{ "id": 2090181, "name": "JAMES P. LEAK v. JOHN T. MOORMAN", "name_abbreviation": "Leak v. Moorman", "decision_date": "1867-01", "docket_number": "", "first_page": "168", "last_page": "171", "citations": [ { "type": "nominative", "cite": "1 Phil. 168" }, { "type": "official", "cite": "61 N.C. 168" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "2 Dev. & Bat., 502", "category": "reporters:state", "reporter": "Dev. & Bat.", "case_ids": [ 11276377 ], "opinion_index": -1, "case_paths": [ "/nc/19/0502-01" ] }, { "cite": "1 Dev. 397", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 8694574 ], "opinion_index": -1, "case_paths": [ "/nc/12/0397-01" ] }, { "cite": "2 Dev. & Bat., 502", "category": "reporters:state", "reporter": "Dev. & Bat.", "case_ids": [ 11276377 ], "opinion_index": 0, "case_paths": [ "/nc/19/0502-01" ] }, { "cite": "1 Dev. 397", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 8694574 ], "opinion_index": 0, "case_paths": [ "/nc/12/0397-01" ] } ], "analysis": { "cardinality": 317, "char_count": 5660, "ocr_confidence": 0.439, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.07491151028496255 }, "sha256": "7b79895ed5ed6ce0fdce11751bd89c8af5a2be818e11561fd9bf6528ca10f3a4", "simhash": "1:8fb9b5476c2adb48", "word_count": 1002 }, "last_updated": "2023-07-14T20:18:16.220923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES P. LEAK v. JOHN T. MOORMAN." ], "opinions": [ { "text": "Battle, J.\nIn The State Bank v. Hinton, 1 Dev., 397, it was said by the court, in speaking of the attachment law, that \u201cthere is no law in the statute book which more imperiously demands a strict construction; for the property of an absentee may be all sold upon an attachment wrongfully sued out, before he is apprised of the proceeding, and, if he then should discover that no bond and affidavit were taken and returned, his remedy must at best be .very imperfect.\u201d\nThe plea in abatement, filed by the defendant in the present case, does not aver that no bond and affidavit had been, taken and returned to court, as required by the Rev. Code,, ch. 7, sec. 3; but that no such bond and affidavit had been taken and returned as entitled the plaintiff to sue out an attachment against the defendant. The defect is alleged to be in the affidavit, and it must be inferred from what was said by the court in Gorman v. Barringer, 2 Dev. & Bat, 502, Evans v. Andrews, 7 Jon., 117, Cherry v. Nelson, Ibid,. 141, that a plea in abatement is the proper mode for takings advantage of it. It is manifest that the same policy which requires a strict construction of the statute in relation to the taking and return of the affidavit and bond must likewise require that such affidavit and bond shall be sufficient in law to authorize the extraordinary remedy of attachment.\nThe alleged defects in the affidavit are: first, that the plaintiff does not swear positively that the defendant had removed himself out of the county, or was absent from the county and State, so that the ordinary process of law could not be served'upon him; and, secondly, that such removal or absence is not stated in the terms required by the statute. As to the sufficiency of the first objection it is unnecessary for us to decide, because we think that the second is certainly fatal to proceeding. The first section of the act requires that a person, who proposes to take out an attachment against the property of a debtor, shall swear to either one of three things, to wit: that he hath removed or is privately removing himself out of the county; or absents himself from the county or State; or conceals himself, so that the ordinary process of law cannot be served on him.\nHere it is manifest that the removal from the county, or the absence from the county or State, or the concealment, must be an act of the party done for the purpose of avoiding the service of the ordinary process of the law; and that fact must be sworn to by the plaintiff. If he swear to\u2019 two or more of these acts m the alternative, each must be substantially in the terms required by the statute; otherwise he might obtain an attachment upon a ground which the law has not sanctioned. Of this the present case fur. nishes a striking instance. The affidavit is that the defendant \u201c hath removed himself out of the county, or is absent from the county and State, so that the ordinary process of law cannot be served upon him.\u201d Here it is apparent that neither of the alternative acts meet, either literally or substantially, the requirement of the statute. A mere removal from the county, wdthout its being done privately, is not a sufficient cause for an attachment; nor is a mere absence from the county and State, without any design of evading process. And yet the terms used, upon which the attachment was issued, do not imply either a wrongful removal or absence. This defect cannot be aided by the inference, \u201c so that the ordinary process of law cannot be served on him.\u201d That inference must follow legitimately from the facts stated, and cannot supply the '\u2019omission of the statement of the facts themselves.\nIt is obvious, thei^fore, that the affidavit is fatally defective, and the plea in abatement was on that account properly sustained.\nPer Curiam. Judgment affirmed.", "type": "majority", "author": "Battle, J." } ], "attorneys": [ "Phillips & Battle, for the complainant.", "Leitch, for the defendant." ], "corrections": "", "head_matter": "JAMES P. LEAK v. JOHN T. MOORMAN.\nThe statute upon attachment must be construed strictly.\nA plea in abatement is the proper mode of taking advantage of a defect in the affidavit for an attachment.\nThe creditor\u2019s affidavit under c. 7, s. 1, Rev. Code, must state that the removal or the absence from the county or State, or the concealment, on the part of the debtor, was for the purpose of avoiding service of ordinary process.\n(State Bank v. Hinton, 1 Dev. 397, Gorman v. Barringer, 2 Dev. & Bat., 502, Evans v. Andrew, 7 Jon., 117, and Cherry v. Nelson, 7 Jon., 141, cited and approved.)\nOriginal Attachment, tried before Gilliam, J., at Fall Term, 1866, of the Superior Court of Richmond.\nThe attachment was issued April 16th, 1866, by a justice of the peace, returnable to the Fall Term of the Superior Court. The affidavit made by the plaintiff stated \u201cthat he (the plaintiff) hath good reason to believe that the said Moorman hath removed himself out of the county, or is absent from the county or State, so that the ordinary process of law cannot be served on him.\u201d Bond was given in double the amount oi the debt, was in the usual form and conditioned for the payment to the defendant of all damages he might incur from a wrongful suing out of the attache ment.\nThe skerifflevied the \u00e1ttachmentupon the defendant\u2019s land. Upon its return to court the defendant appeared, filed a bail bond and pleaded in abatement to the affidavit and bond of the complainant, that the justice did not take and return such affidavit and bond as entitled the complainant to an attachment, and that the complainant did not make such affidavit or give such bond, &c.\nUpon joinder of issue the plea was sustained and his Honor ordered the proceedings to be quashed.\nPlaintiff appealed.\nPhillips & Battle, for the complainant.\nLeitch, for the defendant." }, "file_name": "0168-01", "first_page_order": 176, "last_page_order": 179 }