Heard & Co. v. Lowry , 5 Ark. 522 ( 1844 )

By the Court,

Sebastian, J.

It is clear from a review of the statutes regulating the manner of bringing attachments, that the circuit court erred in overruling the motion of the plaintiff to strike out the defendant’s plea in abatement of the writ. Sec. I, Rev. Stat. p. 1, requires all pleas in abatement to be verified by affidavit of the defendant or some person for. him, unless the truth of such plea appears of record. By inspection of the record the proceedings appear to be regular, and that a statement of plaintiff’s demand set out in his declaration was filed in the clerk’s office on the same day the writ issued. The record wholly fails to support the plea, unless the variance between the sum stated in the declaration and that sworn to by plaintiff in his affidavit, is intended to be reached by the plea. This difference, however, in the two sums, is unimportant, as tha tstated in the affidavit, which is the lesser sum, must be taken to be the real amount due, and the 2d sec., chap. 13, Rev. Stat., requires not the true sum but the nature of the demand to be set forth in the declaration. The statute is therefore in this particular strictly pursued, and the plea should, for*want of an affidavit of its truth, have been stricken out.

The consequence of treating the plea as a nullity would be that the exceptions to the affidavit should have been stricken out also. The 29th section of the same act provides also that “if the defendant shall appear and plead to the plaintiffs’ action,” &c., and shall except to the affidavit upon which the attachment was issued, and the court shall sustain such exceptions, the common appearance of the defendant shall be accepted, the attachment-dissolved, &c., “and the suit proceed as other suits at law.” Under this statute, in order to file exceptions to the affidavit, the defendant must first “plead to the action.” By this we do not understand the statute to mean a plea in bar of the action, which would waive all defences prior to this in the order of pleading; but a plea, which may be treated as a nullity, certainly does not satisfy the requisitions of the statute or authorize the party to except to the plaintiff’s affidavit. Moreover, the affidavit was in substantial compliance with the statute. It stated the sum due; and that the defendant, as he believed, was about removing beyond the State. Had the plaintiff stated it positively, as the statute seems to require, it would have been only a matter of belief, the result of a strong moral conviction, from circumstances tending to prove that intention. For these reasons it is clear that the motion to strike out the plea and exceptions ought to have been sustained.

The judgment must be reversed, and the circuit court required to strike out said plea and exceptions, and proceed, &c.