« AnteriorContinuar »
property into his possession;' and on the other hand, that any residuum in the bands of the receiver may be attached, as the property of the beneficiary in the trust whose distributive share it is, and that the attachment may be levied upon it for the purpose of holding it, even before the receiver has rendered his final account, - a decision which seems contrary to sound principle.
8 7813. Attachment of Shares by Garnishment against Corporation. — "In Virginia, where proceedings in attachment may be at law or in equity, it is held that stock in a corporation is an estate liable to seizure by attachment; and for the purpose of such proceedings, the stock may be regarded as in possession of the corporation, and may be reached by the creditor of the owner, by process of garnishment.". The same mode of procedure exists in Tennessee, where there is a statutory remedy in the court of chancery. But this mode of procedure is not general, and clearly does not exist upon any sound principle relating to remedial justice, except where it is given by express statute. We have already had occasion to consider the nature of shares of stock, and in whatever light this species of property may be viewed, it is perfectly clear that it cannot be viewed in the light of a fund in the hands of a corporation, belonging to the shareholder. The
Farmers' Bank v. Beaston, 7 Gill
thorities seem to concur in holding & J. (Md.) 421; 8. c. 28 Am. Dec. 226. receivers and similar officers liable to
* McPherson v. Snowden, 19 Md. garnishment, when they have in their 197; Groome
Lewis, 23 Md. 137; hands a definite sum to which the 8. C. 87 Am. Dec. 563.
defendant or the judgment debtor is • Upon the question of the right to clearly entitled, and the officer has attach by garnishment the distributive nothing more to do with the fund share of a fund in the hands of a receiver, than to pay it over. Some of them master in chancery, or other judicial may go beyond, but none, so far as trustee, see Wade on Attach., 3 424; they have been examined, fall short
Lamon, 2 McArthur of this conclusion." (D. O.), 172; Williams v. Jones, 38
• 2 Wade Attach., $ 342; citing Ma. 555; Weaver v. Davis, 47'111. Chesapeake &c. R. Co. o. Paine, 29 235; Langdon v. Lockett, 6 Ala. 727;
Gratt. (Va.) 502. 5. c. 41 am, Dec. 78; ante, g 6934.
5 Montidonico v. Page, 10 Heisk. Judge Wade, reviewing these author
(Tenn.) 443. ities, concludes by saying: “The au- Ante, 98 1071, 2767.
Van Riswick o.
corporation is indeed a qualified trustee for the shareholder for the protection of his legal title to his shares;' and in the discharge of this trust is bound to see that the shares stand in his name on its books, and is liable for a conversion of them if it wrongfully transfers them to the name of another. But the title and right of the shareholder are not that of a part owner of a joint fund, but that of a several owner of an intangible chose in action, of which the corporation is not, except in the qualified sense just explained, the custodian. It must follow from these considerations that corporate shares cannot be attached by a notice of garnishment served upon the corporation, except in those cases where a statute expressly gives that peculiar form of remedy.'
$ 7814. Garnishment of Member of Mutual Insuranco Company. - In like manner, unpaid assessments upon their premium notes, due by the policy-holders of a mutual insurance company, are subject to garnishment by creditors of the com. pany. When, therefore, a person insured has suffered a loss under his policy, and the company, in order to meet that loss, makes an assessment upon the premium notes of its members, the insured, upon failing to receive the amount due him, may, after reducing his claim to judgment, provided the company still remains solvent, issue (in Pennsylvania) an "attachmentexecution" against the amount of unpaid assessments still in the hands of the members of the company, and against the amount of assessments collected by an agent of the company,
· Ante, 2486.
distinct amount at the time when the • Ante, $ 2487, et seg.
garnishment is served. Ante, $ 3578. • Ante, f8 1071, 1073.
See also Pease v. Underwriters' Un• Planters' &c. Bank v. Leavens, 4 ion, 1 Ill. App. 287; Faull v. AlasAla. 753; Ross v. Ross, 25 Ga. 297. ka &c. Co., 14 Fed. Rep. 657; 8. C. 8 The garnishment of stockholders as Sawy. (U. S.) 420; Peterson v. Sindebtors of the corporation stands on a clair, 83 Pa. St. 250, and cases there totally different footing; and here, cited. That shares of stock are not as already seen, they are liable to subject to attachment without the aid garnishment where a call has been of statute, see Haley v. Reid, 16 Ga. made and duly notified, so that they 437; Foster v. Potter, 37 Mo. 525. are indebted to the corporatiou in a
but not paid over by him.' In Pennsylvania, - and no reason is perceived why the rule should not be general,
a cred. itor of a mutual fire insurance company, who has reduced his claim to judgment and issued an "attachment-execution" thereon, and summoned a member as garnishee, who is indebted to the company on his premium note for his proportion of loss sustained, but the amount of which indebtedness has not at the time been fixed by assessment, acquires a lien upon such indebtedness and a right to preference in distribution where & receiver is subsequently appointed by a decree of a court dissolving the corporation, although the assessment is levied by such receiver.” In other words, the debt due by the member to the company upon his premium note is capable of being seized in attachment, although the amount of it has not yet been fixed by an assessment, and although such amount is subsequently fixed by an assessment made by a court receiver for the general purpose of a judicial administration.'
