ATTACHMENTS, (against non-residents.) Act of February 11, 1819-January 1, 1820. R. C. ch. 123. as the court may allow for good cause shewn, the court may proceed to take such proof as the complainant shall offer; and, if they shall, thereupon, be satisfied of the justice of the demand, (d) they may order the bill to be taken as confessed, and make such order and decree therein, as shall appear just, and the surety, before the debt become payable, Quere, whether, in such case, the surety had a right, under the statute 1 Rev. Code, c. 116, 6, to demand that the creditor should sue out and prosecute such attachment against the principal debtor? Ibid. (d) An attachment lies to secure a debt payable at a future day; and the property in the hands of the garnishee, is bound from the service of the subpana, so as to inhibit the absent defendant's making a transfer thereof, even for the benefit of a creditor, whose claim is due. It lies to secure an endorser of a note, not at maturity. Williamson et al. v. Bowie et al. 6 Munf. 176. Where the surety to a bond has removed from the commonwealth, leaving the principal within it, the obligee may proceed against the surety as an absent debtor, and attach any effects or debts he may have in the commonwealth. The principal must be brought before the court, before a decree can be obIf the obligee tained against the surety. has parted with any security, by which the debt or any part of it, might have been satisfied, the surety will be discharged pro tanto. Loop v. Summers, 3 Rand. 511. See also 9 Leigh, 164. In an attachment in chancery, against an absentee and a home defendant, having in his hands effects of, or debts due to, such absentee, a decree cannot be entered against the home defendant, until by legal and regular proceedings, the attaching creditor, has established his claim against the absentee. If the home defendant, appear not to be indebted to the absentee, but to hold effects belonging to him, by a title not effectual against creditors, or without any title whatever, he should be considered personally responsible, for as much as he may have consumed, or appropriated to his own use; for which, a decree may be rendred against him personally, in the first instance, holding On foreign attachment, against absent de- The plaintiff in the attachment stands on no better footing as to the property attached, than the absent defendant; therefore, if the absent defendant parts with his interest plf. takes nothing; as, if a chose in action bona fide, before the subpana is served, the be equitably assigned, the assignor, has no attachable property in the chose, tho' the obVaughan, 3 ligor, &c. may not have received notice, prior to the attachment. See Wilson v. Darison, 5 Munf. 178; U. States v. Sumner, 132, 146; and Mankin v. ChandBinney, 394; U. S. v. Cutts, adm'r of Lyde, ler & Co. 2 Brock. R. 125. And if the garnishee has a lien on the property, the plf. must discharge that lien before he can take thans, 5 Taunt. 558; Hathaway v. Russell, the property out of his hands. Giles.. Na16 Mas. R. 473; Picquet v. Swan et al. 4 Mason's R. 465. In the case of a foreign attachment in chancery, to attach a debt alleged to be due from a home deft. to the absent deft. to satisfy a debt due from the absentee to the plf. the garnishee may set up any equitable deno debt to the absent defendant. Glassell v. fence, which shews that in equity he owes Thomas, 3 Leigh, 113. The first attachment has no priority; the court will distribute the funds rateably among all the attaching creditors. This has been the uniform practice before and since the revolution, per Call, arg. to which Ch. Taylor assented. June T. 1819. Qu. as to the legality of this practice. Act of February 11, 1819—January 1, 1820. R. C. ch. 123. may enforce due performance and execution thereof, by such ways and means, as have heretofore been used for enforcing other decrees, requiring the plaintiff or plaintiffs to give security, as the court shall approve, for abiding such future order as may be made for restoring the estate or effects to the absent defendant or defendants, upon his or their appearance and answering the bill: and, if the plaintiff or plaintiffs shall refuse to give, or not be able to procure such security, the effects shall remain under the direction of the court, in the hands of a receiver, or otherwise, for so long a time, and shall then be finally disposed of in such manner, as to the court shall seem just. Oct. 1777, 9 Stat. Larg. 396; 1792, c. 78, R. C.; Feb. 18, 1812, c. 16. 3. 