Page:Federal Reporter, 1st Series, Volume 8.djvu/29

Pebbt and others �V. �Shabpe and another. ���4 ���tEtLZt p. BHAiaFE. iii ���Civil Action at Law. Upon motione to dis- miss attachments. ���In Eq^uity. TJpon motion to dissolve injunction. �{Oircuit Court, 8. D. Ohio, E. J). July 23, .1381.) �Action pob Dbcbit — Attachment— (1) Jorisdiction — Dependant Summonbd m Anothbb Countt— Sections 5031, 5038, Ohio Rev. St.— (2) Ordbb o» Attachment— Allowancb By Jcdge— Section 5565, Omo Rev. St.— (3) At- TACHma GooDS Alebadt m Sheeipp'b Hands Undbb Execution— (4) Dis- MissiNG Attachmbnt UPON Ex Pabtb Testimont whbn Gbound op Attach- �UBNT AL80 BaSIS OP THE ACTION — PbACTICE. �PlaintifEs flled a petition ip the common pleas court of Falrfleld county, Ohio, alleging that upon the faith of certain f alae and fraudulent misrepre- gentations, made by defendants to them, they gave defendant P. a line of credit for a large stock of goods which they sold him ; that, subsequently, defendant S. obtained a judgment by confession againat P., upon certain notes \rhich P. had given to S. as a part of the f raud j and le vied executions upon P. 's stocli of goods in Lancaster, Fairfleld county, Ohio, for about the full value thereof; that about the time said executions were levied they discovered the fraud, and immediately notifled P. of • the rescisaion of the contract of sale and credit, and offered to return the notes, etc. , given therefor, and demanded a retiirn of their goods, which was ref used ; and claiming damages for such deceit. Plain- tifEs also flled an affldavit for an attachment, chafging thai the debt was fraud- ulently contracted ; that the defendants are about todispose of,'atid that P. had disposed of a part of, his property in fraud of bis crediiors. Summonses and orders of attachments were issued against both defendants ; against P. to the sherifE of Fairfleld county, and against S. to the sherifiE of MOntgomery county. Both summonses were returned served, and P.'s stock of goods was attached under the former, and property of 8. under the latter, order. After- wards, upon petition of plaintifls, the cause was removed to this court. Upon motions to dismiss the attachments — �Eeld, (1) that under sections 6031 and 5038, Ohio Rev. St., the action was prop- erly brought in Fairfleld county, and S. was rightly summoned in Montgomery county. �(2) That the order of attachment did not require the allowanee of a judge, as .re^uired by section 5565, Ohio Rev. St., when the action la brought before the claim is due. �(3) That the sherLff could levy the order of attachment upon' the goods already in his hands, by virtue of a le^y under a prior execution. �Locke V. Butler, 19 Ohio St. 56T, distinguished. �(4) That upon a motion to dismiss an attachment, upon eX parte testimony, the court will not decide whether the evidence preponderates for or against the truth of the charges upon which the attachment is founded,- where those charges constitute the ve^ymatter upoa w.luch the action is based, — the sole issue between the parties,— and which the plaintifls are c^titled ultimately to have submitted to a jury. But thecdurt will consider such testimony. to ascer- �♦Bepoited by J. C. Harpor, Esq., of the Cincinnati bar. ��� �