By the judgment of reversal, the circuit court -declared that the undertaking for the discharge of the attachment and the garnishee is not in compliance with the statute, and for that reason the court of common pleas erred in approving it and ordering the discharge of the garnishee.
The provision for the -discharge is Section 5545, Revised Statutes, which reads:
“If the defendant, or other person on his behalf, at any time before judgment,-causes an undertaking to be executed to the plaintiff, by sufficient surety resident in the county, to be -approved by the court, in double the amount of the plaintiff’s claim as stated in his affidavit, to the effect that the defendant shall perform -the judgment of the court, the attachment shall be discharged, and restitution made of any property taken under it, or the proceeds thereof; and such undertaking shall also discharge the liability of a garnishee in the action, for any property of the defendant in his hands; * * *”
It is the claim of the plaintiff in error that the undertaking is not required to be -conditioned strictly according to the language used, and that while the statute provides that such undertaking shall be “to t'he effect that the defendant shall perform, the judgment of the court “ it means only -that the- defendant giving, or on whose behalf the undertaking is given, will perform the judgment of the court' against him or it, if one should be rendered.
This must have been the view taken by the -court of common pleas when it approved the undertaking in this ease, because it -is not conditioned as the words of the statute require, but binds t'he obligors, that the American Cigar C-o.,. on whose behalf it was *578executed, "perform Liu judgment of the courL in this action against it, said Ameñcan Cigar Co.”
To determine which of the lower courts is right in its construction of the statute requires attention to the nature of the suit brought, but more especially to the affidavit upon which the attachment issued.
The defendants were sued jointly by the plaintiff, and if we Iook into his petition, we may find that the liability of the defendants as asserted is not strictly a joint liability; yet' the averments are such that he might have a joint recovery, or a recovery against one of the defendants, as the facts may warrant on trial of t'he case.
However, we do not determine questions arising ora attachment proceedings by the allegations of the petition alone; but we look to the affidavit filed upon which the attachment is ordered, or garnishment made.
This is in accordance with the language of the statute quoted, because the undertaking shall be “in double the amount of the plaintiffs claim as stated in his affidavit,” etc.
When we turn to the affidavit filed in this case, we see that it asserts a'claim against both defendants, who are foreign corporations and non-residents of Ohio, and “that George W. Poor has property of said defendants, consisting of money due the said companies from the said George W. Poor, on account of goods sold and delivered to him by the said companies, and that the same is subject to attachment and garnishment in this action.”
Another important feature of the case deserves attention here. The garnishee, Poor, answered in substance that he purchased the goods from the Ilavana-American Co., who delivered .them to him, and that he owed therefor the sum stated in his answer. He said nothing about the American Cigar Co. as his creditor, and the Havana-American Co. is not a party to the undertaking nor did it give one of its own.
On this condition of the case and at this stage of the proceedings, what right had the American Cigar Co. to give the undertaking in question and have the garnishee discharged ?_
The general effect of the undertaking is to restore to the party giving it the property attached or its proceeds, if it has been sold, and that the garnishee be discharged from further liability.
It is true that in this ease, when the undertaking on behalf of the American Cigar Co, was approved, the order of discharge was *579made as to that company, and that Poor, as garnishee, was discharged “from further liability herein as to any property or money of said American Cigar Co. in his possession.” But who had determined to whom his indebtedness runs ? He owed but one debt, and it was not due to both. He is not liable to both companies.
As we understand the record and statements of counsel, the case has not yet been heard on the merits, and it has not been decided by either court' or jury whether the plaintiff has a right to recover 'jointly of the defendants, or’ of either of them. And the question recurs, What right has the American Cigar Co., in advance of such decision, to gain possession of the money owing by the garnishee to one or the other of the defendants and take it out' of court on the giving of the undertaking under consideration?
It is apparent from the record, that while the American Cigar Co. submitted itself to the jurisdiction of the court of Common pleas, by a motion and perhaps otherwise, the other defendant has not done so, and that service by publication alone has been obtained over it. And that form or kind of jurisdiction depends on the seizing or garnisheeing of property, money, etc., within the jurisdiction of the court from which the writ issued. With the subject matter of the attachment or garnishment discharged by the undertaking for that purpose, there is nothing left upon which to acquire and hold jurisdiction over the Havana-American Co., unless it is contemplated by the order of the common pleas that the garnishee may be compelled to pay his indebtedness twice; once to the American Cigar Co. which has beeen done, and again to the Havana-American! Co. in case the plaintiff should recover against it.
The scene is not improbable that on trial of the merits of the action the finding may be only against the Havana-American Co. How could the court enf orce it ? It could render no personal judgment beyond the amount due from the garnishee. He has been discharged from further liability as to what he owed the American Cigar Co., but under guise of that proceeeding he has paid all he owes on his purchase into the court and by virtue of the undertaking, the American' Cigar Co. has taken, or can take the money. Shall he pay again in case the plaintiff shall recover of the’other company? That would be high-handed injustice; but just such a paradox is probable, if the order of the court of common pleas is to stand. The court would undermine its own jurisdiction, and be*580come powerless to enforce 'any judgment against tlie Havana-American Co. Can the court order the American Cigar Co. to pay back into the court the money garnisheed? No; because it obtained possession under the order of that court, which would he a good answer to such an order. The statute intends to prevent such probable complications, and keep the wajr clear for the court to enforce the judgment it may finally render.
We do not intend to say, that in a proper case 'and on a proper showing, one of several defendants may not have an attachment-discharged from his separate property by giving the statutory bond. But no such case is present in the record. No separate interest in the funds garnisheed was disclosed; no showing was made of a right to any part of it. The American Cigar Co. constituted itself sole arbiter, and obtained practically and in effect the entire subject matter of garnishment.
If the defendants, or one of them, in advance of any determination of their joint or several liability; and in advance of any determination as to whose property ought to remain under the lien, desire to step in and procure a discharge of'the 'attachment, or the garnishee, it is -but fair that the undertaking shall be as the law requires — to perform the judgment of the court when the case has been heard on it's merits.
. Where property has been seized or garnisheed, in order to avoid and prevent possible, and probable complications in carrying into execution, a judgment against one or more defendants, if one should be obtained, and to continue the jurisdiction of the court first 'acquired, until the right's of all the parties are adjusted, our statute has in very plain language provided that the undertaking shall bind the obligors to perform the judgment of the court. If they fear to do this, the defendant, or defendants, can await the final judgment.
There is. no argument in the fact that the statute uses the words "the defendant or any one on his behalf,”' etc., and, “defendants shall perform t'he judgment of the court,” etc.
By virtue of Section 4947 of Revised Statutes, it is said, “and words in the plural include the singular, 'and in the singular include the plural number,” etc.; and the section authorizing the discharge of an attachment is to be construed in reference to this rule established for the “interpretation of words.”
*581A majority of the court concur in the judgment of the circuit court and it is affirmed.
Judgment affirmed.