Miller v. Munson , 34 Wis. 579 ( 1874 )

LyoN, J.

The only question necessary to be determined on •this appeal, is, whether the affidavit for the writ of attachment ■is sufficient to support the writ. If it is sufficient, the judgment should be reversed; if not, the • judgment should be affirmed.

The affidavit is in the language of the statute. This is some- ’ times súfficiént, but not so'in all cases. We must look for some other test by which to determine its sufficiency. - The "proceeding by attachment is very summary and violent. The purpose of the law which requires that a certain affidavit be made before the writ can issue, is to protect the alleged debtor from so severe a process, unless the creditor, or some person in bis behalf, under the responsibilities of an oath, shall assert the existence of certain facts which the law adjudges good grounds' for issuing the writ. This requirement of the law would afford the debtor no protection whatever, unless the affiant is liable to be punished criminally if he willfully swears falsely in such affidavit. Hence, although the affidavit be in the very words of the statute, it is not sufficient, unless perjury can be assigned upon it. Here, then, we find the true test of the sufficiency of an affidavit which employs the language of the statute.

In Spring v. Robinson, 2 Pinney, 97 (1 Chand., 29), Chief Justice Stow is reported to have laid down the same rule. See note of Mr. Pinney, p. 99, and eases cited. In Lathrop v. Snyder, 16 Wis., 293, and in Oliver v. Town, 28 id., 328, the above test was applied; and the affidavit in the former case was held insufficient, and that in the' latter casé was held sufficient. In Lathrop v. Snyder, the affidavit stated the indebtedness at a specified sum, “ as near as this deponent can now estimate the same; ” and it was said by the chief justice that there might be no indebtedness and yet the affiant be innocent of perjury; in other words, that perjury could not be assigned on the affidavit under any circumstances. In Oliver v. Town, the qualifying words, “ as near as may be,” accompanied the statement of the amount of the indebtedness, being the words used in the statute in that connection. It was held that the use of these words did not leave it doubtful whether anything was actually due the plaintiff, neither did it leave the amount of such indebtedness in doubt. Although not so stated in the opinion in that case, yet it necessarily follows from the effect given. to such 'qualifying words, that perjury may be assigned upon such an affidavit.

It only remains to apply the above test to the affidavit under consideration. Can perjury be assigned upon this affidavit? If it can be proved that the affiant hacl no reason to believe, and did not believe, when he made the affidavit, that Travis had made or was about to make the fraudulent disposition of his property therein mentioned,, can the affiant be lawfully indicted, convicted and sent to the state prison for perjury committed in swearing to the facts stated -in such affidavit? We think not. After carefully considering the very ingenious argument of the learned counsel for the defendants in support of the position that the word “ any," as used in the affidavit, is synonymous with “ some” we are impelled to the conclusion, that in a prosecution for perjury, the court would not be justified in adopting the construction contended for, but would be compelled to hold that a charge of perjury based upon the portion of the affidavit under consideration could not be sustained.

It follows from these views that the judgment jmust be affirmed.

By the Court. — Judgment affirmed.