That the defendant had fled from Jefferson to Lewis, was stated in the affidavit of the plaintiff as a mere matter of belief; he did not profess to have any knowledge on the subject, nor even to have been so informed. As I read the affidavit every thing therein stated is on belief and not as a matter of fact within the knowledge or information of the plaintiff. This was not enough to authorize an attachment. (Laws of 1831, p. 404, § 35.) On this ground the defendant objected to the attachment as irregular, but the objection was overruled and he then pleaded the general issue.
The objection, was made in due time, and was well taken ; the attachment should have been set aside as irregular. Nor was the objection waived by subsequently pleading the general issue. (Avery v. Slack, 17 Wend. 85; Shannon v. Comstock, 21 id. 457; Wheeler v. Lampman, 14 John. 481.) Had this plea been interposed by the defendant, without having previously objected to the process as irregular, it would have been deemed a waiver. (Wheeler v. Lampman, supra; Swartwout v. Roddis, 5 Hill, 118.) But when the question of regularity is made at the proper time, and improperly overruled, the party is never concluded by pleading to. the action. He does what he can. and at the earliest opportunity, to arrest the irreg*95ular proceeding; but being defeated in this by the erroneous decision of the justice, the party cannot be deemed to have waived any thing by subsequently pleading to the declaration and making the best defence in his power. This is the proper distinction to be made in all cases of this description.
There are cases which hold that this objection cannot be taken, where the cause has been carried to the common pleas by appeal. (Malone v. Clark, 2 Hill, 657; Swartwout v. Roddis, supra; Wood v. Randall, 5 Hill, 264.) But this is because the remedy by appeal does not reach such an error: and not because the error was cured, or the right to take advantage of it waived, by pleading to the action.
Judgment reversed.