
    Fowler v. The Widow Spelman.
    A creditor levying liis execution on land, discharges the garnishee, although he cannot finally hold the land.
    A garnishee is not holden unless the principal was an absconding debtor.'
    Sceie Eacias, against her as agent, factor, etc. to Kichard Spelman an absent absconding debtor. The defendant plead that at the time of leaving said copy in service of the original writ; said Kichard was not an absent absconding debtor, but was openly and publicly about and in company with said officer, and might have been taken. And as to £280 of said judgment and execution, she says that the plaintiff levied on land of said Richard’s, and had it appraised off to that amount, in part satisfaction of said execution, which was indorsed upon it and returned and recorded according h> law, and that the plaintiff holds said lands.
    The plaintiff replied, that said Kichard was an absent absconding debtor, etc. without that that he was openly and publicly about and in company with said officer, and might have been taken at tbe time when said copy was left. On which tbe parties were at issue to tbe jury.
    And as to said levy of said execution upon land be says it is true be did levy, etc. yet be says that said land did not belong to said Richard but to and that said levy was by 'mistake and that he cannot bold said land thereby. To this part of tbe defense tbe defendant demurred.
   Tbe jury found that said Richard was an absent absconding debtor, etc. and as to that part of tbe reply which, is demurred to,, tbe court judge that it is insufficient, and that tbe plaintiff be barred as to so much of said debt as said land was appraised at, and that tbe defendant be examined as to tbe residue of said execution. Upon tbe principle that tbe plaintiff having taken and appraised off said land in satisfaction of so much of said execution, the defendant would consider herself no longer bolden to retain that sum in her bands. See the case of Hubbard v. Brown, adjudged at Norwich, March Term, 1791.  