
    Ed. H. Martin vs. Samuel Solomons.()
    A garnishee in foreign attachment is not entitled to set off the amount due by him to the absent debtor, against his liability as accommodation endorser of the absent debtor, on a promissory note not due when the writ in attachment was served, although the garnishee, before making his return, and also before the note fell due, paid the note by substituting another in its place.
    BEFORE GLOVER, J., AT BEAUFORT, SPRING TERM, 1855.
    On. tbe 29th. March, 1854, Edmund H. Martin issued a writ in foreign attachment against Samuel Solomons, an absent debtor. On the 30th March, 1854, a copy was served on John G. Solomons; and on the 31st March, 1854, one was served on 'William P. Solomons, as garnishees.
    On the 31st March, 1854, George W. Garmany sued out another writ in foreign attachment against the same defendant, and copies were served on John G. and William P. Solomons on the 7th April, following.
    On the 2nd October, 1854, John G. Solomons made a return “that he has in his possession one old negro man named Sharper, aged about sixty-five or seventy years — one old rifle — and S. J. Davis’ note for thirty-eight dollars and twenty-two cents, dated November 8th, 1852, and payable one day after date, as the property of the said Samuel Solomons: and be further swears that be is informed by tbe said Samuel Solomons, that be, tbe deponent, stands indebted to tbe said Samuel in about tbe sum of four hundred dollars on book account; but of this tbe said deponent cannot speak positively, inasmuch as tbe said books are at this time in tbe City of Savannah. And tbe deponent further swears, that tbe said deponent, before and at tbe time, of tbe service of said writs of attachment, was liable as indorser of tbe said Samuel, who now is indebted to this deponent in tbe sum of three thousand dollars, besides interest, by reason of this deponent’s settling a debt of that amount due by said Samuel Solomons to one
    Hartridge by note, (on which deponent was indorser for said Samuel Solomons,) to wit: by tbe substitution on or about tbe first day of April last, of this deponent’s individual note, with security in lieu and satisfaction of tbe one on which deponent was liable as indorser as aforesaid; and be therefore claims tbe full benefit of tbe premises as a creditor in possession, according to tbe Statute in such, case made and provided ; and further, that except tbe foregoing, tbe deponent bad not, at tbe time of tbe service of said attachment, nor since, any moneys, &c., in tbe bands, possession or power of said deponent.”
    On tbe same day, 2nd October, 1854, Williams P. Solomons made return, “ that be is informed that be stands indebted to tbe said Samuel Solomons in tbe sum of four or five hundred dollars on book account; but of this be cannot speak positively, inasmuch as tbe said -books are at this time in tbe City of Savannah. And deponent further swears, that tbe said Samuel Solomons on or about tbe 10th day of April last, became and now is indebted to deponent in tbe sum of thirty-five hundred dollars, besides interest, by reason of deponent’s settling a debt of that amount due by said S. Solomons to Harper & Stuart by a note on which deponent was indorser for said Samuel Solomons, to wit: by tbe substitution of this deponent’s note, dated 10th March, 1854, with security, in lieu and satisfaction of tbe one on wbicb deponent was liable as indorser as aforesaid. And be therefore claims tbe full benefit of tbe premises as a creditor of tbe said Samuel Solomons according to tbe Statute in sucb case made and provided” — ■ and that be bad no other moneys, &c.
    On the'30th October, 1854, Samuel Solomons confessed a judgment in tbe case of Ed. H. Martin, wbicb was entered up on tbe 31st.
    On tbe 3rd November, 1854, Judge Wardlaw ordered that tbe garnishees have leave to amend their returns by stating tbe sums respectively due by them to tbe said absent debtor, and tbe dates of their indebtedness, and also, to file their declarations as creditors in possession according to tbe Statute in sucb case made and provided, to tbe next term of tbe Court.
    On tbe 1st January, 1855, Samuel Solomons confessed a judgment to Join Gr. Solomons for three thousand one hundred and twenty-six dollars and fifty-eight cents, and one to William P. Solomons for three thousand six hundred and twenty-two dollars and fifty cents.
