
    William Stephen against Williams Thayer.
    
      Charleston District,
    
    
      1800.
    
    It is the mentfandnot otteínedonít* the absent debtor’s goods, &c.
    ciaration din attachment is filed after the expiration of hut before the year and dayt serve'the?n-st ditor™8 unless the second attaching creditor first one to declare and in default non-suit him. A judge’s order for the substitution of a new writ of attachment, in lieu of an old one lost or mislaid, is tantamount to an order for further time to declare.
    CASE on attachment.
    Upon a rule on the sheriff, to shew cause why he should not Pay over monies, arising from the sale of a house and lot, to the plaintiff in attachment, as the first attaching creditor,
    Present, Grimke, Waties, Bat, Johnson and Treze-V ANT.
    This was a case which turned upon the construction of attachment act. Mr. Taylor, as attorney for the plain* ^ smtt moved that the money arising from the sale of this house and lot, might be paid over to his client as the first attaching creditor. ° °
    Mr. Darrell, attorney for one John Rogers,
    who was a second attaching creditor, claimed this money, and moved that it might be paid over to his client, as having the jfirst judgment.
    
    
      Upon looking over the proceedings, it appeared that Mr. Taylor had issued out his attachment on the 6th day of July, 1796, but as the sheriff had mislaid the writ of attachment, the declaration was not filed within two months after the issuing of the writ. On the 22d of June, 1797, Mr. Taylor obtained an order for the substitution of a new writ of attachment, in lieu of the old one lost or mislaid ; on the 20th of 'July, 1797, he filed liis declaration; on the 31st of July, 1798, he obtained an order for judgment; ou the 2d of August, 1798, he executed his writ pf inquiry, and on the 20th of August, 1798, he got his final judgment signed.
    Mr. Darrell issued his writ on the 6th of October, 1796, filed his declaration the 31st of January, 1797, obtained an order for judgment on the 5th of February, 1798, and executed his writ of inquiry, and signed his judgment on the 26th of March, 1798, nearly five months before Mr. Taylor's final judgment; so that the great question in this case was, who should have the preference, the first attache ing creditor, or the first judgment creditor.
    On the part of Rogers, the second attaching creditor, it was contended, that the main object of the attachment act, and the attaching a part of the absent debtor’s goods, &c. was to make the absent debtor a party in court, so as to bind him with a judgment, as in ordinary and common cases, where a copy of a writ or process was left at the defendant’s most notorious place of abode ; but that the judgment when obtained, operated by common law principles, and bound the property real and personal of the absent debtor, and had all legal priorities in the same manner as if defendant had been served personally with the original process, or as if it had been left at his usual residence. It was admitted, that the' first attaching creditor would have had the preference if he had been diligent and obtained his first judgment; but as he did not, but lay by, it left an opening for Mr. Rogers to step in and get the first judgment; by Which means Stephen lost, and Rogers gamed the priority. That Stephen should have filed his declaration within two months after the return of the writ, which was on the third Tuesday in August next after it was issued ; that if the sheriff did not return the writ, he should have been ruled to, that purpose, and if on being called on, he had shewed for cause that it was lost or mislaid, he might then have got an order of substitution as well as in June, 1797, which was such a nc-gtect or omission as forfeited his right to a preference.
    Mr. Moultrie claimed the money for his client, Mr. Stephen, the first attaching creditor, on the ground that this was not a common law right, but one expressly given by the statute, which was bottomed on the civil law; the proceedings were in rem and not ad personam ; that the main end and design of it was not so much to bind the person of the absent debtor, and to make him liable, as to get possession of his goods and chattels to satisfy the demand of the plaintiff. The very title of the act, and all the clauses of it, were predicated upon this idea. The act at the first blush, presumes that the defendant is absent and out of the state, so that a common law process could not be served upon him, but that he had goods and chattels, rights and credits within its limits sufficient to satisfy the demand. It was therefore to make these liable in the absence of the defendant that the act was framed, and every clause of it is so constructed, as to answer the ends contemplated.
    The first clause of the act is express and positive; it declares that the attaching of any part of the ahsent debtor’s goods and chattels, &c. &c. in the name of the whole, shall secure the whole, and make it liable in law, to answer any judgment which should be recovered upon such process ; this, he contended, was a statutory assignment, or transfer to all intents and purposes, as effectually in law as if the defendant himself had made a formal assignment under hand and seal, or given a mortgage of the property to secure the debt. It was much more extensive in its operation than any judgment or execution, as the latter can only extend to tangible property which the sheriff could seize and sell, but this statutory transfer under the act, gives the plaintiff in attachment a right to moneys in the hands of third persons, and to bonds, notes, book debts, and all other kinds of dioses in action which belong to the absent debtor.
