Laws

The attachment will be upheld Post Date: Sat, 2 Aug 2008 17:06:54 +0000
In an affidavit to pro- cure an attachment the elements of positiveness as to knowledge, information, or belief, separately or altogether, required by stat- ute, must be substantially included in its terms, or it will be fatally defectiv e 3 an affidavit alleging that the defend- ant was "about to convey his prop- erty so as to hinder or delay his cred- itors," was held sufficient without the use of the word " defrau d" Curtis v Settle, 7 Mo 452 See also Luttrellz'. Martin, 112 N Car 593 1 Kennon v Evans, 36 Ga 89; Irvin v Howard, 37 Ga 18; McCol- lem v White, 23 Ind 43 2 Lawver v Langhans, 85 111 138; Rosenheim v Fifield, 12 III, App 302; Prins -v Hinchliff, 17 111 App 153; Ruhl v Rogers, 29 W Va 779 One Sufficient. The attachment will be upheld if he sustains one of them, McCollem v White, 23 Ind 43; or if the defendant leaves one of the causes of attachment ujicontested, Keith v Stetler, 25 Ka N 100 See also Dunlap v McFarland, 25 Ka N 488 Neither Ground Supporte d But an attachment will be quashed where the affidavit alleges one or more of several statutory grounds, none of which is supported by the evidence, although there is strong evidence in support of another ground not alleged in the affidavit.

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Stadler i Post Date: Sat, 2 Aug 2008 16:51:23 +0000
Dumay v Sanchez, 71 Md 508 Inconsistenc Y If the grounds for the attachment stated in the affidavit are inconsistent and contradictory, the affidavit will be defectiv e Drake on Attachment, 101 But allegations that defendant has property not exempt from execution, and that he has disposed of all his property, etc, are not necessarily inconsistent. Holloway v Herryford, 9 Iowa 353 Nor is an affidavit stating that de- fendant has assigned, secreted, etc, and is about to assign, etc Nelson v Munch, 23 Min N 229 See also Auerbach v Hitchcock, 28 Min N 73 Contra, Dunnenbaum v Schram, 59 Tex 281; Carter v Younger, 2 Tex Un Rep Ca S 445; Pearre -v Hawkins, 62 Tex 434; Hale v Prote, 75 Hun ( N Y) 13- And in Hinds v Fagebank, 9 Min N 68, an affidavit that the defendant " is about to dispose thereof, and has in fact made a sale thereof," was held contradictory, and therefore ba d See also Smith v Baker, 80 Ala 318; Cleveland v Boden, 63 Tex 103; Tan- ner, etc, Engine Co v Hall, 22 Fla 391; Neal v Gordon, 60 Ga 112; Kru- tina -v Culpepper, 75 Ga 602 3 Ross v Steen, 20 Fla 443 Thus where the statute requires that the in- debtedness shall be directly stated, it is not sufficient to allege that affiant is "informed and believes," Ross v Steen, 20 Fla 443; Dyer v Flint, 21 111 80; Booth v Rees, 26 111 45; Archer v Claflin, 31 111 306; Adams v Merritt, 10 111 App 275; Prins v Hinchliff, 17 111 App 153; Winkler v Barthel, 6 111 App in; Crayne v Wells, 2 111 App 574; White v Wilson, 10 111 21; Wilson v Arnold, 5 Mich 98; Hale v Chandler, 3 Mich 531; Murphy v Purdy, 13 Min N 422; Ely v Titus, 14 Min N 125; Morrison v Lovejoy, 6 Min N 183; Pierse v Smith, i Min N 82; Williams v Martin, i Mete (Ky) 44; Deupree v Eisenach, 9 Ga 598; Ex p Haynes, 18 Wen d ( N Y) 611; Cadwell v Col- gate, 7 Barb ( N Y) 253; Clowser v Hall, 80 Va 864; or that he verily be- lieves, Greene v Tripp, n RI 424 But see McNamara -v Ellis, 14 Ind 516 Where the statute required the plaintiff to swear that he " verily be- lieves," an affidavit "to the best of his knowledge and belief " was held insufficient. Stadler i.

