
    J. J. Gracy & Co. vs. Fred. Coates.
    ,'fudgment by default may be taken against a garnishee in. attachment, as in other cases.
    But the garnishee is not liable for the costs recovered against the absent debtor, except where it appeal's that he has funds in his hands sufficient for that purpose. In those cases they are given by the act, and in no other.
    Tried before Mr. Justice Johnson, Newberry, Fall Term, 1822.
    • THE plaintiff in this case had obtained a domestic attachment against the goods and effects of the defendant, and had summoned James Bruton, as a garnishee, to declare how much he was indebted to the absconding debt- or ; he neglected to appear or to make any return to the summons, and a judgment by default was ordered ’to be entered up against him for the amount of the plaintiffs debt. Execution thereupon was issued against him for the debt and costs, and also for the costs of the suit against the absent debtor. The money was paid into the hands of the sheriff, and at the same time, notice was given to him not to pay it over to the plaintiff, as he would be called upon to refund the money, on the ground of the illegality of the proceedings.
    A motion was at this time made to set aside the judgInént and execution, on the ground that a garnishee does not subject himself to a judgment by default of appearance, but that lie should be compelled to appear, and de«lare what he has in his hands belonging to the absent debtor, or how much he is indebted to him, and if that motion should not succeed, that the execution should be set aside, so far as related to the costs of the attachment, and that the sheriff -might be ordered to refund the money.
    These motions being refused in the court below, a motion was now made to reverse that decision.
   Mr. Justice Nott

delivered the opinion of the court:

With regard to the question, whether a judgment can be entered up against a garnishee for default of appearance, it would be-sufficient to say that such has been the practice ever since the-passing of the act authorizing domestic attachments, and if an uniform practice of nearly forty years does not settle the law, we can never know what the law is. And although it does not seem to comport with the letter of the act, groat inconvenience would result from a contrary construction. No judgment could even ever be obtained against a garnishee, after an attachment had been served upon him, if ho could elude the further process of the court. I think therefore that we ought not to disturb a practice which has prevailed so long, and from which no inconvenience has hitherto been felt.

In the case of Faber vs. Bower, (2 Bay, 124,) the court has decided this question, and supported this method of proceeding on a domestic attachment. It is true that case arose under the act of 1788, and the court seem to admit that'the act of 1785, would require a different construction, but that- distinction has never been observed, and I can see no foundation for it, and no good reason can be given why different modes of proceeding should prevail in different parts of the state.

I think however that the garnishee is not liable for the costs recovered against the absent debtor, except when it appears that be, has funds in his hands sufficient for that purpose. i

Oneal 8,- Johnson, for the motion.

Qaldwell, contra.

In those cases they are given by the act, and in no óther.

The motion is therefore refused, except so far as relates to costs.

Justices Huger, Johnson, Gantt and Colcocls, concur-' red  