#### Black *v.*Oblender.

The court of common pleas, when in session, or a judge, in vacation, has a discretionary power to dissolve an attachment under the Act of March 17, 1869 ; and the supreme court, on a certiorari, cannot pass upon the reasons which influenced the court below.

May 17, 1888.

Certiorari, No. 42, July T., 1888, to review a judgment of C. P. Lancaster Co., dissolving an attachment under the Act of 1869, which was issued by James Black et al, trustees and members of Monterey Lodge, No. 242, I. O. O. F., against Adam Oblender and P. F. Blessing, defendants, and Frank Dommet, garnishee, at Apr. T., 1888, No. 44. Trunkey and Sterrett, JJ., absent.

On April 2, 1888, the attachment was issued, the cause of action being a forfeited recognizance on an indictment against Oblender for embezzlement. The affidavit alleged an intent on the part of defendants “to dispose of or remove their property, etc., with intent to defraud, etc.” The writ was served on Blessing, defendant, and on the garnishee, and nihil habet as to Oblender. On April 7, Blessing filed a petition and affidavit denying, in detail, the fraud averred, alleging, also, that suit had been brought on the recognizance, which was still pending, and praying that the attachment be dissolved. On the same day, the motion to dissolve was argued in open court.

The further facts appear by the. opinion of the court, filed April 9, containing, inter alia, as follows, by Livingston, P. J.:

[“ In the case before us, a bond was filed on April 2, 1888, the day the writ of attachment was issued, but there is no surety in the bond nor have all the trustees signed it, nor was it ever approved by the prothonotary or any of the judges of the court of common pleas of Lancaster county, so that the writ could not legally issue, and should not have been issued, and for this reason the attachment must be dissolved: it was not issued in accordance with the requirement of the Act of 1869 and its supplements.] [2]

[“ In addition to this, the affidavit filed is defective, inter alia, in this, it commences thus: 'James Black and Michael J. Steigerwalt, Trustees, for said *plaintiff, Monterey Lodge, No. 242, Independe7it .Order of Odd Fellows, of Lancaster City, Pa.,*being duly sworn, etc., and say that Adam Oblender and Philip F. Blessing, *defendant, is*justly indebted to *plaintiff*in a sum exceeding $100; that said *340Adam Oblender was the *Treasurer*of said *defendant Lodge,*etc., .....and that the intent is to defraud their *creditor,*said Monterey Lodge, No. 242, Independent Order of Odd Fellows, etc.’ This affidavit makes Monterey Lodge, No. 242, Independent Order of Odd Fellows, both plaintiff and defendant, while the record shows-it is neither, and the affiants say *it*is the *creditor,*and not *ihey!'~\*[3]

The attachment was thereupon dissolved and the plaintiffs took this writ.

*The assignments of error*specified, 1, the action of the court in dissolving the attachment; 2-3, portions of the opinion included within brackets, quoting them ; and, 4, that the attachment should not have been dissolved without the court below having heard either oral or written testimony to sustain or impeach it.

*B. F Davis,*with him *W. D. Weaver,*for plaintiffs in error.—

The cause of action upon which the suit was founded was within the language and terms of the Act of March 17, 1869, and its supplements. It was based upon a forfeited recognizance, and was therefore a simple contract debt or obligation to pay money, and was within the affidavit of defence law. Taylor *v.*Com., 36 Leg. Int. 315; s. c. 1 Ches. Co. 263; Harres *v.*Com., 35 Pa. 416; Com. *v.*Boult, 1 Browne, 237; Davis *v.*Dolan, 1 Browne, 317.

The plaintiffs had a right to bring the suit by virtue of the Act of July 30, 1842, I Purd. 809, pi. 15.

The affidavit was in accordance with the language of the Act of'March 17, 1869, and that is sufficient. Sharpless *v.*Ziegler, 92 Pa. 467; Vansant *v.*Lunger, 15 W. N. C. 549.

The affidavit having been drawn up in the words of the Act, it was improper to dissolve the attachment without granting a hearing. The language of the Act itself requires that, on motion of the defendant, a hearing of the application shall be had, and the court has power to hear testimony to determine the truth of the allegations contained in the affidavit upon which the writ was issued. 1 Purd. 70, pi. 80; Parks *v.*Watts, 112 Pa. 4.

*Charles L. Landis,*with him *J. Hay Brown,*for defendant in error.

In this case, the record alone is before the court, from which it is to be ascertained whether there was error committed by the court below. Harres *v.*Com., 35 Pa. 416.

Section 6 of the Act of March 17, 1869, under which the process in attachment was had, gives to the court of common pleas, when in session, or to a judge, in vacation, a discretionary power to dissolve the attachment issued under its provisions, and the statute gives the supreme court no power to review the exercise of that discretion. Wetherald *v.*Shupe, 109 Pa. 389 ; see also Holland *v.*White, 2 W. N. C. 393.

If the defendant’s answer on oath positively and circumstan*341tially deny the fraud charged, the attachment will be dissolved. Gaulbert *v.*Atwater, 2 W. N. C. 644.

Oct. 1, 1888.

The argument on the merits is omitted.

Per Curiam,

There is nothing apparent in the record of this case which requires its reversal. What appears is an attachment issued under the Act of 1869, and, for cause which was no doubt satisfactory to the court, that attachment was set aside. Doubtless the court had power to do what it did; and, as the certiorari does not bring up the evidence, we are unable to pass judgment on the reasons by which it was influenced.

The judgment is affirmed.