
    Lindner v. Aaron & Nelson.
    It is not necessary for the agent who takes ont an attachment, to swear to the fact, that he is agent. The certificate of the justice who grants the attachment, is sufficient evidence of that. fact.
    It is not necessary that the citizenship of the plaintiff in the attachment should appear upon the record.
    Where an attachment bond was signed by an agent, the authority of the agent need not accompany the bond; the presumption will be, that the justice required legal authority.
    Where the bond is good upon its face, the court, in absence of the defendant, will not upon mere suggestion of an amicus curias make up an issue to try its validity.
    ERROR to the circuit court of the county of Adams.
    This suit was commenced by attachment in the court below. Upon the return of the writ, the defendants moved the court to set aside the attachment, on the ground that there was no bond, as required by law. The court sustained the motion, and dismissed the suit. It appeared from the record, that the attachment was sued out by William Haneman, as agent for the plaintiff, who made the affidavit, and signed the name of the plaintiff as principal to the bond, and the same is also signed by Samuel H. Lamb-din, as security; and by Edwin R. Bennett, by his agent S. H. Lambdin.
    The justice of the peace certified that Haneman was agent, &c. The plaintiff in the attachment, moved to set aside the order quashing the attachment, for the reason that he was surprized, because the objections to the authority of the agent to make the bond, were not embodied in the motion, and read an affidavit to show the surprize. This motion was overruled.
    Two questions were raised upon the argument- of the errors in this cause: First. Whether the affidavit in support of the attachment is sufficient. And secondly. Whether the necessary power of the agents to execute and deliver the bond, should not accompany it.
    
      Sanders, for plaintiff in error.
    The errors assigned are: 1st. The circuit court erred in quashing attachment. 2d. That the said court erred in overruling motion to set aside the order quashing attachment. 3d. Because said court erred in giving judgment for costs against principals and securities in said attachment bond. ■
    The act of the legislature directing the manner of executing bond in attachment, act of June 29th, 1822, R. C. 160, provides that, “every judge or justice before granting any attachment, shall take bond and security from the party for whom the same shall be issued, his or her agent or attorney payable to the defendant,” &c. Sec. 13, page 549, Howard & Hutchinson’s Digest.
    The 36th section of the same act, page 556, of the same Digest, provides : This act shall be construed in all courts of judicature in the most liberal manner for the detection of fraud, the advancement of justice, and the benefit of creditors.” The whole ground of the motion to quash is embraced by these words: “ want of bond.” What would the most astute attorney upon seeing such an entry be required to do ? By reference to the papers, he would see that there was a bond on file; by looking into the attachment he would perceive that the affidavit was sworn to by Haneman, who swears that he was the agent of the plaintiff, Lindner; by looking at the bond, he would discover that it was signed by the agent for his principal, and by two securities, either of whom are amply good, and the most respectable merchants of the city, by reference to the statute before recited, he would discover that the bond should be taken from the party for whom the same shall be issued, his or her agent or attorney. Could it possibly enter his head that an authority should be produced on the trial of such motion, without other notice or suggestion than “want of bond” we think not; and when the trial of the motion comes on to be heard, the counsel for the defendant read the bond and attachment with its return, without one particle of other proof, or suggestion of fraud or forgery, or insufficiency of security, as the basis of the motion, what other emotion than that of surprise could he experience, when the court sustained the motion, and quashed the attachment ? In the case of Rudd v. Schlatter, &c. 1 Littell’s Kentucky Rep. 21, it is decided, “ that on a writ of error, cor am nobis, on motion to quash a sale bond, because the attorney who executed it, exceeded his authority, an affidavit will be required as to the pleas of non est factum. It is virtually such a plea.”
    But if the act above referred to is' to receive from ail courts the most liberal construction for the advancement of justice, and the benefit of creditors,'can there be a cavil as to any substantial defect of bond, or want of bond ? If the security was insufficient, why not suggest it ? If the bond was executed without authority, or was forged, why not impeach it by the usual mode, accompanied by affidavit or notice of the defect of authority, by which the plaintiff might have adduced the power or authority for its execution ? This court has decided, “ Appeal bonds can only be attacked in the appellate court for defects appearing on the face, or not conforming to the law. The bond will be presumed to be executed by the parties whose names are attached to them; and if executed by an attorney in fact, the presumption holds equally.” Carmichael v. W. F. Company, 2 Howard, 817. The same rule should apply to attachments, the bond being approved by the justice.
    But again: we insist that it is not necessary that the bond should be signed by the principals, because they are bound by the record, and would be estopped by the record to impeach or deny it. The record is a judicial proceeding under the seal of a legally constituted functionary, based upon the affidavit of a party suing it out, and it will not be denied that such record is of at least equal dignity with a sealed instrument.
    In an anonymous case reported in Hardin’s Kentucky Reports, Judge Trimble stated «in this, (and it was assented to by all the judges of the court) that on an appeal or writ of error, it was not necessary for the party taking it to execute bond himself, he was as much bound without giving bond as with it. If the bond was executed by a sufficient security, it was all that was required.” See Hardin’s Rep. and authorities there referred to, pages, 149, 177-72, &c.
    The laws of Kentucky require the appellant to give bond with approved security, and the like of plaintiffs in error, with superr cedeas. By the act of 9th Dec. 1830, the before recited act of 1S22 is so amended as to “entitle the agent of any creditor or plaintiff in attachment to all the provisions of the 7th section of said act, whenever the creditor or plaintiff in attachment shall be absent from, or reside without the county wherein the debtor or defendant may be found.” See sec. 37th of Howard & Hutchinson, page 549, which provides that the oath may be made “ by his or her agent or attorney.” The record of this case shows that the plaintiff is a resident of New Orleans. The statutes authorizing an agent or attorney to make an affidavit are found in Hutchinson &. Ho ward’s Digest.
    But again, we rely, if all the grounds above assumed shall be deemed untenable by this court, that there is still error in the order and judgment of the court refusing to set aside said order and to reinstate said attachment; the affidavit of the attorney, and the deed of confirmation of one of the securities, afford ample grounds to authorize the court in the exercise of a sound discretion, to have reinstated it, if the “ advancement of justice, or “ the benefit of creditors,” are entitled to the consideration of the court. See second bill of exceptions, 9 Cranch’s Rep. 153. 5 Wheat. Rep. 326. 5 Mass. Rep. 42. 3 J. J. Marshall, 376.
    Again: we contend that the justice of the peace who issued the attachment is to judge of the execution of the bond, just as he is to judge of the affidavit, upon which he issues the attachment, and in neither case can the circuit court inquire into the sufficiency or insufficiency of either, except for defects appearing upon their face. As well might the truth of the affidavit be contested upon a motion, as the execution of the bond before the magistrate, when it appears regularly executed upon its face, and returned by him as such. It cannot be thus summarily and collaterally inquired into, and that too by the defendant who- has never appeared in court, and not recognized as a party in court, for the defendants have never given bail in the case. The decision in the case of Carmichael v. West Feliciana Rail Road Company, already cited from 2 Howard, applies with double force in this case.
    But the judgment of the court on the motion to quash, is an anomaly. The court quash the attachment for want of a bond, and in the same judgment render judgment against the principal and securities on the bond, for the costs! Why, if the bond was insufficient, and if the court could quash the attachment on that ground, of course the bond, and all went “by the board” together. And besides, the court could render no such judgment 
      against the securities; it required a suit on the bond to fix their liability for costs and damages, allowing the bond to be good, of which, we entertain no doubt.
    We conclude, then, that this court can have no difficulty in reversing the judgment of the court below on the motion to quash, or in overruling the judgment of that court on the motion to reinstate, and thus securing to the plaintiff his rights, under our attachment law, according to its spirit, as well as its letter.
    Quitman & McMurran, on the same side.
   Opinion of the court by

