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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
The Circuit Court, on motion, quashed the attachment on the ground that the residence of the plaintiffs in the State was not sworn to. The plaintiffs here assigned this matter as error.
Crawford and Hitchcock, for plaintiffs; Perry, for defendant in error.
THE CHIEF JUSTICE.The statute provides that “when any person who shall be an inhabitant of another government, so that he cannot be personally served with process, shall be indebted to any person a resident of this territory, and hath any estate within the same, any of the said judges or justices may grant an attachment against the estate of such foreign person, under the rules, restrictions and regulations before mentioned,” etc. This being a summary mode of proceeding in derogation of the common law, a strict construction must govern. None but a resident of this government is entitled to an attachment against one who is a non-resident. But how is the residence of the plaintiff to appear. The counsel for the defendant insists that it should be shown by the plaintiff’s affidavit. The seventh section of the act as recited, refers to the rules, restrictions, etc., before mentioned. The second section of the same act prescribes what shall be sworn to. It is not required by this or any other statute that affidavit should be made of the residence of the plaintiff. It is true, the record should show that he resides in this State. It is necessary that the officer issuing the attachment should be satisfied of this pre-requisite; but we do not think it necessary that he should show by what proof it has been made to appear. Here the justice who issued the attachment recites that both the plaintiffs are residents of the State, and in effect declares that he is judicially satisfied of this fact.
Let the judgment be reversed and the cause remanded.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), pp. 69-70.
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