
    David Proskey vs. James R. West and Hugh L. W. Phillips.
    Pleas'in abatement must be pleaded with great accuracy; a plea in abatement, therefore, commencing thus: “ And the said defendant, by his attorneys, appears to this suit, and makes known hare to this honorable'court, that the said attachment was unlawfully sued out,” &c., is bad on special demurrer, because it is pleaded without proper defence.
    If an attachment bond follows the form prescribed by the statute, it is sufficient.
    If a defendant files in the circuit court the general issue, and a special plea in bar, and the plaintiff takes issue on the former, and demurs to the latter ; and the case be tried on its merits on the former, the omission of the court to dispose of the demurrer, the plea being bad, could not be to the prejudice of the defendant, and he could not consequently render it available in an appellate court.
    The statute requires that before any attachment shall be granted, the judge or justice shall take bond and security from the party for whom the same is issued, and the presumption is that the judge or justice does his duty in ascertaining to his satisfaction the solvency and sufficiency of the sureties in all cases; but even if he should be deceived, or if the sureties become insolvent after the execution of the bond, the court has no power to compel the plaintiff to give additional security.
    On appeal, from the circuit court of Jefferson county; Hon. Charles C. Cage, judge.
    On the 6th of January, 1845, Hugh L. W. Phillips, made oath before a justice of the peace of Jefferson county, that David Proskey was justly indebted to James R. West and Hugh L. W. Phillips, copartners, under the name and firm of West & Phillips, in the sum of $1934 06, and that he is concealing his effects, so that their claim would be defeated, and that affiant believed the facts stated in the. affidavit to be true, and prayed an attachment, &c., which was granted, upon Hugh L. W. Phillips entering into bond, with James W. Hopkins as his security, in the penalty of $>3868 12, conditioned as follows: “Now if the said West & Phillips shall prosecute their said suit with effect, or incase they fail therein, shall well and truly pay and satisfy the said David Proskey, all such costs and damages as shall be awarded against the said West& Phillips, their heirs, executors, or administrators, in any suit or suits which may be hereafter brought, for wrongfully suing out said attachment, then said obligation to be void, otherwise to remain in full force and effect.”
    The attachment was issued, placed in the hands of the sheriff of Jefferson county, and by him levied on a house and lot in the town of Rodney; one horse and buggy, and a lot of dry goods and groceries. All the personal property levied on, being considered perishable, was sold by the sheriff at public auction.
    At the return term of the attachment the defendant filed the following plea, to wit:
    “ Circuit Court of Jefferson County, May Term, 1845.
    “West & Phillips v. David Proskey. In attachment.
    
    “ And the said defendant, by his attorneys, &c., appears to this suit, and makes known here to this honorable court, that the said attachment was unlawfully sued out against him, and that the same ought to be quashed and dismissed, because he says that he, the said defendant, was not, on the 6th day of January, 1845, or before or since that time, concealing his effects, so that the claim of the plaintiffs would be defeated, and that the said plaintiffs, nor either of them, had any just grounds to believe such charge of concealment by this defendant to be true; and this the said defendant prays may be inquired of by the country, and that on the verdict that the said attachment be quashed and dismissed.
    “ Maiitin, Sandeks, & PRICE, for Defendant.
    
    “ 1). Proskey.
    “ Sworn to, in open court, before me, this 14 May, 1845.
    “James J. Collen, Clerk.”
    
    
      To which plea the plaintiffs demurred, and assigned the following causes of demurrer, to wit:
    “1. Said plea does not contain sufficient matter to quash said attachments. 2. Said plea is not properly entitled of the court and term. 3. That said plea is pleaded without any defence, either whole or half. 4. Because the defendant has not denied the truth or validity of the plaintiffs’ complaint. 5. Because the said plea is not verified by affidavit. 6. Because there is no sufficient affidavit of the truth of the plea. 7. Because there is no affidavit properly entitled, and for other insufficiencies.”
    The demurrer was joined in by defendant. On the same day that the defendant filed his plea in abatement, he also entered a motion for additional security, because James W. Hopkins, the security in the attachment bond, was, at the time he signed the bond, and still is, totally insolvent. In support of his motion the defendant filed his affidavit; and on the hearing offered to prove, by the sheriff of the county, that Hopkins was insolvent at the time he signed the bond, and continued so, which was objected to by the plaintiffs, and the objection was sustained by the court; the motion was overruled and the defendant excepted. The demurrer to the plea in abatement was then sustained, and a judgment of respondeat ouster awarded. The defendant then moved to dismiss the suit, because there was no bond filed by plaintiffs to the defendant, as required by law, which motion was also overruled by the court. The defendant then filed two pleas. The first was verified by affidavit, and was in' substance as follows, to wit: “ That on the 6th day of January, A. D. 1845, he was not concealing his effects, nor has he since concealed them, so that the said claim of the said plaintiffs would be defeated, or could not be made, nor had the said plaintiffs, or either of them, any grounds to believe that he was so concealing his effects, so that the said claim of the said plaintiffs would be defeated,” concluding to the country.
    The second was a plea of non assumpsit.
    
