Norton v. Winter ( 1854 )

Williams, C. <L

Section 9 of the “ Act allowing and regulating writs of attachment,” (General Laws of Oregon,page 60,) declares “ that it shall be competent for such defendant, (meaning the defendant in an attachment suit,) at or before the second term, to file special bail or surrender himself into custody, or elect to have the property attached remain in custody.”

The same section further provides, “ that if the defendant shall enter special bond, or surrender himself into custody, as aforesaid, the operation of such attachment upon the property and moneys of said defendant shall cease • in respect of the plaintiffs, whose declarations may have been pleaded to in custody, or by reason of having filed special bail.” Admitting that Winter and Latimer, by surrendering themselves into custody, or filing special bail, could thereby have dis.solved the bond upon which this suit is brought, the answer does not show that they did either of these acts.

What defendants mean by saying that Winter and Latimer “ surrendered themselves to the process of the court,” is not very apparent, but there seems to be an effort to get at a defence by implication, which cannot, with truth, be set up in a direct averment. When a defendant appears in person, and answers to any suit against him, he may in one sense be said to surrender himself to the process of the court; but non constat that he is “ in custody,” for in a majority of civil cases there is no power to hold a defendant “ in custody.” When the goods and chattels of Winter and Latimer were seized under the writ of attachment, they were “ in custody” of the sheriff, but Winter and Latimer might have taken the place of their goods, and then they would have been “ in custody” as the statute contemplates ; but if they did not thus substitute .themselves..instead of their property, then they “ elected to have their property attached remain in custody.”

Defendants’ answer does not show that Winter and Latimer took the place of their goods “ in custody,” or that they did any thing more than personally to appear in court and answer to the suit, and therefore fails to show that Winter and Latimer’s goods were released from the attachment, or that defendants’ obligation in the forthcoming bond was discharged.

Nothing appearing in the answer to bar, or in any way affect plaintiff’s right of recovery, the motion to strike out must be sustained.

Motion granted.