Sec. 294. When the debt has been fraudulently or criminally incurred.

It is also made a ground for issuing the writ of attachment for a defendant, where he has fraudulently contracted the debt, or fraudulently incurred the liability or obligation, for which suit is about to be or has been brought.

The writ of attachment will be issued when the defendant has fraudulently contracted a debt by an agreed claim for unliquidated damages due the plaintiff by assaulting or beating him.23 It will be issued where the action is brought for false and fraudulent representations as to the value of property; 24 and it will be issued on the ground now under discussion when the action is brought to recover money won by the defendant by means of a gaming device known as a slot machine.25

The writ will not be allowed under the ground now being discussed where the action is to recover for the bite of a vicious dog harbored by the defendant,26 nor for a cause of action arising from a malicious attachment; 27 nor for conversion by an agent in another State, of the proceeds of certain claims sent to him by a bank in this State, for collection; 28 nor where the claim arises from the liability of defendant over a contract; 29 nor in a case where the obligation was fraudulently incurred on account of a debt not yet due.30

It has been held that an offer by a debtor to make a voluntary assignment, is no evidence of fraud, warranting the writ of attachment.31 A chattel mortgage given on a stock of goods, the possession remaining in the mortgagor,

32

and the mortgagor is not required to account for daily sales, is a fraud, and the writ will lie in such case.3 Attachment upon this ground will not lie before the debt is due.33 The writ will not lie on this ground in favor of the assignee against anyone but his immediate assignor.34

Sec. 295. Fraudulent disposition of property.

35

It is also made a ground for the issuing of the writ of attachment for a defendant to be about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors. This is in the exact words of the Ohio statute, and we here give the authorities in that State upon this point. It has been there held that such attachment cannot be maintained on the ground of the constructive fraudulent intent to dispose of or sell property, nor will the formation of a corporation and the transfer to it by a debtor of his property in the absence of any fraudulent design, be sufficient, nor a conveyance by a debtor whose solvency is doubtful, to his wife, without consideration, made without intent to defraud, nor will it be sufficient to authorize the issuance of the writ for a debtor to remove his property out of the county without any intent to defraud his creditors.3 38 It is not sufficient ground to authorize the issuing of a writ under this section of the statute, for a debtor to pay off creditors preferentially,39 nor that a debtor is hastening to pay off other debts.40

37

In all cases where an attachment is asked under the grounds of the statute now being discussed, the practitioner,

32 Ranney v. Nelson, 10 Okla. 675, 65 Pac. 98.

33 Jaffrey v. Wolf, 1 Okla. 312, 33 Pac. 945.

34 Thwing v. Winkler, 13 Okla. 643, 75 Pac. 1,126.

35 Hoyman v. Beverstock, 8 C. C. (Ohio), 473.

36 Union (Ohio), 76.

v. Packard, 1 C. C.

37 McFarland v. Mills, 4 W. L. B. (Ohio), 1,064.

38 McAllister v. Davy, 5 N. P. 274.

39 Morton v. Sterritt, 4 W. L. G. (Ohio), 132.

40 Morgan v. Hays, 10 W. L. G. (Ohio), 83.

in his affidavit for the attachment, must bring himself strictly within the grounds set forth in the statute, or the court will have no jurisdiction to hold the property seized, and, in cases where the attachment is sought for the reason that the defendant is about to abscond, or remove, or convert his property into money for the purpose of placing it beyond the reach of his creditors, or fraudulently and criminally contracted the obligation sued on, precise and definite allegations will be required, and both the letter and spirit of the law be satisfied, or the proceedings will be dismissed."1

Sec. 296. The attachment bond-Attorney's fee.

The order of attachment must not be issued by the clerk until an undertaking on the part of the plaintiff has been executed by one or more sufficient sureties, approved by the clerk and filed in his office, in a sum not exceeding double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay to the defendant all damages that he may sustain by reason of the attachment, including reasonable attorneys' fees, if the order be wrongfully obtained; but no undertaking can be required where the party, or parties defendant are nonresidents of the State, or a foreign corporation.42

Sec. 297. The order of attachment, its requirements and to whom directed.

The order of attachment must be directed and delivered to the sheriff. It must require him to attach the lands,

41 Gury v. Tannenwald, 18 Ohio, 481.

42 Snyder, 5,703; Wilson, 4,367; Kansas, 4,626 (1901), identical; Ohio Gen. Code, Sec. 11,821, identical. As to the measure of damages on an action on attachment bond, see Winton v. Myers, 8 Okla 421, 58 Pac. 634. As to res adjudicata, see Lane v. Lowden, 11

Okla. 61, 65 Pac. 926; Shelley v. Ziegler, 2 Okla. 729, 98 Pac. 989. As to amount of bond, see Gapen v. Stevenson, 18 Kan. 140. As to the effect of not giving bond, see Ballinger v. Lankier, 15 Kan. 1,608. The bond in cases where a resident becomes a resident, see Lanier v. Kelly, 10 Kan. 299.

non

tenements, goods, chattels, stocks, rights, credits, money and effects of the defendant in his county, not exempt by law, from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable cost of the action not exceeding fifty dollars.*3

Sec. 298. The order of attachment may be issued to different counties.

