
    Thomas Redus vs. William W. Wofford.
    An attachment is not vitiated, because the signature of the creditor is not placed to the affidavit of the indebtedness of the defendant and his non residence.
    Upon a judgment after inquiry of damages, in an attachment suit, it will be no objection to the validity of the proceedings'subsequent to the judgment, that the attachment was partly for unliquidated damages, and the declaration was in trover; such objections will be cured by the statute of jeofails.
    It will be no objection to a verdict and judgment, that the record does not give the names of the individuals composing the jury.
    If it appear in the record that “ a jury” passed upon the issue, it will be construed to mean twelve men duly qualified, unless the record itself show the contrary.
    Where the sheriff levies an attachment upon real estate, and returns the writ of attachment “ executed,” without setting forth the manner of its service, or showing that he pursued the directions pointed out by the statute, it will be presumed that the attachment was regularly executed.
    An attachment upon land, is a lien from the time of its levy.
    In a controversy, between a purchaser under an attachment sale and an execution sale, of real estate of the defendant in the respective proceedings, as to the title to the realty thus sold, the purchaser at the attachment sale will take it, if the levy in the attachment was anterior to the judgment under which the execution purchaser bought, even though the judgment in the attachment he junior.
    In error, from the circuit court of Tippah county.
    John Doe, on the demise of William W. Wofford, sued Richard Roe in ejectment, for lots numbered two, three, six, and seven, in block number two, and lots numbered nine and twelve in block number three, in the town of Salem, in the county of Tippah. The declaration was executed upon Miles Wilcocks, the tenant in possession. Thomas Redus claimed title to the property, and was admitted a party defendant, in lieu of the tenant in possession, and entered into the usual rule, and plead not guilty. At the March term, 1843, of the court, the casé was submitted to a jury, who found a verdict for the lessor of the plaintiff.
    
      The defendant moved for a new trial, the motion was overruled, and he filed a bill of exceptions.
    At the trial, the lessor of the plaintiff offered to the jury a deed from William Henderson, sheriff of Tippah county, to him, dated the 6th day of April, 1840, and reciting that on the 21st day of May, 1839, an attachment in favor of David A. Henden issued, against the goods and chattels, lands and tenements of James S. Shoemaker, and was on the same day levied on the lots in controversy; upon which writ of attachment a judgment was rendered in the circuit court of the county of Tippah, on the 4th day of December, 1839; that on the Sth day of January, 1840, a writ of venditioni exponas was sued out, and was levied on the land in controversy, to recover the sum of twelve hundred and fifty-four dollars and forty cents, and the costs of suit, under which writ the sheriff sold the property thus attached to Wofford, the lessor of the plaintiff. This deed was duly recorded. The. admission of this deed was objected to, the objection overruled, and the exception taken.
    The lessor of the plaintiff then offered the record of the judgment rendered in the Tippah circuit court, at the December term, 1839, in the suit commenced by attachment in favor of David A. Henden, against James S. Shoemaker, and also of the venditioni exponas under which the land was sold.
    The substance of the record was as follows :
    The affidavit with which the attachment suit commenced, was in these words:
    “ State of Mississippi, )
    
    
      Tippah County. $
    Personally appeared before me, John B. Ayres, acting justice of the peace for the county aforesaid, David A. Henden, who on oath complains that James S. Shoemaker is justly indebted to him, in the sum of fifteen hundred and fifty-four dollars sixty-two cents; and oath having been also made that the said Shoemaker so absconds, that the ordinary process of law cannot be served on him, and that this attachment is not sued out for the purpose of vexing or harassing the defendant, or other improper motive, but that justice may be done. Given under my hand and seal, this the 21st day of May, A. D. 1839.
    John B. Ayres. (Seal.)
    
      Justice of the Peace.”
    
    The bond and process were in the ordinary form, the return upon the latter was in these words :
    
      “ Come to hand 2lst May; levied on one house and lots No. 2, 3, 6, 7, block No. 2 ; Block No. 3, lots 9 and 12. Section 31, township 1, range 1, East; North-east quarter section 30 ; South-west quarter section 29 ; and North-west quarter section 32; all in the above township and range.
    William Henderson, Sheriff.
    