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And the sources of information Post Date: Sat, 2 Aug 2008 16:32:38 +0000
Parmlee, 10 Iowa 23 And see, in general, Ritten- house v Harman, 7 W Va 380; Cobb v Force, 6 Ala 468; Stevenson v Robbins, 5 Mo 18; Hunt v Strew, ?} Mich 368; Trew v Gaskill, 10 Ind 265; Creasser v Young, 31 Ohio St 57; Nelson v Fuld, 89 Tenn 466; Globe Yarn Mills v Bilbrough (City Ct), 21 N Y Supp 2, 2 Mis C Rep (3) Disjunctive Statement S The allegations of the affidavit must be specific and clear, and this rule is not observed unless the ( N Y)ioo; Brown v Keogh (City Ct), I4 N Y Supp 915; Bump v Danehy, 59 Hun ( N Y) 619; Butterworth v Boutilier, 67 Hun ( N Y)6so; Selser z/ Potter Produce Co, 77 Hun ( N Y) 313; National Broadway Bank z/ Bark- er, 61 Hun ( N Y)625; Curwensville Mfg Co v Bloom, 10 Pa Co Ct Rep 295; Trautmann v Schwahn, 80 Wi S 275; Dinkelspiel v New Albany Woolen Mills, 46 La An N 576 Affiant's statement that he "verily believes " is insufficient where the statute requires the affidavit to state the fact, Helman v Fowler, 24 Ark 235; Sannoner v Jacobson, 47 Ark 31; Landfair v Lowman, 50 Ark 446; holding, however, that the defect be- ing amendable under the Arkansas statute, the objection cannot be taken for the first time on appeal, Nelson v, Fuld, 89 Tenn 466, overruling Lester v Cummings, 8 Humph (Tenn) In Georgia the grounds of attach- ment must be stated distinctly as within the affiant's knowledg e Mein- hard v Neill( Ga, 1890), 168 E Rep 613; The Chronicle Constitutionalist v Rowland, 72 Ga 195; Brown v Massman, 71 Ga 859; Gazan v Royce, 78 Ga 512 Kansa S In Campbell v Hall, i Ka N 488, a statement "that affiant has reason to believe and does be- lieve" was held insufficient to satisfy the statut e In North Carolina an affidavit of cer- tain facts on information and belief is expressly sanctioned by statute, and it has been held that the sources of the information need not be state d Hess v Brower, 76 N Car 428; Gas- hine v Baer, 64 N Car 108 In Sonth Carolina the affidavit " must contain an allegation of the existence of one or more of the conditions pre- scribed in the Attachment Act, or of facts from which they may be inferred, resting upon the knowledge of the affiant, or of some one else, as the source of the information," Wando Phosphate Co v Rosenberg, 31 S CaR301; Myers v Whiteheart, 24 S CaR196; and the facts stated must be such as, if true, would be sufficient prima facie to warrant the belief, Ivy v Caston, 21 S Car 588; Claussen v Fultz, 13 S Car 476; Baum v Bell, 28 S Car 201; Kerchner v McCor- mac, 25 S Car 461 In New York the statement of the grounds for the attachment may be made upon information and belief, al- though the code does not expressly allow it, Buell v Van Camp, 119 N Y 160; Murphy v Jack, 142 N Y 215; Bennett v Edwards, 27 Hun ( N Y) 352; holding that when the party hav- ing positive knowledge of the facts refuses to make an affidavit, the plain- tiff is not obliged to procure an order under section 885 of the code requiring him to appear before a referee and submit to an examination, Ketchum v Vidvard, 4 Thom P C ( N Y) 138; Belden v Wilcox, 47 Hun ( N Y) 331 But where the fact is so averred, the sources of the information and the grounds of the belief must be stated, so that the judicial officer to whom the affidavit is presented may judge whether the information and belief have a proper basis to rest o N Murphy v Jack, 142 N Y 215; Buell v Van Camp, 119 N Y 160; Crowns v Vail, 51 Hun ( N Y).2O4; Marine Nat Bank v Ward, 35 Hun ( N Y) 395; Hingston v Miranda, 12 Civ Pro Rep ( N Y Supreme Ct) 439; Geneva Non-Magnetic Watch Co v Payne (Supreme Ct), 5 N Y Supp 68; Manu- facturers' Nat Bank v Hall, 60 Hun ( N Y) 466; Matter of Faulkner, 4 Hill ( N Y)5g8; Ex p Robinson, 21 Wen d ( N Y) 672; Empire Warehouse Co v Mallett (Supreme Ct), 32 N Y Supp 861; King v Southwick, 66 Ho W Pr ( N Y C P I) 282; Ellison v Bernstein, 60 How Pr ( N Y Su- preme Ct) 145; Appleton v Speer (SupeRCt), 6 N Y Supp 511 (see the sequel to this case, Ahlhauser v Butler, 57 Fed Rep 121). And the sources of information so disclosed must be such that a person of reasonable prudence would be will- ing to accept and act upon the knowl- edge derived therefro M Buell v Van Camp, 119 N Y 160 The rule thus laid down by the Court of Appeals is exemplified in the following cases: Cribben v Schillin- ger, 30 Hun ( N Y) 248; Buhl v Ball, 41 Hun ( N Y) 61; Newwitter v Man- sell (Supreme Ct), 38 N Y St Rep 595; Hill v Bond, 22 How Pr ( N Y Supreme Ct) 272; Ellison v Bern- affiant states definitely the particular ground or grounds upon which he relies to secure the remed Y While, therefore, the affi- stein, 60 How Pr ( N Y Supreme Ct) 145; Belden v Wilcox, 47 Hun ( N Y) 331; McCulloh v Aeby (Su- preme Ct), 9 N Y Supp 361; James v Richardson, 39 Hun ( N Y) 399 Information by Telephon e In Murphy v Jack, 142 N Y 215, an at- tachment had been granted upon affi- davit of plaintiff's attorney, made upon information and belief, the grounds for belief being, as therein' alleged, the statements of the plaintiff and his counsel who were in Boston, and who, as the affidavit stated, " have both talked to deponent this morning over the telephone from Bosto N" It was not stated and did not appear that the affiant was acquainted with the plaintiff and recognized his voice, or in any other way had positive informa- tion that it was the plaintiff who was talking to hi M It was held that the affidavit was insufficient.

