
    CONOVER v. CONOVER.
    On Certiorari to a Justice of the Peace. Matter of practice, on attachment for debt.
    
      Mr. Ryall, for Plaintiff in Certiorari.
    
   By the Court.

This was an attachment sued out before a Justice of the Peace, by the defendant in Certiorari, against the plaintiff in Certiorari, as a non resident debtor. A number of errors have been assigned. It will be sufficient to notice a part of them: and

1st, It does not appear by the transcript, that the Justice, on the return of the writ, appointed a day, as is required by the statute, (Elmer’s Dig. 29, pl. 45.) for the hearing of the cause.

The Justice after stating in his docket, that the constable had returned the writ, served, &e., says, that on the 12th Eeb. 1839, the plaintiff appeared and filed his demand, and that, being “satisfied with the putting up of the advertisements,” he proceeded to give judgment. This is insufficient; It ought to appear by the record, when the process was returned ; and, that the Justice then appointed a day, not less than twenty days from the issuing of the writ, for the hearing of the cause; and, that on that day, the plaintiff proved to his satisfaction, that the plaintiff had advertised the attachment in the manner prescribed by the statute.

2d, That the judgment is uncertain and unlawful.

The constable had attached a debt or sum of money in the hands of sheriff Ñafie, due to the defendant in attachment. The Justice gave judgment as follows : “ 1 give judgment in favor of the plaintiff, and against the moneys in the hands of Abrm. G. Nafie, sheriff, due Aaron Conover, defendant in attachment, for thirty-eight dollars, debt &c.” This was all wrong—the Justice should have given judgment for the plaintiff against the defendant, for such sum, as upon the evidence in the cause, he found due from the defendant to the plaintiff, leaving the plaintiff to pursue his lawful remedy against the sheriff, who was garnishee.

Eor these reasons, the judgment and proceedings must be reversed and set aside.

Judgment and proceedings reversed, and sd aside.

Cited in Lentz v. Callin, 2 Dutch. 219.  