    By his deputy, William West.”
    An alias writ of attachment issued also to Marshall county, was levied on a negro man named Spence, and the interest of the defendant in a town in Holly Springs, and Littlebury Lashere was summoned as a garnishee.
    At the May term, 1839, the declaration was filed, and was in trover for a negro man named Peter, of the value of fifteen hundred and fifty-four dollars sixty-two cents. At this term of the court an order of publication' was made.
    At the December term, 1839, the following entry was made :
    
      “ This day came the plaintiff, by attorney, and it appearing to the satisfaction of the court that publication had been made, for six successive weeks, in the Marshall County Republican, a newspaper published in the town of Holly Springs, in the state of Mississippi, notifying the defendant of the pendency of this suit, and that unless he should appear on or before the first day of the term of this court, and plead, answer, or demur, judgment final would be rendered against him ; and the said defendant having wholly made default, it is therefore considered by the court that the plaintiff recover of the defendant judgment by default; but because the court is not advised of the amount of plaintiff’s damages, it is ordered that a jury come to inquire of and assess the sum; and thereupon came a jury, to wit, Stanley M. Hargrove, and eleven others, who being elected, tried, and sworn well and truly to inquire of and assess the sum, who for their verdict do say they find for the plaintiff, and assess his damages to the sum of twelve hundred and fifty-four dollars and forty cents ; it is therefore considered by the court that the plaintiff recover of the defendant the sum of twelve hundred and fifty-four dollars and forty cents, the damages aforesaid, in form aforesaid assessed, also the-costs in this cause expended, and that he have his execution.”
    Littlebury Lashere admitted that he owed forty-four dollars and seventy-four cents, and judgment -was given against him accordingly.
    The venditioni exponas was in the ordinary form, and the sheriff's return stated upon it a sale to William W. Wofford, of lots 2, 3, 6, and 7 in block No. 2 of the premises in controversy, for twenty-one dollars, and lots 9 and 10 to Thomas Redus, for thirty-five dollars.
    The defendant objected to the reading of the record, but the objections were overruled, and he again excepted; the objections were, the party complaining had not signed his name to the affidavit, and that the attachment was for a debt, and the declaration was in trover,
    The plaintiff farther proved by Miles Wilcox, Caleb Brock, and John A. Moorman, that the defendant Redus was in possession of the premises at the date of the commencement of the action; and here closed his proof.
    The defendant then read to the jury two deeds from the sheriff of Tippah county to himself; the one dated the 26th day of October, 1839, and the other the 26th day of September, 1840. The first deed recited that on the 28th day of May, 1839, John Crawford recovered in the circuit court of Tippah county, two judgments against James S. Shoemaker, and that on the same day, Wofford & Govan, Linchfield Burks, Caleb Brock, and John W. Gragg, all recovered judgments against Shoemaker in the same court, upon which executions had issued, been levied on lots numbered one, two, three, four, five, six, seven, and eight, in block two in the town of Salem, as the property of Shoemaker, and that they had been purchased by Thomas Redus for sixty-one dollars.
    The other deed of 26th September, 1840, recited a sale to Thomas Redus from the sheriff of Tippah under the venditioni exponas in the attachment suit of David A. Henden, of lots nine and twelve in block three in Salem, for the sum of thirty-five dollars, according to the return before referred to.
    The defendant then read the records of the two judgments before referred to in the case of John Crawford v. James S. Shoemaker ; and also the record of the judgments in favor of John W. Gragg, of Wofford & Govan, of Linchfield Burks, and of Caleb Brock, together with the various executions upon them. It is not deemed necessary further to refer to them.
    The evidence here closed.
    The court below charged the jury that the attachment was a lien upon the property levied on from the time of its return to the court.
    The defendant prosecuted this writ of error.
    
