delivered the opinion of the court.
Chapron & Niedelet sued Chenault by attachment in the Morgan circuit court.
The statement of the cause of action on which the attachment was founded, was in the form used in suits by petition in debt. The affidavit filed in the cause states that the affiant “verily believes that the above named John Chenault is about to remove his property out.of the State of Missouri, so as to hinder or delay his creditors.” At the return term of the writ, the defendant appeared and filed a plea in the nature of a plea in abatement, alleging “that he, the said John Chenault, did not intend to remove his property out of the State of Missouri, so as to hinder or delay his creditors.”. To this plea the plaintiff demurred., and for cause of demurrer alleged “that said plea did not deny that said affiant did believe that said defendant was about to remove his property without -the State of Missouri, so as to hinder or delay his creditors.” The court sustained the plaintiffs’ demurrer and ruled the defendant to answer over. The defendant then moved the’ court to dissolve the attachment, because there was no sufficient lawful statemént of the cause of action on which to base the attachment. This motion was also overruled, and the defendant not having answered further, the court gave judgment for the plain till’for his debt, damages and costs. The defendant
The counsel for the appellant insist that a creditor eannot sue out an attachment against his debtor on an ordinary petition in debt. The act for the recovery debts by attachment, provides that “any creditor ing to sue his debtor by attachment, may file in the clerk’s office of any county in the State, a-declaration or other lawful statement of his cause of action,” upon which an original attachment may be sued out —R. C. ’35, sec. 2. p. 76. The question here is, whether the statement used in suits by petition in debt, is such a “lawful statement of the plaintiff's cause of action” as the above section requires in proceedings by attachment. In using the .phrase, “ or other lawfuly statement of his of action,” the legislature evidently intended that an attachment might issue on other statements than the ordinary declaration. What other statement then was intended? Except the ordinary declaration, there could probably be no •statement of a.cause of action, when the suit -ufas on a bond or notej preferable to the form used’in suits by petition in debt. But the appellant insists that when an attachment is sued out on such a statement, the provisions of the law regulating suits by petition in debt, will conflict with the law regulating proceedings by attachment. There seems, however, to be no reason, for any conflict. Under the attachment law, “original writs of •attachment shall be issued and returned in like time and manner as ordinary writs of summons, and when the defendant is summoned to answer to the action, the like proceedings shall be had between him and the plaintiff as in ordinary actions on.contracts, and a general judgment may be rendered for or against the defendant” — R. C. ’35, p. 76, sec. 5. What is meant here by the term “ordinary actions?” It seems to be used in contradistinction to the extraordinary remedy by attachment, and includes actions by petition in debt, as well as actions on declarations at common law.. Both are ordinary actions in reference to our attachment law. “ When the defendant is summoned to answer the action, the like proceedings shall be had between him and the plaintiff as in ordinary actions on contracts.” If the attachment be sued
The other point insisted on by the-counsel for the ap- ■ pellant is, that the court erred in sustaining the demurrer to the plea in abatement. The counsel for the appellees insists that the plea was bad, because it did not put “issue the truth of the affidavit.” The plea states the defendant did not intend to remove. It would have been better if it had stated-that the defendant “was about to remove,” because it would have prevented all ground tor quibbling about t-he torce ot words. it, however, the defendant did not intend to remove, he was certainly not “about to remove,” or if he had been-“about to remove,?’ he m.ust have intended to remove- The terms are about equivalent in force. The plea was not then bad on this ground. But the counsel for the appel-lees insists further that the plea is bad, because “it did not deny but that the affiant did believe what he stated in his affidavit.”
The last section of the act of 1837, amendatory to the attachment law, provides that “'in all cases when- the property of any person may be attached under this act, or the act to which this- is amendatory, he may file, by himself or attorney, a plea in the nature- of a plea in abatement, putting in issue the truth of the affidavit upon- which such attachment was sued out, and if the issue of- fact be found for the plaintiff, the cause shall proceed as other causes in attachment; but if said issue be found for defendant, the suit shall be dismissed at the cost of the plaintiff” — Acts of 1837, p. 9; It is not then the truth of the belief of the affiant which is to be- put in issue,but the truth of the affidavit. The affidavit in- this case states, that the affiant “verily -believes that the above named John Chenault is about to remove his-property out of the State.” Whether the affiant really believes-this- affidavit true or false, is a matter wholly immaterial,.