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City of New Bedford, 16 Gray, 297; Eastman v. Meredith, 36 N. H. 284. In Burrill v. Augusta, 78 Me. 118, 3 Atl. Rep. 177, it appeared that the officers of the fire department carelessly and negligently left a fire engine standing within the limits of a public street in the defendant city, and, while so standing, drew the fire, and permitted the steam to escape with great noise, whereby plaintiff's horse was frightened and ran away, and plaintiff was thrown to the ground and injured. It was held that she could not recover, on the theory that these officers were performing a public duty, acting on their own responsibility, and that they were not officers and agents of the municipality, in such sense as that defendant was responsible for their acts. Dodge v. Granger (R. I.), 24 Atl. Ref. 100, 15 L. R. A. 781, is another case directly in point. There the members of the fire department left a ladder truck standing so that a ladder projected across the sidewalk in front of an engine house, in consequence of which a passer-by was injured. The city was held not liable, because the members of the fire department were public officers, for whose acts the city was not liable. It was also held that it was the duty of the fire department to take care of its apparatus and keep it in proper condition for use, and that in doing this work it was performing the same duty as when actually engaged in extinguishing fires. Liability of the city for unnecessarily obstructing the street was conceded, but the case did not show any negligence in this respect. Wild v. Paterson, 47 N. J. Law, 406, 1 Atl. Rep. 490, and Welsh v. Village of Rutland, 56 Vt. 228, also involved liability of the city for the negligence of its officers and agents in keeping fire apparatus in good condition and repair; and in each case the city was held not liable for injuries growing out of its negligence in this respect. Negligence of a fireman in opening a door of an engine house so as to strike a passer-by on the sidewalk does not render the city liable. Kies v. City of Erie, 135 Pa. St. 144, 19 Atl. Rep. 942. Acts of a voluntary association of firemen are to be regarded like those of paid firemen, in respect to the liability of a city. Torbush, v. City of Norwich, 38 Conn. 225, 9 Am. Rep. 395. The following cases also add support to our conclusions: Smith v. City of Rochester, 76 N. Y. 507; Thomas v. City of Findlay, 6 Ohio Cir. Ct. Rep. 241; Gillespie v. City of Lincoln (Neb.), 52 N. W. Rep. 811, 16 L. R. A. 349; Pettingell v. City of Chelsea (Mass.), 37 N. E. Rep. 380, 24 L. R. A. 427. The Nebraska case is quite in point, and, following the general tenor of the authorities, it holds that a city is not liable where the injury complained of is due to the negligence of the driver of a ladder truck while exercising a team of horses belonging to the fire department of the city."

JUDGMENT-RES JUDICATA.-In Traflet v. Empire Life Ins. Co., 46 Atl. Rep. 204, decided by the Supreme Court of New Jersey, it appeared

that an intestate died in New Jersey, leaving a life insurance policy, issued in New York by defendant company, payable to his executors, administrators and assigns, and not liable, under the law, for his debts. On the widow's renunciation and petition plaintiff was appointed administrator in New Jersey, submitted proofs of loss to defendant company and demanded payment. Afterwards the widow took out letters in New York and brought suit against defendant, and plaintiff, refusing to intervene, though notified, commenced an independent action against defendant. It was held that, the New York court having first obtained jurisdiction, its judgment could be pleaded in bar to plaintiff's action. The court said in part: "The policy of insurance was a contract made in the State of New York. The amount due on this policy was at the time of the death of the deceased an asset of his estate in the State of New York. The letters of administration issued by the surrogate in New York were duly issued. Whether they are considered as original letters of administration, or administration ancillary to the primary administration in this State, is of no importance. Having been issued by competent authority in that State, the defendant could not challenge the right of the New York administratrix to sue. The New York administratrix, with respect to this cause of action in New York, was the legal representative of the deceased, and not the administrator appointed in this State. The contention on the part of the company is that the payment in satisfaction of this policy in New York is a complete bar to any subsequent suit in this State. If the deceased had his domicile in this State, any personal estate of which he died possessed would be distributed under the laws of this State; but, with respect to assets which were to be collected in another State, letters of administration granted by the courts of this State will be of no avail. To sue for and reduce into possession assets in another jurisdiction, letters of administration in that jurisdiction were necessary, although the assets, when collected, would be transmitted to the administrator in this State, to be distributed under our laws. The New York courts had, unquestionably, jurisdiction of the suit that was brought against the defendant to recover this money, and the suit brought by the New York administrator was first in point of time. The subsequent suit by the administrator in this State was also in all respects regular. Process having been served on the defendant in this State, the court in which this suit was brought had jurisdiction of this cause of action. The court in New York and the court in New Jersey having each jurisdiction over the same cause of action, these proceedings are subject to the well-settled rule in judicial proceedings, that, where there is a jurisdiction in two courts, whether they be courts of the same State or courts of different States, the jurisdiction of the court which is first in time will prevail. The pendency of a suit in a foreign State cannot be pleaded in

