
    Swann Brothers vs. E. M. Lee & Brother.
    
      A ttachment, Foreign — Practice.
    Under the foreign attachment Acts no judgment can be entered against a garnishee who has made return to the writ of attachment.
    More than seven years after writ of foreign attachment served, garnishee, on receiving notice of motion to enter judgment against him, allowed, on sufficient cause shown, to make his return, and thus defeat the application to enter judgment.
    BEFORE MOSES, J., AT CHARLESTON, JUNE TERM, 1867.
    Tbe report of Ms Honor, tbe presiding Judge, is as follows :
    “In November, 1859, a writ ia foreign attachment issued in this case, and B. Q. Pinckney was served as garnishee. Proceedings were regularly carried on, and on ^reference to the clerk in July, 1861, damages were assessed at $254.19, interest from August 28, 1859. A judgment and execution were made out, and left with the clerk at his office for entry of judgment, and signing and sealing of fi, fa., tvhich by some oversight or casualty of that officer were never done. In May, 1867, an order was passed, allowing tbe plaintiffs to enter up judgment nunc pro tunc.
    
    “At June Term, 1867, after tbe notice required by tbe Act of 1844, a motion was made for leave to enter up judgment against tbe garnishee, who was in default, not having made any return. At tbe same time a motion was submitted by the said garnishee for leave to file his return, founded on an affidavit then presented, which accompanies this report. I regarded this as an application in a matter where I bad the power to exercise á discretion, based on a proper regard to the rights of all parties, and the due administration of justice, and I granted it. That return showed, that at the time of the service on the garnishee, he had in his power and control enough of the property of the absent debtor to meet the amount for which the attachment issued, and though leave bad been granted to him to file his return, he could not ask to be placed by his laches in a better situation than the one he occupied at the time of the service of the writ, and his return, though filed, must be taken, as nunc pro tunc.
    
    
      “ I did not see how I could refuse the plaintiffs’ motion to enter up judgment against the garnishee, or how I could relieve the latter from the effect of his own neglect, for he could have asked leave at the first term after the service, in 1859, to pay the money into Court, and thus have relieved himself from any further liability. I did not consider that I had power to deprive the plaintiffs of the right which they had under the law, and granted the order.”
    The affidavit on which the motion of the garnishee was founded is as follows:
    Before me personally appeared Robert Quash Pinckney, Factor, upon whom has been served notice of a motion for leave to the said plaintiffs to enter up judgment against him as defaulting garnishee, and on oath says:
    That a paper, endorsed as a writ of attachment, was served on deponent in November, A. D. 1859, upon the receipt of which he waited upon Messrs. Memminger, Jervey & Wilkinson, attorneys for the plaintiffs, and informed them that he held in his hands the proceeds of cotton, which had been consigned to him by Messrs. E. M. Lee & Brother, and was ready to respond for the funds when required. Deponent at the time held the funds of Lee & Brother in his hands, as factor and commission merchant, in the manner and form in which, according to the custom and usage of factors, the funds of their customers are habitually kept, viz., on deposit to their own credit, in bank. In this way deponent continued to hold said funds, as he always believed, with the knowledge and assent of the plaintiffs, and regarded the same as bound by their attachment. For five years following the attachment and his interview with the plaintiffs’ counsel he continued to hold an amount in bank, of current funds, sufficient to cover the amount of the attachment, and kept himself ready, at all times, to pay it over to the attaching creditor, whenever required ; the possession of the funds, so held, was never of any advantage or profit to the deponent, as the amount was too small to be an object for him to retain it. He allowed it to remain in his hands, as much for the convenience of the plaintiffs, as for any other cause.
    In the year 1861 the revolution occurred, which resulted in the formation of the Confederate government, and in the issue of Confederate currency. In common with the whole Southern business community, the bank deposits of deponent (including the attached funds) became converted in the natural course of business into a deposit, payable in Confederate currency, which then, and for some time after, was at par with bank notes and gold. Deponent not being required by tbe plaintiffs or their counsel to make a special deposit of said funds, acted in reference to said funds in the same way in which he dealt with his own money, and continued his deposits in bank in the new currency, until the month of April, in the year 1864, when the banks in Charleston required all their depositors to withdraw their deposits, or allow them to be converted into four per cent. Confederate bonds. Deponent had no safer investment within his reach, and the funds of Lee & Brother, together with his own, were converted into said bonds. The fund, which thus remained in his hands, without protest or complaint from the plaintiffs, shared the fate of deponent’s own funds, and of all other bank deposits, whether general or special, as well as trust funds generally, and perished in value, with the fall of the Southern Confederacy.
    Deponent was never called on during the course of the whole seven years from 1859, when first served, to this date, to pay the money into Court, or to deliver it up to the sheriff, or to an assignee, or to the plaintiffs in attachment, nor was any complaint ever made by the plaintiffs, or their counsel, because of a failure to make a formal return as garnishee, although they had been informed and were well aware, that the subject-matter of their attachment vras a deposit in the hands of deponent. From this non-action on their part deponent concluded that a formal return was unnecessary, that the purpose of the summons to him was answered by his admission of the fund to the plaintiffs’ counsel, and that they were content to allow the funds to continue with him on deposit, as factor.
    Deponent further swears, that in consequence of the service of the said attachment upon him he was prevented from paj ing over the said funds to Lee & Brother, although they made repeated application to deponent for their funds, and he would gladly have discharged himself Irom their claim, but refused to do so in deference to the attachment.
    E. Q. PiNCKNEY.
    Sworn to before me, this ninth day of July, A. D. 1867.
    Theodoee Gr. Barker,
    
