
    Mahnke v. Damon & Co. et al.
    
    In an action on an attachment hond, it is not sufficient to allege generally in the petition, a wrongful suing out of the attachment, or that there was no oause for suing out such writ.
    In such an action, the petition must ayer that the defendant had no sufficient cause for lelieving the allegations of the affidavit or petition, on which the attachment issued.
    
      Appeal from, the Scott District Court.
    
    This is an action on an attachment bond. The affidavit on which the attachment, issued, alleged, that on the belief of the affiant, the defendants in the attachment snit, were about to dispose of their property, without leaving sufficient remaining for the payment of their debts; that defendants had property, goods and money not exempt from execution, which they refuse to give, either in payment or .security of ■ said debt; and that said defendants were, by selling fraudulently to third parties, about to dispose of their property, with intent to defraud their creditors. The petition, after setting out the attachment bond, averred that there was no cause "for the issuing of said attachment; nor was there any sufficient cause for making the charge upon which the same was issued. Damon & Co. demurred to the petition, for the reason that the plaintiff did not aver that there was not .sufficient .cause for believing that plaintiff was about to dispose of bis property, &c. Tbis demurrer, was sustained, and tbe plaintiff refusing to amend, tbe suit was dismissed. From tbis judgment be appeals.
    
      W. D. Leffingwell, for tbe appellant.
    
      Cook & Dillon, for tbe appellee.
   Woodward, J.

Upon tbe question bere presented, there bas been a difference of opinion in tbe courts. Tbe subject is considered in Drake on Attachment, in sections 164 to 169, inclusive, and that writer takes tbe ground tbat tbe question of probable causéis not involved. Were tbe question unsettled, tbere might be a difference among tbe members of tbis court, but it was settled by tbis court, in the case of Winchester v. Cox and Shelley, from Polk county, at tbe June term of tbis court, in 1853, in which tbe court decided, tbat tbe plaintiff must aver tbat tbere was not sufficient cause for .believing, &c.

We are agreed in giving no weight to tbe fact, tbat section 1848, of tbe Code, uses tbe word believes ; nor tbe fact tbat section 1852, omits it.

Tbe judgment of tbe District Court is affirmed.  