Laws

Sheffield v Key, 14 Post Date: Sat, 2 Aug 2008 19:35:19 +0000
1 Thus an omission to mark the paper " filed ; " 2 or a misnomer of the parties in entitling the affidavit ; 3 etc Gunby v Porter (Md, 1895) 31 Al L Rep 324 Jones v Leak en Smed M (Mis S) 591, was a similar case; and it was there said that the addi- tion of the statement that affiant was informed and believed, etc, after a positive affidavit that certain facts existed, was mere surplusag e An affidavit which states that the defendant, " as this deponent has good reason to believe, has disposed of his property," etc, is sufficiently positive in its allegations "that he has good reason to believe " the facts stated as the statute require S Nicolls v Lawrence, 30 Mich 395 It seems also that a statement that deponent " has good reason to be- lieve that defendant has absconded," etc, is equivalent to an averment that "he does believe," etc Massey v Scott, 49 Mo 278 A positive statement of the amount " due," instead of showing, as the statute requires, the amount that affi- ant " believes he ought to recover," is sufficient. Sleet v Williams, 21 Ohio St 82; a case substantially iden- tical with Buell v Van Camp, 119 N Y 160 1 In Pach v Orr, 15 Civ Pro Rep (Buffalo SupeRCt) 176, it was held that the rule of court requiring an affi- davit to state whether any prior appli- cation has been made for an order does not apply to applications for attachment, but is confined to appli- cations made in a pending actio N See also Ross v Wigg, 6 Civ Pro Rep ( N Y Supreme Ct) 268, note; Bean v Tonnelle, i Civ Pro Rep ( N Y Supreme Ct) 33 2 Simpson v Minor, i Blackf (Ind) 229; Pinson v Kirsh, 46 Tex 26; Brash v Wielansky, 36 How Pr ( N Y Supreme Ct) 253; Catabury v Douglass, Daily Reg, 5 Nov 1883 Thus where an affidavit was deliv- ered to the officer before the issuing of the writ, and he failed to file it at that time, it was held that it might be proved by him, so as to permit it to be filed nunf pro tun e Simpson v Minor, i Blackf (Ind) 229 Again, where the plaintiff made the affidavit re- quired by statute previous to issuing the writ, and the clerk, instead of fil- ing the affidavit, wrote out the writ on the reverse side of the half-sheet on which the affidavit was written and handed it to the sheriff, who kept it until he had executed the writ and made his return, it was held that the validity of the affidavit was in no wise impaired, and that the failure of the clerk to retain it in the office and mark it "filed" furnished no ground for dissolving the Attachment Hughes v Stinnett, 9 Ark 211 Failure to Fil e But in Ketchin v Landecker, 32 S Car 155, the failure to file the affidavits upon which the warrant was based within the time re- quired by law was held good cause for vacating the Attachment 3 Ruthe v Green Bay, etc, RCo, 37 Wi S 344 So where an affidavit alleged that A B owed, and the declaration was to the effect that A B's surviving partner owed, it was held sufficient. Sheffield v Key, 14 Ga 537 But in Jacobs v Tichenor, 27 W N C (Pa) 35, an affidavit which failed to mention the name of the de- fendant and had a material interlinea- tion was held fatally defectiv e See also Jansen v Mundt, 20 Neb 320 And it has been held that a statement of the name by initials is insufficient.

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Steinam v Gahwiler (Tex Civ Post Date: Sat, 2 Aug 2008 19:17:41 +0000
State v Leon, 42 N J L 540 Affidavit in Firm Na Me An attach- ment sued out by a partnership in the firm name, not disclosing the individ- ual names of the partners, is irregular and subject to abatement on plea, un- less permitted by statute, Sims v Jacobson, 51 Ala 186; Norman v Horn, 36 Mo App 419 And in Nor- man v Horn, 36 Mo App 419, it was held that a writ of attachment issued upon an affidavit professing to have been made by a copartnership firm, and signed by the firm, was with- out warrant of law, and the seizure of property thereunder was a trespas S But in Stewart v Katz, 30 Md 334, an affidavit that A Co have good reason to believe, etc, was held good without the allegation that the in- dividuals composing the firm believ e See also Mandel v Peet, 18 Ark 236; or the omission of the statement of a venue ; l or an omission of the signature of the plaintiff; 2 or an omission from the jurat of the affidavit; 3 or an error in the date of the instrument (as Gazan v Royce, 78 Ga 512; De Leon v Heller, 77 Ga 740 It has been held, too, that an attachment by a nonresident partnership in the firm name was not voi d Cady v Smith, 12 Neb 628 1 Venu e In Livingston v, Coe, 4 Neb 379, a petition filed in a district court of Nebraska, headed, " Supreme Court of the State of New York," was not held a sufficient ground for dis- solving the attachment; and in Struth- ers v McDowell, 5 Neb 491, it was held that the court might permit the officer before whom the affidavit had been made to attach a venue, even after a motion had been filed to dis- miss