
    *Baltimore & Ohio R. R. Co. v. Gallahue’s Adm’rs.
    July Term, 1858.
    Lewisburg.
    Attachment — Garnishment—Case at Bar. — The estimates of work done by a contractor for a railroad company, are made up to the 20th ot each month, when they are considered due, though not paid for some days afterwards. As the price of the work done by the contractor after the 20th may be forfeited to the company for several causes, before the 20th of thenext month, no debt is due from the company to the contractor until the 20th arrives: and therefore an attachment being served on the company on the 14th of the month, there is nothing then in its hands due to the contractor which may be attached, though in fact no forfeiture occurs, and on the following 20th of the month the amount of the estimate may be due.
    
    
      This is the sequel of the case reported 12 Gratt. 6SS. When the cause went back the parties agreed the facts. From this it appears, that the coitrse of business in respect to the contracts between the Baltimore and Ohio Rail Road Company and the defendants in the action, P. and F. C. Crowley, was for the company through its engineers to make the monthly estimates of work done on the 20th day of each month, and payments upon these estimates were made *about the 10th of the next month. The estimates made on the 20th of December 1851 were paid by the company prior to the service of the attachment; which was served on the 14th of January 1852. The estimates made on the 20th of January 1852 were also paid by the company, but after the service of the attachment, and the amount of work done by P. and F. C. Crowley between the 20th of December 1851 and the 14th of January 1852, and which was embraced in the estimates of the 20th of January, after deducting one-fifth according to the terms of the contract, was two thousand one hundred and fifty dollars. The contracts under which the work was done, were set out at length; but the provisions of them which affect this case are stated by Judge Samuels in his opinion.
    It was agreed that if the work done between the 20th of December 1851 and the 14th of January 1852, was liable to the attachment ; or if the attachment was a lien upon the earnings of said Crowleys, under said contracts up to the end of two months subsequent to the 14th of January 1852, there should be a judgment for the whole amount of the plaintiffs’ debt. But if the attachment did not operate, as a lien upon the earnings of said Crowleys between the 20th of December and 14th of January, nor upon any earnings subsequent to the 14th of January, then the judgment in favor of the plaintiffs should be for three hundred and nine dollars and seventy-six cents, the amount admitted in the answer of the company, but with costs to the company.
    Upon this agreed state of facts the court rendered a judgment against the Baltimore and Ohio Rail Road Company for one thousand and sixty-six dollars and seventy-nine cents, and interest, the whole amount of the plaintiffs’ claim. Whereupon the company applied to this court for a supersedeas; which was allowed.
    *Russell, for the appellant.
    Ha3'mond, for the appellees.
    
      
      See principal case cited and approved in Strauss v. R. R. Co. 7 W. Va. 375; Wagon Co. v. Peterson, 27 W. Va. 336.
      The principal case was cited in Joseph v. Pyle, 2 W. Va. 452, 453, as to the form of the judgment.
    
    
      
      Code, cli. 151, § 12, p. 003. “The plaintiff shall have a lien from the time of levying of such attachment. or serving a copy thereof, as aforesaid, upon the personal property, choses in action and other securities of the defendant against whom the claim is, in the hands of or due from any such garnishee on whom it is so served, and on any real estate mentioned in an endorsement on the attachment or subpoena, from the suing out of the same."
      § 17. “When any garnishee shall appear, he shall be examined on oath. If it appear, on such examination, or by his answer to a bill in canity, that at or after the service of the attachment he was indebted to the defendant against whom the claim is, or had in his possession'or control any goods." &c., “the court may order him to pay the amount so due by him," “to such person as it may appoint as receiver," &c.
    
   SAMUELS, J.

When this case was formerly before the court, it was decided, 12 Gratt. 655, that the plaintiff in error was such a party as might be a garnishee under process of attachment.

It is alleged by the plaintiff’s counsel in this court, that the Circuit court erred at its June term 1857, and also at a previous term, in refusing leave to the garnishee to file an amended answer to the attachment. The decisions of this court have settled the practice that a party alleging error in the ruling of a Circuit court, must show the error on the face of the record; that the court here will intend that the Circuit court decided correctly, unless the contrary appears. In our case the record shows the fact that at some term prior to that of June 1857 the leave had been refused; but why the leave was asked, or what support was offered to-sustain the application, is not shown. At June term 1857, when leave was ag-ain asked and refused, the cause was ready for trial; and if an amended answer had been received, it would have presented a new issue, and might have caused a delay of the trial. In this state of the case, it was incumbent on the plaintiff to have shown an excuse for its delay in asking leave; and this was not done nor attempted to be done. It is unnecessary, however, for any purpose in this case, to decide whether the amended answers should have been filed, inasmuch as the parties have themselves agreed the facts of the whole case, thereby dispensing with the necessity for an answer, issue, or trial by jury. The case, as it now stands, presents only a question of law as to the time and state of facts at and under which the garnishee became liable, if liable at all, to the attaching creditor, and the amount of that liability.

