
    Mantz v. Hendley.
    Saturday, April 16, 1808.
    Attachments — When Issued Priorato Act of Jan. 25, 1806. — An original attachment, prior to the act of Jan. 25, 1806, ought not to have been granted to a creditor, whose claim exceeded 20 dollars, or 1000 pounds of tobacco, on the ground that his debtor intend ed to remove his effects, or would elude the ordinary legal process, but only on the ground that he was actually removing out of the County or Corporation privately, or absconded or concealed himself so that the ordinary process of law could not be served upon him.
    Same-Bond — By Whom Given. — The complaint on which an attachment is issued, and the bond and security for its due prosecution, ought to be made and given by the creditor himself, and not by his attorney at law.
    Same — Irregularly Issued — Effect.—An attachment irregularly issued ought to be quashed ex ofilcio by the Court to which it is returned, though bail be not given, nor any plea filed by the defendant; and, in like manner, the Court ought to quash it, on errors in arrest of judgment, after pleadings and a verdict for the plaintiff.
    Same — Plea in Abatement — Conclusion.—A plea in abatement to an attachment ought not to conclude with praying judgment if the plain tiff ought to have and maintain his attachment and action, but only that the attachment be quashed.
    Plea in Abatement — Defective in Form — Demurrer.— A general demurrer to a plea in abatement ought to be sustained, though the plea be defective in point of form only.
    Same, — The plea, that the defendant never ob-sconded, is a plea in abatement.
    Appellate Practice — Reversal of Judgment. — A District Court ought not, in any case, merely to reverse the judgment of a County Court, in general terms; but should proceed to render such judgment as the County Court ought to have rendered.
    Asa Bacon, as attorney for Francis Mantz, on’ the 12th day of August, 1796, obtained an attachment from a *magistrate of Loudoun County against the property of John Hendley, having made oath, as recited in the attachment, that he held in his hands, for the purpose of collection, a bond against the said Hendley for sixty pounds, which had been assigned’ to the said Mantz by a certain Nathan Ellis, and that he had “grounds to suspect and verily believed, that the said Hendley intended to remove his effects, and would elude the ordinary legal process.” The attachment bond was executed by Bacon with a security. It recited, that he as attorney had prayed and obtained the attachment; and was conditioned that Bacon and his security should satisfy and pay to-Hendley all costs which should be awarded to him in case the Said Bacon should be cast in the said attachment, and all damages which should be recovered against the said Bacon for suing out the same.
    At the ensuing Loudoun Court, Hendley gave bail and obtained a release of the attached effects. At the rules in October, a declaration was filed in the name of Mantz as plaintiff; and Hendley took a special imparlance, “reserving all benefit of exception, as well to the attachment as to-the declaration:” after which the cause was continued at the rules until March,. 1797, when the words “never absconded, and demurrer joined,” are found in the-record.
    At June Court, 1798, Hendley obtained leave to amend his plea. He thereupon prayed oyer of the attachment, declaration and bond, and filed a plea, saying, “that the plaintiff ought not to have and maintain his action and attachment against him, because he was not removing out of the County aforesaid privately, nor absconded or concealed himself so that the ordinary process of law could not be served on him, as was alleged and complained of in said attachment;” concluding with “and this he is ready to verify; wherefore he prays judgment if the said plaintiff ought to have and maintain his attachment and action aforesaid against the defendant for his debt and *damage& aforesaid,” &c. To the end of this plea, the words “and payment” are added in the record. The plaintiff, by his counsel, objected to this plea, that in this stage of the suit, oyer could not be craved of the attachment; and if it could, it ought not to be connected with or made a part of the said plea. The Court overruled the objection ; to which opinion a bill of exceptions was signed and sealed. The plaintiff then filed a general demurrer to the first plea, and replied generally to the plea of pay-■merit, and issues were joined. On argument, the Court sustained the demurrer; and a Jury being impanelled to try the issue on the plea of payment, found a verdict for the plaintiff. The defendant, by his •counsel, filed errors in arrest of judgment; 1st. That the attachment was erroneous, because it was issued on the complaint of the attorney, and not on the complaint of the plaintiff; 2dly. That the condition of the attachment-bond was not such as the law requires; and, lastly, That the attachment and the attachment-bond, and all the proceedings, were erroneous, illegal and insufficient. At a subsequent term, the Court overruled these objections, and entered judgment for the plaintiff. The defendant appealed to the District Court of Dumfries, where the judgment was reversed, in general terms, without proceeding to enter any other judgment in the room of that of the •County Court; and thereupon Mantz appealed to this Court.
    Williams, for the appellant,
    observed, that, after the defendant had pleaded and given bail, no exception could be taken to the attachment or attachment-bond. If he thought the attachment issued irregularly, he might have moved the Court to quash it; but, having pleaded, he waived such objections. The law is the same, where a writ issues, which is improper upon the face of :it, and the defendant pleads to the action; for, after that, it is too late to crave oyer of the writ. At any rate, the attachment-bond was *not part of the record ; for oyer of that bond was not prayed.
    If the County Court proceedings were erroneous, the District Court was wrong also; because it merely reversed the judgment of the County Court, but entered no judgment at all; whereas such judgment should have been pronounced by the District Court as the County Court ought to have rendered.
    Botts, for the appellee,
    insisted on the following points: 1st. That the complaint ■on which the attachment was founded was not conformable to the 6th section of the act on that subject; being not that Hendley had absconded, but that he intended to remove his effects, and would elude the ordinary legal process; 2d. That the bond was illegally given by the plaintiff’s attorney, instead of the plaintiff himself ; 3d. That it was not too late to crave •oyer after a special imparlance reserving all exceptions, and after an immaterial issue had been joined, and leave granted to amend the plea; and 4th. That the attachment and attachment-bond, being the ground work of the proceedings, (all 'of ■which are summary,) would form a part of the record without oyer. The intention of the act of Assembly was to introduce a new mode of proceeding, different from that in use under the common law. No declaration ■or pleadings would have been requisite, if bail had not been given: of course, they were not necessary after bail was given. The declaration, therefore, ought not to have been admitted; but all the proceedings ought to have been founded on the attachment itself.
    Williams, in reply.
    The attachment law is a remedial law, and ought to be construed liberally. According to its fair construction, a declaration, in such case, is proper. If pleadings were not necessary, why should bail be given to answer the ultimate judgment of the Court? If the proceedings were intended to be merely summary, judgment *would be entered immediately without bail, and by the Court, without a Jury. But, where the attachment is replevied, it ought to go on as an ordinary suit.
    
