McMeekin v. Johnson , 2 Dana 459 ( 1834 )

Judge Nicholas

delivered the Opinion of the Court.

This writ, of error is prosecuted to reverse a judgment of the Scott circuit court, for one hundred and forty four'dollars and fifty cents, rendered upon an attach, merit, which was issued against the plaintiff in error, as an absconding debtor, by a justice of the peace of Scott county, directed to the sheriff or any constable of Franklin, and which was levied and returned by a constable of Franklin.

ít is objected, first, that the attachment could not lawfully go to any county but that from which it issued ; second, that the return should have been made by the sheriff, not by a constable;

The first objection cannot prevail. A fair construction of the act of 1798 wjill allow the attachment to be sent to any county in the state. The fifth section 'says, attachments for sums of five pounds and over, shall be directed to the sheriff, who may levy the same on the slaves, goods and chattels of the party absconding, “wherever the same shall be found, ’’-without any words expressly restricting it to the sheriff of the county, or to property in the county. The ninth section, on the contrary, in cases under five pounds, says, the attachment shall be directed, “to the sheriff or any constable of his (the justice’s) county.” The difference in the mode of expression, leaves room for the inference of a difference of intention. It has been determined, that the statute only authorizes the issuing an attachment by a justice of the county of which the defendant was last an inhabitant. If the construction now contended for, were allowed, the absconding debtor’s property would become wholly exempt from attachment, so soon as he got it across th© county line. This the legislature could not have in-ten(le<B Besides, the subsequent act of 1804 was passed for the express purpose of authorizing.attachments to he gerlj, ouj. 0f the- oonri-ty, for sains under five pounds ; and as there is no reason for not extending the same privilege to sums above five pounds, the presumption is, it was not so extended by this latter act, because the legislature thought there was no necessity for it — the pri- or act having allowed it to be done.

The second objection is well taken. For though the act of 1806 allows a constable to levy an aitai hment, for a sum over five pounds, yet, it direits him immediately to deliver it over, together with the property attached, to the sheriff of his county, “whose duty it shall be to. act with the same, in every respect, as it it bad been attached by himself.” One of mese duties is to return the attachment to the circuit cour t, with his official return of the service of the attachment. It was upon his return alone, that we presume tne legislature intended the circuit court should act.

Judgment reversed, with costs, and cause remanded with directions, to dismiss the attachment.