Reynolds v. Collins

CLOPTON, J. It is insisted that the attachment is void, because the writ of garnishment, the service of which constitutes the levy, was served on the sheriff by a constable, instead of by the coroner. The writ of attachment is regular on its face, and was issued by an officer having jurisdiction, and the [97] statutory affidavit preliminary to its levy by a constable, was made. If it be conceded that the service is defective and irregular, the garnishee, by appearing and answering without objection, waived whatever defect or irregularity there may have been in the garnishment proceeding, or in the mode of service. The garnishment, being merely auxiliary- and incidental to the suit by attachment, is not involved in the issue between the garnisheeing creditor and the claimant; and he can not avail himself of, or inquire into any mere defects or irregularities in the original proceedings.-— Winslow v. Bracken, 57 Ala. 368 ; Betancourt v. Eberlin, 71 Ala. 461. There was no error in allowing the answer of the garnishee to be read in evidence. Though it may not have served to elucidate the issue being tried, it disclosed the fund in controversy, which was the subject-matter of the trial, and the basis of the contest. It does not appear from the answer that the plaintiff asserted any claims to the money in the hands of the sheriff, other than under the lien created by the levy of the attachment. While its introduction as evidence may not have been necessary, and the court would have refen'ed to it in entering judgment,, whether of discharge or of condemnation, we can not see that it could have worked any injury to the claimant. It is a general rule, that agency can not be established by proof of the mere acts of the professed agent, in the absence of any evidence tending to show the principal’s knowledge of, or assent to such acts ;• but, if they are of such nature, and so continuous, as to justify a reasonable inference that the principal knew of them, and would not have permitted them if unauthorized, the acts are competent evidence of agency, to be submitted to the jury. — Bradford v. Barclay, 39 Ala. 33; Gimon v. Terrell, 38 Ala. 208. The acts of Paneher as cashier, done openly and continuously at the bank’s principal place of business, fall within the rule. The evidence of them was properly admitted, and, if believed by the jury, is sufficient, in the absence of countervailing proof, to charge the principal with knowledge and assent, and to show his authority as cashier to issue the certificate of deposit. His signature was proved. Pecord or written evidence of his election or appointment by the directory, or the corporation, is not required. The same presumptions of ratification or adoption exist in the case of a corporation, as of a natural person. — Bates v. Bank of Ala., 2 Ala. 452; A. & T. R. R. R. Co. v. Kidd, 29 Ala. 221; Ala. G. So. R. R. Co. v. Hill, 76 Ala. 303. On the appearance of the claimant, in obedience to the notice issued to him, he is required to propound his claim in writing, under oath, on which the garnisheeing creditor must [98] take issue. The claimant claims title to the money in controversy under an assignment from the debtor, the Bank of Rome, the validit_y of which he affirms, and the burden of establishing it rests on him.— Clark & Coleman v. Few, 62 Ala. 243. The assignment is for the benefit of the creditors of the bank, with such preference as is, or may be' allowed by law, and is general, conveying all its property, real and personal, including “all the goods and chattels, bonds, notes, books, accounts, claims, demands, ehoses in action, judgments, evidences of debt, and property of every name and nature whatever.” The terms are comprehensive enough to embrace the indebtedness involved in the issue. The assignment was executed March 25, 1881, and the garnishment was served July 6, 1881. The assignment, though general, like every other conveyance or transfer, must be founded on a valuable consideration, to impart to it validity against existing creditors. The existence of debts is a sufficient consideration for this purpose. In a contest between the attaching creditor and the assignee of the debtor, the answer of the garnishee admitting indebtedness, the assignee stands in the condition of a claimant in a trial of the right of property, after the plaintiff in execution has introduced evidence showing that the property once belonged to the execution debtor. It is incumbent on him to show that his right to the attached fund is superior to the lien of the attaching creditor. In the absence of evidence of the creditor’s debt being antecedent to the making of the assignment, and in the absence of evidence of actual fraud, the assignee’s superiority of right is shown bv proof of its legal and authorized execution, ante-dating the ievy of the attachment. In such case, the recitals of the assignment are evidence, prima facie, of a sufficient consideration. And even if it were voluntary, it has the same force and effect between the parties, and is operative against strangers who have no interest, and no right to impeach its validity, as if supported by a valuable consideration. The plaintiff, however, established the existence of his debt, prior to the execution of the assignment. A general assignment for the equal benefit of all the creditors of the assignor is favored in law,' as effecting , the desideratum of equality among creditors. But a general assignment may be fraudulent and collusive. A valid and bona fide assignment only can avail to defeat the rights of the attaching creditor. When the plaintiff proved that he was an antecedent and existing creditor at the time of the making of the assignment, its consideration became an essential element of its validity as against him, and indispensable to a right or title superior to his lien acquired by process of law. The onus was cast on the claimant to show, not only authorized execution, but also that it was founded on [99] a valuable consideration — the existence of real debts due by the ■ bank. — Simerson v. Br. Bank, 12 Ala. 205; Maher v. Brown, 2 La. 492. The debt of the plaintiff, on which the attachment issued, being a precedent debt, the recitals of the assignment, as to the consideration and the existence of debts, are not evidence thereof; they must be proved by other evidence. The only debt against the bank, of which there was any evidence, is the demand of the plaintiff: and it is insisted that this is a sufficient consideration to sustain the assignment. The assignment having been voluntarily executed by the debtor, the plaintiff had the right of election to accept its provisions, or to assert his rights’independently. — Hatchett v. Blanton, 72 Ala. 423. By resorting to legal process to enforce the collection of his claim out of the assets of the bank, he elected to assert his rights independent of the assignment; and if his be the only debt, the consideration of the assignment fails, and it can not be used to defeat the independent assertion of his rights; for such use, if successful, would be tantamount to a compulsory acceptance of its provisions. There is no question, that debts due by the debtor constitute a valuable consideration for an assignment of all his property for the benefit of his creditors; but, as the right of the claimant depended wholly and exclusively on the validity of the assignment, and as no evidence was introduced or offered tending to show any debt other than the plaintiff’s, the court was authorized, on the evidence, to give the affirmative charge in favor of the plaintiff. We discover no error in the record, and the judgment is affirmed.