Knight Co. v. Richmond Carr

By the Court

(Greene, G. J. and Braxton, J.) By the 39th section of “ An act to regulate the election of civil officers,” it is provided that “all persons entitled to vote shall be protected from arrest in civil cases on the days of election for the choice of city or town officers, and the election for State officers, representatives to Congress, or the electors of President and Yice President of the United States; and on the day preceding and the day following such election.” By the third section of “An act prescribing the forms of writs and the manner of serving them,” it is made the duty of the officer to whom a writ of arrest is delivered for service, to use his best endeavors to arrest the body of the defendant, but if such officer cannot find the body of the defendant within his precinct he is directed to attach his goods and chattels: The right to attach the goods and chattels of the debtor is contingent upon the sheriff’s not finding the body after diligent search, and presupposes that the body can be arrested, if found. It is the right of the creditor to arrest the body of the debtor, if found, and it is the loss of this remedy, in consequence of the inability of the sheriff to find the body, that gives the creditor the right to attach the goods of the debtor. The search for the body of the debtor by the sheriff is for the purpose of arresting him, and can confer no right when the debtor, if found, could not be arrested. Such a search, if made for the purpose of arresting, would be for an unlawful purpose, and, if not made for such purpose, would be of no avail. This protection to the debtor’s property results from the section of the collection law to which we have adverted. The construction contended for by the plaintiffs’ counsel would make that section of the same effect as if it provided that the goods of the debtor might be attached when his body could not be found, whether the body is liable to arrest or not.