Roberts v. Hugg

The act of 28th March, 1835, does not comprehend absent defendants not actually served with process, and who were not in court, until after the expiration of the time allowed to file an affidavit of defence, (Stroud's Purd. tit. Courts.) The 72d section of the act of 13th June, 1837, (ibid tit. Foreign Attachment^) allowing the .plaintiff to proceed as in case of capias, is not inconsistent with this view, because he is to proceed “ in the manner hereinbefore provided,” which embraces the right of the defendant to put in bail and dissolve the attachment at any time before money paid, and then the action proceeds as if instituted by capias. This is a provision having no relation to the class of cases which come within the scope of the act of 28th of March, 1835. The judgment against Bell was therefore irregular and must be set aside.

Rule absolute.