9 South. 101; Donald v. Xolson, 95 
 Ala. Ill, 10 South. 317; Cross v. Brown (R. I.) 33 Atl. 147, 156. 
 
 A mortgagee not being in possession cannot be charged as garnishee 
 of the mortgagor. He is not indebted to him, and not in possession 
 of his property, and therefore not liable. See post, §§ 52, 175. 
 
 At execution sale, K. agreed with defendant and certain creditors 
 to buy the property in, and sell it again at private sale, and with 
 the proceeds repay himself cost and expense, then pay F. and C. their 
 (60) 
 
Ch. 3] LIABILITY OF GARNISHEE — HOW DETERMINED. § 45 
 
 Neither Defendant nor Garnishee can Defeat a Garnishment Once 
 Attached. 
 
 § 45. If he is indebted to the defendant or in pos- 
 session of his property, he is chargeable to that ex- 
 tent; ^ and, his liability having once become fixed by 
 proper proceedings, he cannot defeat it by any subse- 
 quent act; ° nor can the defendant accomplish the 
 same result by going into bankruptcy," or by making 
 an assignment of all his property for the benefit of his 
 creditors,^ or in any other manner.' 
 
 claim, then turn over residue to defendant or other creditors. There 
 was no residue, and the garnishee was not chargeable. Shoemalier v. 
 Katz, 74 Wis. 374, 43 N. W. 151. 
 
 Held, that garnishee is not chargeable in such a case, though he 
 make $500 over his own debt. Dowdall v. Wisher, 167 Pa. St. 475, 
 31 Atl. ,749. 
 
 Defendant agreed to put new boiler in garnishee's mill, and take 
 old boiler in part pay, or, if garnishee sold old boiler before Job was 
 done, then garnishee to pay $225 in lieu of it. The title to the old 
 boiler not having passed, and nothing being due in cash till the job 
 was done, except what was already paid, the garnishee was not 
 chargeable. Edwards v. Roepke, 74 Wis. 571, 43 N. W. 554. 
 
 DEBT DUE THIRD PARTY LIABLE TO PLAINTIFF: Gar- 
 nishee cannot be charged for property belonging to a brother of the 
 principal defendant, liable jointly with him to the plaintiff, but not 
 a party to the main action. Allison v. Chicago, B. & Q. Ry. Co., 76 
 Iowa, 209, 40 N. W. 813. 
 
 2 Beck V. Cole, 16 Wis. 100; Schuerman v. Foster, 82 Wis. 319, 52 
 N. W. 311. See, also, post, §§ 52-59. 
 
 3 See post, §§ 192, 193. 
 
 •• Krupp V. Tabor, 31 Mich. 174. Compare Bates v. Tappan, 99 
 Mass. 376; Peck v. .Tenness, 7 How. 612. 
 
 " Stein V. La Dow, 13 Minn. 412 (Gil. 381) ; Fairbanks v. Whitney, 
 36 Minn. 305, 30 N. W. 812; Maxfield v. Edwards, 38 Minn. 539, 38 N. 
 W. 701; Coleman v. Darling, 66 Wis. 158, 28 N. W. 367; Thomas v. 
 Brown, 67 Md. 512, 10 Atl. 714. 
 
 In some of the states the statute provides that an assignment made 
 
 « See following page. 
 
 (61) 
 
§ 46 I,AW OK GARNISHMENT. [Ch. 3 
 
 Plaintiff Acquires Defendant's Rights. 
 
 § 46. Unless the garnishee holds by conveyance in 
 fraud of the defendant's creditors, the plaintiff's right 
 to have the garnishee charged for any property or debt 
 depends upon and is measured by the garnishee's lia- 
 bility to the principal defendant. The plaintiff steps 
 into the defendant's shoes, and acquires his rights, no 
 more and no less,' except that the garnishee may be 
 summoned in respect to claims upon which the defend- 
 within a certain time after the gamisliment sliall vacate it. See Fair- 
 banks v. Wtiitney and Tlionias v. Brown, above. 
 
 Such was tlie law in case of bankruptcy witliin four months after 
 garnishment, and before lien acquired "under final process." Howe 
 V. Union Ins. Co., 42 Cal. 528. 
 
 <5 Judd V. Littlejohn, 11 Wis. 176; Kelly v. Dill, 23 Minn. 435; Ellis 
 V. Goodnow, 40 Vt. 237; Leslie v. Merrill, 58 Ala. 322; Sturtevant v. 
 Robinson, 35 Mass. 175; Gerry v. Remick (Me.) 5 Atl. 268; Harris v. 
 Hutcheson, 65 Miss. 9, 3 South. 34; Minthorn v. Hemphill, 73 Iowa, 
 257, 34 N. W. 844; Garland v. Sperling (N. M.) 30 Tac. 925; Boll v. 
 ^^'ood, 87 Ky. 56, 7 S. W. 550; Gause v. Cone, 73 Tex. 239, 11 S. W. 
 162. 
 
 7 Fitzgerald v. HoUings worth, 14 Neb. 188, 15 N. W. 345; St. Louis 
 T. Regenfuss, 28 Wis. 144; Healey v. Butler, 66 Wis. 16, 27 N. W. 
 822; Goode v. Barr, 64 Wis. 659, 26 N. W. 114; Foster v. Singer, 69 
 Wis. 392, 34 N. W. 395; Dawson v. Iron Range & H. B. Ry. Co., 97 
 Mich. 33, 56 N. W. 106; Fogler v. Marston, 83 Me. 396, 22 Atl. 249; Ket- 
 tle' v. Harvey, 21 Vt. 301; Mai-x v. Parker, 9 Wash. 473, 37 Pac. 675; 
 Gage V. Chesebro, 49 Wis. 486, 492, 5 N. W. 881; Rock Island Lumber 
 & Manuf'g Co. v. Equitable Trust & Inv. Co., 54 Kan. 124, 37 Pac. 
 984; McKelvey y. Crockett, 18 Nev. 238, 2 Pac. 386; Smith v. Clarke, 
 9 Iowa, 241, 245; Victor v. Hartford Fire Ins. Co., 33 Iowa, 210; No- 
 ble V. Thompson Oil Co., 79 Pa. St. 354, 21 Am. Rep. 66; Williams v. 
 Housel, 2 Iowa, 156; U. S. v. Robertson, 5 Pet. 641, 659; North Chi- 
 cago RoUing-Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 596, 14 
 Sup. Ct. 710, 717; Todd v. HaU, 10 Conn. 544, 556; Smith v. Millett, 
 11 R. I. 528, 533; Case v. Noyes, 16 Or. 329, 19 Pac. 104. 
 
 "The circuit court found that the plaintiff was not entitled to re- 
 cover from the garnishee said $500. The third finding is: 'I do not 
 (62) 
 
Ch. 3] LIABIMTY OF GARNISHEE — HOW DETEKMINED. § 46 
 
 ant has already brought suit," or which are not paya- 
 ble till some future date; " and the want of previous 
 demand, without which the defendant could not main- 
 tain an action, will not prevent the garnishee being 
 charged." The plaintiff stands upon the defendant's 
 right, and is in no better condition than the latter 
 would be if he were prosecuting the suit." 
 
 decide the question of liability as to the said sum of $500 between the 
 said Eau Pleine Lumber Company [defendant] and the said H. D. 
 McCulloch LgarnisheeJ. * • *' The circuit eoui't refused to find the 
 only material fact in the case." Felch v. Eau Pleine Lumber Co., 58 
 Wis. 433, 17 N. W. 397. 
 
 ASSIGNMENTS VOIDABLE BY DEFENDANT: Thoush an as- 
 signment by an infant be voidable, one attempting to reach the prop- 
 erty assigned by suit against liim and garnishment cannot avoid it. 
 Kingman v. Perkins, 105 Mass. 111. 
 
 8 See post, § 144. 
 
 » See post, § 126. 
 
 10 Birmingliam Nat. Bank v. Mayer (Ala.) 16 South. 520; Corey v. 
 Powers, 18 Vt. 588; VS^ebster Wagon Co. v. Peterson, 27 W. Va. 314; 
 Thayer v. Sherman, 12 Mass. 441; Woodbridge v. Morse, 5 N. H. 519; 
 Quigg V. Kittredge, IS N. H. 137; Kiley v. Hirst, 2 Pa. St. 346; Mann 
 V. Buford, 3 Ala. 312, 37 Am. Dec. 691; Staples v. Staples, 4 Me. .532; 
 Atwood v. Dumas, 149 Mass. 167, 21 N. E. 230. 
 
 SAVINGS DEPOSITS: Though the defendant could not sue for 
 amount of his savings deposit in a bank until alter demand and a 
 week's notice and production of pass book or evidence of its loss, the 
 deposit may be garnished. Nichols v. Scotteld, 2 R. I. 123; Maloney 
 V. Casey (Mass.) 41 N. E. 104. Compare Clapp v. Hancock Bank, 1 
 Allen, 394; Kinsloe v. Davis, 167 Pa. St. 519, 31 Atl. 934. 
 
 11 Harris v. Phoenix Ins. Co., 35 Conn. 310, 313; Richardson v. Les- 
 ter, 83 111. 55; Dressor v. McCord, 90 III. 389; Waldron v. Wilcox, 13 
 R. I. 518; Brown v. Collins (R. I.) 27 Atl. 329; Bay City Brewing Co. 
 V. McDonell (Mich.) 64 N. W. 12; Oregon R. & N. Co. v. Gates, 10 Or. 
 514; Meier v. Hess, 23 Or. 599, 32 Pac. 755; Edson v. Sprout, 33 Vt. 
 77; Smith v. Stratton, 56 Vt. 362; Lomerson v. Huffman, 25 N. .1. 
 Law, 625; Myer v. Liverpool, L. & G. Ins. Co., 40 Md. 595; Lewis v. 
 Smith, 2 Cranch, C. C. 571, Fed. Cas. No. 8,332; Pundt v. Clary, 13 
 Neb. 406, 14 N. W. 107; Fitzgerald v. Hollingsworth, 14 Neb. 188, 15 
 
 (63) 
 
§ 47 LAW OF GARNISHMENT. [Ch. 3 
 
 Garnishee not Chargeable for Debts or Property Belonging to Plain- 
 tiff or to Defendant as Trustee. 
 
 § 47. The plaintiff cannot recover on the ground 
 that the garnished property or debt belongs to himself, 
 and not to the defendant; for, if that is so, it shows 
 that the garnishee had no debt or property in his hands 
 belonging to the defendant, if it shows anything, and 
 
 N. W. 345; Perea v. Colorado Nat. Bank (N. M.) 27 Pac. 322; Union 
 Pac. Ry. Co. v. Gibson, 15 Colo. 299, 25 Pac. 300; Marks v. Anderson, 
 1 Colo. App. 1, 27 Pac. 168; Hallowell v. I.eafgreen, 3 Colo. App. 22, 
 32 Pac. 79; Phenix Ins. Co. v. Willis, 70 Tex. 12, 6 S. W. 825; Na- 
 tional Parli Bank v. Levy, 17 R. I. 746, 24 \tl. 777; Starr v. Carring- 
 ton, 3 Conn. 278; Kansas Inv. Co. v. .Tones (Kan. App.) 42 Pac. 835; 
 Dix V. Cobb, 4 Mass. .508; Doyle v. Gray, 110 Mass. 206; Phipps v. 
 Rieley, 15 Or. 494, 16 Pac. 185; Shaver Wagon & Carriage Co. v. Hal- 
 sted, 78 Iowa, 730, 43 N. W. 623; Meek v. Briggs, 87 Iowa, 610, 54 N. 
 W. 456; Des Moines Cotton-Mill Co. v. Cooper (Iowa) 61 N. W. 1084; 
 Lackett v. Rumbaugh, 45 Fed. 23, 28; The Olivia A. Carrigan, 7 
 Fed. 507; Fenton v. Block, 10 Mo. App. 536; Tim v. Franklin, 87 
 Ga. 93, 13 S. E. 259. 
 
 RIGHTS AGAINST ASSIGNEE: "It is a fundamental principle that 
 an attaching creditor can stand on no better footing, as against bona 
 fide purcliasers or assignees of his debtor, than the latter does at the 
 time of the attachment or garnishment." Dorestan v. Krieg, 66 
 Wis. 604, 613, 29 N. W. 576; Copeland v. Manton, 22 Ohio St. .398, 
 404; Coleman v. Scott, 27 Neb. 77, 42 N. W. 896. 
 
 The garnishee is liable onlj' when the defendant might have main- 
 tained an action against him. Jones v. Langhorne, 19 Colo. 206, 34 
 Pac. 997. See, also, post, § 154. 
 
 JUDGMENT OR ACCOUNTING BETWEEN DEPENDANT AND 
 GARNISHEE: The defendant having made a settlement of accounts 
 with the garnishee, the plaintiff is bound thereby, in the absence of 
 fraud. Klauber v. Wright, 52 Wis. 312, 8 N. W. 893; Huntington v. 
 Risdon, 43 Iowa, 517. 
 
 A judgment in favor of the garnishee in a suit against him by the 
 defendant is conclusive in his favor against the plaintiff (Bateman v. 
 Grand Rapids & I. Ry. Co., 96 Mich. 441, 56 N. W. 28), unless shown 
 to be fraudulently or colluslvely obtained. Palmerv. Gilmore,148 Pa. 
 St. 48, 23 Atl. 1041. Compare Church v. Simpson, 25 Iowa, 408. 
 (64) 
 
Ch. 3] LIABILITY OF GARNISHEE — HOW DETERMINED. § 47 
 
 for these only can he be charged." Recovery can be 
 had only for debts or property which belong to the de- 
 fendant in the character in which he is sued, and not 
 for those which he owns in some other or representa- 
 tive capacity.^^ 
 
 12 Shattuck V. Smith, 16 Vt. 132; Johnson v. Brant, 38 Kan. 754, 17 
 Pac. 794; Lawrence v. McKenzie, 88 Iowa, 432, 55 N. W. 505. 
 
 The plaintiff cannot treat the property as sold in his transactions 
 with the defendant, and treat it as not sold in his dealings with the 
 garnishee and claimant. Klocow v. Patten (Iowa) 61 N. W. 926. 
 
 A mortgagee who has sold the mortgaged property, and paid his 
 claim with the proceeds, cannot be charged as garnishee of the mort- 
 gagor, on the ground that the plaintiff's demand is for a credit extend- 
 ed to the defendant in reliance upon a representation by the mortgagee 
 that his mortgage had been paid. Sears v. Thompson, 72 Iowa, 61, 33 
 N. W. 364. 
 
 13 Marx V. Parker, 9 Wash. 473, 37 Pac. 675; Clark v. Shrader, 41 
 Iowa, 491; Des Moines Cotton-Mill Co. v. Cooper (Iowa) 61 N. W. 
 1084; Lessing v. Vertrees, 32 Mo. 431; Blake Crusher Co. v. Town of 
 New Haven, 46 Conn. 473; Boyden v. Ward, 38 Vt. 628; Cram v. 
 Shackleton, 64 N. H. 44, 5 Atl. 715; Hitchcock v. Galveston Wharf 
 Co., 50 Fed. 263; McArthur v. Carman, 71 Iowa, 34, 32 N. W. 14; 
 Davis V. Willey, 57 Vt. 125. See, also, post, § 57. 
 
 In a suit against an administrator as such, a debt due the decedent 
 ma.v be garaished. Harmon v. Osgood, 151 Mass. 501, 24 N. E. 401. 
 Contra, Boyden v. Ward, 38 Vt. 628. 
 
 It was held in an early case that money due on a note to an ex- 
 ecutor could be garnished in a suit against him personally, because he 
 could sue for such money only in his individual capacity. Coburn v. 
 Ansart, 3 Mass. 319. But see Rlarvel v. Babbitt, 143 Mass. 226, 9 N. 
 E. 566. 
 
 PUBLIC FUNDS deposited in the face of a law prohibiting it are 
 thereby converted by the depositor, and the bank may 'be charged as 
 his garnishee therefor. First Nat. Bank v. Gaudy, 11 Neb. 431, N. 
 W. 566; Long v. Emsley, 57 Iowa, 11, 10 N. W. 280. Contra, Marx 
 V. Parker, 9 Wash. 473, 37 Pac. 675. 
 
 M. lent defendant money to buy goods, on agreement that he should 
 be paid out of the proceeds. Defendant sold the goods to the gar- 
 LAW GARNISH. — 5 (65) 
 
§ 48 LAW OP GARXlSillMKNT. [Ch. 3 
 
 Garnishee's Position, Rights, and Defenses not Imprnved or Impaired. 
 
 § 48. The garnishee is not entitled to occupy in any 
 respect a better position than if sued by the defend- 
 ant." On the ether hand, it is a universal rule that 
 under no circumstances is the garnishee to be placed 
 in a worse condition by operation of the proceedings 
 against him than he would be in jf the defendant's 
 claim against him were enforced by the defendant him- 
 self." Any defense which would be good against the 
 
 nishee on credit, as agent of M., and the garnishee was not liable. 
 Mershon v. Moors, 76 Wis. 502, 4.5 N. W. 95. 
 
 INSURANCE MONEY: Loss having occurred on a policy of insur- 
 ance issued to the mortgagor, and payable to the mortgagee, "as his 
 interest may appear," to which agreement the mortgagee is a party, 
 he is entitled to the insurance money against one garnishing the 
 same In a suit against the mortgagor. Mansfield v. Stevens, 31 Minn. 
 40, 16 N. W. 455; Coykendall v. Ladd, 32 Minn. 529, 21 N. W. 733; 
 Manson v. Phoenix Ins. Co., 64 Wis. 26, 24 N. W. 407; Edwards v. 
 Agricultural Ins. Co., 88 Wis. 450, 60 N. W. 782. 
 
 1* Allen v. Hall, 46 Mass. 263; Lawrence v. Security Co., 56 Conn. 
 4123, 15 Atl. 406; Hearn v. Crutcher, 4 Yerg. (Tenn.) 461, 475; Fifield 
 V. Wood, 9 Iowa, 249; Toll v. Knight, 15 Iowa, 370; Caldwell v. 
 Stewart, 30 Iowa, 379; .Tones v. Tracy, 75 Pa. St. 417; Mooney v. 
 Union Pac. Ry. Co., 60 Iowa, 346, 14 N. W. 343. But see Armstrong 
 V. Cowles, 44 Conn. 44. 
 
 P., when summoned as garnishee of M. & Co., answered that, being ' 
 indebted to M. & Co., he agreed verbally with M. to sell him a town 
 lot for such debt and as much more cash. The agreement being void 
 under the statute of frauds, the garnishee was properly charged. 
 Morgan v. McLaren, 4 G. Greene (Iowa) 536. 
 
 A judgment, against a garnishee in favor of the defendant being 
 conclusive between them, the garnishee cannot question the correct- 
 uess of it in this proceeding. Fuller v. Foote, 56 Conn. 341, 15 Atl. 
 760. 
 
 The garnishee cannot defend on the ground that the money in his 
 hands is for liquors sold by him as agent for the defendant, but in vio- 
 lation of law. Thayer v. Partridge, 47 Vt. 423. 
 
 1" Gage V. Chesebro, 49 Wis. 4S6, 492, 5 N. W. 881; Rice v. Third 
 (66) 
 
€h. 3] LIABILITY OF GARNISHEE — HOW DETERMINED. § 49 
 
 latter is available against the plaintiff/" He can 
 never be charged in such a manner as to subject him 
 to a double liability, unless from Ms own fault; nor if 
 the judgment against him, as such, would not dis- 
 charge his obligation pro tanto." 
 
 Tlie Fhcts as They Existed When the Summons was Served Deter- 
 mine the Liability. 
 
 § 49. The garnishee is liable to the plaintiff for the 
 amount of the property in his possession or under his 
 
 Nat. Bank, 97 Mich. 414, 56 N. W. 770; Smith y. Clarke. 9 Iowa, 241, 
 :24,t; Fifield v. Wood, Id. 249; Cox v. Russell, 44 Iowa, 556, 562; 
 Sauer v. Town of Nevada villa, 14 Colo. 54, 23 Pac. 87; Jones v. Iian<j- 
 lioine, 19 Colo. 206, 34 Pac. 997; Rock Island Lumber & Manuf'g 
 •Co. V. Equitable Trust & Inv. Co., 54 Kan. 124, 37 Pac. 983; Rice v. 
 Whitney, 12 Ohio St. 358; Ellison v. Tuttle, 26 Tex. 283; Curtis v. 
 Alvord, 45 Conn. 569; Pundt v. Clary, 13 Neb. 406, 14 N. W. 167; 
 .Johnson v. Geneva Pub. Co., 122 Mo. 102, 26 S. W. 676; Nutter v. 
 Framingham & L. Ry. Co., 132 Mass. 427; Boston Type & Stereotype 
 Foundry Co. v. Mortimer, 7 Pick. 166, 19 Am. Dec. 266; Wile v. 
 ■Cohn, 63 Fed. 759; Henry v. Wilson, 85 Iowa, 60, 51 N. W. 1157; 
 Howe V. Hyer (Fla.) 17 South. 925. 
 
 "The service of the garnishment neither changed not interrupted 
 the contractual relation existing between the Chicago Company and 
 the St. Louis Company. The rights and equities existing, and to 
 arise out of tho.se contractual relations, were in no way terminated 
 •or defeated by that service. The legal operation and effect of the gar- 
 nishment proceedings, and of the final order therein made, were only 
 to impound what was legally and equitably due from the garnishee 
 after the adjustment of the claims between the latter and the prin- 
 cipal_ debtor, and place it beyond the control of the debtor, and sub- 
 ject to collection for the benefit of the attaching creditor." North 
 Chicago Rolling-Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 596, 
 14 Sup. 710, 716. 
 
 loSchuler v. Isreal, 120 U. S. 506. 7 Sup. Ct. 648; Grossman v. 
 Crossman, 21 Pick. 21; Daniels v. Clark, 38 Iowa, 556; Fairfield v. 
 :McNany, 37 Iowa, 75; Lackett v. Rumbaugh, 45 Fed. 23. 
 
 17 Hamilton v. Rogers, 07 Mich. 135, 34 N. W. 278; Hewitt v; 
 
 (67) 
 
§ 49 LAW OF GARNISHMENT. [Ch. 3 
 
 control belonging to the defendant, and for any in- 
 debtedness from him to the defendant at the time the 
 summons is served/* His liability cannot be made to 
 extend to property that may come into his hands or 
 indebtedness that may be created subsequent to that 
 time/" The liability or nonliability of the garnishee 
 
 Wagar Lumber Co., 38 Mich. 701; Secor v. Witter, 39 Ohio St. 218, 
 231; Walters v. Washington Ins. Co., 1 Iowa, 405, 411; Burton v. Dis- 
 trict Tp. of Warren, 11 Iowa, 166; Daniels v. Clark, 38 Iowa, 556, 559; 
 Pierce v. Carleton, 12 111. 358 54 Am. Dec. 405; May v. Balier, 15 111. 
 89; Galena & C. U. Ry. Co. t. Menzies, 26 111. 122, 148. 
 
 18 Nash V. Gale, 2 Minn. 310 (Gil. 265); Ide v. Harwood, 30 Minn. 
 191, 14 N. W. 884; Becli v. Cole, 16 Wis. 100; Secor v. Witter, 39 Ohio 
 St. 218. 
 
 In Michigan it is held that, though there be an existing liability to 
 defendant at the time the garnishment summons is served, yet the 
 garnishee cannot be charged if, at the time the summons was issued, 
 the liability had not yet been created. Hitchcock v. Miller, 48 Mich. 
 603, 12 N. W. 871; CogsweU v. Mitts, 90 Mich. 353, 51 N. W. 514. 
 
 The garnishee's liability dates from the service of the writ, not from 
 the aotice to answer. Johnson v. Carry, 2 Cal. 33. 
 
 When the owner of two judgments against the same person insti- 
 tutes garnishment on one, and, tliat being afterwards paid, has the 
 same garnishee summoned in proceedings upon the other, the gar- 
 nishee is liable on the second garnishment only for his obligations to 
 the defendant when it was served. Hoobaugh's Appeal, 122 Pa. St. 
 88, 15 Atl. 669. 
 
 19 Hitchcock V. Miller, 48 Jlich. 603, 12 N. W. 871; Hopson v. Di- 
 nan, 48 Mich. 612, 12 N. W. 875; Bethel v. Judge of Superior Court, 57 
 Mich. 379, 381, 24 N. W. 112; Cogswell v. Mitts, 90 Mich. 353, 51 N. 
 W. 514; Wood v. Wall, 24 Wis. 647; Easterly v. Keney, 36 Conn. 18; 
 Morris v. Union I'ac. Ey. Co., 56 Iowa, 135, 8 N. W. 804; Thomas v. 
 Gibbons, 61 Iowa, 50, 15 N. W. 593; Muzzy v. Lantry, 30 Kan. 49, 2 
 Pac. 102; Burlington & M. R. Ry. Co. v. Thompson, 31 Kan. 180, 1 
 Pac. 622, 625; Devries v. Summit, 86 N. C. 126; Gillette v. Cooper, 
 48 Kan. 632, 30 Pac. 13; Norris v. Burgoyne, 4 Cal. 409; Bliss v. 
 Smith, 78 111. 359; Flemming v. Baxter (Colo. App.) 38 Pac. 57. 
 
 CONTRA, largely by force of statute: Palmer v. Noyes, 45 N. H. 
 174; Smith v.Boston,C.& M.Ry.Co.,33 N.H.337; Young v.FirstNat. 
 (68) 
 
Ch. 3] IJABtl.ITY OF GARNISHEE HOW DETERMINED. § 49 
 
 is determined solely with reference to the facts as they 
 existed at the time the p;arnishment was served; no 
 subsequent event can increase, diminish, or affect it,^" 
 
 Bank, 51 111. 73; Gause v. Cone, 73 Tex. 239, 11 S. W. 162; Glenn v. 
 Boston & S. Glass Co., 7 Md. 287; Patterson v. Berry, 10 Abb. Prac. 
 <N. Y.) 82, 5 Bosw. 518; Archer v. People's Sav. Bank, 88 Ala. 249, 
 7 South. 58; Craft v. Louisville & N. Ry. Co., 93 Ala. 22, 9 South. 
 328; Lady Ensley Furnace Co. v. Rogan, 95 Ala. 594, 11 South. 188; 
 Ringold V. Suiter, 35 W. Va. 186, 13 S. E. 46; Columbus Ins. & Bank- 
 ing Co. V. Hirsh, 61 Miss. 74; Seymour v. Cooper, 25 Vt. 141. 
 
 20 Martz v. Detroit Fire & Marine Ins. Co., 28 Mich. 201; Thorpe v. 
 Preston, 42 Mich. 511, 4 N. W. 227; Bethel v. .ludge of Superior 
 Court, 57 Mich. 329, 24 N. W. 112; Gies v. Bechtner, 12 Minn. 279 
 (Gil. 183); Case Threshing Mach. Co. v. Miracle, 54 Wis. 298, 11 N. 
 W. 580; Edwards v. Roepke, 74 Wis. 575, 43 N. W. 554; Foster v. 
 Singer, 69 Wis. 392, 34 N. W. 395; McCown v. Russell, 84 Wis. 122, 
 127, 54 N. W. 31; Vollmer v. Chicago & N. W. Ry. Co., 86 Wis. 305, 
 56 N. W. 919; Williams v. Androscoggin & K. R. Co., 36 Me. 201, 8 
 Am. Dec. 742; Mace v. Herrald, 36 Me. 136; Sanford v. Bliss, 12 
 Pick. 116; Meacham v. MeCorbitt, 2 Mete. (Mass.) 352; Hancock v. 
 Colyer, 99 Mass. 187, 96 Am. Dec. 730; O'Brien v. Collins, 124 Mass. 
 98; Capen v. Duggan, 136 Mass. 501; Fitch v. Waite, 5 Conn. 117, 
 122; Grosvenor v. Farmers' & Mechanics' Bank, 13 Conn. 104; Gar- 
 land V. Sperling (N. M.) 30 Pac. 925; Harris v. Huteheson, 65 Miss. 9, 
 3 South. 34; Lackett v. Rumbaugh, 45 Fed. 23; Drake, Attachm. § 
 667, and cases there cited. 
 
 A Wisconsin statute made the liability in justice court depend upon 
 the facts at the time Judgment is rendered against the principal de- 
 fendant. Jones V. St. Onge, 67 Wis. 524, 30 N. W. 927. 
 
 Held, that a liability contingent when the writ is served, but cer- 
 tain before the garnishee answers, may be reached. Franklin PMre 
 Ins. Co. V. West, 8 Watts & S. (Pa.) 350. 
 
 LIMITATIONS OF THE RULE: "Shaw, C. J.: * * * It has been 
 argued that the tmstee's liability must depend upon the state of facts 
 as it existed when the trustee process was served. Thisis not strictly 
 correct. Some liability must exist at that time in order to charge him, 
 but that liability may be greatly modified, and even discharged, by 
 subsequent events. Suppose one indebted to the principal is sum- 
 moned as trustee, but he has various liens nponthefunds; as, for in- 
 stance, to indemnify himself against suretyships and liabilities for 
 
 (69) 
 
§ 49 LAW OF GAENISHMENT. [Ch. 3- 
 
 except that in case the Droperty or debt <;arn:she(i i» 
 delivered by an agent of the garnishee after service of 
 the garnishment, but before knowledge of it has been 
 or could be, by reasonable diligence, communicated to 
 him, such delivery or payment discharges the gar- 
 nishee.^^ For the same reason, a srarnishee cannot be 
 charged for property in his possession or debts ovi^ed 
 by him when served which he had no reason to sup- 
 pose belonged to the defendant, and which he after- 
 
 the principal. These liabilities may all be discbargecl, and thus leave 
 the fund subject to the attachment; or they may be enforced in whole 
 or in part, and then the trustee will have a clear right to deduct from 
 the fund the amount paid by him, in pursuance of liabilities which 
 existed at the time of the service, and thus the fund may be dimin- 
 ished, or even wholly absorbed. A factor may have a large amount of 
 goods of his principal, on which, however, he has a lien for his general 
 balance. He may have received of his principal bills of exchange, 
 which have gone forward, but of which the acceptance is uncertain. 
 In this state he is summoned. He will not be chargeable for funds 
 acquired after the service; but he may receive funds aftei the serv- 
 ice, which will discharge and reverse the balance, and leave the fund 
 liable to the trustee process; whereas, but for such acquisition of 
 funds afterwards, the fund attached would be first liable to the 
 factor's balance, which might thus absorb it. There are various 
 modes, therefore, in which the qiiestion whether trustee or not, and 
 for what amount, may be affected and decided by events occurring- 
 after the sei-vice of the process." Smith v. Stearns, 19 Pick. (JIass.) 
 20, 23. See, also, post, § 188; Edgerton v. Martin, 35 Vt. 116. 
 
 21 Bates V. Chicago & N. W. Ry. Co., 60 Wis. 296, 19 N. W. 72; 
 Hamilton v. Rogers, 07 Mich. 137, 34 N. W. 278; Spooner v. Ronland, 
 4 Allen, 485; Robinson v. Hall, 3 Mete. (Mass.) 301; Williams v. Ken- 
 ney, 98 Mass. 142; .Jordan v. Jordan, 75 Me. 100; Landry v. Chay- 
 ret, 58 N. H. 89; Farrell v. Pearson, 26 111. 463. 
 
 If the fact of the garnishment was known, not so. Conley v. Chil- 
 cote, 25 Ohio St. 320. 
 
 The garnishee's agents are bound to take notice of the garnishment, 
 and act accordingly. Buchanan Co. Bank v. Cedar Rapids, I. F. & 
 N. W. Ry. Co., 62 Iowa, 494, 17 N. W. 737; Tindall v. Wall, Busb. 
 (N. C.) 3. 
 (70) 
 
Ch. o] LIABILITY OF GARNISHEE HOW DETERMINED. § 50 
 
 wards paid or delivered to another before receiving no- 
 tice that the plaintiff seeks to reach it by his garnish- 
 ment." 
 
 Grounds of Liability. 
 
 § 50. The statutes authorizing garnishment pro- 
 ceedings all divide the grounds for charging the gar- 
 nishee into two grand divisions, viz.: (1) As custo- 
 dian of the defendant's property; and (2) as indebted 
 to him.^' All subsequent proceedings and inquiries 
 must be confined to the ground set out when the pro- 
 ceedings are instituted.^* Therefore, in all cases 
 where there is any doubt as to which ground the pro- 
 ceedings should be planted on, it is always safer to 
 allege both. In Botsford v. Simmons, above. Chief 
 Justice Graves, in giving the opinion of the court, 
 says: "This act allows a garnishee prosecution where 
 the partv to be garnished is claimed to hold one or 
 both of two separate positions. » * » These 
 
 2 2 Kauffman v. Jacobs, 49 Iowa, 432; Himpsted v. German Bank, 
 46 Ark. 537; German Bank v. Himpsted, 42 Ark. 62. See, also, post, 
 § 266. 
 
 When it is sougJit by tlie garnishment to reach property which the 
 garnishee has no reason to suppose belongs to the defendant, a spe- 
 cial notice of the fact should accompany the summons. First Nat. 
 Bank v. Leppel, 9 Colo. 594, 13 Pac. 776. See, also, post, § 257. 
 
 2 3 Allen V. Hall, 5 Mete. (Mass.) 263. 
 
 Under some of the statutes, the garnishee can be charged only as 
 debtor. Wood v. Edgar, 13 Mo. 451; Perea v. Colorado Nat. Bank 
 (N. M.) 27 Pac. 322; Garland v. Sperling (n! M.) 30 Pac. 925. 
 
 2 4 Botsford V. Simmons, 32 Mich. 357; Pratt v. Scott, 19 Mo. 625; 
 Mitchell V. Shelton, 35 Conn. 1; Connor v. Third Nat. Bank, 90 Mich. 
 328, 51 N. W. 523; Lewis v. Smith, 2 Cranch, C. C. 571, Fed. Cas. No. 
 8,332; Nash v. Gale, 2 Minn. 311 (Gil. 265). See, also, post, §§ 249, 
 256, 291. Contra, Prince v. Heenan, 5 Minn. 347 (Gil. 279). 
 
 171) 
 
§ 50 LAW OP GARNISHMENT. [Ch. 3 
 
 grounds are distinct, and the party is never subject to be 
 charged, and held upon one, when the process is confined 
 to the other, unless it chance to happen, which must be 
 very seldom, that the true condition of the matters in 
 question is at the same time within the legal meaning of 
 the second ground, and ot some term of the first. An 
 examination of the act will show that the legislature 
 considered the distinction between the two grounds as 
 one to be carefully observed in the management of the 
 remedy. The distinction is plainly drawn in the first 
 section, and the two grounds, although allowed to be 
 joined, are nowhere confounded. The interlocutory 
 proceedings, as well as the kind of judgment, are dif- 
 ferent in one case from what they are in the other. 
 * * * The basis of the particular case is therefore 
 not to be departed from in the intermediate steps, or 
 in the final determination." Cases may arise in which 
 it may be difficult to determine upon which ground to 
 base the proceedings, though it may be certain that 
 the garnishee is liable one way or the other."" It 
 would seem to follow from what has been said that if 
 the plaintiff, in his affidavit, alleges that the garnishee 
 is indebted to the defendant, and the summons com- 
 mand him to appear and answer touching the proper- 
 ty, money, and effects of the defendant in his custody, 
 and nothing else, the suit must be a total miscarriage, 
 for the garnishee cannot be questioned in regard to 
 any ground of liability not stated in the affidavit, and 
 he has not been summoned to answer to any ground 
 therein stated. 
 
 2 5 See post, § 125. 
 (72) 
 
(Jh. 3] LIABILITY OF GARNISHEE HOW DETERMINED. § 51 
 
 Statutory Terms. 
 
 § 51. The terms used in many of the garnishment 
 statutes to denote what property may be attached by 
 garnishment are very general and sweeping, and do 
 not seem to have been used with any very definite idea 
 or intention as to what classes of property should be 
 covered by each, but rather with the purpose of includ- 
 ing by other terms every species of personal estate 
 which might be considered not to be included in any 
 one term used. The most common terms are proper- 
 ty, money, goods, chattels, credits, and effects. Any 
 one of these terms or the majority of them would seem 
 to cover most of the ground alone. Thus, it is said 
 that the term "effects" is equivalent to worldly sub- 
 stance or anything that can be turned to value.^" The 
 term "property" would seem to be almost as broad.^^ 
 "Chattels" is broader than "goods," and indicates gen- 
 erally all kinds of property except real estate, while 
 goods applies only to inanimate things, having a cor- 
 poreal existence.^* Yet it has been held that the 
 phrase "goods and chattels," when used as a whole, 
 does not include evidences of debt or rights of action.^" 
 The word "debt," as used in these statutes, may be 
 said generally to mean an obligation payable in mon- 
 
 2 6 Hogan V. Jackson (Eng. 1774) 1 Coop. 304. Compare The Alpena, 
 7 Fed. 361. 
 
 2 7 Banning v. Sibley, 3 Minn. 389 (Gil. 282, 298): Crone v. Braun, 
 23 Minn. 239; Ide v. Harwood, 30 Minn. 191, 14 N. W. 884; Stahl v. 
 Webster, 11 111. 511; Black, Law Diet. '-Property." 
 
 28 2 Kent, Comm. 342. 
 
 2 8 Kirkland v. Brune, 31 Grat. (Va.) 126. 
 
 (73) 
 
§ 52 LAW OF GARNISHMENT. [Ch. 3 
 
 ey/° for which the defendant may maintain "an action 
 in his own name,'^ either now or at some future time." 
 
 What Kind of Possession is Sufficient to Charge 
 the Garnishee. 
 
 Covirol mttsi be Actual and Exclusive of Defendant. 
 
 § 52. Mere constructive possession or the jus dis- 
 ponendi of property belonging to the defendant is not 
 sufficient to render one liable as his garnishee therefor. 
 Unless the property sought to be garnished is in the 
 actual control of the garnishee, so that he can dispose 
 of it at will, he cannot be charged.^^ For example, a 
 mortgagee cannot be charged as garnishee of the mort- 
 gagor for the value of the mortgaged property above 
 his lien upon it, the same being in the actual posses- 
 sion of the mortgagor.^* And this is so though the 
 garnishee took the conveyance merely for the purpose 
 of defrauding defendant's creditors.'' A flock of 
 
 80 See post, § 117. 
 
 81 See post, § 1.54. 
 3 2 See post, § 126. 
 
 3 3 Andrews v. Ludlow, 5 Pick. 28; Grant v. Shaw, 16 Mass. 341; 
 Nickerson v. Cbase, 122 Mass. 296; Smalley v. Miller, 71 Iowa, 90, 
 32 N. W. iS7. 
 
 A., as a trustee for B., sold C. some railroad iron, reserving in 
 himself the title and right to retake possession if not paid for. The 
 rails were laid, and, after default in payment, A. was summoned as 
 garnishee of B. Held, that he had no such possession of the iron as 
 would make him chargeable. Clarke v. Farnuni, 7 R. I. 174. 
 
 3i Central Bank v. Prentice, 18 Pick. 396; Curtis v. Raymond, 29 
 Iowa, 52; Callender v. Furbish, 46 Me. 226; Kiggins v. Woodke, T< 
 Iowa, 34, 34 N. W. 789, and 42 N. W. 576; Spitz v. Tripp, 86 Wis. 
 25, 56 N. W. 330; Folkerts v. Standish, 55 Mich. 463, 21 N. W. 891. 
 
 3 National Union Bank v. Brainerd, 65 Vt. 291, 26 Atl. 723; Gut- 
 (74) 
 
Oh. 3] LIABILITY OF GARNISHEK HOW DKTEBMINED. § 53 
 
 sheep which the defendant and garnishee are drivins,- 
 onto public weighing scales is as much in the posses- 
 sion of the defendant as of the garnishee. The latter 
 could not deal with it unobstructed by the former, and 
 therefore is not chargeable as his garnishee therefor.^* 
 One whose possession is the defendant's possession, 
 and who has no independent control, cannot be char- 
 ged/^ 
 
 Actual Personal Possession not Necessary. 
 
 § 53. But it is not necessary, in order to charge the 
 garnishee, that he have actual possession of the prop- 
 erty sought to be reached, provided it is in his power.'*' 
 When the garnishee is in possession by his agent, he 
 
 terson v. Morse, 58 N. H. 529. Compare, Cleveland Co-op. Stove Co. 
 V. Wilson, 80 Iowa, 697, 45 N. W. 897. 
 
 3 6 Case V. Dewey, '>r, Mich. 110, 20 N. W. 817; Gleason v. Soutli 
 Milwaukee Nat. Bank, 89 Wis. 531, 62 N. W. 519. Compare First 
 Nat. Bank v. Davenport & St. P. R. Co., 45 Iowa, 120, 126. 
 
 COLLUSIVE COLORABIjE POSSESSION: The defendant, hav- 
 ing anticipated the approach of the sheriff to levy an attachment, ex- 
 ecuted a bill of sale of his stock to the garnishee, locked the store, 
 and gave the key to the garnishee, who, in the presence of all par- 
 ties, warned the sheriff not to touch the stock on pain of prosecution 
 for trespass. Held, that the garnishee had sufHcient possession to 
 charge him. Sabin x. Michell (Or.) 39 Pac. 635. 
 
 3 7 Hall V. Filter Manuf'g Co., 10 Phila. (Pa.) 370. See, also, ante, 
 §§ 42, 43. 
 
 3 8 Lane v. Nowell, 15 Me. 86; Morse v. Holt, 22 Me. 180; Bingham 
 V. Lamping, 26 Pa. St. 340, 67 Am. Dec. 418; Mechanics' Sav. Bank 
 v. Waite, 150 Mass. 234, 22 N. E. 915; Glenn v. Boston & S. Glass 
 Co., 7 Md. 287. 
 
 PROPERTY IN BOND for storage in the United States custom 
 house, though not subject to actual attachment by a state officer un- 
 dertaking to take it out of the custom house, either by paying the 
 duties or giving an export bond, may yet be reached by garnishing 
 the consignees of the property, who could take it out of bond in 
 
 (75) 
 
§ 53 LAW OF GARNISHMENT. [Ch. 3 
 
 may properly be charged, the same as if he were in 
 personal possession,'*^ or such agent may himself be 
 made the garnishee.'"' 
 
 either of these modes, and are therefore in constructive control and 
 possession. Peabody v. Maguire, 79 Me. 592, 12 Atl. 030. 
 
 Contractors for building a courthouse, having become involved, made 
 an assignment to a bank of all money due or to become due from the 
 county to them for work upon the courthouse, in consideration of cer- 
 tain accommodations and advances by the bank. Thereafter certain 
 creditors of the contractors began suit, and had both the bank and 
 the county summoned as garnishees. The court said: "One thing is 
 certain, — either the county or the bank had the custody and control of 
 the fund. We have therefore said that, in our opinion, the bank was 
 the equitable custodian thereof, although it was not in its actual pos- 
 session. It therefore follows that any right or lien which attached to 
 such fund should be protected in a court of equity. * * * The 
 bank therefore had the right to the actual custody of the fund, and 
 we think Burnett & Co. obtained a lien ou the fund in equity by the 
 garnishee proceedings against the bank." County of Des Moines v. 
 Hinkley, 62 Iowa, 637, 17 N. W. 915. To the same effect, see Humph- 
 reys V. Atlantic Milling Co., 98 Mo. 542, 10 S. W. 140. 
 
 LOUS IN BOOM: Owners of a private boom, having exclusive 
 control of the same, may be charged as garnishees for logs of the de- 
 fendant which they have received for safe-keeping, though they claim 
 no lien for control over the logs. Farmers' & Mechanics' Bank v. 
 Wells, 23 Minn. 475. 
 
 3 Ohilds V. Digby, 24 Pa. St. 23; McDonald y. Gillett, 69 Me. 271; 
 Farrell y. Pearson, 26 111. 463. 
 
 So held although the defendant himself was the agent. Ward v. 
 Lampson, 6 Pick. 358. But see Smalley v. Miller, 71 Iowa, 90, 32 
 N. W. 187. 
 
 to GARNISHMENT OF BAILEE TO STRANGER TO SUIT: 
 Mathews v. Smith, 13 Neb. 178, 12 N. W. 821; Bragunier v. Beck 
 & Corbett Iron Co., 41 Kan. 542, 21 Pac. 640; Wile v. Cohn, 63 
 Fed. 759; Citizens' State Bank v. Council Bluffs Fuel Co., 89 Iowa, 
 618, 57 N. W. 444. 
 
 A garnishment of the agent is a defense to a subsequent garnish- 
 ment of the principal. Wile v. Cohn, 63 Fed. 759. 
 
 It also affords the agent a defense to an action against him by his 
 principal. Citizens' State Bank v. Council Bluffs Fuel Co., supra. 
 (70) 
 
Ch, 3J LIABILITY OF GARNISHEE — HOW DETERMINED. § 65 
 
 Right to Retain not Necessary. 
 
 § 54. Nor is it necessary that the garnishee haAe 
 any right to withhold the property from the defend- 
 ant, nor to move or handle it, provided he has it in his 
 power to do so. Thus, it was held that a garnishee 
 was chargeable for the value of the contents of a large 
 box which before the service of the garnishment he 
 had permitted to be left in his storehouse for safe- 
 keeping only, which he declined to be responsible for, 
 and which he had allowed the defendant to remove 
 after the garnishment summons was served.*^ 
 
 Privity of Contract with Defendant not Necessary. 
 
 § 55. It is not necessary that the garnishee should 
 hold property by virtue of any contract with the de- 
 
 *i Loyless V. Hodges, 44 Ga. 647. 
 
 SAFETY DEPOSIT companies are eliargeable as garnishees for 
 property deposited in their vaults for safe-keeping, and the court may 
 require the company to open Its vaults to enable the sherifl: to levy 
 upon their contents. U. S. v. Graff, 67 Barb. (N. Y.) 304. Contra: 
 Bottom V. Clarke, 7 Cush. 487; Gregg v. Nelson, 1 Leg. Gaz. Rep. 
 (Pa.) 128, 8 Phila. 91. 
 
 A peculiar decision under this head is found in Staniels v. Ray- 
 mond, 4 Cush. 314. It was held that a garnishee cannot be charged 
 because of the mere possession of property of the defendant vrithout 
 claim of right to hold it against the owner, because the statute makes 
 him liable only for goods "intrusted or deposited." In this case the 
 garnishee had taken a cow on agreement with defendant to purchase 
 her if approved; but, before the time of trying, the cow had expired, 
 and, before the service of the garnishment summons, he had informed 
 the defendant of his intention not to purcliase, and had delivered her 
 to the defendant, who left her in garnishee's possession, where she 
 was when the writ was served. It is believed that this case was 
 never avowedly overruled, and that it has never be A followed, al- 
 though it has been frequently cited. 
 
 A garnishee is liable for articles of personal property in his posses- 
 sion belonging to the defendant, although such garnishee have no lien 
 
 (77) 
 
§ 56 LAW OF GARKISHMENT. [Ch. 3 
 
 fendant. He is chargeable, though he acquires it 
 wrongfully, without the defendant's consent.*^ He 
 may be charged for property he received from a third 
 person, who claims to own it.*' 
 
 Possession as Trespasser or Jailer. 
 
 § 56. It has been held that one who is a mere tres- 
 passer cannot be charged as garnishee for the proper- 
 ty acquired by his wrongful act.** The only good 
 reason which can be assigned for such a holding is 
 that, if it were permitted to charge garnishees for 
 property held by them as trespassers, an inducement 
 would be heI3 out to persons to connive at trespassei* 
 to gain an unlawful advantage, and thus public peace 
 and personal security would be jeopardized. For 
 these reasons it has been held that sheriffs, jailers, 
 etc., cannot be made garnishees for money or other 
 
 or claim on, or right to retain or exclusively use, the property, and 
 no right to make any use of it longer than the defendant may choose 
 to permit. Brown v. Davis, 18 Yt. 212; Bragunier v. Beck & Corbett 
 Iron Co., 41 Kan. 542, 17 Pac. 640. Compare, First Nat. Bank v. 
 Davenport & St. P. E. Co., 4."> Iowa, 120; Booth v. Gish, 75 Iowa, 
 451, 39 N. W. 704. 
 
 *2 Sweet V. Brown, 5 Pick. 178; De GrafC v. Thompson, 24 Minn. 
 452; Lucas v. Campbell, 88 111. 447. Contra: Huntoon v. Dow. 29 Vt. 
 215; Drake, Attachm. § 485. 
 
 Concerning balances in the hands of officers of the law, see ante, 
 Ǥ 33-35. 
 
 *3 Connor v. Third Nat. Bank, 90 Mich. 329, 51 N. W. 523; Blood- 
 good V. Meissner, 84 Wi.«. 452. 455, 54 N. W. 772; National Bank of 
 New London v. Lake Shore & M. S. Ry. Co., 21 Ohio St. 221. But 
 see Gibson v. National Park Bank, 98 N. Y. 87, 97; Folsom v. Has- 
 ten, 11 Cush. 470. 
 
 *■> Despatch Line v. Bellamy Manuf'g Co., 12 X, II. 2ii5; Wooding 
 y. Puget Sound Nat. Bank, 11 Wash. 527, 40 Pac. 223. 
 
 The garnishee cannot urge the defense that he is a trespasser when 
 the defendant has acqviiesced. Lovejoy v. Lee, 35 Vt. 430. 
 (78) 
 
Oil. .'i] I.IABILITY OF* GARNISHEE HOW DETEUMINED. § 56 
 
 valuables taken from persons held to answer criminal 
 charges/ ° When it appears that the defendant was 
 not arrested under color of a criminal prosecution by 
 an officer in collusion with the plaintiff, and for the 
 purpose of getting posses, ^ion of the property of the 
 debtor by an abuse and perversion of legal process, 
 but that he was arrested for the sole purpose of bring- 
 ing him to punishment for his crime, there can be no 
 objection to charging such officer as his garnishee for 
 any valuables which such officer, in the discharge of 
 his duty, has rightfully taken from the person of his 
 prisoner; and, by the weight of authority, he may be 
 held by such garnishment.*" But an officer can never 
 
 ■•» Robinson v. Howard, 7 Cush. 257; Morris v. Penniraan, 14 Gray, 
 220, 74 Am. Dec. 675; Ricliardson v. Anderson (Tex. App.) 18 S. W. 
 195; Connolly v. Thurber Whyland Co., 92 Ga. 651, 18 S. E. 1004. 
 
 4« Patterson v. Pratt, 19 Iowa, 358; Reifsnj'der v. Lee, 44 Iowa, 
 101, 24 Am. Rep. 733; Closson v. Morrison, 47 N. H. 483, 93 Am. Dec. 
 459. 
 
 PROPERTY NOT CONNECTED WITH OFFENSE CHARGED: 
 "We think it cannot be said that the search was unlawful; but when 
 It was ascertained that the money and property were in no way con- 
 nected with the offense charged, and was not held as evidence of the 
 crime charged, the personal possession of the sheriff should be re- 
 garded as the possession of the prisoner, and the money and property 
 should be no more liable- to attachment tlian if they were in the pris- 
 oner's pockets. To hold otherwise would lead to unlawful and forci- 
 ble searches of the person under cover of criminal process, as an aid 
 to civil actions for the collection of debts." Commercial Exch. Bank 
 V. McLeod, 65 Iowa, 665, 19 N. W. 32<). 
 
 I-Ield, that an officer may lawfully take from a prisoner any val- 
 uable thing which the prisoner might use in effecting his escape, and, 
 therefore, that the same maj- be garnished in the hands of the olBcer. 
 Closson V. Morrison, 47 N. H. 483, 93 Am. Dec. 459. 
 
 COLORABLE PROSECUTION: "After a careful examination of 
 the constitution, prohibiting unreasonable searches and seizures, the 
 common law, the statutes, and authorities, we hold that it Is the duty 
 of an officer, having no other authority than the right to make the 
 
 (79) 
 
§ 56 LAW OF GARNISHMENT. [Gh. 3 
 
 be charged as garnishee for property taken from a 
 prisoner when it appears that the criminal charge was 
 a mere pretext to acquire it, or was made as the in- 
 strument of a private action ; for no lawful thing can 
 be founded on a wrongful act, and it would be a shame 
 
 arrest, to search the party arrested, and seize and remove from him 
 any dangerous weapon found on his person; and he may also seize 
 any money or anything connected with the offense or which may 
 be used as evidence against him on the prosecution, and retain the 
 money or things until turned over to the state's attorney or paid 
 into court, to abide the result of the trial; that an officer, acting in 
 good faith, in the execution of his duty, and proceeding upon prob- 
 able grounds for believing that the money or thing is connected 
 with the offense charged, or may be used as evidence on the trial, 
 may search and take from the defendant, arrested by him on a 
 criminal charge, money found on his person, and he will not be lia- 
 ble in damages for a trespass, although it may turn out that the 
 money or thing was not in fact connected with the offense, or could 
 not be used as evidence of the commission of the offense; that the 
 money or thing seized by the officer, under the foregoing limitations, 
 during the time it is in his hands, or if paid into court, is not in the 
 possession of the defendant, but is thereby sequestered, and subject 
 to attachment or garnishment, under section 2950 of the Code; that 
 if the arrest was not made in good faith, or if the money or thing 
 Is seized without probable grounds for believing that it is connected 
 with the offense, or useful as evidence on the trial, the levy made, 
 under such circumstances, is invalid; or, if procured by trickery or 
 fraud on the part of the attaching creditor, the levy will be held in- 
 valid; and the officer making the levy, if he knows of the fraud, 
 and person procuring it to be done by such means and for such pur- 
 poses, will be liable to a suit for damages. We believe these princi- 
 ples consistent with the personal liberty of the person arrested, as 
 secured to him by the constitution of the state, and concede to the 
 officer all the authority given to him by the common or statute law. 
 We know of no law which will prevent a creditor from having the • 
 property of his debtor levied upon to satisfy his debt, when it can be 
 done without committing a trespass, or by fraud or violence." Ex - 
 parte Hurn, 92 Ala. 102, 9 South. 515. This case contains a careful 
 review of a large number of decisions. 
 (80) 
 
Cli. 3] LIABILITY OF GARNISHKE — HOW DETERMINED. § 57 
 
 to the law if its perverters were allowed to reap the 
 benefits of their evil conduct.*' 
 
 What Constitutes a Debt. 
 
 Promise to Pay Debt of Another — Agency. 
 
 § 57. The question whether the garnishee is indebt- 
 ed to the defendant is determined in garnishment pro- 
 ceedings by the same rules as if the defendant were su- 
 ing the garnishee.** Any person incurring obligations 
 in dealings with an agent may be charged as garnishee 
 therefor in suits against the principal, whether he 
 knew of the agency or not,*" and cannot be charged 
 in suits against the agent; ^^ nor can the agent be 
 charged on account of any obligation assumed in be- 
 half of his known principal, for he does not render 
 himself personally liable," but the principal may be." 
 
 ii Cunningham v. Baker (Ala.) IG South. 68, 71; Ex parte Hurn, 
 92 Ala. 102, 9 South. 515; Pomroy y. Tarmlee, 9 Iowa, 140; Ilsley 
 V. Nichols. 12 Pick. 270. 
 
 <8 Ante, § 46, and post. § 61. 
 
 *» Raynes v. Lowell Irish Ben. Soc, 4 Cush. 343. 
 
 60 Bank of Northern Liberties y. Jones, 42 Pa. St. 536, 44 Pa. St. 
 253; Farmers' & Mechanics' Bank y. King, 57 Pa. St. 202, 98 Am. 
 Dee. 215; Morrill v. Kaymond, 28 Kan. 415; Titcomb v. Seaver, 4 
 Me. .'542; Granite Nat. Bank v. Neal, 71 Me. 125; Thomas v. Parsons, 
 87 Me. 203, 32 Atl. 876; Chapin v. Connecticut River R. Co., 16 Cray, 
 69; Rutherford v. Fullerton, 89 Ga. 353, 15 S. B. 471; McArthur v. 
 Garman, 71 Iowa, 34, .32 N. W. 14; Des Moines Cotton-Mill Co. y. 
 Cooper (Iowa) 61 N. W. 1084. 
 
 01 Lewis V. Smith, 2 Cranch, C. C. 571, Fed. Cas. No. 8,332; Hewitt 
 V. Wheeler, 22 Conn. 557; Fidelity Insurance, Trust & Safe-Dfiposit 
 Co. V. Shenandoah Val. Ry. Co., 33 W. Va. 761, 11 S. E. 58, 66; Voor- 
 hies V. Denver Hardware Co., 4 Colo. App. 428, 36 Pac. 65. 
 
 " Buchanan Co. Bank v. Cedar Rapids, I. F. & N. W. Ry. Co., 
 62 Iowa, 494, 17 N. W. 737. 
 
 lawoarnish. — 6 (81) 
 
§ 57 LAW OP GARNISHMENT. [Ch. 3 
 
 When money is collected for the defendant by his 
 agent, it becomes his immediately ; such agent may be 
 charged as his garnishee; and the original debtor is 
 no longer liable.°^ But one person cannot be substi- 
 tuted for another as the debtor of a third without the 
 consent of the creditor, and therefore when the debtor 
 puts money into the hands of any other person, with 
 directions to pay the debt with it, such person is his 
 own agent, the debt remains, the money continues his, 
 such person has no money belonging to the creditor to 
 whom he agreed to pay it, and is not indebted to him 
 until the creditor assents to the aTrangement, and 
 agrees to look to such person for payment. This same 
 is true of agreements to assume the debt of another. 
 For these reasons the creditor's rights can be gar- 
 nished up to that time only by proceedings against the 
 original debtor; ^* and the money is till then liable to 
 
 53 Kennedy v. Aldridge, 5 B. Mon. (Ky.) 141; Barnard v. Graves, 
 IG Pick. 41. 
 
 LODGE DUES: When treasurers of local lodges of fraternal so- 
 cieties receive payment of dues from the members of such lodges 
 for the purpose of forwarding the same to the head lodge, they may 
 be cliarged therefor as garnishees of the head lodge. Jepson v. In- 
 ternational Fraternal Alliance, 17 R. I. 471, 23 Atl. 15. 
 
 s* Howard Harrison Iron Co. v. Tillman (Ala.) 15 South. 456; Pol- 
 lock V. .Tones, 90 Ala. 492, 11 South. 529; HunUey v. Stone, 4 Wis. 
 91; Merrell v. Campbell, 49 Wis. 535, 5 N. W. 912; IClrby v. Corning, 
 54 Wis. 509, 12 N. W. 69; Searing v. Benton, 41 Kan. 758, 21 Pac. 
 800; Felch v. Eau Plaine Lumber Co., 58 Wis. 431, 17 N. W. 397; 
 Burnham v. Beal, 14 Allen, 217; Casey v. Davis, 100 Mass. 124; 
 Hartman v. Olvera, 54 Cal. 61; Wright v. Poord, 5 N. H. 178; Trie- 
 bel V. Colburn, 64 111. 376; Neuer v. O'Fallon, 18 Mo. 277; Briggs 
 v. Block, 18 Mo. 281. 
 
 An agent who has collected rent for a trustee is not liable to gar- 
 nishment for a debt against the beneficiary. Mcllvaine v. Lancaster, 
 42 Mo. 90. 
 
 A., being indebted to B., procured the promise of C, for a valuable 
 (82) 
 
Ch. 3] LIABILITY OF GARNISHEE HOW DETERMINED. § 58 
 
 garnishment in suit against the person from whom it 
 was received." Afterwards it could be garnished 
 only in suits against the person to whom it was sent.^" 
 These decisions are based upon the fundamental prin- 
 ciples of law that none but the parties to a contract 
 can be bound by it. 
 
 Privity of Contract. 
 
 § 58. Akin to this is another rule, — that no man 
 can acquire rights under a contract to which he is not 
 a party.°^ This last rule has practically ceased to 
 exist in most of the states, but it has been held upon 
 this ground that money due upon a policy of insurance 
 upon the life of a married woman, entered into be- 
 tween her and the insurance company, for the benefit 
 of her husband, cannot be reached by garnishment in 
 a suit against him; °' that a mortgagee to whom poli- 
 cies of insurance were assigned by the mortgagor as 
 
 consideration, to pay this debt, and afterwards B. sued A. for the 
 debt, and, on recovering judgment, summoned 0. as garnishee. Held, 
 that C. should be charged on the above agreement. Martin v. Cope- 
 land, 77 Ga. 374, 3 S. E. 256; Chapman v. Hears, 56 Vt. 389; Yates 
 V. Hurst, 41 Vt. 556. 
 
 6 5 Burger v. Bui'ger, 135 Pa. St. 499, 19 Atl. 1073; Nicholas v. 
 Crook, 56 Md. 55; Cox v. Reeves, 78 Ga. 543, 3 S. E. 620; Kelly v. 
 Roberts, 40 N. Y. 432; Witter v. Little, 66 Iowa, 431, 23 N. W. 909. 
 
 58 Broolfs V. Hildreth, 22 Ala. 469; Smith v. Clarke, 9 Iowa, 241. 
 
 COLLECTION TO APPLY ON ACCOUNT: When a debtor gives 
 his creditor an account to collect, and apply the proceeds on the debt, 
 the money so collected and in the hands of the creditor's attorney 
 belongs to the creditor, and cannot be garnished in a suit against the 
 debtor. Hale v. Foley, 47 Vt. 260. 
 
 6' Anson, Cont. pt. 3, c. 1.. 
 
 B8 Nims V. Ford, 159 Mass. 575, 35 N. E. 100. 
 
 CHANCERY GARNISHMENT: Held, that the fact that garnish- 
 ment cannot be sustained is no reason for granting relief under a 
 bill In equity. Venable v. Rickenberg, 152 Mass. 64, 24 N. E. 1083. 
 
 ,(S3) 
 
§ 59 » LAW OF GAEXl.-HME.NT. [Ch. 3 
 
 security, with a stipulation that any balance after pay- 
 ing the mortgage debt should be paid to a creditor of 
 the mortgagor, cannot be charged as garnishee of such 
 creditor by reason of such surplus in his hands; °° that 
 one who has bound himself by bond to pay an annuity 
 to a person not party to the bond cannot be charged as 
 garnishee of the annuitant by reason of the annuity be- 
 ing in arrear; '" and that a debtor cannot be charged 
 as garnishee of the assignee of his debt."^ These de- 
 cisions all go uDon the assumption that, in order to 
 charge the garnishee as debtorj there must exist a 
 privity of contract between him and the defendant in 
 respect to the liability sought to be attached, and 
 there are numerous other authorities declaring the 
 same doctrine, especially in the New England states.'^ 
 These decisions are ignored by the courts of most of 
 the states, or considered inapplicable to their statutes; 
 and it may be laid down as a general principle that, 
 regardless of any privity of contract, the garnishee^ 
 may be charged as debtor for any money obligation he 
 may owe the defendant."' 
 
 Legacies, etc. 
 
 § 59. When property is devised subject to a trust,, 
 and the devisee accepts the same, he becomes the debt- 
 
 o» Field V. Crawford, 6 Gray, 116. 
 
 eo Brigden v. Gill, 16 Mass. 522. 
 
 <!i Folsom V. Haskell, 11 Gush. 470. 
 
 62 Barker v. Esty, 19 Vt. 131; Field v. Crawford, 6 Gray, 110;. 
 Chase v. Thompson, 153 Mass. 14, 26 N. E. 137; Morey v. Sheltus, 
 47 Vt. 342. 
 
 See, also, Drake, Attachm. §§ 4S7-^91a, 546, where the decisious on 
 this subject are collected and reviewed. 
 
 03 Dunsmoor v. Furstenfeldt, 88 Cal. 522, 26 Pac. 518; De UrafC v. 
 Thompson, 24 Minn. 4.52. 
 (84) 
 
Ch. 3] LIABILITY OF GARNISHEE HOW DETERMINED. § 59 
 
 or of the cestui que trust, and may be charged as his 
 garnishee therefor/* unless discretionary powers are 
 conferred upon the trustee as to the manner of pay- 
 ment or appropriation," ° or to allow the garnishment 
 would be applying the funds contrary to the express 
 directions of the testator; '"' and the debtor of the de- 
 cedent may be charged as garnishee of the heir."' 
 
 «* Woodward v. Woodward, 9 N. J. Law, 115, 17 Am. Dec. 462; 
 I'ark V. Mathews, 30 Pa. St. 28, 2 Grant (Pa.) 130; Easterly v. Keney, 
 3G Conn. 18: Lawrence v. Security Co., 56 Conn. 423, 15 Atl. 406; 
 Red V. Powers, 69 Miss. 242, 13 South. 580; Davis v. Davis, 30 Vt. 
 440; Hinckley v. Williams, 1 Gush. 490; Boyer v. Hawkins, 86 Iowa, 
 40, 52 N. W. 659; Knefler v. Shreve, 78 Ky. 297; Van Amee v. 
 Jackson, 35 Vt. 173. 
 
 UNEARNED ANNUITY: As to payments not yet due the an- 
 nuitant, execution against the garnishee should be stayed till they 
 mature. Red v. Powers, above. "In relation to the rents and profits 
 that may hereafter come into the hands of the trustee, we know of 
 BO law or practice that will enable the petitioner, by the aid of a 
 petition, to seize them before they accrue or come into the hands 
 of the trastee. The mere fact that it is morally certain that the trus- 
 tee will at times liave the funds of the cestui que trust in his hands 
 can make no difCerence." Easterly v. Keney, supra. 
 
 CONDITIONS PRECEDENT: An administrator is chargeable as 
 garnishee of an heir for his sh.are of the estate, although nothing has 
 yet passed Into his hands. Mechanics' Sav. Bank v. Waite, 150 Mass. 
 234, 27 N. E. 915. 
 
 A person to whom land is conveyed upon condition that he pay 
 $1,000 to a third party cannot be charged as garnishee of such third 
 party therefor, in the absence of any promise on his part to pay such 
 amount. Morey v. Sheltus, 47 Vt. 342. 
 
 When the amount due one of several cestuis que trustent has been 
 determined, and nothing remains for the trustee to do but to pay it, 
 he may be charged as garnishee therefor. Haskell v. Haskell, 8 Mete. 
 (Mass.) 545, cited with approval in Estabrook v. Earle, 97 Mass. 302. 
 
 «5 White V. Jenkins, 16 Mass. 62; Brigden v. Gill, Id. 522; Hinck- 
 ley V. Williams, 1 Cush. 490. 
 
 8« Nichols V. Eaton, 91 U. S. 716; Pope's Ex'r v. Elliott, 8 B. Mon. 
 
 67 Simmons v. Carmichael (Tex. Civ. App.) 28 S. W. 690. 
 
 (S5) 
 
'§ 60 LAW OF GAKNISHMENT. [Ch. S 
 
 Garnishee's Contracts. 
 
 Requiring Payment at Particular Place. 
 
 § 60. The liability of the garnishee will not be af- 
 fected by the fact that he has agreed with the defend- 
 ant to pay the money or deliver the property for which 
 he is sought to be charged to the defendant himself, 
 or any other person, at some particular time, or in 
 some state or county other than the one in which he is 
 sought to be charged."^ If this were a defense, it 
 
 (Ky.) 56; Meek v. Briggs, 87 Iowa, 610, 54 N. W. 456; Fisher v. 
 Taylor, 2 Eawle (Fa.) 33; White v. White, 30 Vt. 338; Brooks v. 
 Raynolds, 59 Fed. 923, 8 C. C. A. 371; Raynolds v. Hanna, 55 Fed'. 
 783. 
 
 LEGACIES MAY BE PLACED BEYOND REACH OF CRED- 
 ITORS: "A Isenefactor may certainly provide for the raaintenance 
 of a friend without exposing his bounty to the debts or imprudence 
 of the beneficiary." Holdship v. Patterson, 7 Watts (Pa.) 547; Kins- 
 loe V. Davis, ,167 Pa. St. 519, 31 Atl. 934; Prentice v. Pleasonton 
 (Pa. Sup.) 8 Atl. 842. 
 
 "But the doctrine that the owner of the property, in the exercise 
 of his free will in disposing of it, cannot so dispose of it, but that the 
 object of his bounty, who parts with nothing in return, must hold 
 It subject to the debts due to his creditors, though that may deprive 
 him of all the benefits sought to be conferred by the testator's af- 
 fection or generosity, is one which we are not prepared to announce 
 a.s the doctrine of this court." Nichols v. Eaton, 91 U. S. 725. To 
 the same effect, Steib v. Whitehead, 111 111. 247; Picquet v. Swan, 
 4 Mason, 443, Fed. Cas. No. 11,133. 
 
 CONTRA, WRITTEN ORDERS BEFORE PAYMENT: "It ia true 
 that in the case under consideration the trustee may require the writ- 
 ten order of the cestui que trust before he can be compelled to P9,y 
 the income, but this can make no difference with the ownership of 
 the income. « ■> * The clause in the devise that the rents and 
 profits shall in no case inure to the benefit of the creditors of Good- 
 win can have no effect. If the income was his, it was his for all pur- 
 poses, like any other property.'' Easterly v. Keney, 36 Conn. IS. 
 
 8 8 Drake v. Lake Shore & M. S. Ky. Co., 69 Mich. 168, 174, 37 N. 
 (86) 
 
Ch. 3] LIABIUTY OF GAKNISHEE HOW DETEKMINEU. § 60 
 
 would necessarily defeat every garnishment suit, for 
 the inevitable result and the primary purpose of the 
 proceeding- is to compel the grarnishee to pay the money 
 or deliver the property otherwise than in his contract 
 with the defendant he had agreed to do, so far as he 
 has any contract with him, and to pav and deliver it to 
 a different person than he had agreed with defendant. 
 
 W. 70; Harvey v. Great Nortliern Ry. Co., 50 Minn. 405, 52 N. W. 
 905; Leiber v. Union Pac. R. Co., 49 Iowa, H88; Mooney v. Union 
 Pac. R. Co., CO Iowa, ,340, 14 N. W. 343; Nichols v. Hooper. 61 Vt. 295, 
 17 Atl. 134; Blake v. Williams, 6 Pick. (Mass.) 280, 17 Am. Dec. 372: 
 Stm-tevant v. Robini5on, 18 Pick. 175; Commercial Nat. Bank v. Chi- 
 cago, M. & St. P. Ry. Co.. 45 Wis. 172; East Tennes.see, V. & G. Ry. Co. 
 V. Kennedy, 83 Ala. 402, 3 South. S."3; Hannibal & St. J. R. Co. v. 
 Crane, 102 111. 249, 40 Am. Rep. 581; Pomeroy v. Rand, McNally & 
 Co. (111. Sup.) 41 N. E. 636; Cross v. Brown (R. I.) 33 Atl. 147; I.osee 
 V. McCarty, 5 Utah, 528, 17 Pac. 452; dissenting opinion in Missouri 
 Pac. Ry. Co. v. Sharitt, 43 Kan. 387, 23 Pac. 435. 
 
 RIGHT TO DELIVER AT PARTICULAR PLACE: The gar- 
 nishee cannot be compelled to deliver or pay at a place other than 
 he has agreed with the defendant to do when such .alteration of the 
 place of delivery would be to his disadvantage. Commercial Nat. 
 Bank V. Chicago, M. & St. P. Ry. Co., 45 Wis. 172. But, when he 
 will not be prejudiced, he may be. Adams v. Scott, 104 Mass. 164. 
 
 The garnishee bought a building of the defendant, agreeing to pay 
 for the same in writing paper, at market price, delivered in New 
 York. The court held the garnishee not liable, saying: "The court 
 are of opinion that a person who has made a contract to deliver goods 
 at a place out of the state cannot be charged as trustee of him to 
 whom he has contracted to deliver them. Sections 22 and 24 of our 
 trustee law seem to us decisive of this point. * * ♦ They require 
 that the person who is charged as trustee shall deliver the goods to 
 an officer of the state, but they require him to do it only at the place 
 specified in the contract of delivery. If that place be without the 
 state, the officer has no authority as an officer to go there or to receive 
 the goods there." Clark v. Brewer, 6 Gray, 320. 
 
 Allowing garnishment of goods to be delivered out of the state is 
 not an attempt to regulate interstate commerce. Landa v. Missouri, 
 K. & T. Ry. Co. (Mo. Sup.) 31 S. W. 900. 
 
 (87) 
 
§ 61 LAW OF GARNISHMENT. [Ch. 3 
 
 But the garnishee cannot be charged if payment of the 
 garnishment judgment would not discharge his obliga- 
 tion to the defendant, or entitle him to fulfillment 
 by the defendant of his part of the contract. Thus 
 where the garnishee had agreed with the defendant to 
 pay at New Mexico, by New York or Chicago draft, a 
 certain amount upon the defendants delivering cer- 
 tain cattle at the same time and place, it was held that 
 the garnishee could not be charged."'' 
 
 Garnishee's Contract Rights not Impaired. 
 
 § 61. Nor can the garnishee be charged in any case 
 in such a manner as to deprive him of any bona fide 
 contract rights which he holds as against the defend- 
 ant.^" Thus, he cannot be compelled to perform his 
 contract in a manner more disadvantageous to himself 
 than he had agreed with the defendant, as to pay in 
 money instead of goods." He cannot be charged as 
 garnishee of the defendant on a contract under which 
 he has the option to discharge his obligation by pay- 
 ment to the defendant or another, at least when he 
 
 «9 Hamilton v. Rogers, 67 Mich. 137, 34 N. W. 278. See, also, ante, 
 § 48. 
 
 TO Daggett V. McClintock, 56 Mich. 51, 22 N. W. 105; Rice v. Third 
 Nat. Bank, 07 Mich. 414, 56 N. W. 776; Dawson v. Iron Range & H. 
 B. Ry. Co., 97 Mich. 33, 56 N. W. 106; Balliet v. Scott, 32 Wis. 174; 
 Drake v. Harrison, 69 Wis. 99, 33 N. W. 81; Rock Island Lumber 
 & Manuf'g Co. V. Equitable Trust & Inv. Co., 54 Kan. 124, 37 Pac. 
 984; Cahill v. Bennett, 26 Wis. 577; Kansas Inv. Co. v. Jones (Kan. 
 App.) 42 Pac. 935; Williams v. Housel, 2 Iowa, 157; Dryden v. 
 Adams, 29 Iowa, 195; Truitt v. Griffin, 61 111. 26; Baltimore & O. Ry. 
 Co. V. Wheeler, 18 Md. 372; Baltimore & O. Ry. Co. v. Gallahue, 12 
 Grat. (Va.) 655, 65 Am. Dec. 254; Mensing v. Engelke, 67 Tex. 533, 4 
 S. W. 202; Ghio v. Western Assur. Co., 65 Miss. 532, 5 South. 102; 
 Mobile St. Ry. Co. v. Turner, 91 Ala. 213, 8 South. 684. 
 
 »i See post, § 116. 
 (88) 
 
Ch. 3] LIABILITY OF GAKNIsHEl!; — HOW DETEIiMINED. § 63 
 
 has an interest in paying to the other; '" and, though 
 his interest in that will be presumed, he may give posi- 
 tive evidence of it.'* 
 
 Inmrance — Election to Rebuild. 
 
 § 62. He cannot be held to pay money on proof of 
 liability on an insurance policy, loss having occurred, 
 where the policy contained a provision that the under 
 writer might rebuild, or pay the amount of the loss in 
 money.'* But it has been hinted that in such cases 
 the court, on motion, should hold the case over till 
 the expiration of a limited option, and compel the 
 company to elect which liability it would assume, and 
 charge or discharge it in the end, as its election might 
 require.'" 
 
 Debts Payable on Completion of Contract, 
 
 § 63. When the garnishee has employed the de- 
 fendant on a contract whereby nothing is to become 
 
 •!2 Fitzgerald v. HoUingsworth, 14 Neb. 188, 15 N. W. 345; Doyle 
 T. Gray, 110 Mass. 206; Schafer v. Vizena, 30 Minn. 38T, 15 N. W. 
 675; Vollmer v. Cbicago & N. W. Ry. Co., 86 Wis. 306, 56 N. W. 919; 
 Kiely v. Bertrand, 67 Mich. 332, 34 N. W. 674; Taylor v. Burlington 
 & M. R. Ry. Co., 5 Iowa, 115; Garland v. Sperling (N. M.) 30 Pac. 
 025; Joslyn v. Merrow, 25 Vt. 185. 
 
 7 3 Dralie v. Harrison, 69 Wis. 99, 33 N. W. 81. 
 
 1* Martz V. Detroit Fire & Marine Ins. Co., 28 Mich. 201; Stone v. 
 Mutual Fire Ins. Co., 74 Md. 579, 22 Atl. 1051; Dowling v. Lanca- 
 shire Ins. Co., 89 Wis. 96, 60 N. W. 76; Hurst v. Home Protection 
 Fire Ins. Co., 81 Ala. 175. 1 South. 209. See, also, Jones v. Crews, 
 64 Ala. 368; Carter v. Webster & W. Paper Co., 65 N. H. 17, 17 Atl. 
 878. 
 
 As to proof of loss, see post, § 119. As to adjustment of loss, see 
 post. § 149. 
 
 7s Hurst V. Home Protection Fire Ins. Co., 81 Ala. 175, 1 South. 209. 
 
 Held that, when such an option existed at the time the summons 
 ■was served, the garnishee must be discharged, and it was immaterial 
 
 (89) 
 
§ 64 LAW OF GAENISHMKNT. [Ch. 3 
 
 due till the contract is completed, the garnishee can- 
 not be held unless at the time the summons is served 
 on him the defendant had completed his contract.'* 
 He cannot be charged as upon a quantum meruit for 
 the part already performed if the defendant could not 
 abandon his contract and recover for it. In other 
 words, if the defendant's right to claim anything de- 
 pends upon his completing the contract, the garnishee 
 cannot be bound to pav anything unless the defendant 
 had completed his contract at the time the summons 
 was served on the garnishee." 
 
 When Liable for Part Performance. 
 
 § 64. If the liability of the garnishee to the defend- 
 ant for the part of the contract already performed 
 does not depend upon the completion of the contract 
 by the defendant, there is no reason why the garnishee 
 should not be charged for the amount already per- 
 
 that the company afterwards elected to pay casli. Godfrey v. Macom- 
 ber. 128 Mass. 188. 
 
 TB Smith V. Davis, 1 Wis. 447, 60 Am. Dec. 390; Wheeler v. Day, 
 23 Minn. 545; Potter v. Cain, 117 Mass. 238; Peterson v. Loring, 135 
 Mass. 397; Foster v. Singer, 60 Wis. .392, 34 N. W. 395; Edwards v. 
 Roeplie, 74 Wis. 571, 43 N. W. 554; Warner v. Perkins, 8 Cush. 518; 
 Hennessey \. Farrell, 4 Cush. 267; Robinson v. Hall, 3 Mete. (Mass.) 
 301; Voorhies v. Denver Hardware Co., 4 Colo. App. 428, 36 Pae. 65; 
 Coburn v. City of tiartford, 38 Conn. 290; Curtis v. Alvord, 45 Conn, 
 569; Kettle v. Harvey, 21 Vt. 301; Carter v. Webster & W. Paper Co., 
 65 N. H. 17, 17 Atl. 978; Garland v. Sperling (N. M.) 30 Pac. 925. 31 
 Pac. 499; Hassie v. God Is With tis Congregation, 35 Cal. 378; Early- 
 V. Redwood City, 57 Cal. 193. Compare White v. Hobart. 90 Ala.' 
 368, 7 South. 807. 
 
 An entire conti'act before completion is not a case of debitum iiS 
 praesenti solvendum in future. Potter v. Cain, 117 Mass. 238. 
 
 ^^ Foster v. Singer, 69 "^A'is. 392, 34 N. W. 395; McDonald v. Bryant, 
 73 Wis. 20, 40 N. W. 665. See, also, cases cited above, and aute, § 46;' 
 (90) . 
 
Ch. 3] LIABILITY OF GARNISHEE — HOW DETERMINED. § 66 
 
 formed; '' especially under statutes providing that the 
 garnishee shall be liable for any indebtedness due or 
 to become due.'° And, where the garnisnee is to pay 
 in installments upon estimates for work as the job 
 progresses, he can only be held for the amount due on 
 estimates/" less the amount which, by his contract, he 
 is to retain as indemnity till the job is completed.*' 
 
 Contracts Made after Garnishment, 
 
 § 65. Of course, neither the garnishee nor the de- 
 fendant can, after the garnishment, make any new 
 contract or ratify any previous acts, so as to cut off 
 the plaintiff's lien; *^ and the garnishee can no more 
 than anv other party claim any right under a contract 
 to which he is a stranger.*^ But it is not the purpose 
 of the garnishment statutes to cut off the contract 
 rights of any person other than the defendant. To 
 these, and these only, the plaintiff is subrogated." 
 
 Assignments of the Garnished Property or Debt. 
 
 Garnishment Defeated by Prior Transfer. 
 
 § 66. If the garnishee's indebtedness or the prpper- 
 ty in his possession had been transferred by the de- 
 
 '8 .Toslyn v. Merrow, 25 Vt. 185; Smith v. Davis, 1 Wis. 447, 60 
 Am. Dec. 390. 
 
 7 9 Wheeler v. Day, 23 Minn. 545. See, also, post, § 126. 
 
 8 Webber v. Bolte, 51 Mich. 113, 16 N. W. 257. 
 
 81 American Forcite Powder Manuf'g Co. v. Malone, IGG Pa. St. 
 289, 31 Atl. 90. 
 
 82 Sturtevant v. Robinson, 18 Pick. 175; Gerry v. Remick (Me.) 5 
 Atl. 268; Edgerton v. Martin, 35 Vt. 116; Ellis v. Goodnow, 40 Vt. 
 237. See, also, ante, § 45, and post, § 176. 
 
 S3 Webster v. Randall, 19 Pick. 13. , 
 
 84 Owen V. Estes, 5 Mass. 330; Armor v. Cockburn, 4 Mart. (N. S.; 
 
 Xa.y 667; Dressor v. McCord, 90 111. 389. . 
 
 (91) 
 
§ 66 LAW OF GARNISHMENT. [Ch. 3 
 
 fendant by any valid assignment, completed before the 
 garnishment summons was served, the garnishee can- 
 not be charged on account of such property; and it 
 makes no difference that he did not know of the sale 
 till after the summons was served on him/'' The 
 rights of equitable assignees and claimants will al- 
 ls McDonald v. Kneelancl, 5 Jrinn. 352 (Gil. 284); Williams v. Min- 
 neapolis & St. P. Ey. Co., 27 Minn. 85, 6 N. W. 445; Banning v. Sibley, 
 
 3 Minn. 389 (Gil. 282); Lewis v. Ti-aders' Bank, 30 Minn. 244, 15 N. 
 W. 113; McMahon v. Merrick, 38 Minn. 262, 22 N. W. 543; Mowry 
 V. Crocker, 6 Wis. 326; Beck v. Cole, 16 Wis. 100; Wakefield v. 
 Martin, 3 Mass. 558; Dix v. Cobb, 4 Mass. 508; Warren v. Copelin, 
 
 4 Mete. (Mass.) 594, 598; Thomas v. Sprague, 12 Mich. 120; Smith v. 
 Holland, 81 Mich. 472, 45 N. W. 1017; Coleman v. Scott, 27 Neb. 77, 
 42 N. W. 896; McGuire v. Pitt's Sons, 42 Iowa, 535; Abbott v. Da- 
 vidson (E. I.) 25 Atl. 839; Board of Education v. Duparquet, 50 N. J. 
 Eq. 234, 24 Atl. 922; Walling v. Miller, 15 Cal. 39; Handley v. Pfister, 
 39 Cal. 283; Greentree v. Rosenstock, 61 N. Y. 582; Hudson v. Mc- 
 Connel, 12 111. 170; Cairo & St. L. Ry. Co. v. Killenberg, 82 111. 295; 
 Ives V. Addison, 39 Kan. 172, 17 Pac. 797; Jones v. Lowery Banking 
 Co. (Ala.) 16 South. 11; Schoolfleld v. Hirsh, 71 Miss. 55, 14 South. 
 528. 
 
 This principle was applied under a statute making the garnisher a 
 purchaser for value. Meier v. Hess, 23 Or. 599, 32 Pac. 755. 
 
 NOTICE NECESSARY: There are a few cases holding that notice 
 to the debtor is necessary to complete the assignment; and therefore, 
 If he is summoned as garnishee of the original owner before receiving 
 notice of the assignment, the garnishment will prevail. Ward v. Mor- 
 rison, 25 Vt. 593: Nichols v. Hooper, 61 Vt. 295, 17 Atl. 134; Bishop 
 V. Holcomb, 10 Conn. 444; Van Buskirk v. Hartford Ins. Co., 14 
 Conn. 140, 36 Am. Dec. 473; Rodes v. Haynes (Tenn.) 33 S. W. 564: 
 Clodfelter v. Cox, 33 Tenn. 330, 60 Am. Dec. 157; Miller v. O'Bannon, 
 4 Lee (Tenn.) 398, 403; Robinson v. Baker, 10 Lea (Tenn.) 300. 
 
 NOTICE WHEN NOT NECESSARY: Held, that when the title 
 of the assignor is evidenced by writing, and by the transfer he Is 
 denuded of the indicia of title, the assignment is good without notice. 
 Gayoso Sav. Inst. v. Fellows, 6 Cold. (Tenn.) 467. 
 
 STATE REGULATES LAW OF TRANSFER: "The power of a 
 state to regulate the transfer of all property within its territory is 
 (92) 
 
Ch. 3] LIABILITY OF GARNISHEE — HOW DETERMINED. § 66 
 
 ways be protected, and will thus far defeat the gar- 
 nishment/" If the assignee or beneficiary under the 
 
 well established. Story, Confl. Laws, par. 390; Green v. Van Bus- 
 kirk, 7 Wall. 151. When this power is asserted by legislation of 
 the state where the property is situated, any principle of comity in 
 conflict therewith must not render the legislation invalid." Steel v. 
 Goodwin, 113 Pa. St. 288, 6 Atl. 49. The law of the place where the 
 garnishment suit was tried governs in determining the subsequent 
 liability of the garnishee to the assignee. Warren v. Gopelin, 4 Mete. 
 (Mass.) 594. 
 
 An assignment valid where made is valid everywhere. Butler v. 
 Wendell, 57 Mich. 62, 23 N. W. 460. Compare Gllman v. ICetcham, 
 84 Wis. 60, 54 N. W. 395; Martin v. Porter, 34 Vt. 87. 
 
 GENERAL ASSIGNMENT DISSOLVING GARNISHMENT: In 
 some states an assignment for benefit of creditors made within a 
 certain time after an attachment or garnishment dissolves such levy. 
 This means an assignment complete within the time. Palmer v. 
 Woodward, 28 Conn. 248. 
 
 FOREIGN INSOLVENCY PROCEEDINGS are held not to pre- 
 vent charging debtors of the insolvent in garnishments subsequently 
 Instituted. Cross v. Brown (R. I.) 33 Atl. 147, 153. 
 
 When a creditor residing in a state where the insolvency proceed- 
 ings are instituted, and where his debtor resides, afterwards brings 
 a suit in another state, and garnishes debts or property there situ- 
 ated, belonging to the Insolvent, and thus seeks to gain advantage 
 over other creditors, the courts of such state will give effect to the 
 Insolvency proceedings, and dismiss the garnishment. The prior In- 
 solvency proceedings will be disregarded only to protect from in- 
 jury creditors residing where the attachment is laid. Gilman v. 
 Ketcham, 84 Wis. 60, 54 N. W. 395; Long v. Girdwood, 150 Pa. St. 
 413, 24 Atl. 711. 
 
 IN ILLINOIS, garnishing creditors share pro rata; and an as- 
 signment after the first garnishment, but before the rest, is post- 
 poned to all garnishments. Reeve v. Smith, 113 111. 47; National 
 Bank of America v. Indiana Banking Co., 114 III. 483, 2 N. E. 401. 
 
 When an assignment is shown, the court has no right to disregard 
 
 8« Carr v. Waugh, 28 111. 418; Dressor v. McCord, 96 111. 389; 
 Smith V. Clarke, 9 Iowa, 241; Haas v. Old Nat. Bank, 91 Ga. 307, 18 
 S. E. 188; Chamberlin v. Gilman, 10 Colo. 94, 14 Pac. 107. 
 
 (93) 
 
I 67 LAW OF GARNISHMENT. [Ch. 3 
 
 assignment waive all claims under it, and consent that 
 judgment be rendered in favor of the plaintiff in gar- 
 nishment, of course the objection does not lie in the 
 mouth of the garnishee.*' 
 
 Garnishee's Notice of Assignment. 
 
 § 67. If the garnishee receive notice of the assign- 
 ment at any time before he is charged, and so that he 
 has opportunity to communicate the fact to the court, 
 he should not be charged.^" But, on the other hand, 
 if the garnishee had no knowledge of the fact, pay- 
 ment of the garnishment judgment will afford him full 
 protection pro tanto.*" Mere rumor of an assignment 
 coming to the ear of the garnishee is not sufficient to 
 charge him with notice."" But, if he received notice 
 from the assignee or his agent, it matters not how.°^ 
 
 It, assuming it to be invalid; the plaintiffs must impeach it. Hecht 
 V. Green, 61 Cal. 269: Wilhelmi v. Haffner, 52 111. 222. 
 
 WHAT FACTS SHOW AN ASSIGNMENT: See First Nat. Bank 
 V. Van Brocklin, 72 Iowa, 761, 33 N. W. 151; Clark v. Wiss, 34 
 ICan. 553, 9 Pac. 281; Chamberlin v. Gilman, 10 Colo. 94, 14 Pac. 107. 
 
 ST Des Moines Sav. Bank v. Colfax Hotel Co., 88 Iowa, 4, 55 N. 
 W. 67. 
 
 88 Noble V. Smith, 6 R. I. 446; Tracy v. McGarty, 12 E. X. 168; 
 Northam v. Cartwright, 10 R. I. 19; Lee v. Robinson, 15 R. I. 369, ,5 
 Atl. 290; Cray ton v. Clark, 11 Ala. 787. See, also, post, §§ 206, 207. 
 
 89 See post, § 205. 
 
 »o Beck V. Cole, 16 Wis. 95. 
 
 WHAT CONSTITUTES NOTICE: Held, that this notice must 
 emanate from the assignee, and be given by his procurement, but 
 need not be given, by him personally or by his agent employed di- 
 rectly for that purpose. Barron v. Porter, 44 Vt. 587; Peck v. Wal- 
 ton, 25 Vt. 33; Webster v. Moranville, 30 Vt. 701; Briekett v. Nichols, 
 Id. 743; Farmers' & Mechanics' Bank v. Drury, 35 Vt. 469. 
 
 Notice to a local agent of an insurance company held not notice to 
 
 01 See following page. , . 
 
 i.H) 
 
Ch. 3] LIABILITY OF GARNISHEE — HOW DETERMINED. § (58 
 
 Assignment without Notice to Assignee. 
 
 § 68. When an assignment is made, and, before the 
 assignee has knowledge of the assignment, creditors 
 of the assignor attach the property by levy or garnish- 
 ment, courts do not agree as to which shall prevail, — 
 the assignee or the attaching creditor. On the one 
 hand, it is urged that the assignee's assent to that 
 
 the company, and notice to general agent held good notice. Weed Sew- 
 ing-Machine Co. v. Boutelle, 56 "Vt; 570. 
 
 Notice by claimant to garnisliee's wife, and by her communicated 
 to him, is sufficient. Holt v. Babcock, 63 Vt. 634, 22 Atl. 459. 
 
 When a demand Is due from two or more jointly, notice to one is 
 sufficient. Foster v. Mix, 20 Conn. 395; Ayott v. Smith, 40 Vt. 532, 
 94 Am. Dec. 429; Thayer v. Lyman, 35 Vt. 646. 
 
 The garnishee, having received a letter purporting to be signed by 
 one P., and stating that he had bought the note involved in the gar- 
 nishment suit, describing it, and aslfing payment, testified that he did 
 not know the handwriting of P. Held, that the letter was not notice 
 of the assignment. McAllister v. Brooks, 22 Me. 80, 38 Am. Dec. 282. 
 
 Suing and declaring on the assigned demand is sufficient notice of 
 the assignment. Austin v. Ryan, 51 Vt. 110. 
 
 Notice to the overseer of the poor is not good to show an assign- 
 ment of money due from the town for keeping a pauper. Thompson 
 V. Downing, 48 Vt. 646. Notice on Sunday is sufficient. Crozior v. 
 Shants, 43 Vt. 478. 
 
 It must be actual, and not constructive, notice. Stearns v. Wrisley, 
 30 Vt. 661. 
 
 »i Bank of St. Mary v. Morton, 12 Rob. (La.) 409; Barron v. Porter, 
 44 Vt. 587. 
 
 FORM, PURPOSE, AND EVIDENCE OF NOTICE: The notice 
 may be merely casual, and for no definite purpose, and yet be suf- 
 ficient. Dale V. Kimpton, 46 Vt. 76. 
 
 "No particular form of words is necessary for such notice, but the 
 idea— the fact— that he had such an assignment must be fairly and 
 substantially made known." Gaboon v. Morgan, 38 Vt. 234; Dale v. 
 Kimpton, supra. 
 
 To determine this question, the whole transaction and various in- 
 terviews may be considered. Dale v. Kimpton, supra. 
 
 (95) 
 
§ 69 LAW OF GARNISHMENT. [Ch. 3 
 
 which can only be beneficial to him may be presumed 
 till the contrary is shown; "^ and, if the assignment be 
 to trustees for the benefit of the real parties in inter- 
 est, the legal estate immediately passes and vests in 
 the trustees."' and the subsequent assent will relate 
 back to the time of executing the instrument."* On 
 the other hand, it is said that no such presumption of 
 acceptance can be indulged against an attaching or 
 garnishing creditor, and that the garnishee is liable if 
 summoned before the beneficiaries under the assign- 
 ment assent to it.°^ 
 
 Splitting up Demands. 
 
 § 69. It is a general rule of law that claims cannot 
 be split up so as to subject a party to distinct suits 
 against his will, and that, although the demand may 
 be assigned, yet he may insist upon his right to dis- 
 charge it by one payment to one person, and that as- 
 
 92 Randolph Bnnk v. Armstrong, 11 Iowa, 515; Van Winkle v. 
 Iowa, I. & S. F. Co., 56 Iowa, 245, 9 N. W. 211; Halsey v. Fairbanks, 
 4 Mason, 206, Fed. Cas. No. 5,964. 
 
 »3 NicoU V. Mumford, 4 .Johns. Ch. (N. Y.) 51i2, 529; Houston v. Now- 
 land, 7 Gill & J. (Md.) 480; Schoolfirfld v. Hirsh, 71 Miss. 55, 14 
 South. 528. 
 
 04 Halsey v. Fairbanks, 4 Mason, 206, Fed. Cas. No. 5,964; Smith 
 V. Millett, 11 R. I. 528. Compare Cooper v. McClun. 16 111. 435. 
 
 9 3 Ward V. Lampson, G Pick. 338; Brewer v. Pitkin, 11 Pick. 298; 
 Fall River I. W. Co. v. Croade, 15 Pick. 11; Edwards v. Mitchell, 
 1 Gray, 239; Swan v. Crafts, 124 Mass. 453; Pierce v. O'Brien, 129 
 Mass. 314; Alliance Milling Co. v. Eaton. 86 Tex. 401, 25 S. W. 
 614; WiUis v. Murphy (Tex. Civ. App.) 28 S. W. 362; Scheuber v. 
 Simmons, 2 Tex. Civ. App. G72, 22 S. W. 72; Greene & Button Co. 
 V. Remington, 72 Wis. 648, 656, 39 N. W. 767; Cornish v. Russell, 
 32 Neb. 397, 49 N. W. 379; Sabin v. Michell (Or.) 39 Pac. 635. 
 
 Alliance Milling Co. v. Eaton, supra, contains an exhaustive and 
 able review of the decisions on this question. 
 (96) 
 
Ch. 3] LIABILITY OF GARNISHEE HOW DETEBMINED. § 70 
 
 signments of part of a demand cannot be sustained un- 
 less assented to by the party owing it."" But authori- 
 ties are not wanting to the effect that an assignment 
 of a part of a demand without the assent of the person 
 bound to pay it is good against one subsequently sum- 
 moning him as garnishee in a suit against the as- 
 signor." Of course, it is no defense to the garnish- 
 ment that it would split up the demand, for the stat- 
 ute contemplates such results."* 
 
 Orders, Checks, and Drafts as Assignments of the 
 Fund Dra-wrn on. 
 
 An Equitable Assignment of Amount of Order. 
 
 § 70. By the weight of authority, when an order, 
 draft, or bill for a valuable consideration is drawn on 
 the whole of a particular fund, it operates as an equi- 
 table assignment of such fund to the payee, who is 
 therefore entitled to the same against one afterwards 
 garnishing the drawee in a suit against the drawer be- 
 fore such order is presented for payment or accept- 
 or Gibson v. Cooke, 20 Pick. 15, 32 Am. Dec. 194; Carter v. Nichols, 
 58 Vt. 553, 5 Atl. 197. 
 
 7 Exchange Bank v. McLoon, 78 Me. 498, 40 Am. Rep. 388; Home 
 V. Stevens, 79 Me. 262, 9 Atl. 616; Holbrook v. Payne, 1.51 Mass. 
 383, 24 N. E. 210; County of Des Moines v. Hinkley, 62 Iowa, 637, 
 17 N. W. 915; National Bank of America v. Indiana Banking Co., 114 
 111. 483, 2 N. E. 401; Daniels v. Meinhard, 53 Ga. 359. 
 
 ASSIGNMENTS AS SECURITY: When an assignment of the legal 
 title was not intended to pass the whole property, but merely to se- 
 cure payment to the assignee of a certain debt, then the garnishee 
 should at least be charged for the balance. Beck v. Cole, 16 Wis. 
 100; Leighton v. Heagerty, 21 Minn. 45; Macomber v. Doane, 84 
 Mass. 541. 
 »e Pomeroy v. Rand, McNally & Co. (111. Sup.) 41 N. E. 636. 
 
 LAW GARNISH. 7 (97) 
 
§ 71 LAW OF GARNISHMENT. [Cll. 3 
 
 ance; ^^ and, though such order be not in terms drawn 
 against any particular fund, the fact that it is for the 
 same amount as the fund in question, together with 
 other circumstances, may tend to show an intent that 
 it should operate as an assignment, which intent, when 
 proved, controls.^ "^ 
 
 Same — Commercial Bank Account. 
 
 § 71. It has been held that when a depositor draws 
 a check on his banker in the regular course of business, 
 who has funds to an equal or greater amount, it op- 
 
 t>9 Lee V. RobinsoD, 15 R. I. 369, 5 Atl. 290; Macomber v. Doane, 
 2 Allen, 541; Lewis v. Traders' Bank, 30 Minn. 134, 14 N. W. .587; 
 Kingman v. Perkins, 105 Mass. Ill; Corser v. Craig, 1 "Wash. C. 
 C. 424, Fed. Cas. No. 3,255; Robins v. Bacon, 3 Me. 346; .Tenness 
 V. Wharff, 87 Me. 307, 32 Atl. 908; State v. Hastings, 15 Wis. 75; 
 First Nat. Bank v. Dubuque S. W. Ry. Co., 52 Iowa, 378, 3 N. W. 
 395. 
 
 ORDER MUST HAVE BEEN INTENDED AS ASSIGNMENT: 
 "The claim was for the balance due on a horse trade. * * * The 
 order, being a bill of exchange not accepted, created no liability, but 
 for that very I'easou did not extinguish or change the character of 
 the original liability, and was not inconsistent with a transfer or 
 assignment of it. * * * If an assignment was really intended, the 
 order was a proper auxiliary to aid in completing it." Tabor v. Van 
 Vranken, 39 Mich. 793. 
 
 100 Haas V. Old Nat. Bank, 91 Ga. 307, 18 S. B. 188; Fourth Nat. 
 Bank v. Mayer, 89 Ga. 108, 14 S. E. 891; Jones v. Glover, 93 Ga. 
 484, 21 S. E. 50; Moore v. Davis, 57 Mich. 251, 23 N. W. 800; Throop 
 Grain Cleaner Co. v. Smith, 110 N. Y. 83, 17 N. E. 671; Moore v. 
 Lowrey, 25 Iowa, 336, 95 Am. Dec. 790; Miller v. Hubbard, 4 Cranch, 
 C. C. 451, Fed. Cas. No. 9,574. 
 
 VARYING WRITING BY PAROL: "A written instrument, plain 
 on its face, cannot be changed into something else by anything the 
 parties said at the time of making it." Lewis v. Traders' Bank, 30 
 Minn. 134, 14 N. W. 587. 
 
 Expert testimony is inadmissible to explain an instrument having 
 a definite legal Import. Freeman v. Exchange Bank, 87 Ga. 45, 13 
 S. E. 160. 
 (98) 
 
Ch. 3] LIABILITY OF GARNISHEE HOW DETERMINED. § 72 
 
 ■crates to transfer the sum named to the payee, be- 
 cause the banker receives the deposit upon a promise, 
 express or implied, to pay tlie same on the checlis of 
 the depositor by whomsoever presented, and, there- 
 fore, that the check holder is entitled to the fund 
 against the garnishing creditor of the drawer.^"^ In 
 ilecisions to the contrary, it is said that all checks are 
 payable only at the banking house, not in the order in 
 which they are drawn, but in the order in which they 
 are presented for payment, from which it follows that 
 the drawer can defeat any check by drawing out his 
 funds upon subsequent checks first presented, and that 
 garnishment has the same effect/"^ 
 
 Payee Has No Rights Till Order is Accepted. 
 
 § 72. It is believed that, with the above exceptions, 
 the holder of a mere order upon the garnished fund has 
 no claim to it which he can maintain against a gar- 
 
 101 National Bank of America v. Indiana Banking Co., 114 111. 483, 
 2 N. E. 401; Miller v. Hubbard, 4 Cranch, C. C. 451, l^ed. Cas. No. 
 9,574; Corser v. Craig, 1 Wash. C. C. 424, Fed. Cas. No. 3,255; Kob- 
 ert.s V. Austin, 20 Io\^'a. 315. 
 
 STOPPING PAYMENT OF CHECKS: The garnishee having paid 
 his debt to the defendant by check which the latter had transferred 
 for value before the garnishee was served, held, that the olieck oper- 
 ated as a payment, though the garnishee could and did stop pay:nent 
 of it. National Park Bank v. Levy, 17 R. I. 746, 24 Atl. 777. See, 
 also, post, § 137a. 
 
 102 BuUard v. Randall, 1 Gray, 605, 61 Am. Dec. 433; Moore v. 
 Davis, 57 Mich. 251, 23 N. W. 800; Lewis v. Traders' Bank, 30 Minn. 
 134, 14 N. W. 587; Sands v. Mathews, 27 Ala. 399; Kuhn v. Warren 
 Sav. Bank (Pa. Sup.) 11 Atl. 440; Rosenthal v. Mastin Bank, 17 
 Blatchf. 318, Fed. Cas. No. 12,063; Dolsen v. Brown, 13 La. Ann. 
 r)51; .Tones v. Pacific Wood, Lumber & Flume Co., 13 Nev. 359, 39 
 Am. Rep. 308. 
 
 TNACCEPTED DRAFT NOT ASSIGNMENT: "The purchaser of 
 ■a. draft is supposed to take it in reliance upon the responsibility of 
 
 (99) 
 
§ 73 LAW OP GAENISHMENT. [Ch. 3 
 
 nishment served between the giving of such order and 
 its acceptance by the drawee.'"^ As soon as a payee 
 of an order receives and the drawee accepts it, the as- 
 signment is complete, and the payee takes precedence 
 to subsequent garnishments."* 
 
 What is Assignable — Future "Wages and Debts to 
 
 Accrue. 
 
 Things Having No Existence. 
 
 § 73. A thing which has no potential existence can- 
 not be assigned; a mere possibility, not coupled with 
 
 the drawer, and he has no other reliance until it is accepted!" Moore 
 V. Davis, 57 Mich. 255, 23 N. W. 800. 
 
 Held, that the holder of a checii cannot maintain an action in his 
 own name against the drawees, though they have sufficient funds 
 of the drawer, if they refuse to accept it. Saylor v. Bushong, 100 
 Pa. St. 27, 45 Am. Eep. 352, and note at end of case. 
 
 103 Poole V. Carhart, 71 Iowa, 37, 32 N. W. 16; Holbrooli v. Payne, 
 151 JIass. 383, 24 N. E. 210; Hobson v. Kelly, 87 Mich. 187, 49 N. 
 W. .533; Baer v. English, 84 Ga. 403, 11 S. E. 453; Jones v. Glover, 
 93 Ga. 484, 21 S. B. 50. 
 
 PAROL ACCEPTANCE: A. was indebted to B., and B. to C, and 
 C. to D., whereupon B. gave C. the following order on A.: "Please 
 pay the bearer of these lines two hundred and thirty-six dollars, and 
 charge the same to my account." A. verb.ally accepted this order, 
 and soon after D. garnished A. on its judgment against C, and B. 
 appeared as a claimant of the fund. Held that, though A.'s accept- 
 ance was not sufficient to bind him, the order operated as an equitable 
 assignment, and D. should recover in the garnishment. Wheatley 
 v. Strobe, 12 Cal. 92, 73 Am. Dec. 522. 
 
 An acceptance, to be available, must be valid, under the statute of 
 frauds. See post, § 377. 
 
 DELIVERY: An acceptance in writing is nugatory unless followed 
 by delivery before the garnishment. Lehigh Coal & Iron Co. v. Su- 
 perior Iron & Steel Co. (Wis.) 64 N. W. 746. 
 
 104 Little Wolf River Imp. Co. v. Jackson, 66 Wis. 42, 27 N. W. 
 625; Ray v. Faulkner, 73 111. 469; Johnson v. Pace, 78 111. 143; Lewis 
 
 (100) 
 
Ch. 3] LIABILITY OF GAENISHEE HOW DETERMINED. 
 
 any interest, is not assignable; and if the person. who 
 acquires title to the property when it afterwards 
 comes into existence,, in anticipation of its future ex- 
 istence and his future right to it, affects to assign all 
 his interest in it, no title will pass to the assignee, and 
 he has no claim to it as against a creditor of the owner 
 who has attached it in the hands of a third person by 
 garnishment. "° 
 
 Wages to be Earned under Existing Employment. 
 
 § 74. But wages to be earned under an existing 
 contract of employment have such potential existence 
 that the title to them may be passed by assignment 
 before they are earned, and in that case the assignee, 
 and not the plaintiff in garnishment subsequently 
 commenced, is entitled to them.^°* The fact that the 
 pav is to be made by the piece for work done, instead 
 of by the day, week, etc., does not change the rule; ^'" 
 
 V. Board of Com'rs, 14 Colo. 371, 23 Pac. 338; Denver, T. & Ft. W. 
 Ey. Co. V. Smeeton, 2 Colo. App. 126, 29 Pac. 815. 
 
 An accepted order for future wages, payable to a firm, gives no 
 rights to the successor of the firm against a garnishment after the 
 wages are earned. Card v. Ahearne (R. I.) 30 Atl. 850. 
 
 105 Mullhall v. Quinn, 1 Gray, 105, 61 Am. Dec. 414; Eagan v. 
 Luby, 133 Mass. 543; Herbert v. Bronson, 125 Mass. 475; Purcell 
 V. Mather, 35 Ala. 570; Lehigh Val. Ry. Co. v. Woodring, 116 Pa. 
 St. 513, 9 Atl. 58, 61. Compare Edwards v. Peterson, 80 Me. 367, 
 14 Atl. 936. 
 
 lOG Erackett v. Blake, 7 Mete. (Mass.) 335, 41 Am. Dec. 442; Emery 
 V. Lawrence, 8 Cush. 151; Tiernay v. McGarity, 14 R. I. 231; Getchell 
 V. Maney, (i9 Me. 442; Denver, T. & Ft. W. Ry. Co. v. ^meeton, 2 
 Colo. App. 126, 29 Pac. 815; Manly v. Bitzer, 91 Ky. 596, 16 S. W. 
 464. 
 
 10 7 Kane v. Clough. 36 Mich. 436, 24 Am. Rep. 599; Hartley v. 
 Tapley, 2 Gray, 565. 
 
 Kane v. Clough, above, contains an elaborate view of the decision 
 upon this subject. 
 
 (101) 
 
§ 75 LAW OP GARNISHMENT. [Ch. S 
 
 nor that the employment is for an indefinite time or 
 revocable; ^"^ nor that the rate of wages has been 
 changed since the assisrnment, and before the garnish- 
 ment; ^"^ nor that the assignee, in consideration of the 
 assignment, is to supply the family of the assignor 
 with groceries, etc/^" 
 
 Invalid and Fraudulent Assignments. 
 
 Bona Fides may be Tried in Garnishment. 
 
 § 75. Garnishment is an appropriate proceeding in 
 which to test the good faith and validity of an alleged 
 assignment, and by it the plaintiff is placed in a posi- 
 tion to question both.^" 
 
 los Thayer, V. Kelley, 28 Vt. 19, 45 Am. Dec. 222; Brackett v. Blake, 
 7 Mete. (Mass.) 335, 41 Am. Dec. 442; Taylor v. Lynch, 5 Gray. 
 49; Lannan v. Smith, 7 Gray, 150; Wallace v. Walter Heywood Chair 
 Co., 16 Gray, 209; Boylen v. Leonard, 2 Allen, 407; Augur v. New 
 York Belting Co., 39 Conn. 536; Haynes v. Thompson, 80 Me. 125, 
 13 Atl. 276. 
 
 109 Boylen v. Leonard, 2 Allen, 407. 
 
 110 Darling v. Andrev.-s, 9 Allen, 100; Neumann v. Calumet & 
 Hecla M. Co., 57 Mich. 97, 23 N. W. 600; Thayer v. Kelley, 28 Vt. 
 19, 45 Am. Dec. 222; Sanborn v. Ward, 64 N. H. 611, 6 Atl. 27. 
 
 111 Fearey v. Cummings, 41 Mich. 376, 1 N. W. 946; North Star 
 Boot & Shoe Co. v. Ladd, 32 Minn. 381, 20 N. W^ 334; First Nat. 
 Bank v. Knowles, 67 Wis. 373, 389, 28 N. W. 225; Bloodgood v. 
 Meissner, 84 Wis. 452, 54 N. W. 772; Jaseph v. People's Sav. Bank. 
 132 Ind. 39, 31 N. E. 524; Brainard v. Van Kuran, 22 Iowa, 261, 266; 
 Citizens' State Bank v. Council BlufEs Fuel Co., 89 Iowa, 618, 57 N. 
 W. 444; Welsh v. Noyes, 10 Colo. 133, 14 Fac. 317; Humphreys v. 
 Atlantic Mill. Co., 98 Mo. 542, 10 S. W. 140; Crane v. Stickles, 15 
 Vt. 252; Dore v. Dougherty, 72 Cal. 232, 13 Pac. 621; Perego v. 
 Bonesteel, 5 Biss. 69, Fed. Cas. No. 10,977. CONTRA, Throop Grain 
 Cleaner Co. v. Smith, 110 N. Y. 83, 17 N. B. 671; Anthony v. Wood, 
 96 N. Y. 180; Perea v. Colorado Nat. Bank (N. M.) 27 Pac. 322; 
 Huntoon v. Dow, 29 Vt. 215. 
 
 Held, that fraud in obtaining judgment in favor of the garnishee 
 (102) 
 
Ch. 3] LIABILITY OF GARNISHEE HOW DETERMINED. § 76 
 
 Plaintiff may Recover though Defendant could not. 
 
 § 76. Any person holding property in fraud of the 
 defendant's creditors may be charged as garnishee 
 therefor/^^ although the defendant could maintain no 
 action against him."^ Of course, the garnishee can 
 
 against the defendant's assignee in insolvency cannot be tried by gar- 
 nisliment. Sclineider v. Lee (Or.) 17 Pac. 269. 
 
 NO JURISDICTION IN CHANCERY: The case of Humphreys 
 Y. Atlantic Milling Co., above, was a creditors' bill in equity before 
 judgment obtained against the debtor; and the court held that it 
 could not be sustained, because the remedy at law had not been ex- 
 hausted, and garnishment affords a speedy and ample relief in all 
 such cases. 
 
 EQUITABLE ISSUES NOT INVOLVED: Such cases do not nec- 
 essarily raise the question whether a mere equitable right can be at- 
 tached, for a fraudulent transfer is void at law as well as in equity, 
 and creditors have their legal remedies to annul the covinous title. 
 Custer V. Steever, 36 N. J. Law, 304; Kelley v. Andrews (Iowa) 62 
 N. W. 853. 
 
 ATTACHMENT A BEl'TER REMEDY: "The plaintiff, by attach- 
 ing the debt, was entitled to raise the question of the fraudulent or 
 fictitious character of Lovejoy's claim thereto, but, having failed to 
 attach the mortgaged property, is not in a position to object that such 
 a claim was invalid because the mortgage was not filed." Coykendall 
 V. Ladd, 32 Minn. 529, 21 N. W. 733. 
 
 JURISDICTION: Anj' court otherwise competent may entertain 
 proceedings to test the validity of the assignment, as well as the 
 one in which the assignee for creditors has filed his bond. Kolm v, 
 Ryan, 31 Fed. 636; Rothschild v. Hasbroucli, 65 Fed. 283. 
 
 PLAINTIFF AFFIRMING SALE CANNOT CHARGE FRAUD: 
 "When the plaintiff attempts to charge the garnishee as debtor, and 
 not for property in his hand, the sale is thereby affirmed, and cannot 
 be attadted for fraud. Sickman v. Abefnathy, 14 Colo. 174, 23 Pac, 
 447; Sayers v. Kent (Pa. St.) 1 Atl. 442; Bishop v. Catlin, 28 Vt. 
 71; Woodward v. VVyman, 53 Vt. 645. 
 
 112 Enos V. Tuttle, 3 Conn. 27; Sutton v. Hasey, 58 Wis. 556, 17 
 N. W. 416; Hooper v. Hills, 9 Pick. (Mass.) 435. 
 
 113 Hawes v. Mooney, 39 Conn. 37; Lamb v. Stone, 11 Pick. (Mass.) 
 527; Citizens' State Bank v. Council Bluffs Fuel Co., 89 Iowa, 618, 
 
 (103) 
 
§ 77 LAW OP GARNISHMENT. [Ch. 3 
 
 never set up his own fraud as a defense; ^^* but there 
 are decisions to the eifect that the plaintiff can com- 
 , plain only of frauds to which the defendant is a party, 
 and not of those practiced upon the latter by the gar- 
 nishee."^ If the garnishee had disposed of the prop- 
 erty before being summoned, he may be charged for 
 the proceeds then in his possession.^^' 
 
 No Matter Who Claims to Own It. 
 
 § 77. It makes no difference as to his liability 
 whether the garnishee claims to own the property him- 
 
 57 N. W. 445; Healey v. Butler, G6 Wis. 9, 17, 27 N. W. 822; Barker 
 V. Lynch, 75 Wis. 024, 029, 44 N. W. 826; E. B. Millar & Co. v. Plass, 
 11 Wash. 237, 39 I'ac. 950; Lee v. Tabor, 8 Mo. 322; Lackland v. 
 Garesche, 50 Mo. 207; Byerman v. Krieckhaus, 7 Mo. App. 455; 
 .laseph V. People's Sav. Bank, 132 Ind. 39, 31 N. E. 524; Henry v. 
 Murphy, 54 Ala. 246; Van Ness v. McLeod, 2 Idaho, 1147, 31 Pac. 
 798; Fearey v. Cummings, 41 Mich. 378, 1 N. W. 940. 
 
 CANNOT COMPLAIN OF FRAUD ON OTHERS: "The plaintiff's 
 right to recover goods or their value from Treusch [garnishee] was 
 wholly dependent on Lustig's [defendant's] title to them and owner- 
 ship of them. It was not material, as an ultimate fact, in this con- 
 troversy, that the Treusch Bros, conspired with Lustig to defraud the 
 persons from whom the goods held by Treusch were purchased. The 
 persons thus defrauded could, of course, recover in trover the value 
 of the goods from the Treusch Bros, as transferees with knowledge 
 of the fraud." Gumberg v. Treusch (Mich.) 61 N. W. 872. But see 
 Treusch v. Ottenburg, 4 C. C. A. 629, 54 Fed. 867. 
 
 A DONATIO CAUSA MORTIS may be garnished in a suit 
 against an administrator for a debt of the decedent. Harmon v. 
 Osgood, 151 Mass. .501, 24 N. E. 401. 
 
 114 Kenosha Stove Co. v. Shedd, 82 Iowa, 540, 48 N. W. 933. 
 
 115 Goddard v. Guittar, 80 Iowa, 129, 45 N. W. 729; Garretson v. 
 Kane, 27 N. J. Law, 208; Curtis v. Steever, 36 N. J. Law, 304, 308. 
 See, also, Kingman v. Perkins, 105 Mass. 111. But compare section 
 48, ante; Lovejoy v. Lee, 35 Vt. 430. 
 
 116 PROCEEDS OF PROPERTY DISPOSED OF: Hawesv. Moon- 
 ey, 39 Conn. 37; Risser v. Rathburn, 71 Iowa, 113, 32 N. W. 198; 
 
 (104) 
 
Ch. 3] LIABILITY OP GAENISHEE — HOW DETERMINED. § 77 
 
 self, and has title in his own name/" or whether title 
 is in a stranger, whom he supposes to be the real own- 
 er,"* or whether he holds it as trustee, under a deed of 
 
 Jaseph V. People's Sav. Bank, 132 Ind. 39, 31 N. B. 524; Keep v. 
 Sanderson, 12 Wis. 352, 362, 60 Am. Dec. 404; Gutterson v. Morse, 
 58 N; H. 529; Proctor v. Lane, 62 N. H. 457; Heineman v. Schloss, 
 83 Mich. 153, 47 N. W. 107; Bresnalian v. Nugent, 92 Mich. 76, 52 
 N. W. 735; Ti-eusch v. Ottenburg, 4-0. 0. A. 629, 54 Fed. 867. 
 
 Before the question was covered by statute, it was held in Michigan 
 that no recovery could be had for the proceeds of property sold. 
 Fearey v. Cummings, 41 Mich. 376, 1 N. W. 946; Folkerts v. Stand- 
 Ish, 55 Mich. 463, 21 N. W. 891; Bethel v. Linn, 63 Mich. 464, 468, 
 30 N. W. 84. 
 
 INTEREST ON the proceeds may be recovered from the time of 
 conversion. Kisser v. Rathbum, supra. 
 
 EXCEPTION: Of course, no recovery can be had against a gar- 
 nishee for proceeds disposed of by him bona fide in a manner binding 
 on the defendant before the garnishment. Stickney v. Crane, 35 
 Vt. 89. 
 
 The garnishee, having taken possession of certain property un- 
 der a bill of sale as security, and having taken a mortgage upon 
 other property, sold all his interest therein, and his entire claim 
 against the defendant, to a third person, through the defendant as 
 agent, before the garnishment summons was served. The court 
 held that the garnishee, having sold his interest in the property 
 and parted with possession and control of it, and applied the pro- 
 ceeds to the payment of the defendant's debt to him before service 
 of the garnishment summons, he cannot be charged, whether the 
 mortgage and bill of sale were valid or invalid, or his possession 
 was lawful or unlawful, as against the other creditors of the de- 
 fendant. Jones V. Keller (Wis.) 05 N. W. 732. See, also, ante, 
 § 52. 
 
 iiT Robinson v. Smith, 63 Mich. 350, 29 N. W. 858; Pearey v. 
 Cummings, 41 Mich. 376, 1 N. W. 946; Cummings v. Fearey, 44 
 Mich. 39, 6 N. W. 98; Treusch v. Ottenburg, 4 C. C. A. 639, 54 Fed. 
 867; Warder v. Baker, 67 Wis. 409, 30 N. W. 932; Cowles v. Coe, 
 21 Conn. 220. 
 
 lis Connor v. Third Nat. Bank, 90 Mich. 328, 51 N. W. 523; National 
 Bank v. Lake Shore & M. S. Ry. Co., 21 Ohio St. 221; Patton v. 
 
 (105) 
 
§ 78 LAW OF GARNISHMENT. f*^'^- ^ 
 
 general assignments for the benefit of defendant's cred- 
 itors."" 
 
 Pleadings — Proofs — Defenses. 
 
 § 78. In such cases it is not necessary for the plain- 
 tiff to allege fraud in his pleadings anywhere, but evi- 
 dence of the facts may be given on the trial; ^''° and 
 the garnishee who is a party to the fraudulent purpose 
 cannot maintain even such defenses as he would be 
 justly entitled to between him and ^he defendant 
 
 . 121 
 
 Gates, 67 111. 164. Contra, Gibson v. National Park Bank, 98 N. Y. 87; 
 Himsted v. German Bank, 46 Ark. 537. 
 
 119 Farrington v. Sexton, 43 Micb. 454, 5 N. W. 654; Blake v. Hub- 
 bard, 45 Mich. 1, 7 N. W. 204; Richardson v. Rogers, 45 Mich. 591, 
 8 N. W. 526; Folkerts v. Staudish, 55 Mich. 463, 21 N. W. 891; 
 Atkinson v. Weidner, 79 Mich. 575, 583, 44 N. W. 1042; Black v. 
 Dawson, 82 INIich. 485, 46 N. W. 793; Banning v. Sibley, 3 Minn. 
 389 (Gil. 282, 295); Stein v. La Dow, 13 Minn. 381; May v. Walker, 
 33 Minn. 194, 28 N. W. 252; McConnell v. Rakness, 41 Minn. 3, 42 
 N. W. 539; Kimball v. Evans, 58 Vt. 655; Stickney v. Crane, 35 
 Vt. 89; ^^ernon v. Upson, 60 Wis. 418, 19 N. W. 400; Grever v. Cul- 
 ver, 84 Wis. 295, 54 N. W. 585; Kohn v. Ryan, 31 Fed. 636. 
 
 In Minnesota it is held that, If the assignment for benefit of cred- 
 itors is valid upon its face, garnishment does not lie. Second Nat. 
 Bank v. Schranck, 43 Minn. 38, 44 N. W. 524. 
 
 DISBURSEMENTS: If the assignee acted in good faith, he should 
 be allowed to retain his necessary expenses out of the property, 
 though the assignment was void. Haydock Carriage Co. v. Pier, 78 
 Wis. 579, 47 N. W. 945; Noyes v. Brent, 5 Cranch, C. C. 551, Fed. 
 Cas. No. 10,372; Bishop v. Catlin, 28 Vt. 71. 
 
 i2o_See post, § 358. 
 
 121 Cummings v. Fearcy, 44 Mich. 39, 6 N. W. 98; St. Louis Bro- 
 kerage Co. V. Cronin, 14 Mo. App. 586. 
 
 A garnishee having received a conveyance from defendant absolute 
 on its face, but by agreement between him and defendant that it 
 should be for security only between themselves, and absolute against 
 creditors, held that the garnishee should be charged unconditionally. 
 Thompson v. Pennell, 67 Me. 159. 
 
 A case arose in Ohio in which one of the garnishees took an assign- 
 (106) 
 
Ch. 3] LIABILITY OF GARNISHEE HOW DETEKMINED. § 79 
 
 but he cannot be charjjed as a wronjjjful holder unless 
 his holding is actually wrongful.^" Though the gar- 
 nishee may have taken of the defendant a mortgage 
 void as to creditors of the defendant, he cannot be 
 charged unless he has received propertv. It is the re- 
 ceipt of property, and not the taking of the mortgage, 
 that makes the garnishee liable.^'*^ 
 
 Fraud a Question of Fact. 
 
 § 79. In this, as in all other proceedings when the 
 facts are undisputed, fraud is a conclusion of law from 
 the facts proved; ^^* otherwise, it is a question of fact, 
 and the burden of proof is on the plaintiff; '-"^ but the 
 greatest latitude of evidence should be allowed when 
 
 ment of a stock of goods from the defendant for the purpose of de- 
 frauding the latter's creditors, and, in payment for the same, gave 
 the defendant his note, which the defendant immediately assigned for 
 value to the other garnishee, who was also aware of the fraudulent 
 purpose. After the garnishees were summoned, the plaintiff and other 
 creditors of the defendant seized and sold the goods under attach- 
 ment, and then sought to get their value in the garnishment suit. 
 The court said: "They may pursue the property in the hands of the 
 fraudulent vendee, and cause the same to be sold for their benefit, 
 or they may compel the vendee to account for its value. If they 
 obtain either the property or its value from the vendee, their rights as 
 to that property are exhausted. * * * They cannot obtain from 
 the vendee both the property and its value in money. That would 
 be a double remedy. * * * It is not necessary to determine in this 
 case what would be the rights or liabilities of a fraudulent vendee, 
 when complicated by the claim of one creditor pursuing the property 
 of his debtor, with that of another seeking to recover of him its price 
 or value only." Bradford v. Beyer, 17 Ohio St. 389, 394. 
 
 122 Lyon V. Ballentine, 63 Mich. 97, 104, 29 N. W. 837. 
 
 123 See ante, § 52, and post, § 175. 
 
 124 Pettibone v. Stevens, 15 Conn. 19, 38 Am. Dec. 57; Beers v. 
 Botsford, 13 Conn. 146; Long v. Martin, 15 Mich. 60. 
 
 125 Bethel v. Linn, 63 Mich. 464, 468, 30 N. W. 84; Hewitt v. W^agar, 
 
 (107) 
 
§ 80 I,AW OF GARNISHMENT. [Gh. 3 
 
 fraud is sought to be shown/^° Ordinarily, it is bad 
 faith which avoids the trarsfer, and therefore the in- 
 tent is the gist of the inquiry/" 
 
 Badges of Fraud. 
 
 § 80. Gross insufflciency of consideration for the 
 transfer, or uncertainty of it/^* lack of candor, and at- 
 tempts to suppress and conceal the facts, and secret 
 defeasances back to the grantor,^^^ any of these and 
 many others are strong presumptive evidences of 
 fraud, and sufficient to cast upon the garnishee or 
 claimant the burden of making a satisfactory explana- 
 tion; ^" and, failing to do so, the garnishee should be 
 
 Lumber Co., 38 Mich. 701; Treiisch t. Ottenburg, 4 C. C. A. 629, 
 M Fed. 867; Hecht v. Green, 61 Cal. 269; Perea v. Colorado Nat. 
 Bank (N. M.) 27 Pac. 322. 
 
 MEASURE OF BURDEN OF PROOF: "Tlie court further in- 
 structed the jury that 'the proof to estabUsh fraud must be clear 
 and convincing.' * * « The words 'clear proof and 'hearty convic- 
 tion' are apt to mislead. Proof of facts and circumstances is suf- 
 ficiently clear if it creates a belief that a fraud has been perpetrated, 
 and a conviction so produced is sufficiently hearty to predicate a ver- 
 dict upon." Gumberg v. Treusch (Mich.) 61 N. W. 872. 
 
 12 North Star Boot & Shoe Co. v. Ladd, 32 Minn. 381, 20 N. W. 
 334; Cummlngs v. Fearey, 44 Mich. 39, 6 N. W. 98; Gumberg v. 
 Treusch (Mich.) 61 N. W. 872; B. B. Millar & Co. v. Plass, 11 Wash. 
 237, 39 Pac. 956; Henny Buggy Co. v. Patt, 73 Iowa, 485, 35 N. W. 
 587. 
 
 127 Spear v. Rood, 51 Mich. 140, 16 N. W. 312; Stein v. Hermann, 
 23 Wis. 1^2; Gage v. Chesebro, 49 Wis. 486, 5 N. W. 881. 
 
 12S stein v. Hermann, 23 Wis. 132; Spear v. Rood, 51 Mich. 140, 
 16 N. W. 312; Meigs v. Weller, 90 Mich. 629, 634, 51 N. W. 681; 
 Stevens v. Dillman, 80 111. 233. 
 
 12 Meigs v. Weller, 90 Mich. 629, 634, 51 N. W. 681. 
 
 ISO Treusch v. Ottenburg, 4 C. C. A. 629, 54 Fed. 868; Hart v. 
 Rafter, 78 Ga. 478, 3 S. E. 699. 
 (108) 
 
Ch. 3] LIABILITY OF GAENISHEE HOW DETERMINED. § 81 
 
 charged."^ The presence of apparent consideration 
 is of little significance.^^^ 
 
 Facts Raising Conclusive Presumption of Fraud. 
 
 § 81. But there are certain facts from which the 
 law raises a conclusive presumption of fraud, — such 
 as failure to record a mortgage, or talie possession of 
 the property;^"" a total absence of consideration;^" 
 and, in assignments for the benefit of creditors, l^eep- 
 ing part of his property by the defendant, although 
 the deed of assignment in terms is broad enough to 
 cover all; "° or giving the assignee power to sell on 
 credit; "° or failure to secure all his creditors equal 
 rights under the assignment.^"' But statutes forbid- 
 ding preferences in assignments for the benefit of cred- 
 itors do not apply to at^signments made out of the 
 state. If these are valid where made, they are valid 
 anywhere."^ Statutes prohibiting preferences in as- 
 
 181 Meigs V. Weller, 90 Mich. 629, 634, 51 N. W. 681. 
 
 132 Frisk V. Reigelman, 75 Wis. 499, 504, 43 N. W. 1117. 
 
 183 Sanger v. Guenther, 73 Wis. 354, 41 N. W. 436; Fearey v. Cum- 
 mings, 41 Mich. 376, 1 N. W. 946; Crippen v. Fletcher, 56 Mich. 386, 
 23 N. W. 56; FoUterts v. Standish, 55 Mich. 463, 21 N. W. 891; Coy- 
 kendall v. Ladd, 32 Minn. 529, 21 N. W. 733. 
 
 Jlortgage on intangible property need not be recorded. Lawrence 
 V. McKenzie, 88 Iowa, 432, 55 N. W. 505. 
 
 13-1 Beck V. Cole, 16 Wis. 101. 
 
 135 Farrington v. Sexton, 43 Mich. 454, 5 N. W. 654. 
 
 i36Truitt V. Caldwell, 3 Minn. 364 (Gil. 257), 74 Am. Dec. 764; 
 Richardson v. Rogers, 45 Mich. 591, 8 N. W. 526; Keep v. Sanderson, 
 2 Wis. 42, 12 Wis. 352; Lord v. Devendorf, 54 Wis. 491, 11 N. W. 
 903; Harvey v. Mix, 24 Conn. 406. 
 
 137 Atkinson v. Weldner, 79 Mich. 575, 583, 44 N. W. 1042; Harvey 
 v. Mix, 24 Conn. 406. 
 
 13 8 Butler V. WendeU, 57 Mich. 62, 23 N. W. 460; Mo wry v. Crocker, 
 
 (109) 
 
§ 81 LAW OF GAKNISHMENT. [Ch. 3 
 
 signments for the benefit of creditors do not apply to 
 the conveyances of defendant's property to certain of 
 his creditors, to the exclusion of all others/^' unless 
 it is substantially an assignment of all his property to 
 creditors; for effect should be considered, rather than 
 form."" 
 
 6 Wis. 326; Burdseye v. Bnker, 82 Ga. 142, 7 S. E. 864; Clark v. 
 Connecticut Peat Co., 35 Conn. 303. But see Guillander v. Howell, 
 35 N. Y. 657; Oilman v. Ketcham, 84 Wis. 60, 54 N. W. 395. 
 
 139 Smyth v. Ripley, 33 Conn. 306; Neumann v. Calumet & Hecla 
 Min. Co., 57 Mich. 97, 106, 23 X. W. 600; Whitfield v. Stiles, 57 Mich. 
 410, 24 N. W. 119; Case t. Chesebro, 49 Wis. 486, 5 N. W. 881; 
 Spear v. Rood, 51 Mich. 140, 16 N. W. 312; Austin v. First Nat. 
 Bank, 100 Mich. 613, 59 N. W. 597; Greene & Button Co. v. Rem- 
 ington, 72 Wis. 648, 654, 39 N. W. 767. 
 
 140 Kimball v. Evans, 58 Vt. 655; Woodward v. Wyman, 53 Yt. 
 645; Winner v. Hoyt, 66 Wis. 227, 239, 28 N. W. 380; Bebb v. Pres- 
 ton, 1 Iowa, 460, 3 Iowa, 325; Letts, Fletcher & Co. v. McMaster, S3 
 Iowa, 449, 49 N. W. 1035; Atkinson v. Weidner, 79 Mich. 575, 583, 44 
 N. W. 1042. 
 
 (110) 
 
€ll. 4] STATUrOKY EXEMl'TIONS FKOM GARNISHMENT. § 82 
 
 CHAPTER IV. 
 
 STATUTES EXEMPTING CERTAIN PROPERTY AND CREDITS 
 FROM GARNISHMENT. 
 
 § 82. What Property and Credits are Exempt. 
 
 83. Exemption— How Claimed— An Absolute Right Indefeasible. 
 
 84. A Privilege to be Claimed and Proved. 
 
 8.J. Whether Right or Privilege, Defendant may and Gar- 
 nishee should Claim. 
 
 86. Exemption — How Waived. 
 
 87. Wages, Personal Earnings, Laborers, Householders, etc., De- 
 
 fined — Terms Liberally Construed. 
 
 88. Householders and Heads of Families. 
 
 89. Wages, Salary, Personal Earnings, etc. 
 
 90. Combining Wages and Speculation. 
 
 91. Laborers, Clerks, Mechanics, etc. 
 
 92. Exemption not Affected by Residence. 
 
 93. Limitation of Right to Claim Exemption— Courts cannot Im- 
 
 pose. 
 
 94. Exemption against Debts for Necessaries and Labor. 
 
 95. Exempt Property cannot be Impounded by Garnishment. 
 
 96. Voluntary Sale of Exempt I'roperty — Property not Gai'nish- 
 
 ablo bec'ause of Sale. 
 
 97. Proceeds may be Garnishable. 
 
 98. Proceeds of Exempt Property Destroyed or Converted with- 
 
 out Owner's Consent. 
 
 99. Personal Earnings and Pension Money Exempt after Pay- 
 
 ment. 
 
 100. Exemption Laws have No Force Out of the State. 
 
 101. Limitation of Rule. 
 
 102. Remedy of Persons Defrauded of Their Exemption— May 
 
 Recover from Creditor. 
 
 103. May Enjoin Threatened Wrong. 
 
 104. Suits in Different States— Double Liability of Garnishee— 
 
 Garnishment in Another State as a Defense. 
 
 105. Whether Ground for Continuance or Plea in Bar. 
 
 106. Pleading Exemption in Other States. 
 
 107. Extent and Reason of Protection. 
 
 (Ill) 
 
§ 82 LAW OF GAENI3HMENT. [Cli. 4 
 
 What Property and Credits are Exempt. 
 
 § 82. No person can be charged as garnishee by 
 reason of having in his possession or under his control 
 property belonging to the defendant which is by law 
 exempt from sale on execution, Property exempt 
 from execution is exempt also from garnishment.^ 
 Besides this, the garnishment statutes all contain pro- 
 visions exempting certain property and credits, prin- 
 cipally wages, from liability to garnishment.^ The 
 peculiar provisions of these statutes can be ascertained 
 only by examination, and each practitioner is referred 
 to the statutes of his own state. Besides these, the 
 
 t Wilson V. Bartholomew, 45 Mich. 41, 7 N. W. 227; Davenport v. 
 Swan, 9 Humph. (Tenn.) 186; Staniels v. Raymond, 4 Gush. 314; 
 Brainard v. Simmons, 67 Iowa, 646, 25 N. W. 844; Fanning v. First 
 Nat. Bank, 76 111. 53; Bradley v. Byerley (Kan. App.) 42 Pac. 930; 
 Parks V. Cushman, 9 Vt. 320; Clark v. Averill, 31 Vt. 512, 76 Am. 
 Dec. 131; Sanb. & B. Ann. St. Wis. § 2982, div. 15. 
 
 PURCHASE PRICE OF EXEMPT PROPERTY: Money paid on 
 a contract to buy household furniture which, when purchased, would 
 be exempt, is liable to garnishment when title to the property con- 
 tracted for has not passed. Edson v. Trask, 22 Vt. 18. 
 
 MONEY EXEMPT TO CERTAIN AMOUNT AS PROPERTY: 
 Under statutes exempting personal property to a certain amount from 
 execution without specifying that it shall be of any particular kind, 
 it is held that money due on a judgment may be selected by the 
 debtor, and held exempt from garnishment. Mace v. Heath, 34 Neb. 
 54, 51 N. W. 317. In the same manner, under such statutes, money 
 in the bank or otherwise due the defendant may be claimed as ex- 
 empt. Chilcote V. Conley, 36 Ohio St. 545; Fanning v. First Nat. 
 Bank, 76 111. 53; Emerson & Fisher Co, v. Marshall, 4 Ind. App. 265, 
 30 N. E. 1099. Compare Miller v. Mahoney (Ky.) 29 S. W. 879. 
 Contra, by statute, Finlen v. Howard, 120 111. 259, 18 N. E. 560. 
 
 2 The various exemption clauses of the garnishment statutes will be 
 found reviewed in Freeman on Executions (section 234), and note in 
 91 Am. Dec. 411. 
 (112) 
 
Ch. 4] STATUTORY EXEMPTIONS FROM GARNISHMIiNT. § 83 
 
 I 
 
 United States statutes provide that "no sums of money 
 due, or to become due, to any pensioner, shall be liable 
 to attachment, levy, or seizure by or under any legal 
 or equitable process whatever, whether the same re- 
 mains with the pension office or any officer or agent 
 thereof, or is in course of transmission to the pensioner 
 entitled thereto, but shall inure wholly to the benefit 
 of such pensioner." ^ 
 
 Exemption — Ho-w Claimed. 
 
 An Absolute Right Indefeasible. 
 
 § 83. In some states the statutes absolutely exempt 
 certain property from the operation of the garnish- 
 ment laws, and it is held that the garnishee submits to 
 judgment for the same at his peril, although the de- 
 fendant has not claimed the exemption; for, inasmuch 
 as there is no authority for the garnishment either in 
 the statutes or out of them, his liability to the defend- 
 ant continues.* Besides these, thiere are numerous 
 decisions to the effect that, if the garnishee does not 
 claim the exemption, payment of the garnishment judg- 
 ment will constitute no defense to a suit against him 
 by the exemptionist.^ 
 
 3 Rev. St. U. S. § 474T. 
 
 4 Crisp V. Ft. Wayne & E. Ry. Co., 98 Mich. 648, 650, 57 N. W. 
 1050; Jones v. Whiteselle (Tex. Civ. App.) 29 S. W. 177. 
 
 5 Pierce v. Claicago & N. W. Ry. Co., 36 Wis. 283; Chicago & A. Ry. 
 Co. V. Ragland, 84 111. 375; Lock v. Johnson, 36 Me. 464; Terre 
 Haute & I. Ry. Co. v. Baker, 122 Ind. 433, 24 N. E. 85; Missouri Pac. 
 Ry. Co. V. Whipsker, 77 Tex. 14, 13 S. W. 639; Chicago, St. L. & P. 
 Ry. Co. V. Meyer (Ind. Sup.) 13 N. E. 576; Mace v. Heath, 34 Neb. 
 54, 790, 51 N. W. 317, 822; Watkins v. Gason, 46 Ga. 444; The City 
 of New Bedford, 20 Fed. 57. 
 
 LAW GARNISH. 8 (113) 
 
§ 84 LAW OF GARNISHHENT. [Ch. 4 
 
 A Privilege to be Claimed and Proved. 
 
 § 84. In other states the exemption is held not to 
 be a right, but a mere privilege, which must be claimed 
 in season," and in the proper manner,' or it will be 
 considered as waived; and in these states, at least, the 
 debt or property must be shown under proper allega- 
 tions and issue formed to be exempt, and it will not be 
 presumed to be so.^ 
 
 WHEN EXEMPTION MAY BE CLAIMED: A claim of exemp- 
 tion to avail anything must precede judgment of condemnation. 
 White V. Hobart, 90 Ala. 368, 7 South. 807; Randolph v. Little, 62 
 Ala. 396. Contra, Union Pac. Ey. Co. v. Smersh, 22 Neb. 751, 3(5 
 N. W. 139. Compare Iliff v. Arnott, 31 Kan. 672, 3 Pac. 525. 
 
 "It will hardly be contended that the defendant has forfeited or 
 waived that privilege until he has had notice of the garnishment pro- 
 ceedings." Mull v. Jones, 33 Kan. 112, 5 Pac. 388. 
 
 It is absolutely in the discretion of the court whether it will allow 
 a claim of exemption to be made after the claimant is in default. 
 Buekland v. Tonsmere, 90 Ala. 503, 8 South. 68. 
 
 Claim of exemption made when the garnishee files his answer is 
 in time. Kuhn v. Warren Sav. Bank (Pa. Sup.) 11 Atl. 440. 
 
 A claim of exemption after the money in court has been paid over 
 to the plaintiff is too late. State v. Judge, 39 La. Ann. 622, 2 South. 
 423. 
 
 f Held, that the garnishee cannot claim the exemption for the de- 
 fendant. Conley v. Chilcote, 25 Ohio St. 320, 324, 36 Ohio St. 545; 
 Osborne v. Schutt, 67 Mo. 712. Compare Moore v. Chicago, R. I. & 
 P. Ry. Co., 43 Iowa, 385. 
 
 Held, that the claim of exemption in the garnishee's answer, and 
 a stipulation signed by him and the plaintiff stating that the defend- 
 ant claims it, do not satisfy the statute requiring a verified claim by 
 the defendant himself. Courie v. Godwin, 89 Ala. 569, 8 South. 9. 
 
 AFTER EXPRESS AVAIVER: When the defendant expressly 
 waives his exemption, the garnishee <;innot afterwards urge it. Yates 
 V. Hurst, 41 Vt. 556. 
 
 8 Baer v. Otto, 34 Ohio St. 11; Oakes v. Marquavdt, 49 Iowa, 643; 
 Leighton v. Heagerty, 21 Minn. 42, 46; Donnelly v. O'Connor, 22 
 Minn. 309; Rollins v. AUison, 59 Vt. 188, 10 Atl. 201. 
 
 ALLEGATION OF EXEMPTION AND TRIAL OF CLAIM: As 
 (114) 
 
iCh. 4] STATUTORY EXEMPTIONS FROM GARNISHMENT. § 85 
 
 Whether a Right or a Privilege, Defendant may and Garnishee 
 should Claim. 
 
 § 85. But, whether it is a right or a privilege, it is 
 well settled that the defendant may claim his exemp- 
 tion rights in the garnishment suit," or appeal from 
 
 to what is a sufl3cient affidavit of tlie defendant that the debt was 
 ■exempt from garnishment, see Porter v. Navin, 52 Ark. 3o2, 12 S. W. 
 705; Ware v. Laird, 93 Ga. 342, 20 S. B. 035. In the case of Ware 
 T. I^aird the court held that, when a sufficient claim of exemption is 
 made by the defendant, there is no need to raise that issue upon 
 the answer of the garnishee, but the plaintiff should then be allowed 
 to proceed to trial, and condemn the fund if he can. Further, as to 
 ■what must be stated in the claim of exemption, see Smith v. Chicago 
 & N. W. Ry. Co., 00 Iowa, 312, 14 N. W. 335. 
 
 The plaintiff may oppose the claim by counter affidavits. Baer v. 
 Otto, 34 Ohio St. 11. 
 
 The proper manner of claiming the exemption under the Alabama 
 ifitatute is detailed in Tonsmere v. Buckland, 88 Ala. 312, 6 South. 904. 
 
 When the claim of exemption is not contested, no judgment can be 
 Tendered against the garnishee for the claimed property. Young v. 
 Louisville & N. Ry. Co., 93 Ala. 454, 11 South. 121; Muzzy v. Lantry, 
 30 Kan. 49, 2 Pac. 102. 
 
 NECESSITY OF SECOND CLAIM ON APPEAL: Under a stat- 
 ute allowing the garnishee to be charged for any indebtedness or 
 •other liability accruing up to the time he makes answer, it was held 
 that, although a claim of exemption was properly made and allowed 
 in justice court, a new claim must be made for any liability accruing 
 between the time of the first trial and the answer being filed by the 
 garnishee on plaintiff's demand in the appellate court. Craft v. Louis- 
 ville & N. Ry. Co., 03 Ala. 22, 9 South. 328. 
 
 IN MISSOURI a justice of the peace has no jurisdiction in a case 
 ■of garnishment to determine the defendant's exemption rights, and it 
 is the duty of the officer holding the execution to apprise him what 
 they are, and turn over to him whatever exempt property is received 
 from the garnishee. State v. Barnett, 96 Mo. 133, 8 S. W. 767; State 
 V. Barada, 57 Mo. 562. 
 
 1 Crisp V. Ft. Wayne & E. Ry. Co., 98 Mich. 648, 655, 57 N. W. 
 1050; Chilcote v. Conley, 30 Ohio St. 545; Curran v. Fleming, 76 
 ■Ga. 98; Wales v. City of Muscatine, 4 Iowa, 302. 
 
 (115) 
 
§ 85 LAW OF GAENIhHMENT. [Ch. 4 
 
 the decision rendered therein; ^° and, if he does not, it 
 is not only the garnishee's rigrht, but his duty, in most 
 of the states, to claim and defend the exemption for 
 him." 
 
 10 Wilson V. Bartholomew, 45 Mich. 41, 7 N. W. 227; Crisp v. Ft. 
 Wayne & E. Ry. Co., 98 Mich. 648, 655, 57 N. W. 1050; Wigwall v. 
 Union Coal Min. Co., 37 Iowa, 129; Webster v. City of Lowell, 2 
 Allen, 123. 
 
 11 Crisp V. Ft. Wayne & E. Ry. Co., 98 Mich. 648, 57 N. W. 1050; 
 Missouri Pac. Ry. Co. v. Whipsker, 77 Tex. 14, 13 S. W. 039; Winter- 
 field V. Milwaukee & St. P. Ry. Co., 29 Wis. 589; Pierce v. Chicago 
 & N. W. Ry. Co., 36 Wis. 283, 287; Mineral Point Ry. Co. v. Bar- 
 ron, 83 111. 365; Chicago & A. Ry. Co. v. Ragland, 84 111. 375; J lull 
 V. Jones, 33 Kan. 112, 5 Pac. 388; Missouri Pac. Ry. Co. v. JIaltby, 
 34 Kan. 125, 8 Pac. 235; Missouri Pac. Ry. Co. v. Sharitt, 43 Kan. 
 375, 23 Pac. 430; Terre Haute & I. Ry. Co. v. Baker, 122 Ind. 433, 
 24 N. E. 83; Chitago, St. L. & P. Ry. Co. v. Meyer (Ind. Sup.) 13 
 N. B. 576; Wright v. Chicago, B. & Q. Ry. Co., 19 Neb. 175, 27 N. W. 
 94; Union Pac. Ry. Co. v. Smersh, 22 Neb. 740, 36 N. W. 140; Mace v. 
 Heath, 34 Neb. 54, 790, 51 N. W. 317, and 52 N. W. 822; Clark v. 
 A\-erill, 31 Vt. 512, 515, 76 Am. Dec. 131; Lock v. Johnson, 36 Me. 
 404; Emmons v. Southern Bell Tel. Co., 80 Ga. 760, 7 S. E. 232; 
 Brainard v. Shannon, 60 Me. 342; Staniels v. Raymond, 4 Gush. 314; 
 Gery v. Ehrgood, 31 Pa. St. 329. 
 
 ONLY DEFENDANT CAN CLAIM EXEMPTION: There are a 
 few decisions to the eft'ect that the exemption cannot be claimed by 
 the garnishee. See ante, § 84, note 7. 
 
 DEFENDANT SHOULD BE CALLED: After disclosing the ex- 
 emption, the garnishee should have the defendant cited in to defend 
 also. Missouri Pac. Ry. Co. v. Whipsker, 77 Tex. 14, 13 S. W. 639. 
 
 WHEN THE DEFENDANT KNOWS OF THE PROCEEDING, 
 and delivers his affidavit of exemption to the garnishee, who files the 
 same, and the defendant does not ask him to make any other de- 
 fense, he is under no obligation to make any. Chicago, St. L. & P. 
 Ry. Co. V. Meyer, 117 Ind. 563, 19 N. E. 320. 
 
 IN IOWA: "The whole proceeding being based upon the statute, 
 we would hesitate long before holding that there are other and 
 greater obligations or duties resting upon a garnishee than those im- 
 posed by statute. The law, as it is, imposes inconvenience enough 
 on a garnishee without enlarging its provisions by judicial construe- 
 (IIG) 
 
Ch. 4] STATUTORY EXEMPTIONS FROM GAENISHMENT. § 86 
 
 Exemption — How^ Waived. 
 
 § 86. Unless the statute creating the exemption so 
 provides, no valid w^aiver of its benefits can be made in 
 advance by executory agreement.^^ The delivery of 
 
 tion." Moore v. Chicago, R. I. & P. Ry. Co., 43 Iowa, 385. "AVhether 
 the garnishee is bound or privileged to set up the fact that the money 
 in his hands is exempt from execution or attachment against the 
 debtor, or to notify the debtor of the garnishment in cases where 
 tlie debtor could successfully plead the exemption, has not been de- 
 termined in this state. * * * What is said on this subject in Moore 
 V. Chicago, R. I. & P. Ry. Co., before cited, by way of argument, 
 cannot be regarded as authority, and we prefer to reserve a ruling 
 on this question until its determination is required." Leiber v. 
 Union Pac. Ry. Co., 49 Iowa, 688. See, also. Smith v. Dickson, 58 
 Iowa, 444, 10 N. W. 850. 
 
 12 Mills V. Bennett, 94 Tenn. 651, 30 S. W. 748; Moxley v. Ragan, 
 10 Bush (Ky.) 156, 19 Am. Rep. 61; Levicks v. Walker, 15 La. Ann. 
 245, 9 Am. Law Reg. 112, 77 Am. Dec. 187; Curtis v. O'Brien, 20 
 Iowa, 376, 89 Am. Dec. 543; Carter v. Carter, 20 Pla. 558, 51 Am. 
 Rep. 618; Recht v. Kelly, 82 111. 147, 25 Am. Rep. 301; Burke v. 
 Finley, 50 Kan. 424, 31 Pac. 1065; Branch v. Thompson, 77 N. C. 
 388; Traders' Ins. Co. v. Chase (Tex. Civ. App.) 31 S. W. 1103. 
 
 EXECUTORY WAIVER: To hold otherwise would allow "weak 
 debtors to beggar their families in behalf of sharp and grasping cred- 
 itors. * * * It is to be observed that the garnishee has rights in 
 the premises, and he is under the act of the assembly, but is not a 
 party to the agreement which liis laborer makes with a creditor. Why 
 should he be annoyed and subjected to costs, his work hindered, and 
 his hands deprived of their daily bread, by an agreement between 
 others to which he is not a party, and of which he had no notice? 
 Why should such an agreement be made a rule of law to garnishees, 
 instead of a statute which they knew of when they made their busi- 
 ness arrangements and employed their laborers, and which they had 
 a right to expect would be administered as it is written?" Firmstone 
 V. Mack, 49 Pa. St. 387, 88 Am. Dec. 507. 
 
 '•Every honest man who contracts a debt expects to pay it, and be- 
 lieves he will be able to do so without having his property sold on 
 execution. No one worthy to be trusted would therefore be apt to 
 
 tll7) 
 
§ yG LAW OF GARNISHMENT. [Ch. 4 
 
 property by a garnishee to an officer to be sold is no 
 waiver of the exemption, for the obvious reason that 
 tlie garnishee has no authority to waive anj^thing but 
 his own rights." Subject to the decisions cited in 
 the last preceding section, to the effect that the ex- 
 emption is waived by not claiming it, it is not lost 
 until the exemptionist has waived it by some unequiv- 
 ocal act or declaration; " and the exemption may be 
 claimed either by the garnishee or the defendant after 
 judgment has been rendered against the former, and 
 he has paid the money into court in satisfaction of it, 
 and at any time before payment of it to the plaintiff, 
 at least in the absence of any showing that it could 
 have been made before.^^ 
 
 object to a clause siibjecting all liis property to levy on execution in 
 case of nonpayment. It was against the consequences of such over- 
 coufldence, and the readiness of men to make contracts which may 
 deprive them and their families of articles indispensable to their com- 
 fort, that the legislatiu-e has undertaken to interpose. * * * One 
 object of the legislature was to promote the comfort of families, and 
 to protect them against the improvidence of their head." Kneettle 
 V. Newcomb, 22 N. Y. 2^9, 78 Am. Dec. 18G. 
 
 13 Fanning v. First Nat. Bank, 70 111. 53; Smith v. Johnson, 71 
 Ga. 748; Cox v. Bearden, 84 Ga. 304, 10 S. E. 627. 
 
 The defendant's right to his exemption is not lost by the failure of 
 the garnishee to answer or claim it. Jones v. Tracy, 75 Pa. St. 417. 
 
 14 Kansas City, St. J. & B. C. Ry. Co. v. Gough, 35 Kan. 1, 10 Pac. 
 89, 93. 
 
 1= Union Pac. Ry. Co. v. Smersh, 22 Neb. 751, 36 N. W. 139. Com- 
 pare Smith V. Johnson, 71 Ga. 748. 
 (118) 
 
Gh. 4] STATUTORY EXEMPTIONS FROM GARNISHMENT. § 87 
 
 Wages, Personal Earnings, Laborers, Household- 
 ers, etc., Defined. 
 
 Terms Liberally Construed. 
 
 § 87. These and similar terms appear in the stat- 
 utes declaring what credits shall be free from the de- 
 mands of creditors in garnishment proceedings, and in 
 favor of what persons the exemption shall be allowed, 
 and are used in substantially the same sense as they 
 are in the statutes exempting property from execu- 
 tion.^" The policy of the law — the intent of the legis- 
 lature in enacting these provisions — is too plain for 
 argument. It was to secure to those who toil with 
 their hands, or depend for their subsistence upon their 
 personal earnings, a sufficient amount of the fruits of 
 their labor to supply them and their families with the 
 necessities of life and a few of the conveniences of 
 modern civilization, free from the merciless grasp of 
 their less needy creditors. The constantly increasing 
 numbers of those who work for hire, and the endless 
 variety of positions which they occupy, have entailed 
 considerable litigation in determining what classes of 
 persons are within the meaning of the statute. Hard- 
 ly any two statutes express this purpose in the same 
 terms or confine it within the same limits, and there- 
 fore about all that can be done here is to show by illus- 
 tration that the courts have regarded the spirit rather 
 than the terms of the statute. 
 
 i« See Freem. Ex'ns, §§ 222-234. 
 
 (119) 
 
§ 88 LAW OF GAENISHMENT. [Ch. 4 
 
 Householders and Heads of Families. 
 
 § 88. Some of the statutes extend the benefits of 
 the provisions only to householders or heads of fami- 
 lies." Under such provisions, personal earnings ex- 
 empt to any householder may be claimed by a man 
 who is not keeping house or living with his family, but 
 who has a wife and children in Canada, depending up- 
 on him for support; ^* and an unmarried man living 
 with and supporting his widowed mother is entitled to 
 his personal earnings as the head of a family; ^^ so is 
 a woman who supports her invalid husband and fami- 
 ly'; ^^ so is an unmarried man keeping house with his 
 sister, and partly supporting his younger brothers 
 and sisters, though his mother, living elsewhere, also 
 contributes to their support; " so is a widower who 
 keeps a domestic, and whose son and son's wife live 
 with him without paying board.^^ But a married 
 man, having no children, and separated from his wife, 
 is not,^^ especially when the statute requires that the 
 exemptionist shall reside with his family; ^* nor is a 
 
 17 McLarty v. Tibbs, 69 Miss. 357, 12 South. 557. 
 
 isPettit V. Muskegon Booming Co., 74 Mich. 214, 41 N. W. 900; 
 I.owry V. McAllister, 86 Ind. 543. Compare State v. Finn, 8 Mo. App. 
 i:61; Sea ton v. Marshall, 6 Bush (Ky.) 429, 99 Am. Dec. 683; Pear- 
 son V. Miller, 71 Miss. 379, 14 South. 731. 
 
 IS State V. Kane, 42 Mo. App. 2.53; Parsons v. Livingston, 11 Iowa, 
 104, 77 Am. Dec. 135. Contra, Riley v. Hitzler, 49 Ohio St. 651, 32 
 N. E. 7.53. 
 
 20 Schaller v. ICurtz, 25 Neb, 655, 41 N. W. 642. 
 
 21 Duncan v. Frank, 8 Mo. App. 286. But see Blake v. Bolte fCity 
 Ct. N. Y.) 30 N. y. Supp. 209; Id. (Com. PI.) 31 N. Y. Supp. 124. 
 
 2 2 Tyson v. Reynolds, 52 Iowa, 431, 3 N. W. 469. 
 
 2 3 Spengler v. Kaufman, 43 Mo. App. 5; Linton v. Crosby, 56 Iowa, 
 386, 9 N. W. 311. 
 
 2 4 Wabash Ry. Co. v. Dougan, 41 111. App. 543, affirmed, on an- 
 other point, in 142 111. 248, 31 N. B. 594. 
 (120) 
 
Ch. 4] STATUTORY EXEMPTIONS FROM GARNISHMENT. § 89 
 
 single man wlio helps support his sister in another 
 state. ^^ Ordinarily, a family embraces a collective 
 body of persons, generally relatives and servants, liv- 
 ing together in one house or curtilage, and does not 
 embrace separate individuals w^ho have no common 
 home." 
 
 Wages, Salary, Personal Earnings, etc. 
 
 § 89. The manifest object of the statutes is to ex- 
 empt the personal earnings of the defendant, as con- 
 tradistinguished from any income or profits derived 
 from speculative, mercantile, or other business trans- 
 actions; ^' and it makes no difference by what means 
 they are reckoned or ascertained, or what they may be 
 termed.^' "If there is any difference, in the popular 
 sense, between 'salary' and 'wages,' it is only in the ap- 
 plication of them to more or less honorable services. 
 * * * A merchant pays wages to his servant who 
 sweeps the floor, makes the fire, and runs on errands, 
 but he compensates his salesman or clerk by a sal- 
 ary." " It is immaterial whether the wages agreed 
 to be paid are measured by time, or by the piece, or by 
 the ton or other standard.^" Money earned by defend- 
 ant as superintendent of construction of a building, 
 and reckoned at a certain per cent, of the cost of the 
 
 2 5 Zimmerman v. Pranke, 34 Kan. 650, 9 Pac. 747. 
 
 26 Zimmerman v. Fi-anlie, 34 Kan. 650, 9 Pac. 747; Tyson v. Reyn- 
 olds, 52 Iowa, 431, 3 N. W. 469; Arnold v. Waltz. 53 Iowa, 706, 6 
 N. W. 40; Pearson v. Miller, 71 Miss. 379, 14 South. 731. 
 
 2T Shelly V. Smith, 59 Iowa, 453, 13 N. W, 419. 
 
 2 8 Hamberger v. Marcus, 157 Pa. St. 133, 27 At). G81. 
 
