
    *Richard Harrison and Thomas Wiley v. King, Carey & Howe.
    1. While good practice requires that, upon an application for an order of attachment to a court or judge in an action for a debt not due, the affidavit should set forth the facts and circumstances, and not merely the words of the statute, yet, if a court or judge think proper to act upon an affidavit stating the ground for an attachment, substantially in the language of the statute, it is a matter of form or practice not affecting any substantial right of the defendant, and not a proper cause for reversal upon a petition in error.
    2. Upon like principle would stand any variation from • the language of the statute which did not affect the substance of the particular ground upon which the order of attachment was granted.
    3. The affidavit and order of attachment constitute no part of ,the pleadings in the action, and the grounds for an attachment should not be stated in the petition. This rule applies as well in case of an action for a debt not due as in other actions.
    4. The proper mode for the defendant to meet the charge made in an affidavit for an attachment is by motion. In a like mode, a subsequent attaching creditor should be heard as to any question of priority between him and the plaintiff. He can not properly be made a party in the action on the ground of an interest acquired by the levy of his order of attachment upon the same property upon which the attachment of the plaintiff has been levied. If he be improperly made a defendant, there is no error in dismissing him from the action.
    5. A court of error, before reversing the decision of an inferior court upon a question of fact involved in a motion to discharge an attachment, should be satisfied that it was clearly erroneous.
    Petition in error. Reserved in the district court of Belmont county.
    An action was brought by King, Carey & Howe, in the court of common pleas of Belmont county, against Richard Harrison and Thomas Wiley, on the 11th February, 1854, upon a note signed “ Richard Harrison & Co.,” due March 27,1854, for $1,404, payable to King, Carey & Howe. The petition stated that Harrison and Wiley signed the note as partners, under the style of Harrison & Co.
    At the time the action was brought, an application for an order of attachment was made and allowed, and an *order of attachment issued, but against Richard Harrison only. The ground of attachment as shown in the affidavit filed with the petition was “ that the said Richard Harrison is about to remove his property, or a material part thereof, and which will have the effect of hindering and delaying the plaintiffs in the collection of their debt.”
    There was no statement in the petition as originally filed, as tc the fact of an attachment being allowed, or as to the grounds of an attachment. There were no facts or circumstances stated in the affidavit showing how the removal of the property would hinder or delay the plaintiff, or that the removal was under such circumstances as to disclose a fraudulent intent.
    To the original petition a demurrer was filed by Thomas Wiley, on the ground that the note was not due when the action was commenced. This demurrer was sustained. The action was dismissed as to Thomas Wiley, and leave was given to the plaintiff to amend his petition.
    The amended petition of the plaintiff states the execution of the note by Harrison alone, and that Wiley was not a partner, having been fraudulently represented by Harrison to be his partner. The petition also states the ground for attachment, to wit, that Harrison was about to remove his property, or a material part thereof, to the effect of hindering and delaying the plaintiffs in the collection of their debt. Annexed to the petition is an amended affidavit, in which it is stated “that the said Harrison, at the time of the commencement of this suit, was about to remove his property to tho effect of hindering and delayingthe plaintiffs in the collection of their debt, and that the said Richard Harrison was then and now a nonresident of the State of Ohio, and that said defendant was preparing to remove his property to the effect aforesaid.” This affidavit was sworn to by the counsel of the plaintiffs.
    The next step in the proceeding was a motion by Thomas Wiley to be made a party defendant, upon the ground *that he had an interest in the controversy, which interest is stated in the motion. The interest claimed was that Wiley had obtained an order of attachment on the 13th of February, 1854, and caused it to be levied on the same property on which had been levied the attachment of the plaintiffs. The property, it was alleged, would be exhausted by the claim of the plaintiffs, if the same were sustained. It was also alleged that there was a valid defense to the action of ihe plaintiffs, the nature of which, however, was not disclosed.
    It is to be inferred from the record that Wiloy was made a defendant. He moves the court to set aside the petition and order of attachment, upon the ground of the insufficiency of the affidavit. He also files an answer which is the denial of the truth of the statement contained in the petition as the ground for an attachment.
    The plaintiffs then move the court to discharge Thomas Wiley from being a defendant, on the ground that he was improperly made a defendant, having no interest in the subject-matter in controversy between the plaintiffs and the defendant, Harrison.
    The two defendants, Harrison and Wiley, now appear and demur to the petition, upon the ground that no facts are stated to entitle the plaintiffs to sue before the note became due.
    A motion is now made on the part of the defendant, Harrison, to discharge the order of attachment, upon the ground of the insufficiency of the affidavit, and also upon the ground that the evidence in the answer and deposition of the defendant shows that the fact relied upon for supporting the attachment is not true.
    The answer and the deposition of Harrison contain a denial of the truth of the charge alleged in the affidavit of the plaintiffs.
    On the 19th of May, 1855, an order was made overruling the demurrer to the petition of the plaintiffs, dismissing Wiley as defendant, and overruling the motion of Harrison to ^discharge the attachment. To. this action of the court exception is taken, and a bill of exceptions allowed and signed. On the same day a judgment in favor of the plaintiffs in the action is entered.
    The bill of exceptions shows that on the motion of the defendant, Harrison, to discharge the attachment, his answer and deposition were read in evidence, and also the several affidavits in the case on behalf of the plaintiffs; which “was all the evidence in the cause.”
    A petition in error was filed in the district court by Richard Harrison and Thomas Wiley, and the errors assigned are:
    1. That the court erred in overruling the demurrer to the amended petition.
    2. That the court erred in overruling the motion of the defendant, Harrison, to discharge the order of attachment.
    3. That the court erred in sustaining the motion to dismiss Wiley from the ease as a party defendant.
    I. That the court erred in giving judgment against the defendant, Harrison.
    
