tion. The reasons for the rule are not stated, the court regarding the decision of the Ohio supreme court in line with this holding as a controlling authority.

The doctrine that a plaintiff in garnishment may attach funds in his own hands to pay a debt due to him from the person whom he owes is recognized and approved, also, in Dudley v. Falkner (1873) 49 Ala. 148, where the statute provided that garnishment might be issued against any person supposed to be indebted to the defendant; but the question was not directly presented for decision. See, as recognizing contrary doctrine, Wooldridge v. Holmes (1885) 78 Ala. 568, though the question was not decided; 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, which recognized the opposite rule as prevailing in Alabama.

That one may make himself a garnishee seems to be assumed in Arledge v. White (1858) 1 Head (Tenn.) 241, where a party who had attached a fund in his own hands belonging to his debtor was held to be entitled to priority over a subsequent attaching creditor. And see Boyd v. Bayless (Tenn.) under III. infra.

In Gallum v. Weil (1903) 116 Wis. 236, 92 N. W. 1091, it is held that a writ of attachment issues generally against the property of the defendant not exempt from execution, and may be executed by seizing any of such property wherever found within the county of the officer having the writ, even though the property be in the possession of the plaintiff.

The same conclusion, that the property was subject to attachment even though it was in the possession of the plaintiff in the attachment, was reached in Harriman v. Richardson (1921) 51 App. D. C. 24, 273 Fed. 752. The statutory provisions involved were to the effect that attachment might be levied upon so much of the goods, chattels, etc., of the defendant as might be necessary to satisfy the claim of the plaintiff, that notice should be served on any person in

whose possession any property or credits of the defendant might be attached, and that the attachment might be levied upon the personal chattels of the defendant, whether in the defendant's or a third person's possession. The latter provision the court held was not exclusive, and did not forbid a levy upon property in the hands of the plaintiff belonging to a nonresident defendant.

The English authorities seem to have generally recognized that by the custom of foreign attachment in the city of London, which is supposed to have suggested our garnishment and attachment laws, a plaintiff might attach a debt which he himself owed to the defendant. Hodges v. Cox (1905) Cro. Eliz. pt. 2, p. 843, 78 Eng. Reprint, 1070; Paramore v. Pain (1597) Cro. Eliz. pt. 2, p. 598, 78 Eng. Reprint, 841; Coke v. Brainforth (1601) Cro. Eliz. pt. 2, p. 830, 78 Eng. Reprint, 1057; Morris v. Ludlam (1794) 2 H. Bl. 362, 126 Eng. Reprint, 596; 1 Rolle, Abr. 554. That this right was questioned or denied, however, in some decisions, see English cases under II. b, infra.

b. Denying right.

While, as above indicated, the larger number of cases sustain the right of the plaintiff to make himself garnishee, yet this right has been denied in other cases, which represent an almost equal number of jurisdictions. The doctrine that the plaintiff cannot summon or charge himself as garnishee finds support in the following

cases:

United States. Rice v. Sharpleigh Hardware Co. (1898) 85 Fed. 559 (action arising in Tennessee).

Alabama. Wooldridge v. Holmes (1885) 78 Ala. 568 (dictum); Jos. Joseph & Bros. Co. v. Hoffman (1911) 173 Ala. 568, 38 L.R.A. (N.S.) 924, 56 So. 216, Ann. Cas. 1914A, 718 (recognizing rule). But see Dudley v. Falkner (1873) 49 Ala. 148 (recognizing contrary rule).

Iowa.

Courtney v. Carr (1858) 6 Iowa, 238 (dictum). See also Shepherd v. Bridenstine (1890) 80 Iowa, 226, 45 N. W. 746.

Kansas. First Nat. Bank v. Elliott (1901) 62 Kan. 764, 55 L.R.A. 353, 64 Pac. 623.

Belknap v. Gibbens (1847) 54 Mass. 475. Minnesota.-See VERRY V. BARNES (reported herewith) ante, 707.

New Hampshire.-Blaisdell v. Ladd (1843) 14 N. H. 129; Hoag v. Hoag (1875) 55 N. H. 172.

