Deupree vs. Eisenach.

No. 107.-WILLIAM H. DEUPREE, plaintiff in error, vs. JoHN EISENACH, defendant.

[1.] Where an attachment was sued out by the attorney of the creditor, who stated in his affidavit, that he was "informed and believed" that the debtor resides out of this State: Held, that the affidavit was not sufficient, and that the affidavit ought to have stated, in the words of the Statute of 1799, that his debtor resides out of this State."

Attachment, in Oglethorpe Superior Court. Judge BAXTER, April Term, 1851.

Decision by

The attachment in this case was sued out by Edward C. Shackelford, as the attorney of William H. Deupree. The affidavit stated, that deponent "was informed and believed that defendant resided out of the State, so that the ordinary process of law could not be served upon him."

On motion, the Court dismissed the attachment, on the ground that the affidavit was insufficient, because the deponent did not swear, positively, as to the non-residence of defendant.

This decision is assigned as error.

THOMAS R. R. COBB, for plaintiff in error.

JOSEPH H. LUMPKIN, Jr. for defendant in error.

Judge LUMPKIN did not preside during the argument and decision of this case.

By the Court.-WARNER J. delivering the opinion.

[1.] By the 2d section of the Act of 1799, an attachment is authorized to issue upon complaint made on oath by the creditor, that his debtor resides out of this State. Here the party suing out the attachment states, in his affidavit, that he is "informed and believes" that his debtor resides out of the State. The Act of 29th December, 1836, relates to the indebtedness of the de

Deupree vs. Eisenach.

fendant, and not to his residence. In Levy vs. Milman et al. (7 Ga. R. 170,) we held, that inasmuch as the process of attachment was a summary remedy given by Statute to the creditor, that it must be construed strictly. The argument is, that the Court ought to relax the rule, because agents and attorneys cannot swear positively as to the residence of the debtor, but only as to their information and belief. The Legislature have thought proper to relax the rule in regard to the indebtedness, but have not done so as it regards the residence of the debtor; and until the Legislature shall interfere, we feel constrained to adhere to the words of the Statute.

Let the judgment of the Court below be affirmed.

INDEX.

ABATEMENT OF ACTIONS.

1. The old Common Law maxim, that a personal right of
action dies with the person, still applies where a tort is
committed to a man's person, feelings or reputation, as
for assault, libel, or seduction of daughter. Brawner vs.
Sterdevant, Adm'r...

ADMINISTRATORS, EXECUTORS, &c.

1. An executor may bring ejectment to recover lands, but
his right to recover depends upon the will, and that must
be produced, as a part of his title. Sorrell, Ex'r, vs.
Ham and another....

2. A grant in letters testamentary, to administer the goods
and chattels, rights and credits of the testator, gives au-
thority to administer the will also, as to the lands. Ibid.

69

55

3. A bond by an administrator to convey real estate of
his intestate, in contemplation of a sale under the Or-
dinary's order is void, and is incapable of being enforc-
ed, either at Law or in Equity, as contrary to the policy
of the Statute authorizing administrators to sell the real
estate of their intestate. Logan vs. Gigley........ .... 114

4. Letters of administration must be granted at the next
term of the Court, immediately succeeding the publica-
tion of the thirty days' notice of the applicant and cita-
tion by the Clerk, unless the application is regularly con-
tinued by the action of the Court, from term to term, and

VOL. IX 76

then the parties in interest are bound to take notice of
such continuance. McGehee vs. Ragan......

.... 135

5. According to the provisions of the Act of 1838, the
widows and orphans of testators and intestates are enti-
tled to a reasonable support and maintenance out of
their estates, for the space of twelve months immediately
after the death of such testator or intestate, whether their
estates be solvent or insolvent. Hopkins vs. Lang, Ex'r.. 261
6. For the purpose of marshaling the assets of an insol-
vent estate, the executor or administrator may file his
bill and obtain a decree, not only for the purpose of re-
ducing the property into money, but also of ascertaining
the order in which the debts are to be paid. The Macon
& Western R. R. Co. vs. Parker................

7. An administrator with the will annexed, has no au-
thority to administer upon any portion of the estate of
the testator not disposed of by the will. Harper, Adm'r,
vs. Smith.......

8. The mode of procuring letters dismissory specified.
Loyless and Wife vs. Rhodes and another, Ex'rs....

9. An executor postponing a settlement with one of the
legatees under false pretences, and finally delivering over
the entire estate to the other legatees, will not be pro-
tected by his letters of dismission. It is a fraud in
fact, which will vitiate his discharge. Ibid.

377

461

547

See Charge of the Court, 3, 4. Limitation of Actions.