
    
      Levi Sherman vs. Judah Barrett, absent debtor. The same vs. Jacob Cohen, garnishee.
    
    Where a suggestion, contesting a garnishee’s return, alleged in substance, 1. That the garnishee had, at the suing out the attachment, certain slaves belonging to. absent debtor — 2. That the absent debtor had fraudulently conveyed the slaves to the garnishee, and the verdict found that the absent debtor had fraudulently conveyed the slaves to the garnishee; that their aggregate value was $5,-700, and that the garnishee had, before the lodgment of the writ of attachment, sold the slaves for that sum — Held, that the verdict sufficiently falsified the return of the garnishee, and that the plaintiff was entitled to process to compel him to pay the value of the slaves towards the satisfaction of the plaintiff’s judgment against the absent debtor.
    Where a suggestion is filed charging a garnishee’s return to be false, if the jury find specific chattels in the hands of the garnishee to belong to the absent debtor, they should also find the respective value thereof, so that if the property be not delivered, or cannot be found, the creditor may have process (as by rule and attachment) for the value against the garnishee.
    
      Before Butler, J. at Richland, Fall Term, 1844.
    This was a rule on Jacob Cohen, the garnishee, to shew cause why he should not be ordered to pay into court, to satisfy the plaintiff’s judgment, certain sums of money, amounting in the aggregate to the sum of $5700, with interest thereon, which the plaintiff alleged had been found, by the verdict of a jury, to be in his possession, and to belong to Judah Barrett, the. absent debtor. For the facts of the case, reference must be had to the case of Cohen ads. Sherman, 2 Speers, 529. In answer to the rule, the garnishee made a return under oath, as follows :
    “ 1. That an order for payment of money into court, is never made, except where it is admitted or distinctly proved, that the money is actually in the hands, or possession, or within the power or control, of the party ordered to pay it into court; and that the verdict on which the present rule is founded, does not allege that the sums of money aforesaid, or any, or either of them, were in the hands or possession, or within the power or control, of this respondent, at the time of the attachment levied, or at any time after; nor was any question as to such moneys being-in his hands, at any time put in issue by the suggestion and the pleadings thereto, upon which the said verdict was rendered. Wherefore, it is respectfully submitted that the said verdict can be no warrant for the order now moved for.
    “ 2. That in point of fact, this respondent had paid the whole of the said moneys to the said Judah Barrett, long before he was served with a copy of the writ, of attachment against the said Judah Barrett, and long before the said writ was issued ; a fact which is neither directly or indirectly negatived by the said verdict, and which destroys every shadow of ground .for the order demanded by the plaintiff.
    “ 3. That so much of the said verdict as relates to the sums of money aforesaid, is wholly foreign to any issue made by the proceedings in which it was rendered ; the only issue presented by the suggestion to which this part of the verdict has the remotest reference, being, whether this respondent was, at the time of the attachment levied, in possession of certain slaves belonging to the absent debtor, Judah Barrett; and a verdict, therefore, that the said Judah Barrett had fraudulently conveyed the said slaves to this respondent, and that this respondent had sold them, before the attachment levied, for the sums of money aforesaid, is either no answer to the issue, or negatives the allegation of the suggestion ; and, at best, is a mere nullity, and can furnish no ground for any proceedings against this respondent. And it is respectfully submitted, that even supposing any proceedings against him are warranted by the attachment Acts, under the facts stated in the verdict, if legally ascertained — and this respondent submits that the said Acts do not authorize any such proceedings— yet this respondent has the right to have the question as to these facts tried by a jury, upon an allegation distinctly made, and an issue directly joined thereon ; and that he .cannot be lawfully condemned by a verdict finding facts not alleged or put in issue by the pleadings, and actually negativing the only allegation put in issue.
    “ 4. That the order prayed for, has not the slightest foundation in any of the provisions of the attachment Acts, but is contrary to the whole spirit and intent of those acts, and the entire current of judicial decisions upon their construction ; and even if the said Acts provide a remedy for the plaintiff, in the state of facts set forth in the verdict, that remedy is not by a suggestion falsifying the return of the garnishee, stating that he has no effects of the absent debtor in his hands ; and, least of all, by a short handed order, upon a suggestion in which the facts on which the order is grounded, are not alleged, or in any way put in issue.
    
