Act of February 11, 1819-January 1, 1820. R. C. ch. 123.

party entitled to such costs or damages, may thereupon bring suit and recover;(5) and every attachment, issued without such bond taken, or where no bond shall be returned, is hereby declared illegal and void, and shall be dismissed. 1748, c. 7, 5 Stat. Larg. 492; 1792.

5. § 8. All attachments shall be repleviable by appearance(c) and putting in good(6) bail, if by the court ruled so to do, or by giving bond with good security to the sheriff or other officer serving the same; which bond, the sheriff or other officer is hereby empowered and required to take, to appear at the court to which such attachment shall be returnable, and to abide by and perform the order and judgment of such court. Oct. 1748, c. 59, 6 Stat. Larg. 202; Ibid.

6. 9. Upon the defendant or defendants replevying any attached effects, by giving bond and security to the sheriff or other officer as aforesaid, the sheriff shall return the name of the security by him so taken; and if such security shall be adjudged insufficient by the court, and if the defendant shall fail to appear and give special bail, if thereunto ruled by the court, such sheriff and security shall be subject to the same judgment and recovery, and have the same liberty of defence and relief, as if such security had been taken upon the execution of mesne process. Ibid.

7. § 10. It shall be lawful for any creditor, where his debt doth not exceed twenty dollars, or one thousand pounds of tobacco, to go before any justice of the peace of the county or corporation where his debtor resides, and make oath how much is justly due to him, and that he hath grounds to suspect,(4) and verily believes, that such debtor intends to remove his EFFECTS; and, thereupon, such justice shall issue an attachment(4) against the estate of such

the question of the validity of the attachment." Pr. Tucker, P. in Jones & Ford v. Anderson et al. 7 Leigh, 308, 313.

The garnishee in an attachment has no right to question the regularity of the proceedings against the absent debtor. Foster v. Jones, 1 MCord, 116.

If the claim of the creditor be stated in the attachment to be a certain sum, due by nego. note, with interest from a certain day, (the day on which the note was due,) and the bond describe the claim, as a certain sum, (without mentioning interest,) the variance, not sufficient to quash the attachment. Smith v. Pearce, 6 Munf. 585; 1 Gil. R. 34, S. C. If the attachment demands only £48. 15s. 5d. and costs, judgment cannot be given for interest. George v. Blue, 3 Call, 455.

An attachment is in the nature of process, and need not make profert of the note on which it is founded; if it is so special as to bar another action for the same cause, it is good. Monroe v. Castleman, 3 Marsh. 400.

(5) In action on an attachment bond, it is not sufficient to allege in the declaration, that the defendant "did not pay all such costs and damages as have accrued &c."but it must be expressly averred, that costs and damages had been actually sustained. But 'tis not necessary to justify an action on the bond, that the costs and damages, which accrued &c. should be previously assessed in some other action. Dickinson adm'r et al. v. M'Craw, 4 Rand. 158.

(c) The defendant may appear by attorney, give bail and plead, any time during the term to which the attachment is returnable. Smith v. Pearce, 6 Munf. 585; 1 Gil. R. 34 S. C. ; Havis v. Trapp, 2 N. & M'C. 130.

On defendant appearing and giving special bail in court-the cause is remanded to rules-the plaintiff files his declaration and the case proceeds, as though commenced in the ordinary way, by ca. ad resp. 1 Rob. Prac.627. Harper v. Bell, 2 Bibb, 221.

(6) Act 1748 "special bail."

(4) See Green, J. in Redford v. Winston, 3 Rand. 155, and Grisham v. Deale, 2 N. & M'C. 130. The attachments in either of these cases, cannot be controverted by plea or motion, that they were obtained by false suggestion in the one case-or no grounds of suspicion &c. in the other. See the opinion and case cited. "These laws (authorizing attachments against absconding debtors) are in effect, nothing but a new process allowed for commencing a suit, when the ordinary process cannot be served-the debtor is authorized to replery the property, upon appearing and giving bond and security to perform the judgment of the court, and to plead to the action as in any other suit. He cannot plead that the attachment is founded on false suggestion. If that is the fact, he must resort to his action on the bond required from plaintiff before the attachment issued." Pr. Green, J. 155-6, and Field v.. M'Vickar, 9 Johns. 130.

