■"J^Qii^iHUiW^ )fCAllFO/iV ^OFCAIIFO/?^ •AavnaiH^ ^^\^t UNIVERJ/^ ^ jjo-v «UNIVERy/A o nDNVSOl^ «UNIVERS//- o jFCAllFOfi'^ AavaaiH^^ ^tUNIVERi// njONN^-^-or tfUNr. »"i #, ^< J^ "T' p / ■■"T^ V\^ J " y -Ts — ^ V O UU- — \^ •*^ 1? CP T 7mNV sm^ ■^'c HIBRARYa i/njnv».jf\V' •?^r: A TREATISE ON ATTACHMENT AND GARNISHMENT By Rufus Waples, LL.D. AUTHOR OF A TREATISE ON PROCEEDDs-GS IN REM, A TREATISE ON Homestead and Exemption, etc. SECOND EDITlOJSr CHICAGO CALLAGHAN AND COMPANY 1895 T Copyright, 1895, BY RUFUS WAPLES. STATE JOURNAL PRINTING COMPANY, Printers and Stebeotypers, madison, m'is. 5? PREFACE. The material accumulated since the first edition was pub- lished — ten years ago — is incorporated into this, yet by con- densing the old matter, interweaving the new with it and re-arranging the chapters, the whole of the text is confined to seven hundred pages — only about a hundred more than the first edition contained. The distinguishing traits of the treatise are retained, though it has been largely rewritten and carefully revised. It could have been extended to two volumes with less tedious labor — twenty months having been devoted to the revision, to the exclusion of other em- ployment. The decisions have been closely followed, and the law presented as it has been decided. The statutes have been cited with the cases construing them, when necessary and practicable. The aim of the writer has been to make this edition a better tool for professional use in every respect. To aid in effecting this, he has improved on the former one by dividing the text into sections, with catch- words at- tached in most instances; and the index now refers to the sections. It is more minute and thorough than the first one was, and is briefly itemized so that the subject sought may readily strike the eye. In a word, it may be said that this treatise as now revised not only contains the law of Attachment and Garnishment up to the date of going to press, but that any point can be easily found. The table of cases is twice as large as the former one. Fewer authorities would have sufficed to support the prop- 740143 IV PREFACE. ositions, but it seemed advisable to cite many and leave the practitioner to make his own selection of such as are adapted to his state and most available for his purpose in practice. With these prefatory words, the writer trusts this edi- tion to the profession as the last he means to offer for ten years to come. EuFus Waples. Ann Arbor, Mich., 1895. TABLE OF CONTENTS. Sections. CHAPTER I. THE REMEDY OUTLINED 1 I. Definitiox and Distinctions 1-4 II. The Suit Against Property 5-11 III. The Right to Attach 12-18 IV. Pre-existing Liens 19-23 V. Construction 23-25 CHAPTER IL STATUTORY GROUNDS 26 L The Usual Conditions 26-31 II. Non-residency 32-43 III. Absence and Non-residence 44-49 IV. Debtors Absconding or Concealing Themselves to Avoid Process 50-56 V. Fraudulent Disposition of Property to Avoid Cred- itors 57-72 VI. Exceptional Grounds 73-76 CHAPTER III. THE PETITION AND CAUSE OF ACTION 77 L AVERaiENTS AND PRAYER 77-83 II. Amendments 84-87 III, Amendments Affecting the Defendant .... 88-91 IV. When the Petition Should be Filed 92-93 . V. AcTiON^oN Breach of Contract 94-97 VL Debt Not Due but Certain 98-100 VIL Exceptional Causes of Action 101-102 VIIL Attachments Aided by Equity 103-104 CHAPTER IV. THE ATTACHMENT AFFIDAVIT ... 105 I. The Affiant . . • 105-107 II. How the Affidavit is Executed 108-110 HI. Form and Essentials 111-114 IV. Stating the Debt 115-121 V. Laying the Grounds 122-126 VI. Information and Belief 127-131 VII. Certainty 132-134 VIIL Alternation 135-137 IX. Amendments 138-152 X. As Evidence 153-156 XI. The AFFIDA^^T Jurisdictional 157-160 VI TABLE OF CONTENTS. Sections, CHAPTER V. THE ATTACHMENT BOND 161 I. Protection to the Defendant 161-1(56 II. Necessary to the Writ 167-160 III. Execution of the Bond 170-174 IV. The Amount 175-177 V. Conditions 178-181 VI. The Principal 182-185 VII. The Surety 186-193 VIII. Amendment 194-19& CHAPTER VI. PROCESS 197 I. The Summons 197-20S II. The Writ 204-207 III. Issuance of the Writ 208-211 IV. Requisites of the Writ 212-210 V. Amendment 220-22(V VI. The Writ as to Property 227-231 VII. The Writ Protecting the Officer 232-23(> VIII. Indemnity Bond 237-245 CHAPTER VII. LIABILITY TO ATTACHMENT .... 24& I. Debtor's Property Generally 246-248 II. Partnership Property 249-254 III. Property Held by Third Persons 255-258 IV. Property in Custodia Legis 259-261 V. Property Assigned 262-266' VL Property Consigned 267-271 VIL Choses in Action 272-275 CHAPTER VIIL ATTACHING 27a L In General 276,277 II. Real Estate, how Attached 278-282 III. Personalty, how Attached 283-291 IV. Time of Seizing 292-295 V. The Officer's Duties and Liabilities 296-303 VL Wrongful Levy 304-311 \ CHAPTER IX. THE RETURN AFTER DIRECT ATTACH- MENT 812 I. Stating the Execution of the Writ 312-31T IL Description of Attached Property 318-321 III. Requisites op the Return 322-331 IV. Amendments 332-338 V. Return "Not Found" — Order of Publication . . 339-341 VI. Publication Notice 343-355' TABLE OF CONTEXTS. Vll CHAPTER X. LIABILITY TO GARNISHMENT I. Property in the Garnishee's Hands II. Credits Due the Defendant .... III. Funds Held in Trust or on Deposit, etg IV. Conditional Obligations V. Partnership Liability VI. Promissory Note VIL Non-resident Third Possessors . . . Sections. 356 3r,6-861 362-364 365-371 372-376 377-379 380-386 387-391 CHAPTER XL LEGAL CUSTODY RELATIVE TO GAR NISHMENT I. Officers of Court, etc II. Executors, Administrators, etc. . . III. AssiCiNment, Relative to Garnishment IV. Illegal and Fraudulent Assignment 393 393-402 403-411 412-422 423^27 CHAPTER XII. CORPORATIONS AS GARNISHEES ... 428 L States 428-432 II. Counties, etc. 433-438 III. Cities 439-443 IV. Private Corporations in General 444 V. Banks 445-446 VI. Insurance Co:tfPANiES 447-448 VII. Common Carriers 449-454 VIII. Corporation Servants 455-456 IX Corporation Stock 457-458 X. Corporation in Foreign State 459-463 XL Situs of Shares 464-468 CHAPTER XIIL GARNISHMENT PROCEEDINGS BEFORE THE DISCLOSURE 469 I. Nature of the Proceeding 469-480 , II. Requisites for the Issue of the Writ .... 481-486 IIL Tme Interrogatories 487-491 IV. Service and Return 492-498 V. Default 499-502 CHAPTER XIV. THE GARNISHEE'S DISCLOSURE ... 503 I. Exceptions by the Garnishee 503-506 IL Requisites of the Answer 507-513 IIL The An'swer Taken as True 514-519 IV. Defenses Stated in the Answer 520-529 V. Defense for Absent Defendant 530-532 VI. Amended Answer 533-538 VIL Traverse of the Answer 539-551 VIIL The Charging Order 552-553 Vlll TABLE OF CONTENTS. Sections. CHAPTER XV. THE PROPERTY IN COURT 554 I. Custody by the Sheriff 554-561 II. Keepers or Receiptors 562-572 III. Defendant Holding under the Sheriff .... 573-576 IV. Receivers 577-578 V. The Garnishee's Possession 579-587 VI. Sale of Perishable Goods 588-592 VII. Loss of Custody 593-595 CHAPTER XVI. JURISDICTION 596 I. Degrees of Authority at Different Stages of the Suit 596-605 II. Jurisdiction Over the Debtor 606-614 III. Jurisdiction Over the Debtor's Property . . . 615-624 IV. Statutory Requisites Jurisdictional 625-634 V. The Court's Authority Special 635-643 VI. Territorial Limits 644-653 VII. Jurisdiction in Garnishment 654 CHAPTER XVIL ATTACHMENT PROCEEDINGS IN COURT I. Special Appearance of the Defendant .... II. General Appearance HI. Withdrawal of Attorneys — Effect on Previous Appearance IV. Proceedings to Vacate Attachment — In General . V. Quashing for Errors Patent 683-699 VI. Dissolution on Evidence Beyond the Record . . 700-710 VII. Traverse After Dissolution by Bonding .... 711-718 CHAPTER XVIII. EXEMPTION — RELATIVE TO ATTACH- MENT AND GARNISHMENT 719 I. Execution and Attachment 719-723 II. Claiming Before the Levy 724-72G IIL Claiming in Court 727-728 IV. Claim Must be Before Judgment 729-730 V. Claiming Before Sale 731-735 VI. Homestead Not Dedicated After Attachment . . 736 VII. Garnishment as to Claim of Exemption .... 737-742 VIII. Garnishment in a Foreign State 743-745 CHAPTER XIX THE DEFENDANT'S BONDS .... 746 I. The Forthcoming Bond 746-761 II. The Dissolution Bond 762-769 III. Bond Sureties 770-777 655 655-663 664-668 669-671 672-685 TABLE OF CONTENTS. IX S€ctioixs* CHAPTER XX. THE CREDITOR'S CONTESTS WITH THIRD PARTIES 778 I. Intervention, in General 778-789 IL Junior Attachers 790-798 II' Priority of Seizure 799-806 IV Priority of Garnishment , 807-813 V. Simultaneous Attachment 814-815 VI. Claimants 816-826 VII. Competition with Mortgagees 827-839 VIIL Competition with Assignees 840-847 CHAPTER XXI. RIGHTS OF PURCHASERS 848 L Buying Before Levy op Attachment 848-855 IL Before Amendment of Defects 856-863 IIL Purchase at Attachment Sale 863-867 IV. No Warranty of Title 868-870 V. Judgment Owners' Sales as to Warranty— Dif- ference Between Them and Attachment Sales . 871-872 VI. General Liabilities of Sellers 873-875 CHAPTER XXII. JUDGMENT 878 L Default 878-880 IL Judgment Nisi 881-886 III. Final Judgment 887-892 IV. Perfecting the Lien 893-904 V. Appeal 905-907 VL Attachment Sale 908-914 VII. Distribution 915-916 VIIL JUDGilENT FOR DEFENDANT 917-920 CHAPTER XXIIL FINAL JUDGMENT AGAINST THE GAR- NISHEE 921 I. In General 921-925 IL When Void or Voidable 926-931 IIL Interest, when Chargeable 932-936 IV. Costs, Fees and Compensation 937-943 V. Garnishment in Execution 944-950 VI. Garnishee's Plea in Defense of Subsequent Suit by THE Attachment Defendant 951-954 ML What Judgment is a Bar to Subsequent Action . 955-963 VIIL Subsequent Suits by Garnishors and Others Against Garnishees 964-967 CHAPTER XXIV. SUITS AGAINST THE ATTACHING OF- FICER 968 L In General 968-976 IL Suit on the Sheriff's Bokd 977-981 IIL Replevin Suit Against the Officer 982-192 3;; TABLE OF CONTENTS. Sections. CHAPTER XXV. DAMAGES AGAINST THE PLAINTIFF FOR WRONGFUL ATTACHMENT 99^ L RECONVENTION S^^ ^^ IL Suit After Dissolution -^'^'^ '■^^■^ IIL The Bond Obligation 1003-1006 rv. Suit on the Attachment Bond 1007-1017 V. ExEMPLAKY Damages • 1018-1026 VL Recovery of Costs and Fees 1027-1035 INDEX ^^^' ''' TABLE OF CASES. TJie references are to ^Kiges. A. Abbott V. Davidson, 193, 193, 305. Abbott V. Seiiiple, 586. Abbott V. Sheppard, 422, 434. Abbott V. Smith, 297. Abbott V. Stinchfield, 299, 634. Abbott V. Wlnpple, 681. Abbott V. Wilson, 515. Abell V. Simon, 357. Abels V. Insurance Co.. 214. Abels V. IMobile Real Estate Co., 329. Abernathy v. Ai'mstrong, 48. Abernathy v. Whitehead, 559. Abraliam v. Davenport, 495. Abraham v. Nierosi, 31, 431. Abrams v. Johnson, 22. Accessory Co. v. McCurran, 12, 675. Achelis v. Kahnan, 94. Ackley v. Chamberlain, 4, 504. Ackroyd v. Ackroyd, 74, 87. Acme Lumber Co. v. Shoe Co., 347. Adair v. Stone, 77. Adam v. Gomiia, 698. Adams' Appeal. 294. Adams v. Abram, 238. Adams v. Aver3% 259. Adams v. Balch, 395. Adams v. Barrett, 271, 292, 316, 385. Adams v. Basile, 234. Adams v. Bushey, 512. Adams v. Cordis, 632. Adams v. Evans, 27. Adams v. Filer, 644. Adaros v. Fox, 402. Adams v. Gillam. 657. Adams v. Hackett, 639. Adams v. Milliard. 96. Adams v. Jacoway, 143. Adams v. Kellogg, 101, 147. Adams v. Kibler, 594. Adams v. Lane, 288. Adams v. Lockvvood, 215. Adams v. Merritt, 115. Adams v. Newell, 507. Adams v. Penzell, 388, 637. Adams v. Robinson, 300. Adams v. Scott, 324. Adams v. Speelman. 213. 313, 317. Adams v. Willimantic Linen Co., 305. Adams Express Co. v. Hill, 45, 62. Adanison v. Jarvis, 174. Adkins v. Saxtou, 183. Adler v. Anderson, 541. Adler v. Baltzer, 493, 623. Adler v. Ecker, 303. Adler v. Roth, 10, 13, 306, 395, 403, 620. Adoue V. Jemison, 209. Adoue V. Seligsou & Co., 36, 371, 559. Aflfeld V. People, 132. Agnevv v. Leath, 517. Agnew v. Waldeu, 503. Agricultural Ass'n v. Madison, 82, 83. Ah Thaire v. Quan, 684. Abern v. Purnell, 581. Aikwith V. Allen, 43. Alabama, etc., R. Co. v. Churabey, 334, 453. Alabama Land Co. v. Reed, 681. Alamo Ice Co. v. Yancey, 630. Albachten v. Chicago, etc., R. Co., 051. 'Albany City Ins. Co. v. Whitney, 531. Albee v. W^ard, 442. Albee v. Webster, 225. xu TABLE OF CASES. The references Albertson v. Eclsall, 465. Albrecht, In re, 528. Albrecht v. Long, 547. Albrecht v. Treitschke, 499, 507. Aldrich v. Arnold, 570. Aldrich v. Brooks, 262. Aldrich v. Etna Co., 643. Aldrich v. Wallace, 182. Aldrick v. Woodcock, 413. Alexander v. Abbott, 254. Alexander v. Brown, 465. Alexander v. Denaveaux, 83, 398. Alexander v. Haden, 93. Alexander v. Harrison, 690, 691. Alexander v. Hutchinson, 688, 689. Alexander v. Jacob, 534. Alexander v. Jacoby, 491, 680. Alexander v. King, 548. Alexander v. Lloyd and Insurance Co., 353. Alexander v. Perdue, 130. Alexander v. Pollock, 509. Alford V. Cobb, 91. Alfred v. Bray, 224. Allard v. De Brot, 626. Alleghany Savings Bank v. Meyer, 384. Allen V. Bank of Key West, 467. Allen V. Blunt, 440. Allen V. Brown, 115. Allen V. Butler, 400. Allen V. Carty, 402. Allen V. Center Valley Co., 305. Allen V. Clayton, 605. Allen V. Coates, 463. Allen V. Doyle, 402. Allen V. Eldridge, 43. Allen V. Erie Bank, 200, 475. Allen V. Fleming, 93, 196. Allen V. Fox, 682. Allen V. Fuget, 50. Allen V. Gilliland, 620. Allen V. Hall, 371, 373. Allen V. Hammond, 592, 594. Allen V. Hazen, 363. Allen V. Kinyon, 104. Allen V, Kirk, 223. Allen V. Lee, 86. are to pages. Allen V, McCalla, 220, 334, 263. Allen V. Megguire, 371. Allen V. Morgan, 371. Allen V. Russell, 886. Allen V. Watt, 379. 644. Allen V. Wright, 391. Allerton v. Eldridge, 518. Alley v. Daniel, 498. Alley V. Myers, 544. Allison V. Graham, 309. Allison V. Wilson's Ex'rs, 293. Allman v. Owen, 637. Allyn V. Willis, 195. Almy V. Thurber, 383, 403. Alsbrook v. Hathaway, 72. Alsdorf V. Reed, 270. Alston V. Clay, 385. Alston V. Newcomer, 38, 33. Alsup V. Jordan. 498. Alter V. Brooke, 276. Altmeyer v. Caul field, 78, 86. Alves V. Baker, 298. Alves V. Barber, 570. Anibach t. Armstrong, 478. American Bank v. Indiana Banking Co., 630. American Bank v. Rollins, 645. American Bank v. Snow, 389. American Bank v. Voisiu, 150, 591. American Button-hole Co. v. Burgess, 364. American Ex. Bank v. Morris C. & B. Co., 12. American Express Co. v. Judge of Wayne Co., 428. American Express Co. v. Smith, 197. American Ins. Co. v. Hettler, 117. American Land Co. v. Grady, 77. Amos V. Alluut, 137. Amoskeag Co. v. Gibbs, 278. Amy V. The Supervisors, 669. Anderson v. Assurance Co., 331. Anderson v. Coal Co., 111. Anderson v. Coburn, 16, 347, 433, 436, 437, 445, 457, 585. Anderson v. Doak, 186. Anderson v. Fitzpatrick, 181. Anderson v. Goff, 431, 607. TABLE OF CASES. XIU Tlie references are to ixiges. Anderson v. Graff, 341. Anderson v. Johnson, 103, 431, 472, 603. Anderson v. Land, 547, 614. Anderson v. Odell, 494, 505. Anderson v. O'Reilly, 49. Anderson v. Patterson. 50. Anderson v, Roberts, 577. Anderson v. Scott, 328, 329, 335, 237, 244. Anderson v. Shaffer, 440. Anderson v. Sutton, 80. Anderson v. Wanzer, 363. Anderson v, Wehe, 90, 91, Andre v. Fitzhugh, 520. Andrews v. Glenville Woolen Co., 680. Andrews v. Herring, 304. Andrews v. Kaufmans. 544. Andrews v. Ludlow, 199, 256, 270, 505. Andrews v. Mundy, 26. 184, 460. Andrews v. Ohio R R. Co., 251, 252. Andrews v. Powell, 651. Anerbach v. Hitchcock, 16. Anet V. Albo, 491. Angier v. Ash, 539. Anter v. Steamboat, 108. Anthanissen v. Towing & Wrecking Co., 288, 395. Anthony v. Comstock. 399. Anthony v. Wood, 201, 570, 571. Applegate v. Lexington, etc.. Mining Co., 603. Apijleton V. Speer, 476. Applewhite v. Mill Co., 516, 565. Archer x. Claflin, 98. Archer v. Noble, 170, 225. Archer v. Savings Bank, 258. Argyle v. Dwinel, 208. Arlege v. White, 260. Armor v. Cockburn, 257. Armour Bank Co. v. Smith, 214. Armour Banking Co. v. St. Louis N. Bank, 329. Armstrong v. Cook, 485. Armstrong v. Heritage, 355. Armstrong v. Tuttle, 641. Arnold v. Nye, 165, 254, 428. Arnold v. Patrick, 617. Arnold v. Weimer, 572. Arrington v. Screws, 186. Arthur v. Hale. 639. Arthur v. Israel. 357. Ash V. Aiken, 291, Ash V. Calhoun, 291. Ashby T. Watson, 363. Ashland Bank v. Mead, 577. Ashley v. Wright, 568. Ashmun v. Williams, 213. Askew V. Stevenson, 479. Atcheson v. Smitli, 341, 377, Athanissen v. Towing & Wrecking Co., 143. Atherton v. Fowler, 196. Atkins V. Kinnan, 16. Atkins V. Prescott, 277. Atkins V. Swope, 395, 672, 675. Atkins V. Womeldorf, 113, 164, 166, 481. Atkinson v. Foxworth, 520. Atkinson v. James, 162. Atkinson v. Wiggins, 336. Atlantic Ins. Co. v. McLoon, 70. Atlantic Ins. Co. v. Wilson, 363. Atlantic & Pac. R. R. Co. v. Hopkins, 437, 639. Atlas Bank v. Nahant Bank, 544. Atlas Furniture Co. v. Freeman, 99. Atwell T. Wigerson, 236. Atwood V. Dumas, 330. Atwood V. Hale, 259. Audenreid v. Hull, 461, 612. Auerbach v. Hitchcock, 50, 04, 103, 434. Aultman v. Baggs, 59. Aultman v. Stinan, 457. Aultmeyer v. Caulfield, 15. Aurora City v. West, 501. Austin V. Bodle, 451. Austin V. Bodley, 422, 434. Austin V. Burgett, 1S4, 491, 520, 523. Austin V. Burlington, 64. Austin V. Grout, 75. iVustin T. Latham, 81. .A.ust.in V. Stanley, 504. XIV TABLE OF CASES. Tlie references are to pages. Averill t. Loucks, 48. Averill v. Tucker, 289, 308, Avery v. Good, 244. Avery v. Lackland, 299. Avery v. Perry Stove Co., 193. Avery v. Stephens. 10, 504. Avery v. Zander, 89. Avet v. Albro, 514, 516. Axman v. Dueker, 355. Axtell v. Gibbs, 347, 376. Ayer v. Brown, 508. Ayres v. Harness, 515. Ayres v. Husted, 74. B. Babb v. Elliott, 203. Babbitt V. Doe, 238, 254. Babe v. Coyne, 169. Bachelor v. Bachelor, 251, 253. Bacher v. Morris, 418. Bacher v. Shawhan. 245. Bachman v. Lewis, 77. Backus V. Kimball, 92, 421. Bacon v. Daniels, 399, 529. Bacon v. Home, 194. Bacon v. Leonard, 206, 244, Bacon v. Stone, 42. Bacon v. Thompson, 562. Badlam v. Tucker, 268, 395. Baer v. English, 329, 366. Baer v. Otto, 486. Baere v. Armstrong, 144. Baesker v. Picket, 499. Bagley v. Tate, 534. Bagley v. Ward, 12. Bagley v. White, 403, 427. Bailee v. Mosher, 509. Bailey v. Adams, 220. Bailey v. Beadles, 88. Bailey v. Childs, 213. 214. Bailey v. Leather Co., 129. Bailey v. Nat. Bank, 113. Bailey v. New York Central R. Co., 320. Bailey v. Smith, 165. Bailey v. Smock, 58. Bailey v. Valley Bank, 150. Baily v. Lacey, 641. Baily v. Myrick, 252. Baily v. Wright, 219. Bain v. Mitchell, 67. Bainbridge v. Alderson, 27, 30, 346. Baines v. J.emison, 449, 682. Baines v. Ulman, 166, 688, 695. Baird v. Georgia Pac. R. Co., 129. Baird v. Rice, 240. Baird v. Trice, 504. Baird v. Williams, 469. 547, 549. Baker v. Avers, 61, 157. Baker v. Baker, 211. Baker v. Central Vt. R. Co., 632. Baker v. Eglin, 257, 262, 267. Baker v. Hunt, 80. Baker v. Lancashire Ins. Co., 637. Baker v. IMoody, 300. Baker v. Morrison, 513, 516/ Baker v. Railroad Co., 634. Baker v. Warren, 401, 403. Baker's Estate, 30a Baker Wire Co. v. Kingman, J.12, 116. Balch V. Patten, 72. Balder v. Cohen, 556. Balderstone v. Manro, 298. Baldwin v. Conger, 227, 241. Baldwin v. Cooper, 472. Baldwin v. Ferguson, 96, 130, 255, 276, 359. Baldwin v. Flagg, 25, 27, 28, 187. Baldwin v. Jackson, 213, 404, 427. Baldwin v. McClelland, 458. Baldwin v. Morrill, 388. Baldwin v. Mumford, 674. Baldwin v. Murphy, 463. Baldwin v. Walker, 32, 687, 690, 696. Baldwin's Appeal, 355. Balkum v. Reeves, 631, Balkum v. Strauss, 631. Ball V. Badger, 176, 656. Ball V. Citizens' Bank, 369. Ball V. Claffin, 399, 540. Ball V. Gardner, 144. Ball V. Gilbert, 273. Ball V. Liney, 170. Ball V. Young, 277, 345. TABLE OF CASES. XV The references are to pages. Ballard v. Great Western Co., 15, 563. Balliet v. Brown, 258. Balliet v. Scott, 301. Ballinger v. Lautier, 34. Balston Spa Bank v. Marine Bank, 328. Baltimore v. Root, 316. Baltimore Bank v. Teal, 59. Baltimore & Ohio R. R. Co. v. Galla- hue, 284, 310, 319, 463. Baltimore & Ohio R. R. Co. v. May, 647. Baltimore & Ohio R. R. Co. v. Taylor, 143, 629. Baltimore & Ohio Ry. Co. v. Wheeler, 257, 268. Baltimore, etc., R. Co. v. McCullough, 272. Bamberger v. Halberg, 536. Bamberger v. Moayon, 67. Bamberger v. Terry, 66. Bamberger v. Voorhies, 619. Bank Cases, 593. Bank v. Blossom, 112. Bank v. Byrne, 135. Bank v. Carrol Iton R. R, 183. Bank v. Damm, 68. Bank v. Dibrell, 316. Bank V. Drury, 567. Bank v. Ford, 275. Bank v. Glaser, 636. Bank v. Goodall. 346. Bank v. Goodrich, 50. Bank v. Haiman, 377. Bank v. Heath, 696, 698. Bank v. Johnson, 428. Bank v. McCord, 516. Bank v. Mixter, 49, 169. Bank v. Orton, 50. Bank v. Payne, 37, 42, 51, 343, 484, 549. Bank v. Robinson, 639. Bank v. Sterling, 139. Bank v. Wetmore, 78. Bank v. Wittish, 568. Bank of Alabama v. Berry, 92, 125. Bank of Alabama v. Fitzpatrick, 129, 157, 476, 678. Bank of America v. Indiana Bank- ing Co., 321. Bank of America, etc. v. Burdick, 570. Bank of Augusta v. Conrey, 16, 141, 476. Bank of Augusta v. Earle, 331. Bank of Augusta v. Jaudon, 540. Bank of California v. Boyd, 89. Bank of Chester v. Ralston, 292. Bank of Commerce v. Rutland, etc., R R. Co., 465, 484. Bank of Fayetteville v. Spurling, 540. Bank of Garfield Co. v. Bingham, 65. Bank of Lansingburgh v. McKie, 465. Bank of Louisiana v. Stafford, 535. Bank of Mo. v. Bredow, 41 1. Bank of N. America v. McCall, 76. Bank of Northern Liberties v. Jones, 265. Bank of North-West v. Taylor, 228, 239. Bank of Rome v. Ilaselton, 548. Bank of St. Mary v. Morton, 303. Bank of Tennessee v. Dibrell, 308. Banks v. Hunt, 382. Banks v. Self, 154. Bancroft v. Curtis, 187. Bancroft v. Sinclair. 240. Banfield v. Wiggin, 265. Bangs V. Beacham, 399, 599. Banning v. Sibley, 384. Bannister v. Carroll, 151. Bannister v. Higginson, 227, 228, 240, 242, 244. Banta v. Reynolds, 169. Banta v. Wood, 4, 43, 432, 606. Barber v. Howd, 645. Barber v. Morris. 3. Barber v. Parker, 304, 639. Barber v. Robeson, 39, 98, 184. Barber v. Smith, 115, 582, 629. Barber v. Swan, 479. Barbieri v. Ramelli, 14 Barbour t. Lodge, 82. Bardsley v. Hiues, 122. Bardwell v. Perr\-, 618. Barelli v. Wagner, 122, 604. XVI TABLE OF CASES. Tlie references are to pages. Barkaloo v, Randall, 129. Barker v. Abbott, 673, 685, 688. Barker v, Esty, 271. Barker v. McLeod, 573. Barker v. Miller, 395, 399. Barker v. Osborne, 299, 385. Barker v. Thorn, 91. Barksdale v. Hendree, 16. Barlow v. Hall, 219. Barmon v. Clippert, 667. Barnard v. Graves, 259, 289, Barnard v. Life Ins. Co., 214. Barnard v. Sebre, 106. Barnes v. Buck, 71. Barnes v. Hays, 560. Barnes v. McMullins, 373. Barnes v. The People, 251. Barnes v. Treat, 285, 287, 292. Barnes v. Wayland, 381. Barnes v. Webster, 128. Barnet v. Fergus, 49. Barnet's Case, 28, 585. Barnett v. Kinney, 510. Barnett v. Rayburn, 458. Barnett v. Ring, 447. Barnett v. Watson, 582. Barnett v. Weaver, 292. Barney v. Douglass, 302. Barney v. Globe Bank. 340. Barney v. Kenistou, 498, 505. Barney v. Patterson, 38. Barney v. Rockwell, 159, 210. Barney v. Weeks, 233. Barnstable, etc. v. Higgins, 528. Barnum v. Boughton, 293. Baruum v. Circuit Judge, 269. Baruuni v. Fitzpatrick, 586. Barr v. King, 331, 333. Barr v. Perry, 360. Barrett v. Spaids, 691. Barrett v. White, 222. Barriere v. McBean, 110. Barrill v. Humphreys, 86. Barron v. Arnold, 179. Barron v. Cobleigh, 395. Barron v. Smith, 228, 234, 394. Barrow v. West, 647. Barry v. Fisher, 275. Barry v. Foyles, 491, 531. Barry v. Fraysei-, 520. Barry v. Hogan, 390. Bartell v. Bauman, 293. Bartemeyer v. Iowa, 669. Barth v. Backus, 195. Bartholomew v. Chautauqua Co. Bank, 582. Bartholomew v. Warner, 590. Bartle v. Coleman, 184. Bartlett v. Board, 516. Bartlett v. McNeil, 421. Bartlett v. Spicer, 421. Bartlett v. Ware, 59, 87, 89. Bartlett v. Wilbur, 369, 376, 382. Bartlett v. Wood, 263. Barton v. AUbright, 569, 644, 647. Barton v. Brown, 501. Barton v. Smith, 645. Bassett v. Garthwaite, 279. Bassett v. Hughes, 483. Batchellor v. Richardson, 363. Bate V. McDowell, 129. 130, 134. Bateman v. Backus, 579. Bateman v. Ramsey, 74, 539, 541, 688. Bates V. Bates, 508. Bates V. Chicago, etc., R. Co., 334. Bates V. Clark. 682. Bates V. Crow, 4, 5, 253, 426, 434 Bates V. Days, 340, 436. Bates V. Delavan, 606. Bates V. Forsyth, 339, 383, 384. Bates V. Killian, 491. Bates V. New Orleans, etc., R R. Co., 273, 282. Bates V. Plousky, 10, 570. Bates V. Railroad Co., 344. Bates V. Relyea, 121. Bates V. Robinson, 82, 110. Bates V. Tappan, 527. Battis T. Hamilton, 321. Battles V, Simmons, 361. Bauer v. Deane, 547. Baugh V. Barrett, 507. Baugh V. Kirkpatrick, 411. Baum V. Gosline, 620. Baum V. Raphael, 468. Baumbach v. Singer, 306. TABLE OF CASES. XVll Tlie references are to jDoges. Baumgardner v, Dowagiac Man. Co., 89. Baune v. Thomassin, 75. Baur V, Antoine, 492, 496. Baxley v. Liuaii, 524, 561. Baxter v. Currier, 261. Baxter v. Rice, 232, 239. Baxter v. Mo., etc., R. Co., 383. Baxter v. Vincent, 282, 649. Ba)'er v. Grove, 536. Bayersdorfer v. Hart, 4. Bay ley v. Ward, 154. Bayliss v. Houghton, 510. Beach v. Botsford, 93, 121, 123. Beach v. Viles, 372. Beadle v. Graham, 626. Beal V. Alexander, 492, 522. Beamer v. Freeman, 568. Beamer v. Winter, 337. Bean v. Ayres, 401. Beau V. Barney, 624. Beau V. Bean, 259. Bean v. Hatcher, 79. Bean v. Hubbard, 170, 222, 223. Bean v. Insurance Co., 508. Bean v. Parker, 506. Bean v. Patterson, 192. Bean v. Union Bank, 263. Beans v. Bullitt, 266. Bear v. Marx, 687. Beard v. Wilson, 603. Beardslee v. Morgan. 148. Beardsley v. Beardsley, 369. Beardsley v, Morgan, 477. Beasley v. Parker, 58. Beaupre v. Brighara, 246. Beaupre v. Keefe, 376. Beauregard v. New Orleans, 441. Beaver Valley Bank v. Cousins, 275. Bebb V. Preston, 381. Becker v. Bailies, 16, 225, 394, 427, 433, 656. Becker v. Dunham, 208, 225, 655, 658. Becker v. Hulme, 652. Becker v. Langford, 485. Beckert v, Whitlock, 382. Becknell v. Becknell, 626. Beck's Estate, 206. B Beckwith v. Bank, 302. Beckvvith v. Baxter, 292, 316. Beckwith v. Douglass, 246, 434. Beckwith v. Sibley, 14. Beebe v. Morrill, 110, 111. Beech v. Abbott, 249, 400, 431. Beecher v. Brookfield, 575. Beecher v. James, 477. Beecher v. Stephens, 250. Beekman v. Lansing, 224. Beer Co. v. Massachusetts, 669. Beers v. Place, 190, 285. Beers v. St. John, 190. Behrens v. McKenzie, 696. Belden v. Wilcox, 89. Belfast Savings Bank v. K. L. & L. Co., 59, 89. Belknap v. Gibbons, 260, 391. Bell V. Allen, 85, Bell V. Austin, 583. Bell V. Craig, 592. Bell V. Davis, 499. Bell V. Gaylord, 245. Bell V. Green, 619. Bell V. Hall, 114. Bell V. Jones, 363. Bell V. Kendall, 576. Bell V. Kendrick, 361. Bell V. Shafer, 212, 400. Bell V. Western, etc., Co., 609. Bell V. Wood, 275. Bellows, In re, 7. Beloit V. Morgan, 501. Belou V, Robbins, 478. Bender v. Fromberger, 595, 596. Benedict v. Bray, 9, 37, 137, 148, 476, 477, 678. Benham v. Ham, 191. Benjamin v. Davis, 79. Benjamin v. Shea, 241. Benjamin v. Stern, 572. Bennett v. Avant, 39, 41, 93. Bennett v. Brown, 395, 695. Bennett v. Edwards, 91, 118, 433. Bennett v. Wolverton, 558. Bennett v. Zabriski, So, 142, 158. Benson v. Berry, 190, 213, 285. Benson v, Carr, 470. XVIU TABLE OF CASES. Tlie references are to pages. Benson v, Hollawav, S77, 626. Benson v. McCoy, 6S9. 690. Bentley v. Shrieve, 289. Bentley v. Smith, 582. Bentley v. 'Wbite, 226, 655. Benton v. Dutcher, 312. Benton v. Lindell. 369. Benton v. Roberts, 522. Benton v, Snyder, 337. Bergen Turnpike Co. v. State, 442. Bergesch v. Keevil, S3. Bergh v. Jayne. 97. Bergman v. Sells. 11. 548. 550. Berliymer v. Cook, 497, 505. Berly v. Taylor, 76. Bernall v. Hovions, 186. Bernard v. Moore, 268. Bernheim v. Brogan, 637. Bernheim v. Dibrell, 577. Bernheim v. Shannon, 517, 657, Berry v. Anderson, 604 Berry t. Callet. 601. Berry v. Charlton, 502. Berry v. Davis, 54. Berry v. Doty, 602. Berry v. Xelson, 603. Berry v. Nichols, 495. Berry v. Spear, 236. Berryman v. Stern, 10. Beseman v. Weber, 150. Bessey v. Vose, 217, 546. Besshears v. Rome, 274. Betancourt v. Eberlin, 607. Betancourt v. Madual, 499. Bethel v. Chipman, 263, 276, 381. Bethel v. Linn, 263, 385. Bethune v. Gibson, 12, 620. Betterton v. Eppstein, 413, 430. Betts T. Gibbons, 174 Betzemann v. Brooks, 474 Beverstock v. Brown, 293. Bevier v. Dillingham, 376. Bholen v. Cleveland, 302. Bibb V. Smith, 306. Bickerstaff v. Patterson, 228, 230. Bickford v. Rice, 632. Bickler v. Kendall, 210. 212, 394 Bicknell v. Cleverly, 565. Bicknell v. Hill. 403. Bicknell r. Trickey, 210. Biddle v. Black, 5, 94 Biering v. First N. Bank, 694 Bierne v. Baton, 195. Bigelow v. Andress, 337. Bigelow V. Stearns, 442. Biggs V. Blue. 121. Bildersee v. Aden, 527, 539, 690. Bills V. Nat. Park Bank, 202, 279. Biug Gee v. Ah Jim, 143, 144 Bingham v. Lamping. 627. Bingham v. Rushing, 336. Binns v, Williams, 470. Birch V. Prodger, 219. Bird V. Perkins, 169. Birdsall v. Wheeler, 519. Birdsong v. Birdsong, 253. Birdsong v. McLaren, 83, 127. Birtwhistle v. Woodward, 276, 641. Bisbee v. Bowden, 482. Bishop V. Finnerty, 5, 106. Bishop V. Holcomb, 303. Bishop V. Young, 262, 273. Bissell V. Briggs, 433, 451. Bissell V. Nooney, 545. Bissell V. Strong, 260, 561. Bittingsby v. Harris, 144. Bivens v. Harper. 289, 314 315. Bivens v. Mathews, 4, 57, 433. Bivens v. School Directors, 289. Bixby V. Smith, 60. Black V. Black, 274 Black V. Brisbin, 121. Black V. Cleudenin, 457. Black V. Dawson, 269. Black V, Long, 577, 578. Black V. Paul. 398. Black V. Scan Ion, 90. Black V. Zacharie, 262. Blackburn v. Clarke, 208. Blackburn v. Davidson, 263. Black Hills, etc. v. Gardiner, 139. Blackley v. Matlock, 569. Blackstone v. St. Louis, etc., R Co., 382. Black well v. Fry, 57. Blackwood v. Jones, 125, 456, 461. TABLE OF CASES. ZIX Tlie references are to pages. Blaine v. The Charles Carter, 435. Blair v. Canty, 191. 285. 287. Blair v. Puryear, 540. Blair v. Rhodes, 262. Blair v. Shaw, 162. Blair v. Shew, 161, 479. Blair v. Smith, 86. Blair v. Steinman, 521. Blair v. Weavei% 458. Biaisdell v. Ladd, 260, 337. Blake v. Bernhard, 97, 98. Blake v. Camp, 237. Blake v. Hatch, 213. Blake v. Rider, 207. Blakely v. Bird, 90. Blakely v. Smith, 192, 574 Blanc V. Paymaster, 152. Blanc V. Tharp, 685. Blanchard v. Brown, 396, 486. Blanchard v. Cole, 372. Blanchard v. Coolidge, 496. Blanchard v. Grousset, 473. Blanchard v. Vargas, 381. Bland v. Bowie, 502. Blanfey v. Findley, 132. Blank v. Talcott, 48. Blankenship v. Moore, 261. 347. Blass V. Anderson. 580. Blass V. Lee, 103, 685. Blatchford v. Conover, 600. Blatchley v. Adair, 519. Blauvelt v. Fechtman, 171. Bledsoe v. Gary, 499. Bledsoe v. Wright, 471. Blevins v. Baker, 618. Bliss V. Heasty, 677. Bliss V. Smith, 350. 508. Bliss, In re, 121, 122. Bliss, Matter of, 92, 97, 119. Blood V. Harrington, 65. Blood V. Light, 618. Blood worth v. Hunter, 534. Bloom V. Burdick, 254, 428, 442. Blossom V. Estes, 160, 334, 418. Blotchy V. Caplan, 186. Blum V. Addington, 488. Blum V. Davis, 105, 106. Blum V. Scram, 688. Blum V. Stein, 695. Blum V. Strong, 687. Blyler v. Kline, 461, 462. Boals V. Shules, 45, 457. Board of Education v. Scoville, 639, 644. Boardman v. Bickford, 27, 28, 32, 41. Board man v. Gushing, 373. Boardman v, Glenn, 16. Boardman v. Roe, 271. Boatman's Bank v. Overall, 267. Boatwright v. Stewart, 9, 144, 680. Boaz V. Schneider, 555. Bobb V. Woodward, 53. Bodet V. Nibourel, 147. Bodwell V. Heaton, 248. Boehreinger v. Creighton, 397. Bogart V. Dart, 95. 185. Bogart V. Swezy, 252, 433. Bogert V. Philps, 170. Boggan V. Bennett, 498, 695. Boggs V. BiudskoflF, 32, 40. Boggs T. Douglass, 580. Boker v. Chapline, 440. Boland v. Ross, 621. Bolard v. Mason, 458. Boiling v. Tate, 696, 698. Bolton V. Pa. Co., 645, Boltz V. Eagon, 192, 569. Bond v. Epley, 602. Bond V. Greenwold, 520. Bond V. Padelfoid, 399, 401. Bond V. Patterson, 101. Bond V. Ward, 174, 211, 472, 692. Bonnaffon v. Thompson, 630. Bonner v. Brown, 137, 456, 472. Bonner v. Martin, 624. Booker v. Smith, 128, 147. Boone v. Mcintosh, 201, 281. Boone v. Savage, 90. Boone Co. v. Keck, 312. Boor man v. Brown, 76. Booth V. Barnum, 563. Booth V. Gish. 563. Booth V. Rees, 124, 169. Boothby v. Brown, 562. Boothe V. Estes, 107. Borden v. American Surety Co., 492. XX TABLE OF CASES. Tlie, references are to pages. Borden v. Fitch, 426, 433, 442, 449. Borden v. McRae, 576. Borders v. Murphy, 422, 433. Boren v. BiUiugton, 382. Borland v. Kingsbury, 80, 122. Born v. Staaden, 304, Born V. WiUiaras, 314, 449. Borum v. Reed, 607. Bosbyshell v. Emanuel, 107. Boscher v. Roullier, 472, 486. Boston Bank v. Minot, 293. Boston, etc., R Co. v. Gilmore, 496. Boston, etc., R. Co. v. Oliver, 372. Boston Iron Co. v. Boston Works, 195. Boston Loan & Trust Co. v. Organ, 373. Boston Type Co. v, Mortimer, 373. Bostwick V. Bass, 275, 363, 366, 367. Bostwick V. Beach, 623. Bostwick V. Blake, 581. Boswell's Lessee v. Otis, 250, 428, 442. 447. Botsford V. Simmons, 300, 349. Bottom V. Clarke, 16. Boundred v. Del Hoyo, 25. Bourne v. Cabot, 300. Bourne v. Hocker, 185, 478, 479. Bourne v. Merritt, 500, 501. Bowden v. Burnham, 66, 74, 541. Bowden v. Robinson, 649. Bowden v. Schatzell, 89. Bowe V. Reflector Co., 622. Bowe V. United States Reflector Co., 700. Bowe V. Wilkins, 497. Bowen v. Bank of Medina, 70. Bo wen v. Crow, 275. Bowen v. First National Bank of Medina, 24. Bowen V. Mulford, 364. Bowen v. Pope, 344, 359. Bowen v. School District, 462. Bowen v. Slocum, 122, 125. Bower v. Feun, 593. Bower v. Town, 3, 426, 433, 472. Bowers v. Beck, 54. Bowers v. Insui-ance Co., 328, 364. Bowers v. Ross, 33. Bowker v. Hill, 199. Bowler v. European, etc., Co., 359. Bowler v. European, etc., R Co., 327. Bowman v. Norton, 495, 504. Bowman v. Ferine, 26. Bowman v. Stark, 242. Bowring v. Bowring, 615. Box V. Lawrence, 7. Boxby v. Segrest, 686. Boyce v. Foot, 471. Boyce v. Grundy, 544. Boyce v. Smith, 568. Boyce v. Tabb, 438. Boyd V. Bayless, 260. Boyd V. Beck, 567. Boyd V. Boyd, 129. 476, 51.5. Boyd V. Brisban, 696, 698. Boyd V, Brown, 509. Boyd V. Buckingham, 125, 492, 514, Boyd V. Chesapeake & Ohio Canal Co., 319. Boyd V. Cobbs, 560. Boyd V. Insurance Co., 646. Boyd V. Labrauche, 53. Boyd V. Martin, 186, 677. Boyd V. Urquhart, 448. Boyer v. Bullard, 70, 76. Boyer v. Clark, 12, 672. Boyer v. Hawkins, 292. Boyes v. Coppinger, 483. Boykin v. Edwards, 166. Boyland v. Boyland, 248. Boyle V. Franklin Fire Ins. Co., 272. Brace v. Benson, 582. Brack v. McMahon, 65, 111. Bracket v. Harvey, 563. Brackett v. Blake, 22. Bradbury v. Van Nostrand, 153. Bradford v. Coit. 462. Bradford v. Gillispie, 203. Bradford v. Johnson, 183. Bradford v. Mills. 284. Bradley v. Arnold, 223. Bradley v. Boriu, 681. Bradley v. Cooper, 75. Bradley v. Hunt, 200. Bradley v. Kroft, 129, 130, 135. TABLE OF CASES. 2X1 Hie references are to pages. Bradley v. Obear, 580. Bradley v. Town of Richmond, 313, 316, 318. Bradshavv v. Tinsley, 70. Bradstreet v. Tlie Neptune Insur- ance Co., 250,, i'yi. Brady v. Tabor, SM, 638. Brady's Appeal, 163. Brafman v, Asher, 106. Braguuier v. Beck, 69. Brainard v. Burton, 240. Brainard v. Shannon, 364. Brainard v. Simmons, 391. Brainerd v. Bushnell, 235, 545. Brake v. Curd, etc., Co., 382, 625. Braley v. Boomer, 527. Braley v. Burns, 170. Braley v. Clark. 515. Braley v. French, 240. Bramfield v. Dyer, 594, 595. Bramhall v. Flood, 563. Branahl v. Watson, 651. Branch v. Branch, 134. Branch v. Frank, 85, 86, 481 Branch v. Tomlinson, 503. Branch Bank v. McDonald, 36. Branch Bank v. Morris, 147. Branch Bank v. Poe, 273. 318, 463. Branch of State Bank v. Morris, 146. Brand v. Brown, 700. Brand v. Hinchman, 676, 685. Brand v. United States, 593. Brandon v. Allen, 687. Brandon v. Shinn, 484. Brandon Iron Co. v. Gleason, 550, 552. Branner v. Chapman, 459. Branshaw v. Tiusley, 14. 127. Branson v. Shinn, 38, 483. Brash v. Wielarsky, 476. Brashear v. West, 55, 410, 454. Brasher v. Holtz, 559, 561. Braunsdorf v. Felner, 486, 683, 684. Brauser v. Insurance Co., 323. Bray v. McCluey, 117. Bray v. Marsimll, 244 Bray v. Saaman, 559, 659. • Bray v. Wallingford, 312, 317. Bray v. Wheeler, 301. Bray v. Wise, 189. Braj'nard v. Burpee, 648. Brayton v. Freese, 116, 642. Brazier v. Chappell, 300. Breading v. Seigworth, 652. Brecht v. Corby, 353, 362. Breck v. Blair, 518. Breed v. Mitchell, 29. Breedlove v. Johnston, 516. Breene v. Bank, 407, 482. Brenner v. Hirsche, 277. Brenner t. Moj'er, 5, 523, 531. Breslauer v. Geilfuss, 539. Bresnahan v. Nugent, 306. Bretney v. Jones, 478. Brewer v. Springfield, 250. Brewer v. Tucker, 47, 97, 484. Brickey v. Davis, 549. Bridge v. Wyman, 402, 403, 405, 690. Bridge Proprietors v. Hoboken Com., 438. Bridges v. North, 271. Bridges v. Perry, 894, 395. Bi'idges V. Williams, 100. Bridgman v. McKissock, 580. Brien v. Pitman, 601. Brierfield Works v. Foster, 406. Brigdon v. Gill, 259, 271. Briggs V. Block, 259, 289, 300. Briggs V. French, 467. Briggs V. Gleason, 399. Briggs V. Hodgdon, 60. Briggs V. Kouns, 410. Briggs V. Mason, 401. Briggs V. Smith, 9, 137, 477, 678. Briggs V. Strange, 496. Brinegar v. Griffin, 470, 490. Brinker v. Leinkrauff, 177, Briusfield v. Austin, 253. Britt V. Bradshaw, 381. Brittain v. Anderson, 281. Britton v. Boyer, 48, 193. Broadhurst v. Morgan, 649. Broadstreet v, Clark, 510. Brode V. Firemen's Ins. Co., 377. Brolaskey v. Landers. 36. Bromer v. Smith, 201. XXil TABLE OF CASES. The references are to pages. Bromfleld v. Dyer, 590. Bromley v. Smitli. 440. Bronson v. Shinn, 25. 485. Brookmire v. Eosa, 117. Brooks V. Adams, 443. Brooks V. Bush, 579. Brooks V. Chatham, 498. Brooks V. Cook, 285, 287, 693. Brooks V. Hildreth, 299. Brooks V. Poiriex', 140. Brooks V. State, 213. Brotherton v. Thompson, 519. Brower v. Smith, 202. Bi'own V. Ainsworth, 466. Brown v. Ashbough, 27. Brown v. Bacon, 198. Brown v. Balde, 461. Brown v. Bank. 563. Brown v. Blanchard, 485. Brown v. Brown, 274, 388. Brown v. Campbell, 182. Brown v. Carroll, 227, 296, 656, 657, Brown v. Coats, 63, 74 Brown v. Collins, 317. Brown v. Cook, 399. Brown v. Cooper, 405. Brown v. Crane, 25, Brown v. Crenshaw, 98. Brown v. Dudley, 644. Brown v, Elmendorf, 235. Brown v, Finley, 308, Brown v, Foster, 300, Brown v. Frost, 595, Brown v. Gummersell, 384. Brown v. Guthrie, 123. Brown v. Harris. 606, 614, 621. Brown v. Hawkins, 107, 112, 115. Brown v. Heath, 507. Brown v. Hinchman, 119. Brown v. Insurance Co., 329. Brown v, Jones, 696, 698. Brown v, Keifer, 268. Brown v. Leckie, 331. Brown v. Leitch, 503. Brown v. Lessing, 555. Brown v. McCluskey, 93. Brown v. McGehee, 542. Brown v. Mosely, 66. Brown v. Mossman, 51, 99, Brown v, Neale, 164. Brown v. Rice's Adm'r, 594 Brown v. Richmond, 395. Brown v. Ridgevvay, 487, Brown v. Saratoga R. R. Co., 457. Brown V. Seymour, 636, Brown v. Silsb3% 307. Brown v. Somerville, 647. Brown v. State, 258. Brown v. Tucker, 208, 544, 545. Brown v. United States, 596. Brown v. Van Braam, 438. Brown v. Warren, 373. Brown v, Watson, 180. Brown v, Whiteford, 134, 477. Brown v. W^igton, 473, Brown v. Williams. 245. Brown, Matter of, 30, 92. Brownell v. Manchester, 395, 899. Brownfield v. Dyer, 248, Brownwell v. Carnley, 188. Bruce v. Cloutman, 433, 453. Bruce v. Coleman, 128, 678. Bruce v. Conyers, 14, Bruce v. Cook, 121, 360. Bruce v. Holden, 213, 427,' Bruce t. Petteugill, 232, 395. Bruce v. Stewart, 425. Bruce v. Vogel, 543. Bruhn v. Jefferson Bank, 433, 444. Bruley v. Seaman, 122. Brumback v. Weinstein, 77. Brumby v. Barnard, 518, 519. Brumgard v. Anderson, 485. Brummel v. Hurt, 590. Brumwell v. Stebbins, 277. Brundred v. Del Hoyo, 28. Brunott v. McKee, 661, Brunswick v. Mims, 36. Brush V. Scribner, 200. Brusie v. Gates, 239. Bryan v. Dean, 630, 633. Bryan v. Duncan, 628. Bryan v. Dunseth, 25. Bryan v. Hitchcock, 581 Bryan v. Kelly, 498. Bryan v. Lashley, 16. TABLE OF CASES. XXlll Tlie references are to pages. Bryan v. Ponder, 363. Bryan v. Smith, 443. Bryan v. Trout, 307, 227, 235. Bryant v. Allen, 7. Bryant v. Fussel, 31. Bryant v. Hendee, 143, 147, 462. Bryant v. Osgood, 313, 231, 233. Bryant v, Simoneau, 54. Buchanan v. Alexander, 389, 308. Buchanan v. Sterling, 109, 434. Buchanan Co. Bank v. Cedar Eapids, etc., 335. Buck V. Colbath, 663. Buck V. Ingersoll, 13, 14. Buck V. Panabaker, 479. Buckey v. Phenice, 651. Buckhardt v. McClellan, 206, 232. Buckhurst v. Clinkard, 619. Buckingham v. Osborne, 16, 153. Buckingham v. Swezy, 5, 185, 581, 605. Buckland v. Tonsmire, 505. Buckler v. Van Diver, 696. Buckley v. Eckert, 289. Buckley v. Furniss, 195. Buckley v. Lowry, 3, 16, 121, 433, 443. Bucklin v. Crampton, 313, 227. Bucklin v. Powell, 322. Buckmaster v. Smith, 189. Buck-Eenier v. Merrill, 238, 269. Bucks V. Moore, 485. Budd V. Hiler, 76. Buddig V. Simpson, 256. Buddington v. Stewart, 186. Budsong V. Sledge, 476. Buehler v. De Lemos, 89, 249. Buell V. Van Kamp, 37, 87, 99, 486. Buffam V. Seaver, 468. Bufflmm V. Racine, 313, 316. Buffington v. Gerrish, 580. Buford V. Shannon, 198. Buford, etc. v. McWhorter, 42. Buhl V. Ball, 91. Buice V. Lowman, etc., Co., 463. Buice V. Mining Co., 5. Building Ass'n v. King, 573. Bulfinch V. Winchenbach, 277, 552. Bulkley v. Eckert, 314. Bullard v. Hicks, 369. Bullard v. Wait, 191. Bullene v. Hiatt. 504. Bullene v. Smitli, 53, 144* Buller V. Woods, 211, 22a Bullitt V. Winston, 240. Bullock V. Ferguson, 698. Bumberger v. Gerson, 45. Bump V. Betts, 691. Bump V. Dehany, 99. Bunce v. Reed, 253. Bundrem v. Denn, 4, 5, 16, 434, 473, 487. Bunker v. Gilmore, 372. Bunn V. Pritchard, 113, 113. Bunn V. Thompson, 583. Bunneman v. Wagner, 490, 523, 529. Bunt V. Rheum, 12, 674. Bunting v. Salz, 683. Burcalow v. Trump, 25, 81. Burch V. W^atts, 467. Burgen v. Shaver, 680. Burger v. Burger, 266. 300. Burgert v. Borchert, 51. Burgess v. Atkins, 618. Burgess v. Capes, 271. Burgess v. Clark, 32, 350. Burgess v. Seligman, 437. Burgess v. Stilt, 110. Burk V. Barnard, 583. Burk V. Webb, 404, 406. Burke v. Hance, 374, 506, 631. Burke v. Hollis, 190. Burke v. Johnson, 193. Burke v. Whitcomb, 372. Burkhardt v. McClellan, 55a Burkhart v. Jennings. 689. Burleson v. Milan, 288, 292. Burlingame v. Bell, 190, 285, 410, 412. Burlington, etc., Co. v. Thompson, 262, 334, 509, 511. Burlington, etc., R. Co. v. Lumber Co., 650. Burlock V. Cross, 43. Burlock V. Taylor, 297. Burnam v. Romans, 122, 544, Burnap v. Campbell, 645. Burne v. Gardner, 128. XXIV TABLE OF CASES. Tlie references are to pages. Burnell v. Hunt, 183. Burnell v. Robei-tson, 16. Burnett v. McCluey, 27, 91, 117, 125. Burnham v. Beal, 259. Burnham v. Doolittle, 268. Burnham v. Fond du Lac, 289, 312, 316. Burnham v. Hopkinson, 339. Burnside v. Davis, 81. Burnside v. McKiuley, 257. Burr V. Mathers, 297. Burrell v. Letson, 191, 256, 287. Burroughs v. Wriglit, 190, 285. Burrows v. Glover, 297. Burrows v. Miller, 27. Burrows v. Stoddard, 547. Burrus v. Moore, 382. Burruss v. Trant, 42, 485. Burt v. Parish, 470. Burt V. Reilly, 380. Burton v. District Township, 307. Burton v. Knapp, 689. Burton v. Robinson, 112. Burton v. Smith, 696. Burton v. Wilkinson, 218. Burton v. Wynne, 82, 380, 346. Burton & Watson, Matter of, 573. Bury V. Conklin, 462. Busbin v. Ware, 487. Buschman v. Hanna, 5, 509. Bush V. Downing, 462. Bush V. Bush, 461. Bush V. Nance, 570. Bushel v. Commonwealth Ins. Co., 318. Bushey v. Raths, 456. Bushuell V. Allen, 357, 359, 376, 623, 627. Bushnell v. Com. Ins. Co., 24. Bussey v. Leavitt, 253. Bussey v. Rothschild, 124. Buswell V. Davis, 467. Butler V. Borders, 224. Butler V. Kelsey, 162. Butler V. Mullen, 872. Butler V. Wagner, 421. Butler V. White, 427, 434, 640. Butler Paper Co. v. Printing Co., 73. Butt V. Green, 499. Butterfield v. Baker, 496. Butterfield v. Clemence, 895. Button V. Trader, 649. Butts V. Peacock, 51. Buzzell V. Hardy, 498, 501, 504. Byars v. Griffin, 298. Byers v. Bi-annon, 162, 249. Byers v. Byers, 495. Byers v. McClanahan. 515. Byersdorf v. Sump, 691. Byford v. Girton, 696. Byles V. Rowe, 98. By ran v. Lash ley, 887. Byrd v. Hopkins, 227. Byrne v. Roberts, 60. c, Cabeen v. Douglass, 235. Cabell V. Hamilton, etc., Co., 178. Cable V. Ellis, 78. Cackley v. Smith, 247. Cadwalader v. Hartley, 281. Cad well v. Colgate, 121. Cad well v. Corey, 60, 676. Cady V. Comey, 292. Caffrey v. Dudgeon, 128. Cahoon v. Ellis, 383. Cahoon v. Morgan, 851. Caignett v. Gil band, 276. Cain V. Mather, 63. Cain V. Rockwell, 64. Cain V. Simpson, 447. Cairo, etc., R. Co. v. Hind man, 2V2, 625. Cairo, etc., R. R. v. Killenberg, 257, 272, 298, 371, 382, 885, 625. Cal. Academy of Sciences v. Fletcher, 639. Calahan v. Babcock, 198. Caldwell v. Arnold, 170, 222. Caldwell v. Barclay, 36. Caldwell v. Coates, 271, 884. Caldwell v. Colgate, 16, 490, 529. Caldwell v. Haley, 60. Caldwell v. Silver, 884. Caldwell v. Stewart, 339. TABLE OF CASES. XXV The references are to pages. Caldwell v. Townsend, 623. Caldwell v. Truesdale, 495. Calhoun v. Cozzens, 472. Calhoun v. Hannan, 485, 686. Calhoun v. Stout, 613. Calhoun v. Ware, 284, 432, 434 Calk V. Chiles. 121. Callaghan v. Pocasset Manuf. Co., 316. Callahan v. Hallowell, 318, 463. Callan v. Statham, 306. Callen v. Ellison, 441. Callender v. Duncan, 134, 470. Callonder v. Furbish, 268. Calson V. Wilson, 497. Camberford v. Hall, 40, 130. Cambridge v. Charlestown, 28. Camden v. Allen, 373. Cameron v. Stollenwei'k, 647. Cam mack v. Floyd, 299. Cammann v. Tompkins, 484. Camp V. Cahn, 14. Camp V. Chamberlain, 224. Camp V. Clark, 306. Camp V. Schuster, 621. Camp V. Tibbets, 97. Camp V. Wood, 443. Campau v. Traub, 362. Campbell v. Chamberlain, 12, 673, 681, 684, 695. Campbell v. Day, 302. Campbell v. Gould, 499. Campbell v. Hall, 92, 93, 124 Campbell v. Hopkins, 691. Campbell v. Jackson, 42. Campbell v. McCahan, 442, 445. Campbell v. Moore. 586. Campbell v. ]Morris, 431, 483. Campbell v. Nesbitt, 377, 645. Campbell v. Ruger, 554. Campbell v. Warner, 53, 54. Campbell v. Whetstone, 481. Campion, etc., Co. v. Searing, 57. Canada v. Southwick, 657. Canaday v. Detrick, 377, 569, 645, 654. Canadian, etc., Co. v. Kyser, 495. Canal Co. v. Insurance Co., 298. Canda v. Powers, 581. Candee v. Skinner, 634. Candee v. Webster. 634. Can field v. Hard, 605. Canfield v. McLaughlin, 13. Canfield v. Monger, 501. Cannon v. Dunlap, 513, Cannon v. Logan, 107. Cannon v. McManus, 483. Cannon v. Wood, 442. Canova v. Colby, 485. Cape Girardeau v. Renfroe, 578. Capehart v. Dowery, 86, 467. Capen v. Duggan, 258. 293. Capen v. Peckham, 189. Capes V. Burgess, 271. Capital City Bank v. Parent, 72, 210. Capital City Bank v. Wakefield, 386. 630. Carbee v. Mason, 280. Cardany v. Furniture Co., 625. Garden v. Garden, 36. Carey v. Brinton, 640. Carey v. Gregg, 10. Carey v. Gunnison, 12, 674, 692. Carey v. State, 661. Cariker v. Anderson, 433, 443. Garland v. Cunningham, 70. Carleton v. Ryerson, 206, 232, Carleton v. Washington Ins. Co., 253, 402, 424, 433. 451. Carlin v. Ritter, 190. Carlisle v. Cowan, 33. Carlisle v. Gunn, 82. Carlos V. Alvord, 271. Carlton v. Davis, 222. Carmack v. Commonwealth, 661. Carney v, Emmons, 586. Carothers v. McIIhcnny, 689. Carpenter v. Bodkin, 341. Carpenter v. Central Park, etc., R. R Co., 461. Carpenter v. Dresser, 188, 223, 225, 685. Carpenter v. First N. Bank, 488. Carpenter v. Gay, 365. Carpenter v. Pridgen, 105. Carpenter v. Scott, 170. Carpenter v. Stevenson, 680. XXVI TABLE OF CASES. Tlie references are to pages. Carpenter v. Turrell, 527. Carr v. Coopwood, 477. Carr v. Farley, 396, 405. Carr v. Van Hoesen, 123, 433, 571. Carr v. Waugh, 298. Carrington v. Smith, 427. Carrique v. Sidebottoni, 360. Carroll v. Carroll's Lessee, 438. Carroll v. McDonough, 643. Carroll v. Miller, 329. Carroll v. Milner, 625. Carroll v. Parkes, 644. Carroll v. Smith, 437. Carroll v. Tinley, 383. Carroll County Bank v. Goodall, 159. Carson v. Carson, 180. Carson v. Railway Co., 511. Carter v. Bush, 379. Carter v. Carter, 503. Carter v. Champion, 10, 206, 505, 563, 563. Carter v. Fenstemaker, 268, 269. Carter v. Gregory, 540. Carter v. Jar vis, 186. Carter v. Koshland. 233, 627. Carter v. Rewey, 268. Carter v. Webster, 373. Carter v. Willard^ 197. Caruth, etc. v. Deere, 547. Cartwright v. Bamberger, 77, 619. Cartwright v. Chabert, 165, 166. Carver v. Chapell, 45. Carver V. Shelley, 12, 675. Cary v. Gregg, 544. Cary Lumber Co. v. Cain, 576. Case V. Beauregard, 305. Case V. Haughton, 302. Case V. Moore, 623, 624. Case V. Noyes, 257, 339, 347. Case, etc., Co. v. Miracle, 292. Casey v. Adams, 426. Casey v. Davis, 259, 289, 653. Casner's Adm'r v. Smith, 15. Cason V. Cason, 444. Casson v. La. State Bank, 534 Catlin v. Gladding, 38. Catlin V. Rickets, 153, 461. Cato V. Thompson, 594. Caton V. Rupert, 245. Caulfield v. Bittinger, 73. Cawker, etc.. Bank v. Jennings, 63. Cavvthorne v. McGraw, 220. Cecil V. Rose, 72. Cedar Hill, etc., Mining Co. v. Jacob Little, etc.. Mining Co., 456. Center v. McQuesten, 259, 274, 300. Central Bank v. Prentice, 268. Central City Bank v. Parent, 421. Central, etc., Co. v. Construction Co., 87. Central, etc., R Co. v. Carr, 453. Central Mills Co. v. Stewart, 523, 524. Central R Co. v. Georgia, etc., Co., 87. Central R & B. Co. v. Georgia, etc., Co., 575. Cerf V. Oaks, 194. Chadbourn v. Gil man, 280, 368. Chadbourne v. Sumner, 213, 433,467. Chafee v. Fourth National Bank, 182. Chafee v. Quidnick, 407. Chaffe V. Mackenzie, 52, 681. Chaffee v. Rutland R Co., 331. Chaine v. Wilson, 25. Chamberford v. Hall, 311. Chamberlain v. Beller, 175. Chamberlain v. Dempsey, 252. Chamberlain v. Faris, 4, 426, 434 Chamberlin v. Gilman, 302. Chambers v. McKee, 377. Chambers v. Sloan, 92. Chambers v. Yarnell, 62, 125. Champion Machine Co. v. Updike, 485. Chandler v. Bailey, 578. Chandler v. Dyer, 206. Chandler v. Faulkner, 645. Chandler v. Nash, 442, 466. Chandler v. Thurston, 189. Chapin v. Ct. R. R Co., 259. Chapin v. Jackson, 268. Chapman v. Briggs, 187. Chapman v. City of Brooklyn, 595. Chapman v. Clough, 13. Chapman v. Foster, 187. Chapman v. Mears, 267. TABLE OF CASES. XXVll The references are to pages. Chapman v. Morgan, 659, Chapman v. Pittsburg, etc., R Co., 78. Chapman v. Railway Co., 86. Chapman v. Searle, 197. Chapman v. Smith, 657. Chapman v. Stuckey, 116. Chapman v. Williams, 260 Chappel V. Chappel, 585. Chariton County v. Moberly, 23. Charles v. Haskins, 661. Charles City, etc., Co. v. Jones, 244. Charnock v. Colfax, 403, 427, 434. Chase v. Currier. 295. Chase v. Elkius, 180. Chase v. Foster, 469. Chase v. Hill, 236. Chase v. Manhardt, 633. Chase v. Ninth Nat Bank, 26. Chase v. North, 383. Chase v. Thompson, 293. Chatroop v. Borgard, 257. Chattahoochee Brick Co. v. Sullivan, 65. Cheadle v. Riddle, 110. Chealy v. Brewer, 285, 287, 311, 313. Cheatham v. Carrington, 31. Cheatham v. Hawkins, 50. Cheatham v. Trotter, 4. Cheely v. Clayton, 603. Chenault v. Chapron, 689. Cheney v. Straube, 70. Cheny v. Nelson, 472. Clieongwo v. Jones, 647. Cherry v. Hooper, 262. Chesapeake, etc., Co. v. Sparks, 256, 268. Chesapeake Guano Co. v. Sparks, 268. Chesapeake R. R Co. v. Paine, 330. Cheshire N. Bank v. Jewett, 210. Chesley v. Coombs, 372. Chesney v. Francisco, 25, 27. Chewing v. Johnson, 195. Chicago V. Robbins, 438. Chicago & Alton R. R Co. v. Rag- land, 627. Chicago, etc. v. Mason, 320, 376, 506, 630. Chicago, etc. v. ]\Ieyer, 375, 505. Chicago, etc., R. Co. v. Moore, 506. Chicago, etc., R. R Co. v. Blogden, 365. 509. Chicago, etc., R. R Co. v. Ragland, 501, 508. Chilcote V. Couley, 506. Childress v. Dickens, 273. Childress v. Fowler, 490, 491, 522. Childs V. Barrows, 242. Childs V. Digby, 270, 334. Childs V. Ham, 233, 241, 395. Chilson V. Reeves, 501. Chipella v. Launsse, 534. Chipman v. McKinnej-, 504. Chipman, Matter of, 32. Chipman's Case, 184. Chisholm, In re, 299. Chisman v. Dorsey, 394 Chittenden's Case, 441. Choate v. Blackford, 365. Choate v. Mcllhenny, 560. Choppin V. Wilson, 619. Chrisman v, Rogers, 530. Christal v. Kelly, 461, 530. Christian v. Seeligson, 691. Christmas v. Biddle, 329, 334, 503. Christmas v. Russell, 449. Christy v. Pridgeon, 438. Chubbuck v. Cleveland, 220. Church V. Campbell, 144. Church V. Ci'ossman, 456. Church V. Furniss, 112. Church V. Holcomb, 494 Church V. Knox, 275. Church V. Phillips, 76. Church V. Simpson, 383. Churchill v. Abraham, 678, 680, 688. Churchill v. Fulliam, 132, 138, 143. Churchill v. Goldsmith, 3. Churchill v. Hill, 120. Churchill v. Palmer, 596. Cilley V. Jenuess, 657. Cincinnati v. Bickett, 250. Citizens' Bank v. Farwell, 338, 437. Citizens' Bank v. Hancock, 60. Citizens' Bank v. Jenks, 191. XXVlll TABLE OF CASES. The references are to pages. Citizens' Bank v. Studebaker Man. Co., 259. Citizens' Bank v. Williams, 94. City Bank v. Cupp, 397. City Bank v. Flippen, 109. City Bank v. Merritt, 25, 38, 488, 485. City Bank v. Phillips, 58. City Bank of New Orleans v. Mcln- tyre, 534, City of Alton v. Kiiscli, 458. City of Charleston v, Blohme, 594. City of Chicago v. Gage, 516. City of Chicago v. Halsey, 316. City of Chicago v. Hastings, 313. City of Chicago v. Rock Island R. R. Co., 442. City of Dallas v. Western Electric Co., 318. City of Denver v. Brown, 317. City of Erie v. Kuapp, 316. City of Lowell v. Parker, 661. City of Nashville v. Wilson, 151. City of Newark v. Funk, 317. City of New Orleans v. Finnerty, 313. City N. Bank v. Cupp, 477. City National Bank v. Jeffries. 686. Claflin V, Baere, 98, 490. Claflin V. Furstenheim, 314, 543. Claflin V. Hoover, 81, 483. Claflin V. Iowa City, 319, 336. Claflin V. Landecker, 307. Claflin V. Lisso, 473. Claflin V. Rodenberg, 51. Claflin V. Steeubock, 15. Claflin Co. v. Feibleman, 73. Clagett V. Kilbourue. 183, 198. Clanton v. Laird, 160, 343. Clapp V. Beardsley, 443. ' Clapp V. Bell, 11, 6l4. Clapp V. Davis, 318. Clapp V. Graves, 153. Clapp V. Hancock, 303. Clapp V. Rogers, 307, 646. Clapp V. Thomas, 497, 501. Clark V. Arnold, 30, 34. Clark V. Averill, 506. Clark V. Blackwell, 586. Clark V. Boggs, 389, 290, Clark V. Brewer, 334. Clark V. Brott, 9, 12, 16, 353, 433, 559, 681. Clark V. Bryan, 438, 433, 437, 445. Clark V. Callaghan, 7, Clark V. Chapman, 319, 336. Clark V. Cilley, 300. Clark V. Clark, 260. Clark V. Commissioners, 314 Clark V. Dean, 655. Clark V. Few, 304. Clark V. Foxcroft, 467. Clark V. Foxworthy, 640, 644. Clark V. Gamwell, 406. Clark V. Gardner & Trustee, 557. Clark V. Garther, 131. Clark V. Gibson. 273. Clark V. Great Barrington, 643. Clark V. Gresham, 636, 637. Clark V. Halliday, 424. Clark V. Hellen, 154, 165. Clark V. Holmes, 254, 428, Clark V. Ingraham, 43, 45, 507. Clark V. King, 301, 331. Clark V. Lamoreaux, 55, 488. Clark V. Lassen Co. Court, 444. Clark V. Miller, 61, 101, 109. Clark V. Montfort, 473. Clark V. Morse. 81. Clark V. N. J. Steam Nav. Co., 440. Clark V. Powell, 632. Clark V. Pratt. 36. Clark V. Raymond, 580. Clark V. Roberts, 131, 133, 475. Clark V. Shaw, 287, 388. Clark V, Skinner, 667. Clark V. Smith, 53. Clark V. Thompson, 433, 442, 443, 445. Clark V. Viles, 199. Clark V. Ward, 35. Clark V. Wilson, 318, 48S. Clark, Matter of, 349, 353, 445. Clarke v. Farnuni, 339. Clarke v. Likens, 35, 38. Clarke v. Meixsell, 360, 469, 648. Clarke v. Pratt, 37. Clarke v. Seatou, 47. Clarke Banking Co. v. Wright, 113. TADLE OF CASES. XXIX Tlie references are to pages. Clary v. Haines, 519, 520. Classon v. Morrison, 241, 296. Claussen v. Easterling, 482. Claussen v. Fultz. IG, 93, 94, 434. Clay V. Leather Co., 129. Clay V. Neilson, 228, 229, 244, 479. Clay V. Scott 554. Clayburg v. Ford, 115. Claypole v. Houston, 122. Cleland v. Tavernier, 3. Clement v. Clement, 272. Clement v. Hughes, 682. Clements v. Cassily, 526. / Clements v. Lacey, 504. Cleneay v. The Junction R R. Co., 353. Clerk T. Averill, 494. Cleveland v. Boden, 94, 106. Cleveland v. Rogers, 443. Cleveland v. Tufts, 683. Cleverly v. Brackett, 13. Climer v. Russell, 667. Clingman v. Kemp, 495. Clinton v. Estes, 575. Clinton N. Bank v. Bright, 365. Clodfelter v. Cox, 275, 301, 302. Close V. St. Clair, 498, 502. Clough V. Buck, 280, 623, 628. Clough V. Curtis, 548. Clowser v. Hall, 98. Clure V. Smith, 240. Clymore v. Williams, 4, 191, 238, 285, 287, 422, 426, 432, 447. Coarts V. Georgia, 166. Coates V. Roberts, 645. Cobb V. Bishop, 271. Cobb V. Force, 94, Cobb V. Gage, 220. Cobb V. Spieth, 180. Coble V. Nonemaker, 260, 307. Coburn v. Ansart, 274, 291. Coburn v. Currens, 645. Coburn v. Hartford, 272. Cochnovver v. Cochnower, 357. Cochran v. Fitch, 645. Cochrane v. Johnson, 234, 245. Cochrane v. Quackenbush, 12, 128, 677. Cochrane v. Rich, 566. Cockburn v. Watklns, 85. Cockey v. Leister, 289. Cockey v. Melne, 12, 586. Cockfield V. Tourres, 365. Cockrell v. McGraw, 466, 469. Cocks V. Varney, 545. Coda V. Thompson, 5, 338. Codington v. Gilbert, 202. Codman v. Freeman, 565. Coe V. Rocha, 625. Coe V. Wilson, 189. Coffin V. Ray, 397, 498, 562, 579, 610, 616. Coffin V. Still, 25. Coffin v. Stitt, 29. Coffman v. Brandhoefer, 149. Coflfrin v. Smith, 546. Cofrode v. Circuit Judge, 282. Coggswell V. Wilson, 394. Cohen v. Burr, 120. Cohen v. Gamble, 184 Cohen v. Insurance Co., 632. Cohen v. Manco, 80, 82. Cohen v. Smith, 158. Cohen v. Trowbridge, 247, 461. Cohens v. Virginia, 438. Cohn V. Hoffman, 502, Colin V. Justice, 405. Cohn V. Tillman, 365. Colby V. Coates, 289, 314 Colby V. Gould, 485. Colcord V. Daggett, 279. Coldwell V. Porcher, 498. Cole V. Aune, 57. Cole V. Cunningham, 509. Cole V. Dugger, 244. Cole V. Favorite, 501. Cole V. Flitcraft 645. Cole V. Hocha, 234. Cole V. Smith, 673. Cole V. Wooster, 289, 290, 550, 552. Coleman's Appeal, 3, 426, 433. Coleman v. Bean, 492, 527, 529. Coleman v. Hatcher, 263. Coleman v. Waters, 607. Collier v. Falk, 460. Collier v. ITanna, 31, 42, 183. XXX TABLE OF CASES. The references are to pages. Collins V. Burns, 527. Collins V. Chase, 182. Collins V. Duffy, 622. Collins V. Friend, 623. Collins V. Jennings, 646. Collins V. Mitchell, 513. Collins V. Perkins, 399. Collins V. Rose, 461. Collins V. Shannon, 691. Collins V. Smith, 396. Collins Granite Co. v. Devereux, 14. Colman v. Scott, 300, 301, 372. Colorado v. Pierson, 39. Colorado Bank v. Lester, 523. Colson V. Wilson, 499, 581. Colston V. Berends, 251. Colt V. Ives, 16, 300. Columbia Bank v. Ingersoll, 211, 303. Columbia Bank v. Spring, 182. Columbus V. Dunnick, 316. Columbus Ins. Co. v. Eaton, 332. Columbus Ins. Co. v. Hirsh, 365. Colvin V. Rich, 372. Col well V. Bank of Steuben ville, 252. Comer v. Reid, 3, 700. Commerce Bank v. Huntington, 284. Commercial Bank v. Chicago, etc., R. Co., 323, 508. Commercial Bank v. McLeod, 296. Commercial Bank v. Neally, 292. Commercial Bank v, UUman, 92, 107, 108, 125. Commercial N. Bank v. Chicago, etc., 511. Commercial N, Bank v. Farmers', etc., Bank, 329. Commissioners v. Bond, 812. Commissioners v. Thompson, 443. (Commissioners v. Watts, 595. Commonwealth v. Brigham, 210. Commonwealth v. Greene, 451. Commonwealth v. Intoxicating Liq- uors, 669. Commonwealth v. Manley, 203. Commonwealth v. Matthews, 669. Common wealtli v. Morse, 399. Commonwealth v. Stockton, 225. Comparet v. Ilanna, 501. Compress v. Mitchell, 64. Comstock V. Crawford, 441. Comstock V. Farnham, 653. Comstock V. Paie, 361. Conant v. Bicknell, 191, 285, 288. Conant v. Burns, 636. Concullu V. Insurance Co., 329. Congar v. Galena, etc., 443. Congdon v. Cooper, 395, 405. Conklin v. Couklin, 682. Couklin V. Butcher, 131. 465. Couklin V. Goldsmith, 138. Conklin v. Harris, 148, 184, 476. Conley v. Chilcote, 252, 503. Conly V. Wood, 690. Connell v. Scott, 213. Connelly v. Harrison, 300. Connelly v. Lerche, 5. Connelly v. Woods, 170. Conner v. Commissioners of Rice Co., 485. Conner v. Long, 221, 650. Connolley v. Chesebro, 258, 625. Connolly v, Edgerton, 235. Connolly v. Thurber, 296. Connor v. Follansbee, 51. Connor v. Pope, 5, 263, 353, 453. Connor v. Third N. Bank, 320. Conover v. Becket, 600. Conover v. Ruckman, 285, 290. Conrad v. Fisher, 689. Conrad v. McGee, 107, 122. Conrad v. Prieur, 534. Construction Co. v. Seymour, 66. Continental N. Bank v. Draper, 51. Conturie v. Hastie, 592. Conway v. Armington, 292, 294. Conway v. Ionia Judge, 263. Conwell V. Conwell, 605. Conwell V. Thompson, 4 Cook V. Boyd, 523. Cook V. Dillon, 265. Cook V. Farren, 253. Cook V. Field, 645. Cook V. Hallett, 330. Cook V. Hopper, 170. Cook V. Jenkins. 83. Cook V. Love, -607. TABLE OF CASES. XXXI The references are to pages. Cook V. New York, etc., Co., 114 Cook V. Pollard, 539. Cook V. Walthall, 271, 318. Cook V. Whitney, 340. Cooke V. Appleton, 25, 29. Cooke V. Cooke, 10. Cooke V. State National Bank, 24. Cooley V. Transfer R. Co., 325. Coolidge V. Wells, 504. Coone V. Braun, 371. Cooney v. ]\Ioroney, 406. Cooney v. Whitfield, 99. Cooper V. Berney N. Bank, 407. Cooper V. Clark, 48. Cooper V, Cooper, 591, 594. Cooper V. Hill, 677. Cooper V. Jerenson, 120. Cooper V. Johnson, 19. Cooper V. Mowry, 395, 405. Cooper V. McClun, 652. Cooper V. Metzger, 539, 564 Cooper V. Newman, 170, 222, 223. Cooper V. Peck, 514. Cooper V. Reeves, 472. Cooper V. Reynolds, 3, 4 482, 436, 438, 603. Cooper V. Smith, 120, 422, 434 Cooper V. Sunderland, 254. Cooper V. Trederick, 121. Coosa River St. Bt. Co. v. Barclay, 36. Copeland v. Insurance Co., 540. Copeland v. Weld, 199. Copp V. Williams, 186, 501. Corbin v. Goddard, 30. Corbit V. Corbit, 95. Corbyn v. Bollman, 289. Corcoran v. Judson, 696, 698. Corcoran v. Riddell, 234 Cordaman v. Maloue, 517, 656. Core V. Oil Land Co., 246, 249. Corey v. Powers, 270. Cornelius v. Davis, 253, 444. Cornell v. Dakin, 217, 404 Cornell v. Payne, 302. Corner v. Mackentosh, 224. Cornforth v. Maguire, 559, 561. Cornish v. Russell, 350, 367. Cornman's Appeal, 150. Cornwall v. Gould, 13. Corn well v. Hungate, 377, 654 Corpenny v. Sedalia, 62. Corrigan v. Nichols, 466. Corrothers v Sargent, 63. Cortelyou v. Maben, 519. Corthell v. Mead, 561. Corwin v. Merritt, 254, 428. Corwith V. Bank, 165. Cosner v. Smith, 89. Cosner's Adm'r v. Smith, 83, 114 Cossitt v. Winchell. 474. Coston V. Paige, 117, 485. Cota V. Mishovv, 388. Cota V. Ross, 640. Cottle V. American Screw Co., 648, 654. Cotton V. Huey, 162. Cottrell V. Varnura, 273, 303. Cotzhausen v. Judd, 193. Coulson V. Bank, 198, 681, 682. Countess of Rutland's Case, 554 County of Cass v. Johnston, 437. Courie v. Goodwin, 503. Courrier v. Cleghorn, 121. Cousens v. Lovejoy, 332. Cousins V. Al worth, 3, 228, 237, 240. Cousins V. Brashier, 9, 137, 678. Covell V. Heyman, 663. Covert V. Clark. 456. 457, 459. Covert V. Nelson, 301, 654 Covington v. Cothran, 239. Cowan V. Lowry, 648. Coward v. Dillinger, 122, 472, 475, 479. Cowardine v. Universal Life Ins. Co., 322. Cowdry v. Walker, 350. Cowles V. Coe, 304. Cowley V, McLaughlin, 397. Cowlon V. De Lisle, 484 Cox V. Dawson, 72, 73. Cox V. Donnelh', 496. Cox V. Milner, 495. Cox V. Reeves, 265. Cox V. Reinhardt, 74 Cox V. Robinson, 677, 684 Cox V. Waters, 88. XXXll TABLE OF CASES. The references are to pages. Cox Manuf. Co. v. August, 345, Coykeadall v. Ladd, 263, 322. Crabb v. Atwood, 253. Crabb y. Jones, 644. Cracken v. Harris, 504. Craddock v. Goodwin, 684. Craft V. Hubbard, 506. Craft V. Louisville, etc., Co., 505. Craft V. Summersell, 281, 508. Crafts V. Sykes, 582. Craig V. Fraser, 428. Craig V. Herring, 670. Craig V. Smith, 275. Craig V. Williams, 78. Craigmiles v. Hays, 104. Crain v. Gould, 268, 374. Cram v. Schackelton, 258. Cramer v. White, 604. Crandall v. McKay, 84, 118. Crane v. Freeze, 191, 285, 288. Crane v. Kimmer, 443. Crary v. Barber, 456. Cravens v. Wilson, 617. Crawford v. Benton, 568. Crawford v. Clute, 643. Crawford v. Foster, 526. Crawford v. Neal, 306. Crawford v. Newell, 10, 394. Crawford v. Nolan, 244, 562. Crawford v. Roberts, 74, 87, 88. Crawford v. Plade, 389, 648. Crayne v. Wells, 95. Crfeagh V. Delane, 84, Creasser v. Young, 108, 125. Creed v. Creed, 369. Creighton v. Kerr, 16, 421, 422, 433, 461, 463. Crescent Ins. Co. v. Beer, 275. Crescent Ins. Co. v. Moore, 322. Cress V. Blodgett, 274. Cressy v. Katz Man, Co., 413. Cribben v. Schillenger, 91, Crim V. Harmon, 15, 85. Crippen v. Jacobson, 563. Crisfield v. Neal, 394. Crisman v. Dorsey, 211. Crisman v. Matthews, 514 Crisman v. Swisher, 241. Crisp V, Fort Wayne, etc., R Co., 15, 363, 507, Crittenden v. Rogers, 394. Crocker v, Clements, 187. Crocker v. Pierce, 498. Crocker v. Radcliffe, 12, 544. Crofiford v. Yasser, 692, Croghan v, Livingston, 147. Cromwell v, Gallup, 42, Crone v, Braun, 536, 560. Cronin v. Foster, 282. Cropper v. Coburn, 183. Crosby v. Allyn, 206, 208, 231, 232l Crosby v. Hetherington, 154» Cross V. Brown, 394. Cross V. Elliott, 430. Cross V. Fombey, 549, 562. Cross V. Haldeman, 303. Cross V. McMaken, 90, 92, 123, 125. Cross V. Phelps, 170. Cross V. Richards, 631. Cross V. Spillman, 338, 339, 387. Cross V. United States, 250, 428. Grossman v. Grossman, 363. Grossman v. Rubber Co.. 500. Groswell v. Tufts, 622. Crouch V, Crouch, 114 Crow V, Beardsley, 51. Grow V. Lemon, 45, Crowell V, Galloway, 457, 461. Crowley v, Wallace, 440. Crowninshield v, Strobel, 12, 171, 544 620, Crownover v, Barnburg, 293. Ci'owns V. Vail, 81, Croxall V. Hutchins, 98. Crozier v, Shantz, 303. Gruett V. Jenkins, 378, 280. Grum V. Laidlaw, 534. Gruyt V. Phillips, 529, Gudahy v. Rinehart, 129, 174 Gulbertson v, Cabeen, 104 105, 689. Cullers V. City Bank, 362. Culver V. Rumsey, 213. Gumming v. Brown, 601. Cummings v. Denny. 148, 477. Gummiugs v. Fearey, 307. Cummings v. Garvin, 292. TABLE OF CASES. XXXIU The references are to pages Cummings v. Tabor, 245, 246, 354. Cuniniings v. Voice, 72. Cummins v. Tovey, 562. Cunningham v. Butler, 509. Cunningham v. Goelet, 464. Cunningham v. Gushee, 546. Cunningham v. Hogan, 526, 586. Cunningham v. Jacobs, 128. Cunningham v. Lamar, 138, 142, Cunningliam v. Pac. R. R. Co., 441. Cuny V. The National Bank of Au- gusta, 374, 384, 636. Cureton v. Dargan, 236, 465. Curiae v. Packard, 515. Curie V. Insurance Co., 298. Curling v. Hyde, 205, 292. Currens v. Ratcliffe, 237, 487. Curry v. The National Bank of Au- gusta. 356. Curry v. Woodward, 361, 479, 641. Curtis V. Alvord, 270. Curtis V. Ford, 286, 637, Curtis V. Henrietta Bank, 345, 347. Curtis V. Hoadley. 52. Curtis V. Hollingshead, 46. Curtis V, Hoxie, 57. Curtis V, Jackson, 457. Curtis V. Moore, 108. Curtis V. Munday, 563. Curtis V. Norris, 268, Curtis V. O'Brien, 503. Curtis V. Raymond, 268. Curtis V. Settle, 92. Curtis V. Smith, 284, Curtis V. Ward, 681. Curtis V. Wortsman, 195, Curwensville Manuf. Co, v. Bloom, 119, 228. Cushing V. Hurd, 563, 610, 616. Cushing V. Laird, 386. 622. Cushman v. Haynes, 300. Custer V. White, 643. Cutcheon v. Weston, 530. Cutler V. Baker, 346. Cutler V. Evans, 527. Cutler V. Lang, 64, 473, Cutter V. Gould, 209. Cutter V. Howe, 394, 437, 433, C Cutter V. Perkins, 273. Cutter V. Richardson, 114, 481, 530. Cutters V. Baker, 268. Cutts V, Perkms, 300. D. Daggett V. McClintock, 563. Daggett V. Robins, 667. Dahms v. Sears, 296, Daily v. Jordan, 263. Daily v. Litchfield, 660. Daker v. Fuller, 401. Dakin v. Hudson, 254, 443, 443. Daley v. Cunningham, 239, Dall V. Cooper, 128, 428, 684. Dalsheimer v. McDaniel, 63. Dal ton V. Bowker, 698, Dalton \. Shelton, 75. Dame v. Fales, 216. Damon v. Bryant, 170. Damron v. Sweetzer, 697. Dana v. Adams, 464, Danaher v. Prentiss, 501, 549. Dandridge v. Stevens, 92, 125. Danforth v. Carpenter, 142. Danforth t. Penny, 284, 335. Danforth v. Rupert, 487, Daniel v. Daniels, 620. Daniel v. Mitchel, 592, 593. Daniels v. Clark, 388. Daniels v. Eldredge, 265. Daniels v. Lewis, 539. Daniels v. Man, 506. Daniels v. Meinhard, 322, 336, 350. Daniels v. Sorrells, 562. Daniels v. Willard, 297. Danielson v. Andrews, 164. Darborrow's Appeal, 183. D'Arcy v. Ketchum, 448, 450. Darlington v. Rogers, 331, Darnall v. Wood, 637. Darrance v. Preston, 434, 448, 451. Darst V. Levy, 564, Darwin v. Hatfield, 595. Davenport v. Ijacon. 10. Davenport v. McChesney, 268. Davenport v. Swan, 505, XXXIV TABLE OF CASES. Tlie references are to pages. Davenport v. Til ton, 622. David V. Bircliard, 49, 193. Davidson v. Chatham Bank, 201, 658. Davidson v. Clayland, 287, 483. Davidson v. Donovan, 319. Davidson v. Hackett, 120. Davidson v. Owens, 71. Davidson v, Waldion, 394. Davies v. Gallagher, 296. Davis V. Baker, 207. Davis V. Blunt, 577. Davis V. Commonwealth, 136, 677. Davis V. Dallas N. Bank, 222, 233. Davis V. Davis, 292, 293, 544. Davis v. Day, 502. Davis V. Drew, 292. Davis V. Edwards, 93, 106. Davis V. Eppiuger, 543. Davis V. Fogg, 558. Davis V, Fried lander, 620. IDavis V. Garrett, 495. Davis V. Ham, 272. Davis V. Jenkins, 154. Davis V. Jones, 254. Davis V. Knapp, 381. Davis V. Land, 495. Davis V. Mahoney, 285, 405, 463. Davis V. Marshall, 139, 137, 476, 477. Davis V. Marston, 265. Davis V. Megroz, 3, 5, 183. Davis V. Miller, 401. Davis V. Montgomery, 329. Davis V. Morris, 585. Davis V. Moss, 190. Davis V. Oakford, 379. Davis V. Owenby, 577. Davis V. Pawlette, 271. Davis V. Railroad, 592. Davis V. Stone, 225, 394, 427, 433. Davis V. Summit, 263. Davis V. Tallot, 501. Davis V. Taylor, 299. Davis V. Webster, 503. Davis V, Willcy, 262. Davis v. Wilson, 268. 269. Davis, etc., Co. v. Whitney, 397. Davis Lumber Co. v. Bank, 363, 372. Dawes v. Rodier, 187. Dawley v. Shervvin, 103. Dawson v. Baum, 682. Dawson v. Contee, 601. Dawson v. Holcomb, 190, 285, 287. Dawson v. Jones, 653. Dawson v. Maria, 364. Dawson v. Miller, 487. Dawson v. Moons. 240. Dawson v. Sims, 167. Dawson, In re, 646. Day V. Bach, 135, 169. Day V. Bennett, 111, 484, 485. Day V. Insurance Co., 272. Day V. Kendall, 51, 575. Day V. Newark India Rubber Co., 440. Day V. Zimmerman, 279. Deacon v. Oliver, 200. Deal V. Bogue, 619. Dean v. Bailey, 399, Dean v. Davis. 568. Dean v. Garnet, 479. Dean v. McGavock, 285. Dean v. Oppenheimer, 100, 106, 428. Dean v. Stevenson, 621, 677. Dearborn v. Vaughan, 467. Dearing v. Watkins, 567. Deaver v. Keith, 271. De Bebian v. Gola, 109, 280. De Blank v. Webb, 855. Deblieux v. Dotard, 293, 295. Debs V. Dalton, 336, S57, 645, 651. Debys v. Yerbey, 31. Decatur Mercantile Co. v. Deford, 500. De Caussey v. Bailey, 59. De Celis v. Porter, 617. Decker v. Bryant, 118. Decoster v. Livermore, 239. Deere v. Bagley, 683. Deere v. Wolf, 177. Deering v. Collins, 60. Deering v. Warren, 73, 101, 180. De Forest v. Miller, 183. Degnan v. Wheeler, 484. Dehler v. Held, 659. Dehner v. Helmbacher Forge, etc., Mills, 279. Dehon v. Foster, 509, 510. TABLE or CASES. XXXV Tlie references are to pages. Delacroix v. Hart, 339. Delamator v. Miller, 162. Delano v. Kennedy, 490. Delaplain v. Rogers, 79. Delaplaine v. Armstrong, 15, 86, 95. Delby v. Tingley, 377, 650. De Leon v. Heller, 69, 82. Delmas v. Insurance Co., 438. Delmas v. Morrison, 419. Delmoro •«^. Owen, 468. Deloacli ", Jones, 96. Demeritt v. Estes, 638. Dempsey v. Bowen, 52. Dempsey v. Gardner, 197. Denegre v. Milne, 72. Denning v. Corwin, 442. Dennis v. Twitchell, 298. Dennison v. Benner, 299. Dennison v. Blunienthal, 166. Dennison v. Nigh, 203. Dennison v. Taylor, 255, 359. Dennistown v. New York, etc., 288. Denny v. Ward. 114, 585. Denny v. Warren, 404. Denny v. Willard, 401. Densniore v. Matthews, 662. Dent V. Smith, 9, 12, 673, 680, 689. Denton v. Livingston, 199, 244. Denver, etc., R Co. v. Smeeton, 381, 509. Dequindre v. Williams, 441. Derby v. Shannon, 540. Derr v. Lubey, 308. Derra v. Bagby, 485. Derrickson v. Shovvell, 71. Dery v. McHoury, 7. Describes v. Wiliner, 356. Deska v. Baker, 227, 341. Des Moines Bank v. Hotel Co., 390. Des Moines & Minn. R. R Co. v. Alley, 426, 459. Desmond v. Levy, 557. Desmond v. State, 499. Despain v. Crow, 274. Despatch Line v. Bellamy Manuf. Co., 271, 412. Dessauer v. Koppin, 275. De Stafiford v. Gartley, 62, 91. Detroit Free Press Co. v. Association, 105. Deti-oit Post and Tribune Co. v. Reilly, 262. Detroit Stove Works v. Osmun, 269. Deupree v. Eisenach, 122, 475. Devall V. Taylor, 105. De Verdal v. Maloone, 567. Devoe v. Brandt, 197. Devon V. Brownell, 301. Devries v. Summitt, 15, 93, 114, 121, 434. Dew V. Bank of Ala., 359. Dewey v. Field, 657. Dewey v. Garvey, 308. Dewey v. Green, 97. Dewing v. Wentworth, 289. De Witt V. Kelly, 640. De Witt V. Machine Co., 510. De Witt V. Oppenheimer, 217, 657. De Wolf V. Armstrong, 48. De Wolf V. Babbett, 580. De Wolf V. Dearborn, 13, 188. Dey V. Dunham, 577. Deyo V. Jeunison, 220. Dibnell v. Neely, 389. Dick V. Bailey, 395. Dicken v Hays, 193. Dickenson v. Cowley, 106. Dickey v. Fox, 302, 304. Dickinson v. Barnes, 483. Dickinson v. Benham, 54, 472, 484. Dickinson v. Clement, 261. Dickinson v. Dickinson, 74, 272. Dickinson v. Haj'es, 7. Dickinson v. Maynard, 12, 676, 690. Dickinson v. ^IcGraw, 678. Dickinson v. Strong, 260. Dickman v. Williams, 198. Dickson v. Maj'er, 95. Dider v. Courtnej% 689. Didier v. Galloway, 476. Diefendorf v. Oliver, 306. Dierolf v. Winterfield, 5, 491, 521. Dieter v. Smith, 268. Dietrich v. Lang, 60. Diettrich v. Wolffsohn, 165. Dinkelspiel v. Woolen Mills, 100. XXX VI TABLE OF CASES. The references are to pages. Dilleuback v. Jerome, 399. Dillon V. Watkins, 138. Dingley v. Buffum, 190. Dintruff v. Tuthill, 95. Divine v. Harv ie, 308, 316. Divver v. McLaughlin, 268. Dix V. Cobb, 653. Dixon V. Barnett, 578. Dixon V. Hill, 539. Dixon V. Lacoste, 562. Doan V. Garretson, 269. Dobbins v. Hyde, 300, 304, 659. Dobbins v. Railroad, 308. Dobbs V. The Justices, 184. Doctors K. & K. v.. Post, etc., Co., 469. Dodd V. Brott, 301. Dodd V. Levy, 77, 314. Dodds V. Gregory, 378. Dodge V. Kniglit, 501. Dodge V. Walley, 6l8. Dodson V. Cooper, 681. Doe V. Anderson, 254, 458. Doe V. Routlege, 578. Dogan V. Cole, 13. Doggett V. Bates, 269. Doggett V. Bell, 48. Doggett V. Black, 513. Doggett V. Insurance Co., 635. Dolan V. Armstrong, 486. Dole V. Boutvvell. 645. Doll V. Cooper, 692. DoUins V. Lindsay, 77, 406, 544. Dollins V. Pollock, 253, 487, 576. Doll man v. Moore, 317. Dolsen v. Brown, 300. Dominick v. Eacker, 165. Donald v. Nelson, 352, 382. Donham v. Wild, 395. Dounell v. Byern, 113. Donuell v. Jones, 128, 684, 691, 692. Donnell v. Portland, etc., R. Co., 262, 649. Donnelly v. Corbitt, 73. Donnelly v. Elser. 90. Donnelly v. O'Connor, 112, 142, 367, 383, 556. Donnelson v. Colerain, 312. Doolittle V. McCulIough, 681. Doolittle V. Shelton, 4, 606, 61t Doran v. Cohen, 68. Dore V. Dawson, 301. Dore V. Dougherty, 352. Dorham v. Kane, 395. Dorn V. Blake, 622. Dorr V. Clark, 83. 84. Dorr V. Gibboney, 457. Dorr V. Kersliaw, 522, 525. Dorrier v. Masters, 394. Dorsey v. Kyle, 128, 305. Dotterer v. Bowe, 312. Douch V. Rahuer, 498. Douglas V, Orr, 210. Douglas V. Simpson, 301. Douglas Co. Nat. Bank v. Sands, 50. Douglass V. Cissna, 44. Douglass V. Habestro, 461. Douglass V. Insurance Co., 751. Douglass V. Neil, 377. Douglass V. Winslow, 618. Dove V. Martin, 141. Dow V. Cheney, 499. Dow V. Humbert, 66. Dow V. Whitman, 252, 253, 254, 434. Dower v. Curtis, 272. Downer v. Shaw, 3, 426, 433. Downing v. Phillips, 482. Downman v. Chinn. 517. Downs V. Flanders, 239. Downs V. Fuller, 433. Doyle V. Gray, 271, 366, 367, 373, 386. Drago V. Moso, 65. Drake v. Hager, 108. Drake v. Lake Shore R. Co., 324, 379, 510, 511. Drake v. Leigh ton, 297. Drake v. Mooney, 230, 241. Drnke v. Railway Co., 363. Drake v. Sworts, 514, 631, 700. Drakeford v. Turk, 74. Drane v. McGavock, 287. Dray Co. v. Hoefer, 692. Drennon v. Ross, 650. Dresser v. Cutter, 493. Dressor v. McCord, 261. Drew V. Alfred Bank, 164. TABLE OF CASES. XXXVll Tlie references are to pages. Drew V. Dequindre, 84, 93, 252, 481. Drew Glass Co. v. Baldwin, 194. Drej'fus v. Maj'er, 536. Driesbacli v. Bank, 213. Driggs V. Harrison, 519. Dr-ecoll v. Hoyt, 371, 384 Dronillard v. Whistler, 60. Droz V. E. Baton Rouge, 316. Drummond v. Stuart, 688. Dryden v. Adams, 268. Dryer v. Abercrombie, 74 Dryer v. Lewis, 115. Dry -goods Co. v. ]McPheeh', 48. Drysdale v. Biloxi, 151. Dubbs V. Hemken et al., 251. Dublin V. Chadburn, 7. Dubois V. Dubois, 191, 285, 287. Dubois V. Glaub, 464 Duchaud v. Rousseau, 209. Ducker v. Ware, 556. Dudley v. Falkuer, 260. Dudley v. Goodrich, 528. Duffee V. Call, 636. , Duffy & Mehaffy v. Lytle, 521, 524. Duitruff V. Tuthill, 106. Duke V. R I. Locomotive Works, 330, 362. Dumay v. Sanchez, 104. Duncan v. Headley, 39, 95, 184 Duncan v. Ware, 650. Duncan v. Wickliffe, 69. Duncan's Heirs v. United States, 437. Duncanson v. Bank, 214. Dunham \. Waterman, 55. Duuklee v. Fales, 210, 213, 427, 433. Dunlap V. Dillard, 471. Dunlap V. Hooper, 508. Dunlap V. McFarland, 118. Dunlevy v. Schwartz, 61, 97. Dunlop V. Pat. F. Ins. Co., 180, 267, 289, 290, 334 Dunn V. Crocker, 70, 470, 529, 609. Dunn V. Mackey, 70, 89. Dunn V. McAlpiue, 21. Dunn V. Missouri Pac. R Co., 353. Dunn V. Myers, 54. Dunn V. Salter, 39. Dunnegan v. Byers, 273, 303. Dunnenbaum v. Schram, 106. Dunning v. Humphrey, 135, 680,693. Dunsmoor v. Furstenfeldt, 290. Dupierris v. Hallisay, 302. Dupree v. Woodruff, 684 Du Puy V. Strong, 457. Durant v. Johnson. 555. Durham v. Lisso, 146. Duringer v. Moschino, 621. Durling v. Peck, 373. Durr V. Hervey, 45, 105. Durr V. Jackson, 42, 686, Durrossett's Adm'r v. Hale, 253. Dutton V. Simmons, 165, 244, 864 Dwight V. Bank of Michigan, 300. Dwight V. Brown, 576. Dwight V. Merritt, 165. Dwinel v. Stone, 272. Dwyer v. Benedict, 403. Dwyer \. Testard, 61, 121, 159. Dyer v. Flint, 83, 98. Dyer v. McHenry, 373. Dyer v. Sharp, 127. Dyett V. Hyman, 177. Dynes v. Hoover, 442. Dynes v. Robinson, 484 Dyson v. Baker, 220, 221. E. Eads V. Pitkin, 121. Eagan v. Luby, 302. Ealer v. McAllister. 470. Earl V. Bicksford, 595. Earl V. Camp, 93, 121, Earl V. Matheney 629. Earl V. Spooner, 677. Earle v. McVeigh, 603. Early v. Doe, 251. Earthman v. Jones, 424. East, etc., Co. v. Warren, 148. East Line, etc., R R Co. \. Terry, 383, 384. Eastman v. Avery, 399. Eastman v. Clackamas Co., 614 Eastman v. Thayer, 271. Easton v, Goodwin, 519. Easton v, Malavasi, 119. XXX VIU TABLE OF CASES. Tlie references are to x>ages. Easton v. Ormsby, 528. East Tenn., etc., Co. v. Kennedy, 258, 334. Eaton V. Badger, 422. 433, 442, 451. Eaton V. Bartscherer, 677. Eberly v. Eowland, 29. Ebner v. Bradford, 77. Eby V. Watkins, 42. Eck V. Hoffman, 25. Eckman v. Hammond, 143, 676. Eckraan v. Munnerlyn, 49. Eddy V. Heath's Garnishees, 260. Eddy V. Moore, 5, .514. Eddy V. Morse, 521. Eddy V. O'Hara, 508. Eddy V. Providence. 363. Eddy V. Weaver, 544. Edgarton v. Hinchman, 465. Edgell V. Sigerson, 557. Edgerly v. Sanborn, 263. Edgerton v. Third Municipality of New Orleans, 315, 316. Edick V. Green, 86. Edler v. Hasche. 351. Edmundson v. De Kalb Co., 316, 338. Edmundson v. Phillips, 62. Edney v. Willis, 274, 278. Edrington v. Allsbrooks, 341. Edson V. Coburn, 496. Edson V. Pawlet, 273. Edson V. Sprout, 388. Edson V. Trask, 265. Edwards v. Bodine, 698. Edwards v. Cosgro, 375. Edwards v. Delaplaine, 373. Edwards v. Hughes, 466. Edwards v. Levisohn, 374. Edwards v. Prather, 490, 492. Edwards v. Pomeroy, 520. Edwards v. Roepke, 272, 509. Edwards v. Toomer, 428, 432, 434, 442. Edwards v. Turner, 136. Egan V. Lumsden, 3, 33, 426. Egener v. Juch, 30. Egerman v. Krieckhaus, 77. Eggleston v. Munday, 568. Eichelberger v. Murdock, 259. Eisenhardt v. Cabanne, 486. Ela v. Shepard, 169, 232. Elam V. Barr, 91, 105. Elder v. Cutner, 682, 697. Eldred v. Bank, 464. Eldridge v. Lancy, 223. Eldridge v. Phillipson, 54, 55, Eldridge v. Robinson, 484. Ellicott V. Smith, 277. Ellington v. Moore, 25, 28, 33. Elliot v. Jackson, 72, 76, 473. Elliot V. Stevens, 143. Elliott V. Bowman. 200, 210. Elliott V. First N. Bank, 460. Elliott V. Hall, 495. Elliott V. Heath, 104. Elliott V. Keith, 41, Elliott V. Piersol, 436, 442, 449. Elliott V. Plukart, 129. Elliott V. Stocks, 180. Ellis V. Alien, G80. Ellis V. Bonner, 223, 690, 691. Ellis V. Goodnow, 644. Ellis V. Harris, 73. Ellis V. Harrison, 72, 73. Ellison V. Bernstein, 47. Ellison V. Mounts, 474, 487. Ellison V. Tallon, 88. 485. Ellison V. Tuttle, 200. Ells V. Tousley, 617. Ellsworth V. Moore, 130. Ellsworth V. Scott, 465, 518. Elmer v. Welch, 259, 274. Elser V. Graber, 16, 517. Elser V. Rommel, 265. Elston V. Gillis, 301. Elston V. Robinson, 504. Elsworth V. Phelps, 568. Elwell V. Chamberlin, 596. Elwood V. Crowley, 362. Elwyn V. Jackson, 534, 535. Elyton V. Land Co., 336. Emanuel v. Mann, 516. Emanuel v. Smith, 623. Enibra v. Silliman, 479. Embree v. Hanna, 643. Embury v. Connor, 443. Emerson v. Detroit, etc., Co., 107, 110. TABLE OF CASES. XXX IX Tlie references are to pages. Emerson v. Littlefield, 498. Emerson v. Paine, 75. Emerson v. Skidmore, 81. Emerson t. Spring Co., 106. Emerson v. L'pton, 240. Emery v. Bidwell, 365. Emery v. Davis, 265. Emery v. Lawrence, 303. Emery v. Royal, 624, 651. Emery v. Yount, 208, 545. Emery's Sons v. Irving National Bank, 199. Em mitt V. Yeigh, 86. Emmons v. Soutliern Tel. Co., 506. Emory Iron and Coal Co. v. Wood, 88. Empire Mills v. Lovell, 691. Empire Type Co. v. Grant, 533. Endel v. Leibrock, 61, 69. Enders v. Richards, 52. Enders v. Steamer, 470. Endress v. Ent, 52, 491. Eneking v. Clay, 94. Enger v. Scheuerman, 509. English V. King, 263. English V. Wall, 83. Ennis v. Smith, 7. Enos V. Brown, 400. Enworth v. King, 543. Ephraim v. Kelleher, 50. Epping V. Aiken, 77. Epstein v. Salorgne, 4, 5, 351, 453, 521. Epstin V. Levensou, 112. Erie \. Knapp, 16. Erskine v. Hohnbach, 169. Erskine v. Staley, 10, 412, 454, 550. Erstein v. Rothschild, 66, 117, 437, 440. Erwin v. Com. & R. R. Bank, 676. Ervvin v. Commercial Bank, 121, 476. Erwin v. Ferguson, 129, 148. Erwin v. Heath, 4, 5, 69, 377, 521, 623, 629. Espenhair v, Meyer, 73, 539. Espey V. Heidenheimer, 60, 472. Espy V. Comer, 193. Essex Co. Bank v. Johnson, 61, 9i3. Estahrook v. Earle, 256, 293. Estbrook v. Estbrook, 122. Estes V. Chesney, 683. Estes V. Fry, 48, 52. Estill V. Goodloe, 271. Estlovv V. Hanna, 56, 57. Ether idge v. Wood ley, 458. Eureka Co. v. Sloteman, 473. Evans v. Andrews, 472. Evans v. Brovvnscombe, 330. Evans v. Davis, 244. Evans v. King, 456, 482. Evans V. Lawson, 81, 113, 159, 514. Evans v. McGlasson. 618. Evans v. Matlock, 643. Evans v. Mohn, 357. Evans v. Parks, 14. Evans v. Saul, 37. Evans v. Snyder, 572. Evans v. Tucker, G2, 100. Evans v. Virgin, 45, 55, 207, 488. Evans v. Warner, 49. Eveleth v. Little, 242. Everdell v. Sheboygan, etc., R. R. Co., 328, 348, 459, 461. Everett v. Walker. 288. Everett v. Wesimoreland, 520. Everett v. Wolcott, 299. Everingham v. Vanderbilt, 78. Everitt v. Everitt Manuf. Co., 541. Evert on v. Powell. 376. Ewing v. City of St. Louis, 438. Excelsioi', etc., Co. v. Haines, 263. Excelsioi', etc., Co. v. Lukens, 611. Exchange Bank v. Freeman, 393. Exchange Bank v. Gulick, 266. Eyermanv. Krieckhaus, 257. Eyssallenne v. Bank, 516. Eyster v. Gaflf, 407. Ezelle V. Simpson, 228, 237. P. Fairbanks v. Bennett, 16, 163. Fairbanks v. Lorig, 109. Fairbanks v. Sargeant, 302. Fairbanks v. Stanley, 467. Fairfield v. Baldwin, 585. Fairfield v. Madison Manuf. Co., 470. xl TABLE OF CASES. The references are to pages. Fairfield v. Paine, 235, 545. Falls V. Weissinger, 394. Falsom v. Haskell, 259, Falvey v. Aclamson, 482. Fanning v. First Nat. Bank, 494, 505. Fargo V. Ames, 566. Farley v, Farior, 61. Farmer v. Medcap, 319. Farmer v. Simpson, 645, Farmers' Bank v. Beaston, 191, 285. Farmers' Bank v. Fonda, 72. Farmers' Bank v. Gettinger, 83. Farmers', etc., Co. v. Minn. Works, 563. Farmers', etc., Nat. Bank v. King, 270, 328. Farmers' & Mechanics' Bank v. Welles, 350. Farmers' & Merchants' Bank v. Fi-anklin Bank, 373. Farnham v. Oilman, 395. Farnsworth v. Childs, 577. Farr v. Newman, 287. Farrar v. Bates, 639. Farrar v. Olmstead, 6. Farrar v. Talley, 676, 686. Farriugton v. Edgerly, 403. Farrington v. Sexton, 387, 638. Farris v. The State, 395, 399, 403. Farrow v. Barker, 27, 32, 33. Farrow v. Hayes, 83. Farwell v. Chambers, 258, 339, 349, 392. Farwell v. Circuit Judge, 282. Farwell v. Furniss, 54. Farwell v. Howard, 364, 371, 383, 384. Farwell v. Wilmarth, 297. Farwell v. Wright, 48, 74. Fast V. Wolf, 312. Faulk Y. Smith, 245, 434. Faulkner, In re, 34, 92, 97, 119, 121, 122, 529. Faulkner v. Brigel, 136. Faulkner v. Waters, 272. Faulks V. Heard, 625. FauU V. Alaska G. & S. M. Co., 336. Faver v. Bank of Alabama, 80. Fay V. Sears, 363, 365, 366, 371. Fay V. Smith, 273. Fearey v. Cummings. 383. Fearing v. Shafner, 290. Fearle, Ex parte, 285. Fears v. Thompson, 241, 500. Feary v. Cummings, 263, 306. Feary v. Hotchkiss, 205. Feathei-ston v. Compton, 359. Feazel v. Cooper, 234. - Feazle v. Simpson, 691. Fechheimer v. Hays, 69. I'eder v. Solomon. 615. Fee V. Iron Co.. 586. Fee V, Moore, 539, 564. Fee V. State, 357. Fee V. The State ex rel. Pleasant, 462. Feikert v. Wilson, 3. Felch V. Eau Pleiue Lumber Co., 267, 860. Felker v, Emerson, 700. Fellows V. Brown, 75. Fellows V. Commercial Bank, 195. Fellows V. Dickens, 477. Fellows V. Duncan. 277. Fellows V. Miller, 135, 478. Fellows T, Smith, 506. Fellows Y. Wadsworth, 400. Felton Y. Wadsworth, 548. Fenglin v. Cairo & St. Louis R. R. Co., 232, 353. Fenn y. Holme, 438. Fenton y. Block, 258, 641. Fenton y. Fisher, 290. Feran v. Rudolphsen, 187. Ferguson y. Baker, 698. Ferguson v. Chastant, 52. Ferguson y. CravYford, 3. Ferguson v. Gilbert, 540. Ferguson y. Glidewell, 490, 522. Ferguson y. Smith, 112. Ferguson y. Vance, 45, 433, 521, 528. Fernald v. Chase, 201, 203. Fernau y. Butcher, 521. Ferris y. Carlton, 118. Ferris v. Ferris, 75. Fessenden y. Hill, 84. Fettyplace y. Dutch, 395. Fewlass v. Abbott, 364. TABLE OF CASES. xli The references are to pages. Fidelity Ins. Co. v. Railroad Ck)., 329. Field V. Adreon, 39. I'ield V. Crawford, 259, 293. Field V. Dutch, 3, 10. Field V. Haines, 306. Field V. Jones, 289, 290. Field V. Langsdorf, 300. Field V. Livermore, 54. Field V. McKinney, 506, 653, Field V. Malone, 384. Field V. Milburn, 543, Field V. Park, 102. Field V. Watkins, 363, Fielder v. Jessup, 324, 509. Fieldino; v. Lucas, 28. Fife V. Clark, 492, 521. Fifield V. Wood, 457. Fifield V. Wooster, 162, 163. Final v. Backus, 582. Finch v. Earl of Winchelsea, 617, Finding v. Hartman, 198. Fink V. Philps, 575. Finley v. Bryson, 57. Firebaugh v. Hill, 443. Firebaugh v. Stone, 388, First V. Miller, 191, 285, 287, First Baptist Church v. Hyde, 370, First Nat Bank v. Bank, 568, First Nat. Bank v. Burch, 325, 327, 333. First Nat, Bank v. Carter, 562, First Nat. Bank v, Cochran, 540, First Nat. Bank v. Davenport, etc., R. Co., 328. First Nat. Bank v. Gandy, 260, First Nat. Bank v, Gerson, 568. First Nat. Bank v. Graham, 388, 508. First Nat. Bank v. Greenwood, 6, 194, 234, 461, 467, 541, First Nat. Bank v, Hauchett, 16, 288. First Nat. Bank v. Houts, 225, 683. First Nat. Bank v. Hughes. 572, 578. First Nat. Bank v. Jaggers, 506. First Nat. Ban!- v. Kansas City Lime Co., 557. First Nat. Bank v. Leppel, 352. First Nat. Bank v. Light Co., 209, 211. First Nat. Bank v. Lumber Co., 194. First Nat. Bank v, ]\ross, 78. First Nat Bank v. North. 171. First Nat. Bank v, Ottawa, 316. First Nat Bank v. Perry, 268, First Nat Bank v, Portland, etc, R Co., 299. First Nat Bank v, Ragan, 74, First Nat Bank v. Railroad Co., 260, First Nat Bank v. Ranch Co.. 563, First Nat Bank v, Randall, 471, First Nat. Bank v. Redman, 1.5. First Nat Bank v. Robertson, 364, 369. First Nat Bank v. Rosenfield, 56. First Nat Bank v, Stanley, 413. First Nat Bank v, Steele. 106. First Nat Bank v. Swan, 57, 474. First Nat Bank v. Turner, 388, First Nat Bank v. Van Brocklin, 302. First Nat Bank v, Weckler, 487, 512. Fish V. Field. 271. Fish V. Fowlie, 207, Fish V, Keene3', 376, Fish V, Street, 592. Fisher v. Consequa, 70, 483. Fisher v. Hall, 337. Fisher v. Hood, 473, Fisher v. Lane. 3, 426, Fisher v. Marsh. 602. Fisher v. McGirr. 669. Fisher v. Secrist, 63. Fisher v. Tallman, 579. Fisher v, Taylor. 466. Fisher v. Williams. 42, 369. Fisher v. Vose, 46.3. Fisk V, Aldrich, 392. Fisk V. Weston, 304, 384. Fitch V. Hammer. 72. Fitch Y. Rogers, 427, 433. Fitch v. Ross, 3, 426, 433. 521. Fitch V. Waite, 11, 32, 37, 39, 171, 199, 201. Fitch V. Workman, 307. Fitch. Matter of. 92, 97, 118. Fitchett V. Dolbee, 292. Fithian v. N, Y, & Erie R. Co., 323, 333. Fitzgerald v. Blake, 217. xlii TABLE OF CASES. The references are to pages. Fitzgerald v. Hollingsworth, 257. Fitzgerald v. McMurran, 33. Fitzgerald, Matter of, 27, 32, 40. Fitzgerald's Case, 39. Fitzhugh V. Hellen, 206. Fitzpatrick v. Flagg, 696, 698. Fitzpatrick v. Flannagan, 3, 4, 5, 54, 55, 113, 116, 305, 481. Fitzsimnions v. Marks, 3, 4, 426, 448. Fladland v. Delaplaine, 246, Flake v. Day, 16. Flanagan v. Cutler, 181, 565, 654, 662. Flanagan v. Gilchrist, 681. Flanagan v. Wood, 403, 429, 433. Flandrow, Ee, 291. Flannagan v. Donaldson, 43. Flash V. Morris, 381. Flash V, Paul, 341, 377. Fleetwood v. Dwight, 681. Fleicher v. Green wald, 303. Fleisch v. St. Louis N. Bank of Com- merce, 200. Fleischman v. Bowser, 578. Fleischner v. Cable Co., 117. Fleitas v. Cockrem, 134, 135. Fleming v. Bailej% 680, 685. Fleming v. Burge, 87. Flersheim v. Cary, 568. Fletcher v. Fletcher, 189. Fletcher v. Harcott, 174. Fletcher v. Menken, 518, 530. Fletcher v. Morrell, 406. Fletcher v. Pack, 577. Fletcher v. Ware, 354, 506, 654. Flexner v. Dickerson, 113, 434. Fling V. Goodali, 577. Floege V. Wieduer, 198. Flood V. Randall, 14, 165. Florence v. Orleans, 534. Florentine v. Barton, 441. Fiorsheim, etc., Co. v. Commission Co., 163. Flournay v. Lyon, 505, 684. Flourney v. Rutlege, 360. Flower v. Griffith, 91, 103. Flower v. Parker, 645. Flowers v. Miller, 42. Floyd V. Black, 254. Floyd V. Hamilton, 684. Floyd County Ag. and Mechan. As- sociation V. Tompkins, 461. Focke V. Blum, 291, 695. Focke V. Hardeman, 60, 110, 117. Fogg V. Littlefield, 503. Fogleman v. Shively, 261. Fogler V. Marston, 299. Foley, In re, 570. Folkerts v. Standish, 269. Folsom V. Connors, 254, 260, 293. Folsom V. Teichner, 465. . Foot V. Stevens, 586. Foran v. Johnson, 110, 111. Forbes v. Hyde, 464. Forbes v. Navra, 514, 556. Forbes v. Scannell, 55. Force v. Brown, 292, 293, 295. Force v. Gower, 3, 428. 433. Ford V. Detroit Co., 349. Ford V. Dock Co., 15, 275, 282, 350. Ford V. Dyer, 170, 222. Ford V. Hurd. 130, 138, 360, 422, 476. Ford V. Wilson, 251. Ford V. Woodward, 9, 137, 860. Foreman v. Carter, 34. Forepaugh v. Appold, 298. Forlina v. Troolicht, 42. ' Forrest v. O'Donuell, 514. Forsyth v. Warren, 251, 255, 606. Fortenheim v. Claflin, 82, 83, 110. Fort V. Stroheeker, 626. Fort Madison, etc. v. Bank, 214. Fort Worth, etc., Co. v. Hitson, 460, 700. Fortman v. Rottier, 490. Fortune v. State Bank, 258. Fortune v. St. Louis, 316. Foss V. Stuart, 170, 222, 223. Foster v. Byrne, 507. Foster v. Dryfus, 609, 611. Foster v. Dudley, 271. Foster v. Glazener, 443. Foster v. Goodwyn, 488. Foster v. Hall, 28, 61. Foster v. Haynes, 392, 628. Foster v. Higginbotham, 195. Foster v. Jones, 121, 377. TABLE OF CASES. xliii The references are to pages. Foster v. Mabe, 220. Foster v. Mill Co., 48. Foster v. Milliner, 501. Foster v. Patten, 563. Foster v. Potter, 214. Foster v. Popes, 197. Foster v. Siuger, 263, 372, 366, 653. Foster v. Sweeney, 680, 685, 688. Foster v. Walker, 271. Foster v. White, 653. Foster v. Wootlfin. 114. Foster's Case, 468. Foulks V. Falls, 140. Foulks V. Pegg, 395. Fountain v. Smith, 256, 269. Fourth N. Bank v. ]\Iayer, 623. Fourth School District in Ruinford V. Wood, 814. Fowler v. Doyle, 386. Fowler v. Jenkins, 444. Fowler v. McClelland. 292. Fowler v. Pittsburg, etc., R. R Co., 328. Fowler v. Williamson, 369. Foyles v. Kelso, 253, 254, 443, 445. Fox V. Able, 162. Fox V. Ark., etc., Co., 576. Fox V. Cronan, 506. Fox V. Hoyt, 444. Fox V. Mackenzie. 523. Fox V. Reed, 372. Fox V. Webster, 857. Francis v. Burnett, 23. Francis v. Nash, 199. Frank v. Chaffee, 12, 558, 680, 698. Frank v. Frank, 265, 386^ Frank v. King, 536. Frank v. Seigel, 77. Frank v. Tatura, 226. Franke v. Eby, 430. Frankel v. Stern, 460, 478. Frankenheimer v. Slocum, 69. Franklin v. Claflliu, 109. Franklin v. Gumersell, 224. Franklin Bank v. Bachelder, 468. Franklin Ins. Co. v. West, 12, 272. Frantz v. Han ford, 568, 683. Frazier v. Wilcox, 13. Free v. Hukill, 95. Freeborn v. Glazer, 116, 471. Freeman v. Bank, 281. Freeman v. Creech, 114 Freeman v. Grist, 555. Freeman v. Howe, 285, 663. Freeman v. Miller, 351, 356, 631. Freeman v. Sturges Exchange Bank, 321. Freeman v. Thompson, 252, 253, 377, 445. Freeman v. Watkins, 619. Freer v. White, 117. Frellson v. Green, 11. Fiellson v. Stewart, 16. Fremont, etc., Co. v. Fulton, 81, 89. French v. Chase, 116. French v. De Bow, 397. French v. Duncan, 687. French v. Hoyt, 254, 428. French v. Reel, 665. French v. Sale. 561. French v. Wade, 586. Frere v. Perret, 99. Fretwell v. Laffoon, 364', 654. Fridenberg v. Pierson, 540, 548. Frieberg v. Elliott, 192. Frieberg v. Frieberg, 177, 224, 574 Frieberg v. Sanger, 575. Friedenrich v. Moore, 357. Friedlander v. Mj-ers, 90. Friedlander v. Pollock, 46. Friedman v. Sullivan, 500. Friend v. Garcelon. 507. Frierson v. Branch, 194. Frink v. Potter, 70. Frisk V. Reigelman, 277, 376, 626. Frizzell v. Willard, 376. Frost V. Brisben, 29. Frost V. Cook, 138, 139. Frost V. Jordan. 697. Frost V. Kellogg, 186. Frost V. Shaw, 497. Frost V. White, 492. Frothingham v. Haley, 272. Frounstein v. Rosenham, 403. Fulbright v. Cannefox, 586. J Fullam V, Stearns. 232, 244 xliv TABLE OF CASES. Tlie references are to pages. Fuller V. Arnold, 75. Fuller V. Beck, 461. Fuller V. Bryan, 30, 33. Fuller V. Duren, 72. Fuller V. Foote, 354. Fuller V. Hasbrouk, 10. Fuller V. Holden, 657. Fuller V. Jewett, 199. Fuller V. Langford, 446. Fuller V. Nickerson, 14. Fuller V. O'Brien, 262, 280, 302. Fullerton v. Bank, 437. Fullertou v. Mack, 218. Fulton V. Fultou, 534. Fulton V. Heaton, 1G9. Fulweiler v. Hughes, 273, 308. Funkhouser v. How, 302, 304, 652. Furman v. Walter, 69, 86, 465, 484. 486. Furness v. Read, 68. G. Gaddis v. Lord, 688. Gaffield v. Hapgood, 190. Gage V. Gates, 77. Gage V. Chesebrow, 388. Gaines v. Bierne, 623. Gaines v. Page, 557. Gaither v. Bellevv, 289, 290. Galbraith v. Davis, 580. Gale V. Siefert, 527. Gale V. Ward, 214. Galena & Southern Wisconsin R. R Co. V. Stahl, 200. Gales V. Tusten, 319. Gall V. Hinton, 186, 495. Gallagher v. Cogswell, 134, 476, 477. Gallagher v. Goldfrank, 50. Galle V. Tode, 48. Galloway v. Bird, 242. Galloway v. Holmes, 90, 123. Gallup V. Josselyn, 180. Gallup V. Robinson, 216. Galpin v. Page, 245, 603. Gans V. Beasley, 112, 151. Garcia v. Insurance Co., 382. Gardiner v. Mayor, 592, 595. Gardner v. Donnelly, 515, 519. ' Gardner v. Hust, 585. Gardner v. Lane, 592. Garland v. Sperling, 268, 274. Garner v. Burleson, 104, 105. Garner v. Campbell, 667. Garner v. Van Alstine, 583. Garner v. White, 61, 97. Garnet v. Wimp, 169. Garnett v. Macon, 592, 594 Garreton v. Brown, 191. Gan-etson v. Reeder, 128. Garrett v. Jaffray, 302. Garrett v. Logan, 698. Garrett v. Taylor, 59, 61. Garvin v. Paul, 183. Gary v. Brown, 371. Gary v. May, 253. Gary v. McCown, 233. Gasherie v. Apple, 54, 472, 484. Gasquet v. Collins, 478. Gasquet v. Johnson, 580. Gass v. Williams, 491, 529, 609, 611, Gassett v. Grout, 292. Gassner v. Patterson, 563. Gatchell v. Foster, 368. Gates V. Bennett, 15. Gates V. Bloom, 98. Gates V. Bushnell, 11, 554 Gates V. Flint, 213. Gates V. Gates, 395. Gates V. Kerby, 302, 304 Gates V. Trusten, 303, 351, 354 443, 458. Gathercole v. Bedel, 466. Gause v. Cone, 261. Gay V. Alter, 592. Gay V. Caldwell, 240. Gay V. Eaton, 419, 433, 465. Gay V. Southworth, 501. Gazen v. Royce, 82, 90. Gee V. Alabama, etc., Co., 487. Gee V. Warwick, 292. Geer v. Chapell, 271. Geer v. Putnam, 162. Geiger v. Greiner, 87. Gel poke v. Dubuque, 438. Gelstrop v. Moore, 254. TABLE OF CASES. xlv Tlie refei-ences are to pages. Gemmell v. Rice, GO. Genesee Sav. Bank v. ^Michigan, etc., Co., 485. Genin v. Tompkins, 484, 486. George v. Bassett, 494. George v. Fellows, 494, 513. George v. Ralls Co., 312. Georgia Ice Co. v. Porter, 155. Georgia Ins. Co. v. Oliver, 634. Gerber v. Ackle}', 661. Gerdes v. Sears, 239, 606. Gere v. Gundlach. 160. Germain v. Steam Tug Indiana, 667. German American Bank v. Butler, 377. German Bank v. Dash, 49. German Bank v. Meyer, 42. German Bank v, Peuser. 651. German N. Bank v. National State Bank. 363. Germania Bank t. Peuser, 92, 680. Gerson v. Jamar, 555. Gery v. Ehrgood, 505. Gessner v. Pal mater, 14. Getchell v. Chase, 264, 271, 385. Gayer v. Insurance Co., 214. Gibbon v. Bryan, 360. Gibbons v. Chei'ry, 357. Gibbs v. Chase, 170, 242, 395. Gibbs V. Petree, 447. Gibbs V. Queen Ins. Co., 333, 385. Gibbs V. Shaw, 428, 547. Gibson v. Everett, 432. Gibson V. Jenney, 170, 222, 223. Gibson v. McLaughlin, 41, 48. Gibson v. Park Bank, 201, 238, 321. Gibson v. Roll, 442. Gibson v. Wilson, 227, 525, 561. Giddens v. Boiling, 189. Giddings v. Coleman, 305. Giddings v. Squier, 37, 40. Gies V. Bechtner, 262. Gilbert v. Anthony, 515. Gilbert v. Brown, 237, Gilbert v. Crandall, 395, 899. Gilbert v. Gilbert, 607, 675. Gilbert v. Hollinger, 220, 484. Gilchrist v. West Virginia Oil and Oil Land Co., 587. Gildersleeve v. Caraway, 648. Gile V. Devens, 164. Gile V. Hallock, 496. Giles V. Ash, 299. Giles V. Devens, 296. Giles V. Hicks, 35.5. Gilkerson v. Knight, 81. Gilkerson, etc. v. Bond, 543. Gill V. Downs, 472. Gill V. Wyatt, 40. Gillett V. Needham, 254, 428. Gillette v. Cooper, 263. Gilliland v. Cullem. 247. Gillispie v. Clark, 5, 492, 522. Gillispie v. Commercial Mutual Ma- rine Ins. Co., 255, 421. Gilman v. Oilman, 453. Oilman v. Hill, 222. Gilman v. III. & Miss. Tel. Co., 641. Gilman v. Stetson, 42. Gilman v. Wheelock, 561. Gilniore v. Carnahan, 641. Gilmore v. McNeil, 404. Gil more v. N. Am. Sand Co., 619. Gilmour v. Heinze, 682. Ging Gee v. Ah Jim, 700. Ginsberg v. Pohl, 224. Girard v. Moore, 685. Girard, etc.. Trust Co. v. Chambers, 266. Girard Fire Ins. Co. v. Field, 16, 273. Givens v. Merchants' N. Bank, 31. Gleason v. Briggs, 700. Gleason v. Gage, 388. Glenn v. Eddy, 162. Glenn v. Gill. 289, 290, 305. Glenn Iron Works, In re, 330. Glidden v. Whittier, 522. Globe Milling Co. v. Hansen, 377. Globe Woolen Co. v. Carhart, 193. Goble v. Howard, 74. God be Pitts Drug Co. v. Allen, 50, 485. God bold v. Bass, 292. OcxUlard v. Cunuiugham, 140. Goddard v. Guittar, o65. xlvi T VBLE OF CASES. Tlie references are to pages. Goddarcl v. Hapgood, 307, 646. Godden v. Pierson, 57. Godfrey v. McCoraber, 301, 321. Goebel v. Stevenson, 519. Goetz V. Hanchett, 225. Gold V. Railroad Co., 284, 335. Golden v. Conner, 503. Golden Gate Co. v. Jackson, 73. Goldsmith v. Picard, 687. Goldsmith v. Stetson, 158. Goldsticker v. Stetson, 476. Goll V. Hubbell, 376. Golson V, Powell, 301. Gomilla v. Milliken, 545. Goodbar v. Bailey, 105. Goodbar v. Bank, 557, 688. Goodbar v. City N. Bank, 205. Goodbar v. Lindsley, 201. Goode V. Barr, 297. Goode V. Holcombe, 624. Goode V. Longmire, 220, 224. Goodell V. Fairbrother, 180. Goodenovv v. Snyder, 72. Goodhue v. King, 527, 572. Goodman v. Henley, 301, 453. Goodman v. Moss, 211. Goodman v. Niblack, 251. Goodrich v. Church, 395, 408. Goodwin v. Richardson, 610, 616. Goodyear Rubber Co. v. Knapp, 106, 124, 421. Googins V. Gilmore, 50. Goore v. McDaniel, 10. Gordin v. Moore, 373. Gordon v. Baillie, 16. Gordon v. Coolidge, 364. Gordon v. Gaffey, 75. Gordon v. Haywood, 577. Gordon v. Jenney, 395, 404.' Gordon v. Johnston, 514. Gordon v. McCurdy, 558. Gore V. Clisby, 260. Gore V. Kay, 48, 193, 483. Gore V. Mastin, 169. Gorman v. Swaggerty, 339. Goss V. Boulder Co. Comra'rs, 58. Goss V. Gowing, 106, 107. Gottfried v. Miller, 214. Gouch V. Tolman, 383. Goudy V. Hall. 442, 445, Gould V. Howell, 179. Gould V. Meyers, 361, 629. Gould V. Newburyport R. Co., 259. Goulding v. Hair, 181, 565, 662. Gove V. Farrell, 271. Gover v. Barnes, 483. Gover v. Hancock, 661. Gowan v. Hanson, 358, 376. Govver v. Emery, 174, 221. Gower v. Stephens, 403, 404, 427. Grabenheimer v. Rindskoflf, 540. Grace v. Rittenberry, 16. Grace v. Wade, 576. Grady v. Bramlet, 498. Graham v. Boynton, 622. Graham v. Bradbury, 31. Graham v. Burckhalter, 16, 134, 185, 477. Graham v. Crockett, 49. Graham v. Culver, 499. Graham v. De Lannay, 121. Graham v. Hughes, 129, 130, Graham v. Moore, 271. Graham v. Ruff, 92, 96, 125. Graham v. Spencer, 465. Grab an v. Railroad Co., 639. Graighle v. Notnagel, 221. Grainberg v. Longermau, 78. Grand Gulf R. R. & Banking Co. v. Conger, 30, 139. Granger v. Adams, 563. Grangers' Insurance Co. v. Turner. 34, 57. Granite Bank v. Treat, 443. Grant v. Deuel, 128. Grant v. Lloyd, 592. Grant v. Reinhart, 680, 690. Grant v. Shaw, 199, 268, 272. Graves V. Cole, 113^ 481. Graves v. Cooper, 624. Graves v. Walker, 364. Gray v. Badgett, 372. Gray v. Biscoe, 31. Gray v. Blackwell, 53. Gray v. Del. & Hudson Canal Co., 377, 651. TABLE OF CASES. xlvii The references are to xxiges. Gray v. Griffith, 72. Gray v. M'Lean, 519. ■ Gray v. McNeal. 443. Gray v. Neill, 51. Gray v, Perkins, 514, 670. Gray v. Reveille, 443. Gray v. Steedman, 110, 143. Gray's Adm'r v. Patton's Adm'r, 567. Grayson v. Veeche, 300. Great Western Mining Co. v. Wood- mas, 151. Greaves v. Newport. 700. Grebe v. Jones, 86, 246. Greely v. Reading, 10, 567. Green v. Bank, 334, 453. Green v. Beck with, 25, 37, 30. Green v. Doughtj*, 306. Green v. Farmers' & Citizens' Bank, 283. Green v. Farrar, 496. Green v. Hill, 4, 426, 433. Green v. Kelley, 536. Green v. Neal's Lessee, 438. Grsen v. Nelson, 373. Green v. Pyne, 184. 233. Green v. Robertson, 519. Green v. Vanbuskirk, 501. Green v. Watson, 501, 503. Greene v. Greene, 18, 28. Greene v. Remington, 329. Greene v. Tripp, 98, 341, 360, 628. Greenfield v. Wilson, 661. Greenleaf v. Perrin, 271, 385. Greennian v. Fox, 569, 644. Greentree v. Rosenstock, 372, 451, 653. Greenvault v. F. & M. Bank, 3, 121, 123, 158, 429, 479. Green way v. James, 557. Greenway v. Mead, 122. Green well v. Green well, 41. Greenwood v. Bo3'd, 322. Greer v. Cagle, 422. Greer v. Higgins. 579. Greer v. Powell, 619. Greer v. Rowley, 316, 819, 336. Gregg v. Bank, 320. Gregg V. Nilson, 161. Gregg V. Thompson, 440, 444 Gregory V. Adler, 544. Gregory v. Clark. 346. Gregory v. Filbeck, 181. Gregory v. Higgins, 278. Gregory Grocery Co. v. Young, 565. Greiner v. Prendergast, 75. Grever v. Culver, 364. Grewell v. Henderson, 253. Grey v. Sheridan, etc., Co., 394. Grey v. Young, 470. Gribbon v. Freel, 153, 217, 418. GriefT v. Betterton, 217. Griel v. Loftiu, 339. Gries v. Black man, 57. Griffin v. Helmbold, 289. Griffis v. Swick, 135. Griffith V. Bailey, 499, 504 Griffith y Langsdale, 509. Griifith v. Robinson, 132. Griffith V. Smith, 221. Griffith V. Stock muller, 636. Grigg V. Bank, 544. Grignon's Lessee v. Astor, 443. Grigsley v. Love, 554. Grimes v. Bowerman, 686, 688, 693. Grimes v. Farrington, 488. Grinnell v. Phillips, 661. Grissom v. Reynolds, 649. Grisvvold, In re, 540. Griswold v. Popham, 355. Griswold v. Sharpe, 473. Griswold v. Sundback, 667. Grizzard v. Brown, 459. Groat V. Gillispie, 35, 080. Grocery Co. v. Records, 159. Groome v. Lewis, 289. Gross V. Goldsmith, 158. Grosslight v. Crisup, 643. Grosvenor v. Bank, 199, 301. Grover v. Buck, 91, 396. Grover v. Wakeman, 48. Grow V. Crittenden, 265. Grower v. Fletcher, 496. Grubbs v. Colter, 5, 433. Grubbs v. Ellison, 502. Guaranty Trust Co. v. Green Cove Railroad, 587, 603. Guardians, etc. v. Mintzer, 266. xlviii TABLE OF CASES. Tlie references are to pages. Guay V. Andrews, 519. Guckenheimer v. Libby, 95. Guerin v. Hunt, 158, Guest V. Ramsey, 483. Guild V. Holbrook, 272, 381. Guile V. McNanny, 105. Guilford v. Reeves, 369, 631. Guilford Co. v. Georgia Co., 487. Guise V. O'Daniel, 28. Gulf, etc., R. Co. V. Ft. Worth, etc., R. Co., 470. Gum Hardware Co. v. Denison, 116. Gumbel v, Pitkin, 210, 432, 437. Gumble v. Andriis, 192. Gunn V. Howell, 361, 377, 625, 649. Gunn V. Mason, 254, 444. Gunst V. Pelham, 109, 124. Gunter v. Cobb, 233. Gutlierrin v. Hill, 96. Gutman v. Iron Co., 86, 90. Gutta Percha Co. v. Houston, 73. Gutterson v. Morse, 305. Gutzwiller v. Lackman, 194. Guy V. Lee, 70. Guy V. Pierson, 254. Gypsum Co. v. Circuit Judge, 214. H. Haas V. Shaw, 499, 501. Haber v. Nassetts, 45, 54. Habericht v. Lissak, 639. Habich v. Folger, 280, 464. Hacker v. Stevens, 19, 337. Hackettstown Bank v. Mitchell, 187, 427. Hackley v. Kanitz, 272, 363, 864, 371, 382. Hackley's Ex'r v. Swigert, 590. Hadley v. Bryars, 184, 499, 505. Hadley v. Musselmau, 162. Hadley v. Peabody, 314, 3l6. Haebler v. Bernharth, 62, 476. Haebler v. Myers, 543. Haflfey v. Miller, 263. Hafley v. Patterson, 90, 109. Haflick v. Stober, 190. Hagan v. Burch, 479. Hagan v. Campbell, 693. Hagan v. Lewis, 609. Hagedon v. Bank of Wisconsin, 269. Hagan v. Lucas, 514. Hager v. Adams, 509. Hagerstown Bank v. Weckler, 508. Haggart v. Morgan, 25, 29. Haggerty v, Ward, 53. Haggerty v. Wilber, 217, 218, 330, 334. Hagood V. Hunter, 106. Hahn v. Kelly, 248. Hahn v. Salmon, 191, 397. Hahn v. Seifert, 127. Haight V. Berg, 31. Haiglette v. Leake, 44. Hair v. Lowe, 357. Hakanson v. Brodke, 667. Hakes v. Shupe, 434, 448, 451, 611. Halbe's Estate. 499. Halbut V. McCulloch, 519. Haldeman v. Hillsborough & Cin. R. R. Co., 12. Hale V. Chandler, 89, 121, 123, 543. Hale V. City of New Orleans, 698. Hale V. Cummings, 4. Hale V. Donahue, 95. Hale V. Heaslip, 504. Hale V. Richardson, 32. Halett V. Nugent, 463. Haley v. Railroad Co., 319, 335, 354, 453. Haley v. Reid, 214. Half V. Curtis, 682. Halfpenny v. Bell, 672. Hall V. Brazelton, 114, 115, 471. Hall V. Brooks, 409. Hall V. Brown, 165. Hall V. Filter Manuf. Co., 336. Hall V. Forraan, 683. Hall V. Gould, 577. Hall V. Grogan, 150. Hall V. Hartwell, 500. Hall V. Howd, 443. Hall V. Magee, 258, 271. Hall V. Page. 71, 505. Hall V. Palmer, 461. Hall V. Stevenson, 207, 337, 543. Hall V. Stryker, 119. TABLE OF CASES. xlix The references are to pacies. Hall V, Walbridge, 553. Hall V. Waterbury, 170. Hall V, Williams, 267. Haller v. Pariott, 447. Hallett V. Righters, 248. Halley v. Jackson, 115. Halliday v. Sterling, 689. Hallock V. Belcher, 684. Hallowell v. Leafgreen, 257, 339. Halpin v. Barringer, 259. Halpine v. Hall, 221. Halsey v. Fairbanks, 494. Ham V. Perry, 337, 630. Hamble'v. Owen, 134. Hambrick v. Williams, 60. Hamburg v. Wood, 560. Hamburger v. Carr, 364. 509. Hamer v. First N. Bank, 685. Hamilton v. Bryant, 527. Hamilton v. Buggy Co., 384. Hamilton v. Burum, 442. Hamilton v. Fleming, 502. Hamilton v. Hill, 624. Hamilton v. Johnson, 473. Hamilton v. Knight, 93, 184. Hamilton v. Laniphear, 536. Hamilton v. Penny, 88. Hamilton v. Rogers, 276, 344, 510. Hamilton Shoe Co. v. Adams, 191, 192. Hammett v. Morris, 636, 640. Hammond v. Starr, 461, 518. Hamnill v. Phenicie, 134. Hanaford v. Hawkins. 266, 372. Hanauer v. Casey, 543. Hanchett v. Bank, 187. Hanchett v. Ives, 562. Hanchett v. McQueen, 660. Hancock v. Colyer, 72, 293, 553. Hancock v. Henderson, 205, 232. Hancock Ins. Co. v. Moore, 72. Handy v. Brong, 76. Handy v. Dobbin, 199, 494. Handy v. Insurance Co., 458. Handy v. Pfister, 13. Hanes v. Tiffany, 563. Hankinson v. Page, 209. Hanks v. Andrews, 42, D Haun V. Ruse. 136. Hanna v. Bry, 289. Hanna v. Davis, 607. Hanna v. Guy, 590. Hanna v. Lauring, 377. Hanna v. Loring, 75. Hannah v. Moberly Bank, 329. Hannahs v. Felt, 12, 505. Hanness v. Smith, 700. Hannibal & St. Joe R. R Co. v. Crane, 16. Hanover \. Turner, 28. Hanover Ins. Co. v. Connor, 322, 581. Hanover N. Bank v. Stebbins, 27. Hansen v. Butler, 292. Hansen v. Morris, 77. Hansford v. Perrin, 519. Hanson v. Doherty, 486. Hanson v. Dow, 160, 479. Hanson v. Graham, 27, 30. Hanssler v. Bank, 687. Haralson v. Campbell, 3. Haralson v. Newton, 51, 104, 434. Harbert v. Gormley, 127, 137. Harbmson v. McCartney, 190, 285. Harbough v. Albertson, 128. Hardcastle v. Hickman, 609. Hardeman v. Morgan, 12, 672, 675. Hardesty v, Campbell, 483, Hardie v. Colvin, 42, 81. Hardie v. Lee, 437. Haidin v. Boyd, 66. Hardin v. Lee, 113. Hardin v. Sisson, 394. Harding v. Coburn, 566. Harding v. Larkin, 698. Hardware Co. v. Deere, 540. Hardy v. Colby, 98, 298. Hardy v. Tilton, 190. Hardy v. Tiabue, 106. Hargedine v. Van Horn; 82, 93, 110, 122. Harger v. Spofford, 12, 675. Hargis v. Morse, 117. Hargis v. Railroad Co., 234. Haris v. Trapp, 475. Harkness v. Hyde, 456, 457. Harlow v. Becktle, 251. TABLE OF CASES. TJie references are to pageb. Harman v. Hoskins, 50. Harman v. Tappenden, 692. Harmon v. Birchard, 359, 647. Harmon v. Cattle Co., 487. Harmon v. Moore, 496. Harmon v. Osgood, 257, 293. Harnden v. Gould, 187. Harney v. Ellis, 258. Harney v. Pealer, 615. Harper v. Bell, 492, 521. Harper v. Commercial, etc., Bank, 556. Harper v, Keyes, 136, 676. Harper v. Miller, 240. Harper v. Scuddy, 472. Harper v. Stansbrough, 195. Harrell v. Cattle Co., 291. Harrell v. Mexico, 352. Harrell v. Whitman, 271. Harriman v. Gray, 395. Harrington v. Fortner, 578. Harrington v. La Roche, 292. Harrington v. La Eocque, 298. Harrington v. Loomis, 60. Harrington v. People, 443. Harrington v. Smith, 498. Harris v. Budd, 34. Harris v. Capell, 48, 54. Harris v. Dauglierty, 13, 248. Harris v. Finberg, 681. Harris v. Gwin, 5. Harris v. Grodner, 246, 252. Harris v. Hanson, 3, 170, 225, 431, 432, 434, 443, 446, 448, 449, 459. Harris v. Hardeman, 426. Harris v. Lester, 110. Harris v; Linnard, 482. Harris v. Meyer, 50. Harris v. Miller, 338. 339. Harris v. Peabody, 305. Harris v. Phoenix Ins. Co., 307. Harris v. Russell, 193, 239. Harris v. Somerset & Ken. R. R Co., 319. Harris v. Tenney, 13. Harrison v. King, 61, 472. Harrison v. Mock, 194. Harrison v, Pender, 540. Harrison v. Eenfro, 622. Harrison v. Thurston, 614. Harrison v. Trader, 10, 543. Harrison Works v. Hosig, 466. Harrow v. Lyon, 614, 621. Hart V. Anthony, 282. Hart V. Barnes, 62, 87. Hart V. Chalker, 563. Hart V. Dahlgreen, 364. Hart V. Jones, 83. Hart V. Kanady, 477. Hart V. Sansom, 422, 436. Hart V. Seymour, 220, 581. Hart V. Smith, 461. Hart V, Svvayne, 592, 593. Hartford v. Jackson, 188. Hartford Quarry Co. v. Pendleton, 528. Hartle v. Long, -292. Hartley v. Tepley, 303. Hartman v. 01 vera, 259, 274, 640. Harvard College v. Gore, 28, 29. Harvey v. Great Northern R. Co., 283. Hassall v. Wilcox, 603. Haseltine v. Ausherman, 482. Haselton v. Monroe, 643. Haskell v. Andrews, 511. Haskell v. Bartlett, 252. Haskell v. Haskell, 265, 293. Hassie v. Congregation, 77. Hastie v. Kelly, 494. Has well v. Parsons, 498. Hatch v. Bailey, 188. Hatch V. Fowler, 396. Hatch V. Lincoln, 188. Hatchett v. Blanton, 193. Hathaway v, Davis, 71, 487. Hathaway v. Larrabee, 206, 233, 241. Hathaway v. Russell, 373. Haussnecht v. Claypool, 438. Haust V. Burgess, 259, 264. Havely v. Lowry, 394. Haven v. Low, 188, 268. Haven v. Snow, 240. Haven v. Wentworth, 271, 385. Havens v. Gard, 598. Havis V. Taylor, 32, 41. I Havves v. Clement, 90, 548. TxlBLE OF CASES. li Tlie references are to pages. Hawes v. Waltliani, 276, 277. Hawkins v. Ga. Bank, 634 Hawkins v. Graham, 637. Hawkins v. Hewitt, 209. Havvley v. Atlierton. 277. Hawley v. County of Litchfield, 312, Hawley v. Dehnas, 104, 105. Hawley v. Mead, 254. Hawthorn v. St. Louis, 316. Hawthorn v. Unthank, 625. Hawthorne v. Smith, 504. Hayden v. McMillan, 261. Hayden v. Nat Bank of N. Y., 275, 353. Hayden v. Sample, 680, 688, 695, 697. Haydon v. Bank of Wisconsin, 289, Hayer v. Alexander, 195. Hayes v. Gillispie, 235. Hayes v. Josephi, 531. Haygood v. Huntei', 106. Hayman v. Hallam, 659. Haynes, Ex parte, 92. 97, 119, 121. Haynes v. Cowen. 117. Haynes v. Gates, 645. Haynes v. Jones, 397. Haynes v. Knowles, 183, 239, 507. Haynes v. Morgan, 399. Haynes v. Powell, 34. Haynes v. Small, 232, 656. Haynes v. Thompson, 556. Hays V. Anderson, 374. Hays V. Lycoming Fire Ins. Co., 336. Hayward v. George, 181, 662. Haywood v. Collins, 15, 254, 432, 437, 442. 443, 445. Haywood v. Cuoningham, 14. Haywood v. Hardie, 413. Haywood v. McCrory, 253, 254, 433, 445, 446. Haywood v. Russell, 252. Hazard v. Franklin, 263. Hazelrigg v. Donaldson, 491, 492, 521. Hazlitt V. Morrow, 462. Hazzard v. Agricultural Bank, 24 H. B. Claflin Co. v. Feibleman, 536. Head v. Daniels, 117, 129, 234 Head v. Merrill, 318, 320, 463. Heagle v. Wheeland, 667. Healey v. Butler, 258, 376, 640. Hearn v. Adamson. 356. Hearn v. Crutcher, 265, 288, 856. Hearn v. Foster, 300. Hearne v. Keith, 73, 272. Heath v. Keyes, 170. Heath v. Lent, 680, 684 Heaverin v. Robinson, 536. Hebel v. Amazon Ins. Co., 316, 351, 453. Hecht V. Green, 305. Hecksher v. Trotter, 71. Heege v. Fruin, 258, 263. Hefferman v. Grymes, 377. Heflfner v. Gunz, 456, 459. Heffner v. Lewis, 190. Heibner v. Chave, 317. Heideman, etc. v. Urner, 42. Heidenback v. Schland, 26. Heidenheimer v. Johnston, 541. Heidenheimer v. Sides, 690. Heimoth v. Le Suer, 635. Heimstedt v. German Bank, 257. Heineman v. Schloss, 77. Heller v. Stremmel, 314 Hell man v. Fowler, 97, 695. Helm V. Gray, 560. Helme v. Pollard, 381. Helmer v. Rehm, 621. Hemenway v. Wood, 499. Heminway v. Saxton, 219. Hemmenway v. Pratt, 271. He.mmenway v. Wheeler, 213, 395, 427. Hemming v. Zimmerchitte, 382. Hemshein v. Levy, 433. Hencke v. Johnson, 672. Henderson v. Alabama Gold Ins. Co., 77, 300. Henderson v. Bliss, 539. Henderson v. Cashman, 276. Henderson v. Drace, 148,477,481,483. Henderson v. Drake, 113. Henderson v. Graham, 154. Henderson v. Hamer, 5. Henderson v. Henderson, 31. Henderson v. Insurance Co., 339. Henderson v. Mahill, 383. lii TABLE OF CASES. The references are to pages. Heudcrson v. Overton, 595. Henderson v. Schaas, 195. Henderson v. Stetter, 64, 548. Henderson v. Thornton, 469. Henderson v. Travis, 484. Hendrick v. Cleveland, 442. Hendrix v. Cawthorn, 5. Hennen v. Forget, 379. Hennessey v. Farrell, 262. Henny v. Patt, 377. Henrie v. Sweazy, 91, 424, 433. Henry v. Bew, 262, 365, 369. Henry v. Cawthorn, 182. Henry v. Gold Park Mining Co., 521, 526. Henry v. Gregory, 468. Henry v. McClure, 469. Henry v. Mitchell, 206, 207, 233. Henry v. Murphy, 257. Henry v. Quackenbush, 188, 220, 224. Henry v. Sweazy, 426. Henry v. Wilson, 271. Heusley v. Rose, 686. Hepp V. Glovei-, 496. Herbert v. Hanrick, 7. Herbert v. Herbert, 25. Herbert's Heirs v. Babin, 534. Her don v. Forney, 678. Hereth v. Yandes, 501. Hergman v. Dettlebach, 202. Hermann v. Amedee, 465, 486, 487. Herndon v. Givens, 336. Herndon v. Pickard, 208. Hernsheim v. Levy, 47, 485. Herring v. Hoppock, 178, 220. Hershfield v. Claflin, 182, 573, 618. Hershfield v. Lowenthal, 44, 50. Hershy v. Clarksville Institute, 555. Hervey v. Champion, 10, 544. Herzberg v. Warfield, 580. Hess V. Bower, 98. Hess V. Sliorb, 292. Hewes v. Cooper, 515. Hewes v. Parkman, 224, 505. Hewitt V. Durant, 209, 619. Hewitt V. Wagar Lumber Co., 320, 363, 368, 384. Hewitt V. Wheeler, 267. Hewson v. Tootle, 559. Heye v. Moody, 213, 544. Heyn v. Farrar, 471. Hey ward v. Manufacturing Co., 338, 374. Hexter v. Clifford, 639. Hiatt V. Bulleue, 579. Hicks V. Chapman. 293. Hibbard v. Clark, 313, 372. Hibbard v. Everett, 368. Hibbard v. Zenor, 210, 563. Hibbs V. Blair, 144. Hichins v. Lyon, 606. Hickey's Lessee v. Stuart, 450. Hickman v. Cruise, 495. Hickman v. Flenoriken, 105. Hickok V. Buell, 562. Hicks V. Gleason, 337. Hickson v. Brown, 24, Higdon V. Vaughan, 519. Higgins V. Grace, 613, 614, 621. Higgins V. McConnell, 208. Higgins V. Mansfield, 684. Higgins V. Whitney, 170. Higgins Carpet Co. v. Hamilton, 181. High V. Bank, 639. High V. Wilson, 170. Hightower v. Slaton, 314. Hilbourn v. Woodworth, 437. Hildreth v. Fitts, 222. Hill V. Baker, 6. Hill V. Beach, 182, 288. Hill V. Bell, 483. Hill V. Bond, 97, 119, 472. Hill V. Child, 555. Hill V. Culan, 487. Hill V. Cunningham, 473. Hill V. Faison, 253. Hill V. Figley, 49. Hill V. Harding, 5, 521, 5 1, 527. Hill V. Hunnewell, 114, 530. Hill V. Kroft, 279. Hill V. La Crosse & M. R. Ry. Co., 287, 312. Hill V. Loomis, 511. Hill V. Merle, 527. Hill V. Moore, 122. Hill V. Pride, 443. TABLE OF CASES. liii The references are to pages. Hill V. Rushing, 144. Hill V. Scales, 515. Hill V. Whitney, 75. 484. Hill V. Wiggins, 184. Hillard v. Wilson, 217, 2'i2. Hiller v. Lamkin, 4?.!, 603. Hills V. Moore, 5. 103J13, 147, 487, 521. Hillyer v. Biglow, 462, 48-3. Hilton V. Ross, 86, 93, 433, 514. Himstedt v. German Bank, 266. Hinckley v. Bridgham. 404. Hinckley v, Williams. 264. Hinds V. Fagebank, 44, 107. Hinds V. Keith, 577. Hinds V. Miller, 348, 623. Hine v. Dodd, 577. Hines v. Chambers. 16, 169, 170, 434. Hines v. Kimball, 82, 558. Hinkle v. Currin, 388. Hinman v. Opera Co., 182. Hinman v. Ruslimore, 446^ Hinsdill v. Saflford, 378. Hinzie v. Moody, 89. Hirsch v. Hutchinson, 54. Hirsh V. Thurber, 59, 160. Hirtli V. Pfeifle, 276, 639. Hisler v. Carr, 476. Hitchcock V. Aicken, 451. Hitchcock V. Egerton, 199. Hitchcock V. Galveston Wharf Co., 330. Hitchcock V. Giddings, 592, 595. Hitchcock V. Hahn, 243. Hitchcock V. Holmes, 220. Hitchcock V. Langto, 388. Hitchcock V. Miller, 263. Hitchcock V. Watson, 625. Hite 7, Fisher, 353. Hitne: v. Boutilier. 98. Hitsman v. Garrard, 82, 110. Hoag V. Hoag, 260 294. Hoag V. Howard, 578, 617. Hoagland v, Wilson, 150. Hoar V. Marshall, 292, 293. Hobart v. Jouvett, 268. Hobbs V. Carr, 197. Hobson V. Emporium Real Estate & Manuf. Co., 4, 424, 426, 433, 606. Hobson V. Hall, 514 Hobson V. Hill, 350, 373. Hobson V. Stevenson, 302. Hochstadler v. Sam, 71, 89. Hockaday v. Sallee, 203. Hodge V. Norton, 529. Hodgeman v. Barker, 90, 235, 468, 541. Hodges V. Baneham. 7. Hodges V, Graham, 342. Hodo V. Benecke, 15. Hodson V. McConnell, 298. Hodson V. Tootle, 486. Hodson V. Van Fossen, 468. Hoffman v. Fitzwilliam, 350. Hoflfman v. Hill, 503. Hoffman v. Imes, 617. Hoffman v. Simon, 623. Hoffman v. Wetherel, 269, 270, 288, 291. Hoffner v. Gunz, 434. Hoge V. Norton, 491. Hoggett V, Emerson, 30. Hoghtaling v. Osborn, 162. Hoisington v. Huff, 504, Holbrook V. Baker, 505. Holbrook v. Peters, 49. Holbrook v. Waters, 292. Holcomb v. Foxworth, 678. Holcomb V. Lumber Co., 404. Holcomb v. Winchester, 75, 393. Holden v. Garrett, 578. Holek v. Insurance Co., 341, 359. Holland v. Adair, 377, 437. Holland v. Anderson, 58. Holland v. Bank, 488. Holland v. Drake, 573. Holland v. Railroad, 325, 513. Holland v. Smit, 651, 653. Holland v. Smith, 278. Holland v. White, 488. Holliday v. Cohen, 46, 603. Holliday v. Mansker, 27, 613. Holliday v. Ward, 7. Holliman v. Carroll, 661. Hollingshead, In re, 88. Hollingsworth v. Atkins, 681. Hollingsworth v. Barbour, 249, 250, 428. liv TABLE OF CASES. The references are to pages. Hollingsworth v. Fitzgerald, 644 Hollister v. Goodall, 220. Holloway v. Herryford, 473. Holly V. Huggeford, 195. Holman v. Fisher, 292, 549. Holman v. Kerr, 60. Holmes v. Barclay, 75. Holmes v. Cooper, 613. Holmes v. Newcaster, 288. Holmes v. Remson, 195, 645. Holmes v. Russell, 153. Holmes v. Weaver, 698. Holmes Organ Co. v. Petitt, 77. Holsten Man. Co. v. Lea, 90, 103. Holt V. Babcock, 302. Holt V. Burbank, 396. Holt V. Dollarhide, 274. Holt V. Libby, 299, 384. Holt V. Moore, 575. Holtby V. Hodgson, 275. Hoi ton V. Southern Pac. R. Co., 365. Holyoke v. Adams, 527. Holzman v. Martinez, 160. Homan v. Brinkerhoff, 137, 476, 490, 529. Home V. Ould, 279. Home Mutual Ins. Co. v. Gamble, 649. Home Protection v. Richardson, 336. Homer v. Falconer, 92. Hone V. Henrique, 194. Hong Kong, etc. v. Campbell, 362. Hooper v. Hills, 304. Hoot V. Spade, 698. Hooton V. Gamage, 644. Hope V. Blair, 549, 577. Hopewell Mills v. Bank, 189. Hopkins v. Dinan, 274. Hopkins v. Hastings, 50. Hopkins v. Nichols, 104, 105, 106, 107. Hopkins v. Ray, 231. Hopkirk v. Bridges, 16, 45, 422, 434. Hopper V. Fisher, 253. Hopson V. Dinan, 263. Horn V. Bayard, 681. Horn V. Booth, 297. Horn V. Cole, 498. Home V. Mitchell, 132. Home V. Stevens, 303. Horner v. Harrison, 681. Hornick Drug Co. v. Lane, 483. Horton v. Beckman, 155. Horton v. Buffiugton, 580. Horton v. Grant, 265. Horton v. Hubbjird, 659. Horton v. Miller, 117, 473, 475. Horton v. Monroe, 228, 233, 236, 237,. 245. Horton v. Williams, 50. Hosea v. McClure, 48, 193, 469. Hoshaw V. Gullett, 519. Hoskins v. Johnson, 276. Hoskins v. Wliite, 65, 139, 683. Hosmer v. Wallace, 496. Hotchkiss v. McVicker, 395. Houghton V. Ault, 25. Houghton V. Davenport, 188, 496. Houghton V. Lee, 322. House V. Bait, etc., R. Co., 506, 50& House V. Hamilton, 39. Houseman v. Cargo of the Schooner North Carolina. 525. Housemans v. Heilbron, 623. Houston V. Belcher, 137. Houston V. Porter, 376, 423. Houston V. Wolcott, 377, 648. Houston V. Woolley, 483. How V. Field, 260, 361. Howard v. Card, 268. Howard v. Clark, 554, 656. Howard v. Crawford, 388. Howard v. Daniels, 143, 206, 231. Howard v. Farr, 501. Howard v, Mauderfield, 139, 142. Howard v. McLaughlin, 648, 653. Howard v. North, 592. Howard v. Oppenheimer, 106, 478, Howard v. Whittemore, 395. Howard v. Williams, 170, 223, 333. Howard Ass'n v. Reading R. Co., 503. Howard Iron Co. v. Tillman, 331. Howe V. Starkweather, 214. Howe V. Stevenson. 420. Howe V. Tefft. 171, 643. Howell v. Judge, 96. Howell V. Kingsbury, 97, 100. TABLE OF CASES. Iv The references are to pages. Howell V. Muskegon Ct. Judge, 154. Hovver v. Falconer, 14 Ho%ver v. Ulrich, 640. Howes V. Spicer, 217, 656. Howes V. Waltham, 553. Howeth V. Mills, 683. Howitt V. Blodgett, 195. Howland v. Jenal, 351. Howland v, Knox, 580. Howland v. Spencer, 109, 281. Hoxie V. Carr, 305. Hoy V. Eaton, 239. Hoyt V. Christie, 292. Hoyt V. Robinson, 277, 552. Hoyt V. Russell, 577. Hoyt V. Swift, 371, 385. Hozeman v. Rose, 121. Hubbard v, Allen. 73. Hubbard v. President, etc., 572. Hubbard v. Savage, 563. Hubbardston, etc., Co. v. Covert, 84. Hubbell V. Kingman, 617, 633. Hubbell V. Rhinesmith. 245. Huber v. Abbott, 3. Hubert v. Bronson, 303. Hucherson v. Ross, 476. Hudgens v. Hudgens, 593. Hudkins v. Haskins. 98. Hudson V. Hunt, 277. Huff V. Hutchinson, 491, Huffman v. Hardeman, 109. Huffman v. Templeton, 299. Hugg V. Booth, 271. Hughes V. Bank, 639. Hughes V. Brooks, 680. Hughes V. Hatchett, 406. Hughes V. Kelly, 180. Hughes V. Lapice, 240. Hughes V. ]\Iartin, 108, Hughes V. :Mont,v, 649, Hughes V, Sprague, 300. Hughes V. Stinnett, 108, 476. Hughes V. Tenuison, 217, 524 Hull V, Blake. 645. Hulley V. Chedic, 6, Huls V, Buntin, 445, Hume V, Conduitt, 648. Humes v. Scruggs, 43. Humphrey v. Matthews, 74 Humphrey v. Warren. 3G0. Humphrey v. Wood, 15. Humphreys v. Pratt, 174 Hunt V. Coon, 384 Hunt V, Ely, 278, Hunt V. Gilraore, 672. Hunt V. Hapgood, 443. Hunt V. Hunt, 27, 187, Hunt V. Johnson, 422, 431, 434 Hunt V. Xorris, 4. Hunt V. Stevens, 285, 289. Hunt V. Strew, 98. Hunt V, Wickliffe, 251, 252. Hunter v. Brown, 519, Hunter v. Case, 261. Hunter v. Ferguson, 43. Hunter v. Ladd, 132. Hunter v, Martin, 617, Hunter v. Peaks, 109, 401. Hunter v, Soward, 52, Hunter v. Turnpike Co., 165, Huntington v, Blaisdell, 213, 895. Huntington v, Risden, 243, 265. Huntley v. Stone, 259. 289. Huntress v, Burbank, 632. Huot V. Ely, 258, 328, 392. Hurd V, Barnhart, 685, Hurd V, McClellan, 71. Hurd, Matter of, 31. Hurlburt v. Hicks, 287, 288, Hurlbut V, Hardenbrook, 222, 690, 691, Hurlock V, Reinhardt, 657. Hurn, Ex parte, 296, Hurst V. Fire Ins. Co., 273, 321. Hurst V. Hurst, 617. Hurt V. Halm, 62. Hurt V. Redd, 10, 563. Hurtgen v, Kantrowitz, 73. Huseman v. Sims, 498, Hussey v. Thornton, 580. Huswell V, Parsons, 499, Hutcheson v, Powell, 400, 499, 612. Hutcheson v, Ross, 129, Hutchins v. Brown, 240, Hutchins v. Evans, 278. Hutchins v. Hawley, 271, 384 Ivi TABLE OF CASES. The references are to x>ages. Hutchins v, Sprague, 304. Hutchinson's Appeal, 364. Hutchinson v. Bidwell, 189. Hutchinson v. Eddy, 646. Hutchin^n v. Lamb, 75. Hutton V. Wetherald, 76. Huxley v. Harrold, 443, 564, 607. Hyde v. Adams, 83, 110. Hyde v. Nelson, 484, Hynds v. Wynn, 497. Hynson v. Taylor, 75. I. Ide V. Fassett, 394. Ide V. Harwood, 201. j Idler V. Hasche, 649. Iliflf V. Arnot, 391, 510. Illinois Central, etc. t. Brooks, 356. Illinois Central R. Co. v. Cobb, 324. Illinois Central R. Co. v. Smith, 325. Illinois Central R. Co. v. Weaver, 652. Illinois Glass Co. v. Holman, 494, 495. Ilsley V. Nichols, 218. Imperial Roller Milling Co. v. First N. Bank, 685. Indianapolis Bank v. Armstrong, 281. Indianapolis & St. Louis R. Co. v. Horst, 440. Ingalls V. Dennett, 373. Ingalls V. Herrick, 197. Inge V. Cain, 501. Ingersoll v. Kirby, 347. Ingersoll v. Mongam. 592, 594 Ingle V. McCurry, 254. Inglehart v. Moore, 279. Ingraham v. Geyer, 195. Ingraham v. Phillips, 468. Inhabitants of Turner v. Inhabitants of Buckfleld, 28. Inman v. Allport, 86, 119, 441. Inman v. Stratton, 491, 521. Inslee v. Lane, 88, 196. Insurance Co. v. Andrews, 71. Insurance Co. v. Friedman, 319, 344, 364. Insurance Co. v. Hallock, 165. Insurance Co. v. Hirsh, 365. Insurance Co. v. Swineford, 458. Insurance Co. v. Wager, 3. Insurance Co. of Pennsylvania v. Phoenix Ins. Co., 298. International Bank v. Monteath, 76. Iosco Savings Bank v. Barnes, 494. Ireland v. Webber, 613. Iron Cliffs Co. v. Lahais, 356, 360, 376. Iron Co. V. Black, 189. Irvin V. Howard, 5, 86, 87, 106, 111, 148, 471, 477, 522. Irving v. Edringtou, 83. Irwin V. Bank, 113. Irwin V. Evans, 81, 113, 483. Irwin V. McKechnie, 641, 649. Irwin V. Taylor, 501. Isabelle v. Iron CliflFs Co., 650. Isham V. Ketchum, 540. Ivens V. Ivens, 375. Ives V. Bartholomew, 691, Ives V. Curtis, 39. Ives V. Vanscovoc, 372. Ivy V. Caston, 93. J. Jackman v. Anderson, 613. Jacks V. Bigham, 499. Jackson v. Bain, 485. Jackson v. Babcock, 446. Jackson v. Bank of the United States, 3,26. Jackson v. Brown, 165, Jackson v. Burgott, 577. Jackson v. Burke, 124. Jackson v. Chamberlain, 578, 616. Jackson v. Cornell, 55. Jackson v. Esty, 442. Jackson v. Given, 577, Jackson v, Henry, 577. Jackson v, Johnson, 5. Jackson v. Lahee, 290. Jackson v. Perry, 25, Jackson v. Post, 578. Jackson v. St. Louis, etc., R. Co., 635. Jackson v. Sharp, 577. Jackson v, Shepard, 85. TABLE OF CASES. Ivii TJie references are to pages. Jackson v. Shipman, 80. Jackson v. Smith, 127. Jackson v. Sprague, 251. Jackson v. Stanley, 139, 147, 148, 477. Jackson v. Terry, 577. Jackson v. Van Dal f sen, 577. Jackson v. Walsh, 577. Jackson v. Walsvvorth, 31. Jackson v. Warwick. 134, 135, 477. Jackson v. Willard, 199. Jackson's Appeal, 605. Jackson's Ex'rs v. Lloyd, 633. Jacob V. United States, 105. Jacobs V. Crura, 692. Jacobs V. Dougherty, 523. Jacobs V. Hogan, 82, 139, 540. Jacobus V. Bank, 214, 684. Jacoby v. Gogell, 70, 75, 89. Jaeger v. Stelting, 517. Jaflfray v. Claflin, 606. Jaffray v. Jennings, 85. Jaff ray v. TMcGehee, 303. Jaflfray v. Nast, 42. Jaflfray v. Purtell, 613. Jaflfray v. Wolfe, 5. 103. Jaflfray's Appeal, 337. Jager v. Stalting, 609. James v. Dowell, 96, 482. James v. Fell owes, 69. James v. Hall, 32. James v. Richardson, 81. James v. Stratton, 618. Jamison v. Weaver, 673. Janney v. Buell, 77. Jansen v. Mundt, 109. Jaquett v. Palmer, 288. Jardain v. Association, 507. Jarvis v. Barrett, 421, 470. Jasper County v. Chenault, 47, 147, 148. Jaycox V. Chapman, 137, 492. Jefferson Bank v. Eboru. 619, 686. Jefferson County v. Swain, 184. Jefferson Co. Sav. Bank v. McDer- mot, 547. Jeffreys v. Coleman, 142. Jeffries v. Harvie, 228. Jeffries v. Rudloff, 240, 244. Jemel v. Howe, 40. Jenkins v. Lemonds, 061. Jenkins v. Lester, 284. Jenks V. Ludden, 510. Jenks V. Osceola Township,»313, 314, 316. Jenners v. Doe, 55. Jenness v. Wendell, 197. Jenney v. Delesdernier, 395. Jennings v. Joiner, 139, 678, 682. Jennings v. Summers, 262. Jepson V. International Alliance, 328. Jeter v. Hewitt, 438. Jewel V. Howe, 105, 475. Jewell V. Mills, 661. Jewell V. Simpson, 564. Jewett V. Bacon, 277. Jewett V. Guyer, 503. Johann v. Rufener, 627, 649. Johns V. Church, 222. Johns V. Field, 372. Johnson v. Adams, 194. Johnson v. Bell, 565. Johnson v. Blanks, 637. Johnson v. Buckel, 90, 100, 106. Johnson v. Buell, 456. Johnson v. Carry, 649. Johnson v. Central Bank, 10. Johnson v. Clark, 579. Johnson v. Day, 101, 162. Johnson v. Delbridge, 635. Johnson v. De Witt, 466, 469, 471. Johnson v. Dexter. 203, 304, 314, 638. Johnson v. Dodge, 611. Johnson v. Edson, 11. 395, 614. Johnson v. Evans, 619. Johnson v. Farmers' Bank, 680. Johnson v. Foran, 616. Johnson v. Gage, 377, 437. Johnson v. Geneva Pub. Co., 373. Johnson v. Gilkerson, 81. Johnson v. Gorham, 337. Johnson v. GriflSth, 550. Johnson v. Hale, 107. Johnson v. Hannah, 16, 83, 111, 253, 434. Johnson v. Hannan, 121. Johnson v. Heidenheimer, 74, 541, 573. Iviii TABLE OF CASES. The references are to pages. Johnson v. Hersey, 321. Johnson v. Holley, 607. Johnson v. Howard, 373. Johnson v. Hunt, 195. Johnson v. Huntington, 582. Johnson v. Johnson, 80, 82, 426, 438, 442, 446, 547. Johnson v. Layton, 253, 445. Johnson v. LaughHn, 44. Johnson v. Lowry, 89. Jolinson V. McAUister's Assignee, 55. Johnson v. McCutchings, 347. Johnson v. Mason. 266, 288. Johnson v. Moss, 228, 280. Johnson v. Sharp, 571. Johnson v. Short, 74. Johnson v. Smith, 109. Johnson v. Steele, 488. Johnson v. Thweatt, 55. Johnson v. Weatherwax, 523. Johnson v. WilUams, 615. Johnson, etc. v. Railroad, 667. Johnston v. Fellerman, 585. Johnston v. Ferris, 42, 87. Johnston v. Field, 52. Johnston v. Oliver, 519. Johnston v. Riddle, 325. Joice V. Poydras De La Lande, 534. Joiner v. Perkins, 90. Jolland V. Stainbridge, 577. Jones V. Allen, 576. Jones V. Anderson, 137, 138, 477. Jones V. Andrews, 465. Jones V. Bank, 633. Jones V. Bank of Northern Liberties, 270. Jones V. Bivin, 488. Jones V. Blake, 64. Jones V. Byrd, 447. Jones V. Comings, 454. Jones V. Crews, 256, 259, 260, 263, 271, 273. Jones V. Doles, 695, 696. Jones V. Etna Ins. Co., 259. Jones V. Fruin, 690. Jones V. Gorham, 289. Jones V. Gregg, 72. Jones V. Gresham, 3. Jones T. Hart, 607, 60a Jones V. Hoar, 72. Jones V. Holland, 75. Jones V. Howell, 381. Jones V. Hunter, 5. Jones V. Huntington, 339. Jones V. Jones, 191, 285, 445, 514, 609. Jones V. Lake, 170. Jones V. Lamon, 691. Jones V. Langhorne, 257, 275, 367, 38a Jones V. Leake, 99. Jones V. Loree, 48. Jones V. Miller, 582. Jones V. N. Y. & Erie R. Co., 333, 339. Jones V. Norris, 199. Jones V. Peasley, 520. Jones V. Peck, 106. Jones V. Pope, 121. Jones V. Reed, 443. Jones V. Rider, 280. Jones V. Roberts, 888. Jones V. Simpson, 306, 659. Jones V. Swank, 485. Jones V. Tilton, 194. Jones V. Tracy, 388, 506. Jones V. Warwick, 249. Jones V. Winchester, 283, 335. Jones V. Witter, 653. Jones V. Wood, 643. Jordan v. Dewey, 486. Jordan v. Frank, 90. Jordan v. Gallup, 394. Jordan v. Harmon, 305. Jordan v. Hazard, 472. Jordan v. Jordan, 272, 649. Joseph V. Cawthorn, 227. Joseph V. Davis. 329. Joseph V. Kronenberger, 257. Joseph V. People's Bank, 257. Joseph V. Stein, 90. Joseph! V. Clothing Co., 116, 486. Joslln V. Spangler, 514, 520. Joy V. Barnhartt, 689. Judah V. Duncan, 477. Judah V. Judd, 302. Judah V. Stephenson, 422, 434. Judd V. Fox, 667. TABLE OF CASES. llX The references are to images. Judson V. Lake, 7. Judson V. Lewis. 224 Juilliard v. May, 539. Junction R Co. v. Cleneay, 301, 654. K. Kahle v. Muller, 90, 471. Kahn v. Angus, 421. Kahn v. Herman, 1U9, 678. Kahn v. Kuhn, 90. Kalin V. Sippili, 450. Kahoon v. Krumpus, 503. Kane v. Clough, 368. Kane v. McCown, 249, 377. Kanouse v. Doimedy, 529. Kansas City, St. Joe & C. B. E. R Co. V. Campbell, 441. Kansas City, etc., R Co. v. Gough, 511. Kanunck v. Castleman, 224 Kapp V. Teel, 279. Karnes v. Pritchard, 384. Karp V. Citizens' Bank, 321. Katz V. Sorsby, 272. Kauflfman v. Armstrong, 47, 684, 687. Kauff man v. Babcock, 691. Kauffman v. Jacobs, 281, 368. Kavanagh v. Beckwith, 50. Kean v. Doerner, 374. Kearney v. McCullougb, 471. Keai'ney v. Nixon, 361. Keating v. Refrigerator Co., 453, 510, 637. Keating v. Spink, 250, 428. Keel V. Ogden, 364 Keeler v, Keeler, 246, 458. Keeler v. Wood, 698. Keene v. Sallenbach, 51. Keepfer v. Force, 580. Keer v. Reece, 676. Kegel V. Schrenkheisen, 103, 105, 107. Keigher v. McCormick, 119. Keith V. Armstrong, 42, 49, 53, 55, 193, 195, 482. Keith V. Levi, 340. Keith V, Losier, 536. Keith V. McDonald, 94 Keith V. Stetter, 92, 434 Keithley v. Pitman, 274, 800. Kellar v. Carr, 27, 29, 36. Kelley v. Sitlington, 520. Kelley v. Stanley, 150. Kelley v. Strayer, 69. Kelley v. Weymouth, 383. Kellogg V. Carrico, 250. Kellogg V. Freeman, 377, 623, 642, 645. Kellogg V. Kimball, 68. Kellogg V. Miller, 476. Kelly V. Archer. 129, 476. Kelly V. Babcock, 259. Kelly V. Beauchamp, 695, Kelly V. Bowman, 364 Kell}^ V. Crapo. 195. Kelly V. Deming, 195. Kelly V. Dexter, 400. Kelly V. Dill, 499, 501, 504 Kelly V. Donnelly, 90. Kelly T. Gibbs, 644 Kelly V. Gil man, 242. Kelly V. McMinniraan, 294 Kelly V. Roberts, 259, 300. Kelly V. Whiting, 560. Kelsey v. Kendall, 567. Kelso V. Blackburn, 85. Kemp V. Cook, 305. Kemp V. Kennedy, 442. Kemp V. Porter, 406. Kempe's Lessee v. Kennedy, 441. Kempner v. Rosenthal, 179. Kendall v. Brown, 472, 487, 490, 492, 523. Kendall v. Hack worth, 183. Kendall v. Irvine, 237. Kendall v. Morse, 394 395. Kendall Shoe Co. v, August, 485, 558. Kendrick's Heirs v. Kendrick, 239. Keneiick v. Canfield, 130. Keniston v. Stevens, 233. Kennedy v. Aldridge, 291. Kennedy v. Baillie, 27, 55, 385. Kennedy v. Brent, 12, 216. 337. Kennedy v, California Bank, 74 Kennedy v. Dillon, 123. Ix TABLE OF CASES. The references are to pages. Kennedy v. H. L. & S. Society, 319, 336. Kennedy v. Meacham, 684, 687, 691. Kennedy v. McKee, 193. Kennedy v. McLellan, 276, 823. Kennedy v. Merriam, 165. Kennedy v. Morrison, 108, 491, 492, 522. Kennedy v. Pike, 233. Kennedy v. Raguet, 622. Kennedy v. Tiernay, 650. Kenney v. Georgen, 3, 86. Kennon v. Evans. 92, 125. Kennon v. Ficklin, 544, 554. Kenny v. Wallace, 485. Kenosha Stove Co. v. Shedd, 280, 624, 638. Kenrick v. HufT, 607. Kensley v. Morgan, 622. Keppel V. Moore, 352. Kerbs v. Provine, 684. Kergin v. Dawson, 268. Kern v. Chicago Ass'n, 630. Kern v. Wilson, 232. Kern v. Wyatt, 182, 251. Kerr v. Hitt, 250. Kerr v. Mount, 69. Kerr v. Smith, 121. Kesler v. St. John, 306. Kessey v. McHenry, 562. Kesller v. Kern, 498, 509, 511. Ketchen v. Landecker, 83, 91, 99. Ketchum v. Ketchum, 77, 466. Ketchum v. Vidvard, 45. Kettle V. Harvey, 271, Keuhn v. Paroui, 474. Keybers v. McComber, 501. Keyser v. Mitchell, 267, 411. Keyser v. Rice, 317, 318, 509 Key West Building Ass'n v. Bank of Key West, 467. Kibbe v. Herman, 94. Kibbe v. Kibbe, 451, 475. Kibbe v. Wetmore, 53, 475. Kidd V. Dougherty, 147. Kidd v. Shepherd, 643. Kidder v. Hadley, 254. Kidder v. Packard, 277. Kiefer v. Webster, 88. Kiely v. Bertrand. 263, 297. Kiesel v. Union Pacific, etc., 394. Kiflf v. Old Colony, etc., R. Co., 383. Kiggins v. Woodke, 256, 349. Kilborue v. Fay, 563. Kilbourne v. Wood worth, 3, 4, 426. Kilcrease v. Blythe, 254, 444. Kilpatrick, etc., Co. v. McPheely, 48. Kimball v. Evans, 306. Kimball v. Macomber, 263. Kimball v. McComber, 360. Kimball v. Plant, 278. Kimball, etc., Man. Co. v. Vromaji, 582. Kimber v. Clark, 536. Kimbrough v. Davis, 653. Kincaid v. Frog, 236. Kincaid v. Neal, 466, 540. King V. Bailey, 568. King V. Bird, 508. King V. Bucks, 207, 238, 330. King V. Cooper, 55. King V. Harrington, 60, 353, 438, 433, 433, 443, 445, 447. King V. Hubbell, 186, 173. King V. Kehoe, 683. King V. ]\Ioore, 288. King V. Shepherd, 406. King V. Southwick, 99. King V. Thompson, 61, 84. King V. Vance, 4, 435, 654 Kingman v. Perkins, 365. Kingsbury v. Phelps' Adm'r, 369. Kingsland v. Cowman, 97. Kingsland v. Worsham, 34. Kingsley v. Mo. Fire Co., 375. Kinnear v. Brunell, 556. Kinner v. Flanders, 561. Kinney v, Emerj% 163. Kinney v. Herald, 110. Kinsey v. Wallace, 13, 675. Kipp V. Chamberlain, 181. Kipp V. Fullerton, 586. Kirby v. Scoonmaker, 55. Kirby-Carpenter Co. v. Twombley, 648. Kirk V. Cassady, 500. TAULE OF CASES. Ixi Tlie references are to pages. Kirk V. Morris. 514, G07. Kirkman v. Hamilton, 268. Kirk man v. Patton, 474 Kirksey v. Bates, 228, Kirksey v, Dubose, 169. Kirksey v, Fike, 121. Kirksey v. Jones, 688, 692. Kiser v, Dannenberg, 194. Kissam v. Marshall, 481. Kistner v. Sindlinger, 305. Kitchen v. Eeinsky, 240. Kittridge v. Emerson. 468. Kittridge v. Gififord, 166, 544, 547. Kittridge v. Sumner, 195. Kittridge v, Warren, 468. Klauber v. AVright, 379. Klein v. Hoffheimer, 306. Kleins v. Nie, 42, 130. Klemm v. Dewes, 457. Klenk v. Schwalm, 89, 104, 106, 107. Klepper v. Powell, 40. Kline v, O'Donnell, 51, Klinefelter v. Blame, 199. Kling V. Childs, 521. Klink V. Kelly, 12. Knap Y. Sprague, 403. Knapp V. Barnard, 684. Knapp V. Jay, 614. Knapp V. Standley, 194. Kneer v. Hoffman, 276. Kneetle v. Newcomb, 503. Knight V. Bowley, 281. Knight V. Clyde, 260. Knight V. Griddle, 199. Knight V. Dorr, 114, 485. Knight T. Gorham, 304. Knight V, Nelson, 173, 178, 417. Knights V, Paul, 368, 377. Knisely v, Evans, 279. Knowles v. Coke Co., 237. Knowles v, Stees, 45. Knox V. Atterburg, 478. Knox v.- Mason, 36. Knox V. Protection Ins. Co,, 272, 318, 319. Knox V. Waldoborough, 28, Kohler v. Agassiz, 71. Kohler v. Muller, 3")5, Kohn V, Hinshavv, 514, 515. Kohn V. Ryan, 303, Kokorao, etc., Co. v. Inman, 98. Kolb V. Cheney, 61, 84. Kollette V. Seibel, 540, Kolsky V. Loveman, 500. Kothman v. Markson, 207, 397. Koutina v, Culpepper, 89. Kraft V, Paths, 263. Kramer v. Light Co., 675. Kramer v, Willendorff, 147. Kreker v. Mason. 200. Kressin v. Marr. 504. Kiippendorf v, Hyde, 663, 666. Kritzer v. Smith, 608. Krone v. Cooper, 27. Kruger v, Spieth, 180. Kruse v, Wilson. 383. Kuehn v. Paroni, 57. Kugler V. Shreve, 25, 34 Kuhn V. Bank, 506, Kuhn T, Embry, 106. Kuhn V, Graves. 11. Kuhn V. Kuhn, 83, Kuhn V, McMillan, 530. Kutter V. Smith, 190, ' Kyle V, Connelly, 138. Kyle V. Montgomery, 509. Kyles V. Ford, 583. L. Labe v. Brauss, 33. Lacey v. Kenley, 234. Lackett v, Rumbaugh, 263, 265, 286, 436, 452, 637. Lackey v. Seibert, 12, 586. Lackland v, Garesche, 267, 641. Laclede Bank v, Keeler, 536. La Crosse Bank v. Wilson, 367. Ladd V. Adams, 504 Ladd V. Gale. 285. Ladd V. Hill, 223. Ladd V. Jacobs, 299, 644 Ladd V, North, 395. Ladew v, Hudson Slioe Co., 52. Ladiga Mill Co, v. Smith, 3. Ixii TABLE OF CASES. TJie references are to pages. Lady Ensley Furnace Co. v. Eogau, 263. Lafayette Ins. Co. v. French, 255, 331, 332, 333, 421, 448. Laflin v. Baltimore, etc., 356. Lafollye v. Carriers, 570. Lagomarcino v. Quattrochi, 556. Lahitte v. Fiere, 575. Laidlaw v. Morrow, 376, 651. Lake Shore, etc., R. R. Co. v. Hunt, 235. Lallande v. Crandall, 518. Lamar v. Gunter, 10. Lamb v. Beldeu, 11. Lamb v. Day, 399. Lamb v. Stone, 307. Lambard v. Pike, 206, 233. Lambden v. Bowie, 472, 483. Lambert v. Haskell, 683. Lambert v. Saloy, 581. Lamberton v. Merchants' N. Bank, 578. Lambeth v. Clarke, 319. Lambeth v. Turnbull, 188. Lammon v. Feusier, 655, 660, 663. Lamont v. Cheshire, 579. Lamphere v. Lowe, 190. Lampkin v. Douglass, 103, 135, 433. Lampkin v. PhilHps, 300. Lamson v. Adlard, 36, Landa v. Obert, 64, 699. Landauer v. Victor, 55, 194, 540. Landers v. Staten Island R R. Co., 457. Landfair v. Lowman, 87. Landon v. Burke, 421. Landry v. Chayret, 372, 388. Landsberg v. Bullock, 276. Lane v. Fellows, 93. Lane v. Felt, 384. Lane v. Jackson, 13, 427. Lane v. Leech, 456, 459. Lane v. Nowell, 257. Lane v. Shears, 250, 428. Lane v. Vick, 438. Lane's Appeal, 339. Lang -v. Dougherty, 684. Langdon v. Brumby, 406. Langdon v. Lockett, 289, 290. Langert v. Brown, 565. Langford v. Langford, 407. Langford v. Ottumwa Water Power Co., 336, 357, 623. Langley v. Barry, 306. Langtry v. Circuit Judge, 333. Lankin v. Douglass, 86. Lannan v. Smith, 303. Lannan v. Walter, 372. Lapp V. Van Norman, 191, 193. Larabee v. Knight, 381. Laredo v. Nalle, 317. Larey v. Baker, 375. Large v. Moore, 303. Laribee v. Parks, 544. Larkin v. Wilson, 884. Larrabee v. Walker, 371. Las Animas Co. Commissioners v. Bond, 314. Laschear v. White, 384. Lashus V. Matthev.'s, 169. Latham v. Egerton, 442. Latham v. Selkirk, 460. Lathers v. Wyman, 683. Lathrop v. Blake, 190, 241, 285, 395. Lathrop v. Clapp, 639. Lathrop v. Snyder, 90, 103, 159. Lau V. Dry Goods Co., 652. Laudeman v. Wilson, 95. Laughlin v. Maybin, 276. Laughran v. Kelly, 363, 365, 371. Laughton v. Atkins, 7. Lavretta v. Holcombe, 173. Lawless v. Hackett, 585. Lawlin v. Clay, 251, 252. Lawrence v. Burnham, 186. Lawrence v. Connell, 591, 594. Lawrence v. Englesbj', 7. Lawrence v. Featherston, 134, 474. Lawrence v. Hagerman, 9, 676, 681, 691. Lawrence v. Jones, 483, 485. Lawrence v. Lane, 652. Lawrence v. Rice, 395. Lawrence v. Smith, 282, 335, 344 Lawrence v. State, 253. Lawrence v. Steadman, 124, TABLE OF CASES. Ixiii The references are to jjages. Lawrence v. Stratton, 562, Lawrence v. Yeatman, 132, 137, 433, 443, 464. Lawrence Bank v. Iron Co., 304. Lawson v. Adlard, 27. Lawson v. Van Auken, 43. Lawton v. Branch, 631. Lawyer v. Langlians, 92, 118. Layman y Beam, 240. lica y. Maxwell, 238. Lea y. Vail, 148. Leach y. Cook, 185. Leach v. Swann, 443, 445. Leach y. Thomas, 478. Leadville Bank y. Leppel, 321. Leah v. Greenwood, 680. Leake v. Moorman, 15. Learned v. Vanderburgh, 213. Leathers y. Cannon, 30. Lebeaume y. Sweeney, 682. Lecesne y. Cottin, 526, Lecroy v. Wiggins, 115. Le Doux y. Johusop, 189. Ledyard v. Butler. 617. Lee V. Association, 91. Lee y. Boutwell, 64. Lee y. CarroUton Sayings & Loan As- sociation, 630. Lee V. Gansel, 218. Lee V. Homer, 700. Lee V. James, 236. Lee y. Miller, 504. Lee y. O'Shannessy, 456. Lee V. Parmer, 377. Lee y. Peters, 92, 108, 125. Lee y. Robinson, 293, 305. Lee y. Ryall, 623. Lee V. Shaunnossy, 489. Lee y. Stanley, 25. Lee y. Tabor, 257. Lee V. Vail, 477. Lee V. Wilkins, 183. Leeds y. Muelk r, 462. Leefe y. Walker, 271. Leeser y. Boekhoff, 695. Leffingwell v. Chave, 139, 147. Leffingwell y. Warren, 438. Legg V. Willard, 197. Legro y. Staples, 300. Lehman y. Berdiu, 437, 490, 491. Lehman v. Broussard, 130, 135, 234. Lehman y. Hudman, 339, 379. Lehman v. Hudson, 382. Lehman v. Lowman, 61. Lciiman y. McFarland, 52. Lehman v. Van Winkle, 500. Leiber y. St. Louis Ass'n, 644 Leiber y. Union Pac. R. R Co., 511. Leigh y. Smith, 623. Leighton v. Heagerty, 383. Leighton v. Lord, 548. Leingardt v. Deitz, 375. Leitensdorfer v. Webb, 53, 54. Le Neve v. Le Neve, 577. Lenhoff v. Fisher, 638. Lenle v. Routon, 518. Lenox v. Howland, 70, Leon y. Galceran, 669. Leon v. Scram, 539. 570. Leonard v. Bank, 645. Leonard v. Bryant, 433. Leonard v. Davis, 197. Leonard y. Speidel, 530. Leonard v. Stout, 92, 124. Lera y. Frieberg, 683. Leroux v. Bald us, 288, 290. Le Roy v. East Saginaw City Rail- way, 93, 123, 181. Lesher y. Getman, 201, 202, 220, 331. Lesley y. Godfrey, 374. Leslie y. Merrill, 281. Lessee of Adams v. Jeffries, 428. Lessees v. Corwin, 437. Lessley y. Phipps, 502. Lester v. Abbott, 55. Lester v. Cummiugs, 61, 99. Letts y. McMaster, 256. Levi y. Frunklin, 323. Levicks v. Walker, 503. Levisohn y. Waganer, 281. Levitzky v. Canning, 698. Levy v. Cowan, 183. Levy y. Elliott. 109, 433. Levy V. Fitzpatrick, 440. Levy V. Lehman, 190. Levy y. Levy, 90. Ixiv TABLE OF CASES. 77ie references are to pages. Levy V. McDowell, 396. Levy V. Miller, 305, 354. Levy V. Mill man, 93. Lewis V. Birdsey, 352. Lewis V, Board, 297. Lewis V, Board of Com'rs, 300. Lewis V. Buck, 285. Lewis V. Dubose, 158. 171, 312. Lewis V. Dunlop, 379, 381. Lewis V. Faul, 356. Lewis V. Harwood, 371, 536. Lewis V. Jehns, 178. Lewis V. Johnson, 576. Lewis V. Kennedy, 124. Lewis V. Locke, 582. Lewis V. Lyman, 189. Lewis V. Mansfield, 659. Lewis V. Quinker. 341. Lewis V Smith, 271. Lewis V. Stewart, 88, 100. Lewis V. Taylor, 684, 690. Lewis V. Woodfolk, 347. Lewis V. Wright, 484. Lewiston Mill Co. v. Foss, 394. Lexington, etc., R. Co. v. Applegate, 130. Lexington & Big Sandy R. R. Co. \. Ford Place Glass Co., 620. Leyser v. Field, 691. Libbey v. Hodgdon, 24, 331. Libby v, Cushman, 13. Liberties v. Munford, 377. Lick V. Madden, 163, 545, 550. Lieber v. Association, 645. Lieberman v. Hoffman, 263. Liebman v. Ashbacker, 10, 610, 612. Life Ass'n v. Fassett, 468. Light V. Isear, 5. Lightle V. Berning, 515, 516. Lightner v. Steinagel, 285, 312, 316. Likens v. McCormick, 246, 253. Lillard v. Carter, 114, 115. Linahan v. Barr, 189. Lincoln v. Beebe, 530. Lincoln v. Strickland, 233, 244. Lincoln v. Tower, 426. Lincoln v. White, 3. Lindau v. Arnold, 377. Lindeman v. Engman, 269. Lindenthal v. Burke, 365. Linder v. Benson, 631. Liuderman v. Ingham, 563. Lindner v. Aaron, 139. Lindsay v. Larned, 692. Lindsay v. Morris, 382. Lindsey v. Dixon, 39. Lindsey v. Parker, 177. Lindsley v. Malone, 483. Lingardt v. Deitz, 623. Lippencott v. Wilson, 580. Lippitt V. Am. Paper Co., 579. Lipscomb v. McClellan, 622. Lisher v. Getmaii, 178. Lithgow V. Byrne, 80. Little V. Hale, 278. Little V. Nelson, 364, 365. Little V. Owen, 632. Little V. Ragan, 167. Little V. Sinnett, 444. Little Wolf, etc., Co. v. Jackson, 635. Littlefield v. Davis, 414, 614. Littlefield v. Smith, 298. Littlejohn v. Jacobs, 42, 57. Littlejohn v. Lewis, 375. Littlejohn v. Wilcox. 695. Littleton v. Frank, 696. Littleton v. Wyman, 210, 394. Littleton Bank v. Portland, etc., R. R. Co., 328. Livengood v. Shaw, 108. Livermore v. Rhodes, 484. Livermore v. Swasey, 7. Liverpool Ins. Co. v. Massachusetts, 204. Livingston v. Smith, 169, 170, 448. Llano, etc., Co. v. Castanola, 638. Lloyd V. Fulton, 43. Lobdell V. Bushnell, 185. Lobenstein v. Hymson, 685, 686. Lock V. Johnson, 506. Locke V. Butler, 214. Locke V. Lewis, 55, 305. Locke V. Tippets, 643. Locket V. Child, 276. Lockett V. Newfoille, 147. Lockett V. Rumbough, 77, 365. TABLE or CASES. 1X7 The references are to pages. Lockhart v. Johnson, 624. Lockhart v. Woods, 68G, G88, 692. Loder v. Littlefield, 32. Lodge V. State B-mk, 464. Lodor V. Baker, 289. Loeb V. Smith, 51, 82. Loftin V. Schakleford, 373. Lokett V. Neufville, 477. Loraerson v. Huffman, 271, 277, 384, 648. Long V. Girdwood, 194. Long V. Johnson, 632. Long V. Murphy, 159, 467, 558. Long V. Ryan, 25. Long Branch, etc. v. Davenport, 194. Longcope v. Bruce, 183. Longley v. Daly, 503. Lougstaflf V. Miles. 116. Look V. Brackett, 276, 558. Looker v. Halcomb, 693- Loomis V. Stuart, 688. /Lord V. Allen, 622. Lord V. Baldwin, 116. Lord V. Collins, 290. Lord v. Devendorf, 55. Lord V. Gaddis, 466. Lord V. Meacham, 297, C99. Lorillard v. Barrett, 89. Loring v. Wittich, 456, 460. Lorman v. Phosnix Ins. Co., 361, 368, 371, 384. Lorrain v. Higgins, 119. Losee v. Ream, 325. Lott V. Hubbard, 169. Loubat V. Kipp, 543. Louderman v. Wilson, 263. Louisville R. Co. v. Lake, 139, 130, 135, 645, 651. Louisville, etc., R. Co. v. Dooley, 324, 334. Louisville, etc., R. R. Co. v. llTichoI- son, 463. Lounsbury v. Purdy, 617. Love v. Fairfield. 131. 137. Love V. Harper, 555. Love V. Rockwell, 144. Love V. Voorhies, 5, 451, 490, 521, 523, 535. E Love V. Young, 90. Lovejoy v. Albree, 282, 332, 341, 510. Lovejo}' v. Hartford, etc.. Ins. Co., 323. Lovejoy v. Hutchins, 213, 241, 39^ 395, 437, 494. Lovejoy v. Insurance Co., 263. Lovejoy v. Lee, 388. Lovejoy v. Lunt, 253. Lovejoy v. Mur])hy, 178. Lovejoj" V. Murray, 224. Lovelady v. Harkins, 160, 165, 243. Loveland v. Alvord, 62. Loveland v. Mining Co., 614. Lovell V. Sabin, 395. Loveridge v. Plaistow, 219. Lovett V. Matthews, 7. Lovier v. Gilpin, 169, 483. Low V. Felton, 470. Lowe V. Derrick, 148, 477. Lowe V. Morris, 165. Lowe V. Stringhani, 511. Lowenstein v. Aaron, 340. Lowenstein v. Bew, 45. Lowenstein v. McCadden, 515. Lowenstein v. Monroe, 12, 673, 673, 684, 695. Lowenstein v. Salinger, 473. Lowenstine v. Gillispie, 253. Lowry v. Bank, 645. Lowry v. Clements, 623. Lowry v. Howard, 611. Lowry v. Kinsey, 559. Lowry v. McGee, 525, 611, 624. Lowry v. Stowe, 137, 148, 474. Lowry v. Walker, 395. Lucas V. Campbell, 291, 636. Lucas V. Goodwin, 228, 230. Luce V. Hoisington, 222, 233, 224 Luckett V. Rumbaugh, 2. Lucky V. Miller, 131, 137. Ludden v. Leavitt, 395, 399. Ludlow V. Ramsey, 34, 109, 125. Ludwig V. Blum, 249. Luebbering v. Oberkoetter, 224* Lundie v. Bradford. 257, 271. Lupton v. Cutter. 199. Lupton V. Moore, 353. Ixvi TABLE OF CASES. The references are to pages. Lush V, Galloway, 337, 363. Lusk V. Ramsay, 670. Lutes V. Perkins, 464. Luther v. Bordeu, 438. Luthy V. Woods, 314. Lutkins v. Aird, 48. Luton V. Hoehn, 275. Lutterloh v. Mcllhenny, 604. Luttin V. Benin, 219. Luttrell V. Martin, 153, 487. Lutz V. Kelley, 611. Lyeth v. Griffis, 210, 211, 213, 294, 394. Lyford v, Demerritt, 651. Lyford v. Tyrrel, 219. Lyle V. Barker, 188, 505. Lyle V. Foreman, 28, 34. Lyman v. Burlington, 166. Lyman v. Lauderbaugh, 696. Lyman v. Lyman, 405. Lyman v. Orr, 258. Lyman v. Parker, 360. Lyman v. Wood, 260. Lynch v. Andrews, 78. Lynch v. Crarj% 154, 543. Lynch v. Hartford Ins. Co., 643. Lynch v. Hoffman, 109. Lynch v. Johnson, 639, Lynch v. Mechanics' Bank, 582. Lynd v. Pickett, 170, 222, 223. Lynde v. Montgomei-y, 37. Lynde v. Watson, 370. Lyou V. Balentine, 269, 286. Lyon V. Blakesley, 88, 89. Lyon V. Fairfield County, 312. Lyon V. Kneeland, 272, 363. Lyon V. Eood, 213. Lyon v.* Sanford, 205, 505. Lyon V. Yates, 170. Lytle V. Lytle, 239. M. Mabry v. Harrison, 504 Macauley v. Smith, 565. Macauly, Re, 458. Mace V. Heald, 263. Mace V. Heath, 503, 506. Macdonald, Ex parte, 97. MacFarland v. Lehman, 686. Mack V. Jones, 42, 52. Mack V. McDaniel, 46, 47. Mack V. Win slow, 389. Mackey v. Hodgson, 632. Mackey v. Hyatt, 57, 81, 101. Mackie v. Cairns, 48. Mackubin v. Smith, 60. Macomber v. Doane, 365. Macomber v. Parker, 197. Macomber v. Wright, 277. Macumber v. Beam, 485. Maduel v. Mousseaux, 270, 273. Magee v, Beirne, 7. Magee v. Callan, 524. Magee v. Carpenter, 567. Magee v. Fogerty, 116, 470, 472. Magne v. Seymour, 657. Magoffin V. Mandeville, 253. Magoou V. Gillett, 113, 481. Magrath v. Hardy, 154. Mahalovitch v. Barlass, 173. Mahan v. Scruggs, 504. Maher v. Brown, 305. Mahew v, Scott, 268. Mahon v. Kennedy, 212. Main v. Bell, 170, 483, 604. Main v. Tappener, 207. Maine Ins. Co. v. Weeks, 199, 201, 27L Mairet v. Marriner, 108. Maish V. Blair, 409. Malcom v. Spoor, 398. Maley v. Barrett, 170. Malley v. Altman, 339. Malloy V. Burtis, 623. Malone v. Handley, 37. Malone v. Lindley, 25. Malone v. Samuel, 240. Malsom v. Spoor, 218. Malvin v. Christoph, 499. Mamlock v. White, 169. Manchester v. Burns, 506. Manchester v. McKee, 605. Manchester v. Smith, 301. Mandel v. McClure, 555. Mandell v. Peet, 32, 38, 93, 125, 141. TABLE OF CASES. Ixvii The references are to pages. Mangold v. Dooley, 319. INIanice v. Gould, 456. Manley v. Zeigler, 16. Manly v. Bitzer, 509. Manly v. Headley, 93, 121. Mann v. Brewer, 530. Mann v. Buford, 270, 291. Mann v. Carter, 98. Mann v. Ex'rs of Mann, 199. Mann v. Flower, 563. Mann v. Welton, 502. Manning v. Head, 246. Manning v. Mathews, 803. Manny v. Adams, 496. Manovvsky v. Conroy, 365. Mansard v. Daley, 300, 305. Mansfield v. Express Co., 355. Mansfield v. First Nat. Bank, 191. Mansfield v. Eutland Manuf. Co., 299. Mansfield v. Stevens, 262, 322. Mansur v. Cofiin, 479. Man ton v. Poole, 90, 96. Mantz V. Hendley, 80, 98, 114, 122, 138, 477. Manuf. Bank v. Osgood, 378. Maples V. Tunis. 122. Marble Falls Ferry v. Spitler, 327. Marchidon v. O'Hara, 505. Mariet v. Marriner, 125. Marine N. Bank v. Whitman Paper Mills, 290. Marion v. Faxon, 186. Market N. Bank v. Pac. N. Bank, 245. Markham v. Gehan, 276. Marklej' v. Keeuey, 575. Marks v. Abraham, 16, 604. Marks v. Anderson, 258, 262, 556. Marks v. Reinberg, 368. Marks v. Stoner, 58. Marl in v. Kirksey, 298. Marnine v. Murphy, 134, 477. Marqueze v. Le Blanc, 640. Marqueze v. Southeimer, 58, 226, 655, 684, 696. Mars V. Virginia Co., 643. Marsh v. Backus, 170, 321. Marsh v. Davis, 372, 653. Marsh v. Fulton, 592, 595. Marsh v. Phillips, 652. Marsh v. Pier, 521. 524. Marsh v. Steele, 129, 438. Marsh v. Williams, 12, 69. Marshall v. Alley, 62, 88, 475. Marshall v. Betner, 689. Marshall v. Hosmer, 176, 656w Marshall v. IMarshall, 396. Marshall v. Ravisies, 141, 614 Marshall v. White, 75. Marston v. Baldwin, 242. Marston v. Carr, 199. Marston v. Dewberry, 619. Marston v. Marston, 181. Martin v. Bayley, 181, 622. Martin v. Branch Bank, 24. Martin v. Central R. Co., 252, 348, 354, 510. Martin v. Dortch, 138. Martin v. Dry den, 12, 428, 482, 48^, 442, 616. Martin v. Foreman, 837. Martin v. Gilbert, 667. Martin v. Hartnett, 559, 561, 598L Martin v. Lamb, 362. Martin v. Maxey, 614. Martin v. McCormick, 592. Martin v. McKinney, 442. Martin v. Nixon, 577. Martin v. Perrill, 688. Martin v. Potter, 297. Martin v. Thierrj', 456, 458. Martin v. Thompson, 130, 134, 477, 563. Martin Clothing Co. v. Page, 541. Marty, In re, 70, 465. Martz V. Pfeifer, 68, 167. Martz V. Insurance Co., 263, 293. Marvel v. Babbitt, 264. Marvel v. Houston, 292, 295. Marvin v. Hawley, 283, 287, Marx V. Abraham, 65, 114, 115, 132, 481. Marx V. Lienkauff, 681. Marx V. Strauss, 52, 686. 687. Maryland v. Bait & O. R. R, 816. Maskell v. Barker, 691. Mason v. Aldrich, 404, 556. Ixviii TABLE OF CASES. Tlie references are to pages. Mason v. Ambler, 367. Mason v. Anderson, 228, 229, 239, 244. Mason v. Beebee, 365, 511. Mason V. Crabtree, 649. Mason v. Fuller, 516. Mason v. McCampbell, 881. Mason v. Messenger, 443. Mason v. Rice, 115, 136, 277. Mason v. Stewart, 139. Mason v. Tuttle, 586. Mason v. "Watts, 657. Massachusetts Nat. Bank v. Bullock, 293, 299. 300, 339. Massey v. Blako, 64. Massey v. Scott, 4, 426, 432, 434, 607. Massey v. Walker, 487. Masters v. Turner, 630. Masterson v. Phinizy, 677. Masterton v. Missouri Pac. R. Co., 325, 354. Matheney v. Earl, 628, 651. Matheny v. Galloway, 377. Matheny v. Hughes, 202. Matheson v. Rutledge. 298. Mathews v. Sands, 341. Mathias v. Yetts, 593. Matthews v. Ausley, 162. Matthews v. Dare, 86. Matthews v. Densmore, 3, 123, 172, 390. Matthews v. Houghton, 645. Matthews v. Loth, 43. Matthews v. Park, 260. Matthews v. Smith, 335, 337. Mattingly v. Boyd, 286, 410, 586. Mattingly v. Grimes, 259, 268. Maude v. Rhodes, 422, 434, 451. Maulsby v. Farr, 228, 229, 458. Maupin v. Emmons, 577. Maupin v. Va. Lead Mining Co., 607. Maury v. Roberts, 555, Maus V. Borne, 575. Mavity V. Eastbridge, 648. Maxey v. Speith, 014. Maxwell v. McBrayer, 75. Maxwell v. McGee, 187. Maxwell V. Stewart, 426. May V. Baker, 15. May V. Bank, 1-95. May V. Buckhannon, etc., 155. May V. Courtnay, 469. May V. Ferrill, 166. May V. Gamble, 143. May V. Newman, 42. May V. Sibley, 67. Mayberg v. Steagall, 573. Mayberry v. Morris, 279. Mayberry v. Steagall, 525, 559. Mayer v. Brooks, 232. Mayer v. Chattahoochie Nat. Bank, 300. Mayer v. Duke, 170, 683, 689. Mayer v. Fagan, 684. Mayer v. Walker, 686. Mayer v. Zingre, 159, 488. Mayes v. Jones, 470. Mayes v. Phillips, 200. May field v. Bennett, 4, 457. Mayfield v. Cotton, 687. Mayhew v. Davis, 372. Mayliew v. Dudley, 119, Maynard v. Cornwell, 381. Mayor v. Dunnavant, 698. Mayor v. Liverpool Ins. Co., 331. Mayor, etc. v. Horton, 317. Mayor, etc.. of N. Y. v. Genet, 96, Mayor of New York v, Sibberns, 661. McAllaster v. Bailey, 192. McAllister v. Brooks, 647, 653. McAllister v. Eiciiengreen, 71. McAllister v. Insinance Co., 323,333. McAlpine v. Sweetzer, 648. McAlpine v. Woodruff, 898. . McBride v. Bank, 135. McBride v. Farmers' Bank, 617. McBride v. Floyd, 466, 540. IMcBride v. Earn, 10, 11, 12, 620. McBurnie v. Overstreet, 224. McCaffrey v. Moore, 643. McCambridge v, Barry, 346. McCandish v. Hopkins, 138, McCann v. Randall, 354. McCanu's Estate, 266. McCaru v. Rivers, 548. McCart v. Maddox, 681. McCarthy v. Goold, 199. TABLE OF CASES. Lxix Tlie references are to pages. McCarthy v. Grace, 556. McCarthy v. IMarsh, 7. McCartney v. Branch Bank, 111. McCarty v. McPherson, 304, 638. McCarty v. Steam Propeller, etc., 272. McCaulley v. Shune, 54. McClauahan v. Brack, 00, 109. McClellan v, Lipscomb, G2, 77, 402. McClellan v. Solomon, 208. McClellan v. Young, 316. McClendon v. Wells, 127. McClerkin v. Sutton, 31. McClintock v. Laigr, 147. McCloon V. Beattie, 376. McClosky V. Circuit Court, 428. McClosky V. Wingfield, 519. McClure v. Braniff, 499. McClure v. Campbell, 195. McClure v. Smith, 228., McCobb V. Tyler, 554. McCoid V. Beatty, 300. McCollem v. White, 27, 83, 86, 93, 609, 611. McComb V. Allen, 4, 5, 521. McComb V. Reed, 395. McConnell v. Denham, 269. McConnell v. Kaufman, 217. McConnell v. Langdon, 667. McConnell v. Eakness, 651. McCook V. Willis, 137, 477. McCoombe v. Dunch, 31. McCord V. Krause, 468. McCormac v. Hancock, 270. McCormick v. Bay City, 516. McCormick, etc. v. Colliver, 556. McCormick, etc., Co. v. Jacobson, 614. McCormick, etc., Co. v. James, 351, 352. McCoun V. New York, etc., R. R. Co., 72, 153. McCown V. Smith, 268. McCoy V. Watson, .3. McCoy V. Williams, 268. McCracken v. Covington Bank, 676. McCraw v. Welch, 107. McCrea v. Circuit Judge, 96. McCrea v. Purmout, 307. McCreary v. Topper, 92. McCulloch V. Foster, 93, 123. McCullough V. Carragan, 508. McCullough V. Clark, 639. McCullough V. Grishhobber, 689, 691. McCullough V. Walton, 144. IMcCutcheon v. Weston, 522. McDaniel v. Gardner, 12, 16, 124, 676, 677, 690, 698. McDaniel v. Sappington, 134. McDanieJs v. Hughes, 645. McDonald v. Badger, 618. McDonald v. Bank, 619. McDonald v. Beach, 305. McDonald v. Bowman, 488. McDonald v. Carney, 389. McDonald v. Faulkner, 536, 565. McDonald v. Felt, 684. McDonald v. Finney, 357. McDonald v. Fist, 147, 470, 477, 483. McDonald v. Forsyth, 75. McDonald v. Gillet, 270, 328. McDonald v. Moore, 319, 354. McDonald v. Simcox, 648, 658. McDonald v. Vinette, 355, 609. McDougal V. Hennepin Co., 313. McDougall V. Board, etc., 816. McEachin v. Reed, 10, 640. McElfatrick v. Macauley, 516. McElhaney v. Gilleland, 661. McElmoyle v. Cohen, 448, 450. McElrath t. Whetstone, 700. McFadden v. O'Donnell, 643. McFadden v. Whitney, 170, 690. McFarland v. Claypool, 483. McFariand v. Farmer, 189. McFerran v. Wiierry, 474. McGarran v. Haupt, 563. McGary v. Hastings, 698. McGee v. Childress, 625. McGehee v. Walke, 271. McGinty v. Flannagan, 55. JMcGlenchy v. Winchell, 257. McGoon V. Scales, 587. McGoren v. Avery, 595. McGovern v. Haupt, 567. McGovern v. Payne, 56. McGowau V. IMyers, 290. Ixx TABLE OF CASES. The references are to pages. McGowen v. Sprague, 121. McGraw v. Memphis, etc., Co., 328. McGuire v. Pitts, 300. McGurren v. Garrity, 209. McHugh V. Curtis, 504. McHuhey v. Cawtliorn, 97. Mcllvaine v. Lancaster, 259, 267. Mcintosh V. Hurst, 139, 683. Mcintosh V. Smiley, 155. Mclntyre v. White, 131, 137. McKay v. Harrow er, 395. McKean v. Turner, 271. McKee v. Anderson' 383. McKee v. Coffin, 174. ■; McKee v. Hicks, 515. McKee v. United States, 596. McKeithan v. Terry, 504. McKellar v. Couch, 6^9. McKelvey v. Crockett, 329. McKenzie v. Bentley, 16, 36. McKenzie v. Buchan, 476. McKenzie v. Noble, 289. McKenzie v. Ramsay, 442. McKiernan v. Massingill, 96. McKinley v. Collins, 421. McKinley v. Fowler, 29. McKinney v. Baker, 572. McKinney v. Collins, 3, 426, 433. McKinney v. Farmers' Bank, 52. McKinney v. Purcell, 191. McKinney v. Rosenband, 45. McKinsej^ v. Anderson, 482. McKittrick v. Clemens, 367. McKleroy v. Cantey, 189. McKnight v. United States, 595, 598. McLane v. McTighe, 686. McLain v. Simiugton, 143. jMcLaren v. Anderson, 495. IMcLaughlin v. Davis, 692. McLaughlin v. Phillips, 617. McLaughlin v. Swan, 265, 368. McLaughlin v. Wheeler, 249, 522. McLaughlin's Adm'r v. Daniel, 592. McLellan v. Young, 314. McLellan Dry Dock Co. v. Farmers' Alliance, 682. McLeod V. Harper, 166. McLinden v. Wentworth, 49, 193. McLoud V. Ellis, 446. McLoud V. Selby, 313. McLuckie v. Williams, 127, 128. McMahon v. Boardman, 108. McMahon v. Merrick, 556. McMechan v. Griffing, 208, 578, 610, 616. McMeekin v. Johnson, 237. McMeekin v. State, 308. McMillan v. Dana, 492, 529. McMillan v. Richards, 278. McMillen v. Leonard, 496. McMinn t. Hall, 273. McMinn v. Whelan, 345. McNally v. Connolly, 189, 190. McNamara v. Ellis, 122, 475. McNeal v. Roach, 383. McNeil V. Bean, 700. McNeil V. Moore, 224. McNeilage v. Halloway, 200. McNeill V. Glass, 188. McNeill V. Roache, 384 McPhail V. Gerry, 567. McPhail V. Hyatt, 649. McPherson y. Snowden, 16, 289. McPhillips V. Hubbard, 336. McPike V. Atwell, 48, 485. McQueen v. Middleton Man. Ca, 331. McQuiddy v. Ware, 592. McRae v. Austin, 522, 525. McRae v. Brown, 696, 698. McRae v. McLean, 514. McRee v. Brown, 64, 381, 643. McReynolds v. Neal, 122, 481. Mc Williams v. Chemical Co., 383. Meacham v. Corbitt, 272. Meacham v. McCorbitt, 553. Meacham v. Strong, 547. Mead v. Bunn, 594. Meade v. Smith, 170, 232. Meadowcraft v. Agnew, 259, 265, 266. Mean v. New York, Housatonic & Northern R. R. Co., 265, 563. Means v. Brickell, 594. Means v. Osgood, 242. Meany v. Head, 242. Mechanics' Bank v. Wait, 293. TABLE OF CASES. Ixxi The references are to pages. Mechanics' & Traders' Bank v. Hodge, 289. Megee v. Beirne, 430. Meek v. Briggs, 266. Meek v. Fox, 39. Meeker v. Wilson, 12. Meier v, Hess. 302. Meigs V. Weller, 292. Meinhard v. Lilieuthal, 485. Meinhard v. Neill, 91. Meinhard v. Youngblood, 557. Meints v. East St. Louis Rail Mill Co., 386. Meir v. Hess, 257. Meldrum v. Snow, 188. Meloy V. Orton, 612. Melton V. Kansas City, etc., 645. Melton V. Lewis. 349, 654, Melton V. Troiitman, 692. Melville v. Brown, 186, 223. Memphis v. Laski, 316. Memphis, etc., R. Co. v. Whorley, 477, 638. Menderson v. Specker, 220. Mendes v. Freiters, 65, 67, 92, 467, 481, 540. Menkel v. Gumbel, 574. Menley v, Zeigler, 206. Mensing v. Engelke, 258, 269. Menzie v. Kelly, 512. Merced Bank v. Morton, 85, 434. Merchant v. Howland, 623. Merchant v. Preston, 58. Merchants' Bank v. Coleman, 306. Merchants' Bank v. Haiman, 342. Merchants' Bank v. McKellar, 51, 60. Merchants' Bank of Baltimore v. Campbell, 594. Merchants' Ins. Co. v. Brower, 214. Merchants', etc., N. Bank v. Glue Co., 454. Merchants' N. Bank v. Abernathy, 568. Merchants' N. Bank v. Jaflfray, 162. Merchants' Savings, etc., Co. v. Good- rich, 273. Meredeth v. Holmes, 495. Meredeth v. Wilkinson, 375. Meriam v. Rundlett, 647. Merrell v. Campbell, 314, 316. Merrick v. Van Santvoord, 116, 331. Merrielles v. Bank, 606. Merrill v. Campbell, 289, 312. Merrill v. Curtis. 217. Merrill v. Denton, 565. Merrill v. Hurlburt, 563. Merrill v. Law, 119. Merrill v. Low, 99. Merrill v. IMontgoraery, 123. Merrill v. President, etc., of Kala- mazoo, 582. Merrill v. Wadgewood, 667. Merritt v. Miller, 244. Mersereau v. Norton, 184, Merwin v, Chicago, 312, 316. Meshew v. Gould, 399. Meshke v. Van Doren. 685. Mesker v. Frothingham, 617. Messenger v. Klinter, 428. Messner v. Hutchins, 93, 122, 140. Messner v. Lewis, 140, 141, 218, 232, 472, 487. Messner v. Woodman, 197. Metcalf V. Clark, 220. Metcalf V. Steele, 623. Metcalf V, Young, 688. Metrovitch v. Jovovich, 518. Metts V, Insurance Co., 10, 16, 434^ 568, 590. Metzner v. Graham, 656. Meuley v. Zeigler, 229, 232, 23a Meuse v. Osbern, 472. Meyberg v. Jacobs, 541. Meyer v. Black, 45. 570. Meyer v. Deffar^e, 890. Meyer v. Evans, 62, 87, 473. Meyer v. Gage, 6, Meyer v. Paxton, 495. Meyer v. Ruff, 67. Meyer v, Sligh, 211, 413. Meyer v, Zingree, 87, Meyers v. Berotte, 559. ]Meyer3 v, Farrell, 45, Miami Powder Co, v. Hotchkiss, 4J>. Michael v. Thomas, 681. Michels v. Stork, 456. Ixxii TABLE OF CASES. Tlie references are to pages. Michew v. McCoj', 464 Michigan Central R. Co. v. Chicago, etc., R. Co., 824, 337. Michigan Dairy Co. v. Runnels, 185. Micky V. Stratton, 428. Middlebrook v. Ames, 40. Middleton v. Frame, 483. Middletou Paper Co. v. Rock River Paper Co., 5, 338. Miere v. Brush, 478. Milbank v. Broadway Bank, 147. Mildmay v. Smith, 394. Miles V. Brown, 212. Miles V. Buchanan, 357. Miles V. Butler, 690. Millar v. Babcock, 253, 418, 433, 437, 443, 445. Millaudon v. Foucher, 93. Milldam Foundry v. Hovey, 70. Milleken v. Dart, 571. Millekin v. Loring, 372. Miller v. Anderson, 383, 623. Miller v. Baker, 170, 242. Miller v. Bannister. 170. Miller v. Bowles, 572, 587. Miller v. BriukerhoflF, 86, 119. Miller v. Bryan, 563. Miller v. Chandler, 62, 70, 81, 186, 487. Miller v. Clark, 548. Miller v. C, M. & St. Paul Ry. Co., 101. Miller v. Desha, 519. Miller v. Dungan, 3, 4, 426, 434, 448. Miller v. Eastman, 244. Miller v. Ewing, 5. Miller v. Fay, 159, 207, 228, 241, 242. Miller v. Ferry, 135. Miller v. Garrett, 698. Miller v. Godfrey, 485. Miller v. Handy, 440, 443, 445. Miller v. Hooe, 282. Miller v. Larson, 364. Miller v. Little, 496. Miller v, Mahatfy, 386. Miller v. Marigny, 407. Miller v. McLain, 652. Miller v. McMillan, 228. Miller v. McNair, 44. Miller v. Munson, 106, 124 Miller v. O'Bannon, 356. Miller v. Railroad, 80. ]\Iiller V. Railway, 101. Miller v, Richardson, 259, 376. Miller v. Scoville, 273. Miller v. Sharp, 422, 434, 451. Miller v. Sherry, 501. Miller v. State, 459. Miller v. Stewart, 682. Miller v. Whitehead, 458, 621. Millett V. Blake, 239. Milliken v. Bailey, 240. Milliken v. Dart, 47. Milliken v. Mannheimer, 350, 379. Million V. Commonwealth, 544. Millison v. Fisk, 289, 314, 315, 316. Mills V. Brown, 39, 95, 184 Mills V. Camp, 210. Mills V. Martin, 442. Mills V. Stewart, 645. Mills V. Thompson, 561. Mills V. Thursby, 147. Millville V. Brown, 618. Miltenberger v. Lloyd, 471. Minis V. Parker, 271. Minis V. West, 279. ' Minchen v. Peterson Bank, 407. Minchm v, Moore, 363. Miner v. Rogers Coal Co., 645, Mineral Point R. R. Co. v. Barron, 508, 511. Mineral Point R. R. Co. v. Keep, 24. Minniece v. Jeter, 83. Minor v. Herriford, 394. Minza v. Zollicoflfer, 75. Miss. Mills V. Meyer, 224. Miss., etc., R. R. Co. v. U. S. Express Co., 327, 641. Missouri Pac. Co. v. Maltby, 509, 511. Missouri Pac. R. Co. v, Flannigan, 283. Missouri Pac. R. Co. v, Sharitt, 509. Missouri Pac. R. Co. v. Whipsker, 5U6. Mitchell V. Burhngton, 438. Mitchell V. Byrne. 168, 268. Mitchell V. Carney, 485. TABLE OF CASES. Ixxiii Tlie references are to pages. Mitchell V. Chancellor, 136, 677. Mitchell V. Chandler, 136. Mitchell V. Chesnut, 487. Mitchell V. Dalton, 193. Mitchell V. Gooch, 400. Mitchell V. Green, 369. Mitchell V. Hinman, 399. Mitchell V. Mattingly, 688. Mitchell V. Merrill, 519. Mitchell V. Pinckney, 594. Mitchell V. Pitts, 100. Mitchell V. Shook, 31. Mitchell V. Skinner, 466, 467. Mitchell V. Sutherlands, 434. Mitchell V. United States, 35. Mitchell V. Watson, 623, 640. Mitchell V. Woodson, 253. Mitchell's Adm'r v. Gray, 438, 448, 451. Mize V. Turner, 569. Mizell V. McDonald, 613. Mobile V. Rowland, 316, Mobile, etc., R Co. v. Barnhill, 512. Mobile Ins. Co. v. Teague, 129, 130. Mobile R Co. v. Turner, 316. Mobley v. Loubat, 275. Mock V. King, 292. Mocklee v. Gardner, 592. ^ Mogarrieta v. Saenz, 418. Mohassuck Felt Mills v. Blanding, 319. Moke V. Fell man, 65. Moline, etc., Co. v. Curtis, 79, 113, 483. Molm V. Barton, 396. Molton V. Escott, 560. Monroe v. Bishop, 72. Monroe v. Cutter, 531, 535. Montague v. Gaddis, 45, 47. Montague v. Mj'ers, 636. Monterey v. McKee, 73. Montgomery v. Tilley, 46. Montgomery Co. v. Thomas, 686. Montgomery Gaslight Co. v. Merrick, 377, 643, 650. Montpelier & Wells River R R Co. V. Coffriu, 433. Montpelier, etc., R R. Co. v. Coffrin, 413, 437. Montrose v. Dodson, 359. Montrose, etc., Co. v. Dodson, etc., 344. Mooar v. Walker, 314, 269. Moody V. Alter, 352, 356. Moody V. Levy, 86, 475. Moody V. Lucier. 546. Moody V. Payne, 183. Moon V. Hawks, 180. Moon V. Story, 513. Mooney v. Broadway, 394 Mooney v, Moriarity, 501. aiooney v. Union Pac. R R Co., 376, 510. Moor v. Towle, 260. Moor v. Willenberg, 675. Moore v. Allain, 534, 535, 623, 626. Moore v. Angiolette. 485. Moore v. Chattanooga, 315. Moore v. Chicago, etc., R. R. Co., 503. Moore v. Circuit Judge, 427. Moore v. Coates, 227. Moore v. Corley, 63. 474. Moore v. Davis, 627. Moore v. Dickerson, 71, 456. Moore v. Fedawa, 10, 620. Moore v. First Nat. Bank, 111. Moore v. Gammel. 684. Moore v. Geunett, 334. Moore v. Graham, 114, 165. Moore v. Graves, 190, 285. Moore v. Hamilton, 15. Moore v. Heaney, 506. Jloore V. Holt, 10, 27, 34, 35, 337, 550. Moore v. Jackson. 609, 611. Moore v. Kelly, 347. Moore v. Kidder, 206, 227, 331, 232. Moore v. Lowry, 634. Moore v. Mayor of Chattanooga, 316. Moore v. Mott, 522. Moore v. Murdock, 188. Moore v. Neill, 91. Moore v. Pillow, 200. Moore v. Railroad Co., 511. Moore v. Reaves, 579. Moore v. Reed, 637. Moore v. Sample, 618. IMoore v. Sheppard, 69. Ixxiv TABLE OF CASES. TJie references are to jiages. Moore v. Spackman, 645. Moore v. Stainton, 339. Moore v. Stanley, 252. Moore v. Stege, 574. Moore v. Thayer, 208, 623. Moore v. Westervelt, 395. Moore v. Willenberg, 12. Moore v. Whittenburg, 285. Moors V. Goddard, 259, 556. Morawitz v. Wolf, 488. Moresi v. Smith, 404. Moresi v. Swift, 10, 16, 405, 433, 540, 558, 680. Morey v. Hoyt, 189, 241, 683. Morey v. Sheltus, 271. Morgan v. Avery, 41, 91, 465, 472, 484. Morgan v. Campbell, 527, 573. Morgan v. Curtenius, 438. Morgan v. Furst, 178. Morgan v. House, 121. Morgan v. Ide, 180, 189. Morgan \. Johnson, 90, 235. Morgan v. Menzies, 144. Morgan v. Morgan, 137. Morgan v. Neville, 511, 647. Morgan v. Nunes, 27, 29, 33. Morgan v. Richards, 162. Morgan v. Spangler, 269. Morgan v. Wood, 575. Morgan v. Woods, 251. Moriarity v. Lovejoy, 566. Moritz V. Miller, 406. Morrill v. Brown, 281. Morrill v. Keyes, 223, 235. Morrill v. Law, 119. Morris v. Everly, 74. Morris v. Hall, 517. Morris v. Hogle, 252, 433, 443, 443, 445. Morris v. Hoyt, 660. Morris v. Price, 696. Morris v. Shafer, 501. Morris v. Shew, 162. Morris v. Shryock, 195. Morris v. Trustees, 478. Morris v. Union Pac. R. R. Co., 422, 434. Morris v. Ward, 502. Morrison v, Alphin, 533. Morrison v. Blodgett, 619. Morrison v. Crawford, 677, 693. Morrison v. Fake, 119, Morrison v, Lovejoy, 93, 97, 158, Morrison v. New Bedford', etc, 648. Morrison v. Ream, 120, Morrow v. Weed, 444, Morse v, Betton, 657. Morse v, Goold, 442, Morse v, Hodsden, 523. Morse v. Holt, 357, Morse v, Hurd, 170, 188, 223, 243. Morse v, Marshall, 368, 381, 383. Morse v, Presby, 245, Morton v, Grafflin, 330. Morton v. Robards, 562. Morton v. Webb, 643. Moser v. Maberry, 369. Moses V. Arnold, 468. Moses V. Noble, 500. Moses V. Waterbury Button Co., 517. Mosher v. Bartholow, 4. Mosher v. Banking House, 353. Moss V. Sanger, 575. Mott V. Lawrence, 119. Mott V. Smith, 689. Moulon V. Trenton Ins. Co., 331. Moursund v. Priess, 281, 367, 375. Moxley v. Ragan, 503. Moyer v. Lobengeir, 649. Mozarietta v. Saenz, 253. Mudge V. Lanning, 500. Mudge V. Steiuhart, 57, 113. Mueth V. Schardin, 370, 320, 337, 33a Muir V, Schenck, 302. Mulford V. Stalzenback, 441. Mull V. Jones, 506. Mullen V. Maguire, 390. Mullen V. Smith, 438. MuUer v. Leeds, 86. Mulloy V. White, 603. Mulock V. Wilson, 181. Mumper v, Wilson, 495, 509. Muncy v. Joest, 648, Mundy v, Andrews, 684. Munroe v, Cocke, 90. TABLE OF CASES. Ixxv Tlxe references are to pages. Munroe v. Frosh, 29. Munroe v. Luke, 208. Munroe v. Williams, 25. Munsheimer v. Manhattan, etc., Co., 89. Munzoheimer v. Heinze, 111. Munzenheinier v. Manhattan, etc., 84, 138, 158. Murdock v. Daniel. 633, 637. Murdough v, lilcPlierrin, 1G5, 481. Muipliy V. Adams, 14 Murphy v. Ames, 456. Murphy v. Baldwin, 25, 28, 29. Murphy v. Caldwell, 383. Murphy v. Crew, 606. Murphy v. Galloupe, 209, Murphy v. Jack, 97. Murphy v. Montandon, 13, 421. Murphy v. Purdy, 97. Murray v. Cone, 80, 139. Murray v. Elrige, 553. Murray v. Gibson, 544. Murray v. Hankin, 100. Murray v. Munford, 605, 696, 698. Murray v. Shearer. 527. Murray v. Vanderbilt, 464. Murrell v. Johnson, 289. Murtagh v. Connor, 405. Muser v. Kern, 407. Muser v. Lissner, 58. Musgrave v. Brady, 15, 479. Musgrove v. Mott, 113, 117. Muskingum Valley Turnpike v. Ward, 251, 282. Muzzy V. Lautry, 500. Myatt V. Lockhart, 300. Myer v. Liverpool, etc., Ins. Co., 307. Myer, etc., Co. v. Malm, 483. Myers v. Baltzell, 388. Myers v. Beeman, 279. Myers v. Boj'd, 435. Myers v. Cole, 171. Myers v. Farrell, 4, 41, 44, 426, 434, 684 Myers v. Lewis. 80, 138, 477. Myers v. Mott, 495. Myers v. Myers, 220. Myt-rs V. Paxton, 13. Myers v. Perry, 470, 490. Myers v. Smith, 3. 5, 15, 275, 276, 382, 425, 433, 459, 491, 531, 526. Myers v. Ulrich, 649. Myers v. Whitehart, 91, 486. Myers v. Whitehurst, 465. IMygatt V. Burton, 354 Mynatt v. McGill, 504 N. Nagel V. Loomis, 96, 248. Nailor v. French, 37. Nane v. Barberj', 216. Naper v. Noland, 93. Napoleon v. Etter, 476. Narraguagus v. Wentworth, 140. Narramore v. Clark, 291. N. A. R. R Co. V. Combs, 586. Naser v. First N. Bank, 201, 394 Nash V. Brophy, 646. Nash V. Farrington, 497, 505. Nash V. Mallory, 242. Nashville Bank v. Ragsdale, 495. Nashville v. Insurance Co, 272. Nashville v. Potomac Ins. Co., 382. Nason v. Esten, 330. Nassauer v. Techner, 539. National Bank v. Barker, 467. National Bank v. Brainard, 263, 637. National Bank v. Chase, 269. National Bank v. Huntington, 333. National Bank v. Railroad Co., 260. National Bank v. Stanley, 258. National Bank v. Stelling, 48, 125, 193. National Bank v. Teal, 67. National Bank v. Titsworth, 359. National Bank v. Turner, 319. National Bank of Commerce v. Tits- worth, 351. National Bank of Missouri v. Stan- ley, 257. National Broadway Bank v. Barker, 541. National Furnace Co. v. Mobile Ix'on Works, 456. National Papeterie Co. v. Kinsey, 467. Ixxvi TABLE OF CASES. The references are to pages. National Park Bank v. Whitmore, 49, 52. National S. L. Bank v. Mech. Nat. Bank, 168. Nations v. Johnson, 250, 428. Naumburg v. Hyatt, 494. Navigation Co. v. Gates, 257. Naylor v. Dennie, 210, Naylor v. French, 32, 55. Nazoo V. Cragin, 426, 459. Nazro v. Oil Co., 73. Neal V. Bookout, 471. Neal V. Gordon, 98, 434, 469. Neal V. Newland, 556. Neale v. Ultz, 545, 554. Neally \. Ambrose, 361. Neally v. Judkins, 160, 479. Near v. Mitchell, 643. Neeves v. Scott, 438. Nelson v. Connor, 289. Nelson v. Cook, 221. Nelson v. Field, 91. Nelson v. Fuld, 99, Nelson v. Henry, 580. Nelson v. Hyde, 465, 471. Nelson v. Munch, 91, 94, 103, 108, 466, 484. Nelson v. Sanborn, 351, 352. Nelson v. Simpson, 427, 433. Nelson Distilling Co, v. Creath, 48. Nelvitter v. Mansell, 42. Nenney v. Schulter, 540, 541, 548, 573. Nerac, Estate of, 290. Nesbitt V. Campbell, 372. Nesbitt V. Ware, 271, Nesmith v. Drum, 300. Nethercutt v. Herron, 549. Netson v. Simpson, 213. Neuer v. O'Fallon, 317. Neufelder v. Insurance Co., 75. Neuler v, O'Fallon. 289, Newark v. Funk, 317. Nevvbern Gaslight Co, v. Construc- tion Co., 76. Newby v. Hill, 298. Newcomb v. Presbrey, 596. Newdigate v, Davy, 595, Newell V. Blair, 300, 368, 382. Newell V. Ferris, 263. Newell V. Great Western Railway Co., 332. New England Ins. Co. v. Chandler, 265. New Hanover Bank v. Blossc'ii, 252. New Haven Co. v. Raymond, 462, 516. New Haven Saw Mill Co. v. Fowler, 289. N. H. Ins. Co. V. Piatt, 199, 201. New Orleans v. Garland, 93. New Orleans v. Morris, 558. New Orleans Canal and Banking Co. V. Comly, 32, 41. New Orleans, etc., Co. v. Beard, 543. New Orleans, etc, v. Hemphill, 250, 428. New York & Erie Bank v. Codd, 484. New York Ins. Co. v. Roulet, 307, Newfeld v. Newfeld, 468. Newhall v. Kinney, 232, 618. Newland v. Reilly, 282. Newman v. Hexter, 91. Newman v. Hook, 210. Newman v. Kane, 395. Newman v. Ki-aim, 54, 433, Newman v. Manning, 377, 628, 651. Newman v, Willets, 181. Newton v. Adams, 398. Nichols v. Goodheart, 266, 270, 328, 510. Nichols V. Hill, 658. Nichols v. Hooper, 282, 301. Nichols V. Levy, 438. Nichols V. Patten, 213, 227. Nichols v. Patton, 427, 434. Nichols V. Valentine, 395. Nicholson v. Crook, 260. Nicholson v. Leavitt, 55. Nicholson v. Walker, 270. Nicholson v. West, 274. Nickerson v. Chase, 270, 293, 372. Nickerson v, Nickerson, 272, JNickolls V, Scofield, 303, NicoUs V, Lawrence, 30, 280, Nicrose v. Irvine, 336. Nimmon v. Worthingtou, 582. TABLE OF CASES. Ixxvii Tlie references are to pages. Nims V. Ford, 323. Nims V. Spun-, 236. Nines v. Pyle, 301. Nixon V. Nash, 276. Noble V. Bourke, 637, 63a Noble V. Holmes, 170. Noble V. Merrill, 624. Noble V. Oil Co., 645. Noble V. Thomi)son Oil Co., 647. Noble V. Smith, 298. Nockless V. Eggspieler, 677, 695. Nolen V. Crook, 258. Nolen V. Royston, 113, 115. Nolte V. Von Gassy, 290, 328. Nolle V. Thompson, 12, 675. Noonan v. Pomeroy, 120. Norcross v. Benton, 372. Norcross v. Widgery, 577. Nordhaus v. Peterson Bros., 128, 688, 691. Nordlinger v. Gordon, 479. Norman v. Horn, 80, 82, 224. Norris v. Burgoyne, 263. Norris v. Hall. 034. Norris v. Sowles, 171. Norris v. Watson, 211. North V. Belden, 563. North V. McDonald, 37, 38. North Ala. D. Co. v. Orman, 24 North Central R Co. v. Eyder, 351, 358. North Chicago Rolling Mill Co. t. St. Louis Ore, etc., Co., 371. North Star, etc., Co. v, Ladd, 262, 322. Northfield, etc., Co. v. Shapleigh, 352. Northam v. Cartwright, 298, 305. Northampton Bank v. Wylie, 684, 700. Northern Bank v. Hunt's Heirs, 150. Northwestern, etc., Co. v. Mahaffy, 578. Northwestern Ins. Co. v, Atkins, 272. Norton v. Clark, 292. Norton V. Flake, 116. Norton v. Insurance Co., 297, 298. Norton v. Kearnej% 170. Norton v. !Moyei-s, 591, 594. Norton v. Norton, 260. Norton v. Rock Co., 595. Norton v. Soule, 263, 272. Norvell v. Porter, 239, 319, 346, 353, 453. Norwood V. Kirby, 026. N. O. M. & C. C. R. Co. V. Long, 350. Noyes v. Brown, 298, 573. Noyes v. Canada, 555. Noyes v. Cunningham, 486. Noyes v. Foster, 643. Noyes v. Johnson, 570. Noyes v. Lane, 485. Nudd V Burrows, 440. Nuer V. O'Fallon, 259. Nugent V. Nugent, 252. Nugent V. Opdyke, 303. Nutter V. Connet, 11, 39, 46, 543, 554. Nutter V. Framingham, etc., R. Co., 271, 373. Nye V, Liscomb. 