#### Henry Newman *vs.*George Hexter et al., firm of George Hexter & Co. The Meridan Silver Plate Co. *vs.*Thomas McFadden, Jr.

Law. No. 19,465.

Law. No. 19,775.

Decided May 26, 1879.

The supporting affidavit of the witness: for an attachment whicii states that a sum is justly due, and owing the plaintiff, as affiant verily believes,” is not sufficient under sec. 782, R. S. D. C. The witness must testify to the truth of the grounds upon which the plaintiff bases his affidavit.

STATEMENT OP THE CASE.

In these causes declarations were filed containing the money counts with accompanying bills of particulars, and verified by affidavits under the 73d rule of court. At the commencement of the suits, the respective agents of the plaintiff" therein made affidavits for the purpose of causing to be issued writs of attachment according to section 782, R. S. D. C., and rule 16 of the court, stating the grounds upon which the actions were based, and setting forth that plaintiff had a just right to recover against the defendants what they claimed iu the declarations, and also stating that the defendants were non-residents of the District of Columbia. These affidavits were supported by that of a witness in each case, in the form and language following :

“Henry Hinke, witness for the plaintiff, makes oath that the grounds upon which the plaintiff bases his action and aforesaid affidavit are those stated in the declaration, and that the plaintiff’ has a just right to recover against the defendant for the cause of action therein stated ; that the sum of $402.60 is justly due and owing to the plaintiff from the defendant by reason of the premises, as affiant verily believes, and that the said defendant is a non-resident of the District of Columbia.”

Attachments were issued under which the marshal at*89tached certain property of the defendant in one case, and garnished certain creditors of the defendant in the other.

The section of the Revised Statutes D. C., already referred to, provides :

“That the plaintiff, his agent or attorney, shall file, &c., •an affidavit, supported by the testimony of one or more witnesses, showing the grounds upon which he bases his affi-davits, and also setting forth that plaintiff has a just right to recover against defendant what he claims in the declaration.”

A motion was made to quash the writs of attachment in ■each case for the following reasons :

First. Because the same was improvidently issued.

Second. Because the-affidavits on which said attachment, was based are informal, irregular and insufficient in law.

Third. Because the undertaking filed in this suit, on which said attachment was issued is informal, insufficient and illegal.

Fourth. That said affiant, Henry Hinke, does not set forth in his alleged affidavits the grounds upon which he bases his said affidavit, as required by the act of Congress in such case made and provided.

Fifth. That affiant, Henry Hinke, does not set forth of his own personal knowledge, that the said defendant is indebted to said alleged plaintiff in the manner as alleged by said plaintiff.

Sixth. That the said witness, Henry Hinke, in his said affidavit does not set forth of his own knowledge, that the amount claimed by said plaintiff, in its said declaration is correct, due and payable by said defendant to said plaintiff.

Seventh. That said defendant, before the institution of said action, was and has ever since ¡been a resident of the District of Columbia.

Eighth. That said defendant at the time of the issuing and levying of said attachment, to wit, on the 6th day of July, A. D. 1878, was a resident of the District of Columbia.

Ninth. That said defendant, at the time of the issuing and *90service of the writ of summons, and copy of the declaration in said action, to wit, on the 6th day of July, A. *D.*1878r was a resident of the District of Columbia.

In the case in which said Hinke made the supporting affidavit, the writ of summons and copy declaration was served on the defendant in this jurisdiction, as shown by the return of the marshal. On hearing said motion, the justice holding the court below quashed the attachments in both cases, and the plaintiffs took an appeal to the General Term.

N. H. Miller for plaintiff':

The first ground, that the writ was ‘£ improvidently ”' issued, and the second, that the affidavits upon which the attachments were based are “ informal,” may be considered together.

The plaintiff'insists that under sec. 782 of the Rev. Stats. D. C., the clerk is the special depository of the power to issue writs of££ attachment ” and££ garnishment; ” that he has a discretion, and that it rests with him to determine whether such a preliminary compliance w-ith the terms of the act has been had as will justify the issuance of the w7rits ; that the-writs are issued by him, “ *without any authority or warrant from any judge or*justice,” and that having once issued, the court is confined to a determination of the issue provided for in sec. 783 ; that is, “ whether the facts set forth in the-plaintiff’s affidavit are true, and whether there was just ground for issuing the writ of attachment ; ” and it may then quash the writ,££ if the facts do not sustain the affidavit.”'

