EVANS v. HUDSON, 1 Del. Cas. 198 (1798)

Wilson’s Red Book, 213

ENOCK EVANS v. ANNANIAS HUDSON.

Court of Common Pleas, Court of Delaware.
November, 1798.

Page 199

This was a foreign attachment issued on affidavit. The words are:

Enock Evans v.
Annanias Hudson.
Attachment. Debt £7.10.0. Now, to wit, April 24, 1798, the plaintiff made oath in due form of law that the defendant is justly indebted to him in the sum of forty shillings and upwards, lawful money of the State of Delaware and avoids coming into this government to defraud his creditors as it is said and believed.
Enock Evans Sworn before N. Mitchell, Prothonotary

Wilson [for plaintiff].

Ridgely, for defendant, moved to quash the attachment, because the affidavit does not pursue the Act of Assembly, the words of which are, [1 Del.Laws] 468: “That the said defendant is justly indebted to the plaintiff in the sum of forty shillings and upwards and avoids coming into this government lest he or she be taken to answer his or her just debts as it is believed.” The affidavit has it “to defraud his creditors,” in the act it is “lest he or she be taken to answer his or her just debts,” which he said was a fatal variance.

Wilson for plaintiff. This variance is not material, for the design of the Act is that it be sworn that defendant avoids coming into the government on the account of his creditors, which is sworn to in this case. But at all events, the court will not suffer defendant before appearance to object to their proceedings. If the defendant is not in court, he cannot be heard by counsel, and the court will not ex officio inspect the affidavit, for thereby also plaintiff may lose his debt.

BASSETT, C. J.

The affidavit is not the one directed in the Act, and we are bound to take notice of the proceedings. The attachment ought not to have issued upon this affidavit and therefore it must be quashed.

Page 200