Opinion
05-06-1803
Barnett v. Darnielle
Randolph, for the appellant. Wickham, contra.
Thomas Barnett obtained an attachment from a Magistrate of Frederick county, against the estate of Darnielle as an absconding debtor. The warrant is as follows: " Whereas, Thomas Barnett, of the City of Richmond, hath this day complained before me, Robert Macky, one of the Commonwealth's Justices for the said county, that Isaac Darnielle, late of the City of Richmond, is indebted to him, the sum of 130. current money of Virginia, and that the said Isaac Darnielle hath privately removed himself out of the said City of Richmond, and county of Henrico, or so absconds, that the ordinary process of law cannot be served upon him. These are therefore, & c."
The County Court gave judgment for the plaintiff, and the defendant obtained a writ of supersedeas thereto from the District Court; where the judgment was reversed, the Court being of opinion, that the attachment ought to have issued from the county of Henrico: From which judgment of reversal, Barnett appealed to this Court.
Judgment affirmed.
Randolph, for the appellant.
It is not necessary, that the attachment should issue from the county in which the debtor resided. The law provides for two cases; that is to say, the one for small debts, in which the attachment is to go from the county of his residence, the other for large demands, in which cases, the law plainly gives jurisdiction to the Justices of any county, where the debtor's property is found.
Wickham, contra.
According to that construction, the law would become an instrument of oppression. The act speaks expressly of the county, meaning the debtor's residence, and never could be intended to embrace a case like this, where the debtor was a resident of Henrico, and the attachment was issued in Frederick, where it does not appear the debtor ever was.
Randolph, in reply.
Whenever the debtor absconds and conceals himself, that circumstance alone gives jurisdiction to the Justices of any county where his property may be found; which is proved by the words, to attach the effects wherever to be found; as only the Magistrates of the county, where the goods are, can issue the attachment. For, the absconding and concealing himself is the evil, and the summary process of the attachment, is to secure the effects before they can be secreted and carried off. Nor is there any inconvenience in this; because, if in truth, he were not absconding and concealing himself, he might prove it at the trial.
Cur. adv. vult.
Roane, Judge. Fleming, Judge. Carrington, Judge. Lyons, Judge, concurred.
OPINION
ROANE, Judge.
There is nothing in the complaint stated in the attachment in this case, shewing that Darnielle is removing out of, or even through the county of Frederick, that he absconds in that county, nor is there even an allegation that he was ever in that county. The most that is said is, that he hath removed from Henrico, or so absconds, that process cannot be served, & c. This removal from Henrico, does not necessarily imply a removal into, or through Frederick; and the absconding upon record, may relate to the county of Henrico, or, if repelled as if relative to that county by the description, I, Darnielle, late of the county of Henrico, yet, in that case, it only relates to some county other than Henrico, and does not necessarily relate to Frederick. Admitting then for the present, which however is not necessarily to be now decided, that an attachment could legally issue from Frederick, against the defendant moving through that county, or there absconding, having left his late residence in another county, yet, in that view, this attachment is insufficient, as the complainant does not state either of those cases. Upon the case before us, a Justice of any county, where effects may be found, can as well grant an attachment, as a Justice of Frederick. Although sufficient facts may exist, in the view of the law now supposed to sustain the attachment, yet they do not appear; and the maxim de non apparentibus, et de non existentibus, eadem est lex, holds a fortiori in a case of summary proceedings.
I think, therefore, that the judgment of the District Court is correct.
FLEMING, Judge.
The act of Assembly, being an innovation upon the common law, is to be construed strictly; of course, unless the plaintiff can bring himself within the words, or the obvious intention of the Legislature, he has no claim to redress, by this mode of proceeding. The warrant of attachment does not state the defendant to be removing from, or absconding in the county of Frederick; but describing him as late of the City of Richmond, says, that he has privately removed from the latter place, or so absconds, that the ordinary process of law, cannot be served upon him, without alleging where he absconds; so that it does not appear, that he ever was within the jurisdiction of the County Court of Frederick. But the law does not authorize a Magistrate of one county, to issue an attachment against a debtor absconding from another; for, it evidently contemplates his removal, or absconding from the place of his residence. It is said, however, to be the practice to issue attachments in this manner. In answer to which I observe, in the first place, that I am not satisfied that the practice is so: But, if I were, still that could not justify an abuse of the law; which plainly limits it to the place of residence. I am, therefore, for affirming the judgment of the District Court.
CARRINGTON, Judge.
The attachment is a violent remedy, given against men in distress, and who have generally no friend to bail them, or means of defending themselves. Hence, no process is more subject to abuse; and therefore, humanity as well as policy, dictates, that the law should be strictly pursued in obtaining it; and, that the plaintiff should not be allowed, by means of it, to oppress an unfortunate, or unprotected adversary. In the present case, the attachment is not supported by the statute: It states, that Darnielle had privately removed himself from the City of Richmond, without shewing that he had ever been a resident of Frederick; or that he was there absconding, and concealing himself, or had even passed through that county: Of course, if he was subject to the attachment at all, it ought to have issued from Richmond or Henrico, and not from Frederick; because there is nothing stated in the proceedings, to give jurisdiction to the Court of the latter county. I think, therefore, that the judgment of the District Court ought to be affirmed.
CONCUR
LYONS, Judge.
Concurred that the judgment of the District Court should be affirmed.