Opinion · Supreme Court of the United States

Harris v. Balk

198 U.S. 215

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1905-05-08
Topic
general

How later courts describe this case

  • addressing personal jurisdiction of garnishee, the Court held that debts have no locus or situs but accompany the account debtor everywhere
  • permitting attachment of debts temporarily and adventitiously located in the forum state, even though debt was created elsewhere
  • establishing notice rules for recognition of judgments under the Full Faith and Credit Clause
  • “The obligation of the debtor to pay his debt clings to and accompanies him wherever he goes”
  • “It ought to be and is the object of courts to prevent the payment of any debt twice over.”
  • power to enforce payment of a debt depends on jurisdiction over the debtor

Citator

UpLaw has not yet analyzed Harris v. Balk. The absence of a flag is not a finding that it is good law.

Authority status
pending
Cited by
397 opinions

Headnotes

  1. Civil Procedure — Choice of Law Attachment is a creature of local law; if the law of a State provides for the attachment of a debt, the court acquires jurisdiction over a garnishee who is found in that State and personally served with process therein, and may garnish and condemn the debt due from him to the plaintiff's debtor, provided the garnishee could himself have been sued by his creditor in that State. 198 U.S. at 222-223
  2. Civil Procedure — Choice of Law The question of jurisdiction to garnish a debt does not depend on the so-called original situs of the debt or on whether the garnishee's presence in the State is temporary or permanent, because the obligation to pay a debt clings to and accompanies the debtor wherever he goes, and may be enforced by the courts of a foreign State after personal service of process therein. 198 U.S. at 222-223
  3. Constitutional Law — Full Faith and Credit A judgment against a garnishee, properly obtained according to the law of the State in which it was rendered and paid, must under the Full Faith and Credit Clause of the Federal Constitution be recognized as a payment of the original debt by the courts of another State in an action brought against the garnishee by the original creditor.
  4. Civil Procedure — Choice of Law The right of a creditor to attach a debt in a foreign State depends on the right of the original creditor to sue his debtor in that State, because the attaching plaintiff in such a proceeding acts as a representative of the creditor of the garnishee and may garnish the debt if the municipal law of the State where the attachment is sued out permits it. 198 U.S. at 226-227
  5. Civil Procedure — Choice of Law Where the garnishee is absolutely without defense and the plaintiff is legally entitled to the judgment, the garnishee's consent to a judgment impounding the debt does not amount to a voluntary payment that would deprive him of protection under the Full Faith and Credit Clause. 198 U.S. at 227
  6. Civil Procedure — Choice of Law A garnishee owes a duty to give his creditor notice of the levying of the attachment so that the creditor may have an opportunity to defend the claim, and the garnishee's failure to give such notice constitutes a neglect of duty that prevents him from availing himself of the garnishee judgment as a bar to the creditor's suit, thereby obliging him to pay the debt twice. 198 U.S. at 228-229
HARRISv. BALK,198 U.S. 215(1905)
25 S.Ct. 625
HARRISv. BALK.
ERROR TO THE SUPREME COURT OF THE STATE OF NORTH CAROLINA.
No. 191.
Argued April 4, 1905.
Decided May 8, 1905.
A citizen of North Carolina who owed money to another citizen of that State, was, while temporarily in Maryland, garnisheed by a creditor of the man to whom he owed the money. Judgment was duly entered according to Maryland practice and paid. Thereafter the garnishee was sued in North Carolina by the original creditor and set up the garnishee judgment and payment, but the North Carolina courts held that as the situs of the debt was in North Carolina the Maryland judgment was not a bar and awarded judgment against him.Held, error and that: As under the laws of Maryland the garnishee could have been sued by his creditor in the courts of that State he was subject to garnishee process if found and served in the State even though only there temporarily, no matter where the situs of the debt was originally. Attachment is the creature of the local law, and power over the person of the garnishee confers jurisdiction on the courts of the State where the writ issues. A judgment against a garnishee, properly obtained according to the law of the State, and paid, must under the full faith and credit clause of the Federal Constitution, be recognized as a payment of the original debt, by the courts of another State, in an