
    Israel G. Mathis against Caleb Clark.
    attachment, ’has ^tdthl"pL¡nI tiff, as he legally gJimt present ^anc^vsuing to recover the fromosethe gaía,sh6e'
    The plaintiff had issued an attachment against Matthew Lines, a copy of which had been served on the defendant as garnishee. To this a return _ _ . . . ¶ . made by the garnishee, that he had purchased a negro from Lines, the absent debtor, and ° 1 , *or which he had given his note tor 500 dollars; that prior to the attachment being served he paid 300 dollars in part, and that after the service of the attachment he had paid 100 dollars more; that at the time of making the return, the negro for which the note was given, had run away; that he did not answer the description which had been given by Lines at the sale; and that he did not consider himself indebted to the said Lines any thing. At the Court next succeeding the one at which the return was made, the presiding Judge, Mr. Justice Bay, on motion, ordered that the garnishee' should pay into the hands of the Clerk of the Court the 100 dollars which had been paid to Lines after the attachment had been served on the garnishee, from which order an appeal to this Court has been made for the purpose of having it revised.
   The opinion of the Court was delivered by

Mr. Justice Gantt.

It is certainly competent for the plaintiff in this case to avail himself of all the rights and advantages which appertained to the absent debtor respecting what might have been owing from the garnishee, but no more. Suppose, instead of paying the 100 dollars to Lines, the garuishee had retained it in his own possession till the Court, at which the return was made by him, could there have been any pretence of condemnation of that sum for the use of the plaintiff in attachment under the special circumstances set forth in the return ? I think not. If the circumstances stated to have been detailed in the return shall, on investigation, turn out to be correct, then the garnishee will be entitled to a reimbursement of the money paid to Lines on account of this purchase. It is true, that if the garnishee had been bona fide indebted to the absent debtor, then any payment made to him after the attachment levied in his hands could not have been justified. But the event may show that he was not so indebted; and the garnishee, having come to the knowledge of the imposition practised upon him before the return made respecting the negro purchased, and having made a special return thereof, I think the order requiring him to pay the 100 dollars into the hands of the Clerk was illegal, and ought to be set aside: the plaintiff in attachment will have a right to contest the truth of the return made; and so far as he can make it appear, that at the time of the attachment the garnishee was indebted to the absent debtor Lines, so far he will be entitled to recover against him: but on such issue the gar*- © . nishee will have the same right of defence against the attaching creditor Mathis, that he would have if sued by Lines himself.

Grimké, Mott, and Cheves, J. concurred.  