      “ 5. That the plaintiff’s remedy, supposing the facts stated in the verdict to be true, is, in fact, in equity ; and the plaintiff has accordingly exhibited his bill against this defendant, in the Honorable the Court of Equity, for relief in the premises, in which bill the same matters are put in issue, and the same relief prayed, as constitutes' the grounds of the present motion; and that after a full and solemn hearing, it has been adjudged and decreed by the said court, that the facts alleged in the said verdict are not true, and that the plaintiff is not entitled to the relief prayed for ; which said decree is, as to this matter, unreversed. Wherefore, it is respectfully submitted, that whatever may have been the complainant’s remedy at law previously, he is now concluded by the judgment of the tribunal to which he thought fit to refer his rights ; and that this court will not undertake to review or reverse or supersede the judgment of the Court of Equity, upon a question of facts directly and distinctly put in issue before it, and submitted to its decision by the party who now seeks to render it a nullity.
    “ 6. That the order prayed for, is not only without warrant from the attachment Acts, and would amount to a reversal of the judgment of the Court of Equity, but is in other respects contrary to law and equity, and a violation of the principles of the constitution, and our entire system of jurisprudence and legislation. Wherefore this respondent humbly hopes that the said rule may be discharged with costs.”
    The presiding judge granted the following order.
    “ Upon hearing the return of the garnishee, it is ordered, upon motion of Gregg & Gregg, attorneys, that the rule against Jacob Cohen, the garnishee, to shew cause, be made absolute; and' that he pay into the hands of the clerk of the Court of Common Pleas for Richland district, the sum of five thousand seven hundred dollars, with interest thereon from the twenty-ninth day of February, 1840, to be applied towards the satisfaction of the judgment first above-mentioned ; and it is further ordered, that the enforcement of the order be suspended until the defendant shall have an opportunity of obtaining the decision of the Appeal Court upon the subject.”
    From this order the garnishee appealed, and now moved that the same may be reversed, as contrary to law, for the several reasons set forth in his answer to the rule.
    Bailey, Attorney General, cj- Tradewell, for the motion,
    cited 1 Bail. 605 ; 1 Ch. PI. 631 ; 1 Hill, 53 ; Bac. Ab. verdict, K. N. O. Gt. R.
    
      Gregg & Desaussure, contra,
    cited 2 Hill, 474; 1 M‘M. 452; Serg. on Att. 91; 1 Bail. 358, 546, 516.
   Curia, per

O’Neall, J.

In this case, the defendant was served with a copy of the writ of attachment, issued by the plaintiff against Judah Barrett, requiring him to appear at its return, and to state on oath what moneys, goods, chattels, debts, books of account, lands, leasehold estates and chattels real, of the absent debtor, were in his hands, power or possession. He accordingly made a return, denying that he had any (except in particulars not necessary to be noticed.) The plaintiff filed a suggestion, charging the said return to be “false,” and presented fifteen specifications against it. The first alleged that he had, at the suing out the attachment, 16 slaves belonging to the absent debtor. The 3d, 5th, 7th, 10th, 11th, 13th and 14th, make in substance the charge, that the 16 slaves were fraudulently conveyed by Judah Barrett to Jacob Cohen ; and of these, as well as the 1st, there was a general traverse and issue joined. The verdict of the jury found that fifteen slaves, who are named therein, were fraudulently conveyed by Judah Barrett to Jacob Cohen ; that they were, before the lodgment of the writ of attachment, sold by the said Jacob for the sums which the jury in their verdict assessed as the value of the slaves, making an aggregate of $5700.

The question now presented is, whether this verdict can be enforced. The Act of the legislature (Act of 1744, sec. 1, 3 Stat. 618) inter alia provides, that if the garnishee should deny on oath, that he hath any moneys, goods, chattels, debts or books of account, belonging to the absent debtor,” and the creditor is not satisfied therewith, that then the garnishee shall be put to plead the same, and the matter shall be tried by a jury forthwith. In Martin vs. Parham, 1 Hill, 213, this provision received the consideration of the court, and it was held that the creditor’s dissatisfaction with the garnishee’s return, was properly expressed by a suggestion disputing its correctness ; upon which, an issue in law or fact may be made up and tried as other issues. In Smith vs. Posey, 2 Hill, 475, it is said, “ the only issue is, whether such return is true.” In the case in hand, the broad allegation was that the return was false, and the particulars set out were specifications of that charge. The finding of the jury in substance is that the return is false, inasmuch as Barrett had fraudulently conveyed to the garnishee the 15 slaves, and that he had sold them. To have justified the verdict, the jury must have been satisfied that in law the slaves were liable to pay the debt of the plaintiff. For if not, they could not have found the conveyance to be fraudulent. If the rights of creditors had not intervened, Barrett could have done what he pleased with his own. But when he was in debt, he could not convey, for a pretended consideration, or voluntarily, his property. The jury have, on the issue made, found that he did so convey, which made the property in the hands of the garnishee liable ; but that he had conveyed it away for the sum of $5700, before the' lodgment of the attachment. This sum, the proceeds of that which inlaw was liable to the plaintiff’s debt, is to be regarded as in his hands at that time, in place of the property ; and being so, it as much falsifies his return, as if the jury had found he had the slaves. To this, it will not do for the garnishee now to say, true, the slaves were fraudulently conveyed to me, and I sold them; but I paid over the proceeds to Judah Barrett before the attachment issued. If that fact had been so, it should have been pleaded to the suggestion or proved on the trial of the issue. Not being so done, the garnishee cannot now set up such a pretence. In Wilbourne vs. Whitlow, 7 MSS. decis. 531, Columbia, the court held that the service of an attachment on any of the goods of the debtor in the hands of the garnishee, made all in his hands liable. So that here the attachment being well levied on other property, the proceeds of the sale of the negroes were also well attached.

