| Wis. | Jun 15, 1856
By the Court,
The main question presented for our consideration in this case is, as to whether the money in the bands of Humphrey, could, under the circumstances, be gar» nisheed by a creditor of Huntley, and we are clear in the opinion that it could not. Stone, who was owing this money to Huntley, placed it in the hands of Humphrey, and the latter promised to pay it to the creditor, Huntley. But this was done without Huntley’s knowledge, concurrence or consent; he knew nothing about this arrangement; had never authorized or requested that the money should be placed in Humphrey’s hands. Humphrey was an entire stranger to him as far as this transaction was commenced.
Now, it is insisted that Huntley could maintain an action of assumpsit for money had and received against Humphrey, and further, that if that action could be maintained, that then Huntley’s creditor could garnishee the money. It may be very true, had Huntley seen fit to ratify this payment of the money to Humphrey, and elected to hold him for it, that he could have maintained his action; and yet, that the money could not be reached by a garnishee process in- favor of Huntley’s creditors, -before such election had been made. We cannot see that one of these propositions legitimately or necessarily follows from the establishment of the other. Conceding that Huntley might have considered Humphrey, instead of Stone, as liable to him for this money, and thus sustained his action against the former; does it show that until this choice was exercised, this ratification had actually taken place, that in any proper §ense it could be said, that the money in Humphrey’s hands belonged to Huntley within the meaning of our statute? We think not. The statute in regard to garnishee process reads as • follows;
“ If the plaintiff or other credible person shall make an affidavit
And section 118 of the same chapter provides that “ the garnishee, from the time of the service of such summons, shall stand liable to the plaintiff in attachment, to the amount of the property, money, credits and effects in his hands, belonging to the defendant, and the amount of his indebtedness to the defendant.” This was a garnishee proceeding upon an execution, but the provision in regard to that, is substantially the same as upon the writ of attachment, and is intended to reach the property, money, credits and effects in the hands of any person, be. longing to the defendant in execution.
Now, the question is, under these provisions of the statute, to whom did this money, in the hands of Humphrey, belong ? It will be remembered that it was placed in his hands by Stone, without the knowledge or consent of Huntley. Huntley does nothing and says nothing from which it can be inferred that he assented to its being deposited with Humphrey, or was willing to release'Stone, and look to Humphrey for these funds. IJn • der these circumstances, can it be said that this money belonged absolutely to Huntley, so as to be garnisheed by his creditors? For it is evident that it must be his money in order to be thus reached. Suppose, for instance, that the money had been lost, or misapplied by Humphrey, who would have suffered from it? We think it very obvious, that it would have been Stone. Suppose Huntley had sued Stone for the money, could the latter have pleaded this payment to Humphrey in bar of the action ? It is equally obvious that he could not.
These questions furnish the true test, to determine to whom this money belonged. It still really belonged to Stone, was given to Humphrey at his own risk, and might, or might not, ever be applied to the discharge of the debt he owed Huntley. At all events the money was still under his control; he could
Prom the view which we have taken of this case, it follows that the judgment of the Circuit Court must be reversed, and a new trial ordered.