Allen v. Fleming

48 S.C.L. 196

• Court: Court of Appeals of South Carolina
• Decided: May 15, 1867
• Status: Published

Opinion

The opinion of the Court was delivered by

Dunkin, O. J.

The Act of 1839, 11 Stat. 27, authorizes the writ of attachment on the oath of the plaintiff that the defendant “is removing out of the district privately, or absconds and conceals himself, so that the ordinary process of law cannot be served upon him.” The terms of this affidavit do not state that the defendant “is removing, out of the district privately," nor does it state that he “ absconds and conceals himself.” The oath is that the defendant “is removing or is about to remove out of the said District of Abbe-ville, so that the ordinary process of law cannot be served upon him.”' Assuming that, on either of these conditions, the writ would be properly issued, the affidavit is fatally defective. In Devall vs. Taylor, Chev. 5, the Court say: “ To authorize the attachment, there should be a precise allegation of some one of the categories which give jurisdiction;” and, Judge Earle adds, “I would consider an affidavit in the disjunctive as bad, although either of the facts deposed to might be sufficient.”

The motion to reverse the order of the Circuit Court is dismissed.

Wardlaw and Inglis, J. J., concurred.

Motion dismissed.