Autor of the post: Undefined

So an affidavit Post Date: Sat, 2 Aug 2008 16:15:05 +0000
The court conceded, however, that the necessary information may be communicated by telephone, and based its decision solely upon the absence of any averments to identify the person speakin g Sources of Informatio N Where the statements in the affidavit are posi- tive, but it is evident that the affiant does not have actual knowledge or cannot be presumed to know, he must set forth the sources of his informa- tion, and these must be satisfactory, as stated above, Kokomo Straw-Board Co v Inman, 53 Hun ( N Y) 39; Thomas v Dickinson (Supreme Ct), 33 N Y St Rep 786, u N Y Supp 436; holdingalso, that where the affiant states transactions positively as being within his knowledge, when it can be seen that he does not possess that knowledge, it is a circumstance which subjects the truthfulness of his state- ments in other respects to grave doubts, Jordan v Richardson, 7 Civ Pro Rep ( N Y Supreme Ct) 411 Presumption of Knowledg e A cashier of a bank is presumed to be acquainted with the financial affairs of the cor- poration, and he need not give the sources of his information in support of the positive statement in his affi- davit that a certain sum is du e Na- tional Park Bank v Whitmore, 40 Hun ( N Y) 499 And the president of a corporation is likewise presumed to have knowledge of such fact S Manufacturers' Nat Bank v Hall, 60 Hun ( N Y)466 And it will not be inferred that mat- ters positively sworn to by the plain- tiff Mmself are not within his personal knowledge, unless it is apparent that the possession of such knowledge is an impossibilit Y Doctor v Schnepp, 7 Civ Pro Rep ( N Y City Ct) 144; James v Richardson, 39 Hun ( N Y) 399- " Over and above All Counterclaims," etc As to the sufficiency of a state- ment in an affidavit that the indebted- ness is "over and above all counter- claims," etc, as required by the code, see Jordan v Richardson, 7 Civ Pro Rep ( N Y Supreme Ct)4ii; National Park Bank v Whitmore, 40 Hun ( N Y) 499; First Nat Bank v Bushwick Chemical Works (Supreme Ct), 5 N Y Supp 824; Butterworth v Boutilier (Supreme Ct), 22 N Y Supp 872; Hart -v Bernau (Supreme Ct), 22 N Y Supp 296; Acker v Jackson, 3 Ho W Pr, N S ( N Y Supreme Ct), 160; Mojarrietta v Saenz, 80 N Y 551; Bates v Pinstein, 15 Abb N Ca S ( N Y City Ct) 480; Smith v Arnold, 33 Hun ( N Y) 484; Mallary v Allen, 15 Abb N Ca S ( N Y City Ct) 338; Lee v Co-operative L RAsso C (Supreme Ct), 19 N Y St Rep 879 Agents and Attorney S Where the statute places no restrictions on an affidavit made by an agent or attorney, it has been held sufficient for him to swear " to the best of his knowledg e" Walker v Barrelli, 32 La An N 467; Bridges v Williams, i Martin, N S ( La) 98 See also Sioux Valley State Bank v, Kellogg (Iowa, 1890), 46 N W Rep 859; and an averment " upon information and belief derived from and founded upon the written admis- sions of the defendant;" Howell v Kingsbury, 15 Wi S 272 See also Mitchell v Pitts, 61 Ala 219 But if the statute require the agent or attorney to swear positively, an affidavit in any other form is ba d Dyer v Flint, 21 111 80; Adams v Merritt, 10 111 App 275; Stowers v Carter, 28 Ga 351; Deupree v Eisen- ach, 9 Ga 598 Thus, where the stat- ute required that the affidavit should be that "the plaintiff kn^ws or be- lieves," etc, an affidavit made by the clerk of the plaintiff, that "he " (the davit may state as many grounds of attachment as the statute allows, it will be defective if it states two or more of them dis- junctively, 1 where any of the grounds would have been sufficient for the attachment had they been stated singly or united by the conjunction " and," 2 unless the disjunctive is used, not to connect clerk) " knows or has good reason to believe " was held defective, Dean v Oppenheimer, 25 Md 368; as was an allegation " to the knowledge of the deponent" instead of " to the knowl- edge of the plaintiff," Murray v Hankin, 30 Hun ( N Y) 37 But see Billwiller v Marks, 21 Civ Pro Rep ( N Y City Ct) 162 An affidavit by an agent that the debt is due, as hebelieve Sis insufficient where the statute requires him to swear to the best of his knowledge and belief Bergh v Jayne, 7 Martin, N S ( La) 610 In Wisconsin an affidavit made by the attorney or agent of the plaintiff, and which states positively the amount due, need not state the sources or means of information, Rice v- Mor- ner, 64 Wi S 599; Anderson S Wehe, 58 Wi S 615; the latter case ex- pressly leaving the question unde- cided whether the rule should be dif- ferent where the affidavit is made on information and belief 1 Alabama Johnson v Hale, 3 Stew p (Ala) 331; Cannon v Logan, 5 Port (Ala) 77 Iowa Stacy v Stichton, 9 Iowa Kansa S Dickenson v Cowley, 15 Ka N 269 KentucKy Barnard v Sebre, 2 A K Marsh (Ky) 151; Shipp v Davis, Har d (Ky) 70; Davis v Edwards, Har d (Ky) 3 50 Michiga N Kegel v Schrenkheisen, 37 Mich 174 Minnesota Guile v McNanny, 14 Min N 520 Mississipp I Bishop v Fennerty, 46 Mis S 570 New York Dintruff v Tuthill, 62 Hun ( N Y) 591; Van Alstyne v Er- wine, ii N Y 331; People v Albany Recorder, 6 Hill ( N Y) 429 North Dakota Birchall v Griggs ( N Dak, 1894), 60 N W Rep 842 Ohio Rogers v Ellis, i Handy (Ohio) 48 i Disney (Ohio) I Pennsylvania Wray v Gilmore, I Miles (Pa) 75; Jewel v Howe, 3 Watts (Pa) 144- South Carolina Devall v Taylor, Cheves ( S Car) 5 Texa S Hopkins v Nichols, 22 Tex 206; Garner v Burleson, 26 Tex 348; Culbertson v Cabeen, 29 Tex 247; Carpenter v Pridgen, 40 Tex 32 Wisconsi N Morrison v Fake, i Pi N (Wi S) 133; Miller v Munson, 34 Wi S 