
    E. O. Ross, Tutor, v. W. M. Savoy et al.
    A party on a negotiable draft originally given to the defendant, cannot be held liable on a garnishment, when it appears the defendant no longer holds the draff.
    APPEAL from the District Court of Carroll, Snyder, J. In this case J. B. Wiggins was garnisheed on a fieri facias. On the trial of the garnishment there was judgment in favor of garnishee, and the plaintiff appealed.
    
      Wm. Bryan, for the plaintiff,
    contended: Wiggins had twice answered petitions of garnishment, prior to answering under the fi. fa. of 2d August, but as no fi. fa. was in the hands of the sheriff when the petition for garnishment was filed in those first attempts, he, plaintiff, caused the third writ, the present, to issue, although, under the first, he, Wiggins, answered clearly and unequivocally, that he did owe Savoy $708.
    
    His second answers were a little equivocal, but stated the amount of the debt,, and that Savoy had told him that he had transferred it. And his answer under the third attempt at garnishment, the present, was still more equivocal in answering the 1st interrogatory, which says: “that he is not indebted to Savoy in any manner, as he believesand then gives the reason that Savoy told him it was transferred.
    Plaintiff contends that the answers to the two last attempts under the garnishment were evasive. He acknowledged he had not paid the draft; but he does not state to whom the draft was transferred.
    The articles 2612 and 2613 of L. C. contemplate a transferree as well as a transferror, and as the answer of Wiggins does not disclose the name of the transferree, there is strong presumption of fraud between the transferror and garnishee. Establish the principle, that a third person under garnishment can evade the payment he owes to his debtor by secreting the name of the transferree, soon there will be no use for the writ, as it will be entirely inoperative. It is therefore evident, that the answers under the garnishment, are evasive, and ought to be construed against him. Whiting v. Ivey, 3d Ann. 650.
    The transferree should have made himself known, if not to plaintiff, to Wiggins. But as the transferree has not made himself known to Wiggins, he, Wiggins, would be protected by the levy under the writ; and the statement by Savoy, that he had transferred the debt, is of no more importance than if the officer had levied on any other property of his, and he had told the possessor that it had been previously disposed of, without saying to whom.
    
      Short and Parham, for the garnishee,
    contended: “ We think, upon the answer of the garnishee, which stands uncontradicted, and without even an attempt to contradict it, ón the part of the plaintiff, the judgment is too obviously correct to be disturbed. The only grounds on which a judgment can be rendered against a garnishee, are: 1st. When he refuses to answer: he- is then presumed to be indebted to the amount alleged. 2d. Where he acknowledges the indebtedness. 3d. Where the indebtedness appears on the facts stated in the answer. 4th. Where the indebtedness is established by such evidence as will overrule the answer. In the present case, the plaintiff took a judgment by default, as in all cases where the party is cited to appear. The garnishee then files his answer. The plaintiff calls the case up for trial; reads the answer of the garnishee in evidence; which clearly show, that he is not indebted to Savoy, but only to such person as may be the holder of the draft. Suppose the holder of the draft presents himself, will he be bound by a judgment against Wiggins, upon such a state of fact?”
   The judgment of the court was pronounced by

Slidell, J.

A judgment having been obtained against the defendant, Wiggins was garnisheed under fieri facias.

By his answers, it appears that he had given Savoy a bill of exchange upon Drew Sf Co., which was protested in June, 1847; that in 1848 he called on Savoy to settle the bill, and was informed by him that the draft had been transferred, and that he owed him, Savoy, nothing. As the case stands, the garnishee cannot be compelled to pay the plaintiff. His liability is upon a negotiable instrument. Non constat: that Savoy is the holder of it. If he is not, Wiggins owes him nothing. If Wiggins is compelled to-day to pay its amount to Ross, to-morrow he might be compelled to pay the same sum to a third person, as the holder of the bill.

Judgment affirmed, with costs.  