
    James B. Richardson vs. George Whitfield.
    No proceedings are necessary to be had against the garnishee who makes no return to the attachment, .until judgment is recovered against the absent debtor; and then upoit motion, it seems, even without notice, judgment may be entered up against the garnishee -, therefore, a garnishee who has made no return, and against whom no proceedings have been had for four years, but during which time the judgment had not yet been recovered against the absent debtor, can« not be examined as a witness on the part of such absent debtor, on ' the trial of the case in which he had been garnisheed,
    ft seems that the act of the legislature making a copy writ, left at the residence of the defendant equivalent to personal service, does not. include writs of attachment.
    Attachment.
    was ati action to recover the value of a negro, purchased of the defendant. It appeared that the negro was sold for a full price, and there was some evidence of his having been unsound at the time of sale. As the defendant was absent from the state, a writ of attachment was served upon Col. Howard, who had in his possession property of the defendant. Col. Howard made no return to the writ; but against him there had been no proceedings from the service of the attachment to the day of trial, a period of four years. Under these circumstances, he was offered as a witness on the part of the defendant; and was objected to by the plaintiff’s counsel, on the ground, that as garnishee, who had made no return, he was liable for the amount that might be recovered in the action.
    The defendant’s counsel, on the contrary contended, tbat as there had been no judgment by default entered up, as is the practice in such eases, nor other proceeding had for four years, the plaintiff was to be regarded as having abandoned his claim upon the garnishee, and that he was in fact out of court.
    The Court overruled flic objection, and the witness was sworn, aud testified strongly to the soundness of the negro at the time of the sale.
    A verdict was had for the defendant. -
    motion was made Sor a vwvy trial on the ground that the court erred in admitting the evidence of the garnishee,
   Mr. Justice Huger

delivered the opinion of the court.

At the trial I was unacquainted with a decision of the Constitutional Court, made at Columbia some years since, and which my Senior Brothers tell me fixed the practice in such cases. The decision has not been reported, neither is the title recollected, but the garnishee was a Mr. Silli-man. In the case alluded to, it was determined, that no proceedings were necessary to be had against the garnishee who makes no return to the attachment until judgment was had against the absent debtor. And then upon, motion, even without notice, judgment is entered up against the garnishee. As the court decided in the case of Wm. Alston, garnishee of Pinckney, not reported as I know of, that the act of the legislature making a copy writ, left at the residence of the defendant, equivalent to personal service, did not include writs of attachment, I apprehend that no inconvenience will result from dispensing with notice.

A new trial is ordered.

Justices Bay-, Nott, Gantt and Johnson, concurred.  