#### Benjamin F. Carr, plaintiff in error, *vs.*A. H. Lee, executor *et al.,*defendants in error.

Where a summons of garnishment has been served on a defendant, and he can protect himself in a Court of law by filing his answer, stating the fact as to his indebtedness, a Court of equity will not interfere by granting an injunction to restrain the parties in the exercise of their legal remedies.

*377Garnishment. Set-off. Injunction. Before Judge Green. Newton county. October, 1871.

This bill contained the following averments: Carr, late in 1862, or early in 1863, contracted with Isaac P. Henderson for a house and lot in Covington. Carr then lived in Covington, and had a comfortable home. He had married Henderson’s youngest child. Henderson was then nearly seventy years old, and his wife was aged. Henderson’s other children were married and had homes. Henderson and his wife lived alone. Henderson was old, and his eyesight was failing, and proposed that Carr should sell his home and live with him. After being urged thereto, Carr sold his home, now worth $3,000 00, on credit, and has lost nearly its whole value, by reason of the purchaser having resold it and being insolvent.

"When Carr went to live with Henderson, he bought Henderson’s house, giving therefor his note for $5,000 00,. to be due at Hendersou’s death, without interest, and allowing Henderson to live with him and use part of the house during his life. In the fall of 1864, Henderson died testate. By his will, Augustus H. Lee was appointed his executor, and has qualified as such. Mrs. Henderson survived Henderson, and continues to live with Carr, he furnishing her board, etc., etc. By the will, Lee was directed to pay Mrs. Henderson $5,000 00 during her life, and a sum sufficient to buy a servant, to serve her during her life. Lee found Carr’s note among Henderson’s assets, and took charge of it. Mrs. Henderson would havejaceepted it, but Lee would not let her have it.

Upon Carr’s refusal to pay said note, Lee sued him. The matter was arbitrated, and the award was, that Carr should pay but $3,500 00, because it was a Confederate contract. This award was made the judgment of the Superior Court, in March, 1868; a *fi. fa.*was issued thereon, and was levied upon said house and lot. The sale was stopped by affidavit, under the Eelief Act of 1868. This affidavit was dismissed. *378The sheriff is now proceeding to sell said land, under said *fi. fa.,*in November, 1871. Mrs. Henderson sued Lee, as executor, and obtained a judgment against him for, say $7,000 00, on the 4th of October, 1871, and has garnisheed Carr. If he pays Lee, she will take a judgment against him for the $3,500 00, and interest, which he owed Lee, as executor, when he was garnisheed. And she is unable to respond to him in damages. Besides, she owes him, Carr, say $2,500 00, for board, etc., and, in equity, this account should be allowed him as a set-off against her garnishment.

He prayed injunction against the sale by Lee’s *fi. fa.,*and that this set-off be allowed, and that he pay the balance to Mrs. Henderson, in full discharge of said *fi. fa.,*and that she be enjoined from pursuing her garnishment at law. The Chancellor, after argument, refused the injunctions. That is assigned as error.

A. B. Sims, for plaintiff in error.

L. B. Anderson; J. J. Floyd, for defendants.

Warner, Judge.

This was a bill filed praying an injunction on the following statement of facts : In March, 1868, Lee, executor of Henderson, obtained a judgment against Carr, the complainant, for $3,500 00, on which an execution issued, was levied on Carr’s property, and advertised for sale by the sheriff on the first Tuesday of November, 1871; that, on the 4th October, 1871, Ruth Henderson, a judgment creditor of Lee, whose judgment was obtained 29th March, 1871, sued out a summons of garnishment against Carr, requiring him to answer at the Superior Court of Rockdale county, on the second Monday in March, 1872, what he was indebted to Lee. The Court refused the injunction, and the complainant excepted. If Carr’s property had been sold as advertised on the first 'Tuesday in November, 1871, and had satisfied Lee’s judg*379ment against him, then he would not have owed him anything, and could have so answered the summons of garnishment in March, 1872, but if the sale of his property did not satisfy Lee’s judgment, then he could answer what amount he then owed Lee after deducting the amount for which his property levied on had been sold, so that there would have been no difficulty in protecting himself from having to pay the debt twice, as the summons of garnishment did not require him to answer until March, 1872, and Lee’s judgment, being of older date than the service of the summons of garnishment, would have protected him as against Ruth Henderson’s garnishment as to the amount of the sale of his property. Let the judgment of the Court below, refusing the injunction, be affirmed. *381There can be no question as to the right of sureties to plead the pardon of their principal in answer to and defense of their contract with the State, to produce him to answer an alleged offense. This legal proposition is abundantly sustained by authority. It would work the grossest injustice if it were held otherwise. The accused is under arrest, by the State, for an offense against the criminal *law;*he is surrendered to his securities, upon their entering into a bond and binding themselves for his appearance at the Court to answer the charge made. If the State pardons the principal and blots out the offense, there is nothing for him to answer; and it would be the grossest injustice to bind the security, when the means of compelling his attendance had been annulled.

*379Lochrane, Chief Justice, and McCay, Judge, concurred for different reasons, but wrote no opinions.