      Lucas, Lane, and Clapp, for plaintiff in error.
    1st. In relation to the affidavit see H. & H. 549, § 13 ; which makes the attachment void, if the bond “together with the affidavit of the party complaining, his agent, or attorney,” &c. be not taken and returned to the court. Is the certificate of the justice, the only evidence appearing upon the record, of any affidavit having been made, a compliance with the requisition of the statute ? Must not the affidavit be signed by “ the party complaining ” in order to make it his affidavit, and in order, should he swear falsely in this summary and harsh proceeding, to subject him to the punishments of perjury? Does not the very word itself imply a written statement signed by the party making oath ? As we think there can be no question upon these points, and as the affidavit is the very basis of the proceeding by attachment, the plaintiff in the attachment in this case having neglected this first and indispensable step in his proceeding, all of his subsequent proceedings must of necessity be void. But
    2d. Even if this certificate of the justice be such an affidavit of the party as to satisfy the statute, still it cannot be possible that it can serve as the foundation for the subsequent proceedings, under it, for the reason stated, that the affidavit was for a sum certain, a matter ex contractu, and the subsequent proceedings were upon a matter in delicto. The remedy by attachment has never been applied, and surely was never intended to apply to torts. It was only intended as a civil remedy for the collection of debts arising upon contracts express or implied. 1 Johns. Dig. 1 ; 3 Cow. R. 323; H. & H. 548, § 11.
    3d. As the affidavit was for a matter in debt, and the judgment was in trover, it was a judgment rendered against a party in his absence, without any process having been served upon him to bring him into court, and is consequently void. 3 How. 39. A sale of land under and by'virtue of an attachment which is void, passes no title to the land. 2 Yer. 484; 9 lb. 428.
    4th. The verdict rendered in the declaration upon the attachment appears from the record to have been rendered by one juror, whose name is therein mentioned, viz. “ Stanley M. Hargrove, and eleven others,” without giving the names of the others, or showing that they were men, and lawful jurors; for which reason we believe that the court was not authorized to pronounce judgment upon this verdict, and that the said judgment is void.
    5th. We also insist that the levy of the attachment was not such as to create a lien superior to the judgment liens under which the plaintiff in error purchased, because it was not made in conformity to the statute, which requires it to be made “ upon the premises, in the presence of at least one credible person.” &c. H. & H. 549, § 14.
    
      Foote and Hutchinson, for defendant in error.
    Wofford, to show title in his lessee, offered the record of a suit by attachment, Henden v. Shoemaker, which was levied on the lots in question, May 21, 1839: there was publication; a judgment by default, and inquiry of damages, with judgment, December 4,1839 ; a venditioni exponas, and a public sale to Wofford, to whom the sheriff conveyed. Those proceedings and judgment remained unreversed and unrecalled ; and when offered as evidence of title the period limited for reversing them had expired. Redus showed title under judgments of date subsequent to that of the attachment levy. The sole question now is, did the court below err in admitting as evidence the record of Henden’s suit and judgment, and in holding that the lien, by the levy of the attachment, gave date to Wofford’s title?
    It is said that the attachment was void; 1. Because Henden did not sign the affidavit; it' being signed only by the magistrate, and who took it and the bond, and issued the writ.
    
