Randolph & Leslie v. Heaslip. George C. Dixon for appellee. BALDWIN, J.-The appellee was summoned to answer as garnishee in an attachment proceeding wherein appellants were plaintiffs, and James W. Mitchell and John Cope were defendants. Upon the 13th day of August 1858, appellee, in answer to certain interrogatories propounded by the sheriff, who had served notice on him, stated that he had contracted with Cope & Mitchell to do the brick work on a certain house for him; that Mitchell owed him at the time of such contract, $300 in brick work; that he had been garnished and directed not to pay Mitchell any property, money, &c; that Cope had gone on and finished up the work; that if he was compelled to settle with them as a firm, he would owe them nothing; that if compelled to settle with Cope individually, he would owe him in the neighborhood of $100. Upon the 14th of February, 1859, appellee again answered before a commissioner, that he owed the firm of Mitchell & Cope nothing; that they owed him; that he would be owing Cope, individually, from $20 to $25, as near as he could tell without a settlement. Upon the 11th day of February, 1860, the appellee by his attorneys filed his amended answer, setting forth that he had made an examination and comparison of accounts with John Cope, and that he was indebted to him in the sum of $72.13, which he was ready to pay to plaintiff under the order of the court. Upon the first day of August, 1859, the plaintiffs filed a replication, taking issue upon the first answer of appellee, and claiming that the appellee was indebted to the said Mitchell & Cope in a large amount, and that he was indebted to Cope in a larger sum than one hundred dollars; and asked judgment for an amount sufficient to pay their claim in the sum of six or seven hundred dollars. Upon the 11th day of February, 1860, appellants, by leave of the court, amended their replication, denying the amended answer of appellee and again claiming that appel Randolph & Leslie v. Heaslip. lee was indebted to said Mitchell in a large amount, and also to said Cope. Upon the issues thus joined there was a trial by jury, which found that appellee was indebted to Cope in the sum of $72,13, the amount stated in his answer; and that he was not indebted to James Mitchell in any sum whatever. Upon this verdict the court rendered judgment in favor of plaintiff for the sum of $72,13 without costs. The appellants moved the court to tax the costs of the trial upon the answer of the appellee, against the garnishee, as the said garnishee had not tendered the amount admitted to be due, nor paid the same into court before said judgment was rendered. The court refused to sustain said motion and taxed the costs against appellant. From this ruling the plaintiffs appeal. A garnishee is not compelled to pay money or property attached in his hands, into court, in order to avoid the payment of cost, under our statute. He may pay such sum or property over to the sheriff and save himself from further responsibility. It is a matter of privilege with him. If it is property or money which he may have, and liable to depreciate in value, he may, by paying over to the sheriff, save himself from further liability. If a garnishee refuses to answer, or seeks to avoid a fair investigation of his liability to the party attached, he should be chargeable with any costs occasioned by such contract. The only question presented in this case, relates to the duty of a garnishee to tender the amount he confesses to be due. Under section 1861 of the Code, the mode of attachment by garnishment is prescribed, and by such process the garnishee is required to retain in his possession all property of the defendant, that the same may be dealt with according to law. It is submitted by the appellant that the garnishee, by his answer in this cause, compelled the plaintiff to a trial; and that they obtained a judgment for a greater sum than the garnishee in his answer admitted to be due. It would be a sufficient answer to this position, to say that no such ques Williamson v. Haycock, et al. tion was presented by the motion to tax the costs to the appellee. It does not appear when the costs were made, of which the appellants complain. The issue was not made by the plaintiff until a few days previous to the trial; the costs may have accrued after that time, so far as the record shows. The appellee may have answered correctly in both of his answers, and before the trial, or before his last answer, may have become indebted to, or come into the possession of property of, the defendants upon which such answer was based. There is no evidence in the record to contradict any such presumptions. Again, the issue made by plaintiffs was that appellee was indebted to Mitchell in a large amount, and to Cope in a larger sum than