Nicholson v. Crook ( 1887 )

Robinson, J.,

delivered the opinion of the Court.

This is an attachment by way of execution issued on a judgment recovered by the appellees against George B. Delcher, and laid in the hands of the appellants as garnishees.

The facts are simply these: The appellants were in the habit of purchasing and advancing money on drafts drawn by Delcher, and the money on such drafts was sometimes paid to Délcher, and sometimes it was left by him in the hands of the appellants, with the understanding that they were to hold it for the use and benefit of certain persons, named by Delcher at the time, and to be paid to such persons upon the presentation of his checks or orders.

After the service of the attachment, money was left by Delcher in the hands of the appellants in the manner above stated ; and which was subsequently paid by them to the parties named by Delcher upon the presentation of his checks.

The question in this appeal is whether the money deposited by Delcher with the appellants under these circumstances, is liable to garnishment at the instance of Delcher’s creditors. In this State the attachment hinds not only the property of the defendant in the hands of the garnishee at the time it is laid, hut also such property as may come into his hands at any time before trial and judgment. First National Bank vs. Jaggers, 31 Md., 38; Farmers and Merchants’ Bank vs. Franklin Bank of Balto., 31 Md., 404.

If the money thus deposited with the appellants, in fact belonged to Delcher, it was subject to the attachment served on them as garnishees; and the payment by them subsequently to other parties constitutes no defence in this action.

(Decided 17th March, 1887.)

There is no evidence to show that the deposit was made hy Delcher with the assent or knowledge of the parties named'by him, nor is there any evidence of an agreement or understanding between such parties and the appellants, either before or after the deposit was made.

It was then simply a deposit by Delcher, with the understanding that the appellants were'to hold the money for persons named by him, but not to be paid to such persons except upon Delcher’s checks.

We take the law to be well settled that where money is deposited by A with B, for the use of 0, the right of C to the money is not complete until 0 has in some manner recognized or assented to the deposit, or unless there is a privity of contract of some kind between B and O. Until such assent or privity of contract, the money is subject to the control of A, and therefore liable to attachment at the instance of his creditors. Kelly vs. Roberts, 40 N. Y, 432; Brown vs. Foster, 4 Cushing, 214; Baker vs. Moody, 1 Alabama, 315; Briggs vs. Block, 18 Missouri, 281; People vs. Johnson, 14 Ill., 342.

If this be so, then the money deposited by Delcher with the appellants after the service of the attachment, still belonged to him, and it was in his power at any time before the assent of the parties to the deposit, to revoke the terms upon which it was made.

The liability of. the appellants as garnishees is to be determined by their liability to Delcher, and if they had at any time after the service of the attachment, money in their hands belonging to him, it was apcording to the well settled law of this State liable to garnishment.

There was no error therefore in the rulings below, and' the judgment will be affirmed.

Judgment affirmed.