
    Commonwealth to use v. Sisler.
    
      Attachment under the act of 1869 — Bond — Defense—Prosecution of action.
    
    In an action upon a bond given in attachment proceedings under the act of 1869 to enable the defendant to retain possession of the goods attached, an affidavit of defense is insufficient which merely avers that the attachment proceedings had not been fully ended by a trial to determine whether there was fraud, where the record shows that the court on motion had refused to dissolve the attachment; such action of the court determines the question of fraud.
    Argued May 8, 1900.
    Appeal, No. 101, Jan. T., 1900, by J. G. Sisler and G. W. Newcomer, from order.of O. P. Fayette County, Dec. T., 1899, No. 293, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of Commonwealth to use v. J. G. Sisler and G. W. Newcomer.
    Before .Gbeen, C. J., McCollum, Fell, Bbown and Mestbezat, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts appear by the opinion of the Supreme Court, and by the report of Slingluff v. Sisler, ante, p. 121.
    
      Error assigned was the order of the court.
    
      Edward Campbell, for appellants.
    D. M. Eertzog, with him E. I). Fulton, for appellee.
    May 21, 1900:
   Opinion by

Mr. Justice Fell,

This appeal raises in another form the same question which was decided in Slingluff, Johns & Co. v. Sisler, Newmyer’s Appeal, ante, p. 121, in which the opinion of the court has been filed. The action was on a bond given by the defendant and his surety, Newcomer, to enable the defendant to retain possession of the goods attached, the condition of the bond being that the debt and costs should be paid or the goods surrendered if the plaintiff recovered judgment in the attachment proceedings. The only defense set up by the affidavit is that the attachment proceeding has not been fully ended by a trial to determine whether there was fraud. As it has been held that this question was for the court, and was finally decided on the motion to dissolve the attachment, the defense fails. The order of the court entering judgment for want of a sufficient affidavit of defense is affirmed.  