
    Grand Gulf Railroad and Banking Company, use of Alfred Ingraham and George Read, vs. John B. Conger.
    Where an attachment is sued out in the name of A. for the use of B., and B. makes the affidavit and executes the bond, which is conditioned for B.’s effectual prosecution of the suit; it was held, that the affidavit and bond were within the statute, which required the officer granting the attachment) to “ take bond and security from the party ” plaintiff; the usee is the real plaintiff.
    In error from the circuit court of Claiborne county; Hon. George Coalter, judge.
    Alfred Ingraham and George Read made the following affidavit, viz.
    “State of Mississippi,
    Claiborne County.
    Personally appeared before the undersigned,, a justice of the peace in and for said county of Claiborne, Alfred Ingraham and George Read, who having been by me duly sworn, depose and say, that John B. Conger is justly indebted to the President and Directors of the Grand Gulf Railroad and Banking Company for the use of them, the said Alfred Ingraham and George Read, in the sum of twenty thousand eight hundred and sixteen dollars and forty-two cents, by two promissory notes made by said Conger to the said President and Directors of the Grand Gulf Railroad and Banking Company; and that the said Conger is about to remove his effects out of the State of Mississippi, as they, the said Ingraham and Read, are informed, and believe to be true, so that said claim of the said Ingraham and Read cannot be made; and further, that they do not sue out an attachment for the purpose of vexing or harassing the said Conger, or other improper motive.
    Alfred Ingraham,
    George Read.
    Sworn to and subscribed, this the 1st day of July, A. D. 1844.
    W. R. McLean, J. P» [seal.]
    
    At the same time bond was executed by Ingraham and Read, with James H. Maury, security, to John B. Conger, for $41,632.84, dated 1st July, 1844, and conditioned as follows, viz. :
    
      “ That whereas the above bounden Alfred Ingraham and George Read have, the day of the date hereof, prayed an attachment against the estate of John B. Conger, of the county of Claiborne, State of Mississippi, for the sum of $20,816 42 cents, and have obtained the same, returnable to the circuit court of Claiborne county, to be held at the town of Port Gibson, on the fourth Monday of November next: Now if the said Alfred In-graham and George Read shall prosecute the said suit with effect, or in case they fail therein, shall well and truly pay and satisfy the said John B. Conger, all such costs and damages as shall be awarded against the said Alfred Ingraham and George Read, their heirs, executors and administrators, in any suits which may be hereafter brought for wrongfully suing out the said attachment, then the above obligation to be void, otherwise to remain in full force and effect.
    Witness our hands and seals, 1st July, 1844.
    ALFRED INGRAHAM, [SEAL.]
    George Read, [seal.]
    J. H. Maury, [seal.]”
    An attachment issued on same day, which, with the return thereon, is in these words, viz. :
    “State of Mississippi,
    Claiborne County.
    To the Sheriff or any Constable of said county, Greeting :
    Whereas Alfred Ingraham and George Read, assignees, have complained on oath to William R. McLean, Esq., Justice of the Peace in and for said county of Claiborne, that John B. Conger is justly indebted to the President and Directors of the Grand Gulf Railroad and Banking Company, for the use of Alfred In-graham and George Read to the amount of $20,816 42, to wit, by his promissory note, due 11th October, 1842, for $10,061 46; by his promissory note due 11th October, 1843, for $10,754 96 ; apd oath having also been made by the said Alfred Ingraham and George Read, that the said Conger is about to remove his effects from this state, so that their aforesaid claim will be defeated, or cannot be made, as the said Alfred Ingraham and George Read are informed and hereby believe to be true; and Alfred Ingraham and George Read having given bond and security according to the directions of the act in such cases made and provided; we therefore command you, that you attach the estate of the said John B. Conger, if to be found in your county, or so much thereof as shall be of value sufficient to satisfy the said debt and costs according to this complaint; and such estate so attached in your hands to secure, or so to provide that the same may be liable to further proceedings thereupon, according to law, at a circuit court, to be held at the town of Port Gibson, for the county of Claiborne, upon the fourth Monday of November next, so as to compel the said John B. Conger to appear and answer the above complaint of the said Alfred Ingraham and George Read, when and where you shall make known to the said court how you have executed this writ, and have there and then this writ.
    Witness my hand and seal, the first day of July, 1844.
    W. R. McLean, J. P. [seal.]”
    Executed this attachment by levying on the following named negro slaves, to wit: — Maria, George, Elliott, Mary, Charlotte, Dysa, Enoch, Eliza, George, Sanford, Laurina, America, Ripping, Sally, Saloam, Fanny, Merritt, George, Ames, Jordan, Harriet, Malinda, George, Pool, Daniel, Elizabeth and child, Mary Ann, Margaret, Elizabeth and child, Mary, Israel.
    Done on the premises of John B. Conger, the defendant in the attachment, in the presence of James H. Maury and Alexander H. Homer, two credible witnesses ; taken possession of the same as the property of John B. Conger, and declaring the same to be done at the suit of the plaintiffs within named.
    M. O. Hopkins, Sheriff.
    