appellee admitted by his answer. The issues thus made were not sustained by the verdict of the jury. The court ruled correctly upon plaintiffs' motion. Judgment affirmed. WILLIAMSON V. HAYCOCK, et al. 1. COPARTNERSHIP: BILL IN EQUITY. As a general rule, a bill in equity by a partner for a balance due upon co-partnership business should show a final settlement of the co-partnership business, or ask the court to marshal the assets and make a final settlement between the members of the firm, 2. SAME: The failure to make such allegations will not be fatal to the bill on the final hearing if the answer and evidence disclose a state of facts which necessarily raises the presumption that such settlement was made. 3. ANSWER OF CO-DEFENDANT. The answer of a defendant in a chancery proceeding does not bind his co-defendant. 4. EVIDENCE OF CO-DEFENDANTS. A party in a chancery proceeding may make witnesses of one or more of his adversaries. Appeal from Louisa District Court. Williamson v. Haycock, et al. SATURDAY, OCTOBER 6. THE material facts are stated in the opinion. Chas. H. Phelps, for the appellants. Henry O'Connor, for the appellee. LOWE, C. J.-This was a proceeding in equity between members of a co-partnership, based substantially upon the following facts: On the 9th day of February, 1852, the parties agreed to become co-partners in the purchase of a certain twenty acres of land, together with a steam flouring mill and other buildings situated thereon, for the term of three years, and with the view of making further improvements on said premises, carrying on the milling business, purchasing, manufacturing grain &c. Prior to this time Lockwood and Williamson had been partners, and in the formation of this new firm they as one party were to advance one-third of the capital, and own one-third of the property; Haycock one-third and Benifield one-third; and the firm was to be known by the name of B. A. Haycock & Co. Haycock was to be the miller and the active and managing agent of the concern, keeping the books, and doing whatever should be necessary to advance the best interests of the concern; for which he was to have an extra allowance of three hundred and fifty dollars per year. A settlement of the general business of the firm was to be had on the first days of February and August of each year. At the termination of the firm, whether by lapse of time, death, or the agreement of the parties, the debts of the firm, were the first to be paid out of the co-partnership funds, next each copartner was to receive the amount due him for advances which he may have made above his proportion with interest at the rate of ten per cent per annum, and the residue of the partnership property and securities to be equally divided. Williamson v. Haycock, et al. On the 10th day of May 1854, a settlement took place between the members of the firm, and it was found that Lockwood and Williamson had advanced $1072,52 and Haycock had advanced some $423, over and above their share of the capital stock, and that Benifield was in arrears perhaps to that amount. Due bills were executed by the firm of B. A. Haycock & Co. for these respective sums to the parties to whom they were due; and they were to draw the interest agreed upon in the articles of co-partnership. That in February 1855, another settlement occurred, when a credit of $24,22 cents was put upon plaintiff's due bill of $1072,52. In June following this, a dissolution of the partnership took place by mutual consent. The complainant becoming the sole owner of this claim of $1072,54, commenced his suit in chancery against all the other members of the firm, in August 1855, to recover the same; and represents in addition to the above facts that the defendant Haycock, who was the managing member of the firm, had disposed of all the property of the firm, and that he had in his hands funds belonging to the firm sufficient to pay his claim, besides a large amount of notes which he held against one Scofield who had purchased the property. The defendants Lockwood and Benifield never filed any answer to this petition. Some two years or more after the suit was commenced, Haycock did make his answer, but not materially changing the facts above specified, except to deny the plaintiff's claim. He does however set up some new matter in his answer which will be hereafter noticed. Upon this petition, Haycock's answer, and the deposition of Lockwood, the case below was tried, and a decree given to the plaintiff for the amount of his claim and interest. In reviewing this case, counsel for the defense invite our attention, first, to the equity of the petition, claiming that the plaintiff by his own showing is not entitled to relief; that he makes the articles of co-partnership a part of his petition which show that due bills held by members of the firm |