 20 Hamberger v. Marcus, 157 Pa. St. 133, 27 Atl. 681. 
 
 so Seider's Appeal, 46 Pa. St. 57; Hamberger v. Marcus, 157 Pa. 
 St. 133, 27 Atl. G81; Wentroth's Appeal, 3 Wkly. Notes Cas. 248. 
 
 (]21) 
 
§ 90 LAW OF GARNISHMENT. [Ch. 4 
 
 building, is plainly wages for Ms personal services." 
 Money due a photographer for work done by himself is 
 within the term "personal earnings." ^^ Money due 
 a physician for services under an employment by a 
 city at |30 per day to attend smallpox cases is exempt 
 as current wages; '^ but a lawyer's fees for legal serv- 
 ices in a single case are uot.^* The charges of a black- 
 smith for work done for his customers are not wages; '* 
 and an income which is figured upon the profits and 
 losses of a mercantile business is not a salary.^* 
 
 Combining Wages and Speculation. 
 
 § 90. When persons adventure on a small scale so 
 that the profits of their vocation are substantially 
 their personal earnings, or when their personal earn- 
 ings are mingled with other revenues, it is sometimes 
 difficult to determine whether they should be allowed 
 the benefit of the exemption laws. Some of the deci- 
 sions lay down the rule that no exemption can be 
 claimed unless the fund in question is purely the fruits 
 of the personal labor of the defendant; and accord- 
 ingly it was held that the money due a contractor 
 for grading a street, who employed, to aid in the 
 work, two carts, two or three horses, and hands 
 enough, with himself, to keep these in exercise, was 
 
 31 Howell V. McDowell, 47 N. .T. Law, .SjO, 1 .A.tl. 474; Moore v. 
 Heaney, 14 Md. 558. 
 
 3 2 McSkimin v. Knowlton (Cora. PI.) 14 N. Y. Supp. 283. 
 
 33 Sydnor v. City of Galveston (Tex. Civ. App.) 15 S. W. 202. 
 
 Wages cease to be current unless payment is demanded when due. 
 Bell V. Indian Live-Stock Co. (Tex. Sup.) 11 S. W. 344. 
 
 3 4 First Nat. Bank v. Graham, 3 Tex. Civ. App. 462, 22 S. W. 1101. 
 
 S5 Tatnum v. Zachry, 8G Ga. 573, 12 S. E. 940. 
 
 se Brierre v. His Creditors, 43 La. Ann. 423, 9 South. 640. 
 (122) 
 
Ch. 4] STATUTORY EXEMPTIONS FROM GARlNIjHMENT. § 91 
 
 not exempt as wages of a laborer; " and that money- 
 due a boarding house keeper from her boarders is not 
 personal earnings.''* But, on the other hand, it has 
 been held that such board money is earnings; ^^ that 
 money due a miner for coal mined at a fixed rate 
 per ton, who hired a man to help him, is wages;*" 
 that money due a mason under contract whereby he 
 built the foundation of a house, and furnished the ma- 
 terial therefor, for a certain price, the owner, by agree- 
 ment, advancing the money to buy such material as 
 fast as necessary, is personal earnings; *^ that fees due 
 a flour inspector for flour inspected by him in the cham- 
 ber of commerce, with the aid of a deputy, a laborer, 
 and a .bookkeeper, are his earnings;*^ and the same 
 was held of money due defendant for the labor of him- 
 self and his exempt team/'' 
 
 Laborers, Clerks, Mechanics, etc. 
 
 § 91. A laborer is one who subsists by physical toil, 
 in distinction from one who subsists by professional 
 skill. Where physical toil is the main ingredient of 
 services rendered, although directed and made more 
 valuable by skill, the person performing them is a la- 
 s' Heebner v. Chave, 5 Pa. St. 115. See, also, Smitb v. Brooke, 49 
 Pa. St. 147; Henderson v. Nott, 30 Neb. 154, 54 N. W. 87. 
 3 8 Shelly V. Smith, 59 Iowa, 453, 1.3 N. W. 419. 
 
 3 9 Jenks V. Dyer, 102 Mass. 235; Somers v. Keliher, 115 Mass. 165; 
 Jason V. Antone, 181 Mass. 534. 
 
 *o Pennsylvania Coal Co. v. Costello, 33 Pa. St. 241. 
 *i Banks v. Rodenbach, 54 Iowa, G95, 7 N. W. 152; :Millington v. 
 Laurer, 89 Iowa, 822, 56 N. W. 588. 
 42 Brown V. Hebard, 20 Wi3. 326, 91 Am. Dec. 408. 
 
 4 3 Kuntz V. Kinney, 33 Wis. 510. 
 
 (123) 
 
§ 91 LAW OF GARNISHMENT. [Oh. 4 
 
 borer, within the meaning of these statutes.** Upon 
 this principle it has been held that overseers,'"* oil 
 gaugers,"" shipping and receiving clerks,*' forwarding 
 clerks and bookkeepers,** clerks in a store,*" stenogra- 
 phers,^** and locomotive engineers " are laborers, with- 
 in the meaning of these statutes; and that railway 
 presidents,^^ bosses of departments in large factories,^^ 
 commissioners in a suit for partition,'^* conductors of 
 
 44 Williams v. Link, 04 Jliss. &41, 1 South. 907; Caraker v. Math- 
 ews, 25 Ga. 571; In re Ho King, 14 Fed. 724; Weymouth v. San- 
 born, 43 N. H. 171, 80 Am. Dec. 144; Smith v. Brooke, 49 Pa. St. 147. 
 
 LABORERS DEFINED: ''The act was, doubtless, intended to pro- 
 tect and secure to the laborer what was earned by his own hands. 
 'Muzzle not the ox which treadeth out the corn.' It was not designed 
 to protect the contracts of those who speculate upon or make profit 
 out of the labor of others. The term 'labor,' to be sure, is of very 
 extensive signification. The merchant labors, for there is mental as 
 well as corporeal labor; the farmer labors; the professional man 
 labors; the judges labor, as every member of this court can testify. 
 But It is this very capability of enlarged extension which produces 
 the necessity to circumscribe and limit the word as used in the stat- 
 ute, in order to accomplish what we believe must have been the in- 
 tent of the legislature; that is, to secure to the manual laborer, by 
 profession and occupation, the fruits of his own work for the sub- 
 sistence of himself and family." Heebner v. Chave, 5 Pa. St. 315. 
 To the same effect, see Henderson v. Nott, 36 Neb. 154, 54 N. W. 87. 
 
 4 5 Caraker v. Mathews, 25 Ga. 571; Russell v. Arnold, Id. G25. 
 
 46 Hutchinson v. Gormley, 48 Pa. St. 270. 
 
 47 Butler V. Clark, 46 Ga. 4GG. 
 
 4 8 Claghorn v. Saussj-, 51 Ga. 576; Smith v. .Johnson, 71 Ga. 748; 
 Lamar v. Chisholm, 77 Ga. 306; Cox v. Bearden, 84 Ga. 304, 10 S. 
 E. 6:27. 
 
 4" Williams v. Link, G4 Miss. 641, 1 South. 907. 
 
 6 Abrahams v. Anderson, 80 Ga. 570, 5 S. E. 778. 
 
 61 Sanner v. Shivers, 76 Ga. 335. 
 
 62 South & N. A. Ry. Co. v. Falkner, 49 Ala. 115. 
 6 3 Kile V. Montgomery, 73 Ga. 343. 
 
 6 4 State V. Cobb, 4 Lea (Tejm.) 481. 
 {l-2i) 
 
Ch. 4] STATUTORY EXEMPTIONS FROM GARNISHMENT. § 92 
 
 passenger trains/^ commercial travelers/" and bro- 
 kers " are not. 
 
 Exemption not Affected by Residence. 
 
 § 92. It is apprehended that the sound rule as to 
 what persons are entitled to the benefit of the exemp- 
 tion provisions of the garnishment statutes, so far as 
 the residence of the exemptionist is concerned, is stat- 
 ed by the supreme court of Kansas, as follows: "No 
 distinction is made by such sections between residents 
 and nonresidents, or between debts created in Kansas 
 and debts created elsewhere; and the weight of au- 
 thority seems to be that where the statutes do not 
 make any distinction, no such distinction exists; that 
 if the statutes do not restrict the exemption of prop- 
 erty for the payment of debts to residents, or in some 
 other particular class of persons, the courts have no 
 authority to make such restriction, and the statutes 
 will apply to all classes, nonresidents as well as resi- 
 dents." '" 
 
 5 Miller v. Dugas, 77 Ga. 3S6. 
 
 5« Briscoe v. Montgomery, 93 Ga. 602, 20 S. B. 40; Wilder v. Fer- 
 guson, 42 Minn. 112, 43 N. W. 794. Contra, William Deering & 
 Co. V. Ruffner, 32 Neb. 845, 49 N. W. 771. 
 
 6T Hamberger v. Marcus, 157 Pa. St. 133, 27 Atl. 681. 
 
 8 Missouri Pac. Ry. Co. v. Maltby, 34 Kan. 125, 8 Pac. 235, 238. 
 
 The following cases declare the same doctrine: Bell v. Indian 
 Live-stock Co. (Tex. Sup.) 11 S. W. 344; Hewett v. Allen, 54 Wis. 
 584, 12 N. W. 45; Lowe v. Stringham, 14 Wis. 222; Wright v. Chi- 
 cago, B. & Q. Ry. Co., 19 Neb. 175, 27 N. W. 90; Kansas City, St. 
 J. & C. B. Ry. Co. V. Gough, 35 Kan. 1, 10 Pac. 89, 93; Pettit v. 
 Muskegon Booming Co., 74 Mich. 214, 41 N. W. 900; Mineral Point 
 Ry. Co. V. Barron, 83 111. 365; Wabash Ry. Co. v. Dougan, 142 111. 
 248, 31 N. B. 594; Chicago & A. Ry. Co. v. Ragland, 84 111. 375. Com- 
 
 (125) 
 
§ 93 LAW OF GARNISHMENT. [Cll. 4 
 
 Limitation of the Bight to Claim Exemption. 
 
 Courts Cannot Impose. 
 
 § 93. The courts have no authority to make restric- 
 tious or limitations upon the exemption statutes other 
 than those contained in the statutes themselves. The 
 decisions cited in the last section are founded upon 
 this principle. Likewise, the benefits of the statute 
 may be claimed by all classes of persons, professional 
 men as well as laborers, unless the statute excludes 
 them by its own limitations. "^ For the same reason, 
 unless the statute expressly limits the exemption of 
 wages to a certain amount in a given time, the whole 
 amount may be claimed every time the wages are gar- 
 nished, no matter how often, regardless of any sums 
 
 pare Haskill v. Andros, 4 Vt. 609, 24 Am. Dec. 645; Hill v. I.oomis, 
 6 N. H. 263; Sproul v. McCoy, 26 Ohio St. 577. 
 
 EXEMPTION AFFECTED BY RESIDENCE: Such cases as Yel- 
 verton v. Burton, 26 Pa. St. 351, Orr v. Box, 22 Minn. 485, and Mc- 
 Hugh V. Curtis, 48 Mich. 262, 12 N. W. 163, sometimes cited as sup- 
 porting a contrary doctrine to tlie one just stated, have no tendency 
 in that direction nor any bearing on the point. Shall all strangers 
 within our borders be placed in the same category with absconding 
 debtors, and presumptively rogues? The only case directly in point 
 that has come to the knowledge of the writer holding or seeming to 
 hold contrary to the rule stated in the text is Hawkins v. Pearce, 11 
 Humph. (Tenn.) 45, and that has been severely criticised. 
 
 Of course, where the statute expressly limits the exemption to resi- 
 dents it must be followed. Commercial Nat. Bank v. Chicago, M. & 
 St. P. Ry. Co., 45 Wis. 172, 180; Lyon v. Callopy, 87 Iowa, 567, 54 
 N. W. 470; Porter v. Xavin, 52 Ark. 352, 12 S. A^'. 705. 
 
 AN INTENTION TO REMOVE from the state does not affect the 
 right to claim exempt wages. Winslow v. Benedict, 70 111. 120. 
 
 38 Brown v. Hebard, 20 Wis. 32(!, 91 Am. Dec. 408; McCoy v. Cor- 
 nell, 40 Iowa, 4."i7; Millington v. Laurer, 89 Iowa, 322, 56 N. W. 533; 
 Miller v. Hooper, 19 Hun (X. Y.) 394. 
 (126) 
 
Cll. 4] STATUTORY EXEMPTIONS I'EOM GARNISHMENT. § 94 
 
 the defendant may earn, receive, or have due from any 
 otlier employer, and regardless of any sums he may 
 have received just before from the garnishee him- 
 self; '"' and, when the plaintiff prosecutes several suc- 
 cessive garnishments against the same employer at 
 the same time, the statutory exemption may be claim- 
 ed in each."^ In some states the exemption of wages 
 extends only to those earned within a certain time be- 
 fore."^ In such cases the time is reckoned from the 
 date of service of the garnishment summons, and not 
 from the date of its issue. "^ 
 
 Exemption against Debts for Necessarici and Labor. 
 
 § 94. Some and perhaps the majority of the states 
 have statutes declaring that no property shall be ex- 
 empt from execution or other final process upon any 
 judgment for laborers' wages. These might seem to 
 limit the clause of the garnishment statute exempting 
 wages from garnishment, but it has been held under 
 such laws that exempt wages cannot be attached to 
 satisfy a judgment obtained for ^A'ages.''* Some of 
 the statutes provide that money due for wages shall 
 
 6 Waite v. Franciola, 90 Tenn. 191, 16 S. W. 116; Chandler v. 
 White, 71 Miss. 161, 14 South. 4.54 ; Hall t. Hartwell, 142 Mass. 447, 
 8 X. E. 333. 
 
 But, under some statutes, no exemption can be claimed without 
 proof that it is necessary for the family support. Gushing y. Quigley, 
 11 Mont. 577, 29 Pac. 337. 
 
 «i Hall V. Hartwell, 142 Mass. 447, 8 N. K. 333; Haynes v. Thomp- 
 son. 80 Me. 125, 13 Atl. 276. 
 
 2 Bloodgood v. Meissner, 84 Wis. 4.52, 450, 54 N. W. 772; Selig- 
 mann v. Heller Bros. Clothing Co., 69 Wis. 410, 414, 34 N. W. 232. 
 
 63 Bean v. Germauia Life Ins. Co., 54 Minn. 306, 56 N. W. 127. 
 
 6 4 Snyder v. Brune, 22 Neb. 189, 34 N. W. 364; Frutchey v. Lutz. 
 167 Pa. St. 337, 31 Atl. 038; Baker v. Harding, 1 Wilcox (Pa.) 185. 
 Contra, Enke v. Stine, 4 Knlp (Pa.) 56. 
 
 (327) 
 
§ 95 LAW OP GARNISHMENT. [Ch. 4 
 
 not be exempt from certain demands, such as neces- 
 saries. Under such a statute, it was held that a suit 
 on a judgment obtained for necessaries is not a suit for 
 necessaries, as the old debt was merged in the judg- 
 ment, and extinguished.""* The word "necessaries" as 
 here used means necessaries for the family, and not 
 provisions furnished for a boarding house kept by the 
 householder."^ In order to avoid the exemption, the 
 demand sued must be wholly of the class against which 
 exemption is not allowed."' 
 
 Exempt Property cannot be Impotincled by Gar- 
 uishraent. 
 
 § 95. It has been held th^^t exempt property in the 
 hands of the garnishee at the time the writ of garnish- 
 ment is served on him is not tied up by the garnish- 
 ment, and that it is as much the duty of the custodian 
 to deliver it to the owner when demanded as if no gar- 
 nishment had been served on him, and that the OM'ner 
 may sue for and recover the same while the garnish- 
 ment suit is pending; "' and the same is true of ex- 
 es Brown v. West, 73 Me. 23. 
 on LenhofC v. Fisher, 32 Neb. 107, 48 N. W. 821. 
 7 Preem. Ex'ns, § 217, and cases there cited. But see Pullen v. 
 Monk, 82 JVle. 412, 19 Atl. 909. 
 
 6 8 Hanselman v. Kegel, 60 Mich. 540, 543, 27 N. W. 678; Traders' 
 Ins. Co. V. Chase (Tex. Civ. App.) 31 S. W. 1103; Ross v. Bourne, 14 
 Fed. 858, 17 Fed. 703; McCarty v. The City of New Bedford, 4 Fed. 
 818. 
 
 DAMAGES FOR WRONGFUL DETENTION: When it appears 
 that the garnishee delivered the garnished property to the defendant 
 within a reasonable time after receiving notice that it is exempt, 
 the defendant cannot recover damages of him for a wrongful deten- 
 tion of the goods. Hynds y. Wynn, 71 Iowa, 593, 31 N. W. 73. 
 (128) 
 
Ch. 4] STATUTORY EXEMPTIONS TROM GARNISHMENT. § 96 
 
 empt wages."" But this rule could be applied only in 
 a clear case, for, if there were any doubt as to whether 
 the property or wages were exempt in the garnishment 
 suit, the garnishee would have a right to protect him- 
 self against a double liability.'" 
 
 Voluntary Sale of Exempt Property. 
 
 Property not Garnishable because of Sale. 
 
 § 96. Property or credits do not cease to be exempt 
 by reason of an offer or attempt by the defendant to 
 sell them, nor by an actual transfer; and his creditors 
 cannot question the validity of such a sale. What is 
 absolutely exempt he may deal with as he chooses. 
 He may sell it, destroy it, or give it away. He can 
 commit no fraud upon creditors by dealings with prop- 
 erty towards which their eyes can never be turned." 
 
 8 9 Sullivan v. Hadley Co., 160 Mass. 32, 35 N. E. 103; Ross v. 
 Bourne, 14 Fed. 958, 17 Fed. 703; MeCarty v. Steam Propeller City 
 of New Bedford, 4 Fed. 818; The City of New Bedford, 20 Fed. 
 57; Crisp v. Ft. Wayne & E. Ry. Co., 98 Mich. 648, 651, 57 N. W. 
 1050; Bliss V. Smith, 78 111. 359; Hoffman v. Fitzwilliam, 81 111. 521; 
 Davis V. Humphrey, 22 lovca, 137; Emmons v. Southern Bell Tel. 
 Co., 80 Ga. 760, 7 S. E. 232. 
 
 '0 Ulrich V. Hower, 156 Pa. St. 414, 27 Atl. 243. 
 
 '1 Mull V. Jones, 33 Kan. 112, 5 Pac. 388, 393; Anderson v. Odell, 
 51 Mich. 492, 16 N. W. 870; Union Pac. Ry. Co. v. Smersh, 22 Neb. 
 751, 36 N. W. 139; Millington v. Laurer, 89 Iowa, 322, 56 N. W. 533; 
 Parmer v. Turner, 64 Iowa, 690, 21 N. W. 140; Brainard v. Sim- 
 mon.s, 67 Iowa, 646, 25 N. W. 844; Buckley v. Wheeler, 52 Mich. 1, 
 17 N. W. 216; Marshall v. State, 107 Ind. 173, 6 N. B. 142; Abbott 
 v. Smith, 64 N. H. 615, 10 Atl. 817. 
 
 GIFTS OF LABOR AND WAGES: A laborer having given a part 
 
 of his exempt earnings to his wife each month, she deposited the 
 
 same in the bank In her own name, and afterwards the bank was 
 
 summoned as garnishee of the husband, and the court held that it 
 
 LAW GARNISH. — 9 (129) 
 
§ 97 LAW OF GARNISHMENT. [Ch. 4 
 
 It is difficult to understand how a creditor can first be- 
 come entitled to reach his debtor's property the mo- 
 ment it ceases to be his property/* 
 
 Proceeds may be Oarnishahle. 
 
 § 97. But, when exempt property is voluntarily dis- 
 posed of for other property not so exempt, the property 
 or money received in the exchange is liable to the 
 claims of creditors by execution or garnishment," un- 
 less the sale was made pursuant to a previous design 
 to purchase other property to take the place of that 
 sold, which intention must be proved, and will not be 
 presumed.'^ Upon this principle, it has been held 
 that proceeds of a homestead sold for the purpose of 
 buying another therewith art. exempt from garnish- 
 ment.'" The length of time intervening since the sale 
 
 was liable for the money so deposited, saying: "It is argued tlaat they 
 were exempt when given to the wife, and consequently always re- 
 main so. If this be good law, a very easy way has been discovered 
 by which a debtor may in a few years accumulate a competence In 
 the hands of his wife, and snap his fingers at importunate creditors. 
 We cannot subscribe to such a view." Bloodgood v. Meissner, 84 
 Wis. 452, 54 N. W. 772. See, also, Spelman v. Aldrich, 126 Mass. • 
 113; Lane v. Richardson, lai N. C. 642, 10 S. E. 189. 
 
 "All of a debtor's tangible property, save what may be exempt 
 from execution, is liable to be seized in satisfaction of his debts. His 
 labor is not equ.ally available to the creditor for the purposes of sat- 
 isfaction. He may sell it, or give it away, or dispose of it In such 
 manner as he pleases; and, if the transaction infringes no established 
 legal principle, the creditor is remediless." Denver, T. & Ft. W. Ry. 
 Co. V. Smeeton, 2 Colo. App. 126, 29 Pac. 815. 
 
 '2 Anderson v. Odell, 51 Mich. 492, 16 N. W. 870. 
 
 '3 Harrier v. Fassett, 56 Iowa, 264, 9 N. W. 217; Scott v. Brigham, 
 27 Vt. 561; Knabb v. Drake, 23 Pa. St. 489, 62 Am. Dec. 352; Mour- 
 sund V. Priess, 84 Tex. 554. 19 S. W. 775. 
 
 74 Huskins V. Hanlon, 72 Iowa, 37, 33 N. W. 352. 
 
 7 5 Watkins v. Blatschinsld, 40 Wis. 347; State v. Geddis, 44 Iowa, 
 537; Skinner v. ChadweU (liy.) 1 S. W. 437. Compare MitcheU v. 
 (130) 
 
Ch. 4] STATUTORY EXEMPTIONS FROM GARNISHMENT. § 98 
 
 of the old homestead is not essentially a controlling 
 circumstance in determining the intent to buy a new 
 one.'" 
 
 Proceeds of Exempt Property Destroyed or Con- 
 verted without O-wner's Consent. 
 
 § 98. When exempt property is converted into mon- 
 ey, a rifyht of action, or other property, by an event 
 over w^hich the owner has no control or by a proceed- 
 ing wholly in invitum, that into which it is converted 
 is also exempt, whether it would otherwise be so or 
 not. Upon this principle, it has been held that monev 
 •due under an insurance policy upon exempt property 
 destroyed by fire," the assessed damages for condemn- 
 
 Milhoan, 11 Kan. 618. Contra, Mann v. Kelsey, 71 Tex. 609, 12 
 S. W. 43; Executor of Doane v. Doane, 46 Vt. 485; Moursnnd v. 
 Pi'ies.s, 84 Tex. 554, 19 S. W. 775. 
 
 STATUTES ALLOWING SALE AND EXCHANGE OF EXEJIPT 
 HOMESTEAD: The Jlinnesota homestead statute forbids the parties 
 allowed the same to sell it, to wit: "Provided they shall not have 
 the right to sell or convey the said licmestead." Gen. St. 1894, 
 § 5521. llie Wisconsin statute contains a much ditt'erent pro- 
 vision (Sanb. «.t B. Ann. St. § 2983): "A homestead consisting, 
 <etc.,) * * * shall be exempt from seizure or sale, (etc.,) 
 * * * and such exemption shall not be impaired by * * *, 
 nor by a sale thereof, but shall extend to the proceeds derived from 
 such sale while held with the intention to procure another homestead 
 therewith for a period not exceeding two years." Use for other pur- 
 poses of part of the proceeds of homestead and other property sold 
 for a lump sum does not impair the exemption. Binzel v. Gorgan, 
 fi7 Wis. 147, 29 N. W. 89.^i. There need have been no intention to 
 buy another homestead within the state, nor a residence within the 
 state during the two years. Hewett v. Allen, 54 Wis. 583, 12 N. W. 
 45. Securities taken as payment for the homestead are exempt as 
 proceeds. Bailey v. Steve, 70 Wis. 316, 35 N. W. 735. 
 
 T> State V. Geddis, 44 Iowa, 537, 5.39. 
 
 'J Houghton V. Lee, 50 Cal. 101; Bernhelm v. Davitt (Ky.) 5 S. W. 
 
 (131), 
 
§ 93 LAW OP GARNISH MKNT. [Ch. 4 
 
 ing a right of way over a homestead," a judgment re- 
 covered in an action in tort for injuries to exempt 
 property, either negligent or vs^illful,'^ or for wrong- 
 fully attaching and selling the same,^" the surplus due 
 the defendant after satisfaction on foreclosure sale of 
 a mortgage given by him thereon," and the amount re- 
 quired by statute to be given the debtor in cash on the 
 sale under execution of exempt property exceeding in 
 value the amount exempted by law,'^ are all exempt 
 from garnishment. 
 
 193; Cameron v. Pay, 55 Tex. 62; Reynolds v. Haines, 83 Iowa, 342, 
 49 N. W. 851; Puget Sound Bressed Beef & Packing Co. v. Jeffs 
 (Wash.) 39 Pac. 962; Ward v. Goggan, 4 Tex. Civ. App. 274, 23 S. W. 
 479; Jones v. Wliiteselle (Tex. Civ. App.) 29 S. W. 177; Cooney v. 
 Cooney, 65 Barb. (N. Y.) 525. CONTRA, Wooster v. Page, 54 N. H. 
 125, 20 Am. Rep. 128; Smith v. Ratcliif, 66 Miss. 683, 6 South. 460. 
 
 PROOF THAT PROPERTY WAS EXEMPT: The defendant 
 must prove that the property destroyed was exempt. Donnelly v. 
 O'Connor, 22 Minn. 309; Fletcher v. Staples (Minn.) 64 N. W. 1150; 
 Winsor v. Mcl^achlan (Wash.) 40 Pac. 727. 
 
 Insurance money to the extent of $60,000 will not be held all ex- 
 emiit. Swayne v. Chase (Tex. Civ. App.) 29 S. W. 418. 
 
 7 8 Kaiser v. Seaton, 62 Iowa, 463, 17 N. W. 664. 
 
 78 Mudge V. Lanning, 68 Iowa, 641, 27 N. W. 793; Crawford v. Car- 
 roll, 93 Tenn. 661, 27 S. W. 1010; Wylie v. Grundysen, 51 Minn. 
 360, 53 N. W. 805. 
 
 80 Below V. Robbins, 76 Wis. 6O0, 45 N. W. 416; Stebbius v. Peeler, 
 29 Vt. 289; Tillotson v. Wolcott, 48 N. Y. 189; Burke v. Hance, 76 
 Tex. 76, 13 S. W. 163; Howard v. Tandy, 79 Tex. 450, 15 S. W. 578. 
 
 A judgment recovered for the amount of exempt wages appro- 
 priated by garnishment in another state is exempt. Steele v. Mc- 
 Kerrihan (Pa. St.) 33 Atl. 570. 
 
 81 Brainard v. Simmons, 67 Iowa, 646, 25 N. W. 844. 
 
 82 Gery v. Bhrgood, 31 Pa. St. 329; Keyes v. Rines, 37 Vt. 260. 86 
 Am. Dec. 707; White v. Fulghum, 87 Tenn. 281, 10 S. W. .501; Cam- 
 eron V. Fay, 55 Tex. 58, 63; Jones v. Whiteselle (Tex. Civ. App.) 29 
 S. W. 177. 
 
 COMPUTATION OP TIME: Under a statute making $1,000 thus 
 (132) 
 
Ch. 4] STATUTORY EXEMPTIONS FROM GARNISHMENT. § 99 
 
 Personal Earnings and Pension Money Exempt 
 after Payment. 
 
 § 99. Some of the courts hold that these statutes 
 have performed their office when they have enabled 
 the laborer or pensioner to get his wages or pension 
 money into his own possession without let or hin- 
 drance. Under this interpretation, it has been held 
 that pension money deposited in a bank by the defend- 
 ant may be garnished/'' and that land purchased with 
 it is not exempt from execution.®* Other courts hold 
 that the statutes do not mean that the exemptionist 
 shall be entitled to the enjoyment of his exempt money 
 before he receives it, but not afterwards, and, there- 
 fore, that the same is exempt so long as it can be iden- 
 
 exempt for one year, held, that the time consumed in testing the 
 validity of the sale is no part of the year. Walsh v. Horine, 36 ID 
 238. 
 
 S3 ys'ebh V. Holt, 57 Iowa, 712, 11 N. W. 658; Cranz v. White, 27 
 Kan. 319, 41 Am. Rep. 408; Spelman v. Aldrich, 126 Mass. 113; 
 Rozelle v. Rhodes, 136 Pa. St. 129, 9 Atl. 160; Jardain v. Fairtou 
 Sav. Fund & Bldg. Ass'n, 44 N. ,T. Law, 376; Manchester v. Burns, 
 4r, N. H. 482; Friend v. Garcelon, 77 Me. 25, 52 Am. Rep. 739. 
 CONTRA, Crow v. Brown, 81 Iowa, 344, 46 N. W. 993. 
 
 84 McFarland v. Fish, 34 W. Va. 548, 12 S. E. 548; Robion v. 
 Walker, 82 Ky. 60, .50 Am. Rep. 878. Contra, Crow v. Brown, 81 
 loAva, 344, 40 N. W. 993. 
 
 DEED IN NAME OP^ WIFE: But if the pension check was used 
 to buy land, and the deed for the same taken in the wife's name, 
 the husband's creditors cannot have the deed set aside or reach the 
 land on execution, for then the pension was exempt, and the owner 
 conld give it away. Farmer v. Turner, 64 Iowa, 690, 21 N. W. 140; 
 Paurote v. Carr, 108 Ind. 123, 9 N. E. 350. 
 
 CROPS raised on such land are not exempt unless it is a home- 
 stead. Haefer v. Mullison, 90 Iowa, 372, 57 N. W. 893. 
 
 (133) 
 
§ 100 LAW OF GARNISHMENT. [Ch. 4 
 
 tified, whether in the bank or elsewhere/^ But, 
 whichever view is correct, it is generally admitted that 
 the exemption does not expire till the money has been 
 actually reduced to the personal possession of the ex- 
 emptionist.^' 
 
 Exemption Laws Have No Force Out of the State. 
 
 § 100. Exemption statutes have no extraterritorial 
 force. Therefore, the fact that the money or propertv 
 garnished would be exempt from garnishment in the 
 state where the owner lives, or where it was intended 
 to be paid or delivered, but for the garnishment pro- 
 ceedings, is no defense to the garnishment suit, and 
 will not discharge the garnishee; the law of the forum 
 governs." 
 
 ssRutter V. Shumway, 16 Colo. 95, 26 Pac. 321; Elliot v. Hall, 2 
 Idaho, 1142, 31 Pac. 796; Folscbow v. Werner, 51 Wis. 8-5, 7 N. W. 
 911; Yates County Nat. Bank v. Carpenter, 119 N. Y. 550, 23 N. E. 
 1108; Hayward v. Clark, 50 Vt. 612; Eckert v. McKee, 9 Bush (Ky.> 
 355; Crow v. Brown, 81 Iowa, 344, 46 N. W. 993. 
 
 88 Cox V. Bearden, 84 Ga. 304, 10 S. E. 627; Payne v. Gibson, 5 Lea 
 (Tenn.) 173; Eckert v. McKee, 9 Bush (Ky.) 355; Hayward v. 
 Clark, 50 Vt. 612; Cranz v. White, 27 Kan. 319, 41 Am. Rep. 408; 
 Webb V. Holt, 57 Iowa, 712, 11 N. W. 658. Contra. Cook v. Hol- 
 brook, 6 Allen, 572. 
 
 " First Nat. Bank v. Burch, 80 Mich. 242, 246, 45 N. W. 93; 
 Drake v. Lake Shore & M. S. Ry. Co., 69 Mich. 168, 37 N. W. 70; 
 Leiber v. Union Pac. Ry. Co., 49 Iowa, 688; Mooney v. Union Pac. 
 R. Co., 60 Iowa, 346, 14 N. W. 343; Lyon v. Callopy, 87 Iowa, 567, 54 N. 
 W. 476; Broadstreet v. Clark, 65 Iowa, 670, 22 N. W. 919; East Ten- 
 nessee, V. & G. Ry. Co. V. Kennedy, S3 Ala. 462, 3 South. 852; Bur- 
 lington & M. R. Co. V. Thompson, 31 Kan. 180, 1 Pac. 622; Wabash 
 Ry. Co. V. Dougan, 142 111. 248, 31 N. E. 596; Missouri Pac. Ry. Co. 
 V. Maltby, 34 Kan. 12.->, 8 Pac. 235; Morgan v. Neville, 74 Pa. St. 
 52; Carson y. Memphis & C. Ry. Co., 88 Tenn. 640, 13 S. W. 588; 
 (134) 
 
Ch. 4] STATUTORY EXEMPTIONS FROM GARNISHMENT. § 101 
 
 Limitation of Rule. 
 
 § 101. The rule just stated applies in all cases 
 where citizens and residents of any state bring suits in 
 the court of that state, and in favor of persons who are 
 not residents of the state, nor residents of the same 
 state with the defendant ; but where all the parties are 
 residents of the same foreign state, or where the real 
 plaintiff, though not the nominal plaintiff, is a resi- 
 dent of the same state with the defendant, and it ap- 
 pears that the action was brought for the purpose of 
 avoiding the exemption laws of the state of their domi- 
 cile, the exemption laws of the foreign state will be 
 recognized and enforced; for, although exemption stat- 
 utes have no force outside of the state where enacted, 
 yet the courts of one state, will not assist the citizens 
 of another state in avoiding the law of their domicile, 
 but will rather lend their aid in making the laws of 
 their sister states effectual so far as may be in the 
 states where enacted.^* 
 
 Bichelburger v. Pittsburg, C. & St. L. Ry. Co., 9 Am. & Eng. Ry. Cas. 
 158; Roche v. Rliode Island Ins. Ass'n, 2 111. App. 360. 
 
 Held, that the law of the place where the property is governs In 
 determining the exemption. Mason v. Beebee, 44 Fed. 556. 
 
 88 Turner v. Sioux City & P. Ry. Co., 19 Neb. 241, 27 N. W. 103; 
 Mason v. Beebee, 44 Fed. 556; Wright v. Chicago, B. & Q. Ry. Co., 
 19 Neb. 175, 27 N. W. 90; Missouri Pac. Ry. Co. v. Maltby, 34 
 Kan. 125, 8 Pac. 235; Drake v. Lake Shore & M. S. Ry. Co., 69 
 Mich. 168, 37 N. W. 70; Martin v. Central Vermont Ry. Co., 3 N. Y. 
 Supp. 82, 50 Hun, 347; Kestler v. Kern, 2 Ind. App. 488, 28 N. E. 726. 
 
 CONTRA: The supreme courts of some of the states have held 
 that though the action is brought in those states by residents of 
 another state, for the very purpose of avoiding the exemption laws 
 of the state where both plaintiff and defendant reside, yet the lex 
 fori will be applied; and thus the court of one state will be made the 
 instrument by means of which the citizen of another state is enabled 
 to shove by the law of his domicile, and set it at defiance, ilooney 
 
 (135) 
 
§ 102 LAW OF GARNISHMENT. [Ch. 4 
 
 Remedy of Persons Defrauded of Their Exemption. 
 
 May Recover from Creditor. 
 
 § 102. If a judgment creditor, directly or indirect- 
 ly, — no matter where or by what process, — appropri- 
 ates to the payment of a debt due him the exempt 
 wages of his debtor without such debtor's consent, 
 such creditor is liable to the debtor entitled to such 
 exemption to the full amount of the misappropriation. 
 This principle has been declared in the cases in which 
 the debtor has been deprived of his exemption by gar- 
 nishment proceedings instituted in another state for 
 that purpose.*" 
 
 V. Union Pac. Ry. Co., 60 Iowa, 346, 14 N. W. 343; Broadstreet v. 
 Clark, 65 Iowa, 670, 22 N. W. 919; Leonard v. Lawrence, 32 N. J. 
 Law. 355; Stevens v. Brown, 20 W. Va. 450; Wabash Ry. Co. v. 
 Dougan, 142 111. 248, 31 N. E. 596. 
 
 The decisions first above mentioned are criticised at length in Atch- 
 ison, T. & S. V. Ry. Co. V. Maggard (Colo. App.) 39 Pac. 985. 
 
 8 Albrecht v. Treitschke, 17 Neb. 205, 22 N. W. 418; Schaller v. 
 Kurtz, 25 Neb. 655, 41 N. W. 642; O'Connor v. Walter, 37 Neb. 207, 
 r.r, N. W. 807; Stark v. Bare, 39 Kan. 100, 17 Pac. 826; Kestler v. 
 Kern, 2 Ind. App. 488, 28 N. E. 726; Stewart v. Thomson (Ky.) 31 S. 
 ^y. 133. Compare Embree v. Hanna, 5 Johns. (N. Y.) 101, 103. Con- 
 tra, Uppinghouse v. Mundel, 103 Ind. 238, 2 N. E. 719; Harwell v. 
 Sharp, 85 Ga. 124, 11 S. B.-561. Compare Lawrence v. Batcheller, 131 
 Mass. 504. 
 
 STATUTE CONSTITUTIONAL: A recent Nebraska statute pro- 
 vides that it shall be unlawful for any one to assign any cause of ac- 
 tion for the purpose of having it collected in any other state, in viola- 
 tion of the exemption laws of the state, or to bring suit himself in any 
 otlier state for the same purpose, and makes the fact of garnishment 
 in another state of the exempt wages of the defendant prima facie 
 evidence of intent to avoid the exemption laws. This statute is consti- 
 tutional. Singer Manuf'g Co. v. Fleming, 39 Neb. 679, 58 N. W. 226; 
 Bishop V. Middleton, 43 Neb. 10, 61 N. W. 129. A like decision was 
 (136) 
 
Ch. 4] STATUTORY EXEMPTIONS FROM GARNISHMENT. § 103 
 
 May Enjoin Threatened Wrong. 
 
 § 103. And the courts of equity of the state where 
 the parties reside will, by injunction, restrain the pros- 
 ecution in another state of any suit brought there for 
 the purpose of avoiding the exemption laws of the 
 state where the parties both reside. °" And the court 
 granting the injunction will decree the return of what- 
 ever property has been taken by the defendant by such 
 garnishment proceedings."^ But a citizen prosecut- 
 ing an action in the courts of his own state to recover 
 a debt due from a nonresident cannot, when tempora- 
 rily found in the state where the debtor resides, be en- 
 joined from taking by garnishment a debt exempt in 
 the state where the debtor resides."^ 
 
 made on a similar statute in Pennsylvania. Sweeney v. Hunter, 145 
 Pa. St. 363, 22 Atl. 653. 
 
 Other statutes make it a criminal offense. State v. Dittmar, 120 Ind. 
 54, 388, 22 N. E. 88, 299. 
 
 Teager V. Landsley, 69 Iowa, 725, 27 N. W. 739; Hager v. Ad- 
 ams, 70 Iowa, 746, 30 N. W. 36; Mumper v. Wilson, 72 Iowa, 163, 33 
 N. W. 449; Zimmerman v. Franke, 34 Kan. 650, 9 Pac. 747, 749; Cole 
 V. Cunningham, 133 tT. S. 107, 10 Sup. Ct. 269; Snook v. Snetzer, 25 
 Ohio St. 516; Wilson v. Joseph, 107 Ind. 490, 8 N. E. 616; Griggs v. 
 Docter, 89 Wis. 161, 61 N. W. 761; Moton v. Hull, 77 Tex. 80, 13 S. 
 W. 849; Harwell v. Sharp, 85 Ga. 124, 11 S. B. 561; Keyser v. Rice, 
 47 Md. 203, 28 Am. Rep. 448; Dehon v. Foster, 4 AUen, 545; Engel 
 V. Seheuerman, 40 Ga. 206, 2 Am. Rep. 573; Wabash W. Ry. Co. v. 
 Seifert, 41 Mo. App. 35; Mcintosh v. Ogilvie, 4 Term. R. 193; Story, 
 Eq. Jur. § 899; Editorial in 23 Cent. Law J. 268. 
 
 01 Griggs V. Docter, 89 Wis. 161, 61 N. W. 761. 
 8 2 Griffith V. Langdale, 53 Ark. 71, 13 S. W. 733. 
 
 (137) 
 
§ 104 LAW OF GARM.-HMENT. [Ch. 4 
 
 Suits in Different States — Double Liability of Gar- 
 nishee. 
 
 Garnishment in Another State a Defense. 
 
 § 104. Inasmuch as exemption clauses in garnish- 
 ment laws have no operation except in the state which 
 enacted them, debtors and custodians, especially cor- 
 porations existing and doing business in several states 
 at the same time, are constantly liable to be sum- 
 moned and charged as garnishees in respect to proper- 
 ty in their possession, or debts owed by them which 
 would be exempt from garnishment in the state where 
 the owner of the property or the creditor of the gar- 
 nishee resides, but which are not exempt in the state 
 where the garnishment suit is brought. In such cases, 
 persons or corporations summoned as garnishees in a 
 suit against a nonresident defendant, and afterwards 
 sued by such defendant in the jurisdiction of his domi- 
 cile or elsewhere, may set up as a defense to such suit 
 the fact that they have been summoned as garnishees 
 for the demand, and that the suit is still pending 
 against them as such in the foreign jurisdiction,"' or 
 that they have there been compelled to pay the same 
 on a judgment against them as garnishees."* 
 
 8 3 Baltimore & O. Ry. Co. v. May, 25 Ohio St. 347; Connor v. Han- 
 over Ins. Co., 28 Fed. 549; Lynch v. Hartford Fire Ins. Co., 17 Fed. 
 627; Bmbree v. Hanna, 5 Johns. (N. Y.) 101. CONTRA, Illinois Cent. 
 Ry. Co. V. Smith, 70 Miss. 344, 12 South. 461; Traders' Ins. Co. v. 
 Chase (Tex. Civ. App.) 31 S. W. 1103; McCarty v. The City of New 
 Bedford, 4 Fed. 818, 831; Missouri Pac. Ry. Co. v. Sharitt, 43 Kan. 
 375, 23 Pac. 430. 
 
 But see the very able dissenting opinion of Horton, C. J., in the last 
 case cited. 
 
 04 Chicago, B. & Q. Ry. Co. v. Moore, 31 Neb. 629, 48 N. W. 475; 
 (138) 
 
Ch. 4] STATUTORY EXEMPTIONS FEOM GARNISHMENT. § 107 
 
 Whether Ground for Continuance or Plea in Bar. 
 
 § 105. If the garnishment suit is still pending, such 
 plea will operate as a stay of the proceedings till it 
 is determined; and if judgment has been rendered 
 against the garnishee, and paid, it will operate as an 
 absolute defense pro tanto.°° 
 
 Pleading Exemption in Other State. 
 
 § 106. Provided the garnishee has properly notified 
 his creditor of the commencement of such garnishment 
 proceedings, and brought to the attention of the court 
 therein all the facts which he is allowed to urge as a 
 defense in favor of the defendant, or which would be 
 of any avail, *" and if it appears that the offer of any 
 particular defense would have been of no avail, the 
 failure to make it is of no importance." 
 
 Extent and Reason of Protection. 
 
 § 107. This rule will be applied although it ap- 
 pears that the garnishment suit in the foreign court 
 
 Morgan v. Neville, 74 Pa. St. 52; Moore v. Chicago, R. I. & P. Ey. 
 Co., 43 Iowa, 385; The City of New Bedford, 20 Fed. 57; Telles v. 
 Lynde, 47 Fed. 912; Carson v. Memphis & C. Ry. Co., 88 Tenn. 646, 
 13 South. 588; East Tennessee, V. & G. Ry. Co. v. Kennedy, 83 Ala. 
 462, 3 South. 852; Eichelburger v. Pittsburg, C. & St. L. Ry. Co., S) 
 Am. & Eng. Ey. Cas. 158. 
 
 9 5 See post, §§ 199, 202. 
 
 8 6 Pierce v. Chicago & N. W. Ry. Co., 36 Wis. 283; Terra Haute & 
 I. Ry. Co. V. Baker, 122 Ind. 433, 24 N. E. 83. 
 
 97 Chicago, B. & Q. Ry. Co. v. Moore, 31 Neb. 629, 48 N. W. 475; 
 Carson v. Memphis & C. Ry. Co., 88 Tenn. 646, 13 S. W. 588; Moore 
 V. Chicago, R. I. & P. Ry. Co., 43 Iowa, 387; East Tennessee, V. & G. 
 Ry. Co. V. Kennedy, 83 Ala. 462, 3 South. 852; Eichelburger v. Pitts- 
 burg, C. & St. L. Ry. Co., 9 Am. & Eng. Ry. Cas. 158; and dissenting 
 opinion of Horton, C. J., In Missouri Pac. Ry. Co. v. Sharitt, 43 Kan. 
 375, 23 Pac. 4.34. 
 
 (139) 
 
§ 107 LAW OF GARNISHMENT. [Ch. 4 
 
 was prosecuted by a resident of the state where the 
 last action was brought, and for the sole purpose of 
 avoiding the exemption laws, for the reason that full 
 faith and credit must be given to judgments of sister 
 states; "^ and an honest debtor should not be required 
 to pay his debt twice when he is not in fault."" On the 
 other hand, the courtentertaining the garnishment suit 
 will discharge the garnishee upon his proving that aft- 
 er he was served the principal defendant commenced 
 an action against him in another jurisdiction, and re- 
 covered final judgment against him in such suit, in the 
 face of a full defense founded upon such garnishment 
 proceedings. The discharge of the garnishee in such 
 cases is not because the court entertaining the -garnish- 
 ment proceedings recognizes the judgment of the for- 
 eign court as correct, but because a tribunal having 
 jurisdiction of the parties, and therefore power to com- 
 pel obedience to its decisions, has passed judgment 
 against the garnishee, without his fault, and has com- 
 pelled, or will compel, payment of it.^°° 
 
 9 8 Const. U. S. art. 4, § 1. 
 
 so Baltimore & O. Ry. Co. v. May, 25 Oliio St. 347; Morgan v. Ne- 
 ville, 74 Pa. St. 52; Chicago, B. & Q. Ry. Co. v. Moore, 31 Neb. 629, 
 48 N. W. 475; Compare Baylies v. Houghton, 15 Vt. 626, 630; Eddy 
 V. O'Hara, 132 Mass. 56. Contra, Illinois Cent. Ry. Co. v. Smith, 70 
 Miss. 344, 12 South. 461; Central Vermont Ry. Co. v. Martin, 50 Hun, 
 347, 3 N. Y. Supp. 82. 
 
 100 Eddy v. O'Hara, 132 Mass. 56, Involved this question only, 
 and the opinion written by Chief Justice Gray declares the doctrine 
 above stated. See, also. Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 
 400, 8 Am. Dee. 597. 
 
 In a recent case a railroad company summoned as garnishee in 
 Iowa, and sought to be charged for wages earned and payable in 
 Kansas, set up as a defense that the wages were exempt to the 
 defendant in Kansas, where he resided, and that after the garnish- 
 ment was instituted he had sued the garnishee therefor in a Kan- 
 (140) 
 
Ch, 4] STATUTORY EXEMPTIONS FEOM GARNISHMENT. § 107 
 
 sas court, which, following a former decision of the supreme court 
 of that state, rendered Judgment in favor of the plaintiff therein, 
 notwithstanding a full defense founded on the garnishment pro- 
 ceedings; that the garnishee had appealed from such judgment; 
 and that the appeal was still pending. The Iowa court refused to 
 recognize the proceedings in the Kansas court, and ailirmed the 
 judgment of the lower court charging the garnishee. Willard v. 
 Sturm (Iowa) 65 N. W. 847. The court did not refer to the deci- 
 sions above cited, but held the proceedings in Kansas void because 
 the suit in Iowa was first instituted. 
 
 (141) 
 
§ 108 LAW OF GARNISHMENT. [Ch. 5 
 
 CHAPTER V, 
 
 DEBTS AND PROPERTY WHICH ARE SUBJECT TO GAR- 
 NISHMENT. 
 
 108. Corporate Stock— Not Liable to Creditors except by Statute. 
 
 100. Of Foreign Coi-porations. 
 
 110. Unrecorded Transfer. 
 
 111. Garnishable liy Special Statute. 
 
 112. Stockholders' Liability for Unpaid Installments— After Call. 
 
 113. Before Call. 
 
 114. Call not Necessary. 
 
 115. Obligations not Payable in Money— When Garnishable. 
 
 116. Nature of .Judgment upon. 
 
 117. Not Garnishable as "Debt." 
 
 118. Contingent Debts— The Rule. 
 
 119. Insurance Money before Proof of Loss. 
 
 120. Annuity and Rent not Due. 
 
 121. ■ Other Illustrations. 
 
 122. Statutes Making Contingent Debts Garnishable. 
 
 123. Limitations of Rule. 
 
 124. Independent Promises. 
 
 12.3. Sales for Cash — Sales ReseiTing Title Till Payment. 
 
 126. Absolute Debts before JIaturity. 
 
 127. Obligations for Payment of Which Defendant Holds Security. 
 
 128. Debts for Which Garnishee has Given His Note — Negotiabil- 
 
 ity and Rights of Holder Determined. 
 
 129. Nonnegotiable Notes. 
 
 130. Notes in Possession of Maker. 
 
 131. Statutes Making All Note Debts Garnishable as Simple 
 
 Debts. 
 
 132. Overruled Decisions to Same Effect. 
 
 133. Debts Evidenced by Notes in Circulation— How Gar- 
 
 nishable. 
 
 134. Debts Evidenced by Notes Overdue. 
 
 135. Note must be Surrendered or Bond Given. 
 
 136. Requiring Defendant to Hold or Produce. 
 
 137. Colorable Indorsements and Holders with Notice. 
 
 137a. Debts to Pay Which Check has been Given. 
 
 (142) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 108 
 
 I 138. Interest Due on Indebtedness— While Payment is Prevented 
 by Process. 
 
 139. Wlien Garnisliee Seeks to Profit by the Process. 
 
 140. Investing Funds— Interest as Damages. 
 
 141. Plaintiff Stands in Defendant's Shoes. 
 
 142. Liability Over to Defendant after Garnishment. 
 
 143. Demands in Suit or .Judgment— Not Garnishable after Issue 
 
 Joined. 
 
 144. Garnishable at Any Stage of Proceedings. 
 
 145. Suit or Judgment and Garnishment must be before 
 
 Same Court. 
 
 146. How the Reason I^imits the Rule. 
 
 147. Payment under Garnishment in Anotlier State. 
 
 148. Rights of Action for Torts or for Damages Unliquidated- 
 
 Demands not Ascertainable by Computation. 
 
 149. Insurance before Adjustment of Loss. 
 
 150. Other Illustrations. 
 
 151. Usury— Breach of Warranty. 
 
 152. EfCect of Verdict before Judgment— Appeals. 
 
 153. Equitable Claims— Whether Garnishment is a Legal or an 
 
 Equitable Proceeding. 
 
 154. Equitable Rights not Garnishable under Proceeding 
 
 at Law. 
 
 155. Debts and Property Belonging to Part of the Defendants. 
 
 156. Debts and Property Belonging to the Defendant and Others 
 
 Jointly — Individual I'artners Have No Interest in 
 Debts Due Partnership. 
 
 I."i7. Debts Due Partnerships not Garnishable in Suits 
 
 against Individual Partners. 
 
 1."p8. Corporeal Property of Partnerships Garnishable in 
 
 Such Suits. 
 
 159. Partnership Credits or Property Garnishable Indis- 
 criminately in Such Suits. % 
 
 IGO. Interest of Partner after Dissolution and Accounting. 
 
 161. Suits against Individual for Firm Debts. 
 
 162. Debts Due Joint Creditors not Partners. 
 
 1(;3. Choses in Action in the Garnishee's Possession — Not Liable to 
 Common-Law Process. 
 
 164. Not within the Terms of Garnishment Statutes. 
 
 165. When Subject to Execution are Garnishable. 
 
 166. Immaterial to Whom Payable. 
 
 (143) 
 
§ 109 LAW OF GARNISHMENT. [Ch. 5 
 
 § 167. Choses in Action in the Garnishee's Possession— Right to 
 
 Collect and Appropriate— Judgment Records— Account 
 
 Books. 
 16S. The Written Evidence must be Connected with the 
 
 Debt. 
 1(J9. Mortgaged, Pledged, and Incumbered Property— Who Holds 
 
 Legal Title. 
 
 170. Mortgagor's Equitable Interest not Garnishable. 
 
 171. Mortgagor's Equitable Interest Garnishable. 
 
 172. Nature of Judgment for Mortgagor's Interest. 
 
 173. Duties of Mortgagee as Garnishee. 
 
 174. Plaintiff Only Acquires Defendant's Interest. 
 
 175. Actual Possession— Double Security— Right of Posses- 
 
 sion. 
 
 176. Mortgagee's Rights not Increased or Impaired — Future 
 
 Advances. 
 
 177. Real Property. 
 
 Corporate Stock. 
 
 Not Liable to Creditors except by Statute. 
 
 § 108. At common law, shares of stock in corpora- 
 tions were not subject either to execution or attach- 
 ment,^ but are made subject to both by statute in most 
 of the states. It is held that these statutes must be 
 substantially complied with, or the proceedings will 
 be void.^ 
 
 Of Foreign Corporations. 
 
 § 109. Under these statutes, stock cannot be at- 
 tached unless the corporation is incorporated in the 
 state where the suit is brought, though it has its prin- 
 cipal office there.' 
 
 1 Drake, Attachm. § 244; Freem. Ex'ns, § 262a; 23 Am. & Eng. 
 Enc. Law, 622. 
 
 = Morton v. Grafflin, 68 Md. 545, 13 Atl. 341; Blair v. Compton, 33 
 Mich. 413, 425; Howe v. Starkweather, 17 Mass. 240. 
 
 3 Plimpton v. Bigelow, 93 N. Y. 592; Armour Bros. Banking Co. 
 (144) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 110 
 
 Unrecorded Transfer. 
 
 § 110. Where it is provided by statute, as it is in 
 most of the states, that transfers of stock shall be 
 made on the books of the company, an attachment of 
 the stock in a suit against the person in whose name 
 the stock stands on these books will prevail over a 
 previous unrecorded transfer by him to another for a 
 valuable consideration.* And, on the other hand, the 
 equitable interest of one to whom the stock has been 
 sold, but who has not yet caused the transfer to be re- 
 corded, may be attached ; ° and so may the interest of 
 one who has caused a transfer of his stocks to another 
 
 V. St. Louis Nat. Bank, 113 Mo. 12, 20 S. W. 690; Ireland v. Globe 
 Milling & Reduction Co. (R. I.) 32 Atl. 921; Morton v. Grafflin, 68 
 Md. .545, 13 Atl. 341; Winslow v. Fletcher, 53 Conn. 390, 4 Atl. 250; 
 Smith V. Downey, 8 Ind. App. 179, 34 N. B. 823, and 35 N. E. 568. 
 CONTRA, Young V. South Tredegar Iron Co., 85 Tenn. 189, 2 S. W. 
 202; Puget Sound Nat. Bank v. Mather (Minn.) 62 N. W. 396. 
 
 "The attachment process is a proceeding in rem, and the matter and 
 thing attached must be in the power and jurisdiction of the court. 
 You might as well, by an ideal and constructive service on the per- 
 son of the defendant resident in Mississippi, summon him to appear 
 in our court, as to attach him to compel an appearance by attach- 
 ing his bank stock in a bank located and established by law In Mis- 
 sissippi." Christmas v. Biddle, 13 Pa. St. 223. 
 
 ■1 Ft. Madison Lumber Co. v. Batavian Bank, 71 Iowa, 270, 32 N. 
 W. 336; Fisher v. President, etc., of Essex Bank, 5 Gray, 373; Skowhe- 
 gan Bank v. Cutler, 49 Me. 315; Sabin v. Bank of Woodstock, 21 Vt. 
 353; Cheever v. Meyer, 52 Vt. 66; People's Bank v. Gridley, 91 111. 457; 
 Northrop v. Newtown & B. Turnpike Co., 3 Conn. 544; Application 
 of Murphy, 51 Wis. 519, 8 N. W. 419; State Ins. Co. v. Sax, 2 
 Tenn. Ch. 507. Contra, Broadway Bank v. McElrath, 13 N. J. Eq. 
 24; Farmers' Nat. Gold Bank v. Wilson, 58 Cal. 600; Black v. Zach- 
 arie, 3 How. 483. 
 
 5 Middletown Sav. Bank v. Jarvis, 33 Conn. 372; Foster v. Potter, 
 37 Mo. 525. Contra, Lippitt v. American Wood-Paper Co., 15 R. 
 I. 141, 23 Atl. 111. 
 
 LAW GARNISH. — 10 (145) 
 
§ 111 LAW OP GAHNISHMENT. [Oh. 5 
 
 to be entered upon the books of the company for the 
 purpose of defrauding his creditors, while he retains 
 the real ownership." 
 
 Garnishable by Special Statute. 
 
 § 111. Some of the garnishment statutes expressly 
 declare that, when the garnishee is a corporation, it 
 shall answer for any stock therein held by or for the 
 benefit of the defendant; ' and under these the inter- 
 est of the defendant may be reached, though he has 
 caused the certificates to be issued in the name of a 
 third person.** There are decisions which seem to sus- 
 tain judgments against corporations as garnishees by 
 reason of the stock in them owned by the defendant 
 without such statutes,^ but the weight of authority is 
 against such a holding." As to the right to charge 
 
 e Beck-vvith v. Burrough, 14 R. I. 366, 51 Am. Rep. 392; National 
 Bank of New London v. Late Shore & M. S. Ry. Co., 21 Ohio St. 221; 
 Curtis V. Stanver, 3(j N. .T. Law, 304. 
 
 7 Norton V. Norton, 4.!^ Ohio St. 509, 3 N. E. 348; Harrell v. Mexico 
 Cattle Co., 73 Tex. 612. 11 S. W. 863; Smith v. Traders' Nat. Bank, 
 74 Tex. 457, 12 S. W. 113; Waco State Bank v. Stephenson Manuf'g 
 Co., 4 Tex. Civ. App. 137, 23 S. W. 234. 
 
 Held that, to obtain a valid lien, the statutory course must be pur- 
 sued. Mooar V. Walker, 40 Iowa, 164; Younkin v. Collier, 47 Fed. 
 571. 
 
 s National Bank of New London v. Lake Shore & M. S. Ry. Co., 21 
 Ohio St. 221. 
 
 9 Atwood V. Dumas, 149 Mass. 167, 21 N. E. 236; Chesapeake Ry. 
 Co. V. Paine, 29 Grat. (Va.) 502; Shenandoah Val. Ry. Co. v. Griffith, 
 76 Va. 913, 13 Am. & Eng. Ry. Cas. 120. 
 
 10 Planters' & Merchants' Bank v. Leavens, 4 Ala. 753; Ross v. 
 Ross, 25 Ga. 297; Nashville Bank v. Ragsdale, Peck (Tenn.) 296; 
 IMimpton V. Bigelow, 'J3 N. Y. 592; Armour Bros. Banking Co. v. 
 St. Louis Nat. Bank, 113 Mo. 12, 20 S. AV. 090; Netter v. Chicago 
 Board of Trade, 12 111. App. 607. 
 
 A summons issued to a person who is secretary of the corporation 
 (Utt) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. §113 
 
 the garnishee for certificates of stock in his possession 
 belonging to the defendant, see "Choses in Action 
 
 V 11 
 
 Stockholders' Liability for Unpaid Installments. 
 
 After Call. 
 
 § 112. When a subscriber for stock in a corpora- 
 tion is in default for installments for which calls have 
 been made, he stands in the same attitude as any other 
 debtor of the corporation, and may be charged as gar- 
 nishee therefor in suits against it.^^ For this purpose 
 it is not essential that the call be made by the directors 
 or other officers of the company; a call properly made 
 by an officer appointed by the court for that purpose 
 is sufficient.^' 
 
 Before Call. 
 
 § 113. Some of the courts hold that unpaid install- 
 ments of stock, for which the company could not sue 
 because no call has been made therefor, cannot be 
 reached by garnishment in suits against it, for the rea- 
 son that the plaintiff occupies against the garnishee 
 
 would not attnoli tlie stock in the company owned by the defend- 
 ant, for it is not a garnishment of the company, though he so un- 
 derstood it. Mooar v. Walker, 46 Iowa, 164. 
 
 11 Post, §§ 163-168. 
 
 12 Hannah v. Moberly Bank, 67 Mo. 678; Simpson v. Reynolds, 71 
 Mo. 594; CucuUu y. Union Ins. Co., 2 Rob. (La.) 571; P'auU v. Alaska 
 Gold & Silver Min. Co., 14 Fed. 657, 8 Sawy. 420; Davis v. Montgom- 
 ery Furnace & Chemical Co., 101 Ala. 127, 8 South. 496; Joseph v. 
 Davis (Ala.) 10 South. 830; Dean v. Biggs, 25 Hun (N. Y.) 122; Meints 
 V. East St. Louis Co-op. Rail Mill Co., 89 111. 48. 
 
 The property of a corporation in the hands of one of its stock- 
 holders may be reached by garnishment against him. Hughes v. 
 •Oregonian Ry. Co., 11 Or. 158, 2 Pac. 94. 
 
 13 Hays V. Lycoming Fire Ins. Co., 99 Pa. St. 621. 
 
 (147) 
 
§ 115 LAW OF GARNISH M.CNT. [Ch. 5 
 
 the position of the defendant, and acquires his rights 
 only.^* 
 
 Gall not Necessary. 
 
 § 114. Other courts recognize the general excep- 
 tion to the rule just stated that the absence of a de- 
 mand without which the defendant could not sue the 
 garnishee is no defense to the garnishment/^ observ- 
 ing that the obligation of the stockholder arises out of 
 the act of subscribing, and continues from that time, 
 and not from the call.^^ 
 
 Obligations not Payable in Money. 
 
 When Garnisliable. 
 
 § 115. Besides property belonging to the defend- 
 ant, and "debts," properly so called, due him, being 
 demands payable in money, many of the statutes, ei- 
 ther by express enumeration or by reason of the- broad 
 
 / 
 
 14 Bingham v. Rushing, 5 Ala. 403; Teague v. Le Grand, So Ala. 
 493, 5 South. 287; Brown v. Union Ins. Co., 3 La. Ann. 177; Mc- 
 Kelvey v. Crockett, 18 Nev. 238, 2 Pac. 380; Universal Fire Ins. Co. 
 V. Tabor, 16 Colo. 531, 27 Pac. 890; Seymour v. Sturgess, 20 N. Y. 134. 
 
 Stockholders who have received fully-paid stock for property at a 
 fictitious valuation cannot be charged as garnishees for the difCerence 
 between the real and fictitious values. The creditor's remedy is in 
 equity. Nicrosi v. Irvine, 102 Ala. 648, 15 South. 429. 
 
 15 See ante, § 46. 
 
 le In re Glenn Iron Works, 17 Fed. 324; Scott v. Windham (Miss.) 
 16 South. 206. Compare Peterson v. Sinclair, 83 Pa. St. 230; Lang- 
 ford V. Ottumwa Water-Power Co., 59 Iowa, 283, 13 N. W. 303. 
 
 This is so by statute in Illinois (Kurd's St. 1891, c. 32, § 8). Coal- 
 fields Co. V. Peck, 98 111. 139. 
 
 A stipulation in the contract of subscription that it shall be payable 
 only on the call of the company cannot be permitted to defeat the 
 rights of creditors. Curry v. Woodward, 53 Ala. 371. 
 (148) 
 
Ch. 5j PROPEETY SUBJECT TO GARNISHMENT. § 117 
 
 general terms employed in them, render the garnishee ' 
 chargeable for certain obligations not payable in 
 money." 
 
 Nature of Judgment upon. 
 
 § 116. From the general principle that the gar- 
 nishee cannot be deprived of any right to which he is 
 entitled against the defendant, it follows that he can- 
 not be held/ to pay in any other mode, or upon any 
 other tern^i;^ or conditions, than those provided in the 
 contract .,ander which he is bound to the defendant; 
 and therefore no absolute money judgment can be ren- 
 dered against him in any such cases, but he must have 
 an opportunity to pay according to his contract, upon 
 failure to do which he may be compelled to pay as on 
 a money demand. ^^ 
 
 Not Garnishable as " Debt. " 
 
 § 117. It has been held that, when a garnishee is 
 bound to perform work and labor for the defendant, 
 the obligation is a credit tor which he may be char- 
 ged; " but the term "credit" is generally understood 
 
 " Rice V. Talmadge, 20 Vt. 378; Bartlett v. Wcod, 32 Vt. 372; Na- 
 tional Union Bank v. Brainerd, 65 Vt. 291, 26 Atl. 723; Comstocli v. 
 Farnum, 2 Mass. 96; Clark v. King, Id. 524; Clark v. Brewer, 6 Gray, 
 320. 
 
 IS Stadler v. Parmlee, 14 Iowa, 175; Ransom v. Stanberry, 22 Iowa, 
 334; Smith v. Davis, 1 Wis. 447, 60 Am. Dec. 390; Rasmussen v. Me- 
 Cabe, 43 Wis. 471; Cherry v. Hooper, 7 Jones (N. C.) 82; Bartlett v. 
 Wood, 32 Vt. 372; Union Nat. Bank v. Brainerd, 65 Vt. 291, 26 Atl. 
 723; Marshall v. Grand Gulf Railway & Banking Co., 5 La. Ann. 360; 
 Puller V. O'Brien, 121 Mass. 422; Blackburn v. Davidson. 7 B. Mon. 
 (Ky.) 101; Jennings v. Summers, 8 Miss. 453; Boyd v. Brown, 120 
 Ind. 393, 22 N. E. 249; Dickinson v. Dickinson, 59 Vt. 678, 10 Atl. 821. 
 
 1!) Louderman \. Wilson, 2 Har. & J. (Md.) 379. 
 
 One buying property of the defendant estimated to be worth $300, 
 
 (U9) 
 
§ 117 I.AW OF GARNISHMENT. [Ch. 5 
 
 to be tlie correlative of "debt" in this sense, and it 
 may be considered as settled that only such demands 
 as would sustain an action of debt or indebitatus as- 
 sumpsit by the defendant are debts within the mean- 
 ing of the garnishment statutes. Tt has accordingly 
 been held that the garnishee cannot be charged as the 
 debtor of the defendant because of any demand which 
 the latter may have against him, and which is by its 
 terms payable in "store accounts," ^° or "notes," " or 
 "saddlery," -- or "castings and iron," " or "cotton," ^* 
 or "board," "'" or "whisky," ^^ or "support of the de- 
 fendant during life," " or "mason's work and mate- 
 rials," ^^ or "services as attorneys," ^' unless at the 
 time of the garnishment it had been converted into a 
 money demand by the failure of the garnishee to per- 
 form his contract according to its terms.'" 
 
 for which he agreed to pay the expenses of the defendant to Cali- 
 fornia, may be eharsed therefor. Moeller v. Quarl'ier, 14 111. 280. 
 
 2 Smith V. Chapman, Port. (Ali. ) 365; Deaver v. Keith, 5 Ired. 
 (N. C.) 374. 
 
 21 Mims V. Parker, 1 Ala. 421; Willard v. Butler, 14 Pick. 550; 
 Fuller V. O'Brien, 121 Mass. 422. 
 
 22 Blair v. Rhodes, 5 Ala. 648. 
 2 3 Nesbitt V. Ware, 30 Ala. 68. 
 
 2 4 .Tones v. Crews, 64 Ala. 368. 
 
 2 Aldrich v. Brooks, 25 N. H. 241; Peebles v. Meeds, 96 Pa. St. 150. 
 
 26 Jlcilinn V. Hall, 2 Overt. (Tenn.) 328; Weil v. Tyler, 38 Mo. 
 545, 43 Mo. 581, and 90 Am. Dec. 441. 
 
 2 7 Dickinson v. Dickinson, 59 Vt. 678, 10 Atl. 821; BrigRS v. Beach, 
 18 Vt. 115. 
 
 28 Wrisley v. Geyer, 4 Mass. 102; Boyd v. Brown, 120 Ind. 393, 22 
 N. E. 249. Compare Hurst v. Home Protection Fire Ins. Co., 81 Ala. 
 174, 1 South. 209. 
 
 29 Boyd V. Brown, 120 Ind. 393, 22 N. E. 249. 
 
 8 Weil V. Tyler, 38 Mo. 545, 90 Am. Dec. 441; Blackburn v. David- 
 son, 7 B. Mon. (Ky.) 101. 
 (150) 
 
Ch. o] PliOPEKTY SUBJECT TO GARNISHMEMT. § 119 
 
 Contingent Debts. 
 
 The Rule. 
 
 § 118. A debt to be garnishable must be owing ab- 
 solutely and beyond contingency at the time the gar- 
 nishment summons is served. ^^ The decisions on this 
 subject are too numerous to be reviewed separately, 
 but a few classes of cases will serve as explanatory of 
 the rule stated. 
 
 Insurance Money before Proof of Loss. 
 
 § 119. It has been held that, when the liability of 
 a company to pay for a loss under an insurance policy 
 is conditioned upon making proof of the loss, ""he com- 
 pany cannot be charged as garnishee of the policy 
 holder upon a summons served upon it after the loss, 
 and before the required proof of the same has been 
 made; for, although the condition upon which the lia- 
 
 81 Wentworth v. Whittemore, 1 Mass. 471; Davis v. Ham, 3 Mass. 
 33; I'^rothingham v. Haley, Id. 68; Willard v. Sheaf e, 4 Mass. 23-5; 
 Wood V. Partridge, 11 Mass. 488; Grant v. Shaw, 16 Mass. 341, 8 Am. 
 Dec. 142; Williams v. Marston, 3 Pick. 65; Guild v. Holbrook, 11 
 Pick. 101; FanlkDer v. Waters, Id. 473; Rich v. Waters, 22 Pick. .563; 
 Hancock v. Colyer, 99 Mass. 187, 96 Am. Dec. 730; Wood v. Buxton, 
 108 Mass. 102; Beverstock v. Brown, 157 Mass. 565, 32 N. E. 901; 
 Roberts v. Drinkard, 3 Mete. (Ky.) 309; Haven v. Wentworth, 2 N, 
 H. 93; Clement v. Clement, 19 N. H. 460; Burke v. Whitcomb, 13 
 Vt. 421; Morey v. Sheltus, 47 Vt. 342; Sayward v. Drew, 6 Me. 263; 
 Woodard v. Herbert, 24 Me. 358; Cutter v. Perkins, 47 Me. 557; 
 Bishop v. Young, 17 Wis. 46; Foster v. Singer, 69 Wis. 392, 3t N. W. 
 395; Strauss v. Railway Co., 7 W. Va. 368; Baltimore & O. Ry. Co, 
 V. Gallahue, 14 Grat. (Va.) 563; Russell v. Clingan, 33 Miss. 535; 
 Maduel v. Mousseaux, 29 La. Ann. 228; Lackett v. Rumhaugh, 45 
 Fed. 23; Garland v. Sperling (N. M.) 30 Pac. 925, 81 Pac. 499. 
 
 (151) 
 
§ 121 LAW OF GARNISHMENT. [Ch. 5 
 
 bility arises has happened, there is still another condi- 
 tion upon which it may be defeated/^ 
 
 Annuity and Rent not Due. 
 
 § 120. On a promise to pay a certain sum on a cer- 
 tain day in each year as long as the annuitant shall 
 live, and at the same rate for any part of the year, the 
 Ijromisor can be charged as garnishee of the annuitant 
 only for the amount which had accrued before the 
 garnishment was served, for it is uncertain that she 
 will live longer.^^ It has been held that a tenant can 
 be charged as garnishee of his landlord only for the 
 rent accrued under his lease, and not for future rent, 
 since the continuance of the relation is uncertain.^* 
 
 Other Illustrations. 
 
 § 121. When the right of a sailor to demand wages 
 depends upon the completion of the voyage in which 
 they are earned, it was held that the shipowners could 
 not be charged as his garnishees for such wages upon 
 a summons served while the vessel was aground just 
 
 3 2 Davis V. Davis, 49 Me. 282; Nickerson v. Nicliersoii, 80 Me. 100, 
 12 Atl. 880; Gies v. Beehtner, 12 Minn. 279 (Gil. 183); Dowlins v. 
 Lancashire Ins. Co., 89 Wis. 96, 61 N. W. 76; Lovejoy v. Hartford 
 Tire Ins. Co., 11 Fed. 63; Martz v. Detroit Fire & Marine Ins. Co., 28 
 Midi. 201. Contra, Plienix Ins. Co. v. Willis, 70 Tex. 12, 6 S. W. -825; 
 Girard Fire Ins. Co. v. Field, 45 Pa. St. 129. 
 
 "Whether proof of loss has been waived is a question for the jury. 
 Nickerson v. Nickerson, supra. 
 
 3 3 Sabin v. Cooper, 15 Gray, .532; Easterly v. Keney, 36 Conn. 18; 
 Say ward v. Drew, 6 Me. 203; Dickinson v. Dickinson, 59 Vt. 678, 10 
 Atl. 821. Contra, Red v. Powers, 69 aiiss. 242, 13 South. 586. 
 
 3 4 Thorp V. Preston, 42 Mich. 511, 4 N. W. 227; Ordway v. Eem- 
 rngton, 12 R. I. 339, 34 Am. Rep. 646; Blankenship & Blake Co. v. 
 Moore (Tex. App.) 16 S. "VV. 780; Busbaum v. Dunham, 51 111. App. 
 240. Contra, Rowell V. Felker, 54 Yt. 529. 
 (152) 
 
Ch. 5] PEOPEETY SUBJECT TO GAENISHMENT. § 122 
 
 outside of the harbor of her destination; for, if she had 
 been burned or lost there, they would not be indebted 
 to the defendant. ^° When a bank takes a draft for 
 collection, it does not become the debtor of the depos- 
 itor till it is collected, in the absence of contract to the 
 contrary; and whether it will ever collect the money 
 is contingent." When the ga,rnishee is bound to pay 
 only after he receives the money from a specified 
 source, there is no debt, properly speaking, till he re- 
 ceives such money, and the case is unlike that of a 
 debt liable to be defeated by a condition subsequent.'^ 
 
 Statutes Making Contingent Debts Garnishable. 
 
 § 122. In Michigan it is provided by statute that 
 the garnishee may be charged "on any contingent right • 
 or claim against him in favor of the principal defend- 
 ant." There a case arose in which the defendant had 
 contracted to build a church for the garnishee, to be 
 paid for on estimates as the work progressed, but 10 
 per cent, of the estimates was to be retained as a guar- 
 anty that the defendant would perform his contract. 
 The plaintiff claimed the right to charge the garnishee 
 for anything that might subsequently become owing 
 for work done under the contract. The court, by 
 Oooley, J., said: "To permit garnishment upon such 
 claims would be a most unwarrantable interference 
 with the contracts of third parties, and must in many 
 cases deprive them of substantial rights. * « * jf 
 there is a contingent claim here, so there is when a la- 
 ss Taber v. Nye, 12 Pick. 105. For further cases similar to this, see 
 ante, § 63. 
 
 3 6 Moors V. Goddard, 147 Mass. 287, 17 N. E. 532. 
 3 7 Sand-Blast File-Sharpening Co. v. Parsons, 54 Conn. 310, 7 Atl. 
 716. 
 
 (153) 
 
§ 123 LAW OF GARNISHMENT. [Ch. 5 
 
 borer hires out for a year, to be paid at the end of the 
 year; and his creditors may garnish the claim as soon 
 as the hiring takes place. It would be a safe assump- 
 tion that very little labor would be done under the 
 hiring after the claim was garnished. Whatever, if 
 anj'thing, was due at the time the process was served 
 in this case, the plaintiffs were entitled to reach. The 
 ten per cent, kept back as security for final perform- 
 ance might, perhaps, be considered a sum already con- 
 tingently earned." ^' 
 
 Limitations of Rule. 
 
 § 123. This principle has no application to cases in 
 Avhich a liability on the part of the garnishee to the de- 
 fendant for debt or property actually exists, but which 
 is in dispute between them, or when the contingency 
 only affects the garnishee's liability on a contract 
 Avhich he has actually made, but the force or effect of 
 which is in litigation; "* nor to cases in which only the 
 amount of the liability is uncertain or controverted; *" 
 
 8 8 Webber v. Bolte, 51 Mich. 113, 16 N. W. 257. 
 
 CONTRA: Upon similar facts, the supreme court of Illinois af- 
 firmed a .I'udgment against the garnishee for the amount earned at 
 the time the summons was served, although the building was liable to 
 laborers' liens, and there was no such statute. Wilcus v. Kling, 87 111. 
 107. 
 
 3 Thorndike v. De Wolf, 6 Pick. 120. Compare Cairo & St. L. Ry. 
 Co. V. Hindman, 85 111. 521. 
 
 io Downer v. ToplifC, 19 Vt. 399: Buchanan County Bank v. Cedar 
 Rapids, I. F. & N. W. Ry. Co., 62 Iowa, 494, 17 N. W. 737; Rowell 
 V. Felker, 54 Vt. 526; Dwinel v. Stone, 30 Me, 384; Ware v. Gowen, 
 65 Me. 534. 
 
 ADJUSTMENT OF INSURED LOSS: So held of liability under 
 policy of insurance after loss, and before adjustment. Knox v. Protec- 
 tion Ins. Co., 9 Conn. 430, 25 Am. Dec. 33; Girard Fire Ins. Co. v. 
 (154) 
 
Ch. 5] PEOPERTY SUBJECT TO GARNISHMENT. § 1^4 
 
 nor to cases in which the only contingency is the abili- 
 ty of garnishee to pay, the debt being absolute; " nor 
 to attempts to charge the garnishee as custodian for 
 property in his possession; but only refers to indebt- 
 edness.*^ 
 
 The contingency must be such as to affect the debt 
 itself, and not simply the liability of the garnishee to 
 have the effects or credits called out of his hands in a 
 particular manner.*' 
 
 Independent Promises. 
 
 § 124. It may not be inappropriate at this place to 
 notice what are known as "independent promises." 
 One's bargain must be performed according as he 
 makes it, and when, by his contract, he binds himself 
 to perform independent of performance by the other 
 party, it is no defense to a suit on his promise that the 
 other has not performed, and therefore no defense to a 
 garnishment upon it. Thus, when one had covenant- 
 ed to pay |500 per month in consideration of a cove- 
 nant by the other party to the contract to warrant and 
 defend him in the exclusive use of a certain trade- 
 mark, it was held that he could be charged as gar- 
 nishee of such other party for installments which were 
 not yet due, regardless of the possibility that such oth- 
 er party would fail to make his warranty good until 
 such installments became due. The court said: "Of 
 
 Field, 45 Pa. St. 129, 3 Grant (Pa.) 329; Northwestern Ins. C'o. v. At- 
 kins, 3 Bush (Ky.) 328, 29 Am. Dec. 239. But see post, § 149. 
 
 *i Irwin V. McKechnie, 58 Minn. 145, 59 N. W. 987. 
 
 *2 Ellis V. Goodnow, 40 Vt. 237. 
 
 *3 Downer v. Curtis, 25 Vt. 650; Moeller v. Quarrier, 14 111. 280; 
 Smith V. Gaboon, 37 Me. 281. Compare Hurst v. Home Protection 
 Fire Ins. Co., 81 Ala. 175, 1 South. 200. 
 
 (155) 
 
§ 125 LAW OF GAENISHMENT. [Ch. 5 
 
 course, the condition, as a condition subsequent, still 
 follows the indebtedness; and if, at any time, the de- 
 fendant should lose the exclusive use of the trade- 
 mark through the establishment of a right to it in 
 some other party, its obligation to continue the pay- 
 ments would cease." ** 
 
 Sales for Cash — Sales Reserving Title Till Payment. 
 
 § 125. Ordinarily, neither the buyer nor the seller 
 can be charged as garnishee of the other by reason of 
 any contract whereby the one agrees to sell and the 
 other to buy any property, whether specific or not ; for, 
 in the absence of agreement to the contrary or for the 
 giving of credit, the delivery of the goods and the pay- 
 ment of the price are concurrent conditions, and nei- 
 ther can be enforced without performance or tender of 
 the other.*^ Though the property sold be delivered to 
 the purchaser, he owes the seller no debt when, by 
 their contract, title does not pass till payment.*" In 
 such cases the garnishee may be charged for pos- 
 session of property belonging to the defendant.*' 
 
 ii Goodman v. Meriden Britannia Co., 50 Conn. 139. See, also, Eow- 
 ell V. Felker, 54 Vt. 526. 
 
 45 Paul V. Reed, 52 N. H. 136; Caldwell v. Stewart, 30 Iowa, 379; 
 Briggs V. McEwen, 77 Iowa, 303, 42 N. W. 303; Seymour v. Cooper, 25 
 Vt. 141. 
 
 46 Briggs V. McBwen, 77 Iowa, 303, 42 N. W. 303. 
 
 The interest of the vendee in goods sold under contract, reserving 
 title in the vendor till paid for, cannot toe reached by garnishing the 
 vendor, who has retalien the goods. Equities cannot be adjusted, nor 
 the balance ascertained and reached, by a garnishment returnable to 
 a Justice's court. Justices of the peace cannot exercise equity juris- 
 diction. Woodruff V. M. G. McDonald Furniture Co. (Ga.) 23 S. E. 
 195. 
 
 i^ Farrell y. Pearson, 26 111. 463. 
 (156) 
 
Ch. 6] PROPERTY SUBJECT TO GARNISHMENT. § 126 
 
 Absolute Debts before Maturity. 
 
 § 126. In several of the states it is provided by stat- 
 ute that debts belon^ng to the defendant, and abso- 
 lute beyond any contingency, may be attached by gar- 
 nishment before they have become due or payable.*' 
 But, upon principle and authority, the statutes would 
 seem unnecessary, since the law everywhere recog- 
 nizes the existence of debitum in praesenti solvendum 
 in future. Garnishment, when there is no such stat- 
 ute, has the same effect, and attaches any and all debts 
 absolutely owing to the defendant by the garnishee, 
 but not due or payable till some future day.*" As the 
 garnishee can be deprived of none of his rights by the 
 garnishment, the entry of the judgment must be de- 
 
 *8 A debt which has yet to originate is not a debt "to become due,'" 
 within the meaning of these statutes; they refer only to absolute 
 debts. Thomas v. Gibbons, 61 Iowa, 50, 15 N. W. 593; Gies 
 V. Bechtner, 12 Minn. 279 (Gil. 183); Nash v. Gale, 2 Minn. 310 (Gil. 
 265). 
 
 *9 Branch Bank v. Poe, 1 Ala. 396; Cottrell v. ,Varnum, 5 Ala. 229, 
 39 Am. Dec. 323; Teague v. Le Grand, 85 Ala. 493, 5 South. 287; 
 Walker v. Gibbs, 2 DaU. 211, 1 Yeates, 255; Fulweiler v. Hughes, 17 
 Pa. St. 440; Stewart v. West, 1 Har. & J. (Md.) 536; Peace v. Jones, 
 
 3 Murph. (N. C.) 256; Say ward v. Drew, 6 Me. 263; Dunnegan v. 
 Byers, 17 Ark. 492; Pursell v. Pappenheimer, 11 Ind. 327; King v. 
 Vance, 46 Ind. 246; Glanton v. Griggs, 5 Ga. 424; Willard v. Sheafe, 
 
 4 Mass. 235; Clapp v. Hancock Bank, 1 Allen, 394; Cross v. Brown 
 (R. I.) 33 Atl. 147, 154; Nichols v. Schofield, 2 R. I. 123; Marble E'alls 
 Ferry Co. v. Spitler, 7 Tex. Civ. App. 82, 25 S. W. 985; Secor y. Wit- 
 ter, 39 Ohio St. 218, 230; Wilcus v. Kling, 87 111. 107; Sheriff of 
 Fayette v. Buckner, 1 Litt. (Ky.) 126; First Nat. Bank v. Brainerd, 
 28 Fed. 917. CONTRA, Childless v. Dickins, 8 Yerg. (Tenn.) 113; 
 McMinn v. Hall, 2 Overt. 328. 
 
 NOTE DUB AT OPTION OF MAKER: Held, that a promissory 
 note for a certain amount containing the clause, "I am at my option 
 about paying the principal of this note while I pay the interest annu- 
 
 (157) 
 
§ 127 LAW OF GARNISHMENT. [Ch. 5 
 
 layed in such cases till the debt becomes due/" or else 
 the execution thereon stayed, as the justice of the case 
 may require." 
 
 Obligations for Payment of Which Defendant 
 Holds Security. 
 
 § 127. The fact that the garnishee has pledged or 
 mortgaged certain of his property to the defendant, as 
 security for the payment of his debt, does not render 
 him any the less indebted, and therefore he may be 
 charged on account of such secured debt : for the lien 
 of the pledge or mortgage only exists until payment, 
 and, though the garnishment does not operate to di- 
 vest the lien, the garnishee can release his property by 
 payment into court under the garnishment, the same 
 as by payment to the defendant." Such payment is 
 
 JiUy," shows a garnishable demand for the whole amount of the note. 
 Fay V. Smith, 25 Vt. 610. 
 
 RENT ACCRUING: A lease demised a term of years "from the 
 first day of September now next ensuing," and reserved a rent pay- 
 able "by equal quarter-yearly payments," the first payment "to be 
 made on the first day of December now next ensuing." Held, that 
 the rent was not legally due, and consequently not subject to garnish- 
 ment as personalty, until after midnight of December 1st. Ordway 
 T. Remington, 12 R. I. 319, 34 Am. Rep. 646. 
 
 50 Wilson V. Albright, 2 G. Greene (Iowa) 125; Secor v. Witter, 39 
 Ohio St. 218, 230. 
 
 = 1 Anderson v. Wanzer, 5 How. (Miss.) 587, 37 Am. Dec. 170; Red 
 V. Powers, 69 Miss. 242, 13 South. 586; Cottrell v. Varnum, 5 Ala. 229, 
 39 Am. Dec. 323; Marble Falls Ferry Co. v. Spitler, 7 Tex. Civ. App. 
 82, 25 S. W. 985. 
 
 5 2 Caldwell v. Stewart, 30 Iowa, 379; Culver v. Parish, 21 Conn. 
 408; McGurren v. Garrity, 68 Cal. 566, 9 Pac. 839; Nesbitt v. Camp- 
 bell, 5 Neb. 429; Courtney v. Carr, 6 Iowa, 238. 
 
 GARNISHEE'S MONEY IN DEFENDANT'S HANDS: When a 
 street-railway company disclosed as garnishee that it owed the de- 
 (158) 
 
Ch. .5] PKOPEEtTY SUBJECT TO GARNISHMENT. § 127 
 
 a good defense to a suit to foreclose the mortgage." 
 ^\'lien the debt for which the garnishee is charged is 
 secured to the defendant in any manner, the garnish- 
 ment transfers the security to the plaintiff, who may 
 enforce payment of the garnishment judgment by fore- 
 closing this security."* 
 
 fendant $6,75 for wages as conductor, but that he owed the company 
 $4.57 for money received by him, and for tickets intrusted to him to 
 sell of the value of $5, which by his contract he was bound to account 
 for in the settlement for his wages, held, that the garnishee must be 
 discharged. Fellows v. Smith, 131 Mass. 362. Compare Sauer v. Ne- 
 vailaviUe, 14 Colo. 54, 23 Pac. 87. 
 
 SALES ON CONTRACT RESERVING TITLE: When the gar- 
 nishee has received property under contract to purchase, and that 
 title shall remain in the seller till entirely paid for, there is no debt. 
 Briggs V. McEwen, 77 loua, 303, 42 N. W. 303. The garnishee may 
 then be charged for property in his possession. Farrell v. Pearson, 20 
 111. 463. 
 
 GARNISHEE'S PROPERTY CASUALLY IN DEFENDANT'S 
 HANDS: The fact that the defendant has property in his possession 
 belonging to the garnishee is, of course, no defense to the garnishment. 
 Rankin v. Simonds, 27 111. 352. 
 
 DELIVERING UP MORTGAGE: Held that, when a mortgage 
 debt is garnished, the garnishee is entitled to have the mortgage de- 
 livered up or indemnity given before judgment is entered against him. 
 Timmons v. Johnson, 15 Iowa, 23. 
 
 53 Dickinson v. Dickinson, 59 Vt. 678, 10 Atl. 821; Blaisdell v. Bow- 
 ers, 40 Vt. 126; Greenman v. Fox, 54 Ind. 267; Fowler v. Doyle, 16 
 Iowa, 534; Pine v. Shannon, 30 N. J. Eq. 404. Compare Lawrence v. 
 Lane, 9 111. (4 Gilm.) 354. 
 
 NEGOTIABILITY OP MORTGAGE NOTE: The fact that a note 
 is payable "according to the condition of the mortgage" does not de- 
 stroy its negotiability when there is notliing in the mortgage repug- 
 nant to it. Littlefield v. Hodge, 6 Mich. 326. 
 
 = 4 Alsdorf V. Reed, 45 Ohio St. 653, 17 N. E. 73; Kelly v. Gibbs, fU 
 Tex. 143, 19 S. W. 380, 563; Campbell v. Nesbitt, 7 Neb. 300. 
 
 PURCHASE MONEY LIEN: The garnishee's debt being for the 
 purchase of land, he could not set up the exemption of it as a home- 
 stead when levied on under a judgment for such purchase price, and 
 
 (159) 
 
§ 129 LAW OF GAENISHMENT. [Ch. 5 
 
 Debts for Which the Garnishee has Given His 
 Note. 
 
 Negoiinbility and Rights of Holder Determined. 
 
 § 128. Attempts to charge the makers of promis- 
 sory notes as garnishees of the payees or holders have 
 entailed much litigation, and resulted in a great vari- 
 ety of decisions in the different states; yet there are 
 certain rules which may be regarded as established. 
 The character of any naper, as to whether negotiable 
 or not, the liability of the piaker, and the person to 
 whom he is liable, whether payee, indorsee, or garnish- 
 ing creditor, are determined by the law of the state 
 which determines the obligations of the contract, usu- 
 ally the lex loci contractus.^" 
 
 Nonnegotiable Notes. 
 
 § 129. In those states in which the maker of anv 
 nonnegotiable note may urge against the assignee of 
 such note any defense which arose before he received 
 
 therefore cannot claim the exemption against execution on the gar- 
 nishment judgment rendered against liim on account of such indet)t- 
 edness. White v. Simpson (Ala.) 18 South. 151. 
 
 CONTRA: When a sheriff was liable for moneys collected, and was 
 charged as garnishee therefor, it was held that the plaintiff could not 
 sue the sheriff's bondsmen to compel payment of the garnishment 
 judgment. Graham v. Endicott, 7 Cal. 145. Compare Ross v. Heint- 
 zen. 36 Cal. 313, 321. 
 
 5 5 Hull V. Blake, 13 Mass. 153; Baylies v. Houghton, 15 Vt. 626; 
 Chase v. Haughton, 16 Vt. 594; Emerson v. Partridge, 27 Vt. 8, 62 
 Am. Dec. 617; Wheeler v. Winn, 38 Vt. 122; Ludlow v. Bingham, 4 
 U. S. 47; Smith v. Blatchford, 2 Ind. 184, 52 Am. Dec. ,504; Green v. 
 Gillett, 5 Day (Conn.) 485. 
 
 NOTE PAYABLE IN ANOTHER STATE: Held, that the maker 
 of a note payable out of the state cannot be charged as garnishee 
 (ICO) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 130 
 
 notice of the assignment, and which would be good 
 against the payee, the maker of any such note may be 
 charged as garnishee of the last known holder, for 
 payment under the garnishment will be a good defense 
 against any previous bona fide assignment of which 
 he had no notice/" On the othf>r hand, in those states 
 in which the maker of such a note cannot set up any 
 defense against the assignee which arose against the 
 former holder after the assignment, but before notice 
 thereof to the maker, — in other words, in those states 
 in which the assignment is complete without notice, — 
 the maker of such a note, for the same reason, cannot 
 be charged as garnishee of the last known holder," 
 unless it is absolutely shown that he was the actual 
 holder at the time of the garnishment, or the plaintiff 
 executes to the garnishee a good and ample bond of 
 indemnity. 
 
 Notes in Possession of Maker. 
 
 § 1.30. When a negotiable note is in the actual con- 
 trol of the maker at the time he is summoned as gar- 
 nishee of the owner, he may be charged for the debt' 
 represented thereby, though the note still retained its 
 negotiable character, for the reason for exempting 
 
 therefor. Chadbourne v. Gillmore, 63 N. H. 452; Carbee v. Mason, frl 
 N. H. 10, 4 Atl. 791. Contra, Nichols v. Hooper, 61 Vt. 295, 17 Atl> 
 134. See, also, ante, § 60. 
 
 = 8 Yocum V. White, 36 Iowa, 288; Comstock v. Parnum, 2 Mass. 90; 
 Clark V. King, 2 Mass. 524; Covert v. Nelson, 8 Blackf. (Ind.) 265; 
 Junction Ry. Co. v. Cleneay, 13 Ind. 161; Shetler v. Thomas, 16 Ind. 
 223; Canaday v. Detrick, 63 Ind. 485; Elston v. GilUs, 69 Ind. 128; 
 Dore V. Dawson, 6 Ala. 712; Robinson v. Mitchell, 1 Har. (Del.) 365. 
 
 67 St. Louis Pei-petual Ins. Co. v. Cohen, 9 Mo. 421; Speight v. 
 Brock, Freem. Ch. (Miss.) 389. 
 
 LAW GARNISH. 11 (161) 
 
§ 131 LAW OF GARNISHMENT. [Ch. 5 
 
 such demands from garnishment does not apply to this 
 class of cases/* 
 
 Statutes Making All Note Debts Garnishable as Simple Debts. 
 
 § 131. In some states the law merchant has been 
 abrogated, and the negotiability of all paper destroy- 
 ed, by statutes declaring them subject in the hands of 
 a bona fide indorsee to any defense available against 
 the pavee,^' or by declaring the maker of any negotia- 
 ble note subject to garnishment therefor in a suit 
 against the payee, at any time before the note is trans- 
 ferred and notice thereof giveh to the maker; "'' and 
 
 68 Stone V. Dean, 5 N. H. 502; Marble Falls Ferry Co. v. Spitler, 7 
 Tex. Ci\'. App. 82. 25 S. W. 985; Simmons v. Carmichael (Tex. Civ. 
 App.) 28 S. W. 690. 
 
 When one of two joint makers has possession, he cannot be charged 
 as sole debtor. Wilson v. Albright, 2 G. Greene (Iowa) 125. 
 
 5 9 Britton v. Preston, 9 Vt. 257. 
 
 6 Kimball v. Gay, 16 Vt. 131; Chase v. Hanghton, 16 Vt. 594; 
 Barney v. Douglas, 19 Vt. 98; Amoskeag Manuf'g Co. v. Gibbs, 8 
 Fost. (N. H.) 316. 
 
 DECISIONS UNDER VERMONT STATUTES: In 1836 a statute 
 of this kind in Vermont was repealed, and the effect of the repeal 
 was to put all negotiable notes on the footing of mercantile paper 
 in a commercial country. Hinsdill v. Safford, 11 Vt. 309; Little v. 
 Hale, Id. 482; Hutchina v. Evans, 13 Vt. 541. This last decision was 
 given in 1841, and the same year the legislature of Vermont passed 
 a statute subjecting all negotiable paper to attachment. Kimball 
 V. Gay, K! Vt. 131; Sargent v. Wood, 51 Vt. 597; Ayott v. Smith, 40 
 Vt. 532. 
 
 In the hands of banks the common-law quality of the paper is 
 retained, and the holder prevails over the garnishor, whether the 
 transfer was before or after the garnishment. National Bank of 
 Newbury v. Webster, 47 Vt. 43; Hall v. Bowker, 44 Vt. 77. Under 
 this statute, a maker of a note is garnishable in a suit against an 
 Indorsee of the note, unless, before being served, he had notice of a 
 transfir by him to another. Seward v. Garlin, 33 Vt. 583. Notes in the 
 (162) 
 
Ch. 5] PEOPERTY SUBJECT TO GARNISHMENT. § 132 
 
 under these statutes all notes are subject to the same 
 rules as those above stated as applying to notes nonne- 
 gotiable at common law."^ 
 
 Ocetrvled Decisions to Same Effect. 
 
 § 132. In Maryland and Missouri, without any such 
 statute, it has been, held that the maker of any note 
 may be charged as garnishee of the payee before ma- 
 turity of the note upon proof that he was the owner at 
 the time of the garnishment; "^ and that a judgment 
 against the maker of a note as garnishee in a suit 
 against an indorsee who owned it at the time of the 
 garnishment is conclusive against a subsequent in- 
 dorsee for value, before maturity and without notice."' 
 But in 1855 the Missouri decisions were superseded by 
 
 hands of banks are exempt from garnishment only when received In 
 the ordinary course of business. Farmers' & Mechanics' Bank v. 
 Drury, 35 Vt. 468. 
 Slid. 
 
 62 Stewart v. West, 1 Har. & .T. (Md.) ^SG; Scott v. Hill, ,S Mo. 88, 
 22 Am. Dec. 462; Colcord v. Daprgett, IS Mo. 557. 
 
 NOTICE OF TRANSFER— RIGHT OF TRANSFEREE TO RE- 
 COVER OF PLAINTIFF: Held, that the garnishee could be char- 
 ged, though he answered that he had been informed that the note 
 had been assigned. Quarles v. Porter, 12 Mo. 76. Contra, Walden v. 
 Valiaint, 15 Mo. 409. "As the judgment is not conclusive against him 
 [the purchaser before maturity] unless he has notice, and chooses to 
 come in and interplead, he would have a right at any subsequent time, 
 before the money was paid over to the attaching creditor, to arrest 
 the payment, or, after payment, a right to his action to recover it 
 back." Quarles v. Porter, 12 Mo. 76; Colcord v. Daggett, 18 Mo. 557; 
 Garrott v. Jailrey, 10 Bush (Ky.) 413. Contra, Funkhouser v. How, 
 24 Mo. -14; Dickey v. Fox, Id. 217; Corey v. Webber, 96 Mich. 357, 55 
 N. W. 982. 
 
 63 Somerville v. Brown, 5 Gill (Md.) 399. 
 
 Held, that the maker of a note overdue cannot be charged as 
 igarnishee of the owner, an indorsee. May v. Baker, 15 111. 89. 
 
 (163) 
 
§ 133 LAW OP GARNISHMENT. [Ch. 5 
 
 statute, and in 1879 the Maryland decisions above cit- 
 ed were overruled by a unanimous court; °* so that 
 now the law in these states conforms with the rule 
 which prevails elsewhere. 
 
 Debts Evidenced by Notes in Circulation — How Garnishablc. 
 
 § 133. When the consideration of the question is 
 not embarrassed by legislative enactment, the vast 
 preponderance of authority is in favor of the rule that 
 the right of an indorsee for value before maturity can- 
 not be defeated by any previous garnishment of which 
 he had no notice; "^ and therefore the maker cannot 
 be charged as garnishee of the payee of any outstand- 
 ing negotiable instrument under garnishment served 
 before its maturity,"" unless it is affirmatively shown 
 that before the rendition of the judgment such paper 
 
 »4 Cruett V. Jenkins, 53 Md. 217. 
 
 06 Howe V. Ould, 28 Grat. (Va.) 1; Mason t. Noonan, 7 VSHs. 600r 
 State V. .Judge of County Court, 11 Wis. 50; Llttlefield v. Hodge,. 
 6 Midi. 326; Corey v. Webber, 96 Mich. 357, 55 N. W. 982; Hubbard 
 V. Williams, 1 Minn. 54, 55 Am. Dec. 66; Commissioners of Jefferson 
 Co. V. Fox, Morris (Iowa) 48; Gillam v. Huber, 4 G. Greene (Iowa) 
 155; Myers v. Beeman, 9 Ired. (N. C.) 116; Ormond v. Moye, 11 Ired. 
 (N. C.) 564; Yarborough v. Thompson. 11 Miss. 291. 41 Am. Dec. 626. 
 
 oald.; Hinsdill v. iSafCord, 11 Vt. 309; Hutcbins v. Evans, 13 Vt. 
 540; Greer y. Powell, 1 Busb (Ky.) 489; Karp v. Citizens' Nat. Bank, 
 76 Mich. 679, 43 N. W. 680; Littlefleld v. Hodge, 6 Mich. 326; Carson 
 V. Allen, 2 Chaud. (Wis.) 123, 2 Pin. 457, 54 Am. Dec. 148; Wilson 
 V. Albright, 2 G. Greene (Iowa) 125; Gregory v. Higgins, 10 Cal. 
 339; Gaffuey y. Bradford, 2 Bailey (S. C.) 441; Sheets v. Culver, 14 
 I^a. 449; 32 Am. Dec. 593; Kimball v. Plant, 14 La. 511; Erwin v. 
 Commercial & Railroad Bank, 3 La. Ann. 186; Denham v. Pogue, 20 
 La. Ann. 195; Iglehart v. Moore, 21 Tex. 105; Price v. Brady, Id. 614; 
 Kapp V. Teel, 33 Tex. 811; Wybrants v. Rice, 3 Tex. 458; Kieffer v. 
 Ehler, 18 Pa. St. 388; Mayberry v. Morris, 62 Ala. 113; Thompson v. 
 Shelby, 11 Miss. 29(5; Howe v. Hartness, 11 Ohio St. 449, 456. 
 
 PAPER PAYABLE ON DEMAND: As to when paper payable 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 133 
 
 had become overdue, and was still the property of the 
 defendant; "' nor upon a summons served after its ma- 
 turity, unless the defendant was the owner at the time 
 
 on demand becomes overdue, see Culvei' v. Parish, 21 Conn. 408; 
 Howe V. Hartness, 11 Ohio St. 449. 
 
 A SAVINGS BANK PASS BOOK is not a negotiable instrument, 
 although the deposit is paj'able to order or the bearer of the book. 
 Therefore the deposit is subject to garnishment. Witte v. Vincenot, 
 43 Cal. 325; Nichol v. Schofield, 2 K. I. 123. See, also, ante, § 46, 
 note. 
 
 PXiOOF OF NEGOTIABILITY: The court will not presume that 
 the note is negotiable; the garnishee must show the fact. Gatchell v. 
 Foster, 94 Ala. 622, 10 South. 434. 
 
 PURPOSE OF GIVING NOTE: It is immaterial that the gar- 
 nishee may have executed the note for the purpose of enabling his 
 creditor to keep the proceeds out of the reach of creditors. Willis 
 V. Heath, 75 Tex. 124, 12 S. W. 971; Wood v. Bod well, 12 Pick. 208. 
 
 «7 Id.; Mims v. West, 38 Ga. 18, 95 Am. Dec. 379; HufC v. Mills, 
 7 Yerg. (Tenn.) 42; Moore v. Green, 4 Humph. (Tenn.) 299; Daniel 
 v. Rawlings, 6 Humph. (Tenn.) 403; Matheny v. Hughes, 10 Heisk. 
 (Tenn.) 401; Secor v. Witter, 39 Ohio St. 218, 230; Briant v. Reed, 
 14 N. .1. Eq. 271; Fitch v. Brower, 42 N. .1. Eq. 300, 11 Atl. 330: Junc- 
 tion Ry. Co. V. Cleneay, 13 Ind. 161; Cleneay v. Junction Ry. Co., 
 26 Ind. 375; King v. Vance, 46 Ind. 246; Bills v. National Park Bank, 
 !-9 N. Y. 343, 349; Bassett v. Garthwaite, 22 Tex. 230. 73 Am. Dec. 257; 
 Thompson v. Gainsville Nat. Bank, 66 Tex. 156, 18 S. W. 350; KiefEer 
 V. Ehler, 18 Pa. St. 388; Hill v. Krofts, 29 Pa. St. 186; Day v. Zim- 
 merman, 68 Pa. St. 72, 8 Am. Rep. 157; Skinner v. Moore, 2 Dev. 
 & B. (N. C.) 138, 30 Am. Dec. 155; Mayberry v. Morris, 62 Ala. 113; 
 Timm v. Stegman, 6 Wash. 1004, 32 Pac. 1004; Bnos v. Tuttle, 3 
 Conn. 27; Snider v. Ridgeway, 49 111. 522; Patton v. Gates, 67 111. 
 164; Prout v. Grout, 72 111. 450. 
 
 CONCLUSION OF REVIEW OF DECISIONS: The reader will 
 find a very elaborate review of the decisions upon this subject in 
 Drake on Attachments (sections 573-593), from which that writer 
 draws the rule above stated, and concludes as follows: "In con- 
 cluding this review of the reported decisions in this country on this 
 important subject, it is proper to remark that in none of the states 
 where the attachment of negotiable paper has been sustained are 
 the statutory provisions as to the general scope and effect of an at- 
 
 (105) 
 
§ 133 LAW OF GARNISHMENT. [Ch. 5 
 
 the garnishment was served/' But, if he was, the 
 garnishee cannot defeat the garnishment by payment 
 to a subsequent transferee for value, without notice."" 
 
 tachment more comprehensive than in those states where the con- 
 trary position is talicen. In every state the defendant's 'credits' may 
 be attached; and that term is, as to this question, fully as compre- 
 hensive as if the statute also authorized (as is frequently the case) 
 the attachment of 'rights' or 'effects.' " Id. § 590. 
 
 PRESUMPTION AS TO TRANSFER: As It is presumed that the 
 transfer was made at or about the time of making the instrument, 
 the burden is upon the plaintiff to show that the indorsement was 
 made after maturity. Mason v. Noonan, 7 Wis. 609; Karp v. Citi- 
 zens' Nat. Bank, 76 Mich. 679, 43 N. W. 680; Bassett v. Garthwaite, 
 22 Tex. 230, 73 Am. Dec. 257. Held, that this presumption is of the 
 weakest character, and slight evidence is sufficient to destroy it. 
 Hill V. Kroft, 29 Pa. St. 186. 
 
 EXECUTING NEW NOTE AFTER GARNISHMENT: If the 
 maker of negotiable paper is summoned as garnishee before its 
 maturity, and after being summoned, and after the maturity of the 
 paper, takes it up from the payee, and gives him another negotiable 
 Instrument in extension of the debt, he should be charged as gar- 
 nishee on the original note. He cannot thus defeat the rights of the 
 plaintiff, and it makes no difference that he does not know who 
 holds the second note, and the same is not matured. Leslie v. Mer- 
 rill, 58 Ala. 322, approved and followed in Thompson v. Gainesville 
 Nat. Bank, 66 Tex. 156, 18 S. W. 350. 
 
 DEFENSE THAT DEBT IS IN A NOTE MUST BE SET UP BE- 
 FORE JUDGMENT: The defense that the debt is evidenced by 
 negotiable paper must be set up at the trial, and will not sustain a 
 motion to suspend execution after the garnishee has paid the in- 
 dorsee of the note. Gatchell v. Foster, 04 Ala. G22, 10 South. 434. 
 
 «8 Bassett v. Garthwaite, 22 Tex. 230, 73 Am. Dec. 257; Warne 
 V. Kendall, 78 111. 598. 
 
 OVERDUE NOTES NOT GARNISHABLE: Held, that the maker 
 of a promissory note is not subject to garnishment therefor in any 
 case, whether the note is due or not. Davis v. Pawlette, 3 Wis. 300, 
 G2 Am. Dec. 690. 
 
 00 Burton v. Wynne, 55 Ga, 615. 
 (166) 
 
Ch. 5] PROPERTY SUBJECT TO GAKNlSHMliNT. § 135 
 
 Debts Evidenced by Note Overdue. 
 
 § 134. The garnishee may always be charged for a 
 debt he owes upon an overdue note belonging to the 
 defendant."* In some states it is held that negotiable 
 paper does not entirely lose its negotiable character 
 by becoming overdue, in this: that a transfer binds 
 the maker without notice to him, so as to deprive him 
 of the defense of payment by garnishment in a suit 
 against the payee after the transfer, but before receiv- 
 ing notice of it.'^ But the better rule would seem to 
 be that one who takes an overdue note takes it subject 
 to all the equities existing between the original par- 
 ties, and therefore subject to the defense of payment 
 under a subsequent garnishment, before the maker re- 
 ceived notice of the transfer." Upon what conditions 
 the maker of an overdue note can be charged as gar- 
 nishee of course depends upon which of these rules 
 governs the note in question, as stated at the begin- 
 ning of this title.'" 
 
 Note must be Surrendered or Bond Giren. 
 
 § 135. Ordinarily, the garnishee is entitled to have 
 the paper produced and delivered up before payment ; 
 
 70 Stevens v. Push, 12 Iowa, 430; Dore v. DawsQn, G Ala. 712; 
 Mills V. Stewart, 12 Ala. 90; Snidei- v. Ridgeway, 49 111. 522; Patton 
 V. Gates, 67 111. 164. 
 
 71 Kinsley v. Evans, 34 Ohio St. Ii58; Edney v. Willis, 23 Neb. 56, 
 36 N. W. 303; Shuler v. Bryson, C5 N. C. 201. 
 
 72 McCold V. Beatty, 12 Iowa, 299; Stevens v. Pugh, Id. 430: Mills 
 V. Stewart, 12 Ala. 90; Austin v. Kyan, 51 Vt. 110; Thompson v. 
 Gainesville Nat. Bank, 66 Tex. 156, 18 S. W. 330; Culver v. Parish, 21 
 Conn. 408. See, also, ante, § 120. 
 
 7 8 Ante, § 128. 
 
 (167) 
 
§ 136 LAW OF GARNISHMENT. fCh. 5 
 
 and therefore, before judgment against him, he is enti- 
 tled to this,'* or an indemnity as in case of a lost 
 note,'^ unless all danger of his being compelled to pay 
 it a second time has passed. 
 
 Requiring Defendnnt to Hold or Produce. 
 
 § 136. For the purpose of making the garnishment 
 effectual, and preventing a fraud upon the law by the 
 defendant negotiating the note after the garnishment, 
 it has been said that the court may require the note to 
 be placed in such custody as will prevent it from being 
 misapplied, taking care that it shall be demanded at 
 
 74 Karp V. Citizens' Nat. Bank, 76 Midi. C79, 4.3 N. W. 080; Sliulei- 
 V. Bryson, 65 N. C. 201; Titnmons v. Johnson, 15 Iowa, 23. 
 
 THE GARNISHEE MAY WAIVE RETURN AND BOND: This 
 provision is solely for the garnisliee's benefit, and his failure to de- 
 mand it does not affect the protective force of the proceedings. No 
 one else can complain. Yocum v. White, 36 Iowa, 288. 
 
 STATUTORY BOND : When the statute provides that, in any case 
 in which it is doubtful whether the defendant or another owns the 
 debt, the court may require the plaintiff to give the garnishee a bond of 
 indemnity, the refusal of the court to require the plaintiff to give a 
 bond to the garnishee savings bank, because tlVe defendant has not 
 surrendered his pass book, is discretionary, and not subject to review. 
 Maloney v. Casey (Mass.) 41 N. E. 104. 
 
 76 Shuler v. Bryson, 65 N. C. 201; Piekler v. Bainey, 4 Heisk. (Tenn.) 
 335. 
 
 .JUDGMENT AGAINST .GARNISHEE BEFORE MATURITY OF 
 NOTE: Held, that the maker of a note, while the same is current, 
 cannot be charged as garnishee of the payee, for the probability is so 
 great that the debtor may have transferred it that it would be too 
 great a hardship to compel the maker to pay the money and resort to, 
 his indemnity. Gaffney v. Bradford, 2 Bailey (S. C.) 441. 
 
 "Protection being secured to the maker, the reason of the law for 
 not subjecting him to garnishment hap ceased, and the plaintiff should 
 be entitled to the benefit of his indebtedness to the defendant." 
 Thompson v. Gainesville Nat. Bank, 66 Tex. 156, 18 S. W. 350. 
 (1C8) 
 
■Cb. o] PROPERTY SUBJECT TO GAKNISHMENT. § 137 
 
 maturity, and proper notice be given to indorsers, if 
 necessary/" 
 
 Colorable Indorsements and Holders with Notice. 
 
 § 137. If it is shown tliat the negotiation of the 
 note is a mere cover to defeat the garnishment, and 
 that the indorsee is a party to the scheme, or that it 
 is made payable to anotlier than the owner, for the 
 same purpose, the garnishee will be charged the same 
 as if no transfer had been made or it had been made 
 payable to the owner; " and the same has been held 
 though the indorsee merely had notice of the garnish- 
 ment, and paid full value/* But this notice must be 
 actual knowledge. The doctrine of notice by lis pen- 
 dens is wholly inapplicable to such cases.'" 
 
 7" Kieffer v. Ehler, 18 Pa. St. 388; Stone v. Elliott, 11 Ohio St. 2.52, 
 259. 
 
 Held, that equity will interpose, on the application of the plaintiff, 
 against an indorsee with actual notice of the attachment, to re- 
 strain him from transferring the note before due, so as to defeat the 
 garnishment. Secor v. Witter, 39 Ohio St. 218, 235. 
 
 7T Clough V. Buck, 6 Neb. 343; BiUs v. National Park Bank, 89 N. 
 y. 343; Enos v. Tuttle, 3 Conn. 27; Bostwick v. Bryant, 113 Ind. 448, 
 10 N. E. 378; King v. Vanc% 46 Ind. 246; Patton v. Gates, 67 111. 
 164; Brlant v. Reed, 14 N. J. Eq. 271; Secor v. Witter, 39 Ohio St. 
 218, 232. 
 
 The garnishee may be charged for his indebtedness to the defend- 
 ant, evidenced by a note in the plaintiff's possession, which the de- 
 fendant caused to be made payable to a third person, and by him 
 transferred, without consideration, to a co-garnishee, for the purpose of 
 defrauding the defendiint's creditors. First Nat. Bank of Hailey v. 
 Van Ness (Idaho) 43 Pac. 59. 
 
 '8 Culver V. Parish, 21 Conn. 408. 
 
 '» Mims V. West, 38 Ga. 18; Mayberry v. Morris, 62 Ala. 113; Kief- 
 fer V. Ehler, 18 Pa. St. 388; Day v. Zimmerman, 68 Pa. St. 72, 8 Am. 
 Dec. lo7; Stone v. Elliott, 11 Ohio St. 253; Secor v. AVitter, 39 Ohio 
 St. 218; County of Warren v. Marcy, 97 U. S. 9G, 105. 
 
 (1G9) 
 
§ 137a LAW OF GARNISHMENT. [Ch. S 
 
 Debts to Pay Which Check has been Given. 
 
 § 137a. The fact that the garnishee has drawn a 
 check or bought a draft to pay the debt for which the 
 plaintiff seeks to charge him is no defense to the gar- 
 nishment so long as the check or draft is in the control 
 of the garnishee/" even though it has been delivered to 
 the defendant personally, and by him taken away to 
 be cashed, provided it has found its way back to the 
 control of the drawer unpaid at the time of the gar- 
 nishment." But when an insurance company, through 
 its agent, agreed to send a cashier's check for |402.27 
 to such agent, payable to the order of the principal de- 
 fendant, in consideration of such defendant's surren- 
 dering his policy, it was held that, for the purpose of 
 receiving and delivering the check, the insurance agent 
 was the agent of the defendant, and mailing the check 
 to the agent was such a payment to the defendant as 
 to defeat a garnishment of the company before the 
 check reached its destination.^^ 
 
 Likewise, when an employe of a town was indebted 
 to one of the selectmen, and also in an uncertain 
 amount to the town, and the town, in settling the em- 
 ploye's accounts for the year, by consent of all parties, 
 gave the check to the selectman, in order that he might 
 retain the sums due from the employe to the town and 
 to himself, and while the selectman held the check the 
 town was garnished in a suit against the employe, it 
 
 so Marble Falls Ferry Co. v. Spitler, 7 Tex. Civ. App. 82, 25 S. W. 
 985. 
 
 SI Dennie v. Hart, 2 Pick. 204; Simmons v. Carmichael (Tex. Civ. 
 App.) 28 S. W. 690. 
 
 82 Campbell v. 1-Iamiey (R. I.) 33 Atl. 444. 
 (170) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 138 
 
 was held that the selectman was the agent of the de- 
 fendant to receive and appropriate the amount of the 
 check, and not the agent of the town; that the town 
 could not revoke the check; and the check operated 
 as payment/' 
 
 When the garnishee, before being summoned, had 
 delivered a check to the defendant in payment of the 
 d^bt sought to be garnished, it was held that the re- 
 ceiving of the check by the defendant operated as pay- 
 ment, at least until presentment and refusal, and 
 therefore the garnishee could not be charged.** 
 
 In England it is held that, if a garnishee is sum- 
 moned after he has delivered to the defendant a check 
 in payment of the debt for which the plaintiff seeks to 
 charge him, he is liable if he stops payment of the 
 check.^"* 
 
 But the supreme court of Ehode Island held that, 
 the garnishee having paid his debt to the defendant by 
 check, which the latter had transferred for value be- 
 fore the garnishee was served, the check operated as 
 payment, so as to prevent charging the garnishee, al- 
 though he could and did stop payment of it/" 
 
 Interest Due on Indebtedness. 
 
 Tf'Tiile Payment is Prevented by Process. 
 
 § 138. Clearly, interest due or earned by the gar- 
 nished debt before the garnishment is a part of the 
 
 83 Barnard v. Graves, 16 Pick. 41. 
 
 84 Getchell v. Chase, 124 Mass. 366. 
 
 85 Cohen v. Hale, 3 Q. B. Div. 372. 
 
 8 8 National Park Bank v. Levy, 17 R. I. 746, 24 Atl. 777. 
 A master in chancery, having money in bank for distribution, 
 had checked out all but the share due the defendant, and gave him 
 
 (171) 
 
§ 138 LAW OF GARNISHMENT, [Ch. 5 
 
 debt itself, and is attached by the process; but the 
 question of difficulty is as to whether the garnishee 
 may be charged with interest on the debt garnished 
 during the period the suit is pending. On the one 
 hand, it may be said that one prevented by legal pro- 
 cess from discharging his obligation should not be 
 charged with interest.*^ On the other hand, it is said 
 that, if he would avoid interest, he should, where the 
 statute allows it, pay the money into court, and get a 
 release from further liability.^* But these are ex- 
 treme views, and the general doctrine is that if the 
 garnishee holds the fund at all times ready to pay into 
 court, and set apart for that purpose, and does not use 
 
 a check for such balance. The defendant Immediately turned over 
 the check in payment of a debt, and later, on the same day, the bank, 
 was garnished as his debtor, before the check was presented for 
 payment. The court held that, the check being for the whole of a 
 fund equitably belonging to the payee, title passed with It, and with 
 a transfer of it, and the garnishee could not be charged. Hemphill 
 Y. Yerkes, 132 Pa. St. 545, 19 Atl. 342. 
 
 As to checks as assignment of fund drawn on, see ante §§ 70-72. 
 
 8 7 Prescott V. Parker, 4 Mass. 170; Oriental Bank v. Tremont Ins. 
 Co., 4 Mete. (Mass.) 1; Fitzgerald v. Caldwell, 2 Dall. 215; Blair v. 
 Porter, 13 N. J. Eq. 267, 270; Chase v. Manhardt, 1 Bland (Md.) 333; 
 Mackey v. Hodgson, 9 Pa. St. 468; Lyman v. Orr, 26 Vt. 121; M^ill- 
 ings V. Consequa, Pet. 0. C. 301, Fed. Cas. No. 17,707; Little v. Owen, 
 32 Ga. 20; Cowen v. St. Louis Perpetual Ins. Co., 11 Mo. 374; Clark 
 V. Powell, 17 La. Ann. 177; Irwin v. Pittsburg Ry. Co., 43 Pa. St. 
 488; .Tackson v. Lloyd, 44 Pa. St. 82; Stevens v. Barringer, 13 'Wend. 
 639; Berry v. Davis, 77 Tex. 191, 13 S. W. 978. 
 
 88 Chase v. Manhardt, 1 Bland (Md.) 333; Tazewell v. Barrett & Co., 
 4 Hen. & M. (Va.l 259; Ross v. Austin, Id. 502; Templeman v. Faunt- 
 leroy, 3 Rand. (Va.) 434; Work v. Glaskins, 33 Miss. 530; Smith v. 
 German Bank, 60 Miss. 69; Cross v. Brown (R. I.) 33 Atl. 147, 154; 
 Rice V. .Tones, 103 N. C. 22(!, 9 S. E. 571 ; McCans v. Board's Heirs, 
 1 Dana (Ky.) 340. Compare Lyman v. Orr, 26 Vt. 122; Oriental 
 Bank v. Tremont Ins. Co., 4 Mete. (Mass.) 10. 
 (172) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 139 
 
 any of it meantime, or acquire any profit from it, he is 
 not chargeable with interest.*" 
 
 When Garnishee Seeks to Profit by the Process. 
 
 § 139. On the other hand, if he assumes the atti- 
 tude of a litil.ant,"" or intentionally hinders and de- 
 lays the proceedings for the purpose of retaining the 
 fund or by connivance with the defendant,"^ or in cases 
 where the defendant could have recovered interest dur- 
 ing the period if no suit had been brought, and the gar- 
 nishee has mingled the property with his own, and 
 used it, or profited from the possession of it, — in any 
 and all of these cases clearlv he should be chargeable 
 with interest, and such is the law."^ A debtor cannot 
 stop the running of interest on his debt by garnishing 
 himself in his suit against his creditor."^ In most of 
 the states it will be presumed, in the absence of evi- 
 dence, that the garnishee was always ready and will- 
 so Candee v. Webster, 9 Ohio St. 45S; Oriental Bank i . Tremont 
 Ins. Co., 4 Mete. (Mass.) 1; Mustard v. Union Nat. Bank, 86 Me. 177, 
 29 Atl. 977; AUeglieny Sav. Bank v. Meyer, 59 Pa. St. 301; Lackett 
 V. Rumbaugli, 45 Fed. 23. 
 
 60 Chase v. Manhardt, 1 Bland (Md.) 3.S3; Georgia Insurance & 
 Tru-st Co. V. Oliver, 1 Ga. 38; Stevens v. Gvi^athmey, 9 Mo. 636; 
 Moore v. Lowrey, 25 Iowa, 336, 95 Am. Dec. 790; Shahan v. Tall- 
 man, 39 Kan. 185. 17 Pac. 82;}. 
 
 ni Fitzgerald v. Caldwell, 2 Dall. 215; Jones v. Manufacturers' 
 Nat Bank, 99 Pa. St. 317; Rushton v. Rowe, 64 Pa. St. 63; Oriental 
 Bank v. Tremont Ins. Co., 4 Mete. (Mass.) 1, 11; Lyman v. Orr, 26 
 Vt. 122. Compare Risser v. Rathburn, 71 Iowa, 113, 32 N. W'. 198. 
 
 »2 Candee v. Skinner, 40 Conn. 464; Woodruff v. Bacon, 35 Conn. 
 97; Adams v. Cordis, 25 Mass. 260, 267; Risser v. Rathburn, 71 Iowa, 
 113, 32 N. W. 200; Mattingly v. Boyd, 20 How. 128; Willings v. Con- 
 Bequa, Pet C. C. 300, Fed. Cas. No. 17,767; Brown v. S:lsby, 10 N. 
 H. 521; Abbott v. Stinchfield, 71 Me. 213; Baker v. Central ^'ermont 
 Ry. Co., 56 Vt. 302. 
 »8 Willings V. Cousequa, Pet. C. C. 301, Fed. Cas. No. 17,767. 
 
 (173) 
 
§ 141 LAW OF GARNISHMENT. [Ch. 5 
 
 ing to pay on demand, and therefore is not chargeable 
 with interest."* 
 
 Jnvesling Funds — Interest as Damages. 
 
 § 140. Of course, the garnishee is under no duty to 
 invest the funds, as many custodians are; but, on the 
 contrary, it is his duty always to have the funds ready 
 to pay immediately as the court may direct."'' If the 
 interest is chargeable only as damages for wrongful 
 detention of the funds, clearly there is no wrongful de- 
 tention while payment is prevented by legal process, 
 and therefore no interest can be charged for that peri- 
 od. »« 
 
 Plaintiff' Stands in Defendant's Shoes. 
 
 § 141. When the defendant could not have charged 
 the garnishee interest during the period if the suit had 
 not been commenced, clearly he is not liable to the 
 plaintiff for interest, for the plaintiff stands in the de- 
 fendant's shoes, and acquires his rights only."' 
 
 »4 Norris v. Hall, 18 Me. 332; Blodgett v. Gardiner, 45 Me. 542; 
 Georgia Trust & Insurance Co. v. Oliver, 1 Ga. 38; Adams v. Cordis, 
 8 Picls. 260, 268; Willings v. Consequa, Pet. C. C. 301, Fed. Cas. No. 
 17,767; Stevens v. Gwathmey, 9 Mo. 636; Moore v. Lowrey, 25 Iowa, 
 336, 95 Am. Dec. 790. CONTRA, Candee v. Webster, 9 Ohio St. 452. 
 As to Maryland, Virginia, Mississippi, and Kentucky, see ante, § 138. 
 
 !>5 Candee v. Skinner, 40 Conn. 464, 468; Mattingly v. Boyd, 20 
 How. 128; UpdegrafC v. Spring, 11 Serg. & R. (Pa.) 188. 
 
 8 Adams v. Cordis, 8 Pick. (Mass.) 260; Oriental Bank v. Tre- 
 mont Ins. Co., 4 Mete. (Mass.) 1, 7; Rennell v. Kimball, 5 Allen 
 (Mass.) 356, 367; Bickford v. Rich, 105 Mass. 340; Huntress v. Bur- 
 tiank. 111 Mass. 213; Smith v. Flanders, 129 Mass. 322; Mustard v. 
 Union Nat. Bank, 86 Me. 177, 29 Atl. 977; Albion Lead Works v. 
 Citizens' Ins. Co., 3 Fed. 197; Bridges v. Sheldon, 7 Fed. 17, 40. 
 But see Cross v. Brown (R. 1.) 33 Atl. 147, 154. 
 
 07 Lyman v. Orr, 26 Vt. 122; Oriental Bank v. Tremont Ins. Co., 
 (174) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMKNT. § 143 
 
 Imhility Over to Defendant after Garnishment. 
 
 § 142. On the other hand, if the plaintiff could not 
 recover interest for the period the suit is pending, the 
 defendant cannot afterwards recover it in an action 
 against the garnishee, the garnishment having been 
 defeated or discontinued."^ But, if the garnishment 
 proceedings are manifestly void, interest is chargea- 
 ble.°° It is held that the suit relieves the garnishee 
 from the payment of interest only on the amount claim- 
 ed by the plaintiff in the suit, and a liberal allowance 
 for costs and expenses.^"" 
 
 Demands in Suit or Judgment. 
 
 Not Garnishable after Issue Joined. 
 
 § 143. It has been held that a garnishee can never 
 be charged by reason of anything he may owe the de- 
 fendant upon any demand upon which suit is pending 
 against him commenced by the defendant before the 
 garnishment summons was served;"^ and, although 
 this position has been abandoned,"^ it is still the law 
 in some states that debts in suit are liable to garnish- 
 
 4 Mete. (Mass.) 1; Qui^rg v. Kittredge, 18 N. H. 137; Thompson v. 
 Stewart, 3 Conn. 171, 184, 8 Am. Dec. 168. 
 
 8 8 Mackey v. Hodgson, 9 Pa. St. 408; Updegraff v. Spring, 11 Serg. 
 & U. (Pa.) 188; Webber v. Carter, 1 Phila. (Pa.) 221. 
 
 When the garnishee was sued before he was garnished, and the 
 garnishment did not stay the suit, held, that it did not stop interest. 
 Albion Lead Works v. Citizens' Ins. Co., 3 Fed. 197. 
 
 10 Hawkins v. Georgia Nat. Bank, 61 Ga. lOG. Compare Stevens v. 
 Bari-inger, 13 Wend. (N. Y.) 639. 
 
 10 sickman v. Lapsley, 13 Serg. & R. (Pa.) 224. 
 
 101 Gridley v. Harraden, 14 Mass. 496; Burnham v. Folsom, 5 N. 
 H. 566. 
 
 102 Thorndike v. De Wolf, 6 Pick. 120; Locke v. Tippets. 7 Mass. 
 
 (175) 
 
§ 144 LAW OF GARNISHMENT, [Ch. i> 
 
 ment only when the suit against the garnishee has not 
 passed the stage in which he can set up the garnish- 
 ment, by plea or otherwise therein, to prevent the ren- 
 dering of judgment against him in respect of the prop- 
 erty or debt garnished/"^ 
 
 Garitishable at Any Stage of Proceedings. 
 
 § 144. But the more generally accepted doctrine is 
 that, for any liability of the garnishee to the defend- 
 ant upon which the latter has brought suit, the gar- 
 nishee may be charged upon a summons served upon 
 him at any stage of the proceedings, either before judg- 
 ment is recovered against him by the defendant,^"* or 
 after such judgment is recovered, ^"^ and execution up- 
 
 149; Foster v. Jones, 15 Mass. 185; Foster v. Dudley, 30 N. H. 4C3; 
 Trombly v. Clark, 13 Vt. 118; Spicer v. Spicer, 23 Vt. 678. 
 
 103 Howell V. Freeman, 3 Mass. 121; Kidd v. Shepherd, 4 Mass. 
 238; M'Cattrey v. Moore, 18 Pick. 492, 494; Foster v. Dudley, 30 N. 
 H. 403; Thayer v. Pratt, 47 N. H. 470: Trombly v. Clark, 13 Vt. 118; 
 Wadsworth v. Clark, 14 Vt. 139; Holt v. Kirby, 39 Me. 1G4; Coppell 
 V. Smith, 4 Term R. (Bng.) 312. 
 
 The mere fact of issue being joined held not sufficient to prevent 
 charging the defendant as garnishee. Smith v. Barker, 10 Me. 458. 
 Contra, Kidd v. Shepherd, 4 Mass. 2.38. 
 
 3 04 Grosslight v. Giisup, .58 Mich. 531. 25 N. W. .505; Burt v. Wayne 
 Circuit Judge, 82 Mich. 251, 46 N. W. 380; MoCarty v. Emlin, 2 
 Yeates (Pa.) 190, 2 Dall. 277; Crabb v. Jones, 2 Miles (Pa.) 130; 
 Sweeny v. Allen, 1 Pa. St. 380; Ulrich v. Hower, 156 Pa. St. 414, 27 
 Atl. 243; Trowbridge v. Means, 5 Ark. 135. 39 Am. Dec. 368; St. 
 l^ouis, 1. U. & a. Ky. Co. v. Kichler, 48 Ark. 349, 3 S. W. 56; Smith 
 V. Carroll, 17 K. 1. 125, 21 Atl. 343; Hutt v. Mills, 7 Yerg. (Tenn.) 
 42; Penniman v, Smith, 5 Lea (Tenn.) 130; Hitt v. Lacey, 3 Ala. 
 104, 36 Am. Dec. 440; Thrasher v. Buckingham, 40 Miss. 67; Lieber 
 V. St. Louis Agricultural & Mechanical Ass'n. 36 Mo. 382; McDonald 
 V. Carney, 8 Kan. 20. 
 
 100 Dodd V. Brott, 1 Minn. 270 (Gil. 205), tj6 Am. Dec. 541; Griffin 
 T. Potter, 27 Mich. 160; Scott v. Kohmau, 43 Neb. 618, G2 N. W. 46; 
 (17C) 
 
Ch. 5] PHOPERTY SUBJECT TO GAKNISHMENT. § 144 
 
 on it has been issued, and pnt into the hands of an 
 officer to enforce payment of it;"" provided always 
 that the action in which he is summoned as garnishee 
 
 Gager v. Watson, 11 Conn. 1G8; Crabb v. Jones, 'Z Miles (Pa.) 130; 
 Fithian v. New YJik & E. Ry. Co., 31 Fa. St. 114; Belcher v. Grubb, 
 4 Har. (Del.) 461; Webster v. McDaniel, 2 Del. Ch. 297; Skipper v. 
 Foster, 29 Ala. 330, 65 Am. Dec. 405; Calhoun v. Whittle, .'i(i Ala. 
 138; Doro v. Dougherty, 72 Cal. 232, 13 Vac. 022; Ochiltree v. Mis- 
 souri, X. & N. Ry. Co., 49 Iowa, 150; Gray v. Henby, 1 Smedes & M. 
 (Miss.) 598; O'Brien v. Liddell, 10 Smedes & M. (Miss.) 371; Minard 
 V. Lawler, 2(i 111. iiOl; Keith v. Harris, 9 Kan. 380; Saffiord v. Max- 
 well, 23 La. Ann. 345. CONTRA: Prescott v. Parker, 4 Mass. 170; 
 Shinn v. Zimmerman, 23 N. J. Law, 150, 55 Am. Dec. 260; Black v. 
 Black, 32 N. J. Eq. 74; Trowbridge v. Means, 5 Ark. 135. 39 Am. Dec. 
 368; Tunstall v. Means, 5 Ark. 700; Norton v. Winter, 1 Or. 47, 02 
 Am. Dec. 297; Despin v. Crow, 14 Or. 404, 12 Pac. 806; Franklin v. 
 Ward, 3 Mason (U. S.) 136, Fed. Cas. No. 5.0.15. 
 
 APPEAL AND DISMISSAL OF APPEAL AFTER GARNISH- 
 MENT: After a person against whom judgment has been rendered 
 
 106 Griffin v. Potter, 27 Mich. 166; Belcher v. Grubb, 4 Har. (Del.) 
 461; Gager v. Watson, 11 Conn. 168; Blake v. Adams, 64 N. H. 86, 6 
 Atl. 482; Luton v. Hoehn, 72 111. 81; TJlrich v. Hower, 156 Pa. St. 414, 
 27 Atl. 243. 
 
 "No doubt, some inconvenience may arise in subjecting judgments 
 upon which executions have already been issued to this process; but 
 the general good should be regarded as the paramount interest, rather 
 than the mere inconvenience of the debtor." Luton v. Hoehn, 72 111. 
 81; Gager v. Watson, 11 Conn. 168. "The trustees cannot equitably 
 be put to the trouble and expense of protecting themselves against a 
 double liability put upon them for the plaintiffs' benefit. It is for the 
 plaintiffs to employ all procedure necessary for the trustees' safety." 
 Blake v. Adams, 64 N. H. 86, 6 Atl. 482. 
 
 Held, that the attachment of part of a judgment by garnishment 
 after execution thereon is issued and levied cannot avoid the title of 
 a bona fide purchaser at the sale. Simmons v. Vandegrift, 1 N. .1. Eq. 
 55. 
 
 Held, that money paid into court may be reached in garnishment 
 against the plaintiff by summoning the clerk. Trotter v. Lehigh Zinc 
 Co., 41 N. .T. Eq. 229, 3 Atl. 95. See. also, ante, §§ 27-35. 
 
 LAW GARMBH. 12 (17,7) 
 
§ 145 LAW OF GARNISHMENT. [Ch. 5 
 
 is in tlie same court that rendered the judgment or has 
 jurisdiction of the action against him, for, by the gen- 
 eral supervisory control which all courts of general 
 jurisdiction possess and may exercise over their judg- 
 ments and process, they may in all cases afford the 
 garnishee summary relief from vexation, and insure 
 him ample protection from double liability.^"^ 
 
 Suit or Judgment and Garnishment must be before the Same Court. 
 
 § 145. On the other hand, most of the courts hold 
 that a judgment debtor, whether the judgment against 
 
 has appealed therefrom, he may be charged as garnishee for the de- 
 mand involved in the suit. St. Louis, I. M. & S. Ry. Co. v. Richter, 48 
 Ark. 349, 3 S. W. 56. 
 
 And he cannot avoid liability by dismissing the appeal or com- 
 promising after the garnishment is served. Bell v. Wood, 87 Ky. 56, 
 7 S. W. 550. 
 
 DORMANT JUDGMENTS: After the year and a day vyithin 
 which execution may issue has expired, the judgment debtor may be 
 charged as garnishee for the amount remaining unpaid on the judg- 
 ment. Sabin v. Cooper, 15 Gray, 532. 
 
 WHEN PARTIES OF RECORD ARE NUT PARTIES IN INTER- 
 EST: Held, that one against whom judgment has been rendered for 
 the use of the defendant, but in the name of another, cannot be 
 •charged. Webster v. Steele, 75 111. 544. 
 
 If a judgment is obtained in the name of one party, but belongs to 
 another, of course the judgment debtor cannot be charged as gar- 
 nishee of the nominal creditor. Hodson v. McConnel, 12 111. 170; 
 Ives V. Addison, 39 Kan. 172, 17 Pac. 797; Gunzberg v. Kent Circuit 
 Judge, 42 Mich. 591, 4 N. W. 308. See, also, ante, § 47. 
 
 VERDICT IN ACTIONS FOR DAMAGES: Suit brought and ver- 
 dict recovered without judgment yet entered upon it will not render a 
 demand garnishable which otherwise would not be. See post, § 152. 
 
 107 Sanchez v. Carriaga, 31 Cal. 170; Belcher v. Grubb, 4 Har. (Del.) 
 461; 7 Am. & Eng. Enc. Law, 146. 
 
 "There is no principle of law better recognized than that which 
 gives to courts of record power over the process of their courts. It is 
 essential to the administration of j ustice, and it by no means depends 
 (178) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 14-5 
 
 him was rendered in the same jurisdiction as that in 
 which he is sought to be charged as garnishee,"^ or in 
 another jurisdiction,'"" or one against whom suit has 
 been begun in the same "" or another jurisdiction,'" 
 
 upon statutory enactment, but the power is coeval with the common- 
 law courts, and such courts will recall their process, and quash the 
 same, when it is shown that it would be illegal or inequitable to per- 
 mit its further use and to allow it to be enforced." Sandburg v. 
 Papineau, 81 111. 446. See, also, Orient Ins. Co. v. Sloan, 70 Wis. Gil, 
 36 N. W. 388. 
 
 CLAIMANTS OF JUDGMENT: When it appears that the judg- 
 ment garnished does not belong to the defendant, of which the gar- 
 nishee had notice when he answered, the supreme court will not, by 
 mandamus, compel the circuit judge to stay proceedings for collection 
 of it. Gunzberg v. Kent Circuit Judge, 42 Mich. 591, 4 N. W. 308. 
 
 LACHES OP GARNISHEE: When a judgment debtor is charged 
 as garnishee and fails to prove the defense till his property has been 
 attached by garnishment on the judgment against him, and con- 
 demned, his laches may impose upon him a double liability. Everdell 
 V. Sheboygan & F. d. L. Ry. Co., 41 Wis. 403; Wood v. Mann, 125 
 Mass. 319. 
 
 108 Scott V. Rohman, 43 Neb. 618, 62 N. W. 46; Sievers v. Wood- 
 burn Sarven Wheel Co., 43 Mich. 275, 5 N. W. 311; Clodf elder v. Cox, 
 1 Sneed (Tenn.) 330, 60 Am. Dec. 157; Young v. Young, 2 Hill (S. C.) 
 426; Perkins v. Guy, 2 Mont. 15; Black v. Black, 32 N. J. Eq. 74; 
 Sharpe v. Wharton, 85 Ala. 225, 3 South. 787. 
 
 109 Burrell v. Letson, 2 Speers (S. C.) 378; American Bank v. Snow, 
 9 R. I. 11, 98 Am. Dec. 364; Shinn v. Zimmerman, 23 N. J. Law, 150, 
 60 Am. Dec. 260; Henry v. Gold Park Min. Co., 15 Fed. 649, 5 Mc- 
 Crary, 70; Renier v. Hurlbut, 81 Wis. 32, 50 N. W. 783; Thomas v. 
 Woolridge, 2 Woods, C. C. 667, Fed. Gas. No. 13,918. 
 
 110 Custer v. White, 49 Mich. 262, 13 N. W. 583; Noyes v. Foster, 
 48 Mich. 273, 12 N. W. 221; Miller v. Taylor, 14 Tex. 538. 
 
 111 Wallace v. McConnell, 13 Pet. 136, 150; Mack v. Winslow, 8 C. 
 C. A. 134, 59 Fed. 316; Greenwood v. Rector, Hemp. 708, Fed. Cas. 
 No. 5,792; Campbell v. Emerson, 2 McLean, 30, Fed. Cas. No. 2,357; 
 Wood V. Lake, 13 Wis. 84; Orient Ins. Co. v. Sloan, 70 Wis. 611, 36 
 N. W. 388; American Bank v. Rollins, 99 Mass. 313; Traders' Ins. 
 Co. v. Chase (Tex. Civ. App.) 31 S. W. 1103. 
 
 CONFLICT OF JURISDICTION: "The jurisdiction of the district 
 
 (170) 
 
§ 145 LAW OF GARNISHMENT. [Ch. 5 
 
 cannot, for the demand involved in such suit or judg- 
 ment, be charged as garnishee in any court other than 
 that in w^hich the action is pending against him or the 
 judgment against him -was rendered, and that, if the 
 defendant in a pending suit or a judgment debtor al- 
 lows himself to be charged as garnishee in any suit be- 
 fore another court, the payment of the garnishment 
 judgment will constitute no defense to the action 
 against him.^'^ 
 
 court of the United States, and the right of the plaintiff to prosecute 
 his suit in tliat court, having attached, that right could not be arrested 
 or taken away by any proceedings in another court. This would pro- 
 duce a collision in the jurisdiction of courts that would extremely 
 embarrass the administration of Justice. » * * Xhe priority of suit 
 will determine the right. The rule must be reciprocal; and, where 
 the suit in one court is commenced prior to the institution of proceed- 
 ings under attachment in another court, such proceedings cannot ar- 
 rest the suit; and the maxim, 'Qui prior est in tempore, potior est in 
 jure,' must govern tlie case." Wallace v. McConnell, 13 Pet. 150, ap- 
 proved in Uio Grande Ry. Co. v. Gomila, 132 U. S. 485, 10 Sup. Ct. 
 155. 
 
 Execution will not be stayed on the ground that garnishment pro- 
 ceedings, commenced after the action in which the judgment was 
 rendered, are pending in another state. Shrewsbury v. Tufts (W. 
 Va.) 23 S. E. (1!J2, G97. 
 
 112 Sievers v. Woodburn Sarven Wheel Co., 43 Mich. 275, 5 N. W. 
 311; Noyes v. Poster, 48 Mich. 273, 12 N. W. 221; Whipple v. Rob- 
 bing, 97 Mass. 107, 93 Am. Dec. (U; McRee v. Brown, 45 Tex. 503. 
 
 NO GROUND FOR INTERPLEADER: When one who had been 
 sued was summoned in another court as garnishee of the plaintiff in 
 such suit, and defended on the ground that suit was pending against 
 him, but was, nevertheless, charged, and thereafter his creditor re- 
 covered judgment in such tirst action, and executions were Issued on 
 both judgments, held, that the garnishee could not maintain inter- 
 pleader, but must pay the judgment in the first action, and at his 
 peril appeal from the judgment against him as garnishee. Burke v. 
 Hance, 76 Tex. 76, 13 S. W. 163. 
 (ISO) 
 
Oh. 5] PROPERTY SUBJECT TO GARNISHMENT. § 147 
 
 How the Reason Limits the Rule. 
 
 § 146. The principal reason given for these deci- 
 sions is that to allow this to be done would be permit- 
 ting one court to control the action of another of the 
 same or superior authority and dignity, and, even in 
 the same jurisdiction, would be an intolerable interfer- 
 ence with the action of the other court. But the su- 
 preme courts of some of the states take the more prac- 
 tical view that courts are ordained and established as 
 means of justice, and that, so far as the courts of the 
 particular state are concerned, it is not the action of 
 the court, but the action of the defendant, that is 
 stayed, and not even that if he wishes to give the req- 
 uisite bond to release the garnishee; and, therefore, 
 that it makes no difference whether the suit or judg^ 
 ment against the garnishee is in the same court in 
 which it is attempted to charge him as garnishee or in 
 another, or whether the courts be of the same or differ- 
 ent authority."" This rule has been applied in some 
 states although the judgment against the garnishee 
 was rendered by a court of another jurisdiction.^" 
 
 Payment under Garnishment in Another State. 
 
 § 147. Whatever opinion may be entertained cor- 
 ceruing the correctness of these last decisions, it is cer- 
 
 113 McCarty v. Emlin, 2 Yeates, 190, 2 Dall. 277; HufE v. MiUs, 7 
 Yerg. (Tenn.) 42. 
 
 A debtor on a circuit court judgment may be charged as garnishee 
 therefor in an action before a justice of the peace. Jones v. St. Onge, 
 67 Wis. 520, 534, 30 N. W. 927; Luton v. Hoehn, 72 111. 81; Dore v. 
 Dougherty, 72 Cal. 232, 13 Pac. 621. Contra, Clodfelder v. Cox, 1 
 Sneed (Tenn.) 330, 60 Am. Dec, 16 f. 
 
 114 Jones y. New York & B. Ry. Co., 1 Grant (Pa.) 454; Fuller v. 
 Fopte, 56 Conn. 341, 15 Atl. 760; Fithian v. New York & E. Ky. Co., 
 31 Pa. St. 114; Knebelkamp v. Fogg, 55 111. App. 503. 
 
 (ISi) 
 
§ 148 LAW OF GARNISHMENT. [Ch. 5 
 
 tain that when, by garnishment in another state, a 
 judgment debtor has been compelled to pay his debt 
 or a part of it to his creditor's creditor, good sense and 
 plain common justice demand that he should not be re- 
 quired to pay again, and that the court which rendered 
 the judgment should, on proper application and proof 
 of the facts, restrain the judgment creditor who has 
 had the benefit of one payment from extorting an- 
 other."" 
 
 Rights of Action for Torts or for Damages 
 Unliquidated. 
 
 Demands not Ascertainable by Computation. 
 
 § 148. Are demands the amount of which cannot 
 be ascertained by computation, but only by the verdict 
 of a jury or in other similar manner, included in the " 
 terms of the statutes declaring what property and 
 debts may be attached by garnishment? It is held 
 that a right of action in favor of the defendant against 
 the person summoned as garnishee for the failure of 
 such person to perform his contract with the defendant 
 cannot be attached by garnishment process, such claim 
 being only for unliquidated damages, to be ascertained 
 by a jury or in any other appropriate manner.^^" 
 
 lis Allen V. Watt, 79 111. 284. Compare Orient Ins. Co. v. Sloan, 70 
 Wis. 611, 36 N. W. 388; Lehigh Zinc & Iron Co. v. Trotter, 42 N. J. 
 Eq. 678, 9 Atl. 691; The City of New Bedford, 20 Fed. 57. 
 
 110 Hugg V. Booth, 2 Ired. (N. C.) 282; Deaver v. Keith, 5 Ired. (N. 
 C.) 374; Rand v. White Mt. Ry. Co., 40 N. H. 79; McKean v. Turner, 
 45 N. H. 203; Eastman v. Thayer, 60 N. H. 575; Leefe v. Walker, IS 
 La. 1; Capes v. Burgess, 135 111. 61, 25 N. E. 1000. Contra, New 
 Haven Steam Sawmill Co. v. Fowler, 28 Conn. 103, 107; Woodruff v. 
 Fellowes, 35 Conn. 105; Knox v. Protection Ins. Co., 9 Conn. 430, 25 
 Am. Dec. 33. 
 (182) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 150 
 
 Insurance before Adjustment of Loss. 
 
 § 149. Upon the same reasoning, it has been held 
 in some states that, after insured property is injured 
 or destroyed, the liability of the insurance company 
 on its policy is not garnishable till the loss is adjusted, 
 because the amount is not liquidated.^" 
 
 Other Illustrations. 
 
 § 150. No one can be charged as garnishee by rea- 
 son of any mere right of action against him in favor of 
 the defendant for a tort committed."* Thus, liabil- 
 ity to the defendant in an action for deceit,"'' or for 
 wrongfully converting the defendant's property,^^" or 
 for a libel published against the defendant,^" is not 
 garnishable. Liliewise, the liability of a sheriif or con- 
 stable to the defendant for damages by reason of the 
 failure of the officer to execute a process in favor of the 
 defendant is not garnishable,'"- much less is the liabil- 
 
 117 Bucklin v. Powell, 60 N. H. 119; McKean v. Turner, 45 N. H. 
 203; Katz v. Sorsby, 34 La. Ann. .588. Contra, Girard Fire Ins. Co. 
 V. Field, 45 Pa. St. 129. 3 Grant, Cas. 329; Knox v. Protection Ins. 
 Co.. 9 Conn. 430, 25 Am. Dec. 33; Northwestern Ins. Co. v. Atkins, 3 
 Bush (Ky.) 328, 96 Am. Dec. 239. 
 
 For decisions concerning liability on insurance policies before proof 
 of loss, see ante, § 119. 
 
 lis Paul V. Paul, 10 N. H. 117; Despatch Line v. Bellamy Manufg 
 Co., 12 N. H. 203; Foster v. Dudley, 30 N. H. 463; Holcomb v. 
 Town of Winchester, 52 Conn. 447, 52 Am. Rep. 608; Rundlet v. Jor- 
 dan, 3 Me. 47; St. .Toseph Manufg Co. v. Miller, 69 Wis. 3S9, 34 N. 
 W. 235. 
 
 110 Peet V. McDaniel, 27 La. Ann. 4.55. 
 
 120 Selheimer v. Elder, 98 Pa. St. 154; Keyes v. Milwaukee & St 
 P. Ry. Co.. 25 Wi.s. 691. 
 
 121 Detroit Post & Tribune Co. v. Reilly. 46 Mich. 459, 9 N. AV. 492. 
 Compare Hill v. Bowman, 35 Mich. 191. 
 
 i22Hemmenway v. Pratt, 23 Vt. 332; Lomerson v. Huffman, 25 
 N. J. Law, 625. 
 
 (183) 
 
§-151 LAW OF GARNISHMENT. [Ch, 5 
 
 ity of bis bondsmen for the same."" The statutory- 
 right to waive the tort and sue in assumpsit is per- 
 sonal, and cannot be claimed by garnishment.^^* None 
 of the above causes of action are ajarnishable, for the 
 reason that they are not included within the terms of 
 the statute defining what may be attached by garnish- 
 ment. 
 
 Usury — Breach of Warranty. 
 
 § 151. It has also been held that a person who has 
 taken money from the defendant usuriously,"" or upon 
 a deed which conveyed no title or riehts, and therefore 
 formed no consideration for the money paid,^^° cannot 
 be charged as garnishee for such money, although the 
 defendant might maintain assumpsit for it. But most 
 of these decisions, if not all of them, were rendered in 
 states and under statutes which require that the per- 
 son summoned should be fiduciary depositary, or com- 
 missary of the defendant, or by express contract obli- 
 gated to him in order to be chargeable as garnishee, 
 which are not required by the statutes of most of the 
 states, and, it is apprehended, would not obtain except 
 by force of such statutes."^ 
 
 123 Eddy V. Heath, 31 Mo. 141. 
 
 124 Lewis V. Dubose, 29 Ala. 219. 
 
 i25Boardman v. Roe, 13 Mass. 104; Barker v. Esty, 19 Vt 131; 
 Fish V. Field, Id. 141; Ransom v. Hays, 39 Mo. 445; Graham v. 
 Moore, 7 B. Mon. (Ky.) 53. Compare Upton v. Johnston, 84 Wis. 8, 
 12, 54 N. W. 266; Church v. Simpson, 25 Iowa, 408. 
 
 12 Getchell v. Chase, 37 N. H. 106. Contra, Allen v. Hazen, 26 
 Blich. 142; Williams v. Reed, 5 Pick. 480. 
 
 12 7 Allen T. Hazen, 26 Mich. 142. Compare De Graff v. Thompson, 
 24 Minn. 452, and Connor v. Third Nat Bank, 90 Mich. 328, 51 N. W. 
 523, with Staniels v. Raymond, 4 Gush. 314. 
 (184) 
 
€h. 5] PROPERTY SUBJECT TO GARNISHMENT. § 152 
 
 Effect of Verdict before Judgment — Appeals. 
 
 § 152. If the claim of the defendant ag:ainst the 
 person summoned as garnishee is not of a garnishable 
 nature, it will become so only on judgment being en- 
 tered upon it in favor of the defendant. A verdict 
 merely, without judgment entered, will not be suffi- 
 cient.^^' When the claim becomes srarnishable by the 
 entry of judgment against the garnishee upon it be- 
 fore he is summoned, an appeal without entering a su- 
 persedeas will not defeat the garnishment if the judg- 
 ment is affirmed on the appeal."" An appeal does 
 not destroy the finality of the judgment, and keep 
 the demand alive as it existed before the judgment 
 was entered; and therefore the garnishee can be 
 charged on a garnishment served while the appeal is 
 pending, provided the judgment of the lower court is 
 affirmed by the appellate court.*'" 
 
 12S Detroit Post & Tribune Co. t. Reilly, 46 Mich. 459, 9 N. W. 492; 
 Thayer v. South wlcli, 8 Gray, 229; Gamble v. Central Railroad & 
 Banking Co., 80 Ga. 595, 7 S. B. 315; .Tones v. St. Onge, 6T Wis. 520, 
 30 N. W. 927; Kellogg V. Schuyler, 2 Denio (N. Y.) 73. 
 
 The entry of a default, and noticing the case for assessment of 
 damages, does not render a liability for a tort garnishable. Holcomb 
 V. Town of Winchester, 52 Conn. 447, 52 Am. Rep. 608. 
 
 129 Phillips V. Germon, 43 Iowa, 101. 
 
 130 Kreisle v. Campbell (Tex. Sup.) 33 S. W. 852, disapproving an 
 opinion to the contrary by the court of civil appeals in the same 
 case, reported in 32 S. W. 581. 
 
 (185) 
 
§ 153 LAW OF GARNISHMENT. [Ch, 5 
 
 Equitable Claims. 
 
 Whether Gm-nishment is a Legal or an Equitable Proceeding. 
 
 § 153. Sometimes garnishment is considered as a 
 proceeding at law/" suited only to the trial of legal 
 controversies."^ At other times it has been looked 
 upon as a proceeding of an equitable character,^^' in 
 which equitable issues may be presented and tried as 
 well as in a court of chancery; "* while in some states 
 
 131 Han-ell v. Whitman, 19 Ala. 138; Teague v. Le Grand, 85 Ala. 
 493, r^ South. 287; Craft v. Snmmersell, 93 Ala. 430, 9 South. 593; 
 Webster v. Steele, 75 111. 544; May v. Baker, 15 111. 89; Knowles v. 
 Herbert, 11 Or. 54, 240, 4 Pac. 126; Williams v. Gallick, 11 Or. 337, 
 3 Pac. 4G9; Case v. Noyes, 16 Or. 329, 19 Pac. 104; Curtis v. Ford, 
 78 Tex. 262, 14 S. W. 614; Cross v. Brown (R. I.) 33 Atl. 147, 157. 
 
 132 Knowles v. Herbert, 11 Or. 54, 240, 4 Pac. 126; Schneider v. 
 Lee (Or.) 17 Pac. 209; I^ockett v. Rumbough, 40 Fed. 523; Picquet 
 V. Swan, 4 Mason, 443, Fed. Cas. No. 11,133; dissenting opinion in 
 Cummings v. Fearey, 44 Mich. 42, 6 N. W. 98. 
 
 13 3 In re Glen Iron Works, 17 Fed. 324; Hudson v. McConnel, 12 
 111. 170; Carter v. Webster Winnipiseogee Paper Co., 65 N. H. 17, 
 17 Atl. 978; Stedman v. Vickery, 42 Ma. 132; Delaney v. Hartwig 
 (Wis.) 64 N. W. 1035; First Nat. Bank v. Knowles, 67 Wis. 373, 389, 
 28 N. W. 225; Kennedy v. Mcl.ellan, 76 Mich. 598, 604, 43 N. W. 641. 
 
 134 Shaver Wagon & Carriage Co. v. Halsted, 78 Iowa, 730, 43 N. W. 
 623; La Crosse Nat. Bank v. Wilson, 74 Wis. 391, 43 N. W. 153; 
 First Nat. Bank v. Knowles, 67 Wis. 373, 389, 28 N. W. 225; Page 
 V. Smith, 25 Me. 256; Whitney-Holmes Oi-gan Co. v. Petitt, .34 Mo.' 
 App. 536. Contra. Sears v. Thompson, 72 Iowa, 61, 33 N. W. 364. 
 
 The; trial of the bona fldes of a conveyance to the garnishee by 
 the defendant in an attempt to charge the former therefor in a suit 
 against the latter has beeu held not to involve an equitable issue, 
 and therefore it was held error to transfer the cause to the equity 
 side of the court for trial. Kelley v. Andrews (Iowa) G2 N. W. 853. 
 See, also, ante, § 75. 
 
 It is not denied that there are cases subject to equitable accounting. 
 Des Moines Sav. Bank v. Colfa.Y Hotel Co., 88 Iowa, 4, 55 N. W. 67. 
 (186) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 154 
 
 courts which try only chancery causes are invested 
 with jurisdiction in garnishment by statute. From 
 the opportunity it affords for obtaining discovery, it is 
 generally admitted to be an appropriate proceeding in 
 which to try the bona fides of an alleged assignment, 
 and apply the assigned property to the use of creditors 
 of the real owner; "° and in determining, the rights of 
 plaintiff, garnishee, and claimant, respectively, in 
 cases in which a claimant intervenes or is interplead- 
 ed, the jurisdiction exercised and the procedure adopt- 
 ed certainly conform more nearly to a suit in chan- 
 cery than to an action at law."" The effect of abol- 
 ishing the distinction between courts of law and equity 
 under the codes adopted in various states has been dis.- 
 cussed in this connection, but nothing seems to have 
 been decided further than that inferior courts are not 
 thereby vested with equity powers which they did not 
 previously possess."^ It has been held that, if statu- 
 tory garnishment can ever be employed to enforce a 
 decree of a court of chancery in a state where the di- 
 vision of jurisdiction between courts of law and courts 
 of chancery is still maintained, it can only be done by 
 proceedings on the law side of the court."' 
 
 Equitable Rights not Garnishnble under Proceeding at Law. 
 
 § 154. In those states in which garnishment is held 
 to be a purely legal proceeding, and perhaps in some 
 
 13 s See ante, § 75. 
 
 136 .Tenness v. Wharff, 87 Me. 307, 32 Atl. 908. 
 
 137 Hassie t. God Is With Us Congregation, 35 Cal. 378. Compare 
 linowles V. Herbert, 11 Or. 54, 240, 4 Pac. 126; Universal Ins. Co. v. 
 Tabor, 16 Colo. 531, 27 Pac. 891; Woodrnff v. McDonald Furniture 
 Co. (Ga.) 23 S. E. 195. 
 
