Reid v. Moore , 12 Ga. 368 ( 1852 )

By the Court.

Ntsbeb, J.

delivering the opinion.

[1.] There was error in dismissing the appeal in this case. A party defendant in attachment, by the Constitution of the State and the legislation of the State, has the right to appear and answer by himself or his counsel, or both, whether he puts in special bail, or gives security or not. By the Act of 1799, the defendant may replevy by appearing and putting in special bail, or by giving bond and security to the Sheriff or other levying officer, conditioned for his appearance at the Court to which the attachment is returnable, to abide by and perform the order and judgment of the Court. JVeto Dig. 71. This provision of the Act of 1799, defines the manner in which the property levied on may be replevied. It also recognizes the right of appearance. Appearance and putting in special bail or giving bond, are the conditions of the replevy. It certainly does not deny to the party the right of appearance. The matter, however, is definitely settled by the Act of 1816. By that Act, it is provided that the property attached shall be restored to the person against whom the process issues, up< n his giving bond and security to the officer, in double the debt or demand sued for. In that event, the proceeding is changed from a proceeding in rem to a proceeding in personam. The security of the bond for the debt is substituted for the property itself, and the party may defend, as he unquestionably may in all proceedings, in personam. “Or (proceeds the Act of 1816,) the said defendant or defendants, may file his, her or their defence to the petition or declaration of the attaching creditor or creditors, and enter into the same defence as if the property attached had been replevied.” JVew Dig. 74, 75. So that in either case, here is leave granted to appear and defend.

The 3d section of the Act of 1816, authorizes any person to act as the friend of the defendant, and upon giving good special bail, by himself or attorney, to plead and defend the sliit in the same manner as though the defendant was personally present, and did it himself. ■ By this section, no third person can appear and defend for the defendant, unless he first gives special bail; but no right whatever is denied to the party himself.

[2.] Thus it is manifest, that the laws not only do not deny, but do affirmatively grant the right of defence. A law which should deny it, would be void for unconstitutionality; for by the 8th section of the 3d article of the Constitution, it is declared that “no person shall be debarred from advocating or defending his causé before any Court or tribunal, either by himself or counsel, or both.” Prince, 911. It was conceded by the Court below, that if the defendant could appear and defend without giving bond and security, or putting in special bail, the appeal was well entered. The counsel entered the appeal, and it was proven that they were employed to defend, by the defendants in attachment. They were not themselves third persons acting as friends of the defendant, nor were they the attorneys of any such third persons, but they were the counsel of the defendants themselves. Nor does it make any difference that the defendants are citizens of another State. The right of a citizen of another State to appear and answer in our Courts of Justice, cannot be questioned. Whether he will do so or not, is for his determination. In some cases he loses nothing if he does not, for the judgment would not conclude him ; in attachment, however, he must appear and defend at his peril.

Let the judgment be reversed.