Guckenheimer & Son vs. Day & Higgs.

described in the sheriff's levy on the attachment, which was then in the clerk's office of the superior court of the county, and prayed judgment against the property attached, and also a general judgment. To this suit the defendants filed a written demurrer, upon the grounds following:

(1.) That the attachment affidavit stated that Day & Higgs, using their partnership name and title, “conceal themselves," when it should have set forth that the individual members composing the firm conceal themselves.

(2.) It appears that the bond in the attachment proceedings is signed by an agent, and it is not shown that the agent had authority to bind the plaintiffs by his signature thereto.

(3.) That the levy made by the sheriff does not describe with sufficient certainty the property attached.

(4.) That the declaration "filed in the case" makes no sufficient reference to the proceedings, in that it fails to describe the defendants in attachment, or the term of the superior court to which it was made returnable, and "does not otherwise identify it as the declaration in said case."

Plaintiffs proposed to obviate the objections to the bond, levy and declaration by amendments, which the court refused. The demurrer was sustained, and judgment was rendered dismissing the suit; thereupon the plaintiffs excepted, and prosecuted their writ of error to this court.

1. We do not think that a proper construction of this affidavit justifies the conclusion that the firm, and not the individual members thereof, "concealed itself." The full names of the members of the firm are set forth, and then it is stated that "Day & Higgs conceal themselves." Day & Higgs were the members of this firm, and they are both' charged with concealing themselves. There is nothing in this ground of the demurrer, and it should have been overruled.

2. Neither do we think that there was enough in either the third or fourth grounds to sustain the demurrer. The statute allows an agent or attorney to sue out an attach

Long vs. Johnson.

ment, and consequently authorizes him to do whatever is necessary to perfect the process, including the execution of the bond required to accomplish this. Code, §§3265, 3266. We think the declaration also sufficiently identified the attachment upon which it was based. A reference to the record of file would have left no doubt of this fact. Id certum est quod certum reddi potest. But admitting the existence of the defects pointed out by the demurrer, they were amendable. The right is given to plaintiffs in attachment by express enactment to amend the attachment or declaration or bond as in other cases at common law. Code, §3316. At common law, pleadings may be amended as matter of right, either in form or substance, at any stage of the cause, provided there is enough in them to amend by. Id., §3479.

3. Even if the levy was informal, because it was not sufficiently specific, which, to say the least, in this case is somewhat doubtful, it can always be put in form by allowing the officer making to amend it, and authority is given. to the court before which the attachment is returned to order the amendment. Id., §3316. We are strongly in clined to think there was no necessity for these amendments, but as the plaintiffs were willing to make them, the court should have permitted it to be done. Judgment reversed.

LONG vs. JOHNSON.

1. To a suit on a note, the defendant having pleaded that the note did not belong to the plaintiff but to another, that in a suit against such other person, he had been garnished, and had tendered the money into court, and the issue being in whom the title to the note was at the date of the garnishment, there was sufficient evidence to uphold the verdict for the plaintiff, and it was not contrary to law and evidence.

2. If a negotiable promissory note is transferred before due as collateral security, it is protected from garnishment in a suit against the payee, and the debtor is liable to the holder for the principal and interest of the debt.

Long rs. Johnson.

(a.) Tendering money into court does not stop interest against a garnishee; he must pay it into court to stop interest.

3. Although a debtor, who was garnished in a suit against the payee of the note given by him, had answered, admitting the indebtedness and tendered the money in court, yet if no judgment was rendered against him, and no money was paid by him, and in the meantime another than the payee brought suit on the note, if a recovery should be had, the garnishee would be protected.

4. Where a promissory note was signed by two, and after the name of one of the signers were added the letters "S. C.," and where such person was sued as a surety, and the plea of the other defendant recognized him as such, there was sufficient evidence on which to found a verdict against him as surety.

November 11, 1884.

Garnishment. Promissory Notes. Vendor and Purchaser. Tender. and Surety. Before Judge SIMMONS. Court. April Term, 1884.

