
    J. & F. Dawson vs. William Dewan.
    
      Attachment — Rent—Sheriff—Practice.
    Goods seized in attachment by the sheriff are in the custody of the law, and are not liable for rent not due, but growing due.
    Service of attachment on a garnishee is not equivalent to seizure by the sheriff.
    Disputed questions of fact, proper to be submitted to a jury, will not be decided by a Judge upon the return of a rule on the sheriff to show cause.
    Objection toa sheriff’s return toa rule that it is informal should be made in limine — it cannot be made by appeal after a decision on the merits.
    BEFORE WARD LAW, J., AT CHARLESTON, FALL TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ Rule against Mr. Carew, late sheriff, to show cause why he should not be required to pay to the plaintiffs, the balance of the proceeds of a sale made by. him.
    “The affidavits of Charles Kanapaux, (deputy sheriff,) Archibald McKenzie, (landlord,) and Patrick Dewan, (garnishee.) were read in answer to the rule. I understood that they constituted the return of the late sheriff, and had been by formal reference, adopted in his return. So they were spoken of on both sides, during a long argument, and even when I intimated my opionion that the return could not be contradicted; and until I received by mail the grounds of appeal, I had not imagined that there was any difference of views on this head.
    “ The plaintiffs, actors in the rule, read in reply, the affidavits of Job Dawson, (one of the plaintiffs,) and of Brown, (the assignee appointed by the Court under the Attachment Act of 1844.)
    
      
      “ The undisputed facts are these: writ of foreign attachment, J. & E. Dawson vs. William Dewan, was lodged July, 1859. The sheriff returns that he had seized the articles in a grocery store, and delivered a copy of the writ to Patrick Dewan, garnishee. At the time of the’ seizure, a claim was made by Archibald McKenzie, administrator of John Preston, and executor of Mrs. Preston, for a quarter’s rent of the store house. The rent was not then due, but became due in a few days. The goods were left in the store. An order for sale was made, and J. W. Brown was appointed assignee, upon his entering into recognizance, July 9 and 11, 1859. The goods were sold at the store, a quarter’s rent being then due. The proceeds of sale were two hundred and seventy-four dollars. The sheriff paid to McKenzie, one hundred and sixty-two dollars and fifty cents, a quarter’s rent; and the balance, one hundred and eleven dollars and fifty cents, he paid to the assignee, Brown, who signed a receipt, “ in full of the nett'proceeds” of sale. ' Patrick Dewan, garnishee,.made no return; but had possession at the time of the attachment, and surrendered the key to the sheriff under an agreement that the rent should be paid; if this agreement had not been made McKenzie would have become his surety under the Act of 1844.
    “ The fact disputed was, that the plaintiffs, and the assignee, witji a knowledge of their rights, had assented to the agreement for payment of the rent.
    
      “ I held that the sheriff’s return could not, in this form of proceeding, be contradicted ; that the disputed fact ought not to be decided by a Judge upon affidavits, and that the plaintiffs should be left to their action against the sheriff or the landlord, as they might be advised. The rule was discharged.”
    The plaintiffs appealed, and now moved this Court to reverse the decision, and to make the rule absolute, on the grounds:
    
      1. Because there was no return to the rule by the sheriff; and the affidavits of Charles E. Kanapaux, Archibald McKenzie and P. Dewan, which were filed, was not such a return to the rule as would authorize its dismissal. 4 N. Hampshire B., 35.
    2. Because his Honor erred in deciding that affidavits could not be heard in reply or explanation of the sheriff’s return. Wotton vs. Parsons, 4 McO., 368 ; Lord vs. Chappell, 1 McC., 566; Pylant vs. Townsend, 2 Mill, C. B., 158; Vigars vs. Mooney, 2 Pen., 909, 2 B. Munro, 35; Wendell vs. Mugridge, 19 N. Hamp.; Ladd vs. Wiggin, 35 N. Hamp. 421; Barret vs. Copeland, 18 Ver., 67; Slate vs. Sheriff, 1 Mill, 151;' Ex Parte Thurmond, 1 Bail. 606; Andrew vs. Lynton 1 Salk., 265.
    3. Because the decision was otherwise erroneous. Ayers vs. Depras, 2 Sp. 367; Act of Assembly, 1844, p. 290 ; Byne vs. Byne, 1 Bich. 442 ; Burg, Securities, 12.
    
      Phillips, for appellants.
    
      Simons, contra,
    cited Cooper vs. Scott, 2 McM., 155.
   The opinion of the Court was delivered by

Wardlaw, J.

If the case of the plaintiffs appellants depended simply on the determination of the question, whether a landlord could enforce his claim for rent not actually due, however soon to become due, from goods seized by the sheriff in attachment, this appeal would be sustained. It is settled, that when a sheriff has levied an execution or attachment on goods, he is not bound by the Statute of Anne or otherwise, to pay to the landlord rent growing but not grown due; and that after he has levied, the goods thus in custody of the law are not subject to a distress warrant for rent become due while they remained on the premises, Ayers vs. Depras, 2 Speers, 367. But in the present case it is doubtful whether the goods were in the1 custody of the law, by the seizure of the sheriff. It is plain that the lodgment of the attachment in the sheriff’s office, and service of a copy of the attachment on the garnishee in possession of the goods, are not equivalent to a levy on the goods, Day vs. Beecher, 1 McMul. 94; Gardner vs. Hurst, 2 Rich. 605. Such garnishee is responsible for the goods in his possession, and may be required to give security for their forthcoming; yet service on him is not taking the goods into the custody of the law. ■Patrick Dewan, the garnishee in this case, swears that he was in possession of the store of the absent debtor, when he was served with a copy of the attachment, and that he locked up the store before he was served, and consulted the landlord, who told him, all is right, give the key to the sheriff. This declaration of the landlord is explained by other affidavits to refer to a supposed agreement that his rent growing due, should be paid from the proceeds of the goods. The presiding Judge reports, the sheriff paid the landlord a quarter’s rent, and the balance to the assignee, who signed a receipt in full of the nett proceeds of the sheriff’s sale, and he concluded that the disputed fact as to the agreement for payment of rent should not be decided by a Judge upon affidavits, and that plaintiffs should be left to their action against the sheriff or the landlord, as they might be advised ; and we do not find sufficient reasons for overruling his conclusions. Scott vs. Cooper, 2 McMul. 155.

The formal grounds of appeal do not present the merits and may be soon despatched.

The complaint in the first ground, that there was no formal return of the sheriff to the rule adopting the affidavits of the deputy sheriff, landlord and garnishee, as the sheriff’s return, is well answered by the remark of the presiding Judge, that during the long argument, and until afterwards by mail, he received grounds of appeal, he had been induced to suppose that there was such formal return. This 'objection should have been taken in limine on circuit.

The second ground is, that the J udge erred in deciding that affidavits could not be heard in reply or explanation of the sheriff’s return. In point of fact the affidavits of one of the plaintiffs and of the assignee, were heard in reply to the return. The Judge did not refuse to hear affidavits, but refused to decide a doubtful question on affidavits, which was proper for a jury.

The third ground, that the decision is otherwise erroneous, is, in no proper sense, a ground of appeal. It is a vague and pointless vilipending of the primary judgment, not' intimating any such specific error, as might call for vindication from the adverse party, or demand the attention of the Court.

It' is ordered that the appeal be dismissed.

O’Neall, C. J., and Johnston, J., concurred.

Motion dismissed.'  