Espey v. Heidenheimer Bros.

Citations

• 58 Tex. 662
• 1883 Tex. LEXIS 82

Syllabus

<p>1. Attachment.— When, in a suit by attachment to secure a debt due on promissory notes, the defendant’s right to a credit, resulting from a partial payment, is admitted, but the date of such payment is not averred either in the petition or affidavit, the attachment cannot be sustained and the writ of attachment should be quashed.</p> <p>2. Same.— Though the presumption of law in a suit on a promissory note, where the date of a partial payment is alleged, would ordinarily be that it occurred on the day of the execution of the note, no such presumption will obtain in suits by attachment. The requirement of the statute, that the amount of the demand shall be stated in the affidavit, must be strictly observed; and this is not done when, by an omission to state the date of an acknowledged credit, there is nothing by which, in computing interest, the amount due may be certainly determined.</p> <p>3. Cases distinguished.— This case distinguished from Morgan v. Johnson, 15 Tex., 568, which held that the affidavit for attachment was sufficient if it alleged that the defendant was “ indebted to the plaintiffs in the several sums of money mentioned ” in the petition. It is also distinguished from Wright v. England, 18 Tex,, 298, which sustained an affidavit to the effect that the defendant was justly indebted to plaintiff in a specified sum besides interest, because, the principal debt and rate of interest being stated, the interest was of certain ascertainment.</p> <p>4. Attachment.— The statement required by the statute as to the amount of the indebtedness in proceedings by attachment, must be as carefully set forth as any other in the affidavit. The clerk who issues the writ must state in it the amount, and this he cannot do by reference to legal presumptions arising on facts stated.</p> <p>5. Evidence — Variance.— In attachment proceedings to recover the amounts specified in several promissory notes, it was alleged that the defendants contracted in the notes to pay “ten