Devries v. Buchanan

Tuck, J., delivered the opinion of this court. In the progress of this cause, the plaintiffs, after the garnishee had pleaded nulla bona, filed the following interrogatory to be answered by him. “Did you or did you not from time to time receive money, the proceeds of goods which -were in the store of H. G. Buchanan on or near Wills Creek, and did you or did you not receive from time to time, other moneys or effects of said H. G. Buchanan? If yea, state the several amounts received, the persons from whom received, and the time when received.” To this interrogatory the garnishee, protesting that he was not bound by law to answer'further, or in any other manuer, said that he had not, at the time of the service of the attachment, nor at any time since, nor has he now in his hands or possession or under his control or charge, any goods, chattels, moneys, credits or property, of H. G. Buchanan, nor was he at the time of the service of the writ, or at any time since, nor is he now in any manner, indebted to him in any sum of money whatever. This was accompanied by an offer to answer further, if required by the court.

The plaintiffs excepted to the sufficiency of the answer, as not responsive to the interrogatory, which being overruled by the court, and the judgment rendered against them, the plaintiffs appealed. The object of placing the interrogatory in this form, as we were informed at the argument, was to obtain a discovery as to property and money supposed to have been received by the garnishee, before the service of the attachment: and the ²¹⁴ appellants’ counsel contended, that where a garnishee in his answer admits having received property of the debtor, at any time before service of tlfe writ, he cannot, in the answer, discharge himself from the effect of the process, by stating how he has parted with the property, and thus enable himself to say that he had none such at the. time of making the answer. The act of 1795, ch. 56, sec. 5, authorizes the plaintiffs to exhibit interrogatories to the garnishee, who shall answer each, and every thereof, “touching or concerning the property of the defendant in his possession or charge, or by him due or owing at the time of serving such writ of attachment, or at any other time;” and ifhe shall neglect or refuse so to do judgment may be entered against him. Upon this clause the point in argument was, whether the words, “or at any other time,” related, to property obtained by the garnishee, before as well as after the service of the writ.

It has been the practice to condemn property or credits in the garnishee’s hands at the time of the trial, ( 7 Md. Rep., 296 ,) although the replication to the plea of nulla bona, confines the issue to the time of the service of the pro-, cess, (2 Ev. Har., 165,) and this is the practice in England,, whence our attachment law appears to have been taken. Locke on Attachment, 68; 83, (79 Law Lib. Davidson vs. Beatty, 3 H. & McH., 609 .

It is clear that the garnishee cannot be held liable for that which he had, but parted with before the commencement of the proceedings, if he has done so in good faith. But he may not be in actual possession, and yet be clothed with' the legal right; and, as points of law may arise out of the circumstances attending his possession and disposal of the property, it may be necessary to a correct understanding of the subject, that these should be exposed, and the question here, is whether the garnishee can be called on to disclose them. It cannot be denied, that the plaintiff may by other means,‘show that the garnishee had effects of the defendant, or was indebted to him before the writ issued, and leave him to discharge himself as he may be able. Indeed there may be, in most cases, no other mode of proving property in his hands at that time.

That certainly would be an inquiry “touching or concerning the property of the defendant,” in ²¹⁵ the garnishee’s hands at a time not embraced by the words of the act, as they are interpreted by the appellee’s counsel. And so he might call witnesses to prove such possession or indebtedness after the issuing of the writ, without resorting to the garnishee’s oath. The interrogatory and answer do not, of themselves, determine the liability of the party. Their object is to enable the plaintiff to use the garnishee as a witness; and the words