The garnishee trust company was just as | Har. 306; chapter 90, volume 14, Laws of much a "bank" before the amendment of Delaware. 1909 as it was after. But it was not a "bank" then and is not a "bank" now because vesting a corporation with "banking powers" does not necessarily make it a "bank" within the meaning of the statute.

The distinction between a bank and a trust company is well defined. The exercise by a trust company of some of the functions of a bank does not make the company a banking institution. 3 A. & E. Ency. page 791. "Trust company engaged in the business of banking" is an apt description of the Equitable Guarantee & Trust Company.

Banks, saving institutions and loan associations, if corporations, are not, and never have been subject to the attachment laws of this state. The Equitable Guarantee & Trust Company is a corporation, and it needs only to show that it is a bank. Section 2 of the act of 1909, is as follows:

"That the said the Equitable Guarantee & Trust Company be and it is hereby vested with banking powers."

It is contended, that since the passage of said act vesting the company with banking powers it has been and is a bank within the It is first a trust company acting as trus- meaning of said chapter 90, volume 14, Laws tee, receiver, assignee, guardian, executor, ad- of Delaware, being section 4120 of the Code ministrator, or other fiduciary, as surety and of 1915, which shows that it is the corporegistrar of stocks and bonds, investing mon-ration itself which is either subject or not ey, receiving personal property on safe de- subject to the attachment laws. It cannot posit, managing real estate and collecting be said that whether the corporation is subrents. And throughout its twenty-six years ject to the attachment laws of the state deof existence it has carried on this trust busi- pends upon the manner in which it holds ness as distinct from its banking business as money or property of the defendant. That if it had no connection whatever therewith. is a question which is wholly immaterial, It is a trust company engaged in the busi- for a corporation summoned as garnishee ness of banking, just as it is engaged in the may not have any money in its hands, and business of dealing in real estate. if it be not a bank, savings institution or Does the company have to answer this at-loan association, it is compelled to answer. tachment? If, by its answer, it appears that it has nothing belonging to the defendant except a deposit of money in its banking department, it can make that clear by a special declaration, or under the plea of nulla

bona, and the deposit will be exempt by the

terms of its charter.

The exemption occurs in a saving clause or exception, in section 4120 which subjects "all corporations doing business in this state, except banks, saving institutions and loan associations," to the attachment laws.

It is a principle of the construction of statutes that provisos and exceptions in statutes

In short the exemption applies to a banking corporation in its corporate capacity and without any reference to any of its functions tations defining a bank: Exchange Bank v. or to the business which it may conduct. ClHines, 3 Ohio St. 1, 32; 1 Morse on Banks and Banking, § 2; Bouvier's Law Dictionary; 1 Bolles' Modern Law of Banking.

Inasmuch as the act of 1909 vests the Equitable Guarantee & Trust Company with banking powers, it is, in a measure, unnecessary to seek other authorities to have the word defined.

Section 1918, Revised Code of 1915, is a

are to be strictly construed. 36 Cyc. 1163, legislative definition of the word "banks" as 1164, and cases cited.

The intention of the legislature in excepting "banks" from the attachment laws was to exempt deposits of money.

It was undoubtedly such deposits of money that were exempt from attachment.

The intent of the statute of 1871, as understood by the legislature, which incorporated this company, was to exempt such deposits.

Argument of Counsel for Garnishee on the

Rule.

used in section 1 of article 9 of the present Constitution of this state which section ex

cludes banks from the operation of the general corporation law provided for by said Constitution. See also sections 2829, 2833, 2835 of the Code.

Construing these sections together then, a bank being an association exercising banking powers, and no one being allowed to exercise banking powers without being a corporation, it must necessarily follow that a corporation with banking powers is a “bank."