Act of February 11, 1819-January 1, 1820. R. C. ch. 123.

debtor, returnable to his next county or corporation court, directed to all sheriffs, serjeants and constables within the commonwealth; and, by virtue thereof, it shall be lawful, as well for the sheriff, serjeant, or any constable of the county or corporation, wherein such attachment shall be obtained, as for the sheriff, serjeant or any constable of other counties or corporations, to pursue and seize such effects, and to make return of such attachment, to the court where the same shall be returnable; and, thereupon, such proceedings shall be had, as in. other cases of attachments. Aug. 1736, 4 Stat. Larg. 486; 1792, c. 78, R. C.

8. 11. Upon complaint made to a justice of the peace, that any person indebted to the complainant, in any less sum than ten dollars, or four hundred pounds of tobacco, is removing out of the county or corporation privately, or so absconds or conceals himself, that a warrant cannot be served upon him, such justice shall, taking bond and security, as in this act is before directed, [ante, No. 4,] grant an attachment against the estate of such debtor, or so much thereof, as shall be of value sufficient to satisfy the debt and costs of the party praying such attachment, directed to the sheriff, or any constable of his county, or serjeant, or any constable of his corporation, and returnable before himself, or any other justice thereof, who shall and may proceed thereupon, as upon an attachment returnable to the county or corporation court. Ibid. Oct. 1784, § 11, 5 Stat. Larg. 494, and Dec. 23, 1806; June 1, 1807, c. 88, ed. 1808; Feb. 1727, c. 3, § 22, 4 Stat. Larg. 194; Aug. 1736, c. 6, 4 Stat. Larg. 486.

9. 12. In all cases of attachments, (d) the defendant shall be admitted to make defence, (2) and any other person claiming the property attached, may interplead, (3) without giving bail: Provided, That the property attached shall not thereby be replevied. Jan. 25, 1806, c. 70, § 4, ed. 1808.

10. 16. Whenever, the goods and chattels, taken by virtue of any attachment, shall be claimed by any person, other than such debtor, the court shall immediately, (unless good cause be shewn by either party for a continuance,) direct a jury to be impannelled to enquire into the right of property; and, in all cases, where the jury find for a claimant, such claimant shall be entitled to his costs; and where the jury find for the plaintiff in the attachment, such plaintiff shall recover his costs against such claimant. Ibid.

11. 13. If any such attachment as aforesaid, returnable to the county or corporation court, or before a justice of the peace, shall be returned executed, and the goods or effects attached shall not be replevied, or defence shall not be made without bail as this act directs, the plaintiff shall be entitled to a judgment for his whole debt, (e) and may take execution thereupon; and all goods and effects attached and not replevied as aforesaid,(1) shall be sold and disposed of, for and towards satisfaction of the plaintiff's judgment, in the same manner as goods taken in execution upon a writ of fieri facias. Feb. 1727, c. 3, §

(d) Notwithstanding the generality of these terms, they do not extend to attachments for rent, but for debt only. Hallam v. Jones, 1 Gil. R. 142.

(2) As to the nature of the defence, see note (4) on the preceding page.

(3) This proceeding is not analagous to the common law or equity interpleading, but to the process of intervention in the civil law. See Eden on Injunctions, note (c) p. 242, Am. ed.

(e) But, the plaintiff must first prove his debt to the satisfaction of the court, by legal testimony; and the nature of the debt must

be accurately set out in the judgment, so as to be a bar in future. The defendant's failing to appear, does not affect the duty of the plf as respects the mode of establishing his debt or claim. George v. Blue, 3 Call, 455.

(1) The execution of the attachment by levy and return thereon, fixes the character of the property in the officer's hands. He cannot part with it, on the ground that 'tis not the property of the absconding debtorby so doing he subjects himself to an action on his official bond. See Smith (L. Gov.) v. Cooper, 6 Munf. 401.

