
    C. P. Allen vs. J. F. Fleming.
    
      Domestic Attachment — Affidavit.
    Affidavit by plaintiff that defendant “is removing or is'about to remove out of the said District of Abbeville, so tbat the ordinary process of law cannot be served upon him,” held, not to be a compliance with the Act of 1839, in reference to domestic attachments. Writ issued on such affidavit quashed.
    To authorize the attachment, there should be a precise allegation of some one of the categories which give jurisdiction, and an affidavit in the disjunctive is bad, although either of the facts deposed to might be sufficient.
    BEFORE GLOVER, J., AT ABBEVILLE, SPRING TERM, 1867.
    The report of his Honor, the presiding Judge, is as follows:
    " The plaintiff issued a domestic; attachment, and in his affidavit swore, 'that the said J. F. Fleming is removing or is about to remove out of the said District of Abbeville, so that the ordinary process of law cannot be served upon him.’
    
      “I held that the use of these words was not a compliance with the Act authorizing a magistrate to issue an attachment ; that a conformity with the language employed by the Legislature was necessary to show that the magistrate had jurisdiction; and on motion I ordered the attachment to be quashed.”
    The plaintiff, C. P. Allen, appealed, and now moved this Court to reverse the order of his Honor, the presiding Judge, quashing the attachment, on the grounds:
    1. Because the words which were held to vitiate the attachment, to wit, “ and that the said J. F. Fleming is removing or is about to remove out of the said District of Abbeville, so that the ordinary process of law cannot be served upon him,” are not in the alternative, but expressive of only one of the grounds for which attachments are issued.
    2. That if such words do express an alternative, they are not of such character as to render the attachment void.
    And he further submitted as a point which was not submitted to the Court at the hearing, nor taken as a ground of appeal, viz.:
    That the attachment could not be quashed inasmuch as the defendant had dissolved the attachment by entering special bail, giving bond for his appearance at Court, &c.; that in such case the order quashing the attachment is a nullity.
    
      Thomson, for appellant,
    cited Act 1839, 11 Stat. 18; Ball vs. Taylor, 1 McM. 460; Chev. 5 ; 10 Eich. 16; 5 Eich. 478; P. L. 366, §6. • •
    
      McGowan, contra,
    cited 4 Eich. 562.
   The opinion of the Court was delivered by

Dunkin, O. J.

The Act of 1839, 11 Stat. 27, authorizes the writ of attachment on the oath of the plaintiff that the defendant “is removing out of the district privately, or absconds and conceals himself, so that the ordinary process of law cannot be served upon him.” The terms of this affidavit do not state that the defendant “is removing, out of the district privately," nor does it state that he “ absconds and conceals himself.” The oath is that the defendant “is removing or is about to remove out of the said District of Abbe-ville, so that the ordinary process of law cannot be served upon him.”' Assuming that, on either of these conditions, the writ would be properly issued, the affidavit is fatally defective. In Devall vs. Taylor, Chev. 5, the Court say: To authorize the attachment, there should be a precise allegation of some one of the categories which give jurisdiction;” and, Judge Earle adds, “I would consider an affidavit in the disjunctive as bad, although either of the facts deposed to might be sufficient.”

The motion to reverse the order of the Circuit Court is dismissed.

Wardlaw and Inglis, J. J., concurred.

Motion dismissed.  