42 Wis. 417 | Wis. | 1877
If the affidavit annexed to the writ of attachment is a substantial compliance with the statute in that behalf, the rejection of the testimony offered to prove the defense set up in the answer of the defendant was error. The only objection urged to the affidavit is, that it fails to state, in terms, that the indebtedness, to recover which McDonald brought his action, was due. The statute is as follows': “ Before any writ of attachment is executed, the plaintiff, or some person in his behalf, shall make and annex thereto an affidavit, stating that the defendant named in such writ of attachment is indebted to the plaintiff, stating the amount of such indebtedness, as near as may be, over and above all legal setoffs, and that the same is due upon contract, express or implied,” etc. E. S., ch. 130, sec. 2.
The question of the sufficiency of the affidavit depends upon the meaning of the word indebted, as used therein and in the statute. In Quarles v. Robinson, 2 Pin., 97 (1 Chand., 29), Stow, C. J., discussing the sufficiency of an affidavit for a writ of attachment, said: “ 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 undoubtedly been sufficient.” This is saying, in effect, that, by swearing to an indebtedness, the affiant deposed, ex vi termini, that there existed a cause of action; for the law then in force required that fact to be proven by affidavit. Laws of 1842, p. 21. In Lenox v. Howland, 3 Caines’ R., 323, the
The foregoing authorities all tend to sustain the position that indebted or indebitatus is a legal term, having a legal signification, and that it implies a debt presently payable, and not debitum in presentí, solvend,v/m i/n futuro. We think this is the legal significance of the term, and that it is so employed in the statute under consideration.
Probably the statement required in the affidavit that the indebtedness “ is due upon contract,’-’ means nothing more than that it arose upon contract. It is quite apparent that the requirement relates only to the origin or nature of the indebtedness. But whatever may be the interpretation of the word due as employed in the statute, we are satisfied that all it can be claimed to express is better expressed in the averment of an indebitatus.
It follows from the foregoing views that the affidavit'is sufficient, and that the defendant should have been allowed to introduce testimony under his answer.
I may be permitted to observe here, that the affidavit states substantially that there is a cause of action for the alleged indebtedness. Although we do not pass upon the point, I -am strongly inclined to the opinion that this averment renders the affidavit sufficient, even though it should be held that, without the avennent, the omission of the word due is fatal; for
There are some early cases in this court which hold a very strict rule in respect to the form of these affidavits. Among them are Whitney v. Brunette, 15 Wis., 61, and Bowen v. Slocum, 17 id., 181. But in several later cases such strictness has been greatly relaxed. Oliver v. Town of La Valle, 28 id., 328; Mairet v. Marriner, 34 id., 582; Ruthe v. Railroad Co., 37 id., 344. In the two cases first cited, it was held that an affidavit for an attachment was fatally defective which failed to state, in terms, that the indebtedness was due. But these decisions went to a certain extent upon the literal terms of the statute, and the attention of the court was not directed to the legal effect of the statement of an vndebitatus. In Whitney v. Brunette there were other defects in the affidavit, indisputably fatal. The rule of those cases was disregarded in Ruthe v. R. R. Co., supra, and is in conflict with the conclusions we have reached in the present case. Those cases must, therefore, be considered thus far overruled.
In this connection reference should also be made to the case of Blackwood v. Jones, 27 Wis., 498. That was an attachment suit before a justice of the peace. The plaintiff’s affidavit for the writ stated that the defendant “ is indebted to this affiant in a sum exceeding five dollars, to wit, in the sum of eighty dollars, over and above all legal setoffs, and that the same is due for running certain logs from the Pigeon river to "Wolf river in 1869.” It was claimed that the justice obtained no jurisdiction of the action, because the affidavit failed to state, in the words of the statute, that the indebtedness was due “ upon contract, express or implied.” It is said in the opinion that the attachment was void for that reason, but the judgment for the plaintiff was sustained, on the grounds that the justice had jurisdiction of the subject matter of the action, and obtained jurisdiction of the person of the defendant by his making a general appearance to the action. Of course the
In conclusion, we remark that we are of opinion tbafc this affidavit will endure tbe test stated in Miller v. Munson, 34 Wis., 579. If tbe debt was not presently payable when tbe affidavit was made, no valid reason is perceived why perjury cannot be assigned upon tbe affidavit, if tbe same was made knowingly and corruptly.
By the Court. — Tbe judgment of tbe circuit court is reversed, and tbe cause remanded for a new trial.