The daily clarion. [volume] (Meridian, Miss.) 1863-1866, 1866-03-04

that the process is against a debtor of the
administrator. But there is no substantial
difference IN principle between the two
cases The statute establishes the rule, that
assets III the hands of an administrator are
/ not in the custody of the law so as not TO be
+ subject to the garnishment of a creditor of
/ the estate. Whether these assets are IN his
Own hands and he is proceeded against by
garnishment, or are in the hands Ofone who
Is debtor to him as administrator, can make
no substantial difference III principle Tor
/ IN either case, the assets are Ill law p0ten-
I TALLY in his hands, and he is accountable TOR
/ them in either case. If the assets are NOT
/ exempt from carnishment when actually in
his hands. what sound reason can there be
! for their not being liable to garnishment by
/ a creditor of the estate when in the hands OF
! a third person who is bound to pay them to
himg For the statute establishes the rule
4 that the administrator may be garnlsheed,
/ because the assets of the estate may be sub
/ iactcd to the payment of its debts in that
i way and they are equally assets whether in
tie hands of the administrator i'll the shape
Of money, or money in the hands of others
and which they are bound TO pay to him
2 The process in this case was in tho nature
Of an execution. 1t was issued on a judg-
meut, and for the purpose Of subjecting the
property of the estate TO the payment Of the
deDt against if, when that property, by
lNtpDl4 VI IT'S IOIIi tbuIti II !''t VA ny
execution. and when there was 10 visible
property of the estate which could
be taken by execution Its object
was to enforce the Judgment by
execution against assets of the estate III the
-.'ishec'a hands, and in substance, it is not
idlf' .rrpt from the execution issued on iudg-
nent issued against an administrator and
levied on visible property OF the estate in
his hands That i every days practice I'M
der our law and it is settled that it may be
legally done, where the estate has not been
declared insolveut Sanders W. Douglass &
Hall, adul'rs 3. S. & NJ, 454
1t does not appear, i'll this case, that the
estate of Briggs had been declared insolyent
ut the time the garnishee was summoned;
and we, therefore, think that the process
was properly issued, and that the motion to
qnash it was rightly ovewuled.
The third error assigned is that the Court
rendered Judgment against the gaTnlshee on
his answer, when it showed that suit by
the administrator was pending and NJ issue
against him for the debt garnisheed.
1t is to be observed that the answer mere
Is states the facts tina, the garnishee had
fled plea of payment ON which issue was
taken, in that suit, and that it was then
pending. 1t does not state that the plea was
true or that the debt had been really paid,
which Of course would have been done if the
plea had been true. The answer, under the
circumstances, is a clear admission of the
debt And the fact that suit had been
brought upon il by the administrator did not
place it in a condition where il could not be
garnisheed by a creditor Of the estate; and
when the garuishce did not deny in his an
sver that he owed the debit the Judgment
ON it was properly taken.
Lastly. it i insisted that il was error TO
render Judgment against the surety on the
bond before Judgment was rendered against
the principal The statute on which this is
based provides that no final Judgment shall
he rendered against the surety until iudg-
ment shall be rendered against the principal,
fthe principal b. q resident Of this rt0te. Rev.
Code, 3-0 art. 800
But how is it 10 be made to appear that
the principal is a resident of this State
Certainly the Court cannot iudicially know
or presume that he was a resident of the
State when this judgment was rendered :
and 1t would appear to be more probable
that he was not since the process in this
case was returned mot found " as to him :
and it would appear that he was not sum
moued in the action of the administrator of
Briggs against him and Thrasher, since the
plea of payment in that case was filed by
Thrasher alone. But if he was resident of
the State, at the time, it was incumbent on
the garnishee to show it. 1t was his interest
to do So and if such had been the fact, it
was the duty OF the garnishee to make that
ground OF objection TO rendering the Judg-
ment against him, and it must have been
susceptible of proof, if true. Yet no objec-
zion on that ground appears to have been
made in the Court below, where if made it
might have been fully obviated; and it is
too late to raise it for the first time in this
Court,
1t is sufficient to say, that it does not APP
pear, by the record, that the principal was
resident Of this State at the time; and we
cannot hold this Judgment to be erroneous
upon the unwarrauted assumption that he
was such resident
Let the judgment be affirmed.
Elicit, j., did not sit in this case.