#### Jinkins v. Langdon.

From Gates.

A. was summoned as garnishee, and stated that he had before been summoned at the instance of other Plaintiffs, and that the sum in his hands was subject to the claim of the Plaintiffs in the first attachment. On affidavit an issue was made up and submitted to a Jury, to ascertain whether the garnishee had in his hands any property of the debtor over and above the sum admitted in his garnishment. The Jury passed upon the facts, and, held that it was not their province, but that of the Court, to pass upon the record of the proceedings on the first attachment.

Garnishment on attachment. Langdon being indebted, on the 19th of November, 1816, executed to one Morgan a deed in trust of certain property, for the benefit of certain of his creditors. After this, the Plaintiff, having a claim against Langdon for §220 23, sued out his writ of attachment and summoned Morgan as a garnishee. In February, 1820, Morgan filed his garnishment, wherein he stated that he had taken into possession the property conveyed by the trust deed, and that before he sold the same or paid off any claims pursuant to tfie directions of the deed, he was summoned as a garnishee to appear in November, 1816, on attachments issued at the instance of Haggarty & Noble and J. & T. Garness j that after selling the property conveyed by the deed, and paying the debts secured by it, with incidental expenses, there remained in his hands a balance of $57 88, which the garnishee believed was subject to the claims of Hag-garty & Noble and J. & T. Garness.

The Plaintiff, Jinkins, then filed an affidavit, stating that he verily believed Morgan, the garnishee, had in his hands property of Langdon subject to his claim, and prayed that the same might be enquired into on an issue before a Jury, pursuant to an. act of the. General Assem - bly.

*387The issue submitted was as follows: “ Whether James Morgan had any money or property, and to what amount, at the time he was summoned as garnishee, liable to the 'Plaintiff's demand, over and above the $57 88 admitted in his garnishment ?” The Defendant contended -that he was not liable at Law for any thing more than the sum admitted to be in his hands ; that if JLangdon had any claim upon him, it was an equitable one, which could only bo asserted in a Court of Equity. The objection was overruled by the Court, and the Jury found that there was in the hands of the Defendant, at the time he was summoned as garnishee, the sum of $62 47,- liable to the Plaintiff’s demand, over and above the $57 88. The Defendant moved for a new trial: the motion was denied, and the Court then, on motion of the 'Plaintiff, and on inspection of the records in the cases of Haggarty &, Noble and J. & T. Garnesn against Isaac N. Lang-don, rendered judgment "or the Plaintiff against James Morgan, for the sum of $62 47, and also for the sum of $57 88. Defendant appealed.

Hogg, for garnishee.

Morgan answers on oath (that is, ¡deads,) that a former garnishment (that is, suit,) i& pending against him for the $57 88. If his plea had been formal, and at length, it would have contained avere ments, that the Plaintiffs in the former suit were creditors of Langdon j that the Defendant, and the cause of the action, were the same in both suits : the Plaintiff has taken no issue upon the allegation, that the $57 88 was liable to a farmer suit: in the County Court, there was-a judgment that the $57 88 was not liable to the present Plaintiff | but to the former Plaintiff: the Plaintiff, on affidavit, suggests, that the .Defendant has more than the $57 88 j and issue is made up to try that fact, and a verdict found for the Plaintiff j from a judgment on this verdict, the Defendant appeals : the same issue being tried in the Superior Court, and a verdict found that the Defendant had $62 47 over and above the $57 88-*388the Court grants a judgment against the Defendant for 47" on the verdict, and for $57 88 on an inspection of some records, produced by the Plaintiff on his motion; ^¡|(J Defendant, by his garnishment, tenders an issue that he has $57 88, subject to former suits ; and I think, on a fair construction of his garnishment, that whatever he has, is subject to former suits : the Plaintiff declines that issue, and neither demurs or replies : if he had demurred, the Court would have given judgment for Defendant i if he had replied, he must have done so generally, and there would have been an issue of fact to the Jury, to be proved, in part, by record, and part by parol; what the record amounted to, the Court would have instructed the Jury | and on the whole evidence, they would have rendered this verdict generally: the identities of the parties, and the subject matter, was entirely of fact: if the replication had been special, that the former suits were brought per fraudem, the issue would have been of fact: as it is, there has been a judgment on a garnishment, plainly implying an issue of fact. The Court proceeded on the error, that it had a right to dispose of the garnishment, without the intervention of the Jury ; and that a Jury was necessary, only on what was dehors the garnishment.

On a fair and proper construction of the proceedings, it will appear that the record was produced by the Plain« tiff; the Defendant having no notice, by replication, that he was to verify his garnishment by the production of the records referred to therein. The Plaintiff exhibited the. record, and moved for judgment: what record it was, does not, and cannot appear to this Court; There can be no final judgment on the record: there must be a venire de novo. See Cowan and Green, decided in this Court.

Hall, Judge,

delivered the opinion of the Court:

The records of the suit were exhibited to the Court,, in which it had been stated by the garnishee, that he *389liad given in bis garnishment before that time : the Court decided upon them, and the Jury decided upon tiio facts, and a general judgment was given against the Defendant. If the Court erred in any particular, that error should be set forth-&emdash;none is perceived, and judg- ment mast he affirmed. "When a