This was a proceeding by attachment, and a motion was made at the return term of the writ by the defendant’s attorney, who appeared specially and for that purpose alone, and moved to quash the proceedings for several reasons stated in the motion. It is necessary to notice but one of these reasons.
The affidavit in this case was made in behalf of the firm of Bennett Bros. & Co., and does not show of what persons said firm is composed. The writ of attachment yras issued in favor of Cornelius Bennett, Joseph F. Bennett and Henry Lesinsky, and does not show that said persons composed the firm of Bennett Bros. & Co., or any other firm.
It is laid down in Chitty’s Pleadings, that, “ It must be stated with certainty who are the parties to the suit, and therefore, a declaration by or against C., H. & Company, not being a corporation, is insufficient,” and that, “ Actions to be properly brought must be commenced and prosecuted in the proper Christian and surnames of the parties, and not in the name of the company or firm.” By the statute of New Mexico the party bringing suit is required “to set forth the Christian and surname of both plaintiff and defendant.” An affidavit in attachment is an important pleading. It is a declaration under oath by which property is taken from a defendant before a judgment is obtained against him. It is traversable and every material fact stated in it.may be denied and a trial upon it.
It must be sufficient in itself. The trial is had upon it without reference to the petition or declaration and we cannot look to the petition or declaration to supply its deficiencies. We cannot presume that the plaintiffs in the declaration, affidavit and writ are the same: they must be described in all these papers. For aught we can know from the affidavit and writ in this case, the parties mentioned in them may be very different.
We have no statute authorizing the amendment of an affidavit in attachment, and the judgment of the district court in sustaining the motion to quash the proceedings in this case must be sustained.
Judgment affirmed.