BUJAC, administrator of COPPINGER v. PHILLIPS, 2 Miles 71

The opinion of the court was delivered by Stroud, J. The first objection to the scire facias ad dispro-bandum is, that it was issued too late. The 4th

section of the act of assembly of 1705, which furnishes the rule on this subject, is, “ that after judgment obtained by the plaintiff upon any attachment against non-residents, the plaintiff shall before sale and after execution is awarded, find security who shall undertake for the plaintiff, that if the defendant in the attachment shall, within a year and a day next following, by himself or attorney, come into court and disprove or avoid the debt recovered by the plaintiff against him, &c. that then the plaintiff shall restore to the defendant the goods or effects, or value thereof,” &c. The counsel of Mr.

Phillips contends that the date of the judgment against the garnishee is the time from which the year and a day is to be computed. He argues, that this judgment, being founded on the scire facias to the garnishee, which in terms calls upon him to show why the plaintiff should not hare execution of the goods of the defendant attached in his hands, is, in legal effect, the award of an execution, and as such satisfies the requisition of the act of assembly.

The ingenuity of this argument is conceded, but we find no adjudged case to countenance it, and considering the nature of foreign attachment—a proceeding against an absent party without the benefit of actual notice of its commencement—were the law now, for the first time, to receive judicial construction, we would not be disposed to adopt this view. The custom of London, without doubt, is the source from which our act took its rise, and supplies in practice the forms of proceeding whereon the act is silent. In Leuknor v. Huntley, Cro.

Eliz. 712, it is stated by counsel, and not denied by the court, that “ the time disrationare debitum, is a year after the execution sued, and not forthwith after the judgment.” This statement being of a matter of fact necessarily familiar to the court, comes with nearly the same authority as an express adjudication, in ordinary cases, upon a point of common law.

Assuming, then, that such is the custom of London, and that our law is manifestly derived from this source, it is plain, that a literal adherence to the act of assembly is the true construction as to the point in question: that by execution awarded is meant the actual exit of the writ; and that, as the bond is not required to be given till after execution, the year and a day does not begin to run till this writ has been issued and bond given. A case not cited at the bar—Wetter v. Rucker, 5 E. C. L. R. 180—tends to confirm this view.

It is there decided, that it is essential to the protection of the garnishee, that payment by him to the plaintiff should be compulsory—the effect of an execution. The sole ground of this decision, as distinctly asserted by each of the judges, is the custom of London; and in two of the opinions the evidence of the custom, in this particular, is traced up to a certificate of the Recorder of London, found in the Year Book of 22 Edward IV. (A. D. 1483). The very argument urged before us, would seem to have been urged in Wetter v.

Rucker, for Park, J. makes this remark;—“ I am quite clear, that upon the custom, in every point of view, it is necessary, not only that judgment should be that execution shall issue, but that an actual award of execution should be made.” To insist, therefore, upon the necessity of the exit of the execution, as well as the giving of the bond to restore, before the year and a day commences, maintains harmony with the custom of London, not only on the very point under examination, but on the subordinate branch of the law of attachment—the character of the payment to be made by the gai'nishee.

It was objected, in the second place, that no security similar to that which is required by the custom of London, as a pre-requisite to the right of issuing a scire facias ad disprobandum, has been entered by the administrator of the original defendant. The nature of this security, under the custom, is not very distinctly defined, but it would seem to be that of special bail. Whether the language of the act of 1705 calls for the exaction of such security, even where the defendant is alive and sues out the scire facias himself, is a point not altogether plain. In Fitch v.

Ross, 4 S. & R. 564, Judge Duncan says he may come in within a year and a day, &c. and contest the demand of the plaintiff “ without entering special bail.” As the plaintiff retains the fruits of the execution in the attachment until the defendant succeeds on the scire facias ad disprobandum, there is but little reason for requiring security of any description from the defendant, who seeks in this manner to contest the validity of the plaintiff’s original proceeding.

But, however this may be, where the defendant in the attachment is alive, and has recourse to this writ, we think the exemption from giving bail, &c. which generally obtains in regard to persons suing in a representative capacity, should, in this case, be extended to a party so circumstanced. A different conclusion would, in most instances, be a denial of the right so to interpose altogether. The rule to quash the writ is therefore discharged. Pettit, President, was absent from indisposition. Rule discharged!