
    Richard G. Wharton vs. John B. Conger.
    Two affidavits, each of which was sufficient in form, made before a justice of the peace, to procure an attachment for the same cause, and on which an attachment issued, will not be ground for quashing the attachment; the surplusage of a second affidavit will not vitiate the proceeding.
    An affidavit to procure an attachment, which stated that the defendant was indebted “ in the sum of five hundred dollars or thereabouts, and that the plaintiff has been informed and verily believes, that the defendant is about removing his property without the limits of the state of Mississippi, so that the plaintiff’s claim as aforesaid, will be defeated, or cannot be made,” is sufficient in form.
    The act of 1844, ch. 15, extending the remedy by attachment and garnishment, reaches much further in its effects than the former law of attachment; the lien of an attachment issued under it is not raised by the appearance of the party ; it is therefore unnecessary to add to the affidavit the words, “ that the ordinary process of law cannot be served upon the defendant.”
    On an attachment at the suit of W. against C., the sheriff returned “ Levied this attachment on the following named negro slaves, to wit: Moses Slater, Mary his wife, and Cornelius their child, by going on the premises of the defendant C., and then and there, in the presence of M. and H., two credible witnesses, talcing possession of the same as the property of said C., and declaring the same to be done at the suit of the plaintiff within ; held, that the levy was sufficiently described.
    It seems that where a party defendant in an attachment, executes a replevy bond to release property attached, he at the same time releases any technical objection which might exist to the form of the levy.
    
      Where an attachment for the sum of five hundred dollars, sued out before a justice of the peace, was made returnable before “ a court to be held at Port Gibson, for the county of Claiborne, upon the fourth Monday in November, after the date of the issuance of the attachment; ” it was held, that the circuit court of Claiborne county, was the court to which the attachment was thereby made returnable, as that was the only court which could take jurisdiction of such a process.
    In ERROR from the circuit court of Claiborne county: Hon. George Coalter, judge.
    On the first day of July, 1844, Richard G. Wharton made affidavit as follows, viz. :
    “ State' of Mississippi,
    Claiborne County.
    “ Personally appeared before the undersigned, a justice of the peace in and for said county, Richard G. Wharton," who being duly sworn, deposes and says, that John B. Conger is indebted to him in the sum of five hundred dollars, or thereabouts, and that he has been informed, and verily believes that the said John B. Conger is about removing his property without the limits of the State of Mississippi, so that his claim as aforesaid, will be defeated, or cannot be made. R. G. Wharton.”
    “Sworn to and subscribed this the first day of July, A. D. 1844. W. R. McLean, J. P. [seal.] »
    Whereupon at the same time, Wharton gave-bond with H. W. Allen, as his security, payable to Conger, in $1000, conditioned according to law.
    Attached to this bond, was another affidavit, in these words, namely:
    “State of Mississippi,
    Claiborne County.
    “ Personally appeared before the undersigned, a justice of the peace in and for said county, Richard G. Wharton, who being duly sworn, deposes and says, that John B. Conger is justly indebted to him in the sum of five hundred dollars or thereabouts, and that he is informed and verily believes, that the said John B. Conger is about removing his property without the limits of the State of Mississippi, so that he may be defeated in collecting the same. R. G. Whauton.”
    
      “ Sworn to and subscribed this the first day of July, A. D. 1844. W. R. McLean, J. P. [seal.] ”
    Whereupon, the justice immediately issued a writ of attachment, in these words, viz.:
    “ State of Mississippi,
    Claiborne County.
    “ To the sheriff or any legal officer of said county — Greeting: Whereas, Richard G. Wharton hath complained on oath to the undersigned, a justice of the peace in and for said county, that John B. Conger is justly indebted to him in the sum of $500 or thereabouts, and oath having also been made, that the said John B. Conger is about removing his property without the limits of the State of Mississippi, so that his claim may be defeated, or cannot be made; and the said Richard G. Wharton having given bond and security, according to the directions of the act in such case made and provided: I therefore command you, that you attach the estate, real and personal of the said John B. Conger, if to be found in your county, or so much thereof as may be of value sufficient to satisfy the said debt and costs, according to the complaint; and such estate so attached in your hands to secure, or so to provide that the same may be liable to further proceedings thereupon, according to law, at a court to be held at Port Gibson, for the county of Claiborne, on the fourth Monday of November next, &c., when and where you shall make known how you have executed this writ.
    “ Given under my hand and seal this 1st day of July, A. D. 1844. W. R. McLean, J. P. [seal.] ”
    The sheriff’s returns on the attachment were as follows, viz.:
    
      “ Received, July 1st, 1844.
    “ M. O. HofKins, Sheriff.
    
    “By Jambs A. Gage, D. S.”
    
    
      “ Levied this attachment on the following named negroes, slaves, to wit: Moses Slater, Mary, his wife, and Cornelius, their child, by going on the premises of the defendant, John B. Conger, and then and there, in the presence of James H. Maury and A. H. Horner, two credible witnesses, taking possession of the same, as the property of said Conger, and declaring the same to be done at the suit of the plaintiff within.
    “ M. 0. Hopkins, Sheriff.
    