282, 335, 454. Nye V. Van Husan, 55. o. Oakes v. Marquardt, 390. Oakey v. Drummond, 234. Oakey v. Railroad Co., 381. Oakley v. Aspinwall, 424. Ober V. Matthews, 367. Oberfelder v. Kavanaugh, 170, 657. Oberne v. Gaylord, 684. Oberne v. O'Dounell, 82. Oberteuffer v. Harwood, 361. Oberton v. Williston, 190. O'Brian v. Young, 72. O'Brien v. Collins, 317, 553. O'Brien v. Coulter, 78. O'Brien v. Daniel, 443, 445. O'Brien v. Norris, 198. Ockermaij v. Cross, 195. O'Connell v. Ackerman, 276. O'Connell v. Reed, 66, 74 O'Connor v. Blake. 614 O'Connor v. O'Connor, 648. O'Connor v. Walter, 511. Odiorue v. CoUey, 190, 285, 401. Odom V. Shackelford, 240. O'Donald v. Constant, 198. Ixxviii TABLE OF CASES. Tlie references are to pages. O'Donohue v. Simmons, 178. Oelrichs v. Spain, 698. Oeters v. Aehle, 431, 434 O'Farrell v. Heard, 132, 171, 479, 581. O'Farrell v. Stocliton, 130. Oflfut V. King, 78. Offutt V. Edwards, 33, 485, 681. Ofterdinger v. Ford, 338. Ogden V. Walters, 60. O'Grady v. Julian, 691. O'Hara v. Improvement Co., 234. Ohio & Miss. R. R Co. v. Alvey, 569, 644. 647. Ohio, etc., Co. v. Insurance Co., 114, Ohio, etc., R. R. Co. v. Schultz, 441. Ohors V. Hill, 303. Olcott V, Robinson, 353. Oldham v. Ledbetter, 360. Oldham v. Scrivener, 386. Olds V. Carj^ 681. O'Leary v. Bradford, 659. Oliphant v. Mansfield, 698. Oliver v, Athey, 509. Oliver v. C. & A. R R Co., 318, 320, 463. Oliver v. Gwin, 493. Oliver v. Lake, 188. Oliver v. Man. Co., 96. Oliver v. Smith, 289. Oliver V. Town & Watson, 108, 125. Oliver v. Towns, 195. Oliver v. Wilson, 33, 148, 477. Olmstead v. Rivers, 66, 129, 465. O'Neal v. Bank, 681. O'Neal v. Owens, 478. O'Neal, Ex parte, 636. O'Neill V. Sewell, 308. Ouley V. Shepherd, 237. Opdyke, Ex parte, 382. Oppenheim v. Pittsburgh, etc., R Co., 651. Oppenheimer v. Marr, 287, 288. Ordiorne v. Colley, 295. Ordvvay v. Remington, 273. O'Reer v. Strong, 93. Oregon, etc., Co. v. Gates, 258, 397. O'Reilly v. Freel, 484, 486. Oriental Bank v. Insurance Co., 632. Ormond v. Moyer, 379. Ormsby v. Anson, 363. Orr V. Lindsey Shoe Co., 54. Orth V. Jennings, 618. Osborne v. Jordan, 363. Osborne v. Robbins, 466, 471. Osborne v. Schiffer, 476. Osborne v, Schutt, 506. Osgood V Blackmore, 442. Osgood v. Breed, 7. Osgood V. Holyoke, 160, 479. Osgood V. Maguire, 510. Otis V. Benedict, 485. Otis V. Ford, 272. Otis V. Jones, 470. Otley V. Manning, 43. Ott V. Smith, 51. Our House No. 3 v. State, 669. Overton v. Cheek, 165. Overton v. Hill, 28. Owen V. Dixon, 539. Owen v. Estes. 368. Owen v, Jordan, 443. Owens V. Johns, 83. Owens V. Starr, 169. Oysted v. Shed, 232. Ozmore v. Hood, 13. P. Pace V. Lee, 540, 558. Pace V. Smith, 366. Pach V. Gilbert, 487, 544. Pacific Nat. Bank v. Mixter, 490. Packet Co. v. Robertson, 513. Packord v. Wood, 197. Padden v. Moore, 337, 340. Paddock v. Kitredge, 592, 593. Paddock v. Matthews, 470, 491. Paddock, etc. v. Mason, 177, 655. Padfield v. Brine, 199. Page V. Belt, 221, 657. Page V. Crosby, 297. Page V. Ford, 138, 139. Page V. Generes, 227, 235. Page V. Jewett, 467. , Page V. Latham, 13. Page V. Long, 530. TABLE OF CASES. Ixxix The referencea are to pages. Page V. Thompson, 303. Page V. Thrall, 399. Paihles v. Roux, 490. Paine v. Farr, 227. Paine v. Holliday, 536. 540. Paine v. Mooreland, 247, 249, 415, 434. Paine v. Tilden, 479. Painter v. Gibson, 127. PaJacious v. Braslier, 516. Palmer v. Ballard, 648. Palmer v. Pole}', 130. Palmer v, Gilmore, 383. Palmer v. Hawes, 43. Palmer v. Noyes, 92. Palmer v. Oakley, 254, 428. Palmer v. Thayer, 240. Palmer v. Vance, 523. Paltzer v. Bank, 544. Pancake v. Harris, 122. Pancoast v. Washington, 3, 426. Pangburn v. Fatridge, 242. Panhandle N. Bank v. Still, 62, 63. Paper Co. v. Paper Co., 165. Paradise v. Farmers' & Merchants' Bank, 190, 220. Parham v. McMurray, 499. Park V, Hamron, 479. Park V. Matthews, 264, 265, Park V. Mighell, 519. Park V. Trustees of Williams, 375. Park Bank v. Whitmore, 81. ' Parker v. Brady, 4, 470, 604. Parker v. Dauforth, 277. Parker v. Donnallj', 292. Parker v. Farr, 521. Parker v. Guillow, 276. Parker v. Kinsman, 412. Parker v. Overman, 85. Parker v. Page, 364. Parker v. Pistor, 619. Parker v. Porter, 496. Parker v. Scott, 92, 124. Parker v. Walrod, 93, 121. Parker v. Wilson, 364, 646. Parker v. Wright, 276. Parkham v. Randolph, 594. Parks V. Adams, 8G, 305. Parks V. Cushmau, 292, 494. Parks V. Sheldon, 527. Parks V. Turner, 66. Parks V. Young, 620, 690. Parlin v. Spencer, 556, 564. Parmele v. Johnson, 125. Parmele v. McLaughlin, 580. Par melee v. Johnston, 92. Parmenter v. Childs, 357. Parmer v. Ballard, 377. Parrott v. Dearborn. 395. Parsons v. Clark, 269. Parsons v. Joseph, 336. Parsons v. McGavock, 316. Parsons v. Paine, 4, 251, 606. Parsons v. Root, 373. Parsons v. Sprague, 470, 612. Parsons v. Stockbridge, 42, 109. Parsons v. Wells, 534. Patch V. Wessels, 10, 206, 212, 315, 396. Pate V. Bacon, 582. Patrick v. Baxter, 505. Patrick v. Montader, 239. Patrick v. Solinger. 100, 479. Patten v. Wilson, 298. Patterson v. Caldwell, 641. Patterson v. Delaney, 91, %. Patterson v. Goodrich, 465, 466, 471. Patterson V. Gulnare, 114, 115. Patterson v. Harland, 268. Patterson v. Laugh 1 in, 31. Patterson v. Perry, 263. Patterson v. Stephenson, 400, 437, 549. Patton V. Garrett, 226, 655, 680, 696. Patton V. Gates, 306. Patton V. Smith, 271. Paul V, Burton, 213. Paul V. Hussey, 444. Paul V. Paul, 271, 385. Paul V. Reed, 271. Paul V. Slason, 399. Paul V. Virginia, 333. Paul V. Ward, 475. Pawley v. Gaines, 287. Pax ton V. Moravek, 657, 693. Paxton V. Steckel, 170, 242. Payne v. Able, 528. Payne v. Discus, 447. Payne v. Drew, 420. Ixxx TABLE OF CASES. Tlie references are to pages. Payne v. Snell, 491, 523. Peabody v. Maguire, 260. Peace v. Jones, 273. Peacock v. Bell, 442. Peacock v. Pembroke, 203. Peacock v. AVildes, 31. Peake v. Camei'on, 495. Pearce v. Baldridge, 233. Pearce v. Bell, 65. Pearce v. Maguire, 513, 523. Pearce v. Shorter, 376. Pearre v. Hawkins, 106. Pearson v. Gayle, 132. Pease v. Underwriters' Union, 336. Peaslee v. Haberstro, 165. Peat Co. V. Tuck, 73. Peay v. Morrison, 78. Pecard v. Home, 652. Peck V. Barnum, 277. Peck V. Fisher, 182. Peck V. Guerny, 593. Peck V. Jeuness, 468. Peck V. Sill, 547. Peck V. Stratton, 371, 557, 559, 560. Peck V. Webber, 10, 505. Peck V. Whiting, 539. Peck ham v. Glass Co., 224. Peckham v. North Parish in Haver- • hill, 331. Peebles v. Meeds, 262. Peebles v. Weir, 164, 463. Peeler v. Stebbins, 394 Peet V. McDaniel, 271. Peet V. Whitmore, 307. Peevey v. Cabaniss, 533. Pefley v. Johnson, 682. Peiser v. Cushman, 141. Pellman v. Hart, 302. Pelton V. Platner, 244. Pendleton v. Perkins, 78, 314, 317. Pendleton v. Smith, 469. Pendleton v. St. Louis, 316, Penfield v. Harris, 456. Penhallow v. Dwight, 211. Peninsular Stove Co. v. Hosmer, 320. Penman v. Gardner, 471. Penn v. Pelan, 356. Pennebaker v. Tomlinson, 308. Pennell v. Grubb, 373. Penney v. Little, 610, 616. Penniman v. Daniel, 106, 113. Penniman v. Ruggles, 259, 387. Penniman v. Smith, 301. Pennoyer v. Neff, 3, 112,249,255,422, 452. Pennsylvania R. Co. v. Pennock, 324. Pennsylvania R. R. v. Peoples, 76, 324. Pennsylvania Steel Co. v. New Jer- sey Southern R. R. Co., 559. Penton v. Brown, 218. People v. Baker, 426, 438. People v. Baruett, 463. People V. Blanchard, 89. People V. Bradley, 463. People V. Boylan, 71. People V. Cameron, 4, 107, 491, 505, 514, 531. People V. Cass Circuit Judge, 364. People V. Dunning, 165. People V. Gray. 253. People V. Hubbard, 318, 319. People V. Huber, 353. People V. Johnson, 300. People V. Koeber, 443. People V. Lucas, 661. People V. Mayor, etc., 316. People V. McClay, 26. People V. Recorder, 106. People V. Reeder, 404. People V. Schuyler, 170, 225, 661. People V. Steuben, 165. People V. Van Buren, 78. People V. Wheeler, 336. People's Bank v. Barbour, 267. People's Bank v. Egg-Case Co., 66. People's Bank v. Shryock, 618. People's Banli v. West, 227, 235, 546. Peoria Ins. Co. v. Warner, 16. Pepper v. Dunlap, 534. Perea v. Colo. N. Bank, 384. Perego v. Bonesteel, 287. Perine v. George, 381. Perkerson v. Snodgrass, 475. Perkins v. Bragg, 499, 501, 505, 609, 611. TABLE OF CASES. Ixxxi TJie references are to images. Perkins v. Guy, 275. Perkins v. McDowell, 364 Perkins v. Parker, G53. Perkins v. Piko, 1."). Perkins v. Pitman, 17G. Perley v. Foster, 393. Perminter v. McDaniel, 129, 515. Perrill v. Kauffman, 107, 124. Perrin v. Claflin, 224. Perrin v. Leverett, 232. Perrin v. :\[c.Mann, 700. Perrine v. Evans, 129, 225 Perry v. Carr, 218. Perry v. Coates, 199, 201. ; Perry v. Post, 513, 518. Perry v. Sliarpe, 239. Perry v. Stephens, 447. Perry v. Thornton, 292. Perry v. Wasliburn, 373. Perry t. WiUiams, 170, 188, 223. Peru Plow Co. v. Benedict, 472. Peters v. Conway, 216. Peters v. League, 357. Peters v. Schoelkopf, 516. Peters v. The Warren Ins. Co., 7. Peterson v. Loring. 262, 273. Pfitit V. Mercer, 680. Petring t. Chrisler, 516. Petring v. Heer, 568. Petters v. McClannahan, 441. Pettes V. Spalding, 276. Pettibone t. Griswold, 563. Pettibone v. Stevens, 43. Pettingill v. Andr. R. R. Co., 888. Pettit V. Booming Co., 319. Pettit V. Mercer, 128, 677. Pettit V. Owen, 680. Petty V. Clark, 592. Petty T. Frick Co., 255, 455. Petty T. Lang, 212, 226. Pfoutz V. Com ford. 27, 33. Pharr v. Reynolds, 627. Phelps V. Baker, 402, 433. Phelps V. Boughton, 351, 458. Piielps V. Campbell, 700. Phelps V. Coggeshall, 696. Phelps V. Delmore, 211. Phelps V. Holker, 3, 426, 483, 451. F Phelps V. Railroad Co., 263. Phelps V. White, .593. Phelps V. Young, 90, 93. Phila., etc., R. Co. v. Kent, etc., R Co., 185. Philips V. Stewart, 607. Phillips V. Ash. 77, 622. Phillips V. Bridge, 395, 405, 680 Phillips V. Cook, 183, 618. Phillips V. Germon, 274, 348. Phillips V. Harvey, 683. Phillips V. Hines, 5, 521. Phillips V. Newton, 570. Phillips V. Welsh, 419, 433, 465. Phillipsburg Bank v. Lackawanna R. R. Co., 24. 25, 483, 485. Philpott v. Newman, 158, 479. Phipps V. Rieley, 257. 366, 682. Phoenix Ins. Co. v. Willis, 273, 322. Pickard v. Samuels, 45. Pickering v. Wendell, 259. Pickett V. Ferguson, 509. Pickhardt v. Antony, 85, 92. Pickler v. Rainey, 379. Picquet V. Swan, 188, 268, 292, 368,440, 447. Pier V. Armory, 246. Pierce v. Atwood, 162. Pierce v. Bell, 481. Pierce v. Benjamin, 681. Pierce v. Boston, 372. Pierce v. Carleton, 190, 271, 285, 288, 377, 383. Pierce v. Chicago, etc., R. Co., 506, 509. Pierce v. Crompton, 468. Pierce v. Hall. 567. Pierce v. Jackson, 228, 495, 518, 540. Pierce v. Jennings, 77. Pierce v. flyers, 485. Pierce v. Partridge, 548. Pierce v. Railway Co., 510, 627. Pierce v. Richardson, 469. Pierce v. Shorter, 200, 201. Pierce v. Strickland, 139, 232, 244, 395. Pierce v. Wade, 623. Pierce v. Whiting, 515, 522. Pierse v. Miles, 116, 139, 682. Ixxxii TABLE OF CASES. The references are to pages. Pierse v. Smith, 92, 97, 116, 119. Pierson t. Hovey, 400. Pierson v. McCahill, 643. Pierson v. Mauning, 48. Pierson v. Robb, 616. Pierson v. Truax, 503. Pierson v. Weller, 265. Pigue V, Young, 483. Pilling V. Otis, 51. Pillsbury v. Small, 403. Pinney v. Hersh field, 681. Pinson v. Kirsh. 680. Pinyan v. Berry, 375. Pioneer Printing Co. v. Sanborn, 384. Piper V. Billiard, 577. Piper V. Piper, 271, 292, 295, 885. Piscataqua Bank v. Turnley, 75. Piscataqus v. Kingsbury, 590. Pitkins V. Boyd, 108. Pitkins V. Johnson, 606. Pitman v. Searcey, 172. Pitts V. Boroughs, 32. Pitts V. Mower, 303, Pitts V. Scribner, 467. Pittstown V. Plattsburgh, 316. Pixley V. Huggins, 617, 618. Pixley V. Reed, 676, 691. Place V. Sweetzer, 618. Plant V. Mutual Ins. Co., 360, 362. Plant V. Smythe, 475, 505, 617. Planters' Bank v. Byrne, 16, 134, 169, 469, 477. Planters' & Merchants' Bank v. An- drews, 24, 137, 148. Planters' & Merchants' Bank v. Leav- ens, 330. Plater v. Hepburn, 601. Piatt V. Brown, 218. Plattsburgh Bank v. Brainard, 291. Plume, etc., Co. v. Caldwell, 570, 576. Plummer v. Plummer, 585. Plummer v. Rundlett, 261. Plumpton V. Cook, 478. Plunkett V. Sauer, 672. Plympton v. Bigelow, 214, 329, 331, 335. Poage V. Poage, 93. Polk V. Wendall, 592. Pollard V. Ross, 287. Pollard V. Wegener, 246. Polley V. Lenox Iron Works, 220. Pollock V. Gantt. 684. Pomeroy v. Betts, 253. Pomeroy v. Kingsley, 403. Pomeroy v. Ricketts, 90, 96, 461. Pomeroy v. Stevens, 562. Pomroy v. Parmlee, 220. Pomroy v. Parnelle, 296. Pond V. Baker, 16, 227, 229, 232, 233, 400, 656. Pond V. Griffin, 11, 553. Pond V. Skidmore, 210. Ponton V. Griffin, 298. Pool V. Ellison, 177. Pool V. San ford, 573. Pool V. Symonds, 395. Pool V. Webster, 15, 80. Poole V. Carhart, 303. Poole V. Dyer, 530. Pope V. Cutler, 254, 428. Pope V. Haman, 619. Pope V. Hibernia Ins. Co., 64, 69, 88, 360. Pope V. Hunter, 134, 477. Pope V. Insurance Co., 376. Pope V. Salomons, 78. Popplewell V. Hill, 676. Port V. United States, 593. Porter v. Brooks, 13, 14 Porter v. Bullard, 298. Porter v. Byrne, 206, 232, 238. Porter v. Earth man, 555. Porter v. Hildebrand, 75, 284, 827. Porter v. Knight, 687. Porter v. Miller, 166. Porter v. Millett, 616. Porter v. Partee, 602. Porter v. Pico, 207, 228, 230, 241, 470, 616. Porter v. Stapp, 173. Porter v. Stevens, 371, 384 Porter v. West, 303. Posey V. Buckuer, 31. Post V. Bird, 237. Post V. Bowen, 304 Post V. Leet, 595. TABLE OF CASES. Ixxxiii The references are to pages. Post V. Love, 292, 295. Posthoff V. Schreiber, 570. Poteet V. Bond, 527. Potomac Steamboat Co. v. Clyde, 426, 431, 432, 433, 442, 456, 457, 459. Potshinsky v, Krempkan, 504. Potter V. Baker, 147. Potter V. Cain, 272. Potter V. Phillips, 386. Potter V. Sanborn, 29. Potter V. Stevens, 641. Pottier & Stymus Manuf. Co. v. Tay- lor, 308. Pounds V. Hamner, 374, 698. Powell V. Aiken, 496. Powell V. Kelly, 194. Powell V. Matthews, 53. Powell V. McKechnie, 210, 894. Powell V. McKee, 220. Powell V, Rankin, 190. Powell V. Sammons, 271. Powers V. Hurst, 03. Powers V. Large, 55. 539, Powers V. London Bank, 87, Powers V . People, 442. Prader v. Grimm, 697. Prather v. Chase, 241. Pratt v. Albright, 340. Pratt v. Cunliff, 648. Pratt V. Sanborn, 346. Pratt V. Wheeler, 206, 29a Pratt V. Young, 346. Preble v. Conger, 268. Prentice v. Pleasanton, 265. Prentiss v. Bliss, 191, 285, 287. Prentiss v. Schirmer, 43. Prescott V. Heard. 562, 577. Prescott V. Hull, 372. 563. Prescott V. Locke, 197. President of Union Turnpike Co. v. Jenkins, 316. Presler v. Turner, 648. Pressnall v. Mabray, 271. Preston v. Cooper, 676. Preston v. Frye, 591, 592, 594. Preston v. Hood, 527. Preston v. Yates, 177. Prewitt V. Carmichael, 75. Price v. Bradford, 306. Price v. Brady, 200, Price v. Cox, 71, 112. Price V. Higgins, 640. Price V. Jackson, 585. Price V. Kennedy, 514. Price V. Merritt, 16. Price V. Reed, 466. Priest V. Rice, 562, 563, 578, 579. Prince v. Clark, 114, 530. Princeton Manuf. Co. v. White, 98. Prins V. Hinchliff, 87. Probate Court v. Niles, 20a Probst V. Scott, 202. Proctor V. Greene, 320, 568. Proctor V. Lane, 267. Proctor V. State, 442. Propeller Hilton v. Miller, 667. Proper v. Cobb, 187. Proseus v. Mason, 623. Proskey v. West, 131, 137, 148. Prout V. Gregory, 286. Prout V. Grout, 202. Prout V. Vaughan, 261, Providence Bank v. Benson, 297. Providence & Stonington S. S. Co. v. Va. Fire & Marine Ins. Co., 202. Pruitt v. Armstrong, 508. Pry V. Hannibal &. St. Jo. R. R. Co., 456, 458. Publishing Co. v. Hitson, 222, 541. Puckett V. Drug Co., 63. Puflf V. Hutcher, 650. Puffer V. Graves, 650. Pugh V. Arton, 190. Pulliam V. Aler, 649. Pulliaiu V. Newberry, 576. Pull is V. Fox, 275. Pulsifer v. Waterman, 181. Pupke V. Mead or. 385. Purcell V. McFarland, 165. Pur cell V. Steele, 515. Purdy V. Irwin, 617. Purnell v. Frank, 63 Purves v. Lex, 638. Putnam, Ex parte, 488. Putnam v. Banking Co., 234 Ixxxiv TABLE OF CASES. The references are to pages. Putnam v. Hall, 164. Putnam v. Osgood, 50. Pyle V. Craven, 251, 253. Pyrolusite v. Ward, 23. Q. Quarl V. Abbett, 78, 167. Quarles v. Robinson, 89, 119. Quebec Bank v. Carroll, 36. Quigg V. Kittredge, 370. Quillen v. Arnold, 531. Quinby v. Conlan, 496. Quine v, Mayes, 490, 493. Quinland v. Danford, 473, 483. Quiun V. Blanck, 383. Quinn v. Halbort, 567. R. Pace V. Maloney, 246, 434. Rachelman v. Skinner, 676. Rae V. Brown, 695. Raefle v. Moore, 292, 295. Raid V. Pelletier, 44. Raiguel v. McConnell, 200. Railroad Co., Ex parte, 253, 426, 432, 436, 440, 442, 469. Railroad Co. v. Baker, 511. Railroad Co. v. Barron, 513. Railroad Co. v. Dooley, 510. Railroad Co. v. Gibson, 257. Railroad Co. v. Ketchum, 432. Railroad Co. v. Maltby, 510. Railroad Co. v. Payne, 372. Railroad Co. v. Pennock, 329. Railroad Co. v. People, 36. Railroad Co. v. Peoples, 284, 382. Railroad Co. v. Tapia, 695. Railroad Co. v. Todd, 360, 603, 623, 628. Railway Co. v. Gibson, 257. Railway Co. v. Ragland, 506. Railway Co. v. Rollins, 364. Railway Co. 'v. Smeeton, 263, 339. Rainwater v. Faconesowitch, 42. Rainwater, etc., Co. v. Oneal, 91. Ramsey v. Glenn, 564. Rancher v. McElhenny, 487. Rancher v. McElhinney, 614. Rand v. White Mountains R. R, 371. Randall v. Way, 373. Randolph v. Heaslip, 636. Randolph v. Little, 505, 506, 633, 637. Randolph v. McCain, 45. Randolph v. Randolph, 309. Ranft V. Young, 613. Rankin v. Bell, 691. Rankin v, Dulauey, 338. Ranlett v. Blodgett, 174, 176, 656. Ranlett v. Constance, 680. Panning v. Reeves, 135, 478. Ransom v. Halcott, 217, 656. Ransom v. Hays, 271. Ransom v. Williams, 442. Rapine v. McPherson, 228. Rapp V. Kyle, 247. Rarechide v. Enterprise, etc., Co., 557. Raspilliar v. Brownson, 677. Rathbone v. London, 462, 502. Rauseh v. Moore, 100. Ravenga v. IMackintosh, 690. Raventas v. Green, 311. Raver v. Webster, 75, 690. Rawles v. People, 158. Rawlins v. Pratt, 557. Rawlins v. Powers, 57. Rawlins v. Nickham, 593. Ray V. Faulkner, 299. Ray V. Underwood, 282. Raymond v. Bell, 444. Raymond v. Green, 142, 672, 695. Raymond v. Narragansett Co., 383. Raymond v. Rockland Co., 336. Rayne v. Taylor, 25, 29. Raynes v. Lowell, etc., Society, 265. Raynolds v. Ray, 208. Raynor v. Pacific National Bank, 168, 169. Read v. Jeffries. 12. Read v. Sprague, 406. Read v. Ware, 73, 472. Reagan v. Kitchen, 519. Reams v. McNail, 169. Reaugh v. McConnel, 459. Recht v. Kelly, 503. TABLE OF CASES. Ixxxv Tlie references are to pages. Red V. Powers, 265. Redd V. Burns, 300. Reddick v. Smith, 191, 285, 287. Reddy v. Bego, 34 Redgrave v. Hurd, 593. Reding v. Ridge, 93. Redington v. Frye, 15. Redman v. White, 304, 638. Redondo v. Brewer, 77. Redus V. Wofford, 13, 82, 242. Redwood v. Consequa, 36, 122. Redwitz v. Waggaman, 560 Reed, Ex parte, 661. Reed v. Bagley, 155. Reed v. Bank of Ky., 130. Reed v. Beach, 76. Reed v. Bolt, 557. Reed v. Ennis. 482, 543. Reed v. Fletcher, 352. Reed v. Howard, 186, 618. Reed v. Ketch, 27. Reed v. Maben, 474, 482. Reed v. Mayhew, 483. Reed v. McCloud, 38, 108. Reed v. Ownby, 495. Reed v. Perkins, 236. Reed v. Samuels, 692. Reed v. Sprague, 190. Reed v. Whitton, 648. Reed's Appeal, 25. Rees V. Augustine, 482. Reese River S. M. Co. v. Smith, 598. Reeve v. Smith, 298. Reeves v. Clark, 443. Reeves v. Coml}% 32, 41. Regan v. Pac. R R. Co., 371, 384. Regenstein v. Pearlstein, 192, 450. Regina v. Hartington, 7. Regina v. Wye. 7. Reid V. McLeod, 277. Reid V. Tucker, 204. Reidhar v. Berger, 680, 685. Reiflf V. Mack, 507. Reifsneider v. Lee, 288, 296. Reinhart v. Soap Co., 364, 365, 509. Reinhart v. Hardesty, 264. Reiss V. Brady, 472. Remington v. Cady, 186. Remington Paper Co. v. O'Dough- erty, 71. Remington Paper Co. v. Printing Co., 71, 407. Renfro v. IMerryman, 626. Renier v. Hurlbut, 331. Renkert v. Elliott, 144, 683 Rennecker v. Davis, 337. Repine v. McPherson, 229, 244, 422, 434. Repley v. Severance, 260. Rewe V. Heath, 698. Reyburn v. Brackett, 286. Reynell v. Sprye, 594 Reynolds v. Bell, 487. Reynolds v, Damrell, 479. Reynolds v. De Geer, 676. Reynolds v. Horn, 479. Reynolds v. Jordan, 492, 523. Reynolds v. McKinney, 273. Reynolds v. Simpkins, 470. Reynolds v. Smith, 260, 267. Reynolds v. Tenant, 501, 505. Rhawn v. Pearce, 195. Rhea v. Powell, 214 Rhine v. Blake, 261. Rhine v. Danville, etc., R. Co., 360. Rhine v. Railroad Co., 384 Rhoads v. Woods, 395. Rhode Island Ex. Bank v. Hawkins, 357. Rhode Island, etc. v. Keeney, 245, 418. Rhodes v. McGarry, 257. Rhodes v. Smith, 518. Rice V. Dale, 150. Rice V. Dorrian, 61, 540. Rice V. Dudley, 369. Rice V. Dwight Man. Co., 593. Rice V. Hauptman, 471. Rice V. McMartin, 605. Rice V. Morner, 50, 51, 90. Rice V. Nolan, 502. Rice V. Pertius, 45, 53. Rice V. Third N. Bank, 320. Rice V. Tiiornton, 74, 473. Rice V. Whit^eJ^ 644 Rich V. Solari, 183. Rich V. Sowles, 031. Ixxxvi TABLE OF CASES. Tlie references are to pages. Rich V. Thornton, 63, 356. Richard v. Mooney, 4G3. Richards v. Allen, 265. Richards v. Bestor, 115, 557. Richards v. Craig, 520. Richards v. Daggett, 170, 222, 223. Richards v. Donaughey, 86. Richards v. Griggs, 292. Richards v. Stephenson, 371, 384. Richards v. Stower, 531. Richards v. Viccaro, 575. Richardson v. Adler, 501, 505, 545. Richardson v. Anderson, 296. Richardson v. Gurney, 260. Richardson v. Hall, 170. 221, 558. Richardson v. Hickman, 654. Richardson v. Lacey, 641. Richardson v. Leavitt, 195. Richardson v. Lester, 258. Richardson v. White, 864. Richardson v. Whiting, 259. Richmond v, Brookings, 245, Richmond v. Dreyfous, 440. Richter v. Trask, 651. Richter v. Wise, 88. Rick V. Waters, 272, Rickel V. Strelinger, 94. Rickert v. Snyder, 698. Ricketts v. Henderson, 448. Riddle v. Black, 473. Riddle v. Etting, 388. Riddle v. Miller, 257. Riddle v. Varnum, 197. Rider v. Sheldon, 404. Ridge V. Olmstead, 274. Ridgeney v. Coles, 254, 488. Ridgeway v. Farr, 228, 229. Ridgeway v. Smith, 47, 486. Ridley v. Ridley, 428, 432, 434. Ridlon V. Cressey, 640. Riggin V. Hilliard, 312. Riggs V. Murray, 48. Riley v. Hirst, 270, 291. Riley v. Hitzler, 495. Riley v. Nance, 610. Riley v. Nichols, 122. Riley v. Reuick Milling Co., 261. Rinchey v. Stryker, 170. Rindge v. Green, 283. Rindskoff v. Rogers, 559. Ring V. Vogel Paint Co., 47. Ringold V. Suiter, 263, 338. Riordan v. Britton, 206, 234, 249. Ripley v. Bank, 277, 303. Ripley v. Gear, 127, 128, 531. Ripley v. Severance, 304. Rippeu V. Schoen, 265, 385. Rischert v. Kunz, 508. Risewick v. Davis, 28, 29. Risley v. Brown, 527. Risley v. Welles, 261. 861. Risser v. Rathburn, 305. Riswick V. Lamon, 290. Rittenliouse v. Harman, 98. Ritter v. Insurance Co., 259, 323. Ritter v. Scanuell, 237. Rivard v. Gardner, 251. Rives v. Welborue, 406, 514. Rix V. Elliott, 276. Rix V. Silknitter, 188, 212, 220, 394. R. L. & M. Works v. Kelley, 180. Roach V. Brannon, 55, 128, 690. Road V. Sammons, 328. Robbins v. Alley, 29. Robbins v. Cooper, 184. Roberts v. Barry, 623. Roberts v. Burke, 63. Roberts v. Carpenter, 399, 400, 427, 433. Roberts v. Drinkard, 272. Roberts v. Dunn, 190, 285, 427, 433, 514, 524. Robertson v. Baker, 278. Robertson v. Beall, 290. Robertson v. Hoge, 228, 241. Robertson v. Forrest, 12, 620. Robertson v. Kinkhead, 244 Robertson v. Lemon, 698. Robertson v. Roberts, 359. Robertson v. Scales, 257. Robeson v. Carpenter, 647. Robinson v. Burtov, 89, 114. Robinson v. Campbell, 438. Robinson v. Ensign, 190, 285. Robinson v. Fitch, 269. Robinson v. Hall, 277. TABLE OF CASES. Ixxxvii Tlie references are to pages. Robinson v. Hesser, 80. Robinson v. Howard. 292. Robinson, Ex parte, 92, 99, 119, 121, 122. Robson T. Hunter, 32, 42, Robinson v. MansGeld, 170, 188, 189, 222, 223, 401. Robinson v. Mitchell, 301. Robinson v. National Bank, 3, 433, 486. Robinson v. National Bank of New- berne, 168. Robinson v. Swearingen, 501, Robinson v. Tevis, 276. Robinson v. Thornton, 610. Robinson v. Ward, 484. Robinson v. Williams, 268. Robinson v. Wilson, 504, 505. Robinson Notion Co. v. Ormsby, 51. Roby V. Labuzan, 263. Roch V. R L Ins. Co., 510. Roche V. R I. Ins. Ass'n, 333. Rochefeller v. Hoysradt, 476. Rochereau v. Guidry, 646. Rock T. Singmaster, 355. Rock Island Plow Co. v. Breese, 164. Rockwood V. Varnum, 410, 546, 554. Roddey v. Erwin, 94, 191. Rodega v. Perkerson, 168, 221, 223, 225, 434. Rodgers v. Bonner, 237. Rodman v. Musselman, 308, 316, 817. Rodolph V. Mayer, 456. Rodrigues v. Trevino, 371, 536, 559. Roe V. Holbert, 64. Roe V. Thomas, 682. Roelfson v. Hatch, 88, 433, 443. Roeller v. Ames, 316. Rogers v. Abbott. 565, 580. Rogers v. Arnold, 72. Rogers v. Birdsall, 129. Rogers v. Bonner, 205, 232, 543. Rogers v. Burbridge, 141, 470, 622. Rogers v. Cooper, 113, 115. Rogers v. Dill, 442. Rogers v. Ellis, 105. Rogers v. Fairfield, 213. Rogers v. Gilmore, 213. Rogers v. Jenkins, 423. Rogers v. Nichols, 183. Rogers v. Odell, 060. Rogers v. Pitman, 690. Rogers Locomotive Works v. Kelly, 265. Rohan v, Latimore, 43. Rohrbough v. Lepold, 137. Rollins V. Allison, 498, 500. Rollins V. Clement, 254. Rollo V. Andes Ins. Co., 308. Romagosa v. Nodal, 371, 536. Rome R. Co. v. Richmond, etc., R. R Co., 636. Ronaldson v. Hamilton, 105. Ron an t. Dewes, 365, 370. Ronkendorff v. Taylor's Lessee, 251. Rood V. Scott, 400, 401. Rooker v. Daniels, 654. Roos V. Lewyn, 42, 589. Roosevelt v. Kellogg, 28. Root V. Columbus, etc., R Co., 394. Root V. Davis, 269. Root V. Monroe, 476. Root V. Railroad Co., 210. Roquest v. Steamer, 363, 384. Rose V. Himely, 448. Rose V. Whaley, 479, 623. Rosenberg v, Claflin Co., 116, 460. Rosenberg v. Moore, 55. Rosenbury v. Angell, 170. Rosenfield v. Case, 569, 667. Rosenfield v. Howard, 52. Rosenheim v. Fifield, 118. Rosenthal v. Wahre, 57. Rosewater v. Clothing Co., 556. Ross V. Allen, 314, Ross v. Austin, 634 Ross V. Clark, 32, 41, 285, 289, 313. Ross V, Duval, 438. Ross V, Edwards, 187. Ross V. Jenkins, 109, Ross V. McKinney, 272. Ross T. Malone, 693. Ross V. Philbrick, 394. Ross V. Pitts, 644, Ross V. Ross, 330. Ross V. Steen, 90, 98. Ixxxviii TABLE OF CASES. Tlie references are to pages. Rossiter v. Paper Co., 076. Roswald V. Hobbie. 520, 688. Roth V. Hotard, 292, 294. Rothchild v. Moone}-, 105, 471. Rothermel v. Marr, 170, 175. Roundlett v. Jordan, 199. Roimdstone v. Holt, 171, 188, 536. RouUiac V. Rigby, 148. Rourke v. Bullens, 197. Rouss T. Wright, 88, 89. Rowan v. Lamb, 207, 327. Rowe V. Kellogg, 468. Rowell V. Klein, 353. Rowell V. Powell, 494. Rowland v. Coyne, 461. Rowland v. Plummer, 384, 560. Rowlett V. Lane, 623. Rowley v. Berrian, 4, 424, 426, 433, 443, 464, 527, 534, 606. Rowley v. Jewett, 527. Rowley v. Kemp, 534. Rowley v. Rice, 398. Roy V. Union Co., 49, 461. Roy V. Tim, 372. Royer v. Fleming, 370. Rozells V. Rhodes, 267, 507. Ruchelman v. Skinner, 521. Rudd V. Payne, 298. Rudolph V. McDonald, 111, 540, 651. Rudolph V. McDowell, 483. Ruff V. Ruff, 650. Rugg V. Minett, 197. Ruhl V. Rogers, 79. RuUman v. Hulse, 446. Rumbough v. White, 85. Rumsey v. Nickerson, 179. Rundlet v. Jordan, 271. Runlett V. Bell, 395. Runnells v. Kaylor, 580. Runyan v. McClellan, 618. Runyan v. Moi'gan, 73. Ruppert V. Haug, 82, 90, 125, 465, 649, 541. Ruse V. Bromberg, 329. Rushtou V. Rowe, 633. Russ V. Butterfiold, 236. Russell V. Clingman, 272. Russell V. Con vers, 301. Russell V. Deane, 501. Russell V. Freedmen's Savings Bank, 357. Russell V. Gregory, 89, 434. Russell V. Lawton, 547. Russell V. Lewis, 260. Russell V. Lowth, 496. Russell V. Mayor, 394, 403. Russell V. Men of Devon, 312. Russell V. O'Brien, 197. Russell V. Tunno, 298. Russell V. Work, 117. Ruthe V. Green Bay & Minn. R R. Co., 88, 89, 125. Rutherford v. Fullerton, 369. Rutherford v. Fulton, 652. Ruthven v. Beckwith, 39, 487, 682. Rutledge v. Stribling, 84, 101, 150. Rutter V. Boyd, 383. Ryall V. Marx, 689. Ryan v. Burkham, 353. Ryan v. Campbell, 214. Ryan v. Goldf rank. 515. Ryan v. Heenan, 614. Ryan v. Maxey, 614. .Ryan v. Peacock, 396. Ryan v. Wessels, 504. Ryan v. AVessons, 504. Ryan Drug Co. v. Peacock, 614. Ryder v. Flanders, 254, 428. Ryhiner v. Ruegger, 470. Ryland v. Green, 7. Ryon V. W^yukoop, 276. s. Sabin v. Austin, 165. Sabin v. Cooper, 277, Sackett v. McCord, 693. Saco V. Hopkinton, 160, 479. Saddler v. Hudson, 440. Saddler v. Prairie Lodge, 377, 626. Saddlery v. Urner, 52. Saddlery Co. v. Schoelkopf, 517. Saddles vene v. Arms, 75. Sadler v. Tatte, 237. Saffaracus v. Bennett, 252. Saffarans v. Terry, 253. TABLK OF CAPES. Ixxxix Tlie references are to pcfjes. Safford v. National Bank, 266. Sagely v. Livermore, 395. Sale V. French, 607. Sailer v. Insurance Co. of North America, 381. Salmon v. Mills, 117, 467, 483. Salomon v. Smith, 487. Sam V. Hochstadler, 459. Sampson v. Bryce, 309. Sampson v. Hyde, 364. Sams V. Armstrong, 210. Samuel v. Agnew, 257, 667, Samuel v. Brite, 134. Sanborn v. Royce, 183, 659. Sanborn v. Ward, 509. Sandblast Co. v. Parsons, 273. Sandburg v. Papineau, 646. Sandel v. George, 24, 29, 36. Sanders v. Canett, 122. Sanders v. Hamflton, 76, 590. Sanders v. Hughes, 128, 688. Sanders v. Page, 556. Sanderson v. Edwards, 213, 395, 427. Sandheger v. Hosey, 106. Sands v. Lynham, 592, 595. San ford v. Bliss, 625. Sanford v. Boring, 213, 427, 434. Sanford v. Pond, 240. Sanford v. Wheeler, 563. Sangamon, etc., Co. v. Richardson, 329. Sanger v. Flow, 569. Sanger v. Trammell, 206, 239, 544. Sangster v. Butt, 647. Sangster v. Commonwealth, 170, 222, 225. Sannes v. Ross, 621. Sannoner v. Jacobson, 61, 99, 117. San Roman v. Watson, 143. Santo V. State, 669. Sappington v. Oeschli, 495, 578. Sargeant v. Andrews, 645. Sargeant v. Hembold, 75. Sargent v. Carr, 188. Sargent v. Fuller, 685. Sarpy v. New Orleans, 698. Sartin v. Wier, 519. Sauer v. Behr, 568. Sauer v. Nevadaville, 257, 271, 312, 317. Saul V. His Creditors, 195. Saulter v. Butler, 477. Saunders v. Bartlett, 619. Saunders v. Cavett, 16, 475. Saunders v. Columbus Life Ins. Co., 10. 206, 207, 227, 228. Saunders v. McLean, .549. Saunders v. Robinson, 500. Savage v. Aiken, 602. Savage v. Davis, 501. Savery v. Browning, 49.5. Sawyer v. Arnold, 92, 125. Sawyer v. Curtis, 656. Sawyer v. Merrill, 225. Sawyer v. Sawyer, 299. Sawyer v. Thompson, 282. Sayward v. Drew, 272, 273. Scales V. Hotel Co., 258. Scales V. Southern Hotel, 274 Scales V. Swan, 364. Scamahorn v. Scott, 356, 357. Scanlon v. O'Brien, 5, 492, 521, 529. Scarborough v. Malono, 10, 345, 514, 517, 656. Schackletfs Appeal, 10. SchaeflPer v. Marienthal, 396. Schafer v. Vizena, 366. Schall V. Bly, 488. Schaller v. Nan Warmer, 62. Scharff v. Chaffe, 67. Schatgill V. Bolton. 618. Scheffer v. Boy. 262. Scheib v. Baldwin, 1.54, 215. Schell V. Leland, 122. Schenck v. GritBn, 601. Schepler v. Garriscan, 188. Scherr v. Little, 177. Scheuler v. Simmons, 30.5. Schier v. Dank ward t, 505. Schilling v. Deane, 73, 540. Schindelholz v. CuUem, 407, 510. Schlater v. Broaddus, 492. Schlaeter v. Raymond, 299, 644. Schlatter v. Hunt, 488. Schliuder v. Smith, 351. Schlinter v. Jacobs, 559, 561. xc TABLE OF CASES. The references are to pages. Schmick v. Noel, 696. Schmlcllapp v. Currie, 55. Schmicllapp v. La Confiance Ins. Co., 323. Schmidt v, Browu, 518. Schmidt v. Bickenbach, 675. Schmidt v. Colley, 539, Schneider v. Ferguson, 682, 690. Schneider v. McFarland, 428. Schneider v. Roe, 64. Schneider v. Sanson, 688. Schneider v. Sears. 394. Schneider v. Wallingford, 514, 520. Schnell v. City of Chicago, 253, 432, 443, 445. Schofield V. Sanders, 268. Schoolcraft v. Thompson, 585. School District v. Taylor, 579. School District, etc. v. Gage, 314. Schooler v. Alstrom, 6''5. Schoolher v. Hutchins, 299. Schooner Bolina, 250, 428. Schoppenhast v, Bollman, 466, 569, 644. Schoregge v. Gordon, 140. Schrimpf v. McArdle, 132, 137. Schroeder, Matter of, 32, 40. Schrugham v. Carter, 183. Schuberv. Simmons, 384. Schuerman v. Foster, 268, 369. Schulenberg v. Farwell, 69. Schuler v. Israel, 269, 368, 370. Schultz V. Insurance Co., 62. Schuman v. Davis, 211. Schunk V. Moline, 73. Schuster v. Rader, 150. Schuyler v. Sylvester, 513, 695. Schwab V. Mabley, 460. Schwabacher v. Kane. 195. Schwartz v. Claflin, 570, 622. Schwartz v. Cowell, 207. Schwartz v. Davis, 687. Schwein v. Sims, 519. Schwinger v. Hickock, 421, 592. Scofield V. Bell, 188. Scofield V. Bradlee, 288, 412. Scoonmaker v. Spencer, 119. Scorpion S. M. Co. v. Marsano, 253. S. C. Herbst Imp. Co. v. Burnham, 460. S. C. R. R. Co. V. McDonald, 24 S. C. R. R. Co. V. People's Savings In- stitution, 336. Scott V. Brown, 180. Scott V. Davis, 213, 427, 433. Scott V. Doneghy, 62, 70. Scott V. Hawkins, 377. Scott V. Macy, 148. Scott V. Manchester Printworks, 205. Scott V. McMillen, 78. Scott V. Moll, 685. Scott V. Morgan, 43. Scott V. Ray, 364. Scott V. Shearman, 250, 428. Scramragel v. Whitehurst, 197. Screws v. Watson, 173, 178. Scrivener v. Dietz, 117. Scruggs V. Blair, 30. Scrugham v. Caster, 618. Scurlock V. Gulf, 346. Seaman v. Hicks, 595. Seamon v. Bank, 373. Searcy v. Platte County, 475. Searing v. Benton. 344. S ear m ell v. Rice, 586. Sears v. Gearn, 186. Sears v. Hanks, 497. Sears v. Thompson, 390. Seattle Crockery Co. v. Haley, 682. Seaver v. Fitzgerald, 60. Seaving v. Brinkerhoff, 48. Seawelt v. Bank, 165. Seay v. Greenwood, 696. Sebor v. Armstrong, 364. Seckendorf v. Ketch um, 52. Secor V. Witter, 280, 281, 392. Security Loan Ass'n v. Weems, 382. Seekins v. Goodale, 169. Seeley v. Brown, 114, 481. Seeley v. Missouri, etc., R. Co., 70, 466. Seeligson v. Rigmaiden, 159. Seely v. Board of Education, 314 Seers v. Blakesly, 479. Segog V. Engle, 356, 654 Seibert v. Switzer, 68, 69, 619. Seibs V. Englehart, 273. TABLE OF CASES. XCl Tlie references are to pages. Seipo's Estate, In re, 2G9. Self V. Kirkhmd, 373. Selheimer v. Elder, 334. Seligson v. Collins, 501. Sellick V. Truesdall, 93. Selma, etc., R. Co. v. Tyson, 284. Selman v. Orr, 353, 355. Selz V. Atkinson Bank, 636. Selz V. Beklen, 486. Senimes v. Patterson, 346. Semmes v. United States, 588. Senecal v. Smith, 128. Senior v. Brojjan, 637. Sercomb v. Catlin, 407. Sessions v. Stevens, 647. Settlemier t. Sullivan, 603. Seville v. Wagner, 485. Sevvall V. Mattoon, 395. Seward v. Heflin, 373. 647, 65a Sewell V. Savage, 11, 553. Sexey v. Adkinson, 170. Sexton V. Amos, 363, 371. Sexton V. Rhames, 258, 364. Seym an e v. Gresham, 218. Seymour v. Kramer, 261. Seymour v. Newton, 188. Seymour v. School District, 314. Seymour v. Seymour, 385. Shaddock v. Marsh, 111, 484, 485. Shahan v. Tall man, 607. Shafer Iron Co. v. Circuit Judge, 360. Shafifer v. Mason, 75. Shaffer v. Sand wall, 62, 70. Shakmau v. Schleuter, 306. Shannon v. Blum, 180, 259. Sharkey v. Williams, 432, 483. Sharp V. Baird, 207. 242. Sharp V. Clark, 287. Sharpe v. Hunter, 677. Sharpe v. ]\Iorgan, 522. Sharpless v. Zeigler, 5, 94. Sharts v. Await, 569. Shattuck v. Smith, 298. Shaughnessy v. Fogg, 361. Shaughnessy v. Lininger, etc., Co., 180. Shaver v. White, 618. Shaw V. Bunker, 363, 366. Shaw V. Holmes, 174. Shaw V. Laughton, 394 Shaw V. Lawrence, 148. Shaw V. O'Brion, 401. Shaw V. Beckett, 373. Shea V. Robinson, 548. Shealy v. Toole, 397, 643. Shearer v. Anderson, 15, 253. Shearer v. Handy, 364 Shedd V. McConnell, 465, Sheedy v. Second National Bank, 16, 275. 276, 368, 560. Sheehan v. Marston & Trustee, 391. Sheets v. Culver, 278. Sheetz v. Hobensack, 263. Sheffield v. Barber, 277. Sheffield v. Gay, 95. Sheirburn v. Cordova, 438. Shelby v. Bacon, 303. Sheldon v. Blanvelt, 75. Sheldon v. Hinton, 384, 385. Sheldon v. Kivett, 117. Sheldon v. Litchfield County, 813. Sheldon v. Newton, 441. Sheldon v. Simonds, 369. Sheldon v. Stewart, 488. Sheldon v. Wright, 250, 253, 254, 428. Shellabarger v. Moltin, 50. Shellhamer v. Jones, 189. Shelly V. Smith, 508. Shelvin v. Whelen, 144 Shepard v. Shepard, 563. Shepherd v. Bridenstine, 260, 294 Shepherd v. Hall. 396. Shepherd v. Murrill, 502. Sheppard v. Collins, 128, 144, 515. Sheppard v. County, 316. Sheppard v. Powers, 347. Sherill v. Beach, 40, 46, 53, 114, 115. Sherman v. Davis, 93. Sherman v. Fitch, 577. Shermers Appeal, 7, Sherrible v, ChaBfee, 499. Sherrod v. Davis, 401. Sherry v. Dean, 428. Sherry v. Schuyler, 170. Sherwood v. Reade, 85. j Shetler v. Thomas, 569, 644, 654 XCll TABLE OF CASES. Tlie references are to pages. Shiel V. Patrick, 77. Shield V. Dothard, 115. Shinn v. Holmes, 7. Shipman v. Woodbury, 27, 34, 54. Shipp V. Davis, 105. Shirley v. Byrnes, 4, 5, 43, 436, 522. Shirley v. Owners, 16. Shirley's Adm'r v. Jones, 594, 595. Shivers v. Wilson, 360. Shockley v. Bullock, 86, 121. Sliockley v. Davis, 135, 478. Shoe Co. V. Harris, 688. Shoe Co. V. Ladd, 556. Shoe & Leather Bank v. Mechanics' Bank, 468. Shoreman v. Eakin, 496, Shorten v. Drake, 616. Shove v. Dow, 545, 546, 548. Shove V. Farvvell, 52. Showman v. Lee, 568. Shrewsbury v. Pearson, 484. Sh river v. Harbaugb, 175. Sh river's Lessee v. Lynn, 441, 442, 448, 450. Shroyer v. Nickell, 592. Shroyer v. Richmond, 441. Shufelt V. Cramer, 304, 638. Shuff V. Morgan, 221. Shugart v. Orr, 36, 40. Shuler v. Bryson, 279. Slniltz v. Morrison, 696. Shumway v. Putter, 197, 285. Shuster v. Finan, 461. Shuttlesworth v. Noyes, 203. Sibley v. Brown, 222. Sibley v. Fernie, 186. Sibley v. Leffiugwell, 268, 563. Sibley v. Storey, 399, 401. Sibley v. Waffle, 254, 428. Sick man v. Abernethy, 257, 305. Sick man v. Lapsley, 634. Sievers v. Wheel, 615. Sievers v. Wood burn, etc., 373. Sigourney v. Eton, 554. Sigourney v. Larned, 578, 610. Silsby V. Aldridge, 209. Silver Bow, etc., Co. v. Lowry, 230. Silverwood v. Bellar, 265. Sime's Estate, 293. Simmons v. Austin, 267. Simmons v. Mo. Pac. R. Co., 252, 376. Simmons v. Woods, 391, 469. Simon v. Ash, 268, 386. Simon v. Association ,45. Simon v. Stetter, 83, 129. Simonds v. Harris, 289. Simonds v. Pearce, 171, 555. Simons v. Jacobs, 32, 41, 483. Sinipkins v. Malatt, 98. Simpson v. Bibber, 299. Simpson v. Burch, 59, 160. Simpson v. Haight, 94, Simpson v. Harry, 259. Simpson v. Holt, 94. Simpson v. Knight, 138, Simpson v. McCarthy, 80, 87, 90, 101. Simpson v. Reynolds, 329. Sims v. Eslava, 512. Sims V. Goettle, 540. Sims V. Jacobson, 467. Sinclair v. Tarbox, 395. Singer v, Lidwinosky, 43. Singer v. Townsend, 377, Singer Manuf. Co. v. Fleming, 511. Singer Manuf. Co. v. Mason, 490. Singleton v, Wofford, 83. Sitzman v. Pacquette, 354, 438. Skelly v. Westminster School District, 314. Skill V. Stuart, 86, 92, 93, 134. Skillman v. Bethany, 188, Skinner v. Stuart, 396. Skinnion v. Kelley, 119. Skipper v. Reeves, 577, 687, Skoppenhast v. Boll man, 654. Skowhegan Bank v. Farrar, 57, 199. Slark V. Broom, 473. Slatter v. Tiernan, 634. Slatton V. Johnson, 33. Slaughter v. Bevans, 120. Sledge V. Lee, 678. Sledge V. McLaren, 138, 693. Sleet V, Williams, 109, 125. Sloan V. Bangs, 54. Sloan V, Forse, 252. Sloan V, Langert, 136. TABLE OF CASES. XCIU Tlie references are t''- vages. Sloan V. IMcCracken, 676, 691, 692. Sloan V. Mitchell, 122. Slocomb V. Robert. 516. Slosson V. Ferguson, 522. Small V. Hutchins, 399. Smalley v. Miller. 256, 270. Smart v. Batchelder, 197, 395. Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm Sm ley V. Samson, 441. th V. Acker, 50. th T. Ainscow, 654. th V. Arnold, 41. th V. Baker, 103. th V. Bank, 330. th V. B. C. & M. Ry. Co., 234. th V. Barclay, 374, 556. th V. Barker, 643. th V. Bean, 580. th V. Boyer, 42, 50. th V. Blatchford, 653. th V. Bradstreet, 10, 505. th V. Bruner, 381. th V. Gaboon, 272. th V. Canfield, 275, 389, 582. th V. Chadwick, 497, 499, 501, 505. th V. Chapman, 271, 377. th V. Chicago, etc., R. R. Co., 363, 507. th V. Chilton, 354. th V. Church, 395. th V. Cicotte, 175. th V. Clarke, 371. th V. Clinton Bridge Co., 12, 543. th V. Conrad, 345, 347. th V. Craft, 49. th V. Crooker, 516. th V. Cunningham, 211. th V. Curtiss, 238. th V. Cutchen, 448, 451. th V. Davis, 88, 121, 540. th V. Derse, 466, 468. th V. Dickson, 339, 392, 506. th V. Dixon, 648. th V. Downey, 329, 330. th V. Eakin, 128. th V. Easton, 16, 47, 433, 485. th V. Eaton, 332. tli V. Elliott, 466. th V. Engle, 441. Smith V. Fargo, 515, 523. Smith V. Finlen, 289, 312. Smith V. Flanders, 634. Smith V. Foster, 106, 580. Smith V. German Bank, 634 Smith V. Gottinger, 540, 543. Smith V, Gown, 355. Smith V. Griffin, 611. Smith T. Hackley, 162, 479. Smith V. Hill, 345. Smith V. Holland, 272. Smith V. Ihling, 162. Smith V. Johnston, 507, 686. Smith V. Kaufman, 659. Smith V. Kennebec, etc., R. Co., 199. Smith Y. Leavitts, 240. Smith V. Lind, 543. Smith V. Luce, 88, 92, 99, 121. Smith V. McCutchen, 360, 422, 432. Smith V. Milk Co., 75. Smith V. Moore, 16. Smith V, Mulhern, 447. Smith Y. Orser, 213, 245. Smith Y. Osgood, 174, 176. Smith Y. Pearce, 478. Smith Y. Peox^le's Bank, 13. Smith Y. Pickett, 268. Smith V. Posey, 260. Smith V. Railroad, 624. Smith V. Railroad Co., 453. Smith Y. Reese River S. & M. Co., 594. Smith V. Rice, 442. Smith V. Richards, 598. Smith V. Robinson, 397. Smith V. Sanborn, 222. Smith V. Scott, 611,624. Smith V. Sims, 557. Smith v. Smith, 72, 566. Smith v. Sprague, 698. Smith V. State, 309. Smith V. Stearns, 372. Smith V. Steele, 496. Smith V. Sterritt, 302. Smith v. Story. 12, 27, 33, 34, 128, 369, 675, 677, 691. Smith Y. Victoria, 101, Smith V. Wells, 592, 594. xciv TABLE OF CASES. The references are to pages. Smith V. Woolsey, 316. Smith V, Yargo, 151. Smith's Appeal, 294. Smith's Case. 184. Smith, Matter of, 184. Smith & Co. V. Zuchee, 567. Smokey v. Peters, 178, 186. Smoot V. Eslava, 653. Smoot V, Hart, 317. Smoot V. State. 273. Smyth V, Anderson, 393. Snell V. Insm-ance Co., 594. Snelliug v. Bryce, 130. Snook V. Snetzer, 508, 509. Snow V. Sheldon, 187. Snyder v. Brune, 500. Societe, etc. v. Miiliken, 106. Solinsky v. Bank, 53, 218. Solomon v. Smith, 193. Somers v. Losey, 200. Somerville v. Somervllle, 28. Somes y. Brewer, 579. Sommer v. Gilmore, 383. Sorrels v. Self, 496. Souberain v. Renaux, 90. Soule V. Chase, 250, 252. Soule V. Ice Co., 373. Southard v. Benner, 363. South Bend Bank v. Gandy, 266, South Bend Iron Works v. Cottrell, 259. South Carolina R. Co. v. McDonald, 318. Southerland v. Burrill, 363. Southern Bank v. McDonald, 546. Southern Md. R. Co. v. Moyer, 29S. Spain V. Hamilton's Adm'r, 302. Spalding v. Imlay, 312. Sparhawk v. Cloon, 265. Sparkman v. Swift, 178. Sparks v. Zebley, 54. Sparp V. Baird, 221. Spaulding v. Kennedy, 352. Spaulding v. Simms, 35, 36, 470. Spaulding v. Wallet, 12, 675. Speak V. Kinsey, 277. Spear v. Hubbard, 467. Spear v. King, 140, 477. Spear v. Rood, 267. Spears v. Chapman, 263, 272, 385. Spears v. Robinson, 556. Speed V. Brown, 317. Speelman v. Chaffee, 154, 514, 520. Speise v. McCoy, 273. Spelmau v. Aldrich, 507. Spencer v. Blaisdell, 199, 288, 495. Spencer v. Bloom, 94. Spencer v. Deagle, 52. Spencer v. Moran, 385. Spencer v. Rogers Locomotive Works, 470. Spencer v. School District, 313, 314. Spengler v. Davy, 691, 692. Spengler v. Kaufman, 509. Spengler v. O'Shea, 234. Sperry v. Ethridge, 532. Spettigue v. Hutton, 143, 462. Speyer v. Ihmels, 540, 543. Spicer v. Spicer, 643. Spiegelberg v. Sullivan, 16, 150, 245, 433. Spiers v. Halstead, 122. Spillman v. Williams, 252, 423. Spitz V. Mohr, 159. Spitz V. Tripp, 374. Splahn V. Gillespie, 353. Spooner v. Rowland, 649. Sprague v. Clark, 353. Sprague v. Parsons, 686, 693. Sprague v. Steamboat Nav. Co., 328. Spring V. Ayer, 388. Spring V. Insurance Co., 55. Springer v. Kleinsorge, 557. Sprinz v. Vaunuchi, 363. Sproul V. McCoy, 511. Sproule V. McNulty, 300. Spruill V. Trader, 653. Squair v. Shea, 284. Squire v. Mudgett, 494. St. Amant v. Beixcedon, 119, 484. St. Clair v. Cox, 3, 152, 332. St. George v. O'Connell, 212. St. Joseph Township v. Rogers, 437. St. Louis V. Regeufuss, 307. St. Louis, etc. v, Cronin. 77, 641. St. Louis, etc., R. Co. v. Lamed, 324 TABLE OF CASES. XC^ 27*6 references are to pages. St Louis, etc., R Co. v. Richter, 263, 640. St Louis Dairy Co. v. Sauer, 177. St Louis P. Ins. Co. v. Cohen, 24, 377. St Louis Tj'pe Foundry v. Printing Co., 57. St Louis Wire Mills v. Lindheim, 43. Staats V. Bristow, 182. Staats V. Executors of Ten Eyck, 698. Stack V. Bare, 509. Stackpole v. Newman, 363. Stacks V. Curd, 212. Stacy V. Stichton, 105, 475. Stadder v, Jacobs, 692. Stadler v. Moors, 304, 638. Stadler v. Parmlee, 99. Stafford v. Elliott 503. Staggers v. Washington, 115, 117. Stahl V. Webster, 635. Staley, etc. v. Wallace, 62. Stamford Bank v. Ferris, 314 Stamper v. Hibbs, 48. Stancel v. Purycar, 3G2. Standard Wagon Co, v. Lowry, 627. Stanhope v. SwafFord, 57. Stauiels v. Raymond, 50, 410, 494 Stanley v. Arnow, 456, 457. Stanley v. Ogden, 75. Stanley v. Perry, 498, Stanley v. Stanley, 3. Stansell v, Fleming, 183, 536, 573, Stanton v, Boschert 200, 397. Stanton v. Heai'd, 615. Staphouse v. County of New Haven, 312. Staple V. Bird, 199. Staples V, Fairchild, 86, 119. Staples V, Staples, 287, 291. Stapleton v. Orr. 532, 605. Starbuck v. Murray, 449. Stark V. Brown, 428. Starke v. Marshall, 87. Starke v. Scott 37. Starks v. Curd, 619. Starr v. Lyon, 137, 148, 477, 678. Starr v. Mayer, 63, Starr v. Moore, 395, Starry v, Korab. 383, State V, Baldwin. 395, 65a State V. Barker, 210, State V. Beldsmeyer. 136, 675, 685. State V. Berniudez, 506. State V. Berry, 144 444 State V. Bick, 637. State V. Bonham, 190. State V. Boothe, 285. State V. Boston, etc., R. R Co., 284 State V. Bowen, 639, 661. State V. Brownlee, 300. State V, Carson, 499. State V. Chamberlin, 129, 132. State V, Clay Co., 177, State V, Conover, 661. State V, Cornelius. 16, 213, 427, 434 State V. Court of Mason Co., 83. State V. Court of Pierce Co., 83. State V. Crowder, 683. State V. Depsedor, 556. State V. Dittmar, 509. State V, Duncan, 346, 352, 549. State V, Eberly, 312. State V, Eddy, 201, 249, 612. State V. Ellis, 190. State V, Ely, 444 State V. Fitzpatrick, 661, State V. Fontinberry, 138, State V, Foster, 169, State V. Gachenheimer, 444 State V. Gage, 691. State V, Gaillard, 594 State V. Hamilton, 161, State V. Harrington, 498, 543, 544 546, 656, State V, Heckert 136, State V. Immer, 637, State V, Jennings, 655, 661. State V. Johnson, 307, State V. Judge of Court, 414 State V. Kevin, 699, State V. Krumpus, 502, State V. Kurtzeborn, 504. State V, Long, 661, State V, ]\ranly, 173, 499, 501, 505, 609, 611. State V, McBride, 77, XCVl TABLE OF CASES. The references are to x>ages. State V. McGIothlin, 527. State V. McHale. 697. State V. McKeon, 683, 695. State V. Metzger, 442. State V, Miller, 611. State V. Moore, 170, 225. State V. Morris, 39, 95. State V. Netherton, 265. State V. Pace, 62. State V. Penner, 242. State V. Penny, 7. State V. Quick, 485. State V. Ricliardson, 414. State V. Sandford, 495, 502. State V. Schilling. 638. State V. Shobe, 699. State V. Spikes, 556. State V. Springer, 681. State V. Superior Court, 446. State V. Sutterfield, 437. State V. Thomas, 684, 697. State V. Thompson, 132, 177. State V. Tiedeman, 314 State V. Wheeler, 669, State V. Williams, 62, 676. State V. Wilson, 502. State V. Younts, 128. State ex rel. v. Court, 192, 574. State ex rel. Kahoon v. Krurapus, 499. State of Lousiana v. Mayor, 73. State of Rhode Island v. State of Mass., 441. State Bank v. Hilton, 678. State Bank v. Martin, 217. State Bank of Fenton v. Whittle, 488. State N. Bank v. Boatner, 348, 360. State Sav. Bank v. Hosmer, 263, 345, 347. Statt T. Evans, 76. Statts V. Bristow, 245. Staunton v. Holmes, 285, 312. Steadham v. Parrish, 71, 77. Steamboat Clarion v. Moran, 158. Steamboat Farmer v. McCraw, 470. Steamboat Napoleon v. Etter, 135. Steamboat Orleans, The, v. Phoebus, 669. Steamboat Raritan v. Smith, 668. Stearns v. Dean. 188, 196. Stebbins v. Anthony, 71. Stebbins v. Fish, 377. Stedmau v. Vickery, 260. Steel V. Goodwyn, 472. Steel V. Lyford, 494. Steel V. Raphael, 96, 473. Steel V. Smith, 424. Steele v. Dodd, 45. Steele v. Leouori, 504. Steele v. Thompson, 637. Steele v. Tutwiler, 115. Steen v. Harris, 189. Steen v. Ross, 137, 682. Steer v. Hoagland, 78. Steere v. Vanderberg, 252, 418. Steers v. Morgan, 621. Steffens v. Wanbosker, 544, 553. Steib V. Whitehead, 265. Stein V. Bennett, 7, 504. Stein V. Munch, 50. Stein V. Seaton, 275. Steiner v. Central R. R. Co., 320. Steinhart v. Deuster, 50. Steinhart v, Leman, 136, 676. Steinwender v. Creath, 51. Stephen v. Thayer, 12. Stephens v. Adams, 189. Stephens v. Allmen, 143. Stephens v. Greene County Iron Co., 492. Stephens v. Oppenheimer, 575. Stephenson v. Sloan, 45. Stephenson v. Walden, 188. Sterling City Mining Co. v. Cock, 678. Sterns Paper Co. v. Johnson, 473. Sterrett v. Howarth, 235. Sterrett v. Miles, 267. Stetson V. Cleneay, 279. Steuart v. West, 273. Steuben Co. Bank v. Alberger, 82, 98, 465, 469, 484, 541. Stevens v. Able, 12, 672. Stevens v. Bell, 265. Stevens v. Briggs, 180. Stevens v. Brown, 511. Stevens v. Carson, 502. TABLE OF CASES. XCVU TJie references are to pages. Stevens v. Dillman, 281. Stevens v. Gwathmey, 381. Stevens v. Kirk, 261. Stevens v. Lunt, 373. Stevens v. Middleton, 94. Stevens v. Perry, 201, 276. Stevens v. Phoenix Ins. Co., 331. Stevens v. Pugh, 298. Stevens v. Stevens, 303. Stevens v. Wolf, 174. Stevens v. Wrisley, 567. Stevenson v. Duulap, 450. Stevenson v. Jackson, 660. Stevenson v. McLean, 169. Stevenson v. Palmer, 397, 514, 519, 520, 670. Stevenson v. Prather, 12. Stevenson v. Robbins, 129, 137, 670, 678, 689. Stevens Point Bank v. Rosenfield, 72. Stewart v. Anderson, 64 Stewart v. Board, etc., 250, 428. Stewart v. Cabanne. 51, 106, 109. Stewart v. Clark, 80. Stewart v. Cole, 47. Stewart v. Dobbs, 528. Stewart v. Heidenbeimer, 111. Stewart v. Katz. 97, 100, 138. Stewart v. Marquis of Bute, 199. Stewart v. Martin, 394. Stewart v. Mitchell, 85. Stewart v. Smith, 5G2. Stewart v. Sonneborn, 676. Stewart v. Sticher, 495. ckley V. Little, 624. ckney v. Davis, 221. enle v. Bell, 60. flf V. Fisher, 56, 70. flf V. Stevens, 70. les V. Davis, 12, 395, 412. les V. Hill, 178. 11 V. Focke, 237. lie V. Layton, 645. llings V. Young, 275. llman v. Isham, 286, 312. Iwell V. Grocery Co., 194. mson V. Maiden, 645. mson V. Ward, 899. G Stinson v. Caswell, 259, 274. Stinson v. Clark, 197. Stinton v. Steamboat Roberts, 669, Stix V. Keith, 577, 695. Stockberger v. Lindsey, 636. Stockett V. Nicholson. 442. Stockley v. Wadman, 11, 171. Stockton V. Bishop, 66. Stockton V. Douney, 6, 213, 227. Stockton V. Hall. 372. Stock well V. McCracken, 645. Stodart v. McMahan, 227. Stoddart v. 3Ic:\Iahon. 207, 228, 229. Stoiber v. Thudium, 150. Stokes V. Potter, 107. Stoller V. Coates, 194. Stonach v. Glessner, 586. Stone V. Boone, 473, 485. Stone V. Darrell, 504. Stone V. Dean. 199, 278. Stone V. Hawkins, 238. Stone V. Insurance Co.. 321. Stone V. Magruder, 360. Stone V. Miller, 238. Stone V. Myers, 3. Stone V. Swift, 692. Storm V. Adams, 286. Storm V. Cotzliausen, 388. Story V. Elliot. 162. Story V. Kemp, 374. Stouflfer V. Niple, 38. Stoughton V. Pasco, 563. Stout V. Folger, 83. Stout V. Leonard, 25, 28. Stout V. Stoppel, 190. Stout V. Woods, 648. Stoutenburgh v. Vandenburgh, 186. Stowe V. Buttrick, 400, 402. Stowe V. Meserve, 498. Stowe V. Phinney, 323. Strasburger v. Bachrach, 57. Stratton v. Brigham, 27, 34, 54 Stratton v. Ham, 293. Straub v. Wooten, 680. Straus V. Chicago, etc., Co., 324 Straus V. Chicago Glycerine Co., 421. Straus V. Wessel, 198. Strauss v. Abraham, 57, 104, 485. XCVIU TABLE OF CASES. The references are to j^ages. Strauss v. Cooch, 483. Strauss v. Dundon, 698. Strauss v. Railroad Co., 272. Straw V. Jeuks, 191. Street v. Smith, 335. Streissguth v. Reigelman, 91, 640. Strieker v. Kelley, 445. Strickland v. Martin, 218. Stringer v. Dean, 81, 101, 471. Striugfield v. Fields, 47. Striplin v. Cooper, 545. Strode v. Patton, 592, 594. Stroner v. Prokop. 239. Strong V. Catlins, 165. Strong V. Hollon, 377, 387, 635, 636. Strong V. Lake Weir, etc., Ass'n, 134. Strong's Ex'rs v. Bass, 388. Strouse v. Becker, 501. Strout V. Bradbury, 190, 286, 395. Struber v. Klein, 384. Struthers v. McDowell, 113. Stiiart V. Lacoume, 519, 520. Stubblefield v. Hagerty, 303. Stuckey v. McKibbon, 307, 495. Studebaker, etc., Co. v. Santo Tomas Coal Co., 392. Stuntz V. Tanner, 246. Sturges V. Kendall, 624. Sturgis V. Knapp, 130. Sturtevant v. Ballard, 43. Sturtevant v. Robinson, 649. Sublett V. Wood, 17, 485. Succession of Durand, 31. Sueterlee v. Sir, 91. Suksdorflf v. Bigham, 64. Sullivan v. Blackwell, 442. Sullivan v. Cleveland, 544. Sullivan v. Fugate, 88. Sullivan v. Hendrickson, 504. Sullivan v. Lamb, 268. Sullivan v. Langley, 277, 351, 385, 552. Sullivan v. Robb, 468. Sullivan Savings Inst. v. Kelly, 568. Sulzbacher v. Shoe, etc.. Bank, 569. Summers v. Glancey, 130. Summers v. Oberndorff, 88. Sumpter v. Wilson, 144. Sun Ins. Co. v. Seeligson, 356, 623. Supervisors v. Le Clerc, 443. Surratt v. Young, 502, 503. Surty V. Skilton, 36. Sutherland v. Bank, 344. Sutherland v. Bradner, 465. Sutherland v. Peoria Bank, 213,335. Sutton v. Hasey, 306, 653. Sutton V. Stevens, 544. Suydam v. Williamson, 438. Suydam et al. v. Huggeford, 11, 551, 614. Swager v. Pierce, 75. Swain v. Mizner, 219. Swallow V. Duncan, 263, 344 Swamscot Machine Co. v. Partridge, 634. Swan V. McCracken, 226, 655. Swan V. Summers, 259. Swaney v. Hutchins, 26, 28, 3], 161. Swann v. Broome, 161. Swart V. Thomas, 201. Swartz V. Lawrence, 524, 605. Swatzel V. Arnold, 66. Swayze v. Doe, 252. Swearingen v. Bassett, 183. Swearingen v. Howser, 83, 471. Swearingen v. Wilson, 367. Sweeny v. Hunter, 509. Sweet V. Reed, 53, 259, 264, 276, 379, 383. Sweetzer v. Claflin, 64, 289. Sweetzer v. Sparks. 232. Sweezey v. Bartlett, 463, 471, 484, 485. Sweringen v. Eberius, 622. Swett V. Brown, 337, 410, 412. Swett V. Sprague, 252. Swift V. Crocker, 540. Swift V. Plessner, 696. Swift V. Tyson, 438. Swiggett V. Dodson, 556. Swisher v. Fitch, 301. Svvitzer v. Wellington, 316, 317. Sword V. Circuit Judge, 87. Sydnor v. Galveston, 508. Syduor v. Tolman, 97. Symons v. Northern, 470. TABLE OF CASES. XCIX Tlie references are to pages. T. Taber v. Nye, 273. Tabor v. Big Pittsburg Mining Co., 76. Tabor v. Van Vranken, 303, 381. Tacoraa Co. v, Draham, 83, Tadlock v. Eccles. 501. Taft V. Bowker, 297, Tafts V. Manlove, 11, 504, 554, Taintor v. "Williams, 213, 403, 433, Talbot V. Pierce. 160 484. Talbot V. Tarlton, 258. Talcott V. Rosenberg, 92, 99, 124, 165, 236. Taliaferro v. Lane, 31, Talladega Co. v. McDonald, 356, 626. Tallant v. Gas Light Co., 683, Tallenion v. Cardenas, 36. Tallman v. Bigelow, 92, 97. Tallman v. :SIcCarty, 458, 586. Talmie v. Thompson, 436. Tarns V. Bullitt, 647. Tanner, etc., Co. v. Hall, 89, 90, 113, 121, 124, 134. Tapp V. Green, 379. Tappan v. Harrison, 12. Tarbell v. Bradley, 71, 75. Tarbell v. Dickinson, 700. Tarkinton v. Broussard, 65, 481. Tate V. Morehead, 362. Tatum V. Wright, 195. Tatum V. Zachry, 508. Taylor v. Adams, 116. Taylor v. Badoux, 58. Taylor v. Benjamin, 651. Taylor v. Branscombe, 580. Taylor v. Burlington & Mo. R. R, Co., 319. Taylor v. Carryl, 285, 664. Taylor v. Cheever, 13. Taylor v. Collins, 365, Taylor v. Drane, 74. Taylor v. Echford, 562, Taylor v. Emery, 240, 445, Taylor v. Froncoso, 418. Taylor v. Gardner. 373. Taylor v. Gillian, 200, 289, 290. Taylor v. Hines, 568, 687. Taylor v. Jones, 222. Taylor v. Kain. 361, Taylor v. Knipe, 314, Taylor v. Knowlton, 236. Taylor v. Knox, 23, 27, 33, 54. Taylor v. Kuhuke, 50. Taylor v. Lynch, 303. Taylor v. McDonald, 184 Taylor v. Missouri Glass Co., 183. Taylor v, Mixter, 206, 232. Taylor v. Mj-ers, 44. Taylor v. Phelps, 645. Taylor v. Reed, 91. Taylor v. Richards, 138, Taylor v. Robinson, 547. Taylor v. Root, 73. Taylor v. Smdall, 305. Taylor v. Smith, 88. Taylor v. Taylor, 492, 525. Taylor v. Thompson, 456. Taylor v. Trust Co., 365. Tazewell v. Barrett, 634 Teagar v. Landsley, 509. Teague v. Le Grand, 329. Teal V. Lyons, 128, 690. Teichman Com. Co. v. Bank, 556. Telles V. Lynde, 263. Temper v. Brooks, 290. Temple v. Cochran, 43, 689. Temple v. Hooker, 467. Ten Brock v. Pendleton, 473, Tenn. River Trausp. Co. v. Kava- naugh, 71. Tennant v. Battey. 10. Tennant v. Watson, 13. Teuney v. Diss, 42. Terre Haute, etc., Co, v. Baker, 392, 506. Terrill v. Rogers, 4. Territory v. Rindscoff, 700. Terry v. Lindsey, 292. Terry v. Sisson, 277, 364, 553. Tessier v. Crowley, 100. Tessier v. Englehart, 86, 106. Tevis V. Hughes, 148, 461, 477, 483. Thalheimer v. Hays, 483. Thatcher v. Bancroft, 623. TABLE OF CASES. Tlie references are to pages. Thatcher v. Goff, 142. Thatcher v. Kaucher, 43. Thatcher v. Powell, 449. Thayer V. Daniels, 303. Thayer'v. Partridge, 370. Thayer v. Pratt, 643. Thayer v. Sherman, 291. Thayer v. Southwick, 271. Thayer v. Tyler, 286, 314. The Belfast, 669. The Blanche Page, 525. The Caroline, 105. The C. F. Ackerman, 525. The Eenrom, 537. The Emily and Caroline, 105. The Frances, 537. The Independent, 394. The Lizzie Williams, 273. The Mariana, 496, 537. The Mary, 350. The Mary Anne, 538. The Merino, 103. The Monte- Allegre, 594. The Oliver Jordan, 285. The Robert Fulton, 285. The Samuel, 105. The Steamboat Rover v. Stiles, 668. The Tobago, 537. The Virgin, 535. Theall v. Disbrow, 563. Thebaud v. Nat. Cordage Co., 174. Their man v. Vahle, 88, 90. Thelusen v. Smith, 534. Third Nat. Bank v. Gaston, 82, 83. Thole v. Watson, 612. Thomas v. Brown, 69, 276, 605. Thomas v. Dickinson, 42. Thomas v. Fuller, 379. Thomas v. Gibbons, 264, 509. Thomas v. Godwin, 304. Thomas v. Hoffman, 356. Thomas v. Hopper, 339. Thomas v. Johnson, 611. Thomas v. Price, 383. Thomas v. Richards, 6, 238. Thomas v. Sprague, 368, 382. Thomas v. Woolridge, 275. Thompson v. Allen, 337, 377. Thompson v. Allison, 388. Thompson v. Arthur, 9, 137, 401, 477, 678. Thompson v. Baker, 51, 401, 403, 403, 617. Thompson v. Brown, 191. Thompson v. Butler, 667. Thompson v. Carper, 75. Thompson v. Chambers, 30. Thompson v. Culver, 470. Thom2)son v. Dater, 43. Thompson v. Dickinson, 95. Thompson v. Eastburn, 3, 5, 227. Thompson v. Emmert, 424. Thompson v. Fisehesser, 365. Thompson v. Gains ville N. Bank, 263, 392. Thompson v. Gould, 592. Thompson v. Jarvis, 272. Thompson v. Marsh, 190, 285. Thompson v. Rose, 108. Thompson v. Shackelford, 576- Thompson v. Shelby, 281. Thompson v. Silvers, 338, 642. Thompson v. Steamboat Morton, 250, 428. Thompson v. Stetson, 86. Thompson v. Stevens, 496. Thompson v. Stewart, 265. Thompson v. Taylor, 276. Thompson v. Thomas, 443, 447. Thompson v. Tinnen, 183. Thompson v. Tolmie, 441, 442. Thompson v. Tower Manuf. Co., 406. Thompson v. Turner, 464. Thompson v. Wallace, 640. Thompson v. AVhitman, 449, 450. Thompson, Alex., In re, 25, Thompson's Case, 34. Thompson, Matter of, 28, 39. Thorburgh v. Hand, 170. Thorington v. Merrick, 77, 91. Thormeyer v. Sisson, 355, 433. Thorn v. Knapp, 71. Thorn \\ Woodruif, 292, 339. Thorndike v. Bath, 197. Thorne v. IMatthews, 649. Thornton v. Cook, 198. TABLE OF CASES. CI Tlie references are to pages. Thornton v. Machine Co., 344. Thornton v. Mulquinne, 254. Thornton v. Winter, 228. Thornton v. Wood, 13. Thorp V. Elliott, 272. Thorp V. Fetz's Adm'r, 78. Thorp V. Preston, 273, 321. Thrasher v. Buckingham, 644. Threshing Machine Co. v. Miracle, 293. Throop V. Maiden, 211, 213. Throop, etc., Co. v. Smith, 201. Thurman v. Blankenship, 614. Thurneyssen v. Vouthier, 27, 40. Thurston v. Huntington, 545, 554. Tibbetts v. Tilton, 7. Tibbits V. Tovvnsend, 34. Tichenor v. Coggins, 572. Tiernan's Ex'rs v. Woodruff, 66. Tiernay v. McGarity, 305, 509. Tiflfany v. Glover, 244. Tiffany v. Lord, 129, 132, 476. Tift V. Griffin, 443. Tilden v. Metcalf, 313. Tiller v. Shearer, 689. Tillinghast v. Johnson, 292, 837. Tilton V. Cofield. 60, 116, 165, 583, 587. Tilton V. Sanborn, 500. Tim V. Franklin, 322, 339. Tim V. Smith, 467, 468, 469, 541, 548. Timm v. Stegman, 264. Tinimons v. Garrison, 220. Timmons v. Johnson, 635. Tindell v. Wall, 337. Tingley v. Bateman, 282, 335, 454, 510. Tingley v. Dolby, 201. Tipsey v. Tiiompson, 195. Tirrell v. Canada, 200. Titcomb v. Seaver, 259. Tobar v. Losano, 501. Tobey v. Claflin. 582. Todd V. Birdsall, 316. Todd V. McCravey, 500, 503. Todd V. Missouri Pac. R. Co., 263, 324, 344, 353, 509. Todd V. Shouse, 73. Toland v. Sprague, 422, 426, 440, 459. Toledo, etc., R. Co. v. McNulty, 649. Toledo, etc., R. Co. v. Reynolds, 356, 623, 640. Toledo Savings Bank v. Johnston, 700. Toll V. Knight, 624. Tomlinson v. Collins, 400, 401. Tomlinson v. Stiles, 171. Tomlinson v. Warner, 691. Tommey v. Gamble, 107, 108, 115. Tompkins v. Hemphill, 287. Tompkins, etc., Co. v. Schmidt, 319. Toms v. Wasson, 2. Toothaker v. Allen, 364. Tootle v. Coldwell, 48. Tootle V. Miner, 548. Torlina v. Trorlicht, 49. Torrance v. Bolton, 592, 593. Torrens v. Hammond, 299. Torrent v. Booming Co., 147. Torrey v. Burnett, 190. Torrey v. Otis, 395, 399. Totten V. Sale, 129, 502. Totty V. Donald, 582. Toulmin v. Lesesne, 233. Tourville v. Pierson, 504 Tower v. Church, 29. Towle V. Lamphere. 485. Towle V. Wilder, 324. Town V. Church, 25. Town T. Tabor, 238, 245. Towne V. Griffith, 259. Towns V. Pratt, 225. Tovvnsend v. Atwater, 262. Townseud v. Circuit Judge, 363. Townsend v. Libbey, 356. Townsend v. Newell, 188, 189. Trabent v. Rummell, 74. Tracy V. Gunn, 112, 113. Tracy v. Hornbuckle, 314. Tracy v. Jenks, 163. Tracy v. McGarty. 305, 381. Tradesmen's N. Bank v. Cresson, 323, Trafford v. Hubbard, 497. Trager v. Feibleman, 266. Train v. Herrick, 309. Train v. Wellington, 403. 404 Trammell v. Ramage, 699. Transit Co. v. McRea, 696. Cll TABLE OF CASES. Tlie references are to pages. Trapnall v. McAfee, 680, 695. Trautman v. Schvvalm. 91. Travis v. Tartt, 277, 339. Traweek v. Martin, 495, 680, 685. Treadway v. Ryan, 74. Treadway v. Treadway, 338. Treadwell v. Brown, 339. Treat v. Barber. 225. Tredwell r. Roscoe, 618. Trellson v. Green, 19. Trentman v. Wiley, 683. Trenton Banking Co. v. Haverstick, 80, 319. Treusch v. Ottenburg, 77, 306. Trickett v. Moore, 275. Triebel v. Colburn, 89, 316. Trieber v. Blacher, 221. Triplett v. Graham, 507. Trombley v. Clark, 389. Trotter v. Dobbs, 502. Trotter v. Lehigh, etc., Co., 191, 289. Trotter v. Zink & Iron Co., 191. Troubee v. Wheeler, 683. Trowbridge v. Sickler, 108, 125. Trowbridge v. Weir, 140. Trow Printing Co. v. Hart, 82. Trow's Printing & Bookbinding Co. V. Hart, 114, 468. Troxall v. Applegarth, 268. Troy V. Sargeant, 187. Troyer v. Schweiser, 646. Trudeau v. McVicar, 209. True V. Congdon, 577. True V. Emery, 546. Truitt V. Griffin, 268. Trunkey v. Crosby, 280. Trustees of Schools v. Tatman, 314 Tua V. Carriere, 570. Tubb V. Madding, 648. Tuck V. Manning, 293, Tucker v. Adams, 183, 568, 68a Tucker v. Atkinson, 2, 288. Tucker v. Butts, 291. Tucker v. Byars, 207, 227. Tucker v. Clisby, 265. Tucker v. Frederick. 485. Tucker v. Hamlin, 684. Tucker v. Tilton, 562. Tucker v. Vandemark, 579. Tucker V. White, 116. Tuckey v. Smith, 395. Tufts V. Carradine, 354, 545. Tufts V. McClintock, 170, 221. Tufts V. Volkening, 99, 246, 334. Tuller V. Arnold, 473. Tunstall v. Worthington, 340. Tupper V. Cassell, 307. Turbill's Case, 154. Turner v. Armstrong, 128, 271. Turner v. Austin, 239. Turner v. Bank of America, 442. Turner v. Burnell, 307. Turner v. Feudall, 191, 285, 287. Turner v. Hardin. 689. Turner v. Killian, 661. Turner v. McDaniel, 90, 103. Turner v. Lytle, 12, 222, 558, 672. Turner v. Miller, 698. Turner v. Railroad Co., 510. Turner v. Sioux City, 506, 646. Turner v. Vaughan, 502. Turner v. Younker, 177, 683. Turpin v. Coates, 382, 644. Turpin v. Whitney, 465. Tuttle V. Howe, 504. Tuttle V. Turner, 504. Tux worth V. Moore, 197. Twaddle v. Royers, 501. Tweedy v. Bogart, 354. Tweedy v. Jarvis, 364. Twombly v. Hunnewell, 395. Tyler v. His Creditors, 534. Tyler v. Safford, 486, 514, 697. Tyler v. Ulmer. 395. Tyler v. Winslow, 635. Tynberg v. Colien, 676, 684, 686, 691. Tyrrell's Heirs v. Rountree, 610, 616. Tyson v. Hamer, 130. Tyson v. Lansing, 31, 148. u. Uhrig V. Sinex, 681. UUman v. Eggert, 277. Ullman v. Myrick, 198. Ullmeyer v. Ehrmann, 367. TABLE OF CASES. cm The references are to pages. Ulraer v. Hiatt, 586. United States v. Arredondo, 436. Updegraff v. Spring, 634. Updyke v. Wheeler, 161. Upper Mississippi Transportation Co. V. Whittaker, 458, 586. Uppinghouse v. Mundel, 509. Upton V. Craig, 220. Upton V, Hubbard, 185. Utley V. Smith, 395. V. Vairin v. Edmonson, 251, 852, 253, 433, 443. Vallee v. Dumergue, 255, 421. Valle's Heirs v. Flemming's Heirs, 592. Van Amee v. Jackson, 199. Van Arsdale v. Krura, 146, 148. Van Buskirk v. Insurance Co., 298, 302. Van Dyke v. State, 63. Van Etten v. Hurst, 170. Van Keuren v. McLaughlin, 191. Van Kirk v. Wilds, 92, 121. Van Loan v. Kline, 10, 610, 616. Van Loon v. Lyons, 95, 129, 132, 476. Van Ness v. McLeod, 307. Van Norman v. Judge of Jackson Circuit, 3, 16, 124, 214, 433. Van Patten v. Burr, 303. Van Pelt v. Littler, 170, 225. Van Renselaer v. Kearney, 438, 596. Van Riswick v. Lamon, 289. Van Staphorst v. Pierce, 300. Van Vechten v. Paddock, 157. Van Vleet v. Stratton, 262. Van AVinkle v. Iowa, etc., Co., 279. Van Wj'ck v. Bauer, 13. Van Wyck v. Hardy, 604. Vance v. McLaughlin, 203. Vanderford v. Van Valkenberg, 7. Vanderhoof v. McAffee, 259, 365. Vanneter v. Grossman, 394. Van tine v. Morse 293. Varian v. Association, 369. Varnell v. Speer, 336, 350. Varner v. Radcliff, 457, 461. Vason V. Clarke, 355. Vaughan v. Dawes, 470. Vaughn v. Fisher, 057. Vaughn v. Slurtevant, 623. Veach v. Adams, 186. Veazie v. Somerby, 197. Veazie v. Williams. 596. Veiths V. Hagge, 680. Venable v. New York Ins. Co., 569. Vermont, etc., R. Co. v. Railroad Co., 407. Vernon v. Upson, 49, 193. Vertrees v. Hicks, 390. Vickery v. Ward, 684. Victor V. Hartford Insurance Ca, 271. Victor V. Henlein, 45. Vienne v. McCarty, 483, 486. Vierbeller v. Brutto, 292, 296. Vilas V. Reynolds, 208. Viles V. Bangs, 193. Vincent v. Huddleston, 10. Vincent v. Watson, 301. Vinton v. Bradford, 190, 285. Vinton v. Mead, 465. Violet V. Tyler, 235. Vogel & Reynolds. Matter of, 573. Vogt V. Dorsey, 460. Vollmer v. Chicago, etc., Co., 273. Von Beck v. Shuman, 585. Von Roun v. Superior Court, 572. Voorhies v. Bank of the United States, 441, 448, 587. Voorhies v. Denver Hardware Co., 262. Voorhies v. Eiting, 136, 5.76. Voorhies v. Henness}-, 209. Voorhies v. Hoagland. 185. Voorhies v. Michaelis, 474. Voorhies v. Session^, 190, 289. Voi-se V. Phillips, 12, 674, 689, 691, 696. Vosburgh v. Welch, 119. Vose V. Cockroft, 490, 529. Vose V. Handy, 251. Voss V. Murray, 577. Vreelan v. Brown, 468. Vurpillat v. Zelmer, 686. CIV TABLE OF CASES. Tlie references are to pages. w. Wabash v. Dougan, 512. Wabash R. Co. v. Seifert, 509. Wachter v. Famachron, 56, 57. Waddell v. Cook, 183, 618. Wadeleigh v. Jordan, 374. Wadsworth v. Cheeny, 1 14. Wadsworth v. Clark, 643. Wadsworth v. WaUiker, 176, 395, 402. Wafer v. Bank, 667. Waffer v. Goble, 69. Waffle V. Goble, 122. Wagener v. Booker, 130. Wagner v. Stocking, 12, 672. Wagon Co. v. Benedict, 486. Wahle V. Connor, 287. Waite, In re, 195. Waite V. Osborne, 292. Wakefield v. Fairman, 222, 297. Walbridge v. Hail, 442. Walbridge v. Spalding, 139. Wakot V. Pomeroy, 180. Walcott V. Hendrick, 32. Waicott V. Keith, 225, 337, 412 Walden v. Dudley, 169. Waldman v. O'Donuoll, 316. Waldron v. Wilcox, 257, 282. Wales V. Clark, 159. Wales V. Muscatine, 316, 317, 319. Walke V. McGehee, 271. Walker v. Bank of Mobile, 129. Walker v. Barrelli, 15, 32. Walker v. Beaury, 57. Walker v. Collins, 686, 691. Walker v. Cook, 313. Walker v. Gottrell, 5, 254, 483,443, 444. Walker v. Day, 433. Walker v. Detroit, etc., R. Co., 259, 324. Walker v. Fitts, 196, 223. Walker v. Foxcroft, 190, 286, 395. Walker v. Gibbs, 273. Walker v. Gilbert, 562. Walker v. Haggerty, 47. Walker v. Plintze, 506. Walker v. Ivey, 129. Walker v. Railroad Co., 272. Walker v. Roberts, 540, 585. Walker v. Taylor, 289. Walker v. Turner, 442. Walker v. Wonderlick, 177. Walker v. Woods, 159. Walker v. Zorn, 639. Walker, Ex parte, 627. Walkins v. Cawthorn, 427. Wall V. Pulliam, 406, 427, 433. Wall V. Wall, 444. Wallace v. Barker, 211. Wallace v, Bogel, 607, 613. Wallace v. Breeds, 197. Wallace v. Castle, 29. Wallace v. Finberg, 680, 683. Wallace v. Forest, 171, 601. Wallace v. Galloway. 184, 185. Wallace v. Haywood, 303. Wallace v. Lawyer, 289, 312, 316. Wallace v. Lewis, 472. Wallace v. Maroney, 575. Wallace v. McConnell, 389, 616. Wallace v. Monroe, 208. Wallace v. Robeson, 556. Wallace v. Swan, 547. Wallace v. Terry, 700. Wallace v. Wallace, 92, 125, 138. Wallach v. Sippilli, 89. Walling V. Miller, 298, 572. Wallis V. Murphy, 93. Wallis V. Taylor, 469. Walser v. Thies, 691. Walsh V. Adams, 183. Walter v. Bickham, 413, 462. Walters v. Insurance Co., 303. Walters v. Monroe, 431. Walton V. Cope, 397. Walton V. Sharp, 623, 63a Walts V. Nichols, 546. Wambold v. Vick, 170. Wands, etc. v. Rosenberg, 94 Wannell v. Kern, 58. Wanzell t. Morrisey, 87. Waples Platter Co. v. Low, 103. Ward V. Brewer, 580. Ward V. Carlton, 603. Ward V. County of Hartford, 313, 313, 316. TABLE OF CASES. cv The references are to pages. Ward V. Howard, 69, 540. Ward V. Lamson, 270. Ward V. Lewis, 300. Ward V. McKenzie, 10, 422, 43a Ward V. Morrison, 302. Ward V. Wafford, 501. Ward V. Whitney, 515. Warden v, Adams, 563, 610. Warder v. Baker, 267, 383. Warder v. Thrilkeld, 39, 40, 46. Wardle v. Briggs, 372. Ward well v. Jones, 313. . Ware v. Go wen, 43, 270. Ware v. Seasongood, 16, 73, 77. Ware v. Todd, 92, 99, 125, 604» Warne v. Kendall, 279. Warner v. Bank, 201, 269. Warner v. Everett, 44, 124. Warner v. Jaffray, 510. Warner v. Kade, 42. Warner v. Perkins, 277. AVarner v. Rice, 496. Warner v. Webster, 428, 433, 445. Warner, Matter of. 41. Warren v. Booth, 327. Warren v. Buckminster, 197. Warren v. Copelin, 302, 653. Warren v. Dick, 246, 255. Warren v. Leland, 395, 399. Warren v. Lord, 114, 481, 530. Warren v. Matthews, 296. Warren v. Moore, 383. Warren v, Purtell, 113, 166. Warren Manuf. Co. v. Etna Ins. Co., 448. Wart V. Mann, 268. Warwick v. Chase, 71, 75. Wasey v. Mahoney, 116. Washburn v. Bank of Bellows Falls, 618. Washburn v. Clarkson, 636. Washburn v. McGuire, 51. Washburn v. New York, etc., Co., 360, 623. Wasson v. Cone, 150, 458, 525, 607. Wasson v, Linster, 238. Wasson v. Millsap, 446. Waterbury v. Board of Comm'rs, 312, 314. Water Co. v. Middaugh, 367. Waterhouse v. Bird, 399. Waterhouse v. Smith, 213, 238, 427, 433. Waterman v. Treat, 399. Watkins v. Cason, 652. Watkins v. Cawthorn, 400. Watkins v. Field, 337. Watkins v. Otis, 200, 265. Watkins v. Over by, 504. Watkins v. Pope, 301. Watkins v. Stevens, 153. Watkins v, Wallace, 123. Watkins N. Bank v. Sands, 50. Watson V. Auerbach, 487. Watson V, Jackson, 558. Watson V. Kane, 382. Watson V. Kennedy, 688. Watson V. Montgomery, 383. Watson V. Pierpont, 26, 32. Watson V. Simpson, 487. Watson V. Todd, 275, 289. Watson V. Watson, 169. Watt V. Carnes, 82. Watt V. Wright, 207. Watts V. Harding, 62, 70. Watts V. Nichols, 226. Watts V. Rice, 3. Watts V. Robertson, 601. Watts V. Shropshire, 680. Waxe V. Russell. 12. Waxelbaum v. Paschel, 14, 16, 434, Wayman v. Southard, 438. Waynant v. Dodson, 607. Wear v. Sanger, 536. Wearne v, France, 466, 485. Weatherbee v. W^eatherbee, 246. Weaver v. Ashcroft, 183, 619. Weaver v. Cressman, 287, 289. Weaver v. Davis, 290, 291. Weaver v. France, 42. Weaver v. Hayward, 88, 89. Weaver v. Puryear, 70. Weaver v. Roberts, 244. Weaver v. Wood, 394, 395. CVl TABLE OF CASES. Hie references are to pages. Webb V. Edwards, 505. Webb V. Lea, 359. Webb V. McCauley, 289, 313. Webb V, Peelc, 265. Webber v. Bolte, 263, 273. Webber v. Doran, 373. Weber v. Carter, 624. Weber v. Cordes, 459. Weber v. Weitling, 38. Webster v. Adaius, 399, 644. Webster v. Daniel, 84, 86, 96, 98, 230. Webster v. Lowell, 645. Webster v. Parsons, 443. Webster v. Reed, 451. Webster v. Reid, 434, 448, Webster v. Steele, 371, 630, 635. Webster Wagon Co. v. Peterson, 5, 272, 387, 635. Weed V. Dills, 530. ■ Weed Sewing Machine Co. v. Bou- telle, 322. Weeton v. Woodcock, 530. Wehle V. Butler, 170. Wehle V. Conner, 92. Wehle V. Spellman, 527. Weightman v. Hatch, 181. Weil V. Geier, 162. Weil V. Kittay, 150. Weil V. Tyler, 262, 274. Weiller v. Schreiber, 48, 55. Weimeister v. Manville, 93, 109. Weingardt v. Billings, 159. Weir V. Dustin, 136. Weirich v. Scribner, 363, 625. Weis V. Basket, 211. Weis V. Chipman, 110, 143. Weis V. Goetter, 406. Weitkamp v. Loehr, 28, 34. Welcli V. Gurley, 293. Welch V. Robinson, 32. Welch V. Whittemore, 568. Weller v. Hawes, 695. Weller v. Weller, 372. Wellover v. Soule, 165, 376. Wells V. American Express Co., 337, 340, 360. Wells V. Baldwin, 667. Wells V. Columbia N. Bank, 560. Wells V. Banister, 359. Wells V. Brander, 468. Wells V. Danford, 113, 465. Wells v. Detroit, 3. Wells V. East Tenn., etc., 324. Wells V. Greene, 259. Wells V. Gurney, 219. Wells V. Hawes, 265. Wells V. Hogan, 89. Wells V. Lamb, 192. Wells V. Mace, 372. Wells V. Parker, 90, 133. Wells V. People, 37, 91. Wells V. Stevens, 444. Wells V. St. Dizier, 107, 488. Welsh V. Barrow, 513, 516. Welsh V. Joy, 333, 616. Welsh V. Lewis, 413. Weudel v. Durbin, 6. Wendell v. Pierce, 190, 385, 390, 314 Wengert v. Bowers, 637. Wentworth v. Sawyer, 110, 165, 360. Went worth v. Weymouth, 653. Wentworth v. Whittemore, 373. Wentzler v. Ross, 109. Werries v. Missouri Pac. R. Co., 325. Wescott V. Archer, 16, 247, 433, 437. Wessels v. Boettcher, 62, 245. West V. Meserve, 657. West V. Norfolk, 135. West V. Piatt, 277, 553. West V. Woolfolk, 110, 443. West Phila. Bank v. Dickson, 587, 573. West River Bank v. Gorham, 190. West Tennessee Agricultui'al Asso- ciation V. Madison, 83. Westcott V. Sharp, 73, 83, 117. Westerfelt v. Pinckney, 334. Western R. Co. v. Thornton, 336, 337. Westervelt v. Lewis & Tooker, 3, 434, 436. Wetherill v. Flanagan, 371. Wetherwax v. Paine, 81, 101. Wetmore v. Daffin, 80, 140. Wetsell V. Tillman. 680, 685. Wetter v. Pucker, 647. Wetzel V. Simon, 561. TABLE OF CASES. evil Tlie references are to pages. Wetzell V. Naters, 284. Whalen v. Harrison, 314. Whalen v. McMahon. 303, 536, 540. Wharton v. Conger, 93, 228, 491, 521. Wheat V. Bower, 230. Wheat V. Raihoad Co., 324, 344. Wheaton v, Neville, 208. Wheaton v. Sexton, 435. Wheeler v. Akhich, 648. Wheeler v. Bowen, 292, 29a Wheeler v. Cobb, 33. AVheelor v. Degnan, 27, 34. Wheeler v. Emerson, 372. Wheeler v. Fanner, 14. 89, 117. Wheeler v, McDill, 517. Wheeler v. Moore, 2U3. Wheeler v. Slavens, 476, Wheeler v. Smith, 288. Wheelock v. Lee, 457. Wheelock, In re, 570. Whidden v. Drake, 317. AVhipley v. Dewey, 190. Whipple V. Cass, 540. Whipple V. Hall, 483. Whipple V. Hill, 79, 109, 162. Whipple V. Robbins, 372, 645. Whipple V. Sheldon, 549, Whipple V. Thayer, 278. Whitaker v. Pendola, 496. W^hi taker v. Sumner, 206. Whitcomb v. Atkins, 392. Whitcomb v. Whitcomb, 495. Whitcomb v. Woodworth, 567. Wliite V. Bird, 361. White V. Casey, 83, 377. Wliite V. Coleman, 301. White V, Crow, 587. White V. Culter, 190. White V. Duggan, 516. White V, Dunn, 508. White V. Featherstonhaugh, 465. White V. Floyd, 605, 606. White V. Hawkins, 517. White V. Heavner. 622. White T. Hobart, 505. White V. Jenkins, 259, 271. White V. Jones, 442, 618. Wliite V. Kahn, 640. White V. Kilgore, 635. White V. Ledyard, 296. White V. Leszynsky, 54. White V. Lynch, 104. White V. Madison, 408. White V. Morton, 223. White V. O'Bannou, 207, 576. White V. Parish, 183. White V. Prior, 232, 234. White V. Richardson, 301. White V, Stanley, 100. WHiite V. Theilens, 5. W^hite V. White, 267, 411. White V. Wiley. 680. Wiiite V. Williams, 47. White V. Wilson, 47. White V. Woodward, 618. White V. Wyley, 691, 692. White's Bank v. Smith, 643. White Crow v. White Wing, 558. White Deer Overseer's Appeal, 503. Whitehead v. Coleman, 292. Whitehead v. Henderson, 341, 377. Whitehead v. Patterson, 626. Whitehill v. Basnett, 207. Whiteside v. Oakman, 470. Whitfield V. Hovey, 472. Whiting V. Budd, 456, 483. Whiting V. Earle, 301. Whitley v. Steakley, 27. Whitman v. Willis, 573. Whitman, etc., Ass'u v. National, etc., Ass'n, 134, 143, 612. Whitner v. Von Minden, 57. Whitney v. Blackburn, 162. Whitney v. Brown well, 681. Whitney v. Brunette, 106, 114, 125, 152, 583. Whitney v. Bntterfield, 161, 216, 656. Wliitney v. Dean, 268. Whitney v. Farrar, 13. Whitney v. Farwell, 400, 401, 402. Whitney v. Hirsch, 70. Whitney v. Kimball. 78. Whitney v. Ladd. 395, 396. Whitney v. Lehmer, 629. Whitney v. Muuroe. 276. Whitney v. Silver, 254. CVIU TABLE OF CASES. Tlie references are to x>ages. Whitset V. Womack, 533. Whittenberg v. Lloyd, 111, 166, 433. Whittier v. Smith, 289, 395. Whitwell V. Brigham, 13, 14 Whitwortli V. Pelton, 327. Whitworth v. Railroad, 363. WJiorley v. Memphis, etc., R. Co., 623, 625, 638. Whorton v. ]Morayne, 442. "Wichita, etc. v. Records, 487, 555. Wicker v. Scotield, 14. Wickes V. Caulk, 442, Wickham v. Nalty, 466. Wickmau v. Nalty, 468. Wicks V. Branch Bank, 303. Widgery v. Haskell, 219. Wieland v. Oberne, 685. Wiggin V. Atkins, 173, 175. Wiggin V. Day, 580. Wight V. Hale, 64, 165. Wight V. Warner, 121. Wigwall V. Union, etc., Co., 645, 647. Wilbraham v. Snow, 394. Wilbur V. Flannery, 290. Wilcher V. Shea, 355. Wilcox V. Clement, 304, 688. Wilcox V. Howe, 497, 501. Wilcox V. Jackson, 450. Wilcox V. McKenzie, 691. Wilcox V. Mills, 307. Wilcox V. Smith, 482. Wilcoxen v. Miller, 617. Wilcoxeu V. Morgan, 181. Wilcus V. Kling, 273. Wild V. Ferguson, 308. Wilder v. Bailey & Trustee, 287. Wilder v. City of Chicago, 441. Wilder v. Holden, 227. Wilder v. Shea, 292, 319, 327, 381. Wilder v. Weatherhead, 337, 550. Wildes V. Nahant Bank, 281. Wildman v. Van Gelder, 42. Wikliier v. Ferguson, 365. Wilds V. Blanchard, 211. Wiles V. Lee, 363. Wiley V. Aultman, 80, 90. AViley v. Bennett, 83, 111. Wiley V. Moor, 516. Wiley V. Pratt, 461. Wiley V. Sledge, 184. Wiley V. Traiwick, 692, Wilhelmi v. Haffner, 385; Wilke V. Cohn, 105, 434, 485. Wilkenson v. Hall, 372. Wilkie V. Jones, 4, 15, 426, 434, 611. Wilkins V. Tourtellott, 87, 221, 238. Wilkinson v. Leland, 442. Wilkinson v. Patterson, 462. Will V. Whitney, 216. Willard v. Butler, 262. Willard v. Decatur, 276, 290. Willard v. Sheafe, 272, 273. Willard v. Sperry, 227. Willard v. Sturtevant, 259. Willet V. Equitable Ins. Co., 282. Willet V. Price, 357. Willet V. Willett, 76. Willets V. Ridgway, 611. Willets V. Waite, 195. Williams v. Bank, 437. Williams v. Babbit, 236. Williams v. Barrow, 134, 135, 477. Williams v. Bernwell, 700. Williams v. Blunt, 442. Williams v. Boardman, 311, 313. Williams v. Bowden, 495. Williams v. Brackett, 242. Williams v. Brown, 687. Williams v. Cheesebrough, 244 Williams v. Coleman, 128. Williams v. Eikenberry, 170, 657. Williams v. Freeman, 77. Williams v. Gage, 271, 275. Williams v. Gilkerson, 462. Williams v. Glasgow, 122. Williams v. Hitzie, 629. Williams v. Housel, 371, 384 Williams v. Hunter, 681, 691, 693. Williams v. Jones, 289, 290, 384 Williams v. Keuney, 649. Williams v. Le Blanc, 698. Williams v. Link, 500. Williams v. Marston, 272. Williams v. Martin, 97. Williams v. Morgan, 170, 188, 228,659. Williams v. Piuer, 569. TABLE OF CASES. CIX Tlie references are to pages. Williams v. Pomeroy, 302. Williams v. Powell. 218, 398. Williams v. Railroad, 77, 263, 272. Williams v. Reed, 140, 265. Williams v. Sharpe, 114. Williams v. Skipwith, 479. Williams v. Stewart, 249, 432, 433, 442, 461. Williams v. Stock Board. 109 Williams v. Vanmetre, 556. Williams v. VVaddell, 548. Williams v. Walker, 466. Williams v. Weaver, 154. AVilliams v. Whiting, 28. Williams v. Williams, 459, 628. Williams v. Young, 270. Williams & Burce v. Stewart, 459. Williamson v. Ball, 442. Williamson v. Berry, 438, 442, 448, 450. Williamson v. Bowie, 620. Williamson v. Gayle, 637. Williamson v. Harris, 494. Willing V. Conseqiia, 633. Willis V, Brenmer, 49, 193. Willis V. Crooker, 114, 530. Willis V. Heath, 280, 637. Willis V. Lowry, 42, 52, 680, 683. Willis V. Lyman, 80, 81. Willis V. Matthews, 501. Willis V. McNatt, 691. Willis V. McNeill, 691. Willis V. Mike, 501. Willis V. Mooring, 90, 228. Willis V. Pounds, 617. Willis V. Rivers, 516. Willis V. Thompson, 536. Williston V. Jones, 50. Willman v. Friedman, 13. Wills V. Noyes, 692. Wills V. Sprague, 7. Wilmerding v. Cunningham, 89. Wilson V. Albright, 200, 276. Wilson V. Allen, 148. Wilson V. Arnold, 84, 89, 121, 123. Wilson V. Bank of La., 308. Wilson V. Bartholomew, 505. Wilson V. Beadle, 433. Wilson V. Blake, 540, 553. Wilson V. Britton, 53, 55, 484. Wilson V. Burney, 377, 644, 651. Wilson V. Churchman, 16 Wilson V. Cole, 54, 95. Wilson V, Dockery, 42. Wilson V. Felthouse, 687. Wilson V. Forsyth, 12. Wilson V. Groelle, 347. Wilson V. Hill, 556. Wilson V. Joseph, 307. Wilson V. Kelly, 059. Wilson V. Lane, 225. Wilson V. Lewis, 316, 317. Wilson V. Louis Cook Manuf. Co., 471. Wilson V. Lucas, 576. Wilson V. Madison, 504. Wilson V. Manufacturing Co., 71, 684. Wilson V. McElroy, 499. Wilson V. McEvoy, 697. Wilson V. Murphy, 652. Wilson V. Paulson, 495. Wilson V. Ray, 239. Wilson V. Reilly, 282, Wilson V. Ridgely, 285. Wilson V. Robertson, 55. Wilson V. Root, 695. Wilson V. Spring, 424. Wilson V. Wagar. 362. Wilson V. Wilson's Adm'r, 531, 524. Wilson V. Wood, 199. Wiltse V. Stearns, 28, 93, 125. Wimer v. Pritchartt, 273. Winchell v. Allen, 285, 292, 313. Winchell v. McKenzie, 657. Winchell v. Noyes, 72. Winchester v. Cox, 689. Winchester, etc. v. Creary, 659. Windley v. Bradway, 86. Windmiller v. Chapman, 228. Windsor v. McVeigh, 603. Windt V. Banniza, 471. Windwart v. Allen, 357. Wing V. Bradner, 194, 461 Wing V. Bishop, 566. Wiiigate V. Wheat, 220. Wingfield v. McLure, 640. Wingo V. Purdy, 42. 474. Winkler v. Barthel, 93, 95. Winslow V. Bracken, 385. Winslow V. Fletcher, 282. ex TABLE OF CASES. TJie references are to pages. Winsor v. Orcutt, 695. Winston v. Ewing, 275. Winstonly v. Savage, 35. Winterlield v. Milwaukee, etc., R. Co. 506. Winterfield v. Railroad, 494, 506. Winter v. Simpson, 503. Winters v. Pearson, 106, 113, 491. Winthrop v. Carleton, 643. Wirker v. Scofield, 84. Wirt V. Dinau, 63. Wise V. Hilton, 652. Wise V. Rothschild, 347. Wiswall V. Ticknor, 48. Withers v. Brittain, 71. Withers v. Fuller, 623. Withington v. Southworth, 245. Witt V. Meyer. 246. Witte V. Meyer, 583. Witter V. Little, 365. Wolf V. Cook, 3, 165, 239, 461, 490, 491. Wolf V. McGavock, 28, 92. Wolf V. Styx, 5, 521, 527. Wolfe V. Crawford, 188, 196 Wolff V. Bank of Commerce, 640. Wolford V. Phelps, 590. Womack v. McAhren, 462. Wood V. Barker, 691. 692. Wood V. Bodine, 394, 658. Wood V. Bodwell, 306. Wood V. Buxton, 272. Wood V. Carleton, 490. Wood V. Denny, 114, 530. Wood V. Hamilton, 27. Wood V. Lake, 643. Wood V. McCain, 547. Wood V. Partridge, 272, 302, 653. Wood V. Reynolds, 364. Wood V. Smith, 166. Wood V. Squiers, 139, 148, 477. Wood V. Thomas, 579. Wood V. Wells, 106. Wood V. Weir, 205, 691. Woodbridge v. Bank, 549. Woodbridge V. Morse, 270, 288, 291. Woodbridge v. Perkins, 300. Woodbury v. Long, 170, 189, 222. Woodiiouse V. Commonwealth Ins. Co., 307. Woodley v. Shirley, 160, 228, 479. WT)odman v. Trafton, 405 Woodruff V. Bacon, 637. Woodruff V. Sanders, 470. Woodruff V. Taylor, 7. Woodruff V. Ives, 15. Woods V. Brown, 357. Woods V. Bugby, 563. Woods V. Huffman, 687. Woods V. Milford Savings Institu- tion, 648. Woods V. Tnnquary, 73. Woodward v. Adams, 520, 521. Woodward v. Clark, 660. Woodward v. Ham, 566. Woodward v. Munson, 400, 401. Woodward v. Sartwell, 397. Woodward v. Tupper, 372. Woodward v. Witascheck, 520. Woodward v. Woodward, 292. Woodward v. Wyman, 261. Woodworth v. Lemmerman, 218. Woolbridge v. Holmes, 260, 329. Woolfolk V. Ingraham, 395, 609. Woolkins v. Haid, 3. Woolner v. Lehman, 556. Wooluer v. Spalding, 683. Wooster v. McGee, 15, 69. ; Wooster v. Page, 507. Worcester National Bank v. Chee- ney, 10, 206. Work v. Brown, 648. Work v. Gla skins. 634. Work v. Titus, 135, 139, 476. Worseley v. De Mattos, 577. Worstell v. Ward, 121. Worth V. Branson, 496. Worthington v. Care}', 115. Worthington v. Hylyer, 251. Worthington, In re, 162. Worthley v. Goodbar, 182. Wray v. Gilmors, 40, 105, 475. Wright V. Andrews, 465. Wright v. Bosworth, 261. Wright V. Boynton, 464. Wright V. Chicago, etc., R. Co., 385. Wright V. Dawson, 403, 404, 468. Wrigiit V. Deyoe, 503. Wright V. Dunning, 501, 504. TABLE OF CASES. CXI The references are to pages. Wright V. Foord, 270. Wright V, Grabfelder, 502. Wright V. Hale, 582. Wright V. Her rick. 116, 277, 553. Wright V. Hobsou, 88. Wright V. Keyes, 523. Wright V. Lassiter, 576. Wright V. Manns, 519, 611, 624 Wright V. Morley, 403. Wright V. Oakey, 462. Wright V, Raghuid, 84, 476. Wright V. Railroad Co., 510, 511. Wright V. Rambo, 485. Wright V. Smith, 11, 16, 83, 93, 111, 121, 140, 158, 434, 472, 556, 620. Wright V. Suedicor, 63. Wright V. Waddell, 189, 690. Wright V. Westheimer, 166, 505. Wright V. White, 517. Wrigley, Matter of, 28, 29. Wrigley v. Geyer, 262. Wronipelmeier v. Moses, 47. AVyatt V. Barwell, 578. AVyatt V. Stuckley, 669. Wyatt's Adm'r v. Rambo, 359. Wyeth, etc., Co. v. Lang, 509, 510. Wylie V. Grundysen, 495. Wyman v. Hallack, 522. Wymau v. Hichborn, 264. Wyman v. Matthews, 468. Wyman v. Russell, 615. Wyman v. Stewart, 3, 624. Wyman v. Wilmarth, 43, 485. Wynn v. Wyatt, 464. Wynne v. Governor, 515. Wynne v. State Bank, 375. Y. Yale V. Cole, 134, 135. Yale V. Hoopes, 555, Yale V. Saunders, 394, Yarborough v. Hudson, 687. Yarborough v. Thompson, 281. Yarborough v. Weaver, 541, 689, 699. Yarbrough v. Bush, 3. Yarnell v. Haddaway, 884 Yates V. Dodge, 57, 569. Yates V. North, 118. Yazoo R Co. v. Fulton, 643, 645 Yeatman v. Savings Institution, 10, 206. Yeldell v. Stemmons, 210, 568. Yelverton v. Burton, 355, 504, 544 Yerby v. Lackland, 360. Yerkes v. McFadden, 245. Yoakam v. Howser, 83, 471. Yocum V. Barnes, 515. Yocum V. White, 649. York V. Sanborn, 614. York V. State, 3, 459, 470. Young V. Campbell, 607. Young V. Cooper, 57. Young V. Fowler, 249. Young V. Gregorie, 689. Young V. Gray, 134, 477. Young V. Kellar, 413. Young V. Louisville, etc., R. Co., 500. Young V. Lynch, 71, 74. Young V. Nelson, 39, 41. Young V. Ross, 282, 454 Young V. Walker, 403, 562. Young V. Young, 65, 292, 450. Youugblood V. Harris, 190. Younkin v. Collier, 269, 329. Yourt V. Hopkins, 617. z. Zacharie v. Bowers, 78, 253. Zadtik V. Shafer, 548. Zanz V. Stover, 339. Zechman v. Hank, 144 Zeigenhageu v. Doe, 11. Zeilke v. Morgan, 503. Zelnicker v. Brigham, 73, 502, 576. Zerega v. Benoist, 36, 111, 433, 470. Ziegenhagen v. Strong, 539. Zimmer v. Davis, 290, 635. Zimmerman v. Franke, 509. Zinn v. Rice, 676. Zollar v. Jauvrin, 527. Zoller v. Grant, 180, 183. Zook V. Blough, 466. Zurchor v. Magee, 292. Zschocke v. People, 394 ATTACHMENT AND GARNISHMENT. CHAPTER T. THE REMEDY OUTLINED. I. Definition and Distinctions §§ 1-4 II. The Suit Against Property 5-11 III. The Right to Attach 12-18 IV. Pre-existing Liens 19-23 v. Construction 23-25 I. Definition and Distinctions. § 1. Tlie jyrevalent system. — In prominent features, nearly all the attachment laws of this country are alike. There is such substantial uniformity that the theory and practice under the statutes may be found susceptible of being treated with unity and system. Attachment, as generally authorized, is a proceeding to create and enforce a lien. It is a remedy for the collection of ordinary debt by preliminary levy upon property of the debtor to conserve it for eventual execution after the lien shall have been perfected by judgment. The remedy is, in some states, applicable in suits for torts and for liquidated debts not due. § 2. Statutory authorizations of the remedy for other pur- poses, such as the vindication of pre-existing liens, the recovery of purchase-money by the sequestration of specific property, reparation for not delivering property to the sheriff under or- der, and all attachments on unusual grounds, are exceptional.^ The employment of the process to compel the appearance of the debtor, or attachment as distraint, has fallen into disuse ; it is almost universally destitute of statutory warrant, and is not in harmony with the remedy now prevailing. § 3. Different forms of the remc(h/. — Direct attachment and garnishment differ from each other in many respects, but are 1§§73-7G, 101, 102. 1 2 THE REMEDY OUTLINED. [§§ 4, 5. governed by the same principles in tlie creation and enforce- ment of the lien. Domestic and foreign attachment are scarcely distinguished in most of the states ; for non-residence is treated as one of the grounds of attaching, and proceedings upon it are of the same character as those on other grounds, except that some statutes make a difference as to the requirement of a bond. In a few states foreign attachment is in use, and is practiced much as under the custom of London.^ The attaqhment proceeding is ancillar}^ to the principal suit when considered apart from it, especially when separately in- stituted to aid it.- § 4. Personal form of suit. — In form the suit is always m personam. A summons is always issued to the debtor ; the pleadings are of a personal character, and the judgment is rendered for or against him as defendant. Though the ob- ject is to secure his property in advance for eventual execu- tion, yet no particular property to be attached is described in the petition and affidavit, and none is seized before the suit ; nor is it certain that any will be found ; and, if nothing be attached, the suit goes on to the end as a merely personal ac- tion without any change of the pleadings. So, if something be attached, but released ])endente lite., the suit goes on as a personal one in the form in which it was instituted. When the debtor is not served and does not appear, but is notified by publication, the suit is against attached property only; but the form is still personal from the beginning to the judgment nominally against the defendant, with privilege upon the property attached. II. The Suit Against Pkopektt. § 5. In effect, the attachment suit is always against prop- erty. Whether the debtor has been served or has appeared so as to make himself a personal party, or has been merely invited by publication and has not responded, the proceeding by attachment is to create a lien upon the property attached and ultimately to vindicate it by sale for the satisfaction of 1 Post, %% 881, 884. Toms v. Wasson. 66 N. C. 417 ; Marsh 2 Luckett V. Rumbaugh, 45 Fed. 29 ; v. Williams, 03 N. C. 371. 6.] THE SUIT AGAINST PKOPERTY. the debt. The jurisdiction is over the res attached and not over its unserved and non-appearing owner, though it is over both when both are in court. Yet, with both present, the attachment has to do with the property; the lien, perfected by judgment, rests on that only ; so, whether the debtor be in court or not, if the property is there, and he has been ten- dered his day in court, the attachment suit is, in efifect, a pro- ceeding in rem} % 6, Effect of judgment — That, under such circumstances, the suit is a property action, appears from the rule that the record of 'the case is not admissible in any other cause pend- ing against the debtor though it may be adduced in a proceed- ing against the property It is definitely settled that when something is attached, if the debtor-ownei-, notified by publica- tion, does not come into court, the only effect of a judgment sustaining the attachment is to subject the property to the payment of the creditor's demand.- 1 Stanley v. Stanley, 35 S. C. 94; Davis V. Megroz (N. J.), 26 A. 1009 ; Miller v. Dungan, 36 N. J. L. 21; Thompson v. Eastburn, 16 N, J. L. 100; Huber v. Abbott, 39 La. Ann. 1112 ; Churchill v. Goldsmith, 64 Mich. 250. (See York v. State, 73 Tex. 651.) Comer v. Reid, 93 Ala. 392 ; Ladiga Mill Co. V. Smith, 78 Ala. 108; Watts V. Rice, 75 Ala. 289; Yarbrough v. Bush, 69 Ala. 170; Haralson v. Camp- bell, 63 Ala. 278 ; McCoy v. Watson, 51 Ala. 466 ; Wyman v. Stewart, 42 Ala. 163; Cousins v. Alworth, 44 Minn. 507; Feikert v. Wilson. 38 Minn. 434. {See Barber v. Morris, 37 Minn. 194; Kenney v. Georgen, 36 Minn. 190.) Compare Cleland v. Tavernier, 11 Minn. 126 [194]; Stone u Myers, 9 Minn. 287 [303] ; Fergu- son V. Crawford, 70 N. Y. 253. See Wolf V. Cook, 40 Fed. 437 ; Insurance Co. V. Wagei-, 35 Fed. 364. 2 Cooley's Const. Lim. (6th ed.) 498 ; Pennoyer v. Neflf, 95 U. S. 731, 734 ; St Clair v. Cox, 106 U. S. 350 ; Cooper V. Reynolds, 10 Wall. 308 ; Harris v. Hardeman, 14 How. (U. S.) 334, 340 ; Fitzpatrick v. Flannagan, 106 D". S. 648; Pancoast v. Washington, 5 Cr. (C. C.) 507; Westervelt v. Lewis & Tooker, 2 McLean, 511, 514 ; Robinson V. Nat. Bank, 81 N. Y. 393 ; McKinney V. Collins, 88 N. Y. 216; Jones v. Gresham, 6 Blackf. 291; Kilbourne V. Woodworth, 5 Johns. (N. Y.) 37; Matter of Faulkner, 4 Hill, 598 ; Fitz- simraons v. Marks, 66 Barb. 333 ; Force V. Gower, 23 How. Pr. 294; Fisher V. Lane, 3 Wils. 297 ; Coleman's Ap- peal, 75 Pa. St. 441 ; Jackson v. Bank of the United States, 10 Pa. St. 61; Phelps V. Holker, 1 Dall. (Pa.) 261: Fitch V. Ross. 4 S. & R. 557 ; Downer V. Shaw, 2 Fos. 277 ; Miller v. Dun- gan, 36 N. J. L. 21 ; Field v. Dortch. 34 Ark. 399; Myers v. Smith, 29 Ohio St. 125 ; Egan v. Lumsden, 2 Disney (O.), 168 ; Wells v. Detroit, 2 Doug. (Mich.) 77, 79; Greenvault v. F. & M. Bank, id. 498, 508 ; Buckley V. Lowry, 2 Mich. 418; Matthews v. Densmore, 43 Mich. 461 ; Van Nor- man V. Judge of Jackson Circuit, 45 id. 204; Bower v. Town, 12 Mich. 233 ; Woolkins v. Raid, 49 Mich. 299 ; THE EEMEDY OUTLINED. r§§ '^, 8. § Y. It has been said that if property is attached and publi- cation made, the defendant is thereby brought into court for all purposes except the rendition of a personal judgment ag-ainst him. This is self-contradictorv ; for, if not in court so as to be liable to a personal judgment, he cannot be there for any purpose whatever, unless he has made a special ap- pearance. If, under such circumstances, judgment can be rendered only in effect against the property attached, for what conceivable purpose may the unserved and non-appearing debtor be deemed in court by virtue of the publication?^ § 8. Debtor and Ms projyerty, in court — Attachment is said to be an incident of the personal action when both the debtor and the property are in court.- It is auxiliary to it.' It may disappear from the suit by the quashing of the writ, while the action against the debtor himself may go on and be pros- ecuted to judgment.* Though attachment be not incidental or auxiliary in the Chamberlain v. Faris, 1 Mo. 517; Massey v. Scott, 49 Mo. 278 ; Erwin V. Heath, 50 Miss. 795 ; Myers v. Far- rell, 47 Miss. 281 ; Bates v. Crow, 57 Miss. 676, 678 ; People v. Cameron, 7 111. 468 ; Clymore v. Williams, 77 111. 618; Hobson v. Emporium Real Es- tate & Manf. Co., 42 111. 306; Con- well V. Thompson, 50 id. 330 ; Rowley V. Berrian, 12 111. 198, 202 ; Banta v. Wood, 32 Iowa, 469; Doolittle v. Shelton, 1 Greene (Iowa), 272 ; Wilkie V. Jones, 1 Morr. (Iowa), 97; May- field V. Bennett, 48 Iowa, 194 ; Shir- ley V. Byrnes, 34 Tex. 625 ; Green v. Hill, 4 Tex. 465; Hunt v. Norris, 3 jNIartin (La.), 527 ; Epstein v. Salorgne, 6 Mo. App. 352. (See Mosher v. Bar- tholow, id. 598.) 1 An isolated paragraph in King v. Vance, 46 Ind. 246, which is com- pletely overborne by the body of the decision, seems to have led to error in this respect. In Cheatham v. Trot- ter, Peck, 198, it is said that if at- tachment is levied on the property of a debtor, he is before the court and judgment may be taken against him if he does not appear. See Ter- vill V. Rogers, 3 Hay w. (Tenn.) 203 ; Mitcliell V. Sutherland, 74 Me. 100. But it is settled that nothing more than a nominal personal judgment can be rendered under such cir- cumstances, and that execution is confined to the property attached. King V. Vance, 46 Ind. 246 ; Miller v. Dungan, 36 N. J. L. 21; Clymore v. Williams, 77 111. 618 ; Bates v. Crow, 57 Miss. 676, 678; Fitzsimmons v. Marks, 66 Barb. 333; Kilburn v. Woodworth, 5 Johns. 37; Epstein V. Salorgne, 6 Mo. App. 352 ; Banta v. Wood, 32 Iowa, 469. 2 Cooper V. Reynolds, 10 Wall. 308. 3 Bivens v. Mathews, 7 Bax. 256 ; McComb V. Allen, 82 N. Y. 114; Par- sons V. Paine, 26 Ark. 124 ; Maxwell V. Stewart, 22 Wall. 77. 4 Fitzpatrick v. Flannegan, 106 U. S. 650 ; Buudrem v. Denn, 25 Kan. 430; Bates v. Crow, 57 Miss. 676; Parker v. Brady, 56 Ga. 372 ; Erwin V. Heath, 50 Miss. 795 ; Bayersdorfer V. Hart, 12 Phila. 192. 9.] THE SUIT AGAINST PROPERTY. first stage of a suit, when the notified defendant has not re- sponded as a party, it becomes so upon his appearance, and yet retains its character as a proceeding against property. Land being attached, the debtor subsequently appeared, and it was held that the suit continued in rem as to the land, but in personam as to him.^ § 9. Ducdit}/. — The suit, considered as a whole, is dual when biDth the defendant and his property are in court j^ for the personal action may be prosecuted to judgment though the attachment be dismissed.^ And in an appellate court the per- sonal judgment may be affirmed, yet the judgment sustain- ing the attachment may be reversed.* Property, attached in the hands of a garnishee, is held by him as a keeper, subject to the order of the court. The pro- ceeding against him is personal,^ while that against the thing attached in his hands is not.'' The latter is essential to the existence of the principal suit when the principal debtor is not in court. 1 Connelly v. Lerche (N. J. L.), 28 A. 430: Davis v. Megroz (N. J. L.), 26 A. 1009 ; Jackson v. Johnson, 51 N. J. L. 4G1 ; Thompson v. Eastburn, 16 N. J. L. 100. 2 Bates V. Crow, 57 Miss. 676, 678; Bundreni v. Denn, 25 Kan. 430; Grubbs v. Colter, 7 Bax. 432 ; Bivens V. Matthews, 7 id. 256; Walker v. Cottrell. 6 id. 257. 3Sharpless v. Zeigler, 92 Pa. St 467 ; White v. Theilens, 106 Pa. St. 173 ; Biddle v. Black, 99 Pa. St. 380 ; Brenner v. Moyer, 98 Pa. St. 274; Jaffray v. Wolfe (Ok.), 33 P. 944; Hendrix v. Cawlhorn, 71 Ga. 742; Ga. Code, ^^ 3309, 3319, 3328 ; Buice V. Mining Co., 64 Ga. 769; Light v. Isear, 28 S. C. 440 ; Myers v. Smith, 29 Ohio St. 120 ; Eddy v. Moore, 23 Kan. 113; Hill v. Harding, 93 IlL 77 ; Phillips v. Hines, 33 Miss. 163 ; Irvin V. Howard, 37 Ga. 18; Shirley V. Byrnes, 34 Tex. 625; Love v. Voorhies, 13 La. Ann. 549; Gillispie V. Clark, 1 Tenn. 2 ; Hills v. Moore, 40 Mich. 210 ; Epstein v. Salorgue, 6 Mo. App. 352 ; Wolf v. Styx, 99 U. S. 1 ; Buckingham v. Swezy, 61 How. Pr. 266 ; McCombs v. Allen, 82 N. Y. 114; Scanlon v. O'Brien, 21 Minn. 434 ; Dierolf v. Winterfield, 24 Wis. 143 ; Miller v. Ewing, 8 S. & M. 421 ; Harris v. Gwin, 10 id. 563 ; Jones v. Hunter, 4 How. (Miss.) 342 ; Hender- son V. Hamer, 5 id. 525 ; Lester v. Watkins, 41 Miss. 647 ; Bishop v. Fennert}', 46 id. 570; Holman v. Fisher, 49 id. 472 ; Erwin v. Heath, 50 id. 795. * Fitzpatrick v. Flannagan, 106 U. S. 648, 660. 6 Coda V. Thompson (W. Va.), 19 S. E. 548; Middleton Paper Co. v. Rock River Paper Co., 19 Fed. 252. 6 Connor v. Pope, J8 Mo. App. 89 ; Webster Wagon Co. v. Peterson, 27 W. Va. 314 ; Buschman v. Hauua, 73 Md. 1 ; 18 A. 962. 6 THE KEMEDY OUTLINED. [§§ 10, 11. If the garnishee holds no property of the defendant but owes him a debt, the service of process upon him, with notice to the defendant, will not enable the garnishor to follow into third hands the money with which the garnishee may have paid the debt after service; there is no lien upon the money, as it is not attached as a special deposit.^ The garnishee, however, would be personally liable. § 10. Limited effect — Attachment is not a general proceed- ing binding upon all the world, but a limited one, confined to the interest of the debtor.- The former is conducted ir- respective of the owners of the things seized : the latter only with reference to the interest of the debtor ; in the former the notice or monition is general: in the latter it is limited to the debtor; in the former, all persons interested must appear and assert their rights or they will be forever concluded by the decree against the property: in the latter, they need not appear (except the notified debtor), and they cannot be de- faulted, or affected by a final decree subjecting the property to pay. § 11. The criterion. — If the universality of the judgment- obligation were the criterion by which to judge whether a suit is against a thing or not, all actions belonging to the second class mentioned, including attachment suits, would be ruled out. It has often been made the criterion, because courts have had in mind proceedings with general notice, and have thought that all suits must conform to them in the feature of universal conclusiveness to be entitled to the designation of proceedings against things. And, where this feature has ap- peared, they have accepted the proceeding as one against a thing even when it has been to declare personal status. In illustration, may be mentioned the judicial recognition or ap- pointment of an administrator, executor or guardian.^ Orders making such appointments have some reference to property, it is true; but they do not differ from like orders in which no property is concerned, such as those fixing the statics of a 1 Hulley V. Chedic (Nev.), 36 P. 783. Wis. 671 ; Wendel v. Durbiu, 26 Wis. 2 First N. Bank v. Greenwood, 79 390 ; Meyer v. Gage, 65 la. 606. Wis. 281 ; Thomas v. Richards, 09 » Farrar v. Ohustead, 24 Vt. 123. I 11. THE SUIT AGAINST PROPERTY. 7 pauper,^ emancipating a minor, naturalizing a foreigner,^ etc., which, by the same criterion, have been also held to be in rein, though no property whatever is involved. There is a class of orders which, b}^ this criterion, have been put with proceedings against things, though the orders have but a slight relation to property, and cannot properly be said to be against it; such as those discharging a bankrupt,^ settling the accounts of an administrator or executor,* granting letters of administration,^ probating wills,^ etc. These, like a judg- ment fixing the status of an applicant for divorce,^ resemble decrees, of the general character above mentioned, against property, in the feature of universal conclusiveness, and are, in that respect, as */" against things, though there really is no res involved. The courts do not claim for them any other feature of the action distinctively against property.^ They are in lyersonawo but quasi in rem. While, on the other hand, orders fixing the status of per- sons have thus been treated as proceedings against things by reason of their universal obligation, attachment suits have been denied that character because binding only upon parties and privies.'' 1 Regina v. Hartington, 4 Ellis & Seld. 190 ; Holliday v. Ward, 7 Harris, Bl. 780 ; Regiua u Wye, Adolph. & E. 485 ; Lovett v. Matthews, 12 id. 338 ; 761. Shinn v. Holmes, 1 Casey, 142; 2McCartliy v. Marsh, 1 Selden, 263; Hodges v. Baneham. 8 Yerg. 186; The State v. Penny, 5 Eng. 621. Box v. Lawrence, 14 Tex. 345; Her- SLiverinoreu. Swasey, 7 Mass. 213; bert v. Haurick, 16 Ala. 581; Wills In re Bellows, 3 Story, 128 ; Dery v. v. Sprague, 3 Gratt. 355 ; Judson v. McHenry, 29 Me. 206. Lake, 3 Day, 318. *Tibbetts v. Tilton, 4 Foster, 120; 9 Ma gee v. Beirne, 39 Pa. St. 62: Bryant u Allen, 6 N. H. 116; Clark "Thejudgment concludes parties and V. Callaghan, 2 Watts, 259. privies, but not strangers. It is not 5 Lawi-ence t'. Englesby, 24 Vt. 42; true of a judgment in attachment Stein V. Bennett, 24 Vt. 303; Ryland thatit authorizes the plaintiff to seize V. Green, 14 S. & M. 194. a thh-d party's property for the de- 6 Woodruff V. Taylor, 20 Vt. 65. fendant's debt. In 2 Smith's L. C, '§§ 60S, 609. Am. Ed., p. 689 et seq., the cases on 8 Eunis V. Smith, 14 How. 400 ; this head will be found collected, and Dublin V. Chadburn, 16 Mass. 433; their result stated to be that, properly Laughton v. Atkins, 1 Pick. 535 ; speaking, proceedings by attachment Osgood V. Breed. 12 Mass. 525; Peters are not in rem, but are rather pro- V. The AVarren Ins. Co., 3 Sum. 389 ; ceedings against the interest of the Dickinson v. Hayes, 31 Ct. 417; defendant and those claiming under Sheimer's Appeal, 8 Wright, 396: him in the thing attached." And Vanderford v. Van Valkenberg, 2 there are other cases, upon this and 8 THE KEMEDY OUTLINED. [g 12. Certain probate proceedings are against the property of the decedent, which is an indebted thing; and they belong to the same class with attachments, since condemnation and sale follow limited notice, and the whole world is not con- cluded by the result.^ They are not formally against prop- erty but are so in effect. Though, like attachments, they resemble personal actions, and are, in the characteristic men- tioned, as if against persons, they are reallj^ in rem and only (juasi in personam. III. The Right to Attach. § 12. Creation of the lien. — As there can be no action in rem without a /w* in re or ad rem^ how can the creditor attach to secure ordinary debt? If it be answered that the law author- izes him to do so, there comes the further question, how can the legislator create for him a right in a thing to be enforced as a lien upon it? Such right can no more be bestowed di- rectly by the state than the transfer of property from one to another person can be made arbitrarily by it. But it may provide that the right or lien shall arise, by operation of law, upon the happening of certain conditions. Let us see what circumstances and what reasons justify such legislation. like reasons, in which the same re- stituted by petition or pubUcation, suit is reached. Eaton v. Pennywit, without any direct or personal serv- 25 Ark. 144; Walker v. Cottrell, 6 ice of process, and are sometimes Bax. 257 ; Ingle v. McCurry, 1 Heis. described as proceedings in rem; and 26 ; Houston v. McCluney, 8 W. Va. there can be no doubt that the order 135 ; Rhode Island Trust Co. v. or decree in such eases will be con- Keeney (N. D.), 48 N. W. 341. elusive as regards every one who 1 Because probate decrees against claims title by descent from the an- things are not res adjiidicata quoad cestor, whether he is or is not actually omnes, the proceedings have been ex- before the court. Benson v. Cilly, 8 eluded from classification with pro- Ohio, N. S. 604. But the substantial ceedings in rem, being tested by the difference between such an order and wrong criterion above mentioned, a true judgment in rem is, that the In 2 Smith's L. C, p. 691, it is said : estoppel is limited to the parties and "The proceedings which are very privies, and will not be binding even generally in use in the probate and on them, unless they had actual or orplians' courts of this country, for constructive notice in the manner the sale of the real estate of an an- prescribed by statute." As notice is cestor for the payment of liis debts, necessary in both classes of proceed- or for the purpose of facilitating or ings above mentioned, the argument affecting a partition or di.stril)ution drawn from the law of estoppel seems among his heirs, are commonly in- untenable. §§ 13-lG.] THE KIGHT TO ATTACH. 9 § 13. Liability of in'operUj. — Credit is given usually with reference to the debtor's property enabling him to pay. Upon his death, either natural or civil, his property becomes liable for the debt. The principle upon which the legislator author- izes proceedings against the property of a decedent or a bank- rupt, is the same as that upon which the attachment of the property of a non-resident, absconding, concealed, or fraudu- lent debtor, is based. The principle is that property is liable for its owner's debts, though he be beyond the reach of ordi- nary process or so circumstanced that it cannot prove effectual. § 14. Operation of law. — The state cannot step between con- tracting parties and create a lien when they have made none, but it can so legislate that a lien will arise by operation of law upon the occurrence of a designated state of things. Debts are contracted with knowledge that when ordinary process shall be inadequate, the extraordinary may be employed and a lien created. The debtor gives occasion, by his acts or omissions, for the creditor to avail himself of the statutory provision. There is therefore nothing arbitrary in the crea- tion of the lien. § 15. Essentials. — The creditor must make a showing of the existence of facts bringing his claim within the statute. Personally, or by an agent knowing the facts, he must make affidavit to them This is essential to the action; and the court's authority to order attachment does not exist without it. And, to provide against any wrong to the debtor, the creditor must give a bond to secure him, in most of the states.^ § 16. SpecifiG lien. — The creditor, upon compliance with statute, is entitled to have his debt secured by having prop- erty of his debtor seized and conserved for eventual execu- tion. He proceeds on the assumption that he already has a lien; and when property has been attached, and the condi- tions of the statute strictly observed, the lien has all the force I Benedict v. Biay, 2 Cal. 251 ; 71 Mo. 473 ; Lawrence v. Hagei-man, Thompson v. Arthur, Dudley (Ga.), 56 III 68. It is held that attach- 253; Cousins v. Brashier, 1 Blackf. ment by the state without bond or 85 ; Ford v. Woodward, 10 Miss. 260 ; affidavit may be authorized without Briggs V. Smith, 13 Tex. 260: Boat- violation of the constitution. Mac- wright V. Stewart, 37 Ark. 61-4 ; Dent douald. Ex parte, 76 Ala. 603. V. Smith, 53 Iowa, 262 : Clark v. Brotr, 10 THE REMEDY OUTLINED. [§ 17. of a mortgage or other conventional lien. It rests upon par- ticular property, and is, from the moment of its creation, a specific lien.^ The lien which the creditor assumes to have is hypothetical — dependent upon the contingency that it be established by judgment.- It is not certain, like the lien of an execution.' It may be abandoned by the creditor's dismissal of his at- tachment. He may resort to a different remedy; for his election of this does not estop him from employing another form of action after its discontinuance.^ He may release part of the property attached without affecting his inchoate lien on the rest, and without losing his priority relative to junior attach ers.^ § 17. Retroaction. — By the law of relation, an attachment judgment retroacts to the time the property was first at- tached ; ^ to the time it was first subjected to garnishment ; so that no incumbrances put upon it by its owner since that time can have higher rank than the attaching creditor's lien. Such retroaction makes the lien perfect from its first incep- tion as though created by the contract of the parties; as 1 Smith V. Bradstreet, 16 Pick. 264 ; Appeal, 14 Pa. St. 326 ; Hoag v. How- Van Loan V. Kline, 10 Johns. 129 ; ard, 55 Cal. 564 ; Chandler v. Dyer, Bates V. Ploiisky, 28 Hun, 112; Scar- 37 Vt. 345; Vincent v. Huddleston, borough V. Malone, 67 Ala. 570 ; Hurt Cooke (Tenu.), 254 ; Ward v. McKen- V. Redd, 64 id. 85 ; Carey v. Gregg, 3 zie, 33 Tex. 297 ; Harrison v. Trader, Stew. 433; Hervey v. Champion, 11 29 Ark. 85; Trellson v. Green, 19 id. Humph. 569 ; Moore v. Fedawa, 13 376 ; Desha v. Baker, 3 id. 509 ; Moore Neb. 379; Berryman v. Stern, 14 v. Holt, 10 Gratt. 284; Erskiue v. Nev. 415; Moresi v. Swift, 15 Nev. Staley, 12 Leigh, 406. 215; Yeatman v. Savings Institu- 2 Cooke r. Cooke. 43 Md. 523 ; Ten- tion, 95 U. S. 764; Peck v. Webber, 7 nant v. Battey, 18 Kan. 324; Avery How. -(Miss.) 658 ; Saunders v. Co- v. Stephens, 48 Mich. 246 ; Fuller v. lumbus Life Ins. Co., 43 Miss. 583 ; Hasbrouk, 46 Mich. 78. McBride u Harn, 48 Iowa, 151 ; Peo- 3 McEachin v. Reed, 40 Ala, 410; pie V. Cameron, 7 111. 468 ; Worcester Lamar v. Gunter, 37 Ala. 324. National Bank v. Cheeney, 87 111. ^ Johnson v. Central Bank, 116 Mo. 602 ; Liebman v. Ashbacker, 36 Ohio 558. St. 94; Patch v. Wessels, 45 Mich. 5 Daggett v. Wimer, 54 Mo. Ap. 249; Greely v. Reading, 74 Mo. 309; 125. Chandler v. Dyer, 37 Vt. 345 ; Metts ^ Bates v. Plousky, 62 How. Pr. V. Ins. Co., 17 S. C. 120; Goore v. 429; Avery v. Stephens, 48 Mich. McDaniel, 1 McCord (S. C), 480 ; Car- 246 ; Scarborough v. Malone, 67 Ala. ter r. Champion, 8 Ct. 549; Daven- 570; Field v. Dortch, 34 Ark. 899; port V. Lacon, 17 id. 2i8; Adler v. Hill v. Baker, 32 Iowa, 302. Roth, 2 McCrary, 445; Schacklett's § 18.] THE RIGHT TO ATTACH, 11 though it were a mortgage lien voluntarily put upon the property by the defendant himself. On the contrary, in case of final judgment for the defendant, there never has been any lien whatever;^ his subsequently created incumbrances, mort- gages or voluntarily-bestowed liens of any sort are perfectly good, and the plaintiff's claim has never been more than an ordinary one. Even if the attachment has been dissolved for irregularities, and the defendant still remains the debtor of the plaintiff, he is but an ordinary debtor, and has been noth- ing more since the inception of the suit. AVith such result, the contingent lien is seen to have been no lien at all; so that, if, pending the suit, the garnishee had paid his debt to the defendant, or delivered property to the defendant, he would have disturbed no lien, and would not now be liable to the plaintiff. § 18. The retroaction is not to the date of the institution of the suit ; not to the date of the affidavit or other preliminary showing ; not to the issue of the process (except in a few states), but generally to the exact time when property was reached by direct attachment,- or by service of garnishment upon a third person who really has property of the defendant in pos- session subject to execution in case the judgment sought should be obtained, or who owes the defendant a debt subject to col- lection by the attaching creditor after such judgment shall have been obtained.* The garnishee's affirmative answer to the question whether he has money or goods of the defendant may be made after this date, but the retroaction of the judg- 1 Suydam et al. v. Huggeford, 23 § 404, though that sectioii does not Pick. 465, 470; Clapp v. Bell, 4 Mass. seem to warrant very pointedly such 99 ; Johnson v. Edson, 2 Aikens, 299 ; construction. Formerly, the doc- O'Connor V. Blake, 29 Cal. 312 ; Lamb trine was that the retroaction was V. Belden, 16 Ark. 539 ; Hale v. Cum- only to the time of the levy ; so that mings, 3 Ala. 398. there was no prior lien. Merrick v. nicBride v. Ham, 48 Iowa, 151; Hutt 15 Ark. 343; Lamb u. Belden, IG Wright r. Smith, 11 Neb. 341. Arkan- id. 539; Frellson v. Green, 19 id. 376. sas may bo now ranked among the 3 Fitch i". Waite, 5 Conn. 11; Gates exceptional states in this respect v. Bushnell, 9 id. 530 ; Sewell v. Sav- (Bergman v. Sells, 39 Ark. 97), so far age, 1 B. Monroe, 260 ; Nutter v. as direct attachment is concerned, Connett, 3 id. 199; Zeigenhagen v. though not when there is attachment Doe, 1 Ind. 296 ; Tafts v. Manlove, 14 in the hands of third jiersons by pro- Cal. 47; Kuhn v. Graves. 9 la. 303; cess of garnishment. This has been Stockley v. Wadman, 1 Hous. (Del.) held in exposition of Gantt's Dig., 350; Pond v. Griffin, 1 Ala. 678; 12 THE REMEDY OUTLINED. [§18. ment is not to the time of answering but to the time of service. From the moment of service the lien is perfect — jDrovided judgment recognizing the lien shall follow.^ From that moment the lien is nothing — provided no such judgment shall follow. The garnishee cannot know the future contin- gency. He is bound to hold the money, or goods, or indebted- ness, subject to the order of court. The defendant is debarred from regaining his attached property or collecting his attached dues, till the event of the judgment shall have shown whether there is a lien or not. The plaintiff cannot enforce the lien till matured by judgment. If the lien does not become perfected by judgment, the creditor is responsible m damages for his false assumption of tlie lien, his abuse of the extraordinary process employed and his perversion of the law.^ The defendant can sell his attached property, subject to the attachment lien.^ The attachment does not dislodge any ex- istino- lien.^ Haldeman v. Hillsborough & Cin. R. R. Co., 2 Handy, 101 ; Crownin- shield V. Strobel, 2 Brevard, 80 ; Rob- ertson V. Forrest, id. 466; Bethune v. Gibson, id. 501 ; Crocker v. Radcliff, 3 id. 23 ; McBride v. Harn, 48 Iowa, 151; Stiles v. Davis, 1 Black, 101: Kennedy v. Brent, 6 Cr. 187 ; Hacker V. Stevens, 4 McL. 535. 1 Brown u Williams, 31 Me. 403; Wilson V. Forsyth, 24 Barbour, 105 ; Am. Ex. Bank v. Morris C. & B. Co., 6 Hill (N. Y.), 362 ; Stephen v. Thayer, 2 Bay, 272 ; Martin v. Dryden, 6 111. 187; Redus v. Wofford, 4 Smedes & M. 579; Tappan v. Harrison, 2 Humphreys, 173; Lackey i'. Seibert, 23 Mo. 85 ; Hannahs v. Felt, 15 la. 141 ; Cockey v. Melne, 16 Md. 200 ; Bagley v. Ward, 37 Cal. 121.' 2 Hardeman v. Morgan, 48 Tex. 103 ; Lowenstein v. Monroe, 55 Iowa, 82 ; Turner v. Lytle, 59 Md. 199; Ray- mond V. Green, 12 Neb. 215; Boyer v. Clark, 3 Neb. 161 ; Stevens v. Able, 15 Kan. 584 ; Read v. Jeffries, 16 Kan. 534 ; Wagiun- v. Stocking, 22 Ohio St. 297 : Dent v. Smith et al, 53 Iowa, 262; Campbell v. Chamberlain, 10 Iowa, 337 ; Carey v. Gunnison, 51 id. 202; Vorse v. Phillipe, 37 id. 428; Bunt V. Rheum, 52 id. 619 ; Carver v. Shelley, 17 Kan. 472 ; Nolle v. Thomp- son, 3 Met. (Ky.) 121 ; Smith v. Story, 4 Humph. 169 ; Spaulding v. Wallett, 10 La. Ann. 105; Moore v. Willen- berg, 13 id. 22 ; Accessory Co. v. Mc- Curran, id. 214; McDaniel v. Gard-, ner, 34 id. 341 ; Dickinson v. Maynard, 20 id. 66 ; Harger v. Spoflford, 46 Iowa, 11 ; Kinsey v. Wallace, 36 Cal. 462 ; Cochrane v. Quackenbush, 29 Minn. 376 ; Clark v. Brott, 71 Mo. 473 ; Frank V. Chaffe, 34 La. Ann. 1203; post, ch. 25. 3Waxe V. Russell, 70 Ala. 174: Klink V. Kelly, 63 Barb. 622 ; Smith V. Clinton Bridge Co., 13 Bradw. 572 ; Franklin Ins. Co. v. West, 8 Watts & S. 350 ; Stevenson v. Prather, 24 La. Ann. 434; Ozinore v. Hood, 53 Ga. 114. 4 Meeker v. Wilson, 1 Gall. 419; Frazier v, Wilcox, 4 Rob. (La.) 517 ; g li>-] PKE-EXISTING LIENS. 13 It does not affect interests of the defendant acquired after the levy.^ lY. Pke-existing Liens. § 19. Conventional liens. — "When contracting parties have made a lien enforceable by an established remedy (such as a mortgage) there is no need of the creation and vindication of another. Conventional liens are not enforceable by attach- ment.- If the creditor has a rioht hi a thino; arisino- from contract, to the amount of the debt or less, he may have it taken from the debtor and he may make his money out of it ; he is in no danger of its being spirited away before he can have alien matured by judgment; he has no occasion to in- voke an extraordinary remedy to secure it.^ Should he be permitted to resort to attachment, he need not aver his con- ventional lien in his pleadings; he may as well abandon it.* In some states a creditor already secured by lien is expressly inhibited from proceeding under the attachment statute to recover his claim.^ In all, the vindication of conventional liens by attachment is without statutory warrant. Tennant r. Watson (Ark.), 24 S. W. 495. 1 Handly v. Pfister, 39 Cal. 283. 2 Thornton v. Wood, 42 ]Me. 282; Lincoln v. White, 30 Me. 291 ; Smith V. People's Bank, 24 Me. 185 : Porter V. Brooks, 35 Cal. 199 ; Van Wyck v. Bauer, 9 Abb. Pr. N. S. 142. Compare Harris v. Daugherty, 74 Tex. 1 ; 11 S. W. 921. The right to attach can- not be created by agreement. Dogan V. Cole, G3 Miss. 153. 3 While an existing lien is not dis- lodged by attaching (Caufield v. Mc- Laughlin, 10 Martin (La.), 48 ; DeWolf V. Dearborn, 4 Pick. 466), it is not aided by this process ; and if one who has the vendor's lien does not enforce it but proceeds by attachment, a pur- chaser at the attachment sale cannot avail himself of any benefit from such lien, Myers v. Paxton (Tex.), 23 S. W. 284 See Harris v. Tenney, 85 Tex. 254. No right to attach- ment, in aid of a promissory note suit, arises from the fact that a mort- gage given to secure the note has been prescribed. Page v. Latham, 63 Cal. 75. *The creditor may waive his lien and attach. Whitney v. Farrar, 51 Me. 418; Libby u Cushman, 29 Me. 429; Buck v. Ingersoll, 11 Met. 226. 5 The creditor's holding collateral security has been held to be no im- pediment to his attaching. Taylor v. Cheever, 6 Graj-, 146; Whitwell v. Brigham, 19 Pick. 117; Cornwall v. Gould, 4 Pick. 444. Compare Chap- man V. Clough, 6 Vt. 123 ; Cleverly v. Brackott, 8 Mass. 150. Ordinarily, claims already secured are not to be aided bv attachment. Murphy v. Montandon, 2 Idaho, 1048 ; 29 P. 851 ; Willman v. Friedman (Idaho), 35 P. 37. 14 THE REMEDY OUTLINED. [§§ 20-22. § 20. Claims secured collaterally. — The prevalent rule is that when the creditor has security for his claim, he cannot resort to attachment ; but it has been held that he may do so when only a part of his claim is secured.^ In such case, the attachment may be for the wiiole amount of the debt sued upon.^ When collaterals given to secure a debt have depre- ciated without the fault of the creditor after he has accepted them, he may attach in California — but not if the security was inadequate when taken.* § 21. JExceptional authorisations. — Contrarj^ to the us;ial rule, attachment is authorized in some states to enforce cer- tain specific liens designated in the statutes, and arising by ^ operation of law. In such suits the lien-bearing property must be described in the petition and affidavit; or* in one with a reference to the other. Description is essential.* For in- stance, if the vendor proceeds by attachment to recover the purchase-money, he must describe the property sold, upon which his lien rests,^ as w^ell as state the price at which it was sold.^ § 22. There are authorizations for attachments, when the suit is for the recovery of property ordered by the court to be delivered to the plaintiff, but which has been wrongfully disposed so that the order cannot be executed ; when the suit is to enforce a builder's, mechanic's or laborer's lien; when it is to recover for supplies to a steamboat run on the waters of the state, etc. In Maine there are various statutory liens, enforceable by attachment, though the object is merely to vindicate the pre- existing right; such as the lien for ship-building materials;^ for wages ; ^ for cut granite, etc. ; ^ for manufactured slate, etc.^" 1 Branshavv v. Tinsley (Tex.), 23 S. Waxelbaum v. Paschel, 64 Ga. 375. W. 184. See Wicker v. Scofiekl, 59 Ga. 210. 2 Porter v. Brooks, 35 Cal. 199; 6 Camp w Calm, 53 Ga. 558. Hower v. Falconer, 60 N. H. 203 ; " Fuller u Nickerson, 69 Me. 228 ; Buck V. Ingersoll, 11 Met. 226; Whit- Murphy v. Adams, 71 Me. 113: "log well V. Brigham, 19 Pick. 117; Beck- lien." with V. Sibley, 11 Pick. 482. See Gess- 8 Flood v. Randall, 72 Me. 439 ; Hay- ner v. Palmater, 89 Cal. 89. wood v. Cunningham, id. 128. 3 Barbieri v. Ramelli, 84 Cal. 154. ^ Collins Granite Co. v. Devereux, 4 Evans v. Parks (Miss.), 13 S. 240. 72 Me. 422. 5 Bruce v. Conyers, 54 Ga. 678 ; i" Union Slate Co. v. Tilton, 73 Me. 207 ; Stat. 1876, S 90. § 23.] COXSTRUCTIOX. 15 Suits upon such lions differ essentially from an attachment suit on an ordinary debt to create a lien ; yet the courts hold that when such suits have been brought " and the liens cannot be upheld, the attachments may still be considered valid as those of general attaching creditors not seeking to enforce liens." ^ In Michigan, Wisconsin and some other states, laborers, who get out timber for sawing, have what is called a "log lien," which they may enforce by attachment.^ And there are liens upon crops in some states and like authorizations to be noticed in place. The above illustrations are all exceptional to the prevalent rule and practice w'hicli confines the remedy to ordinary claims, and denies it when the suit is against specific prop- erty.^ "V. CoNSTRUCTIOlSr. § 23. Strict. — Attachment, considered as a means of creat- ing alien in favor of an ordinary debtor ; as a preliminary levy anticipatory of execution after judgment; as an innova- tion on common law, and as the means by which extraordi- nary jurisdiction is acquired and exercised, is a harsh and exceptional remedy; and because it is such, the statutes au- thorizing it should be strictly construed.* The same rule of construction applies to garnishment.^ 1 Union Slate Co. v. Tilton, 73 Me. Great Western, etc. Co. (W. Va.), 19 207 ; First National Bank v. Redman, S. E. 510 ; Crim v. Harmon, 38 W. Va. 57 Me. 405 ; Perkins v. Pike, 43 Me. 596 ; Casner's Adm'r v. Smith, 36 W. 141 ; Redington u Frye, 43 Me. 578. Va. 788 ; Claflin v. Steenbock, 18 Grat. 2 Howell's Mich. Stat, g§ 8412- 842 ; May v. Baker, 15 111. 89 ; Moore v. 8427; Woodruff v. Ives, 34 Mich. Hamilton, 7 111. 429 ; Poole t\ Webster, 320 ; Shearer v. Anderson (Wis.), 47 3 Met. (Ky.) 278 ; Haywood v. Collins, N. W. 360. 60 111. 328 ; Wilkie v. Jones, 1 Morr. 3 Gates V. Bennett, 33 Ark. 475 ; (la.) 97 ; Musgrave v. Brady, id. 456 ; Hodo V. Benecke, 11 Mo. App. 6. Leake v. Moorman, Phill. (N. G.) L. *Delaplaine v. Armstrong, 21 W. 168; Devries v. Summitt, 86 N. C. Va. 211; Aultmeyer v. Caulfield, 37 126; Humphrey v. Wood, Wright W. Va. 847 ; U. S. Baking Co. v. (Ohio), 566 ; Myers v. Smith, 29 Ohio Bachman, 38 W. Va. 84 ; Ballard v. St 125 ; Wooster v. McGee, 1 Tex. 5 Crisp V. Fort Wayne, etc. R Co. Co., 50 Mich. 358; Sievers v. W^heel (Mich.), 57 N. W. lOoO ; Ford n Dock Co., 43 Mich. 275. 16 THE REMEDY OUTLINED. [§24. The doctrine of strict construction, with regard to attach- ments, is confined to the authorization of the remedy. There being no hiw for such procedure except that of the statute under which it is prosecuted, and the statutory authorization being out of the ordinary, as above expressed, the doctrine of strict construction apphes when the authority to proceed is in question. But when there is clearly a grant of authority, the questions which arise in practice thereunder, such as those concerning evideilce and the like, are not to be governed by the rule. Even the statutes themselves will be liberally con- strued in the interest of justice and against fraud, when the authorization of the remedy is clear.^ § 24. There is a marked difference between the evidence required for the issue of the writ, and that for the mainte- nance of the attachment. Statutes which authorize the issue upon the creditor's oath to his belief of the existence of the 17 ; Marks v. Abraham, 53 Tex. 264 ; Caldwell v. Haley, 3 Tex. 317; Mau- ley V. Zeigler, 23 Tex. 88 ; Bucking- ham t?. Osborne, 44 Ct. 133; Becker V. Bailies, 44 Ct. 167 ; Colt v. Ives, 31 Ct. 25 ; Montpelier, etc. R. R. Co. v. Coflfrin, 52 Vt. 17 ; Barksdale v. Hen- dree, 2 Patt. & H. (Va.) 43; Hopkirk V. Bridges, 4 H. & M. 413 ; McPher- son 17. Suowden, 19 Md. 197; Smith V. Easton, 54 Md. 138 ; Grace v. Rit- tenberry, 14 Ga. 232; Waxelbaum v. Paschal, 64 Ga. 275; Metts v. Ins. Co., 17 S. C. 120 ; Clausen v. Fultz, 13 S. C. 476 ; Buckley v. Lowry, 2 Mich. 418; Van Norman v. Jackson Cir- cuit Judge, 45 Mich. 204 ; Fairbanks V. Bennett, 52 Mich. 61 ; Graham v. Burckhalter, 2 La. Ann. 415 ; Plant- er's Bank v. Byrne, 3 id. 687 ; Wilson V. Churchman, 4 id. 452 ; Shirley u Owners, 5 id. 260 ; Stockton v. Dou- ney, 6 id. 581 ; Boardman v. Glenn, 7 id. 581 ; New Orleans v. Garland, 11 id. 438; Gordon v. Baillie, 13 id. 473 ; Price u Merritt, id. 526 ; Frell- son V. Stewart, 14 id. 832; McDan- iel V. Gardner, 34 La. Ann. 342; Wright V. Smith, 66 Ala. 545 ; John- son V. Hannah, id. 137 ; Ware v. Seasongood, 92 Ala. 155 ; Saunders v. Cavett, 38 Ala. 51 ; Smith v. Moore, 35 Ala. 76 ; McKenzie v. Bentley, 30 Ala. 139 ; Atkins v. Kinnan, 20 Wend. 241; Pierce v. Smith, 1 Minn. 82; Anerbach v. Hitchcock, 28 Minn. 73 ; Hines v. Chambers, 29 Minn. 7; Bundrem v. Denn, 25 Kan. 430; Clark V. Brott, 71 Mo. 473 ; Ander- son V. Coburn, 27 Wis. 558 ; State v. Cornelius, 5 Oregon, 46 ; Wescott v. Archer, 12 Neb. 345; Creighton v. Kerr, 1 Colo. 519; Moresi v. Swift, 15 Nev. 215 ; Spiegelberg v. Sullivan, 1 New Mex. 575 ; Bottom v. Clarke, 7 Cush. 487 ; Gregg v. Nilson, 8 Phila. 91 ; Sheedy v. Second National Bank, 62 Mo. 17 ; Pond v. Baker, 55 Vt. 400. 1 Bank of Augusta v. Conrey, 28 Miss. 667 ; Bryan v. Lashley, 21 id. 284 ; Flake v. Day, 22 Ala. 132 ; First N. Bank v. Hanchett, 126 111. 505 ; Burnellu Robertson, 10 111. 282 ; Han- nibal & St. Joe R. R. Co. V. Crane, 102 111. 249 ; Peoria Ins. Co. v. Warner, 28 111. 429 ; Girard Life Ins. Co. v. Field, 45 Pa. St. 132. § 25. J CONSTKUCTION. 17 necessary grounds do not warrant the sustaining of the attach- ment upon merely such belief. The ])laintiff is bound to pro- ceed contradictorily with the defendant and to establish the fact of the existence of some statutory ground and cause of action by competent testimony,^ Or, if the defendant is not in court to be proceeded with contradictorily, the plaintiff must prove the existence of the fact or facts which he had previously believed to be true, before he can have default con- firmed and final judgment rendered Avith privilege upon the property attached. In making further proof, upon traverse of the affidavit, the burden of proof is on him to show that the necessary facts constituting ground for attachment and cause of action are true. He must then establish, not that he believed, but that the fact was that the debtor had ab- sconded, was about to abscond, was fraudulently concealing property, or whatever statutory ground he may have declared upon. § 25. At this stage, the court is in the exercise of jurisdic- tion previously acquired through strict compliance with statu- tory requisites; so now an error committed with reference to the evidence given to sustain the attachment or any other ille- gal use of power vested, though specially given by statute, would not be void but only voidable ; would not subject it to subsequent collateral attack, but would be reviewable only in an appellate court. 1 Sublett V. Wood, 76 Va. 318. CHAPTER II. STATUTORY GROUNDS. L The Usual Conditions g§ 26-31 II. NON-EESIDENCY 32-43 III. Absence and Non-residence 44-49 IV. Debtors Absconding or Concealing Themselves to Avoid Process 50-56 V. Fraudulent Disposition of Property to Avoid Creditors 57-72 VI. Exceptional Grounds 73-76 I. The Usual Conditions. § 26. JEffective 'process. — Attachment is based on the as- sumed indebtedness of property; and procedure against it is authorized when the personal debtor cannot be reached effect- ively by ordinary process. With the exception of some anom- alous provisions, all the grounds for attachment may be re- duced to one: the inadeqliacy of ordinary 2')rocess. The several circumstances in which ordinary process is deemed inadequate, and the extraordinary authorized by stat- ute, may be reduced to three : First. The non-residency or permanent absence of the debtor. Second. The debtor's absconding or concealing himself to avoid summons. Third. His fraudulent disposition of his property. § 27. Grounds in detail. — These three general grounds are subdivided in the statutes so as to present shades of difference. Except in a few states in which attachment issues as a matter of course in any personal action, the statutes generally base the remedy on the one condition above mentioned, and specify minutely its various ramifications, which may be summarized as follows : I. Relating to the person of the debtor. 1. When he is not a resident of the state. 2. When he resides out of the state. 3. When he removes from the state. § 27.] USUAL CONDITIONS. 19 4. When he is about to remove from the state. 5. "When he is about to remove from the state with the intent to change his domicile. 6. TThen he has left the state with intention to defraud his creditors. 7. "When he has left the county to avoid summons.^ 8. "When he absconds from the state. 9. "When his whereabouts are unknown. 10. When he has left the state with the intention of having his property removed from the state. 11. AVhen he has been absent for a time specified by the statute. 12. "When the defendant is a foreign corporation. 13. W-hen the defendant secretes himself so that he cannot be served. 14. When he conceals himself for the purpose of avoiding summons. 15. When he stands in defiance of the officer. II. Kelating to the liable property of the debtor. 1. When the debtor removes his property from the state. 2. When he has removed a material part of it, not leaving enough to pay the creditor. 3. When he is about to remove his property from the state. 4. When he is about to remove his property out of the jurisdiction of the court. 5. When he is about to remove his property out of the county. 6. When he has disposed of his property fraudulently. Y. When he has conveyed his property to hinder and de- fraud his creditors. S. When he is about to convey his property to hinder and defraud them. 9. When he fraudulently has assigned it. 10. When he fraudulently has assigned or conveyed or con- cealed it within a time specified by statute. 11. When he conceals his property. 12. When after an order to deliver personal propert}' to his creditor he has so disposed of it as to defeat the order. 1 Arkansas, Nebraska, Ohio and Wyoming. 20 STATUTOEY GROUNDS. [§ 28. 13. "When he fraudulently withholds money or property. 14. "When he is about to convert his property (or a part of it) into money to defeat his creditors. 15. When he wrongfully has converted his personal prop, erty. 16. When he has rights in action which he conceals. Most of the above grounds are found set forth in all the attachment statutes, though with some variety of expression. All readily may be arrayed under the three heads above stated, and all are forms of the one ground : the inadequacy of or- dinary process. § 28. Anomalous grounds. — ^ There are authorizations of attachment under circumstances which have no reference to the inadequacy of ordinary process. They are found in the statutes of a few states. They may be stated as a third class. III. Exceptional attachments. 1. When the debt sued upon was contracted fraudulently.* 2. When the debt is due for property obtained by the de- fendant under false pretenses.^ 3. When damages are claimed for injuries caused by his felony or misdemeanor.^ 4. When the debtor has failed to pay on delivery after contracting to pay then.^ 5. When, since contracting the debt, he has owned prop- perty, or received income, which he has not applied to the payment though requested to do so.^ 6. When action is brought against the principal on an offi- cial bond, for money due the state, or due a county or mu- nicipality in the state.^ 7. When the defendant incurred the obligation in conduct- ing steamboat (or other water-craft) business on the waters of the state,'' 8. When the debtor has refused or failed to pay for serv- 1 Kansas, Maryland, Michigan, Min- ^ Kansas and Missouri, nesota, Mississippi, Missouri, Ne- * Kansas. braska. Oliio, Oregon, Pennsylvania, ^ Rhode Island. Rhode Island, Utah, West Virginia, 6 Wisconsin. Wisconsin and Wyoming. '' Mississippi. 2 Indiana, Texas, North Dakota and Arizona. §§ 29, 30.] USUAL CONDITIONS. 21 ice rendered or labor done — the pay being due on the com- jiletion of the work.^ 9. When the debtor dies out of the state, leaving property within it.-' 10. AVlien he has secretly removed his property ijito the state, and the cause of action arose out of the state.' § 29. When ordinary process is precarious. — It must be remarked that there are many instances in which ordinary process would prove adequate, though the debtor be a non- resident, or an absconder or a concealer of property. Though residing out of the state, the debtor may be present and amenable to ordinary process ; though absconding, concealing or secreting himself, he might be cited by leaving summons at the place of his usual abode with some member of his fam- ily competent to receive it for him ; though fraudulently dis- posing of some of his property, he may have other property liable to execution ; though having the intent to defraud, he may not reall}'' carry it out. Under all such circumstances, ordinary process might prove sufficient, but the law allows the extraordinary, not merely when the ordinary process would certainly prove inadequate, but also when its result is precarious.'* § 30. Kindred grounds. — Several of the statutes couple ab- sence with non-residence; and, where only the latter term is used, it is construed by the courts of some of the states to include the former. Absconding, either by express enact- ment or by judicial construction, is in many of the states treated as the hiding or running-away of the debtor under such circumstances that he cannot be summoned even indi- rectly. Secreting or otherwise fraudulently disposing of prop- erty is usually qualified so as to show that it is such secreting that there is nothing left or likely to be left out of which the creditor may make his money by execution after judgment under ordinary process. Under statutes thus expressed or construed, it ought to be always easy to determine, from the creditor's affidavit, whether there is any necessity for the issuance of the conservative writ,-^ 1 Colorado. is a ground in Kentucky. Dunn v. -Tennessee. Mc Alpine (Ky.), 18 S. W. 363. 3 Missouri. 5 a creditor holding a note against * "Collection endangered by delay" joint maimers sued one by attach- 22 STATUTORY GROUNDS. [§§ 31, 32. To secure the creditor's rights, and to insure the execution of any judgment he may obtain, when the condition of the debtor is such that there is great improbability that his prop- erty will remain answerable to judgment following ordinary process, the legislator authorizes tlie creation of an incipient specific lien by means of attachment, and thus conserves the debtor's property w^hen attached — putting it beyond the power of the debtor to incumber or alienate it to the prejudice of the creditor. § 31. Plaintiff^ s sliowing. — In the incipiency of the attach- ment suit, when the writ is applied for, when only the creditor is before the court, nothing can be known of the facts except by his own ex parte showing; hence, what he swears to be true and obligates himself by bond to make good must consti- tute the data upon which to decide whether he is entitled to the issuance of the extraordinary process. Most of the state statutes authorizing attachment make the creditor's sworn statement the criterion by which the inadequacy of the or- dinary process and the necessity for the extraordinary are to be determined; or, what is equivalent, they make the affi- davit the test whether the debtor is properly charged to be one whose property is attachable under the law and ought to be conserved by having a specific lien immediately put upon it. The testing of the truth of such averment comes at a later stage of the case. It will be seen that it is the creditor's as- sertion, belief or even fear which oftentimes controls the ques- tion in the first instance ; and the rule is, not that the debtor must certainly be a non-resideni, an absconder or concealer of property, but that he must be duly charged as such. II. NoN-EESIDENCY. § 32. Uniformity. — All the states authorize attachments against the property of non-resident debtors. There is a general uniformity in the statutes, so far as concerns the right of action with the conservative remedy, against debtors not residing in the state in Avhich the suit is instituted, who have propert}'' within it subject to execution for debt. The principle is ment; but, as he could have collected necessary. Francis v. Burnett, 84 by suing others by ordinary process, Ky. 23 ; Civ, Code Ky., g 194 (2). the attachment was dismissed as un- § 33.] NON-KESIDEXCY. 23 everywhere recognized that the property is subject to the ju- risdiction though its owner cannot be reached by process. Discrimination against non-residents is constitutional; the attachment of a non-resident's property when that of a resi- dent would not be liable is not violative of the fourteenth amendment.' The debtor, whether living abroad or in a neighboring state, is deemed a foreign debtor. The attachment against his prop- erty, when he is not found in the state where the suit is brought and served with process, but is merely notified by publication, is a foreign attachment. The distinction between foreign and domestic attachment is not observed b}'^ all of the states. Where it is observed, the former is usually associated with garnishment or the trustee process. However, in all the states, the creditor has his remedy by attachment against the property of his non-resident debtor, whatever the term by which the process is designated. The process is none the less that of foreign attachment by reason of the avoidance of the term. § 33. Term used in statutes. — The statutes designedly era- ])loy the term " non-resident " instead of " foreign-resident ; " for the condition upon which attachment issues is, not that the debtor be a resident of another state or country, but that he be not a resident of the state in which the suit against him is brought and the attachment issued. Non-residence means not residing in the state. A debtor may be absent from the court's territorial jurisdiction, yet be a resident of the state.- The statutes do not all use precisely the same phraseology in au,thorizing attachment against the property of non-resi- dents. The words employed in many of the statutes are, " When the defendant is a non-resident of this state ; " in others, "When the defendant is not a resident," "When the defendant resides out of the state," and " When the defendant is not an inhabitant," etc. ; which are equivalent expressions as they appear in their respective contexts. In Michigan the plaintiff must swear that his debtor is not a resident of the state and has not resided therein for three months preceding 1 Pyrolusite v. Ward, 73 Ga. 491. - Chariton County v. Moberly, 59 Mo. 238. 24 STATUTORY GEOUNDS. [§ 34. the making of the affidavit. In other states there are qual- ifications. Some of the statutes expressly mention foreign corpora- tions, while others may be understood to include them under general designations construable as including artificial per- sons.^ § 34. The prominent idea of the various statute authoriza- tions, so far as the ground under consideration is concerned, is that the debtor must be a non-resident of the state where the attachment is sued out — not that he must be a resident elsewhere.- He need not be a foreign resident. He may be a cosmopolitan having no fixed place of abode. He may be a constant traveler claiming no home. He may be personally amenable to no particular jurisdiction. The essential charge is that he is not residing or living in the state ; that is, he has no abode or home within it where process may be served so as eft'ectuall}^ to reach him. In other words, his property is attachable if his residence is not such as to subject him per- sonally to the jurisdiction of the court, and place him upon equality with other residents in this respect. The debtor may be the subject of a foreign power; he may be a citizen of a state other than that in which the attachment suit is instituted ; he may not onlv be a citizen and a voter there, but his domicile or principal residence may be there; yet if he has a residence also in the place where the suit is brought, at which he may be duly served with ordinary pro- cess, his property ought not to be subjected to attachment. A place of abode at which a summons may be lawfully served "is the condition on which process of attachment cannot be issued. If a debtor has not such a residence he is a non- resident within the statute and may be proceeded against by 1 North Ala. D. Co. v. Orman, 55 14 La. 415; Hazzard t'. Agricultural Fed. 18; Ala. Code, §§ 2930, 2940; Bank,^ 11 Rob. (La.) 326; Libbey v. Phillipsburg Bank v. Lackawanna Hodgdon, 9 N. H. 394; Bushnell v. R. R. Co., 27 N. J. L. 129 ; Cooke Com. Ins. Co., 15 S. & R. 174 ; Plant- V. State National Bank, 50 Barb, ers' & Merchants' Bank v. Andrews, 339; Bowen v. First National Bank 8 Porter, 404; Union Bank n United of Medina, 34 How. (N. Y.) Pr. 408; States Bank, 4 Humph. 369; St. Louis Mineral Point R. R. Co. v. Keep, P. Ins. Co. v. Cohen, 9 Mo. 421. 22 111. 9; S. C. R. R Co. v. McDonald, 2 Hickson v. Brown (Ga.), 17 S. E. 5 Ga. 531 ; Martin v. Branch Bank. 1035. § 35.] NON-KKSIDENCV. 25 attachment. . . . The use of this writ when the defend- ant is within reach of ordinary process is wholly inconsistent with the spirit and design of the statute." ^ § 35. Temporarilij present — It is true that a debtor may be within reach of ordinary process by being temporarily within the state where the suit is brought, and yet his pro])- erty be amenable to attachment ; for he, being a non-resident, could not defend on the ground that he was actually served with summons.'- The rule is that he must have an abode within the state where process can always legally reach him in order to be exempt from this remedy.- The accident of finding him within the jurisdiction will not deprive the plaint- iff of his right to create a lien upon the debtor's property situated in the state. ^ Even if the debtor has a temporary residence in the state where the suit is brought, it has been held that if he is absent, and has his principal and usual place of abode in another state, he may be sued by attachment as a non-resident.'* Eesidence must be permanent — not tempo- i"ary — in contemplation of the attachment statutes.^ One may have a temporary abode at a hotel or boarding-house ; but, if it is not under such circumstances that the leaving of a sum- mons there, addressed to him, with a person of proper age, would be legally binding upon him, and would be such service as to enable the officer to make a return that would be as binding upon the sojourner as it would be upon any resident- • Herbert v. Herbert, 50 N. J. Eq. Houghtou v. Ault, id. 77 ; Lee v, 4G7 ; Baldwin v. Flagg, 43 N. J. L. Stanley, 9 id. 272. 495; Perrine v. Evans, 35 id. 221; ^ Burcalow v. Trump, 1 Houston, Stout V. Leonard, 87 id. 492; City 363; Greene n Beck with, 38 Mo. 384; Bank v. Merrit, 1 Green, 131 ; Bron- Jackson v. Perry, 13 B. Mon. 231 ; son V. Shinn, id. 250 ; Clarke v. Li- Malone v. Lindle}', 1 Phila. 192; kens, 2 Dutch. 207; Phillipsburg Bryan u Dunseth. 1 Martin (N. S.), Bank ?•. Lackawanna R R Co., 3 id. 412; Rayne v. Taylor, 10 La. Ann. 206; Kuglar v. Shreve, 4 id. 129; 726. Boundred v. Del Hoyo, Spence, 333 * Stout v. Leonard, 37 N. J. L. 492 ; (or 20 N. J. L. 328); In re Alex. Murphy r. Baldwin, 11 Abb. Pr. (N. S.) Thompson, 1 Wend. 43; Haggart v. 407; Town v. Church, 2 Abb. Pr. Morgan, 5 N. Y. 422; Ellington v. 299 ; Cooke v. Appleton, 51 N. Y. 529 ; Moore, 17 Mo. 424; Brown v. Crane, Coffin r. Still, 5 N. Y. Civ. Proc. 261. 69 Miss. 678 ; Munroe v. Williams, 37 ^ Mitchell v. United States, 21 Wall. S. C. 81. 350 ; Cbesney v. Francisco. 12 Neb. -Murphy V. Baldwin. 41 How. Pr. 626; Long v. Ryan, 30 Gratt. 718; 270; Chaiue r. Wilson, 16 id. 552; Reed's x\ppeal, 71 Pa. St. 378. 26 STATUTORY GROUNDS. [§§ 36, 37. citizen thus served at his domicile, it is not such a residence as would exempt his property from attachment. The debtor may have a place of business within the state, with a clerk or agent representing him in his absence, yet if he has no place or abode within it where a summons may be left, as at the domi- cile of a citizen-resident, his property may be attached.^ A wife was held to be not within the statutory description, " one who regularly transacts business in person" in New York city, when she transacts it by her husband as her agent while she lives out of the city.- § 36. Question of fact. — The character of the residence, whether such as will exempt from attachment or not, is often a nice question of fact; but the law is that the debtor's prop- erty is attachable if he has not a place within the state where he is legally answerable for citation left for him there under circumstances which would constitute a lawful summons upon any citizen-resident if left at his domicile. And if he has such a place; if the fact of his having it is admitted, it does not matter that he has but recently acquired or established it. § 37. Intention to remain. — A new comer into the state, with the design of remaining, who has an abode at which a summons may be left so as to make legal service upon him, is a resident within the meaning of the attachment laws.^ He may not have acquired citizenship, he may have no intention of acquiring a political domicile, he may not have become even a resident for all intents and purposes ; yet if he has a home at which he may be reached by ordinary process at any time — (not for a brief period of a few days only) — he is not a non- resident in the sense in which the statutes employ the term. This is the true criterion by which to decide whether or not his property is attachable on the ground now under consider- ation : if the debtor has a place of usual abode in the state, at which ordinary process may be served, his property is not at- tachable as that of a non-resident ; but if he has not, it is attachable as such. 1 Chase v. Ninth Nat. Bank, 56 Pa. Swaney v. Hutchins, 13 Neb. 266 ; St. 355. See Watson v. Pierpont, 7 Heidenback v. Schland, 10 How. Pr. Martin (La.), 413. 477 ; Andrews v. Mundy, 36 W. Va 2 Bowman v. Perine, 23 Abb. N. C. 22. See Brunswick v. Mims (Ala.), 11 236 ; N. Y. Civ. Code, § 3169 (3). So. 302. 3 The People v. McCIay, 2 Neb. 7 ; § 38.] NON-KESIDENCY. 27 Intention to remain, on the part of one about to conic into the state, is of no signilicance when not accompanied with the acts of immigration and the establishment of a place of resi- dence;^ but as soon as he arrives with such intention, and establishes a home meant to be permanent, though he may be the lessee of the house in which he lives or a boarder, he is at once a resident within the purview of the attachment laws.'* On the other hand, the act of coming into the state is of no signilicance without the intent to stay. So if one leaves with the intent of changing residence, the change is of immediate effect,* but the intent, without leaving, docs not make him liable.* § 38. Domicile. — It is said that, in attachment law, domicile may be in one state and residence in another.'^ This should be understood as meaning that one's principal residence, where he may have citizenship and exercise political rights, may be in one state while he has such residence in another as to ren- der him susceptible of being served, with summons at the lat- ter and thus amenable to ordinary process there.^ Whether or not a man is a resident often depends upon peculiar cir- cumstances, and is determinable by the facts proved in the case, as is am])ly illustrated in decisions.^ The Wolfe's legal residence is fixed by that of her husband.'' • Hauson v. Graham, 83 Cal. 631 ; Hanovei* N. Bank v. Stebbins, 09 Adams v. Evans, 19 Kan. 174. Hun, 308. And, on the other hand, ' Chesney v. Francisco, 12 Neb. 626 ; he may be a non-resident though Kennedy v. BailUe, 3 Yeates, 55. poUtically domiciliated in the state. 3 Green v. Beckwith, 38 Mo. 384 Matter of Fitzgerald, 2 Gaines, 318 Boardman v. Bickford, 2 xVikens, 345 Burrows v. Miller, 4 How. Pr. 349 Kellar v. Carr, 40 Minn. 428. '• Wood V. Hamilton, 14 Daly, 41 ; Burrows i\ Jliller, 4 How. Pr. 349 ; Brown v. Aslibough, 40 id. 260 ; Whitlej'- V. Steakley, 3 Bax. 393 ; Mc- Thurneysseu v. Vouthier, 1 Miles, Collem V. White, 23 Ind. 43; Reed v. 422; Shipman v. Woodbury, 2 id. 67; Ketch, 1 Phila. 105 ; Taylor r. Knox, Clarke v. Pratt, 18 La. Ann. 102; 1 Dall. 158.; Farrow x\ Barker, 3 B. Kennedy v. Baillie. 3 Yeates, 55 ; Mon. 217; Nailoru French, 4 Yeates, Wells v. People, 44 111. 40; Smith v. 241; Pfoutz V. Comford, 36 Pa. St Story, 1 Humph. 420; Wheeler v. 420; Moore v. Holt. 10 Gratt 284. Degnau, 2 Nott & McC. 323; Bain- * HoUiday i\ Mansker, 44 Mo. App. bridge v. Alderson, 2 Browne, 51 ; 465 ; Lawson v. Adiard, 46 Minn. 243 ; Stratton v. Brigham, 2 Sueed, 420. Hanson v. Graham, 82 Cal. 631. 8 Baldwin v. Flagg, 43 N. J. L. 495 ; 5 Morgan r. Nunes, 54 Miss. 308. Hackettstown Bank v. Mitchell, 4 6 Krone v. Cooper, 43 Ark. 547; Dutch. (28 N. J. L.) 516; Hunt v. 28 STATUTORY GROUNDS. [§ 39. § 39. " Eesidence " as used in the statutes is not synonymous with " domicile." One may have several residences but he can have but one domicile. His principal residence is his domicile. It is not necessary that his principal residence should be in the state or within the jurisdiction where attach- ment is sued out in order to defend on the ground that he is a resident. If he has a place of abode there where he may usually be found, and where he would be bound by a summons left thereat, he is a resident within the meaning of the word as ordinarily used in the statutes. He can be reached by or- dinary process, and therefore the reason for employing the extraordinary one of attachment does not apply.^ On the- other hand, a debtor may have his property attached as that of a non-resident if he has not a place of abode in the state at which summons can be served,- though he has a resident rep- resentative authorized to act for him in his line of business (as before remarked) in the state in which the attachment is sued out.^ Difference between residence and domicile has been frequently pointed out in decisions.* When used unqualifiedly in the statutes on attachment, "residence" usually means "home" or "abode;" and "resi- dent " means " inhabitant." ^ Hunt. 72 N. Y. 217 ; SomeiviUe v. Abb. Pr. (N. S.) 407 ; 41 How. Pr. 270 ; Somerville, 5 Ves. 787 ; Greene v. Matter of Thompson, 1 Wend. 43. Greene, 11 Pick. 409; Hanover v. ^ See Fielding v. Lucas. 37 N. Y. Turner, 14 Mass. 281; Cambridge 197. V. Charlestown, 13 id. 501; Williams * Wolf v. McGavock, 28 Wis. 516; t\ Whiting, 11 id. 424; Knox v. Alston v. Newcomer, 42 Miss. 186; Waldoborough. 8 Greenl. 453 ; Swa- Dorsey v. Kyle, 30 Md. 512 ; Weber ney v. Hutchins, 13 Neb. 266. v. Weitling, 8 C. E. Green, 441 ; Fos- 1 Brundred v. Del Hoyo, 20 N. J. L. ter v. Hall, 4 Humph. 346 ; Haggart 328; Ellington v. Moore, 17 Mo. w. Morgan, 1 Selden, 422; Weitkamp 424 V. Loehr, 53 N. Y. Superior Ct. 79. ^BaldwinnFlagg, 43N. J. L.495; 5 Barnefs Case, 1 Dall. 153; Lyie Clark V. Likens, 26 id. 207 ; Stout v. v. Foreman, id. 480 ; Rifiewick r. Leonard, 87 id. 492. A debtor having Davis, 19 Md. 82 ; Matter of Wrigley, a residence in New Jersey which is 8 Wend. 184 ; Harvard College r. not his usual place of abode may be Gore, 5 Pick. 879 ; Roosevelt v. Kel- sued by attachment there, as a nou- logg, 20 Johns. 208 ; Boardman v. resident, if absent from the state at Bickford, 2 Aik. (Vt.) 345; Wiltse the time — he having another resi- r. Stearns, 13 Iowa, 282; Guise v. dance beyond the state. So, also, in O'Daniel, 1 Binney, 349; Catlin r. New York. Murphy v. Baldwin, 11 Gladding, 4 Mason, 308; Inhabitants § iO.] NON-KESIDENCT. 29 AVith such definition, it is not insistent to say that one may have residence in a state without citizenship. It may be cor- rectly said that attachment against the property of one absent from his domicile and out of the state in which it is located may be maintained as against a " non-resident," where the statute provision uses the term so as to signify one not act- ually present and residing in the state when the writ is issued.^ The phrase in a statute : " If the defendant is not in this state," has been held to apply only to a non-resident ; not to one temporarily absent.'^ §40. Business place. — The debtor's business establishment does not determine his place of residence. The fact that one does business wholly or mainly within a certain state is a cir- cumstance to be considered, with other facts, in determining his intentions and his actual residency. A business establish- ment alone does not constitute a residence, which is a place of abode ; ^ and the circumstance that a merchant does business in one state will be entitled to no consideration in determining whether his property is liable to attachment, if he keeps his home, at the same time, in another state.^ One doing busi- ness for another may be liable to be sued by attachment in his individual capacity, while his principal is not thus liable though the summons be served on the ao-ent. The lessee of a railroad may be personally amenable to such suit, though the railroad corporation may be not liable.^ of Turner v. Inhabitants of Buck- sperrine v. Evans, 35 N. J. L. 221; field. 4 Greenleaf, 231. "Non-resident" means one who has 1 McKinley v. Fowler, 67 How. Pr. not his abode in the state : so attach- 388 ; Kellar v. Carr, 40 Minn. 428 ; meut may issue against the property Eberly v. Rowland, 1 Pearson (Pa.), of those who do business in the state 812 ; Munroe v. Frosh, 2 La. Ann. but have not their abode in it. See 902; Rayne v. Taylor, 10 id, 726; Robbins v. Alley, 38 Ind. 553; Mur- Haggart v. Morgan, 5 N. Y. 422; phy v. Baldwin, 41 How. Pr. 270; Sandel v. George, 18 La. Ann. 526; Cooke t?. Appleton, 51 N. Y. Superior Risewick v. Davis, 19 Md. 82 ; Har- . Ct 529. Compare Coffin v. Stitt, 5 N. vard College v. Gore, 5 Pick. 379 ; Y. Civ. Proc. 261 ; Tower v. Church, Frost V. Brisben, 19 Wend. 11 ; Mat- 2 Abb. Pr. 299. ter of Wrigley, 4 Weud. 608: 8 id. ^Wallace v. Castle, 68 N. Y. 370. 134; Matter of Thompson, 1 Wend If the debtor resides in another state 43 ; Morgan v. Nuues, 54 Miss. 308. he is not to be deemed a resident of 2 Potter V. Sanborn, 49 Ct. 452. in New York because he has a place of exposition of Ct Geul. Stat, p. 419, business there. g 19. s Breed v. Mitchell, 48 Ga. 533. A 30 STATUTORY GROUNDS. [§§ 41, 42. § 41. It is not to be inferred from the fact that the general office of attachment is to meet the want of a creditor when ordinary process will not avail him, that therefore it is in- variably true that a non-resident cannot be proceeded against by the attachment of his property when he is temporarily present and njay be summoned. The general office is as stated ; the reason which underlies it is of general application ; the non-resident is ordinarily beyond the reach of process so that the general rule has such reason for its existence. The statutes generally make no exception in case of the tempo- rary presence of the non-resident ; and in such case, attach- ment lies against his property as though he were in a foreign jurisdiction.^ Indeed, the present absence of the non-resident from the state need not be averred,^ unless the statute couples absence and non-residence as a ground for foreign attachment,^ or unless the statute is construed to mean, by " non-resident," or "not a resident," one who is not at home though having a residence; one who is not literally within the jurisdiction when the attachment is sued out. Under such construction the question is whether the debtor is present or absent rather than whether he is a resident or non-resident.* Persons act- ually in California and professionally engaged there are held to be not non-residents.^ § 42. Riijlit to the writ — The creditor is entitled to his writ when he has laid the ground of non-residence,'' or alleged pro- tracted absence such as prevents the effectual use of the ordi- nary process, though subsequent events may show that the debtor's absence was not for such length of time as the affiant had believed it would be.^ But if the creditor is in error re- non-resident lessee of a railroad in (Pa.), 51. See Scruggs v. Blair, 44 Georgia which may be served there Miss. 406 : attachment in equity, is yet liable to be proceeded against * Hoggett v. Emerson, 8 Kan. 263, by attachment like other non-resi- construing Kansas Code Pro., § 21. dents. 5 Egener v. Juch (Cal.), 35 P. 432. iBurcalow v. Trump, 1 Houston /5ee Hanson v. Graham, 82 Cal. 631. (Del.), 363; Green v. Beckwith, 38 6 He need state nothing but the Mo. 384. ■ bare fact of non-residence. Matter 2 Clark V. Arnold, 9 Dana (Ky.), of Brown, 21 Wend. 316. Compare 305. Thompson v. Chambers, 12 S. & M. 3 Fuller V. Bryan, 20 Pa. St. 144 ; 488. Bainbridge v. Alderson, 2 Browne '' Leathers v. Cannon, 27 La. Ann. §§ 43, 44:.] ABSENCE AND NON-RESIDENCE. 31 specting the material averment upon which the attachment is issued, if he makes affidavit that the debtor is a non-resident when the contrary is the case in fact, and proceeds to give publication notice, and prosecutes the case to judgment, the whole proceeding is a nullity.^ § 43. Statutory limits. — Attachment authorized against a non-resident debtor is not therefore applicable to his executor, administrator, heirs, trustees or other representatives, unless the statute goes further than to reach the debtor personally.^ The authorization is not confined to cases where the debtor is sued alone; he may be included in a suit against a resident lirra.^ Xon-residents may sue by attachment under general au- thorization. There must be an exception to the general terms of a statute in order to exclude them.* III. Absence and Non-eesidence. § 44. Absence as affected hy intention. — What constitutes such absence as to amount to non-residence within the mean- ing of the attachment laws depends much upon the intention of the debtor.^ Whether his intention is to maintain his resi- 522. Attachment sustained against son v. Walsworth, 1 Johns. Cases, the property of an absentee travel- 372 ; Cheatham v. Carrington, 14 La. ing abroad who had designed to be Ann. 696 ; Debys v. Yerbey, 1 Martin, absent from the state two years or N. S. (La.) 380 ; Matter of Hurd, 9 more, and who left no agent, and Wend. 465 ; Bryant v. Fussel, 11 R L could not be reached by ordinary 286 ; Haight v. Berg, 3 Green (N, J.), process ; and his return at an earlier 183; Peacock v. Wildes, 3 Halst. date than he had designed was held (N. J.) 179 ; Henderson v. Henderson, not to affect the process issued be- 1 Cr. C. C. 469 ; Patterson v. Laugh- fore his return. lin, id. 352. 1 Though an attachment suit be 3 Collier v. Hanna, 71 Md. 253. prosecuted to judgment on the * Givens v. Merchants' N. Bank, 85 ground that the debtor has perma- 111. 442 ; Mitchell v. Shook, 72 id. 492 ; nently left the state of Louisiana, the Graham v. Bradbury, 7 Mo. 281 ; decree is void if the debtor is really Posey v. Buckner, 3 id. 413 ; Gray v. a resident, and has not been cited Biscoe, 6 Bush, 687 ; Tyson v. Lans- and has not appeared in the suit, ing,- 10 La. 444 ; McClerkin v. Sutton, ' Succ^ession of Durand, 34 La. Ann. 29 Ind. 407. 352. swells r. People, 44 111. 40; Mor- ^McCoombe v. Dunch, 2 Dall. 73; gan r. Avery, 7 Barb. 656; Swanty Taliaferro v. Lane, 23 Ala. 369 ; Jack- v. Hutcbins, 13 Neb. 206. 32 STATUTORY GROUNDS. [§44. dence or abandon it may be inferred from protracted absence with continued silence as to his purpose, and total neglect of his affairs within the state ; ^ or from his own declarations that he has left the state permanently or that his home and that of his family are in another state ; - or, on the other hand, from such circumstances as that his family have not removed, that summons may be left with them so as to bind him, that he is preparing- to return, etc.^ Acts indicating the intent of permanent removal outweigh the debtor's avowals to the contrary.* Statements of the defendant, as to intent to leave the state, cannot be received as evidence to justify attach- ment, if made after the levy.^ Actual departure from the state is no ground in itself. Such intent cannot properly be inferred from the fact of a temporary absence; and that alone constitutes no ground for attachment.^ Even though a resi- dent may design to remove permanently from the state, and 1 Walker v. Barrelli. 32 La. Ann. 467. Intent to abandon domicile was inferred from ten years' absence from the state by the debtor without com- municating his intentions or where- abouts, or anything concerning his 4 Wolf V. McGavock, 23 Wis. 516 ; New Orleans Canal and Banking Co. V. Comly, 1 Rob. (La.) 231 ; Reeves v. Comly, 3 id. 363 ; Simons v. Jacobs, 15 La, Ann. 425. 5 Baldwin v. Walker, 94 Ala. 514 ; property or its administration ; and Hale v. Richardson, 89 N. C. 62. the attachment of his property as ^ Alston v. Newcomer, 42 Miss. 186 ; that of a non-resident was sustained. Fuller v. Bryan, 20 Pa. St. 144 ; Man- 2 Loder v. Littlefield, 39 Mich. 512. dell v. Peet, 18 Ark. 236 ; Matter of Property deemed subject to attach-- Chipman, 1 Wend. 66; Matter of ment as that of a non-resident, when Warner, 3 Wend. 424; Burgess v. the owner has declared that his home is in another state, and testi- fies that his wife owns a house and lives there, and that for years he has frequently visited her there. Also, Farrow v. Barker, 3 B. Mon. (Ky.) 217 ; Naylor v. French, 4 Yeates, 241. 3 Bowers v. Ross, 55 Miss. 218. The Clark, 3 Ind. 250 ; Havis u Taylor, 13 Ala. 324 ; Watson v. Pierpont, 7 Mar- tin, 413 ; Oflfutt 17. Edwards, 9 Rob. (La.) 90; Fitch v. Waite, 5 Ct. *117; Matter of Schroeder, 6 Cow. 603; Matter of Fitzgerald, 2 Caines, 318 ; Pitts V. Boroughs, 6 Ala. 733 ; Wai- cott V. Heudrick, 6 Tex. 400 ; Ross v. Clark, 32 Mo. 296 ; Boggs v. Bind- defendant may show that he still has skoflf, 23 111. 66 ; Kingsland v. Wor- his domicile in Mississippi, with in- tent to return to it, and keeps an establishment within the state where his family resides and where process may be served so as to bind him, though he has a fi.xed abode in an- other state for an indefinite period. sham, 15 Mo. 657 ; Ellington v. Moore, 17 Mo. 424 ; Boardman v. BickforJ. 2 Aikens, 345; Oliver v. Wilson, 29 Ga. 642; Robson v. Hunter, 90 Tenu. 242 (explaining Slatton v. Johnson, 4 Hay, 200 ; Welch v. Rob- inson, 10 Humpli. 264; James n g 45.] ABSENCE AND NON-EESIDENCE. 33 may be absent on the business of looking up a new home in another jurisdiction, his property does not therefore become immediately liable to attachment as that of a non-resident, since his old home is not yet relinquished and ordinary pro- cess may reach him there.^ While a brief absence, coupled with the facts indicating that residence within the state has been abandoned, may justify attachment,'^ a very protracted stay from the state, even extended for years, is not necessarily a fact supporting the charge of non-residence, since the ab- sentee may all the time maintain a place of residence within the state at which ordinar}" process may be legally served.^ § 45. P resumption of non-resUleuce from absence. — There is, as a general rule, no fixed length of absence which will of it- self create the presumption of non-residency, within the mean- ing of the attachment laws — the important question being whether ordinary process can reach the debtor at all times bv service at some place within the state where the suit is brought.* So long as there is such a place, there can be no reason why the extraordinary process should be invoked on the ground of absence or non-residency, unless there is statutory enactment making absence alone a legal cause for attaching. What mat- ter if the absentee is acquiring or has acquired a residence abroad? He may have more than one residence; and there- fore it cannot be inferred, because he has established one in another state or country, that he has abandoned the place where service may be had upon him in the state where the suit against him is instituted. On the contrary, absence from the state, even with intent to return, and when no residence is acquired or is being acquired elsewhere, may render a debtor liable to have his property attached as that of a non-resident, when the circumstances are such that the creditor is cut off Hall, 1 Swan, 297 ; Carlisle v. Cowan, White, 23 Ind. 43 ; Farrow v. Barker, 85 Tenn. 165) ; Labe v. Brauss, 13 Pa. 3 B. Men. 217. Co. Ct 255; Fitzgerald v. McMurran 3 Egan v. Lumsden, 2 Disn. (O.) 168. (Minn.), 59 N. W. 199. ■» lu Kentucky, Arkansas and Colo- 1 Pfoutz V. Comford, 36 Pa. St. 420 ; rado four months' absence is a ground Smith V. Story, 1 Humph. 420. " for attachment ; and in Michigan 2 Morgan v. Nunes, 54 Miss. 308; three months' absence and non-resi- Wheeler v. Cobb, 75 N. C. 21 ; Taylor dence. V. Knox, 1 Dall, 158; McCollem v. 3 34 STATUTOEY GROUNDS. [§ 4G. from the benefit of ordinary process to make his money.^ The debtor must be so situated at the time the suit is to be served that he can be reached at some place of residence, if he would avoid the extraordinary process. It is at that particular time — when the attachment proceeding is begun — that he must be a resident if he would avoid such process.^ It would not avail him to become a resident at a later period ; to show that he was absent without a place in the state for service when his goods were attached but that he returned soon thereafter; or that he is, at the time of the trial, or the traverse of the at- tachment, a resident of the state with the design of remaining piermanently. § 46. Infarence from facts. — As in the case of a new-comer, acquiring residence, the aniimis of the debtor is of importance in deciding whether or not he is a resident, so when a person leaves the state his intent is often decisive of the question whether or not he has abandoned his residence therein. As previoush'" remarked in another connection, one immediately becomes a non-resident if he leaves his state with the design of becoming such,^ though the design has been held not to be decisive on this question until accompanied with the act of leaving ; until he has passed beyond the state bounds.* But if he has broken up his home, so that process can no longer be served there and be binding upon him, must his creditor be confined to personal service upon his debtor as the only means of reaching him? The case is not that of an abscond- ing debtor ; the plaintiff cannot truthfully set up the ground, in his afiidavit, that the defendant is running away to avoid process, concealing himself, hiding his goods, etc., in fraud of 1 Ludlow V. Ramsey, 11 Wall. 581. » Moore v. Holt, 10 Gratt. 284; Bal- Held that property could be attached linger v. Lautier, 15 Kan. 608. as that of a non-resident because of ^ Ballinger v. Lautier, 15 Kan. 608; its owner being out of the state and Kugler v. Shreve, 28 N. J. L. 129; in the confederate army. Also, Fore- Kingsland v. Worsham, 15 Mo. 657 ; man v. Carter, 9 Kan. 674. Contra, Temple v. Cochran, 13 id. 116; Smith Haynes v. Powell, 1 Lea (Tenn.), 347. v. Story, 1 Humph. 420 ; Stratton v.. But not if he is in the fedex'al army. Brigham, 2 Sneed, 420 ; Lyle v. Fore- Tibbits V. Townsend, 15 Abb. Pr. 221 ; man, 1 Dall. 480 ; Bainbridge v. Aid- Thompson's Case, 1 Wend. 43 ; Weit- erson, 2 Browne, 51 ; Wheeler v. kamp V. Loehr, 53 N. Y. Superior Ct Degnan. 2 Nott & McC. 323 ; Ship- 79. mau v. Woodbury, 2 Miles, 67 ; Reddy 2 Clark V. Arnold, 9 Dana, 305, v. Bego, 33 Miss. 529. §§ 47, 48.] ABSENCE AND NON-RESIDENCE. 35 creditors. The defendant avowedly means to abandon his residence, which he may lawfully do, and has broken up his home, and is openly traveling towards the state bounds to depart permanently. Why should not the extraordinary process be invokable on the ground of non-residence?^ § 47. No fixed abode. — It is conceivable that a person may never have been out of his native state yet have no fixed place of abode within it where ordinary process may be legally served upon him when he cannot be personally served with summons. His biisiness may require him to travel constantly from county to county, to sojourn at hotels for but a few hours at a time, so that no particular place could be called his home. Whether, under such circumstances, his property would be liable to at- tachment on the ground of non-residence, must depend upon the attachment statute of his state (as indeed, in all other cases), but there would seem to be no reason, on general prin- ciples, why his property ought not to be made liable to attach- ment. § 48. Only by his property can a non-resident debtor be reached and made to pay.^ If he is temporarily present, a summons may reach him, to be sure ; but of what avail would that be if his property is not attached, or if he has none within the state to be attached? If he has residence in another state or country, he may plead to the jurisdiction of the state court where the ordinary suit is brought. Or, he could readily re- turn to his home and take his property with him, so that there would be nothing left within the jurisdiction upon which the judgment could be executed. The necessity, therefore, for the use of the writ of attachment, by which his property is con- served and held under a hypothetical lien till judgment, is ob- vious, though the non-resident debtor be personally served with summons. Ordinary process, though it may be served in such case, would not prove effectual ; and hence the ex- traordinary is permitted and authorized. The reader will readily ])erceive that it would be almost an endless task, were the many curious facts of cases, involving 1 Sec, favoring this view, Clark v. 2 Winstonly v. Savage, 2 McCord, Ward, 12 Gratt. 440; Spalding v. Ch. (S. C.) 425. Sinims, 4 Met. (Ky.) 285. See, also, Moore v. Holt. 10 Grattw 284. 36 STATUTORY GROUNDS. [§§ 49, 50. the attachability of non-residents' property, to be given b}'" way of illustration in a text-book. It seems better to rely upon the general rule that the facts must be such as to render the conservative process necessary, under the statute provis- ion.^ § 49. In every state the writ of attachment may be sued out against a non-resident. It is nowhere required that the affiant should swear that the debtor has become, or continues to be, a non-resident for the purpose of hindering or defraud- ing the creditor, or of preventing the collection of the debt. ]^o charge or implication of fraud on the part of the non- resident need appear in the affidavit made for the attachment of his property. He may be honest, admitted by the plaintiff to be such, yet liable to have his property attached because the plaintiff can proceed effectively in no other way. It is solely because he cannot be summoned that his property is attached ; his accidental presence, when he ma}^ be summoned, forming no exception, as has already been shown.