abatement to a subsequent suit for the same cause of action in a court of this State, the remedy being by an application for a stay. Kerr v. Willetts, 48 N. J. Law, 78, 2 Atl. Rep. 782. But, when the suit in another State has proceeded to final judgment, the judgment may be pleaded in bar. Barnes v. Gibbs, 31 N. J. Law, 317, is directly in point. The plaintiffs in that case on the 12th of July, 1864, brought suit against the defendant in the Supreme Court of New York to collect certain moneys alleged to be due them. After the commencement of the suit in New York, namely, on the 20th of October, 1864, the plaintiffs brought suit against the defendant for the same debt in the circuit court of the county of Essex. Judgment was entered in the New York suit in favor of the plaintiffs on the 24th of January, 1865. The defendants pleaded in bar to the suit in this State the judgment recovered in New York, and that plea was sustained by this court. The situation of the parties in the case just cited is in all material respects the same as the situation in the present case, and controlled by that precedent conclusive effect must be given to the judgment in New York as a merger of the cause of action which is common to both suits. The decisions of the courts of New York are to the same effect. In Sulz v. Association, 145 N. Y. 563, 40 N. E. Rep. 242, 28 L. R. A. 379, it was held that a suit pending by a foreign administrator who has first duly commenced an action upon a policy of insurance upon the life of the deceased by service of process as prescribed by the laws of this State, is a bar to the second action upon the policy in the courts of New York. It appears that, by the practice in New York, proceedings by the way of interpleader may be had to settle the rights of conflicting claimants to the same fund. Before the administrator in this State could have assumed the status of a claimant, it would have been necessary that he should have obtained capacity to sue in that court. The defendant, pending the New York suit, notified the administrator in this State of the fact before judgment in that court. Having done this, the defendant did all that was necessary. The conflict between the administration in this State and the administration in New York, owing to the conduct of the widow in inducing the administrator here to take out letters, and afterward taking out letters herself in New York, cannot be permitted to prejudice or affect the interests of the defendant. If the administration in New York can be regarded as ancillary to the prior administration in this State, and the money in question is required to be distributed under the laws of this State, the remedy of the administrator in this State is to resort to the courts of New York."

HAS THE GARNISHING CREDITOR A SPECIFIC LIEN?

One who merely reads what has been written on this topic might suppose that no legal question could be more involved in conflict and inconsistent decisions. Judges and textwriters make statements diametrically opposed to each other, and defend them with a zeal which demonstrates the strength of their convictions. But every argument they make and every case they cite or decide, shows the natural limitations of the propositions which they assert in round unqualified terms. When the decided cases are critically examined to ascertain the questions presented for decision, and we consider the answers given to questions, the mists begin to dissolve and the decisions are seen to be in harmony. In his work on Attachment, Judge Drake says: "Garnishment is an effectual attachment of the effects of the defendant in the garnishee's hands, differing in no essential respect from attachment by levy, except, as is said, that the plaintiff does not acquire a clear and full lien upon the specific property in the garnishee's possession, but only such a lien as gives him the right to hold the garnishee personally liable for it or its value." (The italics are mine.) Judge Drake was too careful a writer not to see the difference between dictum and decision. He does not entirely indorse the statement. Judge Wade is less guarded in his statements on this point. says: "It differs from attachment in two important particulars: (1) Its validity does not depend on the officer's taking possession; (2) it creates no specific lien upon the defendant's property in favor of the plaintiff;

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instead of the specific lien the liability of the garnishee is substituted." These propositions are asserted and defended in such cases as McGarry v. Lewis Coal Co.,3 in which a garnishing creditor brought a suit for conversion against an innocent purchaser for value of the steam tug in the garnishee's hands at the time the garnishment was served. It was very properly held that, buying from the principal debtor who owned the tug, and at the same time receiving possession without any notice of the garnishment or objection from the garnishee, the purchaser ac