    “ By James A. Gage, D. S.”
    
    “July 2d, 1844.
    “ I value the slaves named in the above levy, as follows, to wit: Moses Slater at $500; Mary at $400; Cornelius at $150.
    “ Filed on 2d December, 1844.
    “ D. McDougall. By N. McDougall, D. S.”
    
    “The negroes levied on were replevied by John B. Conger, giving bond with P. Briscoe, D. Harrison, ■ S. Briscoe, W. C. Coleman, and R. "Valentine, as sureties, 13th May, 1845.”
    These proceedings with the replevin bond, were returned into the circuit court of Claiborne county; and at the November term, 1844, the plaintiff by attorney filed a declaration on the attachment for $3S6 25, as due 4th February, 1844.
    An order of publication was made 13th December, 1844, for six weeks. The publication was proved and filed 27th May, 1845, in court.
    At the May term, 1845, the following motion was entered in court, viz. : —
    “ Richard G. Wharton vs. John B. Conger.
    
    Motion to quash the attachment and the levy thereof, in the above stated case;
    1st. Because there is no sufficient affidavit filed.
    2d. Because the attachment is fatally variant from the affidavit.
    
      3d. Because the affidavit and attachment, and the return thereof are illegal and void.
    4th. Because the levy of such attachment, and the return thereof are illegal and void.
    Thrasher and Sillus, for motion.”
    This motion on argument was sustained by the court, and the attachment quashed on the 5th June, 1845 ; and the plaintiff below has sued out this writ of error.
    
      John B. Coleman, for plaintiff in error.
    1. The making of the affidavits cannot certainly vitiate the proceedings. One can and will be rejected as surplusage. That on which we rely, and on which the attachment issued, is in strict conformity with the statute.
    2. The objection that the sheriff’s return is insufficient, we submit is not well taken.
    How could the sheriff legally attach personalty 1 Only by taking it into his possession. This he certifies that he has done, and with all the formalities required by the statute.
    
      L. N. Baldwin, on same side.
    1. Either affidavit is sufficient; if not, the court may reject one as surplusage. See Spear v. King, 6 S. & M. 27 6.
    2. The objection to the levy is purely technical; it is substantially sufficient. Redus v. Wofford, 4 S. & M. 579; Lovelady v. Harkins, 6 S. & M. 412.
    3. If the levy be insufficient, the error was cured by the re-plevy of the property.
    
      J. B. Thrasher, for defendant in error,
    contended,
    1. That no portion of the old law of attachment was repealed by the law of 1844; and therefore any deviation in the affidavit, bond or writ of attachment, from the forms prescribed by the old law (H. & H. 548,) would make the proceedings irregular.
    2. He therefore insisted, that the attachment was properly quashed; 1, because it issued on two distinct affidavits; 2, neither of which were in the language of the statute, nor grammatically certain ; 3, they each omitted the words “ so that the ordinary process of the law could not be served.” H. & H. 551, sec. 11; Ibid. 548; Act of 1844, p. 125 ; 2 S. & M. 215 ; 5 How. Mi. R. 298.
    3. The bond and affidavit were not signed with the name in full, but only the initials of the Christian name of the plaintiff. H. & H. 549, sec. 13.
    4. The attachment writ did not name the court to which it was returnable, the day on which it was to be held, the object for which it issued, nor to whom the officer was to make known how he had executed it. H. & H. 551, sec. 19 ; Plowd. Com. 113; 20 John. R. 250; 1 Paine’s R. 406.
   Mr. Justice Thacher

delivered the opinion of the court.

This is a writ of error from a judgment of the circuit court of Claiborne county, quashing an attachment upon which the proceedings in the cause were commenced.

The first ground upon which it is contended the judgment of the circuit court was correct, is that two affidavits were made upon which the writ issued. The appearance of two affidavits' in the case, may probably be accounted for by being considered an error of the officer in issuing the writ, but in any point of view the surplusage of a second affidavit cannot vitiate the writ, when it is manifest that they both related to the same matter of complaint. The affidavits were also sufficiently in form.

The act of 1844, ch. 15, entitled, “ An act to extend the remedy by attachment and garnishment,” authorizes the issuance of the writ, upon an affirmation that the debtor is about removing his effects, so that the claim of the attaching creditor will be defeated. The object of the statute reaches much further in its effects than the former law of attachment, and the lien created by it upon the property attached, is not raised by the appearance of the defendant. It was, therefore, unnecessary, under this statute, to add to the affirmation, that the ordinary process of law cannot be served upon the defendant.

The levy of the sheriff is sufficient. He shows by it that he took into possession the property levied upon ; besides the defendant gave a replevy bond, which probably releases any technical objection.

The attachment was made returnable to a court to be held at Port Gibson, for the county of Claiborne, upon the fourth Monday in November after the date of the issuance of the attachment.' It was therefore returnable to the circuit court, because that court was the only one which could take jurisdiction of such a process.

The judgment must be reversed and the cause remanded.  