#### SAMUEL P. SIMPSON *v.*JOHN H. HARRY.

The word “ appeal,” in the 9th section of the act of 1794, *(Rev. eh.*414,) is not used in its technical sense, and it is not therefore necessary or regular for the magistrate to pass upon a claim of a third person to property attached, before such person can carry his caso to the County Court.

The claim of an interpleader to property attached, must be a *legal*claim; a mere *equitable*one will not entitle the interpleader to the property attached.

No claim can bo interposed by a third person, to a *debt*attached in the hands of a garnishee, as nothing but *tangible*property comes within the words or the spirit of the law, allowing an interplea.

This was an attachment and interpleader under the following circumstances. The defendant, John H. Harry, on the 7th January, 1832, sued out an attachment returnable before a single justice, against John R. Dunn, an absconding debtor, and summoned William Boydton, as a garnishee. On the same day, Boydton appeared, and acknowledged that he had money enough in his hands (of the said Dunn’s) to pay the amount claimed by the plain*203tiff in the attachment. Thereupon the said amount was condemned in the hands of the garnishee, to satisfy such recovery as might thereafter be had by the plaintiff, against the defendant in the attachment. On the 7th February, 1832, the present plaintiff, Simpson, interposed a *claim*to the money in the hands of the garnishee, which being rejected by the magistrate, he appealed to the Co'unty Court. Having failed upon an issue to the jury in establishing his claim there, he appealed to the Superior Court, where upon a trial had before his Honor Judge Settle, at Lincoln, on the last Circuit, he offered evidence tending to establish the following case. Dunn, some time before the issuing of the present defendant’s attachment, had obtained a judgment before a single justice, against a man of the name of M/Lelland, and being indebted to the present plaintiff, in a larger sum of money, on the 24th December, 1831, gave the plaintiff a written order on the constable, who was supposed to have possession of the judgment, to deliver the same to the plaintiff, as having been assigned to him. The judgment, however, was not in the hands of the constable, but had been left in the custody of the magistrate, who rendered it. The constable therefore, on the presentation of this order, which was on the day of the date, gave the plaintiff an order on the magistrate for the judgment; but as the magistrate was out of the state, it was not then, nor did it appear to have been at any time [afterwards, presented to him. When the judgment was rendered, M‘Lelland, having given surety for the stay of execution, requested the justice to keep the judgment, assuring him that it should be paid before the expiration of the stay. It did not distinctly appear, whether before or after the 24th of December, 1831, but at all events before the 7th January, 1832, M'Lelland called at the store of the magistrate, for the purpose of paying up the judgment, and the magistrate being absent, Boydton, his partner, who had access to his papers, received the money from M‘Lelland, and delivered up the judgment to him. After the attachment was issued, and after Boydton had given in his garnishment, and after the money which he admitted himself to owe to Dunn, *204was condemned to answer the recovery which might be made by the plaintiff in the attachment, Simpson, the plaintiff in this interpleader, gave notice to Boydton of his assignments, and claimed the money received by him. Boydton refusing to pay it, he then interposed his claim to it before the magistrate who was acting upon this attachment. His Honor, upon these facts, instructed the jury, that the plaintiff had but an *equity*to the money, and not the *property*therein, and the jury found accordingly against his claim of property, and he appealed.

*Devereux,*for the plaintiff,

contended 1st, that under the act of 1794, *(Rev. ch.*414, s. 9,) an interpleader had a right to urge either a legal or an equitable claim.

2nd. That in this case the money was in the custody of the law, the magistrate or Boydton, being in a situation analogous to that of a clerk of a Court of Record; and cited the cases of *Overton*v. Hill, 1 Murph, Rep. 47, and *Alston*v. *Clay,*2 Hay. Rep. 171.

3rd. That if the claim of Simpson to this debt, before payment, was an equitable one, by the subsequent payment the trust was closed, his title became legal, and he might then maintain *assumpsit*for money had and received to his use; and for this was cited *Cooper*v. *Wrench,*16 Eng. Com. Law Reps. 51.

No counsel appeared for the defendant.

Gaston, Judge,

after stating the case, proceeded as follows : — It may not be amiss to state, that the proceedings upon this interpleader, have not been strictly regular. The 9th section of the act of 1794, *(Rev. ch.*414,) which directs the mode of proceeding where property attached is claimed before a justice, directs that where any property attached as aforesaid, shall be claimed by any other person, and to determine the right, the intervention of a jury may be necessary ; the party claiming such property may *appeal*to the next County Court, where such right upon issue joined, shall be tried by a jury; the party claiming entering into a bond with sufficient security to pay all costs and charges in case he shall fail to prosecute *the*
      *205
      *suit*with effect. The term “ appeal,” we do not understand as having been here used in its *technical*sense, the calling upon a superior, to correct injustice in the *decision*of an inferior tribunal; but the calling on a Superior Court to take cognizance of a matter pending in the inferior tribunal, and which, from its constitution, the latter is not fitted to determine. The claim of property is supposed to be one in which the intervention of a jury may be necessary, and as there is no jury in the Magistrate’s Court, the claimant in the interpleader appeals *his suit,*that is to say, removes it for trial to the County Court, where such a jury can be had. There was no necessity, therefore, for the magistrate’s proceeding to any adjudication upon the claim, and such adjudication was a nullity. Whenever the case is one, in which an interpleader is allowed, the claimant is entitled to remove his claim to the County Court, upon complying with the terms prescribed by the act. The irregularity, however, in this case, furnishes no ground for reversing the judgment of the Superior Court, for the claim has been acted upon, both in the County and Superior Courts precisely as it would have been, had not the magistrate passed upon it.

