Hopkins v. Nichols

• Decision Date: 01 January 1858
• Citation: 22 Tex. 206
• Parties: ANDREW N. HOPKINS v. Q. J. NICHOLS.
• Court: Texas Supreme Court

22 Tex. 206

ANDREW N. HOPKINS

v.Q. J. NICHOLS.

Supreme Court of Texas.

1858.

An attachment will be quashed, if issued upon an affidavit alleging, in the disjunctive, the existence of one or the other of two distinct causes for the attachments, as that the defendant has transferred, or secreted, his property, for the purpose of defrauding his creditors; but it is otherwise, where two phases of the same general fact are stated in the disjunctive, as that the defendant so absconds, or conceals himself, that process cannot be served. 26 Tex. 348, 195;29 Tex. 247.

See this case, for the construction of the first section of the act regulating attachments, passed July 24th, 1856. Old. & Wh. Dig. art. 43, p. 41.

APPEAL from Travis. Tried below before the Hon. A. W. Terrill.

The agreed statement of the case made by the parties, and approved of by the judge, under the act of 7th Leg. p. 112, showed that an attachment issued from the court below, in favor of Hopkins, the appellant, against Nichols, the appellee; and the only question involved in the case, for the consideration of this court, was, as to the sufficiency of the plaintiff's affidavit, in setting out the causes for suing out the attachment, which was in these words: “also, that the said defendant, Q. J. Nichols, is about to transfer, or secrete, or has transferred, or secreted, his property, for the purpose of defrauding his creditors.”

On motion of the defendant, the attachment was quashed, and cause dismissed; and the plaintiff took his appeal to this court.

Brownrigg, for appellants. Although it is admitted, that an affidavit for an attachment, which sets forth two separate and distinct causes, and connects them with the disjunctive “or,” is bad, for uncertainty; yet, where the disjunctive is used to characterize two or more phases of the same fact, attended with the same result, the construction is otherwise; it then becomes copulative. Drake, Attach. §§ 110, 111, 113. It was held, in the case of Cannon v. Logan, 5 Port. 77, that an affidavit for an attachment, where the charge was, that the debtor “absconded or secreted himself,” was sufficient; and that, in such cases, the word “or” is not disjunctive. See also Conrad v. McGee, 9 Yerg. 428, where it was held that, in such cases, the word “or” is copulative, and both or either, are sufficient ground.

Hamilton and Sublett, for appellee. The affidavit is defective, not that it is strictly in the alternative, that one of two facts is true, but that one of four facts is true. It is defective, for the uncertainty as to which of the causes is relied on. It is defective, from the fact, that no indictment could be sustained in case the affidavit is false.

BELL, J.

This suit was commenced by the appellant, in the court below, against the appellee, by attachment.

The affidavit, upon which the attachment issued in this case, is in the following words: “that the said defendant, Q. J. Nichols, is about to transfer, or secrete, or has transferred or secreted, his property, for the purpose of defrauding his creditors.” It is admitted, that the affidavit was, in its other parts, formal; and it is also admitted, that all the proceedings, after the issuance of the attachment, were regular. The only question, therefore, which is presented to this court, is, whether or not the words, above quoted, constitute a good affidavit to support an attachment.

The general rule is well established, and is admitted by the appellant, that an affidavit for an attachment must be certain and positive, and not in the alternative. It was objected by the appellee, in the court below, that this affidavit was bad; that it was not only in the alternative, but otherwise and necessarily vague and indefinite. The court below sustained the appellee's exceptions to the affidavit, and dismissed the cause.

We are of opinion, that the court below did not err in sustaining the exceptions to the affidavit. It is true, as is contended by the appellant, that the conjunction “ or“” is not always disjunctive in its signification. There are familiar instances given in the law books, in which the conjunction “or” is held to be equivalent in meaning to the copulative conjunction ” and;“ and such meaning is often given to the word or, in deeds, and in wills, for the purpose of carrying out the intention of ...