Sydnor v. Another

• Decision Date: 01 January 1851
• Citation: 6 Tex. 189
• Parties: SYDNOR v. TOTHAM AND ANOTHER.
• Court: Texas Supreme Court

6 Tex. 189

SYDNOR

v.TOTHAM AND ANOTHER.

Supreme Court of Texas.

1851.

It is not sufficient in the affidavit for an attachment under the act of 1848 (Hart. Dig., art. 25) to swear that “the affiant has good reason to believe, and does verily believe, that the defendant is about to remove,” &c. The affidavit must be positive as to the fact and not merely state the affiant's belief.

Where part of the plaintiff's claim is not due at the commencement of a suit by attachment the affidavit should state the amount due at that time.

The writ of attachment under the act of 1848 is an auxiliary process, and the quashing of it in any case does not affect the progress of the principal proceeding, which has for its object the recovery of a judgment upon the merits.

Where an attachment is obtained on a claim, part of which is not due at the time of suit brought, and the attachment is afterwards quashed, the suit abates as to the amount not due and may proceed for the balance, provided the court have jurisdiction of the amount. (Note 31.)

This case distinguished from the case of Chambers v. Sydnor. (Dallam, 601.)

Appeal from Galveston. The appellant sued the appellees on seven promissory notes, six of them for fifty dollars each and one for three hundred dollars. The fifty-dollar notes were not due when the suit was instituted. The plaintiff prayed for a citation to the defendants to answer his petition and for an attachment against their property. The affidavit was as follows:

“Personally came and appeared before me, the undersigned, John S. Sydnor, who, being duly sworn on oath, doth depose and say that the defendants are justly indebted to him in the sum of six hundred dollars and interest and exchange on New York, and that he has good reason to believe, and does verily believe, that they are about to remove their property beyond this State, and that thereby the plaintiff will probably lose his debt, and that this attachment is not sued out for the purpose of injuring the defendants or either of them.”

On bond being filed an attachment was sued out and the ordinary citation issued requiring the defendants to appear, &c. The attachment was levied on the property and the citations were served on the defendants.

The defendant Totham moved the court “to abate the writ of attachment and to set aside the levy and return and dismiss the cause from the docket, because the affidavit is not made in conformity with the statute regulating the issuance of attachments, for these reasons among others:

“1st. The affiant does not swear positively, but only ‘that he has good reason to believe, and does verily believe, that defendants are about to remove their property beyond this State,’ &c.

2d. The affiant swears to a debt then due, when the record shows it was not due.”

The motion was sustained, and the plaintiff appealed.

R. H. Howard, for appellant.

I. In order to test the sufficiency of the affidavit we must consider what was the reason of its requirement. This can only be that the plaintiff may be subjected to indictment for perjury in case he swears falsely. Such is the view taken of it by this court in Cloud v. Smith, (1 Tex. R., 615.) We have only, then, to inquire if this be an affidavit such as will support an indictment for injury. It is apprehended that there can be no doubt but that this is the case. It was formerly held that perjury would not lie unless the oath were in the positive, and that therefore he who swore as he remembered or believed could not, in respect of such an oath, be convicted of perjury. But the doctrine has long since been overruled. It was pronounced by Lord Chief Justice De Gray “to be a great error into which mankind had fallen.” And in a later case Lord Loughbourrough and all the judges were unanimously of opinion that “belief was to be construed as a substantive term, upon which perjury could as well be maintained as though the party had sworn in the most positive terms.” (1 Leach R., 325; 1 Hawk., 433; 1 Russ., 518.) It is further contended that it is the “belief” of the party which is the criterion of perjury, however absolute the oath may be; for it is said the “falsity of the fact sworn to is not material, for however agreeable to the truth the thing sworn to may happen to prove, yet if it were not known to be so by him who swears to it his offense is as great as if it had been false.” (1 Hawk., 433.) “And if a man swears willfully and deliberately to a matter which is false he will be guilty of perjury, though he may believe it to be true, if he has no probable cause or reasonable ground for such belief.” (6 Binn. R., 249.) It is hence inferred that however absolute the oath, and whether the fact sworn to be true or false, it is the probable cause which the party had for swearing to the fact which will justify or the absence of that probable cause which would condemn; and that the affiant, in the affidavit in question, in swearing that “he had good reasons to believe, and did believe,” &c., has brought himself fully within the rule required. The court is referred to a case directly in point, decided by the Supreme Court of the State of Mississippi, in 6 Howard, p. 254. The utmost to which the rule has been extended requiring affidavits to be made in positive terms is this: that where an affidavit is made touching a fact capable of being positively proven there the affidavit must be in the positive. And although the correctness of such decisions might well be questioned upon the soundest principles of propriety, yet those decisions have never gone so far as to require the affidavit to be in positive terms where the fact about which it is made can only be inferred or proven circumstantially and must of necessity be a matter of belief. The fact concerning which the present affidavit was made (the defendants “being about to remove,” &c.) was one which could only be a matter of belief, inasmuch as it was yet in futuro, and depended for its consummation upon the act of another. If the oath had been in the terms of the statute, as insisted upon by the defendants, it would have been no more binding, either in law or morality, than it now is. It would have secured no better rights to the defendants. And it is submitted that so to insist would be to give such a construction to the statute as would defeat the object of it, which the court has declared, in Thompson, Probate Judge, &c., v. Buckley, (1 Tex. R., 33,) it would not do.

