Morgan v. Watmough

The opinion of the Court was delivered by Sergeant, J. It cannot now be questioned that partnership, effects are liable to be attached in a suit brought against one of the partners to recover a private debt due by him. That point was deliberately considered by the Supreme Court in M'Carty v. Emlen, (2 Dall. 277,) and was decided by a majority of the Court. The practice has always since been in consonance with this decision, and the reasoning of Chief Justice M'Kean is conclusive as to the justice and propriety of the principle. The only question that remains open for examination is, whether the sheriff is bound to seize the goods when they are capable of seizure, or can only serve the garnishee with a copy of the writ, as is the practice in the case of the attachment of a debt due by the garnishee to the defendant. And we are of opinion that the sheriff is bound to seize the goods in this as in other cases. The act of assembly of the 13th of June, 1836, sec. 48, directs, that “in the case of personal property, the attachment shall be executed as follows, to wit the officer to whom such writ shall b.e directed, shall go to the person in whose hands or possession the defendant’s goods or effects are supposed to be, and then and there declare, in the presence of one or more credible persons of the' neighbourhood, that he attaches the said goods or effectsand by sec. 50, “ the goods or effects of the defendant in the attachment in the hands of the garnishee, shall, after such service, he hound hy such writ, and be in the officer’s power, and if susceptible of seizure or manual occupation, the officer proceed to serve the same to answer and abide the judgment of the Court in that case, unless the person having the possession thereof will give security therefor.” These goods were susceptible of seizure — they were seen by the officer— he was directed by his writ to attach them — and in taking them [128] into his actual possession, until security was given, he did but comply with the positive directions of the act. The cases referred to, in other states, have gone upon their peculiar statutes, which make their process of attachment against absent or absconding debtors to be in nature of an execution: whereas our process of foreign attachment is not in nature of an execution, but is a process to compel an appearance ; and on the answers to interrogatories by the garnishee, and the' evidence in the scire facias against him, the interest of the defendant in the goods may be made to appear, and the execution would then follow accordingly. Judgment for, the defendant non obstante veredicto.