Mayer & Lowenstein v. Chattahoochee National Bank , 51 Ga. 325 ( 1874 )

McCay, Judge.

1. The act of 1869 is very broad. The garnishee is to answer not only what he was indebted at the time of the service of the summons, but what he has become indebted to the defendant, and what effects he has received or got possession of, of his, between the date of the summons and the answer. A bank which receives a deposit from a debtor clearly becomes indebted to him if it is a general deposit, and has'effects of his if it be a special one, and under the express words of the statute, the summons acts upon and stops it, and any payment to the debtor, or to his order, is at the risk of the bank. This may be very inconvenient, and we can well see how such a law may often work hardly, ancf be an injurious restriction on the dealings of men who owe debts. Put the law-making power lias seen fit to declare its will in. the matter, and it is not for the courts to alter it.

2. The only question there can be in this case is whether these deposits, made, as each was, for a special purpose, and under an express agreement between the debtor and the bank that they were made and received to pay certain specified checks which the debtor had drawn or would draw, continued the property of the debtor. The case in 15 Georgia Reports, of Pace vs. The Trustees of Howard College, 486, it seems to us, settles this question, fit was there held that the deposit continued the property ofxhe depositor until the bailee paid, or promised the person for whose use it was deposited to pay it. And this is undoubtedly the general rule: Owen vs. Bowen, 4 C. & P., 93, 96; Cobb vs. Beeke, 6 Q. B., 930; Surtees vs. Hubbard, 4 Esp., 203; Wharton vs. Walker, 4 B. & C., 163. The exceptions to the rule are special cases, as where the person to whom the money is ordered to be paid is interested in the consideration, or has himself procured, or directed, or agreed, that the deposit shall be made for his benefit. In such cases the depositor may be considered only as the agent of the party at interest in making the deposit and in contracting with the bailee for its delivery or payment to the true owner or beneficiary, and he, the depositor, loses control over it immediately on the deposit. In fact it is not his deposit at all, but left for the true owner by him as agent: Lampleigh vs. Braithwhite, 1 Smith’s L. C., 67; Hut., 105; Townsend vs. Hunt, Cro. Car., 408; 11 Ad. & E., 452; Curtis vs. Collingwood, 1 Vent., 297; Martin vs. Hind, Cowper; 437; 3 B. & C., 462; 5 Dow. & Ry., 319; 4 B. & C., 664. See Addison on Contracts, page 941, where this subject is fully discussed and the authorities cited. There is no proof in this record going to show what were the relations of the checkholder to this deposit, except that the depositor declared at the time of making the deposit that the money was to he paid to the check. Whether the person to whose benefit it was deposited directed it to be done, or procured, or agreed that it should be done, or was in any \vay interested in the consideration, does not appear. Aa the case stands it is simply a case of a deposit of money by A, to be paid to his own order or to some third person, and is within the rule laid down in 15 Georgia. As soon as the deposit was made the bank became the debtor of the defendant, and the summons of garnishment operated upon it. In the case of Pace it was declared that if the depositee paid or promised the usee to pay before revocation, the property of the depositor would be divested. In the present case the question must turn on the nature of the deposit at the time it was made, and whether, at that time, the property was in the depositor, since, if it was his then, the garnishment immediately covered it. As we have said, that depends on whether the third person was interested in the consideration, or procured, or directed, or agreed that the deposit should be made to his use. In that case the depositor, in making the deposit, might fairly be said to be acting, not for himself, but for the checkholder. The entries in the book, by which it appears that the deposit was made to the credit of the depositor, would seem to militate against this; but that is only one mode of arriving at the truth, and may be rebutted by proof of the real truth of the case. As it is, we feel constrained to reverse the judgment.

Judgment reversed.