BRITT V. BRADSHAW. VOL. 18 a settlement and confirmation of accounts in the probate court, and propounded a special interrogatory whether he did not owe the sum, "and if so, was the same, or how much thereof, unpaid," the garnishee answered that long before the service of the writ, he had settled up and paid over all moneys, credits and effects due by him to the judg-meot debtor:. Held, I. That the answer, b-2ing responsive to the interrogatory, was evidence to establish payment, until rebutted: 2. That as the issue was not, whether the garnishee had owed the sum found due upon the settlement, but Whether it had been paid, the record of the probate court showing the settlement and confii mation of the guardian's account, was not evidence to prove the issue. Appeal from the Circuit Court of Sevier County. H ON. ABNER A. STITH, Circuit Judge. S. H. Hempstead, for the appellant. SCOTT, J. The appellant having a judgment at law against John H. Bradshaw, sued out a garnishment against the appellee. It was regularly served, and at the return term the appellant filed general allegations of indebtedness against the garnishee, and also a special allegation: "that at the time of the service of the writ, the garnishee was indebted to the said John H., in the sum of one hundred and thirty dollars, as a balance due by him to the said John H., as his late guardian, and on a settlement between them in the court of probate for Sevier county confirmed therein on the 31st day of October, A. D. 1855, as will more fully and at large appear by the records thereof now remaining in said court, a duly authenticated copy whereof is now *here in court to be pro- F531 duced," etc.—and thereupon propounds two general interrogatories, and a spe-5301 *BRITT cial one as to whether he did not owe V. the beforementioned one hundred and BRADSHAW. thirty dollars—"and if so, was the same, or how much thereof, unpaid at the In a judicial garnishment the plaintiff filed, time of the service of the writ," etc. among others, a special allegation, that the garnishee was indebted to the judgment debtor in a To these the garnishee interposes a certain amount due to him as his late guardian, in general denial, and concludes in the
JAN. TERM, 1857. BRITT V. BRADSHAW. following terms, to-wit : "that long be- the issue as to the indebtedness, which fore the service of said writ, he had it went to establish, was closed by a fully settled up and paid over all new one which had admitted it upon moneys, credits and effects due by him the record, and sought to avoid it by to said John H. as his late guardian, the allegation of payment of that par-and having fully answered," etc. The ticular indebtedness. And thus the plaintiff took issue to the answer, admission of indebtedness, which that which was submitted to a jury, who re- evidence went to establish, was super-turned their verdict for the garnishee, seded by a new adnaission of the same and the judgment of the court was ac- party to the same effect upon this rec-cordingly ; from which the plaintiff ord. And it had no tendency to prove appealed to this court. a general indebtedness separate from It appears by a . bill of exceptions, the special one alleged, as the case is that when the issues were before the presented by the pleadings. Upon jury, the plaintiff offered in evidence a the allegations, interrogatories and the transcript from the records of the pro- answers thereto, there was a prima bate court, showing such a settlement facie case made for the garnishee between the late guardian and ward, (Means v. (;ampliell, 2 Ark. R. 511), not with the balance of $130 in favor of the only that he was not indebted to the guardian, as was specially alleged. The defendant, but that he had paid him settlement had been filed in the pro- the particular debt due to him as the bate court at a term previous to that in late guardian of the garnishee, which which it was confirmed, after the usual was specially alleged, and about which notice preceding such confirmation, of he was specially interrogated. The which the ward, who was alleged to be plaintiff was not content to stop with thus indebted in this balance, must be alleging this particular debt to be ow-presumed to be cognizant. ing from the garnishee to the defend-Such a record was admissible in evi- ant, and interrogating the garnishee as dence, upon any issue to which it to whether or not he did owe as alleged; would be relevant, against the ward, but went beyond this and interrogated upon the principle that it was a solemn him as to whether or not he had paid admission of his of the indebtedness this particular debt. And when the wnich it claimed against him, and of garnishee answered as,he did, that he which he was notified, and called on to had paid it, his answer being respon-dispute, if not well founded ; other- sive to the interrogatory as to payment, wise, the settlernent as filed would be was evidence to establish the payment confirmed by the court as correct. until rebutted. The answer by the And it was available to a third party garnishee, that he had paid this debt, as well as between the late guardian was a solemn admission that he had and his ward. "As where two had originally owed it, as the plaintiff had been sued as partners, and had suffered alleged, just as a plea of payment ad-judgment by default, the record was mits the debt, which it undertakes to held competent evidence of au admis- avoid by setting up the payment. But sion of the partnership in a subsequent in this case, as the auswer as to the pay-action brought by a third party against ment was responsive to the interroga-them as partners. (1 Greenl. Ev., sec. tory as to payment, it not only as a 527, a, citing Cragin v. (arleton, 8 Shep- pleading avoided the admitted indebt-ley R. 492.) edness by setting up the payment, but 5321 *But upon the record before also as evidence proved the payment us, nefore that evidence was offered, thus set up. The plaintiff having
VoL. 18 thus, by his interrogatory as to payment, made the defendant's answer evidence as to that matter, must abide by it unless rebutted by other sufficient evidence. The evidence which he offered, and which the court rejected, had no tendency to rebut the payment of the debt which had been thus proven by this responsive evidence ; but went only to show 5331 *that it had once existed—a fact which, as we have seen, was fully admitted upon this record by the setting up of its payment. If it had been read, it could have established nothing more than what was already fully admitted, to-wit, the indebtedness of $130 to the garnishee's late guardian, and had no tendency to rebut the payment thus established until overturned by contrary evidence. Although, then, the evidence offered would have been admissible upon an issue as to whether there was such an indebtedness as was alleged, its exclusion, when no other evidence was offered in connection with it, upon an issue that had admitted that, and was as to whether the admitted indebtedness had been paid or not, which was beyond it, could in no way injure the party. The court below, no doubt regarding the matter in this light, committed no error in refusing to permit this irrelevant evidence to be read, which would have but incumbered the record. The judgment will be affirmed. Cited:-15-591
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