Saunders v. Stephenson

Fletcher, J., delivered the opinion of the court. The affidavit, iipon which the note sued on was probated, was not made by the creditor, but by her husband as her agent. [678] This brings the question squarely within the holding of this court in McWhorter v. Donald, 39 Miss. 779, 80 Am. Dec. 97. It is true that appellant here offers some excuse for not making the affidavit which the statute requires, and also triie that this ■ excuse was wanting in the McWhorter case; but the decision is that case is based upon the peremptory requirement of the statute, a departure from which is fatal. Cheairs v. Cheairs, 81 Miss. 662, 33 South. 414; Walker v. Nelson, 87 Miss. 268, 39 South. 809. Affirmed.