1 Drake on Attachment, § 453.

2 Wade on Attachment and Garnishment, § 325. 3 93 Mo. 237, 6 S. W. Rep. 81, 3 Am. St. Rep. 522.

quired title against the prior garnishing creditor, whose only recourse now was against the garnishee for the value of the property thus wrongfully released. How a different conclusion could have been reached in such a case is hard to conceive. If one should purchase property under similar circumstance from an execution or attachment debtor after a levy and release by the sheriff and then should be sued in trover by the execution or attachment creditor, the result must be the same. I have searched the books diligently many times during the past year for a case presenting this question, and as yet have been unable to find any; but dicta are common to the effect that the execution creditor's recourse is only against the sheriff for the wrongful release. Another case much relied upon is Walcott v. Keith. In this case one who had received goods in pledge with power of sale and application of the proceeds to secure him as indorser of the note of the owner, brought trover against one of the owner's creditors on whose attachment the goods had been taken from the possession of the pledgee, and who had on demand refused to order the release of them. The principal defenses were (1) that there was not sufficient proof of demand before suit brought, and therefore no proof of conversion; and (2) that plaintiff's special property was not sufficient to enable him to maintain the action. Both of these contentions were decided against the defendant; and, in deciding the second one,although no point appears to have been made of the fact by counsel in their brief, the court said that no objection to maintaining the action existed by reason of the fact that, before the attachment was levied and before plaintiff received the goods in pledge, the person from whom he had received them had been summoned as garnishee of the attachment debtor at the suit of another creditor. The court goes on to say that the garnishing creditor acquired no lien by his process, and the garnishee had waived his right by voluntary release of the property to the plaintiff. All this is aside from the case before the court, and entirely unnecessary to the decision reached, as must clearly appear to the merest tyro in judicial discussions.

That the garnishing creditor acquires no specific lien has also been asserted in dis

4 22 N. H. (2 Foster) 196.

missing a petition in the nature of a bill in equity, filed by the garnishing creditor, asking that a receiver be appointed to take possession of the property in the possession of the garnishee. But in these cases it is intimated that the relief would have been given if the complainants had alleged that the garnishee was insolvent and was disposing of the property, which looks very much like a recognition of a specific lien. A garnishee surrendered goods in his possession to a person who had a mortgage on them, with right of possession when the garnishment was served; but while he retained them the principal defendant gave a second mortgage on them. Later, the garnishing creditor filed a petition in the nature of a bill in equity, making all interested persons parties, and asking that the proceeds of the property after payment of the first mortgage be applied on his judgment. The court gave the surplus to the second mortgagee, because under the law in that State at that time a mortgagor has no interest in the property liable to process, citing a case in which mortgaged property was levied on and a second mortgage given by the mortgagor while the property was in the possession of the sheriff, and adding: "It was there held that the levy of the writs created no lien. In this case if the garnishees had surrendered the property to the officer who served the writ, the latter could have acquired no lien under the rule of the case last cited. Under other decisions of this court no lien on property of this kind can be acquired by

5 McConnell v. Denham, 72 Iowa, 494, 34 N. W. Rep. 298; Silverman v. Kuhn, 53 Iowa, 436, 5 N. W. Rep. 523. Land being attached in an action against the legal owner's grantor, and the legal owner and his tenants being summoned as garnishees, a petition was filed alleging that the garnishees were insolvent, and asking that a receiver be appointed to rent the land and collect the rents till the cause and rights of the parties could be adjudicated. The petition was denied on the ground that it sought the benefits of a creditors' bill. "It is the general rule that such a bill cannot be maintained until judgment has been obtained in the principal action." The statement is also made that no lien is acquired by the garnishment. Clark v. Raymond, 84 Iowa, 251, 50 N. W. Rep. 1068, 86 Iowa, 661, 53 N. W. Rep. 354.

