#### Marshall B. Pierce, Appellant, *v.*Charles G. Carleton, et *al.,*Appellees.

APPEAL FROM JO DAVIES.

A garnishee may inquire into the legality and regularity of the previous proceedings against a defendant in attachment; because if such proceedings are unauthorized and void, he would not be protected in the payment of an unauthorized judgment.

If the record in an attachment case, shows that the .notice was published in time, it may be shown by parol, in aid of the publication, the place and manner of it, and this Court will presume, that the necessary proof was made on the < lircuit. Surplus money made on execution in the hands of an officer, belonging to the defendant, may be garnisheed in the hands of the officer.

The answer of a garnishee until disproved or contradicted, must be considered as true. If judgment is asked upon the answer of a garnishee, unless his answer clearly makes him chargeable, he should be discharged.

Oarleton & Oo. commenced their action in assumpsit, in the *Jo*Davies Circuit Court, *by*attachment against George Cribb, a non-resident. The writ issued against several persons-, (among others, the present appellant) as garnishees. Pierce was a deputy under the IJ. S. Marshal, for the- District of Illinois. As such deputy he had levied upon divers goods &c., as the property of Cribb. Pierce returned to the Court the list of the goods upon which he had levied. One Robinson and others, by interpleader, claimed the goods garnisheed in the hands of Pierce, and which he had attached as deputy marshal. The case on interpleader was heard, and the decision was against the claimant. Pierce, in answer to interrogatories propounded to him as garnishee, responded, that he had no money in his hands belonging to Cribb. except as follows r That as Deputy Marshal of the U. S. Circuit Court, he had two executions from said Court against Cribb, by virtue of which he had levied upon certain goods as belonging to Cribb, which wei% sold, and the proceeds exceeded amount of executions about $249,07, which sum was in his hands at the time of the service of the garnishee process. That he, Pierce, had been directed by the marshal to return this excess, with the executions, to the Clerk of the U. S. Circuit Court. That he, Pierce, had the excess of $249,07 in his hands,, which he held, subject to the order of the Circuit Court of Jo Davies, if he was, under the circumstances, bound to pay that sum as garnishee, to Oarleton & Co.

A judgment was rendered in favor of Oarleton & Co., against Cribb, in the Jo Davies Court, at May term, 1850. At the *361October term, following, a judgment was rendered against Pierce as garnishee, condemning him to pay to Carleton & Co., the said sum of $249,07.

The proceedings were had before Sheldon, Judge.

The notice of publication for bringing the defendant, Cribb, into Court at the suit of Carleton & Co., had the following certificate annexed: 11 We hereby certify that the annexed advertisement was published in the North Western Gazette, four consecutive weeks, the first of which publications, was on the (20) twentieth day of March, (1850,) eighteen hundred and fifty.

Houghton & Springer.”

E. S. Leland, with whom was M. Y. Johnson, for Appellant.

There being no proper proof of publication as to the affidavit in attachment, the garnishee may avail himself of this irregularity. Being a trustee, he is to see that the proceedings against the defendant in attachment are regular, otherwise he will not be protected by the attachment, in case of a suit against him. 2 Howard, 649 ; 1 Binn., 25.

The money in the hands of Pierce, could not be reached by the garnishee process, because it was in the custody of the law. 4 East, 510; 9 East, 48; 9 Miss., 382; 8 Scam., 451; 1 Crunch, 117; 1 Dallas, 854; 1 Ham., 275.

Courts will exercise a control over surplus moneys in the hands of their officers.' 1 Wend., 87; 7 Wend., 259; 8 Caine’s R., 84; 5 John. R., 167.

The garnishee in this case, could only have been charged on the facts in his answer. If there was not enough stated to show an indebtedness, the plaintiffs in this attachment should have propounded further interrogatories.

The facts stated in the garnishee’s answer, render it uncertain whether the surplus money belonged to Cribb or not. Before he should have been charged, there should have been an issue made, to settle whether the property sold on the execution, from the U. S. Circuit Court, was Cribb’s, and whether he alone, was entitled to the surplus. The fact of indebtedness by the said Pierce, to the said Cribb, not appearing clearly to exist, the garnishee should have been discharged. 1 Supp. U. S. Digest, p-*36214, sections 118, 120, 121, 152, 164, 216; 3 S. & M., 296; 4 Gil., 355.

