| Ala. | Dec 15, 1880
An attachment, issuing without the affidavit required by law, is subject to abatement, on the plea of the defendant.—Jones v. Pope, 6 Ala. 154" court="Ala." date_filed="1844-01-15" href="https://app.midpage.ai/document/jones-v-pope-6502136?utm_source=webapp" opinion_id="6502136">6 Ala. 154; Kirkman v. Patton, 19 Ala. 32" court="Ala." date_filed="1851-01-15" href="https://app.midpage.ai/document/kirkman-v-patton-6504478?utm_source=webapp" opinion_id="6504478">19 Ala. 32. The statute is imperative, that the affidavit must be made, prior to, or cotemporaneous with the issue of the writ — it cannot be made subsequently, though, if erroneous in form, it may be amended. The definition of an' affidavit, approved by this court in Watts v. Womack, 44 Ala. 607, is, “an oath in writing, sworn before some judge or officer of a court, or other person legally authorized to administer it; a sworn statement in writing.” The duty the statute devolves on an officer, issuing an attachment, is the requisition of the plaintiff, or of his agent or attorney, of an oath in writing, subscribed by the affiant, stating the amount of the debt or demand, the cause or ground for the issue of the writ, and a disavowal of a purpose to vex or harass the defendant. When this oath is made, and reduced to writing, the statute is satisfied, and the right to the issue of the writ is perfected. The issue of the writ is the exercise of power in its nature judicial.—Matthews v. Sands, 29 Ala. 138. The purpose of the affidavit is to satisfy the conscience of the officer, that a state of facts exists, in which the plaintiff has a right, and it is his duty to issue extraordinary process for the seizure of the property of the defendant.
The statute is silent, as to the officer before whom the affidavit must be made ; though" the practice has been, and it is usually more convenient, to make it before the officer issuing the writ. All officers, who have authority to issue the writ, have also authority to take affidavits, in all cases in which by law they are required, unless there be some special provision to the contrary. The precise point of controversy now raised is, that the affidavit was made before the clerk of the Circuit Court of Bullock county, and the writ was issued by the clerk of the Circuit Court of Macon county. Clerks of the Circuit Court have a general authority “to administer oaths, and take .affidavits, in all cases in which the authority to administer such oath is not confined to some other officer.” Code of 1876, § 676. The statute does not confine, does not limit or restrain to the officer issuing an attachment, the authority to take the affidavit. All its requisitions are, that the affidavit shall be in writing, subscribed by the affiant, stating the amount of the debt or demand, a sufficient cause for the issue of the writ, a negative of a purpose to vex or
Affirmed.