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jurisdiction in Tennessee to enforce defendant, and is allowed to act for a right of set-off belonging to a cred- him, which would be repugnant to itor in that state against a nonresi- the first principles of jurisprudence dent debtor, yet that such right could if he might be himself the plaintiff. not be enforced, directly or indirectly, It has been held that the rule that through the process of original at- a plaintiff may not garnish himself tachment and garnishment at law. precludes a plaintiff who sues in his

There is a dictum also in Courtney individual capacity from charging v. Carr (1858) 6 Iowa, 244, to the ef- himself as trustee in his capacity of fect that a plaintiff cannot, in his administrator (Hoag v. Hoag (1875) own action, garnish himself for a debt 55 N. H. 172); also that it prevents owing from him to the defendant;

a person from being sued as trustee and that his remedy would be by a in his representative capacity, where proceeding in equity to restrain its he is also a member of a partnership collection until his claim could be ad- by which the suit was brought (Blaisjudicated and ascertained.

dell v. Ladd (1843) 14 N. H. 129). Although the facts do not bring the It has been held that a judgment case within the scope of the annota- creditor is not “any other person” tion, attention is called also to Shep- within the meaning of a statute which herd v. Bridenstine (1890) 80 Iowa, enables a judgment creditor, on his 225, 45 N. W. 746, in which the court affidavit that judgment is recovered says that all the statutes in Iowa, and and is still unsatisfied, and that any all the law upon the subject, contem- other person is indebted to the judgplate that there are three persons to ment debtor and is within the jurisevery garnishment proceeding.

diction, to obtain an attaching order The principle that where there are making such other person a garnishee, mutual debts, the one should be set who may be summoned to show cause off against the other, and that one of why he should not pay what he owes the parties should not be allowed to the judgment creditor; and therefore bring attachment proceedings and a judgment creditor may not attach garnish himself as a debtor to his a debt due by himself to the judgment creditor whom he has made a defend- debtor. McCormick v. Park (1860) 9 ant for that purpose, was applied in U. C. C. P. 330. Baker v. Doe (1911) 88 S. C. 69, 34 | This is in accord with the decision L.R.A.(N.S.) 510, 70 S. E. 431, in .in Nonell v. Hullett (1821) 4 Barn. & holding that a consignee of goods can- Ald. 646, 106 Eng. Reprint, 1073, not attach the freight money in the

where a plea of defendant in ashands of his own agents to satisfy sumpsit that by the custom of London a claim for shortage in the consign

he had attached the debt sued on in ment.

the hands of himself and partner was In Knight v. Clyde (1878) 12 R. I.

held bad because the custom pleaded 119, it was held that a plaintiff could not by foreign attachment garnish

was that the plaintiff in the mayor's himself under the Rhode Island stat

court may attach any money due the ute, which, though not expressly de

defendant in the hands of “any other claring that the plaintiff should not person or persons.” be garnishee, provided that the plain

And although there are a number of tiff might sue the garnishee, and that

English cases which sustain the right, the latter might defend the suit in the

or at least show the custom, of a name of the defendant and recover plaintiff to attach debt which costs against the plaintiff. The court he himself owes to the defendsaid that these provisions implied ant (see II. a, supra), yet this practhat the plaintiff and garnishee were tice was not permitted to go unchalto be different persons; that they are lenged. See footnote to Harwood v. not only contemplated as occupying Lee (1561) 2 Dyer, 196b, 73 Eng. Readverse relations, but that the gar- print, 434, in which it is said that it nishee is regarded as representing the

had been held that a man, by the


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custom of London, cannot attach a positor was indebted to the bank for debt in his own hands.

an overdrawn amount, but the court And Bayley, J., in Nonell v. Hullett decided that the bank could not set up (Eng.) supra, doubted whether a cus- this defense against the deposit, and tom of attaching a debt in one's own the depositor, who was a nonresident hands could be supported.

of the state, recovered a judgment And it was contended in Hope v. against the bank, it was held that the Holman (1612) 1 Brownl. & G. 60, 123 latter might bring a suit against the Eng. Reprint, 665, that the practice depositor for the amount overdrawn, was unwarranted by the custom of and attach the judgment, which was London; but the case was decided on the only known property of the debtanother ground.

or within reach. Citizens' Bank v. III. Attachment of judgment by judg.