the attachment on the ground of its omissio N And the objection that the affidavit upon which the attach- ment issued has no venue will not be entertained at all in a collateral actio N Crowell v Johnson, 2 Neb 146; Avery v Good, 114 Mo 290 2 Signature of Plaintiff While the plaintiff or affiant should sign the affi- davit, Cohen v Manco, 28 Ga 27; Sedalia Third Nat Bank v Garton, 40 Mo App 113; a failure to do so has been held not fatal to the attach- ment, Kinney v Heald, 17 Ark 397; Redus v Wofford, 4 Smed M (Mis S) 579; Bates v Robinson, 8 Iowa 318; Simmons Hardware Co v Altu- ras Commercial Co (Idaho, 1895), 39 Pa C Rep 550 ; West Tennessee Agri- cultural, etc, Asso C v Madison, 9 Lea (Tenn) 407 See also Cheadle v Riddle, 6 Ark 480; West v Woolfolk, 21 Fla 189; Harris v Lester, 80 111 307; Beebe v Morrell, 76 Mich 114; Gray v Steedman, 63 Tex 95; Lowenheim v Lockhard, 2 Baxt (Tenn) 214 And in Arkansas, Iowa, and Mary- land an attachment has been sus- tained where the affidavit was nei- ther signed by the affiant nor cer- tified by the clerk of the court, the judge being satisfied from the evidence that the affidavit was, in fact, sworn to before the writ issued, and that the omission of the plaintiff to sign and the clerk to certify the affida- vit was an oversight. Fortenheim v Claflin, 47 Ark 49; Stout v Folger, 34 Iowa 71; Farrow v Hayes, 51 Md 3 Boisseau v Kahn, 62 Mis S 757; Cook v Jenkins, 30 Iowa 452; Forten- heim -v Claflin, 47 Ark 49; McCartney v Branch Bank, 3 Ala 709; Kruse v Wilson, 79 111 233; White v Casey, 25 Tex 552; Farmers' Bank v Gettin- ger, 4 W Va 305 Signatur e Where an affidavit ap- peared among the papers in an attach- ment suit, wanting only the signature of the judge to the jurat to make it complete, and there was an entry upon it in the handwriting of the judge: "Sworn and subscribed before me," with no signature, and immediately below was written the fiat ordering the attachment to issue, which was signed by him, and both the unsigned jurat and the signed order for the attachment bore the same date, and the order recited that the judge had read the petition, affidavit, and doc- uments annexed, it was held that the want of the judicial signature to the jurat was no sufficient ground for dis- solving the Attachment English v Wall, 12 Ro b ( La) 132 And see Lowry v Stowe, 7 Port (Ala) 483 And in Kruse v Wilson, 79 111 233, the affidavit was regarded as sub- stantially sufficient, although the jurat was not signed, where the writ, issued on the day the affidavit was filed, re- cited that the affiant had complained on oath to the clerk who issued the writ, and the affiant testified that in fact he swore to the affidavit on the day it was file d And where the clerk signed his name to the jurat, " W W Church, clerk, " without writing out or giving the title to his office in full and with- out putting the seal of the court to the paper, the attachment was not rendered void thereb Y Simon v Stetter, 25 Ka N 155 The omission of a notary public to append to his sig- nature to a jurat the name of the county for which he was appointed, where the name appears in the cap- tion, is not a material defe Ct Smith v Runnels, 94 Mich 617 See also Cartwright v Chabert, 3 Tex 261; May v Ferrill, 22 Tex 340; Whitten- berg v Lloyd, 49 Tex 633; Hart v Jones, 6 Kulp (Pa) 326 But an affi- davit which is not signed by the al- where it was made on the same day that the writ issued and re- cited that it was annexed thereto, but implied from its context that it had been made subsequent to the issue of the writ); 1 or verbal inaccuracies which make a reference to the context neces- sary, are seldom fatal to the attachment, and may be corrected, when necessary, by amendment without injury to either part Y 2 leged affiant, and the jurat to which is neither signed by the clerk nor at- tested by the seal of the court, is fatally defectiv e Sedalia Third Nat Bank v Garton, 40 Mo App 113 Recital S Where the clerk was au- thorized by statute to take affidavits and the jurat stated that the affidavit was sworn to before A B, and the writ was tested and signed by A B, clerk of the Circuit Court, it was held that it would be presumed that the affidavit was sworn to before the cler K Singleton v Wofford, 4 111 576 A jurat reciting that " on this day personally appeared g/and having been duly sworn by me, subscribed to the foregoing affidavit," etc, suffi- ciently shows that it was sworn and subscribed to by g before the officer who took the affidavit. Steinam v Gahwiler (Tex Civ App, 1895), 30 S W Rep 472 The name of the plaintiff has been held necessary in the body of the affi- davit, as the fact that it is signed to the affidavit does not necessarily connect it with the cas e Wiley v Aultman, 53 Wi S 560 And where the name appeared in the body of the instru- ment it was held sufficient, even where it did not appear as entitled in the case at all and was attached to none of the original papers in the suit.