      
       See Rev. Code, 2 vol. c. 70, p. 98, where the law is altered.
    
    
      
       Rev. Code, p. 116.
    
   Tuesday, April 26. The Judges delivered their opinions.

JUDGE TUCKEK.

Asa Bacon (as attorney for Mantz) obtained an attachment against the effects of Hendley. The warrant recites, that Bacon had made oath, “that he had grounds to suspect, and verily did believe, that Hendley intended to remove his effects,” and “that he will elude the ordinary legal process,” &c. Hendley gave bail, at the return of the attachment. The cause was proceeded in at the rules, when the defendant pleaded that he was not removing, &c. to which there was a demurrer, and judgment for plaintiff thereupon. He also pleaded payment, which was found against him.

Upon the first consideration which I had of this cause, I was prepared to shew that the County Court decided right upon the demurrer to the defendant’s plea, in the form in which it was pleaded, which seemed to me to be materially defective. And of that opinion I am still; but think it unnecessary to detain the Court with my; reasons, because, upon a more minute examination of this warrant of attachment, it is so materially defective, that the Court ought, ex officio, to have quashed it, upon inspection, without waiting for a plea in abatement. The general rule is, that where a writ is only abateable, it must be abated by pleading in time; for matters in and before the writ cannot be taken advantage of in error, But where it appears to the Court, from the writ itself, that it ought to abate, there the Court ought, ex officio, to give judgment against the plaintiff, though the defendant does not plead in abatement: otherwise, where it does not appear in the writ, The attachment law authorises that mode of proceeding, only where a person makes complaint to a magistrate, that his *debtor is removing out of the County or Corporation, privately, or absconds or conceals himself, so that the ordinary process of law cannot be served upon him. Here the oath is, that the party hath grounds to suspect that Hendley 1 ‘intends to remove, and that he will elude the ordinary legal process.” This was not a sufficient reason for granting the attachment. It ought to have been shewn that he actually was removing privately, or actually did abscond, or actually did conceal himself; either of which facts might have furnished a sufficient reason for the attachment. But, as it appears upon the face of the warrant, that neither of them were alleged as a ground of the attachment, the County Court erred in not quashing it; and consequently the judgment of the District tevers-ing that of the County Court, ought to be affirmed. There is error in not having entered such judgment as the County Court ought to have rendered: but, the judgment being substantially in favour of the appel-lee, he is entitled to costs, according to Pendleton v. Vandevier, 1 Wash. 381, and Preston v. Harvey, last term.

