cient, as the statute prescribes the form of the security.(x) A regular bond in the terms of the statute must be given. Its form may be as follows: BOND ON ATTACHMENT. Know all men by these presents, that we, JAMES JACKSON and JOHN STYLES, are held and firmly bound unto RICHARD ROE in the sum of two hundred dollars, (if under the non-imprisonment act, the penalty will be one hundred dollars,) to be paid to the said RICHARD ROE, or to his certain attorney, executors, administrators or assigns: to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our scals. Dated the first day of February, 1840. Whereas, application has been made by the above bounden JAMES JACKSON, to RANSOM COOK, Esq., a justice of the peace of the town of Saratoga Springs, in the county of Saratoga, for an attachment against the property of the said RICHARD ROE, in favor of the said JAMES JACKSON, (or in favor of John Doe,) in pursuance of the provisions of Article second, Title fourth, Chapter second, Part third of the Revised Statutes: (or in pursuance of the provisions of the "act to abolish imprisonment for debt and to punish fraudulent debtors :") Now, therefore, the condition of this obligation is such, that if the said JAMES JACKSON, (or John Doe,) shall pay the said RICHARD ROE, all damages and costs which he may sustain by reason of the issuing of said attachment, if the said JAMES JACKSON (or John Doe) shall fail to recover judgment thereon; and if such judgment be recovered, and the said JAMES JACKSON (or John Doe,) shall pay the said RICHARD ROE all moneys which shall be received by him from any property levied upon by such attachment, over and above the amount of such judgment, and interest and costs thereon, then this obligation to be void, otherwise of force. JAMES JACKSON, [L. S.] Sealed and delivered and in the presence of RANSOM COOK. 1 approve of JOHN STYLES as surety, in the foregoing bond. February 1st, 1840. RANSOM COOK, Justice. (x) 13 John. 481. As to the rule of damages in actions upon attachment bonds, vid. our remarks post, under the head "Of Damages." On receiving the necessary proof and security, an attachment is to be issued, which must state the amount of the debt sworn to by the applicant, and command any constable of the county in which the justice resides, to attach so much of the goods and chattels of the debtor, as will be sufficient to satisfy such debt; and safely to keep the same, in order to satisfy any judgment that may be recovered on such attachment; and to make return of his proceedings thereon, to the justice who issued the same, at a time therein to be specified, not less than six, nor more than twelve days, from the date thereof.(y) It may be in the following form: FORM OF ATTACHMENT. SARATOGA COUNTY, Ss. The People of the State of New-York-To any Constable of said County, GREETING: Whereas JAMES JACKSON has made application to me, RANSOM COOK, Esq. one of the justices of the peace of the said county, for an attachment in his favor, (or in favor of John Doe,) against the property of RICHARD ROE, according to the provisions of Article second, Title fourth, Chapter second, Part third, of the Revised Statutes, (or the Act to abolish Imprisonment for debt and to punish fraudulent debtors, as the case may be,) for a debt of dollars, being the amount sworn to by the applicant ; which debt arose upon contract, (or upon a judgment;) and the requisite proof by affidavit, and a bond with sufficient surety having been made and executed: You are therefore commanded to attach so much of the goods and chattels of the said RICHARD ROE, as will be sufficient to satisfy such debt; and safely to keep the same, in order to satisfy any judgment that may be recovered on this attachment. And do you make return of your proceedings hereon, to me, the said justice, at my office, in the town of Saratoga Springs, on the 12th day of February inst. at one o'clock in the afternoon; and have you then and there this precept. Given under my hand, at the town aforesaid, the 1st day of February, 1840. RANSOM COOK, Justice. The attachment may be amended by the justice even after service and return, by inserting the amount of the debt sworn to by the applicant. (2) (y) 2 R. S. 162, 163, § 30. (z) 14 Wen. 230. Short Attachment. This species of process is authorized by the act to abolish imprisonment for debt,(a) and issues only against a defendant nonresident of the county, upon a demand on which a warrant cannot be issued according to the thirty-first section of the act referred to.(b) The plaintiff may take either a short summons or short attachment. In order to make out the necessary facts to warrant the issuing of this process, the plaintiff should, by affidavit, bring his case within the provisions of the act; that is, he should prove to the justice, by his own oath or otherwise, the nature of his demand, that no warrant can issue upon it according to the said 31st. section, and that the defendant is a non-resident of the county. The affidavit may be in the following form: FORM OF AFFIDAVIT FOR SHORT ATTACHMENT. SARATOGA COUNTY, SS. JAMES JACKSON being duly sworn says, that RICHARD ROE is justly indebted to this deponent, (or to John Doe,) on a demand arising upon contract, (or upon a judgment,) in the sum of dollars, as near as this deponent can estimate the same, over and above all discounts which the said RICHARD ROE has against him, (or the said