579 United State S Salmon v Mills, 4 U S App loi, i C C A 278 2 Allen v Fleming, 14 Rich ( S Car) 196; Wilke v Cohn, 54Cal212; Morrison v Fake, i Pi N (Wi S) 133; Rogers v Ellis, i Disney (Ohio) i; Brownell v Colbath Steam Heating Co, 13 Month L Bul L (Ohio) 35; De- vall v Taylor, Cheves ( S Car) 5 Thus, an affidavit alleging that the defendant "was about to remove," etc, " or so absconds and conceals," etc, was held defective in Hagood v Hunter, i McCord ( S Car) 511 "Express or Implied Contra Ct" An affidavit is insufficient which avers that the defendant is indebted to the plaintiff upon an express or implied gontract, Hawley v Delmas, 4Cal195; but not if it aver that the debt is due by express and implied contra Ct Emerson v Detroit Steel, etc, Co (Mich, 1894), 58 N W Rep 659 In Tennessee, where the statute au- thorizes two or more grounds for the attachment to be stated in the alterna- tive in the affidavit, it was held that a valid ground could not be attached in that way with some other fact which was no groun d Haynes -v Powell, i Lea (Tenn) 347 KentucKy An affidavit stating two grounds of attachment in the alterna- tive has been held not vicious by the Court of Appeal S Wood v Wells, 2 Bush (Ky) 197; Hardy v Trabue, 4 Bush (Ky)644 In North Carolina an affidavit was held sufficient which stated that the defendant was a nonresident and had property in the state, " or has removed or is about to remove some of his prop- erty from the state," etc, on the ground that the statute put the words in the alternative, and the plaintiff two distinct facts of different natures, but to characterize and in- clude two or more phases of the same fact attended with the same result S 1 could succeed by establishing either of the M Penniman v Daniel, 90 N CaR154 California But in California under a statute authorizing an attachment in an action upon a contract, etc, " not secured by any mortgage or lien on real or personal property, or any pledge upon personal property; or, if originally so secured, that such se- curity has * * * become valueless," an affidavit was held defective which alleged " that the payment of the same has not been secured by any mortgage or lien on real or personal property, * or, if originally so secured," etc, in the words of the statute, and the attachment was dissolved; the court holding that "it would be proper to follow the language of the statute, in saying that payment had not been se- cured by any mortgage or lien upon real or personal property, or any pledge upon personal property, be- cause it includes two or more phases of the same fact, attended with the same results, namely * * * ; but to use the above language, and then say, 'or, if originally so secured,' * * * is not to state either with certaint Y It does not say that no security was ever given; neither does it say that security was given, but that the same has be- come valueles S" Wilke v Cohn, 54 Ca L 212; Winters v Pearson, 72Cal553; Mercer Bank v Morton, 58Cal360 1 Alabama Johnson v Hale, 3 Stew p (Ala) 331 Colorad O McCraw v Welch, 2 Colo284 Indiana Parsons v Stockbridge, 42 Ind 121 KentucKy Wood v Wells, 2 Bush (Ky) 197 Michiga N Jones v Peck (Mich, 1894), 59 N W Rep 659; Emerson v Detroit Steel, etc, Co (Mich, 1894), 58 N W Rep 659 Mississipp I Commercial Bank v Ullman, 10 Smed M (Mis S) 411 New York Arming v Monteverde (Supreme Ct), 8 N Y St Rep 812; Van Alstyne v Erwine, n N Y 331; Rothschild v Mooney (Supreme Ct), 36 N Y St Rep 565' North Carolina Penniman z\ Dan- iel, 90 N Car 154 South Carolina Goss v Gowing, 5 Rich ( S Car) 477 Tennessee Conrad v M'Gee, 9 Yerg (Tenn)428 Texa S Hopkins v Nichols, 22 Tex 206; Blum v Davis, 56 Tex 423 West VirginiaSandheger v Ho- sey, 26 W Va 221 Thus, in Societe Fonciere v Milli- ken, 135 U S 304, it was held that an affidavit preliminary to the issue of an attachment in T"exasupona foreign cor- poration, which recited that the de- fendant " is not a resident corporation or is a foreign corporation or is acting as such," was sufficient under Rev StatTex, art. 152, distinguishing Hopkins v Nichols, 22 Tex 206, on the ground that in the latter case there were two distinct causes for the at- tachment, whereas in the former case the single cause was the nonresidence of the corporatio N Thus, an affidavit that the defend- ant was about to assign or dispose of his property, with intent to delay or defraud his creditors, is not bad as being in the alternativ e Brown v Minneapolis Lumber Co, 25 Min N 461 But an affidavit in the alterna- tive that the defendant has assigned, secreted, or disposed of his property, or is about to assign, secrete, or dis- pose of the same, is ba d Guile v Mc- Nanny, 14 Min N 520 Contra, Dawley v Sherwin ( S Dak, 1894), 57 N W Rep 1027 See also Rothschild v Mooney (Supreme Ct), 36 N Y St Rep 565; Arming v Monteverde fSu- preme Ct), 8 N Y St Rep 812; Swe- zey v Bartlett, 3 Abb Pr, N S ( N Y Supreme Ct) 444 An affidavit averring that the de- fendant "absconds or secretes" is good, as forming but one distinct ground of Attachment Cannon v Logan, 5 Port (Ala) 77 An affidavit that the defendant " hath removed or is removing out of the state, or so absconds or privately conceals himself that the ordinary process of law cannot be served on him," these being the words of the statute, was held sufficient, Bosbyshell v Emanuel, 12 Smed M (Mis S) 63; as were an affidavit alleging that the defendant " has assigned, disposed of, or concealed, or is about to assign, (4) Statutory Phrases and Clause S The words of the statute giving the remedy should be followed very closely in alleging