"George F. Cope, plaintiff in the above suit, makes oath and says, the facts as stated in the foregoing complaint have been read to him, and that he knows of his own knowledge they are as stated therein true. Affiant says, on his said oath aforesaid, that said defendant is indebted to the plaintiff in the sum of $4,253.30, over and above all legal set-offs and counter-claims upon (in part of both an express and implied contract), for the direct payment of money, and that such expressed and implied contract was made and are payable in this Territory, and that the payment of the same has not been secured by any mortgage, lien or pledge upon real or personal property; that the defendant is a non-resident of the Territory, and a foreign corporation; that the sum aforesaid set out in this affidavit, and for which the attachment is asked, is an actual bona fide existing debt, due and owing from said defendant to the plaintiff; and that this attachment is not sought, and the action is not prosecuted to hinder, delay or defraud any creditor or creditors of said defendant."

An undertaking was filed by Cope, according to law, and the writ of attachment was then issued by the clerk of the court. The defendant appeared by its attorneys, and moved to dismiss the writ of attachment on account of the insufficiency of the affidavit. The court, WARREN, J., denied the motion, and defendant excepted.

W. F. SANDERS and H. N. BLAKE, for appellant.

The paper, termed the affidavit for the attachment, performs a double office, and also forms the verification of the respondent's complaint. The verification of a complaint, and the affidavit for an attachment, are regarded by the statutes as distinct and separate. Acts 1867, 156, § 121, affidavit for attachment; Acts 1867, 144, § 55, verification of complaint. The law does not regard with favor pleadings of a hybrid character, like those above specified. Andrews v. Mokelumne Hill Co., 7 Cal. 334.

The affidavit should show the amount of the indebtedness upon a "contract, express or implied." It should show what is due under each contract. The respondent's affida

vit states that the indebtedness is due in part upon both. Acts of 1867, 156, § 121; Hawley v. Delmas, 4 Cal. 195. Uncertainty in the affidavit will vitiate it. Drake on Attach., § 104. This statute must be construed strictly. Roberts v. Landecker, 9 Cal. 262.

DAVIS & THOROUGHMAN, for respondent.
No brief on file.

KNOWLES, J. This cause comes to this court on appeal from an order overruling a motion to dissolve an attachment proceeding.

The first point relied upon by the appellant in support of his motion is, that the attachment proceeding is void, for the reason that in the affidavit, upon which the attachment proceeding is founded, the facts necessary for the verification of the complaint are set forth. It is contended that this alone, notwithstanding there may be sufficient set forth in the affidavit to sustain the attachment writ, is such a defect that the court should have dissolved the whole proceeding. No attachment will be dissolved for surplusage in the affidavit. The facts verifying the complaint may properly be treated as surplusage, as far as the attachment proceeding is concerned. The fact that there may be no verification to the complaint, is not such a defect as to warrant the dissolving the attachment proceeding. If the action should be dismissed, upon proper motion, for this defect, of course, the attachment proceeding, being auxiliary, would fall with it. But, because the cause of action is improperly or defectively stated in the complaint is no ground for dissolving an attachment.

The second point relied upon by the appellant is, that this affidavit having been filed to perform the double purpose of a verification to a complaint and of an affidavit, is a pleading of a hybrid character, and not favored in law. And the case of Andrews v. Mokelumne Hill Co., 7 Cal. 334, is cited to support this view. In that case a demurrer and answer were united in the same pleading, and it was not decided that, for this reason, there was neither demurrer

nor answer in the action; but the whole pleading was treated as an answer; and we hold that, in this case, we would not be justified in saying there is no affidavit for an attachment.

The third point presented by the appellant is, that the affidavit is fatally defective, because it is set forth therein that the defendant is indebted to the plaintiff in a certain amount, naming it, "upon, in part, of both an express and implied contract for the direct payment of money."

