
    E. S. Garner v. Josiah White.
    1. An affidavit merely setting forth the belief of, the plaintiff, or his agent,. that the debt for which the action is brought was fraudulently contracted, without stating any facts on which such belief is founded, does not show a sufficient ground for the issuance of a writ of attachment.
    2. On the hearing of a motion to discharge an attachment issued upon such insufficient affidavit, it is not competent for the plaintiff, in the absence of leave to amend, or a motion for such leave, to supplement the affidavit, or validate the proceedings, by new affidavits showing the existence of fraud in fact.
    3. Affidavits introduced and used on the hearing of such motion can not be considered on proceedings in error, unless made part of the record by a bill of exceptions.
    Error to the District Court of Guernsey county.
    The plaintiff brought his original action against the defendant in the Court of Common Pleas of Guernsey county,, on the 30th of October, 1867, and caused a writ of attachment to be issued therein and levied upon the defendant’s property. The affidavit upon which the writ issued set forth as, the only ground therefor that the affiant, who was the agent of the plaintiff, “ believed, and had good reason to believe,” that the debt which the action was brought to-recover was fraudulently contracted, without setting forth in the affidavit any fact as evidence of such fraud, or ground of the belief. On return of the writ, the defendant moved the court to discharge the attachment, both on the ground that the affidavit was insufficient, and also on the ground that it was untrue. The motion was heard upon affidavits-introduced by both parties, and was overruled by the court-The affidavits so introduced at the hearing, or rather certain papers purporting to be such affidavits, appear among the original papers in the ease; but there is no bill of exceptions setting them forth, or showing upon what evidence the motion was heard. Nor does it appear that the original affidavit of the plaintiff was ever amended, or that any leave was given by the court, or asked by the plaintiff, to-amend the same.
    On petition in error the District Court reversed the order of the Common Pleas, and ordered that the attachment be-discharged ; and the object of the present petition in error is to reverse the judgment of the District Court.
    
      T. J. Taylor, for plaintiff in error:
    Whether, when the defendant moves to discharge an attachment upon the affidavits in support of his motion, the plaintiff may, by the other affidavits authorized by section-229 of the code, supply any defects in the original affidavit, does not appear to have been decided in Ohio, while in-New York this question has been much considered. See Morgan v. Avery, 7 Barb. 656; Genin & Lockwood v. Ray Tompkins, 12 Barb. 265, 273; N. Y. & E. Bank v. Codd, 11 How. Pr. 221, 230; Furnam et al. v. Walter, 13 Ib. 348, 356.
    The record shows that the motion to dismiss was heard on “ the several affidavits filed by the defendant and plaintiff,” which, together forming one chapter of evidence, satisfied the court, as in Furnam et al. v. Walter, that the-conduct of defendant was fraudulent.
    Having before it only the original affidavit, with record evidence that other affidavits were before the Common Pleas, how was the District Court prepared to find that the Common Pleas had not sufficient evidence to sustain the-order, especially if, as held in Harrison & Wiley v. King, Cary & Howe, 9 Ohio St. 388, “ A court of error, before-reversing the decision of an iuferior court upon a question of fact involved in a motion to discharge' an attachment, should be satisfied that it was clearly ‘ erroneous?’ ”
    It may be objected, that the filing of such an affidavit as is required by statute, is a condition precedent to the issuing of an order of attachment; so is the giving of such undertaking as is required by statute a condition precedent to the removal of a cause by appeal from the Common Pleas to the District Court, yet a defective bond may be amended, or a new bond, by way of amendment may be filed, under section 137 of the code. Irwin v. Bank of Bellefontaine, 6 Ohio St. 81. Why, then, may not defects in an affidavit for attachment be supplied as allowed in New York, when the motion to discharge is made upon affidavits on part of the defendant ?
    
      J. D. Taylor, for defendant in error:
    Did the District Court err in discharging the attachment ? In the case of Dunlevy & Co. v. Schwartz, 17 Ohio St. 640, this question seems to be set at rest, the court holding that the plaintiff’s belief does not lay sufficient ground for issuing a writ of attachment.
    The insufficiency of the affidavit, laying the ground for issuing a writ of attachment, is a question of law, in the determination of which the court need only inspect the paper itself. The statute requires that it shall contain at least one ground for an attachment before the order can lawfully issue; or, in the language of the statute, it must show the existence of some one of the grounds for an attachment enumerated in section 191. His belief shows nothing, and having failed in this, the whole proceeding becomes void, and what aid could additional and subsequent affidavits furnish ?
    But it is argued by counsel that a sufficient affidavit is not necessarily such a prerequisite as will authorize the court to discharge an attachment on the ground of the insufficiency of the affidavit, where supplemental affidavits ssupply the defects in the original. Is this the law of Ohio?
    Can the defendant be subjected to such a process without the plaintiff disclosing any of the grounds which the statute says he shall set forth in his affidavit? If so, the attached property can be held while the plaintiff is ascertaining whether there are not some circumstances which will justify what he has already caused to be done. The facts, the ground of attachment, must be shown to exist before the writ issues. A mere supposition or belief will not answer, nor will it do to show afterward that which the law says shall precede the order of attachment.
    But New York authorities are cited. They would have no application in Ohio. An attachment in New York is merely a provisional remedy, and the sufficiency of the .affidavit on which it is granted is not a jurisdictional question ; and under their code of procedure the whole proceeding, the warrant and the affidavit, are amendable in furtherance of justice, and unimportant errors or defects therein-may be disregarded. Morgan v. Avery, 7 Barb. 656; Matter of Griswold, 13 Barb. 412; sec. 241 of the Code as amended in 1857; Bowles et al. v. Hoare, 61 Barb. 266.
    Can the affidavit on which an order of attachment is issued be' amended in Ohio? There is certainly no such authority given by the code. It has provided for amendments in other cases, but permits none in this case for very good reasons. Drake says that no such amendment can be made unless authorized by law expressly'applicable to such cases. The Supreme Court of Georgia says that an affidavit in attachment can not be amended. Drake on Attachments, secs. 84, 87, 113; Brown v. McCluskey, 26 Ga. 577; Cohen v. Manco, 28 Ga. 27.
    If, however, the original affidavit.could be amended, it was not done; no permission to amend was asked or given.
   Welch, J.

We see no error in the judgment of the District Court. The plaintiff’s affidavit was clearly insufficient. It does not state the existence of any ground for the attachment, but merely the affiant’s belief of the fact; nor does it set forth any facts on which that belief is founded. That such an affidavit is insufficient, seems to be settled by this court in. Dunlevy v. Schwarts, 17 Ohio St. 640, and we see no reason for departing from the opinion theré expressed.

Rut it is claimed that the affidavits read at the hearing' supplied what was wanting in the original affidavit, and that although we can not, in the absence of a bill of exceptions, know what these affidavits contained, yet, as the-record shows that the motion was heard upon affidavits of both parties, we must presume that these affidavits justified, the order of the court overruling the motion. We think the answer to this is, that in the absence of leave to amend the defective affidavit, or of a motion for such leave, it was-not competent for the plaintiff to cure or supplement the original by'new affidavits. He could in that case only use-new affidavits to rebut those introduced on behalf of the defendant, and could not use them for the purpose of laying a new ground for the attachment. We see no error, therefore, in the judgment of the District Court, and the-same is affirmed.

Judgment affirmed.  