[154]*154The opinion of the court was delivered by
Beasley, Chief Justice.
This is a case for the advisory opinion of this court.
The statement of facts shows that the plaintiffs caused a writ of foreign attachment to be issued against the defendant, who, giving the statutory bond, entered an appearance; that, thereupon, the plaintiffs filed a declaration, which, in the-commencement, recited that the attachment had gone against the defendant, Webster. Treat, but, in the body of it, set up that the defendant, together with five other persons, was-indebted to the plaintiffs, in a certain sum of money, for goods sold and delivered. This declaration was demurred to,, and it is stated that judgment for the defendant was given on this demurrer by consent, with leave to the plaintiffs to declare anew on the payment of costs. It should have appeared in this pleading that the persons who were thus named as joint creditors with the plaintiffs, were, at the time of the issuing of the writ, non-residents, but, from the subsequent proceedings in the case, it is to be inferred that the error that both parties thought existed in this pleading, was> that it laid a joint cause of action against several, in a suit in which there was but a single defendant on the record, and this, I think, is the fundamental mistake which has led to bad pleading on both sides.
By the course of the common law, it was an error if there was any variance between the writ and declaration with respect to the parties to the action; but this is not a procedure under that system, but, on the contrary, is altogether the creature of the statute with respect to its origin and regulation ; consequently, the only pertinent inquiry is, what does the act relating to attachments say upon this subject ? In the sixth section of that law, the answer to this question is given in these words, viz.: “ That when two or more are jointly bound or indebted, either as joint obligors, partners, or otherwise, the writ of attachment may be issued against the separate or joint estate, or both, of such joint debtors, or any of them, either by his or' their proper name or names,. [155]*155or by the name or style of the partnership, or by whatever ■other name or names such joint debtors shall be generally known and distinguished in this, state, or against the heirs, ■executors or administrators of them, or any of them; and the estate so attached, whether it be separate or joint, shall be liable to be sold or assigned for the payment of such joint debt.”
This section, as it seems to me, can be road, with regard to the particular under examination, in but a single sense—that is, that in case of a joint debt, the attachment may be issued against any one of such joint debtors. Neither the language nor the regulations established by the clause, will bear any other interpretation. The subject matter of the whole section is a direction how to proceed in the case “ where two or more are jointly bound or indebted,” and the expression, referring fo the “joint debtors, or any of them,” that the attachment may be in “ either his or their proper name or names,” cannot be made to mean anything, so far as the singular pronoun is concerned, unless we understand it to authorize the process to be issued against any of the debtors, as well as all of •them. So the authority given to purchase the writ against u the heirs, executors or administrators ” of the joint debtors, ■or any of them, bears conclusive evidence to the same purpose. It can hardly be pretended that it was the intention to authorize a proceeding jointly against the executors of a deceased debtor and the surviving debtors, a combination that would be incongruous, from first to last, in the pleadings, trial, and judgment. Nor is any inconvenience to be apprehended in giving to this section the meaning which its terms .appear to demand. If three persons are the debtors, and the attachment proceeds against one alone, it is the estate of that -one which will be affected, for it is his interest in the property attached that is levied on, and, consequently, such interest alone can be sold.
But this is not a question of first impression. In the case of Curtis v. Hollinshead, 2 Green 402, this section was critically .examined by this court, and the terms were expounded in the [156]*156sense just expressed. In that casé, the court was called upom to answer the inquiry whether an attachment could be- issued, against a non-resident member of a partnership,, the other-members being residents of the state; and, in negativing such right, Chief Justice Hornblower, expressing- the- views-of the court, uses this language, viz.: “ Nor can an attachment issue against a non-resident partner, if the other partners reside here; but if all the partners reside abroad, then,, under the twenty-seventh section (which is the sixth section of the pi’esent law), an attachment may issue against all or any of them, or, if dead, then against their non-resident representatives.”
This, as has been said, I take to be the true reading of this-section; and it will be perceived that its effect is to make several, as well as joint, so far as touches the attachment act,, all contracts which are joint, when all the joint debtors reside-out of this state. The consequence of this view is, that a; declaration is not faulty which shows that an attachment has-been issued against one of several joint debtors,, and also sets-out a joint cause of action, the reason being that thc-proceedingis warranted by the statute in question. By such a course of' pleading, the plaintiffs show that they are pursuing their suit according to the statutory regulation, for the court will, ex-officio, notice, in weighing the declaration, the disjunctive effect of the act on the cause of action. . At the trial, a joint cause of action of necessity would appear, and,, therefore, to* avoid a disagreement between the allegata/ and probata, it would seem proper to allege the real facts in the pleading.. The original declaration in this case appears to have been fashioned on this theory, and, consequently, was correct in form and substance. v
But the plaintiff) submitting to the demurrer,, gave up this declaration, and filed a new one, which suppressed, all allusion .to the joint contract, and laid his cause of action against Treat alone. To this, the defendant pleaded, the non-joinder:of the other defendants, in abatement..
