Quarles v. Robinson

1 Chand. 29 | Wis. | 1849

Stow, C. J.

We should be glad to affirm this judgment, for we are satisfied that substantial justice has been done, and that there is no irregularity subsequent to the incipient proceedings. But the original affidavit, on which the attachment issued, is too defective to give jurisdiction. Though the entitling, irregular as it is, might, perhaps under the practice of the late district courts be permitted; the describing it of October term, 1847, when in fact, it was of the preceding April term, being sworn to in June, is too palpably erroneous to be overlooked.

Again, we are of opinion that the affidavit is defective in not swearing positively to the indebtedness. This being a statutory proceeding of a somewhat harsh character, and wholly different from that of the common law, the provisions of the act must be strictly observed, and nothing can be presumed or taken by inference. In the first instance, the affiant swears directly and clearly to the indebtedness ; and had he stopped here, only adding the character of the debt, the affidavit would have amdoubtedly been sufficient. But instead of simply describing the nature of the debt, he says that it is pursuant to a judgment of the supreme court of Louisiana. This -will not do. The word pursuant has several meanings, some of which, in the connection the word is here used, would qualify the positive declaration before made into a mere assertion that, according to the judgment, so much was due. This was not enough. 1 McLean, 471; 1 Durn. & East, 406. According to — as appears from — by the terms of — pursuant to — or other equivalent terms referring to the judgment, may be all true, and yet, in point of fact, nothing be due upon it. For these defects in the affidavit the judgment is reversed.

Note. — The chief justice, in addition remarked, that the test of the sufficiency of an affidavit was, whether the party making it could be indicted for perjury if the matters stated were false > and that an affidavit entitled in a suit, when no suit was pending in the court, in which the title purported it was made, and which affidavit was made for the purpose of obtaining process, by which a suitshould be commenced, was not such an affidavit as that a prosecution for perjury could be sustained upon it, though false in fact.

In support of this opinion, see 2 Cow. 500; 7 Term, 455; 1 Bos. & Pul. 36,227 ; 2 Johns. 372; 12 id. 461.