
    Joseph T. Gans, administrator of James Bolens, deceased, v. Frederick B. Thompson and others.
    An action was brought by sureties to obtain indemnity ,from their principal before the maturity of the debt for which they were bound, and an attachment was allowed by the proper judge, on an affidavit stating the grounds therefof in the language of the statute. The attachment was subsequently discharged by the court of common pleas, on motion of the defendant, on the ground of insufficiency of the affidavit. Held — That such order of discharge was erroneous, and was, therefore, properly reversed by the district court.
    Error to the district court of Preble county.
    On the 10th of April, 1856, James Bolens, the intestate of the plaintiff in error, with the defendants in error as his sureties, executed a promissory note for $650, to one Nathaniel Benjamin, payable one year after date, with eight per cent, interest. On the 29th of October, 1856, before the maturity of the note, an action was commenced by the defendants in error against Bolens, in pursuance of section 501, of the code of civil procedure, to procure indemnity. An affidavit was filed, which, after setting forth the nature of the claim upon which the action was founded, contained the following allegations: “And the affiant further says, that the said James Bolens has absconded, with the intent to defraud his creditors; and further, that the said James Bolens is about to dispose of his property with the intent to defraud his creditors.” Whereupon an order of attachment was allowed by the common pleas judge of the subdivision, and was levied upon certain real and personal property of Bolens.
    On the 12th of December, Í856, the counsel of Bolens ■moved the court of common pleas to -discharge the attachment, for the following, among other reasons: that “ the affidavit is not sufficient to support the attachment, because the same does not state facts, nor doe's it profess to state facts, within the knowledge of the plaintiff, and closes with stating the same as matters of belief; the facts stated should be such that the plaintiff could have testified to them on a trial of the merits.” ■ The court of common pleas sustained this motion,, and discharged the attachment. Upon petition in error to the district court, this order discharging the attachment was-reversed.
    To reverse this judgment of reversal, is the object of the-present petition in error.
    
      James Clark, and Foos & Campbell for plaintiff in error.
    
      W. J. & J. A. Gilmore for defendants in error.
   Scott, C.J.

The defendants in error brought suit in the-court of common pleas, as sureties, to obtain indemnity from-their principal, before the debt for which they were bound' became due. Their right to maintain such action is given by .the 501st section of the code, “ whenever any of the grounds-exist upon which, by the provisions of this code, an order-may be made for arrest and bail, or for an attachment.” The 502d section further provides, that: “ In such action the-surety may obtain any of the provisional remedies mentioned in title 8, upon the grounds, and in the manner therein described.” The effect of this section, is to place sureties upon the same footing with creditors, in respect to the right of obtaining provisional remedies. The only grounds which authorize a creditor to obtain an attachment against the property of his debtor, before his claim becomes due, are to be-found in section 280. The grounds stated in the affidavit of the sureties, in this case, are two, First, “That the said James Bolens has- absconded with the intent to defraud his creditors,”and, Second, “That the sa.id James Bolens is about to dispose of his property, with the intent to defraud his creditors.” The former of these grounds, would give the sureties a right to maintain their action for indemnity before-the maturity of the debt; but the latter alone is found in section 230, as one of the grounds for the provisional remedy of attachment, when the debt is not due.

In the affidavit, this latter ground was stated substantially in the language of the statute, and sworn to positively, and was sufficient to authorize the allowance of the attachment by the judge. Harrison & Wiley v. King et al. 9 Ohio St. Rep. 388. On such a showing he might, in his discretion, allow, or refuse to allow, the writ.

The subsequent motion to discharge the attachment, was not founded on a denial of the facts stated in the affidavit, but rested solely on the alleged insufficiency of the facts, as stated in the affidavit, to justify the allowance of the writ. 'The question thus raised, was a question not of fact, but of law. In holding, as matter of law, that the affidavit was insufficient to justify the allowance of an attachment, and in, therefore, discharging it, the court of common pleas erred. The previous exercise of discretionary power by the judge, in allowing the writ, could not properly be reviewed by that court, and its judgment was properly reversed by the district court.

Judgment of the district court affirmed.

Sutliee, Peck, Gholson and Brinkerhoee, JJ\, concurred.  