
    *Smith v. Pearce.
    Decided April 1st, 1820.
    1. Attachment against Absconding Debtor — Immaterial Variance. — if the claim of the plaintiff, in an attachment against an absconding debtor, be stated as for a certain sum, due by negotiable note, with interest from the day when such note should have been paid: and the bond for prosecuting the attachment describe it as sued out for the sum of money mentioned therein; (saying nothing of interest;) the variance is not material.
    2. Same — Special Bail. — Special bail to replevy the attached effects, and a plea to the action ought to be received, in behalf of the defendant upon an attachment issued against him as an absconding debtor; notwithstanding he did not (when solemnly called.) appear in person or by attorney; such bail and plea being offered at the term to which the attachment is returned executed, and before the judgment upon it is pronounced.
    Erancis Smith sued, out an attachment signed by an Alderman of the town of Petersburg, against Samuel Pearce as an absconding debtor, for the sum of $312.48 cents, due “by negotiable note, with interest thereon from the 1st day of February 1817.” In the condition of the bond for prosecuting' the attachment, it was said to be “for the sum of $312 48 cents without mentioning interest. On the second day of the court, to which the attachment was returned executed, Alexander Cunningham, a wealthy merchant of Petersburg, appeared in his proper person, and offered himself as special bail, to replevy the attached effects ; but the Court refused to admit him to enter himself as bail, “because the said Samuel Pearce did not appear in his proper person or by Attorney, and it appeared, to the satisfaction of the Court, that he was still an absconding debtor.” The plea of nil debet was also offered to be filed by John Allison as attorney for the said Pearce ; which plea the Court refused to receive, “because the said Pearce did not appear when solemnly called ; the plaintiff proved his note ; the cause had progressed before the Court, some time, before bail was offered ; and, when Samuel Pearce was called, the said Attorney was in Court, and did not appear for Pearce, but for Alexander Cunningham — to which opinion of the Court the said Attorney filed a Bill of Exceptions.
    The Court entered judgment in favour of the plaintiff for the debt and interest claimed by the attachment; altho’, in the negotiable note, (which was spread on the record by oyer, ) interest was not mentioned. It bore date Dec. 19th, 1816, and was payable forty days after date.
    Upon an appeal to the Superior Court of Prince George County, this judgment was reversed ; and, that Court ♦proceeding &c., it was considered, that the warrant of attachment be quashed, “the same having irregularly issued, in this, that no bond correctly reciting the said attachment seemed to have been executed by the appellee;” that all the proceedings in the Hustings Court subsequent thereto be set aside ; and that the appellant go thereof without day, &c.
    To this Judgment, a Writ of Supersedeas was awarded by a Judge of the Court of Appeals ; the grounds stated in the petition being, 1st, because there was no error in the inferior Court on the point stated in the Bill of Exceptions : — 2d, because there was no substantial variance between the bond and the attachment, and, on a dismission of the attachment upon the merits, an action would lie upon bond ; both of them stating a debt of $312.48 cents; and the only difference being that the plaintiff, in his attachment, demands interest on his debt, not because the note was for interest, but merely as a consequence of the non-payment of the debt; — the description of the attachment was therefore strictly correct : — the plaintiff did demand, as a debt, the precise sum stated in the bond : — his claim of interest, in the attachment, as a consequence of non-payment of the debt, was not necessary to identify the particular case to which the bond applied: — the description was perfect so far as it went ; and it was not necessary to state in the bond that interest also was claimed.
    Wickham for the plaintiff in error, submitted the case.
    No Counsel appeared on the other side.
    
      
      See monographic note on “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624.
      The principal case is cited in M’Cluny & Co. v. Jackson. 6 Gratt. 105.
    
   JUDGE ROANE

pronounced the Court’s opinion, that the bond given on suing out the attachment in the proceedings mentioned, was not so imperfect as to justify the judgment quashing said attachment; and that the defendant should have been permitted to give special bail, and plead to issue, as he offered to do in the Hustings Court.

Both Judgments were therefore reversed ; and it was ordered that the cause be remanded to the Superior Court, and from thence to the Hustings Court, with directions *to permit the defendant to give special bail, if the same shall be offered, and that the cause shall be proceeded in, to a final judgment.  