    To the first plea last abovementioned the plaintiffs demurred, and assigned as grounds of demurrer : “ 1st. That said matter is no bar. 2d. That if said matter is pleadable it is matter in abatement, and not in bar. 3d. That the same was previously pleaded in this cause, and the plea disposed of.”
    At the April term, 1846, there was a trial upon the issue of non assumpsit, no disposition of the demurrer to the plea in bar having been made. The jury found for the plaintiffs, and assessed their damages to $964 70.
    The defendant then moved for a new trial, because the verdict .was against law and evidence ; because the court permitted improper evidence to go to the jury; and because the court refused to give the charges to the jury as asked by the defendant, and granted those asked by the plaintiffs. The motion was overruled, and the defendant filed a bill of exceptions, setting out all the evidence, which need not be noticed here.
    The bill of exceptions also shows that during the trial the defendant offered to prove by parol that the legal rate of interest for the loan on forbearance of money, in the state of Louisiana, was five per cent., to which plaintiffs objected, and the objection was ruled out by the court, to which opinion the defendant then excepted.
    The defendant then appealed to this court, and now assigns the following errors :
    “1. The circuit court erred in refusing to sustain the motion of the appellants for additional security in attachment bond, and in overruling the same.
    “2. The circuit court erred in sustaining demurrer to appellant’s plea in abatement.
    “ 3. The circuit court erred in refusing to sustain the appellant’s motion to dismiss the suit, because there was no bond filed by the plaintiffs in the court below, as required by law.
    “ 4. The circuit court erred in disposing of said cause, without disposing of appellees’ demurrer to appellant’s first plea in bar, and without disposing of the pleadings in said cause.
    “5. The circuit court erred in refusing to permit the appellant to prove by parol the legal rate of interest for the loan and forbearance of money, in the state of Louisiana.
    
      “ 6. The circuit court erred in refusing to grant to the appellant a new trial.
    “ 7. The circuit court erred in rendering judgment in the cause in favor of appellees, against appellant.”
    
      Sanders and Price, for appellant.
    We will give our views of the errors assigned, in the order they present themselves. The law requires that bond and security shall be given before the attachment is sued out. This bond is an ex parte proceeding, and the defendant cannot impeach it until returned to the circuit court.. If, when he gets there, after all his goods are taken upon the demand of an insolvent, with an insolvent security, and I might add, as in this case, by an insolvent sheriff, is he without remedy 1 We think not. The court, in the exercise of those powers incidental to the administration of justice, will see that the law is not evaded. And when the defendant was prepared to show that the security taken by the magistrate, was, at the time of signing the bond, and ever since, insolvent, it should have exercised that power, and put the plaintiffs under rule, either to give better security, or have his attachment dismissed, and the goods restored.
    The plea in abatement may not be technically formal; but it traverses the causes for suing out the attachment, which this court has decided may be done, in the case of James v. Dowell, 7 S. & M. 333. The plea is not subject to any of the objections set down in ihe demurrer, which is a special one. The first cause of demurrer is decided in the above stated case of James v. Dowell. The second is not true, for the plea is entitled of the term to which the attachment was made returnable. 3d. The said plea sets forth the abateable matter, and prays that the attachment and declaration be quashed, which is a defence to that process, but not the cause of action, and is thus half defence. 4th. The plea denies all the matter as to the pretext of resorting to the remedy by attachment. 5th. Said plea is signed, sworn to in the usual form, in open court, and certified to by the clerk. 6th. The whole contents of the plea are sworn to. 7th. The oath having been administered in open court requires no entitling of affidavit, save that which is attached to the record. We therefore consider the plea as good, and this error well assigned.
    The third error involves the sufficiency of the bond as a statutory bond, which requires that the justice shall take “bond and security from the party for whom the same shall be issued.” How. & Hutch. 519. This bond does not purport, nor is it in fact given by the party, West & Phillips. It is the bond of Phillips only, and therefore defective, and wholly insufficient. Besides, the statute above referred to requires, that it shall be “conditioned for satisfying all costs which shall be awarded to such defendant, in case the plaintiff suing out the attachment therein mentioned, shall be cast in the suit, and also all damages which shall be recovered against the plaintiff for wrongfully suing out said attachment.” The condition, as given, is, “ in case they fail in said suit, shall well and truly pay and satisfy the said David Proskey, all such costs and damages as shall be awarded against the said West & Phillips, their heirs, executors and administrators, in any suit or suits which may be hereafter brought for wrongfully suing out said attachment.” Here, then, is no provision, as required by the statute, “ for satisfying all costs which shall be awarded the defendant, in case the plaintiffs shall be cast.” It is only conditioned for costs and damages which shall “be awarded against the plaintiffs, their heirs, &c., in any suit or suits, which may be hereafter brought for wrongfully suing out said attachment,” and thereby wholly defective and insufficient.
    The fourth assignment shows an error which the court has condemned in practice.
    The fifth is submitted to the court without argument.
    The sixth and seventh may be taken .together, and if the preceding errors are well assigned, the correctness of these follow. Besides, were these objections without weight, the judgment of the circuit court is erroneous, because the proof does not show an indebtedness on the part of the defendant equal to the amount of the judgment, because it is shown by the testimony of Wilcox, that a portion of the bills, which the jury assessed against the defendant, were, at the time of the suit in his hands, claimed by other persons, the assignees and holders under West & Phillips, who must have taken them up since the suit; and the law is well settled that the plaintiffs could only recover the amount due at the time of the institution of the suit. See Gould’s Plead, chap. 4, § 7-13. Whilst the act giving the remedy by “ attachment is to be construed in the most liberal manner, for the detection of fraud, the advancement of justice, and the benefit of creditors,” its requirements must be strictly observed, and not be made the instrument of trick, or the engine of oppression, in the hands of an unscrupulous creditor. The illegal resort to this remedy requires the severest condemnation of the court. I have known many instances, where, by its abuse, correct business men have been ruined, either by their inability to procure the security, or by the shock to their credit, flowing from such a proceeding. We rely, therefore, that the judgment of the circuit court be reversed, that the attachment be dismissed, and that the sheriff be directed to restore to the plaintiff in error his goods, &c.
   Mr. Justice Teaches