§ 7815. Garnishment of Insurance Companies before Adjustment. - Where a loss has happened under a policy of insurance, and a creditor of the insured seeks to impound, by attachment and garnishment, the debt which thereby accrues to him from the insurance company, the question of his right to proceed will depend upon the question whether the circumstances have occurred which would entitle the insured to maintain an action against the company to recover the amount which has become due under the policy. But the mere fact that there has been no adjustment of the loss would not seem to oppose an obstacle to a garnishment by the insurance company;" for the adjustment is the act of only one of the parties to the contract, and the right of the insured to recover does not depend upon that act, but depends upon the terms of the contract, and the fact of the loss. Besides, if the amount of the debt were not ascertained, it would nevertheless, on principle and
Lycoming &c. Ins. Co.,
1 Hays o. 98 Pa. St. 184.
• Hays o. 99 Pa. St. 621.
Lycoming &c. Ins. Co.,
• Hanover Fire Ins. Co. v. Connor, 20 Ill. App. 297.
authority, be capable of being impounded by attachment and garnishment, so as to fix a lien upon it, which would hold the amount which might be ascertained to be due. Many statutes relating to garnishment provide in terms for the attaching by garnishment of debts not yet due; but it has been justly held under such a statute that it refers only to claims which are already fixed in amount, or capable of being fixed, and which are not dependent for their validity or amount on anything to be done or earned in future, or on a continued liability which may be changed by events. If this principle is applied to the garnishment of the amount due by an insurance company under a policy where a loss has taken place, and if, by the terms of the policy, the company is allowed a stated time within which to rebuild or repair, which time is not expired at the time of the service of the garnishment, then the attaching creditor cannot proceed, provided the rule of the jurisdiction is that he must proceed upon the statement of facts existing at the time of the service of the garnishment, and not upon that existing at the time of the disclosure or the trial. Similarly, it has been held that where the policy contains the usual provision for notice to the company in case of loss and for the submission to the company of proofs of loss by the assured, these provisions must be substantially complied with, unless waived by the company, for they are conditions precedent to the right of the assured to maintain an action on the policy; and consequently, until they are complied with, or waived, he cannot maintain his action, and his creditor cannot impound the debt by garnishment.'
8 7816. Garnishment of Such Companies where the Policy has been Assigned. - Some peculiar questions have arisen, in proceedings by garnishment against insurance companies, growing out of the relation subsisting between the company and the policy-holder. It has been held, for instance, that
· Hays v. Lycoming &c. Ins. Co., 99 Pa. St. 621.
3 Vogel v. Preston, 42 Mich. 511.
28 Mich. 201; Godfrey v. Macomber, 128 Mass. 188. See also McKean v. Turner, 45 N. H. 203.
• Gies v. Bechtner, 12 Minn, 279.
where an insurance company is summoned as garnishee in an action against a policy-holder, premiums due on policies previously assigned by the policy-holder with the consent of the company, cannot be set off against the amount due by the company on account of the loss.' And where insurance poli. cies were assigned with a stipulation that a portion of the proceeds should be paid by the assignee to a third person, it was held that the assignee could not be charged as garnishee of the third person. Where a policy of insurance on goods at sea was assigned by the policy-holder to bis creditor, and the goods were lost, and subsequently a creditor of the policy. holder proceeded by garnishment against the insurance company, which had not received notice of the assignment, it was held that the assignment was sufficient to vest an equitable right in the assignee, and that the company could not be charged. Where the creditor of a policy-holder proceeded by garnishment against the insurance company to reach an amount due under a policy which was made payable to a third party was his interest should appear,” and his interest appeared to be that of a mortgagee of the insured property, under & mortgage which was not recorded, it was held that the mortgage was sufficient to uphold his right to the insurance money, to the amount actually due under the policy. But here, stress
' was laid upon the fact that the mortgage had been made in good faith. It would have been open to the garnishing creditor to contest the right of the mortgagee to the fund, upon the ground that the mortgage was fraudulent as against creditors.
$ 7817. Garnishment of Corporation Formed by Concurrent Action of Different States. — Corporations formed by the concurrent legislation of two or more States to build and operate an interstate bridge, or an interstate railway, are, as
Cleveland o. Clap, 5 Mass. 201. ' Field v. Crawford, 6 Gray(Mass.), 116.
• Wakefield v. Martin, 8 Mass. 558.
• Coykendall v. Ladd, 32 Minn. 529; 8. C. 21 N. W. Rep. 733.
6 North Star Boot & Shoe Co. v. Ladd, 32 Minn, 381; 8. C. 20 N. W. Rep. 334.