
    ROBY vs. LABUZAN.
    1. The process of garnishment relates only to tbe time of its service; and if there is no indebtedness at that time from the garnishee to the defendant in the attachment, the plaintiff is not entitled to a judgment, although it may appear that between the time of service and answer the garnishee became indebted, and paid the debt to the defendant in attachment. ,
    2. The legal rights only of the defendant in attachment can be reached by process of garnishment, that is, such debts as he can himself enforce by suit at common law, and also, such property as would be liable to seizure and sale under execution against him, if the sheriff could get possession of it.
    3. Before the service of the garnishment, the garnishee had shipped to New Orleans a lot of cotton belonging to the defendant in attachment, on which he had made a large advance of money, to be reimbursed from the proceeds of the cotton when sold. After the service of the garnishment, but before answer, the cotton was sold, and the proceeds were paid to the garnishee, who retained the amount due him for advances, and paid the surplus to one claiming to be the transferree of the defendant in attachment. Held, That the plaintiff was not entitled to judgment against the garnishee, on the above state of facts.
    Error to tbe Circuit Court of Mobile.
    Tried before tbe Hon L. Gibbons.
    This suit was commenced by attachment by tbe plaintiff in error against Aaron H. Jones, and Labuzan was summoned as a garnishee. He appeared and answered, denying generally that be was indebted to Jones, or that be bad any effects of bis in bis possession, and then stated, in substance, tbe following facts: That in February or March, 1851, be shipped, at tbe request of Jones, to tbe firm of Buchanan, Carroll & Co., of New Orleans, a quantity of cotton, on which be bad made a large advance of money, to be reimbursed from tbe proceeds of tbe cotton; that tbe cotton, in pursuance of tbe instructions of Jones, was delivered to him by tbe late firm of Curry, Desmukes & Co., of Mobile, who were tbe agents of Jones in making tbe shipment; and that be, tbe garnishee, paid tbe amount advanced, partly to Curry, Desmukes & Co., and partly to Jones himself; that said shipment was made before tbe service of garnishment, and at tbe date of tbe service bad not been sold by Buchanan, Carroll & Co., nor bad tbe advances thereon made by tbe garnishee been paid; that Jones was a member of tbe firm of Curry, Desmukes & Co., but tbe cotton belonged to bim individually; that at tbe time tbe shipment of tbe cotton was made, Jones directed tbe garnishee to be governed by tbe instructions of Curry, Desmukes & Co. respecting tbe sale of tbe cotton or its proceeds, and to pay to Curry, Desmukes & Co., as bis agents, all further advances on said cotton, or the proceeds thereof. He further answered, that after tbe service of tbe garnishment, tbe cotton was sold in New Orleans, and tbe proceeds of sale remitted to bim; and after deducting therefrom tbe amount of tbe advanees, there remained in bis bands thirteen hundred and eleven dollars, which balance be bad paid over to Edward Curry, a partner of tbe late firm of Curry, Desmukes & Co., unde'r tbe directions given by Jones to tbe garnishee, and on tbe claim of said Curry to be entitled to tbe same, as a partner of tbe late firm of Curry, Desmukes & Co., on tbe ground that such balance bad been transferred by Jones to tbe firm. But tbe payment to Curry was made with tbe understanding, that it should be refunded to tbe garnishee, if tbe funds were adjudged liable to tbe attachment. That after tbe shipment of tbe cotton, tbe firm of Curry, Desmukes & Co. bad been dissolved, and Curry was charged with tbe settlement of its affairs; and that be bad been notified that Jones was indebted to tbe firm in about tbe sum of two thousand dollars.
    Upon this answer, a notice was issued to Curry, requiring bim to appear and contest bis claim to tbe money and tbe validity of tbe transfer by Jones to Curry, Desmukes & Co. Curry and Desmukes appeared, and a question arose, bow tbe issue should be made up. Tbe plaintiff in tbe attachment contended, that Curry & Desmukes should allege tbe validity of tbe transfer, that be might controvert it; but tbe court ruled, that tbe plaintiff should allege that tbe funds were liable to tbe attachment; in response to wbiob, Curry & Desmukes might set out their transfer, and aver its validity. And so tbe issue was made up; but tbe plaintiff excepted. A trial was bad, and several objections were taken to tbe ruling of tbe court, but it is unnecessary, from tbe view taken of tbe case by tbe court, to state them. \
    
