Lundie v. Bradford , 26 Ala. 512 ( 1855 )

RICE, J.

—Our first impression was, that the answer of the garnishee might fairly be construed as an admission, that the money he received from Fowler was received and held by him as the money of Fowler, which, if convenient, he would apply, under Fowler’s direction, to the payment of the government price for a quarter-section of land at the land-office at Lebanon for Fowler. But, upon careful examination, we find that the answer does not admit that the money has ever been the money of Fowler since the garnishee received it. On the contrary, it shows that the money became the money of the garnishee eo instanti when he received it; for it asserts that, in consideration of said money and the note described in the answer, the garnishee agreed to enter in said' land-office, for said Fowler, a quarter-section of land, and subsequently, and before the service of garnishment, filed in said land-office'a land-warrant calling for one hundred and sixty acres of land to be located for said Fowler. This agreement is valid.—Fitzpatrick v. Hanrick, 11 Ala. 783. But, although the agreement is valid, and by its force the money became the money of the garnishee, yet such an agreement cannot be made available to a judgment creditor of Fowler under the process of garnishment. For the settled rule in this State is, that garnishment only lies to subject those demands for which the judgment debtor could maintain debt or indebitatus as-sumpsit.—Cook v. Walthall, 20 Ala. 334.

It is too plain for argument, that Fowler could not maintain debt or indebitatus assumpsit against the garnishee, upon the facts stated in the answer. There was, therefore, no error in the judgment of the court below discharging the garnishee upon the facts shown in his answer, and the said judgment is affirmed.