Devries v. Buchanan , 10 Md. 210 ( 1856 )

Tuck, J.,

delivered the opinion of this court.

In the progress of this cause, the plaintiffs, after the garnishee had pleaded nulla bona, filed the following interrogatory to be answered by him. “Did you or did you not from time to time receive money, the proceeds of goods which -were in the store of H. G. Buchanan on or near Wills Creek, and did you or did you not receive from time to time, other moneys or effects of said H. G. Buchanan? If yea, state the several amounts received, the persons from whom received, and the time when received.” To this interrogatory the garnishee, protesting that he was not bound by law to answer'further, or in any other manuer, said that he had not, at the time of the service of the attachment, nor at any time since, nor has he now in his hands or possession or under his control or charge, any goods, chattels, moneys, credits or property, of H. G. Buchanan, nor was he at the time of the service of the writ, or at any time since, nor is he now in any manner, indebted to him in any sum of money whatever. This was accompanied by an offer to answer further, if required by the court. The plaintiffs excepted to the sufficiency of the answer, as not responsive to the interrogatory, which being overruled by the court, and the judgment rendered against them, the plaintiffs appealed.

The object of placing the interrogatory in this form, as we were informed at the argument, was to obtain a discovery as to property and money supposed to have been received by the garnishee, before the service of the attachment: and the appellants’ counsel contended, that where a garnishee in his answer admits having received property of the debtor, at any time before service of tlfe writ, he cannot, in the answer, discharge himself from the effect of the process, by stating how he has parted with the property, and thus enable himself to say that he had none such at the. time of making the answer.

The act of 1795, ch. 56, sec. 5, authorizes the plaintiffs to exhibit interrogatories to the garnishee, who shall answer each, and every thereof, “touching or concerning the property of the defendant in his possession or charge, or by him due or owing at the time of serving such writ of attachment, or at any other time;” and ifhe shall neglect or refuse so to do judgment may be entered against him. Upon this clause the point in argument was, whether the words, “or at any other time,” related, to property obtained by the garnishee, before as well as after the service of the writ. It has been the practice to condemn property or credits in the garnishee’s hands at the time of the trial, (7 Md. Rep., 296,) although the replication to the plea of nulla bona, confines the issue to the time of the service of the pro-, cess, (2 Ev. Har., 165,) and this is the practice in England,, whence our attachment law appears to have been taken. Locke on Attachment, 68; 83, (79 Law Lib. Davidson vs. Beatty, 3 H. & McH., 609. It is clear that the garnishee cannot be held liable for that which he had, but parted with before the commencement of the proceedings, if he has done so in good faith. But he may not be in actual possession, and yet be clothed with' the legal right; and, as points of law may arise out of the circumstances attending his possession and disposal of the property, it may be necessary to a correct understanding of the subject, that these should be exposed, and the question here, is whether the garnishee can be called on to disclose them. It cannot be denied, that the plaintiff may by other means,‘show that the garnishee had effects of the defendant, or was indebted to him before the writ issued, and leave him to discharge himself as he may be able. Indeed there may be, in most cases, no other mode of proving property in his hands at that time. That certainly would be an inquiry “touching or concerning the property of the defendant,” in the garnishee’s hands at a time not embraced by the words of the act, as they are interpreted by the appellee’s counsel. And so he might call witnesses to prove such possession or indebtedness after the issuing of the writ, without resorting to the garnishee’s oath. The interrogatory and answer do not, of themselves, determine the liability of the party. Their object is to enable the plaintiff to use the garnishee as a witness; and the words “at any other time,” indicate the scope of the inquiry, for the purpose of ascertaining whether the property or effects in controversy, be liable under the process at the time of the trial. The proceeding in this respect, is in analogy to, and serves the office of, a bill of discovery, which; it is said, “is much resorted to, and found beneficial in discovering property in the hands of the garnishee, and the circumstances attending the dealings between the garnishee and defendant.” Locke on Atta., 16, note (d.) There is no injustice in this. The garnishee stands between the original parties to the suit. If he owes the defendant, the law declares that the property or debt may be condemned to the use of the plaintiff; only changing the party to whom he will have the debt to pay. If his dealings with the defendant have been fairly and properly conducted, he should not object to giving-the information, in view of the conditions on which alone the answer can be used against him.

But in reversingthe judgment below, for the reason that the court did not require the interrogatory to be answered, we are pot to be understood as concurring with the counsel for the appellants, in his view of the uses to be made of the garnishee’s answer. He relies upon the doctrine that, “where a complainant seeks a discovery and relief, and to make out his case, applies himself to the conscience of the defendant, if in his answer, the liability is once admitted, there can be no escape from it but by proof,” Ringgold’s Case, 1 H. & G., 82. This is the established rule in equity. But a distinction is to be observed between evidence and pleadings. At Jaw, as well as in equity, where the plea admits the matter in demand, but avoids it by other circumstances, the proof of the avoidance is on the defendant. Hart vs. Ten Eyck, 2 Johns. Ch. Rep., 62, recognized in 1 H. & G., 81. As we have said, the proceedings by interrogatory and answer, in cases of attachment, are iii the nature of a discovery. The answer to such a-bill; is read as evidence arid not as part of the pleadings: The party calling for the discovery need not rely upon the answer, but if it be used at all the principles of evidence must apply. T'he Subject is fully discussed in 2 Ev. Pothier, 136; 137, 138. After stating the effect of an answer, as part of the pleadings in the same cause; he says, (page 137,) “Bul where an answer is adduced as evidence in a court of law, no part of it iS immediately in issue, neither does it form any direct proceeding in the cause. It is only one amongst other medid for the investigation of truth. And if one side introduces it at all, the cither may insist .upon the whole being read, in order that a judgment may be formed upon its entire credit and effect. But, though the whole must be read, it does not necessarily follow that it must be wholly admitted as true, or wholly rejected as false; the,credit and effect of any part of it is to b,e considered by the jury, according to the general impression of their minds, derived from the general consistency of the answer in itself, or the light Which may be thrown upon it by other evidence.” And in Lawrence vs. Ocean Ins. Co., 11 Johns., 269, it is said to be “an invariable rule, that, where an answer is given in evidence in a Court of law, the party is entitled to have the Whole of his answer read. It is to be received as primd facie evidence of the facts stated in it; open however to be rebutted by the opposite party.” Sowerwein vs. Jones, 7 G. & J., 335. See also 1 Stark. Ev., 335, (Ed. of 1842.) Hoffman vs. Smith, 1 Caines' Rep., 160, note (b) Norris' Peake, 86. 2 Johns. Ch. Rep., 62. Reo vs. Ferrars, 2 Bos. & Pul., 548, note.

In attachment cases, the issue is not as to the truth of the answer, but on the replication to the plea of nulla bond, and when the answer is called for and relied on b’y the plaintiff) it Would be a harsh construction of the law to deny to the garnishee, between whom and the plaintiff there is no privity of Contract, less benefit from the answer than the plaintiff’s own debtor, the defendant, might claim from his answer, if a discovery were sought of him, to be used as evidence for the plaintiff. We perceive no reason why the same principles of evidence should not govern both cases.

Judgment reversed and procedendo awarded.