McBride, J.,
delivered the opinion of the Court.
Hyam H. Cohen having obtained judgment against the Mineral Point Bank, garnisheed the Perpetual Insurance Company of 8t. Louis. The company answered the interrogatories filed against her by Cohen, who replied, denying the truth of the answer, when the case was submitted to the court, upon an agreement of facts, who found for the defendant; the plaintiff moved for a new trial, which the court refused to grant him, whereupon he appealed to this Court.
The following is the agreed case submitted by the parties to the Court of Common Pleas :
“It is agreed by the parties aforesaid, that before the time of the service of the garnishment in this case, S. B. Knapp, cashier of the Mineral Point Bank, had deposited with the said garnishee $9,200, of notes of Kentucky banks, for which amount certificates of deposit were issued by said garnishee, payable to the order of said Knapp, cashier, which bank notes were of the value of $8,684. At the time said garnishee was summoned in this cause, the said sum so deposited remained in the hands of the garnishee and belonged to the Mineral Point Bank, and was subject to attachment by its creditors. But that before the service of the garnishment in this cause, the said garnishee had been summoned ' upon other prior attachments issuing from this Court and the St. Louis Circuit Court, in which judgments have since been rendered against said garnishee to the full amount of the principal sum deposited as aforesaid, which judgments have been satisfied out of the principal sum aforesaid, and there is no fund nowin the hands of said garnishee applicable to this attachment, unless the said garnishee is liable for interest on the said principal sum. It is further admitted that the said garnishee [377] did not pay the said fund into court, nor deposit the same in any manner subject to the order of the court, nor pay the same to the sheriff, nor did the said garnishee set apart the said fund from its other monies and hold the same without using it subject to the said attachments, but pending the said attachments continued to use the said funds in the same manner as its other monies. It is admitted that the holders of said certificates of deposit, claiming the same as their property, who were Jacob Little & Co. of New York, on the 17th November, 1S41, presented to said garnishee the said certificates of deposit and demanded payment thereof, which was refused on account of this and other attachments then pending; and that said holders soon afterwards sued said garnishee in the State of New York on said certificates of deposit, and attached the funds of said garnishee in said suit to the amount of the whole of said certificates of deposit, and said garnishee was obliged to defend, and did defend, the said suit, but the said Little & Co. recovered a judgment in the Supreme Court of New York for the full amount of said certificates, on the 23d May, 1844. The said Little & Co. gave to said garnishee a bond with security to indemnify said garnishee against the attachment suits in Missouri, and since said garnishee has paid the judgment recovered againsi it in this Court and in the St. Louis Circuit Court, the said Little & Co. have refused to repay the amount to the said garnishee, so that the said garnishee is actually out of the possession of money to double the amount of said certificates of deposit, and whether it will ever get the amount of its payments here, back from Little & Co., is to be determined by the result of a suit in New York, on their bond. The answer and supplemental answer of the garnishee in this case are made part of this agreement. It is admitted that in this cause an issue was made upon the answer of the garnishee as to whether said fund was liable to attachment by the creditors of said bank — that said issue was submitted to a jury who found a verdict for the plaintiff — that said garnishee then moved for a new trial which was overruled — that said garnishee then took a bill of exceptions and appealed to the Supreme Court of this State, by which Court the judgment was reversed and the cause remanded for a new trial. If upon this state of facts the court shall be of opinion that the said garnishee is chargeable with interest on said fund, then judgment shall be rendered in favor of said plaintiff for the amount of his judgment against the said Bank and interest and costs, if the amount of interest is sufficient for that purpose. But if the court shall be of opinion that the said garnishee is not chargeable with interest on said [378] fund, then judgment shall be rendered for the said garnishee, saving to each of the parties the right of appeal.”
The answers of the garnishee, referred to in the agreed case, and made • a part thereof, present no additional facts important in the decision of the question presented for our consideration.
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McBride, J.,
delivered the opinion of the Court.
Hyam H. Cohen having obtained judgment against the Mineral Point Bank, garnisheed the Perpetual Insurance Company of 8t. Louis. The company answered the interrogatories filed against her by Cohen, who replied, denying the truth of the answer, when the case was submitted to the court, upon an agreement of facts, who found for the defendant; the plaintiff moved for a new trial, which the court refused to grant him, whereupon he appealed to this Court.
