People ex rel. Swan v. Cameron

7 Ill. 468

Opinion

The Opinion of the Court was delivered by

Treat, J.

*

On the 27th day of December, 1845, John Baldwin commenced an action of assumpsit in the Pike Circuit Court against Elisha Swan. On the same day Baldwin filed an affidavit, in which he stated that Swan was indebted to him in the sum of $1250; and as he verily believed, Swan intended to depart from the State, and remove his property therefrom. Baldwin gave the requisite security, and a writ of attachment was issued against the testate of Swan, in aid of the action of assumpsit. To this writ the Sheriff made return, that he had summoned certain persons as garnishees, and levied on certain articles of personal property. On the 30th day of December,, Swan executed a warrant of attorney empowering Hardin & Smith, Esqrs., to enter his appearance in both of the actions and defend them. Hardin & Smith, in pursuance of this authority, filed in the clerk’s office a written appearance and plea in each of the cases. At the same time, Swan with three other persons as his securities executed a bond to the Sheriff, in the penalty of $2500, with a condition in the form prescribed in the third section of chapter fourteen of the Revised Statutes. This bond was tendered to the sheriff in discharge of the attachment. He admitted the securities to be good, but refused to accept it.

On this state of facts, Swan now moved the Court for a mandamus commanding the sheriff to receive the bond, and restore the property attached. Both parties have appeared and discussed the merits of the application. We are to determine it, as if the motion was for a peremptory mandamus. In deciding this question, an interpretation must be given to some of the provisions of the ninth chapter of the Revised Statutes. The chief object of this chapter is, in certain specified cases, to place the estate of the debtor under the immediate control of the law, and subject it to the payment of his debts. By the service of the writ, the plaintiff acquires a qualified lien on the estate attached, for. the satisfaction of his particular debt, which may become perfect when the debt is merged in a judgment. Where personal property is attached, the possession is transferred to the sheriff. The ninth section allows the defendant to retain the possession until judgment, on his giving security that the property shall then be forth coming. This section only relates to the possession.

The lien of attachment, as between the parties, at least, still subsists. The sheriff may retake the property on a breach of the condition of the bond. The suit still progresses as a proceeding in rem. Under the twenty ninth section, the defendant may divest the lien and dissolve the attachment, by giving security for the payment of whatever judgment may be recovered by the plaintiff, within ninety days after its rendition. When this security is given, the case ceases to be a proceeding against the estate. The property is restored, and the garnishees discharged. The suit then proceeds as if originally commenced by summons. The giving of the bond is regarded as an appearance. These are the only bonds authorized by this chapter to be given to the defendant. By the one, he retains the possession of the property till judgment; by the other, he releases it entirely from the control of the attachment.

The bond allowed by the ninth section is to be made payable to the sheriff, who is to approve of the security. The bond authorized by the twenty ninth section may be entered into in vacation. If so, it is to be made payable to the sheriff, and the security is to be approved by him. If made in term time, it is payable directly to the plaintiff, and the Court is to approve of the security. The bond tendered in this case is not a compliance with the provisions of either of these sections. The condition is altogether different.

The fourteenth and twenty second sections of the chapter have been referred to, as showing that the defendant may bring himself within the operation of the general law respecting bail. In our opinion, these sections only refer to other provisions of the same chapter, and do not contemplate the release of the estate'attached by any other mode than the one prescribed in the twenty ninth section. By this mode, the defendant is required to give security for the absolute payment of the debt, in order to discharge the attachment; and we can hardly suppose that the legislature intended that he might accomplish the same purpose by merely giving security for the surrender of his person. It was also insisted, that the provisions of the chapter, under which the bond was given, are broad enough to embrace proceedings by attachment. We cannot acquiesce in such a construction. That chapter is solely applicable to cases in which a capias ad respondendum issues in the first instance. It has no relation to proceedings in rem.

The application is denied, with costs against the relator.

Motion denied.

Wilson, C. J. did not sit in this case.