Rice & Burnett v. Whitney ( 1861 )

By the Court.

Held: 1. That the plaintiff in attachment ■ought not to be allowed a more summary or speedy remedy against the debtors of the defendant in attachment, than their own creditor, was the principle upon which the provisions in the code relating to attachments were framed. This principle appears to have been departed from in an amendment cf section 200 of the code, made 17th March, 1856, which allows an execution as upon a judgment, where a garnishee, after-examination, is ordered to pay money into court. But this amendment does not apply to proceedings before a justice of the peace.

2. A garnishee is required to appear and submit to an ex-animation, and if the justice comes to the conclusion that the-statements made by the garnishee amount to an admission of indebtedness, he may order the sum admitted to be due to be paid into court. But the only mode by which such an order can be enforced, is by an action against the garnishee. The examination and the order thereupon were not intended as a summary remedy for the collection of the debt, but to put the plaintiff in attachment in a position to enforce the claim of the defendant in attachment against the garnishee, in the ordinary mode — by action. The action would be a useless and expensive form if the garnishee had been already concluded by' the order. Unless the statements of a garnishee could be made in all cases with a clear understanding of his rights and liabilities, and in such a manner as to be neither innocently misstated nor misunderstood, it would be unjust - to give to those statements a conclusive effect and admit no explanation. It would be the more unjust as the garnishee is called upon in a proceeding in which he has no interest for the benefit of a stranger, and no provision is made for accuracy in reducing that statement to writing, or to secure the- garnishee the right to contest the construction which the justice may put upon it, and the inference he may draw that an indebtedness is admitted.

Judgment of the district court affirmed.