James P. v. Moss

Mississippi Supreme Court

James P. v. Moss

9 Miss. 331

DecidedJuly 15, 1843

StatusPublished

This text of 9 Miss. 331 (James P. v. Moss) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

James P. v. Moss, 9 Miss. 331 (Mich. 1843).

Pincite

Opinion

Per Curiam.

Moss sued out an attachment against .the estate of an absconding debtor, and Booker Foster became his surety in the attachment, bond. The. plaintiffs in error were summoned- as garnishees, and denying that they were indebted to,, or had any property belonging to, the absconding debtor, issue was, taken on the answer;, and Foster was introduced as a witness. He was, however, released, by substituting new security, so• far as the costs.. But he was objected to as incompetent, on, the ground of interest.

By the condition of the bond, the surety is only bound for the costs, and damages that, may be awarded in any suit, to be brought for wrongfully suing out the attachment. How. & Hutch. Dig. 551. He is not liable for the costs in the attachment suit, unless these costs should be-awarded as damages in the second suit. This is not only a remote,, but a contingent interest. Be cannot be said to have a direct interest in the ekent of the' .attachment suit. Nor has he a direct interest in the contest with the-garnishees, which is a mere collateral'inquiry to ascertain what the garnishee owes the- defendant. That being estiaMished, the verdict against the garnishee could only be evidence to show the amount of damages which the defendant in-, attachment should recover in the second suit against the principal and surety in. the bond, for having wrongfully sued out the attachment, on the supposition that the amount recovered against the garnishee would be recovered back,, in case the. attachment was wrongfully sued out;-then the witness, being .also liable to any such recovery, was interested, if at all, to [339]*339diminish the amount of recovery against the garnishee, and consequently against the plaintiff; because if the plaintiff failed to get a verdict against the garnishee, that much risk was taken off the witness. -So that he was properly admitted as a witness, and the judgment must be affirmed.

Mr. Justice Clayton, having been of counsel in the cause, gave no opinion.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

Moss sued out an attachment against .the estate of an absconding debtor, and Booker Foster became his surety in the attachment, bond. The. plaintiffs in error were summoned- as garnishees, and denying that they were indebted to,, or had any property belonging to, the absconding debtor, issue was, taken on the answer;, and Foster was introduced as a witness. He was, however, released, by substituting new security, so• far as the costs.. But he was objected to as incompetent, on, the ground of interest.

By the condition of the bond, the surety is only bound for the costs, and damages that, may be awarded in any suit, to be brought for wrongfully suing out the attachment. How. & Hutch. Dig. 551. He is not liable for the costs in the attachment suit, unless these costs should be-awarded as damages in the second suit. This is not only a remote,, but a contingent interest. Be cannot be said to have a direct interest in the ekent of the' .attachment suit. Nor has he a direct interest in the contest with the-garnishees, which is a mere collateral'inquiry to ascertain what the garnishee owes the- defendant. That being estiaMished, the verdict against the garnishee could only be evidence to show the amount of damages which the defendant in-, attachment should recover in the second suit against the principal and surety in. the bond, for having wrongfully sued out the attachment, on the supposition that the amount recovered against the garnishee would be recovered back,, in case the. attachment was wrongfully sued out;-then the witness, being .also liable to any such recovery, was interested, if at all, to [339]*339diminish the amount of recovery against the garnishee, and consequently against the plaintiff; because if the plaintiff failed to get a verdict against the garnishee, that much risk was taken off the witness. -So that he was properly admitted as a witness, and the judgment must be affirmed.

Mr. Justice Clayton, having been of counsel in the cause, gave no opinion.

Cite This Page — Counsel Stack

Bluebook (online)

9 Miss. 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-p-v-moss-miss-1843.