94 the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property.9 III. That the said attachment is not sought, and the said action is not prosecuted, to hinder, delay, or defraud any creditor or creditors of the said defendant. [JURAT.] [SIGNATURE.] 84105. The same- when debt originally secured. If the debt was originally secured by a mortgage, lien, or pledge, after the averment" that the contract was made and is payable in this state," add "that the payment of the same was originally secured by a chattel mortgage upon the said furniture so sold by the plaintiff to the defendant as above stated, but that the said furniture was afterwards, to-wit, on or about the ..... day of ........ 18.., without any act or fault of the plaintiff, totally destroyed by fire." If the debt was originally secured by a mortgage or lien upon real estate, the affidavit must show that fact, giving such description of the lien, as well as of the real estate, as will be sufficient for identification, as well as to show that it was of such character as could be lost or destroyed in the manner stated in the affidavit. These facts should be shown not merely stated in the language of the statute. 4106. Affidavit against resident. The affidavit for an attachment against a resident must state: 1. That the defendant is indebted to the plaintiff (specifying the amount over and above all legal set-offs cr counterclaims), upon a contract, express or implied, for the direct payment of money, and that such contract was made or is payable in this state, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or if originally so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless; 2. That the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor of the defendant.95 94 An affidavit stating conjunctively that the amount of indebtedness is "over and above all legal set-offs and counterclaims," is a sufficient compliance with the requirement of the statute that the indebtedness must be shown to be "over and above all legal setoffs or counterclaims." O'Conor v. Roark, 108 Cal. 173. 95 Cal. Code Civ. Pro., § 538. An affidavit showing that indebted § 4107. Before whom sworn. It is not a ground for vacating an attachment that the affidavit on which it was obtained was sworn to before a commissioner in another state, but that no certificate of the secretary of state was obtained, as required by the law of that state. The omission may be supplied.96 4107a. Affidavit-sufficiency of-in general. The affidavit is fundamental, and is the foundation for the jurisdiction of the court in attachment proceedings. And no writ of attachment should issue without an affidavit containing one or more of the prescribed requisites, as set forth in the statute regulating attachments.97 In the absence of any statutory provisions for the appointment of agents or attorneys for the purpose, any one authorized by the plaintiff to collect may make the affidavit as one of the incidents of his authority.98 And an affidavit made by the plaintiff's agent, in the form prescribed by statute, sworn to before a notary public, is sufficient, and not open to attack for not disclosing who the plaintiff is, or that the affiant is the agent of the plaintiff.99 Nor need the affidavit for attachment state whether its averments are based upon direct knowledge, or upon information and belief, and, if the facts are stated positively, it will be implied that they were within affiant's knowledge.100 An affidavit in attachment which states the county but omits the letters "ss." is not defective.101 So, an affidavit which states the grounds for attachment that "the defendant has disposed of and concealed and is about to assign, dispose of and conceal his property with intent to defraud his creditors" is sufficient, and is not bad as being stated conjunctively.102 7103 But the affidavit is rendered fatally defective by an alternative statement therein to the effect that the payment ness was secured by mortgage, and stating the general conclusion that "said mortgage, without any act of plaintiff, or the person to whom the security was given, became valueless," is sufficient to justify the clerk in issuing the writ. Barbieri v. Ramelli, 84 Cal. 174. 96 Lawton v. Kiel, 51 Barb. 30. 97 Deering v. Warren, 1 S. Dak. 35. 98 Id. 99 Robinson v. Hesser, 4 N. Mex. 144; see, also, Simpson v. McCarty, 78 Cal. 175; 12 Am. St. Rep. 37. 100 Simpson v. McCarty, 78 Cal. 175; 12 Am. St. Rep. 37; see Ross v. Steen, 20 Fla. 443; Clowser v. Hall, 80 Va. 864. 101 Mercantile Co. v. Glenn, 6 Utah, 139. 102 Id.; and see O'Conor v. Roark, 108 Cal. 173. of the contract on which the action is brought has not been secured by any mortgage upon real or personal property, or, if originally so secured, that such security has become valueless without any act of the plaintiff.103 If an affidavit in attachment is defective in not stating all the statute requiries, or if it is false, the court has no jurisdiction to issue the attachment.104 4108. Bona fide existing debt. The fact that an affidavit for an attachment omits to aver that the sum for which the writ is asked is "an actual, bona fide, existing debt, due and owing from the defendant to the plaintiff, and that the attachment is not sought and the action is not prosecuted to hinder, delay, or defraud any creditor or creditors of the debtor," does not render the attachment issued a nullity as against subsequent attaching creditors. 