
    
      Jacob Cohen ads. Levi Sherman.
    
    1. A garnishee in attachment having returned that he had no other property or assets of the absent debtor in his possession or power, except certain choses in action mentioned, a suggestion was filed alleging that at the time the writ of attachment was served upon him, he had in his possession, besides what was embraced in his return, certain slaves, the property of the absent debtor; and also certain houses and lots falsely alledg ed in the return to have been conveyed to him by the absent debtor, in good faith, for valuable and adequate consideration. On the trial of this issue the jury found the conveyance of the houses and lots fraudulent and void; that the absent debtor had fraudulently conveyed to the garnishee certain slaves sold by him before the lodgment of the writ of attachment to certain persons for specified sums of money. Judgment entered up on the verdict against the garnishee, and execution issued for the aggregate value of the slaves found to be in his hands, and the costs of the issue.
    2. It was held that the execution was illegal, and that it was properly set aside by the court below, except as to the costs, to be levied only of the goods of the garnishee.
    3. A plaintiff’s suggestion contesting a return, besides the allegation that at the time of the attachment the garnishee had in his hands certain monies, goods, or other property of certain value, not contained in the return, should charge such increase by interest, hire, damages or other matter subsequent to the attachment, or such change by sale, destruction, or other occurrence subsequent to it, according to the circumstances of the case, as may direct the jury to inquire what, at the time of the verdict, should be added to the return.
    4. The verdict, by reference to the suggestion, or independent statements, should precisely ascertain the extent of the liability to result from it.
    5. The verdict on the judgment and interest on it thus becomes like an amendment of the return made on the day of the verdict.
    6. The attachment Act does not in such case authorize ajd. fa,, against the garnishee for the matter found by the jury, any more than for that admitted by the return, or plaintiff’s whole debt.
    7. It is left for the court, by an order for payment of money into court, or an order for sale, or other suitable order according to the case, to give to the plaintiff the benefit of a return amended by a jury, as of an original return, and by attachment for contempt to compel obedience to its order.
    
      Before Butler, J. Charleston, January Term, 1842.
    This was a rule on Levi Sherman, plaintiff in attachment, in the case of Levi Sherman vs. Judah Barrett, at Columbia, to shew cause why the judgment and execution of fieri facias, issued against Jacob Cohen, garnishee, should not be set aside as irregular and illegal. The facts are as follows : In February, 1840, Levi Sherman lodged an attachment writ against Judah Barrett, in the office of the Sheriff of Richland district, and on the 20th March, 1841, obtained and entered up judgment against the-absent debtor, for $17,674 38 cts. with interest from March 20, 1841, and $42 50 cts. costs. Jacob Cohen was served, as garnishee, with a copy of the writ of attachment, and returned that he had no other property or assets of the absent debtor in his possession or power, except certain choses in action, mentioned in his return. The plaintiff’in attachment contested this return, and alleged it to be false, in the following particulars, among others : “1. That the said Jacob Cohen, the garnishee, had in his possession, at the time when the said writ of attachment was served upon him, property of the said Judah Barrett, the absent debtor, other than that embraced in his return, to wit, sixteen slaves.” “2. That he had in his possession the houses and lots, situate in Columbia, belonging to Judah Barrett, falsely alleged in his said return to have been conveyed to him by the said Judah Barrett, in good faith, and for valuable and adequate consideration.” On these, and the other charges in plaintiff’s suggestion, falsifying the return, the garnishee, Jacob Cohen, joined issue, and on the trial of the issue, the jury found as follows :
    “We find, that the conveyance of the houses and lots is fraudulent and void. We further find, that fifteen slaves, viz., Nancy, Maria and child, Sarah, Guy, Alick and Charles, of the value of $3000; Harriet, of the value of $300; Matilda, Amaritta, John and Andrew, of the value of $1200; China and her two children, of the value of $1200 ; were fraudulently conveyed by. Judah Barrett to Jacob Cohen, and that they were, by him, before the lodgment of the writ of attachment, sold for the sums set down as their value, to Lewis Levy, Thomas Davis, N. B. Hill, and John D. Frost.”
    On the verdict, judgment was entered up at Columbia, on the 24th July, 1841, as follows.
    
