The opinion
The supreme court decided long ago, that neither affidavit nor bond was necessary on issuing an attachment against a non-resident debtor, under the 33d section of the non-imprisonment law, ( Clark v. Luce, 15 Wend . 479; Bates
v. Relyea, 23 id . 336,) and although there is room for question whether the proper construction was given to the statute, ( Taylor v. Heath, 4 Denio, 592 ,) still, as it is not a palpable case of error, and the decisions in question have been acted on for many years, I think they should now be followed. A great number of attachments have undoubtedly been issued against non-residents within the last fifteen years, without either affidavit or bond; and if we now hold that both or either were necessary, the proceedings in those cases will all be void, ( Vosburgh v. Welch, 11 John . 175; Adkins v. Brewer, 3 Cowen, 206; Loder v. Phelps, 13 Wend . 46; Gold v. Bissell, 1 id . 210,) and the door will be opened for a flood of litigation. I am, therefore, for affirming the decision, and JEWETT, J. is of the same opinion.
Judgment reversed, and judgment for plaintiffs on demurrer. *Page 257