 138 U. S. V. Swan, 13 C. C. A. 77. 65 Fed. 647. 
 
 (18T) 
 
§ 154 LAW OF GARNISHMENT. [Ch. 6 
 
 others, the garnishee can be charged only for such ob- 
 ligations as would enable the defendant to maintain 
 an action of debt, or indebitatus assumpsit,^'" in his 
 own name; ^*'' and merely equitable claims cannot be 
 attached by garnishment/*^ Upon this principle it 
 has been held that when the garnishee owes the de- 
 fendant, if at all, only in respect to an unliquidated 
 partnership account, the amount could only be ascer- 
 tained by an accounting in equity, and therefore can- 
 not be attached by garnishment/*^ When garnish- 
 is » Hassle v. God Is With Us Congregation, 35 Cal. 378; Redoncio 
 Beach Co. v. Brewer, 101 Cal. 322, 35 Pac. 896; Webster v. Steele, 7.5 
 111. 544; Lundie v. Bradford, 26 Ala. 512; Teague v. Le Grand, 85 
 Ala. 493, 5 South. 287. 
 
 110 Hoyt V. Swift, 13 Vt. 133, 37 Am. Dec. 586; Nims v. Ford, 159 
 Mass. 575, 35 N. E. 100; Webster v. Steele, 75 111. 544; Perea v. Colo- 
 rado Nat. Bank (N. M.) 27 Pac. 322. 
 
 1*1 May V. Baker, 15 111. 89; Webster v. Steele, 75 III. 544; Hoyt v. 
 Swift, 13 Vt. 133, 37 Am. Dec. 586; Massachusetts Nat. Bank v. 
 Bullock, 120 Mass. 86; Chase v. Thompson, 153 Mass. 14, 26 N. B. 
 137; Nims v. Ford, 159 Mass. 575, 35 N. E. 100; Perry v. Thornton, 
 7 R. I. 15; Clark v. Farnum, Id. 174; Smith v. Milletts, 11 R. I. 528; 
 Harrell v. Whitman, 19 Ala. 138; Harris v. Miller, 71 Ala. 26; Gibson 
 T. National Park Bank, 98 N. Y. 87, 97; Williams v. Gage, 49 Miss. 
 777; Osborne v. Edwards, 11 N. J. Bq. 73; Hassle v. God Is With Us 
 Congregation, 35 Cal. 378; Redondo Beach Co. v. Brewer, 101 Cal. 
 322, 35 Pac. 896; Swann v. Summers, 19 W. Va. 115; Garland v. 
 Sperling (N. M.) 30 Pac. 925. 
 
 EQUITABLE REMEDIES ACQUIRED BY GARNISHMENT: 
 "It operates only on the legal rights of the defendant; such rights as, 
 by an action at law, he could in his own name enforce. * * * But 
 it is quite an error to suppose that, where a creditor succeeds in con- 
 demning legal assets, he is confined to legal remedies to render them 
 available. He may pursue whatever of equitable remedies any judg- 
 ment creditor may pursue, and, if there is an equity inhering in the 
 assets, that equity he may enforce." White v. Simpson (Ala.) 18 
 South. 151. See, also, ante, § 127. 
 142 Farwell v. Chambers, C2 Mich. 316, 321, 28 N. W. 859; Burn- 
 (iS8) 
 
Clr. 5] PROPERTY SUBJECT TO GARNISHMENT. § 155 
 
 ment is conducted as an equitable proceeding, no rea- 
 son appears why equitable rights may not thereby be 
 attached, as well as legal debts."^ 
 
 Debts and. Property Belonging to Part of the 
 Defendants. 
 
 § 155. It is everywhere recognized that, upon a 
 joint judgment against several persons, the individual 
 property of any one or more of them may be taken in 
 execution; for otherwise joint judgments would in 
 many cases be uncollectible, and in most cases worth 
 less than a judgment against any one of the defend- 
 ants. For the same reason it has generally been held 
 that a garnishee may be charged for a debt or property 
 belonging to any one or more of the defendants.^*^ 
 These decisuons have been departed from by the su- 
 preme court of Michigan, for the misapplied and un- 
 satisfactory reason that "these proceedings are purely 
 statutory, and cannot be extended by construction." "'^ 
 
 ham V. Hopkinsoii, 17 N. H. 259; Tread well v. Brown, 41 N. H. 12, 
 43 N. H. 290; Ives v. Vanscoyoe, 81 111. 120; Rycn v. Wyukoop, 148 
 Pa. St. 188, 23 Atl. 1002; Birtwhistle v. Woodward, 95 Mo. 113. 
 7 S. W. 465. Contra, Cox v. Russell, 44 Iowa, 556. 
 
 1*3 Candee v. Penniman, 32 Conn. 228; Cox v. Russell, 44 Iowa, 
 556; Burnham v. Doolittle, 14 Neb. 214, 15 N. W. 606; Root v. 
 Davis, 51 Ohio St. 29, 36 N. E. 669. Compare Brande v. Bond, 63 
 Wis. 140, 23 N. W. 101. 
 
 i4*Aultman, Miller & Co. v. Markley (Minn.) 63 N. W. 1078; 
 Thompson v. Taylor, 13 Me. 420; Stevens v. Perry, 113 Mass. 380; 
 Stone V. Dean, 5 N. H. 502; Caignett v. Gilband, 2 Yeates (Pa.) 35; 
 Locket V. Child, 11 Ala. 640. 
 
 1*5 Ford V. Detroit Dry-Dock Co., 50 Mich. 358, 15 N. W. 509; 
 Farwell v. Chambers, 62 Mich. 316, 28 N. W. 859. See, also, Brum- 
 well V. Stebbins, 83 Iowa, 425, 49 N. W. 1020. 
 
 The statutes have been amended since these decisions were rendered, 
 
 (189) 
 
§ 156 LAW OF GARNISHMENT. [Ch. 5 
 
 Debts and Property Belonging to the Defendant 
 and Others Jointly. 
 
 Individual Partners Have No Interest in Debts Due Partnership. 
 
 § 156. "At common law, a partnership stock be- 
 longs to the partnership, and one partner has no inter- 
 est in it but his share of what is remaining after all 
 the partnership debts are paid, he also accounting for 
 what he may owe the firm. Consequently, all the 
 debts due from the joint fund must be first discharged 
 before any partner can appropriate any part of it to his 
 own use, or pay any of his private debts; and a cred- 
 itor of one of the partners cannot claim any interest 
 but what belongs to his debtor." ^^^ "Until such set- 
 tlement, it would, of course, be imoossible to tell what 
 the interest of one of the partners in the firm property 
 was. The creditors of the firm, upon well-settled prin- 
 ciples, would first have to be paid out of the partner- 
 ship property, and the accounts between the partners 
 themselves would have to be adjusted, before the in- 
 terest of one of the partners could be ascertained. 
 The partnership effects might be wholly exhausted in 
 the payment of the partnership liabilities. The part- 
 nership might even be insolvent. On settlement of 
 
 so that now the garnishee may be charged for debts or property be- 
 longing to any or either of the defendants. Meigs v. Weller, 90 Mich. 
 629, 51 N. W. 681. See, also, Whitworth v. Pelton, 81 Mich. 98, 45 
 N. W. 500. 
 
 146 The above is quoted from the opinion of Chief Justice Parsons 
 in Pierce v. Jackson, 6 Mass. 242. 
 
 Creditors of A., B. & C, copartners, garnished debtors of A. & B., 
 copartners, and creditors of the last firm intervened as claimants. 
 Held, that judgment was rightly given in favor of the claimants. 
 Brumwell v. Stebbins, 83 Iowa, 425, 49 N. W. 1020. 
 (190) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 157 
 
 the partnership matters, the partner whose interest 
 was attached might turn out to be a debtor of the firm, 
 and entitled to nothing." ^" 
 
 Debts Due Partnerships not Garnishable in Suits against Individual 
 Partners. 
 
 § 157. In view of these considerations, and others 
 which might be suggested, it has generally been held 
 that, in actions against any person for his individual 
 debt, garnishees cannot be charged for any part of the 
 indebtedness they might owe to any partnership of 
 which the defendant is a member, so long as the affairs 
 of the partnership have not been finally settled; ^^^ 
 
 1*7 Brande v. Bond, 63 Wis. 140, 23 N. W. 101. 
 
 148 Fisk V. Herrick, 6 Mass. 271; Upham v. Naylor, 9 Mass. 490; 
 Hawes v. Waltham, 18 Pick. 451; Bulfinch v. Winchenbach, 3 Allen, 
 161; Stillings v. Young, 161 Mass. 287, 37 N. B. 175; Church v. Knox, 
 2 Conn. 514; Towne v. Leach, 32 Vt. 747; Bartleti^v. Woodward, 4G 
 Vt. 100; Markham v. Gehan, 42 Mich. 74, 3 N. W. 262; Dawson v. 
 Iron Range & H. B. Ry. Co., 97 Mich. 33, 56 N. W. 106; Singer v. 
 Townsend, 53 Wis. 126, 226, 10 N. W. 365; Myers v. Smith, 29 Ohio 
 St. 120; Lyndon v. Gorham, 1 Gall. 367, Fed. Cas. No. 8,640; Winston 
 V. Ewing, 1 Ala. 129, 34 Am. Dec. 768; Sweet v. Reed, 12 U. I. 121; 
 Brown v. Collins (R. I.) 27 Atl. 329; Barry v. Fisher, 39 How. Prac. 
 521; People's Bank v. Shryock, 48 Md. 427, 30 Am. Rep. 476; Thomas 
 V. Lusk, 13 La. Ann. 277; Ripley v. People's Sav. Bank, 18 111. App. 
 430; Johnson v. King, 6 Humph. (Tenn.) 233; Sheedy v. Second Nat. 
 Bank, 62 Mo. 17; PuUis v. Fox, 37 Mo. App. 592; Trickett v. Moore, 
 34 Kan. 755, 10 Pac. 147. 
 
 CLIPPINGS FROM DECISIONS: "It appears beyond question 
 that the principal defendants, together with the plaintiff and gar- 
 nishee defendant, are a copartnership, and that the indebtedness at- 
 tempted to be garnished is going to that firm ; and whether there is 
 any such indebtedness on the part of the garnishee defendant to the 
 principal defendants, or to either of them, cannot be ascertained with 
 any certainty until there has been an accounting and settlement of 
 the firm business, and an adjustment of the account of the garnishee 
 defendant with the firm, and such an accounting cannot be had at 
 
 (191) 
 
§ 157 LAW OP GARNISHMENT. [Ch. 5 
 
 and it is immaterial that the partnership exists only 
 for illegal purposes."" 
 
 law." Farwell v. Chambers, 62 Mich. 316, 28 N. W. 859. Compare 
 Birtwhistle v. Woodward, 95 Mo. 113, 7 S. W. 465. 
 
 "Such an application of the trustee process to the exercise of 
 chancery powers for the settlement of partnerships and other joint ad- 
 ventures would be impracticable, full of mischiefs, and could never 
 have been intended by the legislature. A separate creditor of one 
 partner or joint contractor could at any time, by the trustee process, 
 compel the application of partnership funds to the payment of the 
 separate debt of the partner (which the partner himself could not do 
 without fraud), or else force the partnership into a liquidation and 
 settlement of their affairs, in order to ascertain the several interests 
 of one partner. This would be unjust and intolerable." Towne v. 
 Leach, 32 Vt. 747, 756. 
 
 "It is well known that in partnerships the effects do not usually 
 belong to the partners equally, in proportion to their number. Some- 
 times one will advance the capital, which is to be returned, while the 
 other is to transact the business; and the profits, only, are to be 
 shared between them. The effects might be wanted, not only to 
 pay the partnership debts, but, on a settlement of the accounts, the 
 partner in the execution might be a -debtor to the partnership. If, 
 then, we consider them as tenants in common, and permit a creditor 
 to sell one-half to pay the separate debt of one partner, we shall, in 
 many instances, suffer the property of one man to be taken to pay the 
 debts of another, and give to a separate creditor of a partner a right 
 over the effects of a partnership, which such partner could not ex- 
 ercise; and, if the purchaser should be allowed to take possession of 
 the effects, he might dissolve or destroy the partnership. The only 
 mode of doing justice is to sell the interest of the partner, who is the 
 debtor in the execution; and, though this may be uncertain and dif- 
 ficult to come at, yet this can be no reason why a rule manifestly 
 unjust should be adopted." Church v. Knox, 2 Conn. 514. 
 
 A DEBTOR OP ONE FIRxAI CANNOT BE HELD AS GAR- 
 NISHEE OF ANOTHER, though there be a member common to both 
 firms. To allow this, it must be decided that the funds of one part- 
 nership may be applied to the payment of the debts of another. Lyn- 
 don V. Gorham, 1 Gall. 367, Fed. Cas. No. 8,640; Field v. JIalone, 102 
 Ind. 251, 1 N. E. 507; Ullman v. Eggert, 30 111. App. 310. 
 14(1 Crescent Ins. Co. v. Baer, 23 Pla. 50, 1 South. 318. 
 (192) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 159 
 
 Corporeal Pro^ierty of Partnership Garninhahle in Such Suits. 
 
 § 158. Applying the principle that the interest of 
 any member of a partnership may be levied upon or at- 
 tached and sold to satisfy his individual liability, such 
 levy or attachment being subject to all the rights of 
 the other partners and the creditors of the firm,"" 
 some of the courts, and in the very same cases which 
 decide and declare the doctrine above stated, have 
 held that garnishees may be charged for the interest 
 of the defendant in tangible property in the gar- 
 nishee's possession belonging to a partnership of which 
 the defendant is a member, for this the garnishee may 
 turn out in discharge of his liability, and it may then 
 be sold in the same manner as if originally taken upon 
 execution."^ 
 
 Partnership Credits or Property Garnishahle Indiscriminately in Such 
 Suits. 
 
 § 159. Some courts hold that there is nothing in 
 the nature of a debt or chose in action belonging to a 
 partnership which, so far as the question under discus- 
 sion is concerned, should distinguish it from tangible 
 personal property of the firm, and that during the life 
 of the firm of which the defendant is a member the 
 garnishee may be charged for any debt he owes the 
 firm to the extent of the defendant's interest in it ; the 
 burden being on the plaintiff to show what that inter- 
 est would be after all firm accounts are paid."'' 
 
 100 Atkins v. Sexton, 77 N. Y. 195; Snell v. Crowe, 3 Utah, 26, 5 
 Pac. 522. But see Hutchinson v. Dubois, 45 Mich. 143. 7 N. W. 714. 
 
 151 Winston v. Ewing, 1 Ala. 129; Myers v. Smith, 29 Oliio St. 120; 
 Tricliett v. Moore, 34 Kan. 755, 10 Pac. 147. See, also. Church v. 
 Knox, 2 Conn. 514. 
 
 152 Robinson v. Tevis, 38 Cal. 612; Day v. McQuillan, 13 Minn. 205 
 
 LAW GARNISH. 13 (193) 
 
§ 160 LAW OF GARNISHMENT. [Ch. 5 
 
 Interest of Partner after Dissolution and Accounting. 
 
 § 160. If the partnership has been dissolved, and 
 the affairs settled, so that it is certain just how much 
 is due the defendant after the partnership debts have 
 been paid, tlie reason for the rule stated at the first 
 
 (Gil. 192); Whitney v. Munroe, 19 Me. 42, 36 Am. Dec. 732; Thompson 
 V. Lewis, 34 Me. 167; Smith v. Cahoon, 37 Me. 281; Burnell v. Weld, 
 59 Me. 423; Parker v. Wright, 66 Me. 392; Hill v. Beach, 12 N. .T. Eq. 
 31, 33; Brown v. Bissett, 21 N. J. Law, 46; Schatzill v. Bolton, 2 
 McCord (S. C.) 478, 3 McCord (S. C.) 33, and 13 Am. Rep. 748; opinion 
 of Hosmer, J., in Church v. Knox, 2 Conn. 522; McCarty v. Emlen, 2 
 Dall. 277, 2 Yeates (Pa.) 190; Knerr v. Hoffman, 65 Pa. St. 126. But 
 see Ryon v. Wynkoop, 148 Pa. St. 188, 23 Atl. 1002. 
 
 PARTNERSHIP ACCOUNTS MUST BE FIRST PAID: When a 
 bank received a check drawn by one member of an insolvent firm 
 upon the firm account in payment of his individual debt to the bank, 
 and thereafter the bank was garnished in a suit against the firm, held, 
 that it should be charged for the money named in the check, for it 
 could not thus misapply the funds of the firm to the injury of its 
 creditors. Johnson v. Hersey, 70 Me. 74, 73 Me. 291. 
 
 ALL INTERESTED PERSONS MUST BE MADE PARTIES: 
 "It is settled law in this state that when one of the members of a 
 firm is sued for his individual debt, and a debtor of the firm is trus- 
 teed, notice of the fact must be given to the other members of the 
 firm, or a juugment charging the trustee will not be binding upon 
 them. Whether or not the trustee shall be charged, and, if so, for 
 how much, are questions in which they are interested, and in the 
 decision of which they have a right to be heard; and, if they do not 
 voluntarily appear and become parties to the suit, notice of its 
 pendency must be given to them, or a judgment charging the trus- 
 tee will not be binding upon them. All the assets of the firm, in- 
 cluding its credits, may be needed for the payment of the firm's debts; 
 and, if so, no portion of them can be applied to the payment of the 
 debt of one of its members. It is only his individual share, after 
 all the affairs of the firm have been fully settled, that can be taken 
 on a trustee process, and applied to the payment of his individual 
 debt." Henderson v. Cashman, 85 Me. 437, 27 Atl. 344. 
 
 Under a statute declaring that, under attachment upon the firm 
 property in an action against a member of the firm, the plaintiff 
 (194) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 161 
 
 of this title ceases, and thie rule siiould no longer 
 exist."' Wlien a partnership has been dissolved by 
 the death of one of the partners, debts due the late 
 partnership are held garnishable in suits against the 
 survivor."* 
 
 Suits against Inditidual for Firm Debt. 
 
 § 161. So, vi^here the debt on which the judgment 
 in the principal suit was rendered was a debt of the 
 partnership, but one of the partners was discharged on 
 a plea of infancy, neither the rule nor its reason ap- 
 plies, and the garnishee should be charged for the debt 
 he owed the firm; ""^ and the same is true of cases in 
 which the garnishee discloses liability to all the de- 
 fendants in the main action jointly, in which action 
 only part of such defendants were served with the 
 original process.^" 
 
 acquires simply a lien on the interest of the defendant therein, he 
 acquires no greater interest by garnishment. "Where, under the pro- 
 cess of garnishment, all parties are before the court, and the proper 
 issues are joined for the determination of the partner's interest, it 
 may not be necessary to resort to a separate action in equity to de- 
 termine the partner's interest." Cox v. Russell, 44 Iowa, 556. 
 
 153 Harlan v. Moriarty, 2 G. Greene (Iowa) 486; Birtwhistle v. 
 Woodward, 95 Mo. 113, 7 S. W. 465. 
 
 Held, that money belonging to a late firm of three may be gar- 
 nished in a suit against a new firm composed of two of the former 
 and another person. Burnell v. Weld. 59 Me. 423. 
 
 154 Berry v. Harris, 22 Md. 30; Knox v. Schepler, 2 Hill (S. C.) 595. 
 16 5 Bethel V. Judge of Superior Court, 57 Mich. 379, 24 N. W. 112. 
 
 Compare Sutro v. Bigelow, 31 Wis. 527; Allison v. Chicago, B. & Q. 
 Ry. Co., 70 Iowa, 209, 40 N. W. 813. 
 
 150 Thomas v. Brown, 07 Md. 512, 10 Atl. 713. 
 
 Suit being brought against one partner on a partnership demand, 
 and debtors of the partnership being garnished, held, that the gar- 
 nishment was properly sustained, the other partner being afterwards 
 
 (195) 
 
§ 162 I,AW OF GARXISHME.NT. [Ch. 5 
 
 Debts Due Joint Creditors not Partners. 
 
 § 162. The objections urged against charging gar- 
 nishees for debts they may owe to partnerships of 
 which the defendant is a member do not apply with 
 equal force when the persons owning the debt are not 
 partners, but only joint owners. Some of the deci- 
 sions distinguish such cases, and, while admitting that 
 the garnishee could not be charged for any debt he 
 might owe a partnership of which the defendant is a 
 member, yet hold that he may be charged for the in- 
 terest of the defendant in any debt owing by the gar- 
 nishee to him and another jointly, they not being part- 
 ners.^" 
 
 joined in tlie original suit by amendment. Peabody v. Maguire, 79 Me. 
 572, 12 Atl. 630. 
 
 167 Whitney v. Munroe, 19 Me. 41', 3(5 Am. Dec. 732; Miller v. Rich- 
 ardson, 1 Mo. 310; ThorndUie v. De Wolf, H Pick. 120; Simmons v. 
 Carmichael (Tex. Civ. App.) 28 S. W. (590; Bolter v. Girton (Iowa) 61 
 N. W. 919. Compare Hawes v. Waltham, IS Pick. 451; Brown v. 
 Collins (K. I.) 27 Atl. 329; French v. Kogers, 16 JN. H. 177. 
 
 "No provision is made by this statute to reach a promissory note, or 
 other promise for the payment of money which belongs jointly to the 
 defendant and a third person. It was held in Markham v. Gehan, 42 
 Mich. 74, 3 N. W. 262, that the process of garnishment would not 
 reach a demand due in part only to the principal defendant. » » * 
 The proceeding in garnishment must be governed by equitable prin- 
 ciples, and it never can be done in this proceeding or any other until 
 all persons, whether natural or artiticial, who have substantial inter- 
 ests in the property, have been in some manner properly brought be- 
 fore the court." Kennedy v. McLellan, 76 Mich. 598, 43 N. W. 643. 
 
 "As our statutes now stand, the court has no power to remedy these 
 Inconveniences, nor could we prevent this process from injuriously 
 affecting Colton if we were to apply It to this debt. Legislation might 
 regulate it. The courts of New Hampshire have so ruled. Hanson v. 
 Davis, 19 N. H. 133. The plaintiff claims that the decision in Bartlett 
 V. Wood, 32 Vt. 372, that the undivided half of a debtor's interest in a 
 chattel in the hands of the trustee may be taken on trustee process 
 (196) 
 
Ch. 6] PROPERTY SUBJECT TO GARNISHMENT. § 163 
 
 Choses in Action in the Garnishee's Possession. 
 
 Not Liable to Common-Law Process. 
 
 § 163. At common law, choses in action were not 
 subject to seizure and sale on execution, and this rule 
 still prevails except where changed by statute.^^' 
 Considering this fact and the fact that no money judg- 
 ment can be rendered against the garnishee except 
 when he is charged as debtor,^"*" and that, when he is 
 charged because of his possessing defendant's prop- 
 erty, he discharges himself by surrendering the prop- 
 erty to the sheriff, who then proceeds and sells it in 
 the same manner as if taken on execution, it would 
 seem to follow of necessity that, where the common- 
 law rule above stated prevails, the garnishee could 
 never be charged on account of any choses in action in 
 his hands.^"" 
 
 inTOlves the principle for which he here contends. We think not. 
 There is an obvious difference between the rights of a joint owner 
 of a chose in action and a chattel in the possession of another. * * ' 
 The trustee of the chattel has only to deliver It to the sheriff, and he 
 sells the undivided half." Fairchild v. Lampson, 37 Vt. 407, 410. 
 
 The husband's interest in the undivided proceeds of land owned by 
 husband and wife, and held by entirety, can be garnished in a suit 
 against the husband. B"ogleman v. Shively, 4 Ind. App. 1<J7, 30 N. E. 
 909. reversing, ou rehearing, same case reported in 27 N. E. 873. 
 Money due the defendant and another for cheese sold with direc- 
 tions to pay a moiety to each of the joint owners is garnlshable. 
 Piper v. Hanley, 48 Vt. 479. 
 
 168 Preem. Ex'ns, § 112. 
 
 169 Wilson V. Albright, 2 G. Greene (Iowa) 125. See, also, post, 
 § 393. 
 
 180 Sargeant v. Leiand, 2 Vt. 277; Pitch v. Waite, 5 Conn. 117; 
 Grosvenor v. Parmers' & Mechanics' Bank, 13 Conn. 104; Price v. 
 Brady, 21 Tex. 614. 
 
 (197) 
 
§ 164 LAW OF GARNISHMENT. [*-"'• ^ 
 
 Not vnthin Terms of Garnishment Statutes. 
 
 § 164. But, when the question was presented to the 
 courts for decision in states where this rule still pre- 
 vailed, they took occasion to go further, and declare 
 that choses in action did not come within the terms of 
 the section of the statute declaring what property in 
 the garnishee's hands would render him chargeable. 
 Thus, it was held that choses in action are not "chat- 
 tels," "^ and are not included in the terms "goods, ef- 
 fects, or credits." "^ Following these and similar 
 cases, we find a long array of decisions holding that a 
 garnishee can never be charged on account of promis- 
 sory notes or other choses in action in his possession 
 belonging to the defendant.^"^ These decisions have 
 no application to cases in which the debtor is in posses- 
 
 i«i Maine Fire & Marine Ins. Co. v. Weelts, 7 Mass. 438. 
 
 "At common law, stock in a corporation was not subject to levy or 
 attachment. Tlie share of stock was neither a cliattel nor a chose In 
 action." Norton v. Norton, 43 Ohio St. 509, 3 N. E. 348, 351. 
 
 16 2 Perry v. Coates, 9 Mass. 537. 
 
 "THE WORD 'CREDITS' is of ambiguous meaning, and therefore 
 requires exposition. It might mean debts due from the trustee him- 
 self to the principal, or debts due other persons, the evidence of 
 which was deposited with or intrusted to the trustee. It has been de- 
 termined to mean the former only, and this because, on examination 
 of the provisions of the law, it was manifest such was the intention 
 of the legislature." Lupton v. Cutter, 8 Pick. 298. Contra, Deering 
 V. Richardson-Kimball Co. (Cal.) 41 Pac. 801. 
 
 16.1 Dickinson v. Strong, 4 Pick. 57; Andrews v. Ludlow, 5 Pick. 
 28; Lupton v. Cutter, 8 Pick. 298; Gore v. Clisby, Id. 555; Guild v. 
 Holbrook, 11 Pick. 101; Hopkins v. Ray, 1 Mete. (Mass.) 79; Meacham 
 V. McCorbitt, 2 Mete. (JIass.) 352; Lane v. Felt, 7 Gray, 491; Han- 
 cock V. Colyer, 99 Mass. 187, 96 Am. Dec. 730; Knight v. Bowley, 117 
 Mass. 551; Moors v. Goddard, 147 Mass. 287, 17 N. E. 532; Winslow 
 V. Fletcher, 53 Conn. 390, 4 Atl. 250; Tweedy v. Bogart, 56 Conn. 319, 
 15 Atl. 374; New Hampshire I. F. Co. v. Piatt, 5 N. H. 193; Fletcher 
 v. Fletcher, 7 N. H. 452, 28 Am. Dec. 359; Howland v. Spencer, 14 
 (IDS) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 165 
 
 sion of the written evidence of his debt, for then he 
 may be charged as debtor, regardless of the writing."* 
 
 When Subject to Execution are Garnishable. 
 
 § 165. The reasons given in these decisions do not 
 disclose any objections to charging the garnishee for 
 choses in action in his possession in states where they 
 may be taken and sold under execution. Although 
 the courts, in the decisions above referred to, make 
 these statements arguendo, it is evident that the true 
 reason for the decisions is the fact that, even if carried 
 to judgment against the garnishee, the proceedings 
 would be futile, because choses in action could not be 
 sold by the sheriff when surrendered. In those states 
 in which, by statute, choses in action may be sold un- 
 
 N. H. 530; Scofield t. White, 29 Vt. 330; Van Amee v. Jackson, 35 
 Vt. 173; Fuller v. .Jewett, 37 Vt. 473; Jones v. N orris, 2 Ala. 526; 
 Marston v. Oarr, 16 Ala. 325; Pearce v. Shorter, 50 Ala. 318; Levi- 
 sohn V. Waganer, 70 Ala. 412; Craft v. Sommersoll, 93 Ala. 430, 9 
 South. 593; Kaignel v. McConnell, 'la Pa. St. ;!(i2; Allen v. Erie City 
 Bank, 57 Pa. St. 129; Taylor v. Huey, lOr, Pa. St. 518, 31 Atl. 199; 
 Eundlet v. Jordan, 3 Me. 47; Copeland v. Weld, 8 Me. 411; Clark v. 
 Vlles, 32 Me. 32; Wilson v. Wood, 34 Me. 123; Smith v. Kennebec & 
 P. Ry. Co., 45 Me. .547; Skowhegan Bank v. Parrar, 46 Me. 293; 
 Bowker v. Hill, GO Me. 172; Price v. Brady, 21 Tex. 614; Taylor v. 
 Gillian, 23 Tex. 508; Tirrell v. Canady, 25 Tex. 455; Ellison v. Tuttle, 
 20 Tex. 283; Carter v. Bush, 79 Tex. 29, 15 S. W. 107; Moore v. Pil- 
 low, 3 Humph. (Tenn.) 448; Hanaford v. Hawkins (R. I.) 28 Atl. 605; 
 Morton v. Grafflin, 68 Md. 545, 15 Atl. 298. 
 
 CHANCERY GARNISHMENT: In such cases all the benefits of a 
 garnishment may, on proper showing, be obtained by bill in equity. 
 McCann v. liandall, 147 Mass. 81, 17 N. E. 75. 
 
 BANK BILLS CURRENT AS MONEY may be attached by gar- 
 nishing the holder, Lovejoy v. Lee, 35 Vt. 430; Morrill v. Brown, 15 
 Pick. 173; not so when they have ceased to be current by being dis- 
 honored, Perry v. Coates, 9 Mass. 537. Compare Wildes v. Nahant 
 Bank, 20 Pick. 352. 
 104 Moursund v. Priess, 84 Tex. 554, 19 S. W. 775. See ante, § 130. 
 
 (199) 
 
§ 165 LAW OF GARNISHMENT. [Ch. 5 
 
 der execution, the above decisions have been very gen- 
 erally disregarded, and garnishees charged for choses 
 in action in their possession belonging to the defend- 
 ant; "° and the garnishment statutes in many of these 
 
 165 Smitb V. Traders' Nat. Bank, 74 Tex. 457, 12 S. W. 113; Stevens 
 V. Dillman, 80 111. 233; Puget Sound Nat. Bank v. Mather (Minn.) 62 
 N. W. 396; Edwards v. Beugnol, 7 Cal. 162; Ueering v. Richardson- 
 Kimball (3o. (Cal.) 41 Pac. 801; Gillett v. Cooper, 48 Kan. 632, 30 Pac. 
 13; Kenosha Stove Co. v. Shodd, 82 Iowa, 540, 48 N. W. 933; Coombs 
 V. Davis, 2 Wash. T. 466, 7 Pac. 860. 
 
 CLIPPINGS FROM DECISIONS: "The only other point raised on 
 the argument which it is necessary to examine is whether these 
 bonds are the subject of the garnishee process. Our statute is broad, 
 and covers 'property, money, and effects.' That these bonds were 
 'property,' in the ordinary signification of the term, we think, cannot 
 be doubted. That the railroad company considered them as property, 
 and valuable, too, is evident from the fact that it proposed to turn 
 them out in satisfaction of its debts, at ninety-five cents on the dol- 
 lar. * * * In the New England States, where substantially the 
 same remedy exists under different names, there have been decisions 
 holding that notes and choses in action were not the subject of the 
 trustee process (8 Pick. 298; 9 Mass. 537); but their statutes will be 
 found to be essentially different from our own, and much more lim- 
 ited in terms, confining the process to goods, moneys, and effects. 
 So, also, by their statutes, is property that may be levied on by writ 
 of execution more limited in kind than is subject to that process here. 
 * ♦ * These bonds are evidences of debt, and are clearly the sub- 
 ject of attachment, whenever the officer can find them so as to take 
 them into his possession; and, there being nothing in the nature of 
 the property itself which exempts It from process of execution or at- 
 tachment, no valid reason can be given why it should not be reached 
 by this process, which is, in effect, but another form of attachment, 
 and intended to reach a class of cases In which the ordinary writ is of 
 no avail. * * « In short, it is not credible that the legislature in- 
 tended to place the large amounts of property of this class that are 
 held in every community beyond the reach of creditors, and exempt 
 it from payment of debts; and yet such would be the practical effect 
 of giving the construction to the statute contended for by the counsel 
 for the respondent." Banning v. Sibley, 3 Minn. 389 (Gil. 282, 298). 
 "The counsel tor the garnishees claim that, even under the attach- 
 (200) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 166 
 
 states contain sections providing that garnisliees may 
 be charged therefor."" 
 
 Immaterial to Whom Payable. 
 
 § 166. If the chose in action belongs to the defend- 
 ant, the fact that it is payable only upon his order/"' 
 or upon the order of a third person/"' constitutes no 
 objection to charging the garnishee therefor. 
 
 ment law, it cannot be presumed the legislature intended to abrogate 
 the common-law rule, and subject a chose in action to levy and sale 
 on execution. However this may be, it is very certain tnat the officer 
 might seize the draft on the attachment; and, if he could not sell it on 
 execution or under an order of court, he had ample authority to pro- 
 ceed and collect it. This is very obvious from the provisions above 
 referred to. Upon this point we were referred to some decisions 
 which hold that a bond, note, or other chose in action is not liable to 
 attachment; but we cannot adopt them as correct expositions of the 
 law, on account of the dissimilarity between the statutes under which 
 these decisions were made and our own upon this subject. Our stat- 
 ute renders liable to attachment and to garnishment on execution 'the 
 property, credits and effects' of the debtor in the hands or possession 
 of a third person; and this language is sufficiently broad and compre- 
 hensive to include a draft or other chose in action." Storm v. Cotz- 
 hausen, 38 Wis. 139. Approved and affirmed in La Crosse Nat. Bank 
 V. Wilson, 74 Wis. 391, 397, 43 N. W. 153. 
 
 STUCK IN A FOREIGN COKPOUATION cannot be attached by 
 summoning as garnishee the person having possession of the stock 
 certificates. Armour Bros. Banking Co. v. St. Loujs Nat. Bank, 113 
 Mo. 12, 20 S. VV. 090; Smith v. Downey, 8 Ind. App. 179, 34 N. E. 
 823, and 35 N. E. 568; Winslow v. Fletcher, 53 Conn. 390, 4 Atl. 250; 
 Morton v. Grafflin, 08 Md. 545, 13 Atl. 341; Tweedy v. Bogurt, 50 
 Conn. 419, 15 Atl. 374. CONTRA, Puget Sound Nat. Bank v. Mather 
 {Minn.) 02 N. W. 390; Young v. South Tredegar iron Co., 85 Tenn. 
 189, 2 S. W. 212. See, also, ante, § 109. 
 
 160 Norton v. Norton, 43 Ohio St. 509, 3 N. E. 348; Leighfon v. 
 Heagerty, 21 Minn. 42; Bank of State of Missouri v. Bredow, 31 Mo. 
 523; Fling v. Goodali, 40 N. H. 208. 
 
 167 Storm V. Cotzhausen, 38 Wis. 139; Moursund v. Priess, 84 Tex. 
 654, 19 S. W. 775. 
 
 108 Blser V. Kommel, 98 Mich. 74, 50 N. W. 1107. 
 
 (201) 
 
§ 167 LAW OF GARNISHMENT. [Ch. 5 
 
 Right to Collect and Appropriate — Judgment Record — Account 
 
 Books. 
 
 § 167. Neither the right to collect and appropriate 
 nor the possession of the best or only evidence to prove 
 the nature and amount of a chose in action necessarily 
 includes a possession of it in such a sense that it may 
 be attached by summoning as garnishee the person 
 holding such right or evidence. For example, a judg- 
 ment can be attached only by garnishing the judgment 
 debtor, and never by garnishing the officer holding the 
 official records of it.'"" A fortiori, ordinary debts on 
 account can be attached onlv by summoning the debt- 
 ors, and not by garnishing tlie person to whom they 
 have been assigned for collection or as security or oth- 
 erwise,^'" or who may be in possession of the defend- 
 
 169 Daley v. Cunningham, 3 La. Ann. 55; Hanna v. Bry, 5 La. Ann. 
 651, 52 Am. Dec. 606; Osborn v. Cloua. 23 Iowa, 104, 92 Am. Dec. 
 413; McBride v. Fallon, 65 Cal. 301, 4 Pac. 17. 
 
 A judgment cannot be attached by garnishing the attorney of rec- 
 ord for the judgment creditor. In re Plandrow, 84 N. Y. 1. 
 
 170 Ide V. Harwood. 30 Minn. 191, 14 N. W. 884; Hitchcock v. Eger- 
 ton, 8 Vt. 202; Fuller v. Jewett, 37 Vt. 473; Smith v. Wiley, 41 Vt. 
 19; Mayes v. Phillips, 60 Miss. 547; Deacon v. Oliver, 14 How. 610. 
 Compare Shaver Wagon & Carriage Co. v. Halsted, 78 Iowa, 730, 43 
 N. W. 623. 
 
 DOUBLE LIABILITY : "There is another objection to construing 
 the statute as authorizing the garnishment of debts by service upon 
 another than the debtor, and without notice to him. Such a method 
 of garnishment would often subject innocent debtors to great and un- 
 necessary hardship. Such a garnishment having been effected, the 
 debtor might innocently make payment to his creditor, and then be 
 compelled to pay a second time, through the enforcement of the gar- 
 nishee lien; for the garnishment, if effectual, attaches the debt, and 
 renders the debtor liable to the enforcement against him of the final 
 execution in the action." Ide v. Harwood, 30 Minn. 191, 14 N. W. 
 884. 
 
 (202) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 168 
 
 ant's books of account showing the nature and amount 
 of the debts."^ 
 
 The Written Evidence must he Connected with the Debt. 
 
 § 168. Those written evidences of debt which may 
 be regarded as indicia of title, such as notes, drafts, 
 bonds, stock certificates, and the like, which in ordi- 
 nary business transactions are required to be produced 
 
 171 ACCOUNT BOOKS: Rosenthal v. Muskegon Circuit Judge, 98 
 Mich. 208, 214, 57 N. W. 112; Ide v. Harwood, 30 Minn. 191, 14 N. W. 
 884. 
 
 A bank took possession of the defendant's account books and stock 
 of goods under an assignment to it as security, arid, after it had ob- 
 tained satisfaction of its claim from the proceeds of goods taken under 
 such assignment, and sold, was summoned as garnishee. The court 
 held that the garnishee could be charged for the books and accounts, 
 but that it was not liable for moneys collected by the defendant after 
 the indebtedness to the bank had been satisfied, and after the bank 
 had relinquished the books of account to the defendant, the assign- 
 ment not being fraudulent, and the bank having acted in good faith. 
 Mitchell V. Green, 62 N. H. 588. 
 
 Under a statute authorizing othcers having writs of attachment for 
 service to seize the defendant's books of account and other evidences 
 of indebtedness, and summon as garnishees every person appearing 
 thereby to be Indebted to him, and providing that all debts and choses 
 in action shall be bound by such attachment "from the date of the 
 service thereof," an officer having a writ in favor of A. seized certain 
 books of account and a promissory note, and afterwards levied upou 
 the same property in favor of B., who gave him a list of persons to be 
 garnished, including the maker of the note. The officer summoned 
 the maker of the note under B.'s writ, and four days afterwards sum- 
 moned him under A.'s writ, whereupon the maker ot the note paid the 
 amount thereof into court, and was discharged. The court held that 
 the sheriff was not required to summon all persons appearing to be 
 indebted, but only such as the plaintiff directed; that the debts were 
 attached, not by the seizing of the books, but by the summoning- of 
 the debtors, and that B. was entitled to the money. Boone v. Mcin- 
 tosh, 62 Miss. 744. 
 
 (203) 
 
§ 169 LAW OF GARNISHMENT. [Ch. 5 
 
 whenever the debt or demand represented thereby is 
 paid or transferred, and without which men of ordi- 
 nary prudence would not deal, are the only instru- 
 ments which are so intimately connected with the de- 
 mands charged therein that the seizure of them can be 
 regarded as equivalent to a seizure of the debt or de- 
 mand itself, and therefore these only can be attached 
 by garnishment.^'^ 
 
 Mortgaged, Pledged, and Incumbered Property. 
 
 Who Holds Legal Title. 
 
 § 169. In some states an unforeclosed chattel mort- 
 gage is a mere lien, and the legal title remains in the 
 mortgagor after condition broken until the property is 
 sold on foreclosure sale."' In other states the mort- 
 gagee is held to have the legal title from the time the 
 mortgage is given, and the mortgagor has merely the 
 equity of redemption."* 
 
 ITS ide V. Harwood, 30 Minn. 191, 14 N. W. 884. See, also, above 
 cases. 
 
 A United States voucber is gamishable as a chose in action. Leigh- 
 ton V. Heagerty, 21 Minn. 42. 
 
 Insurance policies upon which holder as assignee has sued the 
 insurance company are garnishable in assignee's hands in suit 
 against assignor to reach his residuary interest. McDonald v. 
 Creager (Iowa) G5 N. W. 1021. 
 
 An assignee of stock, held to have a claim superior to one garnish- 
 ing the person having possession of the certificate. Younkin v. Col- 
 lier, 47 Fed. 571. 
 
 178 Wilson v. Montague, 57 Mich. 638, 24 N. W. 851; Knowles v. 
 Herbert, 11 Or. 54, 240, 4 Pac. 126. 
 
 174 For an extended review of the decisions on this subject, see 
 Jones, Chat. Mortg. 699-703. 
 (204) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 170 
 
 Mmigagor^s Equitable Interest not Ganvishahle. 
 
 § 170. Where the latter view obtains, it is neces- 
 sary, in deciding whether property belonging to the 
 defendant, but subject to a mortgage, can be reached 
 by a garnishment, to consider whether in that state 
 equitable claims may be attached by garnishment."'* 
 If the mortgagor has but an equity of redemption, the 
 legal title being in the mortgagee, and garnishment be 
 considered as a purely legal proceeding by which equi- 
 table rights cannot be attached, it would seem to fol- 
 low logically that a mortgagor's interest cannot be at- 
 tached by garnishment. Some of the courts seem to 
 have accepted this doctrine,"" and it has been gener- 
 ally declared by text writers."' 
 
 175 See ante, §§ 153, 154. 
 
 176 Dietei- v. Smith. 70 111. 168. 
 
 GOODS HELD IN PLEDGE: Held, that the pledgee of goods can- 
 not be charged as garnishee of the pledgor for any property taken 
 in pledge. Hudson v. Hunt, 5 N. H. 538; Whitney v. Dean, 5 N. H. 
 249; Patterson v. Harland. 12 Ark. 158; Picquet v. Swan, 4 Mason, 
 443, Fed. Gas. No. 11,133. CONTRA, Ellis v. Goodnow, 40 Vt. 237. 
 It is generally agreed that the title to property does not pass to the 
 pledgee by virtue of the pledge, and therefore the argument above 
 stated could have no bearing in such cases. W^illiams v. Gallick, 11 
 Or. 337, 3 Pae. 469. Probably, the true reason for most, if not all, 
 of the decisions seeming to support this doctrine, was the inability of 
 the courts to see how the garnishment could be made effectual and 
 the rights of all the parties preserved intact. 
 
 ITT Drake, Attachin. § 539; V^ade, Attachm. § 440; Freem. Ex'ns, § 
 117. 
 
 These writers rely principally upon the cases above cited, and Bad- 
 lam V. Tucker, 1 Pick. 389, 11 Am. Dec. 202; Haven v. Ix)W, 2 N. H. 
 13, 9 Am. Dec. 25; Holbrook v. Baker, 5 Me. 309, 17 Am. Dec. 23<i. 
 But see Arnold v. Elwell, 13 Me. 261. 
 
 "In some cases our trustee process might furnish a remedy; as 
 where, by agreement of parties, the pawn or mortgaged property is 
 
 (205) 
 
§ 171 LAW OF GARNISHMENT. [Ch. 5 
 
 Mortgagor's Equitable Interest Garnishahle. 
 
 § 171. But other courts which have not declared 
 equitable rights generally attachable by garnishment, 
 although appreciating the logic of this doctrine, dis- 
 covered its iniquity also, and refuse to adopt it. The 
 supreme court of Nebraska says: "The only remaining 
 question is whether the judgment debtor's equity of 
 redemption, or interest in the two promissory notes, 
 could be reached and held by the process of garnish- 
 ment. It must be conceded that, according to most 
 of the cases bearing upon this question, it could not. 
 Wait, Act. & Def. 422, 423. Following this genera) 
 current of authorities, we held in Peckinbaugh v. Quil- 
 len, 12 Neb. 586, 12 N. W. 104, that it is only where a 
 mortgagor of goods has the right of possession for a 
 definite period that he has an attachable interest in 
 them. This rule did not influence the result of that 
 case, however, for the reason that the property was 
 insufficient to satisfy the mortgage debt. But in view 
 of our attachment law, the ruling of the supreme court 
 of Ohio on a statute from which ours was copied, and 
 upon more mature reflection, we are now satisfied that 
 whatever interest a mortgagor of chattels may have 
 in them in this state may be reached by seizure under 
 a writ of attachment at any time while in his posses- 
 sion, and by means of the process of garnishment, if 
 they have passed into the hands of the mortgagee; and 
 
 sold by the pawnee or mortgagee, and a surplus remains over the 
 debt secured. But, where there is no agreement that the mort- 
 gagee shall sell the mortgaged property, he could not be compelled 
 to do it, and w^ould not be chargeable as trustee." Badlam v. Tucker, 
 supra; Adams v. Wheeler, 10 Picli. 199. 
 (2Q6) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 172 
 
 to this extent our opinion in the case of Peckinbaugh 
 V. Quillen must be modified." "^ 
 
 Nature of Judgment for Mortgayor''8 Interest. 
 
 § 172. Eliminating this question, we may consider 
 together mortgaged property and property otherwise 
 incumbered. When the mortgagee or pledgee is in 
 possession, and is made the garnishee, no money judg- 
 ment can be rendered against liim for the difference 
 between the amount of the secured debt and the esti- 
 mated value of the property. The only proper judg- 
 ment is that he surrender the property upon payment 
 or tender of the amount of his claim upon it, and that 
 for failure to do so on demand execution may be levied 
 on his own property to satisfy the plaintiff's judg- 
 ment."° If the plaintiff does not want such a judg- 
 es Burnham v. Doolittle, 14 Neb. 214, 15 N. W. 606. To the same 
 effect, see Root v. Davis, 51 Ohio St. 29, 36 N. B. 669; Carthy v. 
 Fenstmaker, 14 Ohio St. 457; Torbert v. Hayden, 11 Iowa, 435, 444; 
 Davis V. Wilson, 52 Iowa, 187, 3 N. W. 52; Buck-Reiner Co. v. Beatty, 
 82 Iowa, 353, 48 N. W. 96; Smith v. Traders' Nat. Bank, 74 Tex. 457, 
 12 S. W. 113. 
 
 "Any other construction would enable a debtor, when sued, to put 
 all his choses in action beyond the reach of his creditors by transfer- 
 ring them in large amounts as collateral for insignificant sums which 
 he might borrow for that purpose." Chesapeake Guano Co. v. Sparks, 
 18 Fed. 281. 
 
 MORTGAGED SHIPS: Admitting that, before the mortgagee 
 takes possession, the interest of the mortgagor in property may be 
 attached by garnishment, a vessel, a mortgage upon which is duly 
 recorded as provided by act of congress, is not subject to garnishment 
 under the state laws, in an action against the mortgagor. Howe v. 
 Tefft, 15 R. I. 477, 8 Atl. 707. 
 17 See post, § 393. 
 
 MORTGAGE TO BE PAID BEFORE JUDGMENT: Held, that 
 the proper practice Is to continue the garnishment suit until the se- 
 
 1207) 
 
§ 173 LAW OF GARNISHMENT. [Ch. 5- 
 
 ment, but desires the property sold under the direction 
 of the court, the expenses of the sale cannot be char- 
 ged against the property, to the detriment of the in- 
 cumbrancer; ^'*'' and the property can be offered for 
 sale only in gross or subject to the lien, for no sale can 
 be made unless a greater sum than the amount of the 
 lien can be realized, and the outcome of a sale in par- 
 cels cannot be known when the sale is begun/*^ 
 
 Duties of Mortgagee as Garnishee. 
 
 § 173. If, for the purpose of satisfying his claim, 
 the lienholder proceeds under his right to sell, he is 
 not bound to obtain the highest possible price for the 
 goods, but he must exercise common business prudence 
 and good faith in the conversion of them, and, to the 
 extent of his failure to do so, he is liable to the gar- 
 cured debts are satisfied, and then require the garnishee to malje a 
 supplemental answer showing the surplus. Carter v. Bush, 79 Tex. 
 29, 15 S. W. 167. 
 
 "If the creditor claims that there is a surplus of propertj-. he must 
 redeem it by paying off the lien of the trustees." McGregor v. 
 Chase, .37 Vt. 225. In that manner he may attach the defendant's 
 interest. Perrin v. Russell, 33 Vt. 44. 
 
 180 Smith V. Menominee Circuit Judge, 53 Mich. 560, 19 N. W. IS-t. 
 
 181 Smith V. Menominee Circuit .Tudge. 53 Jlich. 500. 19 N. W. 184. 
 
 SALE FOR LESS THAN MORTGAGE: The garnishee mort- 
 gagee is entitled to the payment of his claim or the return of his 
 .security; and, if the plaintiff causes the security to be sold for less 
 than the mortgage, the court should give judgment against him in 
 favor of the mortgagee for the difference. McDouald v. Faulkner, 
 154 Mass. 34, 27 N. E. 883. 
 
 DISPENSING WITH SALE BY PROVING VALUE: When it 
 appears without dispute that the property is not sufficient to satisfy 
 valid incumbrances, there is no error in discharging the garnishee 
 without attempting a sale. Boston Loan & Trust Co. v. Organ, 53 
 Kan. 380, 36 Pac. 733. 
 (208) 
 
Ch. 5] PROPEUTY SUBJECT TO GARNISHMENT. § 173 
 
 nishing creditor.^'^ The burden is on the garnishee 
 claiming the lien to show in such cases that he has 
 properly discharged his duty to the plaintiff in con- 
 ducting the sale.^*^ 
 
 182 Merchants' & Manufacturers' Bank v. William A. Baeder Glue 
 Co., 164 Pa. St. 1, 30 Atl. 290. 
 
 A gai-nistiee, holding five insurance policies, by assignment, as 
 security for $2,614.10, had brought suit on the same, and the court, 
 entertaining the garnishment, ordered that he proceed to collect the 
 same, and, after paying his own claim and expenses, apply the bal- 
 ance to the satisfaction of the plaintiffs' judgment. Upon an order 
 to the garnishee to account for the money collected, the court held 
 that under the former order the garnishee was authorized to con- 
 tract and pay necessary expenses, but that he could not bind the 
 fund by contracting other or greater expenses, and that, if he 
 agreed to pay more than reasonable fees, the amount in excess of 
 pi'oper fees must be paid by himself personally, and could not be 
 charged against the fund. McDonald v. Greager (Iowa) (Jo N. W. 
 1021. 
 
 FORECLOSURE AFTER GARNISHMENT: After the garnish- 
 ment, the mortgagee cannot foreclose, and thus defeat the attach- 
 ment, and obtain absolute title before the plaintiff can get the case 
 to a hearing. Ilobart v. Jouvett, 6 Cusli. 105. Compare Spencer v. 
 Moran, 80 Iowa, 374, 45 N. W. 902. Held, that the garnishee may 
 be restrained from enforcing his lien. Gary v. Brown, 33 111. App. 
 435. 
 
 ESTOPPEL BY ACQUIESCENCE: The plaintiff is not estoijped 
 by permitting the mortgagee to take possession and dispose of the 
 property, nor by a twenty-months silence thereafter. Sanger v. 
 Guenther, 73 Wis. 354, 41 N. W. 036. 
 
 183 Indianapolis Bank v. Armstrong, 101 Ind. 244. But see Men- 
 sing V. Engelke, 67 Tex. 532, 4 S. W. 202. 
 
 It is not sufficient that the property was sold at a sacrifice. The 
 garnishee Is not chargeable unless it appears that, if sold properly, 
 there would have been a surplus after paying the mortgages. Hawks 
 V. Sawyer, 38 Vt. 99. 
 
 LAW GARNISH. — 14 (209) 
 
§ 174 LAW OF GARNISHMENT. L^^^- "^ 
 
 Plaintiff Only Acquires Dejendanfs Interest. 
 
 § 174. The garnishment only secures to the plain- 
 tiff the interest of the defendant in the, property, sub- 
 ject to all valid claims upon it.^^* Whatever is left 
 after the secured debts are paid or satisfied the plain- 
 tiff is entitled to, and no more; ^^^ but the fact that 
 
 18* Outcalt V. During, 25 N. J. Law, 443; Smith v. Menominee 
 Circuit Judge, 53 Micli. 560, 19 N. W. 184; Weed v. Mericls:, 62 Mich. 
 414, 29 N. W. 78; Coolej' v. Minnesota Transfer Ry. Co., 53 Minn. 327, 
 55 N. W. 141; Williams v. Gallick, 11 Or. 337, 3 Pac. 469; Hawthorn 
 V. Unthank, 52 Iowa, 507, 3 N. W. 518; Howe v. Jones, 57 Iowa, 130, 
 8 N. W. 451. 
 
 PREMATURE SEIZURE— CONVERSION: It does not matter 
 who has possession, and premature seizure of the property by the 
 mortgagee will not render him liable for a conversion of the whole, 
 nor for the value of the property over the mortgage before he has 
 disposed of It, but only for the balance after his debt is paid. Dag- 
 gett V. McClintock, 56 Mich. 51, 22 N. W. 105. 
 
 But when the mortgagee sold the property for part cash, and took 
 notes in his own name for balance, it was held to amount to a eon- 
 version which renders him liable to a money judgment for the balance 
 over his own claim. Smith v. Weaver, 41 Vt. 19. 
 
 MORTGAGE TO SEVERAL VALID AS TO ONE: When property 
 is assigned as security to the assignee and others, the assignee may hold 
 it against a garnishing creditor of the assignor, though no considera- 
 tion supports the assignment as to the others. Marks v. Anderson, 1 
 Colo. App. 1, 27 Pac. 168. 
 
 issDurling v. Peck, 41 Minn. 317, 43 N. W. 65; Cooley v. Minne- 
 sota Transfer Ry. Co., 53 Minn. 327, 55 N. W. 141; Little Wolf 
 River Imp. Co. v. Jackson. 66 Wis. 42, 27 N. W. 625; Warder v. 
 Baker, 07 Wis. 409, 30 N. W. 932; Bragunier v. Beck & Corbett 
 Iron Co., 41 Kan. 542, 21 Pac. 640; Norton v. Norton, 43 Ohio St. 
 509, 3 N. E. 348; Spencer v. Moran, 80 Iowa, 374, 45 N. W. 902; 
 McConnell v. Denham, 72 Iowa, 494, 34 N. W. 298; Chesapeake 
 Guano Co. v. Sparks, 18 Fed. 281. 
 
 INSUFFICIENT DESCRIPTION: One holding a mortgage on 
 "our books of accounts and accounts due and to become due" is not 
 entitled to priority to one bringing garnishment against one owing on 
 (210) 
 
■Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 174 
 
 the secured debt is not certain in amount will not de- 
 feat the garnishment; ^*° and, if the lien becomes di- 
 
 these accounts, for the reason that the description is insufficient. 
 Lawrence v. McKenzie, 88 Iowa, 432, 55 N. W. 505. 
 
 SECURITY LESS THAN SECURED DEBT: If the security is 
 less than the debt secured, the garnishee must be discharged. Hall 
 V. Page, 4 Ga. 429; Kergin v. Dawson, 6 111. 86; Puller v. Rhodes, 
 78 Mich. 36, 43 N. W. 1085; Younkin v. Collier, 47 Fed. 571; Bradley 
 V. Byerley (Kan. App.) 42 Pac. 930. 
 
 SALE BEFORE GARNISHMENT— SURPLUS: Any surplus after 
 satisfaction of the mortgage upon a sale made before the garnish- 
 ment belongs to the defendant, and is attached by the garnishment. 
 Hoffman v. Witherell, 42 Iowa, 89. 
 
 INSURANCE FOR MORTGAGEE: To the extent of his interest 
 In money due on a fire insurance policy payable to the mortgagee "as 
 his interest may appear," the claim of the mortgagee is paramount 
 to the claim of the garnishing creditor of the mortgagor. Mansfield 
 V. Stevens, 31 Minn. 40, 16 N. W. 455; Coykendall v. Ladd, 32 Minn. 
 529, 21 N. W. 733; Manson v. Phoenix Ins. Co., 64 Wis. 26, 24 N. W. 
 407. 
 
 MONEY DUB FOR WOOD CUT FROM MORTGAGED LAND 
 without the mortgagee's consent may be claimed by him against a 
 garnishing creditor of the mortgagor. Cotta v. O'Neal, 58 N. H. 572. 
 
 AN ATTORNEY'S LIEN for services is paramount to a subse- 
 quent garnishment of the judgment debtor in a suit against the judg- 
 ment creditor. Myers v. McHugh, 16 Iowa, 335; Gager v. Watson, 
 11 Conn. 168; Weed Sewing Mach. Co. v. Boutelle, 56 Vt. 570, 48 Am. 
 Kep. 821. Compare Ward v. Sherbondy (Iowa) O.j N. W. 413. 
 
 A STABLEMAN'S LIEN is , paramount to a garnishment served 
 upon him. Williamson v. Gayle, 7 Grat. (Va.) 152. 
 
 A COMMISSION MERCHANT'S LIEN, same. Bank v. Levy, 1 
 McMul. (S. C.) 4.S1. 
 
 A MORTGAGE ON RAILROAD TOLLS is superior to a subsequent 
 garnishment. Galena & C. U. Ry. Co. v. Menzies, 26 111. 122. But 
 see Johnston v. Riddle, 70 Ala. 219. 
 
 STOPPAGE IN TRANSITU cannot be defeated by garnishment in 
 a suit against the consignee. Chicago, B. & Q. Ry. Co. v. Painter, 15 
 Neb. 394, 19 N. W. 488. 
 
 186 Trunkey v. Crosby, 33 Minn. 464, 23 N. W. 846. 
 
 (211) 
 
§ 175 LAW OF GARNISHMENT. [Ch. 5 
 
 vested after the garnishment, the plaintiff acquires the 
 same rights as if no lien ever existed.^" The touch- 
 stone by which the liability of the garnishee is deter- 
 mined in these as in other cases is that the plaintiff 
 steps into the defendant's shoes, and acquires his 
 rights, — no more and no less/" 
 
 Actual Possession — Double Security — Right of Pos-tession. 
 
 § 175. He cannot require the mortgagee, as gar- 
 nishee, to take possession of the mortgaged property 
 for his benefit. It is the possession of the property of 
 the defendant which renders the garnishee liable, and 
 never the taking or holding of a mortgage upon it.'** 
 He cannot require the mortgagee to surrender one se- 
 curity, and look to another, when he has two.^°° If 
 
 187 Swett V. Brown, 5 Pick. 178. 
 
 If the pledgee waives liis lien, the objection does not lie in the 
 mouth of the general owner. Meeker v. Wilson, 1 Gall. 419, Fed. 
 Gas. No. 9,392. 
 
 188 See ante, § 46. 
 
 i89Polkerts v. Standish, 55 Mich. 4C3, 21 N. W. 891; Curtis v. 
 Raymond, 29 Iowa, 52; First Nat. Bank v. Perry, 29 Iowa, 266; Klg- 
 gins V. Woodke, 78 Iowa, 34, 34 N. W. 789; Farwell v. Wilmarth, 65 
 Wis. 160, 26 N. W. 548; Spitz v. Tripp, 86 Wis. 25, 56 N. W. 330; 
 Central Bank v. Prentice, 18 Pick. 390; Callender v. Furbish, 40 Me. 
 226. But see Emery v. Seavey, 148 Mass. 566, 20 N. E. 177. 
 
 ISO Scofield V. Sanders, 25 Vt. 181; Goddard v. Bridgman, 25 
 Vt. 351, 60 Am. Dec. 272; Morton v. Grafflin, 68 Md. 545, 13 Atl. 
 341, 345. 
 
 MARSHALING SECURITIES: The general principles of equity 
 in respect to marshaling apply in favor of the garnishing creditor to 
 the extent that a garnishee will be required to apply to the claim 
 having precedence to the garnishment money collected on one secu- 
 rity since the garnishment, so as to relieve the other in favor of the 
 garnishing creditor, rather than apply it on an after-acquired de- 
 mand of his own. Edgertou v. Martin, 35 Vt. 110. 
 (212) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 176 
 
 the defendant could not take it from his possiession 
 without satisfying his claim, the plaintiff caunot.^"*^ 
 
 Mortgagee's Rights not Increased or Impaired — Future Advances. 
 
 § 176. If the garnishee or any one else has a lien 
 on the property as against the defendant, he has the 
 same against the plaintiff; and, if he could claim none 
 against the defendant, he has none against the plain- 
 
 i»i Smith V. Menominee Circuit Judge, 53 Mich. 560, 19 N. W. 184; 
 Weed V. Mericli, 02 Mich. 414, 29 N. W. 78; Smith v. Clarice, 9 Iowa, 
 241; ICergin v. Dawson, 6 111. 86; Carter v. Bush, 79 Tex. 29, 15 S. 
 W. 167; Outcalt v. Durling, 25 N. J. Law, 443; Hawthorn v. Unthank, 
 52 Iowa, 507, 3 N. W. 518; Cheatham v. Seawright, 30 S. C. 101, 
 8 S. B. 526. 
 
 GIVING BOND NO WAIVER: The holder of property under 
 pledge does not waive his lien by giving bonds to prevent being dis- 
 possessed of the property. Outcalt v. Durling, 25 N. J. Law, 443. 
 
 RIGHT TO INTERFERE WITH MORTGAGEE'S POSSESSION: 
 Cooley, C. J.: "We have grave doubts of the right to take from a 
 mortgagee of chattels the property upon which he has a lien, except 
 where, for the protection of the rights of others, the necessity shall be 
 apparent. It is a serious interference with his contract rights. It is 
 a part of his security that the mortgage gives him authority to take 
 the property into his own possession; and nothing which may subse- 
 quently be done by or against the mortgagor can rightfully diminish 
 or affect this security. When a resort to legal remedies becomes 
 essential, all parties concerned may be required to submit to some 
 Inconvenience, and perhaps to sbme loss; but in a case where, as in 
 this case, the legal remedy is only sought fo' the purpose of reach- 
 ing a surplus after a lien is satisfied, and the lien holder is not con- 
 cerned in the controversy, it cannot be rightful to make the burden 
 or the cost of the litigation fall upon him, or to take from him sub- 
 stantial rights for the convenience of the parties litigant. * * * It 
 would have been proper to empower him [the receiver] to examine 
 the property, and inventory it, for the purpose of an intelligent sale." 
 Smith V. Menominee Circuit Judge, 53 Mich. 560, 19 N. W. 184. 
 Compare Gery v. Brown, 33 111. App. 435; Coombs v. Davis, 2 Wash. 
 T. 466, 7 Pac. 860. 
 
 (213) 
 
§ 177 LAW OF GARNISHMENT. [Ch. & 
 
 tiff.^"* Though, by contract with the defendant, the 
 mortgagee or pledgee has a right to advance money 
 and claim a lien on the property in his possession for 
 the amount advanced, he cannot defeat the garnish- 
 ment by advances made after the summons is served 
 on him.^°^ 
 
 Real Property. 
 
 § 177. Eeal estate has generally been considered 
 not to be attachable by garnishment proceedings, upon 
 the double ground that it is not included in the terms 
 of the statute declaring what property may be reached 
 by garnishment, and that the process is ill adapted to 
 such use, and difficulties would attend its practical ap- 
 plication to such property. For a discussion of these 
 views, the reader is referred to the cases given be- 
 low.^"* However, it has generally been held that a 
 garnishee may be questioned as to real estate in his 
 
 ii>2 Allen V. Hall, 5 Mete. (Mass.) 263; Brewer v. Pitkin, 11 Pick. 
 298; Allen v. Megguire, 15 Mass. 490; Bailey v. Ross, 20 N. H. 302; 
 Minthorn v. Hemphill, 73 Iowa, 257, 34 N. W. 844. 
 
 In South Carolina it was provided by statute that the garnishee, If 
 lawfully in possession of the defendant's property, may retain it 
 till the debts due from the defendant to him are paid. Yongue v. 
 Linton, 6 Rich. Law, 275; Mitchell v. Byrne, Id. 171. 
 
 193 McCown V. Russell, 84 Wis. 122, 54 N. W. 31; Grain v. Gould, 
 46 111. 293; Barnard v. Moore, 8 Allen, 273; Pinnigan v. Ploe,ck (Tex. 
 Civ. App.) 28 S. W. 268. See, also, ante, §§ 65, 45. 
 
 10* Banning v. Sibley, 3 Minn. 389 (Gil. 282, 296); Moor v. Towle, 
 38 Me. 133; Stedman v. Vickery, 42 Me. 132; Plummer v. Rundlott, 
 Id. 365; How v. Field, 5 Mass. 390; Dickinson v. Strong, 4 Pick. 57; 
 Ripley v. Severance, 6 Pick. 477, 17 Am. Dec. 397; Gore v. Clisby, 
 8 Pick. 555; Bissell v. Strong, 9 Pick. 562; Sanford v. Bliss, 12 Pick. 
 116; Seymour v. Kramer, 5 Iowa, 285; Boyle v. Maroney, 73 Iowa, 
 70, 35 N. W. 145; Risley v. Welles, 5 Conn. 431; Wright v. Boswell, T 
 (214) 
 
Ch. 5] PROPERTY SUBJECT TO GARNISHMENT. § 177 
 
 possession held in trust for the defendant, or for the 
 rents or proceeds of which he is accountable to the de- 
 fendant; and, if so found accountable, ho could, of 
 course, be charged for the amount of the fund/"'^ The 
 statutes in some of the states expressly make the gar- 
 nishee chargeable for the real prooer-ty of the defend- 
 ant in his possession or control at the time the garnish- 
 ment summons is served.^ "^ 
 
 N. H. 590; Baxter v. Currier, 13 Vt. 615; Hunter v. Case, 20 Vt. 
 195; Stevens v. Kirk, 37 Vt. 2(H; Woodward v. Wyman, 53 Vt. 045; 
 Executor of Doane v. Doane, 46 Vt. 485. 
 
 One receiving conveyance of li.,nd as security for debt was held 
 liable as garnishee for the value over the amount of the debt. Pier- 
 son V. Weller, 3 Mass. 464. Contra, Farwell v. Wilmarth, 65 Wis. 
 160, 26 N. W. 548. 
 
 A DEBT DUB FOR LAND PUIICHASED of the defendant is as 
 garnishable as any other debt. First Nat. Bank v. Brainerd. 28 
 Fed. 917; Smith v. Wiley, 41 Vt. 19. 
 
 195 Russell V. Lewis, 15 Mass. 127; Hazen v. Emerson, 9 Pick. 144. 
 Compare Boardman v. Roe, 13 Mass. 104; Bell v. Kendrick. 8 N. H. 
 520; Moor v. Towle, 38 Me. 133. 
 
 196 3 How. Ann. St. Mich. § 8059; Sanb. & B. Ann. St. Wis. § 2753. 
 Compare Boston Loan & Trust Co. v. Organ, 53 Kan. 386, 36 Pac. 733. 
 
 (215) 
 
§ 178 LAW OF GARNISHMENT. [Cli. 6 
 
 CHAPTER VI. 
 
 THE GARNISHEE'S POSITION, RIGHTS, AND DUTIES. 
 
 § 178. Position In General. 
 
 179. As a Defendant. 
 
 180. As a Receiver. 
 
 181. As a Witness. 
 
 182. Rights of the Garnishee. 
 
 183. Duties of the Garnishee— To the Plaintiff. 
 
 184. To Third Persons. 
 
 Position in General. 
 
 § 178. The complainant in a bill of interpleader in 
 chancery occupies a position more nearly analogous to 
 that of the modern garnishee than any other party to 
 a suit known to the history of jurisprudence.^ In one 
 sense the garnishee is a witness merely, subpoenaed 
 and fees paid for attending and testifying in a suit 
 wherein he is not a party and has no interest. In an- 
 other sense he is a receiver for the court, to hold the 
 property in suit till the litigation is concluded and the 
 rights of the contending parties are adjudicated and 
 settled, whereupon he pays or delivers the property in 
 accordance to the order of the court; and in this ca- 
 pacity it is a favorite expression of the courts to call 
 him a "disinterested stakeholder." In still another 
 sense he is a party defendant to a suit in court, has 
 been summoned to appear and plead, and, unless he 
 confess the claim in the plaintiff's declaration (afl&da- 
 vit or denial of the answer) or suffer judgment by de- 
 
 1 story, Rq. Jur. <:. 20; Providence Inst, for Sav. v. Barr, 17 R. I. 
 131, 2u All. 245. 
 (21C) 
 
Ch. 6] garnishee's position, rights, and duties. § 178 
 
 fault, an issue is in due time formed between him and 
 the plaintiff, and brought on for trial. All three of 
 these elements combine in every garnishment suit to 
 render the position of the garnishee anomalous, and 
 one or the other predominates according to the facts 
 of each particular case. In the average case the gar- 
 nishee is a disinterested party in fact, so far as any re- 
 ward he expects to derive from the litigation is con- 
 cerned, and his only interest is to escape from the con- 
 flict without personal injury; and in this respect we 
 «an do no better than to quote the language of the su- 
 preme court of Michigan: "At common law the debtor 
 had the privilege of choosing who should be his cred- 
 itor. Under this statute of garnishment he is de- 
 prived of that privilege. The law steps in between 
 the two, and says another shall be his creditor, al- 
 though the latter be his worst enemy; and the debtor 
 is also compelled to submit to the vexation and ex- 
 pense of a suit in which the advice and counsel of a 
 good lawyer must be secured, in order to avoid the 
 hazard of a double liability. The first creditor is al- 
 ways on the alert to see that his claim is legally trans- 
 ferred to the second, which he has a right to do." * Be- 
 ing thus ground between the upper and lower stones 
 often renders the position of the garnishee a hard one, 
 subjecting him to expense and perhaps double liabil- 
 ity without his fault." But, of course, these are ex- 
 
 = Eltelaolin v. Fireman's Fund Ins. Co., 64 Micb. 334, 31 N. W. 201. 
 
 For similar remarks, see Rothsclilld v. Burton, 57 Mich. 544. 25 N. 
 W. 49; Steen v. Norton, 45 Wis. 412. 
 
 s See Illinois Cent. Ry. Go. v. Smith, 70 Miss. 344, 12 South. 4G1; 
 Missouri Pac. Ky. Co. v. Sharitt, 43 Kan. 375, 23 Pac. 430; American 
 ■Cent. Ins. Co. v. Hettler, 37 Neb. 849, 5G N. W. 711; Douglass v. 
 Phenlx Ins. Co., 138 N. Y. 209, 33 N. B. 938. 
 
 (217) 
 
§ 179 LAW OF GARNISHMENT. [Ch. 6- 
 
 ceptions, and not the rule; and our laws, while seek- 
 ing at all times to avoid inflicting positive injury, must 
 aim to promote the general welfare of the people, and 
 it is far better that one should be slightly inconven- 
 ienced than that the law should furnish only an inade- 
 quate remedy to the masses. The laws cannot be 
 made perfect. Experience has shown the remedy to 
 be eminently practicable as a means of civil justice, 
 without inflicting injury, except in very rare cases, 
 which is a fault common to all human remedies, and 
 the tendency is rather to expand that to restrict it. 
 
 As a Party Defendant. 
 
 § 179. Most of the statutes provide for the forming 
 and trial of an issue between the plaintiff and gar- 
 nishee very similar in effect to an ordinary trial in 
 other actions,* and in this aspect the proceeding is an 
 action in which the garnishee is the defendant." This 
 feature becomes plainlv visible when the garnishee as- 
 sumes the attitude of a litigant. It is then in every 
 respect a suit in which the primary object is to obtain 
 a judgment against the garnishee. It is commenced 
 by process; the parties must have a day in court; 
 pleadings are made and filed; an issue formed and 
 tried; evidence adduced; judgment rendered; costs 
 adjudged; and finally execution issued, levied, and col- 
 lected." 
 
 * See post, § 352 et seq. 
 See ante, § 3. 
 
 <5 Tunstall v. Worthington, Hempst. 6G2, Fed. Cas. No. 14,239; Lack- 
 ett V. Runibaugh, 45 Fed. 28. 2(j. 
 (218) 
 
Ch. 6] gaenishee's position, rights, and duties. § 180 
 
 As a Receiver. 
 
 § 180. From the time of the service of the garnish- 
 ment summons on the garnishee, all property in his 
 possession or control belonging to the principal de- 
 fendant and debts owed by him to the principal de- 
 fendant are quasi in custodia legis; ^ and the garnishee 
 thereby acquires special rights as agent of the court," 
 and, while the proceeding is pending, is entitled to re- 
 tain the garnished property against all persons what- 
 soever, including the absolute owner, who is a stran- 
 ger to the suit." As receiver or stakeholder for the 
 court, he is presumed to be a disinterested party.^" 
 Pending the suit he holds the property in very much 
 the same manner as a receiver appointed by a court of 
 chancery. He may be restrained from disposing of 
 it,^^ or may be ordered to pay it into court where his 
 personal rights are not involved,^^ and may be pun- 
 ished for contempt in disobeying the orders of the 
 court." 
 
 ' See post, §§ 193, 194. 
 8 Erskine v. Staley, 12 Leigh (Va.) 406. 
 
 Stiles V. Davis, 1 Black, loX; Cooley v. Minnesota Transfer Ry. 
 Co., 53 Minn. 327, 55 N. W. 141. 
 
 10 Bethel v. Linn, e3 Mich. 4(j4, 471, 30 N. W. 84; Porter v. Stevens, 
 9 Cush. 530; Wilder v. Weatherhead, 32 Vt. 765, 767; Hewitt v. Fol- 
 lett, 51 Wis. 264, 272, 8 N. W. 177; I'hipps v. Rieiey, 15 Or. 494, 16 
 Pac. 185; Denmson v. Taylor, 142 111. 45, 31 N. E. 148. 
 
 11 Malley v. Altman, 14 Wis. 22; Almy v. Piatt, 16 Wis. 169; 
 Bragg V. Gaynor, 85 Wis. 468, 481, 55 N. W. 019, 923. Compare More' 
 T. Kidder, 55 N. H. 488. 
 
 12 Johann v. Rufener, 32 Wis. 195* 198. 
 
 13 Johaun v. Rufener, 32 Wis. 198. 
 
 Held, that the garnishee may be punished for contempt for dispos- 
 ing of the property. Lilienthal v. Wallach, 37 Fed. 241. 
 See, also, post, § 193. 
 
 (219) 
 
5 181 LAW OF GARNISHMENT. [Ch. 6 
 
 As a "Witness. 
 
 § 181. As has been before remarked, the garnishee 
 has many of the attributes of a witness. He is sub- 
 poenaed to testify in a cause between other parties, 
 and is paid the fees and mileage of a witness. It is 
 held under several of the garnishment statutes that 
 the garnishee is the witness of the plaintiff, and his 
 only witness,^* except for the purpose of explaining 
 and corroborating the disclosure; ^° that the plaintiff 
 can give no evidence to impeach or contradict him; ^° 
 that no recovery can be had except on his admitted lia- 
 bility; " and if the plaintiff fails to make out a prima 
 
 14 Hackley v. Kanitz, 39 Mich. 398; Isabelle v. Iron Cliffs Co., 57 
 Micli. 120, 23 N. W. 613; Karp v. Citizens' Nat. Bank, 76 Mich. 679, 
 681, 43 N. W. 680. 
 
 15 Maynards v. Corn well, 3 Mich. 309, 313; Newell v. Blair, 7 Mich. 
 103, 105; Thomas v. Sprague, 12 Mich. 120, 122; Zimmer v. Davis, 
 35 Mich. 39; Isabelle v^. Iron Cliffs Co., 57 Mich. 120, 23 N. W. 013; 
 Lyon V. Kneeland, 58 Mich. 570, 25 N. W. 518; Barber v. Howd, 85 
 Mich. 221, 48 N. W. 539; Chase v. North, 4 Minn. 3S1 (Gil. 288). 
 
 The garnishee having sworn that be would be indebted to the de- 
 fendant on the completion of a bouse, the plaintiff may show by his 
 own oath that the house is complete, though the garnishee object. 
 Zimmer v. Davis, 35 Mich. 39. CONTRA: Recovery can be had only 
 on the disclosure alone. Sweet v. Read, 12 R. I. 121; Raymond v. 
 Narragansett Tinware Co., 14 R. I. 310. 
 
 10 Banning v. Sibley, 3 Minn. 389 (Gil. 282, 296); Chase v. North, 4 
 Minn. 381 (Gil. 288); Cole v. b'ater, 5 Minn. 468 (Glf. 378, 381); May- 
 nards V. Cornweil, 3 Mich. 309, 313; Newell v. Blair, 7 Mich. 103, 105; 
 Sexton V. Amos, 39 Mich. 695, 698; Isabelle v. Iron Cliffs Co., 57 
 Mich. 120, 23 N. W. 613; Sutherland v. Burrill, 82 Mich. 13, 17, 45 N. 
 W. 1122; Nutter v. Framingham & L. Ry. Co., 131 Mass. 231. 
 
 17 Isabelle v. Iron Cliffs Co., 57 Mich. 120, 23 N. W. 613; Walker 
 v. Detroit, G. H. & M. Ry. Co., 49 Mich. 448, 13 N. W. 812; Picquet v. 
 Swan, 4 Mason, 443, Fed. Cas. No. 11,133. 
 (220) 
 
Ch. 6] garnishee's position, rights, and duties. § 182 
 
 facie case by the disclosure,'* or it leaves a reasonable 
 doubt as to the garnishee's liability," the suit fails, 
 and the garnishee must be discharged. If, after issue 
 joined, the plaintiff calls the garnishee to the stand 
 to testify, he thereby makes him his witness in anv 
 case; but even then he mav, in the discretion of the 
 court, be permitted to question the garnishee as to 
 former statements inconsistent with the testimony be- 
 ing given.^" 
 
 Rights of the Garnishee. 
 
 § 182. As has been observed, the garnishment in 
 no way prejudices the personal interests of the gar- 
 nishee in the property intended to be attached by the 
 garnishment, and cannot deprive him of any of his 
 contract or statutory rights.^' We now propose to 
 consider the rights he has in respect to the garnish- 
 ment proceedings. He has a right to examine the 
 proceedings in the principal suit so far as to ascertain 
 that they are sufflcient to give the court jurisdiction of 
 the garnishment proceedings, and afford him protec- 
 tion from future liability, and to stand upon the ob- 
 jection if they are not.^^ He has a right to urge the 
 
 IS Wellover v. soule, 30 Mich. 482; Lorman v. Phoenix Plre Ins. 
 Co., 33 Mich. 65, (JT; Hackley v. Kanitz, 39 Mich. 398; Spears v. 
 Chapman, 43 Mich. 541, 5 N. W. 1038; VPeirich v. Scribner, 44 Mich. 
 73. 6 N. W. 91; Wallier v. Detroit, G. H. & M. Ry. Co., 49 Mich. 448, 
 13 N. W. 812; Lyon v. Kneeland, 58 Mich. 570, 25 N. W. 518. 
 
 18 Pioneer Pi-inting Co. v. Sanborn, 3 Minn. 413 (Gil. 304); Chase 
 V. North, 4 Minn. 381 (Gil. 288); Cole v. Sater. o Minn. 468 (Gil. 378, 
 381). See, also, post, § 314. 
 
 20 Trunkey v. Crosby, 33 Minn. 464, 23 N. W. 846. Contra, Nutter 
 V. Framingham & L. Ry. Co., 131 Mass. 231. 
 
 21 See ante, §§ 48, 61. 
 
 22 See post, § 225. 
 
 (221) 
 
§ 183 LAW OF GARNISHMENT. [Ch. 6 
 
 exemption of the property or debt in his possession in 
 favor of the principal defendant," or any other fact 
 which would entitle him to be discharged. The gar- 
 nishee may insist that no judgment shall be rendered 
 against him till all persons claiming the property in 
 his possession or the debt owed by him have been made 
 parties to the suit, so as to be bound by the judgment 
 rendered therein.^* He may admit away his own 
 rights, but he has no power to admit away the rights 
 of others.^" Likely, however, the garnishee may es- 
 cape further liability to the defendant or any other 
 person by giving him or them notice of the garnish- 
 ment proceedings, and warning him or them to appear 
 and defend the same, or be forever estopped by the re- 
 sult, whatever it may be;"" but mere notice without 
 offer of opportunity to defend is not sufficient." 
 
 Duties of the Garnishee. 
 
 To Plaintiff. 
 
 § 183. No duties are placed upon the garnishee as 
 such until he has been actually served with process. 
 Notice that garnishment papers are being prepared to 
 serve on him puts him under no obligation to withhold 
 
 2 3 See ante, § 85. 
 
 21 Lyon V. Ballentine, 63 Mich. 95, 105, 29 N. W. 837; Kennedy v. 
 McLellan, 76 Mich. 598, 604, 43 N. W. 641; Levy v. Miller. 38 Minn. 
 526, 38 N. W. 700. See, also, post, § 333. 
 
 25 Hebel v. Amazon Ins. Co., 33 Mich. 400, 403; Tabor v. Van 
 Tranken, 39 Mich. 793; Blake v. Hubbard, 45 Mich. 1, 4, 7 N. W. 201; 
 Keppel V. Moore, 66 Mich. 292, 294, 33 N. W. 499; Crisp v. Ft. Wayne 
 & E. Ry. Co., 9f5 Mich. 648, 57 N. W. 1050. See, also, post, § 271. 
 
 26 Pierce v. Chicago & N. W. Ry. Co., 36 Wis. 283, 288; Crisp v. 
 Ft. Wayne & B. Ry. Co., 98 Micb. 648. 652, 57 N. W. 1050. 
 
 2 7 Crisp V. Ft. Wayne & E. Ry. Co., supra; Adams v. Filer, 7 Wis. 
 306, 324. 73 Am. Dec. 410. 
 (222J 
 
Ch. b] garnishee's position, eights, and duties. § 183 
 
 the property in his hands for the benefit of the plain- 
 tiff.^* But, as soon as the process is served on him, he 
 has active duties to perform. He must impound the 
 property in his possession or the debt owed by him to 
 satisfy any judgment the plaintiff may recover, and 
 he cannot escape liability to the plaintiff therefor by 
 allowing it to be subsequently removed from his con- 
 trol. ^° If, after he is served with process, any one at- 
 tempts to take the property or recover the debt from 
 him by legal process, it is his dutv to exhaust all au- 
 thorized means to prevent it.^" But service of process 
 does not constitute a prohibition of all further busi- 
 ness transactions between the garnishee and the de- 
 fendant; it simply attaches the debt or property ow- 
 ing by him or in his possession.'^ He may after- 
 wards, without incurring additional liability, make 
 the defendant a gift, or pay him money he was under 
 no obligation to pay,"^ or advance him money or goods 
 for labor to be performed thereafter." 
 
 28 Fisher v. HaU, 44 Mich. 494, 7 N. W. 72. Compare Benbow v. 
 Kollom, 52 Minn. 433, 54 N. W. 482. 
 
 A person who pays his debt for the purpose of avoiding being gar- 
 nished, or to aid the defendant in lieeping his property out of the 
 reach of creditors, does not thus subject himself to any liability. 
 Fletcher v. Pillsbury, 35 Vt. IG. 
 
 2 9 Gibson v. National Park Bank, 98 N. Y. 87, 95; Indianapolis 
 Bank v. Armstrong, 101 Ind. 244. See, also, post, § 192. 
 
 80 Johann v. Rufener, 32 Wis. 195. Compare Parker v. Kinsman, 
 8 Mass. 436; Eddy v. O'Hara, 132 Mass. 56. See, also, post, § 192. 
 
 A negligent garnishee is no more entitled to protection than any 
 other negligent party. See post, § 386. 
 
 SI Vanderhoof v. HoUoway, 41 ftimn. 498, 43 N. W. 331. 
 
 82 Victor V. Hartford Ins. Co., 33 Iowa, 210; Worthington v. .Tones, 
 23 Vt. 546. Compare Humphrey v. O'Uonnell, 165 Pa. St. 411, 30 
 Atl. 992. 
 
 33 Smith V. Davis, 1 Wis. 447, 60 Am. Dec. 390; Archer v. People's 
 
 (223) 
 
§ 184 LAW OF GARNISHMENT. , [Ch. & 
 
 To Third Persons. 
 
 § 184. The' garnishee's duties are not all to the 
 plaintiff. He owes duties to tlie defendant and all 
 other persons to his knowledge claiming any interest 
 in the property sought to be garnished." It is his 
 duty to state in his disclosure every fact in his knowl- 
 edge, whether hearsay or otherwise, which has any 
 legitimate tendency to show that he ought not to be 
 charged. ^^ Good faith requires that he should bring 
 to the attention of the court the claims of all persons 
 to the property or debt garnished.^" But he is under 
 no obligation to hunt up evidence as to the real own- 
 er," or decide the question at his peril.'* If he states 
 what he has heard or knows, so that the claimants 
 may be called and their rights litigated, his duty is 
 performed ; or, if he does not know to whom the prop- 
 
 Sav. Banlv, 88 Ala. 249, 7 South. 53; Callagan v. Pocasset Manuf'g 
 Co., 119 Mass. 173; Van Vleet v. Stiatton, \)1 Tenn. 473, 19 S. W. 
 428; Remhart v. Empii-e Soap Co., 33 Mo. App. 24; Chicago & B. I. 
 R. Co. V. Blagden, 33 111. App. 254; Standard Wagon Co. v. Lowry, 
 94 Ga. 614, 19 S. E. 989; Hoffman v. FitzwlUiam, 81 111. 521; Davis 
 V. Humpurey, 22 Iowa, 137; Carr v. Fairbanks, 28 Vt. 806. 
 
 34 Adams v. Filer, 7 Wis. 300, 324; Bushnell v. Allen, 48 Wis. 460, 
 4 N. W. 599; Rice v. .)"ones, 103 N. C. 2:.:0, 9 S. K. 571; Phipps v. 
 Rieley, 15 Or. 494, 16 Pac. 185. 
 
 "s Drake v. I^ake Shore & M. S. Ry. Co., 69 Mich. 168, 172, 37 N. 
 W. 70; Wilson v. Groelle, 83 Wis. 530, o3 N. W. yUO; Crisp v. Ft. 
 Wayne & E. Ry. Co., 98 Mich. 648, 651, 57 N. ^^•. 1050; Black v. 
 Brishin, 3 Minn. 360 (Gil. 253, 256), 74 Am. Dec. 702. 
 
 38 Black V. Brisbin, 3 Minn. 360 (Gil. 2."j3. 256), li Am. Dec. 762; 
 Kimball v. Macomber, 50 Mich. 362, 15 N. VV. 511; Parker v. Wilson, 
 01 Vt. 116, 17 Atl. 747; .John li. Davis Lumber Co. v. First Nat. Banii, 
 S4 Wis. 1, 54 N. W. 108. See, also, post, § 217. 
 
 37 Karp V. Citizens' Nat. Bank, 76 Mich. 679, 43 N. W. 680. 
 
 38 Conshohocken Tube Co. v. Iron car Equipment Co., 167 Pa. St. 
 592, 31 Atl. 949. 
 
 (224) 
 
Ch. 6] garnishee's position, rights, and duties. § 184 
 
 erty in his possession belongs, all he need do is to say 
 80."° He need not wage battle at every step, nor wait 
 to be led by the shoulder into court. If the proceed- 
 ings are regular, and he knows of no claimants to the 
 property except the defendant, and it is garnishable 
 property, he will be as much protected by a judgment 
 suffered by default as by one awarded after vigorous 
 contest.*" 
 
 «9 Crisp V. Ft. Wayne & E. Ry. Co., 98 Mich. 648, 57 N. W. 1050. 
 *o See post, 5§ 205, 215. 
 
 LAW GARNISH. — J 5 (225) 
 
§ 185 LAW OF GAKNISHMENT. [Ch. 7 
 
 CHAPTER VII. 
 
 GARNISHMENTS AND OTHER PROCEEDINGS CONCURRENT 
 —PRIORITY— ADDITIONAL REMEDIES. . 
 
 § 185. Garnishment an Additional Remedy. 
 
 186. • Nothing Discharged till Actual Payment. 
 
 18T. Aid of Equity. 
 
 188. Concurrent Garnishments of the Same Fund— Priority De- 
 
 pends on Date of Service — Satisfaction or Failure of Prior 
 Garnishment— EfCect. 
 
 189. Remedies of Subsequent against Prior Garnishing Cred- 
 itors. 
 
 190. Other Garnishments— How Pleaded as Defense. 
 
 191. Double Liability from Improper Defense. 
 
 Garnishment an Additional Remedy. 
 
 § 185. The right to garnish is provided by law as a 
 special auxiliary remedy for the more effectual recov- 
 ery of debts, and never was intended to take the place 
 of the remedies provided by common law. A plaintiff 
 may file a creditors' bill, upon return of execution 
 nulla bona, without exhausting his remedy by statu- 
 tory garnishment; ^ or may maintain a creditors' bill 
 in equity to reach certain property of the defendant, 
 and at the same time prosecute a suit in garnishment 
 to reach other property, and have it applied in- satis- 
 faction of the same judgment; ^ or he may, while the 
 
 ' Vicksburg & M. Ry. Co. v. Phillips, 64 Miss. 108, 1 South. 7. But 
 see Weaver v. Cressman, 21 Neb. 675, 33 N. VV. 478. 
 
 2 Blake v. Hubbard, 45 Mich. 1, 7 N. VV. 204. 
 
 When It appears that the garnishment proceedings afford a com- 
 plete remedy, a bill in equity, afterwards filed, to reach the same 
 property will be dismissed. See post, § 331. 
 (226) 
 
Ch. 7] OTHKR REMEDIES CONCURRENT — PRIORITY. § 1^6 
 
 garnishment suit is pending, issue execution on his 
 judgment, and levy on whatever property of the de- 
 fendant he can find; " or may have still other persons 
 summoned as garnishees, and pursue all these reme- 
 dies pari passu ; * or prosecute subsequent garnish- 
 ments against the same garnishee; " or have garnish- 
 ment issued in aid of a suit to enforce a log lien ; " or 
 maintain garnishment, although he may have other se- 
 curity/ 
 
 Nothing Discharged till Actual Payment. 
 
 § 186. The fact that enough property has been at- 
 tached by any one of these proceedings to satisfy the 
 plaintiff's whole demand is no reason for dismissing 
 any of the others till the iudgment is actually satis- 
 fled, though it might be cause for stay of judgment in 
 the other suits, on proper application therefor.* A 
 
 8 Sutton V. Hasey, 58 Wis. 556, 17 N. W. 416; But see Iloberts v. 
 "Landecker, 9 Cal. 262. 
 
 ' State Sav. Bank v. Wayne Circuit Judge, 95 Mich. 100, 54 N. W. 
 632; Pratt v. Young, 90 Ga. 39. 15 S. li). 630; Ahrens & Ott Manuf g 
 Co. V. Patton Sasli, Door & Building Co., 94 Ga. 247, 21 S. E. 523. 
 
 o Lawrence v. Security Co., 50 Conn. 423, 15 Atl. 400. 
 
 8 O'Reilly v. Milwaulsee & N. Ry. Co., 68 Wis. 212, 31 N. W. 485. 
 
 Tlie lien given by statute to Innkeepers upon the wages of guests 
 cannot be enforced by garnishment. Rischert v. Kunz, 9 Mo. App. 
 283. 
 
 ' Germania Sav. Bank v. Peuser, 40 La. Ann. 796. 5 South. 75. 
 
 DISMISSAL OF GARNISHMENT TO ATTACH: The creditor 
 who has attached property by garnishment may dismiss the garnish- 
 ment proceedings, and seize the gai-nished property under an attach- 
 ment writ, and the garnishee cannot set up the garnishment pro- 
 ceedings to defeat the attachment; for, by attaching, the creditor 
 released the garnishee from personal liability. Toledo Sav. Bank v. 
 Johnston (Iowa) 62 N. W. 748. 
 
 8 Sutton V. Hasey, 58 Wis. 556. 564, 17 N. W. 416. 
 
 Held that, when an excessive numoer of garnishees are summoned, 
 
 (227) 
 
§ 187 LAW OF GAR.MSflllEXr. [Ch. 7 
 
 creditor's claim is not satisfied by a fruitless garnish- 
 ment, although the defendant thereby forever loses his 
 demand against the garnishee by the insolvency of the 
 latter, for the garnishment does not absolve the de- 
 fendant's duty to pay, bv which he could at any time 
 dissolve the garnishment; ° but a payment of the 
 money into court by the garnishee operates as an im- 
 mediate payment upon the judgment in the main ac- 
 tion, and discharges the judgment pro tanto, although 
 the ofiflcer receiving the money absconds with it, and 
 the plaintiff never receives any of it/* 
 
 Aid of Equity. 
 
 § 187. Ordinarily, the aid of a court of equity can- 
 not be invoked by either plaintiff,^^ defendant,^' claim- 
 
 the court should require ttie plaintiff to elect wliicli he will pursue, 
 and order the proceedings against the rest dismissed. Gilmore v. 
 Miami Bank, 3 Ohio, .503. 
 
 » Brice v. Carr, 13 Iowa, 599; Dickinson v. Clement, 87 Va. 41, 12 
 S. E. 105. 
 
 10 In re Dawson, 110 N. Y. 114, 17 N. E. 668, affirming 47 Hun, 634. 
 
 11 .Tudah V. Judd, 1 Conn. 309; Gager v. Watson, 11 Conn. 168; 
 Kimball v. Lee, 43 N. J. Eq. 277, 10 Atl. 285; Morton v. Grafflin, 68 
 Md. 545, 13 Atl. 241, and 15 Atl. 298. 
 
 Plaintiff cannot supplement his garnishment by injunction against 
 the principal defendant, Carr v. I^ee, 44 Ga. 376; Arthur v. Batte, 42 
 Tex. 159; nor by a bill in the nature of a creditors' bill to set aside a 
 fraudulent conveyance to the garnishee, Thurber v. Blanck, 50 N. Y. 
 80; Godding v. Pierce, 13 R. I. 532; Bigelow v. Andress, 31 111. 322; 
 nor by a bill for an accounting between the garnishee and the de- 
 
 12 Reeves v. Cooper, 12 N. J. Eq. 223; Eberhart v. Gilchrist, 11 N. 
 J. Eq. 167. 
 
 A statute of Connecticut allows the defendant to transfer the action 
 to the equity court by bill of interpleader, and the filing and service 
 of such bill suspends the action at law. Darrow v. Adams Express 
 Co., 41 Conn. 525. 
 (228) 
 
Ch. 7] OTHER REMEDIES CONCURRENT PRIORITY. § 187 
 
 ant,^° or garnishee/* to make effectual, or obtain re- 
 lief, from garnishment proceedings at law, especially 
 in the absence of any showing that the complainant 
 is without fault, and has exhausted his remedy at law, 
 or has none/^ The remedy can be pursued only ac- 
 cording to the appointment of the statute. '* But, in 
 many cases in which garnishment could not be main- 
 tained at law, the same benefits may be acquired by 
 
 fendant, Treadwell v. Brown, 43 N. H. 290; nor when the plaintiff 
 has an adequate and complete remedy under the garnishment stat- 
 ute. See post, § 331. 
 
 The plaintiff cannot, on showing that the garnishee is insolvent, 
 have an injunction to restrain the debtors of the latter from paying 
 their debts to him. Wolf v. Tappan, 5 Dana (Ky.) 361. 
 
 Held, that a bill for the benefit of all creditors of the defendant in 
 attachment is maintainable. Falconer v. Fieeman, 4 Sandf. Ch. 565. 
 
 When the plaintiff has secured a condemnation of an equitable m- 
 terest, he will be in a position to claim the aid of equity to make 
 it available, but not before. Morton v. Grafflin, 68 Md. 545, 15 Atl. 
 298; White v. Simpson (Ala.) 18 South. 151. 
 
 13 Baldwin v. Wayne Circuit Judge, 101 Mich. 432, 59 N. W. 669. 
 
 14 See post, §§ 191, 386. But compare post, § 331. 
 
 Garnishee is entitled to injuoction perpetually restraining plaintiff 
 from collecting a judgment to which garnishee has acquired a com- 
 plete defense since it was rendered. Cottrell v. Varnum, 5 Ala. 229, 
 39 Am. Dec. 323. 
 
 Garnishee may have Injunction pending the garnishment to restrain 
 enforcement of judgment on which he owes defendant. Gager v. 
 Watson, 11 Conn. 168. 
 
 The maker of a note may, as garnishee, have a bill of interpleader 
 between the plaintiff and an alleged indorsee without notice of the 
 garnishment. Briant v. Reed, 14 N. J. Eq. 271; Fitch v. Brower, 42 
 N. J. Bq. 300, 11 Atl. 330. 
 
 16 Id. 
 
 16 See ante, §§ 6, 13; Godding v. Pierce, 13 R. I. 532; Thurber v. 
 Blanck, 50 N. Y. 80. But see Conover v. Ruckman, 33 N. J. Bq. 303; 
 Morton v. Grafflin, 68 Md. 545, 13 Atl. 341. 
 
 Only legal, as distinguished from equitable, claims are, ordinarily, 
 liable to garnishment. See ante, § 154. 
 
 (22!)) 
 
§ 188 LAW OF GARNISHMENT. [Ch. 7 
 
 bill in equity without garnishment; " and in garnish- 
 ment at law a court of equity will interfere, and re- 
 strain a garnishee from fraudulently putting the prop- 
 erty in his hands beyond the reach of the plaintiff.^* 
 
 Concurrent Garnishments of Same Fund. 
 
 Priority Depends on. Date of Service — Effect of Failure or Satisfac- 
 tion of Prior Garnishment. 
 
 § 188. Where there are several garnishments 
 against the same property or fund in favor of differ- 
 ent creditors, they take priority in the direct order of 
 time of service of summons upon the garnishee,^" and 
 
 17 Earle v. Grove, 92 Midi. 285, 52 N. W. 615; Forrest v. Price, 52 
 N. J. Eq. 16, 29 Atl. 215; Pendelton v. Perkins, 49 Mo. 505. 
 
 A. recovered judgment against B. C. vi^as indebted to B., and D. to 
 C. Held, that the plaintiff could not, in equity, subject the amount 
 due by D. to C. to the payment of his judgment against B. Jones v. 
 Huntington, 9 Mo. 249. 
 
 18 See post, § 193; Malley v. Altman, 14 Wis. 22; Almy v. Piatt, 
 16 Wis. 169; Bragg v. Gaynor, 85 Wis. 468, 481, 55 N. W. 919, 923; 
 Moore v. Kidder, 55 N. H. 488; Candee v. Penniman, 32 Conn. 228. 
 But see Kimball v. Lee, 48 N. J. Eq. 277, 10 AU. 285; Bigelow v. 
 Andress, 31 111. 322. 
 
 19 Wilder v. Weatherhead, 32 Vt. 765; McCobb v. Tyler, 2 Cranch, 
 C. C. 199, Fed. Cas. No. 8,705; Johnson v. Griffith, 2 Cranch, O. C. 
 199, Fed. Cas. No. 7,386; Johann -^ Rufener, 32 Wis. 195; Dorestan 
 V. Krieg, 60 Wis. 004, 613, 29 N. W. 576; Johnson v. Gorham, 6 Cal. 
 195, 65 Am. Dec. 501: Warren v. Matthews, 96 Ala. 183, 11 South. 
 285; Gomila v. Milliken, 41 La. Ann. 116, 5 South. 548; Talbot v. 
 Harding, 10 Mo. 350; Pritchard v. Toole, 53 Mo. 356. 
 
 PRIORITY BETWEEN GARNISHING CREDITORS AND OTH- 
 ERS: The same rule of priority applies between an attaching and a 
 garnishing creditor. Starr v. Ti-acy, 2 Root (Conn.) 528; Parker v. 
 Kinsman, 8 Mass. 486; Burlingame v. Bell, 16 Mass. 318; Swett v. 
 Brown, 5 Pick. (Mass.) 178; Piatt v. Brown, 16 Pick. (Mass.) 553; 
 Reed v. Fletcher, 24 Neb. 435, 39 N. W. 437, 447; Grand Island Bank- 
 ing Co. V. CosteUo, 43 Neb. 119, 63 N. W. 376; Shaver Wagon & Car- 
 (230) 
 
Ch. 7] OTHER RKMEDIES CONCURRENT PRIORITY. § 188 
 
 not in the order of issuance of the writs/" or the ren- 
 dering of the judgments." Each successive garnish- 
 
 riage Co. v. Halsted, 78 Iowa, 730, 43 N. W. 623; Buck-Renier Co. v. 
 Beatty, 82 Iowa, 353, 48 N. W. 96; Barton v. Spencer (Okl.) -11 Pac. 
 605; Pocke v. Blum, 82 Tex. 436, 17 S. W. 770; Brskine v. Staley, 12 
 Leigh (Va.) 406; Wynne v. State Nat. Bank, 82 Tex. 378, 17 S. W. 918. 
 And between a garnishing creditor and a creditor by bill in equity. 
 Citizens' Bank of Wichita v. Farwell, 11 C. C. A. 108, 63 Fed. 117; 
 Cook V. Dillon, 9 Iowa, 407, 74 Am. Dec. 354; Scott v. Windham 
 (Miss.) 16 South. 206; Monroe v. Lewald, 107 N. C. 655, 12 S. B. 287. 
 And between a garnishing creditor and a creditor claiming under a 
 mechanic's lien. Dorestan v. Krieg, 66 Wis. 604, 612, 29 N. W. 576; 
 Cahoon v. Levy, 6 Cal. 296; Bell v. Burke, 89 Ga. 772, 15 S. B. 705; 
 JlcCorkle v. Herrman, 117 N. Y. 297, 22 X. B. 948; McCullom v. Rich- 
 ardson, 2 Handy (Ohio) 274. Contra, Laws Mich. 1893, ActNo. 199, § 9. 
 When a creditor of a partnership sues the same, and garnishes a 
 debtor of one of the partners, and afterwards a creditor of that part- 
 ner summons the same debtor as garnishee, the same rule applies. 
 Stevens v. Perry, 113 Mass. 380. 
 
 "The law favors the diligent creditor, and will suffer no interfer- 
 ence by one who has slept on his rights, for the purpose of taking 
 from him the fruits of his superior diligence." Cook v. Dillon, 9 
 Iowa, 407, 414, 74 Am. Dec. 354. 
 
 After a sheriff had taken property under a writ of attachment, and ' 
 delivered it to a person, to be returned on demand, taking his receipt 
 therefor, the receiptor leased the property of the owner, the principal 
 defendant, and was thereafter summoned as garnishee of such de- 
 fendant in another suit, after which the sheriff retook the property 
 under his receipt, and levied another attachment upon it in favor of 
 another creditor. Held, that the garnishing creditor's rights were 
 prior to the second attachment. Bank of Middlebury v. Bdgerton, 30 
 Vt. 182. 
 
 IN ILLINOIS, all attaching and garnishing creditors share pro rata 
 by statute. Reeve v. Smith, 113 111. 47. 
 IN VERMONT, the rule is the same. Bird v. Taylor, 43 Vt. 584. 
 SIMULTANEOUS GARNISHMENTS share pro rata. Guilford v. 
 Reeves (Ala.) 15 South. 661. 
 
 20 McCobb V. Tyler, 2 Cranch, C. C. 199, Fed. Cas. No. 8,705; John- 
 son V. Gorham, Cal. 195, 65 Am. Dec. 501. 
 
 21 Harrell v. Mexico Cattle Co., 73 Tex. 012, 11 S. W. 8G3. 
 
 (231) 
 
§ 188 LAW OF GARNISHMKNT. [Ch. 7 
 
 ment takes whatever is left on satisfaction of its pred- 
 ecessors, or enough to satisfy the judgment or demand 
 in the suit in which it is issued, if there be so much; "^ 
 and if the prior garnishment absorbs the whole fund 
 subsequent garnishments take nothing." If a prior 
 garnishment fails for any reason, or the defendant 
 pays the judgment on which it is issued, the succeed- 
 ing garnishments take its place, moving forward in 
 their order, and the plaintiffs therein acquire the same 
 rights as if such prior garnishment had never been 
 made; ^* and if the plaintiff, in anv prior suit, fails to 
 prosecute it to judgment, as required by law to make 
 it effectual, and the garnishee nevertheless pays him 
 the money without, he will still be liable for the full 
 amount to the junior garnishors, for their rights de- 
 pend upon the defendant's, and his can be cut off only 
 by performing the requirements of the statute.^'' 
 
 2 2 Mechanics' Sav. Bank v. Waite, 150 Mass. 234, 22 N. E. 915; 
 First Nat. Banli v. Biaiuerd, 28 Fed. 917; Guilford v. Reeves (Ala.) 
 15 South. G61. 
 
 2 3 Garity v. Gigie, 130 Mass. 184. 
 
 2* Mortlaud v. Little, 137 Mass. 342; Sheffield v. Barber, 14 R. I. 
 263; The Olivia A. Carrigan, 7 Fed. 507. Compare Patrick v. Mon- 
 trader, 13 Cal. 435; Daniels v. Meinhard, 53 Ga. 3o9. 
 
 2 5 Wilder v. Weatherhead, 32 Vt. 765; Cole v. Wooster, 2 Conn. 203; 
 Bullard v. Randall, 1 Gray (Mass.) 605, 61 Am. Dee. 433. 
 
 AVhen the garnishee, at the defendant's request, and for the pur- 
 pose of ending the litigation, agrees to pay the plaintiff's demand, 
 which is less than the garnishee's debt, the arrangement cannot be 
 defeated, and the garnishee charged, in disregard of it, by a garnish- 
 ment served after that agreement is made. Rudd v. Paine, 2 Cranch, 
 C. C. 9, Fed. Cas. No. 12,108. 
 (232) 
 
■Ch. 7] OTHER REMEDIES CONCURRENT PRIORITY. § 189 
 
 Remedies of Subsequent against Prior Garnishing Creditors. 
 
 § 189. The rule that each garnishment must await 
 the outcome of those preceding it, and can take only 
 from what they leave, affords great inducement to dis- 
 honest debtors to seduce and connive with the first 
 garnishing creditor to embarrass, hinder, and defraud 
 those creditors prosecuting subsequent garnishments, 
 or even to institute fictitious suits for the purpose of 
 defeating anticipated garnishments. What remedies 
 has a creditor who suspects that a prior proceeding 
 against the garnishee in his suit is instituted or con- 
 <iucted in collusion with the principal defendant, for 
 the purpose of defrauding him? It would hardly 
 seem to be the proper practice to require the prior 
 creditor to intervene as a claimant in the subsequent 
 garnishment suit, and it has been held that he cannot 
 be thus compelled to try his suit in the bowels of an- 
 other.^® Moreover, it has been held that the subse- 
 quent garnishing creditor has no standing to intervene 
 as a claimant in the prior suit." But, inasmuch as 
 this is the most summary and effectual means of de- 
 feating such attempts to perpetrate frauds by a per- 
 version of legal process, and is attended with as little 
 expense and inconvenience as any other means of jus- 
 tice, it is to be hoped that these decisions will not be 
 followed. It is believed that, upon principle and au- 
 thority, in the absence of statute, a subsequent gar- 
 nishing creditor mav intervene in the prior suit, to 
 show that it is operated as a fraud upon him, and se- 
 
 26 Cross V. Brown (K. 1.) SS AtJ. 147, 158. 
 
 27 Cross V. Brown, 17 R. 1. 568, 2a Atl. 761; Abernatliy v. White- 
 head, 69 Mo. 28. 
 
 (233) 
 
§ 190 LAW OF GARNISHMENT. [Ch. T 
 
 cure such a disposition of the case as will save his 
 rights,^* or, at his option, prosecute a suit in equity for 
 the same purpose.^" 
 
 Other Garnishments — How Pleaded as Defense. 
 
 § 190. The garnishee cannot plead, in abatement of 
 the proceedings against him as such, that, prior to the 
 commencement of such garnishment, he had been sum- 
 moned as garnishee, in respect of the same debt or 
 property, in a suit or suits in favor of other creditors 
 of the same defendant, which are still pending, al- 
 
 2 8 Blaisclell v. Ladd, 14 N. H. 12'J. 
 
 In Vermont, the statute authorizing such intervention in attach- 
 ment cases was construed by its spirit, and extended to proceedings 
 hy trustee process. Harding v. Harding, 25 Yt. 487. Held, that sub- 
 sequent attaching creditors may intervene to impeach the good faith 
 of previous attachments. Bucliman v. Bucliman, i N. H. 319; Mc- 
 Cluny Co. v. Jaclvson, 6 Grat. (Va.) iXi; Hale v. Chandler, 3 Mich. 531; 
 Smith V. Geftinger, 3 Ga. 140; Jacobs v. Hogan, 85 N. Y. 243. 
 
 Contra, Ward v. Howard, 12 Oliio St. 158; Whipple v. Cass, 8 
 Iowa, 12G. For an extended review of the decisions on fraudulent 
 attachments, see Drake, Attachm. c. 11. 
 
 "The obtaining of the .I'urisdiction is one of the etlects of the service 
 on the garnishee; but, if that service becomes of 'no effect fi'om the 
 beginning,' how can it be said that the jurisdiction remains? Such a 
 holding is directly in the teeth of the plain words of the statute. 
 * * * We entertam no aoubt of tJQe right of a creditor who has 
 obtained au interest or lieu upon the property by subsequent garnish- 
 ment to raise the question." Globe Milling Co. v. Boynton, 87 Wis.. 
 612, U32, 59 N. W. 132. 
 
 For the purpose of showing that a debt, for which the garnishee 
 has given his note payable to the order of a third person, who has 
 brought suit thereon against the garnishee, in fact belongs to the 
 defendant, the garnishing creditor may intervene in such suit. 
 Capera v. Mignon (Tex. Civ. App.) 33 S. W. 882. 
 
 2 Hale V. Chandler, 3 Mich. 531; Patrick y. Montrader, 18 Cal. 
 435; Whipple v. Cass, 8 Iowa, 12G. 
 (234) 
 
Ch. 7] OTHER REMEDIES CONCURRENT PRIORITY. § 190 
 
 though in another jurisdiction; '" nor that suits pre- 
 viously commenced are pending against him by per- 
 sons other than the defendant, who claim to own the 
 property." In either of these cases the garnishee 
 should set up the facts fully in his answer, and there- 
 upon the court will, upon his motion, grant a stay of 
 proceedings till such prior suits are disposed of.'^ If 
 
 30 Warren v. Alatthews, 9G Ala. 183, 11 South. 285; Guilford v. 
 Reeves (Ala.) 15 South. 661; Prentiss v. Danaher, 20 Wis. 311; Car- 
 row V. McDonogh, 10 Mart. (La.) G09; Woodruff v. French, 6 La, 
 Ann. 62; The Olivia A. Carrigan, 7 Fed. 507. And compare Bate« 
 V. Days, 17 Fed. 167. 
 
 "Should it be made to appear but a single cause of action was in- 
 volved, notwithstanding there are different plaintiffs, the court, no 
 doubt, on motion of the garnishee, would consolidate the several suits 
 Into one action. In this way one verdict would be conclusive of the 
 whole subject-matter of the litigation." Imperial Fire Ins. Co. v.. 
 Gunning, 81 111. 236. 
 
 The court making tne first garnishment may require the property 
 to be paid into court, and will guard the rights of subsequent gar- 
 nishing creditors who have sued in other courts. The Olivia A. Car- 
 rigan; 7 Fed. 507. Compare State ex rel. Austrian v. Duncan, 37 
 Neb. 631, 56 N. W. 214. 
 
 31 Graham v. Chappell, 24 Wis. 38; Graham v. O'Neil, Id. 34; .lohami 
 V. Rufener, 32 Wis. 195. 
 
 32 Williams v. Housel, 2 Iowa, 154; Prentiss v. Danaher, 20 Wis, 
 311, 318; Danaher v. Prentiss, 22 Wis. 317; GuilforO v. Reeves (Ala.) 
 15 South. 661; Brickey v. Davis, 9 HI. App. 362; Cutter v. Perkins,. 
 47 Me. 557; Dittenhoefer v. Coeur d'Alene Clothing Co., 4 Wash. 519, 
 30 Pac. 660; Woodruff v. French, 6 La. Ann. 62; Work v. Brown, 38 
 Neb. 498, 56 N. W. 1082; Mechanics' Sav. Bank v. Waite, 150 Mass. 
 234. 22 N. E. 915; Boyd v. Royal Ins. Co., Ill N. C. 372, 16 S. E. 389. 
 
 But if the fund In the garnishee's hands is more than enough to 
 satisfy all" judgments that can possibly be rendered against him, 
 there is no cause for a stay. Warren v. Matthews, 96 Ala. 183, 11 
 South. 285. 
 
 The giving of a bond of indemnity to the garnishee will not entitle 
 
 (235) 
 
§ 191 LAW OF GARNISHMENT. [Ch. 7 
 
 the subsequent garnishor insists, as he has a right to 
 do, upon having his case disposed of without waiting 
 for the outcome of the one preceding it, the court 
 should discharge the garnishee."^ 
 
 Double Ldability from Improper Defense. 
 
 § 191. It is very important that he should make 
 such defense in the proper time and manner, for, if he 
 wait till issue is formed on his answer, and attempt to 
 give the matter in evidence on the trial, it will be re- 
 jected; ^* and, if judgment pass against him in the 
 junior garnishment, he will, nevertheless, be liable for 
 the full amount to the plaintiff whose garnishment 
 was first served," unless he has, without avail, used 
 all legal means to prevent liability in the junior suit." 
 If he fail to make the defense in the proper manner in 
 
 the junior garnishor to immediate judgment. Ash v. Aiken, 2 Tex. 
 Oiv. App. 83, 21 S. W. (ilS. 
 
 When the same creditor began a second garnishment, held, that the 
 garnishee should move to have it set aside, basing the motion on the 
 first. Lomerson v. Hoffman, 24 N. J. Law, 674. 
 
 S3 Cross V. Brown (R. I.) 33 Atl. 147. 
 
 3* Prentiss v. Danaher, 20 Wis. 311, 318; Schuerman v. Foster, 82 
 Wis. 322, 52 N. W. 311; Lomerson v. Hoffman, 24 N. J. Law, 674. 
 
 3 5 Johann v. Rui'ener, 32 Wis. 195; Prentiss v. Danaher, 20 Wis. 
 311; Koyer v. Fleming, 58 Mo. 438. "Compare Farmers' Bank v. 
 Beaston, 7 Gill & J. (Md.) 421, 28 Am. Dec. 22G. 
 
 3« Eddy v. O'Hara, 132 Mass. 50; Holmes v. Remsen, 4 Johns. Ch. 
 (N. Y.) 460, 20 .Tohns. 229, and 11 Am. Dee. 269. 
 
 Judgment naving been passed against him in the junior suit, and he 
 having taken it to the higher court by certiorari, where it was af- 
 firmed, the Wisconsin court held that he ilad not used all legal means, 
 because appeal was more efficient. Johann v. Rufener, 32 Wis. 195. 
 
 Held, that garnishee may notity plaintiff of subsequent suita 
 against him by claimants, and require the plaintiff to defend them; 
 and, having done this, the plaintiff would be bound by any judgment 
 (236) 
 
/ 
 
 Ch. 7] OTHER REMEDIES CONCURRENT PRIORITY. § 191 
 
 the junior suit, and allow judgment to pass against 
 him in both, he is without remedy, either at law or in 
 equity, and must pay both judgments. Interpleader 
 will not lie." 
 
 rendered tn the subsequent suit. Butler v. Wendell, 57 Mich. 02, »)§, 
 23 N. W. 460. 
 
 37 Danalier v. Prentiss, 22 Wis. 311; Houston v. Walcott, 7 Iowa, 
 173; Burlington & M. R. Ry. Co. v. Hall, 37 Iowa, 620; Yarborougb 
 T. Thompson, 11 Miss. 291, 61 Am. Dee. 626. 
 
 (237) 
 
§ 192 LAW .OF GARNISHMENT. [Ch. 8 
 
 CHAPTER VIII. 
 
 EFFECT OF GARNISHMENT AS AN ATTACHMENT. 
 
 i 192. The Service of the Garnishment Attaches the Property or 
 Debt. 
 
 193. Creates a Specific Lien. 
 
 194. Places Property in Custodia Legis. 
 
 The Service of the Garnishment Attaches the 
 Property or Debt. 
 
 § 192. Garnishment is a mode of attachment,^ a 
 seizure by notice,^ which operates as an equitable 
 levy,^ but not as an assignment.* Service of the sum- 
 mons on the garnishee renders him liable to the plain- 
 
 1 American Cent. ins. Co. v. Hettler, 37 Neb. 849, 56 N. W. 711; 
 Bethel v. Judge of Superior Court, 57 Mich. 379, 381, 24_ N. W. 112; 
 Woodward v. Adams, 9 Iowa, 474; Teague v. Le Grand, 85 Ala. 493, 
 5 South. 287; State Nat. Bank v. Boatner, 39 La. Ann. 843, 2 South. 
 589; Nelson v. Sanborn, 64 N. H. 310, 9 Atl. 721; Tweedy v. Bogart, 
 56 Conn. 419, 15 Atl. 374; Cousens v. Lovejoy, 81 Me. 467, 17 Atl. 495. 
 
 2 Beamer v. Winter, 41 Kan. 596, 21 Pac. 1078; Barton v. Spencer 
 (Okl.) 41 Pac. 605. 
 
 ' Winner v. Hoyt, 68 Wis. 278, 32 N. W. 128; Globe Milling Co. v. 
 Boynton, 87 Wis. 619, 59 N. W. 132; Moore t. Kelley, 47 Ark. 219, 
 1 S. W. 97. 
 
 4 WHETHER AN ASSIGNMENT: "The service of the garnish- 
 ment neither changed nor interrupted the contractual relations exist- 
 ing. * * * The legal operation and the effect of the garnishment 
 proceedings, and the final order therein made, were only to im- 
 pound what was legally and equitably due from the garnishee. * * * 
 The claim made by the appellee that the garnishment service operated 
 as an equitable assignment to the garnishor of the due indebtedness 
 from the garnishee cannot be sustained, either upon reason or authori- 
 ty. The final order in that proceeding does not have the legal effect 
 of transferring the Chicago company's due indebtedness." North Chi- 
 (238) 
 
•Ch. 8] EFFECT OP GAKNISHMENT AS AN ATTACHMENT. § 192 
 
 tiff, from the time of service, for the value of all the de- 
 fendant's property in the hands of the garnishee and 
 the amount of all debts owing by him to the defendant 
 at the time of service; ° and he cannot escape liability 
 to the plaintiff therefor by aftervv^ards delivering or 
 paying it to the defendant or any one else," or allowing 
 it to escape from his control,' even though taken by an 
 
 cago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 590, 
 14 Sup. Ct. 710, 716, citing Chatterton v. Watney, 37 Ch. Div. 259, and 
 In re Combined Weighing & Advertisirg Mach. Co., 43 Ch. Div. 99. 
 See, also, Meriam v. Rundlett, 30 Mass. 511; Yazoo & M. V. Ry. Co. v. 
 Fulton, 71 Miss. 385, 14 South. 271. 
 
 CONTRA: "The trustee process operates as a specip's of compulsory 
 statutory assignment, by which a creditor may obtain that by opera- 
 tion of law which his debtor might voluntarily assign to him in pay- 
 ment of his debt." Strong v. Smith, 1 Mete. (Mass.) 476; Stee^ v. 
 Norton, 45 Wis. 412, 414; Secor v. Witter, 39 Ohio St. 218, 231; Als- 
 <lorf v. Reed, 45 Ohio St. 653, 17 N. E. 73; Bostwick v. Bryant, 113 
 Ind. 448, 16 N. E. 378; Campbell v. Nesbitt, 7 Neb. 300. 
 
 Maynards v. Cornwell, 3 Mich. 309, 311 ; Kennedy v. Brent, 6 
 Cranch, 187; Secor v. Witter, 39 Ohio St. 218, 229; Alsdorf v. Reed, 
 45 Ohio St. 653, 17 N. E. 73; Western Ry. Co. v. Thornton, CO Ga. 300, 
 306; Dorestan v. Krieg, 66 Wis. 604, 613, 28 N. W. 576; Nelson v. 
 Sanborn, 64 N. H. 310, 9 Atl. 721; Roberts v. Landecker, 9 Cal. 267; 
 St Louis, I. M. & S. Ry. Co. v. Richter, 48 Ark. 349, 3 S. W. 56; 
 Moore v. KeUey, 47 Ark. 219, 1 S. W. 97. 
 
 Gibson v. National Park Bank, 98 N. Y. 87, 95; First Nat. Bank 
 V. Turner, 30 Neb. 80, 46 N. W. 290; Tindell v. Wall, Busb. (N. C.) 3; 
 Farrell v. Pearson, 26 111. 463; Stevens v. Dillman, 86 111. 233; Kesler 
 V. St. Johns, 22 Iowa, 565; Hughes v. Monty, 24 Iowa, 499; Toledo, 
 W. & W. Ry. Co. V. McNulty, 34 Ind. 531; Johnson v. Carry, 2 Cal. 
 33; Wilder v. Weatherhead, 32 Vt. 765; Sargent v. Wood, 51 Vt 697; 
 Locke V. Tippets, 7 Mass. 149; West v. Piatt, 116 Mass. 308; Mason 
 V. Crabtree, 71 Ala. 479; Lady Ensley Furnace Co. v. Rogan, 95 Ala. 
 694, 11 South. 188. 
 
 t Trunkey v. Crosby, 33 Minn. 464, 23 N. W. 846; First Nat. Bank 
 V. Davenport Ry. Co., 45 Iowa, 126; Stedman v. Vickery, 42 Me. 132; 
 Aldrich v. Woodcock, 10 N. H. 99; Loyless v. Hodges, 44 Ga. 647; 
 
 (239) 
 
§ 193 LAW OF GARNISHMENT. [Ch. S 
 
 adverse claimant by virtue of legal process/ unless he 
 lias exhausted all legal means to prevent it, and with- 
 out avail." 
 
 Creates a Specific Lien. 
 
 § 193. Garnishment is a direct proceeding against 
 the debt or assets of the principal defendant in the 
 hands of the garnishee, and though, technically speak- 
 ing, it may not give a "specific lien" upon such indebt- 
 edness, its effect, in most states at least, in conferring 
 upon the plaintiff a specific right, over and above that 
 of a mere general creditor, to the indebtedness for the 
 payment of his claim, is substantially analogous to 
 that acquired by an attachment of tangible prop- 
 erty; " and, in case the garnishee is liable for specific 
 
 Derpatch Line v. Bellamy Manuf'g Co.. 12 N. H. 205; Cottrell v. Var- 
 num, 5 Ala. 229, 39 Am. Dec. 323. 
 
 s Calhoon v. Whittle, 56 Ala. 138; .Toliann v. Rufener, 32 Wis. 195, 
 198; Mobile & O. Ry. Co. v. Whitney, 39 Ala. 408; McCown v. Rus- 
 sell, 84 Wis. 122, 128, 54 N. W. 31; Locke v. Tippets, 7 Mass. 149; 
 Parker v. Kinsman, 8 Mass. 436; Trembly v. Clark, 13 Vt. 118; Homo 
 Mut. Ins. Co. V. Gamble, 14 Mo. 407. Compare Ronan v. Dewes, 
 17 Mo. App. 300. 
 
 s Johann v. Rufener, 32 Wis. 195, 198; Holmes v. Remsen, 4 Johns. 
 Ch. (N. Y.) 460, 20 Johns. (N. Y.) 229, and 11 Am. Dec. 269; Wheelei- 
 V. Winn, 38 Vt. 122. Compare Eddy v. O'Hara, 132 Mass. 56; Hooper 
 V. Benson, 1 Root (Conn.) 545; Booth v. Gish, 75 Iowa, 451, 89 N. W. 
 704. 
 
 10 North Star Boot & Shoe Co. v. Ladd, 32 Minn. 381. 20 N. W. 334; 
 Hawes v. Mooney, 39 Conn. 37; Harrell v. Mexico Cattle Co., 73 Tex. 
 612, 11 S. W. 803; White v. Simpson (Ala.) 18 South. 151; Hacker v. 
 Stevens, 4 McLean, 535, Fed. Cas. No. 5,887; Tindell v. Wall, Busb. 
 (N. C.) 3; Wallace v. McConnell, 13 Pet. 136, 150. 
 
 Whatever security the defendant had for the enforcement of pay- 
 ment of the debt, the plaintiff acquires. See ante, § 127. 
 
 "The trustee process is sometimes called 'attaching a debt,' be- 
 cause it creates a lien upon the debt, as attachment does upon per- 
 (240) 
 
Oh. 8] EFFECT OF GARNISHMENT AS AN ATTACHMENT. § 193 
 
 property of the defendant in his possession, the lien 
 acquired by the plaintiff, at least in most states, would 
 seem to be almost, if not quite, as complete as if the 
 property were actually in the hands of the sheriff." 
 
 sonal property. But the validity of the two liincls of lien rests on 
 wholly different grounds. Attachment of personal property must 
 be by taking possession of it, but no possession can be taken of 
 a debt. To make the lien valid against the debt, all that is required 
 is notice to the debtor." Cahoon v. Morgan, 38 Vt. 234, 236. 
 
 DISTINCTION BETWEEN GARNISHMENT OF PROPERTY 
 AND OF A DEBT: Shaw, O.J. : "The trustee process, provided for 
 by statute, manifestly contemplates two distinct classes of cases in 
 which a creditor may avail himself of its provisions to secure his 
 debt by attaching property in the hands of a third person: The one, 
 when the trustee has in his custody or under his control goods or 
 chattels liable by law to be attached on mesne process by the ordinary 
 writ of attachment; the other, where the trustee is a debtor to the 
 principal defendant, and owes him money, either due and payable 
 presently, or existing as a debt at the time of the attachment, though 
 payable at a future day. * * * xhis distinction is founded on the 
 statute rendering goods and credits, respectively, liable to attach- 
 ment. In the former case, the attachment binds the goods specifically, 
 creates a lien upon them of the same nature and to the same extent 
 as an ordinary attachment on mesne process, although the goods are 
 to stand charged in the hands of the trustee, so that the custody re- 
 mains with the trustee, instead of being taken by the attaching officer, 
 unless a subsequent attachment is made by another creditor, which 
 may be done, subject to the first rttachment." Allen v. Hall, .5 Mete. 
 (Mass.) 263. 
 
 "However it may be with specific property in the hands of the gar- 
 nishee, our conclusion is that garnishment does not give the creditor 
 any lien upon a debt owing by the garnishee to the debtor in the ac- 
 tion, nor upon any money or property with which he may after- 
 wards pay it." HuUey v. Chedic (Nev.) 36 Pac. 783. 
 
 11 Barton v. Spencer (Okl.) 41 Pac. 605; Bushman v. Hanna, 72 
 Md. 1, 18 Atl. 962; Bryan v. Lashley, 21 Miss. 28-1; Bethel v. .Judge 
 of Superior Court, 57 Mich. 379, 381, 24 N. W. 112; Banning v. Sib- 
 ley, 3 Minn. 389 (Gil. 282, 297); Wilder v. Weatherhead, 32 Vt. 765; 
 Tillinghast v. Johnson, 5 Ala. 514; Martin v. Foreman, 18 Ark. 249; 
 Bostwick V. Bryant, 113 Ind. 448, 16 N. E. 378; Beaumont v. Eason, 
 
 LAW GARNISH. 16 (241) 
 
§ 193 LAW OF GARNISHMENT. [Ch. 8 
 
 The garnishee may be ordered to deliver the property 
 into court/^ or enjoined from disposing of it, and pun- 
 
 12 Heisk. (Tenn.) 417, 421; Blaisdell v. Ladd, 14 N. H. 129; Bailey v. 
 Ross, 20 N. H. 302; Walcott v. Keith, 22 N. H. 190. 
 
 A personal judgment against the garnishee would not afford the 
 full benefit intended to be conferred by the statute; "that is, the right 
 to pursue the property and have it applied to the satisfaction of his 
 debt. If the right to recover such judgment were the only remedy, 
 an irresponsible person, in possession of the debtor's property, might 
 dispose of it, and leave tlie creditor only a worthless judgment against 
 him." Carter v. Koshland, 13 Or. 615, 12 Pac. 58. 
 
 A garnishee in possession of defendant's property has no right to 
 make himself a debtor by disposing of the property, and compelling 
 creditors to take a merely personal judgment against him. Shaver 
 Wagon & Carriage Co. v. Halsted, 78 Iowa, 730, 43 M. W. 623. 
 
 A LEVY CREATES A LIEN— A GARNISHMENT DOES NOT: 
 
 "In the one case, a lien is created upon the property. In the other, a 
 personal obligation and liability may be established against the one 
 holding the property. In the one case, the property itself is taken to 
 satisfy the creditor's claim. In the other, the personal liability of the 
 garnishee stands in lieu of the property. If the creditor be success- 
 ful in the one case, his claim is paid by sale of the property so taken. 
 In the other, he looks to the one whom the law holds liable for the 
 value of the property in his hands. In either case, the liability pri- 
 marily arises because of the existence of property in fact owned by 
 the debtor. In one case, a specific lien is created by levy or attach- 
 ment. In the other, while no lien is created upon or attaches to the 
 property itself, yet the effect, of the garnishment, is to confer upon 
 the creditor a right to the payment of his claim, by reason of the in- 
 debtedness existing from the garnishee to the defendant, or because of 
 the garnishee's having in his possession property of the defendant.'' 
 Citizens' State Bank v. Council Bluffs Fuel Co., 89 Iowa, 618, 57 N. W. 
 
 12 Johann v. Rufener, 32 Wis. 195, 19S; McGarry v. Lewis Coal Co., 
 93 Mo. 237, 6 S. W. 81. See, also, post, § 317. 
 
 Contra, as to property in mortgagee's hands. McConnell v. Denham, 
 72 Iowa, 494, 34 N. W. 298. 
 
 ABANDONED PROPERTY: The court may appoint a suitable 
 
 person to take charge, and, if necessary, dispose of specific property 
 
 attached by garnishment and abandoned by the garnishee after he is 
 
 served. Northfleld Knife Co. v. Sharpleigh, 24 Neb. 635, 39 N. W. 788. 
 
 (242) 
 
€h. 8] EFFECT OF GARNISHMENT AS AN ATTACHMENT. § 193 
 
 ished for contempt if he disobeys.^' After recovering 
 judgment, the plaintiff may maintain an action on the 
 
 444. For similar expressions, the reader is referred to the following 
 decisions: Mooar v. Walker, 46 Iowa, 164; McConnell v. Denham, 72 
 Iowa, 494, 34 N. W. 298; Clark v. Raymond, 80 Iowa, G61, 53 N. W. 
 354; Maish v. Bird, 48 Fed. 607; Moore v. Holt, 10 Grat. (Va.) 284. 
 
 "It is true that, by the garnishment of appellant, and said order 
 of court, the plaintiffs did not acquire a lien upon the securities 
 [insurance policies, notes, and books of account] in appellant's hands; 
 but they certainly did acquire such an interest therein as entitles 
 them to an accounting as to all of said securities.'' McDonald v. 
 Creager (Iowa) 65 N. W. 1021. 
 
 On the ground that garnishment creates no lien on specific property, 
 it was held, in Illinois, that a court of equity will not intervene, by 
 way of injunction or otherwise, to preserve the property in the gar- 
 nishee's hands, and that the plaintiff is only entitled to a personal 
 •judgment against the garnishee. Bigelow v. Andress, 31 111. 322. 
 
 Upon the ground that garnishment creates no lien upon specific 
 property of the defendant in the garnishee's hands, it has been held 
 that service of the garnishment process does not prohibit the garnishee 
 from disposing of the property, but only renders him personally liable 
 for a misappropriation, or failure to produce the property to satisfy 
 the judgment which may be rendered in the cause; and, therefore, 
 one obtaining the property for value from the garnishee, and without 
 knowledge of the garnishment, acquires a valid title against the gar- 
 nishing creditor, and is not liable to him in trover. McGarry v. Lewis 
 ■Coal Co., 93 Mo. 237, 6 S. W. 81. See, also, Walcott v. Keith, 22 N. 
 H. 196. 
 
 A subsequent attachment will not defeat the garnishment. Buck- 
 Benier Co. v. Be^tty, 82 Iowa, 353, 48 N. W. 96. See, also, ante, § 
 188. Compare Johnson v. Gorham, 6 Cal. 195, 65 Am. Dec. 501. 
 
 IS Johann v. Rufener, 82 Wis. 195, 198; Mally v. Altman, 14 Wis. 
 22; Almy v. Piatt, 16 Wis. 1G9; Bragg v. Gaynor, 85 Wis. 408, 481, 55 
 N. W. 919, 923; Lilienthal v. Wallach, 37 Fed. 241. 
 
 Held, that the injunction should be dissolved, when it is made to 
 appear that the garnishee is amply solvent. Sweet v. Oliver. 56 Iowa, 
 744, 10 N. W. 275. 
 
 The plaintiff cannot have writ of ne exeat to prevent the garnishee 
 leaving the state. Patterson v. Bowie, 1 Cranch, C. O. 425, Fed. Gas. 
 No. 10,825. 
 
 (243) 
 
§ 194 LAW OF GARNISHMENT. [Ch. ^ 
 
 case against one who took the property from the gar- 
 nishee and converted it to his own use while the gar- 
 nishment was pending.^* Of course, the summoning 
 of a garnishee as debtor does not create any lien on 
 any of his specific property." 
 
 Places Property in Custodia Legis. 
 
 § 194. By the weight of authority the service of the 
 garnishment summons places the property in the gar- 
 nishee's hands substantially in custodia legis/" where- 
 by the garnishee acquires special rights as agent of the 
 court,^' and is entitled to hold the property until the 
 question of his liability is determined, not only against 
 
 14 Aderholt v. Smith, 83 Ala. 486, 3 South. 794; Reed v. Fletcher, 24 
 Neb. 4So. 39 N. W. 437; Pocke v. Blum. 82 Tex. 430, 17 S. AA'. 770. 
 Contra, McGarry v. Lewis Coal Co., 93 Mo. 237, 6 S. W. 81. 
 
 OTHER PROCEEDINGS BEFORE .JUDGMENT: After service 
 of the garnishment on an administrator before judgment in the main 
 action, held, that the plaintiff is ostensibly interested in the accounting 
 of the administrator with the orphans' court, and may therein oppose 
 the allowance of the administrator's account. Reete's Appeal, 116 Pa. 
 St. 272, 9 Atl. 31.5. 
 
 15 Irwin V. McKecUnie, 58 Minn. 145, 59 N. W. 987. 
 
 IS Brashear v. West, 7 Pet. 608; Mattingly v. Boyd, 20 How. 128; 
 Northfield Knife Co. v. Sharpleigh, 24 Neb. 635, 39 N. W. 788; Math- 
 ews V. Smith, 13 Neb. 178, 12 N. W. 821; Focke v. Blum, 82 Tex. 430, 
 17 S. W. 770; State v. Llnaweaver, 3 Head (Tenn.) 51; Beamer v. 
 AVinter, 41 Kan. 596, 21 Pac. 1078; Barton v. Spencer (Okl.) 41 I'ac. 
 G05; Renneker v. Davis, 10 Rich. Eq. (S. C.) 289; Biggs v. Kouns, 7 
 Dana (Ky.) 405; Carter v. Koshland, 13 Or. 615, 12 Pac. 58. CON- 
 TRA, McGarry v. Lewis Coal 'Jo., 93 Mo. 237, 6 S. W. 81; Maish v. 
 Bird, 48 Fed. 607; Bigelow v. Audress, 31 111. 322. But see Smith 
 V. Clinton Bridge Co., 13 111. App. .572. 
 
 IT Erskine v. Staley, 12 Leigh (Ya.) 406. 
 (244) 
 
€h. 8] EFFECT OF GARNISHMENT AS AN ATTACHMENT. §194 
 
 the defendant and those claiming under him," but 
 even against the real owner, who is a stranger to the 
 garnishment suit." The property cannot afterwards, 
 while the suit is pending, be taken from him by at- 
 tachment; ^° but, if this should be done wrongfully, 
 or allowed, as it has been in Massachusetts, the plain- 
 tiff in attachment acquires no rights as against the 
 plaintiff in the garnishment previously served,^' and 
 the plaintiff in garnishment may sue and recover from 
 the attachment plaintiff the value of the property 
 taken. "^ 
 
 18 Gemberling v. Spaulding (Jlieh.) 02 N. W. 342; W.alcott v. Keitli. 
 22 N. H. 196. 
 
 The garnishee may maintain an action against tlie defendant, who 
 takes the property from him while the suit is pending, so that he 
 cannot turn it over, and has to pay its value. Deno v. Thomas, 64 Vt. 
 358, 24 Atl. 140. 
 
 i» Stiles V. Davis, 1 Black (U. S.) 101; Cooley v. Minnesota Transfer 
 Ry. Co., 53 Minn. 327, 55 N. W. 141; Van Ness v. McLeod, 2 Idaho, 
 1147, 31 Pac. 798. Compare Ash v. Aiken, 2 Tex. Civ. .A.pp. 83, 21 S. 
 W. 618. Contra, Booth v. Gish, 75 Iowa, 451, 39 N. W. 704. 
 
 20 Brashear v. West, 7 Pet. 608; Kendrick v. Boston & N. Y. C. Ry. 
 Co., 3 R. I. 235; Scholefield v. Bradlee, 8 Mart. (La.) 495; Dennistoun 
 V. New York C. & S. F. Co., 6 La. Ann. 782; Buck-Renier Co. v. Beat- 
 ty, 82 Iowa, 353, 48 N. W. 96; Erskine v. Staley, 12 Leigh (Va.) 406; 
 Grand Island Banking Co. v. Costello (Neb.) 63 N. W. 376; Barton v. 
 Spencer (Okl.) 41 Pac. 605. 
 
 21 Burlingame v. Bell, 16 Mass. 318; Swett v. Brown, 5 Pick. 178, 
 180; Piatt v. Brown, 16 Pick. 553, 555; Reed v. Fletcher, 24 Neb. 435, 
 39 N. W. 437, 447; Erskine v. Staley, 12 Leigh (Va.) 406; Focke v. 
 Blum, 82 Tex. 436, 17 S. W. 770; Grand Island Banking Co. v. Cos- 
 tello (Neb.) 63 N. W. 376; Barton v. Spencer (Okl.) 41 Pac. 605. But 
 see Booth v. Gish, 75 Iowa, 451, 39 N. W. 7(H. 
 
 2 2 Focke V. Blum, 82 Tex. 436, 17 S. W. 770; Reed v. Fletcher, 24 
 Neb. 435, 39 N. W. 437, 447. 
 
 (245) 
 
§ 195 LAW OF GARNISHMENT. [Ch. ^ 
 
 CHAPTER IX. 
 
 EFFECT OF GARNISHMENT AS A STAY OF OTHER PRO- 
 CEEDINGS AGAINST THE GARNISHEE. 
 
 § 195. What Actions are Stayed. 
 
 196. Manner of Pleading a Pending Garnishment— Cannot Abate 
 
 a Prior Suit. 
 
 197. ■ Ground for Continuance on Motion. 
 
 198. May be Pleaded in Abatement of Subsequent Suit. 
 
 199. Pending Garnishment cannot be Pleaded in Bar, nor in 
 
 Abatement— Ground Only for Stay. 
 
 200. Form of Pleading not Strictly Regarded. 
 
 201. Garnishment in Another Jurisdiction. 
 
 What Actions are Stayed. 
 
 § 195. Some of the statutes provide that no suit 
 shall be maintained or recovery had against the gar- 
 nishee for the debt or property involved in the garnish- 
 ment proceeding while the same is nending/ but the 
 same rule is applied in proceedings under statutes con- 
 taining no such provision.^ The rule just stated does 
 not operate to prevent actions against the garnishee 
 by any person not a party to the garnishment proceed- 
 
 : Nash V. Gale, 2 Minn. 310 (Gil. 205) ; Brande v. Bond, 63 Wis. 
 I'lO, 23 N. W. 101. 
 
 2 Grosslight v. Crisup, 58 Mich. 531, 25 N. W. 505; Burt v. Wayne 
 Circuit Judge, 82 Mich. 251, 46 N. W. 380; Gemberling v. Spauld- 
 Ing (Mich.) 62 N. W. 342; Mattingly v. Boyd, 20 How. 128; Embree 
 V. Hanna, 5 Johns. (N. Y.) 101; Brook v. Smith, 1 Salk. 280. 
 
 The omission of the court to charge the garnishee upon rendering 
 judgment against the defendant will not impair the garnishee's 
 right to set up the garnishment as a defense. Howe v. TefCt, 15 R. 
 I. 477, 8 Atl. 707. 
 (246) 
 
Ch. 9] GARNISHMENT AS A STAY OP PROCEEDINGS. § 195 
 
 ings and claiming adversely to the defendant therein,' 
 unless he has been notified to appear and defend his 
 rights in the garnishment suit ; * nor by the defendant 
 to recover property exempt from garnishment; ° nor 
 to recover the excess of the garnishee's liability over 
 what is necessary to satisfy the demands upon which 
 the garnishment issued; " nor for the recovery of 
 property or debts not attached, such as those for which 
 the garnishee has become liable since the Commence- 
 ment of the garnishment proceedings; ' nor by the de- 
 fendant or his assignee to recover the garnished prop- 
 erty after the garnishment is dismissed, although the 
 garnishee has received no notice of such dismissal;*' 
 nor does it prevent the plaintiff in garnishment at the 
 same time prosecuting other remedies to reach other 
 property, and have tlie same applied on his judg- 
 ment; " and a debtor cannot stay action against him- 
 self by suing his creditor upon another demand and 
 summoning himself as garnishee/" 
 
 s McAulifCe v. Farmer, 27 Micb. 7(j; Mnson v. Noonan, 7 Wis. G09. 
 Compare Butler v. Wendell, 57 Mi.li. UJ, 'S^ N. W. 460. 
 * Rothschild v. Burton, 57 Jlich. 540, 2.j N. W. 49. 
 
 6 See ante, § 95. 
 
 e Paul V. Roney, 94 Ga. 133, 21 S. E. 283. See, also, ante, § 1-12. 
 
 7 Nash Y. Gale, 2 Minn. 310 (Gil. 265). 
 
 8 Paul V. Roney, 94 Ga. 133, 21 S. E. 283. 
 » See ante, § 185. 
 
 10 New England Screw Co. v. Bliven, 3 Blackf. (Ind.) 240. 
 
 (247) 
 
§ 197 LAW OF GARNISHMENT. [Ch. 9 
 
 Manner of Pleading a Pending Garnishment. 
 
 Cannot Abate a Prior Suit. 
 
 § 196. At common law, although a prior suit for 
 the same cause may be pleaded in abatement of a sec- 
 ond, yet the subsequent suit could never be pleaded in 
 abatement of the first; and for this reason one who 
 has been sued by his creditor cannot plead, in abate- 
 ment of the suit, the fact that, after it was commenced, 
 he has been summoned as garnishee in an action 
 against the plaintiff." 
 
 Ground for Continuance on Motion. 
 
 § 197. In such cases the proper nractice is to bring 
 the fact of the garnishment to the attention of the 
 court by motion, petition, plea, or plea puis darrein 
 continuance, a& the circumstances may require, where- 
 upon the court will stay all proceedings before judg- 
 
 11 Wood V. Lake, 13 Wis. 84. 
 
 "Wben the garnishee suit is subsequent in point of time to that 
 of tlie principal defendant for the recovery of the debt, and before 
 judgment, it is plain to be seen that the garnishee will be twice 
 made liable for the debt unless he can bring these proceedings be- 
 fore the court by plea in abatement; and, to prevent such conse- 
 quence, it is his duty to do so at any stage in the progress of the 
 first suit, before judgment, and at the first opportunity. It can only 
 be Qone by a plea puis darrein continuance, or by notice authorized 
 by rule lOG. * * • The plaintiff claims that great inconvenience 
 will arise, as well as delay in the prosecution of the suit, by permit- 
 ting a plea in abatement at this stage of the proceedings. But the 
 statute has made provision by which such delay may be avoided, 
 and the suit proceed, by the plaintiff's availing himself of section 
 810.J, and filing the bond therein provided for, and tlius secure a dis- 
 continuance of the garnishee proceedings." Grosslight v. Crisup, 58 
 Mich. .531, 25 N. W. 505. 
 (248) 
 
Ch. 9] GARNISHMENT AS A STAY OF PEOCEEDINGS. § 198 
 
 ment, or allow judgment to be entered, with stay of 
 execution, in whole or in part, as iustice demands; ^^ 
 and if judgment has been rendered, execution will be 
 stayed till the garnishment is disposed of/' 
 
 May he Pleaded in Abatement of Subsequent Suit. 
 
 § 198. It has been held that the garnishment of a 
 debtor is ground for abatement of a subsequent action 
 against him by his creditor; ** and there are numerous 
 <;ases in which the courts have declared that, under 
 such circumstances, a plea in abatement is the proper 
 manner of presenting the defense, and would be sus- 
 tained." 
 
 12 Blair V. Hilgedick, 45 Minn. 23, 4T N. W. 310;' Smith v. Carroll, 
 17 R. I. 125, 21 Atl. 343; Burt v. A^'ayue Circuit Judge, 82 Micb. 
 251, 4G N. W. 380. 
 
 "It is always possible that process of courts may be abused, and 
 legal proceedings may be instituted for delay and annoyance; but 
 we cannot try such issues by mandamus, oi- assume that such is the 
 
 object or purpose of parties." Burt v. Wayne Circuit Judge, 82 Mich. 
 
 251, 4G N. W. 380. 
 
 13 Belcher v. Grubb, 4 Har. (Del.) 461; Gager v. Watson, 11 Conn. 
 168; Ulrich v. Hower, 156 Pa. St. 414, 27 Atl. 243; Allen v. Watt, 
 79 III. 284; Connor v. Hanover Ins. Co., 28 Fed. 549; Griffln v. Pot- 
 ter, 27 Mich. 166. 
 
 For further decisions on this subject, see ante, § 144. 
 
 14 Embree y. Hanna, 5 Johns. (N. Y.) 101; Brook v. Smith, 1 Salk. 
 280; Crawford v. Clute, 7 Ala. 157, 41 Am. Dec. 92. overruled in^ 
 Crawford v. Slade, 9 Ala. 887, 44 Am. Dee 463. 
 
 15 Near v. Mitchell, 23 Mich. 382; Grosslight v. Crisup, 58 Mich. 
 531, 25 N. W. 505; Irvine v. Lumberman's Bank, 2 Serg. & E. (Pa.) 
 190; Fitzgerald v. Caldwell, 1 Yeates (Pa.) 274;. Brown v. Summer- 
 ville, 8 Md. 444; Clise v. Preeborne, 27 Iowa, 280; Ladd v. Jacobs, 
 64 Me. 347; Mars v. Virginia Home Ins. Co., 17 S. C. 514; Mattingly 
 v. Boyd, 20 How. 128; Wallace v. McConnell, 13 Pet. 150; Cheong- 
 wo V. Jones, 3 Wash. C. C. 359, Fed. Cas. No. 2,638; Haselton v. 
 Monroe, 18 N. H. 598. 
 
 (249) 
 
§ 199 LAW OF GARNISHMENT. [Ch. & 
 
 Pending Garnishment cannot be Pleaded in Bar, nor in Abatement 
 — Ground Only for Stay. 
 
 § 199. Certainly, garnishment proceedings against 
 a debtor do not, before judgment in the garnishment 
 suit, bar the right of action by his creditor, but, a.t 
 most, simply suspend it; for non constat that judg- 
 ment will ever be rendered in the garnishment suit. 
 Therefore, such proceedings are not ground for a plea 
 in bar of the action by his creditors.^" 
 
 And nearly every court to which the question has 
 been squarely presented has held that it is not even 
 ground for a plea in abatement," but only for a stay of 
 proceedings, or continuance till the garnishment is dis- 
 posed of; and the proper manner of bringing the facts 
 to the attention of the court is by petition or motion 
 for continuance, based on affidavits setting up all the 
 material facts.^* 
 
 16 Near v. Mitchell, 23 Mich. 382; Clise v. Freebome, 27 Iowa, 280; 
 Ivvine v. Lumberman's Bank. 2 Serg. & R. (Pa.) 190; Cheongwo v. 
 Jones, 3 Wash. C. C. 359, Fed. Cas. No. 2,638; Pierson v. McCahlU, 
 21 Cal. 122; McKeon v. McDermott, 22 Oal. 667, 83 Am. Dec. 86;. 
 Jones V. W^ood, 30 Vt. 268; Hicks v. Gleason, 20 Vt. 139; Herlow v. 
 Orman, 3 N. M. 291, 6 Pac. 93.5; Shealy v. Toole, m Ga. 210; Mc- 
 Kee V. Brown, 45 Tex. 503. But see Wilson v. Murphy, 45 Mo. 409. 
 
 17 Winthrop v. Carlton, 8 Mass. 456; Crawford v. Slade, 9 Ala. 
 887, 44 Am. Dec. 463; McFadden v. O'Donnell, 18 Cal. 160; Morton . 
 V. Webb, 7 Vt. 123; Wadleigh v. Pillsbury, 14 N. H. 373; Lynch v. 
 Hartford Fire Ins. Co., 17 Fed. 627; Harvey v. Great Northern Ry. 
 Co., 50 Minn. 405, 52 N. W. 905. See, also. Smith v. Blatchford, 2 
 Ind. 184, 52 Am. Dec. 504; Yazoo & M. V. Ry. Co. v. Fulton, 71 
 Miss. 385, 14 South. 271; McDonald v. Carney, 8 Kan. 20; Fergu- 
 son V. Kansas City Bank, 25 Kan. 333. See ante, § 190. 
 
 18 McKeon v. McDermott. 22 Cal. 067, 83 Am. Dec. 86; Pierson r. 
 McCahill. 21 Cal. 129; Winthrop v. Carlton, 8 Mass. 456; Crawford v.. 
 
 (250) 
 
Ch. 9] GARNISHMENT AS A STAY OF PROCEEDINGS. § 200 
 
 Form of Pleading not Strictly Regarded. 
 
 § 200. But most of the courts are inclined to see 
 justice done, rather than refine upon matters of prac- 
 
 Slade, 9 Ala. 887, 44 Am. Dec. 403; Crawford v. Clute, 7 Ala. 157, 
 41 Am. Dec. 92; Van Ness v. McLeod, 2 Idaho, 1147, 31 Pac. 79S; 
 Wadleigh v. Pillsbury, 14 N. H. 373; McDonald v. Camey, 8 Kan. 
 20; Trembly v. Clark, 13 Vt. 118; Spicer v. Spicer, 23 Vt. C78; 
 Pbipps V. Rieley, 15 Or. 494, 10 Pac. 185. 
 
 JUDGMENT WITH STAY OP EXECUTION: In some states the 
 action of the creditor need not be stayed by garnishment proceed- 
 ings against his debtor in a suit against hlmseif, but no execution 
 can issue on the judgment rendered until the garnishee has been 
 discharged from further liability in the garnishment suit. Spicer v. 
 Spicer, 23 Vt. 078, GSO; Hicks v. Gleason, 20 Vt. 130, 142; Morton 
 V. Webb, 7 Vt. 123; Herlow v. Orman, 3 N. M. 291, 6 Pac. 935; 
 Yazoo & M. V. Ry. Co. v. Fulton, 71 Miss. 385, 14 South. 271; St. 
 Louis, I. M. & S. Ry. Co. v. Richter, 48 Ark. 349, 3 S. W. 50; llardeu 
 V. Wheelock, 1 Mont. 49. 
 
 Whether the defendants had been summoned or were chargeable, 
 in another action, as garnishees of the plaintifl' in respect of the 
 money sued for, is immaterial to the question whether the plaintiff 
 is entitled to a verdict in the case at bar. This case must proceed 
 so far as to ascertain what sum, if any, is due from the defend- 
 ants; and it is not to be delayed on account of the garnishment. 
 Creed v. Creed, 101 Mass. 107, 30 N. E. 749. 
 
 In Georgia the same end was accomplished by staying judgment 
 till the garnishment suit is disposed of, and then entering it for the 
 balance not paid in the garnishment suit. Shealy v. Toole, 56 Ga. 
 210. Compare Connor v. Hanover Ins. Co., 28 Fed. 549. 
 
 FAILURE OF GARNISHEE TO GET STAY- If, by his laches 
 or mistake, the garnishee has failed to procure a stay, that fact fur- 
 nishes no reason for a separate equitable action to compel the par- 
 ties to interplead. "When the defendant in an action is garnished 
 by a creditor of the plaintiff therein, we apprehend the practice is 
 for the court, on proper application, to stay all proceedings before 
 judgment, or permit judgment to be entered, with stay of execution, 
 as to the whole or a part of the judgment, as circumstances may 
 require." Blair v. Hilgedick, 45 Minn. 23, 47 N. W. 310. 
 SUFFICIENCY OF PLEA: "The answer was insufficient. It did 
 
 (251) 
 
§ 201 LAW OF GARNISHMENT. [Ch. 9 
 
 tice, and, therefore, are not disposed to regard rigidly 
 the manner of presenting the defense, so long as the 
 facts are made to appear.^" 
 
 Garnishment in Another Jurisdiction. 
 
 § 201. Does the fact that the garnishment and the 
 suit against the garnishee by his creditor are in differ- 
 ent jurisdictions affect the availability of the garnish- 
 not state the amount of the claims of any of the said parties against 
 the company, or show whether the whole, or what portion, of the 
 debt had been attached, or that any judgment had been rendered 
 against the defendant therein, or that any order had been made 
 upon his answer as garnishee. Drake, Attachm. § 705; Crawford 
 V. Clute, 7 Ala. 157, 41 Am. Dec. 92. The defect in the answer was 
 not cured by the reply, as that simply stated that the cases men- 
 tioned in the answer had been finally disposed of, and the defendant 
 released from all liability. We cannot gather, from either the an- 
 swer or reply, what portion, if any, of the debt was attached." 
 Clark V. Marbourg, 33 Kan. 471, 6 Pac. 548. Defects in such pleas 
 are cured by failure to urge them in the reply. Evitt v. Lowery 
 Banking Co., 9G Ala. 381, 11 South. 442. 
 
 10 In Rhode Island, it is said that it is only necessary to make it 
 appear to the court that justice requires a stay of proceedings, and 
 the manner of bringing it to the attention of the court need not be 
 strictly regarded. Smith v. Carroll, 17 K. I. 125, 21 Atl. 343. See, 
 also, Harvey v. Great Northern Ry. Co., 50 Minn. 405, 52 N. W. 905. 
 In Lynch v. Hartford Ins. Co., 17 Fed. G27, a plea in abatement 
 was filed, and the court overruled the plea, but ordered the cause 
 continued till the garnishment suit was disposed of. The same 
 course was pursued in Winthrop v. Cai'lton, 8 Mass. 456, and ap- 
 proved in Crawford v. Slade, 9 Ala. 887, 44 Am. Dec. 463, where it 
 Is also said that, if judgment is rendered, execution should be 
 stayed. In Jones v. Wood, 30 Vt. 268, the defendant pleaded the 
 pending garnishment suit in bar, and the court rendered judgment 
 in favor of the plaintifC, but ordered execution stayed. Followed in 
 Heilow V. Orman, 3 N. M. 291, 6 Pac. 935; St. Louis, I. M. & S. Ry. Co. 
 V. Richter, 48 Ark. 349, 3 S. W. 56; Bridges v. Sheldon, 7 Fed. 17, 
 41; Rhealy v. Toole, 56 Ga. 210. 
 (252) 
 
Ch. 9] GARNISHMENT AS A STAY OF PEOCEEDINGS. § 201 
 
 ment as a defense to the suit? We have already seen 
 that demands sued in one jurisdiction cannot, usually, 
 be garnished in another afterwards.^" It is also well 
 established that a plea of lis alibi pendens, that there 
 is another suit for the same cause between the parties 
 pending in foreign jurisdiction, is not a good plea." 
 But by the weight of authority, and for the best of rea- 
 sons, this rule does not apply to a plea of garnishment 
 pending against the defendant in another jurisdiction, 
 in a suit against the plaintiff. To apply the rule in 
 such cases would either subject the garnishee to 
 double liability, or render all garnishments nugatory 
 by permitting the owner of the garnished debt or prop- 
 erty to sue for and recover it after the garnishment, by 
 simply suing in another jurisdiction. For these rea- 
 sons the pendency of a prior garnishment in a suit 
 against the plaintiff in a foreign jurisdiction is always 
 a good plea.^^ 
 
 20 See ante, § 144. 
 
 21 Stanton v. Embry, 93 U. S. '548; Hatch v. Spofford, 22 Conn. 
 497, 58 Am. Dec. 433. 
 
 2^ Embree v. Hanna, 5 Jolins. (N. Y.) 101; Harvey v. Great North- 
 era Ry. Co., .50 Minn. 405. 52 X. W. 905: Yazoo & M. V. Ry. Co. v. 
 Pulton, 71 Miss. 385, 14 South. 271; Baltimore & O. Ry. Co. v. 
 May, 25 Ohio St. 347; Mattingly v. Boyd, 20 How. 128; Connor v. 
 Hanover Ins. Co., 28 Fed. 549. 
 
 For a consideration of questions involving conflict of laws, see 
 post. §§ 242-246. 
 
 Held, that a judgment against the garnishee, in favor of the de- 
 fendant, rendered by a court of a foreign jurisdiction in a suit com- 
 menced after the garnishment, cannot be pleaded in abatement of 
 the garnishment. Willard v. Sturm (Iowa) 65 N. W. 847. But see 
 ante, § 107. 
 
 "The general rule is that a plea of lis alibi pendens is not good 
 when the litigation is in a court of a foreign jurisdiction. We may 
 regret this, but it has been repeatedly so held. * * * I am fur- 
 
 (253) 
 
§ 201 LAW OF GARNISHMENT. [Ch. 9 
 
 It has been held that a plea of prior garnishment in 
 a foreign jurisdiction is not a good defense to a suit 
 by one claiming as assignee of the defendant before 
 the garnishment was instituted. ^^ In such cases the 
 
 ther of opinion that, in all ordinary cases, a continuance should be 
 granted ex comitate, that the plaintiffs in the foreign actions may 
 have an opportunity to make their attachment available." Lynch 
 V. Hartford Fire Ins. Co., 17 Fed. 627. 
 
