Rozelle v. Rhodes , 116 Pa. 129 ( 1887 )

Opinion,

Mr. Justice Clark :

On the 1st day of May, 1885, Mason C. Rhodes, executor of the last will and testament of Sidney Bailey, deceased, entered a judgment in the Court of Common Pleas of Lackawanna county, against Eben Rozelle, for debt 1100, with interest and costs; on the next day he issued an attachment-execution thereon, with clause of scire facias, to Isaac F. Tillinghast, garnishee. The writ was served on the defendant, and all debts, deposits, etc., due or owing the defendant in the hands of the garnishee, were levied and attached in satisfaction of the judgment.

On the 27th June, 1885, the defendant filed a special plea in substance as follows: That the defendant has no money, goods, effects, or merchandise in the hands of Tillinghast, the garnishee, except the sum of f800,' which he received from the United States as a pension for the loss of his son, whilst in the military service of the government during the war of the Rebellion; that the money attached is the identical money so received, and that it is in the hands of the garnishee for safe keeping only; that it is not held by the garnishee as a pledge, pawn, loan, or deposit, to be returned in kind, or in gold, silver, or legal tender money of like amount, but in the identical money left in his custody. The defendant’s contention is, first, that the money is not subject to seizure in any form of legal procedure; and, second, that if it is liable to be taken in execution for the defendant’s debts in any form, it is not subject to seizure on an attachment-execution. The answer of the garnishee is to the same effect, and the questions for consideration here are raised upon a rule against the garnishee on his answer and upon a demurrer to the defendant’s plea.

■The defendant, after issue joined on the demurrer, without leave added the pleas of nil debet,-payment with leave, etc., but the cause was disposed of in the court below and argued here solely upon the demurrer. .

Is the money subject to seizure for the debts of the defendant, under legal process in any form ? Section 4747 of the Revised Statutes of the United States provides as follows: “ No sum of money due, or to become due, to any pensioner, shall be liable to attachment, levy, or seizure, by or under any legal or equitable process whatever, whether the same remains with the pension office, or any officer or agent thereof, but shall inure wholly to the benefit of such pensioner.” The money which is exempted from legal seizure, under this section, it will be observed is particularly designated; it is “ any sum of money due or to become due to any pensioner.” This refers, of course, to money due or becoming due from the pension department; it is not pretended that the language of the statute can have any wider application than this. The further provision is, that such money shall not be liable to levy or seizure, under any process in law or equity, “ whether it remains with the pension office, or any officer or agent thereof.” It is very plain that the $800 in the hands of Tillinghast is not “ money due or to' become due ” from the pension department; nor is it money which “ remains in the pension office, or in the hands of any officer or agent thereof.” It is money which sometime previous to the attachment had been paid to, the pensioner, and which when paid to him “ inured wholly to his benefit ” ; it was his money, he could dispose of it as he pleased. The exemption provided by the statute, upon any fair and reasonable construction, will only protect the fund whilst in course of transmission to the pensioner ; after that, it is liable to seizure as other money. Some analogy was intended, we think, to the rule of law which prevails as to the fees and salaries of public officers, which as long as thejr maintain their distinctive character have always been held not liable to be taken by creditors under any form of process, by levy, sale, attachment, or sequestration: Davis v. Duke of Marlborough, 1 Swan. 79; Rundle v. Scheets, 2 Miles 330; Hutchinson v. Gormley, 48 Penn. St. 270. Therefore in Elwyn’s Appeal, 67 Penn. St. 367, the half pay of an officer of the government was held not to be liable to seizure by creditors; but when it had actually reached the beneficiary, and had lost its distinctive character, when as money it was in a proper sense a distributable fund, lying in the hands of the law, it was held to be governed by the direction of the law.

The precise question, it is true, is one of first impression in Pennsylvania; no case has been, brought to our notice which rules it. In Friend in Equity v. Garcelon, 77 Me. 25, however, the exact question has been fully considered and decided. Chief Justice Petees, of the Supreme Judicial Court, in passing upon this point, says: “ The question is, whether this provision furnishes any protection to, or exemption of, the money, after it comes into the pensioner’s hands. A careful examination inclines us to the conclusion that it does not. The meaning of the section seems to be that the protection is extended, so long as the money remains in the pension office, or its agencies, or is in course of transmission to the pensioner; it is money due, or to become due, that is protected by the law: ” Spellman v. Aldrick, 126 Mass. 113; Cavenaugh v. Smith, 84 Ind. 380; Faurote v. Carr (Ind.), 6 West. Rep. 281; Jardain v. Trenton Saving Fund Association, 44 N. J. 376; and Cranz v. White, 27 Kas. 319, although differing in some respects from the facts of this case, are substantially to the same effect.

