
    GEORGE W. JONES, plaintiff in error, vs. DANIEL WEBSTER, defendant in error,
    
    
      ~i y Error to Grant county. ).
    An affidavit for an attachment which states the amount of the plaintiff’s demand to be “over and above the sum of fifty dollars,” doesnotsuffioient-Jy state the amount, to authorize the issuing of the writ.
    Jones sued out a writ of attachment against Webster in the Grant District Court. The affidavit was made by F. J. Dunn, attorney for the plaintiff, and stated: “The he, affiant, is the attorney of George W, Jones, and affiant further says, that he verily believes that Daniel Webster is indebted to said George W. Jones in a sum of money over and above the sum of fifty dollars, lawful money, and that said indebtedness arises out of, and is founded upon contraclin writing, styled in said contract,hi memorandum of agreement:’ Affiant further says that the said Daniel Webster is not a resident of Wisconsin Territory.” Satisfaction was indorsed upon the affidavit of the District Judge.
    At the March term, 1843, the defendant by his counsel, moved the court to quash the writ and dismiss the cause on the ground of the insufficiency of the affidavit: The court sustained the motion and dismissed the suit; to reverse which decision, Jones has prosecuted this writ of error.
    Duka’, for pl’ff in error:
    The court below quashed the writ and dismissed the case,because the amount and nature of the plaintiff’s demand were not sufficiently stated in the affidavit.
    The amount of the indebtedness cannot always be stated without compromising the affiint on a question of veracity. Where the damages are unliquidated, and cannot be liquidated except by the verdict of a jury, the plaintiff cannot swear to any precise sum, as the true amount of his just demand. In this case, the sum of fifty dollars and over, is stated to be due, which brings the case within the jurisdiction of the court, and entitles the plaintiff to the writ.
    The nature of the indebtedness is stated more particularly than the statute requires. It is stated to be founded on a written contract, styled % memoiandum of agreement.’ This is all that is necessary to he stated.
    Coluins, for def’t in error:
    One of the principal reasons for quashing the writ is, that the amount of the'plaintiff’s demand is not -sufficiently stated in the affidavit; and it is said, that in sustaining this ground, the District Court erred. The statute is as positive in this requirement as any other, to authorize the writ; and if the statute must be strictly pursued, os this Court has repeatedly said it must, this affidavit cannot be sustained. A reason for requiring the amount to be stated, is that the officer may not take more property by the writ, than will be sufficient to secure the plaintiff’s demand. If the demand is so uncertain or doubtful that it cannot bo stated at all, the plaintiff is not entitled to the writ. The statute was not intended for the recovery in this way, of damages that cannot be liquidated.
    The affidavit as to the nature of the demand, is defective.— True, it states that it arises upon a contract in writing, but what sort of a contract it is, is left to conjecture. It may be a contract void at law, and upon which a recovery cannot be had. The nature of the contract should be so far slated, that (he court can see that it may be the legal foundation of the demand.
    The whole ground stated, except the non-rcsidence of the defendant, is stated as a mere matter of belief. This is not sufficient under lire statute, unless the facts and circumstances upon which the belief is founded, are also stated, and these facts and eircumstances must be such as to warrant the belief
    Burnett,in continuation:
    The statute requires that the facts and circumstances necessary to entitle the party to a writ of attachment must be proven to the satisfaction of the judge or commissioner. It is not one fact or another that must be so proven, but every substantive matter that the law makes necessary to entitle the party to the writ, must he made to appear affirmatively by proof, before the writ issues. — ■ The first fact that must be thus made to appear is, that the defendant is indebted to the plaintiff, then that the indebtedness atises out of, is founded upon, or sounding in contract, or upon a judgment or decree of a court, and then the nature and amount of the plaintiff’s demand. In this case, there is no sum stated as the amount of the plaintiff’s demand, and it is useless (o argue that point; but the fact of any indebtedness at all, is only stated as a.maiter of belief of the affiant, and neither fact nor circumstance is given as the foundation of the belief This is not sufficient. This court said, in the case of Morrison vs, Ream, decided at the last term, that “the facts necessary to entitle a party to the writ of attachment, must be proven to the satisfaction of judge or commissioner. Proof, that is legal evidence from the party or a witness, is required. Mere belief is not sufficient; nothing short of facts and circumstances within the knowledge of the affi-ant, will do.” Again: “The officer must be satisfied, and he must be so satisfied from proof of facts and circumstances, not from the belief of any one.” And in relation to the charge of fraud, the Court in the same case says: “The officer should have at least such strong presumptive proof, as, being uncontradicted and unexplained, would induce him to convict the defendant of the charge if he were on trial before a petit jury.” Apply the principles of that opinion to this case, and the affidavit amounts to nothing. The same principle which the Court applied to the charge of fraud, would require that the proof of the indebtedness, its nature and amount, should be of such a strong and presumptive character, that uncontradicted or unexplained, would be sufficient to induce the officer to find and fix a verdict in favor of the plaintiff, if the case were on trial before a petit jury.
    The statute requires the affidavit to be made by the plaintiff or some credible witness. A witness in the legal sense, is one who sees and knows the things of which he testifies. The witness meant by the statute should have personal knowledge of the facts and circumstances which he states, and it should appear in the affidavit in some way, that he is such a witness. The vague belief of a third person, who knows nothing of the facts and circumstances, is not as good as the belief of the plaintiff who does know, and this court has said that the belief of no one will do.
    The nature of the indebtedness must be stated. It is not sufficient that it is upon a contract in writing. Take the converse, and suppose that it is stated to be upon a contract notin writing, would it be sufficient? Certainly not. There is almost as great a variety of contracts, as to their nature, in writing as by parol.— If the legislature had intended such a statement to be sufficient, the statute would have required the affidavit simply to show whether the contract was in writing or not.
    
