Tavel v. Barre ( 1822 )

Mr. Justice Richardson

delivered the opinion of the court:

The act requires the garnishee to return whatever may be in his “ possession or power ” belonging to the absent debtor. The declaration offered to' the clerk, consisted ófthe usual count, &e. stating the total default of the gafnishee, and praying judgment against him. Such a proceeding could have no application to this case. If the return of Middleton wanted the word “power,” either the filing should have been opposed or upon the insufficiency, a rule taken to shew cause why he should not amend the return. Or if it Was intended to charge him with having the wine within his power, a suggestion on oath, specifying the articles, arid charging him with a false return, and requiring his further return, as it regards them, might have led to t.he proper issue j to be shaped according to the particular occasion and state of facts, as they eventually should appear. But the declaration, as it is called, is predicated upon the supposition of a total default in the. garnishee, which default does not appear by the mere omission of the word “ power,” The return possibly may be voidable, but certainly it is not void.

SfiPgent, for the motions

The motion isi! therefore dismissed.

Justices Colcock and Johnson, concurred.