Cameron et al. vs. The Justices of the Inferior Court, &c.

One bond is given for both, and each is liable for the acts of the other as surety, if in no other way.

The original recovery here, was against one administrator only, though both were sued, one not served: but it made him liable for assets in his hands to be administered. Those assets are not to be found by the sheriff. The administrator then, and his sureties, are liable on the bond. If we cannot recover against all, we can recover against none. The rule contended for would make administrators' bonds valueless; for the absence of one from the State, so that he could not be served with process in an original suit, would prevent all remedy against the other, or the sureties.

By the Court-WARNER, Judge.

This action was instituted, upon an administrator's bond, against Philip Mantz and John A. Cameron, administrators of James Leverich deceased, and their securities, alleging a joint devastavit by the administrators. To prove such joint devastavit, a judgment was offered in evidence, and admitted in the court below, obtained against Mantz alone, as the administrator of Leverich, together with an execution which issued thereon, and a return of nulla bona, by the sheriff. The error assigned is, that the court below held this judgment against Mantz alone was evidence to authorize a recovery against both defendants and their securities, on their administration bond, for the amount of the judgment. The plaintiffs allege a joint devastavit against both administrators. Does a judgment against one of them establish the affirmative of the issue? We think not. The allegation is, that the defendants as administrators wasted and eloigned the assets of Leverich. The evidence is, that Mantz wasted and eloigned such portion thereof as came into his hands; but one executor, or administrator, is not liable for the devastavit of his co-executor, or administrator, unless he has contributed, in some way, to the devastavit of his companion.-Toller's law of Executors, 430; Douglass vs. Satterlee, 11 Johns. Rep. 16. It was contended in behalf of the defendants in error, that in the eye of the law, co-executors and administrators are considered as but one person. This position is a correct one for many purposes, and the acts of one will be considered the acts of all, in reference to the administration of the assets; but we think it is well established, both by reason and authority, one co-executor, or administrator, cannot be made chargeable with the devastavit of his companions, when he has not, in any manner, contributed thereto. It was also urged on the argument of this case, inasmuch as the suit was on the bond, and all the defendants parties to it, they were all sureties for each other, and the plaintiff was entitled to recover. The answer to this argument is, that the plaintiff was not entitled to recover on the bond, in the court below, until he first established a devastavit against the administrators, according to law-and having alleged a joint devastavit against both of them, in his declaration, he was bound to prove such joint devastavit on the trial, which he failed to do. The judgment against Mantz alone, with the return of nulla bona on the fi. fa. issued thereon, may have been sufficient evidence to charge Mantz with a devastavit; but it certainly furnished no evidence of a devastavit by Cameron. The liability of the securities to an administrator's bond is not primary, it is an ultimate liability; and the following cases decide, that suit cannot be maintained on the bond, until a devastavit has first been established against the administrator according to law.-Jones vs. Anderson, 4 McCord's Rep. 113;

The Georgia Insurance and Trust Company vs. Oliver.

Braxton vs. Winslow, &c., 1 Washington's Virginia Rep. 31; Call vs. Ruffin, 1 Call's Rep. 333; Gordon's Administrators vs. Frederick, 1 Munford's Rep. 1; Faulk vs. The Judge of the County Court of Monroe, 2 Porter's Rep. 538.

We are therefore of the opinion, the court below committed error, in deciding the plaintiff below was entitled to recover the amount of the judgment rendered against Mantz alone. Let the judgment below be reversed, and a new trial granted.

No. 9.-THE GEORGIA INSURANCE AND TRUST COMPANY, Plaintiffs in Error, vs. JAMES S. OLIVER, Defendant in Error.

The question whether a Garnishee is liable for interest upon the fund in his hands, or the debt owed by him, which is sought to be recovered by process of Garnishment, is not one of strict law, but of discretion, depending upon considerations of equity growing out of the facts and circumstances of the particular case.

When the Garnishee resists the payment of the fund in his hands into court, or controverts his indebtedness, he will be held liable for interest.

It is a general rule, that persons who are prevented from paying over money by process of the court, as Summons of Garnishment, Writs of Injunction, and the like, are not liable for interest.

This was an action of Assumpsit tried before Judge Gamble in Richmond Superior Court, January Term, 1846; when the plaintiffs in error, who were defendants in the court below, confessed judgment for ten thousand dollars, with interest from 31st of March, 1845, and costs of suit, subject to the opinion of the court whether they were liable for interest and costs, under the following circumstances: "Prior to the commencement of the suit, the plaintiffs in error had been served with summons of garnishment in a number of attachments issued against the defendant in error, who was plaintiff in this cause in the court below; and that subsequent to the commencement of the suit, like summons of garnishment was served in other attachments." A list of the attachments served, with the time of service, and their amounts, was then set forth in the confession. It is deemed unnecessary to insert them here. Suffice it to say, that the attachments levied anterior to the commencement of the suit, amounted, in the aggregate, to more than the amount of the judgment confessed; to which attachments it was consented that the amount of the confession should be paid in the order in which they were served.

