5 W. Va. 22 | W. Va. | 1871
The plaintiffs instituted an action of trespass on the case in assumpsit against the defendants, on the 28th of November, 1868, in the circuit court of Preston county. At the time the said action was brought the plaintiffs filed with the clerk of said court an affidavit of James K. Jacob, a credible person, and obtained thereon an order of attachment from said clerk, which order of attachment was levied on certain goods, the property of defendants. The defendants moved the court to quash the order of attachment, which motion the court overruled. Judgment for plaintiffs and sale of the property attached. From the judgment of the court, overruling the motion to quash the order of attachment, the defendants appealed to this court, and insisted that the court below erred, because the affidavit did not sufficiently state the facts to show the existence of the grounds on which the attachment was based, and that the attachment was deficient and insufficient in form and substance. The amendatory act of 1867, chap. 118, sec. 1, under which this order was made, is almost a transcript of the Ohio statute. By the said amend-atory act, the order of attachment was directed to be, made by the clerk of the court in which the action was about to be or was brought, when there was filed with him the plaintiff’s or some credible person’s affidavit, stating, 1st. The nature of the'plaintiff’s claim; 2d. That it is just; 3d. The amount the affiant believed the plaintiff ought to recover; 4th. The existence of some one or more of the eight grounds for such attachment enumerated in said statute; and, oth. All the facts upon which he relied to show the existence of the grounds upon which his application for the attachment was based. The statute also prescribed the form of the order. The order of attachment in this case is the same as prescribed by said statute. The affidavit is in the language of the statute, except in one particular, viz : it does not state in the language of the statute that the claim “is just;” but it does state that the “ plaintiffs are justly entitled to recover in the said action the sum of $469.64;” which language isa substantial compliance with the spirit of the law. Ludlow vs. Ramsey, 11 Wallace 588. An affidavit in the language of the statute has been repeatedly held sufficient. Hockspringer vs. Ballenberg, 16 Ohio Rep. 304; Harrison et al. vs. King et al.,
The judgment, therefore, of the court below should be affirmed, with costs and damage.
JUDGMENT AFFIRMED.