Act of February 11, 1819-January 1, 1820. R. C. ch. 123.

23, 4 S. L. 194. And, where any attachment shall be returned served in the hands of any garnishee, it shall be lawful, upon his or her appearance and examination, in the manner by this act before directed, [ante, No. 1, post. No. 13,] to enter up judgment and award execution, against every such garnishee and garnishees, (f) for all sums of money due from him, her or them, to the person absconding, or in his, her or their custody or possession, for the use of such person, or so much thereof as shall be of the value sufficient to satisfy the debt and costs of the complainant; and all goods and effects whatsoever, in the hands of any garnishee or garnishees, belonging to such absconding person, shall be liable to satisfy such judgment. 1748; 1792.

12. § 14. Whenever any creditor, (a) whose claim amounts to ten dollars or four hundred pounds of tobacco, shall have sufficient grounds to suspect that his debtor will remove with his effects out of this commonwealth, before his debt will be payable, or whenever such debtor shall have so removed, leaving effects, it shall be lawful for such creditor, to go before any magistrate of the county or corporation where his debtor resides, or, in case such debtor has removed, where he last resided, or where his effects may be found, and make oath(b) to the true amount of his debt, and the time when it will be payable, and that he hath just cause to suspect, and verily believes, that such debtor will remove himself, with his effects, out of the commonwealth, before the said debt will become payable, or hath actually so removed; and also, that he had no knowledge, when the said debt was contracted, of the intention of such debtor so to remove; and, thereupon such magistrate taking bond and security (1) from such creditor, as in other cases of attachments, shall issue an attachment against the goods and chattels of the debtor, returnable to the next court to be holden for such county or corporation, which attachment may be served

(f) In an attachment against an absconding debtor, the first judgment must always be against the debtor; and if the attachment be returned executed only on his effects, no further judgment is necessary; but, if executed on his monies, &c. in the hands of a garnishee, an additional judgment is necessary, to condemn such monies, &c. in his hands, which judgment and execution thereon, justifies him in parting with the property. George v. Blue, 3 Call, 455. And he should not part with it before compelled by said execution. See Wetter v. Rucker, C. P. H. T. 1820 1 Broad. & Bing, 490. Suppose the garnishee dies, before the amount paid over to plaintiff of what dignity is the plaintiff's claim in the administration of garnishee's assets? See Holt v. Murray, 1 Simons, 485. As to his lien, &c. see 5 Taunt. 558.

It seems, that on an attachment for a debt claimed as due from one co-partner, the officer must seize all the partnership effects, and sell a moiety thereof undivided, in which his vendee will be tenant in common with the other partner, (see Shaver v. White et al. 6 Munf. 113,) and subject to the same accounts, &c. to which the absconding debtor was subject. See Matter of Smith, 16 Johns. R. 102, and note (c) 106, in which the principal cases are reviewed; and the remarks of Ld. Ch. Eldon, in the matter of Wait, 1 Jacob & Walker, 588-589.

As to the effect of the death of the absconding debtor, on the attached effects,

prior, or subsequent, to judgment against said debtor, see Kennedy v. Raguet, I Bay, 484; Fitch et al. v. Ross et al. 4 Serg. & Rawl. 557.

(a) One member of a firm to which a debt has been contracted-yet growing due, is competent to make complaint on oath, and sue out an attachment against the debtor, under the provisions of this section. W. & D. Kyle & Co. v. Connelly, 3 Leigh, 719, and see ante, note (b) of this title.

(b) Though the act requires that the complaint shall be made on oath as the foundation of the process of attachment, it does not require that the fact of the complaint having been verified by oath shall be certified by the justice, and made part of the record; if, on the trial, objection be made that the attachment was issued without complaint verified by oath, the fact that the oath was administered, may be proved; if no objection be then made on that ground, 'tis too late to object thereto in an appellate court. W. & D. Kyle & Co. v. Connelly, 3 Leigh, 719; M'Kenzie v. Buchan, 1 Nott & M'Cord, 205. The usual mode has been to set it out in the body of the attachment. And, it seems that it should be so set out. See Hagood v. Hunter, 1 M'Cord, 511, and the remarks of judge Tucker, in Jones &c. v. Anderson, 7 Leigh, 313.

