| Ark. | Jul 15, 1840
delivered the opinion of the court:
The proceedings in this case are partly according to the practice in courts of chancery and partly according to the practice of courts of law. They are authorized and regulated by an act of the late Territorial Government, approved Nov. 7th, 1831. Ark. Dig. p. 344, sections 89 to 93.
It is contended, in behalf of the plaintiff in error, that the court below erred in refusing to dismiss and set aside the proceedings in this case on his first motion made for that purpose. The bare statement of the ground of that motion will be sufficient to prove its futility.
It is said that the writ was unauthorized by law, and therefore illegally issued; and further that the writ of garnishment was contrary to an agreement between the creditor, by his agent, and one of the original defendants. We will barely remark that, the writ issued in conformity to law, and that the agreement as set forth, is a mere nudum pactum. And such matter constituted no foundation for a dismissal of the suit.
It is further asserted that the court below erred in not dismissing the proceedings upon the fifing of the garnishee’s answer. The record does not show that any motion was made to dismiss, and even if there had been, the court could not have sustained it. The statute gives the plaintiff the right to deny the truth of the answer, and to empannel a jury to try the issues formed. Therefore, an action of garnishment does not go off like an injunction, upon filing an answer to the interrogatories put. The answer, in the present case, is sufficient to charge the garnishee, for it shows funds and available means placed in his hands by one of the judgment debtors, for the purpose of paying off the very debt, for which he was garnisheed.
The other grounds assigned for error, present a single question, arising out of the facts appearing in the motion and affidavit of the garnishee to dismiss and set aside the rule against him to account.
The levies made upon the property of James W. Walker were no extinguishment of the judgment even as to him. Because, on each levy, the property did not remain in the hands of the Sheriff, but was redelivered to the original judgment debtor, who was never deprived of the possession or use, but for a short time. And the Sheriff in redelivering the same acted in strict conformity to his duty; and of course no action accrued to the original judgment creditor on the levy upon the slaves seized in execution. If the Sheriff was liable at all, it was for failing to make a proper levy or legal return to the writ of venditioni exponas. The levies were no extinguishment or satisfaction of the judgment as to Joshua T. Walker or Simon T. Sanders. Nothing but actual satisfaction would release them. If Joshua T. Walker was not discharged from the judgment by the levies, then undoubtedly his garnishee, who admitted in his answer that he held available funds in his hands for the purpose of paying off the judgment, could not claim to be exonerated from its liability. If Joshua T. Walker was liable because there was no actual satisfaction of the judgment, of course, his property in the hands of his garnishee was likewise liable.
It is contended that the judgment was satisfied by a payment made to the Sheriff, by the receipt of John Trigg; agent of Bradley, and by the receipt of the bank notes, some silver, and one copper coin, in discharge of the execution.
It is clear to our minds that the Sheriff had no right to make any such return. There is no proof that Trigg was the authorized agent of Bradley to receive of James W. Walker a draft on E. Myrick, payable at sight in New New-Orlcans, for the sum of $2,000, in discharge of the judgment, or that the amount was ever, paid over to Bradley in satisfaction of so much of the judgment; consequently the Sheriff’s receipt or certificate on the venditioni exponas constituted no legal satisfaction of the judgment as to the garnishee. As to the funds paid, there is no proof or allegation that the Sheriff was authorized by Bradley, his agent, or attorney, to receive such funds. But it is in proof that Bradley’s attorney positively refused to receive them.
Whether or not the reception of these funds by the Sheriff operated as a discharge of so much of the judgment against James W. Walker, we do not feel ourselves called on to determine, as that point is not legitimately now before us; nor is it necessary for us to decide whether or not the Sheriff rendered himself liable to Bradley for a failure to make a proper levy, or for a false return upon the execution. Be that as it may, the reception of the bank notes did not discharge the other defendants, nor the garnishee, as their debtor. Because the reception was not an actual satisfaction of the judgment as to them or the garnishee. The true rule upon this subject is “ that when a levy under execution is made upon personal property of sufficient value to satisfy the execution, and the property 'so seized does not again come to the possession of the debtor, the levy is a satisfaction of the execution,” “ although the property is wasted or misapplied by the Sheriff.” “ But if the debtor again receives the goods levied on, there is no such satisfaction. The satisfaction dates from the time of the levy. So long as the property remains in the hands of the Sheriff or in other words, in custodia legis, the debtor has the general property in the goods, and does not part with it until the sale, for until the sale it is possible that he may again take the property.” “ Actual satisfaction of the debt or judgment by the sale of the property of one debtor or defendant is a discharge of the other debtor and defendants.’’ “ But when satisfaction is worked by the levy without sale, only the debtor or defendant whose goods are levied on is discharged, and his co-defendants remain still liable, because the creditor hath had no actual satisfaction of his judgment.”
