The defendant was indicted for resisting an officer in executing a writ of attachment.
The affidavit upon which the attachment was sued out was perhaps technically but not substantially defective. On motion it could have been corrected without prejudice to the defendant in the attachment, and would not have been any sufficient reason for abating the same. Tet this is relied upon as showing a want of jurisdiction to issue the attachment, and there being no jurisdiction, the writ in the hands of the officer was void, and being void the defendant in this prosecution was justified in resisting the officer.
The demurrer to the indictment which was overruled, and the instructions of the defendant which the court refused to give, were in the main founded upon the idea that the writ of attachment was void in the hands of the constable on account of a technical defect in the affidavit. The mistake in all this consists in not taking the proper distinction between a void process, (to execute which would of course make the officer a trespasser,) and a process over which a magistrate has jurisdiction, but in exercising which he does not in *437all particulars follow the requirements of the law. In such a case it is not competent for the officer to determine the validity of the proceeding, nor would he be held inexcusable . if he refused under such circumstances to execute the writ.
The Code provides that the party suing out the attachment process shall not be prejudiced for any defect which the affidavit or bond may contain, provided such defect be rectified within a reasonable time after the same is discovered. It does not follow, therefore, that an officer having a writ of this description to execute, may refuse to do so, or has no power or authority to do so because the affidavit was defective in some particular. A legal fallacy underlies all the objections taken to the proceedings below, by the defendant, and the case must therefore be affirmed.
Judgment affirmed.