Baker v. Doe

It was said in Sandusky Cement Co. v. A. R. Hamilton & Co. (1921) 273 Fed. 596, that the cases holding that garnishee process may not be levied on an indebtedness due from the plaintiff to the defendant in the same action, and jurisdiction thus acquired, base this conclusion on the view that garnishee process is, in substance, an action by the plaintiff against the garnishee debtor, and that the same party may not be both plaintiff and defendant in the same action. In this instance, however, the court followed the contrary rule in Ohio, where the action arose.

It has been held that the question whether a plaintiff in an action on contract for the recovery of money can make himself a garnishee, and by garnishment proceedings appropriate money due and owing by him to the defendant, is one of statutory interpretation; and that a plaintiff cannot so make himself a garnishee where the statute provides that "the proceed ings against the garnishee shall be deemed an action by the plaintiff against the garnishee and defendant, as parties defendant, and all the provisions for enforcing judgments shall be applicable thereto," and that if any garnishee, duly summoned, fails to file his affidavit by way of answer, the court might render judgment against him for the amount of the judgment which the plaintiff recovered against the defendant. First Nat. Bank v. Elliott (1901) 62 Kan. 764, 55 L.R.A. 353, 64 Pac. 623. The court said that

In Belknap v. Gibbens (1847) 13 Met. (Mass.) 471, the court, although expressly declining to decide whether the plaintiff can summon himself, or whether several plaintiffs can summon one of their own number as a trustee, inclined to the view that a trustee suit as between plaintiff and trustee was an adversary process, and was therefore within the rule that a person cannot sue himself, or be plaintiff and defendant in the same case. And upon a second hearing of the case in (1847) 13 Met. 475, the court was of the opinion that the trustee must be discharged.

In Rice v. Sharpleigh Hardware Co. (1898) 85 Fed. 559, it was held that under the Tennessee statute a creditor could not bring a nonresident debtor into the state to answer an action of damages by attaching his own debt due to the nonresident for the purpose of acquiring personal jurisdiction over him in the original attachment at law, but that whatever remedy the creditor had must be by resort to equity for an injunction and an attachment of the plaintiff's own debt, which was authorized in chancery by the state statute. The court held that the statutory provision that attachment might be levied upon any real or personal property, debt, or chose in action "in which the defendant has an interest" should be construed in connection with another provision that when property, choses in action, or effects of a debtor "are in the hands of third persons, or third persons are indebted to such debtor," the attachment might be made by garnishment. And, construing these provisions of the Code together, the court reached the conclusion that while the chancery court had

jurisdiction in Tennessee to enforce

a right of set-off belonging to a creditor in that state against a nonresident debtor, yet that such right could not be enforced, directly or indirectly, through the process of original attachment and garnishment at law.

There is a dictum also in Courtney v. Carr (1858) 6 Iowa, 244, to the effect that a plaintiff cannot, in his own action, garnish himself for debt owing from him to the defendant; and that his remedy would be by a proceeding in equity to restrain its collection until his claim could be adjudicated and ascertained.

Although the facts do not bring the case within the scope of the annotation, attention is called also to Shepherd v. Bridenstine (1890) 80 Iowa, 225, 45 N. W. 746, in which the court says that all the statutes in Iowa, and all the law upon the subject, contemplate that there are three persons to every garnishment proceeding.

The principle that where there are mutual debts, the one should be set off against the other, and that one of the parties should not be allowed to bring attachment proceedings and garnish himself as a debtor to his creditor whom he has made a defend-' ant for that purpose, was applied in Baker v. Doe (1911) 88 S. C. 69, 34 L.R.A. (N.S.) 510, 70 S. E. 431, in holding that a consignee of goods cannot attach the freight money in the hands of his own agents to satisfy a claim for shortage in the consignment.

In Knight v. Clyde (1878) 12 R. I. 119, it was held that a plaintiff could not by foreign attachment garnish himself under the Rhode Island statute, which, though not expressly declaring that the plaintiff should not be garnishee, provided that the plaintiff might sue the garnishee, and that the latter might defend the suit in the name of the defendant and recover costs against the plaintiff. The court said that these provisions implied. that the plaintiff and garnishee were to be different persons; that they are not only contemplated as occupying adverse relations, but that the garnishee is regarded as representing the

defendant, and is allowed to act for him, which would be repugnant to the first principles of jurisprudence if he might be himself the plaintiff.