      “Therefore, it is considered by the said court, now here, that the said conveyance of the said houses and lots, in Columbia aforesaid, made by the said Barrett to the said Cohen, is fraudulent and void, and the said houses and lots be adjudged and held liable for the payment of the debts of said Barrett; and also that the said conveyance of the said fifteen slaves, made by the said Barrett to the said Cohen, was fraudulent, and that the said sum of $5700, in the hands of said Cohen, be adjudged and held liable for the payment of the debts of said Barrett; and it is further considered by the said Court, now here, that the said Sherman do recover against the said Cohen, the sum of $5700, aforesaid, and one hundred and'fifty-five dollars and seventy-three cents, for his costs and charges,” <fec,
    On this judgment, execution was sued out, and lodged in the Sheriff’s office, for Richland district, December 21st, and in the Sheriff’s office, for Charleston district, December 24th, 1841, commanding the said sheriffs, “that of the goods and chattels, houses, lands and hereditaments and real estates of Jacob Cohen, they cause to be levied the sum of $5855 73 cts. which Levi Sherman, the plaintiff, lately recovered against the said defendant, as well for his certain damages by him sustained, as for his costs and charges,” (fee.
    Mr. Yeadon, for defendant, moved to set aside the judgment and execution, as irregular and illegal, on the following grounds,
    1. That the verdict of the jury did not sustain the first allegation in the suggestion’ — the allegation being, that the garnishee, at the time of the service of the tvrit of attach-merit on him, had sixteen slaves of the absent debtor in his possession; and the finding of the jury being, that the garnishee had sold fifteen slaves, (fraudulently conveyed to him by the absent debtor,) for certain specified sums, “before the lodgement of the writ of attachment,”
    2. That the verdict, at most, only found that the garnishee had the proceeds of said slaves in his hands, but found no debt or damages for plaintiff, (and such finding would have been surplusage,) and, therefore, is no warrant for the judgment and execution, against the garnishee, for debt or damages in favor of plaintiff.
    3. That the garnishee having made a return on oath, the verdict of the jury is confined to the truth or falsity of the return; and although the issué on the return was found against the garnishee, judgment and execution can legally go against him for the costs of the issue only; and judgment and execution against the garnishee, for the debt due by the absent debtor, is irregular and illegal. P. L. 188. Westmoreland vs. Jippins, 1 Bailey, 514.
    4. That even if execution could go against Cohen, as a garnishee in default, it could go against “his proper goods” only, and not against his “houses, lands, hereditaments and other real estates.” Also, Pringle vs. Carter, 1 Hill, 53. P. L. 188.
    
      Opinion of the Presiding Judge.
    
