Set-off-right to purchase judgment for.

to the relations between George B. and F. R. Barnes have a material bearing on this question. To all intents and purposes, the former was playing in a double rôle. He was a judgment debtor whose property had been levied on and was about to be sold and, at the same time, a judgment creditor seeking to attach a judgment against himself. A judgment debtor may purchase a judgment for the purpose of using it as a set-off (Morton v. Urquhart, 79 Minn. 390, 82 N. W. 643; 15 R. C. L. p. 823; 23 Cyc. p. 1483), but is not entitled, as a matter of right, to offset one judgment against another, it being discretionary with the court to grant or deny such relief (Lundberg v. Davidson, 68 Minn. .328, 71 N. W. 395, 72 Ń. W. 71; Martin County N. Bank v. Bird, 92 Minn, 110, 99 N. W. 780). The procedure here is novel, but, of course, that alone is not a reason for holding that it was not proper. In Lemane v. Lemane, 27 La. Ann. 694, the court said: "The law tolerates no such absurdity as a judgment creditor seizing a judgment against himself."

In Irvine v. Myers, 6 Minn. 562, Gil. 398, this was said: "It is unnecessary to consider the question whether Irvine could levy upon a judgment against himself,

as we think that judgments should always be offset against each other when they are final between the parties, and their rights fixed under them."

And in Martin County Bank v. Bird, supra: "Such mutual judgments are set off against each other . . to avoid the unnecessary expense of issuing and levying executions in favor of the respective parties, upon the equitable theory that one judgment is to be treated as a practical payment pro tanto of that of the reciprocal judgment creditor."

In these cases, the court was speaking of domestic judgments, but the doctrine of set-off extends to judgments of different courts and to

those rendered in separate jurisdictions (15 R. C. L. p. 822; 23 Cyc. 1481), as, for example, to a decree in admiralty in a Federal court and a judgment in a state court (Schautz v. Kearney, 47 N. J. L. 56), and to a final judgment in another state and a domestic judgment (Phillips v. Mackay, 54 N. J. L. 319, 23 Atl. 941). Under all the authorities, since George B. Barnes was the real owner of the North Dakota judgment, he could have obtained adequate relief by applying to the district court of Wilkin county to have one judgment set off against the other, and the rights of all the parties could have been worked out if such an application had been made.

Attachment-of

sheriff.

There are valid reasons for holding that a judgment debtor may not attach the judgment after his property property in poshas been taken on session of execution and is about to be sold. It is an elementary rule of law that money received by a sheriff at an execution sale, or paid to him to satisfy the execution, is in custodia legis and beyond the reach of another writ. 23 C. J. p. 359. It would have been of no avail for Barnes to attach the money he paid to the sheriff. He attempted to reach it by attaching the judgment, and the question is: Should he be allowed to do indirectly what he could not do directly? The right to levy on a judgment is recognized by statute and in the decisions of this court. Gen. Stat. 1913, §§ 7909, 7930; Thompson v. Sutton, 23 Minn. 50; Henry v. Traynor, 42 Minn. 234, 44 N. W. 11; Wheaton v. Spooner, 52 Minn. 417, 54 N. W. 372. But in none of the cases cited was the levy made after execution was issued and notice of sale given, and in all of them the levy was made to satisfy a demand against the judgment creditor, held by one not a party to the judgment. An execution is the judgment creditor's process. As a general rule, it is within his exclusive control, and the officer must obey all reasonable

