¶1on rehearing.
¶2On a re-examination of the question presented, I prefer to place my concurrence in the reversal of the decree upon the point that money or other personal property of defendant in garnishment in the hands of the receiver, the garnishee, was not subject to the writ of garnishment, and therefore the garnishing creditor, appellee, acquired no lien upon such money or personal property belonging to the debtor under that process; and this is true whether the appointment of the receiver was valid or void for want of jurisdiction. There i.s no statute which authorizes the garnishing of a receiver, and the case must be determined adversely to appellees upon the principle that his debtor could not have maintained indebitatus assumpsit against the receiver if the appointment was valid, and, if void, the debtor had the election to pursue the receiver in an *568action for a tort, or to waive the tort and pursue him. for money bad and received, if the property was money or if personalty which has been converted into money.
¶3The right of election pertains only and exclusively to the debtor, and cannot be made by the creditor. If the personalty was not converted into money by the receiver, and his appointment was void, the debtor had the right to pursue him as a trespasser, and as a trespasser the receiver could not be charged as a garnishee. Section 2171 of Civ. Code 1896; Cunningham v. Baker, 104 Ala. 160, 16 South. 68, 53 Am. St. Rep. 27, and cases cited.