      Magistrate.
    
    The garnishee appealed and now moved this, in arrest of judgment, on the following grounds :
    1. That the motion of the plaintiffs was addressed to the discretion of the Court, and the leave to enter up judgment was within the control of his Honor, to grant or refuse, according to the real equity of the case, between the plaintiffs, as attaching creditors, and the garnishee, and should not have been granted.
    2. That his Honor after hearing the uncontradicted affidavit of the garnishee, showing how the fund had been held by him and how it had perished in his hand, should have allowed the affidavit to be filed and discharged the garnishee.
    3. That in a case where the garnishee was only technically in default, for want of a literal compliance with the strict forms of law, without having been guilty of fraud or misfeasance or wilful negligence, causing damage to the plaintiffs, it is contrary to natural justice and common right, that on a mere motion, a solemn judgment should be passed against him, and he be condemned for a penalty, incurred by a causal omission of a mere form. |5
    4. That the judgment of the Court at' Common (fcaw and under our Constitution should be, properly, the condemnation of a party for a breach of contract, or for damage caused by bis wrongful act. That the party condemned is entitled to due process of law or suit, wherein the complaint of the plaintiffs and the defence of the defendant should be distinctly set forth, for the judgment of the Court, as to the law, and in order, that the facts of the case may be enquired of by a jury of the country, and the damages assessed according to the injury inflicted. That his Honor, in this case, should at least, have ordered an issue to be made up, between the plaintiffs and the garnishee, to be submitted to the jury.
    5. That the mere omission to file a formal return on the part of the garnishee in 1859 or 1860, was not a sufficient ground to entitle the plaintiffs, after a lapse of more than seven years, to a j udgment, nunc pro tunc, against the garnishee, for a fund, which had, during the delay of the plaintiff's in perfecting their suit, perished in the hands of the garnishee, by force of circumstances beyond his control and without fraud or culpable neglect.
    6. That the plaintiffs are not entitled to claim the letter of the law against the defendant, because they cannot clear themselves on the record, from technical defects in their own proceedings. That the only notice the garnishee ever received was technically insufficient, and the plaintiffs were guilty of laches in not entering up judgment when obtained in 1861, and taking the fund into their own custody at that time.
    7. That after the attachment had been served and the defendant had come forward with the information he was required to furnish, and had admitted to the plaintiffs’ counsel, that held the funds of the absent debtor, subject to their attachment, the spirit of the attachment act was fully complied with, and the plaintiffs by their subsequent non-action, must be presumed to have acquiesced in tbe funds remaining as they then stood, in the garnishee’s hands.
    8. That it should have been shown to the Court that the technical default or omission of the garnishee bad put the plaintiffs in a worse position than they would have been in if a formal return in writing had been filed. That even if the garnishee through excessive caution had obtained an order for the payment of the money into Court, the funds would have been equally lost to the plaintiffs.
    9. That the garnishee, having refused to pay the money, before and during the war to the absent debtor, in deference to the plaintiffs’ attachment lost the opportunity of discharging himself of the debt, and having held the funds for the benefit of the plaintiffs, with their seeming acquiescence, should not be held to a more stern accountability than any other agent or stakeholder would be held for funds left in his hands; and should not be made to answer, as the insurer of funds through a civil war of four years duration and political and financial convulsions of an unprecedented character and extent.
    
      Simonton & Barker, for appellant.
    
      Memminger, contra.
   The opinion of the Court was delivered by

Inglis, A. J.

