
    Watts’s Executors v. Robertson.
    Spring Vacation,
    1809.
    Equity Practice — Attachments.—1. As to executing attachments to compel an 'appearance. 2. Proceedings on decrees nisi. 3. How decrees on foreign attachmehts should be entered.
    On an appeal. The appellee had a judgment in Amelia County' Court for 1,2201b. of tobacco, with interest and costs against one Sturgin, and to recover which, as the said Sturgin had removed out of the Commonwealth, the appellee filed his bill in Chancery in the Countj Court of Prince Edward, stating that the testator of the appellants was indebted to the said Sturgin in the sum of 451. and prayed for an attachment, and the usual order was made in Court, and endorsed upon the subpoena. The sheriff returned the subpoena executed on Thomas Scott, (cne of the appellants,) and not found as to John Watts, (the other appellant, ) and there was an order of publication against the defendant Sturgin, before the return-day of the subpoena, but renewed afterwards; and at June Court, 1805, the attachment which had been awarded against Scott was returned “a copy left,” and the subpoena against Watts ‘‘no inhabitant,” and thereupon the Court decreed, that as a due publication of the order appeared against the said Sturgin, and he not appearing, the appellee should recover ^against him the amount of the judgment aforesaid with costs; and as it also appeared that the testator of the appellants owed to the said Sturgin 451. it was condemned in their bands to the payment of the appellees.
    From this decree there was an appeal allowed upon the petition of the appellants. The cause was submitted.
    
      
      See monographic note on “Attachments” appended to Lancaster v. wilson, 27 Gratt. 624.
    
   By the Chancellor.

To this decree there is an insuperable objection as to .the appellants, as it was rendered against them prematurely and unconditionally, since they were not legally before the Court; for upon the return of the attachment against Scott, there should have been an attachment with proclamation, and upon the return thereof, if no answer had been put in, a decree nisi might have been entered, (1 Rev. Code, p. 90, s. 44 , 45,) but which could not have been confirmed, until a copy thereof had been duly served on the appellants. And again, the decree should have been so entered as to have made the plaintiff give security for abiding such future order as the Court might make upon the appearance of the absent defendant at any time within seven years, as prescribed by law: (Id. 115,) nor should the whole sum of 451. have been decreed to the appellee, unless it had been less than his demand ; but as it was more, so much thereof as was equal to the demand, should have been decreed.

The decree as to the appellants was reversed with costs, and the cause retained to be proceeded in de novo.  