Burt v. Parish & Co. held, in the recent decision of Jones v. Pope, 6 Ala. R. 154, that the entire omission of a bond and affidavit must, to be available in error, be taken advantage of in the court below by plea in abatement. It is evident, that defects in the affidavit or bond, however gross, cannot avail the party, if their entire omission cannot. The decision referred to seems a conclusive answer to all the assignments, which fall within the first division of our consideration. 2. It is true, the statute (Dig. 59, § 19,) directs the sheriff to summon the garnishee, in writing, but we suppose the intendment must arise, that he has done so, when the return is, that he has summoned an individual as garnishee. In our judgment, no other conclusion is to be drawn from the sheriff's return, than that the writ was executed by summoning Mrs. Hill as garnishee-whether the summons was in writting, or otherwise, is immaterial now to consider, as that seems to be an inquiry in which the garnishee alone is concerned. In analogous cases of sheriff's returns, we have always held, that the return would be construed with reference to the mandate of the writ, and that it was unimportant to state the property levied on, as being the property of the defeudant. [Lucas v. Brooks, 6 Ala. R. 831; Bickerstaff v. Patterson, 8 Porter, 245; Kirksey v. Bates, 1 Ala. R. N. S. 303.] In our judgment, the return is sufficient. 3. The point next in order to be examined, might be disposed of quite briefly, if we were authorised to consider the assessment of damages as applicable to the common counts; but it is insisted this can only be done when a verdict has been found on a material issue; and therefore, without assenting to the proposition, we shall waive it, and examine the special count which is said to be defective. The defendant is not, technically a party to the note, which he assigned to the plaintiffs, inasmuch as it is payable to another person, and is not indorsed by the payee-a matter necessary, under our statutes, to the complete transfer of the note, although that is payable to bearer. According to the allegations of the pleader, it seems, the defendant, by his indorsement, assigned the note to the plaintiffs, and guaranteed the due payment of its amount, waiving the suit and diligence against the makers required by law. This contract, by the commercial law, Burt v. Parish & Co. would import a guaranty; and, ordinarily, the guarantor is entitled to notice of non-payment, (Chitty on Bills, 474, and cases there cited;) though it is said the omission of notice will not operate as a discharge, if the plaintiff is prepared to show, that the guarantor has sustained no loss by the omission to give it. [Ib.] With us, however, such an assignment is considered as an imperfect indorsement, which subjects the party to the same liabilities, as he would be under if he was a formal party to the note, with the exception, when the maker is insolvent, that it is unnecessary to ascerthat fact by suit. [Jordon v. Garnett, 3 Ala. R. 610; Nisbett v. Bradford, 6 Ib. 746.] Such is the effect of a general indorsement, by one who is not a party; but here the individual has waived not only the suit against the makers, but the diligence required by law. The assignment is made, too, before the note was at maturity, therefore no inference can arise, as it did in Granniss & Co. v. Miller, 1 Ala. R. 471, that the indorser intended not to be held immediately and directly responsible, upon a demand of payment from the maker. On the contrary, it seems quite clear, his intention wast to be absolutely bound, in the event the makers did not pay the note at its maturity; for, otherwise, the terms due payment, have no meaning. The suit against the maker, and all diligence being waived, there is no other condition in the contract, than to await the maturity of the note. The case as presented, is identical in principle with Allen v. Rightman, 20 Johns. 265, when the waiver of demand and notice being all the diligence required by the law of New York, was held to leave the contract an absolute one to pay upon the maker's default. In the special count, after stating the substance of the defendant's contract, the plaintiffs alledge the non-payment of the note, by its makers, at maturity, and therefrom deduce the defendant's liability. In our judgment, nothing more is essential. 4. In this connection, however, it is also insisted, that an averment of notice to the defendant, of the non-payment, is necessary in the pleadings, even if the contract is considered as binding him to pay absolutely, upon the default; inasmuch as the fact of the default is more immediately within the knowledge of the plaintiff. This may be a very proper gen Burt v. Parish & Co. ral rule but certainly does not extend to cases where a party contracts to make payment upon the performance or non-per•formance of some act by a stranger. It is said the promisor is bound to take notice of the act at his peril, [Chitty's Pl. 328,] and it has been expressly held, when one has guaranteed the performance of a particular act, by another, upon a day certain, that notice of the non-performance is unnecessary to be given, to the guarantor. [Williams v. Granger, 4 Day, 444; Lent v. Paddlefield, 10 Mass. 230.] Governed by these rules, it seems clear, the count must be considered as substantially good. 5. It yet remains to consider whether the plaintiff was authorized to take a final judgment in the condition of the case, as presented by the record. Upon a first view, a majority of the court were inclined to