Garnet v. Wimp

42 Ky. 360, 3 B. Mon. 360, 1843 Ky. LEXIS 25

Opinion

Chief Justice Ewing

delivered the opinion of the Court.

Though an attachment issuing from a Justice, is quash-able for irregularity, if it does not specify upon its face that the complaint required by the statute to be made, was made before the Justice, or if it shall appear that the required bond was not executed, yet the subject matter being within the jurisdiction of the Justice, it is not void for either of these omissions, but voidable only, and not being void, it affords protection, against trespass viet arniis, to the officer who levies it, as well as to the- party who sues it out, if not causelessly sued out, as was in principle settled by the Court in the case of Owens vs Starr, (2 Littell, 230,) and Banta vs Reynolds and Kendall, decided at the last fall term, (3 B. Monroe, 80.) The remedy of the defendant in the attachment, if he has been injured, is in case.

Judgment affirmed, with costs.