
    *A. Olin vs. Figeroux & Champy.
    Defendants purchased from plaintiff a box of goods, which plaintiff had received from Pitray & Viel, by a power of attorney from one Cuvillier, and upon which plaintiff had paid the expenses, and was in the said power of attorney declared the purchaser. After the sale by plaintiff, to defendants, a writ of foreign attachment was issued against the said Cuvillier ads. Charles Jugnot. The account was afterwards attached in the hands of the defendants, and the money paid by them into Court, without notice to the plaintiff. Held, that the plaintiff was not estopped by the proceedings in attachment from recovering against the defendants the price of the box of goods ; and their paying the money into Court did not discharge their liability.
    There is nothing in the attachment Act which would require one to come into Court and litigate his rights in a suit to which he is not a party.
    Before Richardson, J., at Charleston, January Term, 1841.
    Assumpsit on account for goods sold. The defendants had admitted the account, but said the debt had been attached in their hands, &c.
    It appeared that the plaintiff’s writ was filed 18th April, 1840. An attachment had been filed 21st January, 1840, by Jugnot vs. Cuvillier ; and the money was paid into Court, by order, &c , in May, without notice to the present plaintiff, and Jugnot received the money upon the usual terms. The return of the garnishees was received as competent, as a necessary part of the proceedings in the attachment, although objected to.
    There was evidence adduced, which left it questionable whether the goods sold belonged to the plaintiff, Olin, or to Cuvillier, (see my notes.) But the case turns upon the charge to the jury.
    I charged them, that the plaintiff was estopped, by the proceedings in the attachment; and the defendants discharged from the payment of the money, a second time. The jury found for the defendants, and the plaintiff appeals.
    judge’s notes op evidence.
    
      Macbeth — Defendants called and admitted they had purchased the goods, and were willing and ready to pay. But the debt had been attached in their hands.
    
      Defence — Defendants have paid the money into Court. Attachment 21st January, 1840. Order in May, to pay into ♦Court, and the money was paid. This r#2-. writ is of April 18th, 1840. Attachment in the name of Jugnot vs. Cuvillier, *- and defendants made garnishees. 13ut no notice of the money being paid into Court, was given to plaintiff, and Jugnot has got the money, &c., to be repaid, if he should not recover against Cuvillier. The return of the garnishees, &c., tiled 4th April, 1840. They are competent.
    
      Roger — 18th August, 1839, received the bill of lading, with orders to deliver to owners ; the box was marked E. C. Olin called for the box, he said it was his ; produced bill of sale, and power to receive the case. This was Cuvillier’s power, &c., (see the power.) In January, 1840, Olin, plaintiff, had box, and paid for it. He paid expenses, duties, freight, &c., &c., and treed the case. lGth or 17th January, Jugnot called, and asked if he liad such a case for Cuvillier. Witness told him what had been done. Witness told Jugnot it had been sold to Figeroux & Champy, by Olin. Witness advised Figeroux upon the attachment being issued; advised him to pay the money into Court.
    
      Michel — Cuvillier borrowed money of plaintiff, Olin, and of witness too.
    
      Cross-examined — Olin said he would not be covered by the case by §200. Cuvil-lier said he would send on goods to pay the debt, &c.
    
      Court — Thinks plaintiff having notice of the attachment of Jugnot, cannot recover.
    COPY OF RETURN.
    Charles Jugnot vs. Eugene Cuvillier.
    
      State of South Carolina— Common Pleas — Attachment.
    Personally appeared before me, Benj. Figeroux and O. Champy, who being duly sworn, deposed, that they have been served with a copy writ of attachment in the above case, and they make the following return, to wit: that they have a box of goods in their hands, for which they agreed to give the sum of $279. The goods were sold by Mr. Olin to them, and as they are in doubt to whom the money belongs, (as Mr. Olin informed Mr. O. Champy, that he intended to send some portion *of said money to Mr. Cuvillier,) they pray to bo allowed to pay the money into Court, and to bo discharged with their reasonable costs and charges. They further swear, that they know of no other property of the said Eugene Cuvillier.
    IS. FIGEROUX,
    OSCAR CHAMPY.
    
