
    Bowne and Millard vs. Mellor.
    If a suit be commenced before a justice against a non-resident of the county by long attachment, and the plaintiff fail to appear on the return day thereof, the defendant may either treat the process as void, and recover his damages in an action of trespass, or waive the irregularity and take his remedy on the attachment bond.
    Error to the Delaware common pleas, where Mellor brought an action of debt on an attachment bond executed by Bowne and Millard. case was this : On the 27th of March, 1841, Bowne applied to a justice of the peace of the county of Delaware, for an attachment against Mellor, on the ground that he was about to depart from the county with intent to defraud his creditors. (2 R. S. 230, § 26.) An affidavit was made, and the bond in question executed by Bowne, with Millard as his surety, conditioned to pay Mellor all damages and costs which he might sustain by reason of issuing the attachment, if Bowne failed to recover judgment. (§ 29.) The justice issued the attachment, which was made returnable seven days afterwards, and the goods of Mellor were attached. Bowne did not appear on the return of the attachment, and nothing further was done in the suit; whereupon Mellor brought this action. The defendants proved that Mellor was a resident of the county of Dutchess, when the attachment issued; and as he was not therefore liable to be sued by a long attachment, they insisted that the bond was void. The court overruled the objection, to which the defendants excepted, and the jury found a verdict for the plaintiff. The same defence was also set up by a special plea, to which the plaintiff demurred, and the court below gave judgment in his favor. The defendants brought error.
    
      S. Gordon, for the plaintiffs in error.
    
      A J. Parker, for the defendant in error.
   By the Court, Bronson, J.

As Mellor was not a resident of the county of Delaware, there should have beeiia short, instead of a long attachment. He might have treated" the process as void, and recovered his damages in an action of trespass. But he elected, as I think he had a right to do, to waive the irregularity, and take his remedy on the bond. Having adopted that course, Bowne, who procured the attachment to be issued, was not at liberty to show the irregularity for the" purpose of defeating the action.

Judgment affirmed.  