(R) Where the property is sold under an execution. "By virtue of the within precept, I have caused to be made of the goods and chattels of the within named B. D. the sum of , which I have ready to satisfy &c." (Or where the property is sold on credit, as authorised under the preceding head, No. V. the truth of the case is to be returned). In practice the above forms are much abbreviated. Thus the return under form (O) would be, "No effects." Form (P) " Levied on ." Form (Q) "Attached in the hands of E. G. and summoned him as a garnishee." Form (R)" Ready to satisfy.” VII. JUDGMENTS ON ATTACHMENTS BEFORE A MA- (S) Where the defendant fails to appear. to wit: A. C. against B. D. upon an attachment. The attachment obtained by the plaintiff against the estate of the defendant, in this cause, being returned executed before me, J. P. a justice of the peace for the county aforesaid, and the said defendant having failed to appear; the plaintiff proved his debt according to law it is therefore considered that the said A. C. recover against the said B. D. the sum of with interest from &c. and the costs amounting to (T) Judgment, upon a hearing. (As in the above form (S) omitting what is between the asterisks, and instead thereof saying)" and the said B. D. appearing, and being fully heard in his defence." (Conclude as above.) (V) Where the attachment is levied in the hands of a garnishee. to wit: A. C. against B. D. upon an attachment. The attachment obtained by the plaintiff against the estate of the defendant, in this cause, being returned executed in the hands of E. G. and it appearing to me that there is now in the hands of the said E. G. of the estate of the said B. D. (or, that the said E. G. is indebted to the said B. D.) sufficient to satisfy the plaintiff's debt, with interest and costs; and the said plaintiff having before me proved his debt aforesaid; it is considered that the said A. C. recover against the said E. G. the sum of with interest thereon, from, &c. together with the costs, amounting to (W) Judgment for the defendant. to wit: A. C. against B. D; upon an attachment. The attachment obtained by the plaintiff against the defendant being returned executed, and the parties having this day appeared before me, and been fully heard, it is considered that the plaintiff take nothing by his plea; that the estate of the defendant attached at the suit of the plaintiff be restored; and that the plaintiff pay to the defendant his costs expended in his defence, amounting to (X) Execution upon a judgment, in attachment. The commonwealth of Virginia, to E. C. constable of in the county of , greeting: district, You are hereby commanded, that of the goods and chattels of B. D. late in your district, you cause to be made the sum of which A. C. lately before J. P. a justice of the peace for the said county hath recovered against him* for debt, on an attachment, or as gar. nishee on an attachment sued out by the said A. C. against B. D; together with which to the said A. C. before the same justice, were adjudged for his costs, in that behalf expended, whereof the said B. D. is convict, as appears by the judgment of the said J. P; and that you have the same before the said justice, on the day of next, to render to the said A. C. of the debt and costs aforesaid; and have then there this precept. Witness the said J. P. at the county aforesaid, the day of in the year of our Lord year of the commonwealth. in the and (Y) Execution for costs. (As in the above form (X) till you come to the asterisk * then say,) "for his costs by him expended about his defence, on an attachment, at the suit of the said A. C. which to the said B. D. were adjudged by by the said J. P. as appears by the judgment of the said J. P; and that you have the same before the said justice on the next, to render to the said B. D. of the costs aforesaid; and have then there this precept. Witness, &c. (as above.) day of If the execution be grounded on a judgment of the justice who issues the execution, and be returnable before him, the above forms may be varied to suit the case. VIII. ADJUDGED CASES, ON ATTACHMENTS. 14. An attachment against an absconding debtor can only issue from the county where he resided, or is actually found, at the time of issuing it. 3 Call. 413. 15. As distress for rent cannot be made off the demised premises, an attachment at the suit of a creditor against the tenant as an absconding debtor, served upon property found off the premises, will be preferred to the landlord's claim for rent. 3 Call. 439. 16. If the warrant of attachment demand only the principal sum and costs, the court cannot give judgment for interest. 3 Call. 415. 17. Where the attachment is levied in the hands of a garnishee, judgment should be first entered against the absconding debtor, and then the garnishee should be ordered to pay it. Ibid. 18. An attachment (prior to the act of January 1806) ought not to have been granted, on the ground that the debtor intended to remove his effects, or would elude the ordinary legal process; but only on the ground that he was actually removing out of the county or corporation privately, or absconded or concealed himself, so that the ordinary process of law could not be served upon him. 2 H. and M. 308. 