Evans v. Lawson, Smith & Co.

Citations

• 64 Tex. 199

Syllabus

<p>L Attachment—Affidavit — Agent.— Where an affidavit for an attachment is made by an agent it is not necessary that he should swear that he is the agent, but it is sufficient if he is described as such in the affidavit. Following Wetherwax v. Paine, 2 Mich., 557; Mandel v. Peet, Sims & Co., 18 Ark., 244; Murray v. Cone, 8 Port. (Ala.), 252, Whether such a question can be raised on a motion to quash, based solely on what appears in the affidavit, admits of question.</p> <p>2. Same — Amount—Variance.—Where the amount of indebtedness sworn to in the affidavit for an attachment was merely the principal sued for; and did not include the interest and attorney’s fee claimed in the petition, held, that the attachment should issue for the amount sworn to; that the petition was not sworn to, and there was no uncertainty as to the amount sought to be secured by the attachment; the affidavit was sufficient. Following Stewart v. Heidenheimer, 55 Tex., 648; Henrie v. Sweasey, 5 Blackf., 275; Lathrop v. Snyder, 16 Wis., 298.</p> <p>3. Same— Offset,— In case defendant claims an offset, and plaintiff sues out an attachment for a sum certain, without deducting the offset, the attachment will still hold good, for the offsets would only appear upon the trial. Following Collier v. Lyons, 18 Ga., 648. As to what would be the effect of the affidavit’s claiming a larger indebtedness than is claimed in the petition is not considered.</p>