Opinion l>y
G-bbeNE, J.Perry "Wilson & Co., obtained a judgment against Samuel S. "White, before a justice of tbe peace, on which execution was issued with a garnishee clause, against William Gr. Albright. On the return day, March 10th, 1847, Albright appeared before the justice, and in reply to interrogatories answered in substance, that he had no goods, moneys or eifects belonging to the defendant in his possession or under his control; but that on the 1st day of April, 1845, J. W. and W. Gr. Albright gave their note to S. S. White or order for two hundred and twenty-five dollars payable in two years after date; that said White before leaving the country, deposited the note with him and took his receipt for the same; and that the note is still in his possession. Upon this answer alone, it appears that the justice rendered judgment against W. Gr. Albright as garnishee. But on being brought to the district court by certiorari, this judgment was reversd.
1. It is urged for the plaintiffs in error, that the district court erred in reversing the judgment of the justice, as it did not appear by his returns to the certiorari, what that judgment was. It is true that the specific form of the jndgment is not set forth by the returns of the justice in hmc verba, but still sufficient is contained in the affidavit, writ and returns, to leave no doubt that judgment was rendered by the justice against the garnishee for the sum of forty-three dollars, the amount of the judgment against S. S. White in favor of Perry Wilson & Co. This was sufficient to give the court jurisdiction. B esides the necessary legal presumption that the court below had before it the proceedings of the justice, and all the material facts in due form, upon which to'predicate an enlightened decision, it appears by the bill of exceptions, that the papers on file *127in tbe case witb tbe facts as they appeared of record, were submitted to tbe consideration of tbe court, and upon these tbe judgment of reversal was rendered. It bas repeatedly been decided by tbis court, that a judgment cannot be reversed by reason of any diminution in tbe transcript of tbe record. If defective, tbe plaintiff should have it perfected ; and if not perfected, tbe correctness of tbe proceedings below must necessarily be presumed.
2. The second assignment claims, that tbe court erred in reversing tbe judgment of tbe justice, because tbe answers of the garnishee show that be was liable.
Tbe decision of tbe district court was doubtless mainly predicated on tbe facts: 1. That the note given by J. W. and W. G-. Albright was a joint obligation, not due, nor in tbe possession of tbe payee at tbe time judgment was rendered against W. G-. Albright, one of tbe joint maters. It is conceded that one of two joint-obligors cannot be held liable in a proceeding of garnishment, on an indebtedness exclusively joint. 2. Tbe note was not diie. It is clear that to justify such a judgment, there must have been an actual pending indebtedness from tbe garnishee to tbe execution defendant, and not merely a liability to pay at some future day. Tbe language of tbe statute is, “that if any such garnishee shall be found to be indebted to tbe defendant in any such execution, a judgment shall be rendered against such garnishee for tbe amount for which be admits himself indebted in bis said answer, or so much thereof, as will satisfy any such execution.” Tbis is explicit and leaves no room to doubt that a judgment cannot legally be rendered against a garnishee on a liability not due. It bas been decided by our territorial supreme court, that tbe maker of a negotiable instrument cannot be made liable on a garnishee process unless tbe instrument is due, and shown to be in possession of tbe execution defendant. Jefferson County v. Fox et al., Morris 48. A decision so conformable to justice and tbe true meaning of tbe statute, cannot be disturbed. It would appear repugnant even to tbe weakest conception of right, to place a garnishee un-*128dcr greater liabilities to the garnishor than he would be under to bis creditor.
But plaintiff’s counsel contends that the garnishee in this case, was liable as holder of' the note and on the receipt he gave, when the note was placed in his possession. Giving a receipt for a note deposited with him for safe keeping, or for collection, could not of itself create a pending indebtedness, nor render him liable as garnishee. Independent of the consideration, that White’s beneficial interest in the receipt may have been transferred, we must conclude that if Albright was not liable in an action to White on the receipt, withoxtt previous demand and refusal to deliver up the note, or tile amount collected thereon, he certainly could not be held amenable as garnishee.
Again, it is urged that the note should be regarded as property or effects of White in the hands of Albright. But even adinitting it in that light, the proceedings of the justice appear equally objectionable. Under the Ith art., and 10th section of the justice’s act, a judgment can be rendered against the garnishee for such amount only as he may acknowledge himself indebted. And in the attachment clause of the same act, Art. 9, section 19, it is provided, that issues between the plaintiff and garnishee, shall be tried as ordinary issues between plaintiff and defendant, and if on the trial of any such issue, property or effects shall be found in the hands of the garnishee, the justice or jury shall assess the value thereof, and the judgment shall be for the amount in money. Though this section is arranged under the article headed “attachment,” its provisions appear to extend generally to proceedings of garnishment; and a judginent for property or effects in the ‘hands of a garnishee, can be rendered only in conformity to its provisions. Judgment cannot be rendered against a garnishee, unless he acknowledge indebtedness. Rev. Stat. 331, §10.
3. It is assigned as error, that the court rendered a judgment of reversal on a writ of oertiorevri, where judgment should have been according to the very right of the cause, *129either for tbe plaintff or defendant. "W"e cannot believe that this objection is urged with much seriousness. Tliough tbe statute requires tbe district court in such cases, to give judgment as tbe right of tbe matter may appear, it also provides that tbe judgment may be affirmed or reversed, in whole, or in part. But even if limited to tbe “very right of tbe matter,” such right would often require an unqualified reversal or affirmance.
L. R. Reeves, for plaintiff in error. D. F. Miller, for defendant.No sufficient reason appears for disturbing tbe judgment of -the district court in this case.
Judgment affirmed.