
    Michael Berry ads. The State.
    The sheriff, in attaching property in the hands of a garnishee, would not be justifiable in taking it out of his possession, where the garnishee claimed it either in his own right, or in the right of another.
    A judge at Chambers may issue a warrant for any offence.
    BEFORE BAY, J., AT CHAMBERS, 14th APRIL, 1837.
    Upon a motion to discharge a bench warrant, for an alleged resistance of the sheriff, in the discharge of his duty.
    This warrant was issued at the instance of the sheriff of Charleston District, who deposed that he went on board the ship “ Sutton,” of which defendant was commander, in order to attach the property of one Martin Feldt, an absent debtor. That the deponent went into the hold of the ship to seize the absent debtor’s goods, when the said Michael Berry put his hands on his breast and prevented him 'from taking the package of goods into custody.
    The defendant, Captain Berry, justified himself, alleging that in March, 1837, the said Martin Feldt shipped at New York, on board the Sutton, certain goods, which, being among the first received on board, were at the bottom of the cargo. That after his ship was fully freighted, and ready for sea, an attachment was issued against said Martin Feldt, who had absconded from New York, at the suit of Duffield, Swift and Raymond, and the defendant duly served with said attachment ; that on demand for said goods by the sheriff of New York, under said attachment, said Berry told him, that in order to deliver them it would be fiecessary to unload the ship; and to avoid the delay and expense thereof, it was agreed by said sheriff that said Berry should keep possession of them, on giving security for their return to said sheriff, which security was accordingly given, and said Berry thereby became bound for the return of said goods to the sheriff of New York. That after the arrival of the ship in Charleston, he was served with copies of several writs of attachment against said Martin. Eeldt, at the suit of Martin and Drinker, and other creditors, issued from the Court of Common Pleas for Charleston District. That afterwards the sheriff of said district came to the ship and demanded of said Berry the goods that had been shipped by said Martin Eeldt, and that -said Berry having been advised by his counsel that the said sheriff of Charleston District was not authorized by law to take said goods out of his possession, refused to deliver them to him; but, that said Berry was not guilty of any actual or injurious assault upon the said sheriff of «Charleston District, but merely gave him to understand, that he could not permit the goods to be removed from the ship, being advised that the said sheriff was a trespasser and wrong-doer in coming on board his vessel to take them. It was urged, also, on the part of Oapt. Berry, that subsequent to the issuing of the attachment writs in this State, the consignee of said goods named in the bill of lading, given when they were shipped in New York, had brought an action of trover against Captain Berry, for their recovery, under which he had given security, in conformity with the Act of Assembly, in such case provided.
    Upon the hearing of the case, his Honor Judge Bay gave the following opinion:
    
      “From the complexion of this case, and upon an examination, of the documents produced by Capt. Berry, master of the ship 1 Sutton,’ in his justification of his opposition to the sheriff of Charleston District, it appears to me that the goods of the insolvent debtor, attached in the port of Charleston, had never been regularly attached by the sheriff of New York, or legally in his possession, so as to give him a prior lien on the property of the goods in question, as it does not appear that he ever made any inventory of the said goods, or that he ever called to his assistance two disinterested freeholders, to value the same, as the law of New York requires, or to make any return of the value of them, or what they consisted of, to the Court at New York, so as to show that they were ever in the custody of the law, at that place; or if he ever had any legal possession of the insolvent debtor’s property, his consenting to its going out of his possession to the State of South Carolina, was a relinquishment of such lien on the said goods, as debars him of any further specific claim to them; and as he took a bond for the return of said goods, he must depend upon his bond and have his recourse on it for his indemnity.
    “ It further appears to me that these goods came into, and within the jurisdiction of South Carolina, without any other lien but the bill of lading given to the shipper, Martin Feldt, and as such, were liable to his creditors under the attachment law of South Carolina.
    “ Under these circumstances, the sheriff of Charleston District was well warranted in going on board of the ship 1 Sutton,’ to serve the attachment, and the opposition given by Captain Berry was a trespass, for which he is liable to a criminal prosecution.”
    Whereupon, the following order was made by his Honor Judge Bay:
    “It is ordered that the defendant, Capt. M. Berry, do deliver to the sheriff of Charleston District the goods which were attached in his possession, as the property of the absent debtor, Martin Feldt, and that upon his refusal to do so, he be fully committed for a contempt of the process of this Court; and it is further ordered that the said goods do remain in the hands of the sheriff, subject to the rights of the said attaching creditors, and every other person or persons claiming the same.
    “E. H. BRAT.
    “ 18th April, 1837.”
    From the decision of his Honor Judge Bay, notice of .an appeal was given, on the following grounds:
    1st. That the defendant had a lien, or claim upon the goods in question, in consequence of their having been attached in New York, and of his having given bond for their production to answer said attachment.
    2d. Because a garnishee in attachment, who has goods of an absent debtor in possession, cannot be divested of such possession, but must be left to make his return in conformity with the Act.
    3d. Because the process of a bench warrant was unauthorized and illegal, in the case in question.
    
