Taylor v. Reed , 54 How. Pr. 27 ( 1877 )

Mo Adam, J.

The attachment was granted under section 635 of the Oode of Civil Procedure, in an action for breach of contract. The affidavit upon which it was granted states the amount of the plaintiff’s demand, but fails to allege that he is entitled thereto “ over and above all counter-claims known to him,” as required by section 636. The provision in question is new and must be held to have been inserted for a purpose, and effect cannot be givén to it without holding the present affidavit defective. The conclusion that the omission in the affidavit is fatal would seem clear upon principle; but all doubt upon the subject is put at rest by the decision of the Albany general term of the supreme court in Kelly agt. Archer (48 Barb., 68), in which that court, in construing a similar provision applicable to justices’ .courts, held that where -the affidavit upon which the attachment was issued did not specify an indebtedness “over and above all discounts,” as required by the Revised Statutes (2 R. S., 230, sec. 28), the attachment was void; that the provision as to discounts was .an essential part of the affidavit, and the court remarked, “ as it was, there may have been an offset to the demand, and the balance may have been the other way.” For the omission aforesaid, the motion to vacate the attachment herein must be granted.