      2. Because the affidavit claims the sum due as a debt, and the writ claims part of it as debt, and part as the value of a negro.
    3. Because the declaration is in trover.
    4. Because the verdict in that case is by a jury of one named, and others mentioned only thus, “and eleven others.”
    5. There was no lien created by the levy, because the sheriff in his return, did not state that it was made upon the premises, and in presence of a credible witness.
    1st. As to the affidavit. The statutes concerning attachments (H. & H. 548-558) will show that the affidavit is defective only in form. By sec. 11, the attachment “ shall de deemed the leading process in such suit,” and issues on the oath or affirmation of the plaintiff, that the defendant hath removed, &c. By sec. 13, the magistrate is required to “ take” the bond specified, “ which bond, together with the affidavit of the party complaining, his or her agent or attorney, subscribed with his or her proper name, shall be returned by the judge or justice taking the same, to the court to which the attachment is returnable ; and every attachment issued loithout bond and affidavit, taken and returned as aforesaid, is hereby declared illegal and void, and shall be dismissed.” By sec. 19, “ no attachment shall be abated for want of form, if the essential matters be set forth.” Sec. 20, requires publication that the defendant do appear, replevy and plead in order to the liberation of the property attached. Sec. 23, allows judgment and sale of the property, if not replevied. Sec. 36, declares that the act shall be construed in the most liberal manner for the detection of fraud, advancement of justice, and benefit of creditors. Taking these in pari materia, the first impression derived is, that the remedy given is not harsh, as sometimes inappropriately called, but founded in a just and necessary municipal policy. If a debtor, residing abroad, were permitted to retain and draw on his estate located here, without remedy to his creditors, a system, fraudulent as to them, and as hurtful to the state as the absenteeism of Europe would ensue. It would be equally unjust and fraudulent to allow the debtor to remove, lurk or abscond, in evasion of common process. Hence the remedy. Experience has tested its propriety and necessity. We next perceive that the expletive, introduced in reference to the affidavit as to the plaintiff’s signature, is to be regarded only as directory to the magistrate. He is to take the affidavit and bond. It is the fact of not taking and returning such affidavit and bond that is to render ■the writ illegal and void. It is also the obvious policy of the statute to compensate for the substitution of a constructive for actual notice of suit, to require of the plaintiff the most solemn assertion of the ground and right on which he proceeds, and of leaving with the magistrate record evidence of the assertion ; so that if false in fact the injured party should have a preserved memorial of the wrong on which to obtain civil recompense, and so that the state should the more certainly punish the perjury. To the end of recompense for the injury occasioned by a wrongful proceeding the preliminary bond is required as an indispensable security to the absent defendant. The conclusion, that it is the taking and returning of an affidavit and bond that were to be regarded as essential to the validity of the process ; and that it is the absence of them, and not any technical omission of the magistrate in either, that is to vitiate the writ — stands fortified by the policy of the law, and the nature and reason of the thing. Why object to the affidavit? Is it not the official act of the magistrate, whose acts are accredited, and which, being returned, is a part of the record? Could not Shoemaker have availed of it in an action on the bond ? Could not the affiant have been convicted of perjury upon it if it had been false? If Shoemaker had pleaded in abatement the want of a sufficient affidavit, would it not have been a good replication that Henden did take the oath certified. If even a motion to quash, or a plea to abate the writ, on that defect, could have been sustained, what would have been the legal consequence? Only, that on an exception a limine litis process not void, but merely voidable, had been quashed or abated upon the informality of the affidavit. These views accord with decisions in this court. Wallis v. Wallace, 6 How. 254; Lindner v. Aaron, 6 lb. 585.
    Pending the attachment a motion to dismiss made amicus cura could not properly have been heard. Lindner v. Aaron, &c., 5 How. 588. Indeed, a motion to dismiss should have been rejected, if it had been regularly made, because the attachment did not issue without affidavit; the defect could alone have been reached by plea based on the mere technical informality ; and to have done that the defendant would have been obliged to have given bail, as a substituted security to the creditor.
    Had there been no affidavit at all, or no bond, then as against Shoemaker, or his debtor, summonecb as trustee or garnishee, the attachment would have been void ;■ and, within the time limited for the writ of error, either he or the garnishee might have reversed the judgment. The latter is a party to the suit, being indebted to the defendant, whose creditor impleads him, it is necessary, in order to prevent collusion and abuse, that he should be required, at his peril, to pay only a valid proceeding and recovery against his creditor, the principal defendant, which recovery is to precede the judgment of condemnation. For this reason he is allowed to protect himself by the assignment of errors, in the proceeding against his creditor; and being a party, he has the opportunity of contest. Berry v. Anderson, 2 How. 649.
