Bower v. Town

Christiancy J.: The motion to strike from the file's the plea in abatement was properly granted. The proceeding by attachment [233] unde$ our statute is two-fold, in rem, and in personam. The writ is a summons as well as an attachment. When there is no personal service upon the defendant, and he does not appear in the suit, the proceeding is strictly in rem, and no property except that attached can be taken in execution. When the defendant has been personally served, or has appeared, the proceedings in the suit are to be the same in all respects as upon the return of a summons personally served in a suit commenced by summons:— Comp. L. § 4758; and the execution may be levied upon the property of the defendant generally, as in other cases. Chapter 114 of the Revised Statutes of 1846, and the amendatory act of April 7, 1851— Comp. L. §§ 4773 to 4776 — must be construed together. And, since the passage of the latter (whatever might have been the case before)* the dissolution of the attachment on the ground set up in the plea, and the delivery of the property to the defendant, does not affect the plaintiff’s right to proceed with the suit in the same manner as if commenced by summons, if the defendant has appeared in the suit or enters his appearance under the order of the Judge or commissioner hearing the application for dissolution. And the only mode in w'hich the defendant can avail himself of the matter set up in the plea in this case, is, by an application for a dissolution of the attachment in the manner provided by this amendatory act. The judgment of the Court below must therefore be affirmed, with costs. . The other Justices concurred.