105 An appeal bond is a contract for the direct payment of money, within the meaning of the statute.106 So is a bail bond in a criminal case.107 So is the official bond of a county treasurer.1 "Direct" implies that the debt must be liquidated.109 108 4109. Contract, how stated — requisites of affidavit. An affidavit alleging the contract to be "express or implied" is insufficient.110 The affidavit need not state the probative facts necessary to establish the ultimate facts required by the statute to be shown as the basis of the writ.111 An affidavit which alleges that the plaintiff's demand is on a contract for the direct payment of money, with the further allegation of how the debts accrued, sufficiently states the nature of the demand.112 It is the duty of the clerk to issue the writ upon the plaintiff filing an affidavit stating the ultimate facts in the 103 Winters v. Pearson, 72 Cal. 553; but see Penniman v. Dantel, 90 N. C. 154. 104 Murphy v. Montandon, 2 Idaho, 1048; 35 Am. St. Rep. 279; and see Carlisle v. Gunn, 68 Miss. 243; Endel v. Leibrock, 33 Ohio St. 254; Biddle v. Black, 99 Penn. St. 380. 105 Fridenberg v. Pierson, 18 Cal. 152; 79 Am. Dec. 162. 106 Hathaway v. Davis, 33 Cal. 161. 107 S. F. v. Brader, 50 Cal. 506. 108 Monterey Co. v. McKee, 51 Cal. 275. 109 Hathaway v. Davis, 33 Cal. 161. 110 Hawley v. Delmas, 4 Cel. 195. 111 Wheeler v. Farmer, 38 Cal. 215. 112 Bowers v. London Bank, 3 West Coast Rep. 255. Vol. II-125 language of the statute.113 The clerk performs only a ministerial duty in obedience to a plain statutory mandate.11 An affidavit to obtain the issue of an attachment under the Code of Civil Procedure need not allege that the defendants have property within the state, nor that the summons has been issued. It is sufficient if the summons is issued when the attachment is obtained, and if both are delivered to the sheriff together.115 It is settled, in Ohio, that where the ground relied on is stated substantially in the language of the statute, and sworn to positively, this is sufficient to authorize the allowance of the attachment by the judge.116 4110. Affidavit for attachment against nonresident. [TITLE.] A. B., being duly sworn, deposes and says as follows: II. The defendant in the said action is indebted to the said plaintiff in the sum of .... ... dollars, over and above all legal set-offs and counterclaims, and the said defendant is a nonresident of this state. III. The sum for which the attachment is asked in the said action, that is to say, the amount of indebtedness which is above stated, is an actual, bona fide, existing debt, due and owing from 113 Id. It is not necessary that an affidavit for attachment should state whether the contract for the payment of money is express or implied. An affidavit showing that the defendants are indebted to the plaintiff in a special sum upon a contract for the direct payment of money is sufficient. Flagg v. Dare, 107 Cal. 482; see, also, Simpson v. McCarty, 78 Cal. 172; 12 Am. St. Rep. 37; Norcross V. Nunan, 61 Cal. 640; Dunn v. Mackey, 80 id. 104; Donnelly v. Strueven, 63 id. 182. The same particularity of statement is not required in an affidavit for attachment that is required in a pleading. Bank of California v. Boyd, 86 Cal. 386; O'Conor v. Roark, 108 id. 173. An affidavit which fails, however, to state definitely the nature of the demand, is defective, though not so defective as to render the proceedings thereunder absolutely void because of the provision of the Code permitting the amendment thereof. Leppel v. Beck, 2 Col. App. 390. 114 Bowers v. London Bank, 3 West Coast Rep. 255; McCusker v. Walker, 77 Cal. 208; see, also, Weaver v. Hayward, 41 id. 118. 115 Lawton v. Kiel, 51 Barb. 30. 116 Harrison v. King, 9 Ohio St. 388; Gans v. Thompson, 11 id 579; Creasser v. Young, 31 Ohio St. 57. the said defendant to the said plaintiff, and the said attachment is not sought and the said action is not prosecuted to hinder, delay, or defraud any creditor or creditors of the said defendant. 1. That the defend § 4111. Affidavit against nonresident. ant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal set-offs or counterclaims), and that the defendant is a nonresident of the state; and, 2. That the attachment is not sought and the action is not prosecuted to hinder, delay, or defraud any creditor of the defendant.117 § 4112. Undertaking on attachment. [TITLE.] Form No. 996. ....... I. Whereas, the above-named plaintiff has commenced or is about to commence an action in the Superior Court of the state of in and for the county of ... against the above-named defendant, upon a contract for the direct payment of money, claiming that there is due to the said plaintiff from the said defendant the sum of .... dollars, besides interest, and he is about to apply for an attachment against the property of the said defendant as security for the satisfaction of any judgment that may be recovered therein. II. Now, therefore, we, the undersigned, residents and householders of the county of in consideration of the premises, and of the issuing of said attachment, do jointly and severally undertake, in the sum of dollars, and promise to the effect that if the said defendant recover judgment in said action the said plaintiff will pay all costs that may be awarded to the said defendant, and all damages which he may sustain by reason of the said attachment, not exceeding the sum of .. dollars. L. M. and N. O., the sureties whose names are subscribed to the above undertaking, being severally duly sworn, each for himself says: 117 Cal. Code Civ. Pro., § 538. An affidavit for attachment against a nonresident need not state that the payment of the claim is not secured by mortgage, lien, or pledge, or that the claim is upon a contract. That the action is upon a contract, express or implied, |