Foster, Nostrand & Co. v. Walker

GOLDTHWAITE, J. 1. It has hitherto been considered, as well settled in this Court, that, to authorise a judgment against a garnishee, his answer must contain a distinct admission of a legal debt due, or to become due, to the defendant in the original suit. Allen v. Morgan, [1 Stewart 9,] Prisnall v. Mabry, [180] 3 Porter, 105 ; Smith v. Chapman, 6, ibid. 365. In this case the answer does not expressly deny the indebtedness, which it admits once existed, but it states that the garnishee has been informed of a fact, which, if true, transfers his indebtedness to another. 2d. There would be a peculiar hardship imposed on the garnishee, if he was obliged, at. his peril, to determine whether the information received by him in such a case as this, was true or false. Indeed, he has no means by which he can attain the information necessary to enable him to swear to the certainty of the fact. It is enough, that the answer does not admit a present indebtedness. The statute allows the plaintiff to contest the answer, and to have an issue formed to ascertain, whether the fact put in issue, is true, or otherwise. If the case stood on the answer of the garnishee, he would be entitled to his discharge, according to rules laid down or recognized in the cases cited. 3d. Whether the issue was properly formed in this case depends on the construction of the 25th section of the act of 1833. [Aikin’s Digest, 43.] which is in these words : “ The plaintiff wishing to controvert the garnishee’s answer,may do so by making oath, that he believes the same to be incorrect; where-. upon, an issue shall be formed, and tried as in other cases.” The terms'used, would seem to indicate that the oath should be made by the plaintiff in person, but the previous sections authorise an attachment to be sued out by an agent, attorney or factor; and it would be unreasonable to suppose, that greater strictness was intended to be imposed on a collateral issue, than is required in the original process; as the statute is not to be rigidly construed, (as declared by its 17th section,) we think, the suppletory oath may well be made by any person, who is authorised to sue out the attachment. 4th. Then, as to the form and substance of the affidavit of the attorney in fact, at first view, it would seem to be very indistinct; but examined, it will be found not to be so, when considered in connexion with the answer. The fact to be controverted, is the discharge of Walker’s liability to Meslier the defendant, and the transfer of the indebtedness by the assignment of the note, to C. & A. Batre. Now, on looking into the [181] answer of the garnishee, we find, that it does not assert either, that Walker has discharged his indebteuness to Meslier, or that a transfer has been made of the notes, to C. & A. Batre, before the service of the garnishment. It does assert, however, that the garnishee was informed after the service, that the notes had been transferred before. This assertion is probably true; but yet the fact of an actual transfer, may never have existed ; and, without such a transfer, the liability of Walker to Meslier, would continue. The affidavit of the attorney, very properly, in our opinion, puts the transfer in issue, and in the spirit, at least, if not the words, of the statute, states the belief of the attorney, that the statement of the transfer is incorrect. We think the Circuit Court erred, in striking out the affidavit of the plaintiffs’ attorney in fact, and consequently, in discharging the garnishee, without a trial of the issue. It may be added, that this view withdraws the case from the influence of the decision, in Simpson & Gordon v. Tippen, 5 S. & P. 208, as the plaintiffs cannot enquire, under this issue, whether the notes were fraudulently transferred to C. & A. Batre; but it only puts in issue the, factum of the transfer, previous to notice of the garnishment. Let the judgment be reversed, and the case remanded.