
    JULIAN F. SCOTT v. JOHN WHITE.
    (S. C., Thomp. Cas., 38-39.)
    Knoxville,
    September Term, 1849.
    1. ATTACHMENTS. Ancillary or original issued by a justice returnable to circuit court.
    Since the Act of 1843-44, chapter 39 (see Shannon’s Code, secs. 5220, 5985, 5986), justices of the peace have had jurisdiction to issue ancillary attachments in aid of suits pending- in the circuit court, just as upon an original cause. [Ancillary, as well as original, attachments may be issued by a justice of the peace returnable to the circuit court. Thompson v. Carper, 11 Hum., 542.]
    2. SAME. Same. Affidavit amendable in circuit eour^.
    The same act makes express provision for amendments of attachment proceedings, and the omission to- sign the sworn affidavit for such attachment may be amended in the circuit court.
    Case cited and distinguished: Neil v. McReynolds, 8 Hum., 12.
    3. SAME. Same. Appeal lies from discharg-e of.
    An appeal will lie from an order discharging- an attachment, though it be an ancillary one. [In Younger v. Younger, 6 Pickle, 29, 30, it is said that this attachment “must have been regarded and treated, for the purposes of the appeal, as a separate proceeding, because originating- before a different tribunal,” and upon this view alone could it be sustained. The case seems to be disapproved by the court upon this point. An appeal, as a matter of right, lies only from a final decree or judgment. Notes 5, 24-28 under sec. 4890 of Code.]
    
      The plaintiff, Julian F. Scott, had a cause pending in the circuit court, and sued out an attachment in aid of the same before a justice of the peace. In doing so, he omitted by mistake to sign the affidavit on which the attachment was based, although the same was sworn to; and he requested permission to amend this defect in the circuit court, which the circuit judge refused, and thereupon discharged the attachment. From this order, the plaintiff appealed.
    In the supreme court a motion was made to dismiss the appeal on the ground that the order discharging the ancillary attachment was not a final judgment from which an appeal would lie.
   Turley, J.:

An appeal will lie from an order to discharge an attachment, although it is merely a subsidiary proceeding.

McKinney, J.:

The defect in the affidavit was amendable. The case differs from the case of Neil v. McReynolds, 8 Humph., 12, in which there was no affidavit. The act of 1843, chapter 29, makes express provision for amendments. An attachment may be issued under that act by a justice of the peace returnable to the circuit court, where there is a cause already pending, just as upon an original cause.

Motion to dismiss appeal denied, and judgment reversed.  