
    COHEN, Garnishee of MAZALSKI, vs. WOLFFE & HOPPE.
    A debtor in failing circumstances transferred to one of his creditors tw,o stocks of dry goods to secure his debt. Upon an inventory of the good3 at their prime cost the amount-greatly exceeded, (he debt. They were sold by the creditor at auction and the proceeds, of the sale fell sjiprt of the debt. Held,
    That if the creditor made no unnecessary sacrifice of the goods he is accountable only, for the proceeds obtained through the auction sale.
    APPEAL, FROM THE'ST. LOUIS COURT OF COMMON. BLEAS.
    Hart-&, Reber for appellant.
    
      1st That the fipding of the jury was not warranted by the evidence.
    2d. As the affirmative of the issues was on th.e side of the plaintiffs, íhey, must be held to, show with reasonable certainty that the defendant was chargeable, and not only so, they must also,sho.w that he was chargeable with a definite amount, and for failing to show either-of these things, it is contended with confidence that they should have failed in their action,. Chitty’s PI. p. 386 ; Harvey and others assignees of Bank & Joseph vs. Arclibold et al, 3 B. ‡ L. 626 ; (10 Eng. Com. Law 203.)
    3d. Supposing Cohen acted in bad faith (a-supposition however not warranted by the-facts) in not disposing of tbe goods to the best advantage, and eo did not realize from them, more than enough to pay himself, it is submitted that tbe claim which Mazalski might have-bad against him on that account, is not such a, “ credit’’ as could be attached or garnisheed.
    4th. It is submitted that Mazalski had no right to sue Cohen at the time he was summoned! as garnishee, and that his creditors could not be in a better position than he w,as. Jewett vs. Bacon 6 Mass. CO; 2 do. 503.
    5th. It is submitted that the justice has no jurisdiction between the plaintiff and appellee in this case, and the garnishee Cohen appellant, for it clearly appears from the denial of the answer of Cohen, that the appellant is charged by the appellees with having in his hands- and under his control goods and monies to.a much larger amount than the jurisdiction of the justice would authorise him to hear and determine, and although the justice had lawful jurisdiction between the original parties to this suit, it being predicated on a note, yet if the issue-between a plaintiff' and a garnishee goes to an amount larger than ninety dollars ($90) and that upon an open account or in any other way not embraced in the introductory part alluding to jurisdiction on bonds and notes, of the 1st sec. article 2d, attachments, Revised Code,it is. submitted that the justice loses by law any further jurisdiction and the plaintiffs must seek, their remedy in the circuit court against the garnishee Cohen.
    Revised Code, attachment, art. 2 sec. 1st, 29th, 47th, and 48th.
    Field & Hall for. appellees.
    The appellees insist, that the court below committed-no error in the instruction given, antis that the jury found in accordance with the instruction, and the evidence in the case.
    II. sufficiently appears from the evidence that the garnishee had received from Mazalski; goads to a large amount, for which he was to account after paying his own debt. That his. own debt had been paid and that property still reipaiiied in his hands, after paying his own debt, and for this amount he was liable to Mazalski and of consequence to the creditors of Mazalski.
    The principle seems so plain as to require no authorities to be cited to support it.
   McBride, judge,

delivered the opinion of the court.

Wolffe and Hoppe sued one Mazalski by attachment before a justice of the peace, and summoned Cohen as garnishee, who appeared and answered the interrogatories filed against him, in which he denies any indebtedness to Mazalski: issue was taken on the answer, atrial was had, and verdict and judgment in favor of the garnishee, Cohen, when Wolffe & Hoppe appealed to the court of common pleas.

Upon the trial in the court of common pleas, evidence was given to establish a fraudulent sale and conveyance of a stock of goods in Dubuque and another in Galena, by Mazalski to Cohen; or, if the sale was not fraudulent, the goods were worth greatly more than the sum due from Mazalski to Cohen.

The garnishee, Cohen, introduced evidence to prove that the sale of the goods to him was a bona fide sale, to satisfy an existing demand due him by Mazalski, and that from the sale of the goods he did not realize a sufficient sum to pay his debt. The evidence was somewhat conflicting.

The jury found for the plaintiff; the garnishee moved for a new trial, which being overruled, he excepted and appealed to this court.

The only question of law in the case arises out of the following instruction given at the instance of the plaintiff.

“If the jury find from the evidence that the defendant, Cohen, received of Mazalski more than was sufficient to pay the indebtedness of Mazalski to said Cohen, and that said Cohen was to account to the said Mazalski for the balance of said goods after paying said Cohen his debt, the jury will find for the plaintiff the amount of their debt, if such amount is now in the hands of said Cohen.}>

To make the point involved more intelligible, it is necessary to refer to some of the leading facts in the case.

It appears from the evidence that Mazalski was. indebted to Cohen, and, being in failing circumstances, conveyed two stocks of dry goods, one at Galena and the other at Dubuque, to Cohen, to secure the debt which he owed him. Cohen took an inventory of the goods, which at their prime cost amounted to considerably more than his debt; he then removed the goods to St. Louis, where he sold them at auction; the amount realized from the sale fell short of paying his debt against Mazalski.

The instruction above given assumes that Cohen is liable for the value of the goods received by him without regard to the amount realized from the auction sale. Now if the general practice be, as as we suppose it is, to sell such goods at auction; and if, in doing so, Cohen acted in good faith, making no unnecessary or uncalled for sacrifice of the goods, he can only be held accountable for their proceeds, obtained through the auction sale. This, we say, is the measure of his liability, on the assumption that the transfer of the goods to him was made bona fide, and their sale fairly conducted. If Mazalski was not indebted to Cohen, or if the transfer of the goods was made in fraud, or the goods xxnnecessarily sacrificed, then Cohen would be liable for their value at the time he received them.

Therefore the the judgment of the court of common pleas ought to be reversed, and, the other judges concurring, the same is reversed, and the cause remanded to that court for a new trial.  