When the Defendant cannot be personally served‘with process, his property may be attached to effect the same object which a writ aims at, viz. to enforce his appearance. That this is the design of the attachment law, is declared in so many words, by the original act in Davis's Revisal;‡—the attachment may be granted “ so as to compel an appearance.” Under that law, when the Defendant did appear, he was entitled-to plead, although he did not, or could not, replevy the goods attached. They were left in the hands of the sheriff to be subject to the judgment; and if they proved insufficient to satisfy it, other executions might issue for the residue.. It will be evident, by collating the two laws, that the framers of the act of 1777’had; when they drew it, that of 1746 before them jf and that the spirit and intention of the first law, in regard to the question now before us, are transfused into the latter law. It is true, that the first law is penned in much fewer words than the last, and is silent as to the condition of the replevin bond ; and from
This is an action of debt on a replevin bond, and a verdict for the Plaintiff. The Defendant moves, an arrest of judgment, because “ the bond upon which the verdict was taken, was a replevin bond, taken by Thomas Summers as constable, of the Defendant Far-Eetg and not assigned by Summers to Witherspoon; and an action of debt, brought on the same—whereas a scire facias should have issued, and an opportunity been giveri Défendarit to have surrendered his principal in discharge of himself.”
X am of opinion, the judgment should be arrested.
The Legislature, in its act contmonly called the Court Law, 1777, c. 2. § 19, says, “ Alt bail taken according to the directions of this act, shall be deemed, held,hnd taken, to be special bail; but the Plaintiff after final judgment, shall not take out execution against such bail, until an execution shall be first returned, that the Defendant is not to be found in his proper county, and until a scire facias against the bail.’’ Debt will not lie on a bail bond in this State ; as the above act of Assembly mentions expressly, that the bail shall not be subject to an execution until a scire facias shall be returned. The same construction of this act was made by Judge Johnston. * By the
This is an action of debt, on a replevh% blind, given by the Defendant and others, to replevy property levied on by Summers a aonstable, under an original attachment sued out by Witherspoon against one Johnston. The jury found a verdict for the Plaintiff, and a motion is made ip arrest of judgment, for the several reasons offered. I shall only consider one of them; because being of opinion with the Defendant upon that, it is unnecessary to examine the others.
There is certainly some obscurity in the act of 1777", c*. 2, upon this subject. The 28th section directs that “ when, any estate shall be attached, it shall be lawful for the Defendant to replevy the same, by giving bond to the. sheriff to appear at the Court to which the attachment is returnable, and to abide by, perform, and satisfy the order and judgment of such QourtP That is very different, it is true, from the condition of a bail bond; and in analogy to the phraseology of section 47 and 82, relating to bonds for the prosecution of writs of error and appeals, it is argued, that replevin securities are moré than bail, and, like securities for an appeal, are liable, absolutely, to satisfy the judgment. I should perhaps, think so too, if the ob* jects of the law were the same in these cases. But they are very different. An attachment arises out of the necessity of the case, and is substituted for an actual per* sonal service of process. Both are intended to compel an appear anee for no other purpose. If actually arrested,- the Defendant is discharged on bail. That ⅛
The result follows, that the judgment must be arrested,' For if the Defendant is bail, he cannot, by the express words of statute 1777, c. 2, § 19, according to the uniform practice of the Courts and the decision in Hunter v. Hill* be liable until a scire facias shall have been made to him.
My opinion, therefore, is, that judgment be arrested*
‡.
Page 231
*.
9 Hayw. 223
*.
1777, c. 2 § 30.
†.
1 Hayw. 21.
*.
2 Hayw. 223