      G-eo. N. Stewart and Percy Walker, for plaintiff in error:
    A surplus, after satisfying a previous claim, may be attached. 15 Mass. 490; 1 Pick. 400; 6 Ala. 160.
    The attachment should reach all property in the hands of a garnishee, as well at time of answer as at time of summons of garnishee. Serg. on At. 101 — 88—91.
    The consignee is entitled, always, to retain his own debt, and is liable only for the surplus, as a garnishee. Serg. on At. 82 — 8—93; 16 Mass. 320; 8 Pick. 280.
    It is no objection that the amount is not ascertained. The court will, if necessary, stay the proceedings till sales made, and amount ascertained remaining in garnishee’s hands. 16 Mass. 275 — 8—80; 8 Pick. 280; 3 Murphy, 256; 20 Vermont, 382; 14 Mass. 272.
    Money growing due on a contract may be attached, and proceedings will be stayed till it falls due. Serg. on At. 65 — 94.
    That the goods are out of the State, makes no difference, if under the control of the garnishee. 6 Pick. 358.
    In this respect, the liability of the garnishee would be like that of a defendant in trover. 3 Murphy, 256.
    It is not indispensable that there be a strictly technical cause of action at the time of the commencement of the garnishment .against the garnishee. It is sufficient if he have goods in his possession. 18 Vermont, 590.
    Wat. Gr. JONES, contra:
    
    1. The charge of the court was correct, and the charge asked by the plaintiff was properly refused. The garnishment relates to the present time: that is, to the time of its service. It does not affect funds which might come to the garnishee’s hands after the service of garnishment, though before answer. The Branch Bank at Mobile v. Poe, 1 Ala. 396; Hazzard v. Franklin, 2 Ala. 349 — 351; Payne v. The Mayor and Aldermen of Mobile, 4 Ala. 333. There was no indebtedness of Labuzan to Jones at the time of the service of garnishment. It was then the other way, for Jones was then largely indebted to Labuzan. Whether any funds of Jones’s would ever come to Labuzan’s hands, or whether he would ever be indebted to Jones, was a mere contingency, or a bare possibility, depending entirely on whether the cotton would sell for more than enough to reimburse the advances or not; or, if sold for more, whether the surplus should come to Labuzan’s hands. Such a contingent or possible future debt is not reached by garnishment. 4 Ala. 334.
    2. It is insisted that there was no error in the decisions of the court; but if there was any error, it was one by which the plaintiff could not have been prejudiced, and, therefore, this court will not reverse the judgment, even if there were error. Smith v. Martin’s Exr. 18 Ala. 819 — 821; Smith & Gary v. Aubrey, 19 Ala. 63- — -66; Shehan v. Hampton, 8 Ala. 942' — 947, and cases there cited. This plainly appears from the record. The plaintiff had no right to call in Curry and Desmates on Labuzan’s answer. The statute (Clay’s Dig. 63, §§ 39 and 50,) applies only to cases where the garnishee admits an indebtedness at the time of service, and continuing up to the time of answering, but the right to which he has been notified has been transferred to another. There must be a fund in the garnishee’s hands. If he has paid it over to the transferree, whether rightfully or wrongfully, it cannot be gotten back from the transferree by this mode of proceeding. Here the garnishee denied any indebtedness, and stated that he had paid over to Curry and Des-mukes the proceeds which afterwards came to his hands. It is obvious the plaintiff can never get a judgment.
   DARGAN, C. J.

— The decisions of this court have settled the question, that the process of garnishment relates only to the time of its service; and if there is no indebtedness at that time from the garnishee to the defendant in the .attachment, the plaintiff will not be entitled to judgment, although it may appear, that, between the time of service and answer, the garnishee became indebted, and paid the debt to the defendant in attachment. The Branch Bank at Mobile v. Poe, 1 Ala. 396; Hazard, admr. v. Franklin, 2 Ala. 349; Payne v. The Mayor and Aldermen of the City of Mobile, 4 Ala. 333. In the case cited from 2 Ala., it was said, that even if the garnishee held notes on others belonging to the defendant at the time of the service of the writ, and which were subsequently paid to him, still, as there was no actual indebtedness from the garnishee at the time the garnishment was served, the plaintiff was not entitled to recover. Hazard v. Franklin, supra. It is, however, urged, that these decisions take too narrow and restricted a view of this remedy, and are contrary to the decisions of the other States of the Union, as well as the decisions of England, upon process of this kind, arising out of the custom of London.

