(dissenting) — When this case was first presented to the supreme court, in December, 1896, I took no part in the hearing or consideration of the same. This appears by the brief order filed by the court affirming the judgment,” and participated in by the Chief Justice and Mr. Justice De Witt. Wilson v. Harris, 19 Mont. 69, 47 Pac. 1101. In the order of the court, however, this language was used: “The case was argued on December 7, 1896, before Mr. Chief Justice Pemberton and Mr. Justice De Witt; Mr. Justice Hunt deeming himself disqualified.” The words which purported to state my position were inadvertantly used by the court. I never deemed myself disqualified, nor was I disqualified under any possible construction of the law. I am neither a party, nor am I directly or indirectly interested in this action or any proceeding had therein. I am in no way related to either party; I have never been attorney or counsel for either party; nor did I render or make the judgment, order or decision appealed from (see Section 180, Code of Civil Procedure 1895); nor have I any bias or prejudice of any kind whatever. In declining to sit at the first hearing I merely yielded to a personal disinclination to review a case which was the outgrowth of proceedings had in another suit, in which, as district *432judge, I had made the order authorizing this appealed suit to be instituted. These are the facts: In 1892, plaintiffs, in actions upon debt, recovered judgments by default in the district court against defendant B. Harris. At that time I was a judge of the district court in and for Lewis and Clarke county, and rendered several, if not all, of such judgments. None of these judgments was appealed from. Thereafter, in due form, under Section 353, (lode of Civil Procedure 1887, affidavit was filed and proof was made to the satisfaction of the district court, of which 1 was the judge, that Moses Morris (the original assignee of B. Harris) and Sax & Zekind had in their possession property of the defendants in a large amount. Said parties were then ordered to appear and answer as required by the statute. Brief hearing was had before me as judge, and under Section 356 of the Code of Civil Procedure of 1887, it having appeared that the persons alleged to. have property of the judgment debtor claimed an interest in the property adverse to the judgment debtor, and denied the debt, as judgd 1 made an order authorizing the judgment creditors to institute an action against said Morris and Sax & Zekiud for the recovery of the interest claimed; and an injunction was issued forbidding the transfer or other disposition of the interest claimed, or debt, until an action could be commenced and prosecuted to judgment. Thereafter this present action, in the nature of a creditors’ bill to set aside the assignment by B. Harris to Moses Harris, was instituted; and although it was pending in the district court before I retired as a judge thereof, and although I may have made some order in the initial stages of its progress, the questions raised on this appeal and the points considered by this court have never been presented to or considered by me. The cause was proceeded with, tried and determined by the Honorable H. It. Buck, sitting as a judge of the district court; and from a judgment rendered by him, and from his order overruling a motion for a new trial, this appeal is taken. On January 4, 1897, two days after the affirmance by this court of the judgment of the district court, Mr. Justice De Witt re*433tired as a member of the supreme court. His successor was the aforesaid Honorable H. R. Buck. Within the time allowed in which to move for a rehearing, and just after Mr. Justice Buck became a member of the supreme court, the appellants herein filed a motion for a realignment and a rehearing. Briefs were submitted, not alone upon the points of law relied upon, but upon the attitude of the case before the court under the peculiar situation that had arisen. Justice Buck, being disqualified, did not participate at all. Plainly, the parties were entitled to a decision of the motion, at least as to the competency of the court to which the motion was addressed. Conrronted with so unusual a situation, my duty was to subordinate all personal disinclinations, and to act with the chief justice in first deciding whether there were two justices qualified to act. To this inquiry there could be but one answer: A majority of the .court (the chief justice and I) were qualified. As my right to sit existed, it was my duty, of course, to act. After determining this point, we decided that, although the appellants had not brought themselves strictly within the rules governing rehearings by this court, nevertheless, under the circumstances, it seemed just and proper that the case should be orally reargued before the court consisting of the chief justice and myself. This was agreeable to all counsel, and the case was thereafter argued to a majority court, Justice Buck not sitting. Before a decision was reached, however, Mr. Justice Buck died, and Mr. Justice Pigott became a member of the court. The importance of the case warranted the court, of its own motion, to unanimously order a resubmission of it to the entire bench. This was agreeable to all counsel. It would have been more agreeable to me to have again refrained from sitting, but I felt it a duty to take part in the hearing. It was accordingly reargued by counsel to the full court, and again taken under advisemtnt. Since its submission our earnest attention has again been given it, in a conscientious effort to reach a correct result; and, while it is impossible for the court to unanimously agree upon the law, I feel it is to the interest of all parties concerned that a conclusion has finally been arrived at.
