
    James Sleet v. Bell Williams.
    1. In an action founded on contract, an affidavit filed as the basis of an attachment is sufficient, if it contains all the elements required by the statute except that it states positively the amount “ due” upon the plaintiff’s claim, instead of showing, as the statute requires, the amount he “believes he ought to recover.”
    2. Where affidavits read on the hearing of a motion are copied into the record by the clerk, without any bill of exceptions taken for that purpose, they cannot be considered, on proceedings in error.
    Error to the court of common pleas of Hamilton county. Eeserved in the district court.
    The plaintiff seeks to reverse an order of the common pleas discharging an attachment. The motion to discharge the attachment appears by the record to have been placed both upon the ground of the insufficiency, and also of the falsity, of the affidavit upon which the order of attachment had been issued.
    On heai’ing of the motion affidavits were read to the court touching the truth or falsehood of the affidavit. These affidavits are copied by the clerk into the record, but there is no bill of exceptions setting them forth, or showing any finding of the court as to the truth or falsity of the affidavit sought to be impeached ; and the court places its order discharging the attachment upon the ground of the insufficiency of that affidavit.
    The affidavit sets forth, in proper form, two of the statutory grounds for the attachment, namely, that the defendant was about to dispose of her property with intent to defraud her creditors, and that she fraudulently contracted the debt. It also properly sets forth the nature of the plaintiff’s claim, as being $1,189.00 now clue aud payable to plaintiff from defendant on a stated account for goods sold and delivered by plaintiff to defendant. But instead of “ showing,” in the language of the statute, (Code, sec. 192) that the claim “is just, and the amount which the affiant believes the plaintiff ought to recover,” the affidavit reads : “and the said James Sleet further says the said claim is just, and that there is now due him on said account from said defendant the sum of $1,189.00.”
    
      Bracee & Hash for plaintiff in error :
    The affidavit for the attachment is sufficient. It is a substantial, if not a literal compliance with the statute. Code, sec. 192. The affiant knew the exact amount due, and made his affidavit accordingly. Knowledge includes belief, just as the greater includes the less. Nash’s Pl. & Pr. 408, 421.
    The exact language of the statute is not required to be used in the affidavit. Caston v. Paige, 9 Ohio St. 397 ; Emmit v. Yeiqh, 12 Ohio St. 335 ; Harrison v. King, 9 Ohio St. 388.
    The statutes of Indiana and Kentucky, as to affidavits in attachments, are the same precisely as the laws of Ohio. (2 Indiana stat. by G. & H. 139, and section 222, Code of Kentucky,) and the supreme court of these States have repeatedly held affidavits similar to the one in this case to be sufficient. Morrison v. Murphy, 8 Ind. 272 ; Willets v. Ridgway, 9 Ind. 367 ; Dunn v. Crocker, 22 Ind. 324 ; Burnam v. Romans, 2 Bush, 191; Scott v. Doneghy, 17 B. Mon. 324.
    The court will disregard any error which does not affect the substantial rights of the adverse party. Code, sec. 138.
    
      W. (& J- W. Obey for defendant in error :
    The common pleas properly discharged the attachment, because the affidavit does not state the amount which the affiant believed he ought to recover, as required by the Code, section 192,
    