3. No sale, however, of any lands or tenements belonging to such absent defendant shall be decreed, for the satisfaction of any debt appearing to be due from him, unless the personal fund in the power of the court shall be insufficient for that purpose; nor shall any such sale be decreed, until such lands or tenements shall have been fairly valued by discreet commissioners, for that purpose appointed by the court, and acting upon oath, and the valuation so made shall have been returned into court; nor shall such sale be decreed, until the plaintiff, or some one for him, shall have filed in court, or in the clerk's office, bond with good security, in double the value of such lands or tenements, for performing the future orders and decrees of the court in that behalf.(a) Rev. 1819. 4. 4. If any person or persons, who shall be out of the commonwealth at the time any decree is pronounced as aforesaid, shall, within seven years from the passing such decree, return and appear openly; or, in case of his or her death, if his or her heir, executor or administrator, shall, within the said seven years, be and appear openly within this commonwealth, the plaintiff or plaintiffs, their executors or administrators, shall serve such person or persons so returning or appearing, with a copy of the decree, within a reasonable time after such return or appearance shall be known to the plaintiff or plaintiffs; and thereupon, such defendant or defendants, or their representatives, may, within twelve months after such service, or those defendants not served with a copy, or their representatives, may, within seven years after the decree pronounced, appear in court, and petition to have the cause reheard; and, upon their paying down, or giving security for payment of such costs as the court shall think reasonable, they shall be admitted to answer the bill, and issue may be joined, and witnesses on both sides examined, and such other proceedings, decree and execution had, as may be just and right in the cause: but, if the several defendants, or their representatives, upon whom the decree shall be so served, shall not, within twelve months after such service, and the other defendants or their representatives, upon whom no such service is made, shall not within seven years from the time of the decree pronounced, appear and petition to have the cause reheard as aforesaid, and pay, or secure to be paid, such costs as the court shall think reasonable, all and every decree to be made in pursuance of this act, against any defendant or defendants so failing, shall stand absolutely confirmed against him, her or them; and at the end of such term the court may make such further order for quieting the plaintiff or plaintiffs in any such suits, in their possession and title to the estate and effects so sequestered or made liable, as to them shall seem reasonable. Oct. 1777, 9 Stat. Larg. 396; 1792, c. 78, R. C. (a) On a foreign attachment, to subject lands of the absent defendant debtor to a debt claimed by the attaching creditor, payable in instalments, some of which have and others have not fallen due, at the time of the decree, the court ought not to direct the sale of the subject, to satisfy more than the instalments already due; but should hold the attachment a lien on the subject for the instalments growing due. Watts et al. v. Kinney's adm'x, 3 Leigh, 272. Act of March 2, 1839, ch. 64, p. 41. Jee 5. § 1. That whenever any creditor in this commonwealth has just cause of action, legal or equitable, against any defendant who is out of the commonwealth, it shall be lawful for such creditor, upon making affidavit that his debtor is bona fide a non-resident of the state, and is justly indebted to him in a sum not exceeding twenty dollars, exclusive of interest, to sue out a warrant of attachment against any such absent defendant, and cause the same to be levied on the effects of, or the debts due to, such absentee, in the same manner as attachments against absconding debtors are now levied on such effects or debts, and the said warrant of attachment shall be obtained from and returnable be-2 fore any justice of the peace for the county or corporation where the effects of,. or debts due to, any such absentee may be found. And the justice before whom any such warrant may be returned, shall hear and determine the same according to the rules and regulations of the courts of chancery in like cases, (b) except that an order of publication against any such absentee shall be made and posted at the door of the courthouse of the county or corporation for one month, and need not be published in any newspaper. 