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2 Accuracy of statement Post Date: Sat, 2 Aug 2008 19:04:30 +0000
Kinney v Heald, 17 Ark; 397 See also Gilkeson v Knight, 71 Mo 403; Simmons Hardware Co v Altu- ras Commercial Co (Idaho, 1895), 39 Pa C Rep 550 But in Rudolph v McDonald, 6 Neb 163, it was hold that an objection that the name of the affiant had been omitted from the body of the affidavit, which had been duly signed by the affiant at the end, was technical merely, and no ground for dissolutio N Defect not Supplied by Context. Where the omission from the jurat cannot be supplied by implication from the context, it has been held fata L Birdsong v McLaren, 8 Ga 521; Tacoma Grocery Co v Draham, 8 Wash 263 ; Watt v Carnes, 4 Heis K (Tenn) 532; Cooper v Smith, 25 Iowa 269 Curing Defe Ct It has been held that the clerk might certify the affidavit where he had omitted to do so, and the defendant had pleaded the fact in abatement, even after the plea in abatement had been file d Hyde v Adams, 80 Ala i N As to defective jurats, see also article AFFIDAVITS, Vo L I, p 316 1 Hubbardston Lumber Co v Co- vert, 35 Mich 254 In McClanahan v Brack, 46 Mis S 246, it was held that the mere fact that the affidavit and bond for attachment were dated Nov 24, 1866, and the writ was dated De C 12, 1866, did not ipso facto constitute a ground for quashing the Attachment 2 Fitzpatrick v Flannagan, 106 U S 648; McCartney v Branch Bank, 3 Ala 709; State v Moran, 43 N J L 49; Cooper v Reeves, 13 Ind 53; Sims v Jacobson, 51 Ala 186; Hall v Brazelton, 46 Ala 359; Watts v Womack, 44 Ala 605 Amendment S And, in general, an affidavit is amendable and not void where with the names of the parties and the amount of the indebtedness it states, however defectively, some statutory ground for the issue of the writ Booth v Rees, 26 111 45; Camp- bell v Whetstone, 4 111 361; Kruse v Wilson, 79 111 233; Roberts v Dunn, 71 111 46; Clarke v Seaton, 18B Mo N (Ky) 230 See article AMEND- MENTS, Vo L I, p 680 et se Q But the right or power of amend- ment cannot be invoked where there is nothing conferring jurisdictio N Norton v Flak e 36 Mo App 698 Here Clerical Errors are not sufficient to dissolve an Attachment Thus where a nonresident attachment was issued upon a petition and affidavit representing the defendant as resident in the same state in which the suit was brought, but the petition referred to another petition in which the de- fendant was represented as resident in the same county in another state, 7 Substantial Averments A Two CLASSE S In every affidavit for an attachment there are two parts, the one relating to the amount due from the defendant to the plaintiff, the other to the facts relied upon as grounds for the Attachment b STATEMENT OF PLAINTIFF'S CLAIM Must state Amount It is absolutely necessary that the affidavit should state the amount sued for by the plaintiff, 1 unless such amount is set forth in the petition accompanying the affidavit. 2 Accuracy of statement.

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Sherrill v Fay, 14 Iowa Post Date: Sat, 2 Aug 2008 18:51:26 +0000
The amount claimed need not be stated with absolute accuracy ; 3 but the sum stated must not be merely such error was held insufficient to dis- solve the Attachment Citizens' Bank v, Hancock, 35 La An N 41; Corrigan v, Nichols, 6 Tex Civ App 26; Spitz v Mohr, 86 Wi S 387 Omitted Word S The omission of a word which is plainly a clerical mis- take is not fatal to the affidavit if the word can be readily supplied from the context. Buchanan v Sterling, 63 Ga 227; Barton v Saalfeld, r How Pr N S (Co Ct N Y) 276 But an attach- ment has been dissolved for the omis- sion of the word "is" before "justly indebted," Dallas City Nat Bank v Flippen, 66 Tex 610; and for the use of the singular "the defendant," where the writ was issued against more than one, Perrill v Kaufman, 72 Tex 214 And in general, if the omission is such as to substantially affect the state- ment of the ground of attachment it will be fata L Block v Scanlon, 48 Ga 12 And see Espey v Heiden- heimer, 58 Tex 662; Evans v Tucker, 59 Tex 249; Gunst v Pelham, 74 Tex 586; Foran v Johnson, 58 Md 144; Lyon v Blakesly, 19 Hun ( N Y) 299; Donnell v Williams, 21 Hun ( N Y) 216; Trow's Printing, etc, Co v Hart, 9 Daly ( N Y) 413; Ruppert v Haug, 87 N Y 141; Lampkin v Douglass, 63 How Pr ( N Y) 47, 