
    
      David R. Dillon vs. C. A. Watkins.
    
    1. Under the 21st. sec. of the Act of 1839, which makes it the duty of the Clerk before issuing a writ in Attachment “to take from the plaintiff, or his or her agent, a bond to the defendant,” &c. an attorney authorized to bring the action may give his own bond, “styling himself agent;” and this is enough to justify the clerk in signing the writ.
    2. The 21st.- sec. of the Act of 1839, constitutes another remedial Act as well as that of 1799.
    3. It is not necessary that the person voluntarily giving the bond produce a special power of attorney to bind himself by such a bond. All that the Act of 1839 requires is, that he be the plaintiff’s agent, with authority for such a purpose, and not a mere intruder.
    
      Before Richardson, J. Charleston, Fall Term,, 1843.
    Messrs. Bailey and Brewster, attornies at law, had received a letter from the plaintiff, who was absent from the State, authorizing them to issue a writ in attachment. Mr. Brewster tendered his own bond for the purpose of obtaining the writ, which the Clerk refused, and this was a rule upon him to shew cause for such refusal.
    “On motion of Henry Bailey, attorney for the plaintiff, ordered that Daniel Horlbeck, Esq. Clerk of the Court of Common Pleas for Charleston district, do shew cause, instanter, why he refuses to admit the agent of the said plaintiff, (he being absent from the said State) to sign the attachment bond, in this case, in accordance with the provision of the Act of Assembly, in such case made and provided.”
    “In reply to the rule in this case, the clerk submits to the court, that this has been the first time since the Act of 1839, in which an application has been made to the clerk to sign an attachment writ on bond signed by the agent in the agent’s name. The practice of the clerk’s office of this district relative to attachment writs since he has been clerk, (July, 1841,) and before that, as far as the clerk can ascertain from examination of papers in his office, has been, that the clerk personally draw and take from the plaintiff, or if he be absent, from his attorney in fact, a bond in the name of the plaintiff.
    
      “The present clerk has refused (invariably) to recognize any person as attorney in fact, who did not produce a regular power of attorney, under seal, authorizing the attorney to sign an attachment bond. Some of the members of the bar have protested against the practice of the present clerk, so far as concerns the clerk’s refusal to recognize a person as attorney in fact, who produced a letter with a post mark, but no appeal has ever been taken from his decision.
    “The clerk is satisfied many creditors have obtained precedence under our attachment law, from the course he has pursued, and, therefore, would request the judgment of the court on the points raised in this case.
    “The clerk declines signing the writ.
    “1st. Because, though the Clerk’s Act of 1839, page 76, taken by itself, may justify the clerk’s signing the writ, yet when taken in connection with the previous Acts which are unrepealed; and also considering the judgment of the Appeal Court, in the case of Myers vs. Leiois, 1 McMullan’s Rep. p. 54, the clerk conceives the law to be, that the attachment bond must be in the name of the plaintiff.
    “2d. Because, if the said Act justify the clerk in signing an attachment writ, on taking bond from the plaintiff’s agent in the agent’s name, yet the clerk conceives a mere letter with a post mark, (the evidence of agency in this case) authorizing the agent to sign the bond, is not sufficient evidence of the agent being regularly constituted.
    “3d. Because also, the clerk conceives that as the Attachment Act confers high and unusual powers on the creditor over the debtor’s property, it is incumbent on the agent to produce a regular power, which is to be filed in the clerk’s office, as an indemnity for the absent debtor, by way of evidence, in case the attachment has been surreptitiously issued by imposition on an attorney of the court. And,
    “4th. Because, the clerk conceives, he is to draw and take the bond, and if he signs a writ of attachment without sufficient proof of agency, he would be personally responsible in case of loss, whereas it is contended, that the responsibility for an improper issuing of a writ of attachment, rests with the attorney of court, who draws the writ and tenders the bond, and the clerk is bound to take the “ipse dixit” of parties as to agency.
    “All which is respectfully submitted by
    Daniel Horlbeck, c. c. p.”
    The presiding Judge considered the Act of 1839 as remedial, and to be construed so as to place an agent on the same footing as the plaintiff before the Act; so that, when the bond of an agent is tendered by an attorney at law, the writ is to be signed, as if the bond of the plaintiff had been tendered. The rule on the clerk was, therefore, made absolute.
    The respondent appealed from this decision, upon the grounds stated in the return.
    
      F. D. Richardson, for the respondent. Bailey, contra.
   Curia, per

Richardson, J.

Strictly speaking, upon the presiding Judge ordering the bond of Mr. Brewster to be accepted by the clerk, the writ of'attachment should have issued. The officer, if before in danger, was protected by the order.