An insurance company and the assignee of the policy being garnished after loss, the assignee gave orders on the fund, and the court held that she was a proper person to summon as garnishee, but had no power by such orders to dispose of the fund and com. pel the creditors to take a merely personal judgment against her, for which reason the fund paid into court by the insurance company was awarded to the gar

process of garnishment."'" In a later case in the same court, the mortgagee in possession being the garnishee, the sheriff took the property from the garnishee on an attachment, depositing the amount of the mortgage. The court held the garnishee to have a lien over and above his mortgage to the amount of the garnishing creditors' demand, and denied the attaching creditors' petition for foreclosure of the mortgage for their benefit.s

A creditor summoned the secretary of a corporation as garnishee, intending thereby to attach stock of the corporation belonging to the debtor. Judgment for the plaintiff was reversed, on appeal by an intervening claimant, because the statute provided that corporate shares might be attached by delivering a copy of the writ to the secretary and informing him of the levy, etc. "This mode has not been adopted in the present case." The court, therefore, declared the proceeding void, but volunteered to add that "whenever the attachment by garnishment is proper and is adopted no lien on property is thereby obtained." One of the most detailed statements of the doctrine that the garnishing creditor acquires no lien is found in Citizen's State Bank v. Council Bluffs Fuel Co.,10 in which the principal question was whether the bona fides of a transfer could be tested by garnishing the assignee; and a verdict against the garnishee on the ground that the assignment was fraudulent was sustained.

Another case frequently cited to the same effect is Johnson v. Gorham," in which the proceeds of property levied on under execution were awarded in an action against the sheriff for refusal to apply the proceeds of the property to the satisfaction of the execution. The sheriff defended on the ground that he found the goods in the hands of a custodian who had been summoned as gar

nishing creditor to the exclusion of the claimant to whom the orders were given, the assignment being fraudulent. Shaver Wagon & Carriage Co. v. Halsted, 78 Iowa, 730, 43 N. W. Rep. 623.

7 Booth v. Gish, 75 Iowa, 451, 39 N. W. Rep. 701. This case is frequently cited to support the claim that the garnishing creditor acquires no specific lien, but the decision was merely that defendant had no interest liable to process.

8 Buck-Reiner Co. v. Beatty, 82 Iowa, 352, 48 N. W. Rep. 96.

9 Mooar v. Walker, 46 Iowa, 161. 10 89 Iowa, 618, 57 N. W. Rep. 444.

11 6 Cal. 195, 65 Am. Dec. 501.

nishee therefor on a judgment in favor of another creditor, and the sheriff asked the court to determine who was entitled to the proceeds. The decision in favor of the levying creditors was affirmed, the court saying: "The service of a copy of execution and notice of garnishment upon a third party constitutes no lien on property of the debtor in his hands capable of manual delivery. It is clear, therefore, that plaintiff was entitled to recover from the sheriff so much of the proceeds of the sale as was sufficient to satisfy his judgment." That my italics show the reason for the decision is demonstrated by a later decision by the same court, in which judgment for defendant was affirmed in an action by mortgagees of a growing crop against a sheriff for seizing the matured crop, under execution on a judgment in an action by attachment, in which the sheriff had served the attachment by giving a copy of it to the attachment defendant, who was in possession. He executed the mortgage later. The attachment in this manner was sustained because the property was, within the meaning of the code, "other personal property not capable of manual delivery." "Personal property not capable of manual delivery which is in the hands of the defendant to the attachment is as much liable to attachment as if in the hands of a third person.

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The garnishing creditor cannot recover in an action against one to whom the garnishee has paid money for the defendant's benefit after the garnishment was served, for the defendant owns nothing specific in the gar. nishee's hands, and the payment does not render the garnishee any less a debtor, so far as the garnishing creditor is concerned ;13 and for the same reason a court of equity will not enjoin the garnishee from making the payment. 14 These cases are also cited to the effect that the garnishing creditor acquires no specific lien. This deduction is so unwarranted that no answer is necessary.

Thus we have nearly completed the long list of cases cited to the effect that the garnishing creditor's lien is not specific, and

12 Raventas v. Green, 57 Cal. 254.

13 Hulley v. Chedic, 22 Nev. 127, 58 Am. St. 729, 36 Pac. Rep. 783. See also Corey v. Webber, 96 Mich. 357, 55 N. W. Rep. 982; Funkhouser v. How, 24 Mo. 44; Haynes v. Gates, 39 Tenn. (2 Head) 598.

