JULY TERM, 1856. MANDEL V. PEET. process of law cannot be served on him, as against absent or absconding debtors—the grounds specified in the third section being cumulative of those named in the first. The word "absent" in the first section of the act should not be taken or understood in its literal sense; but as Intended to mean those who bare absconded or are non-residents—mere absence from th e State temporarily, on business or pleasure, not being within the mischief of the act. It is not necessary that the affidavit for an attachment, when made by a person other than the plaintiff, should state that the affiant made tt for the plaintiff An affidavit that the defendant "has been removing part of his goods and effects out of this State, and is about to remove the remainder of his goods and effects out of this State,'.' is sufficient under the statute of attachmen A plea in abatement that "it is not stated in the attachment bond filed in the snit, that the Peet, Simms & Co., therein named, are Eleazer Peet, Philip Simms and John Lorathe, the plaintiffs named in the declaration," held frivolous. .So eller), a plea that "it does not appear r237 that the bond tiled in the suit was ever duly approved by the clerk before ihe issuance of tbe wi it of attachment"—the endorsement of approval upon the bond being merely one of the means of proving the fact, and though a duty on the part of the clerk, not essential to the legal rights of the defendant. So also, a plea averriug "that tile bond for costs filed in the suit describes it as an actioil of debt;" but that it is an act ion of debt by attachment. The bond for costs required to he filed by a nonresident, before the institution of his suit, was made payable to the defendant by the given name of Efermant instead of Herniae, his true name; Held. that the variance was not sufficient to abate the suit—the defendant having a legal remedy upon the bond by proper averments and proof. (5 Ark. 236; 14 fd. 627; 6 Ark. 70) Where.the affidavit in an attachment. suit describes the plainiiffs as Peet, Simms & Co., and the writ describes them as Eleazer Peet, phitip Simms and John Lorathe, partners, etc. under the name of Peet, Simms dc C'o., there is no such variance as MANDEL will abate the wr:t. A plea in abatement must exclude every couc41- V. sion against the pleader: and so a plea that the per-PEET, SIMMS & CO. son who signed an att gcbment bond for the plaintiffs, had no competent authority from them to make The defendant In a suit by attachment will not it, is defective, unless it also avers thant he act was be allowed to call in question the truth of the not subsequently adopted and ratiped by the affidavit on which the writ of attachment issued. plain ti ffs. ( Taylor V. Ricards, 9 Ark. 378.) Taylor v. Ricardo, 9 Ark. 378.) It is not necessary that the plainti ffs in an attach-Under the provisions of the statute (ch. 17, Dig.), ment suit should execute tile bond required by the an attachment may be issued as well against a siatute: if a bond, good in form, for a sufficien t defendant, who is a non-reddeut of this State, or amount, and payable to the defendant, be filed and who is ahout to remove out of this State, or who is approved by the clerk, though executed by other about to remove his goods and effects out of this than the plaintiff, it is sufficient. state, or who so secretes himself that the ordinary The power of amendment is within the discretion
MA NDEL V. PEET. VOL. 18 of the court. (9 Ark. 211; 16 Ark. 121.) And so, 3. That it is stated in the affidavit on where the clerk approves and files an attachment bond, but fails to endorse upon the bond his ap• which the attachment issued "that the proval before the issuance of the writ, the court defendant Mandel has been removing may direct him to make such endotsement: And part of his goods aud effects out of this so also, where there is an error in the bond for State, and is about to remove the re-mt., required to be filed by a non-resident before bringing his suit, in the name of the obligee, the mainder of his goods and effects out of court may permit the obligor to amend the bond by this Stato," and avers that there is not in ening the true name of the defendant. a sufficient ground in law for said at-It is error in the circuit court to proceed to ren-tachment to issue. der final judgment until all the issues raised or ten-de, ed in the cause are disposed of. (4 Ark. 527; 5 4. That, "it is nowhere stated in the Id. 197; 14 Id. 621; 9 Ark. 67.) attachment bond" filed in said suit Writ of Error to the Circuit Court of Jef-that the Peet, Simms & Co., therein ferson county. named, are Eleazer Peet, Philip Simms and John Lorathe, the plaintiffs ON. THEODORIC F. SORRELS, named in the declaration. H Circuit Judge. 