Neal v. Gordon

60 Ga. 112 | Ga. | 1878

Bleckley, Judge.

1. The security on replevy bond in attachment, has no opportunity to defend during the trial. He is bound by the judgment, if the judgment is legal; but there can be no legal judgment as to him where the attachment is void. An adverse ruling, made on the motion of the principal to dismiss the attachment, is not conclusive upon the security. A motion by the latter in arrest of judgment as to himself, will be entertained if made at the same term of the court.

.2. The ground of attachment must be sworn to positively, though the debt may be sworn to in a more qualified manner. 9 Ga., 598. The language used in the affidavit must be such as not to leave it doubtful whether the oath is positive or not. The requisite of positiveness forbids all ambiguity. What is ambiguous is not positive. An affidavit by the creditor’s attorney, that, “ to the best of his knowledge and belief,” the indebtedness exists, and that the debtor resides out of this state, is ambiguous; for the phrase, “ to the best of his knowledge and belief,” may qualify both propositions. On an indictment for perjury, the affiant would be protected as to either proposition by the qualifying words. These words are a canopy to cover him; and will serve for shelter, no less as to the ground of attachment than as to the fact and the amount of the indebtedness. But in swearing to the ground of attachment, the affiant must expose himself fully. He must commit himself absolutely. The judgment was properly arrested.

Cited for plaintiff in error: Code, §§3282-3; 36 Ga., 89; 26 Ib., 514; 44 Ib., 454; Code, §4, (paragraphs 1 and 6).

Cited for defendant in error: Chitty’s Pleadings, 237; Stephen’s Pleadings, 378; 5 Conn., 422; 9 Ga., 598; 28 Ib., 351; 54 Ib., 678; 53 Ib., 558; 52 Ib., 332; 48 Ib., 12; 44 Ib., 454; 18 Ib., 287; 19 Ib., 223; 30 Ib., 938; Code, §204.

Judgment affirmed.