
    Woodbridge v. Winthrop.
    A garnishee who once admits himself to be liable upon record, is estopped from saying afterwards, that he is not.
    A garnishee may avail himself upon a scire facias of his principal’s not being an absconding debtor at the time of the copy’s being left in service.
    Soire Eaoias against said Winthrop as agent, factor, trustee, etc. to Joseph Woodbridge, an absent absconding debtor.
    Plea in bar — That said Joseph was not at the date and service of the original writ, an absent absconding debtor; and the defendant had paid and delivered to said Joseph all the effects of said Joseph’s which were in his hand and possession.
    Plaintiff replied — That said Joseph was described in said original writ and in the copy left with the defendant, to be an absent absconding debtor, by which he had right by law and in fact did appear and defend said Joseph, his principal in said cause; that the defendant having in his hands a much greater sum than was due to the plaintiff, said Joseph instituted a suit against him for it, and before the special Superior dourt, holden at New London, in July A. D. 1789, recovered judgment for tbe same against tbe defendant, at wbicb time tbe defendant moved said court for a stay of said Joseph’s execution, upon tbe ground of tbe plaintiff’s foreign attachment lying against him; upon wbicb said court ordered said execution to be stayed until said Joseph procured and gave to tbe defendant a good bond with surety sufficient to indemnify bim against said foreign attachment, wbicb was accordingly done before said execution was taken out; that said Joseph was a bankrupt, and tbe defendant estopped to say that said Joseph was not an absent absconding debtor, upon tbe scire facias.
    
    Tbe defendant rejoined, traversing tbe defendant’s appearing and taking upon bim tbe defense of said Joseph in tbe original suit, as attorney to bim. To which tbe plaintiff demurred.
    Judgment — That tbe rejoinder of tbe defendant is insufficient.
   The court supposed that tbe defendant bad admitted himself to be liable on said foreign attachment, by moving for a stay of said Joseph’s execution on that account, until be was indemnified against it; and tbe court’s granting said motion and ordering said execution to be stayed, until be was indemnified by said Joseph against said foreign attachment, amounted .to a confession of judgment against himself and recognized by tbe court, by ordering said execution to be stayed till indemnified — whereby be was estopped to plead that said Joseph was not an absent absconding debtor, or in any way to avail himself of tbe payment made by bim to said Joseph under these circumstances: For tbe whole ground of the motion and of the court’s order upon it, is tbe admission of tbe defendant, that be was liable 'on said foreign attachment; for if said Joseph was not an absent and absconding debtor, at the' time the copy of tbe original writ was left with bim in service, be must, have known it at tbe time when tbe special Superior Court sat in July A. D. 1789, and that, was a good defense for a garnishee upon a scire facias, and so needed not to have moved tbe court for a suspension of tbe execution.

This judgment was reversed in the Supreme Court of Errors, in June A. D. 1794 —• for the following reasons.

Thebe are two questions which arise on these pleadings — 1st. Whether Winthrop, the garnishee, had a right to plead in bar of the suit against him, that Joseph Woodbridge, the defendant in the original action, was not an absent or absconding debtor, as he has done, and if so, 2d. Whether this is a good defense.

As to the first point, it may be laid down as a general rule, that what may be pleaded to the original action cannot regularly be pleaded to the scire facias. And it may also be admitted, that the defendant in the original action might himself have taken advantage of the misdescription in question, by way of abatement, and if he should waive this advantage and plead to the merits, he would afterwards be estopped to say he was not an absent or absconding debtor. But it cannot be admitted that the garnishee, by force of the statute, entitled an act for the recovery of debts out of the estate or effects of absent or absconding debtors, his principal not being in fact an absent or absconding debtor, might, as attorney created by the said statute have taken advantage, of the same mis-description, for his right of appearing and defending in the suit rests wholly on this ground, that he is in truth the factor, agent or trustee of the defendant, being an absent or absconding debtor, and if the defendant be not in fact an absent or absconding debtor, no power is given to the garnishee by the statute as attorney in the case; and if he should appear and plead in abatement of the suit, that the defendant was not an absent or absconding debtor, he would assume a fact, which if true, would destroy his own existence as an attorney, and evince that he had no business to intermeddle in the case.

But further, if it should be admitted, that he had right to appear and to plead to this fact in abatement and he should neglect to do it, and plead to the merits, still as this defense respects his principal merely, his principal only would be bound by it, and in tbat case be alone would be estopped to say be was not an absent absconding debtor, for tbe defense of tbe attorney would be contemplated in tbe same light as if it bad been made by tbe principal'bimself actually present in court, and could no more prejudice bis future .defense as garnisbee; but clearly if sucb defense bad been made by tbe principal bimself present in court, it would be unreasonable tbat tbe garnisbee, should by sucb defense over which be bad no control, be estopped to plead tbe fact to tbe scire facias, if it would make him; a good defense.

He ought not indeed to be allowed to plead any matter which goes to show tbat tbe plaintiff in the original action, bad no just demand against tbe defendant, or tbat tbe judgment ought in any manner to' be altered or varied. Yet if tbe fact, tbat tbe original debtor was not an absent or absconding debtor, would afford a good defense against tbe scire facias by tbe statute, the garnisbee ought to be allowed to plead it, upon either principle of tbe foregoing reasoning; as bis defense rests upon tbe provisions of tbe statute^ and is totally distinct from tbe defense in tbe original action, neither tbe subject nor tbe parties being tbe same.

As to tbe second point, Whether tbe plea tbat tbe defendant in tbe original 'action was not an absent or absconding debtor be a good defense against a scire facias, as it is pleaded, there can be little doubt, for it stands confessed upon tbe pleadings to be a fact, though tbe plaintiff in bis reply endeavors to avoid it, by saying tbat tbe fact could not now be called in question. But if tbe foregoing reasoning be conclusive, tbe fact is well pleaded, and consequently it appears tbat tbe defendant in tbe original action was not an absent or absconding debtor, this being so, tbe effects of tbe original defendant, in bis, tbe garnishee’s bands were not liable and subject to execution, granted upon tbe judgment in said action, for by tbe express words of tbe statute, they are liable and bolden, subject to sucb execution only, in case tbe defendant in tbe original action wás an absent or absconding debtor.  