6. § 2. That before any money shall be paid over, or any effects delivered to any creditor or creditors, under the authority of this act, he or they shall be required by the justice rendering the judgment, to give bond and security to be approved by him, in the sum of one hundred dollars, payable to the absent creditor, conditioned to refund or return the same, with interest and costs, at any time within two years, in case it shall appear that the debt or demand for which judgment had been rendered, was not bona fide due or owing from such absent defendant; and also to pay all costs and damages which may have accrued by suing out the said attachment; and in every action upon any such bond, the proof that any such debt, or the amount for which such judgment may have been given, was due from the absentee to the plaintiff in the attachment, shall devolve on the latter, and the judgment shall not be taken as evidence thereof. 7. § 3. That nothing in this act contained shall be so construed as to authorize any justice of the peace to issue any execution on such judgments, or to entertain jurisdiction in any case by virtue of this act, where the debt or demand shall exceed twenty dollars, exclusive of interest and costs. 8. § 4. That all judgments rendered under this act, shall, together with the bond required of the plaintiff, and all papers relating to the debt, be returned to the clerk of the county or corporation court, to be by him filed and preserved; and he may issue executions thereupon, as in other cases, for which service he shall be entitled to a fee of fifty cents, in addition to the fees now allowed by law for similar services. (b) See act concerning executions and new trials in cases upon warrants: Acts 1840, c. 58, p. 50. age ATTACHMENTS, (against absconding debtors.) When debtor is removing or conceals By whom granted, and on what condi- Before whom returnable, to whom di 3p rected, and how executed, 1 - 8 9 When debt is less than $ 10, Judgment and execution against gar 1,4 1,2 When may be granted and executed on nishee, Garnishee, when to appear-must an- 1,13 When amounting to $ 10, 12 12 for debts less than $10, 12 7 Attachments, how repleviable, 5 Slaves and live stock, when attached, how supported, 14 Officer's responsibility, 6 Act of February 11, 1819—January 1, 1820. R. C. ch. 123. 1. § 6. If any person shall make complaint to any justice of the peace,(a) that his debtor is removing out of the county or corporation privately, or absconds or conceals(1) himself, so that the ordinary process of law cannot be served on him, such justice shall grant an attachment against the estate of such debtor, or so much thereof as shall be sufficient to satisfy the debt and costs of such complainant; which attachment, where the debt or demand shall exceed ten dollars, or four hundred pounds of tobacco, shall be returnable to the next county or corporation court, and directed to, and served by, the sheriff or his under-sheriff, unless in case where the sheriff is a party interested, and then the same shall be directed to, and served by, a coroner or serjeant; and it shall be lawful for such sheriff or officer, to serve and levy the same, upon the slaves, goods and chattels of the party absconding, wherever the same shall be found,(2) or in the hands of any person indebted to, or having any effects of, the party absconding, and to summon such garnishee or garnishees, to appear at the next court, to be held for the said county or corporation, there to answer upon oath, what he or she is indebted to such party, and what effects of such party he or she hath in his or her hands, or had at the time of serving such attachment; which, being returned executed, the court may thereupon compel such garnishee to appear and answer as aforesaid. See post. No. 13. Oct. 1665, Act 1, 2 Stat. Larg. 214; Oct. 1710, c. 11, 10, 3 Stat. Larg. 50; Nov. 1738, c. 13, 5 Stat. Larg. 59; Oct. 1748, c. 7, § 6, 5 Stat. Larg. 492; 1792, c. 78, R. C. See Sept. 1532, Act 55, 1 Stat. Larg. 200; Mar. 1642-3, Act 2, 1 Stat. Larg. 243; Mar. 16578, Act 12, Ib. 436; Oct. 1705, Act 12, 1, 4, 3 Stat. Larg. 270; Oct. 1748, c. 22, 6 Stat. Larg. 44. 2. 17. Any process of attachment against absconding debtors, may hereafter be executed and returned by a constable, in the same manner, as, by law, (a) Any justice of the peace of the county or corporation, from which, the debtor absconded. Barnet v. Darnielle, 3 Call, 413. Query: Can an attachment legally issue from a county, through which a debtor may be moving, or, in which he may be absconding, having left his late residence in another county. See 3 Call, 415-416. (1) M'Kenzie v. Buchan, 1 N. & M'C. 205. (2) Walton et al. v. Deignant, 2 N. & M'C. 248.. This process is in this regard analagous to an execution. The officer is authorized and required to take the property of the debtor, wherever the same may be found, though in the possession of a third person. 2 Nott & M'Cord, 248; Hutchinson v. Ross, 3 Marsh. 491; and see Platt v. Brown, 16 Pick. 553. See Jackson v. The Justices of Harrison, 1 Virg. Cas. 314. Act of February 11, 1819-January 1, 1820. R. C. ch. 123. Jan. 21-May 1, 1803, sheriffs are directed to execute and return the same. 3. 