
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1811.
    Gage v. Wilburn.
    Where the garnishee is put to plead the matter contested on his return as garnishee, the issue made up ought to be as broad as the evidence offered to prove the matter put in issue by the plaintiff. Therefore, where the plaintiff, in his suggestion, charged the garnishee with being indebted to the absent debtor for a particular service done, or promise made, and issue was thereon; and the plaintiff gave in evidence an ac-knowledgement of the garnishee, that a general account presented to him was just, which general account purported to be an account between the absent debtor and the garnishee, embracing a variety of items pro and con., and including the particular item in issue ; and exhibiting a balance in favor of the absent debtor to a greater amount than was put in issue; it was adjudged that the evidence did not prove the issue ; that in order to have had the benefit-of the evidence offered, the suggestion should have put the balance of the account acknowledged in issue.
    Motion for a new trial, before Geimke, J., in Union district. The plaintiff went to trial on a foreign attachment against one Johnson. The defendant, Wilburn, had been summoned as garnishee. By the attachment act of 1744, it is provided, that if a person, in whose hands the effects, credits, &c., of an absent debtor is attached, should deny that he has any thing in his hands, power, i>r possession, belonging to the absentee, or that he is himself indebted to-the-absentee; and the creditor of the absent debtor should put him to plead such matter of defence, which he may do, the same shall be tried by a jury. In the present case, the plaintiff had put Wilburn, the garnishee, to plead his matter of defence, or matter of his return to the summons, as garnishee, by filing a suggestion against him, in which he charged Wilburn with being indebted to Johnson, the absent debtor, in the sum of $112, for build, ing a bridge. To this Wilburn answered, by pleading that he was not indebted, at the time of the summons served on him, or at any time since, to the absentee, in manner and form, as charged in ■the suggestion ; and issue was thereon joined.
    The evidence given to the jury in proof of the fact alleged, was, that a stated account of varibus dealings between the absent debtor, and Wilburn, had been presented to the latter, some time prior to the service of the summons, and that Wilburn acknowledged the correctness of the account as stated. The account consisted of various charges relating to the sale and exchange of horses, &c.„ amounting to about $800. Among other items of the account, charged to the present defendant, Wilburn, and placed to the credit J°hnson 'n the account, was one for building a bridge, charged at $112. This evidence was objected to at the trial of the issue in this case; because the issue presented no claim of the absent debtor, except the specific claim for building a bridge ; and the evidence included a variety of other accounts, and respected a balance struck upon all those accounts ; and that it did not prove anything specifically due for the bridge.
    This objection was overruled, and the plaintiff had a verdict, which the present motion sought to set aside.
    The case was submitted without argument.
    Farrow, for plaintiff.
    Hooker, for defendant.
   Brevard, J.,

delivered the opinion of the court in favor of the application. The evidence did not maintain the issue joined be. tween the parties. There were credits in the account acknow. ledged, which were sufficient to extinguish the charge for building a bridge. The acknowledgment related to the whole account stated, and not to a part. The account ought not to have been garbled, and a particular charge selected. The garnishee had no notice by the suggestion, that he would be required to defend himself against the payment of a balance due on a general account. If he had been apprised of the nature of the proof which was offered, the acknowledgment of the correctness of a general account, he might have been prepared with evidence to shew, that the balance appearing due by him, on the statement acknowledged by him to be correct, liad been afterwards paid. But for any thing that appears to the contrary, he was only prepared to show that the particular item selected from the account, and stated as that on which he was to be charged, had been paid, or discounted on a partial settlement of accounts. The issue ought to have been as broad as the evidence necessary to prove it. It should have been on the balance stated to be due on the general account, and not on any particular item of the account, although covered by the balance due.

New trial granted.  