:AA) MAsoN against McCANtpnEir.. L2 Dum,F:v D. MASON against JAMES MOCAMPEELL. Error to Pulaski Circuit Court. In proceedings under the attachment law, the answer of a garnishee is evidence of the truth of the allegations it contains. prima facie But these allegations may be rebutted or disproved by any other competent evidence. And where it it assigned for error that the court below refused to instruct the jury that the answer of the garnishee under oath should be taken as true until disproved by the plaintiff, the bill of exceptions should set out all lite or show that there was no other evidence. evidence in the case, If this is not done, the legal presumption is that the court below refused to give the instruction, because the answer was disproved or . rebutted. Absent, RINoo, Chief Justice. This was a proceeding' against Mason, as garnishee, according to the provisions of the statute of : the Territory in force at the institution of the suit. McCampbell, the plaintiff below, commenced an action of assumpsit against Steele, a non-resident debtor, by suing out a writ of attachment, and obtained judgment against him on the trial of the cause. The writ was regularly served upon the garnishee, and the plaintiff then exhibited and filed his interrogatories, calling upon Mason to answer all and sin o nlar the allegations exhibited against him. The garnishee thereupon appeared and put in his answer, setting forth the -,. ‘ p ods, chattels, credits, and effects in his hands, and insisting upon an indebtedness of the defendant to him in a greater amount than the value of the property in his possession. This allegation the plaintiff denied, and a jury was thereupon summoned to try the issue between the parties, and a verdict and judgment rendered in favor of the plaintiff. Upon the trial the counsel of Mason moved the court to instruct the jury that the answer of the garnrshee under oath should be taken as true until it was disproved by the plaintiff. The bill of exceptions discloses 'this single fact, and states that the court overruled the instructions ; which opinion was excepted to, and the case taken np by writ of error.
ARE.] MASON against MOCAMPRELL. 507 TRAPNALL & COCKE, ASHLEY & WATKINS, for plaintiff in error : The instruction moved for in this case was not a mere abstract question of law. The record shows it to have had a direct connection with the answer of Mason, the truth of which was then in issue without the forms of pleading before the jury. To give the answer of a garnishee the best construction for the opposite party, is to put it on the same footing with the answers of a defendant in Chancery, or of a party to a bill of discoverey. The plaintiff in the attaciiment by his own act calls upon the garnishee to disclose, and by the rule of equity makes that answer evidence. It is a hard rule, then, and by reference to the authorities . it will be seen to have been founded on extreme cases ; to make one part of the answer of a garnishee or defendant to charge himself and be evidence against him, while another part of the answer, equally true and which by explaining the whole transaction, tends to discharge him, is not admissible unless substantiated by other evidence. But this rule of law is only applicable to cases where tbe party answering, admitting the facts in the bill, sets up other facts in defence or avoidance. The general rule of law is, that an answer responsive to the bill is proof in favor of the defendant, as to the matter of-fact of which a disclosure is sought from him, and it is conclusive in his favor, unless it is overcome by the satisfactory testimony of two opposing witnesses, or of one witness corroborated by other circumstances and facts. 2 Story Eq. Juris., 743-4; and according to the same authority, and all the authorities on this subject, a denial which is responsive to the bill, or matter to be discovered, is evidence in favor of the party answering and puts te opposite party upon disproving it. But there is another rule of law applicable to this ease : that a party who reads an answer (in a trial at law) makes the whole of it evidence, for it is read as the sense of the party himself, which must be taken entire and unbroken. 1 Stark Ev. 286; Bac. Ab. Ev. 622; Lynch vs. Clark, 3 Salk, 154. And when an answer in Chancery is given in evidence in a couit of law, the party is entitled to have the whole if his answer read; it is to be received as prima facie evidence of tbe truth of -the facts stated in it, open however, to be re-
:108 MAsny «mins/ .MCCAAIPBELL. f2 butted by the opposite party. Lawrence vs. Ocean Ins. Co., 11 j. R. 260 ; Hoffman and others vs. Smith, 1 Caine's Rep. 157. There seems to be an exception to this rule, that where the answer charges the defendant by the admission of one fact, and also charges him by the statement of -a distinct and further fact, the rule has been said to be, that what has been admitted need not to be proved by the plaintiff, but the defendant must malie out his fact in discharge. But here again the distinction was taken, that if the admission and discharge had been one entire fact,,it ought to have been admited unless disproved, because nothing of the fact charged was admitted. 1 Stark Ev., 286-7; Woodcock vs. nennett, 1 Cow. Rep., 743; Hart vs. Ten Eyck, 1 C. R., 89, 93. The answer of Mason is evidence, and that evidence shows that the instruction moved for was not an abstract question of law, but inseperably connected with the merits of the case; and that the refusal of the court to instruct was calculated to mislead the minds of the jury in making up their verdict, and prevented thein from. attaching that weight to the answer of Mason which it. deserved. It is contended that the court will presume every thing to have been proven which ought to have been proven to justify the finding of the jury. Such a presumption would be a little more violent, if this court would presume that such a fact, and all other necessary facts, were proven by two witnesses, instead of one, which it is necessary to do in order to weaken the conscientious answer of Mason. PIKE, Contra: The instruction moved for by the plaintiff in error in this case, was "that the answer of Mason should stand as true, until it was disproved." This instruction was upon a mere nbstract point of law. The plaintiff in error has • not incorporated any evidence in his bill of exceptions; nor does the bill of exceptions show that Mason's answer was the only evidence in the case—and that no evidence was introduced to disprove it. The rule therefore, established by this court in Edwards vs. Dan-ly, 1 Ark. 437; applied directly to this case. The court is now bound to presume that there was sufficient evidence produced tu
