
    
      In Re Joseph D. Truxton, Sheriff.
    New Castle County,
    November Term, 1895.
    Garnishment. Contempt. Sheriff.—An attachment against a sheriff for refusing to answer as a garnishee, will not be issued where it does not clearly appear that the balance in his hands is to be paid to the defendant in the execution.
    This was a rule to show cause why attachment should not issue against Joseph D. Truxton, sheriff of Sussex County, for not answering a summons as garnishee.
    
      It appeared that partnership creditors of Morrow & Coulbourn had execution issued and levy made upon the partnership property, returnable to October 7, 1895, and that Frank W. Coulbourn and Joseph Coulbourn, creditors of individual members of the firm, had execution issued and levy made upon the same property at a later date than the above first named execution and levy, but returnable at the same term of court. At September term, 1895, in New Castle county, a partnership creditor obtained judgment in Newcastle county and had a testatum fieri facias issued to Sussex County, and at the October term in Sussex County several partnership creditors obtained judgment against the firm, issued execution and had attachment laid in the hands of Joseph D. Truxton, sheriff returnable to April 7,1866. Sheriff Truxton sold the partnership property on August 7, 1895, and made return to October term, for Sussex County, showing that all executions under which levies had been made upon partnership property before the day of sale were paid in full, and concluding as follows: “ Leaving a balance in my hands of $1,316.91 all costs deducted, which said sum being claimed by several persons as creditors of the defendant, I shall petition to the Superior Court for permission to deposit the same in said Court for distribution.”
    An attachment fieri facias against William H. Coulbourn, who was sued with James B. Morrow, was issued from New Castle County • returnable to the November term 1895, for that county upon which the following returns are made. “ Return summoned Joseph D. Truxton, sheriff of Sussex County as garnishee, October 19, 1895, at one o’clock P. M. sharp”
    [Signed] Rowland W. Joseph,
    
      Coroner of Sussex County.
    
    Joseph D. Truxton, sheriff, refused to answer and the rule to show cause why an attachment should not issue against him for not answering was granted.
    At the hearing it appeared that the coroner tendered and paid to the garnishee Truxton, fifty cents at the time of notice. It was objected that, mileage had not been tendered. The Court ruled that the “ fee ” necessary to be tendered did not include mileage.
    
      Peter L. Cooper, Whiteman, Hearn and Polk, for petitioner.
    
      Cullen and Boyce, for the respondent.
   After hearing argument the Court discharged the rule for the reason that it did not appear clear that the balance in hand was to be paid over to the defendant in the execution, and in that case alone would the petitioner be entitled to the attachment.  