By the laws of Virginia, where an absent defendant is sued and a
garnishee is found within the state having funds of the absent
debtor in his hands, the court may either suffer the fund to remain
in the hands of the garnishee or be paid over to the attaching
creditor, security being given in either case to refund the money
upon a final decree.
Whilst the suit is pending, therefore, the money must be
considered as in the custody of the court, and not liable to be
sued for by the absent debtor against his garnishee.
Consequently, the statute of limitations does not run whilst the
suit is pending, and if an action is brought against the executor
of the garnishee after the termination of the principal suit in
sufficient time to clear the statute, a recovery must be had.
The garnishee having used the money, his executor must pay
interest from the time when the attachment process was served, up
to the time of the death of the garnishee, it being so claimed in
the bill.
The garnishee was entitled to a reasonable sum for the trouble
which he had taken.
Page 61 U. S. 129
The case is stated in the opinion of the Court.
Page 61 U. S. 130
MR. JUSTICE CATRON delivered the opinion of the Court.
Spencer Roane devised to his grand-daughter, Sarah Ann Roane,
one thousand dollars. She was a minor, residing in Kentucky, and
Joseph N. Bylen, her stepfather, was her guardian. Bylen sued
Roane's executors for the money, and recovered it as guardian.
David H. Boyd acted as the agent of Bylen, and received the money
in Virginia, and held it as agent. Fayette Roane, the father of
Sarah Ann, owed William H. Roane, of Richmond, Virginia, a thousand
dollars. Bylen was Fayette Roane's executor, and William H. sued
out a subpoena and filed an attaching creditor's bill in the
Superior Court of Chancery at Lynchburg against Bylen and others,
to which David H. Boyd was a party defendant. The main purpose of
the bill was, to restrain the money held by Boyd for Bylen as
guardian, in Boyd's hands, until Roane could obtain a decree
against Bylen, and enforce payment from Boyd as the debtor of
Bylen.
Roane's restraining order was sued out and executed on Boyd the
10th day of October, 1827.
May 4, 1829, Boyd answered the bill, and admitted that he had
received $1,112 as agent of Bylen, guardian of Sarah Ann Roane, on
a power of attorney, "which money he intended to pay over to Bylen
as guardian, until inhibited by the process of the court."
The suit lingered on the rules at Lynchburg till July 4, 1853,
the restraining order being in full force from 1827 to 1853. In the
meantime, Boyd had removed to Tennessee and died there on the 25th
of August, 1851, and about two months thereafter, John H. Boyd, the
defendant to this suit, administered on David H. Boyd's estate, and
on the 5th of September, 1853, this suit was brought. The main
defense set up is, the acts of limitation barring actions in
Tennessee. The suit was brought within two years after John H. Boyd
administered, and therefore the act barring suits against
administrators does not apply, and the only question is whether the
suit is barred by the general law barring actions founded on simple
contracts, if not sued for within three years next after the cause
of action accrued.
Page 61 U. S. 131
The settled law of Tennessee is that where an agent obtains
money of his principal, and converts it to his use, and is not sued
until three years elapse, the remedy by assumpsit is barred.
McGinnis v. Jack and Cocke, Martin & Yer. 361;
Hawkins v. Walker, 4 Yer.
It is also settled in Tennessee, that where the statute
commences to run, it runs on, unless there is a new promise within
three years next before suit is brought, and an acknowledgment by
the defendant of an actual subsisting debt due to the plaintiff
within the three years is deemed equivalent to new promise, as the
law raises a promise to pay on the acknowledgment.
Russell v.
Gass, Martin & Yerger 270. This acknowledgment was made by
Boyd in 1829, by his answer, filed in the Superior Chancery Court
at Lynchburg. Had Bylen sued him at law and the act of limitations
been pleaded, the statement in Boyd's answer would have been a good
replication.