      4th. Because an action of trover bad been brought by the holder of the bill of lading for said goods, under which the defendant had given security, and by which, if the said plaintiff in trover recovers, the defendant must be made liable for the value of the said goods.
    5th. Because the decision of his Honor was, in other respects, erroneous.
    
      Egleston and Frost, defendant’s attorneys.
    
      Eckhard and Moise, contra.
   Earle, J.,

delivered the opinion of the Court.

It cannot be necessary to decide all the questions presented by the grounds of appeal; and some of them it would perhaps be out of plaee to decide in this incidental way. We cannot undertake to decide on this motion the question whether the attachment levied on the goods in the harbor of New York, and the proceedings thereon, were regular according to the law of New York, or not: nor whether the defendant was entitled to retain the possession of them under his alleged arrangement with the sheriff of New York. These questions could only arise regularly upon a suggestion filed by the plaintiffs in attachment here, on the returns of the defendant as garnishee, making claim to the property, or denying the right of Feldt. Nor is it necessary, perhaps to determine whether a garnishee can be divested of his possession by the sheriff' on serving an attachment, or should be left to make his return. That question would more properly arise on the trial of the prosecution for assault and battery. There can be no doubt, however, that in such case the sheriff would seize the goods at his peril — and if they should belong to another, or if the garnishee should have a lien upon them, entitling him to retain possession, the sheriff would be a trespasser, and the person in possession summoned as a garnishee, would be justified in resisting the seizure. Under the attachment Act the sheriff is not required to seize, nor is he justified in seizing the goods in the hands of a garnishee, making claim to them on his own behalf, or on behalf of another. The only purpose of the proceeding by attachment, is to compel tbe appearance of tbe absent debtor, as a party in Court, to answer tbe plaintiff’s action. And if tbe goods attached as tbe property of tbe debtor, turn out to' belong to tbe person in possession, or to a stranger, there is an end of tbe action. If it be held that tbe sheriff is required to seize tbe goods, and if that power be considered in connection with the power to sell in certain cases, and tbe provisions for paying over tbe proceeds to tbe plaintiff, then we have a new and dangerous species of summary jurisdiction, where execution precedes judgment — where the plaintiff first obtains satisfaction, and then proves bis debt; tbe garnjsbee, too, from whom tbe property has been wrested, after such a sale, and payment to tbe plaintiff, comes in with bis return and claims title in himself or another, and after proving bis right, is left to bis remedy against tbe plaintiff to recover for property which tbe sheriff bad no right to seize.

The several provisions of the Act in relation to the garnishee, lead to the same conclusion; the attaching of any part in the name of the whole that is in the garnishee’s bands; the summons to appear and disclose what be bath in bis bands, to which the absent debtor bath any claim; bis liability in case of default to have judgment and execution awarded against himself — all contemplate that the garnishee is to remain in possession; and as the Act provides also in case be has any demand of bis own, where goods are attached in bis bands, that be may file a declaration, and, on obtaining judgment, be allowed a preference, it would seem superfluous and unfair to deprive him of the possession of the goods.

On the other question raised, there can be no doubt that a Judge at Chambers may issue a warrant for any offence, and on the party being brought before him and examined, if be be satisfied that no offence has been committed, be may discharge the prisoner without delay — or on good cause before arrest, withdraw bis warrant, or direct the officer to forbear. But what seems extraordinary in this proceeding is, that on the application to withdraw the warrant, or to discharge it for what seems to us would have been good cause to discharge the defendant if be bad been arrested, an order should have been made to deliver the goods to the sheriff, and that the defendant should have been attached for a contempt if be did not deliver them. We are sure that this order was inadvertently made by the venerable magistrate, whose judgment we are considering. The only power he could have exercised was to commit or bail the defendant, or to discharge him altogether, on being satisfied that no offence was committed. It was not competent for the judge to determine the questions arising on the regularity of the attachment in New York, the lien of the attachment here, or the right of the defendant to retain possession of the goods. Beyond the bearing of these questions on the assault and battery, any order made by his Honor in relation to the goods, was extrajudicial, and must be set aside. The order of the Judge at Chambers, of the 18th April, is accordingly set aside; the goods having been sold, as we understand, any further order is unnecessary. The rights and liabilities of the parties must be left for determination in the proper form and before the proper tribunal, without further indication of the opinion of the Court, on the questions which may arise.  