
    Charles Spear et al. vs. Reuben King.
    Upon motion to dismiss an attachment, the court cannot look beyond the face of the bond itself; if it be valid upon its face, that is sufficient.
    If an attachment bond be signed by A., as agent for the attaching creditor, and be in other respects regular, the court cannot, on motion to dismiss the attachment, inquire into the question as to the agency of A.
    An affidavit to procure an attachment, which avers that the debtor is concealing his goods, will not be vitiated by containing the reason of the creditor’s belief of that fact.
    An affidavit to procure an attachment in these words, viz.: “ Said K. (the debtor) has conveyed to his brother most of his tangible effects, is greatly in debt for goods purchased as a merchant; and these debts are pressing him; that these goods K. had conveyed to his brother, who was a man of little property or responsibility, but lately come to this state ; no permanent residence in it, and is expected soon to leave; that some of said goods had been boxed up, and that K. and his brother contemplated moving themselves out of this state in some short time, and that by this means K. was concealing his effects so that the claim of the creditor would be defeated in the ordinary course of law: ” Held, to be sufficient.
    In error from the Lowndes circuit court; Hon. Hendley S. Bennett, judge.
    John S. Topp, Esq., made the following affidavit before a justice of the peace in Lowndes county, viz.; “ That according to the best of his knowledge and belief, Rueben King, of said county, is indebted to Alva Spear, Charles Spear, and Edward Yanderhoof, merchants and partners under the firm of Spear & Yanderhoof, in the sum of eight hundred sixty-nine dollars and eighteen cents, by promissory note dated May 1st, A. D. 1844, due eleven months after date, and payable to the order of said Spear & Yanderhoof; that said Spear & Yanderhoof are absent from this state, and said affiant is their attorney for the Collection of said debt; affiant further states that he is informed that said Reuben King has conveyed to his brother, Charles B. King, most of his tangible effects ; that said Reuben is greatly indebted for goods, wares, and merchandise, by him purchased as a merchant; that the debts of the said Reuben are now beginningtobe pressed upon him; that said goods, wares and merchandise said Reuben has conveyed to, and put in the possession of said Charles B. King, who is a man of but little property or responsibility, who has but lately come to the state of Mississippi, and has no permanent residence in the same, and is expected soon to leave the state; that some of said goods, wares and merchandise have been boxed up, and that said Reuben and said Charles B. contemplated removing themselves out of this state in some short time; affiant further saith, he believes the facts above stated are true, and that said Reuben is by the means above stated, concealing his effects so that the claims aforesaid will be defeated at the ordinary course of law.”
    At the same time the magistrate received a bond, commencing in this way, viz.: “Know all men by these presents, that we, Alva Spear and Charles Spear and Edward A. Yanderhoof, John S. Topp and Richard Evans are held&c.; ” the body and conditions of the bond were in the ordinary form; its signatures and seals as follow, viz.:
    Alva Spear, [l. s.]
    
      By his agent and Attorney, John S. Topp.
    
    Charles Spear, [l. s.]
    
      By his agent and Attorney, John iS. Topp.
    
    Edward A. Yanderhoof. [l. s.]
    
      By his agent and Attorney, John S. Topo.
    
