Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-08-18

Bessee, DeiiveFsd a. JsSsso1l, az April
Terms 1885,


Opinions Of the Supreme Gems Of Tenneg.
nessees Delivered al Jackson' az April
Horatio ". Hns "a. LaaeIl Marsh and Hum.
Iris action was commenced BY attachment issued
By Justice Of The Peace Of Shelby county ~ the
defendantsi in errcr against the plaintiffs IN error,
for debt eff $685.. lL returned 70 the llret
Court, where declaration was 6led, pleas entered,
sc. The proceedings are very much complicated
By questions of importance, pleas IN abatement,
demuFreFs replicaiions, amendments, entries Hinac
pro tHnc and agreements Of counsel. We shall not
consdeEit Necessary 10 notice all the points made
in argument but dispose Of the case upon few
questions, raised by the record, which 1t may be
important for the practice to settle
By the so-called plea in abatement, the question Is
made whether an attachment will lie in this State,
when both parties are non residents. The original
attachment Act Of 1874 did not allow it in such cases.
One of the parties, at least, must be citizen-
Meigs' Dig, Sec los. It was extended to such
cases in Equity, BY the Act Of 1885, ch. 40. But
that Act did not apply to courts Of law, nor IS there
any statute to that effect unless it be that Of 1e5l2
eh. III, sec 2.
tsTHat Justices Of the Peace In this State shall
have jurisdiction 10 issue attachments in favor Of
creditors whether residents or OF this
State, against the property and effects Of a6sconaiag
OF rem0uag nonresident debtors, returnabe before
Justice Of the Peace, If for an amount within his
jurisdiction if not, then to the Circuit Court, In
the sane manner, that attachments noW ne Dy law,
issued against absoOnding or removing debtors"
1t is very clear, that the plaintiffs may be non
residents, By ali the acts, but may the defendants
/ likeWisel
That is, will it lie when both are non residents
! If that be So then the plea in abatement Is bad,
and should have been 90 held, the demurrer. The
attachment acts being contrary to the course Of the
common law were at first, strictly construed by the
Courts, But finding they we're great favorites with
the Legislature the rule Of construction was changed
and the course Of The Courts is to enforce this
remedy so broadly, TO carry out the intention o.
the Legislature, fully and effeotually.
By the last Act the process is to be issued N faYol
Of resident, OF non resident creditor But that
was so befote. against whom may he issue it, i
the creditor be non resident, is the question TIT
statute says: Against the property and effects o
oBscondiag or Tsmoging non resident debtors" How
can nonresident be sbsconding or removingf
The word or" OF 81 and, is omitted in the sen
lenee and must be supplied or understood, to max
sense 1t would then read, " abscondiDg or re
moving or non resident debtors" It cannot b
doubted, that the Legislature intended the larges
power and there is good reason, in view Of thei
cherished policy on that subject, why this shoul
not be so.
Il follows from this construction, that the magis
trate had authority to issue the attachment, and
So the plea, if it were good in form, which it va
not was no defence, and there was error in over
ruling the demurrer to it. That will be reversed
and the demurrer sustained. Bat the Judgment wi
be, that defendant answer over to the merits.
This renders it unnecessary to examine the othe
questions and must result in reversal. The eaus
, will be remaRded with liberty TO the defendant
plead ever. CARUTHERs
Test: NJ. D. WEIGH. Cgsrk.