Ringo, C. J.,
delivered the opinion of the court:
The motion is so framed as to present three distinct propositions, upon either of which the plaintiffs in error insist the writought to have been quashed and the suit dismissed. These will be considered and disposed of, in the order in which they appear in the motion. The first objection rests upon the supposition that the affidavit upon which a writ of attachment is issued by a justice of the peace must disclose or set forth the place of residence of the defendants, and show that they have resided or do then reside in the same county as the justice who issues the writ. This question was settled in the case of Jones, et al., vs. Buzzard, et al. 2 Ark's, in which this court held that the proceeding by attachment, under the 29th section of the law in Steele & McCampbell’s Digest, under the head of “Attachments,” page 88, being the same as the 6th section of an act of the late Territory of Arkansas, approved October 24th, 1820, by virtue of which, the writ in this case was issued, is not restricted to the county where the defendant resides at the time of suing out the writ, or has resided at any time prior thereto; and further, that such proceeding may be instituted in any county where property or effects of the debtor may be found, upon such affidavit as is required by said statute being made and filed as required by law, notwithstanding the debtor or defendant may never have been a resident of this State; and we are not disposed- to question the propriety of that opinion, or the reasoning upon which it is based, as the view there taken is, as we conceive, substantially correct. Be this, however, as it may, there is another view of the question, which appears to us equally decisive of the first objection specified in the motion. For, if it should be conceded that the writ can only be issued by some justice of the peace of the county where the defendant resides, or has resided, yet there is nothing in the statute requiring any thing respecting the residence of either party to be stated or shown by the affidavit; and therefore, as the plaintiff is not bound to show this fact by affidavit or otherwise, upon his application of the writ, the omission cannot constitute such an irregularity or defect in the proceeding as can be taken advantage of by the motion; because, notwithstanding it might be good defence in abatement of the writ, yet, as the law does not oblige the plaintiff to show it, the defendants, if they would avail themselves of it, must do so by pleading the fact in abatement of the writ, within such time and in such manner as is prescribed by law, so that an issue may be formed, and the fact tried by a jury, unless the parties consent to a different form of trial; and this, we apprehend, is the only mode by which the fact could be regularly put in issue and determined. We are not prepared to sanction a practice by which matters regularly pleadable in abatement, and only calculated to delay the final adjudication upon the merits of the controversy, may be introduced into judicial proceedings by motion simply without affidavit or respect to lime, form, or ord er, and determined without the certainty of an adjudication upon demurrer, or the liberty of a trial by jury, which, if it is not contrary to, is certainly not in terms warranted by, law, while it appears to us opposed to all the rules of pleading and practice, as laid down in the most approved treatises on these subjects. And therefore, we are of the opinion, upon every view which we have been enabled to take of the question, that the court did not err in refusing the motion on the first ground. The second objection may be disposed of without any other remark than this, that from the view which we take of the case, it is clearly not a legal ground for quashing the writ, under any circumstances, although under some circumstances, not shown in this case, a failure to file a declaration might be made the ground of a non-suit, or perhaps as the law now stands, of a plea in abatement. The third objection is based upon the assumption that the issuing of a writ of attachment is a judicial act, or an act done in the exercise of judicial power; and if this conclusion be correct, the writ must be void, because the sum in controversy, as shown by the writ itself, is not within the jurisdiction of a justice of the peace. The only question, therefore, presented by this objection is, whether the issuing of such a writ is, or is not, a judicial act, embraced within the meaning of the terms “judicial power,” as used in the constitution in reference to the distribution of the judicial power among the judicial tribunals, and prescribing to each the exercise of a certain portion of such power. In discussing the question as to what shall be considered a judicial act, the Supreme Court of New-York, in the case of Tompkins vs. Sands, 2 Wend. 466, uses the following language: “It may sometimes be difficult to determine whether an act is judicial or ministerial. A justice of the peace performs acts of both kinds, and which are clearly distinguishable. He issues process in the first instance, and in so doing he acts ministerially, his judgment is not at all exercised.