    On tbe same day, 1st January, 1855, John Gr. Solomons filed bis amended return, “ that since tbe last term of tbe Court be has been furnished with a statement of bis indebtedness to tbe said Samuel Solomons on factor’s-account, by wbicb it appears, that on 6th March, 1854, (when the: account terminates,) the balance against this deponent was one hundred and eighty-three dollars and forty cents, wbicb, to the best of bis knowledge and belief, is tbe whole amount due by him to said Samuel Solomons.. And further, that on 25th January, 1854, tbe said Samuel Solomons made a promissory note, payable to deponent four months after date for three thousand dollars, wbicb was indorsed by deponent for tbe accommodation of said Samuel Solomons, who discounted tbe same and received tbe money arising therefrom to bis own use. That deponent afterwards, to wit: on 4th April, 1854, substituted bis note (with surety) fox tbe principal and interest due on said promissory note, to wit: for tbe sum of three thousand one hundred and twenty-six dollars and fifty-eight cents, and on 6th December, 1854, deponent paid on said substituted note the sum of one thousand eight hundred dollars. He therefore prays that so much of said indebtedness of the said Samuel Solomons to deponent as will satisfy said balance on factor’s account, be set off against the same.”
    On the 15th January, 1855, William P. Solomons made his amended return, “that since the last term of the Court, he has been furnished with a statement of his indebtedness to the said Samuel Solomons on factor’s account, by which it appears that on 16th March, 1854, (when the account terminates) the balance against this deponent was two hundred and ten dollars and sixty-four cents, which, to the best of deponent’s knowledge and belief, is the whole amount due by him to said Samuel Solomons. And further, that on 3rd March, 1854, the said Samuel Solomons made a promissory note payable to this deponent ninety days after date, for thirty-five hundred dollars, which was indorsed by dejaonent for the accommodation of said Samuel Solomons, who discounted the same and received the money arising therefrom to his own use. That deponent afterwards, as stated in his original return as garnishee, substituted his individual note (with sureties) for the principal and interest due on said note, to wit: for the sum of three thousand six hundred and twenty-two dollars and fifty cents, and on 6th December, 1854, deponent paid on said substituted note the sum of two thousand three hundred and forty-one dollars and six cents. He therefore prays, that so much of said indebtedness of said Samuel Solomons to deponent, as will satisfy said balance on factor’s account, be set off against the same.”
    On the 6th April, 1855, the following orders were made, to wit:
    “ On hearing the return of John Gr. Solomons, a garnishee in tbis case, and tbe amendment thereof, and on motion of Davant, Plaintiff’s Attorney, it is ordered that the said John Gr. Solomons, do, within thirty days, pay to the said Edmund H. Martin the sum of one hundred and eighty-three dollars and forty cents; and in default thereof, the said Edmund H. Martin have leave to enter up his judgment against the said garnishee, and issue his execution thereon. It is further ordered, that the said John Gr. Solomons do forthwith deliver to the Sheriff of Beaufort District, the negro named Sharper, the rifle gun, and the note of Samuel J. Davis, which he admits to be in his possession: and that the said Sheriff do advertise and sell the same on the first Monday in May next, and pay the proceeds of such sale to the said Edmund H. Martin.”
    “ On hearing the return of William P.Solomons, a garnishee in this case, and the amendment thereof, and on motion of Davant, Plaintiff’s Attorney, it is ordered that the said William P. Solomons do pay to the said Edmund H. Martin the sum of two hundred and ten dollars and sixty-four cents within thirty days from this date; and in default thereof, that the said Edmund H. Martin have leave to enter up his judgment against the said garnishee,' and issue his execution thereon.”
    John Gr. and William P. Solomons appealed and moved this Court to reverse the orders made, and for leave to credit the amounts severally due by the said John Gr. and William P. Solomons, to the absent debtor, oh their respective judgments against him.
    Because, the garnishees were entitled to retain the property, and especially the debts attached, as creditors in possession.
    The case was first argued in January, 1856, and was rear-gued at this term.
    
