| Ala. | Jun 15, 1847
— 1. Upon the first point made by the plaintiffs in error, we think the decision made by us in Camp v. Hatter, 11 Ala. R. 151, is conclusive. We then held, that in an issue between the transferee of the debt admitted to be due by the garnishee, it was incumbent on the transferee to show the transfer of the debt to him previous to service of process on the garnishee, and that it was proper for the court to require this question to be presented by the issue. The effect of this decision is, that the validity of the transfer must be alledged by the transferee. It is supposed in argument, that cases may arise in which the debt admitted by the garnishee may in point of fact have been a debt due to the transferee, instead of the defendant in attachment, or execution, and thus, in such cases, the transferee would be deprived of the benefit of his oath in denying the indebtedness to the defendant in execution. The answer to this is, that under the supposed circumstances, the garnishee would not be authorized to admit indebtedness to the debtor, and if he did so wrongfully, he could never resist the claim of the rightful creditor. When, however, the garnishee admits the existence of a debt, which once was payable to the debtor, there is no peculiar hardship in requiring him who claims through k transfer, from showing its validity. We think
2. The facts of this case do not, it is true, bring it within the precise terms of the act of 1845, as the proceeding before us is not technically a trial of the right of property, although it is so in effect, quoad the debt attached. We have endeavored to show, in our previous decisions on this act, that its object is to exclude the defendant in execution from being a witness on the ground of policy, and not upon the ground of interest. [Brumby v. Langdon, 10 Ala. R. 747; Carville v. Stout, Ib. 796.] The object of the enactment being to exclude the debtor as a witness, in a contest between him and the creditor, when the contest is with respect to the condemnation of the property seized, it is impossible to say there is any substantial difference between the seizure of debt and a personal chattel. In either case the means are provided for the assertion of the claim of a third person, and although in the one instance, the claim is called a trial of the right of property, and in the other garnishment, we think the last is equally within the mischief intended to be eradicated by the statute. • In our judgment the deposition of the witness was properly rejected.
3. The only other point to be examined, is that arising out of the charge of the court. It may be, and doubtless is true, as argued by the plaintiffs in error, that the papers and pleadings in a suit are always evidence of the facts admitted by them, but it cannot be assumed they are so to prove the precise matter in issue. Thus a plea of payment unaccompanied by one denying the cause of action, might properly be considered as evidence of the admission of the debt, but certainly could have no effect to prove the affirmative of the issue of non-assumpsit. Whatever weight the answer of the garnishee was entitled to in his own case, neither that or the other papers were evidence to prove the validity of the assignment by the debtor to those claiming to be his transferees. [Wyatt v. Lockhart, 9 Ala. R. 91.]
We are unable to see any error in the record. Judgment affirmed.