*391The opinion of the Court
(Barnes, President; Hallowell, J.; and Coxe, J.)was delivered by
Hallowell, J.Without considering the merits of the case, which properly form the subject of consideration for a jury, we will confine ourselves to the single point, whether a plaintiff in a foreign attachment can take out of court the proceeds of sale of the property attached before the regular and final determination of the scire facias suit against the garnishees.
We can discover nothing in the argument, should we even concede all the merits claimed by the plaintiff, which exhibits the propriety of departing from what appears to have been the long settled practice on this point. The fifth part of the 2d section of the act of 1705, about attachments, independently of the practice, appears to control this case. It directs, that where the garnishee pleads that he had no goods or effects in his hands at the time of the attachment, or at any time after, and the plaintiff proved the contrary, the jury in such case being satisfied that the proof is plain and full, shall find for the plaintiff, and say what effects they find in the garnishee’s hands. It is therefore clear, inasmuch as the plaintiff has issued his scire facias, and the garnishees have thus pleaded, that the latter are entitled to a jury trial, of which they cannot be deprived by any inability or unwillingness on the part of the garnishee or claimant, to retain the property attached by giving a bond to the sheriff. That is a circumstance wholly immaterial to the plaintiff. Indeed his condition is rather improved by the effects being allowed to remain in the court, inasmuch as it facilitates and insures payment of his debt should he ultimately succeed. He should content himself with that advantage, without seeking to diminish the few rights of the defendant, by precipitating the time of execution (to which the order now asked for would be equivalent), and thus abridge the time given him by the 4th section of the act for disproving the debt. The remedy by foreign attachment is frequently a harsh and injurious one, and we do not feel disposed to smooth the plaintiff’s way by depriving the absent defendant of even the least of his legal rights. It is, moreover, due to the garnishees, and any other claimant who may come in and defend, to afford them their constitutional means of trial in the amplest manner. The sheriff’s return in this case is in the usual form ; and were it even more positive than it is said to be on the subject of the defendant’s interest in the goods, it could not affect the claimant’s privilege to a jury trial: nor have the gar*392nishees conceded any thing to the plaintiff by their plea ; it is the general issue, and comports with their allegation that they have no property of the defendant in their hands; that what, had been his once was assigned to a third person before the attachment. Were this res nova, we could not agree to subject these defendants to any additional circuity of action, nor to subdivide the judgment of the court upon the effects ascertained or surmised to be in their hands, when the issue already framed affords all the parties a speedy opportunity of determining the right to the fund in court, as well as any other effects supposed to be in the garnishee’s possession, in the mode pointed out by law.
Rule discharged.