#### Welch vs. Gurley.

rr'*HIS action was instituted by process of attachment; and Mrs. Stead, as the administratrix of her disceased husband, was summoned as a garnishee, to discover whether her intestate did not owe a debt to Gurley, the defendant. It came up by appeal from the county court of Onslow, and was now argued by Gaston and Haywood for the gaenishee, and by Jocelyn for the plaintiff..

The counsel for the garnishee,

made a previous question, t© *335wit*, whether an administratrix could be compelled, as a garnishee, to appear and answer.

Per curiam

Taylor, Judge.

She cannot; because having not contracted the debt, she cannot be presumed enough conu-sant of the transaction to answer. Also, she cannot by plea put upon the record the plea of plene administravit, or bonds, cr judgments outstanding; for no such plea, nor indeed any plea, Is allowed by law to a garnishee. All she could do, would be to answer the interrogatories put to her ; and if in fact she had Judy administered, she might, by a judgment against her as garnishee, be forced to the commission of a devastavit. Should an issue be directed as t© the debt itself between her and the plaintiff, what evidence could be given on the trial? the bond, note or other evidence of the debt, would be in possession of the defendant, and could not be produced on the trial. If 1,-ss evidence than that would do, then she could not tell how to plead as to assets, were she allowed a plea ; whereas if sued by the defendant, she could know by demanding Oyer, before she pleaded of what nature the demand was ; and would defend herself) as to assets, accordingly. If she could on her garnishment; put such defence on the record, which is much to be doubled, then she would be compelled to swear to the plea, which in all other cases she is not obliged to. Morever, if she confessed the debt in part, not knowing precisely the amount, she would be condemned to pay it, and would not he discharged as other garnishees are ; for a second and third creditor might still call ©n her as a garnishee, and proving more of the debt, still due, might have a second and third judgment against her; which is not the case with other garnishees. Also, the assets in the hands of the executor, might by means of an attachment and garnishment, be paralyzed ; for while the executor was held up as a garnishee, no other creditor of the testator ought to be permitted to recover against him, since he is so far bound by the garnishment, as if eventually there should be a condemnation, he will be hound to produce the assets attached in his hands. This would open a wide door to fraud, for just creditors by such means might be kept off at pleasure.

Garnishee discharged.