Mackey v. Hodgson

Rogers, J. It is a general rule that a garnishee in a foreign attachment is not liable for interest pending the attachment. The exceptions to the rule are fraud or collusion of the [470] garnishee, or any unreasonable delay caused by his conduct. And the general rule prevails, whatever may be the event, as it is impossible for him to predict the issue of the attachment suit. Let a foreign attachment be determined which way it may, the garnishee is excused from paying interest in the mean time: Serg. on Att. 115, 169; Fitzgerald v. Caldwell, 2 Dall. 215; 1 Y. 280. He is brought into court by compulsion, and should not suffer for doing what the law enjoins. If the defendant in the attachment has any remedy, it is against the plaintiff in the foreign attachment; for the debtor is not bound to pay at the peril of being again compelled to discharge the same debt. The application of these well settled principles renders unnecessary nearly all the evidence introduced on the trial, which was worse than useless, as it served to perplex the jury by directing their attention to an immaterial issue. Of what consequence was it whether Mary or David Mackey was the owner of the debt ? It was enough for the defendant that he was prevented from paying the debt by the pendency of the attachment, and that he acted in good faith. That he had any agency in procuring the attachment is not pretended, nor is it alleged he acted in bad faith. As this case goes down for another trial, it may be useful to observe that we fully concur in the decision of the case of Sickman v. Lapsley, 13 S. & R. 224, that where a foreign attachment is laid for a smaller sum than is in the hands of the garnishee, he is not justified in withholding from his creditor more than sufficient to cover the debt claimed in the foreign attachment. Here, the writ commands the sheriff to attach David Mackey to answer M. Sherer of a plea, that he render unto her f!1,000, which unto her he owes. That was the limit of his demand; there was therefore nothing to prevent him from paying the residue of the debt, and, consequently, on that amount he is justly chargeable with interest. But the court instructed the jury that he was not only exempt from the payment of interest, but that the defendant was entitled to a reasonable allowance for his lost time and expenses in attending to the attachment suit. And this direction was right under the act of 1105, § 2, which enacts that he should be allowed out of the goods attached reasonable satisfaction for his attendance. But this provision we think is altered by § 45 of the act of 16th June, 1836, relating to the commencement of actions. It is difficult to resist the conviction that the latter act was intended to supersede, in this particular, the 2d section of the former act. The two sections are substantially the same, with the exception of the clause allowing [471] expenses for attending to the attachment. That it was designedly done, does not admit of question. And for what purpose, except repeal, we cannot imagine. It is perhaps useless to speculate as to the reason of this remarkable omission, and yet it is not difficult to assign one. The legislature may have supposed it was impolitic to throw an additional temptation in the way of the debtor, inducing him to collude with the plaintiff in the attachment, thereby affording him a pretence for non-payment of his debt, or retaining other-effects in his hands. • ■ Judgment reversed, and a venire de novo awarded.