Garmon v. . Barringer
Supreme Court of North Carolina
This was an action of assumpsit, instituted in the County Court of Cabarras, by original attachment. The plaintiff gave the usual bond for prosecution, in which he was joined by one Miller, as his surety. The writ stated the oath of the plaintiff, that the defendant was an inhabitant of another state. But the affidavit returned set forth only the amount of the debt.
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This was an action of assumpsit, instituted in the County Court of Cabarras, by original attachment. The plaintiff gave the usual bond for prosecution, in which he was joined by one Miller, as his surety. The writ stated the oath of the plaintiff, that the defendant was an inhabitant of another state. But the affidavit returned set forth only the amount of the debt. The defendant replevied the estate attached, and pleaded non assumpsit; on which issue was joined, a trial had, and a verdict and judgment given for the plaintiff; from which the defendant appealed to the Superior Court. On the…
1Opinion of the Court
Ruffin, Chief Justice,
having stated the case as above, proceeded as follows: — In the opinion of this Court, there is no error on either of the points made in the exceptions.
The failure of the plaintiff to entitle himself to the particular writ, ^ making an affidavit to the foreign residence of the defendant, cannot be taken advantage of now, according to the rule, that objections to the process are waived by a plea in bar. Besides that, the 26th section of the act of 1777 (1 Rev. Stat. c. 6, sec. 3,) provides particularly, that if an attachment be issued without bond and affidavit taken and…
2Cited by1 opinion
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