
    
      John Yongue vs. Henry Linton.
    
    A surety, upon whom as garnisheo — the absent debtor being the principal — a writ of attachment is served, cannot claim as creditor in possession, although after service of the writ he pay the debt.
    A surety until he pays the debt is not the creditor of his principal.
    The absent debtor must be ‘really and truly indebted’ to the garnishee at the time the writ is served, or he cannot claim as creditor in possession.
    
      Before Feost, J., at Chesterfield, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows :
    “ A copy writ of attachment against John Linton at the suit of Wm. L. Robinson, had been served on Henry Linton, who returned that he had five negroes of the absent debtor, in his possession, and on his giving bond to the sheriff, they were left in his possession. Afterwards, on the 8th December, 1849, a copy writ of attachment against John Linton, at the suit of Yongue, was served on Henry Linton. He made his return, admitting that he had in his possession five negroes of the absent debtor, to which, in his return, he made no claim, in his own right, as creditor, but referred to the attachment writ of Robinson, as having a prior lien and claim for payment out of the attached property. Henry Linton delivered the slaves to the sheriff, and they were kept in jail. John Linton, before the service of Yongue’s writ of attachment, had been arrested for some criminal offence, and Henry Linton was surety to his recognizance to appear. John Linton was convicted; and not appearing his recognizance was forfeited; and, in March, 1850, Henry Linton paid the amount of it to the solicitor. He then filed a declaration, as creditor in possession, it is said, and at this term recovered a verdict against John Linton for $500, the amount of the recognizance, with interest from the date of the payment. Some time after Henry Linton had delivej-ed the slaves attached to the sheriff, an order was made for the sale of them. Four of them, a woman and her three children were sold by the sheriff, under that order, for about $1230. This sum being sufficient to satisfy Yongue’s demand, on his part it was suggested to the sheriff that it was not necessary to sell the fifth negro. This was said to be a prime man, worth 7 or 800 dollars. The sheriff accordingly returned this negro to the possession of Henry Linton, and either by him or by John Linton the slave has been eloigned.
    
      “ On this case I was of opinion that if Henry Linton had any claim against John Linton, as creditor in possession, for the payment of which the slaves attached at the suit of Yongue might be liable, that satisfaction of his claim should be made from the slave, which was restored to his possession; and I would have ordered an issue to try the question whether Henry Linton’s demand was not paid, but the attorney of Yongue claimed an order for the payment of the proceeds of the sale of the attached slaves in satisfaction of Yongue’s judgment. The grounds taken were, that Henry Linton could not claim any part of the funds attached, as creditor in possession, because at the time of the service of Yongue’s attachment writ, Henry Linton was not a creditor of John Linton, not having then paid the recognizance; and further, that even if Henry Linton had been a creditor at the time of the service of Yongue’s attachment, he lost all lien and claim for payment, as creditor in possession, when he delivered the negroes to the sheriff, without notice or assertion of any claim against the absent debtor.
    “ On these grounds an order was granted for the payment of the attached fund to Yongue.”
    Henry Linton appealed and now moved this Court, to modify or reverse the order of his Honor, Judge Fuost, on the grounds
    1. Because, it is respectfully submitted, it was error in his Honor, in ruling that Henry Linton was not a creditor in possession, although he produced his recovery as creditor in possession, upon declaration filed immediately after his return as garnishee.
    2. Inasmuch as there was no testimony to impeach the recovery aforesaid, the order to pay over should have been subject to the amount of Henry Linton’s recovery.
    3. If it was at all doubtful whether the recovery was collusive or had been paid, his Honor should have directed an issue in some form to try the right of the garnishee to have satisfaction of his recovery, from the fund in the hands of the clerk arising from the sales of the property attached in the hands of Henry Linton.
    
      Clinton, for appellant,
    cited attachment Act, § 6, 3 Stat. 619 ; Walker Sp Bradford vs. Roberts, 4 Rich. 661; Bank vs. Levy, 1 McM. 431 j 1 Rich. 94.
    