 GARNISHMENT AFTER SUIT: "The plea shows that the proceed- 
 ings on the attachment were instituted after the commencement of this 
 suit. The jurisdiction of the district court of the United States and the 
 right of the plaintiff to prosecute his suit in that court having attached, 
 that right could not be arrested or taken away by any proceedings in 
 another court. This would produce a collision in the jurisdiction of 
 courts that would extremely embarrass the administration of jus- 
 tice. If the attachment had been conducted to a conclusion, and 
 the money recovered of the defendant, before the commencement of 
 the present suit, there can be no doubt that it might have been set 
 up as a payment upon the note in question. And if the defendant 
 would have been protected pro tanto, under a recovery had by vir- 
 tue of attachment, and could have pleaded such recovery in bar, the 
 same principle would support a plea in abatement of an attachment 
 pending prior to the commencement of the present suit The at- 
 tachment of the debt, in such case, in the hands of the defendant, 
 would fix it there, in favor of the attaching creditor, and the defend- 
 ant could not afterwards pay it over to the plaintiff. The attaching 
 creditor would, in such case, acquire a lien upon the debt, binding 
 upon the defendant, and which the courts of all governments, if 
 they recognize such proceedings at all, would not fail to regard. If 
 this doctrine is well founded, the priority of suit will determine the 
 right. The rule must be reciprocal, and where the suit in one court 
 is commenced prior to the institution of proceedings under attach- 
 ment in another court such proceedings cannot arrest the suit; and 
 the maxim 'qui prior est in tempore, potior est In jure,' must govern 
 the case." "Wallace v. McConnell, 13 Pet. 130, 150. See, also, Mack 
 V. Winslow, 59 Fed. 316, 8 C. C. A. 134; Wood v. Lake, 13 Wis. 84. 
 
 23 North British & Mercantile Ins. Co. v. First Nat. Bank of Ty- 
 ler, 3 Tex. Civ. App. 293, 22 S. W. 992. 
 Such assignee having been duly impleaded or having appeared as 
 (254) 
 
Ch. !)] GARNISHMENT AS A STAY OF PROCEEDINGS. § 201 
 
 garnishee should protect himself by filing a bill of in- 
 terpleader in some state where he can get service on 
 all the parties, or in a federal court.^* 
 
 claimant in the garnishment suit, such garnishment pending fur- 
 nishes good ground for. a plea in abatement of his subsequent suit 
 upon such demand In another state. German Bank v. American Fire 
 Ins. Co., 83 Iowa, 491, 50 N. W. 03. See, also, post, § 330. 
 24 See post, § 331. 
 
 (255) 
 
§ 202 LAW OF GARNISHMENT. [Ch. 10 
 
 CHAPTEE, X. 
 
 EFFECT OF GARNISHMENT AS A DEFENSE TO SUBSE- 
 QUENT LIABILITY. 
 
 § 202. In General— Complete Defense against Plaintiff and Defend- 
 ant. 
 
 203. ■ — - Not a Defense against Third Persons. 
 
 204. Unless Made Parties or Estopped. 
 
 205. When Garnishee has Made Full and Honest Defense. 
 
 206. Garnisliee's Knowledge that Others than Defendant Claim 
 
 the Property — At Time of Disclosing or before Judgment. 
 
 207. After Judgment Conditional or Absolute. 
 
 208. How Far Judgment against the Garnishee and Unpaid is a 
 
 Defense. 
 
 209. Mode of Satisfying the Garnishment Judgment— Without 
 
 Execution. 
 
 210. . In Something Other than Money. 
 
 211. How Far Garnishment Judgment is Res Judicata — Res Judi- 
 
 cata against the Plaintiff and the Garnishee. 
 
 212. Not lies Judicata against the Defendant and His Other 
 
 Creditors. 
 
 213. Essentials of a Judgment to be Valid as a Defense— Must 
 
 Show Jurisdiction and Compliance with Statute. 
 
 214. Presumptions in Favor of Jurisdiction and Regularity. 
 
 215. ♦ — Erroneous or Default Judgment is Protective, though 
 
 Reversed after Payment. 
 
 216. Judgment against Part of Sundry Obligors. 
 
 217. Bad Faith in the Garnishee. 
 
 218. How the Defense should be Pleaded and Proved— Whether 
 
 Admissible in Evidence under Genei-al Issue. 
 
 219. ■ — ■ What is Sufficient Special Plea or Notice. 
 
 220. What must be Proved, and How. 
 
 In General. 
 
 A Complete Defense against Plaintiff and Defendant. 
 
 § 202. The judgment rendered in the garnishment 
 proceedings is res judicata between the plaintiff and 
 (256) 
 
Ch. 10] GARNISHMENT AS A DEFENSE. § 202 
 
 the garnigliee/ and, for the amount which the gar- 
 nishee has been compelled to pay thereunder, consti- 
 tutes, if valid, a complete defense to any pending - or 
 subsequent action by the defendant against the gar- 
 nishee; ^ and, in actions by strangers thereto, is as 
 complete a defense as if payment had been made to the 
 
 1 Bethel v. Linn, 63 Jlich. AiU. 471, 30 N. W. S4; Adams v. Filer, 
 7 Wis. 306; Hewitt v. Foilett, 51 Wis. 264, 272, 8 N. W. 177. 
 
 ACTION FOli FRAUD IN DEFEATING GAKXISHMENT: The 
 plaintiff cannot afterwards sue the garnishee, claiming that he ob- 
 tained his discharge by fraud and perjury, and thereby defrauded 
 the plaintiff of his just lien on tlie garnished property; for that 
 would, in effect, be trying over the old issue. Lyford v. Demerritt, 
 32 N. H. 234. Tlie plaintiff cannot afterwards sue the defendant 
 for the same alleged fraud as was tried in the garnishment suit. 
 Bunker v. Tufts, 57 Me. 417. 
 
 After recovering judgment in garnisliment against A., as purchas- 
 er of certain goods from B., the creditor of B. cannot attach the 
 goods, on the ground that the sale to A. was fraudulent. Carter v. 
 Smith, 23 Wis. 497. Compare Boyle v. >Iaroney, 73 Iowa, 70, 35 N. 
 W. 145. 
 
 2 Foster V. .Tones. 15 Mass. 185; Cole v. Flitcraft, 47 Md. .312; Allen 
 V. Watt, 79 111. 284. 
 
 3 Fasquelle v. Kennedy, 55 Mich. 306 21 N. W. 347; Crone v. 
 Braun, 23 Jlinn. 239; Somers v. Losey, 48 Mich. 296, 12 N. W. 188; 
 Bethel v. Judge Superior Court, 57 Mich. 579. 382, 24 N. W. 112; 
 Bethel v. Linn, 63 Mich. 464, 471, 30 X. W. 84; Adams v. Filer, 7 
 Wis. 306; Bushnell v. Allen, 48 Wis. 460, 4 N. W. 599; Wlgwall v. 
 Union Coal & Min. Co., 37 Iowa, 129; Dole v. Bout well, 1 Allen 
 (Mass.) 286; Jarvis v. Mitchell, 90 Mass. 530; Coates v. Roberts, 1 
 Rawle (Pa.) 100; Anderson v. Young, 21 Pa. St. 443; Skelly v. 
 Westminister School Dist., 103 Cal. 652, 37 Pac. 643; Hitt v. Lacj", 
 3 Ala. 104, 36 Am. Dec. 440; Mills v. Stewart, 12 Ala. 90; Itoss a. 
 Pitts, 39 Ala. 606; Cheairs v. Slaten, 3 Humph. (Tenn.) 101; Killsa 
 v. Lermond, 6 Me. 116; Ladd v. .lacobs, 64 Me. 347; Somerville v. 
 Brown, 5 Gill (Md.) 399; Sandburg v. Papineau, 81 111. 446; Telles 
 V. Lynde, 47 Fed. 912; City of New Bedford, 20 Fed. 61; Insurance 
 Co. of North America v. Friedman, 74 Tex. 56, 11 S. W. 1046. 
 
 If for no other reason, payment having been once compelled by 
 LAW GARNISH. — 17 (257) 
 
§ 202 LAW OF GARNISHMENT. [Ch. 10 
 
 defendant himself.* "A garnishee who is compelled 
 to pay his debt to his creditor's creditor is not merely 
 subrogated to the latter's right, and forced to resort to 
 set-off for his protection. The payment is itself a re- 
 lease pro tanto." '^ 
 
 legal process, the debtor ought not to be required to pay again; and 
 therefore a judgment rendered against one in a foreign country is 
 as valid a defense as if rendered in the forum where he is subse- 
 quently sued. Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 400, 20 Johns. 
 229, and 11 Am. Dee. 209; Barrow v. West, 23 Pick. (Mass.) 270. 
 
 But, when the judgment was rendered by a court of a sister state, 
 the defense rests on the additional ground that full faith and credit 
 must be given in each state to the judicial proceedings of every 
 other state. U. S. Const, art. 4, § 1. And therefore a garnishment 
 judgment which would be a valid defense in the state where it was 
 rendered is an equally valid defense in every other state. Chicago, 
 B. & Q. Ry. Co. V. Moore, 31 Neb. 629, 48 N. W. 475; Cochran v. 
 Fitch, 1 Sandf. Ch. (N. Y.) 142; Morgan v. Neville, 74 Pa. St. 52; 
 Hull V. Blake, 13 Mass. 152; Baltimore & O. Ry. Co. v. May, 25 
 Ohio St. 347; Wheeler v. Winn, 38 Vt. 122. See, also, Moore v. 
 Spackman, 12 Serg. & R. (Pa.) 287; Moore v. Chicago, R. I. & P. 
 Ry. Co., 43 Iowa, 385; Noble v. Thompson Oil Co., 09 Pa. St. 409, 79 
 Pa. St. 354, and 21 Am. Rep. 66; Bolton v. Pennsylvania Co., 88 
 Pa. St. 261; Gunn v. Howell. 35 Ala. 144; Taylor v. Phelps, 1 Har. 
 & G. (Md.) 492; Neuf elder v. German-American Ins. Co., 6 Wash. 
 336, 33 Pac. 870. 
 
 JUDGMENT FOR DEBT NO DEFENSE TO SUIT FOR PROP- 
 ERTY: Held, that a judgment rendered for indebtedness confessed 
 does not discharge the garnishee for property in his possession be- 
 longing to the defendant. Briggs v. McEwen, 77 Iowa, 303, 42 N. 
 W. 303. 
 
 -- Brown v. Dudley, 33 N. H. 511. 
 
 G., being at the same time pursued in different suits by different 
 creditors, one suit being against W. D., and the other against T. D., 
 denied liability to either, and, his answer being contested In each 
 suit, judgment was rendered against him in both, whereupon he paid 
 
 5 St. Louis, I. M. & S. Ry. Co. v. Richter, 48 Ark. 349, 3 S. W. 50; 
 Cross V. Brown (R. I.) 33 Atl. 147, 15;^. 
 (258) 
 
Ch. 10] GARNISHMENT AS A DEFENSE. § 204 
 
 Not a Defense against Third Persons. 
 
 § 203. But, as every person is entitled to his day in 
 court before his rights are or can be litigated and con- 
 cluded, such judgment cannot affect the rights of any 
 one not a party or privy to it." 
 
 Unless Made Parties or Estopped. 
 
 § 204. But one who has been served with notice of 
 an order of court that he appear in the garnishment 
 suit and defend his rights to the property garnished, 
 and who has failed to do so/ or who, upon receipt of 
 such notice, appears and becomes a party to the ac- 
 
 one judgment, and filed a bill to enjoin collection of the other. Held, 
 that the bill was proijerly dismissed. Gibson v. Cohen, 85 Ga. 850, 
 11 S. E. 141. 
 
 6 Littlefleld v. Hodge, 6 Mich. 326; First Nat. Bank v. Mellen, 45 
 Mich. 413, 8 N. W. 80; Union Bank v. Hanish, 97 Mich. 404, 56 N. W. 
 768; Levy v. Miller, 38 Minn. 526, 38 N. W. 700; Adams v. Filer, 7 
 Wis. 306; Emmons v. Dowe, 2 Wis. 322, 358; State v. Judge County 
 Court, 11 Wis. 53; Olin v. Figeroux, 1 McMul. (S. C.) 203; Lawrence 
 V. Lane, 4 Gilman (111.) 354; Cooper v. McClun. 16 111. 435; Miller m 
 McLain, 10 Yerg. (Tenn.) 245; Gates v. Kerbey, 13 Mo. 157; Funk- 
 houser v. How, 24 Mo. 44; Dobbins v. Hydt, 37 Mo. 114; Wilson v. 
 Murphy, 45 Mo. 409; Mankin v. Chandler, 2 Brock. 125, Fed. Cas. 
 No. 9,030; Lyman v. Cartwright, 3 E. D. Smith (N. Y.) 117; Enos v. 
 Tuttle, 3 Conn. 27; Wise v. Hilton, 4 Me. 435; Tim v. Franklin, 87 
 Ga. 93, 13 S. E. 259. 
 
 7 Rothschild V. Burton, 57 Mich. 541, 25 N. W. 49; Spafford v. 
 Page, 15 Vt. 490; Marsh v. Davis, 24 Vt. 362; Seward v. Heflin, 20 
 Vt. 144; Smoot v. Eslava, 23 Ala. 659; Stevens v. Dillman, 86 111. 
 233; Emery v. Davis, 17 Me. 252; The St. Louis, 48 Fed. 312. 
 
 But summoning a claimant to answei; as garnishee and not as 
 claimant is not sufficient; for, although a garnishee in the same 
 action, he is not a party to the proceedings against the first gar- 
 nishee, nor bound by the judgment against him. Emmons v. Dowe, 
 2 Wis. 322, 358; Edwards v. Levisohn, 80 Ala. 447, 2 South. 161; 
 Rice V. Jones, 103 N. C. 226, 9 S. E. 571. 
 
 A surety on a bond of restitution executed by the defendant is 
 
 C250) 
 
§ 204 LAW OF GARNISHMENT. [Ch. 10 
 
 tion,' or who, knowing of the garnishment, and being 
 present at the trial, says nothing, but allows judgment 
 to pass against the garnishee, and be paid, before mak- 
 ing any claim to the property," or whom the garnishee 
 has notified to appear and defend his rights in the gar- 
 nishment suit, or be bound by the judgment rendered 
 therein, and who has disregarded such notice, and 
 failed to appear or defend,^" will be bound thereby, 
 
 not a party to or bound by the judgment against the garnishee. 
 Tim T. Pranldin, 87 Ga. 93, 13 S. E. 259. As to the sufficiency of the 
 notice, see post, § 341. 
 
 8 Providence Inst, for Sav. v. Barr, 17 R. I. 131, 20 Atl. 245; Fisk 
 V. Weston, 5 Me. 410. 
 
 When the claimant appeared, and was ruled out by the court, and 
 the garnishee did not attempt to show claimant's rights, held, that 
 the judgment would not protect the garnishee. Hardy v. Hunt, 11 
 Cal. 343, 70 Am. Dec. 787; JIuse v. Lehman, 30 Kan. 514, 1 Pac. 804. 
 
 Alter judgment against the claimant on the merits of his claim, he 
 is concluded, and the garnishee cannot maintain a bill of inter- 
 pleader against him and the plaintiff. Providence Inst, for Sav. v. 
 Barr, above. 
 
 9 Drennon v. Ross, 2 Colo. App. 181, 29 Pac. 1041. 
 
 Compare Wentworth v. Weymouth, 11 Me. 446, in which case the 
 claimant gave me garnishee notice before he made his disclosure, 
 but furnished him no evidence of the genuineness of his claim, for 
 want of which the garnishee was charged, and the judgment held 
 conclusive against the claimant. For similar cases, see Wood v. 
 Partridge, 11 Mass. 488; Wigwall v. Union Coal &; Jlin. Co., 37 Iowa., 
 129; McAllister v. Brooks, 22 Me. 80, 38 Am. Dec. 282; Giddings v. 
 Coleman, 12 N. H. 153. 
 
 10 Randell v. Way, 111 Mass. 500; City of Boston v. Worthington, 
 10 Gray (Mass.) 490. 
 
 And see the following qjises, where the same opinion is expressed, 
 thovtgh not involved in the decision; Born v. Staaden, 24 111. 320; 
 Pierce v. Chicago & N. W. Ry. Co., 30 Wis. 288; Hanaford v. Haw- 
 kins (R. I.) 28 Atl. 605; Adams v. Filer, 7 Wis. 306, 324; Butler v. 
 Wendell, 57 Mich. 68, 23 N. W. 460; Crisp v. Ft. Wayne & B. Ry. Co., 
 98 Mich. 648, 652, 57 N. W. 1050; Smith v. Ainscovt', 11 Neb. 476, » 
 N. W. 646. Compare Pounds \ . Hanmtr, 57 Ala. 342. 
 (200) 
 
Ch. 10] GARNISHMENT AS A DEFENSE. § 205 
 
 and estopped thereafter to make any claim against the 
 garnishee for the property involved in the garnishment 
 suit, and which the garnishee has paid or delivered in 
 satisfaction of the judgment rendered against him as 
 such. 
 
 When Garnishee has Made Full and Honest Defense. 
 
 § 205. Moreover, if the garnishee has acted fairly 
 and honestly, disclosed all the facts within his knowl- 
 edge relative to the right to the indebtedness for which 
 he is sought to be charged, reasonablv supposed him- 
 self indebted to the defendant, and had no actual no- 
 tice that any one else claimed any interest in the debt 
 garnished, payment of the garnishment judgment ren- 
 dered against him therefor will discharge the debt, 
 and be an absolute defense to any subsequent action 
 brought against him therefor, even by one who owned 
 the debt at the time the garnishment suit was begun." 
 Every defense, arising before notice of assignment, 
 which could be urged by a debtor against his original 
 creditor, may be as effectually urged against the as- 
 signee of such creditor; and therefore garnishment 
 judgment against the debtor, before he had notice of 
 an assignment, is a complete bar pro tanto to any fu- 
 ture claim against him by such assignee.* The writer 
 
 11 Edwards v. McEnhill, 51 Mich. 160, 16 N. W. 322; King v. Vance, 
 46 Ind. 246; Mowry v. Crocker, 6 Wis. 326; MacDonald v. Kneeland, 
 5 Minn. 352 (Gil. 283); Hull v. Blalie, 13 Mass. 153; Bostwick v. 
 Bryant, 113 Ind. 448, 16 N. E. 378; Warren v. Copelin, 4 Mete. (Mass.) 
 594; Yocum v. White, 36 Iowa, 288. 
 
 *Himrod v. Bough, 85 111. 435; Howe v. Jones, 57 Iowa, 130, 8 N. 
 W. 451; Dodd v. Brott, 1 Minn. 270 (Gil. 205), 66 Am. Dec. 541; 
 Walters v. Washington Ins. Co., 1 Iowa, 405; McCoid v. Beatty, 12 
 Iowa, 299; Golsan v. Powell, 32 La. Ann. 1521; Maloney v. Casey 
 
 (261) 
 
§ 206 LAW OF GARNISHMENT. [Ch. 10 
 
 is of opinion that the same absolute immunity would 
 be extended the garnishee in all cases where he has 
 been compelled to pay the debt after full and honest 
 defense, disclosing all facts in his knowledge relative 
 to the title to the property/^ 
 
 Garnishee's Knov^ledge that Others than the De- 
 fendant Claim the Property. 
 
 At Time of Disclosing or before Judgment. 
 
 § 206. If the garnishee have notice, at the time he 
 makes his disclosure, that any person other than the 
 defendant claims any interest in the property gar- 
 nished, whether by assignment from the defendant or 
 otherwise," and especially if his dealings have been 
 
 (Mass.) 41 N. B. 101. Compare Woodbriclge v. Perkins, 3 Day (Conn.) 
 364; Clodfelder v. Cox, 1 Sneed (Tenn.) 330, 60 Am. Dec. 157; Penni- 
 man v. Smith, 5 Lea (Tenn.) 130; Robertson v. Baker, 10 Lea (Tenn.) 
 300; Richards v. Griggs, 16 Mo. 416, 57 Am. Dec. 240; Ward v. Mor- 
 rison, 25 Vt. 593; Van Buskirk v. Hartford Ins. Co., 14 Conn. 141, 30 
 Am. Dec. 473. 
 
 It has been held that negotiable paper does not cease to be so by 
 becoming overdue; therefore, that a transfer binds the maker, without 
 notice to him, so as to deprive him of the defense of payment by 
 garnishment in a suit against the payee before notice of the transfer. 
 Knlsely v. Evans, 34 Ohio St. 158; Eduey v. Willis, 23 Neb. 56, 36 N. 
 W. 300. Contra, McCoid v. Beatty, 12 Iowa, 299; Mills v. Stewart, 
 12 Ala. 90; Culver v. Parish, 21 Conn. 408. 
 
 12 Wentworth v. Weymouth, 11 Me. 446; Hull v. Blake, 13 Mass. 
 153; Wilkinson v. Hall, 6 Gray (Mass.) 568; Meriam v. Rundlett, 13 
 Pick. (Mass.) 511; Whipple v. Robblns, 97 Mass. 107, 93 Am. Dec. 64; 
 Spafford v. Page, 15 Vt. 490; Seward v. Heflin, 20 Vt. 144; Work v. 
 Brown, 38 Neb. 498, 56 N. W. 1082. 
 
 13 Kimball v. Macomber, 50 Mich. 362, 15 N. W. 511; Tabor v. 
 Van Vranken, 39 Mich. 793; Union Bank v. Hanish, 97 Mich. 404, 56 
 N. W. 768; Wilson v. Groelle, 83 Wis. 530, 53 N. W. 900; Butler v. 
 MuUen, 100 Mass. 453; Wardle v. Briggs, 131 Mass. 518; Rutherford 
 
 (262) 
 
CI). 10] GARNISHMENT AS A DEFENSE. § 206 
 
 directly with such other persons," or the property was 
 exempt from garnishment," or if, at any time before 
 judgment is rendered against him, he learns of any 
 claimants of the property, good faith requires that he 
 should bring the facts to the knowledge of the court, 
 that the parties may be cited to appear and defend 
 their claim; and, if he fails to do so, the judgment re- 
 covered against him, and paid, will be no protection to 
 him against the subsequent action of such claimant.^" 
 
 V. PuUerton, 89 Ga. 353, 15 S. E. 471; Prescott v. Hull, 17 Jobiis. (N. 
 Y.) 284; Larrabee v. Kniglit, CO Me. 320; Milliken v. Loring, 37 Me. 
 408; Hardy y. Hunt, 11 Cal. 343, 70 Am. Dee. 787; Pliipps v. Rieley, 
 15 Or. 494, 16 Pae. 185; Colvin v. Rieh. 3 Port. (Ala.) 17."); .Tohns t. 
 Field, 5 Ala. 484; Klmbrough v. Davis, 34 Ala. .590; Town of Wood- 
 lawn V. Purvis (Ala.) 18 South. 530; Smith v. Ainscow, 11 Neb. 476, 
 9 N. W. 046; Parker v. Wilson. 61 Vt. 116, 17 Atl. 747; Marsh v. 
 Davis, 24 Vt. 363; Seward v. Heflin. 20 Vt. 144; Coleman v. Sc-ott, 
 27 Neb. 77, 42 N. W. 8911; Large v. Jloore, 17 Iowa, 2.18; Stockton 
 T. Hall, Hardin (Ky.) 160; Bibb v. Tomberlin. 1 Duv. (Ky.) ISii; Kitz 
 inger v. Beck, 4 Colo. App. 206, 35 Pac. 278. 
 
 14 Adams v. Filer, 7 Wis. 306; ]\IcAuliffe v. Farmer, 27 Mich. 76; 
 Hosley v. Scott, 59 Mich. 420, 26 N. W. 659; Allen v. Spafford, 42 Vt. 
 116. 
 
 When the garnishee delivered the property to a claimant of it after 
 the garnishment was served, and took an indemnity bond, and then 
 allowed judgment to pass against him without showing the claim- 
 ant's rights, and then assigned the indemnity bond to the plaintiff in 
 garnishment, who sued upon it, the court held the bondsmen not lia- 
 ble. Schempp v. Fry, 165 Pa. St. 510, 30 Atl. 941. 
 
 15 See ante, §§ 83, 85. 
 
 10 Foster V. White, 9 Port. (Ala.) 221; Crayton v. Clark, 11 Ala. 
 787; Greentree v. Rosenstock, 34 N. Y. Super. Gt. 505, 61 N. Y. 593; 
 Noble V. Thompson Oil Co., 79 Pa. St. 334, 21 Am. Rep. 66; Lewis v. 
 Dunlap, 57 Mi.ss. 130; Cross v. Haldeman, 15 Ark. 200. 
 
 The same rule is applied where the garnishee, in his disclosure, 
 simply suggested the fact of the alleged assignment, and paid the 
 money into court, and suffered judgment to be entered against him 
 without objection. The payment was voluntary, and no protection to 
 
 (2(J3^ 
 
§ 207 LAW OF GARNISHMENT. [Uh. 10 
 
 A[l&r Judgment Conditional or Absolute. 
 
 § 207. If default has been entered against the gar- 
 nishee, or conditional judgment, and, before jtbe time 
 for hearing of the summons to show cause why judg- 
 ment should not be made absolute against him, the 
 garnishee learns of claimants to the property, it would 
 seem proper, for his protection, that he should bring 
 the fact to the knowledge of the court, at such hearing, 
 as reason why judgment should not pass against him 
 till the rights of the claimants are inquired into by 
 making them parties to the proceedings.^' If abso- 
 lute judgment has been rendered against the garnishee 
 before he received notice of the claim, by assignment 
 or otherwise, probably the subsequent payment of it 
 would afford him protection against the claimant in 
 all cases where payment before notice would have 
 done so.^' 
 
 the action by the assignee, who had no part in the proceedings. But- 
 ton V. Trader, 75 Mich. 295, 42 N. W. 834. 
 
 So, too, where the garnishee made the disclosure, showing all the 
 facts, and then allowed judgment to be rendered against him by 
 default on issue made, and the property to be talien from him on 
 execution. Horton v. Grant, 56 Miss. 404. 
 
 "The garnisiiee is bound to make eveiy just and legal defense which 
 other parties interested in the fund in his hands could make, or he 
 will be answerable to them therefor." Baldy v. Brady, 15 Pa. St. 
 103; Schempp v. Fry, 165 Pa. St. 510, 30 Atl. 941. 
 
 17 MePhail v. Hyatt, 29 Iowa, 137; Johns v. Field, 5 Ala. 484; 
 Smith T. Blatchford, 2 Ind. 184, 52 Am. Dec. 504. Compare Oldham 
 V. Ledbetter, 2 Miss. 43, 26 Am. Dec. 690; Yarborough v. Thompson, 
 11 Miss. 291, 41 Am. Dec. 626. 
 
 18 Hull V. Blake, 13 Mass. 152; Covert v. Nelson, 8 Blackf. 265; 
 Cooke V. Boss, 22 Ind. 157; Newmau v. Manning, 79 Ind. 218; 
 Walters v. Washington Ins. Co., 1 Iowa, 404; Yocum v. White, 36 
 Iowa, 288; McAllister v. Brooks, 22 Me. 80, 38 Am. Dec. 282; Can- 
 
 (264) 
 
Ch. 10] GARNISHMENT AS A DElOiNS?:. § 208 
 
 How Far Judgment against the Garnishee and 
 Unpaid is a Defense. 
 
 § 208. It has been generally held that the final 
 judgment against the garnishee, as such, although un- 
 paid, constitutes, to the amount of the garnishment 
 judgment, a complete bar to any action by the princi- 
 pal defendant or his assignee against the garnishee." 
 But some of the courts hold that satisfaction of the 
 
 aday v. DetriC'k, 63 Ind. 485; Bostwick v. Bryant, 113 Ind. 448, 16 N. 
 E. 378. 
 
 Held, that the claimant may intervene after judgment against the 
 garnishee. Edwards v. Cosgro, 71 Iowa, 296, 32 N. W. 350; Me- 
 Guire v. Pitts' Sons, 42 Iowa, .535; Union Pac. Ry. Co. v. Smersh, 22 
 Neb. 751, 36 N, W. 139. Contra, Heyward v. Phillips-Buttoff Manuf'g 
 -Co., 97 Ala. 533, 11 South. 837. 
 
 19 Perkins v. Parker, 1 Mass. 117; Hull v. Blake, 13 llass. 152; 
 ■Covert V. Nelson, 8 Blackf. (Ind.) 265; King v. Vance, 46 Ind. 246; 
 Bostwick v. Bryant, 113 Ind. 448, 16 N. E. 378; Sessions v. Stevens, 
 1 Fla. 233, 46 Am. Dec. 339; Coburn v. Currens, 1 Bush (Ky.) 242; 
 Matthews v. Houghton, 11 Me. 877; NoiTis v. Hall, 18 Me. 332; Mc- 
 AUister v. Brooks, 22 Me. 80. 38 Am. Dec. 282; Savage's Case, 1 
 Salk. 291; McDaniel v. Hughes, 3 East, 367; TurnbuU's Case, 1 
 Saund. 67, note 1. Compare Pasquelle v. Kennedy, 55 Mich. 305, 
 21 N. W. 347. 
 
 But the judgment must be final, McPliail v. Hyatt, 29 Iowa, 137; 
 and still in force, Sargeant v. Andrews, 3 Me. 199. 
 
 A judgment from which the garnishee has appealed is not pleadable 
 in bar. McCarty v. The City of New Bedford, 4 Fed. 818. 
 
 In Georgia, though a garnishment judgment, unpaid, against the 
 maker of a note, is not a defense to an action thereon by an indorsee 
 receiving it since the commencement of the garnishment suit, yet, 
 after action brought by the indorsee, the maker could pay the gar- 
 nishment judgment, and such payment would discharge him from 
 liability to the indorsee in the subsequent action. Brannon v. Noble. 
 8 Ga. 549. In I'ennsylvfinia and Maryland, it seems that it must ap- 
 pear, at least, that execution has been levied under the garnishment 
 judgment, or it will not be available as a defense to the subsequent 
 
 (205) 
 
§ 209 LAW OF GARNISHMENT. [Ch. 10 
 
 garnishment judgment is necessary to make it a bar to 
 the subsequent action.^" 
 
 Mode of Satisfying the Garnishment Judgment. 
 
 Without Execution. 
 
 § 209. If the judgment against the garnishee is 
 valid, and has been paid, to +he satisfaction of the 
 plaintiff in garnishment, it is difficult to see how the 
 manner of payment can be of any importance. ^^ The 
 
 action. Lowry v. Lumbermen's B.'ink, 2 Watts & S. 210; Brown \ . 
 Somerville, 8 Md. 444. Compare Cheong-wo v. Jones, 3 Wasb. C. C. 
 359, Fed. Cas. No. 2,638. 
 
 2 Cook V. Field, 3 Ala. 53, 36 Am. Dec. 436, Sharpe v. Wharton. 
 85 Ala. 225, 3 Sontli. 787; Farmer v. Simpson, 6 Tex. 303; Wise v. 
 Hilton, 4 Me. 4.S5; Yazoo & M. V. Ry. Co. v. Fulton, 71 Miss. 385, 14, 
 Soutli. 271; McCarty v. The City of New Bedford, 4 Fed. 818. 
 
 In Flower v. Parker. 3 Mason, 247, Fed. Cas. No. 4,891, the plaintiff 
 in garnishment had allowed his judgment to become dormant, and it 
 was held that he had thereby lost his lien, and the garnishee was 
 liable to tlie plaintiff in the subsequent action. 
 
 In Meriam v. Rundlett, 13 Pick. (Mass.) 511, that court departed 
 from its former ruling, and, in holding the garnishment judgment 
 unpaid to be no bar to the subsequent action, used the following 
 language: "He who pays under judgment of a tribunal having le- 
 gal jurisdiction to decide, and adequate power over the person or 
 property to compel obedience to its decisions, has an indisputable 
 claim to protection. But, upon general principles, one who has not 
 yet been compelled to pay, and who may never be obliged to pay. 
 to another, who has attached the debt in his hands, although he 
 may have good right to insist that proceedings ought not to be com- 
 menced or prosecuted against him while his hands are tied, and he 
 is legally prohibited from paying his debt, and so may have good 
 ground for an abatement or stay of proceedings, seems in no condi- 
 tion to deny the plaintiff's right to recover his debt, absolutely, and 
 forever." 
 
 Payment by note is sutticient payment. Dole v. Boutwell, 1 Al- 
 len (Mass.J 286. 
 
 21 BY COMPROMISE: But the supreme court of Maryland has de- 
 (2G6) 
 
Ch.i 10] GARNISHMENT AS A DEFENSE. § 209 
 
 garnishee need not wait till execution has been issued 
 against him on the garnishment judgment, but may 
 voluntarily satisfy the judgment, as soon as it has be- 
 come binding upon him, and execution might regu- 
 larly issue, and payment thus made will afford him 
 complete protection,^^ although the judgment in the 
 principal suit be afterwards set aside.^' 
 
 Glared that the defendant is interested in the payment of the whole 
 amount by the garnishee, and that, though a settlement of the judg- 
 ment by the garnishee, with tlie garnishment plaintiff, by the gar- 
 nishee purchasing it for about one-third of its face value, is satisfac- 
 tion, as between the plaintiff and the garnishee, yet such defense 
 cannot be set up as payment in defense of a suit by the assignee of 
 the defendant. Brown v. Somerville, 8 Md. 444. 
 
 2 2 Grifhn v. Potter, 27 Mic!h. 166; Somers v. Losey, 48 Mich. 294, 12 
 N. W. 188; Dodd v. Brott, 1 Minn. 270 (Gil. 205), 66 Am. Dec. 541; 
 Mills V. Stewart, 12 Ala. 90; Montgomery Gas Light Co. v. Merrick, 
 61 Ala. 534; Barber v. Howd, 85 Mich. 221, 48 N. W. 539; Warren v. 
 Copelin, 4 Mete. (Mass.) 594, 598. 
 
 Wetter v. Rueker, 1 Brod. & B. 491, 5 E. G. L. 759, and Bumap v. 
 Camp_bell, 6 Gray (Mass.) 241, are sometimes cited to the contrary; 
 but neither of these cases is authority upon the question, for both 
 are controlled by statutory provisions that payment should be made 
 under execution only. 
 
 STATUTE REQUIRING BOND, ETC., BEFORE PAYMENT: The 
 following cases hold that payment of the judgment by the garnishee, 
 voluntarily, before the garnishment plaintiff has complied with the 
 provisions of law entitling him to payment, will not protect the gar- 
 nishee from subsequent liability: Myers v. Urich, 1 Bin. (Pa.) 25; 
 Oldham v. Ledbetter, 2 Miss. 43, 26 Am. Dec. 690; Grissom v. Reyn- 
 olds, 2 Miss. 570. And see McPhail v. Hyatt, 29 Iowa, 137; Yocum 
 V. White, 30 Iowa, 288; Brown v. Ayers, 33 Cal. 525, 91 Am. Dec. 
 655. 
 
 When the statute required a bond to be filed in favor of the de- 
 fendant (in case he is not personally served) before execution could 
 
 2 3 Troyer v. Schweiser, 15 Minn. 241 (Gil. 187). See, also, post, § 
 215, note 44. - 
 
 (2G7) 
 
§ 210 LAW OP GARNISHMENT. [Ch. 10 
 
 III Something Other than Cash. 
 
 § 210. If the plaintiff in garnishment is willing to 
 accept the promissory note of the garnishee as pay- 
 ment, and does so, that satisfies the judgment, and 
 satisfies the garnishee's obligation to the same extent 
 as if made in money,"* although the note be condi- 
 tional.^'* But a credit entered on the private books of 
 the garnishee in favor of the plaintiff, and a debit for 
 the same amount entered in his account with the de- 
 fendant, is not payment, where there is no agreement 
 to that effect.^" Payment of the property into court, 
 pursuant to an order of court in the garnishment suit, 
 while the same is pending, discharges the garnishee's 
 obligation to the same extent as if payment were made 
 under execution." 
 
 issue against the garnisliee, held, that payment by a garnishee with- 
 out such bond being filed will protect him. Stearns v. Wrisley, 30 
 Vt. (501. 
 
 2* Dole V. Bout well, 1 Allen (Mass.) 286. Compare Solomons v. 
 Ross, l.H. Bl. 131, note. 
 
 The fact that garnishee takes a bond of indemnity is immaterial. 
 Hawley v. Atherton, 39 Conn. 309; Palmer v. Woodward, 28 Conn. 
 248. 
 
 When the garnishee paid the judgment by check to the court, who 
 indorsed it to the garnishing creditor, it was held that it will be 
 presumed, in the absence of evidence to the contrary, that the cheek 
 was received as payment, and paid, and it is error to submit the 
 question to the jury. Beatty v. Lehigh Val. Ry. Co., 134 Pa. St. 294, 
 19 Atl. 74.0. 
 
 2 5 Cutler v. Baker, 2 Day (Conn.) 498. 
 
 2 Wetter v. Rucker, 1 Brod. & B. 491, 5 E. C. L. 759. 
 
 27 Barber v. Howd, 8.j Mich. 221, 48 N. W. 539; Ohio & M. Ry. Co. 
 V. Alvey, 43 Ind. 180; Baltimore & O. Ry. Co. v. May, 25 Ohio St. 
 347; Wilson v. Bumey, 8 Neb. 39. Compare Rochereau v. Guidry, 
 24 La. Ann. 294. 
 (268) 
 
Ch. 10] GAENISHMEKT AS A DEFENSE. § 212 
 
 Ho-w Far Garnishment Judgment is Res Judicata.^ 
 
 Ees Judicata against Plaintiff and Garnishee. 
 
 § 211. Although the garnishee is discharged from 
 his obligation to the defendant to the extent of the 
 judgment recovered against him, as already stated, 
 yet such judgment is res judicata only against the 
 plaintiff and the garnishee.^" Judgment against the 
 garnishee, and payment of it, is res judicata against 
 him, so as to preclude him from afterwards recovering 
 it from the defendant, on the ground that he owed 
 nothing, at least when such judgment was by de- 
 fault." 
 
 Not Res Judicata against the Defendant and His Other Cred- 
 itors. 
 
 § 212. The garnishment judgment is not res judi- 
 cata against the defendant, but only a protection to 
 the garnishee, against payment to the defendant, of 
 what he has paid or is liable to pay to the plaintiff in 
 garnishment. Judgment in the garnishment suit, dis- 
 charging the garnishee, on the ground that he is not 
 liable to the defendant in anv amount, does not pre- 
 vent the defendant subsequently suing him, and recov- 
 ering whatever amount he can prove to be due; ^^ and 
 
 2 8 See ante, § 202. 
 
 The judgment against the garnisnee for property in his hands pre- 
 cludes him from afterwards claiming against the plaintiff that the 
 property belonged to the garnishee when the judgment was ren- 
 dered. Baker's Appeal (Pa. Sup.) 3 Atl. 760. 
 
 29 Whiteside v. Tunstall, 17 111. 25?; Segog v. Engle, 43 Minn. 191, 
 45 X. W. 427; Arabs v. Towle, 1 Ind. App. 426, 27 N. E. C25. 
 
 30 Puffer V. Graves, 26 N. H. 258; Ruff v. RufC, 85 Pa. St. 333; Pom- 
 
 (2G9) 
 
§ 23 2 LAW OF GARNISHMENT. [Ch. 10 
 
 a judgment for or against a claimant does not deter- 
 mine whether he has a right of action against the gar- 
 nishee; '^ and judgment against the garnishee in one 
 amount does not prevent the defendant, in his subse- 
 quent action, proving that a larger sum vras due, and 
 recovering the same, less the judgment recovered in 
 the garnishment suit/'; Unless the contrary is made 
 to appear, it virill be presumed that the judgment in 
 garnishment was equal to the whole amount of his 
 debt.^' Judgment discharging the garnishee in one 
 garnishment suit does not prevent another creditor of 
 the same defendant charging him as garnishee in re- 
 spect to the same matter in a subsequent suif* 
 
 eroy v. Rand, McNally & Co. (111.) 41 N. E. 63G. So, by statute. La- 
 port V. Bacon, 48 Vt. 176. 
 
 31 See post, §§ 350, 351. 
 
 When a claimant appears and judgment is rendered in his favor, 
 and he afterwards sues the garnishee for the property or debt, both 
 parties stand in the same position as if no trustee suit had been 
 brought. Carpenter v. McClure, 37 Vt. 127; Hewitt v. Follett, 51 
 Wis. 264, 272, 8 N. W. 177. 
 
 3 2 Groves v. Brown, 11 Mass. 334; Collins v. Jennings, 42 Iowa, 
 447; Brown v. Dudley, 33 N. H. 511; Barton v. Albright, 29 Ind. 
 489; Cameron v. Stollenwerck, 6 Ala. 704: Robeson v. Cai"penter, 7 
 Mart. (N. S.; La.) 30; Baxter v. Vincent, 6 Vt. 614; RufC v. Ruff, 
 85 Pa. St. 333. 
 
 In Tarns v. Bullitt, 35 Pa. St. 308, held, that garnishment Judg- 
 ment recovered for one amount does not prevent the assignee in in- 
 solvency of the defendant proving that a larger amount was due, 
 and recovering the difference. 
 
 The disclosure is evidence against the garnishee, as an admissiofi 
 against interest. Udall v. School District No. 4, 48 Vt. 588. 
 
 3 3 McAllister v. Brooks, 22 Me. 80, 36 Am. Dec. 438. 
 
 Si Spruill V. Trader, 5 Jones (N. C.) 39; Breading v. Seigwoi-th, 29 
 Pa. St. 390; Strauss v. Ayers, 87 Mo. 348. Contra, Smith v. Stratton, 
 56 Vt. 362. 
 (270) 
 
Ch. 10] GARNISHMKNT AS A DKFENSE. § 213 
 
 Essentials of a Judgment to be a Valid Defense. 
 
 Must Show Jurisdiction and Compliance with Statute. 
 
 § 213. The garnishment judgment, in order to be a 
 protection to the garnishee against subsequent lia- 
 bility, must have been rendered by a court having ju- 
 risdiction of the subject-matter and of the parties; ^^ 
 and this can be acquired only upon performance of all 
 the statutory prerequisites, and compliance with all 
 the preliminaries which the statute makes conditions 
 of jurisdiction."" All this must appear of record in 
 
 3 5 Laidlaw v. Morrow, 44 Mich. 547, 7 N. W. 191; Rasmussen v. Mc- 
 Cabe, 46 Wis. COO, 1 N. W. 190; Wells v. American Express Co., 55 
 Wis. 23, 34, 11 N. W. 541; O'Rouike v. Chicago, M. & St. P. Ry. Co., 
 55 Iowa, 332, 7 N. W. 582; Stimpson v. Maiden, 109 Mass. 313; Har- 
 mon V. Blrchard, 8 Blackf. (Ind.) 418; Alabama G. S. Ry. Co. v. 
 Chumbey, 92 Ala. 317, 9 South. 286; Richardson v. Hickman, 22 Ind. 
 244; Terre Haute & I. Ry. Co. v. Baker, 4 Ind. App. 66, 30 N. E. 431; 
 Louisville, N. A. & C. Ry. Co. v. Lake, 5 Ind. App. 450, 31 N. E. 500; 
 Robertson v. Roberts, 1 A. K. Marsh (Ky.) 247; Ford v. Hurd, 4 
 Smedes & M. 683; McPhee v. Gomer (Colo. App.) 41 Pac. 836. 
 
 As to the effect of the garnishee not being subject to such process, 
 see School District No. 4 of Marathon v. Gage, 39 Mich. 484; Skelly v. 
 Westminster School Dist., 103 Cal. 652, 37 Pac. 643. As to the effect 
 of the property being exempt, see ante, § 83. 
 
 In Loring v. Polger, 7 Gray, 505, the garnishee was held not pro- 
 tected by payment of a judgment in foreign attachment, in which 
 service on the principal defendant was obtained by publication, be- 
 cause It appeared, afterwards, that the principal defendant died before 
 the publication. But, when the return of the officer to whom the 
 writ in the principal suit was given for service states that the defend- 
 ant was personally served, payment of the garnishment judgment will 
 protect the garnishee, although the defendant was not actually served, 
 and did not appear. Morrison v. New Bedford Inst, for Sav., 7 Gray 
 (Mass.) 269; Wheeler v. Aldrich, 13 Gray, 51. 
 
 s6 WeUs V. American Express Co., 55 Wis. 23, 34, 11 N. W. 541; 
 Edler v. Hasche, 67 Wis. 653, 31 N. W. 57; State ex rel. Austrian v. 
 Duncan, 37 Neb. 631, 56 N. W. 214; Whitcomb v. Atkins, 40 Neb. 049, 59 
 
 (271) 
 
§ 213 LAW OF GARNISHMENT. [Gh. 10' 
 
 the garnishment proceedings which are set up as a de- 
 fense in the subsequent suit/^ 
 
 N. W. 86; Hebel v. Amazon Ins. Co., 33 Mich. 400; Edwards v. Levin- 
 sohn, 80 Ala. 447, 2 South. 161; Broadhurst v. Morgan (N. H.) 20 Atl. 
 553. Compare Pounds v. Hamner, 57 Ala. 342. 
 
 "The proceeding must have a beginning agreeable to its nature, in 
 order to hold the principal defendant, and the nature of thte proceed- 
 ing requires that the law sli.all be brought to bear directly against 
 the right of the principal defendant in the hands or under the control 
 of the garnishee; and the mode, and the only one, provided for this, 
 is by service of the process on, or submission to service by, some one 
 competent in law to receive service. The law itself must be caused to 
 attach, and it can be effected in no other way. Independent and 
 spontaneous submission by the custodian or debtor of the right be- 
 longing to the principal defendant cannot bind him. The intervention 
 of the law, according to its own substantial appointments, can alone 
 initiate compulsory novation. A garnishee may admit awaj' his own 
 right, over which he has power; but he cannot admit away another's 
 right, over which he has no power. It Is a plain proposition that one 
 against whom there is an existing claim cannot, by his own act alone, 
 
 3 7 Laidlow v. Morrow, 44 Mich. 547, 7 N. W. 191; Milwaukee 
 Bridge & Iron Co. v. Wayne County Circuit .Judge, 73 Mich. 155, 41 
 N. w. 215; Wells v. American Exp. Co., 55 Wis. 23, 35, 11 N. AV. 541; 
 Desha v. Baker, 3 Ark. 509; Edwards c. Levinsohn, 80 Ala. 447, 2 
 South. 161; Gunn v. Howell, 27 Ala. 663, 62 Am. Dec. 712. 
 
 PRESUMPTIONS OF REGULARITY: Justices of the peace not 
 being required to keep a full record of the proceedings had before 
 them, the regularity of such proceedings will be presumed, if the 
 record shows all the statute requires the justice to record. Carper v. 
 Richards, 13 Ohio St. 219. 
 
 AVhen the record shows that the justice acquired jurisdiction, it will 
 be liberally construed. Root v. Davis, 51 Ohio St. 29, 35 N. E. 669. 
 
 When the judgment entry is obscure, it should be construed in the 
 light of the pleadings and whole record. Fowler v. Doyle, 10 Iowa, 
 534. 
 
 When the record of the garnishment proceedings offered in evidence 
 failed to show that the plaintiff therein had recovered judgment 
 against the principal defendant therein, held, that they were properly 
 disi'egarded, because, without this, no judgment could pass against 
 the garnishee. Barton v. Smith, 7 Io^^•a, 85. 
 (272) 
 
Ch. 10] GARNISHMENT AS A DEFENSE. § 214 
 
 Presumptions in Fat or of Jurisdiction and Regularity. 
 
 § 214. This appearing, the defense is perfect, how- 
 ever irregular and bungling the judgment entry may 
 be; ^' and where a judgment of a court of a sister 
 state is relied upon, and it does not appear what were 
 the requisites of jurisdiction in such other state, the 
 court will presume in favor of the jurisdiction of the 
 
 transfer it into an obligation to anotlier. Tlie right itself, and the pow- 
 er to enforce it, must remain in tlie original owner, unless there Is a 
 novation by his consent or by force of legal proceedings; and where 
 the end is sought through the garnishee law, and depends on no as- 
 sent or acquiescence of the principal defendant, the right must be tali- 
 en into legal custody, and subjected by course of law; and, as against 
 the principal defendant, this cannot be accomplished by the ex parte 
 action of the debtor or custodian of the right, even on request of the 
 garnishor, though made in the form of complaint filed, and process 
 sent out. There must be action under process which brings home to 
 the garnishee, and the riglit to be subjected, the power of the law it- 
 self." Hebel v. Amazon Ins. Co., 33 Mich. 400. 
 
 Although the proceedings were properly begun, so that the court 
 acquired jurisdiction, yet, if the plaintiff afterwards allow them to 
 lapse, the garnishee cannot waive the default, appear in answer to 
 summons in continuation of the suit, allow judgment to pass against 
 him thereon, and be protected by such judgment. Johnson v. Dexter, 
 38 Mich. 695. The statute must be strictly followed, to bind the 
 principal defendant. Crisp. v. Ft. Wayne & E. Ey. Co., 98 Mich. G4S, 
 \ 57 N. W. 1050. 
 
 When the statute allows the garnishee to pay the money into court 
 on making his disclosure, he may put such a construction upon his 
 disclosure as will show liability, and pay over the money, and strict 
 formality will not be exacted of him. Barber v. Howd, 85 Mich. 221, 
 48 N. W. 539. 
 
 When the garnishee, a judgment debtor, paid the plaintiff upon the 
 rendering of a conditional judgment, and afterwards it was made ab- 
 solute, and the defendant attempted to collect it again, the court held 
 that the trial court properly ordered the first payment credited upon 
 the judgment. Sandburg v. Papineau, 81 111. 446. 
 
 3 8 Rasmussen v., McCabe, 43 Wis. 471; Bushnell v. Allen, 48 Wis. 
 460, 4 N. W. 599. 
 
 LAW GAKNISH. 18 (273) 
 
§ 214 LAW OF GARNISHMENT. [Oh. 10 
 
 court that rendered the judgment; '*' and if it appears 
 that the court had jurisdiction, it will be presumed 
 that all the proper steps were taken to charge the gar- 
 nishee.*" If the garnishee contested the jurisdiction 
 of the court, and his objection was overruled, the 
 judgment rendered against him will conclude the ques 
 tion, and cannot be collaterally attacked elsewhere, on 
 the ground that the court had no jurisdiction.*^ 
 
 S9 Mills V. Stewart, 12 Ala. 90. And see Hull v. Blake, 13 Mass. 153; 
 Carper v. Ricliards, 13 Ohio St. 219. 
 
 ■to Morgan v. Neville, 74 Pa. St. 52; Leonard v. New Bedford Fiye 
 Cents Sav. Bank, 116 Mass. 210; Holmes v. Remsen, 4 .Tohns. Ch. 
 (N. Y.) 467, 8 Am. Dec. 581. 
 
 41 Wyatt's Adm'r v. Rambo, 29 Ala. 510; Gunn v. Howell, 35 Ala. 
 144; Connor v. Hanover Ins. Co., 28 Fed. 549; Chicago, B. & Q. Ry. 
 Co. V. Moore, 31 Neb. 629, 48 N. W. 475. 
 
 Beyond all doubt the text states a principle which should be fol- 
 lowed at all times, yet it does not appear to have been so followed. 
 Illinois Cent. Ry. Co. v. Smith, 70 Miss. 344, 12 South. 461; Missouri 
 Pac. Ry. Co. v. Sharitt, 43 Kan. 375, 23 Pac. 430; Douglass v. Phenix 
 Ins. Co., 138 N. Y. 209, 33 N. B. 938; McCarty v. Steam-Propeller City 
 of New Bedford, 4 Fed. 831; American Cent. Ins. Co. v. Hettler, 37 
 Neb. 849, 56 N. W. 711. 
 
 "The question whether or not a certain statutory provision does 
 have the effect of giving the right of garnishment, and whether that 
 statutory regulation has been followed in a particular proceeding. Is a 
 matter entirely for the construction of the courts of the jurisdiction. 
 Their decision upon the subject is final, and we cannot go behind it." 
 National Fire Ins. Co. v. Chambers (N. J. Ch.) 32 Atl. 663. 
 
 When the defendant appears specially, in the main action, for the 
 purpose of objecting to the jurisdiction of the court, and the court 
 rules against him, and he does not appeal, the garnishee will be pro- 
 tected by a payment into court according to its order. Axman v. 
 Deuker, 45 Kan. 179, 745, 25 Pac. 582, and 26 Pac. 946. 
 (274) 
 
■Ch. 10] GARNISHMENT AS A DEFENSE. § 215 
 
 Erroneous or Default Judgment is Protective, though Reversed 
 after Payment. 
 
 § 215. If the court had jurisdiction to render it, the 
 judgment of a justice of the peace is as protective as 
 that of the supreme court, and the garnishee is under 
 no obligation to seek to reverse the judgment by ap- 
 peal; *'' and, although erroneous, so that it might be 
 reversed by appeal, yet, if this is not done, it is a judg- 
 ment, and entitled to the same respect as if perfectly 
 regular, and the garnishee will be protected to the 
 same extent by payment under it,*' and reversal of it 
 by tJie defendant after payment bv the garnishee will 
 not render him again liable. His payment is still com- 
 plete protection.** A judgment by default against the 
 
 <2 Hull V. Blake. 13 Mass. 153; Spafford v. Page, 15 Vt. 494. 
 
 <3 Bigalow V. Ban-e, 30 Mich. 1; Rasmussen v. McCabe, 43 Wis. 
 471; Telles v. Lynde, 47 Fed. 912; Webster v. City of Lowell, 2 Allen 
 (Mass.) 123; Carper v. Ricliards, 13 Ohio St. 219; GUdersleeve v. 
 Caraway, 19 Ala. 246; Tubb v. Madding, Minor (Ala.) 129; Burton v. 
 Disti'ict Tp. of Warren, 11 Iowa, 166; Atcheson v. Smith, 3 B. Men. 
 (Ky.) 502; Rector v. Drury, 4 Ctiand. (Wis.) 24; Moore v. Chicago, R. 
 I. & P. Ry. Co., 43 Iowa, 385; Axman v. Deuker, 45 Kan. 179, 745, 
 25 Pac. 582, and 26 Pac. 946; Cornwall v. Hungate, 1 Ind. 156; Loni- 
 erson v. Hoffman, 24 N. J. Law, 674; Dole v. Boutwell, 1 Allen (Mass.) 
 286. 
 
 In Stille V. Layton, 2 Har. (Del.) 149, the garnishee is held protected 
 by judgment rendered against him on reference, and not tried 
 according to the appointments of law, there being no evidence of 
 collusion. 
 
 But there must be a judgment rendered, or some other proceeding, 
 recognized by the statute as creating a novation; and, if the gar- 
 nishee volunteers to pay without, he does so at his peril, and the 
 payment will give him no protection. Hitchcock v. Miller, 48 Mich. 
 603, 12 N. W. 871; Union Bank v. Hanash, 97 Mich. 404, 56 N. W. 
 768; Emery v. Royal, 117 Ind. 299, 20 N. E. 150. 
 
 44 Duncan v. Ware, 5 Stew. & P. (Ala.) 119. And see Telles v. 
 Lynde, 47 Fed. 912. 
 
 When the judgment in the principal suit is reversed after the gar- 
 
 (275) 
 
§ 216 LAW OP GARNISHMENT. [Gh. 10 
 
 jrarnishee is as valid a protection as one awarded after 
 vifiorous contest/^ 
 
 Judgment against Part of Sundry Obligors. 
 
 § 216. It has been held, in Michigjan, that if one 
 of the sundry obligors is summoned as sole garnishee 
 in a suit against the obligee, admits sole liability, and 
 pays the judgment thereupon rendered against him, 
 such payment will be no defense to an action subse- 
 quently brought against all the obligors jointly by the 
 obligee; ** and the contrary has been held in Ala- 
 bama.*' But if, of several persons liable on an obli- 
 gation, one is principal, and all the others are sureties, 
 merely, a judgment against the principal, as sole gar- 
 nishee has paid the judgment against himself, the same rule holds. 
 Troyer v. Sehwelzer, 15 Minn. 241 (Gil. 187) ; Richardson v. Hickman, 
 22 Ind. 2-44; AUen v. Seaver, 38 Vt. G73. 
 
 In such cases the court may, upon the new trial of the main action, 
 in case the defendant is successful, give a judgment in his favor 
 against the plaintiff for the amount collected of the garnishee. Allen 
 V. Seaver, 38 Vt. 673. 
 
 After a reversal of judgment against the defendant, the garnishee 
 cannot recover of the plaintiff the amount of the garnishment judg- 
 ment previously paid. The defendant's remedy is against the plain- 
 tiff. Elliot V. Sneed, 1 Scam. (111.) 517. 
 
 45 Deno V. Thomas, G4 Vt. 358, 24 Atl. 140; Randall v. Way, 111 
 Mass. 506; Gildersleeve v. Caraway, 19 Ala. 24G; Hebel v. Amazon 
 Ins. Co., 33 Mich. 400. And see Fasquelle v. Kennedy, 55 Mich. 305, 
 21 N. W. 347; Debs v. Dalton, 7 Ind. App. 84, 34 N. E. 236. But, 
 as to exempt property, see ante, §§ 83, 104-107. 
 
 4 6 Wetherwax v. Paine, 2 Mich. 555; Hirth v. Pfeifle, 42 Mich. 31, 
 3 N. AV. 239. 
 
 47 Cook v. Field, 3 Ala. 53, 30 Am. Dec. 436. Compare, also, 
 Hutchinson v. Eddy, 29 Me. 91; Sangster v. Butt, 17 Ind. 3.34. 
 
 In Buslmell v. Allen, 48 Wis. 400, 4 N. W. 599, the garnishment 
 suit was nominally against all the obligees jointly, but summons 
 was served on only one, and judgment thereon was held complete 
 defense. 
 (276) 
 
Ch. 10] GARNISHMENT AS A DEFENSE. § 218 
 
 nishee. will discharge the obligation, and protect all 
 parties from further liability.*' 
 
 Bad Faith in Garnishee. 
 
 § 217. The garnishee must act fairly and impar- 
 tially between the parties. A judgment obtained by 
 the connivance and collusion of the garnishee with the 
 plaintiff in garnishment, and in fraud of the rights of 
 any one, will be no protection to the garnishee against 
 the subsequent suit of such person.*" But, if the pro- 
 ceedings are regular, and the garnishee merely aids 
 the plaintiff in getting his claim, this is no fraud up- 
 on the defendant, ^^ unless the property is exempt, and 
 the garnishee coUusively conceals the proceedings 
 from the defendant, and does not claim the exemp- 
 tion.*^ Of course, fraud will not be presumed." 
 
 How the Defense should be Pleaded and Proved. 
 
 Whether Admissible in Evidence under General Issue. 
 
 § 218. Mr. Chitty, in his valuable work on Plead- 
 ing, in considering the law, before the Hilary rules, 
 
 *s Jones V. St. Onge, 67 Wis. 520, 30 N. W. 927; Noble v. Thompson 
 Oil Co., G9 Pa. St. 409; Bostwick v. Bryant, 113 Ind. 448, 16 N. E. 
 378. 
 
 48 Cogswell v! Mitts, 90 Mich. 353, 51 N. W. 514; Smith v. Dick- 
 son, 58 Iowa, 444, 10 N. W. 850; Coates v. Roberts, 4 Rawle (Pa.) 
 100; Black v. Brisbin, 3 Minn. 360 (Gil. 253), 74 Am. Dec. 762; Seward 
 V. Heflin, 20 Vt. 144; Noble v. Thompson Oil Co., 79 Pa. St. 354, 21 
 Am. Rep. 60; Stille v. Layton, 2 Har. (Del.) 149; Work v. Brown, 38 
 Neb. 498, 56 N. W. 1082. 
 
 50 Barber v. Walker, 26 Wis. 44. 
 
 51 Smith V. Dickson, 58 Iowa, 444, 10 N. W. 850; Mace y. Heath, 
 34 Neb. 790, 52 N. W. 822. 
 
 6 2 Andrews v. Herring, 5 Mass. 210. 
 
 (277) 
 
§ 218 LAW OF GARNISHMENT. [Ch. 10 
 
 la.ys down the rule that, "under the general issue [non 
 assumpsitl, any matter which showed that the plain- 
 tiff never had cause of action mifi;ht be given in evi- 
 dence, and also that, under that plea, most matters, 
 even in discharge of the action, and which showed 
 that, at the time of commencement of the suit, the 
 plaintiff had no subsisting cause of action, might be 
 taken advantage of." " As a corollary to this propo- 
 sition, the same learned writer declares that, under 
 this plea, a former recovery by garnishment may be 
 given in evidence, and relied upon as a defense.'^* 
 But, in Michigan, it is held that the defense cannot be 
 given in evidence under the general issue without no- 
 tice, but must be pleaded specially, or notice of the 
 defense intended to be relied on given under the statu- 
 tory general issue. ^° 
 
 B3 1 Chit. PI. 478. 
 
 6* Id. Citing: Brools v. Smitli, 1 Salk. 280, 291; Turbill's Case, 1 
 Saund. 07a, note; McDaniel v. Hughes, 3 East, 367, 378, 2 Ves. Jr. 
 100; Nathan v. Giles, 5 Taunt. 558, 1 E. C. L. 286; Morris v. Lud- 
 1am, 2 H. Bl. 362; Com. Dig. "Attachment," A, and "Pleader,"' 2, G 
 5. To the same effect, see, also. Cook v. Field, 3 Ala. 53, 36 Am. Dec. 
 436; Minard v. Lawler, 26 111. 301. 
 
 5 5 Tabor V. Van Vranken, 39 Mich. 793; Somers v. Losey, 48 Mich. 
 294, 12 N. W. 188; Walters v. Washington Ins. Co., 1 Iowa, 404. 
 
 When, after the entry of judgment, the defendant was summoned 
 and charged as garnishee of the plaintiff, and paid the garnishment 
 judgment, and then appealed from the judgment first recovered 
 against him, and in the circuit court sought to rely upon the pay- 
 ment as a defense, without pleading it, the court held that he could 
 do so, saying that the plaintiff knew of the garnishment, and must 
 have known that the defendant would insist upon it as a defense 
 Minard v. Lawler, 26 111. 301. 
 
 In White v. Kent Circuit Judge, 47 Mich. 645. a plea of judgment 
 In garnishment puis darrein continuance was held good, where a 
 former plea, alleging that defendant had been garnished, had been 
 (278) 
 
Ch. 10] GARNISHMENT AS A DEFENSE. § 220 
 
 What is Sufficient Special Plea or Notice. 
 
 § 219. A special plea or notice will be insufficient, 
 and of no avail, unless it identifies the demand sued on 
 as the same demand upon which the defendant has 
 been previously charged as garnishee. It must dis- 
 tinctlv allege the fact.^" But it is not necessary to 
 aver that the defendant did not have notice of the 
 plaintiff's claims before he was charged as garnishee. 
 If such is the fact, it is matter for the plaintiff to 
 prove." It is said that, if the defense is not properly 
 pleaded, the party is remediless, both in law and eq- 
 uity, and must pay his debt a second time.'^' 
 
 What must be Proced, and Hoio. 
 
 § 220. One seeking protection under a previous gar- 
 nishment must prove the proceedings and their valid- 
 withdrawn by leave of the court; and the plea of payment on a judg- 
 ment in the same proceeding in garnishment having been made in lieii 
 of it, and stricken from the files by order of the circuit Judge, the su- 
 preme court, by manadamus, compelled it to be restored. 
 
 As to how detailed a stPtement of the garnishment proceedings 
 must be set up in the pleadings, see Skelly v. Westminster School 
 Dist., 103 Gal. 652, 37 Pac. 643. 
 
 S6 Harmon v. Birchard, 8 Blackf. (Ind.) 418; Cornwell v. Hungate, 
 1 Ind. 15C; Sangster v. Butt, 17 Ind. 354. Compare Humphrey v. 
 Barns, Cro. Eliz. 691. 
 
 •Tudgment and payment under garnishment held sufficiently plead- 
 ed. Skelly V. Westminster School Dist., 103 Cal. 652, 37 Pac. 643. 
 
 07 Mills V. Stewart, 12 Ala. 90. 
 
 An answer by a debtor, in a suit by the assignee of the creditor, 
 setting up payment, as garnishee, in an action against the creditor, 
 find that the debtoi' did not know of the assignment at the Ume the 
 garnishment was served, is not sufficient. It must show that he had 
 no notice of the assignment or the assignee's claim at the time of 
 making answer. Town of Woodlawn v. Purvis (Ala.) 18 South. 530. 
 
 8 Drake, Attachm. § 722, citing TurblU's Case, 1 Saund. 67, note ] ; 
 Coates v. Roberts, 4 Ilawle (Pa.) 100. 
 
 (279) 
 
§ 220 LAW OF GARNISHMENT. [Ch. 10 
 
 ity,^' except so far as the same will be presumed,"" 
 and must identify the demand sued on as the same one 
 upon which he has been previously charged as gar- 
 nishee."^ Of course, the proper evidence to prove the 
 judgment is the record itself,"^ or a duly-certihed tran 
 script of the record '^^ and of all other papers necesaarj 
 
 58 Wells V. American Express Co., 55 AVis. 23, ^i, 11 N. W. 537; 
 Edler v. Hasclie, 67 Wis. ijj3, 31 N. W. 57; Barton v. Smith, 7 Iowa, 
 84. 
 
 Holding that the court will presume omnia rite acta in favor of a 
 foreign judgment, see Holmes v. Kemseu, 4 Johns. Ch. (N. Y.) 467, 
 8 Am. Dec. 581. 
 
 «" As to how far presumed, see ante, § 214. 
 
 »i Wetherwax v. Paine, 2 Mich. 555, 560; Dirlam v. Wenger, 14 
 Mo. 548; Harmon v. Birchard, 8 Blackf. (lud.) 418; Cornwell v. 
 Hungate, 1 Ind. 156; Sangster v. Butt, 17 Ind. 354. 
 
 Considering this fact, the reader will note the vital impoi'tance of 
 answering the garnishment summons rather than letting judgment 
 go by default for want of answer, and the prudence of stating in the 
 answer every fact tending to show the nature of the garnishee's lia- 
 bility, and identifying it. In view of future litigation. One of two 
 joint makers of a note was summoned as garnishee of the payee, 
 and suffered judgment to go against him by default. Afterwards 
 both makers were sued jointly on the note by the payee, and set up 
 the payment of tlie garnishment as a defense; but, failing to show, 
 on the trial, that he was charged as garnishee in respect to the note 
 sued on, it was held that the fact could not be presumed, and they 
 were still liable to the payee for the full amount of the note. 
 Hutchinson v. Eddy, 29 Me. 91. Sangster v. Butt, 17 Ind. 354, was 
 a very similar case, and was decided the same way, only the ques- 
 tion arose on demurrer. 
 
 But parol evidence is admissible to prove the identity of the de- 
 mands. Cook V. Field, 3 Ala. 53, 36 Am. Dec. 436; Bostwick v. 
 Bryant, 118 Ind. 448, 16 N. E. 378. If this were not so, a judgment 
 by default would never afford the garnishee any protection. 
 2 Kasmussen v. McCabe. 43 Wis. 471. 
 63 Rector v. Drury, 4 Chand. (Wis.) 24. 
 (280) 
 
■Ch. 10]: GARNISHMENT AS A DEFENSE. § 220 
 
 to show that the court had jurisdiction;"* for this 
 must be proved. But, if jurisdiction, prima facie, ap- 
 pears from the record itself, nothing further need be 
 produced."" If the records have been lost or de- 
 stroyed, that fact should be shown, and the jurisdic- 
 tion proved by parol."" It has been held, in Massa- 
 chusetts, that a prima facie case is made by the exe- 
 cution on which the judgment was paid, and which 
 contained recitals of the necessary facts." 
 
 «* Wells V. American Express Co., 55 Wis. 23, 35, 11 N. W. 541. 
 «= Rector v. Drury, 4 Chand. (Wis.) 24. 
 
 o« Wells V. American Express Co., 55 Wis. 23, 35, 12 N. W. 441. 
 «T Leonard v. New Bedford Five Gents Sav. Bank, 116 Mass. 210. 
 
 (281) 
 
221 LAW OK GARNISHMENT. [Ch. 11 
 
 CHAPTER XI. 
 
 JURISDICTION. 
 
 221. In General— Definition and Essentials. 
 
 222. Outline. 
 
 223. Inherent Authority of the Court. 
 
 224. Jurisdiction of the Principal Suit— Essential to Support Gar- 
 
 nishment Proceedings. 
 
 225. Garnishee may Question. 
 
 226. Cannot Object to Errors not Affecting Jurisdiction. 
 
 227. Conclusive Presumption of Absolute Verity of the Record. 
 
 228. Recitals of Record not Conclusive. 
 
 229. Whether Record is Conclusive against Garnishee. 
 
 230. Effect of General Appearance by Defendant — Before Garnish- 
 
 ment is Instituted. 
 
 231. After Garnishment is Instituted. 
 
 232. Appearance in Garnishment Suit. 
 
 283. Jurisdiction Acquired by Substituted Service. 
 
 234. Jurisdiction of the Garnishment Suit. 
 
 235. Dependent upon Amount Involved. 
 
 236. Dependent upon Jurisdiction over the Main Action. 
 
 237. Dependent upon Garnishee's Residence. 
 
 238. Dependent upon Compliance with Statutory Require- 
 ments. 
 
 239. Jurisdiction of the Property Sought to be Garnished— R6sum6. 
 
 240. Corporeal Property beyond Territorial Limits of Jurisdic- 
 tion. 
 
 241. No Court can Proceed in Rem without a Res within the 
 
 Jurisdiction. 
 
 242. How Far Residence of Owner Affects Situs of Debts. 
 
 243. Injustice Caused by Conflicting Decisions on This Ques- 
 tion. 
 
 244. Other Rules to Determine Situs of Debts. 
 
 245. The True Criterion to Determine Situs In Garnishment. 
 
 246. -— Not Necessarily the Same as Determines Rights of Par- 
 
 ties. 
 (282) 
 
Ch. 11] JURISDICTION. § 222 
 
 In Qeueral. 
 
 Definition and Essentials. 
 
 § 221. Jurisdiction is the authority to hear and de- 
 termine the cause, and refers to the power of the court 
 over the parties, the res or property in contest, and 
 the authority of the court to entertain the suit or pro- 
 ceeding and render the judgment or decree which it 
 assumes to make. In garnishment proceedings, all 
 the statutory prerequisites to commencement of suit 
 are jurisdictional, and must be strictly complied with. 
 Every direction of the statute before jurisdiction ac- 
 quired must be followed, every requirement per- 
 formed, and for every step taken, up to this time, at 
 least, authority must be found in the statute under 
 which the proceedings are conducted, or the whole 
 matter will be coram non judice, and void.^ The pro- 
 ceeding is ancillary to the principal suit, and purely 
 statutory and special, and there is no authority for 
 any action, or prohibition of action, except what is 
 found in the statute. 
 
 Outline. 
 
 § 222. With these principles in mind, the reader 
 will note that the answer to the question, has the court 
 jurisdiction? naturally divides itseli into a considera- 
 tion of: (1) The inherent power of the court to enter- 
 tain proceedings of this nature, or the particular suit ; 
 (2) the proper institution of the suit against the prin- 
 cipal defendant, and the conduct thereof; (3) the com- 
 mencement of the garnishment suit, and obtaining ju- 
 risdiction of the garnishee; (4) jurisdiction over the 
 
 1 See ante, §§ 6, 213. 
 
 (2S3) 
 
§ 224 LAW OK GARNISHMENT. [.Cll. 11 
 
 property sonsM to be reached by the gamishment. 
 To the consideration of these, in their order, let us now 
 turn our attention. 
 
 Inherent Authority of the Court. 
 
 § 223. Garnishment is an innovation on the com- 
 mon law," and therefore no common-law court could 
 entertain such proceedings upon its common-law au- 
 thority. It logically follows that, although the stat- 
 ute may perfectly provide for this remedy, and the 
 manner of conducting it, yet no court not especially 
 empowered by the statute to do so can entertain pro- 
 ceedings under it.' 
 
 Jurisdiction of the Principal Suit. 
 
 Essential to Support Garnishment Proceedings. 
 
 § 224. Garnishment proceedings, being purely an- 
 cillary to the suit against the principal defendant, de- 
 
 2 Ante, § 6. 
 
 - Lewis V, Sercomb, 1 AVis. 394. See. also. Dew v. Bank of Ala- 
 bama, 9 Ala. 323. Compare ante, § 10. 
 
 In Harmon v. Birchard, 8 Blackf. (Ind.) 418, the instice of the 
 peace assuming to act was by law prohibited from trying cases of 
 the nature of the action against the principal defendant. 
 
 Garnishment is a statutory proceeding, and can be issued only in 
 the cases and by the officers authorized by statute. Donald v. Nel- 
 son, 95 Ala. Ill, 10 South. 317. A similar question is discussed in 
 Mayor, etc., of .Jersey City v. Horton, 38 N. J. Law, 88. 
 
 It is quite true that the United States courts do not entertain juris- 
 diction of garnishment proceedings by virtue of any clause in the 
 state statutes under which they proceed, but— what is equivalent to 
 it— are empowered by U. S. Rev. St. §§ 915, 910, to proceed under 
 such state laws, thus, in effect, making them, for the purpose, United 
 States statutes. Canal & Claiborne St. Ry. Co. v. Hart, 114 U. S. 654, 
 5 Sup. Ct. 1127. 
 (284) 
 
Ch. 11] JURISDICTION. § 224 
 
 pend upon it for their existence and validity. If, for 
 any reason, the court fails to f^et jurisdiction of the 
 principal suit, the garnishment must inevitably fall 
 with it. This principle is universal. It is all the 
 same whether the lapsing came ffom failure to get 
 personal service of the summons in the principal suit, 
 upon the defendant therein, in the time and manner 
 prescribed by law,* or from failure to comply with the 
 statute directing the mode of obtaining substituted 
 service thereof, bj publication or otherwise." The 
 issuing of the original writ, or, if the statute requires 
 
 4 Axtell V. Gibbs, 52 Mich. 040, 18 N. W. 396; Lackett v. Ruiii- 
 baugh, 45 Fed. 23, 30, 
 
 Where the first summons against the principal defendant, and upon 
 which the garnishment summons was issued, is returned "Not served." 
 because the officer was unable to find the principal defendant, and 
 the plaintiff seeks to preserve his lien on the property or funds in 
 the hands of the garnishee by issuing alias and pluries summons in 
 continuance of his suit, the court in which the proceedings are con- 
 ducted may discharge the garnishee, with costs, if it appears that 
 unreasonable delay is made in bringing in the defendant. Noble v. 
 Bourke, 44 Mich. 193, 6 N. W. 237, 
 
 When a writ is returned unexecuted, and It is sought to keep the- 
 proceedings alive by issuing alias and pluries writs, the record must 
 show the facts of issue and return. Lackett v. Rumbaugh, 45 Fed. 
 23, 50. 
 
 s Laidlaw v. Morrow, 44 Mich, 547, 7 N. W. 191; Kraft v. Eaths, 45 
 Mich. 20, 7 N. W. 232; Iron Cliffs Co. v. Lahais, 52 Mich. 394, 397, 18 N. 
 W. 121; Isabella v. Iron Cliffs Co., 57 Mich. 120, 23 N. W. 613; 
 Streissguth v. Reigelman, 75 Wis. 212, 43 N, W. 1116; Frisk v. Relgel- 
 man, 75 Wis. 499, 505. 43 N, W, 1117: Bejupre v. Brigham, 79 Wis. 
 436, 48 N. W. 596; Washburn v. New York & Vermont Mining Co,, 
 41 Vt. 50; Railroad Co, v. Todd, 11 Heisk. (Tenn.) 549; Paul v. Bird, 
 25 N. J, Law, 559, 
 
 That the statute has been complied with must appear from the 
 return of the officer serving the summons. Laidlaw v. Morrow, 
 above. Compare, also, Milwaukee Bridge & Iron ^^^orks v. Wayne 
 Circuit Judge, 73 Mich. 155, 41 N, W. 215; Healey v, Butler, 66 Wis, 
 9, 27 N. W. 822. But, held, in Wisconsin, that the fact may be 
 
 (285) 
 
§ 225 LAW OF GARNISHMENT. [Ch. 11 
 
 no orie;inal writ, then, the filing of the declaration, 
 constitutes the commencement of an action, in such 
 a sense as to authorize garnishment ; and it is not nec- 
 essary that the papers shall have been placed in the 
 hands of an officer for service before the garnishment 
 is instituted/ 
 
 Garnishee may Question. 
 
 § 225. The garnishee may raise and rely upon the 
 objection at any stage of the proceedings. He does 
 not waive it by answering ana going to trial.' If judg- 
 
 proved, and the return or proof filed, even in the appellate court. 
 Frisk V. Reigelman, above. 
 
 "The plaintifE must have a judgment against the principal defend- 
 ant, or have commenced a suit against such principal defendant, upon 
 contract, expressed or implied, or upon judgment, before he can have 
 process against the garnishee. How. Ann. St. § 8031. And before 
 judgment can be rendered against the garnishee he must have obtain- 
 ed judgment against the principal defendant. Id. § 8037. And after 
 judgment has been obtained against the principal defendant, the gar- 
 nishee is still entitled to his day in court, to show cause, If he can, 
 why judgment should not be rendered against him; and if he does 
 not volimtarily appear and permit judgment to be talcen against him, 
 he must be brought in by summons from the justice." Iron Cliffs Co. 
 V. Lahals, supra. 
 
 "There are two things necessary to give a court jurisdiction of pro- 
 ceedings in garnishment, under our statute: One, that the principal 
 action is 'founded upon contract, express or implied, or upon a judg- 
 ment or decree'; the other, that an affidavit has been made and filed, 
 setting forth the indebtedness, etc., of the party to be garnished. No 
 summons can be properly issued without these prerequisites." Black 
 V. Brisbin, 3 Minn. 360 (Gil. 253, 256), 74 Am. Dec. 762. 
 
 Though jurisdiction of the suit against the principal defendant may 
 be acquired by attachment of his property, under the statutes so 
 providing, yet, where the only property attached is the debt of the 
 garnishee, it must be made to appear that there is a debt attached, 
 before judgment can be rendered. Byers v. Baker (Ala.) 16 South. 72. 
 
 6 McDonald v. Alanson Manuf 'g Co. (Mich.) 64 N. W. 730. 
 
 T Thayer v. Tyler, 10 Gray, 164; Pratt v. Cunliff, 9 Allen, 90; Wood- 
 (286) 
 
Cll. 11] JURISDICTION. § 226 
 
 ment has been rendered against the defendant, but is 
 absolutely void, of course, it cannot support the gar- 
 nishment proceedings, and the garnishee should move 
 the court that he be discharged on that ground.* So, 
 too, if the execution on which the garnishment de- 
 pended vsras void." 
 
 Cannot Object to Errors not Affecting Jurisdiction. 
 
 § 226. On the other hand, if the court has jurisdic- 
 tion of the principal suit, the garnishee can inquire no 
 further; for no errors or irregularities therein, not 
 jurisdictional, will in any manner impair the protect- 
 ive force of the garnishment judgment, and beyond 
 tills the garnishee has no interest.^" Even though the 
 
 folk V. Whitworth, 5 Cold. (Tenn.) 561; Erwin v. Heath, 50 Miss. 795; 
 Melloy V. Burtis, 124 Pa. St. 161, 16 Atl. 74T; Pierce v. Carleton, 12 
 111. 358, 54 Am. Dec. 405; Dennison v. Taylor, 142 111. 45, 31 N. E. 
 148; Segar v. Muskegon Shingle & Lumber Co., 81 Mich. 344, 45 N. 
 W. 982; McGuire v. Pitts' Sons, 42 Iowa, 535; Merchants & Manu- 
 facturers' Nat. Bank v. Haiman, 80 Ga. 624, 5 S. E. 795; Everett v. 
 Connecticut Mut. Life Ins. Co., 4 Colo. App. 509, 36 Pac. 616. 
 
 The defect is not cured by a judgment by default entered against 
 the garnishee. Debs v. Dalton, 7 Ind. App. 84, 34 N. E. 236. 
 
 MOTION TO STRIKE: "It has been held that, under the general 
 plea of nulla bona, the garnishee may, on trial of the issue, take ad- 
 vantage of the invalidity of the judgment on which the scire facias 
 Issued. Pancake v. Harris, 10 Serg. & R. 109; Thornton v. Bonham, 
 2 Pa. St. 102. If he can do that, there is no good reason why he 
 may not apply to the court, in behalf of the nonresident defendant, 
 and have an improvidently granted judgment stricken off, as was 
 done in this case." Melloy v. Burtis, above. 
 
 8 Beaupre v. Brigham, 79 Wis. 436, 48 N. W. 596; Smith v. Mc- 
 Cutchen, 38 Mo. 415; Smith v. Montoya, 3 N. M. 39, 1 Pac. 175; 
 Webb V. Lea, 6 Yerg. (Tenn.) 473; Louisville, N. A. & C. Ey. Co. v. 
 Lake, 5 Ind. App. 450, 32 N. E. 590; Dew v. Bank of Alabama, 9 
 Ala. 323; MePhee v. Gomer (Colo. App.) 41 Pac. 836; Featherston v. 
 Compton, 8 La. Ann. 285. 
 
 Kentzler v. Chicago, M. & St. P. Ry. Co., 47 Wis. 641, 3 N. W. 369. 
 
 10 Pierce v. Carleton, 12 111. 358, 54 Am. Dec. 405; Mead v. Doe, 18 
 
 (287) 
 
§ 226 LAW OF GARNISHMENT. [Ch. 11 
 
 principal defendant take advantajje of such errors, and 
 have the judiajment reversed or set aside after the gar- 
 nishee has paid the judgment against him, the pay- 
 ment still protects the garnishee.^^ But, if the judg- 
 ment in the principal suit is reversed before payments 
 the garnishment falls." 
 
 Wis. 31; White v. Simpson (Ala.) 18 Soutli. 151; Houston v. Walcott, 
 1 Iowa, 86; Henny Buggy Co. v. Patt, 73 Iowa, 485, 35 N. W. 587; 
 Storm V. Adams, 56 Wis. 138, 14 N. W. (59; Exchange Bank of 
 Macon v. Freeman, 89 Ga. 71, 15 S. E. 693; Ohio & M. Ry. Co. v.' Al- 
 vey, 43 Ind. 180; Illinois Cent. Ry. Co. v. Brooks, 90 Tenn. 161, 16' 
 S. W. 77; Atcheson v. Smith, 3 B. Mon. (Ky.) 502; Empire Car 
 Roofing Co. V. Macey, 115 111. 390, 3 N. E. 417; Dennison v. Taylor, 
 142 111. 45, 31 N. E. 148; Lomerson v. Hoffman, 24 N. J. Law, 674 r 
 St. Louis Perpetual Ins. Co. v. Cohen, 9 Mo. 417, 421; White v. Casey, 
 25 Tex. 552; Wililams-v. Gallick, 11 Or. 337, 3 Pac. 469. 
 
 So held, as to execution on which garnishment issued, being irregu- 
 lar. Drake v. Harrison, 69 Wis. 99, 113, 33 N. W. 81. 
 
 LOSS OF JURISDICTION ONCE ACQUIRED: The language of 
 the supreme court of Michigan would seem to indicate that they con- 
 sider the following of the statutory i-egulations respecting the conduct 
 of cases commenced by publication or substituted service to be all 
 jurisdictional, whether they relate to the acquiring of jurisdiction or 
 subsequent conduct of the cause, and that, though the court may 
 have acquired jurisdiction by proper proceedings, it would lose it 
 by subsequent unauthorized acts, and that these acts would not be 
 mere error. Segar v. Muskegon Shingle & Lumber Co., 81 Mich. 344, 
 347, 45 N. W. 982. Compare Heritage v. Armstrong, 101 Mich. 85, 59 
 N. W. 439. But see Rector v. Drury, 4 Chand. (Wis.) 24. 
 
 UNAUTHORIZED DEFENSE FOR GARNISHEE: When the 
 statute permits, the garnishee to appear in and defend the principal 
 action, the same as the defendant might, it is optional with him 
 whether he will so appear; and he may have an appearance and plea 
 stricken out which are entered without his authority, for the defend- 
 ant may appear and plead in his own beluilf. regardless of any de- 
 fense made by the garnishee. Albert v. Albert, 78 Md. 338, 28 Atl. 
 388. 
 
 iiTroyer v. Schweizer, 15 Minn. 241 (Gil., 187); Jlontgomery Gas 
 Light Co. v. Merrick, 61 Ala, .584. See. also, ante, § 215, note 44. 
 12 Clough V. Buck, 6 Neb. 343; Railroad Co. v. Todd, 11 Heisk. 
 . (288) 
 
Ch. 11] juuisDicTioN. § 228 
 
 Conclusive Presumption of Absolute Verity of the Record. 
 
 § 227. The majority of the decisions of the courts of 
 the various states support the proposition that a judg- 
 ment cannot be attacked collaterally, on the ground 
 that the facts necessary to confer jurisdiction did not 
 exist, where the record of the judgment recites or de- 
 clares the existence of these facts; in other words, 
 that the record cannot be contradicted. This rule has 
 only been applied to domestic judgments. When a 
 judgment of a court of another state is relied upon, 
 either as cause of action or ground of defense, it has 
 always been allowed the other party to show that the 
 court rendering it had no jurisdiction. But the rea- 
 sons advanced in support of this conclusive presump- 
 tion of absolute veritv in the record of a domestic judg- 
 ment (public policy and sanctity of the records) apply 
 equally to the judgments of courts of other states. 
 
 Recitals of Record not Conclusive. 
 
 § 228. There is a very respectable array of authori- 
 ties holding that there is no distinction, and that the 
 record may be proved false in all cases." These cases 
 declare that to say the defendant should raise the 
 point in the direct proceeding is mockery; for, in most 
 cases, where judgments are collaterally attacked for 
 want of jurisdiction, the defendant not being duly 
 served, he did not know of the judgment till it was too 
 late to appeal or otherwise defend therein ; and to say 
 that the judgment is a record because the court had 
 jurisdiction, and the court had jurisdiction because 
 the record says so, is to reason in a vicious circle. 
 
 (Tenn.) 549; Rowlett v. Lane, 43 Tex. 274. See, also, Montgomery 
 Gas Light Co. v. Merricii, 61 Ala. 534. 
 
 13 See Ferguson v. Crawford, 70 N. Y. 258, 26 Am. Kep. 589, and 
 Black, Judgm. §§ 273-276, where the cases are reviewed. 
 
 LAW GARNISH. J 9 (289) 
 
§ 229 LAW OF GARNISHMENT. L^^*- •'■■'• 
 
 Whether Record is Conclusive against Garnishee. 
 
 § 229. The writer has found but few reported cases 
 deciding the question whether the statements con- 
 tained in the record of the main action are conclusive 
 upon the garnishee. These all seem to have been 
 rendered by courts adopting the doctrine that the rec- 
 ord is conclusive. They hold that the garnishee can- 
 not dispute the record of the main action." What- 
 ever may be the law between the parties, or even be- 
 tween one of the parties and a stranger to the suit, the 
 writer is of very firm conviction that this indisputable 
 presumption should never be applied against a gar- 
 nishee, who, from his position, can never raise the 
 question directly, and whose property may be taken 
 from him upon that judgment, or proceedings ancil- 
 lary to it, without any assurance of protection from 
 future liability in another state. It is generally ad- 
 mitted that the record of any judgment may be con- 
 tradicted, to show want of jurisdiction, where such 
 judgment was rendered by a court of another state, 
 and this has often been done in garnishment proceed- 
 ings." Adding to this the well-settled principle that 
 payment of a garnishment judgment rendered by a 
 court having no jurisdiction affords the garnishee no 
 protection,^" what assurance has the garnishee that 
 he will not again be required to pay in a suit in an- 
 other state? 
 
 1* Castner v. Styer, 23 N. J. Law, 236; Coit v. Haven, 30 Conn. 190; 
 Stadler v. Prairie Lodge, 59 Miss. 572. 
 
 15 O'Rourke v. Chicago, M. & St. P. Ry. Co., 55 Iowa, 332, 7 N. W. 
 582; Noble v. Thompson Oil Co., 79 Pa. St. 354, 21 Am. Rep. 66; 
 Loring v. Folger, 7 Gray (Mass.) 505. 
 
 16 See ante, § 213. 
 
 {290) 
 
Ch. 11] JURISDICTION. § 231 
 
 Effect of General Appearance by Defendant. 
 
 Before Garnishment is Instituted. 
 
 § 230. It has been said that, if the principal de- 
 fendant appear generally in the principal suit, it is of 
 no further concern to the garnishee whether the court 
 had previously acquired jurisdiction or not; for, the 
 defendant having waived the point, the garnishee is 
 protected, and cannot afterwards urge it.'^^ When 
 the appearance of the defendant was entered before 
 the garnishment suit was begun, such a result would 
 be inevitable, and there can be no question as to the 
 correctness of the proposition as applied to such cases; 
 for, then, there is a valid and subsisting case in court 
 when the garnishment is instituted. 
 
 After Garnishment is Instituted. 
 
 § 231. But, if the appearance was not till after the 
 garnishment was begun, it is difficult to see upon 
 what principle such appearance can relate back in 
 such a manner as to afford it: any support. It is 
 fundamental that the garnishment is merely ancillary 
 to the principal suit.'* Garnishment must have a 
 valid inception; and, though the mere issuing of sum- 
 mons, and placing the same in the hands of an officer 
 for service, is commencement of suit, and authorizes 
 the issuing of garnishment, yet, if such original sum- 
 mons, or an alias in the place of it, is never served on 
 the principal defendant in such a manner as to give 
 the court jurisdiction of the principal suit, the gar- 
 
 17 Baltimore & O. Ry. Co. v. Taylor. 81 Ind. 24; Ohio & M. Ry. 
 ■Co. V. Alvey, 43 Ind. 180; Washburn v. New York & V. M. Co., 41 
 Vt. 50; Featherston v. Compton, 3 La. Ann. 380. 
 
 18 See ante, § 2. 
 
 (291) 
 
§ 232 LAW OF GARNISHMENT. [Ch. 11 
 
 nishment must fall for lack of support, and no subse- 
 quent appearance and submission to the jurisdiction 
 of the court by the principal defendant can save it. 
 This has been directly held in several cases. ^° 
 
 Appearance in Garnishment Suit. 
 
 § 232. The appearance of the principal defendant 
 in the garnishment proceeding will not confer juris- 
 diction over the main action when the court did not 
 before have it; -" nor will it confer jurisdiction of the 
 garnishment proceedings." Of course, a general ap- 
 pearance in the main action by the principal defend- 
 ant cures no defects in the ancillary garnishment pro- 
 ceedings.^' 
 
 19 Iron CUffs Co. v. Lahais, 52 Mich. 394. 397, 18 N. W. 121; Isa- 
 belle V. Iron Cliffs Co., 57 Mich. 126, 23 N. W. 613; McGuire v. 
 Church, 49 Conn. 248; Lackett v. Rumoaugh, 45 Fed. 23, 30. Com- 
 pare Steen v. Norton, 45 Wis. 412, 417 (dictum); Healey v. Butler, 
 06 Wis. 9, 14, 27 N. W. 822. 
 
 APPEARANCE BY DEPENDANT WILL SUPPORT PREVIOUS • 
 GARNISHMENT: Held, that a general appearance by the defend- 
 ant in attachment estops him from questioning the validity of the 
 proceedings to support a previous garnishment. Parks v. Adams, 
 113 N. C. 473, 18 S. E. 665. Compare Reed v. Fletcher, 24 Neb. 435, 
 37 N. W. 437, 444. 
 
 When the justice of the peace, after the garnishee was served, had 
 lost jurisdiction of the defendant in the main action by an unau- 
 thorized adjournment, held that, after the defendant had again ap- 
 peared and waived the error, the breach did not defeat the garnish- 
 ment, and would not sustain a motion to dismiss. Bryant v. Pem- 
 ber, 43 Vt. 599. 
 
 20 Beaupre v. Brigham, 79 Wis. 436, 48 N. W. 596; State v. Cordes, 
 87 Wis. 374, 58 N. W. 771. Compare Healey v. Butler, 66 Wis. 9, 
 14, 27 N. W. 822. 
 
 21 Insurance Co. of North America v. Friedman, 74 Tex. 56, 11 S. 
 W. 1046. 
 
 22 Greene v. Tripp, 11 R. I. 424. 
 (292) 
 
Cil. 11] JURISDICTION. § 233 
 
 Jurisdiction Acquired by Substituted Service. 
 
 § 233. The principal defendant must have an op- 
 portunity to defend his rights, and notice of the pro- 
 ceedings against him, either actual or constructive; 
 but, as every person is presumed to have constant pos- 
 session of his property, notice to his debtor, or one hav- 
 ing actual possession of his property, to appear and 
 answer as garnishee of his creditor, or the owner of 
 the property in his possession, together with service of 
 notice upon him for the defendant, may be declared, by 
 law, to be notice to the defendant.^' These are the 
 only constitutional requisites to the validity of legis- 
 
 23 Newland v. Circuit Judge of Wayne Co.. 85 Mich. 151, 48 N. W. 
 544; Moore v. Wayne Circuit Judge, 55 Mich. 87, 20 N. W. 801; 
 Douglass V. Phenix Ins. Co., 138 N. Y. 209, 38 N. E. 938; Berry v. 
 Davis, 77 Tex. 191, 13 S. W. 978; Foy v. East Dallas Bank (Tex. Civ. 
 App.) 28 S. W'. 137. Compare Gowan v. Hanson, 55 Wis. 341, 13 
 N. W. 238. 
 
 In delivering the majority opinion of the court in Moore v. Wayne 
 Circuit Judge, above, Champlin, J., uses this language: "It is a 
 well-recognized principle that every state possesses exclusive juris- 
 diction and sovereignty over persons and property virithin its terri- 
 tory, and it may make laws to subject property situated within Its 
 limits, owned by nonresidents, to the payment of claims due to its 
 own citizens from them. Such legislation is based upon the neces- 
 sity of the case, and the injustice which would result from permit- 
 ting nonresident debtors to withdraw their property or assets from 
 the jurisdiction of the state, and is a legitimate exercise of its au- 
 thority to hold and appropriate the property of such debtors to sat- 
 isfy the claims of its own citizens. 1 Smith, Lead. Cas. (7th Ed.) 
 1121 et seq. In the absence of personal service upon the nonresi- 
 dent defendant within the jurisdiction of the court, or his voluntary 
 appearance in the suit, the jurisdiction can extend no further than 
 an inquiry as to the amount of the obligation of the nonresident to 
 its own citizens, for the purpose of showing the extent necessary to 
 •control the disposition of the property,"— citing Picquet v. Swan, 5 
 
 (293) 
 
§ 234 LAW OF GARNISHMENT. r^l^- ^^ 
 
 lation prescribing the mode of substituted service, and 
 result, necessarily, from the universally acknowledged 
 principles that no man's property can be taken from 
 him without due process of law, nor his rights adjudi- 
 cated till he has had his day in court. ^* 
 
 Jurisdiction of the Garnishnieiit Suit. 
 
 § 234. The consideration of this topic involves an 
 examination of the whole subject of procedure from 
 affidavit to judgment, and therefore the reader is re- 
 ferred, for treatment of each particular question on 
 which it depends, to the subsequent pages, where each 
 topic is taken up seriatim. 
 
 Mason, 35, Fed. Cas. No. 11,134; Boswell's Lessee v. Otis, 9 How. 
 336; Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. NefE, 95 U. S. 
 714; Freem. Judgm. § 573; Whart. Confl. Laws, §§ 649, 715; Am. 
 Lead. Cas. (5th Ed.) 625 et seq. See, also. Freeman v. Anderson, 119 
 V. S. 185, 7 Sup. Ct. 165; Curtis v. Bradford, 33 Wis. 190; Beaupre 
 V. Brigham, 79 Wis. 436, 48 N. W. 596. 
 
 But there is no valid reason why courts may not acquire jurisdic- 
 tion by this proceeding over persons and choses in action, as well 
 where both parties to the original action are nonresidents of the 
 state as where the plaintiff in the original suit is a resident, and it 
 was so held in Newland v. Circuit Judge of Wayne Co., supra. 
 
 If the defendant is not personally served and does not appear, no 
 property being attached, and the garnishee summoned not being in- 
 debted or otherwise liable, jurisdiction fails. Searing v. Benton, 41 
 Kan. 758, 21 Pac. 800; Martin v. Dryden, 6 111. 187; Byers v. Baker 
 (Ala.) 16 South. 72; Morris v. Union Pac. Ry. Co., 56 Iowa, 135, 8 
 N. W. 804. 
 
 2 4 Dorr's Adm'r v. Rohr, 82 Va. 359. 
 
 Pennoyer v. NefC, 95 U. S. 714, is the principal case on this subject,^ 
 and the opinions in it are very elaborate and carefully written. 
 See, also, the cases following, bearing directly on the subject, and 
 citing this case: St. Clair v. Cox, 106 TJ. S. 350, 1 Sup. Ct. 354;. 
 Town of Pana v. Bowler, 107 U. S. Slid, 2 Sup. Ct. 704; Amdt v> 
 Griggs, 134 U. S. 316, 10 Sup. Ct. 557. 
 (294) 
 
Gil. 11] JURBDICTION. § 235 
 
 Dependent upon Amount Involved. 
 
 § 235. So far as the jurisdiction depends upon the 
 amount involved, the question is tried by the amount 
 of the plaintiff's claim, and not upon the amount of 
 the garnishee's indebtedness, or the value of the prop- 
 erty in his possession." If the court has jurisdiction 
 of the main action, it will entertain the garnishment, 
 regardless of the amount of the garnishee's liability; 
 for the garnishment is a levy made in that suit, and 
 jurisdiction does not depend upon the value of the 
 property levied upon.^" But, when the garnishment 
 proceedings alone are appealed, and jurisdiction to 
 entertain the appeal depends upon the amount in- 
 volved, the jurisdiction depends upon the amount 
 claimed in the garnishment suit; and this cannot be 
 made by adding together the sums claimed in several 
 garnishments, which are appealed together." 
 
 25 Wetherwax v. Paine, 2 Mich. 555; Wood v. Rocchi, 32 La. Ann. 
 1120; State Nat. Bank v. Allen, 39 La. Ann. 806, 2 South. 600; Pom- 
 eroy v. Rand, McNally & Co. (111. Sup.) 41 N. B. 636. Contra, Trayloi- 
 V. Allen (Ark.) 31 S. W. 570 (Haines v. O'Connor, 5 111. App. 213. 
 and Pomeroy v. Rand, McNally & Co., 54 111. App. 522, overruled). 
 
 The statute limiting the jurisdiction of the justices of the peace tu 
 suits in which the demand does not exceed $40 must mean the de- 
 mand against the principal defendant, and therefore a judgment 
 against the garnishee for a greater sum is not in excess of the juris- 
 diction of the justice. Briggs v. Beach, 18 Vt. 115. Compare Har- 
 mon V. Harwood, 35 Vt. 211. .Jurisdiction to try the issue between 
 the plaintiff and the claimant does not depend upon the amount of 
 the claimant's demand against the garnishee. Edwards v. Cosgro, 
 71 Iowa, 290, 32 X. W. 350. 
 
 2 Moore v. Kelley, 47 Ark. 219, 1 S. VV. 97. 
 
 " State Nat. Bank v. Allen, 39 La. Ann. 800, 2 South. 000. 
 
 When there were several garnishments in the same court against 
 the same fund by different creditors, and the garnishee paid the 
 money into court, and was discharged, it was held that, the whole 
 
 (295) 
 
§ 237 LAW OF GARNISHMENT. [Ch. 11 
 
 Dependent on Jurisdiction over the Main Action. 
 
 § 236. Garnishment can only issue from, be re- 
 turned to, and be tried by the court having jurisdic- 
 tion of the action or judgment against the principal 
 defendant.^* 
 
 Dependent on the Garnishee's Residence. 
 
 § 237. Garnishment proceedings are held not to be 
 limited by the statutes declaring that suits must be 
 
 fund being sufficient to support the jurisdiction of tlie appellate 
 court, and tlie intervener claiming me whole of it, the court had 
 jurisdiction to try his appeals from the judgments against him, al- 
 though the amount awarded to eacu of the garnishing creditors was 
 less than $100. Edwards v. Cosgro, 71 Iowa, 296, 32 N. W. 350. 
 Compare Church y. French, 54 Vt. 420. 
 
 A claimant cannot appeal from a judgment against him which, 
 being less than $20, was not large enough to entitle any of the other 
 parties to an appeal. Cabot v. Burnham, 28 Vt. 694. 
 
 2 8 Hughs V. Ft. Dearborn Nat. Bank, 47 111. App. 567; Toledo, W. 
 & W. Ky. Co. V. Reynolds, 72 111. 487; McGuire v. Pitts' Sons, 42 
 Iowa, 535; Smith v. Dickson, 58 Iowa, 444, 10 N. W. 850; New 
 York, L. E. & W. Ry. Co. v. Cookson, 45 N. J. Law, 302; First Nat. 
 Bank y. Dunn, 102 Ala. 204, 14 South. 7m\); Garland v. McKittrick, 
 52 Wis. 261, 9 N. W. 160. 
 
 Some of the statutes authorize the writ to be issued by some other 
 court or officer, and made returaable to the court having jurisdic- 
 tion of the main action. Pratt v. Young, 90 Ga. 39, 15 S. E. 630; 
 Thompson v. Carper, 11 Humph. (Tenn.) 542; West v. Harvey, 81 
 Ga. 711, 8 S. B. 449. 
 
 The garnishment may be separated from the main action by ap- 
 peal or change of venue. See post, §§ 327, 405. 
 
 Under a statute providing that transcripts of judgments may be 
 filed in the office of the clerk of the courts of counties other than the 
 one in which the judgment is rendered, and, upon filing such tran- 
 script, the judgment shall be a lien on aU the land of the judgment 
 debtor within the county, the clerk has no authority to issue execu- 
 tion or garnishment, and all proceedings in either are void. Seaton 
 V. Hamilton, 10 Iowa, 394. Compare Weimeister v. Singer, 44 Mich. 
 406, 6 N. W. 858. 
 (296) 
 
€h. 11] JURISDICTION. § 237 
 
 brought in the county where one of the party resides. 
 Such suits may be commenced at any place where serv- 
 ice can be had upon the garnishee under a writ issu- 
 ing from the court having jurisdiction of the main ac- 
 tion. °° At all events, immunity from suit in courts 
 away from his place of residence is a personal priv- 
 ilege, which the garnishee may waive,''" although he 
 cannot waive the defendant's rights, or thus confer 
 jurisdiction of the subject-matter.'^ It has also been 
 held that, in order to render a garnishment available, 
 the main action may be brought in a county other 
 than that of the defendant's residence, although the 
 statute require that actions shall be brought in the 
 <;ounty in which the defendant, or one of the defend- 
 sints, resides.'^ 
 
 2 9 Toledo, W. & W. Ry. Co. v. Reynolus, 72 111. 487; Becknell v. 
 Becknell, 110 Ind. 42, 10 N. B. 414; Sherwood v. Stevenson, 25 Conn. 
 431. Contra, South Omaha Nat. Bank v. Farmers* & Merchants' 
 Nat. Bank (Neb.) 63 N. W. 128; West v. Harvey, 81 Ga. 711, 8 S. E. 
 449. 
 
 When both, plaintiff and defendant are nonresidents, it is held 
 that the action must be brought in the county in which the gar- 
 nishee resides. Stern v. Frazer Circuit Judge (Mich.) 63 N. W. 968. 
 For further decisions concerning residence of garnishee, see ante, 
 l§ 15, 17. 
 
 30 Walter A. Wood Mowing & Reaping Mach. Co. v. Edwards (Tex. 
 Civ. App.) 29 S. W. 418. 
 
 SI See post, § 271. 
 
 32 McPhillips V. Hubbard, 97 Ala. 512, 12 South. 711; Smith v. 
 Mulhern, 57 Miss. 591. Contra, Hoagland v. Wilcox, 42 Neb. 138, 
 60 N. W. 376. 
 
 A statute authorizing the commencement of suits in the county 
 where the garnishee resides is held not to make actions transitory 
 which were local before, and therefore an action for trespass to 
 land in another state cannot be maintained by summoning a garT 
 nishee residing at the place where the action is brought. Allen v. 
 Connecticut River Lumber Co., 150 Mass. 560. 23 N. E. 581. 
 
 (297) 
 
§ 239 LAW OF GARNISHMENT. [Ch. 11 
 
 Dependent on Complimce with Statutory Requirements. 
 
 § 238. This topic will now be dropped with the 
 simple statement that acquiring and maintaining ju- 
 risdiction of garnishment cases depends upon a strict 
 compliance with the statutory requirements, and the 
 garnishee cannot waive their observance.'^ 
 
 Jurisdiction of the Property Sought to be 
 Garnished. 
 
 EemmL 
 
 § 239. As we have already seen, jurisdiction cannot 
 be acquired of the garnishment suit till the court has 
 jurisdiction of a valid suit or judgment against the 
 principal defendant. So, too, no jurisdiction can be 
 acquired over the property sought to be reached with- 
 out obtaining jurisdiction of the garnishee by appro- 
 priate proceedings." These are conditions precedent, 
 and the garnishee has no power to waive defects in 
 these preliminary proceedings, and confer jurisdiction 
 upon the court by voluntary appearance.''^' The law 
 must be made to attach by its own substantial appoint- 
 ments. But, all these conditions being complied with, 
 it does not necessarily follow that the court thereby 
 
 33 steen v. Norton, 45 Wis. 412, 417; Wells v. American Express 
 Co., 55 Wis. 23, 11 N. W. 537; McDonald v. Vinette, 58 Wis. 619, 17 
 N. W. 319; Edler v. Hasche, 67 Wis. 653, 31 N. W. 57; McCormick 
 Harvesting JIacli. Co. v. .Tames, 84 Wis. 600, 54 N. W. 1088; Hebel 
 V.Amazon Ins. Co., 33 Mich. 400; Bttelsohn v. Fireman's Fund Ins. 
 Co., 64 Micb. .^31, 31 N. W. 201; Segar v. Muskegon Shingle & 
 Lumber Co., 81 Mich. 344, 45 N. W. 982; State v. Duncan, 37 Neb. 
 031, 56 N. W. 214; Gibbon v. Bryan, 3 111. App. 298; Gates v. Tus- 
 ten, 89 Mo. 13, 14 S. W. 827. See, also, ante, § 6. 
 
 3* See ante, §§ 234^-238. 
 
 3 5 See ante, § 238. 
 (298) 
 
Ch. 11] JURISDICTION. § 240 
 
 acquires power to pass judgment against the gar- 
 nishee in respect to the debt or property of the defend- 
 ant, which the plaintiff seeks by the proceedings to ob- 
 tain. It may, and frequently does, hapoen that there 
 is a valid suit or judgment against the principal de- 
 fendant, proper proceedings against the garnishee, 
 property under his control, or a debt due from him be- 
 longing to the defendant, and yet the court is without 
 authority to condemn it to the satisfaction of the plain- 
 tiff's demand. 
 
 Corporeal Property beyond Territorial Limits of Jurisdiction. 
 
 § 240. Only courts empowered to conduct proceed- 
 ings purely in personam, such as courts of chancery, 
 can require obedience to their orders in respect to 
 property corporeally beyond the territorial limits of 
 the court's jurisdiction. Therefore, if the garnishee 
 have corporeal property of the defendant under his 
 control, but beyond the territorial jurisdiction of the 
 court, the court has no power to require him to fetch it 
 into the jurisdiction, nor can it pass judgment against 
 him on account thereof.'" 
 
 8 8 Bates V. Chicagor M. & St P. Ry. Co., 60 Wis. 296, 19 N. W. 72; 
 Montrose Pickle Co. v. Dobson & Hill's Manuf g Co., 76 Iowa, 172. 
 40 N. W. 705; Bowen v. Pope, 125 111. 28, 17 N. E. 64; Stevehot v. 
 Eastern Ey. Co. (Minn.) 63 N. W. 256; Western Ry. Co. v. Thorn- 
 ton, 60 Ga. 300; Sutherland v. Peoria Second Nat. Bank, 78 Ky. 
 250; Miller v. Hooe, 2 Cranch, C. C. 622, Fed. Cas. No. 9,573; Wheat 
 V. Piatt City & Ft. D. Ry. Co., 4 Kan. 370; Buchanan v. Hunt, 98 
 N. Y. 560. Compare Lawrence v. Smith, 45 N. H 533 
 
 If the property held without the jurisdiction by the garnishee 
 had been sold by him before he was summoned, he may be charged 
 for the proceeds. Merchants' & Manufacturers' Nat. Bank v. Wil- 
 liam A. Beader Glue Co., 164 Pa. St. 1, 30 Atl. 290. 
 
 The supreme court of Pennsylvania once held the contrary view, 
 that the garnishee, having property under his control, could be 
 
 (299) 
 
§ 242 LAW OF GARNISHMENT. [Ch. 11 
 
 No Court can Proceed in Rem without a Res wiXhin the Jurisdic- 
 tion. 
 
 § 241. Thus far the decisions are uniform, and the 
 principle of law upon which they are founded is much 
 broader than the proposition we have stated; for it 
 applies to all kinds of property, both corporeal and in- 
 corporeal. No court, proceeding in rem, can exercise 
 any authority, unless the res is within the territory 
 over which the court has jurisdiction. The principle 
 is universally acknowledged. It is in attempting to 
 apply it that the confusion and difference of opinion 
 arises. There is no difficulty in locating property hav- 
 ing a corporeal existence, — movables capable of being 
 seen and seized; but how shall we locate property 
 having no bodily substance, choses in action, con- 
 tractual rights, debts not evidenced by writing, and 
 debts evidenced by notes, bills, stocks, bonds, etc. ? If 
 they are situated at any place in particular, where is 
 that place? Where is their situs? 
 
 How Far Residence of Omier Affects Sitiis of Debts. 
 
 § 242. For most purposes,— taxation, distribution, 
 etc., — it has long been a recognized and established fic- 
 tion of law that their situs is at the domicile of the 
 owner. It would seem almost impertinent to remark 
 that this is a fiction merely, and that it is impossible, 
 from the nature of things, for intangible property to 
 have an actual location, were it not for the fact some 
 courts and text writers have at times appeared ob- 
 
 cbarged in respect to It wherever it might be. Childs v. Digby, 24 
 Pa. St. 23. But the same court has since repudiated it as bad law, 
 and now all courts agree. Pennsylvania Ky. Co. v. Pennock, 51 
 Pa. St. 244. 
 (300) 
 
Ch. 11] JURISDICTION. § 242 
 
 livious to it." Though it is not discussed in the opin- 
 ion, Chancellor Kent, as early as 1809, seems to have 
 taken it for granted that this fiction does not apply to 
 debts when they are sought to be reached by garnish- 
 ment in a jurisdiction where the owner does not re- 
 side.^* And the same doctrine has been recognized 
 and applied tacitly,'" or positively and directly as- 
 serted,*" in almost every court of last resort in Amer- 
 
 8 7 National Fire Ins. Co. v. Chambers (N. J. Ch.) 32 Atl. 663. 
 
 S8 Embree v. Hanna, 5 Johns. 101. 
 
 8 » Moore v. Wayne Circuit Judge, 55 Mich. 84, 20 N. W. 801; 
 First Nat. Banli v. Burch, 80 Mich. 242, 45 N. W. 93; Newland v. 
 Circuit Judg-e of Wayne Co., 85 Mich. 151, 48 N. W. 544; Broadstreet 
 V. Clark, 65 Iowa, 670, 22 N. W. 919; Holmes v. Remsen, 4 Johns. 
 Ch. (N. y.) 460, 8 Am. Dec. 581; Id., 20 Johns. 229, 9 Am. Dec. 269; 
 Barrow v. West, 23 Pick. 270; Mattingly v. Boyd, 20 How. 128; Ful- 
 ler V. Foote, 56 Conn. 341, 15 Atl. 760. 
 
 *o Lewis V. Bush, .SO Minn. 244, 15 N. W. 113; Mooney v. Union 
 Pac. Ry. Co., 60 Iowa, 346, 14 N. W. 343; Tlngley v. Bateman, 10 
 JIass. 343; Burlington & M. R. Ry. Co. v. Thompson, 31 Kan. 180, 1 
 Pac. 622; Ward v. Morrison, 25 Vt. 593; National Fire Ins. Co. v. 
 Chambers (N. J. Ch.) 32 Atl. 663; Commercial Nat. Bank v. Chicago,. 
 M. & St. P. Ry. Co., 45 Wis. 172; Bragg v. Gaynor, 85 Wis. 468, 55 
 N. W. 919; BeiTy v. Davis, 77 Tex. 191, 13 S. W. 978; Cochran v. 
 Fitch, 1 Sandf. Ch. (N. Y.) 142; Plimpton v. Bigelow, 93 N. Y. 596; 
 Douglass V. Phenix Ins. Co., 138 N. Y. 209, 33 N. B. 938; East Ten- 
 nessee, V. & G. Ry. Co. V. Kennedy, 83 Ala. 462, 3 South. 852; Con- 
 nor V. Hanover Ins. Co., 28 Fed. 549; Neuf elder v. German-American 
 Ins. Co., 6 Wash. 336, 33 Pac. 870; Mobile & O. Ry. Co. v. Barnhill, 
 91 Tenn. 395, 19 S. W. 21; Fithian v. New York & E. Ry. Co., 31 
 Pa. St. 114; dissenting opinion of Horton, C. J., to Missouri Pac. Ry.. 
 Co. v. Sharitt, 43 Kan. 375, 23 Pac. 430. CONTRA, Louisville & N. 
 R. Co. V. Dooley, 78 Ala. 524; Sawyer v. Thompson, 24 N. H. 510; 
 Wright V. Chicago, B. & Q. Ry. Co., 19 Neb. 175, 27 N. W. 90, 93; 
 Illinois Cent. Ry. Co. v. Smith, 70 Miss. 344, 12 South. 461; Missouri 
 Pac. Ry. Co. v. Sharitt, 43 Kan. 375, 23 Pac. 430; Central Trust Co. 
 V. Chattanooga, R. & C. R. Co., 68 Fed. 685; Everett v. Connecticut 
 Mut. Life Ins; Co., 4 Colo. App. 509, 36 Pac. 616; Atchison, T. & S. 
 F. Ry. Co. V. Maggard (Colo. App.) 39 Pac. 987. 
 
 (301) 
 
§ 242 LAW OF GARNISHMENT. [Ch. 11 
 
 ica to which the question has ever been submit- 
 ted since that time; so that, notwithstanding some 
 dissent, and more obiter, we may lay it down as a gen- 
 eral proposition that the residence of the defendant 
 does not affect the question as to whether the debt 
 should be considered as having a situs within the ju- 
 risdiction of the court for the purposes of garnishment, 
 whether such principal defendant was personally 
 served with process within the jurisdiction or not. 
 Under the custom of London, and until comparatively 
 recent times in this country, garnishment could be had 
 only when the defendant was a nonresident and owned 
 no property within the jurisdiction which could be 
 taken by attachment. To say that debts due nonresi- 
 dents could not be garnished would wholly defeat 
 these statutes. This theory has originated since the 
 remedy has been allowed in suits against residents. 
 
 But, having disposed of this question, how much 
 nearer are we to a definite answer to the original? 
 This does not remove the difficulty ; for, if this rule is 
 not to be applied, we must seek some other means of 
 determining whether, under the particular circum- 
 stances of the case in hand, the debt sought to be at- 
 tached should be condemned to the satisfaction of the 
 plaintiff's demand. We cannot go the length of say- 
 ing that the debt is everywhere, simply because it can- 
 not be located; or, even if this were admitted, we can- 
 not, for that reason, dispense with appropriate process 
 to institute the proceeding, whereby the machinerv of 
 the law shall be brought home, and caused to attach 
 to the debt sought to be garnished. It is in seeking 
 for this touchstone that the confusion has arisen. 
 (302) 
 
Ch. 11] JUKISDICTION. ' § 243 
 
 Injustice Camed by Conflicting Decisions on This Question. 
 
 § 243. The embarrassment which besets any at- 
 tempt to reconcile the decisions on this important sub- 
 ject can be no better shown than bv reference, briefly, 
 to a few of the vicious cases to be found in the books. 
 The supreme court of Alabama, having declared, in 
 Eailroad Co. v. Dooley, 78 Ala. 524, the rule which 
 should be adopted in the courts of that state in decid- 
 ing the question, refused to allow protection under a 
 paid garnishment judgment rendered in Tennessee, 
 simply because the court of that state failed to follow 
 the same rule; and this although the principal defend- 
 ant was personally served with process within the ju- 
 risdiction of the court of Tennessee.*^ The supreme 
 court of Mississippi refused to recognize proceedings 
 in garnishment against a corporation in a state where 
 it was domiciled, on the ground that the debt sought to 
 be garnished, being for labor performed in Mississippi, 
 where the principal defendant resided, was exempt 
 from garnishment there, and therefore could not be 
 reached by that process anywhere else, — a proposition 
 utterly without support on authority. No statute can 
 have any extraterritorial force; and, if it be said that 
 the lex loci contractus should be applied, which should 
 not, yet, certainly, the failure to apply it could be 
 nothing niore than error. The court seemed to feel 
 the frailty of the position, for they discussed the ques- 
 tion of situs as an additional reason, although recog- 
 nizing "the numerous decisions which are cited and 
 quoted as authority for the view opposed." " One 
 more case will suffice for our purposes. The supreme 
 
 *i Alabama G. S. Ry. Co. v. Ohumbey, 92 Ala. 317, 9 South. 286. 
 42 Illinois Cent. Ry. Co. v. Smith, 70 Miss. 344, 12 South. 461. 
 
 (303) 
 
§ 244 LAW OF GARNISHMENT. [Cll. IS 
 
 court of Kansas, having held that a foreign corpora- 
 tion, operating a line of railroad in the state, could be- 
 charged as garnishee in respect of certain wages, 
 earned in Nebraska by an employe of the company who 
 lived in the latter state, and who had not been per- 
 sonally served with process within the state of Kan- 
 sas,*' passed judgment against a Missouri railroad cor- 
 poration for wages earned in Kansas by a resident of 
 the latter state; the railroad company having beeni 
 summoned as garnishee, in a court of Missouri, for the 
 same debt, prior to the commencement of the laborer's 
 suit. Except the domicile of the garnishee, the facts 
 of the two cases were exactly the same; yet, rather 
 than allow the court of Missouri to apply the Kansas 
 rule, the Kansas court preferred to subject the gar- 
 nishee to double liability.** 
 
 Other Rules fa Determine Situs of Debts. 
 
 § 244. Laying aside these extraordinary cases, let 
 us proceed to inquire what has been commonly consid- 
 ered by various courts in determining the question in 
 hand. Although resting largely, if not entirely, upon 
 the personal exemption of the garnishee, the fact that 
 he is a nonresident has frequently been stated as the 
 reason why he should not be charged; *^ and this has 
 
 4 3 Burlington & M. R. Ry. Co. v. Thompson, 31 Kan. 180, 1 Pac. 622. 
 
 Want of personal service does not appear in the printed report, bijt 
 see the next case. 
 
 ** Missouri Pac. Ry. Co. v. Sharitt, 4.3 Kan. 375, 23 Pac. 430. 
 
 However, let it be remembered, to the credit of this court, that 
 the dissenting opinion of Horton, C. J., to this case is one of the most 
 able expositions of the law on this subject to be found anywhere in 
 the books, and will amply repay careful perusal by any one inter- 
 ested. 
 
 *5 See cases cited in section 15, ante. 
 (304) 
 
Cll. 11] JDEISDICTION. §245 
 
 been applied to foreign corporations doing business in 
 a state, on the ground that, not being incorporated in 
 the state, they can have no existence there," and there- 
 fore the debt sought to be garnished cannot be or have 
 any situs there for the purposes of garnishment. But 
 the reader will see, by reference to the authorities, that 
 the position is unfounded in both cases. Other cases 
 seize upon the agreed place of payment of the debt as 
 the fact which shall determine whether or not the situs 
 is within the jurisdiction of the court,*^ especially in 
 cases of debts evidenced by negotiable paper, etc" 
 But, by the weight of authority, this, even though ex- 
 pressly stated, is no objection to charging the debtor 
 for it elsewhere.^" 
 
 The True Criterion to Determine Situs in Garni»hment. 
 
 § 245. It is impossible to bring harmony out of 
 chaos. Let us for a moment consider the reason and 
 nature of things. In its essential elements, a garnish- 
 ment suit is a suit brought by the principal defendant 
 against the garnishee, in the name and for the benefit 
 of the plaintiff.^" The plaintiff is empowered by law 
 to step into the shoes of the garnishee's creditor, and 
 acquire his rights; no more, and no less. Whatever 
 
 4« See cases cited under section 17, ante; Douglass v. Plienix Ins. 
 Co., 138 N. Y. 209, 33 N. E. 938; Craig v. Gunn, 67 A^t. 92, 30 Atl. 800. 
 
 *7 American Cent. Ins. Co. v. Hettler, 37 Neb. 849. 56 N. W. 711; 
 Winslow V. Fletclier, 53 Conn. 390, 4 Atl. 250; Continental Ins. Co. 
 T. Chase (Tex. Civ. App.) 33 S. W. 602. 
 
 *8 Baylies v. Houghton, 15 Vt. (i2(>. Compare Fitch v. Brewer, 42 
 N. J. Eq. 300, 11 Atl. 330. 
 
 4» Hannibal & St. J. Ry. Co. v. Crane, 102 111. 249, 40 Am. Rep. 581; 
 Commercial Nat. Bank v. Chicago, M. & St. P. Ry. Co., 45 Wis. 172. 
 See ante, § 60. 
 
 50 See ante, § 3. 
 
 LAW GARNISH. — 20 (305 J 
 
§ 246 LAW OP GARNISHMENT. [Ch. 11 
 
 he could do, the plaintiff, under the statutory novation 
 of garnishment, may do, as bis assignee and attorney 
 in fact, by operation of law. Wherever the garnishee 
 could be sued by the defendant for the demand, he may 
 be charged as garnishee on account of it. Other 
 states must recognize this right, if they recognize gar- 
 nishment at all. This would seem to follow as of 
 course, and the writer offers it as his humble opinion 
 that this is the only true solution of the matter. The 
 following cases declare the doctrine, and to these the 
 reader is referred." 
 
 Not Necessarily the Sane as Determines Rights of Parties. 
 
 § 246. Beyond this the question of jurisdiction is 
 not involved. The question to be decided is not one 
 of the jurisdiction of the court, but of the rights of the 
 
 01 Wyetb Hardware & MaDuf g Co. v. Lang, 127 Mo. 242, 29 S. W. 
 1010: Mooney v. Union Pac. Ry. Co., 60 Iowa, 346, 14 N. W. 343; Ger- 
 man Bank v. American Fire Ins. Co., 83 Iowa, 491, 50 N. W. 53; Har- 
 vey V. Great Nortliern Ry. Co., 50 Minn. 405, 52 N. W. 905; Neuf elder v. 
 German-American Ins. Co., 6 Wash. 386, 33 Pac. 870; Cross v. Brown 
 (R. I.) 33 Atl. 147; Mobile & O. Ry. Co. v. Barnliill, 91 Tenn. 395, 19 
 S. W. 21; Burlington & M. R. Ry. Co. v. Thompson, 31 Kan. 180, 1 
 Pac. 622; National Fire Ins. Co. v. Chambers (N. .7. Ch.) 32 Atl. 663; 
 East Tennessee, V. & G. Ry. Co. v. Kennedy, 83 Ala. 462, 3 South. 852; 
 Pomeroy v. Rand, McNally & Co. (111. Sup.) 41 N. E. 636; dissenting 
 opinion in Missouri Pac. Ry. Co. v. Sharitt, 43 Kan. 375, 23 Pac. 430. 
 As bearing on the question, see also, Mason v. Beebee, 44 Fed. 556; 
 Commercial Nat. Bank v. Chicago, M. & St. P. Ry. Co., 45 Wis. 172; 
 Hannibal & St. J. Ry. Co. v. Crane, 102 111. 249, 40 Am. Rep. 581; 
 Fithian v. New York & E. Ry. Co., 31 Pa. St. 114. 
 
 The following is from the opinion in Harvey v. Great Northern Ry. 
 Co.: "WhUe, by fiction of law, a debt, like other personal property, 
 is for most purposes— as, for example, transmission and succession- 
 deemed attached to the person of the owner, so as to have its situs 
 at his domicile, yet this fiction always yields to laws for attaching 
 the property of nonresidents, because such laws necessarily assume 
 (306) 
 
■Ch. 11] JURISDICTION. § 246 
 
 parties." The writer does not state this as the con- 
 trolling principle in determining whether the gar- 
 nishee should be charged for a particular debt. Al- 
 though the court has jurisdiction of the debt, it may 
 deem it unjust to charge the garnishee in respect of 
 it." The situs of property for the purpose of jurisdic- 
 tion is one thing, and its situs for the purpose of de- 
 termining the rights of the parties thereto is another; 
 and the two are not necessarily the same.°* What- 
 ever rule each state may choose to adopt to regulate 
 proceedings in garnishment brought in their respective 
 jurisdictions, we insist that this is the only correct rule 
 to determine the question when it is sought to collect 
 a second time from one who has been charged as gar- 
 nishee in a foreign jurisdiction. The garnishee is 
 helpless, and at the mercy of the court that charged 
 him as such. What has he done that he should be 
 placed UDon the rack bv the contending courts, and 
 stretched both ways? The supreme court of Ne- 
 braska held that a debt sought to be reached by gar- 
 nishment in that state had no situs within the jurisdic- 
 tion, in any such sense that it could be garnished 
 there; but when, in an exactly similar case, a court 
 
 that the property has a situs distinct from the owner's domicile. For 
 such purposes a debt has a situs wherever the debtor or his property 
 can be found. Wherever the creditor might maintain a suit to re- 
 cover the debt, there it may be attached as his property, provided, of 
 course, the laws of the forum authorize it." 
 
 AN ABLE AND ELABORATE DISCUSSION of this question will 
 also be found in National Fire Ins. Co. v. Chambers, above. 
 
 52 Mason V. Beebee, 44 Fed. 556, 5G3. 
 
 53 Such a case is Dralie v. Lalie Shore & iVI. S. Ry. Co., GO Mich. 
 1(58, 37 N. W. 70. 
 
 64 Mason v. Beebee, 44 Fed. 556, 559; Cross v. Brown (R. I.) 33 
 Atl. 147, 149, 
 
 (307) 
 
§ 246 LAW OF GAENISHilENT. [Ch. 11 
 
 of another state held that it had jurisdiction, and 
 charged the garnishee, and the garnishee sought the 
 protection of this judgment in Nebraska, the court of 
 that state declared the protection to be perfect. This, 
 we submit, is the correct doctrine; the court of the 
 foreign state having jurisdiction, because the creditor 
 could have sued there." 
 
 5 Chicago, B. & Q. Ry. Co. v. Moore, 31 Neb. G29, 48 N. W. 475. 
 The following is from the opinion in this case: "The material in- 
 quiry, therefore, is, did the Iowa court obtain jurisdiction over the 
 debt here sued for, so as to subject U to the claim of the plaintiff in 
 garnishment? It appears that, in the suit commenced by Grove 
 against Moore in the justice court in Iowa, notice of garnishment was 
 duly served upon the railroad company ; that it appeared and answer- 
 ed, disclosing its indebtedness to Moore in the sum of $25.92, and in 
 obedience to the order of the justice the company paid the money into 
 court. Moore was also duly served by publication, and judgment was 
 rendered against him as a nonresident. These facts, under the stat- 
 utes and decisions of Iowa, conferred jurisdiction over the debt due 
 from the garnishee. * * * The judgment in the garnishment suit 
 set up by the plaintiff in error, being valid and binding upon the par- 
 ties thereto in the state where rendered, is entitled to full faith and 
 credit In this state, and cannot be collaterally attacked. * ■» * In 
 reaching the conclusion we have, we do not overrule or in any man- 
 ner modify the rule laid down in Wright v. Railroad Co., 19 Neb. 175, 
 27 N. W. 90. We are simply giving such faith and credit to the 
 judgment of a sister state as comity between states demands." Cited 
 with approval in Singer Manuf'g Co. v. Fleming, 39 Neb. 679, 58 N. 
 W. 226, 229. As supporting this rule, see, also, Connors v. Hanover 
 Ins. Co., 28 Fed. 549; Wyatt's Adm'r v. Rambo, 29 Aia. 510; Gunn 
 V. Howell, 35 Ala. 144, 73 Am. Dec. 484. 
 (308) 
 
Ch- .12] PRELIMINARY PROCEDURE. § 2.47 
 
 CHAPTER XII. 
 
 AFFIDAVIT, SUMMONS, SERVICE, RETURN, NOTICE TO DE- 
 PENDANT, AND DISSOLUTION PROCij.iiiDINGS. 
 
 i 247. Affidavit — Jurisdictional Prerequisites — A Complaint — En- 
 titling. 
 
 248. Misjoinder of Actions— One Affidavit for Two Writs 
 
 249. Judgment can be Only for the Liability Charged in the 
 
 Affidavit. 
 
 250. Averments— Positive and Alternative— Qualifications of 
 
 Affiant and Magistrate. 
 
 251. What Averments are Essential. 
 
 252. What Averments are Unnecessary. 
 
 253. Amending the Affidavit. 
 
 2.54. • Proper Phrasing of Essential Averments. 
 
 255. Time of Swearing to and Filing the Affidavit. 
 
 256. Summons or Writ of Garnishment — Issues of Course, Pur- 
 
 suant to Affidavit. 
 
 257. Special Notice. 
 
 258. The Writ is a Process, and must Possess Process Ele- 
 ments. 
 
 259. Entitling — One Summons for Two Suits. 
 
 260. Executors, Corporations, etc.— How Named as Gar- 
 nishees. 
 
 261. ■ All Obligees must be Named in, to Reach Joint Lia- 
 bility. 
 
 262. Joint and Several Obligees as Garnishees. 
 
 263. Garnishees Severally Liable, Named as Joint. 
 
 264. When Returnable. 
 
 265. Must be in Writing, and Contain Statutory Clauses. 
 
 266. Naming and Misnaming the Parties. 
 
 267. —^ Errors and In-egularities- How Taken Advantage of and 
 
 Cured. 
 
 268. Service of Garnishment Summons— Must be Made within 
 
 Proper Time and TeiTitory by Proper Officer. 
 
 269. Must Otherwise Comply with Statute. 
 
 270. Garnishee may Waive Irregularities. 
 
 271. Garnishee cannot Waive Jurisdictional Defects. 
 
 (309) 
 
§ 247 LAW OF GARNISHMENT. [Ch. 12. 
 
 § 272. Service of Garnishment Summons— Upon Natural Persons. 
 
 273. Upon Corporations. 
 
 274. Laws for Substituted Service Constitutional. 
 
 275. Such Statutes must be Strictly Pursued. 
 
 276. Such Service not Foundation for Personal Judgment. 
 
 277. The Officer's Return— The Only Proper Evidence of Service. 
 
 278. Should State Acts Done, the Time, and Persons Served. 
 
 279. Defects in— How Curea. 
 
 2S0. Notice of the Garnishment to the Principal Defendant— Na 
 
 Notice Need be Served on Defendant. 
 281. Notice Required by Statute to Secure Good Faith. 
 
 282. Whether .Jurisdictional. 
 
 283. Time, Manner, Sufficiency, and Waiver of Service of 
 
 This Notice. 
 
 284. Proceedings to Vacate Garnishment for Errors, etc. 
 
 285. The Appeai-ance of the Garnishee — Manner, Right of, and 
 
 How Enforced. 
 
 286. Effect of General Appearance 
 
 Affidavit. 
 
 Jurisdictional Prerequisities — A Complaint — E^ilitling. 
 
 § 247. Garnishment is anomalous, not only in its 
 scope, but also in its practice; and, as it is entirely stat- 
 utory, the methods of procedure must be such as the 
 statute authorizing it points out and contemplates. 
 In the first instance, the affidavit is the source of au- 
 thority to the court, giving it jurisdiction to issue gar- 
 nishment summons. Afterwards it stands for the 
 plaintiff's declaration or complaint against the gar- 
 nishee in some states,^ and, being in the nature of a 
 complaint, it is held that it should be tested by the 
 same rules.^ The affidavit need not be entitled in the 
 
 1 Bethel v. Linn, 63 Mich. 464. 30 N. W. 84; Steen v. Norton, 45 
 Wis. 412. 
 
 2 Everdell v. Sheboygan & Fond du Lac Ry. Co., 41 Wis. 395, 401.- 
 
 (310) 
 
Ch. 12] PRELIMINAEV PROCEDURE. § 249 
 
 cause, provided it shows, upon its face, the case in 
 which it is intended to be used ; but it would probably 
 be good practice to so entitle it/ 
 
 Misjoinder of Actions — One Affidavit for Two IVrits. 
 
 § 248. The statutes authorize charging,' the gar- 
 nishee for two classes of liability, — indebtedness to the 
 defendant, and possession of his property; and, as 
 they do not require proceedings to be separate, the gar- 
 nishee may be charged as debtor and custodian under 
 the same affidavit, although the joinder of trover and 
 assumpsit would be bad in any other form of action.* 
 So, too, the same affidavit may be ground for issuing 
 several writs to garnishees liable severally only." 
 Likewise, one affidavit, if containing sufficient aver- 
 ments, may be the foundation for issuing both the at- 
 tachment and the garnishment writ.' 
 
 Judgment can he Only for the Liability Charged in the Affidniit. 
 
 § 249. The plaintiff can require the garnishee to 
 answer only to the grounds of liability charged in the 
 affidavit, and, therefore, if it only alleges indebtedness 
 to the defendant, the plaintiff cannot question him 
 concerning property in his possession belonging to the 
 
 s Burnham v. Doolittle, 14 Neb. 214, 15 N. W. 606. « 
 
 * Peninsular Stove Co. v. Circuit Juage of Wayne Co., So Mich. 
 400, 48 N. W. 540; Aultman, Miller tc Co. v. Markley (Minn.) 6.3 N. 
 W. 1078. 
 
 6 State Sav. Bank v. Circuit Judge of Wayne Co., 05 Mich. 100, 54 
 N. W. 632; Curtis v. Henrietta Nat. Bank, 78 Tex. 260, 14 S. W. 
 014; Goll V. Hubbell, 61 Wis. 203, 297, 20 X. W. 674; Ahrens Ott 
 Manuf'g Co.v. Patton Sash, Door & Building Co., 94 Ga. 247, 21 S. 
 E. 523; Curry v. Woodward, 50 Ala. 258. 
 
 « Carper v. Richards, 13 Ohio St. 219. 
 
 (311) 
 
§ 250 LAW OF GARNISHMENT. [Cll. 12 
 
 defendant, or vice versa; ^ nor can he be charged on 
 a ground not alleged, even though he should admit lia- 
 bility/ But, upon an affidavit charging that the gar- 
 nishee is indebted to the defendant, without further 
 allegation, he may be charged for a debt which he 
 owes to either of the defendants." 
 
 Averments — Positive and Alter natice — Qualifiadions of Affiant and 
 Magistrate. 
 
 § 250. Whether an affidavit alleging both grounds 
 of liability in the disjunctive (has property, etc., or is 
 indebted, etc.) is sufficient, is not agreed; but it is 
 generally held sufficient." The affidavit must be 
 made by one having personal knowledge of the essen- 
 tial facts deposed to,^' and authorized to make it,^^ and 
 
 I Mack V. Brown, 20 Midi. 335; Nash v. Gale, 2 Slinn. 311 (Gil. 265>. 
 See, also, ante, § 50, and post, § 291. Contra, Prince v. Hecnan, .5 
 Minn, 347 (Gil. 279). * 
 
 s Botsford V. Simmons, 32 Jlich. 3.">2. Compare Connor v. Third 
 Nat. Bank, 90 Mich. 328, 51 N. W. 523; Go'll v. Hubbell, 61 Wis. 293, 
 20 N. W. 674, 21 N. W. 288. 
 
 » Aultman, Miller & Co. v. Markley (Minn.) 63 N. W. 1078. 
 
 10 Russell V. Ralph, 53 Wis. 328, 10 N. W. 518; Everdell v. Sheboy- 
 gan & Fond du Lac R. Co., 41 Wis. 395, 401; White v. Lynch, 26 Tex. 
 195. Contra, Prince v. Heenan, 5 Minn. 347 (Gil. 279), overruled In 
 Aultman, Miller & Co. v. Maikley (Minn.) 63 N. W. 1078. Compare 
 Weimeister v. JIanville, 44 Mich. 408, 6 N. W. 859; Jones v. Peek, 
 101 Mich. 389, 59 N. W. 659. 
 
 II Weimeister v. Manville, 44 Mich. 408, 6 -N. W. 859; Streissguth^ 
 V. Reigelman, 75 Wis. 212, 43 N. W. 1116. 
 
 But an affidavit sworn to by one of several plaintiffs, as upon the 
 knowledge of all, presumes the personal knowledge of the deponent, 
 and is sufficient. Williams v. International Grain & Stock Board, 99 
 Mich. 80, 57 N. W. 1089. 
 
 12 Wetherwax v. Paine, 2 Mich. 555; Jackson v. Shipman, 28 Ala. 
 488; AVillis v. Lyman, 22 Tex. 268; First Nat. Bank v. Gi-aham (Tex. 
 (312) 
 
■Ch. 12] PRELIMINARY PROCEDURE. § 251 
 
 before a proper person," and the required averments 
 must be so positive that perjury can be assigned upon 
 them. This is the test of their sufficiency.^'' 
 
 What Averments are Essential. 
 
 § 251. What facts must be shown by the affidavit 
 ■depend entirely upon the requirements of the statute 
 under which the proceedings are conducted. As we 
 have already seen, the law authorizing this mode of 
 procedure is in derogation of common law, and, when 
 put into practice, operates as a compulsory statutory 
 assignment to the plaintiff of the defendant's property 
 rights." Therefore, Qv ery fact which the statute au- 
 thorizing the proceedings requires to be deposed to in 
 the affidavit for garnishment must be averred therein, 
 or the court will acquire no jurisdiction. "The plain- 
 tiff in the principal suit may resort to this extraordi- 
 nary remedy at his own will, but this is true only sub 
 modo. It is not the policy of the statute to place this 
 anomalous action, like ordinary actions, at the mere 
 di screti on of the plaintiff, or to give courts unqualified 
 iurisdicBon^)FTl7as in ordinary actions, where every I 
 
 App.) 22 S. W.^ 1101. Compare Miller t. Chicago, M. & St. P. Ry. 
 Co., 58 Wis. 310, 17 N. W. 130; Trenton Banking Co. v. Haverstlck, 
 11 N. J. Law, 171; Everett v. Connecticut Mut. Ins. Co., 4 Colo. App. 
 509, 36 Pac. 616. 
 
 13 James v. Jenkins, Hemp. 189, Fed. Cas. No. 7,181a. 
 
 Held, that an affidavit sworn to before a justice of the peace is 
 sufficient to sustain the issuing of a writ from the circuit court; and 
 any one who may administer oaths may take the affidavit, though the 
 statute directs that it be sworn to before the clerk of the court. Horat 
 V. .Tackel, 59 111. 139. 
 
 14 Russell V. Ralph, 53 Wis. 328, 10 N. W. 518; Greene v. Ti-ipp, 11 
 R. I. 424. Compare Freer v. White, 91 Mich. 74, 51 N. W. 807. 
 
 15 See ante, §§ 6, 192. 
 
 (313) 
 
§ 251 LAW OF GARNISHMENT. [Oh, 12 
 
 person can become a plaintiff, have process, and put 
 tlie court's Jurisdiction in motion on demand. Tlie 
 plaintiff in g:arnishment proceedings, as in attachment 
 on mesne process, replevin, and the like, can put in 
 motion the jurisdiction of the court onlv by complying 
 with the statutory prerequisites; and the court takes 
 jurisdiction of the proceeding only upon the plaintiff's 
 compliance with the preliminaries which the statute 
 makes the condition of jurisdiction. Failure of the 
 affidavit is, therefore, failure of jurisdiction over the 
 subject-matter." " And the affidavit fails unless it 
 contains every averment the statute requires it to con- 
 tain." 
 
 16 Steen v. Norton, 45 Wis. 412. 
 
 17 ILLUSTRATIVE CASES: The following are a few of tbe cases 
 in which the doctrine has been declared, and the affidavit held insntli- 
 cient, because of failure to contain the averments required by the 
 statute under which It was made: 
 
 Failure to state that the garnishee's indebtedness to the defendant 
 or the property in his possession was not exempt from garnishment. 
 Steen v. Norton, 45 Wjs. 412; Rasmussen v. McCabe, 46 Wis. 600. 
 1 N. W. 196. 
 
 An affidavit that the defendant has no property subject to execu- 
 tion in the Western district of Texas does not comply with the stat- 
 utes, requiring an affidavit that he has no property in the state. 
 Booth V. Denike, 65 Fed. 43. 
 
 Failure to state the amount of the plaintiff's claim over and above 
 all set-off. Schlitz v. Meyer, 61 Wis. 418, 21 N. W. 243; Stiekley v. 
 Little, 29 111. 315. 
 
 Failure to state whether the plaintiff's claim is founded upon con- 
 tract, express or implied, or upon judgment or decree, or to identify 
 the demand sworn to as the one sued on. Woimeister v. Manville, 
 44 Mich. 408, 6 N. W. 859; Conway v. Ionia Circuit Judge, 46 Mich. 
 28, 8 N. W. 588. 
 
 Failure to state the facts authorizing the issuance of the writ. 
 Schurlock v. Gulf, C. & S. F. Ry. Co., 77 Tex. 478. 14 S. W. 148. 
 
 For further authority upon this question, see the following deci- 
 (314) 
 
Ch. 12] PRELIMINARY PROCEDURE. § 253 
 
 What Averments are Unnecessary. 
 
 § 252. On the other hand, an afladavit containing 
 all the averments which the statute requires is suffi- 
 cient. The only jurisdictional facts are those which 
 it declares shall be alleged in the affidavit. However 
 reasonable or proper it may appear that any fact 
 should be alleged, the affidavit cannot be attacked as 
 insufficient to confer jurisdiction because of failure to 
 state that fact, unless the statute under which the pro- 
 ceedings are conducted requires that it shall be stated 
 in the affidavit. This would seem to be so almost of 
 necessity; for, if the statute could not be considered 
 as the guide of the pleader in drafting the affidavit, he 
 could have none, and no one could be certain that any 
 affidavit were sufficient till the supreme court had 
 stamped it with its approval. The statute is the only 
 tesf 
 
 Amending the Affidavit. 
 
 § 253. An affidavit conforming to the requirements 
 of the statute gives the court jurisdiction, and any 
 
 sions: Russell v. Ralph, 53 Wis. 328, 10 N. W. 518; Wells v. American 
 Exp. Co., 55 Wis. 23, 34, 11 N. W. 537; Mack v. Brown, 20 Mich. 
 335; Farwell v. Chambers, G2 Mich. 316, 28 N. W. 859; Ettelsohn v. 
 Fireman's Fund Ins. Co., 64 Mich. 331, 31 N. W. 201; Milwaukee 
 Bridge & Iron Works v. Wayne Circuit .Tudge. 73 Mich. 155, 41 N. W. 
 215; Bowers v. Continental Ins. Co., 05 Tex. 51. 
 
 SWORN COMPLAINT IN LIEU OP AFFIDAVIT: An affidavit 
 without the required averment that the defendant refuses to appl.v 
 upon the judgment the debt or property sought is fatally defective, 
 unless cured by the sworn complaint, filed ut the same time, and the 
 complaint will not cure the defect unless it avers every fact required 
 to be shown by the affidavit. Mitchell v. Bray, 106 Ind. 265, 6 N. E. 
 617. 
 
 18 Beck V. Cole, 16 Wis. 100; Everdell v. Sheboygan & Fond du 
 Lac Ry. Co., 41 Wis. 395, 401; Rasmussen v. McCabe, 43 Wis. 471;. 
 
 (315) 
 
§ 253 LAW OF GARNISHMENT. [Ch. 12 
 
 other facts, such as that the affiant is attorney or agent 
 for the plaintiff, may be stated by way of recital; ^° 
 or, if deemed proper, as a part of the affidavit, the 
 
 state Sav. Bank v. Circuit Judge of Wayne Co., 95 Mich. 100, 54 N. 
 W. G32; Nasli v. Gale, i.' Minn. 311 (Gil. 265), Carper v. Richards, 
 13 Ohio St. 219; Aultman, Miller & Co. v. Markley (Minn.) 63 N. W. 
 1078; Timm v. Stegman, 6 Wash. 13, 32 Pac. lOOi. 
 
 ILLUSTRATIVE CASES: The following are a few of the cases 
 decided under this principle: 
 
 Not necessary to state that a suit is pending against the principal 
 defendant, nor that the plaintiff's claim is due. State Sav. Bank v. 
 Circuit Judge of Wayne Co., 95 Mich. 100, 54 N. W. 632. 
 
 It is not necessary to aver that the garnishee is a corporation, or 
 has property or is doing business within the state. Rowland v. 
 Jeuel, 55 Minn. 102. 50 N. W. 581; Brauser v. New England Ins. Co., 
 21 Wis. 516. 
 
 The contrary seems to be held by the supreme court of Michigan 
 in Kttelsohn v. Fireman's Fund Ins. Co., 64 Mich. 331, 31 N. W. 201. 
 yet it can hardly be said that the court in that case intended to de- 
 part from the rule stated in the text, or, if so, it is out of the usual 
 line of decisions. 
 
 '■Dixon, C. J. * ■* * I cannot agree with the learned counsel for 
 the defendants in the construction which he seeks to establish for 
 the act of March 14, 18G4. He contends that, before the process of 
 garnishment therein provided for can lawfully issue, there must be 
 an affidavit, made and filed in the proceeding, stating that the de- 
 fendants in the principal action are indebted to the plaintiff. * * * 
 Now, while I may fully agree with the counsel as to the propriety 
 of requiring such affidavit, and even security to be given by the 
 plaintiff, before the property and effects of the defendants should 
 be thus summarily seized and sequestered in the hands of their 
 debtors, and as to the wrong and injustice whicu may be done if 
 such affidavit is not required, I still can find nothing in the act 
 
 18 Wetherwax v. Paine, 2 Mich. 555; Fremont Cultivator Co. v. 
 Fulton, 103 Ind. 393, 3 N. E. 135; First Nat. Bank v. Graham (Tex. 
 App.) 22 S. W. 1101. Compare Miller v. Chicago, M. & St. P. Ry. 
 Co., 58 Wis. 310, 17 N. W. 130; Mandel v. Peet, IS Ark. 236; Gilke- 
 son V. Knight, 71 Mo. 403; Austin v. Latham, 19 La. 88; Lithgow v. 
 Byrne, ]7 La. Ann. 8. 
 (316) 
 
Gh. 12] PEELIMINARY PROCEDUEE. § 253- 
 
 court may allow them to be supplied, nunc pro tunc,. 
 by amendment, in the same manner as it might allow 
 the papers in any cause before it to be amended; ^° or 
 the errors may be waived; ^^ but failure to state juris- 
 dictional facts will not be cured by amendment,'^ nor 
 
 wliich would justify such construction. The argument , may be a 
 good one to address to the legislature, but not to this court. The 
 language of the act is veiy plain, that, in an action in the circuit 
 court, founded upon contract, the plaintiff, by maliing and filing the 
 affidavit therein prescribed, shall be entitled to the process." Orton 
 V. Noonan, 27 Wis. 572, 577. 
 
 As to a statement of amount of plaintiffs demand, see, also, post, 
 § 392. 
 
 "The requisites of the affidavit for garnishment in that court are 
 prescribed by section 3716, Rev. St. The affidavit here conformed to 
 those requirements. This was sufficient to give the justice juris- 
 diction, without stating the amount of the plaintiffs claim against 
 the defendant, over and above all set-offs, as required in an affidavit 
 for garnishment in the circuit court." Jones v. St. Onge, 67 Wis. 
 520, 30 N. W. 927. 
 
 "This objection Is based, in part, upon the supposition that, to- 
 properly Institute a proceeding of this liind, the affidavit must nec- 
 essarily show that the person to be summoned has property of the 
 judgment debtor in his possession or under his control, or is in- 
 debted to him, and that a statement of mere belief, without more,, 
 will not answer. Ilefemng to the statute, however, we find that 
 nothing further is required to be stated. * • * Mere belief, there- 
 fore, is all that the statute contemplates, and, consequently, all that 
 courts have the right to exact. In affidavits of this kind." Burn- 
 ham V. Doolittle, 14 Neb. 214, 15 N. W. 606. 
 
 20 Slight misnomer of the garnishee held amendable. Bushnell v. 
 Allen, 48 Wis. 460, 4 N. W. 599; Hutchinson v. Trauerman, 112 Ind. 
 21, 13 N. E. 412. Compare Conway v. Ionia Circuit Judge, 46 Mich. 
 28, 8 N. W. 588. 
 
 21 Goll V. Hubbell, 61 Wis. 293, 296, 20 N. W. 674; Stevens v. Dill- 
 man, 86 111. 233; Fremont Cultivator Co. v. Fulton, 103 Ind. 393, 3 
 N. E. 135. 
 
 2 2 Schurlock v. Gulf, C. & S. F. Ry. Co., 77 Tex. 478, 14 S. W. 148; 
 Steen v. Norton, 45 Wis. 412. Compare Freer v. White, 91 Mich. 74,, 
 
 (317) 
 
§ 253 LAW OF GARNISHMENT. [Ch. 12 
 
 by a statement of them in the writ of garnishment,^* 
 nor by proof of them, when the objection is made that 
 they are not stated.^* Such defects cannot be waived 
 by the garnishee,^^ and are not cured by a general ap- 
 
 51 N. W. 807. Contra, Sanb. & B. Ann. St. Wis. § 2731a; Hutchinson 
 V. Ti-auerman, 112 Ind. 21. 13 N. E. 412; Burkett v. Bowen, 118 
 Ind. 378, 21 N. B. 38. 
 
 AMENDMENTS IN FEDERAL COURTS: Held, tliat the affidavit 
 may be amended in the United States courts, though not allowable 
 by the courts of the state where the action is ti-ied. Booth v. 
 Denike, 65 Fed. 43. 
 
 2 3 Ettelsohn v. Fireman's Fund Ins. Co., 64 Mich. 331, 31 N. W. 201. 
 
 2 4 Milwaukee Bridge & Iron Works v. Wayne County Circuit 
 Judge, 73 Mich. 155, 41 N. W. 215. 
 
 PROOF OF SWEARING TO AFFIDAVIT: Upon an issue of fact 
 as to whether the affidavit was sworn to, held, that the finding of 
 the trial court is conclusive. Field v. Malone, 102 Ind. 251, 1 N. E. 
 507. 
 
 2 5 Conway v. Ionia Circuit Judge, 46 Mich. 28, 8 N. W. 588; Steen 
 V. Norton, 45 Wis. 412; Bowere v. Continental Ins. Co., 65 Tex. 52. 
 
 THE GARNISHEE MAY WAIVE ANY DEFECT IN THE AF- 
 FIDAVIT; "If personal jurisdiction is acquired over the garnishee, 
 but not over the defendant, the plaintiff must still proceed in rem 
 against the effects in the hands of the garnishee. But, when the 
 court already has jurisdiction of the person of the defendant, the 
 proceedings against the garnishee are much in the nature of pro- 
 ceedings to bring in additional parties defendant; and, in such a 
 case, when the garnishee is brought in, the action is in personam as 
 to all the parties, and takes on a double aspect,— that of an action 
 against the defendant to recover judgment for the debt, and that 
 of a sort of a creditors' bill against him and the garnishee, to reach 
 assets in the hands of the garnishee, to be applied in satisfaction of 
 the judgment. In such a case, the garnishee affidavit and summons 
 are the process by which personal jurisdiction is obtained over the 
 additional party, the garnishee; and, as to himself, he may waive 
 such process by voluntarily appearing. It is true that the garnishee 
 cannot waive the rights of the defendant. The defendant, as well as 
 the garnishee, may object to the failure to file a proper affidavit; and 
 the defendant is, in certain cases, entitled to notice of the bringing in 
 (318) 
 
Ch. 12] PKELIMINAKY PROlEDUKE. § 254 
 
 pearance in the action by the principal defendant with- 
 out raising the objection.^" 
 
 Proper Phrasing of Essential Averments. 
 
 % 25i. Generally, an affidavit in the exact words of 
 the statute will be sufficient, if perjury can be assigned 
 upon it," and it is always policy to follow the statute 
 as nearly verbatim as is possible, and at the same time 
 keep the language of the affidavit direct and positive; 
 but the substance is all that is necessary, and the court 
 will judge whether the substantial requirements of the 
 statute are found in the affidavit.^' 
 
 of the garnishee, and of the time set for the disclosure. But, if per- 
 sonal jurisdiction has been obtained over the defendant, none of these 
 steps are jurisdictional, as to him. On the contrary, the failure to take 
 tliose steps properly is, as to him, a mere irregularity, occurriug after 
 jurisdiction has been once acquired, and does not render void a judg- 
 ment charging the garnishee; but such judgment is binding on all the 
 parties until set aside." Aultman, Miller & Co. v. Markley (Minn.) 63 
 N. W. 1078. 
 
 2 6 See ante, §§ 230-232. 
 
 27 Russell v. Ralph, 53 Wis. 328, 10 N. W. 518; Hinkley v. St. An- 
 thony Falls Water-Power Co., 9 Minn. 55 (Gil. 44). 
 
 2 8 The statutory clause, "has good reason to believe," is substan- 
 tially contained in the words "verily believes," the latter being the 
 stronger. Russell v. Ralph, 53 Wis. 328, 10 N. W. 518. 
 
 "Has good reason to believe and does believe" is not contained in 
 the statement of belief alone. There must be a reason for the belief, 
 though not stated. Prince v. Heenan, 5 Minn. 347 (Gil. 279). 
 
 The statute requiring the statement of a fact is not complied with 
 by a statement of belief. Greene v. Tripp, 11 R. I. 424. 
 
 An affidavit that the affiant believes the statements of the bill to be 
 true held insufficient, though the garnishee answered, admitting the 
 facts stated on belief. Patterson v. Bowie, 1 Cranch, C. C. 425, Fed. 
 Cas. No. 10,825. 
 
 An affidavit that the attorney "has reason to believe" that his client 
 "will apprehend the loss" of his debt, etc., is insufficient. Knox v. 
 Summers, 66 Ga. 256. 
 
 (319) 
 
§ 256 LAW OF GARNISHMENT. [Ch. 12 
 
 Time of Swearing to and Filing the Affidavit. 
 
 § 255. Not only must the affidavit be made in com- 
 pliance with the statute, but it must be filed before 
 the writ issues. Till the proper affidavit is filed, the 
 court has no jurisdiction to issue the writ.^° When 
 the statute does not require the affidavit to be made at 
 the time of or after commencement of the suit, but pro- 
 vides that it shall be filed vs^ith the clerk "at the time 
 of or after the commencement of suit," an affidavit 
 sworn to before the ori^nal suit is commenced, but 
 on the same day, and stating that a suit is about to be 
 commenced, is sufficient to give the court jurisdic- 
 tion.'" 
 
 The Summons or Writ of Garnislimeiit. 
 
 Issues of Course, Pursiutnt to Affidavit. 
 
 § 256. The proper affidavit being filed, the writ is- 
 sues of course. There is nothing to find except that 
 the affidavit has been filed as required by statute. The 
 duty to issue the writ is ministerial, not judicial." 
 
 29 Black V. Brisbin, 3 Minn. 300 (Gil. 253), 74 Am. Dec. 7G2; HinU- 
 ley T. St. Anthony I(\ills Water-Power Co., 9 Minn. 55 (Gil. 44, 49); 
 Steen v. Norton, 45 Wis. 412; Wells v. American Exp. Co., 55 Wis. 23, 
 11 N. W. 537; State v. Duncan, 37 Neb. 631, 56 N. W. 214; Garland v. 
 SpeilinjE; (N. M.) 30 Pae. 925; Louisville, N. A. & C. Ry. Co. v. Lake, 
 5 Ind. App. 450, 32 N. E. 590; Bryant v. Bank of California (Gal.) 7 
 Pac. 128. 
 
 ENTERING AFFIDAVIT ON RECORD: The affidavit need not 
 be transcribed on the record, unless the statute requires it. Carper 
 V. Richards, 13 Ohio St. 219. 
 
 so Millard v. Lenawee Circuit Judge (Mich.) 64 N. W. 1046. 
 
 SI Hinkley v. St. Anthony Palls Water-Power Co., 9 Minn. 55 (Gil. 
 44); Burnham v. Doolittle, 14 Neb. 214, 15 N. W. 606. 
 
 ATTACHMENT ISSUES FIRST: In garnishment under attach- 
 (320) 
 
Ch. 12] PRELIMINARY PROCEDURE. § 257 
 
 When issued, it commands the officer to require the 
 garnishee to impound the debt or property attached, 
 and to appear and answer concerning the allegations 
 of the affidavit, and nothing else/^ 
 
 Special Notice. 
 
 § 257. When the statute requires the officer serv- 
 ing the writ to serve with it, upon the garnishee, a 
 written notice of the property attached, nothing is at- 
 tached which is not stated in the written notice. Al- 
 though a notice in general terms is sufficient, the 
 knowledge of the garnishee that the property of the 
 defendant firm is sought to be reached will not aid a 
 notice stating only that the property of one of the de- 
 fendants is attached." When there is no provision of 
 statute requiring a special notice to be served upon 
 the garnishee, stating what property is sought to be 
 reached, a plain writ, alone, will ordinarily answer 
 every purpose, and attach in the garnishee's hands any 
 property or debt belonging to the defendant.'* When 
 it is sought to attach property not apparently belong- 
 ing to the defendant, a notice to that effect should ac- 
 cojnpanv the summons.'^ 
 
 ment, the attachment must issue before the garnishment. Donald 
 V. Nelson, 95 Ala. Ill, 10 South. 317. 
 
 3 2 Mack V. Brown, 20 Mich. 335; Botsford v. Simmons, 32 Mich. 
 352; Nash v. Gale, 2 Minn. 310 (Gil. 265). But see Prince v. Heenan, 
 5 Minn. 347 (Gil. 279). 
 
 3 3 Hayden v. National Bank of State of New York, 130 N. Y. 146, 
 29 N. E. 143. Compare Carter v. Koshland, 12 Or. 492, 8 Pac. 556. 
 
 3-1 Emery v. Seavey, 148 Mass. 566, 20 N. B. 177; Purves v. Lex 
 (Pa. Sup.) 9 Atl. 167. 
 
 Held, that such notice is proper when specific property is sought to 
 be attached, but unnecessary to the attachment of indebtedness, be- 
 cause impracticable. Bell t. Wood, 87 Ky. 56, 7 S. W. 550. 
 
 so First Nat. Bank v. Leppel, 9 Colo. 594, 13 Pac. 776. 
 
