Shapleigh v. Roop

Woodward, J. — The cause for an attachment is well [526] stated, under the act of 1853. But the principal objection raised is, that there are two petitions, whilst the attachment was made at the commencement of the action. The defendant urges that when the attachment is sued out in the beginning of the suit, there can be hut one petition ; and that the petition stating the cause of action, must contain the cause for the attachment, and must be sworn to. We do not so understand the law. The proceedings in attachment are but auxiliary, and tbe petition for it may be either the original petition in the action, or a separate one filed at the same time. Section 1847 of the Code does not mean that the original petition must constitute that in attachment also, when this is sued out at the commencement; but only that there must be a separate petition, if it is sued out subsequent to the institution of the action. Both methods have been practiced at tbe commencement of actions, but the better practice is to file a separate petition for attachment in all cases. The sums stated in the petition for the attachment, is in compliance with section 1849 of the Code, which requires a statement, as nearly as practicable, of tbe amount actually due, as a guide to the sheriff. And this requirement constitutes one of the reasons why the petition for an attachment, should be separate from the original petition in tbe action. It being our opinion that the court erred in sustaining the motion, we do not consider whether the plaintiff should have been permitted to amend. Judgment reversed.