parties, in their agreement of facts, set out at length the contract between Crowley (the defendant in the attachment) and the garnishee (the plaintiff here). This contract, amongst other things, provides in substance that if Crowley should not well and truly from time to time comply with and perform all the terms therein before stated and stipulated, on his part, in manner and form and within the time thereinbefore mentioned; or in case it should appear to the chief engineer that the work did not progress with sufficient speed; or in case of interference -with said work by legal proceedings, the chief engineer should have power to annul the contract, if he saw fit to do so; of -which three days’ notice in writing should be given to Crowley, when the agreements on the part of the company, and every clause thereof, should become null and void; and the unpaid part of the value of the work done should be forfeited by the said Crowley to the use of the companj’-. The parties further agree, that if the value of work between December 20th, 1851, and January 20th, 1852, under the contracts, is liable to the attachment, then the attaching creditor should recover of the garnishee the full amount of their debt, interest and costs: so in regard to work done to the end of two months subsequent to 14th January 1852. But if the attachment did not operate as a lien upon the earnings between 20th December 1851 and January 14, 1852, or upon earning-s after January 14, 1852, then the judgment in favor of the attaching creditor should be rendered for three hundred and nine dollars and seventy-six cents, but with costs in favor of the garnishee.

In the case of the Baltimore and Ohio R. R. Co. v. McCullough & Co., 12 Gratt. 595, this court affirmed the general principle j that the terms of a contract, such as that in our case, must be complied with before a debt can arise out of it. in that case, the terms that a release should be executed cotemporaneously with *the receipt of money estimated as haying been earned, not having been complied with, the court held that the contractor himself, or his creditors standing in his place, could not enforce payment of the money. In our case, the performance of labor by Crowley for the garnishee, after 20th December 1851, and before 14th January 1852, did not of itself put the garnishee in the condition of debtor to Crowley; for by the terms of the contract, if Crowley should not well and truly, from time to time, comply with and perform all the terms thereinbefore stated and stipulated, on his part, in manner and form, and within the time therein mentioned; or in case it should appear to the chief engineer that the work did not progress with sufficient speed; or in case of interference with said work by legal proceedings, the chief engineer should have power to annul the contract, if he saw fit to do so, of w'hich three days’ notice in writing should be given to Crowley, when the agreements on the part of the company', and every- clause thereof, should become null and void, and the unpaid part of the value of the work done should be forfeited by Crowley to the use of the company. Thus, at the time of service of the attachment, 14th January 1852, it was uncertain and dependent upon future events, whether any amount whatever would be due for labor performed between 20th December and 14th January; nor is the case change! by the fact that the contract continued in force and was complied with by Crowley, and that on the 20th January the garnishee became indebted in the amount estimated as due for labor from 20th December to 20th January. This debt was of the latter date only; it cannot be divided into parcels, and one parcel held to be due as of the 14th, and the other of the 20th January'; the debt was entire, and was wholly dependent upon events which could not be known before 20th January. The same reasons show that Crowley’s ^'earnings, at any time after 20th January, could not create a debt as of the 14th January, the time of serving process.

The statute, Code of 1849, ch. 151, | 1, p. 600, makes “debts due” the subject of attachment ; | 7 makes service by copy on a party “indebted to the defendant,” a sufficient service ; 'i 9 directs the officer to return with the attachment the names of persons “owing debts to the defendant;” | 11 prescribes the mode of proceeding under attachments in equity, W'hereby ‘ ‘debts due or to become due” to the defendant, are made the subject of attachment, to be executed in the same manner and to have the same effect as af law; i 12 creates a lien on attached effects, which lien under the obvious construction of the statute is the same, whether created under process of law or equity. This lien can affect only such subjects as exist when the attachment is levied or served; it is impossible to conceive the existence of a lien without a subject. The judgment or decree of the court satisfies the lien by applying the subject in the hands of the garnishee to the debt due the attaching creditor. The sections of the statute above referred to subject a “debt” to process of attachment ; such debt may be due and payable at once, or it may be due and payable at a future time; but to constitute a debt, there must be a time of payment. It has been said, however, that | 17 extends the operation of the attachment to a subsequent time, and to debts not in existence at the time of levying or serving the attachments, but subsequently coming into being. This construction seems to be at war with the general principles of law regulating the liability of property to pay debts; if this be a case of the kind, it is perhaps the only case in which a subject is bound by process not levied or leviable on it, and this after the return day of the process. Drake on Attachment, ch. 26, $ 555 to 559. inclusive.

*In this, a common law case, we can decide only according to the law governing common law courts : if a different rule shall prevail in chancery courts, it must be so decided in a case before such court.

I am of opinion to reverse the judgment of the Circuit court with costs, and to enter judgment against the plaintiff, the garnishee, for three hundred and nine dollars and seventy-six cents, the amount confessed to be due to Crowley, but with costs of the Circuit court to the plaintiff.

The other judges concurred in the opinion of Samuels, J.

Judgment reversed.  