
    
      Cambyses Hunter vs. W. G. Andrews. C. B. Brown vs. The same.
    
    1. A verdict having been obtained against an absent debtor, in assumpsit, by foreign attachment, a motion was made for leave to enter up judgment, and have execution against the garnishee, who had failed to make any return. It was resisted upon an affidavit, submitted by the garnishee, and also by the sheriff, by which it appeared that when the attachments were lodged, a negro woman was the only property in possession of the garnishee, that had belonged to the absent debtor ; that this property was subject to the lien of executions against him, and was levied on and sold by the sheriff, and that both the sheriff and the garnishee understood that by an arrangement between the latter and the creditors, he was not to be further troubled after giving up the negro. By the sheriff’s return, it appeared that a copy had been delivered to the garnishee by a deputy, which not having been sworn to by him, was sworn to by the sheriff, at the trial. The garnishee swore that he did not remember ever having received a copy writ. The writ in attachment was returnable to October term, 1841.
    2. Motion refused by the presiding Judge, and leave granted the garnishee to make a return nunc pro tunc; and held, under the circumstances, that the discretion of the Circuit Court was properly exercised.
    3. The case of Green vs. McDonnell, 1 Bailey, 304, cited and approved.
    
      Before Wardlaw, J. Fall Term, 1843.
    These were actions of Assumpsit by Foreign Attachment.
    In each of these cases, the writ was returnable to October term, 1841. The sheriff’s return stated that, by a deputy, a copy had been delivered to John Mace, a garnishee, which return had never been sworn to by the deputy, but at this trial was sworn to by the sheriff. Verdict having been obtained against the absent debtor, a motion was made by the plaintiff’s attorney for leave to enter judgment and have execution against John Mace, as garnishee. This was resisted by Mace, and his affidavit and the affidavit of the sheriff produced, from which it appeared that at the lodgment of the attachments, a negro woman that had belonged to the absent debtor, and was subject to the lien of executions against him, was in possession of. Mace, and was levied on and sold by the sheriff; that nothing else belonging to the absent debtor was, or was suspected to be, in the hands of Mace; and that by the understanding which the sheriff and Mace had of the arrangements made between Mace and the creditors, Mace was not to be further troubled after giving up the negro. Mace also swore that he had no remembrance of ever having received a copy writ.
    Upon these affidavits, the presiding Judge refused the motion of the plaintiff’s attorney, and granted leave for Mace to make a return nunc pi o tunc.
    
    The plaintiffs gave notice that they would move the Court of Appeals to set aside the order allowing the garnishee, John Mace, to make his return, and for leave to enter up judgment against the said garnishee by default, on the following grounds:
    1. Because the defendant had no right, after four terms of the court to which the writ was returnable, to make his return.
    2. Because the cause shewn was not sufficient to allow the garnishee to make his return, when the plaintiffs claimed judgment against him.
    
      Bailey cp Harllee, for the motion.--, contra.
   Oaria, per

Wardlaw, J.

This court is satisfied with the view taken by Judge Colcock, in the case of Green vs. McDonnell, 1 Bail. 304, of the obligation imposed by the Attachment Act, upon the garnishee to make his return, and of the discretion of the court, upon strong circumstances shewn by him, to excuse his neglect of complying, literally, with the requisitions of the Act. The circumstances shewn by the garnishee, Mace, in these cases, are strong; and after the security into which he was beguiled when he gave up the only property of the absent debtor, ever alleged to be in his hands, to subject him to the severe penalty of paying the whole debt recovered against the absent debtor, because he neglected'to make the return of nothing in his hands, would be injustice and oppression. The discretion of the circuit court, has been properly exercised, and this court perceiyes no reason for interference. The motions are dismissed/

Richardson, O’Neall, Evans and Butler, JJ. concurred.  