[157]*157It will follow, from the exposition that I have given of the sixth section of the attachment act, that this plea was bad, for, by showing simply, as it did, that by force of this law, the plaintiffs were proceeding against one, alone, of several joint debtors, the defendant did not demonstrate any error. To make the proceeding objectionable, it was necessary to manifest that some of the omitted joint debtors were residents of this state at the time of the inception of the proceeding. But the plaintiffs again yielded to this objection of their adversary, and filed an amended declaration, bringing in the parties who are named as omitted defendants, in the plea in abatement. This course is attempted to be justified by virtue of the thirty-ninth section of the practice act, which authorizes the amendment of the declaration in case the non-joinder of any person, as a co-defendant, is pleaded in abatement.
Whether this clause of the practice act applies, under the circumstances above stated, is the question now propounded to this court for its advisory opinion.
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[154]*154The opinion of the court was delivered by
Beasley, Chief Justice.
This is a case for the advisory opinion of this court.
The statement of facts shows that the plaintiffs caused a writ of foreign attachment to be issued against the defendant, who, giving the statutory bond, entered an appearance; that, thereupon, the plaintiffs filed a declaration, which, in the-commencement, recited that the attachment had gone against the defendant, Webster. Treat, but, in the body of it, set up that the defendant, together with five other persons, was-indebted to the plaintiffs, in a certain sum of money, for goods sold and delivered. This declaration was demurred to,, and it is stated that judgment for the defendant was given on this demurrer by consent, with leave to the plaintiffs to declare anew on the payment of costs. It should have appeared in this pleading that the persons who were thus named as joint creditors with the plaintiffs, were, at the time of the issuing of the writ, non-residents, but, from the subsequent proceedings in the case, it is to be inferred that the error that both parties thought existed in this pleading, was> that it laid a joint cause of action against several, in a suit in which there was but a single defendant on the record, and this, I think, is the fundamental mistake which has led to bad pleading on both sides.
By the course of the common law, it was an error if there was any variance between the writ and declaration with respect to the parties to the action; but this is not a procedure under that system, but, on the contrary, is altogether the creature of the statute with respect to its origin and regulation ; consequently, the only pertinent inquiry is, what does the act relating to attachments say upon this subject ? In the sixth section of that law, the answer to this question is given in these words, viz.: “ That when two or more are jointly bound or indebted, either as joint obligors, partners, or otherwise, the writ of attachment may be issued against the separate or joint estate, or both, of such joint debtors, or any of them, either by his or' their proper name or names,. [155]*155or by the name or style of the partnership, or by whatever ■other name or names such joint debtors shall be generally known and distinguished in this, state, or against the heirs, ■executors or administrators of them, or any of them; and the estate so attached, whether it be separate or joint, shall be liable to be sold or assigned for the payment of such joint debt.”
This section, as it seems to me, can be road, with regard to the particular under examination, in but a single sense—that is, that in case of a joint debt, the attachment may be issued against any one of such joint debtors. Neither the language nor the regulations established by the clause, will bear any other interpretation. The subject matter of the whole section is a direction how to proceed in the case “ where two or more are jointly bound or indebted,” and the expression, referring fo the “joint debtors, or any of them,” that the attachment may be in “ either his or their proper name or names,” cannot be made to mean anything, so far as the singular pronoun is concerned, unless we understand it to authorize the process to be issued against any of the debtors, as well as all of •them. So the authority given to purchase the writ against u the heirs, executors or administrators ” of the joint debtors, ■or any of them, bears conclusive evidence to the same purpose. It can hardly be pretended that it was the intention to authorize a proceeding jointly against the executors of a deceased debtor and the surviving debtors, a combination that would be incongruous, from first to last, in the pleadings, trial, and judgment. Nor is any inconvenience to be apprehended in giving to this section the meaning which its terms .appear to demand. If three persons are the debtors, and the attachment proceeds against one alone, it is the estate of that -one which will be affected, for it is his interest in the property attached that is levied on, and, consequently, such interest alone can be sold.
