
    
      Eliza Dawkins, Ex'rx. vs. Phœbe Gault.
    
    Garnishee in attachment made return on oath claiming the goods as her own under a bill of sale from the absent debtor: plaintiff filed a suggestion contesting the return, on the ground, that the sale was fraudulent as against creditors: Held, that defendant could not give in evidence her general good character to rebut the proof of fraud.
    Where an actual fraud is charged, perpetrated with a fraudulent intent, and the proof of the charge consists of circumstances, then, good character, as in a case of ciime, might be resorted to as a eircumstanae to prove innocence: Per O’Neall, J.
    On the trial of a suggestion contesting a garnishee’s return, the return is not, like an answer in Equity, evidence for the garnishee.
    
      Before O’Neall, J. at Union, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows.
    “The plaintiff was a creditor of Jefferson Gault, an absconding debtor. She levied an attachment on a mare, wagon and gears. They were replevied by the defendant, who was served with a copy of the writ of attachment, as a garnishee.— She filed a return, on oath, claiming the goods attached as her own, by purchase from the absent debtor, and denying that she had any goods, chattels, monies, debts or books of account, belonging to him, in her power or possession. The plaintiff filed a suggestion contesting this return.
    “The indebtedness of Jefferson Gault, to probably the amount of all his property in possession, was proved. His intent to so dispose of his property as to prevent his creditors from being-paid, was fully proved by John McKissick, Esq.
    “ The defendant produced a bill of sale, from Jefferson Gault, to her, for the mare, the wagon and gears, dated 31st December, 1849, in consideration of $1 50. Jefferson Gault procured Wm. B. Hames and James Gault to witness this paper. They proved that they saw the money paid, and one of the withesses said one of the bills paid, he thought, was one he paid to the defendant for her land. The defendant was the mother of Jefferson Gault; she and he lived together; they were about removing together to Georgia. There was no actual delivery of the property. The paper was executed Monday evening. Jefferson Gault left on Tuesday night. I did not think the defendant’s character was at all in issue, and, therefore, refused evidence on that matter. The return of the garnishee was no evidence; it was a mere claim of right, and did not require to be contradicted like an answer in Equity. The case was submitted to the jury on the evidence. They found the sale from Jefferson Gault to the defendant, to be fraudulent.”
    The defendant appealed, and now moved for a new trial, on the grounds,
    1st. Because his Honor would not permit the defendant to prove her general good character, in answer to a direct charge of base fraud.
    2d. Because his Honor refused to permit the return of the garnishee to be read in evidence, and said to the jury the rule in Equity, requiring two witnesses, as to an' answer, did not apply.
    
      Thomson, for motion.
    
      Dawkins, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The grounds of appeal, presented by the defendant, do not merit any thing like consideration: but our desire to administer justice, so as to satisfy the most querulous, if possible, leads me to give very summary answers to them.

1st. The character of the defendant was in no shape in issue. She was in court asserting a right, which the plaintiff alleged could not affect her, as a creditor, on account of fraud in the vendor, and in which the defendant might innocently have participated, although she became thereby legally infected. There is one case, where the defendant’s character might be properly given in evidence in defence. Where an actual fraud is charged, perpetrated with a fraudulent intent, and the proof of the charge consists of circumstances, then, good character, as in a case of crime, might be resorted to, as a circumstance to prove innocence. 1 Green. Ev. § 54-5; Smets vs. Plunket, (1 Strob. 372).

2d. Were it not for the age and experience of my friend, the attorney for the defendant, I could not be induced to treat the second ground seriously. In attachment, the party found in. possession of goods, is allowed to claim them, and on filing an affidavit, as garnishee, that he has no goods, chattels, debts, and books of account belonging to the absent debtor, — if the plaintiff is satisfied therewith, there is an end of the matter:— but if he is not. he may file his suggestion contesting the return, and thereupon the defendant is put to plead, and the case is tried like any other case at law. The plaintiff in attachment is bound to shew title in his debtor: if he fails, there is an end of the contest: but if he succeeds, the defendant cannot, as this defendant wished to do, rely upon her return, as garnishee, as evidence. It is nothing in such a contest.

The motion is dismissed.

Evans, Wardlaw, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.  