Branch Bank v. Poe

1 Ala. 396 | Ala. | 1840

COLLIER, C. J.

— The garnishment relates to the present time, and calls upon the garnishee to state what he is then indebted, &c. to the defendant in execution; and consequently, if there is then no indebtedness, &c., though there may be after-wards, the plaintiff is not entitled to judgment. So, if there be an indebtedness at the time of the service of the garnishment, which is increased between that time and the garnishee’s answering, the judgment in favor of the plaintiff must be limited to the sum due when the summons was executed. In stating the law thus generally, we do not intend to be understood as deciding that where a debt is contracted, but not yet matured, that it cannot be reached by garnishment: the law is certainly otherwise. In the present case, only so much of the debt as was due when the plaintiff was summoned, had been contracted. Beyond that amount, there was no debitum in præsenti, solvendum in futuro.

But in the case at bar, without undertaking to inquire whether a corporation aggregate is subject to the process of garnishment, we are satisfied that the answer on which the court acted, did not warrant its judgment. It is not within the scope of the powers ordinarily conferred upon the cashier of a Bank, to appear and defend suit against the corporation. That duty pertains to those to whom the management of its affairs are intrusted. The plaintiff in error being a mere artificial entity, could not answer as such on oath; but should have answered under its common seal, and the seal should appear to have been used either by the express authority of the Directors, or should actually have been used by the President of the Bank, who thus far is the executive officer of the Board.

The answer of the cashier then, not belonging to the appropriate functions of his office, should not have been regarded by the court as a sufficient basis for its judgment.

This view is decisive of the case, and we decline considering the other questions raised at the argument.

The judgment is reversed, and the case is remanded.