McCartney v. Branch Bank at Huntsville

3 Ala. 709

• Court: Supreme Court of Alabama
• Decided: January 15, 1842
• Status: Published

Opinion

GOLDTHWAITE, J.

The motion to quash the attachment, is settled against the plaintiff in error, by the case of Lowry v. Stowe, 7 Porter, 483, and we think that he cannot avail himself of the irregularity of the justice in omitting to sign his name in attestation pf the affidavit.

The plea is fully answered by the replication, which asserts-that the affidavit, in point of fact, was regularly sworn to and subscribed before the justice of the peace, who issued the attachment. It would have been more regular for the justice to have certified the affidavit, but we are not prepared to say, that his omission to do so, necessarily vitiates- the proceedings.

The allegation of indebtedness in. the affidavit, is also sufficiently certain;. although it speaks in the conditional mode, the reference to the date and time of payment of the note, excludes all inference that the debt was not due when the attachment was issued. It asserts that the defendant would be indebted by note dated 9th Nov. 1840, payable 120 days after date; this-shows a debt due in March, 1841, and the affidavit is made in April of the same year;

We have not been able to perceive that there is any error in the record, and the judgment is affirmed..