
    Sydnor v. Totham and another.
    It is not sufficient in tiie affidavit for an attachment under the act of 1848 (ITart. Dig., art. 2/1) to swear that." tiie nfiiant has good reason to lielievo, and docs verily believe, that tiie defendant is about to remove,” ¿o. The affidavit must bo positive as to the fact and not meict.y state the affiant’s belief.
    where part of the plaintitf’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 1818 is an auxiliary process, and the quashing of it in any case docs not affect tiie progress of tiie principal proceeding, wi.ioli has f.»r its object, the recovery of a judgment upon tiie 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 tiie amount not due and nuty proceed for tiie balance, provided the court have jurisdiction of tiie amount. (Note 81.J
    This ease distinguished from the ease of Chambers a. Sydnor. (Dallam, 001.)
    Appeal from Galveston. The appellant sued the appellees on seven promissory notes, six of them for fifty” dollars each anti one for three hundred dollars. The liffy-rlollar notes were not cine when the suit was instituted. The plaintiil' prayed for a citation to the defendants (o answer his petition and for an attachment against their property. Tiie affidavit was as follows : ■
    “ Personally came anti appeared before me, the undersigned, John S. Syd-nor, who, being (inly sworn on oath, doth depose and say that tiie 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 attache ment is not sued out for the purpose of injuring tiie defendants or either of them.”
    On bond being Piled an attachment was sued out and the ordinary citation issued requiring the defendants to appear, &e. The attachment was levied on the property and (he citations were served on the defendants.
    The defendant Totiiam moved the court “to abate the. writ of attachment and to set aside the. levy and l’etnrn and dismiss tiie cause from the docket, because the affidavit is not made in conformity with tiie statute regulating the. issuance, of at taohments, for these reasons among others:
    “ 1st. The affiant does not swear positively, but only ‘that lie has good reason to believe, and does verily believe, that defendants are about to remove their property beyond this Stare,’ &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.
    
      11. II. JToioarcl, for appellant-.
    I. In order to test tiie sufficiency of the affidavit we must consider wlmt was the reason of its requirement. This can only bo that tiie plaintiff may be subjected to indictment for perjury in case lie swears falsely. Such is tiie view taken of it by this court in Cloud v. Smith, (1 Tex. R., CIS.) AVe 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 hold that perjury would not lie unless the oath were in the positive, and that therefore he who swore as lie remembered or believed could not, in respect of such an oath, be convicted of perjury. But tiie doctrine has long since been overruled. It was pronounced by Lord Chief Justice De Gray “ to be a groat, error into which mankind had fallen.” And in a later case Lord Loughbourrough and all the judges wore 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., 018.) 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 tiling sworn to may happen to prove, yet i£ it were not known to be so by him wiio 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 mqy believe it to be true, if lie lias no probable cause or reasonable ground for such belief.” (6 Binn. R., 241).) It is lienee inferred that however absolute the oatli, and whether the fact sworn lo 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 liad good reasons to believe, and did believe,” <fcc., lias brought himself fully within tlie rule required. The court is' referred to a case directly in point, decided by the Supreme Court of the State of Mississippi, in G 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 oatli had been in the terms of the statute, as insisted upon by the defendants, it would have been no more binding, cither 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 lie 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 eacli 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 tiie personal summons, the court below, it is thought, entirely overlooked or disregarded the decision, and dismissed the suit upon motion o one defendant, the other not having answered at all.
    
