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Phillips vs. Thurber & Company.

that the same arose in consequence of the garnishee's having received from the makers of certain negotiable paper, money to pay off said paper, which paper, payable to the defendant and bis assigns, had been assigned, before maturity, to the claimant. It was contended that the garnishee was simply the depositary of a fund to be paid on this paper; and that, as the claimant held the paper by assignment, the money was due to him and not to the defendant. To support this theory of the case, the claimant, after introducing the paper, offered in evidence certain declarations of the garnishee, made after the service of the garnishment, to the effect that the money was placed in his hands to pay off said paper; that he had no other funds belonging to the defendant; and that, having been garnished, he would hold up the money and let the parties contend for it in court. The court, on objection to this evidence by the plaintiffs, ruled it out. These declarations of the garnishee were not admissible evidence. The Code declares, in section 3542, that the garnishee, upon answering, shall be discharged from all further liability, and the plaintiff's remedy shall be upon the claimant's bond. The garnishee is allowed to answer, but nothing more. He cannot, by his mere verbal statements out of court, affect the rights of either party. There is nothing to prevent him from being examined as a witness; and if the claimant had wanted from him any explanation of the facts and circumstances on which the admissions of the answer were based, that course was open to him. But upon an issue between other parties, and to which the garnishee is no party, his bare sayings are not to be taken. See a somewhat similar question in 52 Georgia Reports, 562.

3. There was a motion by claimant in arrest of judgment and to set the judgment aside. In support of these, it is urged that the garnishee's answer was filed after the claimant's bond was given to dissolve the garnishment. But what of that? The statute gives the garnishee the right to answer, but does not prescribe that the answer shall not be filed after the claimant has given bond. But a still more conclusive re

McFarlin vs. Stinson et al.

ply is, that the claimant took no exceptions to the answer as coming too late; but traversed it, thus tendering an issue upon it, which was accepted by the plaintiffs and tried by the jury. Whether the answer was early or late, the claimant litigated its truth; and not until after the issue was found against him, did he suggest that the answer was out of time.

It is urged, also, that the claimant's bond did not dissolve the garnishment, and that no judgment can be rendered on it for that reason.

The condition of the bond is not in the words of the statute, but we think there is a substantial conformity. We find no error in any part of the case.

Judgment affirmed.

JANE MCFARLIN, plaintiff in error, vs. R. M. STINSON et al.,

administrators de bonis non, defendants in error. An executor cannot bind the estate of his testator by the execution of a note

signed by him “as executor.” The assets of such estate are only bound for the debts contracted by the testator during life.

Administrators and executors. Contracts. Before Judge BUCHANAN. Troup Superior Court. November Term, 1875.

Reported in the decision.

SPEER & SPEER, for plaintiff in error.

B. H. BIGHAM; T. H. WHITAKER, for defendants.

WARNER, Chief Justice.

This was an action brought by the plaintiff against R. S. McFarlin, administrator of John W. Stinson, and W. A. Shackelford, R. M. Stinson, and Neal Wilkinson, administrators de bonis non of John Stinson, deceased, and A. L. Stinson, (the plaintiff alleging that N. L. Stinson was dead and no representation on her estate,) on the following described promissory note:

McFarlin vs. Stinson et al.

"By the first day of January next, we or either of us promise to pay R. S. McFarlin or bearer, $720 00, for value received, and if not punctually paid, to bear interest at rate of twenty per cent. per annum after maturity, said interest to be paid annually, or considered and counted as principal. “ Witness our hands and seals, this 4th day of January, 1874. [Signed]

“ JOHN STINSON,
“ N. L. STINSON,
“ A. L. STINSON,

· JOHN W. STINSON,
“Executor of estate of John Stinson, deceased.”

66

On the trial of the case, the plaintiff offered and read the note in evidence, and also a copy of the last will and testament of John Stinson, deceased, in which he directed that his wife should keep the Phillips place, where she then lived, as long as she did live, and for her to have everything there that was necessary for her and the children to be comfortable and pleasant. The testator appointed his son, John W. Stinson, his executor, with power to sell any part of the estate when he might think it best for his wife and children. McFarlin, sworn as a witness for plaintiff, stated that when the money was loaned for which the note was given, John W. Stinson stated that it was for the use of the estate; that they had or were putting up a water gin on the place, and that it had cost, or was costing, them a good deal of money. When the testimony for the plaintiff was closed, the defendants' counsel made a motion for a nonsuit as to the administrators de bonis non on the estate of John Stinson, deceased. The court sustained the motion and the plaintiff excepted.