5. That, "it does not appear that the Bell & Carlton and Johnson, for the attachment bond filed in said suit was plaintiff. ever duly approved of by the clerk of Cummins & Grace, the circuit court of Jefferson county for the defend-before the issuance of the writ of at-ants. tachment in this behalf as required by 238*] .1-1ANI.1r, J. This was debt law." by attachment, brought by Peet, 6. That, "the bond for cost filed in Simms & Co., against the plaintiff in said suit describes said plaintiffs' suit error, in the Jefferson cirouit court, on as an action of debt, and said defend-a promissory note. The declaration is ant avers that said suit is an action of in t he usual form, and is not involved debt by attachment." in the enquiry invited by the assign-7. That "the bond for costs filed ment of errors. The errors assigned in said suit is conditioned to pay relate to the affidavit on which the at-all costs in a certain suit oT tachment issued, the bond for cost filed said plaintiffs against Hermant in the court below, iu consequence of Mandel, instead of Herman [*239 the defendants in error being non-resi-M. Mandel, the true name of said de-dents of this state at the time of the fendant. commencement of the suit, the attach-8. That "it is nowhere stated in the ment bond and the writ itself. At the affidavit tiled in said suit that said de-return term of the writ, Mandel, the fendant is justly indebted tl Eleazer defendant below, appeared by counsel Peet, Philip Simms and John Lorathe, and interposed ten several pleas in merchants and partners in trade, doing abatement to the writ, in substance as business under the firm name and follows : style of Peet, Simms & Co., in the 1. That, at the commencement of the plaintiff's declaration mentioned, in suit, the defendant was neither absent any sum whatever." nor absconding from the State, but was 9. That there is "a variance be-a resident of the county of Jefferson in tween the said affidavit and writ, in this State. this : the affidavit describes the plaint-2. That it is not stated in the affida-iffs as Peet, Simms & Co., whereas, vit filed in the suit that the person who said plaintiffs are described in said suit made it "made the same for the plaint-as Eleazer Peet, Philip Simms and iffs." John Lorathe, merchants and partners,
JULY TERM, 1856. MANDEL V. PEET. etc., under the name and style of Peet, brought error, upon which the cause is Simms & Co." now pending in this court. His assign-10. That the person who signed the ment questions the ruling of the court attachment bond for the plaintiffs had below as follows: no competent authority from them to 1. In sustaining the plaintiff's de-make such an-instrument in their be- murrer to his nine pleas as above. half at the time it was executed. 2. In permitting the clerk to en-These several pleas were properly dorse his approval upon the attach-verified by the affidavit of the defend- ment bond. ant below, Mandel, and were filed on 3. And in permitting the defendants 12th November, 1855. to amend their bond for losts by strik-On the 13th of tbe same month ing out the letter t from the word Her (Ne y 'r, '55), the plaintiffs, Peet, Simms mant. & Co., moved the court in writing for The demurrer of the plaintiffs below a rule against the clerk to enter "his to the several pleas of the defendant, approval of the attachment bond filed being in effect an admission of the in the cause nunc pro tunc," and also, truth of the facts therein stated, will for leave to the "obligor in the cost render it unnecessary for us to state or bond to amend the same by striking set out the different documents to the letter t from the name of Hermant which some of them refer. We will in the said cost bond." This motion assume, therefore, in our present en-was considered and sustained by the quiry, what the law intends in respect court, and the desired amendments to them under the demurrer, that each made accordingly : To which ruling, plea is true in point of fact. With this the defendant Mandel, excepted, and explanation, we will at once proceed to filed his bill embodying these facts. consider the several errors assigned by On the same (lay that the proceed- Mandel in the order in which they are ings lastly stated above were had, the presented. plaintiffs