The jury, on finding that the slaves had been fraudulently conveyed, and that the garnishee had sold them before the lodgment of the writ of attachment, did right to find the value of the slaves. In Wilbourne vs. Stead & Whitlow, 7 MSS. decis. Columbia, 416, it was held that the specific chattels in the hands of the garnishee, and the respective value thereof, should be found. “So that if the property be not delivered, or cannot be found, the creditor may have execution for the value against the garnishee.” Here the garnishee put it out of his power to deliver the chattels, by selling them; hence, therefore, he is liable for the proceeds, and the creditor must have, in some way, execution against him, as by attachment for not obeying the order to pay the money into court, (if it should be disobeyed.)

The motion to reverse the decision of the judge below, is dismissed.

Richardson-, Evans, Butler and Frost, JJ. concurred.

Wardlaw, J.

dissenting. The verdict upon an issue contesting a return of a garnishee, should ascertain precisely, by its own statements or by reference to something certain, the thing to be delivered, if specific delivery is to be enforced, or the sum to be paid, if payment is to be coerced. Whether in practice a judgment ought to be entered up on it, or whether it ought to be subjoined to the return, or whether, without any further entry, the powers of the court to give it effect should be invoked, are questions now of no consequence.

Whatever course maybe taken, it is plain that an order for payment of money into court, or for delivery of a specific chattel, is in its nature an execution, and should be founded upon a liability of the garnishee, which, by his own confession in his return, or by a finding against him, has been established with the same certainty that pertains to every judgment which an ordinary execution enforces.

Here the suggestion charges, that the garnishee had in his hands negroes of the absent debtor, at the time the attachment was served; the verdict finds, that before the attachment was lodged, the garnishee had sold negroes of the absent debtor, at certain prices. This verdict is no answer to the issue. It is said the issue in such a case presents only the inquiry, whether the return is true or not. If the court ever intended that an issue so general and indefinite should be presented, why has it required the plaintiff to file a suggestion? Would it be permitted for a plaintiff to say in a suggestion, merely, that the return is not true, and put himself upon the country; thus giving the garnishee no notice of the falsehood complained of, and, contrary to the ordinary fairness and certainty of the law, coming to trial upon matters unknown, until they are disclosed ore terms at the trial ? If any specification is required — indeed, whether it is required or not — surely the plaintiff should be bound by a specification which he has made, and not be permitted to mislead the garnishee, by alleging one thing and proving another.

It is to be remembered, that the garnishee is answerable for any thing belonging to the absent debtor, which was in his hands at the time of the attachment served, or which came to his hands afterwards and before the filing of his return. 2 Hill, 475. Here was a considerable space of time, to which the plaintiff might have directed his investigations and charges. He had the fullest privilege of ringing the changes in his specifications, so as to hit the form which the debtor’s property in the garnishee’s hands at some moment in this time presented ; and therefore he was entitled to no special indulgence in departing from his allegations.

But waiving all objection of the suggestion, suppose it to have been alleged that the gaanishee had money — does this verdict establish that allegation in such way that payment may be coerced ? A verdict must be express and certain. See Bac. Ab. verdict R. Com. Dig. Pleader, S. 19, 34. If the allegation had been correctly made, it would have charged a debt owing to the absent debtor, or money of his in hand, at some time between the- service of the writ and the filing of the return. A correct verdict would by general words have found the specification containing the charge to be true, or would have, in special form, found the debt or the sum of money during the required time. This verdict finds, that negroes were fraudulently conveyed by the absent debtor to the garnishee, and that the garnishee before the lodgment of the writ of attachment had sold the negroes for certain sums of money. If no time had been mentioned in the verdict, it might have been held that the verdict should be referred to the suggestion, and the suggestion being also found indefinite as to time, then that the verdict should be referred to the law, so as to make the sale relate to some period within the range of the garnishee’s liability. But the verdict itself precludes the possibility of such reference, by finding that the sale was before the lodgment of the writ. It negatives all time subsequent, but gives no exactness as to time preceding; and it can derive no aid from any of the numerous specifications in the suggestion, which allege the time of the service, but no other time. For aught that appears, the fraudulent conveyance and sale of the negroes may have been ten years before the lodgment of the attachment writ. It seems to me, then, that this verdict does not establish a certain sum belonging to the absent debtor, in the hands of the garnishee at the service of the writ, or at any time between the service and the filing of his return.

