he should file bis petition, or supplemental bill, setting up the necessity and propriety of so proceeding, and obtain the authority before he commences at law. It cannot be the sound construction of the statute, that a party may file his bill to foreclose, afterwards commence a suit at law to recover the same debt in violation of the provisions of the statute, prosecute both to near their termination, and then obtain an ex parte order in the chancery suit authorizing him to proceed at law, and that this order will relate back to the commencement of the action, and legalize the whole proceeding. But all this is not very material to the question. The decree rendered at the coming in of the master's report, for the balance of the money due on the mortgage, has all the properties, force, and effect of a judgment at law, to be carried into effect by execution, as in other cases, and of course must be a bar to any subsequent proceedings to recover the same debt. If this plea in bar can be obviated by the previous order of the chancellor, how is the plaintiff to avail himself of it? By demurrer? Certainly not; for on demurrer, the court cannot notice any thing out of the record of the particular case in applying the law to it. Counsel say that the court is bound to notice its own records. This is true in all cases where they can be legally brought to notice, but the court cannot look into the records of other cases for facts to sustain a demurrer; for this would be making an issue of fact instead of law, and upon such an anamolous issue, the court would have to try the fact. The law is, and was so decided here in the case of Haney vs. Clark, a few days since, that this court cannot notice any thing that is not legitimately a part of the record of the particular case under consideration; and this court cannot here take any notice of the scrap from the record of the chancery suit which the clerk has certified and sent up. If the plea in bar is to be avoided by the leave obtained in chancery, the matter should have been replied, setting up the authority, which would have brought the sufficiency of the order in issue. The plaintiff below, having failed to do this, and relied upon his demurrer, and that having been sustained by the court, the judgment must for this cause, if for no other, be reversed.

Opinion of the Court, by Judge MILLER:

This suit was commenced by attachment in the District Court of Iowa county, by John Bevans against William B. Slaughter. It was predicated on an affidavit of plaintiff, charging the defend

ant with fraudulently disposing of his property, so as to hinder and delay his creditor. The affidavit was made before a justice of the peace, the 10th day of September, 1839, (before the act in the Revised Statutes was amended,) and the justice had neglected to indorse his satisfaction thereon previous to the issuing of the writ. At the September term of said District Court for the year 1840, the court allowed the said justice to appear in court and make the necessary indorsement of satisfaction on said affidavit, nunc pro tunc, the defendant opposing the same. In pursuance of the tenth section of said act, additional writs to the writ issued to the sheriff of Iowa county were issued on the same day to the sheriffs of Brown, Grant, Milwaukee, Dane, and Racine counties, and on which property was attached in said counties. It appeared by the motion filed to dismiss the writ and proceedings, that the defendant before and at the time of the commencement of the suit resided in Dane county. The court overruled the motion to dismiss the writ and proceedings, and the cause proceeded to final judgment.

The first error assigned for our consideration is as follows: The court erred in recording the first default of the defendant before proof of publication filed.

The third section of the act concerning attachments, directs the clerk who issued the writ, upon the return of the writ, to make out an advertisement, which is to be published within thirty days. When these writs were returned, does not appear. The return of a writ is presumed to have been on the return day mentioned therein, unless the date of the return specially and positively appears, by indorsement on the writ itself, or entry of record. By the seventh section, the first default of the defendant is to be entered at the first or return term, which could not be done if the writ had not been returned in time for the publication, which may not have been issued in time, or if so, may be retained in the sheriff's hands until the return day. The first default is so much a matter of form, that the entry thereof without previous publication, or proof of the same, is not error.

The second error assigned is, that the court erred in permitting the affidavit to be amended. There was no amendment made of the affidavit, nor could there be any, for an affidavit of this kind is not amendable under any circumstances. The error assigned, from the argument, we are to infer, has a reference to the permis

sion to the justice to indorse his satisfaction. This court decided at the term of 1840, in the case of Mayhew & Dudley vs. Mayhew, that the satisfaction of the officer is an indispensable pre-requisite; and that can regularly appear in no other way than his own indorsement of the fact; and that the clerk could not properly and legally issue the writ without such evidence of satisfaction. The same principle was reiterated at the term of 1841, in the case of Morrison vs. Fake. And the legislature was so well satisfied of the propriety of this rule, that in the act to amend the act concerning the writ of attachment, approved February 16th, 1842, it was incorporated therein. From this it will appear that the indorsement of the justice should not have been allowed, and that the District Court erred therein.

The third error assigned is, that the court erred in rendering final judgment before two defaults of the defendant had been entered.

At the September term, 1840, which was the second term, the defendant appeared and filed a motion to dismiss, which, at the April term, 1841, was overruled. At this term, the defendant filed his plea in abatement, which was disposed of against him, when the defendant filed his plea of general issue, and a plea of former recovery. At the September term following, the cause, being at issue, was tried by a jury. This statement is an answer to the error assigned. The defendant's second default could not have been legally entered in the face of his plea.

The fourth error assigned: That the court erred in overruling the motion to dismiss the attachment. The motion was made at the September term, 1840, on the ground that the defendant was, at the time of the commencement of the suit, and-continued to be, a resident of Dane county, and not of the county of Iowa. The process of attachment is, in the case of a non-resident, a means of compelling a party to appear through his property. It is not regulated by the general law respecting proceedings in courts, but it is regulated exclusively by the act upon the subject of attachThat act does not confine the plaintiff, in his suit, to the county where the defendant resides or is found. The original affidavit filed by the plaintiff set forth that the defendant had property in the county of Iowa, which was enough to authorize the writ in that county, if the point were doubtful. In this the court did

ments.

not err.

The fifth error assigned is: "That the court erred in sustaining the plaintiff's demurrer to the second plea of the defendant." The said second plea was a plea of former recovery, good on its face, to which the plaintiff demurred generally. This court is unanimously of opinion that there was error in this decision; and as error is so apparent, it is not necessary to refer to authority upon the subject.

These embrace all the errors material on the record. It is therefore considered and adjudged, that the judgment of the District Court of Iowa county be reversed, with directions to said court to set aside the writ of attachment and all subsequent proceedings.

MOSES M. STRONG and BURNETT, for pl'ff in error.
JACKSON and DUNN, for def't in error.

SATTERLEE CLARK and
HENRY JONES, pliffs in error,

vs.

FRANCIS GILBERT, def't in error,

Error to Dane county.

AN affidavit for an attachment under the law of 1839, charging fraud, as the affiant verily believes, with an indorsement of the officer thereon that he is satisfied that the matters therein set forth are true, is sufficient.

If the affidavit is in proper form under the statute, 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.

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

"1. The affidavit is insufficient in this, that it only states the 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 weeks 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 "Satterlee Clark." The plea was overruled by the court, without any issue of law or fact 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 assessed 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 plaintiffs 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. Vosburg vs. Welch, 11 John Rep. 175; Talman 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; see the case of Morrison vs. Ream decided at the last term of this court.