*4341. I disagree with the majority of, the court in their interpretation of the attachment statutes in force prior to the adoption of the codes.
■My reasons for dissenting are these: By the fifth subdivision of section 186 of the.Code of Civil Procedure of 1887, the method of attaching personal property of the defendant which is capable of manual delivery is by taking it into custody; while the method of attaching personal property belonging to the defendant, and not capable of manual delivery, and not in defendant’s actual possession, is by leaving with the person having possession or control of such property a copy of the writ and a notice of attachment. The operation of this statute may be exemplified by an instance of an attachment of a horse in the possession of the defendant, and an attachment of a growing crop belonging to the defendant, but in the control and possession of’ a servant or agent of the defendant. To attach the horse, the sheriff ■ must take it from the possession of the defendant, and into his own custody — it is capable of manual delivery; while, to attach the growing crop, which is incapable of manual delivery, he need only serve the copy of the writ and notice provided for by section 186. The object of this fifth subdivision is principally to extend the remedy of attachment to property belonging to defendant, yet not capable of manual delivery. The statute thus enables the creditor to gain a lien on all of the personal property of a defendant, whether capable or incapable of manual delivery, and whether in or out of defendant’s actual possession or control.
I do not doubt the right, under the statute cited, to seize the property of a defendant in the possession or control of a third person by taking it into actual custody; and, if there were no other statutes upon the subject besides those above referred to, the remedy would doubtless be confined to an actual taking, if capable of manual delivery. The Utah decision (Kiesel v. U. P. Railway Co., 21 Pac. 499) cited by Justice Pigott would then be entitled to much consideration. But, in my judgment, no construction of the attachment laws *435is correct which fails to give full effect to section 188, and other following sections of the Compiled Statutes. I think that section 188, overlooked apparently by the Utah decision, was designed to provide another mode of attaching personal property belonging to a defendant, in the possession or under the control of any person other than the defendant himself. The mode prescribed is by serving upon the person in possession, or having control of, the property, a copy of the writ, and a notice that the property is attached in pursuance of such writ. The service of the copy and notice constitutes the attachment, and not merely a procedure in aid of an attachment. My learned associates admit that, by section 186 and its provisions, such a sefvice constitutes an attachment if the property is not capable of manual delivery, but deny that it so operates if the property is capable of such delivery. But if they are right, as they clearly are, in the view that the mere service of the copy and notice is an attachment where the property is not capable of manual delivery, it is difficult to see wky a like service made under section 188 is not equally effective as an attachment of any personal property, whether capable or not of manual delivery, of the defendant in the hands of a third person. 1 cannot assent to any limitation of the words of section 188 by which the meaning of the section is interpreted to confine an attachment to property not capable of manual delivery. Its provisions are, in effect, that if any person has in his possession or under his control “any credits or other personal property belonging to the defendant, ’ ’ etc., ‘ ‘the sheriff shall serve a notice that such credits or other property * * * are attached in pursuance of such writ. ’ ’ The essence of the section is to enable plaintiff to acquire a lien by the service of a copy of the writ of attachment and the notice indorsed thereon. No qualification of the words “other personal property” appears, as in the Hew York statute, for instance. (Voorhees' Code, Sec. 235.) They apply as well to one class of personal property as to another, and I cannot import into the statute restrictions which confine its applicability only to property not capable of *436manual delivery. Confirmation of this