Clay v. Neilson , 5 Va. 596 ( 1827 )

Judge Cabell.

This was an action of debt on a bond against Charles Clay and Edward Clay. The capias being returned “ not found,” an attachment was thereupon issued, which was returned 6 ‘ levied on an ox-cart. ” The defendants still failing to appear, a common order was taken against them, which was afterwards confirmed.

A supersedeas was awarded on the application of Edward Clay.

The attachment specifies neither the names of the plaintiffs, nor of the defendants, nor any sum of money as being demanded in the suit. For these reasons, the attachment was fatally defective, and unfit to be the foundation of the judgment.

I consider the return, also, on the attachment, as defective. It does not state to whom the “ox-cart” belonged; and there is nothing in the body of the attachment to lead us to the knowledge of the fact. An attachment is resorted to, for the purpose of forcing an appearance. It is intended to supply the place of a capias executed. It ought, therefore, to be levied on some property belonging to each defendant; otherwise, there will be nothing to inform him of the existence of the suit; and a judgment would thus be obtained by surprise. Even if the attachment had specified the names of the defendants, yet I should be inclined to think the return defective, in not specifying to whom the ox-eart, belonged. The defendants were not suéd as partners, and it is very improbable that the ox-cart belonged to them jointly. If it belonged to one of them only, there was no service of the attachment as to the other.

The judgment should be reversed, the attachment quashed, and the cause remanded to the rules, to be farther proceeded in.

Judges Green and Carr concurred, and the attachment was quashed, &c.^*

* The President aud Judge Coaiter absent .