action brought against the garnishee by the original creditor. Where there is absolutely no defense and the plaintiff is entitled to recover, there is no reason why the garnishee should not consent to a judgment impounding the debt, and his doing so does not amount to such a voluntary payment that he is not protected thereby under the full faith and credit clause of the Constitution. While it is the object of the courts to prevent the payment of any debtPage 216twice over, the failure on the part of the garnishee to give proper notice to his creditor, of the levying of the attachment, would be such neglect of duty to his creditor, as would prevent him from availing of the garnishee judgment as a bar to the suit of the creditor, and thus oblige him to pay the debt twice.
THE plaintiff in error brings the case here in order to review
the judgment of the Supreme Court of North Carolina, affirming a
judgment of a lower court against him for $180, with interest, as
stated therein. The case has been several times before the
Supreme Court of that State, and is reported in122 N.C. 64;
again,124 N.C. 467; the opinion delivered at the time of
entering the judgment now under review, is to be found in
130 N.C. 381; see also132 N.C. 10.
The facts are as follows: The plaintiff in error, Harris, was
a resident of North Carolina at the time of the commencement of
this action in 1896, and prior to that time was indebted to the
defendant in error, Balk, also a resident of North Carolina, in
the sum of $180, for money borrowed from Balk by Harris during
the year 1896, which Harris verbally promised to repay, but there
was no written evidence of the obligation. During the year above
mentioned one Jacob Epstein, a resident of Baltimore, in the
State of Maryland, asserted that Balk was indebted to him in the
sum of over $300. In August, 1896, Harris visited Baltimore for
the purpose of purchasing merchandise, and while he was in that
city temporarily on August 6, 1896, Epstein caused to be issued
out of a proper court in Baltimore a foreign or non-resident writ
of attachment against Balk, attaching the debt due Balk from
Harris, which writ the sheriff at Baltimore laid in the hands of
Harris, with a summons to appear in the court at a day named.
With that attachment, a writ of summons and a short declaration
against Balk (as provided by the Maryland statute), were also
delivered to the sheriff and by him set up at the court house
door, as required by the law of Maryland. Before the return day
of the attachment writ Harris left Baltimore and returned to his
home in North Carolina. He did not contest the garnishee
Page 217
process, which was issued to garnish the debt which Harris owed
Balk. After his return Harris made an affidavit on August 11,
1896, that he owed Balk $180, and stated that the amount had been
attached by Epstein of Baltimore, and by his counsel in the
Maryland proceeding Harris consented therein to an order of
condemnation against him as such garnishee for $180, the amount
of his debt to Balk. Judgment was thereafter entered against the
garnishee and in favor of the plaintiff, Epstein, for $180. After
the entry of the garnishee judgment, condemning the $180 in the
hands of the garnishee, Harris paid the amount of the judgment to
one Warren, an attorney of Epstein, residing in North Carolina.
On August 11, 1896, Balk commenced an action against Harris
before a justice of the peace in North Carolina, to recover the
$180 which he averred Harris owed him. The plaintiff in error, by
way of answer to the suit, pleaded in bar the recovery of the
Maryland judgment and his payment thereof, and contended that it
was conclusive against the defendant in error in this action,
because that judgment was a valid judgment in Maryland, and was
therefore entitled to full faith and credit in the courts of
North Carolina. This contention was not allowed by the trial
court, and judgment was accordingly entered against Harris for
the amount of his indebtedness to Balk, and that judgment was
affirmed by the Supreme Court of North Carolina. The ground of
such judgment was that the Maryland court obtained no
jurisdiction to attach or garnish the debt due from Harris to
Balk, because Harris was but temporarily in the State, and the
situsof the debt was in North Carolina.
Mr. George W.S. Musgrave, with whomMr. Sylvan HayesLauchheimerwas on the brief, for plaintiff in error:

Garnishee judgment was properly entered so far as practice in Maryland is concerned.Cockeyv.Leister,12 Md. 124;Garnerv.Garner,56 Md. 127;Buschmanv.Hanna,72 Md. 1,5; Maryland Code, Art. IX, § 34.Page 218

As to the question of thesitusof a debt, there has been much controversy and a great diversity of opinion, but the weight of authority is that the position taken by the Supreme Court of North Carolina was wrong.

