#### The President and Directors of the State Bank *v.*John Hinton and Samuel C. Brame.

From Franklin.

The attachment laws are to be strictly construed, and the Pliintiff mu-a perfo-m .31 the conditions required, to entitle him tot he benefit of them. Hence be must not only give bond and mate affidavit, but must see that they are returned.

A plea is not bad for duplicity, which alleges several facts dependent upon each other, tending to one point and triable upon one issue. Therefore a plea in abatement to an altachrm nt, averring that a bond and affidavit were not taken or rt turned, is good upon general demurrer. And it seems that an averment, that no bond, &c. were taken and *the said bond Hie. so taken,*were not returned, is equivalent to all averment Hint they were not taken and returned, and that the repugnancy do* s not vitiate.

But tlie Plaintiff having made a Hi lavit and given bond, which the Justice neglected to return, had leave to withdraw bis demurrer and file them *nunc pro tunc.*

This was an original attachment commenced in the County Court, 'flic Defendants filed .special bail and pleaded in abatement as follows :

“And the said *J II.*and *S. C. B-*in their own proper persons, “ come and defend the wrong and injury which, &.o. and pray judg- “ ment of the said original attachment of the said President, &c. Dc- “ caust they say that the Justice o'{ the Peace of tile County, &e. who “ granted the said original attachment, did not before granting the “ same, lo-wit, on or before Sec. lake bond and security of the said *“*President, &c. for whom the said attachment was issued, or-of iheil' “ attorney, or agent, or factor, or any person whatsoever payable to “ them the said *J. II.*and *S. O B.*m double the sum of which com- “ pi lint is made, to-wit, in the sum of, &c. besides interest ike. for “ satisfying all costs which shall be awarded to them, the said *J. II.*“ and *S. C. B.*in case the President, &c, shall be cast in this suit, “and all damages which shall be recovered against the said Presi- “ dent, &c. in any suit or suits w hich may be brought against them “ for wrongfully suing out the said attachment, and *return the said*“ *bond so taken, together with the affidavit of the said President, &c*or “ of their attorney &c. subscribed by them or him, with their or his “ proper name, to the Court of Pleas, &c. to which the said or.ginal “ attachment was returnable, to wit, to the Court of &c, and this the *398*“*said *J. II.*and *8. C. 3.*are ready to verify. Wherefore, because “the said original attachment has been issued without bond and affi- “ davit, taken and returned as aforesaid — they the said *J. II*and *S. “ C. B.*pray judgment of the original attachment, and that the same etal.Kmaybe'qJ,4„

To this pica the Plaintiffs demurred generally, and the demurrer being overruled, the Plaintiff appealed to the Superior Court. On the last Circuit, his honor Judge Martin, at the request of the Counsel on both sides, pro *forma,*affirmed the judgment, and the Plaintiffs appealed.

*Badger,*for the Plaintiffs.

1st. The plea is bad for duplicity, it alleges first that the bond and affidavit was not taken. Secondly, that they were not returned. These are distinct facts, either of which is sufficient to sustain the plea. The Plaintiff cannot learn from the plea which fact is relied on, ami more certainty is required in a plea in abatement than in bar. (Co. *Litt.*303 *a.*— Com. *Dig. Abatement I. 2*— Meant v. *Tomlin,*3 *Lev. 67*— L *Ckitty’s Pleadings, 446*— 7, 526— *Bacon’s M. Fleas*R• 2).

2d. The plea is bad for repugnance; it alleges that the bond was not taken, and that *the said bond so taken*was not returned. The error consists in following the very words of (he act. But one of the facts alleged, should have been stated in the plea. *(Service*v. *Hurmance,*2 *Johns. Jl. 96*— Cooper v. *Hurmance,*3 *Johns. R.*315— *Daning*v. *Owen,*14 *Mass. R. 157*— More v. *Parker,*3 *Mass. Rep.*310).

3d. The Plaintiffs may avail themselves of those objections on general demurrer. *(Walden*v. *Holman, Ld. Ray. 1015*— Tidd’s *Practice, 4th edition,*885 — 1 *Chitty on Plead. 456*— Buddie v. *Wilson,*6 T. *R. 369*— Clifford v. *Coney,*l *Mass.*495).

*W. H. Haywood,*for the Defendants.

1. The plea is not *repugnant*— the words *“so taken”*refer not to the bond *as*taken in fact, but they refer to *399to the peculiar description of the manner in which the bond is required to be taken, to-wit, the penalty, conditions, &c.

