Brooks v. Hildreth

LIGrON, J. There was no error in allowing the claimant of the fund in controversy to show that the garnishee held it for him, and not for the defendant in execution. The ownership of the fund is the question at issue; and after the plaintiff in execution had shown that the money in the hands of the garnishee had once belonged to the defendant in execution, it was both competent and proper for the claimant to show, if he could, that the ownership had been changed, before the process of garnishment had been served, and that he had become entitled to it. The evidence objected to tended to establish this fact, and it was rightfully allowed to go to the jury. The charge asked was properly refused. It is objectionable in form, and is incorrect as a conclusion of law deduced from the testimony in the case. The jury are the exclusive judges of what has or has not been established by the evidence; it is for them, and for them alone, to determine the measure of credit to be allowed to [473] testimony, and in this they must act for themselves, untrammeled by the instructions of the court. Any charge, therefore, which takes this right from them, or which assumes a fact to be proved, is an invasion of this right, and should never be given. The charge asked by the plaintiff in execution in the court below, is obnoxious to this objection, and was properly refused. He asked the court to say to the jury, “that he was entitled to the money mentioned in the garnishee’s answer, and they must find the issue for him.” This takes every thing from the jury, and demands a verdict for the plaintiff in execution, whether they believe the evidence on which such demand was predicated or not. The testimony shows, that the garnishee received the money, in the first instance, for the sole purpose of handing it over to the claimant. In this he was the agent of Jones, to whom the fund rightfully belonged, and a trust only in favor of Mosley was created. Baker v. Moody, 1 Ala. 315. But when he saw the latter, and informed him of what had taken place, and he assented to it, and requested the garnishee to hold the money for him, which he promised to do, Mosley’s right to the fund in the hands of Hildreth became absolute, •and Jones’ right to and dominion over it ceased. All right to recover it from Hildreth was taken away from Jones; and when the debtor cannot recover against the garnishee, in an action of debt or indebitatus assumpsit, his creditor cannot charge the money with the payment of his demand by process of garnishment. Walke v. McGehee, 11 Ala. 273. The fact that Mosley’s demand against Jones arose out of costs incurred in litigation entered into by the former, at the instance of the latter, which resulted unsuccessfully in consequence of some fraud in the deed under which he claimed, but to which he was not a party originally, can have no effect upon his right to the indemnity promised by Jones. The liability of Mosley to pay the costs thus incurred, forms a sufficient consideration to support the promise of Jones to indemnify him against loss on this account; and the payment having been made to the garnishee with the consent of Mosley, the sum in the garnishee’s hands must be regarded as the property of Mosley, and not the money of Jones. As between Jones and Mosley, this payment is good, and extin474 guisbes the liability of the former to the latter, pro tanto; for a payment to a third person, if known to and sanctioned by the creditor, is good, and will avail the debtor in a suit by the creditor against him for the sum so paid. The charge requested by the plaintiff in error, being repugnant to these views, was rightly refused; and the charge given being in strict conformity to them, it results that there is no error in the record, and the judgment must be affirmed.