interpretation is found in section 190, wherein it is provided that any person having in his possession personal property belonging to the defendant may be brought before the court, and examined on oath respecting the same. The court may then order personal property capable of manual delivery to be delivered to the sheriff upon such terms as may be just, having due regard to any liens thereon. If the only method of attaching personal property of a defendant which is capable of manual delivery is by actual seizure, the court, if it can acquire any jurisdiction at all to order its delivery, must order it delivered to the sheriff. But I think that there is no such mandatory provision. The court may order it” turned over, but is not obliged to do so. The statute recognizes, by implication, the fact that the property can as well be left in the possession of a third person, and yet be subject to the attachment as effectively as if delivered over to the sheriff. Section 189 likewise contemplates that property attached pursuant to the provisions of section 188 need not pass into the hands of the sheriff, although capable of manual delivery; for it provides that one having possession of personal property belonging to the defendant, and served with the copy of the writ and notice required, shall be liable to the plaintiff for the amount of the property until the attachment is discharged, or any judgment is recovered, unless such property be delivered up or transferred. If the only method of acquiring a lien of attachment upon personal property of the defendant in the hands of a third person, capable of manual delivery, is by taking it into actual custody, this statute inconsistently authorizes such third person possessing such property to yet remain in possession of the same, and simultaneously become liable for property never taken into custody at all, and therefore, according to the majority opinion, never attached at all; for section 189 is based upon the fact being undisputed that there is property in the hands of such third person, and that he has been served with the copy of the writ, but has never parted with the possession of the personal property so held by him, and does not intend to part *437with it. The many difficulties of proceeding in execution after judgment are no greater in a case where personal property in a third person’s possession is attached, than where a debt .or credit is. Courts of equity can solve such questions with due reference to liens and claims of others.
Johnson v. Gorham, 6 Cal. 196, cited by the majority opinion, sustains the conclusion reached by my associates: but the court gave no reasons for its decision, cited no books, and did not attempt to analyze the various statutes of the state .of California.
The-doctrine of Biglow v. Andress, 31 Ill. 323, also cited, is certainly not followed in the case of Smith v. The Clinton Bridge Co., 13 Bradwell App. Court Keports 572, where the court said: “Where a ivrit of garnishment is served upon a debtor, it must create a qualified lien, or have the effect of a qualified appropriation of the indebtedness by the law to the objects and purpose of the attachment, that is binding alike upon the defendant, the garnishee and third parties; otherwise the garnishment might always be rendered wholly nugatory and futile by payment or assignment of the debt. ’'
In Northfield Knife Co. v. Shapleigh, 24 Neb. 635, 39 N. W. 788, the court said: “We are aware that in Bigelow v. Andress, 31 Ill. 322, it was held that garnishment imposed no lien upon the goods in the garnishee's hands, and did not put them in custodia legis. If this was the rule, proceedings by garnishment would be an expensive farce, which would give the attaching creditor no rights under the attachment. Neither can the right be restricted to the personal liability of the garnishee, as he might be insolvent, or unable to pay the value of the property. We hold, therefore, that garnishment is an'attachment of the goods in the hands of the garnishee, and that such goods are not subject to levy and sale upon pro cess thereafter levied during the continuance of said attach ment. ” (See, also, Reed v. Fletcher (Neb.) 39 N. W. 437.)
It is true that the Nebraska decisions were where the prop erty was mortgaged by chattel mortgage, but the doctrine of *438the cases is that the garnishment proceedings imposed a lien upon the effects in the garnishee’s hands.