It has been held that the rule that a plaintiff may not garnish himself precludes a plaintiff who sues in his individual capacity from charging himself as trustee in his capacity of administrator (Hoag v. Hoag (1875) 55 N. H. 172); also that it prevents a person from being sued as trustee in his representative capacity, where he is also a member of a partnership by which the suit was brought (Blaisdell v. Ladd (1843) 14 N. H. 129).

It has been held that a judgment creditor is not "any other person" within the meaning of a statute which enables a judgment creditor, on his affidavit that judgment is recovered and is still unsatisfied, and that any other person is indebted to the judgment debtor and is within the jurisdiction, to obtain an attaching order making such other person a garnishee, who may be summoned to show cause why he should not pay what he owes the judgment creditor; and therefore a judgment creditor may not attach a debt due by himself to the judgment debtor. McCormick v. Park (1860) 9 U. C. C. P. 330.

This is in accord with the decision in Nonell v. Hullett (1821) 4 Barn. & Ald. 646, 106 Eng. Reprint, 1073, where a plea of defendant in assumpsit that by the custom of London he had attached the debt sued on in the hands of himself and partner was held bad because the custom pleaded was that the plaintiff in the mayor's court may attach any money due the defendant in the hands of "any other person or persons."

And although there are a number of English cases which sustain the right, or at least show the custom, of a plaintiff to attach a debt which he himself Owes to the defendant (see II. a, supra), yet this practice was not permitted to go unchallenged. See footnote to Harwood v. Lee (1561) 2 Dyer, 196b, 73 Eng. Reprint, 434, in which it is said that it had been held that a man, by the

custom of London, cannot attach a debt in his own hands.

And Bayley, J., in Nonell v. Hullett (Eng.) supra, doubted whether a custom of attaching a debt in one's own hands could be supported.

And it was contended in Hope v. Holman (1612) 1 Brownl. & G. 60, 123 Eng. Reprint, 665, that the practice was unwarranted by the custom of London; but the case was decided on another ground.

III. Attachment of judgment by judgment debtor.

It should be observed that the general question whether a judgment is subject to attachment or garnishment at all is beyond the scope of the annotation. It may be assumed for present purposes that a judgment is in general so subject, but the question is whether the judgment debtor may himself attach or garnish the judgment.

The right of a judgment debtor to attach the judgment after the sheriff has levied on the property of the debtor and advertised it for sale is denied in the reported case (VERRY v. BARNES, ante, 707). But in a number of other cases the right of the judgment debtor to attach the judgment has been sustained. Grayson v. Veeche (1823) 12 Mart. (La.) 688, 13 Am. Dec. 384; Richardson V. Gurney (1836) 9 La. 285; Citizens' Bank v. Hancock (1883) 35 La. Ann. 41; Wehle v. Conner (1880) 83 N. Y. 231; G. B. Hurt v. Fuller Canneries Co. (1919) 263 Pa. 238, 106 Atl. 248; Pasquinelli v. Southern Macaroni Mfg. Co. (1922) 272 Pa. 468, 116 Atl. 372; Boyd v. Bayless (1843) 4 Humph. (Tenn.) 386 (attachment in chancery, under statute).

In Grayson v. Veeche (1823) 12 Mart. (La.) 688, 13 Am. Dec. 384, it was held that under the Louisiana statute, authorizing the attachment of effects or credits of absent debtors, plaintiff in attachment may attach the amount of a judgment recovered against himself by the defendant.

And where a depositor in a bank brought suit against it for an amount which he claimed stood to his credit on its books, which demand was resisted on the ground that the de

positor was indebted to the bank for an overdrawn amount, but the court decided that the bank could not set up this defense against the deposit, and the depositor, who was a nonresident of the state, recovered a judgment against the bank, it was held that the latter might bring a suit against the depositor for the amount overdrawn, and attach the judgment, which was the only known property of the debtor within reach. Citizens' Bank v. Hancock (1883) 35 La. Ann. 41. The court said: "If it be true that the bank has a valid claim against Hancock, she has the undoubted right, on a proper showing, to have its payment secured by mesne or final process, or levy on any property of his within the state. The judgment recovered, whatever its consideration be, enjoys no immunity and is not shielded from seizure. It is nothing but sheer justice to allow the bank, if she have the real claim which she asserts against this nonresident, to resort to the conservatory measures of the law to prevent a total and irretrievable loss. The attachment should not have been dissolved."