The power of the court is limited to a determination of this question—a question of fact, and it does not and cannot sit as a court of apipeal to review the act of the clerk. The-clerk declares there is a *prima facie*case on what is presented to him, and the court upon hearing from the defendant, may either confirm this by refusing the motion to quash, or do the opposite by granting it; in other words, the court cannot go behind the writ for any other purpose than to-scan the plaintiff’s affidavit. . If the clerk has acted improp*91erly or oppressively in issuing the writ, or fallen into errors of judgment, he is responsible, as other ministerial officers are, intrusted with such functions.

But if the court should hold that on the motion to quash, it can examine fully into the matter, it will be seen that sufficient foundation existed for the writs.

It is submitted that the rule is, that when a creditor fairly brings himself by his application within the spirit and intent of the statute authorizing the remedy, he is to be protected in the enjoyment of its advantages.

The affidavit of the agent complies with all the requirements of the statute, which are (1), that it shall “show” the grounds upon which the action is based; (2) that the plaintiff’has a just right to recover ; and (3) that the defendant is a non-resident of the District, and the affidavit in support of it, although containing a statement in its outset which is mere surplusage, avers “ that the plaintiff has a Just right to recover against the defendants the sum of $879.70, as affiant verily believes, the money claimed in the declaration for the cause therein stated ; ” and he further states that “ the defendants are non-residents of the District of Columbia.” The bill of particulars is referred to in and raccompanies the declaration, consequently the affidavit of the witness “ shows ” the grounds on which the action is based ; that the plaintiff has a just right to recover, and that the defendants are non-residents, which seems to be a full compliance with the act as to necessary allegation, and all that the most hypercritical stickler for strictness could require. The affidavit of the witness that he “ verily believes” the facts is sufficient. Drake on Attachment (2d .paragraph of sec. 103), lays down the rule as follows : “And -so, under a statute requiring an affidavit ‘showing’ the existence of a certain fact, it was held that an affidavit of such fact as the affiant ‘ verily believed ’ was good ; which was in effect to decide that the party’s belief was a sufficient -* showing ’ to fill the terms of the statute.”

¥m. F. Mattingly for defendants George Hexter et al. The affidavit on which the attachment was based is radi*92cally defective. The object of the law was, that, before. & plaintiff should avail himself of this extraordinary remedy, he should present a case, proven by the testimony of either his own affidavit or that of bis agent or attorney, setting forth the grounds of their knowledge of the facts to which they swear ; and this affidavit must be supported by the-testimony of a witness having also knowledge of the facts- and showing the source of his knowledge on the face of his affidavit. In other words, the affidavit of the supporting, witness must be such as on its face manifests that it would be competent testimony to prove the facts on a trial.

The witness in this case simply swears to what any stranger could on an examination of the papers; and it is apparent, from his affidavit, that he had no knowledge of the facts off the case.

William J. Miller for defendant McFadden :

The affidavits for the attachment do not set forth the. grounds upon which plaintiff or his witnesses base said affidavits, nor do they set. forth, clearly and distinctly, the cause-of action, whereas there are several causes of action alleged-in said declaration.

The affidavit of Ilenry Hinke, witness of plaintiff, as to-grounds of action and amount, is based upon belief, and. does not show the grounds upon which he bases that belief-Á statute authorizing proceedings by attachment must be strictly construed. May *vs.*Baker, 15 Ill., 89; Poole *vs.*Webster, 3 Mitc. (Ky.), 278.

The affidavit for a writ of attachment must clearly.and explicitly state all the requirements of the statute. It is not sufficient for such allegations to be made on information and belief. Dyer *vs.*Flint, 21 Ill., 80; Archer et al. vs. Claffin, 81 Ill., 215.

Where an affidavit to procure , an attachment omits tosíate the grounds of the cause of action, the omission affects, the jurisdiction, and cannot be remedied by amendment. Zengal *vs.*Benvist, 33 How. (N. Y.) Prac.,129; 7 Robt., 199.

*93Mr. Justice Cox

delivered the opinion of the court :

; Several questions were made in these causes. For example, in one case process was actually served on the defendant, who was, at least temporarily,'living in the District and engaged in selling the very merchadise upon which the attachment was issued ; and it was a serious question whether the attachment law contemplates such a case, the object of the writ being accomplished in its service upon the defendant personally. Another question was whether the ruling of a court upon a motion to quash an attachment was subject to review in the* court in General Term. The judges had individual impressions upon these questions, but it was not considered necessary to settle them because the court was unanimous in their decision as to the sufficiency of the affidavits upon which these attachments were founded.