But, assuming that the money was liable to seizure to satisfy the defendant’s debts, was it the proper subject of an attachment-execution, so that Tillinghast might be charged ás a garnishee? It is contended that “deposits of money,” in the 22d and 35th sections of the act of 16th June, 1836, must, in analogy to the principle announced in Lennig’s Appeal, 9 W. N. 503, be construed to be such as constitute the relation of debtor and creditor between the depositary aud the depositor. In order to a complete understanding of this question, a reference to the provisions of the act of 1836 becomes necessary.

Prior to 1836, the goods and chattels, lands and tenements only, of the defendant, were liable to be taken in execution upon a judgment. Stocks in incorporated companies held by him, it is true, were made liable to seizure and sale under the act of 29th March, 1819. With this exception, however, the general provision of the law was as stated. By the 22 section of the act of 1836, however, it is provided, that in addition to stocks owned by the defendant in any body corporate, “ deposits of money, belonging to him, in any bank or with any person or body corporate or politic, and debts due to him shall be liable, like other goods and chattels, subject to all lawful claims, etc.”; and, by the 23 section, “ goods or chattels pawned or pledged by the defendant, as security for any debt or liability, or which have been demised, or in any manner delivered or bailed for a term,” are declared to be “ liable to sale upon execution, as aforesaid, subject nevertheless,” etc. The 35th section of the same act provides, however, that in the case of a debt due to the defendant, or of a deposit of money made by him, or of goods and chattels pawned, pledged or demised, as aforesaid, the same may be attached and levied, in satisfaction of the judgment, in the manner allowed in the case of a foreign attachment; in which case, the writ shall contain a clause of scire facias to the garnishee, etc. See Wray v. Tammany, 13 Penn. St. 394; Gochenaur v. Hostetter, 18 Idem 414; Strauser’s Ex'r v. Becker, 44 Idem 206.

Whilst, therefore, all the goods and chattels of the defendant, whether they have been previously “pawned, pledged or demised, as aforesaid,” or not, are liable to seizure and sale on execution under nfi.fa., it is only such goods and chattels as have been “ pawned or pledged by the defendant, as a security for a debt or liability, or which have been demised or in some manner delivered or bailed for a term,” that are liable to an attachment-execution; the party in whose possession the goods are must have such a title or interest therein, that they cannot be taken from him: Lennig’s Appeal, 9 W. N. 503.

But there is no restriction in the 35th section to any particular kind or class of debts due, or deposits of money made by the defendant; that section applies in the most general terms to all debts and deposits; and whilst the 22d section provides that such debts and deposits shall be liable like other goods, and chattels, the 35th section, as was said by Mr. Justice Woodward, in Reed v. Penrose, 36 Penn. St. 239, prescribes that the manner of levying and seizing all such credits and choses in action shall be like that allowed in foreign attachment.

It may be conceded, perhaps, that if the money which Rozelle deposited with Tillinghast had been in the view of the sheriff, and within his power, he might upon a fieri facias have taken of it to the amount of his writ; but the money it must be conceded was a deposit with Tillinghast, and even if liable to levy upon a fi. fa. it was also liable to an attachment in execution in his hands. In disposing of the rule and the demurrer, we must of course assume the truth of the facts which the defendant and the garnishee have set forth in the plea and answer respectively, but we are not bound to accept their legal conclusions. A deposit, properly so called, is a naked bailment, and exists where one of the contracting parties gives something to the other to keep, who is to do so gratuitously and obliges himself to return it in individuo when he shall be requested. When one deposits money with another for safe keeping, the latter to return, not the specific money, but an equal sum, the transaction is also called a deposit, but it is an irregular deposit: Bouv. 511. Now, the transaction between Rozelle and Tillinghast was undoubtedly a deposit of money, plain and simple ; the money was left with Tillinghast for safe keeping, to be returned, not in money of like amount, but “in the identical money deposited,” and it is of no consequence that the garnishee in his answer, and the defendant in his plea, deny that it was a deposit, as by the admitted facts it was plainly nothing else.

It is true that a depositary is held to the exercise of ordinary care only, but when he becomes the depositary of a fund, he assumes that relation under the law as it exists, and thereby subjects himself to the chances that it may be attached in his hands for the depositor’s debts; and if he thereby incur a larger measure of responsibility, it is but the legitimate consequence of his own voluntary act.

Upon a careful, examination of the whole case, we find no error in this record, and

The judgment is affirmed.