38 Md. 555 | Md. | 1873
delivered the opinion of the Court.
The bond of Milton A. Jones and others, which constitutes the cause of action in this case is a sufficient evidence of debt to support the attachment.
It is a bond conditioned for the payment of money, and although the exact amount it was intended to secure is not stated in the condition, yet this may be certainly ascertained. The instrument contains all the elements or data necessary to enable the Court and jury to ascertain the amount due thereon ; and to justify the appellee in verifying the same by his oath. This is all that is required by our attachment laws, as was decided in Wilson vs. Wilson, 8 Gill, 194, and McAllister vs. Eichengreen 34 Md., 54.
In this case it has been settled by the agreement of counsel, that the amount stated in the affidavit is the true
The garnishee is a trustee appointed hy a decree of the Court of Chancery, and the writ is laid in his hands for the purpose of subjecting to condemnation certain money held by him in that character, alleged to belong to Milton. A. Jones, the non-resident debtor ; but no valid objection to the pi’oceeding exists on account of the fiduciary character of the garnishee, inasmuch as the final audit has heen ratified by the Court of Chancery, and the share, or portion of the fund belonging to Milton A. Jones, or his assignee, has been ascertained, and an order has been passed in that Court direcfcing'the trustee to pay it over. Cockey vs. Leister, 12 Md., 124; McPherson vs. Snowden, 19 Md., 233.
The chief grounds of objection relied on by the appellant are First. That the rights of the appellee to maintain the claim have been finally adjudged and decided against him by the Chancery Court, and that he is thereby estopped.
And Secondly. That by the assignment from Milton A. Jones to Frederick A. Snyder, tile former was divested of all right and interest in the fund, and no part of it is liable to condemnation in the present suit.
These will be disposed of in their order, and first, as to the estoppel. It is very clear to us that this defence cannot prevail. There was no adjudication hy the Chancery Court of this claim upon its merits.
The appellee filed a petition in that Court praying for an order directing the trustee to pay this claim out of the fund in his hands. To this petition a demurrer was filed, which was sustained. But that was merely an adjudication that the appellee was not entitled to relief in a Court of Equity. The decision was obviously correct; because the appellee had no lien or charge upon the fund specifically, and was seeking to enforce in that Court a mere
Secondly. As to the effect of the assignment to Snyder. This appears on its face to be a mortgage only, for the purpose of securing to Snyder the payment of a debt of $300.00.
For that purpose the whole share of Milton A. Jones in the fund was assigned, with a power of attorney, to him to collect the whole. The operation and effect of the assignment was to convey to Snyder, a beneficial interest to the extent of the debt due to him ; and to leave in Jones a similar interest or right to the surplus. This he had the power to assign to another, and it is consequently liable to the process of attachment by his creditors.
Upon the filing by Snyder of the assignment in the Chancery Court, the order to the trustee to pay the fund to him was a matter of course. But the money has not been paid, it still remains in the trustee’s hands ; belonging to Snyder only to the extent of the debt due to him, secured by the assignment, and the surplus belonging to Milton A. Jones, subject to the claim of the appellee, and liable to condemnation under his attachment. The entry of such a judgment in no manner interferes with the jurisdiction of the Chancery Court over the fund. It adjudges and settles the rights of parties thereto, who were not parties in that Court; and the payment of the judgment will be an acquittance to the trustee to that extent, and afford him as full and ample protection as if he had paid it to Milton A. Jones, himself, or to an assignee from him, claiming by assignment subsequent to Snyder’s.
It appears by the record that the counsel of the garnishee were also counsel for Snyder in the Chancery suit. No objection has been made at the bar, on the ground of want of notice to him of this proceeding. Having notice
Finding no error in the ruling of the Superior Court, the judgment will he affirmed.
Judgment affirmed.