In this case the only question is upon the sufficiency of an affidavit upon which an attachment issued under chapter 140 of the Compiled Laws. The Court below dismissed the writ, upon the ground, that the affidavit was fatally defective, and the plaintiff assigns this for error.
The statute allowing the proceeding by attachment provides among other things, that the plaintiff,- or some one in his behalf shall “ make and annex to the writ an affidavit stating that the defendant is indebted to the plaintiff, and specifying the amount of such indebtedness as near as may be over and above all legal set offs,” &c. — § IflliS Com. L. — And further that no writ shall be issued “ unless the amount stated in such affidavit ” shall exceed the sum of one hundred dollars. — § Iff Iff Com. L.
By a series of decisions this' Court has determined that the statutory requirements respecting the affidavit must be strictly complied with.
Guided by the spirit of these decisions, by the nature of the proceeding, and the phraseology of the law, I have been led to conclude, that in order that a party may avail himself of this remedy, it must be shown affirmatively and positively on the face of the affidavit, that a sum certain above one hundred dollars, is due to the plaintiff over and above all legal set offs; and that the sense and meaning of the statute will not allow the employment of the words of the provision, or words of equivalent import. I have supposed that the paragraph requiring the affiant to specify the amount, was intended to point out the end to be accomplished; and not to prescribe a formula for the affidavit.
According to this view an affidavit in the words of the statute, or otherwise drawn with some qualification, which must leave the Court uninformed by the oath of the affiant as to his ability to state the real amount, would be defective in a jurisdictional point: the Court would neither *269have a positive statement of the amount, nor any evidence, on oath, as to the circumstances covered by the qualification, or the interpretation put upon it by the affiant.
The affidavit in the present case states that the defendant is indebted to the plaintiff in the sum of three thous- and dollars, “ as near as can be specified by this deponent,” and since the Court could not know the ability of the affiant to fix the real amount, in the absence of any showing on that subject, it has seemed to me that the qualification in the affidavit, left the- proof essentially defective.
My brethren, however, think differently. They are satisfied that a construction which would make this affidavit insufficient on the ground mentioned, would conflict with the practice of the courts, and the uniform opinion of the bar, for the whole period in which the proceeding by attachment has been authorized. And they are likewise of opinion, that the affidavit substantially meets the design of the statute, and proves with reasonable certainty, for the purpose of authorizing the writ, that there was an amount exceeding one hundred dollars due from the defendant to the plaintiff, when the affidavit was made.
From this it follows that the judgment of the Court below must be reversed with costs.
The other Justices concurred.