I admit that the courts of Massachusetts, Pennsylvania, and some other States, hold a different rule, and, in England; the rule seems to be, that the garnishee may answer or plead immediately, if he has no funds, and thus discharge himself; but if he does not, and waits until he becomes indebted, or has property in his hands belonging to the defendant, he must then answer as to such propertjr or indebtedness: the issue relating to the time of the answer, and not to the time of the service of the process. 3 East, 374.

I confess, that if the question was an open one, I should be disposed to hold in conformity with the English decisions, which have been adopted by most of our sister States in which the question has arisen. But our predecessors have settled the rule otherwise; it has become well known, and has constantly been acted upon, and we must yield to it.

But it is contended that the garnishee, though not strictly indebted at the time of the service of the writ, nevertheless had property in his possession, to-wit: the cotton, and that he is liable for the value thereof, over and above the advances made by him, to Jones, the defendant in attachment. To this argument, I cannot assent. The process of garnishment can reach only the legal rights of the defendant. What I mean by legal rights, is, that it reaches such debts as can be enforced by the defendant in the attachment by suit at common law, and also, such property as would be liable to seizure and sale, if the sheriff could get possession of it.

In the case of Harrell v. Whitman, 19 Ala. 135, we held, that the process of garnishment must be considered as a legal, and not as an equitable proceeding; and therefore, the defendant’s right to the fund or property sought to be condemned, must be a legal, as contradistinguished from an equitable one; and in the course of that opinion, it was said, “If we ever depart from the plain rule, that an attachment and garnishment can. operate only on the legal rights of the defendant, there would be no stopping point, and we should have to go the full length, that equitable rights might be attached by garnishment in a suit at law; and thus a court of law would become invested with cognizance of equitable rights, and bound to ascertain and condemn them, however difficult the task might be, or however incompetent the powers of the court for this purpose.” That decision is well sustained by the previous adjudications of this court, and we feel no inclination to depart from it.

It may, however, be said, that the right of Jones to the surplus, after paying the advances, is a legal, and not an equitable right. I admit it is so, after the money came into the hands of Labuzan, the garnishee; but, considering the cotton as property at the time of the garnishment, and we are bound so to consider it, it is very clear that it could not have been levied on in the possession of the garnishee, who had made advances upon it. The defendant in the attachment had parted with the possession and control of the cotton, and was only entitled, after the sale, to the surplus, if any, after paying the amount advanced to him. In that condition, the cotton was not subject to execution at law, and I do not see how it could be liable to attachment. An attachment can be levied only on such property as is the subject of levy and sale under execution; and if one be garnisheed on the ground that hechas property of the defendant’s in his possession, or under his control, it must be shown that the property is such as is the subject of levy and sale under execution. If, then, we consider the cotton as property in the possession of Labu-zan, it could not be sold under legal process against the defendant, and, consequently, it cannot be'reached by process of garnishment; and if we consider the right of Jones as the mere right to demand the surplus of the money it might bring, after the payment of the advances made by Labuzan, then the decisions we have referred to furnish the decisive answer, that at the time of the service of the writ, there was no debt due from the garnishee to the defendant in the attachment.

It may be, that our decisions have so restricted the operation of this process as to lose some of the benefits that creditors might have derived from it; but we deem it best to adhere to them, and let the legislature extend the remedy.

As we come to the conclusion that the plaintiff is not entitled to a judgment against the garnishee, even admitting that he had paid over the money to Jones himself, or to Curry, Desmukes & Co., as the agents of Jones, it is unnecessary to examine the questions growing out of the contest between the plaintiff and Curry, Desmukes & Co., who claimed to be the transferrees of the money paid by Labuzan to them.

Let the judgment be affirmed.  