delivered the opinion of the court.

This was an action commenced by a writ of attachment. Numerous errors are alleged in the course of the trial in the circuit court.

A demurrer was filed to the defendant’s plea in abatement. This demurrer was properly sustained, because the plea is pleaded without proper defence; and it is the rule in pleas of abatement to hold the pleader to great accuracy.

The objection to the attachment bond is not tenable. It follows the form prescribed by the statute and that is sufficient. Wallis v. Wallace, 6 How. 254; McIntyre v. White, 5 Ib. 298; Amos & Roe v. Allnut, 2 S. & M. 215.

The circuit court did not dispose of the demurrer to the plaintiff’s first plea in bar. This plea was pleaded in connection with the plea of non assumpsit. This would not be a good ground to reverse the judgment, and remand the case, although this court might give such a judgment upon the demurrer as the circuit court should have given, which would be to sustain the demurrer. The plea in bar being bad, the omission of the circuit court to dispose of the demurrer, there being a disposition of the cause upon its merits, is therefore not. to the prejudice of the defendant below, and upon a well established principle cannot in consequence be rendered available to the defendant in an appellate court.

There is but one other point which now need be noticed. It is t'hat the circuit court refused to sustain the motion of the defendant for additional security in the attachment bond. The defendant proposed to show by the testimony of the sheriff of the county that the surety in the bond was utterly insolvent at the time of its execution, and was also so at the time the motion was called for hearing.

The statute (How. & Hutch. 549, s. 13,) requires that before any attachment shall be granted, the judge or justice shall take bond and security from the party for whom the same shall be issued, &c.

It will be observed that, in the instances where additional or other security is allowed to be claimed, in cases where security is required in the first instance, special provision has been made by statute, pointing out the mode of the application, and the grounds which must be established whereby to entitle a party to it. How. & Hutch. 541, s. 50; Laws of 1843, c. 5, s. 3. The presumption is, that the judge, or justice, does his duty in ascertaining to his satisfaction the solvency and sufficiency of the sureties in all cases; and, although such officer may be deceived, or the sureties may subsequently become insolvent, it can only be replied that no remedy has as yet been provided for such contingencies. In the case of Jones v. Kearns, Mart. & Yerg. 242, it was decided that if a bond, given by a plaintiff for the prosecution of his suit with effect, be lost; or, if the security in the bond becomes insolvent, or removes out of the state, the court, in either of these cases, have no power to compel the plaintiff to give new or additional security for costs. In that case the court viewed with great strictness the statute requiring security for costs, said that it would go with the statute only to its literal. extent, and no further, and denied that it had any power to add other provisions to it.

Judgment affirmed.  