Atlantic Bank v. Frankford, 61 N.C. 199, 1 Phil. 199 (1867)

Jan. 1867 · Supreme Court of North Carolina

61 N.C. 199, 1 Phil. 199

THE ATLANTIC BANK OF NEW YORK v. SIMEON FRANKFORD.

An affidavit amended by order of the court must be re-sworn to afteiamendment, or it will be considered as no affidavit.

Original Attachment, before Buxton, J., at Fall Term, 1866, of Rowan Superior Court, upon a motion to quash.

The view taken bj the court renders it necessary to state only that the plaintiff was a corporation, chartered in New York, and had sued out an attachment agaidst the effects of the defendant, making affidavit that the latter “is a nonresident of the State, or so absconds or conceals himself,” &c. This attachment was returned to Spring Term, 1866, of Rowan Superior Court, and at Fall Term, 1866, upon motion by the plaintiff, the words, “ is a non-resident of this State,” above, were stricken out.

Before the amendment was allowed, the defendant had moved to quash the attachment, and afteiq such allowance, this motion was overruled. Thereupon the defendant appealed.

Boyden and Bailey, for the plaintiff.

Blaclcmer and McGorlde, for the defendant.

Reade, J.

The plaintiff’s counsel moved to amend the affidavit by striking from it certain words, and the court allowed the motion.

It does not appear that it was sworn to again after it was thus amended. It was then no affidavit at all, and the plaintiff could not be convicted of perjury, if, as amended, it be false. The case stands then as if there were no affidavit. An original attachment, without an affidavit to support it, is irregular, and may be quashed on motion.

There is error in the refusal to quash.

Per Curiam. Judgment reversed.