John Doe.) And this deponent further says, that according to the 31st. section of the act to abolish imprisonment for debt and to punish fraudulent debtors, no warrant can issue on the said demand against the said RICHARD ROE; and that the said RICHARD ROE resides in the county of Fulton, out of the said county of Saratoga. Sworn before me this day of 1840. JAMES JACKSON, RANSOM COOK, Justice of the Peace. It is customary, although not required by the act, to present a written application for this process, as well as for a long attachment. This application may be in the form given ante, p. 474. A bond must also be executed in the penalty of one hundred dollars. (c) The act prescribes no form for this particular process. In order to supply this omission, resort must be had to the general provision of the revised statutes, cited ante, p. 490, which applies, so far as it is consistent with the provisions of the non-imprisonment act.(d) The form (a) Sess. Laws of 1831, p. 403, § 33. (b) Id. § 30, 31, 32, 33. Ante, 452, 453. (c) Sess. Laws of 1831, p. 404, § 35. For form of bond, vid. ante, p. 489. (d) Sess. Laws of 1831, p. 405, § 43. there given would therefore be proper for a short attachment, only changing the time limited for the return, to the shorter period prescribed by the act; that is, to not less than two, nor more than four days from the date.(e) Before the decision of the supreme court, in the case of Clark v. Luce,(ƒ) it was considered doubtful whether an attachment could in any case be issued without cause shown; that is, without showing a fraudulent intent, on the part of the defendant, within the provisions of the revised statutes and the non-imprisonment act. That case, however, settles the question. It was as follows: Luce sued out a short attachment against Clark, which was founded on an affidavit of Luce, that Clark was a nonresident of the county, and was indebted to him in the sum of about $50, over and above all discounts, and that such indebtedness arose on conOn error, the supreme court held the issuing of the attachment regular; and after a few preliminary remarks, in which the provisions of the non-imprisonment act, applicable to the case, are quoted and commented upon, Savage, Ch. J. says: "Before the act of 1831, the process against non-resident debtors was by warrant; and if judgment was ob tained and property was not turned out upon execution, the defendant was imprisoned; but when imprisonment for debt was abolished, it secmed proper that an arrest should be dispensed with, in all cases where the party could not be imprisoned upon final process. Hence the 33d section does not allow the summons or attachment, in cases where the defendant is liable to be imprisoned, because, in such cases, a warrant may be issued; but when a warrant cannot be issued, this statute intended to give a more summary and effectual remedy than against residents of the county; and therefore, as I apprehend, left the plaintiff to take an attachment against a defendant who is not a resident of the county, but is a resident of the state, as a substitute for a warrant under the former statute." (e) Sess. Laws of 1831, p. 403, § 33. (f) 15 Wen. 479. SECTION IV. TIME, MODE AND EFFECT, OF ISSUING PROCESS; AND WHEN A DEFECT THEREIN IS WAIVED. 1. No writ, process, warrant, order, judgment, decree, or other proceeding of any court or officer of justice, can be served or executed upon Sunday, (except in criminal cases, and where such service is specially authorized by law,) and the service of any such process or proceeding, in all cases, is void, and subjects the party offending to damages, at the suit of any person aggrieved.(g) The prohibition extends to the issuing of process; (h) and process dated on Sunday would be held void. (i) It has been determined by the supreme court of errors in Connecticut, after the greatest deliberation, that the term Sunday, or Lord's day, includes only the solar day-that is, the time between sun rise and sun set-so, that before sun rise, or after sun set, of that day, process may be either issued or served, or any judicial act done.(j) This question has, I believe, never directly arisen and been decided by our supreme court; though the general idea with us is, as far as I have been able to learn, that Sunday includes the whole natural day of twenty-four hours; and in Butler v. Kelsey,(k) our supreme court set aside an inquisition taken before a sheriff's jury, where the hearing of the allegations and proofs of the parties closed on Saturday evening at half past eleven o'clock—the jury retired at one A. M. of Sunday, and returned their verdict at four A. M. of the same day-certainly before sun rise. The court held the case unlike that of a trial at a circuit, where a verdict is sometimes taken on Sunday morning, because the jury must otherwise be kept together during Sunday. The same rule applies to a justice's court, where a verdict may be received on Sunday, although it is illegal for the justice to enter the judgment in his docket on that day.(1) 2. It was some years ago determined by the supreme court, that a general authority from the justice to a constable, or any one, to fill up, alter or make out process, was void; and though a direction to a consta (g) 1 R. S. 675, § 58. Vid. also 3 cases, ante, p. 246. Vid. also note (6) John. 257. (h) 12 John. 178. (i) Id. 180, per Thompson, Ch. J. on same page. |