Dissenting opinion of
Lewis, J.I fully concur in the opinion of the Chief Justice, delivered in this case, except that portion referring to the respondent’s affidavit for attachment.
In my judgment, that affidavit meets neither the letter nor spirit of the statute. The provisional remedies of the Practice Act were unknown to the common law. They are summary and harsh in their character, and should therefore be strictly pursued by liti*150gants resorting to them for aid. This statute under consideration— in certain cases — upon the mere ex parte affidavit of the plaintiff, allows the property of the defendant to be summarily seized and taken from his possession before he has an opportunity of being heard in Court, or contesting the legality of the claim made against him. Whilst it may be perfectly proper to alloAY the creditor this summary remedy against his debtor, it must be conceded that the debtor should be protected from its abuse by all the safeguards which can possibly be thrown around him.
This the Legislature has endeavored to do by requiring the party suing out the attachment to make an affidavit of the existence of certain facts, and to give a bond or undertaking for the protection of the person whose property is to be attached. The affidavit required of the plaintiff is to some extent security to the defendant against the issuance of the writ in cases in which it is not authorized. The statute specifies the cases in which it may issue. “ First: in an action upon a contract for the direct payment of money, which contract was made or is payable in this State, and is not secured by mortgage, lien, or pledge upon real or personal property; or, if so secured, when such security has been rendered nugatory by the act of the defendant. Second: in an action upon a contract against a defendant not a resident of this State.” In this very awkward language the Legislature has pointed out the only cases in which an attachment may issue against the goods of the defendant. And that it might not issue in any other case, by the section following the one quoted above the party applying to have it issued is- required to make affidavit that the necessary facts do exist — to show by his own oath that it is one of those cases wherein an attachment is authorized. Whilst this affidavit is required, the defendant has some security against its issuance, except in a proper case; because if all the necessary facts be not sworn to the attachment should not be issued, and the fear of a prosecution for perjury will usually be sufficient to deter any false SAvearing as to the existence of those, facts. Protection for the debtor is doubtless the sole object of requiring the affidavit from the plaintiff. It follows, then, that the defendant has a right to insist that the writ shall issue in no case except it be one of those specified in the law, *151and that the affidavit shall at least substantially conform to the requirements of the Practice Act. If an affidavit be necessary at all, it is equally necessary that it substantially conform to the requirements of the law. If the Courts can hold that any material requirement of the Act authorizing the issuance of an attachment can be disregarded, why may they not disregard all its requirements ? If an affidavit, which fails to show the existence of some material fact which is required to be shown by it, be held sufficient to support an attachment, it seems to me that by the same reasoning it might be sustained, though there be no affidavit whatever; for if one material requirement can be dispensed with, all may be.
The question then presents itself, whether the affidavit under consideration conforms to the requirements of the Practice Act. In my opinion it does not. Section 2, Laws of 1864-5, p. 223, declares that “ the Clerk of the Court shall issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed, showing first, that the defendant is indebted to the plaintiff,” etc. * * * * * “ Third: that the sum for which the attachment is asked is an actual bona fide existing debt, due and owing from the defendant to the plaintiff.”
This language is certainly explicit that .the affidavit must show that the defendant is indebted to the plaintiff, and that the sum for which the attachment is asked is an actual bona fide existing debt at the time the affidavit is filed. The affidavit must show that the defendant is indebted, and that the debt is due at the time the attachment is applied for, not that such facts existed eleven days before. If these facts do not exist at the time the writ is applied for, the plaintiff is not entitled to it. That they did exist eleven days before is not sufficient to authorize its issuance. Surely no argument is necessary to sustain this proposition. That the defendant is indebted at the time the attachment is applied for is therefore a material fact, and is indispensable to the right to have the attachment issued. Indeed it is not more necessary for the plaintiff to swear to the existence of a debt from the defendant, than it is for him to show by his affidavit that such debt exists at the time he applies for the writ; because if it did not exist at that time he is no more entitled to the attachment than if no debt had ever existed. *152Can it, then, be said that the letter or spirit of the law is met by the filing of an affidavit sworn to eleven days before the time of the application for the writ ?
Is it shown by the oath of the plaintiff that the facts recited in his affidavit existed at the time he applied for the writ ? Certainly not.' Instead of the plaintiff’s oath that the defendant is indebted to him at that time, there is nothing but a presumption of law to support it. It is quite evident that in the intermediate time between the date of the affidavit and the application for the attachment, all the grounds authorizing it may have ceased to exist. The debt may have been paid, a mortgage or pledge may have been given to secure it, or the defendant, though perhaps not a resident of the State at the time the affidavit was sworn to, may have become so before the application for the writ. Hence the necessity for showing that the proper facts exist at the time of the application for the attachment. If the law requires anything, it requires the person seeking the issuance of the writ to swear that the debt exists and is payable at the time he applied for the attachment. As in my opinion nothing of the kind was done in this case, the attachment was improperly issued, and should be dismissed.
But a presumption of law is invoked in aid of the affidavit in this case, and it is claimed that as the plaintiff made an affidavit showing the necessary facts eleven days before application for the writ, the law presumes a continuance of those facts until the contrary is shown. Of the correctness of this rule of evidence there can be no doubt, but it seems to me that it is impotent to assist the plaintiff in this case. There may be a presumption of law that the state of facts sworn to in the affidavit continued up to the time the attachment issued; but that does not meet the requirements of the Practice Act, which makes it incumbent upon the plaintiff to make an affidavit that they did exist at that time. It seems to me totally inadmissible to substitute a presumption of law for an affidavit which is explicitly required by the statute. Such presumption as evidence is greatly inferior to that required by the statute, and much less satisfactory than the affidavit of the plaintiff would be. I do not think the attachment should be allowed to issue upon evidence inferior in its nature to that required by the law. If the Courts *153can disregard the plain letter of the statute as to the character of evidence required to prove the existence of the facts authorizing an attachment, why may they not disregard its requirements entirely, and allow the writ to issue without evidence at all ? It cannot be claimed that those requirements are merely directory. Where then is the authority for departing from their strict letter ? True, the construction which I place upon the law may in some cases produce hardship and inconvenience, but consequences should never influence a Court in its construction of a law which is not ambiguous in its phraseology. If the Legislature has expressed its intention clearly, that intention must be followed regardless of consequences. That it is clearly expressed, it seems to me there can be no doubt.
I am aware that there are cases in New York which hold that a defective affidavit may be bolstered up by supplemental affidavits, and that in that way attachments have been maintained which could not be supported upon the original affidavit. The plaintiff in this case, however, is not holpen by these authorities, for the reason •that he made no effort or offer to cure the defect complained of. I am also aware that it has been held in South Carolina and in Missouri that' an affidavit made as this was, several days before the application for the writ, is sufficient. I do not know, however, what the statutes may be upon which these decisions are made, and as they seem to be in direct conflict with the clear spirit and letter of our statute, I am not inclined to follow them.
These being my views on this point, I am constrained to dissent from that portion of the Chief Justice’s opinion which refers to it.