A debt is something which (in the absence of some written evidence) exists only in contemplation of law. It is merely the right one person has to ask or demand of another a certain amount of money or other property; an incorporeal right, invisible, intangible and without substantive existence.

Thesitusof a debt for the purposes of garnishment is not only at the domicil of the debtor, but in any State in which the garnishee may be found, provided the municipal law of the State permits the debtor to be garnished, and provided the court acquires jurisdiction over the garnishee through his voluntary appearance, or by actual service of process upon him within the State. Minor on Conflict of Laws, § 125.

This is supported by a long line of cases, the most important of which are the following:Chi., R.I. Pac. R.R. v.Sturm,174 U.S. 710;Tootlev.Coleman, 107 F. 41;Mooneyv.Buford Mfg. Co., 72 F. 32;Morganv.Neville,74 Pa. 52;Savinv.Bond,57 Md. 228;Nat. Ins. Co. v.Chambers,53 N.J. Eq. 468;Harveyv.Railroad,50 Minn. 405;Wyethv.Lang,127 Mo. 242;LancashireIns. Co. v.Corbetts,165 Ill. 592;Embreev.Hanna, 5 Johns. 101;C., B. Q. Ry. v.Moore,31 Neb. 629;Hullv.Blake,13 Mass. 153;Blakev.Williams, 6 Pick. 286;Harwellv.Sharp,85 Ga. 124;Neufelderv.Ins. Co.,6 Wn. 341;Mooneyv.Railroad Co.,60 Iowa 346;Howlandv.Railroad Co.,134 Mo. 474;Railroad Co. v.Thompson,31 Kan. 180;Railroad Co. v.Crane,102 Ill. 249;Fithianv.Railroad Co., 31 Pa. 114;Wabashv.Dougan,142 Ill. 248;Berryv.Davis,77 Tex. 191[77 Tex. 191];Nicholsv.Hooper,61 Vt. 295;Samuelv.Agnew,80 Ill. 553;Richardsonv.Lester,83 Ill. 55;B. O.S.W. Ry. v.Adams, 60 L.R.A. 396;Campbellv.Home Ins. Co., 1 S.C.N.S. 158;Gloverv.Wells,40 Ill. App. 350;Rochev.Ins. Co.,2 Ill. App. 360Page 219;Moorev.C., R.I. P. Ry.,43 Iowa 385;Cochranv.Fitch, 1 Sandf. Ch. 142;Mahanyv.Kephart,15 W. Va. 609;Hollandv.M. O. Ry.,84 Tenn. 414;Pomeroyv.Rand, McNally Co.,157 Ill. 176;Colev.Flitcraft,47 Md. 312;Bankv.Merchants' Bank, 7 Gill (Md.), 415;Brenglev.McClellan, 7 G. J. (Md.) 434;Newlandv.Reilly,85 Mich. 151;Felt Millv.Blanding,17 R.I. 297;Cohoonv.Morgan,38 Vt. 236; Black on Judgments, §§ 593, 857, 859, 923; Rood on Garnishment, §§ 242, 245.Mr. John H. Smallfor defendant in error:

The Maryland court, in the garnishment proceeding ofEpsteinv.Balkand Harris, garnishee, was without jurisdiction, and the judgment can be collaterally attacked in the courts of North Carolina.

The jurisdiction of the Maryland court may be attacked in this action, even to the extent of contradicting the recital contained in the record.Thompsonv.Whitman, 18 Wall. 457;Knowlesv.Gaslight Coke Co., 19 Wall. 58;Kilbournv.Thompson,103 U.S. 198;Noblev.Union River Logging Co.,147 U.S. 173; 1 Greenleaf on Evidence (Lewis edition), § 548. If Balk had no property in that State the Maryland court was without jurisdiction.Pennoyerv.Neff,95 U.S. 714.

