
    Julius Tavel vs. John Barre.
    "Where a garnishee omits in his reí un to state what goods, &c. may be in his “ power,” as well as possession, See. the attar i. ag creditor •should make his exceptions to such return by suggestions, and not file a declaration against the garnishee a, if no return had been made'.
    Tried, October Terra, 1821.
    MR. SARGEANT made the following motion : “ On motion of the plaintiffs attorney, it is ordered that he have leave to .file a declaration against Thomas Middleton, garnishee,” which motion was refused by the presiding Judge. The case was, that William F. Shackelford and Thomas Middleton were copartners, during which, as it is said, John Barre placed certain wine in their hands and departed from the state. Thereupon, Julius Tavel applied for an attachment, and served each partner with a copy of the writ of attachment, upon which, Shackelford made default, but Middleton returned that he had nothing in his hands or possession, but omitted the word “ power.” This return, under the present act, (Pub. Laws, page 187,) in which the word power is introduced, the plaintiff contended was insufficient; for although he may have nothing “ in hands or possession,” yet, he may have something in his power, as a partner in the said factorage business, which may be proper matter for a jury to try. A declaration was presented to the clerk to be filed in order to put Middleton to plead. Bui the clerk refused to file it. Leave was then asked in open court, as above mentioned, and refused. The plaintiff therefore prayed this court to reverse the decision. 4
   Mr. Justice Richardson

delivered the opinion of the court:

The act requires the garnishee to return whatever may be in his possession or power ” belonging to the absent debtor. The declaration offered to' the clerk, consisted ófthe usual count, &e. stating the total default of the gafnishee, and praying judgment against him. Such a proceeding could have no application to this case. If the return of Middleton wanted the word “power,” either the filing should have been opposed or upon the insufficiency, a rule taken to shew cause why he should not amend the return. Or if it Was intended to charge him with having the wine within his power, a suggestion on oath, specifying the articles, arid charging him with a false return, and requiring his further return, as it regards them, might have led to t.he proper issue j to be shaped according to the particular occasion and state of facts, as they eventually should appear. But the declaration, as it is called, is predicated upon the supposition of a total default in the. garnishee, which default does not appear by the mere omission of the word “ power,” The return possibly may be voidable, but certainly it is not void.

SfiPgent, for the motions

The motion isi! therefore dismissed.

Justices Colcock and Johnson, concurred.

ÍJott, Justice:

I concur in this opinion, except as to that part which relates to a rule on a garnishee to amend his return, ojt which, I give no opinion.

Gantt, Justice :

The return was either good cr not in law. If insufficient, then the plaintiff was entitled to his judgment by default. It'was a favour to the garnishee to allow him iu plead, and the. motion should prevail,

contra.  