McCAIN v. WOOD, 4 Ala. 258

GQLDTHWAITE, J. 1. The argument of the defendant in error insisting that the present proceedings are without authority, renders it necessary to examine the statute under which the plaintiff claims to give jurisdiction. The first

section of the act to amend the law in relation to garnishments, provides, “ that when a garnishee, in any case of judicial or original attachment shall answer that previous to the time of such answer, he or she has received notice of the assignment or. transfer of the debt, &c., it shall not be lawful for the Court to render judgment against the garnishee on the ground oi the invalidity of the assignment, or transfer of the debt, &c.; but the Court shall suspend proceedings against the garnishee until the question is litigated, as provided for in the following

section of this act.” It is urged that as the garnishment issued upon the return of nulla bona to an execution, it is not within the terms, any case of judicial or original attachment. The proceeding by garnishment is, in effect, only ancillary to some previous attachment whenever it relates to a debt. The debt is first attached, or stopped, in the hands of the debtor, and the garnishment is the summons by which he is called into Court to answer.

It is true that we have two modes of proceeding by attachment, one of which is called original, because the writ of attachment'is, in that, the leading process; and the o\ha\ judicial, in which this writ issues after the return of an ordinary capias; but in addition to these we have several other ancillary modes of proceeding by attachment.

One of these is when an execution has been returned nulla bona, the creditor is then permitted, as he has attempted in this case, to reach a debt in the hands of a debtor of the defendant in execution. [Aikin’s Digest, 213, §1.] So likewise he may have garnishee process against a debtor without running a fi.fa. if he will make affidavit of certain facts. [Ib. §2 ; Meek’s Sup. 9, §7.] He may also sue out process of attachment as ancillary to a suit at law under certain circumstances. [Meek’s Sup. 9, §8.] In all these cases the several statutes prescribe that the proceedings against garnishees shall be in the same manner as required by law agaiust garnishees in orignal attachments.

It is then wholly unnecessary to inquire whether this proceeding is a judicial attachment, because the proceedings are directed to be, the same against a garnishee under the act, by virtue of which this garnishment issued, as they are in the case of original attachments. There is, then, nothing in the objection of the defendant to the jurisdiction of the Court. 2. It is insisted that this deed.to be effectual against a creditor, should have been recorded within thirty days after its execution.

It is true the act of 1828, [Aikin’s Digest, 208, §5,] avoids all deeds of trust of persoual property which are not so recorded, when they conflict with the rights of a creditor or subsequent purchaser, without notice, but our opinion is that this statute was not intended to apply, nor docs it apply, to c/ioses in action. The obvious intention of this enactment is to provide against the case of a secret trust created on property .capable of possession, o'f which the mischief is apparent, and which must in mosteases tend directly to the prejudice of a creditor.

The same reasons have little, if any, application to a chose in action, which rarely can induce a credit — or which, il such credit is induced, can be reached by attachment, if not actually assigned to another. 3. Whatever may be the intrinsic weight of the objection to this deed for its supposed uncertainty, this is not now an open question with us. In the case of Robinson v. Rapelye, [2d Stewart, 86,] it was held that a conveyance by a debtor of all his property for the benefit of his creditors,required no specific description of the. property to be considered as prima facie valid.

Iu the present case the deed is not a transfer of all the debts due to the grantor,but only of such as were due him from persons in the State of Alabama, for medical services. No creditor can be affected by this transfer unless notice was had by those indebted. In such a case it cannot be doubted that a Court of Equity would protect the assignee against any collusive payment made to the debtor subsequently to notice of the assignment, and if the transfer is effectual for such a purpose, we can see no reason why it is not as against a creditor.

In either case the true question is as to the actual transfer of a beneficial interest in the chose in action. Whenever this is shown,the interest of the assignee will be protected, and the cases are numerous to show this is the rule in Courts of law as it certainly is in Courts of equity. 4. There is nothing on the face of the deed to warrant a Court in declaring it fraudulent and void.

If the transfer was of debts to an amount greatly exceeding the liability intended tobe secured, and these were due from solvent persons, we are not prepared to say that this circumstance might not be left to a jury, as a fact from which fraud could properly be inferred; but in the condition in which the case stood before the Court, any presumption of fraud was unwarranted. 5. Upon the question of consideration, we think the proper charge was requested by the plaintiff'. It is apparent the deed was executed after the indebtedness had' accrued to McCain, and even after his debt was reduced to judgment.

Under these circumstances the admissions of Steadman ought not to have any effect on his rights. The objection to such evidence is, that it could at any time be manufactured by one indebted, and by means of it a creditor might be defeated, as it. would in most cases be impracticable to prove a negative, or to disprove the consideration said by his debtor to have passed from another.

We do not deem it important to examine whether the charge as given is obnoxious to criticism, because we have repeatedly held it to be the duty of a Court to give a charge, if properly asked for, however it may afterwards explain or modify it. For this error the judgment of the Circuit Court is reversed and the cause remanded.