(1) See Ashby's adm'x v. Smith's ex'x, 9 Leigh, 164.

Act of February 11, 1819-January 1, 1820. R. C. ch. 123.

on any goods and chattels of such debtor, or any garnishee or garnishees. If such debtor shall not, on or before the return of such attachment, enter into bond, with sufficient security, for the payment of the said debt, when it shall become due, the court on due proof of the justice thereof, and of the intention of the debtor to remove, or of his having actually removed out of this commonwealth, shall grant judgment, as in other cases of attachments: But execution shall be staid against any garnishee, who shall state, that he is indebted, or will at a future day be indebted to the defendant, until the claim of the plaintiff, or such garnishee's debt to the defendant shall become due; and the goods condemned shall be sold upon a credit, until the time the plaintiff's claim shall be payable. The sheriff, or other officer selling such goods, shall take a bond or bonds with good security from the purchaser or purchasers, and assign the same to the plaintiff, to the amount of his debt, interest and costs; and, where the property sold shall amount to more than the debt, interest and costs, shall take a bond, with good security, for the surplus, and assign the same to the defendant: Provided, always, That not more of the goods attached shall be sold, than shall be necessary to satisfy the debt, interest and costs, except in cases where the property sold cannot be divided; and, in such cases, the sheriff or other officer shall be entitled to commissions only on the amount of the plaintiff's demand; which commissions shall be included in the bond or bonds assigned to such plaintiff, who shall be liable therefor, as for commissions included in a forthcoming bond taken by virtue of an execution :(c) Provided, also, That all such attachments shall be repleviable in the same manner as other attachments are by law repleviable. Where any such debt shall be less than ten dollars, or four hundred pounds of tobacco, an attachment may be obtained as aforesaid, returnable before any magistrate of the county or corporation, who shall and may grant judgment thereon, and direct the goods condemned by him to be sold in manner aforesaid, or execution to be staid as aforesaid, against any garnishee or garnishees. Jan. 25, 1806, c. 70, ed. 1808; 2 Stat. Larg. ed. Shep. 253.

13. § 15. Whenever the plaintiff in any attachment shall allege, that any garnishee summoned in such attachment hath not discovered the true amount of debts due from him to the defendant, or what goods and chattels belonging to the defendant are in his possession, the court shall direct without the formality of pleading, a jury to be impannelled immediately, (unless good cause be shewn by either party for a continuance,) to enquire what is the true amount due from such garnishee to the defendant, and what goods and chattels are in his possession belonging to the defendant. If the finding of the jury shall be against such garnishee, the court shall grant judgment, in the same manner, as if the facts found by the jury, had been confessed by him on his examination; and, if the jury find in his favour, he shall recover his costs against the plaintiff. Ibid. § 2.

(c) How judgment shall be rendered for the plaintiffs on an attachment for a debt growing due, when the attachment has been laid on goods of the debtor, and on monies due to him in the hands of garnishees, where the value of the effects attached is uncertain, and may exceed the plaintiff's claim. W. & D. Kyle & Co. v. Connelly, 3 Leigh, 719.

That the sheriff should make sale of the merchandize attached on a credit, till the date when the debt to the plaintiffs should become payable, and should take bonds of the purchasers with good surety for the proceeds, and assign the same to the plain

tiffs to the amount of the debt due them and their costs, and if the proceeds should exceed that amount, should assign the bonds for the surplus to the defendant and return an account of his proceeding to the court: and it appearing that there were debts due the defendant from the garnishees, who appeared according to the summons to the amount of, the court ordered them to pay to the plaintiffs the several debts by them respectively due to the defendant, with a stay of execution against the garnishees till the date when the defendant's debt to plaintiff should become due and payable.

