#### Alexis Phelps, Appellant, v. Robert R. Young, Appellee.

APPEAL FROM ADAMS.

Under the attachment law of 1827, which requires that the amount and nature of the indebtedness should be specified in the affidavit, it is sufficient to state that the non-resident "is justly indebted to the plaintiff in the sum of$-, by his certain instrument in writing signed by him.

Upon an order for a change of venue and granted, but before the record is removed, an affidavit of the materiality of witnesses for the purpose of taking their depositions, is properly made in the circuit court of the county where the suit is brought, and the computation of time aud distance must be made from that county.

It is not necessary that the magistrate should state the time and place of taking the depositions.

Opinion of the Court by

Justice Smith.

This is an appeal from the Adams circuit court. The grounds relied upon for a reversal of the judgment of the circuit court, are,

1. The insufficiency of the affidavit required by the provisions of the act authorizing the suing out of attachments.

2. The alleged irregularity in the mode of taking the depositions which were read on the trial.

The proceeding must be considered as one against a nonresident debtor, and all the forms of the statute appear to have been complied with, unless the affidavit upon which the attachment was sued out, should be defective in not sufficiently specifying the nature of the indebtedness. The *328statute requires* that the plaintiff in the attachment shall specify in his complaint, on oath or affimation, the amount and nature of the indebtedness of the defendant. The deposition sets out that Phelps is justly indebted unto the plaintiff “ in the sum of fourteen hundred dollars by his certain instrument of writing signed by him;” and the question is thus presented for determination whether this is the description of specification intended by the statute. It would seem at a first examination of the object of the act, that there was not that compliance with its spirit in the specification given, as its framers intended, but when it is recollected that the plaintiff has filed his declaration, in which the entire cause of action is fully set forth, the objection loses its force; and the more completely so, as the defendant did, at no time in the court below, except to the sufficiency of the affidavit for the cause now alleged, or for any other.

The objection, as to the irregularity in taking the deposition, is equally untenable. Upon the death of the magistrate before whom the depositions were to have been taken, the magistrate to whom the docket of the deceased magistrate was transferred, might have proceeded to take them, but the plaintiff took the precaution to give a further notice of the death of the magistrate, and that the examination of the witnesses would take place before another magistrate at the same place and hour, and to whom the docket and papers of the deceased magistrate had been transferred. The affidavit of the materiality of the witnesses, was properly filed in the circuit court of Jo Daviess county, before the removal of the record, although the change of venue had been awarded to Adams county. The witnesses were there to have been examined, and the computation of time and distance must be computed from that county, and not from Adams county. The further objection that the magistrate did not state the time and place of taking the depositions, is wholly immaterial.†

As the proceedings are manifestly against a non-resident debtor, the objection, that it is not stated in the affidavit of the plaintiff, that “ the defendant had departed from this state with the intention of having his effects' and personal estate removed without the limits of this state,” is wholly inapplicable and untenable.

I am of opinion that the cause has been rightly decided, *329and that the judgment of the circuit court ought to be affirmed with costs. (1)

Wm. Thomas, for appellant.

Strode and Cavarly, for appellee.

Judgment affirmed.

*

Rev. Code of 1827, page 66,

†

Rev. laws of 1827, p. 175, sect. 3.

(1)

See note to Clark v. Roberts, ante, p. 285.