- TV. Debtors Absconding or Concealing Themselves to Avoid Process. § 50. Avoidance of iirocess. — The statutes, though employ- ing varying expressions, are generally uniform in authorizing the attachment of the property of a debtor who endeavors to avoid the process by absconding or by concealing or secreting himself. Some of the statutes make each of these methods of avoidance a distinct ground for attachment; others connect the latter two, and keep the first distinct ; others specify but 1 Branch Bank v. McDonald, 23 Dall. 305, ?io/e (in which it was said Ala. 474 ; Zerega v. Benoist, 7 Robt. that the effects of an American con- (N. Y.) 199; Knox V. Mason, 3 id. 08 1 ; sul, residing abroad, were liable to McKenzie v. Bentley, 30 Ala. 139 ; foreign attachment) ; Spalding v. Coosa River St. Bt. Co. v. Barclay, 30 Simms, 4 Met. (Ky.) 285; Railroad v. id. 120 ; Tallemon v. Cardenas, 14 La. People, 31 Ohio St. 542. Ann. 509 ; Sandel v. George, 18 id. 526 ; - See further as to non-residence, Clark V. Pratt, 19 id. 102 ; Surty v. Skil- Quebec Bank v. Carroll, 1 S. D. 372 ; ton, 19 id. 36; Redwood u Consequa, Garden v. Garden, 107 N. C. 214; 2 Browne (Pa.), 62 ; Allen v. Wright, Lamson v. Adiard, 46 Minn. 243; 134 Mass. 347 ; Brolaskey v. Landers, distinguishing Keller v. Carr, 42 N. 2 Miles (Pa.), 371 ; Shugart v. Orr, 5 AV. 292. Yerg. 192; Caldwell v. Barclay. 1 § 51.] DEBTORS ABSCOXDING, ETC. 37 one of the three; bat all unite in giving the remedy when the intentional avoidance of process by hiding or absconding is made to appear. Absence may be under such circumstances as to justify the charge of absconding to defraud creditor, though the affidavit may have been made on information and belief.^ It has been held that if one has secreted himself or has run away from the state to avoid a criminal arrest, his ))roperty may be attached by civil process, as though he had gone to avoid such process.- The general rule, however, is that the debtors secreting himself or absconding must be to avoid personal civil service, in order to afford ground for at- tachment.* When attachment has been made on the ground that the defendant evades service, it may be maintained though he be served on the same day the levy was made.* In states where attachment is an ordinary civil process in all cases upon contract or for debt, no special statute authoriza- tion, based upon this ground, may be found ; but they consti- tute no exception, since attachment will there lie against the property of an absconding or secreted debtor, under the com- mon practice, though not there a special ground of attachment. § 51. Xotwithstanding the general uniformity of the stat- utes, there are minor differences; some treating absconding as running away from the state to avoid process, while others treat it as running away from the county or the usual place of abode. Nearly every state statute on attachment requires that the creditor, when charging that his debtor has absconded or con- cealed himself, or is about to do so, shall qualif}" the charge with the words, "so that ordinary process cannot be served," or equivalent words. " With intent to escape process," " to elude summons," "so that ordinary process cannot be effect- ive," "to avoid and defraud creditors," etc., are phrases fre- quently found in the statutes, which may be instanced as equivalents of the qualifying words above mentioned. 1 Buell V. Van Camp, 119 N. Y. 160. 247 ; Lynde v. Montgomery, 15 Wend. 2Malone v. Handley, 81 Ala. 117; 461; Fitch v. Waite, 5 Ct. 117; North Starke v. Scott, 78 Va. 180 ; Bank of v. McDonald, 1 Biss. 57 ; United Commerce v. Payne, 86 Ky. 446. States v. O'Brien, 3 Dillon. 381. 3 Evans v. Saul, 8 Martin (La. ), N. S. * Giddiugs v. Squier, 4 Mackey (D. C), 49. 38 STATUTOEY GROUNDS. [§ 52. § 52. The gist of the charge is that the debtor, by his own act, has rendered, or will render, ordinar}^ process ineffectual. And if this is true, it would matter little whether lie has es- caped from the state or from his county, unless the former is necessary to the granting of the writ under any particular statute. JS'or would it matter that he has a place of usual abode where a summons ma3'^ be left ; for, if it is true that he is hiding himself, or running off, to avoid summons, it is quite likely that he would also run off his property, or dispose of it in some way, before ordinary process could result in judg- ment and execution. The law authorizes attachment on the ground of fraudulent absconding, etc., even though the ab- sconding debtor should be reached by summons, upon the required showing that ordinary process would not certainly prove effective. When the application is made and the writ granted, it cannot be known certainly that summons will not reach the debtor. It is highly probable that it will reach him person- ally, when the charge is that he is about to abscond or conceal himself. The legislator does not mean to confine the remedy of domestic attachment to cases where the defendant cannot be personally served, but to those in which ordinary process is not so good a remedy as the extraordinary. To entitle the plaintiff to an attachment on the ground that his debtor has absconded, it is not ordinarily required of him first to obtain an officer's return that the debtor cannot be found.i When such return is required, the practice is excep- tional.^ There may be absconding without leaving the state. Kemoving from home with the design of avoiding summons and of defrauding the creditor is what is generally understood by absconding.'' 1 North V. McDonald, 1 Biss. 57. his just debts shall be considered as 2 Rev. Stat, of Rhode Island, ch. having absconded " (Md. Code, art. 178 ; Rev. Stat, of Delaware, ch. 104 ; 10, § 3) is construed to entitle the Barney u Patterson, 6 Har. & J. (Md.) creditor to the writ of attachment 183. when the debtor has left his home 'Stouffer V. Niple, 40 Md. 447: with such intent, though he may not The statute prescribing that the have left the state. On the same debtor who shall "secretly remove subject, consult Mandell v. Peet, 18 himself from his place of abode with Ark. 236 ; Branson v. Shinn, 13 N. J. intention to evade the payment of L. 250 ; City Bank v. Merritt, id. 131 ; §§ 53, oJr.] DEBTOKS ABSCONDING, ETC. 39 § 53. JRemoval. — Mere removal to another county, without fraudulent intent, is not a ground for attachment,^ though it has been held that a non-resident traveler passing through a county is removing therefrom so as to be liable to have his effects, which he is taking with him, attached on the ground "that he is actually removing from the county."- A busi- ness corporation or company, when authorized to do business as an artificial person in a county, may be sued by attachment on the ground of being about to remove permanently, though the partners or members of the corporation have never lived in the county.^ Permanent removal is ordinarily what the law means when authorizing the ground.^ It is not sufficient to swear that the debtor is already in another state and is about to sell or remove his property, when this ground is made the basis of the attachment.^ In Kentucky it was held that in an action for the recovery of money, against several partners,- when some one of them has departed from the state with intent to defraud his cred- itors, or has concealed himself so that a summons cannot be served upon him, the plaintiff is entitled to an attachment against the propert}'' of all the defendants." In Xew Jersey, held that an attachment will not lie against an absent or ab- sconding joint-debtor or partner, if one or more of the joint- debtors or partners, liable for the same debt, reside within the state.' § 54. Hiding. — Secreting himself, hiding from the creditor or the officer who is to serve process, going from home to avoid summons, shutting himself up at home, and all such acts of a debtor, are included in the general term " abscond- ing;" and it is not necessary to the right of attaching that he should have run away from the state.^ Bennett v. Avant, 2 Sneed (Tenn.), 6 Mills v. Brown, 2 Met. 404 ; Dun- 153; Fitch v. Waite, 5 Ct. 117. can r. Headley, 4 Bush, 45. iMeek v. Fox. 42 Miss. 513. 'Barber v. Eobeson, 15 N. J. L. 17. 2 Johnson v. Lowrj-, 47 Ga. 560, sjves v. Curtis, 2 Root (Ct), 133; SRuthven v. Beckwith, 84 Iowa, Fitch v. Waite, 5 Ct 117; House v. 715. Hamilton, 43 111. 185; Young v. Nel- * Warder r. Thrilkekl, 52 Iowa, 134. son. 25 id. 565; Nutter i7. Conuet, 3 5 State V. Morris, 50 Iowa, 203. B. ]Mon. 199 ; Dunn v. Salter, 1 Duv. The absconder is not a non-resident (Ky.) 342 ; Field v. Adreon, 7 Md. Lindsey r. Dixon, 22 Mo. App. 291. 209 ; Fitzgerald's Case, 2 Cai. (N. Y.) 40 STATUTORY GROUNDS. [§§ 55, 56. The circumstances are rare under which one who is not a resident can be deemed an absconder.^ However, if one is a resident in such a sense that he is subject to ordinarj^ process, yet seeks to avoid it by secreting himself, he might be prop- erly charged with absconding,^ § 55. Purpose to avoid creditors. — It is not required of the attaching creditor that he should charge removing or ab- sconding for the purpose of eluding his summons, or defraud- ino^ himself; the charge of removino- to defraud creditors is sufficient, as a general rule, under the several statutes. Ee- moval from the county to elude one creditor justifies attach- ment by another creditor,^ If the debtor has shown himself untrustworthy, and capable of trying to evade the law and avoid the payment of one just debt, there is good reason for issuing the conservative writ to secure another. But where the statute requires the creditor to swear that the removing, secreting, absconding, etc, from the place of abode is to in- jure himself, and to elude him, and evade the law with respect to his claim, the averments must be made and sworn accord- ingly. No injustice need be done the defendant, since he is secured against loss in most of the states by the creditor's bond; and he is at liberty to traverse the affidavit, and may deny that he has illegally removed himself from his abode or from his county (as the charge may be), or that he is about to go ; or, admitting having gone, he may aver that his absence was temporary and without fraudulent design ;"* for ''removal" means permanent removal.^ §56, AJ)Out to ahscond. — Most of the statutes are rather vague in their use of the phrase, " about to abscond." About to do so — when? Is it to-day, to-morrow or next week? Is it at some time before a judgment lien can be obtained by following up ordinary process? Perhaps no more definite 318; Jemel v. Howe, 3 Watts (Pa.), 2 Middlebrook v. Ames, 5 Stewart 144 ; Thurneyssen v. Voathier, 4 id. & Porter, 158. 423; Wray v. Gilmors, 1 Miles (Pa.), 3Sherrill v. Beach, 37 Ark. 560. 75; Boggs V. Bindskoflf, 23 111. 66; 4 Kiepper r. Powell, 6 Heisk. (Tenn.) Giddings v. Squier, 4 Mackey, 49. 503 ; Gill v. Wyatt, id. 88. 1 Shugart v. Orr, 5 Yerger, 192. See & Warder v. Thrilkeld, 52 Iowa, 134. Matter of Schroeder, 6 Cow. 603; Matter of Fitzgerald, 2 Gaines, 318. § 57.] FRAUDULENT DISPOSITION OF PROPERTV. -il period can be fixed upon, by way of construing the phrase, than that last suggested by inquiry. If the debtor is about to go before the ordinary judgment heu can be created in due course, there is reason for creating the hypothetical attach- ment lien at once.^ Absconding requires the act as well as the animus; though being "about to abscond" is complete without action.^ The intent, being difficult of direct proof, may be inferred from circumstances;^ and the defendant is entitled to the credit of circumstances in his favor.* V. Fraudulent Disposition of Property to Avoid Creditors. § 57. Statute iwovisions. — The statutes, with great uni- formity, accord the attachment remedy wiien the debtor seeks to elude the effect of ordinary process by secreting, re- moving or otherwise fraudulently disposing of his property within the state, or by removing it out of the state so tliat the creditor is in danger of losing his claim or of being neces- sitated to sue in another state. The writ is accorded, w^iether the debtor has done such acts or is about to do them for the purpose stated. The authorizations vary in different states; but the ground, that the debtor is about to conceal or remove 1 Elliott V. Keith, 32 Mo. App. 579 ; - See, on absconding, and '• about Myers v. Farrell, 47 Miss. 281 : Held to abscond," and the requisites for that the leading purpose of the stat- charging these grounds : Bennett v. ute granting attachment when debt- Avant, 2 Soeed (Tenn.), 152. ors are about to remove their persons ^(jibson v. McLaughlin, 1 Browne, or property out of the state with in- 292 ; Ross v. Clark, 32 Mo. 296 ; tent to evade the payment of debt is Young v. Nelson, 25 111. 565. to authorize proceedings in rem; * Myers v. Farrell, 47 Miss. 281 ; and that any attempt to fix a definite Boardman v. Bickford, 2 Aikens, rule as to the time within which the 345 ; Matter of Warner, 3 Wend. 494 ; inquiry is to be limited would be Havis v. Taylor, 13 Ala 324; Bur- hurtful to practice and might defeat gess v. Clark, 3 Ind. 250. And see the remedy in meritorious cases. All further : Morgan t'. Avery, 7 Barb, that is necessary is that the ground 656 ; Simons v. Jacobs, 15 La. Ann. of attachuieut shall exist when the 425; Reeves v. Comly, 3 Rob. (La.) writ is sued out If the fraudulent 363 ; N. O. Canal & Banking Co. v. design to remove then exists, attacli- Comly, 1 id. 231 ; Bennett v. Avant, raent will lie, though the debtor may 2 Sneed, 153. not mean to carry out his design for several weeks or mouths. 42 STATDTOKT GROUNDS. [§58. or dispose of his property to defraud the creditor, is ahnost universal. These general terms include the fraudulent assign- ment of property, withholding it, simulated sales of it, and like acts tending to defeat the usual course of justice. §58. Inferences. — From proof of suspicious facts it may often be inferred that the disposition is fraudulent and that ordinary process has been made impracticable, and thus the statutory ground may be supported.^ The fraudulent withholding of property from ordinary pro- cess is inferable from an evil intent to delay creditors ; not from mere refusal to pay debts,^ or from false promises to pay.^ Knowledge of fraud on the part of the purchaser from a debtor may be inferred from circumstances ; * but facts unim- portant and not inconsistent with the hypothesis of fair deal- ing are not sufficient to support the attachment.^ The debt- or's withdrawal of his deposit from bank, and his departure from the state, leaving debts but no property behind him, do • Wildman v. Van Gelder, 60 Hun, 443 ; Nelvitter v. Mansell, 60 id. 578 ; Union Dis. Co. v. Ruser, 60 id. 583 ; Jaflfray v. Nast, 57 id. 585 ; Thomp- son V. Dater, id. 316 ; German Bank V. Meyer, 55 id. 86 ; Johnston v. Fer- ris, 14 Daly, 303 ; Mayne v. Savings Bank; 80 la. 710; Hardie v. Colvin, 43 La. Ann. 851 ; Wilson v. Dockery (Miss.), 12 So. 585 ; Aikwith v. Allen, 33 Neb. 418 : Smith v. Boyer, 29 id. 76 ; Hanks v. Andrews, 53 Ark. 327 ; Forlina v. Troolicht (N. M.), 21 P. 703; Meyer v. Black, 4 N. M. 190; Eby V. Watkins, 39 Mo. App. 27; Rainwater v. Faconesowitch, 29 id. 26; Warner v. Kade, 15 id. 600; Buford. etc. v. McWhorter, 41 Kan. 262 ; Kleine v. Nie, 88 Ky. 542 ; Flow- ers V. Miller (Ky.), 16 S. W. 705; Bank v. Payne, 86 Ky. 446 ; Bacon v. Stone Co., 5 Ohio Cir. Ct. 289 ; Camp- bell V. Jackson, 80 Wis. 48. (See Palmer v. Hawes, 80 id. 474.) Little- john V. Jacobs, 66 id. 600 ; Keith v. Armstrong, 65 id. 225 ; Kahn v. Angus, 61 id. 264; Wingo v. Purdy, 87 Va. 472; Weaver v. France, 3 Wyo. 273. On the facts stated in the following cases it was held that fraud could not be inferred : Singer V. Lidwinosky, 36 111. App. 843 ; Ten- ney v. Diss, 36 Neb. 61 ; Thomas v. Dickinson, 58 Hun, 603; Thompson V. Dater, 57 id. 585 ; Robinson v. Hunter, 90 Tenn. 242; Fisher v. Williams, 56 Vt. 586 ; Clark v. Ingra- ham, 15 Phila. 646 ; Burruss v. Trant, 88 Va. 980; Wyman v. Wilmarth, 1 S. D. 172 ;, May v. Newman (Mich.), 55 N. W. 364 ; Collier v. Hanna, 71 Md. 253. 2 Durr V. Jackson, 59 Ala. 203. 8 Parsons v. Stockbridge, 42 Ind. 121. * Roos V. Lewyn (Tex.), 23 S. W. 450. 5 Mack V. Jones, 31 Fed. 189 ; Myers V. Whiteheart, 24 S. C. 196 ; Willis v. Lowry, 66 Tex. 540 ; Heideman, etc. V. Urner, 24 Mo. App. 534. §§ 59, CO.] FRAUDULENT DISPOSITION OF TKOPERTY. 43 not necessarily show fraud. The test of a transaction is whether it was done in good faith. ^ Fraud is often a mixed question of law and fact.- If there are no facts in evidence on which fraud can be predicated, it is erroneous for the court to give instructions to the jury as to fraud ;'^ but if the plaintiff has introduced evidence to prove that the defendant's trans- fer to a claimant was fraudulent, it is error to direct the jury to find for the claimant.^ Construction, as to fraud, is not different in attachment cases from that in others. The statutory presumption of fraud when the vendor con- tinues in possession may be repelled by evidence.^ § 59. Concealment — The denial by the debtor that he has received money, though false, is not a concealment of it." An insolvent hid mone}^ by advice of his counsel, to enable himself to defend against anticipated attachment proceedings : this was held to be ground for attaching.' When a defendant wilfully concealed propert}'- that had been attached, to defeat the judgment creditor, he was mulct in damages to double the value of the property concealed under a statute providing such penalty in case the property be not produced to satisfy the process.^ If the debtor is about to conceal a part of his property to hinder or defraud his creditors, it is sufficient ground.' § GO. The cltarf/e of intent to remove, etc. — The charge is not confined to any particular time, provided the accomplish- ment of the intent would defeat the legitimate result of ordi- nary process; that is, if the defendant is substantially charged with the design of putting his property beyond the reach of the creditor before he can obtain an ordinar}'- judgment and seize it under execution, it will be a sufficient compliance with 1 Huuter v. Ferguson (Colo.), 33 P. * St. Louis Wire Mills v. Lindheim 82, 84; Lloyd r. Fulton, 91 U. S. 485; (Tex.). 18 S. W. 675. Humes v. Scruggs, 94 U. S. 23. spi-gntiss v. Schirmer, 136 N. Y. ' Hunter v. Ferguson, supra; Petti- 305. bone V. Stevens, 15 Ct. 26 ; Otley v. ^ Rohan v. Latimore, 18 Mo. App. Manning, 9 East, 64 ; Sturtevant v. 16. Ballard, 9 Johns. 342. " Matthews v. Loth, 45 Mo. App. ^ Hunter v. Ferguson, supra; Bur- 455. lock V. Cross. 16 Colo. 162; Lawson 8 Scott v. Morgan, 94 N. Y. 508. V. Van Auken, id. 62 ; Thatcher v. ^ Flannagan v. Donaldson, 85 Ind. Kaucher, 2 id. 699 ; Allen v. Eldridge, 517. 1 id. 288. 44: STATUTOliY GKOCXDS. [P Gl. the statutory requirement. ' The design must be charged as existing at the time the alfidavit is made, in order to a strict compliance with the statute authorizing attachment.- Distinc- tion may be clearly drawn between a fraudulent design and a fraudulent act, considered as attachment grounds. The cllcct determines rather than the intent.' In a charge of fraudulent disposition, it is the intent of the debtor, not that of the re- cipient, which gives ground for attaching.* Sometimes the intent, or even consummated fraud, may be too remote to jus- tif}'^ the charge for the purpose of attaching.* The charge of removing, assigning or otherwise disposing of property, or intent to do so, need not be made with reference to all of the debtor's creditors, or to all of his property. It is sulRcient if the design is to fraudulently dispose of a part of the property, and if it is to defraud the plaintiff only.*^ However, where the statute requires that the charge of fraud- ulent disposition of property shall be qualified with the clause, " Without leaving sufficient to satisfy the plaintiffs demand ; " or, " So as to defeat ordinary process," or like provisions, it would not be a compliance with the law to charge merely that the defendant has fraudulently assigned^ or removed, or is about to assign or remove, or intends to assign or remove, a 2>art of his property. §61. Removal of 2>*'ope} t}/. — The debtor's removal of his property from the state to defeat creditors, when not leaving enough within the state to satisfy their demands, is a common 1 Fraudulent design to remove * Miller v. McNair, 65 Wis. 452. property from the state is a ground * Hersbfield v. Lowenthal, 35 Kar. for attaching it, though the debtor 407. may not mean to remove it for some ^ Iq Oregon, if the debtor is about weeks or moutha The time must to dispose of his goods to defraud tlie not be too closely circumscribed. It plaintiff, attachment against them is sufficient if the ground exists will lie, though no fraud against when the writ is issued. The pur- creditors in general may be designed, pose of the legislator was to author- Haiglette v. Leake, Deady, 469. In ize proceedings in rem. Myers v. Kansas, the assignment of any por- Farrell, 47 Miss. 281. tion of the debtor's property to de- 2 Lewis V. Kennedy, 3 G. Greene fraud creditors is a ground for at- (lowa), 57; Warner v. Everett, 7 B. tachment Johnson v. Laughlin, 7 Hon. 262. Kan. 359. Taylor v. Myers, 34 Mo. 3 Douglass V. Cissna, 17 Mo. App. 81. 44; Bullone v. Smith, 73 Mo. 151; 'Hinds v. Fagebank, 9 Minn. 6& Raid V. Pelletier. 28 id. 177. §§ 62, 63.] FRAUDULENT DISPOSITION OF PKOPEETY. 45 ground for attachment.^ Even such removal in good faith affords ground for attaching, if not enough is left to satisfy creditors ; and there must be enough left of liable property.^ Of course, the debtor may ship his exempt property at pleas- ure,^ while any amount of it retained at home would not save him from attachment of the rest for having removed liable property from the state. The removal of property from the state to raise money to pay debts has been held to subject the debtor to liability to have his property attached.^ If a partner sends property of his own out of the state to defraud his personal creditors, that is no circumstance to sup- port the attachment of his firm's property for the firm's debts.^ Shipping goods out of the state to pay the consignee a debt due is not a disposition of them to hinder or defraud other creditors.® § 62. Keraoval of property from the state is held to be no ground for attaching, if the debtor has retained enough to pay his debts.^ And if the removal is for the purpose of pay- ing a debt, it has been held that even an insolvent debtor does not thereby give his creditors anv ground of attachment.^ Removal of property from the county in which the attach- ment suit is instituted was held good ground for attaching; the rule does not limit the act to the county in which an ab- sconding debtor has last resided.^ § 63. The plaintiff's rights are in jeopardy when his debtor is removing property out of the state without leaving enough to pay all the creditors,^'' though enough may be left to pay 1 Simon v. Association, 54 Ark. 58; ^ Evans v. Virgin, 69 Wis. 138. Durr V. Hervey, 44 id. 301 ; Ran- ^ Rice v. Pertius, 40 Ark. 157. dolph V. McCain, 34 id. 696 ; Steph- " Pickard u Samuels, 64 Miss. 822 ; enson v. Sloan, 65 Miss. 407 : Knowles flyers v. Farrell, 47 id. 282 ; Mon- V. Stees, 79 Ala. 427 ; Victor v. Hen- tague v. Gaddis, 37 id. 453 ; Haber v, lein, 34 Hun, 562 ; Bumberger v. Ger- Nassitts, 12 Fla. 589. son, 24 Fed. 257 ; McKinney v. Rosen- 8 Lowenstein v. Bew, 68 Miss. 265. band, 23 id. 785 ; Clark v. Ingraham, 9 Ketchum v. Vidvard, 4 Thomp. 15 Phila. 646. & C. (N. Y.) 138, under N. T. Laws 2 Stephenson v. Sloan, siqjra; Mack 1831, §§ 34-39, ch. 300. V. McDaniel, 2 McCrary, 198. w Mere removal is no ground for 3 Carver v. Chapell, 70 Mich. 49. attachment. Steele v. Dodd, 14 Neb. 4 Crow V. Lemon, 69 Miss. 799, dis- 496. tinguishing Lowenstein v. Bew, 68 Miss. 265. 46 STATUTORY GROUNDS. [§ 64. him. He is in clanger of losing the greater part of his claim if it constitutes a minority of the debtor's general liabilities. He cannot rely upon ordinary process as adequate in such case. He is entitled to the conservative writ, especially in states where the first attacher is accorded preference. The reason which supports the attachment ought to prevail everywhere.^ Certainly the remedy should be accorded, unless in exceptional cases where the removal is evidently but temporary and with- out ill design.^ It may be that the permanent removal is> not with intent to defraud the plaintiff himself; yet, if there is not enough left in the state to pay all the creditors, it may reason- abl}^ be inferred that the removal was designed to defraud some creditor, and that alone would warrant the plaintiff in suing out his writ of attachment,' where the affidavit required by the statute is to the fact that the debtor has removed or is about to remove his propert}^, or a material part of it, out of the state, not leaving enough to satisfy the plaintiff's claim or those of other creditors.* § 64. Under such statute the element of fraud is not an es- sential ingredient of the debtor's conduct in removing prop- erty. Even in due course of business as a merchant (it has been held), he cannot ship goods out of the state.* Doubtless he may ship when enough remains to pay his debts.^ 1 Holliday v. Cohen, 34 Ark. 707 : Disposal of property to delay or de- Removing property from the state fraud one creditor justifies attach- without leaving enough to pay debts ment by another creditor. is ground for attachment, though * Mack v. McDaniel, 2 McCrary, C. enough may be left to pay the attach- Ct. 198 : In construing the Arkansas ing creditor's debt; and, to sustain statute, making a ground for attach- this ground, he may prove other ment that the debtor " is about to re- debts. Also. Nutter v. Connet, 3 B. move, or has removed, his i^roperty, Mon. (Ky.) 199. or a material part of it, out of the 2 Warder v. Thrilkeld, 53 Iowa, 134 : state, not leaving enough to satisfy Temporary removal of property from the plaintiff's claim " or those of the state, held not to be a ground of other creditors, the court held that a attachment under the Iowa code, merchant, under such circumstances, § 2951, p. 8, authorizing attachment could not ship cotton out of the state when the debtor is about to remove in the usual course of his business, his property out of the state. Also, without becoming liable, though Montgomery v. Tilley, 1 B. Mon. (Ky.) there was no fraud, — the cotton be- 155 ; Friedlander v. Pollock, 5 Coldw, ing " a material part of his assets." (Tenn.)490. ^Id. ' Sherill v. Beach, 87 Ark. 560 : * In Alabama, shipping ootton out §65.] FKAUDULENT DISrOSITIOX OF PKOPEKXr. 4:7 So long as a merchant or any other person has property enough in the state to meet all his obligations, he may have exported all his stock in trade without rendering either that or the remainder liable to attachment. He may even owe as much as the stock is worth, yet that fact will not indicate an intent to remove it, and thus render it attachable, if he has landed estate or other property free from incumbrance and sufficient to render him solvent.^ Even if he is not solvent a merchant may sell goods in the ordinary course of his business without being amenable to the charge of fraudulently dispos- ing of them.- Insolvency is no ground for attachment.^ It has been held that a merchant may buy goods on credit with- out disclosing his insolvency, yet not intend to defraud his creditor so as to warrant him in suing out an attachment.* § 65. Fraudulent assignment. — An assignment b}' a debtor may be general and illegal yet not be fraudulent so as to be a ground for attachment.^ But the assignment, transfer or of the state in the usual course of business, by a debtor who has means enough in the state to pay his debts, will not justify attachment on the ground of removing property, etc. Stewart v. Cole, 46 Ala. 646 ; Clarke V. Seaton, 18 B. Mon. 226 ; Montague V. Gaddis, 37 Miss. 453. But it was held in Mack & Co. v. McDaniel, 2 McCrary, 198, that sending cotton out of the state, in due course of busi- ness, is ground for attachment, if tlie defendant (the shipper) has not property enough left in the state to pay his debts. 1 Wrompelmeier v. Moses, 59 Tenn. 467 : That a debtor is about to re- move his stock in trade out of the state is not inferable from the fact tliat he owes as much as it is worth, when he has real property within the state of more than twice the amount of his indebtedness, rendering him perfectly solvent. Also, Montague r. Gaddis, 37 Miss. 453 ; White v. Wil- son, 10 111. 21 ; White v. Williams, id. ~'o ; Ridgeway v. Smith, 17 id. 33. 2 Hernsheim v. Levy, 32 La. Ann. 340: Selling goods in the usual course of business is not a fraudulent disposing of property such as will justify attachment under La. Rev. Code, art. 240, §§ 4, 5, although the seller may be financially embarrassed. Same principle, Smith v. Easton, 54 Md, 138 ; German Bank v. Dash, 60 How. (N. Y.) Pr. 124. 3 Walker v. Haggerty, 20 Neb, 482 ; Stringfield v. Fields, 13 Daly, 171; Kauffman v. Armstrong, 74 Tex. 65. See Ring v. Vogel Paint Co., 44 Mo. App. 111. ■•Ellison V. Bernstein, 60 How. Pr. 145 ; N. Y. Code, § 636 (2). 5Miiliken v. Dart, 26 Hun (N. Y.), 24 : The invalidity of a general as- signment because of provisions au- thorizing the assignee to compromise, and sell on credit, does not authorize attachment under New York Code, section 636, for disposing of property with intent to defraud. 48 STATUTOKT GROUNDS. [§ 65. pledging of property under such circumstances as to make the fact evident that the transaction is designed to defraud the plaintiff, and prevent his collection of his demand in the ordi- nary way, will warrant the charge of fraudulent disposing of property to defeat the result of ordinary process, and will constitute a good ground for attachment.^ In making such charge, the statute must be implicitly followed (as, indeed, in all cases), though all the facts tending to sustain the allegation need not be detailed. Some of the courts are par- ticular in adhering to the letter of the authorization ; cer- tainty should be required. Some-states forbid preference in assignments for the ben- efit of creditors, while in others it is allowed,- though the preference in the latter may be vitiated by fraud, or denied under peculiar circumstances.^ An assignment is void when it does not fix definitely the rights of creditors but leaves the assignor to dispose of the proceeds at his discretion.* And w4ien it shows on its face that he has already disposed of the property the instrument is evidence of fraud.* But fraudu- lent preference is not to be inferred from the fact of the as- signor's insolvency.'* Preference given to a vendor of goods, 1 Weiller v. Schreiber, 63 How. (N. 3 Galle v. Tode. 60 Hun, 132 ; 1 Rev. Y.) Pr. 491: A purchaser on credit Stat. N. Y., p. 603, § 4; Nat. Bank who was to sell again and pay out of v. Stelling, 32 S. C, 102 (in which the proceeds of sale, pledged the prop- preference was made by a non-resi- erty to third persons, sought to con- dent) ; Kilpatrick, etc. Co. v. Mc- ceal the property, withheld the names Pheely (Neb.), 56 N. W 389 ; Farwell of the pledgees, etc., for which he was v. Wright (Neb.), 56 N. W 984 ; Jones held to have become liable to an at- v. Loree, 37 Neb. 816 ; Dry-goods C!o. tachment suit vinder section 636 of v. McPheely, id. 800. NewYorkCode, as having "assigned, * Averill v. Loucks, 6 Barb. 470 disposed of or secreted property." Mackie v. Cairns, 5 Cow. 547, 580 2 Nelson Distilling Co. v. Creath, 45 Grover v. Wakemau, 11 Wend. 187 Mo. App. 169 : Foster v. Mill Co., 92 Seaving v. Brinkerhoff, 5 Jolms. Ch Mo. 79 ; Estes v. Fry, 22 Mo. App. 80 ; 329, 380 ; Riggs v. Murray, id. 565 ; Britton v. Boyer. 27 Neb. 522 ; Gore Blank v. Talcott, 19 N. Y. 148 ; Pier- V. Ray, 73 Mich. 385 ; Abernathy v. son v. Manning, 2 Mich. 444, 450 ; Armstrong, 46 Kan. 270 ; De Wolf v. Lutkins v. Aird, 6 Wall. 78 ; Wiswall Armstrong, 46 id. 523 ; Hosea v. v. Ticknor, 6 Ala. 179. McClure, 43 id. 403 ; Harris v. Ca- 5 Meyer v. Black, 4 N. M. 190. pell, 28 id. 117; McPike v. Atwell, 34 6 stamper v. Hibbs (Ky.). 22 S. W. id. 142, 148 ; Tootle v. Cold well, 30 id. 607. 125. See Cooper v. Clark, 44 id. 358. §§ 6G, 07.] FKAUDULENT DISPOSITION OF PROPEKTY. 49 to the amount of the price, promised in case of future assign- ment or insolvency, was held not to be a fraud on creditors.^ An assignment, by an insolvent corporation, of all its prop- erty to one creditor to pay its debt to hira, was held not fraudulent, affording no ground for attachment by other creditors.- But where an assignee is allowed to make pref- erences among his creditors it is held that an assigning firm could not make one of its own members a preferred creditor.^ § Q6. A debtor, by assigning for the benefit of his creditors, may thus delay some of them in the collection of their claims; but this is not such delay as is meant by the statute which gives the right of attachment when the debtor is about to convey, assign, conceal or dispose of his property to delay and defraud his creditors.* The defendant's contradictory statements as to his solvency, threats of assignment, etc., have been held evidence of fraud, and attachment maintained.^ But a threat to assign was not held a circumstance agtiinst the debtor when it Avas followed by a lawful assignment.^ Retaining property for a month or more after it has-been assigned indicates fraud and may justify attachment.^ § 67. Fraudulent mortgage. — If, by the terms of the mort- gage, the mortgagor is allowed to retain possession and to sell in due course of trade without accounting to the mort- gagee for the proceeds, his creditors may attach the mortgaged goods in his hands as his property in a suit against him, on the ground of reason to believe that he will fraudulently dispose of the property before the}^ can obtain judgment against him.^ Such mortgage is fraudulent as to creditors, whether it be oral or written.^ A debtor, by giving such mortgage to his 1 National Park Bank v. Whitmore, * Torlina v. Trorlicht (N. M.), 27 P. 104 N. Y. 297 : Miami Powder Co. v. 794. Hotchkiss, 29 Fed. 767 ; Smith v. ^ Nat. Park Bank v. Wiiitmore, 104 Craft, 12 id. 856. N. Y. 297 ; Anderson v. O'Reilly, 54 2Holbrook v. Peters (Wash.), 36 Barb. 620. P. 256. ^ Evans v. Warner, 21 Hun, 574. 3 Keith u Armstrong, 65 AVis. 225; "^Roy v. Union Co. (Wyo.), 26 P. Vernon v. Upson, 60 id. 418 ; Willis 996. V. Bremncr. id. 622 ; David v. Birch- « Eckman v. Munuerlyn, 32 Fla. ard, 53 id. 492 ; McLiuden v. Went- 367. worth, 51 id. 170. ^Id.; Barnet v. Fergus, 51 111. 352; 4 50 STATUTOET GROUNDS. [§ 68. attorney for past and future services, was held to have made the property attachable.^ A mortgage by an insolvent to a creditor, in excess of the debt due him, is a fraud on other creditors, and is such a disposition of property as will warrant attachment by them.^ So, when a debtor is in failing circum- stances he cannot mortgage his property, partly to secure a debt and partly to have advances paid to himself, without liability to the inference- that the disposition is fraudulent.^ But the circumstances proven may be such as to repel the idea of fraud or fail to support it.* AVhen the mortgagor in possession sold the property and used the proceeds, he was held to have created no ground for attachment under the circumstances of the case.^ So, when the maker of a note mortgaged property to secure his indorser, it was held that there was no fraudulent disposition.^ S 68. If the morto^ao^e is without consideration, fraudulent disposition is inferable when the complaining creditor's rights are thus defeated or jeopardized.'^ The charge may be that such disposition was to defraud the plaintiff or to defraud creditors generally; it maybe that the debtor has disposed of his property in part and is about to dispose of the rest to defraud the plaintiff or to defraud creditors.^ It is held that the giving of an illegal mortgage prior to a valid assignment is no reason :for attaching after such assignment.^ When a mortgage is honestly given to one creditor, others have no Horton u Williams, 21 Miun. 187; 2Riceu Morner,64 Wis.599; Smith Stein V. Munch, 24 id. 390 ; Orton v. v. Boyer, 29 Neb. 76. Orton, 7 Or, 478 ; Bank v. Goodrich, ^Qaiiagher v. Goldfrank, 75 Tex. 5 Colo. 139 ; Putnam v. Osgood, 52 562. N. H, 148 ; Anderson r. Patterson, 64 « Allen v. Fuget, 43 Kan. 672; Wis. 557 ; Steinhart v. Deuster, 23 id. Hershfield v. Lowenthal, 35 id. 407. 136 ; Cheatham v. Hawkins, 80 N. C. 5 Hopkins v. Hastings, 21 Mo. App. 161 ; Harman v. Hoskins, 56 Miss. 263. 142; Googins v. Gilraore, 47 Me. 9. ^Godbe Pitts Drug Co. v. Allen ■Compare Ephraim v. Kelleher, 4 (Utah), 29 P. 881. See Harris v. Wash. 243 ; Williston v. Jones, 6 Meyer, 84 Wia. 145. Duer, 504 ; Smith v. Acker, 23 Wend. • Taylor v. Kuhuke, 26 Kan. 132. 653 ; Kavanagh v. Beckwith, 44 Barb. 8 Auerbach v. Hitchcock, 28 Minn. 192. 73. iShellabargeruMoltin,47Kan.451. 9Watkins N. Bank v. Sands, 47 (Five like cases against the same de- Kan. 591 ; Douglas Co. N. Bank v. fendant, same citation.) Sands, id. 596. § G9.] FKADDULENT DISPOSITION OF PEOPERTY. 51 ground for attaching because of it ; ^ but if the mortgage ex- ceed the debt it will not be deemed honest.^ § 69. Conveyance ofiyropcrUj. — The conveyance of his prop- erty by the debtor to avoid the payment of his debts is a common ground.'' It need not be " to hinder, delay and de- fraud ; " any one of these purposes, on the part of the debtor, accompanying the act gives ground for attaching.* " Cheat and delay " were held equivalent to the above-quoted phrase,^ and either would have been sufficient. If all three of the purposes be charged, or if they be stated alternately so that any one of them may be proved, the pleading. will hold good, it is held.^ A simulated sale to defraud creditors is g-ood ground for attachment.^ Sale below the real value is an indication of fraud.^ Fraud on the part of the seller is not necessarily in- dicative of bad faith in the purchaser.^ Proof that the debtor contemplated the sale of his property may be allowed to sup- port the charge that he is about to dispose of his propert}'" to defraud his creditors.^" It is while the complainants are cred- itors that fraudulent sales affect them ; so transfers or con- templated transfers before do not concern them.^^ Commission merchants sold goods, for which warehouse re- ceipts had been given to secure borrowed money, without the consent of their creditors ; this was held to be a fraudulent disposition affording ground for attachment. ^- Realty cannot be removed to defeat creditors, but its con- veyance for that purpose is good ground for attachment.^* 1 Merchants' Bank v. McKellar Robinson Notion Co. v. Ormsby, 33 (La. Ann.), 11 So. 572. Neb. 665. 2 Rice 1-. Morner, 64 Wis. 599. Com- 9 Ott v. Smith, 68 Miss. 773. pare Butts v. Peacock, 23 id. 359. i" stein wenderr. Creath, 44 Mo. App. 3 Gray v. Neill. 86 Ga, 188 ; Brown 356. V. Massman, 71 id. 859. S'ee Loeb v. i^Day v. Kendall, 60 la. 414. Smith, 78 id. 504 12 Bank of Commerce v. Payne, 86 4 Crow V. Beardsley, 68 Mo. 435 ; Ky. 446. Pilling V. Otis, 13 Wis. 495. 13 Kline v. O'Donnell, 11 Pa. Co. Ct. sBurgert v. Borchert, 59 Mo. 80. 38, in construction of the Pennsyl- 6 Stewart v. Cabanne, 16 Mo. App. vaniaDebtors' Actof 1869; Continen 517. tal N. Bank v. Draper, 89 Pa. St 446 "Haralson v. Newton, 63 Ga. 163; Keene v. Sallenbach, 15 Neb. 200 Washburn v. McGuire, 19 Neb. 98. Thompson v. Baker, 141 U. S. 648 ^ Claflin V. Rodenberg, 95 Ala. 249 ; Connor r. Follansbee, 59 N. H. 124 62 STATUTORY GKOUNDSl [§ YO. § TO. A firm, when largely indebted,' sold goods to a brother of the partners, who was a merchant doing business in an- other state. This was held to create no presumption of fraud. ^ An offer of settlement made to a plaintiff may tend to prove fraud as to other creditors but not as to him.^ Sale, or removal of property be\^ond the jurisdiction, gives no ground for attachment if it is done in good faith.^ Transfer- ring all his property to raise money to pay his debts, the debtor gives no ground for attachment as though he had done so to defeat creditors.* And sale and conveyance for his own use affords no ground if the seller is solvent,^ Selling cheaply to attract customers by a merchant was held not to warrant attachment.^ A sale to procure necessaries for the debtor's family was held no ground." Fraudulent intent is not pre- sumed from the mere fact that creditors have been hindered.^ It is a question of fact to be proved.^ Appearances indicating fraud, without any substantiation of fraudulent intent, are insufficient as ground for attaching.^" " About to convey fraud- ulently" is not supported, as a ground, by merely showing discrepancy in the debtor's statement of his accounts, when the statement is mainl}^ true.^^ Whether the transfer of propert}?" is in fraud of creditors is alwa^T^s a question dependent upon the animus of the debtor and the circumstances of the transaction.^- Ordinarily it is not necessary that the transferee 'should be a participant in the fraud in order to enable the attaching creditor to make the requisite affidavit,^^ though there are exceptions." The Seckendorf v. Ketchum, 67 How. i*) Ferguson v. Chastant, 35 La. Aun. Pr. 5-26. 339 ; Lehman v. McFarlaud, 35 id. 1 Marx V. Strauss, 93 Ala. 453. 624 ; Rice u Pertuis, 40 Ark. 157. 2 Cliaffe V. Mackenzie, 43 La. Ann. n Mack v. Jones, 31 Fed. 189. 1063. 12 Curtis v. Hoadley, 29 Kan. 566 ; 3Hunteru Soward, 15 Neb. 215. Clark v. Smith, 7 B. Men. 273; * Ladew v. Hudson Shoe Co., 61 Spencer v. Deagle, 34 Mo. 81 ; Eosen- Hun, 333; Saddlery v. Urner, 24 Mo. field v. Howard, 15 Barb. 546; Mc- App. 534. Kinney v. Farmers' Bank, 104 111. 5 Willis V. Lowry, 66 Tex. 540. 180. 6 Mack V. Jones, 31 Fed. 189. 13 Enders v. Ricliards, 33 Mo. 598; 7 Estes V. Fry, 22 Mo. App. 80. National Park Bank v. Whitmore, 8 Dempsey v. Bowen, 25 111. App. 104 N. Y. 297. 193. 14 Johnston v. Field, 63 Ind. 377: 9 Shove V. Farwell, 9 111. App. 256. Fraudulent conveyance, to be sus- § 71.] FKAUDULENT DISPOSITION OF PKOPERTT. 53 admissions and declarations of the debtor are to be consid- ered when fraud is a matter of inference from a given state of facts, whether concerning a conveyance of property within the state by deed of sale, or the removal of it beyond the bounds of the state, or any other disposition of the debtor's property ; and the sale of it, and subsequent concealment of the money received, under the broad statute ground, " fraud- ulent disposition of property and effects," may be sufficient to support attachment.^ § 71. Fraudulent disposition in general. — It is not a usual requirement that the fraudulent disposition of property must be within the state in order to afford ground for attachment.^ Fraudulent disposition to cheat, hinder, delay or defraud creditors is a ground for attachment,^ whatever the method of disposing of the property in violation of statute. If it is to defeat one creditor another may attach.* If it is of firm propert}^ by one member of an insolvent firm to pay his personal debts, the firm's property may be attached.^ The creditor's belief that his debtor is about to dispose of his prop- erty to defraud creditors is good ground for attaching, though it may afterwards occur that the debtor absconds instead of doing as had been supposed. A junior, attaching on the latter ground, was not ranked above the first attacher on ground of belief.** If good ground for attaching exists, the fact that the debtor intends to make a general assignment does not pre- clude the creditor from proceeding.'^ A debtor may be about to assign all his property for the benefit of his creditors without giving occasion for the cred- itor to attach,^ unless there are circumstances indicating fraud ; tained as a ground of attachment 3 Gray v. Blackwell, 86 Ga. 188. under 2d Ind. Rev. Stat, p. 232, Attachment may lie against a foreign § 526, must be such that both the corporation for fraudulent conver- purchaser and the debtor who sold siou of its own stock. 22 N. Y. S. 695. were guilty of fraud. In Leitens- '' Sherrill v. Bench, 37 Ark. 560. dorfer v. Webb, 1 New Mex. 34, it ^ Keith v. Armstrong, 65 Wis. 225. was held that an assignment fraud- ^ Boyd v. Labranche, 35 La. Ann. ulent in law, though not in fact, was 285. ground for attachment. '' Solinsky v. Bank, 1 Pickle (Tenn.), iBulleue v. Smith. 73 Mo. 151; 368. Powell r. Mattlievvs. 10 Mo. 49. s Sweet v. Reed, 12 R. I. 119; 2Kibbet'. Wetmore, 31 Hun, 424; Campbell v. Warner, 22 Kan. 604; 88 N. Y. Supreme Ct. 424 Wilson v. Britton, 6 Abb. Pr. 97 ; 54 STATUTORY GROUNDS. [i'Ti. and, in the latter case, a threat to assign may support the allegation of being about to make fraudulent disposition of property.^ Confession of judgment in favor of a third per- son for the purpose of keeping property out of the reach of a creditor, or fraudulent assignment for that purpose, is suffi- cient indication to conceal, such as to warrant attachment.^ The debtor's threats to defeat his creditor by putting property out of the reach of ordinary process;^ his declarations of in- tent, and more especially his conduct, may be given in evi- dence to prove his animus. Even the statements of one part- ner showing -fraudulent acts of another member of the firm may give rise to such inference against himself as to afford ground for attachment.'* There are many cases in which attachment is a proper rem- edy because it will not do to trust to ordinary process, the circumstances being such as to bring the debtor within the statute of the state where the suit is brought against a non- resident, absent, absconding, or property-concealing debtor, yet such as seem to require no special treatment.^ Dickinson v. Benliam, 10 id. 390; Eldridge v. Philliiison, 58 Miss. 270 ; Fitzpatrick v. Flannegan, 106 U. S. 650; Harris v. Capel], 28 Kan. 117. 1 Wiiite V. Leszynsky, 14 Cal. 165 ; Newman v. Kraim, 34 La. Ann. 910; Gasherie v. Apple, 14 Abb. Pr, 64. In Kansas, preference given to certain creditors is no ground for chai-ging fraudulent disposition of property. Campbell v. Warner, 23 Kan. 604. Nor is it in any state where making preferences is legal. 2 Leitensdorf er v. Webb, 1 New Mex. 34 ; Field v. Livermore, 12 Mo. 218. 3 Orr V. Lindsey Shoe Co., 82 Tex. 273. ComjKire Farwell v. Furniss, 67 How. Pr. 188. ■* Bryant v. Simoneau, 51 111. 824 : Undei" the charge that the debtors ■were removing their property from the state to defraud creditors, the at- tachment was sustained upon proof that one of the debtors had admitted that his partner had absconded and taken most of the firm's assets with him out of the state, leaving him to pay the debts. The remaining debtor was deemed to have been cognizant of the acts of the absentee, and to have par-ticipated in the fraud. New- man V. Kraim, 34 La. Ann. 910: Threats to dispose of property, good ground. Fraudulent transfer by one of two insolvent parties justifies at- tachment upon a joint demand against both. Hirsch v. Hutchinson, 64 How. Pr. 366. If two partners are charged with fraudulent disposition, proof against one is sufficient to hold the firm, Wilson v. Cole, 26 Mo. App. 5. 5 Sloan V. Bangs, 10 Rich. (S. C.) 15 ; Dunn V. Myers, 3 Yerg. (Tenn.) 414 ; Strattou V. Brigham, 2 Sneed (Tenn.), 420 ; McCaulley v. Shune, 5 Harring- ton (Del.), 28; Sparks v. Zebley, id. 353; Haber v. Nasitts, 12 Fla. 589; Bowers v. Beck, 2 Nev. 139 ; Taylor V. Knox, 1 Dall. 158; Shipmau v- §§ 72, 73. EXCEPTIONAL GROUNDS. 55 § 72. An intent to defraud cannot be inferred from prefer- ence given to certain creditors over others in a general as- signment where such preference is not inhibited.^ The partner of a firm, under such absence of statutory restriction, may prefer his own creditors to those of the partnership. An as- signment would be void on the ground of fraud which should divert partnership property from the payment of partnership debts; prevent the creditors of a firm from making their money out of the assets of the firm.- But it has been held that partners, upon the voluntary dissolution of their firm, may transfer, for a valuable consideration, all thejr joint assets to a single member free from the claims of the partnership joint creditors.* When one of two partners dies, the survivor, if no proceeding to liquidate the partnership affairs be pend- ing, may treat the firm assets as his own.^ Should he then apply them to the payment of his individual debts, it is held that his act will be valid if done in good faith.'^ But if a partner in ah insolvent firm applies its money to his own debts, it is a fraudulent disposition and a ground for attach- ment.^ YI. Exceptional Grounds. § 73. Frmidulently contracting or incurring the debt. — AVhen ordinary process may be employed effectually, the au- thorization of the extraordinary is anomalous. There are sev- Woodbury, 2 Miles (Pa.), 67 ; King v. Md. 380 ; Jenners v. Doe, 9 Ind. 464 ; Cooper, id. 176 ; Kennedy v. Baillie, Johnson v. Thweatt, 18 Ala. 744 ; 3 Yeates (Pa.), 55 ; Naylor v. French, Forbes v. Scaunell, 13 Cal. 243 ; Nye 4 id. 241 ; Wilson v. Britton, 6 Abb. v. Van Husan, 6 Mich. 329 ; Jackson Pr. 33; Weiller v. Schreiber, 11 Abb. v. Cornell, 1 Sandf. Ch. 348; Ni'chol- N. Cas. 175. son v. Leavitt, 4 Sandf. S. C. 307 ; • Lord V. Devendorf, 54 Wis. 491 ; Kirby v. Scoonmaker, 3 Barb. Ch. 46. Spring V. Insurance Co., 8 Wheat. 3 story on Partnership, § 358; 268 ; Brashear v. West, 7 Pet. 608 ; Schmidlapp v. Currie, 55 Miss. 597. Eldridge v. Phillipson, 58 Miss. 270 ; ^ Locke v. Lewis, 124 Mass. 1. Fitzpatrick v. Flannagan, 106 U. S. ^ Roach v. Brannon, 57 Miss. 490. 648; McGinty v. Flannagan, id. 661. 6 Keith v. Armstrong, 65 Wis. 225; 2 Wilson V. Robertson, 21 N. Y. Evans v. Virgin, 69 id. 167 (same 587 ; Lester v. Abbott, 88 How. Pr. parties, 72 id. 427) ; Landauer v. Vie- 488 ; Dunham v. AVaterman, 17 N. Y. tor, 69 id. 442 ; Powers v. Large, id. 9 ; Johnson v. McAllister's Assignee, 627 ; Clark v. Lamoreaux, 70 id. 513. 30 Mo. 327 ; Rosenberg v. Moore, 11 56 STATUTORY GEOUNDS. * [§ 74. eral states, however, which allow attachments not merely on the grounds we have considered, but also on some specified ones not akin to the concealment of person or property, or to the debtor's non-residency, or to anything rendering prelimi- nary seizure for eventual execution necessarj'- to the collection of debts. One of these exceptional grounds is the fraudulent contracting or incurring of the debt. The authorization is that if the creditor make oath that the debt he sues upon was fraudulently contracted or incurred b}^ the debtor he may at- tach to secure it. The debtor may be living permanently as a citizen of the state, within the court's jurisdiction, evincing no s3nTiptoms of a disposition to run away or to hide himself or his property. The creditor need not swear that he believes his debtor likely to do any of these things. It would not hurt his affidavit were he to swear to the contrary; it would be mere surplusage to the statutory requirement that he swear to the fraudulent contracting. If the idea of the legislator was that a man capable of mak- ing a fraudulent contract is likely to defeat ordinary process in some way, why would not the reason apply to all dishonest persons? Why not make the oath of the creditor, that he believes his debtor to be dishonest, a ground for attaching? It will be perceived that the legislative authorization of the remedy, when the debt sued upon was fraudulently con- tracted, rests on a different principle from that supporting the authorizations heretofore considered. § 74. It has been held that, when fraudulent contracting is the ground, the attachment will fail if a part of the debt was honestly contracted;^ that if obtaining money under false pretenses is the ground, it will not hold if the evidence shows that only a small part of the debt was thus created.^ Thus, though the debtor be dishonest, he may escape the harsher process ; so the exceptional authorization is not based on his dishonesty or the idea that he is not trustwortliy to hold his property till execution can be issued in the ordinary way. The fraud must have been practiced when the debt was con- tracted, not afterwards when the contract was renewed,* lEstlow V. Hanna, 75 Mich. 319. » First N. Bank v. Eosenfield, 66 See McGovern v. Payne. 33 Barb. 83. Wis. 393 ; Wachter v. Famachron, 63 2 Stiff V. Fisher, 3 Tex. App. 346. id. 117. § To.] EXCEPTIONAL GROUNDS. 57 though untrustworthiness may be evinced on the novation of a debt as well as at its creation. "What act or practice or false pretense will come under the statutory phrase, "fraudulently incurring" or "fraudulently contracting" the debt sued upon? False professions of solv- ency ; ^ false statements in trade ; ^ buying goods to get posses- sion and selling them without payment ; ^ embezzling money ; * buying without any intention of paying,-^ and many other ex- amples of " fraudulently contracting " or "fraudulent!}^ incur- ring," within the statute of the state where the phrase (or a similar one) occurs, appear in the books." § 75. Attachment is allowed in Georgia, in a suit for " money had and received," to recover a sum paid for stock in a foreign corporation, on the ground that it was fraudu- lently obtained from the plaintiff.^ The following seems a clear statement, made in construc- tion of the Missouri statute, but which would fit as well all others containing the same provision as to fraudulent con- tracting: "The debtor must have been guilty of some mate- rial deceptive act, word or concealment, done or suffered by him with the intent to induce the opposite party to consent to the debt. The opposite party must have relied upon such false acts or manifestations of the debtor, and yielded his consent to the contract on the faith thereof. In this manner alone results a debt fraudulently contracted on the part of the debtor."^ But it is held in Mississippi that the debtor's ■ 1 Wachter v. Famachron, supra. 624 ; Campion, etc. Co. v. Searing, 47 2 Littlejohn v. Jacobs, 66 Wis. 600 ; Hun, 237 ; Walker v. Beaury, 7 Pa. Young V. Cooper, 12 Neb. 610. Co. Ct. 258 ; Yates v. Dodge, 123 111. 3 Strauss v. Abrahams, 32 Fed. 310. 50 ; Stanhope v. Swafford, 77 Iowa, But in an action to recover damages 594 ; Cole v. Aune, 40 Minn, 80 ; for fraudulently obtaining goods, at- Kuehn v. Paroni, 20 Nev. 203; Raw- tachment was denied in New York, lins v. Powers, 25 Neb. 681 ; Estlow Whitner v. Von Minden, 27 Hun, 269. v. Hanna, 75 Mich. 219 ; Mudge v. See Rosenthal v. Wahre, 58 Wis. 621, Steinhart, 78 Cal. 34 ; Godden v. Pier- * Cole y. Aune, 40 Minn, 80. Com- son, 42 Ala 370; Curtis v. Hoxie pare Finley v. Bryson, 84 Mo, 664. (Wis,), 59 N. W. 581. 5 Blackwell v. Fry, 49 Mo. App. 638. ^ Grangers' Ins. Co. v. Turner, 61 6 First N. Bank v. Swan, 3 Wyo. Ga. 561. 356; Mackey v. Hyatt. 43 Mo. App. SFinlay v. Bryson, 84 Mo. 664. See 443; Gries t\ Blackmau, 30 Mo. App. further as to Missouri statute: St. 2 ; Strasburger v. Bachrach, 59 Hun, Louis Type Foundry v. Printing Co., 58 STATUTORY GROUNDS. [§ 76. design not to pay when contracting need not be shown to support the charge that he contracted the debt fraudulently.^ Yet it had been held in the same state that his animus must be considered when fraudulent contracting is the ground of the attachment.^ If funds were lawfully received, their sub- sequent misapplication will not support attachment, in a suit against the recipient, on the ground that the debt was fraud- ulently contracted.^ If the debt was fraudulently contracted, the contract itself is null as to any advantage the wrong-doing party might claim; so a note given pursuant thereto has no time at which it may become due. There may be attachment without awaiting the nominal date of its maturity.* §70, Other anomalous grounds. — Authorization of attach- ment because the debtor has come into the state and secretly brought his goods with him, after having absconded from his own state, is exceptional to the prevalent system ; for such a state of things may exist and yet ordinary process be avail- able in the state into which he has removed. In such case,, however, the extraordinary remedy is allowed to a non-resi- dent creditor against the new-comer in Tennessee.^ This is held not to disturb the exclusive chancery jurisdiction over property of non-residents when the creditor's remedy in their state is shown to have been exhausted." There are several other anomalous grounds peculiar to a few states, such as failure to apply income, etc., received after contra-cting the debt to its payment, failure to pay for work on its completion; when the obligation was incurred in con- ducting a steamboat on the waters of the state, etc. These and others are stated under the first head of this chapter. 3 Mo. App. 142; City Bank v. Phil- •* Muser v. Lissner, 67 How, Pr. 509 lips, 23 Mo. 85 ; Holland v. Ander- 5 Act of 1870, ch. 122, § 1, amend- son, 38 id, 35 ; Bryan v. Hitchcock, atory of Tenn. Code, § 3455 ; Mer- 43 id. 527 ; Wannell v. Kem, 57 id. chant v. Preston, 1 Lea, 280. See 478 ; Bailey v. Smock, 61 id, 213. Beasley v. Parker, 3 Tenn, Ch. 47. 1 Marks v. Stoner (Miss.), 11 So. 186, 6 Taylor v. Badoux, 92 Tenn. 249 ; 2 Marqueze u Southeimer, 59 Miss. 21 S. W, 522; Mill & V.'s Code, 430 ; Miss. Code of 1880, § 2415. §§ 4993, 5040. ^Goss V. Boulder Co. Comm'rs, 4 Colo. 468. CHAPTER III. THE PETITION AND CAUSE OF ACTION. I. Averments and Prayeb §§ 77-83 II. Amendments 8t-87 III. Amendments Affecting the Defendant 88-91 IV. When the Petition Should be Filed 92, 93 V. Action on Breach op Contract 94-97 VI. Debt Not Due but Certain 98-100 VII. Exceptional Causes of Action 101, 102 VIIL Attachments Aided by Equity 103, 104 I. AVERMEXTS AND PkATEE. § 77, Form. — The petition, complaint or declaration is in the usual form of any action at law for debt, with the additional statement of the grounds of attachment and prayer for the writ. When the petition is filed without the design of at- taching it is usual to file a supplemental petition to make the additional statement and prayer when it has been found nec- essary to attach. It has been held that, while the petition is necessary to an attachment,^ a prayer for the writ is not nec- essary ; 2 but it is usual and certainly congruous and logical to ask for the issue of the writ as the means of effecting the purpose of the petition. There should be prayer for judgment with privilege upon the property attached or some recognition of the lien, but in some states it is not essential.'' In other respects there is nothing peculiar. As in all personal actions the peti- tion or declaration must show to what court it is addressed, who are the parties, etc., whether the case turns out to be wholly hi rem or not. § 78. Essentials. — The petition must set forth the cause of action, the amount and nature of the demand,* and the grounds 1 Garrett r. Taylor, 88 Ga. 467. ^Aultman v. Baggs, 50 Mo. App. 2DeCausseyu Bailey, 57 Tex. 665. 280; Bartlett v. Ware, 74 Me. 292; ' Baltimore Bank n Teal, 4 Belfast Savings Bank v. K. L. & L. Hughes, C. C. 572 ; De Caussey v. Co., 73 Me. 404 ; Hirsh Brothers v. Bailey, 57 Tex. 665. Thurber, 54 Md. 210 ; Simpson v. 60 PETITION AND CAUSE OF ACTION. [§ 79. for attachmeut, or a reference to the affidavit containing them. Tliere is usually a reference to the bond filed with the petition, when the statute fixes the amount (as that it shall be twice the sum of the claim); and when the amount of the bond is to be fixed by the court, the prayer is that the writ be issued upon compliance with the order fixing the amount. Where the statute prescribes the essentials of a petition for attachment, as that the claim shall be set forth in counts, it is held that there can be no lien created unless the form is observed.^ Where no form of pleading is insisted upon, as is often the case in justices' courts, it has been considered suffi- cient to state the cause of action in the affidavit,- instead of stating it in both the petition and affidavit as usual. § 79. Petition and affidavit should agree. — There should be consistency between the petition and affidavit as to the cause of action ^ and the grounds of attachment. If they are fatally variant, the attachment may be quashed on motion.* When the variance may be reconciled by construction, there ought not to be dissolution of attachment by motion. A petition which alleged the defendant to be a resident of the state and also stated that he was a non-resident was not so bad as to cause the dismissal of the attachment.^ When the afiidavit alleged that the debt had been fraudulently contracted, and the declaration averred breach of warranty, the difference was reconcilable.^ Essential averments of the petition cannot be supplied by Burch, 4 Hun, 315 ; Seaver v. Fitz- There need be no election between gerald, 23 Cal. 85 ; Sueterlee v. Sir, counts when they are not contra- 25 Wis. 357; Mackubin v. Smith, 5 dictory of each other. Cadwell v. Minn. 3G7 ; Harrington v. Loomis, 10 Corey (Mich.), 51 N. W. 888. This id. 366; Gemmell v. Rice, 13 Minn, was relative to a declaration for dani- 400 ; Byrne v. Roberts, 31 Iowa, 319 ; ages. Espey V. Heidenheimer, 58 Tex. 662 ; 2 Holman v. Kerr, 44 Mo. App. 481. Ogden V. Walters, 12 Kan. 282 ; Diet- 3 Deering v. Collins, 38 Mo. App. 80 ; rich u Lang, 11 Kan. 636; King v. Caldwell u Hale^^ 3 Tex. 317. Harrington, 14 Mich. 532 ; Van Wyck 4 Focke v. Hardeman, 67 Tex. 173 ; V. Hardy, 4 Abb. App. Dec. 496 ; Merchants' Bank v. McKellar, 44 La. Stienle v. Bell, 12 Abb. Pr. (N. S. )171 ; Ann. 940. Bixby V. Smith, 49 How. Pr. 50; 5 citizens' Bank v. Hancock, 35 (S. C, 5 Thompson & C. 279) ; Dron- La. Ann. 41. illard v. Whistler, 29 Ind. 552. " Hambrick v. Williams, 65 Miss. 18. iBriggs V. Hodgdon, 78 Me. 514. §§ so, 81.] ATERilENTS AXD PKATEK. 61 the aifidavit, as a general rule;^ but when found in the latter, it is said the court has jurisdiction though no complaint has been filed, so that defects are curable.- When complaint has been filed its defects may be aided, explained and sometimes eked out by the affidavit.^ And, on the other hand, a sworn petition may suppl}^ the want of an affidavit ; it would be one, and would answer every purpose if all the requirements of the statute governing should be observed. § 80. The petition may exceed the attachment in the state- ment of the amount ; that is, the attachment may be for but a part of the plaintiff's demand.* Failure to recite matters in the complaint or petition which are sworn to in the affidavit is irregular, but not available by a junior attacher as an objection sufficient to set the first at- tachment aside.* § 81. An insufficient affidavit cannot be cured by the aver- ments of the petition. The affidavit is not a part of the plead- ings, nor are the pleadings any substitute for the affidavit. Though a sworn petition may embrace the character of both a petition and an affidavit, it should be separate, for various apparent reasons ; especially when the practice is against stat- ing the grounds for an attachment in the petition.** The plaintiff, as a prerequisite to the obtaining of a writ of attachment, must insert in his petition, if that is to take the place of an affidavit or perform its office, that the debt sued for is just, due, or w^hatever else may be specified by the stat- ute which governs him.' If the petition is not sufficient as an affidavit, its subsequent amendment will not avail. J Garrett v. Taj^lor, 88 Ga. 457. was held in Louisiana (where peti- ^ Lehman v. Lowman, 50 Ark. 444. tions are not sworn to) that, if the ?Clarkz7. Miller (Ky.), 10 S.W. 277; absence of the plaintiff is disclosed Kolb V. Cheney, 63 Ga. 688 ; King v. therein, it need not be shown by the Tiiompson, 59 id. 380. affidavit. Farley v. Farior, 6 La. Ann. ^Dwyer V. Testard, 65 Tex. 433. 725. Indebtedness stated onh' in the s Baker v. Ayers (Ark.), 25 S. W. bill: Foster r. Hall, 4 Humph. (Tenn.) 834; Sannoner v. Jacobson, 47 Ark. 346; and that defendant was about 31 ; Rice v. Dorrian, 57 id. 545. to remove property : Lester v. Cum- 6 Harrison v. King, 9 Ohio St. 338. mings, 8 Humph. 385. But the lat- ■^Endel v. Leibrock, 33 Ohio St. ter is a ground for attachment, and 254; Garner v. White, 23 id. 192; must be supported by oatli. Dunlevy v. Schwartz, 17 id. 640. It 62 PETITION AND CAUSE OF ACTION. [§§ 82, 83. § 82. Though the petition may supply deficiencies of the affidavit, if made upon the oath of the petitioner,^ yet if the allegations are not made on personal knowledge, the affidavit is not aided by reference to it as to matters which must be stated on such knowledge.^ The petition and affidavit must correspond in all essentials. Conflict as to the time of the maturity of the debt is fatal. ^ In such a case, however, the plaintiff has been allowed to file a new affidavit.* An affidavit may be explained and aided by the petition w^hen the claim is not fully stated in the former;^ but not if the petition itself is contradictory in its statements.^ When an attachment record is offered in evi- dence in another case, the petition may supply a lacking affi- davit even as to the ground of non-residency, it has been held.^ If the record shows that an affidavit was filed, and the peti- tion does not aver the filing, there is no fatal error of plead- ing, provided there is reference to the affidavit, so that the filing may be inferred.^ It is otherwise when there is nothing from which the inference can be drawn. ^ § 83. Where the petition stated the amount due as less than that stated in the affidavit and writ, the attachment was quashed.^** But in Colorado, when the petition varied with the affidavit as to the amount of damage claimed, the attach- ment was sustained. ^^ If a note, sued upon and attached to the petition, shows that it IS not due, neither the petition or affidavit need aver the same fact, it is held.^- But all the necessary facts must 1 Wirt V. Dinan, 44 Mo. App. 583 ; State v. Williams, 77 Mo. 463 ; Ed- Shaffer V. Sandwall, 33 la. 579 ; Scott mundson v. Phillips, 73 id. 57 ; Hurt V. Doneghy, 17 B. Mon. 321; Watts v. Hahn, 61 id. 496; Schultz v. In- V. Harding, 5 Tex. 386; Wessels v. surance Co., 57 id. 331; Corpenny Boettcher, 69 Hun, 306. v. Sedalia, 57 id. 88. 2 Haebler v. Bernharth, 115 N. Y. ^ Staley, etc. v. Wallace, 21 Mo. App. 459. 129 ; Schaller v. Van Warmer, 33 Mo. 3 Evans v. Tucker, 59 Tex. 249. 387. 4 Dalsheimer v. McDaniel, 69 Miss. i" Moore v. Corley (Tex.), 16 S. W. 839. 787. 5 Hart V. Barnes, 24 Neb. 782. ii De Stafford v. Gartley, 15 Colo. 6 Marshall v. Alley, 25 Tex. 342 ; 32 ; Code Civ. Proc, § 96 ; Gen. Stat. Meyer v. Evans, 27 Neb. 367. Colo., ch. 25. § 223. 7 Miller v. Chandler, 29 La. Ann. 88. i-' Panhandle N. Bank v. Still (Tex.), 8 State V. Pace, 34 Mo. App. 458 ; 19 S. W. 479. §§ 84, 85.] AMENDMENTS. 63 appear in the affidavit, if no petition has been filed,^ — though there need be nothing anticipatory of defenses.- It is held that a proceeding to dissolve the attachment, and not demurrer to the petition, is the proper remedy, where the cause of action does not warrant the extraordinary remedy.' II. Amendments. § 84. When allowed. — If there is a serious blunder in the petition which the affidavit cannot relieve, such as the mis- joinder of defendants, the plaintiff should amend, if allowed.^ There can be no joinder of plaintiffs, each having a separate claim.'' When both the petition and affidavit were defective as to the maturity of the debt, the plaintiff was allowed to cure the defect by an amended petition ; ^ but this should not be permitted after the levy where attachments are confined to debts due, and oath to the fact of maturity is jurisdictional. But it has been held that the petition may be amended to correspond with the writ and affidavit after the issue of the writ.^ A petition alleged that the defendant was indebted to the plaintiff on a promissory note described. Upon the defend- ant's denial that he had executed the note, the plaintiff amended by alleging that he had loaned money to the defend- ant and that the debt was due when the suit was instituted. The attachment was sustained — the indebtedness was held to have existed when the writ was issued.^ § 85. As to cause of action. — A petition on a promissory note was amended to aver that the defendant had agreed to pay, for a valid consideration paid by the maker ; the court holding that the amendment did not state a cause of action different from that alleged in the original petition, which 1 Fisher v. Secrist, 48 Fed. 264. * Starr v. Mayer, 60 Ga. 546. 2 Essex Co. Bank v. Johnson, 61 & Corrothers r. Sargent, 20 W. Va. Hun, 625. 351. 3 Rich V. Thornton, 69 Ala. 473; 6 Panhandle N. Bank u Still (Tex.), Brown v. Coats, 56 id. 439 ; Wright 19 S. W. 479. V. Snedicor, 46 id. 92 ; Van Dyke v. '' Puckett v. Drug Co. (Tex. App.), State. 24 id. 81 ; Roberts v. Burke, 6 20 S. W. 1127. id. 348; Cain v. Mather, 3 Porter, ^Cawker, etc. Bank v. Jennings oo 4. (la.), 56 N. W. 494. 64 PETITION AND CAUSE OF ACTION. [§§ 86, 87. averred that the defendant was liable as the surviving part- ner of the firm which had made the note. The defendant's liability being alike under either, the attachment under the first averment could not be dismissed under the second.^ If a new cause of action is to be alleged, it must be by a new sup- plemental or amended petition,'^ but it would have no effect on the attachment already laid. If the original petition sets forth no cause of action for attachment, its amendment after the levy would be too late.^ 'New counts, not called for by the original declaration or necessary to complete it, will be deemed new matter as a general rule.* But it is held that the senior attacher does not lose his rank by adding an additional item of claim.^ § 86. Clerical errors. — The correction of an error in a name is allowable in a petition.^ The correction of any merely clerical error of the petition by the first attacher, after a second attachment has been laid by another creditor, would not cause the first to lose his rank; but if there be a radical change, the result would be otherwise.'^ It would not matter, however, if the amount of the claim should be increased, for that would not make the attachment cover the addition,^ nor would any similar change in the petition be fatal to an attach- ment already laid. § 87. As to iKirties. — An amendment, to make a partner of the plaintiff firm a party to the suit, was held not to affect the lien.^ An attachment suit, brought by an emancipated minor, was held not demurrable but amendable by substituting the name of a guardian appointed to represent him, according to the Montana Code of Civil Procedure, § 9. The amend- 1 Massey v. Blake, 3 Tex. Civ. App. 5 Schneider v. Roe (Tex,), 25 S. W. 57; Jones v. Blake, id. 783; Landa 58. V. Obert, 78 Tex. 46 ; Lee v. Boutwell, 6 Cain v. Rockwell, 132 Mass. 193 ; 44 id. 152; Roe v. Holbert (Tex. Civ. Wight v. Hale, 2 Cush. 486. App.), 18 S. W. 417; Svveetzer v. ' Suksdorff v. Bigham, 13 Oreg. Claflin, 82 Tex. 513 ; Compress v. 369. In this case it was further held Mitchell (Tex.), 14 S. W. 275. that the first attacher may increase - McRee v. Brown, 45 Tex. 503 ; the amount of his claim, by amend- Stewart v. Anderson, 70 id. 588. ing, without losing his priority over 3 Pope u Hibernia Ins. Co., 24 Ohio the second attache!'. St 481. 6 Cutler v. Lang, 30 Fed. 173. 4 Austin V. Burlington, 34 Yt. 506. 9 Henderson v. Stetter, 31 Kan. 56. I SS.] AMENDMENTS AFFECTING DEFENDANT. 65 ment did not affect the attachment to the injuiy of the de- fendant.^ Ordinarily it would be ground for abatement.^ A suit agrainst a minor is no more allowable in attachment cases than in any other. The defendant must be one who can stand in court. An attachment against the defendant "and his heirs" shows that it is against a dead man, and therefore void.' The jDctition in an attachment case based on tort as the cause of actiQU was amended after another attachment had bee 1 laid ; the court holding that the facts averred in the original petition warranted an action on contract.* III. Amendments Affecting the Defendant. § 88. Effect. — A petitioi may be amended, under leave of court, by supplement or otherwise ; but if the object is to ren- der a void attachment valid, the amendment would not have that effect. If, for instance, thu petition has been filed under oath, and no other affidavit is made, the amendment might cure the errors of the petition but not those of the affidavit — considering the sworn petition as such.^ An amendment re- lates to the commencement of the suit, if the proceeding is founded on a proper cause of action." It should never be per- mitted when it would work injury to any party in the case — intervenor, defendant or surety. When a motion to vacate an attachment, as void, is pending, no amendment of the peti- tion should be allowed, as a general rule.^ If there has been a departure from the usual practice, — such as failure to attach 1 Hoskins v. "White (Mont.), 33 P* its defects as an affidavit And the 163. See Young v. Young, 3 N. H. court said : '■ By an unbroken line 345 ; Blood v. Harrington, 8 Pick. 553. of decisions from the days of the re- - Drago V. JIoso, 40 Am. Dec. 593 ; public until the present time, an affi- Moke V. Fellman, 67 Am Dec. 656. davit for attachment cannot be 3 Purnell v. Frank, 68 Miss. 639. amended." See Brack v. McMahon, 4 Bank of Garfield Co. v. Bingham 61 id 1. (Oreg.), 13 P 1. 6 Tarkinton v. Broussard, 51 Tex. 5 In Marx v. Abraham, 53 Tex. 364, 550; Pearce v. Bell, 31 Tex. 690. A the plaintiff had sworn to the peti- new count, as to the debt, would so tion without any separate affidavit ; relate. Mendes v. Fi'eiters, 16 Nev. the petition was insufficient as an 388. affidavit ; the petition was amended : ^ Chattahoochee Brick Co. v. Sulli- held that the amendment cured the van, 86 Ga. 50. defect of the petition, as such, but not 66 PETITION AND CAUSE OF ACTION. , [§ 89. the affidavit to the petition when that is the legal course, — the cause should not be dismissed nor the attachment dis- solved, since it is within the power of the complaining party to require a copy of the omitted paper to be supplied.^ § 89. If the court already has jurisdiction but the averments of the petition fail to show it, it has been held that there may be amendment supplying the defect, and that it will relate to the filing of the original petition. Failure to aver that the parties were citizens of different states was allowed to be cured in this way. The court, so allowing, said : '• It is every- day practice to allow amendments of the character of those made in this case, and when they are made they have relation to the date of the filing of the complaint or the issuing of the writ or process amended. When a complaint is amended, it stands as though it had originally read as amended. The court in fact had jurisdiction of the cause from the beginning, but the complaint did not contain the requisite averments to show it. In other words, the averment did not create or con- fer the jurisdiction; it only brought on the record a proper averment of a fact showing its existence from the commence- ment of the suit. I " The right of the federal court to allow amendments under section 95J: of the Revised Statutes of the United States is well settled. The right exists quite independently of any state statute, and may be exercised at any stage of the cause, even after submission, and extends to the verdict and judg- ment, and is as applicable to attachment suits as to any others." ^ It will be observed that in this case "the court had jurisdic- tion of the cause from the beginning:" so where jurisdiction depends upon compliance with statute, non-compliance cannot be supplied by amendment and this decision relied upon lor authority. If the essentials of an affidavit for attachment are 1 Olmstead v. Rivers, 9 Neb. 234 Construction Co. v. Seymour, id. 646, 2Bowden v. Bmnham, 59 Fed. 754, 655; Hardin v. Boyd, 113 U. S. 756; citing Tilton v. Cofield, 93 U". S. 163 ; Tiernan's Ex'rs v. Woodruff, 5 Mc- O'Connell v. Reed, 56 Fed. 531 ; Lean, 135 ; Parks v. Turner, 13 How. People's Bank v. Egg-Case Co., 51 39, 46; Stockton v. Bishop, 4 How. id. 130; Erstein v. Rothschild, 22 id. 155, 168; Swatzelu Arnold, 1 Woolw. 61 ; Bamberger v. Terry, 103 U. S. 40 ; 383. Dow V. Humbert, 91 U. S. 294, 297 ; ^§ 90, 91.] AMENDMENTS AFFECTING DEFENDANT. 67 wanting, the extraordinary remedy cannot be rendered valid from the beginning by amendment. The defendant may, of course, take advantage of radical mistakes in the petition, sucli as a declaration on an " account stated " instead of a declaration "for goods sold and delivered," in states where such particularity is important.^ An inter- vener could not avail himself of such error.^ § 90. As to 2)ersonal suit — The general rule is : if the decla- ration is demurrable, the attachment must be quashed.' Of course the converse is not true; for an attachment may be dissolvable yet the petition hold good ; it may be good plead- ing in the personal action, correctly setting forth the indebt- edness and properl}^ praying for judgment, jet not alleging statutory grounds for attachment ; and there may be no affi- davit or no sufficient one. A plea to the jurisdiction may be sustainable with reference to the ancillary suit yet not to the principal ; for though the petition may be good and the defendant may have been served with summons, ma}'' have appeared, may have even joined issue in the main case, he may yet set up that the court has no power and authority to hear and determine the ancillary proceeding because the attachment was made without affidavit or without bond, or without such affidavit and bond as the statute requires, and that there was therefore no authority to issue the writ under which the attachment was made. Some of the states have fixed a limit to the amount of the debt, so that in a suit for a sum below that limit an attach- ment will not lie. In others there is virtual limitation by the confinement of the remedy to courts in which there is no jurisdiction in suits on demands below some specified amount.* § 91. As to sureties. — A surety brought an attachment suit against his principal for indemnity. There was an intervention by attachment. The surety amended his petition by alleging that the debt for which he was surety had become due and had been paid by him. His attachment ranked above that of the intervenor.^ 1 Mendes v. Freiters, 16 Nev. 388. ^ May v. Sibley, 60 Ga. 133 ; Bain v. 2 Id. Mitchell, 82 Ala. 304 3 National Bank V. Teal, 4 Hughes, 5 Bamberger v. Moayon (KJ^), 16 572. S. W. 27G. See Meyer v. Ruff (Ky.), 68 PETITION AND CAUSE OF ACTION. [§ 92. Sureties on an attachment bond are not discharged by an amendment of the petition which does not make their position ■worse or different.^ By the addition of several co-plaintiffs against the defendant's remonstrance, the sureties on his dis- solution bond were held to have been released.^ But such sureties were not released by the insertion of a new count in an attachment suit for personal injuries.^ lY. "When Petition Should be Filed. § 92. The time relative to the ivrit. — The logical order of pleading requires that the statement of the grounds and the praj'^er for the writ should precede the filing of the affidavit or accompany it. In practice, owing to the hurry frequently attending the bringing of attachment proceedings (as when goods are just about being spirited away), the order is some- times reversed — the affidavit being filed and the writ issued before the filing of the petition. Ko harm can ensue from such practice if the petition is filed on the same day or within reasonable time. Courts will not hypercritically note the hours, if both the petition and the affidavit have been filed before the issue of the writ, though the petition come later than the oath. But when a writ was served at 3 P. M., and the petition filed at 6 P. M. of the same day, the attachment was held invalid.* Courts might properly refuse to issue the writ without the prayer for it; but if, in their discretion and in the confi- dence which should exist between them and practicing at- torneys, the logical order should be reversed for a brief period, the debtor can have no cause to complain. Courts should not grant the writ without a duly filed petition for it, when aware of a pending contest between creditors, if, by granting it, one would thus acquire an undue advantage over another. Where the question of priority among attaching creditors depends upon the order in which writs are delivered to the 16 S. W. 84; Martz v. Pfeifer, 80 Ky. 3 Doran v. Cohen, 147 Mass. 342. 600. 4Seibert v. Switzer, 35 Ohio St. 1 Kellogg V. Kimball, 143 Mass. 125. 661. 2 Furness v. Read, 63 Md 1. § 93.] WHEN PETITION SHOULD BE FILED. 69 sheriff, the filing of the petition (or of the initial pleading re- quired for the institution of the suit according to the practice of the state where the suit is brought) should always precede the issuance of the writ; otherwise, a junior attacher may show that a writ, claiming to be prior to his, was issued with- out legal authority.^ Even the first levy will fail to give pri- ority if made before the filing of the petition asking for it, (or before the commencement of the suit in rightful form), though the affidavit, bond and writ may all be older than the initial pleading of the creditor who has made a later levy in strict compliance with law.- Indeed, the auxiliary proceeding depends for its legal existence upon the institution of the principal suit; and, without the latter, there is no authority for issuing a writ of attachment.* If issued, the writ is void; and if a non-resident's property be seized under it, there can be no legal notice of publication, and the court would not ac- quire jurisdiction.* § 93. Attacliment separately sued out. — A principal suit, and an attachment in aid of it separately sued out, may be brought on t4ie same day or even simultaneously ; and both ought to be entitled in the same case. They would, however, be so far separate and distinct proceedings that a defense to the an- cillary would not necessarily apply to the principal action.^ Whether instituted separately or not, the principal suit and the attachment proceeding are, in many respects, two differ- ent actions; ^ and tlije latter should not precede the former in the order of institution, for the reason that it is ancillary in character." "Wherever the plaintiff is required to declare upon an attachment consummated, the practice is different fron-i that above considered.^ 1 Ward V. Howard, 12 Ohio St. 158. 5 Schulenberg v. Farwell, 84111. 400. 2 Seibert v. Switzer, 35 Ohio St. ^ Ervvin v. Heath, 50 Miss. 795 ; De 661. Leon v. Heller, 77 Ga. 740. 3 Kerr v. Mount, 28 N. Y. 659 ; ' Furman v. Walter, 13 How. Pr. Waffer V. Goble, 53 Barb. 517; Kel- 348; Marsh v. Williams, 63 N. C. ley V. Strayer, 15 Hun, 97; Pope v. 371; Moore v. Sheppard,' 1 Met. (Ky.) Hibernia Ins. Co., 24 Ohio St 481; 97; Duncan v. Wickliffe, 4 id. 118; Endel v. Leibrock, 33 id. 254 : Woos- Frankeuheimer v. Slocum, 24 Ala. ter u McGee, 1 Tex. 17. 373; Fechheimer v. Hays, 11 Ind. * Endel v. Leibrock, 33 Ohio St. 478. 254. s Thomas v. Brown, 67 Md. 512. YO PETITION AND OATJSE OF ACTION. [§ 94. After a petition has been filed and writ issued, successive attachments may be laid under it, against the same defend- ant, and the}^ may be weeks or months apart from each other. Several attachments may be made simultaneously in different counties under the same petition in Texas. ^ When the plaintiff files a petition containing all that should be in an affidavit, and sv\^ears to it, he need not file a sepa- rate oath of the facts on which he asks that the writ may issue.^ In such case the paper filed need not be good as pleading, but it must be good as an aifidavit, in order to war- rant the granting of the attachment: its quality as pleading may bide its time to be tested. It may be in the form of an affidavit yet contain besides all the essentials of a petition.^ V. Action on Breach of Conteact. § 94. Cause of action. — The most general (and formerly the only) application of the remedy by attachment is to aid the creditor in collecting debt due him upon breach of the con- tract to pay, when any statutory ground for it exists.* It may- be the breach of a covenant of warranty,^ or of a contract to deliver property.^ Upon breach of contract debt arises.'^ An action for breach of war^ranty of title has been held such as to warrant the remedy of attachment under a statute au- thorizing that remedy in aid of any " moneyed demand." ^ Even an action for damages ex delicto has been included within the general authorization of attachment " for the re- 1 Sayles' Civ. Stat, art. 161 ; Brad- v. Hovey, 21 Pick. 445 ; Weaver v, shaw V. Tinsley ^Tex.), 23 S. W. 184. Puryear, 11 Ala. 941. 2 Miller v. Chandler, 29 La. Ann. 5 Cheney v. Straube (Neb.), 53 N. 88 ; Watts v. Harding, 5 Tex. 386, W. 479 ; Weaver v. Puryear, 11 Ala. 3 Dunn V. Crocker, 22 Ind. 324; 941. Shaffer v. Sundwall, 33 la. 579 ; Scott « Stiff v. Fisher, 2 Tex. Civ. App. V. Doneghy, 17 B. Mon. 321. 346 : Stiff v. Stevens, id. 295. 4 Boyer v. Bullard, 102 Pa. St. 555 ; ^ Lenox v. Howland, 3 Caines (N. Garland v. Cunningham, 37 id. 228 ; Y.), 323 ; Fisher v. Consequa, 2 Wash. Seeley v. Mo. etc. R. Co., 39 Fed. 252 ; C. C. 383 ; Jacoby v. Gogell, 5 S. & Dunn V. Mackey, 80 Cal. 104 ; Whit- Rawle, 450. Compare Atlantic Ins. ney v, Hirsch, 39 Hun, 325 ; Marty, Co. v. McLoon, 48 Barb. 27. In re, 3 Barb. 229 ; Milldam Foundry 8 Guy v. Lee, 81 Ala. 163. § 95.] ACTION ON BEEACH OF CONTRACT. 71 covery of money." ^ But where there must be a written in- strument for the direct payment of money, attachment will not be issued to aid a suit on an appeal bond.^ "While breach of promise to marr}^ is not a cause of action for attachment in the states generally,^ the demand for damages in such suit is a "money demand." § 95. The rule is that attachment will not lie on a claim for unliquidated damages for breach of contract.** But it is held that " if the contract itself fixes the amount due, or affords by its terms a certain measure for ascertaining the amount, an attachment will lie if the necessary jurisdictional facts ap- pear." ^ Though attachment may lie, under a statute, for failure to pay the price of goods delivered under a contract to pay on delivery, the time of payment may be modified by agreement so that the action would not lie under the statute.^ A suit to enforce liability under statute cannot be aided by attachment as though upon contract.^ But a suit on an at- tachment bond is a suit on contract and may be aided by attachment.^ An action to collect subscription to stock is upon contract and may be by attachment.^ It may be against a stockholder to recover his portion of a debt due to the plaintiff by the corporation in which the stock is held.^" But the stockholder's property cannot be attached for the whole debt, though the debt be no greater than the value of his own shares.^^ 1 Davidson v. Owens, 5 Minn. 69. 5 Derrickson v. Shovvell (Md.), 28 2Hurd V. McClellan, 14 Colo. 213. A. 896; Ins. Co. v. Andrews, 66 Md. S'ee Stebbins u Anthony, 5 Colo. 348 ; 371; McAllister v. Eichengreen, 34 People V. Boylan, 25 Fed. 594. Com- id. 54 ; Warwick v. Chase, 23 id. 154. pare Hathaway v. Davis, 33 Cal. 162. The plaintiff must give bond in an 3 Price V. Cox, 83 N. C. 261 ; Wil- attachment for unliquidated dam- son V. Manuf. Co., 88 N. C. 5 ; Barns ages in Maryland. Code, art. 9, § 43. V. Buck, 1 Lansing (N. Y.), 268 ; Thorn 6 Young v. Lynch, 30 Kan. 205. V. Knapp, 42 N. Y. 474. " Remington Paper Co. v. O'Dough- •» Hochstadler v. Sam, 73 Tex. 315 ; erty, 32 Hun, 255. Hecksher v. Trotter, 48 N. J. L. 419; « Withers v. Brittain, 35 Neb. 436. Moore v. Dickerson, 44 Ala. 485 ; 9 Kohler v. Agassiz, 99 Cal. 9. Hall V. Page, 4 Ga, 428. But see i" Kennedy v. California Bank, 97 Baumgardner v. Dowagiac Man. Co., Cal. 93. 50 Minn. 381; Tenn. River Transp. "Id. Co. V. Kavanaugh, 93 Ala. 324; Steadham v. Parrish, 93 Ala. 465. 72 PETITION AND CAUSE OF ACTION. [§§ 9G, 97. §96. Promissory note. — The renewal of a note creates a debt upon contract within the attachment statute.^ A note not clue cannot be sued upon by attachment under the au- thorization of the remedy to aid "any money demand."^ The drawer of an accommodation note, upon its being paid by him and surrendered to him, cannot attach property of his principal on the statutory ground in Colorado that the action is on a note, past due, for unconditional payment.^ Debt is not due by an indorser till notice of the maker's default ; so attachment will not lie against him before.* The drawer of a check was held liable only for the sum stated by him therein, though the check may have been raised by a holder and paid by tlie bank without discovery of the fraud. Only the original amount can be sued upon as due, and en- forced by attachment.^ A bank sells its draft on another bank for cash : this creates no attachable debt in a suit against the purchaser while the draft is outstanding without default.'^ § 97. Implied contract.— In a state where attachment must be for debt due upon contract express or implied, it was held that embezzlement was a breach of the contract of employ- ment, and that conversion created an implied contract.' This effect of conversion is recognized in sev^eral states, to the ex- tent that suit may be brought for the value of the converted property while it still is in the possession of the wrong-doer.^ In othei's, the property must first be disposed of — changed into money .^ Even if a judgment has been rendered for a wrong done, and action to recover brought upon it, the suit is not upon contract express or implied.^" 1 Stevens Point Bank v. Rosenfield, ^ Jones v. Gregg, 17 Ind. 84 ; Eogevs 66 Wis. 292. v. Arnold, 12 Wendell, 30 ; Cuui- 2 Monroe v. Bishop, 29 Ga. 159 ; mings v. Vorce, 3 Hill (N. Y.), 282 ; First N. Bank v. Moss, 41 La. Ann. Alsbrook v. Hathaway, 3 Sneed, 454 ; 227; Denegre v. Milne, 10 id. 324. Goodenow v. Snyder. 3 la. 599. 3 Fitch V. Hammer, 17 Colo. 591. 9 O'Reer v. Strong, 13 111. 688 ; Elliot 4 Claffin Co. V. Feibleman, 44 La. v. Jackson, 3 Wis. 649 ; Fuller v. Ann. 518; Ellis v. Harrison, 104 Mo. Duren, 36 Ala. 73; Smith v. Smith, 270 ; Cox V. Dawson, 2 Wash. St. 381. 43 N, H. 536 ; Balch v. Patten, 45 5Westcottv. Sharp, 50N. J.L. 392. Me. 41; Winchell v. Noyes, 23 Vt f- Capital City Bank v. Parent, 134 303; Jones v. Hoar, 5 Pick. 285; N. Y. 527. Gray v. Griffith, 10 Watts, 431 ; Cecil 7 Farmers' Bank v. Fonda, 65 Mich. v. Rose, 17 Md. 92. 533 ; Hancock Ins. Co. v. Moore, 12 ^ Id. ; McCoun v. N. Y. Central, Mich. 42. etc., 50 N. Y. 176 ; O'Brian v. Young, § 98.] DEBT NOT DUE BUT CERTAIN. 73 YI. Debt Xot Due but Certain. § 98. When action lies. — Where attachment is allowed on a debt not due, the defendant has no right, in a case on notes not due, to a judgment upon the merits on the plea that the debt had not matured when the action was brought, if the plaintiff is within the statute and proves the ground of the at- tachment.^ In Alabama the remedy applies to aid a debt not due when fraud is charged;- but judgment must be stayed till the maturity of the debt.^ In Missouri, where a debt not due may be a cause of action, there yet can be no attachment by the acceptor of a bill of exchange (to accommodate the drawer) unless the bill is due and payment has been made on it by the acceptor in w^iole or in part.* Prior to payment he is not a creditor. It is material that the plaintiff allege in his petition that the debtor has fraudulently disposed of his property when suing upon a debt not due in the state of Washington/^ Of course the ground must be proved, however good the cause of action f and the cause of action must be proved however good the ground.'^ Where a part of the claim is due, attachment is denied in many states — as in Illinois.^ Where a debt due and one not 95 N. Y. 428, 431 ; Taylor v. Root, 4 2 Ware v. Seasongoocl 92 Ala. 152 ; Keyes, 335. Compare State of Louis- Zelnicker v. Brigham, 74 id. 598 ; iana v. Mayor, 109 U. S. 285 ; Nazro Hubbard v. Allen, 59 id. 283. V. Oil Co., 36 Hun, 296 ; Gutta Percha 3 Jones v. Holland, 47 Ala. 732. Co. V. Mayor, 108 N. Y. 276 ; Gutta 4 Ellis v. Harrison, 104 Mo. 270 ; Percha Co. v. Houston, 46 Hnn, 237 ; Rev. Stat, of Mo. (1889), § 532 ; Hearne Donnelly v. Corbitt, 3 Said. 500. See v. Keith, 63 Mo. 84 ; Todd v. Shouse, further as to attachment suits on im- 14 La. Ann. 426 ; Read v. Ware, 2 id. plied contracts, Peat Co. v. Tuck. 53 498. Cal. 304; Monterey v. McKee, 51 Cal- 5 Cox v. Dawson, 2 Wash. 881. 255. 6 Deering v. Warren, 1 S. D. 35. 1 Hurtgen v. Kantrowitz, 15 Colo. ' Golden Gate Co. v. Jackson, 14 442 ; Colo. Code (1887), ch. 6 ; Woods Abb. New Cases, 323. V. Tanquary (Colo.), 34 P. 737. In 8 Schilling v. Deane, 36 III. App. Nebraska attachment on a debt not 513; Butler Paper Co. v. Printing due is confined to particular cases Co., 35 111. App. 152. Compare Ellis named in section 237 of the code. v. Harris, 104 Mo. 270 ; Rev. Stat of Caulfield v. Bittenger (Neb.), 56 N. W. Mo. (1889), § 522 ; Hearne v. Keith, 63 302. See Espenhain v. Mej'er, 74 Wis. Mo. 84. See Read v. Ware, 2 La. Ann. 379 ; Schunk v. Moline, 147 U. S. 500. 498 ; Cox v. Dawson, 2 Wash. 381. 74 PETITION AND CAUSE OF ACTION. [§§ 99, 100. due are both sued upon, attachment may be sustained as to the former though not as to the latter, where the statute re- quires that the debt shall be due.^ It was held by the circuit court of appeals in a Kansas case that a claim due and one not due might be sued upon together and aided by attach- ment.^ § 99. Debt — Certain. — The debt must be certain. Attach- ment is denied when suits are for alleged balances of un- settled accounts and the like ; when they are contingent.' And denied of course when the demand is fictitious.* The petition would be dismissed in the case of an action on a debt alleged in the affidavit to be due, if it should be shown that the allegation is false ; for in such case the action is de- pendent upon the validity of the attachment for its own ex- istence as a personal suit.^ The plaintiff must own the claim for which he attaches when he swears to the affidavit and obtains the writ. The subsequent purchase of it will not avail him; it will not enable him to amend his affidavit;*^ for the debt must be due to him when he sues. If the cause of action set forth in the petition is not one upon which attachment is authorized by statute, any attach- ment therein will be dissolved on rule, though the petition or declaration may be good in the personal suit.^ § 100. Place of i)aijment. — Debt must be payable in Oregon to admit of attachment there. The contract may be made out of the state but must be payable within it.^ So in Cali- 1 Ayres v. Husted, 15 Conn. 504. 5 Cox v. Reiuhardt, 41 Tex. 591. 2 Bowden v. Burnhana, 59 Fed. 752 6 Farvvell v. Wright (Neb.), 56 N. W. (following O'Connell v. Reed, 56 id. 984. 531). The syllabus adds: "without 7 Adair v. Stone, 81 Ala. 113; regard to state practice in respect to Drakeford u. Turk, 75 id. 339; Rice such joinder." v. Thornton, 69 id. 473 ; Dryer v. 3 Morris v. Everly (Colo.), 36 P. 150 Wheeler v. Farmer, 38 Cal. 203 Taylor v. Drane, 13 La. Ann. 62 Humphrey v. Matthews, 11 111. 471 Abercrombie, 57 id. 497; Brown v. Coats, 56 id. 439. But see First N. Bank v. Ragan (Ga.), 18 S. E. 295 (Ga. Code, § 3309), for a case in which Young V. Lynch, 80 Kan. 205 ; Tread- want of jurisdiction over the attach- way V. Ryan, 3 id. 437 ; Ackroyd v. ment rendered the general judgment Ackroyd, 20 How. Pr. 93; Johnson invalid. V. Short, 2 La. Ann. 277. Compare « Trabent v. Rummell, 14 Oreg. 17. Goble V. Howard, 12 Ohio St. 165. See Crawford v. Roberts, 8 Oreg. 326. ^Batetnan v. Ramsey, 74 Tex. 122; Jbhnson v. Heidenheimer, 65 id. 263. § 101.] EXCEPTIONAL CATJSES OF ACTION. 75 fornia.^ The situs of a debt due on the policy of a foreign insurance company was held not limited to the domicile of that company when it had an agency in another state which there disbursed its funds and paid its losses. When such agency, located in California, did business in the state of "Washington through a local agent in the latter, the assured there could sue the company in California and reach the debt by garnishment.^ A non-resident may attach on a cause of action arising out of the state.^ The pendency of an attach- ment suit between the parties in another state cannot be successfully pleaded on that state's statute against a suit in ]S'ew York.* But if the property there proceeded against is in the custody of the court of the foreign state (as it must be, to give jurisdiction), it could not be in the New York court at the same time. The res must be within the jurisdic- tion.^ YII. Exceptional Causes of Action. § 101. Tort. — The cases are numerous in which courts have held that attachment could not be maintained for torts, of- fenses, ^?ias2-offeuses and the like, for want of statute au- thorization.^ 1 Eck V. Hoflfman, 55 Cal. 501 ; Dal- Martin (La.), 276 ; Prewitt v. Car- ton V. Sheltou, 3 Cal. 206 ; Fuller v. michael, 2 La. Ann. 943 ; Greiner v. Arnold, 93 Cal. 166. See Smith v. Prendergast, 3 id. 376; Swager v Milk Co., 70 Hun, 348. Pierce, 3 id. 435 ; Holmes v. Barclay, 2Neufelder v. Insurance Co. (Wash.), 4 id. 63 ; IMarshall v. White, 8 Porter, 33 P. 870. 551 ; Austin v. Grout, 2 Vt. 489 ; Tar- 3 Sheldon v. Blanvelt, 29 S. C. 453- bell v. Bradley, 27 id. 535; Ferris v. < Douglass V. Insurance Co., 138 Ferris, 25 id. 100 ; Park v. Trustees of N. Y. 209. Williams, 14 id. 213 ; Hutchinson v. 5 Id. Lamb, Brayton (Vt.), 234 ; Emerson 6 Holcomb V. Winchester, 52 Ct. v. Paine, 9 Vt 271 ; Bradley v. Cooper, 447 ; 52 Am. Rep. 608 ; Piscataqua 6 id. 121 ; Hill v. Whitney, 16 id. 461 ; Bank v. Turnley, 1 Miles, 312 ; Ja- Stanley v. Ogden, 2 Root (Ct.), 259 ; coby V. Gogell, 5 Serg. & R. 450 ; Maxwell v. McBrayer, Phillips (N. C), Porter v. Hildebrand, 14 Pa. St. 129 ; 527 ; Minza v. ZoUicoffer, 1 Iredell Thompson u. Carper, 11 Humphreys, (N. C), 278; Sargeant v. Helmbold, 542 ; Fellows V. Brown, 38 Miss. 541 ; Harper (S. C), 219; Warwick v. McDonald v. Forsyth, 13 Mo. 549; Chase. 23 Md. 154; Gordon u Gaffey, Hynson v. Taylor, 3 Ark. 552; 11 Abb. Pr, 1 ; Shafifer u Mason, 18 Baune v. Thomassin, 6 Martin (La.), id. 455; Saddlesvene v. Arms, 32 N. S. 563; Hanna v. Loring, 11 How. Pr. 280; Raver v. Webster, 3 7G PETITION AND CAUSE OF ACTION. [§ 102. When a statute expressly authorizes attachment for injuries, except for libel, slander, assault and battery, false imprison- ment and seduction, it may be inferred that attachment will lie for any tort not thus excepted. In such cases the petition must av^er a certain sum due, though it is for the jury to as- sess the damages. There is really no debt certain, but the certainty of the allegation suffices for all the purposes of granting the writ, fixing the amount of the bond, and deter- mining how much property may be lawfully attached. Even though the wrong done be of such ctfaracter as to render the estimate of damage difficult, the remed}^ is accorded. A gas company attached for damages caused by the defendant's wantonly breaking its pipes (extending from its own property under the streets of the town), and by the escape of its gas. The statute was held to cover such a case.^ § 102. Where attachment for tort was brought under a statute authorizing it, the plaintiff was not allowed to waive that cause of action and substitute the allegation that the claim was for "money had and received."- Tort may be waived by the institution of an action for breach of contract, Avhen the plaintiff has his option, — the facts warranting either action.^ An action ex delicto is aided by attachment only where the remedy is authorized by statute in such case; and the author- ization is not to be extended. There can be no foreign attach- ment in such suit in Pennsylvania* by virtue of any general authorization of attachment for torts. Iowa, 502 ; Handy v. Bronp;, 4 Neb. 3 Frink v. Potter, 17 111. 406 ; Statt 60 ; Reed v. Beach, 2 Pinney (Wis.), v. Evans, 85 111. 455 ; Boornian v. 26; Elliott v. Jackson, 3 Wis. 649; Brown, 32 Q. B. 511; International Griswold v. Sharpe, 2 Cal. 17. See Bank v. Monteath, 39 N. Y. 297; Pennsylvania R. R. v. Peoples, 31 Berly v. Taylor, 5 Hill (N. Y.). 577; Ohio St. 542 ; Church v. Phillips Willet v. Willet 3 Watts, 277 ; Bank (Mass.), 32 N. E. 911. of N. America v. McCall, 4 Binney, iCode Civ. Proc. of N. C, § 347; 374; Hutton v. Wetherald, 5 Har- Newbern Gaslight Co. v. Construe- rington, 38; Sanders v. Hamilton, 3 tion Co., 113 N. C. 549. Dana (Ky.), 552; Budd v. Hiler, 27 2 Tabor v. Big Pittsburg Mining N. J. L. 43. Co., 14 Fed. 636. ^Boyer v. Bullard, 102 Pa. St 555. § 103.] ATTACHMENTS AIDED BY EQUITY. "77 YIII. Attachments Aided by Equity. § 103. Attachment is a remedy at law; it is not of an equi- table nature/ but it is sometimes aided by equit}^ When a defendant's wife had intervened to claim the property attached, the cause was transferred to equity;^ but ordinarily though questions of an equitable nature arise, the case may be tried at law.^ Attachment cannot be employed in Missouri to aid a bill in equity to charge a wife's separate estate.* In Iowa there may be attachment of a copartner's property, in an equity suit, for a balance due the plaintiff in an action for closing the partnership and accounting.^ In Michigan there may be garnishment process when equitable relief is sought, such as reaching the proceeds of property fraudulently ac- quired by the garnishee as against creditors.^ Attachment in equity is authorized by the Arkansas code.'' In Alabama a court of equity wiil not appoint a receiver to aid attachment unless special facts be shown to make it necessary.^ There may be resort to equity to reach goods fraudulently sold and conveyed by an insolvent debtor when found in the hands of a fraudulent grantee.^ In West Virginia the accommodation 1 Shiel V. Patrick, 59 Fed. 993 ; App. 520 (overruling Frank v. Seigel, Bachman v. Lewis, 27 Mo. App. 81 ; 9 id. 467); Gage v. Gates, 63 Mo. 417; Thorington v. Merrick, 101 N. Y. 5; Williams v. Railroad, 8 Mo. App. 135. Ketclium r. Ketchum, 46 Barb. 43; 5 Hansen v. Morris (Iowa), 54 N. Ebner v. Bradford, 3 Abb. Pr. (N. S.) W. 233. 248 ; Williams V. Freeman, 13 Civ. « Treusch v. Ottenburg, 54 Fed. 867 ; Proc. R. 335 ; N. Y. Code Civ. Proc, Heineman v. Schloss, 83 Mich. 157. § 635 ; Hassie v. Congregation, 35 ^ American Land Co. v. Grady, 33 Cal. 385 ; Redondo v. Brewer (Cal.), Ark. 550. 35 P. 896 ; Steadham u Parrish, 93 « pierce v. Jennings, 94 Ala. 534. Ala. 465 ; Henderson v. Alabama Ins. » Dollins v. Lindsay, 89 Ala. 217. Co., 73 id. 32 ; Phillips v. Ash, 63 See Ware v. Seasongood, 93 id. 153 ; id. 414, distinguishing McClellan v. Epping v. Aiken, 71 Ga. 600. In Ala- Lipscomb, 56 id. 255; Janney v. bama, though attachments are dis- Buell, 55 id. 408. solved on rule by defendant against 2 Lockett V. Rumbough, 40 Fed. 533. the plaintiff (Adair v. Stone, 81 Ala. 3 Holmes Organ Co. v. Petitt, 34 113), junior attacher's remedy to set Mo. App. 536 ; State v. McBride, 81 the senior's attachment aside is by Mo. 349; St Louis, etc. v. Cronin, 14 bill in equity to extinguish the lien; Mo. App. 586 ; Dodd v. Levy, 10 Mo. and the sheriff is a proper party to 131 ; Egerman v. Krieckhaus, 7 Mo. the bill. Cartwright u Bamberger, App. 445. 90 Ala. 405. * Brumback v. Weinsteiu, 37 Mo. 78 PETITION AND CAUSE OF ACTION. [§ 104 maker of a negotiable note may sue out an attachment in equity against an absconding debtor, though he has not paid the note for which he is bound at maturity.^ In that state, after judgment against the attached property of a non-resi- dent in an attachment suit in equity, the debt adjudged is not disputable by a third person,^ § 104. In Dollraan v. Moore' it is said that a non-resident debtor cannot complain of the garnishment of a municipal corporation indebted to him, when the creditor proceeds in chancer}'- and the corporation does not object on the ground of his non-residency. The court claimed jurisdiction by virtue of its general equity powers.* It said: "The creditor may proceed in equity, without getting a judgment at law, if his debtor is dead ; and there can be no insuperable reason against his so proceeding if his debtor is alive.^ The jurisdiction of a court of equity to afford relief to one not having reduced his demand to judgment against a non-resident defendant having property in the state has been affirmed in many cases." ^ The owner must have notice before his property can be condemned either at law or in equity. There may be resort to equity to aid attachment, as when sale under a fraudulent judgment is restrained to protect property attached while the case against it is pending.'^ 1 Altmeyer v. Caulfield, 37 W. Va. Johns. Ch. 619 ; O'Brien v. Coulter, 847. 2 Blackf. 431 ; Steer v. Hoagland, 39 2 Chapman v. Pittsburg, etc. R. Co., 111. 264 ; Whitney v. Kimball, 4 lud. 26 W. Va. 324; Lynch v. Andrews, 546; Thorp u. Fetz's Adm'r, 6 B. Mon. 25 id. 751; Cable ?;. Ellis, 110 U.S. 16; Everingham v. Vanderbilt, 12 389. In Virginia an attachment in Hun, 75; Off utu. King, 1 Mac Arthur, equity must be made returnable to a 312. term of court — not to rule. Va. ^ Citing Scott v. McMillen, 1 Litt. Code of 1887, §§ 2964-5 ; Grainberg 302 ; Peay v. Morrison, 10 Gratt. 149 ; V. Longerman (Va.), 19 S. E. 162; Bank u Wetmore, 124 N. Y. 241; Craig V. Williams (Va.), 18 S. E. 899. Pope u Salomons, 36 Ga. 541 ; Quarl 3 70 Miss. 267. v. Abbett, 102 Ind. 233: Pendleton v. * Citing Farrar v. Haselden, 9 Rich. Perkins, 49 Mo. 565. Contra, Zecherie Eq. 336 ; Kinlock v. Meyer, Speer Eq, v. Bovvers, 1 Smedes & M. 584. 427 ; Bank v. Paine, 13 R. I. 595. 7 People v. Van Buren, 136 N. Y. s Citing Thompson v. Brown, 4 252. CHAPTER ly. THE ATTACHMENT AFFIDAVIT. L The Affiant §§ 105-107 II. How THE Affidavit is Executed 108-110 III. Form and Essentials 111-114 IV. Stating the Debt 115-121 V. Laying the Grounds 122-126 VL Information and Belief 127-131 VIL Certainty 132-134 VIII. Alternation 135-137 IX. Amendments 138-152 X. As Evidence 153-156 XL The Affidavit Jurisdictional 157-160 I, The Affiant, § 105. Plaintiff. — The affidavit must be made by the plaint- iff, or his agent, attorney or factor. If the statute requires that it be made by the plaintiff and gives no express authori- zation for its being made by an agent, the authority is yet implied, at least under certain circumstances. It must be presumed that the framers of the law meant that a corpora- tion may make the oath by its president or other proper officer, since it is impossible for an artificial person to make an affidavit otherwise than through some representative.^ Where the statute does not confine the making of the oath to the plaintiff himself, any duly authorized agent, factor, at- torney, or an}' credible person having knowledge of the facts, may act for him; and credibility is presumed.^ The affidavit should be made by the plaintiff himself when he is present ; it must, in all cases, be made by one interested in and responsible for the attachment, or by an agent em- powered to represent him; and the legislator is doubtless com- 1 Moline, etc. Co. v. Curtis (Neb.), 2 Ruhi v, Rogers, 29 W. Va. 779 ; 57 N. W. 161; Whipple v. Hill, 36 Delaplain r. Rogers, id. 783 ; Bean v. Neb. 720. • Hatcher, 81 Va. 25. so ATTACHMENT AFFIDAVIT. [§ lOG. petent to confine the making of it to the plaintiflp himself.^ It is not usual for statutes to restrict so narrowly except in cases where the plaintiff is personally present. Under such restriction, the spirit of the statute would allow a corpora- tion to make the oath by its president or other authorized officer, since it could not possibly make it in any other way; ^ and in case the plaintiff is suing for the use of a third person, it would seem that such person might make the affidavit as the real party-plaintiff.^ A partnership firm cannot swear to an affidavit.* § 106. Agent. — Affidavits are very frequently made by agents, who swear to their authority as well as to the requisite facts. An agent need not file his power of attorney with his affidavit,'"* thougb he ought to be ready to exhibit it if required by the officer issuing the writ. Under ordinary circumstances such exhibit is not required, and the officer is not authorized to demand it. He is not bound to issue the writ upon the ap- plication of a mere stranger without proof that the applicant is authorized to represent the plaintiff. The authority should be set forth in the affidavit.^ It must not only appear therein that the affiant is the agent of the plaintiff, but that he is agent for the purpose of making the oath ; or has general pow- ers including authorization to do so. And the affiant must swear to such additional circumstances as the statute under which he appears may require; such as the absence of his principal or the inability of his principal to appear for any cause. His authority must be lawful ; ^ and if there are more iStewart V.Clark, 11 La. Ann. 319; v. Conger, 17 Miss. 505; Murray v. Baker u Hunt, 1 Martin (La,), 194 ; Cone, 8 Porter, 250. Cohen v. Manco, 28 Ga. 27; Pool v. ^ Gorman v. Horn, 30 Mo. App.419. Webster, 3 Met. (Ky ) 278 ; Mantz v. 5 Simpson v. McCarthy, 78 Cal. 175 ; Henilley, 2 Hening & Munford, 308 ; Rutledge v. Stribling, 26 111. App. 353. Myers v. Lewis, 1 McMullen, 54; ^ Miller v. Railroad, 58 Wis. 310; Jackson v. Shipman, 28 Ala. 488 ; Wiley v. Aultman, '53 id. 560 ; Wil- Dolber v. Stout, 60 N. Y. Superior lis v. Lyman, 22 Tex. 268 ; Wetmore Ct. 269 ; Nicolls v. Lawrence, 30 Mich. v. Baffin, 5 La. Ann. 496 ; Lithgow v. 395. Byrne, 17 id. 8 ; Pool v. Webster, 3 2 Faver v. Bank of Alabama, 10 Met. (Ky.) 278 ; Anderson v. Sutton, Ala. 616 ; Trenton Banking Co. v. 2 Duv. (Ky.) 480. Compare Robinson Haverstick, 6 Halstead, 171. v. Hesser, 4 N. M. 144. 3 Grand Gulf R. R. & Banking Co. ' Borland v. Kingsbury, 65 Mich. 59; Johnson v. Johnson, 31 Fed. 700. § 107.] ' AFFIANT. 81 than one plaintiff represented by him, he must show that he is entitled to appear for them.^ Though the affidavit should show that it is made by the plaintiff or for him,- yet that fact may appear elsewhere in the pleadings,^ Omission of it may be cured by amendment.* It is held that an agent need not swear to his agency, if the affidavit purports to be made by an agent.^ The president of a bank signed an affidavit, adding " Pres." It was held sufficient because the bank was the plaintiff, and the body of the affidavit showed that the signer Avas president of the corporation.^ The affidavit may be made by a bank officer other than the president, if the corporation has author- ized him to represent it. When made by an assistant cashier it was sustained.'' The agent of a foreign corporation may make the affidavit when directed to do so by its general manager in the state ; and, if the attachment prove to be wrongful, the corporation will be liable therefor.* § 107. Attorney at laiv. — If the affiant is an attorney at law, already of record for the plaintiff, having signed and filed the petition in the case, it is not absolutely essential that he should swear to his authority to represent his client when making the affidavit in the latter's behalf. If the statute allows affi- davits to be .made by attorneys, those at law are included as Avell as attorneys in fact, and the court may presume their authority when they appear.^ But as a lawyer may be em- ployed to conduct a cause, yet not to resort to the extraor- dinary remedy of attachment, it is better that he should 1 Burnside v. Davis, 65 Mich. 74. 23 S. W. 1101 ; Willis v. Lyman, 22 2 Miller V. Chicago, etc. R. Co., 58 Tex. 268 ; Evans v. Lawson, 64 id. Wis. 310 ; Mackey v. Hyatt, 42 Mo. 199. App. 443, 447. * Park Bank v. Whitmore, 40 Hun, 3 Gilkerson v. Knight, 71 Mo. 404 : 499. Johnson v. Gilkerson, 81 id. 55 ; Irwin ^ Emerson v. Skidmore (Tex. Civ. V. Evans, 92 id. 472. App.), 25 S. W. 671. * Mackey v. Hyatt, supra; Claflin ^ Gilkerson i\ Knight, 71 Mo. 403 ; V. Hoover, 20 Mo. App. 314. Austin v. Latham, 19 La. 88 ; Clark 5 Evans V. Lawson, 64 Tex. 199 ; v. Morse, 16 id. 575 : Hardie r. Colvin, Stringer v. Dean, 61 Mich. 196 ; Fre- 44 La. Ann. 851 ; James v. Richard- mont, etc. Co. v. Fulton, 103 Ind. 393. son, 39 Hun, 399 ; Wetherwax v. ^ First N. Bank v, Graham (Tex.), Paine, 2 Mich. 555. 6 82 ATTACHMENT AFFIDAVIT. [§ 108. disclose his authority to make the affidavit in the instrument itself, and declare under oath why his client does not make it himself. The attorney's authority, as a general rule, is con- fined to his duties as attorney.^ If an attorney sues out an attachment without the knowledge of his client, Avho does not subsequently ratif}^ the act in any way, he does not thus ren- der the client liable to damages in case the attachment was wrongful.^ An attorney should show why his principal does not act.^ There is no presumption in his favor when he makes the affi- davit for the attaching creditor who is not his client ; when he merely acts in the place of the attorney of record.* II. How THE Affidavit is Executed. § 108. Signature. — The affiant should sign the affidavit, but his omission to do so would not necessarily be fatal to it.* The essential matter is that he should make the showing under oath — not that he attest it by his signature. That he made 1 Alexander v. Deuaveaux, 53 Cal. Where the omission of signature is 664; and same parties, 59 id. 476. incurable by amendment, it is fatal. See generally, with respect to attor- Third Nat. Bank v. Gaston, 40 Mo. neys' authority to appear for their App. 113; Carlisle v. Gunn. (Miss.), clients after becoming of record, 8 So. 743; Loeb v. Smith, 78 Ga. 500. Steuben Co. Bank v. Alberger, 75 N. In Missouri an attachment was Y. 179 ; Ruppert v. Haug, 87 id. 141 ; quashed because the affidavit was Jacobs V. Hogan, 85 id. 243 ; Trow signed by the plaintiff's firm name. Printing Co. v. Hart, id. 500 ; Burton Norman v. Horn, 36 Mo. App. 419. V. Wynne, 55 Ga. 615. But otherwise in some other states. 2 Oberne v. O'Donnell, 35 111. App. Forteuheim v. Claflin, supra; Agri- 180. cultural Ass'n v. Madison, 9 Lea, 407. 3 Westcott V. Sharp, 50 N. J. L. 393. In Georgia it is held unnecessary co * Johnson i). Johnson, 31 Fed. 700. name the members of a plaintiff firm 5 West Tennessee Agricultural As- in an affidavit. Gazen v. Royce, 78 sociation ii. Madison, 9 Lea, 407; Ga. 513. Certainly the defendant Bates V. Robinson, 8 Iowa, 318 ; Hits- cannot complain of the omission of man i'. Garrard, 16 N. J.' L. 134; the partners' names after he has ap- Redus V. Wofford, 4 Smedes & M. peared and replevied the attached 579. Omission to sign held fatal, property. De Leon v. Heller, 77 Ga. Watt V. Carnes, 4 Heisk. 533 ; Har- 740, distinguisJiing Barbour v. Lodge, gadiue v. Van Horn, 73 Mo. 370 ; 73 Ga. 474. See Hines v. Kimball, 47 Cohen v. Manco, 38 Ga. 27 ; For- Ga. 587. tenheim v. Claflin, 47 Ark. 49. §§ 109, 110.] HOW EXECUTED. 83 it must appear b}^ the jurat/ even though the signature should have been inadvertently omitted.- The signature of the officer to the jurat is not absolutel}'' indispensable, since the fact that the oath was administered may be established by other means, and that is the essential fact.' Such omission may be remedied by amendment.^ If absence of signature to the jurat ma}^ be remedied with- out fatalitj, it will be readily seen that the omission of the official designation to the name, or of a part of such designa- tion, is not more serious.^ If the jurat is unsigned and it is not shown that the oath was administered, the affidavit is void.'' § 109. How sworn. — The affidavit may be sworn before any officer authorized to administer oaths.^ Deputy clerks not only administer oaths, but it is now common for them to issue the writs as well.^ The plaintiff's lawyer should not admin- ister the oath in his capacity as notary — the affidavit would be voidable." If the plaintiff is an officer, he cannot make oath for attachment before one of his deputies.^" § 110. Filing. — An important thing — an absolutely essen- tial thing — concerning the affidavit is that it must be filed and made part of the record in the attachment suit.^^ It is the preliminary step to the lien, and it should be so marked or indorsed by the clerk that it may be identified with the pro- 1 Cosner v. Smith, 36 W. Va. 788 ; ton v. Woflford, 4 id. 576 ; Simon v. Birdsong v. McLaren, 8 Ga. 521. Stetter, 25 Kan. 155. 2 See Fortenheim v. Claflin, 47 Ark. *> Tacoma Co. v. Draham (Wash.), 49 ; Agricultural Ass'n v. Madison, 9 36 P. 31. Compare Stout v. Folger, 34 Lea, 407; Third Nat. Banku Garton, Iowa, 71 ; Wiley v. Bennett, 9 Bax. 40 Mo. App. 113. 581. 3Kruse u Wilson, 79 111.233; En- 'Wright v. Smith, 66 Ala. 545; glish V. Wall, 12 Rob. (La.) 132 ; Johnson v. Hannah, id. 127 ; Irving Simon v. Stetter, 25 Kan. 155; Farm- v. Edrington, 41 La. Ann. 671. ers' Bank v. Gettinger, 4 W. Va. 305 ; 8 Minniece v. Jeter, 65 Ala. 222 : Cook V. Jenkins, 80 Iowa, 452 ; Dorr v. Clark, 7 Mich. 310. White V. Casey, 25 Tex. 552 ; Kahn ^ Swearingen v. Howser, 37 Kan, V. Kuhn, 44 Ark. 410 ; Stout v. Folger, 126 ; Yoakam v. Howser, id. 130. 34 Iowa, 71 ; Bergesh v. Keevil, 19 lo Owens r. Johns, 59 Mo. 89, Mo. 129; Hyde 17. Adams, 80 Ala. Ill; u Ketchen v. Landecker, 32 S. C. Hart V. Jones (Pa. Com. P.), 6 Kulp, 155. See State t'. Court of Mason Co, 326; Farrow v. Hayes, 51 Md. 498. (Wash. St.), 34 P. 151 ; State v. Court * Wiley V. Bennett, 9 Bax. 581. of Pierce Co., 5 Wash. 639. 5 Dyer v. Flint, 21 111. 80 ; Single- 84 ATTACHMENT AFFIDAVIT. [§ 111. ceedings to follow. The filing should take place without delay, that the plaintiff may have the benefit of his earlier action in case of competing creditors coming after him to ob- tain attachments. "Whether the affidavit should be filed on the day of the issu- ance of the writ, or may be filed before without affecting the validity of the proceeding thereon, depends upon statute pro- visions. If the oath required with respect to non-residence is that the defendant has been absent for three months immedi- ately preceding the making of the affidavit or the making of the application for attachment, the affidavit should be filed on the day the writ is issued;^ but the practice is pretty general to allow the time to go unquestioned, if within a day or two before the issuing of the writ, where the reason above stated is inapplicable.^ If both bear the same date, the presumption is that the affidavit was filed before the writ was issued.' AVhen the petition or declaration is referred to in the affi- davit for essential facts, it ought to be attached to and made part of the affidavit, so that the oath of the affiant may in- clude such facts.* A defective declaration may be aided by the attachment papers.^ III. FoEM AND Essentials. § 111. Contents. — The state of things at the time the affi- davit is made; the indebtedness and the grounds for attach- ment then existing, must be sworn to; and the oath should be made at the time of the application for the writ." The affida- vit is made with reference to property then belonging to the defendant, and then liable to execution as his. It is with ref- 1 In exposition of the Michigan Superior Ct. 483. In this case the statute : Drew v. Dequindre, 2 Doug, affidavit was sustained, though the 93 ; Wilson u Arnold, 5 Mich. 98 ; annexed copy of the complaint was Fessenden v. Hill, 6 id. 243 ; Dorr not expressly made a part of it. V. Clark, 7 id. 310. * Muuzenheiraer v. Manhattan, etc., 2 Wright V. Raglaud, 18 Tex. 289 ; 79 Tex. 318 ; Kolb v. Cheney, 63 Ga. Creagh v. Delane, 1 Nott & McCord, 688; King v. Thompson, 59 id. 389. 189 ; Wirker u Scofield, 59 Ga. 210. « Wilson v. Arnold, 5 Mich. 98 ; 3 Webster v. Daniel, 47 Ark. 131 ; Fessenden v. Hill, 6 id. 242 ; Dorr v. Hubbardston, etc. Co. v. Covert, 35 Clark, 7 id. 310 ; Hubbardston Lum- Mich. 254. ber Co. v. Covert, 35 id. 254. 4Crandall v. McKaye, 13 N. Y. § 112.] FOKM AND ESSENTIALS. 85 Irenes lo no particular property, but to any such property. Herein is a marked difference between attachment proceed- ings, and proceedings instituted against property already in court under seizure for the adjudication of its status as for- feited. In the latter case the action is against a specific thing; and, though its owner may possess other property, that is not affected by the suit or the judgment to follow, and cannot be executed under such judgment. The attachment affidavit (except under a statute authoriz- ing the attachment of propert;/, sold and delivered, to recover the purchase-mone}^ and other exceptional authorizations) need not contain any description whatever of the property to be attached. It ought to show that resort to the extraordinary process of attachment is necessary, where the remedy is confined to cases in which the ordinary would not be likely to prove available.^ It need not show that action has been commenced or that summons has been issued,^ unless such showing is ex- pressly required by statute. It need not aver jurisdiction.' § 112. Statute. — To establish the necessity for the extraor- dinary relief he claims, the creditor must follow the statute when making his oath. As the affidavit is necessary to juris- diction in attachment cases, it must substantially conform to the statute.* If that requires that the debt must be due, he must swear that it is due; if that requires that it must be due on contract, he must swear that it is due upon contract ; if that specifies several grounds upon any of which the remedy may be awarded, the affiant must swear to the existence of one or more of the grounds in language substantially embody- ing the meaning of the statute. The 07ius is on him. The 1 lu California it should show that Mex. 7 ; Jackson v. Shepard, 7 Cow. payment has not been secured bj' any 88 ; Sherwood v. Reade, 7 Hill (N. Y.), lien or mortgage. Wilke v. Cohn, 54 434; Rumbough v. White, 11 Heisk. Cal. 212 ; Merced Bank v. Morton, 58 260 ; Stewart v. Mitchell, 10 id. 488. id. 360. There should be an averment of de- 2 Pickhardt v. Antony, 27 Hun, 269. niand when a landlord makes affi- 3 Branch v. Frank, 81 N. C. 180. davit in a suit for advances under * Parker i'. Overman, 18 How. (XJ. S.) the Alabama statute. Cockburn v. 137; Kelso v. Blackburn, 3 Leigh, Watkins, 76 Ala. 4»6; Bell r. Allen, 299; Crim v. Harmon (W. Va.), 18 id. 450; Jaffray v. Jennings (Mich.;;, S. E. 753 ; Bennett v. Zabriski, 2 New 60 N. W. 52. 86 ATTACHMENT AFFIDAVIT. [§§ 113, 114, presumption is against the necessity of resorting to the harsh process. His right to move comes solely from the statute, and he must follow it. The sworn statement of the facts which the law requires is the basis for the issuance of the writ. The creditor who would have the debtor's property attached must lay the foundation for the extraordinary proceeding which he prays for, by an affidavit in substantial compliance with the statute upon which he relies as his warrant for the suit, and following the statute form, if any is prescribed.^ § 113. In some states, before realty can be attached, the plaintiff must make affidavit that the defendant has no per- sonal property subject to execution within the jurisdiction. When the sheriff's return shows that no personalty has been found, such affidavit is unnecessary .^ In Indiana there must be an affidavit that the defendant has property subject to execution.^ In Minnesota and some other states the plaintiff need not aver, in his affidavit, that the non-resident debtor has property in the state subject to attachment.* The exist- ence of property of the defendant within the jurisdiction need not be alleged when not expressly required by the statute.* The affidavit is always against a person, natural or artificial ; never against property or an estate.*^ One affidavit may be sufficient for several orders of attachment.'' § 114. There is nothing sacramental in the form of the affi- davit. Like all papers of that character it should be clear, 1 Lankin v. Douglass, 37 Hun, 517 ; 299, 323 ; Delaplain v. Armstrong, 21 Edick V. Green, 38 id. 202; Skiff v id. 211, 213; Capehart v. Dowery, 10 Stewart, 39 How. Pr. 385 ; Furman id. 130-5 ; Gutman v. Iron Co., 5 id. V. Walter, 13 How. 349 ; Miller v. 22 ; Tessier v. Englehart, 18 Neb. 187 ; Brinkerhoff, 4 Denio, 118 ; Staples v. Inman v. Allport, 65 111. 540. Fairchild, 8 N. Y. 41 ; Richards v. 2 Webster v. Daniel, 47 Ark. 131. Donaughey, 13 Fhila. 514; Shockley 3 Blair v. Smith, 114 Ind. 114 V. Bulloch, 18 Ga. 283 ; Barrill v. * Kenuey v. Georgen, 36 Minn. 190 ; Humphreys, 26 id. 514 ; McCollem V. Parks v. Adams, 113 N. C. 473; White, 23 Ind. 43 ; Moody v. Levy, Branch v. Frank, 81 id. 180, overrul- 58 Tex. 532; Reyburn v. Brackett, 2 ing Windley v. Brad way, 77 id. 333. Kan. 227 ; Matthews v. Dare, 20 Md. ^ Grebe v. Jones, 15 Neb. 312. 248 ; Emmitt v. Yeigh, 12 Ohio St. ^ MuUer v. Leeds, 52 N. J. 366. 335; Hilton v. Ross, 9 Neb. 406; Alt- 'Thompson v. Stetson, 15 Neb. 112. nieyer v. Caultield, 37 W. Va. 847; Chapman v. Railway Co., 26 W. Va. §§ 115, 116.] STATING THE DEBT. 87 succinct, certain, respectful, and as brief as is consistent with a full disclosure of the matter to be expressed. It should show, beyond all ambiguity, in what suit or intended suit it is made; should make perfectly clear all necessary facts and the names of the parties.^ IV. Stating the Debt. §115. Tlie statement necessary. — The attaching creditor must swear to the character of his claim to show whether its collection may be aided by attachment. Though the cause of action is fully set forth inliis complaint, there must be a state- ment of it in the affidavit, however brief, which will bring it within the statute authorizing the remedy. Such state- ment of the debt, or other authorized cause of action, must be certain as to the particulars required by the statute.^ If more than one cause is stated, there must be consistency be- tween them, since contradictory ones vitiate the attachment.^ The essential matter is that the court may be enabled to grant the attachment upon the affidavit. If the statement is suffi- cient for this, minor inconsistencies are not fatal.* The par- ticularity of a complaint or declaration is not required.^ The affidavit must be equally correct, but need not have the cir- cumstantial details of a petition or complaint. If part of the debt has accrued directly and part by assignment, the facts should be stated ; ^ but there is no need of amplifying them to the extent that might be thought necessary in a petition.'^ § 116. Stating the sum. — There can be no writ issued if the character of the debt sued upon is not shown in the sworn 1 Prins V. Hinchliff, 17 111. App. 153. 3 Meyer v. Evans, 27 Neb. 367 ; 2 Central R Co. v. Georgia, etc. Co., Meyer v. Zingre, 18 id. 458. 33 S. C. 319; Buell u Van Camp, 119 4 Crawford v. Roberts, 8 Or. 324; N Y. 160; Wanzell v. Morrisey, 115 O'Brien v. Daniel, 2 Blackf. 290; id 665; Bennett v. Edwards, 27 Fleming v. Burge, 6 Ala. 373 ; Starke Hun, 242; Johnston r. Ferris, 14 Dal}-, v. Marshall, 3 id. 44; Bartlett v. 302 ; Hart v. Barnes, 24 Neb. 782 ; Ware, 74 Me. 272 ; Irvin v. Howard, Sword V. Circuit Judge, 71 Mich. 284 ; 37 Ga. 18 ; Wilkins v. Tourtellott, 28 Geiger v. Greiner, 68 id. 153 ; Simp- Kan. 825. son V. McCarthy, 78 Cal. 175; Baum- 5 Powers v. London Bank, 3 Utah, garduer v. Dowagiac Manuf. Co., 50 417. Minn. 381 ; Central, etc. Co. v. Con- 6 Ackroyd v. Ackroyd, 20 How. Pr. striiction Co., 32 S. C. 319, and 33 id. 93. 599. See Landfair v. Lowman, 50 '^gg 94-100. Ark. 446. 88 ATTACHMENT AFFIDAVIT. [§ 116. statement, and shown to be such as the statute contemplates.^ The indebtedness must be stated positively — not doubtfully, whether the affidavit be made by the plaintiff or by an agent.^ A statute required an affidavit to the amount which the affi- ant believed the plaintiff " justly entitled to recover." It was held that "justly" could not be omitted without fatality, un- less some equivalent word was substituted.* When the statute merely requires that the nature of the claim be stated, the plaintiff need not set forth the items of his account or demand.* But, under such requirement, he should state whether the debt claimed is by note, bill or other instrument.^ When an account is annexed to the affidavit, under statute requirement, dates and accounts of different loans constituting the amount should be given, if the claim is of such character.^ When the amount and the character of the debt is properly stated, it is not generally requisite to par- ticularize all the facts and circumstances out of which the in- debtedness arose,^ though they must be stated with such par- ticularity as to show whether they are the proper subject of an attachment suit.^ It is the state of facts existing when the oath is taken — not when the writ is issued — which forms the basis of the proceeding; but if not true at the time of the issue, the attachment would not be sustained,^ 1 In re Hollingshead, 6 Wend. 553 ; 6 Cox v. Waters, 34 Md. 460 ; Sum- Sullivan V. Fugate, 1 Heisk. 20; mers v. Oberndorff, 73 id. 312. Smith V. Luce, 14 Wend. 237; Smith "Weaver v. Hay ward, 41 Cal. 117; V. Davis, 29 Hun, 301, 306 ; Yale v. Ellison v. Tallon, 2 Neb. 14. But in McDauiel (Miss.), 12 So. 556; Cox v. Tennessee the fact that steamboat -Waters, 34 Md. 460 ; Marshall v. materials were furnished within that Alley, 25 Tex. 342 ; Yarneli v. Hadda- state must be alleged in the petition, way, 4 Harrington (Del), 437 [see in order to sustain an attachment to Wright V. Hobson, id. 382) ; Rouss v. recover a debt for the materials. Wright, 14 Neb. 457. Emory Iron and Coal Co. v. Wood, 2 Bailey v. Beadles, 7 Bush, 383 ; 6 Heisk. 198. Taylor u Smith, 17 B. Mou. 536; SRichter v. Wise, 3 Hun, 398; Hamilton v. Penny. 36 N. Y. Supreme Ruthe v. Green Bay & Minn. R. R. Ct. 265 ; 29 Hun, 265. Co., 37 Wis. 344 ; Kiefer v. Webster, 3 Reed v. McCloud, 38 W. Va. 701 ; 6 Hun, 526 ; Lyon v. Blakesley, 19 W. ^a. Code, ch. 106, ^ 1. id. 299. In Oregon the ultimate, not < Tlieirman v. Vahle, 32 Ind. 400 ; the probative, facts are required. Roelofson v. Hatch, 3 Mich. 277. Crawford v. Roberts, 8 Oreg. 324. 5 Sullivan v. Fugate, 1 Heisk. 20; 9 Lewis v. Stewart, 62 Tex. 353. Pope V. Hibernia Ins. Co., 24 Ohio St. 481. § 117.] STATING THE DEBT. 89 In a suit upon a note the plaintiff need not state that he. is the owner of the note if he has stated that the defendant is in- debted to )iim on a promissory note specified.^ The essential averment is the indebtedness — the cause of action.- § 117. Debt on contract. — In stating that the debt is upon contract it will not suffice to narrate facts from which a con- tract may be inferred ; there must be oath to the existence of it, and its nature and the amount owing upon it.' However, if narrated facts be of such character that a contract may be inferred to the exclusion of any other inference, they may be equivalent to a direct averment, and the court may consider the statement substantially within the statute.* When the plaintiff swore that the debt due him was upon an "express a?id implied contract," the inconsistency was not held fatal.^ If the suit is for a debt upon contract, the affidavit should show when the debt will mature, if it is not due.^ If the suit is upon a note which is attached to the petition, so that the date of maturity appears from it, there will not be fatal error in omitting to aver w^hen the note will become due;'^ and the attachment of the note to an affidavit, so as to be a part of it, may relieve from the effect of an omission to state when the debt will mature. "Where the authorization of the remedy is confined to debts due, or where that is the cause of action "which the creditor seeks to have aided (though other causes may be also statutory in his state), his oath to the debt, with- out averring it to be due, is insufficient.^ 1 Bank of California v. Boyd, 86 331 ; Tanner, etc. Co. v. Hall, 22 Fla, Cal. 386 ; Dunn v. Markey, 80 id. 107 ; 391 ; Avery v. Zander, 77 Tex. 207 ; Fremont, etc. Co. v. Fulton, 103 Ind. Rouss v. Wright, 14 Neb. 457; People 893. V. Blanchard, 61 Mich. 478 ; Cosner v. -'Weaver v. Hay ward, 41 Cal. 117; Smith, 36 W. Va. 788; Wells v. Ho- Wheeler v. Farmer, 38 id. 215. gau, 2 Fa. Dist. R. 98. 3 Koutina v. Culpepper, 75 Ga. 602 ; * Ruthe v. Green Bay & Minn. R Bartlett v. Ware, 74 Me. 272 ; Belfast R Co., 37 Wis. 344 ; Robinson v. Bur- Savings Bank v. K. L. & K Co., 73 ton, 5 Kan. 293 ; Klenk v. Schwalm, id. 404; Quarles v. Robinson, 1 19 Wis. 111. Chandler, 29; Hale v. Chandler, 3 5 Buehler v. De Lemos, 84 Mich. Mich. 531 ; Wilson v. Arnold, 5 id. 554. Compare People v. Blanchard, 98, 104 ; Russell r. Gregory, 62 Ala. 61 id. 478, 487. 454 ; Lyon v. Blakesly, 19 Hun, 299 ; 6 Hochstadder v. Sam, 73 Tex. 35. Jacoby v. Gogoll. 5 Serg. & Rawle, "^ Munsheimer v. Manhattan, etc. 450: Wilmerding r'. Cunningham, 65 Co.. 79 Tex. 318; Hiuzie v. Moody How. Pr. 344 ; Wallach v. Sippilli, (Tex. Ajip.). 20 S. W. 769. id. 501; Belden r. Wilcox, 47 Hun, s Lorillard v. Barrett, 77 Ga. 45; 90 ATTACHMENT AFFIDAVIT. [§§ 118, 119. § 118. Amount of the deht. — The amount of the debt should be stated with precision ^ and certainty,^ though, when indefi- nitely averred in the affidavit, its explicit declaration in the petition may save the attachment,' As the amount must be stated under oath, an unsworn petition would not supplement the affidavit in this matter.* When several notes were sued upon together, and oath made that a part of them was due, without any statement of the sum as a whole, the affidavit was held sufficient.^ The courts, while requiring the definite statement of the amount, do not insist upon the requisition to such extent as to overlook rea- sonable circumstances such as those above mentioned, when a different view would defeat the purpose of the legislator in providing the remedy.^ But oath to the debt should not be on information and belief.' § 119. Amoiint sicorn hij attorney. — If the affidavit is by the attorney of the plaintiff, and he swears positively to the amount due, it is held that he need not state the source of his knowledge of the fact swOrn,^ He may depose that he is familiar with the business of the plaintiff about which he makes oath ; but if he shows that his knowledge is derived from the plaintiff's letters, or the like, he may thus vitiate the Joseph V. Stein, 52 id. 333 ; Tanner, age, 14 La. 169 ; Souberain v. Reuaux, etc. Co. V. Hall, 22 Fla. 391 ; Jordan v. 6 La. Ann. 201. See Kahn v. Kuhn, Frank (N. D.), 46 N. W. 171 ; Mathews 44 Ark. 404. V. Densraore, 43 Mich. 461, 463 ; Wells * Kelly v. Donnelly, 29 Iowa, 70 ; V. Parker, 26 id. 103 ; Cross v. Mc- Blakely v. Bird, 12 id. 601. Maken, 17 id. 511 ; Galloway v. ^ Johnson v. Buckel, 65 Hun, 601. Holmes, 1 Doug. (Mich.) 350 ; Fried- 6 Donnelly v. Elser, 69 Tex. 282 ; lander v. Myers, 2 La. Ann. 920 ; Phelps v. Young. 1 111. 256 ; McClan- Munroe v. Cocke, 2 Cranch C. C. ahan v. Brack, 46 Miss. 246 ; Turner 465 : Lathrop v. Snyder, 16 Wis. 298 ; v. McDaniel, 1 McCord, 552 ; Holsten Levy V. Levy, 11 La. 581. Manuf. Co. v. Lea, 18 Ga. 647 ; Thier- 1 Rupert V. Haug, 87 N. Y. 141; man v. Vahle, 32 Ind. 400 ; Hafley v. Pomeroy v. Ricketts, 27 Hun, 242; Patterson, 47 Ala. 271; Gutman v. Hawes v. Clement, 64 Wis. 152. Va. Iron Works Co., 5 W. Va. 22. 2 Black V. Scanlon, 48 Ga. 12 ; ' Ross v. Steen, 20 Fla. 443 ; Gazen Hodgeman v. Barker, 128 N. Y. 601 ; v. Royce, 78 Ga. 513. Kahle v. MuUer, 57 Hun, 144 ; Man- 8 Anderson v. Wehe, 58 Wis. 615 ; ton V. Poole, 67 Barb. 330. Wiley v. Aultman, 53 id. 560 ; Rice 3 Willis V. Mooring, 63 Tex. 340; v. Morner, 64 id. 599; Simpson v. Joiner v. Perkins, 59 id, 300 ; Morgan McCarty, 78 Cal. 175. V. Johnson, 15 id, 568 ; Boone v. Sav- §§ 120, 121.] STATING THE DEBT. 91 affidavit.^ It is not laid down that attorneys' depositions for their clients are everywhere exceptional to the general rule that the source of the agent's knowledge must appear in the affidavit.- § 120. Overstatement. — Overstatement of the amount claimed is not such want of certainty as to prove fatal.' An overestimate of interest is not vitiatory when the principal and time are correctly given so that the miscalculation may be readily rectified.'' If the statement is that the debt exceeds a sum named, it will be confined to the amount mentioned and the averment of excess is harmless.-^ §121. Counter-claims. — Several statutes require oath that a claim for breach of contract must be sworn to be due above all discounts and set-ofi's.'^ The meaning is " above all " known to the plaintiff — not the deponent when he is a mere agent,^ unless the plaintiff is a corporation and the knowledge of the deposing officer is that of the body.^ When the plaintiff made oath to the amount due above all legal set-offs "as near as can be specified," he thus comj^lied substantially with the statute requirement of an affidavit that the amount is " as near as may be over and above all legal set-offs." ® 1 Trautraanu v. Schvvalm, 80 Wis. 6 Thorington v. Merrick, 101 N. Y. 275 ; Streissguth v. Reigelman (Wis.), 5 ; Donnell v. Williams, 21 Hun, 21(i ; 43 N. W. 1116. 28 N. Y. Supreme Ct. 216; Taylor v. -' Buhl V. Ball, 41 Hun, 61 ; Ameri- Reed, 54 How. Pr. 27 ; Alford v. Cobb, can Bank v. Voisin, 44 id. 85 ; Ben- 28 Hun, 22, in exposition of Code Civ nett V. Edwards, 27 id. 352 ; Cribbeu Proc, §§ 635, 636 ; Burnett v. Mc- V. Schillenger, 30 id. 248 ; Myers v. Cluey, 92 Mo. 230. Whiteheart, 24 S. C. 196; Newman - Moore r. Neill, 86 Ga. 186; Mein V. Hexter, 4 MacArthur, 88. Com- hard v. Neill, 85 id. 265 ; N. Y. Civ. pare Anderson v. Wehe, 58 Wis. 615. Code Proc, § 636. See Crowns v. SGrover v. Buck. 34 Mich. 519; Vail, 51 Hun, 204; Lee r. Ass'n, 50 Barker v. Thorn, 20 id. 265; De Staf- id. 604; Smith v. Arnold, 33 id. 848; ford u Gar tley, 15 Colo. 32. Cribben v. Schillenger, 30 id. 248; ■* Rainwater, etc. Co. v. Oneal, 82 Patterson v. Delaney, 20 Civ. Proc. Tex. 337. R. 427 : Nelson v. Field, 89 Tenn. 5 Nelson v. Munch, 23 Minn. 229 ; 466 ; Ketchin v. Landecker, 32 S. C. Flower v. Griffith, 12 La. 345 ; Elam 155. V. Barr, 11 La. Ann. 622 ; Henrie v. ^ See Essex Co. Bank v. Johnson, 61 Sweasey, 5 Blackford, 273 ; Stewart v. Hun, 625. lleidenheimer, 55 Tex. 644. 9 Barker v. Thorn, 20 Mich. 264. 92 ATTACHMENT AFFIDAVIT. [§ 122. The possession of the defendant's property need not be dis- closed. Though the plaintiff hold enough in value to equal his claim it is no set-off, and the defendant cannot defeat the at- tachment suit by proving such possession by the plaintiff, even though held under a lien.^ Y. Laying the Grounds. § 122. Following the statute. — The grounds for the writ can be no other than those authorized by the statute upon which the plaintiff proceeds.^ He must swear to one or more in his affidavit. One good ground is sufficient.* He must bring himself strictly within the authorization for the extraor- dinary remedy which he invokes. However artistically he may have set forth the indebtedness, it will avail him noth- ing if he should fail to show that the defendant is a non-resi- dent, or has absconded, or is about to abscond, or is secreting his property or himself to avoid legal proceedings, or some other ground specified in the statute. And the statement of such fact must be plain and unequivocal, such as would subject him to all the consequences of any wrong done thereby in case the statements should prove false. The laying of the grounds must be substantially according to statute, though not necessarily in its verbiage.* While See Pickhardt v. Antony, 27 Hun, Leonardo. Stout, 36 N. J. L. 370; 269: Mendes v. Freiters, 16 Nev. 388. Curtis v. Settle, 7 Mo. 452: Campbell 1 Homer v. Falconer, 60 N. H. 203 ; v. Hall. McCahon, 53 ; Talcott v. Ros- Wehle V. Conner, 83 N. Y. 231-8. enberg, 8 Abb. Pr. (N. S.) 289; Cham- Compare Germania Sav. Bank v. bers v. Sloan, 19 Ga. 84 ; Kennon v. Penser, 40 La. Ann. 796. Evans, 36 id. 89 ; Van Kirk v. Wilds, 2 Matter of Fitch, 2 Wend. 298; 11 Barb. 520; Cross u McMaken, 17 Tallman v. Bigelow, 10 id. 420; Ex Mich. 511; Skiff v. Stuart, 39 How. jfjarfe Haynes, 18 id. 611; Smith v. (N. Y.) Pr. 385; Graham v. Ruff, 8 Luce, 14 id. 237; Matter of Brown, Ala. 171; Ware v. Todd, 1 id. 199; 21 id. 316 ; Ex parte Robinson, id. Bank of Ala. x: Berry, 2 Humph. 443 ; 672; Matter of Faulkner, 4 Hill (N. Boydu Burkiugham, 10 id. 434; Run- Y.), 598 ; Matter of Bliss, 7 id. 187 ; yan v. Morgan, 7 id. 210 ; Sawyer v. Pierse v. Smith, 1 Minn. 82; Morri- Arnold, 1 La. Ann. 315; Parmelee v. son V. Lovejoy, 6 id. 183. Johnston, 15 La. 429 ; Lee v. Peters, 1 3 Lawver v. Langhans, 85 111. 138; Smedes & M. 503; Commercial Bank Keith u Stetter, 25 Kan. 155; Mo- v. Ullmau, 10 id. 411; Dandridge v. CoUem V. White, 23 Ind. 43. Stevens. 12 id. 723; Bussey v. Roths- 4 Parker v. Scott, 64 N. C. 118; childs, 26 La. Ann. 258; Wallis v. § 123.] LAYING THE GROUNDS. 93 courts have no power to issue the writ except as conferred by statute, yet they must use their judgment in determin- ing whether the statute has been complied with by the plaint- iff in making his preliminary showing, and whether a slight deviation from the requirements of the statute is, in any case, sufficient to vitiate the affidavit and render it insecure as the foundation of an attachment suit. Law has been de- fined, "A solemn expression of legislative will;" and if tho will of the legislature can be seen, through a statute, and the plaintiff, in making an affidavit, has virtually and substan- tially complied with that will, the court should sustain the affidavit. On the other hand, the rights of the defendant are to be protected. He is not to be held as defendant under an at- tachment suit in the absence of a substantial compliance with the law on the part of the plaintiff. There is to be no guess- ing at the meaning. There is to be no supplementing of the oath, to make it cover the requirements of the statute, by an over-liberal rendering on the part of the court. Where the affidavit is insufficient, the writ should be denied.^ § 123. Charging fraud. — There may be such a statement of fraud and intent to defraud raadg against the debtor, Wallace 6 How. (Miss.) 254 ; Earl v. Blackford, 25 ; Powers v. Hurst, 3 Camp, 16 Wend. 562 ; Parker v. Wal- id. 229 ; Derries v. Summit, 86 rod, id. 514; Wiltse v. Stearns, 13 86 N. C. 126; Mantz v. Hendley, 2 Iowa, 282 ; Beach v. Botsford, 1 Hening & Munford, 308 ; Manly v. Doug. (Mich.) 199 ; Leroy v. East Headley, 10 Kan. 88 ; Wallis v. Mur- Saginaw Ry., 18 Mich. 233; Watkins phy, 2 Stewart. 15 ; Hargadine r. Van V. Wallace, 19 id. 57, 74 ; Mandel v. Horn, 72 Mo. 370 ; Lane v. Fellows, Peet, 18Ark.236;SellickuTruesdall, 1 id. 251; Alexander u Haden, 2 Dudley (GTa.), 196 ; Levy v. Millman, id. 187 ; Millaudon v. Foucher. 8 7 Ga. 167; Phelps u. Young, 1 111. La. 582; New Orleans u. Garland, 11 256; Hilton u Ross, 9 Neb. 406. La. Ann. 438; Reding v. Ridge, 14 1 Campbell v. Hall, McCahon, 53 ; id. 36 ; McCulloch v. Foster, 4 Yerger, Drew V. Dequindre. 2 Doug. 93 ; 162 ; Wharton v. Conger, 9 Smedes Weimeisterr. Manville, 44Mich. 408; & M. 510; Croxall v. Hutchins, 7 Poage V. Poage, 3 Dana, 579 ; Skiff v. Halsted, 84 ; Messner v. Hutchins, Stuart, 39 How. (N.Y.)Pr. 385; Nap- 17 Tex. 597; Levy r. Millman, 7 per r. Noland, 9 Porter, 218; Claus- Ga. 167; Brown v. McCluskey. 26 sen V. Fultz, 13 S. C. 476 ; Bennett v. id. 577 ; Allen v. Fleming, 14 Rich. Avant, 2 Sneed, 152 ; Wright v. Smith, 196 ; Winkler v. Barthel, 6 111. App. 66 Ala 545; Davis v. Edwards, 111, Hardin, 342; Hamilton v. Knight, 1 94 ATTACHMENT AFFIDAVIT. [§ 123. on account of his disposition of his property to defeat the claims of creditors, as would be sufficient for the arrest of the debtor, and yet the allegations may be inadequate to authorize a writ of attachment because of the absence of some necessary averment.^ The affidavit should be specific ; - but it has been held that, without setting out specific acts of fraud, statements in accordance with the statute requirements will warrant the issuance of the writ.^ An affidavit that the debtor has fraudu- lently disposed of part of his property, and has other property which he fraudulently withholds, was held good ; * but to swear that he is fraudulently disposing of it is not sufficient to support a petition on the ground that he has fraudulently mortgaged all his property.^ An affidavit that the defendant sold property with intent to defraud is not supported by evi- dence that he sold cheaply, did business recklessly, and the like.« When fraud is the ground and it is not charged in the affi" davit specifically under a statute requiring it to be thus set forth, the attachment should be denied ; or if it has been granted, it should be dissolved upon application.'^ Charging that the debtor's acts were for the purpose of delaying and hindering his creditors has been held sufficient,^ though " de- frauding" is usually added. Charging fraudulent assign- ment for the purpose above mentioned is good.^ So the allegations by the deponent that the defendant has disposed of most of his property and is about to dispose of the rest, with intent to defraud his creditors, are sufficient.^" As a gen- eral rule the charge of fraud should be positive in an affidavit for attachment on that ground." If prima facie good, the allegations will hold if not contradicted. i Achelis v. Kalman, 60 How. (N. & Simpson v. Holt, 89 Ga. 834. Y.) Pr. 491 ; Claussen v. Fultz, 13 S. « Wands, etc. v. Rosenberg, 31 S. C. C. 476; Cobb v. Force, 6 Ala. 468. 301 ; Kibbe v. Herman, 51 Hun, 438. 2 Simpson v. Haigbt, 89 Ga. 834. ^ Biddle v. Black, 99 Pa. St. 380. 3 Auerbach v. Hitchcock, 28 Minn. » Keith v. McDonald, 31 111. App. 17. 73; Sharpless v. Zeigler, 92 Pa. St 9 Citizens' Bank v. Williams, 59 467 ; Stevens v. Middleton, 26 Hun, Hun, 617. 470 ; Harris v. Budd, 1 Pa. Dist. R. i" Roddey v. Erwin, 31 S. C. 36. 83 ; Spencer V. Bloom (Pa.), 24 A. 185. "Enekiug v. Clay, 79 Ca. 598; 4 Nelson v. Munch, 23 Minn. 239 ; gg 57-72 ; Rickel v. Strelinger (Mich.), Cleveland v. Boden, 63 Tex. 103. 60 N. W. 307. §§ 124, 125,] LAYING THE GROUNDS. 95 It would not be sufficient to charge that the debtor has sold his property below the market value, with no other facts to make out fraud.^ It is useless to state acts done to defraud when the acts themselves are not fraudulent.^ Facts not cer- tainly within the affiant's knowledge cannot be made the source whence fraudulent disposition of property may be in- ferred.* The property of a debtor is not attachable for the fraud of his absconding partner.* But under the charge that the de- fendant firm is about to dispose fraudulently, etc., the plaintiff may support the allegation by proving that a member of the firm is doing so with the partnership property.'^ § 121:. To swear merely that the debtor has left the state without adding that he left with the intention of removing his goods from the state (or that he is concealing himself, without adding "to avoid process"), when the latter is re- quired to be stated, is insufficient." Setting forth such facts in an intelligible way without using statute phraseology will answer the demands of the law ; ^ but general averments, not connecting the plaintiff with the fraudulent acts charged so as to show that he is interested in his application for the at- tachment, would be entirely too vague. For instance, to aver merely that the debtor is about to transfer his property for the purpose of defrauding his creditors, yet to omit stating that the plaintiff would lose his debt unless allowed the remedy sought, or equivalent words, was held erroneous, and the affi- davit declared defective.* § 125. Absconding. — To charge absconding as a ground, it is not enough to aver that the defendant is in another state and is about to dispose of his property.^ ISTon-residence, though a material fact when it is the ground of attachment, may be 1 Dintruff v. Tuthill, 63 Hun, 591. 5 Wilson v. Cole, 26 Mo. App. 5. 2 Delaplain v. Armstrong, 31 W. " Crayne v. Wells, 2 111. App. 574 ; Ya. 311 ; Laudeman v. Wilson, 39 Winkler v. Barthel, 6 id. 111. id. 703 : Hale v. Donahue, 35 id. 414. " Van Loon v. Lyons, 61 N. Y. 22 ; 5 Thompson v. Dickinson, 58 Hun, Free v. Hukill, 44 Ala. 197. 603 ; Dickson v. Mayer, 58 id. 609 ; « Sheffield v. Gay, 33 Tex. 225. Ivy V. Caston, 21 S. C. 583. ■' State v. Morns, 50 Iowa, 303 ; * Bogart V. Dart, 35 Hun, 395, Com- §^ 55, 56. See Guckenheimer v. Libby pare Mills v. Brown, 3 Met. (Ky.) (S. C,), 19 S. E. 999. 404 ; Duncan v. Headley, 4 Bush, 45. 96 ATTACHMENT AFFIDAVIT. [§ 126. a matter of inference from the facts stated, if it is the only- inference that can logically be drawn from the facts. ^ It could not be inferred that the defendant is a non-resident or an abscondino: debtor from the vao^ue averment that he has left the state; certainly it could not be inferred to the exclusion of every other hypothesis.^ Nor could it be concluded, under such averment, that his leaving was with intent to defraud his creditors.^ § 126. It is sufHcient to swear that the defendant is " not a resident." * It is held that an affidavit against a non-resident partner must also show his partners non-resident when the claim is against the named defendant and others unnamed described as his partners.^ The fact of non-residence should be positively sworn, though the place of residence may be stated on information;^ but to swear that the defendant's residence was at a stated place two years before is bad.^ The affidavit of the plaintiff on information and belief of the defendant's non-residence, supported by the affidavit of his attorney and the return, " not found," of the sheriff, was held sufficient.^ In a tort suit against a doctor for malpractice, an affidavit must state particulars of the wrong done ; the general alle- gation of malpractice has been held insufficient.® 1 Mayor, etc. of N. Y. v. Genet, 4 See Webster v. Daniel, 47 Ark. 131. Hun, 487 ; Graham v. Ruflf, 8 Ala. Under the Code of Civil Procedure, 171 ; McKiernan v. Massingill, 14 section 1780, an attachment was va- Miss. 375; James v. Dovvell, 15 id. cated because the affidavit did not 333. show the plaintiff a resident, or that 2 Mutherrin v. Hill, 5 Heisk. 58. the cause of action arose in the state. 3 Love V. Young, 69 N. C. 65. Oliver i\ Man. Co., 57 Hun, 588. The * Nagel V. Loomis (Neb.), 50 N. W. omission of these facts in the affida- 441. vit cannot be supplied by amend- Corbit V. Corbit, 50 N. J. L. 363 ; ment. Barber v. Robeson, 3 Green (N. J.), ^ In Michigan, under statute : Mc- 17 ; Curtis v. HoUingshead, 2 id. 402. Crea v. Circuit Judge (Mich.), 58 6 Steel u Raphael, 59 Hun, 626. N. W. 1118; Howell v. Judge, 88 7 Baldwin v. Ferguson, 35 III. App. Mich. 361 ; Manton v. Poole, 67 Barb. 398. 331. Compare Pomeroy v. Ricketts,' 8 Adams v. Hilliard, 59 Hun, 626. 27 Hun, 242. § 127.J INFORMATION AND BELIEF. 97 YI. Information and Belief. § 127. Keasonable latitude must be given to the phraseology of the sworn statement. "Where oath " to the best of the knowledge and belief " of the affiant is required, it will suffice to swear to information received of defendant and believed by deponent.^ But it would not be enough to swear "to the best of his knowledge " only, or " to the best of his belief " only.2 If a partnership firm are plaintiffs, it is the knowledge and belief of the members of the firm which should be sworn to ; but the affidavit would hold, as a sufficient compliance with the law, if the knowledge and belief of the firm be the subject of the oath.^ "Where the plaintiff is required to make a showing of cer- tain circumstances to satisfy the court that he is entitled to the issuance of the writ, his oath that he believes those facts is no proof of them. Considering the fallibility of human judgment, and the partiality which a litigant usually feels toward himself, the court is obliged to receive, with much allowance, the honest statements of an affiant as to " informa- tion received," and what he " verily believes," if the law makes the issuance of the writ depend upon preliminary proof of circumstances. Indeed, the plaintiff's belief is not a circum- stance to be taken at all into the account, under such require- ment.^ If an affiant swears to a fact on information and belief based on a communication by telephone, he must also swear that he knew the speaker's voice.^ 1 Blake v. Bernhard, 6 Thompson & Sydnor v. Tolman, 6 Tex. 189 ; Pierse C. (N. Y.)74; Howell r. Kingsbury, v. Smith, 1 Minn. 82; Morrison u 15 Wis. 272. Lovejoy, 6 id. 183 ; Murphy v. Purdy, 2 Garner u White. 23 Ohio St. 192; 13 id. 422; Tallman v. Bigelow, 10 Berghv. Jayne, 7 Martin (N. S.), 98; Wend. 420; Ex parte Robinson, 21 McHaney v. Cawthorn, 4 Heisk. 508. id. 672 ; Matter of Faulkner, 4 Hill, Swearing to belief has been held suf- 598 ; Kingsland v. Cowman, 5 id. 608 ; ticieut in New York. Ex parte Matter of Bliss, 7 id. 187; Dewey u Haynes. 18 Wend. 611; Matter of Green, 4 Den. (N. Y.) 93; Camp v. Fitch, 2 id. 298. See Smith v. Luce, Tibbets, 2 E. D. Smith (N. Y), 520 ; 14 id. 237. Hill r. Bond, 22 How. (N. Y) Pr. 3 Stewart v. Katz, 30 Md. 334. 272 ; Brewer v. Tucker, 13 Abb. (N. Y.) * Hellman v. Fowler, 24 Ark. 235 ; Pr. 76. Williams v. Martin, 1 Met. (Ky.) 42 ; & Murphy v. Jack, 83 Hun, 356. Duulevy v. Schartz, 17 Ohio St. 640 ; 7 98 ATTACHMENT AFFIDAVIT. [§§ 128, 129- § 128. One swearing upon information received must state the absence of his informant, where the statute requires it ; and a neglect of such statute provision will render the affidavit insuf- ficient.' There is a difference between believing and havins: reason to believe ; and where the state requires oath to the latter, it is not a compliance to confine the oath to the former.^ Distinction is made between material and less important alle- gations, with regard to positive knowledge of them; and the former cannot be received merely upon oath of information and belief, where positiveness is required;* nor upon apprehension and belief.'* Distinction is made between swearing that affiant thinks and swearing that he helie'ves; ^ but such differentiation seems too fine when only opinion is the subject of the oath. Material allegations, even charging fraud as a ground, may be upon information and belief, if other facts, tending to sus- tain the material averments, be positively averred in the affi- davit." Positively sworn averments are often nothing more than reasonable belief attested under oath.'' § 129. Facts. — Swearing to "good reason to believe," with- out stating facts, is insufficient.^ And so is a positive oath to belief, if the statute requires facts.^ The source of infor- mation and belief should be set forth.'*' It should not be re- mote.'' The oath should not be " partly on information and 1 Steuben Co. Bank v. Alberger, 78 and belief, and held sufficient Hess N. Y. 252. In Alabama the attorney v. Bower, 76 N. C. 428. of a non-resident client swore that he ^ Rittenhouse v. Harman, 7 W. Va. was informed and believed and there- 3S0. fore stated tliat the defendant, who ^ As, that the facts sworn on infor- was a non-resident, was justly in- mation had been stated to the defend- debted, etc., and the affidavit was ant and that he had admitted their held good. Mitchell v. Pitts, 61 Ala. truth. Blake v. Bernhard, 6 Thomp- 219. Under similar circumstances, son & C. (N. Y.) 74 ; 3 Hun, 397. held bad in Georgia. Neal v. Gordon, " Simpkius v. Malatt, 9 Ind. 543. '60 Ga. 113. 8 Gates v. Bloom (Pa.), 24 A. 184. 2 Hunt V. Strew, 39 Mich. 368. sClowser v. Hall, 80 Va. 864; Ross 3 Claflin V. Baere, 57 How. (N. Y.) v. Steen, 20 Fla. 443, Pr. 78; Greene n Tripp, 11 R. I. 424; lOMann v. Carter, 71 Hun, 72; Archer v. Claflin, 31 111. 306 ; Dyer v\ Hitner v. Boutilier, 67 id. 203 ; Crowns Flint, 21 id 80. ' v. Vail, 51 id. 204 ; Kokomo, etc. Co. * Brown v. Crenshaw, 5 Bax. 584. v. Inman, 53 id. 39 ; Webster v. Daniel, In North Carolina, indebtedness and 47 Ark. 131 ; Byles v. Rowe, 64 Mich, departure from the state being sworn 522. positively, " intent to avoid sum- ii Hudkins v. Haskins, 22 W. Va. mons" was sworn on information 645. § 129.] INFORMATION AND BELIEF. 99 belief " — so held.^ It should not be made on mere suspicion that the defendant is about to assign fraudulently.^ " Yerily believes " is bad when the statutory form pre- scribed is " to the best of his [affiant's] knowledge and belief." * AVhen reasons for belief are required to be assigned, it is not sufficient to say merely that the affiant believes that the de- fendant is about fraudulently to remove his property.* But a positive oath that the defendant is about fraudulently to remove his property, or positive oath to any other ground, is good without stating belief or giving reasons.^ Substantial compliance with the statute is sufficient.*' There have been several comparatively recent decisions on swearing to infor- mation and belief under different states of facts.'' § 129. Inference^ to the exclusion of all other hypotheses, is not required, but rather the most probable inference from the facts, in matters where the statute need not be followed liter- ally.8 Hearsay is not necessarily excluded in making the showing, upon oath, of circumstances required to justify the issuing of the writ. What has been said by members of a runaway debtor's family may be mentioned as contributory to the con- clusion that he has absconded ; or that he has left the state permanently; or that he has concealed goods. The court must be satisfied that there is good ground for the attachment under the statute, though the proof fall short of what would be necessary to sustain a judgment for the plaintiff upon the trial. Or, if the clerk is to have discretion and be satisfied npon evidence before issuing the writ, the rule is the same : for the clerk is the right hand of the court, and the writ is issued through him rather than by him. 1 Brown v. Mossman, 71 Ga. 859 ; Delaney, 59 Hun, 626. Held bad, Ga. Code, g 3297. under facts stated : Bunipr. Deliany, 2 Atlas Furniture Co. v. Freeman, 59 Hun, 619; Ketchin v. Landecker, 70 Hun, 13. 82 S. C. 155; Sannoner v. Jacobsou, 3 Stadler v. Parmlee, 10 la. 23. 47 Ark. 31 ; Nelson v. Fuld, 89 Tenn. * Merrill v. Low, 1 Pinney, 221. 466, overruling Lester v. Cummings, 5 Jones V. Leake,. 11 S. & M. 591. 8 Humph. 384. « Frere v. Ferret, 25 La. Ann. 500. '^ Talcott v. Rozenberg, 3 Daly, 203 "^ Held sufficient under the facts (8 Abb. Pr. N. S. 287) ; Cooney v. stated in the opinions : Buell v. Van Whittield, 41 How. Pr. 6 ; Ware v. Camp, 119 N. Y. 160; King v. South- Todd, 1 Ala. 199. See Tufts v. Vol- wick, 06 How. Pr. 282 ; Patterson v. kening (Mo.), 27 S. W. 522. 100 ATTACHMENT AFFIDAVIT. [§ 130. "Whatever the circumstances adduced, the affiant must swear to his belief of their truth. This requirement is a safeguard to prevent the officer from being trifled with, and to check the plaintiff from trying doubtful experiments. There must be nothing contradictory between the petition and affidavit in essential averments.' Allegations that the defendant was insolvent when he gave the notes sued on, when the affidavit showed that the ground of attachment was his transfer of property to the creditors whose claims created the insolvency, were held fatal to the attachment.^ § 130. An agent or attorney of the plaintiff, in his absence, may make the affidavit for him, to the best of his knowledge and belief, but ought to state the ground of his belief and the source of his knowledge, though this is not everywhere re- quired.^ One agent or attorney may swear to some facts, and an- other to others, so as to lay the ground for attachment.^ The oath of attorneys is usually to knowledge and belief.^ They may not have personal knowledge, such as would enable them to substantiate all the required facts in the capacity of witnesses, but they may have received credible information, such as has really induced belief; and that is sufficient show- ing for the issuance of the writ, to be followed by the plead- ings and the testing of the truth of such information received. ISTo one can be hurt, since the plaintiff's bond stands behind the affidavit to secure the defendant against any wrong. Where ag-ents are allowed to make the oath, if the statute requires that the plaintiff's knowledge and belief be sworn to, the agent must swear to his principal's knowledge and conviction and not to his own,^ But his personal information may be better than that of his principal, and he may swear to it as such when there is no statutory impediment.^ He is 1 Evans v. Tucker, 59 Tex. 349. "one of the attorneys of plaintiff." 2 Johnson v. Buckel, 65 Hun, GOl. Tessier v. Crowley, 16 Neb. 369. 3 Mitchell V. Pitts, 61 Ala. 219; 5 Mitchell v. Pitts, 61 Ala. 219; Bridges v. Williams, 1 Martin, N. S. White v. Stanley, 29 Ohio St. 423 ; (La.) 98 ; Dinkelspiel v. Woolen Mills Howell v. Kingsbury, 15 Wis. 272. (La.), 15 So. 282 ; La. Code of Prac- « Stewart v. Katz, 80 Md. 334 ; tice, arts. 216-244. Dean v. Oppenheimer, 25 id. 368; ^ Lewis V. Stewart, 62 Tex. 352. Murray u. Hankin, 65 How. Pr. 511. The affiant may describe himself as ^Eausch v. Moore, 48 Iowa, 611. f§ 131, 132.] CERTAINTY. 101 acting- for bis principal in making the preliminary showing to take out the process. Obviously, when be comes to sustain the attachment con- tradictorily with the defendant, he is a competent witness to prove facts — not mere belief. § 131. Agency. — It will be understood that, as an affidavit is not pleading, no artistic form of oath to his authority is required by the affiant when he is an agent. His statement of the fact anywhere in the body of the affidavit will suffice; but " J. K. on behalf of J. S., being duly sworn," was held not sufficient.^ It has even been held that agency need not be shown in the affidavit ; - that, at most, omission to show it therein is only a formal defect which cannot be noticed above the trial court.* But the better view is that the affidavit should show that the deponent is the agent of the plaintiff, when it is made by him and not by the principal.'* If the affiant represents himself as agent, either by his signature or by statement in the body of the affidavit, it has been held that he will be presumed to be the agent of the plaintiff though he does not mention him.s He is not required to file any power of attorney with his affi- davit. If his authority is questioned it must be shown. It is held thai authorization to collect debt gives the right to make affidavit for attachment.^ YII. Certainty. § 132. The necessary thing is certainty in the compliance with requirements. Nothing ambiguous, in essential points, will be sufficient. The plaintiff must positively state his grounds, whether absolute knowledge is required, or an abso- lute statement of the fact of his know^ledge and belief, so as to preclude a second suit for the same demand.' One of the 1 Miller v. C, M. & St. Paul Ry. Co., v. Kellogg, 63 Mich. 105 ; Stringer v. 58 Wis. 310; Wetherwax r. Paine,' 2 Dean, 61 id. 196; Miller r. Railway Mich. 555. Co.. 58 Wis. 313. 2Simpsonn McCarthy, 78 Cal. 175. 5 Smith v. Victoria (Minn.). 56 N. ^Rutledge v. Stribling, 26 111. App- W. 47. This was held with reference 353. to justices' courts. * Mackey v. Hyatt. 43 jMo. App. 443 ; ** Deering v. Warren, 1 S. D. 35. Clark V. Miller, 88 Ky. 108 ; Adams " Bond v. Patterson, 1 Blackf. 34 102 ATTACHMENT AFFIDAVIT. [§ 133. reasons why the grounds cannot be set forth equivocally in the affidavit is found in the harsh character of the remedy in- voked. Because attachment is an extraordinary proceeding, permissible only in consideration of the danger the plaintiff fears in his attempt to collect his dues, the law granting him the writ to seize before judgment should be strictl}'^ construed, and all liability of oppressing the alleged debtor should be carefully avoided. If the defendant is a non-resident, or an absconding debtor, or one who is fraudulently disposing of his property, an affiant alleging him to be any one of these must make the allegation with certainty. Swearing to infer- ences — not to facts — will not warrant the issue of the writ.^ The affiant may be in error as to the facts stated in good faith, but the falsity of the grounds would not cut off intervening creditors who subsequently attach.- Even though the plaint- iff, as deponent, is mistaken in his facts, the writ will issue, as in all cases, when they are sworn positively. It is necessary that the grounds of attachment be stated substantially and in- telligently.^ No writ should be issued when they are stated vaguely in the affidavit,* AVhen breach of contract is the ground, the plaintiff should swear to the breach in his affidavit for attachment,^ and show the specific amount of damage.^ § 133, Claim. — If the requirement is that the plaintiff must state the character of his claim, he may do so in brief and or- dinary language, without the particularity necessary to plead- ing, provided the characterization conveys the idea without equivocation,^ Often it occurs that a conscientious affiant must qualify his statement by some explanation. He may rightly do so if he 1 Howell V. Muskegon Judge, 88 396 ; Stein v. Levy, id, 381 ; First N. Mich. 361 ; Deimel v. Scheveland, 16 Bank v. Swan, 3 Wyo. 356 ; Kerch- Daly, 34; National Broadway Bank ner u McCormac, 25 S. C. 461; Kel- V. Barker, 61 Hun, 625, dMinguislir ley r. Force,' 16 R. I. 628. ingHaebler v. Bernharth, 115 N. Y, •'^ Smadbeck v. Sisson, 66 How. Pr, 459. 220. See Riley v. Sisson, id. 224. '■^Orr Shoe Co. u Harris, 82 Tex. « Golden Gate Co. v. Jackson, 13 273. Abb. New Cases, 476. 3 Tanner, etc. v. Hall, 22 Fla. 391. "^ Holstein Manuf. Co. v. Lea, 18 Ga. nieinhard v. Neill, 85 Ga. 265; 647; Force v. Hubbard, 26 id. 289; Mechanics', etc. v. Loucheim, 55 Hun, Theirman v. Vahle, 32 lud. 400. § loi.] CEKTAINTY. 103 does not impair the certainty of the required oath.^ It would not do to say that the defendant is indebted in a sum approxi- mating a thousand dollars,- but it would be sufficient to state the debt as exceeding- a thousand dollars.^ In the latter case the oath will be deemed certain in its averment to the amount of a thousand dollars, while in the former it is wholly in- definite. Conscientious explanations should be respected and gra- ciously received and considered by the court, since they ma}'' give greater assurance of the truth of the affidavit than a formal following of the statute words would give. It is better that the plaintiff lose his application than that he should suc- ceed by a positive averment which, in conscience, he ought not to have made without qualification. § 134. Consistency. — That the debtor has assigned his prop- erty and is about to assign it was held not necessarily incon- sistent;* that he has disposed of his property and is about to dispose of the rest, to defraud the plaintiffs, was held a con- sistent and sufficient averment;^ but the distinction is plain between the charge that the debtor has disposed and is about to dispose of all his property.^ Where the statute authorizes attachment when the debtor has disposed of his property to cheat or dela}'' his creditors, or is about to do so, if the plaint- iff alleges the latter only, it is error for the court to charge that he must prove the former.'^ Though several be laid, proof 1 Lampkin v. Douglass, 27 Hun, that the statement of the debt must 517. Though the statute required be that it is over and above any set- the plaintiflf to swear that he was not off, the quali6cation just mentioned indebted to the defendant "in any would be fatal, wise or upon any account whatevei'," ~ Lathrop v. Snyder, 16 Wis. 293. the court held an affidavit good in 3 ]sTg]sQ,^ ^. Munch, 23 Minn. 229; which the plaintiff admitted his in- Flower v. GrifHth, 12 La. 345. debtedness in "some small amount," ^Nelson v. Munch, 23 Minn, 229, contracted since the note sued upon ■ Contra, Kegel v. Schrenkheisen, 37 was given. Turner v. McDaniel. 1 Mich. 174. See Hills v. Moore, 40 McCord, 552. An affidavit was sus- id. 210. tained though the plaintiff, after SAuerbach r. Hitchcock, 28 Minn, stating a positive sum as the debt 73; Smith r. Baker, 80 Ala. 318. due him, qualified it by admitting ^ Blass v. Lee, 55 Ark. 329. that it might be subject to set-off. " AVaples Platter Co. v. Low, 54 Holstein JIanuf. Co. v. Lea, 18 Ga. Fed. 93. See Dawley v. Sherwin 647. However, if the statute requires (S. D.), 59 N. W. 1027. 104 ATTACHMENT AFFIDAVIT. [§ 135. of one good ground is sufficient ; ^ yet it has been held that faihire to prove that the defendant was about to abscond, and that he had frequently disposed of his propert}^ to defraud his creditors, was fatal, though it was fully established that the debt sued on was fraudulently contracted.^ The statement that the defendant has "hastil}^ removed his live-stock to another state for the purpose of hindering and delaying the plaintiff in the collection of his debt" was not deemed such an averment as would justify attachment.^ The allegation that the debtor has made a pretended or simulated sale to avoid creditors is sufficient ground.* An averment that the debtor has disposed of property to defraud any of his cred- itors is sufficient, where the statute provides in general terms that attachment may issue if the debtor has " assigned, dis- posed of, concealed, etc., any of his property to defraud his creditors." * YIII. Alternation. §135. When allowed. — The requirement of certainty does not altogether exclude alternate allegations. While it would be uncertain should the statement be that the debtor is either a non-resident or is a resident now absent from the state; that he is an absconding debtor or is concealing his property to avoid execution, it would not be uncertain to state that the debt sued upon is one of contract express or implied, where the statute requires oath that the sum due is upon contract express or implied ; for the purpose of the legislator was to confine attachments to suits upon contract, and such affidavit is a suflRcient compliance with the law, though there is alter- nation.** In a petition or declaration the contract must be stated without such alternation ; but the niceties of pleading are not essential to an affidavit. Yet even in pleading in civil 1 Strauss v. Abraham, 33 Fed. 310. Michigan, § 7987 ; Allen v. Kinyon, 2Dumay u Sanchez, 71 Md, 508. 41 Mich. 281. 3Craigmiles v. Hays, 7 B. J. Lea, ^Klenk v. Schwalm, 19 Wis. Ill; 720. See Elliott u Heath, 32 Mo. App. Hawley u Delmas, 4 Cal. 195; Hop- 579. kini v. Nichols, 32 Tex. 206; White 4 Haralson v. Newton, 63 Ga. 163. v. Lynch, 26 id. 195. See Garner v. 6 Howell's Annotated Statutes of Burleson, id. 348, and Culbertson V. Cabeeu, 29 id. 247. § 135.] ALTERNATION.' 105 cases, facts ma}^ soraetimes be stated in the alternative if either is sufficient to establisii a proposition. Even in libels for the forfeiture of property, stating a charge in the alter- native may hold good if either alternative constitutes a ground for which the thing libeled may be forfeited.^ The particu- larity of criminal indictments is not deemed essential. The reasoning is that the requirement of the law is met, which- ever of the alternatives may be true, provided both are good allegations. The same reasoning may be applied to some re- quirements of the attachments laws, respecting affidavits, though inapplicable to others. If a statute limits attachments to suits upon contract express or implied, the affidavit may state the debt to be upon an express contract ; it may state it to be upon an implied contract ; it may state it to be upon an express or implied contract. But it would notjdo to say that the debt is in the sum of $100 or SI, 000 ; that the defendant is a non-resident or an absconding debtor; that he is conceal- ing himself or his property to avoid creditors, etc. Thus, even if both of such allegations be good grounds, — either capable of standing alone, — it has been held that they cannot be coupled disjunctively without impairing the legality of the affidavit.'-' So the alternation " Has disposed or is about to dispose of his property to defraud creditors," is bad, but may be amended.^ " Has assigned and is about to assign, with intent to defraud," was sustained.* A plaintiff swore in his affidavit for attach- ment that the defendant "is a non-resident, or has removed 1 The Emily and Caroline, 9 Wheat. Garner v. Burleson, 26 id. 348 ; Cul- 381 ; The Caroline, 7 Cr. 500, note ; bertson %\ Cabeen, 29 id. 247 ; Allen United States v. The Little Charles, v. Fleming, 14 Rich. (S. C.) 196 : Hau-- 1 Brock. 348; The Merino, 9 Wheat, ley v.. Delmas, 4 Cal. 195; Wilke v. 391; The Samuel, 1 id. 14; Jacob Cohn, 54 id. 212; Ronaldson r. Ham- V. United States, 1 Brock. 520 ; Par- ilton, 5 La. Ann. 203 ; Elam v. Barr, sons on Siiippiug and Admiralty, 11 id. 622; Hickman i*. Fleuoriken, vol. 2, p. 383. 12 id, 268; Rogers v. Ellis. 1 Handy, 2 Kegel V. Schrenkheisen. 37 Mich. 48 ; Jewel v. Howe, 3 Watts (Pa.), 175 ; Blum f. Davis, 56 Tex. 426 ; Car- 144. penter v. Pridgen, 40 id. 32 ; Guile v. 3 Rothchild v. Mooney, 59 Hun, 622. McNanny, 14 Minn. 520; Stacy v. Co???|jare Goodbar u. Bailey, 57 Ark. Stichton, 9 Iowa, 399; Devall v. Tay- 611, with Durr v. Hervey, 44 id. 302. lor, Cheves. 5; Wray r. Gilmore, 1 •* Detroit Free Press Co. v. Associa- Miles, 75 ; Shipp v. Davis. Hardin. 65 ; tion, 64 Mich. 605. Hopkins i'. Nichols, 22 Tex, 206; 106 ATTACHMENT AFFIDAVIT. [§ 136. property or is about to remove property with intent to de- fraud/' etc. As the statute of the state where the affidavit was made lays down these grounds alternately, the affidavit was sustained.^ But when the statute does not so express the grounds, alternation in the affidavit is held bad and the writ should be denied.^ And even though the statute be writ- ten as above expressed, alternation in the affidavit should not be allowed if the evident intent of the legislature was to lay down separate grounds.^ An alternative denial in an answer that the defendant has assigned, disposed of or concealed his property is good pleading.