below filed their demurrer to I The first assignment questions the each of the ten pleas in abatement ex- propriety of the ruling of the court be-cept the eighth one, to which they filed low upon the demurrer of the plaint-a replic,tion, specially traversing the iffs Peet, Simms & Co., to the nine said plea, and concluding with a veri- pleas in abatement, interposed by the fication. defendant Mandel. We will, there-. The demurrer to the nine pleas set fore, for the sake of perspicuity, dispose out special causes for each. of this assignment by considering the This demurrer was considered and demurrer as applied to each plea sep-2409 sustained by the court as *to all arately in their order on the record, and the pleas to which it applied. The de- as we have stated them above. fendant, Mandel, declined to answer Erst. The matter of this plea may over upon the demurrer to his pleas be- be considered in two aspects. It may ing sustained, and the court, On the be regarded as an attempt on the part. plaintiffs filing their cause of action, of the pleader to draw in question the proceeded to render judgment in their truth of the affidavit on which the at-favor for the amount thereof with in- tachment was Issued: which, of course, terest and costs, without disposing of is not allowable, either under our statu-the replication to the 8th plea of the tory enactments on the subject, or the defendant, or the issue thereon, if *praetice of the courts founded [*41 there was one, of which the transcript thereon: (The affidavit may be ques-is silent. The defendant Mandel tioned, Mans. Dig., sec. 381.) laylor
MANDEL V. PEET. VOL. 18 v. Ricards, 9 Ark. 378: Or it may be tended for by the plaintiff in error, as viewed as asserting the principle far as we have been able to discover that the attachment law of this aftera strict and careful examination State only authorizes attachments to of all the volumes of our Reports: but issue in ease the debtor is absent or ab-there are a multitude of cases in which sconding. We will consider the plea this court has impliedly held that in this view. Very elaborate and ex-there are other grounds authorizing the tended arguments have been submit-issuance of attachments beside the ted on the part of the plaintiff in error, two specified in the first section, in support of this latter position, which which we have copied above, and that we have considered with much delib-those other grounds are defined and eration and great care, on account of designated in the third section, L*242 the confidence manifested by counsel which we have also copied, and we that their position in this respect think the question thus settled is en-would be found sustained by both the tirely consistent with the general reason and letter of the law. The tenor and scope of the entire chapter, first section of the attachment law and accords with the uniform practice is in these words: "In all cases of that has grown up throughout the absent or absconding debtors, who State upon the subject. We would may have property, real or personal, not feel ourselves authorized to dis-in this State, the creditor may proceed turb the practice of the courts, for a against the same in the following long time acquiesced in, without we manner, to-wit: The second sec-could be convinced that the practice tion directs that the creditor shall itself violated some positive statute, or file in the office of the clerk of the was antagonistic to a known principle circuit court of the county wherein the of the law. We will, however, exam-property may be, his declaration, etc. ine the subject a little farther, with The third section being immediately the view of expressing ourselves with involved in the question directly at more distinctness, and with the hope issue, we will copy. It is as follows: that the grounds of our decision in "The creditor shall, at the time of fil-this cause may not be misunderstood ing the declaration of his elsim, also or misinterrupted. file an affidavit of himself, or some It is true that the proceeding author-other persen for him, stating that the ized under our attachment law is in defendant in the declaration or state-derogation of the course of proceedings ment mentioned is justly indebted to warranted by the common law, and such plaintiff in a sum exceeding one should therefore receive a strict con-hundred dollars, the amount of which struction, and the statutory require-demand shall be stated in such affi-ments be rigidly pursued. Yet, in the davit, and also that the defendant