
    Norton v. Norton.
    
      Attachment — How interest of stockholder in corporation reached by— When corporation attaching creditor — Effect of attachment where stock has been pledged — Poioer of court to order sale — Application of surplus and dividends — Priority of attachment liens.
    
    1. The interest of a stockholder in the property of a private corporation represented by certificates of shares registered in his name, may be reached by garnishee process served upon' the corporation.
    2. If the corporation is the attaching creditor, it may by such process served upon itself, reach such interest.
    3. Where, prior to the service of such process, the shareholder has pledged the certificates as security for a debt and has delivered them to the pledgee, with an absolute power of sale and transfer upon the books of the corporation, indorsed thereon, upon default of payment of the debt thereby secured, the attachment reaches only the surplus after payment of the debt to the pledgee.
    4. If, after this interest in the corporation has been thus attached, the pledgee does not exercise the power of sale and transfer vested in him, and the stock remains in the name of the pledgor on the books of the corporation, the court may, proper parties being before it, order the sale of the stock, ascertain such surplus, and order its application to the satisfaction of the judgment in attachment.
    5. Such an attachment has precedence over a later one when it is sought to reach this surplus, by garnishee process served upon the pledgee, who has never exercised the power of sale and transfer.
    6. Dividends made by the corporation and remaining in its hands after process in attachment has been served, follow the stock, and are subject to the same order of distribution.
    Error to the District Court of Cuyahoga county.
    This is a contest between two s.ets of attaching creditors of Charles E. Norton.
    The agreed statement of facts upon which the case was heard in the district court is as follows:
    
      “1. Prior to November 23, 1880, Charles E. Norton was the owner of ten shares of the capital stock of the Cleveland Provision Company, a corporation duly organized under the laws of Ohio, of the par value of $1,000 each, making $10,000 of paid up stock, and that said Charles E. Norton absconded and went to parts unknown, on or about November 15, 1880, and has ever since been and still is insolvent.
    “2. That on November 23, 1880, said Charles E. Norton was indebted to said Cleveland Provision Compauy in a sum exceeding $2,000. That on said 23d November said Cleveland Provision Company commenced suit against said Norton in the court of common pleas of Cuyahoga county to recover said indebtedness, and at the time of said commencement obtained, as provided by law, a writ of attachment against the property of said Norton, which was on the same day served by notice of garnishment on said Cleveland Provision Company. That afterwards such proceedings were had in said court that the said Provision Company recovered the judgment and obtained the order in the answer of said company set forth in this action.
    “ 3. That on said 23d November, 1880, and subsequent to the attachment of said Provision Company, the defendant, the Commercial National Bank of Cleveland, commenced its action in the circuit court of the United States for the Northern District of Ohio against said Charles E. Norton, and at the same time obtained a like writ of attachment, which was on the same day and subsequent to the service in the action of said Provision Company executed by serving upon said Provision Company notice of garnishment. That afterwards said bank obtained in said action the judgment and order in its answer set forth. That said bank on said 23d November, 1880, commenced two suits before E. W. Gloddard, a justice of the peace in and for the city of Cleveland, against said Charles E. Norton and others, for the sums stated in the answer of said bank, and at the same time duly obtained writs of attachment, which were duly served by notice of garnishment on said Provision Company, and that the judgments were rendered and orders made by said justice set forth in the answer of said bank.
    “4. That on January 20, 1881, the defendant, C. M. Stone, was the holder of nine of said certificates of stock, to wit: Numbers 12,13, 14, 15, 16, 17, 18, 19, and 20, as pledgee in the manner set forth in his answer; that said certificates were each pledged and delivered to the holders of the notes described in said answers at the respective dates thereof, and remained outstanding in the possession of such holders, or their successors in interest, until delivered to said Stone, prior to January 20,1881, in whose possession they have ever since remained, and that the answer of said Stone correctly sets forth the dates and amounts for which said certificates of stock were respectively pledged.
    “ 5. That certificate No. 11 was by said Norton, on June 4, 1879, pledged to secure the note described in the answer of Joseph Colwell, and that he and those under whom he holds have ever since been in the possession of said certificate No. 11, and that no part of said indebtedness to said Colwell and said Stone has ever at any time been paid, but remains outstanding in full force. That neither said Stone nor said Colwell, nor those under whom they claim title, have at any time attempted to sell or dispose of said certificates or either of them under the power or authority hereafter referred to.
    “ 6. A copy of the certificate held by said Colwell, with power to sell and transfer in blank, is hereto attached, marked A, and made part hereof, and it is agreed that each of the notes and certificates held by said Stone are in like form in every particular except the dates, numbers, and amounts, which are as stated in the answer of said Stone.
    “7. That the plaintiffs duly obtained the judgment set forth in the petition ; that at the commencement of said action, and on J anuary 20,1881, plaintiff’s testator, then in full life, sued out a writ of attachment, which was on the same day executed by serving notice of garnishment on said Stone and said Colwell as the holders of said certificates in manner aforesaid. That plaintiffs obtained the judgment in the petition set forth in said action so commenced with attachment as aforesaid, no part of which has been paid, nor has any part of the judgments in favor of said defendants been paid.
    “ 8. That since the commencement of said several actions by attachment dividends have been declared upon said stock by said Cleveland Provision Company to the amount of $2,100, or more, which are in the hands of said Provision Company and claimed by it to apply on its said judgment.
    “ 9. That the defendant, Thomas H. White, is the owner and holder of the mortgage and note described in his answer, and which mortgage is the first lien upon the lands therein described, and which is also the same land mentioned in the answer of the defendant, the Commercial National Bank, as attached by it at the commencement of its action.
    “ 10. That the plaintiffs, as executors, hold a mortgage upon the same property prior in time to any of said attachments to secure the identical indebtedness upon which their judgment was rendered, and, which is the second lien thereon. That said property is not sufficient to pay said liens, that an order of sale may be had upon the claims of said White, and that plaintiffs in. any event are only entitled to so much of the fund, arising from the sale of the stock as will pay the remainder of their judgment and costs.
    
