Cross v. McMaken

Ohristiancy J. The. only question in this case is that of the sufficiency of the affidavit upon which the writ of attachment issued. The statute — Comp. A. Oh. Ufi, § P — requires the affidavit to state, among other things, “that the defendant is indebted to the plaintiff, and specifying the amount of such indebtedness, as near as may be, over and above all legal offsets, and that the same is dtoe upon contract, express or implied, or upon judgment.” The affidavit in this case, is that the defendants “are justly indebted to the said E. Y. McMaken, plaintiff in this [515] writ, upon express contract, in the sum of. $619.48, as near as may be, over and above all legal set-offs;” thus omitting any allegation that the indebtedness is due, except as this might be inferable from the term “indebted” in the context in which it is used. There can be no doubt of the intention of this statute, to require of the plaintiff, as a condition precedent to this extraordinary statute proceeding which seizes the defendant’s property before trial, that he shall first show by his own oath, or that of some other person knowing the facts, that he has an existing cause of action against the defendant, arising upon contract; in other words, that there is an indebtedness of the defendant which is due or payable at the time. — See Buckley v. Lowry, 2 Mich. 418; Hale v. Chandler, 3 Id. 531; Galloway v. Holmes, 1 Doug. Mich. 330; Green’s Pr. § 219. It is urged by the counsel for defendant in error that this is sufficiently shown by the allegation in the affidavit that the “defendant is indebted.” But this phrase, in itself, is somewhat equivocal. In the popular, as well' as the strict legal sense, a man is said to be indebted to another without reference to the question whether the debt is due or yet to become due. The law recognizes a debt not yet due as a present debt, though payable in future— debitum in prcesenti, solvendum in futuro. And though the language of the affidavit, that “defendant is indebted,” when considered in reference to the purpose of the affidavit, might furnish an inference that an indebtedness already due was intended; yet, without an express declaration to this effect, in the affidavit, there might be room for some doubt, or equivocation at least, as to the real meaning of the affiant. The legislature have seen fit to require that this shall not be left to inference, but shall be placed beyond all question or doubt, by requiring proof of both the facts, the indebtedness, and that it is due; and have required the affidavit positively to state both. [516] The language is, “clue upon contract.” If they meant no more than is claimed by defendant in error, they would much more, naturally and appropriately have said, “ arising upon contract,” or “that the same is founded upon contract.” This is put boyoncl all reasonable doubt by the language of the fourth section, “ no writ of attachment shall be issued under the provisions of this chapter, unless the amount slated in such affidavit as dim to the plaintiff over and above all legal set-offs, shall exceed the sum of $100.— See Buckley v. Lowry, 2 Mich. 418. And in view of the abuses to which this extraordinary remedy is liable, we deem it a wise policy to require a somewhat strict compliance with all the essential conditions prescribed by the legislature as safeguards against such abuses. Even with this provision as it is, the records of our own .courts show that, in several cases, the writs have been issued when the debt, or a great part of it, was not yet due.— Buckley v. Lowry, 2 Mich. 418; Hale v. Chandler, 3 Id. 531; and see Galloway v. Holmes, 1 Doug. Mich. 330. In Wilson v. Arnold, 5 Mich. 98, this point, though raised, was not passed upon by the court, the affidavit being held bad upon other grounds. And what is there said of the requisites of the affidavit must be construed with reference to the ground upon which the opinion in that case was based. The Circuit Court erred in holding the affidavit sufficient; and as the whole proceeding depended upon this, the judgment must be reversed with costs. The other Justices concurred.