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Candee and Scribner v. Webster.

391, seem to be strongly relied on by counsel for the plaintiffs. That was the case of a memorandum, made upon the margin of a note, designating the place of payment, which, it was held by the Supreme Court (Spencer, C. J.), did not form any part of the contract, and therefore did not discharge the accommodation indorser, though made without his knowledge. But in the court of errors, it was held otherwise, as well upon principle as upon a review of the authorities, notwithstanding the able opinion of Chancellor Kent to the contrary; and this decision, made in 1821, has ever since remained the law of that state. We think it rests upon principles which can not be successfully controverted.

As to the unauthorized character of the alteration in this case, it may be sufficient to say, that it is admitted to have been made without the knowledge or express consent *of the defendant, [452 and as the note, when indorsed, was without blanks, full and perfect in all its parts, there is nothing apparent from which such consent can be inferred or presumed. The conditions upon which his liability depended, were material and important elements of his contract, and an unauthorized alteration, by which those conditions would be substantially modified, must operate to discharge him. And the fact that the plaintiffs would not, as their counsel claim, have consented to discount the note, without the alteration, only demonstrates more clearly the impropriety of subjecting the rights and obligations of a party, under his contract, to such modification as the convenience or interest of others

may

dictate. Judgment of the district court affirmed.

BRINKERHOFF, C. J., and SUTLIFF, PECK, and GHOLSON, JJ., con. curred.

Morgan L. CANDEE AND EDWARD SCRIBNER, FOR THE USE OF M.

L. MARSH, v. GILBERT WEBSTER, SURVIVOR OF BENJAMIN B. GAYLORD.

In attachment proceedings, the garnishee is not, during the pendency wf the

same, thereby necessarily exempted from an existing liability to pay interest upon his indebtedness to the defendant in attachment.

Candee and Scribner v. Webster.

A cause of exemption, in such case, will not be presumed in favor of the gar

nishee, but must be shown to exist like any other defense.

In error to the district court of Ashtabula county.

The original action was assumpsit brought to recover the balance of a promissory note made by Webster and Gaylord to Candee and Scribner, and by them assigned to Marsh, for whose use the action was brought. 453] *The case reached the district court by appeal, and came to trial and judgment there, in April, 1854, on submission to the court.

From a bill of exceptions taken on the trial, it appears that on the 15th of December, 1848, there was due to Candee and Scribner, from Webster and Gaylord, the sum of six hundred and forty dollars, and bearing interest at the rate of seven per cent. per annum; that at said date Candee and Scribner assigned the debt to Marsh; that on the 27th of December, 1848, Webster and Gaylord were served with garnishee process from the court of common pleas of Asbtabula county, at the suit, in attachment, of H. A. Stone against Candee and Scribner, requiring them, said Webster and Gaylord, to appear and answer as to their indebtedness to Candee and Scribner; that on the 30th of December, 1848, and before said Webster and Gaylord were, by the process, required to answer as to their indebtedness to Candee and Scribner, due notice of said assignment of the debt to Marsh was by him given to Webster and Gaylord; that the suit in attachment was continued, from time to time, in said court of common pleas, upon a plea to the jurisdiction of the court, until the term held September 23, 1851, when the suit in attachment was settled and discontinued ; that on the 2d day of February, 1852, Webster and Gaylord paid to Marsh six hundred and thirty-eight dollars and fifty cents, to apply on their said indebtedness.

No other evidence was offered by either party; and thereupon the plaintiffs asked the court to assess the damages and render judgment for the sum of one hundred and fifty dollars—that being the amount due on the debt, if, by law, the defendants were bound to pay interest on the debt during the time the suit in attachment was pending, which the court refused to do, but assessed the damages of the plaintiffs at eighteen dollars, the amount due if the de.

Candee and Scribner v. Webster.

fendants were not bound to pay interest during the time the attachment suit was pending; to which ruling *and assessment of [454 damages the plaintiffs excepted, and moved the court for a new trial, on the ground that the ruling and assessment of damages were contrary to law; but the court overruled the motion, and entered judgment for the amount of the damages so assessed; and the plaintiffs excepted.

To reverse this judgment, the present proceedings in error were brought; and the assignment of errors are, that the district court erred in refusing to allow the plaintiffs interest on the debt during the pendency of the suit in attachment, and in overruling their motion for a new trial.

Buckland & Everets, and C. Booth, for plaintiffs in error, cited Drake on Attachment, 615; same, chap. 34, secs, 677-691.

Simonds & Cadwell, for defendant in error, argued :

That interest stopped from the time garnishee process was served upon the defendants. 4 Mass. 170; 2 Dall. 215; 4 Halsted 3 ; 9 Wheaton, 738, 749; 9 Barr, 468; 13 Wend. 639.

That interest was not chargeable during the pendency of the attachment suit, whether the defendant in attachment was the real owner of the debt or not. 9 Barr, 468.

That the defendants were not compelled to pay the money into court to save themselves from the interest. 4 Halsted, 3; 13 Wend. 639.