II. The second assignment of error is that the court dismissed the suit upon quashing the attachment. Of this it is not deemed necessary to refer to authorities or introduce argument. The record shows that personal summons was served upon each of the defendants; and although this court in a case already referred to, Cloud v. Smith, decided that the writ of attachment was merely auxiliary to the personal summons, the court below, it is thought, entirely overlooked or disregarded the decision, and dismissed the suit upon motion of one defendant, the other not having answered at all.

F. H. Merriman, for appellees.

I. The affidavit is insufficient because not positive, and because plaintiff only swears to belief, and that he has no good reason to believe, without swearing to any facts to show the court the foundation of that belief.

“An affidavit should be so clear and positive that an indictment for perjury may be maintained on it.” (Peers v. Carter, 4 Litt. R., 268; Gaddis v. Durashy, 1 Green R., 324.) “Where the affidavit does not conform to the statute it will be quashed.” (Marquise v. Ormston, 15 Wend. R., 368.)

“The affidavit to change the venue must be positive that the cause of action arose in another county. If plaintiff swears to his belief it is not sufficient.” (Franklin v. Underhill, 2 Johns. R., 374; Adams v. Wood, 5 Blackf. R.) By a statute of the State of New York a party was permitted to sue out an attachment by making affidavit that his debtor kept out of the county to avoid the payment of his debts, and procuring the affidavit of two witnesses to the same fact. A case was decided under this statute as follows: “Affidavits of a plaintiff that from reports and information he believed that his debtor kept out of a county to avoid paying his debts; and of his witnesses, that they had been informed that he had departed, and, as his creditors said, for the purpose of defrauding them, are not sufficient to authorize the issuance of an attachment.” (Tallman v. Bigelow, 10 Wend. R., 420.) Even in the issuance of the writ of ne exeat the plaintiff is required to make a more positive showing than the plaintiff in this suit has done. “It is also required that the affidavit, on which the application for the writ of ne exeat regno is founded, should show that the defendant intends going abroad. It seems formerly to have been thought that the affidavit was in this respect sufficient if it merely stated a belief of the defendant's intention to quit the kingdom, without going into circumstances upon which that belief was founded; but this rule has been very properly qualified by later decisions, and it is now held that the affidavit to obtain this writ must be positive as to the defendant's intention to go abroad or to his threats or declarations to that effect, or to facts evincing it.” (3 Daniel's Ch. Prac., pp. 1939, 1940.)

“To induce the court to issue a ne exeat it must appear that there is a precise amount of debt positively due--that the defendant is about quitting the county to avoid the payment. It is also necessary that the affidavit must be positive as to the defendant's intention to go abroad, as to his threats or declaration to that effect, or to facts evincing it. In Oldham v. Oldham (7 Ves. R., 210) the court said in relation to this, ‘It is not sufficient to show that another person said so.’ 'DDD' (Rhodes v. Cousins, 6 Rand. R., 188.)

“To entitle a party to a writ of ne exeat his debt or demand must be satisfactorily ascertained; a mere...