The purpose of a proceeding by foreign attachment is to subject the specific property attached to the satisfaction of the plaintiff’s demand against the absent .debtor, when it shall, in due course, have been established. (A. A. 1744, § 1, 3 Stat. 617.) To the accomplishment of this purpose, all the provisions of the several Acts on the subject are exactly adapted. If tbe property is at large, no one having possession, tbe officer executing tbe writ takes it into bis own possession, and thus tbe lien is constituted. If some third person is in possession, tbe same effect is wrought by serving upon such person a copy of the writ, with the prescribed notice endorsed. The surrender of the property attached to the sheriff by the party in possession not claiming as a creditor, (A. A. 1844, § 1, 11 Stat. 290,) or the security given by such party for its forthcoming to answer the order that shall be made upon the adjustment by the Court of the rights of all the parties, (A. A. 1744, § 1-6, 3 Stat. 617-9;) the making up and trial of issues, (Lord ads. Arnold, MS. Dec. 1826; Goldthwaite vs. Bryant, 1 McM. 432,) to determine the claim of the party in possession as creditor of the absentee or otherwise, or the truth of his return, or the claim of a stranger as owner of the property attached, the delivery thereof to the assignees appointed pending the proceeding, or to the creditor himself upon its conclusion; the sale of perishable chattels attached, (A. A. 1844, § 45, 11 Stat. 290; A. A. 1744, § 7, 3 Stat. 619; Lord vs. Arnold, MS. Dec. 1826, 1 Rice Dig. 80,) or the payment of money into Court, all look to the maintenance of the lien so constituted, and the making it ultimately effective by the actual condemnation of the property itself, to the removal of intervening obstacles thereto, and to the preservation of the property until this final purpose can be attained.

When the person who is supposed to have in his possession or power, property of the absent debtor liable to attachment, and is, therefore, served with a copy of the writ, makes default by refusal or neglect to return, in compliance with the notice endorsed thereon, an account of the property so held by him, the statutes interpret such default as an admission that he has in his hands property liable to the process sufficient for its purpose. (A. A. 1744, § 1, 3 Stat. 617; A. A. 1844, § 3, 11 Stat. 290.) Because bis failure leaves the Court without the necessary knowledge of the specific property, and to this extent thwarts and prevents the primary purpose of the proceeding, the law, as the nearest practicable approximation thereto, permits the creditor, at least upon the establishment of his demand against the absentee, after notice personally served, and upon motion in open Court, to take judgment against the garnishee for the amount of his recovery. The attachment Acts do not authorize the entry of judgment against the garnishee for the plaintiff’s demand against the absent debtor in any other event than upon such default to make the required return, for in no other event is there any reason for such a course. In every other case the property, itself can be reached, and the primary purpose of the proceeding be directly accomplished. Proper methods of compelling specific delivery, for this purpose, of the attached property, are provided either by the express terms of the statutes, or by the usual practice of the Court in enforcing obedience to its orders by its officers or those who, by collateral connection with the proceeding pending before it, are, pro hac vice, subject to its jurisdiction. (A. A. 1844, § 2, 11 Stat. 290; Westmoreland vs. Tippens, 1 Bail. 514; Cohen vs. Sherman, 2 Sp. 534.) In the present case, if the garnishee, Pinckney, had, in conformity with the literal requisition of the law, at the term succeeding the return of the writ served upon him, (January Term, I860,) duly made his return thereto, certainly no judgment could have been had against him, then or afterwards, for the absentee's debt, though in such return he had admitted his possession of sufficient property liable to attachment. The report of the Judge, presiding on the Circuit, informs this Court, that “ at the same time” w hen the creditor moved for leave to enter up judgment against the garnishee, the latter submitted a motion for leave to file his return, nunc pro tunc, which motion was granted, and tbe return filed. The effect of this leave given was certainly to cure the fact of default, and therefore to prevent its consequence — the absolute liability to judgment and execution for the amount of “the debt attached for.” The garnishee was thereby, so far as the fact of having made a return could affect his position, and as between the parties to the proceeding, exactly where he would have been, if he had made his return at the day limited in the Acts. Whether the events subsequent to the service upon him of the attachment writ, which are detailed in his return, can relieve him from his responsibility for the production now of the absent debtor’s property admitted to have been then in his hands, to answer the plaintiff’s recovery against the latter, is not the question at present before this Court for decision, and upon that nothing is intended to be said. In a proper form of proceeding to enforce his responsibility in this behalf, that question can be duly made and properly decided. If the return filed, nunc pro tunc, is insufficient in its terms for the purposes of the plaintiff, it should have been excepted to therefor when submitted, and if the exception had been deemed well founded, an order for its amendment would, no doubt, have been made. (Tavel vs. Barre, 2 Mc. 201; Nelson vs. Scott, MS. Dec. 1826, 1 Rice Dig. 80; Murrell & Foote vs. Johnson, 3 Hill, 13.) This Court, much as it may regret any misunderstanding of the proceedings below, by any one of the parties to his own prejudice, does not feel at liberty to go, for the facts upon which its judgment is to proceed, outside of the report.