So, a judgment debtor against whom execution was issued was held in Richardson v. Gurney (1836) 9 La. 285, entitled to attach the judgment against himself, in an action brought by him against the judgment creditor. In this case, where one against whom judgment had been rendered and execution issued brought an action against the judgment creditor and procured the issuance of an attachment against the latter, which attachment was placed in the sheriff's hands with orders to levy it on any property of the judgment creditor, and particularly on the amount of the judgment, and, the sheriff being in doubt as to the course which it was proper for him to pursue with respect to the execution, the judgment debtor deposited in the officer's hands the amount of the judgment and execution, and directed it to be held subject to his attachment, it was held that the money due by the judgment debtor to the judgment creditor was a proper object of attachment at the

suit of any of the creditors of the latter, and was properly attached in the suit brought by the judgment debtor; that, although the latter's neglect to set up the claim which he sought to enforce by the attachment, by pleading it in the suit in which judgment was obtained against him, might be an objection to relief sought by an injunction, yet it did not prevent the institution of a new suit by the judgment debtor, in which the money owing by him was subject to attachment. And it was held that a rule on the sheriff to show cause why he should not pay over the money collected on the execution to the judgment creditor was properly discharged.

In G. B. Hurt v. Fuller Canneries Co. (1919) 263 Pa. 238, 106 Atl. 248, where a corporation issued a writ of foreign attachment and attached in its own hands the amount of a judgment obtained by the defendant against it, it was held that the attachment should not be dissolved on the ground that the plaintiff was unlawfully attaching money in its own hands.

To the same effect, holding that a judgment debtor may institute an action of foreign attachment against a judgment creditor, and may summon himself as garnishee and attach the judgment, is Pasquinelli v. Southern Macaroni Mfg. Co. (1922) 272 Pa. 468, 116 Atl. 372.

And in Wehle v. Conner (1880) 83 N. Y. 231, the court, in holding that a judgment debtor might bring an action on a claim against the judgment creditor and attach the judgment debt, said: "That the judgment debtor was also one of the attaching creditors is a fact pressed upon our attention. It is a fact in the case. The question asked is whether it is allowable. We are unable to see why it is not. The law which permits the issue of such attachment awards it to all creditors who bring themselves within its provisions. By what right can we assume to draw distinctions and withhold the privilege given to all from particular classes or persons? plaintiff is bent upon procuring from

The

Butler and his partners a debt which they owe her. They are equally bent upon compelling her to pay a debt which they insist she owes them. Shall we lend to her the power of the law, and withhold it from them? The learned counsel argues that mischief will result because debtors will procure attachments to be levied upon the debts which they own and are in process of collection? But an attachment in such a case implies a debt due from the plaintiff in the judgment attached which can serve as the basis of its issue. If such a debt is due, the remedy works no wrong. If it is not due, the plaintiff has ample opportunity to resist it in the courts."

In an earlier appeal in the Wehle Case (N. Y.) supra, reported in (1875) 63 N. Y. 259, it was held that the levy of the attachment did not excuse the sheriff, without direction of the court, from making return of the execution. The court said that the sheriff was required by statute to return the execution; that there was nothing in the attachment or the statute relating to that remedy to prevent his levying upon property and making the money on the execution; that if the attachment operated at all upon his duty in respect to the execution, it was as to paying over the money to the plaintiff, the attachment law not preventing the collection of the execution and the latter process expressly requiring it. See also appeal in this case reported in (1877) 69 N. Y. 546, in which it was held that the attachment might be shown in evidence in litigation of damages, and that only nominal damages could be recovered by the judgment creditor for failure of the officer to perform his duty in returning the execution, so long as the attachment remained as an existing and valid process.