
    Turner vs. Armstrong & Oglesby.
    Where a garnishee states upon his examination that he executed a note to the execution debtor, but thathedocs not know who has the noto or who owns it, &c; Held, that no judgment can he given agajnst him,
    Where property levied on and sold, sells for more than ⅛ due on the judgment, the constable line no authority to receive the note of the bidder for the excess without the consent of the execution debtor; and unless the latter receives sueh note or agrees to receive it, the relation of debtor and creditor between him and the bidder does not exist. In such case, the latter, cannot be garnisheed as his debtOA
    The defendants in error, obtained before a Justice of the Peace, in a suit commenced by attachment, a Judgment against one Thomas H. McDonald; and the plaintiff in error, upon a garnishment citation, had judgment rendered against him before the justice, as the debtor of McDonald, from which he appealed to the circuit court. In his examination in the circuit court upon interrogatories, he stated that “before the garnishment was served upon him, a negro girl of “Thomas H. McDonald, was sold at constables sale to pay “his debts; he bought her, paid all the bid except one hundred “and ninety dollars; for that amount he executed his note, “made payable to Thomas H. McDonald, whose negro was “sold, payable one day after date; at that and this time, Mc“Donald owed him one hundred dollars or the rise. When “he executed the note he gave it to the constable; after the “examination before the Justice, he saw it in the hands of “William Turner; he never had paid it; he gave the note in “part pay for the ampunt of the negro he bought at constables “sale. He does not know who now has the note except as “shown; he did not at the time the garnishment was served on “him, owe said McDonald any thing, has none of his effects “in his hands, does not know of any person who owes bim “any thing, or has any of his effects in their hands, except a “gun James F. Turner has.” Upon this statement, the circuit court gave judgment against the garnishee, the plaintiff in error.
    
      Jl. J. Murchbcmks, for plaintiff in error.
    
      <&• Cullom, for defendant in error.
   Reese J.

delivered the opinion of the court.

There are two distinct grounds upon which we think this judgment should not have been rendered.

1st. Although it has been determined by this court, solicitous to escape from the determination, that debts, evidenced by negotiable paper are subject to the general laws relating to garnishments, (7 Yerg. 44. Hightower v. Smith, note) yet it is distinctly laid down in the case of Huff v. Mills and others 7 Yerg. 42, that the “liability in such cases of a garnishee depends upon his answer, which in this state is conclusive. If he answer, that he executed the negotiable note, or bill single, but does not know where it is, or who holds it, he does not • state that he is indebted to the debtor of the attaching creditor, and no judgment can be given against him.”

2nd. The relation of debtor and creditor between Turner and McDonald, does not appear in point of law to have been created by the transaction detailed in the statement of the garnishee. McDonald’s property was sold for the payment of his debt, and the plaintiff in error seems to have bid one hundred and ninety dollars beyond the amount of the execution. Instead of receiving the surplus in money for the defendant in the execution as was by law his duty, the constable took the promisory note of the purchaser, payable indeed, to McDonald, but it does not appear that McDonald was a party to this arrangement, or accepted said note, or ever knew of the transaction. If he did not sanction the transaction, and accept the note in lieu of the money, the constable was indebted to him, and the plaintiff in error to the constable. Shaw v. Smith, 9 Yerg. 97.

Upon the whole, the judgment must be reversed, arid this court proceeding to give such judgment as the circuit court ought to have given, the garnishee, the plaintiff in error will be discharged, and the defendant in error will pay all costs.

Judgment reversed.  