Clark vs. Luce, 15 Wend. 479

By the_ Court, Savage, Ch. J. The regularity of the issuing of the attchment is the principal, perhaps the only point in the case. It was issued under the 33d

section of the act of 1831; but it is necessary to refer to some of the previous sections. The 30th

section prohibits imprisonment upon execution on justices’ judgments, except in four cases: 1. Where the person against whom it issues has not resided within this state for 30 days before suit commenced ; 2. Where the judgment was for money collected as a public officer; 3. For official misconduct or deglect of duty; 4. For damages for misconduct or neglect in any professional employment. The 31st

section declares that no warrant shall issue in any case, except where an execution may issue to imprison the person; a warrant issues under this statute in the four cases above specified. The 32d

section provides, that where a warrant cannot issue, a non-resident plaintiff, on certain proof and security, may have a summons returnable in not .less than two and not more than four days. ’The 33d

section is as follows: “ Wherever, by the provisions of the 30th

section of this act, no warrant can issue, and the defendant shall reside'out of the county, he shall be proceeded against by summons or attachment,vetmushle not less than two nor more than four days from the date thereof, which shall be served at least two days before the time of appearance mentioned therein; and if such defendant be proceeded against otherwise, the justice shall have no jurisdiction of the cause.” The 34th

section enumerates . certain cases in addition to those in which attachments might previously issue, and the 35th

section prescribes the evidence upon which an attachment may issue in such case, or in the eases provided for in the revised statutes; but the case embraced in the 33d

section seems to be not included amongst any of those requirements. A bond is required in the cases provided for in this act, with sureties, and upon the conditions prescribed by the revised statutes. Before the act of 1831, the process against non-resident debtors was by warrant; and if judgment was obtained and property was not turned out upon execution, the defendant was imprisoned ; but when imprisonment for debt was abolished, it seemed proper that an arrest should be dispensed with, in all cases where the party could not be imprisoned upon final process. Hence the 33d

section does not allow the summons or attachment, in cases where the defendant is liable to be imprisoned, because in such cases a warrant may be issued; but when a warrant cannot be issued, this statute intended to give a more

summary and effectual remedy than against residents of the county; and therefore, as I apprehend, left the plaintiff to take an attachment against a defendant who is not a resident of the county, but is a resident of the state, as a substitute for a warrant under the former statute—and to be issued in the same manner, at the peril of the plaintiff. So it was formerly as to the issuing the warrant against a non-resident defendant. No affidavit was necessary. The plaintiff issued his warrant at his peril; if it turned out that the defendant was not a non-resident of the county, the proceeding was irregular.

So also formerly, a warrant could not be issued against a freeholder or inhabitant having a family, except under certain circumstances—and those circumstances must be shown, in order to justify the issuing the warrant; but against persons not inhabitants, or if inhabitants and not freeholders nor having families, a warrant issued as matter of course—as much so as a summons. No affidavit was required. As the statute does not now require an affidavit, none is necessary in this case.

The issuing a summons at the same time with the attachment could not operate as a bar to the suit upon the attachment, even if both were for the same cause of action, (which however is not averred.) The plaintiff had a right to go on with the suit commenced by attachment, and subsequently cjjgQonijyyg the suit commenced by summons. The common pleas 'decided correctly, and their judgment must be affirmed.