Peters v. Bower

The Chief Justice

delivered the opinion of the Court.

The Statute provides, that “ when any person who shall be an inhabitant of another government, so that he cannot '* be personally served witli 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 be- “ fore mentioned,” &c. This being a summary mode of proceeding in derogation of the common Law, a strict construction must govern. (Woodley against Sherley, p. 14.) 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 shewn by the plaintiff’s affidavit.. The 7th section of the Act as recited, refers to the rules, restrictions, &c. before mentioned. The second section of the same Act prescribes what shall be •sworn to. (Act of 1807. Turner’s Digest. 148, 146. Laws Ala. 16, 15, sect. 7, 2.) 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 shew that he resides in this State. It is necessary that the officer issuing the attachment should be satisfied of this pre-requi-site ; but we do not -think it necessary that he should shew ■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.

■Crawford and Hitchcock, for plaintiffs.

Perry, for defendant in Error.

Let the judgment be reversed and the cause remanded.