    But, here suppose the judgment had been upon an attachment issued without affidavit taken and returned. Wofford was neither party nor privy to the proceeding. A judgment between other parties in a court having unquestionable jurisdiction of the subject in controversy had been rendered; and the sheriff, pursuant to the final process commanding him to sell the specific property, had advertised the day and place of sale; on that day Wofford appeared in the crowd of bidders at this official auction. What admonition did the law give him? Did it tell him to go to the archives of the court, and ascertain at his peril that the proceeding was regular, ab-initio? Under such unjust, impracticable requisition who would purchase at a sheriff’s sale? Who but some sordid detestable prowler could possibly have come prepared to bid? In consequence a sheriff’s auction would become no more than a licensed mode of judicial rapine. What, then, is the admonition to such purchaser? Had the court, rendering the judgment, and from which the process issued, jurisdiction over the matter in controversy? This, and this alone was the risk imposed alike on the officer making the sale, and upon his vendee; aud, in general, there is, there can be none other. The true, sure and only safe criterion in the case supposed is, whether the suit and judgment were coram non judice. If they were so, the officer was a trespasser, and his vendee took nothing; but if the court had jurisdiction, then, apart from actual knowledge of any vice in the proceeding, amounting to fraud in acting on such knowledge, the sheriff and his vendee are protected. Thus it is that a sale on a judgment that is extinct for want of revivor, on a judgment that is reversible, on one that is afterward reversed, on an execution that is in fact satisfied, on one that is afterward quashed, the public vendee is protected. Under the most favorable circumstances property sells under the public hammer at a loss; and to enhance the product of such sales, and to prevent the execution of judicial process from becoming, in effect, a scourge upon the people, there is a great policy of the law that guaranties to the public vendee a full and indisputable title, and prevents all irregularities in the proceedings and process from being impeached collaterally. In such a state of things no one but a party, or privy to the proceeding, can object to its irregularity. If he be content, the law considers that all others should be silent. Now, on the hypothesis that in Henden’s proceedings there was neither affidavit nor bond, it is not in the mouth of a stranger to the judgment to say it is void. As against Shoemaker, or his garnishee, the judgment might have been vacated, within the period limited; but even that, at the trial of the ejectment, would have been too late. At no time subsequent to Wofford’s purchase could a reversal of the judgment have affected him, because the court had jurisdiction over the subject-matter in controversy, a jurisdiction given by the constitution itself, because, as a public purchaser, he would not have been chargeable with any knowledge of the error; and because a paramount conservative policy of the law would have consecrated his title. How utterly vapid and empty, then, is the objection that though there was an affidavit taken and returned sufficient to answer all substantial purposes required, yet, possibly, if the defendant had pleaded in abatement, after giving bail, the writ might have been abated ! The doctrine here asserted has been settled by this court. Smith v. Winston, 2 How. 607, 608; Nancampen’s Lessee v. Snyder, 3 lb. 66. Starke’s Lessee v. Geldart, 4 lb. 270; Drake v. Collins, 5 lb-256 ; Mitchell v. Evans, lb. 551.
    2d. If, in the proceeding of Henden against Shoemaker, there was any variance between the demand as stated in the affidavit, and that recited in the writ, it was equally an objection a limine litis, of which Shoemaker might have availed by motion or plea; but even he, after judgment, could not have reached it by writ of error. Shroclc v. Bowden, 4 How. 426.
    3d. The declaration in that case was in trover; and what of that! Was the attachment, or the levy, to be rendered void in consequence of that departure from the cause of action intimated in the affidavit 1 That would be strange logic, and stranger law. The matter was such only as could be used defensively by a plea to the process; and Shroclc v. Bowden, is a sufficient answer. If the speculation should be made, whether a court in trover could be based on an attachment, we answer, that there are no reasons, except such as relate to the formal division of actions, to favor the cavil; there is no consideration pertaining to moral principle, or inherent in the transaction to sustain it. If I hire your slave at a stipulated price, and engage to return him, but elope without paying you the hire or restoring your cslave, I am technically debtor for the hire, and technically liable for the value of the slave — in conscience I am debtor for both. According to. common sense, and practical, unsophisticated justice, the whole is a debt; and so, doubtless, Henden considered it when he made the affidavit. But, on a liberal construction of the attachment law a debt, whether liquidated or unliquidated, may be embraced. At any rate the objection lay in demurrer, which likewise is an exception a limine litis, and not to the merits. The constitution gave to the court jurisdiction, as well of debt as of detinue and trover. The attachment was the leading process. If the defendant had pleaded to the action, the variance or defect would have been waived. Not having pleaded, the judgment closed the controversy even as to him, and became irreversible and resjudicatum. Shroclc v. Bowden, supra. In Lindner v. Aaron, Cyc., supra, Mr. Justice Trotter said, 11 But there was no plea; nor indeed had the defendants taken any of the steps necessary to entitle them to plead. The objection, therefore, came in the shape of a suggestion by counsel, that the proceeding was coram non judice. But the court will not decide that it has no jurisdiction of the cause on a ground which might be sufficient to avoid it, if it were pleaded. To do so would be to. destroy the established distinction between proceedings voidable merely, and such as are absolutely void.”'
    4th. The fourth objection to the record, offered as a muniment of title, is that the names of eleven of the jurors, who assessed the damages, are not given. The record shows that a jury of twelve were sworn, &c. That, it is believed, would have been sufficient, if the point had been raised in error by the defendant in the case; but whether it would or not, the circuit court, in the ejectment, did not sit to revise the errors in another case, collaterally, after the writ of error had been barred.
    5th. Lastly, it is urged that the officer levying the attachment, should have returned specially that he went upon the premises, and in the presence of at least one credible witness, took the lots. The statute, indeed, directed him as to this, the mode of levy ; but did not render his act void for not returning specially that he observed its direction. He returned simply, that pursuant to the writ he had levied on the. lots. That was a general return of a sworn officer, whose act the court will presume was in conformity to the statute. Smith v. Cohea, 3 How. 39; Drake v. Collins, 5 lb. 256.
    From these views and authorities it is believed the judgment below will be affirmed. Indeed, we cannot perceive how the record offered as evidence could have been excluded, but upon some principle unknown to jurisprudence, and directly subversive of some of the best established and most indispensable canons of civil right.
   Mr. Justice Thacher,

