
    Truman B. Wheeler et al. vs. Henry Slavens.
    If an attachment at law he regularly sued out against an absconding debtor or one removing his property, and the bond and affidavit before their return to the circuit court, while in the custody of the magistrate who issued the attachment, be accidentally destroyed by fire, the attachment will not, on proof of these facts, be quashed for want of the affidavit, and bond “ taken and returned,” as required by the statute.
    The attachment law is to be construed “ in the most liberal manner, for the advancement of justice and the benefit of creditors; ” it was held, therefore, that though that law required the “ bond and affidavit ” of the creditor to be taken and “returned” to the court, or the attachment to be dismissed, it did not embrace the case of the accidental destruction of such bond, and affidavit duly taken, before their return; the bond having been once taken, the debtor could have the same remedy upon it after as before its destruction.
    On appeal from the circuit court of Warren county; Hon. Gr. W. L. Smith, judge.
    . An attachment at the suit of Truman B. Wheeler et ah, partners under the firm and style of T. B. Wheeler & Co., against Henry Slavens, was returned to the October terra, 1849, of the circuit court of Warren county, levied on a slave of the defendant. The-defendant moved to quash the attachment for want of bond and affidavit taken and returned according to the1 statute. Before the motion was heard, the plaintiffs introduced Samuel B. Harwood as a witness, who stated that on the 26th of April, 1849, as a magistrate„of the county; he issued this attachment; before its issuance,'the plaintiffs gave bond and affidavit according to the law of both, of which copies newly executed were shown to him, and which he recognized as substantial, and he believed literal duplicates of the original; that this bond and affidavit were destroyed on the night of the 21st of September, 1849, in a fire in the city of Vicksburg, in which the witness’s office and papers were consumed. On "this proof, the plaintiff asked leave to file the duplicate affidavit and bond ; it was refused, the motion to quash sustained, and this appeal prayed.
    
      R. Barnett, for appellants.
    1. It would be a great hardship upon appellants, that by reason of the accidental destruction of the affidavit and bond, they should be turned out of court at heavy costs, and probably the loss of their debt, especially as the law did not permit them to have the custody and care of these papers. Hutch. Dig. 802, § 8. To hold appellants responsible for the loss or destruction of these papers, would be to make them responsible for the acts of another over whom they had no control whatever.
    2. It is insisted, that there was in fact no necessity for the appellants filing new affidavit and bond; proof of the making and executing good and sufficient affidavit and bond, upon the suing out of their attachment, would have been sufficient. A recovery for all damages the appellees might sustain, could have been well had on the bond which was consumed by fire, notwithstanding its destruction. Starkie’s Evidence, 2d American ed. part 2d, p. 159, 160, and notes; 4 Verm. Rep. 504; 4 Leigh, (Va.) Rep. 57; 1 Miller’s (La.) Rep. 137-145 ; 2 Blackf. Rep. 228; 1 AVatts, 427, 428 ; 2 Haywood’s Rep. 76, and notes; 4 Phil. Ev., Cow. & Hill’s Notes, 1067; Note 273, p. 387.
    
      3. The bond burned up must be presumed to be good and valid, as well as the affidavit. The law presumes all its officers to perform their duties properly, and according to its requisitions, unless the contrary is proved.
    4. This was not an application to substitute a good bond, &c. in the place of a defective one, (this, however, is allowed in Alabama under a statute similar, if not exactly like ours; see Lowry v. Stowe, 7 Porter, 483; Planters 4* Merchants’ Bank v. ■Andrews, 8 lb. 404; 9 lb. 320,.415; 3 lb. 404;) but merely to supply the loss of a good and sufficient bond, &c. accidentally destroyed.
    5. The object of the legislature in requiring the affidavit and bond to be returned into court, was doubtless to afford defendants in attachments ample remedy for the abuse or improper use of that process, a bond given at any time that would secure this would certainly subserve the purposes of the law.
    6. The attachment in this case was not issued without bond and affidavit, it is conceded; if it had been, the process would have been void, and could never have been rendered good by any subsequent bond; but process good in the beginning, certainly .cannot become void ab initio, by matters subsequent.
    7. The construction required to be put upon our attachment law, (Hutch. Dig. 808, § 31,) would certainly not be answered were this court to do otherwise than reverse the decision of the court below in this case.
    8. The case of Redus v. Wofford, 4 S. & M. 579, shows that this court in construing our attachment law is not governed by its letter, but will give effect to it in the -spirit and design in which it was enacted. The objection in the case last cited was that the affidavit was not signed by the party who made the same, as is certainly required by Hutch. Dig. 802, § 8, if the act is to be interpreted literally.
    