      Tillinghast, for tbe motion.
    Tbe object of tbe legislature in passing tbe attachment Acts was to furnish tbe creditor of an absent debtor with a remedy, not to do injustice to others. Hence, our Courts have always given an equitable and not a strict construction to these Statutes. The construction contended for by tbe appellee is inequitable, unjust and opposed to tbe spirit of all our decisions upon this subject. Tbe order at least is wrong — execution cannot issue against a garnishee whose return is contested. Tbe remedy is by attachment, and this is an equitable proceeding and should not be inequitably enforced. 7 Rich. 405. How long should the creditor be allowed for his claim to mature ? According to the custom of London goods coming into the garnishee’s hands after service of the writ, and before plea pleaded, are subject to the lien of the attaching writ. The same principle has been recognized in this State. 2 Mill, R. 456; 1 McMullan, 489; 2 Bailey, 209. The converse of the rule should likewise be true. The garnishee should be allowed to claim as creditor in possession if his debt matures before plea pleaded. To entitle a party to claim as creditor in possession, it is not necessary that his claim should be suable. It will be sufficient if he have the legal evidence of the debt in his possession. In this case the moie-was evidence of the indebtedness of the drawer to the payee.
    
      Fielding, contra.
    A distinction must be taken between a debt, actually existing at the time the writ is served and a mere liability. At the service of the attachment writ, in this case, there was no debt due the garnishee from the absent debtor. The garnishee was, at that time, only contingently liable, in case the insolvent, Solomons, failed to take up his note when it reached maturity. The service of the writ upon the garnishee fixed the rights of the parties, and it was not until after the attaching creditor had obtained a lien upon the funds in the garnishee’s hands, that his (the garnishee’s) contingent liability was converted into a debt by bis payment of tbe note. 3 McCord, 249 ; 3 McCord, 247 ; Harper, 109 ; 4 McCord, 392; 2 Bailey, 135 ; 2 Rick, 548; 4 Rick, 183 ; 3 Yes. Jr., 244; 1 McCord, 480; 2 Bailey, 209 ; 6 Rick, 275; Sergent on Attachment, 103, 104 and 109. Lowndes vs. Lau-rens, 1 Cain, 72; 3 Johnson R., 145.
    
      
      
        (a) This case belongs to Charleston, January Term, 1857, but the copy of the opinion did not reach the reporter in time for its insertion in the proper place. , R.
    
   The opinion of the Court was delivered by

WakdIíáw, J.

The attachment was served after the return day of Spring Term, 1854, and so was returnable in October. At the time when each garnishee was served with a copy, he was indebted to the absent debtor, and was endorser of a note made for the accommodation of the absent debtor, on which he might become liable to pay a sum much larger than his indebtedness. The notes were not then due, but would have become due before the return day of the attachment. After the service of the attachment, and before the notes respectively became due, each garnishee paid the note on which he was endorser, and subsequently, by his return, claimed to be creditor in possession, entitled, under the sixth section of the Attachment Act of 1744, 3 Stat. 619, to retain the sum which, at the service of the attachment, he owed the absent debtor. This claim was rejected, and the appeal presents the question of its validity.

An accommodation endorser has, in that character merely, no lien, general or specific, upon goods or funds in his hands, which belong to the person accommodated. There is in this case no pledge, nor other special property, nor right of factor- or agent to be looked to; and whilst it is admitted that there may be a lien where there is a mere liability without present indebtedness, as there may be security against liabilities incurred and to be incurred, it is unnecessary to consider any such peculiar rights as in the case of the Bank vs. Levy, 1 McMul. 431, guarded the garnishee against the ordinary effect of an attachment.

Where a bond .made by a debtor of the absent debtor is in the bands of a third person, and belongs to the absent debtor, there may be an attachment of such bond before the day fixed for its payment; and there may be process against a garnishee for any money due by him to the absent debtor before the process, although it was not due at the service of the attachment: a garnishee is bound to return everything in his hands belonging to the absent debtor, which he had at the time the attachment was served, or which came to his hands at any time afterwards up to the time of his return, the return being considered equivalent to plea pleaded, under the custom of London. (Smith vs. Posey, 2 Hill, 474.) Whatever may be attached may be retained by a creditor in possession, in payment of his debt. (Mitchell vs. Byrne, 6 Rich. 186.) Prom these propositions it is argued, that mutuality requires that a bond of the absent debtor, not yet payable, should be considered a debt: and that the time for fixing the balance between the garnishee and absent debtor must be the return, provided that only’ liabilities which existed at the time of attachment, and which matured subsequently before the return, shall be considered.

