Z. F. Westmorland v. William Tippens

Z. F. Westmorland v. William Tippens. Columbia, May, 1830. <?n .the trial of a suggestion falsifying the return of a garnishee in attachment the jury are limited to finding the truth or falsity of the return, upon the allegations contained in the suggestion. The plaintiff cannot recover his debt againsi the garnishee; but upon a verdict in his favor, he is intitled to his reasonable costs, to be awarded by the Court, and he may have the property of the absent debtor, which has been ascertained by the verdict to be in the possession of the garnishee, applied to the payment of the debt, in the same manner as if it had been contained in the original return. Tried before Mr. Justice O’Neall, at Spartanburgh, at an Extra Term, February, 1830. The plaintiff sued out a writ of foreign attachment against Philip Tippens, and served the present defendant with a copy, as garnishee. The defendant returned that he had no goods, chattels, &c. of the absent debtor in his possession; and the plat --i-ff filed a suggestion falsifying the return, upon the allegation, that the defendant had in his possession a slave, to wit, a negro boy natneii Hal, the property of the said Philip Tippens. At the trial of the suggestion, it appeared, that Hal was originally'tbe property of the defendant; but evidence was introduced to establish a. gift by him to the absent debtor, who was his son. The jury found for the plaintiff the amount of his debt; upon which the defendant tniJVed for leave to surrender the boy Hal to the sheriff, in discharge of his liability under the verdict, which motion was refused by the presiding Judge. The defendant gave notice of a motion to set aside the vera diet, on various grounds, which were not urged however in the argument of the appeal. He also renewed in the Court of Appeals his motion for leave to surrender -the boy in discharge of the verdict. Irby, for the motion. The only case in which the attachment act provides, that the garnishee shall be liable for the debt, is where he refuses to' make a return; and the reason of his liability is obvious: there is no ground for any other inference,'than that he has property of the absent debtor in his hands, more than sufficient to pay the debt. But this inference does not arise, where a return is made, and the reason therefore cjoes not apply; and' hence if the return is contested, and an issue is made up, and found against the garnishee, the act merely provides that he shall be liable for costs. The only question which the jury are to try, under the issue directed by the a<‘t, is whether the return is true, or false; no authority is given them to assess damages. P. L. 188, It was not intended, either to prohibit the garnishee’s urging a claim of his own, or to punish him for refusing to throw a doubt upon his title to that, which he may honestly regard as his own property. And yet that is the construction, if this motion does not prevail. A. W. Thomson, contra. The argument for the motion amounts to this; that a garnishee shall be put upon a better footing if he make a false return, than if he make no return at all. It is conceded, that if be make n6 return, he renders him* self liable to the whole debt; but yet it is urged, that if he do worse, and make a false return, and commit perjury by swearing to it, he is so much favored, that he shall only be liable to the extent that the falsity is detected. This certainly is not .the true construction of the act. A false return is no return,- and the. garnishee is liable for the debt, as if he had made none¿ The provision, that he shall also be liable for the costs of the issue, was not intended to exempt him from any other liability. [MAJORITY — Evans, J.] Evans, J. delivered the opinion of the Court. This Court is satisfied with the charge of the Judge, and the finding of the jury as to the title to the slave; but it is conceived. that the jury had no right to subject the defendant to the pay» meut of the plaintiff’s demand against the absent debtor. By the attachment act, if the garnishee lay claim to the property by his return, or deny that he hath any goods, chattels, &c. belonging to the absent debtor, and the plaintiff shall not rest satisfied with the same, then the matter shall be tried by a jury, “and the party that shall be cast in the same shall pay to the prevailing party such reasonable costs as shall be allowed and taxed by the Court.” P. L. 188. The Legislature by this act provides only to try the question of title, and certainly could not intend to subject the garnishee to the payment of a large debt, because he disputed the title of the absent debtor to an article of small value. So much of this verdict as finds for the plaintiff any thing more than the truth of the issue, is erroneous, and must be rejected as surplusage. The effect of the verdict is, that the defendant has in his is-session the negro boy Hal, belonging to the absent debtor; and the parties are now in the same situation, as if the defendant had so admitted in his return; On filing his declaration and giving security, the plaintiff may have the negro delivered to him ; and on application he will be intitled to an order of Court for the sale of the slave. Colcock, J. and Johnson, J. concurred.