In Hamilton National Bank v. American The garnishee, the Equitable Guarantee & Loan & Trust Co., 66 Neb. 67, 92 N. W. 189, Trust Company, contends that it is a bank it was held that the defendant although namand is so shown to be by the agreed state-ed a trust company was, in fact, a bank. ment of facts filed in this proceeding, and The business of a bank has in the progress that being a bank it is under the laws of the of events been from time to time extended. state of Delaware not subject to the attach-Oulton v. Savings Institution, 17 Wall. 109, ment laws, and it should not therefore be 21 L. Ed. 618; Veazie Bank v. Fenno, 8 Wall. compelled to make answer, and that the rule 533, 539, 19 L. Ed. 482.

to show cause why the attachment should If the question whether or not a corporanot be dissolved should be made absolute. tion, having banking powers, is a "bank" is

the corporation may have in addition to its, son, 120 Mass. 465; Howard v. Patterson, 72 banking powers, then does the grant of the Me. 57; Hitchcock v. Lukens, 8 Port. (Ala.) powers enumerated in the act of Congress 333; Rogers v. Daniell, 8 Allen (Mass.) 343; creating federal reserve banks change the Derome v. Vose, 140 Mass. 575, 5 N. E. 478; character of the corporation so that it ceases McCrea v. Purmort, 16 Wend. (N. Y.) 460, 30 to be a bank? Will the powers enjoyed by Am. Dec. 103; Varet v. New York, 7 Paige the garnishee corporation, if conferred upon|(N. Y.) 560; New York v. Roulet, 24 Wend. the national banks deprive them of their character as banks? Surely if one of two corporations having precisely the same powers is a bank, it must of necessity follow that the other is also.

ed. Woolley, Practice, §§ 1173, 1179; Fitchett v. Dolbee, 3 Har. 267, 268; Reynolds v. Howell, 1 Marvel, 52, 31 Atl. 875.

Shelly, 1 Boyce, 10, 73 Atl. 796; Turner v.
Gibson, 105 Tex. 488, 151 S. W. 793, 43 L. R.
A. (N. S.) 571.

And likewise a surplus or balance arising Some confusion might arise from the lanfrom a sheriff's sale and due the defendant guage of the court in Plunkett v. Le Huray, may be attached in the hands of the sheriff. if taken apart from the facts of the case Woolley, Practice, § 1179; Jaquett v. Palm- and the rule of law as uniformly applied er, 2 Har. 144; In re Truxton, 2 Marvel, elsewhere. In that case it was plain that 373, 43 Atl. 257; Farmers' Bank v. Ball, 2 the trust was an active one; not one where Pennewill, 374, 377, 46 Atl. 751; In re Shel- the only thing remaining to be done was to ly, 1 Boyce, 10, 73 Atl. 796; Drake on At- distribute the fund, therefore it was not tach. § 508. See, also, Adams v. Barrett, 2 within the rule. N. H. 374; Curling v. Hyde, 10 Mo. 374; Anderson v. Patty, 168 Ill. App. 151; Robertson v. Detroit, 152 Mich. 612, 116 N. W. 196, 15 Ann. Cas. 131; Weaver v. Davis, 47 Ill. 235.

A receiver or master in chancery after decree of the court for payment of the fund, held the fund prior to the order as an officer of the court, but after the decree of payment the judicial proceedings were at an end and the execution of the decree for payment of the money was all that remained to be done, and, therefore, the reason for the rule excepting such funds from garnishment ceased, since there could no longer be any embarrassment to the judicial proceedings, hence garnishment would lie. Dunsmoor v. Furstenfeldt, 88 Cal. 522, 26 Pac. 518, 12 L. R. A. 508, 22 Am. St. Rep. 331; Piper v. Piper, 7 Pa. Dist. R. 135.

