Fletcher, J.,
delivered the opinion of the court.
The affidavit, iipon which the note sued on was probated, was not made by the creditor, but by her husband as her agent. *678This brings the question squarely within the holding of this court in McWhorter v. Donald, 39 Miss. 779" court="Miss." date_filed="1861-10-15" href="https://app.midpage.ai/document/mcwhorter-v-donald-8257660?utm_source=webapp" opinion_id="8257660">39 Miss. 779, 80 Am. Dec. 97. It is true that appellant here offers some excuse for not making the affidavit which the statute requires, and also triie that this ■ excuse was wanting in the McWhorter case; but the decision is that case is based upon the peremptory requirement of the statute, a departure from which is fatal. Cheairs v. Cheairs, 81 Miss. 662" court="Miss." date_filed="1902-10-15" href="https://app.midpage.ai/document/cheairs-executors-v-cheairs-administrators-7988904?utm_source=webapp" opinion_id="7988904">81 Miss. 662, 33 South. 414; Walker v. Nelson, 87 Miss. 268, 39 South. 809. Affirmed.