
    William Carson, Pl’ff in Error. vs. Hiram S. Allen, Def’t in Error.
    Where a suit is instituted by a creditor, against his debtor, and, as based upon that, applies for Garnishee process against one, who is alleged to be a debtor to the defendant in the suit, on a negociable piomissory note, not then due, and not then shown to bo the property or in the possession of the defendant, it was held that the Garnishee could not be made liable on tho judgment obtained against the defendant.
    In order to fix any liability upon tho Garnishee, it must appear by competent evidence, that ho had in possession property, credits of effects, belonging to the debtor, in the suit; or that he was indebted to him.
    A negociable promissory note, past duo, givon by the Garnishee to a defendant, and liable to be transferred, so as to give to any holder the right of action upon it, as against the maker, is not a caso where Garnishee proceedings will bo entertained against thp maker.
    jf, on being summoned, the Garnishee does not, in his answer, disclose any indebtedness, to tho defendant in the suit, nor that ho' had any property, credits or effects, belonging to him, it is error, in the Court before which tho suit is depending, to hold him liable, for the claim of tho plaintiff against the defendant.
    This was a suit instituted in the late Dist2-iet Court of Crawford County by attachment by the defendant in error against one George C. Wales, who was alleged to have departed the Territory. The plaintiff in error, who was a partner in business with one Eaton, was summoned as Garnishee, and judgment by default was obtained against the defendant Wide#. After the plaintiff in error had been summoned, he i^ade a motion to dismiss the, proceedings against him and his partner for several reasons, which were overruled; but no exceptions were taken, and the motion to dismiss was denied by the Judge.
    After which, the plaintiff in error, on interrogations being put to hirp, disclosed, that he and his partner Eaton, in the fall of 1845, and before being summoned as Garnishee, had executed to Wales, in the name of their firm, a negociable promissory note for about $1,100,00, to fall due in August or September, 1848; and which had not become due at the time he was summoned as Garnishee. That at the giving the noto, Wales desired it should be made negotiable, because he designed to turn it out to his creditor?- That he had not been notified of its transfer, and that it had not been paid.
    After this, a scire facias was issued against the plaintiff in error and his partner Eaton, as partners, which was personally served upon Eaton, and upon Carson by copy, left with Eaton, hi's partner, without saying that it was left, “ at his last and usual place of abode.”
    At the return term the said Carson & Eaton moved to quash the Scire Facias for the following reasons:
    Because the said scire facias did not recite the record and proceedings upon which the same purported to be founded; and was in other respects insufficient and informal, and was not such as was contemplated by law, and the rules of the Court, and for other imperfections and insufficiencies on the face of the papers.
    This motion was overruled by the Court, to which exceptions were taken by the plaintiff in error and Eaton, and the bill of exceptions filed.
    The plaintiff in error then craved oyer of the whole proceedings, and flowed cause in the nature of a demurrer thereto, and contended as follows:
    That the giving the negotiable note by the plaintiff in error for himself and partner, extinguished the debt due from them to Wales, the defendant. Tudor vs. Whiting, 12 Mass. Rep., 212. Strong vs. Hart et al. G B. G. 160, (13 jE. C.L.R.p. 131.) Sheehy vs. Mandeville et al., 6 Cranch, 264. Chapman vs. Durant et al, 10 Mass. Rep., 47, and Motes to Ed. of 1843. Chittyon Bills, 195. Jones vs. Savage, 6. Wendell Rep., 658.
    
    That he was not liable as Garnishee, as it did-, no.t appear that Wales, at the date of the service of the Garnishee process, or at any time thereafter was in possession of the note; and as the note was,negotiable, and was given and received with the declared intention of being negotiated, the presumption was that it had- been negotiated, and had passed from Wales. Meacham vs. Me Coi - bett, 2 Metcalf, R. 352. Willard-vs. Sheafe. 4 Mass. Rep. 235. Dwight vs. Bank of Michigan, IQ 'Met. Rep., 58. Cults vs, Perkins, 11 Mass. Rep. 206.
    That an indebtedness upon a negotiable promissory note, payable in futuro, and not shown to be in the hands of the defendant, in attachment, is not property, moneys and-credits” in the Garnishee’s hands, “or due from Mm to the defendant,” within the meaning of the Statute. Statutes of Wis., p. 106, § 5. 1 Iowa Rep., p. 48.
    That no action could be brought and maintained upon this note by Wales, the payee, without proving its loss, and that it had not been transferred, and giving indemnity; and his creditors could not do indirectly that which Wales could not do directly. Chitty on Bills. 291, et seq.
    