As to clerk of county court having money under decree of court of chancery, Wilbur v. Flannery, 60 Vt. 581, 15 Atl. 203. As to master in equity, Gaither v. Ballew, 49 N. C. 488, 69 Am. Dec. 763. Commissioner of chancery court, Fearing v. Shafner, 62 Miss. 791. As to receiver, Smith v. People, 93 Ill. App. 135; Russell v. Millett, 20 Wash. 212, 55 Pac. 44; Robertson v. Detroit, 152 Mich. 612, 116 N. W. 196, 15 Ann. Cas. 131.

The court in Fitchett v. Dolbee placed its decision squarely on legal liability in an action of assumpsit.

The bill in equity filed by the trustee December 11, 1914, was in fact a bill for instructions to the trustee. The Chancellor was asked to instruct the trustee whether the time had come to make distribution to the cestui que trust. To this answers were signed December 31, 1914, and January 2, 1915, and filed January 5, 1915, containing an agreement dated January 2, 1915, as to the amounts to be paid each distributee. The Chancellor's decree did no more, after fixing costs, commissions and counsel fees, than to declare that the fund was distributable and to order its distribution in accordance with the agreement.

Even if it required in this case the decree of the Court of Chancery to settle and determine the trust and declare a fixed sum payable to Leon B. Tantum, that decree was made January 6, 1915, before any answer was made by garnishee herein, and under our statute governing attachments garnishees are required to answer as to "money, goods, chattels, rights, credits or effects of the defendant, liable to attachment, in his hands or possession at the time he was notified of the attachment or at any time The reason for the rule against allowing after" (Revised Code, § 4127) up to time of attachment of funds in the hands of an ad- answer. "And if (upon trial on special decministrator or executor, a trustee, a sheriff taration or pleas of nulla bona) it be found or other court officer before an account is that the garnishee had, at the time he was passed or an agreement between the parties notified of the attachment, or at any time as to the amount due or an order of a court, after and before his plea pleaded any money, or other circumstance definitely fixing the etc.,

*

*

* the jury shall render a ver

amount to be paid to the debtor, and making dict for the plaintiff."
it in fact a debt or legal liability on the
part of the garnishee, is that otherwise
there would be a conflict of jurisdiction be-
tween courts, as between a court of equity
in the case of trustees, or a probate court
in the case of administrators, and the court
of common law in which the garnishment
proceeding is instituted. Until the ascer-
tainment of the amount there is not a debt
legally collectible in a common law court and
so no attachable credit.

This reason is recognized and clearly stated by Judge Woolley in the citation above made. Woolley on Practice, § 1173. It is also recognized and stated in the following cases: Fitchett v. Dolbee, 3 Har. 267; Reynolds v. Howell, 1 Marvel, 52 63, 31 Atl.

It is clear, therefore, that the rights of the attaching creditor and the garnishee are tried, not as they may have existed at the time the attachment was laid, but as they were either at that time or at any time after up to the time of the answer or the plea. Woolley, Practice, § 1192; Reynolds V. Howell, 1 Marvel, 52, 64, 31 Atl. 875; Woolley, Practice, § 1194; Jolls v. Keegan, 4 Pennewill, 21, 23, 55 Atl. 340; Brown v. Hartmann, 1 Pennewill, 195, 40 Atl. 60.

True it is the garnishee, at the time of his answer, should, in his answer, cover all the goods, chattels, money, effects, etc., which were in his hands at the time of the service of the attachment or at any time since up to the date of answer. Cullen, J.,

v. Howell, 1 Marvel, 52, 64, 31 Atl. 875; Drake, § 671; Groome v. Lewis, 23 Md. 137, 87 Am. Dec. 563; McPherson v. Snowden, 19 Md. 197.

As a general rule the trustee cannot be charged unless at the time of the disclosure (i. e., the answer), the principal defendant had a right of action against him for some indebtedness or property in his possession, etc. Getchell v. Chase, 37 N. H. 106; Haskell v. Haskell, 8 Metc. (49 Mass.) 545; Greenleaf v. Perrin, 8 N. H. 273.