      W. C. Smedes, on same side.
    1. The writ of attachment is but process. Peters v. Finney, 12 S. & M. 449. The bond and affidavit but the foundation of the process. Even if the destruction of the writ could not be supplied by parol, (a position not admitted,) the loss of the. bond and affidavit is but a mere loss of the declaration or foundation of the suit, and upon all the authorities may be supplied by parol where no sworn or exemplified copy can be had. See 1 Greenl. Ev. § 509, 521, especially this last section, and the authorities cited.
    
      2. But it is said the statute Hutch. Code, 802, § 8, requires this attachment to be dismissed, because the bond and affidavit though taken were not “returned.”
    This statute must be construed so as to answer the end designed. It is a statute that will, according to the decisions in 12 S. & M., and at the present term, be favorably construed for creditors. Even if the letter of the statute would seem'to require the dismissal of the suit, the spirit of it is wholly at war with .such a conclusion. Qui haaret in Uteris, hceret in cortice. This attachment when issued was not illegal and void; it was in all respects valid and binding. The subsequent destruction of the bond and affidavit cannot retroact so as to make the attachment illegal and void, ab initio, and yet he who reads the statute must be convinced that it intended only to refer to attachments void ab initio. It is by the statute declared illegal and void for having issued improperly. Every attachment issued without bond and affidavit, &c., is obnoxious to the law. This did not so issue; on the contrary it issued lawfully. How can the court then bring it within the condemnation of the statute? It is not in the reason of the law; and though seemingly within the words, may be, by the construction stated, wholly exempted.
    3. Can a lawful attachment by any mode ever become an unlawful one? Can that which was legal in its inception, become illegal without the interposition or agency, and against the will and desire of the party to be affected by it ? This attachment was issued according to law; the party did all he could; he is not in fault; he has complied fully with all the requisites of the statute in his power to comply with ; shall he be punished for what he could not help? Is not this case a necessary exception to the provisions of the statute. The law does not require impossibilities; and where it seems to do it, does not mean to exact their performance.
    
      4. The case of Tift v. Virden, 7 S. & M. 91, is dependent on a different principle from this. The rent statute, it is there held, must be strictly pursued. The bond is itself the judgment; if no judgment in court, how could an execution issue on it? Unless the bond be filed there is no case in court. Not so here.' Here is the attachment process as process forcing the party into court. Suppose an ordinary judgment destroyed, no execution could issue, though the party might bring a new action.on his judgment.
    5. Here the attachment law is leniently construed. It favors creditors; it is not the absence of the judgment here complained of, but merely of the preliminary steps required for the issuance of process.
    
      T. A. Marshall, for appellee.
    1. The court certainly did not err in refusing to permit plaintiffs to file the papers alleged to be copies of the original affidavit and bond in lieu of the originals. They were not the affidavit and bond upon which the attachment was founded; they were not executed before any officer, authorized to take them, nor in accordance with any statute or law of this state. The justice was authorized to administer the oath and take the bond before the attachment issued, but not after. The bond and affidavit must precede, not follow the attachment. Upon the copy, therefore, no suit could be instituted as a statutory bond. Nor could the -party be indicted for perjury upon the copy of the affidavit, even though what was stated in it might be false.
    2. I insist the attachment was properly dismissed. The statute, (Hutch. Code, 802, § 8,) after prescribing the conditions upon which attachments may be issued, reads thus: “which bond, together with the affidavit of the party complaining, his or her agent or attorney, subscribed with his or her proper name, shall be returned by the judge or justice taking the same, to the court to which the attachment is returnable; and every attachment issued without bond and affidavit, taken and returned as aforesaid, is hereby declared illegal and void, and shall be dismissed.” The language of the statute is peremptory. The bond arid affidavit must be returned to the court to which the attachment is returnable, or the attachment is illegal and void, and shall be dismissed. In this case it is admitted the affidavit and bond were not returned as required by the statute, but the excuse is offered that they were burned, and therefore could not be returned. They were destroyed without any fault or negligence of plaintiffs, and therefore they should not be injured by it. Admitting this were so, it is no answer to the imperative language of the law. To dismiss the attachment might, under the circumstances, be a hard case on the plaintiffs. Yet if the law requires it, it must be done. The affidavit and bond were the foundation of the proceeding, and their return into court was necessary to give it jurisdiction. The remedy is a harsh one, and the defendant has a right to require a strict compliance with the law. The legislature imposed the necessity of returning the bond and affidavit for good reasons. They wished to afford the defendant and court an opportunity of inspecting them, and comparing them with the law, that they might know whether they were correct or not, and that the defendant might have a clear and unembarrassed remedy on the bond, if the plaintiffs failed to prosecute their attachment with effect. In this case, if the attachment had not been dismissed and the plaintiffs had failed to prosecute it successfully, the defendant would have been compelled to have sued on the bond which had been burnt, and instead of having the evidence the law provides for him, viz. the bond, he would have to rely entirely on secondary evidence. The magistrate, had he lived until the trial and could have been gotten into court, would have proved substantially the contents of the affidavit and bond; but suppose he had died, or left the country, or forgotten the transaction, where then would have been the defendant’s evidence? or what would his action on the destroyed bond be worth ? It will not do to say that he might have sued upon the copy of the bond which the plaintiffs offered to file, as a common law bond. That is not the security or indemnity the statute provides ; and he has the right to demand all the security the legislature designed to give him. It is not denied that where notes, bills, bonds, or records have been lost or destroyed, that secondary or parol evidence of their contents may in many cases be resorted to, but in such cases they are not the foundation of the court’s jurisdiction ; it is in cases where it becomes necessary to prove their contents in the course of proceedings already properly before the court. Such cases, it is submitted, bear no analogy to the case before us. Here there is no case in court. The bond and affidavit must be returned, or the court cannot entertain the attachment.
    I have been able to find' no reported case precisely in point. But I would refer the court to the case of Smith v. Dudley, 2 Pike’s Arkansas Rep. 60; and the case of Lcíne v. Cassaday, Hardin’s Reports, 227, as more nearly resembling the case at bar than any I have béen able to find.
    3. I would suggest, however, that the justice had ample time in this case to have returned the affidavit and' bond, had he chosen to have done so. They were taken on the 26th of April, and were not destroyed until the 21st of September thereafter. He therefore had five months, less five days, to return them to the clerk’s office, in the same town with his own office. ■
   Mr.'Justice Smith