SUTLIFF, J. This case presents a question not heretofore, to our knowledge, settled in this state.

The rule which obtains in different states, in relation to an attachment suspending interest upon the sum attached in the hands of the garnisbee, is by no means uniform.

In the State of Pennsylvania, it has been held that a garnishee is not chargeable with interest upon his indebtedness to the defendant in attachment during the time he *is restrained [455 from paying, by force of the attachment; and this whether the attachment finally terminates in favor of the plaintiff or defendant. The garnisbee, however, is only there entitled to the benefit of the rule, upon his standing as a mere stakeholder between the plaintiff and defendant, admitting his liability to pay to the party entitled

Candee and Scribner v. Webster,

to receive the money, or, at least, not denying his liability to pay. In that state, the general rule is understood to be that the garnishee is not chargeable with interest during the time he is restrained by the attachment from paying. But if the garnishee is chargeable with fraud or collusion, or occasioning unreasonable delay, he will, in that state, be charged with interest. Fitzgerald v. Caldwell, 2 Dall. 215; Mackey v. Hodgsen, 9 Penn. St. 468.

A similar rule prevails in Maine. The garnishee is there held to be entitled to the benefit of the presumption that he was ready to pay but restrained by the attachment. And the garnishee is only chargeable with interest in that state, upon the proof of facts rebutting such presumption. Norris v. Hall, 18 Maine, 332.

So, too, in Georgia a similar rule obtains. It is there presumed, in the absence of proof of the contrary, that the garnishment restrains the garnishee from paying the money when he would otherwise have paid the same. Georgia Insurance and Trust Company v. Oliver, 1 Georgia, 38.

In Massachusetts a similar rule obtains. The presumption is there, in the absence of any proof upon the subject, that the gar. nishee is, by the attachment, restrained from paying, and the interest upon a debt otherwise drawing interest, is not chargeable to the garnishee. But if the proof show that the garnishee has, in fact, made use of the money during the pendency of the attachment, the presumption in his favor is thereby overcome, and he is chargeable with interest. Prescott v. Parker, 4 Mass. 170; Adams 456] v. Cordis, 8 Pick. 270. In the latter case the *court say: “ Prima facie, the service of the trustee writ stays the property in the hands of the trustee, and the law considers that it remains in statu quo until the judgment; but if it appears by the answer that the money is in constant use, or so mixed up with bis general funds as to form part of his trading capital, the reason of the rulo ceases, and so the rule itself ought not to be applied."

In Virginia the garnishee is charged with interest during the pendency of the attachment, the same as in any other action for the recovery of money, unless he pay the money into court. Tazewell's Ex'r v. Barrett & Co., 4 Hen. & Munf. 259.

In Maryland the rule prevailing in Pennsylvania, that the garnisbee shall not be compelled to pay interest pending the attachment, unless guilty of fraud or collusion, or unreasonable delay, has been rejected. The reason given is thus expressed : "Nothing

Candee and Scribner v. Webster.

can appear to be more just and equitable than that when a debtor is positively prohibited from paying his creditor, or is prevented from doing so by the overruling calamity of war, he ought not to pay interest. Because in such case he is compelled against his will to become the holder or bailee of the money at his own risk.”

“But in this state a garnishee in an attachment case is not thus absolutely tied up and restricted. He is not bound to hold the money at his own risk and against his consent, or longer than he chooses."

"I take it to be the established law of this state that the defendant, in all actions founded on contract for the recovery of a debt, may have leave, as a matter of course, to bring the sum sued for into court, and thus put a stop to the further accumulation of interest and costs, at least for so much as he brings in." Chase v. Munhardt, 1 Bland, 333.

It has been held in Missouri that the fact of the garnishee, in bis answer, denying his indebtedness, fully rebutted the presumption insisted upon in bis favor, that he had had the money lying idle by him to pay the indebtedness, and so ought not to be charged interest. And the *court refused to exempt the garnishee [457 from his liability to pay interest in the case during the pendency of the attachment. “There are cases,” says the court, “in which the garnishee ought not, in strict justice, to be held liable for interest; as where he comes forward, admits bis indebtedness, and avows a readiness to pay the amount thereof, whenever the court shall determine who is entitled to receive it." Stephens' Garnishee, etc. v. Wathney, 9 Missouri, 636.

In this want of uniformity in the decisions of the other states upon the subject, owing in part to the difference in the statutes of the different states, as well as to the different views taken of the subject, we have in the absence of any previously-established rule in this state, regarded ourselves at liberty to have respect to our own statute and practice, and endeavor to apply to the case such a rule as may, in its general application, seem most in accordance with reason and the rights of the respective parties.

Our statute of June 1, 1824, fixing the rate, and providing for the payment of interest in this state, provides “ that all creditors shall be entitled to receive interest on all money after the same shall become due,"

"until such debt, money, or property shall be paid." The act allowing and regulating writs of attachment, of June,

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