#### Quarles, impleaded with Spring, Plaintiff in Error, *vs.*Robinson, Defendant in Error.

It is irregular to entitle an affidavit in an attachment suit. There is no suit depending until the attachment issues. The affidavit is antecedent to the suit, and not the suit itself.

Proeoss should bear teste, when issued out of term, of the next antecedent term of the Court, from which it issues.

An affidavit *for*the issue of an attaehnient, must distinctly and plainly show a debt due; and must not, in order tobe maintained, show it inforentially.

Though *it*may, in its preliminary part, state a debt to exist, yét if in a subsequent part it states the debt to be *“pursuant to a judgment;’*fee., the preliminary statement of the debt, by such statement, is qualified and *rendered*uncertain. It should state that the judgment was unsatisfied and in force.

Special proceedings under a statute, in order to be effective, should strictly pursue to the letter, as well as the spirit of the Statute, or they cannot be sustained.

Error *to*the late U. S. District Court for the County of Racine.

This was a proceeding under an attachment, by the *30• defendant in error against tfie plaintiff in error, under the Statute of the Territorial Legislature.

The affidavit did not positively state the indebtedness-of the defendant below, under the provision of the Statute, although, in the preliminary part of the affidavit, it assumed positively that the indebtedness existed; but in the subsequent part of it, and as descriptive of the manner in which the debt accrued, it alleged it to have accrued “pursuant to a judgment of the Supreme Court of Louisiana,” instead of stating the *very,*consideration on account of which the indebtedness accrued.

The Court below held the affidavit sufficient to maintain tfie attachment, and received the record of judgment, in the Court of Louisiana, as evidence against the defendant below; and judgment was given in accordance therewith.

On the argument of the case before this Court, a motion was made on behalf of the plaintiff in error, to quash the attachment; but the Court refused the motion and ordered the cause to proceed to argument.

*E. W. Evans,*for Plaintiff in Error.

*Lovell*& *Bond,*for Defendant in Error.

It was contended that the Court below should have quashed the attachment for the insufficiency of the affidavit on which it issued, because it was entitled in the suit; and to that point was cited *Graham’s Practice,*160; *2d Johnson’s Reports,*372; *2d Cowen’s R.*

That there was no positive oath of the specific indebtedness of the defendant below, to the plaintiff below, to authorize the issuing • the attachment; and to this point the counsel cited *2d Durnford*& *East’s Reports, Old Edi~**31*tion,*55; 21 *of -N, E. -do.,*575; lsi *McLean’s Rep.,*471.

That no positive or definite amount of indebtedness was shown, within the purview of the Statutes. *Burnett’s Rep.,*290.

That the writ was issued under the 'authority of the Judge of Probate, who was not authorized by law to .give sanction to its issue under the Statute.

That the affidavit for procuring the attachment was entitled *in the cause;*and which was irregular, because there was no cause depending in the Court until the attachment was issued — until then, there was.no suit depending, to be entitled. The affidavit was merely preliminary, and antecedent to the commencement of the suit; and until the process issued there was no suit.

*By the Court.*

Stow, C. J.

We should be glad to affirm this judgment; for we are satisfied that substantial justice has been done, and that there is no irregularity subsequent to the incipient proceedings. But the original affidavit on which the attachment issued, is too defective to give jurisdiction. Though the entitling, irregular as it is, might perhaps, under -the practice of the late District Courts, be permitted, the describing it of October term, 1-847, when in fact, it was of 'the preceding April term, being sworn to in June, is too palpably erroneous to be overlooked.

Again, we are of opinion that the affidavit is defective in not -swearing positively to the indebtedness. This being a statutory proceeding of a somewhat harsh character, and wholly different from that of the common law, the provisions of the act must be strictly observed, and nothing can be presumed or taken by inference. In the fir st instance, the affiant swears directly and clearly to *32the indebtedness; and had he stopped here, only adding the character of the debt, the affidavit would have undoubtedly been sufficient. But instead of simply describing the nature of the debt, he says that it is *pursuant*to a judgment of the Supreme Court of Louisiana. • This will not do. The word pursuant has several meanings, some of which, in the connection the word is here used, would qualify the positive declaration before made, into a mere assertion, that according to the, .judgment, so much was due. This was not enough: 1 McLean, 471; 1 *D.*& *E.*406. According to — as appears from — by the terms *of*— •pursuant to — or other equivalent terms, refeiring to the judgment, may be all true, and yet in point of fact, nothing be due upon it. For these defects in the affidavit, the judgment is reversed.

Note. — The Chief Justice, in addition remarked, that the test of the sufficiency of an affidavit, was, whether the party making it could be indicted for perjury if the matters stated were false; and that an affidavit entitled in a suit, when no suit was pending in the Court, in which the title purported it was made; and which affidavit was made for the purpose of obtaining process, by which a suit should be commenced, was not such an affidavit as that a prosecution, for perjury could be sustained upon it, though false in fact.

In support of this opinion see *2d Cowen’s Rep.,*500; 7 *Term Rep.,*445; 1 *Bosauquet*& *Puller,*36 & 227; *Johnson’s Rep.,*372; 12 *do.,*461.