Gunby v. Porter

Briscoe, J., delivered the opinion of the Court. The appellant sued out an attachment in the Circuit Court of Wicomico County against the defendant, William F. Causey, a non-resident of the State of Maryland, and attached certain goods in the hands of the appellee as garnishee. The garnishee was summoned, and at the trial moved to quash the attachment, because of the insufficiency of the affidavit. There were other reasons assigned in support of the motion to quash, but it is not material that they should be considered here.

The motion was sustained, and from the judgment entered in the case this appeal has been taken. It is contended that the affidavit is defective, because it does not sufficiently aver the jurisdictional fact of the non-residence of the defendant. In the affidavit whereon ⁴⁰⁴ the attachment was issued, the plaintiff avers that the defendant, not being a citizen of the State of Maryland, and not residing therein, is justly and bona fide indebted -, and the Clerk of the Court, before whom the affidavit was made, certifies that the plaintiff made oath that the defendant is' not a citizen of the State of Maryland, and doth not reside therein. And it is urged that this affidavit is defective, because it fails to set forth the precise words of the statute, that the plaintiff “ knows, or is credibly informed and verily believes that the defendant is not a citizen of the State, and that he doth not reside therein.” Code, Art. 9, sec. 4.

Now there can be no doubt that proceedings under our attachment laws against the property of an absent debtor is a special remedy conferred by statute, and must be followed in the manner pointed out by the statute, but a substantial compliance is all that is held to be necessary. One of the jurisdictional facts necessary to appear in the affidavit as the foundation of the attachment, is the non-residence of the defendant. In this case we have the positive and affimative oath by the plaintiff, that the defendant is a non-resident, which we think not only substantially