
    Robert B. Houston vs. E. R. Belcher et al.
    If an attachment bond given by plaintiff, on suing out the attachment, be insufficient, the substitution of another bond afterwards, under an order of the court, to which the attachment is returnable, will' not cure the defect; nor it seems will the waiver of the parties to the bond of an alleged defect in it, do so, so as to uphold the attachment.-
    Where an attachment was sued out, returnable to the March term of the circuit court, and in the recitals in the attachment bond, it was described as being returnable to the September term ; it was held, that the mistake did not destroy the validity of the obligation ; ■ nor should the attachment be quashed for that reason.
    The attachment law must be construed in the most liberal manner, for the benefit of creditors.
    In error from the circuit court of Lafayette county; Hon. Hugh R. Miller, judge.
    ‘ E. R. Belcher, of the firm of Belcher & Johnson, on the 6th day of December, A. D. 1846, sued out an attachment against Robert B. Houston, before a justice of'the peace of Lafayette county, for $ 198-94.
    The bond, dated 6th of December, 1846, recited that Belcher had obtained the attachment, “returnable to the next term of the circuit court, to be held for the county of Lafayette, at the court-house in the town of Oxford, on the 2d Monday after the 4th Monday of September next.”
    The attachment issued on the same day, and directed the sheriff to secure the attached effects, that they “may be liable to farther proceedings, thereupon according to law at a circuit court to be held at the court-house in the town of Oxford, in said county and state, on the 2d Monday after the 4th Monday in March next.”
    At the April term, 1847, there was a motion made to quash the attachment for want of a sufficient bond; and on the hearing it was proved that the magistrate, after the issuance of the attachment, had changed the word “September” to “March,” in the bond; when the surety in the attachment bond came into court, and stated that he would take no advantage of the alteration by the magistrate; the court held the bond insufficient ; but allowed the plaintiff in the attachment, to substitute another bond, which was done, and the motion overruled; a judgment was then rendered by default, with a writ of inquiry; that was executed, and the defendant who had replevied the property, sued out this writ of error from the judgment on the verdict, upon the execution of the writ of inquiry.
    
      J. and H. A. Barr, for plaintiff in error,
    Cited Ford v. Hurd, 4 S. & M. 683; How. & H. 549, sec. 13.
    
      J. F. Cushman, for defendant in error,
    Cited 7 How. Rep. 243;' 6 S, & M. 412; 2 Term Rep. 54; Jennings v. Pray, 8 Yerg. 85.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an attachment against a non-resident debtor, in the circuit court of Lafayette. A motion was made in behalf of the defendant, to quash the attachment, because the condition of the bond recited, that the attachment was returnable to the September, instead of the March term of the court. After the motion, the surety in open court acknowledged the bond, and stated he would take no advantage of the defect, The court held the bond to be insufficient, but permitted the substitution of another bond, and overruled the motion to quash. There was a judgment for the plaintiffs .below.

The statute requires the bond to be given, before the issuing of the attachment; if the original bond were insufficient, the substitution of the other was not a compliance with the statute.

Was the first bond defective 1 We think not. There was no error in the obligatory part of the bond. It was in a recital not necessary to the validity of the obligation. The attachment was returnable to a court, which had jurisdiction of the cause. Could the party who gave the bond, or his surety, evade the obligation, by alleging that the day for the appearance of the defendant was not correctly recited? We do not believe he could. We have decided that a mistake in the amount set forth in the condition of the bond, does not vacate it. The affidavit and attachment control the condition. Lawrence v. Featherstone, 10 S. & M. 347.

Were we to quash for such defects, we should not meet the design of the legislature, in directing that the act should be construed in the most liberal manner, for the benefit of creditors. This is very different from the case of Ford v. Hurd, 4 S. & M. 683, relied on in the argument.

The judgment of the court overruling the motion to quash the attachment, is affirmed, and the judgment of the court upon the merits, also affirmed.  