27 Hun( N Y)si7 Reasonable Certaint Y Where an affi- davit appended to a petition for an attachment averred " that the facts set forth therein asking a writ of attach- ment are true," it was held equivalent to an averment that the allegations of the petition were true, and that the affidavit was sufficient. Sherrill v Fay, 14 Iowa 292 An allegation in an affidavit that two defendants, naming them, "are just- ly indebted " to the plaintiff imports a joint indebtedness, and a subsequent averment that such debt is due from one of said defendants necessarily im- plies that it is due from bot H Sword v Circuit Judge, 71 Mich 284 1 Tootle v Smith, 34 Ka N 27; Blakley v Bird, 12 Iowa 601; Kelley v Donnelly, 29 Iowa 70; Worthington v Gary, i Mete (Ky) 470; Anderson v Sutton, 2 Duv (Ky) 488; Price v Merritt, 13 La An N 526; Cross v McMaken, 17 Mich 511; Wells ' v Hogan, 2 Pa DiSt Rep 98; Foster v Hall, 4 Humph (Tenn) 346; Marshall v Alley, 25 Tex 342; Espey v Heidenheimer, 58 Tex 662; Bowen v Slocum, 17 Wi S 181; Baumgardner v Dowagine Mfg Co, 50 Min N 381 2 If the amount claimed by the plaintiff is required to be set forth in terms in the petition, and it be there stated, it is only necessary to refer to it in the affidavit as the sum for which the attachment is obtaine d Boone v Savage, 14 La 169; Souberain v Re- naux, 6 La An N 201; Watts v Hard- ing, 5 Tex 386; Morgan v Johnson, 15 Tex 568 See also Kennedy? / Mor- rison, 31 Tex 207; La Force v Wear- Boogher Dry Goods Co (Tex Civ App, 1894), 29 S W Rep 75; Van Alstyne v Erwine, n N Y 331; Crandall v McKaye, 6 Hun ( N Y) 483; Wirt v Dinan, 44 Mo App 583 Compare Blakley v Bird, 12 Iowa 601; Kelley v Donnelly, 29 Iowa 70; Price v Merritt, 13 La An N 526 3 Rainwater-Boogher Hat Co v O'Neal, 82 Tex 337 An affidavit has been held sufficient which averred the amount of the indebtedness to be three thousand dollars, "as near as can be specified by this deponent.

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A general averment of damages Post Date: Sat, 2 Aug 2008 18:34:31 +0000
" Barker v Thorn, 20 Mich 264 See also Mairet v Marriner, 34 Wi S 582; Oliver v, Town, 28 Wi S 328 In Flower v Griffith, 12 Louisiana, 345, it was held that an affidavit stating that conjectural, for in the latter case no attachment will li e 1 The objection that the amount of indebtedness is not stated cannot be taken advantage of in collateral proceedings by one not a party to the original actio N 2 Nature of Debt While the affidavit need not state how the debt accrued unless required to do so by statute, 3 generally the foun- the defendants were indebted to the plaintiff "in a sum exceeding two thousand dollars," was a sufficient statement of the amount du e But in the same state it was held that an affidavit alleging a debt by one part- ner to another resulting from the partnership transactions was not suffi- ciently certain when there had been no settlement of the partnership ac- count S Levy v Levy, n La 581, which is not in conflict with Belden v Read, 27 La An N 103 See also Lathrop v Snyder, 16 Wi S 293 Id Certtun Est, etc An affidavit stating the principal sum due "exclu- sive of interest," where the amount of interest was capable of being made certain by computation, was held sufficient. Wright v Ragland, 18 Tex 289 1 Levy v Levy, n La 581; La- throp -v Snyder, 16 Wi S 293; Hawes v Clement, 64 Wi S 152; Joiner v Perkins, 59 Tex 300; Espey v Heiden- heimer, 58 Tex 662 In Morrison v Ream, I Pi N (Wi S) 244, an affidavit that the defend- ant was indebted to the plaintiff "in the sum of $28266 not deduct- ing certain counter demands and set- off claims against the above claim in favor of said defendant, the exact amount of which counter demands this affiant is not knowing," was held too vague and uncertai N See also Friedlander v Myers, 2 La An N 920; Muroe v Cocke, 2 Cranch ( C C) 465; Brown v Hoy, 16 N J L 157; Simon v Johnson, 7 Kulp (Pa) 166; Gans v Beasley ( N Dak, 1894), 59 N W Rep 714; Ackroyd v Ackroyd, 20 Ho W Pr ( N Y Supreme Ct) 93 But an affidavit that the defendant "was indebted to the plaintiff on account in the sum of 1000, which may be subject to a set-off for an un ascertained sum which on settlement will be due defendant," was held sufficiently certai N Holston Mfg Co v Lea, 1 8 Ga 647 General Averment Insufficient. A general averment of damages is not sufficient.