is language of Waker, J., in laylor v. not a resident of this State, or that he Ric-Irds, 9 Ark. 384: "there is a com-is about to remove out of this State, or mon sense view of this and all other that he is about to remove his goods acts, whether in derogation of the com-and effects out of this State, or that he mon law remedies or not, that should so secretes himself that the ordinary not be lost sight of, for it is not unfre-process of law cannot be served upon quent13- the case that courts, by adopt-him." See Digest, sec. 1, 2 and 3, p. ing this familiar and well recognized 172. rule, feel that their sphere of action is There has been no positive adjudica-so circumscribed as to force them into tion consistent with the position con-refined and unmeaning technicalities,
1856. JULY TERM, MANDEL V. PEET. such as defeat every valuable purpose manifestly cumulative as the two pre-of our most important and useful stat-ceding; for, we hold that one "about to utes." It is admitted that there seems, remove his goods and effects out of the upon the first itnpression, to be a dis-State" may yet be present in, or not crepancy between the provisions of the absent, or absconding from the State. first and third sections stated above, in And so, finally, in reference to the tile, that the language of the first sec-fourth and last ground-in the third section would ooly seem to warrant the tion; for one may not be absent or ab-issuance of an attachment in case the sconding from the State, and yet "so debtor was either absent, having ab-secrete himself thal the ordinary process sconded, or was in the act of abscond-of the law cannot be served on him." ing from the State; whilst the third We do not desire to be understood section provides with equal - distinct-that the word "absent" in this section la , ss for other grounds in addition to should be taken or understood in its those named in the first section, au-literal sense, for we will not presume thorizing the issuance of an attach-the Legislature intended any such ap-ment; that is to say: 1. That the plication. What we understand by the debtor is not a resident of this State; 2. word "absent" in this section is, that That he is about to remove out of this the debtor should not only be absent, State; 3. That he is about to rebut that he must have absconded, or move his goods out of the else be a non-resident. Mere absence State; and 4. That he so se-from the State temporarily, on business cretes himself that the ordinary or pleasure, certainly would not fall process of the law cannot be within the mischief of the aot, and con-243'1 *served on him. We have said sequently could not be intended as the four grounds specified in the third having been meant by the Legislature. section are cumulative of those named We have examined the several adjudi-in the first, and the letter of the stat-cations to which we have been referred ute will bear us out in this view. Take, by the counsel for the plaintiff in error, for Pxample, the first ground in the and do not believe they militate third section—that the debtor is not a against the views herein expressed. resident of this State—that is not pro-'We are therefore, forced to the conclu-vided for in the first section, for the sion 'that the demurrer to the r244 rt-ason that a person residing out of the first plea was properly sustained by the &ate may yet be present in it, or in court below. other words not absent from it, and at Second. The matter of this plea we the same time not be absconding (or esteem as altogether frivolous. It is a hiding) during his sojourn in the State. matter of formal consequence whether And so in reference to the second the affidavit does or doea not show ground in the third section: One may whether the person who made it, made be about to remove out of the State. it for the plaintiffs. Whether it is or which, ex vi termini, pre-supposes his is not so stated, it will be so intended, preAence in the State, and consequently for it is not presumed that one in no not absent from it, and at the same wise interested in the suit would wake time, not be in the act of absconding, such au affidavit without it was done for the reason that one about to remove by him as the agent of the party in in-may arrange and prepare to do so pub-terest, or done for him, for accommo-licly and not ia .clandestine manner, dation. A literal compliance with the as is meant-by the word abscond. The 1. On absence from State, see Krone v. Cooper, third ground in-.tlie third section is as 43-552.
