President of the Farmers & Merchants' Bank v. Franklin Bank

31 Md. 404, 1869 Md. LEXIS 121

• Court: Court of Appeals of Maryland
• Decided: December 3, 1869
• Status: Published

Opinion

Alvey, J.,

delivered the opinion of the Court.

In regard to the facts upon which the prayers of both parties were based, there seems to be no dispute; and upon the hypothesis that the credit attached belonged to Mitchell and Oliver, two of the defendants in the attachment, the Court below instructed the jury that it was competent to the garnishee to appropriate such credit to the payment of a debt against the defendants, which had been contracted before, but did not fall due until after the laying of the attachment, and before trial. And in thus instructing the jury, we think the Court did not err.

There is nothing in the attachment law of this State to justify the conclusion that it was designed, by allowing garnishment to be made, to place the garnishee in a worse position, in reference to the rights and credits attached, than if he had been sued by the defendant. The attaching creditor seeks to have himself substituted to the rights of his debtor as against the garnishee, and-by laying his attachment, he acquires no superior right to that of his debtor. The right of condemnation must, therefore, be subject to any such right of set-off or discharge existing at the time of garnishment, as would be available to the garnishee if he were sued by the defendant. Any other rule would, in many cases, work gross injustice, and might, moreover, be 'subject to great abuse.

"What, then, were the rights of the garnishee in respect of the fund attached, if it had been sued for by the defendants, Mitphell and Oliver ? As against them, there could be no question of the right of the bank to retain the amount on deposit to their credit in part payment of the debt against them, provided such debt was due and payable to the bank at the time of trial. 7 Gill & John., 138 ; 8 Gill & John., 218; 2 Har. & John., 77; 6 Md., 51. The only question, therefore, is whether the attachment having been laid on the 11th of May, 1867, and the note then held by the bank against the defendants for $4,500 not maturing until the 17th of June, 1867, the garnishment so affected the fund, or changed the relation of parties, as to defeat the right of set-off which would have been complete as against the defendants on the maturity of the note. We think not.' Eor though the note was not due at the time of garnishment, and was not, therefore, actionable, it was, nevertheless, an existing debt, payable at a future time, and becoming due before trial, was good matter of set-off, as well against the attaching creditor as against his debtor.

This right of set-off or discharge, as against the attaching creditor, should not, however, extend to any matter originating by the action of the garnishee, subsequent to garnishment, as otherwise it would be in the power of the garnishee in a majority of cases to defeat the right of condemnation, which should not, by any means, be allowed.

(Decided 3d December, 1869.)

The instruction of the Court, based as it was upon the hypothesis contended for by the appellants, that the money attached belonged to the defendants, and was, therefore, attachable, is decisive of the case, and it consequently becomes unnecessary to refer to the other propositions discussed in argument.

Judgment affirmed.