Facts essential to establish the jurisdiction of the State court must appear affirmatively by allegation or affidavit before the process of the court can issue authorizing the attachment or garnishment of theres.

While the debtor (the defendant) and the garnishee are both non-residents, no garnishment process can issue against such non-resident temporarily in the State at the instance of a plaintiff domiciled in the State. A non-resident cannot be held as garnishee. Rood on Garnishment, p. 21, note 5, § 15.

One who is only temporarily in a State and in which he does not reside cannot be subjected to garnishment. Waples on Attachment and Garnishment, 227; Drake on Attachment, 5th ed., § 474;Everettv.Conn. c. Co.,4 Colo. App. 513.Page 220

Where personal jurisdiction cannot be acquired over the defendant on account of his being a non-resident the plaintiff cannot garnishee a non-resident while temporarily within the State. 14 Am. Eng. Ency. Law, 2d ed., 803, note 2; and as to custom of London, see p. 815, note 2;Petersv.Rogers, 5 Mason, 555.

A state court cannot issue garnishment process against a non-resident temporarily in the State, and if such process is issued the court is without jurisdiction unless it is made to appear that he has in his possession tangible property of the defendant or is bound to pay the defendant money or deliver him property within the State.Penna. R.R. Co. v.Rogers,52 W. Va. 250; S.C., 62 L.R.A. 178, and notes p. 182-187.

That the garnishee is a non-resident and only temporarily within the State is a jurisdictional question and not personal to the garnishee. Shinn on Attachment and Garnishment, 860, § 491;Rindgev.Green,52 Vt. 204. So as to service of summons.Goldeyv.Morning News,156 U.S. 518.

As to effect of collusive and voluntary payment by garnishee seeBaldwinv.Gt. Nor. Ry. Co., 51 L.R.A. 640; S.C., 64 L.R.A. 625. Garnishment statutes are strictly construed as against the party resorting to the remedy.State Bankv.Hinton, 1 Dev. Law (12 N.C.), 397. A garnishee who has paid under an invalid judgment cannot plead the same in bar.Merriamv.Rundlett, 13 Pick. (Mass.) 511; Rood on Garnishment, § 208.

The Maryland court could not garnishee a non-resident temporarily within the State. See act of legislature of Maryland, 1868, ch. 471, § 211, under which a citizen of Maryland cannot sue a non-resident and garnishee a foreign corporation doing business in Maryland when the cause of action or contract of insurance was not consummated in Maryland.Myerv.InsuranceCo.,40 Md. 595;Cromwellv.Insurance Co.,49 Md. 366.Chicago c. Ry. v.Sturm,174 U.S. 710, does not apply.Page 221
MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.
The state court of North Carolina has refused to give any effect in this action to the Maryland judgment; and the Federal question is, whether it did not thereby refuse the full faith and credit to such judgment which is required by the Federal Constitution. If the Maryland court had jurisdiction to award it, the judgment is valid and entitled to the same full faith and credit in North Carolina that it has in Maryland as a valid domestic judgment.

The defendant in error contends that the Maryland court obtained no jurisdiction to award the judgment of condemnation, because the garnishee, although at the time in the State of Maryland, and personally served with process therein, was a non-resident of that State, only casually or temporarily within its boundaries; that thesitusof the debt due from Harris, the garnishee, to the defendant in error herein was in North Carolina, and did not accompany Harris to Maryland; that, consequently, Harris, though within the State of Maryland, had not possession of any property of Balk, and the Maryland state court therefore obtained no jurisdiction over any property of Balk in the attachment proceedings, and the consent of Harris to the entry of the judgment was immaterial. The plaintiff in error, on the contrary, insists that, though the garnishee were but temporarily in Maryland, yet the laws of that State provide for an attachment of this nature, if the debtor, the garnishee, is found in the State and the court obtains jurisdiction over him by the service of process therein; that the judgment, condemning the debt from Harris to Balk, was a valid judgment, provided Balk could himself have sued Harris for the debt in Maryland. This, it is asserted, he could have done, and the judgment was therefore entitled to full faith and credit in the courts of North Carolina.

