
    Thomas B. Creach v. Peter L. Delane, Garnishee.
    The Court may, at its discretion, receive the return of a garnishee at the second Court, 
    
    The affidavit, in an attachment under the Act of Assembly, need not be made at the precise time or filing the declaration.
    This case was tried before Mr. Justice Grimke, at Columbia.
    It appeared that the garnishee had been served with a copy of the writ of attachment, which was returnable to October Term, 1814, and that the garnishee made no return to that term ; but on the fourth day of the following March Term, he offered a return. An objection was made on the part of the plaintiff to its being received, on the ground that it came too late.
    The then presiding judge declined determining on the validity of the objection, or whether the return was in due time, until judgment should be obtained against the principal defendant.
    In the meantime the garnishee died. Afterwards, in October Term, 1816, a judgment was obtained against the principal defendant, and a motion made to enter up final judgment nunc pro tunc, against the garnishee for the debt proved.
    The Court overruled the motion, because it appeared that the return was made to the proper term, and in due time.
    The garnishee also moved to set aside the proceedings in attachment, because the Act requires that an affidavit of the debt should be made at the time of filing the declaration; and it appeared in this case, that the affidavit had been made on the 24th October, 1814, and that the declaration was filed on the 29th of the same month and year.
    
      
       9 Rich. 124; 1 Bail. 304; 2 Sp. 74; 2 McC. 224, 2 vol. 489.
    
   The opinion of the Court was delivered by

Grimke J.

I did not hesitate to refuse the latter motion, because I conceived, that although such were the precise terms of the act, yet, that a constant and uniform practice to the contrary had prevailed in this State ; for attachments have so frequently and so repeatedly been issued, and affidavits made in some of the northern States, and in England, France, &e., that it ought not now to be contested or varied. It will be seen at once, that unless a party is present to make the affidavit at the filing of the declaration, a foreigner or even one of our own countrymen, who should accidentally be absent from the State, might be deprived of the advantage accruing under the attachment act.

Blanding, for the motion. Harper and Clifton, contra.

I am, therefore, of opinion, that this motion should be discharged.

Upon the other ground, whether the return was made in time, the court is'not disposed, under the circumstances of this case, to reverse the decision. I take it for granted, that this court will not adhere as literally to the strict letter of the law, as to do injustice in any case, but particularly in cases addressed to the discretion of a judge.

Now it appears that the presiding judge in March, 1814, declined any interference on the part of the garnishee, so as to protect him from being answerable ; Whereas, had he done so, the defendant garnishee, at the ^me> might have satisfied his mind why the return *had not been made to the preceding term, according to the exigency of the suit. In the mean time the garnishee dies, when it was wholly out of his power to satisfy me why the return had not been made. Could I then, with any degree of propriety have determined that the return was made out of time, and that although, (perhaps,) he might have had the best reasons for not making his return before, yet, as in the first instance, it does not appear that he was heard, and in the second, that he was dead, and could urge no reasons, he should be saddled with a considerable debt not his own, and when, from his return, it appeared, that he had not one shilling of the absent debtor’s_effeets or property in his power or possession ?

I must observe, that these two points were not argued at the Court below, but a decision was called for to enable the parties to appeal; for it was said, that which ever way the decision led, it would afford a ground for bringing up this case to this court. Upon reviewing the desultory opinion I have delivered, I am convinced that the one which I then formed, was founded in just legal discretion.

■ I am, therefore, for discharging this motion.

Coloook and Johnson, JJ., concurred.

Nott, J.

I am of opinion the Court may, in its discretion, receive the return of a garnishee at the second Court, and I consider the return in this case as furnishing, on its face, a good cause why it should have been received.

I therefore, concur in the opinion which has been delivered.

Cheves, J.

Under the special circumstances of the case, I concur.  