
    Newbern,
    
      - Term, 179-
    SALMON versus SMOOT & BOND.
    ORIGINAL attachment. The plaintiff had directed Richardson to be summoned as a garnishee, and the sheriff had returned, on the back of the attachment, that he was not to be found.
    
      Richardson came into the Court-House about other business, and Davie for the plaintiff, moved that he might answer to his garnishment.
    This was objected to by Martin for the garnishee, who said that Richardson could not be compelled to answer before due service. A garnishee may be considered as a witness, or as a party to the fuit.
    A witness is not compellable to give evidence if he has not been legally summoned.
    It is no contempt of the court, for a by-stander to refuse to be examined. Bowles vs. Johnston, 1 Blackst. Rep. 26.
    The case is much stronger, if he be considered as a party. He must then be regularly brought in, and the law gives him two terms to determine on one of the alternatives, which it holds out to him, either to give bail, suffer judgment to go against him for the whole debt, or submit to an examination.
   The Court,

Ashe, J. and Williams, J.

overruled these objections; saying this matter at and determined against the garnishee.  