Hinman v. Swift
Supreme Court of Vermont
Audita Querela. It was alleged in the complaint, in substance, that the defendant had heretofore caused a writ of attachment, in his favor, to be served upon the complainant, returnable on the tenth day of March, 1845, at nine o’clock in the forenoon, at the office of Sargeant and Fowler in Manchester; that the complainant attended, with his counsel, at the time and place specified, but that the justice of the peace, before whom the writ was returnable, was absent; that the…
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Audita Querela. It was alleged in the complaint, in substance, that the defendant had heretofore caused a writ of attachment, in his favor, to be served upon the complainant, returnable on the tenth day of March, 1845, at nine o’clock in the forenoon, at the office of Sargeant and Fowler in Manchester; that the complainant attended, with his counsel, at the time and place specified, but that the justice of the peace, before whom the writ was returnable, was absent; that the plaintiff thereupon carried the writ to the dwelling house of another justice of the peace, and there, in the absence of…
1Opinion of the Court
*319The opinion of the court was delivered by
Bennett, J.
The first question to be considered arises upon the defendant’s motion to dismiss. It is claimed, that the complaint was allowed and signed without any sufficient affidavit that the facts set forth' in it were true. It is said, that the affidavit must be appended to and become a part of the complaint. The provision of the statute is, that no writ of audita querela shall be állowed and signed, without affidavit first made by the complainant, or his agent, or attorney, that the facts set forth in such writ are true, and that he believes the…
2Cases cited1 opinion
- Crawford v. CheneySupreme Court of Vermont · 1840
3Cited by2 opinions
- Hall v. ParkerMichigan Supreme Court · 1877
- Pinney v. PettySupreme Court of Vermont · 1874