 LAW GARNISH. 21 (^21) 
 
§ 258 LAW OF GARNISHMENT. [Ch. 12 
 
 The Writ is a Process, and must Possess Process EJements. 
 
 § 258. The garnishment writ serves both as a sum- 
 mons and as an attachment,'"^ is a process and not a 
 pleading," should run in the name of the people of the 
 state, ^' be tested of and returnable to the court hav- 
 ing jurisdiction of the action against the principal de- 
 fendant,^^ be issued and signed by its clerk,*" and bear 
 
 3« Pan] V. Bird, 25 N. J. Law, 559. 
 
 3T Middleton Paper Co. v. Rock River Paper Co., 19 I^ed. 252; 
 Hinlcley v. St. Antliony Falls Water-Power Co., 9 Minn. 55 (Gil. 44); 
 Boyd V. Chesapeake & O. C. Co., 17 Md. 195, 79 Am. Dec. 646; Curry 
 V. Woodward, 50 Ala. 258; Lady Ensley Furnace Co. v. Rogan, 95 
 Ala. 594, 11 South. 188; Moore v. Wayne Circuit Judge, 55 Mich. 84, 
 20 N. W. 801. 
 
 "It occurred to me, at first, that we might treat this order to the 
 garnishee, not as process in the legal sense, but as merely ancillary 
 to the attachment, designed only to warn the garnishee, and tie up the 
 effects in his hands, and not to be tested by the strict rules governing 
 process constituting the basis of judicial proceedings. But this theory 
 will not bear reflection. As to the garnishee it is the only process. 
 Against him, it is the sole basis of judgment. The garnishment is a 
 suit against him, — process in the legal sense, not pleading, and subject 
 to a motion to quash for inherent defects in the order. Upon it may 
 rest important litigation and trial of issue between the garnishee and 
 the plaintiff." Coda v. Thompson, 39 W. Va. 67, 19 S. E. 54b. 
 
 Hinkley v. St. Anthony Falls Water-Power Co., 9 Minn. 55 (Gil. 
 44). 
 
 3 8 CONSTITUTIONAL LAW: When the constitution directs that 
 all process shall run in the name of the people of the state, the legis- 
 lature has no authority to confer jurisdiction by garnishment process 
 which does not. Manville v. Battle Mountain Smelting Co., 17 Fed. 
 126, 5 McCrary, 328. 
 
 3 9 Garland v. McKittrick, 52 Wis. 204, 9 N. W. 160; First Nat. 
 Bank of Gadsden v. Dunn (Ala.) 14 South. 559; West v. Harvey, 81 
 
 *» Middleton Paper Co. v. Rock River Paper Co., 19 Fed. 2.12. 
 Held, that a justice of the peace may issue garnishment in aid of 
 suits in the circuit court. Thompson v. Carper, 11 Humph. (Tenn.) 
 
 542. 
 
 (322) 
 
Ch. 12J PRELIMINARY PROCEDURE. § 258 
 
 its oificial seal.*^ Under some of the statutes, no writ 
 is required, but a summons may be issued by the plain- 
 tiff's attorney,*- or the officer who serves the writ in 
 the main action; *' but a writ or summons issued by a 
 person, officer, or court not authorized by law, is ab- 
 solutely void.** 
 
 Ga. 711, 8 S. B. 449; Toledo, W. & W. Ry. Co. v. Reynolds, 72 111. 
 487; Hughs V. Ft. Dearborn Nat. Bank, 47 111. App. 567: Smith v. 
 Dickson, 58 Iowa, 444, 10 N. W. 850; Gould v. Meyer, 36 Ala. 565; 
 New York, L. E. & W. Ry. Co. v. Cookson, 45 N. J. Law, 302. 
 
 41 Williams v. Van Metre, 19 111. 293; Middleton Paper Co. v. Rock 
 River Taper Co., 19 Fed. 252. 
 
 *2 Hiukley v. St. Anthony Falls Water-Power Co, 9 Minn. 55 (Gil. 
 44). 
 
 *3 Steen v. Norton, 45 Wis. 412, 415; Manville v. Battle Mountain 
 Smelting Co., 17 Fed. 126, 5 McCrary, 232; First Nat. Bank of Nash- 
 ville V. First Nat. Bank of Tupelo (Miss.) 16 South. 904. 
 
 "The clerk of this court issues the writ of attachment,— the pro- 
 cess of this court. * ■<■ * There is no provision of the Revised Stat- 
 utes nor of the Iowa Code requiring either of these notices to proceed 
 from the clerk. * * * And since the notice is to be given by the 
 officer, and as a part of the levy he is making, why require that the 
 officer shall have this notice signed by the clerk, and bear the teste 
 of the chief justice? These considerations, as well as the uniform 
 practice heretofore obtaining in this court, and which is based on the 
 uniform practice of the state courts of Iowa, justify the conclusion 
 that the notice of garnishment which is given by the officer who is 
 executing a writ of attachment is not a 'process,' within the mean- 
 ing of section 911, Rev. St.; and that the notice of garnishment herein 
 was not required to bear the teste of the chief justice of the United 
 States, or the seal of this court, and same was properly signed by the 
 marshal." Wile v. Cohn, 63 Fed. 759. 
 
 4 4 Middleton Paper Co. v. Rock River Paper Co., 19 Fed. 252; 
 Stephenson v. Campbell, 30 Ga. 159; First Nat. Bank of Gadsden v. 
 Dunn (Ala.) 14 South. 559. Compare Clarke v. Gaither, 6 Ala. 139; 
 Donald v. Nelson, 95 Ala. Ill, 10 South. 317. 
 
 (323) 
 
§ 260 LAW OF GARNISHMENT. [Ch. 12 
 
 Entitling — One Summons for Two Suits. 
 
 § 259. As the garnishment is ancillary to the main 
 action,*^ it has been held that the writ should be en- 
 titled therein.*' But, on the other hand, it has been 
 held that one summons may serve as notice in differ- 
 ent suits.*^ 
 
 Executors, Corporations, etc. — How Named as Garnishees. 
 
 § 260. The summons should be directed to the gar- 
 nishee, and in the capacity in which it is expected to 
 charge him; for judgment can be rendered only 
 against the party named in the summons.*^ Thus, if 
 it is intended to charge a corporation as garnishee, and 
 the summons is directed to the officer on whom the 
 service is made, the court will acquire no jurisdiction 
 over the corporation, and has no power to render judg- 
 ment against it as garnishee. The summons should 
 be directed to the garnishee by its corporate name.*' 
 
 4 5 See ante, § 2. 
 
 4M20bfion V. Sliipman, 28 Ala. 48S. 
 
 4 7 Quarles v. Porter, 12 Mo. 76. 
 
 *8 Pratt V. Sanborn, 63 N. H. 11.5. 
 
 4 Claflin v. Iowa City, 12 Iowa, 284; Mooar t. Walker, 46 Iowa, 
 164; Union Bank of Rochester v. Union Banli of Sandusky, 6 Oliio 
 St. 254; Daniels v. Meinhard, 53 Ga. 359; Varnell v. Speer, 55 Ga. 
 132; Sun Mut. Ins. Co. v. Seeligson, 59 Tex. 3; Insurance Co. of 
 North America v. Friedman, 74 Tex. 56, 11 S. W. 1046; First Nat. 
 Bank of Montague v. Robertson, 3 Tex. Civ. App. 150, 22 S. W. 100. 
 
 But it is sufficient to state garnishee's name. It need not show 
 whether it is a foreign or domestic corporation. That appears by 
 the affidavit. Williams v. International Grain & Stock Board, 90 
 Mich. 80, 57 N. W. 1089. 
 
 The summons need not show whetner the garnishee is a corpora- 
 tion or a partnership. United States Express Co. v. Bedbury, 34 
 111. 459. 
 
 But when one was described in a summons as agent for several 
 companies, and commanded to appear and answer "what said com- 
 (324) 
 
Ch. 12] PRELIMINARY PROCEDURE. § 261 
 
 Likewise, service of garnishment upon one as an indi- 
 vidual vi^ill not bind property held by him as executor ; 
 and no judgment could be rendered against him in 
 that capacity, though he appear and disclose liability 
 
 as such/" 
 
 AU Obligees must be Named in, to Reach Jaint Liability. 
 
 § 261. If it is intended to reach property in the 
 joint possession of several persons, or debts due from 
 them jointly, all should be named in the summons. If 
 this is not done, and the garnishees are liable jointly 
 only, the suit must fail for the nonjoinder," unless the 
 
 panies named above are mdebted to said defendant, or what prop- 
 erty or eflfects you have in your hands belonging to the defendant," 
 held, that one of said companies, having appeared and answered, 
 and offered to pay the money into court, had waived the defect in 
 the summons, and could not afterwards urge it. Plournoy v. Rut- 
 ledge, 73 Ga. 735. See, also. Moody v. Alter, 12 Heisk. (Tenn.) 142. 
 Without such waiver such a summons would be no garnishment of 
 the companies. Voorhies v. Denver Hardware Co., 4 Colo. App. 428, 
 36 Pac. 65. 
 
 60 Tillinghast v. Johnson, 5 Ala. 514. 
 
 When the addition to the name of the garnishee in the summons 
 may be treated as surplusage, he may be charged as an individual. 
 Hewitt V. Wheeler, 23 Conn. 284. 
 
 If an administrator had become so personally obligated that the 
 defendant could sue him in his individual capacity, he may be held 
 as garnishee in the same manner. Hoyt v. Christie, 51 Vt. 48. 
 
 51 Wilson V. Albright, 2 G. Greene (Iowa) 125; Bean v. Barney, 10 
 Iowa, 498; Ellicott v. Smith, 2 Cranch, C. C. 543, Fed. Cas. No. 
 4,387; Wellover v. Soule, 30 Mich. 481; Jones v. Langhorne, 19 Colo. 
 206, 34 Pac. 997; Pettes v. Spalding, 21 Vt. 66; Knapp v. Levanway, 
 27 Vt. 298; Rix v. Elliot, 1 N. H. 184; Hudson v. Hunt, 5 N. H. 538; 
 Atkins V. Prescott, 10 N. H. 120; Frizzle v. Willard, 37 Ark. 478; Hus- 
 kill V. Johnson, 24 Ga. 625; O'Connell v. Ackerman, 62 Md. 337. 
 Contra, Brealsford v. Meade, 1 Yeates (Pa.) 488. 
 
 Held, that partners may be summoned by process addressed to 
 them by their firm name. Bushnell v. Allen, 48 Wis. 460, 4 N. W. 
 
 (325) 
 
§ 262 LAW OF GAENISHMEKT. [Ch. 12 
 
 objection is waived by not pleading it in abatement. ^^ 
 Moreover, it has been held that, if carried to judgment 
 without objection being made, the paid judgment will 
 afford the garnishee and his co-obligee no protection 
 when afterwards sued jointly by the defendant." 
 But, if all the principals are summoned as garnishees, 
 and those not named in the process were sureties 
 merely, the proceedings are always held valid." 
 
 Joint and Several Obligees as Oamishees. 
 
 § 262. When several nersons are iointly and sev- 
 erally liable, although any one of them may be charged 
 for the whole liability, on a process directed to him 
 alone, and payment of the judgment thus rendered will 
 
 599; United States Express Co. v. Bedbury, 34 111. 459. Contra, Shef- 
 field V. Barber, 14 R. I. 263. At least, when part of them are nonresi- 
 dents of the state. Peck v. Barnum, 24 Vt. 75. The process cannot 
 be amended by adding the omitted names after return. Knapp v. Lev- 
 anway, 27 Vt. 298. 
 
 The garnishees may be described by their firm name or individual 
 names, at the option of the plaintiff, when the statute authorizes suits 
 against partnerships by their firm name. Whitman v. Keith, 18 Ohio 
 St. 134. 
 
 5 2 Sabin v. Cooper, 15 Gray, 532. 
 
 The rule that nonjoinder must be pleaded, to avail, does not apply 
 to garnishment proceedings, in vyhich the garnishee cannot know what 
 the plaintiff seeks to reach until issue is taken on the answer made, 
 after which the garnishee has no opportunity to plead. Jones v. Lang- 
 horne, 19 Colo. 2o6, 34 Pac. 997. Compai'e Field v. Malone, 102 Ind. 
 251, 1 N. E. 507. 
 
 63 Wetherwax v. Paine, 2 Mich. 555, 557; Hirth v. Pfeifle, 42 Mich. 
 31, 3 N. W. 239. Contra, Cook v. Field, 3 Ala. 53, 36 Am. Dec. 430; 
 Hawley v. Atherton, 39 Conn. 309. Compare Bushnell v. Allen, 48 
 Wis. 460, 4 N. W. 599; Hutchinson v. Eddy, 29 Me. 91; gangster v. 
 Butt, 17 Ind. 354. 
 
 " Jones V. St. Onge,67 Wis. 520, 30 N. W. 927; Noble v. Thompson 
 Oil Co., 69 Pa. St. 409; Bostwick v. Bryant, 113 Ind. 448, 16 N. B. 378. 
 (326) 
 
Ch. 12] PRELIMINARY PROCEDURE. § 263 
 
 protect all," yet any one of tJiose not summoned may 
 pay the debt, or deliver the property, after the garnish- 
 ment summons is served, and such payment will dis- 
 charge the garnishee/" 
 
 Garnishees Severally Ldable, Named as Joint. 
 
 § 263. On the other hand, several persons cannot 
 be held as joint garnishees, unless their liability to the 
 defendant is joint; and this is so whether it is sought 
 to charge them as indebted to the defendant, or in pos- 
 session of his property." But this objection may be 
 waived by the garnishee.^' 
 
 •"Travis v. Tartt, 8 Ala. 574; Macomlber v. Wright, 35 Me. 150; 
 Speali V. Kinsey, 17 Tex. 301; Ladd v. Baiter, 26 N. H. 76, .37 Am. 
 Dec. 355. 
 
 5" .Jewett V. Bacon, 6 Mass. 60; Hathway v. Russell, 16 Mass. 473; 
 Sabin v. Cooper, 81 Mass. 532; Ladd v. Baker, 26 N. H. 7G, .57 Am. 
 Dec. 355; Treadwell v. Brown, 41 N. H. 12. 
 
 5 7 Ball V. Youns, 52 Mich. 476, 18 N. W. 225; Lyon v. Ballentine, 63 
 Mich. 97, 103, 29 N. W. 837; Black v. Dawson, 82 Mich. 485, 491, 46 
 N. W. 793; Thorn v. Woodruff, 5 Ark. 55; Bender v. Bridge, 18 Ark. 
 291. 
 
 CREDITS AND DEBTS PART SEVERAL AND PART .JOINT: 
 A summons to answer for indebtedness to the defendants means a 
 Joint liability to all, and is ineffectual as an attachment of a debt due 
 to a part of the defendants. McBride v. Protection Ins. Co., 22 Conn. 
 248. 
 
 A writ commanding A., B., and C. to appear and answer what they, 
 or either of them, are indebted to the defendant, would be sufficient 
 to reach either joint or several liability. Treadway v. Andrews, 20 
 Conn. 384. 
 
 "When two or more are summoned as trustees, according to the 
 statutory form, with nothing in the writ added to indicate in which 
 capacity they are required to disclose, whether as to their joint or 
 their several liability, they are before the court in their joint as well 
 
 B8 Goll v. Hubbell, 61 Wis. 293, 20 N. W. 674, and 21 N. W. 288; 
 Curry v. Woodward, 50 Ala. 258, 53 Ala. 371. 
 
 (327) 
 
§ 265 LAW OF GARNISHMENT. [Ch. 12 
 
 VHien Returnable. 
 
 § 264. The summons must be made returnable, and 
 the answer of the garnishee directed to be made, in the 
 manner and within the time during which the statute 
 requires writs to be made returnable, and if directed to 
 any other time the court will acquire no jurisdiction.'^* 
 
 Must he in Writing and Contain Statutory Clauses. 
 
 § 265. The writ or summons must be in writing,"" 
 and must contain the provisions and clauses, and be 
 substantially in the form, prescribed by the statute."' 
 
 as their several capacity, and are chargeable for all their indebted- 
 ness to the principal debtor, joint as well as several, If all the joint 
 debtors are before the court as trustees." Lamson v. Bradley, 42 Vt. 
 165. 
 
 When partners, as such, are made garnishees, only partnership ob- 
 ligations are attached. Coverly v. Braynard, 28 Vt. 738. 
 
 When a number of persons are named in a writ as trustees, it will 
 be presumed that they are proceeded against severally, unless they 
 are declared against jointly. Ingraham v. Olcock, 14 N. H. 243. 
 
 50 McDonald v. Vinette, 58 Wis. 619, 17 N. W. 319; Edler v. Hasche, 
 67 Wis. 653, 31 N. W. 57; Padden v. Moore, 58 Iowa, 703, 12 N. W. 
 724; Coda v. Thompson, 39 W. Va. 67, 19 S. B. 548; Houston v. 
 Porter, 10 Ired. (N. C.) 174. Compare Miller v. Whitescarver, 23 W. 
 Va. 10; Wile v. Cohn, 63 Fed. 759; Manville v. Battle Mountain 
 Smelting Co., 17 Fed. 126; 5 McCrary, 232; Walker v. Tewksbury, 
 67 Me. 496; Burt v. Wayne Circuit Judge, 82 Mich. 251, 46 N. W. 380. 
 
 But held immaterial that the summons did not mention any time 
 for making answer. Hearn v. Adamson, 64 Ga. 608. 
 
 When the day of the week and the day of the month mentioned 
 as the return day do not agree, the writ is not bad. The month day 
 controls. State Savings Bank v. Circuit Judge of Wayne Co., 95 
 Mich. 100, 54 N. W. 632. 
 
 «o Mosher v. Banking House, 6 Mo. App. 598. 
 
 "The statute requires written notice, and there Is no other means 
 by which a person can be lawfully summoned and required to an- 
 swer as garnishee. The written notice is the original process by 
 
 61 See following page. 
 (328) 
 
Ch. 12] PHELIMINAEY PROCEDUEE. § 266 
 
 Naming and Misnaming the Parties. 
 
 § 266. A misnomer, in the garnishment summons, 
 of the plaintiff or the garnishee is no more fatal in this 
 
 which the garnishee is brought before the court, and the only author- 
 ity which the officer or judgment creditor has for demanding his 
 appearance and a disclosure of his financial and property relation to 
 the Judgment debtor. Hence, a judgment without service of written 
 notice is a nullity. * * * The issuance and service of the scire 
 facias did not cure that defect, or have any effect upon it; nor did 
 the failure of the petitioner to defend the scire facias change the 
 case already made." Ilhnois Cent. Ry. Co. v. Brooks, 90 Tenn. 161, 
 IG S. W. 77. 
 
 31 Acme Lumber Co. v. Francis Vandergrift Shoe Co., 70 Miss. 91, 
 11 South. 657. 
 
 AMOUNT OF THE PLAINTIFF'S CLAIM: Held, that the sum- 
 mons must state the amount of the demand against the defendant. 
 Weaver v. Russell, 18 Ohio, 497. 
 
 SAME— STATUTORY FORM: The statute declared what should 
 be stated in the writ of garnishment, and also, that "the following 
 form of writ may be used," and proceeded to give a form setting 
 forth the amount of the plaintiff's demand against the principal de- 
 fendant, which the preceding section did not require to be stated in 
 the writ. Held, that the form is permissive, not mandatory, and that 
 a writ without that statement is good. Curtis v. He arietta Nat. 
 Bank, 78 Tex. 260, 14 S. W. 614. Being good without, it was not 
 error for the court to refuse to allow the clause to be inserted by 
 amendment. Curtis v. Ford, 78 Tex. 262, 14 S. W. 614. 
 
 THE CONTENTS OF THE AFFIDAVIT: It need not recite the 
 contents of the affidavit, the statute not requiring it, nor state that 
 the garnishee is a foreign corporation. Williams v. International 
 Grain & Stock Board, 99 Mich. 80, 57 N. W. 1089. 
 
 ATTACHMENT CLAUSE: Where the statute provides for gar- 
 nishment auxiliary under a writ of attachment, the failure of the 
 clerk to insert the attachment clause in the alias writ for garnish- 
 ment is an irregularity, but does not render the writ void. C. C. 
 Kelly Bankmg Co. v. J. M. Robinson-Norton Co., 71 Miss. 341, 13 
 South. 932. 
 
 A statute required notice to be appended to garnishment summons, 
 specifying the particular property attached. "All the debts, prop- 
 erty," etc., of defendant in the garnishee's hands, held sufficient de- 
 
 (329) 
 
■§ 266 LAW OP GARNISHMENT. [Ch. 12 
 
 than in any other writ, and may be in the same manner 
 «urecl; '^ but the writ must correctly state the name of 
 the principal defendant, both his Christian and his 
 middle name, as well as his surname, and, failing in 
 this, the garnishee is totally unaffected by the service 
 of the garnishment summons, and cannot be charged 
 if he afterwards pays or delivers the debt or property 
 to the principal defendant before he has actual knowl- 
 edge of the identity of the principal defendant and the 
 person named in the process.'^ Such a process is also 
 
 scription. Carter v. Koshland. 12 Or. 492, 8 Pac. 556. Compare 
 O'Brien v. Mechanics' & Tiaders' Fire Ins. Co., 56 N. Y. 52; Neal 
 V. Cook, 10 N. J. Law, 337. 
 
 6 2 Cain V. Rockwell, 132 Mass. 193. 
 
 The failure of tlie clerk to name in the writ the garnishees to be 
 summoned under a writ of attachment, issued on proper application, 
 will not defeat proceedings against garnishees properly summoned 
 and named in the application. Semmes v. Patterson, 65 Miss. 6, 3 
 South. 35. 
 
 The name of tlie garnishee may be inserted in the writ after the 
 attachment of property, but before service on the principal defend- 
 ant. Chapman v. Mears, 56 Vt. 389. 
 
 When a writ was served on a garnishee not named therein, and he 
 afterwards appeared personally in court, and waived any defect in 
 the writ or service, and his name was inserted, held, that he was 
 properly discharged, on the motion of a subsequent attaching cred- 
 itor. Pratt V. Sanborn, 63 N. H. 115; Nelson v. Sanborn, 64 N. H. 
 310, 9 Atl. 721. 
 
 The insertion of the name of the plaintiff's attorney in the gar- 
 nishment writ where the garnishee's name should be, and thus pur- 
 porting to warn and summon such attorney to answer as garnishee, 
 is not a fatal defect, for which the proceedings may be quashed. It 
 appearing upon the face of the summons to be a clerical error, the 
 court should allow the error to be amended. Millard v. Lenawee 
 Circuit Judge (Mich.) 64 N. W. 1046. 
 
 03 Terry v. Sisson, 125 Mass. 560; German Nat. Bank of Denver 
 V. National State Bank of Boulder (Colo. App.) 39 Pac. 71. 
 
 "THE MIDDLE NAME, or the middle letter, Is as much a part of 
 (330) 
 
Ch. 12] PKEUMINAEY PKOCEDUBE. , § 266 
 
 fatally defective as an attacliment upon the debt or 
 property in the hands of the garnishee, as against sub- 
 sequent purchasers in good faith for value, before judg- 
 ment against the garnishee, and who appear as inter- 
 vening claimants, and claim the property as against 
 the plaintiff; and the process cannot be subsequently 
 •amended so as to cut off the rights of third persons ac- 
 quired in the meantime."* 
 
 a man's name, in this part of the present century as either his Chris- 
 tian or his surname. The result is that the more modern autliori- 
 ties in the Eastern and commercial states have adjudged that the 
 middle letter, or the middle name, is as essential to the accuracy of 
 the writ as either the Christian or the surname. It would seem 
 that when the question arises as to the rights to be secured by a 
 process of attachment served on a third person whose position has 
 changed prior to judgment, it may very properly be held that a mis- 
 take in the middle letter is such a legal misdescription as will avoid 
 the process in favor of the one whose position is altered. * * * 
 There was no showing in the present case that the bank had any 
 knowledge whatever that their depositor was the one sought to be 
 reached by the process at the time they paid out the money on his 
 checks. Confining the decision to this particular class of cases, it 
 is held that a garnishee is totally unaffected by any notice which 
 may be served upon him, unless it properly runs with an accurate 
 description against the individual to whom he may be indebted, un- 
 less it be in those cases where the proof may show that the gar- 
 nishee had actual knowledge of +ne identity of the debtor and the 
 person named in the process." German Nat. Bank of Denver y. 
 National State Bank, 3 Colo. App. 17, 31 Pac. 122, and 39 Pac. 71. 
 
 The garnishee bank having deposits in the names James Shay and 
 James Shea, the questions whether Shay and Shea are different 
 names, and whether the garnishee knew or ought to have known 
 that the writ served upon it naming one was intended to garnish the 
 account of the other, are questions of fact, and the burden of proof 
 to charge the garnishee is on the plaintiff. White v. Springfield 
 Inst, for Savings, 134 Mass. 232. 
 
 61 Moore v. Graham, 58 Mich. 25, 24 *N. W. 670; Allison v. Thomas, 
 72 Cal. 562, 14 Pac. 309. Compare Button v. Simmons, 65 Me. 583, 
 20 Am. Rep. 929; McBride v. Protection Ins. Co., 22 Conn. 248, 257; 
 
 (331) 
 
§ 267 _ LAW OF GARNISHMENT. [Ch. 12 
 
 Errors and Irregularities — How Taken Advantage of and Cured. 
 
 § 267. But, as to all persons who have not been 
 misled to their injury by the misnomer of the defend- 
 ant, the error may be corrected by amendment, at any 
 time, nunc pro tunc.^^ Garnishment summons, being 
 a process, cannot be demurred to.°' The garnishee 
 should file a plea in abatement of the writ, on the 
 ground of the defects, or move to quash; " but, unless 
 the writ is so defective that the court has acquired no 
 jurisdiction, the error may be cured by amendment 
 when the objection is made,"* and the amendment will 
 relate back to the date of service,"" except as to rights 
 
 Hutchinson's Appeal, 92 Pa. St. 186. But see Vermilyea v. Rob- 
 erts, 103 Mass. 410. 
 
 65 West V. Piatt, 116 Mass. 308; Vermilyea v. Roberts, 103 Mass. 
 410; Wight v. Hale, 56 Mass. 486, 48 Am. Dec. 677. 
 
 6 6 Curry v. Woodward, 50 Ala. 258. 
 
 In this case persons severally liable were joined in one writ. Held, 
 that a plea in abatement should not be sustained. 
 
 6 7 Curry v. Woodward, 50 Ala. 258; Donald v. Nelson, 95 Ala. Ill, 
 10 South. 317; Stevens v. Dillman, 86 111. 233; Mansur v. Coffin, 54 
 Me. 314; Coda v. Thompson, 39 ^V. Va. 67, 19 S. E. 548. 
 
 "The power of quashing writs is limited to proceedings that are 
 irregular, defective, or improper. Crawford v. Stewart, 38 Pa. St. 34. 
 If it appears on the face of the record that the proceedings are void, or 
 grossly irregular, or where it is clearly shown that a valid cause of 
 action in this form does not exist, the court may, on motion of the de- 
 fendant, or of the garnishees in his behalf, quash the writ. No such 
 case is presented here." Steel v. Goodwin, 113 Pa. St. 288, 6 Atl. 49. 
 
 6 8 Wellover v. Soule, 30 Mich. 481; BushneU v. Allen, 48 Wis. 460, 
 461, 4 N. W. 599; Nash v. Brophy, 13 Mete. (Mass.) 476; West v. 
 Piatt, 116 Mass. 308; Vermilyea v. Roberts, 103 Mass. 410. 
 
 A writ against one as an individual cannot be amended, on his dis- 
 closure of Indebtedness as member of a firm, so as to hold the debt 
 due from the firm. Knapp v. Levanway, 27 Vt. 298. 
 
 6 9 Sullivan v. Langley, 128 Mass. 285; Peabody v. Maguire, 79 Me. 
 572, 12 Atl. 630. 
 (332) 
 
Ch. 12] PRELIMINARY PROCEDURE. § 268 
 
 acquired in the meantime,''"' and the appearance of 
 the garnishee, and answer without objection, will be 
 deemed a waiver of them." But, of course, an abso- 
 lutely y.oid writ cannot be made good by amendment.'^ 
 
 Service of Garnishment Summons. 
 
 Must be Made within Proper Time and Territory by Proper Officer. 
 
 § 268. The other proceedings being valid, due serv- 
 ice of summons upon the garnishee is the commence- 
 ment of a suit in the name of the plaintiff against 
 him," and operates as an attachment, in his hands, of 
 the property or debt alleged in the afifidavit, and in 
 respect of which he is summoned, ulacing it, substan- 
 tially, in custodia legis.'*' The garnishment summons 
 must be served by some person authorized by law. 
 usually a constable or sheriff," and must be served the 
 
 7 Moore V. Graham, 58 Mich. 25, 24 N. W. 670. 
 
 71 Hinkley v. St. Anthony Falls Water-Power Co., 9 Minn. 55 (Gil. 
 44); Howland v. Jeuel, 55 Minn. 102, 56 N. W. 581; Wellover v. Soule. 
 30 Mich. 481; Wile v. Cohn, 63 Fed. 759; Flournoy v. Rutledge, 7;! 
 Ga. 735; Phelps v. Reeder, 39 111. 172; National Bank of Commerce 
 of Chicago V. Titsworth, 73 III. 591; Woodfolk v. Whitworth, 5 Cold. 
 (Tenn.) 561; Moody t. Alter, 12 Heisk. (Tenn.) 142; Gould v. Meyer, 
 36 Ala. 565; Baltimore, O. & C. Ry. Co. v. Taylor, 81 Ind. 24. 
 
 7 2 Coda V. Thompson, 39 W. Va. 67, 19 S. E. 548. 
 
 7 3 See ante, §§ 3, 179. 
 
 74 See ante, §§ 192-194. 
 
 75 WHO MAY SERVE PROCESS: Held, that a garnishment sum- 
 mons c-annot be served by a person appointed as special constable for 
 the purpose. Mangold v. Dooley, 89 Mo. Ill, 1 S. W. 126. Following 
 Fletcher v. Wear, 81 Mo. 524. Especially, if to minor. Vail v. Rowell, 
 53 Vt. 109. 
 
 Held, that special constable cannot make valid service, his ap- 
 pointment not being regular, for want of affidavit that no officer was 
 
 (333) 
 
§ 268 LAW OF GARNISHMENT. [Ch. 12 
 
 requisite number of days before the return day,'" and 
 witliin the territory over wliich the court from which it 
 
 at hand and the business was urgent. Illinois Cent. Ry. Co. v. 
 Brooks, 90 Tenn. 161, 16 S. W. 77. 
 
 Without considering whether it is necessary or not, under this law, 
 that the precept should be served by some officer commissioned to 
 serve process, or by some person regularly deputed to make the par- 
 ticular service, it is certainly true that it Is far better and safer. 
 Johnson v. Delbridge, 35 Mich. 436. 
 
 Held, that the writ must be served by an officer to whom it is di- 
 rected, and not by one to whom it might have been directed, and who 
 is otherwise qualified to make it. Menderson v. Specker, 79 Ky. 509. 
 Contra, Poster v. Wiley, 27 Mich. 244, 248, 15 Am. Rep. 185. 
 
 Service by deputy sheriff, when another deputy is plaintift, is void, 
 the statute providing that in such cases service shall be made by the 
 coroner. Thayer v. Ray, 17 Pick. (Mass.) 166. Held, that the de- 
 fect is waived by garnishee answering. Reynolds v. Collins, 78 Ala. 
 94. 
 
 Justice of the peace cannot serve summons. Massengale v. McGinty, 
 73 Ga. 120. 
 
 Sheriff receiving garnishment summons to serve sent a certified copy 
 of it to the sheriff of another county, who served it there, without hav- 
 ing the original. Held, that sheriff was without authority, and the 
 service was invalid. Carroll Co. Bank v. Goodall, 41 N. H. 81. 
 
 Only the officer holding a writ of attachment has power to summon 
 garnishees thereunder. Service of summons by an officer without the 
 attachment writ is void. Van Fossen v. Anderson, 8 Iowa, 251; Don- 
 ald V. Nelson, 95 Ala. Ill, 10 South. 317; Wales v. Clark, 43 Conn. 183. 
 Compare Pratt v. Sanborn, 63 N. H. 115. 
 
 NEGLIGENCE OF OFFICER: Concerning liability of officer for 
 failure to serve writ, see Smith v. Yale, 50 Conn. 526; Howe v. White, 
 49 Cal. (158. 
 
 7 8 Southern Bank v. McDonald, 46 Mo. 31; Paul v. Bird, 25 N. J. 
 Law, 559; Alexander v. Equitable Fire Ins. Co. (Miss.) 12 South. 706; 
 Alexander v. Lloyd, 70 Miss. G(i2. 14 South. 22. Contra, McKenzie v. 
 Ransom, 22 Vt. 324. 
 
 It may be served before the summons in the principal suit is served. 
 Phillips V. Germon, 43 Iowa, 101. 
 
 "IN DETERMINING THE TIME within which process or noUce 
 (334) 
 
Ch. 12] PRELIMINARY PROCEDURE. § 269 
 
 issues has jurisdiction, or express statutory authority 
 to send this writ for service," or the service will be 
 absolutely void. 
 
 Must Otherwise Comply with Statute. 
 
 § 269. It is also essential to the validity of the serv- 
 ice that it be made in the manner prescribed by the 
 statute under which it issues, usually by reading or 
 showing the original to the garnishee, and giving him 
 a marked or certified copy, together with the statutory 
 fee for his answer.'^ When no other mode of service 
 
 must be served, the language of the statute must be observed; ancT 
 where an act is to be done a certain number of days before a day stat- 
 ed, then that day is excluded in the computation; but where an act is 
 to be done a certain number of days before another act, then the day 
 on wliich tliat act is to be done is included." Chaddock v. Barry, 9;!' 
 Mich. 042, 53 N. W. 785, following Columbia Turnpike Koad v. Hay- 
 wood, 10 Wend. (N. Y.) 422. See, also. Smith v. Force, 31 Minn. IIP, 
 16 N. W. 704; White v. German Ins. Co., 15 Neb. 660, 20 N. W. 30;. 
 Foster v. Markland, 37 Kan. 32, 14 Pac. 452. 
 
 ^^ Hebel v. Amazon Ins. Co., 33 Mich. 400; Toledo, W. & AV. Ry. 
 Co. V. Reynolds, 72 111. 487; Gage v. Maschmeyer, 72 Iowa, 696, 34 N. 
 W. 482. Compare Pike v. Lytle, 6 Ark. 212. 
 
 "It is true a justice of the peace cannot send process beyond the- 
 territorial jurisdiction of such a court, as defined by statute. The- 
 judgment in this case was obtained in the circuit court, and no rea- 
 son is perceived why it could not send process of this character to 
 any county in the state. * * * Any other construction would de- 
 feat the intention of the legislature." Toledo, W. & W. Ry. Co. v. 
 Reynolds, 72 111. 487. 
 
 Garnishment summons from justice court cannot be sent out of the 
 county for service, except under How. Ann. St. Mich. § 8035. He- 
 bel v. Amazon Ins. Co., supra. 
 
 7 8 Kneeland v. Cowles, 4 Chand. (Wis.) 46, 3 Pin. (Wis.) 316; West 
 V. Harvey, 81 Ga. 711, 8 S. B. 449; Insurance Co. of North America 
 V. Friedman, 74 Tex. 56, 11 S. W. 1046; McGuire v. Church, 49 Conn. 
 248; Hebel v. Amazon Ins. Co., 33 Mich. 400; Railroad Co. v. Todd, 
 
 (335) 
 
§ 270 LAW OF GARNISHMENT. [Ch. 12 
 
 is provided, service as in a personal action is suffi- 
 cient." 
 
 Garnishee may Waive Irregularities. 
 
 § 270. The garnishee may make many admissions 
 and waivers without endangering his protection. He 
 may waive payment of the fee allowed him by law, and 
 his appearance and answer without objection will cure 
 all defects in the process which do not go to the juris- 
 diction of the subject-matter.^" 
 
 11 Heisk. (TenD.) 549; Desha v. Baker, 3 Ark. 509; Hlte v. Fisher, 
 76 Ind. 231. 
 
 ACTUAL KNOWLEDGE by the garnishee that a writ has been 
 issued against him will not aid the lack of due service. Harrell v. 
 Mexico Cattle Co., 73 Tex. t>12, 11 S. W. 863. 
 
 Held, that the original summons should be delivered to the gar- 
 Bishee. West v. Harvey, 81 Ga. 711, 8 S. E. 449. 
 
 PAYMENT OF FEES TO THE GARNISHEE: The garnishee is 
 not compelled to obey a summons unless his fees for mileage and 
 ■one day's attendance, as provided for by statute, are tendered or 
 paid in advance. McConnell v. Rakness, 41 Minn. 3, 42 N. W. 539. 
 
 But failure to pay the garnishee the statutoiy fee at the time of 
 service does not render the service void, though the garnishee de- 
 mand his fee then. The failure to pay the fees, if. demanded at 
 the time of service, excuses the garnishee from default for not an- 
 swering; but, after such service, he pays or delivers, at his peril, 
 any money or property belonging to the defendant, as his fees may 
 be afterwards tendered him, and he then required to answer on the 
 original service. Westphal v. Clark, 42 Iowa, 371. 
 
 If the garnishee appears without demanding his fees in advance, 
 he thereby waives his right to demand them before answering; and 
 if, when called upon to answer, he refuses to do so until his fees 
 are paid, a judgment by default may properly be rendered against 
 him. Stockberger v. Lindsey, 65 Iowa, 471, 21 N. W. 782. 
 
 7 9 Purves V. Lex (Pa. Sup.) 9 Atl. 167. See, also, post, § 273. 
 
 so Hinkley v. St. Anthony Palls Water-Power Co., 9 Minn. 55 (Gil. 
 44); Howland v. Jeuel, 55 Minn. 102, 56 N. W. 581; Garland v. Mc- 
 (336) 
 
Ch. 12] PKELIMINAKY PROCEDURE. § 271 
 
 Garnishee cannot Waive Jurisdictional Defects. 
 
 § 271. Such waivers by the garnishee cure all de- 
 fects in the service or process as a personal sunamons, 
 but not as an attachment upon the property. Appear- 
 ance and submission under void service depend upon a 
 personal right to waive service, which the garnishee, 
 as such, does not possess. He can waive his own 
 rights, but cannot waive the defendant's rights. He 
 cannot voluntarily appear and substitute his creditor's 
 creditor for his own, because that goes to jurisdiction 
 of the subject-matter, not to jurisdiction of the per- 
 son." Fatal defects in the service or process cannot 
 be cured by any act of the garnishee. Although the 
 
 Kittrick, 52 Wis. 261, 9 N. W. IGO; Wickham v. South Shore Lum- 
 bpr Co., 89 Wis. 23, 61 N. W. 287; Axman v. Dueker, 4.j Kan. 74.5, 
 26 Pac. 946; Lupton t. Moore, 101 Pa. St. 318; Bushnell v. Allen, 
 48 Wis. 460, 4 N. W. 599; Houston v. Vi'alcott, 1 Iowa, 86; Carring- 
 ton V. Eastman, 1 Pin. (Wis.) 650; Miller v. O'Bannon, 4 Lea (Tenn.) 
 t>98; Howard v. Crawford, 21 Tex. 399; Truitt v. Griffin, 61 111. 26; 
 Roynolds v. Collins, 78 Ala. 94; Northern Gent. Ry. Co. v. Rider, 
 45 Md. 24; McKenzie v. Ransom, 22 Vt. 324; Pulliam v. Aler, 15 
 Grat. (Va.) 54; Dittenhoefer v. Coeur d'Alene Clothing Co., 4 Wash. 
 519, 30 Pac. 660. 
 
 The following and a part of the foregoing decisions seem to go the 
 length of holding that the garnishee may waive service entirely; but 
 they go upon a mistaken view of his position, and overlook the de- 
 fendant's right. Whitney v. Lehmer, 26 Ind. 503; Carter v. Kosh- 
 land, 12 Or. 492, 8 Pac. 556; Marqueze v. Le Blanc, 29 La. Ann. 194; 
 Phipps V. Suodgrass, 31 La. Ann. 88; Gomila v. Milliken, 41 La. 
 Ann. IIG, 5 South. 548; Cahoon v. Morgan, 38 Vt. 234; Weed Sew- 
 ing Mach. Co. V. Boutelle, 56 Vt. 570, 48 Am. Rep. 891; Phillips v. 
 Thurber, 56 Ga. 393; Burt v. Parish, 9 Ala. 211. 
 
 81 Steen v. Norton, 45 W^is. 412, 417; Edler v. Hasche, 67 Wis. 653, 
 31 N. W. 57; McCormick Harvesting Mach. Co. v. James, 84 Wis. 
 600, 54 N. W. 1088; Hebel y. Amazon Ins. Co., 33 Mich. 400; Ray- 
 mond V. Rockland Co., 40 Conn. 401; Harrell v. Mexico Cattle Co., 
 73 Tex. 612, 11 S. W. 863; Insurance Co. of North America v. Fried- 
 LAW GARNISH. 22 (337) 
 
§ 272 LiW OF GAEiSISHMENT. [Oh. 12 
 
 garnishee indorse on the back of the garnishment sum- 
 mons, and sign, an admission of service, yet any per- 
 son interested may object that there has been no valid 
 service, and thereupon the garnishee vv^ill be dischar- 
 ged/^ 
 
 Sercice of Garnishment Summons upon Natural Persons. 
 
 § 272. The statutes usually require that the sum- 
 mons in garnishment shall be served personally upon 
 the garnishee; and in this, as in other respects, the 
 statute must be complied with.^^ If the summons is 
 against several as joint garnishees, each should be 
 
 man, 74 Tex. 56, 11 S. W. 1046; Gates t. Tusten, 89 Mo. 13, 14 S. W. 
 827; Epstein v. Salorgne, 6 Mo. App. 352; Nelson v. Sanborn, 64 
 N. H. 310, 9 Atl. 721; Stt.te v. Duncan, 37 Neb. 631, 56 N. W. 214; 
 Gage V. Maschmeyer, 72 Iowa, 696, 34 N. W. 482; Schindler v. 
 Smith, 18 La. Ann. 476; Northern Cent. Ry. Co. v. Rider, 45 Md. 24; 
 AVile V. Cohn, 03 Fed. 759. 
 
 "The nature of the proceeding requires that the law shall be 
 brought to bear directly against the right of the principal defendant 
 in the hands or under the control of the garnishee; and the mode, 
 and the only one, provided for this is by service of the process on, 
 or submission to service by, some one competent in law to receive 
 service. The law itself must be caused to attach, and it can be 
 effected in no other way. Independent and spontaneous submis- 
 sion by the custodian or debtor of the right belonging to the prin- 
 cipal defendant cannot bind him. The intervention of the law, ac- 
 cording to its own substantial appointments, can alone initiate com- 
 pulsory novation." Hebel v. Amazon Ins. Co., supra. 
 
 "Whatever a garnishee may do respecting his own rights, he is 
 powerless to do anything which will affect the rights of third per- 
 sons; and if he is not legally served, nothing is attached in his 
 hands." Gates v. Tusten, supra. 
 
 82 Id. 
 
 8 3 Ex parte Alston, 2 Brev. (S. C.) 87; Richardson v. Whitfield, 1 
 McCord (S. C.) 403; Carter v. Koshland, 12 Or. 492, 8 Pac. 556. 
 
 But the statutes of some of the states allow service by leaving a 
 copy of the summons at the garnishee's usual place of residence, or 
 (338) 
 
Ch. 12] PRELIMINARY PROCEDURE. § 272 
 
 served with process.^* But if only a part of the joint 
 garnishees reside within the state or can be there 
 found, service on tJiose residing within the state is suffi- 
 cient to confer jurisdiction of the debt or property oar- 
 nished, and authorize the court in passing judgment 
 against the garnishee in respect thereof/'* And serv- 
 ice of summons upon one member of the copartnership 
 to which it is directed is sufficient in any case, unless 
 the garnishee, in season, make the objection of want 
 of due service/" 
 
 at his place of business. Conley v. Cliilcote, 25 Oliio St. 320; Whit- 
 man V. Keith, 18 Ohio St. 134; Schindler v. Smith, 18 La. Ann. 476. 
 
 84 Warner v. Pei-kins, 8 Cush. 518. 
 
 8 5 Parlver v. Danforth, 10 Mass. 299; Peck v. Barnum, 24 Vt. 75; 
 Flagg V. Piatt, 32 Conn. 216. 
 
 But one member of nonresident partnership held unable to accept 
 service within the state, so as to bind the firm. Clark v. Wilson, 15 
 N. H. 150. 
 
 8 6 Hoyt V. Robinson, 10 Gray, 371; Ilinkley v. St. Anthony Falls 
 Water Power Co., 9 Minn. 55 (Gil. 44); Bushnell v. Allen, 48 Wis. 
 460, 4 N. W. 599; Bean v. Barney, lO Icwa, 498; Speak v. Kinsey, 
 17 Tex. 301. Compare Gerry V. Gerrj', 10 Allen, 160. But see Proc- 
 tor V. Lewis, 50 Mich. 329, 15 N. W. 495; Lyon v. Ballentine, 63 
 Mich. 97, 29 N. W. 837. 
 
 When only one of two garnishees is served, held, that neither he. 
 the defendant, nor a claimant can object to the want of service on 
 the other. Shelters v. Bourdeau (N. H.) 32 Atl. 151. 
 
 Service of summons upon a copartnership, by leaving copy of the 
 summons at the usual place of business of the firm, with the person 
 in charge, held sufficient service upon the firm, although garnishee- 
 duly objected to want of due service. Whitman v. Keith, 18 Ohio St_ 
 134, 146. 
 
 Held, that service upon one member ot a firm attached the debt,, 
 and rendered the garnishee liable to the plaintiff, although the other 
 member of the firm paid the debt to the defendant before knowing, 
 of the garnishment. State v. Linaweaver, 3 Head (Tenn.) 51. 
 
 If service on one partner alone is ever sufficient to authorize ren- 
 dering judgment against both for the joint debt, it cannot be done 
 
 (339) 
 
§ 273 LAW OF GAKNISHMENT. [Ch. 12 
 
 Service of Garnishment Summons upon Corporations, 
 
 § 273. Service of garnishment summons, under 
 statutes not providing any special mode of service up- 
 on corporations, may be made in the manner provided 
 by law for service of summons upon such corporations 
 in ordinary actions.*^ But, if the statute under which 
 the proceedings are conducted provid.es the manner in 
 which such summons shall be served, it must be served 
 
 unless the return of the officer shows that he was unable to find the 
 other. Proctor v. Lewis, 50 Mich. 329, 15 N. W. 495. 
 
 87 Boyd V. Chesapeake & O. Canal Co., 17 Md. 195, 79 Am. Dec. 
 fi46; Hehel v. Amazon Ins. Co., 33 Mich. 400, 405; Baltimore & O. 
 Ry. Co. V. Gallahue, 12 Grat. (Va.) 655, Mobile & O. Ry. Co. v. Barn- 
 hill, 91 Tenn. 395, 19 S. W. 21. Compare Hinkley v. St. Anthony 
 Falls Water Power Co., 9 Minn. 55 (Gil. 44); Pennsylvania Ry. Co. 
 V. Peoples, 31 Ohio St. 537; Claflin v. Iowa City, 12 Iowa, 284; Ken- 
 nedy V. Hibernia Savings & Loan Soc, 38 Cal. 151. 
 
 But garnishment summons cannot be served on a foreign corpora- 
 tion doing business in the state, by serving the same upon an attor- 
 ney appointed, as required by law, to receive service of process in 
 "actions upon any liability or indebtedness incuiTed or contracted 
 while such company, etc., transacted business in this state," be- 
 cause the garnishment suit is not commenced upon any liability con- 
 templated by the statute. Moore v. Wayne Circuit Judge, 55 Mich. 
 84, 90, 20 N. W. 801; Hebel v. Amazon Ins. Co., 33 Mich. 400, 405; 
 Upton Manuf g Co. v. .Stewart, 61 Iowa, 209, 10 N. W. 84. Compare 
 Milwaukee Bridge & Iron Works v. Wayne Circuit Judge, 73 Mich. 
 l.^o, 41 N. W. 215; (;erm.an-Anierican Ins. Co. v. Chippewa Circuit 
 Judge (Mich.) 63 N. W. 531. Contra, iXoshassuck Pelt Mill v. Bland- 
 ing, 17 R. I. 297, 21 Atl. 538. 
 
 A Georgia statute allowed service of process in ordinary cases to 
 be made upon an officer or agent of the corporation. The garnish- 
 ment statute required summons to be personally served. Held, that 
 garnishment summons should be served upon the president of the 
 corporation, and not upon any subordinate officer, even though the 
 president be temporarily absent from the state, the reason assigned 
 being that garnishment acts as an immediate attachment, and 
 (340) 
 
Ch. 12] PRELIMINARY PROCEDURE. § 273 
 
 in that manner and upon some person therein desig- 
 nated as competent to receive service/* The mode of 
 service upon foreign corporations is absolutely in the 
 
 should be made on the one controlling the afEairs of the company, 
 to protect them from loss. Clark v. Chapman, 4.'5 Ga. 486; Steiner 
 V. Central Ry. Co., 60 Ga. 552; Bingham v. Port Royal & A. Ry. 
 Co., 74 Ga. 365. 
 
 Held, that an insurance company may be sei-ved as garnishee, by 
 service upon the attorney required by law to be appointed by the 
 company to receive service of process upon the company in actions 
 against it; but he must be personally served, and service on the 
 clerk in his office Is not sufficient. Dittenhoefer v. Coeur d'Alene 
 Clothing Co., 4 Wash. 519, 30 Pac. 660. 
 
 A California statute allovt^ed service of process in ordinary actions 
 to be made ujpon "the president or other head of the corporation, 
 secretary, cashier, or managing agent thereof." Service of garnish- 
 ment upon the teller of a bank held sufficient. Kennedy v. Hi- 
 bernia Savings & Loan Soc, 38 Cal. 151. Compare Lambreth v. 
 Clarke, 10 Heisk. (Tenn.) 32. 
 
 Held, that the cashier of a bank is a proper person on whom to 
 serve a garnishment against the bank. Rosenberg v. First Nat. 
 Bank of Texarkana (Tex. Civ. App.) 27 S. W. 897. 
 
 SERVICE ON RECEIVER: In the absence of specific statute, 
 when the property and business of a corporation is in the hands of 
 a receiver, he is the proper person on whom to sei-ve process to 
 bring in the corporation as garnishee. Ganebin v. Phelan, 5 Colo. 83; 
 Irvine v. Dean, 93 Tenn. 346, 27 S. W. 666. 
 
 8 8 First Nat. Bank of Detroit v. Burch, 76 Mich. 608, 43 N. W. 453; 
 Kirby Carpenter Co. v. Trombley, 101 Mich. 447, 59 N. W. 809; 
 Tompkins Machine & Implement Co. v. Schmidt (Tex. App.) 16 S. 
 W. 174. 
 
 Exceptional modes of service must be confined to the cases, and 
 exercised in the way, precisely indicated by the statute. Hebel v. 
 Amazon Ins. Co., 33 Mich. 400. 
 
 GENERAL OR SPECIAL AGENT: In garnishment proceedings, 
 under a statute which allowed the garnishment summons to be 
 served upon the president, cashier, secretary, treasurer, general or 
 special agent, superintendent, or other principal officer of such cor- 
 poration, held, that "the terms 'general or special agent' are very in- 
 definite, but, employed as they are here, in association with terms 
 
 (341) 
 
§ 273 LAW OF GARNISHMENT. [Ch. 12 
 
 discretion of the legislature. They have no existence 
 outside of the state of their creation, except by comity; 
 and, if they wish to do business in other states, such 
 states may impose any conditions they may wish, rea- 
 sonable or unreasonable, and this is not denying any 
 
 designating the principal otQcers of the corporation, they evidently 
 intend agents who, either generally, or in respect to some particular 
 department of the corporate business, have a controlling authority, 
 «ither general or special. They do not mean every man who is in- 
 trusted with a commission or an employment." Kirby Carpenter 
 Co. V. Trombley, 101 Mich. 447, 59 N. W. 809; Lake Shore & M. S. 
 Ry. Co. V. Hunt, 39 Mich. 489. Compare Waco Lodge No. 70 v. 
 Wheeler, 59 Tex. 554. A bookkeeper is not competent to receive 
 service under this statute. Pettit v. Muskegon Booming Co., 74 
 Mich. 214, 41 N. W. 900. 
 
 STATION AGENT: The statute, allowing service to be made up- 
 on the "nearest station or freight agent," is not complied with by . 
 proof of service upon "the nearest agent." Haley v. Hannibal & 
 St. J. Ry. Co., 80 Mo. 112; Mangold v. Dooley, 89 Mo. Ill, 1 S. W. 
 126. 
 
 A MANAGING OFFICER: Sei-vice on an agent doing business 
 in the state for a foreign corporation is service upon a "managing 
 ■officer" of such corporation. McAllister v. Pennsylvania Ins. Co., 
 28 Mo. 214; Xlosher v. Banking House, 6 Mo. App. 598. Compare 
 Holland v. Mobile & O. Ry. Co., 16 Lea (Tenn.) 414; Hargis v. East 
 Tennessee, V. & G. liy. Co., 90 Ga. 42, 15 S. B. 630. 
 
 ABSENCE OF PROPER OFFICERS: It is the duty of a domes- 
 tic corporation to keep an officer within the state upon whom process 
 against it may be served. It will not be presumed that the corpora- 
 tion intended to put itself outside the jurisdiction of the state. 
 Therefore, if all the principal olficers reside out of the state, it will 
 te presumed that the corporation intended that the officer living 
 within the state, and having charge of its affairs there, in the ab- 
 sence of the principal officers, should be considered as its managing 
 agent or officer, for the purpose of receiving service of process 
 against it. Wickham v. South Shore Lumber Co., 89 Wis. 23, 61 
 N. W. 287. 
 
 A Connecticut statute provided that, when the secretary does not 
 reside in the town where the business of 'tht corporation is trans- 
 (342) 
 
Oh. 12] PRELIMINARY PEOCEDUKE. § 274 
 
 person within its jurisdiction tlie equal protection of 
 
 its laws/' 
 
 Lmos for Substituted Service Conslitv.tional. 
 
 § 274. The statutes of most of the states provide 
 a proceeding by garnishment to collect demands due 
 from persons living without, having no attachable 
 property, and who cannot be found within, the juris- 
 diction."" Some of these statutes provide for publica- 
 tion of notice to the principal defendant, some of them 
 
 acted, the summons In garnishment may be served on the clerk or 
 bookkeeper in charge. Held that, the secretary being continually 
 absent on business, service on the agent in charge is sufficient, 
 though the home of the secretary is there. Adams v. Willimatic 
 Linen Co., 46 Conn. 320. It is not sufficient to serve process on the 
 president, treasurer, or financial manager under this statute, if the 
 corporation has a secretary where service may be made on him. 
 Raymond v. Rockland Co., 40 Conn. 401. Compare Northern Cent. 
 Ry. Co. V. Rider, 45 Md. 24. 
 
 Service upon a bank as garnishee by service on a bookkeeper 
 during business hours, he being the only person found in the bank- 
 ing house, is good service, under a statute allowing service upon 
 the "president, or other head of the same, or the secretary, cashier, 
 or managing agent thereof." First Nat. Bank of Blue Hill v. Tur- 
 ner, 30 Neb. 80, 46 N. W. 290. Compare Harrell v. Mexico Cattle 
 Co., 73 Tex. 612, 11 S. W. 863. 
 
 REQUESTED SERVICE: The president of a corporation di- 
 rected the officer having the process to deliver the same to a clerk. 
 Held good service on the president. Davidson v. Donovan, 4 Cranch, 
 C. C. 578, Fed. Cas. No. 3,603. 
 
 89 Shafer Iron Co. v. Iron Circuit Judge, 88 Mich. 464, 50 N. W. 
 389; First Nat. Bank of Detroit v. Burch, 80 Mich. 242, 45 N. W. 93; 
 National Bank of Commerce v. Huntington, 129 Mass. 444. 
 
 90 2 How. Ann. St. Mich. §§ 6855, 8087; 3 How. Ann. St. Mich. 
 § 6841; Gen. St. Minn. c. 66, §§ 150, 151; Sanb. & B. Ann. St. § 
 2753; Frisk v. Reigelman, 75 Wis. 499, 506, 43 N. W. 1117; Fuller 
 V. Foote, 56 Conn. 341, 15 Atl. 760; Jepson v. International Fra- 
 ternal Alliance, 17 li. I. 471, 23 Atl. 15; Morse v. Nash. 30 Vt. 76. 
 
 (313) 
 
§ 275 LAW OF GARNISHMENT. [Oh. 12 
 
 provide that notice to the garnishee shall be such no- 
 tice, and others provide that notice of the proceedings 
 shall be served personally upon the principal defend- 
 ant wherever he may be found, without the jurisdic- 
 tion. The validity of such legislation to confer juris- 
 diction upon the court to condemn the debt or prop- 
 erty in the hands of the garnishee to payment of the 
 plaintiff's demand, without jurisdictional service of 
 process upon the principal defendant, is well estab- 
 lished, and rests upon the ground that every state pos- 
 sesses exclusive sovereignty over all persons and prop- 
 erty within its territorial limits. °^ 
 
 Siich Statutes must be Strictly Pursued, 
 
 § 275. But, the remedy being extraordinary, and so 
 liable to abuse and injustice, unless properly regu- 
 lated, the courts enforce a rigorous compliance with 
 all the provisions of the statute; and a failure in any 
 will be fatal to the proceedings, and deprive the court 
 of jurisdiction if previously acquired. All rights ac- 
 quired under the proceedings depend upon compliance 
 with the requirements of the statute.'^ 
 
 91 See ante, § 233; Moore v. AVayne Circuit Judge, 55 Mich. 84, 20 
 N. W. 801; Newland v. Circuit Judge of VPpyne Co.. 85 Mich. 151, 48 
 N. W. 544; National Bank of New London v. Lake Shore & M. S. 
 Ry. Co., 21 Ohio St. 221. 
 
 8 2 Lackett V. Rumbaugh, 45 Fed. 23, 30. 
 
 Tlie officer to whom summons is given for service upon the prin- 
 cipal defendant must make an honest effort, during every day al- 
 lowed him by law for service, to serve the same on him, before he cap 
 make return that the principal defendant lias no place of residence 
 within the county, and cannot be found therein, and thereupon make 
 service upon the garnishee as allowed in such cases. Kraft v. 
 Raths, 45 Mich. 20, 7 N. W. 232; Withington v. South worth, 26 
 Mich. 881; Iron Cliffs Co. v. Lahais, 52 Mich. 394, 18 N. W. 121; 
 (344) 
 
Ch. 12] PRELIMINARY PROCEDURE. § 276 
 
 Such Service not Foundation for Personal Judgment. 
 
 § 276. If no property is seized by actual levy, and 
 no personal service is had on the defendants, and the 
 
 Isabelle v. Iron Cliffs Co., 57 Mich. 120, 23 N. W. 613; Kidd v. 
 Dougherty, 59 Mich. 240, 26 N. W. 510. But see Winner v. Hoyt, 
 68 Wis. 278, 290, 32 N. W. 128. Compare Decatur, C. & N. O. Ry. Co. 
 V. Crass, 97 Ala. 519, 12 South. 43. 
 
 The summons from justice court, if the defendant has a last place 
 of residence within the county, should be served by leaving a copy 
 there with some member of the family; but, service being regular, 
 the justice is ousted of jurisdiction by making an unauthorized ad- 
 journment. Segar v. Muskegon Shingle & Lumber Co., 81 Mich. 344, 
 45 N. W. 982. 
 
 Service by leaving a copy of the summons at the last place of resi- 
 dence is void, if left with a person not a member of the family. 
 Laidlaw v. Morrow, 44 Mich. 547, 7 N. W. 191. 
 
 Failure to serve the prescribed notice upon all the nonresident de- 
 fendants within the time limited by the statute is fatal to the pro- 
 ceedings. Hamilton v. Rogers, 67 Mich. 135, 34 N. W. 278; Lands- 
 berg V. Bullock, 79 Mich. 278, 44 N. W. 608. 
 
 Although not expressly required by the statute, some form of serv- 
 ice must be had upon the principal defendant within the county 
 where the suit Is conducted; and, as the only service within the 
 jurisdiction is on the garnishee, he must be served within the county. 
 McCloskey v. Judge of Wayne Circuit, 26 Mich. 100; Moore v. Wayne 
 Circuit Judge, 55 Mich. 84, 20 N. W. 801. 
 
 Publication of notice to the defendant must be in compliance 
 with the statute. Frisk v. Reigelman, 75 Wis. 499, 502, 43 N. W. 
 1117; Dorr's Adm'r v. Rohr, 82 Va. 359. 
 
 The copy left at the defendant's last place of residence not being 
 duly attested, as required by law, the service is void. McGuire v. 
 Church, 49 Conn. 248. 
 
 Held, that garnishee can waive defects, so as to support the gar- 
 nishment. McKenzie v. Ransom, 22 Vt. 324. 
 
 A judgment passed against the defendant on the return day of the 
 process, without adjournment of at least three months, as required 
 by statute, when defendant is not personally served, is manifestly 
 erroneous. Potter v. Sanborn, 49 Conn. 452. 
 
 "Not in the state" means nonresidents as well as absent resi- 
 dents. Id. 
 
 (345) 
 
§ 277 LAW OP GAENISHMENT. [Ch. 12 
 
 garnishees summoned are not indebted to them, and 
 hold no property belonging to them, the proceedings 
 are necessarily at an end; but the plaintiff may, if 
 he can, disprove the garnishee's denial of ]iabilit3% and 
 thus sustain the jurisdiction.*" In the federal courts 
 garnishment can be employed only when the principal 
 defendant is personally served w^ithin the district with 
 process in the main action." 
 
 The Ofllcer's Return. 
 
 The Only Proper Evidence of Service. 
 
 § 277. All that has been said of the service of the 
 writ applies with equal force to the return, for the re- 
 turn is the officer's report of liis doings under the writ. 
 It should be indorsed upon the writ, or made upon a 
 paper annexed thereto; for the writ and return consti- 
 tute, essentially, one record, and must go together."^ 
 Whatever the statute requires to be done in the serv- 
 ice of the writ, the return must ^how to have been 
 done; ^^ and, unless it shows that due service has been 
 
 8 3 McGlUin V. Claflin, 52 FeA. G57. 
 
 8 4 Anderson v. Shaffer, 10 Fed. 26G; Central Trust Go. v. Chatta- 
 nooga R. & C. R. Co., 68 Fed. 685; Richmond v. Dreyfous, 1 Sumn. 
 131, Fed. Cas. No. 11,799. 
 
 9 Rock V. Singmaster, 62 Iowa, 511, 17 N. W. 744. 
 
 But failure to indorse the return upon the proper summons is held 
 not to be jurisdictional. Bushnell v. Allen, 48 Wis. 460, 4 N. M^ 409. 
 
 OS Dasha v. Baker, 3 Ark. 509; Batchellor v. Richardson, 17 Or. 
 334, 21 Pac. 392; Sun Mut. Ins. Co. v. Seeligson, 59 Tex. 3; Steiners 
 V. Central Ry. Co., 60 Ga. 552; Insurance Co. of North America v. 
 Friedman, 74 Tex. 56, 11 S. W. 1046; James v. Jenkins, Hempst. 189, 
 Fed. Cas. No. 7,181a: Acme Lumber Co. v. Frances Vandergrift 
 Shoe Co., 70 Miss. 91, 11 South. 657; Harrell v. Mexico Cattle Co., 73 
 Tex. 612, 11 S. W. 803; Maulsby v. Farr, 3 Mo. 439. 
 
 When the statute authorized the sheriff to summon garnishees only 
 (346) 
 
Ch. 12] PRELIMINARY PROCEDURE. § 278 
 
 made, the court has before it no proper evidence upon 
 which to base any furtlier proceedings."' Its absence 
 cannot be cured by the garnishee's signed admission of 
 due service."' 
 
 Should State Acts Done, Time, and Persons Served. 
 
 § 278. The return should state the facts, and a re- 
 turn of "Executed" is no evidence of sufficient serv- 
 ice.°° It should show the time when service was 
 made,^°° and upon whom made; and, if the service is 
 
 in case he could find no property on which to levy, the return 
 should show that he had been unable to find property, and, failing to 
 do so, no doubt, the garnishee might, on motion, have it quashed, if 
 the sheriff should not amend on leave granted; but, failing to make 
 the motion, he must be considered as waiving the objection. Truitt 
 V. Griffin, 61 111. 26. 
 
 i>7 Rocl£ V. Singmaster, 62 Iowa, 511, 17 N. W. 744; .Johnson v. 
 Delbridge, 35 Mich. 436; McDonald v. Moore, 65 Iowa, 171, 21 N. W. 
 504; Haley v. Hannibal & St. Joseph Ry. Co., 80 Mo. 112. Com- 
 pare Harrell v. Mexico Cattle Co., 73 Tex. 612, 11 S. W. 8G3. 
 
 But held that, there having been a valid service in fact made, the 
 court thereby acquired jurisdiction, although the return was not 
 made till after judgment was rendered. Kneeland v. Cowles, 4 
 Chand. (Wis.) 46. 
 
 »s Rebel V. Amazon Ins. Co., 33 Mich. 400; Johnson v. Delbridge, 
 35 Mich. 436, 438; Schindler v. Smith, 18 La. Ann. 476. 
 
 8" Roy V. Heard, 38 Miss. 544. Compare Pomeroy v. Rand, Mc- 
 Nally & Co. (111.) 41 N. E. 630. 
 
 But, if the statute prescribes what shall be the form of the re- 
 turn, that form would, of course, be sufficient, though not stating 
 the facts. However, if the officer does not choose to follow the 
 statutory form, he must state all necessary facts; and no presump- 
 tions can be made in favor of due service. Semmes v. Patterson, 
 65 Miss. 6, 3 South. 35. 
 
 A return substantially in the words of the statute prescribing the 
 manner of service will usually be sufficient. Healey v. Butler, 66 
 Wis. 9, 27 N. W. 822. 
 
 100 Lambert v. Challis, 35 Pa. St. 156, note; Sun Mut. Ins. Co. v. 
 
 (347) 
 
§ 279 LAW OF GARNISHMENT. [Cll. 12 
 
 vicarious, it must show the relation of the person 
 served to the garnishee, for the relation is as important 
 as the fact of the service itself.'" 
 
 Defects in — How Cured. 
 
 § 279. Palpable defects in the return are not cured 
 by the presumption that the officer has done his 
 duty.'"^ But it is held that objections to the suffi- 
 ciency of the return must be made before or at the time 
 
 Seeligson, 59 Tex. 3; Cariker v. Anderson, 27 111. 358; Mosher v. 
 Banking House, 6 Mo. App. 59S. 
 
 The date Indorsed must be taken as the date of the service, as the 
 officer need not date his return. The clerk makes that entry, or 
 should. Cariker v. Anderson, 27 111. 358. 
 
 101 Kirby Cai-penter Co. v. Trombley, 101 Mich. 447, 59 N. W. 809; 
 Hebel v. Amazon Ins. Co., 33 Mich. 400; Lake Shore & M. S. Ry. 
 Co. V. Hunt, 39 Mich. 471; Haley v. Hannibal & St. J. Ry. Co., 80 
 Mo. 112; Montgomery & E. Ry. Co. v. Hartwell, 43 Ala. 508; Hargis 
 V. East Tennessee, V. & G. Ry. Co., 90 Ga. 42, 15 S. E. 631; Mayer 
 V. Chattahoochee Nat. Bank, 46 Ga. 606; Tompkins Mach. & Imp. Co. 
 V. Schmidt (Tex. App.) 16 S. W. 174. 
 
 Return of service upon a corporation should be served on 
 
 (the corporation), by delivering, etc., to (the person served, 
 
 with the name of his relation to the corporation, etc.,) at, etc. Hink- 
 ley V. St. Anthony Falls Water-Power Co., 9 Minn. 55 (Gil. 44). 
 
 102 Laidlaw v. Morrow, 44 Mich. 547, 7 N. W. 191; Segar v. Mus- 
 kegon Shingle & Lumber Co., 81 Mich. 344, 45 N. W. 982; Garland 
 V. Sperling (N. M.) 30 Pac. 925; Gates v. Tusten, 89 Mo. 13, 14 S. 
 W. 827; Semmes v. Patterson, 65 Miss. 6, 3 South. 35. 
 
 But "served by leaving at the dwelling house" is sufficient service 
 at "the last place of abode" of the garnishee. Bruce v. Cloutman, 
 45 N. H. 37, 84 Am. Dec. 111. 
 
 A return is not defective because showing double service, or sei-v- 
 ice on two different days. Anderson v. Graff, 41 Md. 601. 
 
 The officer is presumed to have served the summons according to 
 law. Lowrey v. Clements, 9 Ala. 422; Burt v. Parish, Id. 211. 
 
 "The courts are not critical as to the language used by the officer 
 in making his return, and it is sufficient if it can be fairly inferred 
 therefrom that he has met the requirements of the law, and to this 
 • (348) 
 
Ch. 12] PEELIMINARY PEOCEDUEE. § 279 
 
 of answering the writ."" The return is conclusive of 
 the proceedings under the writ."* The officer can- 
 not afterwards amend it of his own motion, but the 
 court will always allow an amendment to be made, so 
 as to make the return accord with the facts, if the ap- 
 plication therefor is made in season, and upon suffi- 
 cient showing of the facts; "° and, if the officer fail 
 to make a return, the court may direct him to do so.^°° 
 
 end it should receive every reasonable intendment and presump- 
 tion." Sabin v. Micbell (Or.) 39 Pac. 635. 
 
 Returns held sufficient in the following cases: McCoy v. Boyle. 
 10 Md. 391; Lindell v. Benton, 6 Mo. 361. 
 
 10 3 Kohler v. Thorn, 154 Pa. St. 180, 26 Atl. 255. 
 
 A valid return being indorsed on the writ when returnable, the 
 garnishee may, although he has answered, question a return after- 
 wards Indorsed showing a prior service. Vail v. Rowell, 53 Vt. 109. 
 
 io< Castner v. Styer, 23 N. J. Law, 236; Brecht v. Corby, 7 Mo. 
 App. 300; Sadler v. Trustees of Prairie Lodge, 59 Miss. 572. 
 
 That only is the return of the officer which is indorsed and signed 
 when he returns it into court. Breclit v. Corby, above. 
 
 Held, that the garnishee may dispute and disprove the statements 
 of the return. Chanute v. Martin, 25 111. 49. 
 
 105 Main v. Lynch, 54 Md. 658; Bushnell v. Allen, 48 Wis. 461, 4 
 N. W. 599; Ware v. Bucksport & B. Ry. Co., 69 Me. 97; Mayer v. 
 Chattahoochee Nat. Bank, 46 Ga. 606; Mangold v. Dooley, 89 Mo. 111. 
 1 S. W. 126; Brecht v. Corby, 7 Mo. App. 300. 
 
 Appearance and answer held to waive slight defects in the return. 
 Truitt V. Griffin, 61 111. 26; Pulliam v. Aler, 15 Grat. (Va.) 54. 
 
 But a return "Not found," prematurely made cannot be made valid 
 by amendment, so as to show return after proper search. Kraft v. 
 Raths, 45 Mich. 20, 7 N. W. 232. Compare Carroll Co. Bank v. Good- 
 all, 41 N. H. 81. 
 
 100 Rock V. Singmaster, 62 Iowa, 511, 17 N. W. 744. 
 
 (349) 
 
§ 280 LAW OF GARNISHMENT. [Ch. 12 
 
 Notice of the Garnishment to the Principal 
 Defendant. 
 
 No Notice Need he Served on Defendant. 
 
 § 280. If jurisdiction has never been acquired over 
 the principal defendant, so that a, personal judgment 
 can be rendered against him, notice, either actual or 
 constructive, must be given him of any proceedings to 
 reach his property, or by which his rights are to be de- 
 termined, whether the suit be by garnishment or other- 
 wise, for the reason that the rights of no person can be 
 concluded by any proceeding till he has had his day 
 in court. ^" But, in all cases in which he has been 
 personally served with process, or has appeared, so 
 that jurisdiction is acquired bv the court to render a 
 personal judgment against him, no notice need be 
 given him of any proceedings by garnishment, insti- 
 tuted in aid of such action, or to collect the judgment 
 rendered therein, unless such notice is required by 
 some provision of the statute under which the garnish- 
 ment suit is conducted."' 
 
 107 See ante, §§ 232, 233, 274, 275. 
 
 108 Winner v. Hoyt, 68 Wis. 278, 289, 32 N. W. 128; Kesler v. St. 
 Jolins, 22 Iowa, 565; Phillips? v. Gcrmon, 43 Iowa, 101; Smith v. 
 Diclison, 58 Iowa, 444, 10 N. W. 850; Uuion Pac. Ry. Co. v. Smersli, 22 
 Neb. 751, 36 N. W. 139; Reed v. Fletcher, 24 Neb. 435, 39 N. W. 437; 
 Jarvis v. Mitchell, 99 Mass. 530; Ohanute v. Martin, 25 111. 49. 
 
 But the court entertaining the proceedings has undoubted authority. 
 in any case, to require that such notice be given; and as a guard 
 against fraud it is eminently proper. Union Pac. Ry. Co. v. Smersh, 
 above. 
 
 Held, that a law providing for garnishment without notice to the 
 judgment debtor is unconstitutional. Bryant v. Bank of California 
 (Cal.) 8 Pac. 644. 
 (350) 
 
Ch. 12] PEELIMINAEY PROCEDURE. § 282 
 
 Notice Required by Statute is to Secure Good Faith. 
 
 § 281. When the statutes require such notice to be 
 served upon the principal defendant, it is to secure 
 good faith, amd prevent secret or collusive proceedings, 
 and has been said to be in the nature of a notice in a 
 proceeding in rem, served upon the owner after the 
 court has acquired jurisdiction of the res.^°* 
 
 Whether Jurisdictional. 
 
 § 282. Certainly, the defendant has a right to in- 
 sist upon the benefit of this provision; but, in giving 
 it a construction, it is important to determine whether 
 such service on the defendant is jurisdictional, and 
 hence a condition precedent, or a mere notice after ju- 
 risdiction has been obtained, and hence a condition sub- 
 sequent. On the one hand, it ip said that it is not 
 required to secure any new and independent jurisdic- 
 tion over such defendant personallv, or the property 
 and credits sought to be reached thereby, for the serv- 
 ice upon the garnishee gives jurisdiction of the res, 
 and jurisdiction of the principal defendant personally 
 was secured by service of summons upon him in the 
 original suit."" In this view of the question, this no- 
 tice is not process, nor does it bring any party into 
 court."^ But, on the other hand, it is said that, under 
 
 10 9 Winner v. Hoyt, 68 Wis. 278, 32 N. W. 128. 
 
 The object of the statute is to give the judgment defendant an op- 
 portunity to intervene in the proceedings and protect any right he 
 may have. Williams v. Williams, 61 Iowa, 612, l(i N. W. 718. 
 
 This being its purpose, he clearly vs'aives it by appearing without it. 
 Hamilton Buggy Co. v. Iowa Buggy Co., 88 Iowa, 364, 55 N. W. 49(3. 
 
 110 Winner v. Hoyt, 68 Wis. 278, 32 N. W. 128. Compare Bruce v. 
 Cloutman, 45 N. H. 37, 84 Am. Dec. Ill; Aultraan, Miller & Co. v. 
 Markley (Minn.) 63 N. W. 1078. 
 
 111 Compare Truukey v. Cro&by, 33 Minn. 464, 23 N. W. 846. 
 
 (351) 
 
§ 283 LAW OF GAKNISHMBNT. [Ch. 12 
 
 such statutes, the principal defendant is a necessary 
 party to the garnishment suit/^^ and therefore this no- 
 tice is essential to jurisdiction of the court over the 
 subject-matter in controversy, which is the debt owing 
 or property held by the garnishee."' 
 
 Time, Manner, Sufficiency, and Waiver of Service of This Notice. 
 
 § 283. However this may be, it is certain that, be- 
 ing required by the statute, the notice must be given 
 in the time and manner prescribed, or the judgment 
 will be erroneous, and may be set aside in a direct pro- 
 ceeding for that purpose.^^* Being required for the 
 defendant's benefit, his appearance without notice is a 
 waiver of it.^" What is a sufficient service when the 
 statute does not prescribe the particular manner in 
 which this notice shall be served? Certainly, any 
 service which would be a valid service as commence- 
 ment of an ordinary action would be sufficient."" 
 
 "2 Wise V. Rothschild, 67 Iowa, 84, 24 N. W. 603. 
 
 "3 Williams v. Williams, 61 Iowa, 612, 16 N. W. 718. 
 
 A subsequent garnishing creditor may move to dismiss for want of 
 a proper notice. Globe Milling Co. v. BojTiton, 87 Wis. 619, 59 N. W. 
 132. 
 
 114 Williams v. Williams, 61 Iowa, 612, IG N. W. 718; Wise v. 
 Rothschild, 67 Iowa, 84, 24 N. W. 603. 
 
 Held, that notice served before issue made is good. The only re- 
 quirement is that it be served the requisite time before the trial. 
 Kenosha Stove Co. v. Shedd, 82 Iowa, 540, 48 N. AV. 933. 
 
 115 Bverdell v. Sheboygan & Fond du Lac Ry. Co., 41 Wis. 395, 402; 
 Winner v. Hoyt, 68 Wis. 278, 290, 32 N. W. 128; Hamilton Buggy Co. 
 V. Iowa Buggy Co., 88 Iowa, 364, 55 N. W. 496. 
 
 116 Hinkley v. St. Anthony Falls Water-Power Co., 9 Minn. 55 (Gil. 
 44). 
 
 Held, that service by publication is sufficient. Broome v. Galena, 
 D., D. & M. Packet Co., 9 Minn. 239 (Gil. 225). 
 
 The notice of the garnishment proceedings which the statute re- 
 quires to be served on the principal defendant need not be served In 
 (352) 
 
Ch. 12J PRELIMINARY PEOCEDUEE. § 284 
 
 But, considered as a notice, and not a process, service 
 upon one of several defendant copartners is notice to 
 all,"' and notice to the attorney who appeared for the 
 defendant in the principal suit is notice to tJie defend- 
 ant/" It must be a notice of the garnishment pro- 
 ceedings, and the summons to him in the main action is' 
 not such a notice/" 
 
 Proceedings to Vacate Garnishment of Errors, etc. 
 
 § 284. The proper affidavit having been made and 
 filed, and the garnishment summons issued and duly 
 served, the case is in court; and, although the affida- 
 vit is not conclusive, either upon the defendant or the 
 (Tarnishee,^^" yet if, for any reason, the garnishment 
 should be dismissed, as that the garnishee is not lia- 
 ble to garnishment v^ithin the state,^" or that the de- 
 fendant has property liable to execution sufficient to 
 satisfy any judgment that may be recovered against 
 him,^" such facts must be proved by the partv seeking 
 the dismissal of the proceedings. Thev will not be 
 
 such a manner that it would be a good service of process. It is suffi- 
 cient that the principal defendant has notice of the pendency of the 
 -suit. Corey v. Gale, 13 Vt. 639; Wires y. Griswold, 26 Vt. 97. 
 
 117 Hinkley v. St. Anthony Falls Water-Power Co., 9 Minn. 55 (Gil. 
 44); Winner v. Hoyt, 68 Wis. 278, 284, 32 N. W. 128; Corning v. 
 Hoyt, 68 Wis. 294, 32 N. W. 138; Emil Kiewert Co. v. Hoyt, 68 Wis. 
 296, 32 N. W. 137. 
 
 lis Trunkey v. Crosby, 33 Minn. 464, 23 N. W. 846. 
 
 119 Wise V. Rothschild, 67 Iowa, 84, 24 N. W. 603. 
 
 120 Barr v. Perry, 3 Gill (Md.) 313; Corbin v. Goddard, 94 lud. 419; 
 P. Cox Manuf'g Co. v. August, 51 Kan. 59, 32 Pac. 636; Field v. Ma- 
 lone, 102 Ind. 251, 1 N. E. 507. 
 
 121 Brauser v. New England Fire Ins. Co., 21 Wis. 506. 
 
 122 Orton V. Noonan, 27 Wis. 572; German- American Bank v. But- 
 ler-Mueller Co., 87 Wis. 467, 58 N. W. 746. 
 
 LAW GABNISH. 23 (353) 
 
§ 285 LAW OF GARNISHMENT. [Ch. 12 
 
 presumed. The proper practice in such cases is for 
 the defendant or garnishee to malte and file in court 
 affidavits of the facts upon which he depends to have 
 the proceedings dismissed, and thereupon move the 
 court that the garnishee be discharged; and the plain- 
 tiff opposes the motion on counter affldavits.^^' When 
 the affidavit appears on its face to be insufficient, the 
 proper practice is to move to quash.^^* 
 
 The Appearance of the Garnishee. 
 
 Manner, Right of, and How Enforced. 
 
 § 285. The garnishee, having been duly subjected 
 to the jurisdiction of the court, should appear and an- 
 swer in the time and manner prescribed by law. The 
 statutes provide various means to make the proceed- 
 ings effectual in case the garnishee fails to appear ii; 
 answer to summons duly served upon him. Some of 
 them provide for an arrest of his person, to bring him 
 bodily into court, and thus compel appearance,^^^ and 
 others provide that, upon his failure to appear, judg- 
 ment shall be entered against him by default, as in or- 
 
 123 Orton v.Noonan, 27 Wis. 572-586. 
 
 124 "Ordinarily, no doubt, where a writ or order can only be issued 
 upon an affidavit or verified complaint, a motion to quasli sucli writ 
 or order will properly call in question the sufficiency of such affidavit 
 or complaint. McGlennan v. Margowski, 90 Ind. 150; Milligan v. 
 State, 97 Ind. 355. This is so in all cases, we think, except where the 
 statute authorizing and regulating the proceeding prescribes a differ- 
 ent mode for testing 'the sufficiency of the order and of the affidavit.' 
 In this latter case, the statutory mode is, of course, the only mode 
 which can be safely pursued, or which will properly present the ques- 
 tion." Hutchinson v. Trauerman, 112 Ind. 21, 13 N. B. 412. 
 
 126 How. Ann. St. Mich. §§ 8033, 8034, 8061; Jones v. Kemper, 2 
 Cranch, C. 0. 535, Fed. Cas. No. 7,472. 
 (354) 
 
Ch. 12] PRELIMINARY PEOCEDUEE. § 286 
 
 dinary cases. He has the same rigrht, under such stat- 
 utes, to appear and defend, or suffer default, as any 
 other party, and mav have an appearance stricken off 
 which is entered without his authority/^" A motion 
 by a garnishee to set aside a judgment rendered 
 against him by default, on the ground that he is not 
 indebted to the defendant, constitutes a general ap- 
 pearance/" The attorney or agent who appears for 
 the garnishee is presumed to be duly authorized to do 
 so; but, if the garnishee can show that lie had no au- 
 thority, the appearance entered by such person will 
 not be binding upon the garnishee.^^^ 
 
 Effect of General Appearance. 
 
 § 286. In ordinary actions, the general appearance 
 of any party operates as a waiver of all defects in the 
 proceedings prior thereto ; but such is not the case in 
 garnishment suits, although it confers jurisdiction of 
 the garnishee himself.^^" In discussing this question, 
 the supreme court of Connecticut uses the following 
 pointed language: "The debt attempted to be attach- 
 ed belonged to Stoddard [the defendant]. It was his 
 property, and the plaintiff attempted to take it by 
 process of law, against his will and consent. The de- 
 
 126 Albert v. Albert, T8 Md. 338, 28 Atl. 388. 
 
 12T Wickliam v. South Shore Lumber Co., 89 Wis. 23, 61 N. W. 2S7. 
 
 128 Moore V. Wayne Circuit Judge, 55 Mich. 84, 20 N. W. 801; 
 Lake Shore & M. S. Ey. Co. t. Hunt, 39 Mich. 469; Pettit v. IMuske- 
 gon Booming Co., 74 Mich. 214, 41 N. W. 900. 
 
 The attorney who appears for the plaintiff in the garnishment suit 
 need not be the attorney of record in the principal suit, and there 
 need be no substitution. The suits are different. Hinkley v. St. 
 Anthony Falls Water-Power Co., 9 Minn. 55 (Gil. 44). 
 
 129 Walter A. Wood Mowing & Reaping Mach. Co. v. Edwards (Tex. 
 Civ. App.) 29 S. W. 418. 
 
 (355) 
 
§ 286 LAW OP GARNISHMENT. [Ch. 12 
 
 fendants [garnishees] might waive a matter pertain- 
 ing to themselves alone, but they could not vi^aive the 
 rights of Stoddard. He had the right to insist that, 
 if his property vs^as taken avi^ay from him, it should be 
 done strictly in accordance with law. It never has 
 been so taken, and, for aught that appears, the defend- 
 ants are liable to pay the claim to him." ^'"' As no 
 waiver by the garnishee in this regard can bind the de- 
 fendant, justice demands that the garnishee himself 
 should be permitted to raise the question at any stage 
 of the proceedings.^" 
 
 ISO Raymond v. Rockland Co., 40 Conn. 401. 405; Nelson y. San- 
 born, C4 N. H. 310, 9 Atl. 721; Ahrens & Ott Manuf'g Co. v. Patton 
 Sash, Door & Building Co., 94 Ga. 247, 21 S. E. 523. 
 
 For a more particular discussion of this subject, see the pages where 
 the matter in which the defect occurred is considered. 
 
 "Appearance could have no effect in the absence of that upon which 
 a judgment must in such case be predicated." Heritage v. Armstrong, 
 101 Mich. 85, 59 N. W. 439. 
 
 Appearance, answer, and plea do not waive any defects in the prin- 
 cipal suit, but only those appearing on the face of the proceedings 
 against the garnishee himself. He is under no obligation to examine 
 the proceedings against the defendant, as it is the plaintiff's duty to 
 see that he has a valid judgment against the defendant, such as 
 will protect the garnishee. Segar v. Muskegon Shingle & Lumber Co., 
 81 Mich. 344, 45 N. W. 982. 
 
 131 Ahrens & Ott Manuf'g Co. v. Patton Sash, Door & Building Co., 
 94 Ga. 247, 21 S. E. 523. Contra, Wickman v. South Shore Lumber 
 Co., 89 Wis. 23, 61 N. W. 287. 
 (356) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 287 
 
 CHAPTER XIII. 
 
 THE DISCLOSURE OR ANSWER OP THE GARNISHEE. 
 
 § 287. Its Nature— Evidence Merely, and Indisputable. 
 
 28S. Evidence Equivalent to an Ansvi'ei- in Chancery or One 
 
 Witness. 
 
 289. Piire Pleading, not Admissible in Evidence. 
 
 290. The Garnishee's Refusal to Ansvs'er— Special Appearance to 
 
 Raise Objection. 
 
 291. Improper Questions. 
 
 292. Contumacious Refusal— Demanding Ruling before An- 
 swering. 
 
 293. When Answer may be Made — Under Writs Contemplating In- 
 
 terrogatories or Further Notice before Answer. 
 
 294. Under Writs Requiring Appearance and Answer with- 
 out Further Notice. 
 
 295. Court may Extend the Time. 
 
 296. Answer may be Made of Course, at Any Time before De- 
 fault Entered, and by Permission Afterwards. 
 
 297. Default against Plaintiff for not Taking Answer. 
 
 298. How the Answer should be Made. 
 
 299. By Whom Answer should be Made — The Plaintiff has a 
 
 Right to Examine the Garnishee Personally. 
 
 300. Who may Answer for a Corporation as Garnishee. 
 
 301. What the Answer should State, and How— Should Fully and 
 
 Impartially State All Facts Affecting Garnishee's Liabil- 
 ity. 
 
 302. Effect of Failure to State Pacts Correctly in the Answer. 
 
 303. May State Facts on Information and Belief— Presump- 
 tion of Truth. 
 
 304. Cannot be Required to State Pacts on Information. 
 
 305. Double Liability from Defective Answer. 
 
 306. Garnishee should Never Suffer Judgment by Default. 
 
 307. Exceptions to the Sufficiency of the Answer. 
 
 308. Extent of Plaintiff's Right to Examine the Garnishee. 
 
 309. Amending, Supplementing, Modifying, and Contradicting the 
 
 Disclosure— Should be Liberally Allowed to Prevent Injus- 
 tice. 
 
 (357) 
 
§ 288 LAW OP GARNISHMENT. [Ch. 13 
 
 § 310. Amending, Supplementing, Modifying, and Contradicting the 
 Disclosure— Answer not Amendable of Course, but by 
 Permission. 
 
 311. Some Amendments of Course, and Some of Right. 
 
 312. Construction and Effect to be Given to the Garnishee's An- 
 
 swer—Equivocal Statements— Language not Distorted. 
 
 313. Statements of Fact and Conclusions of Law— Presump- 
 tion of Truth. 
 
 314. Liability must Clearly Appear, or Garnishee will be 
 
 Discharged. 
 
 315. When Disclosure Shows Prima Facie Liability. 
 
 Its Nature. 
 
 Evidence Merely, and Indisputable. 
 
 § 287. Is the answer or disclosure of the garnishee 
 to be treated as a pleading or as testimony? Upon 
 this question various views are entertained by differ- 
 ent courts, and by the same courts under different stat- 
 utes. On the one extreme, it is held that the garnishee 
 is the plaintiff's witness, — his only wituess, except to 
 ascertain more fully the matters stated in the dis- 
 closure; that the plaintiff cannot contradict or dis- 
 credit him, and, failing to make out a case by this wit- 
 uess, he fails entirely.^ 
 
 Evidence Equivalent to Answer in Chancery or One Witness. 
 
 § 288. Under the circuit court statute in Michigan, 
 it is held that the disclosure does not stand upon the 
 same footing as testimony; but it is the answer of a 
 party, somewhat analogous in its functions to an an- 
 
 1 See, ante, § 181. 
 
 Held, that the answer is evidence merely, and cannot be taken up 
 on appeal, as part of the record, without a bill of exceptions, on the 
 ground that it is a pleading. Rothrock, .1., dissenting, in Brainard 
 V. Simmons, 58 Iowa, 404, 9 N. W. 382, and 12 N. W. 484. 
 (358) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 288 
 
 swer in chancery, and is to be treated by the same 
 rules. ^ Passing down the line a step further, we find 
 cases holding that, while the disclosure of the gar- 
 nishee answers the purposes of a pleading, and is also 
 evidential, it is not entitled to have the same effect as 
 a defendant's answer to a bill in chancery, requiring 
 the equivalent of two witnesses to overthrow it, but 
 stands upon the same footing as other testimony, is a 
 prima facie defense, and may be overturned by a pre- 
 ponderance of evidence.' The weight of the answer is 
 for the jury, not for the court.* 
 
 2 Allen V. Hazen, 26 Mich. 146; Whitfield v. Stiles, 57 Mich. 410, 
 24 N. W. 119; Dawson v. Iron Range & H. B. Ry. Co., 97 Mich. 33, 
 
 ■45, 50 N. W. 106; Page v. Smith, 25 Me. 256. Compare Devries v. 
 Buchanan, 10 Md. 210. 
 
 The statements of the garnishee on his examination have the 
 force of admissions in a plea. Bethel v. Linn, 63 Mich. 404, 30 N. 
 W. 84. The garnishee's answer in justice court may be given in 
 evidence against him in the circuit court on appeal as an admission. 
 Newell V. Blair, 7 Mich. 103. 
 
 3 Kergin v. Dawson, 111. 86; Schwab v. Gingericli, 13 111. 697; 
 Truitt V. Gritfin, 01 111. 26; Kelley v. Weymouth, 68 Me. 197; Ad- 
 lum V. Yard, 1 Rawle (Pa.) 163, 18 Am. Dec. 608; Ersliine v. Sang- 
 ston, 7 Watts, 150; Holton v. South Pac. R. Co., 50 Mo. 151; Elli- 
 son V. Tuttle, 26 Tex. 283; Henry v. Bew, 43 La. Ann. 476, 9 South. 
 101; Devries v. Buchanan. 10 Md. 210; Perea v. Colorado Nat. 
 Bank of Texas (N. M.) 27 Pac. 322; Fairfield v. McNany, 37 Iowa, 
 75. 
 
 AN UNSWORN ANSWER is not evidence. Empire Car Roofing 
 Co. V. Macey, 115 111. 390, 3 N. E. 417. 
 
 BILL OP EXCEPTIONS NECESSARY: The answer of the gar- 
 nishee, though in writing, is not part of the record, unless made so 
 by bill of exceptions, or recitals of the judgment entry. Decatur, 
 C. & N. O. Ry. Co. V. Crass, 97 Ala. 519, 12 South. 43; Gaines v. 
 Beirne, 3 Ala. 114; Bostwicls v. Beach, 18 Ala. 80. If in writing, 
 and identified by the judgment entry. It is considered part of the rec- 
 
 4 Drake v. Buck, 35 Iowa, 472. 
 
 (359) 
 
§ 289 LAW OF GARNISHMENT. [Ch. IS. 
 
 A Pure Pleading, not Admissible in Evidence. 
 
 § 289. On the other extreme, we find the court of 
 Wisconsin and other courts holding to the effect that, 
 after issue joined, the garnishee's answer is a pleading 
 merely, and stands upon the same ground as the de- 
 fendant's plea in an ordinary action at law; that, be- 
 ing a part of the record, the plaintiff is entitled to have 
 it read to the jury for the purpose of showing any ad- 
 missions of the garnishee made therein,^ but that it is 
 not evidence, for the garnishee, of any of the facts 
 stated therein ; that it takes no proof to overthrow it^ 
 and the garnishee is not entitled to have it read to the 
 jury." But, when the answer of the garnishee is treat- 
 ed as a pleading merely, it is not required to conform 
 to the strict rules of pleading. It may be set forth in 
 ordinary language, and the misuse of legal terms will 
 
 ord. Decatur, C. & N. O. Ry. Co. v. Crass, 97 Ala. 519, 12 South. 43; 
 Wyman v. Stewart, 42 Ala. 163; Jones v. Howell, 16 Ala. 695. 
 
 The answer is evidence, and not a pleading, and no part of the 
 record, unless included in a bill of exceptions. Brainard v. Sim- 
 mons, 58 Iowa, 464, 12 N. W. 484; Id., 67 Iowa, 646, 21 N. W. 27. 
 
 CONTRA: Held, that the interrogatories and answers thereto by 
 the garnishee are part of the record, without any bill of exceptions. 
 Bankin v. Simonds, 27 111. 352. 
 
 6 Prentiss v. Danaher, 20 Wis. 311. 
 
 8 Keep V. Sanderson, 12 Wis. 352; Cushing v. Laird, 6 Ben. 408, 7 
 Am. Law Rev. 762, Fed. Cas. No. 3,509; Dawkins v. Gault, 5 Rich. 
 Law (S. C.) 151; Zanz v. Stover, 2 N. M. 29; Myatt v. Lockhart, 
 9 Ala. 91; Price v. Mazange, 31 Ala. 701; Sevier v. Throckmorton, 
 33 Ala. 512; Lasley v. Sisloff, 7 How. (Miss.) 157; Smith v. Heid- 
 ecker, 39 Mo. 157; Davis v. Knapp, 8 Mo. 657; McEvoy v. Lane, 9 
 Mo. 48. 
 
 Held that, when the plaintiff ofCers the disclosure in evidence, the 
 garnishee is entitled to have the whole of it read to the jury. God- 
 den V. Pierson, 42 Ala. 370. 
 (360) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 291 
 
 not prejudice the garnishee when the facts are made to 
 appear,' 
 
 The Garnishee's Refusal to Answer. 
 
 Special Appearance to Raise Objections. 
 
 § 290. The garnishee should appear specially, to 
 raise any objection to the sufficiency of the proceedings 
 against him, or the right of the plaintiff to require him 
 to answer thereunder; for, although he cannot waive 
 any of the defendant's rights, or confer jurisdiction up- 
 on the court by appearing and answering, without ob- 
 jection, under defective proceedings, he can waive 
 many of his own rights.* 
 
 Improper Questions. 
 
 § 291. But, having appeared and submitted to ex- 
 amination, the garnishee may safely refuse to answer 
 any questions concerning matter fully and explicitly 
 stated in answer to previous interrogatories ; ^ or en- 
 tirely impertinent; ^° or which, being self-incriminat- 
 
 7 Ashby V. Watson, 9 Mo. 235; Case v. Dewey, 55 Mich. 116, 20 N. 
 W. 817. 
 
 8 See ante, §§ 253, 270. • 
 
 In Iowa, It is lield that the garnishee, having neglected to make 
 demand for his fees and mileage, or object to their nonpayment, at 
 the time the summons was served upon him, or at some other time 
 before the day appointed for making answer, could not, upon com- 
 ing into court, demand payment of them before answering. Stock- 
 berger v. Lindsey, 65 Iowa, 471, 21 N. W. 782. 
 
 9 Mack V. Brown, 20 Mich. 335; Carrique v. Sidebcttom, 3 Mete. 
 (Mass.) 297. Compare UUmeyer v. Ehrmann, 24 La. Ann. 32. 
 
 10 Nash v. Gale, 2 Minn. 310; Mack v. Brown, 20 Mich. 335; Wood 
 V. Wall, 24 Wis. 647; Humphrey v. Warren, 45 Me. 216; Callender 
 v. Furbish, 46 Me. 226; Warner v. Perkins, 8 Cush. (Mass.) 518; State 
 Nat. Bank v. Boatner, 39 La. Ann. 843, 2 South. 589; Corbyn v. Boll- 
 
 (361) 
 
§ 291 LAW OF GARNISHMENT. [Ch. 13 
 
 ing, might expose him to a criminal prosecution, or be 
 used against him in such a prosecution; " or which he 
 can answer onlj' by divulging privileged communica- 
 tions.^^ Some of the courts also hold that the gar- 
 nishee cannot be required to answer any question 
 which might impair or impeach his title to real es- 
 tate/^ or deprive him of a defense to an action against 
 him by the principal defendant." 
 
 man, 4 Watts & S. (Pa.) 342; Knapp v. Levanway, 27 Vt. 298. But 
 see Prince v. Heenan, 5 Minn. 347 (Gil. 279). 
 
 11 Boardman v. Roe, 13 Mass. 104; Neally v. Ambrose, 21 Pick. 
 (Mass.) 185. 
 
 A statute in Michigan provides that the garnishee's disclosure 
 shall not be used against him in any criminal prosecution, except 
 for perjury in making it. How. Ann. St. § 8084. 
 
 12 Shaughnessy v. Fogg, 15 La. Ann. 330; State Nat. Bank v. 
 Boatner, 39 La. Ann. 843, 2 South. 589. 
 
 But a garnishee cannot, on the ground that his knowledge is priv- 
 ileged as a professional secret, avoid answering questions tending 
 to show to whom the property in his possession belongs, or how he 
 has disposed of it, or use it as a pretext to conceal the defendant's 
 property in his possession. Id.; Comstock v. Paine, 18 La. 479; 
 Williams v. Young, 46 Iowa, 140; White v. Bird, 20 La. Ann. 188, 96 
 Am. Dec. 393; State ex rel. Hardy v. Gleason, 19 Or. 159, 23 Pac. 817. 
 
 A wife cannot refuse to answer whether she has in her possession 
 property belonging to her husband, on the ground that it would be 
 giving testimony against him; for the law will presume that he 
 wants to pay his debts, and wants the garnishee charged if the 
 facts justify it. Thompson v. Silvers, 59 Iowa, 670, 13 N. W. 854. 
 Contra, Series v. Adsit, 102 Mich. 495, 60 N. W. 967. 
 
 13 Boardman v. Roe, 13 Mass. 104; Russell v. Lewis, 15 Mass. 126; 
 Moor V. Towle, 38 Me. 133. Compare Kearney v. Nixon, 19 La. Ann. 
 16; Battles v. Simmons, 21 La. Ann. 416. Contra, Bell v. Kendrick, 
 8 N. H. 520. 
 
 "The constitutional provision that no subject shall be compelled to 
 furnish evidence against himself does not relate to questions of 
 property." Devoll v. Brownell, 5 Pick. (Mass.) 448. 
 
 14 Gee V. Warwick, 2 Hayw. (N. C.) 354. 
 (362) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 292 
 
 Contumacious Refusal — Demanding Ruling before Answering. 
 
 § 292. If the garnisJiee contumaciously and design- 
 edly refuses to answer proper questions put to him, or 
 his answers are not responsive, he may be visited with 
 such penalty as the court may direct, under the stat- 
 ute governing the case, — usually, a judgment by de- 
 fault, the same as if he had entirely refused or neg- 
 lected to answer.^^ But, before passing judgment 
 against him for refusal to answer, the court should di- 
 rect the garnishee that the question he refuses to an- 
 swer is proper and pertinent, and thereafter give him 
 an opportunity to answer it.^° He has a right to have 
 the correctness of a proposed inquiry adjudicated by 
 the court, and is not bound to submit to any and everv 
 conceivable investigation without objection, or, if he 
 objects, become liable to pay the entire debt in the 
 principal action.^ ^ The action of the trial court in re- 
 fusing to pass judgment against the garnishee for his 
 
 15 Richardson v. White, 19 Ark. 24; Scamahorn y. Scott, 42 Iowa, 
 529; De Blanc v. Webb, 5 La. 82; Shaw v. Bunker, 2 Mete. (Mass.) 
 376; Patterson v. Bnckminster, 14 Mass. 144. 
 
 Though the garnishee deny all liability he cannot refuse to answer 
 pertinent questions, eliciting the facts. If he does, he may be chai-- 
 ged; for he puts his conclusion of law in the place of that of the 
 court, and denies the court opportunity to test its correctness. Mans- 
 field v. New England Express Co., 58 Me. 35. 
 
 CONTEMPT: Held, that a refusal to answer puts the garnishee 
 in contempt of court, for which he may be punished; but no judg- 
 ment can be passed against him therefor. Hamill v. Champlin, 12 
 R. I. 124; Falk v. Flint, Id. 14; Hibernia Savings & Loan Soc. v. 
 Superior Court of Inyo Co., 56 Cal. 265. 
 
 16 Wood V. Wall, 24 Wis. 647. 
 
 It Is the duty of the court to direct the garnishee what questions 
 he should answer, and what he may safely decline to answer. 
 Mansfield v. New England Express Co., 58 Me. 35. 
 
 IT Sawyer v. Webb, 5 Iowa, 314; Simon v. Ash^ 1 Tex. Civ. App. 
 
 (363) 
 
§ 293 LAW OF GARNISHMENT. [Ch. 13 
 
 refusal to answer a pertinent question, being an exer- 
 cise of its discretion, will not be reviewed on appeal/' 
 
 When Ans\7er may be Made. 
 
 Under Writs Contemplating Interrogatories or Further Notice before* 
 Answer. 
 
 § 293. Under some statutes, the service of the writ 
 merely operates as an attachment of the property of 
 the defendant in the garnishee's possession, and the 
 debts owing by him to the defendant, and he is not 
 required to answer till interrogatories are served on 
 him, or he is notified to appear at a stated time and 
 place and make answer. ^^ Under such statutes, of 
 course, the garnishee cannot be put in default for not 
 
 202, 20 S. W. 719; State Nat. Bank v. Boatner, 39 La. Ann. S43, 2 
 South. 589. 
 
 18 Worthington v. Jones, 23 Vt. 546, 550; Knapp v. Levanway, 27 
 Vt. 298. 
 
 is> Case V. Noyes, 16 Or. 329, 39 Pac. 104; McCourtie v. Davis, 2 Gil- 
 man (III.) 298; Wooding v. Puget Sound Nat. Bank, 11 Wash. 527, 40 
 Pac. 223. 
 
 DEFAULT BEFORE FILING INTERROGATORIES: "Where the 
 record stated that the garnishee was called, failed to appear, and was 
 thereupon defaulted, held, that it was not necessary for the plaintiff to 
 prepare and propound in advance the interrogatories contemplated by 
 the statute. If, when called, he answers, it is then the duty of the 
 party who seeks to charge him to have the interrogatories propounded 
 and the answers taken, either through a commissioner or otherwise, as 
 the court may direct. Where he fails to appear, however, the filing of 
 the interrogatories with the clerk is not necessary to entitle the plain- 
 tiff to a default." Parmenter v. Childs, 12 Iowa, 22. 
 
 WAIVER: B.y appearing and answering, the garnishee waives his 
 right to have his answer taken by commissioner in his own county, 
 and judgment may be passed against him for defective answer. Wal- 
 ter A. Wood Mowing & Reaping Mach. Co. v. Edwards (Tex. Civ. 
 App.) 29 S. W. 418. 
 (364) 
 
Oh. 13] ANSWER OF THE GAKNISHEE. § 294 
 
 answering, and no answer is required until tlie inter- 
 rogatories are filed for him to answer, or he is notified 
 to appear for that purpose, or the other requirements 
 of the statute to enable the plaintiff to demand an an- 
 swer have been complied with.^" 
 
 Under Writs Requiring Appearance and Ansicer loithout Furthei' 
 Notice. 
 
 § 294. The answer should not be made before the 
 time appointed therefor in the summons, but cannot be 
 treated as premature unless excepted to for that rea- 
 son, and then it may be cured by amendment.^^ On 
 
 20 Cohn V. Tmman,'66 Tex. 98, 18 S. W. 111. 
 INTERROGATORIES BEFORE DEFAULT: "It was irregular to 
 
 take the default until interrogatories were exliibitecl for the garnishee 
 to answer. Until then there was nothing for him to answer, and he 
 was not bound to appear." Stickley v. Little, 29 111. 315. 
 
 "Until the creditor had filed interrogatories, he is not in a position to 
 demand an answer." Michigan Cent. Ry. Co. v. Keohane, 31 111. 144. 
 
 "The plaintiffs had no right, at the April term, on filing interroga- 
 tories, to take a conditional judgment. * * * They [the garnishees] 
 had until the third day of the next succeeding term in which to file 
 their answers." Towner v. George, 53 111. 168. 
 
 NOTICE TO ANSWER BEFORE COMMISSIONER: "Where a 
 commissioner is appointed to take the answer of the garnishee, and 
 the court does not fix the time and place for the answer to be taken, 
 it is to be inferred that the intention of the court was that the com- 
 missioner should fix the time and place. This the commissioner may 
 do by serving a notice on the garnishee of the time and place at 
 which he is to answer. We know of no other way. * * * He 
 could not do it by a mere mental determination. * * * No notice 
 having been served upon the garnishee in these cases of any time or 
 place fixed by the commissioner for taking his answers, he was not, 
 we think, in default for not giving his answers." Thomas v. Hoffman, 
 62 Iowa, 125, 17 N. W. 431. 
 
 21 Plant v. Mutual Life Ins. Co., 92 Ga. 636, 19 S. E. 719; Burrus v. 
 Moore, 63 Ga. 405, 409. 
 
 (365) 
 
§ 295 LAW OF GARNISHMENT. [Ch. 13 
 
 k 
 
 the other hand, it should be made at the time named 
 therefor in the writ;^^ and, if the time for answering 
 is accidentally omitted, the garnishee must, neverthe- 
 less, answer within the time allowed by the statute.^' 
 
 CouH may Extend (he Time. 
 
 § 295. But the court may, upon cause shown, allow 
 additional time for answering,^* or, in the exercise of 
 its discretion, refuse further time.^^ But, the case 
 having been called, and the plaintiff having demanded 
 a judgment against the garnishee for his failure to an- 
 swer, held, that it was error for the trial court to al- 
 low th<^ attorney for the garnishee further time "to 
 look into the matter," and see if he had a defense, with- 
 out giving any reason or explanation for his failure to 
 file his answer before, the statute declaring that, for 
 failure to answer before a given time, the plaintiff 
 should be entitled to judgment; ^^ but refusal to enter 
 
 22 Emanuel v. Smith, 38 Ga. 602. 
 
 When the term at which the writ is made returnable is abolished, 
 and all matters set over to the next term, the garnishee must answer 
 at such next term. Mutual Life Ins. Co. v. Moss, 93 Ga. 272, 20 S. 
 E. .308. 
 
 Held, that the garnishee has the whole term after service in which 
 to file his affidavit, Pbetteplace v. Lincoln, 1 R. I. 287; although judg- 
 ment is taken against the defendant in the first part of the term, Sweet 
 V. Read, 12 R. I. 121. 
 
 2 3 Hearn v. Adamson, 64 Ga. 608. 
 
 An appearance to answer is a waiver of the irregularity of the writ 
 in appointing an Impossible time. Wellover v. Soule, 30 Mich. 481. 
 
 24 Talladega Mercantile Co. v. McDonald, 97 Ala. 508, 12 South. 34; 
 Karnes v. Pritchard, 36 Mo. 135; Lorman v. Phoenix Ins. Co., 33 Mich. 
 65; Barber v. Howd, 85 Mich. 221, 48 N. W. 539; Proseus v. Mason, 
 12 La. 16; Emanuel v. Smith, 38 Ga. 602. 
 
 2 5 Lehman v. Hudman, 85 Ala. 135, 4 South. 741. 
 
 2 6 Bearden v. Metropolitan St. Ry. Co., 82 Ga. 605, 9 S. E. 603. 
 (366) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 296 
 
 default against a garnishee for not answering before 
 the case is called is not error.^' 
 
 Answer may be Made of Course, at Any Time before Default Entered, 
 and by Permission Afterwards. 
 
 § 296. In the absence of any order of court allow- 
 ing additional time, the garnishee may make answer 
 at any time before default for want thereof has been 
 entered."* And, though judgment has been entered 
 against the garnishee for want of answer, it is in the 
 discretion of the trial court to set it aside, on the com- 
 ing in of the garnishee's answer, showing good and 
 sufiScient legal excuse for not answering before."' 
 The order setting aside the default should fix the time 
 within which the answer is to be made.^° 
 
 27 McCallum V. Brandt, 48 Ga. 439. 
 
 2 8 Talladega Mercantile Co. v. McDonald, 97 Ala. 508, 12 South. 34; 
 Penn v. Pelan, 52 Iowa, 535, 3 N. W. 540; McCallum v. Brandt, 48 
 Ga. 439. 
 
 Held, that default for want of answer cannot be entered against 
 the garnishee till the plaintiff has recovered judgment in the main 
 action against the defendant. Arnold v. Gullatt, 68 Ga. 810; Rose 
 V. Whaley, 14 La. Ann. 374. 
 
 28 Goodrich v. Hopkins, 10 Minn. 162 (Gil. 130); Russell v. Freed- 
 man's Sav. Bank, 50 Ga. 575; Talladega Mercantile Co. v. McDon- 
 ald, 97 Ala. 508, 12 South. 34. See, also, post, § 386. 
 
 After default the garnishee cannot answer as a matter of right. 
 McDonald v. Rennel, 27 Law Rep. 157, Fed. Cas. No. 8,765. 
 
 Held that, when default for want of answer had been entered, and 
 afterwards the garnishee appeared and made answer, and the cause 
 was by consent of the parties adjourned, and further proceedings had, 
 judgment could not thereafter be entered against the garnishee for 
 his failure to answer. Lorman v. Phoenix Ins. Co., 33 Mich. 65. 
 
 30 troodrlch v. Hopkins, 10 Minn. 162, Gil. 130. 
 
 (367) 
 
§ 298 LAW OF GARNISHMENT. [Ch. 13 
 
 Default against Plaintiff fw not Taking Ansioer. 
 
 § 297. If the garoishee appears at the appointed 
 time, ready to answer, and the plaintiff declines to 
 take the answer, the garnishee should be discharged,^^ 
 unless a good cause appears for not taking it then,'^ 
 in which case the garnishee may, at any time after- 
 wards, apply to the court to ha^e it taken.* In pro- 
 ceedings under statutes which do not require the gar- 
 nishee to answer till further notice or interrogatories 
 are served on him, it has been held that these must be 
 served within the time limited by law."' 
 
 How the AnsTurer sliould be Made. 
 
 § 298. Some of the statutes contemplate an oral ex- 
 amination of the garnishee in open court, while others 
 authorize the filing of a written answer, in the first in- 
 stance, at least. Others authorize the officer sum- 
 moning the garnishee to take his answer at the same 
 time, or intend that it shall be taken before a commis- 
 sioner, and many of them provide various modes, to 
 
 31 Ogden V. Mills, 3 Cal. 253. See, also, post, § 383. 
 
 Held, that the failure of the plaintlfl: to appear before the justice 
 on the return of the writ operated as a discontinuance, which the 
 garnishee could not waive, and bind the defendant. Johnson v. Dex- 
 ter, 38 Mich. 695. 
 
 3 2 Boyet V. Hawkins, 86 Iowa, 40, 52 N. W. 659. 
 
 *Id. 
 
 3 3 Case V. Noyes, 16 Or. 539, 21 Pac. rto. 
 
 Delay of two years after serving the garnishment, before citing 
 the garnishee to answer, held to amount to an abandonment of the 
 proceeding. Wooding v. Puget Sound Nat. Bank, 11 Wash. 527, 40 
 Pac. 223. j_ 
 
 A delay of one year entitles the garnishee to presume the writ has 
 been abandoned. Cohn v. Tillman, 06 Tex. 98, 18 S. W. 111. 
 (368) 
 
■Ch. 13] ANSWEE OF THE GARNISHEE. § 298 
 
 suit the convenience of the parties or the circumstan- 
 ces of the different cases/* These matters are usually 
 fully covered by the statutes, vrhich furnish a complete 
 guide. If a written answer is filed, it should be enti- 
 tled in the case, or in some manner identified with it,'^ 
 ^nd should otherwise comply with the rules of plead- 
 ing and practice pertaining to judicial papers; but, 
 ■when the disclosure is taken in open court, orally, and 
 reduced to writing by the judge or other officer of the 
 court, it need not be signed by the garnishee, although, 
 probably, it always should be.^" The plaintiff has the 
 undoubted right to demand that the garnishee answer 
 under oath, especially if tcie statute so direct; ^^ but, 
 •even then, it is merely the plaintiff's privilege, and, if 
 he does not require it, an answer without oath is suffi- 
 cient.^* 
 
 8* When statutes authorize the officer to take the answer In certain 
 -cases upon the direction of the plaintiff, the request is the officer's 
 protection, not his authority. His writ is his authority. Kenosha 
 Stove Co. V. Shedd, 82 Iowa, 540, 48 N. W. 933. 
 
 3 5 An erroneous date in the margin, not referred to in the body of 
 the answer, is no part of it, and does not show that it was not made 
 for the case in which it was filed. Eddy v. Providence Mach. Co., 
 15 R. I. 7, 22 Atl. 1116. 
 
 30 Sutherland v. Burrill, 82 Mich. 13, 45 N. W. 1122; Newell v. 
 :Blair, 7 Mich. 103. 
 
 87 Oliver v. Chicago & A. Ry. Co., 17 111. 587; Cornell v. Payne, 
 115 111. 63, 3 N. E. 718; Chicago, R. I. & P. Ry. Co. v. Mason, 11 111. 
 App. 525; Empire Car Roofing Co. v. Macey, 115 111. 390, 3 N. E. 417; 
 Plant V. Mutual Life Ins. Co., 92 Ga. 636, 19 S. E. 719. 
 
 3 8 Sutherland v. Burrill, 82 Mich. 13, 45 N. W. 1122; Maynards v. 
 Oornwell, 3 Mich. 311; Roberts v. Landecker, 9 Cal. 266. 
 
 LAW GARNISH. — 24 (369) 
 
§ 299 LAW OF GARNISHMENT. [Ch. 13. 
 
 By Whom Answer should be Made. 
 
 The Plaintiff has a Right to Examine the Garnishee Personally. 
 
 § 299. If the writ is issued in pursuance of a stat- 
 ute directing that the garnishee appear in court, in re- 
 sponse to the summons, and answer such questions as 
 may be put to him concerning the property in his hands- 
 and the debts due from him belonging to the defend- 
 ant, he cannot deprive the plaintiff of his right to a 
 personal examination by filing a written answer,'" nor 
 by sending an agent or attorney to make answer for 
 him. He must answer in person.*" But the right to 
 require a personal examina+ion is the plaintiff's priv- 
 ilege, and, if he does not object, an answer in writing 
 or by agent is sufficient, and the liability of the gar- 
 nishee will not be affected by the manner in which it is 
 made.*^ Where there are several joint garnishees, 
 one may answer for all, and the answer will be suffi- 
 cient, unless the plaintiff excepts at the time, and ap- 
 plies to the court to require the others to answer indi- 
 vidually.*^ The plaintiff, having permitted the gar- 
 nishee to file a written answer, should still be allowed 
 to examine him orally, if the answer filed is meager, 
 
 so Penn v. Pelan, 52 Iowa, 535, 3 N. W. 540; Scales v. Swan, 9 
 Port. (Ala.) 163; Brainard v. Simmons, 58 Iowa, 464, 9 N. W. 382; 
 Barber v. Howd, 85 Mich. 221, 48 N. W. 539. 
 
 40 Cornell v. Payne, 115 111. 63, 3 N. B. 718; Diclison v. Morgan, 7 
 La. Ann. 490. 
 
 41 Barber v. Howd, 85 Micli. 221, 48 N. W. 539; Roberts v. Lan- 
 declier, 9 Cal. 266. 
 
 4 2 Hennessey v. Farrell, 4 Cush. (Mass.) 268; Gerry v. Gerry, 10 
 Allen (Mass.) 160; Anderson v. Wanzer, 6 Miss. 587, 37 Am. Dec. 
 170. 
 
 (370) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 300 
 
 indefinite, or evasive.*' But, if the statute does not 
 give the plaintiff a right to examine the garnishee 
 orally in open court, he cannot demand it; ** and the 
 garnishee may answer by letter directed to the judge 
 of the court, or by his attorney, or in any other man- 
 ner that the statute under which the proceedings are 
 had may authorize, and the court direct.*^ 
 
 Who may Answer for a Corporation as Garnishee. 
 
 § 300. As, from the nature of a corporation, it can 
 act only through its officers and agents, the right of 
 the plaintiff to examine the garnishee personally is 
 confined to proceedings against natural persons.*" 
 Corporations answer by their officers and agents; but 
 it is not every officer or agent of a corporation that is 
 authorized to answer for it, or can bind it by answer- 
 ing. None but the proper officers or agents can do 
 this;*^ and who are proper persons to answer de- 
 pends upon the statute regulating the proceeding. 
 Usually, the person served may answer for the corpo- 
 ra Wright V. Swanson, 46 Ala. 708; Seamon v. Bank, 4 W. Va. 339; 
 Thompson v. Silvers, 59 Iowa, 670, 13 N. W. 854. 
 
 a Sliafer Iron Co. v. Iron Circuit Judge, 88 Mich. 464, 50 N. W. 389; 
 Elwood V. Cowley, 64 Iowa, 68, 19 N. W. 857. 
 
 *5 Whitworth v. Pel ton, 81 Mich. 98, 45 N. W. 500; Macomber v. 
 Wright, 35 Me. 156. 
 
 *|5 Bailey v. Union Pac. Ry. Co., 62 Iowa, 354, 17 N. W. 567; Bray 
 V. Wallingford, 20 Conn. 416. 
 
 Held, that plaintiff cannot require any agent of a corporation to 
 submit to personal examination in circuit court. Shafer Iron Co. 
 V. Iron Circuit Judge, 88 Mich. 470, 50 N. W. 389. Contra, Bailey v. 
 Union Pac. Ry. Co., above. See, also, Baltimore & O. Ry. Co. v. 
 Gallahue, 12 Grat. (Va.) 655; Knox v. Protection Ins. Co., 9 Conn. 
 430, 25 Am. Dec. 33. 
 
 *^ Karp v. Citizens' Nat. Bank of Saginaw, 76 Mich. 679, 43 N. W. 
 
 (371) 
 
§ 300 LAW OF GARNISHMENT. [Ch. 13 
 
 ration, whoever he may be; ** but he is not the only 
 person who can answer for it.*' Any officer having 
 knowledge of the facts, and whom the corporation may 
 
 680; Decatur, C. & N. O. Ry. Co. y. Crass, 97 Ala. 519, 12 South. 43. 
 
 A bookkeeper is not such an officer. Pettit v. Muskegon Booming 
 Co., 74 Mich. 214, 41 N. W. 908. 
 
 Held, that the cashier of a bank is not a proper officer. Branch 
 Bank v. Poe, 1 Ala. 396. 
 
 Held, that a corporation garnishee may answer by its attorney. 
 Head v. Merrill, 34 Me. 586. Contra, Plant v. Mutual Life Ins. Co., 
 92 Ga. 636, 19 S. B. 719. 
 
 Held, that an answer signed and sworn to by the vice president of 
 the garnishee is, prima facie, by a proper person. Gerhard Hardware 
 Co. V. Texas Cotton-Press Co. (Tex. Civ. App.) 26 S. W. 168. 
 
 The treasurer of a savings association may answer for it. White v. 
 Springfield Inst, for Sav., 134 Mass. 232. 
 
 CORPORATE SEAL AFFIXED TO ANSWER: Held, that the 
 secretary of a corporation is a proper person to make answer under 
 oath, and affix the corporate seal. Oliver v. Chicago & A. Ry. Co., 17 
 111. 587. 
 
 Held, that a municipal corporation may answer by the treasurer, on 
 whom service was made, and the answer need not be under the cor- 
 porate seal. Montgomery v. Van Dorn, 41 Ala. 505. 
 
 A disclosure by the clerk of a school district, in the presence and 
 with assistance of the prudential committee, binds the district. Udall 
 V. School Dist. No. 4, 48 Vt. 588. 
 
 Held, that the answer must be made by the chief officer of the cor- 
 poration, and under its corporate seal. Callahan v. Hallowell, 2 Bay 
 (S. C.) 8; Baltimore & O. Ry. Co. v. Gallahue, 12 Grat. (Va.) 655; 
 Branch Bank v. Poe, 1 Ala. 396; Planters' & Merchants' Bank v. 
 Leavens, 4 Ala. 753. 
 
 OATH OF AUTHORITY: An Alabama statute requires that, when 
 a corporation answers as garnishee, the agent or officer answering shall 
 make oath that he has authority. This is for the protection of both 
 plaintiff and garnishee, and an answer without this oath may be 
 ignored. Decatur, C. & N. O. Ry. Co. v. Crass, 97 Ala. 519, 12 South. 
 43. 
 
 4 8 Shafer Iron Co. v. Iron Circuit Judge, 88 Mich. 470, 50 N. W. 389; 
 Lorman v. Phoenix Ins. Co., 33 Mich. 65. 
 
 *o Duke V. Rhode Island Locomotive Works, 11 R. I. 599. 
 (372) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 301 
 
 authorize for the purpose, may make disclosure for 
 it;'" but the plaintiff is entitled to an answer by one at 
 least presumably possessing the requisite information 
 to answer truly/^ 
 
 What the Answer should State, and Hovr. 
 
 ShovM Fully and Impartially State All Facts Affccfing- Garnishee's 
 Liability. 
 
 § 301. The garnishee has a right to state the case 
 fully in his answer, and cannot be confined to answer 
 ing categorical questions.'" He should not rest upon 
 a statement of his conclusions of law concerning his 
 obligations to the defendant, but should let the facts 
 appear, and leave the court to determine what is their 
 effect.''' The principal attention, in drafting the an- 
 swer, should be directed to the end that all facts in 
 any way affecting the liability of the garnishee may be 
 fully stated, and as definitely and positively as the 
 knowledge of the garnishee will permit.'* But, this 
 
 BO Bailey v. Union Pac. Ry. Co., 62 Iowa, 354, 17 N. W. 567; Whit- 
 worth V. Pelton, 81 Mich. 98, 45 N. W. 500; Chicago, R. I. & P. Ey. 
 Co. V. Mason, 11 111. App. 525. 
 
 151 Decatur, C. & N. O. Ry. Co. v. Crass, 97 Ala. 519, 12 South. 4.3; 
 Plant V. Mutual Life Ins. Co., 92 Ga. 636, 19 S. B. 719. 
 
 B2 Bebb V. Preston, 1 Iowa, 460, 3 Iowa, 325; Cross v. Brown (K. 
 I.) 33 Atl. 147, 159. 
 
 63 Shaw V. Bunker, 2 Mete. (Mass.) 376; Mortland v. Little, 137 
 Mass. 340; Toothaker v. Allen, 41 Me. 324; Mansfield v. New Eng- 
 land Exp. Co., 58 Me. 35; Rutherford v. B'uUerton, 89 Ga. 353, 15 S. E. 
 471. 
 
 64 Whitman v. Hunt, 4 Mass. 272; Graves v. Wallier, 21 Pick. 
 (Mass.) 160; Edler v. Hasche, 67 Wis. 653, 660, 31 N. W. 57; Cram 
 V. Gould, 46 111. 293; Hitchcock v. Galveston Wharf Co., 50 Fed. 263; 
 Baker's Appeal (Pa. Sup.) 3 Atl. 766. 
 
 PLAINTIFF ENTITLED TO FULL DISCLOSURE: When the 
 
 (373) 
 
§ 302 LAW OF GARNISHMENT. [Ch. 13 
 
 appearing to have been done, the answer will always 
 be sufficient/^ It is neither safe nor proper for him 
 to state that any alleged claim is colorable, collusive, 
 or fraudulent. He should state what he knows or is 
 informed of the claim, and leave the plaintiff to bring 
 in the claimant to prove his rights.^" Equal care 
 should be used to guard against admitting a liability 
 when none exists, for his admissions can cut off the 
 rights of no one but himself." 
 
 Effect of Failure to State Facts Correctly in the Answer. 
 
 § 302. It has been held that, once having admitted 
 liability, he is estopped thereafter to deny it.'^ How- 
 ever, the statement does not find support in other de- 
 cisions. Failure to observe these rules may, on the 
 one hand, result in charging the garnishee, when he 
 should not be charged, and, on the other, rendering 
 
 garnishee cannot speak positively, he should state what facts he 
 knows, and what he believes, together with the grounds of his belief. 
 Plant V. Mutual Life Ins. Co., 92 Ga. 636, 19 S. E. 719. 
 
 "The plaintiff was entitled to have, from garnishee, a specific and 
 definite statement of 'what effects, if any, of defendant he had in his 
 possession when the writ was served.' The effects in this case being 
 notes and accounts, the garnishee should have stated the names of 
 the parties owing same, the amount and date of each, when due, 
 and rate of interest, if any." Cullers v. City Bank of Sherman (Tex. 
 Civ. App.) 27 S. W. 900. 
 
 5 5 Harris v. Aiken, 3 Pick. (Masb.) 1; Ormsby v. Anson, 21 Me. 23; 
 Eice V. Whitney, 12 Ohio St. 358; Wilhelmi v. HafCner, 52 HI. 222; 
 Work V. Brown, 38 Neb. 498, 56 N. W. 1082. 
 
 5 8 Phipps V. Rieley, 15 Or. 494, 16 Pac. 185; McAuliffe v. Farmer, 
 27 Mich. 76; Conshohocken Tube Co. v. Iron Car Equipment Co., 167 
 Pa. St. 589, 31 Atl. 949. 
 
 6 7 Hosley v. Scott, 59 Mich. 420, 26 N. W. 659; Knisely v. Evans, 
 34 Ohio St. 158; Hirth v. Pfeifle, 42 Mich. 31, 3 N. W. 239; Wether- 
 wax V. Paine, 2 Mich. 555. 
 
 5s Woodbridge v. Winthrop, 1 Root (Conn.) 557. 
 (374) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 303 
 
 the proceediugs no protection to him against fnture 
 liability to persons interested, including the principal 
 defendant himself.'"" In the first place, the plaintiff 
 is entitled to have disclosed every fact tending to 
 show that the garnishee is chargeable, and, for his 
 failure to state all these fa'cts, so far as he is able, laay 
 except to the sufficiency of the an?iwer, file interroga- 
 tories, demand a trial on the disclosure, or have such 
 other relief as the statute under which the proceed- 
 ings are conducted may authorize, and, if the answer 
 is manifestly equivocal or evasive, may, under many 
 statutes, move for judgment against the garnishee up- 
 on that ground, all of which will be more fully consid- 
 ered hereafter."" 
 
 May State Facts on Information and Belief — Presumption of Truth. 
 
 § 303. In the next place, the garnishee should, for 
 his own protection, state every fact tending to show ' 
 that he should not be charged; "^ and, in this, he is 
 not confined to those facts which he can swear to of 
 his own knowledge, but may state, upon information 
 and belief, whatever he has heard from claimants or 
 others,"^ and may incorporate into and make a part 
 of his answer the affidavit of any person, or any print- 
 
 59 See ante, §§ 206, 207. 
 
 60 Post, §§ 307, 308, 312. 
 
 61 Drake v. Lake Shore & M. S. Ry. Co., '69 Mich. IGS, 171, 37 N. 
 W. 70; John R. Davis Lumber Co. v. First Nat. Bank of Milwaukee, 
 84 Wis. 1, 54 N. W. 108. See, also. Black v. Brisbin, 3 Minn. 360 
 {Gil. 253), 74 Am. Dec. 762; ante, § 206, 207. 
 
 62 Sexton V. Amos, 39 Mich. 695, 697; Drake v. Lake Shore & M. 
 S. Ry. Co., 69 Mich. 168, 171, 37 N. W. 70; Crisp v. Ft. Wayne & 
 E. Ry. Co., 98 Mich. 648, 57 N. W. 1050; Grossman v. Grossman, 21 
 Pick. (Mass.) 21; Shaw v. Bunker, 2 Mete. (Mass.) 376; Fay v. Sears, 
 111 Mass. 154. 
 
 (375) 
 
§ 303 LAW OP GARNISHMENT. [Ch. 15 
 
 ed or written document, letter, or the like, which, in his- 
 opinion, may affect his liability.'" And the presump- 
 tion of truth of the answer extends to facts stated up- 
 on information and belief, or contained in the docu- 
 ments made part of the answer, as well as to matters 
 positively sworn to."* In Massachusetts, it is held 
 that the garnishee should swear that he believes to be- 
 true such statements as he incorporates into his an- 
 swer and which he cannot positively verify, and that,. 
 failing to do so, so much of the answer is merely nuga- 
 tory. °° 
 
 «3 Willard v. Sturtevant, 7 Pick. (Mass.) 194; Kelly v. Bowman,. 
 12 Pick. 383; Chase v. Bradley, 17 Me. 89; Bell v. Jones, 17 N. H. 
 307. 
 
 But held, that an afBdavit filed by the principal defendant during, 
 the examination of the garnishee, but not made a part of the gar- 
 nishee's answer, could not be considered in determining the liabil- 
 ity of the garnishee. Minchin v. Moore, 11 Mass. 90. 
 
 A letter being shown the garnishee on his examination, he identi- 
 fied the signature as genuine, but nothing was said of the contents- 
 of the letter. Held, that the letter was no part of the answer, and 
 its contents were not In evidence. Stackpole v. Newman, 4 Mass. 85. 
 
 6 4 Sexton V. Amos, 39 Mich. 695, 698; Grossman v. Grossman, 21 
 Pick. (Mass.) 21; Bostwick v. Bass, 99 Mass. 469; Fay v. Sears, 111 
 Mass. 154; First Nat. Bank of Clinton v. Bright, 126 Mass. 535; 
 Seward v. Arms, 145 Mass. 195, 13 N. E. 487; Bumham v. Dunn, 35 
 N. H. 556; Lackett v. Rumbaugh, 45 Fed. 23. 
 
 6 5 Hawes v. Langton, 8 Pick. (Mass.) 67; Kelly v. Bowman, 12. 
 Pick. (Mass.) 383; Born v. Staaden, 24 111. 320; John R. Davis Lum- 
 ber Co. V. First Nat. Bank of Milwaukee, 90 Wis. 464, 63 N. W. 1018. 
 
 But this would seem not to be generally required. Sexton v.. 
 Amos, 39 Mich. G95. 
 
 Held, that an answer not made under oath is no evidence for the 
 garnishee to prove any fact therein set up. Empire Car Roofing 
 Co. V. Macey, 115 111. 390, 3 N. B. 417. 
 (376) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 305 
 
 Cannot be Required to State Facts on Information. 
 
 § 304. Of course, the garnishee cannot be com- 
 pelled to make any letter or affidavit of any person a 
 part of his answer, or state anything upon informa- 
 tion and belief which he does not choose to, but may 
 take upon himself the responsibility of deciding the 
 truth or falsity of such statements, and stand the con- 
 sequence of an erroneous decision by being afterwards 
 compelled to make satisfaction to the true owner."" 
 If, for want of information, the garnishee is unable to 
 state any fact which he may deem important, as af- 
 fecting his liability, he should explicitly so declare, 
 and, having made the importance of the fact to ap- 
 pear, and that he has not sufficient knowledge to de- 
 termine it, the burden is then upon the plaintiff to 
 make out his case, the same as in an ordinary action."^ 
 
 Double Liability from Defective Answer. 
 
 § 305. The following are a few of the cases in which 
 the garnishee will be again liable for the amount gar- 
 nished, because of his failure to state facts within his 
 knowledge concerning the rights of third parties: 
 Failure to state that the debt or property sought to be 
 garnished is exempt from garnishment; "* failure to 
 disclose that other persons than the defendant claim 
 to own the property, or have an interest in it; "° fail- 
 ure to disclose that, before being summoned in the 
 
 66 Hawes v. Langton, 8 Pick. 67; Kelly v. Bowman, 12 Pick. 
 (Mass.) 383. 
 
 67 Crisp V. Ft. Wayne & B. Ry. Co., 98 Micli. 648, 57 N. W. 1050. 
 6 8 See ante, § 83. 
 
 6 9 See ante, §§ 206, 207. 
 
 (377) 
 
§ 307 LAW OP GARNISHiVtENT. [Ch. 13 
 
 present suit, he has been summoned as garnishee of 
 the defendant in a suit by another creditor;'" failure 
 to disclose a previous suit for the demand, in another 
 state, by the principal defendant; '^ failure to disclose 
 that the principal defendant has become a bankrupt, 
 and his property was in the hands of the assignee in 
 bankruptcy.'^ 
 
 Garnishee should Never Suffer Judgment by Default. 
 
 § 306. To this list we may add the cases in which 
 the garnishee has afterwards been held liable to the 
 principal defendant because of being unable to prove 
 that the demand sued on is the same upon which he 
 was charged as garnishee.'^ To avoid this calamity, 
 the garnishee should never allow a judgment to go 
 against him by default for want of answer, but should 
 make full answer, setting up sufficient facts to iden- 
 tify, clearly, the particular demand on which he is lia- 
 ble to the defendant, to the end that, when afterwards 
 sued by the defendant, be may make out his defense 
 by merely producing the record of the garnishment 
 suit. 
 
 Exceptions to the Sufficiency of the Answ^er. 
 
 § 307. If the disclosure made in court, or the an- 
 swer filed, by the garnishee, is not satisfactory to the 
 plaintiff, he must look to the statute under which the 
 proceedings are conducted to learn what course he 
 
 10 See ante, § 190. 
 
 71 Whipple T. Robbing, 97 Mass. 107. 
 7 2 Nugent V. Opdyke, 9 Rob. (La.) 453. 
 7 3 See ante, § 220. 
 (878) 
 
Ch. 13] ANSWER OF THE GAKNISHEE. § 307 
 
 should take; for the remedy is purely statutory and 
 artificial, the mode of conducting it is regulated and 
 defined by enactment,'* and there is no authority for 
 any action outside of it." Many of the statutes pro- 
 vide that, if the plaintiff deems the answer made to be 
 insufficient, he may file special interrogatories to draw 
 out the matter not stated; but he is not required to 
 avail himself of these statutes, and may take issue on 
 the answer as made.'° Any answer is sufficient, un- 
 less excepted to." In some states, judgment may be 
 rendered against the garnishee on the ground that his 
 answ:er is insufficient; '* or, it being evident that it is 
 
 74 Townsend v. Cass Circuit Judge, 39 Micli. 407; Smitli v. Hol- 
 land, 81 Mich. 471, 45 N. W. 1017; Everton v. Parker, 3 Wash. St. 
 331, 28 Pac. 536; Batchellor v. Richar-dson, 17 Or. 334, 21 Pac. 392. 
 
 7 5 See ante, § 6. 
 
 But held, that the court may, without express statutory authority, 
 require the garnishee to make his answer more specific by furnish- 
 ing a copy of the contract on which he relies as a defense. Lusk v. 
 Galloway, 52 Wis. 164, 8 N. W. 608. 
 
 7 6 Bebb V. Preston, 3 Iowa, 325; Hobson v. Kelly, 87 Mich. 187, 49 
 N. W. 533. 
 
 7T Illinois Cent. Ry. Co. t. Cobb, 48 111. 402. 
 
 Held, that taking issue on the answer does not waive the objection 
 that the answer is insufficient. Gerhard Hardware Co. v. Texas 
 Cotton Press Co. (Tex. Civ. App.) 26 S. W. 168. 
 
 '8 Melton V. Lewis, 74 Tex. 411, 12 S. W. 93; Gerhard Hardware 
 Co. V. Texas Cotton Press Co. (Tex. Civ. App.) 26 S. W. 168; De- 
 catur, C. & N. O. Ry. Co. V. Crass, 97 Ala. 519, 12 South. 43; Daw- 
 son V. Maria, 15 Or. 556, 16 Pac. 413. 
 
 A judgment by default is properly rendered against a garnishee 
 who, instead of answering the questions propounded, makes a gen- 
 eral denial of indebtedness, although the return of the officer execut- 
 ing the commission does not certify, as required by law, whether 
 the garnishee failed or refused to appear and answer. Selman v. 
 Orr, 75 Tex. 528, 12 S. W. 697. 
 
 ORDER TO ANSWER FURTHER: When, upon motion of the 
 
 (379) 
 
§ 307 LAW OF GARNISHMENT. [Ch. 13 
 
 made in bad faith, it may be treated as fraudulent, 
 and be disregarded/' There are other cases holding 
 that the disclosure may be stricken from the files for 
 that cause, and judgment nisi rendered,^" or the gar- 
 nishee ruled to show cause why judgment should not 
 
 plaintiff, the court requires the garnishee to answer more specifical- 
 ly upon certain matters, giving him one week in the next term of 
 court in which to amend his answer, default may be entered against 
 the garnishee if he fails to answer within that time; and such de- 
 fault should be made absolute at the same term at which it is en- 
 tered, and the garnishee rendered liable for the amount of the judg- 
 ment in the main action. Scamahorn v. Scott, 42 Iowa, 529. 
 
 OVERSIGHT: When the garnishee shows that the defect was an 
 oversight, and offers to amend, the judgment against him for the 
 insufficiency of the answer should be set aside. Walter A. Wood 
 Mowing & Reaping Mach. Co. v. Edwards (Tex. Civ. App.) 29 S. W. 
 418. 
 
 NOT GROUND FOR JUDGMENT: Under the Michigan justice 
 court act, it is held that the fact that the garnishee's answer is in- 
 sufficient cannot help the plaintiff, for only by it can he recover. 
 Lorman v. Phoenix Fire Ins. Co., 33 Mich. 65. 
 
 When the garnishee answered, and the court, considering the an- 
 swer insufficient, entered a judgment against him as for a default, 
 held, that the statute did not authorize such judgment, and it was 
 not conclusive against the garnishee in an action upon it Eddy v. 
 Providence Mach. Co., 15 R. I. 7, 22 Atl. IIIC. 
 
 7» Parker v. Page, 38 Cal. 522. 
 
 Upon the opinion that the disclosure was uncandid and evasive, 
 and that he had power to treat it summarily, the judge made an 
 order, reciting that the garnishees were in possession of property 
 belonging to the defendant, which was denied by the disclosure, 
 and ordered them to pay it into court. Held, that no such practice 
 was authorized. Townsend v. Cass Circuit Judge, 39 Mich. 407. 
 
 An answer, being on file, cannot be ignored. Threefoot v. Whittle 
 (Miss.) 15 South. 120. 
 
 80 Scales V. Swan, 9 Port. (Ala.) 163; Mims v. Parker, 1 Ala. 421; 
 White V. Kahn (Ala.) 15 South. 595; Brainard v. Simmons, 58 Iowa, 
 464, 9 N. W. 382. 
 (380) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 308 
 
 be rendered against him for not making a more spe- 
 cific answer/^ 
 
 The Extent of the Plaintiff's Right to Examine 
 the Garnishee. 
 
 § 308. Havins; discussed the matters concerning 
 which the garnishee cannot be required to answer,* we 
 now come to consider the plaintiff's right to examine 
 the garnishee, as given by statute. If the answer of 
 the garnishee is full and explicit upon all matters con- 
 cerning which it is sought to charge him, of course, 
 there is no cause for further examination.*'' But 
 some statutes allow questions to be put to the gar- 
 nishee as to his knowledge of property or debts owned 
 by the defendant and held or owed by other persons.! 
 The plaintiff has a right to require the garnishee to 
 answer any question calculated to elicit facts not pre- 
 viously disclosed, and which may tend to charge him,*'^ 
 although the answer may require the garnishee to 
 make a statement of his accounts with the defendant,"* 
 or subject the garnishee, or render him liable to per- 
 
 si Ileuwood V. American Legion of Honor, 2 Pa. Dist. 11. 170. See, 
 also, ante, § 292. 
 
 * See ante, §§ 290-292. 
 
 82 Mack V. Brown, 20 Micli. 335; Botsford v. Simmons, 32 Mich. 352. 
 
 t Bean v. Barney, 10 Iowa, 498; Cordes v. Kauffman, 29 Tex. 180. 
 Contra, State Nat. Bank v. Boatner, 39 La. Ann. 843, 2 South. 589. 
 
 S3 Grossman v. Grossman, 38 Mass. 21; Nutter v. Pramingham & 
 L. II. Co., 131 Mass. 231; Goulding v. Hair, 133 Mass. 78; Mansfield 
 V. New England Exp. Co., 58 Me. 35; Oberteuffer v. Harwood, 2 Mc- 
 Grary, 415, 6 Fed. 828. Compare Baxter v. Missouri, K. & T. Ry. 
 Co., 67 Barb. (N. Y.) 283. 
 
 84 Request V. The B. E. Clark, 13 La. Ann. 210. 
 
 (381) 
 
§ 309 LAW OP GARNISHMENT. [Ch. 13 
 
 sonal pecuniary loss or obligation,^'' or show that he 
 has been a party to a fraudulent conveyance." When 
 the cause is appealed, and tried de novo upon appeal, 
 the plaintiff may further examine the garnishee." 
 The length to which the examination may be extended 
 is governed by the sound discretion of the court try- 
 ing the case, at least to a great extent,*^ but should not 
 be limited to such an extent as to render the remedy 
 ineifectual.^" 
 
 Amending, Supplementing, Modifying, and 
 Contradicting tlie Disclosure. 
 
 Should be Liberally Allowed to Prevent Injustice. 
 
 § 309. Justice requires that, whenever, at any stage 
 of the proceedings before ultimate judgment, it is dis- 
 covered that any fact has been stated incorrectly, or in 
 terms so imperfect as to admit of an inference or an im- 
 plication not intended, or that, through inadvertence 
 or misapprehension, material facts have been wholly 
 oinitted in previous statements, opportunity should be 
 
 8 5 Devon V. Brownell, 5 Pick. (Mass.) 448; Neally v. Ambrose, 21 
 Pick. (Mass.) 185. Compare Bull v. Loveland, 10 Pick. (Mass.) 9. 
 
 S6 Neally v. Ambrose, 21 Pick. (Mass.) 185; Lamb v. Stone, H 
 Pick. (Mass.) 527; OberteufCer v. Harwood, 2 McCrary, 415, 6 Fed. 
 828; St. Louis Brokerage Co. v. Cronin, 14 Mo. App. 586. But see 
 Kearney v. Nixon, 19 La. Ann. 16; Battles v. Simmons, 21 La. Ann. 
 416. 
 
 8 7 Oliver v. Chicago & A. Ry. Co., 17 111. 587; Newell v. Blair, 7 
 Mich. 103; Isabelle v. Iron Cliffs Co.. 57 Mich. 120, 23 N. W. 613; 
 Barber v. Howd, 85 Mich. 221, 48 N. W. 539. 
 
 8 8 Warner v. Perkins, 8 Cush. (Mass.) 518; Worthington v. Jones, 
 23 Vt. 546; Knapp v. I^evanway, 27 Vt. 293. 
 
 83 Pickler v. Kainey, 4 Heisk. (Tenn.) 335; Devries v. Buchanan, 
 10 Md. 210. 
 (382) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 309 
 
 afforded for any further disclosures which are indis- 
 pensable to correct or prevent the occurrence of er- 
 rors; "'' and technical defects may be amended Avhen- 
 ever the answer is excepted to because of them."^ 
 
 "0 Collins V. Smith, 12 Gray (Mass.) 431; Winsted Banlc v. Adams, 
 97 Mass. 130; Carrique v. Sidebottom, 3 Mete. (Mass.) 298; Barber v. 
 Howd, 85 Micli. 221, 48 N. W. 539; Wing v. Nutter, 17 N. H. 25C; 
 Walter A. Wood Mowing & Reaping Mach. Co. v. Edwards (Tex. 
 Civ. App.) 29 S. W. 418; Cross v. Brown (R. I.) 33 Atl. 147, 158. 
 
 ON APPEAL: The case having been taken to the circuit court by 
 appeal, the garnishee may there amend or supplement the disclosure 
 made by him in justice court. Newell v. Blair, 7 Mich. 103; Leh- 
 man V. Hudman, 85 Ala. 135, 4 South. 741; Compare Buford v. Wel- 
 born. 6 Ala. 818; Taylor v. Kain, 8 Baxt. (Tenn.) 35. 
 
 ON SCIRE FACIAS: In response to summons to show cause why 
 judgment should not be rendered against him on his answer, gar- 
 nishee may show matters of hearsay by supplemental disclosure. 
 Drake v. Lake Shore & M. S. Ry. Co., 69 Mich. 168, 37 N. W. 70. 
 
 He may amend after judgment declaring his previous answer de- 
 fective and InsufHcient. Simon v. Ash, 1 Tex. Civ. App. 202, 20 S. 
 W. 719; Plant v. Mutual Life Ins. Co., 92 Ga. 636, 19 S. E. 719; 
 Walter A. Wood Mowing & Reaping Mach. Co. v. Edwards (Tex. Civ. 
 App.) 29 S. W. 418. 
 
 Held, that he cannot insist upon his right to make fui-ther answer 
 pending the decision of the court upon his refusal to answer. Ameri- 
 can Button Hole, Overseaming & Sewing Mach. Co. v. Burgess, 75 
 Me, 52. 
 
 ON THE TRIAL, he has the undoubted right to correct any mis- 
 takes made in his examination before the commissioner. Klauber v. 
 Wright, 52 Wis. 303, 8 N. W. 893. 
 
 AFTER REVERSAL OP JUDGMENT discharging the garnishee, 
 held, that he could file an amended answer showing that, before 
 writ of error was sent out, and after judgment discharging him, he 
 had paid his debt to principal defendant. Webb v. Miller, 24 Miss: 
 638, 57 Am. Dec. 189. 
 
 DISPUTING THE RECORDS: He may show that the minutes of 
 his disclosure which he has signed and sworn to before the justice 
 
 81 Plant V. Mutual Life Ins. Co., 92 Ga. 636, 19 S. E. 719; Burrus 
 V. Moore, 63 Ga. 405, 409. 
 
 (383) 
 
§ 310 LAW OF GARNISHMENT. [Ch. 13 
 
 Answer not Amendable of Course, but by Permission. 
 
 § 310. Ordinarily, the garnishee's amended and ad- 
 ditional answers are put in under the authority of the 
 court. His right is not absolute to make new and ad- 
 ditional statements at any and every possible point in 
 the course of proceedings in the cause. His right 
 ceases after filing his general answer, and replying in 
 detail to interrogatories propounded to him, unless, in 
 the exercise of the judicial discretion, he is permitted 
 to make some addition to supply deficiencies through 
 which, without it, irreparable injury might be incur- 
 red."^ Such discretion ought always to be used with 
 
 are not correct minutes of what lie disclosed; and refusal to allow 
 sucli evidence is error. The minutes are not such public records as 
 import absolute verity. Sutherland v. Burrill, 82 Mich. 13, 17, 45 N. 
 W. 1122. 
 
 9 2 Collins V. Smith, 12 Gray (Mass.) 431; Crerar v. Milwaukee & St. 
 P. Ry. Co., 35 Wis. 67; Smith v. brown, 5 Cal. 118; Stedman v. 
 Vickery, 42 Me. 132; Bell v. Strow, 59 Mo. 118; Soule v. Kennebec 
 lee Co., 85 Me. 166, 27 Atl. 92; Butler v. Wendell, 57 Mich. 62, 68, 
 23 N. W. 460; How. Ann. St. Mich. § 8071; Milliken v. Mannheimer, 
 49 Minn. 521, 52 N. W. 139; Stockton v. City of Burlington, 4 G. 
 Greene (Iowa) 84. 
 
 The only objection which could arise to allowing the garnishee to 
 amend his answer is that he might be Induced, by new suggestions 
 and new views, to put in an answer, varying from his first answer, 
 and not true in itself. But, when it is considered that, by any mode of 
 administering the law, the garnishee may take his own time and his 
 own counsel, and make such answer as he will, there seems to be no 
 more danger of falsification in the one cnne. than in the other. Hovey 
 V. Crane, 12 Pick. (JIass.) 167. 
 
 The discretion to allow amendments ought to be liberally exercised, 
 when the disclosure was made without aid of counsel. Allen v. 
 Hazen, 26 Mich. 142. 
 
 The garnishee should move to amend as soon as he discovers the 
 need of it. John R. Davis Lumber Co. v. First Nat. Bank of Milwau- 
 kee, 84 Wis. 1, 54 N. W. 108. 
 .(384) 
 
Oh. 13] ANSWER OF THE GAENISHEE. § 311 
 
 ■discrimination and care; and it may safely be pre- 
 sumed that such permission will never be given when 
 there is reason to apprehend that, if granted, it would 
 be the means of working injustice.*' 
 
 Some Amendments of Course, and Some ofRight. 
 
 § 311. Ordinarily, therefore, the garnishee may 
 amend his disclosure only on permission obtained from 
 the court; but there are some matters, such as correct- 
 ing the verification to the answer, which may be made 
 of course. °* In some cases the garnishee, very prob- 
 ably, has an absolute right to amend his answer, and 
 for the refusal of the court to allow it to be done may 
 assign error, and have the judgment against him re- 
 versed upon appeal. °° A garnishee who has answered 
 admitting liability, and afterwards learns that others 
 claim the property or debt which he had supposed to 
 belong to the defendant, and concerning which he has 
 
 08 Collins V. Smith, 12 Gray (Mass.) 431. 
 
 AMENDING EVASIVE ANSWERS: A garnishee who has filed 
 an answer clearly evasive ought not to be permitted to amend, as 
 such a practice might lead to frivolous delays. Davis v. Oakford, 11 
 La. Ann. 379; Tapp v. Green, 22 La. Ann. 42. 
 
 Great abuse might be practiced if too liberal indulgence were per- 
 mitted in this respect. Neilson v. Scott, 1 Rice, Dig. (S. 0.) 80. 
 
 The garnishee, having had ample opportunity to disclose facts 
 material to his defense, and having willfully or negligently refused 
 to do so, ought not to be allowed to amend so that his answer would 
 entitle him to be discharged. Thomas v. Fuller, 26 La. Ann. 625; 
 Pickler v. Rainey, 4 Heisk. (Tenn.) 335; Conner v. Allen, 3 Head 
 <Tenn.) 418. 
 
 A garnishee cannot be allowed to surprise the plaintiff by showing, 
 on the trial, what he might have put in by amended answer long 
 before. John R. Davis Lumber Co. v. First Nat. Bank of Milwaukee, 
 «4 Wis. 1, 54 N. W. 108. 
 
 81 Burrus v. Moore, 63 Ga. 405. 
 
 OB Alamo Ice Co. v. Yancey, 66 Tex. 187, 18 S. W. 499. 
 
 LAW GARNISH. 25 (385) 
 
§ 312 LAW OF GARNISHMENT. [Ch. 13 
 
 disclosed, has a right to bring such newly-discovered 
 matter to the attention of the court by an amended or 
 supplemental answer, and demand that such claimants 
 be made parties to the suit, or that he be discharged.'" 
 When the garnishee files an amended answer, the 
 plaintiff is entitled to an opportunity to examine him 
 further.^^ 
 
 The Construction and Effect to be Given to the 
 Garnishee's Answer. 
 
 Equivocal Statements — Language not Distorted. 
 
 § 312. The rule that doubtful statements are to be 
 taken most strongly against the party making them 
 has been applied to the disclosure of the garnishee; °* 
 but his language is not to be distorted or forced into 
 any unnatural construction, nor can inferences be 
 drawn from any real or supposed discrepancies in his 
 answer, against the fair and natural import of the lan- 
 
 9 8 Alamo Ice Co. v. Yancey, 66 Tex. 187, 18 S. W. 499; Ti-acy v. 
 McGarty, 12 R. I. 168; Lewis v. Dunlop, 57 Miss. 130; Fowler v. 
 Williamson, 52 Ala. 16; Batchellor v. Richardson, 17 Or. 334, 21 Pac. 
 392. 
 
 07 Hovey v. Crane, 12 Pick. (Mass.) 167. 
 
 8 Sebor v. Armstrong, 4 Mass. 206; Cleveland v. Clap, 5 Mass. 201; 
 Graves v. Walker, 21 Pick. (Mass.) 160; Sampson v. Hyde, 16 N. H. 
 492; Whitney v. Kelly, 67 Me. 377; Williams v. Housel, 2 Iowa, 154; 
 Bebb V. Preston, 3 Iowa, 325; Ormsbee v. Davis, 5 R. I. 442; Brain- 
 ard V. Shannon, 60 Me. 342; JlcCoy v. Williams, 6 111. 584. 
 
 EVASION: Especially is this true of evasive answers and state- 
 ments. Barker v. Osborne, 71 Me. 69; Crain v. Gould, 46 111. 293; 
 Keel V. Ogden, 5 T. B. Mon. (Ky.) 362; Dawson v. Maria, 15 Or. 
 556, 16 Pac. 413. 
 
 If a garnishee, who should have knowledge of the essential facts,, 
 makes a doubtful answer, no presumptions can be made in his 
 favor. Sebor v. Armstrong, above. 
 (38G) 
 
oil. 13] ANSWER OF THE GARNISHEE. § 3J 2 
 
 guage taken all together,"" and the original and fur- 
 ther disclosure must be taken as one, and considered 
 together/ °° A layman's language, in his disclosure, 
 is to be taken in its ordinary meaning, and he is not 
 supposed to be speaking in technical terms/"^ The 
 answer of the garnishee appearing to be as certain 
 and positive as his knowledge will permit, he cannot 
 be charged, unless his liability appears.'^"^ But, where 
 the circumstances excite strong suspicion of fraud, 
 
 9 9 Kelly V. Bowman, 12 Pick. (Mass.) 383; Scott t. Ray, 18 Pick. 
 (Mass.) 3G0; Giddings v. Coleman, 12 N. H. 153; Sampson v. Hyde, 
 16 N. H. 492; First Nat. Bank of ilontague v. Robertson (Tex. Sup.) 
 19 S. W. 1069; Id., 3 Tex. Civ. App. 150, 22 S. W. 100; U. S. v. 
 Langton, 5 Mason, 280, Fed. Cas. No. 15,560. 
 
 The garnishee's disclosure must be construed as a whole, and no 
 part can be disregarded in construing the rest. Sexton v. Amos, 39 
 Mich. 696. 
 
 In arriving at the facts, the plain and natural import of the lan- 
 guage of the answer taken together must control, and the garnishee 
 must be charged, or not, according as the evidence afforded by the 
 whole answer preponderates. Cardany v. New England Furniture 
 Co., 107 Mass. 110. 
 
 100 Meadowcroft v. Agnew, 89 111. 469; Sexton v. Amos, 39 Mich. 
 696; Easton v. Lowery, 29 Ala. 454. 
 
 101 Case V. Dewey, 55 Mich. 116, 20 N. W. 817. 
 
 102 Ormsby v. Anson, 21 Me. 23; Harris v. Aiken, 3 Pick. (Mass.) 
 1; Wilhelmi v. Haffner, 52 111. 222; Hart v. Dahlgreen, 16 La. 559; 
 Rice V. Whitney, 12 Ohio St. 358. 
 
 LIABILITY NOT PRESUMED, BUT MUST BE PROVED: In 
 Massachusetts, where the garnishee is called "tnistee," Parsons, C. 
 J., in an early case (Webster v. Gage, 2 Mass. 503), used the following 
 language, in delivering the opinion of the court: "As the trustees 
 must be holden, unless sufficient matter appears in their answer to 
 discharg-e them," etc. While this remark might be considered as 
 proper when applied to the particular facts of that case, the language 
 is unfortunate; and from this dictum a misconception of the law 
 arose, and was maintained in that state for many years, until, in 
 
 (387) 
 
§ 312 LAW OF GARNISHMENT. [Ch. 13 
 
 and the garnishee has knowledge of facts which would 
 discharge him if he were innocent, but gives only 
 an indefinite and evasive answer, it will be presumed 
 
 the case of Porter v. Stevens, 9 Gush. (Mass.) 530, Gushing, J;, in an 
 elaborate and well-considered opinion, traces the origin of the error, 
 and, after reviewing several cases (Cleveland v. Clap, 5 Mass. 201 ; 
 Ripley v. Severance, 6 Pick. [Mass.] 474; Kelly v. Bowman, 12 Pick. 
 [Mass.] 383; Patterson v. Buckminster, 14 Mass. 144; Graves v. 
 "Walker, 21 Pick. [Mass.] ICO, 162, and Shaw v. Bunker, 2 Mete. 
 [Mass,] 376) generally supposed to recognize as law the dictum above 
 quoted, proceeds as follows: "A scrutiny of other eases cited by coun- 
 sel, to the effect that the auswers of a trustee, being his own lan- 
 guage, in all doubtful cases will be construed most strongly against 
 himself, leads to a similar conclusion, namely, that the court, in these 
 cases, was commeutiug on the matter of answers in dischai-ge, or 
 evidence of a possession of credits ascertained or admitted by previ- 
 ous answers, and on account of which the burden of proof and of log- 
 ical conclusion was in a manner shifted, and the question necessarily 
 became how to discharge, not to charge, the trustee. * » * Wheth- 
 er the alleged trustee has in his hands and possession the goods, 
 effects, or credits of the plaintiff's debtor, thus intrusted or deposited, 
 is a question of fact, on the pleadings, to be tried and ascertained 
 as other matters of fact are ascertained by the exhibition of proofs, 
 and these proofs are governed by the established principles of legal 
 reasoning, which are, after all, but the principles of pure universal 
 reason, elicited from the conflict of opposing minds, tested by judicial 
 experience and impartiality, and adapted to the changeful Interests of 
 human life. Now, according to these well-established principles of 
 reasoning, and of legal proof, the allegation of the plaintiff's writ, that 
 the party summoned is the trustee of the plaintiff's debtor, is an alle- 
 gation merely. It is not of itself evidence, either conclusive or even 
 prima facie. The party summoned, it is true, may admit the allega- 
 tion, either expressly or by making default; and then the proof con- 
 sists of his admission. But, if the alleged trustee deny the allega- 
 tion, as he may, then the plaintiff is put to the proof of his allegation. 
 'Afflrmantis est probare.' * * * It is for the plaintiff to prove his 
 allegation, not for the defendant trustee to disprove it." Cited and 
 approved in Gardany v. New England Furniture Co., 107 Mass. IIC. 
 See, also. Lane v. Felt, 7 Gray (Mass.) 491. 
 (388) 
 
Ch. 13] ANSWER OF THE GAENISHBIE. § 313 
 
 that he could not make any showing more favorable to 
 himself."'' 
 