Hancock (1883) 35 La. Ann. 41. The ment debtor.

court said: "If it be true that the It should be observed that the gen

bank has a valid claim against Haneral question whether a judgment is

cock, she has the undoubted right, on subject to attachment or garnishment

a proper showing, to have its payment at all is beyond the scope of the anno

secured by mesne or final process, or tation. It may be assumed for present levy on any property of his within the purposes that a judgment is in general

state. The judgment recovered, whatso subject, but the question is whether

ever its consideration be, enjoys no the judgment debtor may himself immunity and is not shielded from attach or garnish the judgment.

seizure. It is nothing but sheer jusThe right of a judgment debtor to

tice to allow the bank, if she have attach the judgment after the sheriff

the real claim which she asserts has levied on the property of the debt

against this nonresident, to resort to or and advertised it for sale is denied

the conservatory measures of the in the reported case (VERRY V. BARNES,

law to prevent a total and irretrievable ante, 707). But in a number of

loss. The attachment should not other cases the right of the judgment

have been dissolved." debtor to attach the judgment has

So, a judgment debtor against been sustained. Grayson v. Veeche

whom execution was issued was held (1823) 12 Mart. (La.) 688, 13 Am.

in Richardson v. Gurney (1836) 9 La. Dec. 384; Richardson V. Gurney 285, entitled to attach the judgment (1836) 9 La. 285; Citizens' Bank v.

against himself, in an action brought Hancock (1883) 35 La. Ann. 41;

by him against the judgment creditor. Wehle v. Conner (1880) 83 N. Y. 231;

In this case, where one against whom G. B. Hurt v. Fuller Canneries Co. judgment had been rendered and (1919) 263 Pa. 238, 106 Atl. 248; Pas

execution issued brought an action quinelli v. Southern Macaroni Mfg. Co. against the judgment creditor and (1922) 272 Pa. 468, 116 Atl. 372; procured the issuance of an attachBoyd v. Bayless (1843) 4 Humph. ment against the latter, which attach(Tenn.) 386 (attachment in chancery, ment was placed in the sheriff's hands under statute).

with orders to levy it on any property In Grayson v. Veeche (1823) 12

of the judgment creditor, and particuMart. (La.) 688, 13 Am. Dec. 384, it larly on the amount of the judgment, was held that under the Louisiana

and, the sheriff being in doubt as to statute, authorizing the attachment of the course which it was proper for effects or credits of absent debtors,

him to pursue with respect to the plaintiff in attachment may attach

execution, the judgment debtor dethe amount of a judgment recovered

posited in the officer's hands the against himself by the defendant.

amount of the judgment and execuAnd where a depositor in a bank tion, and directed it to be held subbrought suit against it for an amount ject to his attachment, it was held which he claimed stood to his credit that the money due by the judgment on its books, which demand was re- debtor to the judgment creditor was a sisted on the ground that the de- proper object of attachment at the

suit of any of the creditors of the ! Butler and his partners a debt which latter, and was properly attached in they owe her. They are equally bent the suit brought by the judgment upon compelling her to pay a debt debtor; that, although the latter's which they insist she owes them. neglect to set up the claim which he Shall we lend to her the power of the sought to enforce by the attachment, law, and withhold it from them? by pleading it in the suit in which The learned counsel argues that misjudgment was obtained against him, chief will result because debtors will might be an objection to relief sought procure attachments to be levied upon by an injunction, yet it did not pre- the debts which they own and are vent the institution of a new suit in process of collection ? But an atby the judgment debtor, in which the tachment in such a case implies a debt money owing by him was subject to due from the plaintiff in the judgment attachment. And it was held that a attached which can serve as the basis rule on the sheriff to show cause why of its issue. If such a debt is due, he should not pay over the money the remedy works no wrong. If it is collected on the execution to the judg- not due, the plaintiff has ample opment creditor was properly dis- portunity to resist it in the courts.” charged.