19. The complaint on which an attachment is issued, and the bond and security for its due prosecution, ought to be made and given by the creditor himself, and not by his attorney at law. Ibid. 20. An attachment irregularly issued ought to be quashed, ex officio, by the court to which it is returned; though bail be not given, nor any plea filed by the defendant; and in like manner, the court ought to quash it, on errors in arrest of judgment, after pleadings and a verdict for the defendant. Ibid. 21. A plea in abatement to an attachment ought not to conclude with praying judgment, if the plaintiff' ought to have and maintain his action, but only that the attachment be quashed. Ibid. 22. A plea that the defendant never absconded is a plea in abatement. Ibid. Under the attachment law of Pennsylvania, which is the same in principle with that of Virginia, the following decisions have taken place. (1) That the partnership credits of a mercantile firm could not be attached to answer the separate debt of one of the partners. 2 Dallas, 73, 4. C. P. But it has been since determined in the Supreme Court, that a debt due to partners may be attached by a separate creditor of one of the partners, who shall recover a moiety of the amount. 2 Dall. 277. See Wats. L. P. 72 [98] &c. as to the liability of partnership effects to execution, for separate demands. See also Wash. 77. \ H. and M. 176. how far an individual and separate claim may be a set-off against a partnership demand. (2) That a debt in suit may be attached. 2 Dall. 277. (3) That debts may be attached before they are due and payable. 2 Dall. 211, 212. (4) That a fund remitted to pay particular creditors cannot be attached. 4 Dall. 279. ATTAINDER. This is derived from the Latin word, attinctus, stained or blacken, ed. 4 Bl. Com. 480. In cases of treason or felony, a man is said to be convicted before judgment is pronounced against him, as if a man be convicted by verdict, or his own confession; but he is said to be attainted, only af1 Inst. 390. ter judgment passes on such verdict or confession. The penalties consequent on such attainder, by the laws of England, were forfeitures of estate, and corruption of blood, so that neither his children nor relations could derive any inheritance through him, nor could his wife claim her dower of his estate. To remedy which inconvenience, as well as to save the necessity of passing a special act of the legislature (which alone could relieve from the penalty) for every case which might occur, it is enacted by the laws of Virginia, that "whensoever any person shall happen to be attainted, convicted, or outlawed of any treason, misprision of treason, murder, or felony whatsoever, there shall in no case be a forfeiture to the commonwealth of dower, or of lands, slaves, or personal estate, but the same shall descend and pass in like manner as is by law directed in case of persons dying intestate; nor shall any attainder work a cor1 Rev. Code, 106. ruption of blood." But quere, whether this act extends to the case of a felo de se, who is neither convicted nor attainted. See c. 27. UNIVERS! 7819 AWARD ALTHOUGH the subject of this title does not come under the consideration of a magistrate as a conservator of the peace, yet as cases arising under it may frequently be brought before him in his judicial capacity, and as almost every person, may be interested in a know ledge of it. I shall treat of the several parts of the doctrine, with some degree of minuteness: Under which I shall shew, I. What an award is. II. Who may or may not be arbitrators. III. Who may or may not submit to arbitration. IV. What things may be submitted. V. The extent of the submission. VI. The several kinds of submission. VII. When a submission may be revoked. VIII. Of the award; when it shall be good, and when not. IX. Of the umpire. X. What shall be a breach of the award. XI. Of the remedy for non-performance. XII. How an award may be relieved against. I. WHAT AN AWARD IS. An award is the judgment, or decree, of persons elected by the parties, to arbitrate and determine the matters in controversy submitted to them. 1 Comy. Dig." ARBITRAMENT." (A) II. WHO MAY OR MAY NOT BE ARBITRATORS. An arbitrator being a judge elected by the party, every one capable of making an arbitrament may be an arbitrator. 1 Comy. Dig. "ARBITRAMENT." (B.) But a person of non sane memory; a person, who by nature or accident has not discretion; an infant; a feme covert; a man attainted of treason or felony; or a person who is not indifferent with respect to the decision of the cause, cannot be an arbitrator, and in the last mentioned case an award made by such an arbitrator would be set aside in a court of equity. 1 Comy. Dig. "Arbitrament.” (C.) III. WHO MAY OR MAY NOT SUBMIT TO ARBITRATION. Every one capable of making a disposition, or a release of his right, may make a submission to an award. 1 Comy. Dig. " ARBITRAMENT." (D 2.) |