
    
      Price & Hooe v. Bescher, Shultz & Co.
    2, Attachmeht. Ancillary. Pleas m Abatement. In this case an ancillary attachment was levied, and the property replevied. The defendants plead in abatement to the attachment, and also plead to the merits. All the issues were submitted at once to the jury, who.found for the plaintiff on the merits, but ignored the issues on the pleas in abatement. This was treated as sustaining the attachment, and judgment was rendered against the defendants and the sureties on the re-plevy bond. The judgment on the merits was affirmed; but that against tbe sureties on the replevy bond was reversed, and the case remanded, that the ignored issues on the pleas in abatement might be disposed of at another trial.
    8. Same. Same. Same, Practice. In such cases, the proper practice is, to submit to the jury the issues on the pleas in abatement separately, and before the trial of the action upon the merits; so that, if these issues be found for the plaintiff, and he afterward succeed on the merits, a complete judgment may be rendered in his favor, including an order for the sale of the property attached, or, if this were re-plevied, a judgment against the sureties on the replevy bond.
    FROM SHELBY.
    From the Law Court of Memphis, October Term, 1869. H. S. Lea, J. . •
    
      Heiskell, Scott & Heiskell for plaintiffs.
    Lewis & Craig and Edgington & Halsey for •defendants..
   Freemas, J.,

delivered the opinion of the court.

This was an action to recover $320 due upon an •account, in which an ancillary attachment was issued, upon the affidavit of the plaintiff.

A plea to the cause of action was filed, denying the indebtedness; and there were filed, also, a number •of pleas in abatement to the attachment, putting in issue the existence of the causes of attachment as alleged.

The case seems to have been submitted to the jury ■on both issues, but they have failed entirely to make any response whatever to the pleas in abatement. Their finding in favor of the plaintiffs as to the debt is not questioned, and must be affirmed. But .the judgment rendered by the court against the sureties on the replevy bond must be reversed, as the question remains to be tried, whether the party properly had any attachment. We may remark that, as we have several times held, it would have been the better practice to submit the issues on the plea in abatement to the causes of attachment separately to a jury, before the trial of the main suit, as it would have enabled the court, if the attachment were sustained, to render a complete judgment, and to order a sale of the property to satisfy the plaintiff’s debt.

The result is, that the case must be remanded, to be tried as to the issues on the pleas in abatement.

The judgment is affirmed against the original defendants.

If the issues on the pleas in abatement be found in favor of the plaintiffs, and the causes of attachment thereby established, a judgment can then be rendered against the sureties on the replevy bond.

Numerous errors are found in the charge, but as they are not likely to occur again, we need not notice them.  