 Statements of Fact and Conclusions of Law — Presumption of Truth. 
 § 313. The facts stated by the garnishee in his an- 
 swer, and not his conclusions, govern in determining 
 his liability. If he makes a general denial of all and 
 any liability, and then proceeds to state, or his further 
 examination discloses, the facts in detail, he will be 
 charged, if the facts disclosed warrant it, regardless of 
 his denial of liability."* It is unnecessary to con- 
 trovert the answer in such cases.* A disclosure not 
 contradicted, and upon which issue has not been taken, 
 is presumed to be absolutely true;"^ and this pre- 
 sumption of truth extends to matters stated upon in- 
 
 103 Page V. Smith, 25 Me. 256; Sebor v. Armstrong, 4 Mass. 200. 
 See, also. Hart v. Dahlgreen, 16 La. 559. 
 
 104 Donnelly v. O'Connor, 22 Minn. 309; Farmers' & Mechanics' 
 Bank -v. Welles, 23 Minn. 475; Milliken v. llannheimer, 49 Minn. 521, 
 52 N. W. 139; Hitchcock v. Watson, 18 111. 289; Everdell v. She- 
 boygan & Fond du I.,ac Ry. Co., 41 Wis. 395, 402; Grever v. Culver, 
 84 Wis. 295, 54 N. W. 585; Bebb v. Preston, 1 Iowa, 460; Cornish v. 
 Russell, 32 Neb. 397, 48 N. W. 379; Baker v. Moody, 1 Ala. 315; 
 Mann v. Buford, 3 Ala. 312, 37 Am. Dec. 691; White v. Kahn (Ala.) 
 15 South. 595; Mason v. Beebee, 44 Fed. 556; Pickler v. Rainey, 4 
 Heisk. (Tenn.) 335; Ordway v. Remington, 12 R. I. 319. 
 
 The garnishee's conclusions concerning the facts disclosed by him 
 are subject to revision by the com-t. Lamb v. Franklin Manuf'g Co., 
 18 Me. 187; Plummer v. Rundlett, 42 Me. 365. 
 
 * Moursund v. Preiss, 84 Tex. 554, 19 S. W. 775; Swearingen v. 
 Wilson, 2 Tex. Civ. App. 157, 21 S. W. 74. 
 
 10 6 Davis V. Pawlette, 3 Wis. 300, 42 Am. Dec. 690; Vanderhoof^v. 
 Halloway, 41 Minn. 498, 43 N. W. 331; Meeker v. Sanders, 6 Iowa, 
 61; Bean v. Barney, 10 Iowa, 498; Robinson v. Rapelye, 2 Stew. (Ala.\ 
 86; Hurst v. Home Protection Fire Ins. Co., 81 Ala. 174, 1 South. 209; 
 White V. Kahn (Ala.) 15 South. 595; White v. Hobart', 90 Ala. 368, 
 7 South. 807; Hamilton v. Hill, 86 Me. 137, 29 Atl. 956; Williams v. 
 Jones, 42 Miss. 270; Davis v. Knapp, 8 Mo. 657; Truitt v. Griflin, 61 
 
 (389) 
 
§ 314 LAW OF GARNISHMENT. [Ch. 13 
 
 formation and belief, as well as to matters positively 
 asserted.^ °° 
 
 Liability must Clearly Appear, or Garnishee will be Discharged. 
 
 § 314. When the plaintiff contents himself with the 
 showing made by the garnishee's disclosure, and rests 
 his case upon it, it must be clear and distinct in its ad- 
 missions and statements, upon which recovery de- 
 pends, to warrant charging the garnishee/"' If the 
 garnishee discloses that he does not know to whom he 
 is indebted, or to whom the property in his possession 
 
 111. 26; McCoy v. "Williams, 6 111. 584; Rankin v. Simonds, 27 111. 352; 
 Illinois Cent. Ey. Co. v. Cobb, 48 111. 402. 
 
 As to the effect of the disclosure when controverted, see ante, §§ 
 287-289, and post, § 369. 
 
 This rule extends to answers made to the summons to show cause. 
 Varian v. New England j\Iut. Ace. Ass'n, 156 Mass. 1, 30 N. E. 368. 
 
 Under some statutes, the plaintiff is not allowed to contradict the 
 disclosure, and, of course, under these statutes the answer is con- 
 clusive so far as it goes. See ante, § 180; Comstock v. Farnum, 2 
 Mass. 96; Stackpole v. Newman, 4 Mass. S5; Gouch v. Tolman, 10 
 Cush. 104; Cheatham v. Trotter, Peck (Tenn.) 198; Childress v. Dick- 
 ins, 8 Yerg. (Tenn.) 113. 
 
 10 6 See ante, § 303. 
 
 107 Weirich v. Scribner, 44 Mich. 73, 6 N. W. 91; Smith T. Hol- 
 land, 81 Mich. 471, 45 N. W. 1017; Banning v. Sibley, 3 Minn. 389 
 (Gil. 282, 293); Schafer v. Vizena, 30 Minn. 387, 15 N. W. 675; 
 Vanderhoof v. Halloway, 41 Minn. 498, 43 N. W. 331; Wilder v. 
 Ferguson, 42 Minn. 112, 43 N. W. 794; People v. .Johnson, 14 111. 842; 
 Cairo & St. L. Ry. Co. v. Killenberg, 82 111. 295; Meadowcroft v. 
 Agnew, 89 111. 469; Cairo & St. L. Ry. Co. v. Hindman, 85 111. 521; 
 Johann v. Rufener, 30 Wis. 671; Mason v. Beebee, 44 Fed. 556; 
 ' Richards v. Stephenson, 99 Mass. 311; Seward v. Arms, 145 Mass. 
 195, 13 N. E. 487; AVilder v. Shea, 13 Bush (Ky.) 128; Smith v. 
 Clarke, 9 Iowa, 241;, Morse v. Marshall, 22 Iowa, 290; Church v. 
 Simpson. 25 Iowa, 408; Hibbard v. Everett, 65 Iowa, 372, 21 N. W. 
 683; Brainard v. Simmons, 67 Iowa, 646, 21 N. W. 27, and 25 N. W. 
 844; Drake, Attaehm. § 659. 
 
 A disclosure showing an indebtedness is sufficient, though it does 
 (390) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 314 
 
 belongs,^"* or whether it is subject to be reached by 
 jjarnishment process,"" or the disclosure leaves it in 
 doubt whether he is indebted to the defendant or some 
 one else/^" the plaintiff must fail, and the garnishee be 
 discharged, unless the necessary facts are proven ali- 
 unde. For example, if the garnishee discloses that 
 he is indebted, but other persons than the defendant 
 
 not show the debt to be due. Hobson v. Kelly, 87 Mich. 187, 49 N. 
 W. 533. 
 
 There being several defendants in the principal suit, and only one 
 having been personally served, a disclosure made by the garnishee 
 summoned in such suit, admitting indebtedness, VFill be presumed 
 to be an indebtedness to the defendant served. Hinkley v. St. An- 
 thony "VA'ater Power Co., 9 Minn. 55 (Gil. 44). 
 
 A disclosure that money due is for commissions for sales does not 
 show that the same is to a brolier, and therefore not exempt as 
 wages, and a judgment on it is erroneous. Hamberger v. Marcus, 
 157 Pa. St. 133, 27 Atl. 681. 
 
 A disclosure which sets out the giving of a warranty deed of land 
 by the garnishee to the principal defendant, for a consideration named, 
 and the dispossession of the principal defendant by legal proceedings 
 by one showing paramount title in himself, is sufficient to render the 
 garnishee liable for the amount of the consideration money. Allen v. 
 Hazen, 26 Mich. 142. 
 
 108 Walker v. Detroit, G. H. & M. Ry. Co., 49 Mich. 440, 13 N. W. 
 812; Lyon v. Kneeland, 58 Mich. 570, 25 N. W. 518; Karp v. Cit- 
 izens' Nat. Bank of Saginaw, 76 Mich. 679, 43 N. W. 680; Townsend 
 V. Cass Circuit Judge, 39 Mich. 407; Weil v. Tyler, 38 Mo. 54.j. 
 
 When a bank summoned as garnishee disclosed that it had a deposit 
 on its books in the name of the defendant as agent, and that It knew 
 no principal, and that no one else had claimed the money before the 
 garnishment or since, it was held that the garnishee was properly 
 charged. Proctor v. Greene, 14 R. I. 42. 
 
 108 Crisp V. Ft. Wayne & E. Ry. Co., 98 Mich. 648, 052, 57 N. W. 
 1050. 
 
 110 Spears v. Chapman, 43 Mich. 541, 5 X. W. 1038; Pioneer Print- 
 ing Co. V. Sanborn, 3 Minn. 413 (Gil. 304); Hewitt v. Wagar Lumber 
 Co., 38 Mich. 701; Pierce v. Carleton, 12 111. 358, 54 Am. Dec. 405; 
 Morse v. Marshall, 22 Iowa, 290. 
 
 (391) 
 
§ 315 LAW OF GARNISHMENT. [Ch. Vii 
 
 claim to own the debt, he must be discharged, unless 
 such claimants are made parties, and their rights liti- 
 gated.^^^ A disclosure absolutely denying liability 
 cannot be overcome by ambiguous and inferential tes- 
 timony alone, so as to send the cnse to the jury/" 
 But, when the garnishee assumes the risk, after he is 
 served, of paying to a claimant, he must, upon the trial, 
 prove that the claimant's right was paramount and 
 bona fide."' 
 
 When Disclosure Shows Prima Fade Liability. 
 
 § 315. There are numerous cases holding that, 
 when the garnishee by his disclosure shows a prima 
 facia liability, and attempts to avoid it by showing 
 that it has been discharged, or the like, he must be 
 charged, unless he discloses facts which enable the 
 court to say judicially that he should be discharged."* 
 
 111 Button ,v. Trader, 75 Mich. 295, 42 N. W. 834; Mansfield v. 
 Stevens, 31 Minn. 40, 16 N. W. 455. But see Wentworth v. Wey- 
 moutli, 11 Me. 446; Wood v. Partridge, 11 Mass. 488. 
 
 112 Quinn v. Blanck, 55 Mich. 269, 21 N. W. 307. 
 
 113 Lyman v. Tarbell, 30 Vt. 463. 
 
 11* Webster v. Gage, 2 Mass. 503; Cleveland v. Clap, 5 Mass. 201; 
 Graves v. Walker, 21 Pick. (Mass.) 160, 162; Shearer v. Handy, 22 
 Pick. (Mass.) 417; Rovs-ell v. Felker, 54 Vt. 526; Toothaker v. Allen, 
 41 Me. 324; Butman v. Hobbs, 35 Me. 232, 237; Whitney v. Kelloy, 
 67 Me. 377; Barker v. Osborne, 71 Me. 69; Fogg v. Worster, 49 N. H. 
 503; dissenting opinion in Davrson v. Iron Rr.uge & H. B. R. Co., 97 
 Mich. 33, 45, 50 N. W. 106; Maynards v. Cornwell, 3 Mich. 109; 
 McCoy V. Williams, 6 111. 584; Grain v. Gould, 46 111. 293. 
 
 Statement, in a disclosure admitting an indebtedness to the defend- 
 ant, that the defendant had served upon him written notice that he 
 had assigned his interest in the debt before the garnishment, held too 
 indefinite to relieve the garnishee from his admitted liability. Born v. 
 Staaden, 24 111. 322; Compare Frank v. Frank, 6 Mo. App. 588. 
 
 A statement in the answer of the garnishee, that he is informed and 
 believes that his debt to the defendant is exempt from garnishment, 
 (392> 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 315 
 
 In Massachusetts it was held, under this rule, that 
 when it appears by the answer of the garnishee that, 
 long before the service of the plaintiff's writ upon hinfi, 
 divers notes belonging to the defendant were deposited 
 in his hands, it was incumbent upon him to show 
 clearly that he had been discharged; that, if he left 
 this doubtful, he must be charged, and no presump- 
 tions could be indulged in his favor/'^ On the other 
 hand, the supreme court of Michigan, in a similar 
 case, held that it was incumbent upon the plaintiff to 
 prove that the liability existed at the time the garnish- 
 ment suit was instituted, saying that "whether a pre- 
 sumption [of continued liability] arises must, of neces- 
 sity, depend upon the nature of the subject in ques- 
 tion, as well as the circumstances of the transaction 
 to which it is sought to be applied." ^^° So, too, there 
 
 is insufficient to discharge him, because issue upon it would put in 
 issue only the fact of his belief. The exemption being in favor of 
 residents only, he should also state that the defendant is a resident. 
 Smith V. Chicago & N. W. Ry. Co., 60 Iowa, 312, 14 N. W. 335. 
 
 The garnishee stated that he was not indebted to the defendant at 
 the time he was summoned as garnishee, but that, before that time, 
 he had delivered to them accommodation nites for a much larger 
 amount, which were not yet due, and that he did not know whether 
 the notes had been discounted or not. Held, that he was properly 
 charged. Milliljen v. Mannheimer, 49 Minn. 521, 52 N. W. 139. 
 
 115 Ripley V. Severance, 6 Pick. (Mass.) 474. 
 
 lie Bethel v. Linn, 63 Mich. 464, 30 N. W. 88. 
 
 LIABILITY SHOWN PRESUMED TO CONTINUE: The dis- 
 closure of the garnishee showing that, "on the evening of the 7th, 
 about the time of the service" of the garnishment summons, the gar- 
 nishee was indebted, it will be presumed thst the indebtedness ex- 
 isted at the time the summons was served. Hoops v. Culbertson, 17 
 Iowa, 305. Compare Fleming v. Baxter, 20 Colo. 238, 38 Pac. 57. 
 
 The disclosure showed $600 balance on the garnishee's books due the 
 defendant, but the garnishee said that, except by the books, he had no 
 knowledge of whether he owed the defendant or not,— that the debt 
 
 (393) 
 
§ 315 LAW OF GARNISHMENT. [Ch. 13 
 
 are several decisions of the New England states to the 
 effect that a garnishee who has admitted that he has in 
 his possession property of, or owes a debt once belong- 
 ing to, the defendant, will be charged, notwithstand- 
 ing he also states that he is informed that the defend- 
 ant sold his interest before the process was begun, 
 or others claim to have purchased it/" But it is well 
 settled in most of the Western states that, in such a 
 case, no recovery can be had against the garnishee un- 
 less the plaintiff brings in the alleged claimant, and 
 disproves his title to the property/^* The same is 
 true of the garnishee's statements that the property is 
 exempt from garnishment. The plaintiff must dis- 
 prove it.^" It is apprehended that the true rule is 
 that, when a claimant is announced by the garnishee 
 in his answer, whether that claimant be the principal 
 defendant, claiming exemption, or some other party, 
 the plaintiff, if he can recover at all, against the gar- 
 nishee, without forming and trying an issue with the 
 claimant, must assume the burden of proof through- 
 out; and that, with this exception, the maxim, "Af- 
 firmantis est probare," universally applied in other 
 
 might have been discharged without his knowledge. Held, that he 
 was properly discharged. Hewitt v. Wagar Lumber Co., 38 Mich. 701. 
 
 117 Wentworth v. Weymouth, 11 Me. 446; McAllister v. Brooks, 22 
 Me. 80, 38 Am. Dec. 282; Giddings v. Coleman, 12 N. H. 153; Wood 
 V. Partridge, 11 Mass. 488; Born v. Staaden, 24 111. 320. 
 
 Held, that a good assignment cannot be presumed when the gar- 
 nishee expresses no opinion. Born v. Staaden, supra. 
 
 118 Hewitt V. Wagar Lumber Co., 38 Mich. 701; Sexton v. Amos, 
 89 Mich. 697; Smith v. Holland, 81 Mich. 471, 45 N. W. 1017; Levy 
 V. Miller, 38 Minn. 526, 38 N. W. 700; King v. Carhart, 18 Ga. 050. 
 See, also, post, § 333. 
 
 110 Crisp V. Ft. Wayne & E. Ry. Co., 98 Mich. 648, 57 N. W. 1050. 
 But see Smith v. Chicago & N. W. Ry. Co., 60 Iowa, 312, 14 N. W. 335. 
 (394) 
 
Ch. 13] ANSWER OF THE GARNISHEE. § 315 
 
 forms of action, is equally applicable in garnishment 
 trials. No man should be asked to prove a nega- 
 tive.' '» 
 
 120 "The answer of the garnishee not only admits all the allegations 
 of the complaint, except the indebtedness, but affirmatively alleges 
 that, a short time before the service of garnishment, he purchased 
 of the defendant in the action the lands and notes mentioned in the 
 complaint, at the agreed and stipulated price of $5,500, but alleges 
 that he had wholly paid for tlie same prior to such time. The reply 
 denied the allegation of payment, and thus raised the only issue of 
 fact in the case. Upon this issue the burden of proof was clearly with 
 the garnishee. The rule is well settled that, when a defendant admits 
 a cause of action set out in the complaint, and relies upon the defense 
 of payment, the burden of proof is upon him to establish tliat fact." 
 Willis V. Holmes (Or.) 42 Pac. 989. 
 
 (395) 
 
§ 316 LAW OF GARNISHMENT. [Ch. 14 
 
 CHAPTER XIV. 
 
 SCIRE FACIAS, PAYMENT INTO COURT, DISSOLUTION 
 BOND, AND CHANGE OF VENUE. 
 
 § 316. Scire Facias, or Summons to Show Cause. 
 
 317. Payment of Garnisliecl Property into Court. 
 
 318. Bond to Discharge the Garnishee and Release the Property 
 
 Garnished — Object and Construction of Statutes. 
 
 319. Right to Release on Bond Statutory— Effect of Bond. 
 
 320. Bond to Pay What Plaintiff may Recover in Main Action. 
 
 321. Bond to Paj' What might be Recovered of Garnishee. 
 
 322. Construction of Bond. 
 
 323. Defenses to Action on Bond. 
 
 324. The Manner of Enforcing the Obligation. 
 
 325. Change of Venue. 
 
 326. Garnishment not Separable from Main Action. 
 
 327. Garnishment an Action Entitling Parties to Change. 
 
 328. Who may Have Change of Venue, and When. 
 
 Scire Facias, or Sumiuons to Show Cause, 
 
 § 316. Under many of the statutes, no final judg- 
 ment can be rendered against the garnishee until he 
 has had an opportunity to show cause against it upon 
 a second summons,^ unless he waives such summons.^ 
 
 1 Brackon v. Ballentine, 16 N. J. Lave, 484; Iron ClifCs Co. v. Lahais, 
 52 Mich. 394, 18 N. W. 121; Williams v. Van Metre, 19 111. 293; Tole- 
 do, W. & W. Ry. Co. V. Reynolds, 72 111. 487; Canan v. Carryell, 1 N. 
 J. Law, 3. See, also, post, §§ 354, 388. 
 
 In Iowa, summons to show cause is necessary only in default cases, 
 and not in cases in which the garnishee refuses to answer, ScamahOi-n 
 v. Scott, 42 Iowa, 529; or appears and then suffers default for not 
 answering, McDonald v. Finney. 87 Iowa, 529, 54 N. W. 476. 
 
 On scire facias, the garnishee may make any defense available un- 
 der the original summons. Hogshead v. Carruth, 5 Yerg. (Tenn.) 227. 
 
 See, also, post, § 391; Varian v. New York Mut. Ace. Ass'n, 150 
 Mass. 1, 30 N. E. 368. 
 
 2 Griffin v. Potter, 27 Mich. 166; Bigalow v. Barre, 30 Mich. 1; 
 
 (396) 
 
Ch. 14] SCIRE FACIAS. § 316 
 
 The office of this summons is to apprise the garnishee 
 of the fact that a judgment has been recovered against 
 the defendant, or that a conditional judgment has been 
 rendered against himself, and that the plaintiff intends 
 to look to him for payment; and its object is to give 
 him an opportunity to show cause, if any there be, why 
 he should not be required to pay.' A summons not 
 sufficiently intelligible to convey tlie required informa- 
 
 Barber v. Howd, 85 Mich. 221, 225, 48 N. AV. 539; Decatur, C. & N. 
 O. Ry. Co. V. Crass, 97 Ala. 519, 12 South. 43; WoodrufE v. Bacon, 34 
 Conn. 181. 
 
 Under How. Ann. St. Mich. § 8038, no summons to show cause Is 
 necessary when judgment is recovered against the defendant Ijefore 
 the garnishee answers. Elser v. Rommel, 98 Mich. 74, 56 N. W. 1107. 
 
 When summons to show cause was issued and served, and on the re- 
 turn day neither party appeared, held, that the proceedings were at 
 an end by force of the statute declaring the plaintiff nonsuited if he 
 does not appear, and, therefore, that they could not be revived by a 
 new summons, and a judgment thereon is no protection to the gai'- 
 nishee. Johnson v. Dexter, 38 ilich. 695. 
 
 a Carlker v. Anderson, 27 111. 358; Elser v. Rommel, 08 Mich. 74, 
 56 N. W. 1107; Brackon v. Ballentine, 16 N. J. Law, 484. 
 
 OB.TECT OF TWO WRITS: "In my judgment, tlie main object 
 contemplated by f'e legislature in the first summons to the garnishee, 
 which goes out with the attachment, was to bind the effects and prop- 
 erty, if any such there might be, of the defendant, in the hands of 
 the garnishee, and to prevent his making any disposition of them until 
 it should be ascertained whether they vcould be needed to be applied in 
 satisfaeti.^n of the plaintiff's claim; and that, until the garnishee is 
 summoned by the scire facias, afterwards to be issued, he is not bound 
 to presume that any appearanc- or answer will be required of him. 
 * * * Unless he is called upon by the process of the court to make 
 such answer, he has good right to believe, either that the plaintiff has 
 been able to make his debt by some other means, or has become sat- 
 isfied that he [the garnishee] is without funds or effects belonging to 
 the defendant." McCourtie v. Davis, 2 Oilman (111.) 298, 304. 
 
 (397) 
 
§ 316 LAW OF GARNISHMENT. [Ch. 14 
 
 tion is nugatory ; * but, as the garnishee may waive 
 this summons entirely, he may waive any defect in it.^ 
 An appearance in answer to this summons will not 
 waive defects in the previous proceedings, void for 
 want of jurisdiction." If the former proceedings are 
 without jurisdiction, the garnishee may safely ignore 
 the scire facias.' This summons is founded upon the 
 previous proceedings,' and is not an original writ.' 
 The plaintiff need file no petition under it." In order 
 to confer jurisdiction upon the court to proceed fur- 
 ther, it must be issued within the time prescribed by 
 the statute, and comply with its terms,^' and be regu- 
 larly served.^^ 
 
 If the court acquires jurisdiction by the proceedings 
 
 4 Cariker v. Anderson, 27 111. 358; Neal v. Cook, 10 N. J. Law, 337; 
 Welsh V. Blackwell, 14 N. J. Law, 344. 
 
 Improperly denominating the summons a scire facias is immaterial, 
 if not misleading. Duncan v. Sangamo Fire Ins. Co., 35 Iowa, 20. 
 
 " Woodruff V. Bacon, 34 Conn. 181. 
 
 6 Padden v. Moore, 58 Iowa, 703, 12 N. W. 724. 
 
 7 Illinois Cent. Ry. Co. v. Brooks, 90 Tenn. 161, 16 S. W. 77. 
 s Maynards v. Cornwell, 3 Mich. 309, 313. 
 
 Second summons is necessary when garnishee fails to answei-. 
 Longwell v. Hartwell, 164 Pa. St. 533, 30 Atl. 495. 
 
 Smyth v. Ripley, 32 Conn. 156. 
 
 "A scire facias, though not an original, but a judicial, writ, is prop- 
 erly an action, and in the tature of a new original." Castuer v. 
 Styer, 23 N. J. Law, 253. 
 
 10 Pifield V. Wood, 9 Iowa, 249. Contra, How. Ann. St. Mich. § 8037. 
 
 11 Heritage v. Armstrong, 101 Mich. 85, 59 N. W. 439; Cariker v. 
 Anderson, 27 111. 358. But see Dore v. Dougherty, 72 Cal. 232, 13 
 Pac. 621. 
 
 Held, that the statute directing that scire facias issue to the next suc- 
 ceeding term is merely directory, and the delay of a term is not fatal. 
 Lomerson v. Hoffman, 24 N. J. Law, 674. 
 
 12 First Nat. Bank of Detroit v. Burch, 76 Mich. 608, 43 N. W. 453. 
 What would be a sufficient service of the original summons is suf- 
 
 (398) 
 
Ch. 14] PAYMENT INTO COURT. § 317 
 
 had, and the garnishee suffers judgment to go against 
 him by default, errors and irregularities in the pro- 
 ceedings are thereby cured, and the judgment is as 
 binding as if rendered after contested trial." When 
 the length of the notice is not provided by the statute, 
 reasonable notice is all that is necessary.^* 
 
 Payment of Garnished Property into Court. 
 
 § 317. Payment into court is payment to the clerk 
 of the court," or other proper officer appointed for the 
 purpose of receiving it. Statutes frequently provide 
 that, under certain conditions, the garnishee may — 
 and some of them direct that, in certain cases, under 
 order of the court, he shall— pay or deliver the attach- 
 ed property into court, and that thereupon he shall be 
 discharged from all further liability in respect there- 
 of." It has been said that, vphere such statutes exist, 
 the garnishee may be charged for the use of the prop- 
 
 ficient service of scire facias. Plagg v. Piatt, 32 CoDn. 216. It must 
 be executed, like any other ordinary process, by personal service. 
 ' Tvco nihils are not a service. McCourtie v. Davis, 2 Gilman (111.) 298; 
 Castner v. Styer, 23 N. .1. Law, 236; Mayor, etc., of Jersey City \. 
 Horton, 38 N. J. Law, 88. 
 
 When the statute expressly provides that two nihils shall be deemed 
 a service in such cases, the officer must use due diligence during tlie 
 whole time allowed for service before he can return the writ "Not 
 ^ound,"and the second cannot Issue till the first is returned. Decatur, 
 C. & N. O. Ry. Co. V. Crass, 97 Ala. 519, 12 South. 43. 
 
 Service on the garnishee's attorney held insufficient. Carter v. Kosh- 
 land, 12 Or. 492, 8 Pac. 556. 
 
 13 Young V. Delaware, L. & W. Ry. Co., 38 N. J. Law, 502. 
 
 1* Langford v. Ottumwa W. P. Co., 53 Iowa, 415, 5 N. W. 574. 
 
 16 Warren v. Matthews, 96 Ala. 183, 11 South. 2S5. 
 
 i« Warren v. Matihews, 96 Ala. 183, 11 South. 285; Myers v. Smith, 
 29 Ohio St. 125; Somers v. Losey, 48 Mich. 294, 12 N. W. 188; Estey 
 
 (399) 
 
§ 317 LAW OF GARNISHMENT. [Ch. 14 
 
 erty while the suit is pending against him, unless he 
 pays it into court." Payment made pursuant to such 
 statutes aifords the garnishee as complete protection 
 as if made under execution." But voluntarily paying 
 the money into court, without complying with the re- 
 quirements of the statute, will not discharge the gar- 
 nishee's obligation.'^' In some respects these statutes 
 are a protection and accommodation to the garnishee, 
 and some of them are made solely for his benefit; ^^ 
 but usually the benefit is principally to the plaintiff, 
 for he may thus obtain an order restraining the gar- 
 
 V. Fuller Implement Co., 82 Iowa, 678, 47 N. W. 1025; Barber v. 
 Howd, 85 Mich. 221, 48 N. W. 539; State v. Judge, 39 La. Ann. C22, 
 2 South. 425. 
 
 OPERATES AS PAYMENT ON JUDGMENT: If the sheriff, to 
 whom the garnishee turned over the property, absconds, the loss 
 falls on the plaintiff, not the defendant. In re Dawson, 110 N. Y. 
 114, 17 N. E. 6G8. 
 
 17 See ante, § 138. 
 
 But, in the absence of such a statute, it is at least doubtful wheth- 
 er the garnishee could thus relieve himself of any responsibility. 
 Oriental Bank v. Tremont Ins. Co., 4 Mete. (Mass.) 10. Certainly, it 
 would be the veriest gratuity on his part to malse such payment. 
 Lyman v. Orr, 26 Vt. 122. 
 
 As to when payment into court may safely be made, without an 
 order of court directing it, see Phelps v. Town, 14 Mich. 374; Keith 
 V. Smith, 1 Swan (Tenn.) 92; Estey v. Fuller Implement Co., 82 
 Iowa, 678, 47 N. W. 1025. 
 
 18 See ante, § 210; Johann v. Rufener, 30 Wis. 671; Somers v. 
 Losey, 48 Mich. 294, 12 N. W. 188. 
 
 1" Button V. Trader, 75 Mich. 295, 42 N. W. 834. 
 
 The garnishee may discharge the judgment rendered against him 
 by paying the amount of it into court for that purpose. Griffin v. 
 Potter, 27 Mich. 166; Blacls, Judgm. § 986. 
 
 20 Coda v. Thompson, 39 W. Va. 67, 19 S. E. 548; Roberts v. Lan- 
 deoker, 9 Cal. 266; Potter v. GrifBn, 27 Mich. 166; Barber v. Howd, 
 85 Mich. 221, 48 N. W. 539; Randolph v. Heaslip, 11 Iowa, 37; Estey 
 V. Fuller Implement Co., 82 Iowa, 6iS, 47 N. W. 1025. 
 (400) 
 
Ch. 14] PAYMENT INTO COUET. § 317 
 
 nishee from removing the property, and requiring him 
 to put it into the custody of the court, thus insuring 
 its presence to satisfy any judgment he may recover 
 in his suit.^^ After the property is turned over to the 
 court, the parties may litigate their respective inter- 
 ests in it to the same extent as if still in the possession 
 of the garnishee." But, unless an order of the court 
 is made requiring payment of the property into court, 
 the garnishee has an absolute right to possession, and 
 can be deprived of it only by taking it on execution 
 issued on the judgment rendered against him; ^^ and 
 if such an order has been improperly allowed, he may 
 have mandamus to vacate it.^* The opinion has been 
 expressed that, in all cases, the court has power to 
 make an order directing the payment of the money into 
 court, whether there be a statute expressly granting it 
 or not.^^ But it is at least doubtful whether courts 
 can, even by virtue of statute, compel a garnishee to 
 
 21 Johann v. Rufener, 32 V^is. 195, 198. And see Smith v. Gower, 
 8 Mete. (Ky.) lil. 
 
 ORDER— HOW ENB'ORCED: Held, that an order to the gar- 
 nishee to pay the money into court can only be enforced by action. 
 Rice V. Whitney, 12 Ohio St. 358. See, also, post, § 391. 
 
 2 2 Howe V. Jones, 57 Iowa, 130, 8 N. W. 451; Edwards v. Cosgro, 
 71 Iowa, 296, 32 N. W. 350. 
 
 2 3 Langdon v. Thompson, 25 Minn. 509. 
 
 2 4 Townsend v. Cass Circuit Judge, 39 Mich. 407. 
 
 2= POWER WITHOUT STATUTE TO REQUIRE PAYMENT 
 INTO COURT: Orton v. Noonan, 27 Wis. 572; Germania Sav. 
 Bank v. Peuser, 40 La. Ann. 796, 5 South. 75. "I thlnli that the 
 court should, in all cases of this nature, and especially where It is 
 made to appear that the money or property in the hands of the gar- 
 nishee is in danger of being lost, or the debt becoming worthless 
 against him, direct the payment or delivery of the same to the sher- 
 iff, or the clerk of the court, or other proper officer, by whom it may 
 be safely kept and preserved for the benefit of the person immedi- 
 
 LAW GARNISH. 26 (401) 
 
§ 318 LAW OF GARNISHMENT. [Oh. 14 
 
 surrender property upon which he has a lien, unless his 
 lien is discharged, or, for the protection of the rights 
 of others, the necessity shall be apparent.""" 
 
 Bond to Discharge the Garnishee and Release the 
 Property Garnished. 
 
 Object and Construction of Statutes. 
 
 § 318. It is often provided by statute that the de- 
 fendant — and, in some cases, any party interested — 
 may secure the discharge of the garnishee and the re- 
 lease of the property garnished upon making and fil- 
 ing in the cause a bond, as therein prescribed, payable 
 to the plaintiff in the suit; ^'' and in some of the states 
 
 ately entitled thereto. This is an order which may properly be 
 made in any case, and particularly where the principal defendant 
 asks it. I think there can be no doubt about the power of the court 
 in such cases, whether it be expressly granted by statute or not." 
 Orton V. Noonan, supra. Compare Coda v. Thompson, 39 W. Va. 67, 
 19 S. W. 548. 
 
 When the plaintiff did not show that the garnishee was an im- 
 proper person to be intrusted with the property, and did not show 
 that he was insolvent, held, that he was not entitled to have the 
 property put into the hands of a receiver. Silverman v. Kuhu, 53 
 Iowa, 436, 5 N. W. 523. 
 
 Held that, when the garnishee denied indebtedness, the court has 
 no authority to order him to pay an alleged indebtedness into court, 
 but should authorize plaintiff to institute an action against him. 
 Hartman v. Olovera, 51 Cal. 501; Brown v. Moore, 61 Cal. 432. 
 
 Held, that the court can order the delivery of only such property 
 as the garnishee adnllts he possesses. Coombs v. Davis, 2 Wash. 
 T. 466, 7 Pac. 860; Everton v. Parker, 3 Wash. St. 331, 28 Pac. 536. 
 
 2 6 Smith V. Menominee Circuit Judge, 53 Mich. 560, 19 N. W. 184; 
 Weed V. Mlrick, 62 Mich. 414, 29 N. W. 78; Smith v. Clarke, 9 
 Iowa, 241; Cox v. Russell, 44 Iowa, 556; Coombs v. Davis, 2 Wash. 
 T. 466, 7 Pac. 860. 
 
 27 How. Ann. St. Mich. § 8105; Sanb. & B. St. Wis. § 2771. 
 (402) 
 
Ch. 14] DISSOLUTION BOND. § 319 
 
 it lias been held that the statutes authorizing the eiv- 
 ing of a bond to release property attached by actual 
 seizure are broad enougn to cover the case of property 
 attached by garnishment.^* The object of the statute 
 is to enable the party authorized to give it to super- 
 sede the proceedings by giving security to perform the 
 judgment of the court, either as to the plaintiff's right 
 to recover against the principal defendant,^^ or as to 
 the liability of the garnishee.^" These statutes are 
 remedial, and should be liberally construed.''^ 
 
 Eight to Release on Bond Statutory — fjff'ect of Bond. 
 
 § 319. The right to have the property garnished re- 
 leased upon giving a sufficient bond does not exist in- 
 dependent of statute, and can be exercised only by the 
 party to whom the statute extends the privilege.^^ 
 
 2 8 Woodwafd v. Adams, 9 Iowa, 474; Lecesne v. Cottin, 10 Mart. 
 (La.) 174. Contra, Heyward v. Phillips-Buttoff Manuf g Co., 97 Ala. 
 533, 11 Soutli. 837; Heniy v. Gold Park Min. Co., 10 Fed. 11. 
 
 2 9 Myers v. Smith, 29 Ohio St. 120. 
 
 30 Sutro V. Bigelow, 31 Wis. 527. 
 
 31 Sutro V. Bigelow, 31 Wis. 527; Balkum v. Strauss, 100 Ala. 207, 
 14 South. 53. 
 
 A statute allowing release of property garnished in circuit court Is 
 sufficient to authorize release in the circuit court of property gar- 
 nished in justice court, on the case being taken to the circuit court 
 by appeal. Grosslight v. Crisup, 58 Mich. 531, 25 N. W. 505. 
 
 The statute applies, and the garnishee may be discharged on bond 
 before or after judgment obtained. Balkum v. Reeves, 98 Ala. 460, 
 13 South. 524. 
 
 3 2 Kling V. Childs, 30 Minn. 366, 15 N. W. 673; Heyward v. Phil- 
 lips-Buttoff Manuf'g Co., 97 Ala. 533, 11 South. 837. 
 
 Bond executed by one not authorized held invalid, both at com- 
 mon law and under the sta,tute. Cummins v. Gray, 4 Stew. & P. 
 (Ala.) 397; Sewall v. Franklin, 2 Port. (Ala.) 493. 
 
 Though the statute do not authorize the bond, it is nevertheless 
 valid and enforceable. Kich v. Sowles, 65 Vt. 135, 26 Atl. 585. 
 
 (403) 
 
§ 320 LAW OF GARNISHMENT. [Ch. 14 
 
 But, on the other hand, the plaintiff can require no bet- 
 ter security than is given him by statute, and the gar- 
 nishee is absolutely discharged upon the filing of tjie 
 appropriate bond, and no new bond can be required, 
 upon the securities in the original becoming insolvent, 
 unless the statute provides for it/* After filing the 
 appropriate bond, the proceedings against the gar- 
 nishee are at an end. No judgment can be rendered 
 against him,** and, if he elects to consider the proceed- 
 ings as still pending, and makes answer accordingly, 
 the defendant may, upon motion, have an order en- 
 tered discharging him.*^ 
 
 Bond to Fay What Plaintiff may Recover in Main Action. 
 
 § 320. What should be the condition of the bond for 
 the discharge of the garnishee depends entirely upon 
 the statute under which it is made. It is only upon fil- 
 ins a bond substantially complying with the terms and 
 requirements of the statute that the garnishee is en- 
 titled to be discharged. The condition of the bond, 
 under most statutes, must be to pay whatever judg- 
 ment the plaintiff may recover in the principal suit.*' 
 
 8s Dudley v. Goodrich, 16 How. Prac. 189; Hartford Quarry Co. v. 
 Pendleton, 4 Abb. Prac. 460. 
 
 The garnishee hs^ving been discharged upon bond, the plaintiff had 
 him summoned again, upon the sureties in the bond becoming in- 
 solvent, and the second garnishment was sustained. Stewart v. 
 Dobbs, 39 Ga. 82. 
 
 Si Guilford v. Reeves (Ala.) 15 South. 661; Balljum v. Reeves, 98 
 Ala. 460, 13 South. 524; Ballium v. Strauss, 100 Ala. 207, 14 South. 
 53; Jarvis v. Mitchell, 99 Mass. 530. 
 
 After bond is filed, no traverse of the answer is necessary. Ware 
 T. Laird, 93 Ga. 342, 20 S. E. 035. 
 
 3 5 Myers v. Smith, 29 Ohio St. 120. 
 
 S6 Grosslight v. Crisup, 58 Mich. 5rfl, 25 N. W. 505; Burt v. Wayne 
 Circuit Judge, 82 Slich. 251, 46 N. W. 380; People v. Cameron, 2 
 (404) 
 
Ch. 14] DISSOLUTION BOND. § 321 
 
 Bond to Pay What might he Recovered of Garnishee. 
 
 § 321. Under some of the statutes, the bond for dis- 
 solution of the garnishment proceedings is conditioned 
 to pay whatever judgment might be rendered against 
 the garnishee, but for the giving of the bond." Be- 
 
 Gilman (111.) 468; Myers v. Smith, 29 Ohio St. 120; Rich v. Sowles, 
 65 Vt. 135, 26 Atl. 585. 
 
 The liability of the bond is not affected by the fact that it incor- 
 rectly states the amount of the plaintiff's claim, it being conditioned 
 to pay whatever judgment the plaiutifC may recover. Everett v. 
 Westmoreland, 92 Ga. 670, 19 S. E. 37. 
 
 In Massachusetts a claimant may obtain a release of the property 
 on giving a bond to pay whatever judgment might be rendered 
 against the garnishee; but a bond to release it, given by the de- 
 fendant, must be conditioned to pay whatever judgment the plaintiff 
 may recover against him in the principal suit. Atwood v. West Rox- 
 bury Co-operative Bank, 156 Mass. 166, 30 N. E. 558. 
 
 87 City of Dallas v. Western Electric Co., S3 Tex. 243, 18 S. W. 552; 
 Sutro V. Bigelow, 81 Wis. 527; Whitehead v. Patterson, 88 Ga. 748, 
 16 S. Z). 66; Balkum v. Strauss, 100 Ala. 207, 14 South. 53; Guilford 
 V. JReeves (Ala.) 15 South. 661; Rome R. Co. v. Richmond & D. R. 
 Co., 60 Fed. 43. 
 
 BURDEN OF PROOF— ESTOPPEL— RECITALS: In an action 
 on a dissolution bond, with condition as required by statute, "that, 
 if the plaintiff recover judgment in the action, he [defendant] will 
 pay such judgment, or an amount thereon equal to the value of the 
 money, property, or effects so garnished," and reciting that the 
 plaintiff had garnished the money, property, and effects of the de- 
 fendant in the hands of the garnishee, the defendants are estopped 
 to set up' an assignment to them of such property, 'money, or effects 
 before the garnishment was served; and the burden is upon them, 
 and not upon the plaintiff, to show the nature, amount, and value of 
 the property. If the obligors in the bond fail to identify the prop- 
 erty garnished, and show the amount and value thereof, they must 
 be held liable for the whole amount of the judgment obtained by the 
 plaintiff against the defendant in the original action. Greengard v. 
 Fretz (Minn. ; decided Jan. 28, 1896) 65 N. W. 949. 
 
 APPEARANCE BOND: It was held, in an early case in Penn- 
 sylvania, that, on entrance of appearance bail by the defendant in 
 
 (405) 
 
§ 322 LAW OF GARNISHMENT. [Ch. 14 
 
 fore there can be any recovery on a bond given under 
 such a statute, there must be a judgment disposing of 
 the garnishment proceedings.^' In analogy with these 
 decisions it was held, in an action on a bond given by 
 a stakeholder to a garnishee, when the garnishee turn- 
 ed the property over to him, that no recovery could be 
 had against the bondsmen till the garnishment was 
 disposed of, the condition of the bond being that the 
 property should be held for whoever may prove to be 
 entitled to it.^^ 
 
 Construction of Bond. 
 
 § 322. A bond is sufficient if substantially comply- 
 ing with the requirements of the statute.*" When the 
 statute only required a bond conditioned to pay what- 
 ever judgment might be recovered against the gar 
 nisliee, and a bond was nevertheless executed with con 
 dition to pay whatever judgment the olaintiff might 
 recover in the main action, it was held that recover _^, 
 could be had on it only for the amount for which the 
 
 foreign attacbment, the plaintiff's lien on the property in the hands 
 of the garnishee was dissolved. Jackson's Appeal, 2 Grant, Gas. 
 (Pa.) 407. 
 
 EXEMPTION NOT WAIVED: The defendant does not waive his 
 exemption by executing a bond to the plaintiff for whatever judg- 
 ment might be recovered against the garnishee. Born v. Williams, 
 81 Ga. 790, 7 S. E. 808. 
 
 3 8 Whitehead v. Patterson, 88 Ga. 748, 16 S. E. 66; Guilford v. 
 Reeves (Ala.) 15 South. 601; Cunningham v. Hogan, 136 Mass. 407; 
 Porter v. Giles, 129 Mass. 589. 
 
 COSTS: A garnishee who answers, after bond given, under such 
 a statute, is entitled to the costs of making answer. Rome R. Co. v. 
 Richmond & D. R. Co., 60 Fed. 43. 
 
 3 Noble V. Bowman, 35 Kan. 15, 10 Pac. 143. 
 
 40 Ware v. Laird, 93 Ga. 342, 20 S. E. 635. 
 (406) 
 
Ch. 14] DISSOLUTION BOND. § 322 
 
 g:arn)sliee was chargeable.*^ Of course, the surety on 
 the bond can be held to no greater or different liability 
 than he has assumed in his undertaking; *^ but to that 
 extent he is liable. If the bond is conditioned to pay 
 any judgment that the plaintiff might recover against 
 the defendant, it is no defense that the plaintiff could 
 not have recovered against the garnishee/' nor that 
 the person executing the bond did not understand ei- 
 ther its condition or legal effect correctly.** In con- 
 struing the bond, regard must be given to the under- 
 standing of the parties when they executed it, and the 
 purpose of the statute in requiring it; and, when the 
 bond is to take the place of the plaintiff's rights ac- 
 quired by the garnishment proceeding, the surety can- 
 not escape liability on his bond on the ground that the 
 suit was discontinued as to one person who was a de- 
 fendant when the bond was executed, and, therefore, 
 that no judgment has been recovered against the de- 
 fendants named in his bond, provided the fact of dis- 
 continuing as to such defendants would not have pre- 
 vented the plaintiff from recovering against the gar- 
 nishee.*'* 
 
 *i Farmers' Co-operative Manuf'g Co. v. Middle Georgia Manuf g 
 & Imp. Co., 94 Ga. 673, 20 S. B. 117. But see Rich v. Sovvles, 65 Vt. 
 135, 26 Atl. 585. 
 
 *2 RECITALS: Tlie bond, being to pay whatever judgment the 
 plaintiff may recover in the principal suit, is not limited by an un- 
 derstatement of the amount of the plaintiff's claim in one of its re- 
 citals. Everett v. Westmoreland, 92 Ga. 670, 19 S. E. 37. 
 
 4 3 Rich V. Sovyles, 65 Vt. 135, 26 Atl. 585. 
 
 *4 Nevin v. Fouche, 77 Ga. 47. 
 
 4 6 Sutro V. Bigelovr, 31 Wis. 527; Rich v. Sowles, 65 Vt. 135, 26 
 Atl. 585. 
 
 In a somewhat similar case on an attachment bond in Michigan, 
 it was held that the piaintifC could not recover on the bond, regard- 
 
 (407) 
 
§ 324 LAW OF GARNISHMENT. [Ch. 14 
 
 Defenses to Action on Bond. 
 
 § 323. When it is sought to charge a surety on his 
 obligation, he cannot object that the statute allowing 
 the release of the garnishee, on giving bond, does not 
 provide any manner in vs^hich the surety can contest 
 his liability. He is held to nothing but an obligation 
 which he has voluntarily assumed, and, if he has neg- 
 lected to secure, by contract with his principal, the 
 right to intervene in the suit, and make any defense he 
 sees fit, it is his own fault.*" 
 
 Maimer of Enforcing Obligation. 
 
 § 324. The manner of enforcing the obligation of 
 the bond is governed largely by statute. Unless the 
 statute provides a more expeditious remedy, the plain- 
 tiff must sue upon his bond, and show that it has been 
 forfeited.*' In Michigan, the proper practice, under 
 the statute, is to have judgment entered up against the 
 defendant alone, and thereupon make an application 
 
 less of the defendant against whom judgment was rendered having 
 any interest in the attached property, when the discontinuance as 
 to the other defendants was without the consent of the surety on 
 the bond, or notice to him. Andre v. FitzbiT'h, 18 Mich. 93. 
 
 The terms of the attachment bona held broad enough to charge 
 the surety upon a judgment recovered against one of the attachment 
 defendants. Leonard v. Speidel, 104 Mass. 356. 
 
 Discharge of one of the defendants, and summoning another, and 
 then recovering judgment, was held to discharge the surety. Tuck- 
 er v. White, 5 Allen (Mass.) 322; Richards v. Storer, 114 Mass. 101. 
 
 Change m the identity of the plaintifns was held to have the same 
 effect. Quillen v. Arnold, 12 Nev. 234. 
 
 *6 Loh V. .Tudge of Wayne Circuit, 26 Mich. 186. 
 
 47 In suing on the bond it was held that setting out the bond in 
 full in the declaration is a sufficient allegation of its execution by 
 the person purporting to have signed it. Sutro v. Bigelow, 31 Wis. 
 527. 
 
 (408) 
 
Ch. 14] CHANGE OF VENUP:. § 325 
 
 to the court for an order that execution on such judg- 
 ment be issued against the sureties on the bond, as 
 well as against the principal defendant.*^ Under the 
 Georgia statute, it is held that "judgment cannot be 
 entered on the bond until a prior judgment has been 
 entered against the defendant in the suit. Judgment 
 in the suit should be against the defendant alone; and, 
 when it has been entered against him, the plaintiff 
 may enter up judgment on the bond, also, against him 
 and his security. The judgment in the suit is the 
 foundation on which the judgment 'on the bond is 
 predicated, and until there is a judgment in the suit 
 there is no basis on which to enter one on the bond." *" 
 
 Change of Venue. 
 
 § 325. How far do the old English practice of al- 
 lowing causes to be transferred from one court to an- 
 other for trial in certain cases, and the modern Ameri- 
 can statutes adopting and regulating the same, apply 
 to garnishment proceedings and suits having garnish- 
 In a case in which the garnishee answered, disclosing an Indebted- 
 ness, that the same was claimed by a stranger to the suit, and at 
 this stage of the proceedings the garnishee was dismissed, upon 
 bond conditioned to pay whatever judgment the plaintiff might have 
 recovered against the garnishee, held that, though no proceedings 
 could thereafter be had against the garnishee, the plaintiff could not 
 recover upon the bond without showing that he could ha,ve recovered 
 against the garnishee, and, therefore, that he had summoned the 
 claimant, and had his claim adjudged against him. Guilford v. 
 Reeves (Ala.) 15 South. 661. Compare Cunningham v. Hogan, 136 
 Mass. 407. See, also, ante, § 321. 
 <8 Loh V. Judge of Wayne Circuit, 26 Mich. 186, 
 io Everett v. Westmoreland, 92 Ga. 670, 19 S. B. 37. 
 
 (409) 
 
§ 326 LAW OF GAKNISHMENT. [Ch. 14 
 
 ments auxiliary to them?'" Does a transfer of the 
 principal case or the garnishment proceeding take the 
 other with it? These and other important and inter- 
 esting questions, relating to change of venue in such 
 cases, are liable to arise in practice at any time; but 
 the decisions on the subject are so few, and so far from 
 uniformity, that we can do little more than to collate 
 the cases and refer the reader to them. 
 
 Gurnishinent not Separable From Main Action. 
 
 § 326. As we, have already seen, the garnishment 
 suit is ancillary to the principal suit, and must be 
 brought in the same court with it." This has been 
 argued as a reason for holding that they cannot be 
 separated, but must both continue in the same court.^^ 
 In so holding, and in holding that a statute requiring 
 that actions brought in a county where the defendant 
 does not reside be transferred to the county of his resi- 
 dence does not apply to garnishment proceedings, the 
 supreme court of Iowa said : "It is not usual, if it ever 
 is the case, for a mere auxiliary proceeding to be prose- 
 cuted in a court other than the one wherein the main 
 action is pending. It would not be permitted, in the 
 absence of express statutory requirement. There is 
 no such statute in this state." ^' A Wisconsin statute 
 expressly provides that a transfer or removal of one 
 
 60 As to the origin of change of venne, see page 1046, pt. 2, 1 Smith, 
 Lead. Cas. (8th Am. Ed.) Hare & Wallace's notes to Mostyn v. Fa- 
 bry gas. 
 
 61 See ante, § 2. 
 
 62 Pratt V. Albrigh*, 9 Fed. 634; Poole v. Thatcherdeft, 19 Fed. 49; 
 Weeks v. Billings, 55 N. H. 371; Garland v. McKittrick, 52 Wis. 261, 
 9 N. W. 160. 
 
 63 Miller & Co. v. Mason & Co., 51 Iowa, 239, 1 N. W. 483. See, 
 
 (410) 
 
Ch. 14] CHANGE OP VENUE. § 327 
 
 shall take the other with it." In an early case in 
 Iowa it was held that the garnishee, having been duly 
 summoned, and having answered denying liability, 
 must be considered to have notice of everything done in 
 the case till his answer is disposed of; and the plain- 
 tiff, having taken a change of venue in the principai 
 case, and in the court to which the case was taken 
 claimed issue on the answer of the garnishee, and up- 
 on failure of the garnishee to contest it recovered 
 judgment, it was held that the garnishee could not 
 have the judgment set aside, on the ground that he 
 had no notice of the change of venue, or the contesting 
 of his answer. ^^ Afterwards a statute was enacted in 
 that state to the effect that, if less than all the plain- 
 tiffs or defendants take a change, then, as to those who 
 take no change, the cause shall proceed as if none had 
 been taken; and it was held, under this statute, that 
 change of venue in the main action, taken on applica- 
 tion of the principal defendant, did not remove the gar- 
 nishment proceedings, but that the same would pro- 
 ceed in the court where they were."" 
 
 Garnishment an Action Entitling Parties to Change. 
 
 § 327. But in Alabama it was held, without any 
 such statute, that the removal of the principal case by 
 consent of plaintiff and defendant would not carry the 
 garnishment proceedings, or affect them; that the gar- 
 nishee was not a party to the principal suit, and, as to 
 
 also, Smith v. Dickson, 58 Iowa, 444, 10 N. W. 850; Fischer v. Daud- 
 istal, 9 Fed. 145. 
 
 6 4 Garland v. McKittrick, 52 Wis. 261, 9 N. W. 160. 
 
 6 5 Chase v. Foster, 9 Iowa, 429. 
 
 6 Westphal v. Clark, 42 Iowa, 371. 
 
 (411) 
 
§ 328 LAW OF GARNISHMEiNT. [Ch. 14 
 
 Mm, the removal order was res inter alios actae."^ 
 And in Missouri it was held that a change of venue in 
 the garnishment case at the instance of the plaintiff 
 did not affect the jurisdiction of the court over the 
 principal case/^ In Indiana it is held that garnish- 
 ment supplementary to execution is an action within 
 the statute, and the garnishee, as defendant, may have 
 a change of venue as matter of right/" The decisions 
 holding that the garnishment follows the main case on 
 change of venue are no authority to the effect that the 
 garnishee cannot have a change of venue, for no judg- 
 ment can be rendered against him till the main action 
 is in judgment, after which the reasons for keeping the 
 two together are less. 
 
 Who may Have a Change of Venue, and When. 
 
 § 328. It is said, in Wisconsin, that the removal of 
 a cause from one tribunal to another is strictly a stat- 
 utory right, to be enjoyed only by those to whom it is 
 given, and therefore a defendant in execution cannot 
 remove the cause against his garnishee. He has lost 
 his right by allowing judgment to be entered against 
 him."" In the same manner, the plaintiff, by taking 
 judgment in the main action, loses his right of removal 
 to the federal court.°^ The intervening claimant is a 
 party to the suit, and, as such, is entitled to a change 
 
 67 Cross V. Spillman, 93 Ala. 170, 9 South. 362. 
 
 68 Martin v. Chicago, R. I. & P. Ry. Co., 50 Mo. App. 428. 
 
 69 Burkett v. Holman, 104 Ind. 6, 3 N. E. 406; Burlsett v. Bowen, 
 104 Ind. 184, 3 N. B. 768, and 118 Ind. 379, 21 N. E. 38. 
 
 so Garland v. McKittrick, 52 Wis. 261. 9 N. W. 160; Weeks v. BiU- 
 ings, 55 N. H. 371. 
 61 Poole V. Thatcherdeft, 19 Fed. 49; Pratt v. Albright, 9 Fed. 634. 
 (412) 
 
Ch. 14] CHANGE OF VKNUE. § 328 
 
 of venue upon his sole application, although the stat- 
 ute declare that no change shall be given unless all the 
 plaintiffs or defendants join in the application for it; 
 for his relations to the garnishee or the principal de- 
 fendant do not make him a codefendant with either. °° 
 Of course, the garnishee would be entitled to a change 
 of venue upon the same ground/" 
 
 62 Hewitt V. FoUett, 51 Wis. 264, 8 N. W. 177. Compare Maish v. 
 Bird, 48 Fed. 607. 
 83 Westphal v. Clark, 42 Iowa, 37L 
 
 (413) 
 
§ 329 LAW OF GABNISHMENT. [Ch. 15 
 
 CHAPTER XV. 
 
 BRINGING IN CLAIMANTS OF THE GARNISHED PROPERTY, 
 AND TRYING THEIR RIGHTS. 
 
 § 329. General Considerations— What to Do When Claimants are 
 Disclosed. 
 
 330. When Claimant may Prosecute a Suit of His Own. 
 
 331. ■ Other Suits by Plaintiff or Garnishee. 
 
 332. Origin and Purpose of Intervening Acts. 
 
 333. Action is Stayed till Claimant is Interpleaded. 
 
 334. When Claims may he Made. 
 
 335. Who may Suggest That There are Claimants— Claimant may 
 
 Appear and Assert His Claim. 
 330. Garnishee may Suggest Claimants 
 
 337. Plaintiff's Right to Suggest Claimants. 
 
 338. Defendant's Right to Suggest Claimants. 
 
 339. Authority of Court to Bring in Claimants of Its Own 
 
 Motion. 
 
 340. Order of Court Interpleading Claimants. 
 
 341. Nature and Sufficiency of Notice to Claimants. 
 
 342. Forming the Issue between ^he Claimant and the Plaintiff- 
 
 Claimant Has Affirmative, and Files First Pleading. 
 
 343. He must Rely on the Strength of His Own Claim. 
 
 344. Cannot Allege Errors in the Proceedings, nor Contest the 
 
 Garnishee's Liability. 
 
 345. Garnishee not a Party to This Issue. 
 
 346. Plaintiff's Reply or Plea to Claimant's Complaint. 
 
 347. Trial of the Issue between Claimant . ud Plaintiff— This Is- 
 
 sue is Tried before the Issue between Plaintiff and Gar- 
 nishee. 
 
 348. Trial to Jury— Right to Begin— Burden of Proof. 
 
 349. Conduct of Trial— Rights and Defenses. 
 
 350. Judgment between Plaintiff and Claimant — Judgment in Fa- 
 
 vor of Plaintiff. 
 
 851. Judgment in Favor of Claimant. 
 
 (414) 
 
Ch. 15] BRINGING IN CLAIMANTS. § 330 
 
 General Considerations. 
 
 What to Do When Claimants are Disclosed. 
 
 § 329. It frequently happens that the answer al- 
 leges that persons other than the defendant claim to 
 own the property or debt in respect to which the plain- 
 tiff seeks to charge the garnishee, and sometimes such 
 persons come into court themselves to claim it. The 
 first thing for the plaintiff to do, in such cases, is to 
 take issue upon the garnishee's answer, if it is desired 
 to controvert it; for the time for doing so will prob- 
 ably elapse before the claimant's rights could be de- 
 termined.^ He should then immediately proceed to 
 bring in the claimant. 
 
 When Claimant may Prosecute a Suit of His Oion. 
 
 § 330. After the claimant has been made a party 
 to the garnishment suit by appropriate proceedings, he 
 cannot prosecute an action against the garnishee in 
 any other court for the same subject-matter." After 
 becoming a party to these proceedings, his prior or 
 subsequent suit is affected by them in the same man- 
 ner that they affect actions brought by the defendant.* 
 But, unless made such a party, his statutory right to 
 intervene is not exclusive, and he i^iay ignore the gar- 
 nishment, and proceed directly agamst the garnishee,* 
 
 1 Little Wolf River Imp. Co. v. Jackson, 66 Wis. 42, 49, 27 N. W. 
 625. 
 
 = Rotliseliild v. Burton, 57 Mich. 540, 25 N. W. 49; Toy v. East 
 Dallas Bank (Tex. Civ. App.) 28 S. W. 137; German Bank v. Amer- 
 ican Fire Ins. Co., 83 Iowa, 491, 50 N. W. 53. 
 
 3 Evitt V. Lowery Banking Co., 96 Ala. 381, 11 South. 442. As to 
 actions by defendant, see ante, §§ 195, 220. 
 
 4 Rutherford v. Fullerton, 89 Ga. 353, 15 S. E. 471; Rice v. Jones, 
 
 (415) 
 
§ 331 LAW OF GARNISHMENT. [Ch. 15 
 
 or intervene in a chancery proceedinpf brought to de- 
 termine the title to the property; ° yet he cannot su- 
 persede the garnishment, and transfer the litigation to 
 a court of equity, by making all interested persons par- 
 ties to his bill, and restraining further proceedings at 
 law, for the plaintiff has a right to be heard, and have 
 all interests determined in the garnishment suit." 
 
 Other Suits by Plaintiff or Garnishee. 
 
 § 331. On the other hand, a bill filed by the plain- 
 tiff, in the same manner, and for the same purpose, 
 will be dismissed by the court ex mero motu, because 
 it seeks to accomplish only what might have been ob- 
 tained in the garnishment proceedings,' which, in 
 themselves, after the claimant is made a party, are in 
 the nature of a bill of interpleader.' But when the 
 same court has a law and equity side, it may, in some 
 states, on motion and proper showing, transfer the 
 case to the equity side of the court." And when a 
 person is sued upon a demand in one state, and gar- 
 nished for it in another, under circumstance^' which 
 render it uncertain whether the judgment of either 
 court would insure him against double liability, h» 
 may maintain a bill of interpleader in a still differei" 
 state, where he can get service upon all parties, an.. 
 
 103 N. C. 226, 9 S. E. 571; First Nat. Bank of Leadville v. Leppel, 
 9 Colo. 594, 13 Pac. 776. 
 
 c Howe V. Jones, 57 Iowa, 130, 8 N. W. 451. 
 
 « Baldwin v. Hosmer, 101 Mich. 432, 59 N. W. 669; Hey ward v. 
 Phillips-Buttoff Manuf'g Co., 97 Ala. 533, 11 South. 837. 
 
 1 Wilson V. Chichester, 107 N. C. 386, 12 S. E. 139; Sweet v. Oli- 
 ver, 56 Iowa, 744, 10 N. W. 275; Egbert v. Hawk, 12 N. .T. Eq. 80. 
 
 s Bragg V. Gay nor, 85 Wis. 4'^S, 481, 55 N. W. 919, 923. 
 
 Lockett V. Rumbough, 40 Fed. 523. 
 (416) 
 
Ch. 16] BEIJNGING IN CLAIMANTS. § 332 
 
 thus compel tbem to settle their rights between them- 
 selves." And when a person summoned as garnishee 
 in a federal court was afterwards sued in a state court 
 by a claimant, it was held that he could sustain a bill 
 of interpleader in the state court, although it does not 
 appear, from the published opinion, that the claimant 
 might not have been compelled to litigate his rights as 
 a claimant in the garnishment suit." On the other 
 hand, it has been held that, after judgment against a 
 garnishee, he cannot maintain interpleader against a 
 claimant and the plaintiff in. garnishment.^" When 
 the owners of a building were garnished, it was held 
 that they could not interplead the garnishing creditors 
 of the contractors with claimants of labor liens on the 
 building, for the latter proceed against the building ir- 
 respective of the state of accounts between the owners 
 and the contractor, while the garnishing creditors de- 
 pend entirely upon an indebtedness due the con- 
 tractor. ^° 
 
 Origin and Purpose of Intervening Acts. 
 
 § 332. The practice of bringing in claimants to the 
 garnished property to defend their rights is compara- 
 tively new, and the rules regulating it can hardly be 
 said to be well settled yet.^* Before this proceeding 
 
 10 Fitch V. Brower, 42 N. J. Eq. 300, 11 Atl. 330; Briant v. Keed, 
 14 N. J. Bq. 271. 
 
 11 Moore V. Barnheisel, 45 Mich. 500, 8 N. W. 531. 
 
 12 Holmes v. Clark, 46 Vt. 22. 
 
 1 3 Ammendale Normal Institute v. Anderson, 71 Md. 128, 17 Atl. 
 1030. But see Hitchcock v. Lancto, 127 Mass. 514. 
 
 14 National Bank of Galena v. Chase, 71 Iowa, 120, 32 N. W. 202; 
 Moore v. Graham, 58 Mich. 25, 24 N. W. 670; Kirby v. Coi-nlng, 
 54 Wis. 59,9, 12 N. W. 69. 
 
 LAW GARNISH. — 27 (417) 
 
§ 333 LAW OF GAENIbHMENT. [Ch. 15 
 
 was adopted, the courts helped the plaintiff to make 
 his suit effectual by casting upon the garnishee the bur- 
 den of proving the validity of the claimant's title, and 
 holding that, if the claimant failed to furnish the nec- 
 essary evidence for that purpose, the garnishment 
 judgment was .conclusive against him." This method 
 threw an unjust burden upon the garnishee, a disin- 
 terested party, did not adequately protect the rights 
 of the claimant, and was certainly extending the doc- 
 trine of estoppel to its full limits, so as to seem almost 
 an invasion of the principle that, except in proceedings 
 purely in rem, none but parties are concluded by the 
 judgment. Most of the statutes now provide that 
 claimants of the property shall be summoned and made 
 parties to the suit, after which their rights are litigat- 
 ed«the same as in any action. 
 
 Action is Stayed till Claimant is Interpleaded. 
 
 § 333. Under these statutes there can be no deter- 
 mination of the liability of the garnishee, after he has 
 disclosed the claim, until the claimant is made a party 
 to the proceedings, and his rights have been finally 
 disposed of.^" If the plaintiff insists upon a judgment 
 against the garnishee without bringing in the claim- 
 
 i5Wentwoi-th v. Weymouth, 11 Me. 446; Giddings v. Coleman, 12 
 N. H. 153; Foster v. Sinkler, 4 Mass. 450; Wood v. Partridge, 11 
 Mass. 488. Compare Donald v. Nelson, 95 Ala. Ill, 10 South. 317. 
 
 16 Button V. Trader, 75 Mich. 295, 42 N. W. 834; Kennedy v. Mc- 
 Lellan, 76 Mich. 598, 43 N. W. 641; Lyon v. Ballentiue, 63 Mich. 97, 
 105, 29 N. W. 837; Rice v. Jones, 103 N. C. 226, 9 S. E. 571; Mans- 
 field V. Stevens, 31 Minn. 40, 16 N. W. 455; Look v. Brackett, 74 Me. 
 347; Kellogg v. Waite, 99 Mass. 501; Conshohocken Tube Co. v. Iron 
 Car Equipment Co., 167 Pa. St. 592, 31 Atl. 949; State Nat. Bank v. 
 Boatner, 39 La. Ann. 843, 2 South. 589; Conuoley v. Oheesborough, 
 (418) 
 
Ch. 16J BRINGING IN CLAIMANTS. § 333 
 
 ant," or if he fails to take proper steps, within a rea- 
 sonable time, to have the claimant summoned, the 
 court will dismiss the proceedings upon the applica- 
 tion of the garnishee/^ The claimant's rights cannot 
 be litigated till he is made a party to the proceedings 
 and given an opportunity to be heard. ^^ Orders and 
 
 21 Ala. 166; Donald v. Nelson, 95 Ala. Ill, 10 South. 317; Marston v. 
 Carr, 16 Ala. 325; Clark v. Pew, 62 Ala. 243. 
 
 "THE DUTY DEVOLVES ON THE PLAINTIFF to see tbat notice 
 issues, and the court is bound to suspend further proceedings against 
 the garnishee, and cause a notice to issue to the claimant to come 
 and propound his claim." Edwards v. Levinsohn, 80 Ala. 447, 2 
 South. 161; Wicks v. Branch Bank, 12 Ala. 594; Security Loan 
 Ass'n V. Weems, 69 Ala. 584. 
 
 If neither party derr.ands that the claimant be made a party, the 
 court may proceed without him. McKittrick v. Clemens, 52 Mo. 160. 
 
 FUNDS TO PAY ALL CLAIMS: When it appears that the gar- 
 nishee has sufficient funds in his hands to satisfy all claims and the 
 plaintiff's demand, it is not necessary to make claimants parties. 
 Whalen v. McMahon, 16 Colo. 373, 26 Pac. 583. 
 
 CLAIMANT OUT OF STATE: Held, that the suggestion of a 
 claimant outside the jurisdiction could not defeat the action, as the 
 statute is merely permissive, allowing claimants to appear. Wheeler 
 V. Winn, 38 Vt. 122. Contra, Levy v. Miller, 38 Minn. 526, 88 N. W. 
 700. 
 
 17 Smith V. Holland, 81 Mich. 471, 45 N. W. 1017; Jordan v. Har- 
 mon, 73 Me. 498. 
 
 18 Levy V. Miller, 38 Minn. 526, 38 N. W. 700; Boyd v. Cobbs, 50 
 Ala. 82; Look v. Brackett, 74 Me. 347; Mock v. King, 15 Ala. 60. 
 
 When the plaintiff, instead of interpleading the claimant, proceeds 
 against him as garnishee, he must be presumed to have abandoned his 
 proceedings against the original garnishee. Edwards v. Levinsohn, 
 80 Ala. 447, 2 South. 161. 
 
 19 Kennedy v. McLellan. 76 Mich. 598, 43 N. W. 041; First Nat. 
 Bank v. Mellen, 45 Mich. 413, 8 N. W. 80; Simpson v. Tippin, 5 Stew. 
 & P. (Ala.) 20S; Edwards v. Levinsohn, 80 Ala. 447, 2 South. 161; 
 Adams v. Filer, 7 Wis. 306; State ex rel. Rogers v. Judge of County 
 Court, 11 Wis. 50; McMahon v. Merrick, 33 Minn. 262, 22 N. W. 543; 
 Foy V. East Dallas Bank (Tex. Civ. App.) 28 S. W. 187. 
 
 (419) 
 
§ 334 LAW OP GARNISHMENT. [Ch. 15 
 
 decrees made in the case before he was made a party 
 are not adjudications as to him.^" If the claimant is 
 the real owner of the property, and is not made a party 
 to the proceedings, the garnishment judgment is con- 
 clusive against him only to the same extent that pay- 
 ments made to the principal defendant by the gar- 
 nishee would be, unless the claimant is estopped by his 
 own conduct. ^^ But, if summoned to appear and de- 
 fend, he is bound by the garnishment judgment, whe- 
 ther he appears or not.^^ If the claimant- does not ap- 
 pear when summoned, judgment should be rendered 
 against the garnishee for the amount admitted in his 
 answer. ^^ 
 
 When Claims may be Made. 
 
 § 334. When a claimant has been suggested and 
 properly summoned, he should present his claim at the 
 term of court at which he is summoned; but the court 
 may, in its discretion, extend the time within which 
 he may appear and assert his claim.^* The statutes 
 and decisions in the several states are not uniform as 
 to the time within which claims to the garnished prop- 
 erty may be made known and asserted. It has been 
 held that claimants may make their claims known, 
 and intervene, after the garnishee has been defaulted 
 for not answering, and has been summ'oned on scire fa- 
 cias; " or in the circuit court, after the defendant had 
 
 2 McJIahon v. Merrick, 33 Minn. 262, 22 N. W. 543. 
 21 See ante, §§ 203, 205. 
 2* See ante, § 204. 
 
 2 3 Sailer t. Insurance Co. of North America, 62 Ala. 221. 
 2 4 Ex parte Opclyke, 62 Ala. 68. 
 
 2 5 KnlKhts V. Paul, 11 Gray (Mass.) 225; Boylen v. Young, 6 Allen 
 (Mass.) 582. 
 (420) 
 
Ch. 15] 'beisging in claimants. § 334 
 
 appealed from the judgment rendered against the gar- 
 nishee in justice court; ^'' or after final judgment 
 against the garnishee, and an order entered directing 
 him to pay the money into court to satisfy the judg- 
 ment in the main action, at any time before the money 
 has been actually turned over to the plaintiff.^^ One 
 case is reported in Michigan in which, after absolute 
 judgment against the garnishee, and payment of it to 
 the plaintiff by the garnishee, a claimant was allowed 
 to intervene; and on his motion the judgment was set 
 aside, and an issue as to the ownership of the gar- 
 nished property made up and tried between the plain- 
 tiff and claimant, and verdict found for the claimant; 
 and the supreme court approved of the proceeding, and 
 ordered the garnishee discharged, saying that he could 
 recover what he had paid to the plaintiff, and the 
 claimant could proceed to collect his demand of the 
 garnishee.^' The payment of the money into court 
 certainly is not, in itself, any obstacle to the presenta- 
 tion of the claims upon it, for the parties may litigate 
 their right to it as well after as before; "" but, after 
 final judgment has been entered against the garnishee, 
 
 26 Daniels v. Clark, 38 Iowa, 556. 
 
 2 7 Union Pac. Ry. Co. v. Smersh, 22 Neb. 751, 36 N. W. 139; Ed- 
 wards V. Cosgro, 71 Iowa, 296, 32 N. W. 350; McGuire v. Pitts, 42 
 Iowa, 535. 
 
 2 8 First Nat. Bank v. Mellen, 45 Mich. 413, 8 N. W. 80. Compare 
 Krupp V. Tabor, 31 Mich. 174; Hey ward v. Phillips-ButtofC Manuf'g 
 Co., 97 Ala. 533, 11 South. 837. 
 
 In a case similar to the one in Michigan an application was denied, 
 it appearing that the judgment had stood undisturbed for two yefirs, 
 and there being evidence tlaat claimant knew of it. Lawrence Bank 
 of Pittsburg V. Kaney & Berger Iron Co., 77 Md. 321, 26 Atl. 119. 
 
 29 Edwards v. Cosgro, 71 Iowa, 296, 32 N. W. 350; Howe v. Jones, 
 57 Iowa, 130, 8 N. W. 451. 
 
 (421) 
 
§ 335 LAW OF GARNISHMENT. [Ch. 15 
 
 a claimant, asking to have the entry stricken off, and 
 the case opened anew, and that he be allowed to prove 
 his interest in the garnished property, must submit to 
 the discretion of the court in allowing or denying a 
 reopening of the case/" When the property was gar- 
 nished in an attachment suit, it was held, in Colorado, 
 that claimants have no right to intervene after the 
 trial of the main action/^ 
 
 Who may Suggest That There are Claimants. 
 
 Cluifiumt may Appear and Assert His Olaim. 
 
 § 335. Under many of the statutes, any person 
 claiming the debt or property garnished may come into 
 court, assert his title, and have an order of court mak- 
 ing him a party to the proceedings upon his own appli- 
 cation, although the garnishee has disclosed positively 
 that the property or debt belongs to the principal de- 
 fendant,''^ or has been defaulted for not answering at 
 
 so Dill V. Wilbur, 79 Me. 561, 12 Atl. 545. 
 
 SI Whalen v. MeMahon, 16 Colo. 373, 26 Pac. 583. 
 
 8 2 Dennis v. Twitchell, 10 Mete. (Mass.) 180; Daniels v. Clark, 38 
 Iowa, 556; WoM v. Vette, 17 ]\Io. App. 36; Webster v. Farnum, 60 
 N. H. 288; Hanaford v. Hawkins (R. I.) 28 Atl. 605; Haas v. Old 
 Nat. Bank, 91 Ga. 307, 18 S. E. 188; Clark v. Wiss, 34 Kan. 553, 9 
 Pac. 281; 3 How. Ann. St Mich. § 8085. 
 
 He may intervene to establish his claim, whether legal or equitable. 
 Marvel v. Babbitt, 143 Mass. 226, 9 N. E. 566. 
 
 Though the statute says, "the court may permit each claimant to 
 appear," etc., the claimant's risht to appear Is absolute, and it is 
 error for the court to refuse his application. Boylen v. Young, 6 
 Allen (Mass.) 582. 
 
 A claimant of the debt owed by the garnishee may intervene, as 
 well as a claimant of property in the garnishee's possession, though 
 the statute in terms mention the latter only. Crone v. Braun, 23 
 Minn. 239; Kean v. Doerner, 62 Md. 475. 
 (422) 
 
Ch. 15] BRINGING IN CLAIMANTS. § 336 
 
 all/* No good reason appears why he may not inter- 
 vene, without express statutory authority, if he volun- 
 teers to do so; "* but decisions to the effect that he 
 cannot are not wanting," and it is said that, when the 
 statute does not in terms allow the claimant to become 
 a party to the proceedings of his own motion, "the in- 
 tervention allowed in such cases is for the protection 
 of the garnishees, and, if they do not invoke it for them- 
 selves, another cannot do it for them. 'Courts of jus- 
 tice are not open, like tournaments, for errant knights 
 to enter and tilt at pleasure.' " ^^ 
 
 Garnishee may Suggest Claimants. 
 
 § 336. The garnishee is usually the party who dis- 
 closes that there is a claimant to the property or debt 
 in respect to which he is sought to be charged, and re- 
 quests that such a person be made a parly to the pro- 
 ceedings; and,- under these statutes, it is error for the 
 court to refuse to order that the claimant be made a 
 
 S3 Boylen v. Young, 6 Allen (Mass.) 582. 
 
 34 Sims V. Goettle, 82 N. C. 268; Blair v. Puryear, 87 N. C. 101; 
 Alamo Ice Co. v. Yancey, 66 Tex. 187, 18 S. W. 499. 
 
 But, If the court refuses his application to become a party, he can- 
 not have the ruling reviewed by appeal, unless he excepts. Parks v. 
 Adams, 113 N. C. 473, 18 S. B. 665. 
 
 3 5 Pennsylvania Steel Co. v. New Jersey Southern Ry. Co., 4 Houst. 
 (Del.) 572; Wimer v. Pritchartt, 16 Mo. 252; Boylen v. Young, 6 
 Allen, 582; Heyward v. Phillips-Buttoff Manufg Co., 97 Ala. 533, 11 
 South. 837; Lanham v. Lanham, 30 W. Va. 222, 4 S. E. 273. Com- 
 pare Hewitt V. Wagar Lumber Co., 38 Mich. 701; Cross v. Brown, 
 17 R. I. 568, 23 Atl. 761. 
 
 3 8 Porter v. West, 64 Miss. 548, 8 South. 207. See, also, Cahoon v. 
 Levy, 4 Oal. 243; Foster v. Sinkler, 4 Mass. 450; Muse v. Lehman, 
 30 Kan, 514, 1 Pac. 804. 
 
 (423i 
 
§ 337 LAW OF GARNISHMENT. [Ch. 15 
 
 party upon the garnishee's motion, or to proceed 
 against the garnishee's objection, without doing so." 
 
 Plaintiff's Right to Suggest Claimants. 
 
 § 337. Cases might arise in which the plaintiff 
 would want to suggest a claimant of the property, and 
 if he should, no one would be likely to raise any objec- 
 tion, which may account for the absence of decisions 
 upon his right to do so; but, when the claimant has 
 been suggested to the court, it is the plaintiff's duty to 
 have an order of court made summoning and inter- 
 pleading him, if he wishes to make his process effec- 
 tual, for he cannot, without such interpleader, charge 
 the garnishee."^ He also has an absolute right to have 
 the claimant interpleaded, and it is error for the court 
 to dismiss the suit, upon the suggestion or statement 
 by the garnishee that the property in his possession be- 
 longs to a stranger to the suit, until the plaintiff has 
 had a reasonable opportunity to move for an order that 
 he be summoned and interpleaded as provided by stat- 
 ute, or to overrule his motion therefor when made." 
 
 8 7 Alamo Ice Co. v. Yancey, 66 Tex. 187, 18 S. W. 499. 
 
 Held, that the statement of the garnishee that the property in his 
 possession belongs to and is the property of a certain person, but 
 failing to show that such perso" ever claimed to own it, does not 
 show that such person is a clai.jant, or entitle the garnishee to an 
 order interpleading him. John R. Davis Lumber Co. v. First Nat. 
 Bank of MUwauliee, 87 Wis. 435, 58 N. W. 743. 
 
 8 8 Edwards v. Levinsohn, 80 Ala. 447, 2 South. 161. 
 
 8 8 Easton v. Lowery, 29 Ala. 454; National Commercial Bank v. Mil- 
 ler, 77 Ala. 168, 54 Am. Rep. 50. 
 
 The plaintiff may move for the order to make the claimant a party 
 at any time before the garnishee has been discharged for want of it, 
 though subsequent to the term at which the garnishee's answer was 
 filed. Camp v. Hatter, 11 Ala. 151. 
 (424) 
 
Ch. 15] BRINGING IN CLAIMANTS. § 339 
 
 Defendant's Right to Suggest Claimants. 
 
 § 338. Sometimes the principal defendant disclaims 
 all interest in the property in the garnishee's posses- 
 sion, and attempts to have the proceedings dismissed 
 on that ground, or have some person whom he claims 
 to ovs^n the property summoned to show his rights to 
 it.*° What reason he has to complain that his debts 
 are being paid with some other person's money is not 
 plain, and the fact of his objecting would in most 
 cases excite suspicion of a sinister motive; but, aside 
 from this fact, he is not a party to the garnishment 
 suit unless made so, and, having no interest at stake, 
 he has no standing upon which to invoke the action of 
 the court. *^ 
 
 Authority of the Court to Bring in Claimants of its Own Motion. 
 
 § 339. Whether the court may take notice that oth- 
 ers than the defendant claim the property in the gar- 
 nishee's hands, when the fact does not appear from 
 the proceedings, and is not suggested by any party to 
 the suit, or by such claimants in court, and of its own 
 motion require that such persons be made parties to 
 the suit, seems to have arisen in an early case in Cali- 
 fornia, in which it is said that the court cannot pre- 
 sume the existence of claims.*^ But, when the evi- 
 
 40 Meadowcroft v. Agnew, 89 111. 469; Lee v. Robinson, 15 R. I. 369, 
 5 Atl. 290; Daniels v. Clark, 38 Iowa, 556. 
 
 When the defendant has an interest In the property as mortgagor, 
 and comes in to see that the mortgage is sustained, and the mort- 
 gagee's interest protected, held, that he has a right to do so. P. Cox 
 Manuf'g Co. v. August, 51 Kan. 59, 32 Pac. 636. So when he acts 
 as agent for the claimant. Meadowcroft v. Agnew, 89 HI. 469. 
 
 41 Parks V. Adams, 113 N. 0. 473, 18 S. E. 665; Lanham v. Lanham, 
 30 W. Va. 222, 4 S. B. 273. 
 
 4 2 Cahoon v. Levy, 4 Cal. 243. 
 
 (425) 
 
§ 341 LAW OF GARNISHMENT. • [Ch. 15 
 
 dence before it shows that there are claimants to the 
 property, why may not the court, under these statutes, 
 interplead such claimants of its own motion, and is- 
 sue summons to them? *' In some states it is its duty 
 to do so.^* 
 
 Order of Court Interpleading Claimants. 
 
 § 340. The claimant has no standing in court till 
 an order has been entered making him a party,*" but 
 the objection is waived when the plaintiff and the court 
 have recognized and treated him as such.*" 
 
 Nature and Sufficiency of the Notice to the 
 Claimant. 
 
 § 341. It is difficult to determine, in most cases, 
 what manner of notice is contemplated by these stat- 
 utes ; and, as the garnishee may, without any order or 
 
 43 Hanaford v. Hawkins (R. I.) 28 Atl. 605; Chesapeake, etc., Ry. 
 Co. V. Paine, 29 Grat. (Va.) 502. But see Marx v. Parker, 9 Wasli. 
 473, 37 Pac. 675. 
 
 ** Baston v. Lowery, 29 Ala. 454; Donald v. Nelson, 95 Ala. Ill, 10 
 South. 317; Edwards v. liCvinsohn, 80 Ala. 447, 2 South. 161. 
 
 ■s^'Rowell 7. Felker, 54 Vt. 526. Compare Tyler v. Coolbaugh, 7 
 Iowa, 474. 
 
 Held, that a commissioner lias no authority to enter such an order, 
 or recognize the claimant, against the plaintiff's dejection. Rowell v. 
 Felker, above. 
 
 Held, that the couii: may impose, as a condition to the Intervener's 
 right to intervene, that he sign a stipulation to restore to a receiver 
 of the court the garnished fund taken into a foreign court. Brown v. 
 Gary, 43 111. App. 482. 
 
 *8 Williams v. Pomeroy, 27 Minn. 85, 6 N. W. 445; Cornish v. Rus- 
 sell, 32 Neb. 397, 49 N. W. 379. Compare Sheldon v. Hinton, 6 111. 
 App. 216. 
 (426) 
 
€h. 15] BRINGING IN CLAIMANTS. § 341 
 
 summons by the court, protect himself from future lia- 
 bility to any one by simply informing him of the pro- 
 ceedings, and commanding him to appear and assume 
 the defense, or be bound by the judgment therein ren- 
 dered,*^ the question is not likely to arise often, for 
 the claimant usually feels that he can better protect 
 his rights by becoming a party himself, than by merely 
 assuming the defense of the garnishment suit. The 
 summons to the claimant is a notice, and not a plead- 
 ing.*^ In a Michigan case it was held that it need not 
 amount to a legal process; and it would seem to have 
 been the opinion of the court that all that is necessary, 
 tinder these statutes, is such a summons from the court 
 as would operate as an estoppel if emanating from the 
 garnishee.*' A summons to appear and answer as 
 garnishee is not sufficient.'" Informal notice by the 
 plaintiff's counsel to an attorney of the time when a 
 motion for judgment against the garnishee will be 
 made is not sufficient, when it is proven that such at- 
 torney was not attorney for the claimant when the no- 
 tice was served, which fact was known to the gar- 
 nishee." When the court made an order directing 
 that an alleged claimant "should be made a party, and 
 that notice should be served on him," without prescrib- 
 ing how it should be served, the order was construed as 
 meaning personal service within the state, and per- 
 sonal service without the state was held not to be suffl- 
 
 47 See ante, § 204. 
 
 4 8 Smith V. Barclay, 54 Minn. 47, 55 N. W. 827. 
 
 49 Rothschild V. Burton, 57 Mich. 540, 25 N. W. 49; Bragg v. Gay- 
 nor, 85 Wis. 468, 481, 55 N. W. 919, 923. 
 
 so Edwards v. Levinsohn, 80 Ala. 447, 2 South. 161; Rice v. Jones, 
 103 N. 0. 226, 9 S. B. 571 ; Emmons v. Dowe, 2 Wis. 322, 358. 
 
 SI Osner v. Dieterle (Pa. Sup.) 10 Atl. 43. 
 
 (427) 
 
§ 342 LAW OF GARNISHMENT. [Ch. 15 
 
 cient, because substituted service by publication, or 
 service outside the jurisdiction, to have been warrant- 
 ed, must have been so directed; the court expressly 
 refusing to decide the question vphether valid service 
 could be made out of the state without publication in 
 the state." Where there are several claimants all 
 should be summoned.^^ 
 
 Forming the Issue betw^een the Claimant and the 
 
 Plaintiff. 
 
 Claimant Has Affirmatie and Files First Pleading. 
 
 § 342. The claimant having been made a party to 
 the proceedings, and summoned, the affirmative is up- 
 on him, and it is his duty to file the first pleading, in 
 the nature of a complaint, setting up his claim,"* and 
 
 C2 Levy v. Miller, 38 Minn. 526, 38 N. W. 700. 
 
 Held, that a nonresident may be served by publication. Sheppard 
 V. Buford, 7 Ala. 91. 
 
 S3 Evans v. Norman, 14 Ala. 662. 
 
 04 Smith v. Barclay, 54 Minn. 47, 55 N. W. 827; Leslie v. God- 
 frey, 55 Minn. 231, 56 N. W. 818; Russell v. Thayer, 30 Vt. 525; 
 Carpenter v. McClure, 37 Vt. 127, 132. Compare Mahoney v. Mc- 
 Lean, 28 Minn. 63, 9 N. W. 76. 
 
 Where the assignee was summoned and appeared, and the record 
 did not show any allegation by the plaintifE against him, it was 
 held that an order discharging the assignee will be upheld, as it is to 
 be presumed that the plaintiff has abandoned the pursuit of his gar- 
 nishment. Goodwin v. Brooks, 6 Ala. 836. This is a suit in which 
 the claimant is defendant. Heyward v. Phillips-ButtofC Manuf'g Co., 
 97 Ala. 533, 11 South. 837. 
 
 PLAINTIFF MAY WAIVE CLAIMANT'S COMPLAINT; When 
 the case has reached the supreme court, it is too late to object that no 
 allegations have been filed by the claimant, where a trial has been 
 had of the claims of the respective parties, upon their substantial 
 merits. Towne v. Leach, 32 Vt. 745. 
 
 After the case has been referred to a commissioner, it Is too late 
 (428) 
 
Ch. 15] BRINGING IN CLAIMANTS. § 343 
 
 alleging such facts as he thinks he will be able to 
 prove, and which, if proved, will show that his right to 
 the property is paramount; °° or he may simply ap- 
 pear and disclaim all interest in it, in which case the 
 garnishee may be charged for the amount of his ad- 
 mitted liability." The claimant is entitled to judg- 
 ment only on the grounds alleged in his complaint. '^^ 
 
 He must Rely on the Strength of His Own Claim. 
 
 § 343. The claimant is made a party merely for the 
 purpose of determining whether he has such an inter- 
 est in the property that the plaintiff cannot have a 
 judgment condemning it to the satisfaction of his claim 
 against the principal defendant. Therefore, the only 
 
 to object to the introduction of evidence before liim, on tlie ground 
 that no allegations have been filed by the claimant. "On the coming 
 in of the commissioner's report, if it had appeared that the plaintiff 
 had been prejudiced in the hearing before the commissioner, through 
 the failure of the claimant to file allegations setting forth his claim 
 to the funds, the county court might, in the exercise of a sound dis- 
 cretion, have ordered such allegations filed, and that the matter be 
 reheard before the commissioner. But, if that court was satisfied 
 that the plaintiff had not been prejudiced in the hearing before the 
 commissioner by such neglect or failure of the claimant, it vyould 
 not be the duty of that court to set aside the report and order a new 
 hearing. The report of the commissioner furnished the facts neces- 
 sary for the foundation of the judgment of the county court. Whether 
 the absence of allegations filed by the claimant furnished any substan- 
 tial ground for setting aside the report of the commissioner was ad- 
 dressed to the sound discretion of the county court." Carr v. Sevene, 
 47 Vt. 574. 
 
 5 5 Scott V. Stallsworth, 12 Ala. 25; Reynolds v. Collins, 78 Ala. 94; 
 McMahon v. Merrick, 33 Minn. 262, 22 N. W. 543; Wynne v. State 
 Nat. Bank of Ft. Worth, 82 Tex. 378, 17 S. W. 918; Bassett v. Par- 
 sons. 140 Mass. 169, 3 N. E. 547. 
 
 5 6 Mortland v. Little, 137 Mass. 339. 
 
 5T King v. Bird, 85 Iowa, 535, 52 N. W. 494; Stein v. Seaton, 51 
 Iowa, 18, 50 N. W. 576. 
 
 (429) 
 
§ 344 LAW OP GABNISHMENT. [Ch. !■> 
 
 matter in which he is concerned is to show his supe- 
 rior title. He must rely upon the strength of his own 
 claim/* 
 
 Cannot Allege Errors in the Proceedings nor Contest the Gar- 
 nishee's Liability. 
 
 § 344. It is immaterial to him whether the gar- 
 nishee is liable to the defendant for one dollar or a 
 thousand/" or whether it is subject to be reached by 
 
 6 8 Boylen v. Young, 6 Allen (Mass.) 582; Giftord v. Rockett, llO- 
 Mass. 71; Clark v. Gardner, 123 Mass. 358; Moors v. Goddard, 147 
 Mass. 287, 17 N. E. 532; Hewitt v. FoUett, 51 Wis. 264, 272, S N. W. 
 177; National Bank of Galena v. Chase, 71 Iowa, 120, 32 N. W. 202; 
 Blackman v. Smith, 8 Ala. 203; Carpenter v. McClure, 37 Vt. 127;. 
 Davis V. Fogg, 58 N. H. 159. 
 
 NATURE OP ISSUE ILLUSTRATED: The question is, not 
 whether the property belongs to the defendant, but whether it belongs 
 to the claimant. Teiehman Commission Co. v. American Bank, 27 
 Mo. App. 676. 
 
 A claim to the specific debt garnished must be shown, and not a 
 mere right of action against the defendant. Sibley v. Johnson, 43 
 Vt. 67; Speed v. Holmes (Ky.) 32 S. W. 404. Compare Boylen v. 
 Young, supra. 
 
 The plaintiff cannot maintain his claim by showing that the prop- 
 erty belongs to himself, regardless of the garnishment. Lawrence v. 
 McKenzie, 88 Iowa, 432, 55 N. W. 505; Johnson v. Brant, 38 Kan. 
 754, 17 Pac. 794. 
 
 The wife of the defendant having intervened as claimant, the ques- 
 tion as to whether it is exempt in favor of the defendant is not in 
 issue, unless that is the ground of her claim to it. Stein v. Seaton, 51 
 Iowa, 18, 50 N. W. .576. 
 
 Adverse claimants cannot, in the garnishment suit, litigate between 
 themselves as to their respective rights to the tjarnished property- 
 Peck Bros. & Co. V. Stratton, 118 Mass. 406. And see post, § 351. 
 
 The advancer of purchase money becomes a simple creditor, enti- 
 tled to nothing purchased, against a garnishment of it. Sandei's v.. 
 Page, 11 Colo. 518, 19 Pac. 468. 
 
 6 9 Hewitt V. FoUett, 51 Wis. 264, 272, 8 N. W. 177. 
 (430) 
 
Ch. 15] BRINGING IN CLAIMANTS. § 345 
 
 garnishment/" To deny that, at the time of service of 
 the garnishment summons, the garnishee was indebted 
 or had in his possession any property would be to prove 
 himself out of court." He cannot take advantage of 
 errors in the proceedings, either against the garnishee 
 or the principal defendant,"^ nor contest the gar- 
 nishee's liability in any other manner than above 
 stated."' 
 
 Garnishee not a Party to This Issue. 
 
 § 345. The garnishee, — a stakeholder, merely — is 
 interested in the proceedings between the claimant 
 and the plaintiff only to see that the former is prop- 
 erly interpleaded and summoned, and himself thus in- 
 sured from double liability. He is not a necessary or 
 proper party to the issue between them, and should 
 not be joined as a par-ty."* 
 
 «o Scott V. Stallsworth, 12 Ala. 25. 
 
 81 Clark V. Gardner, 123 Mass. 358; Moors v. Goddard, 147 Mass. 
 287, 17 N. E. 532. 
 
 8 2 Blaekman v. Smith, 8 Ala. 203; Clark v. Few, 62 Ala. 243; Iselin 
 V. Simon (Minn.) 64 N. W. 143. Compare Black v. Brisbin, 8 Minn. 
 360 (Gil. 253) ; Lackett v. Rumbaugh, 45 Fed. 23, 34. 
 
 63 Dalton V. Dalton, 48 Me. 42; Germania Sav. Bank v. Peuser, 40 
 La. Ann. 796, 5 South. 75. 
 
 Admitting this proposition, held that, on knowledge of the facts 
 shown by the claimant, it would be the duty of the court to withhold 
 a judgment which might inure to the injury of parties not before the 
 court. Fairchild v. Lampson, 37 Vt. 407. 
 
 64 Fish V. Keeney, 91 Pa. St. 138; Hewitt v. FoUett, 51 Wis. 264, 
 272, 8 N. W. 177; Carpenter v. McClure, 37 Vt. 127, 132. 
 
 GARNISHEE'S RELATION TO ISSUE: Held, that an agreed 
 statement of facts, upon which the issue between the claimant and the 
 plaintiff is to be submitted to the court for decision, need not be sign- 
 ed by the garnishee. Segee v. Downes, 143 Mass. 240, 9 N. E. 565. 
 
 But, if the statement is made, not merely for the purpose of de- 
 termining whether the claimant could maintain his claim, but for the 
 
 (431) 
 
§ 346 LAW OP GARNISHMENT. [Ch. 15 
 
 Plaintiff's Reply or Flea to Claimant's Complaint. 
 
 § 346. The claimant's complaint having been duly 
 filed, the plaintiff should take action upon it within the 
 time allowed him therefor, and, unless answered, it 
 will be taken as true.''^ It is error for the court to 
 dismiss the proceedings, upon motion of the inter- 
 veners, before the expiration of the time allowed bj' 
 law for the plaintiff to take issue upon or answer the 
 complaint. ''^ If, because of the omission of some alle- 
 gation, or for some matter appearing upon the face of 
 the complaint, it does not show sufficient facts to sup- 
 port the claimant's contention, he may file a demurrer 
 to it.°^ And he should do so if he intends to take ad- 
 vantage of the defect, for his subsequent pleadings 
 
 purpose of determining whether the garnishee could be charged, 
 without reference to his answer, the court will not consider it, unless 
 it is signed by the garnishee. Massachusetts Nat. Bank v. Bullock, 
 120 Mass. 86. 
 
 The garnishee has no right to be heard as to the validity of the 
 claimant's claim, when the latter is in court for that purpose. Segee 
 V. Downes, 143 Mass. 240, 243, 9 N. E. 565. 
 
 When the garnishee is the claimant, ordinarily, the whole question 
 may be tried at once. Russell v. Thayer, 30 Vt. 525. 
 
 6 6 Williams v. Van Metre, 10 111. 293; Meadowcroft v. Agnew, 89 
 111. 469. 
 
 «e Leslie v. Godfrey, 55 Minn. 231, 56 N. W. 818. 
 
 67 Wynne v. State Nat. Bank, 82 Tex. 378, 17 S. W. 918; Alamo 
 lee Co. V. Yancey, 66 Tex. 187, 18 S. W. 499. 
 
 DEMURRER ADMITS FACTS PLEADED: When no issue of 
 fact is taken upon an interpleader in a proceeding by garnishment, 
 but a demurrer is filed to the same, the facts alleged in the inter- 
 pleader wiU be deemed admitted, and no proof of them is required. 
 Meadowcroft v. Agnew, 89 111. 469. 
 
 SPECIFIC STATEMENTS OF OBJECTION: An objection to a 
 claim for "legal insufficiency," and because it does not "meet the re- 
 quirements of the statute," is too general. Larey v. Baker, 85 Ga. 
 087, 11 S. E. 800. 
 (432) 
 
Ch. 15] BRINGING IN CLAIMANTS. § 347 
 
 may furnish the necessary matter, and, if they do, that 
 cures the omission.** If the complaint states suffi- 
 cient facts to sustain the claimant's claim, but he can 
 avoid the effect by other facts, he should set them up 
 by way of answer, or, if not, he may simply take issue 
 on the facts stated in the complaint. "^ The plaintiff 
 need not allege, in his answer to the claimant's com- 
 plaint, that he is a creditor of the principal defendant, 
 that he has attached the property by garnishment, 
 or any fact that is alleged in his own complaint or dec- 
 laration, or appears in the proceedings in the action.^" 
 This follows from what we have already said as to the 
 nature of the issue. 
 
 Trial of the Issue between the Claimant and 
 Plaintiff. 
 
 This Issue is Tried before the Issue between the Plaintiff and Gar- 
 nishee. 
 
 § 347. In the regular and natural order of proceed- 
 ings, the issue between the claimant and plaintiff 
 should be tried before the issue between the plaintiff 
 and the garnishee, because, if it results in favor of the 
 claimant, it renders all further proceedings unneces 
 sary, or, at least, determines to what extent the plain- 
 
 6 8 McMahon v. Merrick, 33 Minn. 262, 22 N. W. 543. 
 
 After taliing issue on the complaint, and proceeding to trial, it is 
 too late for tlie plaintiff to object that it was not verified, or was ont 
 of time. Kirby v. Coming, 54 Wis. 599, 12 N. W. 69. 
 
 All informality in forming the issue between the plaintiff and claim- 
 ant is waived by going to trial. Towne v. Leach, 32 Vt. 747; Larey 
 V. Baker, 85 Ga. 687, 11 S. E. 800. 
 
 69 Smith V. Barclay, 54 Minn. 47, 55 N. W. 827; Leslie v. Godfrey, 
 65 Minn. 231, 56 N. W. 818. 
 
 7 Smith V. Barclay, 54 Minn. 47, 55 N. W. 827. 
 
 LAW GARNISH. 28 (433) 
 
§ 348 LAW OF GARNISHMENT. [Ch. 15 
 
 tiff cannot have the garnishee charged; and, on the 
 other hand, if it results in favor of the plaintiff, it ends 
 all the rights of the claimant in the case, and the plain- 
 tiff may proceed the same as if there had been no in- 
 terpleader at all. This is the course usually indorsed 
 by the courts, in the absence of express statutory regu- 
 lation.'^^ However, it is a matter of practice merely. 
 Whichever issue is first tried, the court can arrive at 
 the justice of the case. Sometimes the opposite 
 course is pursued,''^ and sometimes the two issues are 
 tried together.'^ If, by his answer, the garnishee con- 
 fess absolute liability, unless the property belongs to 
 the claimant, and elects to pay the same into court, 
 and be discharged from further liability, as provided 
 by statute, there is but one issue to try, and the ques- 
 tion cannot arise; but, if the garnishee does not pay 
 over the property, and become discharged, as suggest- 
 ed, the plaintiff must, after the defeat of the claimant, 
 pursue his remedy against the garnishee.''* 
 
 Trial to Jury — Right to Begin — Burden of Proof. 
 
 § 348. There has been considerable discussion as to 
 whether the claimant has an absolute right to a trial 
 by jury, but there are few decisions upon the ques- 
 tion." If such a right exists, it may be waived ; and 
 
 71 Hewitt V. FoUett, 51 Wis. 264, 272, 8 N. W. 177. 
 
 7 2 Germania Sav. Bank v. Peuser, 40 La. Ann. 796, 5 South. 75; 
 Wheatley v. Strobe, 12 Cal. 92, 99. 
 
 7 3 Moors V. Goddard, 147 Mass. 287, 290, 17 N. B. 532; Farrell v. 
 Farnan (Md.) 5 Atl. 622. 
 
 7 4 Pecard v. Home, 91 Mich. 346, 51 N. W. 891. See, also, post, § 
 350. 
 
 7 6 JURY TRIAL: Upon the general subject of the right to trial 
 by jury, see cases cited on page 504 of Oooley, Const. Lira. (6th Ed.j. 
 
 After the garnishee and claimant had elected to try the case before 
 (434) 
 
Ch. 15] BRINGING IN CLAIMANTS. § 348 
 
 he cannot complain that he has been deprived of a jury- 
 trial, when he has not requested it.'" The position of 
 the claimant in the trial of the issue is almost identic- 
 al with that of a plaintiff in an ordinary action, while 
 the garnishment plaintiff occupies the place of a de- 
 fendant. The claimant has the affirmative of the is- 
 sue, as mentioned in a preceding section," and, log- 
 ically, is the proper person to open and close. '^ The 
 burden is upon him to establish his claim by a pre- 
 ponderence of evidence.'" The claimant must prove 
 
 the court on motion, and after part of the testimony had been taken, 
 they abandoned such motion, filed a plea, and demanded a trial to a 
 jury. Held, that the court did not err in allowing the claimant a 
 jury trial, inasmuch as a jury was the only tribunal competent, ex- 
 cept by consent. Farrell v. Farnan (Md.) 5 Atl. 622. 
 
 '6 Smith V. Barclay, 54 Minn. 47, 55 N. W. 827. 
 
 " See ante, § 342. 
 
 7 8 Randolph Bank v. Armstrong, 11 Iowa, 515; Sanger v. Flow, 
 1 C. C. A. 56, 48 Fed. 152; Thomp. Trials, c. 9; Best, Beg. & Rep. 
 Contra, Grady v. Hammond, 21 Ala. 427. 
 
 "Such a proceeding is a suit, in which the plaintiff is the actor and 
 the claimant is the defendant." Heyward v. Phillips- Buttoff Manuf'g 
 Co., 97 Ala. 533, 11 South. 837; Treadway v. Ti-eadway, 56 Ala. 390; 
 McAdams v. Beard, 34 Ala. 478. 
 
 7 9 Donnelly v. O'Connor, 22 Minn. 309; North Star Boot & Shoe Co. 
 V. Ladd, 32 Minn. 381, 20 N. \V. 334; Smith v. Barclay, 54 Minn. 47, 
 55 N. W. 827; Haynes v. Thompson, 80 Me. 125, 13 Atl. 276; Poole 
 V. Carhart, 71 Iowa, 37, 32 N. W. 16; National Bank of palena v. 
 Chase, 71 Iowa, 120, 32 N. W. 202; Clark v. Few, 62 Ala. 243; Reyn- 
 olds V. Collins, 78 Ala. 94; Waco State Bank v. Stephenson Manuf'g 
 Co., 4 Tex. Civ. App. 137, 23 S. W. 234; Hart v. Rafter, 78 Ga. 478, 
 3 S. B. 699; Cornish v. Russell, 32 Neb. 397, 49 N. W. 379. But see 
 Horn V. Booth, 22 111. App. 385; Bassett v. Garth waite, 22 Tex. 230. 
 
 It is error to discharge the garnishee, on motion of the claimant, 
 without proof, under the claimant's complaint, showing his superior 
 rights. National Bank of Galena v. Chase, supra. 
 
 If there is any evidence to support the finding in favor of the 
 
 (435) 
 
§ 348 LAW OF GARNISHMENT. [Ch. 15 
 
 the amount of his claim °° by competent evidence of 
 competent witnesses." 
 
 claimant, it will not be disturbed. Dietz v. Bignall, 86 Micb. 292, 49 
 N. W. 148. 
 
 Tbe evidence for the intervener being sufficient to make out a prima 
 facie case, and being uncontradicted, be is entitled to judgment, Eas- 
 ley V. Gibbs, 29 Iowa, 129; and it is error for the court to pass judg- 
 ment against bim merely because the evidence looks strange, it not 
 being inconsistent. Second Nat. Bank of Winona v. Donald, 56 Minn. 
 491, 58 N. W. 269. 
 
 He must prove his case, not merely against the defendant, but 
 against tbe plaintifC, who, by proper adverse proceedings, has put the 
 question to proof. Richardson v. Rogers, 45 Mich. 591, 595, 8 N. W. 
 526. 
 
 EVASIVE STATEMENTS: A just regard for the rights of cred- 
 itors requires that the claimant maka full, true, and explicit answers 
 to all questions propounded to him concerning his claim; and evasive 
 answers to questions put to him, or want of candor on his part, will 
 be given tbe strongest construction against him, and cause bis claim, 
 justly, to be viewed with suspicion, or disallowed. Thompson v. Reed, 
 77 Me. 425, 1 Atl. 241; Hart v. Rafter, 78 Ga. 478, 3 S. E. 699. 
 
 WHAT CLAIMANT MUST SHOW: Proof of an assignment, re- 
 citing that it is given for a valuable consideration, will not entitle the 
 assignee to the property, against tbe plaintifC in garnishment, in the 
 
 80 Poole V. Carhart, 71 Iowa, 37, 32 N. W. 16. 
 
 81 Hamilton Buggy Co. v. Iowa Buggy Co., 88 Iowa, 864, 55 N. W. 
 496; Ripley v. People's Sav. Bank, 119 111. 341, 9 N. E. 894. 
 
 COMPETENT EVIDENCE: Neither the declarations of tbe gar- 
 nishee out of court (Phillips v. Thurber, 56 Ga. 393), nor Ms answer 
 filed in the cause, are competent evidence in favor of the claimant 
 (Scott V. Stallsworth, 12 Ala. 25. Compare Donnelly v. O'Connor, 22 
 Minn. 309). But tbe garnishee himself is a competent witness, and 
 may testify for the claimant. Wilson v. Hanson, 20 N. H. 375. And 
 so may the principal defendant. Randolph Bank v. Armstrong, 11 
 Iowa, 515. 
 
 In Illinois and Massachusetts the claimant cannot contradict the 
 answer of the garnishee. Meadowcroft v. Agnew, 89 111. 469; First 
 Nat. Bank of Clinton v. Bright, 126 Mass. 585; Sheehan v. Marston, 
 132 Mass. 161. 
 (436) 
 
Ch. 15] BRINGING IN CLAIMANTS. § 349 
 
 Conduct of Trial — Rights and Defenses. 
 
 § 349. The issue is tried in the same manner as in 
 ordinary cases/^ and the claimant must have the same 
 opportunities to protect his interests as are accorded 
 to any party to an action.*" The commissioner ap- 
 pointed to talce the testimony has no authority to pass 
 upon the claimant's rights.'* The claimant having 
 rested his case, the plaintiff may give any competent 
 
 absence of proof of what the consideration was, or that there was 
 any. Haynes v. Thompson, 80 Me. 125, 13 Atl. 276; Scott v. Stalls- 
 worth, 12 Ala. 25. 
 
 The production of a note of the garnishee, with an indorsement on 
 it, is not sufficient to show that the indorsement was made before the 
 service of the garnishment. Camp v. Hatter, 11 Ala. 151, 155. The 
 garnishment and assignment being on the same day, the burden is on 
 the claimant to show that the assignment was first. Bergman v. 
 Sells, 39 Ark. 97. 
 
 Proof of a policy of insurance made payable to the claimant as his 
 interest may appear is no evidence that he has any interest. Don- 
 nelly V. O'Connor, 22 Minn. 309. 
 
 The claimant, being a receiver of the defendant's property, appoint- 
 ed by a court of another state on the same day that the garnishment 
 summons was served, must fail, unless he shows that his appoint- 
 ment was prior in time to the service of the garnishment summons. 
 Cohen v. Supreme Sitting of Order of Iron Hall (Mich.) 63 N. W. 30i. 
 
 Compare Clark v. Raymond (Iowa) 66 N. W. 86. 
 
 Fraud will not be presumed, and an assignment valid upon its face 
 is sufficient, and the burden is on the one attacking it. Sheldon v. 
 Hinton, 6 111. App. 216; Horn v. Booth, 22 111. App. 385. 
 
 82 Leslie v. Godfrey, 55 Minn. 231, 56 N. W. 818. 
 
 8 3 Donnelly v. O'Connor, 22 Minn. 309. 
 
 WAIVER: But if he fails to avail himself of his rights, when 
 allowed full opportunity at the proper time, he cannot complain. Id. 
 
 EQUITABLE RIGHTS: He may assert his rights, whether legal 
 or equitable. Marvel v. Babbitt, 143 Mass. 226,9 N.E. 566; Jenness 
 V. M^harff (Me.) 32 Atl. 908; Cram v. Shackleton, 64 N. H. 44, 5 AtL 
 715. 
 
 84 Boutwell V. McClure, 30 Vt. 674. 
 
 (437) 
 
§ 350 LAW OF GARNISHMENT. [Ch. 15 
 
 evidence '' to disprove his claim, or sliow that it is 
 void or fraudulent/^ 
 
 Judgment bet-wreen the PlaintiflF and the Claimant. 
 
 Judgment in Fator of Plaintiff. 
 
 § 350. Judgment may be rendered against the 
 claimant, either for his failure to appear vi^hen prop- 
 erly summoned," or for his failure to follow up his ease 
 after appearing, or for his failure to prove his claim 
 upon the trial.*' If judgment goes against him, it is 
 that he be forever concluded from asserting his claim 
 against the garnishee for the property or debt for 
 which the garnishee may be charged in the suit,*" and 
 that the plaintiff recover against him the costs expend- 
 ed about the trial of the issue; "" and the claimant has 
 
 8 5 The answer of the garnishee is not competent evidence for the 
 plaintiff against the claimant. Easley v. Gibbs, 29 Iowa, 129. Con- 
 tra, Morrell v. Rogers, 1 Me. 328; Reynolds v. Collins, 78 Ala. 94. 
 
 Declarations of the defendant out of court ai'e not evidence against 
 the claimant. Chamberlin v. Gilman, 10 Colo. 94, 14 Pac. 107. 
 
 8 6 He may show that the judgment under which the claimant 
 claims is fraudulent, and coUusively entered. Bloodgood v. Meissner, 
 84 Wis. 452, 54 N. W. 772. Sommer v. Gilmore, 160 Pa. St. 129, 28 
 Atl. 654. 
 
 Great latitude of inquiry should be allowed when it is attempted to 
 show fraud. North Star Boot & Shoe Co. v. Ladd, 32 Minn. 381, 20 N. 
 W. 334; Cummings v. Fearey, 44 Mich. 39, 6 N. W. 98. 
 
 87 Mobile & O. Ry. Co. v. Whitney, 39 Ala. 468; Sailer v. Insur- 
 ance Co. of North America, 62 Ala. 221; Evans v. Norman, 14 Ala. 
 662. See, also, ante, § 204. 
 
 8 8 See ante, § 204. 
 
 8 9 See ante, § 204. 
 
 90 Peabody v. Maguire, 79 Me. 572, 12 Atl. 630. 
 
 •JUDGMENT FOR COSTS ONLY: The plaintiff can have no judg- 
 ment against the claimant, except for costs. He cannot have a judg- 
 (438) 
 
Ch. 15] BRINGING IN CLAIMANTS. § 350 
 
 no further connection with the case/' unless he ap- 
 peals."^ But it does not necessarily follow, from judg- 
 ment for the plaintiff in the trial with the claimant, 
 that the plaintiff is entitled to a judgment against the 
 garnishee,"^ or that the claimant has no right of action. 
 All that is adjudicated is that the right of the plaintiff 
 in garnishment is paramount to that of the claimant."* 
 The plaintiff is not thereby entitled to judgment 
 against the garnishee, unless the answer of the gar- 
 nishee admits liability to the defendant."^ If the gar- 
 nishee's answer admits an absolute liability to the de- 
 ment against him for the amount of his claim against the principal 
 defendant. Pecard v. Home. 91 Mich. 346, 51 N. W. 891. 
 
 When a claimant appears, and the money in court is paid to him 
 upon his application, judgment cannot thereafter be rendered against 
 him therefor in favor of the plaintiff. Echol's Appeal, 129 Pa. St. 
 554, 18 Atl. 559. 
 
 When a claimant recovers about half of what he claims, costs need 
 not be awarded to either party. White v. Kilgore, 78 Me. 323, 5 
 Atl. 70. Or the court may allow the claimant costs. Kirby v. Corn- 
 ing, 54 Wis. 599, 12 N. W. 69. 
 
 Held, that judgment for costs cannot be rendered against a sup- 
 posed claimant, who has been duly summoned, but never appeared. 
 Evans v. Norman, 14 Ala. 662. 
 
 91 Hewitt V. FoUett, 51 Wis. 272, 8 N. W. 177. 
 
 82 See post, §§ 403-409. 
 
 83 Brown v. Gummersell, 30 Mo. App. 341. 
 
 8* Oppenheimer v. Hamrick, 86 Iowa, 584, 53 N. W. 312. 
 
 9 5 Mobile cfe O. Ry. Co. v. Whitney, 39 Ala. 468. 
 
 REFUSAL OF CLAIMANT TO APPEAR: The fact that the 
 claimant refused to appear under the terms imposed and leave granted 
 by the court does not prevent the discharge of the garnishee. The 
 issue between the plaintiff and the garnishee remains as if no mo- 
 tion or order for the claimant to appear had been made, and the gar- 
 nishee, upon that issue, can be charged only upon competent evidence 
 of his having in his possession property belonging to the defendant. 
 If the garnishee show that the property really belongs to the claimant, 
 he must be discharged, though the claimant refuse to appear. Cram 
 V. Khackieton, 64 N. H. 44, 5 Atl. 715. 
 
 (43D) 
 
§ 351 LAW OF GARNISHMENT. [Ch. 15 
 
 fendant, except as affected by the claimant's conten- 
 tion, the plaintiff is entitled to a judgment against the 
 garnishee, upon judgment being rendered against the 
 claimant, in the same maimer as if no claimant had 
 been suggested. °° Under any other circumstances, 
 disposing of this issue merely clears the way for the 
 plaintiff to prosecute his suit against the garnishee." 
 
 Judgment in Favor of Olaimant. 
 
 § 351. If the judgment be in favor of the claimant, 
 it is that the garnishment proceedings be dismissed 
 and the garnishee be discharged; "' or that the plain- 
 tiff do not recover against the garnishee for so much 
 of the garnished property as the claimant has shovt^n 
 to belong to himself,^'' and that from the plaintiff the 
 claimant recover his costs about his suit expended."* 
 
 'oo Stockwell V. Silloway, 113 Mass. 382; Carpenter v. McClure, 37 
 Yt. 127, 132. 
 
 07 Cram v. Shackleton, 64 N. H. 44, 5 Atl. 715; Evans v. Norman, 
 14 Ala. 662; Pecard v. Home, 91 Mich. 346, 51 N. W. 891. 
 
 08 Carpenter v. McClure, 37 Vt. 127, 132; First Nat. Banis v. Mel- 
 len, 45 Micb. 413, 8 N. W. 80; Hewitt v. Follett, 51 Wis. 272, 8 N. W. 
 177. 
 
 AFTER PAYMENT TO PLAINTIFF: If the plaintiff has already 
 been paid the garnished property by the garnishee, the judgment also 
 includes a judgment that the garnishee recover the same bacli from 
 the plaintiff. First Nat. Banii v. Mellen, 45 Mich. 413, 8 N. W. 80. 
 
 99 Whalen v. McMahon, 16 Colo. 373, 26 Pac. 583; GifCord v. Rock- 
 ett, 119 Mass. 71. 
 
 100 Klrby v. Coming, 54 Wis. 599, 12 N. W. 69; Hewitt v. Follett, 
 51 Wis. 272, 8 N. W. 177; Seals v. Halloway, 77 Ala. 344; Lackett 
 V. Rumbaugh, 45 Fed. 39. 
 
 COSTS WITHOUT STATUTE: Though the statute do not provide 
 for an allowance of costs to a claimant by that designation, yet he 
 occupies the position of a defendant party to the suit, and, as such, 
 is entitled to costs. Mahoney v. McLean, 28 Minn. 63, 9 N. W. 76. 
 
 In the absence of statute, costs are discretionary with the court 
 in such cases, following the rule which governs in equitable proceed- 
 |440) 
 
Ch. 15] BRINGING IN CLAIMANTS. § 351 
 
 He cannot, in that proceeding, recover judgment 
 against the garnishee, but is left to pursue his remedy 
 the same as if no garnishment suit had been 
 brought/" 
 
 Ings. White v. Kilgore, 78 Me. 323, 5 Atl. 70; Moore v. Graham, 
 58 Mich. 25, 24 N. W. 670; National Union Bank v. Brainerd, 65 Vt. 
 291, 26 Atl. 723; Morrison v. McDermott, 6 Allen (Mass.) 122. 
 
 When both the plaintiff and the claimant claim the whole fund, 
 and the trial results in a division of it nearly equally between them. 
 It is not inequitable to give costs to neither party. White v. Kilgore, 
 78 Me. 323, 5 Atl. 70. Or costs may be allowed to the claimant. 
 Kirby v. Corning, 54 Wis. 599, 12 N. W. 69. 
 
 When the claimant is called upon to establish his rights to the 
 property garnished in justice court, and appeals from a judgment 
 against him to the circuit court, where he sustains his claim, he can- 
 not be taxed with costs, in the absence of a statute providing for 
 them in such cases, but is entitled to costs in his favor. Winne v. 
 Lenawee Circuit Judge, 74 Mich. 329, 42 N. W. 279. 
 
 COSTS AGAINST GARNISHEE: When a garnishee causes a 
 claimant to be unnecessarily impleaded, the claimant may recover 
 costs against him. Little Wolf River Imp. Co. v. Jackson, 66 Wis. 
 42, 27 N. W. 625. Otherwise, the garnishee cannot be taxed with 
 costs on this issue. Tupper v. Cassel, 45 Miss. 352; Morrison v. Mc- 
 Dermott, 88 Mass. 122. 
 
 101 Carpenter v. McClure, 37 Vt. 126, 132; Hewitt v. Follett, 51 Wis. 
 264, 8 N. W. 177; Tupper v. Cassel, 45 Miss. 352; First Nat. Bank 
 V. Mellen, 45 Mich. 413, 8 N. W. 80. 
 
 He can have no judgment, except in the matter of costs, against 
 either plaintifC, defendant, or garnishee. Moors v. Goddard, 147 Mass. 
 287, 290, 17 N. B. 532; GlfCord v. Rockett, 119 Mass. 71. 
 
 ADVERSE CLAIMANTS CANNOT LITIGATE their respective 
 rights between themselves in the garnishment suit. The only judg- 
 ment that can be given, if the plaintiff abandons the proceedings, is 
 that they be dismissed, and the garnishee discharged. Peck Brothers 
 & Co. V. Stratton, 118 Mass. ^06; Deering v. Richardson-Kimball Co. 
 (Cal.) 41 Pac. 801; Shattuck v. Smith, 16 Vt. 132, 134. But see Wing 
 V. Woodward, 56 Vt. 723. Held that, when the matter is before a 
 court of equity, the court may adjudicate all rights in one decree. 
 Lackett v. Rumbaugh, 45 Fed. 23. 
 
 (441) 
 
§ 352 LAW OF GARNISHMENT. [Ch. 16 
 
 CHAPTER XVI. 
 
 THE ISSUE BETWEEN THE PLAINTIFF AND THE GAR- 
 NISHEE. 
 
 352. Issue — How Formed — Procedure Purely Statutory. 
 
 353. The Affidavit a Declaration — The Answer a Plea. 
 
 354. New Declaration or Action against Garnishee. 
 
 355. Irregularities are Waived by Going to Trial. 
 
 356. Notice of Taking Issue on the Answer of the Garnishee. 
 
 357. Specific Allegations — How Far Required— Must Show NatiU'e 
 
 of Claim, and State Cause of Action. 
 
 358. Proof of Facts, not Alleged — ^Amendments. 
 
 359. Attacking Sufficiency of Allegations. 
 
 360. When Issue may be Taken on the Answer — Reasonable Time 
 
 —Statutory Period. 
 
 361. Taking Issue after Time Limited. 
 
 362. After Judgment or Motion for Judgment. 
 
 363. Nature and Scope of the Issue. 
 
 Issue — How Formed. 
 
 Procedure Purely Statutory. 
 
 § 352. The methods of bringing the question of the 
 garnishee's liability to issue under the different stat- 
 utes are very dissimilar; and, inasmuch as the remedy 
 is purely statutory and artificial, and the only author- 
 ized mode of conducting it is regulated and defined by 
 statute,^ it is difficult to give the subject any general 
 treatment. "If a statute gives to a court of record ju- 
 risdiction over a new subject, without prescribing the 
 
 1 Peninsular Stove Co. v. Circuit Judge of Wayne Co., 85 Mich. 
 400, 48 N. W. 549; Townsend v. Cass Circuit Judge, 39 Mich. 407; 
 Maynards v. Corn well. 3 Mich. 309; Jones v. Langhorne, 19 Colo. 206, 
 34 Pac. 997; Case v. Noyes, 16 Or. 329, 19 Pac. 104; Smith v. Con- 
 rad, 23 Or. 206, 31 Pac. 398. 
 (442) 
 
Oh. 16] ISSUE BETWEEN PLAINTIFF AND GAKNISHEE. § 353 
 
 mode of proceeding or of trial, it is to be conducted 
 and tried according to the course and forms of the 
 common law. But if a mode of proceeding out of the 
 course of the common law is prescribed, it must be 
 strictly followed." ^ 
 
 The Affidavit a Declaration — The Answer a Plea. 
 
 § 353. One mode provided is that the affidavit in 
 garnishment shall stand as the plaintiff's declaration 
 against the garnishee whenever either party shall de- 
 mand an issue and trial of the garnishee's liability,^ 
 and that the disclosure shall be deemed the garnishee's 
 plea,* and that, upon the trial of the issue thus de- 
 manded, the affidavit should be deemed denied, except 
 so far as admitted by the disclosure of the garnishee." 
 When various persons liable to the defendant severally 
 are garnished upon independent writs, founded upon 
 
 s Welsh V. Blaekwell, 14 N. J. Law, 344, 347; Stewart v. Walters, 
 58 N. .T. Law, 274. 
 
 s How. Ann. St. Mich. § 80(38; Sanb. & B. Ann. St. Wis. §§ 2703, 
 3722; Piatt v. Sauk County Bank, 17 Wis. 222; Fearey v. Cummings, 
 41 Mich. 476, 1 N. W. 946; Bethel v. Linn, 63 Mich. 464, 30 N. W. 84; 
 Imperial Fire Ins. Co. v. Shimer, 96 111. 580. 
 
 NO FORMAL PLEADING: The issue should he made up without 
 the formality of pleading. Kergin v. Dawson, 6 111. 86; Corbin v. 
 Ooddard, 94 Ind. 419. 
 
 IN WEST VIRGINIA, when the garnishee answers, denying lia- 
 bility, the court may, without formality of pleading, impanel a jur3% 
 on the plaintifC's motion, and try the question. Lanham v. Lanham, 
 50 W. Va. 222, 3 S. E. 273. 
 
 IN ILLINOIS, the feigned issue is made up between the defendant 
 and the garnishee. Warne v. Kendall, 78 IE. 598. 
 
 i Sanb. & B. Ann. St. Wis. § 2763; Piatt v. Sauk County Bank, 17 
 Wis. 222. 
 
 - How. Ann. St. Mich. § 8068; Bethel v. Linn, 63 Mich. 464, 30 
 N. W. 84. 
 
 (443) 
 
§ 354 LAW OF GARNISHMENT. [Ch. 16 
 
 the same affidavit, the one affidavit will, under these 
 statutes, serve as a declaration in each of the garnish- 
 ment suits.* 
 
 New Declaration or Action against Garnishee. 
 
 § 354. Under other statutes, the garnishee having 
 answered, the plaintiff may file a declaration or supple- 
 mental complaint against him, alleging the facts upon 
 which he claims to recover.'' A provision somewhat 
 similar in its effect is that the court may make an or- 
 der allowing the plaintiff to bring an action against the 
 garnishee upon his answer, proceeding in the same 
 manner as in ordinary actions.' In several of the 
 Southern states the statutes provide that, when the 
 
 5 State Sav. Bank of Detroit v. Circuit Judge of Wayne Co., 95 
 Micti. 100, 54 N. W. 632. 
 
 ■> Gen. St. Minn. c. 66, § 175; How. Ann. St. Mieli. § 8037; Maynards 
 v. Corn well, 3 Mich. 309; Ruby v. Schee, 51 Iowa, 422, 1 N. W. 741. 
 
 SECOND SUMMONS UNNECESSARY: If tlie plaintiff has re- 
 covered a judgment against the principal defendant, he may, imder 
 the Micliigan justice statute, declare against the garnishee immedi- 
 ately upon his mailing disclosure, and no summons to show cause is 
 necessary. Elser v. Rommel, 98 Mich. 74, 56 N. W. 1107. 
 
 SHOWING FOR PERMISSION TO TAKE ISSUE: The plaintiff 
 is entitled to file a supplemental complaint, under the Minnesota stat- 
 ute, only on permission, and upon a showing of facts to the court. A 
 plain statement that he helieyes the answer is false is not sufficient. 
 Mahoney v. McLean, 28 Minn. 63, 9 N. W. 76. 
 
 s Shahan v. Tallman, 39 Kan. 185, 17 Pac. 823; Exchange Bank 
 T. Gulick, 24 Kan. 359; Secor v. Witter, 39 Ohio St. 218, 231; Parker 
 V. Page, 38 Cal. 522; Hartman v. 01 vera, 51 Cal. 501; Linden thai v. 
 Burke, 2 Idaho; 535, 21 Pac. 419; Vaughan v. Furlong, 12 R. I. 127; 
 West Side Bank v. Pugsley, 47 N. Y. 368; St. Louis, I. M. & S. Ry.' 
 Co. v. Richter, 48 Ark. 349, 3 S. W. 56. See, also, post, § 391. 
 
 ACTION ON ERRONEOUS ORDER: .Failure to give notice, im- 
 mediately upon filing the answer, that the same is unsatisfactory, 
 and without such notice procuring an order that the property be paid 
 (M4) 
 
Ch. 16] ISSUE BETWEEN PLAINTIFF AND GARNISHEE. § 354 
 
 plaintiff is not satisfied with the garnishee's disclosure, 
 he shall file an affidavit stating that he believes the an- 
 swer to be untrue or incorrect, and thereupon a feigned 
 issue is formed, under the direction of the court, to try 
 the question of the garnishee's liability.' The direc- 
 
 into court, and on such order bringing an action, which is afterwards 
 dismissed, was held not to prevent the plaintiff suing on the answer. 
 Exchange Bank v. Gulick, 24 Kan. 359. As to the procedure under 
 the Kansas justice court act, see Fitch v. Manhattan Fire Ins. Co., 
 23 Kan. 366. 
 
 ORDER ESSENTIAL: No action can be sustained unless the proper 
 order authorizing it to be brought has been entered. Herrlich v. 
 Kaufmann, 99 Cal. 271, 33 Pac. 857. 
 
 IN WASHINGTON, the court makes an order that the principal 
 defendant bring an action against the garnishee, for the benefit of 
 the plaintiff, to test the question of the garnishee's liability. Everton 
 V. Parker, 3 Wash. 331, 28 Pac. 536. 
 
 9 Myatt V. Lockhart, 9 Ala. 91; Donald v. Nelson, 95 Ala. Ill, 10 
 South. 317; Abies v. Miller, 12 Tex. 109; Adkins v. Watson, Id. 199; 
 ElUson V. Tuttle, 26 Tex. 283; Phoenix Ins. Co. of Brooklyn v. Willis, 
 70 Tex. 12, 6 S. W. 825; Empire Car-Rooting Co. v. Macey, 115 111. 
 399, 8 N. E. 417; Hurd's Rev. St. 111. c. 62, § 7. 
 
 IN COI;ORADO, the plaintiff's declaration is an affidavit controvert- 
 ing the answer of the garnishee, and is deemed denied without any 
 rejoinder, and the issue thus formed is tried as in other cases. Code 
 Colo. 1887, § 128; Jones v. Langhorne, 19 Colo. 206, 34 Pac. 997. 
 
 AFFIDAVIT THAT ANSWER IS INCORRECT: In Alabama the 
 affidavit may be made by the attorney for the plaintiff. Paulks v. 
 Heard, 31 Ala. 516; Donald v. Nelson, 95 Ala. Ill , 10 South. 317. But 
 in Texas it must be made by the plaintiff himself. Givens v. Taylor, 
 6 Tex. 315. 
 
 The affidavit need not set up sufficient facts to authorize a recovery 
 against the garnishee in an ordinary suit. Phcenix Ins. Co. of Brook- 
 lyn V. Willis, 70 Tex. 12, 6 S. W. 825, 829. All that Is necessary is 
 an affidavit of the incorrectness of the answer. Marston v. Carr, 10 
 Ala. 325; Donald v. Nelson, 95 Ala. Ill, 10 South. 317; Empire Car- 
 roofing Co. V. Macey, 115 111. 390, 3 N. B. 417. 
 
 Without this it is fatally defective. Ti-uitt v. Griffin, 61 111. 26. 
 
 If the plaintiff does not stop there, but proceeds to set up facts by 
 
 (445) 
 
§ 355 LAW OF GARNISHMENT. [Ch. lt> 
 
 tion which the court can exercise in making up this is- 
 sue relates to the form of the issue only. It can give 
 no direction as to what the allegations shall be.^" 
 Still another method of disposing of the question is 
 by scire facias against the garnishee to show cause 
 why judgment should not be rendered against him." 
 
 Irregularities are Waived by Going to Trial. 
 
 § 355. Whatever is the authorized practice in fram- 
 ing the issue, all irregularities are waived by taking 
 part in the subsequent proceedings without objecting 
 that the issue has not been properly framed.^' For 
 
 which he seeks to charge the garnishee, he thereby renders the affi- 
 davit insufficient, when the facts stated are not such as show that 
 the garnishee is chargeable. Bonald v. Nelson, 95 Ala. Ill, 10 
 South. 317. 
 
 AN UNVERIFIED TRAVERSE is, under these statutes, fatally 
 defective. Brake v. Curd-Sinton Manuf'g Co. (Ala.) 14 South. 77^. 
 
 But the plaintiff's subsequent allegations in forming the issue need 
 not be under oath, unless the statute requires it. Phoenix Ins. Co. of 
 Brooklyn v. Willis, 70 Tex. 12, 6 S. W. 825, 829. 
 
 10 Lindsay v. Morris, 100 Ala. 546, 13 South. 619. Phoenix Ins. Co. 
 of Brooklyn v. Willis, 70 Tex. 12, 6 S. W. 825. 
 
 11 Tweedy v. Nichols, 27 Conn. 518; Guptill v. Ayer, 149 Mass. 49, 
 20 N. E. 449; Egbert v. Hawk, 12 N. J. Eq. 80. See, also, ante, § 316. 
 
 12 Imperial Fire Ins. Co. v. Shimer, 96 111. 580; Kirby v. Corning, 
 54 Wis. 599, 12 N. W. 69. 
 
 TRIAL WITHOUT ISSUE: "There was no traverse of this al- 
 legation, and no issue formed upon such notice, as required by stat- 
 ute; but, testimony having been introduced by the defendant to prove 
 the fact stated in the notice, without any issue being formed, such 
 irregularity was waived." Singer v. Townsend, 53 Wis. 120, 226, 10- 
 N. W. 365. 
 
 "It seems that appellant [garnishee] entered into the trial without 
 making any objection on account of the failure of the appellee to file 
 a controverting affidavit, and without taking any steps to have formal 
 issues made. * * ♦ Appellee did not controvert any of the state- 
 ments made in the answer, and he therefore could not have sworn 
 (446) 
 
Ch. 16] ISSUE BETWEEN PLAINTIFF AND GARNISHEE. § 355 
 
 example, it has been held that the issue may be made 
 up orally if neither party requires it to be in writing, 
 and after proceeding to trial upon the issue thus form- 
 ed neither party can object.^' Again, it was held, in 
 Nebraska, under a statute providing for an action 
 against the garnishee in case his answer is unsatisfac- 
 
 that the answer of the garnishee was not correct. The failure to 
 form the issues before entering upon the trial, however, presents a 
 more difficult question. It has been held that our statute, in such 
 cases, does not require formal pleadings. * * * Appellant, having 
 gone through the trial without objecting to the manner of proceeding, 
 should not now be heard to complain that the record fails to show 
 that the necessary issues were made. It was as much his duty to 
 show that the necessary issues were formed as it was that of his 
 adversary." Swearingen v. Wilson, 2 Tex. Civ. App. 157, 21 S. W. 74. 
 
 IS KeUy v. Gibbs, 84 Tex. 143, 19 S. W. 380; Swearingen v. Wilson, 
 2 Tex. Civ. App. 157, 21 S. W. 76. But see Roberts v. Barry, 42 
 Miss. 260. 
 
 A garnishee moved the court to dismiss the proceedings had to 
 contest his answer on the grounds (1) that the affidavit for the same 
 did not state that the answer was untrue; (2) that no issue was 
 tendered in the time and manner provided by statute. The court 
 overruled the motion, and the garnishee appealed to the supreme 
 court, which affirmed the action of the lower court, and, after reciting 
 the facts, proceeded as follows: "The attorney for the plaintiff stated 
 [at the trial] that the said garnishee, at the time of said garnishment, 
 and at the time the answer was made, had money belonging to the 
 defendant amounting to $113.50. The attorney for the garnishee 
 then stated that the said garnishee did not have, at the time of the 
 service of said garnishment, or at the time of making said answer, 
 $113.50 belonging to the defendant. Thus an issue was tendered by 
 the plaintiff, and accepted and joined in by the garnishee. This was 
 a waiver by the garnishee of the several irregularities in respect of 
 the time when the affidavit of contest was filed, the insufficiencies of 
 that affidavit, etc., alleged in the motion made by the garnishee after 
 the issue was made up; and the court did not err in denying those 
 motions, even if it be conceded that they were absolutely meritori- 
 ous." Birmingham Nat. Bank v. Mayer (Ala.) 16 South. 520. 
 
 (447) 
 
§ 356 LAW OF GARNISHMENT. [Ch. 16 
 
 tory, that if the garnishee departs from the special 
 statutory proceeding by filing an answer in the form of 
 answers filed in civil actions, and the plaintiff there- 
 upon files a reply, denying each and every allegation 
 contained in the answer, and upon the issue thus form- 
 ed the parties proceed to trial without objection, the 
 garnishee cannot complain of the irregularity to obtain 
 a reversal of the judgment rendered against him on 
 such trial/* But, in Oregon, it was held that the writ- 
 ten allegations and interrogatories which the statute 
 provides that the plaintiff shall serve upon the gar- 
 nishee are in the nature of a complaint, and, where 
 they are not served, no valid judgment can be rendered 
 against the garnishee, though he waive the omission. ^° 
 
 Notice of Talcing Issue on the Answer of the Garnishee. 
 
 § 356. Unless the statute requires a formal demand 
 of issue upon the answer, none is necessary, and no- 
 ticing the issue for trial is a sufficient intimation to 
 the garnishee that the statutory issue is taken. ^° It 
 is the garnishee's duty to take notice of all that is done 
 in the case at the term of court at which his answer is 
 made, and therefore no notice need be served on him 
 of a demand of issue made by the plaintiff at that term, 
 when the statute does not expressly require it; " but, 
 
 1* Burlington & M. R. Ry. Co. v. Chicago Lumber Co., IS Neb. 303, 
 25 N. W. 94. 
 
 15 Smith V. Conrad, 23 Or. 206, 31 Pac. 398; Case v. Noyes, 16 Or. 
 329, 19 Pac. 104. 
 
 16 Piatt V. Sauk County Bank, 17 Wis. 222. 
 
 17 Cross V. Spillman, 93 Ala. 170, 9 South. 362; Security Ass'n v. 
 Weems, 59 Ala. 588; Chase v. Foster, 9 Iowa, 429; Mandeville v. 
 Askew, 78 Ga. 18. 
 
 (448) 
 
Oh. 16] ISSUE BETWEEN PLAINTIFF AND GARNISHEE. § 357 
 
 if the issue is not taken till a subsequent term, lie is en- 
 titled to notice/* 
 
 Specific Allegations — How Far Required. 
 
 ■Show Nature of Claim, and State Cause of Action. 
 
 § 357. Of course, the garnishee is interested to have 
 the issue made specific enough to enable him to pre- 
 pare his defense," and it has been held that this is the 
 test of sufficiency; ^° but it is said by other courts that 
 the plaintiff must allege everything necessary to make 
 the record show a complete defense for the garnishee 
 to any future action by the defendant.^^ Again, it is 
 said that the plaintiff must allege the facts with suffi- 
 cient particularity that a definite issue can be formed 
 thereon.^'' In some courts the test of sufficiency is 
 
 I IS liOckhart y. Johnson, 9 Ala. 223; Kienne v. Anderson, 13 Iowa, 
 565. Contra, Chase v. Foster, 9 Iowa, 429. 
 
 Appearance without notice is a waiver of the want of it. Kienne 
 T. Anderson, supra. 
 
 Held, that this notice must be served on the garnishee personally, 
 and not on his attorney. Carter v. Koshland, 12 Or. 492, 8 Pac. 556. 
 
 i!) Fowler V. Vulliamson, 52 Ala. 16; Welsh v. Blackwell, 14 N. J. 
 I^aw, 344; Tim v. Franklin, 87 Ga. 93, 13 S. E. 259. 
 
 The words "rights and credits" are not sufficiently specific on scire 
 facias. The writ should specify the nature of the property. Neal v. 
 Oook, 10 N. .T. Law, 337. 
 
 ARGUMENTATIVE AND DESULTORY AVERMENTS, present- 
 ing no direct issue on the truth of the answer, should be stricken out 
 •on motion, as insufficient. Sanders v. Miller, 60 Ga. 554. 
 
 20 Adkins v. Watson, 12 Tex. 199; Phoenix Ins. Co. of Brooklyn v. 
 Willis, 70 Tex. 12, 6 S. W. 825. 
 
 21 Lomerson v. Hoffman, 24 N. J. Law, -674. Compare Tyler v. 
 •Coolbaugh, 7 Iowa, 474. 
 
 22 NATURE AND AMOUNT OF LIABILITY— AMENDMENTS : 
 "This requirement manifestly intends that the tender shall allege a 
 «tate of facts showing a liability on the part of the garnishee to the 
 
 LAW GARNISH. — 29 (449) 
 
§ 357 I;AW QV GARNISHMENT. [Ch. 16 
 
 that the allegations state a cause of action in favor of 
 the defendant against the garnishee." If he is re- 
 quired to make such allegations as the defendant 
 would have to make to enable him, as plaintiff, suing 
 on the demand, to maintain an ordinary action against 
 the garnishee, there is no good reason why he should 
 be asked to do more, and this has generally been con- 
 sidered to be the limit of what can be demanded of 
 him; ^* but that much is not always required.^' From 
 the very nature of the controversy, the plaintiff can- 
 not, and therefore should not, be required to plead 
 facts with the same particularity as in actions be- 
 
 def endant, or possession of property by the garnishee belonging to the 
 defendant, and that these facts shall be so stated that a definite is- 
 sue can be joined thereon. * * * There was a tender of issue filed, 
 general in form, which alleged that the garnishees were indebted to 
 the defendant, or did have property in their hands belonging to him. 
 This tender is clearly insutflcient under the present statute, in that 
 it does not set forth the amount of the indebtedness, or nature thereof, , 
 or how evidenced, nor does it set forth what property of the defend- 
 ant the garnishees have in their possession. But, though defective in 
 these particulars, it was not frivolous on its face. It would have been 
 sufficient to try the case upon, if not objected to. It was capable of 
 amendment, so as to cure the omissions." Lindsay v. Morris, 100 Ala. 
 546, 13 South. 619. 
 
 23 Everton v. Parker, 3 Wash. St. 331, 28 Pac. 536; Case v. Noyes, 
 16 Or. 329, 19 Pac. 104. 
 
 2 4 Cockrill V. Mize (Ky.) 12 S. W. 1040; Groschke v. Bardenheimer, 
 15 Mo. App. 353. 
 
 2 5 Empire Car-Rooflng Co. v. Macey, 115 111. 390, 3 N. E. 417; Tur- 
 ner V. Rosseau, 21 Ga. 240; Phoenix Ins. Co. of Brooklyn v. Willis, 70 
 Tex. 12, 6 S. W. 825. 
 
 When the answer consists of a general denial, followed by specific 
 matter, the plaintiff may take issue on the general answer without 
 filing interrogatories to clear up the specific matter. Bebb v. Preston, 
 3 Iowa, 325; Hobson v. Kelly, 87 Mich. 187, 49 N. W. 533. Compare 
 Myatt V. Lockhart, 9 Ala. 91. 
 (450) 
 
Ch. 16] ISSUE BETWEEN PLAINTIFF AND GARNISHEE. § 358 
 
 tween parties who have personal knowledge of all the 
 facts involved.^" The garnishee must be supposed to 
 have a better knowledge of the dealings between him- 
 self and the defendant than the plaintiff has.^" It has 
 been generally held that it is not necessary to allege 
 that a holding of the garnishee is fraudulent in order 
 to prove the fact,^* and certainly it is not necessary to 
 allege that judgment has been recovered in the main 
 action, for that appears by the record, and need not be 
 proved.'" 
 
 Proof of Facta not Alleged — Amendments. 
 
 § 358. When the plaintiff does set out the facts up- 
 on which he bases his claim to have the garnishee char- 
 ged, thus presenting an issue of fact, he cannot depart 
 therefrom, and ask recovery upon grounds not plead- 
 ed,^" unless, in the exercise of its discretion, the court 
 allows him to amend his pleadings," which, in a 
 proper case, it will do, even after an appeal."^ 
 
 26 Ruby V. Schee, 51 Iowa, 422, 1 N. W. 741. 
 
 2 7 Strong V. Hollon, 39 Mich. 411. 
 
 BILL OF PARTICULARS: Held, that the garnishee is not entitled, 
 as a matter of right, to a bill of particulars of what the plaintiff seeks 
 to establish. Id. 
 
 28 Davis V. Mendeuhall, 19 Minn. 113, 128; Pearey v. Cummlngs, 41 
 Mich. 376, 1 N. W. 946; Cummings v. Fearey, 44 Mich. 39, 6 N. W. 
 98; Jaseph v. People's Sav. Bank, 132 lud. 39, 31 N. E. 524; E. B. 
 Miller & Co. v. Plass, 11 Wash. 237, 39 Pac. 956; Cornish v. Russell, 
 
 32 Neb. 397, 49 N. W. 379. Contra, Freese v. Co-operative Coal Co., 
 67 Iowa, 42, 24 N. W. 583. 
 
 29 Henny Buggy Co. v. Patt, 73 Iowa, 485, 35 N. W. 587. 
 
 3 Freese v. Co-operative Coal Co., 67 Iowa, 42, 24 N. W. 583; Britt 
 v. Bradshaw, 18 Ark. 530. 
 
 31 Butman v. Hobbs, 35 Me. 227; Sears v. Thompson, 72 Iowa, 61. 
 
 33 N.'W. 364; Henny Buggy Co. v. Patt, 73 Iowa, 485, 35 N. W. 587. 
 3 2Bebb V. Preston, 3 Iowa, 325; Lomerson v. Hoffman, 24 N. J. 
 
 Law, 674. 
 
 (451) 
 
§ 360 LAW OF GARNISHMENT. [Ch. 16 
 
 Attacking Insufficient Allegations. 
 
 § 359. The pleadings in mailing this issue may be 
 attacked in the same manner as other pleadings,^^ and 
 defects therein are, in the same manner, cured by not 
 raising the objection in season and in a proper man- 
 ner.'* A tender of issue not being frivolous on its 
 face, the proper practice is by demurrer to show in 
 what particulars the averments are defective and in- 
 sufficient, thus giving the plaintiff notice of what the 
 objections are, and opportunity to obviate them by 
 amendment, which are not afforded by a general mo- 
 tion to strike from the j&les." 
 
 When Issue may be Taken on the Answ^er. 
 
 Reasonnhle Time — Statutory Period. 
 
 § 360. If the plaintiff desires to contest the gar- 
 nishee's answer, he must take issue upon it within a 
 reasonable time after it is made; and what is a rea- 
 sonable time will depend largely upon the facts of each 
 case.'" When the time allowed the plaintiff to contest 
 
 S3 McDonald v. Moore, 65 Iowa, 171, 21 N. W. 504; Ruby v. Schee, 
 51 Iowa, 422, 1 N. W. 741; Bates v. Foi-syth, 04 Ga. 232; Corbin v. 
 Goddard, 94 Ind. 419. 
 
 3* Ruby V. Schee, 51 Iowa, 422, 1 N. W. 741; Dawson v. Maria, 15 
 Or. 556, 16 Pac. 413. 
 
 3 5 Lindsay v. Morris, 100 Ala. 546, 13 South. 619. 
 
 But held, that the proper practice in such case is to move to dis- 
 miss the proceedings, and not by demurrer. Tuttle v. Gordon, S Mo. 
 152. 
 
 Under a statute directing that the garnishee plead within a certain 
 time after summons served on him In scire facias, held, that a de- 
 murrer is improper. Welsh v. Blackwell, 14 N. J. Law, 344; Lomer- 
 son V. Hoffman, 24 N. J. Law, 674. 
 
 3 6 Smith V. Wellborn, 73 Ga. 131. 
 
 If the plaintiff does not take issue upon the answer, or move for 
 (452) 
 
Ch. 16] ISSUE BETWEEN PLAINTIFE AND GARNISHEE. § 360 
 
 ihe answer is fixed by statute, the garnishee cannot be 
 compelled to join in an issue tendered at a subsequent 
 time, unless he has expressly or by implication waived 
 the delay, or unless the court, before the period ex- 
 pires, grants the plaintiff further time within which 
 the contest may be instituted." But an issue taken 
 in season may be made up at a subsequent time, or, at 
 least, it is not error for the court to permit it to be 
 done; ^* and proceeding on the issue framed is a 
 waiver of the delay in taking it.^° Under a statute re- 
 quiring the plaintiff to take issue at the term when the 
 answer is filed, unless the court grant further time, the 
 supreme court of Mississippi afflr^ied the action of the 
 trial court in refusing an application for leave to 
 traverse the garnishee's answer at a subsequent term, 
 saying: "We feel constrained to enforce the plain re- 
 quirement of the statute as we find it written. * * • 
 It seems altogether right that the plaintiff should give 
 attention to his demand on a stranger to his litigation, 
 and, by timely action, put it in the garnishee's power 
 to be at once discharged from his compulsory, perhaps 
 needless, attendance upon a court in which he is not a 
 suitor. The letter of the law and its spirit, in this in- 
 stance, are in perfect harmony, and we can ingraft no 
 
 judgment upon it within a reasonable time, the garnishee is entitled 
 to be discharged on motion. Selz v. First Nat. Bank of Ft. Atkinson, 
 5o Wis. 225, 12 N. W. 433. 
 
 37 Brake v. Curd-Sinton Manuf'g Co., 102 Ala. 339, 14 South. 773; 
 Cross V. Spillman, 93 Ala. 170, 9 South. 362; Lockhart v. Johnson, 9 
 Ala. 223; Graves v. Cooper, 8 Ala. 812. 
 
 3 8 Lindsay v. Morris, 100 Ala. 546, 13 South. 619; Marston v. Carr, 
 16 Ala. 325. 
 
 39 Pedrick v. McCall, 80 Ga. 491, 5 S. E. 633; Birmingham Nat. 
 Bank v. Mayer (Ala.) 16 South. 520. 
 
 (453) 
 
§ 362 LAW OF GARNISHMENT. [Ch. 16 
 
 exception on it." *" We find a similar decision in Ore- 
 gon, in which the court express a doubt as to the power 
 of the court to enlarge the time.*^ 
 
 Taking Issue after Time Limited. 
 
 § 361. Somewhat opposed to these decisions, allow- 
 ing issue to be taken only within the time limited 
 therefor, except when the delay is waived or further 
 time is granted, we find decisions to the effect that is- 
 sue may be taken at a subsequent term by permission 
 of court, and this permission, being an exercise of dis- 
 cretion, cannot be reviewed by the supreme court.*^ A 
 certain time being allowed the plaintiff in which to 
 take issue upon the separate answers of several gar- 
 nishees, and he having within the prescribed time filed 
 a pleading joining all the garnishees, and thereby tak- 
 ing issue on all the answers, and one of the garnishees 
 having been dismissed from the issue thus taken be- 
 cause of such misjoinder, and the plaintiff having im- 
 mediately thereupon filed a pleading taking issue upon 
 the answer of this garnishee alone, it was held that the 
 court erred in striking this last pleading from the files 
 on the ground that it came too late.*^ 
 
 After Judgment or Motion for Judgment. 
 
 § 362. When the garnishee appeared March 16th, 
 at the term at which he was summoned, and filed his 
 answer denying indebtedness, and on March 26th, dur- 
 ing the same term, the court, after excusing attend- 
 ee Consumers' Ice Co. v. Cook Well Co., 71 Miss. 886, 16 South. 259. 
 41 Case V. Noyes, 16 Or. 539, 21 Pac. 46. 
 
 * 2 Vincent v. Wellington, 18 Wis. 159. Compare Banks v. Hunt, 70 
 Ga 741. 
 *3 CofEman v. Ford, 56 Iowa, 185, 9 N. W. 118. 
 (454) 
 
Ch. 16] ISSUE BETWKEN PLAINTIFF AND GARNISHEE. § 362 
 
 ance of all counsel in civil cases, took up the garnish- 
 ment out of its order, on motion of the garnishee, and, 
 ascertaining that no traverse had been filed, granted an 
 order discharging the garnishee, and on the same day 
 took a recess till April 30th, at which time plaintiif's 
 counsel first learned that the garnishee had been dis- 
 charged, it was held to be no abuse of discretion by 
 the court then to set aside the discharge, and allow the 
 plaintiff to traverse the garnishee's answer.** But, 
 after the plaintiff has moved for judgment against the 
 garnishee on the answer, and the court has overruled 
 Ms motion, it is then too late to take issue on the an- 
 swer.*° So, too, a plaintiff in justice court, having 
 failed to deny the answer of the garnishee within the 
 time provided by statute, is not entitled, as a matter of 
 right, to make such denial in circuit court on appeal; 
 and it is not error for the circuit court to refuse the 
 plaintiff leave to file a denial, or to strike out such a 
 denial after leave has been given to file it.*' After 
 a judgment against the garnishee upon an answer de- 
 nying liability was set aside by the supreme court, the 
 plaintiff asked to have the same remanded to the lower 
 court to enable him to take issue on the answer; but 
 
 <* McWilliams v. Standard Guano & Chemical Co., 92 Ga. 437, 17 S. 
 E. 669. 
 
 AVhen a case was continued over one term, and not set for trial at 
 the next, at which time the garnishee filed his answer, and was dis- 
 charged, of which discharge the plaintiff was not informed till the 
 next succeeding term, it was held not error to refuse, then, to set 
 aside the discharge, and allow the plaintiff to contest the answer, on 
 proof that the want of prosecution was due to the neglect of an 
 attorney, not in the case, whom, the plaintiff had requested to attend 
 to it. Dunham v. Murphy (Tex. Civ. App.) 28 S. W. 132. 
 
 <5 Mahoney v. McLean, 28 Minn. 63, 9 N. W. 76. 
 
 4 6 Blackstone v. St. Louis, I. M. & S. R. Co., 44 Mo. App. .555. 
 
 (455) 
 
§ 363 LA.W OF GARNISHMENT. [Ch. 16 
 
 the court lield that this should have been done in the 
 first instance, and denied the motion.*' 
 
 Nature and Scope of the Issue. 
 
 § 363. Ordinarily, the issue is whether the gar- 
 nishee is chargeable upon any ground upon which the- 
 plaintiff, in instituting the proceedings, attempted to 
 charge him, and is not confined to the matter contained 
 in the garnishee's answer.*^ The plaintiff may show 
 that the garnishee is chargeable by reason of facts de- 
 nied or not mentioned in the disclosure.*^ But an in- 
 dependent cause of action by the plaintiff against the 
 garnishee cannot be set up,'*" nor a liability different 
 in nature from any to which the garnishee was sum- 
 moned to answer.^^ Whether purely equitable issues- 
 can be tried in this proceeding is not agreed." 
 
 *i McCoy V. ■Williams, 6 111. 58i, 593, note at end of cas9. 
 
 48 Sears v. Thompson, 72 Iowa, 61, 33 N. W. 364. 
 
 The garnishee having made a general denial of liability and a specific- 
 disclosure, held, that the plaintiff may take issue on the general denial 
 merely, without filing interrogatories concerning the specific matter. 
 Bebb V. Preston, 3 Iowa, 325. 
 
 A garnishee having disclosed that he was indebted in a certain sum 
 unless the debt became discharged by facts set up, the plaintiff may 
 take issue on the answer without filing special interrogatories; and 
 the issue is, was such indebtedness actually due? Hobson v. Kelly, ST 
 Mich, 187, 49 N. W. 533. 
 
 The only proper Issue is one of indebtedness vel non, and the plain- 
 tifC cannot select a part of the answer upon which to take issue. My- 
 att V. Lockhart, 9 Ala. 91; Perea v. Colorado Nat. Bank (N. M.) 27 Pac, 
 322. 
 
 40 Davis V. Mendenhall, 19 Minn. 149; Pearey v. Cummings, 41 
 Mich. 376, 1 N. W. 946. 
 
 50 Sears v. Thompson, 72 Iowa, 61, 33 N. W. 364. 
 
 51 Botsford V. Simmons, 32 Mich. 352; Mitchell v. Shelton, 35 Conn.. 
 1; Frizzel v. Willard, 37 Ark. 478. See, also, ante, § 50. 
 
 52 See ante, § 153. 
 (456) 
 
Ch. 17] TRIAL OF THE ISSUE. § 364 
 
 CHAPTER XVII. 
 
 TRIAL OF THE ISSUE BETWEEN THE PLAINTIFF AND THE 
 GARNISHEE. 
 
 § 364. Time for Trial— Whether before Judgment in Main Action. 
 
 365. Garnishee's Right to Speedy Trial. 
 
 866. Either Party may Notice for Trial. 
 
 367. Manner of Trial— By Court, Same as in Other Actions. 
 
 368. Right to Trial to Jury. 
 
 369. What Plaintiff must Prove— Has Burden to Show Liability 
 
 of Garnishee, Its Nature and Amount. 
 
 370. — :^'eed not Prove What Appears of Record in Proceed- 
 
 ings or Main Action Unless Alleged. 
 
 371. Competency of Evidence and Witnesses- Evidence Confined 
 
 to Issue. 
 
 372. Evidence for Plaintiff. 
 
 373. Evidence for Garnishee. 
 
 374. The Defense — Defendant and Claimants cannot Take Part in. 
 
 375. Garnishee may Question Proceedings in Main Action, 
 
 and Protect Claimants. 
 
 376. Irregularities— Statute of Limitations^Failure of Con- 
 sideration — Equitable Defenses. 
 
 377. Agreements veithin Statute of Frauds. 
 
 378. May Prove Set-OfE or Recoupment as if Sued by De- 
 fendant. 
 
 379. Various Rules as to What Demands may be Set Off. 
 
 380. After-Acquired Claims— Burden of Proof— Intention to 
 
 Claim against Defendant. 
 
 381. Matters in Abatement of Action. 
 
 382. Only the Judgment can Terminate the Action. 
 
 Time for Trial. 
 
 Whether before Judgment in Main Action. 
 
 § 364. Usually no trial of the garnishee's liability 
 can be had till judgment has been recovered in the 
 
 (457) 
 
§ 364 LAW OF GARNISHMENT. [Ch. 17 
 
 iMncipal suit/ unless the principal defendant has 
 never been served with process, and jurisdiction to 
 render judgment in the main action therefore de- 
 pends upon the liability of the garnishee.^ What is 
 here said relates to the right of the plaintiff to force 
 the garnishment issue on for trial. Although the 
 garnishee may waive his right to time and notice/ 
 yet, if he objects, he cannot, after judgment in the 
 main action, be compelled to go to trial * upon a 
 shorter notice than is allowed him by law; but, on 
 
 1 Gen. St. Minn. 1894, § 5321; Conway v. Ionia Circuit Judge, 46 
 Mich. 28, 8 N. VP. 588; Strong v. Hollon, 39 Mich. 411; Farrington v. 
 Sexton, 43 Midi. 454, 5 N. W. 654; Streisguth v. Reigelman, 75 Wis. 
 212, 43 N. W. 1116. 
 
 2 Wilson V. Bank of Louisiana, 55 Ga. 98. 
 
 If jurisdiction depends on property of the defendant subject to gar- 
 nishment being in the hands of the garnisliee, the fact that such 
 property exists must be found before the suit in attacliment can 
 proceed to iinal judgment. Myers v. Smith, 29 Ohio St. 120. In 
 such cases, jurisdiction to render judgment against the defendant 
 depends upon a judgment against the garnisliee. Byers v. Balier 
 (Ala.) 16 South. 72. 
 
 In Michigan no trial can be had against the garnishee In this 
 or any other case till judgment against the defendant. Moore v. 
 Wayne Circuit Judge, 55 Mich. 84, 20 N. W. 801. 
 
