Allen v. Morgan , 1 Stew. 9 ( 1827 )

JUDGE GAYLE

delivered the opinion of the Court.

Allen was summoned as garnishee on an attachment issued at the suit of Morgan, and returned to Madison Circuit Court; and in his answer stated that he had given to the defendant his note for $1200, due 25th December, 1824, which was yet outstanding; that he has matters of set off against the note, but does not know to what amount, until a settlement with defendant.

The Circuit Court rendered judgement against Allen for the S1200, “subject to said offsets in his garnishment mentioned.,” and he now assigns as error, that the judgement does not shew any amount due, and that the answer does not contain sufficient certainty to be the foundation of a judgement.

It was contended in the argument that Allen was bound to know the amount due to him from the defendant, and if judgement has been rendered against him for too much, it must be attributed to his own negligence. If the an* swer was unsatisfactory, it was competent for the plaintiff in the attachment, to require one more certain, or to )lave formed an issue, by which the sum really due could have been ascertained. But he has thought proper to rely entirely on the answer, and the facts therein stated must be taken as strictly true. If a jury had returned a special verdict, setting out the facts as stated in this answer, it would not have authorized the Court to render judgement for any amount. Let the judgement be reversed and the cause be remanded.

Kelly and Hutchinson, for plaintiff. Clay and M‘Clung, for defendant in error.