
    J. A. Harper vs. J. W. Scuddy.
    There is nothing in the attachment law, which precludes a defendant from availing himself, (on a motion,) of any defect or irregularity in the process of attachment.
    Before Evans, J., at Abbeville, Spring Term, 1841.
    This was a domestic attachment, issued by a magistrate, and directed to the Sheriff of Abbeville district. It was made returnable on the 2d Monday in March. The Court sits on the 3d Monday. A motion was made to set it aside, on the ground that it should have been directed to all and singular the *sheriffs of the State, and was not returnable to any term of the Court. The motion was granted ; and the plaintiff appeals :
    See infra, 460 ; 4 Strob. 290; 4 Rich. 561; 5 Rich. 64, 478, as to Monday; 2 McM. 339. An.
    
    1. Because his Honor erred in holding that the defendant in attachment, by motion to the Court, without appearance, by special bail, to the action, may take advantage of a mere irregularity in the proceedings.
    2. Because his Honor held that the defendant being required to appear the second instead of the third Monday in March, was a defect which rendered the proceedings void, and showed that the Court had no jurisdiction.
    
      Wilson, for the motion,
    cited Acts 1839,  and contended that there was no defect in the process. Act 89; 2 Brev. 168. It would be good at the next term after the return.
    Irregularity or error in an attachment, cannot be taken advantage of by motion. It must be by special plea and appearance. Harp. Rep. 368, Acock vs. Linn & Landsdown ; 3 Chitty’s Cent. Practice, 74 ; Cheves’ Rep. 5, 6.
    The defendant is no party so long as the attachment is confined to his goods.
    
      Burt, contra.
    
      
      
         11 Stat. 18, § 18; 7 Stat. 254, §§ 3, 4. An.
      
    
   Curia, per

Evans, J.

In this case a domestic attachment was set aside on the ground that it was made returnable to the next Court of Common Fleas, to be holden at Abbeville court house on the second Monday in March. By law, the Court of Abbeville sits on the third Monday. There can be no doubt that, in ordinary cases, this objection is fatal, and that the service would be set aside on motion. But it is supposed because this is an attachment, a different rule is to prevail. The grounds of appeal assume that the defendant cannot be heard in Court, until he appears and dissolves the attachment by giving special bail. If this proposition be true, then he who is made a party in Court, by attaching his property, is shut out from any of those exceptions of which advantage can only be taken by motion, for when he appears, his mouth is closed as to any irregularity in the process, be it ever so great. * There is nothing in the attachment laws which admits of any such construction. The attachment issues, because process cannot be served personally, or by leaving a copy, and by attaching his goods instead of his person, the defendant is made a party in Court ; but I do not find anything in the attachment Acts which takes from him the privilege of other defendants, except that he cannot have his properly restored, or dissolve the attachment, otherwise than by appearance and special bail. In the construction of these Acts, our Courts have gone no further than to say, they will not hear such objections from the garnishees or strangers. To this effect the case of Foster vs. Jones, (1 McC. 116,) Cumberford vs. Hall, (1 McC. 345,) McBryde vs. Floyd, (2 Bailey, 209,) Chambers vs. McKee, (1 Hill, 229.)

In none of these, is the right of the defendant to except to the irregularity denied, and in some of them it is expressly recognized.

The motion to reverse the decision of the Circuit Court is refused.

The whole Court concurred.  