    John S. Topp. [l. s.]
    R. Evans. [l. s.]
    A writ issued in the ordinary form, but did not embrace all the recitals of the affidavit, and was levied on the goods belonging to Reuben King. At the return term, the defendant, King; by counsel moved the court to quash the attachment. 1. For want of an affidavit. 2. For want of a sufficient bond. 3. Because the writ did not pursue the affidavit and bond. At the hearing of the motion, a rule was asked for against Topp, to compel him to show by what authority he sealed the bond for the plaintiffs in the attachment; upon which Topp admitted that he had no power or authority under seal, to sign, seal and deliver the bond; but that he was employed by plaintiffs in writing by letter as an attorney at law, to prosecute said suit; and that he was an attorney of that court.
    The court dismissed the attachment, from which the plaintiffs therein appealed.
    Evans, for appellant.
    Is an employment by letter sufficient to authorize an attorney at law to prosecute the suit of attachment? Is it sufficient to constitute an agent to prosecute the suit? Or is it necessary to make use of a sealed instrument for that purpose ? We presume that this question admits of but one answer, viz.: that the attorney may be employed, or the agent appointed without the solemnity of an instrument under seal.
    The attorney or agent being duly appointed to prosecute the suit, derives his power to make the affidavit and execute the bond for the principal, from the statute. His authority to prosecute comes from the plaintiff; his authority to execute the bond comes from the statute. All agents appointed to prosecute a suit by attachment are so appointed with direct reference to the law clothing him with power to execute the bond. Hence an agent to prosecute, can execute the bond, though his agency be not created under seal, because the statute gives him the power so to do. To this it may be said that the statute only confers on the agent the power to bind himself individually. The answer is, that such a construction is a perversion of the statute, and of all law on the subject of agency. The act of the agent binds the principal. If the principal be not bound, the act is not the act of his agent, and hence if the agent, to prosecute cannot bind his principal by the bond, then he cannot do that which the statute expressly gives him power to do.
    The statute did not intend that the agent should bind himself at all events. If so no one could appoint another to prosecute the suit except one who is willing to become surety. That the agent must necessarily bind himself by acts done for the principal, or about the business of the principal, .is counter to all law on the subject of principal and agent.
    Again, John S. Topp was an attorney at law, an officer of the court, and as such, authorized to prosecute suits of attachment. He was employed with reference to his authority to prosecute the suit, and consequently he had power to do all such acts as were necessary to be done about the prosecution of the suit. Paley on Agency, 170 sec. 4; lb. 159 sec. 1.
    In Wallis v. Wallis, 6 How. R. 256, the high court of errors and appeals of Mississippi declare — “It surely cannot be denied that one partner can bind his firm by deed in all matters which concern the prosecution of suits in which they are concerned. The bond is obligatory on the firm as much so as if it had been signed by the several members composing it. The law makes D. Wallis the agent for the other partners in all matters coming necessarily within the scope of the partnership.” If the bond signed by one partner is binding on the others, though the names of the others were not signed thereto, surely it would have bound them equally had their names been signed thereto by the agent, D. Wallis.
    Apply the doctrine to the present case. Topp was agent of the plaintiffs to prosecute the suit by appointment, as D. Wallis was agent of the other parties by operation of law. The attachment bond was necessary in the prosecution of the suit. And hence Topp could bind his principals by the bond without signing their names thereto, and surely he bound them, equally though he signed their names.
    The court in the above case from Howard, proceeds to say that “ the bond imposes no new obligation upon the principals. They are already bound by the judgment, and would be equally bound for the judgment in the appellate court. The object of the bond is to increase the security of the opposite party, which is done by requiring the secretaries to subscribe it. These views have been sanctioned by the supreme court in Alabama, in Roden v. Roland, 1 Stewart R. 266; and in Kentucky, Hardin’s R. 149, 172. The reason of these cases applies equally to attachment bonds.”
    Hence it is a matter of no moment whether the names of the principals are to the bond or not. They are bound in either case. It shows an extreme love for technicality to quash an attachment because the names of the principals were put to the bond by the agent, when they would have been bound if he had not put their names there.
    There is no objection to the sureties, °and it is submitted whether the court below did not err in quashing the suit.
    Topp being the agent, and.having given bond and security, brings the case within Page v. Ford, 2 S. & M. 266 ; and several cases on the same point in S. & M. and 7 How.
    “ A bond executed by an agent of the plaintiff in an attachment, binding ■himself individually, is a sufficient statutory bond to uphold the attachment.” 2 S. & M.
    
