
    James Jones vs. Joseph S. Leake.
    In an affidavit to procure an attachment, it is sufficient if the plaintiff swear to the indebtedness in a sum certain, and that the defendant is concealing his property so as to defeat the affiant’s claim ; it is not necessary to add that the facts are within his personal knowledge, or that he is informed or believes the facts stated to be true ; such additional affidavit is necessary only when a narrative of facts and circumstances is detailed in the body of the affidavit.
    In error from the circuit court of Lowndes county; Hon. Francis M. Rogers, judge.
    James Jones, on the 14th of October, 1845, made the following affidavit for an attachment against Joseph S. Leake, “ that one Joseph S. Leake is justly indebted to him in the sum of one hundred and sixty-six dollars and sixty-nine cents; and that the said Joseph S. Leake is possessed of a certain negro woman slave, named Charlotte, now in the county of Lowndes; and that the said Joseph S. Leake is about to conceal the said negro woman, so as to defeat the payment of said claim, and prevent him from making it out of him, the said Leake; and that the said Joseph S. Leake has no other property within the knowledge of him, the said James Jones; and that the residence of the said Leake is unknown to him, the said James Jones.” Bond was duly given; the attachment issued, was levied on the negro named, and at the return term the proceedings were quashed on motion, on the ground that the affidavit did not state that the facts recited in it were either in the personal knowledge of the affiant, or that he was informed or believed them to be true. The plaintiff sued out this writ of error.
    
      Geo. W. L. Smith, for plaintiff in error.
    The statute does not require the affidavit to show in kec verba either personal knowledge or belief. Neither is it necessary to pursue the exact words of the statute to make it good.
    This court, in the case of Wallis v. Wallace, 6 How. R. 254, held the following language: “ But we do not consider it necessary that the defendant should adopt the precise language of the law; it is sufficient if the substantial requirements of the act are complied with.” See also the late case of Lovelady v. Harkins, 6 S. &. M. 412, which is decisive of this point; and also Act of 1844, p. 125.
    The statute, then, is merely directory as to substance, and not as to form. If an affidavit contain a positive and unconditional statement of charges sufficient upon which to ground an attachment, surely the court will believe they were made upon such personal knowledge or testimony as produced conviction of truth in the mind of the affiant.
    If an affidavit be good upon information and belief, we cannot account for the strange conclusion the court below arrived at, when it decided that the affidavit in this case was insufficient, although the positive and affirmative oath of the party attested truths the affidavit contained.
    Facts can only be stated upon the testimony of others, or upon personal knowledge. Belief is induced by one or the other of these modes, or a combination of both. Why, then, recite in the affidavit that which is an unavoidable inference from it, and which could add nothing to its validity?
    The judgment of the circuit court is palpably erroneous, and should be reversed.
   Mr. Justice Thacher

delivered the opinion of the court.

This suit at law was commenced by the writ of attachment. The writ was quashed in the circuit court, upon motion, because the affidavit whereon it was issued does not set forth, in so many words, that the facts sworn to were within the personal knowledge of the affiant, or that he had been informed or believed them to be true.

In the affidavit, the affiant swears that the defendant is indebted to him in a sum certain, and that he is about concealing his property, so as to defeat the affiant’s claim. In these particulars, there is the oath of the plaintiff plainly made to the facts. They do not purport to have been sworn to upon the information of others, but carry clearly the presumption that they were within the personal knowledge of the affiant. As they are stated upon the oath of the plaintiff, it is but a fair construction that he believed them to be true. Any other presumption in such a case would be violent, illiberal and unjust.

The statute, it is true, says that the facts upon which an application for an attachment is predicated shall be stated in the affidavit to be within the personal knowledge of the applicant, or that he is informed or believes the facts stated to be true. The addition of such a statement, after a positive affidavit that certain facts exist, would be mere surplusage, which the law never tolerates. The statement can only be required where the body of the affidavit sets out a narrative of facts and circumstances whose truth require the indorsement of the affiant. The substantial requirements of the act are complied with in this affidavit, which is enough to sustain its validity. In other respects the affidavit is sufficient.

The judgment must be reversed, the motion to quash the attachment overruled in this court, and the cause remanded for further proceedings.  