 3 Crippen v. Fletcher, 56 Mich. 386, 23 N. W. 56. 
 
 i Crippen v. Fletcher, 56 Mich. 386, 23 N. W. 56; Everton v. 
 Parker, 3 Wash. 331, 28 Pac. 536. 
 
 PLAINTIFF MAY DEMAND TRIAL BEFORE JUDGMENT IN 
 MAIN ACTION: "When the jury finds that the answer is not true, 
 and declares in its verdict that he is indebted, or had effects in his 
 hands at the time he is garnished, and the plaintiff moves to en- 
 ter up judgment against the garnishee, the court can then inquire 
 whether the plaintiff has a judgment against the defendant or not. 
 Up to that time he is not Interested or concerned in the matter, be- 
 cause, if he is not indebted, or has no effects of the defendant in his 
 hands, it does not matter to him whether there is a judgment in 
 favor of the plaintiff against the defendant or not." Merchants* & 
 (458) 
 
Ch. 17] TRIAL OF THE ISSUE. § 365 
 
 the other hand, he cannot be compelled to stand by 
 till the main action is disposed of before having the 
 trial of his own liability. "He may dispute his lia- 
 bility, and want an early determination of that mat- 
 ter, which it is apprehended he may demand without 
 awaiting the issue between plaintiff and defendant; 
 he being a mere stakeholder, not interested in that 
 issue. Can he be kept in suspense and danger?" " 
 
 Garnishee's Right to Speedy Trial. 
 
 § 365. It is held that the statutes contemplate 
 speedy proceedings, that the plaintiff cannot tie up 
 the property in the hands of the garnishee indefinite- 
 ly; and, if he does not move in the case within the 
 time required by law, the garnishees may object to 
 any further proceedings against him, unless there had 
 been an order continuing the case,' or the garnishee 
 has waived the delay.^ Or may have the case dis- 
 missed for want of prosecution.' 
 
 Manufacturers' Nat. Bank v. Halman, 80 Ga. 624, 5 S. B. 795; Capi- 
 tal City Bank v. Wakefield, 83 Iowa, 46, 48 N. W. 1059. 
 
 5 Coda V. Thompson, 39 W. Va. 67, 19 S. E. 548. 
 
 ; Blake v. Hubbard, 45 Mich. 1, 7 N. W. 204. 
 
 Held, that the intervening of one or more terms between the serv- 
 ice of the garnishment process and the rendition of judgment against 
 the garnishee does not imply an abandonment of the proceedings. 
 Phillips V. Germon, 43 Iowa, 101. The fact that no jury was soim- 
 moned for a term of court excuses not trying- the case at that term, 
 and the pending of the cause for 15 months will not of itself war- 
 rant the dismissal of the proceedings if the garnishee does not raise 
 the question of laches. Webber v. Bolte, 51 Mich. 113, 16 N. W. 257. 
 
 A delay of 14 years in bringing scire facias against the garnishee 
 held excused. Cookson v. Turner, 2 Bin. (Pa.) 453. See, also, post, 
 § 382. 
 
 1 Applying for and receiving an attorney fee as cost of the con- 
 
 8 Dunham v. Murphy (Tex. Civ. App.) 28 S. W. 132. 
 
 (459) 
 
§ 367 LAW OF GARNISHMENT. [Ch. 17 
 
 Either Party May Notice for Trial. 
 
 § 366. Another view of the matter is that, while 
 the garnishee has the power and the undoubted right 
 to have a speedy disposition of the cause, he need not 
 wait the motion of the plaintiff, and, if neither party 
 sees fit to move the cause for trial, there is no hard- 
 ship in permitting it to stand over.' 
 
 Manner of Trial. 
 
 By Court, Same as in Other Actions. 
 
 § 367. The issue between the plaintiff and the gar- 
 nishee being formed and ready is brought on for 
 trial '■" and tried in the same manner as ordinary ac- 
 
 tinuance is a waiver. Kiely y. Bertrand, 67 Micb. 332, 34 N. W. 674. 
 
 NoticiBg a case for trial at a subsequent term, and in tbat term 
 consenting tbat tbe case be continued, is a waiver. Having waived 
 the statutory rigbts, tlie case must thereafter proceed as other is- 
 sues of fact, subject to notice by either party. Cluett v. Rosenthal, 
 100 Mich. 193, 58 N. W. 1009. 
 
 When tbe attorney for the garnishee moved that tbe case be dis- 
 missed for want of diligence in its prosecution, the plaintiff's coun- 
 sel objected tbat, if tbe garnishee had a right to make the motion, 
 he had forfeited it by consenting that "the case stand from day to 
 day, and not be taken up for trial before," etc., which statement 
 was not contradicted. Held, tbat the motion was properly over- 
 ruled. Meigs V. Weller, 90 Mich. 629, 51 N. W. 681. 
 
 Failure to continue the garnishee case by order of court does not 
 discbarge the garnishee. He is liable till discharged, and payment 
 meantime is at bis peril. Hughes v. Monty, 24 Iowa, 499. 
 
 9 Vincent v. Wellington, 18 Wis. 159; Coda v. Thompson, 39 W. 
 Va. 67, 19 S. E. 548. Compare Cluett v. Rosenthal, 100 Mich. 193, 58 
 N. W. 1009. 
 
 10 DOCKETING SEVERAL GARNISHMENTS: When several 
 persons are summoned as individual garnishees, the correct prac- 
 tice Is to docket separate suits against each, so tbat tbe separate 
 
 (460) 
 
Ch. 17] TRIAL OF THE ISSDK. § 368 
 
 tions,^^ unless the statute specially provides other- 
 wise/^ The garnishee is entitled to his day in court/* 
 and a judge of the court could no more try the gar- 
 nishee's liability in vacation, and render judgment 
 thereon against him, than he could in the same man- 
 ner try any other action/* 
 
 Right to Trial to Jury. 
 
 § 368. Whether either party is entitled to a jury 
 trial in the absence of a statute upon the subject spe- 
 cially mentioning garnishment trials depends ui>on 
 the nature of the matter to be tried. If the issue to 
 be tried is of such a nature as to be within the scope 
 of the constitutional provision securing the right to 
 trial by jury as at common law, a jury may be de- 
 manded of right, although not provided for by the 
 
 garnishments may be proceeded with independently; and the plain- 
 tiff is entitled to have this done upon proper showing on motion. 
 Farmers' Bank of Virginia v. Brooke, 40 Md. 249. On same sub- 
 ject, see, also, post, § 395. 
 
 n El wood V. Crowley, 04 Iowa, 68, 19 N. W. 857; Beck v. Cole, 
 16 Wis. 99; Graves v. Cooper, 8 Ala. 811. 
 
 The proceeding upon the trial has ceased to be a mere summary 
 proceeding. It is, then, a trial subject to trial rules. Dawson v. 
 Iron Range & H. B. Ry. Co., 97 Mich. 33, 45, 56 N. W. 108. 
 
 12 Field V. Shoop, 6 111. App. 445. 
 
 "If a statute gives to a court of record jurisdiction over a new 
 subject, without prescribing the mode of proceeding or of trial, it 
 is to be conducted and tried according to the course and forms of 
 the common law. But if a mode of, proceeding out of the course 
 of the common law is prescribed, it must be strictly followed." 
 Welsh V. Blackwell, 14 N. J. Law, 344, 347; Stewart v. Walters, 38 
 N. J. Law, 274. 
 
 13 Lindenthal v. Burke, 2 Idaho, 535, 21 Pac. 419. 
 
 1* Laughlin v. Peckham, 66 Iowa, 121, 23 N. W. 294. 
 
 (461) 
 
§ 369 LAW OF GARNISHMENT. fCh. 17 
 
 garnishment statutes; otherwise not.^^ If the gar- 
 nishee is entitled to a jury, he may waive it/* 
 
 What the PlaintifiF must Prove. 
 
 Has Burden to Show Liability of Garnishee, Its Nature and Amount. 
 
 § 369. There is no presumption that the garnishee 
 was liable. His liability must be made to appear by 
 his disclosure or otherwise." The burden rests upon 
 the plaintiff to prove by a preponderance of evidence 
 
 15 La Orosse Nat. Bank v. Wilson, 74 Wis. 391, 399, 43 N. W. 
 153; Delaney v. Hartwig (Wis.) 64 N. W. 1035; Weibler v. Ford 
 (Minn.) 63 N. W. 1075; Kelley v. Andrews (Iowa) 62 N. W. 8.i3; 
 Cooley, Const. Lim. (6tli Ed.) 504, note 2. 
 
 Tlie garnishee was held entitled to a jury trial in the following 
 cases: Gaboon v. Lavy, 5 Cal. 294; Boozer v. Fuller, 88 (>a. 293, 14 
 S. E. 615; Everton v. Parker, 3 Wash. St. 311, 28 Pac. 536; Perea 
 V. Colorado Nat. Bank of Texas (N. M.) 27 Pac. 322. 
 
 16 Henny Buggy Co. v. Patt, 73 Iowa, 485, 35 N. W. 5S7. 
 
 17 Union Pac. Ry. Co. t. (iibsou, 15 Colo. 299, 25 Pac. 300; Smith 
 V. Clarke, 9 Iowa, 241; Morse v. Marshall, 22 Iowa, 290; Church v. 
 Simpson, 25 Iowa, 408; Farwell v. Howard, 26 Iowa, 381; Letts, 
 Fletcher & Co. v. McMaster, 83 Iowa, 449, 49 N. W. 1035; Birt- 
 wliistle T. Woodward, 95 Mo. 113, 7 S. W. 465; Hamilton v. Hill, 86 
 Me. 137, 29 Atl. 956; Taylor v. Huey, 166 Pa. St. 518, 31 Atl. 199; 
 Wile V. Cohn, 63 Fed. 759; Edney v. Willis, 23 Neb. 56, 36 N. W. 
 300; Timm v. Stegman, 6 Wash. 13, 32 Pac. 1004; Voorhies v. Den- 
 ver Hardware Co., 4 Colo. App. 428, 36 Pac. 65; Fleming v. Bax- 
 ter (Colo. App.) 38 Pac. 57. 
 
 A person summoned as garnishee is to be charged or not, accord- 
 ing as, on a just view of all the facts, the weight of evidence shall 
 fairly preponderate; and if it is not affirmatively proved by the an- 
 swer of the garnishee, or by other evidence, that he is chargeable, 
 then he is to be discharged. Porter v. Stevens, 9 Cush. (Mass.) 530; 
 Kelley v. Weymouth, 68 Me. 107. 
 
 CONFESSION AND AVOIDANCE: As to the rule when the gar- 
 nishee answers by way of confession and avoidance, see ante, § 315. 
 (462) 
 
Ch. 17] TRIAL OP THE ISSUE. § 369 
 
 all the facts upon which he relies to charge the gar- 
 nishee/^ And if he fails in this the garnishee must be 
 
 18 Dawson v. Irou Range & H. B. Ry. Co., 97 Mich. 33, 56 N. W. 
 106; East Line & R. R. R. Co. v. Terry, 50 Tex. 129; Sclieuber v. 
 Simmons, 2 Tex. Civ. App. 672, 22 S. W. 72; Kergin v. .Dawson, 1 
 Oilman (111.) 86; Rippen v. Schoeu, 92 111. 229; Laschear v. White, 
 88 111. 43; Williams v. Young, 46 Iowa, 140; Padden v. Moore, 58 
 Iowa, 703, 12 N. W. 724; Reagan v. Pacific R. Co., 21 Mo. 30; Sevier 
 V. Throckmorton, 33 Ala. 212; Caldwell v. Coates, 78 Pa. St. 312; 
 Denver, T. & Ft. W. Ry. Co. v. Smeeton, 2 Colo. App. 126, 29 Pac. 
 815; Thomas v. Sturges, 32 Miss. 201; Williams v. Housel, 2 Iowa, 
 154; Wright v. Foord, 5 N. H. 178; Lomerson v. Hoffman, 24 N. J. 
 Law, 674, 25 N. J. Law, 625. 
 
 BURDEN OF PROOF— ILLUSTRATIONS: "It is a general rule, 
 and one applicable to this case, that wherever, in consequence of the 
 nature of the subject, it is a matter of absolute indifference whether 
 a given state of facts does or does not exist, the party who grounds 
 his claim or defense upon its existence must remove that indifference 
 in order to succeed; and meanwhile the opposite party may safely 
 remain passive, and insist upon a determination in his own favor 
 if that is not done." Hewitt v. Wagar Lumber Co., 38 Mich. 701. 
 
 The plaintiff must prove that the garnishee's creditor is the prin- 
 cipal defendant. Field v. Malone, 102 Ind. 251, 1 N. B. 507. If the 
 garnishee in his answer states that the property in his hands, or 
 the debt due from him, is exempt from garnishment, the plaintiff 
 must disprove it in order to recover. Todd v. McCravey, 77 Ala. 
 469; Crisp v. Ft. Wayne & B. Ry. Co., 98 Mich. 648, 651, 57 N. W. 
 1050. 
 
 When the statute allowed judgment by default to be entered 
 against the garnishee "as in ordinary cases," held, that no judg- 
 ment can be entered without proof, the same as if he were an 
 ordinary defendant. Flanegan v. Earnest, 1 Chand. (Wis.) 149; 
 Longwell v. Hartwell, 164 Pa. St. 533, 30 Atl. 495. See, also, post, 
 § 387. 
 
 When a case is submitted on the disclosure alone, the court can- 
 not make a finding of fact outside of it. Wilder v. Ferguson, 42 
 Minn. 112, 43 N. W. 794. See ante, § 314. Likewise if the gar- 
 nishee's testimony is undisputed, though his written answer is 
 
 (463) ~ 
 
§ 370 LAW OF GARNISHMENT. [Ch. 17 
 
 discharged/^ A statute providing that if the plain- 
 tiff fail to make out a case against all the defendants 
 he shall nevertheless recover against such as he shows 
 to be liable, applies to suits against the garnishees.^" 
 The plaintiff must also prove the amount of the gar- 
 nishee's liability," and should, when necessary, ask 
 for such special findings as will determine it." 
 
 Need not Prove What Appears of Record in Proceedings or Main 
 Action Unless Alleged. 
 
 § 370. But ordinarily no formal proof of the exist- 
 ence of the judgment or proceedings against the prin- 
 
 found untrue. Dieter v. Smith, 70 111. 168; Cairo & St. L. Ry. Co. 
 V. Killenberg, 82 III. 295. 
 
 If there is any evidence to support the finding, the court will not 
 disturb it. Spencer v. Moran, 80 Iowa, 374, 45 N. W. 902. 
 
 10 Sanders v. Miller, 60 Ga. 554; Gordin v. Moore, 62 Miss. 493; 
 Laschear v. White, 88 111. 43; Cairo & St. L. Ry. Co. v. Killen- 
 berg, 92 111. 142; Givens v. Taylor, 6 Tex. 315. 
 
 20 Hawley v. Atherton, 39 Conn. 309; First Nat. Bank of Cleburne 
 V. Graham (Teix. App.) 22 S. W. 1102. 
 
 21 Watson V. Montgomery (Tex. App.) 16 S. W. 546; Poor y. Col- 
 born, 57 Pa. St. 415; Bouraffon v. Thompson, 83 Pa. St. 460; Long- 
 well V. Hartwell, 164 Pa. St. 533, 30 Atl. 495; Keppel v. Moore, 66 
 Jlioh. 292, 33 N. W. 499; Meigs v. Weller, 90 Mich. 629, 51 N. W. 
 681; iiarks v. Reiuberg, 16 La. Ann. 348; Pere.a v. Colorado Nat. 
 Bank of Texas (N. M.) 27 I'ac. 322; First Nat. Bank v. Perry, 29 
 Iowa, 266; Brainard v. Simmons, 67 Iowa, 646, 25 N. W. 844. 
 
 But when it is shown that the garnishee's liability exceeds the 
 amount of the plaintifC's judgment against the principal defendant, 
 it is immaterial to inquire further, for that fixes the limit of the 
 plaintiil's recovery. Strong v. HoUon, 39 Mich. 411; Crane v. Stick- 
 les, 15 Vt. 252. Contra, Perea v. Colorado Nat. Bank of Texas, 
 above. 
 
 2 2 SPECIAL FINDINGS— GENERAL VERDICT: When it is 
 sought to charge the garnishee as holding property belonging to the 
 defendant, the plaintiff should submit at least two special questions 
 
 * (464) 
 
Ch. 17] TRIAL OF THE ISSUE. § 370 
 
 cipal defendant or the fact of garnishment is re- 
 quired in the trial of the issue against the garnisliee, 
 for tlie reason that the garnishment proceedings are 
 ancillary to the suit in which the judgment was ren- 
 dered. The fact of the pendency of that suit is al- 
 ready before the court," and it is at liberty to con- 
 sider the record without proof."* But when the af- 
 fidavit or writ of garnishment or any other jurisdic- 
 
 to the jury: "(1) What property do you find to have been In the 
 possession or under the control of the defendant at the time of the 
 service of the writ of garnishment upon him, for which, under the 
 evidence, and the law as given you by the court, he Is liable as 
 garnishee? (2) What do you find the value of such property to 
 te under the testimony, and the law as given you by the court?" 
 Bethel v. Linn, 63 Mich. 464, 472, 30 N. W. 84; Perea v. Colorado 
 Nat. Bank of Texas (N. M.) 27 Pac. 322. 
 
 For other special questions see Black v. Dawson, 82 Mich. 485, 40 
 N. W. 793; Dieter v. Smith, 70 111. IGS. 
 
 Special questions are submitted after the argument to the jury is 
 •closed. Zucker v. Karpeles, 88 Mich. 413, 50 N. W. 373. 
 
 But a general verdict may be demanded also in this as in other 
 cases. Shadbolt & Boyd Iron Co. v. Camp, 80 Iowa, 539, 45 N. W. 
 1062; Shahan v. Tallman, 39 Kan. 185, 17 Pac. 823. Compare De- 
 laney v. Hartwig (Wis.) 64 N. W. 1035. 
 
 When the garnishee is charged for specific property belonging to 
 the defendant, it is not sufiicient to show its value. The jury must 
 find the specific goods. Crawford v. Barry, 1 Bin. (Pa.) 481. 
 
 2 3 Strong v. Hollon, 39 Mich. 411; Kelly v. Gibbs, 84 Tex. 143, 19 
 S. W. 563. 
 
 Plaintiff need not prove return of execution in main action. Good- 
 ell V. Williams, 21 Conn. 419. 
 
 2 4 Parrington v. Sexton, 43 Mich. 454, 5 N. W. 654: Henny Buggy 
 Co. V. Patt, 73 Iowa, 485, 35 N. W. 587; Kenosha Stove Co. v. Shedd, 
 82 Iowa, 540, 48 N. W. 933; Kelly v. Gibbs, 84 Tex. 143, 19 S. W. 
 563; Farrar v. Bates, 55 Tex. 193; Merchants' & Manufacturers' 
 JSfat. Bank v. Haiman, 80 Ga. 624, 5 S. B. 795. 
 
 CONTRA: When a garnishee appealed to the circuit court from a 
 LAW GARNISH. — 30 (465) 
 
§ 370 LAW OP GARNISHMENT. [Ch. 17 
 
 tional document is missing from the records, a judg- 
 ment rendered without proof that such papers ever 
 existed, or any explanation of their absence, cannot 
 be sustained.^' The judgment against the principal 
 defendant is important only as fixing the limit of the 
 recovery against the garnishee, and for this purpose 
 it may be proved by the judgment entry merely with- 
 out producing the files; ^'' and the objection that no 
 such proof is made comes too late unless made at the 
 trial, where it can be supplied, and the objection ob- 
 viated." But when the plaintiff, in taking issue on 
 the answer, alleged the proceedings in detail, it was 
 held that he must prove them.^* 
 
 iudgment rendered against him by a justice of the peace upon a 
 garnishment on execution, held that a judgment against the gar- 
 nishee in the circuit court, without proof of an unsatisfied judgment 
 against the defendant, and valid execution on which to found the 
 garnishment, was void for want of jurisdiction. Miller v. Wilson, 
 86 Tenn. 495, 7 S. W. 638. 
 
 25 Blankenship & Blake Co. v. Moore (Tex. App.) 16 S. W. 780. 
 
 The papers are not admissible unless coming from the proper cus- 
 tody. Papers coming from the possession of the plaintiff's attor- 
 ney, and not marked "Filed" are inadmissible. Bryant v. Bank of 
 California (Cal.) 7 Pac. 128. 
 
 2 Strong V. Hollon, 39 Mich. 411. 
 
 The plaintifC's recovei-y against the garnishee may be for the 
 amount of the judgment in the principal suit with interest. Em- 
 pire Car Roofing Co. v. Macey, 115 111. 390, 3 N. E. 417. 
 
 If the judgment against the defendant, though rendered, is not 
 docketed, and the garnishee objects to the proceedings against him 
 on that ground, the court will proceed with the trial against the gar- 
 nishee, and order the judgment in the principal case entered nunc 
 pro tunc, and the garnishee cannot require proof of it. Capital City 
 Bank v. Wakefield, 83 Iowa, 46, 48 N. W. 1059. 
 
 2T Sanger v. Guenther, 73 Wis. 354, 41 N. W. 436. 
 
 2 8 McDonald v. Moore, 65 Iowa, 171, 21 N. W. 504. 
 (466) 
 
Ch. 17] TRIAL OP THE ISSUE. § 371 
 
 Competency of Evidence and Witnesses. 
 
 Evidence Confined to Issue. * 
 
 § 371. The same rules of evidence apply in this as 
 in ordinary trials. ^° The testimony must be confined 
 to the issue.'" The plaintiff cannot prove a liability 
 not within his pleadings/^ and the garnishee cannot 
 show any defense not set up in his answer or plea,^^ 
 unless the court, upon proper terms, allow an amend- 
 
 28 Kelley v. Weymouth, 68 Me. 107; McDonald v. Moore, 65 Iowa, 
 171, 21 N. W. 504. 
 
 When not rendered competent by statute, interested persons are as 
 incompetent as witnesses in this as in any other trial. Beach v. 
 Swift, 2 Conn. 209; Enos v. Tuttle, 3 Conn. 247. 
 
 30 Freese v. Co-operative Coal Co., 67 Iowa, 42, 24 N. W. 583. 
 The fact of the indebtedness of the defendant to the plaintiff is 
 
 not involved in this issue. Capital City Bank v. Wakefield, 83 Iowa, 
 46, 48 N. W. 1059; Jones v. Pope, 6 Ala. 154. 
 
 When the statute gives the garnishee no opportunity to set up any 
 defense he may have to the plaintiff's reply, he may prove it with- 
 out pleading. Jones v. Langhorne, 19 Colo. 206, 34 Pac. 997. 
 
 31 See ante, §358. 
 
 The plaintiff cannot controvert the statements of an answer upon 
 which he has not taken issue. Batchellor v. Richardson, 17 Or. 334, 
 21 Pac. 392. 
 
 32 First Baptist Church of Chicago v. Hyde, 40 111. 150; Whet- 
 croft v. Burford, 2 Cranch, C. 0. 96, Fed. Cas. No. 17,505; Weil v. 
 Posten, 77 Mo. 284. Compare Baker's Appeal (Pa. St.) 3 Atl. 766. 
 
 PLEADING SPECIAL DEFENSES: Former garnishment pend- 
 ing as a defense must be pleaded specially. See ante, § 191. 
 
 Set-off cannot be shown by the garnishee without notice. Fox y. 
 Reed, 3 Grant, Cas. (Pa.) 81; Reed v. Penrose, 2 Grant, Cas. (Pa.) 
 472, 36 Pa. St. 214. Contra, Howe v. Hyer (Fla.) 17 South. 925. 
 
 A TRANSFER by the defendant of the debt or property garnished, 
 made before the garnishment, and of which the garnishee had notice 
 in time to state it in his answer, or by amended answer before the 
 trial, cannot be given in evidence by him at the trial unless so spe- 
 
 (467) 
 
§ 372 LAW OF GARNISHMENT. [Ch. 17 
 
 ment of the pleadings.^ ^ And ordinarily the gar- 
 nishee will not be permitted to give evidence contra- 
 dicting th« statements of his answer/* 
 
 Evidence for Plaintiff. 
 
 § 372. The liability of the garnishee may be shown 
 by the disclosure made in the cause,^^ by his admis- 
 sions against interest made out of court/' by his tes- 
 
 cially set up. Davis Lumber Co. v. First Nat. Bank of Milwaukee, 
 84 Wis. 1, 54 N. W. 108; Baker v. Mix, 3 Ciancli, 0. C. I, Fed. Cas. 
 No. 775; Fowler v. Williamson, 52 Ala. 16. 
 
 Garnishee may give special matter of defense under statutory plea 
 of general issue with notice of special matter. Smyth v. Ripley, 33 
 Conn. 306. 
 
 33 Id. 
 
 3 4 Wingate v. Nutter, 17 N. H. 256; Woodbrldge v. Winthrop, 1 
 Root (Conn.) .557; Weil v. Posten, 77 Mo. 284. See ante, § 309. 
 
 It is in the discretion of the court to allow the garnishee to show 
 error in his answer. How. Ann. St. Mich. § 8071; Allen v. Hazen, 
 26 Mich. 142; Klauber v. Wright, 52 Wis. 303, 8 N. W. 893. 
 
 The garnishee is not estopped by his answer. Linder v. Murdy, 
 37 Kan. 152, 14 Pac. 447. 
 
 3 5 As to the disclosure in evidence, see ante, §§ 287-289. 
 
 The disclosure in the case made In justice court may be given in 
 evidence against the garnishee in the circuit court on appeal. New- 
 ell V. Blair, 7 Mich. 103, 107. Contra, Cairo & St. L. Ry. Co. v. Kil- 
 lenberg, 92 111. 142. 
 
 But the enti-y upon the docket made by the justice, and not signed 
 by the garnishee, cannot be put in evidence where it is not shown 
 to be the whole of the examination as taken down at the time, and 
 that no other minutes of the examination were taken or filed. Wat- 
 son V. Kane, 31 Midi. 01. 
 
 Nor can the justice testify from memory in the circuit court as to 
 what the garnishee disclosed betore him. Isabelle v. Iron Cliffs 
 Co., 57 Mich. 120, 23 N. W. 613. 
 
 And even the minutes taken by the justice are not such public rec- 
 ords as import absolute verity. Sutherland v. Burrill, 82 Mich. 13, 
 43 N. W. 1122; Taylor v. Kaln, 8 Baxt. (Tenn.) 35. 
 
 3 Ellis V. Goodnow, 40 Vt. 237; Stevens v. Guathmey, 9 Mo. 636; 
 (468) 
 
Ch. 17] TRIAL OF THE ISSUE. § 372 
 
 timony upon the stand/' by the principal defendant 
 examined as a witness in the case/' or by any other 
 
 Schwab V. Gingevick, 13 III. GOT; Des Moines Sav. Bank v. Colfax 
 Hotel Co., 88 Iowa, 4, 55 N. W. 67; Watson v. Jlontgomery (Tex. 
 App.) 16 S. W. 546. 
 
 REPRESENTATIONS ESTOPriNG GARNISHEE: Probably the 
 garnishee may estop himself from denying liability. Keppel v. 
 Moore, 66 Mich. 292, 33 N. W. 499; Starry v. Korab, 65 Iowa, 267, 
 21 N. W. 600; Speed v. Holmes (Ky.) 32 S. W. 404. 
 
 But it has been held that the garnishee is not estopped by reason 
 of declarations of liability made to the plaintiff, and in reliance upon 
 which the plaintiff commenced the pix)ceedings. "S^'order v. Baker, 
 54 Wis. 49, 11 N. W. 342; Phillipsburgh Bank v. Pulmer, 31 N. J. 
 Law, 52; Lewis v. Prenatt, 24 Ind. 98. Compare Blake Crusher 
 Co. V. Town of New Haven, 46 Conn. 473, 476; Excelsior Steam Pow- 
 er Co. V. Cosmopolitan Pub. Co., 80 Ilnn, 592, 30 N. Y. Supp. 557. 
 
 Held, that letters written by the garnishee, and tending to show 
 his liability, are admissible against him. Thompson v. Stewart, 3 
 Conn. 171. 
 
 Held, that statements made by the garnishee to the officer serving 
 the summons upon him that he was indebted to the defendant are 
 inadmissible against him. Maynards v. Cornwell, 3 Mich. 309. 
 
 Held, that an admission of liability by the garnishee, made to the 
 person who served the notice of trial of the garnishment issue at the 
 time the notice was served, and in response to a direct question, is 
 no admission, for the reason that the garnishee might properly treat 
 the question as an impertinence. Quinn v. Blanck, 55 Mich. 269, 21 
 N. W. 307. 
 
 ADMITTING DEBT BY PAYING IT: It has been held that the 
 payment by the garnishee to the defendant of a sum of money under 
 bond of indemnity against the garnishment is an admission on in- 
 Indebtedness sufficient to support a judgment. Humphrey v. O'Don- 
 nell, 165 Pa. St. 411, 30 Atl. 992. 
 
 3 7 The cashier and clerk who disclosed for the garnishee bank may 
 be examined on the trial by the plaintiff. Young v. First Nat. Bank 
 of Cairo, 51 111. 73. 
 
 IMPEACHMENT: The court may, in its discretion, permit the 
 
 as See following page. 
 
 (469) 
 
§ 372 LAW OF GARNISHMENT. [Ch. 17 
 
 competent witness or evidence; '^ and the plaintiff 
 may testify in Ms own favor/" 
 
 plaintiff to question the garnishee as to whether lie has not made 
 statements different from those just made when the plaintiff has 
 made him his witness. Trunkey v. Crosby, 33 Minn. 464, 23 N. W. 
 846. 
 
 As to taking garnishee's deposition, see Jones v. Roberts, 60 N. 
 H. 216. 
 
 = 8 Barnes v. Circuit Judge of Wayne Co., 81 Mich. 374, 45 N. W. 
 1016. 
 
 The plaintiff may have the testimony of the defendant taken under 
 deposition and given in evidence at the trial. Mygatt v. Burton, 74 
 A\is. 352, 43 N. W. 100. 
 
 The defendant is not a party to the garnishment suit so as to dis- 
 qualify him at common law as a witness for the plaintiff. Wallace 
 V. Blanchard, 3 N. H. 395. 
 
 A writing found among the papers of the defendant after his de- 
 cease, tending to prove his ownership of the money garnished, held 
 admissible for that purpose. Beach v. Swift, 2 Conn. 269. 
 
 The defendant may be examined as to conversations between him 
 and the garnishee, tending to show that the transfer to the latter 
 was for the purpose of defrauding creditors of the former. Risser v. 
 Rathbum, 71 Iowa, 113, 32 N. W. 19S; Ruby v. Schee, 51 Iowa, 422, 
 1 N. W. 741. 
 
 But declarations of the defendant, made out of court, are not 
 admissible against the garnishee when it is not shown that they are 
 admissions against the interest of the principal defendant. Enos v. 
 Tuttle, 3 Conn. 247. 
 
 Upon an issue seeking to establish fraud and collusion between 
 the defendant and garnishee the declarations of either are evidence 
 for the plaintiff. Palmer v. Gilraore, 148 Pa. St. 48, 23 Atl. 1041; 
 Sommer v. Gilmore, 160 Pa. St. 129, 28 Atl. 654. 
 
 3 Thompson v. Stewart, 3 Conn. 171; Barnes v. Circuit Judge of 
 Wayne Co., 81 Mich. 374, 45 N. W. 1016; Meigs v. Weller, 90 Mich. 
 029, 51 N. W. 681; Arenz v. Reihle, 1 Scam. (111.) 342. 
 
 Declarations not against interest by strangers to the suit are in- 
 admissible. Baltimore & O. Ry. Co. v. Gallahue, 12 Grat. (Va.) 655, 
 65 Am. Dec. 254. 
 
 *o Zimmer v. Davis, 35 Mich. 39. 
 (470) 
 
Ch. 17] TRIAL OP THE ISSUE. § 374 
 
 Evidence for Garnishee. 
 
 § 373. In the same manner the garnishee may dis- 
 prove his liability. He may testify in his own behalf,*^ 
 introduce his formal answer in evidence,*" or show by 
 the testimony of the principal defendant,*^ or any 
 other competent evidence, that he is not chargeable. 
 
 The Defense. 
 
 Defendant and Claimants cannot Take Part in. 
 
 § 374. Neither the principal defendant nor any 
 claimant of the property is a party to this issue, and 
 
 •*! Vaughn v. Sherwood, 1 Root (Conn.) 507; Thompson v^. Stewart, 
 3 Conn. 171, 182. 
 
 The garnishee may testify as to the amount of property belonging 
 to the defendant which he has received. Spencer v. Moran, 80 Iowa, 
 374, 45 N. W. 902. 
 
 The garnishee's testimony is entitled to full credit as evidence. 
 Henry v. Bew, 43 La. Ann. 476, 9 South. 101. 
 
 42 See ante, §§ 287, 289. 
 
 When the proceedings against several garnishees are conducted 
 jointly, they will be regarded as joint defendants; and the answer 
 of one is evidence for the other. Pollock v. Jones, 90 Ala. 492, 11 
 South. 529. 
 
 43 Tyler v. Coolbaugh, 7 Iowa, 474; Enos v. Tuttle, 3 Conn. 247. 
 Admissions against interest made by the defendant are admissible 
 
 in favor of the garnishee. Dewit v. Baldwin, 1 Root (Conn.) 138. 
 Contra, Thomas v. Price, 30 Md. 483. 
 
 When the defendant is interested in having the garnishee dis- 
 charged, his statements are not evidence as admissions against inter- 
 est. Beach v. Swift, 2 Conn. 209; Enos v. Tuttle, 3 Conn. 247; 
 Bostwick V. Beach, 18 Ala. 80. 
 
 Statements made by the defendant after the garnishee was served 
 are not competent evidence against the plaintiff and in favor of the 
 garnishee as declarations against interest. Willis v. Holmes (Or.) 42 
 Pac. 989; Warren v. Moore, 52 Ga. 562. 
 
 (471) 
 
§ 374 LAW OP GARNISHMENT. [Ch. 17 
 
 neither has any right to take part in the defense upon 
 it; and to permit either to do so is error.** Neither 
 the defendant nor other several garnishees are en- 
 titled to notice of the proceedings had.*^ So far as 
 the conduct of the case is concerned, it is entirely in- 
 dependent of the main action, and substantially an- 
 other suit; and therefore a motion made in the gar- 
 nishment suit to make one of the garnishees a defend- 
 ant in the main action should be denied."*' The prin- 
 cipal defendant is entitled to appear in the garnish- 
 ment suit, and contest the plaintiff's right to recovery 
 against the garnishee on the ground that the gar- 
 nished property is exempt,*^ or to show that the judg- 
 ment in the main action has been satisfied; *° and by 
 statute in some states he may defend generally.*" 
 
 44 Keppel V. Moore, 66 Mich. 292, 33 N. W. 499; Wales v. City of 
 Muscatine, 4 Iowa, 302; Thompson v. Silvers, 59 Iowa, 670, 13 N. W. 
 854; Greene v. Tripp, 11 R. I. 424; Jarvls v. Mitchell, 99 Mass. 530; 
 Missouri Pac. Ey. Co. v. Whipsker, 77 Tex. 14, 13 S. W. 639; Foster 
 V. Haynes, 88 Ga. 240, 14 S. E. 570; Cross v. SpUlman, 93 Ala. 170, 
 9 South. 362; Woodward v. Woodward, 9 N. J. Law, 115, 17 Am. 
 Dec. 402. Contra, P. Cox Manuf'g Co. v. August, 51 Kan. 59, 32 
 Pac. 636. 
 
 If the plaintiff does not object at the time, the irregularity is 
 waived, and cannot be urged afterwards. Murphree v. City of Mo- 
 bile (Ala.) 18 South. 740. 
 
 4 6 Dittenhoefer v. Coeur d'Alene Clothing Co., 4 Wash. 519, 30 
 Pac. 660. 
 
 46 Reeves v. Harrington, 85 Iowa, 741, 52 N. W. 517. 
 
 47 See ante, § 85. 
 
 4 8 Wales V. City of Muscatine, 4 Iowa, 302; Compare Everdell v. 
 Sheboygan & Fond du Lac Ry. Co., 41 Wis. 395. 
 
 4 German American Bank v. Butler-Mueller Co., 87 Wis. 4G7, 58 
 N. W. 746. 
 (472) 
 
Ch. 17] TRIAL OF THE ISSUE. § 375 
 
 Garnishee may Question Proceedings in Main Action and Protect 
 Claimant. 
 
 § 375. On the other hand, the garnishee must in- 
 sist upon not being charged, unless the claims of all 
 persons to the property would be thereby foreclosed, 
 so that the judgment against him will discharge his 
 obligation, and protect him from future liability/" 
 He must see that he is not charged under void pro- 
 ceedings." If a fact, he may and should show that 
 the judgment against the defendant has been paid 
 in whole or in part, or otherwise discharged," or has 
 become dormant or otherwise unenforceable, either of 
 which would be a good defense.''^ If the judgment 
 against the defendant is binding upon him, it will 
 support the garnishment and protect the garnishee.^* 
 That is the extent of the garnishee's interest, and he 
 cannot question the correctness of the judgment, or 
 inquire as to mere errors and irregularities in such 
 proceedings for which the defendant might have them 
 set aside on appeal or otherwise. °° But if the pro- 
 
 50 Sucli defenses cannot be proved at tlie trial unless made by the 
 pleadings. See ante, § 371. 
 
 51 See ante, § 213. 
 
 62 Chanute v. Martin. 25 111. 49. 
 
 53 Weaver v. Pickard, 7 Utah, 296, 26 Pac. 581. 
 
 54 Id. See ante, § 226. 
 
 6 6 See ante, § 22G; Summers v. Oberndorf, 73 Md. 312, 20 Atl. 1068; 
 Bartlett v. Wilbur, 53 Md. 485; Cummings v. Pearey, 44 Mich. 39, 6 
 N. W. 98. 
 
 If the court has jurisdiction, the proceedings in the main action, 
 until set aside, are, in the garnishment suit, conclusive against all 
 parties,— defendant, claimant, and garnishee. Iselin v. Simon 
 (Minn.) 64 N. W. 143; ChafCee v. Rutland Ry. Co., 55 Vt. 110, 141. 
 
 If the garnishee can ever take advantage of fraud and collusion 
 between the plaintiff and defendant in procuring the judgment in 
 
 (473) 
 
§ 376 LAW OF GARNISHMENT. [Ch. 17 
 
 ceedings against the principal defendant are abso- 
 lutely void, the garnishee may at any stage of the ac- 
 tion insist on being discharged on that ground.^" 
 
 Irregularities — Statute of Limitations — Failure of Consideration — 
 Equitable Defenses. 
 
 § 376. The garnishee may take advantage of any 
 irregularity in the proceedings against himself un- 
 less previously waived," and he must, for his own pro- 
 tection, take advantage of jurisdictional defects.^* 
 In his defense on the merits he stands in exactly the 
 same position as if the suit were being prosecuted 
 against him by the principal defendant himself.^' If 
 he fails to interpose a defense in the proper time and 
 manner, and seeks to avail himself of it afterwards, 
 
 the main action, he can do so only by bill in equity. Coalfields Co. 
 V. Peck, 98 111. 139, 145. 
 
 What is res judicata by the judgment In the main action the gar- 
 nishee cannot question. Rumery v. McCulloch, 54 Wis. 565, 12 N. 
 W. 65. 
 
 56 See ante, § 225; Iron Cliffs Co. v. Lahais, 52 Mich. 394, 18 N. W. 
 121. 
 
 DUTY TO EXAMINE PRINCIPAL CASE: The garnishee is un- 
 der no obligation to examine the proceedings in the principal suit 
 before pleading. He has a right to presume that they were regular, 
 and is entitled to make the objection as to irregularity when the 
 proof is offered. That the proceedings were void is wholly the fault 
 of the plaintiff. It is his duty to see that he has a valid judgment 
 against the defendant, which would protect the garnishee in any 
 suit afterwards brought by the defendant against him for the same 
 money. Segar v. Muskegon Shingle & Lumber Co., 81 Mich. 344, 45 
 N. W. 982. 
 
 57 See ante, § 286. 
 
 68 Ante, §§ 213, 238, 271. 
 59 See Ante, §§ 44-48. 
 
 He cannot set up his own fraud as a defense. See ante, § 76. 
 (474) 
 
■Ch. 17] TRIAL OP THE ISSUE. § 377 
 
 Jie appeals to the discretion of the court.*"* He may 
 set up the statute of limitations as a defense to lia- 
 bility/^ or show that the consideration for his obliga- 
 tion had failed/^ or he may set up any equitable de- 
 fense he may have,"" or show that the property for 
 which the plaintiff seeks to charge him was taken 
 from his hands under an execution or attachment in 
 favor of the plaintiff." 
 
 Agreements loithin Statute of Frauds. 
 
 § 377. When the garnishee, before the service of 
 the garnishment summons upon him, has, by promise 
 within the statute of frauds, obligated himself to pay 
 to a third person what was due the defendant, he may 
 set up such obligation to defeat the plaintiff's recov- 
 ery, if the statute merely makes contracts within it 
 
 60 Milliken v. Mannheimpr, 49 Minn. 521, 52 N. W. 139. 
 
 «i Benton v. Lindell, 10 Mo. 557; Hinkle v. Currin, 2 Humph. 
 (Tenn.) 137; Gee v. Gumming, 2 Hayw. (N. C.) 398; Gee v. War- 
 wicli. Id. 354; Hazen v. Emerson, 9 Piclj. (Mass.) 144; Grossman v. 
 €rossman, 21 Pick. (Mass.) 21, 24; James v. Fellowes, 20 La. Ann. 
 116; Chapman v. Gale, 32 N. H. 141; Jones v. Langhorne, 19 Colo. 
 20Q, 34 Pac. 997. 
 
 Action upon the garnishee's answer is barred in Kansas in three 
 years. Becker v. Hulme, 53 Kan. 574, 36 Pac. 986. 
 
 62 Ball V. Citizens' Nat. Bank, 39 Ind. 364; Moser v. Maberry, 7 
 Watts (Pa.) 12; Mo wry v. Davenport, 6 Lea (Tenn.) 80; Russell v. 
 Hlnton, 1 Murph. (N. C.) 468; Sheldon v. Simonds, Wright (Ohio) 
 724; Mathis v. Clark, 2 Mill, Const. (S. C.) 456; 12 Am. Dec. 688. 
 
 63 Hitchcock V. Galveston Wharf Co., 50 Fed. 263. 
 
 64 Bradford v. Beyer, 17 Ohio St. 389; Toledo Sav. Bank v. John- 
 ston (Iowa) 62 N. W. 748. 
 
 The garnishee cannot be charged for property taken from him 
 under an execution against the principal defendant in favor of the 
 garnishment plaintiff, issued in the same action in which the gar- 
 nishee is summoned, though the execution turn out to be premature 
 and void. Goddard v. Bridgman, 25 Vt. 351. 
 
 (475) 
 
§ 378 LAW OF QAHNISHMENT. [Ch. l7 
 
 unenforceable, for in that case the contract is not 
 void, and the statute is a privilege which the obligator 
 may interpose or not, at his option; "^ but, if the stat- 
 ute makes contracts within it absolutely void, the gar- 
 nishee cannot have recourse to any such promise to 
 prevent being charged. °° 
 
 May Prove Set-Off or Recoupment as if Sued by Defendant. 
 
 § '378. What counterclaims can be maintained by 
 way of set-off or recoupment in an. ordinary action of 
 course depends entirely upon the provisions of the 
 statute in each state, allowing defenses of that nature, 
 and these differ widely. Any set-off which the gar- 
 nishee could claim under the statute in an ordinary 
 action against him by the principal defendant he may 
 interpose with equal success to prevent being char- 
 ged as garnishee.*^ The same is true of claims by 
 
 6 5 Cahill V. Bigelow, 18 Pick. (Mass.) 369; Swett v. Ordway, 23 
 Pick. (Mass.) 266; McCoy v. Williams, 6 111. 584; Compare Bailey v. 
 Union Pac. Ry. Co., 62 Iowa, 354, 17 N. W. 567. 
 
 08 Hazeltine v. Page, 4 Vt. 49; Strong v. Mitchell, 19 Vt. 644; Baer 
 V. English, 84 Ga. 403, 11 S. E. 453. 
 
 67 Parsons v. Root, 41 Conn. 161, 166; Farmers' & Merchants' 
 Bank v. Franklin Bank, 31 Md. 404; Gage v. Chesebro, 49 Wis. 486, 
 492, 5 N. W. 881; National Bank of America v. Indiana Banking Co., 
 114 111. 483, 2 N. E. 401; Cox v. Russell, 44 Iowa, 556, 562; Dyer v. 
 McHenry, 13 Iowa, 527; Boston Type & Stereotype Foundry Co. v. 
 Mortimer, 7 Pick. (Mass.) 166; Keyes v. Milwaukee & St. P. Ry. Co., 
 25 Wis. 691, 695; Strong v. Bass, 35 Pa. St. 333; Asliby v. Watson, 
 9 Mo. 236; Picquet v. Swan, 4 Mason, 443, Fed. Cas. No. 11,133; Ro- 
 senberg V. First Nat. Bank of Texarkana (Tex. Civ. App.) 27 S. Vf. 
 897; Nesbitt v. Campbell, 5 Neb. 429; Howe v. Hyer (Fla.) 17 South. 
 925; Sampson v. Hyde, 16 N. H. 492; Brown v. Warren, 43 N. H. 
 430; How. Ann. St. Mich. § 8097. 
 
 An executor sumjnoned as garnishee of a legatee may set ofC an 
 (476) 
 
Ch. 17] TRIAL OF THE ISSUE. § 379 
 
 way of recoupment."' On the other hand, the gar- 
 nishee cannot maintain any counterclaim which would 
 not be available to him if the action were being prose- 
 cuted by the principal defendant. "' 
 
 Various Rules as to What Demands may be Set Off. 
 
 § 379. In some states a very liberal rule obtains in 
 favor of the garnishee in adjusting mutual claims be- 
 
 Indebtedness of the legatee to his testator's estate. Nlckerson v. 
 Chase, 122 Mass. 296; Strong v. Bass, 35 Pa. St. 333. 
 
 CLAIMS OF TRUSTEES UNDER GENERAL ASSIGNMENT: 
 When a trustee for certain creditors under a deed of assignment for 
 their benefit is summoned as garnishee of the assignor, and the as- 
 signment Is held to be void, the trustee may nevertheless retain of 
 the property received thereunder a sufficient amount to balance his 
 own claims against the assignor. Beach v. VUes, 2 Pet. 675; An- 
 drews V. Ludlow, 5 Pick. (Blass.) 28; Ripley v. Severance, 6 Pick. 
 (Mass.) 474; Firebaugh v. Stone, 36 Mo. Ill, 114; Stedman v. Vlck- 
 ery, 42 Me. 132; Bishop v. Catlin, 28 Vt. 71. 
 
 PARTY TO FRAUD: But a party to a conveyance, entered into 
 by him with the Intention of defrauding the defendant's creditors, 
 has no such right. Cummings v. Fearey, 44 Mich. 39, 6 N. W. 98; 
 Hawes v. Mooney, 39 Conn. 37. 
 
 6 8 Powell ,v. Sammons, 31 Ala. 552; Rankin v. Slmonds, 27 111. 352; 
 Healey v. Butler, 66 Wis. 9, 16, 27 N. W. 822; Doyle v. Gray, 110 
 Mass. 206; Hitchcock v. Lancto, 127 Mass. 514; Thompson v. Alli- 
 son, 28 La. Ann. 733; Brown v. Brown, 55 N. H. 74; Cota v. Mlshow, 
 62 Me. 124; Johnson v. Geneva Pub. Co., 122 Mo. 102, 26 S. W. 676. 
 
 60 Soule V. Kennebec Maine Ice Co., 85 Me. 166, 27 Atl. 92; Smith 
 V. Boston, C. & M. Ry. Co., 33 N. H. 337; Archer v. People's Sav. 
 Bank, 88 Ala. 24&, 7 South. 53; Mllllken v. Mannheimer, 49 Minn. 
 521, 52 N. W. 139. 
 
 SET-OFF AGAINST PLAINTIFF: He cannot set off claims he 
 may have against the plaintiff In garnishment. Steen v. Norton, 
 45 Wis. 413. 
 
 AN UNAUTHORIZED PAYMENT to a third person by the gar- 
 nishee is not binding on the defendant, and therefore no defense to 
 the plaintiff's action, and the fact that after the garnishment the 
 
 (477) 
 
§ 379 LAW OP GARNISHMENT. ' [Ch. 17 
 
 tween him and the defendant, and he is allowed to 
 set off any demand contracted before the service of 
 the garnishment summons, and becoming due before 
 his final answer,'" although only part of the debtors 
 
 defendant ratified the payment is immaterial, as the jus disponendi 
 was taken away from him by the garnishment. Sturtevant v. Kob- 
 inson, 18 Pick. (Mass.) 175. 
 
 A garnishee claimed that his debt to the defendant had been paid 
 by applying it on a debt from the defendant to the garnishee. The 
 application, being unauthorized, was of no effect, and, a set-off not 
 being claimed, held, that the garnishee was properly charged. Bir- 
 mingham Nat. Bank v. Mayer (Ala.) 16 South. 520. 
 
 LIENS ON PROPERTY: A garnishee sought to be charged on ac- 
 count of property in his possession belonging to the defendant has 
 no greater right against the plaintiff to charge it with a lien for his 
 claim against the defendant than he would have if the defendant 
 were prosecuting the suit. Allen v. Hall, 5 Mete. (Mass.) 263; Brew- 
 er V. Pitkin, 11 Pick. (Mass.) 298; Allen v. Megguire, 15 Mass. 490; 
 Bailey v. Ross, 20 N. H. 302. 
 
 A garnishee with whom the defendant left a horse to board, being 
 entitled to a lien on the animal for its keep, is entitled to have his 
 claim first satisfied out of the property. Williamson v. Gayle, 7 Grat. 
 (Va.) 152. Compare Bough v. Kirkpa trick, 54 Pa. St. 84; Ronau v. 
 Dawes, 17 Mo. App. 306. 
 
 7 Lennan v. Waited-, 149 Mass. 14, 20 N. E. 196; Boston Type & 
 Stereotype Foundry Co. v. Mortimer, 7 Pick. (Mass.) 166; Eddy v.. 
 O'Hara, 132 Mass. 50, 61; Lynde v. Watson, 52 Vt. 648; Strong v. 
 Mitchell, 19 Vt. 644; Schuler v. Israel, 120 V. S. 506, 7 Sup. Ct. 648; 
 North Chicago Rolling-Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 
 596, 14 Sup. Ct. 710; Broadman v. Gushing, 12 N. H. lOo; Boston & 
 M. Ry. Co. V. Oliver, 32 N. H. 172; Farmers' & Merchants' Bank v. 
 Franklin Bank, 31 Md. 404. 
 
 The set-off may include costs incurred after service of the garnish- 
 ment summons in procuring the Judgment set off. Smith v. Stearns, 
 19 Pick. 20. 
 
 EQUITABLE SET-OFFS: Only the balance after deducting all 
 
 just and equitable allowances is the amount for which the garnishee 
 
 should be charged. Allen v. Hall, 5 Mete. (Mass.) 263, 266; Green 
 
 V. Nelson, 12 Mete. (.Mass.) 567; Nutter v. Pramingham & L. Ry. Co.,. 
 
 (478) 
 
Ch. 17] TRIAL OF THE ISSUE. § 379 
 
 on one side are creditors on the other. ''^ But the 
 more prevalent rnle is that no demand can be set off 
 
 132 Mass. 427; Wheeler v. Emerson, 45 N. H. 526; Farmers' & Mer- 
 chants' Bank v. Franklin Bank, 31 Md. 404. 
 
 "He is to be allowed all his demands against the principal, of 
 which he could avail in any form of action, or any mode of pro- 
 ceedings between himself and his principal; whether by way of set- 
 off on the trial, as provided by the statutes, or by setting off the 
 judgments under an order of court, or by setting off the executions 
 in the hands of the sheriff, as is also provided by statute. If this 
 were not so, the trustee would be Injured by having his claim thus 
 drawn in, to be settled incidentally in a suit between strangers. In 
 this adjustment of their mutual claims we, of course, except on both 
 sides all claims for unliquidated damages for mere torts." Hatha- 
 way V. Russell, IC Mass. 478, 476; approved in Smith v. Steams, 19 
 Pick. 20, 22; Eddy v. O'Hara, 132 Mass. 56, 61. 
 
 The supreme court of the United States in a recent decision held 
 that a garnishee, who at the time he was summoned as garnishee 
 had a claim against the defendant for breach of contract (and who 
 upon the trial of garnishment issue offered to prove the damages 
 suffered by reason of such breach of contract, which evidence the 
 court rejected), might maintain a bill in equity to restrain collection 
 of the judgment rendered against him, and to assess the amount of 
 his claim against the defendant, and have the same set off against 
 the judgment rendered in favor of the plaintiff in garnishment, it 
 appearing that the defendant was insolvent, and a nonresident of 
 the state. In delivering the opinion of the court, Jackson, J., uses 
 the following language: "Cross demands and counterclaims, wheth- 
 er arising out of the same or wholly disconnected transactions, and 
 whether liquidated or unliquidated, may be enforced, by way of set- 
 off, whenever the circumstances are such as to warrant the inter- 
 ference of equity to prevent wrong and injustice. * * * The ad- 
 justment of demands by counterclaim or set-off, rather than by inde- 
 
 71 Schuler v. Israel, 120 U. S. 506, 7 Sup. Ct. 648; Hathaway v. 
 Russell, 16 Mass. 473; Brown v. Warren, 43 N. H. 430. 
 
 Held, that a garnishee may set off against his liability at all 
 events his share of a demand against the defendants owned by such 
 garnishee and another, and with the consent of the other may set 
 off the whole amount. Nutter v. Framingham & L. Ry. Co., 132 
 Mass. 427; Manufacturers' Bank v. Osgood, 12 Me. 117. 
 
 (479) 
 
§ 379 LAW OF GARNISHMENT. [Ch. 17 
 
 unless arising on contract, express or implied,'^ held 
 by the garnishee in the same right in which he is 
 sought to be charged," due at the time the gaxnish- 
 
 , pendent suit, is favored and encouraged by the law, to avoid circu- 
 ity of action and injustice. * * * The proposition here laid down 
 is in harmony with the generally recognized principle that the rights 
 of the garnisher do not rise above or extend beyond those of his 
 debtor; that the garnishee shall not, by operation of the proceedings 
 against him, be placed in any worse condition than he would have 
 been in had the principal debtor's claim been enforced against him 
 directly; that the liability, legal and equitable, of the garnishee to 
 the principal debtor, is a measure of his liability to the attaching 
 creditor, who takes the shoes of the principal debtor, and can assert 
 only the right of the latter." North Chicago Rolling-Jlill Co. v. St. 
 Louis Ore & Steel Co., 152 U. S. 596, 14 Sup. Ct. 710, 715, 716. 
 
 7 2 .Tohnston v. Howard, 41 Vt. 122; Thayer v. Partridge, 47 Vt. 
 423; Hibbard v. Clark, 56 N. H. 155, 22 Am. Rep. 432; Keyes v. 
 Milwaukee & St. P. Ry. Co., 25 Wis. 691. Compare City of Camden 
 V. Allen, 26 N. J. Law, 398; Peirce v. City of Boston, 3 Mete. (Mass.) 
 520. 
 
 UNLIQUIDATED DAMAGES for the breach of another contract 
 cannot be set oft". Gomila v. Milliken, 41 La. Ann. 116, 5 South. 548; 
 Irwin V. Dean, 93 Tenn. 346, 27 S. W. 066. 
 
 T3 DEBT AND COUNTERCLAIMS IN DIFFERENT RIGHTS: 
 A garnishee summoned as e.iecutor cannot set off a claim which he, 
 as an individual, has against the defendant. Lorenz v. King, 38 Pa. 
 St. 93. 
 
 A garnishee summoned on his own debt cannot set off a claim 
 against the defendant which he has as administrator of another per- 
 son. Thomas v. Hopper, 5 Ala. 442; Woodward v. Tupper, 58 N. H. 
 577. 
 
 A garnishee indebted to the defendant individually cannot set off 
 a debt due from the defendant to him and another jointly. Gray v. 
 Badgett, 5 Ark. 16; Phelps v. Reeder, 39 111. 172. 
 
 Joint garnishees cannot set off their individual claims against their 
 joint liability to defendant. Wells v. Mace, 17 Vt. 503; Blanchard 
 v. Cole, 8 La. 160. 
 
 A garnishee indebted to the defendants jointly cannot set off his 
 claim against one of them. Norcross v. Benton, 38 Pa. St. 217. 
 
 Claims against the defendants and others jointly cannot be set off. 
 National Bank of Commerce of Chicago v. Titsworth, 73 111. 591. 
 (480) 
 
'€'h. 17] TRIAL OF THE ISSUE. § 380 
 
 •ment summons was served/* and a legal, as distin- 
 guished from an equitable, claim.^" 
 
 jLfier-Acquired Claims — Burden of Proof — Intention to Claim 
 against Defendant. 
 
 § 380. Claims acquired after the garnishment sum- 
 mons was served of course cannot be set off ; '" and 
 
 T4 Edwards v. Delaplaine, 2 Har. (Del.) 322; Parsons v. Root, 41 
 ■Conn. 161; Ingalls v. Dennett, 6 Me. 79; Self v. Kirkland, 24 Ala. 
 275; National Bank of America v. Indiana Banking Co., 114 111. 483, 
 2 N. B. 401; Pennell v. Grubb, 13 Pa. St. 552; Tradesmen's Bank v. 
 •Cresson, 10 Pa. Co. Ct. R. 57. 
 
 GARNISHEE LIABLE AS SURETY: Tlie garnishee, having be- 
 come surety for the defendant, cannot interpose a set-o£f on account 
 of such suretyship when his liability thereon had not become abso- 
 lute at the time the garnishment was served, although it becomes so 
 and is paid by the garnishee before he answers to the gai-nishment. 
 Yongue v. Linton, 6 Rich. Law (S. C.) 275; Martin v. Solomons, 10 
 Rich. Law (S. C.) 533; Roig v. Tim, 103 Pa. St. 115; Taylor v. Gard- 
 ner, 2 Wash. 0. C. 488, Fed. Cas. No. 13.791. Contra, Rowell v. Fel- 
 ker, 54 Vt. 526, 531; Boston Type & Stereotype Foundry Co. v. Mor- 
 -timer, 7 Pick. 166. A garnishee cannot set off demands which he 
 has become responsible for as surety, when he has not absolutely 
 assumed the payment of tlie debt. Noyes v. Hickok, 27 Vt. 36. 
 Held, that judgment against the garnishee on account of his sure- 
 tyship, rendered before the service of the garnishment summons, 
 could not be set off, although paid by him afterwards. Field v. 
 Watkins, 5 Ark. 672; Watkins v. Field, 6 Ark. 391. But a surety 
 cannot be deprived of his indemnity by garnishment, although his 
 principal has as yet made no default. Ripley v. Severance, 6 Pick. 
 (Mass.) 474; St. Louis v. Regenfuss, 28 Wis. 144; Cox v. Russell, 
 44 Iowa, 556; Dryden v. Adams, 29 Iowa, 195. 
 
 TsWeller v. Waller, 18 Vt. 55; Loftin v. Shakelford, 17 Ala. 455; 
 «elf v. Kirkland, 24 Ala. 275. But see Dyer v. McHenry, 13 Iowa, 
 .527. 
 
 7 6. Farmers' Bank v. Gettinger, 4 W. Va. 305; Seaman v. Bank, Id. 
 "339; Dyer v. McHenry, 13 Iowa, 527; Grain v. Gould, 46 111. 293; 
 Wheeler v. Emerson, 45 N. H. 526; Farmers' & Merchants' Bank v. 
 Franklin Bank, 31 Md. 404. 
 
 LAW GARNISH. — 31 (481) 
 
§ 381 LAW OF GARNISHMENT. [Ch. 17 
 
 when it becomes a question whether the set-off was 
 acquired before or after that time, the garnishee must 
 sliow that it was acquired before, or it will not avail 
 him." Proof that the garnishee did not intend to 
 enforce the set-off against the defendant is immaterial 
 unless it shows a waiver of the right. '° 
 
 Matters in Abatement of Action. 
 
 § 381. Innumerable causes may of their own force 
 or by statute entitle the garnishee to be discharged, 
 among which may be mentioned payment of the plain- 
 tiff's claim by the garnishee under stipulation of all 
 parties; ^* payment by the defendant; ^° giving bail 
 to the plaintiff, pursuant to statute, to satisfy the 
 judgment he may recover; " the death of the prin- 
 cipal defendant before judgment against him,*^ but 
 not afterwards; ^^ the death of the garnishee before 
 answering the garnishment summons,** but not after- 
 wards; '" the dissolution of the corporation gar- 
 
 7T Fennell v. Grubb, 13 Pa. St. 552. 
 7 8 Howe V. Hyer (Fla.) 17 South. 925. 
 
 7 9 Platen v. Byck, 50 Ga. 245; Borden v. Noble, 26 Kan. 599; Dan- 
 iel V. Daniels, 02 Jliss. 352. 
 
 so McPadden v. O'Donnell, 18 Cal. 160. 
 
 81 See ante, §§.318-324. 
 
 82 Martin v. Abbot, 1 Me. 333; Famesworth v. Page, 17 N. H. 334; 
 Seals V. Halloway, 77 Ala. 344; Wilmarth v. Ricbmond, 11 Cush. 
 (Mass.) 4(>3; Farmers' & Mechanics' Bank v. Little, 8 Watts & S. 
 (Pa.) 207. Contra, by statute, Davis v. Sharpleigb, 19 111. 380; Dow 
 V. Blake. 148 111. 46, 35 N. E. 761. 
 
 83 Miller v. Williams, 30 Vt. 386; Fitch v. Ross, 4 Serg. & R. (Pa.) 
 557; Patterson v. Buckminster, 14 Mass. 144; Reynolds v. Howell 
 (Del. Err. & App.) 31 Atl. 875; Allard v. De Brot, 15 La. 253. 
 
 84 Tate V. Morehead, 65 N. C. 681; White v. Ledyard, 48 Mich. 
 204, 12 N. W. 216; Guptill v. Ayer, 149 Mass. 49, 20 N. E. 449. 
 
 8 5 Patterson y. Buckminster, 14 Mass. 144; Patterson v. Patten, 
 
 (482) 
 
Ch. 17] THIAL OF THE ISSUE. § 381 
 
 nishee; *" delay of the plaintiff in prosecuting the 
 suit; " his attaching the property in the garnishee's 
 
 15 Mass. 473; Hall v. Harvey, 3 N. H. 61; Cbapman v. Gale, 32 N. 
 H. 141; Rollins v. Robinson, 35 N. H. 381; Pai-ker v. Parker, 2 Hill, 
 Eq. (S. C.) 35; Wooten v. Harris, 5 Har. (Del.) 254; Harris v. 
 Hutchesou, 65 Miss. 9, 3 South. 34. 
 
 But held, that Judgment de hoiiis testatoris against an executor as 
 garnishee binds neither the testator's estate nor the executor per- 
 sonally. BIckle Y. Chrisman, 76 ^'a. 678. 
 
 When two persons are garnished as partners, and both answer, and 
 thereafter one of them dies pendente lite, the proceedings may be 
 prosecuted to judgment against the other, as surviving partner. 
 Gaines v. Beirne, 3 Ala. 114. 
 
 86 Walters v. Western & A. R. Co., 69 Fed. 679. 
 
 In this case the garnishee answered, admitting liability for $80, 
 and the plaintiff took issue on the answer, and on the trial the ver- 
 dict was in favor of the garnishee, and was .set aside, and a new 
 trial ordered. Before the new trial was had, the garnishee corpora- 
 tion was dissolved by expiration of its charter, and the plaintiff in 
 garnishment intervened by petition in an equitable proceeding then 
 instituted to wind up the affairs of the corporation, and sought to 
 establish and have allowed him out of the assets of the company 
 whatever liability in favor of the defendant in the original action he 
 could prove to have existed. The court said the garnishment fell 
 by the dissolution of the corporation garnishee, that whatever rights 
 were acquired by the garnishment depended upon maintaining it and 
 concluding it before the dissolution of the corporation, and before 
 the assets went into a court of equity for distribution among share- 
 holders and creditors; but the court nevertheless allowed and or- 
 dered to be paid to the petitioner the ?80 for which the garnishee had 
 admitted liability in its answer. 
 
 87 See ante, § 365, and post, § 382, note. 
 
 Plaintiff's failure to take garnishee's deposition at appointed time 
 held to entitle the latter to be discharged. Demeritt v. Estes, 56 N. 
 H. 313; Ogden v. Mills, 3 Cal. 253. Garnishee held entitled to pre- 
 sume from the plaintiff's conduct that he had abandoned the pro- 
 ceedings, thus excusing the garnishee's default. Cohn v. Tillman, 66 
 Tex. 98, 18 S. W. Ill; Platen v. Byck, 50 Ga. 245. 
 
 When the garnishee makes oath that he was released by the plain- 
 
 (483) 
 
§ 382 LAW OF GARNISHMENT. [Ch. 17 
 
 hands by actual seizure; ^' the dissolutio::^ of the at- 
 tachment under which the garnishee was summoned; *" 
 the failure of the plaintiff to recover in the principal 
 suit; "^ a general assignment by the defendant for 
 the benefit of his creditors.^^ 
 
 Only the Judgment can Terminate the Action. 
 
 § 382. These and a multitude of other matters 
 have been held sufficient for discharging the gar- 
 nishee, but none of them discharge him ipso facto, 
 although such would seem to be the inference from 
 some of the decisions cited in the last preceding sec- 
 tion."^ Once properly instituted, the case remains 
 open in court till the judgment is pronounced, regard- 
 less of all events affecting the rights of either party; 
 and whoever presumes upon the effect of any act or 
 
 tiff, be should be discharged without delay, unless his statement la 
 controverted. Ogden v. Mills, 3 Cal. 253. 
 
 8 8 Clapp V. Rogers, 38 N. H. 435. 
 
 8 9 Mitchell V. Watson, 9 Fla. 100. 
 
 90 See ante, § 224; Suydam v. Huggeford, 23 Pick. (Mass.) 465; 
 Washburn v. New York & V. Min. Co., 41 Vt. 50; Bethel v. Judge of 
 .Superior Court, 57 Mich. 379, 24 N. W. 112. 
 
 "In all cases where judgment is rendered in favor of the plaintiff 
 in the principal suit, a garnishee is not discharged or entitled to 
 judgment of discontinuance by a change of parties to the record, 
 where the claim was one that was garnishable at the time of service 
 of process." Bethel v. Judge of Superior Court, 57 Mich. 379, 24 N. 
 W. 112. 
 
 »i Fairbanks v. Whitney, 36 Minn. 305, 30 N. W. 812; Thomas v. 
 Brown, 67 Md. 512, 10 Atl. 713. 
 
 An assignment does not have this effect except by force of statute. 
 See ante, § 45. 
 
 Appointment of a receiver for defendant corporation held not to 
 entitle the garnishee to be discharged. Graham v. O'Neil, 24 Wis. 
 34; Graham v. Chappell, 24 Wis. 38. 
 
 82 Graves v. Cooper, 8 Ala. 811; Bostwick v. Beach, 18 Ala. 80. 
 (484) 
 
Ch. 17] TRIAL OF THE ISSUE. § 382 
 
 omission or what the judgment of the court will be 
 does so at his peril."^ 
 
 03 Ashley v. Dunn, 4 Ark. 516; Chase v. Foster, 9 Iowa. 429; Bost- 
 wick V. Beach, 18 Ala. 80; Graves v. Cooper, 8 Ala. 811. 
 
 ILLUSTRATIONS— MATTERS NOT CAUSING ABATEMENT: 
 Failure to continue the cause held not to entitle the garnishee to be 
 discharged, though he had paid the defendant in reliance upon it. 
 Hughes V. Monty, 24 Iowa, 499; Langford v. Ottumwa W. P. Co., 
 53 Iowa, 415, 5 N. W. 574. Failure of the plaintiff for six years to 
 proceed upon the answer of the garnishee held not to discharge the 
 garnishee, but to have great weight with the court in relieving him 
 from hard proceeding. Slatter v. Tiernan, G La. Ann. 567. Failure 
 to prosecute scire facias against a garnishee for fourteen years held 
 not to entitle him to be discharged. Weber v. Carter, 1 Phila. (Pa.) 
 221; Cookson v. Turner, 2 Bin. (Pa.) 453; Gibbons v. Cherry, 53 Md. 
 144; Noble v. Merrill, 48 Me. 140. 
 
 Failure to file interrogatories within the time required by law held 
 not to entitle the garnishee to be discharged. Ashley v. Dunn, 4r 
 Ark. 516. Judgment for defendant in the main action from which 
 the plaintiff appeals does not entitle the garnishee to be discharged. 
 See post, § 407. If the garnishee pays to the plaintiff before judgment 
 is recovered against the defendant he does so at his peril; he should 
 not pay till the proceedings are complete. Laidlaw v. Jlorrow, 44 
 Mich. 547, 7 N. W. 191. See, also, ante, § 213. Waiting for two 
 years after service before citing the garnishees to appear and an- 
 swer held equivalent to an abandonment of the proceedings. Wood- 
 ing V. Puget Sound Nat. Bank, 11 Wash. 527, 40 Pac. 223. 
 
 (485) 
 
§ 383 LAW OF GAENISHMENT. [Ch. 18 
 
 CHAPTER XVIII. 
 
 JUDGMENT. 
 
 § 383. Time and Notice of Application for Judgment— Judgment may 
 
 be Had at Any Time after Answer. 
 
 384. Notice of Application for Judgment. 
 
 38.'3. Judgment cannot be Rendered before Judgment in Main 
 
 Action. 
 3S<'>. Judgment by Default — Entering and Setting Aside. 
 
 387. Nature and Effect of. 
 
 388. Scire Facias and Proof of Regularity on. 
 
 389. .Judgment on tbe Pleadings. 
 
 390. Setting Aside Judgments. 
 
 391. Nature and Amount of Judgment— Some Statutes Allow no 
 
 Pinal Judgment against Garnishee. 
 
 392. . Limited in Amount by Liability of Defendant and Gar- 
 
 nishee. 
 
 393. ■ Judgment for Property in Garnishee's Possession and 
 
 Debts not Payable in Money. 
 
 394. For Unmatured Debts— Following Affidavit. 
 
 395. Judgment Record— Form and Substance — Entitling— Com- 
 
 bining. 
 
 396. Recitals and Averments— Time of Recording. 
 
 Time and Notice of Application for Judgment. 
 
 Judgment may be Had at Any Time after Answer. 
 
 § 383. Probably the garnishee may, upon proper 
 application, obtain a judgment discharging him at 
 any time after he is summoned, if good cause for it is 
 shown; ^ but he will not be discharged before making 
 answer upon any ground not going to the validity of 
 the proceedings against him, unless on the ground of 
 
 1 See "Affidavit," "Summons," "Service," etc., ante; Dunham v. 
 Murphy (Tex. Civ. App.) 28 S. W. 132. See ante, § 333. 
 (48G) 
 
Ch. IS] JUDGMENT. § 383 
 
 personal privilege,^ and, if discharged, the judgment 
 will be set aside upon appeal/ The garnishee, upon 
 making answer, may move to be discharged, and thus 
 obtain the determination of the court upon his liabil- 
 ity; * but he will not be discharged after making an- 
 swer showing prima facie liability to the defendant, 
 except upon a regular trial, unless his right thereto 
 fully appears ; ° nor in any case until the plaintiff has 
 had opportunity to contest or take further proceed- 
 
 2 See ante, § 14. 
 
 8 Graham v. O'Neil, 24 Wis. 34. 
 
 But, if all the facts which could be shown by answer are admitted, 
 no reason appears why the motion may not be treated the same as 
 if answer had been made showing them. Lord v. Meachom, 32 
 Minn. 66, 19 N. W. 340. 
 
 * Chase v. Foster, 9 Iowa, 429; Goulding v. Hair, 133 Mass. 78. 
 
 "The garnishee is entitled to know within a reasonable time wheth- 
 er the plaintiff intends to claim that he is liable upon his answer 
 beyond the liability admitted therein, or, if none be admitted, that 
 upon the facts stated he Is liable for some amount; and consequently, 
 if the plaintiff does not move for judgment upon the answer, as he 
 may, under the provision of law above quoted, and does not give 
 him notice that he claims nothing of him except the amount admit- 
 ted to be due, or, if nothing be admitted, that he claims nothing, and 
 consents to a dismissal of the proceedings, he has the right to move 
 the court to dismiss the proceedings against him as 'a matter of 
 right." Selz v. First Nat. Bank of Ft. Atkinson, 55 Wis. 225, 12 
 N. W. 433. 
 
 Garnishees havi«g been summoned in November to answer at the 
 following January term, at which time the cause was continued by 
 consent without answer, held, that on filing their answer denying 
 liability two days after the opening of the following August term 
 the garnishees were properly discharged on motion without notice 
 to the plaintiflf because of his failure to prosecute, and a motion for 
 a new trial, filed by the plaintiff September 9th,— seven days after he 
 learned that the garnishee had been discharged,— was properly de- 
 nied. Dunham v. Murphy (Tex. Civ. App.) 28 S. W. 132. 
 
 6 Graham v. Chappell, 24 Wis. 38; Hanaford v. Hawkins (R. I.) 28 
 
 (487) 
 
§ 384 LAW OP GARNISHMENT. [Ch. 18- 
 
 ings upon the answer; " nor after issue is formed up- 
 on the answer, except on trial, unless the plaintiff has 
 lost his right to a trial; ^ but the plaintiff must exer- 
 cise proper diligence in pursuing his remedy.' 
 
 Notice of Apjjlication for Judgment. 
 
 § 384. In garnishments upon judgments, when is- 
 sue has been formed upon the answer of the garnishee, 
 the cause stands in very much the same condition as 
 an ordinary action after issue joined. If either party 
 desires the matter terminated, he will notice it for 
 trial, the same as he would any action.' There are de- 
 cisions declaring that in all cases the garnishee, after 
 answering, is bound to take notice of whatever is done 
 in the case; ^" but certainly, when a garnishee, in re- 
 
 Atl. 605; National Bank of Galena v. Chase, 71 Iowa, 120, 32 N. W. 
 202. 
 
 6 McWlUiams v. Standard Guano & Chemical Co., 92 Ga. 437, 17 
 S. E. 669; Leslie v. Godfrey, 55 Minn. 231, 56 N. W. 818; 'Hanaford 
 V. Hawkins (R. I.) 28 Atl. 605; Hess v. Shorb, 7 Pa. St. 231; Myers 
 V. Smith, 29 Ohio St. 120; Pennsylvania Ry. Co. v. Peoples, 31 OhlO' 
 St. 537; State Nat. Bank v. Boatner, 39 La. Ann. 843, 2 South. 589. 
 See, also, ante, §§ 360-362. 
 
 1 Waco State Bank v. Stephenson Manuf'g Co., 4 Tex. Civ. App. 
 137, 23 S. W. 234. 
 
 8 Goulding v. Hair, 133 Mass. 78. See, also, ante, §§ 365, 382, note.- 
 
 3 Vincent v. Wellington, 18 Wis. 159; Coda v. Thompson, 39 W. 
 Va. 67, 19 S. E. 548; Cluett v. Rosenthal, 100 JVKch. 193, 58 N. W.- 
 1009. 
 
 10 Chase v. Poster, 9 Iowa, 429; Mandeville v. Askew, 78 Ga. 18. 
 
 Stone, C. J.: "After the written answer of the garnishees ha(i' 
 been filed, the court, on motion of the plaintiff, made an order 
 * * * requiring garnishees to 'appear in open court, and make- 
 oral answer.' * * * Having failed to appear and answer orally 
 as required by the order of the court, a judgment nisi was rendered 
 against them, * * * au^ ^ scire facias was issued, requiring them, 
 to appear at the next term, and show why such judgment nisi should. 
 (488) 
 
Ch. 18] JUDGMENT. § 384 
 
 sponse to the garnishment summons, appears and an- 
 swers, confessing liability, which answer the plaintiff 
 accepts as true by not taking issue upon it, the case 
 stands confessed, there is no issue to be tried, and the 
 plaintiff may move the court for judgment upon the 
 answer without giving the garnishee any notice of the 
 motion," unless required by the statute," and then it 
 may be waived.^ ^ The same rule holds when the gar- 
 nishee confesses liability by not responding to the gar- 
 nishment summons/* The garnishee should give the 
 plaintiff notice of a motion to be discharged, for, if 
 
 not be made final, * * * and, failing to show cause, the condi- 
 tional judgment against them was made absolute. * * * During 
 the same term, but at a later day, the garnishees appeared by them- 
 selves and counsel, and moved the court to set aside the Judgment 
 final. * * * It is certainly the law that after the garnishees 
 were summoned, and filed a written answer through counsel, both 
 they and their counsel are presumed to have been present in court 
 ever afterwards, until the cause was finally disposed of in that 
 court. DufCee v. Buchanan, 8 Ala. 27: Harrington v. Meadors, 41 
 Ala. 274; Speed v. Cocke, 57 Ala. 209, 222. We are forced by this 
 necessary rule to Indulge the conclusive presumption that they were 
 present In court when the order was made requiring them, as gar- 
 nishees, to appear in court, and answer orally. Security Loan Ass'n 
 V. Weems, 69 Ala. 584. So the conclusion is irresistible that they 
 were guilty of laches up to this stage." Talladega Mercantile Co. v. 
 McDonald, 97 Ala. 508, 12 South. 34. 
 
 11 Mead v. Doe, 18 Wis. 31; Leigh v. Smith, 5 Ala. 583; Talladega 
 Mercantile Co. v. McDonald, 97 Ala. 508, 12 South. 34; Chase v. Fos- 
 ter, 9 Iowa, 429. 
 
 When the defendant appeals from the judgment against the gar- 
 nishee, the latter is constructively before the appellate court, and is 
 bound by any order it may make. Daniels v. Clark,. 38 Iowa, 556. 
 
 12 Iron Cliffs Co. v. Lahais, 52 Mich. 394, 18 N. W. 121. 
 
 13 Bigalow V. Barre, 30 Mich. 1. 
 
 1* Sturges V. Kendall, 2 La. Ann. 565; Henry v. Bryce, 11 La. Ann. 
 691. 
 
 (489) 
 
§ 385 LAW OF GARNISHMENT. [Ch. 18 
 
 discharged without the plaintiff's knowledge, the 
 court will set aside the order discharging him upon 
 the motion of the plaintiff within any reasonable time 
 thereafter, on showing that he just learned of such 
 discharge/^ 
 
 Judgment cannot he Rendered before Judgment in Main Action. 
 
 § 385. No judgment, except for defaults, can be 
 rendered against the garnishee till judgment against 
 the defendant has been recovered in the main action." 
 Therefore, in the absence of statutory regulation, both 
 causes will usually be set for the same term of court, 
 
 1 6 Mc Williams v. Standard Guano & Chemical Co., 92 Ga. 437, 17 
 S. E. 669; Mortland v. Little, 137 Mass. 339. 
 
 16 Laidlaw v. Morrow, 44 Mich. 547, 550, 7 N. W. 191; Streisguth 
 V. Reigelman, 75 Wis. 499, 43 N. W. 1117; Sun Mut. Ins. Co. v. See- 
 ligson, 59 Tex. 3; Railroad Co. v. Todd, 11 Heisk. (Tenn.) 549; Gaines 
 V. Beirne, 3 Ala. 114; Leigh v. Smith, 5 Ala. 583; Lowry v. Clem- 
 ents, 9 Ala. 422; Bostwick v. Beach, 18 Ala. 80; Case v. Moore, 21 
 Ala. 758; Battell v. Lowery, 46 Iowa, 49; Merchants' & Manufactnr- 
 €is' Nat. Bank v. Haiman, 80 Ga. 624, 5 S. E. 795; Smith v. Montoya, 
 3 N. M. 39, 1 Pac. 175; Brackou v. Ballentiue, 10 N. J. Law, 484; 
 McPhee v. Gomer (Colo. App.) 41 Pac. 836; Roberts v. Barry, 42 
 Miss. 260; Metcalfe v. Steele, Id. 511; Kellogg v. Freeman, 50 Miss. 
 127; Erwin v. Heath, Id. 795; Withers v. Puller, 30 Grat. (Va.) 547; 
 I-Iousemans v. Heilbron, 23 Ga. 186; Arnold v. GuUatt, 68 Ga. 810; 
 Bryan v. Dean, 63 Ga. 317; Caldwell v. Townsend, 5 Mart. (N. S.; 
 La.) 307; Proseus v. Mason, 12 La. 16; Rose v. Whaley, 14 La. Ann. 
 374; Collins v. Friend, 21 La. Ann. 7; Coda v. Thompson, 39 W. ^'a. 
 67, 19 S. E. 548; Washburn v. New York & V. Min. Co., 41 A^t. 50 
 
 DEFENDANT CANNOT OBJECT: The entry of judgment 
 against the garnishee before judgment against the defendant cannot 
 be complained of by the latter. Carper v. Richards, 13 Ohio St. 
 219. But see Barton v. Smith, 7 Iowa. 85. 
 
 Held, that the entry of personal judgment against the defendant 
 in an attachment suit before entry of judgment against the garnishee 
 amounts to a dismissal of the garnishment. Emery v. Royal, 117 
 Ind. 299, 20 N. E. 150. 
 (490) 
 
Ch. 18] JUDGMENT. § 386 
 
 and the garnishment will be brought on as soon as 
 the other is disposed of, but the failure of the plaintiff 
 to proceed to judgment against the garnishee at the 
 same term at which he recovered against the defend- 
 ant will not prevent his doing so afterwards." 
 
 Judgment by Default. 
 
 Entering and Setting Aside. 
 
 § 386. If either party defaults at any stage of the 
 proceedings, judgment may be entered against him 
 therefor,^ ^ and a negligent garnishee is no more en- 
 
 17 Gibbons v. Cherry, 53 Md. 144; Sturges v. Kendall, 2 La. Ann. 
 565; Robinson v. Starr, 3 Stew. (Ala.) 90; Leigh v. Smith, 5 Ala. 
 583. See, also, ante, §§ 364-3Gfi. Compare Langford v. Ottumwa W. 
 P. Co., 53 Iowa, 415, 5 N. W. 574. 
 
 18 Parmenter v. Chllds, 12 Iowa, 22; Lehman v. Hudmon, 85 Ala. 
 135, 4 South. 741; Freeman v. ililler, 51 Tex. 443, 53 Tex. 372. 
 See ante, § 296, as to default for not answering. 
 
 DEFAULT OP PLAINTIFF: Garnishment proceedings in justice 
 covirt are as effectually ended by the failure of the plalntlfC to appear 
 on the return of the summons to the garnishee to show cause why 
 judgment should not be entered against him as they would be by the 
 failure of the plaintiff to appear on the return of the first summons. 
 The subsequent appearance of both plaintiff and garnishee and entry 
 of judgment against the ga nishee without objection cannot reinstate 
 the proceedings so as to protect the garnishee. Johnson v. Dexter, 
 38 Jlleh. 695. 
 
 "Failure to enter a writ on the return day is a discontinuance of 
 the action, but, as the court has the power to permit the action to 
 be entered late, if application is made within a certain time, unless 
 that time has expired, it cannot be known that the action may not 
 ultimately be entered in court." Varian v. New England Jlut. Ace. 
 Ass'n, 156 Mass. 1, 30 N. E. 368. Held, that a garnishee acting in 
 good faith may safely pay the defendant when the writ is not re- 
 turned in season, and before he receives notice of intention to enter 
 it late. Id. 
 
 (491) 
 
§ 386 LAW OF GARNISHMENT. [Ch. 18 
 
 titled to protection than any other negligent party/' 
 A party in default is prima facie negligent, and can 
 obtain no relief, unless by rebutting tJie presumption 
 of negligence he can induce the court to set aside the 
 judgment, and grant him leave to set up and prose- 
 cute his defense.^" He must also show that he has a 
 
 18 Lehman v. Hudmon, 85 Ala. 135, 4 South. 741; Houston v. Wol- 
 cott, 7 Iowa, 173; Fifleld v. Woocl, 9 Iowa, 250; Burlington & M. R. 
 Ry. Co. V. Hall, 37 Iowa, 620; Parmenter v. Childs, 12 Iowa, 22; 
 Dolby V. Tingley, 9 Neb. 412, 2 N. W. 866; Willet v. Price, 32 Ga. 
 113; Freidenrich v. Moore, 24 Md. 295; Anderson v. Graff, 41 Md. 
 601; Lawrence v. Smith, 45 N. H. 533: Burke v. Hance, 76 Tex. 76, 
 13 S. W. 103. 
 
 But there are differences in the nature of the proceedings which 
 are entitled to be considered. Evans v. Mohn, 55 Iowa, 302, 7 N. 
 W. 593. 
 
 20 Carhart v. Ross, 15 Ga. 180; Romans v. Coombe, 2 Cranch, C. 
 C. 681, Fed. Cas. No. 6,0.j3; Platen v. Byck, 50 Ga. 245. 
 
 EXCUSING DEFAULT: A judgment by default against an In- 
 sane garnishee should be set aside, and the garnishee allowed to 
 plead, when the fact is shown. Bond v. Neuschwander, 86 Wis. 391, 
 57 N. W. 54. 
 
 Held, that a default will not be set aside after the term unless a 
 strong case is shown. Anderson v. Graff, 41 Md. 602. 
 
 EQUITABLE RELIEF: It is not a case in which a court of equity 
 will interfere to grant relief, though he show that the judgment is 
 inequitable. To entitle himself to equitable relief the garnishee 
 must not only show that injustice has been done him by the judg- 
 ment, but that it was obtained without any fault or neglect on his 
 part. Drake, Attachm. § 658e, citing Hair v. Lowe, 19 Ala. 224; 
 Peters v. League, 13 Md. 58; "VYindwart v. Allen, Id. 196; Atlantic 
 F. & M. Ins. Co. V. Wilson, 5 R. I. 479; Rhode Island Exch. Bank 
 V. Hawkins, 6 R. I. 198; Danaher v. Prentiss, 22 Wis. 311; Free- 
 man V. Miller, 51 Tex. 443, 53 Tex. 372; Oregon R. & N. Co. v. 
 Gates, 10 Or. 514. See, also. Day v. Welles, 31 Conn. 344: Houston v. 
 Wolcott, 7 Iowa, 173; Burlington & M. R. Ry. Co. v. Hall, 37 Iowa, 
 620; Melton v. Lewis, 74 Tex. 411, 12 S. W. 93; Tlllls v. Prestwood 
 (Ala.) 18 South. 134. 
 (492) 
 
Ch. 18] JUDGMENT. § 387 
 
 meritorious defense.^^ It rests in the sound discre- 
 tion of the court to set aside the judgment upon appli- 
 cation and cause shown or refuse to do so, and, wheth- 
 er set aside or not, the action of the court will not be 
 reviewed upon appeal unless its discretion has been 
 abused.^^ The defaulted party should move to have 
 the default set aside, and for a new trial. ^' 
 
 Nature and Effect of. 
 
 § 387. Under some statutes the default of the gar- 
 nishee only renders him liable for contempt of court, 
 and he is brought in by attachment of his person, the 
 same as if summoned as a witness." Under others 
 only a conditional judgment liable to be made absolute 
 
 21 Fifield V. Wood, 9 Iowa, 249; Parmenter v. Chllds, 12 Iowa, 22; 
 Wilson V. Phillips, 5 Ark. 183. 
 
 2 2 Talladega Mercantile Co. v. McDonald, 97 Ala. 508, 12 Sonth. 
 34; United States Exp. Co. v. Bedbury, 34 111. 459; Russell v. Preed- 
 men's Sav. Bank, 50 Ga. 575; New England Mut. Ace. Ass'n v. Va- 
 rian, 151 Mass. 17, 23 N. E. 579; Rose v. Whaley, 14 La. Ann. 374; 
 Evans v. Mohn, 55 Iowa, 302, 7 N. W. 593; McDonald v. Finney, 87 
 Iowa, 529, 54 N. W. 476. 
 
 CAPTIOUS DEFAULT: A garnishee having appeared ready to 
 answer, by an arrangement with plaintiff's attorneys the taking of 
 his answer was deferred. It was no abuse of discretion to set aside 
 a default entered against the garnishee after he went away relying 
 on the agreement. Hueskamp v. Van Leuven, 56 Iowa, 653, 10 N. 
 W. 240. 
 
 FORGETFULNESS: Setting aside a default suffered by the mere 
 forgetfulness of the garnishee is not an abuse of discretion. Evans 
 V. Mohn, supra. 
 
 2 3 Debs V. Dalton, 7 Ind. App. 84, 34 N. E. 236. 
 
 2 4 Hibernia Savings & Loan'Soc. v. Superior Court of Inyo Co., 56 
 Cal. 265; Brown v. Moore, 61 Cal. 432; Smith v. Gower, 3 Mete. 
 (Ky.) 171; Giles v. Hicks, 45 Ark. 271; Sherman v. Cohen, 2 Strob. 
 (S. C.) 553; McDonald v. Benuel, 21 Law Rep. 157, Fed. Cas. No. 
 8.765. 
 
 (493) 
 
§ 387 LAW OF GARNISHMENT. [Ch. 18 
 
 on scire facias can be rendered in such cases.^'^ Un- 
 der others he is in the same position as any defendant 
 against whom default has been entered; the liability 
 being admitted, but not the amount, the latter must be 
 proved before final judgment can be rendered.''" Under 
 others he thereby becomes liable to satisfy any judg- 
 ment recovered in the main action, whatever it may 
 be." Under others no final judgment against the gar- 
 nishee can be had in the garnishment suit either by de- 
 fault or otherwise, but the liability there established 
 by answer or default must be enforced by an independ- 
 ent action brought against the garnishee for that pur- 
 
 23 Williams v. Vanmetre, 19 111. 293; Horat v. .Tackel, 59 111. 139. 
 
 2 6 pianegan v. Earnest, 1 Cband. (Wis.) 149, 164; Lewis v. Faul, 
 29 Ai-k. 470; Longwell v. Hartwell, 164 Pa. St. 533, 30 Atl. 495; 
 Debs V. Dalton, 7 Ind. App. 84, 34 N. E. 236. 
 
 27 Born V. Williams, 81 Ga. 790, 7 S. E. 868; Selman v. Orr, 75 
 Tex. 528, 12 S. AY. 697; Stockberger v. Lindsay, 65 Iowa, 471, 21 N. 
 W. 782; Harmon v. Harwood, 35 Vt. 211. 
 
 DEFAULT— LAW CONSTITUTIONAL: Having suffered default 
 to be entered against him under a statute declaring that in such 
 cases the plaintiff might maintain an action on the case against 
 him to satisfy the judgment recovered against the defendant, a gar- 
 nishee attempted to avoid liability on the ground that the law au- 
 thorizing the action was in conflict with the constitution, in that it 
 deprived him of his property without a jury trial, and without due 
 process of law. The court say: "This would undoubtedly be true if 
 he had not already had an opportunity to show the amount, and by 
 showing to limit his liability to it. The question is whether, having 
 once had and neglected or refused the opportunity, he is entitled to 
 have it a second time, or whether it is within the power of the leg- 
 islature to provide that upon proof of such neglect or refusal he may 
 be charged to the full extent of the original judgment in conse- 
 quence of such neglect or refusal without regard to the estate in his 
 hands. We know of no reason why it has not such a power. No 
 authority is cited to show that it has not." Yaughan v. Furlong, 
 32 R. I. 127. 
 (494) 
 
Ch. 18] JUDGMENT. § 38S 
 
 pose.^^ Under others default renders him liable to ab- 
 solute judgment for the full amount claimed against 
 him not exceeding the amount of the plaintiff's recov- 
 ery against the defendant.^" 
 
 Scire Facias and Proof of Regularity on. 
 
 § 388. It is also frequently provided that in cases 
 of default, before absolute judgment shall be rendered 
 against a garnishee for any amount, or before execu- 
 tion shall issue against his property, he shall be served 
 with a second summons to show cause why such judg- 
 ment should not be rendered,"" or such execution is- 
 
 2 8 Giles V. Hicks, 45 Ark. 271; St. Louis, I. M. & S. Ry. Co. v. 
 Rlchter, 48 Ark. 349, 3 S. W. 56; Wlngfleld v. McLure, 48 Ark. 510, 
 3 S. W. 439. See, also, ante, § 354. 
 
 But the presumption is that the afHdavit in garnishment Is true. 
 The garnishee fails at his peril to answer, and, in the absence of 
 evidence, a judgment for the full amount of the judgment in the 
 main action is correct. First Nat. Bank of Blue Hill v. Turner, 30 
 Neb. 80. 46 N. W. 290. 
 
 2 9 Wilson V. Phillips, 5 Ark. 183; Sarlouis v. Freemen's Ins. C!o. of 
 Baltimore, 45 Md. 241; Post v. Bo wen, 35 Md. 232, 40 Am. Dec. 
 345; Layman v. Beam, 6 Whart. (Pa.) 181; Jones v. Tracy, 75 Pa. 
 St. 417. 
 
 3 Williams v. Vanmetre, 19 111. 293; Herat v. Jackel, 59 111. 139 r 
 Meeker v. Sanders, 6 Iowa, 61; Iron ClifCs Co. v. Lahais, 52 Mich. 
 394, 18 N. W. 121. See, also, ante, § 316. 
 
 The statute allowing judgment to be made absolute on return of 
 two such notices "Not found," held, that the first notice must be is- 
 sued returnable at the next term of court, and returned "Not found," 
 before the second could issue, and reasonable effort must be made 
 to find the garnishee. Decatur, C. & N. O. Ry. Co. v. Crass, 97 Ala. 
 519, 12 South. 43. 
 
 NOTICE NOT JURISDICTIONAL: Held, that failure to serve 
 this notice is merely error, for which the absolute judgment may be 
 set aside on application within a reasonable time. Tillis v. Prest- 
 wood (Ala.) 18 South. 134. 
 
 (495) 
 
§ 389 ■■ LAW OP GARNISHMENT. [Ch. 18 
 
 sued." Before default can be entered against a gar- 
 nishee, there must be positive proof or sufficient evi- 
 dence in court of due service of process upon- him/^ 
 and all the requirements of the statute in other re- 
 spects must have been complied with." 
 
 Judgment on the Pleadings. 
 
 § 389. The garnishee's answer may show an abso- 
 lute liability, or the plaintiff may be content to rest his 
 case upon it, or desire to know whether, in the opin- 
 ion of the court, it is necessary to make any further 
 showing to be entitled to judgment against the gar- 
 nishee; or, failing to take further proceedings upon 
 it within the time allowed by law, the garnishee may 
 desire to have the matter disposed of. In any of 
 these cases a motion may be presented to the court to 
 render judgment upon the showing made by the rec- 
 
 si Fifield V. Wood, 9 Iowa, 249; Duncan t. Sangamo Fire Ins. C!o., 
 35 lo-wa, 20; Langford v. Ottumwa W. P. Co., 53 Iowa, 415, 5 N. W. 
 574. 
 
 3 2 Sun Mut. Ins. Co. t. Seeligson, 59 Tex. 3; Lehigh Val. Ins. Co. 
 V. Fuller, 81 Pa. St. 398. 
 
 A written admission of service, purporting to be signed by the gar- 
 nishee, is not sufticient. Johnson v. Delbrldge, 35 Mich. 436. 
 
 33 Lehman v. Hudmon, 79 Ala. .jo2; Bonner v. Martin, 37 Ala. 83; 
 Goode V. Holcome, Id. 94; Johnson v. McCutchings, 43 Tex. 533; 
 Griswold v. Popham, 1 Duv. (Ivy.) 170. 
 
 AFFIDAVIT STATING AMOUNT: Without the required affl- 
 {lavit a writ of garnishment was issued, naming the amount of the 
 judgment against the defendant as ^220.87, when it was $2,020.87. 
 Judgment by default against the garnishee for the latter amount 
 was set aside because for more than the amount specified in the 
 writ, and the writ was quashed because there was no affidavit. 
 Hoffman v. Simon, 52 Miss. 302. 
 (496) 
 
Ch. 18] JUDGMENT. § 389 
 
 ord, and this motion is in the nature of a demurrer/* 
 When the plaintiff asked the court for judgment upon 
 the answer before taking issue upon it, it was held 
 that upon the overruling of his motion the court 
 should enter final judgment discharging the garnishee, 
 and that the plaintiff could not, after demanding and 
 receiving the judgment of the court upon the answer, 
 take issue upon and proceed to contest it, for that 
 would, in effect, give him another trial/^ But, hav- 
 ing taken issue upon the answer, and demanded a trial 
 thereof, it was held that the plaintiff might well ask 
 the opinion of the court whether it was necessary to 
 introduce any testimony to show the liability of the 
 garnishee, and that the court cannot render final judg- 
 ment discharging the garnishee upon overruling the 
 plaintiff's motion for judgment upon the pleadings.^^ 
 Upon this motion judgment will be rendered in favor 
 of the garnishee, unless his liability clearly appears; ^' 
 but, if the admissions of the answer clearly show lia- 
 bility, judgment will be rendered against the gar- 
 nishee upon the plaintiff's motion, though issue has 
 not been taken upon the answer, and it positively de- 
 nies liability/' When the garnishee answers by way 
 of confession and avoidance, and thus assumes the af- 
 
 S4 Davis V. Pawlette, 3 Wis. 300, 306, 62 Am. Dec. 690; Piatt v. 
 Sauk Co. Bank, IT Wis. 222. 
 
 5-' :s[aboneT v. McLean, 28 Minn. 63, 9 N. W. 76. 
 
 "6.joUann v. Rufener, 30 AVis. 671. 
 
 If tlie parties proceed to controvert tlie answer by evidence upon 
 tlip hearing of tlie motion for judgment on the ansvcer, the court 
 may render final judgment upon denying the laoti^n. Murphree v. 
 City of Mobile (Ala.) IS South. 740. 
 
 a 7 See ante, § 314. 
 
 ssGrever v. Culver, 84 Wis. 295, .W N. W. 585; Curtis v. Brad- 
 ford, 33 Wis. 190. See, also, ante, § 313. 
 
 LAW GAEN ISH . 3 2 (497) 
 
§ 390 LAW OF GARNISHMENT. [Ch. 18 
 
 firmative, if he refuses to put in evidence, it is held 
 that the plaintiff should move the court to direct the 
 jury to return a verdict in his favor, and if, instead of 
 so doing, he moves the court for judgment upon the 
 pleadings, the motion should be denied.* 
 
 Setting Aside Judgments. 
 
 § 390. A court of general jurisdiction, having ren- 
 dered any judgment in a garnishment proceeding, 
 may, in the exercise of its discretion, upon cause 
 shown, set the same aside in the same manner as it 
 might in any other action,^' and upon the same prin- 
 ciple justices of the peace and other inferior courts, 
 not of record, have no power to vacate any judgment 
 rendered by them. When the judgment is rendered, 
 the justice loses all authority to do anything further 
 except issue execution or return the case to a higher 
 court on appeal. If a justice assumes to set aside a 
 judgment he has rendered, even though all the par- 
 ties consent thereto, any judgment he may afterward "i 
 render will be simply void.*" 
 
 ♦Willis V. Holmes (Or.) 42 Pac. 989. 
 
 sD See ante, § 386; First Nat. Bank v. Mellen, 45 llioh. 413. 8 N. 
 W. 80. 
 
 "It Is familiar doctrine that a court has control over its records 
 to alter or amend them, during the term at which they are en- 
 tered. If, therefore, the last order of distribution was proper, the 
 court committed no error in rescinding the first." Stahl v. Webster, 
 11 111. 511, 515. 
 
 "The judgments of the court are in the breast of the judge until 
 the final adjournment of the term, and may be set aside or modified 
 during the term." Talladega Mercantile Co. v. McDonald, 97 Ala. 
 508, 12 South. 34. 
 
 40 McCormick Harvesting Mach. Co. v. James, 84 Wis. 600, 54 N. 
 W. 1088; Hamill v. Ohamplin, 12 R. I. 124. 
 (498) 
 
Ch. 18] JUDGMENT. § 391 
 
 Nature and Amount of the Judgment. 
 
 Some SUitutes AUow no Final Judgment against the Garnishee. 
 
 § 391. Under many statutes no judgment can be 
 rendered in the garnishment proceedings against the 
 garnishee, whether his liability is established or not. 
 Garnishment under these statutes is intended merely to 
 operate as an assignment of the defendant's rights to 
 the plaintiff, enabling him to sue the garnishee as the 
 defendant might do. If the garnishee admits liability, 
 these statutes authorize the court to make an order 
 directing him to pay or deliver the property into court, 
 or to the plaintiff in garnishment; but obedience of 
 the order can only be enforced by an action by the 
 plaintiff against the garnishee, as in ordinary cases, 
 and cannot be compelled by execution against the gar- 
 nishee's property,*^ nor by imprisonment of the gar- 
 
 41 Missouri Paci Ry. Co. v. Reid, 34 Kan. 410, 8 Pac. 846; Ar- 
 tliur V. Hale. 6 Kan. 99; Giies v. Iliclvs, 45 Arli. 271; St. Louis, I. 
 M. & S. Ry. Co. V. Riclitei-, 48 Ark. 349, 3 S. W. 56; Rice v. Wtiit- 
 nev, 12 Ohio St. 358; Secor v. Witter, 39 Ohio St, 218; Conover v. 
 Conover. 17 N. J. Law, 187. 
 
 ORDER ENFORCEABLK BY EXECUTION: Held, that in gar- 
 nishment, after judgment obtained in the main action, this order 
 may be enforced by execution. Burlington & M. R. R. Co. v. Chi- 
 cago Lumber Co.. 18 Neb. 303, 25 N. W. 94. 
 
 Such order is final and enforceable by execution only on a liability 
 admitted by the garnishee. Clark v. Poxworthy, 14 Neb. 241, 15 
 N. W. 342. 
 
 UNAUTHORIZED JUDGMENT— INJUNCTION: When a final 
 judgment is rendered without authority, and execution issued there- 
 on, the garnishee is entitled to a perpetual injunction to restrain en- 
 forcement of the judgment and execution. Missouri Pac. Ry. Co. 
 V. Reid, 34 Kan. 410, 8 Pac. 846. 
 
 An order that the garnishee pay to the plaintiff held erroneous. 
 It should be an order that the plaintiff may sue. Deering v. Rich- 
 ardson-Kimball Co. (Cal.) 41 Pac. 81. 
 
 (499) 
 
§ 391 LAW OF GARNISHMENT. [Ch. 18 
 
 nishee for contempt, which would, in effect, be impris- 
 onment for debt.*^ Such an order is not a final de- 
 termination of the rights of the parties so as to pre- 
 vent inquiry in respect to them in the action thereon, 
 but simply enables the plaintiff to sue as the defend- 
 ant might." But most statutes authorize an absolute 
 judgment to be rendered against the garnishee, and 
 enforced by execution as in ordinary cases.** 
 
 42 West Side Bank v. Pugsley, 47 N. Y. 368; Union Bank of 
 Rocliester v. Union Bank of Sandusky, fl Ohio St. 254; Edgarton 
 & Wilcox V. Hanna, Garretson & Co., 11 Obio St. 323; Welch v. 
 Pittsburgh, Ft. W. & C. Ry. Co., 11 Ohio St. 569. 
 
 The garnishee being imijrisoned for contempt in not obeying the 
 order to pay into court, held that: "The whole proceeding of the 
 district court was irregular. It was the duty of the court simply 
 to render a judgment against the garnishee for the amount found 
 due, and the order to pay the same into court was improper." 
 Brummagim v- Boucher, 6 Cal. 16. 
 
 43 Trustees of Bacon Academy v. De Wolt, 26 Conn. 602; Rice 
 V. Whitney, 12 Ohio St. 358; Board of Education v. ScoviUe, 13 
 Kan. 18; Phelps v. Atchison, T., etc., R. Co., 28 Kan. 165; Mull v. 
 Jones, 33 Kan. 112, 5 Pac. 388; Linder v. Murdy, 37 Kan. 152, 14 
 Pac. 447; Bank of Le Roy v. Harding (Kan. App.) 41 Pac. 680; Hol- 
 lingsworth v. Fitzgerald, 16 Xeb. 492, 20 N. W. 836; Parker v. 
 Page, 38 Cal. 522; Penyan v. Berry, 52 Ark. 130, 12 S. W. 241; 
 Atlantic & Pac. Ry. Co. v. Hopkins, 94 U. S. 11. 
 
 The plaintilf is not entitled, a? of right, to litigate anew on a 
 scire facias the sum for which one summoned as trustee, in a 
 trustee process, shall be charged, if that question has been tried 
 and determined in the original suit, and the amount paid for 
 which the tnistee was there held chargeable. Brown v. Tweed, 
 2 Allen, 566; Jarvis v. Mitchell, 99 Mass. 530. But see Trustees of 
 Bacon Academy v. De Wolf, 26 Conn. 602. 
 
 44 De Witt V. "Kelly, 18 Or. 557, 23 Pac. 666; How. Ann. St. Mich. 
 §§ 8042, 8090. 
 
 The plaintiff may maintain an action of debt on a money judg- 
 ment against the garnishee. Chandler v. Warren, 30 Vt. 510. 
 (500) 
 
Ch. 18] JUDGMENT. § 392 
 
 Limited in Amount by lAahility of Defendant and Garnishee. 
 
 § 392. This judgment is limited in amount by the 
 plaintiff's recovery in the principal suit,*^ and the 
 amount he sought to recover in the garnishment suit,*" 
 and cannot be more than the established liability of 
 the garnishee.*' 
 
 4 5 strong V. Hollon, 39 Mieli. 411; Timmons v. .Tohnson, 15 Iowa, 
 23; Hitchcock v. Watson, 18 111. 289; Gen. St. Minn. c. U6, § 187. 
 
 48 AMOUNT STATED IN A1<'FIDAVIT: In holding absolute 
 judgment by default against a garnishee for mure than was claim- 
 ed in the affidavit to be erroneous, the supreme court of Alabama 
 say: "Affidavit and garnishment are the commencement of a suit. 
 They disclose what is sought to be recovered. It need scarcely 
 be stated that in judgment by default no greater sum can be re- 
 covered than is claimed." Carroll v. Milner, 93 Ala. 301, 9 South. 
 221. See, also, Hoffman v. Simon, 52 Miss. 302. 
 
 When the affidavit in garnishment mentioned no amount, it was 
 held that judgment for any amount was erroneous. Stickley v. 
 Little, 29 111. 315. 
 
 On summons to show cause why execution should not issue 
 against him, failure to answer the summons does not render the 
 garnishee liable to an increased judgment. Langford v. Ottumwa 
 W. P. Co., 53 Iowa, 415, 5 N. W. 574. 
 
 IN ILLINOIS the judgment against the garnishee in courts of 
 record must be for the whole amount of his liability to the de- 
 fendant, and not merely for enough to pay the plaintiff's judg- 
 ment. Stahl V. Webster, 11 111. 511; National Bank of America v. 
 Indiana Banking Co., 114 111. 483, 2 N. B. 401; Webster v. Steele,. 
 75 111. 544; Kern v. Chicago Co-operative Brewery Ass'n, 140 111. 
 371, 29 N. E. 1035. But in justice courts the judgment is limited 
 to the amount of the plaintiff's recovery, instead of being for the 
 whole amount of the garnishee's liability, as in the circuit court. 
 Pomeroy v. Rand, McNally & Co. (111. Sup.) 41 N. E. 636. 
 
 IN NEW JERSEY the judgment should be for the amount of the 
 ♦ garnishee's liability to the extent of the total demand of all cred- 
 itors entitled to share in the division of the garnished money. 
 Lomerson v. Hoffman, 24 N. J. Law, 674; Young v. Delaware. L. 
 & W. Ry. Co., 38 N. J. Law, 502. 
 
 47 Long well v. Hartwell, 164 Pa. St. 533, 30 Atl. 495; Wilcox v. 
 
 (501) 
 
§ 393 LAW OF GARNISHMENT. L^h- 18 
 
 Judgment for Property in Garnishee's Possession and Debts not Pay- 
 able in Money. 
 
 § 393. Ffom the universal principle that the gar- 
 nishee is in no case to, be placed in a worse position 
 than if sued by the principal defendant, unless by his 
 own fault," it also follows that when the garnishee is 
 charged because of possessing property belonging to 
 the defendant no absolute judgment for any amount 
 in money can be had against him unless upon his re- 
 fusal to turn over the garnished property on a proper 
 demand; *" and when he is charged as debtor of the 
 defendant, and his obligation to the defendant was 
 payable in auything other than money, he cannot be 
 
 Mills. 4 Mass. 218; Jarvis v. Mitchell, 99 Mass. 530; Talbot v. Tarl- 
 ton/ 5 J. J. Marsh. (Ky.) 641, 044; Burrus v. Moore, 63 Ga. 405; 
 Brown v. Silsby, 10 N. H. 521. 
 
 EKRONEOUS JUDGMENT: But if .iudgment is erroneously 
 given for a greater amount, the garnishee's only remedy is by ap- 
 peal. The judgment may be enforced if not appealed from. Biga- 
 low V. Barre, 30 Mich. 1; Burlington & M. R. Ry. Co. v. Hall, 37 
 Iowa, 620. 
 
 AGAINST INSOLVENT GARNISHEE: The fact that the gar- 
 nishee is insolvent is no reason why judgment should not be i-en- 
 dered against him for the full amount of his liability to the de- 
 fendant. Judgment should be rendered for the full amount, and 
 the plaintiff would then receive a proportionate share with other 
 creditors. Birmingham Nat. Bank v. Mayer (Ala.) 16 South. 520. 
 
 *8 See ante, § 48. 
 
 ■49 Rasmussen v. McCabe, 43 Wis. 471; Hawthorn v. Unthank, 
 52 Iowa, 507, 3 N. W. 518; Fountain v. Smith, 70 Iowa, 282, 30 N. 
 W. 635; Carter v. Kosliland (Or.) 11 Pac. 292; Longwell v. Hart- 
 well, 164 Pa. St. 533, 30 Atl. 495; Compare Lorenz v. King, 38 Pa. 
 St. 93. 
 
 When the garnishee is charged for promissory notes in his pos- 
 session, owned by him and the defendant jointly, he cannot be re- 
 quired to pay in money one-half of the face of the notes before col- 
 lection nor to surrender the notes, but should be ordered to pay the 
 (502) 
 
Ch. 18] JUDGMENT. § 393 
 
 charged for an absolute money judgment unless on his 
 refusal to pay to the plaintiff or the officer holding the 
 plaintiff's execution, according to his agreement with 
 the defendant." In such cases the judgment should 
 
 defendant's share of the money when collected. Cox v. Russell, 44 
 Iowa, 556. 
 
 CONVERSION: When It appears that the garnishee has convert- 
 ed the property to his own use, a judgment for its value is cor- 
 rect. Thayer v. Partridge, 47 Vt. 423. 
 
 PROPERTY HELD TO DEFRAUD CREDITORS: When prop- 
 erty is held by the garnishee for the puiipose of defrauding the 
 creditors of the defendant the conveyance to him is void, and no 
 judgment can be rendered against the garnishee for any amount 
 In money. A judgment should be rendered for the specific prop- 
 erty. Ringold V. Suiter, 35 W. Va. 186, 13 S. B. 46; Campbell v. 
 Simpkins, 10 Wash. 160, 38 Pac. 1039. Contra, Sutton v. Hasey, 58 
 Wis. 556, 17 N. W. 416; Ferguson v. Hillman, 55 Wis. 181, 12 N. 
 W. 389. 
 
 JUDGMENT FOR VALUE OF PROPERTY NO PROTECTION: 
 "A garnishee answered before a justice of the peace that he had 
 three hundred pounds of pork in his hands, belonging to the de- 
 fendant, whereupon the justice rendered judgment against the de- 
 fendant for the value of the pork. The garnishee did not appeal 
 from this judgment within the time prescribed by law, but brought 
 the case into the circuit court by certiorari, where the judgment of 
 the justice was quashed. * * * The judgment of the justice of 
 the peace is void, and not merely erroneous. The justice had no 
 power to render a judgment for money. It should have ordered the 
 pork to be delivered up for sale." Barrett v. Thomas, Thomp. Tenn. 
 Cas. 67. This case was approved and followed in Byrn v. Black- 
 man, 94 Tenn. 569, 29 S. W. 961, in which case it was held that a 
 judgment for the value of the property is no defense to a garnish- 
 ment seeking to reach the property itself, because "the only instance 
 In which a personal judgment may be rendei-ed against the gar- 
 nishee is when he refuses to deliver up the property. * * * There 
 was no demand made for the note by the officer serving the gar- 
 nishment, nor refusal by the garnishee to suiTender it, nor an in- 
 dorsement of that fact upon the execution, as required by the act." 
 60 See ante, § 116, 
 
 (503) 
 
§ 394 r^AW OF GARNISHMENT. [Ch. 18 
 
 be conditional; that is, that the garnishee deliver the 
 property of the defendant held by him to the officer 
 holding the execution issued on the judgment in the 
 principal suit; or that the garnishee pay to such offi- 
 cer according to the contract with the defendant 
 proved by such garnishee, and that upon his failure or 
 refusal to do so upon demand the plaintiff's judgment 
 become absolute for a specified amount in money, and 
 that the plaintiff have execution therefor/^ 
 
 For Unmatured Debts — Following Affidavit. 
 
 § 394. When the debt for which the garnishee is 
 charged is not yet due, the judgment should be made 
 payable at the time the debt is to become due, and ex- 
 ecution should be stayed till then; ^^ and, in case there 
 are previous garnishments, not yet disposed of, should 
 be limited to the amount that shall remain after the 
 
 Bi Stadler Bros. & Co. v. Parmlee, 14 Iowa, 175; Rasmussen v. 
 McCabe, 43 Wis. 471; Layman v. Beam, 6 Whart. (Pa.) 181; Hurst 
 V. Home Protection Fire Ins. Co., 81 Ala. 174, 1 Soutli. 209. 
 
 The plaintiff is entitled to a judgment for the value of the prop- 
 erty to the extent of the amount of the judgment against the debtor, 
 with costs of the proceedings, to be satisfied out of the property, 
 wherever it may be found; and, in case it cannot be found, or a 
 sufficient portion thereof to satisfy the amount of said judgment and 
 costs, the amount remaining due thereon may be satisfied out of 
 the property of the garnishee not exempt from execution. Carter y. 
 Koshland, 13 Or. 615, 12 Pac. 58, modifying the same case as re- 
 ported in 12 Or. 492, 8 Pac. 556, and 11 Pac. 292. The latest deci- 
 sion above is approved in De Witt v. Kelly, 18 Or. .557, 23 Pac. 666. 
 
 CONTEMPT PROCEEDINGS TO ENFORCE OBEDIENCE: 
 Held, that the order of the court that the garnishee pay over the sum 
 by the verdict of the jury found in his hands may and ought to be 
 enforced by attachment for contempt. Sherman v. Cohen, 2 Strobh. 
 (S. 0.) 553; Cheatham v. Seawright, 80 S. C. 101, 8 S. E. 526. 
 
 62 See ante, § 126. 
 (504) 
 
Ch. 18] JUDGMENT. § 395 
 
 previous garnishments are satisfied; and to determine 
 this, of course the proceedings will have to be stayed 
 till a final disposition of the other matters/^ It is 
 also a general principle that no judgment can be ren- 
 dered against the garnishee except in the capacity in . 
 which the proceedings against him were instituted/* 
 
 The Judgment Record — Form and Substance. 
 
 Entitiing — Combining. 
 
 § 395. The garnishment judgment should be en- 
 titled in the name of the plaintiff against the defend- 
 ant in garnishment as garnishee of the defendant in 
 the main action," and should be entered up separate 
 from the judgment against the principal defendant;^" 
 
 B3 See ante, § 190; Scott v. Windham (Miss.) 16 South. 206. 
 
 B4 See ante, §§ 50, 363. 
 
 neld, that a joint judgment may be rendered against garnishees 
 summoned severally. Boyd v. Rutledge, 25 Iowa, 271. 
 
 55 In garnishment proceedings entitled and conducted in the case 
 of Lindsley v. Watson, a judgment entered against the garnishee 
 entitled "Lindsey v. Watson" is erroneous, "Lindsley" and "Lind- 
 sey" not being idem sonans. Selman v. Orr, 75 Tex. 528, 12 S. W. 
 697. 
 
 IN ILLINOIS the judgment is docketed in the name of the de- 
 fendant against the garnishee, and for the use of the plaintifl: and 
 all other creditors entitled by law to share in the proceeds. Stahl 
 V. Webster, 11 111. 511; National Bank of America v. Indiana Bank- 
 ing Co., 114 111. 483, 2 N. E. 401; Hitchcock v. Watson, 18 111. 289; 
 Gillilan v. Nixon, 26 111. 50; Farrell v. Pearson, Id. 463; Rankin v. 
 Simonds, 27 111. 352; Oariker v. Anderson, Id. 358; Towner v. 
 George, 53 111. 168; Webster v. Steele, 75 111. 544; Wamo v. Kendall, 
 78 111. 598; Imperial Fire Ins. Co. v. Gunning, 81 111. 236; Ham v. 
 Beery, 39 111. App. 341. 
 
 68 Atchison V. Rosalip, 4 Chand. (Wis.) 12; Fasquelle v. Kennedy, 
 55 Mich. 305, 21 N. W. 347; Sun Mut. Ins. Co. v. Seeligson, 59 Tex. 3. 
 
 But an order that the garnishee pay to the plaintiff in a state in 
 
 (505) 
 
§ 396 LAW OF GARNISHMENT. [Ch. 18 
 
 and the judgments against several garnishees should 
 be entered up separately," although they were sum- 
 moned on the same writ/^ But failure to docket the 
 judgments separately, though an irregularity, does 
 not render them void/' The form of the record will 
 not be rigidly regarded in considering the validity of 
 the judgment."" 
 
 Eecitah and Averments — Time of Recording. 
 
 § 396. The record of the case should be made up 
 at the time the proceedings occurred, but failure in 
 this regard will not affect the validity of the judg- 
 ment. °^ The judgment entry should recite the fact 
 
 which no judgment can be rendered against the garnishee, held a 
 proper part of the judgment against the principal defendant. Jar- 
 vis V. JXitchell, 99 Mass. 530. 
 
 A .JOINT JUDGMENT cannot be rendered against the defendant 
 and garnishee. Fourth Nat. Bank v. Mayer, 89 Ga. 108, 14 S. E. 
 891. 
 
 The form for a joint decree against the debtor and garnishee in a 
 chancery garnishment is given by the court in Gilmore v. Miami 
 Bank, 3 Ohio, 503. 
 
 57 Cohn v. Tillman, 66 Tex. 98, 18 S. W. Ill; Conover v. Conover, 
 17 N. J. Law, 187. 
 
 A joint judgment against garnishees summoned severally has been 
 sustained on appeal because of the failure of the appellant to pre- 
 serve the evidence on which the court acted. Boyd v. Rutled.ge, 2.j 
 Iowa, 271. 
 
 5s rage V. Baldwin, 29 Vt. 428. 
 
 6 9 Fasquelle v. Kennedy, 55 Mich. 305, 21 N. W. 347; Sun Mut. 
 Ins. Co. V. Seeligson, 59 Tex. 3; Cohn v. Tillman, 60 Tex. 98, 18 
 S. W. Ill; Contra, Atchison v. Rosalip, 4 Chand. (Wis.) 12. 
 
 80 Rasmussen v. McCabe, 43 Wis. 471. 
 
 61 IlifC V. Arnott, 31 Kan. 672, 3 Pac. 525; Bushnell v. Allen, 48 
 Wis. 460, 4 N. W. 599; Gatchell v. Poster, 94 Ala. 622, 10 South. 
 434; Birmingham Nat. Bank v. Mayer (Ala.) 16 South. 520; Jack- 
 son V. St. Louis & S. P. Ry. Co., 89 Mo. 104, 1 S. W. 224. 
 
 A judgment by a justice against a garnishee will not be reversed 
 (506) 
 
'Ch. 18] JUDGMENT. § 396 
 
 and amount of the judgment in the main action,'"' and 
 show the nature, amount, and ground of the gar- 
 
 because of tha failure of the justice to docket the return of the 
 process on which the garnishee was summoned. Houston v. Wal- 
 cott & Co., 1 Iowa, 86. 
 
 82 Chambers v. Yarnell, 37 Ala. 400; Faulks v. Heard, 31 Ala. 516; 
 Brake v. Curd Sinton Manuf'g Co., 102 Ala. 339, 14 South. 773; 
 Barton v. Smith, 7 Iowa, 85; Bean v. Barney, 10 Iowa, 498; Tojl 
 T. Knight, 15 Iowa, 370; Alley v. Myers, 2 Tenn. Ch. 206; Drake, 
 Attachm. § 658a. 
 
 RECITING PRINCIPAL .TUDGJIENT— AMENDMENT: "The rec- 
 itation, however, of the fact and amount is the duty of the clerk, 
 and its omission may be corrected on motion. Whorley v. Railroad 
 Co., 72 Ala. 20; Randolph v. Little, 62 Ala. 396; Boyd v. Rutledge, 
 25 Iowa, 271; Jackson v. St. Louis & S. P. Ry. Co., 89 Mo. 104, 1 
 S. W. 224. The omission to recite the fact and amount of the judg- 
 ment against the original defendant is an irregularity not affecting 
 its validity when collaterally assailed." Gatchell v. Foster, 94 Ala. 
 622, 10 South. 434. Contra, Barton v. Smith, 7 Iowa, 85. 
 
 "After the appeal was taken, however, the judgment against the 
 garnishee was amended nunc pro tunc in the circuit coux-t, so that 
 it now contains the necessary recitals. * * * This amendment 
 was well made in our opinion, even after the lower court had lost 
 control of the cause by appeal; * * * and the case stands before 
 us now as if the judgment originally written up had been free from 
 this infirmity." Birmingham Nat. Bank v. Mayer (Ala.) 16 South. 
 520. 
 
 "The true rule is this: That in a garnishment proceeding under 
 an attachment or summons the record in such proceeding and in 
 the principal suit are to be read together, and it is sufficient if the 
 whole record shows that a judgment has been rendered against the 
 principal defendant. The rule contended for is only applicable 
 where a statute gives a garnishment proceeding upon a judgment 
 without execution." Bushnell v. Allen, 48 Wis. 460, 468, 4 N. W. 
 599. 
 
 A statement that judgment has been rendered in the main action, 
 giving the title of that action, is a distinct reference to the original 
 Judgment. Boyd v. Rutledge, 25 Iowa, 271. 
 
 Judgment against the defendant may be entered nunc pro tunc 
 lifter judgment is entered against the garnishee, and the latter judg- 
 
 (507) 
 
§ 396 LAW OF GARNISHMENT. [Ch. 18 
 
 nisliee's liability for which it is reiidered,^^ and that 
 all the statutory prerequisites to rendering judgment 
 have been complied with; " but it need not, in terms, 
 express that it is in satisfaction of the garnishee's lia- 
 bility to the defendant, though that is its legal effect."" 
 It is the garnishee's duty to see to it that the judg- 
 ment against him is properly recorded, and any pay- 
 ment of it by him before such record is made is wholly 
 voluntary, and at his peril."" 
 
 ment is as valid as if tlie otlier hacl been first entered. Capital City 
 Bank v. Wakefield, 83 Iowa, 46, 48 X. W. 1059. 
 
 03 Cunningham v. Hogan, 136 Mass. 407; Speak v. Kinsey, 17 Tex 
 801; King v. Hyatt, 41 Pa. St. 229. 
 
 It should carefully guard the garnishee's rights. Scott v. Wind- 
 ham (Miss.) 16 South. 206. See, also, ante, § 393. 
 
 When the garnishee is tenant of the judgment debtor, a judgmeni 
 against the garnishee, subrogating the plaintiff to the statutory lien 
 of the judgment debtor as landlord on the crops of the tenant need 
 not state the amount or value of the crops, but should identify '.he 
 premises on which they are grown. Kelly v. Gibbs, 84 Tex. 143, 19 
 S. W. 380, 563. 
 
 It should set out the amcunt of costs adjudicated In the proceedings 
 and in the principal suit, but the omission may be supplied in the 
 supreme court or in the court below on motion, if the record fur- 
 nishes sufficient data. Randolph v. Little, 62 Ala. 390. 
 
 6 4 See ante, § 213. 
 
 05 Stadler v. Parmlee, 14 Iowa, 175 
 
 The proper form in Illinois is given in Stahl v. Webster, 11 111. 51], 
 approved in Hitchcock v. Watson, 18 111. 289. 
 
 8 6 Emery v. Iloyal, 117 Ind. 299, 20 N. E. 150. 
 (508) 
 
Ch. 19] COSTS AND EXECUTION. § 397 
 
 CHAPTER XIX. 
 
 COSTS AND EXECUTION. 
 
 § 397. Costs in General. 
 
 3!1S. Costs when Garnishee is Charged. 
 
 399. Costs when Garnishee is Discharged — AVithout Contest. 
 
 400. Upon Trial. 
 
 401. Costs on Appeal. 
 
 402. Execution. 
 
 Costs in General. 
 
 § 397. Costs, when given by the court, must be 
 taxed at the time the judgment is rendered,^ and by 
 the court rendering,^ and are a part of the judgment.^ 
 When afterwards called to account by the defendant, 
 the garnishee can deduct only such costs as were as- 
 sessed in the garnishment suit,* and an order allow- 
 ing the garnishee costs without notice to the defend- 
 ant, and made after the garnishment proceedings are 
 
 1 Laclair v. Reynolds, 50 Vt. 418; Selz v. First Nat. Bank of Ft. 
 Atkinson, GO Wis. 240, 19 N. W. 43; Jackson v. St. Louis & S. F. 
 Ky. Co., 89 Mo. 104, 1 S. W. 224; Ladd v. Cousins, 52 iXo. 451; 
 Keating v. American Refrigerator Co., 32 Mo. App. 293. 
 
 Costs may be taxed when the scire facias is tried if not taxed be- 
 fore. Croxford t. Massachusetts Cotton Mills, 15 Gray (Mass.) 70. 
 
 2 Laclair v. Reynolds, 50 Vt. 418. 
 
 3 Winne v. Lenawee Circuit Judge, 74 Mich. 329, 42 N. W. 279; 
 Randolph v. Little, 62 Ala. 396; Speak v. Kinsey, 17 Tex. 301; Han- 
 DibHl & St. J. Rr. Co. V. Crane, 102 111. 249. 
 
 i Schwerin v. De Graff, 19 Minn. 414 (Gil. 359); Adams v. Penzell, 
 40 Ark. 531; State v. Bick, 36 Mo. App. 114. But see Blaisdell v. 
 Bowers, 40 Vt. 126. 
 
 Costs which the garnishee unnecessarily allows to accumulate in 
 the proceedings he cannot charge to his creditor. Berry v. Davis, 
 77 Tex. 191, 13 S. W. 978. 
 
 (509) 
 
§ 397 LAW OF GARNISHMENT. [Ch. 19' 
 
 dismissed, is void.' When the proceedings were dis- 
 continued because of the death of the defendant, it 
 was held that neither party could have an order for 
 costs." The correctness of the judgment in respect to 
 costs cannot be reviewed on a motion for a modifica- 
 tion of the judgment on appeal,^ nor upon exception 
 and assignment of error without a motion to the court 
 taxing the costs to rectify the error.* If the garnish- 
 ment is disposed of by trial, as in ordinary actions, the 
 same rules as to costs should govern." Costs are usu- 
 ally regulated to a large extent by statute, and, un- 
 less so provided for," cannot be demanded as of right, 
 but rest in the sound discretion of the court, and can- 
 not be reviewed on appeal." Costs are, as a rule, al- 
 lowed for travel and attendance to answer the gar- 
 nishment summons,'- and for continued attendance 
 
 c Kaufman v. Hude. 37 Mich. 123. 
 « Farnesworth v. Page, 17 N. H. 334. 
 
 7 Kraft V. Raths, 45 Mich. 20, 7 N. W. 232. 
 
 8 Lorman v. Phoenix Ins. Co., 33 Mich. 65. 
 
 s> Crocker v. Baker, 18 Pick. (Mass.) 407, 413; Peninsular Stove Co. 
 T. Circuit Judge of Wayne Co., 85 Mich. 400, 48 N. W. 549. 
 
 10 Morrison v. McDermott, 6 Allen, 122; National Union Bank v. 
 Brainerd, 65 Vt. 291, 26 Atl. 723; Moursund v. Priess, 84 Tex. 554, 
 19 S. W. 775. 
 
 11 White V. Kilgore, 78 Me. 323, 5 Atl. 70; Rollins v. Allison, 59- 
 Vt. 188, 10 Atl. 201; Kent v. Hutchlns, 50 N. H. 92; Hawkins v. 
 Graham, 128 Mass. 20. 
 
 Improper allowance of costs corrected on appeal in the following 
 cases: Darnell v. Wood, 82 Ga. 556, 9 S. E. 282; Holbrook v. Wa- 
 ters, 19 Pick. (Mass.) 354; Senior v. Brogan, 6G Miss. 178, 6 South.. 
 649; Bernhelm v. Brogan, 66 Miss. 184, 6 South. 649. 
 
 12 Wilcox V. Mills, 4 Mass. 218; Westphal, Hinds & Co. v. Clark, 
 42 Iowa, 371; Stockberger v. Lindsey, 65 Iowa, 471, 21 N. W. 782; 
 Goodrich v. Hopkins, 10 Minn. 162 (Gil. 130); McOonnell v. Rakness, 
 41 Minn. 3, 42 N. W. 539; National Union Bank v. Brainerd, 65 Vt. 
 
 (510) 
 
Ch. 19] COSTS AND ILXECUTION. § 397 
 
 SO long as is necessary," for counsel fees in preparing 
 the answer,^* and such other necessary expenses as 
 the court deemed reasonable; ^^ and in case issue is 
 made up between the plaintiff and garnishee, and tried, 
 the costs of the trial as in other actions, including at- 
 torney fees." 
 
 291, 26 Atl. 723; Lackett v. Rumbaugh, 45 Fed. 23; How. Ann. St. 
 Mich. §§ 8031, 8035. 
 
 Only actual travel ^nd expenses can be taxed. Hunt v. Miles, 42 
 Vt. 533. 
 
 13 Morrison v. McDerraott, 6 Allen, 122; Washburn v. Clarkson, 
 123 Mass. 319; Hawkins v. Graham, 128 Mass. 20; Ivellogg v. Waite, 
 99 Mass. 501. 
 
 COSTS FOR ATTENDANOP: WHILE MAIN ACTION IS PEND- 
 ING: A garnishee is not entitled to fees for continued attendance 
 during the litigation between the plaintiff and defendant, but only 
 for the term at which his answer was made. Hoyt v. Sprague, 29 
 Mass. 406; Wasson v. Bowman, 117 Mass. 91; Hawkins v. Graham, 
 128 Mass. 20. 
 
 The extent to which garnishees may properly appear in court 
 from time to time during the pendency of the main action must in 
 each case be determined upon the circumstances attending it. But 
 in all cases they would be entitled to tax for their ti-avel and at- 
 tendance for at least one term. Croxford v. Massachusetts Cotton 
 Mills, 81 Mass. 70; Holbrook v. Waters, 19 Pick. 354, 356. 
 
 14 Johnston v. Blanks, 68 Tex. 495, 4 S. W. 557; Willis v. Heath, 
 75 Tex. 124, 12 S. W. 971; Curtis v. Ford, 78 Tex. 262, 14 S. W. 614; 
 Carter v. Bush, 79 Tex. 29, 15 S. W. 167; Holbrook v. Waters, 19 
 Pick. 354; Rollins v. Allison, 59 Vt. 188, 10 Atl. 201; National Union 
 Bank v. Brainerd. 65 Vt. 291, 26 Atl. 723. 
 
 The fact that the counsel who prepared the answer is one of the 
 garnishees is immaterial. Holbrook v. Waters, 19 Pick. 354. 
 
 Costs cannot be recovered for making superfluous answers. Gerry 
 V. Gerry, 10 Allen, 160. 
 
 15 Moore v. Read, 84 Ga. 658, 11 S. E. -558; Peabody v. Maguire, 
 79 Mo. 572, 12 Atl. 030; iloody v. Carroll, 71 Tex. 143, 8 S. W. 510. 
 
 10 O'Reilly v. Cleary, 8 Mo. App. 186. Contra, Darnell v. Wood, 
 
 (511) 
 
§ 398 LAW OF GARNISHMENT. [Ch. 19 
 
 Costs when the Garnishee is Charged. 
 
 § 398. When the garnishee makes no active opposi- 
 tion to the proceedings it is not the design of the law, 
 nor is it justice, to mulct him with costs." These 
 must be taxed against the garnished property,^' and 
 the garnisliee may retain sufficient to reimburse his 
 expense in the proceeding," although his right to do 
 so is not specially stated in the statute; " and, if that 
 is not sufficient to pay them, may have judgment and 
 
 82 Ga. 556, 9 S. E. 282; Holbrook v. Waters, 19 Pick. 354; Hawk- 
 ins V. Graliam, 128 Mass. 20. 
 
 An attorney fee of $250 was held unwarranted when the good 
 faith of the transaction between the garnishee and the defendant 
 was the question at issue. Senior v. Brogan, 66 Jliss. 178, 6 South. 
 6-19; Bernheim v. Brogan, G6 Miss. 184, 6 South. 649. 
 
 1' Johnson v. Delbridge, 35 llleh. 437; Gracy v. Coates, 2 McCord 
 (S. C.) 224; Little Wolf River Imp. Co. v. Jackson, 66 Wis. 42, 49, 
 27 N. W. 625; Randolph v. Heaslip, 11 Iowa, 37; Langford v. Ot- 
 tumwa W. P. Co., 53 Iowa, 415, 5 N. W. 574. 
 
 18 Cleveland v. Clap, 5 Mass. 201; Talbot v. Tarleton, 5 J. J. 
 Marsh. (Ky.) 641; Prout v. Grout, 72 111. 457. 
 
 When it appears that the garnishee has sufScient in his hands out 
 of which to pay the whole of the plaintiff's claim and costs, held 
 that there was no error in charging him with costs. Williams v. 
 Housel, 2 Iowa, 154; Baltimore & O. Ry. Co. v. Taylor, 81 Ind. 24; 
 Frederick v. Easton, 40 Fa. St. 419; Witherspoon v. Barber, 3 Stew. 
 (Ala.) 335. 
 
 19 Holbrook v. Waters, 19 Pick. (Mass.) 354; Croxford v. Massa- 
 chusetts Cotton Mills, 15 Gray (Mass.) 70; Harnibal & St. J. Ry. 
 Co. V. Crane, 102 111. 249; Walcott v. Lenawee Circuit Judge 
 (Mich.) 65 N. W. 286. 
 
 But he cannot retain the costs incurred in a subsequent suit in 
 which he is summoned as garnishee. Bullard v. Hicks, 17 Vt. 198. 
 
 ^0 Crone v. Braun, 23 Minn. 2i!9; Clark v. Grcsham, 67 Miss. 203, 
 7 South. 223; Baker v. Lancashire Ins. Co., 52 Wis. 193, 8 N. W. 
 (512) 
 
Ch. 19] COSTS AND EXECUTION. § 398 
 
 execution against the plaintiff for the balance.^^ But 
 if he assumes the attitude of a litigant, and upon the 
 trial of the issue formed is found liable when he de- 
 nied liability, or if greater liability is established 
 against him than he admitted, he may be charged with 
 a judgment for costs, the same as any other party who 
 conducts an unsuccessful defense, although there be 
 no statute on the subject.^^ But if his admitted lia- 
 bility, and no more, be proven upon the trial, he is not 
 chargeable with costs,^^ but recovers his costs."* 
 
 611; Peabody v. Maguire, 79 Me. 572, 12 Atl. 630. Contra, Adams 
 V. Cordis, 8 Pick. (Mass.) 260. 
 
 He can lot have a Judgment therefor against the plaintiff, but 
 should have judgment against the defendant. Llano Imjirovement 
 & Furnace Co. v. Castanola (Tex. Civ. App.) 23 S. W. 1016. 
 
 21 Jarvis v. Mitchell, 99 Mass. 530; Hills v. Smith, 28 N. H. 369, 
 Contra, Llano Improvement & Furnace Co. v. Castanola (Tex. Civ. 
 App.) 23 S. W. 1016. 
 
 2 2 Strong V. Hollon, 39 Mich. 411; Jackson v. LeelauavF Circuit 
 Judge (Mich.) 05 N. W. 230; Kelly v. Glbbs, 84 Tex. 143, 19 S. W. 
 380; Newlin v. Scott, 26 Pa. St. 102; Lucas v. Campbell, 88 111. 447; 
 Hannibal & St. J. Ry. Co. v. Crane, 102 111. 249; Robinson v. Smith, 
 63 Mich. 350, 29 N. W. 858; Chase v. Manhardt, 1 Bland (Md.) 344; 
 Albert v. Albert, 78 Md. 338, 28 Atl. 388; Thompson v. Allen, 4 
 Stew. & P. (Ala.) 184; Haydock Carriage Co. v. Pier, 78 Wis. 579, 
 47 N. W. 945; Walker v. Wallace, 2 Dall. (U. S.) 113. 
 
 A garnishee is rendered liable for costs only by a refusal to an- 
 swer, or by conduct seeking to avoid a fair investigation of his lia- 
 bility. Randolph v. Heaslip, 11 Iowa, 37. 
 
 He cannot, then, as against the plaintiff, have his costs taxed 
 against the property In his hands. Moursund v. Priess, 84 Tex. 
 554, 19 S. W. 775; Bernheim v. Brogan, 66 Miss. 184, 6 South. 649. 
 
 2 3 Prout V. Grout, 72 111. 4.J6; Newlin v, Scott, 20 Pa. St. 102; 
 Breading v. Seigworth, 29 Pa. St. 396 ; National Union Bank v. Brain- 
 erd, 65 Vt. 291, 26 Atl. 723; Randolph v. Heaslip, 11 Iowa, 37; 
 Cornish v. Russell, 32 Neb. 397, 49 N. W. 379; Conant v. Bums (N. 
 H.) 19 Atl. 11. 
 
 2 4 How. Ann. St. Mich. § 8073. 
 
 LAW GARNISH. 33 (513) 
 
§ 399 LAW OP GARNISHMENT. [Ch. 19 
 
 Costs -wrhen the Garnishee is Discharged. 
 
 Without Contest. 
 
 § 399. When the garnishee is discharged upon his 
 answer,^' or because of the plaintiff's abandonment of 
 or failure to prosecute the proceedings,^* or when the 
 garnishment is dissolved by defendant giving bond 
 when the garnishee is nevertheless required to an- 
 swer," or has answered or appeared,^* he is usually 
 allowed a judgment against the plaintiff for costs to 
 cover the expense of his travel and attendance, the 
 fees of counsel who prepared his answer, and such 
 other necessary expense as the court, in its discretion, 
 may deem reasonable.^* But when the plaintiff does 
 not, after answer made, seek to establish the gar- 
 nishee's liability by following up the proceedings, tak- 
 ing issue upon and contesting the answer, costs can- 
 not be taxed as in an action. Such a practice would 
 make it extremely hazardous for a plaintiff to issue a 
 garnishment process in any case, and would tend to 
 defeat the purpose of the statute in allowing the rem- 
 
 25 Moore v. Read, 84 Ga. 658, 11 S. E. 558; Willis v. Heath, 75 
 Tex. 124, 12 S. W. 971; Phillips v. Wilson, 1 Pin. (Wis.) 513; Bul- 
 lard V. Hicks, 17 Vt. 198. But see McConnell v. Rakness, 41 Minn. 
 3, 42 N. W. 539. 
 
 26 Noble V. Bnuike, 44 Mich. 193, 6 N. W. 237. 
 
 27 Rome R. Co. v. Richnlond & D. R. Co., 60 Fed. 43. But see 
 Kaufman v. Hude, 37 Mich. 123. 
 
 2 8 Page V. Baldwin, 29 Vt. 428. 
 
 20 Kellogg V. Waite, 99 Mass. 501; Cheatham v. Seawright, 30 S. 
 C. 101, 8 S. E. 526. See, also, ante, § 397. 
 
 Counsel fees cannot be taxed in favor of the garnishee in justice 
 court Miller v. Williams, 30 Vt. 386. 
 (514) 
 
Ch. 19] COSTS AND EXECUTION. § 401 
 
 edy, which should always be as cheap and practicable 
 as possible.^" 
 
 Upon Trial. 
 
 § 400. When the plaintiff contests the garnishee's 
 answer, and fails to sustain his contention on the trial, 
 costs are usually given the garnishee against him, the 
 same as they would be in favor of any defendant who 
 succeeds in maintaining his defense.'" But this is by 
 no means the universal rule, especially when the good 
 faith of the transactions between the defendant and 
 the garnishee is the question at issxie." In determin- 
 ing whether such a case of fraud is made out as to ren- 
 der the garnishee liable for costs, though the jury find 
 a verdict in his favor, the court may act either upon 
 the finding of the jury or its own view of the evi- 
 dence; ^' and for costs incurred by the fault of the 
 garnishee he is liable, regardless of whether he is 
 charged or not.^* 
 
 Costs on Appeal. 
 
 § 401. A party who successfully prosecutes an ap- 
 peal cannot be taxed with the costs of the appeal.'" 
 
 30 Selz V. First Nat. Bank of Ft. Atkinson, 55 Wis. 225. 12 N. W. 
 433; Wolcott v. Lenawee Circuit Judge (Mich.) 65 N. W. 286. 
 
 31 Hill V. Smith, 28 N. H. 369. 
 
 A garnishee discharged on contest, cannot charge his expenses 
 against the property in his hands belonging to the claimant. Wol- 
 cott V. Lenawee Circuit Judge (Mich.) 65 N. W. 280. 
 
 3 2 Senior v. Brogan, 66 Miss. 178, 6 South, 649; Beruheim v. 
 Brogan, 06 Miss. 184, 6 South. 649. 
 
 3 3 Kent V. Hutching, 50 N. H. 92. 
 
 84 Hanson v. Butler, 48 Me. 80; Wearne v. Haynes, 13 Nev. 103. 
 
 3\\Vinne v. Lenawee Circuit Judge, 74 Mich. 329, 42 N. W. 278. 
 
 (515) 
 
§ 401 LAW OF GARNISHMENT. [Ch. 19 
 
 When the garnishee appeals, and the judgment ap- 
 pealed from is affirmed by the appellate court, he is not 
 entitled to any costs accruing after the appeal,^" and 
 may be charged with the plaintiff's costs." But when 
 he is successful in his appeal he is entitled to all his 
 costs,^* unless the success was obtained on a different 
 showing of facts than those made in the lower court; 
 for, if the judgment of the lower court was correct on 
 the facts before it, the garnishee cannot have costs. ^' 
 When the plaintiff appeals from a judgment in favor 
 of the garnishee, and succeeds in the appellate court, 
 he is entitled to a judgment for costs against the gar- 
 nishee; "" and if he fails the garnishee has a judgment 
 for costs against him. But when the court of its own 
 motion dismisses the plaintiff's appeal, no costs will 
 be awarded to the garnishee.*^ A garnishee cannot 
 recover costs for attendance in the appellate court on 
 the appeal of the principal case nor on the appeal 
 
 36 Ball V. Gilbert, 12 Mete. (Mass.) 397, 405; Kellogg v. Waite, 99 
 Mass. 501. 
 
 3 7 Goddard v. Collins, 25 Vt. 712. 
 
 38 Lorman v. Phoenix Ins. Co., 33 Mich. 65; Weirlch v. Scribner, 
 44 Mich. 73, 6 N. W. 91. 
 
 3 9 Lee V. Babcock, 5 Mass. 212. 
 
 40 Fearey v. Cummings, 41 Mich. 37G, 1 N. W. 946; Phillips v. 
 Wilson, 1 Pin. (Wis.) 513. But see Holbrook v. Waters, 19 Pick. 
 (Mass.) 354. 
 
 If the garnishee appeals, and fails in the supreme court, he can- 
 not tax his costs, but must pay costs to the plaintiff. But when 
 he follows the case to the supreme court upon an appeal by the 
 plaintiff he does not become an actor, or assume the attitude of a 
 litigant, and is therefore entitled to tax his costs although the judg- 
 ment of the lower court is modified in favor of the plaintiff. God- 
 dard V. Collins, 25 Vt. 712. 
 
 41 First Nat. Bank v. Mellen, 45 Mich. 413, S N. W. 80. 
 
 (516) 
 
Cll. 19] COSTS AND EXECUTION. § 402 
 
 from the judgment between the plaintiff and claimant, 
 except for necessary attendance.*^ But, so far as his 
 attendance is necessary, he is entitled to costs.*^ 
 
 Execution. ^ 
 
 § 402. Under most of the garnishment statutes the 
 final judgment in the garnishment proceedings may 
 be enforced by execution, as in other cases,** and all 
 the garnishee has to do to avoid personal liability and 
 costs is to deliver the garnished* property to the officer 
 holding the execution on the garnishment judgment; *° 
 and by such payment he does not waive any right he 
 may have to reverse the judgment by appeal, because 
 the payment is not voluntary.*® But no execution can 
 issue till the judgment is entered. Execution issued 
 on the order of court that judgment be rendered 
 against the garnishee is premature, and will afford the 
 
 42 Kellogg V. Waite, 99 Mass. 501; O'Donnell v. Mclntire, Id. 551. 
 
 43 Morrison v. McDermott, 6 Allen (Mass.) 122; Croxford v. Massa- 
 chusetts Cotton Mills, 15 Gray (Mass.) 70. 
 
 a De Witt v. Kelly, 18 Or. 557, 23 Pac. 666; Bigalow v. Barre, 30 
 Mich. 1. 
 
 Held, that the order should be enforced by attachment for con- 
 tempt. Sherman v. Cohen, 2 Serob. (S. C.) 553; Cheatham v. Sea- 
 wright, 30 S. C. 101, 8 S. E. 526. See ante, § 391. 
 
 JUDGMENT AGAINST RECEIVERS: When judgment is ren- 
 dered against a receiver as garnishee, the judgment cannot be en- 
 forced by execution, but only by order of the court appointing the 
 receiver, for the execution would interfere with the exclusive con- 
 trol of the appointing court. Irwin v. McKechnie, 58 Minn. 145, 59 
 N. W. 987. 
 
 45 Nash V. Gale, 2 Minn. 310 (Gil. 265); Storm v. Cotzhausen, 38 
 Wis. 139, 143; How. Ann. St. Mich. § 8044. 
 
 48 Watson V. Kane, 31 Mich. 61. 
 
 (517) 
 
§ 402 LAW OF GARNISHMENT. [Ch. 19 
 
 officer no protection/' It has generally been held 
 that this judgment cannot be collected by garnish- 
 ment." When an order is made, which, from its na- 
 ture, cannot be enforced by execution, — as when the 
 garnishee is ordered to dispose of property in his 
 hands, pay his own claim out of it, and account to the 
 plaintiff for the balance, — supplemental proceedings 
 in the nature of an application for an order requiring 
 the garnishee to account afford an appropriate means 
 to rendering the garnishment effectual.*" 
 
 *^ Langdon v. Thompson, 25 Minn. 509. 
 
 ■»8 Illinois Cent. Ry. Co. v. Weaver, 54 111. 319; Wolf v. Tappan, 
 5 Dana (Ky.) 361. Contra, Sperling v. Calfee, 7 Mont. 514, 19 Pac. 
 204. 
 
 *8 McDonald v. Creager (Iowa) 65 N. W. 1021. 
 (518) 
 
Ch. 20] APPEALS. § 403 
 
 CHAPTER XX. 
 
 APPEALS. 
 
 § 403. Right to Appeal— No Party can Complain of a Judgment 
 against Another. 
 
 404. Each Party must Appeal for Himself. 
 
 405. Eight to Appeal Statutory. 
 
 406. From What Appeal Lies. 
 
 407. Effect of Appeal. 
 
 408. The Record. 
 
 409. The Action of the Appellate Court. 
 
 Right to Appeal. 
 
 No Party can Complain of a Judgment against Another. 
 
 § 403. The garnishee cannot appeal from the judg- 
 ment in the main action/ and on the appeal of the 
 garnishment suit he cannot take advantage of any ir- 
 regularities in the main action not going to the juris- 
 diction of the court. ^ He cannot by appeal ask to 
 have the judgment against the claimant reversed." 
 On the other hand, the defendant cannot appeal from 
 the judgment against the garnishee,* unless his ex- 
 
 1 Mead v. Doe, 18 Wis. 31. 
 
 2 Ante, § 22(>. 
 
 3 Alamo Ice Co. v. Yancey, 66 Tex. 187, 18 S. W. 499; Germania 
 Sav. Bank v. Peuser, 40 La. Ann. 79G, 5 South. 75. 
 
 < Kellogg V. Waite, 99 Mass. 501; Miere v. Brush, 3 Scam. (IIU 21; 
 Welch V. Pittsburgh, F. W. & C. Ry. Co., 11 Ohio St. 569; Llchten- 
 berg V. Hosmer Circuit Judge (Mich.) 63 N. W. 963. CONTRA, 
 Sinard v. Gleason, 19 Iowa, 163; Daniels v. Clark, 38 Iowa, 556; 
 Hurlburt v. Hicks, 17 Vt. 193; Kallsky v. Currey, 9 Baxt. (Tenn.) 214. 
 
 When the judgment in the main action is not shown to be un- 
 just, and the garnishee does not appeal, the garnishment judgment 
 
 (519) 
 
§ 404 LAW OP GARNISHMENT. [Ch. 20 
 
 empt property is involved,^ or he can vacate it, and 
 take it up by appealing the main action; ° nor from 
 the judgment against the claimant.'' After appeal by 
 the garnishee the defendant cannot maintain certio- 
 rari/ But appeal lies by one garnishee from a judg- 
 ment discharging his cogarnishee when his own lia- 
 bility would thereby be increased.' 
 
 Each Party must Appeal for Himself. 
 
 § 404. Neither the garnishee," the claimant,^^ nor 
 the defendant ^^ can intervene or claim any rights un- 
 der an appeal prosecuted by either of the others. 
 
 will not be disturljeiJ on the defendant's appeal. Fanning v. Min- 
 nesota Ry. Co., 37 Iowa, 379. 
 
 When the right to appeal is given by statute, the court will not 
 disturb the judgment on the ground that the garnishee colluded 
 with the plaintiff. Barber v. Walker, 26 Wis. 44. 
 
 When there was a joinder in error by the defendant and gar- 
 nishee, held, if the defendant could not complain of errors in the 
 proceedings against the garnishee, the latter could. Hodson v. Mc- 
 Connel, 12 111. 170. 
 
 The defendant cannot take advantage of clerical errors in the pro- 
 ceedings against the garnishee. Carper v. Richards, 13 Ohio St. 219. 
 
 5 Wilson V. Bartholomew, 45 Mich. 41, 7 N. W. 227; Crisp v. Ft. 
 Wayne & E. Ey. Co., 98 Mich. 648, 655, 57 N. W. 1050; Wigwall v. 
 Union Coal & Mining Co., 37 Iowa, 129; Webster v. City of Lowell, 
 2 Allen, 123. 
 
 6 Webster v. City of Lowell, 2 Allen, 123. 
 
 ^ McNeill v. Kyle, 86 Ala. 338, 5 South. 461; Miere v. Brush, 4 
 111. 21. 
 
 8 Lichtenberg v. Hosmer Circuit .ludge (Mich.) 63 N. W. 963. 
 
 9 Creasap v. Bower, 41 Iowa, 210. 
 
 10 Bryant v. Bigelow, 9 Lea (Tenn.) 135. 
 
 When the garnishee joins T^ith the defendant in the same writ, 
 held, that his rights may be considered. Hodson v. McOonnel, 12 
 111. 170. 
 
 11 Alamo Ice Co. v. Yancey, (!<> Tex. 187, 18 S. W. 499. 
 
 12 Cowan V. Lowry, 7 Lea (Tenn.) 620. 
 (520) 
 
Ch. 20] APPEALS. § 405 
 
 Each must take his own appeal.^^ They cannot join.^* 
 But a joint judgment against a number of garnishees 
 may be appealed from on one writ of error/" 
 
 Right to Appeal Statutory. 
 
 § 405. Appeal, as distinguished from the common- 
 law writ of error, is a purely statutory creation, and 
 the fact that the statute does not give the right to ap- 
 peal in any particular case is a sufficient reason for 
 saying that the right does not exist.^" But garnish- 
 ment proceedings do not involve the same parties or 
 issues as the main action, and either the plaintiff or 
 garnishee may, as matter of right, under the general 
 statute authorizing appeals in civil cases, appeal from 
 the judgment rendered therein,^' although the main 
 action is not appealed.^' And most of the garnish- 
 ment statutes provide that appeals may be taken as 
 
 isAtcheson v. Smith, 3 B. Mon. (Ky.) 502; Pupke v. Meador, 72 
 Ga. 230. 
 i4.Tolinsoii V. Plimpton, 30 Vt. 420. 
 
 15 Suiter V. Bi-ooks, 74 Ga. 401. Compare Cairo & St. L. R. Co. v. 
 Hindman, 85 111. 521. 
 
 16 Prince v. Heenan, 5 Minn. 347 (Gil. 279); Church v. French, 
 54 Vt. 420. 
 
 17 Allen V. Partlow, 3 S. C. 417; Kayser v. Bauer, 5 Kan. 202; 
 Strickland v. Maddox, 4 Ga. 393; Bebb v. Preston, 1 Iowa, 460; Van 
 Buskirk v. Martin, 28 Vt. 726; Patterson v. Harland, 12 Ark. 158; 
 V^^elsh V. Noyes, 10 Colo. 133, 14 Pac. 317; White v. Washington 
 School Dist.. 45 Conn. 59. 
 
 The right of the principal defendant to appeal from the judgment 
 against him under trustee process proceedings exists under the gen- 
 eral appeal statute, though not given by the statute under which 
 the proceedings are conducted. Allen v. Seaver, 38 Vt. 673. 
 
 18 Albachten v. Chicago, St. P. & K. C. Ry. Co., 40 Minn. 378, 42 
 N. W. 86; Bebb v. Preston, 1 Iowa. 460; .lohnson v. Plimpton, 30 
 Vt. 420; Van Buskirk v. Martin, 28 Vt. 726. 
 
 (521) 
 
§ 406 LAW OF GARNISHMENT. [Ch. 20 
 
 in other cases." An intervening claimant may ap- 
 peal from a judgment for costs against him.^° 
 
 Froin What Appeal Lies. 
 
 § 406. That only orders and judgments final in 
 their nature, and affecting the substantial rights of 
 the parties, are appealable, is a general rule, appli- 
 cable to garnishments as to other forms of action.''^ 
 The difficulty is in determining in practice what or- 
 ders and judgments come within the rule. It has 
 been held that no appeal lies from an order for final 
 judgment against the garnishee, but only from the 
 judgment when entered,^ ^ and the same is held of an 
 order requiring a garnishee to pay money into court. "^ 
 Yet the clerk may reduce the order to the form of a 
 judgment, and from this appeal may be maintained; ^^ 
 and the same court holds that an order discharging the 
 garnishee may be appealed from before final judg- 
 ment is entered upon it," and before final judgment 
 in the main action.^" It is held in Massachusetts that 
 
 19 Newell V. Blair, 7 Jlicli. 103, 106; Cliurcli v. French, 54 Vt. 420. 
 
 2 KlmpsOD V. Hunt, 4 Iowa, 340. 
 
 21 First Nat. Bank v. Mellen, 45 Mich. 413, 8 N. W. 80; Moore v. 
 Hill, 87 Ga. 01, 13 S. E. 259. 
 
 2 2 Croft V. Miller, 26 Minn. 317, 4 N. W. 45. 
 
 2 3 Williams v. Brechler, 75 Wis. 309, 43 N. W. 952; Eilei-s v. 
 Wood. 64 Wis. 422, 25 N. W. 440. 
 
 2 4 Albachten v. Chicago, St. P. & K. C. Ry. Co., 40 Minn. 378, 42 
 N. W. 86. 
 
 2 5 McConnell v. Rakness, 41 Minn. 3, 42 N. W. 539; National Bank 
 of Galena v. Chase, 71 Iowa, 120, 32 N. W. 202. 
 
 2 6 Albachten v. Chicago, St. P. & K. 0. Ry. Co., 40 Minn. 378, 42 N. 
 W. 86; Turpin v. Coates, 12 Neb. 321, 11 N. W. 300; National Bank 
 of Galena v. Chase, 71 Iowa, 120, 32 N. W. 202. 
 (522) 
 
Ch. 20] APPEALS. § 406 
 
 appeal does not lie from a ruling in favor of the claim- 
 ant until it has been embodied in a judgment between 
 the plaintiff and garnishee, discharging the latter so 
 far as the claimant's rights are upheld; " and in Ala- 
 bama that an order discharging a garnishee before 
 judgment in the main action is not appealable.^' An 
 order directing the garnishee to answer more fully 
 does not go to the merits of the case, and is not ap- 
 pealable,^^ and an order allowing the garnishee to file 
 an answer is of the same nature.^" The formal order 
 charging or discharging the garnishee, which is not 
 an adjudication of the plaintiff's right to charge him, 
 but merely ground for issuing a scire facias, is not 
 final, and therefore not appealable.^^ It is held that 
 error by the defendant does not lie from an order over- 
 ruling the motion to discharge the garnishee, made 
 before judgment in the main action, because the order 
 was not a final adjudication of the garnishee's liabil- 
 ity; '^ but the same order, made after judgment in 
 the main action, is held to be' final, and on it defend- 
 ant may bring error; '^ and the same is held of an or- 
 der that the garnishee pay money into court,^* and 
 
 27 GifCord v. Rockett, 110 Mass. 71; First Nat. Bank v. Mellen, 45 
 Mich. 413, 8 N. W. 80. 
 
 2 8 Terrv v. Hughes, 9.3 Ala. 432, 8 South. 686. 
 29 Lusk V. Galloway, 52 Wis. 164, 8 N. W. 608. 
 80 Moore v. Hill, 87 Ga. 91, 13 S. E. 259. 
 
 31 Tweedy v. iN'ichols, 27 Conn. 519; Robinson v. Mason, Id. 270. 
 8 2 Miller v. Noyes, 34 Kan. 13, 7 Pac. 602; Kansas City, St. J. & 
 C. B. Ry. Co. V. Gough, 35 Kan. 1, 10 Pac. 89, 94. 
 
 3 3 early le v. Smith, 36 Kan. 614, 14 Pac. 156. 
 
 Such an order held appealable, and an order denying a motion 
 to set it aside held not appealable. Deering v. Richardson-Kimball 
 Co. (Cal.) 41 Pac. 801. 
 
