Cheadle v. Riddle, 6 Ark. 480 (1846)

April 1846 · Arkansas Supreme Court

6 Ark. 480

Cheadle vs. Riddle.

As to what is a substantial compliance with section 3, oí chapter 13, Rev. Stat. p. 1156, prescribing the form of the affidavit to be filed by a plaintiff previous to the issuance .of an attachment.

The declaration, attempting to set out the bond sued on according to its'legal effect, described it as payable to “Abs. J. Meredith, twelve months after date;” on the trial the plaintiff offered in evidence a bond payable to “bs. J. Meredith,-months' after date” — held that the variance was fatal, and the instrument should have been excluded.

Writ of error lo the circuit court of Crauford county.

This was an action of debt, by attachment, 'brought by Joseph Riddle, assignee of Absalom J. Meredith, against Thomas F. Chea-dle, and determined in the Crawford circuit court, in July, 1844, before Brown, Judge.

The action was founded upon a bond, and it is described in the declaration thus: — “For that the defendant on the 12th day of April, 1839, at, &c., by his certain writing obligatory, sealed with his seal, &c., promised to pay, twelve months after the date thereof, to one Absalom J. Meredith, by-the name of Abs. J. Meredith, the-sum of one hundred and twenty-five dollars” &c.: — then followed-&n allegation of the assignment of the 'bond by Meredith to plaintiff.

To obtain the attachment, :in addition to filing the usual bond, the plaintiff made before the Clerk the following affidavit:

“ This 30th day of December, A. D. 1843, before me Alexander McLean, Clerk of the circuit court in and for the county aforesaid, Joseph Riddle, who being duly sworn, according to law, deposeth and saith that Thomas F. Cheadle is justly indebted to him in the’ sum of one hundred and twenty-five dollars; and that said Thomas F. Cheadle is not a resident- of the State of Arkansas.

JOSEPH RIDDLE.”

The defendant pleaded «¿1 debet in short upon the record, by consent,' to which plaintiff took issue.

The defendant then filed exceptions to the affidavit upon which-the attachment issued, asked leave to enter his common appearance to the action, and moved the dissolution O'f the attachment, under seclion 29, chapter 13, Rev. Stat.p. 120. Tlie' éxcep-tions taken to the affidavit, were substantially as follows : 1st', “it is not entitled of the court in which it was intended to be used, nor of the names of the parties to said action : 2d, the body of the affidavit does not show its applicability and object, inasmuch as it does not state that the affidavit is made either by said plaintiff in said declaration mentioned, or by some other person for him'; 3d, it does not state that said defendant, in said'plaintiff’s declaration mentioned, is indebted to said plaintiff therein mentioned in the sum in the affidavit specified, nor that said- defendant is a non-resident of the- state.”

The court overruled the 'exceptions, and defendant excepted.

The issue, on- the plea of nil debet, was then submitted to the court,>sit-ting"»as a-jury,, and the court gave judgment in favor of the plaintiff for the amount of the bond, &c.

Pending the trial,■ the defendant took a bill of exceptions, from which it appears that the plaintiff offered in evidence, as the bond sued on,- the following instrument: — “-'months after date I promise-to pay to bs. J. Meredith or order the just and full sum of one hundred and twenty-five dollars, for value received of him: this 12th day of April, 1-839'.-

THOS. F. CHEADLE, [seal.]”

To the introduction of which defendant objected,-on the ground that it varied from the bond described in the declaration, but the court permitted it.read, and he excepted.

The defendant brought error.

E. Cummins, for the plaintiff.

Whatever may be the opinion of the court as to the sufficiency óf the affidavit, there can be no doubt as to the variance between the bond sued on and the bond offered in evidence. The declaration describes the bond as payable 12 months after date, when the bond given in evidence is payable — months after date. There is no custom, law or presumption which would authorize the court to decide that a bond drawn in such form, was, in legal effect, payable 12 months from date. The defect might be cured by averment but this is not attempted. The declaration also, describes the bond as payable to “Abs. J. Meredith” when the bond given in evidence is payable to “ bs. J. Meredith.” This is also a fatal variance. See Hanly vs. Real Estate Bank,. 4 Ark. R. 598, and authorities cited in argument. Garvthers vs. Real Est. Bank, 4 Ark. R. 447.

The affidavit seems to be defective in not averring that the. “plaintiff” makes the affidavit, or that the “defendant” is a nonresident and indebted. The proceedings in attachment being in derogation of the principles of the common law, it is necessary that the statute should be strictly followed. The affidavit does not appear to have been filed at the time of filing the declaration. It does not show where the oath was administered. This being the case, it does not appear that the officer was acting within his jurisdiction in administering the oath. It does not state for what cause or in what manner the party was indebted, whether on bond, bill or account. It certainly should have been stated that he was indebted by bond as alleged in the declaration; so as to show that the affidavit referred to the same debt sued for. See Tidd’s Pr. 156, 15S.

.For these defects the exceptions ought to have been sustained to the affidavit, and the attachment dissolved under sec. 29, ch. 13, Rev. Stat.

J. S. Roane, contra.'

Oediiam, J. not sitting.

Johnson C. J.,

delivered the opinion of the court.

The affidavit filed by the plain tiff below is conceived to be a substantial compliance with the requisitions of the statute, and consequently, the circuit court properly overruled the exceptions to it.

But it is also contended that the circuit court erred in admitting the writing obligatory in evidence when it should have been excluded'. Whenever a party attempts to set out the instrument sued upon in licet verba, he is held to great strictness in the description, and the slightest variance is fatal to the action. The plaintiff below in his declaration did not attempt to describe Ihe writing in the precise wolds of the instrument, but only according to its legal effect'. The'question then is whether he has so described it. The declaration speaks of an obligation to pay one hundred and twenty-five dollars, payable twelve months after date and executed by Thomas F. Cheadle in favor of Absalom J. Meredith by the, name of ‘‘AAs. J. Meredith.” The one offered in evidence is made payable ‘‘months afterdate” and executed'by Thomas F. Cheadle, and made payable to “bs. J. Meredith.” It cannot be contended with any propriety, that the writing declared upon and the one given in evidence to the court, sitting, as a jury, are identical or even the saime in substance and legal effect. The variance is plain and palpable and that in a' material matter, consequently the proof did not correspond with the allegation. This being the case it follows that the circuit court erred in permitting the instrument offered to go to the jury. It is therefore considered and adjudged that the judgment of the circuit court of Crawford county be and the same is Hereby' reversed, annulled’ and set aside with costs, and that the case be remanded to said circuit court to be proceeded in according to law, and that both parties have leave to amend their pleadings if they desire to do so.