Or *so taken”*may be rejected as *surplusage*which ;s never retained to make pleadings repugnant — unless by such unnecessary allegations the party admits that, which shews lie has no cause of action, or defence. (1 *Chitty on Pleadings, 232-4*— Ibid.*524*— Co. *Litt.*303 5. 10 *Mast*142).

This plea, though it be in abatement, is entitled to a fair construction, especially as it is a defence given by act of Assembly, and hence it cannot be considered like ordinary pleas in abatement as *odious. (Rev p.*290, *s.*29) The plea pursues the very words of the act. *(Ibid.')*

2. There is no *duplicity*in the plea. *(Co. Litt*304 *a. Chitty on Plead.*512 — 4 *Bacon’s Jlbridg. Tit.*Misnomer, *F. page*— 5 *Bacon’s Mi-, page 4-,6*— Ashton v. *Sherman, L. Ray. 263*— Otis v. *Blake,*6 *Mass Rep.*336).

3. Duplicity in a *plea*to ¡ tie *writ*is no fault. *(Co. Lit.*304 *a.*— 1 *Bacon’s Abr. Tit. Abatement 1*— Tresilian *v. Slocumb, Carthexo’s Rep.*8, 9, cited by *Chitty’s PI-*446).

4. It is conceded thiyt the statute *27 Elia, c,*5, and 4 *Ann ch.*16, apply only to pleas in *bar.*But *ditplicity*in pleadings at the *common laxo*could be excepted to, only upon *special demurrer. (Tidd’s Practice*64?, *648*— Chit*ty on Pleadings, 640*— Anonymous, 3 *Salk.*122).

Taylor, Chief-Justice.

The attachment law introduced a mode of proceeding, unknown to the common law, and may operate injuriously' in cases where the Defendants reside in other governments, and obtain no notice of its issuing. The case therefore furnishes additional reasons for the application of the rule of common law, that the provisions of such statutes shall be strictly pursued, and be so construed, as to enforce on the Plain-tiffa compliance with those requisites, which are provided for the security of the Defendant. The making affidavit *400a in! giving bond are conditions precedent to granting the attachment : and returning the bond and affidavit to Court, are of consequence to the Defendant, to enable j|¡m t0 sce jlow far the Plaintiff has entitled himself to the attachment, and to obtain a compensation against him, if it be wrongfully sued. Indeed there is no law in the statute book, which more imperiously demands a strict construction *;*for the property of an absentee may be all.sold upon an attachment wrongfully sued out, before he is apprised of the proceeding, and if then he should discover that no bond and affidavit were taken and returned, his remedy must be at best very imperfect. I take it therefore, that the law, having imposed on the Plaintiffs the duty of giving bond, and seeing that it is returned with the affidavit to Court, has made these three facts one condition, on which alone the Plaintiffs can issue an attachment, and I apprehend that it will appear that separating them for the purpose of pleading, will lead to a construction which destroys the text of the act, and tends to the elusion of its provisions.

Upon the demurrer to the plea of abatement, the Plaintiff has first objected to it, on the score of duplicity.— The proposition is this, that it is not allowable to plead several facts, either of which, if true, would be sufficient to abate the attachment. But this is correct in (his sense only, that is, when the matters pleaded are distinct and unconnected with each other. This is shown by the cases cited of the two outlawries, or the two excommunications ; they have no connexion with each oilier, and either is sufficient to abate the action. *(Bacon’s Mb. title Abatement*P.) It is shown still more decisively, in the cases cited from 2 and 3 *Johns,*in the first of w hicb the Defendant pleaded a discharge under the act of insolvency; the Plaintiff replied, setting forth all the grounds on which the discharge is made void by the act, in the words of the act. On demurrer the replication was held to be bad, because the Plaintiff had not specified the particu*401lar fraud, on which he meant to rely. It- was not necessary that all the grounds of fraud should concur to avoid the discharge, for the act'had given that effect to eacli of them severally. JSo in the other ease, to a similar plea, the Plaintiff replied three distinct and independent grounds to avoid the discharge, which would require several distinct points to be put in issue. These replications were very properly held to be defective, on account of duplicity. I have examined alb the pther oases cited, to which I have access, and they all proceed upon the same ground, that the facts relied upon are separate and independent of each other, and that each, if true, would form a good defence. This is a sound rule of pleading, for it would be. embarrassing to have, as many issues, as there were facts relied upon, when the trial of one would decide the question. . ■