There is no just cause for discontent with the leave given to the garnisheee. If the consequence visited upon his default is to be deemed a punishment for his contempt in disobeying the process of the Court, still the object of the denunciation of such punishment is to compel a discovery and account of the property in his hands in order to reach it specifically, and thus attain the primary purpose of the proceeding. If this discovery and account is had at any time before the creditor has, by a due course of proceeding, “ legally proved to the Court the debt attached for,” it would seem to be in time for its purpose, and the contempt to be thereby purged. But if, instead of being a penalty, the leave to enter up judgment is merely the just result from the admission of sufficient property, which the default implies, because it is the nearest approximation to the primary object of the proceeding which such default leaves • in the power of the Court, there is still greater reasonableness in listening with indulgence to applications to cure the default by furnishing the coveted discovery while it is yet in time not to delay the creditor in his remedy.

It is, however, not the mere omission, which constitutes the default thus visited. The "refusal and neglect” mentioned in the Acts imply something more than mere failure to appear and make the discovery directed. They import wilfulness and purpose in such omission. The fact of omission being given, the law very properly presumes wilfulness therein, and throws upon the garnishee the burden of showing the contrary; and therefore it is that sufficient cause (if not consistent with the absence of wilfulness and purpose, it cannot be sufficient) being shown at any time before the order for judgment against the garnishee is made, is permitted to cure the default by rebutting the presumption. In accordance with this view are the cases cited in the argument, (Green vs. McDowell, 1 Bail. 304; Hunter vs. Andrews, 2 Speer, 73; Horsey & Co. vs. Palmer & Jordan, 9 Rich. 24;) and to this view also conforms the provision introduced by the Act of 1844, (§ 3.) which requires motion in open Court, after two days’ notice thereof to the garnishee, in order to a leave to enter judgment against him for the absentee’s debt. If the mere fact of omission to make a return at the day. renders him absolutely liable to judgment for the debt, and that omission is not open to correction up to the very last moment before order for judgment against him, what is the purpose of such a requirement? Why shall he have notice of the motion, if he is precluded from showing cause against it, and what cause can be shown otherwise than in the form of a motion for leave to make his return of discovery and account, nunc fro tunc ? The present garnishee, when served with the writ, informed the creditor that “ he had in his hands the proceeds of cotton belonging to the absent debtor, and was ready to respond for the funds when required.” He made no claim as creditor in possession. The plaintiffs in the attachment took no steps to have the attached funds transferred to the custody of the sheriff or of assignees appointed pending .the suit for the establishment of their claim against the absent debtor, or to their own possession, or to have it paid into Court, thus apparently acquiescing in, and assenting to, its retention by the garnishee. When, at the June Term, 1861, the amount of their demand was ascertained by the Court, no judgment was entered therefor, and no application was made to the garnishee for the fund, or to the Court for judgment against him. Persistent non-action continued for six years afterwards. In the meantime causes were in operation which wrought great and violent changes, rendering that which was ample in value at the service of the writ, and at the recovery against the absentee, for the satisfaction of the plaintiffs’ demand, now utterly worthless in the hands of the garnishee. In such circumstances, would it be just to convert a mere omission to make a formal return at the day — clearly not a wilful “ neglect or refusal” — -an omission acquiesced in, if not assented to, by the creditor, with full knowledge of all the facts which a return would have disclosed, into the occasion of subjecting the garnishee to an absolute liability for the debt, without an opportunity to make and test the question of bis responsibility for the disappearance or destruction of the specific fund attached while thus left in his hands, and that, too, when the creditors’ own inaction had permitted the operation of the causes, which, it is alleged, had wrought the waste or destruction, to intervene between themselves and the realization of the satisfaction which was in their power ? The cause shown for leave to file the return, nunc pro tunc, seems entirely sufficient. It is the opinion of this Court that the order made on the Circuit, granting to the plaintiffs, Swann & Brother, leave to enter up judgment against the garnishee, R. Q. Pinckney, is without authority, and should be rescinded; and it is so ordered, and that the judgment so entered, if any, be set aside.

Dunkin', C. J., and Wardlaw, A. J., concurred.

Motion granted.  