Bowie, C. J.,
delivered the'opinion of this court.
The garnishees, to support'the issue on their part, offered in evidence that the Baltimore arid Ohio Rail Road and the Central Ohio Rail Road approach each other on opposite banks of the Ohio river, at Benwood and Bel Air, a few miles below the city of Wheeling, arid that goods and passengers, intended for transportation on both roads or parts of both of them, are transferred in either direction from one road to the other, by being carried across the Ohio by suitable ferry boats at Ben-wood and Bel Air aforesaid. That when the Central Ohio Rail Road was opened for trade and travel, it began to be used for through travel and trade; the Baltimore and Ohio Rail Road Company^ receiving from passengers and for goods to be transported from points on the Baltimore and Ohio Rail Road, to points on the Central Ohio Rail Road, or beyond, the fare or toll due to the Central Ohio Rail Road Company, and the latter company receiving in like manner, the fare and toll due the Baltimore and Ohio Rail Road Company, when the passengers or goods were forwarded eastward from points on the Central Ohio Rail Road. In this way, there were mutual accounts to be settled between the said companies, for the receipts of each on the other’s behalf, and these accounts, as they stood from the month in which the attachment was laid, (24th of July [378]*3781856,) were exhibited in response to the plaintiffs’ interrogatories in the paper marked 0, which, it was agreed, truly represented the entire account between the periods embraced in the said account, and, by agreement of counsel, was accepted as an answer to the interrogatories.
The appellees, (the plaintiffs below,) offered three prayers, which were refused, whereupon the appellants submitted the following instruction: “If the jury shall find from the evidence that before and at the time, and since the issual of the attachment in this case, there was a particular course of dealing between the Baltimore and Ohio Rail Road Company, garnishee, and the Central Ohio Rail Road Company, defendant, and that according to the course of dealing between them, there was not, at the time the attachment was issued or laid, and has not been since, any balance of account, owing by the Baltimore and Ohio Rail Road Company to the Central Ohio Rail Road Company, then, that the plaintiffs are not entitled to recover.” Which instruction the court refused to give, but gave the following instruction: “If the jury find credits to the amount of the plaintiffs’ debt, in the hands of the garnishees, they are entitled to recover, unless the jury also find the payments made by the garnishees were in virtue of some former pre-existing contract, or equitable agreement made by the gaarnishees, to appropriate the same, and it is incumbent on the garnishees to show, the existence of such pre-existing contract or equitable agreement.” From which refusal to grant the instruction prayed for by the garnishees, as well as from the granting of that framed by the court, this appeal is taken.
Attachments upon warrant, under the Act of 1795, ch. 56> have been allowed great latitude, in their operation upon-the rights and credits of defendants, so much so, as in the opinion of very distinguished and experienced jurists, to impede the negotiation of commercial paper:—Vide Dorsey’s opinion in Somerville vs. Brown, 5 Gill, 402, 403.
The liability of a garnishee in respect of property of a de[379]*379fen Jo a t ¡n Ills hands, is to be determined, ordinarily, by his accountability to the defendant on account of the property. If by any pre-existing bona fide contract, that accountability has been removed or modified, it follows that the garnishee’s liability is correspondingly affected, for it is well settled, that garnishment cannot have the effect of changing the nature of a contract between the garnishee and the defendant, or of preventing the garnishee from performing a contract with a third person: any other doctrine would lead to mischievous results. Drake on Attach., see. 517.
This principle is recognized by the decision in the case of Poe vs. St. Mary's College, where it was held, that the funds attached being deposited in the hands of the garnishee for a specific purpose, in advance, whether they belonged to the defendant or not, were not subject to the attachment. “Money deposited under such an agreement and for such purposes, cannot be attached as goods, even of the person depositing them, and the garnishees would have been guilty of a breach of trust if they had appropriated such funds to the payment of debts due from the father in this case, and then have deprived the scholars of the education which they undertook to give them, in consideration of the payments in advance to them.” 4 Gill, 503. Where the rights and credits attached depend upon mutual accounts between the garnishee and the defendant, the relation of debtor or creditor turns upon the terms and conditions on which their transactions were conducted.
If, upon the adjustment of their accounts, in their usual course of business, a balance appears in favor of either, that balance is a credit subject to attachment. Had a special written contract existed between the garnishees and the defendants, that they should reciprocally receive and advance for each other, in consideration of the relative position of their roads, to increase the public accommodation and enlarge their profits, the balances between them to be setttled monthly or annually, no doubt could be entertained that the attachment would be [380]*380controlled by the contract. An implied agreement established by a course of mutual dealing, it is apprehended would have the same effect. It is immaterial how the contract was made, if it was anterior to the attachment, bona fide and for good consideration.