      “ 11. It is also agreed, that if the case as to the respective rights of the parties growing out of their several attachments shall be by them or either of them, taken to the supreme court for final determination, that in such case said stock may be sold by said C. M. Stone and Joseph Colwell, respectively, at public or private sale, as each may think best, but not for less than par, and that each, after paying himself the amount found due to him with interest and the expenses of sale, and in this action pay the balanee to the clerk of this court, to be by him deposited with the Citizens’ Savings and Loan Association, to stand in the place of the stock, and to be applied as the case shall be finally determined, such sale to transfer title to the purchaser free of all claims by the parties to this proceeding who are thereafter to look to the fund so deposited in place of the stock.
    “ 12. That no transfer of said stock appears on the books of the Cleveland Provision Company, and that neither the Cleveland Provision Company, nor the Commercial National Bank had any notice or knowledge that said stock or any of it, had been pledged, or in any manner incumbered or disposed of by said C. E. Norton, the judgment debtor, before or at the time they commenced their attachment suit. (That C. E. Norton was, previous to his absconding as aforesaid, secretary of said Cleveland Provision Company.)
    “ 13. That the money with which said Stone purchased said claims was loaned to him for that purpose by plaintifl’s decedent in his life time, said decedent taking the note of said Stone therefor, and that the same is now held by the plaintiff.
    “ 14. The following were among the by-laws of the Cleveland Provision Company during all the time herein referred to:
    “ Sec. V. The secretary shall cause the usual record to be kept of all stock subscribed or transferred.
    “ Sec. XL It is mutually agreed by and between the stockholders of this company, jointly and severally, that in case any one of them shall desire to sell his stock, or any part of it, he shall give to the company the option of buying it on the best terms which he can obtain in good faith from a responsible purchaser.
    “ 15. That the Cleveland Provision Company have declared on the stock in controversy the following dividends,! which are still in the hands of the company and unpaid, to-wit: January 3, 1881, $500; July 1, 1881, $400; January 3, 1882, $400; July 5, 1882, $400; January 5,1883, $400.
    