in the affidavit the grounds upon which the attachment is sought ; and especially is this so with respect to the status or intent of the defendant S 1 etc , his property with intent to defraud his creditors," Klenk v Schwalm, 19 Wi S in; and an affidavit that the de- fendant "is about to sell, convey, or otherwise dispose of his property, etc, with the intent to cheat, hinder, or de- lay his creditor S" Parsons v Stock- bridge, 42 Ind 121 The grounds or causes for the issu- ance of an order of attachment being divided and arranged into nine groups or subdivisions in the section of the statute providing therefor, each group or subdivision constitutes but one ground or cause, and the whole of any one of such groups or subdivi- sions may be stated in the language of the statute in an affidavit for an order of attachment, although it con- tains more than one distinct allega- tion, separated from each other by the disjunctive conjunction "o R" When more than one of such groups or sub- divisions are used in an affidavit, they should be united by the conjunction "an d" Tessier v Englehart, 18 Neb 170 1 "Absconding" or " Removing" Debt- or S An allegation in an affidavit that the debtor " has absconded," is insuffi- cient where the statute prescribes the use of the present tense, Levy v Mill- man, 7 Ga 167 {compare Selleck v Tuesdall, Dudley ( Ga) 196); and such a d*efect is not amendable, Brown v McCluskey, 26 Ga 577 But an alle- gation that the defendant " is abscond- ing " is sufficient in such a case, Ken- non v Evans, 36 Ga 89; or that he is "actually removing or about to re- move out of said county," Irwin v Howard, 37 Ga 18 Again, in Ken- nedy v Dillon, i A K Marsh (Ky) 354, it was held that an allegation that the defendant " hath absconded " was not sufficient where the statute pre- scribed the present tens e And see also Poage v, Poage, 3 Dana (Ky) 579 But compare Wallis v Wallace, 6 How (Mis S) 254, where, under a statute allowing an attachment where " the debtor so absconds," etc, an af- fidavit alleging that the debtor "hath absconded" was held sufficient. So an affidavit that the defendant "is about removing" was held suf- ficient where the statutory require- ment was that the debtor " is remov- in g" Lee v Peters, r Smed M (Mis S) 503 See also Runyan v Mor- gan, 7 Humph (Tenn)2io; Dandridge v Stevens, 12 Smed M (Mis S) 723- And an affidavit that "the defend- ant was about leaving the state per- manently " was held substantially equivalent to "the debtor is on the eve of leaving the state foreve R" Sawyer v Arnold, I La An N 315 See also Alabama Bank v Berry, 2 Humph (Tenn) 443; Boyd v Buckingham, 10 Humph (Tenn) 434; Frere v Perret, 25 La An N 500; Free v Hukill, 44 Ala 197; Hafley v Patterson, 47 Ala 271; Commerce Nat Bank v White- man Pulp Co, 67 Hun ( N Y) 648; Thames, etc, Marine In S Co v Dimick, 66 Hun ( N Y) 634; Swick v Griffis, 2 Pa DiSt Rep 550 A statement that defendant "ab- sents " himself does not fulfil the meaning of the word " abscond," as required by statut e Conard v Con- ard, 17 N J L 154 Allegation of Nonresidenc e Where the statute provided that an attach- ment might issue where the defendant " resides out of this state," an affidavit that the defendant " is a nonresident " was considered sufficient, Graham v Ruff, 8 Ala 171; and an allegation that the defendant is " not now an in- habitant of this state" has been held equivalent to saying that he is a " non- resident of the stat e" Wiltse v Steams, 13 Iowa 282 And see Mantz v Hendley, 2 He N M ( Va) 308; Wallis v Murphy, 2 Stew (Ala) 15; Croxall v Hutchings, 12 N J L 84; Millandon v Foucher, 8 La 582; New Orleans v Garland, n La An N 438; Reding v Ridge, 14 La An N 36; Love v Young, 69 N Car 65; Parks v Adams, 113 N Car 473; M'Culloch v Foster, 4 Yerg (Tenn) 162; Bennett v Avant, 2 Sneed (Tenn) 152; Hop- kins v Suttles, Har d (Ky) 101, note; Davis v Edwards, Har d (Ky) 350; To Vex, Harass, etc The averment that the attachment is not sued out " for the purpose of vexing or harassing the defendant " is generally held to be a matter of substanc e 1 8 Varianc e There should be no material variance between the affidavit and the other papers in the suit.

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New York v Genet, 4 Post Date: Sat, 2 Aug 2008 16:00:44 +0000
The debt sued upon should be the one sworn to, 2 and the cause of action set Drew v Dequindre, 2 Doug L (Mich) 93; Allen v Fleming, 14 Rich ( S Car) 196; Powers v Hurst, 3 Blackf (Ind) 229 Lane v Fellows, I Mo 251; Alexander v Haden, 2 Mo 187; Tufts v Volkening, 51 Mo App 7; Avery v, Good, 114 Mo 290; Clarke Banking Co v Wright, 37 Neb 382; Nagel v Loomis, 33 Neb 499; Adams v Mill- iard, 59 Hun ( N Y) 626; Steele v Raphael, 59 Hun ( N Y) 626; Owl Cigar Co v Lidgerwood (City Ct), 27 N Y Supp 932, 7 Mis C Rep ( N Y) 742; Baldwin v Ferguson, 35 111 App 393 An affidavit that both defendants resided in New York and have not resided in Michigan for three months, was considered as referring to the defendants and each of them, and was held sufficient. Dorr v, Clark, 7 Mich 310 Nonresidence, when necessary to be averred, need not be stated in express term S It is sufficient when that con- clusion is the only one which can be consistently drawn from the facts set forth in the affidavit. New York v Genet, 4 Hun ( N Y) 487 An affidavit that a defendant is not a resident of the state, so that proc- ess cannot be served upon him, was held insufficient on account of am- biguity when compared with the grounds for attachment prescribed in the statut e Lane v Fellows, i Mo Intent and Result.