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Westervelt v Agrumaria, etc, 58 Post Date: Sat, 2 Aug 2008 18:21:40 +0000
Accordingly, in an action for a breach of contract to obtain an attachment the plaintiff must show that he is entitled to recover a specific su M Golden Gate Concentrator Co v Jackson, 13 Abb N Ca S ( N Y Supreme Ct) 476 And an affidavit which set forth that the amount of the plaintiff's claim was ten thousand dol- lars, or other larger sum, with inter- est from the ist day of January, 1883, was held insufficient, as not stating a specific su M Thorington v Merrick, 101 N Y 5 And see Boulter v Beh- rend, 20 d C 567 And in Jones v Walter, I Pi N (Wi S) 345, a statement that the plain- tiff's demand was ' ' over and above the sum of fifty dollars," was held an in- sufficient compliance with the statute requiring the amount to be state d Unliquidated Damage S In an action for unliquidated damages the facts which the plaintiff claims to prove his damages must be set forth in the affi- davit. An allegation of damages to a certain amount is not sufficient. Westervelt v Agrumaria, etc, 58 Hun ( N Y) 147, 33 N Y St Rep 833, n N Y Supp 340; Blum v Jung (Su- preme Ct), 30 N Y Supp 1020 2 Harvey v Foster, 64Cal296, where it was admitted that the defect would have been good ground for quashing the attachment on motion of the defendant, the court holding, how- ever, that the lien of the attachment was valid against third person S 8 Starke v Marshall, 3 Ala 44; O'Brien v Daniel, 2 Blackf (Ind) 200; Irvin v Howard, 37 Ga 18; Barbee v Holder, 24 Tex 225 Thus where the affidavit was against joint debtors, both of whom resided outside the state, it was held unneces- sary for the attaching creditor to allege that the indebtedness arose upon a joint contra Ct Dobbs v Murray County Justices, 17 Ga 624 In New Jersey the plaintiff in attach- ment need not specify the nature of the cause of action in his affidavit except so far as to state the amount due; but the affidavit is only prima facie suffi- cient, and on a motion to quash, if the court is in doubt whether the attach- ment was duly issued, the plaintiff may be required to deliver a state- ment in the nature of a particular of the cause of action, or a copy of the instrument or writing upon which the writ was issue d Shadduck v Marsh, 21 N J L 434; Day v Bennett, 18 N J L 287 New York The manner in which the nature of the demand is required to be set out in New York corre- sponds more nearly to the particu- larity of statement required in plead- ing than it does in any other stat e The facts from which the indebted- ness arose must be given in consider- able detai L Manton -v Poole, 67 Barb ( N Y) 330 ; Pomeroy v Ricketts, 27 Hun ( N Y) 242; Smith v Davis, 29 Hun ( N Y) 306; Wes- sels v Boettcher, 69 Hun ( N Y) 306 And an omission to state the origin of the cause of action has been held fata L Richter v Wise, 6 Thom P C ( N Y) 70; and see Matter of Hol- lingshead, 6 Wen d ( N Y) 553; Smith v Luce, 14 Wen d ( N Y) 237; Hitner v Boutilier, 67 Hun ( N Y) 203; Duryea v Rayner ( C PL), 32 N Y Supp 247; Cattaraugus Cutlery Co v Case (Supreme Ct), 9 N Y Supp 862; Zeregal v Benoist, 33 How Pr ( N Y SupeRCt) 129 But it is sufficient, in alleging a contract, to give its legal substance and effect without producing the original or a copy, where it is in writ- in g Conduris v Imperial Tobacco, etc, Co ( C PL), 22 N Y Supp 695, 3 Mis C Rep ( N Y)66 Where there is an affidavit of indebt- edness in a certain amount for goods sold and delivered, it is sufficient, with- out alleging that the goods were not sold on credit.

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Force v Hub- bard, 26 Post Date: Sat, 2 Aug 2008 18:03:06 +0000