There must be an indebtedness shown from Pierce to Cribb. If the garnishee was liable to Cribb, his liability was in tort; there was no indebtedness. Although Cribb might waive the tort, and sue in assumpsit, it is a personal privilege, to which the creditor is not entitled. Sewell on Sheriffs, 254; 1 Supp. IT. S. Digest, p. 14, §117.

E. S. Blackwell, for the Appellee.

A garnishee upon writ of error, cannot question the regularity of the proceedings against the principal debtor in the attachment suit. If the Court has jurisdiction, he will be protected in all payments under the order of the Court, however irregular the proceedings may be. Though the proceedings may be reversible on error brought by the principal, they cannot be impeached collaterally by any one. 4 S. & M., 704; 12 *ibid.,*475; 9 Missouri, 421; Lawrence *v.*Lane, 4 Gil., 361-2; Sessions *v.*Stevens, 1 Branch, 233; Tubb *v.*Madding, Minor’s Rep., 129; Stebbins *v.*Finch, 1 Stewart, 180.

In this case the Court acquired jurisdiction by the seizure of the projDerty, and service of the process upon the garnishees. The neglect of the clerk to make publication, was a mere irregularity, which cannot operate to defeat that jurisdiction, which had already attached by the seizure, &c. The jurisdiction in no wise depends upon the publication. Paine *v.*Moreland, 15 Ohio, 435; R. S., 66, § 13, 14. If publication is essential in order to confer jurisdiction, it is sufficiently made out in this case by recital and presumption. The record recites that due proof of publication was made, which is at least *prima facie*evidence of that, fact. Barbour v. Winslow, 12 Wend., 102; Selin *v.*Snyder, 7 Serg. & Rawle, 166; Raborg *v.*Hammond, 2 Harr. & Gill, 42; Rust *v.*Frothingham, Breese, 258.

A party, in making proof of publication, is not confined to-the mode pointed out by the statute. He may resort to the common law mode, and this Court will *presume,*that such proof was-made, to the satisfaction of the. Court below. R. S., 47, § 1;. Broome’s Maxims, 427.

The principal question in the case is, whether a surplus of *363money remaining in the hands of a deputy marshal, after satisfying the several executions directed to him, can be reached by the process of garnishment, as the money of the defendant in execution? The words of our statute are broad and comprehensive, and differ widely from the statutes of other States. The statute provides that the sheriff shall “summon *dll*persons, &c., whom the *creditor*shall designate as having *amj property,*effects, *or cho-ses in*action, in their *possession or*power, *belonging*to the defendant, or who are in *any wise indebted*to such defendant, &c.” E. S. 66, §12. This is a remedial statute, intended to enlarge the right and power of the creditor, to reach the effects and credits of his debtors, and should be liberally construed. It is the policy of our laws to subject the entire estate of the debtor, whether in possession, or action, to the payment of his debts, and such a construction should be placed upon this statute as will advance that policy.

The cases relied upon by the counsel for the appellant may be classed as follows:

1. Where the defendant in execution attached the money while in the hands of the officer, under pretence of a debt due him by the plaintiff in the execution; such were the cases of Reddick *v.*Smith, 3 Scam., 451; Wilder *v.*Bailey, 3 Mass., 289; Dawson *v.*Holcombe, 1 Ohio, 275; Ross *v.*Clark, 1 Dallas, 354.

2. Where the officer sought to apply moneys which he had collected under process, upon executions in his hands against the creditor for whom he received the money; this was the detail of facts in First *v.*Miller, 4 Bibb, 311; Conant *v.*Bicknell, 1 Chipman, 50; Turner *v.*Fendell, 1 Cranch, 117; Thompson *v.*Brown, 17 Pick., 462.

3. Where the money was collected by the Sheriff under execution, remained in his hands, and was attached by another officer as the money of the execution creditor. Marvin *v.*Hawley, 9 Missouri, R., 382. It will be perceived that in each one of these cases, the money was seized or garnisheed as the money of the creditor, while it remained in the hands of the officer who collected it. The reasons assigned for these decisions are, that the money was in the custody of the law; that the creditor had no property in the specific money collected, until it was paid over to him; that it would lead to delay in the execution of judgments, and bring different judicial tribunals into collision with *364each other. These reasons are unanswerable, when applied to that class of cases, and are all founded upon the plain and imperative mandate of the writ, which commands the officer to levy a specific sum of money, and *bring into court*on a day therein mentioned. 2 Lilly’s Entries, 581; 2 Harris’ Entries, 426.

