
    J. R. Marshall v. Grand Gulf Railroad and Banking Co.
    When the appeal bond is not sufficient in amount to authorise a suspensive appeal, but is good for a devolutive appeal, the appeal will not be dismissed, but the plaintiff may take out execution if the bond be not sufficient in amount to stay it.
    Where the debtor of a corporation is garnisheed upon a debt which was payable in the notes or obligations of the corporation, he cannot be condemned to pay the amount of the debt in current funds. The judgment should be that he pay in the notes or obligations of the corporation, within a certain specified time, or that he shall, in default, pay a certain sum of money.
    APPEAL from the District Court of Tensas, Selby, J.
    Appeal by Thos M. and E. D. Newell, garnishees.
    
      J. J. Amonett, for plaintiff,
    contended: The garnishees failed to pay or deposit in court the amount of their liability to the defendant, as contained in their answers, and decreed against them, by reason whereof, the plaintiff was unable to execute his judgment by corporeal seizure, &c. The plaintiff took a rule against the garnishees to show cause why they should not comply with the j udgment of the court, and in default thereof, that the rule should be rendered absolute, and that the plaintiff recover of them the amount of his judgment, with interest, at eight per cent, &c. See Miss. Law. They failed to comply with the rule and order, and judgment was rendered accordingly.
    When the plaintiff once obtains judgment agaiust the defendant, all that is required is to obtain an order on the garnishees to pay over the funds of the defendant in their hands. 18 L. R. 405. The notes of the bank not haviüg been deposited in court, the judgment against the garnishee was properly rendered. 5 R. R. 033. The appellants have not complied with the order of appeal, in giving bond for the amount required by law. The appeal therefore should be dismissed ; if not, the judgment should be affirmed, with costs.
    
      Benjamin and Micou, for garnishees,
    contended: The entire proceedings are so irregular and anomalous, as regards the garnishees, that it is difficult to apprehend in what single step taken by plaintiff they can be supported. The errors are apparent on the face of the record; but, in addition to these irregularities, the proceedings are indefensible on the merits. Let us first examine the questions of practice : 1st. It is alleged in plaintiff’s rule, and shown by the act of mortgage, that the debt attached or attempted to be attached, was one evidenced by promissory notes. On the execution, the same debt was sold to plaintiffs. But, both the attachment and execution are totally irregular, because the notes have never been taken into possession by the sheriff. The notes are still in possession of the Grand Gulf Bank, and no valid seizure of them has yet been made. Fluker v. Ballard, 2 Ann. 338. Simpson v. Attain, 7 Rob. 504. Gobeau v. Carrollton Compamy, 6 R. R. 348.
    2d. If the seizure and execution were valid and legal, then the plaintiff, by virtue of his purchase under them, became owner of tho debt due by the garnishees to the bank. The proceedings against the garnishees as such were thereby at an end. They were out of court. If, after having bought the debt due by the garnishees, plaintiff desired to collect it, he could only do so by suing them. They could not be brought into court by a rule, and the attempt to proceed against them in that form is totally irregular.
    The whole of the evidence taken on the trial of the rule is in the record. The rule was taken to show cause why garnishees should not pay $5400, and interest, for failing to deposite notes and obligations of the Grand Gulf Bank to the amount of $13,608 41. This rule was made absolute, without a particle of testimony as to the value of the Grand Gulf Bank obligation. In no point of view can this judgment be sustained. If the obligation of the garnishees was to deliver a certain amount of obligations of the bank, the creditor can obtain the specific performance of this contract, or money damages for the breach of it. As money damages were claimed in this case, and no proof of damages was made, plaintiff should have been non-suited. Roberts v. Stark, 3d Ann. 73. If the obligation be considered an alternative one, or to pay a certain amount in Grand Gulf notes, or in cash, then the judgment should have been in the form settled in the case just quoted.
   The judgment of the court was pronounced by

Eustis, C. J.

Thomas M. and E. D. Newell have taken a.n appeal from a judgment rendered against them in the Court of the Tenth District sitting in the parish of Tensas. Gordon, against whom judgment was also rendered, filed his petition of appeal, but has given no bond; the judgment against him is consequently final. There is a motion to dismiss the appeal made by the counsel for the appellee, on the ground that the appeal bond is not for a sum sufficient to operate a stay of execution. The bond being tor a sufficient sum to cover all reasonable costs, the appeal stands with the right of the plaintiff to take his execution, in the event of the bond being insufficient in amount to stay it. Ralph v. Hoggatt, 2d Ann. 462. Lewis, Executor, v. Splane, 2d Ann. 755. The motion to dismiss therefore fails.

It.appears, that on the 21st June, 1844, in the late Court of the Seventh District sitting in the parish of Tensas, the plaintiffs having recovered judgment against the defendant in this suit, the Grand Gulf Railroad and Banking Company, took a judgment against the appellants, who were garnishees. By this judgment, a privilege ofi certain debts due' the defendants by the garnishees was decreed, which were ordered to be sold,- to satisfy the judgment against the defendant; it then went on to decree the garnishees to be indebted to the defendants in certain sums payable in notes or obligations of the banking company, and that the notes .by which the debt to the bank Was created be' held subject to execution, or other order of the court.

On the 20th of March, 1849, the district court sitting in the parish of Tensas, rendered the judgment from which the present appeal is taken. By this judgment the plaintiff recovers from the appellants and their co-garnishee Gordon “ in solido, and in current funds,” the sum of $5400,- with interest at eight per cent, from May, 1838, and costs; he was subrogated to the rights of the banking company in a certain mortgage, by which the notes of the appellants were secured, and the property mortgaged was ordered to be sold to satisfy the plaintiff’s debt. This judgment was rendered against the appellants on an order of court nisi, that they pay or deposit in court the amount of their indebtedness to the banking company, or in default thereof,- that the plaintiff recover from them the amount of his debt, with privilege on the property attached. We know of no warrant of law for a judgment by which a plaintiff is decreed to recover in current funds a debt'; the formula is entirely without precedent, and inadmissible.

The proceedings of the plaintiff are under the original garnishment, and must be conducted according to the laws regulating attachments. The article 265 of the Code of Practice provides for the remedy of the attaching creditor against property attached, and the power of courts over garnishees, withholding attached property, is certainly adequate to the full enforcement of the creditor’s right. The plaintiff has his judgment of June, 1844. The garnishees have the right .to require his proceedings in garnishment to be regular, and in conformity with law.

It is therefore decreed, that the judgment of the court below be reversed, as to the said appellants Thomas M. and E. D. Newell; and it is further decreed, that unless within thirty days after the present decree becomes final in this court, the said appellants, or either of them, shall produce and file in the court below notes or obligations of the said Grand Gulf Railroad and Banking Company, to an amount equal to the sums following, to wit, the sum of $10,538 41, an(j ^g ful^]jer sum 0f $3070 with interest on said last named sum at the ■ rate of eight per centum per annum, from the 8th day of June, 1838, until paid and costs of this suit, the said plaintiff have leave forthwith, after the expiration of said delay, to issue execution against the said Thomas M. and .E. D. Newell in solido, for the sum of $5400, with interest at the said rate of eight per centum per annum, from the 8th June, 1838, until paid, and costs of this suit in the court below; the said principal sum, interest, and costs, to be made and collected in lawful money of the United States; and it is further decreed, that the plaintiff pay the costs of this appeal.  