      Draw,in reply;
    Tho slating the demand to be upon contract, and that it was an instrument of writing styled a memorandum of agreement, is sufficient as to (he nature of the demand, and it was not necessary to set out tho terms and conditions of the agreement.' .The statute does not require such' particularity.
    It is important to inquire, what are tho facts and circumstances' necessary to bo stated? There is a marked difference between fact and circumstance; between positive knowledge and mere.belief. Where a matter of fact is positively known and positively staled, there is no belief upon the subject, and neither belief of the reason for it, is necessary to be stated.
   Opinion of the Court, by

Judge Ikvist:

This case came up on error to the District Court of Grant county, and is a proceeding in attachment.

The writ of attachment was sued out ón the affidavit of Francis J. Dunn in these words: “ That he, affiant is the attorney of George W. Jones, and affiant further says,- that he verily believes that Daniel Webster is indebted to said George W. Jones in a sum of money overand above the sum of fifty dollars lawful money, and that said indebtedness arises out of and is founded upon contract in writing, styled in said contract,a memorandum of agreement; affimt further says that the said Daniel Webster is not a resident of Wisconsin Territory.’'’ On this affidavit, the Judge of the district indorsed his satisfaction of the truth of the facts therein stated.

At the March term of said court for 1843, the defendant, by his counsel, moved the court to quash the writ and dismiss the cause for the following reasons, viz: “ 1. Because of insufficiency of the affidavit: 1. In that said affidavit was not made by plaintiff’, av a credible witness, but by the attorney of said plaintiff, who is not a witness in contemplation of law: 2. In that the amount of plaintiff’s demand is not set forth: And 3. In that tho circumstances upon which the belief of the facts set forth is founded, are not stated.

2. Because it appears by the amended return of the sheriff, that in serving tho writ in said cause, he did not enter upon the premises attached, in order to attach and appraise them:” Which motion was sustained by the District Court, and to which decision ■of the court, the plaintiff by his attorney, excepted; and for error, assigns (lio following causes, viz: “ 1. Tho court erred in sustaining the second and third reasons of tho defendant in his motion to quash the writ and dismiss the proceedings herein. 2. Tho court erred in quashing tho writ and dismissing the procoeeings heroin.”

Tho decision of tho court below upon tho motion was goneraly and so far as 'ho record shows, whilst in the assignment of errors, it is noticed as having been given upon tho second and thiid reason assigned for quashing the writ, which include ihis portion of tho affidavit. “And affiant further says that ho verily believes that Daniel Webster is indebted to said George W. Jones in a surA of money over and above tbc sum of fifty dollars, liwful money, and that said indebtedness arises out of and is founded upon contract in writing, styled in the said contract^ a memorandum of agreement.”

The law provides that “ to authorize tho issuing an attachment in any case, the defendant must bo indebted to tito plaintiff in a bnuse of action arising out of, founded upon, or sounding in contract, or upon a judgment or decree of some court of law or chancery;” (2d section of tho act of 1812;) and by the 3d section it further provides, that “ the facts necessary to entitle a parly to a writ of attachment, shall bo proven to tho satisfaction of a District Judge or of a Supremo Court Commissioner of the proper county, by tho affidavit of tho plaintiff or some credible witness-, stating therein the nature and amount, of the plaintiff’s demand, and the circumstances upon which the belief of such facts is founded, and sn'cli officer shall indorse tho fact of his satisfaction on the affidavit, which shall he filed with the clerk of the court before tho wtit shall issue.”

The first question presented in this case, as contained in the motion below* which was sustained in general terms, is regarded untenable. Upon the second and third questions, the inquiry relates to tho nature and amountof the demand, and as this case was submitted toa court-consisting of two of the three members,and as those differ as to the sufficiency of the statement in relation to the nature of the demand, the statute will ho considered as un-construod therein', hut in relation to tho amount, there is no such division of opinion. The law requires that the nature and amount of the demand shall be stated. Is lite amount stated herein? — ■ The language is this, as used by the affiant: “ That he verily be-lleves flint Daniel Webster is indebted to said George W. Jones in a sum of money over and above the sum of fifty dollars.” From an examination of the language used, it will bo readily perceived that no sum is slated at all. It is true, that the affiiot says ho verily believes that the defendant is indebted in a sum of money over and above fifty dollars; but at what point, in the vast rango of numbers, the mind is left wholly to the resources of the imagination. It would be unwise and unsafe, and wholly at war with the practice properly established in the harsh remedy of attachment, <o regard such a statement of the amount of the demand as sufficient. The District Court therefore did right in sustaining the motion to quash, particularly when it is remembered, (hat this uncertain sunt is slated under the mere belief of the affiant.— The statement of non-residence is positive and unequivocal by a credible witness, and not liable to the objection urged against it.

Dusk, for pit1!!' in error.

Collins and Buknett, for def’t in error.

Believing, as this court does, that the statement of the amount was wholly insufficient, we affirm the judgment of the Distriqt Court with costs.  