#### Platt vs. The Sauk County Bank.

The affidavit for garnishment in an attachment suit, with the answer of the garnishee denying any liability as such, make an issue.

The garnishee is entitled to judgment upon such issue, ¡jnless the plaintiff elects to have a trial thereof.

Where the plaintiff, on the same day that the garnishee’s answer was filed, served on him a notice of trial of the issue thus made: *Hd<L,*that the election to have a trial, and the notice of such election, were sufficient under sec. 48, eh. 130, R. S. ■

*223A motion by the plaintiff for judgment upon a garnishee’s answer raises an issue,of law, like a demurrer to the answer in an ordinary *action;*but whether the hearing of such a motion should be considered a “trial,” within the meaning of the statute, it was not necessary in this case to decide.

Certificates of deposit payable “in current funds,” are not negotiable.

APPEAL from the Circuit Court for *Sauk*County.

In an action by *Platt*against one Hoag, the property of . Hoag was attached on the 15th of December, 1862, to satisfy a demand for $1,834.50, and the *Sauk County Bank*was summoned as garnishee of said attachment defendant. The cashier of the bank appeared in obedience to the summons, and on his examination stated that the bank was not indebted to Hoag at the time of the service of the garnishee summons; that said Hoag had no money or effects in the bank at the time of such service ; that on the 5th of December, 1862, he deposited $í,200, and took two certificates of deposit for the same, one for $1,000, the other for $200 ; that on the 6th of the same month the bank issued to him two other certificates of deposit, of that date, one for $400.15, and the other for $449.15 ; that these certificates were payable to the order of said Hoag, and were made payable “ in current funds ” on the return of the certificates properly indorsed ; that none of these certificates had been paid by the bank; and that witness did not know that Hoag had had any of them in his possession since the time of issuing them; that these certificates of deposit circulate as money; that upon their presentation, with proper in-dorsements, the bank always paid them to the holder; and that such was the custom of all banks so far as witness knew. This answer was certified by the county judge before whom it was taken, and filed in said circuit court January 17,1863. On the same day the bank accepted service of a notice from the plaintiff that the issue of fact made on its answer as garnishee would be brought to trial at the next term of said circuit court. When the cause was reached in that court, the defendant moved to strike it from the calendar, on the ground that *224‘bo issue bad been joined. The-court granted tbe motion for that reason, bolding that tbe notice of trial was not a sufficient notice to tbe garnishee that tbe plaintiff was dissatisfied with its answer. The record further states that by the consent of the counsel for tbe bank, given in open court, “ tbe plaintiff, after said cause had been stricken from tbe calendar as an issue of fact for trial, moved tbe court for judgment against said garnishee, upon bis answer as such, for tbe amount recovered by the plaintiff against said Hoag in the action wherein tbe garnishee process issued.” Motion denied. Judgment for tbe defendant; from which the plaintiff appealed.

*Smith & Ordway,*for appellant:

1. By the statute of 1849, p. 592, the garnishee’s answer being unsatisfactory, an issue was to -be made up immediately; and to effect this, the statute appears to contemplate some further act than the affidavit, examination and answer. How that issue was to be formed is not stated. In *Keep v. Sander-*son, 12 Wis., 355, it was by a declaration alleging the indebtedness of the garnishee to the defendant in attachment, and an issuable plea thereto. A trial at the next term after judgment in the original suit, followed as a matter of course. If no issue was made, judgment was had in favor of the garnishee. Nothing is said about an election. Sec. 85. By R. S., 1858, ch. 130, sec. 49, an issue is to be made up of the affidavit and v answer. *There is an issue in all*cases; and the garnishee is entitled to a judgment for his costs, unless the plaintiff elects to have a trial. Sec. 48. The examining officer must file with the clerk of the court the garnishee’s answer, and then the case stands like any other issue to be tried by the court.. How, when and where is the ■ election of trial to be made ? Not to the examining officer; he is authorized only to return the answer to the court. Not prior to the filing of such return ; for until then the issue is not completely within the jurisdiction of the court. Sec. 50 provides that “the issue is to be tried like any other personal action.” In every other *225sucb action tbe election of trial is evidenced by notice of trial :'(Laws of 1859, cb. 71); and either party may bring tbe issue to trial. R. S., cb. 132, sec. 9. 2. Tbe plaintiff was entitled to judgment on tbe answer of tbe garnisbee. Tbe certificates of deposit, being payable in current funds, were non-negotiable, and, if transferred, carried with them all existing equities. ‘ Edw. on Bills &c., 60, 134, 136, 137, 217; *Clark*v, *King,*2 Mass., 524; *Jones v. Fates,*4 id., 245; *Thompson vs. Doming,*14 M. & W., 403 ; *Bank of Utica vs. Magher,*18 Johns., 341; 1 Am. L. C., 319 ; Story on Prom. Notes, § 18, n. 8; *Me Cor-■ miele v. Trotter,*10 S. & R, 94; *Cray v. Donahoe,*4 Watts, 400; *Fry v. Rousseau,*3 McLean, 106; *Little v. Phoenix Bank,*2 Hill, 427 ; *Leiber v. Goodrich,*5 Cow., 186; *Collins v. Lincoln,*11 Yt., 268 ; 13 Wis., 212; *Farwell v. Kennett,*7 Mo., 595.

