Parkhurst v. Northern Central Rail Road

Goldsborough, J., delivered the opinion of this Court: This was an attachment on warrant, issued out of the Superior Court of Baltimore city, at the suit of the appellants, against the goods, chattels, rights, credits, &c., of the Pittsburg, Port Wayne & Chicago Rail Road Co., upon a judgment obtained by tbe appellants against the last named company, in the District Court and Court of Common Pleas for Allegheny county, Pennsylvania, and laid in the hands of the appellee. The appellee appeared as garnishee, and pleaded that the defendant was never indebted as alleged, and nulla bona. Upon interrogatories propounded by the appellants, the appellee admitted rights and credits of the defendant ⁴⁷⁸ in its hands more than sufficient to cover the claim of the appellants. These rights and credits arose from the sale of through tickets, under an arrangement by virtue of which rail road companies have authority to sell through tickets, reporting the sales monthly, and holding the balance subject to draft at sight.

The appellee, as garnishee, however, relies for defence upon certain mortgages mentioned in the record, by one of which it appears that ‘ ‘all the property and effects of the defendant, including its income, was, at the time when the attachment was laid, under mortgage to John Furgusson and Thomas E. "Walker, of the city of New York.” At the trial of the cause, it was admitted and ag-reed that the debt, for the recovery of which the attachment in this case was sued out, is due to the plaintiffs by the defendant, for oil furnished by the plaintiffs to the defendant, and by the defendant used in the working and use of their rail road. The appellee offered in evidence the deeds above referred to, especially the deed from the defendant to John Furgusson and Thomas E. Walker, executed on the 1st day of January 1857. The appellants then presented the prayer mentioned in the record, which was rejected by the Court; to this rejection the appellants excejrted.

Before reviewing .the action of the Superior Court in rejecting the appellants’ prayer, we will notice the point made by the appellee, that “it does not appear by the bill of exceptions that the cause of action was submitted to the Court or jury, and therefore the Court could not declare the conveyance no bar to a recovery, when there was nothing to recover on.” It must be observed, that the prayer is not an affirmative one, asking the Court, from the evidence set out in the prayer, if found by the jury, to instruct them that the ⁴⁷⁹ plaintiffs are entitled to recover. On tbe contrary, it was an exercise of tbe privilege of the plaintiffs, to raise a question of law arising out of the facts enumerated, and to demand an opinion on it, (see 1 Gill, 143 ,) not as conclusive of Hie plaintiffs’ right to recover, hut as