      Harris and Harrison, and A. Y. Smith, for appellee.
    Two motions were made in the court below. One for a rule for the plaintiff’s attorney to produce the power or warrant of attorney of the agent who signed the principal’s name to the bond, and the other to quash the proceedings because the affidavit was insufficient, the bond was insufficient,, and the writ was insufficient.
    The bond purports to be the bond of the plaintiffs, as principals, by John S. Topp, agent and attorney. It does not assume to be the individual bond of the agent, but he undertakes tn bind his principals.
    The defendant, upon entering his appearance, had a right to-the rule. Lindner v. Aaron & Nelson, 5 How. R. 586 ; 1 Hill’s S. Oar. R. 268.
    Upon the trial of the motion, plaintiff’s attorney admitted that he had no authority under seal.
    “The agent cannot bind his principal by deed, without an authority by deed also.” Lindner v. Aaron et al. 5 How. R. 586.; Williams v. Crutcher, lb. 76. Story on'Agency, 237, sec. 242; lb. 50, sec. 49; 3 Kent, 613; 1 Wend. 424 ; 2 Mass. 1L
    
      Even a ratification must be under seal. Story on Agency, 237, sec. 242 ; 9 Wend. 54,58 ; 12 Wend. 525.
    “ The bond must be perfected before the attachment can issue.” Parminter v. McDaniel et al. 1 Hill’s S. Car. R. 268.
    “ A bond may be executed by an agent binding himself individually and not professing to bind the principal.” Frost v. Cook, 7 How. 357.
    But if he undertakes to bind his principal, and make it the deed of the party himself, he must have the necessary legal auA thority to do so.
    The statute confers no such authority upon the agent, and makes no exception to the general rule of law, when he undertakes to seal and deliver the bond as the act of the principal.
    But it is contended that “John S. Topp was an attorney at law, and an officer of the court, and as such was authorized to prosecute suits of attachment, and consequently that he had the power to do all such acts as were necessary to be done about the prosecution of the suit.” The statute makes no such distinction, and puis the agent and attorney precisely on the same footing. H. & H. Dig. 549, sec, 13. Upon general principles no such authority as that of sealing and delivering bonds is conferred upon an-attorney at law, by virtue of his being employed in a suit.
    The case of Wallis v. Wallis, 6 How. 256, cited on the other side, has no application. There the bond was signed, sealed and delivered by one of several co-partners. The court say “ one partner can bind his firm by deed in all matters which concern the prosecution of suits in which they are concerned.”
    “ The law makes D. Wallis the agent for the other partners in all matters coming necessarily within the scope of the co-partnership.” Ib.
    The law having made him the agent, his signature affixed to the bond binds him and the other parties, &c. Ib.
    The act of one partner is the act of all. But surely there can be no analogy between such a case and that of an attorney at law, who does not bind himself as principal at all, but who. seeks to execute a bond as the agent of third persons.
    
