Blair v. Cleveland , 1 Stew. 421 ( 1828 )

JUDGE WHITE

delivered the opinion of the Court.

It is objected that it does not appear upon the record that the defendant was an inhabitant of the State at the issuance of the original writ. The principle here contended for, has already been established by this Court in case 0f Campbell against Wyatt, ^a nd was again recognized in the subsequent case of Evans against Salt-marsh, ^b decided last winter. We remain perfectly satisfied with the construction of the attachment laws on this point given in the cases above referred to. It is surely a construction which comports best with the evident design of permitting judicial attachments, and the only one which can secure the rights of foreign defendants, who may have property within this State.

But it is urged that the circumstances of the defendant having appeared, replevied the property, and demurred to the action, waives the necessity of the record shewing that he was an inhabitant of this State. This we think does not result as a conclusion from the facts admitted. For if the intention of the law was not to permit judicial attachments but as a mode of compelling the appearance of resident citizens, and if it be expedient to require their residence to appear of record before it issues, then the re-plevying of the property and pleading to the action should not dispense with this prerequisite; otherwise an inhabitant of another State who might, by the interposition of friends or otherwise, hear of and through prudence be induced to replevy his property levied on by such an attachment, would either not be permitted to defend his suit, or be placed on a different footing from other foreigners, in his defence.! This we think was not the intention of the statute or the construction heretofore given it. Indeed, in the case of Campbell against Wyatt, there must have been a replevy, for there was a plea, and therefore, the principle of that case decides this; for we can perceive no difference as to this point, whether the de-fence be in abatement or oh demurrer. In all cases it should appear as a prerequisite to the issuance of a judicial attachment, that the defendant is a resident of the State. When the election of this writ is made in term time, it can easily be made to appear by a shewing to the Court on affidavit; and should the plaintiff not conclude to elect the writ of attachment until after Court, the necessary shewing can be made by affidavit taken before some justice of the peace, and filed in the papers of the cause as a part of the record. Either of which methods we think would answer the purpose of the law. The judgement in this case must be reversed.

.Judges Crenshaw'and Perry not sitting.

a «Minor’sAiu.li,

b i Amep. 43.