Henderson v. Drace

Napton, Judge, delivered tlie opinion of the court. This suit originated in Johnson county, and was removed from that county to Henry, and thence to Dade county, where it was ultimately disposed of. The writ issued in February, 1856, and the petition is for damages occasioned by the defendant’s taking and carrying off a slave alleged to belong to the plaintiffs. On the 13th of August, 1856, an attachment was issued by the clerk of the circuit court of Johnson county in vacation, upon an affidavit of Joseph W. Henderson, curator of the minor plaintiffs, and the filing of a written contract purporting to be a statutory bond. This attachment was levied on property in Dade county. Before the suit had been removed from Johnson county, a change occurred in the name of one of the parties plaintiffs, Nancy E. Henderson, by reason of her marriage with George Houx, which was brought to the attention of the court at the term subseqxient to the date of the attachment, and the necessary change in the title of the case was formally entered on the record. Whilst the suit was pending in Henry, the defendant put in a plea in abatement, denying that the plaintiffs had good reason to believe that he was about to remove his property. In the circuit court of Dade county, where the case finally went, a motion to quash the attachment was made, which was sustained, and an order made that the property attached should be restored to the persons from whom it had been taken by virtue of the attachment. The propriety of this judgment is the only question presented by the record. The grounds upon which the defendant relied for quashing the writ of attachment are, that it is not properly entitled in the cause; that there is no sufficient affidavit or bond; and that the cause of action specified in the writ and affidavit and bond is not the one stated in the petition. When the motion was made, the plaintiffs offered to amend the writ and [363] affidavit and to file a new bond, but tlie amendment was not allowed, nor was tbe bond permitted to be filed. There seems to be a clerical error in the date of the acknowledgment of the affidavit. The attachment issued on the 13th of August, and the affidavit and bond, though not dated, are certified by the clerk to have been acknowledged on the 18th of August, five days after the attachment issued. As the writ was returned by the sheriff on the 18th, it is quite probable that this discrepancy in the figures is merely apparent, and, if real, is at most a clerical error. It is not likely that the clerk would issue the writ before the affidavit was made and the bond given; but if this was so, and an interval of five days did occur between the date of the writ and the formal filing of these papers, it is hard to see how the error is remedied by quashing the writ. Another objection taken was that the caption of the attachment and affidavit do not correspond with the title of the suit. It seems that after the commencement of the suit and before the attachment was sued out, one of the female plaintiffs intermarried with George Houx, and the clerk, taking notice of the change of name which this change of condition produced, made a corresponding change in the title of -the cause. It is not pretended that any one was misled or could have been misled by this, and as the defendant, after all this occurred, came in and' filed his plea in abatement, there was an appearance to the suit under the title which the clerk gave it in anticipation of the action of the court. It was further objected that the affidavit and writ describe the cause of action irhproperly. The affidavit uses the very words of the statute. The affiant makes oath that the plaintiffs have a just demand against the defendant, and specifies the amount to which he believes the plaintiffs are entitled and alleges the existence of one of the causes allowed by the statute for suing out the writ. In addition to this, the affidavit proceeds to describe the nature of the damage which it is said the petition complained of, and calls the action one for injuries arising from the commission of a felony or mis [364] demeanor. This is superfluous, and might well have been so considered. The petition explained itself sufficiently. No harm, however, could result to the defendant from an incorrect statement of its contents in the affidavit or writ of attachment, and the plea in abatement may be regarded as a waiver of the exceptions. Besides, the plaintiffs offered to amend, and this is now expressly allowed by the statute. (R. C. 1855, p. 254, § 53.) The objection to the bond is, that the words “ under seal” are omitted in the body of the instrument, although scrawls are appended to the names of the persons signing it. Our statute provides for a new bond or a sufficient bond whenever objections are discovered to the one first taken. When the plaintiffs offer a good bond, it is singular that the dismissal of the suit for the want of one should be insisted on. If security is the object, and the defendant is really desirous of trying the case on its merits, the bond offered answers the purpose. It is strange that a party should complain of being harassed without adequate indemnity against damage, when the opposing party comes forward and offers to give all the security required. To persist in a motion to annul the whole proceedings under such circumstances, would seem to show that the object is not security, but a release of the property attached, and a consequent discharge from all responsibility on his part. The effect of such a course must of course be to leave the party complaining without security, when the want of it is the only thing complained of. The judgment is reversed and the cause remanded ; Judge Ewing concurring. Judge Scott absent.