It is contended that the affidavit should state how much is due upon the express, and how much upon the implied contract. It would have been, no doubt, better practice to have stated how much was due on each contract. It is not necessary, however, for a party seeking an attachment to set out in his affidavit therefor his cause of action with any great particularity. It is sufficient, if the statute be substantially complied with. The case of Hawley v. Delmas, 4 Cal. 195, cited by the appellant, is not in point. That was a case where the grounds for the attachment were set forth in the affidavit, in the alternative. Alternative pleadings have ever been considered bad. In this case the grounds were stated conjunctively. Drake on Attachments, 104, cited by appellant to sustain the view that the attachment is void for uncertainty, because the cause of action is stated in the affidavit as above, is not authority in this case. The case there cited is one decided in the State of Louisiana, and based upon a statute which required the party seeking the attachment to state how much was due. The affidavit alleged that the defendant was indebted to the plaintiff in a certain amount, a part then due and a part to become due. The court held, very properly, that, as the statute required the applicant to state how much was due, and, as they could not tell this from the affidavit, it was fatally defective.

It will be seen by reference to that section of the attachment law, providing what must be set forth in the affidavit, to warrant the issuing the writ, that the second ground for attachment does not require that it should be set forth in

the affidavit whether the debt is due upon an express or implied contract or not. It is set forth in the affidavit that the defendant is a non-resident of the Territory. There is enough to warrant the issuing of the attachment under this head. The statute has been substantially complied with.

It is not true, as claimed by the appellant, that the attachment law should be strictly construed. Being a remedial statute, it should be liberally and beneficially expounded.

There were other points presented in the bill of exceptions, but, as they were not set forth in the brief of the appellant, they will be deemed waived.

In conclusion, we may be permitted to say, that, while we hold this affidavit to be sufficient to sustain the attachment writ, we do not regard it as a model.

It exhibits, on the part of the one who framed it, great carelessness, or a lamentable ignorance of the most common forms of judicial procedure.

The order of the court below is affirmed, with costs.

BROWN, appellant, v. GASTON AND SIMPSON GOLD AND
SILVER MINING COMPANY, respondent.

SUMMONS-proof of service-affidavits. The service of a summons should be
proved by the return of the officer, or the written acknowledgment of the
party served. It is improper practice to establish this fact by the affidavit
of persons who were absent when the service was made.
PRACTICE-default-how set aside. A default can be set aside without show-
ing excusable neglect, if the summons has been defectively served.
AGENT-declaration of ― authority. The declaration of an agent of a corpora-
tion, respecting his authority, is hearsay testimony.

Appeal from the Third District, Lewis and Clarke County.

BROWN commenced this action in December, 1867, for services in erecting a quartz mill for defendant, and to enforce his lien as a mechanic therefor.

VOL. I.-8

The sheriff served

the summons upon Rodman Carter and made his return, which is stated in the opinion of the court. The clerk of the district court entered the default of the defendant, and a judgment in favor of the plaintiff, and made a minute of these proceedings in the "minute book" of the court, which was approved and signed by MUNSON, J. On January 11, 1868, the defendant, by its attorney, moved to set aside the default and vacate the judgment. On January 30, 1868, the court, MUNSON, J., made the following order upon this motion:

"In this case I am satisfied the judgment is bad, and cannot be held upon the pleadings and papers on file in the case. After argument counsel for plaintiff asks leave to file affidavits to cure defects and show that R. Carter, upon whom service was attempted to be made, was the acting agent of said company, with power to accept service. The plaintiff has leave to file said affidavits, and defendants have like leave to file counter affidavits. Said cause is continued one week for such purpose, with stay of proceedings on said judgment for such time and until further order of this court in the premises."

The plaintiff afterward filed the affidavits of Burdick, King and Cowan, and defendant filed none. Upon reading these affidavits, the court, MUNSON, J., on February 7, 1868, made an order as follows:

"On reading and filing affidavits on behalf of plaintiff herein, under the order of this court of January 30, 1868, and the certificate of the clerk that no affidavits have been filed by the defendants under said order, and the time allowed in said order for filing affidavits herein having expired. Now, on motion of Williams & Burdick, said motion is overruled, and said judgment heretofore entered in the above action stands as the judgment of this court as rendered."

On February 11, 1868, the court, MUNSON, J., made the following order in this cause:

"The January term of this court having, on the 4th day of February, adjourned for the term, and all causes and