sustain the judgment, upon the idea, that the judgment ni si against the garnishee, was equivalent, in legal effect, to her answer; but then, there was the difficulty which would arise if she, before this conditional judgment is made final, denies all indebtedness and shall be discharged. In that ent, nothing equivalent to service of process would appear; and, of necessity, the judgment against the defendant would be set aside. On the other hand, the difficulty is to obtain a judgment against a garnishee who refuses to answer, when there has been no other service of the attachment to warrant a judgment against the debtor. A brief collation of our statutory provisions, with our decisions on this subject, will aid us in coming to the proper conclusion. The garnishee is required to answer within the four first days of the term to which the attachment is returnable. [Dig. 59, 19.] And if he fails to appear and answer, then a conditional judgment may be entered against him, upon which a sci. fa. issues; and, if he remains in default after service and return, the conditional judgment is to be confirmed, and execution awarded against him, for the plaintiff's whole debt and costs. [Ib. § 20.] In Gaines v. Bierne, 3 Ala. Rep. 44, and Leigh v. Smith, 5 Ib. 583, we held, that no final judgment could be given against a garnishee until one was rendered against the debtor; but in neither of those cases was it the question, whether a conditional judgment Burt v. Parish & Co. rendered upon the default of answer might not be made final, if essential to warrant a judgment against the defendant in attachment. If it be true that no judgment can be given against the garnishee until one is recovered against the debtor, it is obvious the refusal to answer will defeat the attachment; as nothing equivalent to service will appear, when the attachment is served by garnishee process, until an answer comes in. This certainly was not intended by the legislature, and such a construction should be given as will enable the suitors to have the remedy evidently intended to be given. Under our general statute (Dig. 334, § 115,) no judgment can now be given at the appearance term ; and it was previously so as to non-resident debtors in attachment suits. [Ib. 58, § 15.] Yet the conditional judgment against the garnishee in default may be taken, as before shown, after the first four days of the term. This conditional judgment, it is obvious, could be only for such sum as the plaintiff should subsequently recover from the debtor; and when made absolute would possess no greater certainty, unless the condition of the suit as to service, was such as to warrant a judgment against the debtor, independent of the proceedings against the garnishee. What is said in Dickinson v. Walker, 1 Ala. Rep. N. S. 48, must be construed with reference to the proceedings then before the court, which showed a final judgment against the debtor, and with regard to which we held, a judgment ni si for an uncertain sum to be error. As no other final judgment can be rendered when that to be recovered from the debtor is yet unknown, it seems to us that such a one would be proper, and entirely equivalent to an answer of the garnishee, admitting a debt due. Upon it, a judgment against the debtor would be the necessary consequence, as well as the award of execution against the garnishee, for the plaintiff's whole debt and costs. This difficulty of getting a judgment against the debtor, in cases where the attachment is supported alone by service of garnishment, upon the neglect of the garnishee to answer, being removed, the other difficulty first noticed, is entitled to its full weight, and shows the present judgment was premature. We can perceive no way to obviate the irregularity, which would arise if the garnishee can be subsequently discharged after a judgment Hall v. Alexander. ni si, but to withhold the judgment against the debtor until that is made absolute. It is scarcely necessary to add, that such would not be the necessity when the service of the attachment is complete, by a levy, or by the answer of any one garnishee, admitting a debt. On this ground, the judgment of the County Court is reversed, and the cause remanded. HALL v. ALEXANDER. 1. A distributee who has received a portion of his distributive share, and releases to the administrator all claim upon the residue, is a competent witness for the administrator, in a suit against him by a creditor of the estate. So also is the husband of a female distributee, who releases his wife's claim to such residue. 2. The administrator is not a competent witness to prove to the court, that he had funds in his hands sufficient to pay all the claims of creditors, for the purpose of enabling the distributees of the estate to testify. But if the distributees execute releases to him, previous to being admitted to give evidence, as his testimony could not prejudice, it will not be an error available in this court, Error to the County Court of Lowndes. ASSUMPSIT by the plaintiff, against the intestate, defendant in error, to recover wages as an overseer. From a bill of exceptions, it appears the defendant introduced as a witness, Edmund Alexander, an heir and distributee of the intestate, who had received a portion of his distributive share of the estate, and had not given to the administrator any refunding bond; that the witness had executed, and delivered, a release, and relinquishment of all his interest in the residue of the estate, to the defendant, the sole administrator of the estate. The intestate left real estate, and be |