B. W. & J. P. Force & Co. v. Hubbard

26 Ga. 289

• Court: Supreme Court of Georgia
• Decided: August 15, 1858
• Status: Published

Opinion

By the. Court.

Lumpkin J.,

delivering the opinion.

Formerly, the attachment laws were constructed strictly; one of the provisions of which was, that any attachment sued out and returned, otherwise than the Act itself prescribed, should be void. The late law, by providing that a substantial compliance with its provisions, shall be sufficient has intentionally overturned the old doctrine.

In this case the party swears, that there is so much due him upon the ft. fa. issuing upon the judgment, instead of deposing as to the indebtedness upon the judgment itself. We are clear that the affidavit is sufficient. What is due upon an execution issuing upon a judgment, is due upon the judgment upon which it issued, and no more and no less. The judgment is the evidence of the debt; the ft. fa. the process for enforcing it. To swear, as the creditor did in this caso, that there is so much due upon the ft. fa. issuing upon a particular judgment, is, in substance, to swear that there is so much due upon the judgment itself. In other words, there cannot be one sum due upon the judgment, and another upon the execution.

Judgment reversed.