The cases holding that the state court obtains no jurisdiction over the garnishee if he be but temporarily within the State,Page 222proceed upon the theory that thesitusof the debt is at the domicil either of the creditor or of the debtor, and that it does not follow the debtor in his casual or temporary journey into another State, and the garnishee has no possession of any property or credit of the principal debtor in the foreign State.

We regard the contention of the plaintiff in error as the correct one. The authorities in the various state courts upon this question are not at all in harmony. They have been collected by counsel, and will be found in their respective briefs, and it is not necessary to here enlarge upon them.

Attachment is the creature of the local law; that is, unless there is a law of the State providing for and permitting the attachment it cannot be levied there. If there be a law of the State providing for the attachment of the debt, then if the garnishee be found in that State, and process be personally served upon him therein, we think the court thereby acquires jurisdiction over him, and can garnish the debt due from him to the debtor of the plaintiff and condemn it, provided the garnishee could himself be sued by his creditor in that State. We do not see how the question of jurisdictionvel noncan properly be made to depend upon the so-called originalsitusof the debt, or upon the character of the stay of the garnishee, whether temporary or permanent, in the State where the attachment is issued. Power over the person of the garnishee confers jurisdiction on the courts of the State where the writ issues.Blackstonev.Miller,188 U.S. 189,206. If, while temporarily there, his creditor might sue him there and recover the debt, then he is liable to process of garnishment, no matter where thesitusof the debt was originally. We do not see the materiality of the expression"situsof the debt," when used in connection with attachment proceedings. If bysitusis meant the place of the creation of the debt, that fact is immaterial. If it be meant that the obligation to pay the debt can only be enforced at thesitusthus fixed, we think it plainly untrue. The obligation of the debtor to pay his debt clings to and accompanies him wherever he goes. He is asPage 223much bound to pay his debt in a foreign State when therein sued upon his obligation by his creditor, as he was in the State where the debt was contracted. We speak of ordinary debts, such as the one in this case. It would be no defense to such suit for the debtor to plead that he was only in the foreign State casually or temporarily. His obligation to pay would be the same whether he was there in that way or with an intention to remain. It is nothing but the obligation to pay which is garnished or attached. This obligation can be enforced by the courts of the foreign State after personal service of process therein, just as well as by the courts of the domicil of the debtor. If the debtor leave the foreign State without appearing, a judgment by default may be entered, upon which execution may issue, or the judgment may be sued upon in any other State where the debtor might be found. In such case thesitusis unimportant. It is not a question of possession in the foreign State, for possession cannot be taken of a debt or of the obligation to pay it, as tangible property might be taken possession of. Notice to the debtor (garnishee) of the commencement of the suit, and notice not to pay to his creditor, is all that can be given, whether the garnishee be a mere casual and temporary comer, or a resident of the State where the attachment is laid. His obligation to pay to his creditor is thereby arrested and a lien created upon the debt itself.Cahoonv.Morgan,38 Vt. 234,236;National Fire Ins.Co. v.Chambers,53 N.J. Eq. 468,483. We can see no reason why the attachment could not be thus laid, provided the creditor of the garnishee could himself sue in that State and its laws permitted the attachment.

