
    KREHMER VS. SMITH.
    Where a debt is attached, a verdict against the garnishee for a specified amount is good. In such case it is unnecessary to find what goods are in the hands of the garnishee, and their value.
    Where the garnishees claimed that a debt due in the future was invalid on account of a failure of consideration; the question is for the jury.
    Error to Common Pleas of Schuylkill. County. No. 134 July Term, 1878.
    The facts of the case appear in the charge of the court, per
    Walker, J.
    This case is an attachment execution under the act of 13 June, 1836, the writ is against the defendant the New York and Schuyl-' kill Coal Company, and Samuel G. DeTurk, Peter Krehmer and Benjamin Hummel are summoned as garnishees. The issue ypu are called upon to try is to find out what goods or effects or money (if any) were in the hands of Mr. DeTurk, Krehmer and Hummel the garnishees, or either of them at the time the attachment was executed or afterwards came into their possession, belonging to the defendant, and the value thereof.
    The garnishees have severally pleaded nulla bona that is that they have no goods in their hands, and this throws the burden of proof upon the plaintiff to show what goods, effects or money are in their hands or either of them to answer the plaintiffs.' attachment. [Caldwell vs. Coats, 28 P. F. S.) 312.] In an issue like this the plaintiffs are'required to make out an indebtedness at least sufficient to enable them to recover in an action of assumpsit.
    In an attachment execution the plaintiff is placed in the position and acquires the rights of his debtor as regards his garnishees, and after an answer filed and an issue joined the same presumption at law arises upon the trial from any particular evidence as if there had been no attachment, and the suit had been by the creditor of the garnishees against them the said garnishees, [Fessler vs. Ellis, 4 Wright, 248,] or in other words the attaching creditors, Smith & Wetzel, stand in the shoes of their debtor, the New York and Schuylkill Coal Company, and any equities that can be set up against the New York and Schuylkill Coal Company, are equally available against the plaintiffs the attaching creditors; that is Smith & Wetzel; [Patton vs. Nelson, 10 C., 299; Strongs Ex. vs. Bass, 11 C., 333.]
    
      An attachment execution interferes in no way with any rights of the garnishees but leaves them all the rights of set-off, defalcation or defence, incident to the relations existing at the time of service. [1 Wright, 491.]
    The plaintiffs in this case have offered in evidence a judgment against the New York and Schuylkill Coal Company, in their favor for $2,858.85 obtained on the 23rd of September, 1867. This writ of attachment was issued on the 11th of November, 1867, and served on the garnishees on November 15th, 1867, and would bind all the goods and effects in their hands at the time of the service and afterwards, belonging to the New York and Schuylkill Coal Company.
    The plaintiffs have also offered in evidence two written agreements, one dated the 3rd of April, 1867, and the other dated the 5th of August, 1867, made between the New York and Schuylkill Coal Co., and Peter Krehmer, for the privilege of cutting timber for five years from the dates of agreements on certain • lands in Washington township, in this county. The consideration of the first agreement is $1,500 of which we think the evidence showm $700 was paid upon account, and the second is for $1,250, on which there was paid $400, and the balance was to be paid on the first day of August, 1868.
    Mr. DeTurk swears that his agreement has been lost or mislaid; that he has made search for. it, and that it was for $1,250, on which there was $600 paid. This witness stated that his agreement'was almost similar to the one offered in evidence.
    The plaintiffs’claim that as the balance of the instalments upon these agreements were due on the first of January and first of. August, 1868, that the attachment- would -cover and bind this mone}' in the hands of the garnishees, and that they would be entitled to a verdict for this money; on the other hand the garnishees contend that they have overpaid for all the timber they received, and have shown by. Mr. Pratorius, the agent of the Company that Mr. Krehmer paid $1,100 on his . agreements, and that Mr. DeTurk paid $600; that on the 12th of May, 1868, the sheriff sold out the company .under the mortgage of 18th of September 1866, and delivered the deed on the 4th of June, 1868, to the purchaser, and that he as such agent gave these, parties notice on the 20th of August, 1868, to stop cutting timber on the tract leased; that upon reciving such notice they did stop cutting and hauling timber, and that the value of the timber taken away did not exceed in value the amount of the money paid to the Company upon these leases.
    The garnishees who are competent witnesses under the Act of Assembly substantially testify to the same facts, and as the facts have been fully commented upon by the counsel for the plaintiff and defendant, it is unnecessary for the court to review them in detail. The garnishees testified that they owed the company nothing, and that they did not take away more than half the timber, and their counsel contend that the act of the company in stopping the work was a disaffirmance of the lease, and upon a settlement of their accounts they would not owe the company anything.
    The jury will remember that the instalment of $650 on Peter Krebmer’s second agreement, did not fall due until August 1st, 1868, and after the sheriff's deed of the 4th June, 1868,- [11 P. F. Smith, 19.] The sole question then is, were there any goods or effects or money in any of the garnishees hands belonging to the defendant at the time of the service of the attachment or after-wards, and if any, what was their value. This under all the evidence in the case the jury must determine, and find their verdict accordingly; if there were none, then your verdict should be for the garnishees; whatever conflict there is in the evidence the jury must reconcile if they can, and if they cannot reconcile it, they will then say which they will believe. It is a question for the jurj' under all the evidence to find out the amount of money in the hands of the garhishees, if any, and to find the value of such money or effects.
    You must bear in mind that these plaintiffs stand in the shoes of the New York and Schuylkill Coal Company, and can recover only what the company could recover, if they had brought suit upon the agreements, immediately after the first installment fell due.
    Defendants below requested the Court to charge that “the contracts of the parties in this case for a period of five years were entireties, and the eviction in consequence • of the default of the New York and Schuylkill Coal Company suspended all rights under the same as to them and the plaintiffs cannot recover.” Answer: We cannot say that the plaintiffs cannot recover, for that would depend upon the fact whether at the time of the service of the attachment or afterwards there were any goods, effects or money in the hands of either of the garnishees belonging to the New York and Schuylkill Coal Company. This must be determined from the evidence.
    Defendants also put the following point:
    “At the time of the service of the attachments on said defendants there were no instalments due under the agreements in evidence, and there was no attachable debt, as the interest under the agreement was an interest in the land.” The Court reserved this question, but aftorward ruled in favor of plaintiffs below. On February 6, 1878, the jury found in favor of plaintiffs and against Hummell and Samuel G-. DeTurk for $325, and against Peter Krehmer for $400. Defendants then took a writ of error.
    
