Marshall v. Alley

25 Tex. 342 | Tex. | 1860

Wheeler, C. J.

We are of opinion that the court did not err in its judgment dissolving the attachment. It is evident the plaintiffs’ agent, who made the affidavit, did not intend to make oath that two thousand dollars (the sum claimed in the petition) was the amount of the plaintiffs’. demand; for the petition itself showed that that sum was not due. The amount of the defendant’s indebtedness is not stated either in the petition or affidavit. It can only be arrived at by a calculation founded upon the statements of the petition of the amount of the note sued on, and the payments and: credits to which it is entitled. The statute is explicit “that the plaintiff, his agent, or attorney, shall make affidavit that the defendant is justly indebted to the plaintiff and the amount of the demand.” ' (O. & W. Dig., Art. 43.)

. The statute has not been complied with in terms, nor certainly in substance. It is not a necessary conclusion from the petition that the amount of the note, less the admitted payments, is justly due the plaintiffs. The defendant may have demands which he is entitled to have set off against the note. The requirement of the statute is plain and positive, and ought to be observed. A literal compliance is just as easy as a substantial or virtual compliance, and has the advantage that it avoids the necessity of construing language which may admit of different meanings. It leaves the party making the affidavit no room for evasion or equivocation. Proceedings in attachment are construed strictly; and so construed, we think the court rightly held the affidavit in this case insufficient.

In Morgan v. Johnson, cited by counsel for the plaintiffs, (15 Tex. R., 568,) the several sums due were distinctly stated. This is not done in the present case. We are of opinion that there is no- error in the judgment, and it is affirmed.

Judgment affirmed.