Halley v. Jackson

Brent, J., delivered the opinion of the Court. Pending a motion to quash the attachment in this case, leave was asked by the plaintiff to be allowed to amend the proceedings, by striking out the name of one of the defendants, J. Fenwick Young, “where it appears in the affidavit of the plaintiff, in the warrant of the justice of the peace directing the clerk to issue the writ, in the writ of attachment, and in all the proceedings in the case, so that by said amendment all the proceedings will show and read as a proceeding against Joseph N. Young alone, and as if the name of J. Fenwick Young had not been written and appeared there.” Sections 23 and 27 of Art. 75 of the Code, in relation to amendments and the misjoinder and nonjoinder of defendants, cannot be understood as embracing the amendment here asked for. The affidavit before a notary, and the warrant of the justice to the clerk are from a jurisdiction separate from that of the Circuit Court, and the latter can exercise no power of amendment over them. They lie at the foundation of the proceeding in attachment, which must be strictly followed because the remedy is a statutory one, and if defective, the whole proceeding must fail.

If the Circuit Court were to exercise the power of amending the affidavit, so as to accommodate it to the circumstances and facts developed in the progress of a case of attachment, it would cease to be a condition precedent in that form of proceeding, and inconsistent with the spirit and object of the law requiring it to be made by the plaintiff. If it could be amended in one important respect, it might also in another, until its whole character was changed, and the party affiant made to appear as presenting a state of facts different from those actually