
    John M’Kenzie v. David Buchan.
    The only oases in which a justice of the peace can issue attachments, are, where the debtor is either removing himself or his property out of the county privately, or so absconds and conceals himself that the ordinary process of law cannot be served upon him. 
    
    It is not necessary that the oath taken before the magistrate, previous to the issuing of an attachment, should be in writing.
    Where an attachment bond (taken according to the Act of 1785,) bears equal date ■ with the attachment, it will be presumed to have been taken before the granting of the attachment, unless the contrary appear.
    This was an attachment issued by a magistrate, pursuant to the provisions of the Act of 1785, which makes it lawful “ for any justice of the peace, upon complaint to him made upon oath by any person, that his debtor is removing out of the county privately, or absconds and conceals himself, so that the ordinary process of law cannot be served upon him, to grant an attachment,” &c. The Act also further requires, that “ every justice of the peace, before granting such attachment, shall take a bond,” &c.
    The body of this attachment stated, in the words' of the act, that the defendant had made oath that his debtor was removing out of the county privately, or so absconded and concealed himself, that the ordinary process of the law could not be served upon him; but on the bach of it an affidavit was drawn, stating that the defendant was actually without the limits of the State, but which did not appear to have been sworn to; and the condition of the bond required him to prosecute to effect, an attachment “granted” *against the goods, &c., of the defendant. The attachment was returned to Lancaster Court, Spring Term, 1818, when a motion was made before Mr. Justice Nott, to quash the proceedings on the two following grounds :
    1. Because it appeared by the affidavit on the back of the attachment, that the defendant was actually xvithout the limits of the State, and not in the act of removing, &e., as the Act requires.
    2. Because the attachment bond relates to an attachment “ granted,” and not to one “ to be granted,” whereas the Act requires the bond to be taken before the attachment is granted, and that it was irregular and void if taken after-wards, as this purports to be.
    These motions were both overruled, and this was a motion to reverse that decision.
    
      
      
         1 McC. 511; Chev. 5; 1 McM. 460, 264; 2 McM. 335; 4 Rich. 561; 5 Rich. 478; 10 Rich. 16.
    
   The opinion of the Court was delivered by

Nott, J.

The only cases where a justice of the peace can issue an attachment, are, where the debtor is either removing himself or his property out of the county privately ; or so absconds and conceals himself that the ordinary process of law cannot be served upon him. If he is actually without the limits of the State, the law has provided another mode of proceeding; and when a person would obtain an attachment from a magistrate, he must, by his oath, make out a case that comes within his jurisdiction. But the law does not require that the oath should be in writing. And the most usual method has been to set it out in the body of the attachment, as in this case. The affidavit on the back of the attachment was an act of supererogation, and does not appear to have been sworn to. The presumption, therefore, is, that an oath was taken according to the form prescribed by the Act; indeed the attachment expressly declares the fact to be so.

Levy, for the motion. Miller and Massey, contra.

2. The Act requires “that every justice of the peace, before granting such attachment, shall take bond, &c. (1 Brev. Big., 39, P. L., 368 ;) but it does not require it to be set forth in the bond, that it was taken before *granting the attachment; and if the contrary does not appear, and the bond bears equal date with the attachment, as in this case, the Court will presume the law to have been complied with. The object of the law was to prevent an attachment from being issued without giving the defendant the security afforded by the bond, and the least possible division of time is a sufficient priority. If the law has been substantially fulfilled, the Court will not permit the object to be defeated because the phraseology of some part of the proceedings may not be critically correct. But it is further to be observed, that it is not the absent debtor who is making this complaint, but another creditor, a stranger, who is contending for the same money, but who had no right to be heard in this case.

The motion must be refused.

(xRiMKE, Corcock, Ciieves, Gantt and Johnson, JJ., concurred. 
      
       Chev. 5.
     
      
       A. D. 1785; See 2 Tread. 655; 7 Stat. 214, § 6.
     
      
       Ante, 127.
     
      
       1 McC. 118; 3 McC. 201, 345; 4 Rich. 564; 4 Strob. 290.
     