directions from him. The command of the writ is to levy on and sell the property of the judgment debtor and pay to the judgment creditor the proceeds, or so much thereof as will satisfy the execution. Gen. Stat. 1913, § 7928. The command of a writ of attachment is that the unexempt property of the defendant shall be attached and kept by the sheriff (Gen. Stat. 1913, § 7848), and the levy made in response thereto creates a specific lien on the property and takes it into the custody of the law (Atwater v. Manchester Sav. Bank, 45 Minn. 341-346, 12 L.R.A. 741, 48 N. W. 187). In the instant case, the judgment creditor would naturally direct the sheriff to go on with the sale of the land. An attaching creditor who is also the judgment debtor would naturally oppose the sale. When money was paid to the sheriff to satisfy the execution, a further conflict would arise. If he obeyed the command of the execution, he would pay the money to the execution creditor. If he obeyed the writ of attachment, he would keep the money for the attaching creditor. The process of the law should be allowed to run its course, for, if this was not the rule, there would be no end to the confusion and delays which a judgment debtor might create. Kelso v. Youngren, 86 Minn. 177, 90 N. W. 316.

As between the parties to the judgment, the assignment from C. R. to T. R. Verry was good, although it was not filed. Carlson v. Smith, 127 Minn. 203, 149 N. W. 199; Swanson v. Realiza

Assignment-of judgment-sufficiency.

tion & Debenture Corp. 70 Minn. 380, 73 N. W. 165. As against the judgment debtor, the assignee acquired all the rights of his assignor two days before the judgment was attached. The court correctly ruled that the administratrix of T. R. Verry's estate was entitled to the money remaining in the sheriff's hands after the attorneys' lien had been paid and satisfied.

3. C. R. Verry's failure to comply with the order requiring him to make a portion of Pleading-order his answer more to make more definite and certain definite-failure was of no consequence because the issues tendered by this portion of the answer were not litigated at the trial.

to comply.

4. The testimony of F. R. Barnes, coupled with the circumstances about which there is no dispute, justifies the inference that he never was the real owner of the North Dakota judgment; that George B. Barnes was such owner, and that he had his brother buy it so he might use it as a means of getting rid of the Minnesota judgment. The fact that Barnes's testimony

Evidence

was not contradict- weight-unconfinding that in fact ed did not compel a tradicted testi

mony.

he purchased the North Dakota judgment for himself, and not for his brother. Nelson v. Schmidt, 153 Minn. 474, 191 N. W. 281, and the cases there cited.

Many other questions are raised in the briefs. They have not been overlooked. We do not discuss them because the foregoing considerations dispose of each of the several appeals.

Each of the judgments is affirmed.

I. Introduction, 711.

II. Rule in general:

a. Sustaining right, 712. b. Denying right, 715.

I. Introduction.

Whether the same person may be both plaintiff and garnishee is a ques

III. Attachment of judgment by judgment debtor, 718.

IV. Question as one of local law, 720. V. Miscellaneous, 720.

tion upon which the authorities are conflicting. One line of authorities sustains, while the other denies, the

right of a plaintiff to summon or charge himself as garnishee. The jurisdictions on the respective sides are almost exactly equal, with a slightly larger number of cases favoring the right. Under these circumstances it can scarcely be said that the weight of authority favors. favors either view. While the reported case (VERRY V. BARNES, ante, 707), in holding that the judgment debtor could not attach his own judgment,-at least, after the property had been levied on and advertised for sale,-does not directly discuss the question, as such, whether a plaintiff has a right in any event to summon or charge himself as garnishee, yet the decision seems in line with those authorities which deny the right, and appears to be opposed to a number of cases which have applied the doctrine that a plaintiff may make himself a garnishee, in holding that a judgment debtor might attach the judgment. Before this decision in the BARNES CASE, it would seem that the weight of authority favored the right of a plaintiff to summon or charge himself as garnishee. That decision renders somewhat more doubtful the correct rule on the question, but the authorities seem still to preponderate slightly in favor of this right.

Most of the cases involve debts owing by, or judgments obtained against, the plaintiff in garnishment. Several cases, however, present the question of the right of the plaintiff to attach property in his own possession which belongs to his debtor. The right of the plaintiff to attach such property seems clearer than his right to garnish a debt owing from himself to the defendant, but the decisions in general do not apparently make a distinction in this regard. In Beach v. Fairbanks (1884) 52 Conn. 167, the court said that it seemed to be agreed that goods in the hands of a party belonging to his debtor may be attached by a garnishee process instituted by himself, but that it was not agreed that a debi owed by a party may be attached by that proceeding in a suit brought by the debtor upon a claim which he might have against his creditor. The

Alabama.