Mr. Justice Teottee:

1st. The only objections to the affidavit, relied on by the defendants, are, that the agent did not swear to the fact of his agency ; or that the plaintiff in the attachment was absent from, or resided out of the state at the time. We do not think either of these grounds sufficient to render the attachment void. The fact distinctly appears upon the record, that Haneman was the agent of the plaintiff. The justice of the peace stales it in his certificate of the affidavit, and .it is again recited in the attachment itself. Neither was it necessary for the agent to swear to the fact of the non-residence dr absence of the creditor; nor do we think that fact was necessary to be placed upon the record. If such was not the case, it should be brought forward as a defence, or answer to the proceeding, by plea. But there was no plea; nor, indeed, had the defendants taken any of the steps necessary to enable them to plead. The objection therefore came in the shape of a suggestion by counsel, that the proceeding was coram non judice. But the court will not decide that it has no jurisdiction of the cause, on a ground which might be sufficient to avoid it, if it were pleaded. To do so would be to destroy the established distinction between proceedings voidable merely, and such as are absolutely void.

The statute declares, that if the attachment is issued without the affidavit and bond, it shall be void; and of course the court before whom it is returned may dismiss it. Hence, if the court see that there is no sufficient affidavit, or that there is no bond, the attachment will be set aside. But this power is only to be exercised in cases where the defect is of such a character as to deprive the court of the power to render judgment. •

But the fact of the citizenship of the party is not one that need appear upon the record. The supreme court of Tennessee have settled this question, in the case of Bloomfield v. Hancock, 1 Yer-.ger, 101. It was insisted in that case, that as citizens of the state alone have the right to attach the property of non-residents, and that was an attachment against a non-resident debtor, that the •citizenship of the plaintiff, as well as the non-residence of the defendant, must appear upon the face of the record. But Judge Catron held that it was not necessary, and the other members of ■the court concurred with him.

The objection to the bond is equally untenable. For, however well established the rule is, that an agent cannot bind his principal by deed, without an authority by deed also, yet that rule cannot apply to a case like the present. On a mere suggestion of an .attorney, as amicus curix, that there is no bond to authorize the attachment, the court is not authorized to do more than to see if there is a valid bond; and for that purpose cannot look beyond the bond itself. The statute directs the judge or justice who may issue attachment to take bond from the party, with good security, &c. The justice is thus invested with the power to determine in the first instance upon the sufficiency of the bond] and the presumption is that he has complied with the law in all things, in which it may not be shown upon the face of the bond itself that he has not done so, And upon a motion to dismiss the attachment, on the ground that it is absolutely void, the court cannot look beyond the record which the justice has sent into court. The authority of the agent is matter of evidence aliundi: it forms no part of the bond. And in the absence of the defendant in the attachment, the court will not gratuitously make up an issue which involves that collateral fact.

The utmost extent to which the court would go in such case would be to make a rule upon the party to produce the power or warrant of attorney within a reasonable time. The letter of attorney may be with the judge or justice who has granted the attachment, and yet the plaintiff according to the argument in support of the decision, may be deprived of the benefit of his attachment, and perhaps lose his debt entirely; because, the judge or justice omitted to send it with the bond into the circuit court. 2 Howard, Rep. 817. Judgment reversed.  