40 Tex. 32 | Tex. | 1874
So much of the affidavit upon which the attachment in this case issued to which it is necessary to refer reads as follows: “The said defendants, Green and Lavinia Carpenter, are about to transfer their property, or dispose of the same, for the purpose of defrauding their creditors, and that thereby affiant will probably lose his debt.” The act or acts indicating the fraudulent purpose of the appellant, by reason whereof the appellee might probably lose his debt, is alleged disjunctively to be the transferring or the disposing of their property. And unless it can be held that the ground alleged for the attachment in the second clause of the affidavit conveys the same legal import as the first, and may therefore be treated as surplusage, whatever may be the rule in some of the other States where similar statutes are in force, it is well settled by the decisions of this court that the affidavit is defective, and the motion to quash the attachment should have been sustained. (Hopkins v. Nichols, 22 Texas, 206; Garner v. Burleson, 26 Texas, 348; Culbertson v. Cabeen, 29 Texas, 247.)
In these cases the affidavits upon which the attachment issued were held defective, because, it being alleged in the affidavits that the defendants were about “ to transfer or secrete their property, the affidavits were not certain and positive, but allege alternatively two distinct and independent facts which in no sense could be considered as
The plaintiff in error, Green Carpenter, appeared by attorney, and, in connection with other pleas in bar, pleaded minority. No exception was taken, either to the order or manner in which this plea was presénted to the court. The precise issue raised by it seems to have been deemed unimportant, and to have attracted no attention in the further progress of the case. From the instructions given the jury by the court, without objection, so far as disclosed by the record, the plea of minority appears to have been treated by the parties and court as merely involving the question of liability for the goods
Reversed and remanded.