As between a factor and his principal, the former has a lien for the amount advanced either on the particular consignment or the balance of his general account. Livermore on Agency, 261. Should an attachment be laid in such case, on the rights and credits of the principal, the lien would depend upon the-balance, on the settlement between them, not on.the fact, that at any given time subsequent to the laying of the attachment, or before, the garnishee had received funds of the defendant. This is illustrated by the case of the Bank of the Metropolis vs. New England Bank, 1 How., 234. The Bank of the Metropolis, had been for a long time dealing and corresponding with the Commonwealth Bank of Massachusetts. An account current existed between them, in which they mutually credited each other with the proceeds of all paper remitted for collection, when received, and charged all costs of protest, postage, &c. The balance was sometimes in favor of one, and sometimes of the other. On the 24th November 1837, the Bank of the Metropolis was debtor to the Commonwealth Bank $2200, and in the latter part of the year 1837, or January 1838, when notice of the failure of the latter was received, the Commonwealth Bank was indebted to the former $2900. The Commonwealth Bank transmitted to the Bank of the Metropolis for collection, sundry drafts and notes, which would fall due'in February, March, April, May and June, endorsed in the usual way. On the 13th of January 1838, the Commonwealth Bank failed, and its cashier wrote to the Bank of the Metropolis, to hold the paper forwarded as above, subject to the order of the cashier of the New England Bank, it being the property of that institution.
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Bowie, C. J.,
delivered the'opinion of this court.
The garnishees, to support'the issue on their part, offered in evidence that the Baltimore arid Ohio Rail Road and the Central Ohio Rail Road approach each other on opposite banks of the Ohio river, at Benwood and Bel Air, a few miles below the city of Wheeling, arid that goods and passengers, intended for transportation on both roads or parts of both of them, are transferred in either direction from one road to the other, by being carried across the Ohio by suitable ferry boats at Ben-wood and Bel Air aforesaid. That when the Central Ohio Rail Road was opened for trade and travel, it began to be used for through travel and trade; the Baltimore and Ohio Rail Road Company^ receiving from passengers and for goods to be transported from points on the Baltimore and Ohio Rail Road, to points on the Central Ohio Rail Road, or beyond, the fare or toll due to the Central Ohio Rail Road Company, and the latter company receiving in like manner, the fare and toll due the Baltimore and Ohio Rail Road Company, when the passengers or goods were forwarded eastward from points on the Central Ohio Rail Road. In this way, there were mutual accounts to be settled between the said companies, for the receipts of each on the other’s behalf, and these accounts, as they stood from the month in which the attachment was laid, (24th of July [378]*3781856,) were exhibited in response to the plaintiffs’ interrogatories in the paper marked 0, which, it was agreed, truly represented the entire account between the periods embraced in the said account, and, by agreement of counsel, was accepted as an answer to the interrogatories.
The appellees, (the plaintiffs below,) offered three prayers, which were refused, whereupon the appellants submitted the following instruction: “If the jury shall find from the evidence that before and at the time, and since the issual of the attachment in this case, there was a particular course of dealing between the Baltimore and Ohio Rail Road Company, garnishee, and the Central Ohio Rail Road Company, defendant, and that according to the course of dealing between them, there was not, at the time the attachment was issued or laid, and has not been since, any balance of account, owing by the Baltimore and Ohio Rail Road Company to the Central Ohio Rail Road Company, then, that the plaintiffs are not entitled to recover.” Which instruction the court refused to give, but gave the following instruction: “If the jury find credits to the amount of the plaintiffs’ debt, in the hands of the garnishees, they are entitled to recover, unless the jury also find the payments made by the garnishees were in virtue of some former pre-existing contract, or equitable agreement made by the gaarnishees, to appropriate the same, and it is incumbent on the garnishees to show, the existence of such pre-existing contract or equitable agreement.” From which refusal to grant the instruction prayed for by the garnishees, as well as from the granting of that framed by the court, this appeal is taken.
Attachments upon warrant, under the Act of 1795, ch. 56> have been allowed great latitude, in their operation upon-the rights and credits of defendants, so much so, as in the opinion of very distinguished and experienced jurists, to impede the negotiation of commercial paper:—Vide Dorsey’s opinion in Somerville vs. Brown, 5 Gill, 402, 403.
The liability of a garnishee in respect of property of a de[379]*379fen Jo a t ¡n Ills hands, is to be determined, ordinarily, by his accountability to the defendant on account of the property. If by any pre-existing bona fide contract, that accountability has been removed or modified, it follows that the garnishee’s liability is correspondingly affected, for it is well settled, that garnishment cannot have the effect of changing the nature of a contract between the garnishee and the defendant, or of preventing the garnishee from performing a contract with a third person: any other doctrine would lead to mischievous results. Drake on Attach., see. 517.
This principle is recognized by the decision in the case of Poe vs. St. Mary's College, where it was held, that the funds attached being deposited in the hands of the garnishee for a specific purpose, in advance, whether they belonged to the defendant or not, were not subject to the attachment. “Money deposited under such an agreement and for such purposes, cannot be attached as goods, even of the person depositing them, and the garnishees would have been guilty of a breach of trust if they had appropriated such funds to the payment of debts due from the father in this case, and then have deprived the scholars of the education which they undertook to give them, in consideration of the payments in advance to them.” 4 Gill, 503. Where the rights and credits attached depend upon mutual accounts between the garnishee and the defendant, the relation of debtor or creditor turns upon the terms and conditions on which their transactions were conducted.