MANDEL V. PEET. VOL. 18 requirements of the statute is not ex-evidence may be furnished by other pected or demanded. All that is ex-means. If the plea had denied the fact pected in such case is a substantial com-of its approval, this would have been a pliance with the requirements of the material fact, and the plea would have statute. See Cheadle v. Riddle, 6 Ark. been good if properly framed. Not--R. 483. We hold, theretore, that the withstanding we hold the attachment judgment of the court below on the de-bond good in this instance, we must, murrer to this plea, was proper.' nevertheless, be permitted to deprecate Third. The demurrer to this plea the practice on the part of clerks of was also properly sustained, for the omitting to endorse their approval on reasons we have already expressed in bonds in such case, and take the liberty considering and treating of the demur-. of respectfully recommending to them rer to the first plea, and for the addi-in all such cases to make such endorse-tional reason that we conceive the affi-ments with the view of perpetuating davit substantially states that the de-the evidence of the fact. In view of fendant was about to remove all his the foregoing considerations we hold goods and effects from the State—being that the court below properly sustained a ground provided for the issuance of the demurer of the plaintiffs to the an attachment under the third section, fifth plea of the defendant. as before ruled. The stating that the Sixth. The demurer to this plea was defendant "had removed part" and was unquestionably correctly sustained by proceeding, or "was about to remove the the court below. The objection taken remainder of his goods and effects from to the bond for costs is a refinement this State" we conceive is tantamount taken upon technicality. in advance of to saying that he was about to remove anything of the kind we have ever ob-his goods and effects, etc. The wore reserved, and utterly at war with the lib-mainder used in the affidavit, is as eral practice which is inculcated hy the comprehensive as all his goods, etc., or letter and spirit of our law, which his goods, etc. seems to regard the substance Jather Fourth. This plea we also consider than the shadow, the attainment of frivolous in matter, for the reason that justice rather than its defeat or procras-it will be intended that the persons tination. named in the attachment bond are Seventh. It is true, the statute re-identical with those named in the dec-quires the bonds for costs to be given laration and affidavit. The principle to plaintiff and payable to the defend-settled in Whitlock et al. v. Kirkwood, ant, but the slight variance in the 16 Ark. R. 490, and Ellis v. Cl ossitt et Christian name of the defendant, sug-al.,.14 Ark. R. 222, is decisive of this gested by this plea, would certainly not case. be sufficient to abate the suit. The Fifth. The matter of this plea is bond being filed with, and found considered thoroughlv frivolous, for the among, the papers of t he suit, would reason that the la-v does not require be intended to apply and belong to it. that it should appear on the bond itself, In case it should become necessary to that it was approved by the clerk sue on that bond, the defendant, by 245*] *before he proceeded to issue proper averments in his declaration, the writ of attachment. All that the and proof consistent with those aver-law requires is, that it should be ap-ments, would experience no difficulty proved by the clerk. His endorsement in the courts in obtaining judgment on of his approval is a means of evidence the instrument. See Bower et al. v. of that fact. But we apprehend this State Bank, 5 Ark. R. 236. Nicholay
JULY TERM, 1856. MANDE, V. PEET. et al. v. Kay, 6 Ark. 70. Allis v. Bend- ified bytthe plaintiffs, yet the bond er, 14 Ark. R. 627. would not be rendered invalid. It We hold, therefore, that the - court would be the bond at least of Beaman 24639 below did not err in sus*taining and the securities, if no one else, and the plaintiff's demurrer to the defend- the law thereby complied with. See ant's seventh plea. MeMechan v. iloyt,16 Ark. R. 306. For Ninth. The question involved in the these reasons we hold the demurrer to demurrer to the ninth plea has already this plea properly sustained. been determined in this cause, whilst Having thus dispo'sed of all the ques-we were considering the demurrer to dohs raised by. the first *assign- [*247 the fourth plea. See also Cheadle v. ment, we will at once proceed to con-Riddle, 6 Ark. 483, before cited. As we sider the other assignments. peld in respect to the demurrer to the II. This assignment questions the fourth, so we hold in respect to this-- propriety of the ruling of the court be-th it there is no error in the judgment low in requiring the clerk to endorse of the court below, sustaining it. his approval upon the attachment Tenth. This plea is obnoxious to the bond, after the interposition of the demurrer on two account-, . 