
    Thomas Welch et al. v. M. P. Renfro.
    Decided March 29, 1906.
    1. —Garnishment—Tort.
    * In a suit for the value of two horses alleged to have been driven to death by the defendant the plaintiff sued out a writ of garnishment and had it served upon a deputy sheriff with whom defendant had deposited money in lieu of an appearance bond in a criminal case. Held, the suit was for unliquidated damages, and the writ should have been quashed.
    2. —Same—Assignment—Hotioe.
    Before the service of the writ of garnishment the money in the hands of the sheriff had been assigned to third parties by the defendant, and the garnishee had notice of the fact. The money, therefore, was not subject to garnishment for the debt of the defendant.
    Appeal from the County Court of Nacogdoches County. Tried below before Hon. Robert Berger.
    
      Blount & Garrison and S. M. Adams, for appellant.
    That the action was founded upon a tort, and therefore would not support an attachment or garnishment, cited: El Paso Nat. Bank v. Fuchs, 89 Texas, 197; Hochstadler v. Sam, 73 Texas, 315; Medley v. American Radiator Co., 66 S. W. Rep., 86; 4 Am. & Eng. Ency. of Law, 444-446; Drake on Attach., secs. 10, 451, 452, 453 and authorities cited; Rev. Stats., arts. 186, 217; Neely v. Grayson County Nat. Bank, 61 S. W. Rep., 559.
    The money in the hands of the sheriff was not subject to garnishment because the same was taken from the person of defendant while he was under arrest. Richardson v. Anderson, 18 S. W. Rep., 195; Hill v. Hatch, 41 S. W. Rep., 349; Hubbard v. Gardener, 69 Am. State Rep., 580.
    
      Ingraham, Middlebrook & Hodges and King & King, for appellees.
    A scintilla of evidence, or a mere surmise that appellant’s debt to appellee was unliquidated, sounding in tort, assigned or in custodia legis would not justify a trial court in submitting a case to the jury. Galveston, H. & S. A. Ry. Co. v. Faber, 77 Texas, 153; International & G. N. Ry. Co. v. Hall, 12 Texas Civ. App., 15.
    A bailor can either sue for damages for the conversion or destruction of animals hired, or sue -upon his implied contract for the value thereof. Willis v. Hudson, 63 Texas, 678; Gause v. Cone, 73 Texas, 240; Kreisle v. Campbell, 32 S. W. Rep., 581.
   REESE, Associate Justice.

M. P. Renfro sued Thomas Welch in a Justice Court to recover the value of two horses which had been hired by Renfro to Welch and which Welch had driven to death. Ancillary to this suit Renfro sued out a writ of garnishment against Gaines Purvis, deputy sheriff, who was alleged to have in his possession $150, the property of Welch, or to be indebted to him in that amount. Welch had been arrested by Purvis at night upon a charge of malicious mischief in driving the horses to death, and to save himself from going to jail had deposited with Purvis $150 in cash as security for his appearance the next morning, for which Purvis, as deputy sheriff, had given him a receipt in the name of Spradley, the sheriff. Early the next morning Welch employed the law firm of Garrison & Blount to defend him in the criminal case, agreeing to pay them a fee of $75 and also procured them to make his appearance bond. In payment of the fee and to indemnify them against liability on the appearance bond Welch gave Garrison & Blount an order on Spradley for the $150. The appearance bond was presented to the sheriff and approved by him and Welch released. Upon presentation of the order for the money Spradley said it was all right and that he would pay it over as soon as Purvis came in. Before the money was turned over, however, writ of garnishment was served upon Purvis,whereupon the sheriff declined to pay over the money to Garrison & Blount, who replevied the money under the statute. All of the parties answered the garnishment suit, setting up the facts which are substantially as above stated, and moved to dismiss the garnishment writ upon the ground that the suit against Welch was for unliquidated damages for a tort, and also that the money had been transferred and assigned to Garrison & Blount, and Spradley had been notified of such transfer before the service of the writ of garnishment.

The motion was refused, and judgment was rendered against Garrison & Blount and the sureties on the replevy bond for the amount claimed in the garnishment. Upon appeal, to the County Court the same result was reached, and from this judgment the defendants in the garnishment proceedings appeal to this court.

Clearly Renfro’s suit against Welch was an action for unliquidated damages for the tort committed by Welch in driving his horses to death. The plaintiff could not make it a debt, within the meaning of the statute authorizing garnishment proceedings, by simply calling it a debt. The writ of garnishment was not authorized and should have'been quashed. (Hockstadler v. Sam, 73 Texas, 315; El Paso National Bank v. Fuchs, 89 Texas, 197.)

The money had been placed in the hands of Purvis, deputy sheriff, as the agent of Spradley, the sheriff, as shown by the receipt, and the assignment to Garrison & Blount and notice thereof to Spradley before the service of the writ of garnishment on Purvis was a bar to the garnishment proceedings against Purvis. At the time of the service of the writ the money was the property of Garrison & Blount, who were, entitled to $75 of it absolutely, and to the balance as an indemnity against loss on the appearance bond.

For the errors indicated the judgment of the County Court is reversed and judgment here rendered for appellants.

Reversed and rendered.  