But this is not a question of first impression. In the case of Curtis v. Hollinshead, 2 Green 402, this section was critically .examined by this court, and the terms were expounded in the [156]*156sense just expressed. In that casé, the court was called upom to answer the inquiry whether an attachment could be- issued, against a non-resident member of a partnership,, the other-members being residents of the state; and, in negativing such right, Chief Justice Hornblower, expressing- the- views-of the court, uses this language, viz.: “ Nor can an attachment issue against a non-resident partner, if the other partners reside here; but if all the partners reside abroad, then,, under the twenty-seventh section (which is the sixth section of the pi’esent law), an attachment may issue against all or any of them, or, if dead, then against their non-resident representatives.”
This, as has been said, I take to be the true reading of this-section; and it will be perceived that its effect is to make several, as well as joint, so far as touches the attachment act,, all contracts which are joint, when all the joint debtors reside-out of this state. The consequence of this view is, that a; declaration is not faulty which shows that an attachment has-been issued against one of several joint debtors,, and also sets-out a joint cause of action, the reason being that thc-proceedingis warranted by the statute in question. By such a course of' pleading, the plaintiffs show that they are pursuing their suit according to the statutory regulation, for the court will, ex-officio, notice, in weighing the declaration, the disjunctive effect of the act on the cause of action. . At the trial, a joint cause of action of necessity would appear, and,, therefore, to* avoid a disagreement between the allegata/ and probata, it would seem proper to allege the real facts in the pleading.. The original declaration in this case appears to have been fashioned on this theory, and, consequently, was correct in form and substance. v
But the plaintiff) submitting to the demurrer,, gave up this declaration, and filed a new one, which suppressed, all allusion .to the joint contract, and laid his cause of action against Treat alone. To this, the defendant pleaded, the non-joinder:of the other defendants, in abatement..
[157]*157It will follow, from the exposition that I have given of the sixth section of the attachment act, that this plea was bad, for, by showing simply, as it did, that by force of this law, the plaintiffs were proceeding against one, alone, of several joint debtors, the defendant did not demonstrate any error. To make the proceeding objectionable, it was necessary to manifest that some of the omitted joint debtors were residents of this state at the time of the inception of the proceeding. But the plaintiffs again yielded to this objection of their adversary, and filed an amended declaration, bringing in the parties who are named as omitted defendants, in the plea in abatement. This course is attempted to be justified by virtue of the thirty-ninth section of the practice act, which authorizes the amendment of the declaration in case the non-joinder of any person, as a co-defendant, is pleaded in abatement.
Whether this clause of the practice act applies, under the circumstances above stated, is the question now propounded to this court for its advisory opinion.
My conclusion is, that this statutory provision has no relation to a proceeding begun under the attachment act. The language of the section; in terms, repels such a construction. It says, “ in any action on contract, commenced by summons, where the non-joinder,” &c., and thus is made to embrace, very plainly, but a single class of eases. It would be an act of legislation, and not of interpretation, for the court to extend it to other classes of cases. It does not comprehend a suit commenced by a capias; why, then, is it to be said that it takes in a proceeding taking its rise in the process of attachment? I find nothing in tire attachment law favoring the view that this section of the practice act should be applied to it. When defendants are joined to the suit under this section, they become parties to the suit, and' judgment will pass against them personally, if the plaintiff is successful; but there is no such result as this indicated as a legislative purpose, in the provisions of the law authorizing suits against non-resident debtors. Indeed, all the indications are to the contrary: the writ is to be levied on the estate of the [158]*158■defendant .or defendants, alone, named, in it; the advertisement is to be of a suit between the plaintiff and such party or parties; so the defendants named are to appear, and then give bond, and if the goods are returned, it is only their interest in them that can be sold. These aspects are averse to the idea that new defendants can be joined to the suit during its progress. Nor does the expression in the thirty-eighth section, that after an appearance has been effected, the suit “ shall proceed, in all respects, as if commenced by summons,” convey a different import, the effect of that clause being simply to regulate the order of the proceedings, without in anywise affecting the antecedent steps taken in the cause. One of the prominent features of the attachment act appears to be its contrivances for the purpose of giving notice to the parties interested, of the pendency of the proceeding: it requires a notice of the issuing of the attachment, and against whose estate, to be published in a newspaper, and a copy set up in the clerk’s office; to allow, therefore, the party named as defendant to bring into the proceeding, and .to affect by the result, other persons, not named, and not notified, would seem in contravention of the intent here manifested, to. make known to ajl persons whose property was sought to be affected, that such writ had been sued out. It should require a very plain expression of intention on the part of the framers of this law, to induce the court to conclude that it was designed to allow a non-resident debtor, whose property was attached, to subject, by appearing to the suit, other non-residents to the jurisdiction of the courts of the state, without any apparent assent on their part.
I think the Circuit Court should be advised that the section referred to does not apply to a proceeding commenced by attachment.