The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-06-14

[REroR7Ep EXPRESSLY ron raE EASTERN clAmoNl
A. Richard,
vs.. 9iOi.
J. Mooney.
This was a proceeding in attachment
in the Circuit Court Of Harrison, in which
the plaintiff recorded a judgment against
the defendant wlo prosecutes this writ Of
error.
The Judgment is objected to first be-
cause the defendant had no notice either
by publication, as equired by statute IN
=. --rSss, "a ~ ~---As=---H r. s,,N'.' -
him, of The pendency Of the suit second
| because judgment vas rendered against
| the surety in the rephyin bond as well as
the defendant in the attachment tor the
amount of the debt dte to the plaintiff,
the Jury having omitted to assess the
value Of the property witch was leyie | on
and replevied.
lst. The attachmentwas eturnable tot the
October term (l860) Of tn, Circui. Court
Of said county, which by Law commenced
on the Sd Monday, the. 18th day Of that
month. Before that day, Il wit, on the
18th Of the same month, the defendant
executed his bond Of repleyin and re
ceived from the sheriff the property which
had been levied upon.
In proceedings Of this characer wher,
publication has been made in srict con
: iormity to the statute, the legal pesump
ton exists, that the party sought to b
charged has had notice. And it upol
this presumption alone, that the auhorit
of the Court to render judgment, is yased
t The act Of the defendant in executing TIA
repleyin bond, is proof conclusive, ,ha
he had not simply constructive but acua
notice of the tendency Of the suit.
The Sheriff or other officer who sha
5 execute a writ Of attachment is require
by statute, to summon the defendant
he can be found, Code 373 art 4. The 0
iect of the statute is doubtless, to ayo
e the expense Of publication, and to obvia
the necessity Of giving notice in that wa
when the defendant can be personal
served with notice 1t is manifest tn
the purpose of publication is fully su
served where it appears, otherwise in an
Their form, that the defendant has had q
= tual notice. And it seems to have be-
: the evident intention Of the Legislator
a that the act of executing replev
e bond under the provisions of either Il
o eighth or the eleventh articles of the
- tachmeut law should be tantamount
actual service of process upon the dete
u dant, who thereby becomes personal
At subject to the jurisdiction OF the Court.
lie For it is provided that, under certain &C
IN dtions, judgment may be rendered again
the sureties in the repleyin bond as
a whom process Is not required to be issu
D. or served.
IS We have, therefore, no doubt that
y execution of the repleYn bond IN t
case, was proof of actual notice to the
G PENDANT, and that, by the act of executi
said bond he became amenable to
n jurisdiction of the Court, which was her
le authorized to pronounce a judgment 2
:, sonally binding upon him. The q
- ground of objection is therefore UNI,
II able.
IN ID. The second objection is well Goal
a ed. The replevian bond was eyecut
= under the provision Of the Sth article
d" the act in regard to attachment Code 3
W
e. assessed the damages of the plaintiff, al
to assess the value of the property VIII
was taken under the attachment and
plevied. The jury having omitted to
sess the value Of the property, twas err
to render any judgment against the su
ty, which was done in this case for I
amount of damages found for the pla
tiff. The statute is express that, VIII
ever the amount may be which is fou
to be to the plaintiff in attachment, iu,
ment shall not be entered against (
surety for sum greater than the ass
sed value of the property. Code 375
to 9. Here as there was no assessment oft
.as value Of the property no judgme
:. should have been rendered against t
- surety.
IN Judgment reversed, new trial award
in and cause remanded.