delivered the opinion of the court.

Action of ejectment from Tippah county circuit court.

Wofford claimed title by purchase of the land under execution growing out of a judgment upon a suit instituted by attachment, and Redus claimed by purchase under execution growing out of judgment against the same defendant subsequent to levy of the attachment.

It is insisted that the court below erred in admitting in evidence the record of the judgment commenced by attachment.

Among the objections raised to the judgment in the suit by attachment, and on account of which it is held to be void, is that the affidavit in the attachment was not signed by the plaintiff therein. The statute, H. & H. 548, sec. 11, requires that the creditor shall make complaint on oath or affirmation of the facts necessary to authorize the issuance of the writ. The evidence of this having been done, is the certificate of the justice of the peace or other officer named in the statute, and the signature of the creditor attached to the affidavit would afford no proof of that fact, nor is it required by law as a necessary feature of the affidavit.

The objections that the writ of attachment runs partly for unliquidated damages, and that the declaration filed thereon was in trover, though they might have availed, had they been claimed at a proper period and in a proper manner during the progress of that suit, are cured, however, by the statute of jeofails, H. & H. 591, sec. 11, which, upon a judgment after inquiry of damages, and which occurred in this case, corrects any mistake or misconception of the form of action, and any defect in the declaration, either of form or substance, that might have been taken advantage of by a demurrer.

The names of the individuals composing the jury are not given in the record, but the record shows that the number required by law passed upon the issue. The term “jury” is a legal technical word, and will be construed to mean, when used in a record, twelve men duly qualified, unless the record itself shows the contrary.

It is objected that the mode in which the levy of the attachment was made, does not appear to have pursued the directions pointed out to the sheriff in such cases by the statute. The return on the attachment writ does not set forth the manner of its service, and therefore this court cannot question its legality. It shows a levy on the land by a sworn officer, which must be presumed to have been done correctly. Smith v. Cohea, 3 How. 35; Drake, et al v. Collins, 5 How. 253.

The attachment was a lien upon the land from the time of its levy. The statute, H. & H. 552, sec. 23, provides that upon a judgment in favor of an attaching creditor, the estate attached, and not replevied, shall be sold for the satisfaction of the judgment in the same manner as such property taken in execution upon a writ of fieri facias ; and in cases of judgment by default, execution shall issue only against the goods and chattels, lands and tenements on which the attachment may have been served. H. & H. 555, sec. 30. The effect of a judgment in attachment is not to create a general lien upon the property of the defendant. It effects a condemnation of the property attached for the satisfaction^ the plaintiff's debt, and it relates back to the levy. It has, moreover, been decided by this court in the case of Oldham v. Ledbetter, 1 How. 48, that an attachment being a proceeding in rem, operates, by the levy, an assignment in law, of choses in action and a transfer of chattels and lands to the creditor, and that the sale is not made for the purpose of changing the ownership, but to ascertain the value.

From the foregoing views, we are inclined to deem the judgment of the court below to be correct.

Judgment affirmed.

Mr. Justice Clayton, having been counsel in this case, gave no opinion.  