Kiefer v Webster, 6 Hun( N Y)526 It is not necessary that the affidavit should state in the precise language of the code that the cause of action was for a " breach of contract, express or implied, other than a contract to marry," if equivalent words were use d Edick v Green, 38 Hun ( N Y) 202 The affidavit must show a reason- ably plain case, and where it appeared that a part of the sum alleged to have 3 Ency C PL Pr 2 17 been loaned was advanced on the day the affidavit was made, the attach- ment was vacated, the court being of opinion that some explanation was re- quired in order to show that the amount loaned became due on the same da Y Reilly v, Sisson, 31 Hun ( N Y)572 Where several causes of action are set forth, some of which belong to neither of the classes specified in the statute, the attachment cannot issu e Union Conso L Mi N Co v Raht, 9 Hun ( N Y) 208 The Evidence which plaintiff will be required to produce at the trial need not be set forth in the affidavit, Lanier v City Bank, 9 Civ Pro Rep ( N Y Supreme Ct ) 161, a case where a de- mand and refusal to pay a promissory note, and the notice thereof, were held to be sufficiently allege d 1 Alabama Starke v Marshall, 3 Ala 44; Fleming v Burge, 6 Ala 373 California Hawley v Delmas, 4 Ca L 195; Hathaway v Davis, 33Cal161 Georgia Moore v, Neill, 86 Ga 186 Illinoi S Fisher v Secrist, 48 Fed Rep (District of Illinois) 264 Kansa S Ferguson v Smith, 10 Ka N 394 KentucKy Hardy v Trabue, 4 Bush (Ky) 644; Hickman v Gest, Har d (Ky) 102, not e Michiga N Howell v Dickerman, 88 Mich 361 ; Wilson v Arnold, 5 Mich 98 ; People v Blanchard, 61 Mich 478 Missour I Curtis v Settle, 7 Mo 452 Nebraska Ellison v Tallon, 2 Neb 14; Rouss v Wright, 14 Neb 457; Dor- rington v Minnick, 15 Neb 397 New York Matter of Hollings- head, 6 Wen d ( N Y) 553; Pomeroy v Ricketts, 27 Hun ( N Y) 242; Smith v Davis, 29 Hun ( N Y) 306; Manton v Poole, 67 Barb ( N Y) 330; Richter v Wise, 6 Thom P C ( N Y) 70; Wessels v Boettcher, 138 N Y 654; Marinette Iron Works Co v Reddaway (SupeRCt), 13 N Y Supp 426 ; Hodgman v Barker (Su- preme Ct), 14 N Y Supp 574 Ohio Coston v Paige, 9 Ohio St Tennessee Willey v Riorden, 2 Baxt (Tenn) 227 Collateral Attac K In Sullivan v appear in the affidavit whether the debt which is the foundation of the plaintiff's claim is due at the time of making the affidavit or is to become due in the futur e 1 Fugate, i Heis K (Tenn) 20, a non- compliance with the statute in this particular the proceedings being be- fore a justice of the peace without an appearance by the defendant, and the defect appearing on the record was held to render the proceedings void upon a collateral attac K See also Everett v Carleton, 85 Me 397 F I F A instead of Judgment. An affi- davit of a certain amount due upon a fieri facias, instead of deposing as to the indebtedness upon the judgment itself, is sufficient. Force v Hub- bard, 26 Ga 289 Eeference to Petitio N Where the statement of the plaintiff's claim in the affidavit shows that it is one for which an attachment may issue, but is not so full as might be desired, reference may be had to the petition to ascertain the precise nature of the plaintiff's clai M Hart v Barnes, 24 Neb 782 See also Edick v Green, 38 Hun ( N Y) 202 Allegation of Contra Ct Where the statute required the affidavit to state that the plaintiff's claim arose on a contract, and the plaintiff did not swear positively to a contract, but swore to certain facts from which a contract might be inferred, the affi- davit was held insufficient and the at- tachment was quashe d Jacoby v Gogell, 5 S R(Pa) 450; Quarles v Robinson, 2 Pi N (Wi S)97 See Black- wood v Jones, 27 Wi S 498, where the affidavit stated that a certain sum was due "for running certain logs, "etc; Robinson v Burton, 5 Ka N 293 An affidavit has been held sufficient which stated the indebtedness to be upon an express contract, without de- scribing more particularly the nature of the contra Ct Drew v Dequindre, 2 Doug L (Mich) 93 And see Buehler v De Lemos, 84 Mich 554 An affidavit that certain named per- sons, " a copartnership under the firm name of the L H S RCo, are in- debted " to affiant, etc , imports a joint partnership debt, and will support an attachment against such of them as are nonresident S Miller v Bay Cir- cuit Judge, 41 Mich 326 It has been held sufficient to state that the claim was for a certain sum "now due and payable to the plaintiff from the defendants on an account for merchandise sold by the defendants on commission for the plaintiff" Fer- guson -v Smith, 10 Ka N 394; Dorring' ton v Minnick, 15 Neb 397 See also Phelps v Young, i 111 327; Haywood v McCrory, 33 111 459; Theirman v Vahle, 32 Ind 400 In Hall v Kintz, 2 Pa DiSt Rep 615, the omission to state the place where the goods were purchased was held not to be fatal, but it was said to be good practice to insert it.

