Bond v. Patterson

1 Blackf. 34, 1819 Ind. LEXIS 2

• Court: Indiana Supreme Court
• Decided: July 8, 1819
• Status: Published

Opinion

Holman, J.

It is an incontestible position, that no action can be supported for any demand 'whatever, unless the demand is so far identified by description, as to be distinguished from any other demand of a like nature. Its most prominent features must be delineated, so as to be known wherever they make their appearance, that one recovery mpy bar every future attempt to enforce the same demand. This position Í3 equally applicable to an action by attachment, ás to orie prosecuted in the ordinary way. If more certainty were required in either, it should be found in proceedings by attachment, inasmuch as they are conducted in the absenee of the defendant. In this case the demand has no certainty except as to the amount, and that it was due before the attachment issued. Whether the debt was due by bond, bill, note, or account, remains unknown. This record would not bar any action, brought by' Patterson against Bond, on any contract whatever. It is true, the act of assembly, regulating foreign attachments, does not require a specific description of the nature of the debt to be set forth in the oath.or affirmation on which the attachment is founded; nor would this Court require it wherever a declaration had been filed with descriptive certainty. Here no declaration has been filed, and the demand as set forth in the attachment, is too uncertain to be enforced. Whether,- for this deficiency, the attachment could be objected to, it is not necessary to enquire, as there is manifest error in a previous part of the proceedings. The act allowing foreign attachments, Stat. 1807, p. 82-, requires an oath or affirmation to be made before the attachment issues; which oath or affirmation is to be filed in the clerk’s office

(1). In this case we have no evidence whatever, that any oath or affirmation was filed in the clerk’s office, and no other evidence that any such oath or affirmation was made, but what appears on the face'of the attachment. The evidence thus derived is inadmissible, inasmuch as the written oath or affirmation is required by the statute. Without such oath or affirmation, the attachment cannot he sustained.

Caswell, for the plaintiff.

Per Curiam.

The judgment is reversed, with costs.

Acc. Ind. Stat. 1823, p. 69.