Lee v. Peters ( 1843 )

Mr. Justice Clayton

delivered the opinion of the court.

These three cases of attachment all depend upon the same point, and have been submitted together. They were quashed upon motion in the court below, and brought by writ of error to this court.

Every ground relied on in support of the motion to quash, except one, has already been decided by this court, in the case of Lindner v. Aaron Nelson, 5 How. 586. That case decides against the objections, and, so far as it goes, shows that these attachments should have been sustained.

The remaining objection grows out of the form of the affidavit ; and the part excepted to, is in these words : “ that the said Jacob Peters is about removing himself out of the limits of said State, so that the ordinary process of law cannot be served upon him.” The words'of the statute in reference to the point in controversy, are, “if any creditor-shall complain on oath that his or her debtor hath removed', or is removing out of the State, so that the ordinary process of law cannot be served.” In a subsequent section, in which the form of the attachment is given, these words occur: “ and oath having also been made that the said C. D. hath removed, or is about to remove himself out of this State.” The objection is, that the oath in this case, does not pursue the precise language of the statute, and that the departure is such as to justify quashing the whole proceedings. The only difference between the oath taken and that prescribed in the form of the attachment, is the substitution of the present participle for the infinitive mood of the same verb. The sense, to our comprehension, is so nearly the same, that we should be at a loss to draw the distinction between them. Unless there is some magical effect to be attributed to the very terms used in the statute, we do not see that the variance pointed out, can affect the legality of the proceedings. See the case of Frost v. Cook, determined at the last term of this court.

The judgment of the court below in all the cases, is reversed.