A claim uncertain at the time of the attachment but rendered certain at the time of the answer, is embraced by the attachment. Franklin v. West, 8 Watts & S. (Pa.) 350; Sheetz v. Hobensack, 20 Pa. 412.

Is a trust company which is vested with banking powers subsequent to its creation, liable to attachment with respect to moneys held by the company, not in its banking capacity but as a trust fund entirely separate and distinct from its banking department? This is the specific question the court are required to determine.

It will be observed from an inspection of the company's charter that deposits made with the company were exempt from attachment "in the same manner as are the deposits of banks and like institutions." This act was passed many years before "banking powers" were expressly given to the company by an act of the legislature passed in 1909.

The company was created a guarantee and trust company, and as such was authorized to receive and hold on deposit money and other property.

The conclusion of the plaintiff is, therefore. that a portion of the sum of money in the hands of the garnishee, as disclosed by the special declaration, sufficient to pay the judgCounsel for the attaching creditor argues ment recovered in this case against Leon B. that the receiving and holding of money on Tantum, is subject to the attachment process deposit is a banking power. This is not disand applicable to the payment of such judg-puted, indeed it is shown by almost every authority cited by the company. It is per

ment.

At the conclusion of the argument by the counsel for the plaintiff on the special decla-haps not the power that most distinguishes ration-that is on the question whether the a bank from certain other institutions. It funds in the hands of the garnishee as trus- did not originally possess the power of distee for Leon B. Tantum, the defendant, might counting notes or bills. Counsel for the credbe attached, should the court be of the opin-itor argues further, that although the comion that the garnishee is not exempt from the attachment laws of the state, counsel for the garnishee stated in reply that they had made an exhaustive examination of the authorities on this point and believed that the contentions of counsel for plaintiff were sound and fully supported by the authorities.

The court's attention was directed to the following Delaware cases as having some bearing on the question raised: Flanagin & Sons v. Daws, 2 Houst. 476;. Doe ex dem. McMullen v. Lank, 4 Houst. 648; Jones v. Bush, 4 Har. 1; Farmers' Bank v. Ball, 2 Pennewill, 374, 46 Atl. 751; In re Kittinger's Estate, 9 Del. Ch. 71, 77 Atl. 24; Security Trust & Safe Deposit Co. v. Martin et al., 92 Atl. 245.

The court was of the opinion that the garnishee is exempt from the operation of the attachment laws of the state; and commented briefly on the question raised by the special declaration.

PENNEWILL, C. J., delivering the opinion of the court:

The sole question involved in this case is whether the Equitable Guarantee & Trust Company is a bank within the meaning of section 4120 of the Revised Code of 1915, which provides, inter alia, that:

pany did possess a banking power it was not thereby made a bank, for if it was, it would not have been necessary for the legislature, by the act incorporating the company, to exempt its deposits from attachment, they would have been exempt under general law; that although the amendatory act of 1909 vested the company with general banking powers, it was not thereby made a bank within the meaning of the act passed in 1871 which exempted from attachment process banks, savings institutions and loan associations; that after the passage of that act the company was no less a trust company than before; it was still a trust company with additional powers, but not a bank any more than an industrial corporation or railroad company would be if given banking powers.

Such in brief is the argument forcefully and plausibly presented by counsel for the attaching creditor. Did the conferring of banking powers on the company by the amendatory act make it a bank?

If it did then it was unquestionably exempt thereafter from attachment no matter in what department of its varied business the money sought to be attached might be. The company, as a whole, is a corporate entity and indivisible. Attachment process is issued against the company and not against any particular department of the company. So far as the application of the law is concerned it does not matter whether the monPrior to the enactment of this statute cor-ey and credits sought to be attached are in porations were not subject to the attachment the banking or some other department of the

"All corporations doing business in the state, except banks, savings institutions and loan associations are subject to the attachment laws of the state of Delaware, as provided in the case of individuals."

that is attached, and it is the company that the legislature must be gathered from the must answer, if liable to the attachment. If language of the particular statute and not it is a bank it is not liable, and cannot be from what the court think must have been attached in whole or in part. intended in view of then existing conditions and the general policy of the law.

