
    APPEAL IN ATTACHMEN-TPROCEEDINGS.
    [Common Pleas Court of Hamilton County.]
    Elmer A. McLane v. Julia Colburn.
    Decided, August, 1904.
    
      Appeal — From Judgment of a Magistrate — Determining an Attachment — May be Tried de Novo — Necessary Allegations as to “Necessaries” — Agency—Assignee of an Account Entitled to Sue in Attachment, When.
    
    1. Tlie appeal from a magistrate’s decision, under Section 6494, determining an attachment, is not necessarily retired upon the same evidence. Both parties are entitled to produce testimony de novo.
    
    
      2. An allegation of “necessaries, to-wit, groceries,” follows the language of the statute, and is a sufficient description to withstand an attach on the form of the affidavit. Whether the goods were sold for the actual necessities of the family, or for the purpose of resale and profit, is a question of fact to be determined by the weight of the evidence.
    3. An agent guaranteeing an account for his employer and being compelled by agreement to pay the same weekly, becomes in law the assignee of such account, and is entitled to sue in attachment in his own name.
    Peleger, J.
    This is a proceeding on appeal from an attachment issued by a magistrate. The affidavit alleged that the defendant was justly indebted to the plaintiff “for necessaries, to-wit, groceries,” and “that the claim is for necessaries.” The defendant filed a motion to dissolve the attachment, which was overruled by the magistrate. Three points are made:
    (1) .Joseph Fox, for the motion. George E. Mills, contra. That the proceeding in this court should be determined on the same evidence adduced before the magistrate. This would be true upon proceedings in error as provided by statute. This proceeding, however, was taken upon appeal. Section' 6494, Revised Statutes distinctly provides that the attachment proceeding may be “appealed,” and that upon such “appeal” “said court or judge shall hear and determine said motion in the same manner as though it was originally brought in said court of common pleas. ’ ’ Notwithstanding the ruling of certain other common pleas judges to the contrary, there can be no doubt in my mind about the construction of this section. Plainer language could not be used to indicate that in this court upon appeal each side should be given an opportunity to produce its evidence de novo upon the motion to dissolve the attachment.
    (2) . That it being shown upon the testimony produced in this court that the defendant kept a boarding house, that the affidavit in attachment is insufficient because it does not affirmatively show the facts tending to prove that groceries sold by the plaintiff to the defendant were necessities for family and not boarding house use. An affidavit in attachment affirmed on belief without stating facts justifying such belief is not sufficient (Dunlevy v. Schwartz, 17 O. S., 140; Garner v. White, 23 O. S., 192; Endel v. Leibrock, 33 O. S., 254). But an affidavit positively sworn to need only to be stated in the language of the statute (Hockspringer v. Ballenburg, 6 Ohio, 304; Harrison v. 
      King, 9 O. S., 388-392; Emmett v. Yeigh, 12 O. S., 335). If it were conceded for the sake of argument that the rule that justices’ proceedings being liberally construed after jurisdiction has attached (Root v. Davis, 51 O. S., 29), should not be applied to attachments on appeal, and that they should be strictly construed, we find that the statute requires only an allegation “that the claim was for necessaries.” These were the exact words used in the affidavit, followed by the words “to-wit, groceries.” The affidavit is therefore sufficient, but the proof on the motion to dissolve the attachment may establish a case not of necessaries. The law did not contemplate the purchase of groceries for reselling. Counsel insists that it being shown that the defendant kept a boarding house, and that these groceries were used as edibles for the boarders as well as for the family, they were used for the purpose of business and not home consumption (Vandhorst v. Bacon, 38 Mich., 669; Heidenheimer v. Blumenkorn, 56 Texas, 308; Mueller v. Richardson, 82 Texas, 361, and Coffey v. Wilson, 65 Iowa, 270, are cited). These are all eases under the exemption statute, and upon examination are peculiarly applicable to statutory provisions exempting “necessary provisions for family use,” excluding the selection by the debtor of anything except that which was designed by" the statute. From the evidence before the court it appears that the defendant was a householder, and that she and four other relatives helped to consume these groceries. It could not well be within the knowledge of the creditor how much of these groceries were consumed by the defendant and her relatives and how much by the boarders. After evidence submitted that she herself and her family aided in this consumption the burden is upon her to produce the evidence to meet the issue that the groceries, were not sold or used as necessity. To the extent that the groceries were so used the attachment was legal. The testimony does not aid the court in dividing it. The objection to the affidavit and the proof on the ground stated is therefore not well taken.
    (3). It is urged that the goods having been purchased from the Great China Tea Company and not from the plaintiff there is nothing owing to him, and that the plaintiff is not the real party in interest. The testimony without contradiction shows that the plaintiff was the agent of the Great China Tea Company, and as such was compelled to sell only for cash, but was permitted to credit certain persons provided he guaranteed the same, and by paying the amount of such credited goods at the end of each week, which he did. Plaintiff claims that defendant knew of this arrangement. Defendant denied it. Whether by consent or not, this arrangement amounted in law to an assignment of the account to the plaintiff. The plaintiff was therefore the assignee or owner of the account, and it was unnecessary under our present statutes that he should sue as such assignee. He had the right to bring suit in his own name, and to the attachment, because the account was for necessaries, which was not personal or peculiar to the Great China Tea Company. The right of enforcing the claim by attachment passed to the assignee.
    
      Joseph Fox, for the motion.
    
      George E. Mills, contra.
   The motion to dissolve the attachment is therefore overruled, the appeal is dismissed and the case is remanded to the justice for further proceedings. Costs on the appellant.  