The action against the plaintiffs in error was predicated upon certain Policies of Insurance effected upon merchandise and other property of the defendant in error, in Wetumpka, in the State of Alabama, against donge or loss by fire, and the insured property lost amounted in value

than ten thousand dollars, the aggregate of the policies. Notice of which loss was given the plaintiffs in error immediately.

Georgia Insurance and Trust Company vs. Oliver.

The suit on the policies was commenced returnable to June Term, 1845, of Richmond Superior Court; at which Term the plaintiffs in error appeared by their attorney, and pleaded "non assumpsit," and also a special plea setting forth the facts of the issuing of said attachments against the defendant in error, and of the service of summons of garnishment upon themselves, as above stated, and prayed the judgment of the court whether, &c.

Whereupon the Judge below decided against the plaintiffs in error upon the questions submitted, because they had resisted the payment of defendant's claim under the policies up to the trial Term, upon the ground that it was unjust, notwithstanding they contended that they were prevented from paying under the attachments issued. To which decision of the Judge below, they excepted

1st. That during the pendency of the attachments against the defendant in error, they should not be liable for interest.

2d. That they ought not to be liable for the costs of the suit, inasmuch as the attachments were a bar to the same while they were pending.

A. J. MILLER, for Plaintiffs in Error.

It is a general rule that a Garnishee shall not be liable for interest, in the absence of fraud, collusion, or neglect to give notice of the attachment to his creditor.— Sergeant on Attachment, 108, 166; 2 Dallas Rep. 215; 1 Yeates Rep. 274; 4 Mass. Rep. 170. This case is not within any of the exceptions to the rule-nor does it appear that the Garnishees used the money. They held no money, but were liable on a contract of guaranty. The Garnishments were served before the money became payable; and they could at no time have been safe in paying the money without a judgment being entered against them in favor of the attaching creditor.1 Binney's Rep. 25; 5 Eng. C. L. Rep. 160. They ought not to be liable for the costs of the suit, because the attachments being first in point of time, were a bar to the action.

Wм. T. GOULD, for Defendant in Error.

Interest, in suits on policies of insurance, is not a matter of right, but depends on the conduct of the parties.-3 Binn. 301. It is therefore, in some measure, discretionary with the court to allow it, or not. But in this case there is no discretion; for the charter of the plaintiffs in error expressly makes them liable to pay interest, in all cases.-Prin. Dig. 410.

In this case the defendants below were not prevented from paying this debt by the attachments levied. They resisted the claim ab initio--did not answer the Garnishments-put in a defence in chief, at the first term, and the case, though then in order for trial, by their charter, (Prin. Dig. 410,) did not go to judgment till the term after. The presumption is, in the absence of all evidence to the contrary, that they continued to use the money, which was due the plaintiff below. They made interest out of it, and ought to pay interest for it.

The principle upon which interest is stopped, in cases of foreign attachment, is that the party is prevented, by act of law, from paying the money to his creditor. It is not his fault that the payment is delayed, for he cannot help it. But where as in the case at bar, he resists the claim, and would not have paid it, even had no attachment been served, the reason for relieving him from interest does not exist. This principle will reconcile all the cases. See 9 Johns. 71; 10 Wend. 97; 1 Peters C. C. 321; 8 Pickering 267-8.

By the Court-LUMPKIN, Judge.

The question of interest is not one of strict law, but of discretion, depending upon considerations of equity, growing out of the facts and cir

Georgia Insurance and Trust Company vs. Oliver.

cumstances of each particular case.—Anonymous, 1 Johns. Rep., 315; Pease vs. Barber, 3 Caines Rep. 266. In the latter case, Chancellor, then Chief Justice Kent, remarks, "there may be cases in which the defendant ought to refund the principal money only, and there may be other cases in which he ought, ex æquo et bono, to refund the principal with interest.

The general proposition contended for by counsel for the company is correct, namely: that persons who are prevented from paying over money, by process of the court, as summons of Garnishment, Writs of Injunction and the like, are not liable for interest.-2 Yeates, 280; 9 Wheat. Rep. 338; 4 Halst. 3; 1 Peters' Rep. 524; 2 Dall. Rep. 102; 1 Call Rep. 115. It would be unreasonable for the law to forbid a thing being done, and then to mulct the party in damages, in the assessment of interest, for not doing it; in other words, for not disobeying its own precept. The law works no such injustice, is chargeable with no such absurdity. Indeed, the whole doctrine of interest is based upon the idea that it is a profit, or premium, properly payable, for the use which one man has of the money of another or else it is a penalty inflicted for its improper detention. Now, if he cannot pay it, nor employ it, not knowing when he may be called upon by the judgment of the court for its forthcoming, it would be oppressive in the extreme to exact interest. Mr. JEFFERSON, as Secretary of State, put the resistance to the payment of interest, during the war of the Revolution, on our colonial debt, mainly upon the ground that the country, for want of tillage and trade, occasioned by the misconduct of the mother-country, our creditor, had produced nothing, and consequently ought not to pay anything.

