Crawford v. Barry

T ilghman C. J. This case comes before us on a motion by the defendant for a new trial. The defendant is garnishee in a foreign attachment against Thomas CTGormond. The plaintiff having established his cause of action against O'-Gormond, by a writ of inquiry of damages, issued a scire facias against the defendant, who appeared and pleaded nulla bona, upon which issue was joined. The jury found that the defendant had goods of CPGormond in his hands to the value of eight hundred [484] and one dollars and thirty cents, but did not say what these SO^s were. The defendant, m support or his motion for a new trial, has urged several reasons; but the principal one is this, that the jury have greatly overvalued the goods, and by not finding what they were, have deprived him of the benefit, which the law allows him, of delivering them up to the plaintiff, instead of paying the estimated value. He has offered to deliver to the plaintiff all the goods in his possession; but the plaintiff declines to receive them, and insists on having the amount of the jury’s valuation in money. It does not appear that this point has ever been brought before the court. It is probable, that in most cases the garnishee has either given up the goods without contest, or a debt due from the garnishee has been attached; in which case there would be no goods to give up. The court must now decide the construction of the attachment act, which was made so long ago as the year 1705. By the second section of this act, (1 St. Laws 60.) it is enacted, that “ if an attachment shall “ be made of goods or effects, and the garnishee plead he had “ no goods or effects in his hands at the time of the attach- “ ment, or any time after, and the plaintiff prove the contrary, “ the jury in such case, being satisfied that the proof is plain “ and full, shall find for the plaintiff, and say what goods or “ effects they find in the garnishee's hands; whereupon judgment shall be entered that appraisement may be made of “ the same goods or effects so found by the jury, and a pre- “ cept shall be granted, requiring the sheriff to get the same “ appraised; and if the garnishee will not produce them, then “ execution shall be forthwith awarded for the value thereof “ according to the appraisement, to be levied upon the lands “ and tenements, goods and chattels of the garnishee.” By the fourth section it is provided that after judgment obtained by the plaintiff, he shall, before sale and after execution is awarded, find security that if the defendant in the attachment shall within a year and a day come into court, and disprove the debt recovered by the plaintiff against him, or discharge the same with costs, that then the plaintiff shall restore the said goods or the value thereof. It seems extremely clear that the object of this law was to procure for the plaintiff, satisfaction of his debt out of the [485] goods of the defendant; and that the garnishee was not to be liable, unless he refused to produce those goods after it had been found by verdict that they were the property of the defendant. The jury are expressly directed to say what goods or effects they find in the garnishee’s hands, in order that an appraisement may be made of them. It seems to have been the practice for the jury to value or appraise the goods; and to this I see no objection, although not strictly conformable to the act, because it saves tire expense of a writ of appraisement. But there is no authority for the jury, by any mode of finding, to take from the garnishee the right of surrendering the goods ■and discharging himself from the obligation of paying the value. There is not one word in the act, which looks like an intent to charge the garnishee if he offers to produce the goods. The plaintiff’s counsel have argued that it is extremely difficult to prove exactly what the goods are. This is very true; and to assist the plaintiff in that respect, it is provided by the act of 28th September 1789, (2 St. Laws 733) that interrogatories may be administered to the garnishee, which he shall answer on oath. It is objected that the plaintiff may have no confidence in his oath. To this I can only say, that if the plaintiff will go to trial, without taking the examination of the garnishee, and without satisfactory evidence to prove that the goods in his hands are the property of the defendant, and to shew what the goods are, he has no right to expect a verdict in his favour; because he affords the jury no sufficient ground to discharge the duty required of them by law. If the plaintiff will accept the goods offered by the garnishee, there will be no occasion for another trial. If he will not, I am of opinion that there should be a new trial to supply the defect of this verdict. Yeates J., Smith J., and BrackSnridge J. concurred,. New trial nisi.