      Inglis, contra,
    cited Havis vs. Trapp, 2 N. & McO. 130; Relph 6p Co. vs. Nolan, 1 Rice Dig. 77; 12 Pick. 328 ; Whit, on Lien, 68 ; Montague on Lien, 8; 1 Smith L. Cases, m. p. 422; Act 1844, 11 Stat. 290 ; 2 Bay, 224; Dud. 215.
   The opinion of the Court was delivered by

Fuost, J.

The sixth section of the attachment Act provides that “ in case the absent debtor or defendant, whose money, &c. shall he attached in the hands of any person, he really and truly indebted to the person in whose hands the money, &c. are attached, then such person, if his possession of the moneys, &c. was obtained legally and bona fide, without any tortious act, shall be first allowed his own debt, he forthwith filing his declaration and in every other respect proceeding as if he were plaintiff in the attachment.” The Act of 1844, 11 Stat. 290, directs the sheriff, when he serves the writ of attachment, to take into his custody the attached effects, unless the party in possession gives bond for the production of them, or unless he claims, on oath, to be a creditor.

It is unnecessary to determine the question, whether Henry Linton, by his surrender of the attached property to the sheriff, without making any claim, as creditor, has lost any lien which he might have had under the Act. The first enquiry must be, was Henry Linton a creditor of John Linton, at the time the plaintiff’s writ of attachment was served on him; and if not, can he claim to be preferred to the plaintiff, an attaching creditor, in the payment of his demand from the property which was attached in his hands ?

The Act provides that if the absent debtor, whose money, &c. shall be attached in the hands of any person, be “really and truly indebted” to the person in whose hands, the money, &c. are attached. With respect to time, it is plain that the absent debtor must be indebted to the garnishee at the time when the moneys, &c. are attached. If future indebtedness were preferred in payment from the effects in the possession of the garnishee, he might exhaust the effects by buying up the debts of others. At the time the plaintiff’s attachment was served on Henry Linton, he was surety for John Linton in a recognizance. A scire facias on the recognizance had been served on Henry Linton, returnable to the Spring term, 1850. On the fourth of March Henry Linton paid the recognizance, and on the fifth, filed his • declaration against John Linton. This was several months after the attachment had been served. It is confounding terms and ideas to say that the principal is debtor to his surety from the date of the joint liability ; — that when two join in a bond, the principal is debtor to his surety from the day of the execution, and that the maker of a note is indebted to his endorser from the date of the endorsement. The principal incurs no debt to his surety until his surety pays the joint demand. At the time the plaintiff’s attachment was served, the liability of Henry Linton on the recognizance was future, contingent and uncertain in amount. He paid the whole amount of recognizance before any judgment on the scire facias, with the design to charge it on the fund in dispute, and so make John Tongue pay the-penalty of John Linton’s offence. This is a specimen of the frauds which must ensue if the garnishee’s preference is not limited to debts “really and truly” due when the attachment is served.

In Mitchell & Co. vs. Byrne, decided at January term in Charleston, a garnishee creditor, with respect to the funds in his hands, was declared to stand on the footing of a plaintiff in attachment who had secured the first lien on the funds, by the first service of a writ. This is to be inferred from the direction that the garnishee shall forthwith file his declaration and in all other respects proceed as if he were plaintiff in attachment. In Relph vs. Nolan, 1 Rice’s Dig. 77, and Walker & Bradford vs. Roberts, 4 Rich. 561, it was held that a suit by attachment could not be commenced on a demand not due. Henry Linton therefore cannot claim payment of his demand, as creditor in possession, from the funds attached in his hands, in preference to the attachment writ of John Yongue.

The motion is dismissed.

O’Neall, Wardlaw, Withers, Whitner and Glover, JJ., concurred.

Motion dismissed’. 
      
      
         Ante p. 171.
     