#### JAMES W. PATTON *vs.*SAMUEL SMITH.

An attachment, served in the hands of a garnishee as a debtor, is substantially an action at Jaw by the defendant in the attachment, and, therefore, the plaintiff in the attachment cannot recover against the garnishee, in a case in which the defendant in the attachment could not have recovered the same debt.

The case of *Gillis*v. *McKay,*4 Dev. 112, cited and approved.

Appeal from the Superior Court of Law of Buncombe County, at the Spring Term, 1347, his Honor Judge Hioic presiding.

This was an action of assumpsit, on the defendant’s acceptance of an order drawn on him by one Newland, in favor of the plaintiiF for $123, expressed in the order to be “the balance in your hands on the McCraw note, when collected.” It was tried on *non assumpsit.*On the trial the plaintiiF did not produce the order; and, to account for not doing so, he gave evidence to the Court, that there had been a *former*trial of this suit, and that the order was then produced by the plaintifF’s counsel and proved ; and one of the gentlemen, who was of counsel for the plaintiiF on that trial, stated that he had it at that time and supposed he had put it among-his client’s papers in cases in that Court; but that, upon diligent search, he could not find it among his papers, and, therefore, he believed, that it was left with the Clerk of the Court among the other papers of the cause. Another gentleman, who was also of counsel with the plaintiff at the former trial stated that it was not in his possession, and that he believed it was put away among the papers in the cause by the counsel or jury, and left with the Clerk. The Clerk then stated, that he had no recollection of having the paper, and that he had diligently searched all his files *441of tbe term of the former trial, and had.not been able to find it. Upon that evidence, the Court allowed the plaintiff to prove the contents of the instrument and its execution by the drawer and acceptor. ’(

The plaintiff further gave evidence, that Newland held a note on one McCraw for $800, payable, in the summer of 1838, and was indebted to the defendant in the sum of $677, and, for the purpose of paying it, that he transferred to the defendant on the 3rd of July, 1838, McCraw’s note, either by endorsement or delivery, it did not appear which, leaving’ a balance of $123 due on McCraw’s bond belonging to Newland, when it should be collected. For that balance this order was drawn .and accepted, as above stated, in order to pay that sum, which Newland owed to the plaintiff. The plaintiff further gave evidence, that McCraw was entirely solvent, and that in .1839 the plaintiff called on the defendant for payment of his acceptance, when Ke replied, that the money had been taken out of his hands by attachments, at the instance of other creditors of Newland, and therefore he refused to pay the plaintiff.

The counsel for the defendant insisted, that, to entitle the plaintiff to recover, he ought to shew, that the defendant had collected McCraw’s note, and that there was not sufficient evidence of that fact; and he prayed the Court so to instruct the jury. The presiding Judge thereupon stated to the jury, that they ought not to find for the plaintiff, unless they were satisfied, that the defendant had collected the debt from McCraw, when the plaintiff demanded payment from him; and that there was evidence given for the plaintiff, from which they might find that fact.

The counsel for the defendant further prayed the Court to direct the jury, that, as the plaintiff did not prove that McCraw’s note was indorsed to the defendant, the sum of $123, claimed by the plaintiff, was subject to be attached by other creditors of Newland, and, consequently, that the -plaintiff could not recover ; which instruction *442tbe Court refused to give. There was a verdict for the plaintiff and a judgment, and the defendant appealed.

*N. W. Woodfin, Edney*and *Gaither,*for the plaintiff.

*Francis,*for the defendant.

Ruffes, C. J.

We think the evidence of the loss of the instrument was sufficient to let in proof of its contents. The affidavit of the plaintiff might have been added, and doubtless would have been required, if it had appeared, that he had the possession at or after the former trial, or if there had been evidence to raise a probability that it had since come to his hands. But there was no suggestion, that the plaintiff was even present, when the case was first tried, *or*that *there was any opportunity for*him to get the paper. The counsel distinctly stated, that they, and not their client, had it in possession, and that it was kept after the trial either by one of them or the clerk; and upon search by all those gentlemen, in whose custody it certainly had been, if has not been found, and that sufficiently establishes the loss for the purposes of this question.

There was, certainly, evidence to be left to the jury of the collection of the money from McCraw by the defendant. Indeed, although it, was not direct evidence, it was little less convincing. The debtor Was good for the money, and it had been due about six months before the plaintiff's demand, and the defendant did not shew on the trial, that he had been put to a suit on the note, or produce or give any account of It; and, especially, when asked for payment, the defendant did not say, he had not collected the money, but impliedly admitted that he had by the strong negative pregnant, contained in his declaration, as the reason for refusing payment, that the money had been attached in his hands by Newland’s creditors.

The Court properly refused to give the last instruction, for several reasons. The jury ought not to be charged *443■upon abstract points, to which there is no evidence ; and here no such attachments were shewn as those supposed, Besides, if there had been, they could not' have protected the defendant, because he had engaged to pay the plaintiff on the single condition, that he should collect the money from McCraw, and, having done so, his engage* ment became absolute. Underthose circumstances, moreover, the money was not liable to attachment, if that were material, for, clearly, Newland could not have recovered the money from the present defendant; and, consequently, it could not be attached by a creditor of Newland,-since an attachment, served in the hands of a garnishee as a debtor, is substantially *an action at law by the defendant in attachment. *Gillis*v. *MbKay,*4 Dev. 172.-The defendant would have had nothing to do, but state the facts-in his garnishment, and they would have shewn, that the money did not belong to Newland, because he had accepted his order for it in favor of another person. That would have been equally true, whether the bond was- assigned or not; for if, in the latter' case, he acted, in a legal sense, as the agent of Newland in- collecting' the money, yet, when collected, he had a right to hold it for himself, as the fund, on which his acceptance was-founded. In every point, therefore, the opinions given by his Honor were correct, and- the judgment must be* affirmed.

Psa CsjaiAM-. Judgment affirmed.