Forbes v. Thompson

Citations

• 18 Del. 530
• 2 Penne. 530
• 47 A. 1015
• 1900 Del. LEXIS 27

Syllabus

<p>Attachment fi. fa.—Execution — Garnishee — Practice — Married Women—Sheriff’s Retu/rn; Motion to Strike Off — Writ; Motion to Quash—Statute ; Construction of.</p> <p>1. One of the defendants in a judgment had died more than a term of court before the issuance of a writ of attachment against both defendants. Held that the writ was properly and legally issued. While the officer in' executing the writ could not seize or attach any property which belonged to the deceased defendant, the process properly followed the judgment on which it was issued.</p> <p>2. An attaching creditor stands in no better position than the defendant in the judgment, as to the collection of a debt due to the latter from the garnishee. The right of such creditor to recover against the garnishee depends upon the subsisting rights between the garnishee and the debtor in the attachment; and the test of the garnishee’s liability is that he has funds, property or credit in his hands belonging to the debtor, for which the latter would have a right to sue. The garnishee stands in every respect in the same position as he would have been had the suit been brought by his own debtor.</p> <p>3. The “ act for the protection of women, ” Chap. 350, Vol. 14, Laws of Delaware, (Rev. Code, 600), does not authorize the husband to maintain an action at law against his wife, and inasmuch as the attaching creditor has no greater power in the collection of the debt from the garnishee than the judgment debtor would have, it follows that the wife cannot be summoned as garnishee of her husband.</p>