
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1804.
    Cook v. Ganey.
    Proceedings in foreign attachment cannot be instituted by petition and process under the act of 1769.
    This was an attachment, brought by way of summary pro', ijess, in Chesterfield district, and was tried before Trezevant, J.y who gave a decree for the plaintiff, subject to the opinion of this court, whether the procedure by way of petition and process, in cases of foreign attachment, be proper and legal, or not.
    Falconer, for the plaintiff
    argued that the process was legal, the debt being within the summary jurisdiction of the court.That when the attachment act passed in 1744, all actions were begun by writ to the sheriff, to attach the body. That in 1769, the legislature authorized the mode of proceeding by petition, in Cases where the demand should not exceed £20, which provision may be construed to extend as well to eases where the suit is com. tnenced by attachment of property,- as where' the service is personal, or by way of leaving a copy at the defendant’s usual place of residence. That a principal object of the provision was to avoid expense ; and that if! ordinary cases of foreign attachment, the expenses of suit are very heavy. By the practice now insisted on, the expenses will be greatly dimmii.bed.
   By the court.

The provision made by the act of 1769, em. powering the judges to determine without a jury in a summary Wa^ on Pet^'ot1’ aH causes cognizable by them in the circuit courts, to any sura not exceeding £'¿0, steiling, except wheie the title of lands comes in question, however comprehe stye it may seem to be, cannot be extended to embrace a case of foreign attachment. The mode of service is particularly specified, and required to be by serving a copy of the petition, <fcc. personally, or by leaving the same at the delendant’s usual and notorious place of abode. P L. 27 0. This shews that cases of attachment were not in contemplation : and the provision being contrary to the rules of the common law, must be construed strictly. The principal object of the provision was expedition : to expedite the recovery of small debts, and to avoid delay, as well as expence. But this end cannot be advanced by proceeding by petition in attachment cases : for where the absent debtor has no wife or attorney known in the State, notice must be given by publication in the newspapers once every three months, during a year and a day, before judgment can be had. And besides, the attachment act of 1744, P. L. 188, expressly requires the plaintiff to file his declaration in two months after the return of the writ, unless, &c.; and to serve the defendant’s wife or attorney, if known in the State, with a copy of the declaration, &c. ; and to make oath, at the dme of filing his declaration, to the debí or sum demanded, &c. If the declaration were to be dispensed with, other requisites might, that are very proper and useful to be observed, and much uncertainty would result. This innovation, therefore, cannot be safely, sanctioned, and the decree must be set aside, and the proceedings quashed for irregularity.

Present, Grimed, Waties, Johnson, Trezevant, and Brevard, Justices; Bay, J. absent.  