Opinion by
Rice, P. J.,
This was an attachment execution in which the Union National Mt. Joy Bank was summoned as garnishee of Samuel Kurtz, who was secretary of the. Tanners’ Mutual Fire Ins. Co., and agent for two other companies. These companies were permitted to become parties to the record and to plead and make defence to the extent of their several interests in the money attached. The plea was nulla bona, and on the trial of the issue evidence was given tending to prove the following facts:
Kurtz received a salary from the Tanners’ Insurance Company and commissions on collections made for the two other companies. He collected premiums and assessments for these com[239] pañíes and deposited them in his own name in the garnishee’s bank, in which he opened an account for the purpose. He testified that when he opened the account he informed the teller, Mr. Longenecker, who afterwards became the cashier, that the deposits he would make would belong to the insurance- companies, “ barring, possibly, some commissions and salary.” This was denied by Mr. Longenecker, or, to be more exact, he testified that he had no recollection that such notice was given. The deposits were marked by the teller in Kurtz’s bank book and on the bank’s “scrateher” with the names of the parties who paid the money. At the close of business on August 81, 1891, he had on deposit the sum of $128.39. On the following day he deposited checks amounting to $820.50 which the bank placed to his credit, and on the same day the bank honored his checks to the amount,of $706.39. At the close of business for the day, the balance standing to his credit was $242.50. On the following day (September 2) he deposited $16.8.08, so that on September 3, when the attachment was issued and served, there was an apparent balance to his credit of $410.58. One of the checks deposited on September 2 was drawn by Kingsley & Son on another bank, and given in payment of a premium of $275.50 on a policy issued by the Tanners’ Ins. Co. and of assessments, amounting respectively to $40.50 and $45, on policies in the two other companies. This check Avas marked “ Kingsley ” in Kurtz’s bank book and in the bank’s “ scrateher.” Immediately after Kurtz received notice that the attachment had been served on the bank, he requested Kingsley & Son to stop payment of the check and to pay him the amount. They complied with his request, and he accounted for the amount to the companies. The check spoken of was duly protested and the garnishee bank has brought a suit upon it against Kingsley & Son, which is still pending.
The plaintiff requested instructions to the effect that as the bank credited the defendant with the Kingsley check, never charged it back, and brought suit on it in its own name against the drawers it was estopped from denying or refusing the credit it gave therefor; in other words, it is to be treated as having the money, although as matter of fact the money never came into its hands. If the defendant had been the absolute owner of the check there might be some plausibility in this contention. [240] For, as we read his testimony, he did not notify the drawers of the check to stop payment until after the attachment had been served on the bank; and, obviously, nothing that he said or did after that, with regard to the payment of the check, could affect the attaching creditor’s rights as against his interest in the deposit attached. But we are of opinion that the case does not turn on the question whether payment of the check was stopped before or after the service of the attachment, and that undue prominence was given to that feature of the case. The real issue was as to the beneficial ownership of the check and the credit given upon it. If, as the evidence strongly tended to show, it was in the insurance companies, then it was not subject to attachment for Kurtz’s debt, and the bank was not estopped from proving that collection was prevented by the action of the companies’ agent. For this reason, if for-no other, it would have been error to affirm the points without qualification.
The general doctrine regarding the right to follow trust funds, is thus stated in Story’s Eq. Jur., secs. 1258, 1259 (13th ed.): “ The general proposition which is maintained both at law and in equity upon this subject is, that if any property in its original state and form is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust or give the agent or trustee converting it or those who represent him in right (not being purchasers for value without notice) any more valid claim in respect to it than they respectively had before such change. ... It matters not in the slightest degree into whatever other form different from the original the change may have been made, whether it be that of promissory notes, or of goods or of stock; for the product of the substitute for the original thing still follows the nature of the thing itself, so long as it can be ascertained to be such. The right ceases only when the means of ascertainment fails.” See also Bisph. Eq., sec. 86 (2d ed.).
