Silverwood v. Bellas

[421] The opinion of the Court was delivered by Sergeant, J. By the provisions of the act of 1705, goods or effects which come to the hands of the garnishee after the attachment is served, are liable upon that attachment. It enacts that if the garnishee plead he had no goods or effects in his hands at the time of the attachment, or at any Lime after, and the plaintiff prove the contrary, the jury shall find for the plaintiff. By the act of 1789, the garnishee may be compelled to answer interrogatories touching the goods and moneys, &c., of the defendant in his possession, or due and owing at the time of the service of such writ of attachment, or at any other time. The rule is the same under the custom of London, from which our acts of assembly were borrowed; this liability beiug limited, however, to the time of the plea pleaded. In Taylor v. Gardner, Serg. on Att. 104, Judge Washington enforced the strict language of the act in a case attended with circumstances which were peculiarly strong in favour of the garnishee. In the present case, the attachment was laid in the hands of the garnishee, prior to April term 1S31; the money came to his hands on the 23d of April 1834, and the fieri facias against the garnishees did not issue till the year 1836. It is clear, therefore, that it falls within the scope of the act of 1705 and its supplements.’ The money which thus came to the defendant’s hands on the 23d of April 1834, was delivered to him by Mr Donnell, under the special trust to deliver it over to Richardson, which he accordingly did. It has been strenuously insisted that, under these circumstances, the money was not liable to attachment in the hands of Silverwood, the garnishee, he being a mere messenger or carrier of the money, and not having any kind of property in it. But we can see nothing that distinguishes this from every other case in which a person has money in his hands belonging to another, or in trust to deliver it over to that person. When once received by Silverwood, it became a debt or duty from him to Richardson, for which a suit would have been maintained by Richardson and the money recovered, were it not that the attachment had been laid in the defendant’s hands, which was a lien upon it, and constituted a legal restraint from paying it over. His doing so afterwards was at his own risk. It is clear that Silverwood, having lawfully received the money, had a qualified property in it while in his hands, such as every bailee, depositary or trustee has. He could in no point of view be considered as a common carrier, even if such carrier has, in this state, any privilege exempting him from liability to foreign attachment under our acts of assembly, which may well be questioned. Judgment affirmed,