
    A. M. McCown v. J. W. Drake.
    1. Attachment. Ancillary. A plea in abatement will lie to an ancillary attachment.
    2. Same. Same. Where defendant admitted the debt, for which, thereupon, judgment was rendered, but plead in abatement to the ancillary attachment; first, denying fraud, etc.; and, second, denying property in the goods attached; and the pleas were struck out, and the goods sold, and the proceeds applied in part payment of defendant’s debt; held, that defendant could not complain of the error, if any, in this.
    FROM HUMPHREYS.
    From the Circuit Court, November Term, 1871. Jas. E. Rice, J.
    A. C. Stockard for plaintiff.
    M. D. Cardwell for defendant.
    Will a plea in abatement lie to an ancillary attachment? Is not the remedy of the party whose property is thereby wrongfully attached confined to a suit on the attachment bond, as provided by Code, s. 3530?
    But however this may be, there is certainly no error in this record of which McCown can complain. His own sworn plea denies property in the goods attached. This cannot be a good plea to an ancillary, though it would be to an original, attachment, of which one object is to bring the defendant into court. There the defendant is interested in disclaiming property, in order to escape from the jurisdiction. But he can not possibly be interested in abating an ancillary attachment levied upon the property of another. So far from this, his interest in such case is exactly the reverse, to-wit, in having . the attachment made effectual, in order that property not his own may be applied to the payment of his debt.
    In the present case, the judgment against McCown has been partly satisfied with the proceeds of property which he swears belonged to other persons. Should he succeed in reversing the action of the court below as to the attachment, he would thereby cancel the part payment, and increase his own indebtedness. He needs protection against himself.
   McFarland, J.,

delivered the opinion of the Court.

This was a suit before a Justice, commenced by a warrant duly executed. There was also an ancillary attachment levied upon “the defendant’s goober-peas and the hay,” as the return of the officer shows.

The defendant filed with the Justice a plea in abatement, or as the record styles it, two pleas in abatement, to the ancillary attachment. The first is, that the shocks of peanuts, which we suppose is the same thing the officer calls the “goober-peas and the hay,” are not his property, but the property of Hannah and Wylie. The second denies the grounds laid in the plaintiff’s affidavit for the attachment, that is, that the party had fraudulently disposed, or was about fraudulently to dispose, of his property. The cause was taken to the Circuit Court by appeal, and upon motion these pleas were stricken out by the Court. Thereupon the parties waived a jury, and submitted the cause to the Circuit Judge, and the defendant McCown admitting his indebtedness to the plaintiff below for $110, judgment was rendered accordingly. The judgment recites that the property' attached had been sold by the Sheriff under an order in the cause, for $34, and this directed to be applied in part satisfaetion of the judgment, and an execution awarded for the balance.

The writ of error is prosecuted alone for the purpose of reversing the judgment of the Court in striking out the pleas in abatement to the attachment, and in appropriating the proceeds of the property attached to the payment in part of the judgment.

The judgment in favor of Drake and against McCown for $110 is not excepted to, but is admitted to be correct.

We fully admit that a defendant has a right to put in issue by a plea in abatement the grounds upon which an ancillary attachment has been issued. Here the defendant by his plea shows that he had not fraudulently disposed, and was not about fraudulently to dispose, of his property, and that therefore the attachment against him was improperly issued; but he also shows that the attachment was not levied upon any property of his. What was there then to which the defendant could plead in abatement? True, the attachment had been improperly issued against him, but it had been returned without any levy upon his property. It was as to him functus officio. Suppose it had been returned without any levy at all, could it be maintained that there was anything to abate? By this plea, or these two pleas taken together, he avers that as to his property it had been returned without any levy. If this were an original attachment the case would be different.. There it is important to know whether the property of the defendant has been levied upon, in order to determine if he be properly in court. Here no question of this character arises. The defendant is in court by summons. According to the facts, as Mr. McCown alleges them, the only parties that have been wronged, are Messrs. Hannah and Wylie, the true owners of the “goober-peas,” and their rights are not determined against them by the judgment in this cause.

If the plaintiff in error should succeed in obtaining the relief he is seeking, we' do not perceive how it would be of advantage to him. The judgment against him is for $110. Part of this has been satisfied, as he says, by the proceeds of property belonging to other parties. What he insists upon is that this part satisfaction shall be set aside and execution issue against him for the whole. We think there is no substantial error.

Affirm the judgment.  