
    Barker vs. Thorn.
    An affidavit in attachment, setting forth the indebtedness of the defendant at $8000, “ as near as can be specified by this deponent,” held sufficient.
    Error to Calhoun Circuit.
   Opinion by

Graves J.

In this case the question is on the sufficiency of an affidavit upon which an attachment issued under Chapter 140 of the Complied Laws. The Court below dismissed the writ upon the ground that the affidavit was fatally defective, and the plaintiff assigned this as error.

The statute provides that the plaintiff, or some one in his behalf, shall make and annex to the writ an affidavit stating that “ the defendant is indebted to the plaintiff, and specifying the amount of said indebtedness, as near as may be, over and above all legal set offs,’’ and that “ no writ shall be issued unless the amount stated in such affidavit shall exceed $100.

I entertain the opinion that, for a party to avail himself of this remedy, it must be shown affirmatively and positively on the face, of the affidavit that a sum certain, above $100, is due the plaintiff over and above all legal set offs, and that the sense and meaning of the statute will not allow the employment of the words of the provision, or words of equivalent effect. That an affidavit drawn with some qualification which leaves the Court uninformed by the oath of the affiant as to his ability to state the real amount, would be defective in a jurisdictional part.

The affiant in this case states that the defendant is indebted to the plaintiff in the sum of $8,000, 'l as near as can be specified by this deponent,”- and I think the qualification leaves the affidavit essentially defective.

My brethren, however, think that such a construction would conflict with the practice of the Courts and the uniform opinion of the bar — that the affidavit substantially meets the requirements of the statute and proves with l’easonable certainty that more than $100 was due.  