Caldwell v. Coates

Judgment was entered in the Supreme Court, January 18th 1875, Per Curiam. Clearly the burden of proof under the plea of nulla bona is on the plaintiff to show what goods, credits or moneys are in the hands of the garnishee to answer his attachment. The 58th section of the Act of 13th June 1836 makes it the duty of the jury to find what goods or effects, if any, were in the hands of the garnishee, and also the value thereof. A liability to render an account is a very different thing from a liability for the payment of money. On the settlement of the account it may turn out that nothing is due or coming to the plaintiff. The case before us exhibited only a liability to render an account. There was no evidence of an actual settlement, or a statement of an amount, or of a balance due or owing by- the [316] garnishees. It is true that a large amount of property was shown to have gone into their hands, much greater than sufficient to pay the plaintiff’s claim. But the evidence also shows that this property went rightfully into their hands upon certain terms of agreement which gave the garnishees a right to retain the property and its avails until their claims and those of others were paid. In the performance of the duties enjoined by these agreements large expenses and outlays were to be necessarily incurred, and therefore the value of the property and the amounts of the claims it was taken to pay could not alone solve the question of balance. A settlement of an account was essential to determine the question whether any balance remained in the hands of the garnishees. Clearly it was the duty of the plaintiff to make out a case of indebtedness at least sufficient to enable him to recover in an action of assumpsit. Judgment affirmed.