But the rule is very different, where the several facts pleaded have a dependence on each other — where the whole form one point or one defence. Thus it is laid down, “ if a man allege several matters, the one not having any dependence 'on the other, the plea is accounted double but if they be mutually depending on each other, then it is accounted as only single.” *(Sys. of Pl.*198). So it is said, that *“*if one plea contain divers matters in it, upon which an issue may be taken, yet this plea is not double, if it could not have been good without -alleging •those matters in it. For although the law does not allow captious pleas, yet it will not delay the Defendant to plead all such matters, that the case affords for his just defence.” *Ibid.*

I cannot understand that there is any limitation to the number of facts, a man may rely upon in his plea, if they all converge to one point, and may be tried upon one issue. If a man is sued upon an obligation, he may plead that he was illiterate, that it was falseh read to him, besides that it was' delivered as an escrow, arid the con*402ditions not performed,, All f líese do not m;tke liis plea double, for they may be tried on one issue, *non est factum. fSys. of PL*200J. The position is confirmed and u-justrated by the modern cases. Thus in *Robinson v. Rayley,*(1 *Burr.*316,) the Defendant in trespass pleaded a right in common for his cattle, *levant*and *couchant.*The' Plaintiff replied that they were not his own commonable cattle, *levant*and *couchant.*The Defendant, demurred specially, because the replication was multifarious ; but the Court held the replication good, the rule being not that issue must be joined on a single fact, but on a single point, and that it was not necessary that-lhis single point should consist only of a single fact. And in a case which approaches nearly to this in principle, the Defendant demurred to the replication, assigning for cause, that the Plaintiff, by the replication, liad attempted to put in issue three distinct facts, t he act of bankruptcy, the trading and the petitioning creditor’s debt. The Court held that these three facts connected together constituted but one entire proposition, and that the, replication was good. ( *Steph. on Pl.)*274 ). In truth, it is difficult to find a special plea, that is not made up of a variety of facts, all however tending to and making parts of the same point of defence.

The point in controversy here is, whether the Plaintiff has entitled himself to the attachment. The Defendant says he has not, because no bond and affidavit are taken and returned. Ifthe.se facts are traversed in the replication, and are found in favor of the Plaintiff, he lias done all that the law required, and it will appear to the Court that he is entitled to the attachment. There is no other way of showing it to the Court, and a different rule of pleading would have a manifest tendency to dispense with those safeguards, which the act has placed around the property of absentees. If appears to me that the Defendant is clearly entitled to call on the Plaintiff *403to show, that he has done all the law requires to entitle him. The consequences of a different doctrine may be of a most serious kind to Defendants so situated. Suppose the Defendant selects one fact, viz. that no has been returned to Court, and the Plaintiff takes issue upon it, and it is found against the Defendant, the Jury must assess damages, and the judgment is peremprory that the Plaintiff recover. Yet in such case, no bond may have been filed *;*the attachment may have been sued out most injuriously, and the Defendant’s property taken, from him under colour of law, without the chance of redress. Let the consequences he traced, likewise upon the supposition, that the Defendant relies upon the plea that no bond has been given and returned, which is found against him, although the affidavit be filed.

In whatever light T see this question, it seems to me, that the taking the bond and its return with the affidavit, constitute one point or qualification for the Plaintiff to prosecute the. attachment, that if he was sued for suing out the attachment maliciously, he'would be bound to aver them, inasmuch as the act has connected them together.

As to the repugnancy, in whatever form the plea has been drawn, it is quite evident that the pleader meant to present the objection furnished by the act of *1777,*that a bond had not been taken and returned — that the Justice did not take a bond, and the bond *which the act requires to he so taken,*was not returned. It is the separating the taking of a bond from the return of it. that has created the apparent incongruity ; for if the plea had simply stated that no bond was taken and returned, it would have been unexceptionable. Comparing the plea with the act of Assembly, no doubt can exist of the object, and design of it, On the whole, we think the justice of the case may be obtained, by-giving the Plaintiff leave to withdraw the demurrer, and file the bond *nunc pro tunc.*If the bond *404and affidavit, heretofore taken,* be not returned, the demurrer must bo overruled.

Per Cürxam — Let (be Plaintiff withdraw his demurrer and file Ins bond and affidavit *nunc pro tunc.*

*

It was slated in argument and not denied, that the Plaintiffs had made affidavit and given bond, but the Justice of the Peace had neglected to return them.