Lamkin v. Douglass ( 1882 )

By the Court:

An attachment against property under the Code is auxiliary to an action. It is not the beginning of a distinct and special proceeding. We think, therefore, that papers should not be judged with that strictness which is used when they form the sole basis of jurisdiction.

The words “ known to him ” are intended rather in relief of the conscience of the affiant. One- might hesitate to state positively that the amount claimed was due to him, over and above all counterclaims, since some counter-claims might exist of which the affiant had no knowledge. The omission of these words, therefore, strengthens rather than weakens the affidavit. Nor can we adopt a construction which would render it necessary that the affidavit should always be made by the plaintiff, and could not be made by an agent. We must consider that the intent is to satisfy the court that the amount claimed is really owing. Sometimes the agent of the plaintiff may know more of the matter than the plaintiff himself.

We think that it is not necessary that the precise words of the Code should be used, if words are used which are equivalent. Proof is to be made, to the satisfaction of the judge, of such and such facts. If there is evidence on which he may lawfully be satisfied of the truth of the matters required to be shown, that is enough. (Ruppert v. Hall, 1 Civ. Pro. Pep., 411, 417.)

Now, without discussing at any length the precise etymological meaning of the words “ discounts and set-offs,” we think that, in ordinary use, they have such meaning that a judge might feel satisfied by their use that there were no counter-claims to the plaintiffs’ demand. Especially when, as in this case, the affiant sets forth, in detail, the facts and circumstances in regard to the transactions between the parties. The object of this part of the affidavit is to show that the plaintiff has, so far as he knows, a valid claim against the defendant, to the extent for which he asks an attachment. We think that enough was shown to justify the issue of the attachment, and that it should have been allowed to stand.

The undertaking was perhaps defective in respect to the mode of signature. At any rate, we think that the defendant should' not have any risk in that respect. The plaintiffs should, therefore, file a new undertaking, properly signed and acknowledged and justified.

The order setting aside the attachment is reversed, with ten dollars costs and printing disbursements, and the motion to set aside denied, providing the plaintiff, within ten days, file a proper undertaking, duly signed, justified and acknowledged.

Present — Learned, P. J., and Bockes, J.

Order reversed, with ten dollars costs and printing disbursements, and motion to set aside attachment denied, provided plaintiffs, .in ten days after motion, file an undertaking properly executed.