    I shall not confine myself to the specific grounds of exception to the execution in this case. The jury have found that Barrett had conveyed to Cohen, fraudulently, certain negroes, which Cohen had sold before the lodging of the attachment. This is certainly not a finding on the specific allegation, that Cohen had,- at the time the attachment was lodged, certain slaves in his possession, fraudulently conveyed, <fec. The finding established the primary object of the allegation, to wit, that Cohen had no right to the property conveyed to him by Barrett; and that the proceeds of the property sold, was liable to the attaching creditor’s debt. It exposed Barrett’s property, held in the name of Cohen, to the operation of the judgment of plaintiff. But that judgment could not reach any thing but tangible property, as a judgment against Barrett. As it regarded the money in the hands of a third person, it could not be reached by a fi. fa. on the judgment; and the fact that Cohen was a garnishee can make no difference. He was not subject under the attachment act to any judgment against him, after he had made a return as garnishee. Where a garnishee fails to appear, or having appeared, fails to make a return, he renders himself liable to a judgment for the debt against the absent debtor. But where he makes a return which is satisfactory, the effects returned become liable to the judgment of the attaching creditor; or where he makes a return which is falsified, the property found in his possession becomes, in like manner, subject to the operation of the judgment against the absent debtor. In neither case is the judgment against the garnishee ; nor in either case does the act authorize a judgment against him. I am of opinion, however, that where it is ascertained that he has money in his hands, which he claims as his own, but which turns out to belong to the absent debtor, the money thus situated may be the subject of a special order of the court, requiring it to be paid into court. This should not be done, however, without serving the garnishee with notice to shew cause why he should not pay it into court. After such proceeding, founded at least in prudence, the court might make an absolute order, commanding the money to be paid into court; and on failure of the party’s complying with the same, he should be attached, as in all other cases of contempt. Besides this, (in my view,) fatal objection to the execution in this case, there are others. One is, that it is directed against the lands, <fec. of Cohen, as well as his goods, whilst the Act of the Legislature only authorizes a judgment against’ the goods. The execution is only good against Cohen for costs, to be levied of his goods. To that extent it will be sustained, according to the case of Westmoreland and Tip-pens, noticed in one of the grounds of objection.
    It is, therefore, ordered that the execution in question be set aside as illegal and informal, except as to the costs; and that it be made good as to them, to be levied only of the goods of Cohen, the garnishee.
    Paintiff appealed, on the following grounds.
    1. That his Honor erred in ordering the execution in question to be set aside as illegal and informal, except as to costs, inasmuch as that form of proceeding was the only remedy to enforce and carry into effect the verdict of the jury; and,
    2. Because the verdict being against the garnishee, falsifying his return, and assessing the value of the prpperty unduly obtained by him from Judah Barrett, an execution was the ^proper remedy thereon, to compel the garnishee to pay -fhe money.
    3. Because the garnishee having sold the negroes before the attachment lodged, the plaintiff could not levy the execution against the absent debtor on them, the purchasers holding the negroes for valuable consideration, without a lien on them, and without notice.
    4. Because the decision of his Honor was, in other respects, erroneous.
    
      DeSaussure & Blanding, for the motion.
    
      Jfeadon & Bailey, contra.
   Curia, per

Wardlaw, J.

This appeal of the plaintiff requires the court to consider only whether the fieri facias sued out by him was regular, and should be permitted to operate beyond the extent to which by the order of the circuit Judge it has been limited. Fieri facias for the plaintiff’s whole debt against the goods of the guarnishee who has failed to make any return, is expressly authorized by our attachment Act, the default being considered as an acknowledgment of assets of the absent debtor in the garnishee’s hands, sufficient to pay whatever the plaintiff may establish. But a return denying anything in hand, or admitting only a limited amount, excludes such acknowledgment ; and liability for the whole debt would often be too heavy a penalty for an error in the return. The provisions of the attachment Act, and the cases of Westmoreland vs. Tippens and Pringle vs. Carter, accordingly shew that, a return falsified by a verdict, is to be treated as if the garnishee had voluntarily, by leave of the court, amended his return by the insertion of what the jury found, with only the difference of the costs in the two cases. The plaintiff’s suggestion contesting a return is required to set forth the particulars complained of; and besides the allegations that at the time of the attachment the garnishee had in his hands certain monies, goods or other property of certain value, not contained in the return, should charge such increase by interest, hire, damages, or other matter subsequent to the attachment, or such change by sale, destruction, or other occurrence subsequent to the at^rchment, according to the circumstances of the case, as may direct the jury to enquire what, at the time of the verdict, should be added to the return ; and the verdict, by reference to the suggestion or independent statements, should precisely ascertain the extent of liability to-result from it. The verdict on the judgment, and interest on it, thus becomes like an amendment of the return made on the day of the verdict; and as the attachment Act contains no authority for a fieri facias in such case against the garnishee for the matter found by the jury, any more than for that admitted by his return, or for the plaintiff’s whole debt, it is left for the court, by an order for payment of money into court, or an order for sale, or other suitable order according to the case, to give to the plaintiff the benefit of a return amended by a jury as of an original return ; and by attachment for contempt, to compel obedience to its order/ The order of the circuit court setting aside the plaintiff’s execution in this case, was then correct, and the motion is dismissed.

Richardson, O’Neall, Evans, Frost, and Butler, JJ. concurred.  