19. Upon proof being made before a magistrate, that a debtor is actually removing or absconding, as aforesaid, on Sunday, it shall be lawful to issue and serve an attachment against such debtor, as is directed by this act on any other day. 1792, c. 78, R. C. 4. 7. Every justice of the peace, before(3) granting such attachment, [§ 6,] shall take bond and security of the party,(b) for whom the same shall be issued, in double the sum to be attached, payable to the defendant, for satisfying and paying all costs, which shall be awarded to the said defendant, in case the plaintiff, suing out the attachment therein mentioned, shall be cast in his suit, and also all damages which shall be recovered against the said plaintiff for his suing out such attachment; which bond shall be, by the said justice, returned to the court, to which the attachment is returnable; and the (3) Where an attachment bond bears equal date with the attachment, it will be presumed to have been taken before the granting of the attachment, unless the contrary appear. M'Kenzie v. Buchan, 1 N. & M'C. 205. (b) The complaint on which an attachment issued, ought to be made, and the bond and security for its due prosecution, ought to be given by the creditor himself, or his attorney in fact. See Mantz v. Hendley, 2 H. & M. 308, where this point was made, though not adjudicated. Fleming, J. however, expressed himself to the above effect; see p. 316. In all cases where the party, (creditor,) is required by this act, to make affidavit, or enter into bond, &c. if such party be a firm, 'tis sufficient if one of the members thereof, make the affidavit, and give the bond, for and on behalf of the firm. Wilson & Co. v. Turpin, Sup. Ct. Law, Henrico, 1821; in support of which, see Twiss v. Massey, 1 Atk. 67; Pleasants v. Meng et al. 1 Dall. 381; Ex parte Hodgkinson, Cooper's Ch. Cas. 99; Ex parte Roberts, Ibid. 102. One member of a mercantile firm to which a debt has been contracted is competent to sue out an attachment for the firm, against the debtor-and that member is the proper person to execute the attachment bond required by this section. And the bond of the partner suing out the attachment, with surety, conditioned that that partner shall pay all costs, in case the said C. (one of the partners of the firm) shall be cast in the suit, and all damages that shall be adjudged against (him the said C.) and for suing out the attachment, is a good bond. W. & D. Kyle & Co. v. Connelly, 3 Leigh, 719. This is the condition of the bond: "The condition of the above obligation is such, that whereas the above bound H. C. one of the firm of W. & D. K. & Co. hath this day obtained from A. T. T. & J. B., J. of the P. for the county of A. an attachment against the estate of the above named D. Connelly, for the sum of 1103 dollars, returnable to the next county court; if, therefore, the said H. Campbell, one of the partners of W. & D. K. & Co. shall satisfy all costs which shall be awarded to the said C. D. in case the said H. Campbell, one of the partners of W. & D. K. & Co. shall be cast in the said suit, and also all damages which shall be recovered against the said H. Campbell, one of the partners of W. & D. K. & Co. for his suing out this attachment, then" &c. But it must appear on the face of the proceedings, (and cannot be made to appear on averment and extrinsic evidence,) that the individual partner acted for and in behalf of the firm that the firm, and not the individual partner, was the creditor, and that on his failure to prove the claim of the firm, his liability to the debtor would accrue: Where, therefore, the attachment was for a demand due to a firm, but the bond of the partner contained no reference to the firm, but was precisely such a bond as ought to have been executed by the individual partner, if the attachment had been for his individual debt. The attachment was held illegal and void. Jones & Ford v. Anderson et al. 7 Leigh, 308. In this case Kyle & Connelly was reviewed, recognized, and distinguished from Jones & Ford v. Ander son. See Gram v. Seaton & Buckner, 1 Hall's R. (N. Y.) 262, 299-for an elaborate discussion, by Jones, C. J. of the power of one member of a firm to bind the firm by an instrument under seal, executed in the name of the firm. An attachment irregularly issued, ought to be quashed by the court ex officio, without bail or plea;—or, on errors in arrest of judg. ment, after pleadings and verdict for plf. Mantz v. Hendley, 2 H. & M. 308. In Mantz v. Hendley, it was decided, that an attachment irregularly issued, ought to be quashed by the court ex officio, and if so, any person as amicus curiæ might move to quash it. A fortiori might A. & M'C. do so, who were permitted to interplead, and who may have been deeply interested in |