      . “ This action is submitted to the court upon the aforesaid agreement of facts and the pleadings to determine the priority of the liens of the respective parties. There being no dispute as to amounts.”
    The following is a copy of the certificates with the indorsements thereon referred to as Exhibit A:
    “ state oe OHIO.
    No. 11. 1 Share.
    CLEVELAND PROVISION COMPANY.
    Capital Stock, $100,000. Shares $1000 each.
    This to certify, that Charles E. Norton is entitled to one share in the capital stock of the Cleveland Provision Company, transferable only on the books of said company, personally, or by attorney, on the surrender of this certificate.
    Cleveland, O., February 12th, a. d., 1876.
    Benjamin Rose,
    President.
    Charles C. Hill,
    Secretary.
    Countersigned. Geo. B. Christian,
    Treasurer-Registrar.”
    The following is indorsed on back of certificate :
    “For value received......hereby sell, transfer, and assign to...................................................................... shares of the stock within mentioned, and authorize...... to make the necessary transfer on the books of the company.
    Witness, .........hand and seal this........................... of..........................................................18....
    Chas. E. Norton.”
    Upon this state of facts the court found that the pledgees of the stock, Stone and Colwell, have the first liens respectively on said stock, and are to be first paid out of the dividends and proceeds when sold.
    
      These pledgees were ordered to sell the stock by them respectively held, and after payment of the amounts for which it was pledged and the costs, to apply the residue to the payment of the judgments in favor of the attaching creditors, who it was held obtained the first lien by service of garnishee process on the Provision Company, November 20,1880; and second, to judgment in favor of plain tiffs whose attachment was commenced January 20, 1881, and in which Stone and Colwell were served as garnishees.
    The dividends were distributed in the same order. To reverse this judgment is the object of the petition in error.
    
