#### Patterson vs. Harland.

An appeal lies from tho judgment of a justice of tlie peace to the Circuit Court in a case of garnishment.

On the trial, in a case of judicial garnishment, the original judgment must he produced and read in evidence before any testimony can bo introduced to establish the indebtedness of tho garnishee. Jlut if the garnishee permits the plaintiff to proceed with other testimony without requiring tho production of the judgment,, the objection is waived, and cannot bo raised on motion for new trial.

The garnishee answered, that he had in his possession corn belonging to tho judgment debtor, but held it by agreement with him as a security for labor which tho judgment debtor was to perform for him, and had not done it: Heed, That the answer was defective in not showing that the judgment debtor was under legal obligation to perform the work.

Under the provisions of O/tap. 78, Digest, where a garnishee has goods and chatties in his hands belonging to the judgment debtor, he may surrender them to the plaintiff on the return day of tlie writ, and discharge himself thereby, but if he neglects or refuses to do so, judgment may bo rendered against him for the value of the goods found in his hands, subject to the garnishment, in money.

Whore property is placed in the hands of a person as a pledge for a debt, it cannot be taken by garnishment until the debt is paid.

Appeal from Phillips Circuit Court.

Tt appears, from the transcript, in this case, that on the 1 Oth March, 1849, Lemuel Jenkins, suing for tlie use of Harvey B. Harland, recovered a judgment against Robert Jackson, for $15 39, before a justice oftbe peace of Phillips county. The action seems to have been on a note assigned to Jenkins.

On the 12tb March, 1848, Harland sued out a writ of garnishment on the judgment against John Patterson, and recovered judgment against him, in his own name, before the justice, as such garnishee for $11 77. From this judgment, Patterson appealed to thn Circuit Court of Phillips county.

In the Circuit Court an issue was made up to the answer of Patterson, a jury was sworn to try the issue, and they returned *159a verdict that they uñnd iu the possession of the garnisher, 70 bushels of corn, belonging to Robert Jackson at the time of the service of the writ of garnishment, 12th March, 1849, and And said corn to bo worth 50 cents per bushel, amounting to the sum of $35, and find accordingly.”

Then follows a judgment in favor of Harland against Patterson for the sum of $19 35, “being amount of the judgment rendered by the justice in favor of Harland against Jackson, with interest,” &c., and for costs of both comts.

Patterson moved for a new trial, and in arrest of judgment, and both motions being overruled,, he excepted, and appealed.

The bill of exceptions shows the evidence introduced on the trial, &c.: First, the interrogatories, to the garnishee, and his answer. He was asked if he had any goods, and chatties, moneys and effects of Jackson in his hands or possession, and, if any, how much, and of what value? He answered that he owed Jackson nothing. And further, that during the past season, Jackson cultivated a portion of his ground, on shares, producing he supposed about 140 bushels of corn, one half of which Jackson was to have. That before the corn was gathered, Jackson agreed that he might gather, and house the whole of it, and keep Jackson’s part as security for some labor which Jackson owed him, and which he had not paid him at the time of answering: wherefore he answered that he had nothing in his hands belonging to Jacksom

Several witnesses were then introduced by the plaintiff, whose testimony corroborates the answer, except as to Patterson’s’lien upon the corn, and is silent on that point — -they corroborate him as to gathering and housing the corn.

Patterson asked three instructions of the Court: 1st, and 2d, in substance, that plaintiff must disprove the answer of defendant, which the Court gave.

“3d: If the jury believe, from the evidence, including the answer of the garnishee, that the corn in question was given up to the garnishee as a pledge, or security, no recovery for the corn, or its value, can be had until the lien, created by the pledge, or deposit, is removed” — which the Court refused.

*160The new trial was asked on the grounds that the verdict was contrary to evidence, law, and the instructions of the Court, and that the Court erred in refusing the 3d instruction.

Motion in arrest on the ground that there was no appeal from the judgment of a justice in a case of garnishment.

Hon. John T. Jones presiding as Judge in the Court below.

E. II. English, for the appellant.

The original judgment is void for want of jurisdiction, and the garnishment suit founded on it, must fail. {Everetv. Clements & Thompson,& Eng. 478. Hef-lin v. Owens, 5 ib. 682.) Jenkins being the legal plaintiff in the original judgment, the garnishment should have been in his name, and not in that of Iiarland.

The verdict was contrary to evidence, because the answer, which was not disproved, admitted the possession of the corn, and alleged that it was held as a security or pledge. That, an answer showing an original indebtedness may also show a discharge, see Swisher vs. Fitch et al., use, &c., 1 Sm. & Marsh. 541. Thompson et al. vs. Shelby, 3 ib. 296. Frost vs. Patrick, 3 ib. 783.

The court certainly erred in refusing the 3d instruction asked by Patterson. If Patterson held the corn in pledge for labor due him by Jackson, he could not be deprived of his lien until the labor was performed or the debt settled. Story on Bailments, title Pawns or Pledges, sec. 353, et seq.

The judgment for money is erroneous; it should have been for the corn.

Pike & Cummins, contra^

The answer of a garnishee is evidence only so far as responsive to the interrogatories; and that portion of the answer sotting up a lien, not being so, should have been proven. The court therefore might well have deemed the 3d instruction abstract.

The evidence clearly warranted the verdict. And that an appeal will lie, see sec. 174, ch. 95, Dig. 6 Eng. 182.

*161Mr. Chief Justice Johnson

delivered the opinion of the Court.