But how stands the equity of the present case? Has there been no unjustifiable delay-no delinquency in the Insurance and Trust Company? Has it occupied the attitude of an innocent stakeholder of the fund in controversy, ready and waiting to discharge the amount due, whenever it should be directed to do so in behalf of the attaching creditors? And is it fairly to be inferred from the testimony, that the $10,000 lay idle in its vaults from February, 1845, when the first garnishments were served, up to January, 1846, when there was a confession of judgment for the whole amount of the policies? The fire occurred the last of January, 1845, and the usual notice, it appears, was given immediately thereafter. It is true, they were not compelled by their charter to pay under ninety days from the time of furnishing proof of the loss, and interest did not run against them until the expiration of that period; still there was nothing to prevent them from meeting at once their liability.

The history of this transaction, as presented by the record, is this. For certain reasons which appeared satisfactory to the company, no doubt, they early determined to dispute their responsibility. Oliver commences suit on the several policies, to June term of Richmond Superior Court, ensuing the fire. The attachments issuing mostly in the month of April preceding, were returnable to the Inferior, Superior, and Court of Common Pleas. None of the garnishments were ever answered by the company. Had the company insisted on the special plea, filed in bar of the plaintiff's action, to wit, the pendency of the attachments, and been sustained, it would have been forced to depose, either admitting or denyir hility. In the latter event, the affidavits would have been tra

Georgia Insurance and Trust Company vs. Oliver.

versed and a trial had thereon. In these issues, had the company been convicted of the payment of the $10,000, (and it is presumable that such would have been the finding, from the fact that it was finally admitted to be owing,) interest and cost both would have been recovered. Another and more convenient course seems, however, to have been adopted; that is, to suffer the garnishments to abide the result of the proceeding instituted by Oliver himself against the company. That case under the 8th section of the charter stood for trial at the first term, June, 1845.— Prin. Dig., 410. At that time nothing was done; nearly six months had transpired, and still the company delayed payment on the policies. At the end of another six months it comes forward, and without contest acknowledges its indebtedness for the $10,000, with interest thereon from the 31st of March previously, and cost-provided the court, under the circumstances, should hold it liable for interest and cost. Well, what are these circumstances, demands the court below, under which you claim exemption from interest on a contract on which it legally attaches?-2 Hall Rep., 589; 23 Wend. Rep., 525; Prin. Dig., 410. Why, that we were garnished, and could not have paid the principal if we would. But, replies the judge, that looks very much like an afterthought; you have been strenuously resisting the recovery upon the ground that it was unjust. If you have been honest and in earnest in this matter, there never was a time when you would have paid, if you could. You could have discharged the demand or most of it, before the bulk of these garnishments were served: you could have answered these summonses almost a year ago, and tendered, or offered to tender the money in court. 3 J. J. Marshall Rep., 68. You could have confessed judgment to the plaintiff six months before you did. To the reverse of all this, you have steadily and perseveringly denied owing him anything, down to the present moment :-interest has been accumulating against him all this while in favor of the attaching creditors. It would be cruel to Oliver to exonerate you from the payment of interest to him, particularly as you have not shown that you have been prejudiced by the garnishments--that you had the money ready, and that it had been rendered unproductive by reason of the garnishments. And as to the cost, resting, like the interest, in the sound discretion of the court, to be awarded upon full view of all the merits of the case, it would seem to be a necessary appendage to the confession of judgment. If the company was wrong in resisting the recovery, and that is admitted by the confession, the liability for cost would follow, of course.-2 Hen. and Munf. 589; 2 Johns. Chan. Rep., 166; 1 Johns. Rep. 555. And this direction as to cost conforms to the usual practice in similar cases.--1 Cox. (S. C.) Cases, 357; 3 Brown's Chancery Reports, 297; Dickens, 291; 6 Ves., 418; 9 Ves., 107. Such was the opinion, in substance, given in the premises, by the circuit judge, in the exercise of the discretion which the law confides to him. It would require a flagrant abuse of that discretion to warrant the interference of this court. On the contrary, we believe that it has been used wisely and well.

In the case of the Delaware Insurance Company vs. Delaunie, (3 Bin: Rep. 265,) Tilghman, C. J., says," Interest in all actions like the present is not a matter of course, but depends on the conduct of the parties. If the defendant has delayed payment improperly he is chargeable with i