ARK.] MASON against MCCAMPRELL. 509 warrant the finding, and whether the instruction asked would have been correct or not, is a matter of no ithportance. The court will not, and in justice cannot, reverse any judgment because the court below erroneously refused to give a certain instruction; unless the plaintiff in error show that the instruction, if given, would have changed the result below. This he must show affirmatively. But here the court do not know that the instruction, if given, would have been of any avail, and are bound to presume that it would not. Were it not so, the instruction asked for was entirely too broad, and could not, consistently with law, be given. The plaintiff in error contends that the answer of a garnishee is like an answer to a bill for discovery. We are not aware of any particular difference . between an answer to such a bill and to any other bill. Justice STORY' says, in The United Stales vs. Langton and Trustees, 5 Mason, 281, that the answers of a trustee (or garnishee) under the trustee . process in attachment in Massachusetts, "are not to be more rigidly or differently construed from what they would be in a bill in Chancery." What then is the effect of an answer in Chancery , as evidence for the party who files it? In Bidgeway vs. Darwin, 7 Ves., 405, it was determined, that, where an executor is charged by his answer with the receipt of money he cannot discharge himself by affidavit, of different sums paid by him to the testator in bis life time. In Thompson vs. Lambe, 7 Yes. 587, it is laid down as the rule, that where a party is charged by his answer, be calm& discharge himself, unless the whole is stated as one transaction—as, tbat on a particular day he received a sum and paid it over—not, that on a particular day he received a sum, and on a subsequent day paid it over. So he must charge aud discharge himself in the same sentence. Kirkixttrick vs. Love, Ambler, 589. In Robinson vs. Scotney, 19 Yes., 546, the defendant charged himself with the sum of £400, received by him after his testator's death, and then set up various debts due from the testator to himself, which left a balance in defendant't favor. The Master of the Rolls decided, that the plaintiff might lay his finger on the admis-
510 MAsox against MCCA1M PBELL. [2 sion of the debt of £400. , and had nothirn, to do with defendant's al- legation of a larger debt due him from the testator—and that the defendant, where he charges himself in one part of his answer, and. sets up demands as credits in another part, must prove them. And the instance given by him, where a man can discharge himself by his anSwer, is, where he say s he received a sum, and immediately handed it over. In Boardman • vs. Jackson, 2 Ball and Bea. 385, Lord MANNERS said, "where a bill is filed, calling.pn a defendant to account, and the plaintiff is entitled to an answer, if the defendant set forth in the schedule to his answer an account, charging himself with sums of money, and in another schedule an accoimt of the disbursements of those sums, he . cannot, according -to the praMice of this court, avail himself of the second schedule to discharge himself in taking the account, although he would be char p. ed on his admissions in the first schedule. In Randall vs. Phillips, 3 ]iason, 383, justice SToity says, "so far as the answers in this cause set up new facts by way of discharge or avoidance of-the matter of the bill, .or allege separate and independent agTeements, they are not evidence for the denfendants; but all such allegations must be substantiated by proof alivnde. This is the general doctrine in equity, and is not now susceptible of any real doubt." The same general rule is recognized in 2 Story's Equity, .715; Briggs vs. Pennemov, S Cowen, 387; and Woodcock vs. Bennett, 1 Cowen, 744. 'So in Dunham vs. ;Jackson, 0 'Wendell, 30, the law was laid down to be, that "when an answer admits a distinct fact, which goes to charge the defendant, and alleges another, not responsive to the bill, by way of discharge or avoidance of that admitted, the latter is not established by the answer. If a guardian or trustee is called on to account, and in his answer admits a sum of money to have been received, and then proceeds to show the appropriation of it, what he. says about the appropriation, unless that and the receipts of it can be regarded as parts of a single transaction, is not evidence in his favor." See also Green vs. Hart, 1 J. R., 580 ; Wells vs. Query,. Lit. Sel. (las., 210 ; Paynes vs. Coles, 1 Mum., 373.
ARK.] AlAsoN against MCCAmmumf.. 511 LACY, Aid d« , , delivered the opinion of the court: It is impossible for this court to know whether the instrnctions were rightfully or wrongfully overruled, or what influence, if any, they might have had upon the verdict given. The bill of exceptions does not state that the answer of Mason constitutes all the evidence produced upon the trial; and therefore we are bound to presume that the judgment and verdict of the court below was in accordance with the justice and right of the case. It is certainly true that the answer of the garnishee is prima facie evidence of the truth ofthe allegations it contains. But these allegations may be rebutted or disproved by any other- competent evi-(knee. if there was no other evidence in the case, but the answer of the garnishee, it w . ou , ld then amount to full and conclusive proof of' the facts: it asserted. But if it was disproved, or the presumptions in its favor weakened or overthrown, all of which it is surely coMpetenf.for the plaintiff M' eStablish, then it would he entitled to nc weight.or consideration. nt ill the present case, the court below may, and probably.did refuse the instructions asked for, upOn the ground that the garnisbee's enswer was disproved by other higher . l egal eviden . ce adduced in support of the plaintiff's right of action. Be that bowever as it mav such is tbe legal presumption in favor of the . Verdict and judgMent below, and of course we are bound by it. • 1..t was . the duty . of the party excepting, if there was no . other evidence offered upon the record, so that this court could judicially know whether the instructions asked for were properly or improperly refused. Having failed to do so, he cannot now take advantage of his own negligence or omission, and consequently the judgment of the 'court below must be affirmed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.