Temple v. Cochran

BIRCH, J. This was a suit by attachment. The words of the affidavit upon which it was issued being, “that the. said affiant has good reason to believe, and does believe, that the said defendant has absconded or absented herself from her usual place of abode in this State, so that the ordinary process of law cannot be served upon her.” In point of fact, the writ was served upon the defendant, within the county, the day after it was issued, and the evidence was satisfactory that she had not been out of it. Her conduct had been of a character, however, which might well enough induce the belief that she had absconded at the lime the affidavit was made, and the writ issued ; and the plaintiff, therefore, upon the trial of [84] tlie issue in abatement, asked instructions to tlie effect, that if tlie jury believed it to bave been the intention of the defendant, to prevent the ordinary process of law from being served upon her, and that, therefore, she absconded or absented herself from her usual place of abode, in such manner as might and probably would have defeated the service of the summons upon her, they might find for the plaintiff; although at the time of making the affidavit, it was physically possible to have served upon her ordinary process. The court declined to give-the instructions asked by the plaintiff, but gave others, to the effect that the instructions of the defendant were not in issue, and consequently not a subject for the consideration of the jury; and that, the only question for their determination was, whether at the time of making the affidavit the defendant, had “ absconded or absented herself from her usual place of abode, in this State, so that the ordinary process of law could not then be served upon her.” Had the facts in the case been deemed by the jury, analogous to those which were hypothetically assumed in the instructions referred to by the plaintiff, on the question of “ absenting herself,” it would have been competentand proper for them td find the issue against her, without any plainer instruction than the one above quoted. It will be perceived, that it is not only clear, but that it contains alike the words of the law, the affidavit and the plea ; and of course presents the issue. Whatever, therefore, may be the thought of the apparent defect of the statute, we deem that the Circuit Court did right, in conforming its instructions to the terms in which it was written by the Begislature. The remedy by attachment being strictly statutory or legislative, and that body having only authorized the"“ intention ” of the party to be considered in two of the nine cases under which the writ may issue, and this not being one of them, the courts may regret, but cannot supply the seeming defect. Although the record-in this case is a somewhat heavy one, yet deeming that the point relied upon has been sufficiently made and met by what has been written, we but add, that could we discover any ambiguity in the law upon which this proceeding was predicated, we would of course be inclined to attempt such a solution of it as would best promote the apparent ends of justice and of right. Where, however, as in this case, the legitimate expressions are not only clear, but apparently discriminating, neither the Circuit Courts nor this court can, of course, have any legitimate latitude or discretion. The judgment of the Circuit Court is accordingly affirmed.