Atlantic Bank v. Frankford , 61 N.C. 199 ( 1867 )

The view taken by the court renders it necessary to state only that the plaintiff was a corporation, chartered in New York, and had sued out an attachment against the effects of the defendant, making affidavit that the latter "is a nonresident of the State, or so absconds or conceals himself," etc. This attachment was returned to Spring Term, 1866, of Rowan Superior Court, and at Fall Term, 1866, upon motion by the plaintiff, the words, "is a nonresident of this State," above, were stricken out.

Before the amendment was allowed, the defendant had moved to quash the attachment, and after such allowance this motion was overruled. Thereupon the defendant appealed. The plaintiff's counsel moved to amend the affidavit by striking from it certain words, and the court allowed the motion.

It does not appear that it was sworn to again after it was thus amended. It was then no affidavit at all, and the plaintiff could not be convicted of perjury if, as amended, it be false. The case stands then as if there were no affidavit. An original attachment, without (200) an affidavit to support it, is irregular, and may be quashed on motion.

There is error in the refusal to quash.

PER CURIAM. Judgment reversed.

Cited: Sheldon v. Kivett, 110 N.C. 411; S. v. Norman, ibid., 488;Brown v. Rhinehart, 112 N.C. 775.