William G. Zinn, et al., Appellants, vs. Louis Dzialynski, Respondent, 13 Fla. 597

RANDALL, C. J., delivered the opinion of the court. The law under which this writ was issued was the act of December 20, 1859. It required the affiant to state “ that the amount of the debt or sum demanded is actually due.” The charge of the court required the jury to find that not less than the precise amount named in the affidavit was actually due. We cannot agree to this construction of the law.

It is required, of course, that the indebtedness must be actually due, that is, that the day of payment had arrived according to the contract, but it is hot required by the spirit of the law that if, by an error of the agent in making a computation upon a statement admitted by the defendant to be correct, it should appear that there were a few dollars or a few cents more or less actually due than was stated in the affidavit, the plaintiffs should fail though the grounds upon which the attachment was obtained might be amply proved.

If the amount sworn to be due is sufficient to give the court jurisdiction of the subject matter, and the other grounds for issuing the writ are sufficient to meet the requirements of the law, the writ should not be discharged unless the discrepancy between the amount claimed and the amount pi’oved is so material as to wai’rant the imputation of fraud or bad faith on the part of the plaintiffs. The respondent ui-ges that a plaintiff might, for a debt of one dollai’, attach propei’ty worth one thousand dollars, and thus work great loss and damage to a defendant.

This is quite trxxe, and the plaintiff might also be thei’eby guilty of perjury, in addition to fixing himself and sureties in the attachment bond for all the actual damages sustained.

The bond required is deemed ample seeuxity for all the damages which a defendant “ may sustain in consequence of improp- • erly suing out said attachment.” The defendant in his testimony does not deny what the plaintiffs’ witness, Lee, states in his testimony, that he admitted to Lee that the amount of the account presented to him, and upon which the witness computed the interest on commencing the suit, was due, nor does he pretend that he then claimed to offset the amount which he testifies he paid Mr. Mosely in the previous autumn.

He is therefore estopped from insisting upon this reduction of the amount due, as a ground for quashing the attachment. • Hpon this branch of the case, therefore, we are of opinion that the charge of the court was erroneous. The residue of the charge is not exeepted to. The question raised by the issue covered by the latter portion of the charge was, whether there was at the time of taking out the attachment reason to believe that the defendant would fraudulently part with his property before judgment could be recovered against him. The issue is not confined to facts which came to the knowledge of the affiant.

Such was not the purpose of the law. The object of the law is to give a remedy when there is in fact reason to believe that there would be a fraudulent parting with the property within the time specified. The old statute required a positive oath. The statute of 1859 modified this so as to enable the party to obtain an attachment without having to take an oath absolute in its character.

A man could not well swear positively that a defendant would fraudulently part with his property within a given time, and conscientious men would hesitate before taking such an oath, while he might very properly swear that he had reason to believe it. The purpose of the statute was to correct this evil, but it was not its purpose to restrict the evidence going to show facts within the affiant’s knowledge. Several questions arose during the progress of the trial upon the materiality of testimony offered by the respective parties and received or rejected.

As to the ruling of the court in rejecting testimony offered, we do not think it would have materially affected the case if the ruling had been otherwise; and as to the proof admitted against objections, although some of it did no't concern the issue, it was not of such a character as to have necessarily affected the verdict under the charge of the court. It is sufficient to suggest that the evidence should be confined to the issue presented by the opposing affidavits under the law.

It was suggested upon the hearing that the testimony and proceedings before the jury were not before this court, because, what purported to be a bill of exceptions, was not such, as it was not signed by the judge. The original bill of exceptions, however, sent up under the order of the circuit judge, is properly signed. The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings according to law.