      A claim may be truly set forth and be just, and yet the plaintiff may not be entitled to recover on it, nor even believe that he is entitled to recover, because of some set-off or counter-claim. The plaintiff is not bound to set up his counter-claim or set-off. Code, section 95. Much less is the plaintiff bound to anticipate it in his petition. But with respect to the attachment it is different; and hence the provision that the plaintiff cannot obtain an attachment for a larger sum than be believes he ought to recover. Code, section 192.
    But even if no other reason could be given why the affidavit ought to contain the matter omitted than that it is required by the statute, that is sufficient. Price v. Smith, 13 La. An. 526, 7; Taylor v. Smith, 17 B. Mon. 536, 542; Worthington v. Cary, 1 Metc. 470 ; 9 Ohio St. 395 ; Drake on Attachment, §§ 84, 95 ; Dunlevy v. Schartz, 17 Ohio St. 740 ; Herf v. Schultz, 10 Ohio, 263, 266 ; Spice v. Steinruck, 14 Ohio St. 214; Blakely v. Bird, 12 Iowa, 601 ; Lathrop v. Snyder, 16 Wis. 293 ; In re Hollingshead, 6 Wend. 553 ; Smith v. Luce, 14 Wend, 237 ; Ackroyd v. Ackroyd, How. Pr. 93 ; S. C. 11 Abbott, 345; 22 How. Pr. 272.
    The supplemental or additional affidavits offered on the hearing of the motion to discharge the attachment, are not before this court, because they were not made a part of the record by bill of exceptions. Baldwin v. The State, 6 Ohio, 15 ; Acheson v. Western Reserve Bank, 8 Ohio, 117 ; Hicks v. Person, 19 Ohio, 426 ; Wells v. Martin, 1 Ohio St. 386 ; Busby v. Finn, 1 Ohio St. 409; Hallam v. Jacks, 11 Ohio St. 692.
    Nor will this court assume that the record contains all the affidavits offered, but, on the contrary, proceeding on the principle that every presumption will be made in favor of the action of the common pleas, this court will presume that affidavits were offered which fully justified the action of that court. Wilson v. The State, 2 Ohio St. 102; Id. Churchill, 14 Ohio St. 372.
    It is stated in the record that the attachment was discharged because of the defective affidavits. But the reason given for a decision is of no importance in such a case. Affidavits were used on the hearing, and they may have fully justified the discharge.
    Besides, “a court of error, before reversing the decision of an inferior court upon a question of fact involved in a motion to discharge an attachment, should be satisfied that it was clearly erroneous.” Harrison v. King, 9 Ohio St. 388.
    It is enacted in the code, we know, that its provisions shall be liberally construed, (sec. 2); but this is to “assist the parties in obtaining justice;” and in proceedings to obtain the benefit of these extraordinary remedies, the courts have not deemed it proper to dispense with the steps pointed out in the act, as the condition upon which these remedies are granted. They are construed with the same strictness with which they were regarded prior to the time they were embodied in a code. 14 Ohio St. 222.
    
      Pede & Oraiuford, also for defendant in error:
    The'statement that a specified sum is now due from the defendant to the plaintiff on a certain account is not equivalent to stating that the plaintiff believes he ought to recover that sum. The words of the affidavit do not exclude the idea of a set-off’ or counter-claim. Under the present affidavit the plaintiff could not be successfully indicted for perjury, if it were proved that he was perfectly well aware that he was entitled to recover nothing from the defendant, because of a set-off against his “ account stated.”
    The following authorities are cited : Emmit v. Yeigh, 12 Ohio St. 335 ; Lathrop v. Snyder, 16 Wis. 293; Friedlander v. Myers, 2 La. An. 920; Monroe v. Cocke, 2 Cranch, C. C. 465 ; Bowen v. Slocum, 17 Wis. 181; 17 B. Mon. 536 ; 18 Wend. 611; 7 Barb. 253 ; 21 Ill. 80; 1 Metc. 42 ; 5 Mich. 98; Drake on Attachment, § 106; 14 Wend. 237; 4 Hill, 598 ; 7 Hill, 187; 1 Ill. 222; 6 Gill & Johnson, 345; 4 Yerger, 162; 15 Wis. 61.
   Welch, J.

We think the court erred in holding this affidavit insufficient. It substantially conforms to the statutory requisitions. These requisitions are, not that the affidavit shall be in any prescribed form of words, but that it shall be an affidavit “showing” the existence of certain facts. None of the statutory requirements are wanting in this affidavit, unless it be the statement of the plaintiff’s belief that he ought to recover the sum of $1,189.00. In place of this, we have the positive statement that that sum is due to him from the defendant, upon the claim. We think the latter statement fairly includes and implies the former. One can hardly have the knowledge that money is justly due to him upon a contract, without the belief that he ought to recover it from the debtor.

But counsel say that there was no error in the order of the court discharging the attachment, because, however perfect in form the affidavit may be, it is shown to be false. The answer to this is, that there is no bill of exceptions in the case, setting forth the affidavits read in evidence, or the finding of the court thereon. We cannot notice these affidavits. They are merely introduced into the record by the clerk. They may constitute all the evidence heard upon the motion, and they may, so far as we can officially know, constitute only a part of it.

Judgment reversed, and cause remanded for further proceedings.

Scott, C. J., and White, Day and McIlvaine, JJ., concurred.  