      ■Estep, Dickey ‡ Squire, for plaintiffs in error.
    Charles E. Norton was not the owner or holder of the stock in controversy, or any interest in the same, subject to attachment at the time of the service of notice upon the garnishee, the Cleveland Provision Company, or at any time since. If he had such an interest it was an interest in the proceeds of the sale of the stock in the hands of the pledgees. The stock was in their possession and under their control, rightfully transferred to them for a valuable consideration, and such interest could only be reached by service upon the pledgees.
    In order to create a lien by garnishment, two things are necessary: first, that the debtor is the owner of rights, interests, credits, or property subject to garnishment; and second, service upon the party having in his possession such property, rights, interests, or credits.
    The blank transfer upon the back of the certificates, signed by Charles E. Norton, with the separate power of sale executed by him and the transfer of possession therewith, were sufficient to pass the legal title to the stock. McNeil v. Tenth National Bank, 46 N. Y. 325; Holbrook v. New Jersey Zinc Co., 57 N. Y. 623; Farm. and Mer. Bank v. Wasson, 48 Iowa, 336 ; Broadway Bank v. McElrath, 13 N. J. Eq. 24; Fatman v. Loback, 1 Duer, 361.
    It is admitted that if the debt is not paid at maturity the holder may sell the stock and convey to his vendee both the legal and equitable' title. If so, he certainly has it or he could not convey it. When did he obtain it? It must be remembered that this stock is made personal property by statute. Revised Statutes, sec. 3255.
    If the title did not pass by the original transfer in writing and the delivery of the property to the pledgee, then the title to this property must pass by mere operation of law and without any act or further consent of the original holder to divest him thereof. As between the vendor and vendee the pledgee holds the legal title in trust until the debt secured thereby becomes due. If Charles E. Norton was a stockholder he was a stockholder who did not hold stock. Suppose the officer holding the writ of attachment" could have found the stock in controversy, could he have levied thereon ? The right of possession was in the pledgee as well as certain rights of property therein. What interest in the stock, as stock, as personal property, could the, officer sell?
    It was held in Smyth v. Anderson, 31 Ohio St. 144, that the levy of an attachment upon land, in an action against a devisee, will not defeat or prevent the execution of a power of sale, given by the testator to his executor, nor will such levy affect the title of the purchaser at the executor’s sale.
    If no lien in that case could be created upon the land and the interest of the devisee therein by attachment because of the outstanding power of sale, is it not clear that no lien could be obtained upon the stock in controversy or the interest of Charles E. Norton therein, by attachment, because of a like outstanding power of sale?
    If Charles E. Norton was not the owner of any interest in the stock subject to the attachment, service of garnishment upon the Cleveland Provision Company, the corporation that issued the stock, but did not hold or have the same under its control or in its possession, can create no lien thereon or upon the proceeds of the sale thereof.
    Was the service of garnishment against the corporation, upon a party having property “ in its possession,” belonging to the defendant, Charles E. Norton, within the meaning and proviso of the statute?
    It is claimed by the other side that this question is settled by National Bank v. L. S. & M. S. Ry. Co., 21 Ohio St. 221. We think not. In that ease it appeared that the stock was transferred in fraud of creditors, and as to the creditor who procured the attachment it was void, and was in all respects as if no such transfer had been made. But in the case at bar the transfer was bona fide, for a valuable consideration, and before any of the writs of attachment were issued.
    In the case of Westerman v. Westerman, 25 Ohio St. 500, it is said by Welch, J.: “As to creditors, a fraudulent sale of land is absolutely void. The creditor may levy his judgment upon the land and cause it to be sold for the satisfaction of his judgment, and the fraudulent sale will be held a nullity.” See also Clark v. Hubbard, 8 Ohio, 382; Revised Statutes, sec. 4196.
    In the case of Bradley v. Bauder, 36 Ohio St. 28, 35, in the opinion of the court by Boynton, J., it is said : “ The capital of a corporation, whatever invested in, and the individual shares of stock, are distinct species of property. Harrington v. Tennessee, 95 U. S. 679. The owner of a share of stock owns no part of the capital of the company. Watson v. Spratley, 10 Exch. 236.” If so, then how was the Cleveland Provision Company in possession of any property belonging to Charles E. Norton ?
    By fox-ce of Revised Statutes, sections 5538, 5545, and 5550, in order to ci’eate a lien upon specific property by garixishment, the possession by the garnishee of the property of the debtor must be such that “ the Coui’t may order the delivery of such propex’ty . . . into coux't,” and to bind credits the indebtedness must be due, and such that the coux’t may ox’der it paid into court. With what justice or propriety could the court order in this case, either the corporation served or the pledgees, to deliver this stock into court ? And there is no claim that there was any money due for which an order could be taken.
    
      Section 5547 of the Revised Statutes does not establish the right of the party to create a lien upon stock in a case like the present by serving the corporation as garnishee. It will be noticed that this section only provides the duty of the garnishee. No liability of a garnishee is created by it, and no duty except that of answer and disclosure. A corporation may be required to make known and disclose the condition of its stock register. The maker of a negotiable promissory note, not due, may be required to disclose the facts fully in regard to the same, yet it will hardly be claimed that a lien could be obtained by garnishment, upon the maker of negotiable promissory note, not due, that might thereafter be transferred for value, before maturity, to a bona fide purchaser.
    
