5 Ark. 55 | Ark. | 1843
By the Court,
The record is very defective and inconsistent. The writ is against both of the parties, “ as executors.” The allegations and interrogatories are against Woodruff in his own right, and against Rutherford “ as executor of Burnett.” Woodruff answers, in response to the allegations, and Rutherford moves to quash the writ, because of the inconsistent joinder, and because an executor is not liable to answer. The parties, by joining in error, admit the correctness of the record; and this Court are at some loss upon what state of facts to adjudicate.
Although a garnishment is sui generis, yet it is a suit with plaintiffs and defendants, both of whom have a day in court. And if two de-fendanls are joined in the same garnishment, it is error, unless there be sufficient allegations in the writ, that their liability or indebtedness was joint, as partnership debtors, or joint debtors, &e. But if they are intended to be made several and distinct debtors, then there must be several and distinct writs, several and distinct allegations, answers, &c.; because, each defendant must depend upon his own merits, and must be eutitled to the benefit of the judgment against him, for his own protection. In other words, defendants must not be joined, as garnishees, unless, in consequence of their joint interests, they could be joined in a suit at law, for the recovery of the demand.
This brings us to the consideration of the main question, as presented; that is: is an executor or administrator liable to be garnisheed, in his fiduciary character ?
The Supreme Court of Delaware, under a similar statute to our own, except that the clause of garnishment was in the writ of fieri facias to such debtors as are named, have said, “the act of assembly settles the priority of payment of debts, in the administration of assets, and it will not do to allow it to be disturbed in this way. By allowing the debtors of an estate to be garnisheed, the assets might be divested from their lawful course of application. Thus, funds applicable to-judgment debts might be arrested and applied to simple contract debts. Neither an administrator, therefore, nor a debtor of the estate, can be attached or summoned, as a garnishee.” This is the invariable decision. Marvell et al., garnishees of Lyons, adm’r of Houston, 2 Harrington, 349.
The Supreme Court of the State of Maine, after reviewing the cases, Brooks vs. Cook, 8 Mass. Rep., 276; Cheely and others vs. Brewer and trustee, 7 Mass. 259, say: “The reason of the law, as laid down in case of Brooks vs. Cook and trustee, is, that it is the duty of an administrator to account, with the judge of the probate, for all the property in his possession, belonging to the estate. His bond is given to secure all concerned against losses occasioned by his unfaithfulness or negligence. If any of the conduct of the administrator, in this case, has been irregular, he stands responsible on his bond.” See, also, Johnson, ex dem., Murray et al. vs. Walsworth, 1 Johnson's Cases, 372. And in Hurd & Selden, admr's of Jesse Hurd, dec'd, 9 Wend. 465, the Supreme Court of New-York, say: “ An attachment does not lie against an administrator, for a demand against his intestate, under the act against absconding, concealed, and non-resident debtors.” The reasoning, in this case, is very clear.
The reasoning, in all these cases, applies to cases of executors and administrators, under our system of laws for settling the estates of in-testates, with great force. To subject executors or administrators to this process of garnishment, might destroy the whole operation and intention of our law of administrations. We are, therefore, of opinion, that an executor or administrator, as such, is not subject to garnishment. • Judgment affirmed.
