
    
      Andrew Lindau v. George Arnold. Talbird & Henry v. the Same.
    
    A domestic attachment issued by a magistrate for the sum of fifty-six dollars, and levied upon the goods of a defendant who was out of the State, was set aside in favor of a foreign attachment issued the day after against the same defendant; the levy was adjudged to be void, and the goods held to be lev'able under the foreign attachment.
    Third persons, garnishees or creditors, cannot take advantage of any irregularity in issuing or sueing an attachment. — 3 McC., 201 and 345.
    Although a domestic attachment be good, its levy will not prevent a levy of a foreign attachment, subsequently issued, on the same property. The subsequent levy will constitute a subsequent lien. Such -a case is not one in which an attachment cannot be levied.
    
      When a fund is recovered in a Cour-t of general or limited jurisdiction, and is actually or constructively in Court, and is to be paid over by its mandate, it is not the subject of levy.
    
      Before Frost, J., at Charleston, October, 1849.
    On the 23d October. 1849, John A. Gyles, a magistrate, issued a domestic attachment against George Arnold, on the affidavit of Lindau, that Arnold was indebted to him in the sum of fifty-six dollars ; and that Arnold absconded and concealed himself, so that the ordinary process of law could not be enforced against him. The warrant, reciting the plaintiff’s affidavit of the sum due to him by Arnold, (which was annexed to the warrant,) and that Arnold is privily removing, or absconds and conceals himself, so that process cannot be served on him, directs the constable to levy, &c. Under this warrant a horse and cart were levied and taken by Dusen-bury, the constable. On the 24th October, 1849, Taibird and Henry issued a foreign attachment writ against Arnold, which was entered in the sheriff’s office the same day. Under it the sheriff made return of a levy of the horse and cart, in the hands of John A. Gyles and Dusenbury. It was admitted, that the arrival of Arnold in Savannah was announced in a paper of the 23d October, and that the captain of the steamer William Seabrook would depose that Arnold was in Savannah that day.
    On this case, a motion was made for the plaintiff in the domestic attachment, to have the horse and cart sold, and the proceeds paid towards satisfaction of his demand ; and for the plaintiffs in the foreign attachment, a motion was made to set aside the domestic attachment and all the proceedings thereon, and for an order of sale of the attached effects, for the benefit of the plaintiffs in the foreign attachment.
    The domestic attachment, and the levy and proceedings thereunder, were adjudged to be void, .because Arnold was absent from the State when the said process was issued ; and because Arnold was so absent when the writ in foreign attachment was sued out and levied, the same was adjudged valid and prevalent over the domestic attachment. It was also held, that the levy on the horse and cart being void equally with the attachment under which it was made, did not protect the same from levy, in the hands of Gyles and Dusenbury, under the foreign attachment; and that the plaintiffs in the foreign attachment might, on motion, vacate the domestic attachment.
    The motion'in behalf of the plaintiffs in the foreign attachment was granted.
    Plaintiff moved to reverse the order so far as it directs the proceeds of the sale of the property of the absent debtor to be applied to the payment of Talbird and Henry, and for an order to the same effect in favor of A. Lindau, on the follow-of
    Because the process of attachment in this case having been regularly, issued on proper affidavit, and the goods of the absent debtor having been attachéd in the hands of the magistrate before the attachment of Talbird and,Henry was issued, they were not subject to the latter attachment.
    
      Northrop, for the motion.
    
      Tupper, cpntra.
   Curia, per O’Neall, J.

In these cases I agree entirely with the Judge below. The defendant, at the issuing of the domestic attachment, was absent from the State. Under the Act of ’39, a magistrate, on the oath of the creditor,' may, in any one of four cases, issue an attachment: 1st, in sums of and under twenty dollars — where the debtor is absent from .the State ; 2d, where he is privately removing out of the District; 3d, where he absconds and conceals himself, so that the ordinary process of law cannot be served upon him ; 4th, where the creditor has just grounds to suspect, and does verily believe that his debtor intends to remove his effects. It is enough to say that this case is not under any one of these heads; for though the debtor was out of the State, yet the debt for which the attachment issued was for fifty-six dollars.

The attachment was, howevever, not issued against him as an absent, but as an absconding debtor. If it were necessary, it might be shewn that the attachment being issued on the alternative, that he was privily removing or absconding, would be irregular; but that is not necessary. For the ma-having no jurisdiction, it follows that his warrant of attachment is void. If it had been merely irregular, then indeed, third persons, garnishees or creditors, could not take advantage of the irregularity.

The domestic attachment being void, it follows that the levy under it is as nothing, and the levy of the foreign attachment must prevail. If the domestic attachment had been good, its levy would not have prevented a levy of the foreign attachment on the same property. The subsequent levy would have constituted a subsequent lien. Such a case is not one in which an attachment cannot be levied. When a fund is recovered in a Court of general or limited jurisdiction, and is actually or constructively in Court, and is to be paid over under its mandate, it is not the subject of levy.— The motion is dismissed.

Eichardson, Evans and Frost, JJ. concurred.

Wardlaw, J.

I agree that this domestic attachment was ' properly set aside; but I do not agree that a domestic attachment for more than $20 is necessarily void, where the defendant is out of the State, but is not notoriously so. A man who has just past the limits of the State, may be absconding, he may be about to remove his effects.

Motion TBjusQd»  