Arrington v. Screws. given to such one, be equally divided between the survivors." The legacies were paid to the grand-children respectively; and afterwards Adeline died intestate, without having had issue, and leaving the others surviv ing, and Kelly Rawls became her administrator, and received assets to a greater value than $300; and, being summoned as a garnishee in this suit, he stated the above case in his garnishment. The plaintiff moved for the condemnation of one third part of the sum towards the satisfaction of his recovery ; but the motion was refused and the garnishee discharged; and the plaintiff appealed. Miller, for the plaintiff. B. F. Moore, for the defendant. RUFFIN, C. J. The Court concurs in the opinion of his Honor. An attachment may be served in the hands of any person indebted to the defendant or having any of his effects. But this interest of Mrs. Screws in the hands of her sister's administrator, is not a debt to the defendant, her husband, but belongs to him and her in her right. It cannot become his, but by reducing it into possession. Regarding this interest as a debt, there is, then, an inconsistency in attaching it as a debt to the husband; since, which outstanding, it cannot legally be his. He might, indeed, release the demand, or assign it in Equity; but unless he collects the money or disposes of the interest, the right of the wife continues and would survive to her or her representative. He could not recover it in his own name; and it follows, that it cannot be attached as a debt to him. Process operates only upon such interests of the debtor as exist at the time it is served, and not on such as may afterwards arise. Gentry v. Wagstaff, 3 Dev. 270. Flynn v. Williams, 1 Ired. 509. PER CURIAM. Judgment affirmed. WARREN HARPER vs JAMES M. DAVIS. Where more damages are recovered than are demanded, the plaintiff will be permitted to remit the excess, and have judgment for the proper sum, on paying the costs of this Court. The case of Williamson v. Canady, 3 Ired. 349, cited and approved. Appeal from the Superior Court of Law of Duplin County, at the Spring Term, 1848, his Honor Judge DICK presiding. The case began by warrant before a Justice of the Peace for "the sum of twelve dollars due by assumpsit." Upon non-assumpsit, the verdict was for the plaintiff, and the damages assessed to $12 for principal money, and for interest $1 50; and from a judgment accordingly the defendant appealed. The defendant excepted to the instructions to the jury; but it is not material to state the point, as his counsel abandoned it here, and moved to reverse the judgment because there was an excess of damages recovered above those demanded. On the part of the plaintiff, there is a motion to remit the excess, and to have judgment for the residue. Strange, for the plaintiff. D. Reid, for the defendant. RUFPIN, C. J. The case of Williamson v. Canady, 3 Ire. 343, is in point for the plaintiff, on the payment of costs in this Court. Besides the reason there given, it is substantially doing only what the Court would be bound to do on the motion of the defendant. For, if damages be improperly assessed, as, for example, in a McKenzie v. Little. popular action, the judgment may be rightly reversed for the penalty, without the damages; and, if rendered for both debt and damages, upon error brought, the judg ment is not reversed in toto and judgment arrested, for the incongruity between the declaration and the verdict; but it is reversed as to the damages only, with costs in the Court of error, and affirmed for the debt and the costs in the Court below. Frederick v. Lookup, Bur. Rep. 2018. The reason is, that the higher Court is to give such judgment as, upon the whole record, ought to have been given in order to terminate the litigation according to the right apparent between the parties. That is the jurisdiction of this Court under the Statute; and therefore the judgment of the Superior Court must be reversed as to the sum of $1 50, assessed damages above the sum demanded in the warrant, with costs in this Court, and affirmed for the sum of $12, thus demanded, and all the other costs. PER CURIAM. Judgment accordingly. JOHN C. MCKENZIE vs. ALEXANDER LITTLE. The only jurisdiction conferred on this Court in cases at common law is appellate, after a judgment in the Superior Court. Where there has been no such judgment, the cause will not be entertained in this Court. Case transmitted from Anson Superior Court of Law, at the Spring Term, 1839. This is an action of debt on an award made on the submission of the intestate Jennings, to which the defendant Duffy v. Murrill. pleaded the general issue. He afterwards pleaded a special plea, since the last continuance, to which the plaintiff demurred. Without any trial of the issue or any judgment on the demurrer, the parties agreed to send the case to this Court for decision on the demurrer, and on certain agreed facts. No counsel for the plaintiff. RUFFIN, C. J. The only jurisdiction conferred on this Court, in cases at common law, is appellate, after a judgment in the Superior Court. The present cause, therefore, cannot be entertained; but the parties must proceed in the case remaining in the Superior Court. Each party will pay his own costs in this Court. PER CURIAM. Judgment accordingly. CHARLES DUFFY vs. ELIJAH MURRILL, Jr. Our Act of Assembly in relation to Replevin, Rev. Stat. ch. 101, does not repeal nor supersede the common law remedy of replevin. At the common law, an action of replevin, could only be maintained in cases of actual taking. Under our Statute, taking is not necessary to entitle the party injured to his remedy. Appeal from the Superior Court of Law of Onslow County, at the Spring Term, 1848, his Honor Judge DICK presiding. This is an action of replevin brought to recover a slave. The plaintiff, in taking out his writ, did not make any Duffy v. Murrill. affidavit, as required by the Act of 1836. Rev. Stat. Ch. 101, Sec. 1. For this cause, on the motion of the defen dant, the presiding Judge ordered the cause to be dismissed, and the plaintiff appealed. No counsel for the plaintiff. W. A. Wright, for the defendant. NASH, J. The error, into which his Honor was betrayed, consisted in considering the proceedings as instituted under the Act of 1836, when, in truth, it is a proceeding at common law, in which no affidavit is required. The Act does not repeal the common law action, nor supersede it, but simply applies the remedy by replevin to cases, to which it did not before extend. By the common law, a taking by the defendant was necessary to authorise this remedy, and such is the language of the writ; it is, "we command you, that justly and without delay, you cause to be replevied the cattle of B. which D. took and unjustly detains," &c. 1st Fitz. N. B. 68. Without a trespass by the defendant, the writ could not be used. If the defendant came into possession by bailment, the plaintiff was driven either to his action of trover or detinue. By the latter alone, the possession of the property detained could be regained, and, even then, after much delay, and subjecting the plaintiff often to inconvenience and loss, which the tardy recovery would not compensate. Much the most valuable portion of the personal property, owned by individuals of this State, consists of slaves, who, by artful and designing men having or pretending a claim of right, can be induced to leave the possession of the proprietor and go into that of his opponent. To such a case the common law remedy by replevin could not apply, because the defendant had not taken the slave; he did but detain him. It was the intention of the Legislature to remedy this evil by giving this writ, whereby the |