
    OSTERSTOCK a. LENT.
    
      New York Common Pleas;
    
    
      General Term, July, 1856.
    District Court.—Attachment.—Signature of Clerk.
    An attachment issued in a district court against a non-resident debtor, must be
    signed and issued by the clerk, not by the justice.
    Appeal from a judgment of the justice of a district court.
   Ingraham, F. J.

This action was commenced by attachment issued and signed by the justice, upon an affidavit showing the defendant to be a non-resident, and that he was indebted to the plaintiff upon contract.

The objections of the defendant to the mode of commencing the action having been over-ruled, the defendant’s counsel did not make any further defence, and judgment by default was entered against him.

The statute in regard to assistant justices’ courts (Laws of 1820, 3), directs that the clerk shall make out and sign all process.

This statute is applicable to the present district courts, and if the attachment in the case is the commencement of the action, then it should have been signed in the mode prescribed by law.

By section 33 of the non-imprisonment act, it is provided that if the defendant resides out of the county, he may be proceeded against by summons or attachment. This is the mode of commencing the action. We have not been referred to any provision of the statute altering the law above referred to, nor have we been able to find any, allowing the justice to sign the process.

When the proceeding is by attachment, the application should be made to the court, and on the attachment being ordered, the clerk should sign and issue it.

There is nothing in the act of 1851 requiring such attachment to be made under seal. The case referred to by the defendant’s counsel related to the Marine Court, and was governed by the statute especially applicable to that court.

The cause of action was sufficiently set out, but the first objection is fatal to the jurisdiction of the court, and renders a reversal of the judgment necessary, sts. 
      
      We presume that Churchill a. Marsh, (2 Ante, 219), is the case alluded to.
     