^ Whenever two grounds are thus disjoined, and one of them is bad, the affidavit cannot be acted upon ; ^ but it is not fully settled that two good grounds may not be legally coupled by the disjunctive or in an affida- vit; indeed, the affirmative has been judicially maintained.'' § 130. Unity of idea. — The use of the disjunctive is allow- able in affidavits, if the statute uses it in such a sense as to express but one ground. For instance, if the grounds are numbered in the statute, and under one number is placed the ground, If the debtor absconds or concecds himself: may not the affiant swear that his debtor has absconded or is concealing himself? It is, under some circumstances, the only honest form of oath that the plaintiff can take with regard to his 1 Penniman v. Daniel, 90 N. C. 154. Hagood v. Hunter, 1 McCord, 511 ; So in other states: Kuhn v. Embr}% Barnard v. Sebre, 3 A. K. Marshall, 35 La. Ann. 488; Societe, etc. v. Mil- 151; Dunnenbaumu. Schram, 59 Tex. liken, 135 U. S. 304, clistingidshing 281. Hopkins v. Nichols, 22 Tex. 206. •* Stewart v. Cabanne, 16 Mo. App. 2 Dunnenbaum v. Schram, 59 Tex. 517 ; Penniman v. Daniel, 90 N. 0. 281 ; Bishop v. Fennerty, 46 Miss. 154 ; Sandheger v. Hosey, 26 W. Va. 570 ; Dickenson v. Cowley, 15 Kan. 221 ; Tessier v. Englehart, 18 Neb. 167 ; 269 ; People v. Recorder, 6 Hill, 429. Irviu v. Howard, 37 Ga. 18 ; Howard 3 Braf man v. Asher, 78 Ga. 32 ; v. Oppenheimer, 25 Md. 350 ; Dean v. Duitruff r. Tuthill, 62 Hun, 571 ; Oppenheimer, id. 368 ; Smith v. Fos- Johnson v. Buckel, 65 id. 601; Win- ter, 3 Coldw. (Tenn.) 139; Goss v. ters V. Pearson, 72 Cal. 553 ; Pearre Gowing, 5 Rich. (S. C.) 477. Contra, V. Hawkins, 62 Tex. 435 (see Cleve- Haygood v. Hunter, 1 McCord (S. C), land V. Boden, 63 id. 103); Good- 511; Wood v. Wells, 2 Bush, 197; year Rubber Co. v. Knapp, 61 Wis. Blum v. Davis, 56 Tex. 423 ; Hardy 103; Miller v. Munson, 34 id. 579; v. Trabue, 4 Bush, 644; Klenk v. Whitney v. Brunette, 15 id. 61. Schwalm, 19 Wis. Ill ; Jones v. Peck 4FirstN. Bank u Steele, 81 Mich. 93. (Mich.), 59 N. W. 659; Emerson v. 5 Davis u. Edwards, Hardin, 342; Spring Co. (Mich.), 58 N. W. 659. § 137.] ALTERNATION. 107 debtor's disappearance. "When the leading idea of a statute ground for attachment is the avoidance of process by ab- sconding, the means of avoidance may be sworn to in the alternativej so may incidental facts respecting other leading grounds.^ Inconsistent grounds, when copulativeh'^ joined, are liable to the same objection to which they would be exposed if ex- pressed alternately ; such as the statements that the debtor has disposed of certain property to defraud creditors, and that he is about to dispose of the same property for that purpose, since it is not possible that both assertions can be true.- §137. Debt stated. — Xothing more positively requires un- equivocal statement than the amount of the indebtedness sued upon ; yet when a plaintiff had sworn that the defendants "are or will be justly indebted," he was allowed to amend by strik- ing out the words "or will be."* "Without such emendation the sworn allegation of indebtedness would doubtless have been fatally defective by reason of the alternation which coupled a good cause of action with one totally irrelevant. One can- not be sued because he will be indebted, even in states where there is no necessity of averring that the debt is due in order to conserve property to satisfy it eventually; and where the maturity of the debt is an essential averment, no valid writ can be issued without such allegation in the affidavit. To aver that defendants " are or will be indebted " is not to aver that they now are so ; and if not amended the affidavit would be fatally defective. An affidavit that the debtor "fraudulently contracted the debt or incurred the obligation," and stating the debt as arising " by express contract and by implied con- tract," has been held good.'* 1 Parsons v. Stockbridge, 42 lud. 104 ; Bosbyshell v. Emanuel, 12 S. & 121; Stokes v. Potter. 10 R. I. 570; M. 63; Wells v. St. Dizier, 9 La. Ann. Van Alstyne v. Erwine, 1 Kernan, 119; Conrad n McGee, 9 Yerger, 428 ; 331 ; McCraw v. Welch, 2 Col. T. 284 ; Goss v. Gowing, 5 Richardson, 477 ; Klenk v. Schwalm, 19 Wis. Ill ; Hopkins v. Nichols, 22 Tex. 206. Brown v. Hawkins, 65 N. C. 645 ; 2 Hinds v. Fagebank, 9 Minn. 68 ; Johnson r. Hale, 3 Stewart & Porter, Kegel v. Schrenkheisen, 37 Mich. 174. 331 ; Cannon v. Logan. 5 Porter (Ala.), 3 Tomniej- v. Gamble, 66 Ala. 469. 77; Commercial Bank v. Ullman, 10 * Emerson r. Detroit, etc. Co. (Mich.), S. & M. 411 ; Boothe v. Estes, 16 Ark. 58 N. W. 659. lOS ATTACHMENT AFFIDAVIT. [§§ 138, 139. IX. Amendments. § 138. In general. — An affidavit may contain all that is required, and be sufficient for the purposes of a jadgraent and the maintaining of the court's jurisdiction, and yet be such that it ought to be rejected. Not on grounds connected especially with the attachment laws, but on the general ground that all papers presented to the court should be of a proper character. Such an affidavit, though containing all required allegations, may be disrespectful, frivolous, unseemly; it may be ridiculously prolix, tediously circumstantial, or otherwise objectionable, so that the court may direct its modification ; and upon the plaintiff's refusal to change it, the court, in the exercise of its right to maintain order and discipline, may de- cline to allow it to be filed. § 139. "^he superfluous words of a statute may be safely omitted in making the affidavit. Swearing that the defend- ant is indebted is equivalent to swearing that he is "justly indebted," except where the statutes prescribe the quoted words. All that it is necessary to express is the meaning of the statute.^ Words that would seem redundant in the statute may be of evident importance in an affidavit. The courts will judge of their necessity ; and it is better to retain all the adjectives and adverbs of the statutory requirement. How- ever, they are often non-essentials.- In drawing an affidavit one had better say too much than too little, since mere surplusage, when not inconsistent with required averments, will not invalidate them.^ Mere clerical mistakes, such as the omission of a word easily supplied in making sense of the context (such as the word '«' is," when omitted, being part of the verb "is indebted"), djD not invali- iQath that plaintiff is "justly en- Martin,! Ark. 886; Hughes v, Stin- titled to recover," held necessaiy. nett, 9 Ark. 211. Reed v. McCloud, 38 W. Va. 701; 3 Curtis v. Moore, 3 Minn. 39; Mc- W. Va. Code, ch. 106, § 1. Mahon v. Boardman, 29 Tex. 170 ; ■2 Oliver u. Town & Watson, 28 Wis. Nelson v. Munch, 23 Minn. 329; 328 ; Mairet v. Marriner, 34 id. 583 ; Pitkins v. Boyd, 4 Greene (la.), 255 ; Trowbridge v. Sickler, 42 id. 417; Anter v. Steamboat, 34 Miss. 269; Creasser v. Young, 31 Ohio St. 57; Commercial Bank v. UUman, 18 id. Drake v. Hager, 10 Iowa, 556; Liven- 411; Lee v. Peters, 9 id. 503; Tom- good V. Shaw, 10 Mo. 272 ; Kennedy mey v. Gamble, 66 Ala. 469. V. Morrison, 31 Tex. 207 ; Hughes v. § ^m AMENDMENTS. 109 date the affidavit.^ So, the substitution of one word for another Avill not be fatal to the instrument if the sense can be readily ascertained ; - such as the word " goods " for " property." ^ There is no necessity for such nicety of exjiression as is re- quirsd in old forms of pleading. If defendants are averred, in the plural, to be non-residents, the affiant may omit to add, " nor is either of them a resident," etc.^ If the statute re- quires oath that the claim is just, equivalent words will an- swer;^ so, if it requires the plaintiff to swear that he believes he ought to recover, he may swear that the debt is due.*' § 140. Omissions. — The omission of averments positively required by the statute will not invalidate the affidavit, if the requirement of such averments is unconstitutional.^ It is always safe to omit what is presumed in the absence of assertion, such as the fact that the defendant is an adult.^ Redundancy is not a fatal defect. One part of the instrument may correct another. A slight error in the affiant's name, in the recital, is cured by his signature.^ If his name is not 1 Buchanan v. Sterling. 63 Ga. 227. Compare City Bank v. Flippen, 66 Tex. 610. ^'ee Huffman v. Hardeman (Tex.), 1 S. W. 575. 2 Levy V. Elliott, 14 Nev. 435; Mc- Clanahan v. Brack, 46 Miss. 246; Buclianan v. Sterling, 63 Ga. 227. 3 Hafley v. Patterson, 47 Ala. 271. 4 Franklin v. Claflin, 49 Md. 24. 5 Ludlow 11. Ramsey, 11 Wall. 581; Grutman v. Virginia Iron Co., 5 W. Va. 22. 6 Sleet V. Williams, 21 Qhio St 82. "Ross V. Jenkins, 7 W. Va. 284; Lynch v. Hoffman, id. 553, 578. 8 Wentzler v. Ross, 59 How. Pr. 397. 9 Kahn v. Herman, 3 Ga. 266 ; Hun- ter V. Peaks, 74 Me. 363. Though there be two plaintiffs, their repre- sentation by a singular pronoun does not vitiate the affidavit. Faii'banks V. Lorig (Ind. App.). 29 N. E. 452. If there are two defendants, an affidavit averring that it is "not to harass tlie defendant" is insufficient. Perrill r. Kauffmau, 72 Tex. 214; Gunst v. Pelham, 74 id. 586. Two plaintiffs suing, the affidavit by one of them that the "plaintiffs" are apprehen- sive that they u-ill lose their claim unless attacliment issue is not ob- jectionable. Williams v. Stock Board (Mich.), 57 N. W. 1089, distinguishing Weimeister v. Manville, 44 Mich. 408. A slight variance between the writ and the affidavit in a partnership name is unimportant. Johnson v. Smith, 83 Ga. 779. If the word or words omitted can be spared without affect- ing the sense, the affidavit will be sustained. Jansen v. Mundt, 20 Neb. 320 ; Clark v. Miller, 88 Ky. 108. If the omitted word is suggested by the written part, the blank may be filled, or the affidavit may be good without the filling. Stewart v. Cabanne, 16 Mo. App. 517; De Bebian v. Gola, 64 Jld. 262. Not only slight omissions, but all errors which do not affect the sense, may be either cured by amendment or disregarded. Whipple r. Hill, 86 Neb. 720; Jansen v. Mundt, 20 id. 110 ATTACHMENT AFFIDAVIT. [§ 1-11. \ stated in the body of the affidavit, the fault is not serious. But when the plaintiff's christian name in his affidavit differed materially from that in the petition, the inconsistency was not excusable.^ The essential matter is that the affidavit, as a whole, shall show that it was made by the party whose oath it purports to be, so as to render him responsible for the sworn statement. He certainly cannot become entitled to the benefit of the affidavit if it shows anything less. But it w^as held sufficient, in one instance, when it did not name the plaintiff or defendant as such, was not entitled in the suit and not attached to the original papers.^ Ordinarily it should have the title of the suit placed at the top, which may be re- ferred to as " the above-entitled cause " in the body, without further naming the parties.^ § 141. It has been held that the omission of the name of one of the plaintiffs in the petition is supplied by the signa- ture to the affidavit and bond, when the plaintiffs constitute a firm and the signature is that of the firm name.* The omission of the affiant's signature is a serious, though not everywhere held to be a fatal, defect,^ for it may be signed after filing by. way of amendment,*^ and the jurat may be at- tached after the affidavit has been filed,^ both by leave of court. And the seal, may be attached to the jurat by way of 320. See Wentworth v. Sawyer, 76 Weis v. Chipman, 3 Tex. Civ. App. Me. 434 ; Ruth v. Green Bay, etc. R. 106. It has been held that the names Co., 37 Wis. 344; Burgess v. Stilt, 2 of the members of a firm may be How. Pr. 401 ; Kinney v. Herald, 17 supplied by way of amendment. Ark. 397; Cheadleu. Riddle, 6 id. 480. Emerson v. Detroit, etc. Co. (Mich.), 1 Focke V. Hardeman, 67 Tex. 173. 58 N. W. 659. '^ Beebe v. Morrill, 76 Mich. 114. & In Missouri the error is fatal, and See Harris v. Lester, 80 111. 307. the court has no jurisdiction of the 3 Gray v. Steedraan, 63 Tex. 95 ; attachment suit under such an affi- West V. Woolfolk, 21 Fla. 189. davit, and a deed to a purchaser at a 4 Barriere v. McBean, 12 La. Ann. sale under a judgment in such case 493. In Foran v. Johnson, 58 Md. is void. Hargadine v. Van Horn, 73 145, it was held that the mistake of Mo. 370. Contra, Bates v. Robinson, inserting " James & Co." instead of 8 Iowa, 318 ; Hitsman v. Garrard, 16 the firm name, " James Foran & Co.," N. J. L. 124. in the affidavit, was not fatal, since ^ Fortenheim v. Claflin, 47 Ark. 49 ; other parts of the instrument ren- Hyde v. Adams, 80 Ala. 111. dered the meaning certain. " Plaint- "^ Id. iff" for "plaintiffs" is immaterial. §§ 142, 143.] AMENDMENTS. Ill amendment.^ A blank in the clerk's certificate may be filled by inserting the date, if the attachment shows what the date is, and the correction may be by motion.^ It is not like the omission to state the grounds of the action, for it does not affect the jurisdiction, while failure to aver the grounds is fatal and irremediable because it does affect the jurisdiction * and cannot be remedied after the issue of the writ.* The general rule is that whatever is statutorily required to the validity of the attachment cannot be omitted without fatality. The venue is necessary to prove the administration of the oath, and it should not be omitted ; ^ but it has been held that the omission may be supplied.'^ § 142. Variances. — Slight variance between the petition and the affidavit may sometimes be explained by comparing the one with the other, when the discrepancy does not amount to a substantial defect. Even if the amount of the claim is slightly understated in the affidavit, the error will not prove fatal when the writ follows the affidavit and not the petition averring a greater sum to be due.' If the affidavit corresponds with the petition as to parties and amount, and both are filed together with the bond, there is sufficient identification.^ So when the affidavit is annexed to the writ.^ But variance be- tween the affidavit and petition, as to the time of the ma- turity of the note sued upon, is fatal. ^^ Also variance as to the names of the firm-plaintiff.^^ § 143. Fatal defects. — When an affidavit is fatally defective the court should disregard it; but in case the court should ill-advisedly issue the writ, the best course for the plaintiff to ])ursue is to abandon it and begin his proceedings anew. No 1 Whittenberg v. Lloyd, 49 Tex. 5 Rudolph v. McDonald, 6 Neb. 163. 633. See McCartney v. Branch Bank, 3 -'- Brack v. McMahon, 61 Tex. 1 ; Ala. 709. Anderson v. Coal Co., 12 W. Va. 526. 6 Wiley v. Bennett, 9 Baxt. 581. ^ Zeregal v. Benoist, 33 How. Pr. ^ Stewart v. Heidenheiraer, 55 Tex. 129. See many citations in chapter 644. on jurisdiction. ^ Munzeheimer v. Heinze, 79 Tex. •» Wright V. Smith, 66 Ala. 545; 318. Johnson v. Hannah, id. 127. But see ^ Beebe v. Morrell, 76 Mich. 114. Day V. Bennett, 18 N. J. L. 287 ; lo Moore v. First N. Bank, 82 Tex. Sliaddock v. Marsh, 21 id. 434, and 537. Irwin V. Howard. 37 Ga. 18, respect- ^^ Focke v. Hardeman, 67 Tex. 173. lug the amendability of such defect. See Foran v. Johnson, 58 Md. 144. 112 ATTACUMEXT AFFIDAVIT. [§ 144. valid judgment can be based upon such false foundation; no jurisdiction can be acquired. Defects in the affidavit are of two kinds: those which affect the jurisdiction and those of a minor character. The former may be urged to impeach a judgment collaterally, while the latter can be taken advantage of in the case only, during its progress before the court of the first instance or on a))peal. Where a statute requires the plaintiff to swear to the ground upon which the attachment is issued, and he fails so to swear, the defect is jurisdictional; but where the requirement is " that certain facts shall appear by affidavit to the satisfaction of the court or judge " before an order for publication notice to a non-resident debtor can be issued, " defects in such affi- davit can only be taken advantage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally."^ That is, defects not jurisdictional; for though the court is to be the judge of what is proof to its satisfaction, it cannot acquire jurisdiction by accepting an affi- davit omitting an essential fact — for instance, the debtor's non-residence, when that is the ground ; or his absconding, when the plaintiff proceeds upon that ; nor can the oath to the indebtedness be omitted. It has been held that an affi- davit, '• though wholly insufficient," may be amended after the issue of the writ.- But the court must have acquired ju- risdiction before it can make an order to amend. If publica- tion has been made after writ issued on an affidavit insuffi- cient, new publication should be made after the amendment.'^ Amendment has been allowed to fix the date of the maturity of the debt more definitely after the issue of the writ ; * and even after the levy the plaintiff has been permitted to add to his declaratipn that he sues for the use of another.^ In Kan- sas insufficient affidavits have been amended.^ § 144. Amendable defects. — Where amendment of the affi- davit is allowable, the plaintiff should not fail to amend as 1 Pennoyer v. Neff, 95 U. S. 721. 6 Baker Wire Co. v. Kingman, 44 2 Penniman v. Daniel, 93 N. C. 333 ; Kan. 270 ; Tracy v. Gunu. 29 id. 508 ; Brown v. Hawkins, 65 id. 645, Wells v. Danford, 28 id. 487 ; Fergu- 3 Bank v. Blossom, 92 N. C. 695; son v. Smith, 10 id, 396; Burton v. Price V. Cox, 83 id. 261; Church v. Robinson, 5 id, 287; Bunu v. Pritch- Furniss, 64 id, 659. ard, 6 la. 56. See Gans v. Beasley 4 Donnelly v. Elser, 69 Tex. 282. (N. D.), 58 N, W. 714. 5 Epstiu V. Levensou, 79 Ga, 718. § 145.] AMENDMENTS. 113 soon as he discovers his mistake; and this should be before the issuance of the writ. Amendment is not universally allowable after the writ has been issued — some of the states permitting it while others do not. Even after a motion to quash the proceedings on the ground of defect in the affidavit, the plaintiff is allowed to amend, under certain statute pro- visions/ and time is given him for the purpose. Material alle- gations cannot be supplied upon leave granted to amend as to form. The general rule is that defects of form are amend- able : defects of substance incurable.- Should an attachment be dissolved because the affidavit is defective, the plaintiff may begin anew, as a matter of course ; but to dissolve the attachment and grant leave to amend the affidavit is generally erroneous (though it has been permit- ted''), and the error may avail the defendant upon appeal. If the affidavit is utterly void and worthless the defendant may have a valid judgment ultimately rendered against him if he litigates without objecting to it; but the judgment would be as if in an ordinary suit.^ § 145. Grounds stated in an amended affidavit, made after the issuance of the writ, must not be those first existing at 1 Clarke Banking Co. v. Wright, always amendable there when not 37 id. 383; Struthers v. McDowell, void. Hardin v. Lee, 51 Mo. 241; 5 Neb. 491 ; Irwin v. Bank, 6 Ohio St. Donnell v. Byern, 80 id. 382. It may 81 ; Bailey v. Nat. Bank, 127 III. 333 be amended in Nebraska to state {compare Winters v. Pearson, 72 Cal. venue and show jurisdiction. Stru- 553); Fitzpatrick v. Flannagan, 106 thers n McDowell, 5 Neb. 491. And U. S. 650 ; Bunn v. Pritchard, 6 Iowa, after motion to quash for a particu- 56; Magoon v. Gillett, 54 id. 54; At- lar defect, that defect may be cured kins V. Womeldorf, 53 id. 153 ; Rog- by amendment. Moline, etc. Co. v. ers V. Cooper, 33 Ark. 406. Curtis (Neb.), 57 N. W. 161. Affida- 2 Mudge V. Steinhart, 78 Cal. 34 ; vit may be amended to show that Tanner v. Hall, 33 Fla. .391 ; Flexner the affiant was the attorney or agent V. Dickerson, 65 Ala. 129. A mistake of the plaintiff. Tracy v. Gunn, 29 in the direction of an affidavit, being Kan. 508. But it need not be amended not one of substance, is amendable, for the last stated purpose if the rec- Warren r. Purtell, 63 Ga. 428. In ord shows him to be agent or attor- Missouri the affidavit maj' be ney. Irwin v. Evans, 92 Mo. 472; amended before or after motion to Evans v. Lawson, 64 Tex. 199. quash. R. S. Mo. (1889), g§ 563, 568 ; 3 Nolen v. Royston, 30 Ark. 561 ; Henderson v. Drake, 30 Mo. 363 ; Graves v. Cole, 1 G. Greene, 405. Musgrove v. Mott, 90 id. 107. It is * Hills v. Moore, 40 Mich. 210. 8 Hi ATTACHMENT AFFIDAVIT. [§ 146. the time of the amending of the affidavit, but those that existed at the time of the issuing of the writ ; for, if the court acted without jurisdiction, for want of essential facts, no new state of facts would cure the error.^ Any rights acquired by third persons between the time of the issuance of a writ upon a defective affidavit, and that of the amendment of the affidavit, would be unaffected by the amendment. In other words, though such tardy statement of the true grounds of procedure may be made available to the plaintiff against the defendant, they cannot reach the intervening rights and interests of others.^ But it has been held that an amendment to show how a debt arose relates to the beginning of the suit, so that the lien ranks above that of a junior attachment made before the amendment.^ Sureties' on a bond for the dissolution of an attachment are not bound for an increase of the plaintiff's claim made by amendment after the bonding;* but such sureties are not discharged by the plaintiff's -amendment of a count so as to state it more accurately .'^ If there should be such a change in one count of the declara- tion as to relieve the sureties from liability thereunder, they would yet remain bound for the sums claimed under the other counts not amended nor affected.^ § 14G. A motion for leave to amend the affidavit comes too late after a motion to vacate the attachment, as a general rule of practice.^ The practice varies in different states. In some, iLillard v. Carter, 7 Heisk. 604; fin, 65 id. 29; Ohio, etc. Co. v. Insur- Robinson v. Burtou, 5 Kan. 293 ; Hall ance Co., 13 Ohio, 220 ; Denny v. Ward, V. Brazelton, 46 Ala. 359 ; Crouch v. 3 Pick. 199. Crouch, 9 Iowa, 269 ; Marx v. Abram- ^ Cook tr. New York, etc. Co. (N. C), son, 53 Tex. 264 ; Wadsworth v. 19 S. E. 664. Cheeny, 10 Iowa, 257 ; Sherrill v. * Prince v. Clark. 127 Mass. 599 ; Bench, 37 Ark. 560 ; Deories u Sum- Hill r. Hunnewell, 1 Pick. 192; mit, 86 N. C. 126; Mantz v. Hendley, Willis v. Crooker, id. 204; Wood v. 2 Hen. & M. 308 ; U. S. Baking Co. v. Denny, 7 Gray, 540 ; Freeman v. Bachman, 38 W. Va. 84; Cosner's Creech, 112 Mass. 180. Adm'r v. Smith, 36 W. Va. 788. 5 Cutter v. Richardson, 125 Mass. 72. 2 Patterson v. Gulnare, 2 Dis. 505 ; « Warren v. Lord, 131 Mass. 560 ; Whitney v. Brunette, 15 Wis. 61; Knight r. Dorr, 19 Pick. 48; Seeley Bell V. Hall, 2 Duvall, 288 : Moore v. v. Brown, 14 id. 177. Graham, 58 Mich. 25 ; Williams v. ' Trow's Printing & Bookbinding Sharpe, 70 N. C. 582 ; Foster r. AVood- Co. v. Hart, 60 How. (N. Y.) Pr. 190. §§ 147, 148.] AMENDMENTS. 115 amendments to attachment affidavits are inhibited,' In oth- ers they are allowed with varying degrees of liberality .^ Landlords, on attachments for rent, have been allowed to amend their affidavits after the issuance of the writ.' And amendments by inserting grounds existing when the affidavit was first made have even been permitted after appeal,* though the general practice is otherwise.^ § 147. The rule is imperative in some states, and, indeed, it is pretty general, that fatal defects cannot be amended after the attachment has been issued.^ Even where amendments are allowable, they will not be periiiitted to the injury of other attaching creditors.'' Some errors or omissions in the affidavit may be cured by the petition filed simultaneously with it, or nearly at the same time. If the full names of persons composing a partnership are set forth in the petition or declaration, that sufficiently explains the affidavit where only the firm name is stated,^ just as like omission in the petition may be supplied by the affidavit.^ § 148. So far as the defendant is concerned, if he is present in court, and a motion by the plaintiff to amend an attach- ment is heard contradictorily, he has not the same reason to 1 Marx V. Abramson, 53 Tex. 264. Amendment has been allowed the 2Sherrill v. Bench, 37 Ark. 560; landlord even after the quashing of Tommey v. Gamble, 66 Ala. 174: his attachment because of the omis- Halley v. Jackson, 48 Md. 254 ; Allen sion of a necessary averment. Nolen V. Brown, 4 Met. (Ky.) 342; Worth- v. Royston, 36 Ark. 561. ington V. Carey. 1 id. 470 ; Staggers ^ Sherrill v. Bench, 37 Ark. 560. V. Washington, 56 Ala. 225 ; Lillard » Adams v. Merritt, 10 111. App. 275. V. Carter, 7 Heisk. 604. ^ xhe rule is well expressed in Lill- 3 Rogers v. Cooper, 33 Ark. 406. ard v. Carter. 7 Heisk. 604 ; Hall v. In Alabama the affidavit in an at- Brazelton, 46 Ala. 359. But there tachment for rent is not amendable are exceptions to the rule, as in if it omits to allege that the removal North Cai'olina. Brown v. Hawkins, of the crops (if that is the ground) 65 N. C. 645. was without the landlord's consent. " Patterson v. Gulnare, 2 Disnej', Shield V. Dothard, 59 Ala. 595. But 505. amendments in such attachments 8 Clayburg v. Ford, 3 111. App. 542. have been frequently allowed. Rich- See Barber v. Smith, 41 Mich. 138, ards V. Bestor, 90 Ala. 352 ; Dryer v. with reference to names and nominal Lewis, 57 id. 551 ; Steele v. Tutwiler, mistaken id. 113; Lecroy v. Wiggins, 31 id. 13. ^^ See Mason v. Rice, 66 la. 174. 116 ATTACHMENT AFFIDAVIT. [§ 149. complain of an amendment as a competing attaching creditor would have.^ Many defects of affidavit are cured by the defendant's gen- eral appearance,^ but not the omission of statutory requisites. His appearance does not give the court jurisdiction of the ancillary action where there is such omission. But it has been held that by appearing and putting the declaration at general issue the defendant waives all objection to the attachment.' When there are two attachment suits against a defendant who has a dormant partner, the partnership assets in the name of the defendant are attachable. One of the attachers would gain no advantage over the other by amending his pleading so as to include the dormant partner, nor would he lose his priority by the useless and harmless amendment.* No notice of such amendment need be given to the rival attacher, since it does not affect his interest or the question of priority.* § 149. Additions. — If the affidavit is good for a debt due, but bad for a debt not due, it may be amended ; ^ or to include additional items of debt;^ or to add that the affiant believes he Would lose his rent if left to ordinary process.^ If dam- ages be overstated, there m?y be correction by way of amend- ment.^ The plaintiff has been allowed to state corporate character by way of amendment.^" An affidavit of fraudulent intent in the disposition of property may be amplified on the trial by adding a statement of facts.^^ But new grounds are not to be ' In Fitzpatrick v. Flannegan, 106 * Wright v. Herrick, 125 Mass. 154 : U. S. 650, it was held that where Lord v. Baldwin, 6 Pick. 348 ; French amendments to defective affidavits v. Chase, 6 Greenl. 166. are authorized, they may be made = Tucker v. WJiite, 5 Allen, 322. after the levy ; even after the de- 6 Baker Wire Co. v. Kingman, 44 fendant has filed a plea in abatement Kan. 70. to the grounds upon which the writ "> Chapman v. Stuckey, 22 111. A pp. was issued and the levy made, the 31. plaintiff may amend and set forth 8 Norton i: Flake, 36 Mo. App. 698. new grounds, if the defendant is not 9 Freeborn v. Glazer, 10 Cal. 837. taken by surprise, nor prejudiced, l" Rosenberg r. Ciaflin Co., 95 Ala. nor put to any disadvantage thereby. 249. '- Bray ton r. Freese, 1 Ind. 121. n Josephi v. Clothing Co. (Mont.), 3 Gum Hardware Co. v. Denison, 33 P. 1; Magee v. Fogerty, 6 Mont. 83 Mich. 40 ; Wasey v. Mahoney, 55 237 ; Longstaff v. Miles, 5 id. 554 ; id. 194 ; Taylor v. Adams, 58 id. 187. Pierse v. Miles, id. 549 ; Tilton v. §§ 150-152.] AMENDMENTS. 117 added if they existed when the affidavit was made.^ Xor can the affidavit be negatived by amendment.- Disjunctive alle- gations, however, may be reconciled.^ § 150. If the defendant makes no plea in abatement or other resistance to an amended affidavit, but makes default, the plaintiff may move for judgment, in Missouri, without further proof.* § 151. The time for amendment is before the affidavit has been declared defective.^ Objections to defects should be made in the trial court before appeal;'' but amendment has been allowed in the appellate court.' If a judgment sustain- ing attachment is collaterally attacked on the ground that the affidavit, now lost, was insufficient, sufficiency will be pre- sumed,^ § 152. A voidable defect in the attachment affidavit must be attacked in the proceedings, if at all. After judgment there can be no collateral attack if the court had jurisdiction.' After property has been condemned in proceedings in rem the affidavit is not collaterally assailable.^" An amendable affi- davit is not void ; " so the jurisdiction is good ^- whether the defects be cured or not. Subsequent attaching creditors have no priority over the first attacher because of amendable defects in the proceed- ings. Their remedy is to compel an amendment.^^ An affi- davit "on belief" is amendable, as against an intervenor, in Arkansas.^* This is true with regard to minor errors; but Cofield. 93 U. S. 163 ; Erstein v. Haynes v. Co wen, 15 id. 645. Com- Rothschild, 23 Fed. 61 ; Coston v. pare Hargis v. Morse. 7 id. 415. Paige, 9 Ohio St. 397 ; Wheeler v. 9 Westcott v. Sharp, 5 N. J. L. 392 ; Farmer, 38 Cal. 203 ; Mont. Code Russel v. Work, 6 Vroom, 316 ; Scriv- €iv. Proc, §S 112-119. ener v. Uietz, 68 Cal. 1. 1 Brookmire v. Rosa, 34 Neb. 227. i" Burnett v. McCluey, 92 Mo. 280, - Freer v. White (Mich.), 51 N. W. overruling a case of the same title, 807. 78 id. 676, and Bray v. McCluey, 55 3 Salmon v. Mills, 49 Fed. 333. Ark. id. 128. Mans. Dig., § 315, construed. " Sheldon v. Kivett, 110 N. C. 408. ^ Musgrove v. Mott, 90 Mo. 107. 12 American Ins. Co. v. Hettler, 46 5 Id. 111. App. 416. 6Horton v. Miller, 84 Ala. 537; I3 Fleischner u. Cable Co., 55 Fed. Staggers v. Washington, 56 id. 225. 738; Hill's Code (Wash.), g§ 308, 322. ■^ Sheldon v. Kivett, 110 N. C. 408. 1^ Sanuoner v. Jacobson, 47 Ark. 31. 8 Head v. Daniels, 38 Kan. 1; 118 ATTACHMENT AFFIDAVIT, [§§ 153, 154. where the statute allows emendation beyond them, even to the perfecting of insufficient affidavits, the subsequent attach- ing creditor who has complied with the statute should rank above the first who has not. X. The Affidavit as Evidence. § 153, Where it is made the duty of the court to issue the writ upon the sworn statement of the necessary statutory facts, no further preliminary showing can be exacted of the plaintiff. The writ issues as a matter of course on the affi- davit and bond.^ If one of several statutory grounds be properly alleged in the affidavit, the showing is sufficient for the granting of the Avrit, though other grounds be inadequately stated.^ An oath to one's belief, and information received from others, is no evidence of the facts believed or heard ; yet, where the statute authorizes the attachment writ to be issued on such show^ing, the plaintiff's proof of the facts is relegated to the trial of the cause, or that of an issue involving them joined on some proceeding pendente lite. The oath being- evidence of the plaintiff's belief only, or of his hearsay infor- mation, or both, should be supported by a disclosure of the source of belief or information, the name of the informant, the reason of his not appearing, etc.^ And the affiant should swear that he believes in the truth of the information.* § 154. Troof to the satisfaction of the court. — But where the requisite facts must be proved to the satisfaction of the court, the affidavit of the plaintiff may not be deemed suffi- cient. The court may not be satisfied, and may require fur- ther proof. What the court must have proved (though by evidence ex parte) is some good ground for the issuing of the writ beyond the statement of indebtedness. Suppose the ground laid by plaintiff should be that the defendant is about to abscond. An oath that the plaintiff believes that the de- 1 Ferris v. Carlton, 8 Phila. 549. Crandall v. McKaj-, 6 id. 483 ; Yates 2Dunlap V. McFarland, 25 Kan. v. North, 44 N. Y. 271; Matter of 488 ; Lawver v. Langhans, 85 111. 138 ; Fitch, 2 Wend. 298. Rosenheim v. Fifield, 12 Brad. 802. * Decker v. Bryant, 7 Barb. 182. 3 Bennett v. Edwards, 27 Hun, 352 ; § 155.] AFFIDAVIT AS EVIDENCE. 119 fendant is about to abscond would be no establishment of the fact that the defendant is about to abscond. But, should there be evidence showino^ circumstances that are convincing: to the judge, he may be satisfied that the debtor is about to run away and may grant a writ. "When he must first be sat- isfied, not only of the absconding or intent to abscond, but that the object of the debtor is to defraud creditors, such ad- ditional facts must be reasonably shown by affidavits or other ex f arte evidence. In other words, statute requirements must be met, whatever they are.^ When the statute requires the plaintiff to make the preliminary showing "to the satisfaction of the judge," the affidavit must be such as to amount to legal proof, while yet uncontradicted.^ If the affidavit be such as to satisfy the judge, commissioner or other officer empowered to act judicially upon it, it will be sufficient for the granting of the writ, though it afterwards prove inadequate on motion to dissolve.^ Proof '•' to the satisfaction of the justice," as required by statute, is not the sole test of an affidavit.'* The justice may be satisfied and the writ may be issued; yet the affidavit it- self may not be such evidence of the fact stated in it as to warrant the justice in his action. AYhen tested by a motion to vacate or other proper legal method, it may prove insuffi- cient. § 155. Traverse. — Where no traverse of the facts stated in the affidavit is allowed, great strictness is required of the plaintiff in compliance with the law governing the issue of an attachment upon his oath or upon other evidence.^ Where it 1 Pierce v. Smith, 1 Minn. 83; Staples u Fairchild, 3 id. 41 ; Skin- Keigher v. McCormick, 11 id. 545; niou v. Kelley, 18 id. 355; Scoon- Ex parte Haynes, 18 Wend. 611 ; Mil- maker v. Spencer, 54 id. 366 ; Inman ler V. Brinkerhoff, 4 Den. 118; Ex v. Allport, 65 111. 540; Morrison v. parte Robinson, 21 Wend. 672; hire Fake, 1 Pinney, 133; Easton v. Mala- Faulkner, 4 Hill (N. Y.), 5C8 ; Matter vasi, 7 Daly, 147. of Bliss, 7 id. 187. * Curwensville Manuf. Co. v. Bloom, 2 St. Amant r. Beixcedon, 3 Sandf. 10 Pa. Co. Ct. 275 ; Act July 12. 1842, 703; Mayhew v. Dudley,! Pinney, §27. 95 ; Hill V, Bond, 22 How. Pr. 272 ; 5 Formerly this was the case in Mott V. Lawrence, 17 How. 559 ; Vos- Wisconsin, and the reasons apply burgh V. Welch, 11 Johns. 175 ; Brown wherever traverse is not permitted. V. Hinchman, 9 id. 75. Lorrain v. Higgins. 2 Pin. (Wis.) 454; 3 Hall V. Stryker, 27 N. Y. 596 ; Quaries r. Robinson, id. 97 ; Merrill 120 ATTACHMENT AFFIDAVIT. [§§ 156, 157. is allowed, more liberality is shown towards the plaintiff in granting him the writ, since there is a summary remedy, by rule or otherwise, in case the attachment should turn out to have been improvidently granted.^ § 156. Though the plaintiff may have legally procured his writ upon sw^earing to his belief of a fact, the question, when the defendant comes to traverse the affidavit, is not what the plaintiff believed when he made oath, but whether the facts were really true which he swore that he believed to be true.- The grounds for attachment laid down in any statute are not the beliefs of facts but facts themselves ; and, though the writ may issue under many of the statutes upon oath to believe, it can never be consummated without proof of the necessary facts. And wherever the debtor may legally draw the grounds of attachment into question by traverse, in some form, before the trial of the cause, those grounds cannot be maintained merely by proof of the plaintiff's belief in their existence.^ When an affidavit has been traversed and sustained it has become part of the pleadings ; and it will not thereafter be struck out on motion because the affiant does not appear and submit to a cross-examination.^ XI. The Affidavit Jurisdictional. § 157. Eeasons. — The affidavit required by statute is essen- tial to the validity of the writ and to the jurisdiction of the court in attachment proceedings. It is required and rendered thus essential because the creditor has no specific lien upon any particular property of his alleged debtor; and he is not entitled to the extraordinary relief which the statute gives to enforce an ordinary debt unless he makes the required oath showing the indebtedness to exist (and that the debt is due, when the statute requires that showing), and that such statu- tory grounds exist as are requisite to entitle him to the pro- V. Law, 1 id. 221 ; Morrison v. Ream, were decided upon construction of id. 244 ; Slaughter v. Bevans, id. 348. Wisconsin statutes, 1 Davidson v. Hackett, 49 Wis. 186. 3 Davidson v. Hackett, 49 Wis. 186 ; ^ Davidson v. Hackett. 49 Wis. 186 ; Noonan v. Pomeroy, 14 id. 568 ; Rice Cohen v. Burr, 6 id. 200 : Cooper v. v. Jerenson, 54 id. 248. Smith, 8 id. 358. The above cases * Churchill v. Hill (Ark.), 26 S. W. 378. § 157.] AFFIDAVIT JURISDICTIONAL. 121 cess of the court. The procedure is anomalous; the remedy is utterly repulsive to the instinct of justice, if ordinary pro- cess is adequate and no reason can be shown why there should be seizure before judgment. The remedy is one that might greatly injure the defendant if he is not really indebted as al- leged, or is not really putting in jeopardy the right of the creditor to secure his claim in the ordinary way; and there- fore the law demands that affidavit of the facts shall be made; and authorizes the court to take jurisdiction to issue the pro- cess only when the plaintiff has filed his oath, and also a bond when that too is statutory, as it usually is. The statute re- quirement of an alfidavit, or its equivalent in some form of preliminary evidence to support the writ, is universal. The jurisdiction of the court depends upon the affidavit (not upon the truth of it '), so far as concerns the issuance of the attach- ment. Unless the jurisdiction exists; unless the plaintiff lays the required foundation, the writ, if issued, and the proceed- ings following it, would be null and void. If there is no affi- davit, or if there is one fatally defective and not amendable, and if there is no w^aiver by the defendant, all following pro- ceedings under a writ issued without such requisite would be jurisdictionless and void.'- iDwyer v. Tostard, 65 Tex. 432; Wallace, 19 id. 57, 74; Cadwell r. Tanner v. Hall, 22 Fla. 391. Colgate, 7 Barb. (N. Y.) 253 ; Vankirk 2 Wright V. Smith, 66 Ala. 545; u Wilds, 11 id. 520; Bates v. Relyea, Johnson v. Hannah, id. 127 ; Clark v. 23 Wend. 386 ; Earl v. Camp, 16 id. Garther, 6 id. 139; Jones v. Pope, 562; Morgan v. House, 36 How. id. 154; Cooper v. Trederick, 9 id. (K Y.) Pr. 326; Smith v. Luce, 14 738 ; McGowen v. Sprague, 23 id. 524 ; Wend. 237 ; Ex parte Haynes, 18 id. Kirksey v. Fike, 27 id. 383 ; Hoze- 611 ; Ex parte Robinson, 21 id. 672 ; man v. Rose, 40 id. 212 ; Courrier v. In re Faulkner, 4 Hill (N. Y), 598 ; Cleghorn, 3 Iowa, 523 ; Eads v. Pit- In re Bliss, 7 id. 187 ; Parker v. Wal- kin. 3 id. 77 ; Clark v. Roberts, 1 rod, 16 Wend. 514 ; Smith v. Davis, 111. 222 ; Manly v. Headley, 10 Kan. 29 Hun, 306 ; Foster v. Jones, 1 Mc- 88; Black v. Brisbin, 3 Minn. 360; Cord (S. C), 116; Devries r. Summit, Beach v. Botsford, 1 Doug. (Mich.) 86 N. C. 126 ; Biggs v. Blue, 5 McLean, 199 ; Greenvault v. Farmers' Bank, 148 ; Bruce v. Cook, 6 Gill & Johnson 2 Douglas (Mich.), 498; Wight v. (Md.), 345; Shockley v. Bulloch, 18 Warner, 1 Doug. 384 ; Wilson v. Ga. 283 ; Graham v. De Lannay, 34 id. Arnold, 5 Mich. 98 ; Hale v. Chand- 422 ; Erwin v. Commercial Bank, 3 ler, 3 id. 531 ; Buckley v. Lowry, 2 La. Ann. 186 ; Kerr v. Smith. 5 B. id. 418 : Le Roy v. East Saginaw Mon. 352 ; Calk v. Chiles, 9 Dana City Ry., 18 id. 233 ; Watkins v. (Ky.), 265 ; Worstell v. Ward, 1 Bush, 122 ATTACHMENT AFFIDAVIT. [§ 158. § 158. Michigan rule. — There was a case in Michigan which grew out of an attachment suit in a federal court, in which the defendants had been personally cited, so that there un- questionably was jurisdiction over them in the personal action ; but the affidavit being fatally defective because the creditor did not swear that the debt was due as required by the statute of Michigan — the federal court sitting in that state — there was no authority for issuing the writ to attach property be- fore judgment. The marshal having levied upon property in the lawful possession of third persons holding under chattel mortgage, they sued him in the state court for trespass, and there he offered to prove that the property belonged to the attachment debtor, and sought to shield himself under the writ. Ruled against as to that evidence and failing in that defense, he took the case to the supreme court of Michigan, where it was held that the statutory requirement of the affi- davit was jurisdictional and that the writ was without validity because the debt had not been sworn to be due, and therefore the marshal was a trespasser for levying under it. The court added : " The llrst step in this jurisdiction is to show not a writ merely but a valid writ ; and there can be no valid writ of attachment without a sufficient affidavit. The marshal understood this and endeavored to satisfy the rule by produc- 198 ; Burnam v. Romans. 3 id. 191 ; cake v. Harris, 10 S. & R. 109 ; Deu- Kennedy v. Dillon, 1 A. K Marshall, pree v. Eisenach, 9 Ga. 598 ; Coward 354; McReynolds v. Neal, 8 Hum- v. Dillinger, 5G Md. 59; Bowen v. phreys (Tenu.), 12 ; Maples v. Tunis, Slocum, 17 Wis. 181 ; Whitney v. 11 id. 108; McCulloch v. Foster, 4 Brunett, 15 id. 61; Marx u Abram- Yerger, 162; Conrad v. McGee, 9 id. son, 53 Tex. 264 ; Messner v. Hutchins, 428 ; Williams V. Glasgow, 1 Nev. 533 ; 17 id. 597 ; McNamara v. Ellis, 14 Ind. Hargadine v. Van Horn, 72 Mo. 370 ; 516 ; Mantz v. Hendly, 2 Hening & Sanders v. Canett, 38 Ala. 51 ; Green- Munford (Va.), 308 ; O'Farrell v. way V. Mead, 26 N. J. L. 303 ; Merrill Heard, 22 Minn. 189 ;, Borland v. V. Montgomery, 25 Mich. 73 ; Bards- Kingsbury, 65 Mich. 59, ovemding ley V. Hines, 33 Iowa, 157 ; Schell v. Hill v. Moore, 40 id. 210 ; Robiu- Leland, 45 Mo. 289 ; Estbrook v. Est- son. Ex parte, 21 Wend. 672 ; Haynes, brook, 64 Barb. 421 ; Waffle v. Goble, Ex parte, 18 id. 611 ; Bliss, In re, 7 53 id. 517 ; Spiers v. Halstead, 71 N. C. Hill, 187 ; Faulkner, In re, 4 id. 598 ; 209; Clay pole V. Houston, 12 Kansas, Burnett v. McCluey, 78 Mo. 676. 324; Riley v. Nichols, 1 Heisk. 16; Compare Sloan n Mitchell, 84 Mo. Bruley v. Seaman, 30 Cal. 610 ; Clark 546 ; Barelli v. Wagner (Tex. Civ. V. Roberts, 1 111. 222 ; Redwood v. App.), 27 S. W. 16. Consequa, 2 Browne (Pa.), 78 ; Pan- § 159.] AFFIDAVIT JUEISDICTIONAL. 123 ing a certified copy of the affidavit. Unfortunately the evi- dence defeated the justification instead of supporting it." ^ § 159. The statute of Michigan on attachment prescribes : " Before any writ of attachment shall be executed, the plaint- ifif, or some person in his behalf, shall make and annex thereto an aflBdavit stating that the defendant therein is indebted to the plaintiff, and specifying the amount of such indebtedness as nearly as may be over and above all legal set-offs, and that the same is due upon contract, express or implied, or upon judgment, etc." - The clause requiring oath to the maturity of the debt had been construed b}^ the supreme court of Michigan before the case now under consideration came before them ; and it had been held that stating the defendant to be indebted is not equivalent to an allegation that the debt is due ;^ that the debt must be shown to be due;^ that there must be a present cause of action existing at the time of filing the affidavit ; ^ that the affidavit must aver the demand to be due upon con- tract, etc.,^ and that the affidavit is necessary to confer juris- diction.^ An attachment is not assailable collaterally because the affidavit is insufficient.® But if the aflidavit is void the rule is otherwise. The case of Matthews v. Densmore, above discussed, was reversed by the United States supreme court, but not on the ground that an oath to the maturity of the debt was not juris- dictional in Michigan ; at least it may be safely assumed that the court did not mean to be understood that federal courts have jurisdiction over attachment except as accorded by stat- utes.^ 1 Matthews v. Densmore, 43 Mich. 5 Galloway v. Holmes, 1 Doug. 461 ; reversed, 109 U. S. 216. (Mich.) 350. 2 Howell's Annotated Statutes, 6 Wilson v. Arnold, 5 Mich. 98. § 7987 ; the same as in the Compiled "^ Id. ; Greenvault v. F, & M. Bank, Laws, § 6398 : though by C. L., § 6433, 2 Doug. (Mich.) 498 : Beach v. Bots- the affidavit being filed with the ford, 1 id. 199; Hale u Chandler, 3 clerk need not be attached to the Mich. 531 ; Watkins v. Wallace, 19 id. writ; and it was not attached to the 57, 74; Le Roy v. East Saginaw City writ under discussion in the case of Railway, 18 id. 233. Matthews V. Densmore, above cited. * Brown v. Guthrie, 39 Hun, 29 ; 2 Cross V. IMcMaken, 17 IMich. 511. Carr v. Van Hoesen, 26 Hun, 316. 4 Wells V. Parker, 26 Mich. 102. 9 Densmore v. Matthews, supra. 124 ATTACHMENT AFFIDAVIT. [§ ICU. § IGO. Strict construction. — The rule of construction is to insist upon a strict compliance with statutes authorizing at- tachments.^ Courts should observe this rule in using their discretionary power, in judging of the sufficiency of affidavits, where discretion is allowed ; they should guard against the granting of writs upon loose and imperfect affidavits.^ Such strictness should not preclude a proper indulgence, within the bounds of their discretion, in considering the sufficiency of affidavits to obtain an attachment. If the affidavit is such as to require the officer to exercise his judgment, he should grant the writ if he believes the law to have been complied with substantially.^ The reasons of the rule of strict construction are found in the harshness of the remedy, and the fact that it is out of the ordinary course of practice.^ For these reasons, and espe- cially because the remedy is statutory, there can be no valid writ of attachment without a sufficient affidavit, as already shown. What is a sufficient one will appear from the govern- ing statute ; but an affidavit may literally follow the statute, yet be bad.'^ For instance, when it is required that the plaintiff shall swear that the attachment is " not to harass the defend- ant," the exact quoted words would be bad if there are two or more defendants." Unnecessary additions to the matter required do not vitiate.^ It has been held that an affidavit may be sufficient to give jurisdiction so as to preclude col- 1 Campbell v. Hall, McCahon, 53 ; pose of, his property with intent to Parker v. Scott, 64 N. C. 118; Van defraud his creditors, it will be suftl- Norman v. Jackson Circuit Judge, cient. Also, Booth v. Rees, 26 111. 45 Mich. 204 ; Lewis v. Kennedy, 3 45 ; Jackson v. Burke, 4 Heisk. 610. G. Greene. 57 ; Warner v. Everett, 7 Strict as to the grounds, but liberal B. Mon. 262. as to the application of the remedy. 2 Skiff r. Stuart, 39 How. (N. Y.) 4 McDaniel r. Gardner, 34 La. Ann. Pr. 885; Lawrence v. Steadman, 49 342; Bussey v. Rothschilds, 26 id. 111. 270. 258 ; Leonard v. Stout, 36 N. J. L. 3 Talcott V. Rosenberg, 8 Abb. Pr. 370. (N. S.) 287. Held that a liberal in- ^ Goodyear Rubber Co. v. Knapp, dulgence may be extended, even 61 Wis. 103 ; Miller v. Munson, 34 id. upon questions involving jurisdic- 579. tiou; and that if the facts legally 6Gunst v. Pelham, 74 Tex. 586; tend to support the allegation that Perrill v. Kauffman, 72 id. 214. the defendant has assigned and dis- ' Tanner, etc. Co. v. Hall, 22 Fla. posed of, or is about to assign or dis- 391. § 100.] AFFIDAVIT JUKISDICTIOiSrAL. 125 lateral attack, though the ground and cause of action be not fully stated.^ In a suit against both an assignor and an as- signee, the affidavit may be good against one and not the other.2 § 160. In the construing of statutes it is not the rule to treat the lans^uage as sacramental, so that it must be em- bodied verhatim in an affidavit in laying the prescribed grounds for an attachment, unless a form is provided.* When the plaintiff is required to swear that the debt he sues upon is due upon express or implied contract, equivalent words are usualy allowable; as that the claim is due — the defendant is now indebted — the defendant is really obligated upon con- tract.* But when the requirement is that the affiant must swear that he is entitled to recover a stated sum over and above all counter-claims known to him, it is not enough to swear that he is "justly entitled to recover said sum;" * but a sworn averment that the debt is due " over and above all discounts and set-offs " meets the requisition.^ 1 Burnett v. McCluney, 92 Mo. 230. id. 503 ; Wallis v. Wallace, 6 How. 2 Nat, Bank v. Stelling, 32 S. C. (Miss.) 254. 102. •» Trowbridge v. Sickler, 42 Wis. 3Parmele v. Johnson, 15 La. 429; 417 (overruling Whitney f. Brunette, Sawyer v. Arnold, 1 La. Ann. 315; 15 Wis. 61, and Bowen v. Slocum, 17 Cross V. McMaken, 17 Mich. 511; id. 181); Oliver v. Town & Watson, Ware v. Todd, 1 Ala. 199 ; Graham v. 28 id. 328 ; Mariet v. Marriner, 34 id. Ruflf. 8 id. 171 ; Wiltse v. Stearns, 13 582 ; Euthe v. Eailroad Co., 37 id. 344 Iowa, 282 ; Mandel v. Peet, 18 Ark. (overruling Blackwood v. Jones, 27 236 ; Kennon v. Evans, 36 Ga. 89 ; Wis. 498) ; Creasser v. Young, 31 Boydn Buckingham, 10 Humphreys, Ohio St. 57; Sleet v. Williams, 21 id. 434; Bank of Alabama v. Berry, 2 82; Ludlow v. Eamsay, 11 W^all. 581. id, 443; Commercial Bank v. Ulman, ^ Ruppert v. Haug, 87 N. Y. 141. 10 Smedes & M. 411; Dandridge u SLampkiu v. Douglass, 27 Hun, Stevens, 12 id. 723; Lee v. Peters, 1 517. CHAPTER Y. THE ATTACHMENT BOND.i I. Protection to the Defendant §§ 161-166 II. Necessary to the Writ 167-169 III. Execution op the Bond 170-174 IV. The Amount 175-177 V. Conditions 178-181 VI. The Principal 182-185 VII. The Surety 186-193 VIII. Amendment 194-198 I. Protection to the Defendant. § 161. In general — The remedy being extraordinary, con- trary to common-lau' procedure, harsh and stringent in its nature, would be manifestly unjust to the debtor were he not protected when it is wrongfully employed. Were the writ issued upon the plaintiff's affidavit alone, upon his ex pai'te statements of the existence and character of the debt and of the grounds upon which the statute authorizes the extraordi- nary process to be issued; were his allegation that ordinary process would be inadequate because the debtor is removing, has removed or is about to remove himself or his property beyond the jurisdiction to defraud creditors, sufficient for the preliminary seizure, before judgment, of the alleged debtor's property ; and were a wronged defendant without protection, great injustice would be done in many cases, and this statu- tory remedy could not be successfully defended. He is not, however, entirely without protection, aside from the bond. He has his action for damages caused by an abuse of the pro- cess, against the attaching plaintiff, though he have no bond to sue upon. His action for malicious attachment is not de- pendent upon a bond. The requirement of an attachment bond is not universal; some of the states authorize the issue of the writ without it. ig§ 1007-1017. §§ 162-lGJ:.] PROTECTION TO DEFENDANT. 127 § 1G2. It has been held that both the dissolution of the at- tachment and the loss of the principal action must unite to make the attachment bond collectible.^ This must depend, however, upon the conditions of the obligation in any state. It is manifest that attachment mav be wrongfullv sued out on false grounds while the cause of action may be perfectly true; and that it unjustly may cause damage to the debtor, while judgment against him for the debt may be rightly ren- dered. It is to relieve the attachment remedy of its possible injus- tice that a bond is required of the creditor for the eventual protection of the debtor in nearly all of the states. The stat- utory redress by suit on the bond is convenient and commend- able. The obligation is thus made a matter of written con- tract, leaving the obligee nothing to prove but its breach and the amount of the damage in case of suit.^ It ordinarily ob- viates the necessity of suing at common law, as the bond is usually sufficient to cover all actual damages. § 163. The defendant is usually made the obligee of the bond.^ It should be to the defendant whose property is at- tached, though there be a co-defendant whose property is not attached.* If the defendant is a firm, the bond should be given to it and not to the members composing it.^ If made to the defendant when the statute requires that it be made to the state, it may be enforced as a " voluntary " or common- law bond.^ The injured party, whether secured by an attachment bond or not ; whether awarded any statutory redress or not, is still entitled to have his wrongs righted in some wa}''. He is enti- tled to have full redress, whether a bond has been given or not ; whether, if given, it is sulficient to cover his injury or not. § 164. Voluntary bond. — The undertaking, though not under statute, may be good as a common-law bond.'' It is so when 1 Hahn v. Seifert, 64 Mich. 647 ; * Branshaw v. Tinsley (Tex.), 33 S. Harbert v. Gormley, 115 Pa. St. 237. W. 184. - Jackson n Smith, 75 Ala. 97 ; 5 Birdsong v. McLaren, 8 Ga. 521. Dyer v. Sharp, 2 Pa. Co. Ct. R 216. 6 McLuckie v. Williams, 68 Md. See McClendon v. Wells, 20 S. C. 514. 263. 3 Rohrbough v. Lepold, 68 Tex. 254. ^ Painter v. Gibson (la.), 55 N. W. 128 ATTACHMENT BOND. [§§ 1G5, IGG. given out of tne state in a court having jurisdiction.^ It must be alleged in the declaration (when an attachment bond, null under the statute but good at common law, is sued upon) that it was proceeded upon as a voluntary or common-law bond.'- § 165. In case of malicious prosecution the damage is often far in excess of the penal sum stipulated in the bond. The suit may be for a small sum ; the statutory bond is usually fixed at double the demand, and in several of the states it is less; but the charge of absconding or fraudulently removing property is so serious that it gives rise to exemplary damages when maliciously made, and such damages may be many times greater than the sum nominated in the bond. Not only in making the charge, but otherwise, the proceeding may be malicious. Under such circumstances the injured defendant may recover on general principles to the extent of the wrong, either under the common ^ or the civil law.* § 16G. Such general remedy would not always prove ade- quate. An irresponsible plaintiff might ruin a defendant in business or reputation ; and if the latter should have recourse only against the wrong-doer, he might be unable to execute any judgment for damages. The utility of the attachment bond is apparent in such a case. The obligation of the plaint- iff to repair any wrong he may do is not thus enhanced, but the defendant has thus the advantage of the security given. He may test the ability and solvenc}^ of the surety, and have the attachment dissolved if the bond prove insufficient. 84 ; Ripley v. Gear, 58 la. .460 ; Gar- Brothers, 54 Iowa, 68 ; Sledge v. Mc- retson v. Reader, 23 id. 22 ; McLuckie Laren, 29 Ga. 64 ; Dall v. Cooper, 9 V. Williams, 68 Md. 262. B. J. Lea, 574 ; Sanders v. Hughes, 2 1 Cnnniugham v. Jacobs, 120 Ind. Brevard, 495 ; Smith v, Eakin, 2 306 {distinguisliing State v. Younts, Sneed, 456 ; Churchill v. Abraham, 89 Ind. 313, and Caffrey v. Dudgeon, 22 111. 455; Donnell v. Jones, 13 Ala. 38 id. 512); Sheppard v. Collins, 12 490; Pettit v. Mercer, 8 B. Mon. 51; la. 570. Compare Harbough v. Al- Bruce v. Coleman, 1 Hand}'-, 515 ; bertson, 102 Ind. 69. To same effect : Roach v. Brannon, 57 Miss. 490 ; "Williams v. Coleman, 49 Mo. 325 ; Smith v. Story, 4 Humph. 169. Barnes v. Webster, 16 id. 258; Tur- ^Burne r. Gardner, 33 La, Ann. 6, ner v. Armstrong, 9 Bradw. 24. Teal v. Lyons, 30 La. Ann., Part I, 2 Booker v. Smith, 38 S. C. 228. 1140; Senecal r. Smith, 9 Rob. (La.) 3 Cochrane v. Quackenbush, 29 418 ; Grant v. Deuel, id. 17. The gen- Minn. 376 ; Nordhaus v. Peterson eral rule of the civil law respecting § 167.] NECESSARY TO THE WRIT. 129 II. J^ECESSARY TO THE WrIT. § 167. Prerequisite. — The requirement of a bond from the plaintiff, with security, as a prerequisite to his obtaining the writ, is now pretty general under the prevalent practice of attaching to create and enforce a lien.^ In some states, even where foreign and domestic attachment are not reofarded as two distinct proceedings, no bond is exacted in an attach- ment suit against a non-resident or a foreign corporation prior to the issuance of the writ.- damages in general is expressed as follows: '"Every act whatever of man, that causes damage to another, obliges him by whose fault it hap- pened to repair it." Civil Code of La., art. 2394. Also, id., arts. 2295, 2296, 2304; Code Napoleon, arts. 1382-6; Droit Civil de Toullier, liv. II, tit. 8, g 284 ; liv. Ill, tit. 4 ; Doraat (Strahan), Part I, Book III, tit. 5, sec. 2, art. 14 ; Duranton, torn. 13, § 729 ; Partida 3, tit 32, 1. 10, 11 ; Pothier on Obligations, §§ 121, 453. 1 Clay V. Leather Co., 79 Ga. 596 ; Bailey v. Leather Co., id. 600 ; Rog- ers V. Birdsall, 72 id. 133 ; Hutche- son V. Ross, 2 A. K. 3Iarshall, 349 ; Cudahy v. Rinehart, 60 Hun, 414; Tiffany v. Lord, 65 N. Y. 310 ; Van Loon V. Lyons, 61 id. 22; Bater. Mc- Dowell, 48 id. 219 ; Kelly v. Archer, id. 68; Davis v. Marsliall, 14 Barb. 96; Totten v. Sale, 72 Ala. 488; Walker v. Ivey, 74 id. 475 ; Graham V. Hughes, 77 id. 570 ; IMobile Ins. Co. V. Teague, 78 id. 147 ; Bradley v. Kroft, 19 Fed. 295 ; Bank of Alabama V. Fitzpatrick, 4 Humph. 311 ; Steven- son V. Robbins, 5 Mo. 18; State v. Chamberlin, 54 id. 338 ; Barkaloo v. Randall, 4 Blackf. 476 ; Boyd v. Boyd, 2 Nott & McC. 125 ; Perminter v. Mc- Daniel, 1 Hill (S. C), 267 ; Louisville R. Co. V. Lake (Ind. App.), 32 N. E. 590 ; Elliott r. Plukart, 6 Pa. Co. Ct. R. 151. 9 2 Marsh u. Steele, 9 Neb. 96; Ohn- stead V. Rivers, id. 234 ; Nebraska Code, g 200; Simon v. Stetter, 25 Kan. 155; Head v. Daniels, 38 id. 1 ; Baird v. Georgia Pac. R. Co. (Miss.), 12 So. 547. In Ohio no bond is required in an attachment suit against a non-resident or foreign cor- poration. In . Delaware, where the two kinds of attachment ai-e distin- guished, a bond or undertaking is re- quired in both (when the defendant does not appear and terminate the attachment proceedings by giving special bail), but not till the creditor is about to receive the proceeds of the attached property from the ap- pointed auditors, when he enters into recognizance with surety to repay in case the debtor appear within a year and a day, etc. Maryland retained this practice till a recent date, and so did some other states. She still allows attachment without bond when the debtor is a non-resident. In Pennsylvania foreign attachment is deemed a matter of right. A bond is there required in domestic attach- ments where fraud is an element of the a]le.2^ed ground. In Alabama it has been held that there should be a bond to secure a non-resident defend- ant who does not appear. Erwin v. Ferguson, 5 Ala. 158; Walker v. Bank of Mobile, 6 id. 452. 130 ATTACHMENT BOND [§'§ IGS, 1G9 § 168. Jurisdictional— The practice is now general, thongh not universal, to require the bond preliminarily with the view to final judgment and privilege upon the property attached. It is, when so required, an essential prerequisite to the writ and a jurisdictional matter.^ If the bond really was filed before the issue of the writ it may be shown that it was so filed, though it has been post- dated by mistake.^ When filed after the writ it is not every- where held wholly inoperative. In some states the attach- ment is not void in consequence but is voidable.'' The issue of the writ without bond, where the latter is required, makes both the plaintiff and the officer liable to the defendant for attachment under such writ."* But there is no such liability Avhere bond is not required to be given till the officer has taken possession.'^ It is not essential that the bond be recited or stated in the writ.*' Where the clerk of court has no power to issue attachment for debt not due (though the judge has), an attachment, with bond, issued by him would be null.'' The exceptional states where the bond is not required leave the injured defendant to his common-law remedy. And those which limit the requirement to special grounds leave to the defendant the same resort in cases of attachment instituted on other grounds. § 169. Damages. — If the defendant is confined to his com- mon-law remedy he cannot recover damages merely because a plaintiff has sued him and has failed in the suit, but the 07ms 1 Louisville R. Co. v. Lake (Ind. But it had been held that such show- App.), 36 N. E. 590 ; Mobile Ins. Co. ing could not be by parol. Summers V. Teague, 78 Ala. 147: Graham v. u Glancey, 3 Blackf. 361. Hughes, 77 id. 590; Wagener v. 3 Camberford t'. Hall, 3 McCord Booker, 31 S. C. 375 ; Baldwin v. (S. C), 345 ; O'Farrell v. Stockton, 19 Ferguson, 35 111. App. 393; Bradley Ohio St. 296. V. Kroft, 19 Fed. 295 ; Bate v. Mc- * Barkaloo v. Randall, 4 Blackf. Dowell, 48 N. Y. 219 ; Lehman v. 476 ; Palmer v. Foley, 71 N. Y. 106 ; Broussard, 45 La. Ann. ; Martin Lexington, etc. R Co. v. Applegatje, V. Thompson, 3 Bibb (Ky.), 252 ; Tyson 8 Dana, 289 ; Sturgis v. Knapp, 33 Vt V. Hamer, 2 How. (Miss.) 669; Ford 186. V. Hurd, 4 S. & Marsh. 683. Compare 5 Kenefick v. Canfield, 88 Va. 122 ; Alexander v. Perdue, 30 Ark. 359. Va. Code, § 2968. 2Snelling v. Bryce, 41 Ga. 513; 6 Ellsworth v. Moore, 5 la. 486. Reed v. Bank of Ky., 5 Blackf. 227, ' Kleiue r. Nie, 88 Ky. 542. § 170.] EXECUTION OF THE BOND. 131 is on the complainant to show that he has been proceeded against, without probable cause and maliciously, to his injury. If sued upon ordinary process illegally and maliciously he would have the same remedy at common law. It is the right of any citizen, and often the right of any other person, to sue in the courts; and the suitor is not necessarily liable in dam- ages when he has made a mistake as to his rio-hts and brought an action upon which he cannot recover. Before he can be mulct in damages for bringing the suit, it must be shown that he brought it maliciously or at least without probable and ap- parently reasonable cause. The presumption of good motives is attributed to him, even though the law and the evidence turn out to be against him ; and therefore, in an action at common law for damages in a suit by ordinary process, the complainant must clearly show wrong motives on the part of the suitor as well as injury resultant. So where there is no statutory re- quirement of an attachment bond ; where the law gives the creditor a right to the extraordinary process upon his affidavit of a debt and grounds such as the law recognizes as the proper basis of such action, the injured defendant's common-law remedy for redress is much like that for a malicious ordinary suit. III. Execution of the Bond. § 170. Form. — The bond must be executed by the plaintiflF, must be in writing, and it must be in substantial compliance with the statute. It should be in the form prescribed by statute, if any is prescribed. It is held better to copy such form than to depart from it to comply with provisions of statute apparently inconsistent with it.^ Such departure, however, would not usually be fatal. Most of the states re- quire a substantial following of the statute without prescrib- ing any particular form of verbiage. It may be modeled after a penal bond.- If, however, it should fail to follow the statute in any matter necessary to the protection of the obligee, the variance would be fatal. 1 Proskey v. West, 8 S. & M. 315 ; 2 Conklin v. Dutcher, 5 How. Pr. Mclntyre v. White, 5 How. (Miss.) 386. 298; Lucky v. Miller, 8 Yerg. 90; Love V. Fairfield, 10 111. 303. 13:2 ATTACHMENT BOXD. [§§ lTl-173. § 171. Matter. — The bond should have the title of the cause affixed — usually at the top^ — and the name of the court.' In the body of the instrument the stipulation is the heart. The amount, conditions, and names of the parties should appear, though the latter may be supplied by the words "plaintiff," "defendant," "surety," as the caption and the signatures would show the parties. If the obligation assumed by the sureties is joint and several, it should be so stated. Whatever it is, the charac- ter of the obligation should be stated. The omissioQ of the surety's name in the body of the bond is not fatal if he has signed.^ § 172. Seal. — It is not a general requirement that the bond should be sealed, but there have been several deliverances on the subject holding the seal essential, and some holding its omission fatal.^ § 173. Executed lefore wliom. — The bond obligation is bind- ing on principal and surety when made, signed, filed and de- livered, whether done befoi-e an officer or not, as a general rule. But if the statute requires that it be executed before a maoistrate or clerk of court it should be done. It has been held fatal not to execute the bond in the clerk's office when the statute designated that place.^ Ordinarily no place is specified : the essential thing is that the defendant be secured against an}^ abuse of the extraordinary remedy; and it mat- ters little where or before whom the undertaking is executed. The clerk of court takes the bond for the defendant. It has been held that he is bound to know that the surety is sufficient,^ He is prohibited from denj^ing that he approved the bond, after his filing it,' whether he indorsed his approval thereon or not; for it is not very material whether he makes such indorsement or not.^ His approval is not final.^ It has 1 Schrimpf I'. McArdle, 13 Tex. 368. Thompson, 49 id. 188. Compare 2 Lawrence v. Yeatman, 3" 111. 15. Churchill v. Fulliam, 8 Iowa, 45. 3 Affeld V. People, 12 Bradw. 502. & Home v. Mitchell, 7 Bush, 131. 4Tiflfany v. Lord, 65 N. Y. 310; 6 id. Van Loon v. Lyons, 61 N. Y. 22; 'Pearson r. Gayle. 11 Ala. 278. Hunter v. Ladd, 2 111. 551; State v. 8 Griffith v. Robinson, 19 Tex. 219. Chamberlain, 54 Mo. 888; State v. ^Blaney v. Findley, 2 Blackf. 338. §§ 174, 175.] AMOUNT. 133 been held that he cannot be compelled to approve by man- damus} § 174. Yerification. — The surety or sureties are sometimes required to justify before a magistrate or the clerk of the court in which the case is entitled. The surety, or each surety if there are more than one, is required to swear or affirm that he is worth the sum specified in the bond (or the sum for which he is made conditionally liable) above all his liabilities, exclusive of property exempt from execution. He is also re- quired to make oath to his residence within the state. Where verification at the time of the execution of the undertaking: is not required, it is yet the right of the defendant to rule the plaintiff and surety or sureties into court to test the ability and solvency of the latter. Sureties verify separately though they may have taken the obligation jointly and severally. The notary, clerk or magis- trate before whom the verification is made attaches his cer- tificate in the usual form of acknowledgment. The bond takes effect upon being filed and dates from that act when not dated on the paper.^ TV. The Amount. § 175. Statutory. — The amount of the bond is fixed by statute, l^o state can reasonably make it less than enough to indemnify the defendant against eventual loss as actual dam- ages. As the plaintiff aims to make seizure of sufficient prop- erty to satisfy his claim and all the costs, he ought to give bond for a sum adequate to cover both the loss and expense of the defendant in case the writ of attachment should be un- lawfully obtained and the plaintiff should fail to obtain judg- ment. In many instances a bond limited to the estimated value of the property to be seized, with the probable costs added, would not render the defendant perfectly secure. In case of the seizure of a thing both imperishable and unpro- ductive, a bond in a sum equal to its value would be more than sufficient. But there must be some rule in everv state. The gauge is found in the amount of the debt sworn to in the mobile Ins. Co. v. Cleveland, 76 2 ciaflin v. Hoover, 20 Mo. App. Ala. 321. 314 131 ATTACHMENT BOND. [§ 176. affidavit. With this criterion, the amount of the bond is vari- ously fixed in different states : double the debt, one-half above the debt, etc. If the claim is for debt and interest, the amount claimed is the gauge, and the interest must be included in fix- ing the sum for the purposes of the bond ; ^ but such is not the case when interest is merely mentioned but not made part of the debt sworn to in the affidavit. Where there is discrep- ancy between the affidavit and the petition or declaration, the amount sworn to in the affidavit should be the standard for fixing the sum in the bond.- In forms of action not setting forth the exact sum sued for, if the affidavit does not indicate the amount, the writ is the gauge for fixing the amount of the attachment bond.' Where a round sum is sued for, as debt and damages, it is understood to include interest, and the bond is based upon it, being twice that sum where doubling is the rule.* § 176. Eclative to the claim. — Though the bond is good if large enough when compared with the sum sworn to in the affidavit, while a larger sum may be claimed in tlie petition or declaration, 3'^et the overplus in the latter would not, in such case, be secured by the attachment lien. But should the bond be less than the sum sworn in the affidavit requires, the attachment could not be maintained. It would not be good to the amount stated and bad as to the balance, but it would be wholly bad, and the proceedings could be set aside on such ground.^ If double be required and given, that is sufficient though there is no recital of the claim in the bond.^ If double be re- 1 McDaniel v. Sappingtou, Hard. 94 ; Young v. Grey, Harper, 38 ; Brown Gallagher v. Cogswell, 11 Fla. 127 ; v. Whiteford, 4 Rich. 327. Brown v. Whiteford, 4 Rich. 327; ^Id. Graham v. Burckhalter, 2 La. Ann. 5 Fleitas v. Cockrem, 101 U. S. 301 ; 415 ; Planters' Bank v. Bryne, 3 id. Hamble v. Owen, 20 Iowa, 70 ; Yale 687. It is held in New York that a v. Cole, 31 La. Ann. 687 ; Marnine deposit cannot be substituted for the v. Murphy, 8 Ind. 272 ; Martin t\ required undertaking. Bate v. Mc- Thompson, 3 Bibb, 252 ; Williams i\ Dowell, 48 N. Y. Super. Ct. 219. Barrow, 3 La. 57 ; Samuel v. Brite, a 2 Pope V. Hunter, 13 La. 306 ; Jack- A. K. Marshall, 317 ; Hamnill v. Phe- son V. Warwick, 17 id. 436; Law- nicie, 9 Iowa, 525. rence v. Featherstou, 10 Smedes & M. 6 strong v. Lake Weir, etc. Ass'n^ 345. 25 Fla. 765 ; Branch u Branch, 6 Fla. 3 Callenderr. Duncan, 2 Bailey, 454; 315. S'ee Tanner f. Hall, 22 id. 403, §§ 177, 17S.] CONDITIONS. 135 quirecl,^ or if treble the amount of a claim not yet due, its omission renders the attachment illegal.- If below the pre- scribed amount the bond is null, though a claim due be the cause of action.^ It is fatal to leave the amount blank.'* Though the bond be sufficient in amount when given, it may become inadequate afterwards; but it has been held that the depreciation of attached corporation stock (not caused bv the attachment) was no ground to support a motion to have the the amount of the attachment bond increased.' Sureties are not liable for such loss.^ § 177. It is needless to say that if a bond is greater than the law requires, no harm can thus result to the defendant, and the instrument would not therefore be invalid ; '' but the statut.e requirement must be strictly observed up to the fixed amount. There is nothing more imperative in the at- tachment laws generally than that the creditor shall giv^e bond and security in the sum which the legislator has decided to be requisite for the indemnification of the defendant in such damages as he may suffer by reason of the attachment. Though the amount be fixed by the court, it will not suffice unless the sum is as great as that required by statute.^ , Y. Conditions. § 178. Defendant. — The condition may be broadly stated to be, in all the states, substantially this : that the obligors will in- demnify the defendant for any damages wrongfully caused and West v. Norfolk, 21 id. 189. Com- See Day v. Bach, 87 N. Y. 57 ; Dun- jxire Work v. Titus, 12 id. 628. ning v. Humphrey, 24 Wend. 31. iGriffis f. Swick, 12 Pa. Co. Ct. R. 'Ranning v. Reeves, 2 Tenn. Ch. 389. 263 ; Bourne v. Hocker, 11 B. Mon- ^ Bradley v. Kroft, 19 Fed. 295. roe, 21 ; Shockley v. Davis, 17 Ga. 3 Lehman v. Broussard, 45 La. Ann. 175; Fellows v. Miller, 8 Blackford, — . See as to construction, Yale v. 231 ; Steamboat Napoleon v. Etter, 6 Cole, 31 La. Ann. 687 ; Bank v. Byrne, Ark. 103. Sid. 687; AVilliams v. Barrow, id. ^ Fjeitas u. Coekrem, 101 U. S. 301 ; 57; Graham V. Burckhalter, 2 id. 415. Graham v. Burckhalter, 2 La. Ann. ■* Louisville, etc. R. Co. r. Lake(Ind. 415. In Louisiana tiie bond must be App.) 32 N. E. 590. one-half above the amount claimed. 5 Miller v. Ferrj-, 50 Hun, 256. Above cases, and Williams v. Bar- •^ Id. ; McBride r. Bank, 7 Abb. Pr, row, 3 La. 57 ; Jackson v. Warwick, 317 ; Groat v. Gillispie, 25 Wend. 383- 17 id. 436. 136 attachme:-it bond. [§§ IVO, ISO. by the attachment. There are different forms of expressin*^ it, and shades of difference in the obligations required by the various statutes. It is frequently added : " not exceeding the sum specified in the bond. ' Several statutes fix the tninimum of the undertaking. Most of them fix the amount of the bond in relation to the sum claimed in the declaration, as already shown. Costs are mentioned in several statutes, as well as damages, but the plaintiff would be liable for them when cast in his suit, and they would be a part of the damages for ob- taining the writ wrongfully, if not thus expressed. § 179. Others. — As a rule the bond is confined to the secur- ing of the defendant ; and when so, only he can sue upon it.^ Some statutes do not limit the obligation to indemnify the defendant but extend it " to any others interested in the pro- ceedings," including garnishees, and third persons whose prop- erty has been attached as that of the defendant. But it is held that suit for damages must be for the use of the attach- ment defendant, even under such provisions.^ If the bond is executed to several defendants, all may sue upon the bond though only one had his property attached.^ It is quite com- mon to execute a bond to several defendants or to a firra.^ It should show whose property is to be attached.^ It is held that attachment bonds are assignable.^ § 180. There is a difference between the condition that the plaintiff shall prosecute his suit to effect and pay all damages, etc., and that he shall prosecute his proceeding in attachment to effect, etc. Under the former an attaching creditor was held liable though his attachment was not contested;'' and under the latter it was said that the creditor might be liable though the plaintiff gained his personal suit.^ In South Caro- lina the condition embraces both contingencies : If the defend- 1 Steinhardt v. Lemau, 41 La. Anu. Boyd v. Martin, 10 Ala. 700. Com- 835 ; Faulkuer v. Brigel, 101 Ind. 329 ; pare Alexander v. Jacoby, 23 Oliio Weir V. Dustin, 32 III. App. 388 ; St. 358. Mason v. Rice, 66 la. 174 ; Mitchell ^Voorhies v. Eitong (Ky.), 22 S. W. V. Chancellor, 14 W. Va. 22. 80. 2 Mitchell V. Chandler, 14 W. Va. ^Hann v. Ruse, 85 La. Ann. 725. 22 ; Davis v. Commonwealth, 13 ^ State v. Heckert, 49 Mo. App. 280. Gratt. 139 ; Edwards v. Turner, 6 "^ State v. Beldsmeyer, 56 Mo. 226. Rob. (La.) 382. 8 Harper v. Keyes, 43 Ind. 220. 3 Sloan V. Langert, 6 Wash. 26; S> 181, 182.1 PKiNciPAL. 137 CO I -I ant recover judgment, or if the attachment be set aside, etc., tlie plaintiff will pay all costs and damages, etc. The suit must be decided against the plaintiff before the defendant can sue on a bond conditioned that the principal shall prosecute his action with effect.^ § 181. The pleader should substantially follow the statute in stating the conditions of the bond, preferring any pre- scribed form therein to directions in other parts of the stat- ute where there is incongruity.^ He should insert what is necessary to identify the bond with the suit.'' Anything that would surely mislead the defendant with regard to the suit, the court, the return day, etc., would render the bond vicious. Sli£:ht mistakes which cannot thus mislead would not render the bond fatally defective with respect to the particulars just specified or any others. If there is strict compliance with the statute in essentials, and a substantial compliance in non- essentials, the attachment ought not to be quashed. Even if the mistake be somewhat important, there should be liberality in the allowance of amendment, where the court has discre- tion. But the conditions required must be explicitl}' set forth in the bond.* YI. The Peincipal. §182. Signing. — The bond is made and signed by the at- taching creditor as the principal obligor. A disinterested per- son could not become the principal within the intendment of iHarbert v. Gormley, 115 Pa. St. ner t". Brown, 10 La. Ana. 334; Bene- 237. Compare Steen v. Ross, 23 Fla. diet v. Bray, 2 Cal. 25 ; Planters' & 480. Merchants' Bank v. Andrews, 8 Por- 2McCook V. Willis, 28 La. Ann. ter, 404. fi'ee Houston v. Belcher, 12 448 ; United States v. Brown, Gilpin. Smedes & M. 514 ; Lowry v. Stowe, 155; Love v. Fairfield, 10 111. 303; 7 Porter, 483. Mclntyre v. White, 5 How. (Miss.) ^ Benedict v. Bray, 2 Cal. 251 ; Starr 298 ; Lucky v. Miller, 8 Yerger, 90 ; v. Lyon, 5 Ct. 538 ; Thompson v. Amos V. Allnut, 2 Smedes & M. 215 ; Arthur, Dudley, 253 ; Cousins v. Proskey v. West, 8 id. 711; United Brashier, 1 Blackf. 85; Ford v. States V. Morgan, 3 Wash. C. C. 10 ; Woodward, 10 Miss. 260 ; Stevenson United States v. Gordon, 7 Cr. 287. v. Robbins, 5 Mo. 18 ; Homan v. 3 Jaycox u Chapman, 10 Ben. 517 ; Brinkerhofif, 1 Den, 181; Davis v. Schrimpf v. McArdle, 13 Tex. 368 ; Marshall, 14 Barb. 96 ; Bank of Ala- Morgan V. Morgan, 4 Gill & Johns, bama v. Fitzpatrick, 4 Humph. 311 ; 395 ; Briggs v. Smith, 13 Tex. 269 : Briggs v. Smith, 13 Tex. 209 ; Jones Laurence v. Yeatman, 3 III. 15 ; Bon- v. Anderson, 7 Leigh, 308. 138 ATTACHMENT BOND. [§ 183. the law; certainly the courts cannot issue attachments unless the creditor himself is the obligor, where the statute requires him to become such.^ A county, as attaching creditor, may give bond and security.- It is not imperative that the plaintiff or the person inter- ested should actually sign the bond, but it may be done by an agent duly authorized, when the principal cannot do so for any good reason, as in the case of the making of the affidavit. In such case the agent signs for the plaintiff as his attorney for doing so; the act is deemed that of the plaintiff; the latter is fully bound to the defendant, and the requirement of the law is obeyed.^ If the suit is by a firm, one of the firm may sign the partnership name ; and should he sign only his own, but appear as the representative of the firm and have author- ity to obligate the partnership, it would be sufficient.* All the names of a plaintiff firm should be inserted once in the bond, but they need not be repeated.^ It is not a compliance with the law if a member of a plaintiff firm obligates only himself; ^ for, though such bond would hold good against him, the attachment ought to be dissolved upon application, for the reason that the interested firm is not bound, and the defend- ant is not secured as he is entitled to be. § 183. Not only a member of a firm representing himself and his partners, but any agent representing his principal, should sign in the capacity in which he appears. It must be such a signing as to bind the principal ; not such as merely to hold the person making the signature. Such obligation satis- fies the law, especiall}^ where it is provided that the signing may be done by an agent or attorney of the plaintiff.^ 1 Jones V. Anderson, 7 Leigh (Va.), ^ Munzenheimer v. Manhattan, etc. 308 ; Ford v. Hurd, 12 Miss. 683 ; Co., 79 Tex. 318. Myers u. Lewis, 1 McMullen (S. C), 6 st^vvart v. Katz, 30 Md. 334; 54; Mantz v. Hendley, 2 Hening & Gable r. Brooks, 48 id. 108; Jones v. Munford, 308. Anderson, 7 Leigh, 308. 2 State V. Fontinberry, 54 Miss. 316. 'Frost v. Cook, 8 Miss. 357; Page 3 Frost V. Cook, 8 Miss. 357 ; Taylor v. Ford, 10 id. 266 : Ford v. Hurd, 12 V. Richards, 9 Ark. 378. id. 683 ; Dillon v. Watkins, 2 Speers, * Churchell v. FuUiam, 8 Iowa, 45 ; 445 ; McCandish v. Hopkins, 6 Call, Wallis V. Wallace, 6 How. (7 Miss.) 208 ; Conklin v. Goldsmith, 5 Fla. 254; Cunningham v. Lamar, 51 Ga. 280; Simpson v. Knight, 12 id." 144; 574; Kyle v. Connelly, 3 Leigh, 719. Martin v. Dortch, 1 Stew. 479; Stew- art V. Katz. 30 Md. 334. § 184.] PRINCIPAL. 139 The true rule is that the bond must be signed and executed so as to bind the plaintiff or the party interested in suing out the attachment; and whether the assent's sio^nature is suffi- cient for that purpose may appear, so as to give validity to the bond, without his formal statement of his real capacity — provided that such capacity is, in some way, apparent beyond controversy so as to enable the defendant to sue the plaintiff upon the bond, should suit become necessary. Should the bond show that the plaintiff is bound it would be good, though there might be nothing in the signature to show that the agent signed in any other than his personal capacity.^ If the principal has not signed at all, either personally or by an agent, so that the place for his name is left blank on the in- strument, he may yet be sued with his sureties, as though he had signed ; for he is a proper party to a suit on such bond for damages for wrongful attachment.^ Both he and they may be sued together.* It has been repeatedly held that the bond may be good though the principal did not sign it.* § ISi. Foiver of attorney. — The requisite showing in the bond or the signature thereto is not such as to make the pro- duction of a power of attorney necessary. Doubtless, in the absence of the plaintiff, the court might require the professed agent to produce his authority before granting the writ, but it is not usual to do so. The fact of the suit being prosecuted by the plaintiff' upon the bond and affidavit filed shows that he has assented to them and is acting as if bound by them. This creates a presumption in favor of their authorization when questioned so far as the relation of the plaintiff to the ostensible agent is concerned.^ But the court ought to re- 1 Walbridge v. Spalding, 1 Doug. * Black Hills, etc. v. Gardiner (S. D.), (Mich.) 451; Page v. Ford, 10 Miss. 58 N. W. 557; Comp. Laws, § 4996; 266; Work v. Titus, 13 Fla. 628; Howard t;. Manderfield, 31 Minn. 341 ; Clanton v. Laird, 20 Miss. 568 ; Mur- Pierse v. Miles, 5 Mont. 551 ; Lefifing- ray v. Cone, 8 Port 250 ; Frost v. well v. Chave, 19 How. Pr. 57. Com- Cook, 7 How. (8 Miss.) 357; Grand pare Bank v. Sterling (S. C), 9 S. E. Gulf R E. & B. C. Co. V. Conger, 9 1028. Smedes & M. 505. 5 Jacobs v. Hogan, 85 N. Y. 243 ; 2 Hoskins v. White (Mont.), 33 P. Jackson v. Stanley, 2 Ala. 336 ; Pierce 163. V. Strickland, 2 Story, 292 ; Lindner 3Id. ; Mcintosh v. Hurst, 6 Mont v. Aaron, 5 How. (Miss.) 581; Taylor 287; Pierse v. Miles, 5 id. 549; Jen- v. SuLt 6 La. Ann. 709; Wood v. nings I'. Joiner, 1 Cold. 645. Squiers, 28 Mo. 528 ; Mason v. Setw- 140 ATTACHMENT BOND. [§ 185. quire that the bond be complete in itself before issuing the writ ; and the defendant, in case he should have to sue upon the bond, ought not to be subjected to the necessity of pro- ducing other evidence that the plaintiff is bound by it. § 185. Bi/ attorney at law. — ^ Where the bond may be signed for the plaintiff by his attorney, it is not uncommon that his attorney at law represents him, signing only in his professional capacity.^ But one who is licensed as attorney to represent, in a professional way, all who employ him, is not thus author- ized to bind his client beyond the scope of his employment Though engaged to institute and prosecute an attachment suit, he is not therefore empowered to bind his client by sign- ing an attachment bond for him. It cannot truly be said that the execution by him of such a bond is an incident of his em- ployment. Though it has been judicially said that the sign- ing of the bond by an attorney at law is an act of administra- tion—that it is indispensable to secure the rights of the client — that the attorney at law of the plaintiff is his manda- tary for the purpose of collecting the debt by process of law — that the signing of the bond is a necessary incident to the collection — and that it is embraced in the general power given by the client to his attorney at law,^ yet it must be de- nied that a bond thus executed would bind the client, should he not ratify it by proceeding with the litigation thereunder. The court might accept such a bond on the presumption that a licensed attorney acted within his authority when signing ostensibly for his principal; but in case of a suit upon the bond, the client could not be' held if there should be no other evidence of authoritj'- on the part of the attorney than his employment as the lawyer of a client who had repudiated his act of signing before an}?" proceeding thereon. Certainly the lawyer should have power conferred, beyond that given by his license and his engagement as attorney in the cause, though art, 6 La. Ann. 736; Goddard v. Cun- 597; Wright v. Smith, 19 id. 297; niugham, 6 Iowa, 400 ; Brooks v. Messner v. Lewis, 20 id. 221. Poirier, 10 La. Ann. 512; Spear v. i Foulks u. Falls, 91 Ind. 315, 321; King, 14 Miss. (6 Sniedes & M.) 276 ; Trowbridge v. Weir, 6 La. Ann. 706. Narraguagus v. Wentworth, 36 Me. - Wetmore i\ Baffin, 5 La. Ann. 339 ; Alf ord v. Johnson, 9 Porter, 496 ; Schoregge v. Gordon, 29 Minn. 320 {see Williams v. Reed, 3 Mason, 387. 405); Messner v. Hutchins, 17 Tex. § 1S6.] SUKETY. 141 the power need not be evidenced by any written instrument. If ruled into court to show the authority under which he acted in signing- the bond for his client, the attorney at law could not make an adequate showing by merely producing his license and proving his engagement as the plaintiff's lawyer in the case. Though the attachment proceedings might not be quashed for want of the proper showing upon such a rule, after some progress in the suit had been made under a bond thus executed,^ it is because the plaintiff, by thus going on, is understood to have assented to the attorney's action and to have become bound thereby. Even were they quashed on this ground after some progress, at the instance of the defend- ant, the plaintiff would be held obligated by such a bond on account of his acquiescence during such progress.^ And this reasoning applies to bonds executed by other attorneys than those at law, who sign without being previousl}^ authorized by their assumed principals, in some way, but whose action is subsequently ratified expressly or impliedly. YII. The Sueety. § 186. Signature. — The surety must sign w^ith the principal, obligating himself to pay if the plaintiff does not. He must be a resident of the state, in solvent circumstances, able to meet his obligation. He should sign personally. If he sign through an agent, the authority of the latter should be made to appear ; for the surety, not being a party to the suit, could not be said to ac- quiesce in the action of the agent by reason of the progress of the cause — he not being presumed to have known of such progress or even of the execution of the bond. An agent who has signed for the principal should not also sign for the surety.* If the plaintiff's attorneys sign the bond as sureties for him, the bond is not void, though their signing be contrary to a rule of court.^ 1 Mandel v. Peet, 18 Ark. 236 ; Dove 2 Messner v. Lewis, 20 Tex. 221 ; V. Martin, 23 Miss. 588; Bank of Au- Peiser v. Cushman, 13 id. 390. gusta V. Conrey, 28 id. 667 ; Peiser v. » Marshall v. Revisies, 22 Fla. 583. Cushman, 13 Tex. 390. ^ Rogers v. Burbridge (Tex. App.), 24 S. V/. 300. 1-12 ATTACHMENT BOND. [§§.187,188. § 187. Signing firm name. — If he who signs as surety the name of his firm does not produce authority so to do, he docs not bind the firm unless the articles of partnership go beyond the usual contract and empower the members of it (or at least the member so signing) to obligate the firm in this way, ex- cept on presumption of authority. He would bind himself, but not necessarily the partnership to which he belongs.^ If he is competent to sign, so far as residence, solvency, pecun- iary ability, proper age, etc., are concerned, the bond would be good; and the defendant could not successfully attack it on the ground that the surety had not signed his own name but that of his firm. The firm style includes his own name. In seeking to bind all he binds himself. And, should the defendant not complain, the surety himself cannot, for he must stand by his own act.^ Between himself and his part- ners, however, all the members would be bound for their equal portion, should he have to pay, if he signed with their knowledge or subsequent acquiescence. It is not uncommon for principals and sureties to sign firm designations to bonds instead of the names of the members of the partnership, and it is usually allowed without objection from the courts or the defendants;^ but, as remarked, this binds only the person signing, unless the firm has given him authority. But it has been held that his authority may be presumed.* § 188. Qualifications and nuniher of sureties. — Solvency, residence within the state, lawful age, etc., are presumed till the contrary is made to appear. Such facts need not be stated in the bond, though the statute may expressly require such qualifications in a surety. If the statute requires sureties, more than one should be given provided no other construc- tion of the meaning is permissible ; but, the object of the legislature being to secure the defendant and ultimately in- iGray v. Steedraan, 63 Tex. 95; s Raymond v. Green, 13 Neb. 315; Jeffreys v. Coleman, 30 Fla. 536. Danforth v. Carpenter, 1 Iowa, 546 ; These cases show that the signor Churchill v. Fulliam, 8 id. 45. See would be bound, and usually the Bennett v. Zabriski, 3 New Mex. 176. other members whom he assumes to ■* Donnelly v. Elser, 69 Tex. 383 ; represent. Cunningham v. Lamar, 51 Ga. 574. 2 Thatcher v. Goff, 13 La. 360. § 189.] SUKETY. 143 clemnify hira against loss,^ one good surety will be sufficient, notwithstanding the words of the statute, in those states where singular and plural numbers are legally interchangeable for the purpose of statute construction.' And where the courts are not expressly accorded this latitude of construction, one surety may suffice unless it is clearly the meaning of the statute that there should be more for the better protection of the defendant. But if two sureties be required literally, and only one be given, the omission is fatal.* When bond and surety for double the amount of the claim is requisite, there may be two sureties, each separately obligating himself for the amount of the claim; that is, each taking half of the required obligation — in Florida.* If there is but one name signed to an attachment bond, it will be deemed that of the surety when the body of the bond and the pleadings of the case disclose another as that of the plaintiff; and the bond will not be fatally defective because the attaching plaintiff has not signed it, since he is under ob- ligation as principal whether he signs or not.^ The omission of the surety's name in the body of the bond is not fatal ; his signature would bind him notwithstanding such omission.^ § 189. Obligation. — When the surety binds himself to "pay all costs that may be adjudged to the defendant and all dam- ages which he may sustain by reason of the attachment," he may be held for the defendant's disbursements duly allowed^ He cannot be held for a greater sum than that specified in the bond ; and, if his principal has paid part of that, the surety 1 Adams v. Jacoway, 34 Ark. 542. (Tex. App.), 22 S. W. 225. If there ^ Elliot V. Stevens, 10 Iowa, 418 ; are two names, and two sureties are Bryant V. Hendee, 40 Mich. 543. required, both may be sureties. How- 3 Spettigue v. Hutton, 9 Pa. Co. Ct. ard v. Mandefield, 31 Minn. 337. The R. 156. names of sureties need not be in the * May V. Gamble, 14 Fla, 467. body of the bond. San Roman v. 5 Bait. & O. R. R. Co. v. Taylor, 81 Watson, 54 Tex. 258. Ind. 24 ; Eckman v. Hammond, 27 ^ ^JcLain v, Simiugton, 37 Ohio St. Neb. 611; Whitman, etc. Ass'n v. 484, explaining Stephens u Allmen, National, etc. Ass'n, 45 Mo. App. 90. 19 id. 485. His name could be inserted by way "^ Under § 144 of the Oregon Civil of amendment, if necessary. Athan- Code it was held that the surety was issen v. Towing & Wrecking Co. obligated for such disbursements (Ga.), 17 S. E. 951. If three names though not all incurred by the de- are signed, the latter two will be pre- fendant in the attachment suit. Bing sumed sureties. Weis v. Chipman Gee v. Ah Jim, 7 Saw, C. C. 117. 144 ATTACHMENT BOND. [§ 190. remains liable only for the balance.^ And the whole amounfc can be collected only in case of total loss. The measure of damage is the pecuniary loss caused the defendant by deprival of the use of his property, by an injury done* to it, by any waste, etc., and also by the expense of defending it.^ Sureties have been held answerable for the costs and disbursements of the obligee, not only in his defense against a wrongful attach- ment, but also in his prosecution of an action on the bond for damages.^ § 100. The obligors, when sued, cannot plead that the bond was filed after the writ,^ or that a part of the condition was omitted.^ They are not liable beyond the penalty of the bond.''* The plaintiff in the suit may be liable for much more, but not as principal on the bond in a bond suit. The obligors are not released by a judgment in the trial court in favor of the plaintiff, if it be reversed on appeal and rendered against him.^ The sureties may be liable though the bond be defective as between the parties to the suit.^ And they may be liable though the attachment Avas illegally issued.^ The condition of the bond is that the plaintiff and sureties will pay damages caused if the order of attachment was illegally obtained, in several states. But w^here bond is not required of a state as attaching creditor, it was held that, though such bond was given, the sureties were not liable thereon.'" So when bond w^as not required of a city.'' In a suit upon an attachment bond the complainant alleged that the principals gave the bond and that the sureties were their co-defendants. The complaint was defective for not averring that the sureties executed the bond as well as the principals.'^ 1 Baere v. Armstrong, 62 How. (N. Hibbs v. Blair. 14 Pa. St. 413 ; State Y.) Pr. 515 (26 Hun, 19). v. Berry, 12 Mo. 376. - Boatwright v. Stewart, 37 Ark. ^ Zechman v. Hank, 85 Wis. 6")6 614. (distingidsJiing Shelvin v. Whelen, 41 3Bing Geeu Ah Jim, 7 Saw. 117. id. 88, and approving Bittingsby r. 4 Sumpter v. Wilson, 1 Ind. 144. Harris, 79 id. 103, and Love v. Rock- 5 Hibbs V. Blair, 14 Pa. Stw 413. well, 1 id. 387) ; Union Mercantile Co. 6 McCullough V. Walton, 11 Ala. v. Chandler (Iowa), 57 N. W. 595. 492 ; Hill v. Rushing, 4 id. 212, lo Renkert v. Elliott, 11 Lea. 235. ' Ball V. Gardner, 21 Wend. 270. " Morgan v. Menzies, 60 Cal. 341. 8 Shepherd v. Collins, 12 Iowa, 570 ; i-' Church v. Campbell (Wash.), 35 P. 381. §§ 191, 192.] SUBETY. 145 The surety, being concerned in the result of the suit, could not be a witness for the plaintiff where interest renders wit- nesses incompetent to testify ; and, where it does not, the fact of being pecuniarily liable in case the attachment should injure the defendant would affect the credibilit}^ of the surety as a witness. In such case, may the plaintiff release him and sub- stitute another surety? With the assent of the defendant he may; and, if no liability has yet occurred, the court may per- mit the exchange, under such circumstances, even without such assent. § 191. Additional security. — May additional securitx'- be given by the plaintiff if the one first given has subsequently become insolvent? The law ogives him his right of action; he has complied with the requirement that good and solvent se- curity should be given ; it is owing to no fault or laches of his that he now finds himself without a firm foundation : why should he not be allowed to offer a new bondsman? Clearly it is the right of the defendant to have the attachment dis- solved because of the insufficiency of the bond, w^henever it shall become insufficient, at any stage of the cause; and there- fore the plaintiff should be accorded the right of maintaining his cause by repairing what has become defective through no fault of his. Of course the case would be altogether different if the bondsman was worthless from the start and the plaintiff has only discovered the fact after the institution of the suit. In such case he must suffer the result. His suit may be dis- solved upon application of the defendant in a legal way, and the plaintiff cannot repair the breach at the expense of his opponent. § 192. Suppose the surety to be sound at first but insolvent subsequently, and the plaintiff should not tender other and better surety; may the defendant (instead of moving to quash, or filing a plea in abatement) take a rule on the plaintiff to make him give a new bondsman? The defendant may not choose to have the proceedings quashed at this stage. The plaintiff may be insolvent as well as the surety; and, if so, what recompense is the defendant to have for the wrong done him in case of an illegal and pecuniarily disastrous attachment? The suit may have been of several months standing; a steam- boat, ship or other valuable property may have been in custody 10 146 ATTACHMENT BOND. [§§ 193, 194. of an officer under the attachment seizure, causing great loss; and now must the defendant be told that his only course is to get rid of the attachment and recover his property without any indemnification for loss? In any state where these questions are not solvable by statute provisions, they should, in justice and reason, be answered so that no wrong can be done to either plaintiff or defendant ; i. e., new bondsmen should be substituted upon application of either party. § 193. The plaintiff must lie on the bed he has made. He cannot substitute one surety for another as a matter of right, nor can the court confer sucji right when the bond was worth- less ah initio hy reason of the insolvency of the surety, unless such power is given to the court by statute. The conferring of such authorit}^ to be exercised in case of the death of the surety, or his removal from the state, or his insolvency, or his likelihood to become insolvent, is found in the statutes of at least one state ; in some others the authority is not so broad.^ Although the subject of the amendment of bonds includes the subject of the bettering of the securit}^ the substitution of a good bondsman for one who has ceased to be sufficient since he was given and accepted rests upon somewhat different grounds than other forms of emendation. The substitution of a sufficient bondsman for an insufficient one cannot be made by the supreme court when the case is there on appeal.^ YIII. Amendment. § 194. Before issue of the ivrit- — Prior to the issuance of the writ there is no reason why the plaintiff may not amend a defective bond. Though the affidavit, bond and petition have been filed, he ought to be allowed by the court to amend any one of these, as a matter of course, when no action has been taken upon his prayer. Should the court refuse to al- low this, he may withdraw his suit and make such amend- ment as he chooses to make, and institute it again. It is the 1 Van Arsdale v. Krum, 9 Mo. 397 : ciency of the bond ; Branch of State the statute extending to any insuffi- Bank v. Morris, 13 Iowa, 136. 2 Durham v. Lisso, 33 La. Ann. 415. § 195.] AMENDMENT. 147 proper course for him to pursue in such a case. It is far bet- ter than to go on and find at a later stage that his proceeding has fatal and incurable defects. And in nothing is it more important than with respect to the bond that he should be clearly within the law. If there are defects with regard to the surety's signature, solvency or competency ; the amount or conditions or form of the bond, or any other matter, the plaintiff ought to make all sure before the issuing of the writ, while it is in his power to discontinue and begin anew, should the court refuse to permit him to make the necessary changes. § 195. After issue of the tvrit. — If the bond is required to be double the claim and has been given only to the amount claimed, it is held in Georgia that the plaintiff cannot reduce his claim to one-half the sum of the bond, after the issue of the writ, and thus validate the attachment.^ The amendment would not operate as though made before the issue. But in Iowa an amendment of the bond, under leave of writ, has been held as though made before the writ.- In some states a defective bond has been replaced by a new one.^ Mere ir- regularities in the bond do not avoid a judgment rendered.* A plaintiff, finding his attachment bond invalid, moved to amend it. The defendant opposed the naotion, and the attach- ment was dismissed, and judgment rendered for the defend- ant. Equity would not enforce liability on such ground.^ In 'New York attachment bonds have been filed nunc pro tunc in several instances.^ To give them effect, however, the filing should be on motion of the plaintiff. Any amendment after the issue of the writ should be by his instigation or con- sent, and also the consent of the surety; and the record should 1 Lockett V. Newfoille, 55 Ga. 453. National, etc. Ass'n, 45 Mo. App. 90; See Bodet v. Nibourel, 25 La. Ann. McDonald v. Fist, 53 Mo. 343 ; Jas- 499. per Co. v. Chenault, 38 id. 357 ; Jack- 2 Branch Bank v. Morris, 13 Iowa, son v. Stanley, 2 Ala. 326. 136. See Potter v. Baker, 4 Paige « Kramer v. Willendorff, 129 Pa. (N. Y.), 290. St. 547. 3 Adams v. Kellogg, 63 Mich. 105 ; 5 Booker v. Smith, 38 S. C. 228. Kidd V. Dougherty, 59 id. 240 ; Bry- ^ Leffingwell v. Chave, 15 How. Pr ant V. Hendee, 40 id. 543; Hills v. 54; Mills v. Thursby, 11 id. 129 Moore, id. 210 ; Torrent v. Booming Croghan v. Livingston, 17 N. Y. 218 Co., 21 id. 157 ; McClintock v. Laig, Milbank v. Broadway Bank, 3 Abb. 19 id. 305 ; Whitman, etc. Ass'n v. (N. S.) 223. 148 ATTACHMENT BOND. [§ 196. show such consent.^ It is usually a favor to the plaintiff to be allowed to amend, or substitute a new bond. It has been held that he should be allowed to do so before the attachment can be dissolved for a defective bond.^ §196. When other interests than the plaintiff's have inter- vened, the plaintiff cannot change his bond as a matter of right. The defendant is entitled to a good bond, but his right to dissolve the attachment because such has not been tend- ered is not to be defeated by an order of court permitting the plaintiff to amend.^ Where the court has authority to make such order upon application of the plaintiff, there must have been statutory creation of the jDower;* and though such power has been conferred, it is far better that the attaching creditor be in a situation not to invoke it, since there is al- ways a question whether the court will feel obliged to exer- cise such authority in any given case. It is not safe for him to risk a defective bond, though it be such as to hold in case the defendant takes no proceedings to quash after first giving him opportunity to make the bond good.* 1 Shaw V. Lawrence, 14 How. Pr. 483 ; Jackson v. Stanley, 3 Ala. 336 ; 94 ; Wilson v. Allen, 3 id. 369. Conklin v. Harris, 5 id. 313. See - Henderson v. Drace, 30 Mo. 358 ; Tyson v. Lansing, 10 La. 444. Irvin V. Howard, 37 Ga. 18. ^ Erwin v. Ferguson, 5 Ala. 158 ; 3 East, etc. Co. v. Warren, 78 Tex. Benedict v. Bray, 3 Cal. 351 ; Lea v. 318. In Missouri the suit is not d is- Vail, 3 111.(3 Scam.) 473; Wood v. missed because the bond is insuffi- Squiers, 38 Mo. 538 ; Beardslee v. cient, until opportunity has been Morgan, 39 id. 471 ; Henderson v. given to tile another. Curnmings v. Drace, 30 id. 358 ; Starr v. Lyon, 5 Denny, 6 Mo. App. 603. Otherwise Ct. 538 ; Planters' & Merchants' Bank in Florida, Roulhac v. Rigby, 7 Fla. v. Andrews, 8 Porter (Ala.), 404 ; 336. Lowe v. Derrick, 9 id. 415 ; Scott v. 4Proskey v. West, 16 Miss. (8 S. &. Macy, 3 Ala. 350; Oliver?;. Wilson, 39 M.) 711 ; Van Arsdale v. Krum,9 Mo. Ga. 643; Irwin v. Howard, 37 id. 18; 397 ; Jasper County v. Chenault, 38 Tevis v. Hughes, 10 Mo. 380. id. 357; Lowry v. Stone, 7 Porter, CHAPTER YI. PROCESS. I. The Summons §§ 197-203 II. The Writ 204-207 III. Issuance of the Writ 208-211 IV. Eequisites of the Writ 212-219 V. Amendment 220-226 VI. The Writ as to Property 227-231 VII. The Writ Protecting the Officer 232-236 VIII. Indemnity Bond 237-245 I. The Summons. § 197. Ordinary form. — The summons issued to the de- fendant in an attachment suit differs in no respect from that issued in a suit to recover debt in which there is no writ of attachment issued. It will therefore be unnecessary to dwell long on the subject. When the defendant is reached, being either personally served or served by the leaving of the sum- mons at his domicile with one legally competent to receive it for him, the personal suit against him is fully instituted, and may be prosecuted to judgment for the full amount claimed in the petition. A statute providing that " at or after the commencement of the action " the writ of attachment may be issued, it was held that the filing of the petition and issuance of summons was commencement} And when a cop}^ of the writ of attachment is served upon him (or left as before stated with regard to the summons), and property of his is attached, the attachment suit is fully brought and may be prosecuted to judgment with judicial recognition of the lien or privilege created by the attachment. § 198. Acceptance of service by the defendant would obvi- ate the necessity of a summons; so would his voluntary gen- eral appearance in the absence of citation ; but the writ of attachment and its execution by the seizure of property is no 1 Cofifman v. Brandhoefer, 33 Neb. 279. 150 TROCESS. [§ 199. substitute for summons. It is not such either with reference to the personal or to tlie property action. However, the writ might answer as a summons if served on the defendant, even though defective as a writ.^ On the other hand, the summons may supply a defect of the writ in some respects. When the latter was not in the name of the commonwealth as required, it was yet sustained because the summons, on the obverse side, was in that name, and the previous practice had been to issue the writ in this form.^ In Pennsylvania it has been held that foreign attachment is mesne process, " equivalent to a summons for the commencement of a personal action." ^ §199. Personal service. — The statutes are uniform" in all the states in the requirement that effort be made to effect personal service upon the party charged as defendant. There is nothing in this different from the practice in personal suits generally, when the personal character of the attachment suit is considered. At this stage the suit is nothing more than a personal one where the statute requires that the summons shall be issued before the writ of attachment.* The summons when served brings the defendant into court, though the levy may not have been made.^ If it has been served in the per- sonal action it need not be repeated in an ancillary attach- ment proceeding to aid the original suit.^ But where the writ is issued with the summons the proceeding already pos- sesses a dual character. In such case the summons has refer- ence to the ancillary suit as well as to the principal. It need not contain any express reference thereto, since the service of the attachment writ conveys all the necessary notice re- garding it to the defendant when it is served upon him. At- tachment may precede summons unless the statute forbids.'' 1 Wasson v. Cone, 86 111. 46 ; Rice Ann, 467 ; Speigelberg v. Sullivan, 1 V. Dale, 45 Ark. 34 ; Weil v. Kittay, New Mex, 575. Summons to appear 40 id, 528. in a given county, without naming - Northern Bank v. Hunt's Heirs the town, was held good. Beseman (Ky.), 19 S, W. 3. V. Weber, 53 Minn. 174, 3 Cornman's Appeal, 90 Pa. St. 254. 5 Sanderson v. Taylor, 64 N. H. 97. ^Kelley v. Stanley, 86 Ky. 240; 6 Bailey z?. Valley Bank, 137 IlL 382 • Civ. Code, § 194; Hall v. Grogan, 78 Rutledge v. Stribling, 26 111. App. 353. Ky. 11, The attachment is void if "Schuster v. Rader, 13 Colo. 329; granted before the summons. Sum- American Bank v. Voisin, 44 Hun, 85 ,* mons should be personal or at the Stoiber u, Thudmm, id. 70. SeeHoag- domicile. Walker v. Barrelli, 32 La, land v. Wilson (Neb,), 60 N, W. 376. §8 200, 201.] SUMMONS. 151 CO ' J § 200. The ancillary suit, however, cannot be said to be in- stituted against the defendant's property so as to be binding upon him, unless the defendant be served or notified by pub- lication after an effort to serve has failed. The necessity of summons is not obviated by filing the writ or recording a de- scription of the property attached.^ If the defendant is not served and it is not shown that he cannot be found, the attach- ment falls.^ Herein this suit differs from a libel suit against a thing irrespective of the owner. In the latter summons is never issued. The reason is there is no personal defendant to be served. The summons in an attachment suit is directed to and re- stricted to the personal debtor or debtors named in the peti- tion as defendant to the action.^ It is not directed to persons holding liens on the attached property or otherwise interested in it. The proceeding does not necessarily affect their rights. §201. Relative to the attachment. — A summons not good in the personal action is not good with respect to the ancil- lary proceeding. A statute of Michigan provides that, in suits commenced by attachment in favor of a resident against any corporation created by another state, if a copy of the at- tachment with an inventory of the property attached shall have been personally served on any officer, member, clerk or agent of such corporation within the state of Michigan, the same proceedings shall be had thereupon and with like effect as in case of attachment against a natural person, which shall have been returned served in like manner upon the defendant.* Commenting upon a case against a foreign corporation which had been proceeded against under this law, the supreme court of the United States remarked that the w^rit seems " to serve a doable purpose — as a command to the oflBcer to attach the property of the corporation, and as a summons to the latter to appear in the suit ; " and added : " Without considering whether authorizing service of a copy of the Avrit of attach- ment as a summons on some of the persons named in the stat- 1 Great "Western Mining Co. v. Tenn. 407. See Bannister v. Carroll, Woodnias, 12 Colo. 46. Compare 43 Kan. 64. Smith V. Yargo, 28 111. App. 594, in 3 Summons to a firm : Gans v. both cases land attached. Beasley (N. D.), 58 N. W, 714. 2 Drysdale v. Biloxi, etc., 67 Miss. * Howell's Stat., §§ 8138, 8143. 534 ; City of Nashville v. Wilson, 88 152 PROCESS. [§ 202. Lite — a member, for instance ... is not a departure from the principle of natural justice mentioned in Lafayette Insurance Co. v. French/ which forbids condemnation with- out citation, it is sufficient to observe that we are of the opin- ion that when service is made within the state upon an agent of a foreign corporation, it is essential, in order to support the jurisdiction of the court to render a personal judgment, that it should appear somewhere in the record . . . that the corporation was engaged in business in the state." In other words, the summons was held not good upon the corporation because not served upon any person authorized by it to rep- resent it.^ Yet previously the court had said that if the at- taching creditors were residents of Michigan, " the jurisdiction of the court, under the Avrit, to dispose of the property at- tached, cannot be doubted, so far as was necessary to satisfy their demand. No question was raised as to the validity of the judgment to that extent. The objection to it was as evi- dence that the amount rendered was an existing obligation or debt against the company. If the court had not acquired jurisdiction over the company, the judgment established noth- ing as to its liability beyond the amount which the proceeds of the property discharged." ^ It is further stated that the company or corporation made no ajipearance. There was no publication notice. The quere is, How could the writ as a summons be good in the ancillary action yet not in the per- sonal or principal suit i^ How can there have been jurisdiction in either? Was not the decree against the property attached " a departure from the jprinciple of natural justice . . . which forhids condemnation without citationf " That the court is not to be understood as deciding that there was jurisdic- tion appears from the fact that " no question was raised as to the validity of the judgment " in the ancillary suit, without appearance, without valid summons and without pulplication. § 202. Notice of time to (qypear. — The summons should in- form the defendant within what time he is required to appear. 1 18 How. 404. a mere clerk. Blanc v. Paymaster, 2 In California the cashier of a etc., 95 Cal. 524 ; Cal. Code Civ. Proc. bank, to be susceptible of service in § 543, attachment to bind the corporation, 3 st. Clair v. Cox, 106 U. S. 350. must be an executive officer and not § 203.] SUMMONS. 153 If it erroneously state less time than the law allows, doubtless there could be no valid default entered for non-appearance within the stated period, and the defendant might lawfully plead at any time before the expiration of the period fixed by law ; but it has been held that such default would not be ab- solutely void ; that a summons erroneous by reason of such limitation is amendable, and like errors curable.^ Where six days were stated when ten was the legal period, and an order of publication was granted because the return showed that the defendant was not found, and the party afterwards personally appeared and sought to set aside the proceeding on account of the illegality of the summons, the court allowed it to be amended nunc pro tunc? It was certainly the right of the defendant to appear within ten days from service, had he been served ; but when he could not be found within reasonable time, and the officer had returned that after diligent search the defendant could not be found, it is difficult to see how the mistake in the summons, could affect the default. When that mistake had been corrected, the defendant stood as though it had never been made. He could yet set aside the default upon other grounds and file his answer. § 203. If the officer make a mistake in his return of the summons ; if, for instance, he should report that he has left the citation at the residence of the defendant when he has really left it at another house, the summons would be worthless if the return could be contradicted. If the fact of the mistake were brought to the knowledge of the court by an amended return, no disastrous consequences would necessarily result; but if the officer should insist upon his report as at first made, so that it could not be corrected by parol evidence, he would be liable for whatever injury he might cause, and the return would not screen the attaching creditor when sued for dam- ages.^ The sheriff may show, under oath, why he failed to serve summons, and give as reasons facts stated to him without 1 Watkins v. Stevens, 3 How. Pr. sell, 9 Dowl. 487 ; Catliu v. Rickets, 28; Clapp v. Graves, 26 N. Y. 418; 91 N. Y. 668. McCoun V. New York, etc. R. R. Co., 2 Gribbon v. Freel, 93 N. Y. 96. 50 id. 176 ; Bradbury v. Van Nos- 3 Buckingham v. Osborne, 44 Ct. trand, 45 Barb. 194; Holmes v. Rus- 133. 154 PROCESS. [§§ 204, 205. oath. Such an affidavit may be sufficient to give jurisdiction to issue an attachment against the defendant as one who has left the state. "When the return of summons has been filed but has not been signed by the sheriff, the court may grant him leave to sign nunc pro tunc} II. The Weit. § 204. Not dependent on failure to find defendant — Under the attachment system now prevailing, the writ commanding the officer to seize property of the debtor is not issued in de- fault of ordinary process; that is, it is not granted because there has been a return of a previously issued summons show- ing that the defendant has not been found, as was formerly the case when the object of attachment was to compel ap- pearance. I^ow the summons and the writ may go out to- gether ; for the present purpose is not only to cite the defend- ant, but also to create immediately a lien upon his property to conserve it for eventual execution. The affidavit having afforded ex parte evidence that ordinary process would be in- adequate and that the conditions exist under which the stat- ute allows the extraordinary ; ^ and the bond having been given to protect the defendant against any abuse of the latter, the next step is the issuance of the order for taking from the defendant any property of his not exempt from execution, and for attaching in the hands of others what may be due him by them, or held for him by them, to the amount of the debt and probable costs. The writ may be granted after verdict in the personal case.^ § 205. Duality. — There is now, from the incipiency of the proceedings, a dual action ;* a movement against the defendant to obtain a personal judgment against him, and a movement iLuttrell V. Martin, 112 N. C. 503; affidavit had not preceded the writ. Williams v. Weaver, 101 id. 1 ; Wal- Howell v. Muskegon Ct. Judge, 88 ters V. Moore, 90 id. 41 ; Henderson Mich. 369. V. Graham, 84 id. 496 ; Clark v. Hel- 3 Davis v. Jenkins, 46 Kan. 19 ; len, 23 id. 421. Speelman v. Chaffee, 5 Colo. 247 ; - When the affidavit and writ were Bayley v. Ward, 37 Cal. 121 ; Lynch presented together to the judge, and v. Crary, 52 N. Y. 181 ; Scheib v. the order issued thereon, the pro- Baldwin, 22 How. Pr. 278. ceedings were held void because the * § 9. §§ 206, 207.] WEiT. 155 against bis property when attached, to obtain a judgment which shall be, in effect, against that: susceptible of being executed against that only if he shall not be summoned and shall not appear though notified by publication ; susceptible of being executed against that or any other property if he shall have been summoned or shall have appeared and shall have had judgment rendered against him with or without privilege upon the property attached, § 206. The issue of a summons is no less essential now than formerly. The difference is that it need not be returned void before the writ of attachment can be issued. Attachment of the body of the debtor for debt having been abolished, it can no longer be said that the attachment of his property is a sub- stitute for that, and that he is brought into court by his prop- erty. Indeed, the custom of London did not go so far as that, though some decisions, rendered even since the abolishment of personal arrest for debt, seem to have been written under the impression that such was the case. True, the purpose was to compel appearance ; but there was no procedure on the assumption that the purpose was effected by the seizure; that is, the debtor was not deemed to be in court because his prop- erty was. This plainly appears from the circumstances that four proclamations, at different times, calling upon him to come into court, must be made before a judgment by default could be rendered ; that the plaintiff was required to give pledges to restore in case the defendant should appear within a year and a day; and that final judgment could not be rendered be- cause the defendant was not in court.^ § 207. The proceedings were not dual under the custom ; they were personal in case the defendant appeared and en- tered bail as in any ordinary action ; they were personal if he did not appear, but they could result only in a judgment by default for non-appearance to be perfected only by the legal prescription of a year and a day. They were, in this respect, rather a procedure by legal distraint for debt than a suit at law in the proper sense of the term. J Locke on For. Att. *3, *3, citing, Case, 1 Wms. Saunds. 67 ; Banks v. to show the custom, 1 Eol. Abr., Cus- Self, 5 Taunt. 334 ; Crosby v. Hether- toras of London, K. 1, 3 and 4 ; Hor- ington, 4 M. & G. 938 ; Magrath v. ton V. Beckman, 6 T. R 760 ; Turbill's Hardy, 5 Bing. N. C. 783. 15G PROCESS. [§ 208. Under the system now generally prevailing in this country the attachment writ should be so issued and so executed as to prove effective in case the suit should prove to be in rem only, so far as concerns its effect. The creditor should be as cautious as though he knew that the debtor would be notified only by publication. He should not depend upon the curing of defects by the appearance and pleading of the debtor. He should bring himself fully within the statutory requirements as to the affidavit and the bond. He should bear in mind that the ob- ject of the suit is to obtain 2k final judgment under which the attached property may be unqualifiedly sold, and to which the purchaser may obtain a defensible title. III. Issuance of the Writ. §208. Issued hy derlz. — The writ, though not unusually issued by the clerk, is an emanation from the court.' The attachment being issued as a matter of course upon the com- pliance by the applicant with all legal requirements may as well be granted by the court through the clerk as to be done through the agency of the judge's own right hand. JSTo judi- cial deliberation is called into operation, and the act is done by the clerk for the judge under the general provision found in the statute, and a presumed general order, as though under a special order from the court in the particular case. Is the issuance of the writ, then, a judicial act when done by the clerk? It is said to be a ministerial act, bub it is not therefore an}^ the less judicial. The judge acts through the minister ; the latter is his right hand. Wide is the difference between such a minister and an executive officer of the court. The former is the servant of the court: the latter is the servant of the county or district of which he is an officer. A judge may make a clerk amend his minutes or any form of 1 In New York the warrant of at- Reed v. Bagley. 24 Neb. 333. In tachment must be subscribed by tlie Georgia the writ may be issued by a judge and the attorney of the plaint- notary. Georgia Ice Co. v. Porter, iff. This is held mandatory ; and 70 Ga. 637. The issuance of the writ omission is incurable by amendment, to the sheriff has no effect if not fol- lu Nebraska the district judge grants lowed by service and seizure. May attachments, but in his absence a ?;. Buckhannon. etc., 70 Md. 448; Mc- probate judge may represent him. Intosh v. Smiley, 32 Mo. App. 125. §§ 20y, 210.] ISSUANCE OF wpaT. 157 judgment drawn by the latter, but be cannot make a marshal, sheriff or constable amend his return. The marshal is an offi- cer of the United States, in his district; the sheriff is an officer of the state and county ; the constable is an officer within his geographical limits, but the clerk is an officer of the court, minister of the court, a doer of ministerial acts for the court, a performer of certain judicial functions under the actual or presumed direction of the judge so as to make his ministerial act the judge's act. § 209. The clerk could not legally make and deliver a writ of attachment, though the statute may contemplate the mak- ing and delivering by him in his ministerial capacity, were the bench without a judge. During the time of the vacancj'' of the judgeship no attachment could be legally issued. The awarding of process is presumably done always by the judge. It is as much a judicial function as the rendering of a decis- ion. A judge may decide a cause and then have his minister write out the judgment. He may make a general order that when an affidavit and bond are presented to the clerk the latter shall issue process thereon ; or the statute (as is usual) may supply the place of such standing order. § 210. Issuance a judicial act. — Where there is statutory authorization for the clerk to issue the process, as is generally the case, he still is presumed to act under the authority of the court ; and it would seem that a different construction would be equivalent to holding that judicial powers may be directly conferred upon the clerk. In all cases in which the clerk validly issues process he ought to be considered as act- ing for the judge, as his minister;^ but the doctrine that the issues of attachments by clerks are judicial acts is not always recognized by the courts. Whether manipulated by the clerk or the judge in its issu- ance, the writ is a judicial emanation. It is a step by the court in the exercise of jurisdiction. It is an exercise of juris- diction by the court whether issued directly by the judge, or by his ministerial officer under his presumed direction when he may be utterly ignorant of the application of the plaintiff for the attachment. 1 Van Vechten v. Paddock, 12 Johns. 178. See Baker v. Ayers (Ark.), 25 S. W. 834. 158 PKOCESS. [§§ 211, 212. § 211. When the clerk is unauthorized by law thus to rep- resent the judge, the latter can' give him no general authority to issue attachments; and the issiiiance of the writ by the former under sucli circumstances would not be an exercise of jurisdiction.^ The usual statute provision for issue by the clerk renders it unnecessary for the judge to direct him in each particular case. "When an order of court is required to authorize the clerk to issue the writ, attachment is void if the writ is issued by him without sucli order.^ Sometimes the affidavit is made in one county and the writ is issued in another;^ and if the bond may be executed out of the jurisdiction, still the clerk cannot respond to the applica- tion for the writ unless the statute of the state, with reference to both the affidavit and the bond, has been obeyed, whatever its requirement. TV. Requisites or the Weit. § 212. Form and matter. — The form and requisites of the writ vary under the different state systems, but it should always show the title of the cause, the parties to the suit, the court whence it emanates, the amount of the demand, the officer intrusted with its execution, the time within which it must be returned, and whatever else its statute-authorization may require. The parties to the suit, named in the writ, should be the same as those stated in the affidavit.^ The writ must correspond with the affidavit as to tlie amount claimed.^ But it need not be issued for every part of the claim.^ Its validity is tested by the facts stated in the affidavit. They may be true or not, but they must be stated substantially as 1 Greenvault v. F. & M. Bank, 2 acts as clerk, Rawles v. People, 2 Doug-. (Mich.) 498 ; Morrison v. Love- Colo. App. 501. joy, 6 Minn. 183 ; Guerin v. Hunt, 8 3 Wright v. Smith, 6C Ala. 545. id. 477 : Lewis v. Dubose, 29 Ala. 219 ; * Bennett v. Zabriski, 2 N. M. 7. See Goldsmith v. Stetson, 39 id. 183. p. 176 of same volume, 2 Philpott V. Newman, 11 Neb. 299 : 5 Cohen v. Smith, 38 111. App. 844 ; Held that in a suit against a non- Munzenheimer v. Manhattan, etc., 79 resident for a debt not due, an attach- Tex. 318. See Steamship Clarion v. ment issued by the clerk, without an Moi"au, 18 111. 500. order of court, is void. Under a ^ Gross v. Goldsmith, 4 Mackey (D. statute requiring the judge to direct C), 126. the clerk, he need not do so when he § 213.] REQUISITES OF WKIT. 159 the statute requires to give jurisdiction and justify the issue of the writ.^ The general facts of the declaration need not be inserted." The debt may be stated as less than the dec- laration states it, without fatality.^ If the affidavit states that the debt is to become due, the incongruous recital in the writ that it is due has been held not fatal.* If the writ is upon two causes of action stated in the affidavit, and one of them is untenable, it is bad.^ It should show prima facie the authority of the officer to execute it; and therefore it is essential that it bear evidence of its coming from the court to the executive officer, but it need not be under seal when ordered by the clerk.^ No one is bound to recognize a sheriff or a marshal or anv other functionary's right to lew" an attachment merelj^ because of his official character, though that creates a presumption of authority ; " but all must respect it when the special authorization is exhibited. The officer need not carry his authority about with him when he levies,^ but must be authorized by the writ before he can attach legally.^ A stranger cannot be thus authorized by the writ ; that is, the clerk cannot appoint a special sheriff and give him authority to attach.^" An attachment by such a person on such a warrant could be set aside, on motion, by any one in- terested though not an original party to the suit." The offi- cer himself would be unprotected should the writ be without the authority of a court having jurisdiction to issue it. If it is void, he could make a levy thereunder only at his peril.^' § 213. Direct seizure and return. — When not only the amount but the nature of the claim, and even specifications, must appear in the writ or by an appendage thereto, the omis- sion of such matter would be fatal.^^ The date of the return 1 Dwyer v. Testard, 65 Tex. 432. 8 Barney v. Rockwell, 60 Vt. 444. 2 Binney v. Globe Bank, 150 Mass. 9 Carroll County Bank v. Goodall, 574. 41 N. H. 81 ; Weingardt v. Billings, 3 Evans v. Lawson, 64 Tex. 199 ; La- 51 N. J. L. 354. throp V. Snyder, 16 Wis. 293. lo Dolan v. Topping, 51 Kan. 321. ^ Spitz V. Mohr, 86 Wis. 387 ; Wis. n Id. ; Long v. Murphy, 27 Kan. 375 ; Rev. Stat, § 2731. Grocery Co. v. Records, 40 id. 119. 5 Mayer v. Zingre, 18 Neb. 458. "2 ijg 232-236. 6 Seeligson v. Rigmaiden, 37 La. i^ Hanson v. Dow, 51 Me. 165, and Ann. 722. cases cited therein. 7 Miller v. Fay. 40 Wis. 633 ; Wales V. Clark, 43 Ct. 183. IGO PROCESS. [§§ 214-2 IG. is important since it shows the limit of the officer's autliority with respect to time; and within that limit he may make a return showing a levy on any legal clay. The writ directs the preliminary seizure of property of the defendant in quantity enough to satisfy the plaintiff's de- mand. The particular property to be seized is usually pointed out by the plaintiff to the sheriff in written instructions. § 214. The writ is to be returned, in accordance with its provisions, to the court whence it was issued. This would be implied if not expressed in the instrument itself. If there is not only time but place of return prescribed in the mandate; and if, in expressing the latter, there should be a mistake as to the court, the error would not be fatal if the circumstances precluded any misunderstanding as to what court the writ is returnable.^ The writ keeps alive till the expiration of the return day.^ § 215. If the grounds of the attachment have to be inserted (which is required in some states), they should correspond with those in the affidavit;^ and when the writ is without the required specifications it is void.^ If the suit is by a firm, the names of the members should be stated.^ When the debtor's Christian name appeared on the face of the attach- ment as fictitious, all proceedings thereunder were held void and the officer and creditor declared liable for attaching, though the person designated by the fictitious name was the owner of the property seized.^ § 216. Delivery to officer. — The clerk should deliver the writ to the officer who is to execute it, immediately upon its being completed. He may so deliver it through the agency of the plaintiff, who, should he neglect to give it to the ofilcer, would 1 Blossom V. Estes, 84 N. Y. 614 ; ^ In Maine the amount and charac- Gere v. Gundlach, 57 Barb. 13; ter of the claim not being specifically Simpson v. Burch, 4 Hun, 315. set forth in the writ when it was 2 Talbot V. Pierce, 14 B. Mon. 195. based on a money count, the omis- See Holzman v. Martinez, 2 N. M. sion was held fatal. Saco v. Hopkin- 271. ■ ton, 29 Me. 268 ; Osgood v. Holyoke, 3 Misrecital held fatal in Alabama 48 id. 410 ; Neally v. Judkins, id. (Woodley v. Shirley, Minor, 14); but 566; Hanson v. Dow, 51 id. 165. not in Mississippi. Lovelady v. Har- & Hirsh u Thurber, 54 Md. 210. kins, 14 Miss. 412 ; Clanton v. Laird, ^ Patrick v. Sohnger, 9 Daly (N. Y.), 12 id. 568. 149. §§ 217, 218,] REQUISITES OF WEIT. 161 be the only person injured and would have himself alone to blame. The clerk is therefore safe in handing the writ to the attachment plaintiff. He usually does so; and this is con- venient to the latter (rather his attorne}^), who usually has instructions to give as to the property to be seized, its where- abouts, etc., just as when directing an execution. Immediate delivery on the part of the clerk becomes very important when there are rival creditors running a race for preference, and where the law treats such writs by the rule first coine, first served} § 217. Dies non. — There is an exception in case of the de- livery of such a writ to the executive officer on a dies non — such delivery gaining no advantage by thus anticipating the next judicial day.^ Attachments, like other civil writs, can- not be issued from the court to the officer on Sunday, unless there is statutory authority therefor; because such act would be contrary to the common law;'' and if there is statutory authority under prescribed circumstances, the plaintiff must show those circumstances to exist by affidavit.^ If the grant- ing and issuing of civil process is a judicial act though done through a ministerial officer, it clearly comes under the com- mon-law inhibition with respect to the sabbath. Dies Domin- icus non est juridicus. Criminal process is exceptional, by statute, in England with regard to specified crimes; and more generally so in the United States: warrants for offenders being issuable on Sundays, § 218. If the issue of an attachment by the clerk is a minis- terial act in such sense that it is not judicial, it does not come under the common-law inhibition.^ It is not safe for a practi- 1 It has been held that as an officer has been made on Sunday upon the ought to serve in the order of his re- first order, ception of several processes, the court 3 3 b]. Com. 277 ; Swann v. Broome, will rank the liens in that order 3 Burr. 1595. though served differently. State v. * Updyke v. Wheeler, 37 Mo. App. Hamilton, 38 Mo. App. 287. SeeTenn. 680. R. S. 447. 5 Johnson v. Day, 17 Pick. 106, 109, 2 Whitney v, Butterfield, 13 Cal. where it is said ; "Another objection 335 ; Blair v. Shew. 24 Kan. 280. In is that the writ of attachment , . . the latter case held that an alias was void, the same having been made order made on Monday will not au- and delivered to the officer on Sun- thorize an attachment if a void levy day. By the common law, all judi- 11 162 PROCESS. [§ 218. tioner to rely upon the judicial character of the act in the pres- ent state of opinion upon this subject. Distinction has been drawn between orders of attachment, some being held judicial and some ministerial; and, though such distinction seems un- warrantable, it has to be respected where the courts recognize it. Under statutory regulations, the granting of the order, as well as the execution of it, on Sunday or anv dies non, is ffen- erally illegal, and may be made the ground for dissolving the attachment.^ But the issuance of the writ on legal holidays for debt due has frequently been justified as a ministerial act.^ The writ is frequently issued during the court vacation ; * by the judge in chambers during session or vacation ; by the clerk on money demands clearly ascertained;^ in many states by him on any demand upon which attachments are issuable. He must sign the writ issued by him under pain of nullity.^ cial acts done on Sunday are held void, . . . but all ministerial acts were valid before St. 29 Car. 2, c, 7, so that an arrest on civil jjrocess on Sunday was legal. Mackalley's Case, 9 Coke, 65. If then the case were to be determined by the principles of the common law, the question would be, whether the filling up of a blank writ and delivering it to an officer would be a judicial or a ministerial act" This is an unfair putting of the question; it should be whether the ordering of the attachment is a judicial or a ministerial act. The illustration from 9 Coke is not in point, for arrest on civil process is an executive act. 1 Merchants' N. Bank v. Jaflfray (Neb.), 54 N. W. 258; Morris v. Shew, 29 Kan. 661. Held in Blair v. Shaw, 24 id. 280, that a levy is void if made on Sunday, and voidable if made on an alias order on Monday. Held in Johnson v. Day, 17 Pick. 106, and in Tracy v. Jenks, 15 id. 465, 467, tliat the writ may be issued on Sunday after sunset; but in Fifield v. Woos- ter, 21 Vt. 215, held that the writ could not be issued on Saturday evening after sunset — each decision following its governing statute. In Alabama the writ is held to be ir- regularly issued if done on Sunday. Matthews v. Ausley, 31 Ala. 20. In general see Butler v. Kelsey, 15 Johns. 177; Delamater v. Miller, 1 Cow, 75; Geer v. Putnam, 10 Mass.- 312 ; Story v. Elliot, 8 Cow. 27 ; Mor- gan V. Richards, 1 Browne (Pa.), 171 ; Butler V. Kelsey, 15 Johns. 177; Hoghtaling v. Osborn, 15 id. 119; Field V. Park, 20 id. 140; Fox v. Abel, 2 Ct. 541 ; Pierce v. Atwood, 13 Mass. 324, 347; Cotton v. Huey, 4 Ala. 56. ■■^Whipple V. Hill, 36 Neb. 720; Glenn v. Eddy, 51 N. J. L. 255; Kin- ney v. Emery, 37 N. J. Eq. 339 ; Whit- ney V. Blackburn, 17 Oreg. 564 ; Had- ley V. Mussel man, 104 Ind. 459 ; Smith V. Ihling, 47 Mich. 614 ; Weil v. Geier, 61 Wis. 414; Worthington, In re, 7 Biss. 455. 3 Byers v. Brannon (Tex.), 19 S. W. 1091. 4 Atkinson v. James, 96 Ala. 214. 5 Smith V. Hackley, 44 Mo. App. 614. §§ 219-221.] AMENDMENT. 163 §219. Order of (Mivcry. — A writ oi fieri facias or any execution writ is entitled to no favor over an attachment writ, and the clerk should first deliver the one which is first in the order of time.^ But this rule as to the order of delivery- should not prevent the clerk from giving a prepared writ to a second applicant for attachment when the first is not present to receive his.^ AVhether the practice is, in any state, for the clerk to deliver writs to plaintifi's to be by them given to the officer with such instructions as they choose to impart, or for him to deliver them directly to the executive officer, the rule is the same as to the order in which they should be delivered. Any partiality by the clerk resulting in an undue advantage to one creditor over another would render him personally liable to the injured party. Y. Amendment. § 220. The writ must go into the officer's hands in a perfect state, since it is his warrant for the exercise of the sovereign act of taking a man's property away from him at the law's behest. If not perfect, it cannot be amended in any essential feature after property has been attached pursuant thereto. If the attachment is void for want of authority, no emendation of the warrant can cure what has been unlawfully done. It is of the highest importance therefore, not only to tlie plaint- iff's interest but to the officers protection, that the writ be right before it is acted upon. Though it be right, if the serv- ice is illegal, no lien is created.' There can be no reason why it may not have defects repaired before the levy. Nobody is in court but the plaintiff; nobody can oppose the plaintiff's application to have the writ changed in form and substance so as to accord with the affidavit and petition, and no judge should refuse to correct his own act in issuing a defective mandate. § 221. After the levy the summoned defendant has an in- terest to oppose the bettering of a bad writ; the court must 1 Bradley's Appeal, 89 Pa. St. 514. was modified owing to some agree- Au attachment writ was put into the ment with the trustees, etc. sheriff's hands at 2 o'clock, 10 min- 2 Lick v. Madden, 3G Cal. 208. See utes; a j^. /a. at 3 o'clock ; the first Florsheim, etc. Co. v. Commission was preferred, but the preference Co. (Ark.), 27 S. W. 79. 3 Fairbanks v. Bennett, 52 Mich. 61. 164 PKOCEss. [§ 222. let him be heard contradictorily, if the plaintiff should pray for amendment; the court itself is incompetent to make the bad writ good, if it has failed to acquire jurisdiction by reason of non-conformity to law thus far, in any respect. Even an amendment of the writ, made after the levy with the assent of the defendant, will not retroactively make the writ good in relation to other writs of attachment, all against the same property.^ § 222. After service, a writ cannot be altered to insert a di- rection for the summoning of a trustee.- The same is true with regard to the summoning of a garnishee. The reason is that if a writ could be so altered after service, the defendant would have no official notification of the fact. He could only have it by the service of a second writ after the summoning of the trustee or garnishee, and that would not be an amend- ment of the first. A writ which recited the wrong court as the place of the filing of the petition and where the writ should be returned was held amendable under a statute which authorized the emendation of any proceeding in attachment.* The amend- ment of attachment writs is liberally allowed in Alabama, even as to substance, and though the defect has been met by a plea in abatement.* When a writ is amendable between the levy and the judg- ment, its amendment cannot have such retroactive effect as to make the attachment lien outrank a mortgage given by the defendant before the amendment,^ unless the modification is of a slight character and not such as is necessary to give valid- ity to the levy. If the defect of the writ is that of using a wrong name, directing the attachment of one man's property when that of another should be seized, the proper course is to withdraw the writ and issue a new one. If amendment is allowed, a new levy vrould be necessary, even if the property has already been seized as that of the wrong person.® iDanielson v. Andrews, 1 Pick. * Herring v. Kell}% 96 Ala. 559; 156 ; Putnam v. Hall, 3 id. 445. See Ala. Code, § 2998 ; Peebles v. Weir, Atkins V. Womeldorf, 53 Iowa, 150. 60 Ala. 413. ^ Brown v. Neale, 80 Allen, 74. ^ Drew v. xilfred Bank, 55 Me. 450. 3 Rock Island Plow Co. v. Breese, ^Gile v. Devens, 11 Cush. 591 83 Iowa, 553 ; Iowa Code, § 3021. §§ 223-225.] AMENDMENT. 165 § 223. Misnomer. — Whether a misnomer may be corrected or not, after the service of the summons and the execution of the writ, depends greatly upon the question whether the cor- rection would impair the rights of the defendant, or co- attachers, or any third persons. The error is not amendable if it cannot be corrected without injuring some party.^ A misnomer may be disregarded when the sense is apparent.' Shght clerical errors, such as the omission of a letter in a name or the insertion of one, or even a wrong date of return, where no one can fail to apprehend the meaning, may be made after the levy.* § 224. Seal. — If a writ, issued out of the proper court after jurisdiction acquired, should bear a wrong seal — if, for in- stance, it should bear the seal of the district instead of the circuit court when issued by the latter, — it maybe amended.* Such an error ought to be amendable anywhere, because there can be no doubt as to what court issued the writ, and there- fore none that its seal ought to have been impressed upon the mandate; and it injures no one to have such an error of inadvertence corrected when discovered.'^ § 225. Wrong address. — If a writ is wrongly directed, the address may be summarily righted by the clerk; though, should it not be righted, yet if the sheriff knows that the 1 Button V. Simmons, 65 Me. 583; berg, 8 Abb. Pr. (N. S.) 287; Jackson Flood V. Randall, 72 id. 439. v. Brown, 4 Cow. 550 ; People v. Steu- 2 Loveladj- v. Harkius, 14 Miss. 412. ben, 5 Wend. 103 ; People v. Dunning, 3 Hall V. Brown, 82 Tex. 469 ; Diet- 1 id. 16 ; Dominick v. Backer, 3 Barb, trich V. Wolflfsohn, 136 Mass. 335; 17; Sabin v. Austin, 19 Wis. 421; Wentworth v. Sawyer, 76 Me. 434 ; Corwith v. Bank, 18 id. 560 ; Strong Wight V. Hale, 2 Cush. 486; Well- v. Catlins, 3 Pin. (Wis.) 121; Dwight over V. Soule, 30 Mich. 481. But a v. Merritt, 4 Fed. 615 ; Paper Co. v. radical change of name is fatal. Paper Co., 19 id. 252. Compare Kennedy v. Merriam. 70 111. 228; Bailey v. Smith, 12 Me. 196; Overton Moore v. Graham, 58 Mich. 25. v. Cheek, 22 How. 46. An unsealed * Murdough v. McPherrin, 49 Iowa, writ is held void at common law. 479 ; Wolf V. Cook, 40 Fed. 432. Wolf v. Cook, supra; Insurance Co. 5 Arnold v. Nye, 23 Mich. 286, 293 ; v. Hallock, 6 Wall. 556. See Hunter Tiltou V. Cofield, 93 U. S. 167; Cart- v. Turnpike Co., 56 Ind. 213. Judge Wright V. Chabert, 3 Tex. 261 ; Peas- Lumpkin, of Georgia, has ridiculed lee V. Haberstro, 15 Blatch. 472 ; the importance attached to the seal, Clark V. Hellen, 1 Ired. 421 : Purcell in the case of Lowe v. Morris, 13 Ga. V. McFarland, 1 id. 34; Seawelt v. 150, and many of the profession Bank, 3 Dev. 279; Talcott v. Rosen- doubtless will agree with him. 1G6 PKOCESS. [§§ 226, 227» order is meant for him, and goes on to make the levy, his action will not be void.^ Trouble and contention might ensue should he have in hand a junior writ of attachment against the property of the same defendant, properly directed ; but even in such case he ought to call the clerk's attention to the error and have it corrected, if he is cognizant of it, or go on and make the levy, knowing that the court's order must be obeyed though the evidence of it be defective. Where there is no rival writ, there w^ould be only the debtor to complain of the emendation, and certainly his complaint, under the cir- cumstances, would be of no avail.^ The writ should not be directed to any officer who is interested in the case.^ § 22G. When necessary and authorized, an alias writ may be issued; but the defendant cannot confer authority for its issue by his consent, or render an alias good by his waiver of objec- tion on the ground of want of statutory authorization.* The issue of a second writ is not necessarily an abandonment of the first.^ Service under an amended writ, which was not sufficient originallj'", under-ranks a prior service under a later writ which needed no amendment.^ If the plaintiff has sued out two writs, he is held protected from the consequences of the insufficiency of the first by the second if it is rights YI. The Writ as to Peopeety. § 227. Defendants j^roi)erty. — It is a peculiarity of this writ for the seizure of property that, Avhile it has reference only to the defendant's property, it is not directed against any specified thing, though there are exceptional cases. In this respect it is unlike an admiralty warrant, which is a 1 Warren v. PurtelJ, 63 Ga. 428. 3 McLeod v. Harper, 43 Miss. 42 \ 2 In Iowa the writ may be amended Boykin v. Edwards, 21 Ala. 261; after the levy. Atkins v. Womel- Lyman v. BurHngton, 22 Vt. 131 ; dorf, 53Iowa, 150. In Texas amend- Coarts v. Georgia, 18 id. 15. ments to writs are Hberally allowed. ^ Dennison v. Blumenthal, 37 111. Whittenberg v. Lloyd, 49 Tex. 633, App. 385. citing Porter v. Miller, 7 id. 482 ; May 5 Wright v. Westheimer, 2 Idaho^ V. Ferrill, 22 id. 344 ; Cartwright v. 962. Chabert, 3 id. 261. See, also, Wood e Kittridge v. Giflford. 62 N. H. 134. V. Smith, 11 Tex. 367. T Baines v. Ulman, 71 Tex. 529. §§ 228, 229.] . WEiT AS to pkopekty. 167 mandate for the arrest of the property therein stated ; unlike any order of seizure issued to vindicate a pre-existing lien. It is, on the contr-^ry, like an execution, which is a command to the executive otficer to seize any lawfully seizable property of the defendant against whom judgment has been rendered. It is not merely to authorize the attachment of property in the defendant's possession, but also that which he has fraudu- lently disposed of or fraudulently assigned.' S 228. The- writ of attachment, issued at the beginning of a suit, is really a prelirainar}^ execution dependent for its ultimate efficacy upon the rendering of judgment in favor of the plaintiff. It will be better understood by treating it as such. It has all the characteristics of a writ of execution in the first stage. The plaintiff may point out property to the officer. The officer may require security for indemnity in doubtful cases. The property seized comes into the lawful custody of the officer. Enough should be attached to cover the alleged indebtedness of the defendant, without excessive margin. No greater loss should be imposed on the debtor than is reasonably necessary to do justice to the creditor and satisfy the other demands of the law. Competing attach- ments usually take rank in chronological order as in execu- tions. The parallel will hold good in many other particulars. When judgment in favor of the attaching creditor has been 'obtained, his original writ merely requires an order of sale to render it equivalent to an execution — seizure having been made already. § 229. Licible iwoperty. — Though directed to no specific property of the defendant, the writ must be understood as a mandate confined to the seizure of that which may be lawfully attached ; so that, though written in general terms, it would not be applicable to things which are not attachable. Though the term property may include lands as well as goods, yet the writ must be understood in connection with the law of the place, and the officer is bound so to understand it and to act upon it. If land propert}^ is seizable, under statute provision, upon failure to find attachable personal property, the w^rit must be read as conveying such contingent authority. It 1 Little V. Ragan, 83 Ky. 321 ; Martz 14 Oreg. 561 ; Quarl v. Abbett, 102 Ind. t\ Pfief er, 80 id. 600 ; Dawson r. Sims, 233. 1G8 PKocEss. [§§ 230, 231. mast not be understood as a warrant for attaching anything exempt from seizure by law. If exempt property, mortgaged chattels in possession of the mortgagee, funds or assets validly assigned, and the lilie, are directly attached by the officer, under a valid writ empowering him, in general terms, to at- tach property of the defendant, he cannot shield himself under such writ for his wrongful act. For, as before remarked, the writ is to be understood in relation to the law; to be exe- cuted only upon property legally liable, and to be so employed as to subserve the purpose for which the creditor caused the court to issue it. If the law has made an exception in au- thorizing property to be attached for debt, the general writ must be read as containing such exception. Illustration may be found in the provisions relative to exempt homesteads. § 230, National hanJis. — No attachment can be issued against an insolvent national bank ; and the question of in- solvency has reference to the time of the attachment. Sub- sequent acquisition of money or assets cannot be considered in determining this question, unless the right to them existed at the time of the attachment in the sense that the bank then had property in them. The payment of large debts in full by the bank after the levy does not exclude the corporation from opposing the attachment as invalid by reason of the insolvency of the bank.^ The inhibition extends to such banks when they are about to become insolvent ; ^ but it has been held inapplicable to solvent national banks, so that if one of them has effects in a state other than that in which it is located, they may be at- tached in a suit against the bank.' § 231. Preliminary attachment of national banks is held to be contrar}'' to the statute,* which prohibits the seizure of such banks before judgment. A dissolution bond given by a na- tional bank as attachment defendant is pronounced void, and 1 Raynor v. Pacific National Bank, ~ Nat. S. L. Bank v. Mech. Nat 93 N. Y. 371 ; R S. of U. S., § 5242 ; Bank, 89 N. Y. 467. Robinson v. National Bank of New- 3 Robinson v. Nat. Bank of New- berne, 81 N. Y. 385 ; 37 Am. Rep. berne, 81 N. Y. 385 ; 37 Am. Rep. 508. 508. Held, in Raynor's case, that •» U. S. Rev. Stat., § 5342. § 5342 (cited) is not repealed by § 4 of Act of July 12, 188a § 232.] WRIT PROTECTING OFFICKR. 169 the act is held not an appearance hy the bank. An attach- ment judgment on such bond is without effect. An "affidavit of illegality " made by the surety on such bond must be sus- tained, as the judgment is without jurisdiction.^ There can be seizure only by final process.- How can the officer know whether or not a national bank is insolvent or about to become so? Ordinarily he cannot know ; and, in any case, if he does not, he is not to be held pecuniarily responsible for the want of such knowledge. The writ being directed generally against the property of the de- fendant, the officer can only do to the best of his knowledge ; and if the creditor insists upon the execution of the writ upon property of doubtful liability he should give an indemnifying bond. YII. The Writ Protectixg the Officer. § 232. When. — The writ is a complete shield for the sheriff, if it is valid and issued from a court clothed with jurisdiction, and he does his duty thereunder. Whether the plaintiff's claim is just or not; whether, if just, it is properly collectible by the process of attachment or not; whether, if so collecti- ble, the legal grounds for seizure are duly sustained by subse- quent proof or not, the officer is protected by a writ in proper form issued in conformity to statute by rightful authority, so long as he does his dut}^ as an officer under the mandate, and does nothing more.^ He would be doing something more if he should knowingly seize other property than that of the defendant, or do so without proper inquiry; for the writ is 1 Planters' Bank v. Berry (Ga.), 18« Banta v. Reynolds, 3 B. Mon. 80 ; S. E. 137. Garnet v. Wimp, id. 360; Owens v. 2 Id. ; Bank v. Mixter, 124 U. S. Starr, 3 Littell, 230 ; Lovier v. Gilpin, 727-9. Compare Raynor v. Bank, 93 6 Dana, 321 ; Gore v. Mastin, 66 N. C. N. Y. 371. 371; Ela v. Shepard, 32 N. H. 277; 3Erskine v. Hohnbach, 14 Wall. Seekins v. Goodale, 61 Me. 400: 613 ; Underwood v. Robinson, 106 Lashus v. Matthews, 75 id. 446 ; Liv- Mass. 296 ; Booth v. Rees, 26 111. 45 ; ingston v. Smith, 5 Pet. 90 ; Bird v. Hill V. Figley, 25 id, 156; State v. Perkins, 33 Mich. 28; Walker v. Foster, 10 Iowa, 435 ; Walden v. Woods, 15 Cal. 66 ; Manilock r. White, Dudley, 49 Mo. 419 ; Kirksey v. Du- 20 id. 598; Babe v. Coyne. 53 id. 261 : hose, 19 Ala. 43 ; Lott v. Hubbard, 44 Stevenson v. McLean, 5 Hunipli. 332 ; id. 593; Fulton v. Heaton. 1 Barb. Reams v. McNail. 9 id. 542; Day r. 552 ; Watson r. Watson, 9 Ct. 140 ; Bach, 87 N. Y. 56 ; Hines v. Cliam- 170 PKOCESS. [§ 233. necessarily confined to the defendant's property. When thus outside the sphere of his duty he cannot claim inviolability because of the writ in his hand.^ An invalid writ is no pro- tection to the officer acting under it.- He must know that the writ is regular when he is attaching property in the possession of a third person.' He cannot repair the wrong done, in attaching under an invalid writ, by tendering the property back to the owner,* After such unlawful attach- ment,, if the plaintiff fail to obtain judgment for the debt; 't may mitigate the officer's offense if he prove the debt.^ § 233. When not. — A valid writ is no protection to the offi- cer if he disturb the lawful possession of a person other than the defendant, or attach property that is not legally attach- able.^ Though the defendant may have been duly served in bers, 29 Minn. 7 ; Mayer v. Duke. 72 Tex. 445 ; Cross v. Phelps, 16 Barb. 502 ; Livingston v. Smith, 5 Pet. 90. 1 Carpenter v. Scott (la.), 53 N. W. 828; Wambold v. Vick, 50 Wis. 456; Eothermel v. Marr, 98 Pa. St. 285 ; High V. Wilson, 2 Johns. 46 ; Rinchey V. Stryker, 28 N. Y. 45 ; Marsh v. Backus, 16 Barb. 483; Tufts v. Mc- Clintock, 28 Me. 424 ; Morse v. Hurd, 17 N. H. 246; Damon v. Bryant, 2 Pick. 411 ; Robinson t\ Mansfield, 13 id. 139 ; Richardson v. Hall, 10 Md. 399; Rosenbury v. Angel), 6 Mich. 508; Sexey v. Adkinson, 34 Cal. 346; Main v. Bell, 27 Wis. 517 ; Heath v. Keyes, 35 id. 668 ; Perry v. Williams, 39 id. 339 ; Williams v. Morgan, 50 id. 548; Cook v. Hopper, 23 Mich. 511. 2 Williams v. Eikenberry, 25 Neb. 721 ; Noble v. Holmes, 5 Hill (N. Y.), 194; Oberfelder v. Kavanaugh, 21 Neb. 483 ; Connelly v. Woods, 31 Kan. 359. Compare McFadden v. Whit- ney, 51 N. J. L. 391. 3 Van Etten v. Hurst, 6 Hill (N. Y.), 311; Thorburgh v. Hand, 7 Cal. 554; Wehle V. Butler, 61 N. Y. 245 ; Hall v. Waterbury, 5 Abb. N. C. 374. ''Higgins V. Whitney, 24 Wend. 379 ; Otis v. Jones, 21 id. 394 ; Ball v. Liney, 48 N. Y. 6. See Lyon v. Yates, 52 Barb. 237 ; Sherry v. Schuyler. 2 Hill (N. Y.), 204. 5Bogert V. Philps, 14 Wis. 88; Mil- ler r. Bannister, 109 Mass. 289 : Nor- ton V. Kearney, 10 Wis. 443; Jones V. Lake. 2 id. 210; Braley v. Burns, 20 Minn. 435; Hiues v. Chambers, 29 id. 7 ; Maley v. Barrett, 2 Sneed, 501. 6 Cooper V. Newman, 45 N. H. 339 ; Foss V. Stuart, 14 Me. 312 ; Richards V. Daggett, 4 Mass. 534; Gibson v. Jenney, 15 id. 205; Howard v. W^ill- iams, 2 Pick. 80 ; Bean v. Hubbard, 4 Cush. 85 ; Lynd v. Pickett, 7 Minn. 184; Caldwell v. Arnold, 8 id. 265; Woodbury v. Long, 8 Pick. 543 ; Ford V. Dyer. 26 Miss. 243; Meade v. Smith, 16 Ct. 346 : Sangster v. Com- monwealth, 17 Grattan, 124; Van Pelt V. Littler, 14 Cal. 194 ; Archer v. Noble, 3 Me. 418 ; Harris v. Hanson, 11 id. 241 ; State v. Moore, 19 Mo, 369; Commonwealth v. Stockton, 5 Monroe, 192 ; People v. Schuyler, 4 Com. 173; Gibbs v. Chase, 10 Mass. 125; Miller v. Baker, 1 Met 27; Morse v. Hurd, 17 N. H. 246 ; Paxton V. Steckel, 2 Pa. St 93. § 234.] "VVKIT PROTECTING OFFICER. 171 an attachment proceeding, so that citation has brought the personal suit into being; though the affidavit has been made according to statute and bond given; though the writ has been issued and lodged in the sheriff's, marshal's, or other executive official's hands ; and though the plaintiff has given instructions and pointed out attachable property, there is not 3'et even a hypothetical lien created, and the defendant may sell his effects and third persons may buy, with perfect im- punity. To this rule there are exceptions, since, in some of the states, the lien becomes operative as soon as the writ is placed in the sheriff's hands ; but generally it is true that even after a perfectly valid writ has been issued, the debtor may convey and deliver his property to a third person by a per- fectly hona fide transaction, so that the sheriff cannot attach it as the property of the defendant except at his peril, § 234. Froi^erty held hi/ mortgagee. — A valid writ of attach- ment gives no authority to attach and take possession of property of the defendant which is lawfully in the hands of mortgagees.^ Such property can be reached only by garnish- ment. The mortgagee has the prior lien; and that cannot be disturbed, prejudiced or forestalled by an attachment of later date. The mortgagee is entitled to possession rather than the attaching creditor. The possession of the officer may be good against all except the mortgagee of chattels attached.^ Such chattels have been held attachable in the mortoao-or's hands before his default.^ If mortgaged chattels may be at- tached .under any peculiar practice, instead of being reached by garnishment, as under the general rule, the officer can detain them only so long as may be necessary to take an inven- 1 Fitch V. Waite, 5 Conn. 117; 2 First N. Bank r. North (S. D.), 51 Stockley v. Wadman, 1 Houston N. W. 96 ; Simonds v. Pearce, 31 Fed. (Del.), 350; TomHnson v. Stiles, 4 137; Howe v. Tefift, 15 R I. 477; Dutch. (N. J.), 201 ; Wallace v. For- Powers v. Elias, 53 N.v Y. Superior rest, 2 Harris & McHenry (Md.), 261 ; Ct. 480 ; Norris v. Sowles, 57 Vt. Crowninshield v. Strobel, 2 Brer. 360. See Salinas Bank v. Graves, 79 (S. C.) 80. Even if the defendant has Cal. 193 ; Roundstone v. Holt (Colo. sold after the levy, the sale will hold App.), 37 P. 85. good against a purchaser at an at- 3 Myers v. Cole, 82 Kan. 138. tachment sale, if the writ was void * Blauvelt v. Fechtnian, 48 N. J. L. for any cause O'Farrell v. Heard, 430. 22 Minn. 189. 172 PKocEss. [§§ 235, 236. toi7 of tbera ; he cannot permanently dispossess the mort- gagee.^ § 235. If mortgaged chattels, in the lawful possession of mortgagees, are seized as the property of the mortgagor who is the defendant in the attachment suit in which such seizure is made, it has been held that the officer is liable to the mort- gagees as a trespasser, if the writ is invalid; that the writ is invalid if the court issuing it has no jurisdiction; and that there can be no jurisdiction if there is no affidavit made in ac- cordance with statute; and that to be in accordance with statute the affiant must swear that the debt sued upon is due if that is required. It was held that the officer executing such writ may be sued in a separate action ; and, though he be the marshal of a federal district acting under such a writ issued by a circuit court of the United States, he may be sued by the mortgagees in a state court as a trespasser; and he cannot shield himself there by the writ because of facial va- lidity, nor prove in defense that the ])roperty held by the mortgagees belonged to the defendant in the attachment suit.- § 236. Conflict ofojnnion. — On the other hand it has been held that if the attachment writ is valid upon its face and issued by a court of general jurisdiction Avhen the defendant is in court, it will protect the officer from any collateral at- tack upon him as a trespasser for executing it; that though the affidavit may not have been made as required by statute, an attachment thereunder is not void but voidable, made under a writ facially valid issued by such a court ; that marshals are court officers, bound to obey the court and to execute what- ever writs, apparently legal, may be put into their hands for execution ; in fine, that the officer is perfectly protected by such writ and need not look behind it for its authorizatioi\ * This conflict of opinion turns upon a question of jurisdic- tion — which is not now the subject in hand. Both courts doubtless agree that when a judicial command has been au- thoritatively given, the officer is bound to obey, and therefore is not punishable, for obedience. Both would certainly concur iKing V. Hubbell, 42 Mich. 597. 3 Same Case, 109 U. S. 216. 2 Matthews v. Dens more, 43 Mich. 461. § 237.] INDEMNITY EOXD. 173 in the conclusion that the marshal, in the case they were con- sidering, was under the ample protection of the writ he bore if he attached property owned and possessed by the attach- ment defendant, provided they could first agree that the United States Circuit court had jurisdiction of the ancillary suit. YIII. Indemnity Bond. § 237. May 'be required, when. — The officer to whom a valid writ is addressed is bound to use all due diligence to execute it, provided he can do so without perpetrating injustice to others and loss to himself. He is not to be the arbiter of the possible injustice, but he is the best judge as to whether he can execute his trust without involving himself in a law- suit for trespass. I-f he has reasonable ground to believe that the property which the attaching creditor has pointed out for seizure is really the property of another person than the debtor ; if he has been credibly so informed, or has been notified of the fact by a claimant; especially if the property is in litiga- tion and the question of ownership is doubtful, he may require a bond of indemnity from the plaintiff.^ Such bond may be demanded before or after the levy, not only under an attachment writ but under vend. ex. or fi. fa. when the ownership is doubtful.^ And it is held that an in- demnity bond to the sheriff makes the plaintiff responsible to the defendant.^ But it has been said that the attaching officer cannot demand an indemnity bond before selling disputed property, when the order of sale is regular, in an attachment case.* It seems that he cannot demand it before attaching if the writ is not addressed to him. A sheriff, before serving an attachment writ directed "to any constable," demanded an indemnity bond. It was held that there could be no recovery on it, because the writ was not directed to hira.^ And, though the writ be addressed to him, if he has made no return upon it, he cannot recover on the bond.^ 1 Mahalovitch v. Barlass, 36 Xeb. 3 Knight v. Nelson, 117 Mass. 458. 491. estate v. Manly, 11 Lea. 636. 2Lavretta v. Holcombe (Ala.), 12 ^Porter r. Stapp, 6 Colo. 32. So. 789 ; Screws v. Watson, 48 Ala- 6 Wiggin v. Atkins, 136 Mass. 292. 628. 174: PEOCESS. [§§ 238, 239. If the sheriff has asked and obtained the bond to secure him, the court will not cancel it on the plaintiff's motion when the rifjhts of interveners remain undecided.' § 238. The attachment is to be effected in the plaintiff's in- terest — not in that of the officer; he has provoked the pro- ceeding and caused the writ to issue; he has sworn to the defendant's indebtedness and must know the fact; he has pointed out the particular property which he wishes the sher- iff to attach, and why should he not protect that officer? His refusal to do so, while a junior attacher complies and thus causes the sheriff to attach, has been held to give the latter lien-rank above him.^ When the attaching creditor has secured the sheriff by bond, he may defend a suit for damages brought against that officer, though he cannot intervene and become a party to the record. lie may defend in the sheriff's name.^ But the sheriff may have him and his sureties made parties, as indem- nitors.* § 239. The duty which the officer is ordered to perform is a delicate one in many instances; and it is always a bighly re- sponsible one. It involves reparation to the plaintiff in dam- ages for any dereliction by which he fails to attach property and causes the plaintiff loss in consequence. If he does not request the attaching creditor either to indemnify him or to point out property for attachment, he is yet bound to execute the precept with diligence and faithfulness, and is responsible for his own faults resulting in failure. When a plaintiff, personally or through his attorney, desig- nates what goods or other property the officer must seize, he is bound to protect him in the execution of such instructions, and may be made to indemnify against loss resulting to the officer because of obedience to such instructions. In such case there is an implied promise of indemnification.* 1 Thebaud v. Nat. Cordage Co., 57 reys v. Pratt, 2 Dow & Clark, 228 ; Fed. 567. Fletcher v. Harcott, Hutton, 55 ; Betts 2 Cudahy v. Einehart, 60 Hun, 414 ; v. Gibbons, 2 Ad. & El. 57 ; Adam- Smith V. Osgood, 46 N. H. 178. son v. Jarvis, 4 Bing. 72. In Ten- 3 McKee v. Coffin, 66 Tex. 304. nessee held that the sheriff cannot * Stevens v. Wolf, 77 Tex. 215. demand a bond of indemnity before 5 Gower v. Emery, 6 Shepley, 79 ; levying. Shaw v. Holmes, 4 Heisk. Ranlett v. Blodgett, 17 K H. 306; 692. Bond V, -Ward, 7 Mass. 126 ; Humph- §§ 240, 241.] INDEMNITY BOND. 175 If the sheriff acts on his own responsibility and thus causes loss to himself, the plaintiff who has not given him either bond or instructions would not be obliged to make good his loss. Nor would he be obliged to do so, if the officer be in fault, though a bond has been given,^ § 240. Common-lmv right — It is the right of the person charged with the execution of the writ to demand a bond of indemnity before proceeding in doubtful cases.^ Whether there is express authority therefor by statute or not, the com- mon law gives the right.* The case is like that of a seizure under 2,fi.fa. where the right to indemnity is from the com- mon law. Attachment is a preliminary seizure to hold the property till judgment can be obtained and vend. ex. or some other writ of sale issued. There is therefore as much reason for indemnity in the latter case as in the former, and the same legal principle applies.* § 241. May delay till 'bond furnislied. — If the officer finds designated property in the possession of another than the debtor, held under a claim of title, or learns that it is in pos- session of a mortgagee, however doubtful may be the posses- sor's right to hold, an indemnity bond may reasonably and judiciously be demanded of the plaintiff before the execution of the writ upon such property. And he may, when indem- nity has been demanded, delay the execution till the bond be executed, and refuse to act altogether if it be refused. If in- demnity has been promised there would seem to be an implied agreement that the officer need not seize until protected.^ While an officer is not obliged to execute the writ upon property to which the title of the defendant is doubtful with- out being reasonably indemnified, he cannot demand a bond • Wiggin V. Atkins, 136 Mass. 292. than the defendant. The plaint- 2 Smith V. Cicotte, 11 Mich. 383. iff refused to give the bond, and the 3 Chamberlain v. Beller, 18 N. Y. sheriff notified the garnishee that he 118. had no claim on the goods. It was * In Shriver v. Harbaugh et ah, 37 held that the sheriff was not liable Pa. St. 401, it is stated that the sheriff for discharging the garnishee, as liis informed the attaching plaintiff that bailee, when the indemnity had been he required a bond of indemnity for refused. See Rothermel v. Marr, 98 the reason that the garnishee had Pa. St. 285. given notice that the goods in his 5 Smith v. Cicotte, 11 Mich. 386. possession were claimed by another 176 PKOCEss. [§§ 242, 243. of indemnity in a sura more than sufficient to secure him against loss; and he cannot release the property, where it has been rightly attached, without rendering himself liable to the attaching creditor,^ § 242. Should not (May wlioi lie has not aslicd for hond. — A sheriff who has instructions to attach certain property pointed out by the attaching creditor cannot escape the re- sponsibility of executing the writ on the ground that he has been furnished no indemnity bond, when he has not asked for any.- It is his duty to go on and seize and obey the plaintiff's instructions as far as practicable ; and it is not a sufficient excuse for default that he afterwards heard and erroneously believed that such instructions would expose himself to an action, and would have resulted in no good to the plaintiff. But if his subsequently received information should prove true, he might reasonably ask indemnity after first undertak- ing to act without any express promise, being in such case answerable to the plaintiff only for such actual damage as may have been incurred by the latter by reason of tlie delay. The sheriff, having undertaken to attach specified property, is liable for not doino- so, unless he can show that he could not law- fully follow the creditor's instructions. To admit the excuse ' that he was deterred by subsequent information, etc., would be dangerous and contrary to authority.'^ But if a third person has made a contest and claims property as his, after it has been attached on mesne process as that of the defendant in an attachment suit, the sheriff may demand indemnity before proceeding further. If there are several creditors, some of whom indemnify the officer when requested while others do not, the former will be the beneficiaries of his action rather than the latter.'' § 243. Lidbility of the 2)arties.-^ ^hen the officer has been furnished with an indemnifying bond, he must yet comply with all of his own obligations before he can avail himself of the security it gives. If property has a rival claimant but is 1 Wadsworth v. Walliker, 51 Iowa, Ball v. Badger, 6 id. 405 ; Marshall 605. V. Hosmer, 4 Mass. 63. 2 Perkins v. Pitman 34 N. H. 261. * Smith v. Osgood, 46 N. H. 178, hav- 3Ranlett v. Blodgett, 17 N. H. 304 ; ing reference to sale, and the rights of creditors to proceeds, etc. § Qi'i.] INDEMNITY BOND. 177 to be attached as belono^ino^ to the defendant, and the bond given to indemnify the sheriff contains the stipulation that he shall inform the attaching creditor in case of any suit, he cannot maintain any action on the bond for loss that might have been prevented had he complied with the condition. IS'or could he recover of the creditor upon an implied promise, inferred from the instructions to attach designated property, for the reason that the sl!ipulation would preclude such an im- plication.