The opinion
On Rehearing.
BOULDIN, J.
After the application for rehearing was overruled, the writer came to doubt the correctness of the judgment here rendered on the oral answer of the garnishee in respect to the amount for which the garnishee should be held responsible, and, thereupon, ordered the cause restored to the rehearing docket for further consideration on further briefs filed by both parties on that subject.
The question grows out of the new employment of the debtor pending the garnishment, and the right of the garnishee to set off the indebtedness of the debtor at that time against his wages thereafter accruing under such new employment.
At the time of the service of the garnishment the defendant was under contract of employment running to July 1, 1929, a period of some eight months.
That the garnishment lien attached to such salary as same accrued, and that judgment
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should go for the amount thereof, notwithstanding the garnishee paid same from month to month by crediting same on defendant’s running account contracted pending the garnishment, there is no occasion to further consider.
But when defendant was re-employed July 1, 1929, he owed the garnishee a balance on account. Was the garnishee entitled to set off this balance against salary accruing from July 1, 1929, to June 30, 1930?
This asserted set-off itself consists of two items: First, appellee contends that since the ■salary prior to July 1, 1929, has been subjected to the garnishment, the credits theretofore given therefor on account should be ■stricken, and the balance due the garnishee as of July 1, 1929, should take no account of credits for such salary.
Our conclusion on principle and authority is that having voluntarily paid this salary in ■disregard of the garnishment lien, the garnishee cannot now assert it is still an indebtedness held against the debtor to be used •against the plaintiff as a set-off against the salary under subsequent employment pending the garnishment.
On good reason it is) held that if the garnishee holds a demand against the defendant at the time of service of garnishment, but, nevertheless, disregards same and pays the salary pending the garnishment as though he held no set-off, he cannot set it up against the plaintiff in garnishment. Otherwise, the demand is not made a shield of protection to the garnishee, but a weapon for the protection of the debtor against the subjection of his assets to the payment, of his debts. Prudential Trust Co. v. Merchants’ Nat. Bank, 66 Or. 224 , 133 P. 1191 ; Trottier v. Foley, 42 R. I. 422, 108 A. 498 ; Paisley v. Park Fireproof Storage Co., 222 Ill. App. 96 ; Baird, etc., v. Luse-Stevenson Co., 262 Ill. App. 547 ; Brondum v. Rosenblum, 151 Miss. 91 , 117 So. 363 ; 28 C. J. p. 283, § 410, m.
A second item of the set-off in question is the sum of $530 alleged to be the balance on general account when the new employment began July 1, 1929. The sum of $260.65, due when garnishment served, for which credit was allowed, in our judgment, was part of this balance, and the question is whether the residue should be allowed as a set-off against the salary thereafter accruing. Set-off is usually applied to demands held by the garnishee at the time of service. , Self v. Kirkland, 24 Ala. 275 ; First National Bank of B’ham v. Minge, 186 Ala. 405 , 64 So. 957 .
Since our statute subjects indebtedness accruing under contracts made pending the garnishment, this involves an inquiry as to whether under such contracts any indebtedness has accrued.. In making new contracts, the garnishee owes no duty to the creditor to create an estate for the benefit of a creditor of his employee, and may contract for payment in advance, or for application of wages to the payment of a demand properly incurred prior to such new employment, and if wages are faithfully applied as per such agreement, so that no indebtedness from garnishee to defendant ever arises, the creditor cannot complain.
But here the evidence discloses no such arrangement. No agreement appears to apply the new wages to the balance on indebtedness at that time, nor does it appear that they were so applied. It appears wages were paid as usual and applied on running account incurred pending the garnishment.
The principles above announced and authorities cited must be applied to this item also.
Application overruled.
ANDERSON, O. J., and GARDNER and FOSTER, JJ., concur.