Arizona weekly citizen., 1882-11-12
LEGAL LORE.
Opinions Rendered by Hon. W. W. Hoover
 Judge of the First Judicial District of
 Arizona.

Zeckendorf ct al. vs. Girard ct al.
 A motion was heretofore made b
 plaintiffs ex parte to amend the affidaV
 in attachment herein. At the time C [. presenting this motion defendants er l. tered a general appearance by counse c and the motion was submitted after !, mere statement of points and was rule, 5 upon by the Court without that revie, B of authorities essential to the establish l. ment of general rule of practice upoi , thls question and also consequently t, the proper decision of this case there
 under. Upon motion of plaintiffs th,
 Court permitted a reheariuC upof sad motion; at the same time there wa, ' argued and submitted defendants mo ton to quash the writ of attachment II this action upon the ground of the de
 feet In the affidavit, which plain tiffs seek to amend by their motion This consists ID the omission in the af
 tidaut of the word contained in the
 third subdivision of Section l2l Com.
 piled Laws, page 426. That the sum for
 which the attachment is asked is a bona
 tde existing deSt dCe and owing from
 defendant to plaintiff
 The section requiring these facts Co
 be shown by such affidavit.
 As 1t IS well settled the language of
 the statute need not be followed, the
 first question presented to the Court is l whether the other averments of the af-
 tidavit sufficiently show their facts.
 The provisions of Section H Id. page I Nk.. Al.
 or pleading, permitting issue to be
 joined and trial of the question of
 fact and determination thereof. The
 question IS, then, an issue rendered on
 the facts recited as ommitt d in terms
 by other averments of the affidavit. Plaintiffs contend that the word in- debted contained in the averment that
 defendants are indebted 10 plaintiffs,
 etc, covers substantially the same
 facts required in the omitted aVerment
 and that these facts would be but
 re-averred if again set forth. It is con- ceded Tn the argument, as no point Is
 made, that the word indebted means an existing debt and that tt means a debt which Is owing but 1t is coDtended that 1t does not mean bona fide debt nor does It mean that 1t Is due The proper rule of construction Is also a contention herein. 4 careful review of the authorities sub | mItted upon this point establishes to | the satisfaction of the Court, that in | construing code provision that the general code rule of construction Is | proper to be adopted, viz: that a liberal construction shall be gwen | which will give force and effect to the provision, notwithstanding 1t may be in derogatlon of some common law right. This being a remedial statute 1t should receive such construction. The object Of the statute being to furnish security to the creditor and to put 1t without the power of a debtor to SO change the form or investment of his property as to prevent its sequestration in satisfac- ton of a judgment. Experience has proven by the general adoption of this 1 class Of statutes in the different States that, they furnish a reliable basls for the extension of commercial transac- tlons and they are the very foundation of the credit system in vogue and upon which the trade of the country is car red on. While the statute is thus | Oenehcial and important in its proper use Its abuse Is prevented in this Territory as to matters of substance by l traverse and trial of fact as above ,Ited and as to matters of form by ( notion to quash under provisions of ( ,tjiIfI fU be 01urtiiuf sis,9 .s.,s.s -.-- forth in the affidavit that a traverse of them will put in issue the bona fides of the debt and its maturity. And m deciding this question the Court can not be controlled by precedents arising first in a common law State where the | statute IS strictly construed as being in lerogatiOn of common law right, or in States where the action itself finds it's inception in the filing of the affidavit instead of a declaration, or complaint, and consequently the averments being l q like rule IS proper, or n those States where the defendant l being estopped from traverslng the 'act, the affidavit must be construed III | ike manner to enable the Court to protect the defendant, and where n precision and particularity are required inconsistent with the rules appertaIn ng to a pleading. The provisions of lur code of procedure are copied from California as to the requisites of the af idavit, with the radical change of per hitting a traverse of the facts alleged therein; from this change follows the in ,ldents appertaining to the changed character and office of the affidavit.
 The word debt in it's primary meaning by words of limitation a sum due, a demand payable at the time, and the Courts of various States have construed the word with reference to the justice of it's application to the particular case before them either in its primary or in a more limited sense as expressing a sum owing and not due. The question of its application here can not be governed by tho manner Of its use by the legislature, for while they evidently used 1t in a limited sense, that fret would not per se preclude the use of 1t in adifferent one by pleader, and the fact that framer of printed blank in general use SO adopted 1t, cannot establish a usage tO govern the Court, to the extent ot furnishing a rule of construction. The question is, will the appllca- tion of broad construction of the word indebted in this affidavit work substan- tial justice. It appears tO the Court that the omission Of the words recited above were by a mistake, and if this affidavit is sufficient to put the plffs. on proof of the facts on issue joined then, if this debt be not due or be fraudulent the defts. can be heard at the trial of the issue joined and have a proper order. Under the rule adopted in Wisconsin and Col orado, the Court is of the opinion that the word indebted" puts in issue i1 the affidavit in question the fact that the debt is bona fide. and that it IS existing and due and owing and therefore that the affidavit substantially complies with | the statute and IS sufficient.
 It is unnecessary to comment on the | question of the power to amend, except | to state that the opinion of the Court | filed on the first hearing of plffs. motion | will not constitute precedent and the 1 point Is not decided.
 Ii is ordered that both the motion, | plffs, and of defendants, the first to amend the affidavit and the second to auash the writ, be denied.
 WILSON W. HoovER.
 A fellow at Texas Fair undertook to make some money by taking silhouette pictures. but the first girl be silhouetted on seeing the result burst into tears at heinz represented as black, and the crowd rot indignant at the silhouette man for insulting lady by portraying her as a durned nigger, and it was a won der that they let him of with a tarring and feathering, instead of lynching him.
 The United Presbyterisns in Phila- delphia have uttered a cOunterblsst against organ-plsying in churches. It
 is simply wind against wlnd. They are great sticklers for psalms as against hymns; but the 150th Psalm tells people
 of God to praise Him with the trumpet,
 psaltery, harp, timbrel, strlnged instru-
 ments, organs and cynbals-s whole
 orchestra. But David was not United
 Presbyterian.
 lnok nith scorn upon the selfsh