    July 2, 1844. By James A. Gage, Deputy Sheriff
    
    On the 2d December, 1844, the plaintiffs filed their declaration in the name of “ The President and Directors of the Grand Gulf Railroad and Banking Company, who sue for the use of Alfred Ingraham and George Read, by attorney complain, &c.” alleging the making of the notes and promise to the President and Directors, without averring either indorsement or assignment.
    This motion was entered at the November term, T844, viz.
    
      “ Motion to quash and dismiss the attachment and proceedings in this case,
    1. Because the attachment varies from the affidavit and describes Ingraham and Read as appearing and making oath as assignees, and that the claim will he defeated or cannot be made.
    2. Because the attachment is not made returnable to the circuit court.
    
      3. The attachment requires the defendant to appear and answer the complaint of Ingraham and Read, who claim as assignees of the Grand Gulf Bank, which assignment by said bank is void.
    4. The condition of the bond does not show at whose suit the attachment was prayed and granted.
    5. The bond incorrectly states, that the attachment is returnable to the circuit court.
    6. The bond is conditioned that if said Ingraham and Read prosecute the suit with effect instead of the bank, and the name of the bank is nowhere mentioned in the bond, and Ingraham and Read cannot attach for said debt nor prosecute said claim as assignees of said Bank.
    7. The levy is defective in not setting out that the officer went either to the house or lands of the defendant, or to the person or house of the person in whose possession the goods were.
    The court below sustained the motion, and quashed the at-' tachment; and the plaintiffs below sued out this writ of error.
    
      James H. Maury, for plaintiffs in error.
    The judgment of the circuit court, quashing the attachment, seems to me palpably erroneous; 1 will only refer the court to the general statutes on the subject of attachments.
    
      J. B. Thrasher, for defendant in error.
    1. The affidavit and attachment are defective in this: the debt is described as due the Bank; while the bond is executed by Ingraham and Read, who are not described to be either agents or officers of the Bank. The legal title was in the Bank, and it was therefore the proper party to prosecute the suit. 1 Chit. PI. 1; H. & H. 548.
    2. The bond in its condition nowhere recites the name of the Bank; it was the bond of a third party, and cannot uphold the attachment. Ford v. Hurd, 4 S. & M. 683.
   Mr. Justice Thacher

delivered the opinion of the court.

An action, commenced by attachment, was instituted by the President and Directors of the Grand Gulf Railroad and Banking Company, for the use of Alfred Ingraham and George Read. The affidavit was made by the usees, the bond was executed by them and conditioned for their effectual prosecution of the suit. The statute requires that the officer granting the attachment “ shall take bond and security from the party plaintiff.” The usees were the real plaintiffs, and the Bank merely the nominal plaintiffs. The affidavit and bond are within the statute. In other respects the proceedings were correct.

Judgment reversed and cause remanded.  