
    Clay v. Neilson.
    August, 1827.
    Attachment — Fatal Defects. — A capias ad responden-dum, being returned “not found,” an attachment is issued, which neither specified the names of the plaintiffs nor of the defendants. It is levied on an “ox-cart,” without saying to whom the ox-cart belonged. Por each of these defects, the attachment is void.
    Appeal from the Superior Court of Notto-way county, where an action of debt was brought by Neilson & Nisbet, partners, assignees of Woodward, who was assignee of Townes, against Charles Clay and Edward Clay. A capias ad respondendum was issued against the defendants, and returned “not found,” as to one of the defendants, and as to other, that he confined himself to the house, and would not be seen by the sheriff.
    An attachment was awarded against the defendants; but, it did not specify the names either of the plaintiffs or defendants, *but only describes them as “the above named defendants.-’
    The sheriff returned, that it was levied on one ox-cart. The defendants still failed to appear; and judgment was entered at the rules, which was made final at the succeeding Court.
    From this judgment, the defendants appealed.
    The case was submitted.
    
      
       See monographic note on “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624.
      The principal case is cited with approval in Offtin-dinger v. Pord, 86 Va. 919,12 S. E. Bep. 1.
    
   August 21.

JUDGE CABELE.

This was an action of debt on a' bond against Charles Clay and Edward Clay. The capias being returned “not found,” an attachment was thereupon issued, which was returned “levied on an ox-cart.” The defendants still failing to appear, a common order was taken against them, which was afterwards confirmed.

A supersedeas was awarded on the application of Edward Clay.

The attachment specifies neither the names of the plaintiffs, nor of the defendants, nor any sum of money as being demanded in the suit. For these reasons, the attachment was fatally defective, and unfit to be the foundation of the judgment.

I consider the return, also, on the attachment, as defective. It does not state to whom the “ox-cart” belonged; and there is nothing in the body of the attachment to lead us to the knowledge of the fact. An attachment is resorted to, for the purpose of forcing an appearance. It is intended to supply the place of a capias executed. It ought, therefore, to be levied on some property belonging to each defendant; otherwise, there will be nothing to inform him of the existence of the suit; and a judgment would thus be obtained by surprise. Even if the attachment had specified the names of the defendants, yet I should be inclined to think the return defective, in not specifying to whom the ox-cart belonged. The defendants were not sued as partners, *and it is very improbable that the ox-cart belonged to them jointly. If it belonged to one of them only, there was no service of the attachment as to the other.

The judgment should be reversed, the attachment quashed, and the cause remanded to the rules, to be farther proceeded in.

JUDGES GREEN and CARR concurred, and the attachment was quashed, &c. 
      
       The President and Judge Coalter, absent.
     