Jennings v. Summers , 8 Miss. 453 ( 1843 )

Mr. Justice Clayton

delivered the opinion of the court.

The plaintiff in error was summoned as a garnishee by the defendants in error, upon an execution which they had issued against John H. Jones.

The garnishee answered that he had in his hands three hundred and thirty-one dollars and forty-six cents, in notes of the Mississippi and Alabama Railroad Company, belonging to said Jones, which he offered to bring into court and surrender or pay as the court might direct. Upon this answer the court gave judgment against the garnishee for three hundred and thirty-one dollars and forty-six cents, which is of course to be paid in legal currency. This is alleged to be-error, and the case is brought up for correction upon that ground.

By the statute regulating proceedings against garnishees summoned under process of execution, if the garnishee state that he is indebted to the defendant in execution, judgment may be entered against him for the amount of such indebtedness. But if he state that he has effects of such defendant in his hands, and surrenders the effects, he is entitled to his discharge, and the sheriff is directed to sell them as if levied on by the execution. Here the garnishee did not admit that he was indebted to the defendant, unless in notes of the Brandon Bank, and these he offered to surrender. The answer is not very distinct, and it does not very clearly state whether he admits any indebtedness, or states that he holds these Brandon notes as the effects of the defendant Jones. We do not think this to he material, for in either event, upon tendering the notes in court, he was entitled to his discharge, if the answer was not controverted.

The judgment must be reversed and the cause remanded. If the defendant deliver up the notes of the Mississippi and Alabama Railroad bank, he will be discharged. If he fail to do so, the value of the notes at the time when received by him must be ascertained, and judgment rendered against him for that amount. He is entitled to satisfaction for his attendance. See How. & Hut. 558.

Judgment reversed.