
    [Lancaster,
    June 14, 1823.]
    PANCAKE against HARRIS.
    in error.
    An action of debt on the act of assembly is improper in a foreign attachment, and is erroneous.
    The garnishee is not liable in scire facias on a foreign attachment, where the narr is in assumpsit, till the plaintiff has executed' a writ of inquiry: and this defect it seems, may be taken advantage of on the plea of milla bona.
    
    
      Pancake issued a foreign attachment in the Court of Common Pleas of Dauphin county, against Hiland IJ. Parker, in debt by assumption, which was levied on money in the hands of Harris, the garnishee. A declaration was afterwards filed, which in the commencement stated, that Parker was attached to answer Pancake in a plea, that he render unto him the sum of 90 dollars, which he owes to and unjustly detains from him, and then went on to state that the defendant was indebted in that sum for a horse and merchandize,- sold and delivered at the special instance and request of said Parker, in consideration whereof he undertook to pay, with the common conclusion in assumpsit Judgment was afterwards entered, and a scire facias issued againt the garnishee Harris, who pleaded nulla bona and issue being joined, the cause went to trial.
    On the trial the court below charged the jury, that the plaintiff was not entitled to a verdict against the garnishee, till the amount due by Parker was ascertained bv writ of inquiry, and that the nan* against Parker was in assumpsit. '
    To this opinion the plaintiff excepted. The jury found a verdict for the defendant, Harris, and judgment was entered thereon,
    
      
      Douglass, for the plaintiff in error.
    
      Shock and Elder, contra.
   Per Curiam.

In the attachment Parleer the action is debt on the act of assembly; which is erroneous: the act is inapplicable to attachments. At present however, the declaration is the principal subject of consideration. This in its commencement pursues the form of a declaration in debt, but the body and conclusion are strictly in the form of a declaration in assumpsit for goods sold and delivered. The judgment in the attachment therefore not being for a liquidated sum, the plaintiff could recover nothing from the garnishee without having executed a writ of inquiry of damages; and the court was right in so directing the jury. The bill of exceptions to evidence not being sustained the judgment is affirmed.

Judgment affirmed.  