Carothers v. Click. This Court will not disturb a judgment on account of any defect in the *form of the verdict, provided the *54 intention of the jury is unequivocal and evident. In this case, we think there can be no mistake as to what the jury intended, in their original verdict. The plaintiff charged the defendants below with the commission of a trespass. They pleaded "not guilty." Issue was thereupon joined and the jury "found for the plaintiff." Although, as was urged by counsel, it is not stated as to which of the defendants they find for the plaintiff. The same objection might have been urged with equal force had there been a general verdict of "guilty." It applies to all the defendants. If, therefore, we would not have disturbed the judgment for the defective verdict, had the same not been amended, we certainly shall not under present circumstan ces. The judgment below will, therefore, be affirmed. CAROTHERS v. CLICK. Error to Muscatine. The process of attachment is merely auxiliary, and intended in certain cases to seize the property of the defendant, and hold it to abide the result of the suit. When judgment is rendered, the efficacy of the writ of attachment is expended (v). However defective, therefore, the affidavit or bond may be, upon which the writ issued, judgment will not on that account be reversed (w). (v) Elliott v. Mitchell, 3 G. 237; Bowen v. Lamb, 4 Gr. 468; Johnson & Stevens v. Butler, 1 Iowa, 459; Sackett, Belcher & Co. v. Partridge & Cook, 4 Iowa, 416; Shapleigh et al. v. Roop et al. 6 Iowa, 524. (w) A defective affidavit in an attachment proceeding may be amended, as a matter of right, before or during the trial of the cause. Rev. § 3242; Wadsworth & Wells v. Cheeney & Stinson, 13 Iowa, on p. 578; McCarn & Scott v. Scott et al. 7 Iowa, 404. Carothers v. Click. The proper mode of taking advantage of such defects, is to move, at the proper time, to quash the writ of attachment. The errors assigned are, 1. The affidavit on which the attachment was issued is not in compliance with the statute. 2. The paper purporting to be a bond by the attaching creditor is not a bond-not being sealed by the creditor and his security. 3. The process of attachment is served, not by the sheriff, but by one C. Lawson, deputy sheriff, M. Co. 4. There is no judgment rendered against the property attached, but a general judgment against the party. The affidavit stated that deponent was "apprehensive" that Carothers would dispose of his property, whereas, the statute requires him to swear that "he verily believes, &c." *55 *GRANT, for plaintiff in error. WHICHER & Lowe, for defendant in error. BY THE COURT, MASON, CHIEF JUSTICE. For the purpose of reversing the judgment below, the plaintiff in error relies, 1. Upon the fact that the affidavit which formed the basis of the writ of attachment, was wholly insufficient. From an examination of the affidavit, we are satisfied that it is so defective as to have been successfully objected to by motion to quash the writ of attachment. It forms no ground, however, for reversing the judgment. Neither would the second and third objections avail for this purpose, however valid soever they might be in an earlier stage of the proceeding. The last objection is equally unfounded, the proceedings in that respect having been strictly regular. The counsel for the plaintiff in error seem to have taken an incorrect view of the nature of the writ of attachment. It is not an independent proceeding, but one that is wholly auxiliary. Where a debtor has absconded, or is a non-resident of the Smith v. Cutler, Administrator of Cutler. territory, so that the ordinary process cannot reach his person; or where he is about to dispose of his property with intent to defraud his creditors, this remedy is given for the purpose of securing his property, and holding it within reach until the termination of the suit. It is, then, to be advertised and sold, in the same manner as though it had been levied upon by writ of fieri facias. It is, therefore, a separate proceeding, collateral to the ordinary suit, commenced by capias or summons, or (where the defendant cannot be found) by advertisement. In any of these cases, the whole object of this writ is to seize and hold the property of the defendant, or its equivalent, to abide the event of the suit. If the plaintiff recovers, the property is, by operation of law, to be considered as having been levied upon by execution. The judgment is rendered against the defendant, and the other result follows as a matter of course. No special judgment is