
    Childress vs. Dickins & Taylor.
    A debt, which is not due, cannot be attached, by the laws of Tennessee:
    A was garnisheed as the debtor of B. Ho stated, “that he did not owe B any thing that was due at the time the garnishment was execnK ed on him, but that he owed B $32, which was to become due the 1st of January thereafter; that before the 1st of January, he settled with B, and paid him the debt, for the reason that he did not conceive himself bound by the garnishment,” &c. Held, that no judgment could be rendered against A.
    A judgment was recovered by the defendants in error, against Joseph Massey, before a justice of the peace of Madison county; and the plaintiff in error, Childress, was summoned as a garnishee before the justice of the peace, in December, 1833, to say what he was indebted to the said Joseph Massey, &c. The plaintiff in error appeared on the day he was cited, but no proceedings were bad, nor was he examined as garnishee. On that day »■ garnishment tor the said Childress again issued, to appear before the said justice, on the 1st day of January, 1834. Childress removed from the country, and did not appear on tjie jas(. cjtation, and judgment was entered against him, in favor of the defendants in error. Childress obtained a certiorari, and carried the case to the circuit court. A motion to dismiss the certiorari was made, by counsel for .defendants in error, and the motion discharged.
    At the August term, 1834, of the circuit court, plaintiff in error appeared and answered on oath as follows, “That he did not owe Massey any thing that was due, .at the time the garnishment was served upon him; that he ■owed Massey thirty-two dollars, which was to become due on the 1st day of January thereafter; that before the 1st day of. January, the time at which the judgment was rendered on the garnishment by the justice against him, he settled with Massey and paid him off all he owed him, for the reason that he did not conceive himself bound by the garnishment; that Massey was a poor man, and he paid him to enable him to procure the necessaries of life. The court advised until January term, 1835, at which term judgment was entered up against Childress, in favor of defendants in error, for the sum of thirty-two dollars, the amount stated in the answer, with interest from the 19tb of September, 1833.
    To reverse this judgment, the plaintiff has prosecuted a writ of error to this court.
    «#. B. Bradford, for plaintiff in error.
    1st. It appears, by the statement of the justice and the constable, as also from the certiorari, that the proceedings against Childress was by Dickins and Taylor, without setting out their Christian names, which is error. 1 Yerg. 443. Cain and others vs. Kersey and M’Mahon,
    2nd. It appears, that at the time of the issuance oi both garnishments against plaintiff in error, there was no debt due from him to Massey, and none due at the time judgment was rendered against him by the justice below; therefore no judgment could be entered against him. (See Laws of Tennessee, p. 12, sc. 22: Acts of 1811, ch. 89, sc. 3, p. 95: Act of 1815, ch. 20, sc.- 1 & 3: Laws of Ten. 203, 205.) It was the opinion of the supreme court, in Hall vs. M’Minn, 2 Ten. Rep. 328, that the legislature only intended to call upon third persons in this manner, when the time for payment had elapsed. This is certainly so by the act of 1815, ch. 20, se. 1, where garnishments are issued on judgments, obtained before a justice of the peace.
    
      Jl. L. Martin, for defendant in error.
    Insisted that a garnishment may issue before a debt is due, from the person garnisheed, but that no execution could issue against him until after the debt was due; and that this was the true construction and meaning of the different acts of assembly, authorizing tittachments to issue. (The acts were here cited and commented on by the counsel.)
    In England, money due upon a bond or contract may be attached before the day of payment, but there can be no execution until a payment is incurred. 1 Com. Dig. Attach. B.: 3 Leo: Rep. 235: 1 Roll. Ab. 105: Lord Raymond Rep. 636.
   Peck, J.

delivered the opinion of the court.

Childress was summoned as a garnishee before a justice of the peace, but failing to appear, judgment was taken against him. By petition he took the case before the circuit court, where a motion to dismiss the certiorari was overruled, and he was permitted to answer in that court to (he garnishment.

He stated, that at the time he was summoned he owed nothing to Massey, (against whom the process that justified the summons had issued,) that thirty-two dollars was to become due to him on the 1st day of January, and that between the day of the summons and the day of talcing the examination he had paid it. On this disclosure the circuit court gave judgment against him, from which judgment this writ of error is prosecuted.

The law governing garnishments is found in the act of 1794, ch. 1, sc. 22; by the provisions of this act, the person is summonded to answer what he is indebted at the lime of the summons.. There is no equitable construction by which the court can feel authorized to go beyond the words of the act, to reach a case of indebtedness; the act has been taken with strictness. We have held that the disclosure of the garnishee can not be contradicted to reach him, but that it is on what he declares, the court is authorized to proceed.

There being nothing due at the time of the summons, the court being governed alone by the act, had no authority to give the judgment.

Judgment reversed.  