      The questions arising upon this petition in error have been reserved from the district court to this court.
    
      B. jS. Oowen, for plaintiffs in error.
    
      O. J. Swaney, for defendants in error.
   G-holson, J.

The grounds of attachment first stated in the code apply in cases where the debt or demand for the recovery of money is due or has accrued. The mode of obtaining an order of attachment upon thosé grounds is by an application to the clerk, and filing in his office an affidavit, showing the nature of the plaintiff’s claim, that it is just, the amount which it is believed the plaintiff ought to recover, and the existence of some one of the grounds for an attachment.” As to the manner in which the ^grounds for an attachment shall be shown, the code is silent.

Prior to the adoption of the code, a plaintiff was allowed to obtain a capias ad respondendum upon grounds and in a manner very similar to those prescribed by the code for obtaining an order of attachment. The sufficiency of an affidavit for a capias ad. respondendum was very fully considered by the Supreme Court, in the case of Hockspringer v. Ballenburg, 16 Ohio, 304. It was held in that case that an affidavit substantially in the language of the statute was sufficient, although the ground stated involved a charge of an intent to defraud, and no facts or circumstances were set forth. It was strongly yet vainly pressed upon the court in that case, that no man could know as a fact another’s intent, but only the facts and circumstances which disclosed it, and that when the affidavit alleged an intent in the words of the statute, it was simply an allegation of an inference or belief.

From an examination of the code it appears that very similar grounds are stated for the provisional remedy of an order for arrest and for that of an attachment. But in the former case, after the provision for establishing the grounds, it is added: The affidavit shall also contain a statement of the facts claimed to justify the belief in the existence of one or more of the above particulars.” The very natural conclusion would follow that what was so, expressly required in the one case would' not be necessary in the other; and we believe the usual practice since the code, in ordinary actions, has been to state the grounds for an attachment, in accordance with the rule sanctioned in the case of Hockspringer v. Ballenburg. With this practico we do not think it would be proper for this court now to interfere.

But there is a class of grounds for an attachment provided by the code to which different considerations would seem to apply. In certain cases an order of attachment may be obtained in an action brought before the debt is *due. The attachment is to be granted by the court, or by a judge thereof. No specific form of showing the existence of the grounds is pointed out. In like language as in an ordinary case, the plaintiff is required to make an oath in writing, showing the nature of his claim, that it is just, when the same will become due, and the existence of some one of the grounds for attachment enumerated.” We think, however, that in this class of cases proper practice would require that something more than a mere repetition of the' language of the code should be presented to a judge. He ought to be placed in a position to act intelligently in the exercise of the power and discretion conferred by the code. A court or judge, before allowing an attachment in an action for a debt not due, might very properly require a statement of facts and circumstances, such as ordinarily evince and disclose an intent, purpose, or effect in the disposition of the property, injurious to the rights of creditors, and not act upon what might very probably bo mere relief, or an inference hastily drawn.

