M'Dermot v. Butler

10 N.J.L. 187

• Court: Supreme Court of New Jersey
• Decided: September 15, 1828
• Status: Published

Opinion

Ch. Justice.

It is a clear principle, that to justify the issuing of an attachment, an order of the court must be made. Was there then any order authorizing this writ? By recurring to the minutes, we find an order directing a writ to issue, returnable to September term, 1827. The writ before us is returnable, not to September term, 1827, but to May term, 1828, and is not therefore within the terms of the orders.

Why the application was made for a writ, returnable at a specified time, when it might as well have been for an attachment generally, without designating any term, we know not, but so the party thought fit to ask for, and enter the order. Suppose no writ had been issued until May term, 1828, the writ then returned would not have been authorized by the rule. The case is not altered, because a writ was returned to September term, and was then quashed. The argument from the decision, in 2 Halst. 170, is very strong to shew that the rule taken in May term was not sufficient to authorize the issuing of this writ.

Writ quashed.