      The counsel of plaintiffs is mistaken in supposing that nothing, except the want of authority to sign the bond, will be insisted upon. It was contended in the court below that the affidavit upon which the attachment was predicated was insufficient.
    The statute provides that affirmation must be made, “ that the debtor is about to remove out of this state, or has so removed, or is about to remove, or has concealed, or is concealing, or removing, or about removing, his effects, so that the1 claim of the attaching creditor will be defeated, or cannot be made;” and the facts upon which the application is predicated shall 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. Acts of 1844, 125, 126.
    In the affidavit the facts upon which the attachment was predicated are set out at large. The statute does not compel this to be done. But they are voluntarily disclosed, and the-plaintiffs must stand or fall by them-; The act only requires that the statement be contained in the affidavit, that the facts-upon which the application is predicated, are within the personal knowledge of the applicant, or that he is informed, or believes the facts to be true. Plaintiff’s counsel go farther, and assert that they were bound to set out the facts. But to the-facts disclosed we object. They are as follows, viz.: “ That affiant is informed that said Reuben King has conveyed to his-brother Charles most of his tangible effects; that said Reuben is greatly indebted for goods, wares, and merchandise, by him-purchased as a merchant; that the debts of said Reuben'are-now beginning to be pressed upon him; that said goods, wares, and merchandise, said Reuben has conveyed to, and put in the possession of said Charles, who is a man of but little property or responsibility, who has but lately come to the state of Mississippi, and has no permanent residence in the same, and is-expected soon to leave the state; that some of said goods, wares, and .merchandise, have been boxed up, and that said Reuben, and the said Charles, contemplated removing themselves out of the state in some short time, and that he, affiant,. believes the facts above-stated, to be true, and that the said Reuben, by the means above-stated, is concealing his effects, so that the claims aforesaid will be defeated at the ordinary course of law.”
    That this affidavit is double, it will require no argument to prove. That it is argumentative, is clear; that it is not positive, is manifest; that it enlarges the cause of action, is evident. The statute is, “that the claim of the attaching creditor will be defeated, or cannot be made.” The affidavit is, that .the claims aforesaid, (alluding to sundry debts, for goods, &c,, belonging to others, for only one is sued on,)'will be defeated “ at the ordinary course of law.” There is no allegation that the defendant is concealing his effects, but, merely “ by the means aforesaid.” But the affidavit disproves the inference attempted to be drawn from the facts. There is no allegation of a fraudulent ^conveyance, yet it is stated that Reuben had conveyed to, and put into the possession of his brother, goods, wares, and merchandise, and that his brother is expected soon to leave the state, and that some of the goods are boxed up. It is nowhere stated that the goods and effects, were conveyed without consideration ; but the affidavit alleges the sale and delivery. Nor, is there one single fact stated that justifies the inference that King was concealing his effects.
    The affidavit states that both the Kings contemplated removing out of this state. This is a distinct ground, under the statute, and the attachment is accordingly defective.
    The Avrit is also insufficient, in not pursuing the affidavit. The only statement is, that Reuben King “ is concealing his effects, so that the said debt will be defeated.” This writ recites the affidavit.
   Mr. Justice Clayton

delivered the opinion of the court.

Two questions are presented by this record. The first is as to the sufficiency of the bond given for the attachment issued in this cause; the other in regard to the sufficiency of the affidavit.

The bond was executed in the name of the principals, by the attorney who sued out the attachment, and who had no authority under seal for the purpose. This is the objection to it. It was signed by the attorney and another, as sureties, and there is no question as to their sufficiency. The attachment was dismissed upon the motion of the defendant.

The objection to this bond is not valid. The point has been settled in the case of Lindner v. Aaron, 5 How. 586. It is there decided, “ that, upon motion to dismiss the attachment, the court cannot look beyond the face of the bond itself; if it be valid upon its face,'that is sufficient. The authority of the agent is matter aliunde, and forms no part of the bond.” If an action were brought upon the bond, the defendants could only avoid it, upon the plea of non est factum, and it is not competent to the court, upon mere motion, to enter into such examination. Acquiescence under the act of the attorney, or a subsequent recognition of it, would render it as obligatory upon the parties, as a previous authority.

Neither do we think the objection to the affidavit can prevail. The attachment is sued out under the act of 1844, p. 125, chap. 15. It provides that the affidavit shall state that the debtor is about to remove from the state, or has removed, or is about to remove, or has concealed, or is concealing or removing, or about removing his effects, so that the claim will be defeated, or cannot be made; and the facts shall be stated in the affidavit to be within the personal knowledge of the applicant, or that he is informed and believes the facts to be true.

In this case, the affidavit sets out, with a good deal of care, a statement of the facts in regard to the conduct of the defendant, which form the foundation of the belief of the affiant, that Reuben King is concealing his effects by the means stated, so that the claim will be defeated, and that he believes the facts stated to be true.

This affidavit seems to us to contain all that the statute requires, and to be even more full than necessary. A portion of the argument against it, is drawn from unnecessary averments. The concealment of his effects by King, is the ground of the attachment, and the averment of that fact is stated with sufficient distinctness. The surplusage cannot vitiate.

Neither do we perceive any such variance, between the attachment and the affidavit, as will authorize its dismission.

Judgment reversed, and cause remanded.  