
    T. M. Horsey & Co. vs. Palmer & Jordan.
    Garnishees in attachment allowed, after judgment recovered against the absent debtor, further time, upon good cause shewn, to make their return.
    BEFORE WHITNER, J.; AT MARION, SPRING TERM, 1855.
    Suit, by attachment. William E. Richardson and Andrew J. Richardson were summoned as garnishees and failed, to make return. Judgment against the absent debtors was entered 28th October, 1854; and at this Term the plaintiffs moved for leave to enter judgment against the garnishees. This motion was resisted; and by affidavit it was shewn for cause, that the garnishees had been summoned in several cases — had made returns, as they supposed and believed, in all of them, and had surrendered the entire effects in their hands, the proceeds of which had been applied to older cases. No dissatisfaction had been expressed with their returns, and they denied all recollection of having had notice in this case.
    His Honor refused the plaintiffs’ motion, and gave the garnishees further time to make their return.
    The plaintiffs appealed on the grounds:
    1. Because the Act of Assembly, 1844, is positive and peremptory that garnishees failing or negleeting to make their returns, shall be liable to have judgment entered up against them after two days’ notice, and that it was not competent for his Honor to hear an excuse or permit the garnishees to make a return at a future time.
    2. That the affidavit of garnishees stating in general terms that they had exhausted the assets of the absent debtors, without even a return showing the manner and the amount of payment was not satisfactory shewing to excuse their default, and his Honor should have permitted plaintiffs to have entered up judgment against said garnishees.
    
      O. D. Evans, for appellants.
    
      Harllee and McDuffie, contra.
   The opinion of the Court was delivered by

Glover, J.

The Act of 1844, (11 Stat. 290) provides, “ that in case any garnishee shall neglect or refuse to make the returns required by law, upon motion being made in open Court, after at least two days’ notice thereof, judgment shall be entered against the said garnishee according to the provisiofts of the attachment law,” &c. By the Act of 1744, (3 Stat. 616,) the garnishee is required to appear at the return of the writ, or at farthest during the sitting of the Court next after such return, and for default of appearing, or discovering what monies, &e., he has in his possession or power, judgment shall be given against him.

It has been insisted, in argument, that the language employed is imperative and admits the exercise of no discretion on the part ' of the Court in permitting a defaulting garnishee to make his réturn, under any circumstances, after the time limited for that purpose. For a construction of the Act of 1744, it is only necessary to refer to the case of Green vs. McDonnell, (1 Bail. 304,) which decided that the neglect of the garnishee must be wilful and that the Court would determine, from all the circumstances, whether the degree of negligence had been such as would or would not excuse the default. This construction was afterwards re-affirmed in the case of Hunter & Brown vs. Andrews, 2 Sp. 73.

The garnishees in this case had discovered and returned, in other attachments which had been issued against the absent debtors, all the monies, goods, chattels, debts, or books of account in their possession or power, and denied all recollection of notice in the case of the plaintiffs. It is manifest that their negligence was not wilful, and great injustice would be done if judgment should be rendered against the garnishees.

This Court is satisfied with the order made by the circuit Judge and the motion is dismissed.

O’Neall, Wardlaw, Withers and Whitner, JJ., concurred.

Motion dismissed.  