Even admitting that sale for a sum certain necessarily implies the receipt of the money, (which may be well doubted,) the sum may have been received and paid over, or it may have been received in a bag and lost without fault. Will it be said that these are matters of defence to be alleged and proved by the garnishee ? There is neither allegation nor proof after a verdict. Maintaining that no sufficient verdict has been found, the garnishee, in answer to the rule served upon him, has alleged such matters, but he has not even been called upon for proof.

A verdict should establish the conclusion of fact with certainty, not admitting of reasonable doubt. Oportit quod res certa in judicium possit deduci. It has been insisted that the verdict is made sufficient, by the presumption that holds until contrary proof be made, that he who had another’s money has it still. But that is a presumption of fact. When is the proof to the contrary to be heard ? A presumption of fact, a natural presumption, is matter of evidence, not matter of law. An artificial presumption of mere law, cannot be rebutted. Even presumptions of law and fact, such as the presumption in trover, of aeon-version from demand and refusal proved, must be made by the jury and not by the court; much more presumptions of mere fact, such as that here relied on. 3 Stark Ev. 1241, et. seq. A jury must find facts, not evidence. There is no settled principle or fixed rule which enables the court of itself, without the finding of the jury, to reach the conclusion, that this money was in the hands of the garnishee at or after the attachment, from the premises established that it was there at some previous time. Because the jury failed to draw the conclusion which must be attained, their doubts might be argued, but no power in the court to assume their province by making a presumption of fact, can thence arise.

There seems to me to have been throughout the pleadings and argument of this case, on the part of the plaintiff, some vague notion concerning the importance of the fraudulent conveyances, which have in various specifications been alleged as matters in and of themselves material, independent of all result that has ensued from them ; and which, being found by the jury, it is supposed will be greatly influential in inducing the court to exercise its powers. But the business of the court is to give effect to a verdict establishing what the garnishee has in his hands of the goods, moneys, <fec. of the absent debtor, at or after the attachment. The business of the jury was to inquire what the garnishee so had in his hands. The purpose of the suggestion should have been to shew what he so had. The fraud was then material only in a collateral way, as evidence to shew that a title set up to certain goods, (fee. by the garnishee, was, as to creditors, void. In the true issue to be tried, negroes fraudulently conveyed were the same as negroes held under deposit. The fraud of itself would not have entitled the plaintiff to a verdict, and is of no avail on this motion. If the absent debtor and the garnishee had, in the most fraudulent and iniquitous manner, combined to destroy or remove the goods of the absent debtor before the attachment, no recovery, in a proceeding like this, could be had against the garnishee, unless there had accrued from the fraudulent conduct of the parties, at or after the attachment, some debt from the garnish ee to the absent debtor, or some property of the absent debtor, in the hands of the garnishee. If any such result of the fraud had accrued, that result was the subject to be ascertained, and the fraud was only inducement and evidence.

I am, therefore, of opinion, that the verdict is no answer either to the specifications which have been made, or to the issue which should have been presented ; and that the verdict is not sufficiently certain and express to authorize the action of the court. I think that the motion for an order to pay the money into court, should have been refused, and a repleader and venire facias de novo ordered. 
      
      
         Appeal Court, July Term, 1836.
      
        Elijah Wilbourne, assignee, vs. Thos. S. Stead, an absent debtor, and James M. Whitlow, the garnishee.
      