^ Notwithstanding the indemnity bond, the plaintiff is not entitled to an order on the sheriff to pay money into court, when there is a suit, by a claimant of the fund, still pending, if by the terms of the bond or other agreement the sheriff had permission to retain the money for a reasonable time as ad- ditional security.- § 2J:i. JSTotice to the sheriff of a claim by a third person is admissible in evidence in a suit by such person to recover the property, when it is shown that the sheriff received it and thereupon demanded an indemnity bond of the attaching creditor.^ Persons wronged by attachment, who may sue either the attaching creditor or the sheriff, are not oblig-ed to sue the latter first because of the fact that he has received an indemnity bond of the creditor. Both may be sued jointly.* In Missouri, where the bond must be to the state ^ and must be under seal,^ a suit upon it is held to be the proper remedy when the attachment has been dismissed — not a suit of tres- pass against the officer."^ The bond makes the plaintiff bound to protect the officer against any loss or damage the suit may cause him in the line of his duty ; and " all damages and costs " has been held to in- clude his attorney's fees.^ 1 Preston v. Yates, 24 Hun, 534. 5 St. Louis Dairy Co. v. Sauer, 16 2Scherr v. Little, 60 Cal. 614. Mo. App. 1. ^ Turner v. Younker, 76 Iowa, 258, 6 id. ; State v. Thompson, 49 Mo. See Freiberg v. Freiberg, 74 Tex. 123 ; 188 : State v. Clay Co., 46 id. 231. Deere v. Wolf, 77 Iowa, 115, ■ Paddock, etc. v. Mason, 16 Mo. ^Dyett V. Hyman, 129 N, Y, 351; App. 320, Pool V. Ellison, 56 Hun, 108 ; Walker » Liudsey v. Parker, 142 Mass, 582. V. Wonderlick, 33 Neb. 504 Compare Brinker v, LeinkrauflF, 64 13 Miss. 236. 178 PROCESS. [§245. § 24:5. Sureties, — The sureties on an indemnity bond are not liable, as those on the officer's official bond, for damages to attached goods when caused by the sheriff's neglect.^ But where the levy is unlawful they may be sued together with the sureties on the sheriff's or marshal's official bond by the party suffering damage thereby.- Sureties on different in- demnity bonds, given by several attachers respectively, are not jointly liable for wrongful attachment, though the at- tached goods be sold in bulk to one bidder.' When sureties are sued on their oblio:ation, thev cannot defend on the ground that the sheriff had no right to take tlie bond.* iSraokey v. Peters, 66 Miss. 471; v. Hoppock, 15 N. Y. 413; Knight u Boynton v. Morrill, 111 Mass. 4; Nelson, 117 Mass. 458; Lislier u. Get- O'Donohue ?•. Simmons, 31 Hun, 367. man, 30 Minn. 327; Screws r. Wat- 2 Cabell V. Hamilton, etc. Co., 81 son, 48 Ala. 628. Tex. 104 ; Stiles v. Hill, 63 id. 431 ; 3 Sparkman v. Swift. 81 Ala. 231. Lewis V. Johns, 34 Cal. 639; Love- * ]\iorgan v. Furst, 4 Martin, N. S. joy V. Murphy, 3 Wall. 9; Herring (La.) 116. CHAPTER YIL LIABILITY TO ATTACHMENT. L Debtor's Property Generally §§ 246-248 IL Partnership Property 249-254 in. Property Held by Third Persons 255-258 IV. Property in Custodia Legis 259-261 V. Property Assigned , 262-266 VL Property Consigned 267-271 VIL Choses in Action 272-275 I, Debtor's Property Generally. § 246. There is great uniformity in the statutes as to what is attachable.^ The real and personal property of the defend- ant is liable in every state and territory within the juris- diction. His credits are likewise attachable; and , many of the statutes expressly enumerate, among liable property, his stocks held in incorporated companies, legacies, interests in decedents' estates and dividends in the funds of insolvent estates; while some declare that evidences of debts due him in the form of notes and bonds and book accounts, etc., are liable to attachment. Those statutes which do not expressly mention stocks and like incorporeal property generally include them in comprehensive provisions, such as authorize the at- tachment of all species of property, real or personal. §247. OivnersMi) and 2)Ossessiou.—^^Vha.t the debtor owns may be in his own possession or in the hands of third per- sons. It is essential to direct attachment that the property should be both owned and possessed by the debtor.- His legal dispossession by the sheriff, so that the latter, under the court, gains the control of the property, is necessary to its valid attachment ; and therefore the debtor must first have 1 Facts sliowmg property attach- Gould v. Howell, 32 111. App. 349 ; able : Kempnerv. Rosenthal, 81 Tex. Rumsey v. Nickerson, 35 id. 188. 12. Facts showing it not liable: 2 And must be legally salable. Barron v. Arnold, 16 R L 22. 180 LIABILITY TO ATTACII-MEXT. [§ 248. the custody in the capacit}'' of owner in order that such dis- possession may be legally effected. Property in the possession of the debtor cannot be at- tached as his if he does not own it.^ What he holds in trust as guardian, executor, administrator, agent, or in any oflBcial, financial or other capacit}^ cannot be attached and executed for his debts. § 248. If he has set apart any of his own property or funds to pay a particular debt, the general attacliability of that which is thus devoted depends upon the question whether he retains control over it. If it has been put into the hands of a third person for the use of a particular creditor, beyond power of revocation, no other creditor can attach it unless it exceeds the amount necessary to effect the purpose of the de- posit; for the beneficiary would have a lien upon it to that amount. At an}^ rate, it could only be attached in the hands of the depositary subject to the lien. It has been held that funds set apart to pay a particular debt falling due, in the hands of an agent for that purpose, under such circumstances as to constitute a trust fund bevond the control of the prin- cipal, are not attachable for his debts, though his creditors have had no notice of such trust.'- This disposition of a fund is distinguishable from that of its deposit with a clerk of court as security in place of an undertaking bond. In the latter case the fund remains the property of the defendant without any certainty that an}'^ part of it will have to be used to make good his obligation; and the fund is liable to attachment,* subject to the lien upon it. These illustrations belong rather to the subject of attach- 1 Shaughnessy v. Lininger, etc. Co., Blum, 60 Miss. 828. Goods of a firm 34 Neb. 747 ; Brown v. Watson, 72 may be attached in the hands of Tex. 216; Brown v. Scott, 7 Vt 57; a surviving partner, in Montana. Gallup V. Josselyn, id. 334 ; Zoller v. Cobb v. Spieth, 8 Mont. 494 ; Kruger Grant, 56 N. Y. Super. Ct. 279 ; Chase r. Spieth (Mont. ), 20 P. 664. Property V. Elkins, 2 Vt 290 ; Stevens v. held as collateral securitj^ may be at- Briggs, 5 Pick. 177 ; Walcot t*. Pome- tached by tlie holder. Deering v. roy, 2 id. 121; Elliott v. Stocks, 67 Warren, 1 S. D. 35. Ala. 270 ; Goodell v. Fairbrother, 12 2 r. l. & M. Works v. Kelley, 88 E. I. 233 ; Moon v. Hawks, 2 Aikens, K Y. 234. 390 ; Carson v. Carson, 6 Allen, 397 ; 3 Dunlop v. Pat F. Ins. Co., 74 N. Morgan v. Ide, 8 Cush. 420 ; Hughes Y. 145. V. KeUy, 40 Ct 148. See Shannon v. § 24:9.] DEBTOR S PROPERTY GENERALLY. 181 raent in the hands of third persons than to direct attachment, which is now under consideration. They are mentioned here to show that the debtor must have both ownership and con- trol in order to render property attachable. Even were he to retain an article of property in his own hands, yet create a lien upon it in favor of a particular creditor (unless insolvent and granting the lien by way of giving fraudulent preference to such creditor), such article could not be attached by any other creditor to the prejudice of the lien. It could only be taken subject to the lien.^ § 219, Property framlnlcntly transferred. — "What has been said respecting the joinder of ownership and possession must be qualified so far as fraudulent transfers are concerned. The simulated sale of land or other property would not pre- vent its lawful attachment as the property of the fraudulent grantor.- Even though he should die before the debt against him should become due, an attachment suit to enforce it might be brought, on proper grounds, against his administrator or other legal representative of his estate, and the fraudulently transferred property might be attached, though the grantee should be in possession.^ The reason is that the debtor would not cease to own by reason of his wrongful act ; nor would his right of possession be lost, so far as interested third per- sons are concerned. If a judgment debtor fraudulently convey property, and it be attached while standing in the grantee's name and that of a trustee under a trust deed from the grantee, to secure a debt, 1 Goulding v. Hair, 133 Mass. 78. 2 Mulock v. Wilson (Colo.), 35 P. There are two modes in Massachu- 532. The sale being void, the grantor setts : (1) The creditor may attach remains the owner. Gregory v. Fil- mortgaged property still in tlie hands beck. 13 Colo. 382; Wilcoxen v. of the mortgagor, if he pays the Morgan, 2 id. 478 ; Marston v. Marston. mortgagee in ten days ; or, he may 54 Me. 476 : Newman v. Willets, 52 attach and summon the mortgagee 111. 101 ; Weightman v. Hatch, 17 id. as trustee. Flanagan v. Cutler. 121 287. See, as to statements made by Mass. 96 ; Boyntou v. Warren, 99 id. a purchaser some months before the 172; Hayward v. George, 13 Allen, sale, Higgins Carpet Co. u. Hamilton 66: Martin v. Bayley, 1 id. 381. So (N. J.), 28 A. 716; Kipp v. Chamber- he may make the vendor a party and lain, 20 N. J. L. 656. sell the surplus above his lien. An- 3 Pulsifer v. Waterman, 73 Me. 233» derson v. Fitzpatrick (Ky.), 14 S. W. 947. 182 LIABILITY TO ATTACHMENT. [§§ 250, 251. only the surplus from a sale under the trust deed can avail the attaching creditor.^ Land transferred in a state other than that in which it is situated would be validly transferred as to one who has assented to it by taking a part of the price.^ II. PaETNEKSHIP PkOPERTY, ETC.'' § 250. Suit against a j^artncr. — All that is attachable as the right, title and interest of a member in a firm is his share of the surplus after the debts of the partnership are paid.* Such interest may be attached by his personal creditor. If his partners claim what is attached, and the defendant's inter- est is proved, it is error to charge the jury that they may find for the claimants in general terms.^ If the firm is insolvent, nothing is attached by attaching the interest of a member; and a purchaser of the interest of such member, at a sheriff's sale, would get nothing. One partner can legally sell part- nership goods to a customer in his line of trade, or convey them to a creditor of the firm in payment, without consulting the other partner or partners, even when the firm is insolvent, and though preference be thus given to one creditor over an- other (where there is no statutory inhibition of such a prefer- ence) — but his creditor cannot successfully attach as his any- thing more than his share of the assets remaining after the payment of the debts of the firm as above stated. Attach- ment against a partner for the wrongful conduct of the firm's business will not warrant the seizure of another partner's pri- vate property." § 251. Suit against firm. — Attachment in a suit against a partnership must be on grounds applicable to the firm or all the members.^ Any member may defend such suit in his own 1 Brown v. Campbell, 100 Cal. 635. Henry v. Cawtborn, 4 Heisk. (Tenn.) ~ Cbafee v. Fourth National Bank, 508. 71 Me. 514. A general assignment by 5 Columbia Bank v. Spring, 55 N. a debtor whose debts do not exceed J. L. 545 ; Hill v. Beach, 12 N. J. Eq. • does not dissolve an attachment 31 ; Aldrich v. Wallace, 8 Dana, 287; in Maine. Collins v. Chase, 71 Me. Kern v. Wyatt, 89 Va, 885 ; Hersh- 434 ; Insolvent Act of 1878, § 59. field v. Claflin, 25 Kan. 166 ; Clagett 3 See g§ 377-379. v. Kilbourne, 1 Black, 346. 4Staats V. Bristow, 73 N. Y. 264; 6 Wortbley v. Goodbar, 53 Ark. 3. Peck V. Fisher, 7 Cush. 386 ; Me- - Collier v. Hanna, 71 Md. 253 ; Hin- man v. Opera Co., 49 IlL App. 135. 251.] PARTNERSHIP PROPERTY, ETC. 183 narae.^ Partnership effects cannot now be seized under at- tachment or execution for the debt of a member of the firm in Texas;- but Stayton, J., in the case just cited, said that the opposite rule is very generally held, and was observed in that state prior to the adoption of the Eevised Statutes.^ And he adds: "The same rule seems to exist in the state of New York." * When an article of firm property in that state is validly converted into the separate property of one of the partners, its liability for the firm's debts no longer continues.^ When a debtor mortgaged his stock of goods to secure his retiring partner and others, and preferred the partner — the goods being of value sufficient to secure him only — the trans- fer was held fraudulent and the goods attachable." In a suit against a partner, the attachment of his firm's property as wholly his is held not supported by proof of his interest.'^ It is trespass to attach and remove partnership goods on mesne process against one partner for his personal debt, it is held, but this is not the case everywhere.^ 1 Davis V. Megroz, 55 N. J. L. 437. 2 Lee V. Wilkins, 65 Tex. 295. See Rich V. Solari, 6 Mackey, 371. 3 Citing De Forrest v. Miller, 42 Tex. 38; Longcope v. Bruce, 44 id. 436; Bradford v. Johnson, id. 383; Thompson v. Tinnen, 25 Tex. Sup. 56 ; Rogers v. Nichols, 20 Tex. 28. * Citing Moody v. Payne, 2 Johns. Ch. 548 ; Walsh v. Adams, 3 Denio, 127 ; Schrugham v. Carter, 12 Wend. 131; Phillips v. Cook, 24 id. 388; Waddell v. Cook, 2 Hill, 47 ; Adkins V. Saxton, 77 N. Y. 195. See Zolleru. Grant. 56 N. Y. Superior Ct. 279. In Lee V. Wilkins, supra, it was held that a firm had no cause of action against an attaching creditor for seizing their goods in his suit against a partner, which seems not quite ac- cordant with the point of the decision above stated. sStanseli v. Fleming, 81 Tex. 298; Kendall v. Hackworth, 66 id, 499; Swearingen v. Bassett, 65 id. 272; Weaver v. Ashcrof t, 50 id. 427 ; White V. Parish, 20 id. 689. ^ Taylor v. Missouri Glass Co. (Tex. App.), 25 S. W. 466. T ZoUer V. Grant, 56 N. Y. Superior Ct. 279. 8 Sanborn v. Royce, 132 Mass. 594. The court say that the question before them had never been decided in Mas- sachusetts, though subjected to much discussion and conflicting opinion elsewhere. And they cite the follow- ing authorities in support, as "more in accordance with just legal princi- ples " than those which are opposed to their proposition : Bank v. Car- rollton R. R., 11 Wall. 624-9; Crop- per V. Coburn, 2 Curtis, 465 ; Burnell V. Hunt, 5 Jur. 650 ; Garvin v. Paul, 47 N. H. 158 ; Darborrow's Appeal, 84 Pa. St. 404 ; Haynes v. Knowles, 36 Mich. 407 ; Levy v. Cowan, 27 La. Ann. 556. See Tucker v. Adams, 63 184 LIABILITY TO ATTACHMEXT. [§ 252. §252. Non-i'csident i)artner. — The non-residence of a co- debtor is no ground for attaching the resident debtor's prop- erty;^ nor that of a co-contractor for attaching both con- tractors' property ; - but the residence of one contractor within the state will not shield the property or interests of his co- contractor, living out of the state, from attachment.' In West Virginia a creditor can give no advantage over other creditors b}^ attaching partnership property, except as to the interest of a non-resident partner.* In Mississippi, under the code of 1892, attachment will lie against a non-resident partner, though the other members of the firm are residents.^ "Whether partnership eifects are attachable in a suit against one member of the lirm, who is a non-resident, upon a debt contracted by the partnership, depends upon the character of the obligation: whether it is joint or joint and several. If the obligation sued upon is joint, partnership effects are not attachable in such suit;" but if it is joint and several, the rule is otherwise." It is joint by the law of partnership without statutory modification: so all the partners must be sued in order to attach property of the firm. In a suit against two joint-debtors, attachment will hold only when the affidavit is sufficient against both.^ It has been held that if both are residing out of the state, and the cred- itor finds property of one of them within the state, he may attach it as that of a non-resident debtor without mentionino: the co-obligor.^ Any one of several joint-debtors is liable to be sued by attachment.^'' Joint and several debtors may. be sued by attachment singly or all together.^^ N. H. 361 ; Clement v. Little, 43 id. ' Green v. Pyne, 1 Ala. 235 ; Conk- 563 ; Hill v. Wiggins, 31 id. 292. lin v. Harris, 5 id. 213. See Chip- 1 Mills V. Brown, 2 Met (Ky.)404; man's Case, 14 Johns. (N. Y.) 217; Duncan v. Headlej-, 4 Bush, 45. Smith's Case, 16 id. 102 ; Mersereau v. 2 Taylor v. McDonald, 4 Ohio, 149. Norton, 15 id. 179; Bobbins f. Cooper, 2 Jefferson County r. Swain, 5 Kan. 6 Johns. Ch. 186; Mills v. Brown, 2 376. Met. (Ky.) 404. 4 Andrews v. Mundy, 36 W. Va. 23. § Hamilton v. Knight, 1 Blackf. 25 ; 5 Cohen v. Gamble (Miss.), 15 So. Bartle v. Coleman, 6 Wheat 475 ; 236 ; Miss. Code of 1892, § 127. See Hadley v. Bryars, 58 Ala. 139. Id., § 2353. 9 Dobbs v. The Justices, 17 Ga. 624. « Wiley V. Sledge, 8 Ga. 533 ; Wal- lo Austin v. Burgett 10 la. 302. lace V. Galloway, 5 Coldw, (Tenn.) n Matter of Smith, 16 Johns. 103; 510 ; Barber v. Robeson, 15 N. J. L. 17. Hadley v. Bryars, 58 Ala. 139. § 253.] PARTNERSHIP PROPERTY, ETC. 185 Though a partnership may have been domiciliated in a state, and there liable to be sued on ordinary process, yet, upon its dissolution, its assets may be attached for a debt of the firm, if those lately composing it are non-residents, provided they are still the owners of the assets.^ If one partner resides in the state, the non-residence of his copartner is no ground for an attachment bill in chancery against both partners and against the effects of both.^ If one partner has absconded, attachment would hold against his in- terest only.^ If all the partners of a firm have absconded, attachment lies against the property of the firm.* In a suit against an insolvent firm, the interest therein of an absconding partner was attached ; and the attachment was attacked on the ground that the absconding partner had no attachable interest. The court refused to vacate the attach- ment on that ground.^ Of course the defendant had no cause to attack the proceeding if nothing of his had been molested. A writ of attachment may be issued against the property of a domestic corporation in the county of its location at the suit of a resident just as though it were a natural person ; ^ and against that of corporations not existing under the law of the state where it is attached.'' § 253. Property in common not like that in lyartnersliip. — A debtor's property is none the less liable for his debts by reason of its being a part of something held in common. If the thing so held is indivisible, the part owned by the defend- ant may be levied upon as an undivided interest. If it is divisible the officer would be obliged so to make the levy, unless the defendant and the other owners in common should consent to a separation of the seizable portion. Though part- nerships, particularly commercial partnerships, are governed by usages peculiar to themselves, in some respects, with re- iLobdell V. Bushnell, 24 La. Ann. 4 Leach v. Cook, 10 Vt. 239. 295. In Indiana it was held that 5 Buckingham v. Swezey, 25 Hun, when the suit is against a partner- 84. ship composed of non-residents, their ^ Michigan Dairy Co. v. Runnels, property is attachable. Voorhies v, 96 Mich. 109 ; Howell's Stat, g§ 7986, Hoagland, 6 Blackf. 232. 8137. - Wallace v. Galloway, 5 Coldw. " Phila. etc. R Co. v. Kent, etc. R. (Tenn.) 510. Co., 5 Houston (Del.), 127. 3 Bogart V. Dart, 25 Hun, 395. 186 LIABILITY TO ATTACHMENT, [§ 254. gard to the attachment of a partner's interest in a firm, the interest of the defendant in property held in comraon may readily be reached by an officer in executing a writ of attach- ment.^ In making the levy on the defendant's part of intermingled property, it may be necessary to take and detain the whole for a reasonable time.- The inconvenience and even loss that may thus occur to the joint owners with the defendant are incident to the attachment, and ordinaril}'' neither the officer nor the attaching creditor is pecuniarily responsible therefor.^ If mortgaged chattels are attachable, the attachment must be laid in the hands of the mortgagees;^ yet the officer may take and temporarily detain them for the purpose of making an inventory.'' The attachment is subject to the lien, and the mortgagees retain the property. § 254:. Froi)crUj of married woman who is sole trader. — Whether a married woman's property may be attached de- pends upon the character in which she holds it. If she is doing business as a sole trader, her property is liable for the debts which she contracts. When she does business on her separate account, and her property has been legally set apart from that of her husband, and this separation of business and property is made known to the public by public records, that which belongs to her or is earned by her ought not to be liable, to attachment or execution for her husband's debts.® But, being a married w^oman, she is presumed to be doing business under her husband's direction, and what she has and what she makes is presumably liable for the husband's debts, 1 Veach v. Adams, 51 Cal. 609 ; all by claiming the whole. Blotchy v. Bernal v. Hovions, 17 id. 541 ; Sears Caplan (Iowa), 59 N. W. 204. V. Gearn, 7 How. Pr. 383; Stouten- 3Smokey v. Peters, 66 Miss. 471; burgh V. Vandenburgh, id. 229 ; Car- Reed v. Howard, 2 Met 36 ; King v. ter V. Jarvis, 9 Johns. 143 ; Gall v. Hubbell, 42 Mich. 597 ; Sibley v. Fer- Hinton, 7 Abb. Pr. 120; Walker v. nie, 22 La. Ann. 163; Lawrence v. Fitts, 24 Pick. 191 ; Buddington v. Burnham, 4 Nev. 361 ; Remington v. Stewart, 14 Ct. 404 ; Marion v. Faxon, Cady, 10 Ct 44. See Melville r. Brown. 20 id. 486. See Frost v. Kellogg, 23 15 Mass. 82 ; Copp v. Williams, 135 Vt 308. id. 401. - Intervenors claiming goods in- ^ Anderson v. Doak, 10 Ired. 295. termixed with other goods may lose ^ King v. Hubbell, 42 Mich. 597. 6 Arrington v. Screws, 9 Ired. 42. § 255.] PROPERTY HELD BY THIRD PERSONS. 187 unless she has statute protection or the presumption is re- moved in some legal way.^ When both husband and wife are non-residents, and the action is against both, attachment may lie.- And because her status as to place is governed by that of her husband, she is deemed to reside in the state of his residence, and her prop- erty is amenable to attachment as that of a non-resident when the suit is against both her and him, though she may actually live in the state where the suit is instituted and the attach- ment sued out.^ III. Property Held by Third Persons. § 255. Temjmrary detention. — Property of the defendant lawfully in the possession of third persons, though it may be subject to garnishment, cannot be actually seized by the sher- iff under a writ of attachment and taken from such persons.^ Under statute authorization some such pro|3erty may be tem- porarily taken for the purpose of making an inventory or of separating it from other attachable things which the third possessor does not claim to hold, but there can be no detention 1 In Massachusetts a married favor of wife. Troy v. Sai-geant, 133 woman doing business on her own Mass. 408. account must file a certificate of the - In Alabama, under the act of fact with the town clerk, in order to 1846, to subject the wife's separate avail herself of the statute there, estate to the satisfaction of a debt which exempts the property of such contracted by her before marriage, from liability for the husband's debts, though the estate was secured to her Act of 1862, ch. 198, g 1 ; Chapman by ante-nuptial contract. Crocker v. V. Briggs, 11 Allen, 546. Held appli- Clements, 23 Ala. 296. cable to personal property only. Ban- 3 Baldwin v. Flagg, 43 N. J. L. 495 ; croft V. Curtis, 108 Mass. 47. Carry- Hackettstown Bank v, Mitchell, 28 ing on separate business includes id. 516 ; Hunt v. Hunt, 72 N. Y. 217 ; farming as well as trading. Snow v. Greene v. Greene, 11 Pick. 410; Ross Sheldon, 126 Mass. 332 ; Chapman v. Edwards, 52 Ga. 24, held that the V. Foster, 6 Allen, 136 ; Feran v. Ru- attaclxment does not lie against a dolphsen, 106 Mass. 471. See Proper lunatic and his committee, though V. Cobb, 104 Mass. 589. It includes non-residents. keeping a boarding-house : and debts ^ Hanchett v. Bank, 25 HI, App. 274. due to her for board may be attached Money collected by an attorney at by her husband's creditors if she has law is not attachable as his client's — not filed the certificate. Harnden v. not being identified. Maxwell v. Gould, 126 Mass. 411 ; Dawes v. Ro- McGee, 12 Cusli. 137. dier. 125 id. 421. Insurance policy in ISS LIABILITY TO ATTACHMENT. [§ 256. of such property to await the judgment in the attachment suit. And whatever is lawfully in the possession of a lien- holder cannot be directly attached unless the lien be first removed by payment or otherwise.^ The attaching creditor cannot dispossess third persons of their possession for the same reason that the debtor cannot ; he acquires no greater right to take property under his writ, through the officer, than the defendant has in his personal capacity.'- § 25G. Uoiihtf id rUjlit of property. — If there is a question whether the ownership and rightful possession is in the vendor or vendee, the attaching creditor's right to seize and take pos- session depends, of course, upon the settlement of that ques- ition in any given case. If the vendor is his debtor against whom he proceeds in an attachment suit, the property sold cannot be attached after actual or constructive delivery to the vendee. If the vendee is the debtor of the attaching creditor, the property sold cannot be attached in a suit against that debtor unless he has acquired ownership with the right of pos- session. Goods ill transitu afford illustrations of such ques- tions: the attachability of propert}'' alwa3's turning upon the right of possession on the part of the debtor in the attach- ment suit.^ Even if there has been delivery of property to the vendee, or agreement to sell when there has been no de- 1 Williams v. Morgan, 50 Wis. 548 ; Tucker, 1 Pick. 389 ; Sargent v. Carr, Perry v. Williams, 39 id. 339 ; McNeill 13 Me. 396 ; Henry v. Quackenbush, V. Glass, 1 Martin, N. S. (La.) 261; 48 Mich. 415; Lyle v. Barker. 5 Bin. Skillman v. Bethany, 2 id. 104 ; Lam- 457 ; Moore v. Murdock, 26 Cal. beth V. TurnbuU, 5 Rob. (La.) 264; 514; Rix & Stafford u Silknitter, 57 Carpenter v. Dresser, 72 Me. 377 ; Iowa, 265 ; Seymour v. Newton, 105 Brown well v. Carnley, 3 Duer, 9; Mass. 272; Inslee v. Lane, 57 N. H. Stearns i\ Dean, 129 Mass. 139; Schep- 454; Hartford r. Jackson, 11 id. 145. ler V. Garriscan, 2 Bay, 224 ; Mitchell - Rix v. Silknitter, 57 Iowa, 265 ; V. Byrne, 6 Rich. 171; Thompson v. Stephenson u W^alden, 24 id. 84 ; Oli- Rose, 16 Conn. 71 ; De Wolf v. Dear- ver v. Lake, 3 La. Ann. 78; Hough- born, 4 Pick. 466 ; Rodega v. Perker- ton v. Davenport, 74 Me. 590 ; Round- son, 60 Ga. 516; Wolfe v. Crawford, stone v. Holt (Colo. App.), 37 P. 35. 54 Miss. 514; Townsend v. Newell, 14 ^ Wolfe v. Crawford, 54 Miss. 514; Pick. 332; Robinson v. Mansfield, 13 Scofield r. Bell. 14 Mass. 40; Meldrum id. 139; Picquet v. Swan, 4 Mason, f. Snow, 9 Pick. 441 ; Hatch t*. Bailey, 443; Haven v. Low, 2 N. H. 13; 12 Cush. 27; Hatch t). Lincoln, id. 3L Morse v. Hurd, 17 id. 246 ; Badlam v. §§ 257, 258.] PROPERTY HELD BY THIRD PERSONS. 189 livery, it is not attachable as his while some condition stands unperformed, the doing of which is essential to his title.^ §257. Property held hy lessee, etc. — Property not owned, but held by a tenant, lessee, or mere borrower, cannot be at- tached under a writ directed against the property of the per- son thus temporarily having possession.- This is too plain for comment; but the facts proved in suits with respect to pecul- iar contracts between landlords and tenants, lenders and bor- rowers, etc., are often complicated, and of such character as to throw the real ownership into doubt. One cannot antici- pate such complications so as to subject them to any more definite rule than that broadly given in the first sentence of this paragraph.^ If an officer attaches the tenant's goods in a leased building, and the tenant sells his unattached leasehold, and the purchaser sublets to the officer, the latter's possession is presumed to be within the knowledge of junior attachers and subsequent purchasers. They are also deemed to have notice of the landlord's rights.* In Alabama the landlord may enforce his lien for rent by attachment, notwithstanding a cession to creditors by his insolvent tenant.^ The proceed- ing must be against the propert3Miable for the rent — not other property.^ § 258. Fixtures. — As between landlord and tenant, fixtures are movable by the latter or not, in many cases, according to the intention of the parties ; " and, if movable by him, they may be attached as personal property in a suit against him.^ 1 Robinson v. Mansfield, 13 Pick. Waddell (la.), 56 N. W. 650 ; Shell- 139 ; Townsend v. Newell, 14 id. 332 ; hamer v. Jones (la.), 54 N. W. 363 ; McFarland v. Farmer, 42 N. H. 386 ; Bray v. Wise, 82 la. 582 ; 1 Jones on Buckmaster v. Smith, 22 Vt 203 ; Liens, ^"g 698-9. Woodbury v. Long, 8 Pick. 543. See ^ Le Doux v. Johnson (Tex.), 23 S. Steen v. Harris, 81 Ga. 681. W. 902. 2 Morgan t'. Ide, 8 Cush. 420; Chan- nicKleroy v. Cantey, 95 Ala. 295. dler V. Thurston, 10 Pick. 205 ; Lewis 6 Stephens n Adams, 93 Ala. 117. V. Lyman, 22 id. 437; Coe v. Wil- As to the attachment of a crop for son, 46 Me. 314 But see Hutchinson rent, see Giddens v. Boiling, 93 Ala. V. Bidwell (Oreg.), 33 P. 560, as to cor- 92. po ration property leased to stock- " Morey v. Hoyt, 63 Ct. 543 (see holders. Capen v. Peckham, 33 id. 95) ; Lina- 3 The resident owner of a farm has han v. Barr, 41 id. 473; Ii-on Co. v. no lien on the live-stock of his resi- Black, 70 Me. 473 ; Hopewell Mills v. dent tenant for pasturage, as such Bank, 150 Mass. 519. tenant is not a herder. Wright v. ^ Morey v. Hoyt, supra; McNally 190 LIABILITY TO ATTACHMENT. [§ 259. The attaching creditor has no greater right than the tenant; and, as a general rule, the latter cannot remove fixtures after his lease has expired,^ Permanent fixtures belong to the realty to which they are fastened and are not attachable as personalty.^ lY. Property in Custodia Legis.' § 259. When not attachaMe.— The rule that third persons, lawfully possessing, cannot be disturbed, extends to officers who hold property in an official capacity; to sheriffs and m-ar- shals who hold upon attachments ah-eady executed or under other seizure; to all whose possession is such that the prop- erty held is in the custody of the law.* Though he cannot disturb the possession already acquired, an officer may levy on goods in the custody of another officer, who must indorse the second attachment on the first.' When property in the custody of the law has been reduced to money, or when money is in such custody however it may have reached the possession of the lawful official custodian, it is not attachable.^ V. Connolly, 70 Cal. 3; Cooper v. Johnson, 143 Mass. 108; Heflfner v. Lewis, 73 Pa. St. 302; Oberton v. Williston, 31 id. 155; Lamphere v. Lowe, 3 Neb. 131 ; State v. Bonham, 18 Ind. 231. 1 Burke v. HoUis. 98 Mass. 55 ; Gaf- field V. Hapgood, 17 Pick. 192 : Ding- ley V. Buffum, 57 Me. 381 ; Beers v. St. John, 16 Conn. 332; Torrey v. Burnett, 38 N. J. L, 457; Carlin v. Ritter, 68 Md. 478; Davis v.- Moss, 38 Pa. St. 346; Haflick v. Stober, 11 Ohio St. 482 ; Youngblood v. Harris, 68 Ga. 630 ; Whipley v. Dewey, 8 Cal. 36; Kutter v. Smith, 2 Wall. 491; Pugh V. Arton, L. R 8 Eq. 626; Weeton v. Woodcock, 7 Mees. & W. 14 ; Minshall v. Lloyd, 3 id. 450. 2 Stout V. Stoppel, 30 Minn. 58. 3 §§ 393-411, 428-443. < Powell V. Rankin, 80 Ala. 316: Paradise v. Farmers' and Merchants' Bank, 5 La. Ann. 710; State ex reL etc. V. Ellis. Judge, 45 id. — ; Hardy V. Tilton, 68 Me. 195 ; Walker v. Fox- croft, 2 id. 270 ; Strout v. Bradbury, 5 id. 313 ; Odiorne v. Colley, 2 N. H. 66 ; Moore v. Graves, 3 id. 408 ; La- throp V. Blake, 3 Fos. 46 ; Burroughs v. Wright, 16 Vt 619 ; West River Bank V. Gorham, 38 id. 649 ; Watson v. Todd, 5 Mass. 271 ; Vinton v. Brad- ford, 13 id. 114; Thompson v. Marsh, 14 id. 269 ; Burlingame v. Bell, 16 id. 318; Robinson v. Ensign, 6 Gray, 300 : Benson v. Berry, 55 Barb. 620 ; Reed v. Sprague, 34 Ala. 101 ; Har- binson v. McCartney, 1 Grant, 172; Wendell v. Pierce, 13 N. H. 502; Beers v. Place, 36 Conn. 578 ; Roberts V. Dunn, 71 IlL 46 ; Voorhies v. Ses- sions, 34 Mich. 99 ; Levy v. Lehman, 38 La. Ann. 9. 5 White V. Culter, 12 HI. App. 38; Acts of 1874, ch. 77, § 51. 6 Pierce v. Carleton. 12 III. 364; Dawson v. Holcomb, 1 Ohio, 275; §§ 2G0, 2G1.] PROPERTY IN CUSTODIA LEGIS. 101 § 260. It has been held that property assigned is ^?^ custodia legis and therefore not attachable on the ground that the as- signment was fraudulent and void ;^ and this was ruled, though the assignee had not yet come into possession of the property .- It has been said that the property of an insolvent, in the hands of a creditor " seeking to become a preferred creditor by mortgage," is in custodia legis, so that if it be sold under attachment in a suit against the insolvent, such creditor would have his action against the officer for converting mortgaged property.^ § 261. When attacluiMe. — The inviolability of property or money held by officers continues till it is in a condition to be delivered or paid over. Then it may be attached in a suit against the payee by garnishing the sheriff or officer in pos- session. If attached property has been sold pendente lite, and the attachment has been dissolved subsequently, the proceeds may be attached in the sheriff's hands in a suit against the de- fendant ; they may be attached on the same cause of action as before, it is said.'' And it has been held that money paid into court to await further order is attachable in a suit against the party to whom it is due.^ Not, however, while it is awaiting judicial order. The plaintiff's interest in a fund paid into court during litigation to await the result of a suit for dam- ages then pending against him was held attachable.^ The plaintiff was a non-resident insolvent. Attached property ceases to be in the custody of the law First u Miller, 4 Bibb, 311; Redclick Wash, 333. Contra, Lapp v. Van V. Smith, 4 111. 451 ; Thompson v. Norman, 15 Fed. 406. Brown, 17 Pick. 462 ; Clymer v. Willis, 2 id. ; Mansfield v. First Nat. Bank, 3 Cal. 363 ; Turner v. Fendall, 1 Cr. 5 Wash. 665. Compare Benham v. 117; Crane v. Freeze, 1 Har. 305; Ham, 5 id. 128; Hahn v. Salmon, 20 Prentiss v. Bliss, 4 Vt. 513 ; Jones v. Fed. 801 ; Garreton v. Brown, 26 N. Jones, 1 Bland, 443 ; Dubois v. Du- J. K 425 ; Van Keuren v. McLaugh- bois, 6 Cow. 494 ; Burrell v. Letson, 1 liu, 21 N. J. Eq. 163. Strobhart, 239; Conant v. Bicknell, 3 straw v. Jenks, 6 Dak. 414 ; Citi- 1 D. Chipmau, 50 ; Farmers' Bank zens' Bank v. Jenks, id. V. Beaston, 7 Gill & J. 421 ; Blair v. i Roddy v. Erwin, 31 S. C. 36. Cantey, 2 Speers, 34; McKinney v. 5 Trotter v. Lehigh, etc. Co., 41 N. Purcell, 28 Kan. 446. J. L. 227. 1 Hamilton Shoe Co. v. Adams, 5 ^ Trotter v. Zinc and Iron Co., 42 N. J. Eq. 456. 192 LIABILITY TO ATTACHMENT. [§ 2G2. when it has been bonded to try title.^ But when replevied from an attaching officer, it continues to be in such custody while the replevin suit is pending-.- But if attachment and replevin suits are coUusively brought to put property out of the reach of creditors, it is not in custody of the law and may be attached by other creditors.* Y. Pkoperty Assigned,'* § 262. Precluding subsequent attacliment. — A federal court has held that assigned property is not in custodia legis and is liable to attachment in the hand of the assignee; that is, liable when the assignment has been made voluntarily by the debtor.* But an assignment in good faith for the benefit of creditors, made according to law, precludes subsequent attachment." It is said that property assigned cannot be attached even for the purchase-price ; ^ but the vendor's lien cannot be dislodged. Nor can the builder's lien.^ When the assignee has sold the property pursuant to the surrender, the proceeds are not attachable in his hands by one of the creditors;^ not even on the ground that the in- solvent assignee has been found guilty of fraud, so that his property is as though never surrendered ; for the conviction of fraud does not vitiate the cession to creditors who have accepted.^^ But if the appointment of a receiver to take cus- tody of a debtor's propert}'- is void, the property may be at- tached in his hands." Yet a writ of prohibition, to prevent the receiver from taking possession, will not be granted on the ground that the applicant desires to attach.^- iFrieberg v. Elliott, 64 Tex. 367, Gumble v. Andrus (La. Ann.), 13 So. 2 First N. Bank v. Gerson, 50 Kan. 633; Wells v. Lamb, 18 Neb. 352; 582, 589, Blakely v. Smith (Ky.), 26 S. W, 584. 3 Id, '^ Boltz V. Eagon, supra. *See §§ 413-427, 840-847. 8 Abbott v. Davidson (R L), 25 A. 5 Lapp V. Van Norman, 19 Fed. 839. 406, After a receiver is appointed 9 McAllaster v. Bailey, 14 N. Y. the property cannot be attached in Civ. -Proc. Rep. 401. his hands. Regenstein v. Pearlstein, 1"^ Gumble v. Andrus, supra; La, 30S. C. 192; Clinkscales u. Manuf ac- Civ. Code, arts. 2170. 2175; Hamil- turing Co., 9 id. 318. ton Shoe Co. v. Adams, 5 Wash. 333. 6 Boltz V. Eagon, 34 Fed, 521 ; n State ex rel v. Court (Wash.), 34 Mitchell V. Dalton, 44 La. Ann. 823 : P. 430. Bean v. Patterson, 4 McCrary, 179; ^'^Id. § 203.] PKOPERTY ASSIGNED. 193 It is not a conclusive sio:n of fraud that a buildino: con- tractor receives payment as it falls due, from time to time, after he has assigned his right,^ though it is a suspicious cir- cumstance when he is indebted. The rule is that no interest be retained. The assignment of partnership property by a firm does not preclude a creditor from attaching, if a part of the property was retained by the firm, and the attaching cred- itor did not accept the assignment.^ § 263. Sale treated as assignment — A sale, attacked as fraudulent on the ground that it transferred all the debtor's property and therefore ought to be treated as a general as- signment for the benefit of all creditors, was held to give no ground to the complaining creditor for attaching the property in the hands of the transferee.^ A sale, fraudulent on the part of the vendor as to his creditors, may convej^ title to the vendee, so that the price — not the property — would be at- tachable.'* Fraudulent assignment will not prevent subsequent attach- ment, as a general rule.^ What constitutes such an assign- ment is usually discernible from the act itself or attendant facts. Preference to certain creditors over others is a fraud in some states ; and in others (as Wisconsin) where preference is allowed,^ it may yet be done fraudulently; as when a firm assigns with preference to a member of it as creditor of the firm.'^ Preference made by a non resident is a ground for at- taching in some states (as in South Carolina).^ 1 Abbott V. Davidson (R. I.), 25 A. 5 Globe Woolen Co. v. Carhart, 67 839. How. Pr. 403. - Kennedy v. McKee, 142 U. S. 606 ; 6 Hosea v. McClure, 42 Kan. 403 ; Harrisv. Russell, 93 Ala. 59; Solomon Gore v. Rav, 73 Mich. 385; Britton V. Smith, 16 Golo. 293. v. Boyer, 27 Neb. 522. 3 Avery v. Perry Stove Co. (Ala.), ''Keith v. Armstrong, 65 Wis. 228; 11 So. 417; Hatchett v. Blauton, 72 Vernon r.. Upson, 60 id. 418; Wil- Ala. 423; Espy t\ Comer, 80 id. 333. lis v. Bremner, id. 622; David v. As to preference among creditors by Birchard, 53 id. 492 ; McLinden v. mortgaging while insolvent, see the Wentworth, 51 id. 170; Cotzhausen learned opinions in the case of Jaf- u Judd, 43 id. 213; Viles v. Bangs, fray v. Wolfe (Ok.), 33 P. 945. 36 id. 131. Debtors may instigate * Dicken v. Hays (Pa. St.), 7 A. 58. attachment proceedings, in Wiscon- Compare Burke v. Johnson. 37 Kau. sin, against their own property for 337. the benefit of creditors — preferring 8 National Bank v. Stelling, 32 S. C. 102. 13 194: LIABILITY TO ATTACHMENT. [§§ 2G-1-, 205. " The distinctive test between an assignment and a sale, where another creditor is to be paid off, is that in the former case such other creditor is to receive some of the property or its proceeds, and in the latter the creditor to whom title is passed takes for himself the whole property, stipulating to pay the other creditors out of his own means, and not out of the property or its proceeds." ^ § 264. As an attaching creditor has no greater right to the property attached than his debtor has, he cannot successfully claim a fund assigned by the latter on the ground that the holder of the fund had no notice of the assignment before the levy of the attachment.- When the debtor has assigned a judgment, so that he no longer has any property in it, his creditor cannot attach it.' If an attaching creditor presents his claim to the defend- ant's assignee for allowance, without reserving his attachment rifiht, he abandons his lien.^ An attachment was held to be dissolved by the defendant's surrender as an insolvent on the day of the attachment and a judicial order to stay proceedings.^ § 265. Property of non-residents. — In some states a differ- ence is recognized between the property of a resident and a non-resident debtor with reference to the effect of an assign- ment upon a previous attachment.*' In Penns^^lvania a recorded assignment to creditors by a non-resident debtor ranks above a subsequent judgment against him in attachment, in favor of another non-resident.' By such assignment the title to the property passes.^ certain creditors in this way. First J., and cases cited by him) ; Stoller N. Bank v. Greenwood, 79 id. 269; v. Coates, 88 Mo. 515; Gutzwiller v. Landaner v. Yietor, 69 id. 434. Lackman, 23 id. 174 ; Harrison v. 1 Johnson v. Adams (Ga.), 17 S. E. Mock, 10 Ala. 185; Jones v. Tiltou 898. The court adds : " The distinc- (Mass.), 1 N. E. 741 ; Hone v. Heu- tion reconciles the present case with rique, 13 Wend. 240; Frierson r. Powell V. Kelly, 82 Ga. 1." And see Branch, 30 Ark. 443. Stillwell r. Grocery Co., 88 id. 141 ; a Cerf v. Oaks, 59 Cal. 132. Kiser i'. Dannenbei-g, id. 541. ^ First N. Bank v. Lumber Co., 91 2 Long Branch, etc. v. Davenport Tenn. 12. (N. J. Eq.), 24 A. 922. • Wing r. Bradner (Pa.), 29 A. 291 ; 3 Knapp V. Standley, 45 Mo. App. Purd. Dig., p. 828 ; Bacon v. Home, 264. , 123 Pa. St 452. * Drew Glass Co. t\ Baldwin, 27 * Wing v. Bradner, supra; Loug v. Mo. App. 44 (see dissent by Ellison, Girdwood, 150 Pa. St 413 ; post, § 266. ^1 2G6, 267.] PROPERTY CONSIGNED. 195 Assignment by the debtor to his creditors does not incapaci- tate him from traversing an affidavit against him.^ The assignee of a firm was held not liable for not dismiss- ing an attachment case which had been instituted by the firm and which was alleged to have been settled, as he had shown diligence to ascertain the truth of the allegation.^ §266. Foreign assignment. — Comity does not require a state to respect a foreign assignment repugnant to its own laws; that is, if the assigned property is found within the state, it may be attached notwithstanding such assignment in another state. For instance: Creditors in Xew York can at- tach property found therein belonging to a debtor who has made such an assignment in another state as is inhibited by the laws of Xew York if made in Xew York.^ The principle is recognized and enforced in other states.* YI. Property Consigned. § 26T. Carrier'' s possession. — Goods sold but not paid for, consigned by the vendor to the vendee, are not attachable as the property of a consignee before either actual or construct- ive delivery.'^ The right of stoppage in transitu, before the goods come into the possession of a purchaser who has become 1 Keith t\ Armstrong, 65 Wis. 225. v. Geyer, 13 Mass. 146; Tipsey v. Compare Howitt v. Blodgett, 61 id. Thompson, 1 Gray, 243 ; Boston Iron 376. See Curtis v. Wortsman, 26 Co. v. Boston Works, 51 Me. 585; Fed. 36, and Foster v. Higginbotham, Upton v. Hubbard, 28 Ct. 274 ; Bierne 49 Ga. 264, as to traverse by a claim- v. Paton, 17 La. 590 ; Tatum v. ant after judgment against the de- Wright, 7 La. Ann. 358 ; Chewing v. fendant. Johnson, 5 id. 678; Harper i\ Stans- - Gurley v. Tompkins, 17 Colo. 437. brough, 2 id. 337 ; Richardson v. 3 Barth v. Backus (N. Y.), 35 N. E. Leavitt, 1 id. 430 ; Fellows v. Com- 425 ; Waite, In re, 99 N. Y. 433 ; Kelly mereial Bank, 6 Rob. (La.) 247 ; Saul V. Crapo. 45 id. 87 ; Willets v. v. His Creditoi's. 5 Martin, N. S. (La.) vVaite, 25 id. 577 ; Johnson v. Hunt, 569 ; Oliver r. Towns, 2 id. 93. See 23 Wend. 87 ; Holmes v. Remson, 20 g 265. Johns, 229. See Ockerman v. Cross, ^ Morris t'. Shryock, 50 Miss. 590 ; 54 N. Y. 29. Allyn v. Willis, 65 Tex. 65 ; Kittridge 4 May V. Bank, 122 111. 551; Hen- v. Sumner, 11 Pick. 50; Holly v. derson v. Schaas, 35 111. App. 157 ; Huggeford, 8 id. 73 ; Buckley r. Fur- Rhawn v. Pearce, 110 111. 350; Ha5'er niss, 15 Wend. 137; Schwabacher v. V. Alexander, 108 id. 335 ; McClure Kane, 13 Mo. App.^ 126. V. Campbell, 71 Wis. 350 ; Ingraham 19G LIABILITY TO ATTACHMENT. [§§ 268, 2G9. bankrupt or embarrassed in business, remains in the vendor after the consignment. It is not necessary to the existence of this riofht that the vendee should have made a surrender in court as an insolvent ; it is sufficient if he is unable to pay his debts. The consignor may countermand delivery and re- sume possession for the reason that the other contracting party is unable to perform, and he would be bereft of both the goods and their price were he not allowed to regain the former. Though the carrier's possession is ordinarily that of the con- signee, yet it is not actual custody by the latter, and it does not take away the consignor's right of stoppage in transitu. Though the case would be different were the goods shipped in payment to the consignee, so that the consignor could have no further claim upon them, yet, in the case above suggested, the goods are not attachable as the property of the consignee before delivery to him by the carrier, and trover will lie against an attaching officer as a trespasser who seizes them as such.^ § 268. Carrier's lien. — If, notwithstanding the existence of a lien upon goods (such as that of a carrier for freight, with the right of possession till the lien shall be removed), an officer attach them, the levy may be legal upon the condition that the attachment is to be dissolved and the goods restored to the carrier or other lawful custodian, if the freight or lien debt is not paid within some fixed time. The officer cannot, if sued for trespass, set up the invalidity of the attachment by reason of such lien.^ The common carrier is entitled to freight and other lawful charges before goods in tj'ansitu can be legall}^ seized and taken from his possession in a suit ao-ainst their owner.* If the attachment of such goods were authorized by statute, the carrier's lien would still rest upon them, and the creditor's right would be subordinate § 269. Preliminaries to delivery. — Though there may be no difficulty about payment upon delivery, yet if, by the terms of the contract, goods must be weighed, measured, selected, etc., before delivery, the sale is not complete before the pre- 1 Inslee v. Lane, 57 N. H. 454, and 2 Stearns v. Dean, 129 Mass. 139. cases cited therein. 3\Volfe v. Crawford, 54 Miss. 514. ^ 270.] PKOPERTY CONSIGNED. 197 liminaries are observed; and, until delivery, they are, of course, attachable as the property of the vendor and not as that of the vendee.^ If, however, the contract is complete, and the goods are in process of delivery b}?" the vendor as agent of the vendee, and the ownership has really changed from the former to the latter, they are not attachable as the property of the vendor.' When the property sold is not actu- ally delivered, but a bill of sale is given to the purchaser, for a valid consideration, the title does not thus pass so as to pre- vent the attachment of the property in a suit against the seller.^ The sale would be good between the contracting par- ties; but without delivery it is not so as against an attaching creditor of the vendor. If, under such circumstances, the purchaser should perform some act of ownership, or the seller should agree to keep the property for the purchaser, as his agent, the transfer would be complete.* If the property sold is in the custody of a third person, and notice of the sale is given to him, and he continues the custody as the agent of the purchaser, the transfer would be complete.'^ §270. Property delivered hut not iKiid for. — The vendee who has had goods delivered to him which he has bought in good faith but has not paid for will be presumed the owner, so that an attaching creditor may seize them ; and should the vendors attempt to regain them, they must allege and prove fraud on the part of the purchaser.^ But they cannot attach 1 Smart v. Batchelder, 57 N. H. 141 ; in a suit against the vendor. Russell Prescott V. Locke, 51 id. 94 ; Jenuess v. O'Brien, 127 Mass. 349. V. Wendell, id. 63 ; Messuer v. Wood- ^ Derapsey v. Gardner, 127 Mass- man, 22 id. 172 ; Warren v. Buck- 381 ; Carter v. Willard, 19 Pick. 1 ; minster, 24 id. 336 ; Foster v. Ropes, Shumway v. Rutter, 7 id. 56 ; Pack- 111 Mass. 10; Riddle v. Varnum, 20 ord v. Wood, 4 Gray, 307; Rourke Pick. 280; Rugg v. Minett, 11 East, v. Bullens, 8 id. 549; Veazie v. Soni- 210 ; Wallace v. Breeds, 13 East, 522. erby, 5 Allen, 280. -'Hobbs V. Carr, 127 Mass. 532; 4 ingalls u Herrick, 108 Mass. 351 ; Leonard v. Davis, 1 Black, 476 ; CJjapraan v. Searle, 3 Pick. 38. Macomber v. Parker, 13 Pick. 175; ^Tuxworth v. Moore, 9 Pick. 847; Legg V. Willard, 17 id. 140 ; Riddle BuUard v. Wait, 16 Gray, 55 ; Thorn- V. Varnum, 20 id. 280; Stinson v. dike v. Bath, 114 Mass. 116; Russell Clark. 6 Allen, 340; Ingalls v. Her- v. O'Brien, 127 id. 349. rick, 108 Mass. 351. What will con- ^Am. Ex. Co. u Smith, 57 Iowa, stitute a symbolic delivery so as to 242. See Devoe v. Brandt, 53 N. Y. perfect the title of the vendee and 462; Scramragel v. Whitehurst(Ala.), render it good against an attachment 15 So. 611. lt)8 LIARILITY TO ATTACHMENT. [§ 271. and 3^et claim to own the goods. Even if the purchaser has bought them with the intention of not paying for them but making an assignment thereof in favor of preferred creditors who are not the vendors, the latter cannot attach the goods as the property of the purchaser, and at the same time set up that the sale was void because of fraud. They could disclaim the sale and recover the goods; but they could not employ both remedies.^ When goods have been sold conditionally, with the title re- maining in the vendor till resale by the purchaser, they are not attachable as the property of the purchaser, though his creditors have had no notice of the condition.^ When the de- fendant debtor is not entitled to possession, but has an inter- est in property, the interest may be attached, but not the property itself.* It has been held that the vendor of goods may stop them in transitu even after they have been attached as the property of the vendee; that the vendor has a right to the proceeds even if the goods have been sold in the attach- ment suit.* § 271. Property consif/ned in payment. — The consignor who ships goods to his creditor in payment parts with his owner- ship when he delivers them to the carrier; the possession by the latter is that of the consignee, and the goods are not at- tachable as the property of the consignor, even though he has retained a bill of lading.^ Though such evidence of owner- ship is like commercial paper, transferable by delivery; and though ordinarily a shipper who retains the bill of lading in his hands has control of the goods shipped so as to be able to put them into the legal possession of any one by giving him, or sending to him, such evidence of ownership, yet when the 1 O'Donald u. Constant, 82 Ind. 212. ner, 77 Tex. 311. Ore delivered to 2 Thornton v. Cook, 97 Ala. 630 ; merchants is not attachable as prop- Buford V. Shannon, 95 id. 205 ; Ull- erty of the mine-owners who claim man v. Myrick, 93 id. 532. no right to it Finding v. Hartman, 3 Coulson V. Bank, 54 Fed. 855, dis- 14 Colo. 596. anguishing Brown v. Bacon, 63 Tex. * Calahan v. Babcock, 21 Ohio St. 597, and Clagett v. Kilbourne, 1 281 ; Kelly v. Deming, 5 Fed. 697 ; Black, 346. Horses sold and left in O'Brien v. Norris, 16 Md. 122 ; Dick- a livery-stable, without actual de- man v. Williams, 50 Miss. 500. livery, belong to the purchaser if put ^ Straus v. Wessel, 30 Ohio St 211, under his control. Floege v. Wied- § 272.] CHOSES IN ACTION. 199 goods have been consigned to pay debt, as above stated, the consignor retains no ownership; and the bill of lading, by being subsequently transferred to another, would not convey the goods. The bill differs from commercial paper in an im- portant feature. It cannot convey a better title than the consignor possesses at the time he transfers it as a symbolic deliver}'' of the property, while commercial paper passes from hand to hand leaving no question as to the right of the trans- fer.i YII. Choses in Action.^ § 272. Evidences of deht. — A mere paper evidencing debt, such as a promissory note, in the hands of a third person for the purpose of enabling him to collect mone}' due the owner of such paper, is not susceptible of being proceeded against as the res in an attachment suit; for, though it belongs to the attachment defenda^nt, it is not the debt of which it gives evi- dence, nor is it propert}'' beyond the value of the mere fabric. The third person having the note in his possession, to collect it for the defendant, is not therefore the debtor of the defend- ant. The fact that he will be the possessor of money when he shall have collected the note does not alter the case, for to be garnishable he must owe money or hold liable property at the time of the service upon him.^ 1 Emery's Sons v. Irviug National 16 id. 341; Andrews v. Ludlow, 5 Bank, 25 Ohio St. 368 (Benj. on Sales, Pick. 28; Francis v. Nash, Hardw. §86-4). 03; Staple v. Bird, Barnes, 214; Mc- 2 i-g 380-386. Carthy v. Goold, 1 Ball & B. 387; 3 Jackson v. Willard, 4 Johns. 41 ; Padfield v. Brine, 3 id. 294 ; Knight Denton v. Livingston, 9 id. 96 ; Handy v. Griddle, 9 East, 48 ; Stewart v. Mar- V. Dobbin, 12 id. 220; Mann v. Ex'rs quis of Bute, 11 Ves. 657; Fitch v. of Mann, 1 Johns. Ch. 231 ; Fletcher White, 5 Ct. 117 : Grosvenor v. V. Fletcher, 7 N. H. 452 ; Spencer v. Bank, 13 id. 104 ; Bowker v. Hill, 60 Blaisdell, 4 id. 198 ; Howland v. Me. 172 ; Skowhegan Bank v. Farrar, Spencer, 14 id. 580 ; N. H. Ins. Co. v. 46 id. 293 ; Smith r. Kennebec, etc. Piatt, 5 id. 193 ; Stone v. Dean, id. 502 ; R. Co., 45 id. 547 ; Wilson v. Wood, Roundlett v. Jordan, 3 Greenl. 47 ; 34 id. 123 ; Clark v. Viles, 33 id. 32 ; Klinefelter v. Blaine. 3 Dana, 468; Copeland v. Weld, 8 id. 411; Hitch- Maine Ins. Co. V. Weeks, 7 Mass. 438 ; cock v. Egerton, 8 Vt. 202 ; Van Dickinson v. Strong. 4 Pick. 57 ; Lup- Amee v. Jackson, 35 id. 173 ; Fuller ton r. Cutter, 8 id. 298 ; Perry v. v. Jewett, 37 id. 473 ; Jones v. Norris. Coates, 9 Mass. 537; Grant v. Shaw, 2 Ala. 526; Marston v. Carr, 16 id. 200 LIABILITY TO ATTACHMENT. [§ 273. The general principle above briefly enunciated, and the re- marks to follow, will be understood to be inapplicable where, in any state, such evidences are made attachable by statute.^ It is, however, held nowhere that the mere evidence of a debt is the debt itself, any more than that the deed to land is land itself; and where evidences of debt are made attachable by statute, they are usually attached as representing the debt or facilitating the collection of it. AVhen notes are imjyounded they are merely held to prevent their circulation, transfer by mere delivery, etc., in order to conserve the debt due the de- fendant that it may remain available to the plaintiff upon his obtaining judgment. The statute, whatever it authorizes, however exceptional its authorized procedure may be to gen- eral practice, must be the governing law in the state where it has been enacted ; and whatever it prescribes as to method must be followed there. In Missouri the debtor's accounts are impounded by the attachment of his books of account and the notification to him by a receiver appointed b}^ the court.- § 273. A promissory note is not included in the term "goods;" it is not a chose in possession, though, when in- dorsed in blank, such an instrument has been sometimes held such, and to be a chattel or money, like a bank-note.^ But it cannot affect the true character of such paper whether it is indorsed or not. Whether it is so or not, it is only an indica- tion of an existing right — not money, or credit, or prop- erty. The attachment defendant owns the paper; a third person may possess it, but the obligor of the note is the de- fendant's debtor and the person who ought to be garnished — ■ 325 ; Pierce v. Shorter, 50 id. 318 ; i See Somers v. Losey, 48 Mich. 294. EUison V. Tuttle, 26 Tex. 283 ; Tirrell 2 pieisch v. St. Louis N. Bank of V. Canada, 25 id. 455 ; Taj'lor v. Gill- Commerce, 45 Mo. App. 225 ; Stanton ian, 23 id. 508 ; Price v. Brady, 21 id. v. Boschert, 104 Mo. 393 ; Elliott v. 614 : Moore v. Pillow, 3 Humph. 448 ; Bowman, 17 Mo. App. 693. See Wilson V. Albright, 2 G. Greene, 125 ; Kreker v. Mason, 33 id. 297. Deacon v. Oliver, 14 How. 610 ; Rai- ^ Bradley v. Hunt, 5 Gill & Johns, guel V. McConnell, 25 Pa. St. 362 ; 54 ; McNeilage v. Halloway, 1 B. & Allen V. Erie Bank, 57 id. 129; Ga- A. 218; Brush v. Scribuer, 11 Ct. 388 lena & Southern Wisconsin R. R. Co. (though tliese cases do not decide V. Stahl, 103 111. 67 ; Mayes v. Phillips, that such choses may be seized and 60 Miss. 547. sold under execution). § 27-J-.] CHOSES IN ACTION. 201 not the attorney who holds the written paper for the purpose of collecting the amount acknow^ledged by the note to be due the defendant; for promissory notes, bonds, accounts, etc., are not choses in possession, or chattels, or goods or effects, within the meaning of the law of attachment ; and statutes are not to be construed as extending the meaning unless where such interpretation is obviously the right one b}^ the terms of the statute.^ §274. Levij on notes, accounts, etc. — The levy upon the written evidence of a credit due the defendant, in the form of a note of hand, found in the possession of the defendant or of some bank or other agent of his, instead of garnishing the creditor who owes him the debt evidenced by the note, is not different in principle from the attachment of book accounts instead of o^arnishing those who owe what the accounts show to be due the defendant. In the latter case it is held that levy on the account books is not a levy on the debts charged therein due by others to the defendant.- In New York it is held that a note, bond or like instrument must be actually taken into the officer's possession in order to effect the attachment of it,* and that an attached demand should be collected by the officer without awaiting judgment or an order of court.* A draft held for collection is attach- able in the hands of an agent in a suit against the drawer.^ While money in a garnishee's hands belonging to an indi- vidual member of a partnership has been held to render the possessor garnishable in a suit against the firm, a chose in action so held does not make him liable.^ 1 Grosvenor r. Farmers' & Median- Boone v. Mcintosh. 62 Miss. 744; ics' Bank, 13 Ct. 104; Fitch v. Waite, Throop, etc, Co. v. Smith, 3 How. Pr. 5 id. 118, 123; N. H. I. F. Co. v. Piatt, (N. S.) 290 ; Gibson v. Park Bank, 98 5 N. H. 193 ; Maine Fire Ins. Co. v. N. Y. 180 ; Anthony v. Wood, 96 id. Weeks, 7 Mass. 438; Perry v. Coates, 180. 9 id. 537. 3 Anthony u Wood, 96 N. Y. 180 ; 2 Lesher v. Getman, 30 Minn. 321 ; Warner v. Bank, 44 Hun. 374. Feruald v. Cliase, 37 Me. 289 ; Ting- * Davidson v. Chatham Bank, 32 ley V. Dolby, 13 Neb. 371 ; Ide v. Har- Hun, 138. wood, 30 Minn. 191 ; Swart t'. Thomas, & Naser v. First N. Bank, 116 N. Y. 26 id. 141 ; Goodbar v. Lindsley, 51 492. Ark. 380; Bromer u Smith, 17 Wis. 6 pierce v. Shorter, 50 Ala. 318; 410; State v. Eddy, 10 Mont. 311; Stevens r. Perry, 113 Mass. 380. 202 LIABILITY TO ATTACHMENT. [§ 275. If one creditor should attach a promissory note or bill of exchange found in the possession of the debtor, and an- other should attach the debt itself in the hands of the third person owing it to the defendant, by the process of garnish- ment,^ it would plainly appear that the first would have seized only the evidence of the indebtedness while the second would have attached the debt. Which would have created a lien? Which would have something susceptible of being proceeded against as the res in the ancillary proceeding? Certainly the creditor who had garnished the obligor w^ould be the only attacher of the credit due to the defendant.^ The other, hav- ing merely the evidence of the fact that the maker of the note owes the defendant, would have nothing attached which could be proceeded against. In a conflict between the rival cred- itors, there can be no doubt that the one who should garnish the maker of the note and attach the defendant's credit in the garnishee's hands would be preferred. Even if the garnish- ment should take place subsequently to the seizure of the paper-evidence, it would hold good. There would seem to be no meaning in authorizations to attach notes, bills, etc., unless the wOrd " attach " has the limited meaning that evidences of debt may be taken prelim- inarily to a valid attachment of the debt due the defendant by the subsequent garnishment of his debt. § 275. jEx2)ress autliorization. — It may be said that, except so far as statutes expressly authorize the taking of promissory notes, bonds,^ certificates of stock, accounts, title deeds to lands, book accounts, and other evidences of debt or prop- erty, such things are not attachable on general principles, be- cause their presence in court is not the presence of the debts or property which they evidence or indicate."* 1 Bills V. Nat Park Bank, 89 N. Y. Gillispie, 8 Dana, 67 ; Hergman v. 343. Dettlebach, 11 How. Pr. 46; Brower 2 Prout V. Grout. 72 111. 456. v. Smith, 17 Wis. 410 ; Codington v. 3 Providence & Stonington S. S. Gilbert, 5 Duer, 72 ; Ohors v. Hill, 3 Co. V. Va. Fire & Marine Ins. Co., 20 McCord, 338 ; Fernald v. Chase, 37 Blatchf. C. C. 405. Me. 289; Lesher v. Getman, 30 Minn. 4 Probst V. Scott, 31 Ark. 652 ; 321 ; Matheny v. Hughes, 10 Heisk. Prout V. Grout, 72 111. 456. See with 401. reference to this subject, Bradford v. § 275.] CHOSES IN ACTION. 203 If the object is to attach the defendant's right to receive payment on the promissory notes, bonds, etc., which he holds, and not to proceed against his debtor by way of garnishment, the attachment would be that of an incorporeal thing ; and the taking of the evidences, in such case, might be made by statute the legal method of proceeding against such right or interest. In other words, the law may create a hypothetical subrogation, putting the attaching creditor in the shoes of the original payee, and creating a lien upon the debt due the de- fendant. It would seem that only in this way can author- izations to attach such evidences be rendered practical and available. A wife's choses in action, before her husband has reduced^ them to possession, have been declared attachable as his, where he has the right to reduce them to possession and sell, release or assign them. This is his right under the common- law rule which prevails unmodified on this subject in several states, while it has been superseded by statute in others. The general tendency is towards the recognition of the wife's in- dividualism. She retains her right only by statutory author- ization. Where the husband may reduce her choses in action to his possession, his creditors may reach them by proper process, which ordinaril}'^ would not be the direct attachment of notes or other evidences of indebtedness, but the garnish- ment of her debtors in the action against him. The decisions on the liability of such choses will be found to turn upon the common-law rule or upon its statutory modifications.^ 1 Vance v. McLaughlin, 8 Gratt. 173; Shuttlesworth r. Noyes, 8 Mass. 289; Peacock v. Pembroke, 4 Md. 229. Coinj^are Probate Court u. Niles, 280 ; Hockaday v. Sallee, 26 Mo. 219 ; 32 Vt. 775 ; Wheeler v. Moore, 13 Babb V. Elliott, 4 Harr. (Del.) 466; N. H. 478; Dennison v. Nigh, 3 OtrmmoaNvealth v. Manley, 12 Pick. Watts, 90. CHAPTER YIII. ATTACHING. I. In General g§ 276, 277 II. Real Estate, how Attached 278-282 III, Personalty, how Attached 283-291 IV, Time of Seizing 292-295 V, The Officer's Duties and Liabilities 290-303 VI, Wrongful Levy 304-311 I, In General. § 276, Officer selecting lyroperty for seizure. — The sheriff, armed with the writ, and commanded to attach something be- longing to the defendant which is capable of bearing a lien and susceptible of becoming the res against which the attach- ment proceeding is directed, must now select what he is to take into his possession. He is obliged to make selection when the defendant possesses and owns more property than is sufficient to constitute the res of the suit, unless the writ is directed against specific property, when he can seize only that. The command of the court in the latter case is for the attach- ment of the particular thing which is described in the affidavit and the writ : so he has no choice between that and other i)rop- erty when about to execute the attachment.^ Ordinarily the command is general as to the defendant's property, and the sheriff has no guide in making his selection except that afforded by the law and the instructions of the plaintiff. He should regard the directions of the plaintiff when they are within the law, especially if he has been secured by an indemnifying bond. He is not, however, legally bound to do so when the instruc- tions are obviously unreasonable, evidently intended to harass the defendant, and likely to result in a damage suit against the officer, if there is sufficient other property liable to the attach- ment which ma}' be readily secured without any embarrassing results. Though protected from damage by the bond of in- 1 Reid V. Tucker, 56 Ga. 27a g§ 277, 278.] REAL ESTATE, HOW ATTACHED. 205 (leranity, the sheriff is not, under such circumstances, obliged to subject himself to the annoyances of personal litigation. §277. Defendanfs attitude. — It is not generally deemed the duty of the attachment defendant to point out property to be attached, or to give the names of his debtors that they may be garnished.^ It is rather a privilege than a duty, when property is about to be seized in execution of a judgment, for the debtor to be allowed to designate what property he would prefer to have taken under the writ. It is his duty to pay his debts and to satisfy the judgment against him, and to fa- cilitate the officer; but when there is no judgment and pre- sumably no indebtedness (since he has put or may put the charge at issue), there is no reason for his pointing out prop- erty to be attached or pointing out his own debtors to be garnished ; but his consent to attachment does not vitiate it.- II. Real Estate, how Attached. § 278. Land. — Attachable property, owned and possessed by the debtor, may be real or personal or mixed ; it may be tangible or incorporeal. Its nature determines to a consider- able decree what is neeessarv to its valid seizure. Land is not susceptible of manipulation, and therefore it is attached by serving a copy of the writ upon the tenant in possession without disturbing his tenancy, and then returning the writ with a statement of the fact of levying indorsed thereon.' Service of the copy on the tenant is not a universal require- ment.* The indorsement on the writ should contain a cer- 1 In Connecticut it is deemed fraud ment may be served upon it by leav- on the part of the debtor who refuses ing a copy with any of its agents or to disclose such facts, giving rise to clerks in the town where it does busi- action on the case and attachment of ness. Adams v. Willimantic Linen his body. Feary v. Hotchkiss, 46 Ct. Co., 46 Ct. 320. 266. If the defendant discloses the 2 Goodbar v. City N. Bank, 78 Tex. names of his debtors and the amounts 461. due, the plaintiff's process against 3 Hancock v. Henderson, 45 Tex. them as garnishees is called a factor- 479; Wood v. Weir, 5 B. Mon. 544; izing process, and the attachment is Lyon v. Sanford, 5 Ct. 544 ; Scott v. called a foreign attachment, whether Manchester Print Works, 44 N. H. the defendant is within the state or 507. a non-resident. If a corporation does * Rogers t\ Bonner, 45 N. Y. 379 ; business in one town and is located Same, 55 Barb. 9. in another, process of foreign attach- 2UG ATTACHING. [§ 279. tain description of the real estate attached.^ If the descrip- tion is certain it need not be an accurate detail of the metes and bounds with such particularity as would be required in a title deed, or even in a writ of execution.- But if the descrip- tion is ambiguous or otherwise uncertain there is no valid at- tachment by notice to the tenant in possession coupled with such a return.* § 279. If the sheriff notifies the tenant in possession and so returns what real estate he has attached that it may be made the object of the ancillary action and the bearer of a lien se- curing the creditor's claim, it is not necessary to show in the return that he has been personally upon the land, or that he has performed any act or ceremony by way of attaching it.* The act of attaching must be such as to create a lien upon the land susceptible of being perfected by judgment, since that is the very object of the process."* Though courts have fre- quently held that an accurate description of real estate at- tached as in a title deed is not necessary to the validity of the attachment or the creation of the lien, yet the better practice is to make such description with the metes and bounds and number of acres stated. Such particularity can never do harm and can never giv^e occasion for the attack of the serv- ice as imperfect because of uncertainty of description. In a contest among attaching creditors, such particularity may serve a good purpose. In recording the attachment of land an accurate description becomes necessary. Considered as a preliminary seizure for the purpose of eventual execution, there is much reason for making the description of land at- 1 Buckhardt v. McClellan, 1 Abb. Hellen, 3 Har. & J. 206 ; Henry v. App. Dec. 363 ; Carleton v. Ryerson, Mitchell, 33 Mo. 513. 59 Me. 438; Taylor v. Mixter, 11 ^Riordan v. Britton, 69 Tex. 198; Pick. 341. Sanger v. Trammell, 66 id. 361. 2 Crosby V. Ally n, 5 Me. 453 ; Bacon ^Yeatman v. Savings Institution, V. Leonard, 4 Pick. 277 ; Whitaker v. 95 U. S. 764, and cases cited therein Sumner, 9 id. 308 ; Pratt v. Wheeler, at p. 766 on liens ; Saunders v. Colum- 6 Gray, 520; Howard v. Daniels, 3 bus Life Ins. Co., 43 Miss. 583; Wor- N. H. 137 ; Moore v. Kidder, 55 id. cester Nat. Bank v. Cheeney, 87 111. 488. 602 ; Carter v. Champion, 8 Ct 549 ; 3Menley v. Zeigler, 23 Tex. 88; Patch v. Wessels, 46 Mich. 249; Porter v. Byrne, 10 Ind. 146 ; Hath- Chandler v. Dyer, 37 Vt. 345 ; Adler away v. Laribee, 37 Me. 449 ; Lam- v. Roth, 3 McCrary, 445. The attach- bard v. Pike, 33 id. 141 ; Fitzhugh v. ing creditor acquire^ a lien on the §§ 280, 2S1.] REAL ESTATE, HOW ATTACHED. 207 tached as full and accurate as its description when it is to be sold under execution, though the practice does not impera- tively require it. It would not be advisable for the sheriff to rely too strongly upon decisions sustaining doubtful descrip- tions when he has it in his power to make a perfect return free from any invitation to attack. § 280. Attachment of land by such notice, description and return is presumed to be that of the defendant, whether the officer so states it or not. The return is an answer to the command to seize property of the defendant; and the state- ment that real estate of a certain description has been attached implies that the order has been obeyed. The attachment is therefore not radically defective when the sheriff fails to de- scribe the land as belonging to the defendant,^ though he ought so to state. The attaching creditor cannot question the defendant's title to the land attached.- When there is no oc- cupant with whom the writ can be left, posting is necessary in California and other states, and its omission is fatal.^ It must be on each tract when more than one is attached ; * but one posting is sufficient for several adjoining lots.'^ And it must be in a conspicuous place, and the return should show that fact.^ §281. Interest in land. — When the debtor owns some in- terest in land and has the control of such interest, it may be directly attached — notice being given to him. Legal inter- ests susceptible of bearing a lien are proper subjects of attach- ment. In California interests in land, whether legal or equitable, perfect or imperfect, and whether executory or executed when they lie in contract, are attachable.^ In Tennessee the right land, but no right to rents and prof- v. Wright, 66 id. 202 ; Porter v. Pico, its. Kothman v. Marksou, 34 Kan. 55 id. 172; Sharp u Baird, 43 id. 577 ; 542. Main v. Tappener, id. 206 ; White v. 1 Miller v. Fay, 40 Wis. 633 ; Por- O'Bannon, 86 K}'. 93. ter V. Pico, 55 Cal. 165 ; Saunders v. * Hall v. Stevenson, 19 Oreg. 153 ; Columbus Life Ins. Co., 43 Miss. 583 ; Henry v. Mitchell, 32 Mo. 512. King V. Bucks, 11 Ala. 217; Rowan 5 Blake v. Rider, 36 Kan. 693. V. Lamb, 4 G. Greene, 468; Stoddart ^jjall v. Stevenson, supra; Bryan V. McMahon, 35 Tex. 267. v. Trout, 90 Pa. St. 493 ; Tucker v. 2Whitehill v. Basnett, 24 W. Va. Byars. 46 Miss. 549. 142. 'Fishr.Fowlie,58Ca].373. In Colo- 3 Davis V. Baker, 73 Cal. 494 ; rado it was held that levy on land by Schwartz v. Cowell, 71 id. 306; Watt filing a copy of the attachment with 208 ATTACHING. [§ 281. of redemption in land sold under execution may be attached in a suit in equity against a non-resident debtor.^ In Xew York the interest of one who ha-s a contract to purchase, and who has made part payment, may be attached.- In Florida the undivided interest of an heir in land may be attached during administration.'^ In Illinois an equitable estate in land for life is attachable.^ In Tennessee a lien is not created on an equi- table interest in land from a title bond, by levy of attachment.* These principles are not limited to the states mentioned. Though an interest in realt}'- is an incorporeal thing, it may nevertheless constitute the res against which the property- action is directed. And when such lien has been created it is not lost by the transformation of the incorporeal to a corpo- real thing; as when an undivided interest in real estate is merged into the part which falls to the defendant upon parti- tion.^ And this results whether the partition is made after the attachment or is made before without notice to the attach- ing creditor and beyond his knowledge. The defendant is not put to the worse by the lien following the interest from the mass to a distinct apportionment of the property. If his interest in an undivided tract of land is attached, and a divis- ion subsequently is made by which one-half of the tract is set off to him as his share, the lien will pass to his portion and leave the other half free and unincumbered. It has been held that an execution levied upon the right, title and interest of a judgment debtor is a levy upon the land itself for all practical purposes, if the title is wholly in him ; and that a sale under such levy would convey the land." And description in the recorder's office of the mortgagee. Becker v. Dun- created a lieu before service on the ham, 27 Minn. 32. defendant. Raynolds v. Eay, 12 Colo. - Higgins v. McConnell, 130 N. Y. 108 (.see dissent of the chief justice) ; 482. See same title, 56 Hun, 277 ; Emory v. Yount, 7 Colo. 107 ; Brown N. Y. Civ. Code of Proc, §g 644, 1253. V. Tucker, id. 30 ; Moore v. Thayer, 6 » McClellan v. Solomon, 23 Fla. 437. How. Pr. (N. Y.) 43. Compare Main * Wallace v. Monroe, 22 111. App, V. Tappener, 43 Cal. 206 ; Wheaton v. 602. Neville, 19 id. 42. 5 Blackburn v. Clarke, 1 Pickle, 505. 1 Herndon v. Pickard, 5 Lea, 702. 6 McMechan v. Griffing, 9 Pick. 538 ; In Minnesota the right of the mort- Muuroe v. Luke. 19 id. 39 ; Crosby v. gagor to redeem may be attached, Allyn, 5 Me. 453; Argyle v. Dwinel, when the chattel is still in the hands 29 id. 29. ^ Vilas r. Reynolds, 6 Wis. 214 ^§ 2S2, 283.] PERSONALTY, HOW ATTACHED. 209 if there is a mortgage resting upon the land, and the right, title and interest of the owner executed and sold, it has been held that the land itself will be thus conveyed, and the mort- gagee must look to the proceeds ; ^ but usually it is sold sub- ject to the lien. §282. Constructive attacliment. — There can be only con- structive attachment when some interest under the control of and owned by the defendant is proceeded against. Not being susceptible of manipulation, it can be attached in idea raerel}^ by giving notice and returning that it is attached. There is, however, a legal transfer of control and possession from the defendant to the officer, if the levy is valid. In the eye of the law, the latter takes possession of the incorporeal thing, brings it into court, and holds it in custodia legis. The owner of it cannot dispose of it in any way that will dis- incumber it of the lien. Thus the interest of a devisee,- of heirs,'' or of any distributee of an estate attached in Iowa be- fore sale by an administrator to pay his debt to the estate,* may be constructively attached. A lien interest is not attach- able.^ When an undivided interest has been attached, a claimant may proceed without other owners of interests being made parties.® There are many interests which have been held not liable to attachment : the interest of the mortgagee in chattels;^ the mortgagor's right of redemption,^ etc. A leasehold interest cannot be included in the attachment of '•goods, furniture and effects" liable for rent.^ III. Personalty, how Attached. § 283. Actual seizure. — Personal property should be seized in preference to real, even when the statutes do not impera- tively require such preference. It is the species of property iTrudeau v. McVicar, 1 La. Ann. 6 Hamburg v. Wood, 66 Tex. 168. 426 ; Duchaud t\ Rousseau, 2 id. 168, ^ Murphy v. Galloupe, 143 Mass. 173. 123 ; Voorhies v. Hennessy (Wash.), 2 Hewitt V. Durant, 78 Mich. 186. 34 P. 931 ; Silsby v. Aldridge, 1 Wash. See Hawkins v. Hewitt. 56 Vt. 430. 117. In the state of Washington the 3 Hankinson u Page, 19 Abb. N. C. chattel-mortgagee in possession is 274. not deemed the owner. 4 AUison V. Graham, 67 la. 68. s Cutter v. Gould, 43 Hun, 516. 5Adoue V. Jemison, 65 Tex. 680; 9 First N. Bank v. Light Co., 97 McGurren v. Garrity, 68 Cal. 566. Ala. 465. 14 210 ATTACHING. [§ 284. most readily taken into actual possession, and is that which is most usually the subject of attachment. Goods and chattels are attached by the actual taking of them by the sheriff from the possession of the debtor, and transferring them to the control of the court.^ They cannot ordinarily be the subject of constructive seizure. Possession creates the presumption of ownership in movable property ;- and therefore if attached goods were left in the hands of the debtor, he might validly convey them to an innocent pur- chaser buying without notice of the attachment; and then the property action would be at an end for want of the thing proceeded against. § 284. Whatever is in its nature susceptible of being ma- nipulated can be validly attached only by the taking of it into the charge and control of the executive officer, acting under the court.^ Whether it is handled and removed or not; Avhether it is transferred to the officer's warehouse or left in its original locality in charge of a keeper appointed by the officer; whether it is retained directly by the officer or in- trusted b}^ him to a receiptor or given in charge to the defend- ant himself under a forthcoming bond, — it must be subjected to, and continued under, the control of the court so as to con- stitute the res of the action. It has been held that levy upon a safe and contents includes its contents though the safe be locked.* Things not immedi- ately removable may be attached and keepers put in charge, re- moval not being essential to the attachment of such personalty. '' 1 Gumbel v. Pitkin, 124 U. S. 131 ; the attachment and custody of av- 8 S. Ct 379 ; Capital City Bank v. tides of bulk. Parent, 134 N. Y. 537; Hibbard v. * Elliott v. Bowman, 17 Mo. App. Zenor, 75 la. 471 ; Barney i\ Rock- 693 ; Sams v. Armstrong, 8 id. 573 ; well, 60 Vt. 444. Douglas v. Orr, 58 Mo. 573 ; Newman 2 Harvey v. Jewell, 84 Ga. 234. v. Hook. 37 id. 207 ; Yeldell v. Stem- 3 Root V. Railroad Co., 45 Ohio St. mons, 15 id. 443. 222; Hibbard v. Zenor, 75 la. 471; 5 Commonwealth v. Brighara, 123 Littleton v. Wyman, 69 id. 248 ; Mass. 248 ; Cheshire N. Bank v. Jew- Bickler r. Kendall. 66 id. 703; Craw- ett, 119 id. 241 ; Dunklee v. Fales, 5 ford V. Newell, 23 id. 453 : Lyeth v. N. H. 527 ; Bicknell r. Trickey, 34 Me. Griffis, 44 Kan. 159 ; Powell r. Mc- 273 ; State v. Barker, 26 Vt. 647 ; Kechnie, 3 Dak. 319. See Went- Naylor v. Dennie, 8 Pick. 198 ; Pond worth V. Sawyer, 76 Me. 434, as to v. Skidmore, 40 Ct 213 ; Mills v. Camp, 14 id. 219. § 2S5.] PERSONALTY, HOW ATTACHED. 211 § 2S5, Crop. — In seizing a growing crop the sheriff must obtain and retain control of it,' give proper notice to the per- son in charge of it, make such inventory as is practicable, and duly return his action to the court; but he must not gather the crop before it is ripe, or prevent its cultivation mean- while. It would manifestly be an act of folly to take posses- sion of, and remove for safe keeping, any species of property of such a nature that it would be destroyed by such action. The object of the legislator in providing the remedy of at- tachment is to enable the creditor to make his money out of the property of the debtor, not .to provoke the wanton de- struction of the property, which would be of no benefit to the creditor while causing loss to the debtor and diminishing: his ability to pay. If the nature of the property is such that it cannot be taken into the ph3'sical possession of the oflBcer without its destruction, it cannot legally be so taken; if, though attached, it cannot be removed without such result, it is not legally removable. Illustrations are found in the nature of growing crops in the field, unripe fruit in the or- chard, unformed vegetables, fresh fish and meat, articles under process of being manufactured, etc.- Live stock and household furniture have been sold by order of court in limine as perishable property.^ Goods of tailors have been held perishable owing to change of fashions and liability to moth and dirt.* Perishable property has been sold under order of court after the plaintiff's death while the attachment case was still pending.-^ If the attachment be quashed after J^Throop V. Maiden (Kan.), 34 P. Penhallow v. Dwight, 7 Mass. 34; 801; Lyeth v. Griffis, 44 Kan. 159; Bond v. Ward, id. 123; Wilds v. Kan. Civ. Code, § 198: Crisman v. Blanchard, 7 Vt. 138; AVallace v. Dorsey, 12 Colo. 567. If the crop is Barker, 8 id. 440 ; Norris v. Watson, grown by one whose possession of 2 Fos. 364. See First N. Bank v. Light the land is adverse to the defendant, Co., 97 Ala. 465. But not baled cot- it is not attachable as the property of ton. Goodman v. Moss, 64 Miss. 307 ; the defendant. Smith v. Cunning- Weis v. Basket (Miss.), 15 So. 659. ham, 67 Cal. 262. An attacher of ^ Baker v. Baker (Pa. Com. Pleas), land is not entitled to an order ap- 28 W. N. C. 300 ; Meyer v. Sligh, 81 propriating the rents to his claim. Tex. 336. Columbia Bank v. IngersoU, 21 Abb. ■* Schumann v. Davis, 26 Abb. N. C. N. a 241. See Phelps v. Delmore, 125. 69 Hun, 18; ante, § 146. sBuller v. Woods, 43 Mo. App. 494. ^ Raventas v. Green, 57 Cal. 254 ; 212 ATTACHING. [§§ 286-289. such sale, the proceeds must be paid to the defendant, thougli the plaintiff gain the personal suit.^ § 286. What constitutes seizure. — The taking and holding of any attachable property must be such as to maintain the incipient lien, to perfect it upon judgment, and eventually to enforce it by sale of the thing attached. Since the taking is preliminary to execution, it is as important that the property should be actually taken and held as if the seizure were made after judgment under a writ of execution.^ § 287. Actual manipulation is not always necessary. Noth- ing is added to the sanctity of a seizure by laying hands on the article attached. Grain in bulk, ships, steamboats, and any cumbrous property may be left where found, without any act done to the thing seized, provided the sheriff really takes it in charge and holds it directly, or indirectly b}' his servants, or by others legall}^ authorized to hold under him. What is meant b}^ saying that there must be actual seizure is that there must be a real transfer of the legal possession and con- trol from the debtor to the sheriff, § 288. A real or actual attachment is not accomplished by serving a copy of the writ on the person in charge of goods, acquainting him with the character of the paper, making an in- ventory of the goods and returning the writ into court with a statement indorsed thereon that the goods have been at- tached.^ Such procedure on the part of the officer might subject him to damages in a suit by the defendant for wrong- ful constructive seizure without amounting to a valid attach- ment.* § 289. Seizing goods by merely declaring them to be seized, and posting notice of the attachment upon or above the goods, and making a return, does not constitute a legal attachment.* 1 Petty V. Lang, 81 Tex. 238. See 475. See Adams v. Speelman, 39 Stacks V. Curd, 88 Ky. 1G4. Hun, 35. 2 Patch t". Wessels, 46 3Iich. 249; 5 Rix r. Silknitter, 57 la. 262 ; Bry- Mahon v. Kennedy (Wis.), 57 N. W. ant v. Osgood, 52 N. H. 182. But a 1108; Bell v. Shafer, 58 Wis. 223; sheriff made a memorandum of a Wis. Rev. Stat., g 2736 ; Adler v. Eoth, portable threshing machine and its 2 JMcCrary, 445. accompaniments, served a copy of 3 Miles V. Brown, 38 N. Y. Super. Ct, the attachment and summons on the 400 ; Bickler v. Kendall, 66 la. 703. defendant, and told a workman near *St. George v. O'Connell, 110 Mass. by to look after the articles and tell ; 290.] PEKSONALTT, HOW ATTACHED. 213 Certainly such acts would not be of avail in competition with. a second attachment actually made and the goods legally retained by the officer or by a kee|3€r duly appointed. A seiz- ure may be good with respect to the defendant yet not as to third persons ; ^ it may have radical defects as an attachment, yet hold good against purchasers from the defendant there- after, so as to sustain the charge that they bought with knowledge of the attachment. Interests may be such as to be susceptible of only construct- ive seizure; but the general rule maybe expressed in brief, that the attachment of movable property is its actual seizure under the writ, and the transfer of its possession and control from the defendant to the officer, who must continue his legal custody of it in order to maintain the validity of the attach- ment.- § 290. Second levy. — When property has already been at- tached and is in the lawful possession of the sheriff, a second attacher cannot take it from him.^ And tiiere is no need for such taking, since the property is already safe in the custod}'" of the law, and the second attacher is fully protected in his rights. An officer who has attached property canuot give auy iutermeddler that they were at- Stockton v. Downey, 6 La. Ann. 581 ; tached ; and this seizure was held Woodworth v. Lemmerman, 9 id. good as against purchasers from the 524; Netson v. Simpson, id. 311; defendant with knowledge. Rogers Gates v. Flint, 39 Miss. 365; Patch v. V. Gil more, 51 Cal. 309. Wessels, 46 Mich. 249 ; Sanford v. iDriesbachnBank, 113Pa. St. 554; Boring, 12 Cal. 539; Lovejoy v. Throop V. Maiden (Kan.), 34 P. 801. Hutchins, 23 Me. 272 ; Waterliouse v. 2 Scott V. Davis, 26 La. Ann. 688; Smith, 22 id. 337; Nichols r. Patten, Lane v. Jackson, 5 Mass. 157 ; Gale v. 18 id. 231 ; Connell v. Scott, 5 Baxter, Ward, 14 id. 352 ; Baldwin u Jack- 595 ; Brooks v. State, id. 607 ; Culver son, 12 id. 131 ; Ashmun v. Williams, v. Rumsej', 6 111. App. 598 ; same title, 8 Pick. 402 ; Hemmenway uWheeler, 7 id. 422. In Vermont, however, the 14 id. 408; Sanderson v. Edwards, 16 possession, though it must be contin- id. 144; Bruce v. Holden, 21 id. 187; uous as above stated, may be con- Sutherland V, Peoria Bank, 78 Ky. structive. Rogers v. Fairfield, 36 250 ; Lyon v. Rood, 12 Vt. 233 ; Blake Vt. 641 ; Paul v. Burton, 32 id. 148 V. Hatch, 25 id. 555 ; Taintor v. Will- Strickland v. Martin, 23 id. 484 iams, 7 Ct. 271 ; Huntington v. Blais- Bucklin v. Crampton, 20 id. 261 dell, 2 N. H. 317 ; Dunklee v. Fales, 5 Lyeth v. Griffis, 44 Kan. 159. id. 527; Chadbourne v. Sumner, 16 3 Benson v. Berr}^ 55 Earb. 620; id. 129 ; Smith v. Orser, 43 Barb. 187 : Bailey v. Childs, 46 Ohio St. 557 ; Learned v. Vanderburgh, 7 How. Pr. Heye v. Moody, 67 Tex. 615. 379 ; State v. Cornelius, 5 Oreg. 46 ; 214 ATTACHING. [§ 291. another the right of making a second levy upon it.^ The right is giv^en by statute to lay the second attachment in the hands of the officer.- § 291. Stoclcs. — Corporation stock is attached by leaving a copy of the writ with the proper corporation officer,^ and giv- ing notice and making return with proper description. Sim- ply taking possession of the stock certificate is no attachment of anything of value.* The corporation has no interest in the seizure of the stock as the property of a stockholder.* The method of seizing corporation stock is pointed out in differ- ent statutes, and it depends on the authorization for its legal- ity wherever it is attachable at all.^ It is not necessary, in attaching it, to make mention of accruing or subsequent divi- dends; the seizure covers them.'' Stock transferred but not entered on the books as required is attachable by an unnotified creditor in his suit against the transferrer.^ Under an order to attach "effects," stocks may be attached ; the term is more extensive than " goods." ^ The defendant's merely beneficial interest in corporation stock standing in another's name is not attachable.^" When such interest has been attached and the attachment vacated, the trial judge cannot be compelled by mandamus to set aside his vacating order." 1 Bailey v. Childs, 46 Ohio St. 557. Co., 4 Mackey, 63 ; Foster v. Potter, The second attacher should garnish 37 Mo. 525 ; Abels v. Insurance Co., the sheriff in Ohio as to personal 92 Ala. 382 ; Haley v. Reid, 16 Ga. property already attached. Id. ; 437 ; Union Bank v. Byram, 131 111. Locke V. Butler. 19 Ohio St. 587. 92 : Ehea v. Powell, 24 III. App. 77 ; 2Claflin V. Furstenheim, 49 Ark. Merchants' Ins, Co. v. Brower, 38 302. Tex, 230; Howe v. Starkweather, 17 3 Union N. Bank v. Byram. 131 111, Mass. 240 ; Plympton v. Bigelow, 13 92, See Rhea v. Powell, 24 111. App. Abb. N. C. 173 ; Gottfried v. Miller, 77 ; Foster v. Potter, 37 Mo. 526, But 104 U, S, 521. not attachable as evidence of debt, '^Jacobus v. Bank, 35 Fed. 395; Van Norman v. Judge, 45 Mich. 204. Geyer v. Insurance Co., 3 Pittsb. 41. ^Duncanson v. Bank, 7 Mackej-, » Fort Madison, etc, r. Bank, 71 la, 348 ; Armour Bank Co, v. Smith 270 ; Ryan v. Campbell, id. 760. (Mo.), 20 S, W. 690 ; Mooar v. Walker, ^ Union N. Bank v. Byram, 131 111. 46 la, 164 ; Stamford Bank v. Ferris, 100. 17 Ct. 259. 10 Gypsum Co, v. Circuit Judge, 5 Gottfried v. Miller, 104 U, S. 521. 97 Mich. 631 ; Van Norman v. Circuit 6 Armour Bank Co. v. Smith (Mo.), Judge, 45 id. 204, 20 S, W, 690 ; Barnard v. Life Ins. " Id. §§ 292, 293.] TIME OF SEIZING. 2lD TV. Time of Seizing. §292. Hfeofivrit. — The writ has till the return day to run, but it is the duty of the officer in charge of it to serve it on the day he receives it, or as soon as practicable, unless in- structed or permitted by the plaintiff to make delay, or un- avoidably hindered in some way. It is true that in many cases no evil arises from a little procrastination. If the debtor is honest, or the property not portable, or there are no com- peting creditors, the execution of the writ on the last day of its term might suffice ; but, in such a conjunction of circum- stances, there is hardly any need for such writ at all. An ordinary suit might result in judgment soon enough ; and then the issue of an execution would preclude the necessity for an ante-judgment attachment.^ Should the plaintiff suffer loss by the unnecessary dallying of an officer, he ought to be recompensed therefor in damages, though the limit of the time for the return may not have ar- rived. But the officer is not bound, under ordinary circum- stances, to proceed with any unusual degree of celerity. If the writ is placed in his hands late in the day, he may await till the following day before making the levy, though it is possible to perform the duty immediately. He might not be subjected to damages, under ordinar}^ circumstances, should he delay for several days when busy with other official duties, if the plaintiff makes no request for immediate or early action, and if the officer knows of no reason why he should avoid such delay; but in such case he takes the risk should the plaintiff suffer loss by the procrastination. Delay in attach- ing is not material if facts remain unchanged.- § 293. Immediate action.— When immediate action is ur- gent, and the plaintiff instructs theofficer to execute the writ immediately upon property which he points out — upon a steamboat just about to leave the wharf for atrip beyond the state lines, for instance, — it is the duty of the officer to pro- ceed with such dispatch as is compatible with good and se- cure work, notwithstanding the many remaining days within which the writ is returnable. Even if the plaintiff has not iScheib v. Baldwin, 22 How. Pr. 2 Adams v. Lock wood, 30 Kan. 373. 278. 2iG ATTACHING. [§§ 294, 295. urged such celerit}^ but has pointed out the property to be seized, the oificer ought to move with reasonable dispatch if he knows, though the plaintiff does not, that in case of a few hours' delay the object of pursuit would probably elude his grasp. § 294. Priority. — The time of executing is not only impor- tant with reference to the possible removal of his property b}'" the debtor in case of the officer's delay, but also with regard to priority of lien when there are competing attachments. So far as the defendant is concerned, the levy on the last day of the writ's duration is just as effectual as on the first; and, even after the expiration of the specified time, an attachment may serve its purpose as to him if he should not have it dis- solved prior to judgment and make way with his property before judgment and seizure under execution.^ § 295. Levy is too late if made after notice of insolvency proceedings against the debtor has been published,^ although the writ ma}' have several days to run ; and it is always too late after the return day,^ if assailed. The officer ought not to wait till the time has nearly expired, but should proceed with reasonable celerity, even though not specially urged by the attaching creditor, that he may not only have the satis- faction of having promptly done his duty, but also that he may avoid personal liability in case the intended seizure should slip his fingers;* for the officer may render himself liable to the plaintiff for loss caused by tardiness in moving, though the writ may yet have considerable time to run.^ He is not expected to be on the alert at unseasonable hours, between midnight and da}','' unless speciallv advised that extraordinary vigilance and energy are necessary to prevent the removal of the debtor's property at such hours, or for the purpose of the plaintiff's gaining priority of rank among creditors. It was held, under the xsew York Code of Civil Procedure, sections 63S, 788, which required service of summons " within i In Indiana, held that attachment Dame v. Fales, 3 N. H. 70; Nane r. writs there run till executed, or till, Barbery (Tex.), 26 S. W. 151. with reasonable diligence, they may ■* Kennedy v. Brent, 6 Cr. 187. be executed. Will v. Whitney, 15 5 id. Ind. 194 6 Whitney v. Butterfield, 13 CaL 2 Gallup V. Robinson. 11 Gray, 20. 335. 3 Peters v. Conwaj-, 4 Bush, 566 ; §§ 29G-298.] officek's duties and liabilities. 217 thirty cla3"s after the granting thereof," that Sunday must be excluded when it is the thirtieth day, and that the service may be made on the Monday following.^ Y. The Officek's Duties and Liabilities.^ § 296. Service of process. — The process should be served upon the person in possession at the time of the seizure.' Such per- .^on may be the debtor himself or some person in his employ holding not as a legal possessor in his own right who can be reached only by garnishment. The difference between the possession by a clerk, emplo3'ee or servant of the defendant and that by one who holds under contract as the legal pos- sessor for a stipulated time is sufficiently apparent. In the first case the lawful possession is in the defendant, and the property may be directly attached, process being served on him and the emplo3'^ee immediately holding; in the second, the lawful possession is in the person liable to garnishment, as above mentioned. §297. Taldng too mnch or too little. — There should be enough taken under the writ to satisfy the plaintiff's demand: so the officer who takes too little when he might attach a sufficient quantity of goods or other property to pay the de- fendant's debt is liable to the plaintiff.^ There should not be too much taken, lest the defendant complain. He might rightfully complain if the goods or other property attached should be greatly excessive,^ and he would have a remedy for his wrong in an action against the officer. So here is the offi- cer, between the rock and the gulf. He is responsible to both parties for sound and reasonable discretion in performing his dut3\'^ His safety is in straight steering. § 298. Force. — A sheriff or his deputy, in making a levv under a writ of attachment, may use such force as necessity will justify.'' The deputy may be obliged first to show his 1 Gribbon v. Freel, 93 N. Y. 93. P. 200 ; Hughes v. Tennison, 3 Tenn. 2 See chs. 24, 25. Ch. 641. 3Grieff v. Betterton, 18 La. Ann. 6 Fitzgerald v. Blake, 42 Barb. 513; 349. Merrill v. Curtis, 18 Me. 272 : Hilliard 4 Ransom v. Halcott, 18 Barb. 56 ; v. Wilson. 65 Tex. 286 : De Witt v. Op- Howes V. Spicer, 23 Vt. 508. penheimer. 51 id. 103. sMcConnell v. Kaufman, 5 Wash. ' Haggerty v. Wilber, 16 Johns. 287. 686 ; State Bank v. Martin (Kan.), 28 218 ATTACHING. [§ 298. authorization, unless he is already known as a public officer duly empowered to execute such a writ. In other respects his powders, as to the use of force, are as great as those of his principal officer, when it is his duty to make a levy. Though violence may not be done to the debtor's castle,^ the dw^elling w^here he resides with his family, there is not the same sacred- ness attached to his store or out-buildings.^ To make an attachment the sheriff cannot break into a dwelling. An out- house may be opened without first requesting the debtor to unlock the door, though such request is necessary before break- ing open a barn or other building adjoined to the dwelling. A store or w^arehouse may be broken open to reach goods to be attached when the store-keeper renders such action neces- sary by refusing admittance.^ Upon entering a store, either by force or otherwise, the officer should remain no longer than may be reasonably necessary to perform his trust.* Should he unnecessarily expel the owner or exclude him from his place of business for an unreasonable time, the officer w^ould be lia- ble in damages.^ The sheriff, in executing an attachment writ, may open the safe of a trust company and the box of the defendant to seize and take into custody securities and other valuables there de- posited.^ He should not resort to force, however, in execut- ing such a delicate trust, before first requesting the proper officer of the trust company to unlock the safe for him, and also requesting the debtor to open his own box if the latter is practicable.'' People u Hubbard, 24 Wend. 369. in Ilsley v. Nichols, 12 Pick. 270, - Messner v. Lewis, 20 Tex. 221 ; that if a civil officer breaks open a Fullerton v. Mack, 2 Aikens, 415 ; dwelling-bouse by forcing the outer Burton v. Wilkinson, 18 Vt. 186 ; door, against the prohibition of the Piatt V. Brown, 16 Pick. 553 ; Solin- owner, with the direci and avowed sky V. Bank, 85 Tenn. 368. purpose of making an attachment of 3 Burton v. Wilkinson, 18 Vt 189, the owner's goods in the dwelling- citing Penton v. Brown, 1 Keb. 698 ; house, such breaking is not onl\' an Haggerty v. Wilber, 16 Johns. 287. unlawful act, but the attachment 4 Williams v. Powell, 101 Mass. 467 ; made by means of it is invalid. And Malsom v. Spoor, 12 Met. 279. the following authorities, bearing on 5 Perry v. Carr, 42 Vt 53. the point f'o and con, were cited 6 United States v. Grail, 67 Barb, and discussed by Shaw, C. J. : Bac. 304. Abr. "Sheriff,"' N. 3; Seymane v. 7 Clark V. Wilson, 14 R 1. 11. Held Gresham, 5 Rep. 93; Lee v. Gansel, §§ 299, 300.] officer's duties and liabilities. 219 § 299. Brealdng doors. — An officer is not only liable to damages, and to have his service of writ invalidated, by his breakiog the front door of the debtor's dwelling, but also by breaking the inner doors leading to rooms rented by sub- tenants, when such rooms are of such a character as to con- stitute the dwelling-house of the occupants. Buildings rented in flats may serve for illustration. Each flat is as sacred as any resident's separate castle. There may be a common en- trance, a common hall, and some other parts of the building may be used in common ; but each particular flat is the home of a family, and therefore is inviolable as an}^ separate dwell- ing-house.^ The rule is that a levy is not to be effected by committing a trespass ; and that the trespasser may not only be punished for his offense but the civil act performed by means of the trespass will be invalidated, though there be no other reason for setting it aside.^ § 300. 3I(uj do u'hat would he trespass ifivithout the ivrit. — It IS commonly said that the attaching officer must make him- self liable for trespass in levying upon personal property but for the protection given by the writ; or, in other words, that he must do such acts as would render him liable as a tres- passer if not thus authorized. He may be obliged to do acts, if resisted, Avhich would be not ordinarily justifiable in order to obtain and maintain possession and control. While it is true that a " paper levy " is nugatory, and a mere decla- ration that goods are seized is ineffectual, yet there is no need of manipulation or any harsh taking where there is no resist- ance made. There ought to be an inventory or proper de- scription of that which is attached, and complete change of custody. Even if the person in charge of the property before seizure should remain in charge thereafter, it should be as the appointed keeper that he subsequently holds. But no levy is Cowp. 1 ; Heminway v. Saxton, 3 same cases are reviewed in The Peo- Mass. 222 ; Widgery v. Haskell, 5 id. pie v. Hubbard, 24 Wend. 370, 155; Luttin v. Benin, 11 Mod. 50; Co wen, J. Barlow u Hall, 2 Anstr. 462; Love- i Swain v. Mizner, 8 Gray, 183 ridge v. Plaistow, 2 H. Bl. 29 ; Birch (cited for the principle, though not V. Prodger, 4 Bos. & Pul. 135 ; Lyford the illustration). V. Tyrrel, 1 Anstr. 85 ; Wells v. Gur- - Bally v. Wright, 39 Mich. 96 ; ney, 8 Barn. & Cressw. 769 ; Wilson, § 308. Ex parte, 1 Atk. 152. Many of the 220 ATTACHING. [§§ 301, 302. valid unless the officer gets legal possession ; and get it he must though acts ordinarily deemed trespass become requisite.^ § 301. Triclcery, — Attachment effected by trick, treachery, fraud or trespass is reprobated by the courts and held of no legal force. The wrong-doing officer not onlj'^ exposes him- self to an action in damages for his cunning and rascally ma- neuvers, but he also strikes his own act with illegality, so that the plaintiff cannot avail himself of a seizure so made, though not personally privy to the officer's methods. And when the plaintiff himself is the trickster or the trespasser by means of deception practiced on the officer to induce him to do thino-s smart; or is a co-worker with the latter in executing a legal writ in an illegal Way so as to create a nullity, both are responsible to an3Mnjured party, and the writ is as though it had never been executed.- If the plaintiff, however, is not an instigator or encourager of the officer in acts of decep- tion, intrigue or tricker}^, the officer alone should be held re- sponsible. The court will always judge from the circumstances of each particular case whether the official wrong-doing was such as to invalidate the levy.^ It may relinquish jurisdiction when it finds such to be the case.* §302. Deputy. — The sheriff may deputize a disinterested person to act in his stead, but he cannot authorize the plaint- iff himself to make the levy;^ If the property is in the hands of the defendant the reasons are many and manifest why the 1 Rix V. Silknitter, 57 la. 265 ; Al- R. I. 337 ; Powell v. McKee, 4 La. Ann. len V. McCalla, 25 id. 464 ; Polley v. 108 ; Paradise v. Farmers' & Mer- Lenox Iron Works, 15 Gray, 513; chants' Bank, 5 id. 710; Wingate v. Haggerty v. Wilber, 16 Johns. 287 ; Wheat, 6 id. 238 ; Myers v. Myers, 8 Bailey v. Adams, 14 Wend. 201 ; id. 369 ; Gilbert v. Hollinger, 14 id. Henry v. Quackenbusb, 48 Mich. 441. See Hollister v. Goodall, 8 Ct. 415; Abrams v. Johnson, 65 Ala. 332. 465 ; Cobb r. Gage. 7 id. 619 ; Caw- 3 Hitchcock v. Holmes, 43 Ct 528. thorne v. McGraw, 9 id. 519 ; Foster An otBcer got into a dwelling by pre- V. Mabe, 4 id. 402 ; Goode v. Long- tending that he wanted to see the mire, 35 id. 668. debtor's mother-in-law, and when in 2 Hart V. Seymour, 147 111. 598; attached the furniture. It was held Upton V. Craig, 57 111. 257 ; Lesher that the entry was lawful. V. Getman, 30 Minn. 321 ; Pomroy * Chubbuck r. Cleveland, 37 Minn. V. Parmlee, 9 la. 140; Herring v. 466. Hoppock, 15 N. Y. 409 ; Timmons 5 Dyson v. Baker, 54 Miss. 24. But V. Garrison, 4 Humph. 148 ; Deyo v. see, as to authorizing a deputy, Men- Jennison, 10 Allen, 410 ; Metcalf v. derson v. Specker, 79 Ky. 509. Clark, 41 Barb. 45 ; Nason v. Esten, 2 §§ 303, 304] WRONGFUL LEVY. 221 plaintiff should not serve the summons and make the levy in his own behalf. If the creditor is attaching what is already in his own hands, he has no occasion to summon himself, inter- rogate himself as garnishee, or do any like supererogatory act.^ No interested person can lawfully serve the writ or make the levy — not even the sheriff himself if he is interested.^ § 303. Copy left. — A copy of the order of the attachment is generally required to be left with the person in possession of the premises on whom the writ is served ; and the omission of this has been held fatal,^ though it should rather be treated as an irregularity.* YI. Weongful Levt.^ § 304. Plaintiff^s instructions. — The writ is not usually di- rected against particular things but against the alleged debt- or's effects in general. The plaintiff may point out particular property of the defendant and instruct the officer to attach it, but if it should turn out that the thing thus pointed out and seized does not belong to the defendant, both the plaintiff and the seizing officer would be liable for the wrono' done.^ The instructions would be a protection to the officer, between him- self and the plaintiff ; '^ but not between himself and the injured party. The third person whose property is wrongfully at- tached as that of the defendant has his action for damage against the officer, or the plaintiff, or both, as the nature of the wrong done may indicate, w^hether he has intervened in the attachment suit to protect his property or not;^ whether he has demanded of the officer a release of the property or not;^ whether he has received the property of the officer and 1 Graighle v. Notnagel, Pet. C. C. v. Long, 104 U. S. 229 ; Griffith v. 246. Smith, 22 Wis. 646 ; Gower v. Emery, 2 Dyson u Baker, 54 Miss. 24. 18 Me. 79; Nelson v. Cook, 17 111. 3 Sparp V. Baird, 43 Cal. 577. 443 ; Battis v. Hamilton, 22 Wis. 669 ; * Wilkins v. Tourtellott, 28 Kan. Union Lumbering Co. v. Tronson, 36 825. id. 126; Halpine v. Hall, 42 id. 176; * Ch. 24 Lesher v. Getman, 30 Minn. 321. 6 Conner v. Long, 104 U. S. 229; STrieber v. Blacher, 10 Md. 14; Marsh v. Backus, 16 Barb. 483 ; Tufts Shuff v. Morgan, 9 Martin (La.), 592. V. McClintock, 28 Me. 424 ; Richard- ^ Rodega v. Perkerson, 60 Ga. 516 ; son V. Hall, 10 Md. 399. Stickney v. Davis, 16 Pick. 19 ^Page V. Belt, 17 Mo. 263; Conner 222 ATTACHING. [§§ 305, 306. given bond for its delivery upon demand or not.^ Objections to the levy without specifying the defects is futile.^ § 805. Due diligence. — The attaching officer is bound to use all reasonable diligence in ascertaining that the property he is about to seize belongs to the defendant and is liable for the debt; he should make thorough inquiry and learn with as great a degree of certainty as possible that the property is attachable, since otherwise he seizes at his peril.' lie should inquire of the person in charge of personal property as to its ownership.* § 306. The seizing officer is not liable as a trespasser when he docs his whole duty and yet some wrong ensues which is beyond possible forecast and beyond his control. If he makes all requisite inquiry, uses all legal precaution against error, and all reasonable diligence, he ought not to be subjected to the reparation of damages not resulting from his fault. Officers are human, and the law does not hold them responsible for lack of infallibility. Doing the best possible under the circum- stances of any particular case, and acting with perfect impar- tiality between the parties and with entire respect for the rights of others, a seizing officer should be treated with leniency even when through error of judgment or ignorance of fact after due inquir}^ he should cause damage to another. Under such circumstances he may be legally responsible, but he ought to have liberal consideration by court and jury.^ There are many cases in which it is very difficult for the most astute inquirer to ascertain whether certain property 1 Turner v. Lytle, 59 Md. 199, under Foss v. Stewart, 14 Me. 312 ; Sibley act of 1876 ; Johns V. Church, 12 Pick. v. Brown, 15 id. 185; Saugster v. 557; Robinson v. Mansfield, 13 id. Commonwealth, 17 Gratt 124; Coo- 139. per v. Newman. 45 N. H. 339 ; Meade 2 Davis V. Dallas N. Bank (Tex.), 26 v. Smith, 16 Ct. 346 ; Lynd v. Pickett, S. W. 222; Publishing Co. v. Hitson, 7 Minn. 184: Caldwell v. Arnold, 8 80 Tex. 234. id. 265 ; Ford v. Dyer, 26 Miss. 243 ; 3 Carlton v. Davis, 8 Allen, 94; Hurlbut v. Hardenbrook (la.), 52 N. Morrill v. Keyes, 14 id. 222 ; Gilman W. 510. V. Hill, 36 N. H. 311 ; Richards v. 4 Hildreth v. Fitts, 53 Vt 684. Daggett, 4 Mass. 534 ; Gibson v. 5 Luce v. Hoisington, 54 Vt 428 ; Jenny, 15 id. 205 ; Smith v. Sanborn, Barrett v. White, 3 N. H. 210 ; Taylor 6 Gray, 134 ; Howard v. Williams, 2 v. Jones, 42 id. 25 ; W^akefield v. Fair- Pick. 80 ; Woodbury v. Long, 8 id. man, 41 Yt. 339. 543; Bean v. Hubbard, 4 Cush. 85; §§ 307, 308.] WKONGFUL LEVY. 223 belongs to the debtor or not. He may be baffled in his inves- tigation by false statements on the part of the defendant or of some next friend who is trying to cover the property to prevent its seizure. In the heat of contention men sometimes yield to temptation to falsity, and convey wrong impressions to a seizing officer, and try to satisfy their consciences with the erroneous assumption that all is fair in war. § 307. Third persons ousted. — Even though the third pos- .sessor, whose lawful possession has been disturbed, may have had the property returned upon his giving a receipt therefor (as mentioned in section 304), the unlawful taking was tres- pass.^ His receipt would bind him to hold the property sub- ject to the order of court, and oblige him to restore it if the levy should be sustained : so his right of action would depend on the decision in such case. The officer is liable for seizing, in a carrier's hands, goods not the defendant's, and refusing to surrender them:^ the refusal to restore aggravating the trespass, though he ought not to be judged harshly when he has attached in good faith and has relinquished with ready good- will as soon as he was credibly informed of his mis- take. He .would not be liable to the third person so dis- turbed in possession if he was led into his mistake by such person himself; and if the plaintiff induced the error by point- ing out the property as that of the defendant, he would be bound to indemnif}^ the officer for whatever the injured third party had recovered. § 308. Trespass. — It is trespass to execute a writ of attach- ment upon property not attachable.'' Indeed, the officer can hardly invest himself with the possession of property belong- ing to another without doing that which would amount to trespass were he not under the protection of the law and act- 1 Williams v. Morgan, 50 Wis. 548 ; ville v. Brown, id. 79 ; Howard v. Perrj v. Williams, 39 id. 339 ; Rob- Williams, 2 Pick. 80 ; Eldridge v. inson v. Mansfield, 13 Pick. 139 ; Lancy. 17 id. 352 ; Walker v. Fitts, Morse v. Hurd, 17 N. H. 246 ; Car- 24 id. 191 ; Cooper v. Newman, 45 penter v. Dresser. 73 Me. 377. N. H. 339 ; Foss v. Stewart, 14 Me. 2Rodegau Perkerson, 60 Ga. 516. 312; Bradley v. Arnold, 16 Vt. 382; 3Ladd V. Hill, 4 Vt. 164; White v. Kiff v. Old Colony, etc. R. Co., 117 Morton, 23 id. 15 ; Bean v. Hubbard, Mass. 591 ; Rodega v. Perkerson, 60 4 Cush. 85 ; Lynd v. Picket, 7 Minn. Ga. 516 ; Ellis v. Bonner, 80 Tex. 198; 184; Richards v. Daggett, 4 Mass. Allen r. Kirk, 81 la. 658; §^5 299, 300. 534 ; Gibson v. Jenny, 15 id. 205 ; Mel- 224: ATTACHING. [§ 309. ing as its agent in executing its process.^ He could be little liable to the defendant for laying a second attachment on per- sonal property already in his hands, when the second was under a writ against the same defendant to whom the first was opposed ; for, if the defendant is Avronged by being de- prived of his property, the wrong must have been done in tlie execution of the first writ.- The plaintiff is liable if he directed the wrongful seizure,' but not liable otherwise, when the property attached is not that of the defendant but of a third person,* unless he avails himself of the levy.^ If so, it is no excuse for him that he is really a creditor of the third person w^hose property is attached.^ If, after the wrongful attach- ment of a third person's property, other attachments be laid upon it, the oflBcer is liable for trespass only in making the first levy.'' The attaching creditor may render himself liable to other creditors by seizing too much or seizing on false grounds.^ It is held that the defendant waives damages by compromising with the parties plaintiff after a wrongful at- tachment.^ § 309. Every taking of another's property in the act of levy- ing upon the defendant's goods is not either an attachment of it or a trespass. The officer may have to take temporarily in hand the unattachable vessel in which the attachable goods are contained, or remove the contents of a vessel that is to be attached, etc., without committing any trespass or any w^rong; or he may take goods of another when found as part of the common stock of the defendant,^" to separate them from the stock. 1 Henry v. Quackenbush, 48 Mich. Perrin v. Claflin, 11 Mo. 13 ; Norman 415 ; McNeil v. Moore (Tex.), 27 S. v. Home, 36 Mo. App. 419 ; Alfred v. W. 163 ; Camp v. Cliamberlain, 5 Bray, 41 Mo. 487 ; Kauunck v. Cas- Denio, 198 ; McBurnie v. Overstreet, tleman, 29 Mo. App. 664 ; Wetzell v. 8 B. Monroe, 300 ; Beekman u Lan- Naters, 18 Mo, 396; Peckham v. sing, 3 Wend. 446 ; Westerf elt v. Glass Co., 7 Mo. App. 593 ; Luebber- Pinckney, 14 id. 123 ; Good v. Long- ing v. Oberkoetter, 1 id. 393. mire, 35 Ala. 668; Allen v. McCalla, (-Miss. Mills v. Meyer, 83 Tex. 433. 25 la. 464 ; Haggerty v. Wilber, 16 • Ginsberg v. Pohl, 35 Md. 505. Johns. 287. 8 Frieberg v. Frieberg (Tex.), 19 2 Luce V. Hoisington, 54 Yt. 428. S. W. 791. 3 Corner v. Mackentosh, 48 Md. 374. ^ Judson v. Lewis, 7 La. Ann. 55. 4 Butler u. Borders, 6 Blackf. 160. lO Franklin v. Gumersell, 11 Mo. 5 Lovejoy v. Murray, 3 Wall. 1 ; App. 306 ; Hewes v. Parkman, 20 § 310.] WRONGFUL LEVY. 225 How can a sheriff always accurately distinguish between the defendant's property and that of others when both are in- termixed? Sometimes he may attach the mass, after all re- quired effort to distinguish the one part from the other, or when the compound is of a nature to render the ingredients indistinguishable; and he must show such fact in his return.^ He is bound to separate the defendant's from the other's por- tion, and to avoid the attachment of the latter, or to give it up after seizing and before making his return, if the owner thereof exhibits to him satisfactory evidence of his ownership and the part claimed is susceptible of separation from the whole.- If the confused goods are in possession of a third person who owns them in part, the situation would be mani- festly different from that where the defendant is in possession ; and the officer ought not to seize the mass and take it into custody.' The defendant's portion could be reached b}^ gar- nishment. Damages cannot be successfully claimed by one who stood by and saw his non-liable goods attached with liable property.* § 310. Damages. — When the seizing officer renders himself liable to damages as a trespasser for wrongfully seizing the property of some person other than the defendant in execut- ing a writ of attachment, he involves his sureties also,^ If attached property is injured while in the custody of the officer and through his fault, he will be liable in damages to the owner in case the plaintiff should relinquish the attach- ment.^ If the seizing of it is the ground of complaint, the wrong should be charged as done to the property so as to make the officer a trespasser ah initio; not as done to the Pick. 90 ; Towns v. Pratt, 33 N. H. 206. Compare First Nat. Bank v. 345. Houts, 85 Tex. 69. 1 Sawyer v. Merrill, 6 Pick. 478 ; ^ Sangster v. Commonwealth, 17 Morrill v. Keyes, 14 Allen, 222 ; Wal- Grat. 124 : State v. Moore, 19 Mo. cott V. Keith, 3 Fos. 196; Albee v. 369: Peoples. Schuyler, 4 Com. 173; Webster, 16 N. H. 363 ; Wilson v. Rodega v. Perkerson, 60 Ga. 516 ; Lane, 33 id. 466. Archer v. Noble, 3 Me. 418 ; Harris v. 2 See Davis v. Stone, 120 Mass. 228; Hanson. 11 id. 241 ; Commonwealth Shumway v. Rutter, 8 Pick. 443; v. Stockton, 5 Mon. 193; Carpenter Treat v. Barber, 7 Ct. 274. v. Dresser, 72 Me. 377 ; Van Pelt v. 3 Id. Littler. 14 Cal. 194; Becker v. Dun- * Goetz V. Hanchett, 40 111. App. ham, 27 Minn. 32. 15 6 Becker v. Bailies, 44 Ct. 167. 226 ATTACIIIXG. [§311. proceeds.^ The damages for unlawful seizure may include loss of business with respect to goods seized, costs of defense, etc.,2 but not always attorney's fees.' § 311. In most of the states an action cannot be maintained on w^rongful attachment unless there has been a decision against the plaintiff in the attachment suit.* If malice is charged in such action the jury may presume it, if the party charged had no probable cause to believe the allegations he made in his affidavit to procure the attachment.'^ A judg- ment in favor of the creditor, sustaining the attachment made by him of the defendant's property, w^ould obviously render a subsequent suit for damages for wrongful attachment by the attachment defendant against the attaching creditor both unnecessary and absurd ; indeed, such action could be defeated at the threshold by pleading tlie former judgment. But it is not the practice in all of the states for the defend- ant to await the decision of the attachment suit before claim- ing: damaixes for wrong'ful attachment. In some the defend- ant ma}'" reconvene, claiming damages, when he answers in the attachment suit. He may claim them when the attach- ment has been abandoned ; but its abandonment creates no presumption that it was wrongful.^ 1 Bentley v. Wliite, 54 Vt. 564. Petty v. Lang, 81 Tex. 238, 242 ; 2 Marqueze v. Southeimer, 59 Miss. Watts v. Nichols, 32 Hun, 276. 430, in exposition of Miss. Code, 1880, » Bozeman v. Shaw, 37 Ark. 160. § 2340. 6 Frank v. Tatum (Tex.), 26 S. W. 3 Patton V. Garrett, 37 Ark. 605. 900. * Swan V. McCracken, 7 Lea, 626 ; CHAPTEE IX. THE RETURN AFTER DIRECT ATTACHMENT. L Stating the Execution of the Writ §§ 312-317 II. Description op Attached Property 318-321 III. Requisites op the Return . , 323-331 IV. Amendments 332-338 V. Return "Not Found" — Order of Publication . . 339-341 VI. Publication Notice 343-355 I. Stating the Execution of the "Weit. §312. How executed. — The officer who has executed the writ must account, within the time specified therein, to the court, in writing, showing whether he has seized any prop- erty ; what he has seized ; that it belongs to the defendant ; how and when he took it from the defendant, or how and when he attached in the hands of third persons, and all essen- tial matters.^ The court takes its knowledge of the actual attachment from the sheriff or other seizing officer's official report of it ; that is an indispensable link in the chain of the proceedings; and the officer should make the statement full and clear, but no form is prescribed and technical accuracy is not required.' It is necessary that the attachment and return be by an officer.^ § 313. The important matter is certainty and a substantial compliance with the law.* Thus, the recitation of the affida- 1 Page V. Generes, 6 La. Ann. 551 ; 2 Rowan v. Lamb, 4 Greene, 468 ; Stockton V. Douney, id. 581 ; Nichols Byrd v. Hopkins. 8 Sm. & M. 441 ; V. Patten, 18 Me. 231 ; Desha v. Baker, Bannister v. Higginson, 15 Me. 73 ; 3 Ark. 509 ; Gibson v. Wilson, 5 id. Baldwin v. Conger, 17 Miss. 516. 422; Willard v. Sperry, 16 Johns. 121 ; 3 Joseph v. Cawthorn, 74 Ala. 411. Bryan v. Trout, 90 Pa. St. 492 ; Moore * Pond v. Baker, 55 Vt. 400 ; Buck- V. Kidder, 55 N. H. 488; Wilder v. i\nv. Crampton, 20 id. 261; Thomp- Holden, 24 Pick. 8; Painer. Farr, 118 son v. Eastburn, 16 N. J. L. 100; Mass. 74 ; Moore v. Coates, 43 Miss. Meuley v. Zeigler, 23 Tex. 88 ; Stod- 225 : People's Bank v. West, 67 id. art v. McMahan, 35 id. 267 ; Saund- 729 ; Hall v. Stevenson, 19 Oreg. 153 ; ers v. Columbus, etc. Ins. Co., 43 Miss. Brown v. Carroll, 16 R. L 604. 583 ; Tucker v. Byars, 46 id. 549 ; 228 KETURN AFTER DIRECT ATTACHMENT. [§ 314. vit should be made if the statute requires it ; ^ and any require- ment as to the defendant's ownership of the property, descrip- tion, valuation, time and manner of attaching, etc., must be obeyed; but, in the absence of express statutory injunc- tions on these subjects with respect to the return, all that is necessary is an honest report showing obedience to the writ. § 314. That attached property hclongs to defendant should appear. — The fact that the property was seized as that of the defendant should plainly appear if not definitely stated.'^ Should the return fail to state this fact, yet aver that the at- tachment was made in obedience to the writ, there is an im- plication that the property was seized as that of the defend- ant.'' And officers have been allowed to make the statement definite in this respect by emendation after filing.* There is no important conflict of decisions on this subject. It is well settled that if the statute makes it sacramental that the officer must definitely state that the propertj^ belongs to the defendant, he must comply ; that if it does not, no direct statement is necessary if there is shown a substantial obedi- ence to the writ ; that the statement of ownership is conclusive only of the fact that the property was seized as that of the person, named ; that the question of ownership is yet open for contest between those interested in its assertion or denial, and that the plaintiff is not to lose the benefit of his attachment Rankin v. Dulaney, 43 id. 597 ; Whar- 5 Randolph, 596 ; Stoddart v. Mc- ton V. Conger. 17 id. 510 ; Ezelle v. Mahon, 35 Tex. 267 ; Banister u Hig- Simpson, 42 id. 515; Jeffries v. Har- ginson, 15 Me. 73. vie, 38 id. 97. 3 Horton v. Monroe (Mich.), 57 N. W. 1 Woodley v. Shirley, Minor, 14. 109 ; Miller v. Fay, 40 Wis. 633 ; John- '^ Buck Reiner Co. v. McCoy (la.), 52 son v. Moss, 20 Wend. 145 ; Porter v. N. W. 514; Windmiller v. Chapman, Pico, 55 Cal. 165: Bickerstaflf r. Pat- 139 111. 163; Pierce v. Jackson. 65 N. terson, 8 Port. 245; Kingr. Bucks, 11 H. 121; Barron v. Smith, 63 Yt. 121; Ala. 217; Thornton v. Winter, 9 id. Curwensville Manuf. Co. u Bloom, 10 613; Lucas v. Goodwin, 6 id. 831; Pa. Co. Ct. R. 295 ; Cousins v. Alworth, Saunders v. Columbus Life Ins. Co., 44 Minn. 505 ; Robertson v. Hodge, 83 43 Miss. 583 ; Kirksey v. Bates, 1 Ala. Va. 124 ; Ofterdinger v. Ford, 86 Va. 303 ; Miller v. McMillan, 4 id. 527. 917. Compare Willis v. Mooring, 63 See McClure v. Smith, 14 Colo. 297. Tex. 340 ; Rapine v. McPherson, 2 ^ Mason v. Anderson, 3 T. B. Mon. Kan. 340 ; Anderson u Scott, 2 Mo. 293 ; Anderson v. Scott, 2 Mo. 15 : 15; Maulsby v. Farr, id. 438; Ridge- Bank of North West v. Taylor, 16 way V. Farr, id. 440 ; Mason v. An- Wis. 609 ; Buller v. Woods, 43 :Mo. derson, 3 Mon. 293 ; Clay v. Neilson, App. 494. I §§ 315, 316.] STATING EXECUTION OF WKIT. 229 because the defendant was not definitely named as the owner in the return. § 315. The defendant who has been summoned, or who has appeared, cannot deny that the property seized is his,^ or complain that the officer did not report it to be his. If, how- ever, he is notified only by publication and does not appear; and if it were good law that any property of his can be exe- cuted to effectuate a judgment against him under such cir- cumstances,- he would be interested afterwards in showing that the attached propert\^ was not his and that publication alone did not give jurisdiction. So a purchaser defending an ejectment suit is vitally interested in the question whether the attached and condemned property belonged to the attach- ment defendant. But in neither case can the officer's return be taken as proof of the fact. Both may be concerned as to his return of ownership with regard to the validity of the at- tachment; for if it is reported as belonging to any other per- son than the defendant, the attachment is void. The proceed- ing being iii rem with limited notice and effect cannot hold as one against a thing irrespective of persons. § 316. Defendant's i)resence immaterkd. — Whether the de- fendant is in court or not it ought to make no difference with regard to the importance of stating in the return the fact that the property attached belongs to him. The attachment's va- lidity does not depend upon his being served or being in court. If invalid, his appearance does not necessarily cure it; if valid, his non-appearance after notification by publication cannot impair it. Distinction has been made, however,^ but it has not been generally drawn. The description of personal property as belonging to the defendant has been held necessary,* yet the taking of the property from the possession of the defendant, its preserva- tion in the custody of the sheriff, and the presumption that that officer has done his dut}^ and that his answer is respon- 1 Campbell v. Morris, 3 Harris & erty were attached ; Clay v. Neilsou, Henry (Md.), 553. 5 Randolph (Va.), 596; Mason v. An- - See chapter on Jurisdiction. derson, 3 ]Monroe, 293 ; Anderson v. 3 Stoddart v. McMahon, 35 Tex. Scott, 2 Mo. 15 ; Maulsby v. Farr, 3 267 ; Meuley v. Zeigler, 23 id. 88. id. 438 ; Ridgeway v. Farr, id. 440 ; * Pond V. Baker, 55 Yt. 400, in Repine v. McPherson, 2 Kan. 340. which both real and personal prop- 230 RETURN AFTER DIRECT ATTACHMENT. [§§ 317, 318. sive to the command that he seize property of the defendant, should be deemed sufficient and has been so considered.^ The plaintiff is relieved from filing his affidavit that there is no personalty in order to attach realty, when the sheriff has re- turned no personalty found and realty attached to execute judgment.^ § 317. Title need not he slioivn. — If property, real or per- sonal, is attached as the defendant's, and is really his, and is described with certainty, it seems of little importance what the sheriff says about the title, unless he should aver the title to be in some person other than the defendant. Should he make return that he has seized some third person's land, the attachment would be invalid since it depends much upon the return; the presumption that the officer had done his duty would be removed, and the notice to the tenant in possession would not alone constitute a valid levy. If the defendant, in the absence of any statement by the sheriff as to whom the attached property belongs, should ap- pear and claim it, he would be estopped from afterwards attacking the attachment on the ground that the pro|)erty was not his, unless his title has accrued since the levy. The ques- tion always is, whether the property belonged to the defend- ant at the precise time when it was attached. If he sold and transferred it before, or if he bought it since, the attachment is invalid. Nearly all the difficulties with respect to the at- tachment of land as that of the defendant depend for solution upon ])rinciples applicable to titles, which the opinion and statement of the sheriff does not at all affect. However, if property is attached as the defendant's when it was not and is not his, he has no interest to attack the attachment. II. Description of the Attached Property. § 318. Identification. — The law is well settled as to what other description of the attached property is necessary. It must be such as to identify it. Seeming conflicts of decisions 1 Drake v. Mooney, 31 Vt. 619; teison, 8 Porter, 245; King t\ Bucks, Porter v. Pico, 55 Cal. 165; Johnson 11 Ala. 217. See Silver Bow, etc. Co. V. Moss, 20 Wend. 145 ; Lucas v. God- v. Lowry, 5 Mont. 618. win, 6 Ala. 831 ; Bickerstaff v. Pat- 2 Webster v. Daniel, 47 Ark. 131. § 31S.] DESCRIPTION OF ATTACHED PKOPEETT. 231 on this subject will be found not really such. The differences turn upon details — whether they amount to certainty of iden- tification in particular cases. In this there is nothing remark- able, since the circumstances differ in every case, and courts are always likely to vary with each other in their views of evidence on minor points. The principle may be fairly said to be uniformly recognized that the return must show to a certainty what has been attached, and describe it so that it cannot be mistaken for something else. A ship is sufficiently identified if described as the ship Orion, of seven hundred tons burden, together with her tackle, apparel and furniture, the property of the defendant herein; the steamboat iVa^cA^s, etc. (similar additions following) ; but should a nameless and unknown water-craft be attached, such as a flat-boat, a more particular characterization would become necessary, such as the length and width, or some other matter essential to the identity of the property. The best description of land is by metes and bounds, but it is not indispensable. If the defend- ant owns but one farm in a county, and the return is that his farm in that county is attached, it would ordinarih^ be suffi- cient in an attachment proceeding,^ since only the defendant can be concluded by the judgment, though it would be insuffi- cient were the proceeding one to conclude the world, like an action to fix the status of a thing forfeited. So, if the attach- ment defendant owns but one house and lot in a city, it would be better to describe it, for instance, as the three-story brick house, numbered three hundred and sixty, on Thalia street, in the square numbered forty on the city plan, etc., together with his lot on which the house stands, giving the names of the streets which bound the square; but if it is the only house of the defendant situated in the city, it might be designated as his house, together with his lot on which it stands, in the city. The sheriff is not absolutely bound to resort to the records and give a synopsis of the recordation, but that would enable him to give a better description.^ 1 Moore v. Kidder, 55 N. H. 488 ; scription would be sufficient to point Howard v. Daniels, 2 id. 137 ; Crosby to the records for a perfect descrip- V. Allyn. 5 Greenl. 453. tion. Bryant v. Osgood, 52 N. H. 188. ^ Such certain though general de- 232 RETURN AFTER DIRECT ATTACHMENT. [§§ 319, 320. §319. Descriding store goods. — A stock of goods is often the subject of seizure. If the whole stock in a store is at- tached, described as the defendant's entire stock of dry goods, or of hardware, or of groceries, as the case may be; as being in a certain building (giving the number of the building and the name of the street, city, etc.), the description could not be mistaken; and as the sheriff must take the key and keep control personally or through a deputy or some other appointed custodian, there could hardly be raised any question as to the identity of the property seized.^ He is not obliged, in every case, to take an invoice of the goods and attach it to his re- turn.' §320. Certainty. — Should he attach only some portion of the goods, certainty would require that he make an inventory and attach it to his report. Should he attach a single article, he should designate it with precision. Suppose a horse is attached: if returned simply as ''a horse" belonging to the defendant, the indefiniteness would not render the attachment vicious, since the officer would have the attached horse in custody; but it would be better to say a bay horse, white, black, as the case might be; and if the animal is a noted one — a celebrated trotter, for instance — the name would conduce to a better description. Courts will judge, in each particular case, whether the property seized is properly iden- tified, or whether it is so loosely described as to be easily 'confounded with other property.^ When "all" of the de- 1 Mayer v. Brooks, 74 Ga. 526. Pettengill, 13 id. 341 : Ela v. Shepard, 2 There must be an inventory, 32 id. 277 ; Bryant i'. Osgood, 52 id. when. White r. Prior, 88 Mich. 647 ; 182; Crosby v. Allyn, 5 Me. 45.3: Langtry v. Circuit Judge, 68 id. 451. Haynes v. Small, 22 id. 14 ; Carleton General enumeration of goods may v. Ryerson, 59 id. 438 ; Newhall v. suffica Sweetzer v. Sparks [Tex. Kinney. 56 Vt, 591 ; Pond v. Baker, App.), 21 S. W. 724. See Kern v. 58 id. 293 ; Fullam r. Stearns, 30 id. Wilson, 82 la. 407. 443; Toulmin v. Lesesne, 2 Ala. 359; 3 Porter v. Pico, 55 Cal. 165 ; Fen- Gar}- v. McCown, 6 id. 370 ; Pearce glin V. Cairo & St. Louis R. R Co., 6 v. Baldridge, 7 Ark. 413 ; Porter v. Mo. App. 580; Pierce v. Strickland, Byrne, lOInd. 146; Messner r. Lewis, 2 Story, 292; Buckhardt v. McClel- 20 Tex. 221 ; Meuley r. Zeigler, 23 id. Ian, 1 Abb. App. Dec. 263 ; Oysted v. S8 ; Hancock v. Henderson, 45 id. Shed, 12 Mass. 513; Taylor r. Mixter, 479; Hilliard f. Wilson, 76 id. 180, 11 Pick. 341; Welsh v. Joy, 13 id. Rogers v. Bonner, 55 Barb. 9; Perrin 477 ; Baxter v. Rice, 21 id. 197 ; Moore v. Leverett, 13 Mass. 128. V. Kidder, 55 N. H. 488; Bruce v. § 321.] DESCKIPTION OF ATTACHED PROPERTY. 233 fendant's property was returned as attached, the description was held sufficient.^ An attachment may be dissolved because of uncertainty of description in the return, if the defect is not cured in any legal way, because the validity of the lien depends upon posi- tiveness as to that upon which it rests ; and as a tenant in possession of real estate would have no proper notice by an inadequate description indorsed upon the writ served upon him, there would be no valid attachment.^ § 321. Value. — Since the sheriff's duty is to attach prop- erty enough to cover the claim sued upon, when he is not restricted to less by instructions from the plaintiff, he should designate in his return the approximate value of whatever he has seized, which may be ascertained by appraisement, and which must be so ascertained under some statutes.* An ap- praiser's certificate put on the back of the writ, and made part of the return, is sufficient report of the value of goods attached.* A return showing enough property seized to sat- isfy the sum claimed by the plaintiff in his prayer w^ill show substantial obedience by the officer to the mandate, though the several counts of the plaintiff's declaration may amount to a statement of greater indebtedness on the part of the de- fendant than that for which the plaintiff prayed.^ 1 Carter v. Koshland, 13 Oreg. 493. be cured by legal presumption where A description of cattle in range by the statute does not imperatively re- brands, etc., was held sufficient, quire a statement of the amount. Davis V. Dallas N. Bank (Tex. App.), Childs v. Ham, 33 Me. 74 ; Barney v. 26 S. W. 223, distinguishing Gunter Weeks, 4 Vt. 146. V. Cobb, 82 Tex. 603. But the return * Kennedy v. Pike, 43 Me. 423 ; must show where the cattle are. Horton v. Monroe (Mich.), 57 N. W. Keniston v. Stevens (Vt.), 39 A. 313. 109. 2 Pond V. Baker, 55 Vt. 403 ; Meu- ^when the amounts claimed in ley V. Zeigler, 23 Tex. 88 ; Porter v. the counts in the writ exceed the ad Byrne, 10 Ind. 146 ; Hathaway v. damnum, the statement of the latter Larrabee, 27 Me. 449 ; Lambard v. as " the sum sued for " was held to Pike, 33 id. 141 ; Henry v. Mitchell, be a compliance with the law in an 33 Mo. 513; Fitzhugh v. Hellen, 3 officer's return to the registry of Har. & J. 306. See Green v. Pyne, 1 deeds of an attachment of real es- Ala. 335. tate. Lincoln v. Strickland, 51 Me. 3 Neglect to insert the value may 321. 23i EETCEN AFTER DIRECT ATTACHMENT. [§§ 322, 323. III. KeQUISITES of THE EeTURN. § 322. On wliom ivrit served. — If a corporation is served, the officer should show upon what representative of the body the service was made. There should not be a vague state- ment that the writ was served upon an agent of the corpora- tion; for, though his name may be coupled with his designa- tion as agent, it may be that he is not such an agent as will make the service upon him a legal one on his principal. He should be described.^ Every agent of a corporation cannot stand for the body when it is suing or being sued. The pres- ident is usually the proper representative of a corporation upon whom process binding it may be served, but an inferior officer may be duly authorized to represent a corporation in this re- spect. How are we to know, when an officer names a man on whom process has been served, and adds that he is agent of tht) corporation (defendant or garnishee in the suit, as the case may be), that the corporation itself has been reached ?- § 323. Iveturn of service is defective in Louisiana if it does not state the name of the person served, or account for not stating it; and, generally, if it does not state that such person resided at his domicile when served.^ A return showing prop- erty attached but no service on either of two defendants, and no reason given for the omission, does not warrant an order of publication;^ and it must show from whose posses- sion the property was taken.^ Presumption favors the re- turn,^ but essentials must appear.^ 1 Hargis v. Eailroad Co., 90 Ga. 42. Cole v. Hocha, 21 id. 613 ; Feazel v. 2 Held in Lake Shore, etc. Ry. Co. Cooper, 15 id. 462 ; Corcoran v. Rid- V. Hunt, 39 Mich. 469, that, under dell, 7 id. 268 ; Oakey v. Drummond, g 6463, Comp. Laws (Howell's Stat, 4 id. 363 ; Kendrick's Heirs v. Ken- §8055), the "general or special agent" drick, 19 La. 36; Pilie v. Kenner, 16 of a corporation on whom a sum- id. 570; Lacej- r. Kenley, Sid. 16 ; Put- mons in garuisiiment may be served nam v. Banking Co., 3 Rob. (La.) 232. is one having controlling authority "* Cochrane v. Johnson, 95 Mich. 67 ; in respect to some department of How. Stat., § 8003. corporate business, and return of ^ White v. Prior, 88 Mich. 647. service on " John W. Drew, agent of ^ Head v. Daniels. 38 Kan. 1. the within named defendant," was ^.^fe, generalh^ Riordan r\ Britton, insufficient 69 Tex. 198 ; Barron v. Smith, 63 Vt 3 Lehman v. Broussard, 45 La. Ann. 121 ; First N. Bank v. Greenwood, 79 ; O'Hara n Improvement Co.. 42 Wis. 269; Spengler v. O'Shea, 65 id. 226; Adams v. Basile, 35 id. 101; Miss. 75. §§ 324:, o25.] EEQUISITES OF EETCRN-. 235 § 324:. Eeimrt of notice given. — Where landed property, such as a house and lot, is attached, it is important that notice be given to the tenant in possession, or a copy of the writ left with him, or some act showing the transfer of legal possession from the defendant to the officer, if the law of the state re- quires such methods of seizure or any one of them, or like methods; and whatever is required should be returned as ac- complished.^ It is not sufficient in such case to say that the writ has been served on a garnishee, naming the person in possession.- The attachment of real estate is not proven by the state- ment of a deputy officer that notice of attachment has been lodged in the office of the clerk of the court.^ § 325. Date. — Personalty was attached on one day and realty on another. Lists of property were appended showing the respective dates, and the return was held sufficient.^ When the officer has served several attachments and made levies in each on the same property, he should report in each case that he .has seized that property under the writ issued therein,-^ giving the exact dates of each seizure. Where the law requires .wit- nesses to the levy, their names must appear in the return,^ for where there are competing attachments, and where other evi- dence than the marshal's or sheriff's report is allowable, the insertion of the witnesses' names is a means of avoiding much possible contention. In such case, where fractions of a day are noticed, the exact date of the levy, even to the minute, becomes of vital importance. If two attachments are in com- petition, and the return of one shows execution at noon while that of the other specifies the same day but no hour, it has been held that the first will be marshaled as the hig-her in rank.^ A return being accurate as to the time of the levy but in- definite as to that of the summons, the presumption has been . 1 People's Bank v. "West, 67 Miss. ■* Brown v. Elmendorf (Tex. App.), 729 ; Page v. Generes, 6 La. Ann. 551. 25 S. W. 145. 2 Bryan r. Trout, 90 Pa. St. 492 ; 5 Violet v. Tyler, 2 Cr. C. C. 200. But Lake Shore, etc. R. R. Co. v. Hunt, 39 eomjxire Connolly v, Edgerton, 23 Mich. 469; Hayes v. Gillispie, 11 Neb. 82. Casey, 155 ; Anderson v. Scott, 2 Mo. 6 Cabeen v. Douglass, 1 Mo. 336. See 15 ; Sterrett v. Howarth, 76 Pa. St. Morgan r. Johnson, 15 Tex. 568. 438. 7 Fairfield v. Paine, 23 Me. 498; 3 Hodgman v. Barker, 60 Hun, 156. Brainerd v Bushnell, 11 Ct. 16. 236 EETUKN AFTER DIRECT ATTACHMENT. [§ 326. made that the summons -was served on the same day that the property was attached.' It has been held that an attachment shoukl not be dissolved because the sheriff indorsed on the summons the date of its issue as that of its service, when in fact the service was made on the dav following.- §326. When returned. — The return may be made at any hour of the return day.^ It may be made on any day while the writ is alive, but not before its creation or after it has ex- pired. If the date of the writ is later than that of the offi- cer's return, the latter is premature and therefore void.'* If the return day has expired, no return can be legally made.^ A return is unnecessary if the case is settled before the time for return.^ If it is made returnable at a wrong time, objec- tion to it is waived by the defendant's general appearance.^ If it is entered after the return day by consent of the defend- ant, it is held that sureties of his dissolution bond are not thereby discharged.^ And it has been held that a return made a day after the return day does not release the lieu.". And when the precept was not returned on or before the re- turn day and the case was removed to a federal court, the attachment was not dissolved on that ground. '"^ The original writ, with the certificate of the sheriff indorsed on it showing that the writ was executed, was admitted in evi- dence on a trial of title to land derived from the attachment 1 Talcott V. Rozenberg, 8 Abb. Pr. suit as supplemental to it Chase v. (N. S.) 287. In this case it seems that Hill, 13 Wis. 222. See Reed v. Fer- tile return did not show that the serv- kins, 14 Ala. 231. ice was made within the time re- * Berry r. Spear, 13 Me. 187. quired by law. Oixlinarily the return ^ Russ v. Butterfield, 6 Cush. 242 ; ought to be sufficient to show that Williams v. Babbit, 14 Gray, 141 ; fact. Brown v. Carroll, 16 R. L 604 ; Kin- 2 Cureton v. Dargan, 12 S. C. 122. caid v. Frog, 49 Kan. 766. 3 People V. Wheeler, 7 Paige (N. Y.), ^ Atwell v. Wigerson, 80 Wis. 424, 433. The exception is made in this Or if the defendant has put up money case, however, that if ordered by the to save his property from levy. Tay- courtto return the writ immediately, lor v. Knowlton, 10 Allen, 137. the officer must do so. Held in Wis- " Wheat v. Bower, 42 111. App. 600. consin that under tYie practice there ^"Lee v. James, 150 Mass. 475. a writ of attachment need not be re- ^ Horton v. Monroe (Mich.), 57 N. turned at any particular time, but W. 109. must be sued out after the principal I'JNims v. Spurr, 138 Mass. 209. §§ 327, 328.] REQUISITES OF EETL"KN. 237 proceedings, though the writ was not duly returned till long after judgment in the attachment case.^ § 327. Where lodged. — The return should be lodged wher- ever the law of any state requires it to be: with the clerk of the court or the register, or the prothonotary, etc., but the re- turning officer is not obliged to present it personally to the receiving officer.- Though a writ be issued in one county and served in an- other, and returned in the first county, a copy must be filed in the second, it is held.'' It cannot be served by the sheriff of a different county from that in which the attached property is located, though both counties be in the same judicial dis- trict, it has been held.* The presumption is that the levy was made in the county in which the writ was issued when there is nothing pointing to the contrary .^ If the writ be returned to the proper court, its recital of another court has been held not fatal.^ The writ is usually returnable to the officer who issued it, but the necessary matter is that it be returned to the court; and even where a statute directs that the return be made to the officer issuing the writ, failure to follow such direction is not fatal to the attachment, nor does it impair the validity of the return. Such a law is merely directory." § 328. When authority must he shown. — Sometimes returns are made by officers who did not make the levies,^ though the practice is neither general nor commendable. When one is appointed to serve a writ, and he is not a deputy sheriff or in any official capacity by which he w^ould be competent to render such duty, he must show his authority in the return — for the validity of his act depends upon his right to act.^ Even if he is an officer, ordinarily empowered 1 Cousins V. Al worth, 44 Minn. 505. Gilbert v. Brown, 9 Neb. 90 ; Hortou 2 Kendall v. Irvine, 42 Me. 839; r. Monroe (Mich.), 57 N. W. 459. Bessey v. Vose, 73 id. 217; Ritter v. ^ Blake v. Camp., 45 Ga. 298. Scannell, 11 Cal. 238. 'Rodgers v. Bonner, 55 Barb. 9; 3 Still V. Focke, 66 Tex. 715; Rev. Post v. Bird, 28 Fla. 1. Stat, § 4829 ; Ezelle v. Simpson, 46 8 McMeekin v. Johnson, 2 Dana Minn. 515. (Kj-.), 459. Held void : Ocley v. * Sadler v. Tatte, 17 Nev. 429. Shepherd, 8 Biackf. 146. 5 Knowles v. Coke Co., 19 Wall. 59 ; sCurrens v. Ratcliffe, 9 Iowa, 309. 23S EETUKN AFTER DIKECT ATTACHMENT. [§§ 329-331. to serve attachment, yet his right to serve a particular attach- ment may be affected by interest.^ §329. SUj)iature. — The signature of the officer to his re- turn should always be made, for reasons apparent; but an inadvertent omission of it would not necessarily invalidate the return. Of course, an unsigned return which he never meant to file would be of no avail should the fact of its sur- reptitious or accidental filing be made to appear; but the at- tachment may have been perfect, though the written evidence of it should want the signature of the oflicer.^ The deputy may sign if he served the writ, but the sheriff is presumed to act through him. If the sheriff has seen the return and allowed it to be filed, he cannot recover of his deputy if it prove to be false.^ There may be circumstances under which he could ; for the deputy might artfully and pur- posely deceive his principal. § 330. Wlien no service. — The officer should show, in case no service has been made, why it has not been made ; as that the defendant could not be found.* He should show why it was not left at the residence of the defendant or at the place of his last residence;^ as, that he has no residence in the county or state. It is important when the character of the attachment suit is to be determined. Thouo^h the debtor be not personally served, there may be a service legally equiva- lent to a personal one, such as leaving the summons and writ at his domicile with a person of proper age.* § 331. Return to a second attachment. — When there has been no legal return made and no writ served in a first attach- ment, a second attacher may treat the first levy as void.^ If 1 Waterhouse v. Smith, 22 Me. 337. 6 Jq Michigan it is a statute re- Hekl that if the oiScer is a party, quirenient that if the defendant can- his return is only prima facie evi- not be fouud in the county, a copy dence. of the writ must be left at his last - Gibson v. Park Bank, 98 N. Y. 87 ; place of residence or the return must Lea V. Maxwell, 1 Head (Tenn.), 365 ; show that he had no such last place Clymore v. Williams, 77 111. 618. of residence. Adams v. Abram, 38 3Wasson v. Linster, 83 N. C. 575. Mich. 302; Id. 304; Smith v. Curtiss. 4 Thomas v. Richards, 69 Wis. 671. id 393 ; Nicolls v. Lawrence, 30 id. In this case held that the defendant, 396 ; Town v. Tabor, 34 id. 265. by absconding, had waived service. ' Stone v. Miller, 62 Barb. 430. 5 Stone V. Hawkins, 56 Ct. Ill; Wilkius V. Tourtellott, 42 Kan. 176. § 332.] AMENDMENT. ,239 the writ has been lost and is not accounted for by any return, an alfidavit that it has been served is held to be without effect ; ^ yet it is the attachment, and not the return, which establishes the lien.- If a first lien has been duly executed and returned, all that is necessary to a second attachment is that the writ be duly served and returned ; no formal act of seizure being required.^ The officer indorses the matter of the return on the writ ; and it is said that the indorsement purporting to have been first made may be shown to have been made last.* If the date of the return is omitted or obscure it is presumed to be subsequent to that of the writ itself.' AYhen the cause of action must be debt due, a writ returned on an attachment for such debt supersedes a prior one on at- tachment for debt not due ; ^ rather, it is the only valid attach- ment. IV. Amendment. § 332. By tlie officer. — The sheriff or marshal has full control over his return before he has had it filed ; and after the filing he may be granted leave to amend it in some ])u.y- ticulars,^ such as adding that the thing attached belongs to the defendant or one or more of several defendants ; ^ speci- fying particular articles ; ^ inserting that a copy of the attach- ment was posted as required ; ^^ substituting the proper name of the court for the wrong designation ; ^^ affixing seal,^- etc., but he cannot be permitted to make out evidence for himself when sued for official wrong-doing by amending his return after it has been duly made.'^ Amendments affecting jurisdic- 1 Stroner v. Prokop, 30 111. App. 56. ^ Harris v. Russell, 93 Ala. 59. Compare Brusie v. Gates, 96 Cal. 265. * Downs v. Flanders, 150 Mass. 92 ; 2 Gerdes v. Sears, 13 Oreg. 358. Mason v. Anderson, 3 T. B. Mon. 293 ; 3 Perry v. Sharpe, 8 Fed. 15 ; Tur- Anderson v. Scott, 2 Mo. 15 ; Bank of ner v. Austin, 16 Mass. 181 ; Whittier North West v. Taylor, 16 Wis. 609. V. Smith, 11 id. 211 ; Hoy v. Eaton, 26 '-* Baxter v. Rice, 21 Pick. 197. La. Ann. 169. lo Wilson v. Ray, T. U. P. Charlt 4 Sanger v. Trammell, 66 Tex. 361. (Ga.) 109. 5 Millett r. Blake, 81 Me. 531. ii Covington v. Cothran, 35 Ga. 156 ; ^Lytle V. Lytle, 37 Ind. 281; Norvell r. Porter, 62 Mo. 309. United States Express Co. v. Lucas, i- Wolf v. Cook, 40 Fed. 432. 36 id. 361 ; Patrick v. Montader, 13 13 Hayues v. Knowles, 36 aiich. 407. Cal. 434. 2i0 RETURN AFTER DIRECT ATTACHMENT. [§ 333. tion cannot be made without proceeding contradictorily with the party to be affected by the change.^ To allow a total omission of a return to be supplied muic pro tunc is irregular, and would be generally held illegal though it is not without a precedent.'^ Ordinarily amendment relates back to the re- turn.' § 333. Errors. — AVhile slight errors of inadvertence may erenerallv be amended, the neglect to state the time of the at- tachment, though it also may be unintentional, cannot always be remedied by amendment.^ The whole question between creditors competing for priority turns usually upon the point of time when one of the attachments was executed ; and to aive the officer the right to amend after an issue made be- tween the competitors would be equivalent to giving him the decision of the issue.^ It would seem to be a correct general ))roposition that an officer cannot amend his return after judgment.^ Even dur- ing the progress of the trial, if he wishes to amend an errone-" ous return, there must be a proper proceeding and showirfg before he can exercise his right to do so," and before api'>eal.^ Slight and unimportant omissions which may be readily supplied by the sense generally conve3''ed will not vitiate a return. Nor will the insertion of superfluous verbiage.** lid.; Montgomery v. Merrill, 36 Clure v. Smith, 14 Colo. 297. But Mich. 97 ; Palmer v. Thayer, 28 Ct. amendments have been liberally al- 237. See Jeffries r. RudJofl, 73 la. 60. lowed when the record showed them 2 Bancroft v. Sinclair, 12 Rich. 617. necessary. Dawson v. Moons, 4 3 Kitchen v. Reiusky, 42 Miss. 427; Mumf. 535; Bullitt v. Winston, 1 id. Smith V. Leavitts, 10 Ala. 92; Lay- 269; Malone v. Samuel, 3 A. K. Mar- man V. Beam, 6 Whart. 181. shall, 350; Gay v. Caldwell, Hardin. ^ Taylor v. Emery, 16 N. H. 359. 63 ; Milliken v. Bailey, 61 Me. 316 : 5 Braley v. French, 28 Vt. 546. Baird v. Rice, 1 Call, 18 ; Emerson v. 6 But in Odom v. Shackelford, 44 Upton. 9 Pick. 167 ; Haven r. Snow, Ala. 331, it was held that the sheriflf's 14 Pick. 28 ; Hutchins v. Brown, 4 return of an attachment sued out by Har. & ;McH. 498. the landlord against the crop of his ^ Braiuard v. Burton, 5 Vt 97 ; tenant may be amended after judg- Harper v. Miller, 4 Ired. 34. ment so as to show that the crop 9 Land returned as " supposed " to levied on had been grown on the belong to the defendant was deemed rented laud. -S'ee Cousins v. Alworth, sufficiently designated as to owner- 44 Minn. 505; Hughes v. Lapice, 5 ship when the fact was that he Sm. & M. 451. owned it. Bannister v. Higgiuson, ^ Sauford v. Pond, 37 Ct 588 ; Mc- 14 Me. 73. Stating that the attach- §§ 334, 335.] AMENDMENT. 241 §334. Presumiytion favors return. — A return may have erroneous words corrected, and omissions supplied, upon rea- sonable presumption. In the absence of proof to the contrary, the officer will be presumed to have done his duty, in matters for the return of which there is no prescribed form.^ When goods are reported as attached, with an omission of the value, the presumption that they are sufficient to meet the demand has been made.- "Where details are not statutorily exacted, an officer may return that he has attached certain described property at a certain time, in conformity to the writ ; and such statement is deemed equivalent to a return of all the facts done which are required to constitute a valid attachment; and, in the absence of fraud, it is sufficient and conclusive of the fact of the attachment ; ^ but whatever details a statute exacts should be stated and not left to be presumed. The general return "duly made," etc., is presumably correct, but it may be con- troverted.^ Reasonable intendments are made in favor of an officer's return.^ § 335. The presumption that an attaching officer has done his duty will not avail to overcome the omission of essential facts ;^ nor can unintelligible statements be supplied by con- jecture.' There is another presumption that may be invoked against an officer who has made an inadequate statement of the facts attending the levy: the presumption that he has ment was made " at the risk of the Miss. (4 S. & M.) 579, " executed " was plaintiff " is mere surplusage, and of presumed to mean regularly exe- no legal effect iu protecting the of- cuted in legal form, ficer. Lovejoy v. Hutchins, 23 Me. 2 Childs v. Ham, 23 Me. 74. 272. SLathrop v. Blake, 23 N. H. (3 1 Fears v. Thompson, 82 Ala. 294 ; Fost.) 46 ; Prather v. Chase, 3 Brews. Classon v. Morrison. 47 N. H. 482 ; (Pa.) 206 ; j\Iorey v. Hoyt, 62 Ct. 542. Miller v. Fay, 40 Wis. 633 ; Lewis v. * Porter v. Pico, 55 Cal. 165 ; An- Quinker, 2 Met. (Ky.) 284. Omission derson v. Graff, 41 Md. 601 ; Crisman to state that a copy of the attach- v. Swisher, 4 Dutch. 149 ; Baldwin v. ment was posted in a " conspicuous Conger, 9 Sm. & M. 516. Held in- place" on a lot seized (there being sufficient: Benjamin v. Shea, 83 la. no tenant upon whom to serve the 392. writ) was held cured by such pre- ^Di-ake v. Mooney, 31 Vt. 619. sumption, when the officer had re- *> Robertson v. Hoge, 83 Va. 124. turned that he had posted it on the "^ Hathaway v. Larrabee, 27 Me. premises. In Redus v. Woffard, 12 449. 16 242 EETUEN AFTEK DIRECT ATTACHMENT. [§ 33G. stated all the facts. It is his duty to indorse upon the writ what he did in serving it ; and he will be presumed to have done so.^ Important facts thus omitted cannot be assumed to have occurred. Errors or omissions in a return, which the affidavit or other part of the record full}'- cures (when not violative of some statute requirement), ought not to militate against the plaintiff so far as to defeat the attachment.- Generall}^, amendment of return should not be allowed to the injury of interveners.^ § 336. When conclusive. — Even though the officer ma}'' not have actually seized the goods of a third person by any ma- nipulation or disturbance of them, putting a keeper over them, or exercising any act of possession whatever in regard to them, yet if he makes a return upon the writ that he has seized them, the real owner may be injured in his credit, put to trouble and expense by the wrongful return, or otherwise injured, so as to have a right of action against the officer; he may have such right though there has been no tortious tak- ing.^ So the attaching creditor may be injured by the action or non-action of the officer; and, in a suit by him for repair of the wrong, the return in the attachment suit is conclusive upon the sheriff and his representatives.^ If, however, the return should contain the statement that the attachment was made under the instructions and " at the risk of the plaintiff," 1 Sharp V. Baird, 43 Cal. 577, in 3 childs v. Barrows, 9 Met 413; which the levy was held invalid, Williams v. Brackett, 8 Mass. 240 ; since the writ did not state an essen- Bowman v. Stark, 6 N. H. 459 ; Eve- tial fact. Instead of presuming that leth v. Little, 16 Me. 374 ; Oilman v. the sheriff had done his duty, the Stetson, id. 124; Means v. Osgood, 7 court assumed that no copy of the id. 146. attachment had been posted as re- *Gibbs n Chase, 10 Mass. 128; quired because not set forth in the M^rston v. Baldwin, 17 id. 606 ; Morse return ; and, under the circumstances v. Hurd, 17 N. H. 246 ; Paxton v. of that case, it could hardly have Steckel, 2 Pa. St. 93 ; Miller v. Baker, held otherwise. 1 Met. 27. See Galloway v. Bird, 4 2Bannisterf. Higginson, 15 Me. 73; Bing. 299; Meany t\ Head, 1 Mason, Miller v. Fay, 40 Wis. 633; Lovelady 319; Pangburn v. Patridge, 7 Johns. V. Harkins, 6 Smedes & M. 412 ; Clan- 140. ton V. Laird, 12 id. 568 ; Nash v. JMal- 5 state v. Penner, 27 Minn. 269. lory, 17 Mich. 232; Kelly v. Oilman, 29 N. H. 385. § 337.] AMENDMENT. 243 that would not be conclusive against the latter, because such assertion is not required by law and therefore forms no proper part of the official paper, as the officer cannot thus make incon- trovertible evidence for himself to be used in case of a suit against him; but the /ac^ that the plaintiff instructed him and took the risk of the attachment, when properly proved at the right time, would shield the officer from a suit by the plaintiff, and enable him to recover of the plaintiff in case damages should be awarded in a suit by third persons against such officer.^ § 337. Not contradicted hy parol evidence.— The general rule is that a sheriff's return, upon attachment and similar writs, cannot be contradicted by parol evidence. It isp7'ima facie true.^ And ordinarily it cannot be thus extended or ex- plained. If the return is false and injurious, the injured party has his remedy by action against the officer for a false return, but the court will receive the official report in the case in which it is made as purporting absolute verity.^ The officer has entire control over the return until it has been filed; the court cannot dictate to him what facts to report ; and after the filing neither the officer at his own volition, nor the court, by directing the officer, can make any change that would affect the vested right of any party. The officer him- self must abide his action, though to his injury,* unless he 1 Lovejoy v. Hutchins, 23 Me. 272 Lesher v. Getman, 30 Minn. 321 Nelson v. Cook, 17 111. 443 ; Gower v. mead, 127 ; French v. Stanley, 21 Me. 512; Mentz v. Hamman, 5 Whart. 150; Haynes v. Small. 22 Me. 14; Emery, 18 Me. 79 ; Sanders v. Hamil- Sample v. Coulson, 9 Watts & Serg. ton, 3 Dana (Ky.), 550 ; Humphreys v. 62 ; Paxton v. Steckel, 2 Pa. St, 93 ; Pratt, 2 Dow & Clark, 288, Clarke v. Gary, 11 Ala, 98; Rowell v. 2 Hammond v. Starr, 79 Cal, 556 ; Klein, 44 Ind. 290 ; Splahn v. Gilles- Morse v. Smith, 47 N. H. 474 : Smith pie, 48 Ind. 397. Compare Tuck v. V. Smith, 24 Me. 555 ; Chapline v. Rob- Manning, 63 Hun, 345. ertson, 44 Ark. 202 ; Kramer v. Wet- * Haynes v. Small, 22 Me. 14 ; Saw- tendorff (Pa. St.), 10 A. 892 ; Hensley yer v. Curtis, 2 Ashmead^l27, When V. Rose, 76 Ala. 373. the officer returned that he had left 3 Kendall v. White, 1 Shep. 245; a copy of the attachment writ, etc., Haynes v. Small, 9 id, 14; Baker v. at the defendant's place of abode, McDuffie, 23 Wend, 289 ; Denny v. the return was held to be open to Willard, 11 Pick, 519 ; McBee v. The contradiction. Buckingham v. Os- State, 1 Meigs, 122 ; Brown v. Davis, borne, 44 Ct. 133. So, also, when he 9 N. H. 76 ; Chadbourne v. Sumner, returned that he had made the re- 16 id. 129; Sawyer v. Curtis, 2 Ash- quired certificate to the registry of 24i EETURN AFTER DIRECT ATTACHMENT. [§§ 338, 339. have leave of court to amend. He has been allowed to amend after his terra of office had expired.^ § 338. The inviolability of the return is confined to itself as an official document. The facts which it states may be con- troverted as facts stated by one of the parties but not as con- stituting the return.^ For illustration : the sheriff may report that he has attached a farm as the property of the defendant, or that the farm which he has attached is the property of the defendant. This cannot be contradicted; that is, the fact that he has so attached it cannot be. But an intervenor may in- terplead and allege that the property attached belongs to him and not to the defendant. Of course the return cannot pos- sibly preclude parties from asserting facts just the opposite of what it may have stated, yet this would not be what is meant by contradicting the return. A purchaser at a sale is not protected by the sheriff's return that the attached prop- erty belonged to the defendant, if the records show that it did not, and it therefore was not the res.^ Y. Return "Kot Found" — Order of Publication. § 339, Order. — When the sheriff makes return that the debtor to whom summons was addressed cannot be found, the court issues an order for constructive notice by publication,* deeds. Dutton v. Simmons, 65 Me. land, 51 id. 321 ; Bacon v. Leonard, 4 583. Sheriff may piove facts dehors Pick. 277; Anderson v. Scott, 2 Mo. their returns, when not inconsistent 15 ; Mason v. Anderson, 3 Mon. 294 ; therewith. Pierce v. Strickland, 2 Clay v. Neilson, 5 Randolph, 590. Story, 292; Evans v. Davis, 3 B. See Crawford v. Nolan, 72 la. 078. Mon. 344 ; Williams u Cheesebrough, Compare Charles City Plow Co. v. 4 Ct. 356 ; Denton v. Livingston, 9 Jones, 71 id. 234. Johns. 96. * The order to make publication is 1 Jeffreis v. Rudloflf, 73 la. 60. granted on the application of the Contra, Cole v. Dugger, 41 Miss. 557. plaintiff. If the original affidavit 2 Charles City, etc. Co. i\ Jones, 71 contains all that is necessary, no la. 234. * further oath is required. Bray v. 3 Merritt v. Miller, 13 Vt 416 ; Marshall, 75 Mo. 327 ; Avery v. Good. Fullam r. Stearns. 30 id. 444 ; Robert- 114 id. 290; Bm-uett v. McCluey. son u Kinkhead, 26 Wis. 560 ; Repine 92 id. 230; Miller v. Eastman, 27 V. McPhersou, 2 Kan. 340 ; Peltou r. Neb. 408. Affidavit may be made Platuer, 13 O. 209 ; Tiffany v. Glover, by an attorney. Weaver v. Roberts, 3 G. Greene, 387 ; Bannister v. Hig- 84 N. C. 493. It must show that de- ginson, 15 Me. 73 ; Lincoln v. Strick- fendant cannot be found in the state. § 3i0.] RETURN " NOT FOUND." 245 unless there has been service at his domicile on an inmate of legal qualification to receive it.^ The order, the compliance with it, and the return, must all conform to the governing statute. The publication should follow the order within rea- sonable time if no time is fixed by the court.^ Where the statute designates no form for the order, but merely prescribes that an order of publication be made, the court will fashion its own form. The substantial thing for the order to contain is that such notice be given to the defendant named in the plaintiff's petition as will inform him that the suit is pending against him, and that property of his is seized or about to be, so that he may have knowledge of it and his opportunity to defend, and have his day in court. The order is not issu- able until the time for personal service has expired.^ The order is held to be complied with if but one of two defendants jointly liable has been notified by publication.* § 340. Such order may be published as the notice, if it is full enough to convey notice, and is addressed to the defend- ant by the sheriff. The form of the notice, written out by the sheriff, must be in compliance with the judge's order and with the statute. "Where no special form of Avords is prescribed by statute, it will be sufficient if the defendant is addressed through the notice, and told of the suit pending against him, of the attachment of his property or the order for its attach- ment and of the time within which he must appear, the court, the name of the plaintiff, the demand, the grounds, etc. Non- residents maybe notified by letter addressed to them through the mail ; but they cannot be served thus.^ Faulk V. Smith, id. 501. See Coch- Brown v. Williams, 39 id. 756 ; Town rane v. Johnson, 95 Mich. 67. A re- v. Tabor, 34 id. 262 ; Withington v. turn : " unable to find the defend- Southworth, 26 id. 382. ant" has been held equal to: "cannot ^Yerkes v. McFadden (N. Y.), 36 be found," Horton v. Monroe (Mich.), N. E. 7, distinguifilnng Statts v. Bris- 59 N. W. 109 ; Hitchcock v. -Halin, 60 tow, 73 N. Y. 264. See Smith v. Mich. 459 ; Howell's Stat., § 8003. Orser, 42 id. 132. 1 Bell V. Gaylord (N. M.), 27 P. 494 ; 5 Richmond v. Brookings, 48 Fed. Spiegelberg v. Sullivan, 1 N. M. 575. 241 ; Rhode Island, etc. v. Keeney, 1 2Bacher v. Shawhan, 41 Ohio St. N. D. 411: Galpin v. Page, 18 Wall. 271; Cummings v. Tabor, 61 Wis. 350,369; Morse v. Presby, 25 N. H. 185. 302 ; McMinn v. Whelan, 27 Cal. 300 ; 3 Hubbell V. Rhinesmith, 85 Mich. Market N. Bank v. Pac. N. Bank, 89 30 ; Caton v. Rupert, 60 id. 318 ; N. Y. 397 ; Wessels v. Boettcher, 69 246 RETURN AFTER DIRECT ATTACHMENT. ' [§ 341. It cannot be laid clo\vn, as a general rule, that the notice must describe the property attached,^ as in case of proceedings against a thing, with general notice, when only the thing is impleaded, and when the notice is addressed to all persons alike; for, in attachment proceedings, which are personal in form, the notice is given to the person or persons named in the petition as the defendant, that he may make appearance and have the suit go on mainly as a personal one, and thus render particular description unnecessary. But sometimes there may be the reason for absence of description, that the notice is published when summons has failed to be served, and when nothing already may have been attached. All that the absent debtor can be told in such case is that property of his is to be attached.- When it is already attached (which is usually required before publication), its brief description in the advertisement would not only be proper but highly com- mendable, even where the statute does not require it." When the law merely requires notice of the suit to be given to the defendant, without any further statutory direction, it is still necessary that the notice should show all that is requisite to enable the defendant to know who is suing and on what demand ; to know that his projierty is attached or to be at- tached, and to know within what time he is required to make appearance. § 341. Contents. — The publication ought to be as full as the unserved writ and summons, at least; it ought to convey to the defendant as much knowledge of what is being done against him and his property as he would have if within the Hun, 306. In Wisconsin, where no- id. 313 ; Keeler v. Keeler, 24 id. 533 tification by letter beyond the ju- Weatherbee r. Weather bee, 20 id. 500 risdiction is called " personal service " Fladland v. Delaplaine, 19 id. 459 in several decisions, the courts do Pollard v. Wegener, 13 id. 569. not give it the effect of service i Core v. Oil Land Co., 40 Ohio St upon defects of proceedings, and 636. hold that the statute authorizing the -Harris r. Grodner, 42 Mo. 159; letters must be strictly construed. Grebe v. Jones, 15 Neb. 312 ; Warren Beau pre v. Brighara, 79 Wis. 436, v. Dick, 17 id. 241 ; Tufts v. Volken- 441-3; Witt V. Meyer, 69 id. 595; ing. 51 Mo. App. 7. Manning v. Head3%64 id. 630; Stuntz * Not required as to personal prop- V. Tanner, 61 id. 348; Cummings i\ ertjMn Kansas. Beckwith v. Doug- Tabor, 61 id. 185, 191 ; Pier v. Armory, las, 25 Kan. 229; Race v. Maloney, 40 id. 571 ; Likens v. McCormick, 39 31 id. 31. I §§ 342, 343.] PUBLICATION NOTICE. 247 jurisdiction and there served with the writ and summons. "Wherever, in whatever part of the world, the publication may strike his eye, he ought to be made as fully acquainted with the suit as he would be if within hearing of a proclamation calling him to court. ^ And the publication must describe the property attached when the statute expressly or impliedly requires it, as it usually does when land is attached,^ § 342. Invitation. — Summons is a command : publication notice is an invitation; summons brings the defendant under the jurisdiction of the court : publication offers him the op- portunity of voluntarily coming under it; summons is itself a writ: publication is a printed proclamation ; summons gives jurisdiction over the person and completes it over attached property: publication completes jurisdiction over the attached property but gives none over the person of the debtor, as will be shown in the chapter on jurisdiction. YI. Publication I^otice.