Westmorland v. Tippens

17 S.C.L. 514

• Court: Court of Appeals of North Carolina
• Decided: May 15, 1830
• Status: Published

Opinion

Evans, J.

delivered the opinion of the Court.

This Court is satisfied with the charge of the Judge, and the finding of the jury as to the title to the slave; but it is conceived. that the jury had no right to subject the defendant to the pay» meut of the plaintiff’s demand against the absent debtor. By the attachment act, if the garnishee lay claim to the property by his return, or deny that he hath any goods, chattels, &c. belonging to the absent debtor, and the plaintiff shall not rest satisfied with the same, then the matter shall be tried by a jury, “and the party that shall be cast in the same shall pay to the prevailing party such reasonable costs as shall be allowed and taxed by the Court.” P. L. 188.

The Legislature by this act provides only to try the question of title, and certainly could not intend to subject the garnishee to the payment of a large debt, because he disputed the title of the absent debtor to an article of small value. So much of this verdict as finds for the plaintiff any thing more than the truth of the issue, is erroneous, and must be rejected as surplusage. The effect of the verdict is, that the defendant has in his is-session the negro boy Hal, belonging to the absent debtor; and the parties are now in the same situation, as if the defendant had so admitted in his return; On filing his declaration and giving security, the plaintiff may have the negro delivered to him ; and on application he will be intitled to an order of Court for the sale of the slave.

Colcock, J. and Johnson, J. concurred.