(dissenting) : The defendant in error began this action against the plaintiff in error on the 6th day of January, 1896, to recover the sum of *259$1282.65 on an account for goods sold and delivered. Affidavit was filed for attachment at the commencement of the suit and attachment was issued and levied' upon property of the defendant, which was appraised at $1342.17, and was subsequently sold under an order of the court in-the proceeding for $1450.
The grounds charged in the affidavit for attachment were, that the debt was fraudulently contracted ; that the defendant had removed and disposed of and was about to remove and dispose of his property with intent to hinder, delay and defraud his creditors. Subsequently a motion was made to dissolve the attachment, which was heard and denied by the court. The acts upon which the charge of fraudulent disposition of the property was based were three mortgages made by the defendant to his wife and others, an assignment of accounts to his father, and a mortgage to an-attorney to secure fees which were to be thereafter earned by services to be performed for the defendant. By specific findings in the case, the court found these mortgages to have been fraudulently made, and that-the debt was fraudulently contracted, and denied the motion to discharge the attachment. On the 29th day of January, after the motion to discharge the attachment was denied, the court, on the motion of the-plaintiff, made an order for the sale of the property.
Thereafter the plaintiff filed an affidavit for an. order of arrest, alleging the same grounds alleged in the affidavit for attachment, claiming the $1282.65 to. be due, with interest, as in the former affidavit, and on which an order of arrest was issued for the full • amount of the debt, and requiring. the defendant to enter into bond in the sum of $2565.30, being double the amount of the claim. Under this order the defendant was arrested, and gave bail as required by the *260statute, and subsequently, upon due notice, presented to the district judge his motion to discharge the order of arrest, and assigned, as grounds for such motion, that it was improperly issued ; that it was issued contrary to and without authority of law; that prior thereto the plaintiff had had an order of attachment, and had seized goods of the defendant of greater value than the plaintiff’s claim, and had adequate security for its debt; that no proper affidavit was filed therefor ; and that the levy of attachment was a satisfaction of the debt. The motion and notice advised the plaintiff that it would be presented for hearing upon the papers in the case.
In the affidavit for the order of arrest, the proceedings under the motion to dissolve the attachment were recited as a part of the grounds for the belief of the plaintiff in the matter alleged as grounds for the order of arrest; but the attachment and proceedings thereunder, or the amount of property levied upon, or the fact that there were any claims against the property prior to the plaintiff’s lien of attachment were not mentioned. So that practically at the beginning of the action the plaintiff made use of both the provisional remedies of attachment and arrest and bail, and enforced both rights at the same time. Upon the hearing of the motion to discharge the order of arrest the plaintiff was permitted to file an amended affidavit, and in such so-called amended affidavit it admitted the validity of one of the mortgages amounting to $105 as a claim prior to the attachment lien, hence showing that the amount of the attached property, after deducting this prior lien, was not sufficient to discharge the debt, and hence, that there was some balance of unsecured claim for which an order of arrest might issue. To this permission to amend, and *261the character of the amendment, the defendant objected, and assigns this action of the court as error.
The judge also, upon hearing the motion to discharge the order of arrest, permitted the plaintiff to prove the amount of costs that had been incurred in the proceeding, amounting to some $262, including, among other items, the sum of $130.50 claimed by the sheriff for care of the goods attached. To this action of the court permitting this evidence to be used the defendant also objected and excepted, and assigns that as an error.
But the principal ground of complaint is in sustaining the order of arrest issued by the clerk for the full amount of the plaintiff’s claim, requiring therein an undertaking, in order to be discharged from custody, of double the amount of the original claim, at a time Avhen an attachment process had been issued and levied upon a sufficient amount of the defendant’s property to secure the plaintiff’s claim in the first instance.
The majority of the court, in deciding this case, held that an order of arrest and an order of attachment may both issue at the same time. At common law two such writs may be issued at the same time. But the plaintiff -was put to his election as to which' one he would enforce ; and if he elected to enforce one, he could not enforce the other until the first one had been returned and there was a record of the court showing what it lacked, if anything, before it could proceed to enforce a writ either against the property or the person of the defendant.
Paragraph 7281, General Statutes of' 1889 (Gen. Stat. 1897, cli. 1, §1, ¶4), says:
“The common law, as modified by constitutional and statutory law, judicial decisions, and the con*262■ditions and wants of the people, shall remain in force in aid of the general statutes.”
There is nothing in the code that would indicate that the legislature intended that a party should have the benefit of both of these provisional remedies at one and the same time. And it is against reason, and against common right, that a party should have a double remedy, or double security for his debt, as was given to the plaintiff in this case by the ruling of the court.
Our supreme court has twice declared that it was not contemplated by the law that a party should have double security for his claim. The court says, in its opinion, that the two provisional remedies are not necessarily exclusive of each other, because the attachment may be dissolved and the suit go on ; and that, although the attachment may be dissolved in the first instance, if the facts should warrant, an order of arrest may subsequently issue. I can see nothing in this argument to support the contention that it is lawful for a clerk of a court to issue and a party to enforce a double remedy of this kind, which would result in giving a claimant double security and in oppressing the defendant. It cannot be denominated by any other name than oppression.
The plaintiff was guilty of an abuse of the process of the court, and the court, in my judgment, abused its discretion in refusing to discharge the defendant from such order of arrest; and for such abuse of discretion the order of the judge denying the motion of the defendant to discharge the defendant from the arrest ought to be reversed, and the case remanded with directions to sustain the motion and discharge the defendant from the bail so oppressively required of him.
*263This of course would necessarily compel a reversal of that part of the final judgment of the court awarding an execution against the person based entirely upon this order of arrest, under the provisions of the statute: