
    E. J. M’CAIN, BY NEXT FRIEND, v. HILL, COSSIT & TALMAGE.
    Jackson,
    September Term, 1875.
    1. TOUTS. Officer and party in interest both, liable for wrongful seizure of property under process, when.
    Where personal xu’ox^ertj'-, belonging to a third party, and not the debtor, has been wrongfully and illegally seized by an officer under x>rocess, either execution or attachment, both the officer and the party at whose instance and under whose direction the wrongful seizure was made are liable for the damages consequent on the unlawful act in the conversion by means of a misapplication of legal process.
    Cited with ax^proval: Wiildns v. Gilmore, 2 Hum., 140; Stiles v. Davis, 1 Black, 101; 1 Chit. PL, 185.
    2. SAME. Same. For loss of fund garnisheed in bank, when.
    Where a garnishment by attachment was levied on a fund belonging' to the debtor’s wife, deposited in 'the joint names of the husband and wife in bank, and after the levy of the attachment, the bank failed, whereby the deposit was lost, the party at whose instance and by whose authority the attachment was wrongfully levied, as well as the officer, is liable in damages for the loss sustained.
    
      3. RETURN. Of officer falsified in suit to¡ hold him and the parties interested liable.
    In a direct proceeding to hold the parties liable for the unlawful seizure and conversion by means of a misapplication of leg-al process, the return of the officer is not conclusive, and may be shown to be false.
    Cited with approval: Ridg-eway v. Bank, 11 Hum., 523; Hil-liard on Remedies for Torts, 391.
    4. HUSBAND AND WIDE. Deposit of her money by husband with his, in their joint names, does not affect her rights, when.
    Where a wife places her money, derived from the sale of her land, in the hands of her husband, as her ag-emt t© pay on the homestead on which they then lived, and he deposits the same with other money of his own- in bank in their joint names, her money is still her property, and is not liable to process ag-ainst the husband for his debts.
    
      5. SAME. Same. Levy on deposit by garnishment, and loss by bank’s failure, officer and parties liable, when.
    If the process is against the husband alone, and is actually levied by garnishment, on the joint deposit, as the property of the husband to test the ownership, and the bank so notified, it will be justified in retaining the joint deposit under the process ag-ainst the husband until the further order of the court, and it is its duty to do' SO' and to answer, giving the facts, and if the bank fail in the meantime, the parties making and authorizing the unlawful levy will be liable for the loss.
    Cited with approval: Stiles v. Davis, 1 Black, 101.
    6. SAME. Same. Same. Bill in chancery to- recover loss.
    And in such case the wife, the' owner of the fund wrongfully seized, may maintain a bill in equity against the parties liable for the recovery of the loss sustained. [See now Code, sec. 6109. and notes.]
    7. SAME. Rights in deposit in their joint names subject to seizure.
    Husband and wife may be the joint owners or tenants in common of a deposit in bank, and in the absence of proof to the contrary, each will be entitled to one-half thereof, and each one’s part of such fund is subject to process against the respective owners in proper cases.
    Cited with approval: Drake on Attachments, sec. 572 (citing Theuenlike v. De Wolf, 9 Bickering, 120); Waddell v. Cook, 2 Hill (N. Y.), 47.
    8. TORTS. Wrong-doer cannot defend on possibility of loss without his acl.
    To an action for loss conseqnent on the act of a wrongdoer, be cannot set up in defense the bare possibility of the happening of the loss, if his wrong-ful act had never been done.
    Cited with approval: Davis v. Garrett, 6 Bingh., 713, Sedg-wick on Damages, 83.
    
      9. SAME. Liability for wroug-ful seizure not released Toy release of levy on replevy bond, when.
    Where a liability has once been fixed by the wrongful seizure of property by levy under pirocess of attachment or execution, a release of the levy by the execution of a replevy bond does not release the liability already incurred, unless the injured party accepted the release and thereby waived hjs right to hold the wrong-doer responsible.
   Nicholson, C. J.,

delivered’the opinion of the court:

On the 6th of January, 1868, J. H. McCain deposited in the Gayoso Savings Bank $1,851.04-, to the credit of J. H. & E. J. McCain, the latter being tire wife of the former. On the 11th of January, 1868, J. Ii. McCain checked out $50.00, leaving in bank to his credit -and that of his wife $1,801.04.

On the 16th of January, 1868, Hill, Cossitt & Talmage, creditors of J. TI. McCain, sued out an attachment in the law court of Memphis against him as ¡a nonresident of Tennessee, and procured a garnishment to be served on the Gayoso Savings Bank, whereby all the credits and effects of J. H. McCain in that bank were attached in the bank as garnishee. Under this garnishment the money deposited in the name of J. TI. & E. J. McCain remained in the bank until the 5th of February, 1868, when the bank failed and the deposit became worthless. When the attachment was served the bank officer made an entry on tbe books, “No more checks to be paid.”

On tbe ,12th of January, 1869, E. J. McCain, by ber next friend, J. TI. McCain, filed ber bill in the chancery court at Memphis, to make Hill, Cossitt & Talmage liable for the loss of the deposit aforesaid, upon the ground that the money belonged to her, and not to J. TI. McCain; and that it was lost- in consequence of its being illegally attached, and thereby detained in the bank by tbe procurement of TIill, Cossitt & Talmage until it was finally lost by tbe failure of tbe bank. She alleges that before defendants attached the money they knew it was the property of complainant, and if they did not then know it, they were afterwards so informed, but persisted in claiming tbe right to appropriate it as the property of J. H. McCain.

Defendants seek to avoid responsibility by denying that they knew the deposit in question belonged to complainant, and insisting that they only sought to attach whatever credits or effects J. H. McCain had in the bank; without procuring this specific deposit to be attached, and insisting, also, that when this deposit was attached as the property of J. H. McCain, the responsibility devolved upon the bank, as garnishee, to decide the ownership of the money, and that as the bank continued to hold it until its failure, without deciding its ownership, the bank alone, was responsible, and not defendants.

It is true that the garnishment process sought in general terms to reach whatever credits or effects J. H. McCain had in the bank, but it is equally truq that J. H. McCain had no other deposit in the bank, and that the proceeding was instituted and prosecuted to reach the deposit in the name of J. II. & E. J. McCain, under the assumption that it belonged to J. II. McCain, and the object of the garnishment was to test the ownership of this deposit. On this question the answer is evasive, although the bill charges that the garnishment was instituted to reach this specific deposit; but the proof is satisfactory that this deposit was attached in the hands of the bank, that it was attached as the property of J. II. McCain, and that in so attaching it the sheriff acted under the direction of defendants.

It is clear, therefore, that if the deposit belonged to E. J. McCain, its attachment as the property of J. II. McCain was illegal, and being attached at the instance of defendants, they are equally responsible with the sheriff for the conversion by means of a misapplication of legal process. 1 Chitty Pl., 185; Wilkins v. Gilmore, 2 Hum., 140; Stiles v. Davis, 1 Black, 101.

It is no answer that the sheriff’s return shows only that he attached all the effects of I. H. McCain in the hands of tbe bank. Tbe proof shows only that be attached all tbe effects of J. H. McCain, or that bis return was false, and that in so doing be was controlled by tbe directions of Hill, Cossitt & Talmage.

Tbe trespass ivas in tbe misapplication of tbe process, and this misapplication cannot be evaded by a false or equivocal and ambiguous return. His return is conclusive only as between the parties and privies to tbe suit, but merely prima facie as to all others (Hillard on Remedies for Torts, 393), and in equity may be shown to be false. Ridgeway v. Bank of Tennessee, 13 Hum., 523.

This raises a question as to tbe ownership of tbe deposit. Without looking to tbe deposition of J. H. McCain, tbe husband of complainant, who was incompetent h> testify, we think tbe evidence of josiah Slack shows a prima facie case of ownership of $1,500 of tbe deposit. Slack’s wife bought land in Mississippi, which E. J. McCain claimed, and paid her $1,500 thereon, which he saw J. IT. McCain deposit in tbe bank in the name of J. H. & E. J. McCain. His understanding from the parties was that J. H. McCain had tbe money as agent of E. J. McCain, and it was to go towards paying for the homestead on which they, then lived, and tbe manner of making the deposit shows that he was not depositing the money exclusively on his own account. As this money was. the proceeds of land claimed by E. J. McCain, and was in possession of J. H. McCain as her agent, the presumption is that she was the owner of the money, and it devolved upon defendants to rebut this presumption, by showing that the land belonged to J. IT. McClain, and not to his wife. No such proof is made or attempted, and we are authorized to conclude, that $1,500 of the money deposited belonged to E. J. McCain.

As to the balance of the deposit of $301, there is no 'evidence showing that it was the property of E. J. McCain, except that of J. H. McCain, which is incompetent, and the fact that the deposit is in the name of J". IT. &• E. J. McCain, although complainant alleges (and the fact is-probably so) that it was her money. We must conclude therefore that of the deposit $1,500 belonged to> E. J".. McCain and $301 to J. H. McCain, not as partners, but as joint owners or tenants in common of the deposit.

As J. EL & E. J. McCain did not own the deposit as partners, it was competent for Hill, Cossitt & Talmage, as creditors of J. EL McCain, to subject his share of the deposit by attachment and garnishment of the bank. Drake on Attachments, sec. 572, citing Theuenlike v. DeWolf, 9 Pick., 120. See Waddell v. Cook, 2 Hill (N. Y.), 47.

But instead of seeking satisfaction of this debt against E. El. McCain, by attaching only his share of the deposit, they attached the whole deposit as the property of J. El. McCain, denying the right of E. J. McCain to any part thereof, and insisting’ that J.. H. McCain was the sole owner, although the deposit was in their joint names.

In his testimony, General Chalmers, after stating the unsuccessful efforts made by him as solicitor of E. J. McCain to have the deposit released from the attachment, says: “Soon after the bank failed, I then called bn J. M. Elill, one of the plaintiffs, and told him that the money he had stopped in the Gayoso Bank belonged to Mrs. E. J. McCain, but that if he would give her up the judgment plaintiffs held against her husband (for about $1,400), she would not sue them for the loss of the money. Mr. Elill refused, and said that he was requested to attach the money by Mr. Burford, who was security for McCain, and that Burford was responsible to him; that Burford told him if he did not attach the money, and test the right -of Mr. McCain to it, he would claim a release as McCain’s security.” This evidence shows conclusively that when ETUI, Cossitt & Talmage attached, they were informed as to Mrs. McCain’s claim to the money, that they attached the whole deposit and prosecuted the suit for the purpose of testing McCain’s title to it. Et fixes also the fact that the sheriff acted under the direction of Hill, Cossitt & Talmage in attaching the whole fund, and thus impounding it for their benefit, and that they were not merely seeking to^ reach part of the deposit as J. H. McCain’s portion.

W e therefore think it clear that, although it was competent for them to have attached J. H. McCain’s portion, yet as they attached the whole of it as his property, and procured the sheriff to impound the portion of Mrs. McCain as well as that of McCain, they are responsible for the extent that they acted beyond J. li. McCain’s portion of the deposit, unless they can be relieved, of this responsibility on some of the grounds relied on.

1. The first ground of defense is, that the sheriff was ordered by the writ attach only the credits and effects of J. H. McCain, anid that in fact none other was attached, and that the responsibility rested on the garnishee, the bank, to determine the ownership .of the deposit, and if Mrs. McCain’s money was thus wrongfully detained by the garnishee, the bank alone is liable to her.

This ground of defense is not tenable, either upon the proof or on the law. We have seen that, on attaching the whole deposit, the sheriff acted under the direction of defendants; they assumed that the deposit belonged to J. H. McCain, and had it attached by the sheriff for the purpose of testing his title. After thus procuring the money to be impounded, it does not lie in their mouths to say that it devolved upon the garnishee to determine who was the owner of the deposit. The service of the garnishment fixed the deposit in the bank until it should answer, and upon its answer the question of title could be determined alone by the court This was the legal effect of the garnishment, and the garnishee had no other responsibility but to hold the fund subject to the order of the court, when its answer should be made. In such case the garnishee cam determine the question only at its own risk, and in violation of the duty imposed on him by law. Stiles v. Davis, 1 Black, 101.

2. It is maintained by defendants that failure of the Gayoso Bank, and the consequent loss of the deposit, was not the proximate result, or in any way attributable in a legal point of view, to the serving of the garnishment, requiring the bank to hold the deposit. It is true that the issuing of the attachment, and the serving of the garnishment could scarcely have had any effect in producing the failure of the bank, which was the immediate cause of the deposit becoming valueless. But this is assuming that the deposit would have continued in the bank, if no attachment had issued and been served. This assumption, however, is contradicted by the proof, which shows unusual diligence in trying to have the money released from the garnishment for the purpose of being appropriated in payment of a specific debt. 'We think it fully appears that, but for the garnishment, the deposit would have been withdrawn and the money saved. But, the garnishment was the immediate cause of the continuance of the. money in the bank, and as the bank failed while the garnishment continued to operate, it is manifest that this was the proximate cause of the loss of the money. “No wrongdoer can be allowed to apportion or qualify his own tvrong; as a loss has actually happened while his ‘wrongful act was in operation 'and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss if his wrongful act had neier been done.” Davis v. Garrett, 6 Bingh. Rep., 713; Sedgwick on Damages, 83.

3. The next defense is, that after the garnishment was served the complainant instituted a replevin suit against the sheriff to recover her money, and that the coroner returned that he had replevined the money and delivered the same to complainant, and that this suit was abandoned after the bank failed, and was dismissed for want of prosecution. It is a sufficient answer to this defense that the proof, which is competent,' fullv shows that the return, of the coroner was false, the money never having- been in the hands of the sheriff,' but all the time in the bank under the garnishment. 11 Hum., 523.

4. It appears that on the first of February, 1868, after complainant had failed to get possession of her money by her replevin suit, J. H. McCain executed a replevy bond in the original attachment suit, and the clerk, thereupon, made an order releasing the levy of the attachment. This order is relied on by defendants t,o show that the money was ho longer held by the bank under the garnishment.

This was essential to give it any effect; and even then it would have been no release of the liability of the defendants already incurred by the original trespass and conversion, unless it had been shown that complainant accepted the release, and thereby waived her right to¡ hold defendants responsible. ' No such'proof was made, but on the contrary, the proof is that the money continued in the bank, held by the garnishment,"until the bank failed. Besides, complainant is shown to have been a nonresident, and [after]' the release by the clerk, it does not appear that she could have withdrawn the deposit before the failure of the bank' — some five, days only hairing elapsed before the bank failed.

5. It is not necessary to discuss the effect of his mixing of his'own funds with those‘of E. J. McCain in making the deposit by J. IT. McCain, as this could in no view affect her title to her portion of the money; nor to> allude to the cases in which a party may honestly prosecute an unfounded claim without subjecting himself to damages to' the party so sued. The doctrine of these cases does not apply to damages arising from the wrongful seizure or conversion of the property of third persons.

Upon the whole cáse we are of opinion that complainant is entitled to relief as to $1,500 of the money deposited, and interest from the date of the seizure, against Hill, Cossitt & Talmage.

The decree oí the chancellor will, therefore, be reversed, and a decree- be rendered here for the amount indicated, together with the costs of the canse.

DISSENTING OPINION.

McFarland, J.,

delivered the following dissenting opinion:

On the 6th of January, 1868, J. IT. McCain deposited in the Gayoso Bank at Memphis $1,851.04, in the name- of J. H. & E. J. McCain, E. J. McCain being his wife; $50 was checked out., leaving $1,801.04. On the 16th of January, 1868, J. M. Hill made oath before the clerk of the law court of Memphis, that J. H. McCain was justly indebted to the firm of ITil], Cossitt & Talmage in a sum stated, and that he was a nonresident, or was about to remove himself or his property out of the state, or was concealing" or about fraudulently to dispose of his property. Bpon this a general attachment issued against the estate of J. H. McCain, as we presume, though it does not appear in the record. The record, however, shows what appears to be the return of the sheriff on tire attachment, to wit: “Came to hand on the 16th of January, 1868. There being no property of the defendant in my county on which to levy this attachment, I did on the. 16th of January, 1S68, attach 'in the hands of John C. I.anier, president of the Gayoso Savings Institution, all of the credits and ‘effects of the defendant in said bank.” Signed by the sheriff. There also> appears a replevy bond executed by J. IT. McCain and sureties, and an order of the clerk on the first of February, 1868, to the sheriff to release the levy.

The Gayoso Bank failed in February, 1868, and the fund was lost, and this bill was filed by E. J. McCain, by J. H. McCain -as her next friend, claiming that the fund was her separate estate, and seeking to hold Cossitt, Hill & TaL-■mage liable for its loss, by reason of their having wrongfully attached the same, and thereby preventing her from withdrawing it before the bank failed. She has established, by proof, that $1,500 of the fund belonged to her, but as to the balance the proof fails, and this balance must be taken to be the funds of the husband, J. H. McCain.

The question is, whether or not the act of the defendants in procuring the issuance of the attachment and the service of the above garnishment, was a conversion of that part of the fund shown to belong to Mrs. McCain, or such a wrongful act causing the loss of the fund that they should be held liable therefor.

It seems to me clear that the attachment was properly issued, and the sendee of the garnishment was proper, as it is clear that part of the deposit belonged to McCain, the debtor.

But it is argued that it is wrongful to levy upon the entire fund, and thereby impound it in the bank, and prevent the complainant from withdrawing it before the bank failed.

The question is whether the entire fund was levied on. It will be borne in mind that the attachment was at law against the estate of J. IT. McCain generally. While this particular fund was probably in the minds of the parties, it is not referred to in the affidavit; there is no prayer to attach it. Under this it was the duty of the sheriff to ¡attach the estate of J. II. McCain, or summon his debtor or those having his effects in their hands to appear and answer. The sheriff attempted to summon the bank to answer as garnishee, and for the argument it may be conceded that this was properly done. The action of the sheriff could certainly be nothing more than a summons on the bank to appear and answer as garnishee. The sheriff did not actually attach or take any funds into his possession. Neither J. H. & E. J. McCain had any particular funds in bank, but the bank was their debtor for the amount of the deposit. Now, what was the legal effect of the services of the garnishment upon the bank, to appear and answer whether or not it was indebted to J. H. McOajn or bad any of bis effects in its hands? This would have the effect to prevent tlie bank from paying to J. H. McCain anything it might owe him after the service of the garnishment, but certainly would not have the effect to prevent the bank from paying E. J. McCain anything the hank might owe her. But it is said the bank, not knowing to whom the fund actually belonged, might rightfully retain it all until the question was determined. Tf this were so, I would hold that, as the complainant and her agent axe responsible for the fund being so deposited as to raise this doubt, that the consequence of this should fall upon her. But it should again be remembered that the answer of the bank as garnishee would have been conclusive. This answer could not have been contradicted, and unless the bank had admitted an indebtedness to> J. H. McCain, there could have been no judgment against it. If the bank had answered that it did not know to whom the .fund belonged, and made such a statement as to leave the matter uncertain, there could have been no judgment. This court held recently at this place, that the service, of a garnishment upon one indebted to the execution debtor in an amount sufficient to satisfy the execution, although the service of the garnishment may have operated to prevent the execution debtor from collecting from his debtor until the debt was lost by the latter’s insolvency [still thet execution creditor would not be liable for such loss].

An application to rehear this decision was refused. So that it seems to me cl ear,_ that the service of garnishment has no other effect than to impound in the hands of the garnishee wdiatever sum he may be willing to admit on oath he owes the execution or attachment debtor, or uffiat effects he may be whiling to admit he has in his hands belonging to such debtor. It is to my mind wholly different from an attachment proceeding in equity, where the particular fund might have been specially attached upon the allegation that it belonged to J. H. McCain, the debtor, the bank enjoined from paying it, and the question put in issue by the pleadings as the ownership of the.funds. The question the,n would have been determined by proof, and if it had resulted that the attaching creditor had wrongfully impounded the fund by untruly alleging that it belonged to his debtor, he would be responsible for the loss.

But it is said that whatever may have been the legal effects of the seawice of the garnishment, the proof shows that in fact tire defendants intended to> attach the whole fund, and so directed the sheriff, and the bank understood the whole fund was attached. The proof in substance is, that after the failure of the bank, the defendants admitted that they had sued 'out the attachment at the instance of one Burford, who was the surety of J. H. McCain to them, and that they did it to test J. IT. McCain’s right to this particular fund. But how did they'propose to te¡st his right? Not by an attachment bill, alleging that the fund belonged to'J. IT. McCain, and specially attaching it, but by simply summoning the bank to answer whether it owed J. H. McCain anything, or had any of his effects. What harm could 'there be in this? Suppose they did think they could recover for the whole fund? Suppose they told the bank that they believed the whole deposit belonged to J. H. McCain? Had they not a right to test the question? And when they proposed to leave the whole matter for 'the bank to determine bv its answer, who could be injured? If the bank answered truly, Mrs. McCain could not- be injured; if it answered untruly the attaching creditors were not to blame. In short, here was a deposit in bank in the joint names of J. TI. & E. J. McCain. The. creditors of J. II. McCain believed that the deposit, or some part of it belonged to J. H. McCain, and in point of fact part of it did belong'to' him. To test this question the creditors summon the bank to answer as garnishee, and say how the fact is, and we are told that the creditors could not do this without making themselves liable for the whole deposit, in the event the bank chose to retain it all, and fail pending the garnishment proceedings. If this be true, bow could tbe creditors reach that part of tbe deposit that really did belong to' J. H. McCain, -without making themselves-liable for it all? Must the creditors tell the bank not to detain anything belonging to Mrs. McCain? The bank did not need to be told this, the law settled their duty. Should the creditors tell the bank what part of the fund belonged to J. IT. McCain, and what part to retain? It was simply because they did not know how the fact was that they summoned the bank to answer.

I am very clearly of the opinion that the complainant is not entitled to recover.'

Freeman, Judge, concurs in foregoing dissenting opinion.  