
    The Commercial Bank of Manchester vs. Henry J. Ullman et al.
    An affidavit for an attachment under the law of 1844, which stated that the debtors “are about removing from the state, or are so concealing their effects as to defeat the creditor’s claim,” is sufficient to uphold the attachment ; the verb ‘ removing,’ according to the true grammatical construction of the sentence, having relation to 1 the effects ’ and not to the persons of the debtor; and even if it related to the persons, it seems the affidavit would not be vitiated by having more in it than was sufficient.
    Where to a writ of attachment, the magistrate had appended a scroll with the word ‘ seal ’ written in it, the writ was held to be sufficiently sealed, though nothing was said about the seal in the body of the writ.
    The affidavit in an attachment, stated that Ullman.and Hausman were indebted, &c. ; the bond recited that Ullman and H. Hausman were indebted, &c., and the declaration declared against Henry Ullman and William H. Hausman ; it was held, that the variance was immaterial.
    In error from the circuit court of Yazoo county; Hon. Morgan L. Fitch, judge.
    The Commercial Bank of Manchester, by its president, made oath before a justice of the peace, that “Messrs. Ullman & Hausman, partners in trade, in the town of Yazoo city, are justly indebted to the said Commercial Bank of Manchester, in the sum of two hundred and thirty-three dollars and thirty-three cents, and that they have been informed, and have good reason to believe, and do verily believe, that the said Ullman & Hausman, are about removing from the state, or are so concealing their effects as to defeat their claim.”
    The president of the bank, executed bond, payable to Ull-man & H. Hausman, conditioned in the ordinary way.
    The writ of attachment was against Ullman & Hausman ; and stated that the bank had made oath that Ullman & H. Hausman were indebted, &c. It was otherwise in the ordinary form in the body, and concluded in this way, viz.: “ Witness, R. Eaton Keys, Justice of the Peace, the fifth day of March, A. D., 1845. R. Eaton Keys, J. P.” [Seal.]
    The attachment was duly levied, and Ullman & Hausman replevied the goods attached; and at the May term, 1845 of the circuit court, the bank filed her declaration in assumpsit, against Henry J. Ullman and William H. Hausman.
    At the same term, the defendants moved to quash the attachment, because the bond and affidavit did not conform to the law. The motion was sustained and the bank sued out this writ of error.
    
      W. R. Miles, for plaintiff in error.
    The objection taken in the court below to the affidavit, was that it was in the alternative, and therefore made out too strong a case. And the court held in its opinion, that whilst a removal from the state, or a concealment of his effects by a debtor charged singly in the affidavit, would be sufficient ground for an attachment to issue; yet if both charges were combined, or if they were charged in the disjunctive, it would be insufficient. Such I do not think to be the spirit of the act. See Acts of 1844, 125-6.
    
      N. G. and & E. Nye, for defendants in error.
    1. The attachment is for an amount greater than a justice of the peace can take cognizance of, and consequently made returnable to the circuit court; but instead of being tested in the name of the judge of the tenth judicial district, it is in the name of the justice of the peace who issued it. By our statute all process shall be tested in the name of the presiding judge, and must be under seal; though there is a scroll annexed to the justice’s name, it nowhere appears that it was his intention to seal it. How. & Hutch. 576. The statute is peremptory that the justice granting an attachment shall sign and seal it. How. & Hutch. 557. An attachment not under seal, is not merely voidable but absolutely void. Walker v. Winn, 3 Yerg. 72 ; McCullough v. Foster, 4 Yerg. 162.
    2. A signature like that of the justice who granted this attachment, viz., witness my hand, &c., and annexing a scroll, will not make it a sealed instrument. Bohannon v. Hough, Walk. R. 468.
    3. There is a variance between the affidavit, the bond, the attachment and declaration, so great, that they cannot be identified as parts of the same case; leaving it a matter of considerable doubt whether the record brought up is the entire record of one case, or portions of records in different cases; they certainly bear no mark of similarity as to parties and amounts sufficient to identify them as portions of the same case.
    4. It is a fatal objection to an attachment that it is founded on an affidavit, stating different causes for suing it out; one distinct, substantive fact must be sworn to, and the party must rely on that alone, and cannot state additional causes in the same affidavit. 9 Yerg. 428, Hard. 65 ; lb. 342.
   Mr. Justice Thachee

delivered the opinion of the court.

A motion to quash the attachment in this case, because the attachment, bond, and affidavit, do not correspond to the law, was sustained in the circuit court.

The attachment was sued out under the act of 1844, ch. 15, entitled an act to extend the remedy by attachment and garnishment.” This act gives the remedy, as well as in other circumstances, when a debtor is concealing or about removing his effects so that the claim of a creditor will be defeated.

The language of the affidavit, in the present case, is, that the debtors are about removing from the state, or are so concealing their effects as to defeat the creditor’s claim.” In grammatical construction, the removal here has relation to the effects, and not to the debtors. The term effects is the object of the verb to remove. The affidavit is good and sufficient, with both or either of the allegations, for it might be impossible for a creditor to swear positively to either, while he might be apprized that one or the other cause in fact existed. But even if a different construction be given to this affidavit, and it be admitted that the removal has relation to the debtors, and not to the effects, we are not prepared to say that such an affidavit would vitiate the attachment. In suing out an attachment, the affidavit must contain a sufficient allegation, but should it contain more than sufficient, it would hardly be fatal on that account.

In reference to the objection that the writ of attachment is not under the seal of the justice of the peace issuing it, it needs only be said that it has a scroll with the word “ seal” written therein, in the locus sigilli. This circumstance, under one decision in Whittington v. Clarke, 8 S. & M. 480, was enough to establish the writ as being under seal.

The objection as to the variance between the declaration and bond is immaterial.

Judgment reversed, and cause remanded for further proceedings.  