#### JOHN W. STEPHENSON v. TODD, PUGH & Co.

Defendants in m-iyinal attaelments may appear and plead without giving hail. In such cases any judgments theretofore obtained against garnishees should he set aside ;

And if money had been collected upon such judgments, that should be repaid to the garnishees; not paid over to the defendant.

{Holmes v. Saelcet, ante 58, cited and approved.)

Note. — The law in the first paragraph above has been modified by th& Code of Civil Procedure.

ORIGINAL ATTACHMENT, before Watts, J, upon motions in the cause at Fall Term 1868, of the Superior Court of Nort h AMPTON.

The attachment was issued on the 14th day of March 1868 and certain persons were summoned as garnishees. At Spring term 1868, judgments were taken against them for the several sums by them confessed to be due to the defendants in the attachment, and these sums were afterwards collected and paid into office under executions returnable to Fall term 1868. ■ At Fall term 1868, the defendants intervened by attorney; and moved (1) to be allowed to plead, (2) to have the judgments against the garnishees set aside, and (3) to have the money which had been paid into the office by the garnishees paid over to the defendant, or Ms assignee.

These motions having been allowed by his Honor, the plaintiff appealed.

Peebles & Peebles, for the appellant.

1. By replevying, the defendant did not release the plaintiff's hold upon the fund raised from the garnishees. Simpson *369v. Harvey, 1 D. & B., 208; Spruill v. Trader, 5 Jon. 42; Parker v. Gilreath, 7 Ire. 400.

2. At all events, the motion here was made too late. Washington v. Sanders, 2 Dev. 345. '

3. In such case also, the Code of Civil Procedure requires an undertaking from the party who replevies, § 213. That section repeals former provisions. State v. Woodside, 9 Ire. 496.

4. 'The judgment against the garnishees was regular, and could not be set aside at a subsequent term. Davis v. Shaver, Phil. 18; Skinner v. Moóre, 2D. & B., 138.

5. The Court erred in taking the money raised out of the garnishees, from the plaintiff, and giving it to the defendant. Yirbro v. State Bank, 1 Dev. 25; Sanford v.- Boosa, 12 John. 162; Hill v. Child, 3 Dev. 36b; Washington v. Sanders, ubi sup.

Bragg, contra.

1. The defendant could replevy without bail. Holmes v^ Sackett, ante 58, Bill of Rights, § 16.

2. The practice in this case is governed by the Rev. Code-Const. Art. 4, § 25, Code § 8.

8. The judgment against garnishees in attachments is only provisional, and abides the issue of the suit; being in satisfaction of the judgment for the plaintiff if he get one. Freeman v. Crist, 1 D. & B., 217; Myers v. Beeman, 9 Ire. 116; Tindell' v. Wall, Bus. 3; Ormand v. Moye, 11 Ire. 564; Bryan v. Creen,, 3 Ire. Eq. 169; Skinner v. Moore, 2 D. & B., pp. 148 an&i 150 — 1.

4. After the replevy, the money being in Court, the defendants had a right to it; it may not be very material how it gofe there.

PbabsoN, C. J.

At common law, judgment could not*b’®> entered against a party, unless he appeared and made defehcej. hence the necessity for distress infinite, and outlawry. Byjth'©-Court act of 1777, it is provided, that if the writ be served^, *370and tbe defendant fails to appear, judgment by default maybe entered. But if be absconded or so concealed bimself that tbe . process could not be served, no judgment could be bad. To remedy this evil, and to compel an appearance, it is provided that, in sucb cases, tbe property of tbe party may be attached, and any person indebted to bim, may be summoned as garnishee, a judgment entered, and the debt collected, subject to the final judgment in tbe action. If the defendant appeared and replevied, — that is, gave bail to tbe action, the property attached was discharged, and tbe judgment against tbe garnishee was set aside; and if the money had been collected, it was returned to tbe garnishee; for, tbe object being accomplished, that is, tbe appearance of the defendant being compelled, all that bad been done to effect that object, passed for nothing.

On tbe argument, a distinction was suggested between a discharge of tbe property, by giving bail to tbe action; and setting aside tbe judgment that bad been taken against tbe garnishee. There is no ground, on principle, for this distinction. Tbe same reason applies to both cases, and tbe supposed 'distinction is not supported by any authority.

It was also urged, if the judgment against tbe garnishee is. ■set aside, tbe money paid into Court to abide the final judgment, ought to be taken out by the defendant in the action; for it was collected upon a debt admitted to be due to him, and he should have it in discharge of the debt.

This would seem to be só at first blush, and his Honor adopted that conclusion, but, on consideration, the position will be found untenable. The defendant was not a party to the ■proceedings against the garnishee, and is not bound by it; he may allege a larger sum to be due to him than that confessed, and there is no mode by which, in a proceeding at law, he can "be required to accept that amount, and release all further claim; so the only way is to undo what has been done in order to ..compel the defendant to appear, and put all parties in statu ,-gno.

.. Since the act abolishing imprisonment for debt, it is settled, *371that a defendant may enter bis appearance, and plead to tbe action, without giving bail. Holmes v. Saclceti, Phil. 58.

This discharges the property attached, and also vacates the judgment against the garnishee, and gives him the right to take the money out of Court. It will be remarked, that after •the abolishment of imprisonment for debt, the remedy by ■attachment was of little or no effect. But the Code oí Civil Procedure puts the matter on a much better footing.

So much of the order, as allows the defendant to enter his appearance and pleadjwithout giving bail, is affirmed; so much as directs the judgment against the garnishees to be set aside, is affirmed. But so much as directs the money collected from •the garnishees to be paid to the defendant, is reversed, and it is ordered that the money^ collected from the garnishees be paid back to them respectively.

• The plaintiff will pay the costs.

Per Curiam. Ordered accordingly.