This is an action by an attaching creditor against a garnishee. The case comes here upon the judgment roll, and the only question is whether the' defendant was indebted to the debtors of the plaintiff at the time the attachment was served upon him, within the meaning of the one hundred and twenty-sixth section of the Practice Act.

The respondent makes certain points as to whether the debtors of the plaintiff are the same as the creditors of the defendant, which we pass without further notice. We assume, for the purposes of our judgment, that the debtors of the plaintiff are the same as the creditors, if such, of the defendant, and that the latter, if at all, is indebted to them jointly, as they are conceded to be jointly indebted to the plaintiff.

It appears from the findings that the defendant, some time previous to the suit of the plaintiff against the Red Star Mining Company, sued that company and obtained a judgment against it by default. The judgment was made to draw a certain rate of interest without there having been any prayer for such relief in the complaint. It was also made payable in gold coin, although the action was not upon a gold contract, as this Court subsequently held. It was also erroneous in certain other respects which need not be mentioned here. The case will be found reported in 27 Cal. 99. On appeal to this Court the judgment was modified by striking out the clauses in relation to interest and payment in gold coin, and in certain other respects to which reference has been made. There was no stay of proceedings in the Court below, and before the decision of the case by this Court the defendant had taken out an execution and caused the mining claims of the Red Star Mining Company to be sold. At the sale the defendant bid the full sum for which his execution called and became the purchaser. He paid the Sheriff no money, except his fees on the execution, but gave him a receipt, as is usual in such cases, for a sum equal *299to the face of the execution less the fees paid to the Sheriff. The Led Star Mining Company had ceased to work their mine prior to its sale. After the sale a contract was made between the defendant and the company, by which the latter agreed to work the mine during the time allowed for redemption and pay over the proceeds to the defendant, and the latter agreed to pay all the expenses of working and to pay the company wages in any event, whether the mine should yield a profit or not. Under this contract the defendant received from the mine, over and above expenses, the sum of seven thousand dollars in gold dust.

In view of these facts the appellant claims : First—That the sale was made null and void by the modification of the judgment, and the defendant indebted to the company for the full amount of gold dust taken out of the mine without any deduction on account of his judgment against the company, because he has not pleaded it as a set-off in this action; and second, that if the sale is valid the defendant is indebted to the company in a sum equal to the excess of his bid at the sale over the face of his judgment as it now stands.

Assuming, for the sake of the argument, that the modification of the judgment (which was a reduction of the amount) was equivalent to a reversal, and that by reason thereof the sale became null and void, and leaving out of consideration the contract between the defendant and the company under which the mine was worked, we cannot agree with counsel for the appellant that the claim of the company against the defendant became a debt in the sense of the statute in relation to attachments. (Pr. Act, Sec. 126.) The act of the defendant in working the mine, under the Anew now taken, ivas a trespass, and he became liable to the company in damages. He became a tortfeasor and not a debtor; and concede that the company, as claimed by the appellant, could have waived the tort and elected to treat him as their debtor, it does not appear that they had eAmr at any time done so. The company had a legal right to hold *300him responsible as a tortfeasor—that right they alone could waive, and they could not he deprived of it by their creditors. Until the company has elected to treat him as their debtor, the creditors of the company have no right to do so. (Drake on Attachments, Sec. 545; Lewis v. Dubose, 29 Ala. 219.)

But under this aspect of the case, we • are further of the opinion that the gold dust became, in any event, the property of the defendant through the legal effect of the contract between him and the company under which the mine was worked. Admit that the company entered into the contract under a mistake, it was a mistake of law; besides there is nothing to show that the contract would not have been perfectly fair regardless of the sale. From aught that appears, whether the mine would pay for working was a problem yet to be solved. It appears that the company had quit working some time before the sale; why they did so, however, does not appear. Under these circumstances the contract was made, the company agreeing to work the mine for six months and give the gold taken out, be the same more or less, to the defendant, he agreeing to pay the company for their work, and all the other expenses of working the mine in either event, whether the mine should yield a profit or not. We see no reason why the contract was not valid and binding on the company. If so, the gold taken from the mine under it became the property of the defendant. Had the mine failed to pay expenses the loss would certainly have been his, and by parity of reason the gain should be his. So taking the contract into the account, the defendant not only did not become the debtor of the company, but he did not become a tortfeasor, and there was no cause of action whatever in favor of the company against him, for the contract was a license to enter and work the mine for his own benefit.

Was the defendant indebted to the company in the sum in which his bid exceeded his judgment after it was reduced by this Court ?

*301The true condition of the sale—as valid or invalid—we consider to be this: The sale was valid at the time it was made; but, the plaintiff' in the execution having become the purchaser, it was liable to be set aside upon a reversal or modification of the judgment by this Court (Pr. Act. Sec. 345,) or by the Court below upon the return of the case, (Reynolds v. Harris, 14 Cal. 677-8,) upon the motion of the company. This had not been done at the time the plaintiff’s attachment was served upon the defendant, nor, so far as the case shows, has it been done yet. It seems that the company can proceed in the matter by motion in the action in which the sale was made, or by action. (Reynolds v. Harris.) It is there suggested that such a motion is unaffected by the Statute of Limitations. (We do not. desire, by this reference to the case, to be understood as committing ourselves to that proposition.) This right to have the sale set aside is at the election of the company, and not the creditors of the company, except as hereafter qualified. Until the company elects to treat the sale as valid there can be no pretense that the defendant is their debtor. Whether he would be if they were to so elect it is unnecessary to say. We merely hold that the case presented fails to make the defendant a debtor of the company within reach of the plaintiff’s attachment at the time it was served. In a case like the present, if there should be collusion between the parties, or other legal grounds, the creditors might come in by action, perhaps, but there is clearly no ease for an attachment.

Judgment affirmed.