The following is the agreed case submitted by the parties to the Court of Common Pleas :
“It is agreed by the parties aforesaid, that before the time of the service of the garnishment in this case, S. B. Knapp, cashier of the Mineral Point Bank, had deposited with the said garnishee $9,200, of notes of Kentucky banks, for which amount certificates of deposit were issued by said garnishee, payable to the order of said Knapp, cashier, which bank notes were of the value of $8,684. At the time said garnishee was summoned in this cause, the said sum so deposited remained in the hands of the garnishee and belonged to the Mineral Point Bank, and was subject to attachment by its creditors. But that before the service of the garnishment in this cause, the said garnishee had been summoned ' upon other prior attachments issuing from this Court and the St. Louis Circuit Court, in which judgments have since been rendered against said garnishee to the full amount of the principal sum deposited as aforesaid, which judgments have been satisfied out of the principal sum aforesaid, and there is no fund nowin the hands of said garnishee applicable to this attachment, unless the said garnishee is liable for interest on the said principal sum. It is further admitted that the said garnishee [377] did not pay the said fund into court, nor deposit the same in any manner subject to the order of the court, nor pay the same to the sheriff, nor did the said garnishee set apart the said fund from its other monies and hold the same without using it subject to the said attachments, but pending the said attachments continued to use the said funds in the same manner as its other monies. It is admitted that the holders of said certificates of deposit, claiming the same as their property, who were Jacob Little & Co. of New York, on the 17th November, 1S41, presented to said garnishee the said certificates of deposit and demanded payment thereof, which was refused on account of this and other attachments then pending; and that said holders soon afterwards sued said garnishee in the State of New York on said certificates of deposit, and attached the funds of said garnishee in said suit to the amount of the whole of said certificates of deposit, and said garnishee was obliged to defend, and did defend, the said suit, but the said Little & Co. recovered a judgment in the Supreme Court of New York for the full amount of said certificates, on the 23d May, 1844. The said Little & Co. gave to said garnishee a bond with security to indemnify said garnishee against the attachment suits in Missouri, and since said garnishee has paid the judgment recovered againsi it in this Court and in the St. Louis Circuit Court, the said Little & Co. have refused to repay the amount to the said garnishee, so that the said garnishee is actually out of the possession of money to double the amount of said certificates of deposit, and whether it will ever get the amount of its payments here, back from Little & Co., is to be determined by the result of a suit in New York, on their bond. The answer and supplemental answer of the garnishee in this case are made part of this agreement. It is admitted that in this cause an issue was made upon the answer of the garnishee as to whether said fund was liable to attachment by the creditors of said bank — that said issue was submitted to a jury who found a verdict for the plaintiff — that said garnishee then moved for a new trial which was overruled — that said garnishee then took a bill of exceptions and appealed to the Supreme Court of this State, by which Court the judgment was reversed and the cause remanded for a new trial. If upon this state of facts the court shall be of opinion that the said garnishee is chargeable with interest on said fund, then judgment shall be rendered in favor of said plaintiff for the amount of his judgment against the said Bank and interest and costs, if the amount of interest is sufficient for that purpose. But if the court shall be of opinion that the said garnishee is not chargeable with interest on said [378] fund, then judgment shall be rendered for the said garnishee, saving to each of the parties the right of appeal.”
The answers of the garnishee, referred to in the agreed case, and made • a part thereof, present no additional facts important in the decision of the question presented for our consideration.
Is the garnishee properly chargeable with interest on the deposits during the pendency of the attachment suit against her by the creditors of the Mineral Point Bank? The case agreed does not state whether/ the deposite, or any part thereof, was at interest, and if so, when the interest commenced running, and the rate of interest to be paid. We suppose however, that the deposite was of the ordinary character and did not draw interest until demand made and a refusal to pay. The demand in this case would be the service of the garnishment, provided judgment had been previously obtained against the bank, or perhaps more properly at the return term of the process against the garnishee, as she would not be able to answer or pay over the funds in her hands at an earlier period, if payment could then be made with safety to her own interest. Then, up to that period, the garnishee is certainly not liable for interest, as she was not chargeable with wrongfully withholding payment. Did her subsequent conduct operate an unnecessary delay of payment and subject her to interest on the deposite ? The facts show, that Knapp, the cashier of the Mineral Point Bank, made the deposite in his own name and took several certificates therefor, payablé at a future day upon their presentation to the defendant, which passed into the eastern firm of Little & Co-. That prior to their presentation a number of attachment suits had been instituted in the courts of St. Louis against the Mineral Point Bank, by her creditors, and the funds deposited by Knapp with the defendant had been attached to satisfy the demands. After the service of the garnishment on the defendant, the Little’s, holders of the certificates of deposit, presented them to the defendant and demanded their payment, but the defendant refused to pay in consequence of the proceedings instituted against her in St. Louis. The defendant afterwards answered the interrogatories filed against her in the courts of St. Louis, denying her indebtedness to the Bank of Mineral Point, but setting out the transaction between her and Knapp, the cashier, and stating the transfer of her certificates by Knapp to Little & Co., the demand made by them for payment of the same, her refusal to pay in consequence of the proceedings in the courts of St. Louis against her by the creditors of the bank, and desires the court to decide to whom she was liable; and in her supplemental answer she states that Little & Co. [379] had since the filing of her former answer, instituted proceedings against her by attachment in the courts of New York and attached her property in that State, and had prosecuted the same to final judgment against her. She therefore called upon the court to protect her from being compelled again to pay the same. From the foregoing summary of the facts, it is manifest that the garnishee was impelled in her defence, not by a desire to avoid paying to the rightful party the amount of the deposite, for she admitted her liability therefor, but because of the uncertainty as to who was legally entitled to receive payment; which uncertainty was brought about-by the acts of the creditors of the bank, coupled with those of the cashier. And she has found that her doubts were not wholly groundless, as judgments have been obtained against her for the entire amount of the deposite, both in the courts of New York and of this State. Whilst therefore, the defendant has been driven to contest the claim of the creditors of the Mineral Point Bank, in the courts of this State and of New York, and run the hazard of ultimately paying double the amount of the deposit, that she might be safe in paying out imoney deposited with her, it would be a harsh rule to hold that she has been guilty of an unreasonable and vexatious delay of payment, and subject her to further burden of paying interest thereon. Under the circumstances in which she found herself involved, we cannot see how she could have done less, regardful of her own interest. Therefore, we are of opinion that the court below committed no error,
and the other Judges concurring,
the judgment is affirmed.