      Banney &> Banney, for defendants in error.
    I. At common law stock could neither be levied on nor attached. Low. Trans. Stock, sec. 9; Drake Att., secs. 244, 259. It follows that the right and mode of attaching stock is purely matter of statute.
    Section 5524 o£ the Revised Statutes authorizes the attachment of “ the lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, money, and effects of the defendant.”
    Section 5547, as to the answer of the garnishee, provides that he “ shall answer, under oath, all questions put to him touching the property of every description, and credits, of the defendant, in his possession or under his control, and he shall disclose truly the amount owing by him to the defendant, whether due or not, and in the case of a corporation any stock therein held by or for the benefit of the defendant, at or after the service of notice.”
    A non-resident stockholder in a corporation in this state has property in this state, and such stock is taken in attachment when a notice of garnishment is duly served upon the corporation. National Bank v. Lake S. and Mich. S. R. Co., 21 Ohio St. 221.
    
      The evidence of title to stock in a corporation is not to be confounded with the property. “ These need never be issued at all, as far as the validity of the stock is concerned. A subscriber to stock is bound without them. A transfer of stock is valid and complete, although no certificate is issued to the purchaser. The transferee is individually liable as stockholder in such a case. He has full power to vote and to receive dividends and a complete power to transfer.” Low. Trans. Stock, sec. 109, and see also sec. 143.
    The position of a pledgee of stock in a corporation was directly considered by this court in Henkle v. Salem, Manufacturing Co., 39 Ohio St. 547, where it was held that one who holds shares of stock merely as collateral security for a debt without a transfer to him on the books of the company, it neisher the legal nor equitable owner of such stock.
    Proceedings in attachment reach all interests. In some states only such an interest as can be taken into possession is liable to attachment or levy, but in Ohio the proceedings in attachment are wisely much wider. Carty v. Fenstemaker, 14 Ohio St. 461.
    The general authorities do not speak of the interest of the pledgor in stock as different from other pledges. 4 Kent’s Com. *138; Story Eq. Jur. 1030; Tyler Us. 557, 560 ; Don Passos Stock Brok. 659, 660.
    The pledgor, whether the transaction is such that the legal title passes or not, has the general property. Don Passos Stock Brok. 660, 670; Henkle v. Salem Manufacturing Co., supra; Whelan v. Kinsley, 26 Ohio St. 131.
    It is claimed that there was no interest in the stock left in C. E. Norton, because of the outstanding power of sale. This raises a naked technicality. The power has never been exercised, the stock having been sold only since and in pursuance of the order of the district court.
    The litigated cases as to title under pledges with powers of attorney in blank, generally turn on apparent authority and estoppel (Low. Trans. Stock, sec. 129 et seq), but no such questions are here. Everybody was before the court before there were any complications.
    The cases quoted and cited by counsel for plaintiffs in error, are none of them at all similar to that at bar, and the only possible use of them is to quote chance talk of judges on very different questions.
    II. Could the corporation garnishee itself?
    Section 5530 of the Revised Statutes provides that when a plaintiff', his agent, or attorney, makes oath in writing that “ any person or corporation ” has property of the defendant in his possession, process of garnishment shall issue, etc.
    These terms are very general, and to construe them as meaning “ any other person or corporation,” would do great injustice by excluding from the benefit of the attachment law, a creditor who held in his hands the property of his debtor.
    We cite in support of the proposition. Graighle v. Notnagle, 1 Pet. (C. C.) 245; Coble v. Nonemaker, 78 Pa. St. 501; Lyman v. Wood, 42 Vt. 113; Grayson v. Veeche, 12 Martin, 688; Boyd v. Bayless, 4 Humph. 386; Serg. Att. (2d ed.) 81.
   Johnson, J.

The Provision Company and the Commercial National Bank, claim to have acquired precedence by their actions commenced November 20, 1880, in which the stock of defendant, Charles E. Norton, was garnisheed by service of garnishee process on the Provision Company.

The plaintiffs in error' claim that as this stock was pledged prior to that time in the manner stated, Charles E. Norton had no such title or interest in the stock as could be attached by service of notice upon the corporation issuing the stock, and especially that the Provision Company could not garnishee itself; and, therefore, their service of garnishee process upon the pledgees of the stock in whose hands it was, with absolute power of sale on the 20th of January, 1881, gives to plaintiffs in error precedence.

