Wallis v. Murphy

2 Stew. 15 | Ala. | 1829

By JUDGE PERRY.

Among other causes it is assigned for error, that the affidavit is not sufficient to authorize the issuance of the attachment. The question arises, is the statement in the affidavit sufficient under the act of 1S07,^a to authorize the issuance of the attachment? The causes for which an attachment may issue, as designated in the law, are, “that any person hath re-' moved, or is removing him or herself out of the county privately,” &c. The reasons then, as stated in the' affidavit as the ground upon which the attachment issued, are not warranted by the statute, which only authorizes an attachment to issue upon affidavit that the person hath removed, or is removing him or herself out of the county privately, so that the ordinary process of law cannot be served on him. In this case the oath is, that the defendant helo w “is about to remove himself out of the county of Morgan, his place of residence, so thattheordinaryprocessoflaw cannot be served upon him;” this statement does not furnish a sufficient reason for grantingthe attachment; it should have been, that Wallis was actually removed, or was removing privately, either of which facts might have furnished a sufficient reason for the issuing of the writ. The allegation, therefore, that Wallis was about to remove, does not negative the idea that he was not amenable to the ordinary processof law; consequently the attachment improperly issued, and should have been quashed.

Judgment reversed.^b

a Laws of Ala. page 12,sec.2

b See Wilson v. Oliver. Minor’s Ala. Rep. 196.