Z. Flommerfelt against Conrad Zellers

*Z. Flommerfelt against Conrad Zellers. MATTER OF ATTACHMENT — SERVICE OF NOTICE. 1. The notice of taking affidavits to prove the commission of waste, (after a rule of this court lias been made upon the party to stay waste) in order to lay the foundation of an application for an attachment, is properly served upon the party liimself, and need not be served upon his attorney. 2. There must always be a notice of the taking of affidavits to prove the waste, to lay the foundation for an attachment. An action of ejectment had been brought by Z. Flommerfelt against O. Zellers, and a rule taken upon Zellers, the defendant, to stay wTaste. Saxton now applied to the court for an attachment against Zellers for a contempt, and offered to read affidavits of the commission of waste by Zellers, since the service of the rule of this court. Ewing, objected to the reading of these affidavits, because they had been taken without any notice to the defendant’s attorney. Saxton, did not apprehend it was necessary that any notice should be given of the taking of affidavits to prove waste ; but if it was necessary, notice had been given to the party himself, of the taking these affidavits. Kirkpatrick, O. J. There must always be a notice of the taking affidavits to prove the waste, to lay the foundation of an application for an attachment. Ewing. The question then is, whether, when there is an attorney on record, the notice must be given to the attorney or to the party ? The rule was,' that in all proceedings in a cause where notice wras requisite, the notice must be served on the attorney, if the party had one; that here the party had an attorney in the ejectment; that all the previous proceedings, up to the making the ordeV for the attachment, were proceedings in the ejectment, and were so entitled; and it was not until the making of the order for the attachment that the style of the proceedings W'as changed, and the name of the state introduced. The taking of these affidavits, then, being a proceeding in the cause, the notice should have been to the attorney. Saxton, contra. This is not a proceeding in the ejectmentIt does not come within the purview of the ejectment at all; it is a *distinct proceeding, which is to operate personally on the defendant, and does not in the least affect the property for which the ejectment is brought. It is a proceeding in the name of the state, in the nature of a criminal proceeding, and in the King’s Bench is always on the criminal side of the court. Although the defendant has an attorney in the ejectment, yet he has none in this criminal proceeding. It by no means follows, because a gentleman is the attorney in the ejectment, that he is necessarily so in the attachment. Suppose process had been issued in a civil suit, and the defendant had been brought into court, and spoken contemptuously of this court, this contempt would have grown out of the civil suit, but it would be a distinct substantive matter, and the proceeding against him for the contempt wmuld be altogether distinct and separate from the proceedings in the civil suit. So, in the present case, the proceedings were totally distinct from the ejectment, and service was properly made upon the party. [MAJORITY — .Per Curiam.] .Per Curiam. We are all of opinion that the notice was properly served on the party himself.