
    Archy B. Lawrence vs. Richard Featherston.
    Where the affidavit to obtain an attachment stated the debt to he a certain sum, and the bond was in double that sum, it was held sufficient to uphold the attachment, notwithstanding the condition of the bond recited the debt claimed at ten dollars more than the affidavit. The recital in the latter must prevail.
    The statute (H. & H. 556, § 35,) which authorizes constables to execute attachments against absconding debtors, is enabling in its character; and does not embrace the case of non-resident debtors; constables, therefore, cannot execute attachments returnable into the circuit courts against nonresidents.
    
    A bond, therefore, taken by a constable from a non-resident to replevy property attached, is not binding, because taken by an improper officer; and should with the levy be quashed on motion.
    Where, however, the attachment bond, affidavit and writ are regular, but the latter is served by an improper officer, it will be improper on that account to quash the entire attachment; the levy and returnon the writ should be quashed; and where the defendant has entered his appearance, the court should require him to plead to the action.
    
      On appeal from the circuit court of Warren county; Hon. George Coalter, judge.
    Archy B. Lawrence, on the first of January, 1845, made oath before N. G. Byson, Esq., a justice of the peace for Warren county, that Richard Featherston, a non-resident, owed him “ two hundred and thirty-seven dollars and sixty-two cents, or thereabouts.” The magistrate took a bond from Lawrence with surety, in the penalty of four hundred and seventy-five dollars and twenty-four cents, payable to Featherston; the condition of which recited, that Lawrence had “ prayed an attachment at his suit against the estate of the above-named Richard Featherston, for the sum of two hundred andforty-seven dollars and sixty-two cents.” In other respects the bond conformed to the statute.
    The writ of attachment in the ordinary form, was addressed “ to the sheriff or any constable of Warren county, greeting; ” on this attachment was this return; “ Levied this attachment, January 2, 1845, on (describing the property and levy, &c.) whereupon said Richard Featherston replevied the said cotton, foy entering into bond according to law, with Daniel Morgan as 'his security, (see bond enclosed) and the said cotton was then restored to his possession. H. L. Puckett, .
    
      Constable of Warren County, Mississippi.”
    At the April term, 1845, of the circuit court, Lawrence filed his declaration; and at a subsequent day of the term, Feather-ston appeared and moved the court to dismiss the attachment, 1st. Because the attachment bond did not conform to the affidavit and writ. 2d. Because it was not executed by one authorized by law. The motion was sustained, and Lawrence appealed.
    Hay, for appellant, insisted,
    1. That the clerical error in the recital in the attachment bond, did not vitiate the bond; it was wholly immaterial, and could not affect the important part of the bond; the amount might have been omitted altogether. Peckv. Critchlow, 7 How. (Mi.) 243 ; Lovelady v. Harkins, 6 S. & M. 412 ; 6 How. (Mi.) 254.
    
      2. From all the sections of the statute considered together, especially § 25 and § 28, it seems apparent, that the term “ other officer''1 as there used, was designed to apply to constables, and give them also the power elsewhere conferred expressly, in cases against absconding debtors.
    
    Hutchinson, for appellee.
    1. T,he error in the attachment bond was fatal. H. & H. 549, § 13; 1 How. (Mi.) R. 43.
    2. None but a sheriff or his deputy can serve attachments against non-residents. H. & H. 55, § 19; lb. 556, § 35.
    P. W. Tompkins, on the same side,
    relied on the want of power in the constable to levy the attachment, and cited How. & Hutch. 548, § 11; lb. 556, § 34.
   Mr. Justice Clayton

delivered the opinion of the court.

The objection to the bond and affidavit in the cause cannot prevail. The bond is in exactly double the amount sworn to, but the condition states the debt at ten dollars more than the affidavit. The latter must control. It is the foundation of the whole proceeding, and the condition cannot control it.

But the other objection is of more force. The attachment was against a non-resident defendant, and was executed by a constable. The statute which authorizes a constable to execute attachments against absconding debtors, is enabling in its character. H. & H. 556, § 35. Without its aid, where the writ is returnable into the circuit court, such officer could not execute it. We are not authorized to extend it beyond the limit prescribed by the legislature.

Before the defendant moved to quash the attachment, the property had been replevied, and consequently released. The bond was not binding because taken by an improper officer, and one not authorized to levy the attachment. This was good cause for setting aside the bond, and the levy and return of the attachment. But this could not operate to affect the attachment itself. That was legally issued, and any impropriety in its execution, could not relate back so as to avoid the process itself. The court went too far, therefore in quashing the attachment. It should have set aside the levy, the return and the bond, and as the defendant was then in court, having entered his appearance, should have required him to plead to the action. For this error, the judgment will be reversed, and the cause remanded for further proceedings, in conformity with this opinion.

Judgment reversed.  