    That the judgment would be no bar to a suit which might be brought against the plaintiff in error and hi* partner, by áh endorsee, as the1 note is a joint one fromi Carson & Eaton.
    The Court overruled the demurrer, ánd the plaintiff ini error refusing further to plead,' judgment was rendered against him for the amount of thfe judgment against Wales, and also for costs.
    To reverse the proceedings thus had in the cause, this' writ of error is brought.
    
      B. C. Eastman, for Pl’ff in Error.
    
      J. Ii.Kndwlton; for Def’t in Error:
    On the argument, the counsel for the plaintiff in error made the following points:
    1st, The Court erred in overruling the motion of the plaintiff in error to quash and dismiss the proceedings against him.-
    2d. The Coitrf erred in overruling the motion of the plaintiff in error to quash the scire facias and dismiss the proceedings against him, Waiter vs. Rucker, 5 23. C. L¡ R., 100, (1 Bro. Sf Bing, 490.) Magrath vs. Hardy, 33 E. C. L. R., 522, (4 Biiíg. N. G., 782.) Bac. M. Tit Scire Facias A, Bing. Ex. 123, 125.
    3d. The Court erred in overruling the demurrer of the' plaintiff in error.
    4th. The Court erred in rendering judgment against the plaintiff in error.
    5th. The whole proceedings were irregular, informal and void.
    On the argument the Court intimated to the counsel fot the plaintiff in error, that it was inclined to the opin-i on that a party Garnishee, who had executed a negociad 
      
      ble promissory note to the defendant debtors in a suit, could not be held liable under a garnishee proceeding,, unless the note at the time of those proceedings was past due, and waé held by the defendaut in this suit; and that he need go no further until the opposing counsel should be heard. The counsel for the defendant in error argued briefly in opposition to this intimation and it was thus submitted to the Court.
   By the Court.

Hubbell, J.

The Plaintifl in Error Was summoned as a Garnishee, and appeared and answered, that he and his partner, Eaton, had given a negotiable promissory Note, to Wales, the Defendant in the attachment suit; which was not then due; that the note had been made negotiable, to enable Wales to turn it out to his creditors; and that no demand of payment had been made of the makers.

Wo evidence was given showing that the note, at the time of serving the garnishee process, was owned by Wales, or was in his possession.

To render the Garnishete liable, it must appear that he had in his possession, “ property, credits or effects,” belonging to Wales the defendant in the attachment suit, or was “ indebted” to him. There was no evidence of property, credits or indebtedness^ other than the note made by Carson & Eaton; and, waiving the question whether that note could form the subject of attachment, in a suit against Carson alone, it i's clear that it was evidence of indebtedness only, to the ¡endorsee or bearer, wherever he might be. Thé note being negociable, was liable to be transferred from hand to hand, until due; and each subsequent holder Would gain a perfect right of action against the makers;

Holding the makers liable, under the garnishpe, process, before the maturity of the note, would subject them to pay it twice over or would defeat the action of the real owner. We must not so construe th.e statute relating to attachments, as to defeat the long-established rules of the law-merchant. That law, which gives currency and. character to negociable paper, has been incorporated into the statutes of Wisconsin, and is deemed of salutary effect, in the general business of the community.

Because, therefore, the answer of the Plaintiff in Error, did not disclose any indebtedness to the Defendant, Wales, nor disclose any property, credits or effects belonging to him, in the possession of the Garnishee, the judgment of the Circuit Court was erroneous. Whether a negociable promissory note, past due. may not be the subject of attachment, as credit or indebtedness in the hands of the maker, it is not necessary now to decide. Nor is it necessary to pass upon several other points in the case presented by the Plaintiff in Error.

Judgment reversed with costs.^  