If, upon the adjustment of their accounts, in their usual course of business, a balance appears in favor of either, that balance is a credit subject to attachment. Had a special written contract existed between the garnishees and the defendants, that they should reciprocally receive and advance for each other, in consideration of the relative position of their roads, to increase the public accommodation and enlarge their profits, the balances between them to be setttled monthly or annually, no doubt could be entertained that the attachment would be [380]*380controlled by the contract. An implied agreement established by a course of mutual dealing, it is apprehended would have the same effect. It is immaterial how the contract was made, if it was anterior to the attachment, bona fide and for good consideration.
As between a factor and his principal, the former has a lien for the amount advanced either on the particular consignment or the balance of his general account. Livermore on Agency, 261. Should an attachment be laid in such case, on the rights and credits of the principal, the lien would depend upon the-balance, on the settlement between them, not on.the fact, that at any given time subsequent to the laying of the attachment, or before, the garnishee had received funds of the defendant. This is illustrated by the case of the Bank of the Metropolis vs. New England Bank, 1 How., 234. The Bank of the Metropolis, had been for a long time dealing and corresponding with the Commonwealth Bank of Massachusetts. An account current existed between them, in which they mutually credited each other with the proceeds of all paper remitted for collection, when received, and charged all costs of protest, postage, &c. The balance was sometimes in favor of one, and sometimes of the other. On the 24th November 1837, the Bank of the Metropolis was debtor to the Commonwealth Bank $2200, and in the latter part of the year 1837, or January 1838, when notice of the failure of the latter was received, the Commonwealth Bank was indebted to the former $2900. The Commonwealth Bank transmitted to the Bank of the Metropolis for collection, sundry drafts and notes, which would fall due'in February, March, April, May and June, endorsed in the usual way. On the 13th of January 1838, the Commonwealth Bank failed, and its cashier wrote to the Bank of the Metropolis, to hold the paper forwarded as above, subject to the order of the cashier of the New England Bank, it being the property of that institution. The action was brought by the New England Bank for the whole amount of the notes. It was in proof that the Commonwealth Bank never at any time owned the notes, &c. [381]*381Mr. Chief Justice Taney, in delivering the opinion, said: “If the notes remitted had been the property of the Commonwealth Bank, there would be no doubt of the right to retain-; because it has been long.settled, that wherever a banker has advanced money to another, he has a lien on all the paper securities which are in his hands for the amount of his general balance, unless such securities were delivered to him under a particular agreement. The paper in question was, however, the property of the New England Bank, and endorsed to the Commonwealth Bank for collection, without any consideration, and as its agent in the ordinary course of business, it being usual and necessary, .so to endorse it, in order to enable the agent to receive the money. * # * If an advance of money had been made upon this paper to the Commonwealth Bank, the right to retain, for that amount, would hardly be disputed. We do not perceive any difference, in principle, between an advance of money and a balance suffered to remain upon the faith of these mutual dealings. In the one case as well as the other, credit is given upon the paper deposited, or expected to be transmitted in the usual course of the transactions between the parties. There does not, indeed, appear to have been any express agreement that those balances should not be immediately drawn for, but it may be implied from the manner in which the business was conducted; and if the accounts show that it was their practice and understanding, to allow them to stand and await the collection of the paper remitted, the rights of the parties are the same as if there had been a positive and express agreement; and such mutual indulgence on these balances would be a valid consideration; and like the actual advance of money, give the plaintiff in error, (the Bank of the Metropolis,) a right to retain the amount due on closing the account. # * * If, therefore, the jury find that the course of dealing between the Commonwealth Bank and the bank of the Metropolis, was such as stated in the bill of exceptions, then the plaintiff in error, (the Bank of Metropolis,) is entitled to retain for the amount due on the settlement of the account.” 1 How., 238 to 240.
[382]*382(Decided June 6th, 1862.)
So where railroads or canals, or other companies for the transportation of freight or passengers, have a connection and mutual dealings between them, for the promotion of their business, or public convenience, the relation of debtor or creditor must depend upon the course of that dealing.
The connection between coterminous lines of travel and transportation, cannot be maintained, unless agreements of this kind are recognized and sustained. The public convenience is greatly promoted by them, commercial relations, and social intercourse, are intimately interwoven with them. The net work of railroads, which checquers the country, is linked by such arrangements, and their usage, and course of dealing, must modify and control their liability to each other, as much as the usage and course of dealing of any other portion of the commercial world.
The .law of the case was, in our opinion, correctly expressed in the prayer of the garnishees, and there was error in rejecting it. Although the instruction afterwards given to the jury, by the court, embraced, to some extent, the same proposition, yet it is susceptible of being so construed, as to place upon the garnishees the onus of proving an express pre-existing contract, or agreement, with the defendant: whereas, the rights of the parties depended upon the mutual relations existing between them, and may be determined or inferred from the course of dealing between them, as shown by the account and other evidence in the cause.
Considering there was error in refusing the prayer of the gar=nishees, the judgment of the Circuit court will be reversed.
Judgment reversed and procedendo awarded?