Blake v. Hawkes

Foreign attachment. — On the return of the writ, the defendant moved to set it aside, on the ground that he was in the State at the time it was issued, and submitted affidavits to this effect, which were not controverted. His Honor refused the motion, on the ground that the fact was not admitted, and the Court was not competent to try such an issue. On appeal to this Court, it was held, on the authority of the case of Degnan ads. Wheeler, 2 N. & M’C. 323, that if there be a sufficient showing by affidavit that the defendant was within the State at the time the attachment was levied, it may be set aside on motion. That although in a case where the fact is doubtful the Court would not interfere, ( as in Shrewsbury v. Peareson, 1 M’C. 331,) yet, as in the present case, where the fact is not denied by any counter showing, it will be regarded as true and the attachment be set aside — -that this is distinguishable from the case of a domestic attachment, which is granted on the plaintiff’s oath, the truth of which it would bo difficult if not impossible to try upon affidavits.

Motion granted.