 3 4 Furstenheim v. Adams, 42 Ark. 283. 
 
 (523) 
 
§ 406 LAW OP GARNISHMENT. [Ch. 20 
 
 an order adjudging him in contempt for not obeying 
 such order/" Whether an order that the plaintiff's 
 traverse of the garnishee's answer be stricken from the 
 files is a final and appealable order has been doubt- 
 ed.'" An order taxing costs before judgment is not 
 appealable independent of the final judgment," but, 
 if made after final judgment, it is.'* The main action 
 may be appealed, though no judgment has been ren- 
 dered in the garnishment suit.'" If an order or a 
 judgment is final, appeal is usually the only remedy.** 
 The question whether a particular order or judgment 
 is appealable should be raised by motion to dismiss 
 the appeal.*^ Mandamus is the proper remedy to put 
 aside oppressive interlocutory orders when the action 
 of the court is without legal foundation,*^ but cannot 
 
 3 5 Hagerman v. Tong Lee, 12 Nev. 331. 
 
 3 6 "Perhaps there is a distinction between cutting the plaintiff off 
 in his appointed remedies for prosecuting the case and forcing upon 
 him defensive pleadings in behalf of the garnishee." Tim v. Frank- 
 lin, 87 Ga. 93, 13 S. E. 259. 
 
 3 7 Walmer v. Shulenberger, 23 Ind. 454. 
 
 3 8 Selz V. First Nat. Bank of Ft. Atkinson, 60 Wis. 246, 19 N. W. 43. 
 
 3s> Hayes v. Stewart, 23 Vt. 622. 
 
 "0 U. S. V. Swan, 13 C. C. A. 77, 65 Fed. 647; Burlington & M. R. 
 Ry. Co. V. Hall, 37 Iowa, 620; Bigalow y. Barre, 30 Mich. 1; Car- 
 roll V. Parkes, 57 Tenn..269; Durant y. Staggers, 2 Nott. & McC. 
 (S. C.) 488. 
 
 Being out of the course of the common law, held, that certiorari 
 is the proper method to obtain a review. Curtis v. Steeyer, 36 N. J. 
 Law, 304. 
 
 When an erroneous judgment is rendered against the garnishee, 
 he cannot obtain 'elief by bringing an action in the name of the 
 defendant against the plaintiff on the ground that the Judgment in 
 the main action was unauthorized. Braynard y. Burpee, 27 Vt. 616. 
 
 11 Furstenheim v. Adams, 42 Ark. 285. 
 
 42 Townsend y. Cass Circuit Judge, 39 Mich. 407. 
 (524) 
 
Ch. 20] APPEALS. § 407 
 
 be employed to obtain a review of orders in cases 
 where there is an adequate remedy by error or ap- 
 peal/^ 
 
 Effect of Appeals. 
 
 § 407. The appeal of the garnishment proceedings 
 has no effect on thQ main action.*^ An appe.al of the 
 main action by the principal defendant suspends,'"' 
 and by force of statute in some states discontinues, the 
 ancillary garnishment proceeding,*" the appeal bond 
 taking the place of the security acquired by the gar- 
 nishment.*^ A reversal of the judgment against the 
 defendant in the main action vacates the judgment 
 against the garnishee rendered before the appeal was 
 taken.*^ If the court has jurisdiction and renders a 
 judgment against the garnishee, who regularly pays 
 it, neither the subsequent reversal of it nor of the 
 judgment in the main action, upon the defendant's mo- 
 tion or appeal, will render the garnishee liable to him 
 
 ■43 Ex parte Hum, 92 Ala. 102, 9 South. 515. 
 
 44 Jarvis v. Mitchell, 99 Mass. 530; Cowan v. LoT?ry, 7 Lea (Tenn.) 
 620. 
 
 'I'he defendant cannot mterveue on the garnishee's appeal. Cowan 
 T. LowiTi above. In Massachusetts no judgment can be rendered 
 against the garnishee separate from the judgment in the main ac- 
 tion except on scire facias, and it is there held that the plaintifE 
 waives his appeal against the garnishee by taking judgment against 
 the defendant before the appeal is decided. Jarvis v. Mitchell, 99 
 Mass. 530. 
 
 *!i Kay lor v. Brunswick, 6 Heisk. (Tenn.) 235. 
 
 4 6 How. Ann. St. Mich. § 8041. 
 
 4 7 Bushey v. Raths, 45 Mich. 181, 185, 7 N. W. 802. 
 
 4 8 Clough V. Buck, 6 Neb. 343; Rowlett v. Lane, 43 Tex. 274; 
 Smith V. Kansas City, St. J. & C. B. Ry. Co., 49 JIo. App. 54; Mitch- 
 ell V. Watson, 9 Fla. 100; Witliington v. South worth, 20 Mich. 381. 
 
 (525) 
 
§ 407 LA.W OF GARiMSHMENT. [Oh. 20 
 
 for the amount paid on the garnishment judgment," 
 or enable the garnishee to recover it from the plain- 
 tiff in garnishment/" The defendant's remedy is by 
 action against the plaintiff for money received to his 
 use." At common law a writ of error was a superse- 
 deas of execution from the time of its allowance, and 
 the court issuing it would stay proceedings on the 
 judgment while the writ was pending. But when the 
 statute substituting an appeal in the place of the com- 
 mon-law writ of error provided that, if a stay is de- 
 sired, a bond with sufficient surety shall be executed 
 by the appellant, or some one for him, it was held that 
 the plain purpose of the statute was to change the 
 common-law rule. Therefore, when a chancery gar- 
 nishment was dissolved by a decree providing that, if 
 the plaintiff should give bond in a specified sum with- 
 in 30 days, the garnishment should remain in full 
 force, and the plaintiff, within the 30 days, appealed, 
 but gave bond for the costs of the appeal only, the 
 court held that the appeal without the bond was not 
 sufficient to prevent the garnishee from paying to his 
 creditor, and was therefore no ground for stay of ex- 
 ecution against the garnishee upon a judgment recov- 
 ered against him by his creditor. '^^ Judgment for the 
 defendant in the main action, unless appealed from 
 within the time allowed by law therefor, entitles the 
 garnishee to be discharged;'^ but an appeal by the 
 
 oTroyer v. Schweizer, 15 Minn. 241 (Gil. 187); Richardson v. 
 Hickman, 22 Ind. 244; Montgomery Gasllglit Co. v. Merrick, 01 Ala. 
 534. 
 
 60 Duncan v. Ware, 5 Stew. & P. (Ala.) 119. 
 
 01 Allen V. Seaver, 38 Vt. 673; Elliot v. Sneed, 1 Scam. (111.) 517. 
 
 5 2 Montgomery Gaslight Co. v. Merrick, 61 Ala. 534. 
 
 OS Suydam v. Huggelord, 23 Pick. (Mass.) 405; Peterson v. Hays, 
 (526) 
 
Ch. 20] APPEALS. § 407 
 
 plaintiff from the judgment rendered against him in 
 the main action preserves his lien on the garnished 
 property/* and the garnishment proceedings, being 
 merely ancillary," necessarily go with the main ac- 
 tion to the appellate court,°° unless judgment has been 
 
 85 Iowa, 14, 51 N. W. 1143; Sherrod v Davis, 17 Ala. 312; State 
 V. Cunnlngliam, 9 Neb. 146, 1 N. W. 1011. 
 
 WHETHER COURT MAY DISCHARGE GARNISHEE BEFORE 
 TIME FOR APPEAL EXPIRES: Held, that the justice who ren- 
 dered the judgment in the main action against the plaintiff has no 
 authority to discharge the garnishee thereon till the time for appeal 
 has expired. Erickson v. Duluth, S. S. & A. Ry. Co. (Mich.) 63 N. 
 W. 420. 
 
 Held, that the rendering of the judgment against the plaintiff 
 entitles the defendant to the immediate possession of the property 
 in the hands of the garnishee, unless the court order the garnishee 
 to retain it, and that the certiorari operates as a supersedeas only 
 from the date of granting it. Seamans v. King, 79 Ga. 611, 5 S. 
 E. 53. 
 
 64 Erickson v. Duluth, S. S. & A. Ry. Co. (Mich.) 63 N. W. 420; 
 Treat v. Dunham, 74 Mich. 114, 41 N. W. 876; Dolby v. Tuigley, 
 9 Neb. 412, 2 N. W. 866; Kennedy v. Tiernay, 14 R. I. 528; Puff t. 
 Hutcher, 78 Ky. 146; Han'ison v. Trader, 29 Ark. 85; Danforth v. 
 Carter, 4 Iowa, 230; Drake, Attachm. § 427. 
 
 As to what bond is necessary to preserve the lien, see Lehnoff v. 
 Fisher, 32 Neb. 107, 48 N. W. 821. 
 
 The appeal must be perfected within the prescribed time. Peter- 
 son V. Hays, 85 Iowa, 14, 51 N. W. 1143. 
 
 5 5 See ante, § 2. 
 
 56 Dolby V. Tingley, 9 Neb. 412, 2 N. W. 866; Chase v. Foster, 9 
 Iowa, 429; Kennedy v. Tiernay, 14 R. I. 528; Boynton v. Foster, 7 
 Mete. (Mass.) 415; Webster v. City of Lowell, 2 Allen, 123. See, 
 also, ante, § 326. 
 
 It has been said that this statement does not apply to proceedings 
 by writ of error or certiorari in which the appellate court does not 
 try the case de novo, but merely reviews and corrects the errors 
 committed by the trial court. In order to have errors in the gar- 
 nishment proceedings reviewed in such cases, probably an inde- 
 pendent writ should be issued to bring them up. Withiugton v. 
 
 (527) 
 
§ 407 LAW OP GARNISHMENT. [Ch. 20 
 
 rendered discharging the garnishee before the appeal 
 was taken, in which case some of the decisions indi- 
 cate that the plaintiff must take a separate appeal in 
 the garnishment suit if he wishes to preserve his 
 lien." The appeal of the main action ousts the lower 
 court of further jurisdiction of the garnishment suit, 
 and any order afterwards made by the lower court 
 therein is simply void, and no appeal need be taken 
 from it.^* It has been held that the garnishee is 
 bound to take notice that an appeal has been taken 
 from the judgment for the defendant,^' and of course 
 he must take notice of the law giving the right to ap- 
 peal,"" and payment by him to the defendant after he 
 has notice of the plaintiff's intention to appeal will not 
 
 South worth, 26 Mich. 381: Welch v. Pittsburgh, Ft. W. & C. Ry. 
 Co., 11 Ohio St. 569. Contra, Kennedy v. Tiernay, 14 R. I. 528. 
 
 When one writ of error was issued, and the defendant and gar- 
 nishee joined in the assignments of error, it was lield that the 
 whole case might be considered by the supreme court. Hudson v. 
 McConnel, 12 111. 170. 
 
 IN MICHIGAN it was held that the statutes indicated an inten- 
 tion on the part of the legislature that the garnishment should not 
 follow the main action when it was appealed. Brickson v. Duluth, 
 S. S. & A. Ry. Co. (Mich.) 63 N. W. 420. The legislature then in 
 session immediately enacted that the garnishment shall follow the 
 suit. Pub. Acts Mich. 1895, No. 252. 
 
 5T Brown v. Tuppeny, 24 Kan. 29; Dolby v. Tingley, 9 Neb. 412, 
 2 N. W. 866. Contra, Kennedy v. Tiernay, 14 R. I. 528; Erickson v. 
 Duluth. S. S. & A. Ry. Co. (Mich.) 63 N. W. 420. 
 
 OS Boynton v. Foster, 7 Mete. (Mass.) 415; Erickson v. Duluth, S. 
 S. & A. Ry. Co. (Mich.) 68 N. W. 420. 
 
 Held, that the justice of the peace from whom the appeal is 
 taken cannot allow an indorsement of return by the ofBcer on the 
 garnishment writ after the appeal is taken. Vail v. Rowell, .53 Vt. 
 109. 
 
 ii9 PufE V. Hutcher, 78 Ky. 146; Chase v. Foster, 9 Iowa, 429. 
 
 Erickson v. Duluth, S. S. & A. Ry. Co. (Mich.) 63 N. W. 420. 
 (528) 
 
Ch. 20] APPEALS. § 408 
 
 relieve him from liability to the plaintiff; " and it is 
 doubtful, to say the least, whether any payment be- 
 fore an order of court is made discharging the gar- 
 nishee will afford him any protection against the plain- 
 tiff if the latter does finally succeed in recovering a 
 judgment in the main action.'^ 
 
 The Eecord. 
 
 § 408. The record is the written history of the pro- 
 ceedings in the cause, kept as a memorial thereof, and, 
 when completed by the entry of final judgment, was at 
 common law called the "judgment roll." °^ Unless 
 other matters are incorporated into it by bill of ex- 
 ceptions, it consists only of the process, pleadings, ver- 
 dict, and judgment."* In the absence of bill of excep- 
 tions it is held that neither the judgment in the main 
 action,"" the interrogatories and answers by the gar- 
 nishee in the garnishment suit,"' nor the garnishee's 
 
 01 Danforth v. Rupert, 11 Iowa, 547, 551; Drake, Attachm. § 427. 
 
 62 Harrison y. Trader, 29 Ark. 85. See ante, § 382. 
 
 es Steph. PI. (Tyler's Ed.) 61, 116, 142; 3 Bl. Comm. 24. 
 
 e< 3 Enc. PI. & Prac. 378. 
 
 65 Gunn V. Howell, 27 Ala. 663; Paulks v. Heard, 31 Ala. 516; 
 Gould V. Meyer, 36 Ala. 565; Curry v. Woodward, 44 Ala. 305. 
 
 The court will not dismiss the case because the record does not 
 contain the final judgment in the main action. "Where the record 
 contains everything necessary for this court to pass upon the errors 
 complained of in that regard, it is sufficient to challenge our atten- 
 tion, even although the record does not contain the final judgment 
 in the original case." Bradley v. Byerley (Kan. App.) 42 Pac. 930. 
 
 «<! Sinard v. Gleason, 19 Iowa, IO.t; Brainard v. Simmons, 58 Iowa, 
 464, 9 N. W. 382, and 12 N. W. 484, Rothrock, J., dissenting. C!on- 
 tra, Rankin v. Simonds, 27 111. 352; Perea v. Colorado Nat. Bank 
 (N. M.) 27 Pac. 322. 
 
 LAW GARNISH. — 34 (529) 
 
§ 408 LAW OP GAHNISHMENT. [Ch. 20 
 
 formal answer, unless considered as in the nature of 
 a pleading," are any part of the record, except when 
 incorporated into or clearly identified by the judg- 
 ment against the garnishee/* It has been held that 
 unless the record show all facts necessary to confer 
 jurisdiction on the court rendering the judgment it 
 cannot be sustained on appeal,'" but, those facts ap- 
 pearing, it will be sufficient,^" and the court will al- 
 ways adopt such a construction of the record as will 
 make it consistent and regular, if possible,'^ and, rath- 
 
 67 Brainard v. Simmons, 58 Iowa, 404, 9 N. W. 382, and 12 N. W. 
 484: Lovejoy v. Lee, 35 Vt. 430. See ante, § 288. 
 
 The supreme court of Alabama seems to have taken the incon- 
 sistent position that the answer is neither pleading nor evidence. 
 See ante, § 289; Decatur, 0. & N. O. Ry. Co. v. Crass, 97 Ala. 519, 
 12 South. 43. 
 
 «8 Corbitt v. Pynes, 45 Ala. 258; CuiTy v. Woodward, 44 Ala. 30.">. 
 
 "The answer of a garnishee, though in writing, is not part of the 
 record, unless made so by bill of exceptions, or recitals in the 
 judgment entry. Gaines v. Beime, 3 Ala. 114; Bostwick v. Beach, 
 18 Ala. 80; Saunders v. Camp, 6 Ala. 73. If it is in writing, and is 
 identified by the judgment entry, it will be considered part of the 
 record. Jones v. Howell, 16 Ala. 695. A recital in the judgment 
 entry that the garnishee has filed an answer will authorize this 
 court to look to an answer, found in the transcript, as a part of the 
 record. Price v. Thompson, 11 Ala. 875; Fortune v. Bank, 4 Ala. 
 385; Stubblefleld v. Hagerty, 1 Ala. 38. But if there is a conflict 
 between the recitals of the judgment entry of what the answer con- 
 tains and the answer found in the transcript, verity will be ac- 
 corded to the recitals of the judgment entry. Gaines v. Beime, 
 supra; Saunders v. Camp, supra." Decatur, C. & N. O. Ry. Co. v. 
 Crass, 97 Ala. 519, 12 South. 43. 
 
 69 Miller v. Wilson, 86 Tenn. 495, 7 S. W. 638; Pickler v. Rainey, 
 4 Heisk. (Tenn.) 335. Contra, Moore v. Reeves, 47 Iowa, 30. 
 
 7 Gunn v. Howell, 27 Ala. 663. 
 
 71 Prout V. Grout, 72 111. 457; Moove v. Reeves, 47 Iowa, 30; Prest- 
 wood V. Tillis, 96 Ala. 181, 11 South. 283. 
 (530) 
 
Ch. 20] APPEALS. § 409 
 
 er than reverse a judgment or dismiss an appeal when 
 the record is imperfect or incomplete because of omis- 
 sion or formal error, the court will, upon motion, 
 award certiorari to bring up the record of the lower 
 court,'^ or without action remand the case to the lower 
 court for correction," or the supreme court will itself 
 make the correction if the record furnishes sufficient 
 data.'* 
 
 Action of the Appellate Court. 
 
 § 409. When the cause is tried de novo upon ap- 
 peal, the action of the lower court is unimportant, ex- 
 cept so far as affecting the question of jurisdiction.'^ 
 The appellate court follows its own practice,'" but 
 tries the same issues, and with the same effect, as the 
 parties were entitled to in the lower court," In a 
 court of review merely no other objections'* to the 
 pleadings or proceedings in the trial court will be con- 
 sidered unless the error is shown by the record sent 
 
 72 Blair v. Rhodes, 5 Ala. 648; Curry v. Woodward, 44 Ala. 305; 
 Cairo & St. L. Ry. Co; v. Hindman, 85 111. 521. 
 
 7 3 Randolph v. Little, 62 Ala. 396. 
 
 A merely formal correction may be made by the lower court after 
 It has lost control of the case by appeal. Birmingham Nat. Bank t. 
 Mayer (Ala.) 16 South. 520. 
 
 7 4 Blair V. Rhodes, 5 Ala. 648; Randolph v. Little, 62 Ala. 396. 
 
 75 Miller v. Wilson, 86 Tenn. 495, 7 S. W. 638. 
 
 The disclosure of the garnishee in the lower court may be put Id 
 evidence against him on the trial in the appellate court. Newell t. 
 Blair, 7 Mich. 103. 
 
 7 6 Newell V. Blair, 7 Mich. 103. 
 
 77 Welsh V. Noyes, 10 Colo. 133, 14 Pac. 317. 
 
 7 8 Jurisdiction may be questioned at any stage of the case. Cole- 
 man's Appeal, 75 Pa. St. 441. 
 
 (531) 
 
§ 409 LAW ov garnishmejST. [Cli. 20 
 
 up,'" is prejudicial/" is claimed by exception taken in 
 the trial court," is clearly within the assignments of 
 error,^^ and is relied upon by counsel in their brief/* 
 A court of review will never disturb a judgment ren- 
 dered by the trial court when the evidence upon 
 which the trial court acted is not all before the court 
 of review,^* nor when there was any evidence to sup- 
 's Richards v. Smith, 9 Gray (Mass.) 315; Hinkley v. St. Anthony 
 Falls Water Power Co., 9 Minn. 55 (Gil. 44); Kimball v. Macomber, 
 50 Mich: 362, 15 N. W. 511; Rutter v. Shumway, 16 Colo. 95, 26 Pac. 
 321; Bralnard v. Shannon, 60 Me. 342. 
 
 Error will never be presumed. Iliff v. Arnott, 31 Kan. 672, 3 
 Pac. 525. 
 
 80 Arenz v. Reihle, 1 Scam. (111.) 340; Houston v. Walcott & Co., 
 1 Iowa, 86; Buckey v. Phenicie (Colo. App.) 35 Pac. 277. 
 
 81 Moore v. Hill, 87 Ga. 91, 13 S. E. 259; John R. Davis Lumber 
 Co. V. First Nat. Bank of Milwaukee, 90 Wis. 464, 63 N. W. 1018; 
 Eason v. Gester, 31 Iowa, 475; Robison v. Saunders, Kibben & 
 Co., 14 Iowa, 539; Smith v. Chapman, 6 Port. (Ala.) 365; Daniel v. 
 Hopper, 6 Ala. 296. 
 
 It has also been held that the trial court must have been given 
 opportunity to correct the error on motion to set aside judgment on 
 the ground of it. Robison v. Saunders, Kibben & Co., 14 Iowa. 539. 
 Contra, Mears v. Adreon, 31 Md. 229. Compare Lorman v. Phoenix 
 Ins. Co., 33 Mich. 65. 
 
 82 Sherwood v. Stevenson, 25 Conn. 431, 437; Falconer v. Head, 
 31 Ala. 513. 
 
 8 3 Black V. Dawson, 82 Mich. 485, 46 N. W. 793. 
 
 In the above case counsel for the garnishee, just before the hear- 
 ing, filed an exhaustive supplementary brief, resting on grounds 
 not urged in the original brief, but the court refused to allow such 
 advantage to be taken,' and considered only the original brief. 
 
 8* Prout V. Grout, 72 111. 456; Kimball v. Macomber, 50 Mich. 
 
 362. l.j N. W. .511; Iliff v. Arnott, 31 Kan. 672, 3 Pac. 525; Brown 
 
 v. Ridgway, 10 Pa. St. 42; Gidding's Appeal, 81 Pa. St. 72; Wilson 
 
 v. Albright, 2 G. Greene (Iowa) 125; Stockton v. City of Burlington, 
 
 (532) 
 
Ch. 20] APPEALS. § 409 
 
 port the judgment rendered/" nor to relieve a party 
 who has not appealed/" nor because of errors not ob- 
 jected to in the trial court, but first relied upon in the 
 court of review,*' nor when the judgment appealed 
 from is correct though rendered upon an incorrect 
 view of the law,** nor because of any ruling of the trial 
 court upon matters lying within its peculiar discre- 
 tion, unless that discretion has been abused. *° The 
 court of review will consider the case as standing in 
 the same condition as it stood in the trial court."" If 
 the court of review finds no prejudicial error, the judg- 
 ment below will be affirmed; and, if such error is 
 found, and the record clearly indicates what judgment 
 should be rendered, the appellate court may enter such 
 
 4 G. Greene (Iowa) 84; Sheppard & Co. v. Downing, 14 Iowa, 597; 
 Duncan v. Sangamo Fire In^. Co., 35 Iowa, 20. 
 
 soKauffman v. Jacobs, 49 Iowa, 432; Bucliliam v. Wolf, 58 Iowa, 
 601, 12 N. W. 623; Spencer v. Moran, 80 Iowa, 374, 45 N. W. 902; 
 Farrington v. Sexton, 43 Mich. 454, 5 N. W. 654; Weibler v. Ford 
 (Minn.) 63 N. W. 1075; Field v. Malone, 102 Ind. 251, 1 N. E. 507; 
 Parker v. Page, 38 Cal. 522. 
 
 When the record purports to be full, and contains nothing to au- 
 thorize the judgment rendered, it will be reyersed. Kiggins v. 
 Woodke, 78 Iowa, 34, 34 N. W. 789; Miller v. Wilson. 86 Tenn. 495, 
 7 S. W. 638. 
 
 8ti Ford V. Detroit Dry-Dock Co., 50 Mich. 358, 15 N. W. 509. 
 
 87 Banning v. Sibley, 3 Minn. 389 (Gil. 283, 294); Pitzsimmons v. 
 Carroll, 128 Mass. 401; Groome v. Lewis, 23 Md. 137, 87 Am. Dec. 
 563. 
 
 8 8 Bigalow V. Barre, 30 Mich. 1; Field v. Malone, 102 Ind. 251, 1 
 N. B. 507; Smith V. Brown, 5 Cal. 118; Everett v. Westmoreland, 92 
 Ga. 670, 19 S. E. 37; Kentzler v. Chicago, M. & St. P. Ry. Co., 47 
 Wis. 641, 3 N. W. 369. 
 
 80 Milliken v. Mannheimer, 49 Minn. 521, 52 N. W. 139. For other 
 decisions on this proposition, see ante, §§ 309, 310, 386, 397. 
 
 00 Kennedy v. McLellan, 76 Mich. 598, 43 N. W. 641. 
 
 (533) 
 
§ 409 LAW OF GARNISHMENT. [Ch. 20 
 
 judgment without remanding the case," or remand it 
 with orders to the lower court to enter judgment in 
 accordance with the view of the appellate court. 
 Otherwise the judgment will be reversed, and the case 
 remanded to the lower court for a new trial. "^ 
 
 91 Donnelly v. O'Connor, 22 Minn. 309; Craft v. Louisville & N. 
 Ry. Co., 93 Ala. 22, 9 South. 328. 
 »2 Chicago, St. L. & P. Ry. Co. y. Jleyer (Ind.) 19 N. E. 320. 
 (534) 
 
ANALYTICAL INDEX. 
 
 GENERAL NATURE OF THE GARNISHMENT REMEDY- 
 SCOPE AND STATUTORY CONSTRUCTION. (Chap. 1.) 
 General Nature, § 1. 
 Ancillary to Principal Suit, § 2. 
 An Action against the Garnishee. § 3. 
 A Proceeding at Law, § 4. 
 Substantially a Proceeding in Rem, § 5. 
 A Statutory Remedy, § 6. 
 General Object, § 7. 
 General Statutory Construction, §§ 8-11. 
 Who May Employ Garnishment Process, § 12. 
 In What Cases Garnishment May Issue, § 13. 
 
 WHO MAY BE MADE A GARNISHEE. (Chap. 2.) 
 Grounds of Exemption— Practice, § 14. 
 Nonresidents, § 15. 
 Private Corporations, §§ 16-17. 
 Municipal Corporations, §§ 18-24. 
 
 State and National Governments and Their Officers, §§ 25-26. 
 Courts and Their Officers, §§ 27-35. 
 Attorneys at Law, § 3G. 
 Common Carriers, § 37. 
 
 Infants, Lunatics, and Married Women. § 38. 
 Plaintiffs, § 39. 
 Defendants, § 40. 
 
 Husband or Wife of Defendant, § 41. 
 Officers and Agents of Defendant Corporation, §§ 42-43. 
 
 LIABILITY OP GARNISHEE— HOW DETERMINED. (Chap. 3.) 
 Fundamental Principles, §§ 44^9. 
 Grounds of Liability, § 50. 
 Statutory Terms, § 51. 
 
 What Kind of Possession is Sufficient to Charge the Garnishee, 
 §§ 52-56. 
 
 LAW GARNISH. (535) 
 
536 LAW OF GARNISHMENT. 
 
 LIABILITY OF GARNISHEE— HOW DETERMINED— Cont'd. 
 AVhat Constitutes a Debt, §§ 57-59. 
 Garnishee's Contracts, §§ 60-05. 
 
 Assignments of Garnished Property or Debt, §§ 66-69. 
 Orders, Checks, and Drafts as Assignments of the Fund Drawn 
 
 on, §§ 70-72. 
 What is Assignable— Future Wages and Debts to Accrue, §§ 73- 
 
 74. 
 Invalid and Fraudulent Assignments, §§ 75-81. 
 
 STATUTES EXEMPTING CERTAIN PROPERTY AND CREDITS 
 FROM GARNISHMENT. (Chap. 4.) 
 
 What Property and Credits are Exempt, § 82. 
 
 Exemption— How Claimed, §§ 83-85. 
 How Waived, § 86. 
 
 Wages, Personal Earnings, Laborers, Householders, etc., De- 
 fined, §§ 87-91. 
 
 Exemption Not Affected by Residence, § 92. 
 
 Limitation of Right to Claim Exemption, §§ 93-94. 
 
 Exempt Property Cannot be Impounded by Garnishment, § 95. 
 
 Voluntary Sale of Exempt Property, § 96. 
 
 Proceeds of Exempt Property Destroyed or Converted Without 
 Owner's Consent, § 98. 
 
 Personal Earnings and Pension Money Exempt after Payment, 
 § 99. 
 
 Exemption Laws Have no Force Out of the State, §§ 100-101. 
 
 Remedy of Persons Defrauded of Their Exemption, §§ 102-103. 
 
 Suits in DifCerent States— Double Liability of Garnishee, §§ 104- 
 107. 
 
 DEBTS AND PROPERTY WHICH ARE SUBJECT TO GARNISH- 
 MENT. (Chap. 5.) 
 Corporate Stock, §§ 108-111. 
 
 Stockholder's Liability for Unpaid Installments, §§ 112-114. 
 Obligations Not Payable in Money, §§ 115-117. 
 Contingent Debts, §§ 118-125. 
 Absolute Debts before Maturity, § 126. 
 Obligations for Payment of Which Defendant Holds Security, 
 
 § 127. 
 Debts for Which the Garnishee Has Given His Note, §§ 128-137. 
 Debts to Pay Which Check Has Been Given, § 137a. 
 Interest Due on Indebtedness, §§ 138-142. 
 Demands in Suit or Judgment, §§ 143-147. 
 
ANALYTICAL INDEX. 537 
 
 DEBTS AND PEOPERTY WHICH ARE SUBJECT TO GAR- 
 NISHMENT— Cont'd. 
 Rights of Action for Torts or for Damages Unliquidated, §§ 148- 
 
 152. 
 Equitable Claims, §§ 153-154. 
 Debts and Property Belonging to Part of the Defendants, § 155. 
 
 Belonging to the Defendants and Others Jointly, §§ 156-162. 
 Choses in Action in Garnishee's Possession, §§ 163-168. 
 Mortgaged, Pledged, and Incumbered Property, §§ 169-176. 
 Real Property, § 177. 
 
 GARNISHEE'S POSITION, RIGHTS, AND DUTIES. (Chap. 6.) 
 Position in General, § 178. 
 As a Defendant, § 179. 
 
 Receiver, § 180. 
 
 Witness, § 181. 
 Rights of the Garnishee, § 182. 
 Duties of the Garnishee, §§ 183, 184. 
 
 GARNISHMENTS AND OTHER PROCEEDINGS CONCURRENT 
 —PRIORITY— ADDITIONAL REMEDIES. (Chap. 7.) 
 Garnishment an Additional Remedy, §§ 185-186. 
 Aid of Equity, § 187. 
 Concurrent Garnishments of Same Fund, §§ 188-191. 
 
 EFFECT OF GARNISHMENT AS AN ATTACHMENT. (Chap. 8.) 
 The Service of the Garnishment Attaches the Property or Debt,. 
 
 §192. 
 Creates a Specific Lien, § 193. 
 Places Property in Custodia Legis, § 194. 
 
 EFFECT OF GARNISHMENT AS A STAY OF OTHER PRO- 
 CEEDINGS AGAINST THE GARNISHEE. (Chap. 9.) 
 What Actions are Stayed, § 195. 
 Manner of Pleading a Pending Garnishment, §§ 196-201. 
 
 EFFECT OF GARNISHMENT AS A DEFENSE TO SUBSEQUENT 
 LIABILITY. (Chap. 10.) 
 
 In General, §§ 202-205. 
 
 Garnishee's Knovcledge That Others Than the Defendant Claim 
 the Property, §§ 206-207. 
 
 How Far Judgment against the Garnishee and Unpaid is a De- 
 fense, § 208. 
 
 Mode of Satisfying the Garnishment Judgment, §§ 209-210. 
 
538 LAW OF GARNISHMENT. 
 
 EFFECT OF GARNISHMENT AS A DEFENSE TO SUBSE- 
 QUENT LIABILITY— Cont'd. 
 How Far Garnistiment Judgment is Rea Judicata, §§ 211-212. 
 Essentials of a Judgment to be a Valid Defense, §§ 213-217. 
 How Defense Should be Pleaded and Proved, §§ 218-220. 
 
 JURISDICTION. (Ctap. 11.) 
 In General, §§ 221-222. 
 Inherent Authority of the Court, § 223. 
 Jurisdiction of the Principal Suit, §§ 224-229. 
 Effect of General Appearance by Defendant, §§ 230-232. 
 Jurisdiction Acquired by Substituted Service, § 233. 
 Jurisdiction of the Garnishment Suit, §§ 234-238. 
 Jurisdiction of Property Sought to be Garnished, §§ 239-246. 
 
 AFFIDAVIT TO OBTAIN GARNISHMENT. (Chap. 12.) 
 Jurisdictional Prerequisites— A Complaint— Entitling, § 247. 
 Misjoinder of Actions — One AflBdavit for Two Writs, § 248. 
 Judgment Can be Only for Liability Charged in the Affidavit, 
 
 § 249. ,, 
 
 Averments, Positive and Alternative — Qualifications of Affiant 
 
 and Magistrate, § 250. 
 What Averments are Essential, § 251. 
 
 Unnecessary, § 252. 
 Amending the Affidavit, § 253. 
 Proper Phrasing of Essential Averments, § 254. 
 Time of Swearing to and Filing the Affidavit, § 255. 
 
 THE SUMMONS OR WRIT OF GARNISHMENT. 
 Issues of Course Pursuant to Affidavit, § 256. 
 Special Notice with, § 257. 
 
 The Writ is a Process and Must Possess Process Elements, § 258. 
 Entitling— One Writ for Two Suits, § 259. 
 
 Executors, Corporations, etc.— How Named as Garnishees, § 260. 
 All Obligees Must be Named to Reach Joint Liability, § 261. 
 Joint and Several Obligees as Garnishees, § 262. 
 Garnishees Severally Liable Named as Joint, § 263. 
 When Returnable, § 264. 
 
 Must be in Writing and Contain Statutory Clauses, § 265. 
 Naming and Misnaming the Parties, § 266. 
 
 Errors and Irregularities— How Taken Advantage of and Cured, 
 § 267. 
 
ANALYTICAL INDEX. 539 
 
 SERVICE OF GARNISHMENT SUMMONS. 
 
 Must be Made within Proper Time and Territory by Proper Offi- 
 cer, § 208. 
 Must Otherwise Comply with Statute, § 269. 
 Garnishee May Waive Irregularities, § 270. 
 
 Cannot Waive Jurisdictional Defects, § 271. 
 Service of Garnishment Summons upon Natural Persons, § 272. 
 
 on Corporations, § 273. 
 Laws for Substituted Service Constitutional, § 274. 
 Such Statutes Must be Strictly Pursued, § 275. 
 Such Service No Foundation for Personal Judgment, § 276. 
 
 THE OFFICER'S RETURN. 
 
 The Only Proper Evidence of Service, § 277. 
 
 Should State Acts Done— Time and Persons Served, § 278. 
 
 Defects in— How Cured, § 279. 
 NOTICE OF GARNISHMENT TO THE PRINCIPAL DEFEND- 
 ANT. 
 
 No Notice Need be Served on Defendant, § 280. 
 
 Notice Required by Statute is to Secure Good Faith, § 281. 
 
 AVhether Jurisdictional, § 282. 
 
 Time, Manner, Sufficiency, and Waiver of Service of This No- 
 tice, § 283. 
 
 PROCEEDINGS TO VACATE GARNISHMENT FOR ERRORS, 
 ETC., § 284. 
 
 APPEARANCE OF THE GARNISHEE. 
 Manner— Right of— How Enforced, § 285. 
 Effect of General Appearance, § 286. 
 
 THE DISCLOSURE OR ANSWER OF THE GARNISHEE. (Chap. 
 13.) 
 
 Its Nature, §§ 287-289. 
 
 The Garnishee's Refusal to Answer, §§ 290-292. 
 
 When Answer May be Made. §§ 293-297. 
 
 How Answer Should be Made, § 298. 
 
 By Whom Answer Should be iMade, §§ 299-300. 
 
 What the Answer Should State and How, §§ 301-306. 
 
 Exceptions to the Sufficiency of the Answer, § 307. 
 
 The Extent of the Plaintiffs Right to Examine the Garnishee, 
 § 308. 
 
 Amending, Supplementing, Modifying, and Contradicting the Dis- 
 closure, §§ 309-311. 
 
540 LAW OP GAKNISHMENT. 
 
 THE DISCLOSURE OR ANSWER OF THE GARNISHEE— Cont'd. 
 The Construction and Effect to be Given to tbe Garnistiee's An- 
 swer, §§ 312-315. 
 
 SCIRE FACIAS OR SUMMONS TO SHOW CAUSE, § 316. (Chap. 
 14.) 
 
 PAYMENT OP GARNISHED PROPERTY INTO COURT, § 317. 
 
 BOND TO DISCHARGE AND RELEASE GARNISHED PROP- 
 ERTY. 
 Object and Construction of Statutes, § 318. 
 Right to Release on Bond Statutory— Effect of Bond, § 319. 
 Bond to Pay What Plaintiff May Recover in Main Action, § 320. 
 
 Might be Recovered of Garnishee, § 321. 
 Construction of Bond, § 322. 
 Defenses to Action on Bond, § 323. 
 Manner of Enforcing the Obligation, § 824. 
 
 CHANGE OF VENUE. 
 Origin, § 325. 
 Garnishment Not Separable from Main Action, § 326. 
 
 an Action Entitling Parties to Change, § 327. 
 Who May Have a Change of Venue, § 328. 
 BRINGING IN CLAIMANTS OP THE GARNISHED PllOPERTY 
 
 AND I'RYING THEIR RIGHTS. (Chap. 15.) 
 General Considerations, §§ 329-331. 
 Origin and Purpose of the Intervening Acts, § 332. 
 Action is Stayed Till Claimant is Interpleaded, § 333. 
 When Claims May be Made, § 334. 
 Who May Suggest that there Are Clnimants, §§ 335-339. 
 Order of Court Interpleading Claimants, § 340. 
 Nature and Sufficiency of the Notice to the Claimant, § 341. 
 Forming the Issue between the Claimant and the Plaintiff, §§■ 
 
 342-346. 
 Trial of the Issue between the Claimant and the Plaintiff, 
 
 §§ 347-349. 
 .Judgment between the Plaintiff and the Claimant, §§ 350-351. 
 
 THE ISSUE BETWEEN THE PLAINTIFF AND THE GAR- 
 NISHEE. (Chap. 16.) 
 Issue— How Formed, §§ 352-356. 
 Specific Allegations— How Par Required, §§ 357-359. 
 When Issue May be Taken on the Answer, §§ 360-362. 
 Nature and Scope of the Issue, § 363. 
 
ANALYTICAL INDEX. 541 
 
 TRIAL OP THE ISSUE BETWEEN PLAINTIFF AND GAR- 
 NISHEE. (Chap. 17.) 
 Time for Trial, §§ 364-366. 
 Manner of Trial, §§ 367-368. 
 What the Plaintiff Must Prove, §§ 369-370. 
 Competency of Evidence and Witnesses, §§ 371-373. 
 The Defense, §§ 374-382. 
 
 THE JUDGMENT. (Chap. 18.) 
 
 Time and Notice of Application for Judgment, §§ 383-385. 
 Judgment by Default, §§ 386-388. 
 
 on the Pleadings, § 389. 
 Setting Aside Judgments, § 390. 
 Nature and Amount of the Judgment, §§ 391-394. 
 The Judgment Record— Form and Substance, §§ 395-396. 
 
 •COSTS. (Chap. 19.) 
 
 Costs in General. § 397. 
 
 When the Garnishee is Charged, § 398. 
 When the Garnishee is Discharged, §§ 399^00. 
 on Appeal, § 401. 
 
 EXECUTION, § 402. 
 
 APPEALS. (Chap. 20.) 
 
 Right to Appeal, §§ 403-405. 
 
 From What Appeal Lies, § 406. 
 
 Effect of Appeal, § 407. 
 
 The Record, § 408. 
 
 The Action of the Appellate Court. § 409. 
 
TOPICAL INDEX. 
 
 [the figures refer to sections ] 
 
 ABANDONED PROPERTY, 
 
 court appointed receiver for, 193, note. 
 
 ABANDONMENT OF GARNISHMENT PROCEEDINGS, 
 
 summoning in the claimant as a garnishee amounts to abandon- 
 ment of first, 333, note. 
 
 levying an attachment on the property amounts to , 381. 
 
 failure to prosecute raises presumption of , 297, 382. 
 
 ABATEMENT, 
 
 of actions against garnishee by plea of garnishment pending, 
 
 196-199. 
 prior garnishment cannot be pleaded in abatement of subsequent 
 
 garnishment, 190. 
 matters vyhich are ground for of fearnishmeut suit, 381. 
 
 ABBREVIATIONS, 
 
 of the names of the parties in the writ, 266. 
 
 ABSENCE, 
 
 of proper person on whom to make service, 273, note. 
 
 ACCEPTANCE, 
 
 of check or order before garnishment necessary to give holder 
 
 better right, 72. 
 to avail against garnishment must be valid under statute of 
 
 frauds, 48, note; 72, note; 377. 
 order without an equitable assignment, 70, 71. 
 
 ACCORD AND SATISFACTION, 
 
 between defendant and garnishee is binding on the plaintiff, 46, 
 note. 
 
 LAW GAKNISH. (543) 
 
544 LAW OF GAENISHMENT. 
 
 [The figures refer to sections.] 
 
 ACCOUNT BOOKS, 
 
 cannot be attached by garnishment, 167, note. 
 
 ACCOUNTING, 
 
 between defendant and garnishee cannot be compelled in aid of 
 garnishment, 154. 
 
 ACCUMULATIONS, 
 
 in garnishee's hands after he is served are not attached by the 
 garnishment, 49. 
 
 ACKNOWLEDGMENTS, 
 
 see "Admissions"; "Estoppel." 
 
 ACQUIESCENCE, 
 see "Waiver." 
 ACTIONS, 
 
 garnishment proceedings are , 3. 
 
 and to maintain federal jurisdiction parties must reside in 
 different states, 3, note, 
 against garnishee by defendant are stayed while the garnish- 
 ment is pending, 199. 
 pending against garnishee at date of garnishment, no defense to 
 garnishment, 143-147. 
 
 defendant must have cause of against garnishee, 154. 
 
 jurisdiction of against defendant essential to support gar- 
 nishment, 224. 
 see, also, "Interpleader," "Suits." 
 
 ACTUAL POSSESSION, 
 
 essential to charge garnishee as custodian, 52, 53. 
 
 ADDITIONAL ANSWERS, 
 by garnishee, 309-311. 
 
 ADJOURNMENT, 
 
 failure to get does not operate as discontinuance of garnish- 
 ment, 382, note. 
 
 ADMINISTRATORS, 
 
 of garnishees not liable, 381. 
 liable as garnishees of heirs, 59. 
 of deceased defendant not liable, 13. 
 
 are officers of court, and as such exempt from garnishment 
 process, 27-35. 
 
TOPICAL INDEX. 546 
 
 [The figures refer to sections.] 
 
 ADMINISTRATOES— Cont'd, 
 
 by statute, liable to garnishment, 31. 
 
 liable to garnishment after estate is administered, 35. 
 
 chancery garnishment, 30. 
 in suits against personally, property of estate not garnish- 
 able, 47, note. 
 
 ADMISSIONS, 
 
 against interest, 372, 373. 
 
 declarations of defendant as in evidence in trial with claim- 
 ant, 349, note, 
 in the garnishee's answer are evidence against him, 289. 
 by garnishee cut off only his own rights, 301. 
 in the answer the only ground for charging garnishee, 181. 
 must be clear and positive, 314. 
 
 ADVANCES, 
 
 by garnishee do not render him liable, 183. 
 
 by mortgagee after garnishment in suit against mortgagor, 176. 
 
 ADVANTAGE, 
 
 of attachment and garnishment compared, 193. 
 of garnishment is in security obtained, 7. 
 
 ADyBRSB CLAIMANTS, 
 see "Claimants." 
 
 AFFIDAVIT TO OBTAIN GARNISHMENT, 247-255. 
 entitling, 247. 
 
 construction of , 247. 
 
 tested by same rules as a complaint, 247. 
 is in nature of a complaint, 247. 
 
 misjoinder of actions in , 248. 
 
 two writs issued on one , 248. 
 
 judgment confined to cause of action stated in , 249. 
 
 proof of swearing to , 253. 
 
 positive and alternative averments, 250. 
 
 who may make , 250. 
 
 before whom sworn to, 250. 
 
 must be positive enough to be foundation (or perjury prosecu- 
 tion, 250, 254. 
 
 facts which must be alleged in . 251. 
 
 need not be alleged in , 252. 
 
 LAW GARNISH. —35 
 
5-t6 LAW OF GARNISHMENT. 
 
 [The figures tefer to sections.] 
 
 AFFIDAVIT TO OBTAIN GAKNISHMKNT— Cont'd, 
 other facts by recital, 253. 
 auieuding, 2i>'S. 
 
 waiving errors In . 253. 
 
 proof of jurisdictional facts aliunde, 253. 
 time of swearing to and filing, 255. 
 recording, 255, note. 
 
 motion to quash proceedings for defects in , 284. 
 
 disproving, 284. 
 
 AFFIDAVITS FOR OTHER PURPOSES, 
 that the garnished property is exempt, 84. 
 incorporated into the garnishee's answer, 303. 
 to obtain continuance of defendant's action till the garnishment 
 
 is disposed of, 199. 
 controverting garnishee's answer, 352-354. 
 
 AGENTS, 
 
 of corporation as its garnishee, 42-43. 
 
 cliargeable as garnishees of principal for goods in their posses- 
 sion, 42^3, 52. 
 
 of a third person liable for goods in his possession belonging to 
 the defendant, 53. 
 
 principal liable as garnishee for goods in the hands of his , 53. 
 
 garnishment of a defense to action by or against principal, 
 
 53, note. 
 
 pi'iucipal garnishable for debts contracted by , 57. 
 
 not chargeable for debts contracted on behalf of his principal, 57. 
 
 property and debts of the principal not garnishable in suits 
 against , 57. 
 
 notice to the principal is notice to . and vice versa, 49, note. 
 
 service of process on to bind principal, 273. 
 
 answer for garnishee made by , 299, 300, 
 
 AGREEMENTS, 
 .src "Contracts." 
 
 AID OF EQUITY, 
 
 not allowed to supplement garnishment, 187. 
 
 ALIENS, 
 
 see "Nonresidents." 
 
TOPICAL INDEX. 547 
 
 [The figures refer to sections.] 
 
 AMEXDMENTS, 
 
 general statute allowing in civil actions, applies to garnish- 
 
 incnt proceedings, 3. 
 of garnishee's answer, 309-311. 
 of garnisliment affidavit, 253. 
 of garnisliment writ, 267. 
 of return of officer upon writ, 279. 
 of pleadings in forming issue between plaintiff and garnishee, 
 
 3.j8. 
 of judgment entry, 396, note, 
 of record in appellate court, 40S. 
 
 A5I1CUS CURIAE, 
 
 may move to have garnishment against a municipal corporation 
 dismissed, 23, note. 
 
 AMOUNT, 
 
 of garnishee's liability must be shown by plaintiff, 300. 
 
 of garnishee's liability immaterial when exceeding plaintiff's 
 
 claim, 369, note, 
 of garnishee's liability limits the judgment against him, 392. 
 of garnishee's liability limited to amount of judgment against 
 , defendant, 392. 
 
 of garnishee's liability when need not be certain, 118-123. 
 
 of demand affecting question of jurisdiction, 235. 
 
 of claimant's demand must be shown by him, 348. 
 
 of plaintiff's security beyond garnishment immaterial, 186. 
 
 due defendant above what is necessary to satisfy the plaintiff 
 
 may be recovered while garnishment Is pending, 195. 
 
 ANCILLARY PROCEEDING, 
 garnishment is , 2. 
 
 ANNUITY, 
 
 garnishable as a debt, 59. 
 
 not yet due not garnishable, 59, 120. 
 
 ANSWER OF GARNISHEE, 
 
 a privileged person dismissed without , 14. • 
 
 whether a pleading or evidence, 287-289. 
 in evidence in trial with claimant, 348, note; 349, nftte. 
 as nn admission against interest, 289; 288, note; 372. 
 in, evidence in trial with plaintiff, 372, 373. 
 
548 LAW OF GAKMSHMEKT. 
 
 [The figures refer to sections.] 
 
 ANSWER OF GARNISHEE— Cont'd, 
 
 refusal to make; wlien justifiable, and when not; effect of, 290- 
 292. 
 
 when to be made, 293-296. 
 
 authority of officer to take , 298, note. 
 
 entitling, etc., 298. 
 
 signing, 298. 
 
 must be under oath unless oath is waived, 298. 
 
 without oath is not evidence, 288, note. 
 
 must be made by garnishee personally and not by his agent or 
 attorney, 299. 
 
 by one for himself and coganiishee, 299. # 
 
 by letter, etc., 299. 
 
 by corporation through proper agent, 300. 
 
 seal of garnishee affixed to, 300, note. 
 
 must be made by proper person knowing the facts, 300. 
 
 what it should state, and how, 301. 
 
 double liability from improper answer, 302, 305. 
 
 may state facts on information and belief, 303. 
 
 cannot be required to make statements on Information, 304. 
 
 presumed to be true, 303, 3] 3. 
 
 may incorporate affidavits, letters, etc., 303. I 
 
 T\ant of knowledge to answer should be stated, 304. 
 
 should always be made and state all facts to protect from future 
 liability, 306. 
 
 manner of procuring further disclosure or excepting to first, 307. 
 
 judgment for insufiiciency of , 307. 
 
 striking answer from files, 307. 
 
 extent of plaintiff's right to examine garnishee, 308. 
 
 amendments to and supplemental answers, 309-311. 
 
 equivocal and doubtful statements construed against garnishee, 
 312. 
 
 language not distorted from meaning, 312. 
 
 taken as a whole and construed together, 312, note. 
 
 conclusions of law stated in ■ , 313. 
 
 when plaintiff is not allowed to dispute or disprove, 313, note; 
 180. 
 
 when disclosure shows prima facie liability, burden on gar- 
 nishee, 315. 
 
 plaintiff cannot dispute , 181. 
 
 must clearly show liability, 314, 
 
TOPICAL INDEX. 549 
 
 [The figures refer to sections.] 
 
 "ANY PERSON," 
 
 as used in the garnishment statutes includes, 12, 14, 16. 
 
 APPEAL, 
 
 must be taken by the party injured by the decision appealed 
 
 from, and no paity can claim rights under appeal by another, 
 
 403, 404. 
 right to appeal statutory only, 405. 
 
 garnishment judgments appealable under genei'al statute, 405. 
 from what judgments appeal lies, 406. 
 the question of right to appeal should be raised by motion to 
 
 dismiss, 406. 
 of garnishment proceedings does not affect main action, 407. 
 of main action suspends garnishment, 407. 
 takes garnishment with it, 407. 
 
 ousts jurisdiction of lower court to make any order, 407. 
 depending on amount involved, 235. 
 
 what constitutes the record on , 408. 
 
 amendmeuts of record on , 408. 
 
 what errors and defects will be considered on ■, 409. 
 
 how case will be disposed of on , 409. 
 
 garnishee must from judgment, against him in subsequent 
 
 garnishment in disregard of first, 192. 
 
 need not from erroneous judgment to protect himself 
 
 from liability to defendant, 215. 
 dismissal of in action by defendant against garnishee en- 
 tered after garnishee is served will not defeat garnishment, 
 
 144, note, 
 must at peril be taken by garnishee charged for demand upon 
 
 which his creditor has recovered judgment. 145, note, 
 from judgment for tort, effect on garnishable nature of demand, 
 
 152. 
 re-examination of garnishee on , 308. 
 
 APPEARANCE, 
 
 unauthorized for garnishee may be stricken, 226. note, 
 in main action of principal defendant after garnishment does 
 not give jurisdiction of garnishment, 231. 
 before garnishment affords support to garnishment, 230. 
 in garnishment by principal defendant cures no errors in gar- 
 nishment or in main action, 232. 
 
550 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 APPEARANCE— Cont'd, 
 
 waives notice of garnishment, 283. 
 by the garnishee; how enforced, 285. 
 in main action for garnishee without authority from him, 28-5. 
 
 what constitutes by garnishee, 285. 
 
 attorney isresumed to act with authority in , 285. 
 
 waives defect in prior proceedings, 286.- 
 
 specially to object to defects to proceedings, 290. 
 
 by garnishee waives delects in process and service, 270. 
 
 not binding on defendant, 271. 
 of claimant; how procured, 341. 
 
 ARGUMENT, 
 
 claimant opens, 348. 
 
 ARGUMENTATIVE PLEADING, 3.57, note. 
 
 ARREST, 
 
 officer chargeable as garnishee tor property taken from person 
 
 of defendant on , 5G. 
 
 ASSENT, 
 
 see "Waiver." 
 
 ASSETS, 
 
 see "Debts"; "Property." 
 
 ASSIGNEE, 
 
 has the same rights against the plaintiff as he would have 
 
 against defendant, 46, note, 
 in insolvency and bankruptcy not garnishable, 27. 
 , as claimant must prove assignment, time, consideration, etc., 348. 
 must furnish garnishee with evidence to prove assignment, 
 
 332. 
 must give notice to garnishee or he will be bound by gar- 
 nishment, 204. 
 may set oft his own claim and disbursements though assignment 
 is void, 37S, note; 77, note, 
 see "Claimants." 
 
 ASSIGNMENTS, 
 
 garnishments do not operate as . 192. 
 
 before gai-nishment are paramount to it, 66. 
 not void, but voidable by defendant, cannot be avoided by gar- 
 nishment, 46, note. 
 
TOPICAL INDEX. 551 
 
 [Tlae figures refer to sections.] 
 
 ASSIGNMENTS— Cont'd, 
 
 notice to garnishee necessary to raake effectual against gar- 
 
 nisliment, 06, note; 67. 
 as security, good as to part of creditors named, 174, note, 
 defeated by garnisliment judgment before notice to garnishes, 
 
 205. 
 not complete till notice to and acceptance by assignee, 08. 
 valid where made, valid everywhere, 81, 06, note. 
 
 partial splitting demands, 69. 
 
 equitable will defeat garnishment, 66. 
 
 orders as, 70-72. 
 what may be assigned, 73, 74. 
 invalid and fraudulent, 75-81. 
 general abating garnishment, 381. 
 
 ASSUMPSIT, 
 
 or debt must lie in favor of defendant in order to charge the 
 garnishee as debtor, 154. 
 
 right to sue in by waiving the torts is personal to defend- 
 ant, and cannot be exercised by garnishing creditor, 150. 
 
 ATTACHMENT, 
 
 garnlsiiment is a mode of , 192. 
 
 creates same lien as , 193. 
 
 priority between garnishment and 188, note. 
 
 property cannot be taken from garnishee by , 194. 
 
 for contempt; proper manner to enforce obedience by garnishee, 
 
 402, note, 
 affords a better remedy than garnishment when unrecorded 
 mortgage is voidable, 75, note. 
 
 ATTESTATION, 
 see "Oath." 
 
 ATTORNEYS, 
 
 may be made garnishees, 36. 
 
 privileged communications to cannot be disclosed by their 
 
 answer as garnishees, 291. 
 
 for defendant proper person on whom to serve notice of garnish- 
 ment, 283. 
 
 lien paramount to garnishment of judgment in getting which 
 fees were earned, 174, note. 
 
562 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 ATTORNEYS— Cont'd, 
 
 presumed to have authority to act 285. 
 for people, as such, not liable to garnishment, 19. 
 in garnishment suit need not be attorney of record for plaintiff 
 In main action, 285, note. 
 
 AUTHORITY. 
 
 ot court, see "Jurisdiction." 
 of agent to answer for garnishee, 300. 
 of attoruej' who appears is presumed, 285. 
 
 B 
 
 BAIL, 
 
 see "Bonds." 
 for appearance; garnishment dissolved on giving, 7, 321. 
 
 BAILEES, 
 
 as to what bailees may be made garnishees, chapter 2. 
 
 see, also, "Garnishee." 
 as to what kind of possession will render one chargeable, 52-56. 
 
 see, also, "Possession." 
 money in hands of to pay a debt of person from whom re- 
 ceived, 57. 
 
 deposited by for another cannot be garnished in suits 
 
 against . 47, 57. 
 
 BANK BILLS, 
 
 current as money, garnishable, 164, note. 
 BANKRUPTCY, 
 
 of defendant after garnishment will not defeat garnishment, 45. 
 
 assignee in is not subject to garnishment, 27. 
 
 BANKS. 
 
 money deposited in by defendant, for which he holds pass 
 
 book, may be garnished, though he would have to present 
 book and make demand before suing. 46, note. 
 BAR, 
 
 recovery in garnishment pleadable in , 218-220. 
 
 is to subsequent action by defendant, 202. 
 
 pending garnishment not pleadable in . 199. 
 
 BEQUESTS, 
 
 ■ may be given free from claims of creditors of beneficiary, 59. 
 
TOPICAL INDEX. 653 
 
 [The figures refer to sections.] 
 
 BILL IN CHANCERY, 
 
 see "Chancery Garnishment"; "Equity"; "Injunction." 
 
 BILL OF EXCEPTIONS, 
 nature and office of, 408. 
 
 BILL OF PARTICULARS, 
 
 cannot be demanded by garnishee of plaintiff, 357, note. 
 
 BILLS AND NOTES, 
 
 see "Choses in Action"; "Negotiable Paper." 
 
 BOARD, 
 
 money due for is earnings, 90. 
 
 BONA FIDES, 
 
 of an assignment by defendant may be tested by garnishment, 
 
 7,5. 
 plaintiff need not allege fraud, 358. 
 
 of judgment or accounting between defendant and garnishee, 46, 
 note. 
 see "Collusion"; "Fraud." 
 
 BOND, 
 
 some statutes authorizing discharge of attached property on 
 include property attached by garnishment, 318. 
 
 statutes allowing dissolution — - should be liberally construed, 
 318. 
 
 can be given only by party authorized by statute, 319. 
 
 right to release on does not exist independent of statute, 319. 
 
 no better security can be required than the statute prescribes, 
 319. 
 
 giving ends proceedings, and they will be dismissed on mo- 
 tion of defendant, 319. 
 
 should in terms comply substantially with statutory require- 
 ments, 320. 
 
 statement of amount of plaintiff's demand is not a limitation of 
 liability, 320, note. 
 
 giving does not waive exemption, 321, note. 
 
 costs to garnishee for answering after giving of , 321, note. 
 
 liability on to deliver to true owner, 321. 
 
 to pay whatever the garnishee might be charged for cannot be 
 be sued on till garnishment is disposed of, 321. 
 
554 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 BOND— Cont'd, 
 
 recitals not limiting condition of , 322. 
 
 conditioned to pay recovery in main action when statvite re- 
 
 quii-ed bond to pay recovery in garnislmient, 322. 
 construed, 322. 
 no defense to action on that surety has had no day in court 
 
 in action in which bond was given, 323. 
 
 giving is no waiver of lien on proi)erty bonded, 17.j, note; 
 
 declaration in suit on — -, 324, note. 
 
 judgment and execution on , 324. 
 
 payment of judgment in sarnishment a complete defense, though 
 
 garnishee took bond of indemnity, 210, note, 
 payment before plaintiff gives statutory bond to defendant uo 
 
 protection to garnishee, 20'). note, 
 action by garnishing creditor, as assignee, on by claimant to 
 
 garnishee, 206, note. 
 
 BOOK ACCOUNTS, 
 
 mortgage on . description, 174, note. 
 
 how garnishable, 167. 
 
 BROKERS, 
 
 are not laborers entitled to exemption, 91. 
 
 BURDEN OP PROOF, 
 
 measure of on plaintiff charging fraud. 79, note. 
 
 to show garnishee's liability is on plaintiff, 314, 369. 
 
 when answer shows prima facie liability is on garnishee, 
 
 315. 
 
 to show claim rests on claimant, 348. 
 
 when set-off was acquired is on garnishee, 380. 
 
 cast on garnishee by suspicious conduct, 80. 
 
 to show that mortgaged property was fairly sold is on mort- 
 gagee garnishee selling the same after he was served, 173. 
 
 C 
 CALL, 
 
 see "Corporations." ' 
 
 CAPACITY, 
 
 of garnishee rendering him exempt from process, chapter 2. 
 
TOPICAL INDEX. 555 
 
 [Tlie figures refer to sections.] 
 
 CARRIERS, 
 
 when property in bands of may be attaclied by garnishing 
 
 them, 37. 
 
 CASE, ACTION OP, 
 
 against person taking garnished property, 193. 
 
 CASHIER, 
 
 of corporation as its garnishee, 42. 43. 
 
 CAUSE OF ACTION, 
 
 at law must exist in favor of defendant to warrant charging 
 
 garnishee, 154. 
 plaintiff's allegations in contesting garnishee's answer must 
 
 state , 357. 
 
 CERTAINTY, 
 
 in amount of garnishee's liability unnecessary, 123. 
 unliquidated demands not garnishable, 148, 149. 
 
 absence of as to amount of piortgagee's claim not fatal to 
 
 garnishment against him, 174 
 required in garnishee's answer, 312. 
 
 CERTIORARI, 
 
 an appropriate writ on which to bring up garnishment for re- 
 view, 406, note. 
 
 may be used to correct record on appeal, 408. 
 
 cannot be employed by defendant to review garnishment after 
 garnishee has appealed, 403, note. 
 CHANCERY GARNISHMENT, 
 
 whether statutory garnishment is a proceeding at law or in 
 equity, 153-154. 
 
 when statutory garnishment cannot be sustained the same bene- 
 fits may often be obtained by a bill in chancery, 24; 25, note; 
 30; 164, note; 187. 
 
 CHANGE OP VENUE, 
 
 origin of . 325. 
 
 garnishment and main action not to be separated by , 326. 
 
 follows main action on , 326. 
 
 an action entitling parties to , 327. 
 
 when it may be demanded, 328. 
 
 claimant entitled to , 328. 
 
 in garnishment does not affect main action, 327. 
 
556 LAW OF GABNISHMENT. 
 
 [The figures refer to sections.] 
 
 CHATTEL MORTGAGE, 
 
 defendant's property subject to may be attached by gar- 
 nishment, 169-176. 
 
 CHATTELS, 
 defined, 51. 
 
 CHECKS. 
 
 for a whole fund operate as an equitable assignment of it, 70. 
 facts may show equitable assignment in other cases, 70. 
 drawn on commercial account at bank pass title to payee, 71. 
 stopping payment after garnishment, 71, note; 137a. 
 unaccepted draft gives purchaser no rights against garnishing 
 
 creditor, 71, note; 72. 
 parol acceptance, 72, note, 
 delivery, 72, note, 
 being given to pay debt, debtor not garnishable, 137a. 
 
 CHOSES IN ACTION, 
 
 not subject to common-law processes, 163. 
 
 not within terms of statute telling what property may be at- 
 tached by garnishment, 164. 
 
 not attachable by garnishment against possessor, 164. 
 
 rule not applicable when debtor under chose in action is the 
 garnishee, 164. 
 
 bank bills current as money garnishable, 164, note. 
 
 subject to garnishment when liable to execution, 165. 
 
 immaterial to whom payable, 166. 
 
 right to collect not a . 167. 
 
 judgment records not garnishable, 107. 
 
 account books not garnishable, 167. 
 
 essentials of — - to be garnishable, 168. 
 
 CITIES, 
 
 are privileged from garnishment, 18. 
 
 CLAIMANTS, 
 
 when plaintiff should implead , 329. 
 
 when may prosecute suit of his own, 330. 
 
 when garnishee may maintain interpleader in equity against 
 
 claimant and garnishing creditor, 331. 
 interpleader in equity cannot be maintained against garnishee 
 
 and by plalntifC, 831. 
 
TOPICAL INDEX. 
 
 [The figures refer to sections.] 
 
 557 
 
 CLAIMANTS— Cont'd, 
 
 cannot enjoin prosecution of garnishment, 330. 
 
 origin and objects of statutory interpleader, 332. 
 
 garnishment stayed till claimant interpleaded, 333. 
 
 whose duty to bring in claimants, 333, note. 
 
 out of state, 333, note. 
 
 not bound by orders made before he became a party, 833. 
 
 not appearing, judgment should be rendered against garnishee, 
 
 333. 
 
 when may intervene, 334. 
 
 who may proclaim that there are , 335-339. 
 
 order of court interpleading, 340. 
 
 nature of notice to . 341. 
 
 have affirmative, and file first pleading, 342. 
 
 must rely solely on their own rights, 343. 
 
 cannot assign errors for irregularities in proceedings, 344. 
 
 not a party to issue against garnishee, 374. 
 
 garnishee not a party to issue between and plaintiff, 345. 
 
 plaintiff's reply to , 346. 
 
 issue tried before trial against garnishee, 347. 
 
 right to trial to jury, 348. 
 
 burden of proof, 348. 
 
 has right to open and close, 348. 
 
 must be candid and show clear right, 348, note. 
 
 must have day in court, etc., 349. 
 
 is bound by result of action, 350, 204. 
 
 can have no judgment except for costs, 351. 
 
 must litigate his rights with garnishee in another action, 351. 
 
 adverse cannot litigate, 351, note. 
 
 judgment for plaintiff against , 350. 
 
 garnishee bound to bring claims to knowledge of court and deal 
 
 fairly with , 206. ' 
 
 what is timely notice of to garnishee, 206, 207. 
 
 sufficiency of notice of to bind garnishee, 67. 
 
 must furnish garnishee evidence to prove claim, 204, note, 
 appeals by . when jurisdiction depends on amount involved, 
 
 235, notes. 
 
 CLERKS. 
 
 in commercial establishments are laborers, 91. 
 
558 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 CLERKS—Cont'd, 
 
 of courts not subject to garnishment, 27-35. 
 of counties not liable to garnishment, 19. 
 
 of courts have the duty to enter up records of proceedings, 396, 
 note, 
 failing to name garnishees in writ will not defeat garnish- 
 ment, 266, note, 
 failing to insert attachment clause in writ will not defeat gar- 
 nishment, 265, note, 
 should sign garnishment writ, 258. 
 
 CODEBTORS, 
 
 see ".Tolnt Debtors." 
 
 coijLateral attack:, 
 
 essentials of garnishment judgment to constitute a defense on 
 , 213-217. 
 
 COLLATERAL SECURITY, 
 
 being held by creditor does noi prevent him employing garnish- 
 ment to collect. 185. 
 
 COLLUSION, 
 
 between garnishee and defendant rendering garnishee liable, 52, 
 note. 
 
 between plaintiff and garnishee which will render judgment no 
 defense to garnishee, 217. 
 
 between plaintiff and defendant no defense to garnishee, 375, 
 note. 
 
 between officer arresting criminal and creditor of criminal de- 
 siring to garnish, 50. 
 
 COLORABLE POSSESSION. 
 
 renders garnishee liable, 52, note. 
 
 COMMENCEMENT OF SUIT, 
 
 what constitutes to support garnishment, 224. 
 
 by defendant against garnishee before garnishment not defeat 
 garnishment, 143. 
 
 in different courts, jurisdiction depends upon priority, 145, note. 
 
 does not give creditor vested rights in property in hands of gar- 
 nishee, 11. 
 
 COMMERCIAL TRAVELERS, 
 
 not laborers entitled to exemption, 91. 
 
TOPICAL INDEX. 559 
 
 ■ [The figures refer to sections.] 
 
 COinilSSIONER, 
 , to take evidence cannot try claimant's rights, 349. 
 
 to take garnisliee's answer slioiilci gi\e notice of time to apiiear 
 to answer, 293, note. 
 
 COMMON CARRIERS, 
 
 when property held by cannot be garnished, 37. 
 
 COMMON I.AW, 
 
 remedies should be preferred to garnishment when available, 10. 
 garnishment is not a proceeding at , G, 10. 
 
 co:mpelling appearance, I'so. 
 
 COMPETENCY, 
 
 see ''Evidence"; "Service." 
 
 COMPUTATION, 
 of time, 268, note. 
 
 CONCEALMENT, 
 see "Collusion." 
 
 CONCLUSIONS OF LAW, 
 
 in garnishee's answer immaterial when facts appear, 313. 
 
 CONCURRENT GARNISHMENTS, 
 effect upon each other, 188-191. 
 
 CONDITIONAL .TUDGMENT, 
 against garnishee, 303. 
 
 CONDITIONAL LIABILITY, 
 
 garnishee cannot be charged on , 118-125. 
 
 CONFESSION, 
 
 garnishee chargeable only on of liability, 181. 
 
 CONFESSION AND AVOIDANCE, 
 
 being pleaded by garnishee, the burden of proof is on him, 31.j. 
 
 CONFLICT OF LAWS, 
 
 what law determines whether note made in one state and pay- 
 able in another may be garnished, 128. 
 what state determines whether notice is essential to complete 
 
 transfer, 66, note, 
 exemption laws have no force out of state, 100. 
 
560 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 CONFLICT OF LAWS— Cont'd, 
 
 injunction will restrain violation of exemption laws by garnish- 
 ment in another state, 103. 
 garnishment in another state as a defense, 104-107, 202, note. 
 
 CONFLICTING GARNISHMENTS, 
 
 priority and mode of disposition, 188-191. 
 
 the court first acquiring jurisdiction retains it, 201, note. 
 
 CONSIDERATION, 
 
 claimant must prove, 348, note. 
 
 failure of a defense to garnishment, 376. 
 
 CONSOLIDATION, 
 
 of several garnishments to preserve rights, 190. note. 
 
 CONSTABLES, 
 
 not liable to garnishment for property held olHcially, 27-35. 
 who may serve garnishment summons, 268, note. 
 
 CONSTITUTIONAL LAW, 
 
 statute may provide for absolute judgment against garnishee for 
 default; this is not without due process of law, 387, note. 
 
 manner of service on corporations is exclusively in discretion of 
 legislature, 17. 
 
 obligations of contract not impaired by garnishment, 11. 
 
 laws prohibiting sale of claims for purpose of collecting same out 
 of exempt wages and prescribing criminal penalty constitu- 
 tional, 102, note. 
 
 each state must give full faith and credit to decisions in other 
 states, 107. 
 
 regulating interstate commerce, garnishment of property to be 
 delivered out of state, 37, note. 
 
 CONSTRUCTION. 
 
 to be given to dissolution bond. 322. 
 
 to be given to garnishee's answer, 312-315. 
 
 to be given to garnishment statutes, 8-11, 20. 
 
 to be given to garnishment judgment set up as defense, 213-214. 
 
 remedy cannot be extended by , 13, 12. 
 
 CONSTRUCTIVE POSSESSION, 
 
 not sufficient to render garnishee liable, 52. 
 
TOPICAL INDEX. 561 
 
 [Tie figures refer to sections.] 
 
 CONTEMPT OF COURT, 
 
 garnishee punished for in not paying, 402, note; 391. 
 
 persons garnishing otHcers of court will not be proceeded against 
 
 for , 14. 
 
 refusal to answer puts garnishee in , 292, note. 
 
 CONTINGENT DEBTS, 
 
 garnishee not chargeable for debt depending on contingency, 63, 
 118-125. 
 
 'contingent set-off, 
 
 held by garnishee will not defeat garnishment, 174. 
 
 CONTINUANCE, 
 
 failure to enter does not operate as discontinuance of garnish- 
 ment, 382, note. 
 
 pending garnishment ground for in suit on garnished de- 
 mand, 197. 
 
 pending garnishment ground for of subsequent garnishment, 
 
 190. 
 
 CONTRACT, 
 
 of garnishee not interfered with by garnishment, and bis rights 
 
 not affected, 61, 48. 
 of garnishee to deliyer at particular place, 60. 
 to pay insurance or rebuild, 62. 
 to pay when work is performed, 63. 
 made after he is summoned, 65, 183. 
 within statute of frauds, 48,'note; 377. 
 to pay in anything other than money, 115-117. 
 to pay in future, 126. 
 
 privity of with defendant not n-.x-essary to charge garnishee, 
 
 55, 58. 
 marie after garnishment cannot defeat or prejudice it, 65. 
 
 obligation of not impaired by garnishment, 11. 
 
 CONTROL, 
 
 rather than possession, determines garnishee's liability, 52. 
 CONVERSION, 
 
 renders garnishee liable to money judgment, 393, note. 
 
 whether depositing public money contrary to law is , 47, note. 
 
 premature seizure of property under mortgage is not . 174, 
 
 note. 
 
 LAW QAUNISH.— 36 
 
562 LAW OF GARNISHMENT. 
 
 [The figures refer to sectious.] 
 
 CORPORATIONS,, 
 
 chartered in several states domestic in all, 17. 
 
 private domestic as garnishees subject to process, IC. 
 
 cannot be charged as garnishee on summons served before in- 
 corporation, 16. 
 
 private foreign subject to process as garnishees, 17. 
 
 under United States statutes, when foreign, 17. 
 
 municipal whether liable as garnishees, 18. 
 
 officers of municipal not liable as such, 19. 
 
 reasons for exempting municipal . 21. 
 
 not exempting nnmicipal , 22. 
 
 whether officers of municipality can waive privilege, 2.3. 
 
 bill in chancery eflecting the objects of garnishment against mu- 
 nicipality. 24. 
 
 judgments against numicipalities not enforceable by garnish- 
 ment, 13. 
 
 judgment against civil enforceable by garnishment, 12. 
 
 doing business in state, 17, note. 
 
 oflieers and agents of as its garnishees, 42, 43. 
 
 have no existence out of state creating them, 17. 
 
 stock in not liable to common-law process, 108. 
 
 transferable only on books of company, 110. 
 
 garnishable. 111. 
 
 foreign not garnishable, 109, 165, note. 
 
 as.sessments of installments of unpaid stock garnishable after 
 call, 112. 
 
 property of gai-nishable in hands of stockholders, 112. note. 
 
 unpaid installments garnishable irrespective of call, 114. 
 not garnishable before call, 113. 
 
 how named in summons, 260. 
 
 service of process on , 27':t. 
 
 who may answer for as garnishee, 300. 
 
 whether to answer under seal, 300, note, 
 
 dissolution of garnishee abates garnishment, 381 
 
 appointing receiver for garnishee does not abate gai'nishment, 
 
 381, note. 
 
 COSTS, 
 
 see "Expenses"; "Fees." 
 may be allowed trustee under general assignment, though assign- 
 ment is void, 77, note. 
 
TOPICAL INDEX. 663 
 
 [The ligures refer to sections.] 
 
 COSTS— Cont'd, 
 
 judgment for is the only recovery that can be had against a 
 
 claimant, 350. 
 may be allowed claimant, though not provided for by statute, 
 351, note. 
 
 claimant may be charged , 351. 
 
 against garnishee on trial of claimant's rights, 351, note, 
 are a part of the judgment, 397. 
 
 which garnishee may charge against his creditor, 397. 
 available as set-off, .379, note. 
 
 order allowing after proceedings ended is void, 397. 
 
 judgment for . when appealable, 406, 397. 
 
 discretionary, 397. 
 
 what matters may be included in , 397. 
 
 when garnishee is chaiged, 398. 
 
 is discharged without contest, 399. 
 
 is discharged upon trial, 400. 
 
 is accused of fraud, 400. 
 upon appeal, 401. 
 
 COUNSEL FEES, 
 see "Costs." 
 
 COUNTERCLAIMS, 
 
 see "Recoupment"; "Set-Off." 
 which garnishee may Mrge, 378-380. 
 
 COUNTIES, 
 
 not liable to garnishment process, IS. 
 
 COURTS, 
 
 see "Jurisdiction." 
 are bound to sustain legislative remedy if possible, 9. 
 in which action or judgment acainst garnishee is, and no other, 
 can charge him as garnishee, 145. 
 
 officers of . how far subject to garnishment, 27-35. 
 
 are bound to follow plain statute, 20. 
 
 cannot impose limitations or exemption statutes, 93. 
 
 which may entertain garnishment, 223. 
 
 CREDITOR'S BILL, 
 
 may be used at same time with garnishment, 185. 
 garnishment a substitute for , 7. 
 
564 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 CREDITOR'S BILL— Cont'd, 
 
 cannot be made effectual by , 187. 
 
 by , see "Chancery Garnishment." 
 
 may be maintained without exhausting remedy by garnishment, 
 185. 
 
 CREDITS, 
 
 defined, 164, note. 
 
 demands not payable in money arc , 117. 
 
 what may be attached by garnishment, see "Debts." 
 
 CRIMINAL PROSECUTION, 
 
 as a cover by which to get possession of property, 56. 
 
 CRIMINALS, 
 
 property taken from may be garnished in hands of officer, 56. 
 
 CROPS, 
 
 judgment against garnishee a lien on , 396, note. 
 
 CUSTODIA LEGIS, 
 
 garnishment places property in , 194. 
 
 property in not garnishable, 27-35. 
 
 CUSTODY, 
 
 of garnished property, 193. 
 payment into court, 317. 
 
 CUSTOM OP LONDON, 
 
 no part of common law, 6, note. 
 
 )3 
 
 DAMAGES, 
 
 rights of action for not garnishable, 148-152. 
 
 for breach of contract a proper counterclaim in favor of gar- 
 nishee, 64, 378-380. 
 for injury to exempt property are exempt, 98. 
 
 DATES, 
 
 see "Time." 
 of return of writ, 264. 
 of service of writ, 267. 
 of answer erroneous, 298, note. 
 
TOPICAL INDEX. 665 
 
 [The figures refer to sections.] 
 
 DAY IN COURT, 
 
 defendant must have , 233. 
 
 claimant must have . 333, 349. 
 
 garnishee must have , 367. 
 
 DIJATH. 
 
 of principal defendant before judgment in main action abates 
 
 garnishment, 381. 
 of member of partnership does not prevent garnishment of firm 
 
 debtors for its liabilities, 160. 
 of principal defendant after judgment not cause abatement, 3S1. 
 of garnishee before answer abates garnishment, death afterwards 
 
 does not, 381. 
 
 DEBT, ACTION OF. 
 
 may be maintained on garnishment judgment, 391, note. 
 
 DEBTORS, 
 
 fraudulent, 75-81. 
 
 who are , see "Debts." 
 
 who may be made garnishees, chapter 2. 
 
 of deceased person not gamishable, 13. 
 
 of municipal corporations cannot be garnished, 13. 
 
 joint and several , 261-263, 216, 156-162. 
 
 DEBTS, 
 
 defined, 51, 57. 
 
 unpaid installments of stock are for which stockholder may 
 
 be charged as garnishee, 112-114. 
 are obligations payable in money; other liabilities, whether gar- 
 
 nishable as , 115-117. 
 
 payable at all events; contingent liability not gamishable, 
 118-125. 
 for which defendant holds security are gamishable, 127. 
 not payable till future day are gamishable, 126. 
 equitable demands, whether debts and gamishable, 153, 154. 
 
 unliquidated damages and rights of action for torts are not , 
 
 148-152. 
 for which garnishee has given his note, 128-137. 
 
 interest on gamishable, 138-142. 
 
 belonging to part of defendants, 155. 
 to defendant and others, 156-162. 
 
5GG LAW OP GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 DEBTS— CoDt'd, 
 
 exempt from garnishment, chapter 4. 
 
 legacies are , 59. 
 
 promises to pay debts of another, 57. 
 collected by agent extinguished, 57. 
 
 privity of contract necessary to , 5S. 
 
 nature of , determined on facts at time of service, 49. 
 
 which are attached under former garnishment, ISS. 
 
 DECEASED PERSONS, 
 
 judgments against not enforceable by garnishment, 13. 
 
 DECEIT, 
 
 by garnishee which will render him doubly liable, 217. 
 on plaintifC, estoppel from, 372, note. 
 
 DECISIONS, 
 
 in foreign court, when conclusive, 214. 
 DECLARATION, 
 
 filing as commencement of suit, 22.5. 
 
 in an action on dissolution bond, 324, note. 
 
 of claimant against plaintifC, 342. 
 
 garnishment affidavit as . 353, 247, 248. 
 
 in what states plaintiff in garnishment should file , 3-"'>2-354. 
 
 in-egularities in . waived, 355. 
 
 what allegations required in , certainty, amendments, 357- 
 
 359. 
 see "Admissions." 
 
 DECREES, 
 
 in chancery, whether enforceable by garnishment, 153. 
 
 DE FACTO, 
 
 governmental officers not garnlshable, 26, note. 
 
 DEFAULT, 
 
 for refusal to answer, 292. 
 for defective answer, 307. 
 
 in not answering, what amounts to , 293, 294. 
 
 answer may be made at any time before entry of , 290. 
 
 after , by permission of court, 296. 
 
 of plaintiff in taking answer, 297. 
 
 for failure to prosecute, 382, note; 383; 363. 
 
 entei'ing and setting aside judgments by , 386. 
 
TOPICAL INDEX. 667 
 
 [The figures refer to sections.] 
 
 DEFATJLT— Cont'd, 
 
 equitable relief from , 386, note. 
 
 excusing , 386, note. 
 
 nature of judgment by , 387. 
 
 scire facias on , 388, cliapter 14. 
 
 judgment by fully protective, 215. 
 
 against claimant does not prevent garnishee defending claimant's 
 
 rights, 350, note, 
 of claimant entitles plaintiff to judgment, 333, 350. 
 
 DEFECTS, 
 
 how cured, see "Amendments"; "Waiver." 
 in process taken advantage of, 267. 
 in pleadings demurred to, etc., 346, 359. 
 in answer objected to, 307. 
 specifically stated, 346, note. 
 
 DEFENDANT IN MAIN ACTION, 
 
 a party to garnishment under statutes requiring notice to him, 
 
 283. 
 no party to garnishment usually, 374. 
 cannot defeat garnishment by cortract or ratification of prior 
 
 one, 65. 
 as a witness in garnishment suit, 372, 373. 
 right to claim exemption, 83, 84. 
 whether he may suggest claimants, 338. 
 in collusion with plaintiff, 370, note. 
 
 plaintiff's rights are measured by rights of , 44-48. 
 
 cannot defeat garnishment by subsequent conduct, 45. 
 
 notice of garnishment to , 280-283. 
 
 may release garnished property on bond, 318-324. 
 
 cannot prosecute suit while garnishment is pending, 105-200, 
 
 jurisdiction over , 224-233. 
 
 cannot be made garnishee, 40. 
 
 husband or wife of not garnishable, 41. 
 
 when may appeal from judgment in garnishment, 403. 
 
 DEFENSE, 
 
 of garnishee is entirely the same as if sued by defendant, 44^8. 
 
 what may be made by garnishee In garnishment suit, 374- 
 
 382. 
 that exempt wages have been garnished in another state, 104-107. 
 
568 LAW OF GARNISHMENT. 
 
 [Tbe figures refer to sections.] 
 
 DEFENSE— Cont'd, 
 
 wlio may take part in , 374. 
 
 former garnishment as a , chapter 10. 
 
 jiendiug garnishment in suit against plaintiff as , chapter 9. 
 
 personal privilege as , chapter 2. 
 
 pending garnishment in suit by another creditor as , 188-191. 
 
 contract rights against defendant as , 60-65. 
 
 of main action by garnishee, 225, 226. 
 
 payment under garnishment as a , 202-217. 
 
 of exemption, 83-85. 
 
 of claimant's rights by garnishee, 350, note; 301; 302. 
 
 to action on dissolution bond, 323. 
 
 confined to pleadings, 371. 
 
 DEFICIENCIES, 
 
 see "Defects." 
 DEFINITIONS. 
 
 of "garnishment," 1, 192. 
 
 of "property," "money," "effects," etc., as used in statute, 51. 
 
 of "householders," 88. 
 
 of "wages," "salary," and "earnings," 89, 90. 
 
 of "jurisdiction," 221. 
 
 of "family," 88. 
 
 of "laborers," 91. 
 DEFRAUD. 
 
 see "Fraud." 
 DELAY, 
 
 in prosecuting garnishment which -.vill entitle garnishee to dis- 
 charge, 297, 360-302, 365, 382, 383. 
 DELIVERY, 
 
 place of being fixed by contract, affects liability to garuish- 
 
 ment, 60. 
 
 of check or draft essential to make it operative, 72, note. 
 DELIVERY BOND. 
 
 see "Bond." 
 
 DEJIAND, 
 
 not necessary to maintain garnishment, though defendant could 
 not sue without it, 46. 
 see "Debt" 
 
TOPICAL INDEX. 569 
 
 [The figures refer to sections.] 
 
 Demurrer, 
 
 to claimant's complaint, 346. 
 
 to plaintiff's declaration or complaint against the garnishee, 359. 
 
 to the evidence. 389. 
 
 DENIAL, 
 
 by garnishee of liability, when conclusive on plaintiff, 181, 314, 
 note, 
 sometimes held conclusive on claimant, 348, note, 
 of liability not sufficient answer, but facts should be stated, 301. 
 immaterial when disclosed facts show liability, 313. 
 
 how plaintiff take issue on , 352-354. 
 
 in answer not conclusive on plaintiff, 363. 
 
 DEPOSITARY, 
 
 as garnishee, 52-56. 
 
 DEPOSITION, 
 
 of defendant may be introduced against garnishee, 372, note. 
 
 DEPUTY, 
 
 not authorized to serve garnishment process, 268, note, 
 cannot serve on another deputy, 268, note. 
 
 DESCRIPTION, 
 
 in writ of property sought, 257. 
 garnishees, 260-263. 
 plaintiff and defendant, 266. 
 
 DEVISEE. 
 
 charged with legacy may be garnished for it, 59. 
 
 DILIGENCE. 
 
 required of officer in serving process, 268, note. 
 
 showing of to set aside default, 386. 
 
 required of plaintiff in prosecuting his action, 297, 360-362, 365, 
 382, 383. 
 
 DISBURSEMENTS, 
 
 see "Costs"; "Fees"; "Expenses." 
 under void assignment are allowed to assignee as garnishee, 
 76, note. 
 
 DISBURSING OFFICERS. 
 
 of government not chargeable as garnishees, 26. 
 
670 LAW OF GARNISHMENT. 
 
 [Tile figures refer to sections.] 
 
 DISCHARGE, 
 
 of garnisliee's liability by paying garnishment judgment, 202. 
 
 unless garnishment will operate as . garnishee must be 
 
 discharged, 60, 48. 
 of garnishee upon payment of money into court, 317. 
 of gai-nishee's liability to claimant, 206, 207. 
 of garnishee for plaintiff's failure to prosecute suit, 383, 382, 
 297, 360, 362, 365. 
 for plaintiff's failure to bring in claimants, 333. 
 
 DISCLOSURE, 
 see "Answer." 
 
 DISCONTINUANCE, 
 
 matters in abatement, 381. 
 
 delays causing , 382, 333. 
 
 failure to appear causing , 297. 
 
 as to one, and judgment against other joint garnishees, 369. 
 
 DISCOVERY, 
 
 garnishment a means of in place of equity bill, 7, note. 
 
 of claimants in time, 207. 
 
 plaintiff's right to by interrogatories, 308. 
 
 see "Answer." 
 
 DISCRETION, , 
 
 conferred on trustee relieves him from liability as garnishee, 59. 
 
 judgments depending on not reviewed by higher courts, 386, 
 
 397. 
 DISSOLUTION, 
 
 of garnishment for irregularities, 284. 
 
 by giving bond, 318-324. 
 of corporation garnishee as abatement of garnishment^ 881. 
 of attachment on which garnishment is based, 381. 
 
 DISTRIBUTION, 
 
 of property among sevei'al attaching and garnishing creditors, 
 188-191. 
 
 DOCKETING GARNISHMENT, 
 in trial calendar, 367, note. 
 
 DOMICILE. 
 
 of garnishee as affecting right to charge him, 15, 17. 
 of defendant as affecting right to charge garnishee, 242. 
 
TOPICAL INDEX. 671 
 
 [The figures refer to sections.] 
 
 DOUBLE LIABILITY, 
 
 garnishee subject to onlj' for his own fault, 48. 
 
 DOUBTFUL STATEMENTS, 
 
 construed against garnishee mailing, 312. 
 
 against claimants making, 34S, note, 
 not sufBcient on which to cliarge garnishee, 314. 
 
 DRAFTS, 
 
 as assignments of fund drawn on, 70-72. 
 
 unaccepted not assignment, 71, note. 
 
 as payment of garnished debt, 137a. 
 
 DUTY, 
 
 of court to sustain remedy designed by legislature, 9. 
 of the garnishee, 183, 184. 
 
 E 
 
 EFFECT, 
 
 of garnishment as an attachment, chapter 8. 
 as a stay of other suits, chapter 0. 
 upon subsequent garnishments, etc., chapter 7. 
 upon exempt property held by garnishee, 95. 
 of appeals, 407. 
 
 EFFECTS, 
 defined, 51. 
 
 see "Property." 
 
 ENTITLING. 
 
 garnishment judgment, 393. 
 
 affidavit, 247. 
 
 summons, 259. 
 garnishee's answer, 298. 
 
 ENTRY, 
 
 of record of garnishment Judgment, 395, 396. 
 
 EQUITABLE ASSIGNMENT. 
 
 orders, drafts, and the like, operate as . 70. 
 
 defeats garnishment, 66. 
 
 EQUITABLE CLAIMS, 
 
 may be set up by claimants, 349, note; 66. 
 
 set off by garnishee in some states, 379, note. 
 
572 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 EQUITABLE CLAIMS— Cont'd, 
 
 whether such liabiUties as may be attached by garnishment, 
 153, 154. 
 
 EQUITABLE CONSIDERATIONS, 
 do not support garnishment, 8. 
 contra, 9. 
 
 EQUITABLE GARNISHMENT, 
 
 a bill in equity often effectual when garnishment could not be 
 maintained, 24; 2.j, note; 30; 164, note; 187. 
 
 EQUITABLE ISSUES. 
 
 not involved in trial of fraud in conveyance to garnishee, 75, 
 
 note, 
 whether triable in garnisihment, 15.^^, 154. 
 
 EQUITY, 
 
 see "Chancery Garnishment"; "Creditor's Bill"; "Injunc- 
 tion"; "Interpleader." 
 cannot be invoked to supply defects in garnishment remedy, 187. 
 will not interpose because no remedy by garnishment exists, 58, 
 
 note, 
 will restrain garnishee from putting property beyond reach, 187, 
 
 193. 
 will interpose to protect diligent garnishee from double liability, 
 
 187, 331. 
 will aid in collecting garnishment judgment, 187, note. 
 
 whether garnishment is a proceeding in , 153, 1.54. 
 
 will not interpose to save garnishee from double liability from 
 
 his own negligence, 191; 38t), note; 199, note, 
 will not interpose to aid creditors to property held in fraud for 
 
 which holder could bo charged as garnishee, 75, note, 
 will interpose to prevent use of garnishment or attachment to 
 
 defraud creditors, 189. 
 
 EQUIVOCATION, 
 
 in garnishee's answer, effect of, 312. 
 
 in claimant's replies to questions, 34r'. note. 
 
 ERRORS, 
 
 in proceedings, when and how cured, see "Waiver"; "Amend- 
 ments." 
 
TOPICAL INDEX. 573 
 
 [The figures refer to sections.] 
 
 ERRORS— Cont'd, 
 
 in principal suit cannot be taken advantage of by garnishee, 226, 
 
 375. 
 which will be considered by appellate court, 409. 
 assignment of, 409. 
 
 ESTATES OP DECEASED PERSONS, 
 
 judgments against not enforceable by garnishment, 13. 
 
 ESTOPPEL. 
 
 of creditor to employ garnishment, 12. 
 
 of garnishee by statements upon which plaintiff relied in begin- 
 ning suit, 372, note, 
 and defendant by putting garnishee in colorable possession, 
 52, note, 
 of plaintiff in garnishment by allowing garnishee to sell under 
 
 mortgage, 173, note, 
 of garnishee to deny liability admitted in answer, 302, 371, note. 
 
 EVASION, 
 
 on part of garnishee in answer, 312; 310, note. 
 
 claimant in examination. 348, note, 
 amending answer showing , 310. 
 
 EVIDENCE, 
 
 see, also, "Burden of Proof." 
 
 garnishee's answer as , 287-2S9; 349, note; 372; 373. 
 
 admissibility and competency of in trial between plaintiff 
 
 and claimant, 848, note, 
 in trial between plaintiff and garnishee, 371-373. 
 
 proper to prove payment under garnishment. 220. 
 
 to prove service of process, 277. 
 
 records of main action conclusive as , 227-229. 
 
 to prove fraud, 79; 349, note; 372, note. 
 
 EXAMINATION, 
 
 of proceedings in main action not required of garnishee before 
 trial, 375, note. 
 
 of garnishee personally, plaintiff's right to , 299. 
 
 extent of plaintiff's right to , 308. 
 
 abuses of avoided by garnishee, 290-292. 
 
 of records in main action without putting in evidence, 870. 
 of garnishee as to former statements inconsistent, 181. 
 
674 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 EXCEPTIONS, 
 
 bill of . 408. 
 
 necessary to save erroi-s, 408. 
 to sufficiency of answer, 307. 
 
 EXCUSING, 
 default, 386. 
 
 EXECUTION, 
 
 used to collect garnishment judgment, 391, 402. 
 
 stayed till garnishee's liability becomes payable, 126. 
 
 stayed in action against garnishee till garnishment is settled, 199, 
 note. 
 
 on judgment against garnishee in favor of his creditor stayed 
 till garnishment is disposed of. 144, 199, note. 
 
 recalled when judgment has been garnished. 144. 
 
 whether garnishment judgment musi. be paid under , 209, 210. 
 
 money collected on whether garnishable in hands of officer, 
 
 ■27, 35, 28. 
 
 stayed against administrator as garnishee, to enable him to as- 
 certain what property estate has, 31. 
 
 sheriff not chargeable for execution in his hands, 27, note. 
 
 may be employed to reach property while garnishment is being 
 used to reach other property, 185. 
 
 EXECUTORS, 
 
 whether privileged from garnishment, 27, 28, 31, 35. 
 
 suits against not aided by garnishment, 13. 
 
 in suits against personally, property of estate cannot be gar- 
 nished, 47. 
 
 how named in garnishment summons, 260, 
 
 as garnishees cannot set off claims due them as individuals, and 
 vice versa, 379, note; 378, note. 
 
 EXEMPTION, 
 
 of certain property from liability to creditors by garnishment or 
 otherwise, chapter 4. 
 persons from liability to be made garnishees, chapter 2. 
 what property is exempt, 82. 
 a privilege to be claimed, 84. 
 manner of making claim, 84. 
 an absolute right, 83. 
 second claim on appeal, 84, note. 
 
TOPICAL INDEX. 575 
 
 [The figures refer to sections.] 
 
 EXEMPTION— Cont'd, 
 
 garnisbee's duty to claim , 85. 
 
 defendant may defend , 85. 
 
 garnisliee cannot claim . 84, note. 
 
 waived, 86, 84, note. 
 
 not waived lay giving bond, 321, note. 
 
 wages, personal earnings, etc , art- wliat, 89. 
 
 householders, etc., defined, 8.S. 
 
 earnings and speculation, 90. 
 
 laborers, etc., defined, 91. 
 
 not affected by residence, 92. 
 
 can be had only when necessary for support, 93, note. 
 
 courts cannot limit . 93. 
 
 from debts for necessaries or labor, 94. 
 
 cannot be affected by garnishment, 93. 
 
 of proceeds of property voluntarily sold, 90, 97. 
 
 of property converted in invitum, 98. 
 of earnings, etc., after payment, 99. 
 laws have no force out ot state, 100, 101. 
 remedy for frauds upon, 102. 
 conflict of laws; suits in different states, 104-107. 
 
 EXPENSES. 
 
 trustees under assignment ent'tled to retain out of property, 
 
 though assignment is invalid, 77, note, 
 see "Costs." 
 
 EXPERT TESTIMONY, 
 
 to explain meaning of plain writing, 70, note. 
 
 EXPIRATION, 
 
 of term of office renders officer liable to garnishment for money 
 held officially, 35,. note. 
 
 EXPLICIT, 
 
 answers should be made by garnishee, 301-312. 
 statement of defects demurred to, S46, note. 
 
 EXPRESS COMPANIES, 
 as garnishees, 37. 
 
 EXTENSION, 
 
 of garnishment remedy cann 3t be obtained by construction, 10. 
 
676 LAW OF GARNISHMENT. 
 
 [The figures r?fer to sections.] 
 
 F 
 
 FACTORIZING, 
 
 garnishment known as , 1. 
 
 FACTS, 
 
 stated in answer, and not conclusions of law, govern, 313. 
 which must be sworn to in affidavit, 251, 252. 
 
 must be stated in affidavit of exemption, 84, notes. 
 
 FAILURE, 
 
 of plaintiff to appear to take garnishee's answer, 297, note. 
 
 to prosecute action, 360, 862, 365, 382, 383. 
 of garnishee to answer, 295. 296, 386. 
 
 FAILURE OF CONSIDERATION, 
 is a defense to garnishment, 376. 
 
 FALSE, 
 
 representations upon which plaintiff relied in garnishing, 372, 
 note. 
 
 FAMILY, 
 defined, 88. 
 
 FEDERAL COURTS, 
 
 entertain garnishment under state laws, 223, note. , 
 
 allow garnishment affidavit to be amended, though not allowable 
 
 in state courts, 253, note, 
 do not entertain garnishment unless jurisdiction of main action 
 
 has been obtained by personal service on defendant within the 
 
 district, 276. 
 
 FEES, 
 
 as a witness are paid garnishee, 178. 
 
 for mileage and attendance cannot be demanded by garnishee 
 after appearing, as a condition to his making answer, 290, note, 
 effect of failure to pay or tender fees to garnishee at time of 
 serving summons, 269, note, 
 see "Costs"; "Expenses." 
 
 FEME COVERT, 
 
 may be made a garnishee, 38. 
 
 FILES, 
 
 must be accounted for when absent from proper office, 370. 
 
TOPICAL INDEX. 577 
 
 [The figui-es refer to sections.] 
 
 FILES— Cont'd, 
 
 inadmissible in evidence unlesss coming from proper custody or 
 marked, 370, note. 
 
 FILING, 
 
 garnishment affidavit, 255. 
 
 FORECLOSURE, 
 
 of mortgage by garnishee after he is served, 173, note. 
 
 FOREIGN CORPORATIONS, 
 may be gamislied, 17. 
 
 corporations chartered In two states are in neither, 17. 
 
 under United States statutes are not in states where they 
 
 do business, 17. 
 may be served in any manner legislature prescribes, 17. 
 service of garnishment on , 273. 
 
 FORM, 
 
 of garnishment judgment, 3tl5, 30G. 
 
 statutory of garnishment summons not mandatory, 2G5, note. 
 
 of notice to garnishee of assignments immaterial, li7, note. 
 
 FRAUD, 
 
 see "Collusion"; "Statute of Frauds." 
 a question of fact or law, 79. 
 badges of, 80. 
 never presumed, 217. 
 when conclusively presumed, 81. 
 of which the garnishing creditor can complain, 7G. 
 need not be alleged to chaige garnishee for, 357. 
 against defendant not to render garnishee chargeable, 76. 
 against other creditors not a ground for charging garnishee, 76, 
 
 note, 
 proceeds of property taken in, 70. 
 may be tried by garnishment. 73. 
 
 In efforts to show great latitude should be allowed, 79. 
 
 cannot be charged by one who has affirmed sale by attempting to 
 
 charge garnishee as debtor, '^5, note, 
 by garnishee on defendant rendering garnishment no defense, 
 
 217. 
 FRAUDULENT GARNISHMENTS AND ATTACHMENTS,, 
 remedies against , 189. 
 
 LAW GAKKISH. — 37 
 
578 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 FRAUDULENT TRANSFER, 
 
 garnishee chargeable for proceeds of , 76. 
 
 of note will not prevent charging garnishee for it, 137. 
 
 garnishee chargeable for , though defendant could not 
 
 sue, 7G. 
 not chargeable for property out of his control, but held by 
 
 him by , 52. 
 
 judgments for property held by , 393, note. 
 
 FUTURE EXPECTATIONS, 
 
 when may be assigned, 73, 74. 
 
 G 
 
 GARNISH, 
 defined, 1. 
 
 GARNISHEE, 
 
 as a witness, a party, and a receiver, 178-181. 
 
 who may be made , chapter 2. 
 
 position, rights, and duties in geneial, chapter 0. 
 
 liability of — determined, chapter 3. 
 
 what he may be charged for, chapter 5. 
 
 under no duty to invest garnished funds, 140. 
 
 not a party to Issue between plaintiff and claimant, 345. 
 
 answer of , chapter 13. 
 
 see Table of Contents. 
 
 GARNISHMENT, 
 
 a mode of attachment, 192. 
 a proceeding in rem, 5. 
 ancillary to main action. 2. 
 an action against garnishee, 3. 
 a statutory remedy, 6. 
 
 general object of , 7. 
 
 who may employ . 12. 
 
 dismissed when an abuse of process, 224, note. 
 In what cases allowed, 13. 
 
 judgment in as a defense to future liability, 202-217, 
 
 as a remedy is being more extensive, 1. 
 
 a harsh remedy, 8. 
 
 persons privileged from , will be dismissed on motion, 14. 
 
TOPICAL INDEX. 579 
 
 [The figures refer to sections.] 
 
 GARNISHMENT— Cont'd, 
 
 a remedy additional to common-law remedies, and not in place 
 
 of them, 185. 
 may be used several times concurrently in same suit, 185. 
 against one person cannot be dismissed because plaintiiT has 
 
 ample security by other proceedings, 186. 
 does not operate as payment till garnishee pays, 186. 
 . creates a lien on garnished property, 19li. 
 as a stay to actions against garnishee, chapter 9. 
 GIFT, 
 
 donee of gift causa mortis charged in suit against estate, 76, note, 
 of exempt property or wages, 96. 
 
 GOODS, 
 
 defined, 51. 
 
 GOVERNMENT, 
 
 cannot be garnished, 25, 26. 
 may garnish itself, 26, note, 
 may employ garnishment, 12. 
 
 GROUND^ FOR LIABILITY, 
 
 are for debts and property; the two considered, 50. 
 see "Debts"; "Property." 
 
 GUARANTY, 
 
 of debt without knowledge or acceptance of creditor does not 
 make guarantor liable, 57. 
 
 GUARDIANS, 
 
 not liable to garnishment, 27. 
 GUARDIANSHIP, 
 
 judgments against persons under not enforceable by gar- 
 nishment, 13, 27, note. 
 
 H 
 
 HEIRS, 
 
 interest of reached by garnishing executor or administrator, 
 
 27, 28, 30, 31, 35, 59. 
 
 Interest of in debts due ancestor is garnishable, 59. 
 
 HISTORY, 
 
 of garnishment iu America, 6, note. 
 
580 LAW OF GARNISHMENT. 
 
 [The figures rpfer to sections.] 
 
 HOMESTEAD EXEMPTION, 
 
 extends to proceeds of laomestead converted in invitum, 98. 
 of voluntary sale for purpose of purchasing elsewhere, y7. 
 presumption from lapse of time after sale, 97. 
 use a part of proceeds for other purpose, 97, note, 
 securities taken or. sale exempt, 97, note, 
 computation of time in sale under execution, 98, note. 
 
 HOUSEHOLDERS, 
 defined, 88. 
 
 HUSBAND AND WIFE, 
 
 whether liable to sarnishment in suits against each other, 41. 
 examination of as witnesses against each other, 41, 291. 
 
 1 
 IDEM SONANS, 
 
 names not , 395, note. 
 
 IDENTITY, 
 
 or" property garnished with proceeds of labor, 09. 
 IDIOTS, 
 
 liable to be made garnishees, 38. 
 ILLEGALITY, 
 
 of garnishee's conduct cannot be set up by him as a defense, 
 48, note. 
 
 IMPEACHMENT, 
 
 Of garnishee by plaintiff, 372, note; iSl. 
 IMPRISONMENT, 
 
 of garnishee for contempt in not paying as ordered. 301. 
 
 officer garnished for goods taken from prisoner during . 56. 
 
 IN INVITUM, 
 
 garnishment is , 5. 
 
 IN PERSONAM, 
 
 garnishment is . 5. note. 
 
 INCUMBERED PROPERTY. 
 
 may be garnished, 1G9-176. 
 INDEBTEDNESS, 
 
 see "Debts." 
 
TOPICAL INDEX. 581 
 
 [The figures refer to sections.] 
 
 INDEMNITY, 
 
 cannot be taken away by sarnisliment, G2. 
 
 being taken by gaiuisliee does not impair protective force of pay- 
 ment, 210, note, 
 to garnishee necessary to chnrge him as m.'Uier of a note owned 
 
 by defendant, 135. 
 not sufficient to charge garnishee on note before maturity, 135. 
 see "Bond"; "Waiver." 
 
 INDEPENDENT PROMISES, 
 
 garnishee chargeable on , regardless of nonperformance by 
 
 defendant, 124. 
 
 INFANT, 
 
 may be made garnishee, 38. 
 
 being member of defendant firm and suit discontinued as to 
 
 him, debtors of firm may be charged as garnishees, Itn. 
 .as special constable cannot serve garnishment summons, 268, 
 
 note. 
 
 INFORMATION AND BELIEF, 
 
 answer founded on , 3015. 
 
 affidavit on , 254. 
 
 IN.TUNCTION, 
 
 against defendant not available to supplement gainishmeut. 187, 
 note. 
 
 against garnishee's debtors to restrain them from paying him de- 
 nied, 187, note. 
 
 against garnishee to restrain him from disposing of property al- 
 lowed, 193. 
 
 against plaintifC to restrain collection from garnishee of judg- 
 ment to which garnishee has acquired defense, 187, note; 391, 
 note. 
 
 against defendant to restrain enforcement of judgment attached 
 by garnishment, 187, note. 
 
 as a substitute for garnishment, 25, note; 24; ,30. 
 
 may be used to restrain suits in other states to avoid exemption 
 laws, 103. 
 
 to restrain defendant from transferring note for which plain- 
 tiff seeks to charge garnishee, 136. 
 
682 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 IN REli, 
 
 garnisliinent a proceeding , 5. 
 
 INSANE PERSONS, 
 
 may be made garnishees, 34. 
 
 INSANITY, 
 
 is an excuse for failing to answer garnishment, 3S0, note. 
 
 INSOLVENCY, 
 
 of garnishee is no defense to garnishment, 123, 392, note. 
 
 assignee in as garnishee, 27, 77. 
 
 proceedings after garnishment do not defeat it, 4.j. 
 
 INSURANCE, 
 
 payable to mortgagee as his interest may appear, 47, note; 174, 
 
 note, 
 company's right to rebuild or pay loss not defeated by gar- 
 nishment, t>2. 
 company's liability after loss and before adjustment not con- 
 tingent, 123, note, 
 contra, 119. 
 after loss and before adjustment not garnishable, 140. 
 upon exempt property exempt, 98. 
 
 INTEREST, 
 
 on proceeds of property held by garnishee in fraud of defend- 
 ant's creditors, 70. note. 
 
 on debt while garnishment prevents payment, 138. 
 
 avoided by payment into court, 138. 
 
 not recovered if garnishee is ready to pay, 138. 
 
 recovered when garnishee profits, or delays or becomes litigant, 
 139. 
 
 not stopped by debtoi- garnishing himself, 139. 
 
 when charged as damages, 140. 
 
 plaintiff can recover only when defendant could. 141. 
 
 defendant cannot recover after garnishment what plaintiff could 
 not take by it. 142 
 
 recovered by defendant when garnishment was void, 142. 
 
 is stayed only on nmonnt necessary to satisfy plaintiff, 142. 
 
 INTERPLEADER, BILL OP, 
 
 does not lie in favor of garnishee against plaintiff and claimant 
 against whom judgment has been rendered, 204, note. 
 
TOPICAL INDEX. ■'JSS 
 
 [The figures refer to sections.] 
 
 INTERPLEADER, BILL OF— Cont'd, 
 
 does not He in favor of garnisliee against consecutive garnisliers 
 when judgment has been rendered in favor of both, 191. 
 even though the principal suits are against different persons 
 202, note, 
 does not lie in favor of garnishee negligently allowing judgment 
 
 to plaintiff and defendant, 199, note 3. 
 may be maintained by garnishee against garnishing creditor 
 and claimant, 331. 
 
 proceedings under intervening acts are in nature of , 331. 
 
 does not lie in favor of garnisbre against plaintitf and defend- 
 ant who had judgment again.st him, 145, note. 
 
 garnishment resembles . 178. 
 
 by defendant, 187. 
 
 INTERPLEADING CLAIMANTS (chapter 15), 
 
 adverse cannot litigate rights in garnishment suit, 351, note. 
 
 can have no judgment except for co.sts. 351. 
 can be charged only for costs, 350. 
 
 judgment as to . 350, 351. 
 
 must have same opportunities af> other litigants to defend rights, 
 
 349. 
 may waive opportunities, 349, note, 
 may show equitable rights, 349, note. 
 have burden of proof, 348. 
 must be candid. 348, note, 
 open and close, 348. 
 entitled to jury trial, 34S. 
 
 evidence for and against , 348. 349. 
 
 file first pleading, 342. 
 
 plaintiff's reply to , 34(). 
 
 waiver of defects in claimant's pleading. 340. 342. note, 
 time of trial, 347. 
 
 nature of notice to appear served on . 340. 
 
 who may cause to be made parties. 335-339. 
 
 order of court making parties, 340. 
 
 when claims may bo suggested, 334. 
 
 being nonresidents and not parties, 333, note; 341, note. 
 
 action stayed to bring in , 33-"-. 
 
 proceedings before intervention not binding on , 333. 
 
584 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 INTERPLEADING CLAIMANTS— Cont'd, 
 origin and purpose of statutes, 332. 
 cannot supersede garnishment by suit of his own, 330. 
 may prosecute suit of liis own unless interpleaded, but not after- 
 wards, 330. 
 issue taken on answer before bringing In claimant, 329. 
 
 INTERROGATORIES, 
 
 which garnishee need not answer , 291. 
 
 extent of plaintiff's right to propound , 308. 
 
 plaintiff's right to propound , and aslj answers orally, 299. 
 
 effect of improper refusal to answer . 292. 
 
 for more full answer is plaintiff's privilege, which he may omit, 
 
 307. 
 to be filed before garnishee can be put in default, 293. 
 
 INTERSTATE COMMERCE, 
 
 not regulated by garnishment of goods to be shipped out of 
 the state, 37, note. 
 
 INTERVENER, 
 
 see "Interpleading Claimants." 
 
 INVESTMENT, 
 
 garnishee under no duty to make of funds. 140. 
 
 IRREGULARITIES, 
 
 see "Waiver"; "Amendment." 
 
 ISSUE, 
 
 between plaintiff and claimant, 342-340. 
 
 nature of , 343, 344. 
 
 formation of . 342. 
 
 waiving formation of , 342, note. 
 
 garnishee not party to , 34.5. 
 
 between plaintiff and garnishee, ;!r>2-3U3. 
 how formed, 352-354. 
 irregularities waived, 3.j5. 
 
 notice of taking , 356. 
 
 how specific allegations required, 357, 358. 
 taking issue in reasonable time, 360. 
 after time limited. 861. 
 after judgment rendered, 362. 
 
TOPICAL INDEX. 5^5 
 
 [The ligures refer to sections.] ' 
 
 ISSUE— Cont'd, 
 
 nature and scope of , 3G3. 
 
 trial of . chapter 17. 
 
 see "Summons." 
 
 J 
 
 JAILERS, 
 
 may be charged as garnishees for property taken from pris- 
 oners, 56. 
 
 JOINT CREDITORS, 
 
 being partners, have no individual interest which can be gar- 
 nished in suits against any of them, 150-161. 
 not being partners, interest of anv may be garnished, 102. 
 
 JOINT DEBTORS, ETC., 
 
 as garnishees, must all be named in summons, 201, 202. 
 payment of judgment against one as garnishee no protection to 
 
 them jointly, 216. 
 as garnishees, should all be served. 272. 
 when to answer for each other, 299. 
 answer of one evidence for the other, 373. noti'. 
 
 JOINT DEPENDANTS. 
 
 debtors of either may be charged as garnishees, 155. 
 
 JOINT GARNISHEES, 
 
 chargeable only for joint liability, 2G.3. 
 
 when chargeable individually for individual liability, 203, note. 
 
 JOINT JUDGMENT, 
 
 against defendant and garnishee improper, 395, note, 
 against garnishees summoned severally, 305, note. 
 
 JUDGE AT CHAMBERS, 
 
 cannot try garnishment, 3G7. 
 
 JUDGES, 
 
 not garnishable for property held officially, 27. 
 
 JUDGMENT. 
 
 which may be enforced by garnishment, 13. 
 
 between garnishee and defendant binding between plaintiff and 
 
 garnishee in absence of fraud, 46, note; 48, note, 
 obtained by fraud or collusion, 349, note. 
 
586 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 JUDGMENT AS TO CLAIMANTS, 
 when against claimants, 350. 
 natui'e of judgment against claimants, S-jO. 
 
 plaintiff cannot recover anything but costs from claimants, 350. 
 claimant not appearing not liaMe for costs, 350. note, 
 against claimant does not entitle plaintiff to judgment against 
 
 the garnishee, 350. 
 in favor of claimant, nature of, 351 
 for costs against plaintiff, 351. 
 in favor of claimant on appeal, 351. 
 for costs against garnishee not allowed, 351, note. 
 
 no judgment against garnishee on , 351. 
 
 no judgment between adverse claimants on , ,351, note. 
 
 JUDGMENT DEBTS, 
 
 are such demands as may be attached by garnishment, 143. 144. 
 and garnishment must be in same court, to authorize charging 
 
 judgment debtor, 145. 
 payment imder garnishment in state other than where judgment 
 was rendered, 147. 
 
 JUDGMENT IN GARNISHMENT, 
 is only disposition of case, 382. 
 discharging garnishee asked for at any time. 3,S3. 
 
 notice of motion for , 883. 
 
 against garnishee not rendered before judgment in main action, 
 
 38C-388. 
 on pleadings, 389. 
 setting aside, 390, 380 
 not final in some states, 391. 
 limited in amount by liability of defendant and garnishee, etc., 
 
 392. 
 for refusal to answer, 292. 
 for debts not payable in money, 11(>. 
 for default in answering, 293-29(>. 
 for insufficient answer, 307. 
 for property belonging to defendant, ;J'.I3. 
 for unmatured debts, 126. 
 
 for liability stated in garnishment affidavit, 260-263. 50. 
 recorded in name of plaintiff against garnishee, 395. 
 failure to record separate from judgment in main action not 
 
 fatal, 395. 
 
TOPICAL :kdex. 587 
 
 [The figures refer to sections.] 
 
 JUDGMENT IN GARNISHMENT— C'onfcl, 
 time of entering up record, 39G. 
 
 recite fact of judgment against principal defendant, etc., 390. 
 inserting recitals nunc pro turn, 396, note. 
 In a junior proceeding is no deter.se to prior one, 191. 
 record should sliow what garnishee is charged for, 390. 
 essentials of . to be a valid defense, 213-217. 
 
 JUDGMENT IN MAIN ACTION, 
 
 need not be proved on trial of garnishment, 370. 
 
 ■when alleged in taking issue proof held necessary, 370. 
 
 not to be questioned by garnishee except to Jurisdiction, 224-22i). 
 
 payment of is a defense to garnishment, 374, 375, 381. 
 
 becoming dormant is a defense to garnishment, 375. 
 garnishee need not examine, 37.'3, note. 
 
 not a necessary part of I'ecord on appeal of garnishment, 408, 
 note. 
 
 JURAT, 
 
 see "Oath"; "Affidavit." 
 
 JURISDICTION, 
 
 conflict of , 145. 201. 
 
 depends on compliance with statute 0, 238, 2.jl. 271. 
 essential to make garnishment n protection to garnishee. 213. 
 must appear upon record offered as defense, 213. 
 defined, 221. 
 
 appellate courts consider questions of , at any stage. 409. 
 
 depending on authority of court to entertain proceedings of this 
 
 kind. 223. 
 dependent on jurisdiction of action against defendant, 224-2;!3. 
 
 236. 
 to try fraudulent nature of assignment is not confined to court 
 
 entertaining Insolvency proceedings. 75, note. 
 
 whether judgment recitals of are conclusive, 227-229. 
 
 affected by general appearance in main action by defendant, 
 230, 231. 
 by appearance in garnishment by principal defendant, 232. 
 acquired by substituted service, 233, 275 
 dependent on amount involved, 235. 
 
 on garnishee's residence, 237, 15, 17. 
 
 on location of property sought to be garnished, 239, 240. 
 
588 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 JURISDICTION— Cont'd, 
 
 on residence of defendant, 242. 
 
 on situs of debts owing by gi'rnisliee, 243-24 G. 
 
 garnisliee bound to question , 220. 
 
 cannot be conferred by garnishee waiving absence of required 
 matters, 271, 280. 
 
 JURY, 
 
 special questions to, 3()i). 
 
 JURY TRIAL, 
 
 claimant entitled to, 348. 
 garnishee entitled to, 3(J8. 
 
 JUS DISPONENDI, 
 
 not sufficient to charge garnishee as custodian, 52. 
 
 JUSTICE OF THE PEACE, 
 
 issue garnishments returnable to other courts in some states, 
 
 230, note, 
 not liable to be made garnishees for money held as such, 27. 
 
 KEEPERS OF JAILS, 
 see "Jailei's." 
 
 KNOWLEDGE, 
 
 by garnishee that there are claimants will render garnishment 
 no protection against them unless, 200, 207, 07. 
 that his debt is transferred no part of assignment, 60. 
 that summons has been issued against him immaterial and 
 
 of no effect till writ is served, 183, 209, note, 
 that person named in the writ ic-' his creditor, 200. 
 of what property plaintiff seeKS to reach. 2."i7, 40. 
 by garnishee's agents that writ has been served. 49. note, 
 must be possessed by person answering (or corporate garnishee, 
 
 300. 
 must be possessed by person who s^■s ears to garnishment affida- 
 vit, 250. 
 
TOPICAL INDEX. 589 
 
 [The figures refer to sections.] 
 
 LABORERS, 
 defined, 91. 
 
 LACHES, 
 
 of garnishee rendering bim subject to double liability, 144, note; 
 191, 192. 
 see, also, "Negligence"; "Diligence." 
 
 LAND, 
 
 cannot be garnished, 177. 
 
 garnishee questioned concerning his titles to , 177, 201. 
 
 LAW, 
 
 see "Conflict of Laws." 
 
 whether garnishment is a proceeding at , 153, 154. 
 
 of place governs exemption, 100. 
 
 which governs negotiability of paper, 128. 
 
 LAWYERS, 
 
 see "Attorneys." 
 
 LEGACIES, 
 
 are garnishable demands. ."!). 
 
 may be placed beyond reach of creditors, 59. 
 
 LEGAL PROCEEDINGS, 
 
 by defendant against garnishee affecting his liability, 143-147. 
 stayed by garnishment, 195-201. 
 
 LEGISLATURE, 
 
 remedy designed by must be preserved, 0. 
 
 LETTERS, ETC., 
 
 may be made part of garnishee's answer, 303. 
 
 LEVY, 
 
 garnishment Is a . 192. 
 
 LIABILITY OF GARNISHEE, 
 
 how determined, chapter 3. 
 
 LIEN, 
 
 garnishment creates a on property in garnishee's posses- 
 sion, 193. 
 property subject to may be garnished, 109-170. 
 
590 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 LIEN— Cont'd, 
 
 priority of by garnishment, etc., 188. 
 
 on structure for building which garnished debt accrued, 331. 
 
 cannot lie defeated by garnishment, 109-176, 61. -i- 
 
 persons having may employ garnishment, 185. 
 
 LIMITATIONS, 
 
 of amount of recovery against garnishee, .392. 
 
 statute of may be set up by garnishee as a defense, 376. 
 
 of rule exempting court offleers from garnishment, 32. 
 
 LIS PENDENS, 
 
 notice by does not apply to garnishment of note debts, 137. 
 
 LOCKED DEPOSITS, 
 garnishable, 54. 
 
 LUNATICS, 
 
 may be made garnishees. 38. 
 
 ]M 
 
 MAIN ACTION, 
 
 see "Defendant in Main Action." 
 necessary to support garnishment, 224-233, 23G. 
 
 garnishee's right to urge errors in , 225, 226. 
 
 garnishee's duty to examine, 376, note. 
 
 judgment in ■ must precede judgment against garnishee, 385. 
 
 should be recited in garnishment judgment. 390. 
 
 MANDAMUS, 
 
 lies to set aside erroneous, oppressive orders, from which ap- 
 peal does not lie, 400. 
 
 MARRIED WOMEN, 
 
 may be made garnishees, 88. 
 
 MARSHALING SECURITIES 
 
 for the benefit of tlie garnishing creditor, 174. 
 
 MASTER IN CHANCERY, 
 
 not liable to garnishment, 27. 
 
 MEASURE, 
 
 of garnishee's liability is his liability to defendant. 44-47. 
 
TOPICAL INDEX. 591 
 
 [The figures refer to sections.] 
 
 MECHANICS' LIENS, 
 
 see "Lien." 
 
 MILEAGE, 
 see "Pees." 
 
 MINISTERIAL OFFICEUS, 
 
 of court noi. liable to garni.sliment for piopeity lield officially, 
 27-35. 
 
 MISJOINDER OP ACTIONS, 
 
 though trover and assumpsit cannot be united in one action at 
 common law, the garnishment statutes contemplate such join- 
 der, 348. 
 
 MISJOINDER OF PARTIES, 
 
 as garnishees cured hy nol. pros., SW. 
 MISNOMER, 
 
 of parties in garnishment slimmous, 2U0. 
 
 MONEY, 
 
 In custodia legis not gai'nishable, 27. 
 
 debts not payable in garnishable, llu-117. 
 
 MORTGAGE, 
 
 property subject to may be garnished, 169-176. 
 
 MORTGAGEE, 
 
 not garnishable for property not in his actual control, 'j2. , 
 
 MOTION, 
 
 to discharge garnishee on ground of privilege, 14. 
 
 to continue garnishment till prior garnishment is settled, 190. 
 
 suit till defendant is relieved from garnishment in suit 
 against plaintiff, 197, 199. ' 
 
 on account of such garnishment in another state, 201, note, 
 to quash writ for defects, 267. 
 
 return cured by officer on hi.s own , 279. 
 
 to dismiss garnishment for irregularit'es, 284. 
 
 to set aside judgment constitutes general appearance, 285. 
 
 to amend answer, 309-311. 
 
 proceedings which court will dismiss of its own , 331. 
 
 by claimant to be allowed to appear, 335. 
 
 by others that claimant be impleaded 336-339. 
 
 by plaintiff to be allowed to sue garnishee, '^'A. 
 
692 LAW OF GARNISHMENT. 
 
 [Tlie figures refer to sections.] 
 
 MOTION— Cont'd, 
 
 to dismiss contest of answer for defects, 359. 
 
 taking issue on answer after for judgment, 302. 
 
 for judgment on the pleadings, or to direct a verdict, 3S9. 
 
 garnishment may be brought to trial on of either party, 306. 
 
 for judgment, when in order, 383. 
 
 MUNICIPAL CORPORATIONS, 
 
 judgments against can be enforced by garnishment, 13. 
 cannot be made garnishees, 18 
 
 exemption of . reasons pro and con. 21, 22. 
 
 may by consent be charged as garnishees, 23. 
 chancery garnishment against , 'Ji. 
 
 MUNICIPAL OFFICERS, 
 
 exempt from garnishment, 19. 
 
 N 
 NAME, 
 
 of principal defendant must b<> correctly stated in writ, 260. 
 
 middle essential, 266, note. 
 
 of plaintiff not essential to valid writ, 260, note. 
 
 of garnishee being omitted from writ does not avoid it, 266, 
 note. 
 
 of corporation as garnishee stated in wr't, 2(i0. 
 
 of executors as garnishees, 200. 
 
 of all persons liable should be inserted in writ of garnishment, 
 261-263. 
 
 idem sonans, 395, note. 
 NATIONAL GOVERNMENT, 
 
 cannot be garnished, 2.j. 
 NATURE, 
 
 of garnishment, chapter 1. 
 NECESSARIES,- 
 
 as used in exemption laws, meaning- of, 94. 
 NE EXEAT, 
 
 against garnishee, 193, note. 
 NEGLIGENCE, 
 
 in garnishee no more excusable than in any other party. 380. 
 
TOPICAL IKDEX. 593 
 
 [The figures leier to scetious.] 
 
 NEGLIGENCE— Confd, 
 
 presumption of must be rebutted before default set aside, 
 
 386. 
 
 NEGOTIABLE INSTRUMENTS, 
 
 extent to whicli debts evidenced by — — are garnishable, 128-1:37. 
 by what law negotiability determined 128. 
 in possession of maker, 130. 
 rendered garnisliabie by statute, 131. 
 
 former law as to in Maryland and Missouri. 132. 
 
 rights of owner against creditor of payee recovering from maker, 
 
 132, note. 
 In circulation render debt exempt from garnishment unless 
 
 overdue, 133, note; 134. 
 not garnishable by bond being given. 135. 
 
 injunction against transfer of . 130. 
 
 colorable indorsements of , 137. 
 
 lis pendens inapplicable to , 137. 
 
 see "Choses in Action." 
 
 NOL. PROS., 
 
 may be entered as to onf of sundry joint garnishees, and judg- 
 ment entered against the others, 3G9. 
 
 NONJOINDER, 
 
 of proper persons as garnishees renders judgment no protection, 
 
 216. 
 will defeat garnishment, 201, 202. 
 must be pleaded in abatement, 201 207. 
 
 NONRESIDENT, 
 
 may employ garnishment against nonresident, 12. 
 whether privileged from liabil'ty lu garnishment, 15. 
 entitled to benetit of exemption statutes, 02. 
 claimant, 333. note; 341. 
 
 NOTICE, 
 
 see "Knowledge." 
 , of garnishment to principal defrndant. "80-283. 
 to claimants to interplead. 341 
 to garnishee of taking issue on his answer, 3.j0. 
 of trial, 306. 
 of special defense, 371. 
 
 i>.\w GAitNisir, — 38 
 
594 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 NOTICE— Cont'd, 
 
 of motion for judgment, 3S54. 
 
 special to garnisliee of wliat property plaintiff seeks to 
 
 reach by garnishment, 49, 257. 
 to garnisliee of assignment by defendant, 67, 200. 
 
 what constitutes , 67. 
 
 no part of assignment, 66 
 
 to appear and answer served after service of writ, 293. 
 
 of transfer of note after maturity before garnishment, 134. 
 
 NOVATION, 
 
 agreement to pay debt of another, or taking money to pay an- 
 other not assenting to agreement, is not , 57. 
 
 promise by garnishee to pay to plaintiff so as to have proceed- 
 ings dismissed, 188, note. 
 
 o 
 
 OATH, 
 
 answer must be under, 298. 
 
 essential to traverse of garnishee's answer. 3.j4, note. 
 
 answer without not evidence, 288, note. 
 
 OBJECT, 
 
 of garnishment statutes, 7. 
 
 0B.1ECTI0NS. 
 
 must be specifically stated in demurrer. 340, note, 
 to sufliciency of answer, 307. 
 to answering certain questions asked. 290-292. 
 see "Waiver." 
 
 OFFICER, 
 
 of court not subject to garnishment, 27. 
 of municipal corporation not garnishable. 10. 
 of government not garnishable, 26. 
 of corporation who may answer for it, 300. 
 ou whom writ may be served, 273. 
 
 return of service by , 277-279. 
 
 who may serve garnishment 268. note. 
 
 neglect of; liability for, 268, note; 26c, note. 
 
 bound to inform defendant of his exemption rights, 84, note. 
 
 of prison in collusion with plaintiff in making arrest, 50. 
 
TOPICAL INDEX. 
 [The figures refer *o sections.] 
 
 09& 
 
 OFFICER— Cont'd, 
 
 of defendant corporation as garnishee, 42^.3. 
 
 authority of to talce answer nf garnishee is the writ, not 
 
 direction of attorney, 298, note. 
 OMISSION, 
 
 see "Amendment"; "Waiver." 
 from writ of time for answering, 294. 
 
 ONUS PROBANDI. 
 
 see "Burden of Proof" 
 
 OPINION EVIDENCE, 
 
 inadmissible to explain plain writing, 70. note. 
 
 OPTION, 
 
 to pay loss or rebuild cannot be cut off by garnishment, 62. 
 
 ORAL PLEADING, 
 
 whether valid by consent when statute requires writing, 3r>5. 
 
 ORDERS, 
 
 as assignments of fund drawn on, 70-72. 
 
 of distribution of estate, executors and administrators garnish- 
 able before by statute, 31. 
 
 ORDERS OF COURT, 
 
 from which appeal does not lie, 400. 
 
 to officer to pay over money renders officer liable to garnish- 
 ment, 33. 
 that plaintifl: may sue garnishee on his answer, 354. 
 
 o 
 
 PAROL EVIDENCE. 
 
 to vary writing, 70, note. 
 
 PARTICULARS, 
 
 garnishee not entitled to bill of, 357. 
 
 PARTIES, 
 
 to issue between plaintiff and garnishee, 374. 
 claimant and plaintiff, 345 
 
 how far defendant and claimant are to garnishment, 211- 
 
 212, 374. 
 sureties on restitution bond not , 204, note. 
 
596 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 PARTIES— Cont'd, 
 
 garnisliees in different proceedings in same suit not , 204, 
 
 note. 
 
 PARTNER, 
 
 as garnishee of copartner, 154. 
 
 PARTNERSHIP, 
 
 as garnishee summoned by firm name, 201, note, 
 members should all be named in garnishment writ, 261. 
 should plead abatement tor nonjoinder, 261. 
 not protected by judgment against one as garnishee, 261. 
 summoned as garnishee charged for individual liability of mem- 
 bers, 263. 
 as garnishee, all members should be served with process, 272. 
 cannot set off claims due its members, 379, note. 
 
 contra, 370, note, 
 may answer by one member, if plamtiff does not object, 299. 
 
 property of . how far liable to garnishment in suits against 
 
 members individually, l.")6-161. 
 
 in suits against , debtors of members may be charged as 
 
 garnishees, 155. 
 
 PART PERFORM.\NCE, 
 
 by defendant of his contract renders garnishee liable, when. 
 63. 64. 
 
 PASS BOOK, 
 
 of bank not negotiable instrument, 133. note. 
 
 need not be produced to garnish savings deposit. 46, note. 
 
 PAYMENT, 
 
 satisfaction of garnishment is pro tanto. 202. 
 
 by garnishee's contract 1o be made at paiticular place, 00. 
 
 of garnishment judgment, whether necessary to make judgment 
 a defense to an action by garnishee's creditor, 208. 
 
 in money not to be required of insurance company having op- 
 tion to rebuild, 62. 
 
 manner of , how far material to garnishee's protection, 209- 
 
 210. 
 
 through an agent or go-between, whiu (omplete, 57. 
 
 into court, 317. 
 
TOPICAL INDEX. 597 
 
 [Tbe tigures refer to sections.] 
 
 PA Y M EXT— Cont'd, 
 
 by debtor to avoid being garnislied, or to aid defendant in not 
 paying debts, 183. 
 
 into court is payment to plaintiff, ISO; 317, note. 
 
 plaintiff's demand is not discharged, in any sense, by garnish- 
 ment judgment, until , 186. 
 
 to defendant by garnishee after he is served, 192. 
 
 under bond of indemnity is an admission of debt, 372, note. 
 
 personal earnings and pension money exempt after . 99. 
 
 by garnishee's agent before notice ^f service of writ. 49. 
 
 to defendant by person liable, but not joined as garnishee, 202. 
 
 of plaintiff's demand against defendant is a defense to garnish- 
 ment, 374, 375, 381. 
 
 on execution in main action a defense to garnishment, 376. 
 
 before garnishment, when no defense to garnishment, 378. note. 
 
 by check renders debt not garnlshable before payment of check, 
 137a. 
 
 PENDING. 
 
 garnishment as a defense, 189-191, 195-201. 
 suit against garnishee b.v defendant, 143-147. 
 
 PENSION MONEY, 
 
 exempt by United States statutes, 82. 
 after payment, 99. 
 till payment, 20. note. 
 PERFORMANCE, 
 
 creation of debt dependent on , (!3. 
 
 PERSON, 
 
 "any ," includes copartnership, 12. 
 
 "any person'' includes what, 14. 
 
 PERSONAL EARNINGS, 
 
 under exemption laws defined, 89. 
 
 PERSONAL PROPERTY, 
 see "Property." 
 
 PETITION, 
 
 see "Motion." 
 
 PLACE, 
 
 of payment fixed by contract affects garnishee's liability, CO. 
 at which summons may be served, 2i;s. 
 
598 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 PLAINTIFF, 
 
 as garnishee, 39. 
 
 PLIOADIiNG AND PRACTICE, 
 
 forming issue between claimant and plaintiff, 342-.'34G. 
 plaintifC and garnishee, 352-353. 
 
 privilege from garnishment should be urged by motion to dis- 
 miss, 14. 
 
 defense that exempt wages have been garnished in another 
 state, lOt-107. 
 
 prior garnishment pending cannot be pleaded in abatement of 
 
 subsequent garnishment, but is ground for continuance, 190. 
 
 as a defense to garnishment must be specially pleaded, 191. 
 
 how pleaded in defense of suit against garnishee by his 
 
 creditor, 106-201. 
 
 payment under prior garnishment, how pleaded as defense, 218- 
 220. 
 
 garnishee may, on motion, have improvident judgment against 
 defendant stricken, 1'25. note. 
 
 dissolving garnishment for irregularities, 284. 
 
 claimant flies first pleading, 342. 
 
 waiver of claimant's pleading. 342, note. 
 
 claimant relies only on substantial rights, 343. 344. 
 
 plaintiff's response to claimant's complaint, 34G. 
 
 irregularities waived in taking issue, 355. 
 
 time of taking issue on garnishee's answer, 360-362. 
 
 what allegations necessary in taking issue on answer, 357, 358. 
 
 manner of attacking and curing defects in pleading, 358, 359. 
 
 nature and scope of issue on garnishee's answer, 363. 
 
 entering nol. pros, as to part of garnishees and taking judgment 
 against others, 369. 
 
 motion to dismiss is proper practice to determine whether ap- 
 peal lies, 406. 
 
 motion for judgment when cause submitted on pleadings, 389. 
 
 PLEDGED GOODS, 
 
 liability of to garnishment. 109-176. 
 
 POLICE OFFICERS. 
 
 cannot be made garnishees, 19. 
 
TOPICAL INDEX. •'59y 
 
 [The figures refer to sections.] 
 
 POSSESSION, 
 
 of note by maker, effect on liability to garnishment, 130. 
 of defendant's goods which will render garnishee liable, 52-56. 
 goods in state renders nonresident garnishee liable, 15. 
 property in another state by garnishee wUl not render him 
 liable, 240. 
 
 PRESIDENT, 
 
 of corporation as its garnishee, 4i!^o. 
 
 PRESUMPTION, 
 
 of ownership of goods shipped, 37, note. 
 
 that garnishee's agent knows jf service of writ, 49. note. 
 
 of fraud from circumstances, 80-81. 
 
 that pi'operty or debt in garnishee's hands is not exempt. 84. 
 
 of design in selling exempt propei ty not to buy other, 97. 
 
 that note is transfeired at date of execution, 133, note 
 
 of regularity in KarnisUment proceedings as defense, 213-214. 
 
 that affiant has personal knowledge of facts stated in affidavit. 
 
 250. note, 
 of truth of garnishee's answer, 303, 313. 
 of continuing liability, 315. 
 of liability, 312. 
 
 of negligence from default, 3SG. 
 
 of due service of process when not sliown by return, 278. 279. 
 that admitted indebtednes.s is aue dtreudant served, 314, note. 
 
 PRINCIPAL AND AGENT, 
 see "Agent." 
 
 PRINCIPAL SUIT, 
 
 see "Main Action"; "Defendant in Slain Action." 
 
 PRIORITY, 
 
 between garnishing creditors .-ud otiieis. 1S8. 
 and assignee. U<J. 
 
 PRISONERS, 
 
 property taken from may be garnished, 5(5. 
 
 PRIVILEGE, 
 
 from garnishment, question ot raised by motion, 14. 
 
 PRIVILEGED COMMUNICATIONS. 
 
 which garnishee cannot be lequired to disclose, 291. 
 
tjOO LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 PraVITY OF CONTRACT, 
 
 between j>ai-nisliee and defendant not essential, 55, 58. 
 
 PROCEDURE, 
 
 see "Pleading and Piaclice.'' 
 
 PROCEEDS, 
 
 garnishee may be charged for of properly taken under fraud- 
 ulent assignment, 70. 
 of exempt property sold to buy other, 97. 
 
 PROCESS, 
 
 see "Summons"; "Scire Facias." 
 
 writ of garnishment is , 258. 
 
 by which claimant is brought in. 841. 
 
 PROMISSORY NOTE, 
 
 see "Negotiable Instruments." 
 
 PROMOTERS, 
 
 corporation cannot be charged as garnisliee on summons served 
 on , IG. 
 
 PROPERTY, 
 defined, 51. 
 
 subject to mortgage may be reached by garnishment, 109-176. 
 in real estate not garnishable, 177. 
 
 choses in action not garnishable as . lO.j. 
 
 exempt from garnishment, chapter 4. 
 beyond jurisdiction cannot be reached, 240. 
 
 PUBLICATION, 
 
 service on defendant by . 224, 233, 274. 275. 
 
 of notice of garnishment to defendant by , 2S3, note. 
 
 on claimant by , 341, note. 
 
 PUBLIC OFFICERS, 
 
 not liable to garnishment, 19, 2G. 
 
 Q 
 
 QUANTUM MERUIT, 
 
 not being maintainable by defendant for part performance, gar- 
 nishee cannot be charged, 03. 
 when defendant could maintain, the garnishee is liable, 04. 
 
TOPICAL INDEX. 601| 
 
 [Tile flgures ri'lci- to sections.] 
 
 ■QUESTIONS, 
 
 which garnishee may safely refuse to answer, 291-292. 
 plaintiff's right to propound oially, 299. 
 extent of plaintiff's right to propound, 308. 
 
 which should be put to jury for special findings on trial of gar- 
 nishment, 308, note. 
 
 R 
 
 KAILROADS, 
 
 as garnishees, 37. 
 
 garnishment of mortgaged tolls of . 174. note. 
 
 RATIFICATION, 
 
 by defendant after garnishment, of contract made before, can- 
 not defeat lien, 05. 
 
 REAL ESTATE, 
 
 garnishee not chargeable for , 177. 
 
 RECEIPTOR, 
 
 for sheriff not garnishable, 27, 35, note. 
 
 KECEIVER, 
 
 of chancery court, when chargeable as garnishee. 27-35. 
 
 the garnishee is a . 180. 
 
 of corporation is person on whom to sei-^'e garnishment against 
 
 It, 273, note, 
 for corporation being appointed does not abate garnishment 
 
 against it, 381. note, 
 garnishment judgment against — p, how recovered, 402, note. 
 
 KECITALS, 
 
 omitted from writ by mistake if clerk, 200, note, 
 in officer's return, 278. 
 of contents of affidavit in writ, 205, note. 
 
 of the fact and amount of the principal judgment in the garnish- 
 ment judgment, 396. 
 In judgments conclusive of facts recited, 227-229. 
 in bond not limiting, 322, note. 
 
 EBCORD, 
 
 what it must show to be a protection to garnishee from future 
 liability, 213. 
 
602 LAW OF GARNISHMENT. 
 
 [Tlie figures refer to sections.] 
 
 RECORD— Cont'd, 
 
 is proper evidence to prove defense by garnishment, 220. 
 
 recitals in conclusive, wlien, 227-229. 
 
 whether gai-nishee's answers are part of , 288, note. 
 
 what matters are part of , 408. 
 
 how construed, 408. 
 
 how corrected when defective, 408. 
 
 need not contain judgment in main action, 408. 
 
 of principal case considered without proof, 370. 
 
 papers missing from must be accounted for. 370. 
 
 RECORDING, 
 
 mortgage necessary to its validity against garnishment, 75, note; 
 
 81. 
 garnishment judgment, SiJ.Ti, 396. 
 
 RECOUPMENT, 
 
 garnishee entitled to ; same as if sued. 378. 
 
 REDEMPTION. 
 
 of mortgage in favor of garnishee by garnisliiug creditor, 172. 
 equity of , wliether garnishaWe, 170-171. 
 
 REFERENCE, 
 
 to commissioner to talie garnishee's answer, 292, note. 
 
 garnishee protected by judgment on not according to law, 215, 
 
 note. 
 
 REFUSAL, 
 
 by garnishee to answer questions, 290-292. 
 
 REGISTER, 
 
 in chancery cannut be charged as garnishee, 27. 
 
 RELEASE, 
 
 of garnished property on bond. 318-324. 
 
 by matters in abatement, 381. 
 
 by failure of main action, 224, 407. 
 of garnishee by payment into court, 317. 
 
 RELEVANCY, 
 
 of interrogatories to garnishee, 308. 
 of evidence in trial with claimant, 348. 
 against garnishee, 371-373. 
 
TOPICAL INDEX. 603 
 
 [The figures refer to sections.] 
 
 REMEDY, 
 
 garnishment statutes affect only , 11. 
 
 designed by legislature must be preserved, 0. 
 
 cannot be extended by construction, 10, 13. 
 REMOVAL OP CAUSES, 
 
 right of to federal court lost by talking judgment in main 
 
 action, 328. 
 see, also, "Appeals"; "Venue." 
 RENT, 
 
 not garnishable till earned, 120, 124, 12G, note. 
 
 REPLICATION, 
 
 to garnishee's answer, 352-3.15. 
 
 REPRESENTATIVE, 
 
 of deceased garnishee cannot be charged, 381. 
 
 persons, whether chargeable as garnishees, 27-35. 
 
 RESIDENCE, 
 
 of garnishee affecting right to charge him, 15. 
 of defendant affecting situs of debts due him, 242. 
 
 RES JUDICATA, 
 
 to what extent garnishment Judgment is , 202, 211, 212. 
 
 RETROACTIVE REMEDY, 
 
 garnishment statutes may afford , 11. 
 
 RETURN, 
 
 of service of garnishment bj' ofticer, 277-279. 
 
 RETURN DAY, 
 
 of writ must be when, 264. 
 
 REVERSAL, 
 
 of judgment against garnishee after he has paid it does not im- 
 pair his protection, 215. 
 in main action after payment of gamisliment does not affect 
 
 garnishee, 215, note, 
 against defendant vacates judgment against garnishee, 407. 
 
 RIGHTS, 
 
 to property in garnishee's possession acquired by garnishment, 11. 
 to retain from defendant not necessary to cliarge garnisliee, 54. 
 of strangers to garnishment not to be cut off by it, Go. 
 of garnishee, 182. 
 
604 LAW OF GARNISHMENT. 
 
 [The figures r"fer to seelioiis.] 
 
 RUMOR, 
 
 is not notice which will charge garnishee with knowledge of 
 claimants, 6C. 
 
 S 
 
 SAFE DEPOSIT, 
 
 persons holding property in ma> be charged as garnishees 
 
 therefor, 54. 
 
 SALES, 
 
 for cash create no garnishable liability, 12."). 
 of exempt property to buy other keeps proceeds exempt, 97. 
 in invitum do not destroy exemption in surplus or proceeds, 98. 
 of mortgaged property under garnishment proceedings, 172. 
 reserving title till payment, 125. 
 
 SATISFACTION. 
 
 of garnishment judgment, whether necessary to defense, 208. 
 
 mode of . how far material to defense, 200, 210. 
 
 of judgment in main action is a defense to garnishment, 374. 
 
 SAVINGS BANKS, 
 
 liable as garnishees for deposits, 46, note. 
 
 SCHOOL DISTRICTS, ETC.. 
 not li-able to garuishmeut, IS. 
 
 SCIRE FACIAS, 
 
 to gainishee in making judgment absolute, 310, 388. 
 
 not necessary when final judgment in main action, 354, note. 
 SEAL, 
 
 of court should appear on garnishment summons, 258. 
 
 whether answer of corporation as garnishee should be under its 
 , 300. 
 
 SECOND SUMMONS, 
 
 see "Scire Facias." 
 in continuation of suit, 224. 
 
 SECURITY, 
 
 is the object of garnishment, 7. 
 
 debts for which defendant holds may be garnished, and gar- 
 nishment takes , 127. 
 
 creditor having may employ garnishment, 185. 
 
TOPICAL INDEX. 605- 
 
 [The figures refer co sections.] 
 
 SEIZURE, 
 
 how far garnishment is , 192, 193. 
 
 SERVANT, 
 
 of defendant charged as his garnishee , o2, 42, 43. 
 SERVICE, 
 
 of tlie garnlslinient summons. 2(J8-i'7G. 
 
 time of, 2G8. 
 
 within what territory, 2G8. 
 
 by whom made, 268, note. 
 
 must comply with statute, 209. 
 
 waiver of irregularities. 270, 271. 
 
 upon natural persons, 272. 
 
 upon corporations, 273. 
 
 substituted in main action to support garnishment, 274-276.. 
 
 substituted not allowed in federal courts. 276. 
 
 upon defendant of notice of garnishment, 280-283. 
 
 garnishment depends upon liability at time of , 49. 
 
 upon claimant of notice to appear, 341. 
 of scire facias, 316. 
 
 SET-OFF, 
 
 when available to garnishee against defendant is availablfr 
 against plaintitif, 378. 
 
 various rules as to , 379. 
 
 equitable, 379. note. 
 
 not yet due. 379. 
 
 unliquidated, 379, note. 
 
 in different rights, 379, note. 
 
 acquired after garnishment. 3S0. 
 
 intention not to claim against defendant. .380. 
 
 burden to prove time of acquiring . 380. 
 
 must be specially pleaded as defense, 371, note. 
 
 SHERIFF, 
 
 whether liable to .a:arnishment. 27-35. 
 who may serve garnishment. 268, note. 
 
 SHIPS MORTGAGED, 
 
 not liable to garnishment, 171, note. 
 
 SIGNATURE, 
 
 of garnishee to answer, 298. 
 of clerk to writ, 258. 
 
606 LAW OP GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 SITUS, 
 
 rules for deterruiaing, 242-245. 
 
 effect of on .authority to charge garnishee, 242-24.5. 
 
 SOVEREIGN STATE, 
 
 cannot be sued except by consent. 2.1. 
 
 SPECIAL FINDINGS, 
 
 which should be asked of jury ou trial of garnishee's liability, 
 369, note. 
 
 SPENDTHRIFT, 
 
 under guardianship, judgment cannot be enforced by garnish- 
 ment, 27, note. 
 
 SPLITTING UP DEMANDS, 
 
 cannot be accomplished by assignment against debtor's will, ti'J. 
 may be done by garnishment, OU. 
 
 STAKEHOLDER, 
 
 garnishee as a , 178, 180, 
 
 STATE AND STATE OFFICERS, 
 cannot be made garnishees, 25, 26. 
 
 STATES, 
 
 may employ garnishment, 12. 
 
 STATUTE, 
 
 garnishment wholly dependent on -, 0. 
 
 making court offlcers liable to garnishment, 31. 
 
 STATUTE OF EXEMPTIONS, 
 
 as affecting garnishment, chapter 4. 
 
 STATUTE OF FRAUDS, 
 
 agreements within as a defense to garnishment, 48, note; 
 
 377. 
 
 acceptance not valid under , effect of, 72, note. 
 
 STATUTE OF LIMITATIONS, 
 
 as a defense to garnishment, 37G. 
 STATUTORY CONSTRUCTION, 
 
 garnishment statutes liberally construed, 8. 
 strictly construed, 8. 
 
 of terms indicating what may be reached by garnisliment, 51. 
 
 Intended remedy must be preserved, 9. 
 
TOPICAL INDEX. 607 
 
 [The figures refer to sections.] 
 
 STATUTORY CONSTRUCTION— Cont'd, 
 
 statutes cannot be extended by construction. 10. 
 
 garnisliment statutes affect the remedy only, 11. 
 
 who may employ garnishment, 12 
 
 statutes given retrospective effect, 11. 
 
 in what cases garnishment may be employed, 13. 
 
 STENOGRAPHER, 
 
 a laborer entitled to exemption, 91. 
 
 STIPULATION, 
 
 involving rights of claimant, when garnishee must Join in, 345, 
 
 note, 
 that defendant claims exemption not sufficient, 84, note, 
 abating garnishment, 3S1. 
 
 STOCK, 
 
 in corporation, when garnishable in suit against stockholder, lOS- 
 111. 
 
 assessments on garnishable in suits against company, 112- 
 
 114. 
 
 attached by garnishing person holding certificate may be trans- 
 ferred so as to give purchaser title free of garnishment, 168, 
 note. 
 
 STOPPAGE IN TRANSITU, 
 
 cannot be defeated by garnishment against consignee, 37, note. : 
 STRANGER, 
 
 to garnishment suit, how far bound by judgment, 203-205. 
 
 STRICT CONSTRUCTION, 
 of garnishment statutes, 8. 
 
 SUCCESSIVE GARNISHMENTS, 
 effect upon each other, 188-191. 
 
 SUFFICIENCY, 
 
 of garnishee's answer determined, 312, 314. 
 exceptions to, 307. 
 
 SUIT, 
 
 garnishment is a , 3. 
 
 by defendant against garnishee before garnishment affects It 
 
 how, 143-147. 
 affected by prior garnishment of defendant, 195-201. 
 
608 LAW OF GAKNISHMENT. 
 
 [Tlie figures refer to sections.] 
 
 SUMMARY PROCEEDING, 
 
 garuishment trial is not -, 3G7, uote. 
 
 SUMMONS IN GARNISHMENT, 
 
 see "Return"; "Scire Facias"; "Service." 
 attaches rights mentioned in affidavit, 250. 
 special notice accompanying, 2.37. Mb, uote. 
 is a process, and mu.st be valid as such, 258. 
 entitled in cause 259. 
 to answer in different suits, 259. 
 
 executors and corporatious named in as garnishees, 2G0. 
 
 all persons liable jointly as garnishees should be named in 
 
 2lJl. 
 
 persons jointly and severally liable named in , 2<52. 
 
 attaching several liability on joint writ, 2U3. 
 
 when returnable, 264. 
 
 must be In writing, 265. 
 
 stating amount of plaintiff's demand, 2(>5, uote. 
 
 statutory form permissive, 265. note. 
 
 reciting contents of affidavit, 205, note. 
 
 omitting attachment clause, 205, note. 
 
 naming and misnaming parties in ; errors and Irregularities 
 
 in , how taken advantage of and cured, 267. 
 
 void not amendable, 207. 
 
 SURETIES, 
 
 need not be joined with principal as garnishees, 2(it. 
 as garnishees of principal, set-off, 379. 
 
 SURPLUS, 
 
 after legal proceedings are concluded may be garnished in hands 
 of officer of court, 34, 35. 
 
 T 
 
 TAXATION OF COSTS. 397. 
 
 TAXES, 
 
 cannot be garnished, 13. 
 
 TENANTS, 
 
 not chargeable us gamishees for unearned rent, 120, 12ii, note. 
 
TOPICAL INDEX. 609 
 
 [Tlie figures refer to sections.] 
 
 TERMS, 
 
 of garnishment statutes as to what may be attached by garnish- 
 ment, 51. 
 
 TESTE, 
 
 of garnishment summons. 258. 
 
 TICKET AGENTS, 
 
 whether chargeable as garnishees in suits against company em- 
 ploying them, 42-43. 
 
 TIME. 
 
 computation of, 93; 98, note; 269, note, 
 of swearing to and filing affidavit, 256. 
 for return of writ, 264. 
 within which scire facias must issue, 316. 
 
 summons must be served, 268. 
 during which officer must search before returning sumn ons "Not 
 
 found," 275, note, 
 when garnishee must receive notice of assignments by defend- 
 ant, 66. 
 when defendant must be given notice of garnishment, 283. 
 during which garnishee may make answer, 293-297. 
 within which claimant may interplead, 334. 
 
 plaintiff may take issue on garnishee's answer, 360. 
 of service fixes garnishee's liability, 49. 
 within which exemption may be claimed, 84, note, 
 when wages were earned, as affecting exemption, 93. 
 intervening between sale of homestead and garnishment of pro- 
 ceeds as showing intent to buy another, 97. 
 
 TITLE. 
 
 see "Entitling." 
 of mortgagor, a garnishable interest, 109-170. 
 to real estate, garnishee examined as to, 177, 291. 
 being reserved by the seller till the price is paid, the buyer can- 
 not be charged as his debtor, 125. 
 
 TORT, 
 
 right of action for not a garnishable demand, 148-152. 
 
 TRANSCRIPT OF JUDGMENT, 
 garnishment on , 236, note. 
 
 LAW GARNISH. — 39 
 
610 LAW OF GARNISHMENT. 
 
 [The figures refer to sections.] 
 
 TRANSFER, 
 
 see "Appeal"; "Assignment"; "Venue, Cliauge of." 
 
 TRAVERSE, 
 
 of garnisliee's answer, 352-303. 
 
 of claimant's complaint, 340. 
 TREASURER, 
 
 of cumpany, whether chargeable as its garnishee, 42, 43. 
 
 of public bodies not liable to garnishment, IS, 19, 2o, 20. 
 
 TRESPASSER, 
 
 not chargeable as garnishee for goods acquired by trespass, 50. 
 TRIAL, 
 
 of claimant's title, 347-349. 
 
 of garnishee's liability, 304-382. 
 
 time of trial, 304-300. 
 
 TRUSTEE, 
 
 under assignment, whether subject to garnishment, 27, 77. 
 under general assignment may set off expenses. 378. note, 
 for courts not garnishable for property held officially, 27. 
 as garnishee of cestui que trust, 59. 
 
 TRUSTEE PROCESS, 
 
 garnishment known as, 1. 
 
 TRU'TH, 
 
 of garnishee's answer piesumed till contested, 303, 313. 
 is put in issue by traverse, 363. 
 
 U 
 
 UNCERTAIN, 
 
 answers construed against garnishee, 312. 
 answers construed against claimant, 34S, note. 
 
 UNITED STATES, 
 
 cannot be made garnishee, 23. 
 
 officers of exempt from garnishment, 2G. 
 
 may employ garnishment, 12. 
 
 UNLIQUIDATED DEMANDS, 
 not garnishable, 123, 148-l.:i2. 
 
TOPICAL INDEX. 611 
 
 [The figures refer to sections.] 
 
 USURY, 
 
 garnishee not chargeable for money taken by , 151. 
 
 V 
 
 VACATION, 
 
 judge cannot try garnishment during , 367. 
 
 VARIANCE, 
 
 which will defeat garnishment, 50. 
 
 VENDOR'S LIEN, 
 
 passes to garnishing creditor upon garnishment of vendee's debt, 
 127. 
 
 VENUE, 
 
 in which garnishment must be laid, 237. 
 
 in whicli main action may be laid to procure garnishment, 237. 
 
 VENUE, CHANGE OF, 
 
 origin of, 32.j. • 
 
 garnishment not separable from main action by , 326. 
 
 garnishment follows main action on , 326. 
 
 by stipulation between plaintiff and defendant does not carry 
 
 garnishment , 327. 
 
 in garnishment does not affect main action, 327. 
 
 garnishment an action en^tling parties to , 327, 328. 
 
 right to lost after judgment in main action, 328. 
 
 claimant entitled to , 328. 
 
 garnishee entitled to , 323. 
 
 VERBAL AGREEMENTS, 
 see "Statute of Frauds.' 
 
 VERDICT, 
 
 in garnishment cases must find specially the nature and amount 
 
 of the garnishee's liability. 369. 
 in action for a tort does not render demand garnishable, 151. 
 general demandable as in other cases, 369, note. 
 
 A'ERIFICATION, 
 see "Oath." 
 
 VEXATIOUS, 
 
 use of garnishment not allowed, 10. 
 
(312 LAW OF GAENISHMENT. 
 
 [The figures refer to sections.] 
 
 VOID, 
 
 proceedings cannot support garnisliment, 224-225. 
 
 VOUCHER, 
 
 for pay issued by government may be garnlslied in bands of pri- 
 vate person, 25, note. 
 
 w 
 
 WAGES, 
 
 to be earned under existing employment assignable, 7i. 
 defined, 89, 90. 
 
 WAIVER, 
 
 of compliance with garnishment statutes by garnishee, 6. 
 
 of privilege from garnishment 23, 29 34, note. 
 
 of rights by assignee claimant prt vents garnishee urging them 
 
 as a defense, 06. 
 of lien by mortgagee prevents owner making the defense, 174. 
 of exemption rights by defendant prevents garnishee maliing 
 
 that defense, 84, note, 
 of exemption rights by not properly claiming them, 84. 
 by executory contract, 80. 
 by garnishee surrendering property, SG. 
 must be unequivocal, 86. 
 of indemnity bond by garnishee charged for note made by him, 
 
 135, note, 
 of tort to maintain statutory assumpsit is personal, aud cannot 
 
 be claimed by garnishment, 150. 
 giving bond to prevent being deprived of possession is not a 
 
 by the mortgagee of his lien, 175, note, 
 of defects in plea of garnishment pending, 199, note, 
 by garnishee of lack of jurisdiction of main action, 225, 238. 
 by garnishee of privilege from suit away from his residence, 237. 
 of defects in garnishment affidavit, 253. 
 by garnishee of irregularities in the service of process on him. 
 
 270. 
 by garnishee of jurisdictional defects in summons or service, 271. 
 
 275, note, 
 of jurisdictional defects is not made by garnishee appearing 
 
 without objection, 286. 
 
TOPICAL INDEX. 613 
 
 [The figures refer to sections.] 
 
 WAIVER— Cont'd, 
 
 of defects in the return of process, 278, 279. 
 
 of the notice of garnishment required by law to be served on thp 
 defendant, 281, note; 283. 
 
 of right to answer before commissioner of the county where gar- 
 nishee resides, 293, note. 
 
 of impossible return day to writ by garnishee appearing, 294, 
 note. 
 
 of defects in the scire facias, or service of it, 316. 
 
 of jurisdictional defects in prior proceedings by answering scire 
 facias, 316. 
 
 of exemption by giving bond, 321, note. 
 
 of claimant's complaint, 342, note. 
 
 of order impleading claimant. 340. 
 
 of irregularities in taking issue on answer of garnishee, 35.3. 
 
 of delay in taking issue on answer of garnishee, 360. 
 in bringing issue to trial, 365. 
 
 of jury, 368. 
 
 WIFE, 
 
 as garnishee of husband, 41. 
 
 WITNESSES. 
 
 competency of , 372, 373. 
 
 V,'RIT, 
 
 see "Error"; "Summons"; "Ne Exeat"; "Injunction." 
 
 WRONGDOER, 
 
 garnishable for goods taken from defendant, 55. 
 
 cannot set up his wrong as defense. 48, note; 56, note; 76. 
 
 not chargeable as garnishee for goods taken by trespass, 56. 
 
 yfLHT PLlii-lSH NU CO., I'HXNTEKS AND STEBKOTYrEKS, ST. PAUL, MINN.