In discussing this question, it must be borne in mind that the stock in controversy had not been sold or transferred, but only pledged.

The blank form on the back of each certificate signed by Charles E. Norton would indicate that he had sold the stock, the words being: Hereby sell, transfer and assign,” but the fact is, that this form was used to carry out a contract of pledge.

It authorizes the pledgee to sell upon non-payment of the debt secured thereby.

The delivery of certificate thus assigned in blank, was an authority to the holder of the note secured to sell for the purpose of paying the debt. It was intended by the parties as security merely, and not as a transfer of the ownership in the stock.

A distinguishing element of the case at bar is, that the authority of pledgees to sell had not been exercised at the time of final judgment in this case.

The 11th clause of the agreed statement of fact shows that Stone and Colwell were authorized to sell the shares in their hands respectively, and after paying themselves the amounts for which the shares were pledged, to pay the surplus into bank to stand in place of the stock as the court shall finally determine, “ such sale to transfer title to the purchaser free of all claims by the parties to this proceeding who are thereafter to look to the fund so deposited in the place of the stock.”

Upon this state of fact who owned this stock within the meaning of the attachment law, or rather, had Charles E. Norton on the 20th of November, 1880, such an ownership or interest in this stock as was liable to attachment ? If so, was it seized by notice to the corporation as garnishee ?

At common law stock in a corporation was not subject to levy or attachment. The share of stock was neither a chattel nor a chose in action.

By Rev. Stat., sec. 5524, “ The lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, money, and effects of the defendant . . . not exempt by law,” may be attached.

Following the provisions as to service by taking the property attached or by service of the garnishee, is section 5547, as to answer of the garnishee, which provides that the garnishee “ shall answer, under oath, all questions put to him touching the property of every description, and credits, of the defendant, in his possession or under his control, and he shall disclose truly the amount owing by him to the defendant, whether due or not, and in the case of a corporation, any stock therein held by or for the benefit of the defendant, at or after the service of notice.”

It is now settled that a private corporation holds its corporate property in trust for the benefit of its stockholders; that by force of the statute relating to attachments, such stock of a debtor may be taken by notice of garnishment duly served on the corporation, and that the equitable interest of the debtor may be seized by such notice. The National Bank of New London v. L. S. & M. S. R. Co., 21 Ohio St., 221.

The exhaustive discussion of the provisions of our statute found in that case, leaves nothing to be said upon this point.

There the stock was transferred to a third person who claimed to be the owner who had acquired the legal title by transfer upon the books of the corporation. It was charged and proved by the attaching creditors, that such transfer was in fraud of defendant’s creditors.

The court says that the defendant was the equitable owner of the stock, and his interest therein was held by the company in trust for him, which was subject to garnishment.

In the case at bar, the legal title to the stock was in Charles E. Norton, no sale or transfer having ever been .made upon the books of the company. Norton was entitled to vote this stock, and to receive dividends thereon, and was the owner thereof, subject to the payment of the debt to the pledgees. The pledgees were not stockholders, nor individually liable as such, nor as between them in the corporation were they members. Henkle v. Salem Man. Co., 39 Ohio St. 547.

They had the option to perfect their security by having the same transferred to them upon the books of the company. This would have invested them with the legal title, but still as between them and the pledgor, he was the real owner until the power of sale had been exercised by the pledgees, and his interest which was subject to attachment was the value of the stock subject to the payment of the debt for which it was pledged.

Under the authority vested in the pledgees, they could have sold and transferred to a bona fide purchaser the absolute ownership and legal title.

Neither the attachment of November the 20th, by the Provision Company, nor that of January the 20th, by plaintiffs, could defeat the right of these pledgees.

They could have invested their vendees with the absolute ownership of the stock.

Such is the doctrine of Smyth v. Anderson, 31 Ohio St. 144, wherein it was held: “ The levy of an attachment, in an action against a divisee, will not defeat or prevent the execution of a power of sale, given by the testator to his executor, nor will such levy effect the title of a purchaser at the executor’s sale.”