There can be no doubt that Balk, as a citizen of the State of North Carolina, had the right to sue Harris in Maryland to recover the debt which Harris owed him. Being a citizen of North Carolina, he was entitled to all the privileges and immunities of citizens of the several States, one of which is the right to institute actions in the courts of another State. The law of Maryland provides for the attachment of credits in aPage 224case like this. See sections 8 and 10 of Article 9 of the Code of Public General Laws of Maryland, which provide that, upon the proper facts being shown (as stated in the article), the attachment may be sued out against lands, tenements, goods and credits of the debtor. Section 10 particularly provides that "Any kind of property orcreditsbelonging to the defendant, in the plaintiff's own hands, or in the hands of any one else, may be attached; and credits may be attached which shall not then be due." Sections 11, 12 and 13 of the above-mentioned article provide the general practice for levying the attachment and the proceedings subsequent thereto. Where money or credits are attached the inchoate lien attaches to the fund or credits when the attachment is laid in the hands of the garnishee, and the judgment condemning the amount in his hands becomes a personal judgment against him.Buschmanv.Hanna,72 Md. 1,5,6. Section 34 of the same Maryland Code provides also that this judgment of condemnation against the garnishee, or payment by him of such judgment, is pleadable in bar to an action brought against him by the defendant in the attachment suit for or concerning the property or credits so condemned.

It thus appears that Balk could have sued Harris in Maryland to recover his debt, notwithstanding the temporary character of Harris' stay there; it also appears that the municipal law of Maryland permits the debtor of the principal debtor to be garnished, and therefore if the court of the State where the garnishee is found obtains jurisdiction over him, through the service of process upon him within the State, then the judgment entered is a valid judgment. See Minor on Conflict of Laws, section 125, where the various theories regarding the subject are stated and many of the authorities cited. He there cites many cases to prove the correctness of the theory of the validity of the judgment where the municipal law permits the debtor to be garnished, although his being within the State is but temporary. See pp. 289, 290. This is the doctrine which is also adopted inMorganv.Neville,74 Pa. 52, by thePage 225Supreme Court of Pennsylvania, per Agnew, J., in delivering the opinion of that court. The same principle is held inWyethHardware c. Co. v.Lang,127 Mo. 242,247; inLancashire Insurance Co. v.Corbetts,165 Ill. 592; and inHarveyv.Great Northern Ry. Co.,50 Minn. 405,406,407; and to the same effect isEmbreev.Hanna, 5 Johns. (N.Y.) 101; alsoSavinv.Bond,57 Md. 228, where the court held that the attachment was properly served upon a party in the District of Columbia while he was temporarily there; that as his debt to the appellant was payable wherever he was found, and process had been served upon him in the District of Columbia, the Supreme Court of the District had unquestioned jurisdiction to render judgment, and the same having been paid, there was no error in granting the prayer of the appellee that such judgment was conclusive. The case in138 N.Y. 209,Douglassv.Insurance Co., is not contrary to this doctrine. The question there was not as to the temporary character of the presence of the garnishee in the State of Massachusetts, but, as the garnishee was a foreign corporation, it was held that it was not within the State of Massachusetts so as to be liable to attachment by the service upon an agent of the company within that State. The general principle laid down inEmbreev.Hanna, 5 Johns. (N.Y.) 101, was recognized as correct. There are, as we have said, authorities to the contrary, and they cannot be reconciled.

It seems to us, however, that the principle decided inChicago, R.I. c. Ry. Co. v.Sturm,174 U.S. 710, recognizes the jurisdiction, although in that case it appears that the presence of the garnishee was not merely a temporary one in the State where the process was served. In that case it was said: "`All debts are payable everywhere, unless there be some special limitation or provision in respect to the payment; the rule being that debts as such have nolocusorsitus, but accompany the creditor everywhere, and authorize a demand upon the debtor everywhere.' 2 Parsons on Contracts, 8th ed., 702 (9th ed., 739). The debt involved in the pendingPage 226case had no `special limitation or provision in respect to payment.' It was payable generally,and could have been sued onin Iowa, and therefore was attachable in Iowa. This is the principle and effect of the best considered cases — the inevitable effect from the nature of transitory actions and the purpose of foreign attachment laws if we would enforce that purpose." The case recognizes the right of the creditor to sue in the State where the debtor may be found, even if but temporarily there, and upon that right is built the further right of the creditor to attach the debt owing by the garnishee to his creditor. The importance of the fact of the right of the original creditor to sue his debtor in the foreign State, as affecting the right of the creditor of that creditor to sue the debtor or garnishee, lies in the nature of the attachment proceeding. The plaintiff, in such proceeding in the foreign State is able to sue out the attachment and attach the debt due from the garnishee to his (the garnishee's) creditor, because of the fact that the plaintiff is really in such proceeding a representative of the creditor of the garnishee, and therefore if such creditor himself had the right to commence suit to recover the debt in the foreign State his representative has the same right, as representing him, and may garnish or attach the debt, provided the municipal law of the State where the attachment was sued out permits it.