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Opinion by
Rice, P. J.,
This was an attachment execution in which the Union National Mt. Joy Bank was summoned as garnishee of Samuel Kurtz, who was secretary of the. Tanners’ Mutual Fire Ins. Co., and agent for two other companies. These companies were permitted to become parties to the record and to plead and make defence to the extent of their several interests in the money attached. The plea was nulla bona, and on the trial of the issue evidence was given tending to prove the following facts:
Kurtz received a salary from the Tanners’ Insurance Company and commissions on collections made for the two other companies. He collected premiums and assessments for these com[239] pañíes and deposited them in his own name in the garnishee’s bank, in which he opened an account for the purpose. He testified that when he opened the account he informed the teller, Mr. Longenecker, who afterwards became the cashier, that the deposits he would make would belong to the insurance- companies, “ barring, possibly, some commissions and salary.” This was denied by Mr. Longenecker, or, to be more exact, he testified that he had no recollection that such notice was given. The deposits were marked by the teller in Kurtz’s bank book and on the bank’s “scrateher” with the names of the parties who paid the money. At the close of business on August 81, 1891, he had on deposit the sum of $128.39. On the following day he deposited checks amounting to $820.50 which the bank placed to his credit, and on the same day the bank honored his checks to the amount,of $706.39. At the close of business for the day, the balance standing to his credit was $242.50. On the following day (September 2) he deposited $16.8.08, so that on September 3, when the attachment was issued and served, there was an apparent balance to his credit of $410.58. One of the checks deposited on September 2 was drawn by Kingsley & Son on another bank, and given in payment of a premium of $275.50 on a policy issued by the Tanners’ Ins. Co. and of assessments, amounting respectively to $40.50 and $45, on policies in the two other companies. This check Avas marked “ Kingsley ” in Kurtz’s bank book and in the bank’s “ scrateher.” Immediately after Kurtz received notice that the attachment had been served on the bank, he requested Kingsley & Son to stop payment of the check and to pay him the amount. They complied with his request, and he accounted for the amount to the companies. The check spoken of was duly protested and the garnishee bank has brought a suit upon it against Kingsley & Son, which is still pending.
The plaintiff requested instructions to the effect that as the bank credited the defendant with the Kingsley check, never charged it back, and brought suit on it in its own name against the drawers it was estopped from denying or refusing the credit it gave therefor; in other words, it is to be treated as having the money, although as matter of fact the money never came into its hands. If the defendant had been the absolute owner of the check there might be some plausibility in this contention. [240] For, as we read his testimony, he did not notify the drawers of the check to stop payment until after the attachment had been served on the bank; and, obviously, nothing that he said or did after that, with regard to the payment of the check, could affect the attaching creditor’s rights as against his interest in the deposit attached. But we are of opinion that the case does not turn on the question whether payment of the check was stopped before or after the service of the attachment, and that undue prominence was given to that feature of the case. The real issue was as to the beneficial ownership of the check and the credit given upon it. If, as the evidence strongly tended to show, it was in the insurance companies, then it was not subject to attachment for Kurtz’s debt, and the bank was not estopped from proving that collection was prevented by the action of the companies’ agent. For this reason, if for-no other, it would have been error to affirm the points without qualification.
The general doctrine regarding the right to follow trust funds, is thus stated in Story’s Eq. Jur., secs. 1258, 1259 (13th ed.): “ The general proposition which is maintained both at law and in equity upon this subject is, that if any property in its original state and form is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust or give the agent or trustee converting it or those who represent him in right (not being purchasers for value without notice) any more valid claim in respect to it than they respectively had before such change. ... It matters not in the slightest degree into whatever other form different from the original the change may have been made, whether it be that of promissory notes, or of goods or of stock; for the product of the substitute for the original thing still follows the nature of the thing itself, so long as it can be ascertained to be such. The right ceases only when the means of ascertainment fails.” See also Bisph. Eq., sec. 86 (2d ed.).