In an earlier appeal in the Wehle In G. B. Hurt v. Fuller Canneries Case (N. Y.) supra, reported in (1875) Co. (1919) 263 Pa, 238, 106 Atl. 248, 63 N. Y. 259, it was held that the where a corporation issued a writ of levy of the attachment did not exforeign attachment and attached in cuse the sheriff, without direction of its own hands the amount of a judge the court, from making return of the ment obtained by the defendant execution. The court said that the against it, it was held that the attach- sheriff was required by statute to rement should not be dissolved on the turn the execution; that there was ground that the plaintiff was unlaw- nothing in the attachment or the statfully attaching money in its own ute relating to that remedy to prevent hands.

his levying upon property and making To the same effect, holding that a the money on the execution; that if judgment debtor may institute an ac- the attachment operated at all upon tion of foreign attachment against a his duty in respect to the execution, judgment creditor, and may summon it was as to paying over the money himself as garnishee and attach the to the plaintiff, the attachment law judgment, is Pasquinelli v. Southern not preventing the collection of the Macaroni Mfg. Co. (1922) 272 Pa. execution and the latter process ex468, 116 Atl. 372.

pressly requiring it. See also appeal And in Wehle v. Conner (1880) 83 in this case reported in (1877) 69 N. Y. 231, the court, in holding that N. Y. 546, in which it was held that a judgment debtor might bring an the attachment might be shown in evi. action on a claim against the judg- dence in litigation of damages, and ment creditor and attach the judg- that only nominal damages could be ment debt, said: “That the judgment recovered by the judgment creditor debtor was also one of the attaching for failure of the officer to perform creditors is a fact pressed upon our his duty in returning the execution, attention. It is a fact in the case. so long as the attachment remained The question asked is whether it is al- as an existing and valid process. lowable. We are unable to see why it In Chicago Sugar Ref. Co. v. Jackis not.

The law which permits the son Brewing Co. (1898) Tenn. issue of such attachment awards it 48 S. W. 275, a proceeding in the chanto all creditors who bring themselves cery court to collect an assigned within its provisions. By what right claim, complainant was permitted to can we assume to draw distinctions and attach certain judgments which the withhold the privilege given to all from debtor had recovered against a third particular classes or persons ? The person as principal and himself as plaintiff is bent upon procuring from surety.

And in Boyd v. Bayless (1843) 4 without notice to or knowledge of his Humph. (Tenn.) 386, it was held that creditor, and then successfully plead a complainant to whom a nonresident such a judgment as a bar to the acwas indebted might, under the Ten- tion by the creditor. The court said nessee Act of 1835-6 (which is not that this action was in the nature of set out), attach a debt in his hands a fraud on the creditor; that, even due from him on a judgment on a conceding the rule to be that a garpromissory note which the nonresi- nishee defends only for himself, the dent had deposited with a resident defense must be in good faith, whereagent or trustee for his benefit.

as, in this instance, no defense was

interposed, and in bad faith, in fraud IV. Question as one of local law.

of the rights of the plaintiff, the deIt has been held that the question fendant procured a judgment against whether or not garnishee process

himself. may be issued against and levied on In Maryland, and possibly in other an indebtedness due from the plain- states, the decisions upon the questiff to the defendant in the same ac- tion under consideration have been tion is a question of local law, since governed by the express terms of the it depends on the interpretation of statute, which permitted an attachthe statutes of the state providing for ment of property or credits in the the issue and levy of garnishee proc- plaintiff's own hands, or in the hands ess, and relates to tangible things of any other person.

Davidson v. having a local situs. Sandusky Ce- Beatty (1797) 3 Harr. & M'H. (Md.) ment Co. v. A. R. Hamilton & Co. 594; Baltimore v. Root (1855) 8 Md. (1921) 273 Fed. 596 (following the 95, 63 Am. Dec. 692; Hardesty v. rule in Ohio that the plaintiff may Campbell (1868) 29 Md. 533; Morton make himself a garnishee).

