
    [No. 15294.
    Department One.
    July 29, 1919.]
    J. Y. C. Kellogg, Appellant, v. B. J. Witte, Respondent, Otis W. Brinker, Garnishee Defendant.
    
    Bail (10)—Deposit in Lieu op Bail. In the absence of statute, there is no authority to accept cash in lieu of bail.
    Same (10). Rem. Code, § 2089, authorizing the defendant, in lieu of bail, to deposit cash with the clerk of the court to which he is held, applies only to proceedings in the superior court.
    Same (Í0). Laws 1919, p. 153, authorizing justices and committing magistrates to accept cash in lieu of bail has no retroactive effect.
    Garnishment (19) —Property Subject—In Custody op Law. Cash accepted by a justice of the peace in lieu of bail, without any legal authority so to do, is not in custodia legis, and is subject to garnishment.
    Appeal from an order of the superior court for King county, Frater, J., entered December 18,1918, in favor of the defendant, quashing writs of garnishment, after a hearing before the court.
    Keversed.
    
      
      Kellogg, Hyde & Luccock and J. Grattan O’Bryan, for appellant.
    
      
      Reported in 182 Pac. 570.
    
   Tolman, J.

On October 7,1918, appellant, as plaintiff below, filed a complaint against tbe defendant, respondent bere, in tbe superior court for King county, and on tbe same day caused a writ of garnishment to issue in said cause, directed to Otis W. Brinker, Justice of tbe Peace for Seattle Precinct, directing bim to appear and answer as to wbat money or property be bad in bis possession or under bis control belonging to, and wbat indebtedness, if any, be owed to, respondent. Tbe garnishee defendant answered on October 10 that be bad in bis possession tbe sum of $1,500, deposited with bim as such justice of tbe peace by tbe respondent, as bail for one P. B. Witte and one Francis Bernard Witte, in two certain criminal actions then pending before bim, in wbicb tbe state was plaintiff and tbe said Wittes were, respectively, defendants. On October 17, respondent appeared specially and moved to quasb tbe writ of garnishment on tbe grounds that tbe fund in question was not subject to garnishment, and that tbe garnishee defendant was not subject to garnishment. Thereafter appellant sued out and caused another writ to be served upon tbe garnishee defendant, whose answer to tbe second writ was the same as tbe answer to tbe first, and in addition, set forth that tbe criminal proceedings in wbicb tbe money bad been deposited as bail were dismissed subsequent to tbe service of tbe last writ upon bim, but prior to tbe making of tbe answer thereto. Respondent, maintaining bis special appearance, moved to quasb tbe second writ upon tbe same grounds as set forth in bis motion to quasb tbe first, and both motions were beard at tbe same time, resulting in an order granting both motions and quashing both writs; from which order this appeal is taken.

The action of the trial court seems to be based upon the theory that money deposited as cash bail in the hands of a justice of the peace is in custodia legis, and for that reason is not subject to garnishment. But it is contended here that a justice of the peace has no authority to accept money in lieu of bail, and if he does accept it, having no authority to do so officially, he holds the funds as an individual and for the owner, who may recover by suit if a voluntary return be denied. It seems to be generally held that,

“In the absence of statute conferring such right a magistrate or officer has no authority to accept a deposit of money in lieu of bail. ” 6 C. J. 1023.

To the same effect are 5 Cyc. 114 and Brasfield v. Mayor and Alderman of Milan, 44 L. R. A. (N. S.) 1150, to which case is appended a note exhaustively reviewing the authorities, the great weight of which supports the text above quoted. Our statute with reference to bail before a magistrate is as follows:

“The magistrate before whom such accused person shall be brought, when the offense is bailable, may, at the request of such person, with or without examination, allow him to enter into recognizance, with sufficient sureties, to be approved by the magistrate, conditioned for his appearance in the superior court having jurisdiction of the offense.” Rem. Code, § 1951.

Nor had we, prior to the act of 1919, hereinafter referred to, any statute relating to bail before a justice of the peace or magistrate providing any other or different method of giving it. The only statute which we then had on the subject of cash bail in criminal actions was Rem. Code, § 2089, which reads as follows:

“The defendant may, in the place of giving bail, deposit with the clerk of the court to which he is held to answer the sum of money mentioned in the order; and upon delivering to the sheriff the certificate of deposit, he must be discharged from custody.”

A reading of this section, and especially in connection with its context in the act of 1854 (Laws 1854, p. 114, § 80), of which it formed a part, at once suggests that it applies only to proceedings in the superior court; and this court has so held in McAlmond v. Bevington, 23 Wash. 315, 63 Pac. 251, 53 L. R. A. 597. Chapter 76 of the Laws of 1919, p. 153, which was enacted after the termination of the proceedings below, and has recently gone into effect, provides that justices of the peace and committing magistrates may accept money as bail; but it has no retroactive effect, and we must therefore hold that, at the time the writs were served, the garnishee defendant held the money described in his answers in his individual rather than in his official capacity.

The order appealed from is reversed, with directions to proceed in harmony with the views herein expressed.

Holcomb, C. J., Mitchell, Main, and Mackintosh, JJ., concur.  