#### SATTERLEE CLARK and HENRY JONES, *pl'ffs in*error, *vs.*FRANCIS GILBERT, *def't in error,*

| *Error to Dane*county•

*As*affidavit for an attachment under the law of 1839, charging fraud, *as the affumt verily believes,*with an indorsement of the ofBoer thereon that tie is satisfied *that the matters therein set forth are true,*is sufficient.

If the affidavit is in proper form under the statuto, the certificate of the officer that he is satisfied, is all that is required.

A plea in abatement of a misnosmer of the defendant for want of the addition of “junior” to his name, may be regarded as a sham plea and treated as a nullity.

Gilbert sued out a writ of attachment against Clark & Jones in the Dane District Court, on the 17th January, 1842, upon an affidavit and indorsement of satisfaction thereon, which are embodied in the opinion of the court.

Atthe October term, A, D. 1842, the plaintiff filed a declaration in assumpsit, on a promissory noto and an account; and the defendants moved the court to quash the writ and dismiss the proceedings for the following reasons:

*208“ *l,*The affidavit is insufficient in this, that it only states ihd belief of the defendant, and shows no fact in proof of a fraudulent intention in the defendants, to dispose of their property.

2. The certificate of the clerk is insufficient in this, to wit: that it does not certify that he the said clerk, is satisfied of the existence of either of the causes mentioned in the statute for granting a writ of attachment.

3. The affidavit is insufficient, in that it does not sufficiently set forth the nature of the indebtedness.

4. The notice of the attachment was not published for *six weelcs successively,*as required by the statute.

5. The return of the sheriff is insufficient, in that it does not appear that he attached the property in the presence of two freeholders of the county, or that said property was appraised by two freeholders of the county.”

Publication of notice of the attachment, was proven by the editor of the paper, to have been made for “six successive weeks.”

The District Court overruled the motion to quash, and the defendant, Clark, filed a plea in abatement of a misnosmer of himself, alledging that he had always been known and called by the name of “Satterlee Clark, junior,” and not by the name of “Satter-lee Clark.” The plea was overruled by the court,without any issue oflaworfact upon it; and at the same term judgment by default was rendered against the defendants for want of a plea. The plaintiff, by leave of the court withdrew his account, and the clerk ass.essed the damages upon the promissory note at $296 08, for which sum the court rendered judgment: to reverse which judgment, Clark and Jones have prosecuted this writ of error.

WhitoN, for plaintiff's in error:

We contend that the affidavit is not sufficient, and that the court below ought to have sustained the motion to quash the writ. The affidavit states neither facts nor circumstances, but mere belief. The decisions in New York say, that proof of facts and circumstances must be made, and that belief is not sufficient. *Vos - burg vs. Welch, li*John Rep. 175; *Taiman vs. Bigelow,*10 Wendell, 412. Our statute requires the officer to be satisfied of facts, and the court should examine the affidavit, and see whether it contains matter sufficient *legally*to satisfy him that the facts existed, and if it does not, the writ should be quashed; seo the case of *Morrison vs. Ream*decided at the last term of this court. *209Bat the indorsement of the officer does not show that he was satisfied of the existence of any fact that would authorize the writ to issue; it only shows that he was satisfied that the affiant *believed*the facts. Belief itself is not sufficient, and satisfaction of belief amounts to nothing. The affidavit is also defective, in not stating the nature and amount of the indebtedness.

The proof of the publication of notice, is not full and regulan The statute requires the proof to be made by the printer, or his foreman or principal clerk, Stat. Wis. 247, see. 58. The affidavit of the editor or publisher, is not the proof required.— Again, the attachment law requires the notice to be published for *six weeks successively,*and this proof establishes the publication for *six successive weeks.*This is not a compliance with the Statute. Soe *Anon.*1 Wendell, CO. The first publication may have been on Saturday and the last on Monday, and there may have been six *successive*weeks of the publication, and still it may not havo continued for the period of six weeks.

Field, for defendant in error:

This court cannot examine any thing that is not properly a part of the record. The affidavit is no part of the record, unless made so by a bill of exceptions, and this court cannot notice it. 1 Hen. & Mun. 375. A bond, unless set out on oyer, and affidavit for continuance, or to hold to bail, or for any other purpose, or proof of the publication of notice, forms no pan of the record, unless embraced in a bill of exceptions; 3 Peters’ Dig. 440, 441; 1 Scammqn,233; 5 Peters, 248; 4 Hen. & Mun. 158.