But there appears no necessity for deciding upon the strict right of the clerk to appeal personally in such a case. 'I he objection was, in fact, rather suggested than urged upon the court, and we proceed to decide the case as presented.

Messrs. Bailey and Brewster had received a letter from the plaintiff, authorizing them to issue the writ of attachment, and Mr. Brewster tendered his own bond, under the Act of 1839, and demanded the writ of attachment, in right of the plaintiff. The question submitted is this: does the tender of Mr. Brewster’s bond, under such authority of the plaintiff, authorize the clerk to issue the writ'?

Before the Act of 1799, writs of attachment could be ordered only by a Judge, upon petition of the plaintiff. See 2d Statutes, 589. This was found inconvenient, whereupon the Act of 1799 was passed. 7 Statutes, 294. This Act dispenses with the necessity of petitioning, (fee.,-and makes the writ, in the terms of the Act, demand» able of common right; “ provided,” (fee., “ that no writ of attachment shall issue before the plaintiff has given bond to the defendant, in double the amount for which the attachment issues; to be taken by the clerk,” (fee.

Upon this Act it was plain, and was so decided in Myers vs. Lewis, McMullan, 54, that the plaintiff might give the bond, by means of his agent, duly authorized ; the bond to be, of course, executed in the name of the plaintiff, by such agent. This is in pursuance of a general law ; the agent subscribes for his principal as he would himself have subscribed.

Thus stood the law when the Act of 1839 was passed. The 21st section, p. 112, is as follows: “It shall be the duty of the clerk,” (fee., “ before issuing the same,” (attachment,) “ to take from the plaintiff, or his or her agent, a bond to the defendant, in double the amount,” (fee., (fee.

The question, then, arises under the new and additional provision, “to take the bond from the plaintiff-, or his or her agent.” Can the attorney, authorized to bring the action, legally tender his own bond upon his personal responsibility, but styling himself “agent of the plaintiff'?” Is that enough, under the Act of 1839, to justify the clerk 1

The Act of 1799 was highly remedial. It made the writ “demandable, of common right;” but still required the bond of the plaintiff; and, of course, as of right, the plaintiff might tender his own bond, executed by an attorney, duly authorized so to bind him.

Then for what purpose were the additional words “or his or her agent,” introduced'? Such terms must have a meaning, beyond the Act of 1799 ; and the more readily when found in an Act which is supposed to form a digest of former Acts, with improvements drawn from practical experience. Such an Act does not form a mere index to other Acts. It is a re enactment, with alterations, in pari materia; and at least in the 21st section, this Act constitutes another remedial Act, as well as that of 1799. The object is to facilitate still further the inception of a suit, by attachment. The alteration, then, made by the Act of 1739, may be rationally construed to introduce a new provision, and to authorize the attorney bringing the action, to give his own bond, “styling himself agent;” such a bond being the essential and only means of obtaining the writ of attachment, and prosecuting the plaintiff’s suit. When a man voluntarily gives his Own bond for another, it cannot be necessary for him to shew a special power of attorney to bind himself by such a bond ; and all that the Act of ’39 requires is, that he be the plaintiff’s agent, with authority for such a purpose, and not a mere intruder.

The agent’s bond is herein substituted for the plaintiff’s, in order to take out the writ. The interpretation is literal.

But the 21st sec. of the Act of ’39, having thus rendered the taking out the writ of attachment a more easy process, then proceeds to guard the defendant’s property in case any should be actually attached, and for that purpose the enactment is carried out as follows : “and at any subsequent time, and before judgment,” may, (i. e. the clerk) take also a recognizance of such plaintiff, or his agent, with good surety, “in double the value of the goods attached, to prosecute the suit with effect; and that the monies, goods and chattels,” &c. &. “shall be forthcoming on the order of the court, in case the absent debtor shall appear,” <&c. and, if he should not appear, “then to deliver the residue, after payment of the plaintiff’s demand, to the clerk,” &c.

The latter provision of the same section, is not now for exposition. But the obvious difference in the object, indicates the constructive fact upon the first bond, usually called the attachment bond. It is to obtain a writ made “demandable of common right,” by the Act of ’99; the remedy is, therefore, made easy, for the issuing of the writ. But when the property of the absent debtor is actually attached, his rights of property and interests become involved in the plaintiff’s suit, and may then be protected by the recognizance, or second bond, with security; and we see the marks of the practical hand that digested the Acts — the remedy by attachment is made more open to the plaintiff.

But the protection against his possible trespasses, is fully prese-vwéd; perhaps more fully than before the Act of X§«9. The danger, then, to the clerk, from taking the attachment bond, for issuing the writ, and the damages to the defendant, would seem to be misapprehended.

The motion is, therefore, dismissed.

O’Neall, Evans, Butler, Wardlaw and Frost, JJ. concurred.  