Lee & Hardy v. Palmer ( 1841 )

Garland, J.

delivered the opinion of the court.

We have attentively considered the petition for a re-hearing in this case. It is a repetition of previous arguments urged in the case or complaints as to the inferences that may be drawn from the opinion of the court. The garnishees also offer the affidavit of their clerk to show they have paid over the proceeds of the cotton to Elliott & Worley, who claimed it, because, as is said, they thought those intervenors entitled to them. It is not the practice of this court to receive additional testimony on applications for a re-hearing, but if such were the practice, the affidavit does not much strengthen the petition for a re-hearing. It would • appear from this statement that the garnishees have assumed to act upon their own ideas of what ought to be done by the court', and decided the case in favor of their friends and paid them the money in contest. As their authority to make such a decision-is not admitted, we cannot recognize it. This is not the mode by which a garnishee can be released if he does not wish to keep the thing attached.

The damages t^tha^appellee or one evidently taken for delay, will not be given ciahned^in the t0 the

The garnishees have called our attention to the allowance of ten per cent, as damages, and allege the plaintiffs did not claim them in their answer to the petition of appeal. Upon examination we find such is the fact. In the argument the plaintiff’s . . counsel claimed the damages, and the suggestion of their not being claimed not being made by the counsel for appellants, we took it for granted and did not examine the joinder in error particularly. This oversight will therefore be corrected ; the judgment of this court is therefore amended by disallowing the damages at the rate of ten per cent., and the judgment in all other respects affirmed.