When the parties appear before him and the cause is heard, he renders judgment. He then acts judicially. After judgment, he issues execution. He then again acts ministerially. And in the case of Yates vs. Lansing, 5 J. R., 282, Chief Justice Kent, in delivering the opinion of the same court, states that the allowance of a writ of habeas corpus, in vacation, is a ministerial act. The statute imposes a penalty on the Chancellor and Judges for refusing to allow the writ, when properly applied for, in vacation. Such application may be denied or granted, at their discretion, in term, because there they act judicially. But when they act ministerially, they are liable to the penalty for a refusal; in this instance, it would seem that the same act may, at one time, be judicial, and at another ministerial. And, in ihc case of Tompkins vs. Sands, cited above, it was held that a justice of the peace “in approving or refusing to approve an appeal bond, does not act judicially,” for although he does indeed exercise his discretion, it is the came discretion exercised by every ministerial officer who lakes bail. So, in issuing a writ of attachment; the officer, whether a justice of the peace or clerk of the circuit court, must necessarily exercise his discretion so far as to see that the plaintiff has clone what the law enjoins upon him io do, before he is entitled to the writ; or,in other words, if the writ is issued by a justice, he must see fluff the plninfíííhas filed such bond and affidavit as the law requires-But this discretion is such only as every officer is bound to exercise when he issues any writ or performs any other official duty, the proper execution of which depends upon his learning, skill, and judgment. But it must be apparent to all, that this discretion is, not only in its nature, but in its consequences, essentially different from the jurisdiction or judicial power, the exercise of which is conlided by the constitution to the courts and justices of the peace.
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Ringo, C. J.,
delivered the opinion of the court:
The motion is so framed as to present three distinct propositions, upon either of which the plaintiffs in error insist the writought to have been quashed and the suit dismissed. These will be considered and disposed of, in the order in which they appear in the motion. The first objection rests upon the supposition that the affidavit upon which a writ of attachment is issued by a justice of the peace must disclose or set forth the place of residence of the defendants, and show that they have resided or do then reside in the same county as the justice who issues the writ. This question was settled in the case of Jones, et al., vs. Buzzard, et al. 2 Ark's, in which this court held that the proceeding by attachment, under the 29th section of the law in Steele & McCampbell’s Digest, under the head of “Attachments,” page 88, being the same as the 6th section of an act of the late Territory of Arkansas, approved October 24th, 1820, by virtue of which, the writ in this case was issued, is not restricted to the county where the defendant resides at the time of suing out the writ, or has resided at any time prior thereto; and further, that such proceeding may be instituted in any county where property or effects of the debtor may be found, upon such affidavit as is required by said statute being made and filed as required by law, notwithstanding the debtor or defendant may never have been a resident of this State; and we are not disposed- to question the propriety of that opinion, or the reasoning upon which it is based, as the view there taken is, as we conceive, substantially correct. Be this, however, as it may, there is another view of the question, which appears to us equally decisive of the first objection specified in the motion. For, if it should be conceded that the writ can only be issued by some justice of the peace of the county where the defendant resides, or has resided, yet there is nothing in the statute requiring any thing respecting the residence of either party to be stated or shown by the affidavit; and therefore, as the plaintiff is not bound to show this fact by affidavit or otherwise, upon his application of the writ, the omission cannot constitute such an irregularity or defect in the proceeding as can be taken advantage of by the motion; because, notwithstanding it might be good defence in abatement of the writ, yet, as the law does not oblige the plaintiff to show it, the defendants, if they would avail themselves of it, must do so by pleading the fact in abatement of the writ, within such time and in such manner as is prescribed by law, so that an issue may be formed, and the fact tried by a jury, unless the parties consent to a different form of trial; and this, we apprehend, is the only mode by which the fact could be regularly put in issue and determined. We are not prepared to sanction a practice by which matters regularly pleadable in abatement, and only calculated to delay the final adjudication upon the merits of the controversy, may be introduced into judicial proceedings by motion simply without affidavit or respect to lime, form, or ord er, and determined without the certainty of an adjudication upon demurrer, or the liberty of a trial by jury, which, if it is not contrary to, is certainly not in terms warranted by, law, while it appears to us opposed to all the rules of pleading and practice, as laid down in the most approved treatises on these subjects. And therefore, we are of the opinion, upon every view which we have been enabled to take of the question, that the court did not err in refusing the motion on the first ground. The second objection may be disposed of without any other remark than this, that from the view which we take of the case, it is clearly not a legal ground for quashing the writ, under any circumstances, although under some circumstances, not shown in this case, a failure to file a declaration might be made the ground of a non-suit, or perhaps as the law now stands, of a plea in abatement. The third objection is based upon the assumption that the issuing of a writ of attachment is a judicial act, or an act done in the exercise of judicial power; and if this conclusion be correct, the writ must be void, because the sum in controversy, as shown by the writ itself, is not within the jurisdiction of a justice of the peace. The only question, therefore, presented by this objection is, whether the issuing of such a writ is, or is not, a judicial act, embraced within the meaning of the terms “judicial power,” as used in the constitution in reference to the distribution of the judicial power among the judicial tribunals, and prescribing to each the exercise of a certain portion of such power. In discussing the question as to what shall be considered a judicial act, the Supreme Court of New-York, in the case of Tompkins vs. Sands, 2 Wend. 466, uses the following language: “It may sometimes be difficult to determine whether an act is judicial or ministerial. A justice of the peace performs acts of both kinds, and which are clearly distinguishable. He issues process in the first instance, and in so doing he acts ministerially, his judgment is not at all exercised.