The case at bar is clearly distinguishable from the cases cited. The writ does not command him to bring the surplus into court; in fact the law does not contemplate that there will be a surplus. He must levy the precise sum named in the writ. 2 T. B., 157. And this at his peril, if the levy is insufficient, he is liable to the plaintiff for the residue of the debt. If he levy more than is called for by the writ, though he will not be liable as a trespasser, unless the levy is grossly excessive, yet in-selling the goods he is bound to stop the moment the money, named in the writ, is raised. If he sells more, he is liable in trover, at the suit of the defendant, for the excess. Sewell on Sheriffs, 254; Cook *v.*Palmer, 13 E. C. L. R., 305. He must not return the surplus money into Court, but retain it in his hands. Sewell, 254. And it is his duty to pay it over to the defendant *immediately.*Fieldhouse *v.*Croft, 4 East., 510. In no sense, then, can this surplus be regarded as money in the custody of the law. Even if brought into court by the officer, it cannot be reached by a creditor of the debtor upon motion. 4 East, 510. And it is to all intents and purposes the property of the defendant, and he may have an action for money had and received against the officer.

The right to reach this surplus, by the process of garnishment, is fully sustained by the following authorities. Jaquets *v.*Palmer, 2 Harrington, Del. R., 144; King *v.*Moore, 6 Ala., 160; Tucker v. Atkinson, 1 Humph., 800; Watson *v.*Todd, 5 Mass., 271; Crane v. Freese, 1 Harrison, 305; Hurlbut *v.*Hicks, 17 Vermont, 193; Woodbridge v. Morse, 5 N. H. R., 519. There can be no collision between this and the Federal Courts, for the latter has no jurisdiction over the surplus. Ho execution is delayed by this proceeding; nor can any litigation be expected to follow a judgment in favor of the appellee.

It is said, however, that if trover lies at the suit of Cribb against the marshal for an excessive sale, we have no right to waive for him the tort, and treat the surplus as money had and received for his use, and thus subject it to garnishment. To which we answer the money is *11 effects"*belonging to Cribb, and *365whether it came to the possession of the officer by contract or tortionsly, our right to the money is not impaired. It might be different under the Massachusetts statute which requires the money to be *“intrusted and deposited"*before the holder can be summoned as a *trustee.*Besides this, if Cribb should sue the marshal in trover, the recovery in this case would be allowed in mitigation of damages, if not as an effectual bar to the suit.

Treat, C. J.

The first question arising on this record is, whether a garnishee, who sues out a writ of error to reverse a judgment rendered against him, may inquire into the legality and regularity of the previous proceedings against the defendant in attachment. In one respect, he unquestionably can. In a suit by attachment, the Court must acquire jurisdiction, and proceed to enter a judgment against the defendant, before it can pronounce any judgment against a party summoned as garnishee. If the previous proceedings are unauthorized and void, there is no sufficient basis to support the judgment against the garnishee. He would not be protected in the payment of a judgment obtained under such circumstances. It would be regarded as a voluntary and not a compulsory payment, and the defendant might compel him to pay a second time. It is clear, therefore, that a garnishee should be permitted to inquire into the validity of the previous proceedings in the case. If such proceedings arc void, the judgment against the garnishee may for that cause be reversed on error. But, if the Court had jurisdiction, its errors and irregularities can only be called in question by the defendant, and that too in a direct proceeding for the purpose. They affect him only, and he may waive or insist on them. The garnishee has no cause to complain, for he will be protected in the payment of the judgment. Whithead *v.*Henderson, 4 Smedes & Marshall, 704; Matheny *v.*Galloway, 12 *ibid,*475; Insurance Co. *v.*Cohen, 9 Missouri, 421.

