Nicholl v. Savannah Steamship Co.

(nem con.) was of opinion that the defendant had a right to appear to the capias, and that such appearance dissolved the attachment

Mr. Jones, for plaintiffs, took' a bill of exceptions, which stated “that the attorney for the plaintiffs, on the 7th day of July, at the session of the court which commenced on the first Monday of June, (which was the return day of the attachment,) moved the court for judgment of condemnation'against the property and effects of this defendant attached in this cause; and in support of the grounds alleged by the plaintiffs in their affidavit, account, and short note, upon which the attachment issued, produced and read in evidence to the court, the depositions of H. B. P. and H. C. &c.”

Whereupon, A. Taney, Esq., as attorney for defendant, applied to the court for leave to enter a common appearance by attorney for the defendant in the said suit, and without showing any cause against the condemnation or any defense against the debt so proved as aforesaid, to dissolve the said attachment upon a mere appearance, to which the plaintiffs by their counsel objected, and insisted that the said attachment should not be dissolved, but that the court should proceed to judgment of condemnation, notwithstanding the appearance of the defendant by attorney, as aforesaid, unless the defendant, besides offering such appearance, should make an effectual defence in the said suit, and show good cause against the condemnation prayed by the plaintiffs.

But THE COURT overruled the objection of the plaintiffs’ counsel, and refused to proceed to a determination of the merits of the said attachment, and refused to render judgment of condemnation upon the said attachment, and ordered the said attachment to be dissolved upon a mere appearance by attor*179ney as aforesaid; and ordered the suit upon the capias, issued with the attachment, to he continued under the ordinary rules to plead, &c.