But however this point, may be considered, the affidavit will be found, upon examination, to comply fully with the requisitions of the statute of 1839, under which the writ was issued. According to the decision of this court, in the case of *Morrison vs. Fake,*in 1841, a substantial compliance with the statute, was sufficient.

Moses M. Strong, in reply:

The counsel for the defendant in error contends, that because the affidavit is not made part of the record by a bill of exceptions, its sufficiency cannot be inquired into here. To establish this principle, will be to overrule the whole current of the decisions of this court upon similar questions. In the case of *Doty vs. Strong,*decided in 1839, an affidavit for a continuance was filed in the court below, and the motion to continue was overruled.— Ho bill of exceptions was taken, but this court reversed the judg-*210xnont for error in refusing to continue the cause. The court also decided upon matters not made part of the record by bills of exceptions, in the case of *Morrison vs. Fake,*in 1841; and in the cases of *Rotven vs. Taylor,*and *Morrison vs. Ream,*in 1842. — ■ But the affidavit for an attachment is legitimately a part of the record, and does not require a bill of exceptions to make it so. It is the very foundation of the whole proceeding. If an attachment case were brought into this court, and the record did not show that any affidavit had been filed to authorize the issuing of the writ, would the court not reverse any judgment that had been recovered in the case? If so, the same decision must be given upon a defective affidavit.

Both the affidavit and the satisfaction indorsed, are, as we contend, defective. The affidavit is only of the belief of the affiant, and the satisfaction is only of the belief, and not of any fact.— Neither is a compliance with the law; and in this view I think we are sustained by the decisions in the cases of *Mayhem Dudley vs. Mayhem- Merrill vs. Low;*and *Morrison vs. Ream.*Test the affidavit by considering, whether Bruce, the affiant, could be indicted and convicted of perjury if it is false? It appears to me that no such indictment could be sustained. An affidavit that could not, in any possible state of facts, support a prosecution for perjury, cannot be sufficient for any legal purposes. The very fact of there being a difference of opinion upon the affidavit,is sufficient to set it aside; for, as this court said in *Merrill vs. Low,*the affidavit should be so certain as to leave no doubt or difference of opinion.

The court below ought to have required an issue, either by demurrer or replication, on the plea in abatement. If the plea was bad,the defendants should have had leave to plead over; and it was error in the court to dispose of the plea in a summary way, and give judgment in chief against the defendants. See the case of *Arndt vs. Allard,*decided at the August term, 1840.

Opinion of the Court, by

Judge Mikler:

The plaintiffs in error were defendants in an action of assump-sit commenced by the defendant in error in the District Court of Dane county, by attachment. The affidavit for the attachment was made before the clerk of the said court, before the attachment law was amended, and is as follows: “ William II. Bruce, agent of Francis Gilbert, being duly sworn, doth depose and say, *211that Satterlee Ciark and Henry Jones, by the name of Clark &. Jones, are justly indebted to the said Gilbert, in the sum of three hundred and five dollars and fifty cents, on a note of hand and balance of account, and that he verily believes, that said Clark & Jones are about fraudulently to dispose of their property, so as to hinder their creditor, the said Gilbert:” On which the clerk make this indorsement: *“*The above affidavit, being subscribed and sworn to, is to me satisfactory evidence that the matters therein set forth are true.”

Wuiton, Moses M. Strong, and Abbott, for plaintiffs in error.

Pieid & Botkin, for defendant in error.

A motion was made in the District Court on the part of the defendants, to quash the writ for insufficiency of the affidavit, and also of the indorsement of satisfaction by the clerk. The motion was overruled, and this forms the assignment of errors in this court.

An inspection of the paper, is sufficient to satisfy the court that the District Court did not err. The affidavit is complete, according to the form, under the statute before the amendment. The certificate of the officer is all that is required. We understand by it that the officer was satisfied that the defendants were about fraudulently to dispose of their property, so as to hinder their creditor, the plaintiff.

On the 26th day of July, which was the ninth day of this term, the plaintiff in error filed, as an additional error, that the court erred in overruling the plea in abatement, no issue of law or of fact having been made upon it. This plea in abatement, is on the alledged ground that Satterlee Clark is known as Sattcrlee Clark, junior, and is not so styled in the record, &c. The rules of court require tke assignment of errors tobo filed on the first day of the term, and the court are under no obligations to notice any filed af-terwards. The court will notice an error apparent on the record when necessary, for the sake of justice; but this appears too trivial to require this attention from us. And after a motion was filed by defendants to dismiss,for reasons filed, the court, no doubt, considered this plea as scarcely deserving more than a mere passing notice, and no doubt treated it as a sham pica.

Judgment affirmed with costs.