
    
      The President and Directors of the Bank of the State of South Carolina vs. Powell McRa.
    
    1. Writ in attachment lodged 30th May, 1842. Garnishee served 13th June, 1842. Spring Term, 1843, leave granted to the garnishee to make return upon cause being shewn why it was not made the preceding term. Order obtained to file suggestions against the return till 1st August, 1843, but none were filed then or since. Order made March term, 1844, extending the time to 1st July, 1844. After 1st August 1843, the absent debtor died, and before March term, 1844. It was contended that as the garnishee had died after the time had expired within which plaintiffs had obtained' leave to file their suggestions, the case was out of court as to the garnishee. After the return of the writ, the plaintiffs filed their declaration, and after the expiration of the year and day, the usual order for judgment by default had been given. The absent debtor died after the rule to plead had expired. The application for further time to file the suggestions was made within the year and day from the last proceeding in the case, within which time any order may be made, necessary to a final decision, upon satisfactory cause shewn. Held that the case came within the provisions of the Act of 1746, P. L.'212, and the plaintiffs, to the perfection of their interlocutory judgment, had only to issue sci. /a. to the executor or administrator of the deceased debtor, to shew cause why their damages should not be assessed.
    
      Before O’Neall, J. Kershaw, Spring Term, 1844.
    Foreign attachment. The attachment was lodged 30th May,' 1842, and the garnishee, Richard Singleton, was served on the 13th June, 1842. At spring term, 1843, he made his return, under an order of court, granting leave, upon cause shewn, why it had not been made at fall term, 1842. The plaintiffs obtained an order for time to file suggestions against the return till 1st August, 1843, but no suggestions were filed at that time or since. The plaintiffs, at March term, 1844, asked leave to file suggestions, and an order was made by the presiding Judge, granting leave, and extending the time to the first day of July, 1844. Powell McRa, the absent debtor, died after the 1st August, 1843, and before March term, 1844. It seemed that Mr. Singleton had no notice of the motion. His attorney, Mr. DeSaussure, however, had, and attended and argued the question.
    The garnishee, R. Singleton, appealed from the order last made, and moved to reverse the same,
    1. Because he had no notice of the motion.
    2. Because the plaintiffs having failed to file their suggestions within the time prescribed by the order, no such suggestions can now be filed.
    3. Because the absent debtor having died after the time had expired within which the plaintiffs had obtained leave to file their suggestion, the case was out of court, as to the garnishee.
    
      W. F. DeSaussure, for the motion.
    
      J. M. DeSaussure,contra,
    cited 1 Hill, 213; 1 Bay, 284; 1 Treadway Con. Rep. 83.
   Curia, per

Evans, J.

The application for further time to file a suggestion against the garnishee, R. Singleton, was made within a year and a day from the last proceeding in the case, and within that time it is every day’s practice to make any orders which may be necessary to the final decision of the case, upon satisfactory cause being shewn. There is no difference between cases in attachment, and other modes of legal proceedings, in this particular. But it is alleged in the second ground, that as the absent debtor died after the time had expired, within which the plaintiffs had obtained leave to file their suggestions, the case was out of court, as to the.garnishee. To the correct decision of this ground, it is necessary 1 should state that after the return of the writ, the plaintiffs proceeded to file their declaration, and after the expiration of the year and a day, the usual order for judgment by default had been given. After this, Powell McRa, the absent debtor, died. These facts are not stated in the report, but they were affirmed by the plaintiff’s counsel, and not controverted on the other side. What might have been the effect of the death of the absent debtor before the expiration of the rule to plead, it is not necessary now to decide. 3 Brev. Rep. 23. In the case of Crocker & Hitchburn vs. Ratcliffe, it was decided that the action would abate, but it is manifest that that decision was made on the assumption that the proceeding by attachment was a proceeding in personam ; the attaching of the defendant’s goods, was only a mode of making him a party. But this notion is now wholly exploded, and it is now held to be strictly a proceeding in rem. By the Attachment Act, the defendant may, at any time, within a year and a day, dissolve the attachment by entering special bail; and by a late Act he may appear and plead to the action without special bail. It might seem from this, that if within that time he died, the action would abate; but upon this, it is not intended to express any definite opinion, as the case does not require it, and I have learned, from experience, that it is better to decide the point alone involved in the case, and to decide other questions when they arise, and when the attention of the court has been exclusively directed to them.

Assuming, in this case, that the death of McRa occurred after the judgment by default, the case comes within the provisions of the Act of 1746, Public Laws, 212, and the plaintiffs, to the perfection of their interlocutory judgment, have only to issue scire facias against the executor or administrator of McRa, to shew cause .why their damages should not be assessed. DuBose vs. Du Bose, Chev. Rep. 29. This question was decided in the case of Kincaid vs. Blake, 1 Bailey, 20, where it was held, that the death of the defendant after interlocutory judgment did not abate the suit. That like this was a case in attachment.

We are of opinion the motion should be dismissed on both grounds, and it is so ordered.

. Richardson, O’Neall, Butler, Wardlaw and Frost, JJ. concurred.  