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The Opinion of the Court was delivered by

Scates, J.*

Williams sued out a foreign attachment against David Worden, and served process upon McCoy as garnishee, on the twenty fifth day of March, 1840. Judgment was rendered against Worden at the September term, 1841, for ninety five dollars and eighty cents.

Interrogatories were filed and answered, the answers excepted to, and additional interrogatories filed and answered; again excepted to, and further interrogatories filed and answered. At the July term 1844, the cause came on for hearing upon the answers. The Court found McCoy indebted to Worden in the sum of one hundred, twelve dollars and forty two cents, for which judgment was rendered, to which plaintiff objects by his assignment of errors.

The plaintiff filed and exhibited his account against Worden, as a part of his answer: The controversy arises upon eight items of this account, which charges Worden as debtor to McCoy as follows :—

“1839, Aug. Note of subscription to Seminary, $500-00

“ “ Paid S. M. Hitt, for Worden, 1015-00

1840, Spring, Assumed payment of note to J. Cooley 80-75

1839, Fall, Assumed amount of J. B. Crist, 235-65

1840, April, Debt of Whitner of $100, on account of Bond claim, which I made and have paid most of, and gave my note for balance, 100-00

“ Judgment against me for $100.00 by J. W. Jenkins, of Worden’s debt, paid, 90-00

“ Judgment on appeal by Phelps, on Worden’s note for $66, I have paid 20-00

“ Paid to B. Heisland on judgment against me as garnishee, all paid, 35-00”

His whole account, including these items, was $2512-85.

By our statute, a garnishee is liable for all that may be in his hands, or owing by him to the principal debtor upon a fair settlement between them, from the service of the garnishment. Gale’s Stat. 68, § 15. The garnishee may avail himself of any defence, that would be properly plead-able as a set-off by the laws. Ib. 71, § 23; Smith v. Stearns, 19 Pick. 20. If the plaintiffs shall allege that the garnishee hath not disclosed the true amount of debts due from him to the defendant, &c., the Court shall direct, without the formality of pleading, a jury to be impanneled to inquire of the true amount; if they find for the plaintiff, the Court shall give judgment for him; if for the garnishee, he shall recover his cost. Gale’s Stat. 68, § 16. Without an allegation and issue, then, the answer is to be taken as true. Chase v. Bradley, 17 Maine, (5 Shepley,) 95; Cushing’s Trustee Process, 96.

We come, therefore to adjust this matter as between McCoy and Worden, and upon the statements in the answer, just as we would, if Williams was not before the Court; yet, on his account, giving the statute a liberal interpretation for the detection of fraud. Gale’s Stat. 71, § 27. Some of the items of McCoy’s account have been ascertained and added, and some payments made on Worden’s account, by him, since the service of process. But this is immaterial, if the liability existed at that time. The rights and liabilities of the parties at that time must be adjusted as they existed, by ascertaining the state of the account; and settlements and payments may be made afterwards. Three of these items are parol assumptions of Worden’s debts to third persons. These might have been avoided under the Statute of Frauds by McCoy, if credit were not originally given to him, which strongly appears in relation to the assumpsit to Hitt, or unless further time of payment were given to the debtor, which might constitute a good, substantial consideration to support the promise. But the plea of the statute is a personal privilege, like the plea of infancy, which the party may waive. Another cannot plead it for him, nor compel him to plead it. Cahill v. Bigelow, 18 Pick. 369; Weed v. Jewett, 2 Met. 608; Swett v. Ordway, 23 Pick. 367. The promise is a good, moral consideration to support the payment.

The only question is, therefore, whether these several items were subsisting liabilities and demands between the parties, on the twenty fifth day of March, 1840, when the garnishment was made. The answer states in relation to the note for five hundred dollars, that Worden gave it in the spring of 1839, to the trustees of the Rock River Seminary as,a subscription on his part, towards building the Seminary. McCoy having a contract with them to put up the building, and being entitled by his contract to advances in cash, this note was given to him by the trustees in the summer or fall of that year, as an advance of so much cash, to enable him to proceed with the work, which he afterwards performed to more than the amount. This item was most clearly a good and subsisting demand against Worden.

In relation to the item of one thousand and fifteen dollars, paid to Hitt, at Worden’s request, he-says that Hitt was indebted to him for work and materials, at the time he agreed to pay him so much for Worden, which was in the winter of 1839-40; that the promise was made to N. Swingley, Hitt’s agent; and that he knows nothing of the consideration of the indebtedness. I can see no reason to question this item, as an existing liability, on the twenty fifth day of March, 1840, and legally subsisting, unless McCoy chose to plead the Statute.