It seems to us, therefore, that the judgment against Harris in Maryland, condemning the $180 which he owed to Balk, was a valid judgment, because the court had jurisdiction over the garnishee by personal service of process within the State of Maryland.

It ought to be and it is the object of courts to prevent the payment of any debt twice over. Thus, if Harris owing a debt to Balk, paid it under a valid judgment against him, to Epstein, he certainly ought not to be compelled to pay it a second time, but should have the right to plead his payment under the Maryland judgment. It is objected, however, that the payment by Harris to Epstein was not under legal compulsion.Page 227Harris in truth owed the debt to Balk, which was attached by Epstein. He had, therefore, as we have seen, no defense to set up against the attachment of the debt. Jurisdiction over him personally had been obtained by the Maryland court. As he was absolutely without defense, there was no reason why he should not consent to a judgment impounding the debt, which judgment the plaintiff was legally entitled to, and which he could not prevent. There was no merely voluntary payment within the meaning of that phrase as applicable here.

But most rights may be lost by negligence, and if the garnishee were guilty of negligence in the attachment proceeding, to the damage of Balk, he ought not to be permitted to set up the judgment as a defense. Thus it is recognized as the duty of the garnishee to give notice to his own creditor, if he would protect himself, so that the creditor may have the opportunity to defend himself against the claim of the person suing out the attachment. This duty is affirmed in the case above cited ofMorganv.Neville,74 Pa. 52, and is spoken of inRailroad Co. v.Sturm, supra, although it is not therein actually decided to be necessary, because in that case notice was given and defense made. While the want of notification by the garnishee to his own creditor may have no effect upon the validity of the judgment against the garnishee (the proper publication being made by the plaintiff), we think it has and ought to have an effect upon the right of the garnishee to avail himself of the prior judgment and his payment thereunder. This notification by the garnishee is for the purpose of making sure that his creditor shall have an opportunity to defend the claim made against him in the attachment suit. Fair dealing requires this at the hands of the garnishee. In this case, while neither the defendant nor the garnishee appeared, the court, while condemning the credits attached, could not, by the terms of the Maryland statute, issue the writ of execution unless the plaintiff gave bond or sufficient security before the court awarding the execution, to make restitution of the money paid if the defendant should, at any time within a year and a day,Page 228appear in the action and show that the plaintiff's claim, or some part thereof, was not due to the plaintiff. The defendant in error, Balk, had notice of this attachment, certainly within a few days after the issuing thereof and the entry of judgment thereon, because he sued the plaintiff in error to recover his debt within a few days after his (Harris') return to North Carolina, in which suit the judgment in Maryland was set up by Harris as a plea in bar to Balk's claim. Balk, therefore, had an opportunity for a year and a day after the entry of the judgment to litigate the question of his liability in the Maryland court and to show that he did not owe the debt, or some part of it, as was claimed by Epstein. He, however, took no proceedings to that end, so far as the record shows, and the reason may be supposed to be that he could not successfully defend the claim, because he admitted in this case that he did, at the time of the attachment proceeding, owe Epstein some $344.

Generally, though, the failure on the part of the garnishee to give proper notice to his creditor of the levying of the attachment would be such a neglect of duty on the part of the garnishee which he owed to his creditor as would prevent his availing himself of the judgment in the attachment suit as a bar to the suit of his creditor against himself, which might therefore result in his being called upon to pay the debt twice.

The judgment of the Supreme Court of North Carolina must be reversed and the cause remanded for further proceedings not inconsistent with the opinion of this court.Reversed.

MR. JUSTICE HARLAN and MR. JUSTICE DAY dissented.Page 229