JUDGE ROANE.

There are two kinds of causes for which a writ (and, a fortiori, an attachment) may be abated; the one dehors the writ or attachment, and the other intrinsic.

The matter stated in the plea demurred to in the present case, is of the former kind. It is a ground of opposition, which, if proved or admitted, would go to abate any attachment whatever: whereas a matter intrinsic relates to the particular writ or attachment which is in question. The plea in question in this case is substantially a plea in abatement, though, in point of form, it approaches very nearly to a plea in bar. A plea in abatement is one “which shews cause to the Court whj’- the defendant should not be impleaded, or, if impleaded, not in the manner and form he now is.” This definition determines the present to be substantially a plea in abatement; for the defendant, *for the reason he alleges, namely, “that he was not removing,” &c. demands judgment whether the plaintiff ought to maintain “his attachment and action against him.” It does not object to the action of the plaintiff generally, but to this particular action by attachment. In point of form, however, the plea is defective, in not having a proper conclusion. It ought to have demanded, that the attachment be quashed. This defect would clearly be fatal, on a special demurrer; but, taken as a plea in abatement, the same effect is supposed to result from a general demurrer. I infer this from a passage in 1 Crompton, 174, where it is said that the statutes of 27 Eliz. and 4 and 5 Anne, (substantially agreeing with our act on this subject respecting demurrers, so. far as they require judgments to be given “according as the right shall appear, extend only to such demurrers as go to the action, and not to demurrers to pleas in abatement.” The author cites no adjudged cases in support of this positioh ; but the doctrine seems congenial with that strictness with which dilatory pleas are generally considered. This plea in abatement, therefore, though substantially sufficient, yet not being so in point of form, the judgment of the Court, so far as it goes to sustain the demurrer and overrule the plea, was correct.

The regular course in such case would have been to award a respondeas ouster; but, where there is a matter of abatement intrinsic in the writ, it is said, that the Court will themselves take notice of it. This position seems justified by many decisions in this Court, in which it has been held, that if the declaration be radically defective in point of law, the Court ought not to give judgment upon it, notwithstanding the objection has not been taken 7 and I will ask, cui bono, shall the Court order further proceedings in a case, in which it sees manifestly that final judgment for the plaintiff can never be given? This doctrine will, no doubt, at least equally apply in the case of the summary proceeding by attachment.

*My opinion, therefore, is that the County Court ought, on account of the eminent and intrinsic defects existing in this attachment and verdict, (some of which have been mentioned,) to have abated the attachment after the judgment upon the demurrer, at least, if not at an earlier period; and that the judgment of' the District Court not having done this, but on the contrary having merely reversed a general judgment for the plaintiff, ought also to be reversed and corrected in this, particular.

JUDGE FEEMING.

In giving my opinion in this case, I must take the liberty of premising, that the law, commonly called the attachment law, which was formerly contained in the act establishing County Courts, and now, with small variation,, makes a part of the act of 1792, entitled, “An act directing the method of proceeding in Courts of Equity, against absent debtors, or other absent defendants, and for settling the proceedings against absconding debtors,” though sound in principle, and salutary in its operation, when duly and properly administered, has been, within the course of my experience and observation, oftener perverted, and more abused, than any law in our whole statutory code; and, instead of promoting justice, is often made the engine of injustice and oppression.

The mode of proceeding against a certain class of debtors, by original attachment, 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.