v. Grafflin (1888) 68 Md. 557, 13 Atl. In Jos. Joseph & Bros. Co. v. Hoff- 341, 15 Atl. 298. man (1911) 173 Ala. 568, 38 L.R.A. In Albert v. Albert (1894) 78 Md. (N.S.) 924, 56 So. 216, Ann. Cas. 338, 28 Atl. 388, the court does not 1914A, 718, the court, although recog- refer to any statute governing the nizing that in Alabama the rule is that question, though possibly the appara plaintiff cannot make himself a ent assumption that the plaintiff may garnishee in his own action, held charge himself as garnishee is based that where the law of another state on express statutory provisions. In (Ohio) permitted a creditor to gar- this case, where one sued out a writ nish for the satisfaction of his claim of attachment against a nonresident, a debt which he owed his debtor, a

and caused the same to be laid in judgment rendered in such proceed- his own hands as garnishee, it was ing upon a claim against a resident held that as garnishee he had an of Alabama must, under the full option to plead or otherwise, and faith and credit clause of the Federal that he had the right to have an apConstitution, be recognized and en- pearance made for him and pleas forced by the courts of the latter

filed in his name, without his consent, state.

stricken out, as unauthorized and as

a wrongful invasion of his right to V. Miscellaneous.

be represented by attorneys selected It was held in Smith v. Dickson by him. It was unsuccessfully con(1881) 58 Iowa, 444, 10 N. W. 850, tended that this view enabled one who that a debtor who was sued by his is both plaintiff and garnishee to creditor, and who knew that the claim control both sides of the litigation; was exempt from execution and gar- but the court held that the rights of nishment, could not, after the be- the nonresident defendant would not ginning of the action, go into an- be affected by any plea put in for other county and "procure himself him by the garnishee, as the latter to be garnished" and cause a judg- had a right to do under the statute. ment to be entered against himself, Where the plaintiff is not allowed to make himself a garnishee, it has held that, even if the rule obtained been held that a motion by the de- in that state that a plaintiff may fendant to quash the garnishment not so garnish himself, it would not proceedings is an appropriate method preclude the factorizing of the asof raising the objection. First Nat. signees of a claim in a suit brought Bank v. Elliott (1901) 62 Kan. 764, on such claim by their assignor, who 55 L.R.A. 353, 64 Pac. 623, holding retained under the assignment an that a motion by the defendant to equitable interest in the claim, since, quash the garnishment proceedings having both the legal title and an was appropriate to the relief sought, equitable interest, the assignor must and was properly sustained, where be considered the real party, and not a bank, which brought an action on the assignees, who held no legal title, notes, filed an affidavit in garnish- but only a certain equitable interest. ment, stating that it was indebted to Where moneys in the hands of a the defendant, and a summons in sheriff, ected by him upon garnishment was thereupon issued, execution, cannot be seized on attachrequiring the bank to answer as gar- ment or garnished by a third party, a nishee, which it did, admitting an creditor of the plaintiff in execution, indebtedness in a stated amount. they cannot, a fortiori, be seized or

The question whether a plaintiff garnished in his hands in an attachmay garnish himself for a debt due ment proceeding in favor of the the defendant was considered, but sheriff himself. Hill v. LaCrosse & not passed upon, in Beach v. Fair- M. R. Co. (1861) 14 Wis. 291, 80 Am. banks (1884) 52 Conn. 167, it being Dec. 783.

R. E. H.


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(113 Kan. 136, 213 Pac. 663.) Negligence - abandoning load of nitroglycerin on fire.

1. One driving an automobile loaded with nitroglycerin, who discovers that the automobile is on fire, the fire not having been caused by any lack of care on his part, and being stuck on a steep hill, is not guilty of actionable negligence in abandoning the automobile.

[See note on this question beginning on page 725.] - not proximate cause.

of the injury, there can be no recov

ery. 2. Where the negligence, as found

[See 22 R. C. L. 113; 3 R. C. L. Supp. by the jury, is not the proximate cause 1233; 4 R. C. L. Supp. 1456.]

APPEAL by defendant from a judgment of the District Court for Chautauqua County (Ayres, J.) in favor of plaintiff in an action brought to recover damages for personal injuries, alleged to have been caused by defendant's negligence. Reversed.

The facts are stated in the opinion of the court. Messrs. W. H. Sproul and Jones & there is no emergency such as will exWedell for appellant.

cuse the care due in all ordinary cases. Messrs. A. M. Parsons, J. E. Brooks, and R. O. Robbins, for appellee:

Savage v. Joseph H. Bauland Co. 42 Where the danger is not immediate App. Div. 285, 58 N. Y. Supp. 1014,

31 A.L.R.-46.

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