JOHN HANDLIN and al. adsm. THE STATE.

purposes to be considered as a part of the same, does not direct the conviction to be entered up in the form prescribed in the original act. But if the justice was not bound to follow that form, yet he should have drawn up a record, containing and shewing upon the face of it, every thing necessary upon general principles to constitute a legal conviction. (1 Burn. Just. 398. The N. J. Just. 2d Edit. 203. Rex. v. Vipont. 2 Burr. 1163.)

The summons in this case was returnable on the 29th of December, but it does not appear by the record, on what day the justice proceeded to hear the complaint and to enter up the conviction. It does not state the evidence on which he convicted the defendants; but only says that the witness, was duly affirmed, he being conscientiously scrupulous of taking an oath : and though he convicts the defendants, he renders no judgment, against them. The cases above cited and others that might be mentioned, shew that in the absence of any prescribed form by statute, there must be a judgment as well as a conviction-that is, the justice must not only convict, but adjudge a forfeiture of the penalty annexed to the offence.

3dly. Another and fatal objection is, that two of the defendants had no personal notice of the complaint or of the time and place appointed for their hearing; nor, so for as appears on the record, any notice whatever. The constable returned to the justice, as to two of the defendants, that he had served the summons on them by leaving copies at the places of their abode, with some free persons there.

In proceedings of this kind, the accused must be personally served with notice of the complaint, and of the time and place and the magistrate before whom, he is to appear. It is not a proceeding in a court for the trial of small causes, and the provisions of the act constituting that court, have no influence in a case like this.

Some doubt was entertained by the member of this court, who made the allocatur, whether a Certiorari would lie in this case. By the 15th Sect. of the act for suppressing immorality, it is enacted that the conviction directed by that act, shall not be liable to be removed by Certiorari into the Supreme Court; but the supplement under which the present proceedings took place, contains no such prohibition, I am therefore of opinion, a Cer

EAKIN A CREDITOR &c. v. THE ADMINISTRATOR OF BRICK.

tiorari does lie, and that the conviction in question must be quashed and for nothing holden.

FORD and RYERSON Justices, concurred.

Conviction quashed.

EAKIN a Creditor &c. v. The Administrator of BRICK.

On Certiorari to Salem Orphans' Court.

The Orphans' Court, in case of the insolvency of a decedent, have no authority to reconsider and alter their final decree settling the claims on the estate, and to change the amount of assets in the administrator's hands, without notice to, or the appearance of the creditors who are interested in the estate, and entitled to dividends thereof. Nor may the said court make any alterations in the account, as sworn to, in such manner as carries the appearance of the accountant's having sworn that which he did not.

This was a controversy respecting claims upon the estate of a person who died insolvent, and the dispute arose concerning the mode of ascertaining the balance remaining in the administrator's hands, for distribution.

The opinion of the Court, was delivered by

RYERSON J. Brick, the above named intestate, died insolvent. The administrator has proceeded to ascertain the debts to be paid and the fund for their liquidation as directed by "An act concerning the estates of persons who die insolvent ;" Rev. L. 766. The amount of that fund is the chief matter in controversy, which has led to the prosecution of this writ. But it is not necessary,

FAKIN A CREDITOR &C v. THE ADMINISTRATOR of Brick.

to express any opinion on the merits of the dispute. The court below, did not afford a proper opportunity to inquire into the correctness of the amendment by them made in the statement of the funds for the payment of debts. It seems, that at the commencement of their term, the court made a decree, finally settling the claims on the estate, and the assets in the hands of the administrator. At a subsequent day in the same term, and without any notice to the parties, and without any appearance before the court, of the greater part of the creditors, or any kind of public notice, except what resulted from the very proceeding itself, the court made what is said to be a correction in the account, by which the fund for the payment of debts, was diminished more than four hundred and fifty dollars or more than one third of the entire amount. The parties interested in the estate, had a right to be heard before this important alteration was made. But how could they be heard, without notice, either personal, by advertisement, or otherwise? This notice not having been given, the decree, as it now stands, is erroneous, and should be set-aside.

The proceeding was incorrect in another particular. As the account was presented to the court, it had been sworn to, by the administrator. The court altered it, in both sides of the account, by striking out, and interlining; but still preserving the aspect of having been sworn to, in its amended form. That is, in appearance at least, showing the administrator, as having sworn to the truth of that, which he never had. This mode of proceeding was manifestly wrong, and might involve an innocent man in a very serious predicament, or screen a guilty one from deserved censure. The court should have stated the account de novo; Or should have brought down the balances, and made their corrections, by additions, or deductions, at the foot, not touching the account as sworn to.