    It also compels a discovery on oath, of all such debts;, dues and demands from third persons, as are due and owing to the absent debtor. It likewise authorizes the attaching creditor, to sue for, recover and receive all such moneys as are due and owing to the absent debtor, and to give receipts and acquittances for the same, which are de¿ dared to be binding and conclusive against all parties whatever ; no assignment, therefore, he said, could be more conclusive or extensive than this created by this act, yet none of them so far depended on the judgment. This act likewise authorizes the sheriff to seize and take into his power all the tangible property of the absent debtor, and appraise and sell the same, and pay the proceeds into the hands of the plaintiff in attachment, and this also without any judgment; all which extensive and operative clauses in this act, he said, prove most manifestly beyond all contradiction, that it is the issuing out and lodging of this attachment in the hands of the sheriff which creates and establishes this extensive lien on the goods and chattels, rights and credits of the absent debtor; because all this is done under the different clauses of the act, long before any judgment oftentimes can be obtained against the absent debtor. Indeed, the end and design of getting final judgment in an attachment case, was more for preventing fraudulent demands against an absent debtor, than for any other purpose whatever; because the act requires that such debts and demands shall be proved to the satisfaction of a jury by the ordinary rules of evidence, and that after a notice of a year and a day to defendant to come in and plead to the suit, in order to prevent surprise in establishing a demand against the absent debtor ; but this judgment seems intended only to liquidate and establish the amount of the plaintiff’s demand, but not to give him a right to the absent debtor’s effects, which had been previously disposed of for the use of the plaintiff in attachment, agreeably to the foregoing clauses of the act.
    With regard to the supposed laches on the part of Stephen, in not filing his declaration within two months after the return of the writ of attachment, it did not deprive him of any right which he had acquired by his first attachment 5 the suit was not discontinued thereby, and if the suit was not discontinued, then the first attachment did not lose its lien. He admitted, that the second clause of the attachment act, did require a plaintiff to file his declaration within two months after the return of the writ, unless sufficient cause was shewn to the contrary. Now the cause shewn here, was the loss of the original writ by the sheriff, which was deemed a good cause for further time to file it; and this was no laches or neglect on the part of Mr* Stephen the plaintiff, or his attorney Mr. Taylor, but owing to an accident happening to the sheriff, who is a public officer, and unavoidable accidents are always allowed to take cases out of any general rule.
    The act has fixed no precise time for filing a declaration after the expiration of two months; that is left entirely to the discretion of the judge, who makes the order for further time. If, then, no time is mentioned, either by the act or any rule of court, which allows a year and a day before the cause is out of court, unless the party was forced by a rule to declare in a shorter time, and it is not alleged in ¡this case, that any such rule was ever obtained, either by the defendant or the second attaching creditor; and long before a year and a day had expired from the return of the writ, the order for substituting a new writ in lieu of the one lost by the sheriff was obtained, which he said fully cured all defects and omissions about filing this declaration; and the party immediately afterwards filed his declaration, and proceeded on regularly to final judgment. But whatever cause there might have been for taking advantage of any delay while the proceedings were in transitu, it was now t'po late after judgment. 1 Bac. 95. 3 Burr. If25. 1728». The statute of jeofails will cure all omissions or mistakes, if there were any, after verdict and judgment.
   After considering this case, the opinion of the majority of the judges, was delivered by Mr. Justice Johnson, to the following effect. That the process of attachment had both the operations contended for ; that it was the intention of the act, to secure the property of the absent debtor, fot* the satisfaction of the plaintiff’s demand, and also to make the absent debtor a party in court, so as to bind him by a judgment; but it was evident from the whole tenor of the act, that it was the process of attachment which gave the lien on defendant’s goods and chattels, &c. in the first place, and not the judgment; the words of the act in most of its clauses speak this language and convey this idea in almost? every part of them.

