Flanagin v. Wetherill

| Pa. | Feb 15, 1840

The opinion of the Court was delivered by

Sergeant, J.

In Englebert v. Blaujot, (2 Wharton, 240,) there was an assignment of certain specified property, in trust to pay the assignee and three other creditors, and afterwards to return the surplus to the assignor. It was held, that an assignment in trust for the use of creditors, is within the act of the 24th of March, 1818, though they are fewer than the whole number. That case was much stronger than this, where one instrument provides for a certain class comprising, for aught we know, the whole then existing: and the other instrument is in trust for all creditors who shall release. It is sufficient that it is for creditors, to bring it within the reasons for the passage of the act of the 24th of March, 1818.

2. Interest follows the judgment against the defendant. Such judgment in a foreign attachment, it is true, is not conclusive to every purpose; but as to the property attached and ultimately made liable, it is conclusive as a proceeding in rem: and the scire facias and execution go for the whole amount due on the judgment, including interest upon it.

3. The verdict is not correct in form. The issue on nulla bona is, whether the garnishee had goods and effects of the defendant in his hands or not: and the verdict should respond to it. The ñ8th section of the act of 13th June, 1836, directs that the jury shall find what goods and effects, if any, were in the hands of the garnishee at the time the attachment was executed or afterwards, and the value thereof. But this is a mere defect of form. The property in the garnishee’s hands was money, and the Court might have moulded the verdict into shape after it was rendered. We are bound to consider it as so amended, rather than reverse the judgment contrary to the merits of the case. No request was made by the garnishee to the Court to instruct the jury to find the verdict in due form. If that had been done, and the instruction had been refused, or erroneously given, it might be error. No injury can result from the verdict if it is substantially a proper finding. In Strohecker v. Drinkle, (16 Serg. & Rawle, 38,) a general verdict for the plaintiff on the pleas of non assumpsit, plene administravit, and debts of a higher nature, was held to be substantially a finding of assets to the amount of the demand. So in Easton v. Worthington, (5 Serg. & Rawle, 130,) it was held, that where in replevin the goods are delivered to the plaintiff, and the defendant pleads property and it is found for him, the verdict ought not to be for damages for the value, but a general finding for the defendant and damages for the detention, on which there is judgment pro retorno habendo and for the damages: and if there be a general verdict in such case, finding the value in damages and also interest, the Court on error brought will reverse the judgment entered, and give a correct judgment according to the substance of the finding of the jury. The same doctrine is recognised in Huston v. Wilson, (3 Watts, 287.)

Judgment affirmed.