      
    
    Endorsed, Pringle, for garnishee. Filed April 4th, 1S40.
    
      ORDER OF COURT, 8in JANUARY, 1841
    
      Jugnot vs. Cuvillier. Case of Attachment. — On motion, it is ordered, that the clerk do pay over the money to the plaintiff, paid him in this case, upon giving the security required by law.
    J. S. R.
    Recognizance in attachment — Without date as to either day, month or year— Charles Jugnot and W. W. Kunhardt, obligers to the State, in the sum of $592 40, (for the use of Eugene Cuvillier,) recited writ issued by Jugnot against Cuvillier, an absent debtor, and conditioned that Jugnot should prosecute his suit to judgment with effect, and should cause to be forthcoming and return to the absent debtor, the sum of $296 20 cents, in case the absent debtor should appear in Court, within a year and a day from the date of the bond, and discharge himself of the demand of the said Jugnot; and if the absent debtor should not appear as aforesaid, then that the said Jugnot should deliver into the hands of the clerk, all such overplus of moneys as shall be paid to him, after paying and satisfying thereout, such sums as should be awarded by the judgment of the Court, that the same might remain subject to the further order of the Court.
    COPY OF RECEIPT TO CLERK.
    
      Charles Jugnot vs. Eugene Cuvillier — In attachment — Figeroux & Champy, (garnishees.) Received of Charles C. Strohecker, Clerk of the Court of Common Pleas, $296 20, in full of moneys paid into Court by said Figeroux.
    CHARLES JUGNOT.
    Charleston.
    *COPY OF POWER OF ATTORNEY.
    Know all men by these presents, that I, Eugene Cuvillier, late of Paris, France, and now residing in the city of New Haven, in the State of Connecticut, do hereby constitute and appoint Monsieur Auguste Olin, of Charleston, South Carolina, my true and lawful attorney, for me, and in my name, to receive from Pitray & Viel, of said Charleston, a certain box directed to me and marked “E. C.,” and to give to the said Pitray & Viel, when said box shall have been received by my said attorney, a receipt, acquittance, and discharge therefor ; which receipt, or discharge, when signed and delivered by said attorney, shall be a full discharge to (them) the said Pitray & Viel, of all claims which I may have upon (them,) on account of said box, and the contents thereof. And I do hereby declare, that my said attorney is the purchaser of the said box, and the contents thereof, and that lie has full power and authority to apply the same, when received by him, to his own proper use and benefit. (And whereas, it is possible that the said box, and contents thereof, are directed to Madame Cuvillier, I hereby declare the said box, if so directed, is the box intended by this letter of attorney.) In testimony whereof, I have hereunto set my hand and seal, at said city of New Haven, this 3d day of January, A. D. 1840.
    EUGENE CUVILLIER. [seal.]
    
      
    
    Duly authenticated, under hand and seal of Wm. B. Bristol, Notary Public, at New Haven, the day and year above mentioned.
    (Translated.) Received the witliin mentioned box, Jan. 16, 1840.
    (Signed) A. OLIN.
    Charges paid us, by Mr. Olin, $56 37 cts.
    TILOS. J. ROGER & Co.,
    Successors of Pitray, Viel & Co.
    GROUNDS OF APPEAL.
    1. That his Honor suffered the defendant to give in evidence certain proceedings in foreign attachment, to which the plaintiff in this action was no party.
    
      *2. That his Honor allowed the defendant to give in evidence his own r*9Qij return, as garnishee, to the said writ of attachment, thereby making him ' a witness in his own case.
    3. That his Honor erred in charging the jury, that defendant’s payment of money into Court, under order of the Court, as garnishee aforesaid, although after writ served on them by present plaintiff, and without notice to him of such payment, was sufficient to bar the plaintiff from a recovery.
    4. That his Honor erred in charging the jury, that the plaintiff was not entitled to recover, although the defendant paid the money into Court, and suffered the attaching creditor to take it out of Court, without contest, (thus disabling plaintiff from ever getting it back,) after writ served on him by plaintiff', and without notice to plaintiff, and that too, when the same attorney represented both the attaching creditor and the garnishee.
    5. That his Honor erred in charging the jury, that the plaintiff was barred by the defendant’s payment of money into Court, when it is respectfully submitted, that the only question at issue was, whether the goods sold were the property of the plaintiff, or of the absent debtor; and his Honor should have charged the jury, and left them to decide accordingly.
    6. That the verdict was palpably against law and evidence.
    