The words in the first clause expressly declare, that the attaching of any part in the name of the whole, shall make the whole liable in law to answer any judgment which may be obtained on that process ; or in other words, liable to satisfy the plaintiff whatever 'sum he could prove to a jury to be justly due him.

The third clause enacts, that the goods attached should fee delivered over to the plaintiff, after being inventoried and appraised, to be sold towards payment of his debt.

The fourth clause authorizes the plaintiff to sue for bonds, notes and accounts, and other dioses in action due to the absent debtor from third persons, and to give receipts and discharges in law for the same; which are to be considered as good and valid to all intents and purposes whatever, and in fact to do all the acts of an absolute assignee.

This attachment really puts the plaintiff on the footing of a judgment creditor, (only it is more extensive in its operation, as to dioses in action, than any execution could put him,) by authorizing the sale of all tangible property for the plaintiff’s debt, in addition to the recovery of all dioses in action ; and all these rights are given previous to any judgment being entered up, all which clearly prove, that it id attachment which gives the lien, and not the judgment.

With respect to the forfeiture of this right by the plaintiff’s not filing his declaration within two months, it would be contrary to the rules of law and justice, to suffer a man to lose a priority, or previous right,' by any circumstances which he himself could not control; such as a debt being unliquidated, owing to the absence of a material witness, or the like, which might prevent a man from obtaining a judgment as soon as a subsequent creditor; or as in the present case, the misfortune or omission of the sheriff in not doing his duty, in returning the writ in due time, &c. by which circumstances, a plaintiff might be delayed in getting his judgment, without any default of his own. It has already been observed, that the absent debtor was made a party in court as effectually as if he had been served with a capias ad respondendum.; if so, then the suit must be governed by common law rules, where it is not controlled by the act. The plaintiff’s suit, therefore, is not abated by the common law until the expiration of the year and day after the return. Against this construction there is no express authority; the only thing against it, is the implication arising out of the second clause of the act, which says the declaration shall be filed within two months after the return of the attachment; but there is nothing in this clause, or any other clause, which says the suit shall abate, if the plaintiff does not file his declaration within two months ; and it is a well established maxim, that the common law is not to be altered or destroyed by implication. According to this construction, therefore, the plaintiff was within the rules of the common law, in filing his declaration before the expiration of the year and day after the return. There are several acts of our legislature which are analogous to the one under consideration, and in their construction, will throw light upon this subject. The circuit court act of 1789, says, all the pleadings shall be made up at the first court, and be ready for trial at the next court. The circuit court act of 1791, says, the declaration shall be filed on or before the meeting of the second court; yet under neither of these acts was it ever contended, that the suit abated, or that the plaintiff was precluded from filing his declaration after the time required by these acts, at any time before the expiration of the year and day : indeed, if the defendant wished for a speedy end of the suit, he might have forced the plaintiff by a rule to declare, and if he did not then do it within the rule, then the defendant might have non-prossed him. And was there any thing to have prevented the second attaching creditor in this case, from ruling the first attaching creditor to file his declaration ? in which case, he might have nonprossed him unless good cause had been shewn to the contrary ; but he did not take this step, which afforded the plaintiff the advantage of the year and day to file his declaration; and it is too late after verdict and judgment to avail himself of any neglect of that kind.

Admitting, however, that the strict and rigid construction contended for, under the clause of the act, was a true one, the cause assigned by the sheriff in losing the original writ was a good one, and would have brought the plaintiff’s case under the exception mentioned in the second clause, “ unless sufficient cause is shewn to the contrary 4‘ for a longer time.” There is no judge on the bench, who would not, upon such a representation, have given further time to declare, and the order of substitution, which was given for leave to substitute a new writ in lieu of the one lost by the sheriff, may be considered as tantamount to leave given for further time to declare, as it could be for no other purpose that the order was made ; and the two months to declare, might with great propriety have been considered from that time ; and from that period, all the proceedings are conformable to the directions of the act.

It was therefore ordered, that the money in the sheriff’s hands, be paid over to Mr. Stephen, the first attaching creditor,

Waites, J. dissented from this opinion, and differed from the other judges on the point of the lien created by the act; as he conceived it was the judgment which consummated the lien, and not the attachment; consequently; that the first judgment creditor should have the priority.  