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Reaugh v McConnell, 36 111 Post Date: Sat, 2 Aug 2008 15:45:07 +0000
Where the stat- ute requires an allegation in the af- fidavit of a certain intent on the part of the defendant, or a certain intent followed by a certain specified result, the affidavit must allege the intent, or the intent and result, Drake on At- tachment, 103 aa, 103 b; Crayne v, Wells, 2 111 App 574; and an omis- sion to aver the specified result, where required, has been held fatal, Napper v Noland, 9 Port (Ala) 218; Thomp- son v Chambers, 12 Smed M (Mis S) 488 But in Hinds v Page- bank, 9 Min N 68, an affidavit setting forth the intent, without the facts showing such intent, was held ba d And see Brown v Keogh (City Ct), 39 N Y St Rep 225, 14 N Y Supp 915 1 Hall v Brazleton, 40 Ala 406 Thus, under a statute requiring the affidavit to allege that "the attach- ment is not sued out for the purpose of injuring or harassing the defend- ant," an affidavit was held fatally de- fective which alleged that the "at- tachment is not sued out for the pur- pose of injuring and harassing the said Defendant" Moody v Levy, 58 Tex 532 But in Fridenberg v Pier- son, 18Cal152, the omission from the affidavit of the averment that the sum claimed was "an actual bona-fide ex- isting debt, due and owing from the defendant to the plaintiff," and that the attachment was not sought, and the action not prosecuted to hinder, delay, or defraud any creditor or creditors of the defendant, was held not to render the attachment a nullity as against subsequent attaching cred- itor S 2 Ballard v Great Western Mi N, etc, Co ( W Va, 1894), 19 S E Rep 510; Cross v Richardson, 2 Martin, N S ( La) 323 Thus, where the plaintiff stated different amounts in his petition and affidavit, the writ was quashed for varianc e Joiner v Per- kins, 59 Tex 300; Moore v Kaufman First Nat Bank, 82 Tex 537; Moore v Corley (Tex App, 1890), 16 S W Rep 787; Browning v Pasquay, 35 Md 294 But the dissolution of an attachment was refused where the affidavit and petition claimed a larger amount than the bill of items annexed to the petitio N Donnelly v Elser, 69 Tex 262 Two Affidavit S Where two affidavits of the same import appear in the record, the second will be disregarde d Wharton v Conger, 9 Smed M (Mis S) 510; but where the two com- bined make out a clear case for the writ, they will be consolidated and treated as one affidavit, even where made by different person S Lewis v Stewart, 62 Tex 352 forth in the affidavit should appear to be the same as that set forth in the declaration or petitio N 1 But an objection for a variance curable by amendment cannot be made for the first time in the appellate court. 2 II I THE BOND OB UNDERTAKING 1 In Genera L In the great majority of the states it is necessary for the plaintiff or some one in his behalf to execute a bond with security for the indemni- fication of the defendant against any damage by reason of the attachment before the writ can issu e 3 Clerical Error S Mere clerical errors such as the use of the plural for the singular do not render the affidavit objectionabl e Weis v Chipman, 3 Tex Civ App 106 And see De Bebian v Gola, 64 Md 262 1 For if the affidavit and attach- ment disclose one cause of action and the plaintiff declare on substantially a different cause, the variance may be pleaded in abatement, Wright v Snedecor, 46 Ala 92; but cannot, how- ever, be taken advantage of by de- murreROdom v Shackleford,44 Ala 331 And see Deering v Collins, 38 Mo App 80; Evans v Tucker, 59 Tex 249; Horton v Miller, 84 Ala 537; Summerlin v Dowdle, 24 Ala 428 Variance in Favor of Defendant If the discrepancy between the affidavit and the other papers in the suit is in favor of the defendant, it cannot be assigned for error by hi M Tessier W Crowley, 16 Neb 369 Thus, an affidavit is not defective for stating a sum less than that stated in the peti- tion, not sworn to, if the sum stated is certai N Evans v Lawson, 64 Tex 199; Stewart v Heidenheimer, 55 Tex 648 ; Henrte v Sweasey, 5 Blackf (Ind) 335; Lathrop v Snyder, 16 Wi S Immaterial Varianc e An immaterial variance between the affidavit and the other papers in the suit will not vitiate the Attachment Thus, where the statute required the amount stated in the writ to conform to the amount stated in the affidavit, it was held, in a suit for an injury for which treble damages were allowed by statute, that the attachment should not be quashed for variance because the affidavit stated the amount of actual damage claimed, and the writ was issued for treble the Amount De Stafford v Gartley, 15 Colo32 And see Ault- man v Daggs, 50 Mo App 280 ; Brasher v Cuchia, 4 Tex Civ App 690; Perkerson v Snodgrass, 85 Ala Misnomer in Notice by Publicatio N The