| Ark. | Nov 15, 1881
OPINION.
As the justice, upon the trial of the inter-plea, found in favor of the claimant, and that the property -was not subject to the attachment, as a matter of course he •could not order a sale of it, or condemn it for the satisfaction of the judgment rendered by him against the defend-ant.
In Hershey v. The Clarksville Institute, 15 Ark., 128, a case in all respects similar to the present, Chief Justice Watkins said : “According to what seems to be the proper-construction of the Statute concerning attachments, the claimant, other than the defendant, of personal property,, seized under the writ, and who has not been summoned as-garnishee, may present his claim to the property as an independent proceeding, and without reference to any-controversy between other parties; the determination of it not affecting the right of property as between the defendant in-the attachment and the claimant, or third persons. Mitchell v. Woods, 11 Ark., 180.
There can be no doubt that the plaintiff was entitled to-appeal to the Circuit Court from, the justices judgment on the interplea.
We held in Hamlett v. Tallman & Graves, 30 Ark., 505, that a landlord’s lien is not released or discharged by a refusal to accept a tender of the rent, and that to make-a plea of such tender available, the money must be paid., into court.
It would be manifestly unjust, we think, that the appellant should keep the cotton and not pay appellee her rent..
There was no error in the instructions given, and none in. refusing those asked by the appellant.
The judgment is affirmed.