Hall v. Magee , 27 Ala. 414 ( 1855 )

OOLDTHWAITE, J.

The answer discloses that McCoy was indebted to the garnishees more than two thousand dollars, and agreed to serve them as bookkeeper for the year, to be allowed for his services fifteen hundred dollars, payable monthly; that he was to receive' in money only enough to pay the necessary expenses of his family, and the residue of his salary was to bo applied to the liquidation of the debt owing by him to the garnishees. This being the contract between the parties, the understanding must have been, of course, that the amount to be paid to McCoy in money was not to be aifected by his indebtedness to the garnishees ; and as the parties had a perfect right to make such a contract, it would necessarily follow, that if a suit had been brought by McCoy, to recover the amount which by the terms of the agreement he was to receive in money, the garnishees could not, under such circumstances, oppose his debt to them as a set-off.

But the difficulty in the present case arises from the fact, that McCoy was to receive in money such an amount only as was necessary to pay the expenses of his family, and the payment could only have been enforced in an action on the agreement itself; for the amount is uncertain, and the assumpsit of a character which the law would not imply. We have frequently held, that the remedy by garnishment did not extend to such cases —that only those demands were within its reach, which could be recovered by debt, or indebitatus assumpsit.— Self v. Kirkland, 24 Ala. 275; Cook v. Walthall, 20 ib. 334; Bostwick v. Beach, 18 ib. 80; McGehee v. Walke, 11 ib. 273. And the principle of these decisions is not affected by the Code (§ 2517), which, while it authorizes the application of the remedy to a debt which is not due, does not in any respect change the character of the demand which is the subject of garnishment. Whether due or not, it must be sufficiently certain to have authorized the party to whom it was due to maintain the actions we have mentioned.

Neither is the case affected by the 4th section of the act of 18th February, 1854, (Acts 1853-4, 26,) which does not make the salary, or wages, in every case the subject of garnishment, but simply exempts a certain portion of the salary in those cases in which it could be reached by this remedy.

As the demand which would have been owing by the garnishees at the time of their answer, was not in itself subject to" garnishment, the fact that it was paid by them can make no difference. If, indeed, at any time before the answer, the contract had been changed, so that the garnishees, if they had not paid, would have been liable either in debt or ■indebitatus assumpsit, the case might have been different, but there was no such .change.

Judgment affirmed,