In relation to the eighty dollars and seventy five cents paid Cooley, he says, that Cooley held a note for that amount against Worden; that in the fall of 1839, Worden requested him to pay it to Cooley, and during the same fall he promised Cooley to pay it. This liability on his promise is sufficient to entitle him to pay it.

The item of two hundred, thirty five dollars and sixty five cents paid Crist, was an assumption to Crist for Worden, before Crist delivered the goods to Worden: he assumed the liability to Crist in the fall of 1839, at Worden’s request. Crist obtained a judgment against him, and he paid it in carpenter’s and joiner’s work in the summer of 1841. The principles I have laid down in relation to the Statute of Frauds, and the existence of the liability at the service of process, would clearly admit this item as a good set-off against Worden, subsisting at that time.

The item of one hundred dollars paid Whitner on the Bond claim is explained thus: Worden purchased a claim of land from Bond; when he left the country, he requested McCoy to lease it out. He did so to Whitner, but Bond would not give possession, because Worden had not paid him. Whitner claimed one hundred dollars damages upon the lease of McCoy; they referred the matter to arbitrators, who awarded that Mc’Coy should pay that amount, for which he gave his note, and has since paid most of it. The request and lease were made in the fall of 1839. He acted merely as agent for Worden in the matter, and had no interest in the claim. This is sufficient to entitle him to set it off on settlement with Worden.

In relation to the items of ninety dollars to Jenkins, and twenty dollars to Phelps, for which McCoy became bound by signing an appeal bond with Worden, and on which they have recovered judgment, &c., he- states no time, as the date of the appeal bonds. The answers, in which he states these matters of discharge for so much, were filed in this cause in September, 1842, and May, 1844. If the appeal bonds had been signed before the twenty fifth day of March, 1840,1 should have no hesitation in allowing him, under the provisions of the twenty third section of the attachment law, (Gale’s Stat. 71,) to set off these items, and so indemnify himself against a future contingent liability, but which he will certainly incur in this case on account of the insolvency and death of Worden. But for any thing we can infer in this case, these appeal bonds may have been signed after the garnishment. This supposition receives strength from the fact ihat there appears to have been many suits against Worden about this time, and the further fact, that Worden was in the country on the sixth day of June, 1840, and made a partial settlement with McCoy.

The rule applicable to such a case is, that when a garnishee is once charged, either by proof or his own admission and answer, he must show enough to discharge himself. Wright v. Ford, 5 N. Hamp. 178; Cushing’s Trustee Process, 97, § 233. Not having shown sufficient matter of discharge in relation to these items, they cannot be deducted from Worden’s account, as it stood on the twenty fifth day of March, 1840. He might easily have given the dates of the appeal bonds. Not doing so, and stating no other facts, or circumstances from which it can be drawn, his discharge fails.

The payment to Wilson was on a judgment of the Circuit Court against him as garnishee of Worden. Upon this, he should state, also, the time of the judgment and the service of the garnishment.

The payment to Heisland is on the same footing in the proof and principle, as those to Jenkins and Phelps, as is also the payment to Wilson.

I have thus examined and disposed of the several items in dispute on this settlement. The whole account of McCoy amounts to the sum of two thousand, three hundred, sixty seven dollars and seventy one cents, after excluding the items paid to Jenkins, Phelps, Heisland and Wilson.

There is no proof of indebtedness by McCoy to Worden, except what is stated in McCoy’s answers. He states, that Worden presented an account to him amounting in all to the sum of two thousand, four hundred, seven dollars and seventy seven cents, which he admits, except the sum of one hundred, seven dollars and seventy five cents, which he denies. The amount admitted, then, is two thousand, three hundred dollars, and two cents. Deduct this from the amount of his account allowed, leaves a balance due McCoy of sixty seven dollars and sixty nine cents. Finding the balance thus in favor of McCoy, it is unnecessary to examine the remaining question presented in this case.

We are of opinion that the judgment be reversed with costs, and that McCoy, the garnishee be discharged.*

Judgment reversed.

Justices Browne, Catón and Thomas did not sit in this case.

After the delivery of the foregoing Opinion, a motion to remand the cause was made, for the purpose of having an opportunity to contest the truth of the answer of the garnishee, but it was denied. The Court held that the answer should have been contested in the first instance, and could not now be done.

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