Opinion
(Fall Riding, 1804.)
An administrator is not liable to answer, as garnishee, whether his intestate was not indebted to the defendant in the attachment.
THIS action was instituted by process of attachment, and Mrs. Snead, as administratrix of her deceased husband, was summoned as a garnishee, to discover whether her intestate did not owe a debt to Gurley, the defendant. It came up by appeal from the county court of ONSLOW.
Gaston Haywood for the garnishee.
Jocelyn for plaintiff.
Counsel for the garnishee made a previous question, to wit, whether an administratrix could be compelled, as a garnishee, to appear and answer.
(335)
She cannot; because having not contracted the debt, she cannot be presumed enough conusant of the transaction to answer. Also, she cannot by plea put upon the record the plea of plene administravit, or bonds, or judgments outstanding; for no such plea, nor indeed any plea, is allowed by law to a garnishee. All she could do would be to answer the interrogatories put to her; and if in fact she had fully administered, she might, by a judgment against her as garnishee, be forced to the commission of a devastavit. Should an issue be directed as to the debt itself between her and the plaintiff, what evidence could be given on the trial? The bond, note or other evidence of the debt would be in possession of the defendant, and could not be produced on the trial. If less evidence than that would do, then she could not tell how to plead as to assets, were she allowed a plea; whereas, if sued by the defendant, she could know by demanding oyer, before she pleaded, of what nature the demand was, and would defend herself, as to assets, accordingly. If she could on her garnishment put such defense on the record, which is much to be doubted, then she would be compelled to swear to the plea, which in all other cases she is not obliged to . Moreover, if she confessed the debt in part, not knowing precisely the amount, she would be condemned to pay it, and would not be discharged as other garnishees are; for a second and third creditor might still call on her as a garnishee, and, proving more of the debt still due, might have a second and third judgment against her; which is not the case with other garnishees. Also, the assets in the hands of the executor might, by means of an attachment and garnishment, be paralyzed; for while the executor was held up as a garnishee, no other creditor of the testator ought to be permitted to recover against him, since he is so far bound by the garnishment as if eventually there should be condemnation he will be bound to produce the assets attached in his hands. This would open a wide door to fraud, for just creditors by such means might be kept off at pleasure.
Garnishee discharged.
Cited: Gee v. Warwick, post, 354; S. v. Morehead, 65 N.C. 686.