Tiernans v. Schley ( 1830 )

BROOKE, P.,

delivered the opinion of the court. The only question in this case, which it is necessary to decide, is, Whether the appearance of the absent defendant Simmerman, and the filing of his answer without giving security to perform the decree, at the instance and on the motion of the plaintiffs, was not a discharge of their attachment on the land in controversy? This question will be more satisfactorily settled by reference to the statutes on the same subject, preceding the revised statute of 1819, under which the attachment issued. By the act of 1744, ch. 1, 5 Hen. stat. at large, p. 220, the absent defendant was permitted to appear, plead or file his answer as the case might be, without giving security to perform the decree; after which the proceedings against him were in the ordinary course of the court; and *the object of the act being only to compel him to appear and defend the suit, the attachment as to the property was thereby discharged. It was by the act of October 1777, ch. 15, 9 Id. p. 396, establishing the high court of chancery (which incorporated, substantially, the above mentioned act of 1744, and transferred the jurisdiction to that court) that security was first required of the absent defendant, when he appeared and defended the suit. That provision is re-enacted in the revised statute of 1819. If the defendant Simmerman had given the security required by it, there can be no doubt the attached property would have been discharged ; and the plaintiffs having dispensed with that security, can be in no better condition than if it had been given,

The decree is, therefore, reversed, and the bill dismissed as to the appellants, with costs.