necessary against the property, for the statute has already prescribed the consequences of the judgment. As soon as the judgment is rendered the efficacy of the writ of attachment is expended, and although the proceedings under it may have been irregular, those in the primary suit have not thereby been vitiated so as to be reached by writ of error. The judgment below is, therefore, affirmed. *SMITH v. CUTLER, Administrator of Cutler. *56 Error to Des Moines. Where the defendant pleads nil debet to an action on a speciality, the plaintiff cannot treat it as a nullity, but should demur (x). (x) The distinction between sealed and unsealed instruments abolished by the Revision, §§ 1823, 1824. So also the old forms and rules of pleading, § 2608. Smith. Cutler, Administrator of Cutler. This was an action of debt, brought by the defendant in error against the plaintiff in error, upon a note under seal. To the plaintiff's declaration the defendant files the plea of nil debet, with notice of special matter under the statute. At the February term, 1840, the plaintiff's attorney moved for a judgment for want of a plea, which motion was sustained, and judgment rendered accordingly. The errors assigned are as follows; to wit: 1. That the Court erred in rendering judgment for the plaintiff, on motion, as there was a plea on file. 2. That the plea of nil debet, filed by the defendant, was good without demurrer, even where the action was on a writing obligatory. 3. That under the statute and laws of the territory, the instrument on which the action was brought was a simple contract sui generis, and as such nil debet is the proper plea. GRIMES & WOODS, for plaintiff in error. RORER & STARR, for defendant in error. BY THE COURT, WILSON, JUSTICE. - We will first consider whether the plea of nil debet was a proper plea in this case. The statute approved January 25, 1839, sets forth that "the defendant, in all cases, may plead as many matters of fact in several pleas as he may deem necessary for his defence; or may plead the general issue and give notice n writing under the same, of the special matters intended to be relied on for a defence on the trial; under which notice, if adjudged by the Court to be sufficiently clear and explicit, the defendant shall be permitted to give evidence of the facts therein stated, as if the same had been specially pleaded, &c." Was the plea of nil debet the general issue in this case? In debt and simple contracts, or legal liabilities, the gen Smith v. Cutler, Administrator of Cutler. eral issue is nil debet. 1 Chitty's Pl. 476. There can be no doubt but that the *foundation of the present *57 action, is neither of these. It is a speciality, and the position assumed by the third assignment of errors "that the instrument on which this action was brought is a contract sui generis," is untenable. "Where the deed is the foundation of the action, although extrinsic facts are mixed with it, the defendant must plead non est factum, and nil debet is not a sufficient plea, as in debt on a speciality, on articles of agreement, or on a bail bond, &c. If in such cases nil debet be pleaded, the plaintiff should demur, for if he do not, he will have to prove every allegation in his declaration, and the defendant will be at liberty to avail himself of any ground of defence which in general may be taken advantage of under the latter plea. Chitty's Pl. 478. Although we are fully satisfied that the plea was not a good one, yet the authority cited is conclusive. The plaintiff should have demurred. The following is cited by the defandant in error, from 1 Tidd's practice, 505. "When the defendant pleads a plea, not adapted to the nature of the action, as nil debet in assumpsit, the plaintiff may consider it as a nullity, and sign judgment." This signing of judginent refers to the prac tice in many Courts of signing judgment in vacation in the clerk's office. But in the same paragraph the following is laid down: "The plea of not guilty, in an action of debt on a penal statute, is not such a nullity as will warrant the plaintiff in signing judgment. If the defendant, when under an order to plead issuably, put in a plea which, though informal, goes to the substance of the action, the plaintiff cannot sign judgment as for want of a plea. And in general, when the defendant pleads an improper plea, the safest course is not to sign judgment, but to demur, or move the Court to set it aside." In the case of Meyer v. McClean, 2 Johns Rep. 183, it was decided that "where the defendant pleaded nil debet to an action of debt, on a |