#### Winterfield vs. Milwaukee and St. Paul Railway Company— Garnishee, etc.

*Garnishee may set up defendant's exemption, as a defense.*

1. Under the statute (R. S., ch. 120, sec. 113, as amended by sec. 1, eh. 161, Laws of 1871), a garnishee may set up. the defense that the property, money, credits, effects or indebtedness mentioned in the affidavit for garnishment, are exempt from seizure or sale on attachment or execution.

2. When the garnishee knows the fact of such exemption, and especially when he is requested by the principal debtor to set up that defense, ■ «yuíBmwhether he must not do so to protect himself from liability *to*such debtor.

APPEAL from the County Court of *Milwaukee*County.

' The plaintiff having commenced an action, on a promissory note against one Patterson, before a justice of the peace, caused the defendant, the *Railway*Company, to be summoned as a *590garnishee. Tbe affidavit upon wbicb tbe summons to tbe garnishee was issued is in tbe form prescribed by tbe Bevised Statutes, cb. 120, sec. 113, as amended by Laws of 1871, cb. 161, sec. 1. That is to say, it states that tbe garnishee is indebted to Patterson, and that such indebtedness is not exempt from seizure or sale upon attachment or execution. Tbe garnishee summons was also served upon Patterson, as required by tbe law of 1871, but he did not become a party to the proceedings by filing tbe notice that be claimed such indebtedness as •exempt from seizure, pursuant to tbe provisions of tbe law. (Sec. 3.)

Tbe railway company, by its general solicitor, Mr. Cary, appeared before tbe justice, and answered that tbe company owed Patterson seventy dollars, being bis wages as a conductor on its railroad for tbe preceding month; that this was tbe extent of its indebtedness to him; and that Patterson then bad a family for whom be provided, and who were wholly dependent on him for support. An issue was made in due form of law upon such affidavit and answer, which was afterwards tried; and tbe justice rendered judgment against tbe railway company, tbe garnishee.

Tbe company appealed to tbe county court of Milwaukee county; and, on tbe trial of such issue in that court, in addition to tbe facts stated in tbe answer made before tbe justice, it was proved that Patterson resided in this state from a time previous to tbe commencement of tbe action against him, and that when tbe action was commenced, be notified tbe proper officers of tbe railway company that be claimed tbe indebtedness due him from tbe company as exempt from garnishee process, and requested tbe company to make that defense in tbe garnishee action.

Tbe county judge held that tbe debtor alone bad tbe right to claim such exemption, and gave judgment for tbe plaintiff, from wbicb tbe railway company appealed to this court.

*6'ary &*Cottrell, for appellant:

*591Tbe garnishee can set up the defense that the indebtedness sought to be garnisheed is exempt. The affidavit must state that it is not exempt, which is a material allegation, and, if the answer traverses that allegation, the question is to be tried upon the issue so formed. Ch. 161, Laws of 1871. It is not only the privilege but the'duty of the garnishee to set it up. He must do it for self protection, where such indebtedness is absolutely exempt, because a judgment against him as garnishee will not protect him in an action by the principal defendant. Drake on Attachment., 479; *Loch v. Johnson,*36 Me., 464; *Clark v.*Averill, 31 Yt., 512 :

*M Fox Cook,*for respondent.

The statute (ch. 161, Laws of 1871) gives the right to claim the exemption only to the principal defendant, and points out the manner in which it shall be exercised.

LyqN, J.

This appeal presents but a single question, which is, whether a person who has been summoned as a garnishee, may answer that the property of the debtor in his hands, or his indebtedness to such debtor, is exempt by law from seizure on attachment or execution; and, by proving that it is so exempt, defeat the garnishee suit.

We are clearly of the opinion that the garnishee may interpose such defense. The statute makes the affidavit the complaint in the garnishee action, and requires that, among other things, it shall state “that the property, money, credits, effects or indebtedness mentioned therein are, to the knowledge or belief of the person making such affidavit, not by law exempt from seizure or sale on attachment or execution.” It would be very remarkable if the legislature intended, when it enacted that such affidavit should be the complaint in the action, that the garnishee should not be permitted to answer one of its most material averments of fact. Were it intended to create-such an anomaly in practice, the law would have expressly so provided.

Besides, it is not at all certain, had the railway company neg*592lected to interpose sucb defense, that Patterson could not have compelled it to pay the debt to him, notwithstanding the garnishee judgment. Knowing that the indebtedness was exempt, it was not only the right of the company, but very probably it was its duty, for self protection, to interpose the defense. And this the more especially after Patterson had formally requested it to do so.

The following authorities are to the same effect. • Some, but not all of them, are founded upon statutes requiring the garnishee to interpose the defense, if the property sought to. be reached by the process, is exempt., But it is believed that such statutes are merely declaratory of the law as. it existed before they were enacted. *Gery v. Ehrgood,*81 Pa. St., 329; *Staniels v. Raymond,*4 Cush., 314; *Davenport v. Swan,*9 Humph., 186; *Lock v. Johnson,*36 Maine, 464; *Clark v. Averill,*31, Vt., 512; Drake on Attachment, § 479.

The judgment of the county court must be reversed, and a *venire Re novo*awarded.

*By the Court.*— So ordered.