1. Because plea in abatement, averring a want of it might be true that Beaman, who such endorsement. We have already, made the attachment bond in the name whilst considering the first assignment, of the pinintiffs, had no competent virtually„Wisposed of this; holding, as authority to do the act at the time, yet we have, that the endorsement of the the act of Beaman might have been approval of the attachment bond by subsequently ratified by the plaintiffs; tbe clerk [was not essential ; that the which would make the deed.as effect- endorsement was only evidence of th ually theirs in law, as though they had approval, or one of the means of evi-given authority to the agent in the first dencing that fact. The order of the instance. The rule in such case is, that court requiring the amendment, and a plea in abatement must exclude the absolute amendment by the clerk every conclusion against the pleader; in the manner suggested did not and therefore, a plea that plaintiff's name could not possibly have affected the de-was signed to the attachment bond by fendant below. But, outside of this one without authority, must negative view, we are of the opinion that the the ratification of the act by the plaint- circuit court had the unquestionable iff's, before the writ issued. See Tay- power to authorize the amendment, lor v. Rich«rds & Hoffman, 9 Ark. 378. and power was exercised under cir-2d. Because the fifth section of our at- cumstances warranted and author-tachment law does not require the ized in law, for the furtherance and bond filed to be the bond of the plaint- attainment of justice. See Hughes v• iffs: If it is properly conditioned, for a Stinnett's adr, 9 Ark. 211. The power sufficient amount, payable to the de- to amend and allow amendments is a fendant, and approved by the clerk, power inherent in the courts. The power the law is complied with. If it was is unlimited with one or two excep-true, as the pleader seems to indicate tions. .Applications to amend are ad-by his plea, that Beaman had author- dressed to the sound discretion of the ity to make the bond in the name of judge, except in the limited instances, the plaintiffs, and if it were true, and and his action upon those applicationa the fact had been averred in addition, is final, not being subject to review by thas the act of Beaman unauthorized an appellate court. See Pennington et in the first instance had not been rat- al. v. Ware & Miller, 16 Ark. R. 121,
VOL. 18 We hold, therefore, there is no error and remand the cause to the Jefferson in respect tc this assignment. circuit court to be proceeded in, etc. • III. We have already held that the Absent, Hon. C. C. Scott. amendment, which the obligor in the Cited : —19-336 ; 21-21; 22-167; 43-553. cost bond was permitted to make by etriking out the letter t from the name of Hermant, was an immaterial amendment, and did not affect the defendant or his rights in the least. The amendment was permitted, to prevent, as was evidently conceived, a technical objection defeating the ends of justice. We hold in respect to this, as we did in reference to the second assignment —that the court below did not err in permitting the amendment. We have thus consecutively disposed 2481 of the three assigements, and have found in them no errors which are material. But by reference to our statement of the case, it will be perceived that the court below proceeded to, and did render final judgment for the plaintiffs without disposing of the eighth plea or the issue formed thereon, If there was one, but of which the transcript is silent. After disposing of the demurrer to the nine pleas in abatement, and after the defendant had declined to answer over as to them, the court below should have proceeded to require the parties to make up an issue on the eighth plea, and then have determined or disposed of that issue, or else have proceeded to dispose of the pleading upon that plea without an issue, by rendering judgment against the party in default by nil dicit, according to the uniform rules of practice in such cases. It was certainly regular for the court to have proceeded with the case to final judgment until all the issues raised or tendered, were determined. See Hicks v. Vann, 4 Ark. 527. Reed v. State Bank, 5 Ark. 197. Hammond v. Freeman, 9 Ark. 67. Yell, Govr. use Conant 1:t Co. v. Outlaw et al. 14 Ark. R. 621 For this error, we shall have to reverse the judgment of the court below, 1. dee Melte v. Vaal), -527. note 2.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.