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.
*61. 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 ansAvered 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. 0. 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.