
    Henry Weaver v. James Russell and Martin Gallegher.
    In a capias ad respondendum against a garnishee in attachment, the amount sworn to be due must be indorsed upon the writ.
    Tms is a writ of error to the Supreme Court for Champaign county.
    The original proceeding in the court below was by foreign attachment.
    Under the 5th section of the “ act allowing and regulating writs of attachment,” the plaintiff filed his affidavit, as follows:
    “ The State of Ohio* Champaign county, ss.
    “ Personally came before me, the undersigned, an acting justice of the peace in and for said county, Henry Weaver,, and made solemn oath, in due form of law, that James Russell is indebted to him in the sum of two hundred and seventy dollars, by note dated September 2d, 1846, with interest from ■date ; that said James Russell is not a citizen or resident of this state,' and that Martin Gallegher, now in this county, but not a citizen or resident of this state, has, as affiant has reason to, and does verily believe, money and property, to wit, about one hundred and fifty head of cattle in his hands and possession, of the money and property of J ames Russell; that he, has good reason to believe, and does verily believe, that said Martin Gallegher will abscond and leave this county and state before judgment and execution can be had against him, the said Martin Gallegher.
    (Signed,) “ H. Weaver.
    “ Sworn to and subscribed this 22d day of July, 1847.
    “ Nelson Rhodes, J. P.”
    Upon this affidavit, a capias ad respondendum issued from the court of common pleas of Champaign county, on the same 22d day of July, 1847; which was indorsed as follows:
    “ July 22d, 1847. I have taken the body of Martin Gallegher into custody, and have taken a bond for his appearance at next term of Champaign common pleas, with A. R. Colwell and William H. Colwell, his securities, and have filed a copy of the bond herewith.
    (Signed,) “John West, Sheriff.”
    At the November term, 1847, of said court, the attorneys of Gallegher filed their motion to quash the writ and proceed ings in this case, for irregularity in this, to wit:
    1st. For the want of an indorsement of the cause of action on the capias.
    2d. Because the sheriff did not return the names of the bail; and because the defendant was a non-resident, and for other irregularities; and also to discharge the defendant on common bail.
    At the same term, said motion was heard, and the court decided that said writ of capias was illegal for want of a cause of action indorsed thereon, and held such indorsement to be necessary, under the 3d section of the act to regulate the practice of courts, passed March 8,1831; to which decision the plaintiff excepted, etc.
    These proceedings were brought into the supreme court of Champaign county, by a writ of certiorari returnable to the July term of said court, A. D. 1848, where the plaintiff wa8 heard on his assignment of errors, to wit:
    
      “ 1. The court erred in deciding that an indorsement of the said writ was needed, and in quashing the writ for that cause.
    “ 2. The court erred in deciding the said motion for the defendant, when the decision should have been for the plaintiff.”
    And the judgment of the common pleas was affirmed, with costs.
    This writ was allowed for the purpose of reviewing the judgment of the supreme court.
    
      James McJSfemar, for plaintiff in error.
    
      Baldwin Mason, for defendants.
   Spalding, J.

The question for decision is, whether an indorsement of the cause of action and of the amount appearing to be due, is required to be made upon a writ of attachment.

It might be deemed “ sharp practice ” to take the body of a garnishee to answer a claim of two hundred and seventy dollars, when he has in possession, within the jurisdiction of the court, one hundred and fifty head of cattle belonging to the absent debtor, even though we had no statute law abolishing imprisonment for;¡debt.

But, waiving all considerations of this sort, how stands the act regulating the practice of our courts in the issuing of mesne process ? It provides, “ that any person demanding a writ, shall file a prsecipe with the clerk of the court, who. shall thereupon make out and deliver such writ as may be required; and, in all cases of mesne process, he shall indorse thereon the cause of action and the amount appearing to be due, or sworn to, as the same may be stated in the prsecipe or affidavit to hold the defendant to bail.”

It will hardly be pretended that a capias ad respondendum in attachment is not a mesne process; and if it be the policy of the law to give to the real debtor an opportunity to exone rate his person from imprisonment by paying the amount in dorsed on the writ, when suit is prosecuted against him in the ordinary way, much more, it would seem to us, should a third person be protected from arreSt if willing to pay the officer the sum claimed by the creditor.

To enable him to do this, the law has wisely provided that, in all cases of mesne process, the amount appearing to be due, or sworn to, as the same may be stated in the prsecipe or affidavit to hold to bail, shall be indorsed by the clerk upon the writ.

We hold the rule to be a beneficial one, and applicable to all cases of mesne process, but more especially to the very strin-, gent process of a capias ad respondendum against a garnishee.

The judgment of the supreme court for the county is affirmed. „  