Page:Federal Reporter, 1st Series, Volume 8.djvu/36

 22 FBDEBAL BBPOBTISB. �summoned. The petition charges him jointly with his co-defendant, and nothing appears upon the pleadings inconsistent with such a claim. �It is not relevant to say that he was not a joint debtor with Pierce for the priee of the goods, on the contract of sale ; for the action is not brought to recover on that contract. It is an action for damages on account of an alleged deceit, the wrong complained of being laid as committed by the defendants jointly. This objection is over- ruled. �(2) The next proceeds upon the same misconception. It is that the order of attachment was improperly issued, without the allowance of a judge, as required by section 5565 of the Revised Statutes, the action having been brought before the claim was due. But the claim sued on was not for the price of the goods upon the contract of sale, but for damages occasioned by the alleged deceit. �(3) It is further urged, as a fatal objection to the order of attach- ment, that a levy under it cannot be made upon goods already in the hands of the ofScer by virtue of a levy of an execution. This applies only in Pieree's case, and does not go to the regularity and validity of the order of attachment, but only to that of its service by levy upon the goods previously taken in execution by the sheriff. �But there does not appear to be any reason in the nature of the case, nor any statutory provision, which prevents the sheriff from levying an order of attachment, properly directed to him, upon goods already in his hands by virtue of a levy under a prior execution. There is no more difficulty in this case than in the levy of two or more executions of different dates, or of several successive orders of attach- ment, against the same debtor upon the same property. The case of Lake V. Butler, 19 Ohio St. 587, referred to in argument, was the case of an attempted levy by one ofEcer of an order of attachment upon property in the custody of another officer under other process, where it was held that the levy of the attachnaent could only be made by reg- ular garnishment. �(4) The motion is further founded on the ground that the charge of misrepresentation and deceit is untrue. A large amount of testi- mony upon the merits, in the shape of affidavits, pro and con, bas been taken, To dismiss the attachment on this ground involves a decision based upon ex parte testimony of the very matter which must ultimately be passed upon by a jury. If the plaintiffs shall eventually succeed in obtaining a favorable verdict, that will deter- mine also that they were entitled to the provisional remedy by virtuei ��� �