In this case, the garnishee assigns for error, that no notice of the pendency of the attachment was given to the defendant. Waiving any discussion of the question whether the publication of notice is necessary'to confer jurisdiction on the Court in proceedings by attachment, it is enough for the decision of this case, that it sufficiently appears from the record that the requisite notice was given. The record states that the plaintiffs filed *366proof of publication, and then follows a notice in due form, with a certificate of Houghton & Springer attached, in which they state that the notice was published in the North Western Gazette, for four weeks consecutively, the first publication being on the 20th of March, 1850. The judgment against the defendant was entered on the 20th of May, so that sixty days intervened between the first insertion of the notice and the date of the judgment. It is true that Houghton & Springer do not describe themselves in the certificate as publishers or printers of the Gazette, nor do they state where the paper was published. But it was clearly competent for the plaintiffs to prove by parol, that the paper was published in the State, and that Houghton & Springer were the publishers thereof. The presumption should be indulged, that this was done to the satisfaction of the Court.

The record also presents the question, whether moneys remaining in the hands of an officer after the satisfaction of the execution against the defendant in attachment, can be reached by the process of garnishment. The statute is very broad in its provisions. It provides that the lands, tenements, goods, chattels, rights, credits, moneys and effects of the debtor, of every kind, in whosesoever hands or possession the same may be found, may be reached by attachment. This Court decided in the case of Reddick *v.*Smith, 3 Scam., 451, that money in the hands of a Sheriff, collected on execution, cannot be attached as the property of the plaintiff in the execution, because the money is in the custody of the law, and subject to the control of the Court from which the execution emanates; and because to allow it to be done, might bring different tribunals into collision, and cause much embarrassment to officers concerned in the execution of final process. We adhere to that decision, but we are not inclined to extend the rule to cases like the present. The same reasons do not apply to a case where an execution has been satisfied, and there is a surplus in the hands of the officer belonging to the defendant. The command of the writ does not require the officer to bring the surplus into Court. When the amount due on the judgment is returned into Court, or paid over to the plaintiff, the execution has accomplished its office, and if there is any surplus it is the duty of the officer to pay it over to the defendant. It is not strictly in the custody of the law, but the officer holds it as so much money had and received to the use of the defendant. *367Courts do not assume any control over a surplus, except under peculiar circumstances, as in the case of Vanitest *v.*Yeomans, 1 Wendell, 87, where, on a sale óf real estate under a senior execution, the Court directed the Sheriff to pay the surplus to a junior judgment creditor having a lien on the same property. See Fieldhouse *v.*Croft, 4 East., 510; Jacquet's Admrs. *v.*Palmer, 2 Harrington, 144.

The remaining question relates to the correctness of the judgment against the garnishee. The answer of a garnishee until disproved or contradicted, must be considered as true. If the plaintiff declines to put it in issue, but asks for j udgment thereon, the answer ought clearly to disclose a state of facts on which the garnishee is chargeable. In such case, if the answer leaves it doubtful whether the garnishee is indebted to the defendant, he should be discharged. Judgment should not be entered against him, where there is reason to believe that he may bo compelled to pay the same demand to another }Darty.

It is insisted, that the answer of the garnishee did not authorize a judgment against him. He states in substance, that, as deputy marshal, he received two executions against the defendant, and levied the same on a lot of merchandise in the possession of Campbell; that the goods were claimed by Robinson, and on a trial of the right of property, a verdict was returned against the claimant, on the ground that the executions were a lien on the goods before they came to the possession of the claimant; that he thereupon proceeded to sell so much of the goods as he supposed would be sufficient to discharge the executions, but there was found to be a surplus in his hands, which is the foundation of the judgment in question. It might, perhaps, be inferred from the answer, that Robinson was entitled to the surplus. The case, however, shows that the residue of the goods levied on by the garnishee, were attached in this case as the property of the defendant; that Robinson interpleaded claiming them as his, and that the right of property was adjudged against him. The case further shows that Robinson, subsequently came into Court, and released on the record, all claim to the goods attached and their proceeds. It is evident from the whole case, that his claim, whatever it was, was the same as to all of the goods. The right of property, as well in the goods sold by the marshal, as those levied on in this case, was determined against him; and if he *368was not entitled to the goods as against the attaching creditor, he certainly was not entitled to the surplus, for that was but the proceeds of a portion of the same goods.

The judgment is affirmed.

*Judgment affirmed.*