When the parties appear before him and the cause is heard, he renders judgment. He then acts judicially. After judgment, he issues execution. He then again acts ministerially. And in the case of Yates vs. Lansing, 5 J. R., 282, Chief Justice Kent, in delivering the opinion of the same court, states that the allowance of a writ of habeas corpus, in vacation, is a ministerial act. The statute imposes a penalty on the Chancellor and Judges for refusing to allow the writ, when properly applied for, in vacation. Such application may be denied or granted, at their discretion, in term, because there they act judicially. But when they act ministerially, they are liable to the penalty for a refusal; in this instance, it would seem that the same act may, at one time, be judicial, and at another ministerial. And, in ihc case of Tompkins vs. Sands, cited above, it was held that a justice of the peace “in approving or refusing to approve an appeal bond, does not act judicially,” for although he does indeed exercise his discretion, it is the came discretion exercised by every ministerial officer who lakes bail. So, in issuing a writ of attachment; the officer, whether a justice of the peace or clerk of the circuit court, must necessarily exercise his discretion so far as to see that the plaintiff has clone what the law enjoins upon him io do, before he is entitled to the writ; or,in other words, if the writ is issued by a justice, he must see fluff the plninfíííhas filed such bond and affidavit as the law requires-But this discretion is such only as every officer is bound to exercise when he issues any writ or performs any other official duty, the proper execution of which depends upon his learning, skill, and judgment. But it must be apparent to all, that this discretion is, not only in its nature, but in its consequences, essentially different from the jurisdiction or judicial power, the exercise of which is conlided by the constitution to the courts and justices of the peace. The former neither determines the right,nor concludes the parties in any way as regards tho matter in controversy, but serves and operates simply as an auxiliary, in biinging the parties and matter in litigation into and before the tribunal clothed with jurisdiction; while the latter, exercising the judicial power vested in it by the constitution, distributes judgment, by legal trial and determination of the controversy between the parties, and so concludes them as to the matter adjudicated and determined; and it is the power to exercise acts of this latter description, and those only which are attended with this legal consequence, that is limited by the constitution to the courts and justices of the peace. This must at least be the general rule; and so far as regards tho question of jurisdiction, it appears to admit of few if any exceptions, in civil as contra-distinguished from criminal cases; and in regard to the latter, there can be no exceptions, except such as arc expressly made and warranted by tho constitution itself. And, therefore, after the most mature and careful consideration of the question, we entertain the opinion that the issuing of a writ of attachment is not a judicial act, or such an exercise of jurisdiction over the controversy or matter in litigation, as is required by the constitution to be exercised by the courts and justices of the peace. But here another question arises, of as much importance as the one just decided: that is, whether, under the constitution of this State, any writ can be issued out of and returnable to any court of record, by any officer or person other than the clerk of the court out of which it issues, and to which it is returnable. The 14th section of the 6th article of the constitution ordains, that “all writs and other process shall run in the name of the State of Arkansas, and bear teste and be signed by the clerks of the respective courts out of which they issue.” This, considered, as it must be, in connection with the gene» ral organization of the judiciary department, including a3 it does the office of Clerk of the Circuit Court, conveys the idea distinctly, that the writs and process of each court, without regard to the time when they are issued, shall bear teste and be signed by the clerk of the court from which they issue, and to which, according to the obvious design of the constitution, they must be returned; and notwithstanding the language used is affirmative only, we think the negative is as strongly implied as if negative terms had also been used; and this is a proposition which, upon a fair and full view of the whole organization of the judiciary department, appears to us too plain to admit of serious doubt or grave controversy. And, therefore, so much of the statute passed in 1820, before cited, as purports to authorize a justice of the peace to issue writs of attachment, returnable to the Circuit Court, is in conflict with, and repugnant to, the 14th section of the 6th article of the constitution, above quoted, and therefore void, upon and since the adoption of the constitution; and for this reason, the writ of attachment in this case, issued by a justice of the peace, cannot be regarded as sufficient, and no valid judgment could be given against the plaintiffs in error, notwithstanding their failure to appear, as neither the writ, nor the notice subsequently published, imposed upon them any legal obligation to respond in court to the demand so exhibited against them; and, upon this ground, the Court erred in giving judgment against them by default. The judgment is reversed, under the common appearance rule.