      Yeadon, for the motion,
    contended that the attachment offered in evidence was not a bar to the plaintiff’s recovery ; and that the plaintiff' had no right to make himself a party hy force. Also, that the power of attorney was a bill of sale, and the attorney the purchaser.
    
      Kunhardt, contra,
    cited 3 E. 367. Evidence under the plea of non-assumpsit.
    
      Memminger, contra
    also. Was payment of money into Court, by a third person, a discharge ? He also contended that there was collusion between plaintiff and the absent debtor. That this was a question for the jury, and they had decided. Olin, he contended further, had notice. Also, whoever has a claim against a thing attached, should come in and establish his claim. Cited 5 Johnson, 101; Sergt. 146; 1 Rice’s Dig. *head, Attach. 80 ; 3 East. 367. The party has a remedy over against the party receiving it, 2 II. Black, 407 ; 1 ib. 665, settled the same principle ; 2 Dal. 73; a party having account may come in and claim. He also contended that a garnishee was protected by the proceedings in attachment.
    
      Yeadon, in reply,
    said the rule laid down hy the counsel only extended to the absent debtor, and cited 1 Bail. 193.
   Curia, per

Evans, J.

If Jugnot bad attached a debt really due to Cuvillier, there would be no doubt that a payment of the money into Court, and the delivery of it to the plaintiff in attachment, would have discharged the defendant from the payment of it to Cuvillier. All the authorities agree in this, and this is the result of the case quoted in the argument. But the present is a very different question Here the plaintiff claims the debt as due to him, and from the evidence offered, it seems very clear the goods were purchased from him. Cuvillier seems to have been once the owner, but the evidence of sale to the plaintiff was pretty clearly established, unless there was some collusion between them to defraud the creditors of Cuvillier. If there was so, then that point should have been submitted to the jury. The case, as presented here is, whether the plaintiff, Olin, is estopped by the proceedings in the case in attachment of Jugnot vs. Cuvillier. I am of opinion he is not. There is nothing in the attachment Act which requires him to come and litigate his rights in a suit to which he is not a party. If Olin was a mere agent to sell the goods, and the debt due for them was Cuvillier’s, then it might have been attached in his hands, and if he had failed to assert his right, he would have been bound by the record. But in this case Jugnot did not make him a garnishee, and he had only verbal information that the money was attached. Under our practice he might, perhaps, have come in and had an issue to try the question, whether the money due for the goods was his, or the absent debtor’s ; but I do not know of any legal principle which makes it obligatory on him to do so. There is no such obligation imposed by the attachment Act. The defendants purchased the goods from the plaintiff. He sold the goods as his own, and nothing appears to the contrary, but that the debt was due to him. The defendants have voluntarily involved *themselves in the difficulty, by suggesting a doubt whether the money, or a part of it, might not belong to Cuvillier; for, independent of their return, as garnishee, there is not the slightest evidence to impugn the plaintiff’s right to the money. Their course was a very plain one. They had no dealings with Cuvillier. All they had to do, was to return they had nothing belonging to him. But they chose to offer to pay the money into Court, and in consequence, the money was paid into Court, without the plaintiff’s knowledge or consent, and Jugnot has received it as Cuvilier’s money, on giving his bond to repay, if he should fail to prosecute his suit to judgment, or the absent debtor should, in a year and a day, discharge himself from the demand. By this course of proceeding, the plaintiff’s right to recover his debt is not impaired. The proceedings in attachment do not estop him from demanding and receiving it, if the debt is bona fide his, and not the ■absent debtor’s. The motion for a new trial is therefore granted.

See 2 Sp. 116, 390. An.

Gantt, O’Neall, Earle, and Butleu, JJ., concurred.  