Our Act of 1839 (11 Stat. 62), which, by permitting bail to be required in anticipation, gives a remedy in certain cases of debt not yet due, recognizes what is familiar to the common law, debitum in presentí solvendum in futuro: and when a case shall arise where a garnishee had in his hands, at the service of the attachment, a bond or note of the absent debtor, payable absolutely to himself, which, though not then due, became due before the return, it will be considered whether such garnishee cannot retain, for satisfaction of that bond or note, a debt which he owed the absent debtor at the time of the service. As to goods and monies which came to the hands of the garnishee, after the service of the attachment, and after the bond of the absent debtor had become due to him, the right of the attachment could not have existed one instant before tbe right of tbe garnishee as creditor in possession, and tbe latter right might well be supposed to have that priority, which the sixth section of the Attachment Act gives to it, where the two attach at the .same moment and co-exist. But neither of these cases is now before us.

Our case, considered in the light most favorable to the garnishees, is one where there was, at the service of the attachment, no present debt payable at a future day, but only a present liability, which was contingent and conditional, so that it might or might not have become fixed afterwards. 'The attachment, when served, fastened its lien upon the goods and monies in the hands of the garnishees: and that lien cannot be removed by a contingency subsequently happening, or by a condition subsequently performed, least of all by a voluntary act of a garnishee or an arrangement between a garnishee and the absent debtor, (which two means, last mentioned, suggest the views that might be taken of the case most unfavorable to the garnishees.) The Attachment Act may halve been intended, not to abridge, but to advance the rights of creditors in possession: wherever a creditor might set up a discount against an action ex contractu of the absent debtor, commenced at the time the attachment was served, the right to retain as creditor in possession may be given by the Act, and the right may even go beyond the rules which limit discounts; but in general, the attaching creditor acquires the rights of the absent debtor, existing at the moment of attachment, and if an equity of a creditor garnishee can avail to cause reference to the return, it can only be by reason of something which, at the moment of attachment, existed in such form as required nothing but the efflux of time to make it, before the return, an actionable demand of such garnishee against the absent debtor, the present value of which could at that moment have been estimated merely by discounting the interest.

The point in this case was ruled in Yongue vs. Luten, 6 Rich. 275, with expressions which are adverse to all claims of a garnishee to retain by virtue of anything short of an actual bona fide, debt of the absent debtor, upon which the garnishee might have sued at the time the attachment was lodged: but in that case the garnishee’s return made no mention of his liability, and the liability was, by the act of the garnishee, turned into a demand against the absent debtor, perhaps after the return, certainly after surrender of the property without claim. The ruling has not, therefore, been deemed decisive of this case.

A case of Taylor vs. Gardner, garnishee of Lees, is reported ■in Sergeant on Attachment, p. 103, from the MSS. of Mr. Wallace, which was decided in the Circuit Court of the United States in 1811, by Judge Washington. There the garnishee was endorser of bills, which had been accepted by the absent debtor, and had been protested for non-payment before the attachment; but although payment was made by the garnishee before his return, inasmuch as it was made after the attachment, the ruling was, that the attachment bound the effects just-as it would have done if no payment at all had been made. The Pennsylvania Attachment Act, under which that case was decided, was, as to the rights of creditors in possession and other provisions affecting the case we are considering, similar to our Act. Whether we should go to the full extent of the positions maintained in that case with which Yongue vs. Luten is conformable, may be matter for future inquiry; to the extent of excluding the rights set iq3 by the garnishees now before us, the majority of the Court goes without hesitation.

The motion is dismissed.

WITHERS and WhitNER, JJ., concurred.

Motion dismissed.  