HORNBLOWER, C. J. and FORD, J. concurred.

Decree of the Orphans' Court, set-aside.

HUSTON THOMPSON v. JACOB EASTBURN, surv. admr. of
WILLIAM TAYLOR. dec'd.

Although the writ of attachment against absconding or absent debtors, is a statute remedy; yet it is not to be governed by the same rigid rules that are applied to the execution of special delegated and extra-judicial authorities. The statute has only prescribed a new writ or new mode of bringing a party defendant, into Court. If he appear, the suit proceeds as at common law. It he do not appear, the Court acts upon his property: the proceeding is in rem; and if the Sheriff has actually seized any of his property, by virtue of the writ, that property is immediately considered as in the custody of the law; and gives the Court jurisdiction to proceed in the cause.

If the Court can see by the Sheriff's return, a substantial service of the writ, they will hold on to the property attached, although his return does not state his compliance with all the particulars mentioned in the statute, as to the mode of service.

This is a remedial statute, and as well upon legal principles, as by its own express enactment, is to be liberally construed for the benefit of creditors.

The provisions of the 4th and fifth sections are merely directory, and a substantial compliance with them, is all that is necessary.

This was a certiorari directed to the Common Pleas of Hunterdon county, removing the judgment and proceedings of that Court upon a writ of attachment issued from that Court, under the "Act for the relief of creditors against absconding and absent debtors" passed 8th of March, 1798.

The objection to the proceedings of the Common Pleas, was, that the Sheriff's return to the service of the writ does not in all things, show a compliance with the directions of the act.

W. Halsted for plaintiff in Certiorari.

H. W. Green for defendant.

The opinion of the Court was delivered by

HORNBLOWER, C. J. The plaintiff in Certiorari seeks to reverse and set aside the judgment and proceedings in this case, simply upon the ground, that it does not appear by the sheriff's return, that he executed the writ, in all respects in the precise manner directed by the act of Assembly. By the 4th sec. of the Statute, Rev. L. 356, it is enacted, "That the writ of Attachment shall be executed in the following manner: that is to say, The officer shall go to the house or lands of the defendant, or to the

THOMPSON V. EASTBURN Surv. admr. of TAYLOR.

person, or house of the person, in whose custody or possession, the defendant's property and estate may be, and then and there declare in the presence of one credible person, at the least, that he attaches the rights and credits, moneys and effects, goods and chattels, lands and tenements of such defendant, at the suit of the plaintiff, in the said writ named." The next section directs, that the officer "with the assistance of one discreet and impartial freeholder," shall make a just and true inventory, &c., and that he shall endorse on the writ, the true time of executing the same, &c.

It appears by the sheriff's return in this case, that he executed the writ by attaching a balance of rent, of fifteen dollars, due the defendant in attachment, from David Johnson; and by seizing several houses and lots of land which are described in his return; and that be so executed the said writ, "by going to the premises mentioned, and then and there declaring in the presence of Joel Gordon, a credible person, that he attached the same." But the sheriff does not say in his return, that he went to David Johnson; or to tho house of David Johnson, nor that he declared in the presence of one credible person, that he attached the property "at the suit of the plaintiff named in the writ." And though the sheriff has annexed to the return, an inventory and appraisement of the property attached, which is signed by him and by the said Joel Gordon; yet it no where appears on the return, that the inventory and appraisement was made with the assistance of one discreet and impartial freeholder." For these reasons, it is insisted that the writ was improperly executed, and the whole subsequent proceedings coram non judice, and void. If this be so, it is proabble there have been but very few instances, if any, in which the proceedings on writs of attachment, either in this Court, or elsewhere, have been properly conducted; for though all the returns may not have been imperfect in the particulars pointed out in this case, yet scarcely one can be found, I imagine, in which, something directed by the statute, has not been omitted. But the argument of the plaintiff's Counsel, is based upon a mistaken assumption. He supposes, because this is a statute remedy, it is to be governed by the same rigid rules that are applied to the execution of special delegated, and extra-judicial authorities. This is a mistake. The statute has only prescribed a new writ, or mode of bringing