Shockley vs. Bulloch et al.

The Court refused to dismiss, and this decision is assigned

as error.

ELAM, for plaintiff in error.

BLANDFORD, for defendant in error.

By the Court.-STARNES, J. delivering the opinion.

[1.] The ground first assigned by the plaintiff in error, as a reason why the motion to dismiss the attachment in this case should have been sustained, is, that the affidavit did not set forth the facts upon which it was sought to have the same issued, sufficiently, and according to the requirements of law.

A Statute of December 8th, 1820, declares, that in any case where a person has been a security for another on a note obligation, or other instrument of writing, and has been compelled to pay the same; in cases where suit is pending on such an instrument; "in cases where such note, obligation or other instrument, to which there is or are security or securities, is or are not due, and the principal debtor or debtors, in any such case, is or are removing, or is or are about to remove, or have removed without the limits of this State, or any county; and oath being made by the security or securities, his, her or their agent or Attorney, &c. of the facts, and of his, her or their liability on said note, &c. and that his, her or their principal is or are removing, or about to remove, or have removed without the limits of this State, or any county therein, an attachment may issue against the property and effects of such principal debtor or debtors, in favor of such security or securities."

It will be perceived, that in addition to the liability of the affiant, and the allegation that the principal debtor is removing, about to remove, or has removed, this Act requires that the facts upon which it is sought to sue out said attachment, shall be set forth in the affidavit. What facts? For the answer, we must look to the Act--to the conditions there specified, upon which it authorizes the attachment to issue.

Shockley es. Bulloch et al.

These conditions appear in that portion of the Act which we have cited, and are: 1. The fact of securityship upon a note, obligation or other instrument in writing. 2. A payment of the demand by the surety, or a pendency of suit on the same, or a liability upon such a demand, which is not yet due. These are the other facts, and the only other facts to which the Statute refers as bases or conditions upon which the attachment must rest.

Let us see, then, if they have their place in the affidavit.

In that instrument, the affiants make known that they are securities for the plaintiff in error, upon a note made payable to P. McLaren & Co. or bearer, for the sum of six hundred and eight dollars, and fifty-one cents, which was not then due. This plainly shows the extent and character of their liability; and they further state, that their principal is about to remove without the limits of the State. As we have seen, these are the conditions upon which the Statute authorizes an attachment to issue; and the conclusion is, that the facts are therefore sufficiently set forth.

[2.] It was insisted, in the next place, that the defendants in error should have set forth the fact in their affidavit, that the ordinary process of law could not be served upon the principal, because of his being about to remove from the

State.

The Statute does not require this; and there was propriety in its not requiring it. What ordinary process of law was there in such a case, by which securities might proceed against their principal before the debt was due? This language, in the general Attachment Law of the State, was clearly used in reference to the ordinary proceedings by creditors against debtors, on debts due. It seems to be proper, that it should not have been used in such a proceeding as that before us;' and it is not required to be used by the Act.

[3.] The third ground was, that the affidavit was made in the names of the securities; but that the attachment writ commanded the officer to seize and secure the property of the de

Shockley vs. Bulloch et al.

fendant to answer the complaint of the principal debtors, or the payees in the note.

The Statute declares and provides, that "i a case where a suit or suits may be pending as aforesaid, or on a demand where the note, obligation or other instrument in writing is not due, such security shall have a lien upon the property and effects of the principal attached, until such property is replevied or the principal debtor or debtors shall give good and sufficient security to the person suing out such attachment, his, her or their agent, &c. for the payment of such note, when it may or shall become due, or at the termination of said suit or suits; and in case the property shall not be replevied, the person attaching shall be permitted to proceed to establish his demand, as though the debt was due or the suit or suits determined; and the property or effects of such debtor, so attached by such security or securities, shall be disposed of in the manner pointed out by the Attachment. Laws of this State, and paid into the Clerk's office of the Court in which such attachment may be pending, subject to be paid over, by order of said Court, to the original, creditor and creditors, when such debt shall become due."

The attachment writ in this case commanded the Sheriff to seize and secure the property to answer the complaint of P. McLaren & Co. the principal debtors, before the next Superior Court. It will be seen, from the language of the Statute which I have just quoted, that the words, to answer the complaint of P. McLaren & Co. though not precisely authorized by the Statute, are simply surplusage. It would have been more technically accurate for the Justice to have directed that the said property should be had before the Superior Court, to answer the demand of the plaintiffs, and to abide any order and direction of the Court in the premises. But the matter of substance in the mandate, was the order to have the same before the Superior Court at the next term. No other and further direction, by the Justice, could control the right of the Court when the same was before it, to dispose thereof according to law. And no such direction could inter

Perdue, by next friend, vs. Bradshaw.

fere with the rights of the parties. The direction, as it is, therefore, amounts to a substantial compliance with the law. [3.] It is true, that our Attachment Acts should receive a strict construction. Accordingly, when they prescribe a form for proceeding under them, that should be followed; and when no form. is specified, there should be a substantial compliance with all the requirements of the law in this regard. No form was prescribed by the Act which we have under consideration, for the writ which the Justice was authorized to issue; and we have shown that it was substantially in compliance with the requirements of the Act; which, therefore, has been pursued with sufficient strictness. Judgment affirmed.

No. 31.-A. J. PERDUE, by his next friend, &c. plaintiff in error, vs. JOHN BRADSHAW, defendant in error.

[1.] 66th Common Law rule, providing that "when a verdict has been obtained at Common Law, and an appeal entered without judgment signed upon the said verdict, judgment shall not afterwards be signed further back than the time of disposing of said appeal," so far modified as to allow a nunc pro tune judgment; but not to prejudice the intermediate rights of third persons.

Motion, in Marion Superior Court. Decided by the Justices of the Inferior Court, called in to preside on account of the interest of the presiding Judge, at February Term, 1855.

A motion was made to enter a judgment nunc pro tunc, upon this state of facts. A verdict had been rendered by a Petit Jury and an appeal entered. The motion was made to enter a judgment on the first verdict. The Court refused the motion, under the 66th Common Law rule. The validity and

Perdue, by bext friend, vs. Bradshaw.

effect of that rule is the only question made by this writ of

error.

Judge BENNING, having been of Counsel, did not preside.

C. W. MILLER; SMITH & POU, for plaintiff in error. BLANDFORD & CRAWFORD; S. HALL, for defendant in error. By the Court.-LUMPKIN, J. delivering the opinion.

[1.] The Common Law rule is, that all judgments, whether interlocutory or final, shall be entered of record, of the day of the month and year when signed; and shall not have relation to any other day. Still, the discretion is given to the Court or Judge to order a judgment to be entered nunc pro tune. Indeed, it is not only competent to do this, but it seems to be almost a matter of course.

By the 66th Common Law rule of practice, adopted by the Judges of the Superior Courts in this State, it is provided that "in all and every case, when a verdict has been obtained at Common Law and an appeal entered without judgment signed upon the said verdict, judgment shall not afterwards be signed further back than the time of disposing of said appeal." (2 Kelly, 479.)

Feeling itself compelled by this rule, the Circuit Court refused permission to sign a nunc pro tune judgment in this

case.

This rule of practice was adopted, no doubt, to protect the rights of third persons, which may have accrued between the rendition of the first and the final verdict. But the same object can be secured, without prescribing an arbitrary rule, which seems to trench not only upon the Common Law, but the rights of the parties. True, by his laches, the plaintiff is placed in a condition where the Court is entitled to grant him relief upon terms. But the punishment ought to be propor tioned to the offence, and should not be vindictive. Acting