^ § 343. Constructive service. — ISTotice by publication is not constructive service. Notwithstanding loose expressions con- cerning "service of process by publication," it is evident that no one can be served so as to render him personally amenable to the court and liable to a personal judgment by a mere in- vitation to appear, claim and defend, published in the news- papers. Constructive service — such as leaving the summons at the domicile of the defendant with an inmate of competent age to receive it — is as good in law as actual, personal serv- ice, and the summoned party can disregard it only at his peril. Such constructive service upon a witness or a juror would be 1 Gilliland v. Cullem, 6 Lea (Tenn.), sesses no power to render judgment 52L Publication is not fatally de- against him and to order the sale of fective for failing to state specifically his property to satisfy the same, un- that an order will be entered for the less publication has been made as sale of property attached. Rapp v. required by law, and the notice Kyle, 26 Kan. 89. should contain a description of the -Cackley v. Smith, 38 Kan. 450 Cohan v. Trowbridge, 6 id. 385 Westcott V. Archer, 13 Neb. 345 "When attachment is levied on the sharply and justly criticised, land of a non-resident and summons ^gg G06-614. is not made on him, the court pos- property attached." Anderson v. Co- burn, 37 Wis. 558, is approved, and Paine v. Mooreland, 15 Ohio, 435, is 248 EETUEN AFTER DIRECT ATTACHMENT. [§ 344. sufficient basis for a subsequent attachment of his body should he treat it with contumacy and contempt. Such a construc- tive service would authorize a personal judgment against a defendant who should commit default, whether any property was attached or not. No such results follow publication no- tice. No such results can follow it, though the statute should use the term "constructiv^e service," meaning merely notice by publication when effort to make any service at all, actual or constructive, has failed. To treat such notice as service is contrary to the common law.^ Those who think service may be effected by publication find difficulty when the defendant is beyond the territorial juris- diction ; but no obstacle is encountered for that reason when the publication is merel}'' to notify the owner of attached property that he may have an opportunity^ to appear volun- tarily. No rule of the common law is violated, in letter or in spirit, by such information given to one the be3^ond the terri- torial jurisdiction or secreted within it so as not to be person- ally found and served, or without domicile within it so as to be constructively served with summons.- § 344. JDay in court. — In the prevalent system of attach- ment now practiced in this country, the suit is not against any person when no person is served or is in court without service ; it is in rem, and opportunity must be given to him whose interest is sought to be divested by the judgment, or the whole proceeding is a nullity. Cases seemingly to the con- trary will be found — those in which attachment was to com- pel appearance by distraint — not a suit to create a lien and mature it by judgment final and retroactive; or they will be found grounded in error superinduced by the common failure to distinguish between the two widel}'" different theories of attachment.' 1 Boyland v. Boyland, 18 111. 552 ; gel v. Loomis (Neb.), 50 N. W. 44. Hallett V. Righters, 13 How. Pr. 43 ; And one holding that a debtor merely Brownfield v. Dyer, 7 Bush, 505. See notified by publication is in court case recognizing " personal service " for all purposes of litigating the without the state:" United Verde causes of action contained in the Copper Co. v. Tritle, 20 Abb. New petition :" Bodwellu.Heaton, 40 Kan. Cases, 57. And one treating of " con- 36. structive service based on the attach- - Hahu v. Kelly, 24 Cal. 417. ment of defendant's propertj^ : " Na- ^ Formerly this difference was not §§ 345, 346.] PUBLICATION NOTICE. 249 § 345. "When the attachment suit, though no.:ninally in per- ■• Barker v. Osborne, 71 Me. 69 ; Ab- ney, 394. ' bott v. Stinchfield, id. 213 ; Giles v. 3 Massachusetts National Bauk v. Ash, 123 Mass. 353 ; Everett v. Wol- Bullock, 120 Mass, 86; Mansfield v. cott, 15 Pick. 97; First N. Bank v. Rutland Manuf. Co.. 52 Vt. 444. In Portland, etc. R Co., 2 Fed. 831 ; this case the trust required that the Schoolher v. Hutchins, 66 Tex, 324; creditors be paid pi'o rata, but the Huffman v. Templeton (Tex.), 14 S, trustees seem to have made some W, 1015, preferences among the creditors. s Fogler v. Marston, 83 Me. 396 : Yet, in the attachment suit, it was Holt v. Libbey, 80 icL 329 ; Sawyer doubtless correctly decided that they v. Sawyer, 74 id. 580 ; Ladd v. Ja- could not be made garnishees. Schlae- cobs, 64 id. 347; Webster v. Adams, ter V. Raymond, 7 Neb. 281. 58 id. 317 ; Denuison v. Benner, 36 id. * Dehner v. Helmbacher Forge, etc, 227, Mills, 7 III. App. 47; Avery v. Lack- 300 LEGAL CUSTODY KELATIVE TO GARNISHMENT. [§ 416. ment in the assignee's hands if the terras were that, after sat- isfying his own claim, the balance should be paid to another creditor.^ A debtor deposited his insurance policy with a creditor to secure him ; then assigned the excess to another creditor to satisfy him: a third creditor could not attach the policy in the hands of the first, whose lien must first be satisfied, and the assignee must be paid next.^ § 416. AcGci)tance % assignee. — Acceptance by the assignee is necessary to complete the assignment.^ If he has accepted and notified the assignor's debtors before their summons as garnishees, or before their disclosure; or if the assignor, after such acceptance, has given them an order to pay to the as-- sio^nee, thev cannot be charged in a suit against the assignor.'* Acceptance by the assignee being essential, a mere direction by the defendant to his debtors to pay to him without his knowledge or assent would not prevent their successful garnishment.^ If the garnishee sets up a valid assignment, duly accepted, and his receipt of an order (from the defendant to pay to the assignee) before his summons, he must be discharged.^ 1 Hughes V. Sprague, 4 111. App. 301, man v. Haynes, 20 Pick. 132 ; Wood- 2 Hendeisou v. Alabama Gold Ins. bridge v. Perkins, 3 Day, 364 ; Baker Co., 72 Ala. 32. v. Moody, 1 Ala. 315 ; Myatt v. Lock- 3 Keithley v. Pitman, 40 Mo. App, hart, 9 id. 91 ; Clark v. Cilley, 36 596 ; Burger v. Burger, 135 Pa. St. id. 652 ; Hearn v. Foster, 21 Tex. 401 ; 499. Massachusetts Nat. Bank v. Bullock, 4 Dobbins v. Hyde, 37 Mo. 114; 120 Mass. 86; Kelly v. Eoberts, 40 Botsford V. Simmons, 32 Mich. 352; N. Y. 432; McCoid v. Beatty, 12 la. Legro V. Staples, 16 Me. 252; Colt n 299; Mayer i'. Chattahoochie Na- Ives, 31 Conn. 25 ; Adams v. Eobin- tional Bank, 51 Ga. 325 ; Redd v. son, 1 Pick. 461 ; Mansard v. Daley, Burns, 58 id. 574 ; Briggs v. Block, 18 114 Mass. 408; Newell v. Blair, 7 Mo. 281; Sproule v. McNulty, 7 id. Mich. 103; Dwight u. Bank of Mich- 62: Botsford v. Simmons, 32, Mich, igan, 10 Met. (Mass.) 58 ; Bourne v. 352 ; Brown v. Foster, 4 Cush. 214 ; Cabot, 3 id. 305; Ward v. Lewis, 4 Mansard v. Daley, 114 Mass. 408; Pick. 518; Cuttsn Perkins, 12 Mass. State v. Brownlee, 2 Speers, 519; 206 ; Botsford v. Simmons, 32 Mich. Dolsen v. Brown, 13 La. Ann. 551 ; 352 ; Van Staphorst v. Pierce, 4 Mass. Connelly v. Harrison, 16 id. 41 ; Mc- 258 ; Colman v. Scott, 27 Neb. 77 ; Guire v. Pitts, 42 la. 535. Lewis V. Board of Com'rs, 14 Colo. ^ Nesmith v. Drum, 8 Watts & S. 9 ; 371. Lampkin v. Phillips, 9 Porter, 98; 5 Center v. McQuesten, 18 Kan. 476 ; Brazier v. Chappell, 2 Brevard, 107. People V. Johnson, 14 111. 342 ; Cush- § 417.] . ASSIGNMENT, RELATIVE TO GAKNISHMENT. 301 An order from a client to bis attorne}', in a pending case, to pay over whatever may be recovered to some named third person, is not an assignment of the client's interest so as to defeat the garnishment of the credit in a suit against him, even though the attorney should consent to comply with the request.^ An assignment for the benefit of creditors, accepted by the assignee but not by all the creditors, will not preclude the garnishment of a debt due the assignor by a creditor who did not accept the assignment, unless it is proved that the sum held by the garnishee is necessary to pay the creditors who have elected to come in under the assignment or trust deed.^ Garnishment cannot affect a valid contract already made, by which the obligation of a debtor or holder of property to the creditor or owner is transferred to another person.^ §417. Notice to assignor's debtors. — ISTotice of assignment should be given to the assignor's debtors so that they may disclose the fact when garnished.* If notified they cannot withhold their knowledge, when interrogated, without liabil- ity to the assignee, though they pay into court under order ;^ but if not notified, an acknowledgment of indebtedness to the defendant assignor, made in ignorance of the assignment, and pajanent into court pursuant thereto, under order, will oper- ate as a full acquittance from the assignee.^ There is an exception to the general rule. Negotiable paper may be assigned, without notice to the maker, so as to hold against garnishment of the maker. The assignee of a chose in action of this character ranks above a subsequently attach- ing creditor of the assignor whose o^arnishment of the assifjn- 1 White V. Coleman, 130 Mass. 316. » Colman v. Scott, 27 Neb. 77 ; Good- 2Douglas V. Simpson, 121 Mass. 281. man v. Henley, 80 Tex. 499. sVincentr. Watson, 18 Pa. St. ii6; 6 Nichols v. Hooper, 61 Vt. 295; Watkins v. Pope, 38 Ga. 514 ; Bray v. Covert v. Nelson, 8 111. App. 265 ; Pen- Wheeler, 29 Vt. 514 ; Eussell v. Con- niman v. Smith, 5 Lea, 130 ; Clod- vers, 7 N. H. 343 ; White v. Richard- felter v. Cox, 1 Sueed, 330 ; Dodd son, 12 id. 93 ; Godfrey v. McComber, v. Brott, 1 Minn. 270 ; Robinson u 128 Mass. 188 ; Manchester v. Smith, Mitchell, 1 Harr. 365 ; Elston v. Gillis, 13 Pick. 113; Whiting v. Earle, 3 id. 69 Ind. 128; Junction R. Co. v. Cle- 201; Balliet v. Scott, 32 Wis. 174; neay, 13 id. 161; Clark v. King, 3 Swisher v. Fitch, 1 S. & M. 541; Mass. 524; Dore v. Dawson, 6 Ala. Nines v. Pyle, 4 Houston, 646. 712. 4 Golson V. Powell, 32 La. Ann. 521. 302 LEGAL CUSTODY RELATIVE TO GARNISHMENT. [§ 418. or's debtor was served before any notice of the assignment had been given. ^ Any method of notice that will convey the necessary knowl- edge will suffice, where no particular form is prescribed. The service of a copy of the assignment is sufficient.^ If the as- sio-nee notifies the defendant's debtor before the making of the disclosure in the garnishment proceedings he will be in time ; and it has been held that he will be in time if he gives notice before judgment charging the garnishee.^ But it has been held that a creditor who garnishes a bank to subject a note therein deposited has a right preferable to that of an as- signee without possession, when the bank has had no notice of the assignment.^ § 418. Debt )iot due. — A debtor cannot assign money not earned but to become due under an appointment promised but not obtained, so as to protect it from garnishment when it shall become due.^ But when a boarding-house keeper as- signed board bills, coming due, to a bank, with the assent of a railroad company wdiich agreed to pay dues of its employees to him for their board, and his creditors sued him and garnished the company, the transfer was sustained as an equitable assignment." An existing debt may be assigned before it is due, so as to prevent its subjection to garnishment when it becomes due, in a suit against the assignor.'' Yet, in several states, it could be reached in a suit against the assignee who ' Meier v. Hess, 23 Oreg. 509 (in 217 ; Gates v. Kerby, 13 id. 157 ; War- which Hill's Ann. L., § 150, is con- ren v. Copelin, 4 Met. 594 strued); Thayer u. Daniels, 113 Mass. 2 Manning v. Mathews, 70 la. 303. 129; Wood w. Partridge, 11 id. 448; 3 Williams r. Pomeroy, 27 Minn. 85; Dix u. Cobb. 4 id. 507; Fairbanks v. Stevens v. Stevens, 1 Ashm. 190; Sai'geant, 104 N. Y. 108 ; Beckwith v. Muir v. Schenck, 3 Hill, 228 ; Pell- Bank, 9 id. 211; Muir v. Schenck, 3 man v. Hart, 1 Pa. St. 263; Smith v. Hill (N. Y.), 228 ; Bholen v. Cleve- Sterritt, 24 Mo. 260. But see Ward v. land, 5 Mason, 174 ; Holt v. Babcock, Morrison, 25 Vt. 593 ; Barney v. Doug- 63 Vt. 634. See Spain v. Hamilton's lass, 19 id. 98; Case v. Haughtoo, 16 Adm'r, 1 Wall. 624 ; Campbell V. Day, id. 594; Bishop r. Holcomb, 10 Ct. 16 Vt. 558 ; Van Buskirk v. Insurance 444 ; Judah v. Judd, 5 Day, 534. Co., 14 Ct. 141 ; Hobson v. Stevenson, ^ pirgt N. Bank v. Van Brockliu, 76 I Tenn. Ch. 203; Clodfelter v. Cox, 1 la. 761. Sneed, 329; Garrett v. Jaffray, 10 ^Eagan v. Luby, 133 Mass. 543. Bush, 413; Murdoch v. Finney, 21 ^Y^e Fuller v, O'Prien, 121 id. 422. Mo. 139. Compare Funkhouser v. •> Chamberlin v. Gilman, 10 Colo. 94. Howe, 24 Mo. 44 ; Dickey v. Fox, id. 7 Eagan V. Luby, 133 Mass. 543 ; §§ 419, 420.] ASSIGNMENT, RELATIVE TO GARNISHMENT. 303 claims to own, though the garnishee could not be made to pay into court before maturity.^ § 419. Duty to disclose. — A garnished debtor of the defend- ant, who knows of the valid assignment of the debt yet fails to disclose it and answers so as to be charged, is not relieved from a subsequent claim of the assignee.^ An assignee for the benefit of creditors may be compelled to disclose by a court other than that where his inventory and bond are filed.* § 420. Assignee as a iHirtij. — An assignee intervening must prove what is due to him.* He may prove his agreement with the garnishee touching property put by him in the gar- nishee's hands for sale, when the proceeds of the sale are the matter in question.^ If he claims money in the garnishee's hands, when the assignment was only as security for unliqui- dated indebtedness which the assignor might incur, there should be judgment for the inter venor to satisfy his claim, and judgment for the plaintiff as to the rest of the money." The assignee may have his interventional claim tried after the garnishee has paid into court.'' It has- been held that if the garnishee admits his indebtedness to the defendant and does not disclose notice to himself of an assignment, the assignee cannot intervene to have his claim decided.^ "When the as- Hubert v. Bronson, 125 id. 475 ; Wal- Nugent v. Opdyke, 9 Rob. (La.) 453 ; lace V. Haywood, etc. Co., 16 Gray, Bank of St. Mary v. Morton, 12 id. 209; Lannan v. Sraith, 7 id. 150; 409. Hartley v. Tepley, 2 id. 565 ; Taylor 3 Kohn v. Ryan, 31 Fed. 636, anno- V. Lynch, 5 id. 49 ; Emery v. Law- tated; Fleicher v. Greenwald, 20 Fed. rence, 8 Cush. 151. 547 ; Van Patten v. Burr, 52 la. 518 ; 1 Nickolls V. Scofield. 2 R. I. 123 ; Adler v. Ecker, 1 McCrary, 256 ; Clapp V. Hancock, 1 Allen, 394 ; Ful- 2 Fed. 126 ; Shelby v. Bacon, 10 weiler v. Hughes, 17 Pa, St. 440; How. 56. See Jatfray v. McGehee, Dunegan v. Byers, 17 Ark. 492 ; Cot- 107 U, S. 367. trell V. Varnum, 5 Ala. 229. ■» Poole v. Carhart, 71 la. 37. He - Johnson v. Dexter, 38 Mich. 695 ; may claim the whole or a part of the Tabor v. Van Vranken, 39 id. 793; fund as assignee. Home n Stevens, Large v. Sloore, 17 la. 258 ; Walters 79 Me. 262. V. Insurance Co., 1 id. 404; Crozier SRjpiey v. Ayer, 119 111. 341. V. Shants, 43 Vt. 478 ; Page v. Thomp- 6 Whalen v. McMahon (Colo.), 26 P. son, 43 N. H. 373; Cross v. Halde- 583. man, 15 Ark. 200 ; Pitts r. Mower, 18 ^ Gates v. Trusten, 89 Mo. 13. ]Me. 361; Stubblefield v. Hagerty, 1 sporter v. West, 64 Miss. 548. See Ala. 38; Colvin v. Rich. 3 Port. 175; Baker's Estate, 17 Phila. 510. Wicks V. Branch Bank, 12 Ala. 594; 3l)i LEGAL CUSTODY KELATIVE TO GARNISHMENT. [§§ 420, 421. signee is not a party, the garnishee cannot conclude him or deprive hiin of any right by disclosing untruly that he is in- debted to the defendant, the assignor. And, if the plaintiff has failed to appear in ancillary garnishment proceedings, and has been defaulted,^ the garnishee cannot waive the de- fault and voluntarily submit to judgment, to the injury of the assignee.^ § 420. The garnishment proceeding, when suspended by statutory provision that the rights of assignor and assignee may be adjusted in a suit between them, will be determined by such suit where the garnishee has previously disclosed that the debt he acknowledged has been assigned.^ The plaintiff may disprove the garnishee's claim to own the property he holds, and may show that it belongs to the defendant.* And the garnishee may, as a matter of course, defend his right when endangered, and may secure his discharge by showing good faith on his part, though the defendant may have de- signed to cover his property rather than alienate it.^ § 421. Ladies of assk/nee. — After judgment against gar- nishees, a creditor of the principal defendant petitioned to set it aside on the ground that the latter had assigned to him be- fore the garnishment, and the garnishees had been notified of the assignment. Though the petitioner averred that he had no notice by the garnishees of the proceedings against them, he was deemed guilty of laches by taking no steps till eight months after he had become cognizant of the facts : so his prayer was refused,^ Ordinary diligence and clear right must be shown when such a judgment is sought to be set aside after 1 Wilcox V. Clement, 4 Denio, 162 ; s Clark v. Few, 63 Ala. 243 ; Born McCarty v. McPherson, 11 Johns, u. Staaden, 24 111.320; Fisk u. Wes- 406 ; Shufelt i'. Cramer, 20 id. 309 ; ton, 5 Me. 410. Barber v. Parker, 11 Wend. 52 ; Brady ■» Covvies ii Coe, 21 Ct. 230 ; Knight V. Tabor, 29 Mich. 199; Redman v. v. Gorham, 4 Me. 492; Hooper v. White, 25 id. 526 ; Stadler v. Moors, Hills, 9 Pick. 435. 9 id. 264. 5 Hutchins v. Sprague, 4 N. H. 469 ; 2 Dobbins v. Hyde, 37 Mo. 114; Ripley v. Severance, 6 Pick. 474; Dickey v. Fox, 24 id. 217 ; Fimkhou- Thomas v. Goodwin, 13 Mass. 140. ser V. How, 24 id. 49 ; Gates v. Kerby, ^ Lawrence Bank v. Iron Co., 77 13 id. 157; Andrews v. Herring, 5 Md. 331; Post u Bowen, 35 id. 233. Mass. 213; Johnson v. Dexter, 38 Mich. 695. §§ 422, 420,] ILLEGAL AND FRAUDULENT ASSIGNMENT. 305 the term in which it was rendered.^ It cannot be attacked in the appellate court when no exception was taken in tlie court beh)w.- It is held that the assignment of a fund does not necessarily require that the holder of the fund should know of the assignment to make it valid against his subsequent gar- nishment.^ It is necessary, however, that the garnishee have notice of the assignment in time to disclose it in his answer,* so that the assignee may be made a party.'* § 422. Insolvent jpartncrsMi) property. — It is held that in- solvent partnership property must be in custodia legis before a creditor's lien can attach to it. It must have been brought into court by the bankruptcy of the firm, by assignment or by some other mode of creating a trust." It is said in the first case just cited: "Creditors have no lien except through the partners , and w^hen the assets have been disposed of by the consent of the partners, the equity of the individual partners has been extinguished and no lien remains to the creditors."'' lY, Illegal and Fraudulent Assignment. § 423. The holder of funds or property illegally assigned may be garnished in a suit against the assignor.^ If the question of legality turns upon the consideration, the plaint- iff upon a comparatively slight showing may throw the bur- den of proof upon the garnishee who is himself the assignee.^ If the assignment is void the assignee in possession may be 1 Taylor r. Sindall, 34 Md. 38 ; Dor- 119; Fitzpatrick y. Flannegan, 106 sey V. Kyle, 30 id. 512 ; Kemp v. Cook, id. 648. 18 id. 130. ^ Sickman v. Abernathy, supra, 2Parksu Adams, 113 N. C. 473. citing Hoxie v. Carr, 1 Sum. 173 sScheuler v. Simmons, 3 Tex. Civ. Allen v. Center Valley Co., 21 Ct. 130 App. 672. McDonald v. Beach, 2 Blatchf. 55 * Abbott V. Davidson (R. I.), 25 A. Kistner v. Sindlinger, 33 Ind. 114 839 ; Lee v. Robinson, 15 R. I. 369 Tiernay v. McGarity, 14 id. 231 Tracy v. McGarty, 12 id. 108, 169 Harris v. Peabody, 73 Me. 262 ; Glenn V. Gill, 2 Md. 1 ; Locke v. Lewis, 124 Mass. 1. Northam V. Cartright, 10 id, 19, 21. SRisser v. Rathburn, 71 la. 113; 5 Levy r. Miller, 38 Minn. .526 ; Jor- Mansard v. Dailey, 114 Mass. 408; dan V. Harmon, 73 Me. 259. Gutterson v. Morse, 58 N. H. 529. 6 Sickman v. Abernathy, 14 Colo. sMaherr. Brown, 2 La. 492; Gid- 179 ; Case v. Beauregard, 99 U. S. dings v. Coleman, 12 N. H, 153. See Hecht V. Green, 61 Cal. 269. 20 306 LEGAL CUSTODl* RELATIVE TO GAR^fISHMENT. [§§ 424, 425. garnished.^ If the assignor can take it back his creditor "an reach it. So long as money or property in another's hands is subject to the debtor's order it may be reached by garnish- ment.^ If an assignment is wanting in essentials; if, for instance, the bond has not been approved by the court commissioner and duly indorsed by him (where that is required) ; if the as- signment, for this or any other reason, is void, the assignee in possession may be garnished in a suit against the assignor.'' § 424. An assignment for the purpose of defrauding cred- itors, selling property and taking notes in the name of a third person, and the like, will not prevent garnishment from prov- ing effectual when the disclosure or evidence reveals the real state of things and shows that the garnishee really owns or holds property for the attachment defendant.* A purchaser who fraudulently has bought property may be garnished by the judgment creditor of the vendor, notwith-. standing the pendenc}'" of his execution against the same prop- erty as that of the judgment defendant, according to the Ke vised Statutes of Wisconsin, section 2753.^ The proceeds of property fraudulently conveyed may be reached by garnishing the recipient in a suit against the debtor who has thus conveyed to him.^ § 425. " Where the fraudulent intent on the grantor's part is shown, and the circumstances are suspicious, the purchaser must show that he has paid value, and upon the establishment of that fact the attaching creditor must then make it appear that the purchase was made in bad faith or with notice of fraud." ' The rule as to fraudulent transfers is that what is trans- 1 Kimball v. Evans, 58 Vt. 655. Kesler u St John, 22 la. 565 ; Wood See Merchants' Bank v. CoLnnan, 81 v. Bodwell, 12 Pick. 268. Ala. 170. '" Sutton v. Hasey, 58 Wis. 556. -'Field n Haines, 28 Fed. 919. ^Bresnahan v. Nugent, 92 Mich. 3 Baunibach v. Singer, 86 Wis. 329 ; 76, limiting Feary v. Cummings, 41 Shakman v. Schleuter, 77 id. 402. id. 376. 4 Price V. Bradford, 4 La. 35 ; Camp "' Treusch v. Ottenburg, 54 Fed. V. Clark, 14 Vt. 387; Langley v. 878; Callan v. Statham, 23 How. Barry, 14 N. H. 82 ; Green v. Doughty, 477-480 ; Jones v. Simpson, 116 U. S. 6 id. 572; Bibb v. Smith, 1 Dana, 614; Crawford v. Neal, 144 id, 595; 580; Patton v. Gates, 67 111. 164; Klein u. Hofflieimer, 132 id. 375-9. Diefendorf v. Oliver, 8 Kan. 305; §§ 42(5, 427.] ILLEGAL AND FRAUDULENT ASSIGNMENT. 307 ferred in fraud of creditors may be reached by garnishment, even though the owner may be estopped from reclaiming it.^ But after the direct attachment of goods fraudulently sold the vendee cannot be garnished in a suit against the vendor.- § 42G. Fraud estops the garnishee from successfully claim- ing. If he has wrongfully obtained possession of the defend- ant's property under a chattel mortgage, and has withheld the mortgage from record in fraud of defendant's creditors, he cannot be heard to set up his mortgage lien to defeat the garnishment.^ TThen a stranger to proceedings by attach- ment is about to be wronged by reason of a previous fraudu- lent action of the defendant, he may be allowed to intervene and show that what the garnishee holds as the money of the defendant really belongs to himself, though the defendant would be estopped from setting up his own wrong-doing.^ As a general rule, however, the attaching creditor can only reach, in the hands of the garnishee, what the defendant might have recovered had there been no garnishment.'^ § 427. Assif/nces commissions. — If an assignee has been removed for not giving bond, or like reason, his successor may be garnished in a suit for compensation due for services before removal.^ 1 Van Ness v. McLeod, 2 Idabo, the facts and defeat the garnish- 1147. ment. - Claflin V. Landecker, 17 Mo. App. ^ United States r. Robertson, 5 Pet. 615; Goddard v. Hapgood, 25 Vt. 641; Wilcox v. Mills, 4 Mass. 218 361 ; State v. Johnson, 33 N. H. 363 ; Harris r. Phoenix Ins. Co., 35 Ct. 310 Olapp V. Rogers, 38 id. 435. Brown v. Silsby, 10 N. H. 521 ; St. 3 Cummings V. Fearey, 44 Mich. 39, Louis v. Regenfuss, 28 Wis. 144; upon a statute requiring that chat- Myer v. Liverpool, etc. Ins. Co., 40 tel mortgages be recorded ; United Md. 595 ; Burton ■?'. District Town- States V. Vaughan, 3 Binney, 394; ship, 11 la. 166; Tnpper r. Cassell, 45 Lambr. Stone, 11 Pick. 527. Miss. 352; Peet v. Whitmore, 16 La. ^Turner f. Burnell, 48 Wis. 221. in Ann. 48: Coble r. Nonemaker, 78 which the defendant, an agent of the Pa. St. 501 ; Woodhouse v. Coiumon- intervenor, had caused liiniself to be wealth Ins. Co., 54 id. 307. credited in an estate account instead •> Stuckey t\ McKibbon, 92 Ala. of his principal. When the adniinis- 622 ; New York Ins. Co. v. Roulet, 24 trators of the estate were garnished Wend. 505 ; McCrea i\ Purmont, 16 as the debtors of the agent, the prin- id. 460; Fitch v. Workman, 9 Met cipal was allowed to intervene, prove 517. CHAPTER XII. CORPORATIONS AS GARNISHEES. L States §§ 428-433 IL Counties, etc 433-438 III. Cities 439-443 IV. Private Corporations in General 444 V. Banks 445-446 VI. Insurance Companies 447-448 VIL Common Carriers 449-454 VIII. Corporation Servants . . . . ' , 455-456 IX. Corporation Stock , 457-458 X Corporation in Foreign State 459-463 XI. Situs of Shares 464-468 I. States. §428. TJie rule. — A state cannot be sued by process of garnishment without its own consent, for the same reason that it cannot be sued by ordinary process ; nor can it be in- directly garnished by making one of its officers the nominal garnishee. Funds in the hands of a state treasurer, auditor, comptroller, agent or disbursing officer, belonging to the state, cannot be reached by this process directed against any such officer. And the rule embraces the United States and the District of Columbia, and their officers and agents.^ 1 Dewey v. Garvey, 180 Mass. 86 Rodman v. Musselman, 12 Bush, 354 Buchauan v. Alexander, 4 How. 20 Derr v. Lubey, 1 MacArthur, 187 Pettier & Stynius Manufac. Co. v. Taylor, 3 id. 4 ; Brown v. Finley, id 77 ; Averill v. Tucker, 2 Ci-. C. C. 514 O'Neill V. Sewell, 85 Ga. 481 (trustees of state asylum garnishees); Mc- Meekin v. State, 9 Ark. 553 ; Dobbins V. Railroad, 37 Ga. 240 ; Bank of Ten- nessee V. Dibrell (State ComiJtroller, Garnishee), 3 Sneed, 379 ; Pennebaker V. Tomlmson (State Comptroller, Gar- nishee), 1 Tenn. Ch. Ill ; Rollou. An- des Ins. Co. (State Treasurer, Garni- shee), 23 Gratt. 509 ; Divine v. Harvie, 7 Mon. 439 ; Wild v. Ferguson, 23 La. Ann. 752 (the garnishees in the lat- ter two cases being state officers); Wilson u Bank of La., 55 Ga. 98. In the case of Buchauan v. Alexander, boarding-house keepers had sued seamen-and garnished the purser of the frigate Constitution, upon which the sailors had a lien for wages ; but the United States supreme court held that the funds in the hands of §§ 429, 430.] STATES. 309 § 420. Though public funds may have been appropriated and placed in the hands of an officer to be paid to those who are creditors of the government, they belong to the govern- ment and not to the creditors up to the moment when the officer pays them over to the latter; and therefore they can- not be attached in the hands of the officer as the mone}^ of the creditors in his possession. Even if states or the federal government were liable to be garnished for what property they hold belonging to an attachment defendant, it would not follow that their own money, though placed in the hands of an officer for payment, could be subjected to garnishment as tlie money of the defendant to whom such funds are to be paid. However, were such governments garnishablC; debts due a defendant might be reached by the process; for, in such case, it is not essential that the money necessary to pay debt should already belong to the defendant. § 430. The reason. — The reason why they cannot be gar- nished for debt is the broad one that a state cannot be sued ; and that reason is based upon public policy, whether the policy be intrinsically wise or unwise. And the reason extends to the garnishment of officers. The reason has been extended in the majority of the states to public corporations of a subordinate character: such as counties, townships, city corporations and school districts. However, where the opposite theory prevails, and also where the question is an open one, as in new states when counties, cities, school districts, etc., are first formed, there may be strong argument drawn from policy in favor of the garnish- ment of such corporations. The acknowledged duty of every debtor to pay his debts; the obligation upon government that officer could not be thus reached, officer, it is as much the money of though he had admitted tliat the the United States as if it liad not wages were due. "The funds'of the been drawn from the treasury. . . . government," said the court, " are We think the question in this case is specifically appropriated to certain clear of doubt, and requires no fur- uational objects, and if such appro- ther illustration." Train v. Herrick, piiations may be diverted and de- 4 Gray, 534 ; Smith v. State, etc., 13 feated by state process or otherwise, S. & M. 140 ; Sampson v. Bryce, 5 the functions of the government may Munf. 175 ; Randolph v. Randolph, be suspended. So long as money re- G Rand. 194. mains in the hands of a disbursing 310 CORPORATIONS AS garnishp;es. [§ 4:31» to facilitate the performance of such clut}'; the injustice of allowing a debtor to defeat a creditor b}^ putting funds or property into the hands of a pubhc corporation to keep them out of the reach of the courts; the almost equal injustice of permitting such corporation to hold a debtor's money or property from the operation of a court's writ, though not put designedly in such position to defeat the creditor, ought ta have weight in considering the question of policy. § 431. The arguments generally employed, that such corpo- rations and their officers might be hindered in the discharge of their public duties if liable to be called into the quarrels of litigants to answer what property or funds they hold belong- ing to an attachment defendant, and that they cannot always know what is due such defendant until accounts have been adjusted, may be met by the answer that when it is apparent that a stated sum is due him, or that a distinct article of property belongs to him, it is very easy for a public corpora- tion, or its proper officer, to say so — as easy as it is for a priv^ate corporation, or its proper officer, to say so under sim- ilar circumstances — (not only eas}^, but a duty when the law requires it, and therefore no hindrance of official dut}'); and, in answer to the other objection — that they cannot always, know what is due the defendant till his accounts have been settled — it seems sufficient to say that a response to an in- terrogatory to that effect would work the discharge of the garnishee. The rule is that an answer by a private person that his accounts with the defendant are unliquidated, and that he does not know whether he is indebted or not, would result in his discharge unless refuted under traverse. If it be said that public corporations and their disbursing officers ought not to be subjected to the litigation consequent upon a traverse of their answers, the ready reply is that the argu- ment favors statutory exemption from traverse rather than from garnishment. There are good reasons for a provision prohibiting further procedure against a public corporation^ cited as garnishee in an attachment suit, after such an answer as above suggested; for, if every creditor should have it in his power to derange the ordinary official routine of business by making accounting officers liquidate accounts out of due time, much confusion and public injury might result. AVith §1 432, 433.] COUNTIES, etc. 311 such a provision, almost every objection to the garnishment of subordinate pubhc corporations would be swept away. The public interests would be subserved by the extension of the creditor's means of collecting his just dues and the cause of justice would be promoted. § 432. "Where subordinate public corporations may sue and be sued in direct actions, the argument drawn from inviolabil- ity of the state does not appl}'- to them ; and, considering gar- nishment as a suit, they ought not to be exempt from it on this ground. Besides, state inviolability is not so indisputably commendable that it should be extended to minor ors^aniza- tions which perform some of the functions of government. The United States government suffers itself to be sued upon contracts express or implied in the court of claims. If all governments would allow the courts to settle claims preferred against them, is it likely that less justice would be done than now, when such judicial functions are confined to executive officers who act and think through their clerks? II. Counties, etc. § 433. Not generally Uahle. — Under the policy followed by most of the states, neither counties nor their officers are chargeable by garnishment upon general principles; they may be rendered amenable by statute but are not other- wise liable. If the county officer could be cited into court to answer as to what public funds he holds in a suit between private litigants, he might be hindered in the settlement of his accounts with the county to the injury of the public inter- ests. For this reason, as well as for one founded upon a statute, it was held that a county treasurer was not charge- able as garnishee or trustee, though he had answered to an interrogatory that he had in his official capacity a stated sum of money due to the defendant for services as a juror which he was legally obliged to pay to the defendant.^ A county officer's authority and duty are governed by law, and he can- not be made to divero^e from his rio'htful official course of action by court orders at the instigation of litigants in the 1 Chealy v. Brewer (Seaver, Trustee), 7 Mass. 259 ; Williams v. Boardman, 9 Allen, 570. 312 CORPORATIONS AS GARNISHEES. [§§ 434, 435. absence of statutoiy authorization, and to the detriment of the public welfare, any more than a state officer could thus be turned from the line of his public duty.^ §434. Illustration. — A county is deemed a municipal cor- poration and its officers held exempt from garnishment on account of public property or money in their hands. Even if the county were garnishable, it is held that the process would not reach an undelivered county order in favor of the debtor, while yet in the hands of the county clerk; and that the de- livery of the order to the sheriff, upon service of the process upon the clerk, does not bind the county or subject it to the garnishment.^ The clerk, being the agent of the board of su- pervisors, holding for it, has no custody independent of the board; and the garnishment is virtually against the county, which, as a municipal corporation, cannot be thus reached.^ A county cannot be directly sued,* as a general rule; but when it may be sued, and judgment obtained against it, its debtor may be garnished in execution.^ § 435. When licible. — A county corporation is liable to have the usual legal remedies applied to it, if the law imposes upon it such duties and grants such privileges as require such rem- 1 Ward V. County of Hartford, 12 terer v. Bowe, 84 Ga. 769. Compare. Ct. 404 ; Bray v. Wallingford, 20 id. Waterbury v. Board of Comm'rs, 10 416; McDougal v. Hennepin Co., 4 Mont. 515. Minn. 184 ; Bulkley v. Eckert, 3 Pa. - Merrill v. Campbell (County St. 368 ; Boone Co. v. Keck, 31 Ark. Clerk), 49 Wis. 535. County clerk not 387 ; Webb v. McCauley, 4 Bush, 8 ; garnishable for redemption money Ross V. Clarke, 1 Dall. 354 ; Spalding after tax sales : Smith v. Finlen, 23 V. Imlay, 1 Root, 551 ; Stanton v. 111. App. 156 ; Lightner v. Steinagel, Holmes, 4 Day, 87, 96; Benton u 33 111.510. Dutcher, 3 id. 346 ; Winchell v. Allen, ^ Id. ; Burnham v. Fond du Lac, 15 1 Ct. 385; Stillman v. Isham, 11 id. Wis. 193: Buffham v. Racine, 26 id. 124 ; Wallace v. Lawyer, 54 Ind. 501 ; 449 ; Hill v. La Crosse & Mil. R. R. Merwin v. Chicago, 45 111. 133 ; City Co., 14 id. 291. of Chicago v. Hastings, 25 id. 395 ; * Sheldon v. Litchfield County, 1 Fast V. Wolf, 38 111. App. 27 ; Com- Root, 158 ; Lyon v. Fairfield County, missioners v. Bond, 3 Colo. 411; 2 id. 30 ; Staphouse u Coimty of New Sauer v. Nevadaville, 14 id. 54; State Haven, 1 id. 126; Hawley v. County V. Eberly, 12 Neb. 616; Riggin v. of Litchfield, id. 155 ; Russell r. Men Hilliard, 56 Ark. 476; Dounelson v. of Devon, 3 Term Rep. 667. Colerain, 4 Met. 430 ; City of New ^ George v. Ralls Co., 3 McCrary C. Orleans v. Finnerty, 27 La. Ann. 681 ; C. 181. Lewis V. Dubose, 29 Ala. 219; Dot- §§ 43 G, 437.] COUNTIES, etc. 313 edies on the part of others in the enforcement of their rights. It is a proper inference that a statute confers such remedies when it provides that such a corporation may sue and be sued, though none of the conservative writs or any particular form of remedy may be expressed.^ A county is usually more analogous to the state government than to public bodies cre- ated by statute for designated purposes. A statute authoriz- ing a county to make an appearance when sued was construed not to imply that the county might be sued.^ §436. Debt iijwn contract. — It would seem that when a public corporation makes a contract it ought to be liable to suit or garnishment precisely as a natural person. In Massa- chusetts a county may be garnished for a sum due by con- tract. Although a juror's fees cannot be attached in the hands of the county by such process in that state,^ the su- preme court say that, in cases of contract, " there has never been a doubt that cities and towns are liable to be summoned as trustees; and we find nothing in the statutes upon this subject that places counties upon a different footing in this respect from cities and towns." * § 437. Toivnshqys. — What has been said about the non-lia- bility of a county and its officers is almost as broadly appli- cable to a township.^ Where the rule of non-liability prevails, whether by statute or by settled practice based upon tlie principles above mentioned with respect to counties, and ap- plicable alike to cities, it is not confined to such cases as would embarrass officers in the discharge of their duty, but is ex- tended to all cases. The question, when such garnishment is attempted, is not whether the process interferes with the po- litical, civil or corporate duties of the officer, but whether the statute, or the policy of the law, allows the garnishment of ' Ward V. County of Hartford, 12 distinction may be extended to Ct. 404, 407 ; McLoud r. Selby, 10 Chealy v. Brewer, 7 Mass. 259. id. 390 ; Tilden r. Metcalf, 2 Day, 209. 5jenks r. Osceola Township. 4.j - Ward V. County of Hartford, 12 la. 554 ; Spencer v. School District Ct. 408. (No. 17), 11 R I. 537; Bradley v. •*They can be in New Hampshire: Town of Richmond, 6 Vt. 121. Con- Wardwell v. Jones, 58 N. H. 305. tra: Hibbard v. Clark, 56 N. H. 155, * Adams v. Tyler, 121 Mass. 380 : 157. See Walker v. Cook, 129 Mass. the case of Williams v. Boardman, 9 577. Allen, 570, distinguished. And the 'd\4: COKPORATIONS AS GARNISHEES. [§ 438. such a corporationat all.^ A corporation may waive objection to garnishment, even where there is no express statute au- thorization for the process against such a body.'^ Waiver^ however, ought not be permitted without the consent of the attachment debtor.* Distinction has been drawn, however, between a pubhc officer of such a corporation and a mere agent appointed by a town to distribute money among its inhabitants; and while the former are not chargeable under trustee process, the latter was held to be so when the corporation itself was liable.^ But, if the corporation is exempt, its agent cannot be garnished though he be a private citizen.^ § 438. Scliool districts. — The rule that public corporations, deriving their authority from the law for the receiving and disbursing of public funds are not chargeable as garnishees, is applicable to school districts, their commissioners, treasur- ers and other officers.*^ School districts are considered as mu- nicipal corporations^ and thus brought under the rule of non- liability.^ They are public corporations.'^ Their officers are 1 Jenks V. Osceola Township, 45 la. 555. 2 Clapp V. Walker & Davis, 25 la. 315; Las Animas Co. Commission- ers V. Bond, 3 Col. 411. 3 School District v. Gage, 39 Mich. 484 ; Johnson v. Dexter, 38 id. 695. 4 Wendell v. Pierce & Trustees, 13 N. H. 503. 5 Merrell v. Campbell, 49 Wis. 535. 6 School District v. Gage, 39 Mich. 484 ; Spencer v. School District No. 17, 11 R. I. 537; Bivens v. Harper, 59 111.21; Millison u Fisk, 43 id. 112; Clark V. Mobile School Commission- ers, 36 Ala. 621 ; Tracy v. Hornbuckle, 8 Bush, 336 ; Bulkly v. Eckert, 3 Pa. St. 368; Fourth School District in Rumford v. Wood, 13 Mass. 193-8-9 ; Thayer v. Tyler, 5 xYllen, 95 ; Colby V. Coates, 6 Cush. 559 ; Hightovver v. Slaton, 54 Ga. 108; McLellan v. Young, id. 399, and 21 Am. Rep. 276 ; Hadley v. Peabody, 13 Gray, 200 : the last three cases cited being to the ef- fect that a teacher's salary cannot be the subject of garnishment. Ross v. Allen, IQ N. H. 96, supports the same proposition. See Johnson v. Pace, 78 111. 143. Contra, Whalen v. Harrison (Mont), 27 P. 384; Waterbury v. Commissioners, 10 Mont. 515. See Seymour v. School District, 53 Ct. 502, as to garnishment to reach a teacher's salary. ''School District, etc. v. Gage, 39 Mich. 484; Seely v. Board of Educa- tion, id. 486 : both upon construction of statute. 8Id. ; State v. Tiedeman, 69 Mo. 307 ; Heller v. Stremmel, 52 id. 309 ; Pendleton v. Perkins, 49 id. 535; Dodd V. Levy, 10 Mo. App. 121, dis- cussing Luthy V. Woods, 1 id. 167; Hightower v. Slaton, 54 Ga. 108; Born V. Williams, 81 id. 797; School District v. Gage, 39 Mich. 484. 9 Trustees of Schools v. Tatman, 13 111. 27 ; Taylor r. Kuipe, 2 Pearson, 151. They are sometimes called qiiasi-cor- porations. See Skelly v. Westminster School District (Cal.), 37 P. 643. §^ 43i), 440.] CITIES. 315 to be treated as public officers, and the money in the hands of such officers to be deemed in custodia legis and therefore not subject to garnishment.^ III. Cities. § 439. Heasons for non-li(ibUWj. — Though there is not uni- formity in the practice, in the several states, with respect to the garnishment of incorporated cities and towns and their officers, yet the same reasoning may be urged against their garnishment as against counties and other public corporations. City governments control large populations and exercise verv important functions. Persons subject to municipal authority feel its operation as sensibly as they do that of the state or federal government. As tax-collecting and tax-distributing powers, cities bear upon the interests of all their citizens.^ They exercise to a great degree the authority of the state it- self, under its surveillance. Almost everv argument ag-ainst the policy of a state allowing itself to be summoned directly, or indirectly through its officers, to appear in the litigation of others in which it has no interest, will ajiply to the case of a municipal corporation. ^ 440. It is true a state offers some reasons for not being directly sued without its consent which a city cannot urge; bat the reason against being garnished which is usually ad- vanced, that it would hinder officers in the discharge of their duties and work to the injury of the public interest, is equally applicable to cities and their servants. That creditors should be allowed the facility which garnishment gives for the collec- tion of their dues is less important than that public duties be perfectly performed. Officers might be harassed daily and drawn from their posts of duty to the courts, to appear in suits against the many employees which a city must owe from time to time, if they were chargeable as garnishees for public funds in their hands. A city is a public corporation, existing for the public good. Upon these and other considerations it ' Millison v. Fisk, 43 111. 112, re- nishment: Edgerton r. Third Muui- aftirmed in Bivens et ah. School Di- cipality of New Orleans, 1 La. Ann. rectors, V. Harper, 59 id. 21. 435 ; ^loore u. Chattanooga, 8 Heisk. - Taxes cannot be reached by gar- 850. !16 CORPORATIONS AS GARNISHEES. [§ 441. has been held that a city is not amenable to garnishment in the absence of statutory provision creating liability.^ And for the same reasons it is held that money in the official pos- session of a municipal officer is not reached by garnishing him.^ Ijut if a city suffers itself or its officers to be garnished, the attachment defendant cannot complain of it and plead the exemption of the city from the process.^ § 441. A creditor of a city officer, in an attachment suit against such officer, cannot make the comptroller of the mu nicipal corporation a garnishee.^ The funds the comptroller holds are the city's till paid over, and not held by him in the capacity of a debtor or agent of the man to whom they are due. The general rule is that salaries of municipal officers are not garnishable, and it has been extended to the wages 1 Hawthorn v. St. Louis, 11 Mo. 60; Sheppard v. County (Mo.l, 18 S. W. 305 ; Merrell v. Campbell, 49 Wis. 535 (in a case against a county) ; People V. Mayor, etc., 2 Neb. 1G6 ; IMerwin v. City of Chicago, 45 111. 133; City of Chicago V. Halsey, 25 id. o96 ; Jenks V. Osceola Township, 45 la. 554; Fortune v. St. Louis, 23 Mo. 239; Hebel v. Amazon Ins. Co., 33 Mich. 407; Hawthorne o. St. Louis, 11 Mo. 59 (see Pendleton v. St. Louis, 49 id. 565) ; Edgerton v. Third Municipality of New Orleans, 1 La. Ann. 435; Wallace v. Lawyer, 54 Ind. 501 ; Par- sons V. McGavock, 2 Tenn. Ch. 581 ; Moore v. Mayor of Chattanooga, 8 Heisk. 850 ; Memphis v. Laski, 9 id. 511; Bank v. Dibrell, 3 Sneed, 382; Baltimore v. Root, 8 Md. 95; Mc- Dougall V. Board, etc., 4 Minn. 184 ; Callaghan v. Pocasset Manufac. Co., 119 Mass. 173; Todd v. Birdsall, 1 Cow. 260 ; Burnliam v. Fond du Lac, 15 Wis. 193. reaffirmed in Bufifham v. Racine, 26 id. 449 ; Columbus v. Dun- nick, 40 Ohio St. 602; Droz v. E. Baton Rouge, 36 La. Ann. 340 ; First N. Bank v. Ottawa, 43 Kan. 294; Switzer v. Wellington, 40 id. 250; Roeller v. Ames, 33 Minn. 132 ; Wil- son V. Lewis, 10 R. I. 285 ;, Adams v. Barrett, 2 N. H. 375; Beckwith v. Baxter and Trustee, 8 id. 67; Brad- ley V. Richmond, 6 Vt. 121 ; Divine V. Harvie, 7 T. B. Mon. 440 ; City of Erie v. Knapp, 29 Pa. St. 173 ; Greer V. Rowley, 1 Pittsburgh, 1 ; McClellaa V. Young, 54 Ga. 399 ; Maryland r Bait. & O. R. R., 12 Gill & J. 399 Mobile V. Rowland, 26 Ala. 498 President of Union Turnpike Co. v. Jenkins, 2 Mass. 37; Pittstown v. Plattsburgh, 18 Johns. 407, 418 Smith V. Woolsey, 22 111. App. 185. - Wallace v. Lawyer, 54 Ind. 501 ; Triebel v. Colburn, 64 111. 376 ; Had- ley V. Peabody, 13 Gray, 200 ; Ward V. County of Hartford, 12 Ct. 404; Erie v. Knapp, 29 Pa. St. 173 ; Moore V. Mayor of Chattanooga, 8 Heisk. 850; Memphis v. Laski, 9 id. 511; Edmundson v De Kalb Co., 51 Ala. 103. See Rodman v. Musselman, 12 Bush, 354 : Lightner v. Steinagel, 33 III. 510 ; Millisou v. Fisk, 43 id. 113 ; Smith V. Woolsey, 22 111. App. 185. 3 Wales V. Muscatine, 4 la. 302. See Mobile Street R. Co. v. Turner, 91 Ala. 213. 4 Waldman v. O'Donnell, 57 How, Pr. 215. § 442.] CITIES. 317 of emplo3^ees;' and where this prevails, a city, though it may be there generally garnishable, would not be, in a suit for such dues. When summoned, a city held money of the defendant under special agreement that it should be applied to the payment of his taxes. Under such circumstances the money was not liable to garnishment. But when the city answered, the money, still in the city garnishee's hands, was no longer held for the taxes — they having been paid meanwhile. On the principle that the validity of a garnishment must be deter- mined by the state of things existing at the time of the sum- mons,- the city was held not liable. §442. LiaMUty. — It is not everywhere settled, however, that municipal corporations, directly or through their officers, are free from liability to garnishment. Courts, in enforcing positive statutes, construing doubtful ones, and sometimes in applying general principles, have held such bodies and their representatives chargeable as garnishees.^ Under a statute Avhich subjected " any person, body politic or corporate " to process for the recovery of salaries of its officers, at the suit of creditors, it was held that cities are included,'* but the gen- eral rule is that public corporations are not garnishable, though the statute should expressly authorize the process against "all persons and corporations.'^ The opinion prevails that municipal corporations must be expressly mentioned if they 1 Keyser v. Rice, 47 Md. 203. Bray v. Wallingford, 20 Ct. 416 ; 2 O'Brien v. Collins, 124 Mass. 98. Wales v. City of Muscatine, 4 la. On the other hand, a tax-payer can- 302 ; Speed v. Brown, 10 B. Mon. not be garnished by the creditor 108; Pendleton v. Perkins, 49 Mo. of a municipal corporation for the 56o ; Wilson v. Lewis, 10 R. I. 285 ; amount of his taxes. This was held Rodman v. Musselman, 12 Bush, 354. to be the rule, even when the tax- See Heibner v. Chave, 5 Barr, 15 ; payer had given his note and the Neuer v.. O'Fallon, 18 id. 277. In city had obtained judgment thereon. Massachusetts " there has never been Uuderhill v. Calhoun, 63 Ala. 216. a doubt that cities and towns are But see Smoot v. Hart, 33 id. 69. chargeable as trustees " in cases of •* I\Iayor, etc. v. Horton, 38 N. J. L. contract. Adams v. Tyler, 121 Mass. 88 ; Whidden v. Drake, 5 N. H. 13 ; 380. City of second class not gar- City of Denver v. Brown, 11 Colo, uishable in Kansas. Switzer ?'. Well- 337; Laredo v. Nalle, 65 Tex. 359; iugton, 40 Kan. 250. Sefi Doll man r. Newark v. Funk, 15 Ohio St. 462; Moore, 70 Miss. 267. Saner v. Nevadaville, 14 Colo. , 54 ; •* City of Newark v. Funk, 15 Ohio Brown v. Collins (R L), 27 A. 329 ; St 462. 318 COEPOEATIONS AS GARNISHEES. [§§ 443, 444. are to be made garnishable by statute. But it is held that a city may waive its privilege.^ § 443. Statute authorhation. — In the interpretation of stat- utes authorizing the garnisliment of perso7is without naming corporations, it has been argued that the latter are not in- cluded, and that this appears from the requirement that the answers must be under oath ; and, for this reason, a town was held not amenable to garnishment.^ There would seem to be no difficulty about the affidavit, if artificial persons are in- tended under the general term, since corporations always act and speak and swear by their officers.^ The reasoning with respect to the oath that would exclude public would also ex- clude private corporations from the intendment of the statute. When municipal corporations are garnishable, they are sub- ject to the rules governing private garnishees, but there are commonly statutory exceptions in favor of officers and employ- ees, policemen, agents, etc.^ They are not liable to the pro- cess on a claim which could not be made a cause of action against them in a direct sut by their immediate creditor. The exemption of cities from garnishment inures to the benefit of their sureties.^ lY. Private Corporations in General. § 444. LiahiUtij. — Artificial persons of private character are subject to garnishment precisely as natural persons.^ A corporation speaks through its president or other representa- tive officer, and may thus answer interrogatories under oath as well as any other third person holding assets of the defend- ant or indebted to him. Liable to direct suit, it is liable to the side action by which it is summoned into court to declare its position, and it may be ordered to pay over what it has, 1 Clapp V. Davis, 25 la. 315. McDonalcL 5 Ga. 531 ; Branch Bank 2 Bradley v. Town of Richmond, 6 v. Poe, 1 Ala. 396; Cook v. Walthall, Vt. 121 ; Union Turnpike Road v. 20 id. 334. Jenkins, 2 Mass. 37. * Keyser v. Rice, 47 Md. 203. 3 Oliver v. C. & A. R. R. Co., 17 111. & City of Dallas v. Western Electric 587 : Head v. Merrill, 34 Me. 586 ; Co., 83 Tex. 243. Bushel V. Commonwealth Ins. Co., 13 ^ Knox v. Protection Ins. Co., 9 Ct. S. & R.' 173 ; Callahan v. Hallowell, 430. 2 Bay, 8 ; South Carolina R. R. Co. v. § 44:4.] PRIVATE CORPORATIONS IN GENERAL. 319 just as any other garnishee may be.^ The summons must be directed to, and served upon, the corporation itself; upon such officer as it puts forward to represent it as a body ; not upon any officer thereof, since the summons might thus be binding only on the subordinate and not legally bring the corporation itself into court.^ The summons should be directed to the corporation itself.^ Judgment cannot be rendered against a corporation as gar- nishee unless it has been legally summoned.* If summons on its " nearest agent " is allowed, the return must so describe him as to identif}^ him.'^ Service on a corporation " manager" was held bad where the statute described what persons should be served.^ Service on a foreign corporation, by garnishing the insurance commissioners of the state, was allowed under statute." A corporation should answer as garnishee through its official head, by the officer entitled to use its seal, or by such person as the body is accustomed to put forward to represent it in legal matters, provided he is so authorized that his answers will bind the corporation. When an oath is requisite, it must be made by the president or other official head, or by the duly authorized person who is capable of binding the corporation, whoever he may be, under the charter.^ 1 Bait. & Ohio R. R. Co. v. Galla- and cashier were temporarily out of hue, 13 Grattan, 655 ; Boyd v. Chesa- the bank room, was held good. First peake & Ohio Canal Co., 17 Md. 195 ; N. Bank v. Turner, 30 Neb. 80. So Taylor v. Burlington & Mo. R. R service on a station agent of a rail- Co., 5 la. 114; Wales v. Muscatine, road company. Mangold v. Dooley, 4 id. 303 ; Knox v. Protection Ins. Co., 89 Mo. 111. 9 Ct 430 ; Trenton Banking Co. v. " Insurance Co. v. Friedman, 74 Haverstick, 6 Halsted, 171. Tex. 56. •-'Wilder v. Shea, 13 Bush, 138; ^ Haley i'. Railroad Co., 80 Mo. 113; Kennedy r. H. L. «& S. Society, 38 Gales v. Tusten, 89 id. 13 ; Mangold Cal. 151 ; Claflin v. Iowa City, 13 la. v. Dooley, id. Ill; Farmer u Medcap, 284; Clark v. Chapman, 45 Ga. 486; 19 Mo. A pp. 250; Insurance Co. v. Lambeth v. Clarke, 10 Heisk. 33 ; Friedman, 74 Tex. 56 ; McDonald v. Harris v. Somerset & Ken. R R. Co., Moore, 65 la. 171. 47 Me. 398 ; Greer v. Rowley, 1 Pitts- ^ Norvell v. Porter, 63 Mo. 309. burgh, 1 ; Davidson y. Donovan, 4 Cr. ^Tompkins, etc. Co. v. Schmidt C. C. 578. Not good on book-keepei-. (Tex.), 16 S. W. 174. Pettit V. Booming Co., 74 Mich. 314. "Mohassuck Felt Mills v. Bland- But service on the book-keeper dur- ing, 17 R I. 397. mg bank hours, when the president « Baltimore & O. R Co. v. Galla- 320 CORPORATIONS AS GARNISHEES. . [§ 445. Although in an attachment suit against a private corpora- tion the treasurer of that corporation cannot be made a gar- nishee and the funds he officially holds attached in his hands,^ yet in a garnishment proceedings against such body the sworn answer may be by the treasurer if authorized to represent it.^ A corporation cannot be successfully garnished upon the showing that the attachment defendant had done work for it, and that its books indicate a balance in his favor; there should be the further showing that such balance is due and payable to the defendant.* It should be made to appear that the cor- poration has a definite sum of money in hand belonging to the defendant which it cannot justly retain, which is the rule when a natural person is subjected to garnishment,* or that it is unconditionally indebted to him, or holds property of his, according to the general rule. It may have received a de- posit from an agent, and be liable to garnishment in a suit against him when no principal is disclosed or has appeared.^ Y. Banks. § 445. Only what a bank holds of the defendant's property, or what it owes him, can be reached by garnishment. It does not hold the stock of a stockholder of its corporation in such a sense as to be his debtor. The same is true of any other corporation with regard to any part of its own stock owned by the defendant. "A certificate of stock is not a security for money, nor a negotiable instrument in the strict sense; simply a muniment and evidence of the holder's title to a de- scribed share or interest in stock, as in the propert}'' and fran- chises of a corporation." ^ hue, 13 Gratt. 655 ; Head v. Merrill, 3 Hewitt v. Wagar Lumber Co., 38 34 Me. 586 : Oliver v. Chicago & A. R. Mich. 701. R. Co., 17 111. 587. It was held in ■* Peninsular Stove Co. u Hosmer, Georgia that the temporary absence 85 Mich. 400 ; Connor v. Third N. of the president of a domestic cor- Bank, 90 id. 328 ; Rice v. Third N. poration will not warrant service of Bank, 97 id. 414. garnishment on a subordinate officer & proctor v. Greene, 14 R. I. 42; or agent. Steiner v. Central R. R. Co., Gregg v. Bank, 80 Mo. 251. 60 Ga. 552. 6 Anderson's Law Die, Verbo 1 Mueth V. Schardin, 4 Mo. App. " Stock," p. 976, citing Bailey i\ New 403. York Central R Co., 23 Wall. 636. 2 Chicago & R. I. R. Co. v. Mason, 11 111. App. 525. §§ 4'IG, 447.] INSURANCE CO:S[PANIES. 321 § 446. A bank receiving funds belonging to a firm known to be insolvent, in payment of a note due by one member of the firm, may be garnished as the holder of funds of the firm, in an attachment suit against such insolvent partnership.^ Knowledge, on the part of the bank, that a sum paid to it was not the money of its debtor, would make it a party to the fraud thus perpetrated upon the creditors of the insolvent firm. The bank would thus become the unlawful holder of that which was the common pledge of the creditors before the attachment, and of that upon which the attachment creditor had a hypothetical lien after the attachment and garnish- ment. A bank, conniving at the withdrawal of a deposit by a debtor after it has been garnished, will be charged ; ^ but not when summoned between the drawing and the paying of the debtor's check when there is no connivance.^ The payee of a bill of exchange indorses it for deposit to his own credit. The proceeds may be reached by garnish- ment in the hands of the third indorsee to whom the bill was indorsed by the second indorsee "for collection" to his own account. The third indorsee is merely collector for the payee to whom the bill belongs ; so, in a suit against the payee, the third indorsee may be garnished.* A garnished bank is not bound to pay, on negotiable paper, anybody but the holder.* YI. Insueance Companies. § 447. The indebtedness of an insurance company upon a policy may be reached by garnishment. But if there has been a loss by fire, and, by the terms, of the policy, the company has the right to rebuild, it would not be liable as garnishee in a suit against the insured by his creditor.^ It may be gar- 1 Johnson v. Hersey, 70 Me. 74. 5 Karp v. Citizens' Bank, 76 Mich 2 Gibson v. Park Bank, 98 N. Y. 87. 679 ; Leadvilie Bank v. Leppel, 9 3 Bank of America v. Indiana Colo. 594. Banking Co., 114111. 483. ^ee Brown g Godfrey v. Macomber, 128 Mass. V. Leckie, 43 id. 497; Union N. Bank 188; Thorp v. Preston, 42 3Iich. 511 ; V. County Bank, 80 id. 212; Howard Hurst v. Insurance Co., 81 Ala. 174; Iron Co. V. Tillman (Ala.), 15 So. 450. Stone v. Insurance Co., 74 Md. 579, * Freeman v. Sturges Exchange distinguishing Anderson v. Assur- Bank, 86 Ga. 622, See Baer v. En- ance Co., 55 L. J. Q. B. 146. glish, 84 id. 403. 21 322 COKPORATIONS AS GARNISHEES. [§ 448. nishecl before adjustment of the loss, but not charged before,^ unless the company has waived proof of loss.^ It is not liable in a suit against the husband when the insurance is due to his wife.^ The policy is the property of him to whom it was issued, though the premium may have been paid by another; so the company may be garnished in the suit against the holder of it, and not in one against the owner of the property insured.* The money payable by an insurance company, in case of loss, to a mortgagee of the insured property, is not liable to be subjected to garnishment process by the mortgagor's creditors.^ A garnishee, who holds insurance policies as collateral secu- rity for a joint owner of them, cannot be charged unless all the joint owners be made parties, it is held.^ The agents of an insurance compan}'' cannot be garnished for debts due by the company to the attaching creditor, unless they have property or funds of the company in hand.^ § 448. It was held in Virginia that an insurance company, incorporated under United States laws, though complying with the laws of that state in relation to foreign insurance companies doing business therein (Ya. Code, 1873, ch. 36", § 19), is subject to foreign attachment.^ An insurance company may be garnished when doing busi- ness as a foreign corporation;'' and the garnishment will not be defeated by notice of an assignment served on its agent.^" Such company, doing business in Illinois and some other 1 Phoenix Ins. Co. v. Willis, 70 Tex. Schmidlapp v. La Confiance Ins. Co., 12; Hanover Ins. Co. v. Connor, 20 71 id. 246. An agent of the insured, 111. App. 297 ; Bucklin v. Powell, 60 instructed to collect a policy due and N. H. 119. Conijjare Crescent Ins. pay himself as a creditor of the in- Co. V. Moore, 63 Miss. 419. sured, is not the owner of the policy ; 2 Ritter v. Insurance Co., 28 Mo. so the company may be garnished, App. 140. while it holds the money, by any 3 Houghton V. Lee, 50 Cal. 101. other creditor of the insured. Green- 4 Tim V. Franklin, 87 Ga. 93. wood v. Boyd, etc. Factory, 86 Ga. 5 Mansfield v. Stevens, 31 Minn. 40 ; 582. Coykendall v. Ladd, 32 id. 529 ; North 8 Cowardine v. Universal Life Ins. Star, etc. v. Ladd, id. 381. Co., 32 Gratt. 445. « Kennedy v. McLellan, 76 Mich. ^ Weed Sewing Machine Co. v. 598. Boutelle, 56 Vt 570. 7 Daniels v. Meinhard, 53 Ga. 359 ; lo Id. § 440.] COMMON CAKEIERS. 323 states, ma}'^ be garnished by a non-resident creditor, in a suit against the insured, though the policy be payable in the state of the home office.^ This may not be held in every state, as it is a matter of comity and policy. If the company has been already garnished for the same debt, and it has been legally thus attached, in the home state or elsewhere, and the fact is disclosed in the answer, the garnishee should not be charged. Liability may turn upon waiver.- A life insurance company is not liable to garnishment in a suit against the heirs of the insured decedent, when the policy is payable to the administrator;' or in a suit against a hus- band, when the policy was taken by his wife on her own life and by her own funds; ^ but in a suit against a debtor-owner of a paid policy already due to him, the company may be gar- nished though no time for the delivery has been appointed,'^ YII. Common Carriers. § 449. Goods in transitu. — Corporations engaged in trans- porting goods and passengers are garuishable for what they have or owe the principal defendant, just as private persons are liable. But they often have peculiar relations which have given rise to decisions as to their liability under various circumstances. It has been held that a railroad company cannot be gar- 1 Roche V. R I. Ins. Ass'n, 2 111. ^Jq Lovejoy v. Hartford, etc. Ins. App. 360; Fithian v. New York, etc. Co., 11 Fed. 63, it was decided that if R Co., 81 Pa. St. 114; McAllisters, an insurance company has waived Insurance Co., 28 Mo. 214 ; Commer- its right to await the proof of loss, cial Bank v. Chicago, etc. R. Co., 45 before service of garnishment, it be- Wis. 172 ; Brauser v. Insurance Co., comes liable to be charged as gar- 21 id. 50G. The facts in the Roche uishee; but that the rule is otherwise case above cited were as follows : when there has been no waiver. The The Rhode Island Insurance Associa- company's debt is not due and liqui- tion had an agency in Illinois and dated before the adjustment of the another in Wisconsin, and was gar- loss according to the terms of the uished in both states by the same contract. attachment creditor to reach a policy ^ Stowe v. Phinney, 78 Me. 244 ; 57 debt due the defendant in the suits. Am. Rep. 796. The indebtedness was on a policy of ^ Nims v. Ford, 159 Mass. 575. insurance upon the defendant's prop- ^ Tradesmen's N. Bank v. Cresson, erty in Wisconsin and was there ex- 10 Pa. Co. Ct R 57 ; Levi v, Franklin, empt by statute; still the company 87 Ga. 98. was held as garnishee in Illinois. 324 COEPORATfONS AS GARNISHEES. [§ 450. nished as the possessor of goods in transitu, in a suit against the consignor, when they have passed beyond the lines of the state in which the writ is issued; nor while they are yet within the lines, if the writ was served too late for the com- pany to stop the shipping. " Public policy and the proper discharge of the duties of common carriers require that they cannot be held liable upon a garnishee summons for personal chattels in their possession in actual transit at the time the summons is served." ^ In a suit against the consio:nee the carrier is not tarnish- able for goods consigned when they are not the property of the consignee before delivery to him in another state, whither the officer could not go to receive them.^ § 450. A railroad company in ]^e\v York was lessee of roads in Yermont which it operated in both states. It was held in the latter state that the company could not be gar- nished there for a debt payable in the former, where both plaintiff and defendant resided.^ Whether a common carrier may be garnished for goods deliverable in a state other than that in which the writ was issued has been the subject of de- cision turning upon circumstances.^ The affirmative has been held.^ A debt due by a company to its employee in his state has been held not liable to be reached by the garnishment of the company in another state.^ A railroad company operated in Ohio may be garnished there as if it were a domestic cor- poration, though incorporated in another state.' The res must be within the jurisdiction in garnishment as well as in direct attachment.^ 1 Bates V. Chicago, etc. R. Co., 60 6 Louisville, etc. R. Co. v. Dooley, Wis. 296. See St. Louis, «tc. R. Co. 78 Ala. 524 ; Wells v. East Tenn. etc., r. Larned, 103 111. 293 ; Illinois Cen- 74 Ga. 548 ; Straus v. Chicago, etc. tral R. Co. v. Cobb, 48 id. 402; Mich- Co., 46 Hun, 316; Todd v. Mo. Pac. igan Central R. Co. v. Chicago, etc. etc. Co., 33 Mo. App. 110; Fielder v. R. Co., 1 Bradw. 399. Jessup, 24 id. 91 ; Drake v. Lake 2 Clark V. Brewer, 6 Gray, 320 ; Shore, etc., 69 Mich. 168. Compare Walker v. Detroit, etc. R Co., 49 Burlington, etc. Co. v. Thompson, 31 Mich. 446. Kan. 180. 3 Towle V. Wilder, ,57 Vt. 623. ' Pennsylvania R. Co. v. Peoples, 31 4 See Illinois Central R. Co. v. Cobb, Ohio St. 537. 48 111. 402, relative to property not in s Pennsylvania R. Co. v. Pennock, the county when the writ was issued. 51 Pa. St. 244 ; Wheat v. Railroad 5 Adams v. Scobt, 104 Mass. 104. Co., 4 Kan. 370. §§ 451-453.] COMMON CARRIERS. 325 § 451. A railroad company, holding goods as a warehouse- man, after transjDortation, may be garnished in a suit against the owner. The lien of the company as warehouseman ranks iibove that of the pledgee of the property (pledged to secure debt due him) who caused the transportation and storing. Sale by the pledgor to the pledgee, after the garnishment, would not affect the latter's rights between himself and the garnishing creditor.^ A judgment creditor may garnish the bailee of a railroad <3ompany to attach what he holds of its money, and thus create a lien upon it,'^ A railroad company may be garnished for a Universal Fire Ins. Co. v. Tabor, 5 Younkin v. Collier, 47 Fed. 571. 16 Colo. 531. s Wooldridge v. Holmes, 78 Ala. i^ Davis v. Montgomery (Ala.), 8 So. 568 ; Carroll v. Miller, 93 id. 301 ; Jo- 496 : Ruse v. Bromberg. 88 Ala. 629. seph V. Davis (Ala.), 10 So. 830. ^ Fidelity Ins. Co. v. Railroad Co., •Simpson v. Reynolds. 71 Mo. 594; 33 W. Va. 761 ; Railroad Co. v. Pen- Hannah V. Moberly Bank, 67 id. 678 ; nock, 51 Pa. St. 244. 330 COBPOEATIONS AS GARNISHEES. [§ 459. nishment.^ When not so held, a shareholder's balance, due by a corporation, is subject to the process, though he may not have been notified of the balance.^ Is stock held as collateral security amenable to the process in a suit against its owner? ^ It has been held that corporation stock in the hands of a pledgee is not garnishable.'' He has rightful possession and a lien upon the stock, and therefore a better right to hold than the creditor of the owner who seeks to create a lien. Stock in a foreign corporation, owned by a non-resident but held in trust by a resident, cannot be reached by garnishing the trustee.^ The seller of his stock, who has returned the stock certifi- cates for transfer to the purchaser, cannot be garnished as the possessor of the stock though summoned before the trans- action has been put in writing and signed by him, and entered upon the books of the corporation.*' If shares of a stockholder can ordinarily be reached by the garnishment of the corporation in which they are held, in a suit against himself,^ it may safely be said that shares owned by a non-resident in a foreign corporation cannot be reached by serving notice on a secretary or other officer of such body who may keep an office within the jurisdiction. The notice may be complete, such as would prove efficient if the shares were within the jurisdiction and under the control of the officer, but the insurmountable difficulty is that the shares are in another state. They have not even a constructive pres- ence at the place where the officer is found. By no legal in- tendment can they be there when they are really elsewhere and liable to attachment where they are. X. COEPOKATION IN FoEEIGN StATE. § 459. It does not affect the situs of the shares when the foreign corporation does business in several places ; it does not give the shares a situs in every place where the business 1 Hitchcock V. Galveston Wharf ecooke u Hallett, 119 Mass. 148. Co., 4 Woods, 295. "' It has been held that they cannot : 2 Atwood V. Dumas, 149 Mass. 167. Ross v. Ross, 25 Ga. 297 ; Planters' 3 Smith u Bank, 82 Tex. 368; Evans & Merchants' Bank v. Leavens, 4 V. Brownscombe, 8 Pa. Co. Ct. R. Ala. 753. And that they can be: 456. Chesapeake R. R. Co. v. Paine, 29 4 Morton v. Grafflin, 68 Md. 545. Gratt 502 ; In re Glen Iron Works, a See Smith v. Downey, 132 Ind. 83. 17 Fed. 324. §§ 460, 461.] COEPORATION IN FOREIGN STATE. 33l is done. It has been held that a corporation does not have a multiplicity of domiciles because it does business in many- places; that its existence is owing to its legislative creation, and it cannot overleap the boundary of the state which gave it being. " We regard the principle to be too firmly settled by repeated adjudications of the federal and state courts to aJmit of further controversy, that a corporation has its domi- cile and residence alone within the boundaries of the sov- ereignty which created it, and that it is incapable of passing personally beyond that jurisdiction," ^ say the court of appeals of Xew York. § 460, This doctrine formerly w^as carried so far as to pre- clude any action against a corporation on a personal demand except in the state of its creation. It was held that it dwelt at home and could not " migrate to another sovereignty ; " that its officers could not carr}^ their corporate functions with them when crossing the line from the state of its domicile; that there was no mode to compel its appearance in any court bevond the state in which the corporation was chartered. - The doctrine was narrow and prejudicial to commerce; it worked to the detriment both of corporations and their cred- itors. Some courts, therefore, though holding the general doctrine, excepted corporations which sent officers into an- other state to transact corporation business there.^ This ex- ception has crystallized into statute law in many states ; and now it is generally held to be the prevailing doctrine.* § 461. A foreign corporation doing business in Maine may have its agent garnished for property in his possession owned by a non-resident defendant, though the defendant has not 1 Plimpton V. Bigelow, 93 N. Y. L. 222 ; Chaffee v. Rutland R Co., 55 598 (citing Bank of Augusta v. Vt. 110. Earl e, 13 Pet. 519; Lafayette Ins. 4 Bair u. King, 96 Pa. St 485 ; Dar- Co. V. French, 18 How. (U. S.) 404 ; liugton v. Rogers, 13 Phila. 103. A Merrick v. Van Santvoord, 34 N. Y. plaintiff obtained in his own state a 208; Stevens v. Plio^nix Ins. Co., 41 judgment against a foreign insurance id. 150); Mayor r. Liverpool Ins. Co., company doing business there. It 40 ]Md. 595. was held that the judgment debt had - McQueen v. Middleton Man. Co., a situs in his own state only for the 16 Johns. 5 ; Peckham v. North Par- purposes of garnishment. Renier v. ish in Haverhill, 16 Pick. 274. Hurlbut, 81 Wis. 24; Wis. Rev. Stat. 3 Libbey v. Hodgdon, 9 N. H. 394 ; g 1974. Moulon V. Trenton Ins. Co., 24 N. J. 332 CORPOEATIONS A.S GARNISHEES. [§ 462. been previously served, it is said ;^ but he must have been noti- fied by publication. The consent of the state into which a foreign corporation sends officers and does business is necessary; and, in granting it, conditions may be imposed.- The conditions obviously must be constitutional, consonant with the maintenance of the jurisdiction of each state from encroachments, and such as will give foreign corporations the opportunity of defending suits, just as natural persons must be afforded such opportu- nity.^ If the conditions imposed upon a foreign corporation go beyond these restrictions ; if they nominally authorize service upon a private member, or even an officer of a foreign corpo- ration who is not authorized by it to represent the body, when found within the state in which the suit is brought and in which the corporation is not chartered, they would virtually deny notice to the defendant and thus cut him off from any opportunity of defense. § 462. The corporate entity cannot travel from one state to another, but it can authorize an agent to represent it be- yond its home and no other power can appoint such agent. If one of its officers is doing business for it in a state which has given its consent upon the condition that such officer thus en- gaged may be served with process binding on his principal, doubtless he may be legally served so as to bind the corpora- tion ; but if he is there on his own account merely, the foreign- chartered body cannot be served by the service upon him, officer of the corporation though he be.* The reasoning which shows that foreign corporations must have summons served on their own constituted representatives in personal actions is just as applicable and forcible when the suit is only nominally personal but is in effect against their property (an attachment suit). In either case there must be 1 Cousens v. Lovejoy, 81 IMe. 467, Lafayette lus. Co. v. French, 1 8 How. distinguishing Lovejoy v. Albee, 33 404. id 414; Columbus Ins. Co. u Eaton, 3 id. ; Newell v. Great Western 85 id. 391, and Smith v. Eaton, 36 id. Railway Co., 19 Mich. 344. 298. " Id. ; St Clair v. Cox. 106 U. S. 350, a Paul V. Virginia, 8 Wall. 168; 358. §§ 463, 464.] SITL'S OF SHARES. 333 either summons or publication notice and thus opportunity for defense accorded.^ § 463. A corporation may sue and be sued in a state other than that of its domicile where it does business and has an officer representing it who may be served with process.- But its liability to suit there is no argument to prove that its prop- erty, situated at its domicile, is constructively in the state and liable to be attached. iSTor is it any argument that a non- resident who owns stock in the corporation at its domicile has such stock constructively wherever elsewhere the corporation may have established an agency so as to render it attachable as his property in every such place. XI. Situs of Shares. § 464. If a corporation may be deemed a creditor of the shareholder wherever it has established an agency and placed officers so that it may there sue and be sued; and if under such circumstances, b}^ reasonof statutory provisions, the credit may be subject to the garnishment process in a case of foreign attachment against the non-resident stockholder,^ it does not follow that the shares could be directly attached as things within a jurisdiction other than their own situs; in other words, to quote again from Plimpton v. Bigelow {sujprd): " Manifestly the res cannot be within the jurisdiction, as a mere consequence of a legislative declaration, when the actual locality is undeniably elsewhere. . . "Whatever view may be taken as to the right to attach a debt owing by a for- eign corporation to a non-resident, by service of notice on an agent of the corporation within the jurisdiction, we think, in respect to corporate stock, which is not a debt of the corpora- tion in any proper sense, it would be contrary to principle to lid., p. 351. "No question was Ins. Co., 21 "Wis. 506. Service of gar- raised" on this point. nishment on an officer of a forei.2;n 2Gibbs r. Queen Ins. Co., 63 N. Y. benevolent association found in the 114; 20 Am. Rep. 513 ; Lafayette Ins. state and his disclosure v.ere held Co. V. French, 18 How. (U. S.) 40-1 ; binding on the association. First N. Jones V. N. Y. & Erie R Co., 1 Grant. Bank v. Burch, 80 Mich. 242. 457; Fithian v. N. Y. & Erie R. Co., SBarr v. King, 96 Pa. St. 485; Na- 31 Pa. St. 114; McAllister r. Pa. Ins. tional Bank v. Huntington, 129 Mass. Co., 28 Mo. 214 ; Brauser v. New Eng. 444. 334 COKPOKATIONS AS GARNISHEES. [§ 465. hold that it can be reached by such a notice. "We are there- fore of the opinion that the fundamental condition of attach- ment proceedings, that the^'es must be within tlie jurisdiction of the court in order to an effectual seizure, is not answered in respect to shares in a foreign corporation by the presence here of its officers, or by the fact that the corporation has property and is transacting business here, and that section 047 [of the New York code] must be construed as applying to domestic corporations only." ^ § 465. An intangible interest may be the res of the direct attachment suit as well as a tangible thing,^ The difference in the method of seizure does not render the one more liable to attachment than the other. Either may be reached by di- rect attachment or by garnishment depending solely on its custody — whether in the hands of the defendant or in those of a third person. Either may be made the res of an attach- ment suit, if it is within the jurisdiction; neither can be (on any general principle) if it is without the jurisdiction. Gar- nishment process cannot be prosecuted without a 7'es any more than direct process of attachment can. If a credit is subjected to garnishment, that is the intangible res which is proceeded against. If some right susceptible of seizure only by notice is held directly by the defendant, it may be the in- tangible res that is proceeded against. So the doctrine that shares in a corporation cannot be attached when they are located beyond the jurisdiction should be extended to "in- tangible interests " and to credits, either located or payable there, as the case may be; and it is difficult to conceive how any legislature can effectually declare any property whatever 1 The court cited Moore v. Geunett, another state for the debt under law 2 Tenn. Ch. 375 ; Christmas v. Biddle, there for serving foreign corpora- 13 Pa. St. 223 ; Childs v. Digby, 24 id. tions. Ala., etc. R. Co. v. Chumbey, 26; Drake on Attachment, §§ 244, 92 Ala. 317; Louisville, etc. R Co. 471, 478, to support the doctrine as a v. Dooley, 78 id. 524. Compare general principle ; and, to show that East Tenn. R. Co. v. Kennedy, 83 id. the defendant might have the attach- 462. See Green v. Bank, 25 Ct. 452. ment vacated : Dunlop v. Patterson 2 Tufts v. Volkening (Mo.), 27 S. W. Fire Ins. Co., 74 N. Y. 145 ; 30 Am. 522. A claim against a railroad com- Rep. 283 ; Blossom v. Estes, 84 N. Y, pany for damages, is not subject to 617. In Alabama it is held that a attachment. Selheimer v. Elder, 98 domestic corporation, indebted to Pa. St. 154. resident, cannot be garnished in §§ 4:66, 467.] SITUS of shakes. 335 to be in a different place from that which it really occupies. A foreign corporation is not garnishable when holding noth- ing of the defendant within its state and owing him nothing payable there.^ § 4:66. In a case of foreign attachment in which the non- resident debtor is not served and does not appear, though notified by publication; and in which a creditor of the de- fendant, being garnished, answers that he owes the defendant, if that credit thus attached in third hands is not the 7'es of the suit, against what does the attaching creditor proceed? And if the credit is amenable only to a foreign jurisdiction, how can the court be said to have jurisdiction over it? It would be precisely as if the garnishee had answered that he held in his possession and under his control tangible property in another state belonging to the defendant. The credit is attachable when it has followed the person garnished and has thus come within the jurisdiction; when it is collectible within the juris- diction. Its liabilit}^ is governed by precisely the same prin- ciple which governs that of things susceptible of manipula- tion.- §■±67. Jurisdiction,) etc. — If the court's jurisdiction is con- fined to a county, service on a railroad company creates no lien upon property not within the county at the time.^ Where the jurisdiction of the court is established, there can be no doubt that a stock subscriber who has not paid may be garnished as the debtor of the corporation which has sold him the stock, in an attachment suit, foreign or domestic, against 1 Wright V. Chicago, etc. R Co., 19 to the attachment, must be within the Neb. 175 ; Matthews v. Smith, 13 id. jurisdiction. . . . The principle [is] 190 ; Lawrence v. Smith, 45 N. H. found in the codes of all enlightened 533 ; Jones v. Winchester, 6 id. 497 ; nations that jurisdiction, to be rightly Gold V. Railroad Co., 1 Gray, 424 ; exercised, must be founded upon tlie Nye V. Liscombe, 21 Pick. 263 ; Dan- presence of the person or thing, in forth V. Penny, 3 Met. 564 ; Tingley respect to which the jurisdiction is u Bateman, 10 Mass. 343. exerted within the territory. (Story's i" Credits, choses in action and Confl. of Laws, §§ 5.32, 592a; Gibbs other intangible interests are made v. Queen Ins. Co., 63 N. Y. 114; 20 by statute susceptible of seizure by Am. Rep. 513 ; Street v. Smith, 7 W. attachment The same principle, & S. 447.) " Plimpton v. Bigelow, 93 however, applies in this case as in N. Y. 596, 597. the other ; the res. that is, the intan- s Sutherland v. Peoria Bank, 73 gible right or interest to be subject Ky. 250. In Indiana a foreign cor- 336 CORPOKATIONS AS GARNISHEES. [§ 468. the corporation.^ And he is chargeable for unpaid calls on assessments.- § 468. As the receiver for a foreign corporation, appointed in the state where such body is domiciliated, must make him- self a party to the suit in the state where it is instituted against property of such corporation before he can plead and defend against the attachment,^ so he must be duly qualified to represent the corporation before it can be garnished through him. Though the corporation may legally designate some minor officer upon whom process may be served, or authorize such officer to answer when the service may have been, on another, a minor officer not thus designated cannot be made the rep- resentative of the body at the will of the attaching creditor, or at his own will; and therefore neither service upon him nor acceptance thereof, nor even his appearance, can bind the corporation without its assent,* either as defendant or gar- nishee. poration may be sued by attachment v. Irvine (Ala.), 15 So. 429, distin- in any county where it has an agent, guishing Parsons v. Joseph, 93 Ala. lud. Rev. Stat., § 309 ; Debs v. Dal- 403, 407 ; Elyton v. Land Co., id. 407. ton (Ind.), 34 N. E. 236. In Ala- ^ paull v. Alaska G. & S. M. Co., 8 bama a summons in garnishment Sawyer, 420 ; Bingham v. Rushing, 5 may be in any county where levy Ala. 403 ; Pease v. Underwriters' can be made in attachment, if the Union, 1 111. A pp. 287 ; Hays v. Ly- defendant resides in the state. Mc- coming Fire Ins. Co., 99 Pa. St. 621. Phillips V. Hubbard (Ala.), 12 So. 3 s. C. R. R. v. People's Saving In- 711 ; Herndon v. Givens, 16 Ala. 261 ; stitution, 64 Ga. 18. Atkinson v. Wiggins. 69 id. 190 ; ^ Duke v. R. I. Locomotive Works, Home Protection v. Richardson, 74 11 R. I. 599; Varnell v. Speer, 55 Ga. id. 468. 132 ; Clark v. Chapman, 45 id. 486 ; 1 Meints v. East St. Louis Rail Mill Daniels v. Meinhard, 53 id. 359 ; Claf- Co., 89 111. 48 ; Pease u. Underwriters' Hn v. Iowa City, 12 la. 284; Ray- Union, 1 111. App. 287; Langford n mond v. Rockland Co., 40 Ct. 401 ; Ottumwa Water Power Co., 59 la. Greer v. Rowley, 1 Pittsburg, 1 ; Ken- 283. But not if the stock has been nedy v. H. L. & S. Society, 38 CaL paid for, though paid in property 151. less valuable than the stock. Nicrosi CHAPTER XIIL GARNISHMENT PROCEEDINGS BEFORE THE DISCLOSURE. I. Nature op the Proceeding §§ 469-480 II. Requisites for the Issue of the Writ 481-48G III. The Interrogatories 487-491 IV. Service and Return 492-498 V. Default 499-502 I. Nature of the Proceeding. § 469. Definition. — Garnishment is the admonition judi- cially given to the attachment defendant's debtor or holder of property, warning him against payment or. restoration to the defendant, and bidding him hold the property or credit sub- ject to the order of court. It is the process by which the gar- nishee is brought into court, and also that by which the de- fendant's credit or property is attached in the garnishee's hands. Its service is constructive seizure by notice.^ It is attachment in the hands of a third person ; and this, whether employed in the incipiency of a suit or to aid execution after an ordinary judgment against the defendant.- It does not require previous demand or notice.^ iBeamer v. Winter, 41 Kan. 596. 535; Moore r. Holt, 10 Grattan, 284; 2JaflFray's Appeal, 101 Pa. St. 583; Bigelow v. Andress, 31 111. 322; Wal- Lush V. Galloway, 53 Wis. 164; cott v. Keith, 2 Foster, 196; Ren- Swett V. Brown, 5 Pick. 178 ; Benton necker v. Davis, 10 Richardson's Eq. V. Snyder, 22 Minn. 247 ; Blaisdell v. 289 ; Wilder v. Weatlierhead, 32 Vt Ladd, 14 N. H. 129 ; Padden v. Moore, 765 ; Johnson v. Gorhani, G Cal. 195 ; 58 la. 703 ; Kennedy v. Brent, 6 Cr. Hicks v. Gleason, 20 Vt. 139. In 187; Matthews v. Smith, 13 Neb. 178; Wisconsin the garnishee is consid- Tindell v. Wall, Busbee, 3 ; Wells v. ered a party, and the court may order American E.xpress Co., 55 Wis. 23; him to show his title or contract be- Thompson v. Allen, 4 Stewart & Por- fore issue joined on his answer, ter, 184 ; Watkins v. Field, 6 Ark. Lush v. Galloway, 52 Wis. 164. 891 ; Byran v. Lashley, 13 Smedes & ^ Webster Wagon Co. v. Peterson, M. 284; :Martin v. Foreman, 18 Ark. 27 W. Va. 314: Ham v. Peery, 39 111. 249; Tillmghast v. Johnson, 5 Ala. 341; Fisher r. Hall, 44 Mich. 493. 514; Hacker v. Stevens, 4 McLean, 338 GARNISHEE PEOCEEDINGS BEFORE DISCLOSURE. [§§ 470, 471. § 470. Personal suit against garnishee. — The proceeding against the garnishee can be explained, and all its peculiari- ties and anomalies presented, more easily when treated as a suit at law than when described as something different.^ It is strikingly dissimilar to all other suits in several particulars, yet it is a judicial cause between parties; it is begun by a summons or its equivalent, and it results in a judgment, with all the other characteristics essential to a law-suit. In this pro- ceeding there may be, and there often is, a litigious contest; w^itnesses may be introduced by either part}'^; an issue of fact may be tried by jury; judgment may be rendered for or against the garnishee; judgment against him may be exe- cuted; and appeal may follow judgment. When there is such litigious contest, the existence of a suit is readily apparent ; but when, after summons, in response to interrogatories, the garnishee answers so as to preclude any contest, is the gar- nishment proceeding a suit? Should he unequivocally deny liability and obtain his discharge; or admit it, and acquit him- self by paying or delivering to the court; or, making no op- position, should acknowledge his liability and submit to the order of court, could it be rightly said of him that he is only a witness?- § 471. As in any law-suit whatever, the defendant may decline to make issue, may admit all that the plaintiff alleges, may comply at once with the demand and avoid any litigious contest, so in garnishment proceedings, the party against whom the process is directed ma}^ avoid making any issue by acknowledging all that the plaintiff alleges; but the acknowl- edgment would not render the proceeding in the latter case different from that in the former, so far as concerns the ques- tion whether it is a suit. If the proceeding is a law-suit it is such from its incipiency, 1 Citizens' Bank v. Farwell, 56 Fed. Co., 19 Fed. 252; Coda v. Thompson 570, 573 ; U. S. Rev. Stat., § 914 ; Kan. (W. Va.), 19 S. E. 548; Ringold v. Gen. Stat. (1889), § 4290 ; Hey ward v. Suiter, 35 W. Va. 186. Manufacturing Co. (Ala.), 18 So. 837 ; ^ Jones v. Roberts, 60 N. H. 216; Cross V. Spillnian, 93 Ala. 170 ; Ed- Tliompson v. Silvers, 59 la. 670. A mondson i'. De Kalb, 51 id. 164; wife may be garnished in a suit Treadway v. Treadway, 56 id. 391 ; against her husband but cannot be Harris v. Miller, 71 id. 26, 32 : Mid- made a witness against him. dleton Paper Co. v. Rock River Paper § 472.] NATURE OF PKOCEEUIXG. 339 and not merely from the time the plaintiff takes issue and traverses the answer. Judgment eventually follows, whether the plaintiff's interrogatories be answered so as to charge or discharge the garnishee. Up to the point where issue is joined, the garnishee is none the less a party because he is like a wit- ness; just as an ordinary defendant is none the less a party by reason of the service of interrogatories upon him which he is bound to answer as though he were a witness. § 472. The attachment-defendant'' s attitude. — The plaintiff virtually sues the garnishee for a debt due the defendant, by the process of garnishment. He takes the shoes of the latter and asserts the rights which the latter has against a third person,^ He has to make out the case against the garnishee (where he is permitted to do so), unless the indebtedness to the defendant be admitted by the garnishee. On the other hand, the defendant to the main action does not sue the gar- nishee, though the garnishment is based upon the obligation due the defendant. Denying indebtedness to the plaintiff, and resisting payment, he is averse to the success of the plaint- iff's side action against the third person. Standing in the defendant's place, the plaintiff can have no greater rights than he, had the garnishee been sued by the defendant. On the other hand, if the garnishee denies indebt- edness, he has the same rights of defense, and no more nor less, than if sued by his creditor. The proceeding may there- fore be called a suit.- It is a suit at law,^ and may be tried by a jury.* 1 Hallowell v. Leafgreen, 3 Colo. v. Pierson, 42 Ala. 370 ; Thomas i\ App. 22; Railway Co. v. Smeeton. 2 Hopper, 5 id. 442; Massachusetts X. id. 126; Henderson v. Insurance Co., Bankr. Bullock, 120 Mass. 86; Clarke 72 Ala. 38 ; Harris v. Miller, 71 id. 32 ; v. Farnum, 7 R. I. 174. McAdams v. Beard, 34 id. 478 ; Tim v. 2 Zanz v. Stover, 2 New Mex. 29 ; Frauklin. 87 Ga. 95 ; Bates v. Forsyth, Travis v. Tartt, 8 Ala. 574 ; Moore v. (i9 id. 365; Farwell v. Chambers, 62 Stainton. 22 id. 831; Jones v. New :Mich. 316 ; Delacroix v. Hart, 24 La. York & Erie R. R. Co., 1 Grant, 457 ; Ann. 141 ; Griel v. Loftin, 65 Ala. 591 ; Cross r. Spillman, 93 Ala. 170 ; Thorn Jones V. Huntington, 9 Mo. 249 : v. Woodruff, 5 Ark. 55 ; Malley i'. Burnham v. Hopkinson, 17 N. H. 259 ; Altman, 14 Wis. 22 ; Gorman v. Treadwell v. Brown, 41 id. 12 ; Hassle Swaggerty, 4 Sneed, 560 ; Smith i: V. Congregation, 35 Cal. 378 ; Golden Dickson, 58 la. 444 ; Caldwell r. Stew- •5 Case V. Noyes, 16 Oreg. 539. ^ Lehman v. Hudmon, 85 Ala. 135. 3-iO GARNISHEE PKOCEEDINGS BEFORE DISCLOSURE. [§§ 473, 474:. § 473. Garnisliee's iwsition. — The garnishee, however, is not a party to the suit between the plaintiff and the defend- ant: he is only a party to the suit against himself in which the plaintiff urges the rights of the principal defendant against the garnishee. The fact that the plaintiff and the garnishee are both citizens of the same state is no obstacle to the re- moval of an attachment suit to the federal court.^ It is the suit between the attaching creditor and his debtor that is thus removed, because one of these parties resides in another state ; and to this contest the garnishee is not a party litigant. At- tachment suits are thus transferable like other actions.^ It is held that the garnishment contest between the plaint- iff and the garnishee is not removable apart from the principal suit.^ Under whatever state statute it may be brought, and however one suit may differ from another in other respects, the garnishment suit never stands alone, whether it is united with the principal cause in the same court or is brought sepa- rately in a different court; whether the process against the garnishee is by summons to answer interrogatories or by any other method ; whether in the principal action there is service effected upon the defendant or notice by publication to the owner of the assets attached. § 474. Garnisliment suhsidianj to tlie main action. — The plaintiff's right of action, the effectiveness of the judgment, and the protection of the garnishee from subsequent attack after payment under judgment, depend upon the principal action : its rightful institution, rightful judgment thereon and rightful execution of the judgment. Whatever dissolves the attachment releases the garnishee, though judgment may have been rendered against him. Reversal of the judgment against the principal defendant on appeal will virtually reverse the judgment against the garnishee though not appealed. Though the principal judgment may hold good when the auxiliary one is reversed the converse is not true. In no case art, 30 id. 379 ; Padden v. Moore, 58 2 Keith v. Levi, 1 McCrary, 343 ; U. id. 703 ; Tunstall v. Worthington, S. Eev. Stat.. § 646. See Barney v. Hempstead, 622; Wells v. Am. Ex. Globe Bauk, 5 Blatchf. 110; Bates v. Co., 55 Wis. 23 ; Webster Wagon Co. Days, 11 Fed. 529. V. Peterson, 27 W. Va. 314. ^ Pi-att v. Albright, 10 Bissell, 611. 1 Cook V. Whitney, 3 Woods, 715. § 475.] NATURE OF PROCEEDING. 341 can the judgment against the garnishee stand after that against the principal defendant has been set aside or reversed.^ Though the suit against the garnishee always is auxiliary, the proceeding against the garnished property or credit is not always auxiliary. "When the attachment debtor is not served and not in court, and is notified only by publication, the prin- cipal suit is the proceeding in rem; and if nothing has been attached otherwise than in the garnishee's hands, tlie process against what is garnished is the principal suit. Curiously- enough, in such case, the personal suit against the garnishee becomes auxiliary to that against the thing in his hands. Should the debtor appear at a late stage of the case, he would defend against the attachment of his property or interest in the hands of another, while the garnishee would evidently occupy a secondary place, though his relation would not be changed. It is apparent (whether he afterwards appear or not) that the court's jurisdiction depends upon something having been seized when no defendant has been served. And, if nothing has been attached except in the garnishee's hands, it is such attachment that has given the court jurisdiction; and, without it, no suit could be maintained against the gar- nishee. § 4Y5. The suit lu/pothetical. — The suit against the gar- nishee is hypothetical. The right of action depends upon the right of the plaintiff in the main suit. Jf the plaintiff is the creditor of the principal defendant, and has a right of action against the garnishee, he may step into the shoes of the prin- cipal defendant and so become the creditor of the garnishee. In other words, he has no right to recover of the garnishee unless he can show that he ought to be subrogated to the right of the garnishee's creditor and empowered to sue on that creditor's right. In yet other words, the attaching cred- itor proceeds against the garnishee on the assum])tion that what is due by the latter to the plaintiff's debtor may be di- verted, under the law, to the payment of the plaintiff; and iLovejoy v. Albree, 33 Me. 414; v. Baker, 3 Ark. 509; Mattliews v. United States Ex. Co. v. Bedbury, Price, 32 Ga. 115 ; Wind wart v. Allen, 34 III. 459. Sec, to like effect. Russell 13 Md. 196 ; Fifield v. Wood, 9 la. v. Freedmen's Savings Bank. 50 Ga. 250 ; Parmenter v. Childs, 12 id. 22 ; 575. Compare Evans v. Mohn, 55 Rhode Island Ex. Bank v. Hawkins, la. 302. <5 R L 198. 6 Debs v. Dalton (Ind.), 34 N. E. 4 Gibbons v. Cherry, 53 Md. 144. 237; Woods v. Brown, 93 lud. 164; In Wisconsin, after judgment against Fee r. State, 74 id. 66; Miles v. Bu- the principal defendant in a justice's chanan, 36 id. 490; Cochuower u, court, judgment in the same amount Cochuower, 27 id. 253. may be rendered against a default- 358 GAKNISIIEE PROCEEDINGS BEFORE DISCLOSURE. [§ 502. The colirt should be even more liberal in allowing the be- lated garnishee to answer after default than in granting the privilege to an ordinary suitor defaulted, since he is a disin- terested party in the proceeding so far as any prospect of be- ing benefited is concerned, yet an interested third person so far as the .danger of being injured is concerned. Even if he has answered and denied indebtedness and pos- session of property, he may in certain circumstances be de- faulted for not answering to a replication. Even if he have no notice of such replication, he may be presumed to know whatever is of record after his first appearance, when the suit is separate or in a different court from that of the principal one, in which he ought not to be expected to follow the laby- rinths of a litigation in which he is not an interested party^ without notice. § 502. Curiously enough, the ancillary proceeding is essen- tial to the existence of the principal action when the suit is. upon a debt npt due. Under such circumstances the latter cannot stand alone.^ No one can ordinarily sue upon a debt not due. The legislator specially authorizes that such a suit may be brought, accompanied by attachmerit, when the nec- essary grounds are laid. The dissolution of the attachment in such a suit would work the dismissal of the main action ; a result not attending such dissolution in suits upon matured obligations.- Can the attachment proceeding be properly styled " ancil- lary " in a suit dependent upon it for existence? It is in aid of execution ; and, as there can be no judgment upon the de- mand till the debt has become due and owing, the term seems proper, at least at the termination of the suit. Upon the trial of the main cause, after the maturity of the obligation, the defeat of the plaintiff would dissolve the attachment, as in any other case, though the dissolution of the attachment alone would not then defeat the main action; hence the term "an- cillary " is seen to be appropriate. 1 Gowan v. Hanson, 55 Wis. 341. 2 1^. CHAPTER XIY. ' THE GARNISHEE'S DISCLOSURE. I. Exceptions by the Garnishee §§ 503-506 II. Requisites of the Answer 507-513 III. The Answer Taken as True 514-519 IV. Defenses Stated in the Answer 520-529 V. Defense for Absent Defendant 530-533 VI. Amended Answer 533-538 VII. Traverse of the Answer 539-551 VIIL The Charging Order 552-553 I. Exceptions by the Garnishee. § 503. To tlie jurisdiction. — The garnishee may plead to the Jurisdiction, not only to relieve himself from the care of being drawn into the attachment suit, but also to protect himself against any subsequent attack by the defendant.^ Whatever would be a good reason to sustain the plea were the suit brought by the defendant would be good here, where the de- fendant's creditor is proceeding upon the defendant's right. Want of jurisdiction over the defendant would include the want of it over the garnishee, since the hitter's position is subsidiary to that of the former respecting the court's power to hear and determine ; but, beyond this, there may be other reasons wh}'- the garnishee's obligation cannot be passed upon, though the defendant's may. The defendant in court must look out for the jurisdiction so far as he is concerned ; for, should he waive all objection, he cannot afterwards hold the garnishee guilty of laches for not pleading what he might have pleaded himself. 1 Dennison v. Taj'lor, 142 111. 45 ; Montrose v. Dodson, 76 la. 173 ; Baldwin v. Ferguson, 35 111. App. Bushuell & Clark v. Allen, 48 Wis. 393 ; Bowen v. Pope, 26 id. 233 ; Na- 460 ; Harmon v. Birchard, 8 Blackf. tional Bank v. Titsworth, 73 111. 591 ; 418; Webb n Lea, 6 Yerg. 473; Rob- Wyatt's Adm'r r. Ranibo, 29 Ala. ertson v. Roberts, 1 A. K. Marshall, 510; Dew v. Bank of Ala., 9 id. 323; 247; Featherston r. Compton, 8 La. Holek V. Pheuix Ins. Co., 63 Tex. 66 ; Ann. 285. 360 garnishee's disclosuee. [§§ 504, 505. § 504. The garnishee may except to any proceeding against him which is laclying in compliance with statutory require- ments, as they must be strictly observed and are jurisdic- tional.^ He should except to the lack of affidavit, bond, etc., for his own future protection, when the defendant is not in court.^ He cannot question the summons or return after he has disclosed and tendered money to the court.^ He may except that the court has no jurisdiction over the propertjT" in his possession or the debt which he owes, on ter- ritorial grounds. The court cannot compel a foreign corpora- tion to appear within its bailiwick to make a disclosure.'' The answer, though made before the term to which the summons was returnable, is good if not excepted to.'^ § 505. To interrogatories. — Exceptions to interrogatories may be taken when they are of such character that the law does not require that they should be answered. Persons interrogated respecting funds officially held which are not subject to garnishment; persons questioned about business relations of such character that neither an affirmative nor a negative reply would avail the interrogator, may except and may withhold response till the court pass upon the exception. All impertinent, disrespectful, irrelevant and illegal interrog- atories may be resisted by exception.*^ If some are right and others wrong, the former may be answered and the latter resisted. The garnishee is not bound to answer if he would 1 Iron Cliffs Co. v. Lahais, 52 Mich, gruder, 10 id. 383 ; Shivers v. Wilson, 394 ; Ford v. Dry Dock Co., 50 id. 5 Harr. & J., 130 ; Yerby v. Lack- 358 ; Gibbon v. Bryan, 3 111. App. 298 ; laud, 6 id. 446 ; Kimball v. McCom- Railroad u Todd, 11 Heisk. 549; ber, 50 Mich. 362. Greene v. Tripp, 11 R. I. 434; Smith spiourney v. Rutlege, 73 Ga. 735, V. McCutchen, 38 Mo. 415 ; McDonald '' Sliafer Iron Co. v. Circuit Judge, V. Vinette, 58 Wis. 619 ; AVells v. 88 Mich. 464. Am. Ex. Co., 55 id, 23. 5 plant v. Mutual Ins. Co. (Ga.), 19 -'Railroad v. Todd, 11 Heisk. 549: S. E. 719. Oldham v. Ledbetter, 1 How, (Miss.) 6 Rhine v. Danville, etc, R. Co., 10 43; Ford v, Hurd, 4 Sm. & M, 683; Phila. 336; Humphrey v. Warren, Ford V. Woodward, 2 id. 260 ; Wash- 45 Me, 216 ; I.yman v. Parker, 33 id, burn V. N. Y. etc. Co., 41 Vt. 50 ; 31 ; Carrique v. Sidebottom, 3 Met, Pope t". Hibernia Ins, Co., 24 Ohio St. 297; State N, Bank v. Boatner, 39 481; Clarke v. Meixsell, 29 Md. 221 ; La. Ann. 843, ,See Frizzell t;. Willard, Barr v. Perry, 3 Gill, 313 ; Bruce v. 37 Ark. 478. Cook, 6 Gill & J., 345; Stone v. Ma- §§ 50G, 507.] EEQL'ISITES OF THE ANSWER, 361 thus criminate himself ; ^ but he has been made to disclose when he has been colluding with the defendant in the fraudu- lent disposition of property.' He need not reveal privileged communications.^ ^ 500. If answers have been filed, and then further inter- rogatories propounded without leave of court, the garnishee may except that he has already answered and is not obliged to respond a second time; and then, till the court decide, he may safely be silent. If the court has already granted leave for the second propounding, it has not passed at all upon the character of the questions; and, if they are a mere repetition (either in the same or different verbiage) of those already an- swered ; or if they are objectionable for any other reason, the garnishee may yet except — not now to the right of propound- ing, but to the questions propounded. It is often of the highest importance, involving the gar- nishee's future protection, that he should resist improper and illegal inquisition. It is always the safer course to proceed under judicial orders and not to do unnecessary things which might afterwards be charged to have been voluntary disclos- ures.'* II. Requisites of the Answer. §507. How made. — The usual. way in which interrogato- ries are answered is b}'^ writing the replies to the questions in their order, signing them, swearing to them before any ])erson authorized to administer oaths, and filing them in the office of the clerk of the court whence they were issued within the legal delay.^ Where the summons is not accompanied by interrogatories, but commands the appearance of the garnishee in court, at a specified time, for oral examination, he must 1 Battles V. Simmons, 21 La. Ann. * Gould v. Meyer, 3G Ala. 565; 416: Kearney v. Nixon, 19 id. 16. Gunn v. Howell, 35 id. 141. In Ala- - Oberteuflfer v. Harwood, 6 Fed. bama demurrer is not applied to a 828 ; Neally v. Ambrose, 21 Pick. 185 ; defective writ of garnishment ; the DevoU V. Browneli, 5 id. 448 ; Bell v. practice is to plead in abatement or Kendrick, 8 N. II. 520. move to quash. Curry r. Woodward, 'Shaughnessy v. Fogg, 15 La. Ann. 50 Ala. 25S. ooO. See Comstock v. Paie, 18 La. 5 Taylor r. Kaiu, 8 Bax. 35. 479. Compare White v. Bird, 20 La. Ann. 188. 362 garnishee's disclosure. [§§ 508, 509. comply with that form of response. If there is an examina- tion after the filing of the written replies, the oral statements are taken as a part of the answer.^ § 508. In some states (as in Oregon) the sheriff takes the certified answer of the garnishee, which is filed and held true, unless the plaintiff have the garnishee ordered to appear in court for examination.^ Whether giving his answer to the serving officer or responding in court, the garnishee must dis- close personally — not by proxy ; ^ a merchant cannot have his clerk answer for him. Any member of a garnished firm may answer for it.^ A general agent of a foreign corporation may answer for it if authorized to receive service of process in its behalf.^ The officer answering for a corporation need not be the one on wliom tlie writ or list of interrogatories was served.* Answer cannot be made by the administrator of one sum- moned as a o-arnishee who has died without disclosino^.'^ § 509. The answer must be responsive to the interrogatories* must be categorical when the questions so require and the facts will so admit, and may be accompanied with such ex- planation as is necessary. It must be impartial as between the plaintiff and defendant, free from argumentative state- ments; it must be such as the garnishee could rightly be held to in case of a subsequent suit by his creditor upon his final discharge from the garnishment, and such as would protect him from repayment in case he should be held liable to the garnishment. It must be expressed in intelligible language, but technical nicety is not essential. Calling a hond a note 1 Wilson V. Wagar, 26 Mich. 452 ; 132 ; Anderson v. Wanzer, 5 How. Campau v. Traub, 27 id. 215. In (Miss.) 587. Iowa there can be no examination of ^ Lorraan v. Plioenix Ins. Co., 33 tlie garnishee unless it is directed by Mich. 65. He must swear upon his the court. 3 la. Code, 4$ 2982 : El- personal knowledge. .Plant v. Mutual wood V. Crowley, 64 la. 68. An order Ins. Co. (Ga.), 19 S. E. 719 ; Sprinz v. for examination may be revoked Vannuchi, 80 Ga. 774; Martin v. when it is shown, by a prior decision. Lamb, 77 id. 256 ; Stancel v. Puryear, that the garnishee is not indebted to 58 id. 445 ; Bryan v. Ponder, 23 id. 482. the defendant. Hong Kong, etc. v. ^ Duke v. Locomotive Works, 11 Campbell, 58 Hun, 610. R. L 599. - Batchellor v. Richardson, 17 Oreg. ^ Brecht v. Corby, 7 Mo. App. 300; 334, Tate v. Morehead, 65 N. C. 681. 3 Cornell r. Payne, 115 111. 63. » Cullers v. City Bank (Tex. Civ. * Dupierns r. Hallisay, 27 La. Ann. App.), 27 S. W. 900. §§ 5iU, 511.] REQUISITES OF THE ANSWER. 363 was held immaterial.' It must be candid: a garnishee asking equity must show himself free from fault.- § 510. Knowledge, hearsay, etc. — The answer should disclose all necessary facts, within the knowledge of the garnishee, elicited b}' the interrogatories.'' It is not confined to personal knowledge, but information received from others should be dis- closed — even hearsay is admissible.^ It may be based on be- lief rather than perfect knowledge.' It may be a statement of facts contained in a deed or other legal instrument.*' Though the garnishee, indebted under a written contract, has no right to qualify it by statements of oral modifications between himself and the defendant,^ when otherwise obligated he may explain, qualify and refer to papers in his answer, if necessary,^ and may attach papers subject to the court's discretion as to the papers attached.^ § 511. If the garnishee does not know a matter about which he is interrogated, he should frankly say so. Such an answer (without further action and proof on the part of the plaintiff) will effectuate his discharge.'" It has been held that the omission of the initial of the de- fendant's middle name in the garnishment process justifies the garnishee in not acknowledging liability to him, unless the garnishee knows that the defendant is identical with the per- son misnamed in the process.'' 1 Ashby V. Watson, 9 Mo. 235. Ormsby v. Anson. 21 Me. 23 ; Minchin '■^ Atlantic Ins. Co. r. Wilson, 5 R. I. v. Moore, 11 Mass. 90; Roquest v. 479. Steamer, 18 La. Ann. 210. s Davis Lumber Co. v. Bank, 84 ^ Stackpole v. Newman, 4 Mass. 85. Wis. 1 : Lusk v. Galloway. 52 id. 164. i" Crisp v. Fort Wayne, etc. R Co., ■* Crisp V. Fort Wayne, etc. R. Co., supra; Sexton v. Amos, supra; Lyon 98 Mich. 648 ; Drake v. Railway Co., v. Kueeland, 58 Micl). 570 ; Weirich 69 id. 168 ; Sexton v. Amos, 39 id. v. Scribner, 44 id. 73 ; Spears v. Chap- 695. man, 43 id. 541 : Hackley v. Kanitz. 5 Sexton V. Amos, 39 Mich. 695; 39 id. 398; Townsend v. Circuit Clinton Bank v. Bright, 126 Mass. Judge, id. 407; Hewitt v. Lumber 535 ; Crossman v. Crossman. 21 Pick. Co., 38 id. 701 ; Lorman v. Insurance 21 ; Bostwick v. Bass, 99 ]\Iass. 469; Co., 33 id. 65. See, as to disclosure in Fay V. Sears, 111 id. 154; Shaw v. justices' courts in Michigan. Souther- Bunker, 2 Met 376 ; Laughran v. land v. Burrill, 83 Mich. 13 ; Whit- Kelly, 8 Cush. 199. See Smith v. worth v. Railroad (Mich.), 45 N. W. Chicago, etc. R R Co., 60 la. 312. 500. See, also, Eddy v. Providence, « Allen V. Hazen, 26 Mich. 142. etc., 15 R L 7. 7 Field V. Watkins, 5 Ark. 672. ^ German N. Bank v. National 8 Bell V. Jones, 17 N. H. 307; State Bank, 3 Colo. App. 17. As 304 garnishee's disclosuee. [§§ 512, 513. § 512. Evasive resj)onse. — Doubtful, ambiguous, misleading answers are construed against the garnishee.^ The rule works hardship in many instances, but what else is the court to do? The garnishee has had his opportunity of denying liability ; has had his time for collecting the facts and for maturing his responses; has had the benefit of counsel if he chose to avail himself of it; and if, after all, he has innocently or otherwise rendered himself chargeable by ambiguous statements, the court may not always come to his relief and deprive the plaintiff of the means of making his money. Construed against himself, the answers of the garnishee must not yet be strained or distorted to his prejudice, though somewhat ambiguous; they should receive fair dealing at the hands of the court; and if the garnishee's error is one of law, the court should not hold him accountable. Discrepancies may be reconciled by a comprehensive view of the answer as a whole, l^o technical nicety should be permitted to entrap the honest holder of defendant's property or credit into such position as would render him doubly liable. § 513. If his answer, though not full, is not wilfully evasive, and no error is assigned, the court may give it effect,^ or may require a more specific disclosure.^ If such disclosure is or- to uames and initials, see kindred Ark. 241 ; Fretvvell v. Laffoon, 77 cases cited by the court. Button v. Mo. 26 ; Sebor v. Armstrong, 4 Mass. Simmons, 65 Me. 583; Terry r. Sis- 206; Toothaker u Allen, 41 Me. 324; son, 125 Mass. 560; Bowen r. Mul- Scott n Ray, 18 Pick. 360; Graves n ford, 10 N. J. L. 230 ; Hutchinson's Walker, 21 id. 160 ; Shearer v. Handy, Appeal, 92 Pa. St. 186 ; Wood v. Rey- 22 id. 417 ; Hart v. Dahlgreen, 16 La. nolds, 7 Watts & S. 406; Fewlass v. 559. See Gordon v. Coolidge. 1 Sum. Abbott, 28 Mich. 270 ; Tweedy v. Jar- 537. Compare Hackley v. Kanitz, 39 vis, 27 Ct. 42 ; Perkins v. McDowell Mich. 398. (Wyo.), 23 P. 71. 2 Fi,st N. Bank v. Robertson, 3 Tex. 1 Brainard v. Shannon, 60 Me. 342 ; Civ. App. 150. See Railway Co. v. Grever v. Culver, 84 Wis. 295 ; Far- Rollins, 80 Tex. 579 ; Insurance Co. rell V. Hennesy, 21 id. 639 ; Miller v. v. Friedman, 74 id. 56 ; Bowers v. Larson, 17 id. 624 ; Sexton v. Rhames, Insurance Co., 65 id. 51. 13 id. 99: Dawson V. Maria, 15 Greg. -^ Little v. Nelson, !! Miss. 672; 556; Parker r. Wilson, 61 Vt. 116; People v. Cass Circuit Judge, 39 Reinhart v. Soap Co., 33 Mo. App. 24 ; Mich. 407 ; Hamburger v. Corr (Pa.), Keel V. Ogden, 5 Mon. 362 ; Sampson 27 A. 680. While exceptions to the V. Hyde, 16 N. H. 492; Parker v. court's order (charging the garnishee) Page, 38 Cal. 532 ; Kelly v. Bowman, are pending, he cannot add to his 12 Pick. 383; Scales n Swan. 9 Por- disclosure. American Button-hole ter, 163; Ricliardsou v. White, 19 Co. u Burgess, 75 Me. 52. § 514.] AXSWEK TAKEN AS TKUE. 305 (lerecl to be made in open court, the garnishee is entitled to reasonable notice ; ^ especially if he is to be recalled from a place out of his county.- In Texas the garnishee must be ex- amined in his own county.^ If no objection has been made to the answer, it is not to be treated afterwards as irresponsive and as if theL.-G icjJ been no answer.* III. The Ansavee Taken as True. §514. Presumahhj true. — The answers are to be deemed true,^ unless controverted successfully by the plaintiff upon traverse, whether they are made to interrogatories filed in the main attachment suit, or in an auxiliary proceeding or sch'e facias suit. In either case, if the}" are such as to war- rant the discharge of the garnishee, he cannot be held liable, though the plaintiff may have his remedy afterwards against him in damages if they are subsequently found to have been false, and the plaintiff has suffered loss in consequence.^ It has been held that new matter, not directly responsive to the interroiratories, will be taken as tr-ue when not controverted.^ If the garnishee is a debtor upon a note not negotiable Avhich he believes, upon information, to have been assigned, so that the transferee has an equitable right to collect it for his own use, though in the name of the payee, the answer so stating would be sufficient to discharge the garnishee — the maker of the note.^ It would be manifestly unjust to require that the gar- 1 Cockfield V. Tourres, 24 La. Ann. (Ind. App.), 31 N. E. 474 ; Reinhart v. 168. Empire Soap Co., 33 Mo. App. 24; - Columbus Ins. Co. v. Hirsh, 61 Eonan v. Dewes, 17 id. 306 ; Chicago, Miss. 74. etc. R. Co. v. Blogden, 33 111. App. 3 Cohn V. Tillman, 66 Tex. 98. 254. The garnishee is not subject to * Taylor v. Trust Co. (Miss.), 15 So. cross-examination. Emery v. Bid- 121; Little v. Nelson, 61 Miss. 672 ; well, 140 Mass. 271. Insurance Co. v. Hirsh, id. 74. «Laughran r. Kelly, 8 Cush. 199; f" Wildv.f>r V. Ferguson, 42 Minn. Carpenter r. Gay, 12 R. I. 306. 112, Vanderhoof v. McAffee, 41 id. 'JHolton v. Southern Pac. R Co., 50 498 Lindenthal r. Burke, 2 Idaho, Mo. 151 ; Thompson v. Fisehesser, 45 535 ; Choate v. Blackford. 26 111. App. Ga. 369. 656; Manowsky v. Conroy, 33 id. 8 Clinton N. Bank v. Bright. 126 141; Lockett r. Rumbaugh, 45 Fed. Mass. 535; Fay r. Sears, 111 id. 154; 27; Mason r. Beebee, 44 id. 556 : God- Kingman v. Perkins, 105 id. Ill; dard V. Guittar, 80 la. 129; Henry r. Macomber v. Doane, 2 Allen, 541; Blew, 43 La. Ann. 476; ^YileK v. Lee Ta\lor v. Collins, 5 Gray. 50 (note); 366 garnishee's disclosuee. [§§ 515, 516. nishee, under such circumstances, should state the transfer as a fact within his own personal knowledge. ISTot being a party to the assignment, it cannot be assumed that he has such knowledge. § 515. He knows that he is indebted to some one, and he might be questioned closely with reference to his information concerning the transfer; but with the sworn statement unini- peached that he does not know who is the holder of the note, believes it is not the original payee, and has been so credibly informed, he cannot be charged ; for the facts which he states from such information and belief are to be considered as true, like those stated from personal knowledge.^ But the oral promises of the drawee of a bill of exchange cannot defeat garnishment served on him by creditors of the drawer, in a suit against the latter.^ §516. Statement of fraud, etc. — If the garnishee, whether in reply to interrogatories filed in the main attachment pro- ceeding or in a scire facias proceeding ancillary thereto, states that he was induced by representations fraudulently made to him by the principal defendant to enter into a contract, but that such contract was void by reason of such fraud, and that he, the garnishee, is not indebted to the defendant, such an- swer, being not traversed and disproved, should operate the discharge of the garnishee.* Should the garnishee admit tlie validity of a contract with the attachment defendant, but aver the violation of it by the latter, and answer that by reason of such violation nothing is due to the defendant, the answer must be taken as true, though it may admit that there are funds in the garnishee's hands. Denying that he owes any debt which the defendant can enforce, the garnishee is not charcreable. Where the defendant was a contractor, and could have had a sum due him on the contract had he performed his ]mrt, but who abandoned the contract, and the other party Foster v. Sinkler, 4 Mass. 450 ; Phipps wick v. Bass, 99 id. 469 ; Shaw v. V. Reiley, 15 Oreg. 494 Even when Bunker, 2 Met. 376; Schafer v. Viz- an adverse claimant has appeared, a ena, 30 Minn. 387. trustee's answer upon information - Baer v. English, 84 Ga. 403. and belief must be taken as true and » Doj^le v. Gray, 110 Mass. 206 ; Fay conclusive, in Massachusetts. Clinton n Sears, 111 id. 154; Bostwick v. Bank v. Bright, 126 Mass. 535. Bass, 99 id. 469. 1 Fay V. Sears, 111 Mass. 154; Bost- §§ 517, 518.] ANSWER TAKEX AS TRUE. 367 was obliged to pay others for the work he should have done, such other person, summoned as garnishee, is not liable after answering with a statement of the facts.^ One receiving and keeping money paid to him under a void order cannot dispute the legality of the order. This principle has been applied togarnishees.- § 517. Further ])roof. — Where it is required that the an- swers must be taken as true, and the attaching creditor is inhibited from traversing them, his right to further proof is confined to such additional facts as have not been stated, ad- mitted or denied by the answer.^ They must be facts not contradictory of the answer, where such rule prevails, but they may so change the legal import of it as to result in the holdino^ of the garnishee liable. AVhere the attaching creditor is at libert}^ to dispute the answer, and contests a statement from information and belief that the debt, which the garnishee admits owing, has been assigned, or that property w4iich he holds has been sold, the supposed assignee or vendee may be made a party, in Mis- souri.^ § 518. If the garnishee has answered a question categor- ically, the attachment plaintiff cannot have the interrogatory taken for confessed.^ The plaintiff should not take a rule for such purpose under such circumstances; but if the fact sought to be elicited may be reached by additional interrogatories, he may be permitted to propound them without traversing the answers to the first.^ He has no need to take further action when liability may be inferred from the answer.' But if neither the original nor the subsequent disclosure shows that 1 Doyle V. Gray, 110 Mass. 206; stances is directed to make an order Mason v. Ambler, 6 Allen, 124 upon the supposed vendee or assignee 2 Jones V. Langhorne (Colo.), 34 P. to appear and make claim. McKit- 997 ; Arthur v. Israel, 15 Colo. 152 ; • trick v. Clemens, 52 Mo. 160. Water Co. v. Middaugh, 12 id. 434. suUmeyeri". Ehrmann, 24 La. Ann. SBostwick V. Bass, 99 Mass. 469. 32. The qualification in the paragraphs ^ Ober v. Matthews. 24 La. Ann. 90. above, " unless traversed,"' is iuappli- ^Cornish v. Russell, 32 Neb. 397; cable of course where contradiction Donnelly v. O'Connor, 22 Minn. 309 ; of the answer is not allowed. Swearingen v. Wilson, 2 Tex. Civ. *Held in Missouri, under statute, App. 157; Moursund i\ Priess, 84 Tex. that the court, under such circum- 554. 368 garnishee's disclosuke. [§§ 510, 520. the garnishee has property of the defendant or is indebted to him, there can be no order in favor of the attaching creditor,^ who cannot deny the truth of the answer when he does not traverse, and cannot recover beyond the admitted liabihty.- §519. Promissory note. — The maker of an overdue nego- tiable note payable on demand, who answers as garnishee that he does not know who is the holder, nor who was the holder at the date of the summons, but who makes no statement of any transfer or indorsement, has been held liable, though the result would have been otherwise had the note been payable on time and not overdue. x\n indorsee, under such circum- stances, should have given the maker notice of the indorse- ment ; and, in the absence of such notice, the charging of the garnishee and the payment by him under the order will be a good defense against any subsequent suit by the indorser against the maker.^ But if the maker, knowing of the exist- ence of an indorsee, should pay him even after having been summoned as garnishee, and should so state in his answer, he ought to be discharged, since he was not, under such circum- stances, the debtor of the attachment defendant who was the original payee.^ It might be a matter of prudence for the maker under such circumstances to withhold payment to the indorsee till after his examination, but certainly prudence would not require that he should subject himself to liability. TV. Defenses Stated in the Answer. V § 520. May plead as if directly sued. — The garnishee, deny- ing indebtedness, may set up whatever grounds he would have been entitled to plead had the action been directly brought against him by the person sued in the attachment proceedings.^ They must be grounds wdiich, at the time of iKane v. Clough, 36 Mrch. 436; (under statute); Knights r. Paul, 11 Hewitt V. Wagar Lumber Co., 38 id. Gray, 225. See Gatchell v. Foster 701. (Ala.), 10 So. 434. 2 Newell V. Blair, 7 Mich. 103; ^Kauffman v. Jacobs, 49 la. 433. Thomas v. Sprague, 12 id. 120; Pi- Garnishee not liable on draft not quet V. Swan, 4 Mason, 460; Marks payable in the state. Chad bourn u V. Reinberg, 16 La. Ann. 348; Hib- Gilman, 63 N. H. 353. bard v. Everett, 65 la, 372 ; Morse v. & Sheedy v. Second N. Bank, 62 Mo. Marshall, 22 id. 290. 17; Schuler v. Israel, 120 U. S. 506; 3 Scott V. Hawkins, 99 Mass. 550 McLaughlin v. Swann, 18 How. 217. § 521.] DEFENSES STATED IN ANSWER. 369 the service of the garnishment, he could have set up against such defendant. If then indebted to him upon contract, the garnishee and defendant could not thereafter rescind the con- tract so as to cut the attaching creditor off from the benefit of the garnishment and enable the garnishee to plead such rescinding of contract by way of defense.^ § 521. Garnishees having pleaded non assumpsit for the defendants and nulla hona for themselves, the defendants appeared and confessed judgment. The garnishees then ])leaded that a receiver had been appointed for the defend- ants, and that the indebtedness of the garnishees was there- fore to the receiver; but the plaintiff successfull}'^ demurred.' The recognition by a garnishee of the validity of an assign- ment proves the relation of debtor and creditor between him and the assignor.^ The garnishee may plead prescription * or an3'thing that would be a good defense against the alleged indebtedness were the suit directly brought by his own creditor. He may sei up anything which his defense requires.^ He may plead want of consideration.^ He may show no property and no funds by a general statement of account with the defendant.' He may answer that he has obligated himself to pay other creditors of the defendant to the extent of his liability.** The garnishee should plead prior garnishment if he wishes to avail himself of it to prevent being made to pay twice.'' So if goods of the defendant, intrusted to him, have been taken from him 1 Fowler v. Williamson, 52 Ala. 16. the defendant's creditors before he - Bartlett v. Wilbur, 53 Md. 485. was summoned, if he has not ac- 3 Id. cepted the order. Rice v. Dudley, 34 * Benton v. Lindell, 10 Mo. 557 ; Mo. App. 383. James v. Fellowes, 20 La. Ann. 116. » Schuerman v. Foster, 82 Wis. 319 ; 5 Varian v. Association, 156 Mass. 1. Bullard y. Hicks, 17 VL 198; Smith 6 Ball V. Citizens' Bank, 39 Ind. 364 ; v. Stratton, 56 id. 362 ; Fisher v. Will- Sheldon V. Simonds, Wright, 724 ; iams, id. 358. See Hirth v. Pfeifle. 42 Closer V. Maberry, 7 Watts, 12. Midi. 31. In an action on contract ' First N. Bank v. Robertson, 3 the garnishment of the defendant in Tex. Civ. App. 150; Rutherford v. another suit will not prevent the Fullerton, 89 Ga. 353 ; Henry v. Bew, plaintiff from obtaining a verdict 43 La. Ann. 476. Creed v. Creed (Mass.), 36 N. E. 749. 8 Beardsley v. Beardsley, 23 111. See Guilford v. Reeves (Ala.), 15 So. App. 317. But he will be charged, 661. tiiough he received an order to pay 24 370 garnishee's disclosure. [§ 522. by direct attachment in another case.^ Whatever his pleas in defense they must be consistent^ and lawful.^ But if the plea should involve the liquidation of accounts between him and the defendant, it would seem that the investigation ought not to be had in the attachment proceeding, and that the gar- nishment should not be sustained. Proof of set-off in such proceeding would not be adduced contradictorily with the defendant; and he would not be bound by the statements of the garnishee nor b}^ the judicial finding thereon should he afterwards sue for settlement. Of course the defendant is not put to the worse by any acknowledgment of indebtedness to him by the garnishee, nor can he be by any denial thereof; but the investigation of accounts, with one of the parties thereto left out of the inquiry, seems not advisable. How- ever, if the garnishee answers that he owes the defendant a stated sum on account, the attaching creditor may hold him to it. If, on the other hand, he should honestly state that he believes that he is indebted to the defendant on account but that he cannot approximate the amount without a settlement, he ought to be discharged. § 522. Suppose the garnishee should answer that he is in- debted now to the defendant but that he holds the note of the defendant to an amount equal to the debt, though the note is not yet due; ought he be ordered to pay into court for the benefit of the attaching creditor?* He ought not to be put into a worse position by the summons than he occu- pied before its service ; he ought not be obliged thus to give a fellow creditor a preference over himself, it may plausibly be argued. But the attaching creditor's claim, if already due and owing, is payable now, while the note held by the gar- nishee is not. If the note has some years yet to run, why may not the creditor make the garnishee pay now what the defendant is competent to make him pay now in the absence 1 Ronan v. Dewes, 17 Mo. App. 306 ; tect himself. Lynde v. Watson, 52 Royer v. Fleming, 58 Mo. 438. Vt. 648. If he holds an insolvent de- 2 First Baptist Church v. Hyde, 40 fendant's immature note, he should 111. 150. no!; be charged for what he owes the 3 Thayer v. Partridge, 47 Vt 423. defendant, but may retain it to pro- * In Vermont, under statute, held tect himself. Schuler v. Israel, 12l> that he could retain enough to pro- U. S. 506, §§ 523, 524.] DEFENSES STATED IN ANSWER. 371 of the attachment? In case the creditor's claim is not yet due, it would seem that he ought to be given no advantage over the garnishee ; nor ought he have an}'-, if the note of the defendant to the garnishee is very nearly due; nor when the order to pay into court would work great hardship ; but, unless such or like circumstances are made to appear, there seems to be no protection for the garnishee in the absence of statute exemption in such case. § 523. The debtor's non-residency and insolvency, when the garnishee owes him a definite sum yet has a good claim for unliquidated damages for breach of contract, afford groyind for the exercise of equitable jurisdiction to stay an order at law charging the garnishee till the damages due him be ascer- tained and set off against the definite sum he owes.' The garnishment of the principal defendant's debtor is no reason why he may not intervene when he has an interest to be served by his doing so, and none why he may not bring a separate attachment suit if the attachment defendant really owes him, and there is statutory ground for the remedy.' If an attorney holds a note and mortgage of the defendant on which he claims a fee and a lien, a receiver may be ap- pointed to collect the note and mortgage under general stat- utory authority to make any proper orders.^ § 524. It must appear from the answer of the garnishee (or others proofs where allowable) that he is I'able, or he should be discharged.* One who has paid as garnishee without disclosing the fact, 1 North Chicago Rolling Mill Co. v. * Richards v. Stephenson, 99 ]Mass. St Louis Ore, etc. Co., 152 U. S. 596, 311 ; Laughran v. Kelly, 8 Cush. 199; 14 Sup. Ct. Reporter, 710, reversing Porter v. Stevens, 9 id. 530 ; Clin- 30 Fed. 308. ton Nat. Bank v. Bright, 126 Mass. 2 Rodrigues v. Trevino, 54 Tex. 198 ; 535 ; Regan v. Pac. R. R Co.; 21 Mo. Adour V. Seeligson & Co., id. 594; 34; Cairo, etc. R. R Co. v. Killen- Allen V. Hall, 5 Met (Mass.) 263 ; berg, 82 III. 275 ; Williams v. Housel, Lewis V. Harvvood, 28 Minn. 428; 2 Ln. 154 ; Smith v. Clarke, 9 id. 241 ; Coone V. Brauu. 23 id. 239; Allen v. Farwell v. Howard, 26 id. 381; Dris- Megguire, 15 Mass. 490; Peck u. Strat- coll v. Hoyt 11 Gray, 404; Fay v. ton, 118 id. 406; Bailey v. Ross, 20 Sears, 111 Mass. 154; Lorman i-. Phoe- N. H. 302 ; Romagosa v. Nodal, 12 La. nix Ins. Co., 33 Mich. 65 ; Hackley v. Ann. 341. Kauitz, 39 id. 398; Sexton v. Amos, 3 Gary v. Brown, 33 111. App. 435. id. 695. 372 garnishee's disclosuke. [§ 525. within his knowledge, that the debt had been assigned, may be made to pay again to the assignee.^ A garnishee should not be discharged because he has been notified of an assignment and has disclosed that fact, if the good faith of the assignment is questioned. In such case the assignee may and should be made a party, in Rhode Island.- In "Wisconsin third persons are cited and made parties when the garnishee discloses that what he has or owes is claimed by them ; ^ but when he had answered that property which he held lelonged to third persons, he could not therefore have them made parties, as the disclosure did not bring them within the statute.* § 525. Offset. — He may plead set-off,^ but not as adminis- trator when garnished in his private capacity ; ^ nor as joint creditor of the principal defendant when his co-creditor is not garnished;^ nor as a fiduciary; ^ nor, in some states, as a merely equitable claimant.^ It has been held that the claim pleaded by the garnishee as set-off must have arisen upon contract,^** but there are different shades of opinion.'^ It may have arisen after the garnishee was summoned, if upon con- tract made before, in some states.'^ 1 Wardle v. Briggs, 131 Mass. 518 ; Nickerson v. Cliase, 123 id. 296 ; Whipple V. Robbins, 97 id. 107 ; But- Wheeler v. Emerson, 45 N. H. 526 ; ler V. Mullen, 100 id. 453 ; Randall v. Beach v. Viles, 2 Pet. 675 ; Smith v. Way, 111 id. 506 ; Wilkenson v. Hall, Stearns, 19 Pick. 20 ; Nesbitt v. Camp- 6 Gray, 568 ; Millekin v. Loring, 37 bell. 5 Neb. 429. Me. 408 ; Colvin v. Rich, 3 Porter, 6 Woodward v. Tupper, 58 N. H. 175 ; Stockton v. Hall, Hardin, 160 ; 577. Johns V. Field, 5 Ala. 484 ; Marsh v. 7 Gray v. Badgett, 5 Ark. 16; Wells Davis, 24 Vt. 363; Seward v. Heflin, v. Mace, 17 Vt. 503; Blanchard u 20 id. 144 ; Prescott v. Hull, 17 Johns. Cole, 8 La. 160 ; Norcross v. Benton, 284; Greentree v. Rosenstock, 61 N. 38 Pa. St. 217. Y. 583; Bunker v. Gilmore, 40 Me. ^Fox v. Reed, 3 Grant, 81. 88. See Landry v. Chayret, 58 N. H. 9 Loftin v. Shackleford, 17 Ala. 455 ; 89; Chesley v. Coombs, id. 142; Col- Weller v. AVeller, 18 Vt. 55; Roy v. man v. Scott, 27 Neb. 77 ; Davis Lum- Tim, 103 Pa. St. 115. ber Co. v. Bank, 84 Wis. 1. lO Johnson v. Howard, 41 Vt. 122 ; 2Hanaford v. Hawkins (R. I), 28 Hibbard v. Clark, 56 N. H. 155. A. 605; Pub, Stat. R. I, c. 204, § 34; n Perry v. Washburn, 20 Cal. 318; Railroad Co. v. Payne, 29 Gratt. 502. Shaw v. Peckett. 26 Vt. 482 ; Pierce v. 3 Wis. Rev. Stat., § 2767. Boston, 3 Met. 520 ; Camden v. Allen, 4 Davis Lumber Co. v. Bank, 84 2 Dutch. 398 ; Mayhew v. Davis, 4 Wis. 1. McLean, 213. 5 Lannan v. Walter, 149 Mass. 14 ; i- Boston, etc. R. Co. v. Oliver, 32 § 526.] , DEFENSES STATED IN ANSWER. 373 • A garnishee may set off a debt due him on breach of con- tract by defendant, though it be secured to him by bond.^ The garnishee may set off the amount of a claim against the defendant, not negotiable, which he has assigned before being summoned — the assignee agreeing to hold the claim for the benefit of others.^ If he could plead such claim as a set-off in a suit by the attachment defendant, he can plead it as gar- nishee; and he is chargeable for the balance of debt only.^ But he cannot offset, against a fund liable to attachment in his hands, an account assigned to him against the defendant when the latter has not assented to the assignment and agreed to pay the garnishee.^ If his liability to the defendant de- ])ends upon settlements first to be made with others, and cannot be previously ascertained, he should be discharged.^ If it is upon notes not due, judgment may be suspended till the debt, acknowledged in the answer, comes to maturity.^ If he denies indebtedness on a note made by him to a hus- band by mistake, as his debt was to the wife, he cannot be charged in a suit against the husband." But when a note had been given to the wife, and transferred to the husband, the garnishee who denied indebtedness and failecl to state the transfer was charo^ed in a suit against the husband.^ § 526. Joint contractors, summoned as garnishees, may set off in the attachment proceedings their separate claims against the defendant.^ Offset pleaded in answer against several N. H. 172; Boardman v. Cusliing, 13 2 Nutter v. Framingham & Lo%veIl id. 105 ; Boston Type Co. v. Morti- E. R. Co. & Trustee, 132 Mass. 427. mer, 7 Pick. 166; Farmers' & Mer- 3 Hathaway v. Russell, 16 Mass. chants' Bank v. Franklin Bank, 31 473 ; Allen v. Hall, 5 Met. 263 ; Green Md. 404. Contra, Self v. Kirkland, v. Nelson, 12 id, 567; Boston Loan 24 Ala. 275 ; Edwards v. Delaplaine, and Trust Co. v. Organ (Kau.), 36 P. 2 Harr. 322 ; Dyer v. McHenry, 13 la. 733. 527; Parsons u. Root, 41 Ct. 161; ^ Soule r. Ice Co., 85 Me. 166 ; Stev- Pennell v. Grubb, 13 Pa. St. 552; ens r. Lunt, 19 Me. 70. Ingalls V. Dennett, 6 Me. 79 ; Sea- ^ Durling v. Peck, 41 Minn. 317. mon V. Bank, 4 W. Va. 305 ; Taylor See Carter v. Webster. 65 N. H. 17. V. Gardner, 2 Wash. C. C. 488 ; Siev- « Hobson v. Hill, 87 Mich. 187. ers V. Woodburn, etc., 43 ^Mich. 275. "^Gordin r. Moore, 62 Miss. 493. 1 Johnson v. Geneva Pub. Co. (Mo.), ^ Dodds v. Gregory. 61 Miss. 351. 26 S. W. 676; Barnes r. McMuIlin.s, "Hathaway r. Russell, 16 Mass. 7s Mo. 260; Doyle v. Gray, 110 Mass. 473; IManuf. Bank v. Osgood, 12 Me. 206. 117 ; Brown v. Warren, 43 X. H. 430, 314: garnishee's disclosure. [§§ 527-529. plaintiffs will not be allowed after the garnishee, v/ithout amending his answer, has admitted on trial that the set-off is only against some of the plaintiffs.^ If there is admission of indebtedness in the answer, qualified by the statement that the defendant owes the garnishee a greater sum, the attach- ing creditor, opposing the allowance of the set-off on the ground that it is not yet due, has the burden of proof.- The garnishee cannot successfully plead a prescribed claim as offset.' § 537. Stating claims of tliird 2>ersons or himself. — The gar- nishee, for his own protection, should defend against any , illegal attempt to make him pay into court what belongs to some person other than the defendant.* Though the case might be such that, in case of subsequent recovery from him by the wronged owner, he could make the plaintiff reimburse him,'^ yet his right to do so will depend upon his proper dis- closure of the facts when answering as garnishee. AVhen he discloses that the property he holds is claimed by a third person, tlie latter must be summoned and made a party, in Alabama, before the garnishee can be charged." Ordinarily, if the answer is that the property (or fund or credit sought to be reached) belongs to a third person, the garnishment is discharged.^ § 528. An issue, between the attachment defendant and an intervening claimant, of the property attached in the gar- nishee's hands, should be tried on evidence adduced by the parties, as in ordinary contests about right of property.^ The intervention may be to claim money attached in the gar- nishee's hands,® when it should be tried as ordinarily between contending parties. The intervention, however, comes too late when the garnishee has been charged and the sale ordered."* § 529. If, in defending, the garnishee should claim to be the owner of the thing sought to be subjected to the process of 1 Story V. Kemp, 55 Ga. 276, "Cram v. Shackleton, 64 N. H. 44. 2 Cuney v. National Bank of Au- ^ Leslej' v. Godfrey (Minn.), 56 gusta, 53 Ga. 28, N. W. 818; Smith v. Barclay (Minn.), 3 Wadleigh v. Jordan, 74 Me. 483. 55 N. W. 827. 4 Pounds V. Hamner, 57 Ala. 842. i^Kean v. Doerner, 62 Md. 475. 5 Hays V. Anderson, 57 Ala. 374. lo Hey ward v. Man. Co., 97 Ala. 6 Edwards v. Levisohn, 80 Ala. 447 ; 533. Ala. Code, gg 3221, 3302-3. §§ 530, 531.] DEFENSE FOK ABSENT DEFENDANT. 375 attachment, the question is whether his right is superior to that of the attaching creditor. If he is really the owner, and so answers, and that fact is established, the creditor of the de- fendant could not maintain the garnishment. But the validity of the garnishee's title to property in his custody when he claims to be the owner cannot be adjudicated on a rule trav- ersing his answer. Such an issue can only be passed upon in a direct suit.^ He may intervene.- Defenses, involving ques- tions of law and fact, have been allowed to be made in a cir- cuit court when they had been omitted on trial before a justice court.^ Y. Defense for Absent Defendant. § 530. What slioidd le stated. — Though the garnishee is disinterested in the result of the suit between the plaintiff and the defendant, he, to protect himself, may be obliged to set up against the garnishment such defenses as the defendant would have the right to urge affirmatively against the gar- nishee in a subsequent action. He may do so though he is himself in default and charged.* If the defendant has already satisfied the attaching creditor's claim, and the fjarnishee knows that fact, he ought, for his own sake as well as that of the defendant, to urge it by way of exception or answer to the garnishment. If for any reason the creditor no longer has any claim against his former debtor, the garnishee should not, by the payment of what he owes, or the delivery of what he holds, put the defendant to trouble in regaining what he truly owns. If the answer is a denial of indebtedness to the defendant, and denial of possession of any property of his, the plaintiff, acquiescing therein, and having made no direct seizure, has no attachment suit ; and if be proceeds against the defendant, the action is only personal.' § 531. Not technical objections. — When, by reason of the absence of the defendant or other cause, the garnishee is 1 Ivens V. Ivens, 30 La. Ann. (Part « Chicago, etc. R. Co. v. Meyer, 117 I.) 249. See Larey r. Baker, 85 Ga. 087. Ind. 563. 2 Edwards v. Cosgro, 71 la. 296; < pjnyan r. Berry, 52 Ark. 130. Wynne v. State Bank, 82 Tex. 37S; 5Littlejolm v. Lewis. 32 Ark. 423; Moursund v. Priess, 84 id. 554. Leiugardt v. Deitz, 30 id. 224. 376 garnishee's disclosure. [§ 532. obliged to defend the principal suit for his own future pro- tection, he may urge whatever defense upon the merits the defendant might have urged, and he may demur or except to the action, especially on jurisdictional grounds;^ but he is not bound, in order to his own future protection, to set up merely technical obstructions and defenses. When he an- swers and is examined in the presence of the defendant he is not only relieved from the necessity of raising technical objec- tions, but he is precluded from making such points as that the sheriff's return was not properly indorsed or that the garnish- ment service was on but one of two partners.- No rigid rule can be laid down, however, as to the latitude the garnishee may take for his own protection in defending the principal suit in the absence of the defendant. Even amendable errors may be of such a character that exception to them would be of the highest importance; for, to hold him, the attachment proceedings must be valid.* But garnishees who have ad- mitted joint liability cannot afterwards complain that such liability had not been averred in the plaintiff's affidavit.* § 532. If the defendant has confessed judgment the gar- nishee cannot defend the principal suit, being fully protected against any future attack by the defendant and perfectly safe in paying into court under order.^ He should not be made a party to a feigned issue.^ As a general rule the garnishee is not bound to notice mere irregularities of procedure against the defendant; nor to de- fend the main suit when the defendant is in court or under summons ; he is not so bound when the court is vested with iBeaupre v. Keefe, 79 Wis. 436; Houston n Porter, 10 Ired. 174; Ax- Frisk V. Reigelman, 75 id. 499 ; Hea- tell v. Gibbs, 52 Mich. 640 ; Iron Cliffs ley V. Butler, 66 id, 9 ; McCloon v. Co. v. Lahais, 52 id. 394 ; Laidlaw v. Beattie, 46 Mo. 891 ; Simmons v. Mo. Morrow, 44 id, 547. R Co., 19 Mo. App, 542; Chicago, 4 QoII u Hubbell, 61 Wis. 293; Be- etc. R, Co, V. Mason, 11 111. App, 525, vier v. Dillingham, 18 id. 529, See 2 At least it was so held in Bush- Miller v. Richardson, 1 Mo, 310 ; nell V. Allen, 48 Wis. 460 — the stat- Whitney v. Munroe, 19 Me. 42, as to ute in Wisconsin requiring the sum- garnishee's liability to two persons mons in garnishment to be served on jointly when only one is sued, the principal debtor. See Mooney v. ^ Bartlett v. Wilbur, 53 Md, 485. Union Pac. R. R. Co,, 60 la. 346, cpish v. Keeney, 91 Pa. St. 138. 3 Gowan v. Hansom, 55 Wis, 341 ; See Everton v. Powell, 3 Wash. State, Pope V. Insurance Co., 24 Ohio St. 481 ; 331 ; Wash, Code, §g 385, 386. § 532.] DEFENSE FOR AnSENT DEFENDANT. jurisdiction over both, nor is he interested in doing so, since the decree of the court would protect him from a future suit for funds paid over or property delivered under judicial order to him as garnishee.^ The defendant present may defend on any ground the gar- nishee could have urged for him in his absence. In Wiscon- sin he may move to set aside the garnishment on the ground that the attaching creditor knew that he had sufficient prop- erty liable to direct attachment. This he may do, it is said, though insolvent and about to assign to creditors.^ It is held in Missouri that the garnishee cannot object that publication was irregularly made.^ He cannot successfully object to a judgment against the defendant when it does not concern himself or the jurisdiction.* He cannot object when he has denied indebtedness.^ In Wisconsin if the defendant is not served within ten days the garnishment proceeding is void ; and a subsequent gar- nishor mav have it dismissed on that ground.^ 1 Montgomery Gas Light Co. v. Merrick, 61 Ala. 534 ; Flash v. Paul, 29 id. 141: Gunn v. Howell, 35 id, 144; Thompson v. Allen, 4 Stew, & Port 184; Stebbins v. Fish, 1 Stew. 180; Parmer v. Ballard, 3 id. 326; Smith V. Chapman, 6 Port 365; Singer r.Townsend, 53 Wis. 126, 226 ; Houston V. "Wolcott, 1 la. 86 ; Strong V. Hollon, 39 Mich. 411; White v. Casey, 25 Tex. 552 ; Douglass v. Neil, 37 id. 528 ; Pierce v. Carlton, 12 III. 358 ; Allen v. Watt, 79 id. 284 ; Corn- well V. Huugate, 1 Ind. 156 ; Scott v. Hawkins, 99 Mass. 550; Knights v. Paul, 11 Gray, 225; Chambers v. Mc- Kee, 1 Hill (S. C), 229; Lindau v. Arnold, 4 Strobhart, 290 ; Cannaday V. Detrick, 63 Ind. 485 ; Foster v. Jones, 15 Mass. 185; Chamberford v. Hall, 3 McCord, 345 ; Erwin v. Heath, 50 Miss. 795 ; Benson v. Hollaway, 59 id. 358; Kellogg v. Freeman, 50 id. 157 ; Saddler v. Prairie Lodge, id. 572 Heffernan r. Grymes, 2 Leigh, 512 Atcheson v. Smith, 3 B. Mon. 502 Shealey v. Toole, 56 Ga. 210; White- head V. Henderson, 4 Sm. & M. 704 ; Matheny v. Galloway, 12 id. 475 ; St. Louis Per. Ins, Co. v. Cohen, 9 Mo. 421 ; Campbell v. Nesbitt 7 Neb. 300; Hanna v. Lauring, 10 Martin (La.). 563 ; Brode v. Firemen's Ins. Co., 8 Rob. (La.) 244; Lee v. Parmer, 18 La, 405; Wilson v. Burney, 8 Neb, 39; Delby t\ Tingle}', 9 id. 412 ; Lomer- son V. Hoffman, 4 Zab. 674 ; Bank of Northern Liberties v. Muuford, 3 Grant, 232 ; Gray v. Del. & Hudson Canal Co., 5 Abb. N. Cas. 131, 2 German American Bank v. Butler (Wis.), 58 N. W, 746; Wis, Rev. Stat, §g 2753, 2765. 3 Freeman v. Thompson. 53 Mo. 183 ; Kane v. ^IcCown, 55 id. 181 ; Hol- land V. Adair, 55 id. 40 ; Johnson v. Gage, 57 id. 160, See Newman v. Manning, 89 Ind, 422, 4 Henny i", Patt 73 la. 485. 5 Bank v. Haiman, 80 Ga. 624. 6 Globe Milling Co. v. Hansen (Wis,), 59 N. W, 132. 378 garnishee's disclosure. [§§ 533, 53 i. Yl. Amended Answer. § 533. Sufficient cause. — An answer to interrogatories may be amended by the garnishee upon sulBcient cause shown.^ Sufficient cause is the subsequent discovery of a mistake made in the the first response or tlie knowledge of some new and important fact, or even newly acquired information concern ing his rights under the law touching matters about which his answers are voluntary and will charge him if given but which he is not legally obliged to give. What would subject him to two payments may be recalled by an amended answer. What would bind him and yet was withheld in his first an- swer should be given by wa}?" of amended answer, for con- science sake. § 534. Liberal treatment. — When the right of amending is drawn into question it should be remembered that the garnishee's answer is to be more liberally treated than the pleadings of the parties to the main suit. He is no party to that, though a side contest may arise between him and the attaching creditor ; certainly he is no party in the fight be- tween the plaintiff and the defendant; he is no intervenor, nor warrantor, nor third party of any sort. He cares nothing, or should care nothing, or is legally supposed to care nothing, about the issue of the suit. If he has not told all or has told too much, why should he not be allowed to correct his state- ment as a witness is so allowed? No court should deny him the right unless he has forfeited confidence by cunning, trick- ery, prevarication and question-dodging. Suppose a witness to apply to the court for leave to correct erroneous statements in his testimony: would any tribunal, intent only upon sub- serving the ends of justice, refuse the request, if made within due time during the process of the investigation, if the witness has proved honest in the first instance but has subsequently discovered an error? Even upon the application of one of the parties to the cause, the court would be likely to allow the witness to be recalled on such a showing; how much more readily should the application of the disinterested witness himself be successful? The analogy of position between the witness and the gcxrnishee is such that the same reasons 1 Simon v. Ash, 1 Tex. Civ. App. 202 ; Soule v. Ice Co., 65 Me. 166. §§ 535, 536.] A-'TENDED ANSWEK. 37'.) apply in the one case as in the other for allowing answers to be amended, with the additional one in favor of the latter that the court should protect him from erroneously and inno- cently causing loss and injury to himself, where the first an- swers tend to wrong him in that way.^ § 535. Courfs discretion. — Courts have it in their discretion to allow amendments or not; but it is a discretion under ju- dicial duty — a discretion similiar to that which he has in deciding a cause for the one party or for the other. If the garnishee has fully done his duty, and yet has made an erro- neous statement which he prays leave to correct, it is the duty of the court to grant the prayer. In the exercise of discretion, the court may either grant or refuse an application to amend, after a rule has been taken to have the answered interrogatories taken as confessed.- But if something has happened subsequently to the original answer which renders it a matter of justice that amendment be allowed, the court should not refuse it. For instance, if the garnishee has answered that he owes on promissory notes, and after- wards learns that they had been assigned before he was gar- nished, he cannot be refused the right to amend, if otherwise he would be liable to pay twice.' Or, if he has acknowledged indebtedness to the defendant, and afterwards finds that the debt had been assigned before the service of the writ upon him, thus defeating the foreign attachment, he should be al- lowed to amend as of right.^ He may make a supplemental disclosure.^ Amendments to an answer should not be contradictory of the first disclosure when it has acknowledged liability," and they may be refused by the court when it has been evasive.^ § 536. Second application. — A second application to amend is entitled to less liberal consideration than the first, though it ought to be granted upon sufficient cause being shown. It iKlauber v. Wright, 52 Wis, 303. •» Sweet v. Read, 13 R I. 121. 2 Milliken r. Mannheimer, 49 Minn. 5 Drake v. Lake Shore, etc., 69 Mich. 521. Such application was denied as 168; Lehman v. Hudman, 85 Ala, too late after the garnishee had ex- 135 ; Carter v. Bush, 79 Tex. 29. cepted to a rule to have his first an- 6pi(_.kiei- ^.^ naiue%', 4 Heisk. 335; swer taken pro confesso. Hennen v. Thomas v. Fuller. 26 La. Ann. 625. Forget, 27 La. Ann. 381. 'Tapp v. Green, 22 La. Ann. 42; 3 Lewis V. Dunlop, 57 Miss. 130, Davis v. Oakford, 11 id. 379. oSO garnishee's disclosuue. [§ 537. is impossible to fix a limit till reasons for amending have been exhausted, except that the reasons should be new ones, and not readily knowable before the previous reply or replies. Common sense will dictate the proper course in every case. § 537. J^vidence.^The effect to be given to the answer is an important topic. Here is a disinterested third person, called into court against his will, interrogated by the plaintiff, who has made responsive answers to all such legal questions as the plaintiff chose to expound : should his statement not be. conclusive? Were he the plaintiff's witness the plaintiff could not contradict him. Whether his answers be affirmative jr negative the defendant has no interest, or right or business to contradict him. Should not his statement be conclusive upon both parties? No. He is not a witness. The plaintiff had no option to select whom he might choose to prove the fact that the defendant had money or goods or credits subject to ex- amination. The answers can have no bearing upon the ques- tions at issue in an attachment case. They have no bearing on any litigated question between plaintiff and defendant in any case or in any stage of a case. The garnishee is interro- gated because he is supposed to owe the defendant or hold property of the defendant — not because he alone knows the fact. He is summoned that he may answer and be held to pay or to deliver, under order of court, not merely to give evidence; and the facts which he divulges are not drawn out by the plaintiff contradictorily with the defendant. While the garnishee, from his own standpoint, may ask to amend erroneous statements on the same grounds that a witness might so ask, yet, from the standpoint of the plaintiff, he is not to be deemed a mere witness. His statements may there- fore be traversed by the plaintiff without infringing the rule that inhibits him from contradicting his own witness. The answers are not conclusive upon him unless he lets them stand unimpeached and uncontradicted. But he may attack them, refute them by evidence alminde, contradict them, ex- plain them, eke them out, prove the liability of the garnishee in spite of his negative replies, and hold him responsible for such judgment as he may recover in cases where the proof shows that the garnishee has goods or credits in hand of suf- ficient amount. §§ 538, 539.] TRAVERSE OF ANSWER. 381 But there are jnst bounds to collateral investigation of the facts. Courts will not let a new lawsuit be injected into the one at bar. TLvidcnce aliunde will be confined to the question of the garnishee's holding credits or property reachable by execution for the defendant's debt. § 538. Side contests. — During a contest between the attach- ing creditor and another person for funds in the hands of the garnishee they should not be paid to either contestant till the dispute has been decided.' The garnishee cannot pay them to an assignee of the defendant, at a time when proceedings are pending by the attaching creditor against such assignee, for the judicial settlement of such contest, if the garnishee has knowledge of such proceedings. A payment to the trans- feree of the defendant, under such circumstances, would be at the peril of the garnishee.^ If he is not informed of the trans- fer till after he has been summoned, he should disclose his knowledge of it in his answer.'' If knowledge of it comes after answering, he should be allowed to amend his disclosure.* If he does not amend he will be charged.^ If he has admit- ted indebtedness to a transferee who is subsequently made a party defendant, he may be charged.^ YII. Traverse of the Answer. § 539. Untraverscd ansiver final. — Traverse of the answer is necessary, if the plaintiff is unwilling to abide the disclosure, and has the means of disproving it; for the disclosure is final unless he contests it, whether it be a positive denial or an ad- mission of liability,^ or if it does not appear from the an- 1 Sailer v. Insurance Co. of North 16 Ala. 695 ; Ferine v. George, 5 id. America, 62 Ala. 221. 641 ; Wilder v. Shea, 13 Bush, 128 ; 2 Id. ; Larabee v. Knight, 69 Me. Smith v. Bruner, 23 Miss. 508 ; Flash 320. V. Morris, 27 La. Ann. 93 ; Barnes v. 3 Tabor u Van Vranken, 39 Mich. Wayland, 14 id. 791; Helme v. Pol- 793. lard, id. 306; Blanchard v. Vargas, 4 Tracy v. McGarty, 12 R. I. 168. 18 id. 486; Oakey v. Railroad Co., 13 Lewis V. Dunlop, 57 Miss. 130. La. 570; Stevens v. Gwathmey, 9 Mo. 6 Bethel v. Chipraan, 57 Mich. 379. 636 ; Davis v. Knapp, 8 id. 657 ; Mc- " Denver, etc. R Co. v. Smeeton Ree v. Brown, 45 Tex. 503 ; Morse v. (Colo. App.), 29 P. 815 ; Britt V. Brad- Marshall, 22 la. 290 ; Bebb v. Preston, shaw, 18 Ark. 530; Mason v. Mc- 1 id. 400; Maynard v. Coruwell, 3 Campbell, 2 id. 506 ; Jones v. Howell, Mich. 309. 382 garnishee's disclosure. [§ 540. swer that the garnishee is chargeable,^ though he may not have made a clear denial, he may be entitled to discharge on legal grounds notwithstanding his admissions. As discharge usually is final,^ the plaintiff should be allowed his oppor- tunity to contest before the order of discharge is entered.^ Such order, if granted prematurely, may be revoked on good cause being shown,'* and then the plaintiff may contest. § 540. Maldng the issue. — The plaintiff may contest the disclosure on the ground that it is insufficient, or that it is false. The first ground may be raised by demurrer or excep- tion to the answer — not by a motion to strike out, unless it is frivolous.^ The signature of the plaintiff, or of his counsel, is required to such exception, but its omission is not fatal if no objection be made.^ The question of the truth of the disclosure is raised on the plaintiff's affidavit."' It should be filed in the term in which the answer was filed, unless the court has extended the time.^ And it must be duly certified.^ It is too late to contest in the appellate court.^" In Louisiana the right of traverse is lost if not exercised within the limit fixed by statute.^^ The issue tendered by the plaintiff is met by the garnishee in such way as the statute and practice of the state require : in some states by demurrer, when the affidavit is insuffi- cient, as in Alabama.^^ There issue must be joined ; if the garnishee does not meet the issue he may be defaulted.^^ But 1 Hackley v. Kanitz, 39 Mich. 398 ; 6 First N. Bank v. Eobertson (Tex. Watson V. Kane, 31 id. 63 ; Thomas App.), 22 S. W. 100 ; Boreu v. Bilhng- u Sprague, 12 id. 120 ; Newell u Blair, ton, 82 Tex. 137; Hemming v. Zim- 7 id. 103; Cairo, etc. R. Co. v. Killen- merchitte, 4 id. 137. berg, 82 111. 295 ; Nashville v. Potomac ^ Donald v. Nelson, 95 Ala. 111. Ins. Co., 58 Tenn. 296. 8 Lindsay v. Morris, supra; AIn. 2Turpin v. Coates, 13 Neb. 321. Code, § 2981 ; Beckert v. Wbitlock, 3 Banks v. Hunt, 70 Ga. 741 ; Rail- 83 Ala. 123 ; Opdyke, Ex parte, 03 road V. Peoples, 31 Ohio St. 537; id. 70. Myers v. Smith, 29 id. 120 ; Fearey v. 9 Brake v. Curd, etc. Co. (Ala.), 14 Cummings, 41 Mich. 376. So. 773 ; Ala. Code, § 2981. 4 McWilliamsu. Chemical Co. (Ga.), i" Blackstone v. St Louis, etc. R. 17 S. E, 669, Co., 44 Mo. App. 555. ■^Lindsay v. Morris (Ala.), 13 So. 'i Garcia v. Insurance Co., 31 La. 619; Security Loan Ass'n v. Weems, Ann. 546. 69 Ala. 584 ; Burrus v. Moore, 63 Ga. '2 Lindsay v. Morris, supra. 405; Bartlett v. Wilbur, 53 Md. 485. 13 Lehman v. Hudson, 85 Ala. 135. §§ 541, 542.] TRAVERSE OF ANSWER. 383 a formal rejoinder is not necessary everywhere ; the question raised by the affidavit contesting the answer may be deemed at issue without such pleading, as in Colorado.^ § 541, Evidence. — The plaintiff in traversing may disprove the disclosure but not extend it, unless authorized by statute.^ In disproving it and showing the garnishee's liability he may introduce evidence as in an ordinary case.^ lie may offer evi- dence tending to show collusion between the garnishee and the defendant to defeat him, and their declarations are ad- missible.^ The evidence must be confined to the real issue. The answer is not shaken by testimony inconclusive as to the garnishee's previous replies to unauthorized questions.^ The attaching creditor cannot prove, against the garnishee who is a grantee, a verbal promise (exacted b}'' the defendant as grantor as the condition of the conveyance) to pay such cred- itor's claim in full, when the instrument of conveyance recites, as consideration, the grantee's promise to pay all the creditors of the grantor in equal proportion.^ But he may prove the garnishee's admissions, before and after his answer, to contra- dict it.^ § 542. To successfully reach a fund in the hands of a gar- nishee the attaching creditor must have the admission in the answer that it belongs to the defendant;^ or if, in the absence 1 Joues V. Langhorne (Colo.), 34 P. garnishee (Cahoon v. Ellis, 18 Vt 997; Colo. Code (1887), § 128. 500), or for him. Thomas v. Price, 2 Raymond v. Narragansett Co., 14 30 Md. 483; Warren v. Moore, 52 Ga. R. I, 310 ; Sweet v. Reed, 13 id. 121. 562. May they not be allowed in evi- 3 Kelley r. Weymouth, 68 Me. 197; dence to discredit the disclosure? Gouch V. Tolman, 10 Cush. 104 ; McKee v. Anderson, 35 Ind, 17 ; Car- Leighton v. Heagerty, 21 Minn. 42 ; roll v. Tinley, 26 Barb. 61. Donnelly u O'Connor, 22 id. 309 ; ' Watson v. Montgomery (Tex.), 16 Bates V. Forsyth, 64 Ga. 232 ; Baxter S. W. 541 ; Palmer v. Gilmore, 148 V. Mo. etc. R. Co., 67 Barb. 283 ; Rutter Pa. 48. Held, garnishee not estopped V. Boyd, 3 Abb. New Cas. 66 ; McNeal by his conversational admissions. V. Roach, 49 Miss. 436 ; East Line, etc. Warder v. Baker, 54 Wis. 49 ; Almy R Co. V. Terry, 50 Tex. 129. v. Thurber, 99 N. Y. 407 ; Henderson IMuUen v. Maguire, 10 Pliila. 435. bal statements of garnishee, Sears v. When a garnishee has made no ob- Thompson, 73 la. 61. jection to a statement of his indebt- 2 Meyer v. Defifarge, 30 La. Ann. edness made in his presence at a (Part I), 548. meeting where he presided, the fact * Vertrees v. Hicks, 4 Bax. 380. was received in evidence against ^ Oakes v. Marqiiardt, 49 la. 643. him. Des Moines Bank v. Hotel Co. See Barry v. Hogan, 110 Mass. 209. (la.), 55 N. W. 67. But see, as to ver- § 552.] CHARGING ORDER. 391 pleasure. Tlie garnishee may be sued by the agent's princi- pal, whose right is superior to that of the agent. And, in an attachment proceeding, after the garnishee has answered that he owes the defendant, the principal of that defendant may claim the debt ; and upon the establishment of the fact that the garnishee owes the defendant, who is the agent of the claimant, he will be entitled to have the attachment set aside.^ YIII. The Charging Order. § 552. Interlocutory judgment. — The only judgment that can be rendered against the garnishee at this stage of the proceedings, before there has been any rendered against the principal defendant and the property attached or subjected to garnishment, must necessarily be merely interlocutory. Being subsidiary to the main decree, it cannot possibly possess final- ity before that shall have been rendered. ]^o final judgment, except one in favor of the garnishee, pronouncing his discharge, can be rendered in the side suit until the principal suit shall have been prosecuted to its termination, and that termination must be favorable to the attaching creditor if he is to have final judgment and execution against the garnishee. There should be no charging order in doubtful cases.^ The defend- ant may oppose the charging of the garnishee on proper grounds, such as that the debt or property is exempt; that the attachment has been vacated, or any ground that his in- terest requires him to assert; but the opposition should be before the interlocutory order has been made — at least be- fore the garnishee has paid or delivered and the plaintiff has received.' The order must be valid or the garnishee will not be ac- quitted by payment thereunder. Payment by him under order, when his summons had been illegally returned, was 1 Sheehan v. Maiston & Trustee, debt. Simmons v. Woods. 144 Mass. 132 Mass. 161. It lias been held that 385, distinguishing Allen u Wright, attachment is not dissolved by the 134 Mass. 347, and 136 Mass. 193. See discharge of a garnishee or trustee, Belknap v. Gibbons, 13 Met 471. who, summoned as mortgagee, dis- sijraiuard r. Simmons, 67 la. 646. claims and denies the mortgage and 3 i\[Q ^i, Arnot, 31 Kan. 672. 392 garnishee's disclosuke. [§ 553. held void, aud he was not protected from a subsequent suit by the attachment defendant.^ § 553. After the garnishee has become bound to pay to the plaintiff (or to pay into court for his benefit), the defendant cannot defeat the charging order by disclaimer. He cannot disclaim a fine due him to defeat garnishment.- He cannot move for a new trial of the garnishment proceeding.^ His and the garnishee's rights and liabilities, relative to the charging order, have been passed upon under various circumstances.* iWhitcorab v. Atkins (Neb.), 59 316; Thompson u. GainsvilleN. Bank, N. W. 86 ; Neb. Civ. Code, § 244. 66 Tex. 156 ; Huot v. Ely, 17 Fla. 775 ; ^Fisku Aldricb, 59N. H. 113. Secor v. Witter, 39 Ohio St. 218; SFosteru Haynes, 88Ga.240. And Terra Haute, etc. Co. u Baker, 122 the garnishee cannot move for a new Ind. 433; Smith v. Dickson, 58 la. trial of the attachment case. Ex- 444; Broadhurst v. Morgan (N. H.), change Bank v. Freeman, 89 Ga. 771. 29 A. 553 ; Studebaker, etc. Co. v. 4Holcomb V. Winchester, 52 Ct Santo Tomas Coal Co. (Tex. Civ. 447; Farwell v. Chambers, 63 Mich. App.), 27 S. W. 787. I CHAPTER XY. THE PROPERTY IN COURT. L Custody by the Sheriff §§ 554-561 II. Keepers or Receiptors 5G2-572 'JL Defendant Holding Under the Sheriff 573-576 IV. Receivers 577-578 V, The Garnishee's Possession 579-587 VI. Sale of Perishable Goods 588-592 VII. Loss of Custody 593-595 I. Custody by the Sheriff. § 554. Control 1)7/ the court. — When the return shows that joroperty of the debtor has been validly attached, the court, in contemplation of law, is in possession of the res and may exercise control over it. It is necessary to an attachment suit, as it is in any proceeding m rem, that the property be in court. The custody by the sheriff is not adverse to the judicial pos- session, but under the authority of the court. The custody by a keeper is under the marshal, sheriff, constable or other executive officer ; so, also, the possession by a receiptor, or by the debtor himself under a forthcoming bond, is entirely sub- ordinate to that of the responsible executive officer, and all are under the court ; the attached property is none the less in court by reason of its having been intrusted to any subordi- nate custodian. The immediate relation of the court to the property is through the executive officer, to whom judicial orders respect- ing the custod}", preservation, sale or deliveiy are addressed. The intrusting of property to keepers or receiptors is done by that officer himself, pursuant to law; and even the temporary and contingent release to the defendant on a forthcoming bond is his business in many of the states. And even pro[)- erty or a credit of the defendant, attached in the hands of a third person, is deemed to be in court for all the purposes of the suit. 39dl: PEOPEKTY IN COURT. [§§ 555,^ 556. § 555. Diligence. — The sheriff must exercise car^ and dili- gence in the keeping and preservation of the property at- tached, and he is legally responsible therefor to whom it may concern.^ He is not responsible beyond reasonable watchful- ness, precaution and the employment of proper means of security. He ought to be even more careful than owners ordinarily are. He would not be doing his duty should he leave the door unlocked in which attached goods are stored with no keeper on guard, though owners are accustomed to leave many species of property thus exposed. This is because they are in more danger of being molested than goods not under seizure. He is not liable, however, when attached prop- erty perishes without his fault.- § 556. H, to avoid expense, or for other reason, the plaintiff should obtain an order of court directing the officer to dispense with the keeper, the sheriff, though still bound to due diligence, could not be held responsible to the plaintiff for any loss trace- able to the want of a keeper. The plaintiff, to effect the dis- charge of the keeper, should apply to the court, not to the executive officer.* He cannot have the property intrusted to himself.* 1 Becker v. Bailies, 44 Ct. 167; Pacific, etc. (Utah), 31 P. 499; Root Bridges v. Perry, 14 Vt. 263 ; Cutter v. Columbus, etc. R. Co. (Ohio), 13 V. Howe, 133 Mass. 541 ; Davis v. N. E. 812 ; Jordan v. Gallup, 16 Ct. Stone, 120 id. 338; Weavev v. Wood, 5;:36; Dorrier v. Masters, 83 Va. 459; 49 Cal. 297; Kendall v. Morse, 43 Lyeth v. Griffis, 44 Kan. 159; Cris- N. H. 553 ; Lovejoy v. Hutchins, 23 field v. Neal, 36 id. 282 ; Russell v. Me. 272; Clerk v. Withers, 2 Lord Mayor, 29 Mo. App. 167; Peeler v. Raymond, 1075 ; Mildmay v. Smith, 3 Stebbins, 36 Vt. 644 ; Stewart v. Mar- Saund. 343; Wilbraham v. Snow, id. tin, 16 id. 397; Yale v. Saunders, id. 47 ; Littleton v. Wyman, 69 la. 348 ; 243. See Barron v. Smith, 63 Vt. Bickler v. Kendall, 66 id. 703 ; 121 (in exposition of act of 1884, No. Rix V. Silknitter, 57 id. 262 ; Craw- 99) ; Lewiston Mill Co. v. Foss, 81 ford V. Newell, 23 id. 453; Zschocke Me. 593; Naser v. First N. Bank, 116 V. People, 62 111. 127 ; Hardin v. N. Y. 492 ; Grey v. Sheridan, etc. Co., Sisson, 36 111. App. 383; Crittenden 19 Abb. N. C. 152; Mooney v. Broad- V. Rogers, 43 111. 100; Davidson v. way (Ariz.), 11 P. 114. Waldron, 31 id. 120 ; Havely v. Lowry, 2 ide v. Fassett, 45 Vt. 68 ; Cross v. 30 id. 446 ; Minor v. Herriford, 25 id. Brown, 41 N. H. 283 ; Shaw v. Laugh- 344 ; Cogswell v. Wilson, 17 Greg. 31 ; ton, 20 Me. 366 ; Falls v. Weissinger, Schneider v. Sears, 13 id. 69; Wood 11 Ala. 801. V. Bodine, 33 Hun, 354 ; Powell v. » The Independent, 9 Ben. 489. McKechnie, 3 Dak. 319 ; Chisman v. * Vanneter v. Grossman, 39 Mich. Dorsey, 13 Colo. 567; Ross v. Phil- 310. brick, 39 Me. 29; Kiesel v. Union 'T.J CUSTODY BY SHERIFF. 395 Efficient care and diligence, in the protection and preserva- tion of the things attached, is required; such care as is reason- able and necessary for the protection and preservation of property under seizure and subject to litigation; and courts always take into consideration the circumstances of each case.^ It is the officer's right and duty to protect the property in his charge from trespassers, and they are directly liable to him.- § 557. Bcsto ration. — Upon the dissolution of attachment it is his dut}^ to restore the res to the defendant — not the im- 1 Starr v. Moore, 3 McLean, 354; Farris v. State, 33 Ark. 70; Adler V. Roth, 2 McCrary, 445 ; Runlett v. Bell, 5 N. H. 433 ; Howard v. Whitte- more, 9 id. 134 ; Barron v. Cobleigh, 11 id. 557; Kendall v. Morse, 43 id. 553 ; Bruce v. Pettengill, 13 id. 341 ; Bridges v. Perry, 14 Vt. 263 ; Johnson V. Edson, 2 Aikens (Vt), 299 ; Brown V. Richmond, 27 Vt 583; Gilbert v. Crandall, 34 id. 188 ; Briggs v. Taylor, 28 id. 180 ; Smith v. Church, 27 id. 168: Parrott v. Dearborn, 104 Mass. 168; Philhps v. Bridge, 11 id. 242; Tyler v. Ulmer, 13 id. 163 ; Congdon V. Cooper, 15 id. 10 ; Cooper v. Mowry, 16 id. 5 ; Sewall v. Mattoon, 9 id. 535 ; Fettyplace v. Dutch, 13 Pick. 388; Hemmenway v. Wheeler, 14 id. 408; Sanderson v. Edwards, 16 id. 144; Donham v. Wild, 19 id. 530; Law- rence V. Rice, 13 Met 537 ; Dorham V. Kane, 5 Allen. 38 ; Pierce v. Strick- land, 2 Story, 292 ; Adams v. Balch, 5 ^le. 188; Jenney v. Delesdernier, 20 id. 183; Twombly v. Hunnewell, 2 id. 221 ; Rice v. Wilkinson, 21 id. 558; Tukey v. Smith, 18 id. 125; Childs V. Ham, 23 id. 74 ; Farnham V. Oilman, 24 id. 250; Lovejoy v. Hutchins, 23 id. 272; Bennett v. Brown, 31 Barb. 158 ; McKay v. nar- rower, 27 id. 463 ; Moore v. Wester- velt 1 Bosworth, 357 ; Dick v. Bailey, 2 La. Ann. 974 ; McComb v. Reed, 28 Cal. 281 ; Sagely v. Livermore, 45 id. 613; Weaver v. Wood, 49 id. 297; Newman v. Kane, 9 Nev. 234 ; State V. Baldwin, 10 Bissell, 165. 2 Smart v. Bachelder, 57 N. H. 140 ; Ordiorne v. Colley, 2 id. 66 ; Sinclair V. Tarbox, id. 135; Goodrich v. Church, 20 Vt 187; Whitney v. Ladd, 10 id. 1G5 ; Barker v. Miller, 6 Johns. 195; Hotchkiss v. McVicker, 12 id. 403; Ladd v. North, 2 Mass. 514; Warren v. Leland, 9 id. 265; Perley v. Foster, id. 112; Ludden v. Leavitt id. 104; Gibbs v. Chase, 10 id. 125 ; Gates v. Gates. 15 id. 310 ; Gordon v. Jenney, 16 id. 465 ; Whit- tier V. Smith, 11 id. 211; Harriman V. Gray, 108 Mass. 229 ; Pool v. Sym- onds, 1 N. H. 289; Huntington v. Blaisdell, 2 id. 317; Lovell v. Sabin, 15 id. 29; Butterfield v. Cleraence, 10 Cush. 269; Strout v. Bradbury, 5 Me. 313 : Nichols v. Valentine, 36 id. 322 ; Walker v. Foxcrof t, 2 id. 270 ; Torrey V. Otis, 67 id. 573; Wadsworth v. Walliker, 45 la. 395 ; Lathrop v. Blake, 3 Fos. 46 ; Lowry v. Walker, 5 Vt 181; Adler v. Roth, 2 McCrary, 445; Utley V. Smith, 7 Vt 154 ; Brownell V. Manchester, 1 Pick. 232 ; Badlam V. Tucker, id. 389 ; Stiles v. Davis, 1 Black, 101; Rhoads v. Woods, 41 Barb. 471 ; Farris v. The State, use, etc., 33 Ark. 70; Atkins v. Swope, 38 id. 538; Foulks v. Pegg, 6 Nev. 136; United States v. McDonald, 8 Biss. 439 ; Woolfolk v. Ingraham, 53 Ala. 11. 39G PEOPERTY IN COUET. [§§ 558, 559. mediate duty of the plaintiff, since the latter has no posses- sion.^ He cannot hold after he has ceased to be the legal custodian,^ In his capacity as custodian under the court, in consideration of his ultimate duty to have the property ready for execution should there be judgment for the plaintiff, or to return it to the defendant should there be judgment in favor of the latter, he has such present legal right of property in it that he may sue and be sued concerning it in his own official character.