
    LUMMIS against BOON.
    Property is bound upon serving an attachment.
    
    On motion, made in behalf of Lummis, that the clerk of this court pay into the hands of the auditors, &c., the money arising from the sale of the property of Joseph Higbee, made by the sheriff of Cumberland, by virtue of an execution, at the suit of Enoch Boon.
    The parties agreed to the following facts:
    On the twenty-sixth day of May, one thousand eight hundred and nine, a domestic attachment issued out of the Court of Common Pleas of the county of Cumberland, against the rights and credits, moneys and eifects, goods and chattels, lands and tenements of Joseph S. Iiigbee and Uriah Mills, absconding debtors, at the suit of the above named Ephraim Lummis, Jr., who hath survived Dayton Newcomb, returnable to June Term, 1809 ; which attachment was executed as the law directs, on the same day, and an inventory and appraisement of the property attached, was made and returned to said court; the said attachment was further regularly proceeded in to judgment, which was entered for plaintiff, November Term, 1809.
    On the thirtieth of May, one thousand eight [539] hundred and nine, a judgment was entered in this court upon a bond and warrant of attorney, given by the said Joseph S. Higbee, to the above named Enoch [f] Boon, dated the first ■ day of May, one thousand eight hundred and nine, and on the day of June, execution was issued, returnable, September Term, 1809; on the fifth day of June it was delivered to John Buck, Esq., sheriff of Cumberland, who on the day of June, levied the said execution upon the same property of Joseph S. Higbee, which had been previously attached by virtue of the attachment herein mentioned.
    It was agreed between the said Lummis and Boon, that the sheriff should pi-oeeed to sell the property of Joseph S. Higbee, attached upon the execution as aforesaid, and pay the money arising from the sale thereof, to the clerk of this court, to remain subject to the determination of the following question:—
    Was the property and estate of Joseph S. Higbee, attached in the manner hereinbefore mentioned, bound by the writ of attachment from the time of the execution thereof?
    If the court are of opinion, that the property and estate of Joseph S. Higbee, attached as hereinbefore mentioned, is bound by the writ of attachment, it is agreed that they direct the money to be paid to the auditors appointed by the court in the attachment herein mentioned, to be disposed of as the law directs, with costs of the present motion, to Ephraim Lummis, Jun’r.
    But if the court are of opinion, that the property and estate of Joseph S. Higbee, attached in the manner hereinbefore mentioned, is not bound by the writ of attachment, but subject to the execution which was issued as herein mentioned, at the suit of Enoch Boon, it is agreed that they direct the money to be paid to the said Enoch Boon, with costs attending the present motion.
    It further appeared by affidavits taken by an agreement of the parties, that the sheriff of Cumberland on [*] the morning of the day the attachment was taken out and served, was at Higbee’s house, about an hour after sunrise, with a capias at the suit of Lummis; that the sheriff could not take Higbee, but that Higbee fled in a sulkey, full speed towards Salem, and passed the Delaware river, and had never returned; that between 12 and 1 o’clock of the same day, Lummis took out the writ of attachment in question, and that it was executed about 2 o’clock of the same day.
    
      
       Attachment after a judgment, and before execution, does not bind land 7 Halst. 89.
      
    
   Kirkpatrick, C. J., and Rossell, J.

Were clearly of opinion, that the property of Higbee was bound by the attachment.

Pennington, J.

It appears to me that this is a plain case. The only thing that has puzzled me in it is, how it ever came to be made a question. On the 26th of May, 1809, an affidavit was made in the terms [540] required by the attachment act; this affidavit was duly filed, and on which, a writ of attachment was issued; and on the same day the property of the defendant was attached; the writ returned, and judgment regularly obtained, according to the course of the court and the provisions of the act. The sixth section of the act says that the writ shall bind the property and estate of the defendant from the time of executing the same. After the issuing of this writ, and the due execution thereof, judgment is obtained in this court on a warrant of attorney, and execution issued thereon, and the sheriff levied on the same property. The property being bound by the attachment, already in the custody of the law, the levy under the execution was a nullity. As this cause was submitted without argument it is difficult to divine what point the counsel for Boon intended to raise. From facts stated in some accompanying affidavits, I however apprehend that he intended to find fault with the plaintiff in attachment, for making affidavit before he was certain that Higbee had passed the Delaware river. It appears to me that if there [*] was any ground for this objection, it should have been taken before the common pleas. But supposing it properly a question in this court, I do not know that the actual non-residence of the defendant is an essential requisite to give validity to a writ of attachment; all that is required by the act is that the plaintiff shall make oath “that he verily believes that his debtor absconds from his creditors, and is not, to his knowledge or belief, resident in this State at the time.” I am not satisfied that if this oath was false, that it would destroy the attachment; but supposing it would, it is to be presumed that Lummis knew, at the time he made the affidavit, between twelve and one o’clock, that Higbee had fled from the sheriff in the morning, towards the Delaware, in a sulkey — the most expeditious manner of traveling; he might verily believe, at the time, that he was out of the State, and conscientiously make the affidavit. It appears to me that this is exactly the case that the law intended to provide for. The creditor could not get the person of the debtor, for he had absconded; and, therefore, resorted to his property and estate, which he had left behind. I am clearly of opinion that the property is bound by the writ of attachment.

By the Court.

Let the money be paid to the auditors in the attachment, agreeable to the stipulations in the case submitted.

Criticised in City Bank v. Merritt, 1 Gr. 131. Explained in Reeves v. Johnson, 7 Halst. 29.

Cited in Vreeland v. Bruen, 1 Zab. 214. 
      
       The case of Sheppard v. Boon grew out of the same transaction, and was decided this term, the same as the above.
     