      F. II Merriman, for appellees.
    I. The affidavit is insufficient because not positive, and because plaintiff only swears to belief, and that lie 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 Hitt. R., 268; Gaddis v. Du-rasiiy, 1 Green R., 32-1.) “Where the affidavit does not conform to the statute it will he quashed.” (Marquise v. Ormston, 15 Wend. R., 3G8.)
    “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 tills statute as follows : “ Affidavits of a plaintiff that from reports and information lie believed tiiat his debtor kept out of a county to avoid paying his debts; and of his witnesses, that they liad been informed that lió liad 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 hold 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. 1039, 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 tiie 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.’ ” (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 declaration of belief of the existence and amount of his claim is not sufficient; there must he also a positive affidavit of a threat or purpose of the party, against whom tlie writ is prayed, to go ‘ abroad. ’ ” (Mattocks v. Tremain, 3 Johns. Ch. R., 75.)
    The old authors say that a party cannot be indicted for perjury for swearing to his belief about any fact; that to constitute perjury “the oath must be corrupt, willful, positive! and absolute.” (1 Hawkins P. C., 323 ; 3 Institutes, 1GG ; 4 Black. Comm., 137.)
    According to tiie above authorities the plaintiff could not be indicted for perjury upon tlie affidavit, be it ever so false, as he lias simply sworn to his belief and not to anything positive or absolute. Supposing a party could be convicted of perjury in any case for swearing to Ills belief in tiie existence of a certain fact upon the affidavit in this case, it would be impossible, to make tiie proof that tiie plaintiff did not believe “that the defendants were about to remove their property beyond this State.” Because the plaintiff has not stated in tlie affidavit a single fact or circumstance which led him to such belief, or that furnished him a good reason for such belief, to which the prosecutor could call rebutting testimony.
    As the affidavit stands upon tlie record is it evidence for any purpose of the fact “that the defendants were about to remove their property beyond the State?” Tlie statute requires that tlie affidavit shall be positive of that fact. Now, suppose the plaintiff had been called upon in a court of justice as a witness and tiie question was put to him, “State whether or not the defendants, Totman and Moore, were about to remove their property beyond this State on tlie 13 th day of October, 1S49 ? ” (which is the, date of tiie affidavit.) Suppose the reply’to be given in the language of tlie affidavit: “ I have good reason to believe and do verily believe that they are,” without stating what the “good reason ” was, or any fact or circumstances which led to tiie belief. Could such a statement he dignified with tlie name of evidence? Would it he proof of any fact? Could tlie'jury, upon such evidence, find the fact “that the defendants, Totman and Moore, or either of them were about to remove their property beyond this State ? ”
    II. The plaintiff states in his affidavit “ that tiie defendants are justly indebted to him in the sum of six hundred dollars.” In the petition the plaintiff sets forth that only three hundred dollars were due him from the defendants oil tlie day when the affidavit was sworn to, tiie rest being notes to fall due in future. The record, and that portion of it, too, furnished by the plaintiff, contradicts that portion of the affidavit stating the amount of indebtedness which the statute requires to be certain and positive. “ Where the party swears that the defendant is indebted to him lie swears in a legal point of view and in legal parlance to a present debt that is due and not to a future, one.” (Tobias v. Wood, 1 "McMull. R., 103.) “The affidavit should show what part of the debt sued is not due, or when it should fail due.” (Stowe v. Sewell, 3 Stew. & Port. R., G7.) “The plaintiff must show that the defendant is indebted to him in the sdm of money past due, or else in a sum to bo paid at a future day.” (Benson v. Campbell, G'Port. R., 455.)
    III. Prom the lirst decisions of the courts of the Republic down to the present time the attachment laws have been construed strictly by the big-best courts of the land. (Roquet v. Nixon, Dallam, 3S8; Gregg ». York, Id., 528; Sydnor v. Chambers, Id., 601.)
    The last case decides the attachment writ to he the leading process, and if quashed for defective affidavit, must he dismissed. (Wooster v. McGee, 1 Tex. R., 17; Cloud v. Smith, Id., 611; Chevallier v. Williams, 2 Id., 239.)
    “An attachment should state everything required by tlie statute to justify the proceedings.” (Plumpton v. Cook, 2 Harsh. R., 450; Barnett v. Darn-ville, 3 Call R., 35S; Slate Bank v. Hinton, 1 Dev. R., 397; Skinner «. Moore, 2 Dev. & Batt. It., 138; 3 Bibb R., 252; McCulloch v. Poster, 4 Yerg., 162; Slmgart v. Orr, 5 Id., 192; Lucky». Miller, S Id., 90; Conrad v. McGee, 9 Id.) It is believed by the counsel for the defendant, Totman, that the above-cited cases, bearing- upon the points raised by the defendant, are sufficient to cause the Supreme Court to confirm the judgment of the court below in quashing the attachment and dismissing the ease. All of which is respectfully submitted.
   Lipscomb, J.

