
    Isaac B. Lovelady and Elizabeth Lovelady vs. Daniel Harkins and Nancy Harkins.
    An affidavit to procure an attachment, stating that the defendants “ are concealing their effects so that the ordinary process of the law cannot be served on them, and that the claim against them will be defeated ” ■ &c., is sufficient.
    If the process in attachment, by mistake of the justice, recited that the plaintiffs were concealing their effects, &c., instead of the defendants, and the bond and affidavit contained correct recitals, the court will look to the whole record, and not construe it so as to defeat its own end.
    In error, from the circuit court of Lafayette county; Hon. James M. Howry, judge.
    Isaac B. Lovelady and Elizabeth Lovelady made oath before a justice of the peace of Lafayette county, that “ Daniel Harkins and Nancy Harkins were justly indebted to them in the sum of three hundred dollars or thereabouts, except some credits that belong to the note, which they do not recollect; and that they are informed, and believe said Daniel and Nancy Harkins are concealing their effects, so that the ordinary process of law cannot be served on them, and that their claim against them will be defeated, and this they believe to be true.”
    Bond having been duly executed, the justice issued an attachment, which was in the ordinary form, and was levied on a negro slave, as the property of the defendants therein, who gave a bond according to the statute to abide by the order of the court in the premises. At the return term of the court, the defendants moved to quash the attachment: 1st, because of a defect in the affidavit; the affiant swearing that the defendants were concealing their effects so that the ordinary process of law could not be served on them, and not that their claim against them would be defeated thereby. 2d. The facts alleged in the affidavit were not stated to be true from the personal knowledge of the affiant, or that he is informed, or believes that they are true. 3d, The bond was defective because not joint. 4th, The writ of attachment was variant from the affidavit, in reciting that the plaintiffs were concealing, &c. The court below sustained the motion and quashed the attachment on the fourth ground alleged.
    The plaintiffs excepted to the decision quashing the attachment, and in their bill of exceptions recite that it appeared in proof on the trial of the motion, that the attachment when issued and served, recited that the plaintiffs were concealing their effects &c.; and that after the service of the attachment, and before it was returned to the court, the justice who issued it, struck out the names of the plaintiffs, and inserted those of the defendants; so that the attachment on its face read properly. The plaintiffs prosecute this writ of error.
    
      J. F. Cushman, for plaintiffs in error.
    It is objected in this case that the affidavit of appellants is insufficient to sustain the attachment, because it does not pursue the exact words of either the attachment act of 1822 or 1844. The attachment act of 1844 is a supplement to the act of 1822, and thereby made a part of it; it is an extension of the judicial remedy by attachment, to cases not before embraced in the attachment act of our state. If then, the affidavit of appellants contains a sufficient recital of the substance of the two acts, which are really in contemplation of law, but one entire act, that is all that is essential, which it certainly does, for it was not required, even previous to the passage of the act of 1844, to incorporate in the affidavit for an attachment, more than the essential requisites of the statute; and it has been decided that it is not necessary to incorporate in the affidavit the exact words of the statute. See Willis v. Wallace, 6 How. R. 254.
    The other point relied on by appellees, and upon which the court below sustained the motion to quash, is one of still smaller consequence, and indeed scarcely requires more than to call the attention of the court to it to secure a reversal of the judgment below.
    The omission of a proper name, if such omission existed, in the recital part of the attachment, after it had been properly inserted several times preceding and several times after, I do not believe can be regarded under our statute as a substantial defect. The statute is in these words : “ No attachment shall abate for want of form, if the essential matters expressed in the foregoing precedents be set forth.” This I conceive was done ; but if the court should think differently, certainly the justice of the peace had a right to correct his own clerical error, for this can be regarded as nothing more in law. See Park v. Crutcher, 7 How. Rep. 243.
    
      Taliaferro and Hayes, for defendants in error.
    The attachment act of 1822, H. & H. 548, enables any creditor to sue out an attachment, by his making oath to the amount of his debt or demand; and that his debtor has removed, or is removing out of the state, so that the ordinary process of law cannot be served on him.
    By the session acts- of 1844, p. 126, the remedy by attachment is extended to all cases where an affirmation is made, that the debtors have concealed or are concealing their effects, so that the claim of the attaching creditors will be defeated; or cannot be made. And the facts upon which the application for attachment is predicated must be stated in the affidavit to be within the personal knowledge of the applicant, or that he is informed and believes the facts stated to be true. The affidavit in this case is neither in accordance to the act of 1844, or the act of 1822.
    The act of 1844, on which the affidavit in this ease must be presumed to be based, gives no right to the issuance of an attachment on the oath of a creditor, that his debtor is concealing his effects, so that the ordinary process of law cannot be served on him. If the object of an attachment be to secure the personal attendance of the debtor at the term of the court to which the writ of attachment is returnable, the concealing by the debtor of his effects would not prevent the service on him of the ordinary process of law. If then it be true, that the debtors are concealing their effects, yet their appearance at the proper term of the court may be effected by the ordinary process of summons, as the debtors have not removed and are not removing out of the state.
    The affidavit further states “ and that their claim will be defeated.” This certainly is an independent and distinct averment, and there is nothing showing its relation to “concealing their effects.” The act requires that affidavit should be made that the debtors are concealing their effects, so that the claim of the attaching creditors will be defeated, or cannot be made. The mere concealing by the debtors of their effects, is not sufficient to justify an attachment; the claim of the creditors, according to their belief, must be about to be defeated thereby, or cannot be made.
    The form of attachment prescribed by the act, makes it incumbent on the officer issuing the attachment, to recite the affidavit as made by the creditors. The recital in this case is, “ That the attaching creditors are concealing their effects.” Is it essential that this recital should be made 1 It must be so, as it is one of the matters recited in the form prescribed to prevent errors in issuing attachments. As well may be omitted the amount and character of the creditor’s demand. The debtors ought to be apprized by the writ of attachment of all the essential matters contained in the affidavit of the creditors; it is therefore necessary that such recital be correct, and not vary from the affidavit. The bill of exceptions taken by the plaintiffs in error in this case shows that the writ of attachment was issued and levied with the recital; “ that the plaintiffs are concealing their effects,” and was changed by the officer issuing the attachment after issuance and levy, to read that the “ defendants are concealing their effects.” This the justice of the peace clearly had no right to do.
   Mr. Justice Clayton

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Lafayette county, quashing an attachment sued out in the cause.

We have examined the objections, and do not find any of them sufficient to justify that measure. The order was made upon the fourth objection, in which it is said, “ that the attachment varies from the affidavit, and recites that affidavit has been made that the plaintiffs are concealing their effects.” This objection is not sustained by the record as sent to this court, and we can look to nothing else. The attachment recites that affidavit had been made that said Daniel Harkins and Nancy Harkins are concealing their effects so that their claim against them will be defeated, &c.” Indeed, if such mis-recital existed, and the affidavit itself showed that the proper averment was made, and that it was a mere mistake of the justice who issued the attachment, we should look to the whole record, and not give it a construction which would defeat its own end. But it is not necessary to decide as to this, because the record does not disclose such fact.

The judgment will be reversed, and cause remanded.  