#### HUMPHREY *v.*WOOD, ET AL.

Error — attachments—certifying up attachment from justices — only in case of absconding debt' ors — distinct entries.

Where a debtor absconds, or is not a resident of the county, an attachment may issue, and if it be returned that the debtor has *no*goods, ornot *sufficient,*thejustice may certify his proceedings to the Common Pleas, and an attachment shall issue on the transcript there, ¿c.

The entry of a certified attachment as an appeal, and then proceeding to advertise and to judgment as upon an attachment, is erroneous. An attachment before a justice cannot be certified except against *absconding debtors.*-

The proceedings in attachment are ex parte, and the statute must be strictly followed, or the proceedings will be reversed.

The assessment of damages should appear distinctly in the entry, and be the basis of the judgment.

If the entries are indistinct and so uncertain as not distinctly to warrant the verdict, it is error.

Error to the Common Pleas. Wood made oath before a justice, that Humphrey was justly indebted to him an amount, under $.100, and that he was not a resident of the county. On this, a writ of attachment issued, which was returned, attached four cords of wood. Wood declared for work and labor. Another Mr. Wood then filed his claim before the justice *Hn due form, of*law’ for more than $100. The justice made out a transcript from his docket, certifying these facts, which was filed in the Common Pleas *as an appeal.*Notice -was given by publication in- the Gazette. After the third default, the court assessed the plaintiff’s damages at $5 75, and gave him judgment for that sum with costs. The other Mr. Wood declared on a special contract, by which he sold one hundred and sixty acres of land in Athens county to Humphrey, to be paid for in wood in Cincinnati. As to this claim, succeeding the third default, is the following entry: ‘Whereupon it is, upon inquiry by the court, *con*sidered, that the plaintiff recover $575 damages and,$13 12 costs.’

*567To reverse these judgments, Humphrey has procured a writ of error, given bond to, and served citation on, both of the Woods’s, who appear. The record returned, is an entire one, presenting the case as above.

*King*and Walker, for the plaintiff in error,

made the following points, to wit:

1. That there was no notice given under the justice’s act.

2. That there was none under the general law.

3. That there was no finding by the court or jury on which to render'judgment.

4. The general errors.

*Morris*and Drake, contra.

Wright, J.

The law regulating writs of attachment before justices of the peace (29 *O. L.*203) provides for issuing the writ upon oath ‘that the debtor *absconds*to the injury of his creditor,’ or ‘is not a resident of the county,’ which the constable is to execute where he can fmd property in the presence of at least two credible witnesses, and with the assistance of two freeholders under oath, inventory the goods attached, have them appraised, and the appraisement signed by them and the constable returned with the writ, &c. It requires the constable to return the time and manner of service, and declares that where a writ is so served, it shall bind the *property*attached.

The twenty-second section of the act (p. 208) provides, that if on the return of the attachment against an *absconding*debtor, it shall be made appear to the justice there were *no goods to attach,*or *not sufficient,*the justice shall certify the proceedings to the next Court of Common Pleas, whereupon an attachment shall be issued by the court and be executed by the plaintiff, on the *lands of the defendant*in the county, and the proceedings thereon shall *thenceforth*be as if the attachment had been originally commenced in the Court of Common Pleas.

The original attachment in this case was not against an *absconding debtor,*though it is probable, the parties supposed they were pursuing the last clause of the act referred to. The writ was not served in the presence of two witnesses, nor was there an inventory and appraisement returned according to the law. These proceedings are ex parte and in rena the statute must be strictly pursued, or no right is acquired under it. If, then, it appeared, that the property attached, was *insufficient,*the transcript was entered as an *appeal*which was without authority. The case was not one *568to be certified up, because it was not against an absconding debtor; but if it could have been certified, no attachment was issued in the Common Pleas as required by law in such cases. The *appeal*was entered at March term, and *no default*was then taken. The three defaults were entered before judgment, but at subsequent terms. On the third default, the court assessed the original plaintiff’s damages and gave him judgment. As to the other creditor, the inquiry of damages, if any, is so mingled up with the judgment that it is difficult to see whether the damages were assessed and the judgment thereon rendered, or not.

The record is full of errors — and the judgments are reversed. The whole proceedings since their removal from the justice are void, and before the justice there was ho judgment.