The application of these principles, according to the view we have taken in the present case, clearly demonstrates that the garnishee was not exonerated or discharged from his liability by the levies. And even if the facts asset out in his affidavit constituted a good discharge, it is exceedingly doubtful whether or not advantage of it could be taken by motion to dismiss the suit or quash the proceedings against him. No matter of defence arising after action brought, can properly be pleaded generally, but ought to be pleaded in bar of the further maintenance of th,e suit. And if it arise after issue joined, it must be pleaded puis darrein continuance. Howe's Prac. 431; Broome vs. Beardsley, 3 Cai. Cas., 172" date_filed="1805-08-15" court="N.Y. Sup. Ct." case_name="Broome v. Beardsley">3 Caines, 172; 1 Ch. Pl. 532; Cobb vs. Curtiss, 8 J. R. 470.
The facts as disclosed in the affidavit upon which the motion to dismiss the suit and set aside the rule to account was founded, accrued after the issuing and service of the writ of garnishment.
Had the garnishee produced in court the goods, moneys, credits, and effects in his hands, he might, according to the requisites of the statute, have claimed to be discharged with his costs. He certainly, in his answer, has not alleged that he tendered the notes, accounts, and receipts to the court, nor has he stated that he holds them subject to its order. His answer simply states the amount of available funds that Joshua T. Walker placed in his hands for the payment of the judgment, and to it is attached a schedule of each particular claim or demand which he exhibits to the court. It admits ‡200 was collected out of the accounts. At the April term, 1837, the court made an order directing him to proceed and collect the residue of the notes, accounts, and receipts in his hands, and make report to the next term of the court. To this order he did not object, nor did he show any unwillingness to execute it. He was personally present in court when it was made, and having failed to object to his appointment, it must be presumed that he acquiesced in it, and took upon himself the trust-imposed. He did not then allege that the notes, accounts, and receipts were not due and owing from the persons who executed the same, nor did he allege their inability to pay or insolvency. At the same term, he tendered in part payment on the judgment the receipt of John Trigg, for which he was allowed a credit, by order of the court, of one thousand dollars. At the October term, 1838, his motion to dismiss was overruled, and no further order seems to have been then entered in regard to the garnishee’s accounting. At the April term, 1839, upon motion of the plaintiff’s counsel, a rule was entered against the garnishee to account forthwith, and a copy of it regularly served upon him. During all this time the garnishee never once sought to discharge himself from his liability, by alleging and, establishing the fact that he could not collect the money, or had not collected the notes, accounts, and receipts placed in his hands. By failing to render to the court any legal excuse for disobeying its order, which he had voluntarily assumed to execute, surely he rendered himself personally liable for the amount admitted to be due and in his hands.
At the November term, 1839, the court rendered judgment against him. He even then did not object to his liability upon the ground, that he had obeyed the previous order of the court, or that he could not execute it by reason of any inability of his own, or that of the individuals who were owing the claims put in his hands for collection. His failure then to obey the order of the court, and his express acknowledgment that the notes, accounts, and receipts, were still in his hands, was certainly sufficient to render him personally liable, and to authorize the court to decree against him.
The court proceeded to decree against him because he admitted that he possessed available means and effects, placed in his hands by Joshua T. Walker, one of the original defendants for the purpose of paying off the judgment, upon which the writ of garnishment issued. Having failed to make a legal tender to account, or to produce the notes, accounts, and receipts in his hands to the court, he of course became personally responsible for as much as he admitted to be due in his answer. Although it is true, as contended by the counsel for the plaintiff in error, that his answer was full and complete as to all the interrogatories filed, still he has no right to claim to be dismissed with his costs, if his answer shows that he has available means in his hands which he retained, belonging to the original judgment debtor; neither is it necessary for the plaintiff to put the allegations of his answer in issue, and demand a jury for determining the truth of it. As we before remarked, the proceeding in this case is partly according to the practice in courts of chancery; and in such cases the answer of a defendant will certainly charge him, if he admits a certain amount to be due in his hands, and such also we apprehend is the correct rule in the case now before us. The garnishee first rendered himself liable by his own admissions and showing — he fixed this liability personally upon himself by disobeying the order of the court to and being guilty of laches in the discharge of the duty imposed upon him. And, therefore, the court after giving him credit for all the money paid over, rightly decreed against him for the residue admitted to be in his hands unappropriated. The judgment of the court below must therefore be affirmed with costs.
The remaining cases decided at this term are necessarily postponed until the third volume.
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