In each case the affidavit made by the plaintiff was fortified by an affidavit of a. single witness, and the main question relates to the sufficiency of the affidavit by the witness.

It seems to us that the act of Congress on this subject has been very generally misread. That act provides “ that the plaintiff, his agent or attorney, shall file, &c., an affidavit supported by the testimony of one or more witnesses, showing the grounds upon which he bases his affidavits, and also setting forth that the plaintiff has a just right to recover against defendant what he claims in the declaration.” This has generally been read as applying to the testimony of the witness, as well as to the affidavit of the plaintiff, and the practice has been to prepare the affidavits of the witnesses in the exact terms of the plaintiff’s affidavit.

Bnt this is not what the law intends. It intends that-the plaintiff or his agent shall file an affidavit showing or setting forth the grounds upon which he bases his affidavits, which affidavit is to be süpported by the testimony of one or more witnesses. Now it is not intended that the witnesses shall simply show the grounds on which the plaintiff bases his affidavit. Anybody can do that from a mere inspection of the plaintiff’s affidavit1 and without any knowledge of. the *94facts. But that would not be testimony. It is intended that the witness shall testify to the truth of the grounds upon which the plaintiff bases his affidavit. 1

. Nothing could illustrate the laxity, of the practice more forcibly than the present cases. Here the plaintiff iu each case files a declaration, one of which contains counts for goods sold and delivered, for work done and materials furnished, for money lent, for money paid by plaintiff for defendant, for money received by defendant for use of plaintiff, and for money found due on aacount stated. The plaintiff’s affidavit states simply as a consideration, goods, wares and merchandise sold and delivered. The witness who testifies on behalf of the plain tiff, states that the grounds upon which the plaintiff bases his action in the aforesaid affidavit, are those stated in the declaration. The declaration states half a dozen different grounds, and the affidavit states only one ; so the affidavit is false upon the very face of the paper.

The same thing occurs in the other case, with the exception that the grounds referred to by the affidavit are those referred to by the plaintiff in his affidavit and declaration. But that is obnoxious to the same criticism, because in this case the plaintiff’s declaration sets forth some half dozen grounds of recovery, and his affidavit states only one. It is apparent, therefore, that the affidavit by the witness as to the grounds upon which the plaintiff bases his affidavit is quite insufficient; it is such as anybody could make from the inspection of the plaintiff’s declaration or affidavit. The other thing that the plaintiff is bound in his affidavit to set forth is the fact that he has a just right to recover what he claims in the declaration. This also must be supported by the testimony of witnesses.

Now, in each of these cases the witness testifies that the sum is justly owing the defendant *as affiant verily believes'.*The question is whether that is sufficient testimony to support the declaration. It is evident that the witness might make the affidavit in real ignorance of the facts of the case. He might make it from information derived from the plain* *95tiff’ himself er he might make it from the inspection of the affidavit of the plaintiff alone and his belief in his veracity, but that would not be testimony.

There was a case reported in the second of W endell, in which an affidavit as to non-residence, *as the affiant*believes, was held sufficient, but a foot note to the report refers to some four or five other cases in which that was thoroughly overruled. One of these cases is reported in the 18th volume of Wendell’s Reports, page 611. The court there show that although some laxity prevailed upon the subject formerly in analogous cases of injunction, yet that lately the courts have been more strict in deciding what would be competent legal testimony to justify them in issuing either attachments or injunctions. In this case there was an affidavit of non-residence *according to the information and belief of the*witness, but the court was of opinion that the affidavit is insufficient. It says :

“ For aught we know, the witness may have been informed by the party who made the application. * * * In short, any kind of information that we can imagine would satisfy such an affidavit as was presented in this case. To receive it would be a complete evasion of the statute.”

It is upon these grounds that the court on a former hearing of this case concurred in the opinion that the affidavit upon which the motion was based was insufficient, and that the court below was right in quashing the attachment upon, motion ; and upon a review of the case, in the light of all the authorities cited on the part of the plaintiff’, we see no ground for reconsidering that action or allowing a rehearing in the case. The motion, therefore, must be overruled.