      
        Curia, per O’Neall, J. On the 4th ground of tbe motion, (because the verdict of the jury was informal and void,) we think a new trial must be granted; and it is, hence, unnecessary to examine any of the other grounds.
      The verdict upon the issue between the attaching creditor and the garnishee was either for the plaintiff generally, or for a sum of money in his favor. Either was an erroneous finding. The Act of 1744, P. L. 188, directs that if the garnishee shall claim the goods attached, and deny the same to belong to the absent debtor, and the plaintiff shall not be satisfied with his claim or his denial, then the garnishee “ shall be put to plead the same, and the matter shall be tried by a jury forthwith, or at such other court and time as shall be appointed by the said justices; and the party that shall be cast in the same, shall pay to the prevailing party such reasonable cost and charges as shall be allowed and taxed by the chief justice aforesaid.”
      The only issues which can be made up under the Act are :
      1st. Does the property claimed by the garnishee belong to him, and not to the absent debtor ?
      2d. Is the return of the garnishee true in the whole or only in part?
      The verdict ought to correspond with the issue ; if it departs from it, a venire facias de novo is inevitable. For the issue made is undecided.
      In the case now in hand, if the issue be regarded as that which first arises under the Act, the verdict does not decide it. For the plaintiff neither asserts nor has a claim of right to the property; the question of title is, it is true, made by him, but in making it, he sets up the title of the absent debtor, and denies that of the garnishee. A general or pecuniary finding for him, does not necessarily conclude the facts stated in the record. It is true, we may suppose that the jury intended to assert their truth; but there is nothing in the verdict which when read in connexion with the suggestion will shew that the jury have found the property to be that of the absent debtor.
      If the issue be considered as the second arising under the Act, the verdict is contrary to the facts of the case, as well as informal.
      In Westmorland vs. Tippens, 1 Bail. 514, the defendant, the garnishee, was in possession of a single slave, alleged to be the property of the absent debtor, and of a greater value than the amount of the plaintiff’s debt: the jury found for the plaintiff the amount of his debt; the finding was held to be erroneous, andso much ofthe verdictas found a specific sum, was rejected as surplussage, and the general finding for the plaintiff allowed to stand. If this case, like that, was for a single chattel, that precedent might justify us in pursuing the same course, and supporting this verdict. But here three slaves are in issue, to one of which the absent debtor has no title ; hence a general verdict, finding all three of the slaves to belong to the absent debtor, is contrary to the facts. A pecuniary finding for the plaintiff, is clearly informal and beyond the issue.
      The proper finding in this case would be, of the specific goods in the hands of the garnishee, which the jury may be satisfied belong to the absent debtor, with the respective value thereof. This seems to be the settled practice under the Act of Pennsylvania, which is very like ours, and the construction upon whichvhas been often resorted to as a light to assist us in reading correctly our own Act. (Serg. on Att. 27, 30.)
      The first part of such a finding as that which I have suggested, is the only proper mode of disposing of the issue. The second part has not only the sanction of the practice in Pennsylvania, hut is, I think, a legitimate consequence resulting from our Act, construed in connection with the custom of London. In an attachment under that custom, in case of default by the garnishee, there is a judgment of appraisement of the goods. (Serg. on Att. 31.) Our Act, in that specific case, has made the garnishee liable for the plaintiff’s debt, without an appraisement. But the 3d section of the Act of 1744, P. L. 188, which provides for the delivery of the goods, chattels, debts and books of accompt attached, to the plaintiff on filing his declaration, directs that they shall be “inventoried and appraised by two or more persons, to be appointed by the court for that purpose.” This is a clear recognition of the custom of London, in a case where there is no dispute about the goods, and when they are to be delivered to the plaintiff After a verdict establishing the right to be in the debtor, the goods become applicable to the payment of the attaching creditor’s debt; and under the section just alluded to, he would be entitled to have them delivered to him ; and it would follow, that they should be inventoried and appraised by two or more persons, to be appointed by the court for that purpose. These words of the Act are very well satisfied if the appraisement be by the jury ; for the verdict is itself an inventory of the goods, and the value found will be an appraisement. Each of these acts will be done by two or more persons appointed by the court, when the jury do them by the direction of the court trying the case.
      The reasons for such a finding as that which T have suggested, would, in a case of doubtful construction of a statute, well warrant the court in giving to it their sanction.
      The garnishee, who may have, on a mistaken view of his rights, claimed the property, ought not to be punished beyond the penalty imposed by the Act, which is the payment of the costs of the prevailing party; he is therefore allowed to discharge himself by delivering up the property found to be that of the absent debtor. To enable him to do this, the verdict must find the specific goods. So, on the other hand, the garnishee ought not to be allowed to protect himself or defeat the creditor, by putting the property out of the reach of an execution; to prevent this, the value must be found, so as to enable the court, (when the property is not delivered, and cannot be found to satisfy the creditor’s execution,) on rule, to give the creditor an execution for its value against the garnishee,
      The motion for a new trial is granted.
      Desaitssure, Johnson, Harper and Johnston, CC. and Evans, Earle and Butler, JJ. concurred.
     