Opinion
July Term, 1810.
1. A person summoned as a garnishee may avail himself of any defense which he could make, were he sued by his creditor.
2. A, summoned as a garnishee in a suit between B and C, declared that he had given his bond to C for £ 870; that the debt really due at the time was only £ 801 15 s.; that the bond was given upon an usurious consideration, and therefore void. B urged A to make some contract with C for taking up this bond, assuring him that he might have confidence in C's integrity, and that if he would make such contract C would certainly pay to him (B) the debt which he owed to him; and A believed from B's representations that if he made this contract he would not be called upon by B as a garnishee. A agreed by a day certain to take up his bond and make payment to C, upon his deducting 12 1/2 per cent from the amount thereof. After this contract was made, but before the day of payment agreed on, B sued out an attachment against C, and A was summoned as garnishee. Notwithstanding this summons, A complied with his contract with C and paid the money on the day. On this garnishment no judgment of condemnation will be entered, and the garnishee shall be discharged.
RICHARD RUSSELL sued out an original attachment against Edward P. Davis, then residing in the State of Virginia, and Presley Hinton was summoned as a garnishee, to declare whether he owed said Davis, and if so, to what amount. (469) Hinton appeared, and in his garnishment stated that some time in 1804 he purchased from Davis a tract of land, paid down part of the purchase money, and gave six separate bonds to secure the balance; three of which bonds he had discharged, and as to the other three, he not finding it convenient to pay them as they became due, had entered into a contract with Davis to allow him more than 6 per centum per year upon the money, provided Davis would prolong the time of payment; and the three bonds amounting to £ 801 15s. 0d., currency of Virginia, had been surrendered to him, and he had given a new bond to Davis for the sum of £ 870, like money, and a longer time for payment had been given. He declared this last bond was given upon an usurious consideration. He further stated that some time after this new bond was given, (470) Davis came into this State, and that Davis, Russell and himself had frequent conversations upon the subject of the debt due by Davis to Russell, and also of the debt due by himself to Davis; that Russell urged him to make some other contract with Davis whereby the bond to Davis might be taken in, or, as Russell expressed it, purchased in; alleging that he, Russell, had full confidence that in that event Davis would discharge the debt due to him. That in consequence of Russell's persuasions and solicitations he made a contract with Davis for the taking in of said bond, believing from Russell's representations that he would discharge him from any garnishment in relation to the said bond. That shortly after he had made his contract with Davis as aforesaid, Russell sued out this attachment and had him summoned as a garnishee; that, notwithstanding this summons, he had fulfilled his contract with Davis, and (471) had paid to him £ 500. Being asked what were the terms of the last contract between himself and Davis, he answered that he proposed to Davis to take up the bond by a day certain, if Davis would discount 12 1/2 per cent thereon, and pay him part in cash, part in tobacco, and assign to him bonds on demand for the balance; that Davis acceded to this proposition, and the day of payment happening after he had been summoned as a garnishee in this case, he had, notwithstanding the summons, complied with his agreement and made the payment. Upon this statement of facts, it was submitted to this Court to decide whether the plaintiff was entitled to judgment of condemnation against the garnishee.
From Warren.
The garnishee has stated at full length the nature of the debt, and the amount thereof, due to Davis at the time he was summoned at the instance of the present plaintiff, and the last contract made with Davis, under which he has paid the £ 500 which the plaintiff prays may be condemned for his use. He submits to this Court how far he is liable to the plaintiff's demands. To determine the extent of this liability it may be necessary to consider it on the ground of the debt due to Davis at the time he was first summoned; and, secondly, on the ground of his second contract, by virtue of which the first debt was extinguished or surrendered to the defendant. As to the first, it is a general principle that a garnishee, when summoned by the plaintiff in attachment, is entitled to make every defense against such plaintiff that he would be entitled to make against the original contracting party, had he brought suit. For it is rather a case between them than between plaintiff and garnishee, inasmuch as the plaintiff's right to recover must depend (472) on some existing debt between garnishee and his creditors. If, then, Davis had brought an action of debt upon the bond for £ 870, and Hinton had pleaded the statute of usury (as he has virtually done here), and the evidence showed to the jury that Davis had reserved to himself eight or ten pounds for the forbearance of every hundred pounds attempted to be secured by the bond, the jury must have found that the bond was given on an usurious consideration, and therefore void; and if void as between Davis and defendant, will be equally so between defendant and Russell. On that part of the garnishment, therefore, no doubt can be entertained.
But it is alleged that as defendant, by virtue of a second contract, and after he was summoned as a garnishee in this case, has paid over to Davis £ 500, he is liable to the plaintiff for that amount. This part of the case seems to indicate more than usual skill on the part of the plaintiff to circumvent and ensnare an honest, unsuspecting man. At whose instance was this second contract made? Did it not proceed from the intimations of the plaintiff himself? He recommended this measure to the defendant, at the same time assuring him that he had full confidence in the integrity of Davis, and if this contract was made by defendant, he felt certain that the debt which Davis owed him would be paid. He did not say, in express terms, that defendant should be discharged from his garnishment; but his mentioning, that if defendant made the contract he had full confidence that Davis, in that event, would pay his debt, that owing to these solicitations of the plaintiff, the contract was made, and in full confidence that Russell would look to Davis for his debt, and discharge defendant, seem to be tantamount to an express discharge. For, if defendant was or could be liable, there was no necessity to place any confidence in Davis, because the plaintiff had the law on his side to compel a payment from defendant, let Davis act in any (473) way he pleased. But the case has impressed a belief upon the minds of a majority of the Court that plaintiff, knowing the bond to be usurious, and therefore his remedy gone against the garnishee, induced the defendant to change the nature of his debt to Davis, under a belief which he artfully enforced, that if defendant did so, he should not be called upon as a garnishee; and having induced defendant to make a positive contract with Davis, a contract which, he well knew, defendant would feel himself bound in honor to comply with, he would lay hold of that circumstance to compel a second payment by defendant, by calling upon him as garnishee, after he had promised to Davis the payment of the money in such way that plaintiff well knew as an honorable man he could not decline the payment. If, then, the plaintiff has made such declarations of his reliance upon the integrity of Davis as to induce defendant to pay such sum as was really and honestly due to Davis, but of which Davis had no legal means of compelling payment, he cannot afterwards have any claim on defendant. If he should be made liable, he would be compelled to pay this debt twice, when, without the advice and influence of the plaintiff, he was not liable to pay any part of it. The statute of usury shielded him effectually. The defendant cannot recover back the money which he paid to Davis, supposing it to have been paid upon an illegal consideration. 3 Term, 266; Doug., 468. We are therefore of opinion that no judgment of condemnation ought to be rendered against the garnishee, and that he ought to be discharged.