Ware v. Todd

GOLDTHWAITE, J. — Departing from the order pursued by the assignment of errors, we will notice the defects which are supposed to exist in the case, from its commencement by the affidavit, to its conclusion by the judgment. 1. The affidavit is obnoxious to criticism, but we think it is not so defective, as to render a judgment, otherwise proper, erroneous for this cause. The oath required by statute, (P. Acts of 1837,) is, that the defendant is about to remove himself from the State, so that the ordinary process of law cannot be served on him. The affidavit states, that he is “ about to abscond himself and his property out of the State, so that the process of law cannot be served on him.” This, is equivalent to the assertion, that the defendant is about to remove himself and property out of the State p7'ivately, and is, therefore, substantially within the requirement of the statute. 2. The proper direction of process of this description is to the sheriff, or to any sheriff of the State: but we should hesitate to declare the proceedings erroneous for an omission of a proper direction, if, in point of fact, the process was executed by the proper officer. The only manner in which advantage can be taken, of such a defect, if available at all, is by plea in abatement. It is true, that this attachment was executed by a constable, but this point is not raised by the assignment of errors. 3. The omission of the declaration is a fatal defect, and was so ruled to be, in the case of Napper v. Noland (9 Porter 218) and Price v. Chevers (Ib. 511.) 4-5. It was also erroneous to render a judgment, before the maturity of the demand, on which the attachment W'as founded. The proper course in such a case is, to stay proceedings until the period when the debt becomes due, after which, a judgment can be rendered as in other cases. The variance between the plaintiff, in the judgment, and him who commenced the proceedings, by suing out the attachment, is not covered by any one of the assignments of error. For the omission of a declaration, and because the judgment was rendered prematurely, it is reversed and the cause remanded for further proceedings.