46 Miss. 246 | Miss. | 1871
The “cause” for the attachment, was that McClanahan, the debtor, had assigned a part of his property, and was about to dispose of part thereof, with intent to give an unfair preference to some of his creditors.” The affidavit and bond are dated the 24th of November, 1866. The attachment was issued the 12th of December, 1866. The writ directed the sheriff to attach the debtor’s property, etc., so as to compel his appearance at the court, to be held on the seventh Monday after the fourth Monday of March, 1866. The writ, in reciting the affidavit, in the final word uses the pronoun “them” instead of “creditors,” “with intent to give an unfair advantage to some of them.” Personal service was had upon the defendant. The papers were returned into the circuit court, held on the seventh Monday after the fourth Monday of March, 1867, showing that a levy had been made by the sheriff, on the 12th of December,
The first cause assigned in the motion to quash is not well taken. The affidavit preserves, almost literally, the terms of the fifth subdivision of article 2 of the attachment law. The objection taken to the proceedings are, that the affidavit, as recited in the attachment, does not correspond with that actually made. The affidavit, bond and the writ are of “the record.” No principle is better settled, or more salutary to the just and wholesome administration of justice, than that the whole record must be read and construed together. If one' part makes it manifest that a word omitted or inserted in another part was a clerical error, it should be so considered. That was distinctly recognized in Lovelady v. Hoskins, 6 Smedes & Marsh. 416. There, the variance was between the affidavit and the recital of it in the writ. The attachment writ read, the “ plaintiffs were concealing;” the affidavit was, the “defendants were,” etc. This was a mere clerical error, which appeared “by looking at the whole record.” In Byrd v. Hopkins, 8 Smedes & Marsh., the writ did not name the “court,” to which defendant must appear, but the bond, another part of the record, correctly recited the court, and the “circuit” court was the only one that had jurisdiction. In Houston v. Belcher, 12 Smedes & Marsh. 515, a similar error was in the bond, but for the same reason it did not prevail. In Lawrence v. Featherston, 10 ib. 347, the condition of the bond recited the debt as $10 more than the affidavit. But it was declared that the affidavit must control, it. being the foundation of the whole proceeding. The doctrine of these cases disposes of this point.
There is more difficulty as to the effect of the interval of time, between the dates of the affidavit and bond, and the issuance of the attachment. There is force in the argument of counsel, that the condition of things may be different on
If there be such delay between the several steps in the proceedings as fairly to induce the presumption that the process of the court is abused, or used oppressively, or that the “cause” of attachment may not be true when the writ is sued out, we think that the whole proceedings upon motion may be set aside. This rests much in discretion, depending on the special circumstances of the case. Unless, however, there are these strong features to warrant this peremptory disposition of the suit, the propriety of the proceedings ought to be tested by plea in abatement. The recitals in the bond and attachment are for the purposes of identity, so as to connect the affidavit, bond and writ together as parts of the same suit, rather than to indicate the order in point of time in the proceedings. The insertion of the year “ 1866,’.’ in the writ, instead of “1867,” is a clerical error, cured by other parts of the record and covered by the authorities referred to. This, however, was not assigned as reason for quashal of the writ. If it had been, the circuit court could have cured the defect by amendment, under art. 70, p. 490, Code. “ Such amendment may be made upon any application to set aside or quash the writ.” This is a reason why the point ought not to be pressed in this court. We have looked at the case in 3 N. H. 70, quoted by counsel, and also into three of the cases there referred to. In all the cases parol evidence was offered to show the mistake, which was inadmissible. 2 Johns. 190; 6 ib. 309, were cases, where a “term or more intervened between the teste and return of the writs.” They were, therefore, held to be void, and not amendable. The statute above
The judgment is affirmed.