Bebb v. Preston

Woodward, J. We have expressed the opinion, that the transaction between Hathaway and Preston, was in effect an assignment for the benefit of creditors. The questions of the case, turn on this. It is unquestionably clear as a .proposition of law, that the plaintiff may show that this assignment is void, under chapter 62 of the Code, as being general, and made by an insolvent, or in contemplation of insolvency. In order to do this, he must show that there were other creditors not provided for, and that the assignment contained substantially all the property of the assignor. The cause does not turn at all upon the property being that of Hathaway only. The property of one partner is liable for partnership debts, and this may be such a case. But the question here seems to be, whether he may do it upon these questions and answers. It does not appear to us, upon what grounds the court below decided; but we assume that it was that — 335 — some other and more specific question pointing to the particular matter, should be put to the garnishee. Two considerations are to be regarded; one is, that the garnishee is to take care of his answer, and place himself within the law. It has been a rule pertaining to these proceedings (and may be still), that if the garnishee does not clear himself, but leaves any matter doubtful, when the requisite knowledge is within his proper reach, the answer shall be taken again'st him. The other consideration is this, suppose the question to be put, whether there are other creditors and other property, and the garnishee to answer, that he does not know. Is the plaintiff to be stopped by this ? This garnishee answers first, generally denying that he owes defendant, and that he has property, rights, or credits of his, in his possession; and secondly, by a special answer, showing how he does in fact, hold some property, &c. Now, is the plaintiff obliged to put specific questions to draw out answers to the above named matters, before he can take issue, or may he take issue on the general answer. After some doubt and consideration, we are of opinion, that he may take issue on the general answer. As we have intimated before, if the garnishee should answer that he does not know, this could not stop the plaintiff; and, further, the special answer is permitted for the benefit of the garnishee, that he may not be obliged to assume the responsibility of a categorical answer to the general question, but may explain the circumstances in which he stands. This proceeding is not intended to be a burthen upon a garnishee. His rights are to be protected. He is to be considered as an innocent and indifferent party, although it is well enough known, that sometimes they are not such. Such they are, in contemplation of law, until the contrary be shown. Therefore, we might not hold him to so technically correct an answer, as to exclude every presumption; but we feel constrained to say, that as the plaintiff may controvert his answer, and as the garnishee does not on his special answer, present any tangible matter upon which to raise the issue of fact or law, the plaintiff must be permitted to make that issue on the general answer. The proposed amendment consists of two — 336 — parts or propositions. The second is, first, in natural order, being a general denial of the answer, by alleging that the garnishee is indebted, &c., while the first contains a specification of how, or by what means, he is indebted to, or has property of the defendant in his hands; so that we are inclined to view them as constituting but one allegation — one issue. If the plaintiff had simply averred that the garnishee was indebted, without pointing out how or wherein, there 'might have been a question of its sufficiency. The remaining question, concerning the amendment, is, whether it could be made at that stage of the case — that is, after the cause had been taken to the Supreme Court ? In this fact, probably consisted the reason of the refusal to permit the amendment, upon the ground that the cause must be tried anew upon the same pleadings. The 1759th section of the Code is: “ The court may allow material amendments at any stage of the proceedings, upon such terms, and subject to.such rules as it may prescribe.” We should not be inclined to lay great emphasis upon the words “ at any stage of the proceedings,” for there is much reason in the argument, that they were intended to apply to the ordinary course of an action, before it comes to an appellate court. But taking into view this language, with the general tone of the Code, with reference to coming to the substance and merits of a cause, and considering that there is no really strong reason against it, apart from the question of costs, and then remembering that this matter of costs is entirely within the discretion of the court, we believe it permissible. The practice, even now obtains in substance. This court sometimes sends a cause back to the District Court, with leave to amend. We will hold that the court should have allowed the amendment, believing that the practice will tend to the ultimate attainment of truth and justice. Another error assigned, is the rejection of the evidence offered ; that is, the notes, the judgment, and the witness, McIntosh. The foregoing remarks show, that in the opinion of this court, they should have been received, at least with the amendment, if not under the former pleading. — 337 — The garnishee makes the question in his argument, whether he can be charged after the settlement which he alleges that he made with Hathaway. This is not within our reach. The judgment of the District Court is reversed, and a writ of procedendo is awarded.