Webster v. McDaniel
2 Del. Ch. 297
| New York Court of Chancery | 1862
Harrington, Chancellor.

This is a proper case for interpleading, upon the principles which govern that proceeding. Webster owed a .debt by judgment to McDaniel, which was attached by Johnson. After Webster was summoned as a garnishee, but before his answer,execution was levied under the judgment. He was afterward compelled to answer, judgment was rendered against him on his *303answer, and he was obliged to pay the whole of McDaniel’s claim to the sheriff, notwithstanding this judgment. He is thus subject to the claim of both McDaniel and Johnson for the same debt, to the extent of Johnson’s judgment; and he is indifferent as between them. The fund is still' subject to the decree of this Court, having been paid to the sheriff with notice and being still in bis hands. It is, therefore, liable to be litigated between McDaniel and Johnson ; and the complainant, so far as this disputed fund is concerned, is in a position equitably to require its litigation and settlement between them for his protection. The complainant claims, as against another part of the fund now in the sheriff’s hands, to set off in equity his judgment, since recovered against McDaniel; but this claim does not make him obnoxious to the charge of mixing himself up with the contestants’ interpleading, because his claim does1 not apply to any part of the subject of that contest; neither does his delay in answering to the garnishment, under the circumstances, nor the special character of his answer when made,show any such preference for either of the contending parties as will deprive the complainant of his right to the interpleader on the ground of partiality.

On the main point, I think that the debt due by judgment from Webster to McDaniel was liable to be attached in Webster’s hands to satisfy the debt due on the judgment of Johnson against McDaniel. This is in effect the decision in Belcher vs. Grubb. 4 Harring. R. 461; for it cannot be maintained that any species of property, liable to process of foreign attachment, cannot be reached on execution attachment. The principle of that case is that whatever a man owns as a means of. paying his debts may be attached by his creditors ; and there is nothing in this case, arising from the fact that the debt attached is due by judgment, to raise a conflict of jurisdiction or of process, though after the garnishment it was levied by the sheriff under *304execution process; for the whole matter is here under the control of the Court and the fund subject to its order.

I have no difficulty in decreeing the set off. It is true, both these judgments are legal demands. Had they been recovered in the same Court they might have been set off at law under the equitable power of the Court over its own judgments. But,being recovered in different Courts, there is no remedy but in equity, and yet there is an equitable right for which relief ought to be given.

Let a decree be entered that Johnson’s judgment be paid out of the money levied by the sheriff for McDaniel, and also the amount of Webster’s judgment for $18.08, with interest and costs, recovered against McDaniel, which he is equitably entitled to set off against McDaniel’s judgment, now demanded of him ; and that the defendant, McDaniel, pay the costs.

Decree accordingly.