Upon this familiar principle it is held that the true ownership of a fund deposited in bank may be proved to be in another than the person in whose name the deposit is made. Whether the bank is chargeable to the true owner must depend upon the circumstances of the case: Stair v. York Nat’l Bank, 55 Pa. 364; Erisman’s Appeal, 1 Pa. Superior Ct. 144. But as a general [241] rule, where the depositor could recover in an action at law if he were the true owner, the latter can recover in his own name in an action for money had and received: Frazier v. Erie Bank, 8 W. & S. 18; Stair v. Bank, supra; Bank v. Bache, 71 Pa. 213; Farmers’ and Mechanics’ National Bank v. King, 57 Pa. 202. In the last cited case Mr. Justice Strong said: “A de posit in bank, then, does not change the property in trust funds deposited by a trustee. The depositor may become a creditor of the bank, but he holds the contract in trust as he held the money before. It is not applicable to the payment of his debts to a general creditor. And a creditor who attaches the debt due from the bank to him can be in no better condition than the depositor. At most he becomes a statutory assignee of a naked legal right, with the beneficial ownership in another.” Applying these principles to the present case the first question is as to the true ownership of the Kingsley check. Was it in Kurtz or in the insurance companies? If the evidence on the part of the defence is to be credited — and that was a question for the jury — it belonged to the insurance companies. Being the true owners of the check they had a right as between themselves and Kurtz, and as between themselves and the attaching creditor, who stands in Kurtz’s shoes, to make any arrangement they saw fit with Kingsley & Son with regard to the payment of the debts for which it was given. The only person who could object would be the bank; but as the bank was only conditionally liable to the depositor or to the true owner of the cheek, it could in no way be prejudiced by the arrangement made. The effect was to discharge Kingsley & Son from liability on the check and the bank from the conditional credit it had given to the depositor. It would be monstrous to hold that the bank must pay money to the attaching creditor which it never received and which, if it had been received, would not have belonged to tire defendant in the attachment, and that it may make itself whole by compelling Kingsley & Son to pay it the money which they have already paid to the parties rightfully entitled to it. Fortunately no legal principle or legal fiction requires this to be done. Much is said in the argument of collusion between Kurtz and Kingsley & Son, but the fact that the arrangement was made by Kurtz can make no difference. He was the agent of the companies and must be regarded as [242] acting in their behalf. Assuming, of course, that they were the true owners of the check, fidelity to his principals dictated that he should omit no legitimate effort to prevent their money being taken to. pay his debt. It follows from what we have said that the-question as to the beneficial ownership of that portion of Kurtz’s deposit represented by the Kingsley check was for the jury; and, the fact being found in favor of the theory of the defence, the legal status of the case is the same as if Kingsley & Son had stopped payment at the request of some other officer or agent of- the companies, and then had paid the money directly to them.
As to the residue of the fund, a different question is presented. Conceding that, at the time of the service of the attachment, although deposited in Kurtz’s name, it really belonged to the insurance companies, yet, if since the attachment he has paid their claims represented by that particular fund, then, to that extent, the fund was freed from the trust, and belonged to him. It is to be treated the same as money coming into the hands of the garnishee after the service of the attachment, and hence was bound by it: Sheetz v. Hobensack, 20 Pa. 412; Mahon v. Kunkle, 50 Pa. 216; Hays v. Lycoming Ins. Co., 99 Pa. 621. Kurtz testified, and as to this there was no dispute, that he had settled with and paid two of the companies after the attachment, and that nothing was coming to them out of the fund, and according to the testimony of the officers of the other company nothing is coming to them. Kurtz, it is true, seemed to think differently, but his assertion goes for naught as against the company’s disclaimer. Where a deposit standing in the name of the defendant is attached, neither he nor the bank can defeat the attachment by setting up title in a third person who disclaims ownership. The fact being practically undisputed that any claim which the insurance companies may have had to the fund, after deducting the Kingsley check, had been extinguished by Kurtz, the plaintiff was entitled to positive instructions that it was bound by the attachment. The third and seventh assignments of error are sustained.
The admission in evidence of the defendant’s exemption claim for the purpose merely of showing that he kept up his claim did the plaintiff no harm, and is not ground for reversal. But as the case must go back for retrial it will be well for the court [243] below to consider, in the final disposition of the case, whether, in view of the defendant’s disclaimer of ownership of any part of the fund, persisted in even up to the trial, he can have it set apart to him under the exemption law. In Strouse v. Becker, 38 Pa. 190, it was said that if the debtor “ equivocates and dissembles, denies the ownership of that which he cannot hide, and embarrasses the officer of the law in the execution of his legal duties, he forfeits, not only his self respect, but his hold on the exemption provided for honest debtors.” This doctrine has been recognized in many later decisions: See Kreider’s Estate, 135 Pa. 578, and cases there cited.
The judgment is reversed, and a venire facias denovo awarded.