      F. W. Bechtel, Esq., for plaintiff in error
    argued that the verdict and judgment is erroneous and bad, because the jury did not find what goods were in bands of garnishees and their value. Act June 16, 1836, P. Laws 767; P. Dig. 744 Pl. 34. June 13, 1836, P. Laws 583, Sect. 58, P. Dig. 826, Pl. 23; Layman vs. Bean, 6 Wharton 184; Hampton vs. Matthews, 2 Harris 106; Poor vs. Colborn, 7 P. F. S. 415; Bouslough vs. Bouslough, 18 P. F. S. 495; Bonnafon vs. Thompson, 2 Norris 460.
    The interest of the Coal Company in the hands of the defendants was real estate and not attachable. Boults vs. Mitchell, 3 Harris 371; Greber vs. Kleckner, 2 Barr 289. The sale under the mortgage divested the rights of the garnishees in the timber. McCall vs. Lenox, 9 S. & R. 302. Bury vs. Sieber, 5 Barr 431; Menough’s Appeal, 5 W. & S. 432; Bank vs. Ege, 9 W. 436. Consequently the obligation to pay the Coal Company was ended. And as the attaching creditor only occupied the place of the Coal Company he could not recover. Fessler vs. Ellis, 4 Wr. 248; Patton vs. Nelson, 10 Casey 299; Strong vs. Bass, 11 Casey 333; Myers vs. Baltzell, 1 Wright 491. Here there was nothing due at the time, and the future indebtedness was invalid because of the failure of consideration, and Kuffer vs. Ehler, 6 Harris 388, and Fulweiler vs. Hughes, 5 Harris 440, do not apply.
    
      
      James Ryon and W. F. Shepherd, Esqs., contra,
    
    argued that the verdict was not erroneous; Flanigin vs. Wetherill, 5 Wh. 280; Bonnafon vs. Thompson, 2 Norris 460. The amount due by garnishees was simply a debt and was attachable; Brady vs. Grant, 1 Jones 361; Goshenams vs. Hostetter, 6 Norris 418; Sutter vs. Ling, 1 Casey 466. Garnishees were allowed to give in evidence the value of the timber still standing and thereby reduced the amount which they were bound to pay, and this was all the allowance they could claim; Cathcart vs. Bowman, 5 Barr 317; Haverstick vs. Erie Gas Co., 5 Casey 254; Brown vs. Dickerson, 2 Jones 372; Filey vs. Moyers, 7 Wright 404. The notice from the purchaser was not equivalent to an actual ouster which is necessary; 2 Sugden on Vendors, 514-522; Ellis vs. Welsh, 5 Mass. 246; 2 Greenleaf, Ev. Sect. 243.
   The decision of the lower Court was affirmed on May 5, 1879, in the following opinion, per

Sharswood, C. J.:

These were attachment executions in the Court below upon a judgment against the New York and Schuylkill Coal Company. The question of the indebtedness of the garnishee's to the defendant in the judgment was essentially a question of fact submitted by the learned judge below to the jury with instructions of which the defendants in error had more right to complain than the plaintiffs. The assignment of error in the verdict, and judgment because the jury did not find what goods and effects if any were in the hands of the garnishees at the time the attachment was executed or afterwards, and the value thereof we think inapplicable' in a ease of this character where the property attached was a debt due by the garnishees. Flanagin vs. Wetherill, 5 Wharton 280; Bonnafon vs. Thompson; 2 Norris 460.

Judgment affirmed.  