The case of Focke, Wilkins, Lange et al. v. Leon and Blum (decided in 1891 by the Supreme Court of Texas) 82 Tex. 436, 17 S. W. 770, in its facts, is very like the case at bar. An assignment for the benefit of creditors was made. Actions were brought wherein the person who held possession of the stock of goods was served with writs of garnishment. Subsequently other creditors by attachment seized the goods, and took them from the possession of the garnishee. It was decided that, although the garnishee was not a debtor owing a sum of money, but had in his possession effects subject to execution and to the satisfaction of plaintiffs’ claim belonging to the debtor firm at the time of the service of the writ of garnishment upon him, the service or levy of the writ of garnishment, which was virtually a process of attachment, had the effect of placing the property of the debtor in the hands of the garnishee at the time in custodia legis, and of creating at least a right ad rem or quasi lien upon the effects or property, in favor of the plaintiffs in the writ, to secure the payment of the debt sued upon, and evidenced by a valid judgment, superior to the rights of other creditors subsequently attaching the property. The Texas court expressly disap: proved of the decision in Johnson v. Gorham, supra, and based their decision upon principle and authority.
These several cases cited, and the California case referred to, were presented to this court by the briefs of counsel in the case of Montana National Bank v. Merchants’ National Bank, supra. The California doctrine was there disapproved of; for it was held that, as to a chattel capable of manual delivery in the possession of a garnishee, an inchoate lien or right is acquired by garnishment as to such chattel. I therefore find myself, in this dissenting opinion, in direct accord with the views of this court expressed in a late very important case, where the principal authorities relied upon by counsel in this case were considered by the court in arriving at the conclusions reached in that decision.
*439Attachments of goods and effects in the possession of third persons by service of writs are of old practice in our country. In Lousiana, in 1820, in Scholefield v. Bradlee, 8 Mart. (La.) 495, it was argued that no sufficient levy of an attachment was made upon goods, “inasmuch as there was no seizure or corporal possession taken by the sheriff.” It was decided that an attachment in the hands of a garnishee was sufficient to place the property in the custody of the law, and that after service of such an attachment the sheriff had no right to go and take the property from the garnishee.
In Erskine v. Staley, 12 Leigh, 406, a service of an attachment process upon a garnishee by creditors of an absent debtor was held to be equivalent to an actual levy, and that, while the effects might remain in the hands of the garnishee, they were under the control of the court.
That the garnishee might be left in possession, where personal property capable of manual delivery was attached by constructive seizure, was also held in Moore and Davis v. Byne and Hust, 1 Richardson S. C. 94. (See, also, Dennistoun & Co. v. N. Y. Croton & Steam Faucet Co., 6 La. Ann. 782; Rennecker Glover v. N. J. Davis, 10 Rich. Eq. (S. C.) 289; Beaumont v. Eason, 12 Heiskell, Tenn., 417; Rood on Garnishments, Sections 193, 194, — where the principles of the lien garnishment are discussed and applied within the limits of the principles which I believe should govern.
2. Inasmuch as I believe plaintiffs acquired liens by attachment, it is unnecessary for me to express an opinion upon the question whether or not the plaintiff’s action is justified even without a showing of equitable lien by actual seizure. That important proposition of law not having been presented to the court on the argument, 1 prefer to reserve an opinion upon it.
3. I also dissent from the reasoning and argument of the majority opinion upon the evidence introduced. I agree that there is not sufficient evidence to show participation by H. L. Frank m any actual fraud in the sale to him by the assignee, *440but I regard that matter as having nothing at all to do with the question of fraud in or upon the assignment itself. To recite the evidence upon which the jury found that the assignment in question was made with intent to hinder, delay and defraud creditors would take up too much space in»a dissenting opinion. Suffice it to say that it was substantial, .ample, voluminous. The lower court adopted the findings, made its conclusions, and thereafter denied the motion ■ for a new trial. The jury and the judge of the district court saw the witnesses and heard them testify. This is of the greatest advantage, especially m cases of alleged fraud; and where, as here, the record fully sustains the action of the district court, I cannot concur in setting it aside. Believing that there were no prejudicial errors,' I think the judgment should be affirmed.