question as to the insufficiency of a notice by publication in attach- ment on account of an alleged variance between the name of the defendant in the affidavit and declaration and the notice by publication cannot be raised by motion to quash the notice, but should be raised by plea in abate- ment. Reaugh v McConnell, 36 111 2 Failure to give the Bond Require d Where a bond is re- quired by the statute as a prerequisite to the issuing of the writ of attachment, a failure to give it will be fatal, in the absence of a saving clause in the statute to the contrar Y 1 3 Time for Giving Bon d The bond or undertaking should precede the writ and accompany the affidavit ; a but whether the New York Throop's Annot Code Civ Pro, 1892, 640 North Carolina Code 1883, 356 Ohio Rev Stat 1892, 5523 Orego N Hill's Annot Laws 1887, 146 Pennsylvania Brightly Purdon's Digest 1894, p 71, 72 South Carolina Ge N Stat1871, Tennessee Code 1884, 4212 Texa S Rev Stat1879, art S 156- Utah Comp Laws 1888, 3310 Ver Mont Rev Laws 1880, 847 VirginiaCode 1887, 2968 Washingto N Hill's Annot Stat, etc, 1891, 293 West VirginiaCode 1891, 194, P 479 Wisconsi N Sanbord Berryman's Annot Stat, 1889, 2732 Wyoming Rev Stat1887, 2871 Federal Court S In attachment suits in federal courts the same security is required as in state court S Singer Mfg Co v Mason, 5 Dil L (U S) 488 Nonresident S In Kansas : Simon v Stetter, 25 Ka N 155; Head v Daniels, 38 Ka N i; Payne v First Nat Bank, 16 Ka N 147 ; Nebraska: Grebe v Jones, 15 Neb 312; Marsh v Steele, 9 Neb 96; Olmstead v Rivers, 9 Neb 234; Compiled Statutes of Nebraska 1889, 200; Mississippi: Baird v Georgia Pac RCo (Mis S, 1893), 12 So Rep 547; and Ohio: Rev Stat1892, 5523 No bond or undertaking is necessary for an attachment against nonresident defendant S In Virginia no bond is necessary unless the sheriff is directed to take the property into his possessio N Kenefick v Caulfield, 88 Va 122 1 Baldwin v Ferguson, 35 111 App 393; Cosner z/ Smith, 36 W Va 788; Wagener v Booker, 31 S Car 375; Louisville, etc, RCo v Lake, 5 Ind App 450; Barkeloo v Randall, 4 Blackf (Ind) 476; Brace v Grady, 36 Iowa 352; Gable v Brooks, 48 Md 115; Wanamaker v Bowes, 36 Md 42; Alabama Bank v Fitzpat- rick, 4 Humph (Tenn) 311; Didier v Galloway, 3 Ark 501; Kellogg v Miller, 6 Ark 472; McMechan v Hoyt, 16 Ark 303 Without the bond the party is not rightfully in court, and its absence is to be regarded as in the nature of a personal disability to su e Delano v Kennedy, 5 Ark 458; Steamboat Na- poleon v Etter, 6 Ark 108 See also Ford v Hurd, 4 Smed M (Mis S) 683; Houston v Belcher, 12 Smed M (Mis S) 514; Tyson v Hamer, 2 Ho W (Mis S) 669 And it has been held that a judg- ment against a garnishee, who has answered underan attachment without a bond, is voi d Ford v Woodward, 2 Smed M (Mis S) 260 See also Davis v Marshall, 14 Barb ( N Y) 96; Kelly v Archer, 48 Barb ( N Y) 68; Van Loon v Lyons, 61 N Y 22; Tiffany v Lord, 65 N Y 310; Bene- dict v Bray, 2Cal251; Lewis v Butler, Sneed (Ky) 246; Stevenson v Robbins, 5 Mo 18; Bradley v Kroft, 19 Fed Rep 295 It has also been held that the want of a sufficient bond could not be cured by filing a proper one after the suit was brought.

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4 v Smith, 36 Post Date: Sat, 2 Aug 2008 15:29:04 +0000
Houston v Belcher, 12 Smed M (Mis S) 514 But in Banta -v Reynold S 3B Mo N (Ky) So, where no bon dat all was filed, the court held that the attachment was voidable, not void, though void was the word used in the statut e See also Camberford v Hall, 3 McCord ( S Car) 345; O'Farrell v Stockman, 19 Ohio St 296; Bryant v Hendee, 40 Mich 543; Blake v Sherman, 12 Min N 420; Cheever v Lane, 9 Iowa 193; Van Winkle v Stevens, 9 Iowa 264 Judgment against Nonindemnified Defendant Voi d A judgment rendered in an attachment suit is void as to a defendant for whose indemnity no bond has been given, though such de- fendant was made a party to the suit by amendment. Baldwin v Ferguson, 35 111 App 393 2 Benedict v Bray, 2Cal251; Levy v Mielman, 7 Ga 167; Cosner bond was given before the issuance of the writ may be shown, even though the writ is dated before the bon d 1 4 Form of Bond A IN GENERA L It has been generally ob- served that all the formalities that usually attend the giving of bonds are absolutely essential to the jurisdiction of the court or officer to issue the writ of Attachment 8 statutory For M The statutory form, where one is prescribed, should be followed, because it is always sufficient, and is some- times regarded as exclusive of every other form of bon d 3 In gen- eral, though, a bond in substantial compliance with the statute is sufficient. 4 v Smith, 36 W Va 788; Hucheson v Ross, 2 A K Marsh (Ky) 349; Hous- ton v Belcher, 12 Smed M (Mis S) 514;.