Act of February 11, 1819-January 1, 1820. R. C. ch. 123.

14. § 18. When any sheriff, or other officer, shall serve an attachment on slaves, horses, or other live stock, and the same shall not be immediately replevied or restored to the debtor, it shall and may be lawful for such officers, and they are hereby required, to provide sufficient sustenance for the support of such slaves, and live stock, until such slaves or stock shall be sold, or otherwise legally discharged from such attachment; and their compensation for the same shall be ascertained, regulated and paid in like manner, as in case of slaves and live stock taken in execution. Feb. 1772, c. 6, 8 Stat. Larg. 518; 1792, c. 78, R. C.; Jan. 19—May 1, 1807, c. 107, ed. 1808. See post. tit. EXECUTIONS, No. 26.

Act of March 6, 1838, c. 94.

15. § 1. Whenever an attachment against an absconding debtor, shall be levied upon live stock or other property liable to perish, or to become materially impaired in value, or which it may be expensive to keep, it shall be lawful for the court in which the case may be, if the same be not decided, or the property otherwise disposed of at the term to which the attachment may be returned, to order the sheriff, or other officer, to sell such live stock, or other property, at such time and place, on such terms, and after such public notice as the court may prescribe: And the sheriff or other officer, making such sale, and his sureties, shall be accountable for the proceeds thereof, and be liable for all the penalties, for the non-payment of the same, to the person to whom the court may subsequently order the amount thereof to be paid, in the same manner in all respects as for the proceeds of the sale of property ordered to be sold to satisfy judgments upon attachments. Acts 1838, c, 94, p. 73. See post. tit. CIVIL SUITS, (proceedings in,) No. 23.

This act of assembly, being an innovation on the common law, is to be construed strictly; the plaintiff must bring himself within its words, or the obvious intent of the legislature; per Fleming, J. 3 Call, 415416. The attachment is a violent remedy, given against men in distress, and who have, generally, no friends to bail them, or means to defend themselves. Hence no process is more subject to abuse, and, therefore, humanity, as well as policy, dictates, that the law should be strictly pursued in obtaining it; per Carrington, J. 3 Call, 416. This mode, being a summary procedure unknown to the common law, the strict letter of the statute ought, I conceive, to be adhered to in all cases whatever; per Fleming, J. 2 H. & M. 315; and, see 1 Wash. 74; 2 H. & M. 48.

This is the case of an attachment, which being a summary process, and liable to abuse, ought to be carefully watched by the courts, and kept within the bounds prescribed by the statute. I do not mean, that the party must be held to the very letter, and that the slightest departure from it is to be caught at, to set aside the proceeding; but that there should be, at least, strictness and certainty to what my lord Coke calls "a common intent in general." Per Carr, J. in Jones & Ford v. Anderson et al. 7 Leigh, 311. In

this summary proceeding, which is unknown to the common law, it is conceded that great strictness must be observed,-the very jurisdiction of the court depends on the regularity of the attachment. In ordinary cases, the capias issued according to the accustomed course of the court, gives to it jurisdiction over any cause. But when an extraordinary process, not issued by the officer of the court, but issued by a magistrate of the county, is made the foundation of the jurisdiction, it is the first duty of the court to see by what authority a justice of the peace has invested it with power over the cause. Hence, it is the duty of the court, in attachment cases, to examine into the regularity of the attachment;-hence too, all the papers connected with the issuing of the attachment are properly parts of the record; and hence, the court may ex officio dismiss an irregular attachment; for it must always be ex officio the duty of every court, to disclaim a jurisdiction which it is not entitled to exercise. To do otherwise, would be to usurp a power not confided by the laws. Per Tucker, P. Ibid. p. 313-14. And see Vosburgh v. Welch, 11 Johns. 175; Adkins v. Brewer & Harvie, 3 Cowen, 206, as to the duty of the justice of the peace, to shew a proper case to authorize him to act, and the consequence of his failing to do so.