| Miss. | Oct 15, 1873
delivered the opinion of the court:
0. E. Roache as a creditor of Thomas H. McNeill, deceased, instituted his suit ■ in the chancery court, against Malcolm McNeill, as a non-resident of the State, by an attachment of the debt due by one 0. S. Severson to said non-resident. The bill alleges that the estate of Thomas H. McNeill is indebted to the complainant in the sum of $2,500.00, and interest. That W. G. Parks is administrator of said estate, which is insolvent, and that said Malcolm McNeill took and converted to his owii use an obligation of J. A..Mitchell and J. M. Hampton, to said decedent, for the sum of $5,000.00, and prays an attachment against the personal effects of said non-resident in this State, and for garnishment of said Sever-son, his debtor, who is a resident of this State.
Upon final hearing of the cause upon the bill, answer and proofs, the court declared that the said Malcolm McNeill was indebted to the estate of said Thomas H. McNeill deceased, in the sum of $6,409.17, and decreed that the said C. S. Severson pay the same within sixty days.
From this decree the said Malcolm McNeill appeals to this court.
The allegations of the bill charging the appellant with intermeddling with the estate of the decedent and taking and disposing of the claim of the estate against Mitchell and Hampton are promptly met and denied by the appellant in his answer, which has not been overcome by the testimony. It seems that the obligation got in some way into the hands of Gen. Chalmers, and remained in this State, and should have been taken into the possession of the'administrator of said estate, and been collected, if possible, by him, and accounted for to the creditors of the estate. The proof does not show such an intermeddling with the estate of the deceased by the appellant as would make him an executor de son tort.
To authorize this proceeding under the statute, the debtor of the complainant’s creditor must be a non-resident of this State and have either lands and tenements within the same, or some other person within the State who is indebted to
In this case, the estate of the decedent was the debtor of the complainant, and in the course of administration in this State, and there are no grounds stated in the bill for the interposition of equity.
But even if the appellant were the complainant, the decree against C. S. Severson cannot be sustained upon his answer, in which he says that he gave to the said Malcolm McNeill three notes, amounting to $20,000.00, and does not know whether the said McNeill has negotiated the said notes, or any of them, but if he has done so, then this defendant owes the amount of the note, or notes, so transferred to the holder, and not to the said McNeill.
While the notes were current as negotiable paper, it is usualy very difficult for the maker to say whether at the time of the garnishment, they were still the property, or in the possession of, the payee ; if he answers that he does not know whether they were so or not, certainly he should not be charged, because it does not appear affirmatively that he was, when garnisheed, indebted to the defendant; and unless that fact so appear, no court can rightfully render judgment against him; the most that can.be claimed is, that he may be so indebted, which is manifestly insufficient; the great fact necessary'to charge him is not shown, but only conjeelured, the whole matter is in doubt, and while in doubt, the court cannot with truth record that the garnishee is found to be indebted to the defendant, and unless that be found by the judgment of the court, there is no ground for charging the garnishee. Drake on Attachment, 41Q, § 584.
Upon the whole, we think the proceeding by attachment in this case, is not authorized by the statue.
The decree must,, therefore, be reversed, and the bill dismissed. • ,