Benson v. Campbell , 6 Port. 455 ( 1838 )

COLLIER, C. J.

The defendant in error sued out an-attachment, under the hand and seal of. a justice of the peace of Autauga, returnable to the Circuit court of that county, against the plaintiff. The indebtedness of the plaintiff in error to the defendant, is charged in the writ of attachment, as follows:

“ That he (defendant in error) is security to a draft drawn on Turner & Lewis, for William H. Benson, in the sum of nine hundred dollars.”

No declaration was filed in the Circuit court, and judgment was rendered against the defendant in the attachment, by default.

In Wheeler et. al. vs. Bullard, we decided that a judgment by default, without a declaration, was bad on error. That decision being an authority for the reversal of this case, we have only to inquire what judgment should be rendered. If the only objection shown by the record, was the want of a declaration, we should certainly remand the cause, that leave might be obtained to perfect the pleadings, and a trial be had upon the merits. But the attachment is so defective in itself, that no declaration corresponding with it, would authorise a recovery.

Under our attachment laws,, a plaintiff must show that the defendant is indebted to him in a sum of money past due, or else in a sum of money to he paid at a future day.^*

In the case at bar, the writ does not disclose an indebtedness by the plaintiff in error to the defendant, but merely a possibility that the former will be indebted to the latter — a possibility depending upon a contingency, which may never happen — the dishonor of a draft, for the payment of which, the.defendant was a surety. Now, as the writ of attachment shows that the defendant was not entitled to the remedy he adopted, and as he can only make it availáble by the assent or waiver of the plaintiff, (which we are not authorised"to presume) the case cannot be remanded. That a surety, circumstanced as was the defendant, is entirely remediless, we do not pretend to say. We think the law was compé-tent to aid him, and only determine that his case does not entitle him to proceed by attachment under ike statute.

The judgment is-therefore reversed.

GOLDTHWAITE, J. — Not sitting.

* Vide Aik. Dig. 37, 38 and 39.