In the present case the affidavit certainly disclosed no such facts or circumstances,- and the order might, and we might say ought to, have been refused. But the order having been allowed, the question whether the action of the judge, in granting it, or in refusing to discharge it upon the ground of the insufficiency of the affidavit, can be reviewed or corrected, is quite different, and is controlled by other considerations. When a statement is required, in no proscribed form, as a predicate for the action of a court or judge, and as a step in a remedial proceeding, conclusive upon no right of the party, whether that statement shall be more or less definite and specific, must be regarded as a matter of practice, resting in the discretion of the court of original-jurisdiction, and not a proper subject for inquiry in a proceeding in error. The same principle applies to the variation in the affidavit from the language of the statute. While it would have been bettor to follow that language, we can not say that the difference between to *the effect of” and which would have the effect of,” is substantial and material. The gravamen of the charge is the removal of property and the consequent injurious hinderance and delay to the creditors in the collection of their debt; and we must understand the words “hinder and delay ” contained in the affidavit, as used in an injurious and not in an innocent sense. , Still less sustainable is the objection that the charge of a hinderance and delay is limited to the particular creditors, and is not extended to creditors generally. Indeed, we see no reason to suppose that a single creditor, if there were only one, is not as much entitled to protection from the fraudulent conduct of his debtor, as any number of creditors. It would bo a novel defense to a charge of intent to defraud a particular creditor, that there were other creditors whom there was no intent to defraud.

A sufficient charge, or one which must now be deemed sufficient, having been made to sustain the order of attachment, had the same remained unanswered, there are two further inquiries: 1. Who was entitled to meet and repel the charge ? 2. Whether there was error in the decision of the court as to the fact of the truth of the charge.

In the ordinary cases of attachment, the grounds upon which they are obtained constitute no proper part of, and should not be embraced in, the pleadings in the action.. Neither the affidavit nor the order of attachment are pleadings admitting of an answer. The attachment is a special proceeding ancillary to the action, but so independent of it that an order in the attachment proceeding may, when final, be the subject of a petition in error during the pendency of the action.

The mode provided for the defendant to attack the order of attachment is a motion to discharge. Upon a motion, or by an application disconnected from the pleadings in the action, other creditors having orders of attachment levied upon the property must be heard, as to any question of priority, in the satisfaction of their respective judgments. ^Inextricable confusion would result if any other course were admitted. We see no reason to suppose that a different rule applies in the case of actions for debts not due. Indeed, the code provides that the same provisions shall apply in both cases (section 236). It is true, in the latter case, the action falls with the attachment.' But the proper course to produce this result is by a motion to dismiss, and not by a defense. It is the affidavit which sustains the attachment, and not averments in the petition. In the one, most of the facts stated must be verified as a matter of knowledge; in the other, mere belief will suffice. A defective affidavit could not be sustained by statements in the petition. A defendant has, undoubtedly, the right to attack the affidavit upon motion, and there is no propriety in allowing the same thing in answer to the petition. This course is better for the defendant — ■ he can act at once if he desires to relieve his property from the levy, and is not bound to wait for the framing of an issue upon the pleadings, and, it might be, for a trial before a jury.

We are satisfied, therefore, that there was no error in overruling the demurrer to the amended petition of the plaintiffs. For like reasons, there was no error in dismissing Thomas Wiley as a defendant in the action. His only -interest was as a subsequent attaching creditor, and any question of priority between him and the plaintiffs in this action could be properly settled upon motion —a course which the code clearly contemplates. Code, sec. 225. Such an inquiry is connected with the special proceedings in attachment, instituted by the different creditors, and not with the action brought by the one who first obtains an order of attachment, and in connection with those proceedings, their respective rights ought to be adjudicated.

The right of the defendant, Richard Harrison, to move to discharge the order of attachment, is expressly secured by the code, secs. 228, 229. He had the right to move upon the insufficiency of the affidavit of the plaintiffs, or upon his own affidavit, the affidavit of others, and upon ^papers and evidence in the case. If he took the latter course, the right was given to the plaintiffs to oppose the motion by affidavits and other evidence in addition to that on which the order of attachment was made. A motion of the latter description appears to have been made and decided by the court. The bill of exceptions shows that affidavits on the part of the defendant — being his own, one in the shape of an answer, and the other of a deposition — were read, and also the original affidavit of the plaintiffs and the subsequent one of their counsel.

An examination of these papers shows that, as evidence, if they may be so called, they are of a most unsatisfactory character, bsing, for the most part, mere general statements on the one side, and as general denials on the other. The particular facts or circumstances are not disclosed, and it is difficult to ascertain how the court was able to Arrive at a satisfactory conclusion. But there was offered on both sides what the code declares, to be proper evidence, and we are called upon to review the decision of the court below as to the credibility of the witnesses and the weight to be given to their statements. We may very reasonably conclude from the different phases of the complicated controversy, bringing the parties so frequently before the court, that the judge who decided the motion had advantages in forming an opinion which we do not possess. We certainly are not in a condition to say that the decision was right, or that we would have decided in the same way; but we are equally unable to say that it was clearly erroneous. We should be able to do so, to justify a reversal of a decision, upon a question of fact, and must therefore affirm the judgment.

Brinkerhofe, O. J., and Scott and Sutliee, JJ., concurred.

Peck, J., was absent.  