7 Ga. 167 | Ga. | 1849
delivering the opinion.
The error assigned to the judgment of the Court below, is, in overruling the objections to the attachments of Millman, Dawson and Breedlove, made by Levy, the plaintiff in error, who was a junior attachment creditor.
The second section of the Act of 1799 authorizes an attachment to issue upon complaint made on oath, that a debtor resides out of this State, or is actually removing without the limits .of this State, or any county, or absconds, or conceals himself, or stands in defiance of a peace officer, so that the ordinary process
The Statute gives the remedy to the creditor when his debtor “absconds,” at the time of making the affidavit for the process of attachment, so that the ordinary process of the law cannot be served upon him; not when he “has absconded” some weeks or months previous to the time of making the affidavit. The Court below erred in not sustaining this objection.
The affidavit for the process of attachment states, that Huff is indebted to Dawson the sum of five hundred dollars, for rent of a store house, from 1st October, 1847 to the 1st October, 1S48, payable quarterly; and that said Huff is about to remove without the limits of this State, so that the ordinary process of law cannot be served upon him. This affidavit is dated 12th February, 1848. The rent was payable quarterly for the storehouse, so that, at the time of taking out the attachment, one quarter of the rent was due, and payable by the terms of the contract, and the other three quarters were not due and payable at that time. The plaintiff in attachment was entitled to his remedy against the property of his debtor, under the Act of 1816, for so much of his demand as was not due at the time of suing out the attachment, but was not entitled to his remedy, under that Act, for the amount of his rent then actually due. For so much of his debt, then, as was not due at the time of suing out the attachment, the same is good and valid, and for no more; and to that extent he is entitled to have the money in Court paid to his attachment.
There were two objections to the attachment of Breedlove, besidesthe objection to the affidavit, as to his belief, from the evidence in thh possession of the agent.
Let the judgment of the Court below be reversed, with instructions as to Dawson’s attachment, in conformity with the judgment of this Court.