Culbertson v. Cabeen

Citations

• 29 Tex. 247

Syllabus

<p>The affidavit is sufficiently formal and correct, except in that part which attempts to set forth the ground on which the attachment was sought, which is in these words: “ Affiant further says, that said Culbertson is about to transfer or secrete his property,” &c., &c. In order to entitle a party to an attachment, it is necessary, as a condition precedent to his right, that he shall make affidavit to some one of the various causes prescribed by the statute as a sufficient ground, (Paschal’s Dig., Art. 142, Note 259.)</p> <p>That a party is about to transfer his property for the purpose of defrauding his creditors is one ground; that he is about to secrete his property for the same fraudulent purpose, is another ground. Each one of these causes is a separate and distinct fact, independent of the other.</p> <p>To transfer property is to place it in the hands of another* to secrete property is to hide it, to put it where the officer of the law will probably not be able to find it. These two acts can in no sense be considered as phases of the same general facts. To embrace these two causes in the same affidavit, makes the affidavit indefinite. Neither fact is sworn to. The affidavit is in the alternative. The affiant swears that one or the other fact exists, but does not say which.</p> <p>The affidavit must be certain and positive, and not in the alternative.</p> <p>As to notes not due when the attachment was sued out, the right of the party to sue and of the court to entertain the suit depends upon the attachment, for it is by the attachment alone that a debt not due can be sued; and the suit must abide the fate of the attachment. (Paschal’s Dig., Art. 154, Note 265.)</p> <p>But if the notes mature pending the suit, the plaintiff may amend, subject to all defenses.</p> <p>The remedy of attachment is a harsh one and must be strictly pursued, and if it be pursued wrongfully and without probable cause, the defendant may plead the actual damages sustained in reconventi