
    Wm. Kincaid vs. Wiley Neall.
    Where a magistrate issued an attachment, and a few days afterwards the defendant came in and confessed judgment, the court held that the lien of the attachment could not be postponed to subsequent judgments, because no bond was to be found in the clerks office, as it will be presumed the magistrate did his duty and that the bond was lost, unless the contrary be shewn by more positive evidence.
    The act which authorizes constables to serve attachments, does not say, they shall not levy an attachment which issued for more than £20, but that they shall not take more than £20 of property into their possession by virtue of any attachment. The limitation having reference to the pro* perty and not to the attachment.
    St is not necessary when one sues for a debt, that he should demand the interest,
    A third person, though a judgment creditor, can not set aside the lien of an attachment on account of irregularities in issuing and suing the attachment, the ss-me having been waived by the, defendant in attachment, 
    
    Tried before the Hon. Judge Colcock.
    William Kincaid brought this action by summary pro-■tysss, to recover from the defendant >J40, being the amount of property belonging to Wm. Gloss, which the defendant had; sold under execution. The facts were these. Wm. Gloss was indebted to several persons in the neighbourhood in which he lived, among whom was the present plaintiff. On the 29th May 1822, the plaintiff went before a magistrate and took out an attachment for his debt, which, on the same day, he had levied by a constable on the property belonging to William Gloss. The plaintiff’s debt, as set forth in the attachment, consisted of a book account for $51,43 cents, also a note for $33,68 cents, with interest from the 1st January 1822, making the amount due on the day on which the attachment issued including the interest cn the note, $86,20.
    The clerks office was examined and no bond could be found, which the magistrate should have taken and returned, as is required by law. On the 30th May 1822, the constable who had levied the attachment also levied several executions on the same property, at the instance of other creditors, by virtue of which executions the property was afterwards sold.
    Wm. Gloss, three days after the issuing of the attachment, came forward and confessed a judgment to the plaintiff for the debt, for which the attachment issued, which judgment was signed and execution taken out on the 14th June 1322. The plaintiff after the property had been sold under the above executions, required the constable to pay over the proceeds ihe sale in satisfaction ofhis debt; contending tliatthe plaintiff’s attachment atad levy under it, were void, and that the money belonged to the executions. The constable having ^refused to pay the plaintiff the money, he brought this suit. On the trial it was contended for the defendant that the attachment* under which the plaintiff claimed a lien on the property was void, because the plaintiff had not given to the magistrate an attachment bond, and because no such bond was returned to the court; both of which are required by the act of the legislature. The court was of opinion that the attachment was void; but that a third person had no right to take the objection.
    It was further contended, that admitting the attach-* aiciii to have been good,'the levy made by the constable was void, in as much as the debt for which the attachment issued exceeded twenty pounds.
    The court also overruled this objection and gave a decree for the plaintiff.
    The defendant appealed and moved the court to reverse the circuit decision, and for a decree on the grounds above stated.
    
      
      
        .) See Foster vs. Jones, 1 M‘Cord, 118.
    
   Colcock, J.

As to the first ground of objection to the decree in this case: It was not proved that there was no bend taken, as the brief states, but it was inferred from the circumstance that the bond could not be found. Now the court would presume that a bond was taken and has been lost or mislaid. It is always fair to presume that an officer has done. his duty, until the- contrary appears. The bond maj' have been taken, but not returned. The absconding debtor came in three days after and confessed judgement, and the magistrate may have thought that, it was therefore unnecessary to return the bond.

The second ground of objection, at first view,.seems to he more important; but on examination, it cannot prevail; for the act which authorizes constables to take property on attachment, does not say they shall not levy an attachment which is issued for more than twenty pounds, but that they shall not take more than that amount of property into their possession by Virtue of any attachment. The"words of the get are: “ Whereas the seizing of property under attachment is at present confined to sheriffs alone, be it enacted that any constable, within each and every county, may take property under attachment, provided the same does not exceed twentypounds.” (1 Brev.Dig.41.) The limitation of amount has reference to the property, and not to the attachment. This is manifest from the intention of the legislature, as well as the phraseology of the clause. The legislature, while they gave to these subordinate officers the power of taking -property under attachment, meant to guard against their having in their possession too great an amount. Whefl a train-was about to abscond with forty or fifty dollars worth of property, it was conceived to be as proper that it should be seized on by a constable as by a sheriff. For, of the former there are many, and of the latter only one. The intention is also manifest from the phraseology. If the restriction had been intended to relate to the attachment, the language would have been, that constables should be permitted to levy all attachments which may be issued for sums under twenty pounds. If the restriction then applies to the amount of property, and not to the amount of the attachment, the constable did not exceed his authority, for the property taken was worth only forty dollars. But if the strict grammatical construction must prevail still the objection cannot be maintained, because the attachment may be well considered as issuing for a sum within twenty pounds. It is not necessary when one sues for a debt, that he should sue for the interest; it follows as a matter of course. The demands their of the plaintiff were on an account ‡ 51 53, and on a note ‡ 33 68, which makes 85 21 cents; which is £ 49 17 10. But if these objections were better supported, if the bond had not been taken, and the attachment had issued for a very few cents more than the twenty pounds, it is not permitted to á stranger to take these exceptions to the proceedings. These provisions of the law are intended for the benefit oí the debtors, and if they do not complain, no one else has a right to do so. Here the debtor came in a few days after the attachment issued, and confessed judgement and did not oppose the sale of the goods attached, which amounted t§ about $ 40.

OWeai and Johnston for the motion.

Baushett and Dunlap contra.

The motion is dismissed  