Dudley v. Falkner (1873) 49 Ala. 148 (recognizing rule). But see Wooldridge v. Holmes (1885) 78 Ala. 568 (dictum favoring contrary doctrine). See also Jos. Joseph & Bros. Co. v. Hoffman (1911) 173 Ala. 568, 38 L.R.A.(N.S.) 924, 56 So. 216, Ann. Cas. 1914A, 718, under IV. infra, recognizing opposite rule in that state.

Louisiana, Grayson v. Veeche (1823) 12 Mart. 688, 13 Am. Dec. 384 (judgment debtor may attach judg ment); Richardson v. Gurney (1836) 9 La. 285 (same); Citizens' Bank v. Hancock (1883) 35 La. Ann. 41 (same).

Maryland. (Express statute. See cases under V. infra.) New York. Wehle v. Conner (1880) 83 N. Y. 231 (judgment debtor may attach judgment).

Ohio. Norton v. Norton (1885) 43 Ohio St. 509, 3 N. E. 348.

Pennsylvania. Moyer v. Lobengeir (1835) 4 Watts, 390, 28 Am. Dec. 723; Coble v. Nonemaker (1875) 78 Pa. 501 (recognizing rule); G. B. Hurt v. Fuller Canneries Co. (1919) 263 Pa. 238, 106 Atl. 248 (judgment debtor may attach judgment); Pasquinelli v.

England. Hodges v. Cox (1905) Cro. Eliz. pt. 2, p. 843, 78 Eng. Reprint, 1070. See also other English cases cited infra, this subdivision.

In Graighle v. Notnagle (1816) Pet. C. C. 245, Fed. Cas. No. 5,679, the court sustained the levy of a foreign attachment under the Pennsylvania statute upon a debt due defendants in the hands of plaintiff in the attachment which had issued after suit was brought to recover the debt. The court, though relying somewhat on the general language of the statute extending the remedy to all creditors without distinction, thought that no general principle of law was violated, and no injustice done to the defendant in the attachment, by this mode of proceeding. To the objection of the manifest absurdity of process issuing against plaintiff in attachment in his own suit, of his answering to his own interrogatories, and of being subject to execution for a debt due himself, the court replied that, because the effect of an attachment suit might be defeated unless the plaintiff were armed with coercive measures against the garnishee, he certainly could not be required to use those measures whether they were necessary or not; and where the garnishee is himself the plaintiff there can be no necessity for a summons, scire facias, interrogatories, or any other coercive process against him.

Moyer v. Lobengeir (1835) 4 Watts (Pa.) 390, 28 Am. Dec. 723, also supports the doctrine that under the

Pennsylvania statute a foreign attachment may be levied on a debt due the defendant in the plaintiff's own hands. The court said that the plaintiff would otherwise be excluded from a right enjoyed by every other creditor. But the position was taken that the operation of the judgment is different where the plaintiff in the attachment is a third person than where one attaches funds in his own hands and enters judgment against the defendant for a debt alleged to be due; that it would be dangerous to hold that a judgment thus obtained in a proceeding to which the plaintiff himself is the only party should be even prima facie evidence, for it would enable a party to make evidence of a debt where none existed. And it was held accordingly that if a defendant seeks to avail himself of a prior attachment of the plaintiff's debt in his own hands, he must show the existence of the original debt on which the judgment in the foreign attachment was rendered.

And in Coble v. Nonemaker (1875) 78 Pa. 501, the court said that a person may attach goods in his own hands belonging to the defendant, or money which he himself owes the defendant.

In Egolf Bldg. & L. Asso. v. Cleaver (1910) 228 Pa. 60, 77 Atl. 245, it was held that a treasurer of a corporation, in order to collect his private debt, may attach stock of his debtor in the corporation by causing himself as treasurer to be summoned as garnishee, although his attorney was also solicitor for the corporation, and at plaintiff's request directed the sheriff to make no service upon the defendant.