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In Gale v Seifert, 39 Post Date: Sat, 2 Aug 2008 15:13:50 +0000
Tyson v Hamer, 2 How (Mis S) 669; Root v Monroe, 5 Blackf (Ind) 594; Osborn v Schiffer, 37 Tex 434; McClanahan v Brack, 46 Mis S 246; Millbank v Broadway Bank, 3 Abb Pr N S ( N Y Supreme Ct) 223; Reed v Kentucky Bank, 5 Blackf (Ind) 227; Summers v Glancey, 3 Blackf (Ind) 361 In Georgia an attachment against a fraudulent debtor cannot issue under section 3297 of the code until after a bond has been taken in pursuance of section 3298 of the cod e Nor will a memorandum of the judge who issued the attachment, written on the margin of the same, declaring that attachment is not to be levied until a bond ap- proved by the clerk has been given, render the writ valid, there being no provision of the law for qualifying the attachment in that wa Y Clay v Tapp, 79 Ga 596; Euneking v Clay, 79 Ga 598; Bailey v Clay, 79 Ga 600 1 Snelling v Bryce, 41 Ga 513 Bond and Writ of Equal Dat e Where the bond bears equal date with the attachment, it will be presumed to have been taken before the granting of the Attachment M'Kenzie v Buchan, i Nott M ( S Car) 205 See also Wright v Ragland, 18 Tex 289, distinguished from Hucheson v Ross, 2 A K Marsh (Ky) 349 2 Wade on Attachment, 104 See also Hills v Moore, 40 Mich 210 3 Simon v Stetter, 25 Ka N 155; Amos v Allnutt, 2 Smed M (Mis S) 215; Wade on Attachment, 103 For if there be a bond, but not such as the law requires, it will, unless amendable, be the same as if no bond at all had been file d Alabama Bank v Fitzpatrick, 4 Humph (Tenn) 311; Houston -v Belcher, 12 Smed M (Mis S) 514; Hisler v Carr, 34 Ca L 641; Kelly v Archer, 48 Barb ( N Y) 68; Elliott v Plukart, 6 Pa Co Ct Rep 151; Wanamaker v Bowes, 36 Md 42 Thus a covenant to pay the defend- ant the amount of the penalty stated in the statute, or all damages and costs he might sustain by reason of the issue of the attachment, was held insufficient. Homan v Brinckerhoff, 1 De N ( N Y) 184; Rockefeller v Hoysradt, 2 Hill ( N Y) 616 Should Follow Form Regardless of Language of Statut e Where a statute provides in one clause what shall be the condition of the bond, and in an- other sets forth the form of the condi- tion, the proper course is to follow the form, without regard to the lan- guage of the statute elsewher e Drake on Attachment, 126 Thus it has been held that a bond following the language of the statute rather than the form was voi d Mclntyre v White, 5 How (Mis S) 298; Amos v Allnutt, 2 Smed M (Mis S) 215; Proskey v West, 8 Smed M (Mis S) 711 And see Love v Fairfield, 10111303; Lucky v Miller, 8 Yerg (Tenn) 90 And a bond literally in the form pre- scribed by statute has been held valid even though it failed to state in what court the proceedings were ha d Singleton v Wofford, 4 111 576 4 Ihrig v Scott, 5 Wash 584; Munzenheimer v Manhattan Cloak, etc, Co, 79 Tex 318; Van Deusen v Hayward, 17 Wen d ( N Y)67; O'Neal v Owens, I Hay W (N Car) 365; Leach v Thomas, 2 Nott M ( S Car) no; Mandel v Peet, 18 Ark 236; Kahn v, Herman, 3 Ga 266; Banta v Reynolds, 3B Mo N (Ky) 81; Adams v Kellogj, 63 Mich 165 b SEA L A statute requiring a bond as a prerequisite to the issuance of a writ of attachment is not complied with by the exe- cution of an unsealed stipulatio N Where the paper signed is with- Howard v Manderfield, 31 Min N And a bond has been held sufficient with the condition written under the signatures and seals of the obligor S Melvin v Steamboat General Shields, 15 Ark 207 Must be a Valid Bon d A paper filed as a bond in a case, which was not taken by the clerk, nor in the manner prescribed by the statute, was held not a valid bon d Home v Mitchell, 7 Bush (Ky) 132 Dispensing with Rule of Court. In Gale v Seifert, 39 Min N 171, it was held that a judge of the District Court may in his discretion excuse compli- ance with a rule of court requiring a bond for attachment to be acknowl- edged by the suretie S Undertaking Sufficient.

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Again, a bond signed Post Date: Sat, 2 Aug 2008 14:55:16 +0000
An order requiring a bond is satisfied by an undertaking, provided such under- taking furnishes the security contem- plated by the ordeRPeople v Lowber, 7 Abb Pr ( N Y Supreme Ct) 158 But contra when it fails to furnish sufficient security against the mischief contemplated by the statut e Ex p Damon (Ala, 1894), 15 So Rep 862 Must not be Wanting in Substantial Conformit Y Where the bond for an attachment is wanting in substantial .conformity to the statute as to its obli- gations and conditions, it is no bond at al L Louisville, etc, RCo v Lake, 5 Ind App 450; Edwards v Cooper, 28 Ark 466; Guckenheimer v Dry- fus ( S Car, 1895), 21 S E Rep 331 Thus in Starbird z/Koonse,io Pa Co Ct Rep 449, it was held that where the plaintiff sues out an attachment and gives bond to prosecute the "action" with effect, instead of the " attach- ment," as required by the Act of May 24, 1878, the bond is fatally defective, and the attachment must be quashe d And in Delano v Kennedy, 5 Ark 458, an attachment bond conditioned that the "plaintiff will prove his de- mand on a trial at law " was held in- sufficient. Again, a bond signed by two plaintiffs with the condition ex- pressed in the singular number was held defective in Solinsky v Young (Tex App, 1891), 17 S W Rep 1083 Money Deposit Insufficient.

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Simmons Hardware Co v Alturas Post Date: Sat, 2 Aug 2008 14:37:24 +0000
Where the statute calls for an undertaking or bond, a deposit of money in lieu of the undertaking is not sufficient. Bate v McDowell, 48 N Y SupeRCt 219, 97 N Y 646 Common-law Bon d A common-law bond has been held sufficient in Barnes v Webster, 16 Mo 258 And see Cook v Boyd, 16B Mo N (Ky) Clerical Error S Mere clerical errors in the bond or undertaking will not vitiate it. Simmons Hardware Co v Alturas Commercial Co (Idaho, 1895), 39 Pac Rep 550 Omission S A bond "conditioned that A B, plaintiff in attachment against , defendant," is fatally defectiv e Schrimpf v McArdle, 13 Tex 368 And a bond without a penalty, or not expressing a sum which is payable, is void, and parol evidence is not admissible to show the sum which ought to have been ex- presse d Copeland v Cunningham, 63 Ala 394 But an omission of the name of the surety in the body of the instru- ment does not affect the validity of the bond or the obligation of the suret Y McLain v Simington, 37 Ohio St 484 See also Affeld v People, 12 111 App 502, and Hann v Ruse, 35 La An N 725 And, in general, where a word which is omitted by mistake can be readily supplied from the context, such omission will not affect the va- lidity of the instrument.

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