The question then comes to this -- whether Bylen, as guardian,
or Sarah Ann Roane, after she became of age, had cause of action
against Boyd whilst the suit at Lynchburg was pending. The act of
1819, Virginia Revised Code 474, in substance provides that where a
suit in chancery is prosecuted against a defendant who is out of
the state and against a defendant within the state who has in his
hands effects of or is indebted to the absent defendant, the court
may make an order, and require surety, if it shall appear
necessary, to restrain the defendant within the state from paying
the debt by him owing to the absent defendant, or the court may
order such debt to be paid to the attaching creditor, upon his
giving sufficient security for the return of the money to such
person, and in such manner as the court shall afterwards
direct.
The act also provides how the absent defendant shall be notified
by publication, and if he does not appear, the court may hear the
plaintiff's proofs of the justice of his demand, and may proceed to
take the bill for confessed, and to decree thereon as to the court
may seem proper, and enforce due execution of the decree.
The court did not require security from Boyd to have the money
forthcoming according to a decree, that might be subsequently made,
but set the cause down for hearing against him, leaving the money
in his hands.
Bylen never answered, but urged Boyd by letters to employ
counsel and defend the suit, and to send him the money if the bill
was dismissed, and thus the matter stood until 1853, when the suit
abated by William H. Roane's death.
As, by the Virginia attachment law, the court might require
Page 61 U. S. 132
surety of the garnishee, to restrain him from paying the money
in his hands to his creditor, pending the attachment suit, or order
it to be paid the attaching creditor, on his giving surety to
refund if the suit was decided against him, it follows that the
fund was in custody of the law and that the garnishee could not be
sued a second time, so that in this case, if Bylen or Miss Roane
had sued Boyd pending the attachment suit, he or she could have
pleaded in abatement the former suit pending, to the same effect as
if he had been twice sued by Bylen. This is plainly inferable from
the face of the statute, and the position is supported by adjudged
cases both in England and in this country.
Brooke v.
Smith, 1 Salk. 280;
Embree and Collins v. Hanna, 5
John. 101;
Irvine v. Lumberman's Bank, 2 Watts & S.
208. The same rule was recognized by this Court in the case of
Wallace v.
McConnell, 13 Pet. 151. Mr. Drake, in his well
considered treatise on attachment, section 720, has stated the
practice in different states, to which book we refer.
We are opinion that Boyd's holding was not adverse until the
suit in Virginia was ended, and secondly that neither Bylen, as
guardian, nor Sarah Ann Roane, after she became of age, had cause
of action against Boyd for retaining the money, whilst the suit was
pending, and therefore the act of limitations is no defense.
The next question is whether Boyd is bound to pay interest on
the fund? As a general rule, a garnishee is not bound to pay
interest, because he is liable to be called on to pay at all times.
11 Sargent & R. 188; Drake Pr. 725; 1 Washington Va. 149.
But here the bill alleges that he used the money as his own, and
the proof is that in the latter part of November, 1826, he received
the money as agent of Bylen, and immediately loaned it to George
Boyd, his father, who was in failing circumstances, and shortly
thereafter became insolvent. As this was an appropriation of the
money and a manifest breach of trust, David H. Boyd was bound to
account with interest.
The bill only claims interest from the time the attachment
process was served, up to the time of David H. Boyd's death; we
therefore order that interest be calculated from the 23d of
October, 1827, to the 25th of August, 1851, these being the dates
from and to which interest is claimed.
In June, 1826, David H. Boyd forwarded an account to Bylen for
the money he had expended for the latter, in prosecuting the suit,
at Richmond, against Spencer Roane's executors, including one
hundred dollars for his trouble in attending to the business.
Page 61 U. S. 133
The amount claimed is $216.39. We think this charge is
reasonable, and order it to be deducted from the principal sum sued
for, which is $1,112.33, and leaves $896.44 due of principal, on
which interest after the rate of six percent per annum will be
calculated, from 23d day of October, 1827, up to the 25th day of
August, 1851, to be levied of the goods and chattels of the estate
of David H. Boyd in the hands of his administrator, John H. Boyd,
the respondent, to be administered.
It is further ordered that the decree of the Circuit Court for
the District of West Tennessee dismissing the bill be
Reversed and that the cause be remanded to said court for
further proceedings to be had therein.