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1 676), the court held Post Date: Sat, 2 Aug 2008 17:51:50 +0000
Allegation of Promissory Not e An affidavit sufficiently describes the de- fendant's indebtedness which states that he is indebted in a certain sum for which he has given his not e Hay- wood v McCrory, 33 111 459 While such note should be so specifically de- scribed as to bar another action upon it, Monroe v Castleman, 3 A K Marsh (Ky) 400, an affidavit has been held sufficient which failed to show that a promissory note executed by the defendant and another, and joint and several in form, was executed by any person other than the Defendant Dunlap v McFarland, 25 Ka N 488 See also Fremont Cultivator Co v Fulton, 103 Ind 393; Bond v Patter- son, i Blackf (Ind) 34; Harlow v Becktle, i Blackf (Ind) 237; Powers v Hurst, 3 Blackf (Ind) 229; Califor- nia Bank v Boyd, 86Cal386 Joint Debtor S If an affidavit against two joint debtors be insufficient as to one of them, it will not authorize an attachment against the property of bot H Hamilton v Knight, I Blackf (Ind) 25 See also Courrier v Cleg- horn, 3 Greene (Iowa) 523; Chittenden v Hobbs, 9 Iowa 417; Hisler v Carr, 34Cal641 But where both of the joint debtors reside out of the state, the affidavit need not recite that the indebtedness is upon a joint contra Ct Dobbs v Murray County Justices, 17 Ga 624 1 Blakley v Bird, 12 Iowa 601 ; Kelly v Donnelly, 29 Iowa 70; Thompson v Towson, iHar M (Md) 504; Cross v McMaken, 17 Mich 511; Mathews v, Densmere, 43 Mich 461; Ruppert v Haug, 87 N Y 141; Whitney v Brunette, 15 Wi S 61; Bowen v Slo- Qualifying Word S Qualifying words, such as those alleging or showing the justness of the plaintiff's claim, or negativing the ex- istence of counterclaims, etc, if such words appear in the statute, should not be omitted from the affidavit ; * but it is quite gener- cum, 17 Wi S 181; Trowbridge v Sick- ler, 42 Wi S 417 Actually Du e An affidavit that the sum demanded is actually due means simply that the day for payment has arrived according to the contra Ct Zinn v Dzialynski, 13 Fla 597 See also Turner v McDaniel, I McCord ( S Car) 552; Green v Raymond, 9 Neb 295; Seidentopf v Annabil, 6 Neb 524; Reed v Maben, 21 Neb 696 Secoad Applicatio N Where applica- tion is made for a second attachment on the ground of the insufficiency of the property originally attached, the affidavit must show the continued existence of the debt as if it were an original applicatio N Favrot v Delle Piane, 4 La An N 584 " Claimed" to be Du e An affidavit referring to a certain sum as a balance " claimed to be due from the defend- ant" is not a sufficient averment of fa Ct Lee v Co-operative L A As- so C (Supreme Ct), 19 N Y St Rep 879 Statement should be CleaRWhere the debt for which the attachment is sued out is not yet due, the statement of the claim should be clear and un- equivoca L Friedlander v Myers, 2 La An N 920; Harrison v King, 9 Ohio St 388 But it is sufficient if the affi- davit contains a plain statement of what the indebtedness-comprises and what portion is not du e Hinzie v Moody, i Tex Civ App 26 See also Johnson v Buckel, 65 Hun ( N Y) 601 ; Munzenheimer v Manhattan Cloak, etc, Co, 79 Tex 318; Osborne v Powell, 17 La An N 169 Immaturity of Debt Apparent. Where the instrument sued upon, which is the foundation of the attachment, shows upon its face that it has not matured, it is unnecessary to allege that the debt is not du e Panhandle Nat Bank v Still, 84 Tex 339 Attachment Issued upon Debt not Due Prima Facie Voi d It has been held that an attachment issued before the maturity of the debt is prima facie void as against a subsequent attach- ment, Patrick v Montader, 13Cal434; and as against creditors whose rights are injuriously affected by it, Davis v, Eppinger, 18Cal378 But in Coghill v Marks, 29Cal673, it was held that notwithstanding the debt upon which the attachment was issued was not due at the institution of the suit, a subsequent attaching creditor could not by intervention postpone the lien of the first attach- ment to his own unless it had been fraudulently obtaine d 1 U S Banking Co v Bachman, 38 W Va 84; McCrea v Muskegon Cir- cuit Judge (Mich, 1894), 58 N W Rep 1118 Justness of Clai M In Kentucky where the statute requires an averment in the affidavit of the justness of the plaintiff's claim, an omission to so aver has been held fata L Taylor v Smith, 17B Mo N (Ky) 536; Worthington v Gary, i Mete (Ky) 470; Allen v Brown, 4 Mete (Ky) 343; Bailey v Beadles, 7 Bush (Ky) 384 But in the same state it was held that an affidavit defective in not stat- ing that the claim was just might be amended either before or after a mo- tion to discharg e Allen v Brown, 4 Mete (Ky)344; Bailey v Beadles, 7 Bush (Ky) 384 Where, however, the statute re- quires the affidavit merely to show that the plaintiff's claim is just, it is sufficient either to simply allege that it is just, or, without such direct state- ment, to allege facts concerning the plaintiff's claim which show that it is juSt See also Simon v Johnson, 7 Kulp (Pa) 166 Thus an affidavit alleging that the plaintiff's claim was "for the amount of money that he was compelled to pay for and on ac- count of a judgment on a bond or writing obligatory, wherein the said defendant was principal and the plain- tiff was security, and which said plaintiff did pay for the benefit of said defendant, that the sum so paid, and for which the defendant is indebted to him, amounts," etc, was held suffi- cient as showing that the plaintiff's claim was juSt Wilkins v Tourtellott, 28 Ka N 825 In Burnett v McCluey, 92 Mo 230 (overruling Bray v McClury, 55 Mo 128, and Burnett v McCluey, 78 Mo ally held that the omission from the affidavit of words which do not affect its substantial compliance with the statute will not vitiate it. 1 676), the court held that an affidavit which stated that the defendants were nonresidents, but which did not state that the plaintiff had a just claim, would not render the proceedings vulnerable to collateral attac K Omission of Word " Justl Y" -- The mere omission of the word "justly" has been held sufficient to invalidate the affidavit.