14 Pelley v. Dunlap Hardware Co., 99 Ga. 300, 25 S. E. Rep. 697.

have found them invariably without bearing on the question. But there are a few cases which give color to the doctrine and cannot be thus brushed aside with a wave of the hand. Bills filed by garnishing creditors to set aside conveyances of property in the hands of the garnishee as in fraud of creditors have been dismissed on the ground that the creditor has made no levy; and, therefore, has no interest in or lien on the property to enable him to attack the transfer. 15 These decisions might have been based on the creditor's adequate remedy in the garnishment proceedings; for the fraudulent transfer is void at law as well as in equity, and, in the garnishment proceeding, the creditors may annul the covinous title.16 But the decisions were not put on that ground. One more decision and the list is completed, and this seems to me the only unjustifiable decision in the whole category. In Bigelow v. Andress1 the garnishing creditor filed a bill in chancery setting forth that the garnishee was disposing of the goods attached in his hands, and praying that he be enjoined from disposing of them, and that a receiver be appointed to take charge of the property. The bill was dismissed on demurrer on the ground that the garnishing creditor had no claim on or interest in the goods, but only the right to hold the garnishee personally liable for their value. The decision is indefensible from any point of view and stands entirely alone.18 It has usually been held that the garnishee may be enjoined from disposing of the property, and obedience enforced by proceedings for contempt;19 enjoined from taking it out of the State and ordered to pay it into court;20 a receiver appointed to take charge of it if he abandons it; and disposition of the property

15 Wilson v. Harris (Hunt, J., dissenting), 21 Mont. 374, 54 Pac. Rep. 46; Childs v. Carlstein Co., 76 Fed. Rep. 86; Maish v. Bird, 48 Fed. Rep. 607.

16 Custer v. Steever, 36 N. J. Law, 301; Kelley v. Andrews, 94 Iowa, 484, 62 N. W. Rep. 853; Lockland v. Garasche, 56 Mo. 267.

17 31 Ill. 322.

18 In Iowa such an injunction was dissolved on proof tha: the garnishee was amply solvent. Sweet v. Oliver, 56 Iowa, 741, 10 N. W. Rep. 275.

19 Mally v. Altman, 14 Wis. 22; Almy v. Platt, 16 Wis. 169; Bragg v. Gaynor, 85 Wis. 463, 55 N. W. Rep.

919.

20 Jobann v. Rufener, 32 Wis. 195; Germania Savings Bank v. Peuser, 40 La. Ann. 796, 5 South. Rep. 75. 21 Northfield Knife Co. v. Sharpleigh, 21 Neb. 635, 39 N. W. Rep. 788.

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in disobedience of the garnishment summons has been treated and punished as contempt of the court's process, though no other order had been made. 22 The garnishing creditor, who has recovered judgment against the garnishee, may also quit his pursuit of the garnishee, and maintain an action in his own name for conversion against anyone, other than a purchaser for value without notice, who may have obtained the property and converted it to its own use. He may also have a sale by a later levying creditor enjoined. If this be a less lien than is acquired by a levy of an execution or attachment I fail to see wherein and should be pleased to be informed. So much space having been given to explaining dicta indicating that the garnishing creditor acquires no lien, no time will be taken to review those announcing a different rule; but this article cannot be better closed than by quoting a dictum which has the advantage of being sound law, and from a very respectable authority-Chief Justice Shaw of Massachusetts: "The trustee process, 25 provided for by statute, manifestly contemplates two distinct classes of cases, in which a creditor may avail himself of its provisions to secure his debt, by attaching property in the hands of a third person; the one, when the trustee has in his custody, or under his control, goods or chattels, liable by law to be attached on mesne process, by the ordinary writ of attachment; the other, where the trustee is a debtor to the principal defendant, and owes him money, either due and payable presently, or existing as a debt at the time of the attachment, though payable at a future day. Maine F. & M. Ins. Co. v. Weeks, 7 Mass. 438; Swett v. Brown, 5 Pick. 178. This distinction is founded on the statute rendering goods and credits, respectively, liable to attachment. In the former case the attachment binds the goods specifically, creates a lien upon them, of the same nature and to the same extent, as an ordinary attachment on mesne process, although the goods are to

22 Lilienthal v. Wallach, 37 Fed. Rep. 241. But see Maxwell v. Bank of New Richmond, 101 Wis. 286, 77 N. W. Rep. 149.

23 Focke v. Blum, 82 Tex. 436, 17 S. W. Rep. 770; Rockwood v. Varnum, 34 Mass. (17 Pick ) 289; Reed v. Fletcher, 24 Neb. 435, 39 N. W. Rep. 437.

24 Erskine v. Staley, 38 Va. 12 Leigh. 406.

25 This is the name for garnishment in Massachusetts.

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