^ He is entitled to timely demand before being sued for restoration.* § 558. Constructive 2>ossession. — Legal and constructive possession and actual control must be maintained though the property be not susceptible of mauijjulation, and though the seizure was effected by giving notice or by whatever other method may have been most practicable in conformity to statute. Machinery bolted or otherwise fastened to the free- hold need not be removed by the sheriff for the purpose of getting legal possession and control ; and he need not detach it in order to maintain his possession.^ §559. IIoiv landis held. — As land is attached by giving notice to the tenant in possession, making proper return, re- cording the lien when required, etc., there is no need of the appointment of a keeper to maintain the possession ; but the legal custody must be maintained as in the case of personal property. Whatever would operate a displacement of the lien created by the constructive seizure, so that the property could be transferred by the defendant free from incumbrance, would be equivalent to the relinquishment of the legal posses- sion; and, if such result should prove to have been caused by any action or negligence of the sheriff or marshal, or of those under his authority, he would be responsible. 1 Blanchard v. Brown, 42 Mich. 4G. Marshall v. Marshall, 2 Houston Also when the plaintiff orders re- (Del.), 125. lease. Levy v. McDowell, 45 Tex. * Shepherd v. Hall, 77 Me. 569. 220. 5 Patch V. Wessels, 46 Mich. 249; 2 Collins V. Smith, 16 Vt. 9; Holtu Hatch v. Fowler, 28 id. 211. So of Burbank, 47 N. H. 164; Ryan v. Pea- farming products in bulk, stored in cock, 40 Minn. 470. a barn. Woodman v. Trafton, 7 Me. 3 Whitney v. Ladd, 10 Vt. 165; 178; Carr v. Farley, 12 id. 328. So Schaeffer v. Marienthal, 17 Ohio St. of a growing crop. Grover v. Buck, 183; Skinner f. Stuart, 39 Barb. 206; 84 Mich. 519. So of corded wood. Molm V. Barton, 27 Minn. 530. §§ 5G0, 5G1.] CUSTODY BY SHERIFF. 397 § 560. When the statute makes an attaching creditor a pur- chaser for value, he may maintain a suit in equity to set aside an assignment of the attached property on the ground of fraud ;^ but he has no greater rights than any other such pur- chaser.2 The fiction that the attaching creditor is a purchaser ' is not extended to give him rights to land when the debtor liad none/ No right to actual possession is given by attach- ing; no right to collect rents.^ The officer takes legal posses- sion and control so that the land is in court and subject to the jurisdiction. The lien upon it dates from the attachment generally. In Missouri it begins from the filing of an " ab- stract of the attachment" in the recorder's office.** In Mich- igan and other states the lien depends on the registry of the attachment of real estate.'^ In Texas the lien begins from the date of the levy — not from that of the publication to the ab- sent debtor;^ and it is not displaced by failure to file the attachment return till after the first term of court, though intervening right may be acquired by others meanwhile.® It is not destroyed by delivering the attached realty to the de- fendant on his forthcoming bond.^*^ But the loss of the legal custody of attached land is the loss of jurisdiction over the attachment, and this is well settled. Legal custody of land is as important as both legal and actual custody of personalty. When the attaching creditor has abandoned his attachment, no order of court is necessary for the release of the land, as it is not in actual official custody." § 561. How goods are liei)t. — The sheriff may keep attached goods under lock and key in a warehouse, or otherwise and elsewhere, under his own immediate care; but it is usual to intrust them to the care of a keeper selected in consideration 1 Hahn v. Salmon, 20 Fed. 801. ^ Davis, etc. Co. v. Whitney, 61 2 Boehreinger u. Crelghton, 10 Oieg. Mich. 518; French v. De Bow, 38 id. 43. 708. 3 Woodward v. Sartwell, 129 Mass. 8 Walton v. Cope, 3 Tex. Civ. App. 210 ; Coffin v. 'Ray, 1 Met. (Mass.) 212. 499 ; Tex. Stat of 1889. * Cowley V. McLaughlin, 141 Mass. 9 City Bank v. Cupp, 59 Tex. 268. 181 ; Haynes v. Jones, 5 Met (Mass.) i" Stevenson v. Palmer, 14 Colo. 565. 293 ; Oregon Ry. and Nav. Co. v. The rule is not confined to Colorado, Gates, 10 Greg. 514. but is general. 5 Kothman r. Markson, 34 Kan. 5-12. u Smith v. Robinson, 64 Cal. 887. 6 Stanton v. Boschert, 104 Mo. 393. 398 PKOPERTY IN COUET. [§ 562. of his trustworthiness. Keepers are often necessary to secure the safety of attached goods or other articles of personal property, especially when there are several cases of seizure in court so that it may bec6me impracticable for the sheriff to become the personal and immediate custodian of all. Keepers are the servants of the sheriff, subject to his direct commands, while he continues amenable to the court as the only cus- todian judicially recognized as responsible for the safe-keeping and certain forthcoming of the property upon which the juris- diction rests. Goods attached are often allowed to remain in the store or warehouse in which they are found, since this is usually most to the interest of all parties concerned and prevents the loss, intermixture and confusion which removal would be likely to cause ; but, when such building is not itself one of the subjects of the attachment, but is the property of the defendant or his lessor or some other person, the sheriff cannot detain the ffoods there as a matter of rio^ht.' He cannot conduct the business of the defendant when he has attached a store with its goods.^ II. Keepees oe Receiptoes. § 562. In general. — It is a common practice for the sheriff to intrust attached property to keepers. He takes from them written acknowledgments showing that they hold the prop- erty under him, subject to be returned to him on his demand. Such a receiptor may be the friend of the attachment debtor, and may really accept the position of bailee in the interest of the debtor, who is still the owner of the property and pre- sumptively not indebted as charged; but the receiptor is legally the sheriff's servant, bound to hold under him, to p.o- serve and protect the property for him, and to have it forth- coming for the purposes of the attachment suit when required. The sheriff is not bound to turn property over to a re- ceiptor, even where that practice is prevalent. He may wisely decline to do so unless well secured by bond. It would be 1 Williams v. Powell, 101 Mass. -Alexander v. Denaveux, 59 Cal. 4G7; Newton v. Adams, 4 Vt. 437; 476. Rowley v. Rice, 11 Met. 337 ; Malcom V. Spoor, 12 id. 279. §§ 5G3, 564] KEEPERS OR RECEIPTORS. 399 unsafe to do so without security, unless the plaintiff has pre- viously consented to such arrangement and thus exonerated the sheriff from all danger of subsequent blame and claim for damage. § 563. Description. — The attached property should be de- scribed in the receipt; there should be an inventory if there are several articles ; there should always be such particularity as to render the property easily susceptible of identification.^ A bailee to whom attached property is intrusted by the sheriff is the agent of that officer for keeping it — not of the plaintiff or defendant. It is still in the constructive posses- sion of the court; still legally in the hands of the sheriff by the bailee holding under him as his representative, or agent, or servant." § 564. Beceiptor''s possession. — The receiptor, while thus holding things pending the suit, has no such possession as would enable him legally to turn them over to the defendant free from lien, to sell them, or otherwise to dispose of them.' He cannot appropriate the things to himself, subject them to his own use, and offer to return equivalents or pay the value ; for the officer has no right to take from him an alternate ob- ligation.* 1 Anthony v. Comstock, 1 R. I. 454. Hutchins, 19 id. 255 ; Eastman v. 2 Dudley v. Lamoille County Bank, Avery. 23 id. 248 ; Farris v. The State, 14 Fed. 217. "The mere servant of use, etc., 33 Ark. 70; Gilbert v. Cran- the sheriff : " Ludden v. Leavitt, 9 dall, 34 Vt. 188. The depositary of Mass. 104; reaffirmed, Warren v. attached property is the servant of Leland, id. 265 ; the receiptor is the the sheriff, Meshew v. Gould, 30 La. sheriff's servant, and the sheriff re- Ann. (Part I), 163. tains the lawful possession: Brow- 3 Bacon v. Daniels, 116 Mass. 474 ; nell V. Manchester, 1 Pick. 232; re- Bangs f. Beacham, 68 Me. 425 ; Sibley ceiptor considered "in no other t". Story, 8 Vt. 15: Stimson i'. Ward, character than as the servant of the 47 id. 624 ; Haynes v. Morgan, 3 Mass. officer : " Bond v. Padelford, 13 Mass. 208 ; Ball v. Claflan. 5 Pick. 303. 395 ; " mere servant : " Common- * Page v. Thrall, 11 Vt. 230 ; AVater- wealth I'. Morse, 14 Mass. 217. To house r. Bird, 37 Me. 326 : Waterman the same effect: Barker v. Miller, 6 v. Treat, 49 id. 309; Lamb v. Day, 8 Johns. 195; Brown v. Cook, 9 id. Vt 407; Sibley v. Story, 8 id. 15; 361; Dillenback v. Jerome, 7 Cow. Dean v. Bailey. 12 id. 142; Paul v. 294; Roberts v. Carpenter, 53 Vt. Slason, 22 id. 231 ; Briggs f. Gleason, 678; Mitchell v. Hinman, 8 Wend. 29 id. 78; Collins v. Perkins, 31 id. 667 ; Bangs v. Beacham, 68 Me. 425 ; 624. Torrey v. Otis, 67 id. 573 ; Small v. 400 PEOPEKTY IN COURT. [§ oGo. Since the holding of the keeper is under the sheriff; since the latter retains the legal possession and control so that the property is still deemed to be in court, the attaching credit- or's lien is not divested by the physical passage of the prop- erty into the hands of the receiptor.^ Subsequent attachments may be laid on the property in his hands.^ § 565. Dereliction of the receiptor. — It is certainly in the power of the receiptor to destroy the lien in various ways. He may physically deliver the property to the defendant, or whisk it off beyond the jurisdiction, or commit it to the flames. The sheriff, by reason of his rightful control, may retake the property from the defendant, pursue it beyond the jurisdiction and regain it by legal process there and bring it back, or rescue it from the fire, if he can. But if he cannot, the lien of the plaintiff could not possibly be perfected by judgment, and the court's jurisdiction over the lost r«5 would be ousted. The plaintiff would hold the sheriff responsible ; the sheriff would hold the receiptor responsible, but the lien would be lost by the receiptor's illegal act. There is nothing specially remarkable in this, for an ordi- nary keeper or the sheriff himself might destroy, transport or abandon attached property so as to defeat the lien and divest the jurisdiction so far as the proceeding directly against the property is concerned. The abandonment of attached property to the defendant by the receiptor, being an illegal act entitled to no favor, does not ipso facto divest the sheriff of his legal possession, since the right remains in him to take actual possession whenever he can, and to deprive the receiptor of the trust he is about to 1 Roberts v. Carpenter, 53 Vt. 678 ; tachcd and left in the hands of a IMitchell V. Gooch, 60 Me. 110 ; Bean third person who gives no receipt V. Ayres, 70 id. 431 ; Whitney v. therefor. Watkins v. Cawthorn, 33 Farwell, 10 N. H. 9 ; Kelly v. Dexter, La. Ann. 1194. 15 Vt. 310; Rood v. Scott, 5 id. 263; 2 Bell v. Shafer, 58 Wis. 223; Pat- Beach V. Abbott, 4 id. 605 ; Pierson v. terson v. Stephenson. 77 'Mo. 329 ; Hovey, 1 D. Chipman (Vt.), 51 ; Enos Pond v. Baker, 58 Vt. 293. See Fel- V. Brown, id. 280 ; Stowe v. But- lows v. Wadsworth, 62 N. H. 26. The trick, 125 Mass. 449 ; Woodward v. bailee or receiptor cannot deny that Munson, 126 id. 102 ; Tomlinson v. he received the goods from the offi- Collins, 20 Ct. 364. Tlie slieriff re- cer. Allen v. Butler, 9 Vt. 122. tains legal possession of money at- 5GG.] KEEPERS OR RECEIPTORS. 401 abuse, or deprive the defendant of the property when the trust has been thus abused.^ § 5GG. Kecp'uKj, relative to the lien. — Whether or not the lien is lost by the unlawful restoration to the defendant de- pends upon attendant circumstances. If the sheriff knowingly lets personal property remain in the debtor's hands so that he ceases to be the legal custodian, and the debtor conveys them to an innocent third person purchasing for value and a'cttino^ delivery, the court's control would be broken and the lien by attaching would be lost.- AVhen a sheriff takes a receipt with the alternate obliga- tion assumed by the receiptor to return the goods on demand or pay their value (which is illegal, and to be construed as a ])roraise to return the goods),' it seems that the lien would be lost immediately upon his restoration of the property to the defendant/ The receiptor cannot avail himself of trifling errors in the ])roceedings for the purpose of avoiding his obligations.^ But 1 Bean v. Ayres, 70 Me. 421 ; Wood- ward V. MuDson, 126 Mass. 102. Cases cited in preceding note, and Briggs V. Mason, 31 Vt. 433 ; Rood v. Scott, 5 id. 263 ; Sibley v. Story, 8 id. 15 : Bond v. Padelford, 13 Mass. 394 : '"The special propertj" remained in him [the sheriff], and he had a com- plete right to the possession." Odi- orne v. CoUey, 2 N. H. 66 ; Whitney V. Farwell, 10 id. 9. - Baker v. Warren, 6 Gray, 527 ; Whitney v. Farwell. 10 N. H. 9; Davis I'.* Miller, 1 Vt. 9; Daker v. Fuller, 21 Pick. 318; Tomlinson r. Collins, 20 Ct. 364; Thompson v. Baker, 74 Me. 48. See Sherrod v. Davis, 17 Ala. 812. 3 Sibley v. Story, 8 Vt. 15. *In Robinson v. Mansfield, 13 Pick. 142, it was insisted upon by counsel that notwithstanding the restoration to the defendant of attached prop- erty by one Kimball, receiptor, the sheriff retained the legal possession, etc., but the court said : " This ob- 26 jection is invalid, for the lien had been discharged and the obligation of Kimball substituted for the goods. It has always been held that, where goods attached are placed in the cus- tody of a receiptor in the usual mode and delivered to the debtor, they may be conveyed by the debtor or be attached again at the suit of another creditor." In Denny v. Willard, 11 Pick. 519, it is held that the defend- ant may sell property returned to him by a receiptor, and tliat if they re- main subject to the attachment, the general property will pass by the sale, subject only to the lien. Of course, any attachment defendant may sell subject to the lieu, even when his attached property is under the sheriffs bolts and bars. 5 Hunter v. Peaks, 74 Me. 363, where a receiptor sought to avail himself of an error in the defend- ant's name — C. Wood instead of Rob- ert C. Wood. In Shaw r. O'Brion, 69 Me. 501, the error of writing ■±02 PROPERTY IN COURT. [§§ 567, 568. an error in the amount stated in bis receipt or certificate to the sheriff may be corrected, by proper showing, when he is sued for the sum stated.^ § 567. The rule seems to be that the court's possession and jurisdiction remain inviolate, even when the property is phys- ically in the defendant's hands, if he holds under the sheriff after attachment and after it has been intrusted to a bailee or receiptor, provided he derives his custody of it from such re- ceiptor and does not have any independent right to hold. If he is permitted to hold adversely to the sheriff, it is not pos- sible that the court's possession can also be maintained and the attachment lien preserved.- Whoever ma}'' be the agent holding under the sheiriff, the latter must have the legal pos- session and control ; and. unless there are circumstances justi- fying constructive possession, it must be actual, in the hands of the officer or his agent.* Demand on the keeper should be made before the execution expires.* It is the duty of the of- ficer to recover the property from him.^ § 568. Keeper a siib-agent. — The relation of the keeper is to the sheriff; he is not directly the agent of the court in his custody of the property, but a sub-agent; he is the direct rep- resentative of the executive officer; and if he has any cause of complaint, he must look to his immediate principal, and may sue him.^ "When the immediate principal is released from his duties as custodian by the dissolution of the attachment, it is for him to discharge the receiptor. When the latter was appointed administrator of the estate of the defendant, it was held that his office of keeper ceased because the death dissolved the attachment.'' Insolvency adjudged against the debtor before "Augustu" instead of "Augustus" 9; Thompson v. Baker, 74 Me. 48; in the certificate of a register of deeds Bicknell v. Hill, 33 id. 297 ; Wads- was held fatal, so that no lien was worth v. Walhker, 45 la. 395. created on the estate of '■ Augustas." * Adler v. Roth, 2 McCrary, 445. But this is not inconsistent with the ■• Allen v. Carty, 19 Vt. 65. case above cited respecting receipt- 5 Allen v. Doyle, 33 Me. 420. ors of attached property. ^ Stowe v. Butrick, 125 Mass. 449. lAlmy V. Thurber, 65 How. Pr. 6'ee Adams u. Fox, 17 Vt 361. 481. '^ Dwyer v. Benedict, 12 R. I. 459. 2 Bridge v. Wyman, 14 Mass. 190, But see McClellan v. Lipscomb, 56 195 ; Whitney v. Farwell, 10 N. H. Ala. 255. g^ 5(!0, 570.] KEEPERS OK RECETPTOBS. 403 roperty will have none- to enter judgment^^ It will be observed that the term "jurisdiction" is used in a limited sense when expressing the judicial power consequent from seizure, but in its full signification — power to hear and determine the cause — at the close, where it is said that the court " will have none to enter judgment" unless notice has been given. § 618. Admiralty. — The class which includes those admi- ralty proceedings which are against things and conclusive of all persons also includes proceedings at law against things seized upon land; and the same rule prevails. The statutes of the United States contain many authorizations, and the reports many illustrations, of proceedings at law of this character. Admiralty causes directly against property are not peculiar; the}' belong to a class, as observed in the quotation above made. Many of the class are upon liens. That is, they are against things indebted by legal fiction. § 619. Were it true that seizure alone gives jurisdiction to determine the cause, the summons of debtors present might be neirlected as well as the notification of debtors absent. In general proceedings to conclude the world, no summons is issued. If attachments were entirely analogous, none need be issued, though it is a limited proceeding. But no one con- tends that the summons is rendered unnecessary because seiz- ure is presumptive notice: wh}^ then should publication (on ^Cooley's Const. Limitations (filh ed.), pp. 495, 496. The italics are not used in his text. 430 JURISDICTION. [§§ 620, 621. failure of service) be thought needless because there is such presumption? § 620. jPerisliable irroi)erty. — The sale of perishable prop- erty, by order of court, before any condemnation of it, may be be made without publication notice to an absent defendant. Such sale always rests upon necessity for its justification. Ordinarily there is no necessit}'- for such haste that there must be sale after attachment and before publication; but, admit- ting the necessity in any case, the want of notice to the owner would not render invalid the title acquired by the purchaser at the sale. But this forms no exception to the general rule that publication is essential to the validity of a judgment in an attachment suit against the property of a non-resident not served with process. It is not an exceptional judgment divest- ing the owner of his rights, for he owns the proceeds after his perishable property has been converted into cash. The thing sold would have perished had it not been sold. The purchaser has obtained the title which the former owner had, but not by virtue of an attachment judgment against the property.^ § 621- It has been thought that when property has been attached and brought into court, but the debtor owner not reached, the court has jurisdiction over it irrespective of the owner, because there is power to order its sale if it is perish- able. It is needless to say that the court's right to sell is for the preservation of the property by changing it from its per- ishable condition to money which remains in custody as its substitute.- There is no hearing and determining the ques- tion of the validity of the plaintiff's claim, nor of the liability of the property attached. There is no exercise of jurisdiction 1 Betterton u. Epstein, 78 Tex. 443. or of lien-vindication. This case does lu Megee v. Beirne, 39 Pa. St. 50, 62, not teach that thei'e may be condem- it is said that such order and sale of nation without notice, perishable property is a proceeding -' Franke v. Eby, 50 Mo. App. 579 ; in rem, and that the purchaser takes ante, %% 588-592. Should the defend- title against all persons, etc. It is a ant subsequently appear and gain mere order for the sale of property — his suit, he would certainly be en- there is no condemnation of it. No- titled to the proceeds of his property tice is necessary in any proceeding sold as perishable under an interloc- in rem leading to a valid decree of utory order. Cross v, Elliott, 69 Me. condemnation, whether of forfeiture 387. §§ 622, G23.] JURISDICTION over debtor's property. 431 in the sense in which jurisdiction is exercised when there is final judgment in the case.' §622. JuiJtjmcnt nisi. — In states where attachment suits against non-residents are allowed to proceed to judgment nisi, when there has been no publication, it is necessary to exact of the attaching creditor a bond by which he obligates himself to refund whatever he may acquire by the sale of the prop- erty', should the absent owner appear and set aside the judg- ment within a year. And the execution of such a bond is made an indispensable preliminary to any proceeding against the attached property after such judgment. The jurisdiction of the court is not such as to enable it to render final judg- ment by virtue of attachment alone, without notice.- § 623. Every one to be affected directly by the judgment must be afforded an opportunity to be heard; must be offered his day in court; must be allowed full privilege and time to defend his property, which implies previous notice of the hear- ing;' emphatically so in consideration of the peculiar nature of the attachment proceeding. It is nominally against the debtor, though in effect against his property in case he is not summoned and does not respond to notice; but the law favors the ])ersonal feature of the suit, and requires that an oppor- tunity be given for the defendant to preserve its personal ' Oeters v. Aehle, 31 Mo. 380; ante, similar to those under the custom of p. 4t2. London, and partaking of the char- 2 Walters v. Monroe, 17 Md. 505 acter of the old distraint laws. Some (in which there is a copy of such an "speckled cattle " had been attached attachment judgment nisi); Camp- or distrained to "compel appear- bell V. Robert Morris, 3 Harris & Mc- ance " on the part of the alleged Henry (Md.) 553; Potomac Steam- debtor. There was judgment nisi, boat Co. V. Clyde, 51 Md. 174; Harris and the attaching creditor was re- t'. Hardeman, 14 How. 343; Hiller v. quired to give bond before sale. Lampkin, 54 Miss. 14 (in exposition Under these circumstances the court, of code of 1871, section 1479), in case rightfully or wrongfully, deemed of default, even though there has prior notice to the debtor a non- been publication notice, bond is re- essential. Strangely enough, this quired; Anderson v. Johnson, 32 case has long been cited to sustain Gratt. 558, in which it is held that a the untenable position that notice non-resident may appear after judg- is not jurisdictional in attachment ment and have the case reheard, etc. suits in which there is fijial judg- Beech v. Abbott, 6 Vt. 586, 593, was ment. a case of foreign attachment, based ^ Abraham v. Nierosi, 87 Ala. 173. on a statute authorizing proceedings 432 JURISDICTION. [§§ 624, 625. character to the end. He is invited to come, not as a mere claimant of the property as in proceedings upon forfeiture and the like, but as the defendant to the action — as one per- sonally sued. §624. JExercise of jurisdiction. — Courts cannot rightfully exercise jurisdiction ^Yithout publication notice, where there is no summons served and no appearance.^ This rule applies to all courts, whether of limited or general jurisdiction. Pro- cedure to judgment without notice, under such circumstances, is error for which the decree in favor of the attaching cred- itor may be reversed on appeal. The reversal may be had, in such case, whether notice was essential to jurisdiction or not; for, when jurisdiction has vested, error in its exercise is fatal on appeal. Omission to give notice upon default of summons is in violation of a requirement common to the statutes au- thorizing attachment, and obligatory upon superior as well as inferior courts. Such omission, or even an insufficient com- pliance with this statutory requirement, renders the judgment voidable.- And the appellate court will look to the record to ascertain whether the required notice was given and whether it was sufficient.^ TV. Statutory Requisites Jurisdictional. §625. No ]}resumpUoyi as to statute requirements. — It is settled that all the statutory prerequisites to attachment are jurisdictional; that they are not to be presumed after judg- ment jurisdictionless for want of them ; and that such judg- ment may be collaterally attacked.* 1 Potomac Steamboat Co. v. Clyde, made, in substantial compliance 51 Md. 174; Harris v. Hardeman, 14 with statutory requirement, a court How. 343; j^ajparfe Railroad Co., 103 of errors may reverse a judgment U. S, 794 ; Edwards v. Toomer, 22 rendered without it. (See note, post. Miss. 75 ; Ridley v. Ridley, 24 id. 648 ; with reference to want of notice in Calhoun V. Ware, 34 id. 146; Gibson case of collateral attack, in which V. Everett (S. C), 19 S. E. 286 ; Mar- this case seems to say that publica- tin V. Dryden, 6 111. 187; "Williams u tion is not jurisdictional.) Compare Stewart, 3 Wis. 773; Massey v. Scott, Gumbel v. Pitkin, 124 U. S. 131. 49 Mo. 278; King v. Harrington, 14 2 id. Mich. 532; Cooper v. Reynolds, 10 SThormeyer v. Sisson, 83 111. 188. Wall. 308, 319: If there is no publi- 4 ciark v. Thompson, 47 111. 26; cation, or no publication properly Schnell t;. City of Chicago, 38 id. 383; § 025.] STATUTORY REQUISITES JURISDICTIONAL. 433 It is erroneous to say that seizure gives jurisdiction so as to render affidavit, bond, etc., presumable after decree, when they are statutory' prerequisites to seizure, and therefore to jurisdiction. It cannot be assumed that seizure has civen Morris r. Hogle, 37 id. 150; Cariker V. Anderson, 27 id. 358; Rowley v. Berrian, 12 id. 198; Vairin v. Ed- monson, 5 Oilman, 270; Lawi-encev. Yeatman, 2 Scam. 15; Ha3-wood v. Collins, 60 111. 328; Haywood v. Mc- Crory, 33 id. 459; Borders v. Murphy, 78 id. 81 ; Clymore v. Williams, 77 id. 618: Roberts v. Dunn, 71 id. 46; Henrie v. Sweazy, 5 Blackf. 273; Hobson V. Emporium Real Estate and Manuf. Co., 42 111. 306: Martin v. Dryden, 6 id. 187; Johnson v. John- son, 26 Ind. 441 ; Mitchell's Adm'r v. Gray, 81 id. 123 ; Millar r. Babcock, 29 Mich. 526; King t\ Harrington, 14 id. 532; Buckley v. Lowr}', 2 id. 418; Roelofson v. Hatch, 3 id. 277; Bower v. Town, 12 id. 233; Van Norman v. Jackson Circuit Judge, 45 id. 204; Gay v. Eaton, 27 La. Ann. 166; Scott v. Davis, 26 id. 688; Nelson v. Simpson, 9 id. 311; New- man V. Kraim, id. 910; Hemshein V. Levy, 32 id. 340; Walker v. Barrelli, id. 467: Walker i}. Day, Griswold & Co., 8 Bax. 77 ; Walker v. Cottrell, 6 id. 257; Wall v. Pulliam, 5 Heisk. 365; Ferguson v. Vance, 3 Lea, 90: Grubbsr. Colter, 7 Bax. 433: Bivens v. Mattliews, 7 id. 256 ; Wil- son V. Beadle, 39 Tenn. 510; Pennsyl- vania Steel Co. V. N. J. Southern R. R. Co., 4 Houston (Del.), 572; Clark V. Bryan, 16 Md. 171; Potomac Steamboat Co. v. Clyde, 51 id. 174: Smith V. Easton, 54 id. 138; Marx r. Abraham, 53 Tex. 264; Bruhn v. Jefferson Bank, 54 id, 152; Ward r. McKenzie, 33 id. 297; Shirley r. Byrnes, 34 id. 625 ; Green v. Hill, 4 id. 465; Whittenberg v. Lloyd, 49 id. 633 ; Anderson v. Coburn, 27 Wis. 28 558; Williams v. Stewart, 3 id, 773; Warner v. Webster, 13 Ohio, 505; Myers v. Smith, 29 Ohio St. -125; Egan V. Lumsden, 2 Dis. (Ohio), 168 ; Wescott V. Archer, 12 Neb. 345; Marsh r. Steele, 9 id. 96; Hilton u. Ross, 9 id. 406 ; Spiegelberg v. Sul- livan, 1 New Mexico, 575; Phillips V. Welch, 11 Nev. 187; Moresi v. Swift, 15 id. 215; Levy v. Elliott, 14 id. 435; Creighton v. Kerr, 1 Cal. 509: People v. Baker, 76 N. Y. 87; Robinson v. Nat. Bank, 81 id. 391 ; McKinney v. Collins, 88 id. 216; Phelps V. Baker, 60 Barb. 107; Fitz- simmons v. Marks, 66 id. 333 ; Bogart V. Svvezey, 26 -Hun, 462; Hilbourn v. Woodworth, 5 Johns. 37; Borden v. Fitch, 15 id. 121 ; Force v. Gower, 23 How. Pr. 294 ; Zeregal v. Benoist, 33 id. 129;' Lampkin v. Douglass, 27 Hun, 51,7 ; Bennett v. Edwards, id. 352 {hut see Carr v. Van Hoesen, 26 id. 316); Bissell v. Briggs, 9 Mass. 462; Downs v. Fuller, 2 Met. 135; Leonard v. Bryant, 11 id. 371; Boyn- ton v. Warren, 99 Mass. 172; Cutler V. Howe, 122 id. 541 ; Davis v. Stone, 120 id. 288 ; Bruce v. Cloutman, 45 N. H. 37 ; Carii'Jon v. Wash. Ins. Co., 35 id. 162; Eaton v. Badger, 33 id. 228; Chadbourne v. Sumner, 16 id. 129; Dunklee v. Fales, 5 id. 527; Downer v. Shaw, 2 Fos. 277 ; Becker V. Bailies, 44 Ct. 167; Taintor v. Williams, 7 id. 271 ; Roberts v. Car- penter, 53 Vt. 678; Flanagan v. Wood, 33 id. 333; Montpelier & Wells River R. R, Co. v. Coffrin, 52 id. 17 ; Fitch v. Rogers, 7 id. 403 ; Coleman's Appeal, 75 Pa. St. 441; Phelps V. Holker, 1 Dall. (Pa.) 261 ; Fitch V. Ross, 4 S. & R. 557 ; Water- 434 JURISDICTION. [§ 626. jurisdiction, when the real question is whether there has been any authority to seize or to proceed in the attachiment case at all without compliance with statutory requirements on the part of the attaching creditor. Such presumption has been indulged when the attachment defendant had been served and brought Dersonallv into court. Ko doubt service gave iuris- diction of the personal action; but how could it give it in the ancillary proceeding? How could that enable the creditor to acquire a lien upon unincumbered property before judgment? How could that dispense with the statutory essentials of an attachment? How could the execution of a writ of summons render a writ of attachment valid without an affidavit such as the statute rendered indispensable? § 626, If jurisdiction over the person of the defendant in an action for debt renders whatever is necessary to the exercise of it presumable after decree (as it unquestionably does, so far as the personal action is concerned, in a court of general ju- 126; Devries v. Summit, 86 id. 126; Metts V. Insurance Co., 17 S. C. 120; Claussen v. Fultz, 13 id. 476; Austin V. Bodley, 4 Mon. (Ky.) 434; Maude v. Rhodes, 4 Dana (Ky.). 144; Hunt V. Johnson, Freeman (Miss.), 282; Myers ZJ. Farrell, 47 Miss. 281; Bates V. Crow, 57 id. 676 ; Edwards V. Toomer, 22 id. 75: Ridley v. Ridley, 24 id. 648: Calhoun v. Ware, 34 id. 146 ; Sanford v. Boring, 12 Cal. 539 ; Wilkie V. Cohn, 54 id. 212; Merced Bank v. Morton, 58 id. 360; State v. Cornelius, 5 Oreg. 48; Dow v. Whit- man, 36 Ala. 604 ; Wright v. Smith, 66 id. 545; Johnson v. Hanna, id. 127 ; Flexner & Lichten v. Dickerson, 65 id. 129; Russell v. Gregory, 62 id. 454; Waxelbaum v. Paschal, 64 Ga. 275; Harralson v. Newton, 63 id. 163; Neal v. Gordon, 60 id. 112; Rodega v. Perkerson, id. 516; Gran- gers' Ins. Co. V. Turner, 61 id. 561 ; Buchanan v. Sterling, 63 id. 227, and very many other cases. There are some to the contrary — Paine v. Mooreland, 15 Ohio, 435, and its fol- lowing. house V. Smith, 22 Me. 337 ; Nichols V. Patton, 18 id. 231 : Lovejoy v. Hutchins. 23 id. 272; Cower v. Stevens, 19 id. 92 (Jbut see Mitchell v. Sutherland, 74 id. 100) ;, Miller u. Dungan, 36 N. J. L. 21; Judah v. Stephenson, 10 la. 493; Cooper v. Smith, 25 id. 269; Morris v. Union Pacific R. R. Co., 56 id. 135; Wilkie V. Jones, 1 Morr. (la.) 97; Charnock V. Colfax, 51 la. 70; Darrance v. Preston, 18 id. 396; Hakes u. Shupe, 27 id. 465; Repine v. McPherson, 2 Kan. 340; Keith v. Stetter, 25 id. 100; Beckwith v. Douglass, 25 id. 229; Race v. Maloney, 21 id. 31; Bundrem v. Denn, 25 id. 430 ; Butler V. White, 25 Minn. 432; Hines v. Chambers, 29 id. 7 ; Hoffner v. Gunz, id. 108; Auerbach v. Hitchcock, 28 id. 73; Abbott v. Sheppard, 44 Mo. 273 ; Smith v. McCutchen, 38 id. 415 ; Massey v. Scott, 49 id. 278 ; Cham- berlain v. Paris, 1 id. 517- Deters v. Aehle, 31 id. 380; Clark v. Brott, 91 id, 473; Miller v. Sharp, 3 Randolph (Va.), 41 ; Hopkirk v. Bridges, 4 Hen. & M. 413; Faulk v. Smith, 84 N. C. §§ 627, C28. STATUTORY REQUISITES JURISDICTIONAL. 435 risdiction), does it follow that the plaintiff may sue out an attachment in such a case and neglect the alFidavit with im- punity? that he can have his ancillary attachment suit with- out compliance with the prerequisites? that a writ, issued and executed without authority, is to be presumed authoritative because personal judgment has been rendered against the de- fendant? that competing attachers must respect the lien thus created and let it outrank theirs on the plea of priorit}'? that assignment before judgment must be set aside on the plea that seizure has been perfected by the personal judgment, or 6ven by a judgment in the ancillary proceeding in which the statutory requisites to jurisdiction had been disregarded? § 627. Instead of assuming that seizure, right or wrong, gives jurisdiction over property and creates a lien, the first step is to inquire into the right to seize, whether the debtor be in court or not. 't'hat right comes from the statute or not at all, in an attachment case. If it is authorized by the law- maker only when ordinary process is inadequate, and when certain conditions or states of facts are shown by the oath of the creditor to be in existence, it is impossible that a court can have power to issue the writ to seize under any other cir- cumstances. If the writ is issued without authorization, there is usurpation of authority. If it is executed, the execution cannot possibly validate the illegal issue by giving to the usurper jurisdiction of such retroactive character as to cure all that went before it and contributed to the wrongful result. AVhatever the statute makes essential to, the movement of the court is necessarily jurisdictional. No court could entertain an attachment suit were all attachment laws repealed. No court could entertain one merely because of its general jurisdiction. Whatever conditions precedent the legislature imposes are indispensable to the lodgment of the authorit}'' to proceed in an attachment case. § 628. Errors in the exercise of jurisdiction. — It was as- sumed that jurisdiction had been already vested, in Yoorhees V. Bank of the United States;^ for there Mr. Justice Baldwin cited several cases which were not upon attachments, but which turned upon principles of the common law (Blaine v. The Charles Carter, 4 Cr. 328; AVheaton v. Sexton, 4 Wheat. 1 10 Pet. 4-19. 436 jUKisDiCTioN. [§ 629. 506; Talmie v. Thompson, 2 Pet. 157; Elliott v. Piersal, 1 Pet. 340; Tajdor v. Thompson, 5 Pet. 370; United States v. Arre- clondo, 6 Pet. 729), to prove that '' when a court has jurisdic- tion it has a right to decide every question that arises in the cause; and whether the decision be correct or not, its judg- ment until reversed is regarded as binding in every court." This is incontrovertible. "With jurisdiction conceded, errors in its exercise are cured by judgment, whether the suit be one of attachment or one at common law. So in Grignon v. Astor,^ which was a case not involving an attachraenJ: but a probate court judgment, the same justice assumed that jurisdiction had been vested, and therefore he held that the giving of publication notice was an act belonging to the exercise of jurisdiction, and might be presumed after the decree. So in Cooper V. Re3'nolds^ it was assumed that jurisdiction had been already vested, and that notice might be presumed after the decree. In all these cases the error is in the assumption that there was jurisdiction to hear and determine. " The attachment of property of a non-resident, upon con- structive service of summons and publication, is extraordi- nary, . . . and in derogation of the common law and the statute law of the United States, and cannot be recognized in a case commenced in a federal court." ^ § 629. Wherever the statute of a state renders publication a jurisdictional requisite, a judgment rendered without com- pliance with it in this respect is absolutely void, not only as to the defendant, but as to a purchaser under such judgment and all other persons. Such judgment, being a nullity at the time of its rendition, cannot possibW be validated by a sale under it.* 1 2 How. 319. menced in a state court and removed 2 10 Wall. 308. to a federal, see Hart v. Sansom, llO 3 Lackett v. Rumbaugh, 45 Fed. U. S. 151-55. Federal courts have 30. United States Revised Statutes no rights superior to state courts (§ 915), relative to actions com- witli respect to attacliments. Bates menced in federal courts, applies to v. Days, 17 Fed. 167. attachments upon the property of * Anderson v. Coburn, 2? Wis 558. non-residents when they have been Section 40 of the Code of Procedure, personally served or have made ap- under which this decision was ren- pearance. Id.; Ex parte Railway dered, required that "in all cases Co.. 103 U. S. 794. As to cases com- where publication is made, the com- § G30.] STATDTORY REQUISITES JURISDICTIONAL. 437 "Where attachment is levied on land of a non-resident and summons is not made on him, the court possesses no power to render judgment against him and order a sale of his property to satisfy it, unless publication has been made as required by law.^ AYhether the property be real or personal, the reason is the same.- § 630. United States courts. — Federal courts are bound to observe the statutes of the state, and they usually look to the construction by the highest court of the state, and follow it; but it is held that they are not bound to do so — the act of congress not requiring it.* The provision of United States Revised Statutes, section 915, that federal courts may adopt state laws relative to attachments, does not require formal in- corporation into the written court rules, but such adoption may appear from the practice of the courts.* Federal courts have no rights superior to those of state courts in matters of attachment and ffarnishraent.* plaint shall be first filed, and the summons as published shall state the time and place of such filing; " and that the publication shall be made "not lei^s than once a week for six weeks." The court said : " These things were made indispensable in order to give the court jurisdiction where service was made by publica- tion. It is an elementary principle, that, where jurisdiction is acquired by publication, the provisions of the statute regulating the mode of serv- ice must be strictly complied with. . . . We therefore think the judgment was void at the time of its rendition, on account of the omission to file the complaint before or when the publication of the summons com- menced, as required by law. . , . There was no valid attachment be- cause there was no proper publica- tion of the summons upon which the validity of the attachment de- pended." 1 Wescott V. Archer, 12 Neb, 345. 2 Haywood v. Collins, GO 111. 828; Clark V. Bryan, 16 Md. 171 ; Millar V. Babcock, 29 Mich. 526; Anderson V. Coburn, 27 Wis. 558. But see Johnson v. Gage, 57 Mo. 160; Hol- land V. Adair, 55 id. 40; Hardie v. Lee. 51 id. 241. 3 Lehman v. Berdin, 5 Dillon, 340; Erstein v. Rothschild, 23 Fed. 61; U, S. R S., § 915; Atlantic & Pac. R. R. Co. V. Hopkins, 94 U. S. 11; Carroll v. Smith, 111 id. 556, 563 ; Burgess v. Seligman, 107 id. 20, 33; County of Cass v. Johnston, 95 id. 360; St. Joseph Township v. Rogers, 16 Wall. 644; State v. Sut- terfield, 54 Mo. 391. ■* Citizens' Bank v. Farwell, 56 Fed. 574 ; Fullerton v. Bank, 1 Pet. 603; Williams V. Bank, 2 id. 96; Duncan's Heirs v. United States, 7 id. 435; United States v. Stevenson, 1 Abb. 497; Lessees v. Corwin, 5 Ohio, 398. 5Gumbol V. Pitkin, 124 U. S. 131; Patterson v. Stephenson, 77 Mo. 329. 438 JURISDICTION. [§ 631. § 631. The federal supreme court, in deciding attachment suits brought up from any state, looks to its statutes and to the construction there made by its highest tribunal for the governing law, since that is wholly statutory. "Whether the question involved be the effect of publication upon jurisdic- tion, or any other, the national tribunal will look to the stat- utes and construction prevailing in the state whence the case has come.' Sometimes a case in that court turns wholly upon a proper understanding of the statutory law applicable to the attachment. If a mistake be made with respect to that, the decision would be shorn of its influence as authority ta prove that the non-observance of statutory requirements by a state court is only voidable error.^ lU. S. Rev. Stat, sec. 721. "The laws of the several states, except where the* constitution, treaties or statutes of the United States other- wise require or provide, shall be re- garded as rules of decision in trials at common law, in courts of the United States, in cases where they apply." Brown v. Van Braam, 3 Dall. 344; Robinson v. Campbell, 3 Wheat. 212 ; Cohens v. Virginia, 6 id. 264 ; Wayman v. Southard, 10 id. 1 ; Green v. Neal's Lessee, 6 Pet. 291 ; Ross V. Duval, 13 id. 45; Swift v. Tyson, 16 id. 1 ; Lane v. Vick, 3 How. 464; Luther v. Borden, 7 id. 1 ; Williamson v. Berry, 8 id. 495; Van Renselaer v. Kearney, 11 id. 297; United States v. Reid, 12 id. 361; Neeves v. Scott, 13 id. 268; Carroll V. Carroll's Lessee, 16 id. 275; Mor- gan V. Curtenius, 20 id. 1 ; Fenn v. Holme, 21 id. 481 ; Jeter v. Hewitt, 22 id. 352; Suydam v. Williamson, 24 id. 328; Sheirburn v. Cordova, id. 423; Haussnecht v. Claypool, 1 Bl. 603; Chicago v. Robbins, 2 id. 418; Leffingwell v. Warren, id. 599; Bridge Proprietors v. Hoboken Com., 1 Wall. 145; Gelpcke v. Dubuque, id. 175; Christy tj. Pridgeon, 4 id. 203; Mitchell V. Burlington, id. 274- Ewing V. City of St. Louis, 5 id. 419; Nichols V. Levy, id. 433; Delmas v. Insurance Co., 14 id. 667; Boyce v. Tabb, 18 id. 546. 2 In tlie case of Cooper v. Reynolds, 10 Wall. 308, there seems to have been a question with regard to the effect of publication upon jurisdic- tion according to the statute of Ten- nessee, whence the case had been brought. The majority of the judges thought that a purchaser at an at- tachment sale could successfully de- fend against a collateral attack, though no publication or no suffi- cient publication was shown by the record of the attachment suit. It was shown that the Tennessee code required newspaper publication con- taining the names of the parties, style of the court, the cause of ac- tion, the time and place of the return, etc. ; and section 3524 of that code (1857) was as follows : "The attach- ment and publication are in lieu of personal service upon the defendant, and the plaintiff may proceed upon the return of the attachment duly levied, as if the suit had been com- menced by summons." The supreme §§ 632, 633.] STATUTORY REQUISITES JURISDICTIONAL. 439 § 632. In the United States supreme court case, last cited, notice of publication as required by statute, in the absence of the service of summons and of the defendant's appearance, was deemed non-essential to the jurisdiction because the case was an attachment suit in rem. It is difficult to discover how that fact could authorize non-conformity to the statutes, since it is certainly in the power of every state to regulate its own pro- cess, and to prescribe the essentials of a proceedino- against property as well as those of a proceeding agamst a person. Had there been no publication prescribed, to take the place of a personal summons, in legal effect, as to property; had the code of Tennessee been silent on the subject, there would yet have been necessity for notice to any person who was to be bound by the decree; to all persons, if all were to be bound. A proceeding in rem- (whether one of general notice, to conclude all the world, or of limited notice, to conclude the one or more persons to whom it is addressed) is of no avail when there is no notification at all, except in the lim- ited instances in which notice is presumed. The necessity of notice, in all proceedings in rem., is as well founded upon prin- ciple as is that necessity when the cause is in 'personam. § 633. In its strictures upon that case, the court of Tennes- see (see the preceding note) met the argument by denying that attachment proceeding are in rem in that state; assert- ing that they are in personam though the defendant be not served with summons and should not p.ppear; that attach- ment there is ancillar}' and is not leading process. An attach- < ourt said : " It is of no avail to show approved by the supreme court of liiat there are errors in the record, Tennessee in the case of Walker v. unless they be sucli as to prove that Cotti-ell, 6 Bax. 257. It there said: the court had no jurisdiction of the "We may as well dispense with the case." Reference was then made to levy as with the publication," re- several Tennessee cases (as well as to ferring to section 3524 above quoted United States cases), and publication from the Tennessee code. And then, was held not jurisdictional in such on general principles: "It is con- sense that its omission would make trary to the principle of justice to tiie judgment absolutely void. There take, by judicial action, the property was a dissenting opinion which held of a party and give it to another, that the state court of Tennessee without notice of a pending suit never had acquired jurisdiction of against him." . . . "If the de- the attachment suit. This dissent- fendant has no notice or its equiva- in.L; opinion has been since strongly lent, the judgment is void." 4i0 ' .TUKISDICTION, [§ 634. ment suit at law is necessarily in personam when it originates in a federal coiirt, because the jurisdiction depends upon the residence of the parties as in any case at law therein, when not included in statutory exceptions; an attachment is always ancillar3\^ From this limitation it has been inferred that the non-observance of the requirements of state statutes is mere error of procedure in those courts, not affecting jurisdiction in the ancillary proceeding.'- There must, however, be "sim- ilar affidavits and proofs and similar security, as required by the state law." ^ The state practice must be followed "as near as may be." * It is not a rule of procedure unless adopted by the federal courts. But state statutes are rules of decision governing rights and titles litigated in those courts. § 634. Collateral attaclc. — In a collateral attack upon an attachment judgment, the difference between insufficient no- 1 ice by publication and an entire absence of notice should be remarked, when they are presented as grounds for treating the attachment judgment as a nullity.^ If the plaintiff in such col- lateral action relies alone upon the record to show that the publication in the attachment proceeding fell short of the stat- ute requirement, he will have to encounter the presumption which favors the record ; '' but should he have the silence of the record with regard to notice to rely upon, no presump- tion that notice was given could be invoked against him. lU. S. R. S., §§ 738-842, 915; Ex Here the court presumed the notice parte Raih-oad Co., 103 U. S. 794; sufficient, in the absence of evidence Anderson v. Shaffer, 10 Fed. 266; disproving what appeared of record. Day V. Newark India Rubber Co., 1 It would seem that the judgment Blatchf. 628; Allen v. Blunt, 1 id. would have been held void had there 480 ; Richmond v. Drej'fous, 1 Sumn. been no notice whatever. 131; Piquet V. Swan, 5 Mason, 35; 6 Boker v. Chapline, 12 la. 204, Saddler v. Hudson, 2 Curt. C. C. 6; vidiere the return was, "Served the Toland v. Sprague, 12 Pet. 300; Levy within notice by reading," etc., with- V. Fitzpatrick, 15 id. 171; Chitten- out stating to whom- held that it den's Case, 2 Woods, 437; Clark v. must be presumed that the officer N. J. Steam Nav. Co., 1 Story, 531. served it personally on defendant as - Erstein v. Rothschild, 22 Fed. 61. requii-ed by the writ. Crowley v. 3U. S. R. S., § 915. Wallace, 12 Mo. 147: Presumption * Id., § 914; Indianapolis & St. of the proper township when the Louis R. Co. v: Horst, 93 U. S. 291, officer had omitted to name it in his 300; Nudd v. Burrows, 91 id. 426, i-eturn of service. Bromley i'. Smith. 441. 2 Hill, 517: "Personally served" 5 Gregg V. Thompson, 17 la. 107. presumed to mean all that the stal- §§ G35, 63G.J cul'kt's autiiokity spkcial. 441 V. The Court's Autuority Special. § 635. Su2)erior and inferior courts. — The general rule is that judgments of an inferior court in which it has exceeded its jurisdiction are void; those of superior or general jurisdic- tion, only voidable;' but any court must have power to hear, and to determine the subject-matter, before proceeding to ex- ercise it at all.^ If the jurisdiction of a court of inferior or limited juris- diction has once attached, its subsequent proceedings are presumed as regular as those of a court of general powers.^ On the other hand, when courts of superior or general juris- diction are exercising special statutory powers, their records are subject to the same rules as are those of inferior or lim- ited jurisdiction.* § G36. There is no presumption of the existence of jurisdic- tional facts arising from the exercise of jurisdiction by an inferior court ;^ nor is there any arising from such exercise by a superior court, when acting pursuant to special author- ization. A court, though one of superior jurisdiction, is sub- ject to the rule governing courts of inferior jurisdiction, that nothing shall be intended to be within its powers but what is express!}^ alleged of record, when it is in the exercise of ute required as to time and manner Mass., 12 id. 718; Florentine v. Bar- of service. These presumptions were ton, 2 Wall. 216; Comstock t'. Craw- in collateral attacks made on judg- ford, 3 id. 404; Callen v. Ellison, 13 ments sought to be set aside for in- Ohio St. 452; Sheldon v. Newton, sufficient service ; and in each case 3 id. 494; Shroyer v. Richmond, 16 there was evidence of notice, appear- id. 455; Wilder v. City of Chicago, ing by record. None of these cases 26 111. 182; Dequindre v. Williams, holds that there is presumption of 31 Ind. 456; Smiley v. Samson, 1 notice when the record makes no Neb. 56; Mulford f. Stalzenback, 46 showing whatever of such jurisdic- 111. 307. tional fact. 3<5mjti^ y. Engle, 44 la. 265. 1 Kenipe's Lessee v. Kennedy, 5 * Kansas City, St. Joe & C. B. R. R. Cranch, 173; Thompsons. Tolraie, 2 Co. v. Campbell, 62 Mo. 585. Pet. 157. spettersr. McClannahan. 52 Ala. 2 Beauregard v. New Orleans, 18 55; Cunninghams. Pac. R. R. Co., How. 502; Shriver's Lessee r. Lynn, 61 Mo. 33; State v. Gachenheinier, 2 id. 43, 60; United States v. Arre- 30 Ind. 63; Ohio, etc. R. R. Co. v. dondo, 6 Pet. 709; Voorhies v. B:ink Schultz, 31 id. 150; State v. Ely, 43 of the United States, 10 id. 474: Ala. 508. State of Rhode Island v. State of 4tt2 JDEISDICTION. [§ 637. special statutory authority. And the validity of its judgment may be collaterally questioned if the record does not show. all the required jurisdictional facts.^ The distinction between courts with reference to the pre- sumption of jurisdictional facts after decree is not that be- tween inferior and superior, but between courts acting pur- suant to statutory authorization and those exercising general powers. §637. Meeord evidence. — Courts of special statutory juris- diction must not only act within its scope, but it must appear on the face of their proceedings that they so acted, or their proceedings are coram no/i judice and void.' Courts must 541 ; Kemp v. Kennedy, 5 Cr. 172 ; Turner v. Bank of America, 4 Dall. 11 ; Ransom v. Williams, 2 "Wall. 313; Williamson v. Berry, 8 How. 495 ; Boswell v. Otis. 9 id. 336 ; Eaton V. Badger, 33 N. H. 228: Gray v. McNeal, 12 Ga. 424; Williams v. Blunt, 2 Mass. 213; Hunt v. Hap- good, 4 id. 122; Albee v. Ward, 8 id. 86; Smith v. Rice, 11 id. 513; Hen- drick V. Cleveland, 2 Vt. 329; Wal- bridge v. Hall, 3 id. 114; Clapp v. Beardsley, 1 Aik. (Vt.) 168; Hall v. Howd, 10 Ct. 514; Webster v. Par- sons, Kirby(Ct.), 27; Powers v. Peo- ple, 4 Johns. 292; Latham v, Eger- ton, 9 Cow. 227; Bergen Turnpike Co. V. State, 25 N. J. L. 554; City of Chicago V. Rock Island R. R. Co., 20 111. 286; Martin v. Dryden, 6 id. 187; Martin v. McKinney, Sneed (Ky.), 380; Cannon r. Wood, 2 Sneed (Tenn.), 177 ; Williams v. Stewart, 3 Wis. 773; Hamilton v. Burum, 3 Yerg. (Tenn.) 355; Chandler t;. Nash, 5 Mich. 409; Bryan v. Smith, 10 id. 229; Stockett V. Nicholson, 1 Miss. 75; State v. Metzger, 26 id. 65 ; Sullivan v. Black- well, 28 id.- 737; Edwards v. Toomer, 22 id. 75; Wickes v. Caulk, 5 Har. & J. (Md.) 36; Proctor v. State, 5 Harr. (Del.) 387 ; Potomac Steamboat Co. 17. Clyde, 51 Md. 174; McKenzie V. Ramsay, 1 Bailey (S. G), 459 ; Har- 1 Peacock v. Bell, 1 Saund. 69; Thatcher v. Powell, 6 Wheat. 119: Williamson v. Ball, 8 How. (U. S.) 566; Williamson r. Berry, id. 495; Denning v. Corwin, 11 Wend. 648: Jackson v. Esty, 7 id. 148; Bloom u. Burdick, 1 Hill, 130: Rogers v. Dill, 6 id. 415; Dakin u Hudson, 6 Cow. 221; Latham v. Edgerton, 9 id. 227; Borden v. Fitch, 15 Johns. 121 ; Mills V. Martin, 19 id. 7; Bigelow v. Stearns, id. 39; Goudy v. Hall, 30 111. 109; Whiter. Jones, 38 id. 160; Miller v. Handy, 40 id. 448; Camp- bell V. McCahan, 41 id, 45; Whor- ton V. Morayne. 62 Ala. 201 ; Dynes V. Hoover, 20 How. 65, 80; Shriver V. Lynn, 2 id. 43; Elliott v. Piersol, 1 Pet. 328; Thompson v. Tolmie, 2 id. 157; Wilkinson v. Leland, 2 id. 627; Morris v. Hogle, 37 111. 150; Congar v. Galena, etc., 17 Wis. 477; Miller u. Handy, 40 111. 448; Clark V. Thompson, 47 id. 27; Haywood v. Collins, 60 id. 328 ; Osgood v. Black- more, 59 id. 261; Morse v. Goold, 11 N. Y. 281 ; Jackson v. Babcock, 16 id. 246; Gibson v. Roll, 30 111. 172; Johnson V. Johnson, id. 215; Goudy V. Hall, id. 109; Mason u Messenger, 17 la. 268; Grignon's Lessee v. Astor, 2 How. 338. "^ Ex parte Railroad Co., 103 U. S. 794; Walker v. Turner, 9 Wheat. 638.] COURT S AUTUOKITY SPECIAL. US have their jurisdiction evident by the record when exceeding extraordinary power conferred by statute, whether the court be of general or limited, superior or inferior jurisdiction.^ The rule that "nothing shall be intended to be out of the jurisdic- tion of a superior court but what specially appears to be so " ^ is not against the proposition stated. Attachment, being a special, extraordinary, statute remedy, comes under the rule requiring jurisdictional facts to appear of record, including publication notice, when that is a juris- dictional fact.'' § 638. Exeyxise of general jurisdiction. — When a court of general jurisdiction has exercised general authority to hear and determine, it may be presumed to have had jurisdiction when its authority is collaterally questioned.* It has been held that, after such court has acquired jurisdiction of the vey V. Huggins, 2 id. 267; Hill v. Pride, 4 Call (Va.), 107; Owen v. Jordan, 27 Ala. 608 ; Foster v. Glaze- ner, id. 391 ; Gray v. Reveille, 6 Wis. .59; Harris v. Hardeman, 14 How, 343. iFirebaugh v. Hill, 63 111. 328; Inman v. Allport, 65 id. 540; Dakin t\ Hudson, 6 Cow. 221 ; People v. Koebev, 7 Hill (N. Y.), 39; Cleveland V. Rogers, 6 Wend. 438 ; Harrington V. People, 6 Barb. 607; Commission- ers V. Thompson, 18 Ala. 694; Reeves V. Clark, 5 Ark. 27; Supervisors v. Le Clerc, 4 Chand. 56; Camp v. Wood, 10 Watts, 118; Tift v. Griffin, 5 Ga. 185; Granite Bank v. Treat. 18 Me. 340; Brooks r. Adams, 11 Pick. 441; Jones V. Reed, 1 Johns. Cases, 20; Embury v. Connor, 3 Corastock, 511 ; West r. Woolfolk, 21 Fla. 189. 2 Huxley v. Harrold, 62 Mo. 516; Gates V. Tusten, 89 id. 13, 18. 3 Haywood v. Collins, 60 111. 328; Foyles v. Kelso, 1 Blackf. 215; O'Brien v. Daniel, 2 id. 291; Leach V. S%vann, 8 id. 68; Clark v. Thomp- son, 47 III. 26; Schnell v. City of Chicago, 38 id. 383; Morris v. Hogle, 37 ill. 150; Cariker v. Anderson, 27 id. 358; Rowley v. Berrian, 12 id. 198; Vairin v. Edmonson, 5 Oilman, 270; Lawrence v. Yeatman, 2 Scam. 15: Buckley v. Lowry, 2 Mich. 418; Roelofson v. Hatch, 3 id. 277. In King V. Harrington, 14 id. 532, the court said (p. 541): "Where there is no personal service, the publica- tion of notice is necessary to enable the court to obtain jurisdiction ; and no judgment is valid without it. It has always been required in special proceedings against parties not served or appearing, that the substi- tuted service shall be strictly regular under the statutes. Thompson v. Thomas, 11 ]Mich. 274. And the statute makes proof of publication a prerequisite to the plaintiff's de- claring and proceeding to judg- ment." The case was a collateral attack on an attachment judgment. In Millar v. Babcock, 29 Mich. 526, judgment in an attachment suit, without the notice required by stat- ute, was treated, in a collateral ac- tion, as not merely voidable but void for want of jurisdiction. •* Crane v. Kimmer, 77 Ind. 215, held, wliere judgment of partition 444: juKisDicTioN. [§ 639. parties and of the subject-matter, should there be judgment rendered without a trial, the only remedy would be by ap- peal;^ that, even under such circumstances, the erroneous decree could not be successfully assailed in a collateral action. But a court which has jurisdiction of the subject-matter of the personal suit does not therefore have it in the ancillary attach- ment proceeding; the subject-matter of the former does not include the res of the latter; the defendant may be person- ally in court, yet no lien may be created upon his attached property for want of compliance with statutor}^ requisites. § 639. The presumption is not applicable when a court has exercised special authority,^ even though it be a tribunal of general jurisdiction. The record should show that the pro- cedure was in accordance with statute authorization, and publication notice should affirmatively appear. It ought to appear by the return thereon and the proof thereof, duly entered. When the record supports the jurisdiction, presump- tion favors its rightful exercise in courts of all grades.* But when an attachment case has been tried, and the fact found in the judgment that " publication was dul^^ and legally made on the defendant," it has been sometimes held that the judgment could not be collaterally impeached as void for want of notice.* The state statutes do not all specify minutely in what form the record evidence of publication notice shall ap- pear; and, when they are not pointed, the courts have some latitude of interpretation. When a statute imperatively pre- scribes what shall be conclusive record evidence in an at- tachment suit, courts follow it though the provision may be novel.'' was collaterally attacked, it was pre- Berry, 12 la. 58; Little v. Sinnett, 7 sullied that process had been duly id. 324 ; Mori-ow v. Weed, 4 id. 77. served on all parties. •* Gregg v. Thompson, 17 la. 107 1 Clark V. Lassen Co. Court, 55 Kilnease v. Blythe, 6 Humph. 378 Cal. 199. Cornelius v. Davis, 2 Head, 253 2 Bruhn v. Jefferson Bank, 54 Tex. Gunn v. Mason, 2 Sneed, 637. These 152. Tennessee cases are supei'seded by swells V. Stevens, 2 Gray, 115; Walker v. Cottrell, 6 Bax. 257. Rajniiond v. Bell, 18 Ct. 81 ; Fox v. ^ In New York, under a statute Hoyt, 12 id. 491; Cason v. Cason, 31 making the appointment of trustees Miss. 578; Wall u. Wall, 28 id. 409; " conclusive evidence that the debtor Paul V. Hussey, 35 Me. 97; Fowler therein named was a concealed, ab- V. Jenkins, 28 Pa. St. 176; State v. sconding or non-resident debtor. §§ 6i0, G41.] court's authority special. 445 § 640. "When the statute makes publication (in the absence of service or appearance) a prerequisite to further procedure, proof of publication must appear of record as a jurisdictional fact; and there is no presumption favoring the decree in the absence of record evidence; and the judgment may be treated as void and altogether disregarded in a collateral action against a purchaser claiming title under such judgment for the attaching creditor. This is true wherever the statute ex- ])ressly or impliedly makes publication an indispensable pre- liminary to further procedure; it is jurisdictional; and the omission of it does not render a decree merely voidable but absolutcl}^ void. In such case, a purchaser at a sale of the property under execution is not protected in his title.^ §641. Ejectment suits. — Collateral attacks upon attach- ment judgments by means of ejectment suits against purchas- ers at attachment sales have given occasion to the discussion of the effect of the want of notice, and of the failure of the record to show notice, so far as such effects concern purchas- ers. There is a disposition to protect the purchaser. Doubt- less there are many circumstances under which he should be fully protected from loss when the title he has bought fails for want of some legal proceeding in the case in which it was attached, for which he is in no wise accountable. Doubtless he often should be allowed to recover the purchase-money, and whatever else is necessarv to make him whole, thoutjh he cannot successfuly defend his title. There are very many circumstances which would preclude his being cut off from . . . and that all the proceedings IG id. 117; Clark f. Bryan, 16 Md. previous thereto [to such appoint- 171 ; Johnson v. Layton, 5 Harr. ment] were ?'e(7u/ar," the court held (Del.) 252; Anderson v. Coburn, 27 that irregularities could not be in- Wis. 558; Freeman v. Thompson, 52 vestigated collaterally. No title to Mo. 183; Warner r. Webster, 13 Ohio, property sold under an attachment 505; and the following, not confined judgment was in controversy. Mat- to attachments, but supporting the ter of Clark, 3 Denio, 167, 169. same princijjle: Huls v. Bnntin, 47 iKing V. Harrington, U Mich. 111. 396; Campbell v. McCahan, 41 532; Miller v. Babcock, 29 id. 526; id. 45; Miller v. Handy, 40 id. 448; Haywood v. Collins, 60 111. 328; Hay- Goudy v. Hall, 30 id. 109; Strieker wood V. McCrory, 33 id. 459; Clark r. Kelly, 7 Hill, 10; Foyles v. Kelso, V. Thompson, 47 id. 26; Schnell r. 1 Blackf. 215; O'Brien v. Daniel, 2 City of Chicago, 38 id. 382; Morris id. 291 ; Leach v. Swan, 8 id. 68. V. Hogle, 37 id. 150; Jones v. Jones, 44G JURISDICTION. [§§ C42, 043. recovery under the plea that he bought at his own risk. That subject is not now under the pen. Can he hold the property itself, if the former owner, the attachment debtor, was not present, nor summoned, nor notified in the proceeding under which the property was executed? § G42. It is certain that if the title of the defendant has not been divested as to him, it cannot have been vested in the purchaser. It is also certain that if the proceedings are an absolute nullity as to the defendant, he is not bound to sue out a writ of error to have them declared such. § 643. Suits in different counties. — When suit has been brought in one county, attachments in another may be sued out; but the suit cannot legall}^ be said to be brought unless there has been service upon the defendant, or attachment of property of his, with publication notice. Where a petition is filed but no Avrit nor summons served, or an attachment sued out but no levy made, there is no suit brought. In a suit against two makers of a note, one living in the county where the suit is brought and the other in another state, but having propert}'^ in that where the suit against the first is brought though in a different county, it may be reached by attachment and publication issued in the suit in which the first defendant had been served, where the statute so authorizes;' and where there is no statute authorization of that character, an attach- ment suit against the non-resident, brought b}'^ levy and pub- lication in the county where his property is situated, ought not be prejudiced by the fact that his co-obligor on the note had been personally sued in a different county.^ The court has no jurisdiction when the record does not show service or attachment or garnishment in the county.^ 1 Haywood r. McCrory, 33 111. 459 ; State r. Superior Court, 5 "Wash. 639; Fuller V. Langford, 31 id. 248; Hin- McLoud v. Ellis, 2 id. 117. A mo- man ?•. Rushmore, 27 id. 509. tion to dissolve was sustained in - Cmmty Jurisdictional Bounds. — Iowa because the defendant was The statute of Washington, requir- sued out of his county and the at- ing trial in the county where the tachment served in his county, and attachment is made, is mandatory: then venue changed to his county, so, if trial is about to be had in an- Wasson v. Millsap, 70 la. 348. See other county, the court may be for- Rullman v. Hulse, 32 Kan. 598. But bidden by a writ of prohibition, if the attachment defendant has 3 Johnson v. Johnson, 26 Ind. 441. § t54i.] TERRITOPaAL LIMITS. Wi YI. Tekkitoeial Limits. § 644. As to hoth i)erson and in'operty. — Courts have no extraterritorial jurisdiction over either person or property in attachment suits. Jurisdiction must be over property or per- sons or both. A court cannot take jurisdiction of a personal action against a non-resident who is not cited, but it ma}^ pro- ceed against property of his that is within the state, after publication. One who is within the territorial jurisdiction of a court may be cited to appear, and may be defaulted for non- appearance. After citation, whether he appear or not, a bind- ing judgment may be rendered against him. The power of the court over him does not depend upon his having property within the state. But, on the other hand, if he is non-resident and cannot be cited, the court can proceed only against prop- erty of his within the state. After giving him notice of its seizure, the proceeding may go on against the property to its condemnation. However great the demand, no judgment can be rendered, of binding effect, beyond the value of the property proceeded against to judgment ; and any excess would be coram nonjudice} joined issue in a county in which he does not reside, making no objec- tion to the jurisdiction, a subsequent attaching creditor cannot defeat the first attachment by making the ob- jection. Payne v. Discus (la.), 55 N. W. 483, distinguishing the case last cited above, and also Haller v. Parrott, 82 la. 42. In the case of Haller it was held that the institu- tion of a suit and levy of attachment in a wrong county does not affect the rights of a mortgagee to the chattels seized though the attach- ing creditor had no notice of the mortgage. In Texas, an action for damages may be brought in the county of the seizure or in which the writ was issued, though the defend- ant does not live there. Tex. Rev. Stat., art. 1198; Perry r. Stephens, 77 Tex. 246 ; Baines v. Jemison (Tex.), 23 S. W. 639 ; Gibbs v. Petree (Tex.), 27 §. W. 685 ; Tex. Geri. Laws (1889), p. 48. It has been held that jurisdiction over the garnishee gives jurisdiction over the attachment though the defendant live in another county. Smith v. Mul- hern, 57 Miss. 591 ; Barnett v. Ring, 55 id. 97, distinguishing Cain v. Simpson, 58 id. 521. 1 Boswell's Lessee v. Otis, 9 How. 336 ; Picquet v. Swan, 5 Mason, 35 : Thompson v. Thomas, 11 Mich. 274. "Where there is no personal service, the publication of notice is necessary to enable the court to obtain juris- diction ; and no judgment is valid without it. It has always been re- quired, in special proceedings against yjarties not served or appearing, that the substituted service shall be strictly regular under the statutes. The publication stands in lieu of per- sonal summons." King v. Harring- ton, 14 Mich. 532, 541 ; Clymore v. 448 JURISDICTION. [§§ 645, 04G. § 645. Projyerty present lut dehtor alsent.— There is a pre- sumption that the owner knows of the seizure of his property when it is taken from him personally; and the presumption nas even been extended to cases where property was taken from his agent. More weight is given to this presumption in some states than in others. The owner is sometimes errone- ously said to be brought into court by his property. Publica- tion is, however, required in addition to the seizure of prop- erty, to give the owner such notice as will enable the court to proceed to the condemnation of the thing seized. Seizure of projierty and publication do not give the court jurisdiction over the owner as a party to the suit; both combined consti- tute no service upon him but merely notice to him; and there- fore no judgment binding upon hira personally, susceptible of following him anywhere, entitled to recognition as a judgment in any state, can be rendered. Though the condemnation of the property ought to be respected everywhere (when the ])roceed- ing has been in rem with jniblication notice), the judgment against a person, after publication, and without citation, ought not to be recognized as a personal judgment in any state — not even in that of its rendition.^ Courts in each state must give "full faith and credit" to the judicial proceedings of every other state, provided the proceedings are by courts hav- ing jurisdiction — and there may always be inquiry with re- spect to jurisdiction.^ § 646. Fo}'eign judgments. — Courts may go so far in the in- quiry concerning the jurisdiction of other courts beyond the state limits, when asked to recognize and enforce judgments Williams, 77 111. 618 ; Fitzsiramons v. Webster v. Reid, id. 437 : McElmoyle Marks, 66 Barb. 333; Miller r. Dun- v. Cohen, 13 Pet. 312; La Fayette gan, 36 N. J. L. 21 ; Livingston v. Ins. Co. r. French, 18 How. 404 ; Smith, 5 Pet. 89; Eicketts v. Hender- Rose v. Himely, 4 Cr. 269; Harris r. son, 2 Cr. C. C. 157; Lincoln v. Hardeman, 14 How. 334; Christmas Tower, 2 McLean, 473; Boyd v. v. Russell, 5 Wall. 290; Elliott v. Urquhart. 1 Sprague, 423 ; Warren Piersol, 1 Pet. 328 ; United States v. Manuf. Co. v. Etna Ins. Co., 2 Paine, Arredondo, 6id. 691 ; Voorhiesr. Bank 502. of U. S., 10 id. 475; Wilcox v. Jack- 1 Smith V. Cutchen, 38 Mo. 415; son, 13 id. 511; Sluiver's Lessee v. Darrance v. Preston, 18 la. 396 : Lynn, 2 How. 59 : Hickey's Lessee v. Hakes v. Shupe, 27 id. 465; Mitch- Stewart, 3 id. 762; Williamson v. eirs Adm'r v. Gray, 18 Ind. 123. Berry, 8 id. 540. - D'Arcvv. Ketchum, 11 How. 165 ; § 6-17.] TEKRITORIAL LIMITS. 4i9 there rendered, as to allow evidence contradictory of juris- dictional facts stated in the record.^ Even when the proceed- ings under inspection are in the form of a personal action, they can only be sustained in the absence of personal citation or appearance, where they are really in rem and there have been seizure and publication, and the court rendering judg- ment has had jurisdiction over the thing by having possession of it. And the record must show the jurisdictional facts es- sential to the sustaining of the decree; - for, though the record is not absolutely'' conckisive beyond susceptibility of bein'g contradicted in its affirmation of such facts, there can be no proof to sustain jurisdiction when those facts do not affirma- tively appear of record. In other words, should the record show publication, the fact may be investigated in a collateral proceeding and may possibly be disproved; but, should the record of an attachment suit fail to show service, publication or appearance, or fail to show that affidavit was made and all statutory requisites observed, and the judgment should be col- laterally assailed, no evidence would be admissible to prove publication or supply any of these fatal omissions. § 647. Foreign record assailahle. — If a judgment shows the necessary jurisdictional facts, and it is collaterally assailed in a state other than that in which the judgment was rendered, the assailant may introduce evidence to disprove the record and contradict the jurisdictional facts stated therein as hav- ing been passed upon judicially. In the language of Mr. Justice Bradley: "If it is once conceded that the validity of a judgment may be attacked collaterall}^ by evidence showing that the court had no jurisdiction, it is not perceived how" any allegation contained in the record itself, however strongly made, can affect the right so as to question it. The very ob- ject of the evidence is to invalidate the paper as a record. If that can be successfully done, no statements contained therein can have any force. If any such statement could be used to prevent inquiry, a slight form of words might alwa3^s be adopted so as effectually to nullify the right of such inquiry. 1 Thompson v. Whitman, 18 Wall, buck v. Murray, 5 Wend. 156; 457. Christmas v. Russell, 5 Wall. 290; 2 Harris v. Hardeman, 14 How. 334 ; Elliott v. Piersol, 1 Pet. 328, 340. Borden v. Fitch, 15 Johns. 141 ; Star- 29 450 JURISDICTION. [§ G4S. Recitals of this kind must be regarded like asseverations of good faith in a deed, \A'hich will avail nothing if the instru- ment is shown to be fraudulent. The records of the domestic tribunals of England and some of the states, it is true, are held to import absolute verity as well in relation to jurisdic- tional facts as to all other facts, in all collateral proceedings. Public policy and the dignity of the courts are supposed to require that no averment shall be admitted to contradict the record. But, as we have seen, that rule has no. extraterritorial force." ^ If the assailant offer evidence tending to disprove the juris- dictional facts of the record offered in a state other than that in which the judgment was rendered, it is obvious that the other party may combat such -evidence and sustain the facts which the record recites. §048. Courts no aHtlwritjf, trlicu. — Jurisdiction over per- sons and propert}', in any state, is confined to the persons and property within the territorial bounds of the state. No court within it can exercise jurisdiction beyond it. To exercise it over persons or property in another state would be an unwar- rantable assumption and arrogation of unlawful authority, en- titled to no respect on the principle of comity, but meriting rebuke and resistance as wanton abuse of power.- A judg- ment rendered in any state against a person or property over which the court has no jurisdiction is not entitled to " full faith and credit" in other states, but its validity may be ques- tioned on jurisdictional grounds, and its enforcement resisted;^ for, not being by due process of law, it is entitled to no re- gard, even in the state where it is rendered; and it may be impeached collaterally anywhere."* 1 Thompson v. Whitman, 18 Wall. Harper, 126; Young t\ Young, 2 Hill, 468. 425. 2 D'Arcy v. Ketchura, 11 How. 3 Constitution, Fourth Amend- (U. S.) 165. Compare Kahn v. Sip- ment. pili, 35 La. Ann. 1039. An admin- * Wilcox v. Jackson, 13 Pet. 511; istrator who cannot sue for chattels Shriver's Lessee v. Lynn, 2 How. of the estate beyond the state lines 59 ; Hickey's Lessee v. Stuart, 3 id. cannot maintain attachment of 762; McElmoyle v. Cohen, 13 Pet. them. Stevenson V. Dunlap, 33 S. C 312; Williamson v. Bei'ry, 8 How. 350; Regenstein v. Pearlstein, 30 id. 540; D'Arcy v. Ketchum, 11 id. 165; 194; Weyman, Ex'r, v. Murdock, Thompson v. Whitman, 18 Wall. §§ 6-19- G51.] TEKKITOKIAL LIMITS. 451 §649. State' s limitation. — ISTo state in the Union has au- thorit}'^ beyond its bounds in any of its departments; and therefore it can confer none upon its judiciary. As the power of the United States government is limited to its own terri- tory (except on the high seas, in common with the govern- ments of other nations, and such rights and powers as it has under international law), so the power of any single state is without extraterritorial authority. As well might the United States attempt to authorize its tribunals to adjudicate upon persons or property abroad as for any state to attempt it upon persons or property in another state. § 650. Federal courts limited. — Since jurisdictionless judg- ments rendered against persons or property beyond state bounds are coram nonjitdice within the state where they are rendered as well as beyond, it follows that federal courts sit- ting therein are not obliged, indeed are not at libert}^ to give effect to them. Federal courts are not foreign tribunals in relation to the courts of the state in which they may be sit- ting, but they have a separate jurisdiction; they observe the laws of the state in which they sit, though they derive their authority from a source exercising different and special powers of sovereignty. But there is nothing in the exceptional way in which they are constituted, nor in their relation to the state in which they may be sitting, nor to its laws, which war- rants them in giving effect to judgments rendered in disre- gard of jurisdictional requisites. §651. Statutes void when. — Even if a state has passed a statute authorizing its courts to take jurisdiction of personal actions against debtors or others who cannot be reached by process, or of property actions when the property cannot be seized actually or constructively; and if the courts proceed 457; Eaton v. Badger, 33 N. H. 238; roe (Ky.), 434; Phelps v. Holker, 1 Carleton v. Washington Ins. Co., 35 Dall. (Pa.) 261; Hitchcock v. Aicken, id. 162; Webster v. Reed, 5 Wend. 1 Caines(N. Y.), 460; Miller v. Sharp, 156; Bissell v. Briggs, 9 Mass. 462; 3 Randolph (Va.), 41; Hopkirk v. Commonwealth v, Greene, 17 id. 514, Bridges, 4 Hening & Munford (Va.), 545; Hunt v. Johnson, Freeman 413; Smith v. Cutchen, 38 Mo. 415; (Miss.), 282; Kibbe v. Kibbe, Kirby Darrance v. Preston, 18 la. 396; rCt.), 119; Maude v. Rhodes, 4 Dana Hakes v. Shupe, 27 id. 465; Mitch- (Ky.), 144; Austin v. Bodle, 4 Mon- ell's Adm'r v. Gray, 18 Ind. 123. 452 juKiSDiCTioN. [§§ 652, 653. accordingly and render judgments, such judgments are not to be regarded by the courts of other states, nor b}'^ federal courts sitting within the state, nor by courts of the state itself, for the reason that no state can exercise power beyond its bounds, nor conclude persons or property beyond them. Such stat- utes have been passed ; such power has been assumed and ex- ercised, in more than one state, though very rarely. Courts have been thus nominull}' authorized to take cognizance of personal actions against non-residents, after publication notice, without personal summons, personal appearance, or attach- ment of property; but the supreme court of the United States has decided such proceedings under such a statute to be juris- dictionless, null and void.^ §652. Attaclimnit different from execution. — The practice of proceeding by personal action against a non-resident debtor, after notice by publication, with the view to reach his prop- erty thereunder, situated within the state, by execution fol- lowing judgment, has been defended in this way: "Attach- ment," say its defenders, " is nothing more than a preliminary seizure to aid iinal execution; it is as effective, when made after judgment, as if made before, provided the property re- mains within the jurisdiction so that it can be found; it may be subject to the payment of its non-resident owner's debt if attached preliminarily and the debtor notified by publication; and why may he not be notified by publication without any preliminary attachment, and the proceeding go on to judg- ment to be followed by a writ oijieri facias? " The answer is that attachment is something more than a preliminary seizure to aid execution, if the debtor be not per- sonally served and does not appear. It is, in such case, an act essential to jurisdiction. The publication notice does not bring the debtor into court, but attachment, validly laid, brings his property into court. § 653. Is the record of a judgment of a court in another state entitled to full faith and credit, under article 4, section 1, of the constitution of the United States, only when the court had jurisdiction of the parties? May a defendant, when sued 1 Peunoyer v. Neff, 95 U. S. 714 — the case involving a statute of On - gon. § 654,] juKisDicTiox i:n' garnishment. 453 upon a judgment rendered in another state, plead and prove that he was not there served with process? Ko — if there was process against his property and he had notice.^ To the rule of comity there is this exception : no court is bound to execute judgments rendered in other states when their enforcement would be violative of the policy or the juridical morality of its own state. YII. Jurisdiction in Garnishment. § 654. " Garnishment is a species of proceeding in rein^ in the nature of sequestration of the debtor's effects. Unless the prop- erty is within the jurisdiction of the court issuing the garnish- ment so that it may be seized {i. e., attached in the garnishee's hands), jurisdiction neither of the i^es nor the person can be ac- quired." ^ It is held in Texas that when the defendant is non- resident, garnishment confers jurisdiction to render judgment against a credit acknowledged bv the garnishee,' but the court there has no jurisdiction when the garnishee does not answer, unless proof of his indebtedness be made.* And there must be publication to give the defendant his offer of his day in court before jurisdiction can be acquired under such circum- stances. It is said in Missouri that if the defendant is not personally served and does not appear, the answer of the gar- nishee does not give jurisdiction when the return of the gar- nishee summons is invalid;^ and if it is without defect, there can be no jurisdiction to hear and determine the cause against such non-served and non-appearing defendant, unless he has. been notified so that he may be presumed to know of his ^ See Oilman v. Oilman, 126 Mass. 3 Goodman v. Henly, 80 Tex. 499. 26 ; but the question was not whether ^Haggerty v. Ward, 25 Tex. 144. a judgment duly rendered in a state ^ Gates v. Tustin, 89 Mo. 13 , Haley other than Massachusetts, in a pro- v. Railroad Co., 80 id. 112; Norvell ceeding tJi rem, would be entitled to v. Porter, 62 id. 309; Maulsby v. full faith and credit. Farr, 3 id. 439; Epstein v. Salorgne, 2 Alabama, etc. R. Co. v. Chumley, 6 Mo. App. 352 ; Connor v. Pope, 18 92 Ala. 319; Central, etc. R. Co. v. id. 86. See Phelps v. Boughton, 27 Carr, 76 id. 388; Smith v. Railroad La, Ann. 592; Hebelu. Insurance Co., Co., 33 N, H, 337; Green v. Bank, 25 33 Mich. 400. Ct. 452; Keating v. Refrigerator Co., 32 Mo. App. 293. 454 jUEiSDicTioN. [§ 654. peril and have his opportunity to defend. To sum up in a word: garnishment alone gives no jurisdiction over either the defendant or his property. Though both the attaching cred- itor and the garnishee reside in the state, publication to the non-resident defendant is necessary to jurisdiction so that his property in the garnishee's hands, or a debt due him from the garnishee, may be held.* 1 Berry r. Davis, 77 Tex. 191; Nye 11 Fos. 201; Erskine v. Staley, 12 V, Lipscomb, 21 Pick. 261; Tingley Leigh, 406; Jones v. Comings, 6 V. Bateman, 10 Mass. 345; Brashear N. H. 498. See Merchants,' etc. N. V. West, 7 Pet. 620; Young v. Ross, Bank v. Glue Co. (Pa.), 30 A. 290. CHAPTER XYII. ATTACHMENT PROCEEDINGS IN COURT. I, Special Appearaxce of the Defendant g§ 655-663 II. General Appearance 664-668 III. Withdrawal of Attorneys — Effect on Previous Ap- pearance 669-671 IV. Proceedings to Vacate Attachment — In General . 672-685 V. Quashing for Errors Patent 686-699 VI. Dissolution on Evidence Beyond the Record . . . 700-710 Vn. Traverse After Dissolution by Bonding .... 711-718 I. Special Appeakaxce of the Defendant. § 655. The law governing the appearance of the defendant in attachment suits is much the same as in other classes of cases, and therefore authorities on the subject may be prop- erly drawn from decisions upon the general practice as well as from those concerning the distinct subject of this treatise. Appearance is either special or general. Special appearance is the coming of the defendant into court and making entry on the record of the purpose for which he appears, which must be something less than defend- ing the suit upon its merits. Whether previously served with summons or not; whether a publication notice has been made or not, the defendant may voluntarily appear either specially or generally. § 656. Purpose and use. — The usual purposes of special ap- pearance are to quash the proceedings for irregularities patent upon the record, to except to the jurisdiction, and even to set aside judgments rendered by default or otherwise on the ground of want of jurisdiction. The advantage of a special appearance to the defendant is in the opportunity which it gives him to object m limine to irregularities without being prejudiced in consequence when he comes to answer to the merits.^ He may succeed thus in 1 Petty V. Frick Co., 86 Va. 503. merits, when his motion to quash Even if he afterwards y)leacl to the has been overruled, he does not thus 45G ATTACHMENT PKOCEEDINGS IX COURT. [§§ 657, 658. defeating the action at its threshold; but, if unsuccessful, he may either sta}'' out of court and risk the almost certain re- sult of being defaulted, or he may regularly appear and de- fend upon the merits, reserving the questions previously over- ruled when they concern jurisdiction (except such jurisdictional matters as are waived by answer), or when the practice of his state allows such reservation of other points decided in limine. § 657. He is not deemed a personal party to the suit bv reason of his special entr\^ of record for any of the purposes above mentioned, if he confines himself to them in his mo- tion. For instance, he mav move to quash for reasons ap- parent on the face of the papers without subjecting himself to all the consequences of becoming a party to the suit to which he may not even have been summoned or notified; or, if sum- moned, to which he has not responded as a party by coming unconditionally into court.^ By such appearance he does not assent to, or cure, any want or defect of summons or other errors of the proceeding.- Even if the defendant makes a special appearance to appeal the case, he thus makes no waiver of objection to the service.^ §658. Objection to jurisdiction.— ^hen the defendant ap- pears to object to the jurisdiction because he was not served, or not properl}' served, he cannot be held as thereby respond- ing to the summons and submitting to the jurisdiction ; ^ but if he appears to object to the jurisdiction on other grounds than want of summons, there is a w^aiver as to the summons.'^ Un- waive his objections. Harkness r. 154; Stanley r. Arnow, 13 Fla. 361; Hyde, 98 U. S. 476. National Furnace Co. v. Mobile Iron iLane v. Leech, 44 Mich. 163; Works, IS Fed. 863. Bushey v. Raths, 45 id. 181; Lor- ^Martin v. Thierry, 29 La. Ann. ing V. Wittich, 16 Fla. 617; Johnson 362. V. Buell, 26 111. 66; Blackwood v. * Lee v. O'Shannessy, 20 Minn. Jones, 27 Wis. 498 ; Pry u Hannibal 173; Covert v. Clark, 23 id. 539 & St. Jo. R. R. Co., 73 Mo. 123; Michels v. Stork, 44 Mich. 2; Cedai Evans v. King, 7 id. 411 ; Whiting Hill, etc. Mining Co. v. Jacob Little, V. Budd, 5 id. 443: Moore v. Dicker- etc. Mining Co., 15 Nev. 302; Mur- son, 44 Ala. 485; Bonner v. Brown, phy v. Ames, 1 Mon. 277: Potomac 10 La. Ann. 334; Crary v. Barber, 1 Steamboat Co. r. Clyde, 51 Md. 174. Col. 172; Manice v. Gould, 1 Abb. Heffner r. Gunz. 29 Minn. lOS. Pr. (N. S.) 255. ^Chmch v. Grossman, 49 la. 444 2 Rodolph V. Mayer, 1 Wash. Ter. Peufield v. Harris (Tex. Civ. App.) 27 S. W. 763. § 659.] SPECIAL APPEARANCE OF DEFEXDA^StT. 457 less the record shows that the defendant means to confine himself to the question of jurisdiction, he will be deemed in court for general purposes when he pleads to the jurisdiction ; ^ but an unserved defendant may, with proper reservation en- tered, specially appear and even move to set a default aside without rendering himself liable to the rendition of a final personal judgment against him.^ For the object is to correct the error of pronouncing default without citation, and " it can hardly be claimed that by making the objection he cures the very defect complained of."^ Objection for want of serv- ice is exception to jurisdiction; and the defendant may after- wards plead to the merits without prejudice. The objection is waived only when he so pleads in the first instance without insisting on the absence or illegality of service.* Though he should specially appear after judgment and move to strike the case from the docket for want of service, he would not thus cure defects nor make the void decree a valid one;'^ but the result has been held to be otherwise upon general appear- ance after judgment.® § 659. A general appearance does not preclude setting up want of jurisdiction in the answer,'^ except when the jurisdic- tional objection is susceptible of being waived.^ It has been held that a defendant, notified by publication, may appear and move for a new trial, after the decree has been entered against his property, without thus giving the judgment a per- sonal character.^ The reason assigned was that " the judg- ment, being m i^em, had binding force only against the at- tached property; that upon such judgment the property of the defendant other than that which was attached could not 1 Aultman v. Stinan, 8 Neb. 109. 23 Minn. 539. (-See Curtis v. Jack- 2Boals V. Shules, 29 la. 507; Jones son, id. 268.) V. Byrd, 74 111. 115; Klemm v. 6 Anderson u. Coburn, 27 Wis. 558, Dewes, 28 id. 317. 564. 3 Boals V. Shules, 29 la. 507-509. ^ Wheelock v. Lee, 74 N. Y. 489 ; ^Harkness v. Hyde, 98 U. S. 476; Landers r. Staten Island R. R. Co., Stanley v. Arnow, 13 Fla. 361 ; Black 53 id. 460 ; Brown v. Saratoga R. R. V. Clendenin, 3 Mont. 44. Co., 18 id. 495; Dn Puy v. Strong, 5 Dorr V. Gibboney, 3 Hughes C. 37 id. 272. C. 382; Potomac Steamboat Co. v. svarner v. Radcliflf, 59 Ga. 448; Clyde, 51 Md. 174 ; Covert v. Clark, Crowell v. Galloway, 3 Neb. 215. 9 Mayfield v. Bennett, 48 la. 194. 458 ATTACHMENT PROCEEDINGS IN COURT. [§§ 660, 661. be sold, nor does the judgment operate a lien thereon. . . . Banta v. "Woods, 32 la. 469. There were no defects in the judgment to be cured. It was a judgment in lem^ and had no other force or effect. The appearance of the defendant, by filing a petition to vacate it, does not, in the absence of any action upon his petition, give the judgment more force, or make it different from what it was before. If it was in rem only, it so remained after the petition to set it aside was dis- missed." § 660. Wlien (q)pearance, nominally sjyecial, is general. — An appeal may be taken — the defendant specially appearing therefor — without Avaiving objection to service;^ though ap- pearance for that purpose has been held to be a general one.^ One who specially enters his appearance on the record to object to the jurisdiction of the court will be held to have made a general answer if it is in any respect responsive to the merits.* § 661. Should he plead prescription, he will be deemed to have made a general appearance, however he may have made his entr3\* Should he ask for default, he will be treated as a general appearer, though he may have entered himself as ap- pearing specially to contest the sufficiency of service.'^ Should he move for a stay of proceedings to give him time for an- swering, he would be a general appearer ; and he waives all defects in the service of process." Should he file a demurrer and obtain leave to answer, he would make a general appear- 1 Martin v. Thierry, 29 La. Ann. v. Swineford, 28 Wis. 257; Keeler v. 363. Keeler, 24 id. 523; Upper Mississippi 2Wasson v. Cone, 86 111. 46; City Transportation Co. v. Whitaker, 16 of Alton V. Kirsch, 68 id. 261. id. 220; Tallman v. McCarty, 11 id. ^Re Macauly, 87 Hun, 577; Handy 401 ; Stonach v. Glessner, 4 id. 275; V. Insurance Co., 37 Ohio St. 366-9. Adams Express Co. v. Hill, 43 Ind. 157. See Barnett v. Rayburn (Tex. Civ. In Pennsylvania the defendant's ap- App.), 16 S. W. 537. pearance de hene esse is conditional. * Miller v. Whitehead, 66 Ga. 283. If the summons be returned "served" But even a general appearance by it is general, but otherwise special, attorney is not retroactive to avoid Blair v. Weaver, 11 Serg. & Rawle, prescription previously acquired. 87. "Such an appearance is pecul- Etheridge v. Woodley, 83 N. C. 11. iar to Pennsylvania practice. It is 5 Pry V. Hannibal & St. Jo. R. R. not found in the English practice." Co., 73 Mo. 133. Rolard v. Mason, 66 Pa. St 138, 140. <> Insurance Co. of North America See Baldwin v. McClelland (III.), 36 N. K 143. § 662.] SPECIAL APPEAEANCE OF DEFENDANT. 459 ance.^ Should he ask a continuance,- or consent to one,' with- out reservation, the effect is general. Though the debtor may make his first appearance for the purpose of suing out a writ of error, yet if the case should be remanded he may be considered rn court, and a trial ma}'' be had contradictorily with him.* A special appearance to con- test the jurisdiction of the court does not confer jurisdiction upon the court over the appearer as defendant in the suit."^ But it has been held that if a non-resident appears to except specially to the jurisdiction, yet files an answer to the merits, averring therein that he answ^ers only in the event of the overruling of his special plea to the jurisdiction, he thus makes a general appearance.'' It is held that he may appear in garnishment proceedings to claim property as exempt and not give jurisdiction in the main action.' § 662. SeJative to notice. — The sufficiency of notice cannot be questioned b}^ the defendant after he has responded to it by making appearance.^ Xor can he complain that he has re- ceived no notice of proceedings against a garnishee, if he has come into court personally or by attorney without making- objection.^ ISTotice to him of the garnishment is jurisdictional when required by statute.^'^ Besides the absence or illegality of summons or notification, patent defects in the affidavit, the bond, the writ and the re- turn are fruitful sources of objections that may be made upon special appearance. Such objections are often interposed after general entry, before answer to the merits, but they may be set up specially by the defendant without making himself a party to the suit for all purposes. 1 Miller v. State, 35 Ark. 276; Cragin, 3 Dill. 474; Toland v. Myers v. Smith, 29 Ohio St. 120. Sprague, 12 Pet. 300. 2 Lane r. Leech, 44 Mich. 163. 6 Grizzard v. Brown, 2 Tex. Civ. 3 Miller v. State, 35 Ark. 276. App. 584. See York r. State, 73 Tex. 4Reaugh v. McConnel, 36 111. 373. 657; Same title, 137 U. S. 15; Sam 5 Branner v. Chapman, 11 Kan. v. Hochstadler, 76 Tex. 162. 118; Heffner v. Gunz, 29 Minn. 108; ^ Weber v. Cordes (Wis.), 58 N. W, Covert V. Clarke, 23 id. 539 ; Lee v. 771. O'Shannessy, 20 id. 173 ; Potomac « Williams & Bruce v. Stewart, 3 Steamboat Co. v. Clyde, 51 Md. 174; Wis. 773. Harris v. Hardeman, 14 How. 343; 9 Everdell v. Sheboygan, etc. R. R. Des Moines & Minn. R. R. Co. v. Co., 41 Wis. 395. Alley, 103 U. S. 794. See Nazoo v. lo Williams v. Williams, 61 Li. 612. 460 ATTACHMENT PKOCEEDINGS IN" COURT. [§§ 663, 664:. § 663. When the objections of a special appearer have been overruled, and he does not then answer to the merits, he is treated as not in court, and may, at the proper time, be de- faulted for non-appearance ^ (if he has been cited or notified), just as though he had not been in court in any capacity. II. General Appearance. § 664:. Unqualified entry. — Appearance is always deemed general when it is unqualified. If the defendant files pleas virt- ually admitting the service of the writ, and goes to trial with- out objection, his appearance is general.'^ When the defendant pleads general denial, the plaintiff may omit offering the writ in evidence without affording ground for reversing the judgment afterwards rendered in his favor. If the validit}'^ of the writ is to be questioned, it must be by special plea, in Texas.^ If the defendant has replevied the attached goods from the officer, and has caused a traverse of the plaintiff's affidavit, it is held that he cannot deny service of the attachment.'* If he do not plead, there ma}'' be judgment against him, and he and his sureties will be liable on the replevin bond.^ When appearance is not entered as special or conditional, the defendant cannot afterwards be permitted to prove by parol evidence that his appearance was thus limited.^ But it ma}^ be qualified by the terms of an application to the court, though there be no express reservation confining appearance to the purpose of the application. For instance, if an unserved de- fendant applies to a state court for removal of a cause to a federal court, he is not to be deemed as assenting to the juris- diction of the former, though he could hardly deny it in the latter in case of removal thither on his own application.'' 1 Loring v. Wittich, 16 Fla. 617. 80 Tex. 216, limiting Latham v. Sel- 2 Rosenberg v. Claflin, 95 Ala. 249 ; kirk, 11 id. 314. Hutcheson v. Powell, 93 id. 619; * S. C. Herbst Im. Co. v. Burnham, Andrews v. Mundy, 36 W. Va. 22; 81 Wis. 403. Elliott V. First N. Bank, 2 Col. App. ^ Vogt v. Dorsey, 85 Tex. 90; Rev. 164 ; First N. Bank v. Greenwood, 79 Stat. Tex., arts. 170, 180, 181. Wis. 269. 6 Collier v. Falk, 66 Ala. 223. ^Fort Worth, etc. Co. v. Hitson, ■? Schwab v. Mabley, 47 Mich. 512, 515 — a case in equity. §§ G65, G66.'] GENERAL APPEARANCE. 461 §665. Waive?'. — The rule is (applicable to attachment as well as other suits), that a general appearance waives all irregularities that are not jurisdictional/ and it waives such jurisdictional objections as are susceptible of being waived: such as that of non-residence. If one would confine himself to an objection of that character, though jurisdictional, he must make a special appearance.' When the defendant comes to test the truth of the affidavit, he is in court for all purposes.' § 6(j6. a general, voluntary, unconditional appearance is equal to the personal service and return of summons.* It is so, even thous^h the defendant should afterwards withdraw his appearance, or attempt to do so; for the effect of appear- ing would be the giving of jurisdiction over him as a personal party, so that judgment need not be confined in its operation to the property attached.^ It waives defects and irregulari- ties of the previous proceedings.^ It waives all objections to the summons and service," whether the general appearance is personal or by attorne3\^ 1 Hammond r. Starr, 79 Cal. 556 ; Wing V. Bradner (Pa.), 29 A. 291 ; Blyler v. Kline, 64 Pa. St. 130: Hart V. Smith, 17 Fla. 767; Colien v. Trowbridge, 6 Kan. 385; Shuster v. Finan, 19 id. 114; Williams v. Stew- art, 3 Wis. 773. Answering to the merits waives a plea in abatement in an attachment case, in Missouri. Audenreid v. Hull, 45 Mo. App. 202. Objections to the writ are waived when attachment is opposed on other grounds only. Wolf v. Cook, 40 Fed. 432. 2Crowell V. Galloway, 3 Neb. 215; Varner v. Radcliff, 59 Ga. 448. ^Greenwell v. Greenwell, 26 Kan. 530; First N. Bank v. Greenwood, 79 Wis. 282; Williams v. Stewart, 8 id. 773 ; Roy v. Union Co. (Wyo.), 26 P. 996. 4 Christal V. Kelly, 88 N. Y. 285. Here, after two defendants had ap- peared and filed a plea and given an undertaking,- the summons was amended by inserting the name of a third defendant. He voluntarily appeared; and when judgment was given against the three defendants, the sureties were held bound by the undertaking executed before the amendment of the summons. Catlin V. Ricketts, 91 N, Y. 668. Supporting the general statement of the text: Fuller V. Beck, 46 Hun, 519; Catlin V. Ricketts, 91 N. Y. 668. 5 Creighton v. Kerr, 1 Col. T. 509 ; Blackwood v. Jones, 27 Wis. 498. 6 Carpenter v. Central Park, etc. R. R. Co., 11 Abb. Pr. (N. S.) 416; Brown v. Balde, 3 Lans. (N. Y.) 283; Williams v. Stewart, 3 Wis. 773; Greenwell v. Greenwell, 26 Kan. 530. ■7 Fuller V. Beck (N. Y.), 15 N, E. spomeroyu. Ricketts, 27 Hun, 242; Ind. 5; The Floyd County Ag. and Everdell v. Sheboygan R. R. Co., 41 Mechan. Association v. Tompkins, 23 Wis, 395 ; Rowland v. Coyne, 55 Cal. id. 348 ; Wiley v. Pratt, id. 628 ; Bush 1 (but see Douglass v. Habestro, 58 v. Bush, 46 id. 70 ; Collins v. Rose, 59 How. Pr. 276); Hall v. Palmer, 8 id. 33. 403 ATTACHMENT PROCEEDINGS IN COURT. [§§ 667, 66S. § (jQ7. The objection to an attachment bond which had but one surety though the statute required two was held to have been waived by the defendant's general appearing, answering and bonding of the attached property.^ Bonding, or acknowl- edgment of the service of the attachment suit, authorizes a general judgment against the defendant.^ Though the attach- ment should be subsequently dissolved, the acknowledgment of service by the defendant will enable the plaintiff to prose- cute the personal suit to judgment.^ When the defendant executes and files a forthcoming bond, he makes a general appearance,* and so if he files a bond to dissolve. If the property is released to him on condition that he shall appear and answer and give security, he waives cita- tion.^ By a motion to dissolve on the ground that the plaint- iff's affidavits for attachment were false, the defendant tacitlv waived all objection to irregularity of service." The waiver, by all parties litigant, of objection to the service of the writ by an unauthorized ofBcer, cuts off complaint by subsequent judgment creditors.^ §668. Authorizing entry. — The defendant himself must have authorized the entry of his appearance, or it will be of no avail. Minutes of the clerk will not be held to include a person not cited under the term " defendants," when there are such in court, by the entry that they had come into court by their counsel and submitted their cause.^ If general ap- 396; Halett v. Nugent, 71 Mo. 13; son v. Patterson. 6 How. (Miss.) 193; Adams Express Co. v. Hill, 43 Ind. Wright v. Oakey, 16 La. Ann. 125. 157; Womack v. McAhren, 9 id. 6; See Hazlitt v. Morrow (N. J.), 26 A. Braytou v. Freese, 1 id. ISl; Bury 885; Leeds v. Mueller, 51 N. J. L. V. Conklin, 23 Kan. 460; Baldwin v. 467; Davis v. Mahoney, 38 id. 104; Murphy, 82 111. 485 (The People v. N. J. Revision, p. 54, § 65. Barnet, 91 id. 422; The People v. 3 id. Bradley, 60 id. 390: mawdamifs cases); * New Haven Co. r. Raymond, 76 Bowen v. School District, 10 Neb. la. 225. 265; Louisville, etc. R. R. Co. v. ^ Williams r. Gilkerson (La. Ann.), Nicholson. 60 Ind. 158; Bradford n 13 So. 394; Rathbone v. London, 6 Coit, 77 N. C. 72. See Spettigue v. La. Ann. 440 ; Bush v. Downing, 24 Button, 9 Pa. Co. Ct. 156. id. 272. 1 Bryant v. Hendee, 40 Mich. 543. ^ Hillyer v. Biglow, 47 Kan. 473. - Buice V. Lowman, etc. Co., 64 Ga. ' Walter v. Bickham, 122 U. S. 320. 769; Blyler v. Kline, 64 Pa. St. 130; ^ Fee v. The State ex rel. Pleasant, Peebles v. Weir, 60 Ala. 413 ; Rich- 74 Ind. 66. ard V. Mooney, 39 Miss. 357 ; Wilkin- § QGO.] WITHDRAWAL OF ATTOENEYS ITS EFFECT. 463 pearance has been entered b}^ mistake or fraud, it may be set aside.^ If a teller, cashier or other minor officer or any per- son appears for a corporation, it will not be bound unless he was previously authorized, or his action afterwards ratified.^ III. Withdrawal of Attorneys — Its Effect on Previous Appearance. § 669. Not effective. — When a defendant has appeared by attorney he cannot put himself out of court by his own volition tion ; nor will the withdrawal of his attorney from the case have the effect of relieving the defendant from the responsi- bility as a party which the appearance has created. If the attachment debtor has not been served ; if he has not been notified by publication upon failure of summons; if the stat- ute requires, upon such failure, that there must be not only advertisement in the newspapers, but written notice mailed to the debtor beyond the state bounds, and these requirements have been neglected, still he is deemed to be in court if an attorney has appeared generally for him. And if, before plea filed, the attorne}'- should withdraw, the defendant will be in court; the waiver of summons and notice and postal commu- nication will be unaffected by the withdrawal, and he will be liable to default. The effect of general appearance, whether by the debtor in proper person or by his attorney, is to render the suit a per- sonal one with the attachment proceeding ancillary thereto. The supreme court say, in general terms, that such appear- ance converts " into a personal suit that which was before a proceeding ^V^- reinr ^ 1 Allen V. Coates, 29 Minn. 46. as required by the territorial statute - Branch Bank v. Poe, 1 Ala. 396 ; of Colorado, where the case arose. Head V. Merrill, 34 Me. 586; Oliver Attorneys appeared for the debtor, V. C. & A. R. R. Co., 17 111. 587; Cal- but withdrew before pleading. Both lahan v. Hallowell, 2 Bay (S. C), 8; the proceeding in rem and that in Baltimore & Ohio R. R. Co. v. Galla- personam were evidently dependent hue, 12 Gratt. 655. upon the waiver of summons and ^Creighton v. Kerr, 20 Wall. 8, 12. notice. Neither could have resulted In this case there had been no sum- in valid judgment without the debt- mons, nor publication and postal or"s appearance when the statutory communication in default thereof, requirements had been disregarded. 4G4 ATTACHMENT PKOCEEDINGS IN COURT, [§§ 670, 671. § 670. " Witliout prejudice.'''' — Express mention in the with- drawal that it is without prejudice to the plaintiff, after a rule to plead has been entered, leaves the plaintiff in possession of the rights acquired by the appearance: hence, should the rule be disregarded, he may take default against the defendant.* Without such expression the defendant could be defaulted for not pleading. Must the case be delayed because the defend- ant has no attorno}'" in court? Must the plaintiff suffer be- cause of such neglect by the^lebtor, who is now a party to the suit? Whether the withdrawal of the attorne3'^s w^ho have appeared for him in court be " without prejudice to the plaint- iff" or otherwise, the result is the same. Under such circumstances the judgment may be for more than the sum claimed in the affidavit if more has been sued for in the declaration (though privilege could be awarded only for the amount in the affidavit); and the reason is that the WMthdra\val of the attorneys is not the withdrawal of their client, who remains liable to have a personal judgment ren- dered against him.' § 671. The withdrawal of a plea does not leave a case as though there had never been any pleading. Its filing may have been the defendant's first appearing in the case. Its un- conditional withdrawal cannot destroy the effect of that ap- pearance.* After general appearance by attorney the defend- ant is in the position he would have occupied if personally summoned,* Special appearance may be withdrawn without such result,^ 1 Id, The court were deciding a s Eldred v. Bank, 17 Wall, 551 case in which the withdrawal of the Lawrence v. Yeatmao, 2 Scam, 17 attorneys was expressly " without Rowley v. Berrian, 12 111, 198 prejudice ;" and they say : "Wede- Thompson v. Turner, 22 id. 389 cide the case upon the facts pre- See Dana v. Adams, 13 id, 691 sented, and nothing would be gained Forbes v. Hyde, 31 Cal. 346; Cun- by attempting to go beyond them." ningham v. Goelet, 4 Denio, 71 ; There can be no doubt, however. Lutes v. Perkins, 6 Mo. 57 ; Wynn v. that the omission of the reservation AVyatt, 11 Leigh, 584; Lodge v. would not affect the plaintiff's State Bank, 6 Blackf. 557; Michew rights. The attorneys of the de- v. IMcCoy, 3 Watts & S, 501. fendant could not prejudice the ■* Habich v. Folger, 20 Wall, 1, 7; plaintiff by their withdrawal, Du- United States v. Yates, 6 How. 605 ; bois V. Glaub, 53 Pa. St. 238, Murray v. Vanderbilt, 39 Barb. 140. 2 Creighton t'. Kerr, sjtpro, 5\Vi-ight v. Boynton, 37 N. H. 9. §^ t»72, 673.] rKocf:EDiNGS to vacate — in general. 4G5 IV. Proceedings to Vacate Attachment — In General. § 672. Since a court which has authorizedly granted an attachment has the inherent power of controlling its own process, it is competent to entertain a motion to quash it.^ The application need not necessarily be made to the judge who granted the writ.^ It may be made to a judge at cham- bers, in some states,^ though it is usual to move in open court. Vacating an attachment is a judicial act, and one of such character that it cannot be intrusted to the ministerial officer who issued the writ.* § 673. The merits of the principal cause are not involved in a rule to dissolve the attachment.'^ The rule, when founded on the ])apers upon which the writ was issued, cannot be de- feated by the plaintiff's introduction of new evidence to sus- tain his grounds.^ An attachment may be dissolved as to a part of the property attached, in which case the order should designate what part is released.- A motion may lie to dis- solve "the attachment" though the plaintiff has laid a second See Graham v. Spencer, 14 Fed. 603 ; Jones V. Andrews, 10 Wall. 327 ; Wright V. Andrews, 130 Mass. 1-19. 1 Phillips r. Welch, 11 Nev. 187; Furman v. Walter, 13 How. Pr. 348; Bank of Commerce v. Rutland, etc. R. R. Co., 19 id. 1; Morgan v. Avery, 7 Barb. 656 ; Gay v. Eaton, 27 La. Ann. 166. 2 Rupert t\ Haug, 87 N. Y. 141; s. c, 62 How. Pr. 314. See Conklin V. Butcher, 5 How. Pr. 386; White V. Featherstonhaugh, 7 id. 357; Bank of Lansingburgh v. McKie, id. 360. sCureton v. Dargan, 12 S. C. 122; Wells V. Danford, 28 Kan. 487; Shedd V. McConnell, 18 id. 594. But it was held that the rule could not be heard and determined in chambers. Cohn v. Justice, 1 Kan, 220. 4 Matter of Marty, 3 fearb. 229. But there is an exception mentioned in this case under the New York prac- tice existing when it was rendered. 30 In Michigan application is made to circuit court commissioners. Patter- son V. Goodrich, 31 Mich. 225; Vin- ton V. Mead, 17 id. 388; Albertson v. Edsall, 16 id, 203; Nelson v. Hyde. 10 id. 521 ; Edgarton v. Hinchman, 7 id. 352. A question of fraud, on a motion to dissolve, is for the court exclusively, in Pennsylvania, Walls V. Campbell, 125 Pa. St. 346. 5 Hermann v. Amedee, 30 La. Ann, 393 ; Olmstead v. Rivers, 9 Neb. 234 ; Turpin v. Whitney, 6 Wash. 61 ; Alexander v. Brown, 2 Disney, 395. 6 Myers v. Whitehurst, 24 S. C. 196; Sutherland v. Bradner, 34 Hun, 519; Steuben Co. Bank v. Alberger, 56 How. (N. Y.) Pr. 345. See Fol- som V. Teichner, 27 Mich. 107, in ex- position of Compiled Laws, sections 6428-31 (1871), relative to attach- ments dissolved by commissioners, etc. ' Ellsworth V. Scott, 3 Abb. New Cases, 9. 466 ATTACHMENT PEOCEEDINGS IN COURT, r^§ 674, 675. upon the first.^ But if he has two attachment cases, on the same cause of action against the defendant, the plea of lis pendejis will lie.'' Clerical errors or omissions in stating the ground of attachment afford no reason for quashing when the context explains the meaning.' § 674, By the defendant. — The motion is made by the de- fendant whose property has been attached,* He has this right by reason of his ownership and the interest which he has in having the property released. He should have either owner- ship or the right of possession.'^ The right of possession, without ownership, would entitle him to make the motion ; and he should allege this right in his application.^ He should verify his allegation when the practice of his state requires it;^ but if he has filed a sworn answer, that may be used as his affidavit on motion to dissolve where the motion may be legally made thereafter.^ The defendant cannot be heard for the purpose of having the attachment dissolved if he has assigned the property;'' nor if the property is under execution of a judgment against him;^" nor if he has agreed to a summary sale and the reten- tion of the proceeds till final judgment;" nor if he has no rightful claim to the possession ; ^^ nor if he has no title ;^' but a partner in property may be entitled to the restoration." The defendant cannot question the debt on motion to dissolve.''^ § 675. By surety. — The surety on a forthcoming bond is so far a party to the proceeding that there may ultimatel}'" be a 1 Wearne v. France, 3 Wyo. 273. 6 Johnson v. De Witt, 36 Mich. 95; 2 Smith V. Derse, 41 Kan. 150. See Patterson v. Goodrich, 31 Id. 225, Seeley v. Mo. etc, R. Co., 39 Fed. 252. 7 Osborne v. Bobbins, 10 Midi. 277. 3 Harrison Works v. Hosig, 73 Wis. ^ Nelson v. Murch, 23 Minn. 229. 184; Corrigan v. Nichols (Tex.), 24 9 Chandler v. Nash, 5 Mich. 409; S. W. 952. Gathercole v. Bedel. 65 N. H. 211. i Cockrell v. McGraw, 33 Ala. 526 ; lo Johnson v. De Witt, 36 Mich. 95. Schoppenhast v. Bollnian, 21 Ind. ii Wickham v. Nalty, 41 La. Ann. 280; Williams v. Walker, 11 la. 77; 284, Isham V. Ketchum. 46 Barb. 43 ; 12 Price v. Reed, 20 Mich. 72. Ketchum v. Ketchum, 1 Abb. Pr. 13 Mitchell v. Skinner, 17 Kan, 563. (N. S.) 157; Kincaid v. Neal, 3 Mc- i^ Edwards v. Hughes, 20 Mich. 289. Cord (S. C), 201 ; McBride v. Floyd, 15 Fisher v. Taylor, 2 Martin (La.). 2 Bailey (S, C), 209, 113; Smith v. Elliott, 3 id. 366; 5 Zook V. Blough, 42 Mich. 487. Brown v. Ainsworth, 32 Ga. 487 ; Lord V. Gaddis, 6 la. 57, §^ 07G, 677.] PEOCEEDINGS TO VACATE — IX GENERAL. 467 judgment against him in the ciase, and he is certainly interested in the property attached so far as to be responsible for its restoration upon judgment being rendered against his principal. He has therefore been held competent to move for the vaca- tion of the attachment.^ The surety on a dissolution bond has succeeded in arresting a judgment on the ground that the at- tachment was void for fatal, patent defects, after a previous motion to arrest, made by his principal, had been overruled.^ § 676. By any interested. — If there are other parties in the ■case interested in having the attachment dissolved, any one of them may move to quash ; but it is essential to the right of any one to move that he be interested in setting the attach- ment aside.' Where, in the practice of some of the states, Wages not yet due, and ten dol- celon, 77 Me. 25; U. S. R. S., § 4747. lars of those due in each case, are 2Reifif V. Mack (Pa.), 28 A. 699. exempt from garnishment in Mary- 508 EXEMPTION. [§ 'TiS. An attorne3^'s fees are not exempt, as wages, from garnish- ment,^ though the opposite was held as to a ph^^sician's bill.- A policeman's order on a city for wages was held not subject to garnishment.* Where the wages of workmen were exempt, a mechanic who had his own shop was not protected.* Factors" and brokers' commissions are not wages and not exemptible as such, but those of commercial travelers are not subject to garnishment in the hands of the emplo3^er. This distinction between the commissions of factors and those of travelintle, 5 Watts, has been set aside upon bond, "the 132; Baxley v. Linah, 4 Harr. 241. fiause shall proceed as if the defend- ^Svvartz v. Lawrence, 12 Phila. ant had been reasonably served with 181 ; Roberts v. Dunn, 71 111. 46. a writ of summons " (Rev. Stat. 1874. 3 Buckingham v. Swezy, 61 How. ch. 11, § 14), yet the court's reasons (N. y.) Pr. 266. See, as to suit seem to be of general application, against joint defendants, with serv- It is said : " the character of the suit ice on one only, and. judgment as a proceeding iu rnn was thereby against him only, — effect if bond [by bonding] completely changed, given to dissolve attachment in The suit thereupon became a pro- which but one. defendant is named, ceeding in personam as completely as Central Mills Co. v. Stewart, 133 if it had been originally commenced Mass. 461. by an ordinary summons, and no at- * Hughes r. Tennison, 3 Tenn. Ch. tachment had even been sued out; C41. Contra, Magee v. Callan, 4 and the qualified lien which appel- Cr. C. C. 251. lees [attaching creditors] acquired 5 Hill V. Harding, 93 111. 77. by the levy of the attachment was Though this was substantially said forever gone." §§ TtiT, TCS.] THE DISSOLUTION BOND. 525 on the property attached, it has been held to be virtually a release of the property, and a dismissal of the attachment* (though in some states such recognition of lien and privilege is understood); but, if there has been a dissolution bond ex- ecuted, the judgment must necessarily be without recogni- tion of lien and privilege and without reference to attached property.^ § 707. The res diseippears. — The res of the ancillary action disappears by the bonding, so that no intervenor could there- after appear in the case to claim it.^ AVhether he has iijus in re or Sijus ad rem, he can secure his right only by follow- ing the res itself. If the bond is a substitute for the res so far as the plaintiff is concerned, it is not so with respect to a third party claiming. This subject may be elucidated by reference to libel suits for the enforcement of liens upon property, in which the res itself is impleaded and in which there is no personal defend- ant: such as a libel against a ship to enforce the pre-existing lien evidenced by a bottomry bond. Any person maj' appear, make stipulation, file a claim for the ship, and apply to bond her. If the court grant the application, the bond becomes the Substituted ^rs against which the suit is further prosecuted ; and this is true in all cases in rem quoad omnes, irrespective of persons.^ §768. The claimant is always an actor — not the subject of the action; he is rather a plaintiff than a defendant, in ac- tions in rem of the character mentioned. The action cannot therefore become a personal one by the substitution of one7'es for another. In attachment suits, on the contrary, there is always a per- son named as well as a thing attached ; and therefore, when the thing has been given up by the court because of the securit}'^ given by the personal defendant that he will respond to the 1 Wasson v. Cone, 86 111. 46 ; Lowry shaw, 18 La. 57 ; Mayberry v. Stea- V. McGee, 75 Ind. 508. gall, 51 Tex. 351. 2 Love V. Voorliies, 13 La. Ann. •* Houseman r. Cargo of the 549. Schooner North Carolina, 15 Pet. 40; 3 Gibson v. AVilson, 5 Ark. 42'3; The Virgin, 8 id. 538; United States McRae v. Austin, 9 La. Ann. 360; v. Ames, 99 U. S. 35; Tiie C. F. Ack- Monroe v. Cutter, 9 Dana, 93; Taylor ennan, 14 Blatchf. 300; The Blanche V. Taylor, 3 Bush, 118; Dorr v. Ker- Pa-e, 10 id. L 526 defendant's bonds. [§§ 769, 770. judo-ment, it becomes more simple and satisfactory to say that the suit goes on to the end as one in jyersonam^ than to say that there is 3'et a res in the substitute given. This should outweigh argument drawn from the analogy suggested by the practice in proceedings of the character above considered. §769. Effect on garnishment. — The garnishee, though he has answered that' he owes the defendant or holds his prop- erty, should be discharged if the defendant appears and enters into bond, with security, conditioned that he will satisfy what- ever judgment maj^ be rendered against him in the suit. There v^ould be no motive for the giving of such bond, unless the defendant thus becomes entitled to the dissolution of the attachment, the restitution of his seized property' and the re- lease of his own debtors from the effect of garnishment. The attaching creditor, being perfectl}'' secured by the bond (the worth of which he has had opportunity to test), has no cause to complain of the results above mentioned. The bond, or undertaking, is to him a substitute for all of defendant's prop- erty or credits attached. A garnishee, after the bonding, ought to be discharged be- fore answering; but, whatever his answer, he should be dis- charged so soon as a motion is made therefor on suggestion of the bonding as the ground of the motion.^ III. Bond Sureties. § 770, The oWigation. — The surety contracts with reference to the state of things existing or represented to him. He is not obligated by signing a bond when the proper parties have misrepresented it to him — when the obligee has misled him; and when those who were to be his co-obligors have failed to sign, thus rendering his undertaking more onerous than that which he had agreed to assume.^ It is a voluntary act on the part of the defendant and his surety when they execute a bond or undertaking to pay what- ever judgment ma}'' be rendered against the defendant. Be- 1 Myers r. Smith, 29 Ohio St. 120 ; 390; Col. Code, §§ 111, 112. -See Lecesne v. Cottin, 10 Martin (La.), Cunningham v. Hogan, 136 Mass. 174. The defendant may have funds 407. paid into court by a garnishee re- 2 Sqq Crawford v. Foster, 6 Ga. 202 ; leased by bonding. Henry v. Gold Bean v. Parker, 17 Mass. 591 ; Clem- Park Mining Co., 3 McCrary C. C. ents v. Cassily, 4 La. Ann. 380. § 771.] BOND SURETIES. 527 cause of the voUmtarv character of the act, and of its oblicra- tions arising from the contract thus entered into between the defendant and his surety on the one part, and the attaching creditor on the other, the obligors would not be relieved by every circumstance subsequently occurring which might have rendered the attachment itself nugator3\^ § 771. Bankruptcy as to surety. — By the provisions of the national bankrupt act, attachments sued out within four raontbs prior to the tiling of a petition in bankruptcj^ were dissolved by the surrender ;2 but if dissolution had taken place previousl}'^ by bonding, the bankruptcy proceeding did not re- lieve the surety on the bond. From the time of the bonding, the attachment lien was at an end, so that the assignee in bankruptcy came in charge of the property freed from lien by the defendant's act and not by the provision of the bankrupt law.* Though the surety's obligation is contingent, and subordinate to that of his principal ; and though he is bound to pay onl}^ in case the plaintiff recover judgment and the defendant fail to satisfy it, so that he does not, by signing the bond, become immediately and separatel}'^ liable,* yet his obligation is to pay the debt when adjudged, if his principal should not do so and cannot be made to do so. Hence, in case of the bankruptcy of the latter after the ancillary proceeding has been ended by the bond dissolving it (and after the suit has become altogether a personal one), the surety is in no better position than he would be if bound by an appeal bond to pay such judgment as might be rendered in an appellate court ;^ no better than if he were surety on a promissory note and his principal should go into 1 Preston r. Hood, 64 Cal. 405, See 13 Abb. Pr. (N. S.) 324; Cornell v. Coleman v. Bean, 33 How. Pr. 370; Dakin, 38 N. Y. 253; Braley v. Gale u. Siefert, 39 Minn. 171 ; Rowley Boomer, 116 Mass. 527; Cutler v. V. Jewett, 56 la. 492; Poteet v. Bond, Evans, 115 id. 27; Hamilton v. Bry- 10 Mo. 160; Murray v. Shearer, 7 ant, 114 id. 543; Carpenter r. Turrell, Cush. 333; Hill v. Merle, 10 La. 108. 100 id. 450; Bates v. Tappan, 99 id. 2 West Phila. Bank v. Dickson, 95 37G; Zollar v. Janvrin, 49 N. H. 114; U. S. 180; Morgan v. Campbell, 22 . Colman r. Bean, 3 Keyes, 94; Parks Wall. 381 ; Miller v. Bowles, 58 N. Y. v. Sheldon, 36 Ct. 460. 253; Risley v. Brown, 67 N. Y. 160; •« Wehle v. Spellmau, 75 N. Y. 585. Goodhue r. King, 55 Cal.. 377. 5 State v. McGlothlin, 61 la. 312; 3 Wolf V. Stix. 99 U. S. 1 ; McCombs Hill v. Harding, 130 U. S. 703. See v. Allen, 82 N. Y. 114; Holyoke v. Collins ^j. Burns, 16 Colo. 7. Adams, 59 id. 233 ; Bildersee v. Aden, 528 defendant's bonds. [§§ 772, 773. bankruptc}^ The discharge of the principal would not dis- charge the surety.^ The case is altogether different fi'ora that of the dissolution of an attachment for illegality in its issue, its levy, its return, etc., or anything rendering the proceeding void and the bond inoperative against the principal and there- fore not binding upon the surety from the beginning. § 772. Surety's failnre. — When the incipient lien is nipped in the bud by the dissolution bond, so that it can never there- after come to maturitv, it cannot be resuscitated by the court upon the bond becoming bad thereafter by reason of the Surety's failure or any other cause. A new attachment in such case might be issued for the purpose of creating a new lien where there is statutory authority therefor; and, without a new attachment, the court, upon a rule by the plaintiff upon the defendant to show cause why other security should not be given, may (upon statute authority) make such rule absolute. But the court cannot undo what has been done by a previously valid bond; cannot neutralize the effect of the dissolution in restoring the attached property to the defend- ant free from lien.^ When the worthlessness of the bond, by reason of the surety becoming bankrupt after its execution, has been judicially ascertained, the plaintiff has no equivalent for his lost lien ; and there is as much reason for allowing him to create an- other as there was for allowing him to create the first. He ought therefore to be permitted, in such case, to make a new affidavit and attachment bond, and have a new writ and a new levy, so as to create another incipient lien to be perfected by judgment, taking its date from the time of the new levy, even without express statute authorization beyond the general provisions. § 773. When the attachment is invalid. — The bond to dis- solve is given by the defendant and his surety on the assump- tion that the attachment is valid; and the plaintiff, as obligee, receives it as a substitute for the valid attachment, knowing that the contract may be avoided by the obligors should it 1 Albrecht, In re, 17 Bankr. Reg. 90 ; Stewart v. Dobbs, 39 Ga. 82 ; 287; Barnstable, etc. v. Higgins, 124 Hartford Quarry Co. r. Pendleton, Mass. 115. CoHipare Payne V. Able, 4 Abb. (N. Y.) Pr. 460; Dudley v. 7 Busb, 344. Goodrich, 16 How. (N. Y.) Pr. 189. 2 Ferguson i\ Vance, 3 Lea (Tenn.), §§ 77-1, 775.] uoND SURETIES. 529 prove wanting in consideration. There would be no reciproc- ity if the plaintiff should get his claim secured, and give up only an illegal attachment — that is, give up nothing in re- turn. When he comes to sue upon the bond the defendant and his surety may set up the illegality of the attachment in defense, except with regard to matter conceded by the bonding;^ they may under proper allegations inquire into the affidavit, bond, writ, return, jurisdiction, etc. ; and, if the statute under which the suit was brought has not been substantiall}'' followed, they may succeed in avoiding the obligations of the bond.^ § 774. Clunuje in plaintiff^ s pleadings. — The surety upon a bond given by the defendant to dissolve an attachment takes his obligation with reference to the cause as it then stands; and should the plaintiff afterwards so change his pleadings as to make virtually a new action, how can it be said that the surety would have obligated himself under such new order of things? He may have been satisfied that the plaintiff could not recover in the action, and may therefore have been will- ing to give the defendant present relief by signing as his bondsman, though he would not have signed had the suit been well grounded. § 775. Amendments as to surety. — But, notwithstanding the bonding, the plaintiff mav amend without relieving the de- ^See Bunneman v, Wagner, 16 Homan v. Brinckerhoff, the defend- Oreg. 433. ant, after personal judgment against 2Vose V. Cockroft, 44 N. Y. 415; him, was sued on the dissolution Horaan v. Brinckerhoff, 1 Denio, 184; bond, and he defended by pleading Kanouse r. Dormedy, 3 id. 567 ; the invalidity of the attachment by Matter of Faulkner, 4 Hill, 598 ; reason of the absence of an attach- Caldwell v. Colgate, 7 Barb. 253; ment bond. The court held that Bildersee v. Aden, 62 id. 175 ; Hodge by the appearance of the defendant V. Norton, 22 Kan. 374. Contra: in the attachment suit, the court Cruyt r. Phillips, 16 How. (N. Y.)Pr. had jurisdiction of tliat suit, evi- 120 (if the court's jurisdiction is dently meaning jurisdiction over the independent of the attachment); person of the defoidant, for it is Scaulon v. O'Brien, 21 Minn. 434, added: " That will not aid the plaint- in exposition of Minn. Gen. Stat., ch. iff; he did not hold the property 65, § 95 ; Dunn v. Crocker, 22 Ind. under the judgment. . . . He had 324 {see Gass v. Williams, 46 id. no other hold on the property than 253); Coleman v. Bean, 32 How. Pr. such as the attachment gave him, 370; McMillan v. Dana, 18 Cal. 339; and that was utterly void for want Bacon v. Daniels, 116 Mass. 474. In of jurisdiction to issue it.'' 34 530 defendant's bonds. [§§ 77G, 777. fendant's surety from any obligation, if he does not change the character of the action b\'" introducing new counts or new grounds. It is not just to the surety that he should be put in a worse condition than he was in when he signed, by any amendment that would strengthen the old grounds or make the plaintiff's position any better, and the surety's conse- quently worse. But amendment is allowed in practice; and even if new counts and new grounds are introduced, the surety will be liable after final judgment, if the judgment is not based on the new grounds or amended counts.^ § 776. Sureties are not discharged by an amendment of the summons so as to reach a third defendant;- nor by an amend- ment of pleading not affecting their obligation;^ nor b}' an amendment of one count of a declaration, if the attachment holds good on another;^ but an amendment increasing the demand would discharge them.^ The bond would not be affected by the dismissal of one of the defendants to the suit.'^ When it is among the conditions of the bond that, in case the plaintiff should recover, judgment shall be entered against the surety without notice, it may be so entered though the surety be a non-resident.'^ § 777. In some states, as in Arkansas, the sureties on a dissolution bond are deemed parties to the attachment suit and subject to summary judgment without service of notice or process upon them.^ In that state, sureties may be sued without their principal.^ When the obligation is to pay the judgment in the suit, the sureties are liable if the judgment be against some of the de- fendants while others are dismissed.^'' This would not be the 1 Cutter V. Richardson, 125 Mass. ^Kuhn v. McMillan, 3 Dill. 372. 72 ; Wood v. Denny, 7 Gray, 540 ; See Weed v. Dills, 34 Mo. 483. Mann v. Brewer, 7 Allen, 202. « Fletcher v. Menkin, 37 Ark. 206 ; 2 Christal v. Kelly, 88 N. Y. 285. Gantt's Dig. 406. 3 United States v. Mosely, 7 Saw. ^Chrisman v. Rogers, 30 Ark. 351 : C. C. 265. Lincoln v. Beebe, 11 id. 697. It has 4 Warren u. Lord, 131 Mass. 560. been held otherwise in Kentucky, 5 Princeu Clark, 127 Mass. 599; Hill when the principal can be served. V. Hunnewell, 1 Pick. 192; Willis v. Page v. Long, 4 B. Mon. 121. Crocker, id. 204. lo Leonard v, Speidel, 104 Mass. 6 Poole V. Dyer, 123 Mass. 363; 356. Cutcheon v. Weston, 65 Cal. 37. § 777.J BOND SUKLTIES. 531 case if parties were changed by the plaintiff after the bond was given. ^ The surety may get acquittance by tendering the full amount of the judgment.^ It has been held that a mistake in the bond, b}'- which the writ was described as having been issued from the circuit court instead of the district court, cannot avail the surety so as to release him from his obligation.^ 1 Richards v. Stower, 114 Mass. 2 Hayes v. Josephi, 26 Cal. 535. 101 ; Quillen v. Arnold, 12 Nev. 234. » Ripley v. Gear, 58 la. 460. CHAPTER XX. THE CREDITOR'S CONTESTS WITH THIRD PARTIES. I. Intervention, in General §§ 778-789 II. Junior Attackers 790-798 III. Priority of Seizure 799-806 IV. Priority of Garnishment 807-813 V. Simultaneous Attachment 814-815 VI. Claimants 816-826 VII. Competition with Mortgagees 827-838 VIII. Competition with Assignees 839-847 I. Intervention, in General. § 7Y8. In the 2>ersona1 action. — So far as the personal action is concerned, there is generally no reason for third persons holding liens to intervene between the plaintiff and the de- fendant.^ The plaintiff, being an ordinary creditor, suing to recover an ordinary debt, cannot deprive a third person of any right wdiich he has against the defendant or defeat or prejudice any lien which such third person may have upon the defendant's property.^ Such third person must prosecute any claim which he has in a separate and independent suit, and not come into a suit brought by another to complicate its proceedings. It does not matter to him that the plaintiff in an attachment obtains a personal judgment against his debtor, any more than if it were obtained in any ordinary action for debt. But where an equitable attachment is sued out by a suretx'- to reach lands alleged to have been fraudu- lently conves^ed by his principal, the creditor may interfere if the suret}'^ has not paid the debt.^ §779. 1)1 attachment suit. — There is generally no reason for intervention in an attachment suit. As the attaching 1 Sperry v. Ethridge, 70 la. 27. 3 Peevey v. Cabaniss, 70 Ala. 253 ; See dissent of Judge Daniels in Em- Ala. Code, § 3864. pire Type Co. v. Grant, 44 Hun, 434. 2Stapleton v. On; 43 Kan. 170. § TSO.] IXTp:RVENTIo^^, in general. 533 creditor begins his action when he has no lien, with the pur- pose of creating one, he cannot effect his purpose to the prejudice of liens already existing. If he causes the attach- ment of property belonging to the defendant and possessed by him, upon which no previous lien rests, it is manifest that ordinarily no one is directly interested to appear in the suit but the defendant himself. If he attaches property on which some other creditor holds an existing lien without possession, he cannot affect such lien-holder's rights, since the attachment is subject to that lien. He can proceed only against the debt- or's interest in the thing attached, and that is the property minus the interest which the previous lien-holder has in it. It therefore does not concern the lien-holder whether the at- taching creditor obtains a junior lien or not. He has no inter- est to interplead, and hence no right to come into the case and oppose the litigation going on between the plaintiff and the defendant, or urge a judgment in his own favor with rec- ognition of the rank of his lien as paramount to that of the attaching creditor. His time to appear, if at all, is after judg- ment to claim the proceeds. The hold which he had upon the property is not broken by the judgment and the sale, when the sale is made subject to his lien; and, when it is not, he follows the proceeds, and is awarded his proper rank as a creditor in the distribution. § 780. The attaching creditor, who has perfected his hypo- thetical lien of attachment by a judgment thereon, is in no better position in respect to a prior lien-holder than that of a junior mortgagee who has had his mortgage recognized by decree, in relation to a senior mortgagee. If the junior may issue execution and sell the property, the senior must be fully satisfied out of the proceeds before any can be applied to the payment of the junior. Indeed, the execution and sale are primarily for the benefit of the older lien-holders, and the plaintiff in execution is, in some sense, the agent of such bene- ficiaries. It is so when the latter cannot issue execution in their own names but must follow the action of the judgment creditor and look to the proceeds for their payment.^ 1 This is well illustrated by decis- holding a prior mortgage cannot ion^ in Louisiana, where mortgage prevent the sale of the mortgaged is a lien without possession. " One property at the suit of a subsequent 53J: creditor's contests with third parties. [§§ 781, 782. § 781. Bdation of plaintiff to lien-holder. — If lien-bearing property is attached and prosecuted to judgment, the attach- ing creditor cannot sell a part of it, sufficient to satisfy his own claim, and leave the prior lien-holder bereft of a part of his security. Were the rule otherwise, there. would indeed be good reason for intervention. ' But, since the plaintiff is, in a sense, the agent of the senior lien-holder, when he issues execution, he is bound to sell the whole of the lien-bearinir property attached, so as to clear away the prior liens by pay- ment out of the proceeds, and thus enable himself to satisfy his own claim out of any residue. Under such circumstances, he is in duty bound to exhaust the property in order to pay mortgages or other liens outranking his own; and that duty is correlative with the right of the prior lien-holders to have it exhausted.^ The payment of the superior claims is the first duty of the plaintiff in execution. It is a condition pre- cedent to his privilege of making his own money out of the property; it \s the sine qua non of his judgment right. He is bound to sell all of the mortgaged property which he has attached ; he cannot sell a part to pay the mortgage in part when the mortgage covers the whole and the exhaustion of the Avhole is necessary to satisfy the lien.^ § 782. Every portion of property mortgaged is liable for the debt; the mortgage is toto in toto, et toto in qualihet parte. "^ mortgagee. He must exercise his another would not have the right right on the proceeds:" Conrad v. to oppose that sale and to preserve Prieur, 5 Rob. 55; Tyler t?. His Cred- his pledge in kind. His right is iters, 9 id. 373 ;" Florence v. New Or- that of being paid out of the pro- leans Navigation Co., 1 id. 224; ceeds." Alexander v. Jacob, 5 Mar- Fulton V. Fulton, 7 id. 73 ; City Bank tin, 634. of New Orleans v. Mclntyre, 8 id. i Thelusen v. Smith, 2 Wheat. 436 ; 467; Bloodworth v. Hunter, 9 id. Parsons v. Wells, 17 Mass. 425; 256; Joice v. Poydras De La Lande, United States v. Hawkins, 4 Martin, 6 La. 283 ; Herbert's Heirs v. Babin, N. S. (La.) 317. 6 Martin (N. S.),' 614; Casson v. 2 go repeatedly held in Louisiana La. State Bank, 7 id. 281 ; Rowley with reference to sales by junior V. Kemp, 2 La. Ann. 360. "The mortgagees when rights of seniors proceeds stood in the place of the were involved. Pepper v. Dunlap, real estate and the same preference 16 La. 163, 169; Florence v. Orlean& was retained on them:" Crum r. " Nav. Co., 1 Rob. 224; Moore u. Allen, Laidlaw, 10 Martin, 468; Chipella t7. 10 La. 496; Elwyn v. Jackson, 1'4 Launsae, id. 448. It was held that id. 411 ; Adams v. Sears, 3 La. Ann. " the creditor whose pledge is seized 144. and offered for sale at the suit of ^gagleyu. Tate, 10 Rob. (La.) 45. §§ 783, TSi.] INTERVENTION, IN GENERAL. 535 Hence, if the right in property of a second mortgagee (or of an attachment judgment-creditor) should amount to only one- tenth of the value of the property attached, he must sell the whole, unless a part is sufficient to satisfy the anterior mort- gage, if allowed to sell. And when the proceeds of the whole have been brought into court, it is time enough for the cred- itor first in rank to make his appearance and claim to be first paid out of the proceeds. §783. Lien-holder secure. — The senior lien-holder not in possession has no cause to intervene b}'^ reason of the attach- ing creditor's seizure of the property and its coming into the possession of the court under the attachment. The possession is not adverse to him. The attaching is effected with refei'- ence to his lien; or, rather, only the defendant's interest be- 3'ond what he owes to others and has secured to them by liens can possibly be made available by the attaching cred- itor. He cannot set up such adverse possession as would de- feat such liens, any more than a junior mortgagee could thus defeat a senior, where mortgage is a mere lien.^ Everywhere, in every state, it is true that lien-holders, whether mortgagees or others, who have no possession to be disturbed by the act of attaching the property on which their liens rest, are placed in no worse position by the attachment; are not prejudiced by the court's possession of the attached property; are not injured by the creation of a new lien upon it, and are not deprived of any interest by the perfection of such new lien by judgment, or by a sale of the property to vindicate such lien after first satisfying all prior liens. § 784. Mortgages are not everywhere mere liens; but where they are so, the mortgagee has no more interest to appear as an intervenor in an attachment suit than, a first attaching creditor has to interfere with the proceedings instituted by a second attacher. In both cases the prior lien is secure; at least the subsequent lien does not make it insecure. It raat- 1 Bank of Louisiana r. Stafford, 12 sor must pay the debt or give up the How. (U. S.) 341. And the reason is property." Moore u. Allain, 10 La. that the attachment suit is in char- 496. " It is a real action, whether acter like a mortgage suit, when the the property mortgaged is in the lien has been perfected bj- judgment, hands of the mortgagor or of a third "The hypothecary action is a pro- person." Elwyn v. Jackson, 14 La. ceeding in rem, and the third posses- 411. 530 creditor's contests with third parties. [§§ 785, 7SG. ters nothing to him that is thus provided for, how many new liens and privileges may arise. He has no interest, and there- fore no right to come between the plaintiff and the defendant during the pendency of their litigation.^ § 785. Interest of third j^ersons to intervene. — "Whether or not a third person may interplead can ahva3'S be tested by the question of his interest to do so. If he has none, he has no right to complicate the case. If he has interest, and it can only be asserted in somebody else's case and during its pend- enc}'-, he should be permitted to interplead then and there. He is not precluded because some claimant has bonded the attached property.^ Neither court nor legislature can deny him the opportunity of presenting his right and claim some- where and somehow. He may be regulated b}^ statute or by the established practice, as to whether he may intervene or resort to some other mode; whether he ma}'' contest the pre- tensions of the plaintiff and defendant in their case, or in- stitute an original one of his own; whether he may lie still till disturbed in some way and then resort to an injunction or some other conservative remedy.' § 786. A lien-liolder in possession. — One cannot have his possession disturbed by attachment; he may resort to legal resistance, either in the attachment suit or otherwise, as the statutes or the practice there may allow.* It has been held that the holder of a deed of trust to property, given by the defendant after the property had been attached, may inter- vene to claim the property and controvert the attachment proceedings against it.^ 1 Keith V. Losier (la.), 55 N. W. King, 121 III. 250; Paine r. Holliday, 952; la. Code, §2628. 68 Miss. 298; H. B. Claflin Co. v. 2 Dreyfus v. Mayer, 69 Miss. 282. Feiblenian, 44 La. Ann. 518; Whalen 3Romagosa?;. Nodal, 12 La. Ann. v. McMahon, 16 Colo. 373; McDon- 341; Lewis v. Harwood, 28 Minn, aid r. Faulkner, 154 Mass. 34. 428 ; Crone v. Braun, 23 id. 239 ; * Bayer v. Grove, 46 Mo. App. 245 ; Rodrigues v. Trevino, 54 Tex. 198 ; Emerson v. First N. Bank (Tex. Civ. Adoue V. Seeligson & Co., id. 595: App.), 25 S. W. 452. See Kimber r. Laclede Bank v. Keeler, 103 111. Clark, 17 Neb. 403; Heaverin v. 425: Willis v. Thompson, 85 Tex. Robinson (Ky.), 21 S. W. 876; Round- 301; Stansell v. Fleming, 81 id. 294; stone v. Holt (Colo. App.), 37 P. 35. Wear u. Sanger, 91 Mo. 348; Green 5 Bamberger v. Halberg, 78 Ky. V. Kelley, 64 Vt. 309; Hamilton v. 376. Laniphear, 54 Ct. 237; Frank v. I -' § 787, 788.] INTERVENTION, IX GENERAL. 537 Where lien-bearing property may be attached, it is always still subject to the existing lien, and there is no general rea- son why there should be intervention before judgment, and it should not be allowed except where the right to do so is se- cured by statute. § 787. Should intervene in lyroceedings in rem. — Here must be noted the radical difference between a proceeding i)i rem irrespective of persons, where the notice is to all the world and all persons are bound by the decree, and a proceeding with respect to a particular debtor, where there is summons or notice to him alone, and he alone can be bound by the judgment. In the former case, lien-holders must intervene, at some stao^e or lose their rights. In some such proceedings, where a libelant asserts a right to the thing, lien-holders are not allowed to ap- pear; but this rule is almost wholly confined to prize causes^ Avhich are prosecuted under the law of nations; and even in such causes it is not inflexible except when the prize is capt- ured in battle. Wherever notice to all persons is published, interested persons (unless they be enemies) are privileged to appear; and even an enemy who should deny the enemy char- acter, especially if he should take the oath of allegiance to the government which is the libelant, might be allowed to invoke the protection of the court which he is no longer fighting to destroy. He could not render the r unless there are other circumstances to show a design to aid one of the attaching creditors to the injury of another, which, coupled with the wrongful act, would constitute malfeasance. But such malfeasance must result in actual loss to the litigant whom the clerk meant to delay, before an action would lie against such officer; at least before an action would lie for anything more than nominal damages.^ §809. Ranli. — Garnishments by more than one creditor, competing with each other, take precedence in the order of service, as observed before.^ This depends, of course, upon the maintenance of the attachments and their perfection by judgment and levy. One who abandons his attachment, though by a compromise with the defendant by which it is agreed between them that he shall take the property attached, and who thereupon dismisses his action, or who dismisses it for any reason, loses his rank, and the junior attachers take the property in due order — the first of the juniors being satis- fied, the second succeeding, and so on.^ Where there is a limit fixed by statute to the duration of the lien of an attachment upon mesne process (as, for instance, 1 Lick V. Madden, 36 Cal. 208. Wilder v. Weatherhead, 32 Vt. 765; 2 Johnson v. Griffith, 2 Cr. C. C. Bergman v. Sells, 39 Ark. 97. 199; Moore v. Holt, 10 Gratt. 284; 3 CoIe tJ. Wooster, 2 Ct. 203 ; Bran- Erskine v. Staley, 12 Leigh, 406; don Iron Co. v. Gleason, 24 Vt. 228. §§ 810, 811.] PRIOKITY OF GARNISHMENT. 551 that it shall continue only thirty days after judgment), the first lien might expire with the period, and the second thus gain the first rank. If there is a final judgment for the de- fendant in the first attachment suit, the lien of the second, sustained by judgment, would gain the first rank. Though the decree against the defendant be appealable, yet, if not appealed in due time, the lien would be as effectual as if there had been a confirmation of the judgment b}^ the appellate court. The law must be strictly construed when liens are being marshaled ; the first attacher who has legally lost his rank cannot regain it in equity.^ § 810, Lien. — Priority of garnishment when obtained, like priority of attachment in the hands of the defendant himself, must be followed up by judgment maturing the lien to pre- serve it from supercedure in rank by later garnishments. Originally all the creditors are ordinary ones, lienless, stand- ing on equal grounds. The only advantage one has over another in a contest grows out of the superior vigilance and diligence of him who makes the earlier garnishment. The highest rank among the immature liens created by the gar- nishments, belonging to the first interrogator who has had the garnishee served, may be lost by any act of his that would dissolve the attachment and release the lien.- The lien, is sometimes said to be dissolved when there is judgment for defendant, but the efi'ect of such judgment is to retroact upon the attachment or garnishment so as to make it nugatory from the beginning. Instead of dissolving a lien, it makes the fact manifest that there never has been a lien in the sense of a right thing attached to the amount unjustly or illegally claimed, or claimed under circumstances that never legally warranted the remedy by attachment. § 811. Effect of judgment confessed. — When there is judg- ment for the plaintiff upon the confession of the defendant, is there a release of the lien so far as junior attachers are con- cerned? If the confession of judgment is before the return of the attachment writ, it could hardly be said to merge any attachment lien into a judgment lien. Of course, the judg- ment lien would be none the worse for this so far as the direct 1 Suydam v. Huggeford, 23 Pick. 2 Suydam v. Huggeford, 23 Pick. 46J. 465. 552 ckeditob's contests with third pakties. [§ 812. relations between the judgment creditor and the judgment debtor are concerned; but the question is, would such judg- ment have priority in execution directed against goods or debts attached or subjected to garnishment over junior judg- ments rendered without confession and pursuant to garnish- ment or attachment, and for the perfection of the liens? Certainly the first plaintiff could not retain priority of lien by compromising with the defendant, accepting attached property in satisfaction of the claim, and dismissing his suit; and it would seem that a confession of judgment by the de- fendant, under the circumstances suggested, would give the plaintiff no better position, in relation to competing junior attachers, than such compromise would give."^ As a general rule, the attaching creditor, having his right to create a lien by the operation of law upon given circumstances, must rea- sonably follow the law; for, though junior competing credit- ors are not competent to interfere between him and the defendant for the purpose of pointing out unsubstantial irreg- ularities, they have such right as their interest gives to show that the first attachment has lost its hold by the failure of the senior attacher to follow the law. §812. JEffect of amendment. — An amendment of a writ may be retroactive upon the question of a garnishee's liabil- ity. Although there could be no judgment against him on an answer that he owes the firm of which the defendant is a member, yet if afterwards the firm is made the party defend- ant, the garnishee may be held bound under such answer.- Meanwhile, however, the rights of other persons might inter- iColeu Wooster, 2 Ct. 203; Mur- 161. But as soon as the writ was I'ay V. Elrige, 2 Vt. 388; Brandon amended by joining Bristol as de- Iron Worlds V. Gleason, 24 id. 228; fendant, the trustee still holding the Hall V. Walbridge, 2 Ailfens, 215. fund, ... no rights of other 2 Sullivan v. Langley, 128 Mass. persons having intervened, and it 287: "The first service upon the being conceded that the two defend- trustee of a vt'rit in which Alder- ants comprised the firm of J. F. A. man, but no partner of his, was & Co., and that the fund belongs to then a principal defendant, did not, them, the previous attachment be- indeed, create a valid attachment of came valid, and the trustee was at the debt due from the trustee to the once chai'geable upon his original partnership of J. F. Alderman & answer. . . . West v. Piatt, 1115 Co. Plowes V. Waltham, 18 Pick. Mass. 308; Terry v. Sisson, 125 id. 451 ; Hoyt v. Robinson, 10 Gray, 371 ; 560 ; Wright v. Herrick, id. 154." Bulfinch V. Winchenbach, 3 Allen, §,^ 813, Sl-i.] SIMULTANEOUS ATTACiniENTS. 553 vene; writs in other cases might reach the fund or debt as that of the firm, and the retroaction of the amendment would be inadequate in the contest between the writs for priority. The attaching creditor who first garnishes the firm's credit must necessarily outrank him who does so later by a reactory amendment; for the reaction cannot make the attachment as of the original date of the summons, if thereby other persons w^ould be injured. § 813. Not retroactive^ ivlien. — Although attachment writs may be amended under certain circumstances, so that the change has a retroactive effect when no interests of others than the parties to the suit are thereby affected, yet a change of circumstances cannot render an attachment valid, if void when executed. The validity must be judged by the facts existing at the time of the levy.^ If, when the garnishee is summoned, the state of facts then is that he owes the defendant but is under an agreement with him to offset the debt ag^ainst an- other, he is not chargeable: and though such agreement should afterwards be abrogated, the change of circumstances will not retroact so as to render the garnishee chargeable on his first summons.^ He might be reached by a second sum- mons and a second declaration to him by the officer that the property and credits of the defendant are attached in the gar- nishee's hands, followed by interrogatories; or, a junior at- tacher might summon such garnishee, disregarding the prior attempt to hold him, and successfully attach in his bands after the agreement had been abrogated. The first attempt, at a time when the garnishee was not chargeable, could have no effect whatever. The second, when the garnishee had become chargeable, would really be the first attachment, and there- fore would create the only lien. V. Simultaneous Attachments. § 814. Equal lieus. — Simultaneous service of several attach- ments creates equal liens.^ Equal liens share equally in dis- tribution — not proportionately to the amounts claimed. In 1 Hancock v. Colyer, 99 Mass. 187; 3 Wilson v. Blake, 53 Vt. 305; Stef- Meacham r. McCorbitt, 2 Met. 352. fens v. Wanboeker, 17 S. C. 475; 2 O'Brien v. Collins & Trustee, 124 Pond v. Griffin. 1 Ala. 678; Sewell v. Mass. 98. Savage, 1 B. Men. 200; Burkhardt v. 55-i creditor's contests with third parties. [§ 815. such case all of the attachments are of equal force, and no just rule can give one the advantage over another. (The rule that the law disregards fractions of a day is inoperative when it would Avork injustice.^) Two persons attaching simulta- neously should each be benefited pro rata according to the amount of his claim, or should one take half the proceeds of the property attached and the other the remaining half ? The latter is the rule. The creditor claiming a thousand dollars, competing with another claiming five hundred, would get no more than half the proceeds should the3'" amount to one thou- sand dollars or less. The rule is the same as if there were two simultaneous conveyances of land, when each of those to whom the whole is thus nominally conveyed would take a moiety .2 The same piece of land, being twice devised in the same will to two different persons, goes half to one and half to the other. Though Lord Coke thought the last devise should prevail and carry the whole, the rule has been settled that either takes a moiet}'. Competing simultaneous attach- ments are somewhat analogous to such conveyances and de- vises. One's right is met by another's equal right, and there is no more equitable rule than to divide the proceeds into aliquot parts and distribute accordingly.^ § 815. Division of liroceeds. — Each of several judgment creditors having complete attachment liens of equal rank is entitled to have his judgment wholly satisfied out of the at- tached property, could he have it without injury to his com- petitors; but as he cannot, the equitable rule is that the pro- ceeds must be divided as above indicated. The attachers hold per my et per tout} Judgment liens were held equal in rank, rendered in cases in which trustee writs had been simulta- neously delivered and attachments simultaneously made; and an aliquot part was accorded to each judgment creditor.^ And McCIellan, 15 Abb. Pr. 243; Gates V. 3 Davis v. Davis, 2 Cush. Ill; Buahnell, 9 Ct. 530; Fitch v. Waite, Shrove v. Dow, 13 Mass. 529; Camp- 5 id. 117; TafEts v. Manlove, 14 Cal. bell v. Ruger, 1 Cow. 215; Thurston 47; McCobb v. Tyler, 2 Cr. C. C. 199; v. Huntington, 17 N. H. 438; Nutter Grigsley v. Love, id. 413; Howard v. v. Connett, 3 B. Mon. 199; Kennon Clark, 43 Mo. 344 ; § 807. v. Ficklin, 6 id. 414 ; Clay v. Scott, 7 1 Neale v. Ultz, 75 Va. 480. id. 554. 2 Coke Litt. 21; id. 112, note; 4 sigourney v. Eton, 14 Pick. 415. Plowd. Com. 541 ; Countess of Rut- ^ Rockwood v. Varnum, 17 Pick, land's Case, 5 Coke, 25. 289, 292. § SI 6.] CLAIMANTS. 555 if two attachments are simultaneous, one cannot acquire pri- ority over the other, with respect to the judgment lien, by the prior issue of execution against the whole of the attached property, even though the other should direct execution against a moiety only and at a later date.^ This rule of distribution is not without exceptions. If the aliquot part falling to one of several attachers is greater than the amount of judgment obtained by hira, the surplus is di- visible among the rest. A ^^ro rata division of the pro- ceeds, — the rate having reference to the amount which each attacher has recovered, — is the practice in some states.^ VI. Claimants. § S16. The owner of attached property may claim it in the attachment case and take action to have the levy set aside.^ The contest is with the plaintiff whose interest it is to support the title of the defendant.* It is the plaintiff whom the intervenor making third oppo- sition must cite; not necessarily the attachment defendant.' It is for the intervenor to see that the mtervention is put at issue and brought to trial.® It is the claimant's title which is put at issue b}'' his assertion of it under an interplea. The title of other third persons, or of the defendant (especially if absent), is not affected by the ruling upon the plea. As between the intervenor and the attaching creditor, the decision is conclusive that the thing in dispute is or is not the property of the intervening claimant.^ As between these two parties, the issue is sometimes such that the intervenor has the affirmative, and sometimes the contrary. If 1 Durant v. Johnson, 19 Pick. 544. Part II, 1294. In Mississippi, when 2 Porter v. Earthnian, 4 Yerg. 358; property is attached on mesne pro- Love u Harper, 4 Humph. 113; Hiil cess, which is claimed by a third V. Child, 3 Dev. 265 ; Freeman r. person, the trial of the title is post- Grist, 1 Dev. & Batt. 217. poned till after judgment against the 3 Xojes V. Canada, 80 Fed. 665; attachment defendant. Mandel v. Simonds v. Pearce, 31 id. 665. McClure, 22 Miss. 11; Maury v. Rob- •« Boaz V. Schneider, 69 Tex. 128 ; erts, 27 id. 225. Brown v. Lessing, 70 id. 544; ^ Yale r. Hoopes, 12 La. Ann. 460. Wichita, etc. v. Records (Kan.), 19 '' Hershy v. Clarksville Institute, P. 346. 15 Ark. 138. ^Gerson v. Jamar, 30 La. Ann., 556 ckeditoe's contests with third parties. r§§ S17, 818. he claims the attached property, he must plead in writing, present matter for issue, and it must be sufficient to support a verdict or judgment;^ and it has been held that his claim must be taken as true if it is not answered.- § 817. The claimant is always an. actor, and he must file his claim and establish it, in garnishment proceedings as well as in direct attachment. In relation to him, the original plaintiff (attaching creditor) is really a defendant as well as the attach- ment debtor is such;' and he should join issue.* Ordinarily an intervening claimant cannot bond attached property and thus get possession of it.^ When he can do so, his bond to return the goods to the sheriff on demand is a con- tract of bailment. If the goods prove to belong to some per- son other than the attachment debtor, the bond is not collect- ible.^ The ckiimant who gives a delivery bond and gets possession of attached property is estopped from setting up the incapacity of the deputy who took the bond from him.'' §818. Burden of i)roof. — The claimant has the burden of proof to sustam his allegations.^ He has been allowed to prove declarations of the defendant tending to show that he did not own the attached property.^ If he attacks the grounds of the plaintiff's affidavit, it is held that the burden is on him to prove them false.^" He has been denied when offering to 1 Neal V. Newland, 4 Ark. 459. SLagomarcino v. Quattrochi (la.), When an intervener charged that 56 N. W. 484 ; Haynes v. Thompson, the attachment defendant had "no 80 Me. 125; Moors v. Goddard, 147 leviable interest," it v^as held to Mass. 287; Parlin u. Spencer (Kan.), mean no freehold estate in the land 33 P. 383 ; Swiggett. v. Dodson, 38 attached. Ducker v. Ware, 145 111. Kan. 703 ; State v. Spikes, 33 Ark. 658. 801; McCarthy v. Grace, 23 Minn. 2 Williams v. Vanmetre, 19111. 293. 182; Wallace v. Robeson, 100 N. C. 3 Smith V. Barclay (Minn.), 55 N. 207; Woolner v. Lehman, 85 Ala. W. 822; McMahon v. Merrick, 33 274: Wilson v. Hill, 17 Nev. 401; Minn. 262; Shoe Co. v. Ladd, 32 id. Harper v. Commercial, etc. Bank, 381; Donnelly V. O'Connor, 22 id. 309. 15 La. Ann. 136; Balder v. Cohen, 4 Rosewater v. Clothing Co. (Ark.), 42 Mo. App. 97 ; Teichman Com. Co, 25 S. W. 73; Mansf. Dig., g§ 356, v. Bank, 27 id. 676. See Blarks v. 358, 5020. Anderson, 1 Colo. App. 1 ; Sanders 5Kinnear v. Brunell, 17 Colo. 11. v. Page, 11 Colo. 518. 6 Mason v. Aldrich, 36 Minn. 283. 9 Wright v. Smith, 66 Ala. 514. "Spears V. Robinson (Miss.), 15 So. WMcCormick, etc. v. CoUiver, 75 111; State ?'. Depsedor, 65 Miss. 26 ; la. 559. Forbes v. Navra, 63 id. 1. §< 819, 820.] CLAIMANTS. 557 prove collusion between the plaintiff and defendant and to show that the plaintiff's demand was fictitious.^ AVhere such colUision may be charged, the evidence to support it should show that the plaintiff was helped b}'^ the collusive act or agreement; otherwise it would be insufficient.^ The plaintiff, in Missouri, may show an interpleader's claim to attached property to be fraudulent under a general denial of the plea,* though the rule is otherwise in equity.* g 819. JRcady for trial. — The intervenor must always be ready for trial, it is said; but if he has good reason for not being ready with his evidence upon the spur of the moment, his rights and interests ought not to be sacrificed or put in jeopardy in obedience to such rule. However, it is a common remark of the courts that an intervenor must be always ready, and cannot be permitted to retard the principal suit.^ But he may have sale postponed till his claim has been heard.*^ §820. What garnisUee liolds. — The property or funds in the hands of a garnishee may be the proper object of con- tention between the attachingcreditor and a claimant of such property or funds. But the claimant has no right to show that the garnishee has nothing, since he is admitted as a party in the case to establish his claim to what is attached — not to show that nothing is attached.'^ In Maryland, under the act of 187G, one who has had prop- erty taken from him as that of the defendant may intervene, bond the property in double the amount, and thus discharge 1 Desmond v. Levy (Miss.), 12 So. 6 Rarechide u. Enterprise, etc. Co., 481. 42 La. Ann. 1195. 2RawJins v. Pratt (La. Ann.), 12 7 ciark r. Gardner & Trustee, 123 So. 197. See Goodbar v. Bank, 78 Mass. 358, citing Boylen v. Young, Tex. 461; Meinhard v. Youngblood 6 Allen, 582; Peck v. Stratton, 118 (S. C), 19 S. E. 675. Mass. 406. The case turned some- ^FlrstN. Bank U.Kansas City Lime what upon Massachusetts statutes, Co., 43 Mo. App. 561; Springer v. but the principle seems good any- Kleinsorge, 83 Mo. 152, 156; Fox v. where. It is said in the decision: Webster, 46 id. 181; Greenway v. " Evidence that there were no goods, James, 34 id. 326; Edgellu. Sigerson, effects or credits of the defendants 20 id. 494. in the hands of the trustee at the 4 Reed v. Bolt, 100 Mo. 62; Smith time of the service of the writ upon V. Sims, 77 id. 269. luui would in effect prove the claim- 5 Richards v. Bestor, 90 Ala. 352; ant out of court." Gaines v. Page, 15 La. Ann. 108. 55S creditor's contests with third parties. [§ 821. the attachment. He may put both the title of the propert}' and his claim for damages at issue under that act.^ "Whether he is restricted to the remedy by intervention under this law, when notified, is questioned by the supreme court of that state.^ Ordinarily, intervention is optional.^ Sometimes the attaching creditor may cause a claimant to be made a party; as, in Maine, when the trustee or garnishee has disclosed that some third person claims the fund or property sought to be attached.* The interpleader, whose issue involves only his own title to the property attached, has no interest in the case if the prop- erty is not his. He therefore cannot, under such claim, attack any of the plaintiff's previous proceedings in the case on the ground of their irregularity.* The issue as to title cannot bo tried on rule in vacation.® §821. Claimant's motion to vacate attacliment. — "While it is no concern of the interveaor whether the attachment was regularly made or not, in case the property is not his but the defendant's, it is his concern if he is really the owner; and he may move to vacate it on grounds proper for him, as the claimant of ownership, to assert.'' Obvioush", he must have interest in the dissolution before he can move to dissolve.^ "Whether his interest is confined to personal property,^ or ma}'' be presented when his realty is involv^ed,^" it must be such that he would be injuriously affected by the perfection of the at- tachment in order to entitle him to make the motion for dis- solution when he is a mere intervenor in the cause. After having been adjudged the owner of the attached prop- erty, the intervenor may recover damages by suit against the attacher for the wrongful levy.'^ If the attached property 1 Turner v. Lytle, 59 Md. 199. 32 P. 635; Long v. Murphy, 27 Kan. 2 Id. 381. And such motion is not incon- 3 Richardson v. Hall, 21 Md. 399. sistent with his action of replevin * Look V. Brackett, 74 Me. 347. pending at the same time. Watson 5 Pace V. Lee, 49 Ala. 571 ; Moresi v. Jackson, 24 Kan. 442; White Crow V. Swift, 15 Nev. 215; Davis v. Fogg, v. White Wing, 3 id. 276. 58 N. H. 159. 8 Long v. Murphy, 27 Kan. 375. e New Orleans v. Morris, 29 La, ^ Gordon v. McCurdy, 26 Mo. 304. Ann. 241. 10 Bennett v. Wolverton, 24 Kan. 284 ■^Hines v. Kimball, 47 Ga. 587; ^ Frank v. Chaffee, 34 La. Ann. Kendall Shoe Co. v. August (Kan.), 1203. §§ 822, 823.] CLAIMANTS. 559 has been sold, the measure of damages is its value at the time of the levy and interest thereon.^ One who is the owner of property attached as that of an- other may either intervene in the suit to claim his property, or he may sue the sheriff or the purchaser without making himself a party to the attachment suit.- "When he has been adjudged the owner, he has his action against the sheriff lor wrongful seizure.* The judgment upon the intervention should decide upon his right to the property claimed;* it should not be a money judgment.^ § 822: Possessor. — One to' whom goods have been construc- tively delivered (as by bill of lading) may successfully inter- vene in the suit of a subsequent attacher." He has an interest to maintain without which he could not appear by interplea to recover the property or damages.' The garnishor of a debt cannot intervene and claim it as due to himself.^ It is held in Delaware that no one can intervene without statute authorization.^ §823. Hecovery. — The owner may replevy his property when it is attached, if it was taken from his possession.^" But when interplea has been filed and property claimed, if the judgment is averse to the plea, the intervenor cannot after- wards maintain replevin against the ofHcer.^^ If one intervenes and claims as due to himself a credit attached in the hands of a garnishee, he cannot recover if the attaching creditor abandons the garnishment.^^ The dis- missal of an attachment or garnishment leaves the inter- venor to proceed in a direct action. ^^ It is held that if the 1 Brasher v. Holtz, 12 Colo. 201 ; 6 Adoue v. Seeligson, 54 Tex. 593. Cornforth v. Maguire, id. 432. '^ Mayberry v. Steagall, 51 Tex. 351. 2Rodrigues v. Trevino, 54 Tex. ^^ bar uathy u. Whitehead, 69 Mo. 198. 28. 3 Clark v. Brott, 71 Mo. 473. 9 Pennsylvania Steel Co. v. New ^Hevvson v. Tootle, 72 Mo. 632. Jersey Southern R. R. Co., 4 Hous- 5 Rindskoff v. Rogers, 34 Mo. App. ton, 572. 126. But when summarily trying i^Lgwry V. Kinsej% 26 111. App. title to goods, the court may take 309. evidence of their value after hav- n Bray v, Saaman, 18 Neb. 519. ing adjudged them to the claimant. I'^^Peck v. Stratton, 118 Mass. 406. Schlinter v. Jacobs, 10 Colo. 449. See i^ Meyers v. Berotte, 41 La. Ann. Martin v. Hartnett (Tex.), 26 S. W. 745. 915. 5G0 creditor's contests with third parties. [§§ 82i, 825. plaintiff dismiss his suit before sale, he incurs no liability to laborers who have filed notices of claims against the defend- ant.i § 824. Malting imrties. — In Alabama, third persons, shown by the answer to be interested, may be brought into court and made parties; ^ but it is held in Missouri that courts have no right to order non-residents to come into an attachment suit and litigate thoir rights to an attached fund.* In Massa- chusetts it was held that the conflicting rights of two distinct, adverse claimants of funds in the hands of a trustee cannot be settled by proceedings under the trustee process.'* The prac- tice in ISTew York seems to be different.^ A court ordered an administrator to be made a party to a suit to reach funds in his hands and gave judgment against him, though he had not been notified. The judgment was void.'' The owner of an undivided interest in a chattel, attached in a suit against the owner of a like interest in it, may claim his right without making the other owner a party.'^ When such an owner, after being cast, moved a new trial, and filed the affidavit of another person claiming a half interest in the goods attached and averring belief that the mover did not know of this claim before the trial, the motion was refused.'' § 825. It has been held that the surety on the dissolution bond of the defendant may become claimant;® and that a person, interested before he was summoned by the plaintiff as garnishee, is not precluded from intervening to protect his interest by reason of the summons.^" An intervener on a trust deed, paid before the attachment judgment, can have costs which accrued before payment; and the pa3-ment may be proved under the issue." 1 Wells V. Columbia N. Bank, 6 6 Barnes v. Hays, 129 Pa. St. 554. Wash. 621; Hill's Code, § 3124. 7 Hamburg v. Wood, 66 Tex. 16S, 2Molton V. Escott, 50 Ala. 77; f*Choate v. Mcllhenny, 71 Tex. Boyd V. Cobbs, id. 82; Rowland v. 119. Plummer, id. 182. 9Redwitz v. Waggaman, 33 La. 3 Sheedy v. Second Nat. Bank, 63 Ann. 26. Mo. 17. ^^ Crone v. Braun, 23 Minn. 239. 4 Peck V. Stratton, 118 Mass. 406. ii Helm v. Gray, 59 Miss. 54. 5 Kelly V. Whiting, 51 How. Pr. 201. §§ 826, 82 T.J coMPE'iiTioN with mortgagees. 561 §826. Jurisdiction. — It has been held that an intervener, "who is a citizen of a state other than that where the suit is pending in which he intervenes, may have the cause removed to the federal court.^ Jurisdiction of the question between the interpleader and tlie plaintiff depends upon the validity of the attachment. If, for instance, there is no legal service of the writ, there is no suit between the parties to the interplea for want of juris- diction.- The record is before the court and need not be offered in evidence.^ An intervener may claim his own property attached in a justice's court, though it exceeds in value the amount over which the justice has jurisdiction.* A judgment in favor of the attaching creditor against a claimant should not be for the property attached. It ma}^ be for the sum claimed and damages.* YII. Competition with Mortgagees. § 827. Notice of unrecorded mortgage. — A creditor who has notice or knowledge of the fact that certain property has been mortgaged cannot attach it so as to gain priority over the mortgagee, even though his levy should precede the recording of the mortgage. The rule is that he is in no better position than a purchaser with notice would be; and certainly such a purchaser cannot defeat an unrecorded mortgage. It is against conscience — it is fraud in a purchaser, knowing of the mort- gage, to collude with the mortgagor in an attempt to do wrong to the mortgagee. It may be said that fraud is the reason for the rule with respect to such purchasers, but that that reason will not hold good with respect to an attaching creditor who has notice of the existence of the unrecorded iGilman v. Wheelock, 10 Bissell, ij. Jacobs, 10 id. 451; Mills u Thomp- 430. son, 61 Mo. 415. 2 Gibson v. Wilson, 5 Ark. 422. 5 Wetzel v. Simon (Tex. Civ. App.), 3 French v. Sale, 60 Miss. 516. 25 S. W. 792. See Martin v. Hart- ^Corthell v. Mead (Colo.), 35 P. nett (Tex.). 25 S. W. 1115; Same 741 ; Kinner r. Flanders, 17 Colo. 13 ; parties (Tex.) 24 S. W. 963 ; Tex. Rev. Cornforth v. Maguire, 12 id. 423; Stat., art. 4843, amended in 1887. Brasher v. Holtz, id. 203; Schluter Ten per cent, damages, in Texas. Rev. Stat., arts. 4840, 4841. 86 5G2 creditor's contests with third parties. [§ 828. mortgage. It ma}^ be said that he has rights as well as the mortgagee; that both may be creditors seeking to secure their just dues, and that his vigilance should prevail over the other's laches in the race for priorit}'". But the fact is that between the debtor of both, and the mortgagee, a valid lien has been created upon the property; it is not a lien that will be recog- nized by the world at large, for want of notice by recordation ; but it is one that the notified creditor, who subsequently at- taches, is bound to respect; and, although he may attach without collusion with the debtor, 3xt could he succeed in his attachment he would knowingly do the mortgagee a wrong; he would collect his debt of property from which the mort- gagee had the right of collecting his; he would thus defraud the mortgagee. § 828, The rule seems to be well founded that an attaching creditor with notice of an unrecorded mortgage cannot acquire a higher lien than that which the mortgagee has previously acquired, and cannot put himself in a better position, with respect to the mortgage, than the purchaser with notice of such unrecorded mortgage would occupy.