
    * John Havis v. Thomas Trapp. Joseph Grisham v. Mishack Deale.
    Where attachments had issued, under the 4th and 5th clauses of the Act of 1785, the Court will not quash the attachments on affidavits, showing, that, at the time the attachments were obtained and levied, the defendants were within reach of the ordinary process of law, and could have been arrested.
    Those were two attachments, one returnable to Kershaw District Court, the other to Abbeville District Court.
    The plaintiff in the first case made oath before a justice of the quorum, that the defendant was justly indebted to him in the sum of fifteen dollars and seventy-five cents; and that he was privately removing out of the district, or so absconded and concealed himself that the ordinary process of law could not be served upon him, whereupon the attachment issued, and was levied upon the goods and chattels of the defendant.
    Levy, for defendant, moved to quash the attachment, on an affidavit made by the deputy sheriff) that at the time the attachment was obtained, and also when the same was levied upon the goods of the defendant, he was within the reach of the ordinary process of the law, and could have been arrested. Other affidavits tending to show the same facts were offered, but not read, inasmuch as the presiding judge, Mr. Justice Gantt, overruled their sufficiency in law, to set aside the attachment. - An appeal was made, and the defendant contended for a reversal of the decision below, on the following grounds:
    1. Because the presiding judge mistook the law, in supposing the attachment could not be set aside, when it clearly appeared that the party was within the reach of the ordinary process of law. ■
    2. Because the attachment laws were only intended as a remedy in those cases where the party was remediless by the ordinary process of law; and that whenever it clearly appears that the ordinary process of *law will avail idJ-J the party, an attachment issued in such case should be set aside.
    In the last mentioned case of Grisham and Deale, an appeal was also made from a decision made by Mr. Justice Richardson, at Abbeville, on the last Western circuit, when a similar motion to quash a writ was made, and was sustained by the presiding judge. In this case the oath of the plaintiff was that the defendant intended to remove Ms effects, &c. (ilA/V O/Ctí U.O/ O/tiAlU/IVO Wt'l/C'/C'U/C'U/ U\J IK/IIWW IOOO KjJJ OlyOC
   The opinion of the Court was delivered by

Gantt, J.

The principle of law involved in the consideration of those cases being the same, it will supersede the necessity of separate opinions.

The clause in the Act of 1785, under which the first mentioned attachment was taken out, is in the following’ words : “ It shall be lawful for any justice of the peace, upon complaint to him made upon oath, by any person, that his debtor is removing out of the county privately, or absconds and conceals himself, so that the ordinary process of law cannot be served upon him, to grant an attachment against the estate of such debtor,” &o. 1 Brev. Dig. 39. Grimke’s P. L. 367-8. The latter attachment was taken out under another clause of the Act, which declares, that “ It shall be lawful for any creditor to go before any justice of the peace for the county where his debtor resides, and make oath how much is justly due to him, and that he hath just grounds to suspect, and verily believes that such debtor intends to remove his effects ; and thereupon such justice shall issue an attachment against the estate of stick debtor,” &c. 1 Brev. Dig. 40. P. L. 368. A proviso in the Act, common to both, is this: “ Provided always, That all attachments shall be repleviable by appearance, and putting in special bail, if by the Court ruled so to do, or by giving bond with good security to the sheriff or other officer serving the same, which bond the sheriff or other officer is hereby empowered and required to take, to appear at the Court *to which such at-•J tachment shall be returnable, and to abide by and perform the order and judgment of such Qourt.” 1 Brev. Dig. 39. In both cases it is the oath of the plaintiff which entitles him to the remedy by attachment. A remedy prescribed by the Act in question, and which in every case depends entirely upon the convictions which rest upon the mind of the plaintiff himself. It is a facile but coercive remedy given to plaintiffs to compel the appearance of debtors in Court; and however harsh the remedy may appear, yet having the sanction of the law on its side, it is not in the power of a Court to dispense with its efficacy.

The defendant is permitted to supersede the attachment by pursuing the mode prescribed by the Act; and this may be effected with the same ease and convenience, as the putting in of bail, in a case where it is required. If the oath has been false and corrupt, the party guilty of it may be indicted for perjury. If conscientiously and honestly taken, there is no power in the Court to set the attachment aside by motion. And the defendant for any illegality of proceeding has his remedy upon the bond which the Act enjoins to be given by the plaintiff.

Bowie and Levy, for the motion. M’Duffie and Earle, contra.

An attachment can only be considered in the light of a suit or action at law, and like all other legal remedies, its want of propriety or efficacy must be made to appear in a regular course of pleading. A short hand method of quashing, by motion, a remedy given by law would place in the hands of the Court a dangerous power; the exercise of which would be as odious to the community as it would be troublesome to the judge. Let it be once established, that the defendant may quash the attachment which bas been issued, by the abduction of affidavits before a judge, and the influence of the principle would be attended with the worst of consequences. Oaths upon oaths taken in the heat of passion and effervescence of the moment,, would soon become the order of the day; and perjuries innumerable would probably grow out of the indulgence. But considered in the light of an action *at law, why is .it to be con- r^ioq tradistinguished from all other remedies for the redress of injuries ? *- It is not pretended that the Court have a power in these to try the merits of the case upon motion. And the reason holds equally strong in the remedy by attachment, why the Court should not interfere, and cut up by the roots a remedy which the wisdom of the Legislature has prescribed ; one convenient in its nature, and where special care has been taken that the party pursuing it shall place the defendant upon a footing of security, as to any injurious consequence which may result from' any illegality in the proceeding. With these views of the subject, the Court adjudge, that the decision made in the case of Havis v. Trapp, was legal and proper, and the motion to reverse it is refused. In the case of Grisham v. Deale, the decision is reversed, and the case ordered to be restored to the docket for a legal hearing. .

Colcocic, Rott, Richardson and Johnson, JJ., concurred.

4 Strob. 292; 4 Rich. 563; 10 Rich. 15 ; 1 MoC. 511; Chev. 5 ; 1 McMul. 461; Post. 324. 
      
       7 Stat. 263, § 4.
     
      
       § 6.
     
      
       § 4.
     