As the power of sale vested in the pledgees was never exercised, and as it was agreed in this case that their interest in the pledge should be first paid, the question before us is, who is entitled to the surplus ?

Aside from any rights acquired by legal attachment, Chas. E. Norton was entitled to .the surplus. Whelan v. Kinsley, 26 Ohio St. 131; Henkle v. Salem Man. Co., 39 Ohio St. 547; Carty v. Fenstemaker, 14 Ohio St. 457. In this last case, which was that of a mortgagee of chattel property, the surplus was subject to attachment.

It was there said if the mortgagee gets possession by consent (in which case it is identical with a pledge), the right of the mortgagor to redeem or to the surplus is beyond dispute.

It is claimed, however, that as each certificate of stock had upon its back a blank bill of sale, with a blank power of attorney to transfer upon the books of the company, this was an absolute transfer of ownership of the stock to the pledgees not subject to attachment by service of garnishee process upon the corporation, and, therefore, the Provision Company and the bank acquired no preference by their attachment.

In support of this view, McNeil v. The Tenth National Bank, 46 N. Y. 325, is relied on. That caséis in authority simply for the doctrine that: “ "Where the owner of property confers upon another, an appai’ent title to, or power of disposition over it, he is estopped from asserting his title as against an innocent third party who has dealt with the apparent owner in reference thereto, without knowledge of the claims of the true owner. The rights of such third party do not depend upon the actual title or authority of the one with whom he dealt, but upon the act of the owner, which precludes him from disputing the title or authority he has apparently conferred.”

All that was held in that case was, that the owner of the stock by conferring upon a stock-broker complete authority to sell and transfer the certificate by indorsing thereon the form of assignment for value received, and an irrevocable power to make all necessary transfer, clothed the broker with apparent ownership which he could transfer to an innocent third pesson, so as to estop the transferrer from questioning the title of an innocent purchaser.

Had these pledgees exercised the power of sale conferred upon them aud sold the stock to such an innocent purchaser, it might be questioned whether service of process upon the corporation would have been effectual to create a lien in favor of the Provision Company. As that power never was exercised, and as these pledgees at the time of the attachments held the stock as an ordinary pledge, subject to attachment as decided in New London Bank v. L. S. & M. S. R. Co., supra, their attachment has precedence over that of plaintiffs’. At most, defendant’s attachment was subject to be defeated by the exercise of the power of sale to an innocent purchaser.

In Secor v. Witter, 39 Ohio St. 218, this court held that the payee of a negotiable note is subject to garnishment, and as against him and those claiming through him, with actual notice of the proceedings in attachment, the right of the plaintiff in attachment is paramount, but such right is liable to be defeated by one who becomes a bona fide purchaser before due of the negotiable instrument.

See also Kieffer v. Ehler, 18 Pa. St. 388; Day v. Zimmerman, 68 Pa. St. 72.

If we concede, therefore, that the power vested in the pledgees would have enabled them by sale and transfer to an innocent purchaser to have defeated the attachment of November 20th, yet, as it was not exercised, the lien of the attachment of that date has precedence.

2. Another question is made, that is, can a plaintiff in attachment garnishee himself? This is a question of statutory construction. By Revised Statutes, section 5530, any person or corporation is liable as garnishee upon due service of such.

This is.broad enough to include the plaintiff, whether a person or corporation.

No good reason can be assigned why an attaching creditor may not reach money or credits in his own hands by garnishee process, as well as any other creditor.

That he may do so is decided .in the following cases : Lyman v. Wood, 42 Vt. 113; Coble v. Nonemaker, 78 Pa. St. 501; see also Drake Att., sec. 543. The same doctrine is supported by numerous authorities cited in Drake.

The dividends made and not paid follow the stock, and are subject to like distribution.

Judgment affirmea.  