
    Ann Hogshead, Extrx. &c. vs. Carruth, Ex. &c.
    
    The garnishee who has been summoned upon garnishment, and against whom a judgment nisi was had, upon which a scire facias issued, is on appearance to answer the sci. fa. in the same situation precisely in which he was at the return of the original sci. fa. and he may make any de-fence upon the scire facias, that he could have made to the original summons.
    A garnishee on the return of a scire facias, may discharge himself by disclosing on oath, or he may plead or demur, as he could have done on the original garnishee summons.
    If the original garnishee summons was defective, or ought not to have issued, the demurrer to the scire facias brings such question before the court to be decided.
    A levy upon personal property to an amount sufficient to satisfy the debt, is a discharge of the debt, and a satisfaction of the execution.
    A levy upon real estate of value sufficient to satisfy the execution, is no satisfaction or discharge, and if it be not sold, an alias fi. fa. may issue, which may be levied upon personal property.
    A clerk of the court has no power or authority, to issue a garnishee summons. The summons must be issued by the sheriff or other officer having the execution in his hands.
    A sheriff or other officer has no power to issue a garnishment until he has an execution in his hands.
    On the 8th of December, 1825, the testator, Hogshead, commenced an action of debt in the county court of Monroe county, against Jones Griffin. At December session, 1826, judgment was rendered against Griffin for $112 53. To have execution of this judgment, afi. fa,. was issued on the 16th of February, 1827, which was returned endorsed as follows: “levied on one tract of 160 acres of land, it being the south west quarter section, No. 20, township 3d, and 2d range, east of the meridian, February 10, 1827. Jas. Vaughn, D. S. Too late to advertise and sell on this. Jas. Vaughn, D. S.”
    On this judgment, an alias fi. fa. was issued on the 13th of April, 1827, and then a garnishment by the clerk, commanding the defendant’s testator to appear in the county court of Monroe, on the 3d Monday of December, 1827, to answer, &c. in the usual form. Defendant’s testator failed to appear, and a conditional judgment was entered, and a sci. fa. awarded against him, to show cause why final judgment should not be entered up against him. This sci. fa. was issued on the 26th of February, 1828, returned on the 3d Monday of March, following, when a demurrer to the sci. fa. was filed for defendant’s testator. At this stage of the cause both parties died. At December term, 1828, the cause was revived without the knowledge or consent of defendant, by the counsel who acted for his testator; and the demurrer having been argued, was overruled, and a judgment rendered against him for the amount of the former judgment. This judgment the defendant brought into the circuit court for revision, by certiorari, and at May term, 1S32, the circuit court reversed the judgment of the county court, and sustained the demurrer put in by defendant’s testator, to the sci. fa. issued against him to show cause why the conditional judgment should not be made absolute. From which judgment of the circuit court, the plaintiff prosecuted an appeal in the nature of a writ of error to this court.
    
      R. M. J.Inderson, for the plaintiff in error.
    
      R. J. Meigs, for the defendant in error.
   Geeen, J.

delivered the opinion of the court.

In this case it is first insisted by the plaintiff in error, that upon this demurrer nothing can be looked at but the scire facias;, and if that be substantially correct, the demurrer must be overruled. This scire facias is only a notice to the garnishee to appear and show cause why a final judgment should not be entered against him. He is placed upon the return of this process precisely in the same situation in which he was on the return of the original garnishment. Any thing which was a defence for him “then, is in like manner a defence now. On the return of the scire facias, the party summoned may discharge himself by disclosing on oath, (as required by the garnishee summons,) whether he has money or effects of the defendant in his hands; or he may plead or demur, as he could have done on the return of the garnishee summons. In fine, his defence must relate to the garnishee summons as though he had made it upon the return of that process; for the scire facias is but a repetition of the notice upon him to appear. If, therefore, the garnishee summons ought not to have issued, or if it be defective, this demurrer brings such question before the court to be decided.

The defendant in error insists that the alias execution could not properly issue in this case, because the first fi. fa. was levied on 160 acres of land, of which no disposition is shown to have been made. We recognize the doctrine settled by this court in the case of Young and Whitcomb vs. Reed, that a levy on personal property to an amount sufficient to satisfy the execution, is a discharge; but it does not follow that the same rule applies to a levy on real estate. In the latter case, the sheriff has'not possession of the property levied on, has no control over it, and it cannot be wasted in his hands, so as to injure the debtor. Moreover, after such levy, the sheriff may discover personal property upon which it will become his duty to levy and make the money, before he can lawfully sell the lands. Therefore, we hold that a levy on real estate is no discharge of the fi. fa. and that the alias fi. fa. in this case properly issued.

The next question is, whether the garnishee summons in this case is sufficient to require the defendants to answer. This summons was issued by the clerk of Monroe county, and directed to the sheriff of M’Minn, commanding him to summon the defendant. The fi. fa. against the original defendant, had issued to the sheriff of Monroe county. This whole proceeding is erroneous. The statutes no where authorize the clerk to issue a garnishment. In all cases where a garnishee summons is issued after judgment, it must he a written notice by the sheriff or other officer who has an execution in his hands against a party who has no goods on which to levy, addressed to the garnishee, requiring him to appear before the court to which the execution may be returnable. Acts of 1794, ch. 1: 1811, ch. 89: 1813, ch. 20.

Here no execution was in the hands of the sheriff of M’Minn county against Griffin, and the summons was not a notice addressed by himself to Carruth, but was issued to him by the clerk of Monroe county. The demurrer was properly sustained by the circuit court, whose judgment this court affirms.

Judgment affirmed.  