Jones v. Hill , 2 Miles 75 ( 1837 )

The opinion of the court was delivered by

Stroud, J.

oN the 12th of September, 1835, Jones issued a foreign attachment against Campbell, upon which the sheriff attached certain boxes and bales of goods, in the hands of Hill, Fish & Abbe, and summoned them as garnishees. The goods appear to have been left by the sheriff in the hands of the garnishees.

Sept. 5, 1836, judgment against the defendant on the attachment was entered, and Sept. 30, 1836, damages assessed by jury of inquiry at $572. Oct. 12, 1836, plaintiff issued a scire facias to the garnishees, Hill, Fish & Abbe, and subsequently filed inter. rogatories which were served upon them, and answers accordingly given, admitting the goods to have been in their hands, but stating that a portion had been taken by the sheriff under certain writs of replevin, and stating that twelve other attachments had been laid on the same goods subsequently to the attachment of Jones.

Oct. 22, 1836, on motion, the court, agreeably to the custom of London, (Serg. on Alt. 19,) ordered the sheriff to open the boxes and bales, which was done accordingly.

January 21, 1837, judgment was entered, on motion, against the garnishees for the goods admitted, in the answers to the inter-gatories, to be in their hands.

Same day, on motion of plaintiff’s counsel, on affidavit filed that the goods were chargeable and perishable, the court ordered them to be sold by the sheriff, and the proceeds to be brought into court. The sheriff made sale accordingly, and has brought the money into court.

Plaintiff has since obtained a rule to show cause why the plaintiff should not take out of court this money paid in by the sheriff, on filing a recognizance with security to restore, &C;

The garnishees having in the interrogatories admitted the goods to be in their hands, and having delivered them to the sheriff by whom they had been sold under the order of the court, pray an allowance may be made to them for their expenses in the-twelve writs of attachments which have been issued against the same defendants, and the three replevin suits against the garnishees for part of the goods attached, and also, in three scire facias which have been issued against them in judgments obtained in that number of foreign attachments ; their claim is stated to be “ a reasonable satisfaction for their attendance in all the twelve suits of attachments, and a sum sufficient to cover their costs and charges, including counsel fees in the replevin suits.”

The plaintiff is willing to allow f20, 75, the amount for freight due on those goods,—the garnishees being common carriers, and having brought the goods from New York, and $20 as counsel fees in this particular suit.

We perceive no warrant for so large an allowance as is claimed by the garnishees—the language of the act of assembly of 1705 is, “ the person in whose hands or possession the same goods or effects are attached, shall be called the garnishee, and shall be obliged to appear in court at the return of the attachment, and answer what shall be objected against him, and abide the judgment of the court, and shall be allowed, out of the effects attached, reasonable satisfaction for his attendanceThis manifestly refers to a particular suit—in this case, to the present suit—which being the first attachment, and the judgment being for a larger amount than the whole fund in court, nothing will remain for the subsequent attaching creditors. From the answers to the interrogatories, there seems to have been no good reason on the part of the garnishees for detaining the goods after the first attachment was laid,—and if they had been delivered to the sheriff then, the probability is, that no other attachment would have been issued.— Certainly none could have been issued, in which the sheriff, as to these goods, ought to have summoned these individuals as garnishees.

The proceedings in this case, have not been in accordance with the usual practice of the court on a similar state of facts. The sale ordered on January 21, 1837, of the goods as chargeable and perishable was unnecessary; for the plaintiff on the same day obtained judgment against the garnishee, and might, immediately afterwards, have issued execution and had the goods regularly sold under this writ of the sheriff. Security to restore if the debt should be disproved within a year and a day from that time, would have been demanded by the express requisition of the act of assembly prior to such sale. The order of sale, having been inadvertently made, and the sale having taken place, security must now be given by the plaintiff before the money can be paid over to him.

Pettit, President, did not sit in this cause, owing to indisposition.

Rule absolute.