Collateral Security. Interest. Principal

Houston Superior

To the report contained in the decision, it is only necessary to add that the note sued on was payable to Cicero Johnson, or bearer, and was signed by T. J. Long and C. M. Newberry, "S. C." Suit was brought by W. G. Johnson against Long, as principal, and Newberry, as security The plea of Long speaks of him as the principal debtor. A recovery was had by plaintiff; a motion for new trial made by Long, was denied, and he excepted.

For the other facts see the decision.

M. G. BAYNE, by brief, for plaintiff in error.

A. C. RILEY; B. M. DAVIS, for defendant.

JACKSON, Chief Justice.

Suit was brought against Long and Newberry on a promissory note. A verdict was returned, and judgment rendered against the defendants, Long, as principal, and Newberry, as surety. Long made a motion for a new trial, and error is assigned on its refusal on all the grounds therein set out.

Long vs. Johnson.

1. The defence was that the note belonged to the payee, Cicero Johnson, and not to his brother, W. G. Johnson, the plaintiff in this suit; and that, in a suit in favor of Mary Long, the mother of defendant, against Cicero, the defendant was garnished and had tendered the money into court. So that the issue is, in whom was the title to the note when defendant was garnished? The verdict is supported by evidence that the title was in the present plaintiff at that time, and is not contrary to law and evidence, on the ground that it is not so sustained.

2. There was no error in the charge that, if the note was transferred before due to the plaintiff as collateral security, it was then protected from garnishment, and defendant was liable for principal and interest. There is evidence that the note was so transferred as collateral, if not in words, in deduction from the facts proved, and the charge was authorized by the evidence. Tendering the money into court does not stop interest against a garnishee; he must pay it, to stop interest, into the court.

3. There was no error in instructing the jury that, if they found for plaintiff, defendant would be protected. from paying the money as such garnishee, though he had answered that he owed it to the party sued in the case in which he had been garnished. If he did not in fact owe it, and the note was then transferred before due to another, he was protected. No money had been paid by him, and no judgment rendered against him as garnishee.

4. The note, on its face, has the appendage of S. C. after Newberry's signature; he was sued as security, and Long's plea recognizes him as such. Therefore there is no error that the verdict or judgment makes him liable as surety, on the ground of want of proof. The defendant's plea admits it, and Newberry does not complain.

It is clear on the law and facts that the verdict ought to stand.

Judgment affirmed.

Fry et. al. vs. Calder et. al.

FRY et al. vs. CALDER et al.

1. Attorneys who were employed to resist the liens claimed by mechanics and contractors on real estate, amounting to five or six hundred dollars, and who succeeded in reducing the recovery to about sixty dollars, had a lien for their fees upon such property as against the owner who employed them. The reduction of the claims against the property was equivalent to a recovery to that extent.

2. Property recovered by attorneys remains subject to their lien for fees, unless transferred to bona fide purchasers without notice. Where, pending the litigation in regard to the lien, the defendant sold the property to pay a debt, and in the contract with his vendee the liens were recited, and it was agreed "that a credit shall be entered in his (defendant's) favor on account of his indebtedness for as much of said sum of five thousand dollars as shall remain after fully satisfying such of said claims as shall be ascertained to be legally chargeable as liens upon said property," the purchasers were put upon notice, and were not bona fide purchasers without notice, so as to defeat the liens of the attorneys of the defendant.

(a.) If the earlier decisions of this court seem to militate against this view, they were made prior to the act of 1873 (Code, §1989), and are not now applicable.

February 7, 1885.

Attorney and Client. Liens.

Notice. Before Judge HAMMOND.
March Term, 1884.

Reported in the decision.

Vendor and Purchaser.

Fulton Superior Court.

GEO. T. FRY; ALEX. C. KING, in propriis personis, for plaintiffs in error.

JACKSON & KING, for defendants.

JACKSON, Chief Justice.

Fry and King filed a petition before the superior court. against Calder and the Chess-Carley Company, setting up a lien as attorneys at law upon certain real estate, sold by