Year: 1859

Opinions es the Supreme Court OF the


state of Tennessee, as knOxviIIe, Sep.


tenber Terms 1883.


State, for the Of D. AruoId Vs. Jshl B. Lnavsa.sr,


Garnsaee-


A f. ia. from the Circuit Court of Washington


County IN favor Of the State Of Tennessee for the


use OF Thos. ID. Arnold, against FurgusOn Green


Ct0rk and Crawford for SlI9.7l. was placed in the


hands OF the sheriff on the I'd March, 1869. The
return was no property found but that Jno B. Lima
weaver was garnisheed as the debtor of Clark one
( Of the defendants in the execution AT the next
term he appeared. and, upon his examination. made
| the following statement, which was reduced TO
writing:


w. r. Bottles and myself purchased a horse of ].
! P. Clark for Sl0O. which drove of South and
owed him for the same atthe time was garnisheed
We went together with horses 10 sell Bottles paid
4 the debt to Clark. after his return without INV
/ knowledge. / returned first. l wrote to Bottles
/ was garnsheed, before his return a short time l
| don't know whether he received my letter. and he
paid the note Clark after his return before saw
him. After he had paid the debt, saw him and told
him | Carnisheed and would hold him respon-
sible if had it pay, for his portion. Bottles did
not say anything about the letter / had written 10
him, nor did he say he did or did not know was
garnisheed. Some three weeks or more since had
the foregoing conversation with Bottles and j. was
only short time before he paid the money, and he
had not been long back from the South. He came
back near the lst OF Nay. We had settlement at
this time and had lifted Of our notes than he
had. We had previously given a number OF joint
notes for horses we had bought in partnership. /
told Clark, the next morning after was garnisheed
about it."


This entire statement and the court thoughtit
didnO make out case Of Liability and discharged
the ga7nishee from which Judgment this appeal was
taken by the creditors. We think his Honor erred in
this conclusion ItdOes not appear upon what ground
he based his opinion, but Is sustained in argument
upon the ground. that as the garnishment not
served upon Bottles and is not shown that he had





safely pay the debt OF the firm Clark, and there
by defeat the punishment Though this position
NAV be plausible think it unsound. II was the |
debt of the two. firm, and was subject to ap-
preparation the creditors of Clark BY this mode
of proceeding The moment the punishment was
served the debt being then due, passed out of the
control OF both the debtors and creditor, and, to
speak was in custody of the law. Notice 10 one |
partner would bind both, and neither could AVOID |
the bin ling force OF the garnlshment The money |
of Clark in the hands of the firm attached, and
could not be extricated by one nemher of the firm
more than the other. The debt was seized in legal
mode and Clark had no longer any right to receive
Ii: and payment to him would have more effect /
to relieve them than if it had been to any other per-
son. The law had made them the debtors of the |
plaintiff in the execution, instead of Clark. Bottles
was bound to know that his partner had become |
bound by law TO pay the debt to others and not to
Clark in which event he would be no longer their 4
creditor and consequently payment to him would /
be no discharge Its the same thing Ss if he had !
paid the debt to Clark after It had been previously
discharged by his partner The attachment Of the
debt by the creditors of Clark substituted them to
al she rights of the latter and deprived him of any
authority to receive the money, fully if il had
been once paid to him by the garnisheed partner. /
The effect of the garnishment was to bind the debt |
and place it out Of the power of the parties; NO \
change could affect the creditors, their right to
the money was fixed by law upon tho state Of facts
at the date of service,


Independent of this view. which we think conclu-
sye against the defen5e made, the circumstances |
pretty clearly show that Bottles must have known
c4 se existence of the garnisfmeat, If that We're
necessary and fTauduleHtly attempted in this way /
to defeat it and favor Clark. But let that be as it
may upon the other ground we are of opinion that
the Judgment should have been against the garni-
shee The partners viii be left to ADJUST their rights,
as best they may, for this double payment OF the 1
debt With that we have nothing now to do.


The judgment wil' therefore, be reversed and /
Judgment rendered here against the garRishee for
the proper amount CAKVrHERs.


Since the disposition of the above case a question
has arisen upon the proper disposition of the costs
Of the garuishment. which it may be Of some inn
portance in tie practice to settle By the Code sec


.The earnishee shall have the pay and be entitled
to the privileges of witness, and shall recover cost
against the plaintiff, The glfshmsnt is not success
fully prosecuted"


This would seem to imply, that if the plaintiff was
successful in rendering him liable, that he should





This section is in substance, and was doubtless in |
tended to adopt the act OF 1926, oh. Il, Car. and |
Mich. 364. Under that act this court held in HUFF |
VS. Mills, Yerg 4246 the garnishee was not sub |
ect to costs although the Judgment against him.
but that the plaintiff in the execution should pay
them. We think there was no intention to change /
that rule by the Code The justice and reason of |
the case accord with that construction The gar
nlshee is IN no fault lie could not pay the debt lac
owed the execution debtor, TO his creditor without
the judgment Of a court. lie fairly disclOses the
facts which establish his liability, and submits to
the judgment of the court 1t is nothing to him TO
whom he pays the debit provided he does i accord
ing to law, 50 as TO get legal discharge. The whole
proceeding and the result is for the benefit Of the
execution creditor; and it is right that he should pay
the cost, rather than the gaFpishee who is IN no !
wrong. The execution debtor cannot be taxed be- !
cause he is not party to the proceeding. We think
il right to ahere the rule established in the
of Huff vs. Mills under the act Of 1876, think
il just and the Code does not change il. How it |
would be if the garnishee had resisted and appeal
ed from Judgment against him. or If the fund nhi
hands was more than sufficient to pay the execution
and cost we need not now say, that is nOt the
in Judgment


The coats in both courts viii be taxed to the gar
nsheeing creditors. CARCTHERs.


A true copy. Test G. W. NELsoS, Clerk