[1] Does the conferring of full banking powers upon a trust company make such company a bank? There would probably be no doubt about this question if the policy of the law and our sense of fairness and justice were not opposed to any enlargement of exemptions under the attachment law.

As a general proposition it is unquestionably true that the investing of a corporation with banking powers makes it a bank, no matter by what name it is called. Calling an institution a bank does not make it a bank in legal contemplation if it is not givIf the Equitable Trust Company should be en the powers of a bank. And conversely, held to be a bank because it is vested with calling an institution a trust company does banking powers, the effect would be, not to not prevent its being a bank within the meanexempt its deposits from attachment, for ing of the law, if it possesses and exercises they were exempt before, but to exempt mon- all the powers of a bank. The only way to eys and credits in all other separate depart- create a bank is to give it the powers of a ments of the company's large and varied bank. That is exactly what has been done business. It may be that the legislature did in the case of the Equitable Guarantee & not intend or contemplate that the confer- Trust Company. The legislature has vested ring of banking powers on this company it with all the powers of a bank, and by so should have any such effect. It is not the doing has made it a bank within the meanpolicy of the law that money or other prop-ing of the statute that excepts banks from erty of a debtor should be exempt from at- the operation of the attachment statute. tachment for his debts. This is manifest from the fact that the only institutions excepted from the operation of the statute are banks, savings institutions and loan associations. Trust companies were not in existence in this state until many years after the attachment statute was passed, and they could not, therefore, have been within the contemplation of the legislature at the time.

In very few states, other than Delaware, are even bank deposits exempt from attachment. It is the policy of the law generally to make a debtor's property liable for his debts, and not to make it easy for him to circumvent his creditors. The exception of certain institutions in this state from the attachment law was not intended to benefit the debtor or assist him in escaping the pay ment of his debts. It was designed to aid those institutions in the performance of their duties, and mainly by preventing the attachment of their deposits.

We cannot escape the conclusion that when full banking powers are given to a trust company it is thereby made a bank. When it is made a bank the company is exempt from attachment because it is expressly excepted from the operation of the attachment law.

If trust companies, outside of their banking departments, ought to be subject to the attachment laws of the state, the legislature should make them so. The courts have not the power.

We realize that much confusion, and perhaps hardship, might be caused if we held that the conferring of banking powers did not make the company in question a bank. because its deposits are exempt from attachIt would not injuriously affect this company ment under its charter. But the deposits of other trust companies now or hereafter created may not be expressly exempted, and if be exempt from attachment at all. they are not banks, their deposits would not

Confusion might also be caused by the fact that national banks, under a recent act of Congress, are given powers other than banking powers, and the question would arise whether such banks would be liable to attachment with respect to moneys and credits held in departments separate and distinct from their banking business.

In 1871 when the attachment statute was passed there were very few banks in this state, and they were doing a purely banking business. Practically all the property they held that could be attached were deposits of money, and manifestly such was the property the legislature meant to exempt. The exception of moneys and credits that were in But regardless of possible effects and reno way connected with banking, but held in sults, we feel constrained to hold in this case: other and separate departments of a modern 1. That the vesting of the company with trust company, could not have been contem-banking powers made it a bank within the plated at all. In the light of conditions ex- meaning of the attachment law, and isting at the time it may be fairly assumed that all the law making body sought or intended to do was to exempt deposits connected with banking business.

2. That the company being a corporate entity, and indivisible so far as the service of process is concerned, it is not liable to attachment in respect to moneys in its trust department, or any other department of its operations, even though it be separate and distinct from its banking business.

But while this is all doubtless true, it may be immaterial in the determination of the present case, in the decision of which we must be governed by the law as we find In view of the decision above given it is