The objection that an appeal will not lie from the judgment of a justice in garnishment, we think is not well taken. The statute we consider sufficiently broad to include such judgments. It is as follows, viz: “Any person aggrieved by any judgment rendered by any justice of the peace, except a judgment of non-suit, may, in person, or by his agent, make his appeal therefrom to the Circuit Court of the same county where the judgment was rendered.” (See Dig., ch. 95, p. 667, sec. 174.) The final action of a justice of the peace, setting as a court and acting in his judicial capacity in a proceeding by garnishment, is clearly a judgment within the meaning and contemplation of this act. The construction placed upon that act by this court in the case of Mitchell, use Rogers vs. Woods, (6 Eng. R. 182,) is believed of itself to be conclusive upon this point.

The first cause assigned why the court should grant a new trial was, that the verdict was contrary to law and evidence; 2d, because the verdict was in the teeth of the instructions of the court: and 3d, because the court refused to give to the jury the third instruction asked for by the garnishee. We will now proceed to determine upon these several grounds of objection as they are presented by the motion.

If the counsel for the appellant had interposed his objection in apt time, he could most unquestionably have excluded the whole evidence offered against his client, unless his objection had been obviated by the production oi the original judgment. That was the basis of the proceeding by garnishment, and, as a matter of course, was absolutely necessary to lay the foundation for the introduction of other testimony. The garnishee had a right to see it and also to have it before the jury, who were to pass upon and fix his liability, as it alone could serve as the measure of the recovery against him, and also to furnish a bar to any future action against him for the same subject matter. This, however, he did not do; but, on the contrary, waived his right in this respect, and permitted evidence without objection to be received tending *162tó show the amount in his hands belonging to the defendant in the supposed judgment. This court, in the case of Johnson vs. Ashley, (2 Eng. R. 473,) said: “It is the duty of a party who desires to have testimony offered by his adversary excluded from the jury, to move to that effect so soon as it is delivered, and if he fails to do so, but rests till other witnesses are examined, and then moves to exclude the whole, his motion will not be sustained in case any part of the testimony thus delivered shall be competent under the issue joined between the parties.” The rule will apply with equal force where a party has permitted evidence to be introduced which could not be legally received without first laying a foundation for its reception, as the law will presume that he waived his right thus to object. The evidence, therefore, tending to show what property the defendant below had in his hands belonging to the supposed judgment debtor, and also the value of the same having been properly received, we will now proceed to enquire into its sufficiency to authorize the verdict rendered by the jury.

The garnishee admitted in his answer, that he had some seventy bushels of corn in his possession belonging to the'judgment debtor, but that he had given him permission to retain it as a security for the performance of certain work and labor which he had agreed to do for him, and which he had failed and refused to perform up to the time of putting in his answer. It was proved by other witnesses, that corn, at the time referred to, was worth fifty cents per busheL It is contended that the defendant had a right to hold the corn as a pledge for the work and labor, which Jackson, the debtor in the judgment, had agreed to perform until it was fully completed. How this matter might have stood in the event that the defendant had shown that the judgment debtor was under any legal liability to perform the work, we do not feel ourselves called upon at present to decide. He has not shown, nor attempted to show, that he was indebted to him, and that he had agreed to perform work and labor to liquidate such debt, but the inference is strong, from the evasive language of his answer, that he was not so indebted, but that on the contrary, his claim *163was a mere pretext resorted to, to place the property beyond the grasp of the law. The answer, therefore, though not rebutted by other evidence, is strong in itself to fix a liability upon the defendant; at least it leaves the matter in that dubious state which would fully justify a jury in finding as they did.

But it is insisted that, even admitting that the jury had the right, under the proof, to find the corn in the hands of the defendant, yet they had no power to inquire into its value, and return a verdict for dollars. By the 3d sec. of the 78th chap. of the Digest, the plaintiff is authorized to file allegations and interrogatories upon which he may be desirous of obtaining the answer of the garnishee, touching the goods and chatties, moneys, credits and effects, of the defendant in the judgment and the value thereof in his hands and possession at the time of the service of the writ, or at any time thereafter. The 6th sec. provides that if the issue be found for the garniseee, he shall be discharged without further proceedings; but if the issue be found for the plaintiff, judgment shall be entered for the amount found due from the garnishee to the defendant in the original judgment, or so much thereof as will be sufficient to satisfy the plaintiff’s judgment with costs; and the 7ih see. further provides that if, on the return day of the garnishment, the garnishee shall surrender to the plaintiff all the goods and chatties, moneys, credits and effects which may be in his hands or possession belonging to the defendant, he shall be discharged with costs, and the court or justice shall enter up an order releasing and discharging such garnishee from all responsibility to the defendant, in relation to the goods and chatties, moneys, credits and effects so surrendered. The last section quoted, it will be perceived, gives the garnishee an election either to surrender or to retain fixe goods and effects, and in case he shall choose to make the surrender, he is thereby entitled to a release from all responsibility in relation thereto. It is very clear that he makes his election at his peril, and that in case he shall fail to avail himself of his pi'ivilege to surrender on the return day of the writ, he is liable for the value of the property found in his possession belonging to the judgment debtor, at least to the ex*164tent of the judgment in case it shall amount to so much. There is no error, therefore, in this respect.

It is also objected to the judgment that the Court refused to give in charge the third instruction asked by the defendant. This instruction is as follows, viz: “If the jury shall believe from the evidence, including the answer of the garnishee, that the corn in question was given up to the garnishee, by the judgment creditor (debtor) Jackson, as a pledge or security, no recovery for the corn or its value can be had until the lien created by the pledge or deposit is removed.” We think there can be no doubt but that the defendant was entitled to the benefit of this instruction. There was some evidence contained in the answer from which the jury might have been warranted in the inference that the corn was left with the garnishee as a pledge to secure a real subsisting debt;-and, if so, he was clearly entitled to retain it until his debt was paid. See Jones on Bailments, p. 86. The Court therefore erred in this particular, and for this error, the cause must be reserved and remanded, to be proceeded in according to law, and not inconsistent with this opinion.