And in Pasquinelli v. Southern Macaroni Mfg. Co. (1922) 272 Pa. 468, 116 Atl. 372, the court held that the plaintiff in an action of foreign attachment might attach money in his own hands belonging to the defendant.

Also, in G. B. Hurt v. Fuller Canneries Co. (1919) 263 Pa. 238, 106 Atl. 248, the court said that there was no difference in principle between the attachment of goods and of money, and held that the plaintiff in a for

eign attachment might attach in his own hands money belonging to the defendant.

And it was said in Hanscom v. Chapin (1905) 27 Pa. Super. Ct. 546, that a person may, by foreign attachment, attach goods in his own hands belonging to a defendant, or money which he himself owes to a defendant; but that the mere pendency of such an attachment does not bar his creditor, the defendant in the attachment, from suing and obtaining judgment for the amount of the debt due him; nor, even if he has obtained judgment in the attachment, is this a bar to an action against him.

And in Hanscom v. Chapin (Pa.) supra, where, in an action of assumpsit, the defense was that, by foreign attachment instituted by the defendant before the assumpsit suit was begun, the money alleged to be due to the plaintiff was attached by the defendant in his hands as garnishee, and judgment was rendered in the assumpsit action for want of a sufficient affidavit of defense, it was held that the defendant was not, as matter of right, entitled to a stay of execution pending the proceedings in foreign attachment, unless, at least, he offered to pay the amount of the judgment into court. The court said it could conceive of cases where, in order to secure the attaching creditor in his rights of priority and the lien which the attachment gave him, he could appropriately ask to have execution stayed until the determination of the attachment, this being a common practice where the attaching creditor is a third person; that the court did not say that circumstance might not entitle one who had attached money in his own hands to the same relief, but that it could conceive of no case where he could demand it as matter of right unless there was coupled with his application an offer to pay the amount of the judgment into court.

In Vermont it was held that a coplaintiff may be named as trustee and chargeable as such, as well for a debt or credit as for a specific article of personal property. Lyman v. Wood (1869) 42 Vt. 113. The court relied

on the language of the statute providing the remedy, and said that the case at bar was within both the terms and spirit of the statute, which applied to every person indebted to another. With reference to the supposed difficulty of enforcing the judgment against a trustee who stands in this double relation to the suit, the court thought that any embarrassment likely to be encountered as between the plaintiffs and the trustee was a matter of no interest or importance to the defendant.

And it has been held that a trustee will not be discharged because he was plaintiff's attorney, and as such made and indorsed the writ, and entered the action in court, afterwards withdrawing his appearance, there being no suggestion of fraud, and no claim that the rights of the principal defendant were in any way prejudiced by such procedure. Kelley v. McMinniman (1878) 58 N. H. 288. The court said, however, that such practice was irregular and not to be encouraged.

In Cleveland Sierra Min. Co. v. Sears Union Water Co. (1878) 4 Ohio Dec. Reprint, 208, it was queried whether plaintiff could garnish himself, under the Ohio statute providing that he may have garnishee process whenever he shall file an affidavit stating that any person or any corporation is indebted to the defendant.

But in Norton v. Norton (1885) 43 Ohio St. 509, 3 N. E. 348, the court held that plaintiff in attachment, whether a person or corporation, might garnish himself under the Ohio statute making any person or corporation liable as garnishee upon due service, and said that no good reason could be assigned why an attaching creditor may not reach money or credits in his own hands by garnishee process as well as any other creditor. In Sandusky Cement Co. v. A. R. Hamilton & Co. (1921) 273 Fed. 596, the court held, following the rule in Ohio where the case arose, that the plaintiff in an action in which the summons is returned as to the defendant, "Not found," may make himself garnishee, admitting an indebtedness to the defendant, and so acquire jurisdic