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U S Net, etc, Co Post Date: Sat, 2 Aug 2008 17:34:00 +0000
Evans v Tucker, 59 Tex 249 But see Livengood v Shaw, 10 Mo 273; Thompson v Towson, i HaR M (Md) 504; Reed v Mc- Cloud, 38 W Va 701 " At the LeaSt " Where the statute requires the affiant to swear that the amount is " at the least " so much, an affidavit omitting such phrase is in- sufficient. Dulin v McCaw ( W Va, 1894), 20 S E Rep 681; Crim v Har- mon, 38 W Va 596 Itemized Claim S In a suit upon sev- eral distinct claims, it is not necessary that the affidavit should allege that there is no counterclaim as to each item of the complaint. U S Net, etc, Co v Alexander (City Ct), 18 N Y Supp 147 Negativing Existence of Counter- claim S Where the statute requires the affidavit to state that the amount due is over and above all counter- claims, or to negative the existence of counterclaims, an affidavit failing to so allege is defectiv e Norfolk, etc, Hosiery Co v Arnold (Supreme Ct), 18 N Y Supp 910; Wells v Parker, 26 Mich 102 See generally, as to the sufficiency of the averment to meet the requirement of the statute, Hart v Bernau, 67 Hun ( N Y) 652, 22 N Y Supp 296; McEntee v Aris, 66 Hun ( N Y)35; Dolbeer v Stout (SupeR Ct), 17 N Y Supp 184; Essex County Nat Bank v Johnson, 61 Hun ( N Y) 625; Barstow Stove Co v Darling (Supreme Ct), 30 N Y Supp 1033; Central Nat Bank v Ft.

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Drake v Hager, 10 Iowa Post Date: Sat, 2 Aug 2008 17:20:22 +0000
Ann Woolen Co (Supreme Ct), 24 N Y Supp 640, 27 N Y Supp 1114; Mann v Carter, 71 Hun ( N Y) 72; Mallary v, Allen, 15 Abb N Ca S ( N Y City Ct) 338; Marine Nat Bank v Ward, 35 Hun ( N Y) 395; Smith v Arnold, 33 Hun ( N Y)484; Bates v Pinstein, 15 Abb N Ca S ( N Y City Ct) 480; Lamkin v Douglass, 27 Hun ( N Y) 517; Kingston v Miranda, 12 Civ Pro Rep ( N Y Supreme Ct) 439; Mojar- rietta v Saenz, So N Y 551; Acker v Jackson, 3 How Pr N S ( N Y Supreme Ct) 160; Taylor v Reed, 54 Ho W Pr ( N Y Marine Ct) 27; Butterworth v Boutilier (Supreme Ct), 22 N Y Supp 872; Cribben v Schillinger, 30 Hun ( N Y) 248; Grib- bon v Back, 35 Hun ( N Y) 541; First Nat Bank v Bushwick Chemical Works (Supreme Ct), 5 N Y Supp 824; Geneva Non-Magnetic Watch Co v Payne (Supreme Ct), 5 N Y Supp 68; Manufacturers' Nat Bank v Hall, 60 Hun ( N Y) 466; National Park Bank v, Whitmore, 40 Hun ( N Y) 499 A Plaintiff Suing on Assigned Claims need not swear as to counterclaims existing against his assignoRIt is sufficient that he avers a sum to be due over and above all counterclaims known to the affiant. Crowns v Vail, 51 Hun ( N Y) 204 1 Buchanan v Sterling, 63 Ga 227; Kennedy -v Morrison, 31 Tex 207; Ludlow v Ramsey, n Wal L (U S) 581; Hughes v Martin, i Ark 386; Foran v, Johnson, 58 Md 144; Liven- good v Shaw, 10 Mo 273; Gutman v Virginia Iron Co, 5 W Va 22 Thus, under a statute requiring the affidavit to state that the defendant is " in some manner about to dispose of his property," etc, the omission of the words " in some manner " was held not fatal to the affidavit. Drake v Hager, 10 Iowa 556 See also Grover v Buck, 34 Mich 519; Trowbridge v, Sickler, 42 Wi S 417 Immaterial Allegation S Where the affidavit was required by statute to al- lege that the defendant was justly in- debted to the plaintiff "in a sum ex- ceeding fifty dollars," and that the sum should be specified, it was held that an allegation that the defendant was indebted to the plaintiff in the sum of three hundred dollars was suf- ficient without the insertion of the words "in a sum exceeding fifty dol- lar S" Hughes v Martin, i Ark 386 And where the statute authorized an attachment when the defendant " is about to convey, etc, so as to de- fraud, hinder, or delay his creditors," C STATEMENT OF GROUNDS OF ATTACHMENT (i) Generall Y While the plaintiff may usually charge in his affidavit one or all of the statutory grounds of attachment, 1 if he allege more than one, they should be stated cumulativel Y 2 (2) Allegation of Knowledge and Belief .

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