delivered the opinion of the court.

This was a proceeding by attachment in the circuit court of Warren county.

From the record the following facts appear. On the 26th of April, 1849, a writ of attachment was sued out at the instance of the appellants, from the office of a justice of the peace for said county, returnable to the October term of the circuit court. The writ was levied upon a certain slave, as the property of the appellee, and duly returned. Before the process was issued, bond was executed and affidavit made, pursuant to the directions of the statute in such cases. These were not returned and filed in the office of the clerk of the circuit court of said county, but were destroyed by fire on the 21st of September, preceding the return term of the writ, having been retained in his possession by the justice who issued it. At the October term, the defendant moved to quash the attachment, and assigned for causes the absence of the affidavit and bond. This motion was sustained, and a judgment entered dismissing the attachment, from which an appeal was taken to this court.

The provisions of the statute, requiring an affidavit to be made stating the facts necessary to entitle a creditor to the remedy, by attachment, were designed to protect the alleged debtor against the assertion, in that mode, of vexatious or unfounded demands; as the bond which it is incumbent on the attaching creditor to execute, is intended to secure indemnity to the party who may, by that means, be wrongfully put to trouble and costs, or otherwise injured. It is the duty of the judge or justice, granting the attachment, to return the bond and affidavit to the proper court. This was intended as a further protection of the attached party. It was designed by this means, that the court might ascertain whether the statute had been complied with, and for the better preservation of evidence important to the party who might be damnified by a violation of the law.

In the case under examination, the attachment was regularly and legally issued. The conditions of the statute had been followed. The attaching creditors were not entitled to the custody of the bond and affidavit, and the law makes it the duty of the officer who issues the attachment to return them to the court. Hence, by their accidental'destruction, they were not put in default. It is true that the law requires the attachment, in case of failure to return the bond and affidavit, to be dismissed. But here an excuse is offered for the failure, in this instance, to comply with this direction of the statute. They were destroyed by an accident, which the attaching creditors could not have prevented, and in which they had no agency. They were not charged with the custody and safe keeping of these documents, and it would be in violation of the spirit of the statute, and extremely unjust, to hold them responsible for their production, or to make them the sufferers by such an occurrence, unless by refusing to quash the attachment for that cause a wrong or injury would result to the opposite party. The remedy of the defendant in the attachment on the bond, in case the attachment was illegally sued out, has not been lost or impaired by its destruction, as the destruction is no impediment to a recovery upon it. 1 Greenl. Ev. § 509, 521; Newcomb v. Drummond, 4 Leigh, 57; Donaldson v. Winter, 1 Louis. R. 137; 12 Mass. R. 400.

The statute itself expressly requires, that its provisions shall be construed in the most “liberal manner for the advancement of justice and the benefit of creditors.” Hutch. Dig. 508, § 31. Hence, as the defendant was deprived of no right, and was not likely to be subjected to any loss, the court should have overruled the motion, especially as by pursuing the opposite course, the just demands of the attaching creditors might have been defeated.

Let the judgment be reversed, and the cause remanded for further proceedings.  