*Cary*& *Pratt,*for respondent,

contended that tbe election to have a trial on the issue formed by the garnishee’s answer, mentioned in sec. 48, cb. 130, R. S., must be exercised by tbe plaintiff and brought to the notice of tbe garnishee within a reasonable time, and that the “ notice of trial” was not required by the statute, and was of no effect for any purpose. 2. The motion for j udgment against the garnishee was properly denied. The certificates of deposit described in the answer were negotiable. There is nothing in the record showing that the phrase “ current funds ” had any technical meaning, or any meaning different from the ordinary definition of the words? See Webster’s Dictionary, “ currency ” and “ current funds.” See also *Judah v. Harris,*19 Johns., 144; *Handy v. Dobbin,*12 id., 220 ; *Keith v. Jones,*9 id., 120.

*By the Court,*

Dixopt, C. J.

It was erroneous to strike $he cause from the calendar for the reason that no issue was joined. An issue was joined, and the only question that could arise was as to whether the plaintiff had given sufficient notice of his election to have a trial thereof. T. he statute expressly declares that the affidavit mentioned in the thirty-fourth section *226shall be deemed tbe complaint in tbe action against tbe garnishee, and bis answer taken on bis examination shall be bis $ answer in such action. R. S., ch. 130, sec. 49.

*We*are also of opinion that tbe election by tbe plaintiff was sufficient. Tbe language of tbe statute upon this subject (sec. 48) is very general. The time and manner in which be shall elect or give notice to the garnishee are not specified. Indeed .no notice is required except such as is implied from the authority given tbe plaintiff to elect. If the garnishee in bis answer ..shall deny all indebtedness or liability, be shall recover judgment &e., unless the plaintiff shall elect to have«a trial on the issue formed by such answer. The answer of the garnishee, taken before the county judge, was returned and filed on the 17th of January, and on the same day the plaintiff gave notice of trial of the issue made by the answer. This was a good election, and reasonable notice thereof to the defendant.

But whether the election by the plaintiff was good or not, it was not too late for him to move for judgment on the answer, unless the. hearing of such motion should be considered a trial within the meaning of the statute. It certainly raises an issue of law, the same as that raised by demurrer to the answer in ordinary cases. An opinion upon this question is unnecessary.

The remaining question, as to the negotiability of the certificates of deposit set forth in the answer, has already been decided by this court. Such paper was held non-negotiable in *Ford vs.*Mitchell, 15 Wis., 304. This case is not distinguishable from that, and must be governed by the same fule. That decision is sustained by an almost unbroken current of authority, Kand we are not inclined to change it by reason of any change in the circumstances of the country. If the ^legislature deem it expedient to declare such instruments negotiable, they have the undoubted power to do so ; but such changes in the law ánd policy of the state are not to be effected by the courts.

It was suggested at the bar that the certificates might be *227deemed payable in tbe treasury notes of tbe United States, and therefore negotiable, since tbe law of congress declares sucb notes to be equivalent to gold and silver coin in payment and tender for debts. But tbe words “ current funds ” cannot be so construed. They were undoubtedly intended to include all funds bankable in this state, and any sucb funds would answer the description and satisfy the contract. A tender in any of the notes of tbe banks of this state passing as currency would have discharged tbe obligation.

Judgment reversed, and cause remanded for further proceedings according to law..