Born et al. vs. Williams & Brother. necessaries, lead to frequent changes of employés and contractors, cause unfinished work to be abandoned or suspended for lack of prompt payments, etc., etc. To these general considerations, others, local and special, arising out of our garnishment system, and out of our restrictive policy as to the creation of municipal debts and liabilities, might be added. In Georgia, it is not required that a person garnished should be indebted when the garnishment is served; if he becomes indebted before making his answer, the seizure is effectual. Code, §3536a. He may be garnished again and again, pending suit or after judgment, so long as the moving creditor may choose to repeat the summons on the terms prescribed. Code, §§3522, 3536, 3302. He may answer or not at his pleasure; there is no statute to compel him; but if he fails to answer, he becomes liable, whether he is indebted or not, to discharge the judgment which the garnishing creditor has obtained or may obtain against his own debtor. Code, $3304, 3536. To obtain a summons of garnishment, no creditor has to swear or suggest that the person to whom it is addressed is the debtor of his debtor, or that he is likely to become such. He may legally "shell the woods" without swearing or even telling a lie for the privilege. Nor is he required to give any bond or make any promise to restrain him from hitting or hurting any disinterested person who may happen to be in the woods. The bond he gives is for the protection of his own debtor, not in any respect for the protection of the garnishee. Code, §§3533, 3266. The law devolves on the garnishee the burden of disclosing his true relation to the case, and for omitting to answer in due time, it visits him, as already said, with the invariable consequence of judgment, limited in amount only by the judgment which it is intended to satisfy; in other Born et al. vs. Williams & Brother. words, unless the garnishee answers to the contrary, the law conclusively presumes not only that he is a debtor of the defendant in the principal case, but that he owes enough to pay that person's debt, how large soever it may be. By simply failing to answer garnishments, whether from negligence, forgetfulness or obstinacy, the mayor or other chief officer of a municipality might involve it without limit in judgments for money which it never owed, and consistently with the constitution and laws, could not owe rightfully. Again, should the answer be made and duly filed, if by design or mistake it admitted as due a sum not due, the admission would be binding, and thus a municipal debt of any amount might arise out of a mere admission of a single officer. To make these possible results of the garnishment system, if applied to towns and cities, harmonize with the constitution of 1877, which guards with such jealous vigilance municipal as well as State and county credit, would seem difficult. But we need not and do not decide the broad question, in order to dispose of the present case. Born was a person in the employment of the city of Atlanta, (whether as contractor or laborer does not appear), to work upon a school-building belonging to the city. The debt which it owed him was for such work, part of it accruing before and part after the garnishment was served. Consequently the case is controlled, in principle, by Hightower vs. Slaton, 54 Ga. 108, in which it was held that the salary of a teacher in the employment of the board of education of the city of Griffin, was not subject to garnishment at the instance of one of his creditors, the court saying: "The children of the State cannot be educated without competent teachers, and competent teachers cannot be obtained if they are to be deprived of their wages for the support of themselves Born et al. vs. Williams & Brother. and families by process of garnishment. Besides, if a judgment was rendered against the garnishee in this case, upon what property could it be enforced? The garnishee is the secretary and treasurer of the board of education, and would not be liable in his individual capacity. The public funds in his hands could not be seized, as it would be as much against public policy to do so as to garnishee a muncipal corporation for the salaries of its officers, which this court has held cannot be done." In order for public schools to be maintained and rendered efficient, it is no less necessary that schoolhouses should be erected and repaired, than that teachers should be employed, and their continuous service secured, to give instruction within such houses. Any interference with building or repairing these edifices is as much contrary to public policy as like interference with the vocation of teacher. The whole public school system should be, and we think is, exempt from molestation by the creditors of those whom the public may employ to provide for or conduct the schools. 2. The point was made in argument that, by dissolving the garnishment, Born waived the right of making the question as to the fund being exempt, the city itself having raised no such question. Whilst, no doubt, the exemption exists chiefly for the benefit of the public, it does not follow that the individual concerned may not take and claim the fruits of it, under the act of October, 1885, (acts 1884-5, p. 96.) This act was construed in Linder vs. Benson, 78 Ga. 116, and the ruling was to the effect indicated. It could not, under the terms of the act, have been otherwise. Judgment reversed. ▼ 81-51 Patterson vs. Gibson. PATTERSON vs. GIBSON.* 1. A bond executed under the duress of the principal is void as to the surety also, if the surety acted without knowledge of the duress; and knowledge of the fact of imprisonment does not necessarily involve knowledge of its want of legality. 2. It was error to strike a plea setting up a material part of this defence, to wit, want of knowledge. July 12, 1888. Principal and surety. Bonds. Duress. Pleadings. Before Judge SIMMONS. Bibb superior court. April term, 1887. On April 3, 1877, Mrs. Besore sued Besore and Patterson on a bond executed April 28, 1873, in which Besore was principal and Patterson security, conditional that, whereas Mrs. Besore had filed her libel for divorce and bill quia timet against Besore, under which he had been arrested, if he should pay such amount as might from time to time be ordered by the court as alimony and counsel fees to Mrs. Besore, then this lond to be void, etc. The plaintiff alleged that an order was afterwards passed for alimony and counsel fees, which remained of force over two years, when a total divorce was granted her; and that Besore had paid only the counsel fees and alimony for six months, leaving a balance still due her. Besore was not served. Patterson was served on April 6, 1877, and pleaded, among other things, that the bond was given by the principal under duress, he having been arrested by the sheriff and confined for sometime in jail, the sheriff demanding that he should give a bond before he should be released, and he gave * In this case and the one next following it. SIMMONS, J., being disqualified, Judge BOYNTON, of the Flint circuit, was designated to preside in his stead. The judgments were rendered at the March term, 1888, but the opinions of the court did not reach the reporter in time to be printed with the cases of that term. Patterson vs. Gibson. the bond for the purpose of being relieved of imprisonment; but that the sheriff had no authority to arrest him, or confine him in jail, or demand of him a bond before releasing him, there being no order of court authorizing the sheriff to do so, and no allegations in the bill that would authorize the court to order the sheriff to arrest the principal, confine him in jail or demand of him any bond of the character of that sued on. On May 9, 1887, the case came on for a hearing, and the defendant further pleaded, among other things, that the bond was given by Besore under duress, and defendant signed it as security for him, with no knowledge of the circumstances which required him to give a bond or that he was under duress at the time, etc. Ou demurrer, the latter plea was stricken as insufficient in law to constitute a defence; and this was assigned as error. Under the evidence introduced and the court's charge, the jury found in favor of the plaintiff. A motion was made by defendant for a new trial on the ground, among others, that the charge contained the following instruction: "Whether Besore was under arrest or not, if Patterson voluntarily signed that bond, and he was under no arrest, and there was no illegal imprisonment as to him-no threats made as to him,he could not take advantage of it, and he must pay the bond if he signed it. . . Look to see if Patterson signed it. If he did, whether Besore was under arrest or not, he not being here, Patterson cannot take advantage of it." The motion was overruled; and this also was assigned as error. R. F. LYON, BACON & RUTHERFORD and R. W. PATTERSON, for plaintiff in error. J. H. HALL and HARDEMAN & DAVIS, contra. |