
    Goldthwaite & Evans vs. Lewis H. Bryant.
    The right of property in goods attached, if claimed by the garnishee, or by another, may be tried in the form of a feigned issue, wherein the garnishee or other claimant is plaintiíF, as well as in any other form.
    Where a third person, not served as a garnishee, lays claim to the goods attached, and is allowed 'to come in with the privilege of a garnishee, and to make up a feigned issue as plaintiff, to try the right of property, whereby he gains possession of the goods, if he afterwards discontinue, and withdraw the record, he cannot then require a suggestion to be filed by the plaintiff in attachment, who is entitled to judgment against him as a defaulting garnishee.
    Before Earle, J., at Charleston, May Term, 1839.
    A foreign attachment, at the suit of the plaintiffs, against the defendant, was levied on a mare at livery, and Matthews, the keeper of the stables, was made a garnishee. An order for sale was made, and rescinded at the instance of one Naylor, who claimed the mare, and he had leave to come in as garnishee, and contest the right of property. An issue was made up, and stood for trial. When called, the attorney of Naylor moved for leave to discontinue, which being granted, he withdrew the record. Afterwards, during the term, a motion was made by the attorney of the plaintiffs in attachment, for leave to sign judgment against Naylor as *defaulting garnishee ; which was resisted, upon the ground that Naylor having denied the right of property in the absent debtor, it was for the plaintiffs to become the actors in the suggestion, and to disprove the return. But the Circuit Court granted the order for judgment against him, which he moved the Court of Appeals to set aside.
    Appeal determined at Charleston, February, 1840.
   Curia, per

Earle, J.

Whatever may be the correct practice in regard to issues made up to try the right of property, under the attachment Act, it is unnecessary to determine. The practice has been very general, if not uniform, in Charleston, to do this in the form of a feigned issue, in which the party claiming in opposition to the attaching creditor, is the plaintiff. Such was the case here ; and no doubt, the question can as well be tried in that form as any other. When Naylor came in and claimed title, he placed himself in the position of being an actor in the subsequent proceeding; he obtained possession of the mare, and rendered an action of trover unnecessary. The discontinuance was ordered at the instance of his counsel. If he had repudiated the issue, he could not have made that motion. By making it, he admitted himself to be the plaintiff in the proceeding ; as having instituted, and as having a right to abandon it. Having discontinued, the condition on which he rescinded the order of sale was not complied with, and the parties must be restored to the position which they occupied when he interposed. He can claim no better position than Matthews, in whose place he was substituted, that of a garnishee in possession, admitting the right of the absent debtor. It would be productive both of hardship and delay, to allow him to shift his ground, and to have now all the advantages of an original garnishee, denying the right of the absent debtor ; conceding, in such case, the correct practice to be, that the plaintiff in attachment should be the actor in the suggestion and issue

See 1 Rich., 460; 1 Strob., 244. An.

Thompson, for the motion. Bailey, contra.

The judgment of the Circuit Court is affirmed.

Gantt, Richardson, O’Neall, and Butler, JJ., concurred; Evans, absent,  