It has been often declared that the process by attachment is liable to produce so much oppression and injury that a rigid conformity with the law authorizing its issuance will be exacted. And no portion of the statute requires 1 his rule to be more strictly adhered to than in the affidavit to be made by the plaintiff, as one of the conditions on which the attachment is allowed. If the belief of the, plaintiff, without facts on which such belief can be reasonably based, should be held a sufficient compliance with the requisition of the statute that “the plaintiff shall make an affidavit in writing that he, the defendant, is about to remove his property beyond this State,"” one of the best assurances against, the abuse of the process would be rendered inoperative and entirely useless, because the legal responsibility of the affiant to a prosecution for perjury would be in most cases destroyed. The language of the statute admits no equivocation or evasion. A distinct fact must be sworn to by the person who seeks the use of the, process of attachment. - An evasive affidavit of the party as to liis having good reasous for his belief, which reasons are confined to his own segret keeping, is not a compliance with the statute. (See cases decided in this court.) The question is not an open one in this court. This objection was well taken, and the court vezy properly sustained it and quashed the attachment.

The affidavit seems to have been defective on another ground: it ought to have shown the amount due at the time of the filing the petition. It seems very clear that the attachment was properly quashed, and all of its incidents fell with it, such as a discharge of the property’attached at the cost of the plaintiff.

But, it does not follow under our statute that the suit would be dismissed. An attachment is not always an original proceeding. It is sometimes used as an auxiliary to the ordinary process, and issues colemporancously with it; and in such cases it not unfrbquently happens that the attachment is quashed and the suit, commenced by the ordinary process, proceeds to a judgment. (Cloud v. Smith, 1 Tex. R., 611; Chevallier v. Williams, 2 Id., 239.) In this ease the ordinary process was prayed, and it issued, and was served on the parties at the same time the attachment was issued. The attachment, we have seen, was imperfectly sued out on a defective affidavit; but if the plaintiff has set out a good cause of action hvhis petition, he can proceed to have his rights adjudicated in the ordinary way, because such right is not at all dependent on the attachment. If, however, the debt sued for liad not been due, nor a sufficient portion of it due at the time of the commencement of the suit to authorize the ordinary suit, the whole action would fall with the attachment, because it is by attachment alone that a debt not due can be sued on. (Hart. Dig., art. 37.)

Note. — The precise question in this ease was decided-by the Supreme Court of Mississippi in a ease cited-by counsel for the appellant, in accordance with the 'opinion I entertain. (6 How. Miss. R., 254.) W.

Note 31.—Culbertson v. Cabeen, 29 T., 247; Cox v. Reinhardt, 41 T., 591.

In this case the petition alleges that three hundred dollars were due to the plain till' at the time of the commencement of the suit. The suit can be sustained for this sum, But lie cannot- recover the debt not due, because his right to sue for that sum depended on the attachment and had to share its fate.

The case of Chambers v. Sydnor was decided on a different statute now not in force. The attachment in that case was a single remedy, and not auxiliary to tile ordinary action by petition and summons. The suit was by attachment only, and the attachment being bad, there was no suit left in court.

The court below erred in dismissing the suit, but did not err in quashing the attachment. The judgment must be reversed and remanded to the court below, with instructions to try the suit as an ordinary one where no attachment had been prayed for nor issued. And the judgment quashihg the attachment is affirmed.

Judgment reversed.

Wheeleb, J.

It is in the nature of things impossible that a man can know positively any fact not capable of being ascertained by the evidence of the senses. However positively lie may state it, his statement must rest not on his knowledge but upon his belief. Where, therefore, the fact stated, as in the present case, is not susceptible of certain knowledge or positive proof, whatever the form of the statement, however positive it may be, it can amount to no more than a statement of the belief of the party. The present affidayit is therefore in my opinion a substantial compliance with the statute, the fact stated being one which is not susceptible of direct anti positive proof. The only principle upon which it can be held insufficient is that the rules of construction applicable to the attachment act require not only a substantial but also a literal compliance with the statute. That is going farther than this court has heretofore gone in the application of strict rules of construction to the statute.. It is requiring greater strictness than is required even in criminal proceedings. In an indictment upon a penal statute it is not necessary to pursue the very letter of the statute, and so this court has expressly decided. In respect to those facts which are susceptible of positive proof, or which rest peculiarly within the knowledge of the affiant, as the fact and amount of indebtedness, the statement may and therefore must be direct and positive.

I consider the present, however, a question of but little practical importance beyond its'effect upon the present.case; for any man of ordinary intelligence, when told tiiat the law requires that he shall state positively that his debtor, against whom lie is driven to an attachment to save a just debt, is about to remove beyond the jurisdiction of the court, if he believes the fact to be so, will not hesitate to make the statement, knowing tiiat it must be taken to be nothing more than a statement according to the best of his knowledge and. belief.  