President of the Farmers & Merchants' Bank v. Franklin Bank

Alvey, J., delivered the opinion of the Court. In regard to the facts upon which the prayers of both parties were based, there seems to be no dispute; and upon the hypothesis that the credit attached belonged to Mitchell and Oliver, two of the defendants in the attachment, the Court below instructed the jury that it was competent to the garnishee to appropriate such credit to the payment of a debt against the defendants, which had been contracted before, but did not fall due until after the laying of the attachment, and before trial. And in thus instructing the jury, we think the Court did not err. ⁴¹² There is nothing in the attachment law of this State to justify the conclusion that it was designed, by allowing garnishment to be made, to place the garnishee in a worse position, in reference to the rights and credits attached, than if he had been sued by the defendant. The attaching creditor seeks to have himself substituted to the rights of his debtor as against the garnishee, and-by laying his attachment, he acquires no superior right to that of his debtor.

The right of condemnation must, therefore, be subject to any such right of set-off or discharge existing at the time of garnishment, as would be available to the garnishee if he were sued by the defendant. Any other rule would, in many cases, work gross injustice, and might, moreover, be 'subject to great abuse. "What, then, were the rights of the garnishee in respect of the fund attached, if it had been sued for by the defendants, Mitphell and Oliver ? As against them, there could be no question of the right of the bank to retain the amount on