In the 6th section of the act last above mentioned, it is enacted, that if any person shall make complaint to a justice of the peace, that his debtor is removing out of the County, or privately conceals himself, so that the ordinary process of law cannot be served upon 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, &c.

*The attachment before us recites, that Asa Bacon maketh oath, that he having a bond of Hendley, assigned to. Mantz, in his hands to collect, has grounds, to’ suspect, and verily believes, that the said Hendley intends to remove his effects,, and will elude the ordinary legal process, &c.

The variance between the words of the’ law, and the ground on which the attachment is stated to have been awarded, goes to the substance as well as to the form of the complaints; and therefore, it was the duty of the Court ex officio, to have quashed the attachment.

In the case of Hughson v. Webb, Cro. Eliz. 121, debt was brought against the defendant as administratrix, upon a [simple] contract of the intestate; the defendant pleads fully administered, which was found against her. It was moved in arrest of judgment, that debt upon a [simple] contract lieth not against an administrator. And it was resolved by all the justices, that the plaintiff shall not have judgment: for although the defendant, by her plea, admitted that the action lay against her, yet, when the matter at the beginning is not sufficient to charge her, the Court, ex officio, ought to abate the writ, without exception of the party, and the defendant’s plea taketh not away the authority of the Court, but they may abate the writ at any time.

If this be the law, then, in commcn cases, how much more forcibly is the reason in this summary proceeding, where the greatest strictness is required, and ought to be observed.

In my apprehension, indeed, let the situation and circumstances of the debtor, Hendley, have been what they might, Bacon could not have legally obtained an attachment on behalf of Mantz without a special, or general power of attorney, comprehending the case; and he appears To have been a mere collector, without any particular powers, either general or special.

The attachment bond, executed by Bacon and Binns, is by no means such a one as the law requires; which is, that the justice, before granting such attachment, shall take bond and security of the party for whom the same shall be issued, in double the sum to be attached, payable to the defendant, for satisfying all costs which shall be awarded to the defendant, in case the plaintiff suing out the attachment shall be cast in his suit, and also all damages, &c. 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.

The condition of the bond, in this case, is not agreeable to the requisition of the law. It is executed by Bacon, when the attachment issued for Mantz, at the instance of Bacon, (who styles himself his agent, it is true,) but that does not alter the case. The condition farther states, that he, Bacon, shall satisfy and pay all costs which shall be awarded to the said John, in case the said Bacon shall be cast in said attachment, &c. when he is no party to the suit, as appears through the whole record; there being only two parties, to wit, Mantz, plaintiff, and Hendley, defendant.

On these grounds, I am of opinion, without critically examining the pleadings, that the attachment, being improvidently awarded, contrary to law, (which no after proceedings could sanction,) ought to be quashed ; but without prejudice to the right of Mantz, to recover his debt by any legal means he may think proper to pursue.

The opinion of the Court was, “that the warrant of attachment, which was granted in this case, is so defective upon the face thereof, that the County Court to which it was returned ought to have quashed the same upon inspection, without permitting any farther proceedings to be had thereupon ; and therefore that there is no error in the ^judgment of the said District Court, reversing the judgment of the said County Court, with costs: Therefore, it is considered, that the same be so far affirmed, and that the appellee, being the party substantially prevailing, recover against the appellant his costs, &c. But this Court is farther of opinion, that the said District Court erred in not entering such judgment upon that reversal as the said County Court ought to have rendered. And this Court proceeding to render such judgment as the said District Court ought to have rendered, it is farther considered, that the said warrant of attachment be quashed, and all the proceedings in the said County Court subsequent thereto set aside, and that the appellee go thereof without day.” 
      
       1 Salk. 2, Show. 169, 1 Roll. Abr. 783, cited in Bac. Abr. tit. Abatement, H.
     
      
       4 Bac. Abr. Pleas and Pleadings, P. 8.
     
      
       1 Bac. Abr.
     
      
       See Rev. Code, vol. 1, c. 76, sect. 37, p. 113.
     
      
       1 Bac. Abr. Gwil. edit. 39.
     
      
       See 9 Co. Rep. p. 86 — 90, Pin chon’s case, where it was decided that although debt on a simple contract would not lie against an executor because the testator might have waged his law. yet assump-sit would lie. — Note in Original .¡tuition.
     