The only question in the case, therefore, is, whether John W. Stinson, as the executor of John Stinson, deceased, could bind the estate of his testator by the execution of the note sued on, so as to make the assets thereof liable for its payment? It is undoubtedly true, that the assets of the estate of a deceased testator are liable for the payment of the debts and obligations, contracted by him in his lifetime, but it would be a novel and dangerous doctrine to hold that the assets of the deceased testator could be made liable for the contracts made by his executor after his death ; so dangerous to the es

Duncan vs. Anderson.

tates of deceased testators, that the law does not allow it to be done. An administrator or executor can only bind himself by his contracts; he cannot bind the assets of the deceased. Therefore, if he make, indorse, or accept, negotiable paper, he will be held personally liable even if he adds to his own name, the name of his office, signing a note, for example, "A as executor of B,” for this will be deemed only a part of his description, or will be rejected as surplusage: 1st Parsons on Notes and Bills, 161; Lovelace vs. Smith et al., 39 Georgia Reports, 130. The executor under the will of the testator in this case, had the power to sell any part of his estate for the purposes therein expressed, but did not have the power or legal authority, to bind the assets of his testator's estate by the execution of the note as set forth in the record. There was no error in granting the non-suit.

Let the judgment of the court below be affirmed.

WYLIE H. DUNCAN, plaintiff in error, vs. John L. ANDER

SON, defendant in error. 1. Once granting a new trial by the presiding judge, for want of sufficient

evidence to support the verdict, can hardly be said to be abuse of discretion, since the parties have no longer the resource of appealing to a special

jury; and affirmance in the supreme court is almost a matter of course. 2. The landlord is not responsible in damages for a tort committed by his cropper in hiring or working servants previously employed by another

The facts of this case do not make either an original agency or an agency by ratification. The cropper alone had the power of employment and of discharge.

New trial. Landlord and tenant. Tort. Before Judge POTTLE. Wilkes Superior Court. November Term, 1874.

master.

Duncan brought complaint against Anderson for $300 00 damages, alleged to have been sustained by him on account of the enticing away by the defendant of one Enoch Huff, a farm hand employed by the plaintiff for the year 1874, by reason of which his services were lost. The record discloses no plea.

Duncan vs. Anderson.

use.

vances.

The evidence made the following case:

In January, 1874, the plaintiff entered into a contract with Huff by which the latter was to work for him as a farm laborer during that year. He was to be paid $60 00 in money for his services, and to have every Saturday for his own

Huff had been in the employ of the plaintiff for the four preceding years, and had become indebted to him for advances made. He worked until February 12th, and then left the service of plaintiff and went upon a farm owned by defendant. He was then indebted to plaintiff $88 75 for ad

The defendant was farming with one Mat. Heard, on shares. He was to furnish the land and stock, and feed for the latter. Heard was to furnish the hands and to feed them. The crop was to be equally divided. The defendant was to control the half of the crop belonging to Heard until he was paid what was due him by any of the hands. Defendant was a merchant, and sold to the hands what goods they wished, charging to each the purchases made by him. He never employed Huff to work for him; Heard employed Huff in compliance with his contract to furnish hands. Defendant did not know that Huff was employed on his place until Heard reported him as wanting supplies from the store.

There was evidence to show that defendant knew of the contemplated employment of Huff on his farm before he actually left plaintiff; also as to the damage sustained by the latter. It is omitted as immaterial here.

The jury found for the plaintiff $200 00. The defendant moved for a new trial, among other grounds, because the verdict was contrary to the law and the evidence. Thereupon the court passed the following order :

“After considering this motion, it is ordered that the verdict be set aside and a new trial granted, on the ground that the brief does not show any evidence that connects the defendant with the hiring of Enoch Huff; nor is there any proof that the wrong done by Mat. Heard was ratified in any manner by defendant. It is clear that he, Mat. Heard, was a cropper, and not the servant of the defendant, and in

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