We are of opinion, that there is no error in the instruction given by his Honor on the trial of the issue in the Superior Court. Judgments are not assignable at law, and however the transfers of them may be protected in equity, they unquestionably pass no legal interest. The present plaintiff was not the legal owner of Dunn’s judgment, and Boydton by the receipt of the money upon it, did not become legally the debtor of the present plaintiff. If, after the receipt of the money, and with a knowledge of the assignment, he had promised to pay the money to the plaintiff, he would have made himself liable by such as-sumpsit. If before the receipt of the money, he had been apprised of the assignment, and had collected it as agent for the plaintiff, he would have been liable as for so much money received to the use of the plaintiff. But a mere equitable interest in the judgment could not *per se*create a legal property in the money due, or paid upon the judgment, in whose hands soever it might be. But it is insisted, *206in behalf of the appellant, that his claim was supported by showing an equitable interest in the money, for that it is the purpose of the attachment laws to subject to the demands of creditors only such moneys as are *equitably and truly*due to their debtors, and not such as are due to them in trust for others. We admit the argument, but deny the inference. We admit that it is not the purpose of the attachment laws, to subject to the demands of creditors, either property held by, or debts due to, absconding debtors *as trustees*for others. If upon the garnishee’s examination, or on a disputed issue growing out of a garnishment, it shall appear that the garnishee holds effects of, or is indebted to the defendant, as the trustee of another, the Court ought not, and will not, condemn those effects, or that debt, as liable to the satisfaction of the demands of the attaching creditor. Such creditor would thereby be converted into a trustee for the rightful owner; and the proceeding would be a perversion of the very intent and purpose of the law of attachments. But if the garnishee sets up no such defence, and states no facts from which it can be inferred, we are at a loss to conceive how it can be brought’ before *that*Court. The privilege of interposing a claim is given by law to him, and to him only, who has the right to the property; and the issue upon the claim is *in whom is the property claimed. This*must mean the legal ownership. Such an issue wherever tried, can mean nothing else. If the claimant has not the legal interest *in*the property, the issue cannot be found for him. The equitable owner is not without redress. He can have recourse against the garnishee who hath held back the facts, which would have prevented condemnation; or he may invoke the aid of a proper court, to stop the proceedings. He can pursue either of these courses, whenever the nature of the property, or the magnitude of the debt, will induce a Court of Equity to take jurisdiction of an equitable demand — and where it will not, he is in no worse condition than he was in before.

As the alleged error on which the plaintiff seeks a reversion of the judgment against him does not exist, it is not *necessary*that we should state any other reason for *207affirming the judgment. But we have been struck with the character of the claim here *interposed*— a *claim to a debt*— and are apprehensive that our silence upon a point so obviously presented to our notice, might be construed into an implied sanction of such a course of proceeding. "We understand *all*the provisions in the attachment laws, permitting third persons to interpose claims, as applying only in the cases *ordinarily*indicated by the words used. Creditors are enabled by means of these laws to obtain satisfaction of their demands against their absconding debtors out of either or both of two funds. The first, is such of their property as may be levied on, seised and sold; the second, out of debts due to them from third persons. Special provisions are made for prosecuting the remedy by attachment, applicable to the pursuit against these respective funds. For debts due from third persons judgments are to be rendered against them. As to the property which can be seised, it is to be levied on, and is to be sold by *venditioni exponas,*as the property of the defendant liable to execution. It is when property is attached — of a tangible kind — the subject-matter of anexecution— that third persons have a right to come forward, and insist that the *property*so attached is *their*property, and not that of the absconding debtors. If the persons summoned as garnishees, choose to admit that they owe money to the defendants in attachment, which in truth is not due, and thereby subject themselves to judgments for which they are not liable, the actual creditors of these garnishees have no *legal*right to interpose. Judgments against the garnishees for what they admit to be due, *touch*not the debts due from the garnishees to others. They produce no seisure, no sale of the latter — and leave the remedies these creditors and all the means of enforcing them, precisely as they were. These creditors have no more *legal*right to interpose against the rendition of such judgments, than against the voluntary confession of judgments by their debtors to persons- bringing suit against them by original process. But where the property of third persons is specifically levied upon by attachment, as the property of an absconding debtor; the proceeding is against that *208very *corpus*— and the law to prevent the direct injury arising from the interruption to its enjoyment, and the possible injury that may attend its removal, has provided a mode by which the right to it may be immediately asserted. As well therefore, from the objects intended to be effected by the legislature, as from the words used, we are of opinion that the claimant, if he had had a legal right to the money received by Boydton on the judgment against M‘Lelland, could not interpose a claim against the plaintiff in attachment to the debt, which, *he*says, Boydton owed to *his*debtor.

Per Curiam. Judgment affirmed.