Orders of attachment may be issued to the sheriffs of different counties, and several of them may, at the option of the plaintiff, be issued at the same time, or in succession; but only such as have been executed can be taxed in the costs, unless otherwise directed by the court."*

Sec. 299. When returnable.

The return day of the order of attachment, when issued at the commencement of the action, must be the same as that of the summons. When issued afterwards, it must be twenty days after its issuance.45

43 Snyder, 5,704; Wilson, 4,368; Kansas, 4,627 (196.), identical; Ohio Gen. Code, Sec. 11,822 (1910), identical. Service on Sunday illegal. Morris v. Shew, 29 Kan. 661. Return must show attachment on the property of the defendant. Rappine v. McPherson,

2 Kan. 340. The return must show what property was levied on. Harding v. Guaranty, 43 Pac. (Kan.) 385. The release of the levy will not prevent another levy on the same property. Dolan v. Wilkerson, 48 Pac. (Kan.) 23. The writ not void because not made returnable in ten days. Raymond v. Nix, 5 Okla. 656, 49 Pac. 1,110.

44 Snyder, 5,705; Wilson, 4,369; Ohio Gen. Code, Sec. 11,820 (1910), identical; Kansas, 4,277 (1889).

45 Snyder, 5,706; Wilson, 4,370; Kansas, 4,629 (1901), identical; Ohio Gen. Code, Sec. 11,824 (1910), identical. Not void if not ordered to return same in ten days. Raymond v. Nix, 5 Okla. 656, 49 Pac. 1,110; Smith v. Peyton, 13 Kan. 362. A return one day prior to the return day does not invalidate the levy. Dunlap v. McFarland, 25 Kan. 488. Property may be described in the return by reference to the other papers. Wagstaff v. Moser, 55 Pac. (Kan.) 584.

Sec. 300. The order in which the writ is to be executed.

Where there are several orders of attachment against the same defendant, they must be executed in the order in which they were received by the sheriff.46

Sec. 301. The manner of the execution of the order.

The order of attachment must be executed by the sheriff, without delay. He is required to go to the place where the defendant's property may be found, and declare that, by virtue of his order, he attaches said property at the suit of the plaintiff; and the officer, with two householders, who are first sworn or affirmed by the court, must make a true inventory and appraisement of all the property attached, which must be signed by the officer, and householders, and returned with the order."

47

When the property attached is real property, the officer must leave with the occupant thereof, or if there be no occupant, in a conspicuous place thereon, a copy of the order. 48

46 Snyder, 5,707; Wilson, 4,371; Kansas, 4,630 (1901), identical; Ohio Gen. Code, Sec. 11,825 (1901), identical; Nebraska, 1,177 (1907), identical. The lien dates from the time the levy was made. Burnham v. Dixon, 5 Okla. 112, 47 Pac. 1,059. An amendment relates back to the time of the filing of the original petition. Symes v. Burnham, 6 Okla. 618, 52 Pac. 918; Coyle v. Nix, 6 Okla. 618, 52 Pac. 918. As to priority of the attachment lien, see Carney v. Taylor, 4 Kan. 179; Tootle v. Miner, 34 Pac. (Kan.) 401; Larrabee v. Sarks, 23 Pac. (Kan.) 598; Standard v. Lansing, 48 Pac. (Kan.) 638.

47 Snyder, 5,708; Wilson, 4,372; Kansas, 4,361 (1901), identical; Nebraska, 1,198 (1907), identical; Ohio Gen. Code, Sec. 11,826 (1910),

identical; Emerson v. Thacher, 51 Pac. (Kan.) 50; Dodson v. Wightman, 49 Pac. (Kan.) 790. As to effect of levy on wrong property, see Cole v. Edwards, 72 N. W. (Neb.) 1,045; Omaha v. Robinson, 77 N. W. (Neb.) 73; Benson v. Canfield, 89 N. W. (Neb.) 664; First, etc., v. Avery, 95 N. W. (Neb.) 622; Peckanpaugh v. Quilan, 12 N. W. (Neb.) 104. Duty as to care of property. Williams v. Swisherd, 65 N. W. (Neb.) 788. Attorney's fee allowed. Raymond v. Gree, 10 N. W. 709, 41 Am. St. (Neb.) 763.

48 Snyder, 5,709; Wilson, 4,373; Ohio Gen. Code, Sec. 11,827 (1910), identical; Kansas, 4,632 (1901), identical; Wilkins V. Tourtellott, 22 Pac. (Kan.) 11; Blake v. Rider, 14 Pac. (Kan.) 280; Westerfelt v. Hagge, 85 N. W. (Neb.) 852.