^ An officer notified of a mortgage, when about to attach chattels, is bound by the notice.^ So, if notified of the rights of persons who are in possession of chattels.^ The attaching creditor, however, would gain rank above the mortgagee, should he attach, without notice and in gooti faith, prior to the recording of the mortgage.* And so, also, 1 First N. Bank v. Carter (Wash.), Gilbert, Freem. (Miss.) 85; Morton r. 33 P. 824; Stewart v. Smith, 60 la. Robards, 4 Dana, 258. 275 ; Mean v. New York, Housatouic - Stewart v. Smith, 60 la. 275. & Northern R. R. Co., 45 Ct. 225; 3 Bacon v. Thompson, 60 la. 284. Sibley r. Leffingwell, 8 Allen, 584; * Cross v. Fombey, 54 Ark. 170; Lawrence v. Stratton, 6 Cush. 167; Hanchett v, Ives, 133 111. 332; Bacon Pomeroy v. Stevens, 11 Met. 244; v. Thompson, 60 la. 284, overridiny Curtis V. Munday, 3 id. 405 ; Coffin Kessey v. McHenry, 54 la. 187 {see V. Ray, 1 id. 212; Priest v. Rice, 1 Crawford v. Nolan, 70 la. 97); Hurt Pick. 164; Prescott v. Heard, 10 v. Redd, 64 Ala. 85; Carter v, Cham- Mass. 60; Tucker v. Tilton, 55 N. H. pion, 8Ct. 549; Theall v. Disbrow, 39 233; Young v. Walker, 12 id. 507; id. 318; Bacon v. Thompson, 14 N. W, Daggett V. McClintock, 56 Mich. 51; 312, re-affirming Boothby v. Brown. Daniels v. Sorrells, 9 Ala. 436 ; Dixon 40 la. 104, and Hickok v. Buell, 51 V. Lacoste, 1 Smedes & M. 70; Tay- id. 655, and overruling Kessej v. Mc- lor V. Echford, 11 id. 21; Walker v. Henry, 54 la. 187. See Cummins r. § S29.] COMPKTITIOX WITH MORTGAGEES. 563 if the mortgage is recorded but with an inadequate descrip- tion of the debt to be secured ^ — not sufficient as notice. But if the description is not misleading, the notice will be suffi- cient.2 If knowledge is proved, creditors are incapable of creating a lien in their own favor by attachment of the mortgaged property of such character as to outrank the mortgage.^ It has been thought fraudulent for a person, with notice, to at- tempt to forestall such a lien while the lien-holder is using due dilio-ence to get it recorded.^ ,§ 829. Contemiilated mortgage. — If, however, the lien is not 3^et good between the contracting parties, the creditor wish- ing to attach is not bound to respect the intention of those parties. They may intend to make a mortgage, and the at- taching creditor may make his lien first. This he has the right to do; and an attachment lien created under such cir- cumstances will outrank a mortgage subsequently made and duly recorded,^ and will be in advance of an assignment not fully consummated.^ A chattel mortgage is absolutely void, in Kansas, if not deposited with the register of deeds, as Tovey, 39 id. 195 ; Allen v. McCalla, ^ Bramhall v. Flood, 41 Ct. 68. The 25 id. 464, 482; McGarranr. Haupt, 9 rule is, in Connecticut, that "the id. 83; Crawford v. Benton, 6 id. 476; condition of a mortgage deed must Miller v. Bryan, 81 id. 58; Beamer give reasonable notice of the incum- V. Freeman, 84 Cal. 554; Brown v. brance on the land mortgaged in Bank, 77 id. 544; Merrill v. Hurl- order to affect the creditors of the hurt, 63 id. 495; Martin v. Thomp- mortgagor who have no notice of son, id. 550; Woods V. Bugby, 29 id. the real incumbrance." Pettibone 471; Gassnert?. Patterson, 23 id. 300; v. Griswold, 4 Ct. 158; Shepard v. Farmers', etc. Co. v. Minn. Works, Shepard, 6 id. 37; Stoughton v. 35 Minn. 546; Mann v. Flower, 25 Pasco, 5 id. 144; Hubbard v. Sav- id. 503; Linderman v. Ingham, 36 age, 8 id. 215; Booth v. Barnum, 9 Ohio St. 1; Kilborne v. Fay, 29 id. id. 286; Sanford v. Wheeler, 13 id. 264; 23 Am. Rep. 741; Hanes v. Tif- 165; North v. Belden, id. 376; Hart fany, 25 Ohio St. 549; Crippen v. Ja- v. Chalker, 14 id. 77. cobson, 56 Mich. 386; Bracket v. 2 jjibbard u. Zenor, 82 la. 505; also Harvey, 25 Hun, 502; Southard v. same title, 75 id. 471. Benner, 72 N. Y. 427; Granger v. » Booth v. Gish, 75 la. 451. Adams, 90 Ind. 88. An attachment * Priest v. Rice, 1 Pick. 168. lien on personal property ranks a * Pushing v. Hurd, 4 Pick. 253, deed of trust notf recorded in the 257; Carter v: Champion, 8 Ct. 549. county though recorded in another ^^Varden r. Adams, 15 Mass. 233; state. Ballard v. Great Western, First N. Bank v. Ranch Co. (Wyo.), etc. Co. (W. Va.), 19 S. E. 510. 36 P. 821. oGi creditor's contests with third parties. [§| 830, 831. ao'ainst an attachment of the chattels in a suit ao:ainst the mortgagor, unless the mortgagee is in possession.^ § 830. Presum])tion of notice. — One who takes a mortgage on attached propert}' is presumed to have notice of the at- tachment;- and he takes rank below the attaching creditor,* just as a junior attacher does. The ownership of the attached property being in the defendant up to the time of sale, he is perfectly competent to mortgage it, or to create any other form of lien, by convention, though he cannot, by any such act, dislodge the lien previously acquired by the first attacher. In marshaling the liens the}' are ranked according to their date, whether they are attachment liens, mortgages or priv- ileges of any other description, except such as have priority of law because of their nature — such as court costs, burial expenses, and the like. The law of notice applies to all, though presumption of notice varies in different states, AVhere recordation of attachment liens is required in order to give notice to third persons, the attacher cannot neglect it with impunity. § 831. Releasing part of attaclicd ])ro2)erty. — After two tracts of land have been attached, one of them may be re- leased and the other held to secure the whole amount of the claim sued upon. If, after the attachment of both, the debtor should mortgage one tract, and that tract should be the one upon which the attachment is retained, the mortgagee will not be entitled to priority over the attaching creditor to the amount of the value of the released tract. In other words, ^Gen. Stat, of Kan., §8903; Par- suit and file their claims, all to be lin V. Spencer (Kan.), 33 P. 363; paid pro raia if allowed, all of such Jewell V. Simpson, 88 Kan. 363; junior attachers will outrank the Ramsey v. Glenn, 83 id. 271. In Ne- mortgagee whose mortgage is later braska, a motion by a mortgagor to than the original attachment though dissolve chattel attachment, when older than the filing of the junior denied, is not reviewable when the attachers' claims. Fee ?'. Moore, 74 mortgage has been foreclosed, if the Ind. 319. In this state the right of mortgage was given to defraud or creditors to file claims terminates delay creditors. Darstu. Levy (Neb.), with the final judgment and order 58 N. W. 1130. of sale of the attached property. 2 Fee V. Moore, 74 Ind. 319. Cooper v. Metzger, 74 Ind. 544, in 3 Huxley v. Harrold, 63 Mo. 516. construction of 3 R. S. of Ind., 1870. In Indiana, where creditors may p. 110. come into the original attachment §§ 832, 833.] COMPETITION WITH MORTGAGEES. 565 the attaching creditor did not give up his right to make all his claim out of one tract b}^ releasing the other from seizure.^ If one of two tracts of land, or one of two articles of per- sonal property, after attachment, has been released, it is as though it had never been attached; so that a mortgage put upon it after attachment, or a second lien by attachment put upon it after the first attachment, would hold good. In a suit to have certain deeds adjudged to be mortgages so that the land (nominally conveyed) would be under mortgage lien, the owner's equitable interest was held not attachable.- § 832. Mortgage to secure indorser. — Though a mortgage of personal property be given merel}' to secure the mortgagee against liability as indorser for the mortgagor, the lien thus created outranks that made by a subsequent attachment of the property thus mortgaged. Though the note indorsed may not have matured, and the lien upon the mortgaged property be therefore contingent, yet the mortgagee has preference over the attaching creditor.^ He may intervene to have such preference declared.* § 833. Paging mortgagee. — The creditor, if not prevented by the mortgage lien from attaching, may tender to the mort- gagee the amount of his eventual liability, if he wishes to re- move the prior lien. By paying or tendering that amount, the creditor can retain his attachment.^ The mortgagee is not bound to sell his right. The officer could not take actual possession of the property, so as to detain it under the attach- ment writ, unless the creditor should pursue this course, when the mortgagee has the custody of the property. The latter would be the lawful custodian.^ If, under such circumstances, the property should be attached as in the hands of a third person, and the mortgagee garnished, the lien so created 1 Johnson v. Bell, 58 N. H. 395. 5 Rogers v. Abbott, 128 Mass. 103 ; 2 Macauley r. Smith, 57 Hun, 585. Bicknell v. Cleverly, 125 id. 164; 3 Rogers V. Abbott, 128 Mass. 102. Codaian v. Freeman, 3 Cush. 306; * Langert v. Brown (Wash. T.), 13 Flanagan v. Cutler, 121 Mass. 96 ; P. 704. A preference given to cred- Goulding v. Hair. 133 id. 78; Mc- itors by a failing creditor executing Donald v. Faulkner, 34 id. 154. mortgages to them is no ground for '^See Applewhite v. Mill Co., 49 dissolving an attachment laid by an Ark. 279; Merrill v. Denton, 73 Mich, unfavored creditor. Gregory Gro- 034. eery Co. v. Young (Kan.), 36 P. 713. 506 ckeditor's contests wrrn third parties. [§ 834. would be subsidiary to that of the mortgage. If the attaching creditor would gain immediate custod}' of the thing by the officer he must first pay the mortgage,' provided the mort- gagee will agree.- He may refuse his consent and prevent attachment, or claim the possession, if disturbed. A mort- gagee demanding the release of mortgaged chattels from attachment should describe or identify them.^ Reference to the recorded mortgage containing a description would be suf- ficient.* § 834. Mortgage iy a partner. — Though a partner may have mortgaged partnership property to secure his individual creditor, the latter will not have a higher privilege than a creditor of the firm who subsequently attaches the same prop- erty for a debt of the firm. Such attachment lien will out- rank the mortgage, as it will also outrank a prior attachment against the same property in a suit against one of the part- ners only for his separate debt. But a mortgage of partner- ship property, made in good faith by an insolvent firm to secure a debt of the firm and also one of a member, was held good against a subsequent attachment b}'^ a creditor of the firm.^ A mortgage upon propert}'- of a partnership, executed by a member to secure his separate debt, will hold good if the other members release their claims upon the property thus mort- gaged. Though at the time such mortgage is given the mort gagor owns only his share of the surplus after partnership debts are paid, and although the release of the claims of other partners is made after the execution of the mortgage, yet the act purported to corer the entire property, and the release by the other partners is a ratification of the act.^ There is a condition when the lien, by mortgage or by at- tachment, depends upon a settlement of the partnership affairs: there is none when the lien is upon partnership prop- erty in a suit against the partnership. This seems to be the ^Fox V. Cronan, 47 N. J. L. 493; 321; Harding v. Coburn, 12 Met. 54 Am. Rep. 190. (Mass.) 333, 340. 2 Cochrane v. Rich, 143 Mass. 15. 5 Smith v. Smith (la.), 54 N. W. 3 Woodward v. Ham, 140 Mass. 73, reversing (Ta.) 50 N. W. 64. 154; Wing v. Bishop, 9 Gray, 223. ^ go held substantially in Fargo v. * Moriarity v. Lovejoy, 23 Pick. Ames, 45 la. 491. §§ 835, 83G.] coMrETiTiox with mortgagees. 567 oiil}'' reason why an attachment lien on partnership propert}', creiXted by a suit against a partnership, should be allowed to outrank a prior lien created against such property in a suit against a member of the firm for liis own debt. g 835. Lien for advances. — One who has a lien on goods for money advanced must have it recorded or must give no- tice to an attaching creditor if he would maintain his lien as superior to that of such creditor.^ If the attacher knows of the existence of the lien for advances, or that of a vendor for purchase-money, it is immaterial from what source his knowl- edge is obtained; he is bound to respect it.^ Any notice of such pre-existing liens answer the purposes of recording, so far as the attacher is concerned.^ The burden is on the prior lien-holder to show notice;* and it has been thought that he must show that the notice emanated from himself;^ but if the attacher knew of the fact it ought not to matter whence his information came. Whenever knowledo^e is brought to the court that attached property does not belong to the debtor free from incumbrance, but that there are liens resting upon it older than the attachment lien, there should be no disposi- tion made of it which would pay the attaching creditor at the cost of the prior lien-holders. If, prior to attachment, the defendant has put property into the hands of one of his creditors to be held till payment, the person thus holding has a lien superior to that of the subse- quently attaching creditor.® If, after the issue of the writ, the sheriff holds it up by the plaintiff's order, the defendant may make a valid mortgage which will outrank the attach- ment lien created by a subsequent levy.'' § 836. The attaching creditor may contest the mortgage and resort to all the grounds the mortgagor could urge against the mortgagee in order to protect his attachment lien.* Tak- 1 Quinn v. Halbort, 55 Vt. 224, 227. ^Whitcomb v. Woodworth, 54 Vt. 2 McPhail V. Gerry, 55 Vt. 174. 544. ^Kelsey v. Kendall, 48 Vt. 27; » Stevens r. Wrisley, 30 Vt. 661; Allen V. McAUa, 25 la. 464; McGov- Bank v. Drury, 35 id. 469. ern v. Haupt, 9 id. 83; Boyd v. Beck, ^ Greely r. Reading. 74 Mo. 309. 29 Ala. 703; Ue Verdal v. Maloone, "Gray's Adm'r v. Patton's Adm'r, 25 id. 272; Bearing v. Watkins, 16 13 Bush, 625. id. 20; Smith & Co. v. Zuchee, 9 id. spjerce v. Hall, 12 Bush, 209. 208; Magee v. Carpenter, 4 id. 469. 568 creditor's contests with third parties. [§§ 837, 838. ino^ a mortCTasre for an amount in excess of the debt is held a badge of fraud if the purpose is to save the debtor from other creditors.^ But though a chattel mortgage covers property acquired after its execution, it is preferred to an attachment of later date if the mortgagee is in possession.^ Whether in mortgaged property left in the hands of the morto:ao:or there is an interest which is attachable in a suit against him depends on the question whether his possession is qualified or unqualified. If the former, the answer is neg- ative.^ If the latter, the answer is alHrmative; there is an in- terest which may be attached.* § 837. The fact that store-goods are mortgaged, with the right of the mortgagor to go on making sales and applying the proceeds to the mortgage debt, is not against the right of a junior creditor of the mortgagor to have an account of the sales taken when he hasobtained judgment.^ If the mortgage is valid, only the surplus (if any) goes to the attacher.^ Manifestly, if a mortgage is void for any cause, it is no im- pediment to attachment. A mortgage on intoxicating liquors is void in Kansas, and also void as to other goods mortgaged with them: so, after the delivery of such liquors and other goods to the mortgagee, they ma}' be attached despite the mortgage, on a proper ground for attaching.'^ § 838. The attachment operates only on the defendant's interest; it cannot displace the lien of a third party already acquired, or affect his title ;^ but if there is illegality in the act of mortgage, the attaching creditor is competent to show 1 Showman v. Lee, 86 Mich. 556. gagor keeping and selling. Sauer v. 2 Petring v. Heer, 90 Mo. 649. See Behr, 49 Mo. App. 86. See Sullivan First N. Bank v. Bank, 71 la. 486. Savings Inst. v. Kelly, 59 N. H. 160; 3 Welch 17. Whittemore, 25 Mo. 86 ; Proctor r. Green, id. 350; First N. Ashley v. Wright, 19 Ohio St. 291; Bank v. Wittish (Fla.), 15 So, 552. Eggleston v. Munday, 4 Mich. 298. « Frantz v. Hanford (la.), 54 N. W. ■^So repeatedly held in Missouri. 474. Merchants' N. Bank v. Abernathy, Tirst N. Bank v. Gerson (Kan.), ;;2 Mo. App. 211; Foster v. Patten, 32 P. 907-8; Flersheim v. Gary, 39 37 Mo. 529; Boyce v. Smith, 16 id. id. 179. See Tucker v. Adawis, 63 317; Yeldell v. Stemmons. 15 id. N. H. 361. 443; Dean v. Davis, 12 id. 113; King 8 Metts v. Insurance Co., 17 S. C. V. Bailey, 8 id. 333. 120. See Taylor v. Hines, 31 Mo. SElsworth V. Phelps, 30 Hun, 646. App. 623. It is a badge of fraud — the mort- §^ 839, S-iU.] cuMPi/riTioN wiiii Assiti^' i-:es. 569 it; and he must do so or yield the priority.^ He not only has all the rights of the mortgagor in his attack upon the mort- gagee, but more: he is not estopped from exposing a simu- lated transaction when the attachment defendant was a party to the fraud. But an attachment subject to chattel mortgages cannot be maintained a2:ainst the mortgafjees on the ground that the mortgagees are fraudulent as to other creditors when not so as to the attaching creditor.- §839. Promissory note — Liens. — The owner of a promis- sory note assigned to him, which is not governed by the law merchant, holds it subject to all equities existing before the assignment. lie cannot disturb the rights of third persons acquired through judicial proceedings brought by an attach- ing creditor (who has no notice of the assignment) against the maker of the note.'' Even a mortgage mav be foreclosed in such an attachment proceeding, and the purchaser of land mortgaged to secure such a note as that above suggested would acquire good title to the land, and would hold it dis- charged of the mortgage.* A judgment rendered against the maker as garnishee, in an attachment suit against the payee, is a good defense to an action against the maker by an as- signee of the note, brought on the note, if the maker had had no notice of the assignment when the judgment was rendered against him as garnishee.* YIII. CoMPETrnox WITH Assignees. § 840. An assignee who intervenes without filing the as- signment may be ordered to state his daim more specific- ally.^ He must state and prove the existence of a debt when he sets up its assignment to him as the basis of his claim. ^ 1 Mize V. Turner (Ky,), 22 S. W. 83. & Miss. etc. Co. v. Alvey, 43 id. 180 2 Rosenfield v. Case, 87 Mich. 295. Barton v. Allbright, 29 id. 489 ^ See Sulzbacher v. Shoe, etc. Schoppenhast u. BoUman, 21 id. 280 Bank, 52 N. Y. Superior, 269; Yen- Shetler v. Thomas, IG id. 223. See able V. New York Ins. Co., 49 id. Yates v. Dodge, 123 III. 50. 481, 6 Sanger v. Flow, 48 Fed. 152. See < Sharts v. Await, 73 Ind. 304. Boltz v. Eagon, 34 id. 432, in which sCanaday v. Detrick, 63 Ind. 485; an assignee for the benefit of cred- Greenman V. Fox, 54 id. 267; Ohio itors intervened to claim restoration 7 Blackley v. Matlock, 3 La. Ann. 366. See Williams v. Finer, 10 id. 277. 570 creditor's contests with third parties. [§ 841. In Rhode Island an assignment must be without preference, in order to discharge an attachment, except the preference specially authorized by statute;^ and there, the assignment of partnership property only, when the debtor has other assets, will not avoid an attachment.- Property of a firm composed of a resident and non-resident cannot be assigned, in that state, so as to release attachment. Resident insolvents may assign for the benefit of their cred- itors.^ When an attachment has been released by assignment, under the statute cited, the plaintiff is entitled to costs if there has been no decree for an accounting of the partner- ship estate of the receiver.* In Louisiana, cession to all his creditors by the debtor, upon its acceptance by them, dissolves a prior attachment.'^ §841. Void assignment. — In New York it was held that the sheriff's title relates back to the time of the demand and gives the attaching creditor a lien ranking that of a sub- sequent assignee.^ When property capable of manual deliv- ery has been levied upon b}'' a sheriff under a warrant of attachment, the attaching creditor may maintain an action to have a prior assignment (executed b}' the defendant) declared fraudulent and void, and to have the priority of his attach- ment lien established.'^ And he may do so, though the de- fendant has confessed judgment in favor oi the assignee, and execution has been issued upon such judgment.^ The sheriff, of the assigned property, of which 2 Aldrich v. Arnold, 13 R. I. 655. he had been dispossessed by the at- ^Pub. Stat, of R. I., ch. 237, § 12; taching creditor. An insolvent as- Wheelock, In re (R. I.), 28 A. 966; signed his attached property, and Alves t\ Barber, 17 R. T. 712; Phil- the attaching creditors agreed that lips v. Newton, 12 id. 489. the sheriff should give the assignee ^Bank of America, etc. v. Bur- possession subject to their lien, dick (R, I.), 28 A, 967. Plume, etc. Co. v. Caldwell, 26 N. E. 5 Shwartz v. Claflin, 60 Fed. 676 ; 599. Only by considering the as- Lafollye u. Carriere, 24 id. 346; Tua signee the sheriff's keeper of the v, Carriere, 117 U. S. 201. property could the lien have been *> Anthony v. Wood, 29 Hun, 289. rightly maintained. The assignee's Toley, In re, 10 Daly, 4; Meyer v, independent possession would show Black, 4 N. M. 190; Leon v. Scram, want of jurisdiction in the attach- 58 Tex, 524. See PosthofE v. Schrei- ment case. Bush v. Nance, 61 Miss, ber, 47 Hun, 593. 287. « Bates v. Plonsky, 28 Hun, 112. 1 Noyes v. Johnson, 13 R. I. 183, §§ 842, 843.] COMPETITION WiTH ASSIGNEES. 571 if sued by the assignee for making the attachment levy on the property as that of the assignor, may show that the as- signment is void as to the attaching creditor.^ But the fact that a general assignment is void, by reason of an insertion in the act authorizing compromise with debtors and sale upon credit, does not authorize an attachment to issue under sec- tion 636 of the Code of Procedure.^ A debtor's assignment of his property held by a third per- son will not hold against a prior attachment in the hands of such third person, though the sheriff had been denied posses- sion on demand.^ §842. Assignment in foreign state. — An assignment made in one state, of personal property in another, is doubtless good Ul"; between the assignor and the assignee so soon as it has been executed and actually or constructive!}' delivered. If mailed to the assignee, it is constructively delivered to him as soon as it is put into the postoffice, since the carrier's posses- sion is that of him to whom he bears the letter or package. 1*^0 actual delivery of the personal property described in the assignment is absolutely necessary to the completion of the title of the transferee.* Is such assignment good as to third persons? "Would it de- feat an attachment of the propert)^ made after the mailing of the instrument by the assignor and before its receipt by the assignee? That must depend upon the lex rei sitce. If the assignment, made in another state, is valid against third per- sons by the law where the property is situated ; if the policy and the juridical morals of both states agree; if the assign- ment would not have contravened the law of the state in which it is to be executed, had it been made there, the trans- fer is good as to third persons; and it would defeat an attach- ment made after the constructive delivery of the instrument but before its actual receipt by the assignee.^ § 843. In Missouri it was held that an assignment which was void by the law of another state where it was made would outrank an attachment made in Missouri b}' a non-resident, when the assignment was delivered before the attachment 1 Carr v. Van Hoesen, 26 Hun, 316. * Johnson v. Sharp, 31 Ohio St. 618. 2 Milleken v. Dart, 20 Hun, 24. &Id. 3 Anthony v. Wood, 29 Hun, 239. 572 CREDITOR S CONTESTS WITH THIRD PARTIES. [§ 844. was served, and was recorded before the writ of execution nnder the attachment judgment had been issued, since the assignment was such as would have been valid if made in Missouri.^ If an assignment is valid where made but void where it is meant to have effect, it ought not to be maintained against a subsequent attachment made at the latter place. If the law of the former place allows preference among creditors to be created by the assignment, while that of the latter inhibits such practice as fraudulent, the assignment cannot be enforced in the latter. § 844. For 'benefit of creditors. — A general assignment by an insolvent, for the benefit of all his creditors, cut off an at- tachment made within four months before the assignment, by provision of the late bankrupt law of the United States. The adjudication vested the property in the assignees.^ As that law is no longer operative, it seems idle to discuss whether the right of an attaching creditor, vested under the statute of his state, could be constitutionally divested by a subsequent general assignment in bankruptcy. The property of an Insolvent bank may be attached before a receiver has been appointed or before the sheriff has been put in possession by the court.'' If a receiver is afterwards appointed, the attachment lien holds good.* Under a statute of Nevada, the attachment lien is preserved and ma\'^ be enforced by judgment and execution, notwith- standing an order staying proceedings against the insolvent debtor in pursuance of the act for the relief of insolvent debt- ors.* In Oregon, attachment is dissolved b}^ an assignment to creditors, and a subsequent judgment and sale in the attach- ment proceedings are void.^ In any state having a general statute of this character, it 1 First National Bank v. Hughes, 3 Arnold v. Weimer (Neb.), 58 N. 10 Mo. App. 7. W. 709; Hubbard v. President, etc., 2 U. S. Rev. Stat., § 5044; Barker 7 Mete. (Mass.) 340; Walling v. V. McLeod, 14 Nev. 148, 153; Good- Miller, 108 N. Y. 173; Von Roun r. Ime V. King, 55 Cal. 377; Risley v. Superior Court, 58 Cal. 358. Brown, 67 N. Y. 160; Miller v. < Arnold r. Weimer, si/j^ra. Bowles, 58 id. 253; Morgans. Camp- 5 Benjamin v. Stern, 14 Nev. 41"). bell, 22 Wall. 381; WestPhila. Bank ^McKinney v. Baker, 9 Oreg. 74; V. Dickson, 95 U. S. 180. Tichenor v. Coggins, 8 id. 270. f§ S-15, 84G.] COMPETITION WITH ASSIGNEES. 57iJ must be considered that a creditor suing out an attachment does so subject to the law, that his right by reason of his at- tachment is only conditionally vested. § 845. Partnershii) iwopertij. — An attachment lien on the property of a firm was held to entitle the holder, who had had it matured b}'- judgment, to intervene in a bankruptcy proceeding against the property of the firm, subsequently sur- rendered, because one of the two members of the assigning firm l.ved out' of the country so that the court could not ad- judge both to be bankrupts.^ This seems right when it is considered that the intervenor's judgment was against the property that had been attached. But, after the filing of the petition in bankruptcy, no attachment lien could be subse- quently^ obtained that would support an intervention in the bankruptcy proceedings, if all the bankrupts are legally be- fore the court.- An assignment of partnership property by one member of the firm, if ratified afterwards by the firm, was held good from its date as to the assio^nee but not as ao^ainst a creditor who had attached before the ratification.^ In Georcjia an attachment suit need be af):ainst no more than one partner, though brought on a debt of the firm ;^ and that is so wherever there is solidarity of obligation. If the in- terest of one partner is to be executed under a judgment against him, property belonging to his firm may be seized in order to sell such interest, in Kansas.^ A partnership was dissolved. One partner assumed all the debts and took all the property, with consent of the other, in consideration of notes given him by the latter, who sued upon them and attached the effects of the late partnership. It was held that a firm creditor could not intervene.^ ^^^Q. Fraud. — Collusive attachment, just prior to an as- signment by the debtor, for the purpose of giving preference 1 Burton & Watson, Matter of, 9 » Hershfield v. Claflin, 25 Kan. 166. Ben. 324. 6 Stansell v. Fleming, 81 Tex. 294; 2Vogel & Reynolds, Matter of, 9 Nojes ^•. Brown, 75 id. 458; Building Ben. 498. Ass'n v. King, 71 id. 7C9; Johnson v. 3 Holland v. Drake, 29 Ohio St. Heidenheiiner, 65 id. 263; Nenney r. 441. Schluter, 63 id. 827; Pool v. Sanford, * Cannon v. Dunlap, 64 Ga. 6S0; 52 id. 621; Whitman v. Willis, 51 id. Ga. Code, § 3276. 421 ; May berg v. Steagall, id. 351. 5T-i creditoe''s contests with third parties. [§ S-iT. to certain creditors, may be set aside at the instance of other creditors, even though they may not yet have proved their claims, it is said.^ The right to set it aside is clearer when there is no ground for attachment.^ And an assignee is not precluded, by a judgment sustaining attachment on the ground that the fund in the garnishee's hands was fraudulently as- signed, from intervening and asserting his rights as assignee.^ § 847. Receivers. — A creditor who has attached certain property of his debtor cannot intervene to oppose the ap- pointment of a receiver in a suit by other creditors against the same defendant.^ A judge cannot direct a receiver, appointed by another court in another case, to take charge of property attached in his court. The attaching creditor has the right to have the property remain in the court where he brought his action.^ * 1 Moore v. Stege (Ky.), 18 S. W. 2 Frieberg v. Frieberg (Tex.), 1^ 1019. An assignment for the bene- S. W. 791. fit of creditors ranks above an at- ^ Menkel v. Gumbel, 57 Miss. 756. tachment writ issued but not exe- * State ex rel. v. Court (Wash.), 34 cuted. Blakely v. Smith (Ky.), 26 P. 430. S. W. 584. 5 Id. *See, relative to assignment, §§ 262-267, 270, 870, 413-427, 544, 743. i CHAPTEE XXL RIGHTS OF PURCHASERS. I. Buying Before Levy of Attachment §§ 848-855 II. Before Amendment of Defects 856-863 III. Purchase at Attachment Sale 863-867 IV. No Warranty of Title 868-870 V. Judgment Owners' Sales as to Warranty — Differ- ence Between Them and Attachment Sales . . . 871-872 VI. General Liabilities of Sellers 873-875 I. Buying- Before Levy of Attachment. § 848. Intervention. — An intervenor may claim attached property as purchaser before the levy.^ When the plaintiff answered the interplea, and averred that the purchase was fraudulent, and praj'ed for judgment against the intervenor, was the suit changed to an equitable action? Held tiot, as the prayer was unnecessary.^ § 849. Evidence. — The burden of proof is generally upon a purchaser who bought of the defendant before the levy, when he intervenes to claim the property.^ If the attaching cred- itor admits the purchase by the intervenor, but charges fraud, he has the burden;* and he must also prove that, prior to the purchase, the vendor was indebted to him, to justify his seiz- ing and holding the property.^ An intervenor, to support his claim as purchaser from the defendant before levy, may offer a bill of sale unsealed but executed by the manager of the defendant corporation, prov- 1 Wallace v. Maroney, 6 Mackey, Co., 86 S. C. 319. See Fink v. Philps, 221; Maus v. Bome, 123 Ind. 522; 30 Mo. App. 431. Moss r. Sanger (Tex.), 12 S. W. 616; •» Morgan v. Wood, 33 Mo. 255; Frieberg v. Sanger (Tex.), 12 S. W. Stephens v. Oppenheiiner, 45 Ark. 1136; Meredith v. Wilkinson, 31 492; Holt v. Moore, 37 id. 645; Mo. App. 1. Beecher v. Brookfield, 33 id. 259; 2Markley v. Keeney (la,), 54 N. Clinton v. Estes, 30 id. 216; Kemp- W. 251. stead v. Johnson, 18 id. 123; Lahiite 3 Richards v. Viccaro, 67 Miss. 516; r. Fiere, 42 La. Ann. 864. Central R. & B. Co. v. Georgia, etc. '= Day v. Kendall, 60 la. 414. 576 EIGHTS OF PURCHASERS. [§ S50. ing the execution by the manager,^ The attachment affi- davit is not admissible as evidence against the intervener who claims to have purchased before the levy,^ as it is not in any case of the plaintiff's, to prove the facts stated therein, against third parties.^ It was held that a letter to the claimant's wife's attorney by a firm, admitting its indebtedness to her, is admissible on her claim of property transferred to her by the firm, in a suit of creditors against the firm in which the property was at- tached, when it is not shown that the debt sued on antedated the letter.^ But if the debt was anterior, the letter would be inadmissible.^ Evidence that the attached property was bought by the defendant for the intervenor, and partly paid for, but that the intervenor paid the balance, was admitted.'' § 850. Contract to sell land. — The title to real estate passes from the vendor to the vendee upon the completion of the contract, and the delivery of the deed is conclusive between the parties. The recording of the deed relates back to the date of the contract, though not in such sense as to afi'ect the title of a bojia fide purchaser who has bought after such contract and before such recording. After the levy of an at- tachment, the execution of a deed of sale does not relate back to the date of purchase so as to dislodge the attachment lien.'' In such case the purchaser has no lien for the purchase- money paid of higher rank than the attachment lien.^ The buyer at the attachment sale takes title, if a purchaser from the debtor has not recorded his title before the levy and re- turn,^ But only the debtor's interest is affected by the at- tachment lien; even unrecorded interests of others are unaf- 1 Gary Lumber Co. v. Cain, 70 Miss, 80; Wliite v. O'Bannon, 86 Ky. 93. 628. ' 100. 2 Dollins V. Pollock, 89 Ala. 351. s Voorhies v. Eiting, sxi'pra; Jones 3 Plume, etc. Co. v. Caldwell, 35 v. Allen, 88 Ky. 381. See Fox v. 111. App. 49-3, 494. Ark. etc. Co., 53 Ark. 450. 4 Bell V. Kendall, 93 Ala. 489; Pul- ^ Thompson v. Shackelford (Tex.), liamy, Newberry 41 id. 168; Dwight 24 S. W. 980; art. 4332, Sayles' Civ. V. Brown, 9 Ct. 83. Stat, of Texas ; Wright v. Lassitei-. sZelnicker v. Brigham, 74 Ala. 71 Tex. 644; Lewis', v. Johnson, 6S 598. id. 450 ; Borden v. McRae, 46 id. 39(i : 6 Wilson V. Lucas, 78 Tex. 292. Grace v. Wade, 45 id. 522. Comjmre 7 Voorhies v. Eiting (Ky.), 22 S. W. United States v. Howgate, 2 Mackt-y (D. C), 408. § 851.] BUYING BEFORE LEVY OF ATTACHMENT. 577 fected if the purchaser at the attachment sale have notice of them.^ It is said: "Until a sale has been made under a judg- ment or attachment, the lien acquired is subject to all prior unrecorded deeds and equities existing against the land." ^ Even if land has been fraudulentl}^ sold before attachment of his interests therein, the sale will hold against the levy, if the debtor's vendee has resold it to an innocent purchaser after the levy, and both deeds are recorded — so held in Xew Hampshire.^ § 851. The object of the record is to give notice to the world, and to protect subsequent purchasers from imposition as well as to secure the first vendee from disturbance.'' But registry is not an exclusive means of notification. Knowl- edge of the contract of sale and delivery of the unrecorded deed, however acquired, is equivalent to registry, so far as the second purchaser is concerned. Such second purchaser, with knowledge of the first sale, could not perfect his title by hav- ing it recorded prior to the registry of the first transaction, since both his purchase and his registry would be vitiated by his fraud.^ The onus of establishing such fraud by proving knowl- edge on the part of the second purchaser would be upon him who should attack such recorded title; and he would be re- quired to prove it clearly, since it would not suffice to render the fraud merely probable.^ 1 Hope V. Blair, 105 Mo. 85 ; Davis Jackson v. Sharp, 9 Johns. 168 ; Jack- V. Ovvenby, 14 id. 171. sou v. Burgott, 10 id. 457; Dey v. 2 Hope V. Blair, supra; Maupin v. Dunham, 2 Johns. Ch. 190; Norcross Emmons, 47 Mo. o05; Black v. Long, v. "Widgery, 2 Mass. 506; Farusworth 60 id. 182; Martin t\ Nixon, 92 id. 30. v. Childs, 4 id. 637; Davis v. Blunt, 3 Ashland Bank v. Mead, 63 N. H. 6 id. 489; Prescott v. Heard, 10 id. 435; Hoyt i'. Russell, 56 id. 564; 60. It is held that personal prop- Piper V. Hilliard, 52 id. 211; True v. erty in possession of the sheriff in a Congdon, 44 id. 48; Flingu. Goodall, suit to i-emove a cloud on a title 40 id. 208; Gordon v. Haywood, 2 id. may be attached. Voss v. Murray 402. See Fletcher v. Pack, 6 Cr. 87, (Ohio), 33 N. E. Rep. 1112; Sherman 133; Jackson v. Van Dalfsen, 5 v. Fitch, 98 Mass. 59. Johns. 53; Jackson v. Henry, 10 fsHine i-. Dodd, 2 Atk. 275 ; Jack- id. 185; Jackson v. Terry, 13 id. 471; son v. Given, 8 Johns. 137; Jolland Jackson v. Walsh, 14 id. 407 ; Ander- v. Stainbridge, 3 Ves. Jr. 478 ; Nor- son V. Roberts, 18 id. 515. cross u. Widgery, 2 Mass. 506; Hinds ■* Hall u. Gould, 79 111. 16. v. Keith. 57 Fed. 10; Skipper v. 5 Worseley v. De Mattos, 1 Burr. Reeves, 93 Ala. 332 ; Stix v. Keith, 474 ; Le Neve 17. Le Neve, 3 Atk. 654 ; 85 id. 465; Bernheim v. Dibrell 37 57S EIGHTS OF PURCHASEKS. [§ 852. § 852. Attacker s hnoivledge of the sale. — An attaclier of land who knows that his debtor has «old it though the deed of sale has not been recorded is in the sanue predicament as a sec- ond purchaser with such knowledge. The title having passed from his debtor, he cannot attach the property as that of his debtor without attempting a fraud upon the vendee.^ But the onus is upon the vendee or grantee to show knowledge of his purchase on the part of the attaching creditor, in case of contest between them. If he has not come into possession, or made improvements, or performed some act of ownership, the presumption would be against the grantee who has not re- corded his title.^ An attacher of land who does not know that his debtor has sold it may validly attach it before registry of the sale,'' even though the deed is in the hands of the registrar for the pur- pose of being recorded.** In such case, though the attaching precede the recording but for an hour, the creditor is entitled to the benefit of the maxim prior in tempore^ potior in jure. This rule, however, is not universal. There' is a statutory pro- vision in California under which it was held that a deed executed prior to the levy of the writ of attachment, but re- corded afterwards, will outrank the attachment.^ And in Missouri it was held that a deed made prior to an attachment but recorded afterwards, before the attachment sale, would rank the attachment lien.^ A deed honestly given while at- tachment is pending will hold good against a subsequent attachment.^- Whether it is honest is a question for the jury.^ So far as knowledge of a previous conveyance affects the validity of the transaction, Nthe attachment of land is like the (Miss.), 11 So. 795; Miss. Code of ^sigourney u. Larned, 10 Pick. 72. 1892, §g 159, 4429. 5 Hoag v. Howard, 55 Cal. 564. 1 Lamberton v. Merchants' N. ^ First National Bank v. Hughes, Bank, 24 Minn. 281. See North- 10 Mo. App. 7; Chandler v. Bailey, western, etc. Co. v. Mahaffy, 3l5 Kan. 89 Mo. 641 ; Black v. Long, 60 id. 152; Holden v. Garrett, 23 Kan. 98. 181; Harrington v. Fortner, 58 id. ^ McMechan v. Griffing, 3 Pick. 468 ; Cape Girardeau v. Reuf roe, 58 149, 157 ; Priest v. Rice, 1 id. 164 ; id. 272 ; Sappington v. Oeschli, 49 id. Doev. Routlege, Cowp. 712; Wyatt 244. V. Barwell, 19 Ves. Jr. 435. 7 Dixon v. Barnett, 3 Wash. 645. * Jackson i;. Chamberlain, 8 Wend. 8 jrieischtuan v. Bowser, 62 Ftd. 620 ; Jackson v. Post, 15 id. 588. 259. ^ 853.] BUYING BEFORE LEVY OF ATTACHMENT. 579 purchase of it. Both the attacher and the purchaser of land which they know to have been convej^.ed previously are alike at fault. What is sufficient notice to the one is sufficient to the other.^ § 853. Attacliment as inircliase. — Considered as in the nat- ure of a purchaser, the attaching creditor is deemed to have made his purchase at the time of the laying of the attachment writ upon the land ; for, if execution should follow, the pur- chaser at the sale would look to the state of things existing when the property was attached. So far as the validity of the title is concerned, the legal creation of the attachment lien is all-important. If notice of a prior deed, unrecorded, would strike the attachment with nullity (as it would strike a purchase), t^A(3;i must such notice be conveyed to the creditor: when he attaches or when he proceeds under execution after judgment in an attachment case? It is when he attaches — execution being merely the effectuating of the act then begun. ^ An attaching creditor can be on no higher ground than his debtor in attaching equitable interests.^ He cannot maintain an action to redeem land covered by his attachment from a mortgage executed by his debtor.* An attachment will not hold good against an equitable title.^ Land sold with the deed not recorded cannot be at- tached as the property of the vendor so as to defeat the vendee's unrecorded title, if the vendee is in possession before the levy, thus putting the attaching creditor upon inquiry.^ If, however, a valid attachment lien has been acquired, it would not be lost by the defendant's subsequent gaining of posses- sion by moving upon the land.'' Where the law requires that a transcript of the attachment levy must be recorded, a purchaser without notice, buying be- fore the recording, gets title free from the attachment.^ iLamont i\ Cheshire, 65 N. Y. 30; 424; Lippitt v. Am. Paper Co., 15 Coffin V. Ray, 1 Met. 212, 215; Priest K. I. 141. V. Rice, 1 Pick. 164; Somes u. Brewer, ^Xucker v. Vandemark, 21 Kan. 2 id. 184; Bateman v. Backus (Dak.), 263, 268; Moore v. Reaves, 15 id. 150; 34 N. W. 66. Joluison v. Clark, 18 id. 157; School 2 Coffin V. Ray, 1 Met. 212. District v. Taylor, 19 id. 287; Greer 3 Wood V. Thomas, 39 Tenn. 160. v. Higgins, 20 id. 420, 426. < Fisher v. Tallman, 74 Mo. 39. ^ Hiatt v. Buliene, 20 Kan. 557. 5 Brooks V. Bush (Ky.), 1 S. W. » Benjamin v. Davis, 73 la. 715. 580 EIGHTS OF PDKCHASEKS. [§§ 854, 855. § 854. Sale to defeat creditors. — " It is the well-settled rule in this state [Iowa] that the levy of an attachment upon real estate which the attachment debtor has conve\^ed to another to defeat his creditors, unless followed by supplemental pro- ceedings, creates no lien upon the property so attached." ^ A petition to set aside a fraudulent conveyance and to sub- ject the land, attached as property of the grautor, to a judg- ment rendered, is ineffectual if it fails to describe the land correctly. A decree following it does not affect the title or give ground for sale.^ The sale would convey no right.'* Land was deeded in trust for the benefit of creditors. Be- fore sale under it by the trustee some of the creditors, alleg- ing the deed to be fraudulent, attached credits of the grantors in the hands of the trustee. It was held that attachment did not affect the sale and ratification.* But when an owner con- veyed land to be reconveyed to his wife, yet made no recital to show that the deed was in trust, it was successfully at- tacked by a creditor of the grantee while the deed to him stood upon record.^ §855. Fraudulent imrcliase. — Property fraudulently pur- chased cannot be attached in a suit against the purchaser so as to defeat the rights of the person defrauded.^ If a pur- chaser from his debtor has possession, another creditor cannot attach the property as that of the debtor unless he shows the sale to have been fraudulent.^ Such sale may have been against a prohibitory statute yet not fraudulent as to cred- itors.^ 1 Boggs V. Douglass (la.), 56 N. W. 5 Nelson v. Henry, 2 Mackey (D. C), 413 {distinguishing Taylor v. Brans- 259. combe, 74 ia. 536); Clark v. Ray- G De Wolf v. Babbett, 4 Mason, 289 ; niond, 84 id. 251 ; Boyle v. Maroney, Bradley v. Obear, 10 N. H. 477 ; Wig- 73 id. 71 ; Howland v. Knox, 59 id. gin v. Day, 9 Gray, 97 ; BuflSngton 46. Compare Bridgman v. Mc- v. Gerrish, 15 Mass. 156; Hussey v. Kissock, 15 id. 261. ^'ee Lippencott u. Thoruton, 4 id. 405: Galbraith n Wilson, 40 id. 428. Davis, 4 La. Ann. 95 ; Parmele v. 2 Boggs V. Douglass, supra. McLaughlin, 9 La. 436 ; Gasquet v. 3 Id. ; Ward v. Brewer, 19 111. 291 ; Johnson, 2 id. 514. Rogers ?;. Abbott, 37 Ind. 138 ; Keep- ■? Smith v. Bean, 15 N. H. 577; fer V. Force, 86 id. 87; Runnells v. Smith v. Foster, 41 id. 215; Horton Kay lor, 95 id. 504. v. Buffington, 105 Mass. 399. 4 Herzberg v. Warfield, 76 Md. 8 Blass v. Anderson, 57 Ark. 483. 446. §.; 85G, £57.] PURCHASE before amendment of defects. 581 If a transfer is void the attaching creditor may disregard it, whether it has been declared void or has not been passed upon judiciall}'.^ A transfer without consideration will hold against an attacher whose proceeding is not conformable to statute.- A transfer of land by a wife, when her husband did not join in the deed, was maintained by the purchaser usrainst an attachment of the land in a suit against the hus- band and wife.^ Purchasers of attached property, pendente lite, need not be made parties to the attachment suit.* A creditor, after having obtained a personal judgment, issued execution and had the judgment satisfied in part. He then brouofht an attachment suit to recover the balance and again obtained judgment, but it was held a nullity on review as the first was sufficient.^ II. Purchase Before Amendment of Defects. §856. When no lien. — ^When third persons have acquired right to or in property, at a time when the attaching creditor has acquired no lien whatever, they cannot be affected by a subsequent judgment in favor of the attaching creditor. The purchaser of property at a judicial sale provoked by the at- taching creditor in execution of a judgment upon a void writ or warrant cannot hold against a purchaser from the defend- ant though the latter may have bought after the levy.^ If property has been attached under defective proceedings which are subsequently amended, may the debtor sell or hy- pothecate it before the amendment so as to give the purchaser or morto-a^ee a rig-ht to or in it free from anv attachment lien? § 857. The hypothetical character of the lien needs a word of explanation. It is different at different stages of the pro- ceedings prior to judgment. When the issue of the writ cre- ates the lien it is on the condition that the execution of the writ and all other proceedings necessary to judgment shall 1 Lamberts. Saloy, 37 La. Ann. 3. ^Canda v. Powers, 38 N. J. Eq. By attaching, the creditor elects to 412. treat the conveyance as void. Bost- ^ Hanover Ins. Co. v. Connor, 20 wick V. Blake, 145 III. 85. 111. App. 297. 2Ahern v. Purnell, 62 Ct. 21. 5 Hart v. Seymour, 147 111. 598. 6 0'Farrell v. Heard, 22 Minn. 189. 5S2 RIGHTS OF pueciiasp:rs. [§ 857. follow; and where the execution of the writ creates the lien^ it is on the condition that such proceedings shall follow; and, under both practices, the preliminary requisites must have been observed before such lien, dependent upon subsequent judgment, can be leg{ill37^ brought into being. If seizure has been made and the summons returned unserved and publica- tion has been ordered, what is the character of the lien at thatstas:e? The debtor has not been reached: can he sell the seized property free from the lien? If he can, the attach- ment remedy would often prove worthless. The attaching creditor must have due time in which to comply with stat- utory requirements. He is guilty of no laches when he has caused a summons to issue and publication to follow: it is the law which requires a period in which the advertisement shall stand and fixes the time for' the sheriff's return showing the publication, and it may be owing to uncontrollable circum- stances that the debtor cannot be brought into court. There is a space of time between seizure and the completing of the time of notice when the attachment proceeding has not been brought home to the defendant; and then, though the lien de- pends upon the publication for the full time, the character of it is such that the defendant cannot convey the attached property free from the incumbrance. It has been held that a. pending attachment proceeding cannot be treated collaterally as void for errors that are amendable.^ If, however, the pre- liminary statutory requisites have not been observed, or the observance has been fatally defective, or the notice issued is void for any cause, the defendant may sell the attached prop- erty free from lien, and an honest purchaser would acquire a good title from him at this stage. 1 Barber v. Smith, 41 Mich. 138. Bank, 13 Johns. 127; Pate u Bacon, ^eeTilton v. Cofield, 93 U. S. 163; 6 Munf. 219; Totty v. Donald, 4 id. Kimball, etc. Man. Co. v. Vroman, 430; Barnett v. Watson, 1 Wash. 35 Mich. 310 ; Merrill V. President, (Va.) 372; Bentley v. Smith, S etc. of Kalamazoo, id. 211 ; Smith v. Caines, 170 ; Lewis v. Locke, 41 Vt. 11 ; Canfield, 8 id. 493 ; Final v. Backus, Wright v. Hale, 3 Cush. 486 ; Crafts 18 id. 218; Johnson v. Huntington, v. Sykes, 4 Graj', 194; Nimmon v. 13 Ct. 47; Tobey y. Claflin, 3 Sumn. Worthington, 1 Ind. 37G; Jones©. 379; Brace v. Benson, 10 Wend. 214; Miller, 1 Swan (Tenn.). 319, relative Bartholomew v. Chautauqua Co. to amendments in attachments and Bank, 19 id. 99; Lynch u. Mechanics' other proceedings. §§ 85S-SG0.] PURCHASE BEFORE AMENDMENT OF DEFECTS. 583 § 858. If preliminaries were merel}" irregular but the issued notice void, the subsequent general appearance of the defend- ant would cure both and render the seizure good, as to him- self, from its date. But, viewed from the position of one who meanwhile honestly has purchased or acquired a lien, the question is whether he would be affected by the subsequent appearing of the defendant, thus healing the defect of the publication? It was held that a writ, void because it did not contain any tlirection to the sheriff to summon the defendant as required by statute, and because the affidavit did not state the debt to be due as required, and did not state the amount of indebted- ness above all legal set-offs, could be amended only as be- tween the parties, so that rights of third persons intermediately acquired could not be affected by the amendment.^ § 859. Illustration. — ^The action was brought by Brunette, sheriff, against Whitney for trespass by replevying timber held under attachment. The validity of the attachment was drawn in question; and it was held void on the grounds above stated. Could such void writ be amended i Mr. Justice Paine, in delivering the opinion of the court, said that the statute of amendments then in force was " very broad and liberal. It provided that the court in which any action was pending might * amend any process, pleading or proceeding in such ac- tion, either in form or substance, for the furtherance of jus- tice,' etc. But I think this relates only to such defects as do not render the process absolutely void. There must be some- thing to amend, and a void writ is a nullity. To amend in such a case would be to create a writ anew, giving it a retro- active effect." 2 He added that if a void writ can be helped by amendment, it can be done only so as to affect the par- ties — not a third person who has acquired rights before the amending.^ § 800. In the attachment suit under which the sheriff had held the timber, the defendant had appeared and thus healed the want of notice so far as he was concerned, but Whitney 1 Whitney r. Brunette, 15 Wis. 61. ner r. Van Alstine, 9 Johns. 386; 2 Citing Bunn v. Thompson, 3 Kyles v. Ford, 2 Eand. 4. Johns. 190; Burk v. Barnard, 4 id. ^Citing Witte v. Meyer, 11 Wis. 309 ; Bell v. Austin, 13 Pick. 90 ; Gar- 300. 5Si EIGHTS OF PUKCHASERS. [§ 861. had bought the property before the healing of the defect; and as he was not a party to that suit, his title was unaffected by the emendation. It is true that he bought of the attachment defendant, but it was held that he was not therefore a privy in such a sense as to render the judgment that followed preclusive against himself. The learned justice said: ''It is true that privies as well as parties are bound b}'' a judgment. But I do not under- stand that rule to go so far as to hold purchasers bound by subsequent litigation in respect to the property between their vendors and others. Privies, within the rule, are those who, subsequently to the litigation, succeed to the rights of the parties." It was contended that, because the attachment defendant had appeared and moved to set aside the attachment and had had judgment against him, the decree sustaining the proceed- ings Avas res judicata^ to which the court say that "the true answer to this position is that the decision of a court, in a proceeding in which it has not jurisdiction, does not give it jurisdiction. . . . Upon any other principle the decision of any tribunal not having jurisdiction, in favor of its juris- diction, would give its judgment equal validity with that of a court having jurisdiction. The question in every such case is: Was there jurisdiction? and not: Did the court assuming to exercise it declare that there was? And the power to decide upon its jurisdiction is not the ver}'^ jurisdiction in question. For ever}'^ court has this power, and if that gave it jurisdiction it would be the duty of every court in all cases to decide in favor of its own jurisdiction, for the very power to decide at all on the question would show that it had the jurisdiction, which is an absurdit}^." § 861. Conceding that the personal judgment against the attachment defendant after his general appearance was res judicata as to him, the court concluded that it did not oper- ate on the attached timber nor affect the title of the purchaser who had bought of the defendant before he had appeared. As suggested by Chief Justice Dixon in the same case, this principle has frequently been recognized in contests between com))eting attachers. When the senior attachment has been void for want of the statutory requisites, a junior one has § SG2.] rUKCIIASE BEFORIi AMENDMENT OF DEFECTS. 585 been given the precedence, though the former's defects have been subsequently supplied ; and, when not supplied, the junior attacher may have the senior writ set aside.^ Ill the latter case the same court held that the statutory requisite that "in all cases where publication is made the complaint shall be first filed, and the summons as published shall state the time and place of such filing," is essential to the jurisdiction; and that if the property attached be sold by defendant after such publication and before his voluntary appearance in the case, the purchaser would obtain a good title.2 § 862. Before the appearance of the defendant in the last- cited case, judgment by default had been rendered and the land attached had been sold under execution. He then ap- peared to move the setting aside of the judgment and execu- tion ; and this, because of allegations affecting the merits, was held to be a general appearance, curing the defect of the publication so far as he was concerned, but not affecting the rights of the purchaser acquired while the attachment pro- ceedings were yet void.. The contest was between two pur- chasers: one buying under the execution and the other buying of the attachment defendant before the defect of the proceed- ings had been cured. It was a case of ejectment by the latter against the former. The judgment in the attachment suit was res adjudicata between the parties to it, and therefore unassailable by col- lateral attaciv so far as the personal decree was involved; but the res of the ancillary proceeding was not the propertv of the defendant, and the judgment must be understood to have reference to it only as his property. The general doctrines that a judgment conclusive between the parties cannot be collaterally impugned by either of them, except for fraud or 1 Lawless v. Hackett, 16 John. 145; 3 id. 199; Price v. Jackson, 6 Mass. Davis u. Morris, 21 Barb. 152; Johns- 242; Gardner v. Hust, 2 Rich. 601; ton V. Fellerman, 13 How. 21 ; Von Walker v. Roberts, 4 id. 561 ; Bar- Beck V. Shuman, id. 472; Plummer net's Case, 1 Dall. 152; Kennedy v. V. Plummer, 7 id. 62 ; Schoolcraft v. Baillie, 8 Yeates, 55. Thompson, id. 446; Chappel v. Chap- 2 \nderson v. Coburn, 27 Wis. 558, pel, 2 Kern. 215; Fairfield v. Bald- reaffirming Whiti:ey v. Brunette, win, 12 Pick. 388; Denny f. Ward, supra. 586 EIGHTS OF PURCHASERS. [§§ SG3, SG4. want of jurisdiction/ and that a valid attachment, a valid judgment and a valid sale give the purchaser a valid title,^ do not preclude one who was not a party to the proceedings, and who did not acquire his title from a vendor who was a party when he sold (for had he then been a part}'- the purchaser would have been a privy), from suing to recover his own by ejecting a wrongful possessor. The heirs of a vendor would be concluded, as his privies, should he convey his interest by deed, to care supposed defects of a title from judicial proceed- ings.^ III. Purchase at Attachment Sales. § 863. Statutory ])roceedin(js. — When all the proceedings including the sale are in accordance with statute and the gen- eral law applicable, the purchaser obtains a title perfect as to the parties and their privies in the attachment suit. His title is also good against the notified debtor-owner of legally con- demned propert}'- who did not take the position of a party defendant in the case; and good against such debtor's privies. As to all these, the attachment judgment is res adjudiGata, and therefore they cannot attack it collaterally. § 864. Jurisdiction. — The purchaser must look to the juris- diction, if he would be secure as a bidder at the sale. He need not concern himself about the erroneous exercise of juris- diction by the court, when the judgment is final. The rule is comprehensively and yet succinctly stated by the supreme court of the United States: "The doctrine of this court and of all the courts of this country is firmly established, that if the court in which the proceedings took place had jurisdio- tlon to render the judgment it did, no error in its proceedings which did not affect the jurisdiction will render the proceed- 1 Abbott V. Seniple, 25 111. 107; N. v. Fitzpatrick, 11 id. 81 ; Tallman v. A. R. R. Co. V. Combs, 13 Ind. 490; McCarty, id. 401; Upper Miss. Co. Ulmer v. Hiatt, 4 G. Greeue, 439; v. Whittaker, 16 id. 221; Foot v. Clark V. Blackwell, id. 441; Fee v. Stevens, 17 Wend. 483. Iron Co., 13 Ohio St. 563; Geurmell 2 Mattingly v. Boyd, 20 How. 128; V. Rice, 13 Minn. 400; Kipp v. Ful- Carney v. Emmons, 9 Wis. 114; lerton, 4 id. 473; Fulbright v, Caune- Lackey v. Seibert, 23 Mo. 85; Cockey fox, 30 Mo. 425: Campbell v. Moore, v. Milne, 16 Md. 200. 3 Wis. 767; Stonach v. Glessner, 4 id. 3 Mason v. Tuttle, 75 Va. 105. But 278; Allen v. Lee, 6 id. 478; Barnum see French v. Wade, 102 U. S. 132. § 805.] PURCHASE AT ATTACIIMEXT SALES. 5ST ings void; nor can error be considered when the judgment is brought collaterally into question." ^ With this rule to guide him, the purchaser must look to the statute which conferred the special "jurisdiction to render the judgment" and see whether all the conditions precedent have been observed. If any one has been disregarded he will purchase at his peril. He cannot safely rely upon decisions based on other statutes, with reference to errors, but he must see Avhat the statute governing the judgment under which he proposes to buy requires to be done before such jurisdiction can be exercised.'- §865. Collateral attaclc. — While errors in the exercise of lawful jurisdiction to render the judgment cannot be investi- gated in a collateral inquiry, the jurisdiction itself can be. A court's decision in favor of its own authority may be collater- ally disregarded. A jurisdictionless judgment is entitled to no faith and credit either in the state where it was rendered or in any other. The action of a court of general jurisdiction cannot be investigated in a state other than that in which it was had, except for the purpose of testing the judicial right of action.^ 1 McGoon r. Scales, 9 Wall. 30, re- the progress of the case were beyond asserted in White v. Crow, 110 U. S. the reach of collateral inquiry and 189. could be assailed only in a direct 2 In Tilton v. Cofield, 93 U. S. 165, proceeding had for that purpose be- the court cited Voorhees v. Bank of fore a competent tribunal." Let the United States, 10 Pet. 449, in which purchaser be sure that the statutory jurisdiction had been sustained authorization of jurisdiction in the though (1) " no affidavit as required state where he bids allows such er- by statute was found filed with the rors to be committed vvithout fa- clerk, and the law provided that if tality when only custodial jurisdic- this was not done the writ should be tion has been acquired. See Statu- quashed on motion;" (2) no notice torj-Requisites Jurisdictional, §§625- was given or none appeared of rec- 634 ; Guaranty Trust Co. v. Green ord ; (3) default, required by statute. Cove Railroad, 139 U. S. 145-148. Avas not made; (4) the required de- The affidavit, appearing of record lay of twelve months before sale was in the attachment proceedings, is disregarded. Of this case it is said not questionable on a subsequent in Tilton v. Cofield: "The court trial of rights to the property at- there [the trial court] being dompe- tached between parties or privies, tent to take jurisdiction, and having Roos v. Lewyn (Tex.), 24 S. W. 538. acquired jurisdiction bj" the seizure ^ Gilchrist v. West Virginia Oil and of the property, this court held that Oil Land Co., 21 W. Va. 115; 45 Am. all its acts and orders made during Rep. 555. The plaintiff sued on a 5S8 EIGHTS OF PDKCHASEES. [§§ 866, 867- AVere the highest tribunal of the country to render a juris- dictionless judgment, the decision would not be authoritative. It would not be binding as a precedent upon that court or any other. Should it exercise judicial authority in any case after its jurisdiction thereof had been exhausted; or assume special jurisdiction — such as that in all attachment cases — when none had been statutorily conferred; or trespass beyond the bounds of the special power legislativeh'- granted in such cases, its deliverances would be coram nonjudice. They would there- fore be void as authority, though binding on the litigants ex necessitate rei, since there would be no means of relief. The mandate to the lower court would be obeyed in any such case, but the opinion delivered would not be law. § 866. The collateral assailant can takfe no advantage by reason of the want of jurisdiction in an ancillar\' proceeding when there has been a judgment rendered against the defend- ant which is personal in effect as well as form by a court pos- sessed of jurisdiction to render such personal judgment though not to decree privilege upon the property; and when the sale was made in execution of such personal judgment. A rival attacher in strictly statutory proceedings may indeed assert any attachment lien he may have acquired upon property sought to be executed in effectuating the personal judgment; he may ev^en follow such property when it is in the hands of the purchaser under the personal judgment; but his position is precisely like that of any lien-holder who was not a party to the suit. To make the matter plain — if the property (bought under a personal judgment, good though the attach- ment proceedings were null) belonged to the defendant and was unincumbered, the purchaser's title is good and cannot be impugned by the defendant or his privies because statutory requisites have been disregarded in an accompanying attach- ment proceeding which proved void for want of them. § 867. General and limited jyrocecdings in rem.— A stranger to a jurisdictional judgment and sale, claiming to be the owner of the property sold as that of the attachment defendant, may New York judgment and attached York — so neither the debtornor his property in West Virginia, but that property had been reached there, judgment was held void because no- See ante, §§ 644-653, TERRITORIAL tice was by publication only, and no Limits, and the authorities there property had been attached in New cited. § SGS.] NO WARRANTY OF TITLE. 589 sue the purchaser and have him ejected. This is so because attachment proceedings are limited in their effect to the pro- prietary right of the defendant. The distinction pointed out in the first chapter (and which has interlarded all the succeed- ing ones) between proceedings against property of limited, and those of general, character must now appear of great practical importance. The former conclude the defendant and his privies; the latter conclude all the world, since "all the world are parties," as it is often said, though " there are no parties defendant," as it is said as frequently — the legal paradox being readily apprehended and reconciled. No one can sue a purchaser for property bought at a valid sale, which had been condemned under general proceedings against it, without becoming a collateral assailant of the judg- ment of condemnation; and, as such, he must prove fraud or want of jurisdiction before he can maintain his action; for the general notice made it obligatory upon him to appear as claimant to assert an}'' right he had hi or to the 7'es proceeded against; and a failai'e thus to appear rendered him powerless ever to sue thereafter, if the proceeding was free from fraud and by a court possessed of power to hear and determine the cause. He is precisel}' in the position of a judgment defend- ant in an attachment case who should attempt to assail the judgment rendered against his property. On the other hand, one not a party to a limited proceeding against property (such as attachment is) is not a collateral assailant of the judgment when he sues the purchaser who bouirht under the iudoinent. He is not concluded. He mav freely admit the jurisdiction of the court and the compliance with all statutory requisites, yet aver that the property seized and sold was his own. The purchaser at an attachment sale should therefore not only see that the court had jurisdiction and thus know that he will be protected from attack by the defendant, but he should also see that the title he proposes to buy was really in the defendant. lY. Xo Warranty of Title. § 868. Caveat emptor.^ T\\qvq is no warranty of the title. The judicial sale is provoked by a creditor; it is strictly a creditor's sale. Want of warrautv is not because the sale is 590 EIGHTS OF PURCHASERS. [§1869, 870. judicial but because it is not the owner who moves the court. The creditor has no special means of knowing more of the title sold than the purchaser has. The debtor does not war- rant, since he does not sell. The judge is not the vendor and is therefore no warrantor. The executing officer is a mere instrument of the law; and though presumed to know that what he sells is the defendant's, he gives no guaranty. Caveat emptor. §869. Creditors lUibilitij. — Exception to the general rule of no responsibility in creditors' sales must be briefly pointed out. The creditor, though not ordinarily presumed to know the title sold, any more than the judge or sheriff does, is yet the beneficiary of the sale — the recipient of the price. It has been held that if his gain is another's loss by reason of any agency of his, he is liable to be made to repair the wrong. In other words, it has been held that if the plaintiff in execu- tion is instrumental in causing the seizure and sale of property which does not belong to the judgment debtor, and the pur- chaser is ejected at the suit of a third person on an anterior and superior title, the purchaser can recover the price of the plaintiff " upon the principle that he has parted with his money, through the agency of the plaintiff, for a considera- tion which has failed." ^ The writer would not be understood to say that mere agency in causing the sale always renders the creditor responsible. In all execution sales the creditor is instrumental in causing the seizure and sale. It is emphatic- ally so in attachments, as the propert}'- attached is taken by the officer before judgment and often long held before final sale; especially is the instrumentality of the attaching cred- itor apparent when he points out property of the defendant to be attached and takes the o"bligation of an indemnity bond to the sheriff. § 870. False inducements to l)uy. — Doubtless the creditor, who causes a purchaser to buy property of the debtor through false assurances that the latter has a good title, may be held 1 Sanders v. Hamilton, 3 Dana, Hackiey's Ex'r v. Swigert, 5 B. Mon. 550 ; Brummel v. Hurt, 3 J. J. Mar. 88 ; Bartholomew v. Warner, 32 Ct. 709; Hanna v. Guy, 3 Bush, 93; 98; Piscataqus v. Kingsbury. 73 Me. Bromfield v. Dyer, 7 id. 505; Wol- 326. ford V. Phelps, 2 J. J. Mar. 35; § STL] JUDGMENT owner's SALES AS TO WARRANTY. 591 pecuniarily responsible for the wrong done the purchaser who is afterwards evicted because the title proved to be not what it was thus represented to be. It does not follow that the creditor may be cited in warranty in the ejectment sdit. It is not possi- ble that he can make the title good. He was not the vendor. The sale was not an owner's sale. As to the creditor's being the beneficiary, he raaj^ be considered such rather than the court or the executing officer can be; but the debtor is the real beneficiary, since he gets his debt paid out of the prop- ert}'^ of another owner. The creditor is only even: he had a judgment, and that is satisfied. The debtor is the real vendor; the court makes him sell against his will. He is not a warrantor consequently, for he is not a voluntary vendor. The conclusion is that ordinarily there is no warranty, though there may be pecuniary liability to the misled and evicted purchaser, on the part of the creditor who provoked the sale and fraudulently misrepresented the character of the title, thus entitling the purchaser to equitable relief.^ Y. Judgment Owners' Sales, as to Warranty — Difference Between Them and Attachment Sales. § 871. Judicial sales provoked by owners are governed by the reverse rule. There is warranty ; and the maxim caveat emptor is inapplicable. There is no difference, with respect to obligation of warranty, whether the sale by an owner be conventional or judicial. There is nothing sacred in the mode of sale which makes the owning vendor a guarantor under the one method and an irresponsible contractor under the other. All the reasons that render a private vendor responsible for the title he conveys apply when any proprietor sells through a court. Nearly all judicial sales are provoked by judgment credit- ors: so, in nearly d^^caveat emptor is applicable; and because such sales are so much more common than owners' court-sales, the idea has become popular that this mode of sale relieves from warranty. Were the subject now specially in hand, » Cooper V. Cooper, 4 Irish Eq. (N. Eq. 325 ; Preston v. Frye, 38 Md. S.)75; Lawrence r. Connell, 4 Johns. 322; Norton v. Movers, 25 Ga. 89. 592 EIGHTS OF PURCHASERS. [§ 872. many illustrations of responsibility on the part of the seller, and relief to the purchaser, might be suggested.^ The mode is immaterial. The owner cannot escape responsi- bilit}^, whether his sale is private or judicial. He is " bound to know that he actually has that whicli he professes to sell."^ If he conve^'s nothing, payment of the price to him would be " without the shadow of consideration," and he, though act- ing by honest mistake, could not retain the price.^ § 872. Government sales.— Governments selling as owners necessarily employ some agent of sale, and usually sell through the courts; but they are none the less morally bound to make good the conveyance; and ours has made itself legally so by authorizing suits against itself in the court of claims upon any contract expressed or implied, which includes the express or implied contract of warranty. The rule governing private contracting parties is fully applicable to the sovereign vendor when he makes contracts, and must be applied by courts in which he allows himself to be sued;" for, otherwise, his con- sent to be sued would be delusive.^ 1 Sands V. Lynham, 27 Gratt. 304; McLaughlin's Adm'r v. Daniel, 8 Dana, 182; Valle's Heirs v. Fleni- ming's Heirs, 29 Mo. 152; Shroyer v, Nickell, 55 id. 269 ; Evans v. Snyder, 64 id. 516 ; Hudgens v. Hndgens, 6 Gratt. 320 ; Howard v. North, 5 Tex. 315; Mocklee v. Gardner, 2 Har. & G. 176; Grant v. Lloyd, 12 S. & M. 191; Petty v. Clark, 5 Pet. 481; Preston v. Frye, 38 Md. 222 ; Schwin- ger V. Hickock, 53 N. Y. 280 ; Davis V. Railroad, 1 Woods, G61; Bland v. Bowie, 52 Ala. 152, 162 ; Bell v. Craig, id. 215 {see McQuiddy v. Ware, 20 Wall. 19; Gay v. Alter, 102 U. S. 79) ; Strode v. Patton, 1 Brock, 228 ; Smith V. Wells, 69 N. Y. 601 ; Ingersoll v. Mongam, 84 id. 622. 2 Allen V. Hammond, 11 Pet. 72; Garnett v. Macon, 2 Brock. 185; Gardiner v. Mayor, 26 Barb. 423, and cases cited ; Martin v. McCormick, 4 Seld. 331 ; 17 Com. Bench (N. S.), 721 ; 1 Met. (Ky.) 192-3. . 3 Allen V. Hammond, 11 Pet. 63, 71, 72; Hart v. Swayne, Law Rep. 7 Ch. Div. 42 ; Hitchcock v. Giddings, 4 Price, 135; Conturie v. Hastie, 5 H. Lords Cas. 673, 681 ; Daniel v. Mitchel, 1 Story, 190; Torrance v. Bolton, L. R. 14 Eq. 124; Rice v. Dwight Man. Co., 2 Gush. 80; Thompson v. Gould, 20 Pick. 139, 141, and cases cited ; Gai-dner v. Lane, 9 Allen, 492. 499; Paddock v. Kittredge, 31 Vt. 383; Martin v. Mc- Cormick, 4 Seld. 331 ; Sugden on Vendors and P. 120 (14th ed.) ; Fish v. Street, 27 Kan. 270. 4McKniglit V. United States, 98 U. S. 186. See Marsh v. Fulton, 10 Wall. 696: United States v. Arre- dondo, 6 Pet. 711; Polk v. Wendall, 9 Cr. 87-99. If the plaintiff's money is "wrongfully in the treasury*, and an implied contract results in the nature of a contract for money had and received, he can, on the plainest principles of common justice, main- § ST3.] GENERAL LIABILITY OF SELLERS. 593 In government cases of forfeiture, the judicial sales that fol- low condemnation are not in execution of the judgment. The government becomes the owner by the forfeiture, and need not sell at all. It does not become a judgment creditor bound to sell to effectuate the judgment. It sells because it does not choose to become a general property-holder, and because the statutes authorizing the forfeiture proceeding usually pro- vide for sale to follow. Some of such statutes provide for the retention of the condemned res by the government; one or more authorize its private sale. In proceedings in rem against hostile and guilty things, the libelant becomes the owner upon judgment of condemnation — rather, he is judicially recognized as having been the owner from the date of the forfeiture now judiciall}^ declared: so he sells as owner, through the court. In such proceedings against things indebted, he sells as judgment creditor, and therefore does not warrant the title. For the same reason the attach- ment creditor does not w^arrant it, though he sells to enforce a judgment in rem. YI. General Liability of Sellers. § SYS. Error and fraud. — A brief digression may be al- lowable to show the duties and liabilities of vendors. Lesfal as well as moral fraud invalidates a sale. It is legal fraud for one to sell what he does not own, even though he sell through honest mistake; and the purchaser is entitled to re- lief and complete indemnification.^ A mistake is as good a ground for relief as fraud.- The law holds the vendor bound tain this action and recover it back." De G. & J. 316; Bower v. Fenn, 90 Brand v. United States, 5 Ct. of Pa. St. 362. Claims, 312; Bank Cases, 10 id. 519; 2 Daniel v. Mitchel, 1 Story, 190; United States v. State Bank, 96 U. S. Paddock v. Kitredge, 31 Vt. 383 ; 30. In a sale by the government, of Smith v. Richards, 13 Pet. 38; Tor- goods captured in war, there is an rence v. Bolton, L. R. 14 Eq. Cas. implied warranty of title to the pur- 12i; Reese River S. M. Co. i'. Smith, chaser. Port r. United States (Court L. R 4 H. L. Cas. 80; Peck v. of Claims), 19 Law Reporter, 12. See Guerny, L. R, 79, 113; Redgrave v. foot-note in 2 Kent, p. 632. Hurd, 20 Ch. Div. 12, 13; Pljelps v. 1 Hart V. Swaine, Law Rep, 7 Ch. White, 7 L. R. Irish Eq. 160; Mathias Div. 42; Rawlins v. Nickham, 3 u Yetts, 46 L. T. (N. S.) 497. 38 501 EIGHTS OF PUECHASEES. [§ 873. to know that he has that which he sells;' and the purchaser ma\' rightfully rel}^ upon his representations.^ And a mis- representation in a judicial sale, misleading the purchaser, en- titles him to relief as fully as if made in a private sale.' " The juridical influence of error is united with the juridical facts of a case, ex facto oritiu^ jus^ or with the grounds of the rise and fall of the legal relations. Error may modify excep- tionally the regular consequences of judicial facts. Where there is no contract for want of an aggregatio mentium, the conclusion is clear. Where error does not affect the legal relations there is restitutio in integrum. The idea of the law is to give relief where no fault- exists ; where it is difficult or impossible to avoid an error of law relief is given." * Kesponsibilitv cannot be escaped on the argument that the other contracting party had notice of the nullity of the title when the mutual stipulations were entered into. If one had notice, both had; for the selling contractor was bound to know that he legally owned that which he professed to sell.^ It was said of vendors: "The defendants undertook to sell sometJiing when really they had nothing to sell. The thing 1 Allen V. Hammond, 11 Pet. 73; chaser paid the price and took pos- Crarnett v. Macon, 2 Brock. 285 ; session, but was afterwards evicted Cato V. Thompson, 47 L. T. (N. S.) of a portion at the suit of another. 491, It was held that notwithstanding the - Boyce v. Grundy, 3 Pet. 218; purchase-money received at the judi- Mead v. Bunn, 32 N. Y. 275; Brown cial sale had been partially distrib- V. Rice's Adm'r, 27 Gratt. 474; Park- uted, the purchaser was entitled to ham V. Randolph, 5 How. (Miss.) compensation, because he had not 451; Reynell v. Sprye, 1 De G., M. & got what the court had assumed to G. 710; Smith v. Reese River S. & sell. To the same effect: Strode v. M. Co., L. R. 2 Eq. 264. Patton, 1 Brock. 228; Ingersoll v. 3 Cooper V. Cooper, 4 Irish Eq. R. Mongam, 84 N. Y. 622; Smith v. (N. S.) 75; Lawrence v. Cornell, 4 Wells, 69 id. 601; Shirley's Adm'r John. Ch. 352 ; Preston v. Frye, 38 v. Jones, 6 B. Mon. 275. The case of Md. 222 ; Norton v. Moyers, 25 Ga. The Monte Allegre, 9 Wheat. 616, in 89; City of Charleston v. Blohme, 15 which caveat emptor was invoked, S. C. 124. {See State v. Gaillard, 2 was not a sale by the United States Bay, 11; Means v. Brickell, 2 Hill, as oicners of property adjudicated 657 ; Adams v. Kibler, 7 S. C. 58 ; to them. Mitchell V. Pinckney, 13 id. 202.) ^Snell v. Insurance Co.. 98 U. S. In Cooper v. Cooper, property sold 85: Merchants' Bank of Baltimore r. under a decree was represented as Campbell, 75 Va. 455. within certain bounds and contain- 5 Allen v. Hammond, 11 Pet. 72; ing a specified quantity. The pur- Garnett v. Macon, 2 Brock. 185. ^,5 874, 875.] GENERAL LIABILITY OF SELLERS. 595 intended to be sold had no legal existence; and where that is the case, there can be no contract of sale." ^ " It was not selling an interest svlject to chance, for the defendant had no interest at all to which a chance could attach."^ § 874. NulUti/. — If the sale is merely apparent, not in the least degree real and actual, it is without any judicial exist- ence; and its legal non-existence may be urged by the true proprietor against the buyer as much as by the buyer against the seller.' "The obligation to do justice rests upon all per- sons, natural and artificial; and if a county obtain the money or property of others without authority, the law, independ- ent of any statute, will compel restitution or compensation." ^ The nuUit}' of a judgment precludes the application of ca- veat emptor, and renders caveat venditor the proper maxim; for " the vendee might resist an action for the purchase-money by showing that no contracts of sale could grow out of that ■which was in law a nullity.^ And it has been held frequently that money paid under a void judgment or sale may be re- covered back on the ground of a failure or want of consid- eration.^ § 875. Autlxoritij to sell. — It is the duty of the selling party to see to the sufficiency of the authority for selling.^ The purchaser, even at a tax sale, has the right to presume that the officer selling has authority to sell what he offers, and he may recover the price bidden and paid, if the officer had no authority or if the state bad no right to sell.^ 1 Gardner v. The Mayor, 26 Barb. v. Leet, 8 Paige, 337 ; Seaman v. at p. 427, and the authorities there Hicks, id. 655 ; Brown v. Frost, 10 cited ; 2 Kent, 468 ; 1 Story, Eq. Jur., id. 243. t5§ 142, 143. ^Nevvdigate v. Davy, 1 Ld. Rayra. !^ Hitchcock V. Giddings, 4 Price, 742; Chapman v. City of Brooklyn, 135,quoted in 26 Barb, (just cited), at 40 N. Y. 372 ; McGoren v. Avery, 37 p. 426. Mich. 121-2; Norton v. Rock Co., 13 » Bender r. Fromberger, 4DalI. 436. Wis. 611, 612-13; Hendersons. Over- 4 Marsh v. Fulton Co., 10 Wall, ton, 2 Yerg. 394; Sands t;. Lyndham, 676; United States v. Arredondo, 6 27 Gratt. 291, 304; Earl v. Bicksford, Pet 711 ; McKnight v. United States, 6 Allen, 549, 550. 98 U. S. 186. 'Norton v. Rock Co., 13 Wis. 5 Commissioners v. Watts, 10 611-13; McGoren u. Avery, 37 Mich. Watts, 392-3 ; Bramfield v. Dyer, 7 121 ; Gardner v. Mayor, 26 Barb. 423. Bush, 505, 508; Darwin v. Hatfield, §13 Wis. 611-13; 37 Mich. 121-2; 4 Sandf. Sup. Ct. 468; Shirley's cited in full on the previous point. Adm'r v. Jones, 6 B. Mon. 275 ; Post 596 RIGHTS OF PUKCHASEES. [§§ 876, 877. § 876. Stiimlation of warranty. — No particular form of words is legally prescribed for the stipulation of warranty.* The existence of that which is the object of the price !s al- ways warranted, without the necessity of express guaranty in the deed. Acceptance of the price by the seller, whether a private or sovereign vendor, is ratification of the warranty.^ § 877. Damages. — When any one, not an owner, has sold real estate as his own, and the purchaser has been evicted of the property, and made accountable for the rents from the date of his possession, it has been held that the rule of dam- ages is " the consideration or value of the land at the time of the sale as then agreed upon by the parties or as determined by the price paid, with interest for such time as the purchaser has been deprived of, or is accountable to the superior owner for the mesne profits, together with the costs in defense of the action by which the party was evicted." ^ iNewcomb v. Presbrey, 8 Met. 310; 2 Ct. of CI. 476; McKee v. 410; Van Rensselaer v. Kearney, 11 United States, 12 Ct. of CI. 537; 9 id. How. 333, 333, 335; Chitty on Contr. 187, 196. G43 (11th ed.). 3 gender v. Fromberger, 4 Dallas, 2 Brown u. United States, 6 Ct. of 436-444; 3 Greenleafs Ev., § 264 CI. 171; Veazie v. Williams, 8 How. and cases cited; 4 Kent's Com. *474, 157; Elwell v. Chamberlin, 31 N. Y. 475, and cases cited. 619; Churchill v. Palmer, 115 Mass. CHAPTER XXIL JUDGMENT. I. Default §§ 878-880 II. Judgment Nisi 881-880 III. Final Judgment 887-892 IV. Perfecting the Lien 893-904 V. Appeal 905-907 VI. Attachment Sale 908-914 VII. Distribution 915,916 VIII. Judgment for Defendant 917-920 I. Default. § 878. When taken. — After service, or after the entry of ap- pearance, the defendant may be defaulted if he does not plead within the given time. This is not different in attachment suits from what it is in ordinary actions so far as the personal cause is concerned. The court has jurisdiction over the de- fendant when he has been served, or when he has appeared whether served or not. And the conjunction of seizure and service (or seizure and appearance without service) gives juris- diction over the res. Both the personal and attachment suits being in the same proceeding, one answer will suffice to pre- vent judgment by default in both. When they are separate, the defendant of the main suit should plead in both ; but should he successfully defend in the personal suit, the other would fall to the ground with it whether there was any denial of the alleged grounds for attachment or not; for, manifestl}'', if there be no debt or cause of action, there can be no perfecting of a lien upon the property attached. § 879. Default should not be entered when the plaintiff has filed no petition or complaint but merely the affidavit.^ After the filing of both, and service and seizure, there can be no default till the expiration of ten days, or whatever time is 1 Jones V. Howard, 42 Ala. 488; Penn v. Edwards, id. 655; Woolkins v. Haid, 49 Mich. 299. 598 JUDGMENT. [§ 880. allowed for appearance in any state.^ After it has been en- tered the defendant has the privilege of setting it aside, on motion, within a prescribed time (usually three da3^s), and then filing his answer. He has the full time: even if the jury has been impaneled he may answer and deny the averments of the aflQdavit and prevent final judgment by default.^ If he neglect to answer, and the default be confirmed, the judgment is final. He could only have relief by obtaining an order, on proper showing, for the reopening of the case. § 880. In proceedings in rem with general notice, the de- fault is "against all persons" (since all have been tendered their opportunity to claim), and upon confirmation the judg- ment is final; for the res is in court, whoever may be the owner. In such proceedings with limited notice, only the notified ma}' be defaulted ; and if the limitation is to one (the owner of attached property for instance), he alone can be de- faulted. The usual formula in the former case is: " The delay allowed by law having expired and no claim or defense hav- ing been filed, it is hereby ordered that all persons having any right, title or interest in or to the property seized herein be pronounced in contumacy and default, and the libel adjudged and taken pro confessoP If any person or persons have ap- peared, the}^ are excepted from the order, and all others held in default. Such form would be inapplicable in an attach- ment suit, in which nothing is proceeded against but the in- terest of the debtor in the property attached. Default is necessarily confined to hini, and whatever ownership or inter- est others may have is not cut off or affected by the judg- ment. "When summons has been returned unserved and property has been attached and no notice by publication is made and no appearance is entered, a judgment by default is not immedi- ately allowable: not till notice. Who is in default? If neither cited or notified, the debtor is not in default for non-appear- ance. He cannot be in contumacy for not obeying a summons never served; not heeding an invitation never extended. 1 Default is not to be taken on the it be " appearance day." Martin v. second day of term in Texas, though Hartnett (Tex.), 24 S. W. 963. 2 Havens v. Gard, 131 Ind. 533. §§ 881, 882.] JUDGMENT NISI. 599 II. Judgment !N'isi. §881. Custom of London. — The custom of London allows judgment by default after verbal proclamation repeated on successive court days; the defendant, not responding to the oral call, may be defaulted. But that custom never allowed final judgment under such circumstances. The case was open for a year and a day within which the defendant might ap- pear, enter bail and plead. The creditor could not obtain attached propert}^ from the court for sale without giving secu- rity to protect the owning absentee, or presenting pledges to restore. Pledgors entered into recognizance to pay the owner so as to make good his wrongs in case the judgment should be set aside. And such of our own states as allow like default and sale without service or notification, still require that the plaintiff should give security so as to protect the de- fendant should he appear within a j^ear. At the expiration of the time the judgment is deemed final. Such practice, though seemingly amounting to the taking of one's property without due course of law, was in full exercise when the con- stitution of the United States was adopted. It may be plausi- bly and perhaps satisfactorily argued that the f ramers of that instrument did not design to inhibit such procedure. That was one of the ways in which law was then administered in courts of justice; and, ever since, it has been thus adminis- tered in some of the states in cases of foreign attachment; and, in one or two, even in domestic attachment. § 882. Practice in Pennsylvania.— In Pennsylvania, at- tached property of a debtor, who absconds or conceals himself to defraud creditors, is delivered to three trustees, appointed by the court, who notify, by publication, all debtors of the defendant and all holders of his property to pay or deliver to them; and all his creditors to present their claims. These trustees are really judicial assignees; the estate of the attach- ment defendant legally rests in them for the purpose of ad- ministration; they sue in behalf of the estate and for the use of the creditors in their own names; they summon and examine persons supposed to be indebted to the defendant; they issue warrants for the seizure of goods and chattels, books, papers, etc., and may cause stores, warehouses, boxes, etc., to be broken open when that is necessary to the execution of a 600 JUDGMENT. [§ 883. warrant. They take charge of the real property of the debtor when vested in them in like manner; sell and dispose of it as administrators; redeem mortgaged property when necessary; and finally adjust the several claims of the creditors after having accorded a hearing to those who have appeared, and then file their report in the office of the prothonotary. Ex- ceptions to the report may be filed for the consideration of the court. If none are filed, the trustees distribute the fund derived from the estate of the debtor among those who have established their claims b}'^ proof, without preference. There is preference given to the first attacher when the process is under the statutes governing foreign attachment, which is quite different in this state from domestic. The method above described is not exclusive. In Delaware, domestic attachment has many of the features which distinguish it in Pennsylvania. § 883. In New Jersey. — In Xew Jersey, the proceeding is similar to that of the two states above mentioned. The court appoints an auditor to examine all claims, adjust and report upon them. His powers much resemble those of the trustees appointed in Pennsylvania. The auditors issue citations, war- rants, etc.. ; examine witnesses and interrogate persons sup- posed to be cognizant of the affairs of the defendant; investi- gate supposed fraudulent transactions; cause the seizure of unsurrendered property, and effect it by breaking into stores, warehouses, boxes, etc., when necessary; bring suits, under certain restrictions; sell the property of the defendant, in- cluding land ; and distribute the proceeds among the creditors in dividends proportionate to their established demands. If the sale is not by the auditor under the attachment, the pur- chaser's title is subject to liens created between the attach- ment and the judgment. In other words, attached land, sold on execution of a personal judgment against a defendant who has apjieared, does not bear lien from the date of the attach- ment but from the entry of the judgment. Aliter if the sale is by an auditor under the attachment.^ The judgment nisi does not preclude the absent defendant from entering within a year and suing those who have re- ceived dividends, as creditors under the award of the auditors, iBlatchford v. Conover, 40 N. J. ruling Conover v. Becket, 38 N. J. Bj. 205 (Parker, J., dissenting), over- Eq. 8S4. § 884.1 JUDGMENT NISI. 601 for restoration. His action will lie if the attachment was un- authorized by law, or if the grounds laid did not bring the case under the statute, or if the cause of action was false — that is, if the alleged debt was not due and owing; and he may recover as damages the amount received by the attach- ment plaintiffs and such costs and expenses as have been paid out of the proceeds of his property.^ The report of the auditor is not in itself conclusive; it re- quires confirmation by judgment; and the court, because of mistakes of law% may refuse to enter judgment, and may refer the matter back to him.- There is not confirmation in the sense that makes the award final, as in ordinary confirmation of default. § 884. In some other states. — The practice in Virginia and Maryland has been similar to that of the states above men- tioned with respect to the judgment nisi, though now modified in some respects. Judgment nisi in foreign attachment, under which the at- taching creditor sells the res without final decree against it, was guarded under a former statute by the requirement of a bond from the plaintiff to restore the proceeds upon the dis- proval of the debt within the usual delay. The bond might be to " perform future orders," etc. ; ' but in Maryland, under this practice, it was held that securit}^ to the non-resident de- fendant was not necessary when a year and a day had already elapsed since the issue of the attachment;* and, when that period had not transpired, motion for judgment of condemna- tion was there allowed prior to filing a bond to restore as re- quired by the act of 1715.^ A judgment of condemnation on an attachment and possession delivered under a liberate vests the legal title. ^ Though the legal delay of six months, re- quired by the statute, had not elapsed after seizure and before judgment, it was held in Tennessee that title was conveyed by the sale of real estate pursuant to the judgment against a 1 Schenck v. Griffin, 38 N. J. L. 462. < Wallace v. Forest, 2 Har. & M. 2 Berry v. Callet, 6 N. J. L. 179. (Md.) 261. SBrien v. Pitman, 12 Leigh (Va.), * Dawson v, Contee, 22 Md. 27. 379; Watts v. Robertson, 4 H. & M. 6 piater v. Hepburn, 3 Har. & M. 442. 434. 602 JUDGMENT. [§§ 885, 886. non-resident, notwithstanding the irregularity and reversibil- ity of such judgment.^ § 885. In Mississippi, under the provision of the code of 1871, section 1479, the attaching creditor could not sell the attached property of the absent and non-appearing debtor unless he gave a bond to restore in case the latter should ap- pear within "a year and a day " and disprove the debt. Any sale there, without such security to protect the debtor, was not voidable merely' but absolutely void.^ By the Tennessee code, sections 3527, 3528, a judgment against an attachment defendant, not a resident, not served and not appearing, must include what is called a "stay order," to protect him;^ and such judgment, without this essential, is absolutely void if there has been ^ no publication notice.* The reason for the requirement of such stay order is that the judgment is not final until matured by prescription. And it cannot be matured if jurisdictionless. By the Virginia code of 1873 (ch. 148, § 24), bond is required of the attaching creditor before he can sell to secure the non- resident debtor who has not been served and has not appeared.-^ And it is there held that a judgment against a non-appearer can have no effect as a personal decree in another state.^ No judgment lacking finality is recognizable beyond the state jurisdiction in which it was rendered. § 886. The judgment is not final, in Wisconsin, Minnesota and Nebraska, when the debtor has been neither served nor actu- ally notified (though there has been publication notice), until the expiration of a legal delay within which he may appear and set aside the judgment upon proper showing.' In Iowa there is a like provision;^ and in other states, some of which 1 Porter v. Partee, 7 Humph. 168. sin, within three, etc. See Berry v. 2 Hiller V. Lamkin, 54 Miss. 14. Nelson, 4 Wis. 373; Berry u. Doty, 5 3 MuUoy V. White, 3 Tenn. Ch. 9. id. 605. 4 Railroad v. Todd, 11 Heisk. 549. 8 Bond v. Epley, 48 la. 606, citing 5 Anderson v, Johnson, 33 Gratt. section 2877 of the code, providing 558. that such debtor might appear within 6 Fisher v. Marsh, 26 Gratt. 765. ten years after the rendition of the ■Savage v. Aiken, 21 Neb. 605. judgment, give security for costs In Nebraska, the debtor may thus and defend the suit, appear within five years ; in Wiscon- §§ 887, SSS.] FINAL JUDGMENT. 603 have been already particularized. la Arkansas the debtor may redeem his property sold under attachment within twelve months.^ III. Final Judgment. § 887. Ees judicata. — To render a judgment against a thing or a person conclusive, so as to prevent collateral attack, it is essential that there should be notice. In Hassall v. Wilcox,^ a proceeding to enforce a statutory lien against a railroad was brought under review. The court said: ""We do not think that the proceeding in the state court can be sustained as one w rem. It is essential to such a proceeding that there should at least be constructive notice, by some form of publi- cation or advertisement, to advise claimants to appear and maintain their rights, before a judgment in such a proceeding can operate even as p?'ima facie evidence." The court cited Windsor v. McVeigh,^ and held the decree open to collateral attack for want of notice. These cases are later than Cooper V. Keynolds,* which sustained prior rulings that seizure was notice "served on the thing itself," and sufficient to support jurisdiction. . § 888. In Guaranty Trust Co. v. Green Cove Kailroad ^ the court approvingly quotes the following from Galpin v. Page: ® "Every principle of justice exacts a strict and literal compli- ance with the statutory provisions;" and the court (in the Guaranty Trust Co. case) adds: "Later cases to the same effect are Earle v. McYeigh, 91 U. S. 503; Settlemier v. Sulli- van, 97 id. 4J:4; Cheely v. Cla3'ton, 110 id. 701; Applegate v. Lexington, etc. Mining Co., 117 id. 225; and there is scarcely a state in the Union in which the same principle has not been announced and re-affirmed." Though this case and those cited in the quotation from it were not against property, they serve to show the essentiality of statutory notice to render judgments conclusive. In Has- sall V. Wilcox, supra., notice was held essential in a proceed- ing against property when there was no provision of statute 1 Beard v. Wilson, 52 Ark. 290. 3 93 u. S. 274, 278-9. See Ward v. Carlton, 26 id. 862; MO Wall. 308. Holliday v. Cohen, 34 id. 713. s 139 u. S. 145-8. 2 130 U. S. 493. 6 18 Wall. 368-9. COi JUDGMENT. [§§ 8S9, 890. requiring it. Almost all the decisions contra to this, rendered since the 10th of Wallace, follow the Cooper case, and hold that mere attaching gives power to decide (even though the statute expressly require notice), so that the judgment cannot be attacked collaterally b}^ the defendant. The supreme court of Texas ^ has recently departed from a line of decisions avowedly to follow the Cooper case and Densmore v. Mat- thews.- § 889, Judgment for plaintiff after issue joined is comjjiete as a personal one, and may be executed against an}"- property of the defendant not exempt bylaw; and therefore there is no need to enlarge upon it in a work on attachment. It is like other personal judgments.^ § 890. Order of judgment — The general practice is to try the attachment upon traverse before the trial of the principal cause; but if the order is reversed, and there is judgment rendered for the plaintiff on the debt demand, the ancillary suit may be heard afterwards — the officer meanwhile retain- ing the custody of the resJ^ But if the judgment is for the defendant on the debt demand when that is tried first, he is entitled to have his attached property released without further inquir3^^ When the debt is not due, there should be an order for stay of execution till maturit}'' before the rendi- tion of a judgment on the attachment process;^ or there should be no decree till the debt becomes due.'^ The judgment necessarily follows the pleadings and the issue joined. A defendant may, at the same time, traverse the affidavit and plead to the petition. The two defenses are perfectly consistent: the first going to the writ and the second to the declaration.^ The two suits ma}"- not be against pre- cisely the same defendants; for the principal, personal one may be against a firm, and the ancillary action may be against 1 Barelli v. Wagner (Tex. Civ. Lutterloh v. Mcllhenny, 74 Tex. 73 : App.), 27 S. W. 16. Marks v. Abramson, 53 id. 264. '•i 109 U. S. 216. 4 Main v. Bell, 38 Wis. 544. 3 An attachment lien should not ^ Cramer v. White, 29 la. 336. So be enforced against the defendant's also if it is a nonsuit. Bates v. property under a judgment rendered Jenkins, 1 111. 25. on a claim or cause of action which ^ Berry v. Anderson, 3 Miss. 649 was not the basis of the attachment. "^ Ware v. Todd, 1 Ala. 199. ^ Parker v. Brady, 56 Ga. 372. §§ S91, S92.J FINAL JUDGMENT. COo a member of it; and, though no lien could thus be acqu^red upon the property of the firm, that would bo no reason for dismissing the attachment.^ A plaintiff who has sued in as- sumpsit may afterwards sue in attachment on the same de- mand. The two remedies are not inconsistent.^ There may be judgment against the attached assets of a partnership, after a member of the firm has been discharged from all personal liability for the partnership debt. Such member has no separate interest in the assets till the firm's debts have been paid.^ Though a creditor discharged a part- ner from all claim in one state, he afterwards proceeded by attachment in another, against the firm's property, and recov- ered the whole debt.^ § 891. Af/ainstmore than one (Icfendant. — When a creditor had instituted an attachment suit ao-ainst three alleged debt- ors, had obtained personal judgment against one of them and a judgment against the attached property belonging to all, and was attempting to enforce the personal decree against the two whom it did not affect, it was held that neither of the judgments was evidence against them of the amount claimed to be due. The first was held to be i7i personam; the second, in rem!' The latter is no evidence of debt.® Thouo-h a iudo-- ment vacating attachment is not a decision on the merits of the personal suit when the defendant is in court,^ it would end such a proceeding wholly in rem. When attachment has been sued out in a suit against two persons, it may be sustained against one and vacated as to the other.^ A judgment against one of two partners on a debt of the partnership is held good, if all the assets of the firm have devolved on him — the other member having absconded.^ § 892. Confined to the res. — When there is judgment with- out service on the debtor and without his a]>pearance — after publication — and the property on which it operates proves 1 Buckingham v. Svvezy, 61 How. 5 Convvell v. Thompson, 50 111. 329. Pr. 266. e Manchester v. McKee, 9 111. 511; 2Swartz V. Lawrence, 12 Phila. Jackson's Appeal, 2 Grant (Pa.), 407; 181 (Pa. Act of March 17, 1869). White v. Floyd, Spear's Eq. (S. C.) 3 Murray V. Muinford, 6 Cow. 441; 311. Canfield v. Hard, 6 Ct. ISO; Rice v. '^Stapleton v. Orr. 48 Kan. 170. McMartin, 39 id. 573. 8 Allen v. Clayton, 3 McCrary, 517. * Rice V. McMartin, 39 Ct. 573. STlioinas v. Brown, 67 Mil. 512. 606 JUDGMENT. [^ S93. insufficient to satisfy the debt upon which judgment is given, the unpaid balance may be made the cause of action in an- other suit; for it is as though no judgment whatever had been rendered respecting it. To such second suit the debtor may plead anything that he could have set up had he appeared in the first, but he cannot set up the attachment judgment as a bar to the suit for the unsatisfied balance.^ It is not error to ren- der judgment to the full amount of the debt alleged in the petition and affidavit (though it is inoperative so far as it ex- ceeds the value of the res), for the court cannot know the precise value of it at the time the decree is rendered; but it has been held that if the judgment exceeds the amount claimed and set forth in the notice, it is fatally erroneous in a suit bearing only on property.^ The judgment, where valid, binds the res only, though personal in form.' "When the plaintiff has been nonsuited and the lien dis- lodged, it is held that it is not restored by an order setting the nonsuit aside.* ITor when he has dismissed voluntarily, and then has had his case reinstated on motion;^ but if the reinstatement of the case, after voluntary dismissal, follows soon after the vacation of the order to dismiss, it is held in Missouri that the lien is not lost.** TV. Perfecting the Lien. § 893. Hoiv the lien is ailjudcjed. — Judgment in attachment suits is usually attended by the addition: "With privilege on the property attached," and not necessarily any further de- scription of the property.^ This, or equivalent words, is a judicial recognition of the attachment lien ; a perfection of the 1 Bliss V. Heasty, 61 111. 338. 6 Jaffray v. Claflin (IMo.), 24 S. W. '-'Forsyth v. Warren, 62 111. 68; 761. Hobson V. Emporium Co., 42 id. ^ Gerdes v Sears, 13 Oreg. 358. 306; Hichins v. Lyon, 35 id. 150; The words in a verdict "said Rowley v. Berrian, 12 id. 202. amount being secured by an attach- 3 Parsons v. Paine, 26 Ark. 124; ment lien on land," authorized judg- Banta v. Wood, 32 la. 469; Doolittle ment with privilege. Merrielles v. V. Shelton, 1 Greene (la.), 273; Bates Bank (Tex. App.), 24 S. W. 24. It V. Delavan, 5 Paige, 299 ; White v. has been held in Texas, however, Floyd, Spear's Eq. (S. C.) 351. that the verdict need not mention 4 Brown %i Harris, 2 la. 505. the lien. Pitkins v. Johnson (Tex.), 5 Murphy v. Crew, 38 Ga. 139. 2 S. W. 459. § S9J:.] PEKFECTING THE LIEN. 607 previously incipient right. It is a judgment against the prop- erty; a judicial finding that it is an indebted thing, and a virtual condemnation of it to pay its owner's debt. Whether such decree is made by the insertion of the clause above quoted or its equivalent, or is made by implication only in the persona] judgment, or is rendered formally in an ancil- lary proceeding conducted separately from the principal, the effect is the same. Implication is recognized in some of the states and not in others; but, where it is recognized, the lien IS perfected as well as if the privilege were expressly decreed in the judgment.' The jurj' may render a general verdict.- The implication does not exist if the attachment has been terminated during the proceedings, or if there is anything in the final decree showing that the recognition of privilege on the property is not designed;^ or if the judgment is by con- sent, which is held to be a waiver of the attachment lien.* §894. Bule in Missoiwi.— It was held, however, in Mis- souri that if a general judgment is rendered after attaching and publishing, it is not void as to the excess above the value of the res, but is valid till reversed; that it will authorize a special execution against the property attached and will bind no other property of the defendant; and that the form of the judgment may be corrected by an entry nunc jjro tunc? There should be a recognition of the privilege; and that would be effected if special execution on the property attached be awarded in the decree.^ It is also held in Missouri that if there has been a general appearance of the defendant in the case, the judgment should be general — not special against the property attached.'' It is 1 Anderson v. Goflf. 72 Cal. 65 ; Sale < Gilbert v. Gilbert, 33 Mo. App. r. French, 61 Miss. 170; Betancourt 259. V. Eberlin, 71 Ala. 461, 467 : Coleman 5 Massey v. Scott, 49 Mo. 278. r. Waters, 13 W. Va. 278; Young u. 6 Johnson v. Holley, 27 Mo. 594. Campbell, 5 Gilman, 80; Waynant See Han na v. Davis, 112 id. 599. V. Dodson, 12 la. 22. And so for- 'Maupin v. Va. Lead Mining Co., merly in Texas. Cook v. Love, 33 78 Mo. 24; Borum r. Reed, 73 id. Tex. 487; Wallace v. Bogel, 66 id. 461; Philips r. Stewart, 69 id. 149; 572. But the rule was changed by Huxley v. Harrold, 62 id. 516; Jones Revised Statutes, article 180. v. Hart, 60 id. 351. See Kenrick v. ^Shahan v. Tallman, 39 Kan. 185. Hutf, 71 id. 570, in which an at- 3 Wasson v. Cone, 86 111. 46; Love tached fund was lost by the insolv- V. Voorhies, 13 La. Ann. 549. ency of the officer and his sureties. G08 JUDGMENT. [§ 895. held there that under such judgment the attached property need not necessarily be sold ; that if there is other property sufficient to satisfy the execution, the defendant may surrender it and retain the attached property if he chooses to do so.^ It is true, not only in that state but in every other, that if the defendant has appeared, the personal judgment against him is a general one, which ma}' be executed against any property of his, and that he may point out what he prefers to have exe- cuted if the plaintiff does not insist upon having his lien vin- dicated against the property attached. The satisfaction of the judgment in any way would relieve the attached property of the lien. But it is not true that an attachment judgment bears upon all the defendant's property alike, because of his personal appearance in the case. The recognition of the at- taching creditor's privilege upon the propertj?- attached is seen to be all-important when there are rival attachers, and several judgments against the defendant, as the attacher who holds the oldest lien, matured by judgment, has priority over his competitors in executing the particular property on which his lien rests. It is as important a privilege to him as the right to foreclose a mortgage on hypothecated property is to the raortgaoree. § 895. Personal judgment sliould he general. — Doubtless the personal judgment against the defendant who has ap- peared, or who has been served with summons, should be gen- eral in Missouri and in ever}' state, so as to be operative on any property of his; but it is also undoubtedly true that the hypothetical lien created on the thing attached should be recognized, expressly or impliedly, in the judgment, and thus converted to a specific lien as sacred as a mortgage, so that the judgment creditor can make his money out of the execu- tion and sale of that thing to the exclusion of other creditors. Should such lien-bearing property prove insufficient to satisfy the judgment, other property may be executed under the per- sonal judgment; and, when that becomes necessary, the de- fendant may point out property to the sheriff as in any ordi- dary suit. Or the judgment creditor may voluntarily abandon his lien and make his money out of any property. iKritzer v. Smith, 21 Mo. 296; Jones v. Hart, 60 id. 351. PERFECTING THE LIEN. G09 § 896. Where there is but one attachment suit against the defendant, and judgment has been rendered against him after service or general appearance, it would work no w^rong to the plaintiff should other propert}"" than that attached be pointed out and the judgment satisfied out of the proceeds of the sale; but, until it has been thus satisfied, the lien upon the attached property remains inviolate. When satisfied, the lien disappears just as a mortgage or any specific lien whatever would be removed by payment of the debt which the lien ex- isted to secure. Because the appearance of the defendant makes him amen- able to the rendition of a personal judgment against him, it does not follow that there can be oyily a personal judgment. If the attaching were only to "bring him into court by his property," to "compel appearance," etc., and were without any other significance, it would logically follow that personal appearance would dissolve it, so that no lien could be matured by judgment; but attaching is not thus confined in its func- tions now, as it is understood in most of the states. § 897. Effect on the l)ond. — When the decree is neither ex- pressly nor impliedly confirmatory of the attachment lien, it can have no reference to, or bearing upon, the forthcoming bond, if one has been executed by the defendant; and the money due by such judgment cannot be made by a suit on that bond. For the duty assumed by the obligors is to restore the attached property should the attachment be sustained by the judgment. Such bond does not dissolve attachment,^ but a judgment for the plaintiff which denies him the lien does dissolve the attachment as effectually as if the judgment were for the defendant. The forthcoming bond is thus canceled just as unbonded attached property is thus released.- § 89S. When the lien hccomes perfected.— The importance of the judicial recognition of the privilege is seen from the fact that the lien can only be perfected by the judgment, iDunn V. Crocker, 23 Ind. 324; 10 Pet. 400; Kirk v. Morris, 40 Ala. Gass V. Williams, 46 id. 2o3; Jager 225; Woolfolk v. Ingram, 53 id. 11. V. Stalling, 30 id. 341 ; Bell v. West- - St-ate v. Manly, 15 Ind. 8 ; Foster em, etc. Co., 3 Met. (Ky.) 559; Hard- v. Dryfus, 16 id. 158; Moore v. Jack- castle V. Hickman, 26 Mo. 475; Jones son, 35 id. 360; McCoUem v. White, V. Jones, 38 id. 429 ; Hag-an v. Lucas, 23 id. 43 ; Perkins v. Bragg, 29 id. 507. 39 610 JUDGMENT- [§ 899. which has relation back to the levy.* Before maturity by judgment, the attaching creditor cannot assert his lien by an action to set aside an alleged fraudulent conve3'ance by the defendant.^ It is, from the moment of confirmation by judg- ment, fully entitled to the weight of a perfect lien from the date of its creation as a hj^pothetical lien.^ In a contest for priority with other perfect liens, such as mortgages, it now is entitled to £is much consideration.as if it had been convention- ally created. § 899. When lien is not recognised expressly or hy implica- tion. — On the other hand, should there be judgment rendered airainst the defendant without recognition of the lien and privilege upon the property attached; if the judgment should be such as to give the plaintiff no exclusive privilege to execute the attached property, but should leave such property equally subject to execution by any other judgment creditor, the lien would be lost, and would be rendered abortive ah initio* But in determining whether a judgment recognizes the attaching creditor's privilege on the property attachad and completes his lien, we must not confine ourselves to the mere verbiage of the decree, but to the meaning as understood in connection with the general practice of the state in which the judgment is rendered. Though purely personal in form, the decree may be operative against property in vindication of the attachment lien: as previously remarked, the judicial recognition of the lien may be understood. It is not deemed necessary to the maintenance of the lien, in several of the states, that its recog- nition should be written in the decree. It has been said that the attachment lien is merged in the judgment lien. There is, however this difference: it is spe- cific while the lien of the judgment, irrespective of it, is gen- eral. Priority secured by attachment is not lost by merger 1 Scarborough v. Malone, 67 Ala. - Tennant v. Battey, 18 Kan. 324. 570; Tennant 1?. Battey, 18 Kan. 324; ^Liebman u. Ashbacker, 36 Ohio Coffin V. Ray,.l Met. (Mass.) 212; St. 94: Riley v. Nance (Cal.), 31 P. McMechan v. Griffing, 3 Pick. 149; 1126; Robinson v. Thornton (Cal.), Tyrrell's Heirs v. Rountree, 7 Pet. 31 P. 9o6. 464; Goodwin v. Richardson, 11 ^United States Mortgage Co. v. Mass. 475; Gushing v. Hurd, 4 Pick. Henderson, 111 Ind. 24. 253 ; Van Loan v, Kline, 10 Johns. 129; Penney v. Little, 3 Scam. 305. §§ 9U0, 901.] PERFECTIXG THE LIEN. 611 into the judgment lien. So it is as important that the lien be legally maintained by the proceedings subsequent to its crea- tion as that the statute requirements creating it should be observed in the first place. § 900. In Iowa the judgment must be formally in 7'em when there has been publication but neither service nor appearance. Though all the prior proceedings may have been in conformity to statute, and the property attached is the same as that sold under the judgment, yet if the decree, following the pleadings, is personal in form, it may be collaterally attacked.^ Though all the previous proceedings in any case may be such as to enable the court to render a formal judgment against the at- tached property, yet if the decree is nominally against the defendant it is deemed absolutely void in that state, and a purchaser at the sale is liable to ejectment at the suit of the attachment debtor. § 901. In Indiana it is held necessar}^ that the attachment lien be recognized in the judgment; that this is as important as the observance of the statutory requisites for the creation of the liens ; that there must be a special judgment and special execution to enforce the lien.^ There are other states than 1 Smith V. Griffin, 59 la. 409, in exposition of section 2881 of the code, providing that in a proceeding by attachment, when the defendant has not been served with process, the judgment should be in rem only and not in personam. Griffin had sued Smith, attached land, notified him by publication, obtained judgment, and had become the purchaser at sale. Smith sued to recover the property, and the court held the judgment absolutely void because of its form, adding: " The court might have rendered a judgment in rem but did not do so." Previous de- cisions are of like import : Wilkie v. Jones, Morris, 97; Doolittle v, Shel- ton, 1 G. Greene, 272; Johnson v. Dodge, 19 la. 107; Hakes v. Shupe, 27 id. 465; Lutz v. Kelley, 47 id. 307. 2 Smith V. Scott, 86 Ind. 346; United States Mortgage Co. v. Hen- derson, 111 id. 24; Wright V. Manns, 111 id. 422; Thomas v. John- son (Ind.), 36 N. E. 893; States. Mil- ler, 63 Ind. 475 ; Gass v. Williams, 46 id. 253; The Excelsior, etc. Co. v. Lukens, 38 id. 438; Lowry v. How- ard, 35 id. 170; Moore v. Jack- son, id. 360; Perkins v. Bragg, 29 id. 507; McCollem v. White, 23 id. 43; Foster v. Dryfus, 15 id, 158; State V. Manly, 16 id. 8; Willets v. Ridg- way, 9 id. 367. Held in Lowry v. McGee, 75 id. 508, that no lien cre- ated by the issuing of an attachment under the statute of Indiana on the subject can exist or have any force after judgment has been rendered in a cause in aid of which it has been issued, " unless there is a spe- cial judgment or order of sale of the property attached and a special exe- cution." 2 R. S. 1876, p. Ill, g 188. 612 JUDGMENT. , [§ 902. those specified which hold the same doctrine; but the practice in several is to treat the judgment as following the previous proceedings, which, hQ\no^ formally against a personal defend- ant (though ■really against his property when he has not ap- peared nor been served, but has only been notified by publica- tion), may be consummated b}' a judgment personal in form. When, however, there has been judgment rendered formally against the defendant, with privilege upon the property at- tached, the issuing of a general execution instead of an order for the sale of the attached property is not a waiver of the attachment lien nor of the priority acquired b}'- attaching.* There would be a waiver, however, should property that had not been primariW attached (but levied upon under the execu- tion for the first time) be seized and sold to the satisfaction of the judgment. Like any other lien, — like a mortgage, pledge or pawn, — it would die with the debt which had called it into existence.- § 902. Form. — There is nothing sacramental in the form of the judgment recognizing the privilege upon attached prop- erty. Total omission of any mention of such privilege is not necessarily a defeat of the lien and a dissolution of the attach- ment. As above mentioned, it is not deemed essential to the maintenance of the lien, in several of the states, that it be formally recognized.^ The omission of formal recognition, in states where the law does render express judgment against property essential to the maintenance of the lien; or the ex- press denial of privilege in the judgment, in the other states, would be fatal to the attachment, and equivalent to its judicial dissolution.* In the case last cited, in which was reviewed a judgment for the defendant " subject to the plaintiff's rights on appeal," it is said that though there be no express provision for con- tinuing the lien of attachment after judgment in the defend- 1 liebman v. Ashbacker, 36 Ohio so held in Texas. Wallace v. Bogel, St. 94. 66 Tex. 572. If the attachment is 2 Parsons v. Sprague, 30 Hun, 19. sustained and the attached property 3 State V. Eddy, 10 Mont. 311; executed, sureties cannot complain Holliday v. Mansker, 44 Mo. App. that there was no special, express 465; Audenreid v. Hull, 45 id. 203; judgment against the property. Whitman Ag. Ass'n v. National, Thole v. Watson, 6 Mo. App. 591. etc. Ass'n, id. 90 ; Hutcheson v. * Meloy v. Orton, 42 Fed. 513. Powell, 93 Ala. 619. And formerly §§ 903-905.] APPEAL. G13 ant's favor, there is no want of power in the court to continue it during the pendenc}'^ of an appeal, if the application be made immediately, and bond given. The quoted phrase was considered as meaning that the plaintiff might be entitled to an order continuing his lien until decision in the supreme court. §903. Order of restoration. — When the final judgment is not meant to have any bearing on the attached property but to be entire)}'' personal, it ought not to be silent on the subject of the attachment: there should be an order of restoration in- cluded, if the property has not already been restored to the defendant upon dissolution of the attachment during the course of the proceedings.^ If, during the progress of the proceedings, the res has been judicially awarded to an inter- venor, the attachment suit against the defendant is ended, and only the personal one can be further prosecuted; and the whole case against him is terminated, if he has not been served with summons and has not appeared.'- If the final judgment is for the defendant, there is no need of an order quashing the attachment.^ § 904. Excess of amount. — A personal judgment exceeding in amount the value of attached property appraised and bonded * cannot be recovered in full against the surety whose obligation is limited to the appraisement. It was held in Ar- kansas" (under the proviso of her attachment statute that " no greater amount shall be recovered of the securities than the ap- praised value of the property seized by the officers ") that the court, on a verdict for a greater amount, should render judg- ment against the principal and sureties for the appraised value, and against the principal alone for the balance.^ It had been held erroneous to include the surety with the de- fendant in the attachment judgment.^ Y. Appeal. §905. Wlio may apiyeaJ. — The defendant can appeal only when judgment has been rendered against him on the mer- its;^ but the plaintiff may, when a plea in abatement has 1 Jackman v. Anderson, 33 Ark. ■» Calhoun v. Stout, 26 111. App. 414. 413. 2 Ireland v. Webber, 27 Ind. 256 ; 5 Holmes v. Cooper, 27 Ark. 239. -Jaffray v. Purtell, 66 Ga. 226. e Mizell v. McDonald, 25 Ark. 38. 3 Higgins r. Grace, 59 Md. 365. • Ranft r. Young, 21 Nev. 401; 614 JUDGMENT. [§§ 906, 907. been decided adversely to hira, in the attachment proceeding, though the judgment on the merits of the personal suit be in his favor.^ Were this right denied the plaintiff, he would, in such case, be denied the benefit of his attachment lien though the judgment in the ancillary suit might be reversible; and he would have nothing but an ordinary personal judg- ment. If the suit is against a non-resident by publication, dissolution is a final judgment, when he has not appealed: so the plaintiff may appeal. § 906. Upon the dissolution of an attachment in Montana, the plaintiff may appeal and yet go on in the trial court with the personal case when the defendant is a party in court, and recover judgment and issue execution; and he will not thus waive his attachment lien.- Should he succeed in the appeal, his lien may avail him in a contest with rival creditors; but should he make his money on execution, his judgment would be satisfied so that the lien would have no longer any basis of debt to stand upon. When all the proceeds of an attachment are required to satisfy the judgments of prior attachers, so that subsequent ones take nothing, the latter cannot recover damages on an appeal bond.^ § 907. Siq)€rsccleas.— On appeal by the plaintiff, without supersedeas, the sheriff is not bound to hold the attached prop- erty.* And if he does not appeal from a judgment against his attachment within the legal time, no further order is nec- essary to final dissolution.^ Ko appeal lies from an order de- clining to dissolve an attachment.^ The defendant's remedy is by appealing the case after final judgment against him on Loveland v. Mining Co., 76 Cal. 667; Ryan u. Maxey (Mont.), 35 P. 564; O'Connor v. Blake, 29 id. 315; 515; Eastman v. Clackamas Co., SS' Littlefield v. Davis, 62 N. H. 492; Fed. 24. See Maxey v. Speith, 8 York V. Sanborn, 47 id. 404 ; Brown Mont. 494. V. Harris, 2 G. Greene, 507 ; Har- 3 Thurman v. Blankenship, 79 Tex. row V. Lyon, 8 id. 157; Suydam 171, 179. V. Huggeford, 23 Pick. 470 ; Clap v. * Ryan Drug Co. v. Peacock, 40 Bell, 4 Mass. 100; Higgins v, Grace, Minn. 470. 59 Md. 374; Johnson v. Edson, 2 SMcCormick, etc. Co. t'. Jacobson, Aiken, 302; Anderson v. Land, 5 77 la. 582; Ryan v. Heenan, 76 id. Wash. 403. 589. iKnapp V. Jay, 9 Mo. App. 47; t-Marhall t'. Ravisies, 22 Fla. 586; Rancher v. McElhinney, 11 id. 434. Harrison v. Thurston, 11 id. 307. In 2 Martin v. Maxey (Mont.), 35 P. Alabama an order dissolving attach- § 908.] ATTACHMENT SALE. G15 the merits. Appeal from a circuit court from an order dis- solving attachment was held not authorized in Michigan.^ In Missouri, where a motion to dissolve is a statutory sub- stitute for a bill in equity, the appellate court is not limited to the finding of facts in the trial court.- Ordinarily, the finding will not be disturbed on appeal.^ In Utah, affidavits read on a motion to dissolve must be embodied in a bill of exceptions or they will not be noticed on appeal.'* A judgment plaintiff cannot bring an attachment suit to aid execution while the defendant's appeal, with supersedeas^ is pending.^ When the pendency of appeal is pleaded, there must also be an averment of the stay of proceedings. The levy of an attachment is void while the defendant's appeal, from an order appointing a receiver, is pending.^ VI. Attachment Sale. § 90S. Order of selaure .superfluous. — Judgment with priv- ilege upon the property attached and in court should not be followed b}^ a writ of Jieri facias; for there is nothing to be seized or levied upon:'^ — the res being already in court act- ually or constructively; that is, in the sheriff's hands or in those of a keeper, receiptor, or the defendant holding under a forthcoming bond, or whomsoever has the subordinate pos- session. That writ may be employed if the property has been taken out of the control of the court by means of a dissolu- tion bond; and also when the judgment is merely personal, giving no privilege upon the attached fund, debt or property, or giving it when the res is inadequate; but manifestly there can be no retaking by the sheriff for the plaintiff when he is already in possession under the'attachraent writ. The attach- ment having been made as a preliminary to execution, to con- serve the property for that very purpose, the writ of Jieri facias is inapplicable after judgment sustaining the attach- ment is not appealable. Stanton v. * Bowring v, Bowring, 4 Utah, 185. Heard (Ala.), 14 So. 359. » Johnson v. Williams, 82 Ky. 45. 1 Harney u. Pealer, 63 Mich. 572. 6 Stanton v. Heard (Ala.), 14 So. •■i Gilbert v. Gilbert, 33 Mo. App. 359. 259. 7 Wymau v. Eussell, 4 Biss. 307. sFeder v. Solomon, 26 Neb. 266. 616 JUDGMENT. [§§ 909, 910. ment, so far as such property is concerned; for the lev\' of an attachment and the levy of an execution operate equally.^ § 909. Order of sale sufficient — The proper writ is vendi- tioni exponas. The officer is commanded to expose to sale what he has already under seizure. If he has intrusted the attached propert}'^ to others, under bond or otherwise, in any legal way, he must first regain the actual custody; and then he must offer it to the public in market overt, under such writ.^ If the judgment is, in effect, ovX^ in rem; that is, if the de- fendant was not served and not in court, execution can be di- rected against only the property attached and held, whether it prove sufficient to satisfy the judgment or not, since such judgment is inoperative beyond the value of the res: hence, in such case, nothing remains to be done but expose to sale what has been attached. § 910. The writs of attachment and vend. ex. together con- stitute all that is embraced in the fi.fa. Together, they are as though a fi.fa. had been issued when the writ of attach- ment was issued, if that could then have been legally done. In other words, the writ is retroactive in its effect, relating back to the levy made in the incipency of the suit; and it is as effective against all levies subsequent to that time, and all liens since created, as anj fi.fa. is from the date of seizure thereunder. The lien hypothetically created by the attach- ment levy, having now been perfected by judgment, may be vindicated by the execution of the property attached, as though it had been, all along, from its incipiency, a complete lien.^ 1 Shorten v. Drake, B8 Ohio St. 76. v. Little, 3 id. 305 ; Welch v. Joy, 13 2 It must be the officer in charge: Pick. 477; Martin v. Dryden, 6 111. not an ex-sheriff who executed and 187; Gushing v. Hurd, 4 Pick. 253; returned the writ of attachment Sigourney v. Larned, 10 id. 72; Mc- when in office. Johnson v. Foran, Median i\ Griffing, 3 id. 149; War- 58 Md. 148. den v. Adams, 15 Mass. 233; Porter 3 Porter u. Pico, 55 Gal. 165; Tyr- v. Millett, 9 id. 101; Jackdon v. reVs Heirs v. Rountree, 7 Pet. 464; Chamberlin, 8 Wend. 620. It has Wallace v. McConnell, 13 id. 151 ; been held in Texas that the attach- Van Loan v. Kline, 10 Johns. 129; ment sale conveys the defendant's Goodwin v. Richardson, 11 Mass. interest acquired between levy and 475; Goffin v. Ray, 1 Met. 212; sale, as well as that which he had Pierson v. Robb, 3 Scam. 143 ; Penny when the levy was laid upon it. §§ 911, 912.] ATTACHMENT SALE. 617 A levy of attachment is no satisfaction of the debt; ^ it must have the hen perfected, and vindicated by sale, before it can equal an execution in effect.- § 911. Practice. — The general practice is to issue an execu- tion, notwithstanding the inapplicability of that part of the order commanding the sheriff to seize what has been already seized and is in possession of the court in the hands of that officer. But the superfluity does no harm. The writ is issued by the clerk or prothonotary, who should docket its date and the names of the parties, though that is not essential to the validity of the attachment lien.^ But the lien is held limited to the amount stated in the writ, though the judgment may be greater.* The service of the execution is like that of a summons.^ When attachment is levied after judgment, there should be prior notice to the defendant, but the writ need not be served on him, in Montana.^ §912. Defendant's iwoiyerty. — The execution, though al- ways directed against the attached property when it is to vindicate a judicially recognized attachment lien, can onlv have binding effect so far as the res really belongs to the de- fendant. In other words, only the defendant's interest has been validly attached, can have been validly condemned to pa}^ the debt, and can now be validly sold so as to convey a good, unimpeachable, indefeasible title to the purchaser.' Xo- body but the defendant has been summoned, or notihed by publication; the writ has had reference to no property but his; jurisdiction has been over only him and his; the suit has Willis V. Pounds (Tex. App.), 25 S. Hoag v. Howard, 53 id. 561 ; Pixley "W. 715. V. Huggins, 15 id. 131 ; Purdy v. Ir- ' McBride v, Faraiers' Bank, 28 win, 18 id. 350; Hunter v. Martin, Barb. 476; Cravens v. Wilson, 48 12 id. 377; Plant v. Smythe, 45 id. Tex. 324. 162; Wilcoxen v. Miller, 49 id. 195; - Yourt V. Hopkins, 24 III. 326. Ledyard v. Butler, 9 Paige, 132; Ells 3 McLaughlin v. Phillips, 10 Pa. v. Tousley, 1 id. 283; Arnold v. Pat Co. Ct. R. 382. rick, 6 id. 315; Lounsbury v. Pnrdy, ^Hubbellv. Kingman, 52 Ct. 17. 11 Barb. 494; Averill v. Loucks. 6 5 Mesker v. Frothingham, 1 Pa. id. 26; Thompson v. Baker, 74 Me. Dist. R. 120. 48 : Hurst r. Hurst, 2 Wash. C. C. 78 ; 6 Hoffman v. Imes (Mont.), 34 P. Finch v. Earl of Winchelsea, 1 P. 728; Mont. Code Civ. Proc, g 181. Williams, 278. 7De Cells v. Porter, 59 Cal. 464; 618 JUDGMENT. [§ 913. been limited to Lis interest as tlie res proceeded against; the decree cannot possibly divest the interests of those who have not been notified or impleaded; nothing but what belongs to the judgment debtor can be executed to pay his debt; and, if the property exposed to sale by the sheriff as that of the de- fendant is really such, and the court has had jurisdiction over it, and has exercised it without excess, and no fraud has viti- ated the proceedings, decree or sale, the purchaser buys as though purchasing of the defendant himself.^ §913. Defendant firm. — Partnership property is not only liable to be levied upon for a partnership debt but also for that of a member of the firm. In the latter case, sale of goods may be prevented that the interest of the indebted partner may be ascertained, which is his share of the surplus after all the liabilities of the firm have been extinguished. Should the creditor insist upon the sale of partnership goods to satisfy his execution against the indebted partner, he may be restrained by injunction. Resort may be had to a court of equity for the adjustment of the partnership affairs and the ascertain- ment of the judgment debtor's interest subject to execution; and another of the partners is competent to invoke the aid of such court for that purpose. Should the interest of the in- debted property not be thus ascertained before the execution sale, so that it would be sold subject to subsequent ascertain- ment, the purchaser would become a tenant in common with the remaining partner or partners.^ And the same rule ap- plies to joint owners and tenants in common.^ 1 Evans v. McGlasson, 18 la. 150 Orth V. Jennings, 8 Blackf. 420 Runyan v. McClellan, 24 Ind. 165 ham V. Caster, 12 id. 131; Washburn V. Bank of Bellows Falls, 19 Vt. 278; Bardwell v. Perry, id. 293; Burgess Pixleyu Huggins, 15 Cal. 183; Dodge v. Atkins, 3 Black, 337; Moore v. V. Walley, 22 id. 224; McDonald v. Sample, 3 Ala. 837 ; Shaver w. White, Badger, 23 id. 399; Blood v. Light, 6 Munf. 110; White v. Woodward. 38 id. 653. 8 B. Mon. 484; Hershfield v. Claflin, 2 Place V. Sweetzer, 16 Ohio, 143; 25 Kan. 166; People's Bank u. Shry- Nevvhall u Buckingham, 14 111. 405; ock, 48 Md. 427; Douglass v. Wins- White V. Jones, 38 id. 159, 166; Phil- low, 20 Me. 89; Tredwell v. Roscoe. lips V. Cook, 24 Wend. 389 ; Scrug- 3 Dev. 50 : Schatgill v. Bolton, 5 Mc- 3 James v. Stratton, 32 111. 202; dell v. Cook, 2 Hill, 47; Blevins v. Millville V. Brown, 15 Mass. 82; Reed Baker, 11 Iredell, 291. V. Howard, 2 Met. (Mass.) 36: Wad- §§ 914, 915.] DISTRIBUTION. 619 A fraudulent attachment and sale may be set aside by a bill directed against the parties to the suit, their agents, the offi- cers, etc.; and such bill is held not multifarious.^ § 914. Sale limited to sufficient quantity. — The sale of sev- eral attached lots or tracts should not be ordered in s^ross when one or two would be sufficient to satisfy the judgment.'^ Each offered for sale should be described so as to distincruish one from another.* But the selling of attached personalty in bulk has been held no ground for damages."* That must de- pend upon circumstances. If such method of sale result in injury to the complainant, why should he not be recompensed on proof of the damage? The advertisement of the sale must be such as to inform the public. If it is not misleading, its discernible mistakes will not prove fatal.^ Confirmation of the attachment sale by the court is essen- tial in many states, as in Arkansas.^ VII. DiSTKIBUTION. § 915. Conmirsns. — One of several attaching creditors, after each has, in a separate proceeding, obtained judgment against the common debtor, may sue all the others to have his right of priority adjudged contradictorily with them.^ However Cord, 478; Weaver v. Ashcroft, 50 Ala. 148. See Cartwright v. Bam- Tex. 428; Saunders v. Bartlett, 12 berger, 90 id. 405. Heisk. 316; Marston v. Dewberry, 21 2 starks v. Curd, 88 Ky. 164. La. Ann. 518; Choppin v. Wilson, 27 nicDonald t\ Bank, 74 Tex. 539. id. 444 ; United States v. Williams, ^ Jefferson Bank v. Eboi-n, 84 Ala. 4 McLean, 236; Gilmore v. N. Am. 529. Sand Co., Peters' C. C. 460; Buck- 5 Hewitt f. Durant, 78 Mich. 180. hurst V. Clinkard, 1 Shower, 173; ^Fj-eeman u. Watkins, 52 Ark. 446; Pope V. Haman, Comb. 217; Parker Bell v. Green, 38 id. 78; Greer v. V. Pistor, 3 Bos. & Pull. 288: John- Powell, 3 Met. (Ky.) 124; Freeman son V. Evans, 7 Mann. & Grang. 240; on Ex., J^ 304. Story on Part., §§ 261, 264 ; Gow on 7 Jn Ohio it may be by an original Part., § 206; Collyer on Part., § 822. petition in the nature of a creditor's Contra, Morrison v. Blodgett, 8 N. H. bill, making all parties defendants 238; Deal u Bogue, 20 Pa. St. 228, who claim liens on the fund attached; 233. and to this the other judgment cred- 1 Bamberger v. Voorhies (Ala.), 13 itors or professed lien-holders may So. 305; Gusdorf v. Ikelheimer, 75 file answers and cross-petitions, etc. Seibert t\ Switzer, 35 Ohio St. 662. 620 JUDGMENT. [§ 916. brought into contact with each other, under the varyhig prac- tice of the different states, the rival creditors must have the opportunity afforded of presenting their several judgments so as to have their respective liens marshaled according to rank. There must be a concursus of creditors, or something equiva- lent, so that all questions concerning their respective claims to priority over others may be contradictorily considered and finally determined.^ The principal question in such a concursus generally is that concerning the date of the attachment. Where the act of at- taching is the creation of the lien, as in most of the states, and where the first attacher has priority, as is almost uni- versally the case,- the precise time when the act was per- formed becomes very important. If the property attached is sufficient in value to pay only the first attacher, the date of seizing becomes all-important. § 916. Proceeds. — The contest among creditors frequently, and indeed usually, takes place after the proceeds of the at- tached property have been brought into court. If the cred- itor, who has caused execution to issue upon his judgment and sale to be made, is really outranked by another attachment creditor, or by the holder of a recorded, pre-existing, perfect lien, he will have to give way to the one having the higher privilege; and his judgment must look to the residue after the first lien has been satisfied. The question between rival claimants for the proceeds is settled by the judgment of dis- tribution. It is almost always after the proceeds are in court that the mortgagee appears to claim his prior right to pa}--- raent. The attachment is necessarily subject to and under 1 Lexington & Big Sandy R. R. 2 Allen v. Gilliland, 6 B. J. Lea, Co. V. Ford Place Glass Co., 84 Ind. 626; Moore v. Fedewa, 13 Neb. 379; 516; Davis v. Friedlander, 104 U. S. Wright v. Smith, 11 id. 341 ; Adler v. 570. No distribution under Colorado Roth, 2 McCrary, 445 (in which it Code, § 116. Baum v. Gosline, 15 was held that if there is an attach- FeJ. 220. A plaintiff in Texas prayed ment in a federal court and another the court to have the balance of the in a state court, the first made has pioceeds from an attachment sale the priority of lien); McBride v. (remaining after his judgment was Harn, 48 Iowa, 151 ; Crowninshield satisfied) applied to satisfy another v. Strobel, 2 Brev. 80; Robertson v. judgment of his against the same Forrest, id. 466; Bethune u. Gibson, defendant. He was denied. Parks id. 501 ; Williamson v. Bowie, 6 V. Young, 75 Tex. 278. Munf. 176. §§ 917, 918.] JUDGMENT FOR DEFENDANT. 021 the mortgage, since the interest of the attachment defendant is all that could be validly attached. If the defendant appears to object to the confirmation of sale, he waives defects in the publication notice:' so distri- bution may be legally made; but not if he has been fraudu- lentl}^ summoned and has kept out of court, as the proceedings would be void.2 For amendable defects in the attachment writ and bond, the execution cannot be fjuashed after judg- ment at the instance of one duly summoned or notified.' The distribution of funds should not precede the trial of a plea in abatement relating to them.^ YIII. Judgment fok Defendant. § 917. In personal action. — Final judgment for the defend- ant in the personal action dissolves the attachment, as a matter of course, though he may have previously failed in all his ef- forts to have it dissolved for causes appertaining to the ancil- lary proceeding. Such judgment enables him to prosecute his action for whatever injury he may have received by the abuse of the process, as well as does an order expressly dis- solvins: the attachment in the course of the suit. § 918. Restoration. — The judgment defendant is entitled to the release of his property immediately, unless there has been an appeal granted or writ of error sued out operating as a supersedeas. Judgment of restoration is entered in proceed- ings ^'7^ rem of general character, when the libelant is defeated in his attempt to get a judgment of condemnation; and, in such proceedings of a limited character, such as an attach- ment suit is, restoration is sometimes expressly ordered,^ though the usual entry is judgment for the defendant, leaving the restoration a matter of implication. There is really no neces- sit}^ that it should be expressed, since the personal judgment for the defendant is a dissolution of the attachment.^ And it iHelmer r. Rehm, 14 Neb. 219. ^Sannes n Ross, 105 Ind. 558; 2 Duringer v. Moschino, 93 Ind. 495. Higgins v. Grace, 59 Md. oG5 ; Love- 3 Miller v. Whitehead, 66 Ga. 283; land v. Alvord, 76 Cal. 562; Harrow Steers v. Morgan, id. 552. v. Lyon, 3 Greene (la.), 157; Brown < Boland v. Ross (Mo.), 25 S. W. 524. v. Harris, 2 id. 505 ; Dean v. Steph- 5 Camp V. Schuster, 51 Mo. App. enson, 61 Miss. 175. 403. G22 JUDGMENT. [§§ 919, 920. has been held that, though there has been judgment against him, the attachment will be dissolved if the sale fails and the plaintiff makes a second seizure, thus abandoning the first.' Attachment is not dissolved by the plaintiff's being nonsuited, if the nonsuit be set aside at the same term.^ When there is judgment for the defendant, he cannot be charged with costs — it would be unconstitutional.^ § 919. Judgment of restoration to a claimant does not affirm his title against any person afterwards suing for it, even though the question, in the case in which the judgment was rendered, turned upon that of the claimant's ownership.* § 920. Effect of deatli. — Attachment abates upon the death of the defendant.^ It abates till the decedent's adminis- trator be made a party .^ The attachment of land is dissolved by the death of the defendant.^ In Louisiana the suit con- tinues against the heirs on the death of the defendant. They must be separately cited, and judgment may be rendered against each according to his share of the estate; it cannot be in solido? 1 Croswell v. Tufts, 76 Me. 295. Contra: Rogers v. Burbridge (Tex. 2Hubbell V. Kingman, 53 Ct. 17. App.), 24 S. W. 300; Tex. R. S., arts. ^Bovve V. Reflector Co., 36 Hun, 179, 1248. See Graham u Boynton, 407. Nor for fees. Union Dist. Co. 35 Tex. 713. w. Pharmaceutical Co., 58 N. Y. 6 Lord u Allen, 34 la. 281 ; White Superior, 417. S'ee Adler u. Baltzer, v. Heavner, 7 W. Va. 324; Moore 54 id. 514. V. Thayer, 10 Barb. 258; Thatcher 4 Gushing u. Laird, 15 Blatchf. 219. v. Bancroft, 15 Abb. Pr. 243. See 5 Davenport v. Tilton, 10 Met. Dorn v. Blake, 46 III. App. 329. (Mass.) 320; Vaughn v. Sturtevant, ^Phillips v. Ash, 63 Ala. 414; Mc- 7 R. I. 372; Collins v. Duffy, 7 La. Clellan v. Lipscomb, 56 id. 255; Lips- Ann. 39; Harrison v. Renfro, 13 Mo. comb v. McClellan, 72 id. 151. 446; Sweringen v. Eberius, 7 Mo. ^La. Code of Practice, art. 724- 431; Kensley v. Morgan, 47 Gal. 633; Schwartz v. Claflin, 60 Fed. 676. Kennedy v. Ragnet, 1 Bay (S. C.), 1. CHAPTER XXIII. FINAL JUDGMENT AGAINST THE GARNISHEE. I. In General §§ 921-925 II. When Void or Voidable 926-931 III. Interest, when Chargeable 932-936 IV. Costs, Fees and Compensation 937-943 V. Garnishment in Execution 944-950 VI. Garnishee's Plea in Defense of Subsequent Suit by the Attachment Defendant 951-954 VII. What Judgment is a Bar to Subsequent Action . 955-963 VIII. Subsequent Suits by Garnishors and Others Against Garnishees 964-967 I. In General. §921. After judgment against the defendant. — Final judg- ment must be rendered against the defendant in an attach- ment suit before the garnishee can be ordered to pay into court or deliver property for execution.^ There cannot be joint judgment against both.- The judgment against the de- fendant must have been signed and made of record before the 1 Miller i\ Anderson, 19 Mo. App. 71 ; Withers v. Fuller, 30 Gratt. 547; Randolph v. Little, 62 Ala. 376; Lee V. Ryall, 68 id. 354; Case v. Moore, 21 id. 758; Bostwick v. Beach, 18 id. 80; Lowry v. Clements, 9 id. 422; Leigh V. Smith, 5 id. 583; Gaines v. Bierne, 3 id. 114; Toledo R. R. Co. V. Reynolds, 72 111. 487: Hinds v. Miller, 52 Miss. 485; Hoffman v. Simon, id. 302; Murdock v. Dan- iel, 58 id. 411; Roberts v. Barry, 46 id. 260; Metcalf v. Steele, id. 511; Kellogg V. Freeman, 50 id. 127; Er- win V. Heath, id. 795; Lingardt v. Deitz, 30 Ark. 224; Collins v. Friend, 21 La. Ann. 7; Rose v. Whaley, 14 id. 374 ; Proseus v. Mason, 12 La. 16 ; Caldwell v. Townsend, 5 Martin, N. S., 307; Clough v. Buck, 6 Neb. 343; Washburne v. New York, etc. Co., 41 Vt. 50; Rowlett v. Lane, 43 Tex. 274; Bushnell v. Allen, 48 Wis. 460; Moore v. Allen, 55 Ga. 67; Bryan v. Dean, 63 id. 317; House- mans V. Heilbron, 28 id. 186; Eman- uel r. Smith, 38 id. 602 ; Railroad v. Todd, 11 Heisk. 549; Langford v. Ottumwa Water Power Co., 53 la. 415; Whorley v. M. & C. R. Co., 72 Ala. 20; Walton v. Sharp, 11 Lea, 578; Mitchell v. Watson, 9 Fla. 160; Sun Ins. Co. v. Seeligson, 59 Tex. 3; Malloyt'. Burtis, 124 Pa. St. 161; Pierce v. Wade, 19 Bradw. 185; Mer- chant r. Rowland, 46 111. App. 458. 2 Fourth N. Bank v. Mayer, 89 Ga. 108. 621 FINAL JUDGMENT AGAINST GARNISHEE. [§ 922. auxiliary one can be rendered. The latter is subsidiary to the former,^ Both need not be entered at once; that is, the one against the garnishee may be at any time after the lirst.- Where the judgment is conditional, it must be so expressed.' Sufficient reason for judgment is the garnishee's admission, direct or indirect, that he owes the defendant uncondition- ally, or that he holds property of the defendant liable to execution; or the garnishee's fraudulent evasion of interroga- tories; or the proof aliunde of the fact of unconditional in- debtedness to defendant or of possession of property liable to execution upon the plaintiff's judgment. Where there is no judgment against the credit or property attached in the garnishee's hands, but merely a personal one against the defendant, there can be none against the garnishee. The order charging him is void ; for such merely personal judgment against the principal defendant is equivalent to the dismissal of the attachment proceedings.* It has been held, however, that attachment holds till set aside, and that there- fore no order or judgment sustaining it is necessary to the validity of garnishment proceedings.^ A personal judgment against the defendant, with the attachment not sustained either expressly w hy ivriMcation, forms no basis for a judg- ment against the garnishee in any state. When an attach- ment judgment is reversed on appeal, judgment against the garnishee falls with it.^ § 922. Ground of the judgment. — Eeasons for an order dis- charg^ing the garnishee are his untraversed denial of indebted- DO O ness to defendant or possession of defendant's property, his candid statement of facts of such a character as to show no legal liability,^ his right to the benefit of a doubt, and the fail- iToll V. Knight, 15 la. 870; Bean SGoode v. Holcombe, 37 Ala. 94; V. Barney, 10 id. 498 ; Stickley v. Bonner v. Martin, id. 83. Little, 29 111. 315; Case v. Moore, 21 ■» Emery v. Royal, 117 Ind. 299; Ala. 758; Wyman v. Stewart, 42 id. Wright v. Manns, 111 id. 422; Smith 163; Chambers v.Yarnell, 37 id. 400. v. Scott, 86 id. 346; Lowry v. Mc- 2 Noble V. Merrill, 48 Me. 140; Gee, 75 id. 508. Lockhart v. Johnson, 9 Ala. 223; 5 Kenosha Stove Co. v. Shedd, 82 Gi-aves v. Cooper, 8 id. 811; Weber la. 540. V. Carter, 1 Phila. 221 ; Slatter v. ^ Smith v. Railroad, 49 Mo. App. Tiernan, 6 La. Ann. 567; Sturges v. 54. Kendall, 2 id. 565. • 7 Hamilton v. Hill (Ala.), 29 A. 956. § 923.] IN GENERAL. 625 lire of the plaintiff to get judgment against the defendant. The judgment against the garnishee must state that against the principal defendant, and its amount.^ The admission of liability to the principal defendant, in the garnishee's answer, is sufficient to support judgment against the garnishee with- out other evidence,- § 923. Amount — The amount of the judgment against the garnishee cannot exceed the debt he owes or the value of the property he holds subject to execution for the defendant's debt.^ So far as concerns the property, its delivery to the sheriff when demanded is all that is required, so that there is no judgment for its value unless it should fail to be forth- coming when wanted. The garnishee is not liable to a mone}'' judgment without chance to surrender property held by him.* If he is in possession of more of defendant's property than is sufficient to satisf}^ the judgment, or owes him more, the sur- plus remains unaffected. If the judgment against the defendant is greater in amount than the sum specified in the writ of garnishment, the judg- ment against the garnishee must be in accordance with the writ if the evidence will support it to that amount; it cannot be made to exceed the sum stated in the writ.^ A stipulation that if the court should find for the plaintiff the judgment shall be for a stated sum is no basis for determining the gar- nishee's indebtedness." There is no breach of the condition to pay in case of con- demnation, after bonding, so far as the debt or property sub- jected to garnishment shall be found liable, until there has 1 Brake v. Curd, etc. Co. (Ala.), 14 * Hawthorn v. Unthank, 52 la. o07. So. 773; Whorley v. Railroad Co., 73 5 Hoffman v. Simon, 53 Miss. 302. Ala. 20; Chambers v. Yarnell, 37 id. This was garnishment in execution, 400; Faulks v. Heard, 31 id. 516; which is held to be original process Gunn ?;. Howell, 27 id. 676. in Mississippi; but the principle is - Weirich v. Scribner, 44 Mich. 73; general that the garnishee cannot be Coe V. Rocha, 22 La. Ann. 590; Con- held beyond the amount claimed of noly V. Cheesebro, 21 Ala. 106; him, notwithstanding the greater de- Cairo, etc. R. Co. V. Hindman, 85 mand against the defendant. San- Ill. 521; Donnelly v. O'Connor, 22 ford v. Bliss, 12 Pick. 116; Hitch- Minn. 309; Cardany v. Furniture cock v. Watson, 18 111. 289. Co., 107 Mass. 116. « Cairo & St. Louis R. R. Co. v. 3 Carroll v. Milner, 93 Ala. 301 ; Killenburg, 92 111. 142. McGee v. Childress, 3 Stew. 506. 40 626 FINAL JUDGMENT AGAINST GARNISHEE. [§ 924. been judgment rendered in favor of the plaintiff on the gar- nishment, finding the amount.^ § 924. Irregularities. — A garnishee ma}^ attack the princi- pal judgment as invalid,- but he cannot object to irregulari- ties in proceedings against the defendant, unless such as would make the judgment void.^ l*^or can he complain that the decree was without process, if the defendant has confessed service.* Nor can he have a judgment against himself set aside, on the ground that the evidence was insufficient, upon motion made after the term.^ N'or can he demand, for his own protection, that the judgment be rendered upon the evi- dence adduced, when the defendant has confessed judgment.*' Nor can he object to the complaint after judgment against him, when the defendant has been served or is in court and has made no objection.'^ Ilis remedy is by appeal or writ of error, according to the practice in his state. The garnishee should appeal from a judgment against him as acceptor of a draft or order, rendered in an attachment suit against the drawer, since he will remain liable to the holder of the draft.*^ Before property held by the garnishee has been declared subject to garnishment, he may set up that there has been no judgment against him for the debt claimed by the plaintiff, or that judgment against him has been discharged. The court may refuse to strike out his answer for having been filed after the term to which the garnishment was returnable, and refuse to give judgment on the bond to dissolve the at- tachment, Avhile he has the rights above mentioned ; that is, while there has been no judgment against him on the plaint- iff's claim." But if he, by his laches, has allowed judgment against him to become absolute, he has no remedy after the term, in Alabama.^" If he has refused to certify the amount 1 Moore v. Allen, 55 Ga. 67. « Daniel v. Daniels, 63 Miss. 352. 2 Frisk V. Reigelman, 75 Wis. 499. ^ Becknell v. Becknell, 110 lud. 92. He may defend by showing that the 8 Montague v. Myers, 11 Heisk. defendant was dead before the judg- 539. nient was rendered. Allard v. De ^ AVhitehead v. Patterson, 88 Ga. Brot, 15 La. 253. 748. SBensonu. Hollaway, 59Miss. 358. lo Talladega Co. v. McDonald, 97 4 Sadler v. Prairie Lodge, 59 Miss. Ala. 508: O'Neal, Ex parte, 72 id. 572. 560; Renfro v. Merryman, 71 id. 195; 5 Fort V, Stroheeker. 58 Ga. 262. Norwood v. Kirby, 70 id. 397 ; Beadle § 925.] IN GENERAL. 627 and description of the defendant's property in his hands, per- sonal judgment may be rendered against him,' If he has failed to hold the defendant's property because he did not know that it belonged to the defendant, his honest ignorance is excusable.^ It has been held that a garnishee is not bound, in the ab- sence of the defendant, to make objection to amendable defects appearing of record.' He should, however, claim for such absentee the benefit of exemption, when property or a credit exempt by law has been attached or subjected to garnishment.* § 925. Order to imy. — Garnished funds or debts should not be ordered to be paid into court prior to judgment against the defendant; and certainly not before, in any case, unless the attaching creditor has previously secured the garnishee b}'- a bond. Such payment, if made prematurely, without bond, should be annulled, and the funds repaid to the garni- shee, in case the creditor should fail in his suit against the defendant.' A different rule would subject the garnishee to double payment, since the defendant could recover of him after having gained the principal suit. Even after final judgment against the defendant, the gar- nishee should not be subjected to a general order to pay the judgment and all the costs of the proceeding, though his an- swer may have shown that he has sufficient funds in his hands for the purpose; for he is entitled to have the specific sum for which he is held named in the order, so that he may readil}" show what amount of credit he will have in his ac- count with the defendant.^ Such general judgment, however, may be made specific upon motion.'^ A judgment, in such round terms, could not be deemed informal or vicious. It could hardly ever be accurate as to costs at that stage. V. Grahafei, 66 id. 102; Walker, Ex < Chicago & Alton R. R. Co. v. parte, 54 id. 577; AUinan v. Owen, Ragland, 84 111. 375. 31 id. 167; Pharr v. Reynolds, 3 id. ^ go held in Mississippi, where the 521. creditor is reqiiii'ed to give bond to 1 Carter v. Koshland, 13 Oreg. 615. the garnishee to secure payment be- 2 Bingham v. Lamping, 26 Pa. St. fore judgment. Murdockr. Daniel, 340. 58 Miss. 411. 3 Bushnell V. Allen, 48 Wis. 460. ^ See Standard Wagon Co. v. See Johann v. Rufener, 32 id. 195 ; Lowry (Ga.), 19 S. E. 989. Pierce t'. Railway Co., 36 id. 283. ' Randolph v. Little, 62 Ala. 396. 628 FINAL JUDGMENT AGAINST GARNISHEE. [§§ 926, 927. II. When Yoid or Yoidable. § 926. Void judgment. — If the original attachment served upon the garnishee is void, the order against him thereunder is so, notwithstanding judgment obtained against the princi- pal defendant.^ If the writ be valid, but the defendant has not been notified of the attachment, either actually by service, or constructively by publication, any judgment against a gar- nishee in such attachment case would be void.- In all cases, if the judgment against the principal defendant is null, that against the garnishee is so; ^ but it has been held that, though the former may have assigned the debt due him by the gar- nishee, the latter, if he has paid under a judgment, should be protected from a suit subsequently brought against him by the assignee; and that, too, even if he had had notice of the as- signment after he was summoned and before the judgment.'* If the judgment against the principal defendant is reversed on appeal, that against the garnishee falls with it; it becomes an absolute nullity.^ Such would be the result though the minor judgment be not mentioned in the decision of the appel- late court, and though the garnishee be not before that tri- bunal either as appellant or appellee. If a judgment in favor of the defendant is reversed on appeal, the garnishee becomes liable to the plaintiff for paying to the defendant while the appeal was pending.^ It has been held that if the attachment defendant has not been made a party to an ancillary garnishment proceeding in which the garnishee has been charged and has acquiesced, he cannot move for a new trial of the proceeding.^ § 927. MistaliG of name. — Proper names, as well as com- mon, are only signs of ideas; and when there is certainty as to the person meant, an error in designating him by the sign which he has adopted, or which was bestowed upon him by his parents, is not fatal in attachment pleadings. A garnishee 1 Greene ZJ. Tripp, 11 R. I. 424. niatheney v. Earl, 75 Ind. 531, 2 Railroad v. Todd, 11 Heisk. 549. and cases therein cited. In Iowa the defendant must be no- ■* Newman v. Manning, 79 Ind. tified ten days before a garnishee 218. can be condemned to pay into court. ^ Clough v. Buck, 6 Neb. 343. la. Code, § 2975; Williams v. Will- 6 Bryan v. Duncan, 19 D. C. 379. iumf, Gl'la. G12. 7 foster v. Haynes, 88 Ga. 240. § 928.] ^VHEX VOID or voidable. G20 who has responded to a summons directed to him, though his right name was not in the direction, cannot enjoin the execu- tion on the ground of misnomer in the summons after judg- ment has been rendered against him in his right name.^ lie might have moved to set aside the service of summons be- fore answering or submitting to a rule to answer.^ Xor can the garnishee shield himself behind a mistake in the defend- ant's name, and pay over what he owes to him after having been summoned as garnishee. Even if the error existed at the time the summoned garnishee paid to the defendant, and its correction took place afterwards and no notice of the change from the wrong appellation to the right was given to the garnishee, still he would be responsible to the attaching creditor if the latter should show that the defendant was as well known by the one name as the other and that the gar- nishee knew who was meant by the designation emplo3'ed.^ The garnishee has no right to object to the amendment of the plaintiff's affidavit and bond, so as to correct misnomers and like mistakes, if the defendant is in court.'* When an attachment suit is brought by a firm, the partnership desig- nation should be followed by a disclosure of the members' names. The omission of them is an error that may be amended.^ § 928. YoidaMe lyroceedings. — Errors and irregularities in the proceedings of an attachment suit in which the court has jurisdiction cannot be successfully set up by the garnishee to avoid a judgment against himself.^ If the proceedings are not void but voidable, the defendant may reverse them upon appeal or writ of error as in other cases, but the garnishee is uninjured if he is made to pay to the attaching creditor, and the defendant acquiesces, however irregular such jurisdic- tional proceedings ma}^ be. The garnishee cannot assign as error mere irregularities in the judgment against the princi- pal defendant, but he may assign whatever would make such judgment void.^ He may have a judgment set aside as void 1 Williams v. Hitzie, 83 Ind. 303. < Id. ; Moore v. Davis, 58 Mich. 25. 2 Bait. & O. R. R. Co. v. Taylor, 81 5 Barber r. Smith, 41 Mich. 138. Ind. 24; Whitney v. Lehmer, 26 id. «Earl v. Matheney, GO Ind. 202. 508; Gould V. Meyer, 36 Ala. 565. "Erwin v. Heath, 50 IMiss. 795. •) Bait. & O. R. R. Co. v. Taylor, 81 "When the garnishee has disclosed in- Ind. 24. debtedness to the defendant he can- 030 FINAL JUDGMENT AGAINST GAKNISHEE. [§§ 929, 930. if entered against himself by the clerk without authority.^ And there may be arrest of judgment for fraud.- A verdict and judgment against him for a specific sum in an attachment in execution are erroneous.^ § 929. Errors of execution. — Should there be a joint judg- ment rendered against the defendant and the garnishee, the latter may have execution set aside as to himself by means of certiorari. He cannot be lawfully made a general defend- ant so as to have his own property subjected to execution for another's debt.* The execution against him ought to show that it is limited to the sum which he has been ordered to pay into court. Should the officer executing the writ collect more, he ought to return the surplus to the garnishee.^ To condemn the debtor's debtor as though there were solidarity of indebt- edness to the attaching creditor is wholly unjust and unwar- rantable. Indeed, the judgment against the garnishee is rather in favor of the principal defendant than against him. It is really a judgment in favor of the defendant in the attachment suit, for the use of the plaintiff therein.^ §930. Premature judgment. — AYhen judgment has been rendered against a garnishee prematurely, before any has been decreed against the defendant, it should be set aside upon proper application.'^ It may be set aside on other grounds, or its execution enjoined. If the garnishee shows that, without laches on his part, he was prevented from a timely appear- not appeal from judgment charging and any balance beyond what is nec- him on the ground that an inter- essary to satisfy the attaching cred- venor who claimed the debt has itor remains for the benefit of the been dismissed. Alamo Ice Co. r. attacliment debtor. Ham v. Peery, Yancey, 6G Tex. 187; Germania 39 111. App. 341 ; Kern v. Chicago- Bank V. Peuser, 40 La. Ann. 796. Ass'n, 140 111. 371 ; Webster v. Steele, 1 Lee V. CarroUton Savings & Loan 75 id. 544 ; Chicago & Rock Isl. R. R. Association, 58 Md. 801. Co. v. Mason, 11 111. App. 525. The 2 Corbin v. Goddard, 94 Ind. 419. judgment must be for the plaintiff, 3 Bonnaffon v. Thompson, 83 Pa. not creditors generally, unless they St. 460. are all virtually plaintiffs. Ameri- -1 Masters v. Turner, 10 Phila. 482. can Bank v. Indiana Banking Co., 5 Id. 114 111.483. 6 In Illinois the judgment is in ' Bryan v. Dean, 63 Ga. 317. Judg- favor of the defendant for the use of ment entered nunc pro tunc. Cap- the plaintiff, when rendered against ital City Bank v. Wakefield, 83 la. a garnishee in an attachment suit ; 46. §931.] WHEN VOID OK VOIDABLE. 631 ance, and that he could have set up a good defense, and that the collection of the amount he has been ordered to pa}' would work him injiuy and injustice, the court may give him relief. Especiall}'' if he can show that he was prevented from mak- ing a timely defense b}^ the fraud of the plaintiff, will he be entitled to have the order set aside. Unavoidable accident, too, may, in the discretion of the court, be deemed sufficient ground for vacating the order and allowing the garnishee to make answer or set up defense.^ He was denied relief, how- ever, in one instance, after having sworn to answers written out for him, at his request (by the clerk, who left out part of what he had been directed to write), though he supposed the answer complete when he signed it and swore to it.- § 931. Release of garnisliee on defendant's bond. — The princi- pal defendant ma}^ have the garnishee dismissed by giving bond and security. This may be done either before or after judg- ment in some states, as in Alabama.^ And the plaintiff may sue upon the bond though no judgment be rendered against the garnishee.'* Judgment against sureties on a bond to dis solve garnishment cannot object to the condition to pay any judgment that may be rendered against the defendant as ad- ministrator, nor can they object that the judgment was against him personally. It was held that the discharge of the trustee Avas consideration sufficient to support the sureties' obligation. As that obligation was conditioned to pay any sum for which the trustee may be charged, the bond was held good at com- mon law (it was not statutor}'^), and evidence tending to show that he was not chargeable was ruled out.^ Generally speak- ing, judgment against the sureties on a garnishment dissolu- tion bond cannot be entered when the garnishee has been discharged, notwithstanding the literal wording of the bond, drawn under a statute repealed, which would have held them.® 1 Freeman v. Miller, 53 Tex. 372. 5 Ri(;]^ ^.. Sowles, 64 Vt. 408; Cross ^Lawton v. Branch, 62 Ga. 350. v. Richards, 80 id. 641, as to thecon- ■^Balkuni v. Reeves (Ala.), 13 So. sideration. 524; Ala. Act of Feb. 12, 1891. «*Linder v. Benson, 78 Ga. 116; ^Balkum v. Strauss (Ala.), 14 So, Burke v. Hance, 76 Tex. 76. 53. See Guilford t'. Reeves (Ala.), 15 So. 661. 632 FINAL JUDGMENT AGAINST GARNISHEE. [§§ 932, 933. III. Inteeest, when Chargeable. § 932. Interest-hearing debt. — When the garnishee owes the defendant a debt bearing interest, he is liable for the in- terest unless prevented from paying the debt by the garnish- ment. If he has attachable funds in his hands which he has put at interest, he is liable for what they jield. If he has property attachable, he is responsible for its fruits which he gathers after notice. If he uses what is attached in his hands in his general business so that it is not distinguishable from his own property or funds, he should account for its usufruct, if practicable, or pay legal interest on the amount or value. The fact of his being in receipt of interest from money, or usufruct from property attached in his hands, or in the enjoy- ment of an interest-bearing obligation, must be made to appear, by his answers or otherwise, to render him chargeable for inter- est or fruits. His contract with the defendant, the note which he has given, the character of their relation of debtor and cred- itor under the law and the usages of business, generally enable the court to see whether it is just to charge the honestl}^- answering garnishee beyond the property attached or the prin- cipal sum arrested in his hands. § 933. When due defendant. — Whenever the defendant would have been entitled to interest had no attachment been laid, the plaintiff, in a successful attachment suit, will be so en- titled, so far as interest is due at the date of the summons; and he will be entitled to such interest as may thereafter accrue.^ Of course none can thereafter accrue if the arrest in the hands of the garnishee stops interest from running by locking up the funds in his hands as a mere holder of a stake, and the garnishee derives no benefit b\" using what is legally thus withheld from use. !Notes not matured, bearing interest from date, acknowl- 1 Huntress v. Burbank, 111 Mass. vented from paying the debt by the 213; Bickford v. Rice, 105 id. 340; garnishment. Little v. Owen, 83 Adams v. Cordis, 8 Pick. 260; Ori- Ga. 20; Mackey v. Hodgson, 9 Pa. ental Bank v. Insurance Co., 4 Met. St. 468; Clark v. Powell, 17 La. Ann. 1; Baker v. Central Vt. R. Co., 56 177; Cohen v. Insurance Co., 11 Mo. Vt. 302. But it has been held that 374. Certainly no interest after he interest should not be required of has paid into court. Long v. John- the ganrishee for the time he is pre- son, 74 Ga. 4. §§ 93i, 935.1 INTEREST, WUEN CHARGEABLE. C33 edged by the garnishee to have been given by him to the de- fendant and to be of an unnegotiable character, and to be still in the defendant's hands, since no notice of transfer has been given, continue to bear interest after the summons of gar- nishment just as before, and the interest becomes part of the ever-growing debt and is subject to the attachment like the principal.^ § 934. Not lixible. — "When the garnishee is ready to pay the defendant what he owes, ready to pay it over to the plaintiff whenever ordered to do so b}" the court, is restrained from using what he holds and from deriving any benefit by the holding, and is an honest and fair-dealing respondent to inter- rogatories, he is not chargeable with interest. "When the note he has given, or the contract he has made, or the obliga- tion he has in any way incurred, is not interest-bearing, it cannot be made of different character by the mere act of at- taching it. The garnishee is not supposed to make any use of the money in his hands from the time of summons to the time when he pays it into court under order, and therefore he owes no inter- est for such time. Whatever it is his duty to do he must be presumed to do. Unless such presumption is rebutted, he can- not be required to paj^ interest on funds thus held. § 935. Exception to the 7'ule of non-liaMUty. — There is an exception to this presumption when the money ought to be deposited in court when attached, but is held by the garnishee till after final judgment against the defendant and till an order of court for the paying over of the funds subjected to garnishment. And in case the garnishee has denied the pos- session of funds in his hands, and such possession has been established by evidence aliunde, there will be no presumption that he held the funds without using them from the time of summons till the payment into court under order. If he pre- vents the pa3'ment by his failure to answer promptly and fairly, and to pay over when ordered, he may be charged with interest during the delay.- The right rule is that he should 1 Interest runs, though the creditor - Chase v, Manhardt, 1 Bland (Md.), has attached a credit of defendant's 333; Jones v. Bank, 99 Pa. St. 317; in his own hands. Willing v. Con- Rushton v. Rowe, 64 id. 63 ; Jack- sequa, Peters' C. C. 301. son's Ex'rs v. Lloyd, 44 id. 82; Upde- 634 FINAL JUDGMENT AGAINST GAKNISHEE. [§§ 93G, 937. pay interest while he holds the defendant's money on interest in the latter's favor, and should not pay any after he has put the principal into court, or has disclosed and has been ordered to pay over, and is no longer using the money.^ § 936. Faults of defendant — Interest by way of damage caused by the acts or omissions of the defendant are not charge- able against the garnishee.- The latter is chargeable for the interest which he has received, and also for such as he has obligated himself to pay.^ A garnishee under a void process is not relieved from paying interest on money in his hands to whom, it is due; especially when it does not appear that such money has been set apart to answer the summons.* The suc- cessful defendant should not lose his interest.^ IV. Costs, Fees and Compensation. § 937. Costs — When chargeahle. — It is a hard case for an innocent and frank-answering garnishee, totally disinterested in the litigation as he is, to be mulct in costs. Yet, if his denial is traversed, and witnesses pro and coti brought in, and con- tinuances follow, and commissions issue, and a protracted con- test between him and the plaintiff ensue (which he is obliged to encounter or suffer wrong), and finally he be adjudged liable as garnishee, the costs may exceed the fund in hand. The hardship in any such case clearly appears upon the reflection that he had no agency w^hatever in provoking the litigation, no chance whatever of being benefited by it in any event, and was driven to defend himself by way of protection from being wronged. The fact that he is finally adjudged liable is no justification of the hardship; for, to say nothing of his loss of time and of the inestimable annoyance he has suffered, he graff V. Spring. 11 S. & R. 188; Nor- 69; Work v. Glaskins, 33 Miss. 539; ris V. Hall, 18 Me. 332; Georgia Ins. Candee v. Webster, 9 Ohio St. 452. Co. V. Oliver, 1 Ga. 38; Candee v. 2 g^a^^gcot Machine Co. v. Par- Skinner, 40 Ct. 464 ; Woodruff v. tridge, 5 Fos. 369. Bacon, 35 id. 97; Moore v. Lowry, 25 » Abbott v. Stinchfleld, 71 Me. 213; la. 336. Smith v. Flanders, 129 Mass. 322; iRoss V. Austin, 4 Hening & M. Baker v. Railroad Co., 56 Vt. 302. (Va.), 502 ; Tazewell v. Barrett, id. * Hawkins v. Ga. Bank, 61 ,Ga. 106, 259 ; Smith v. German Bank, 60 Miss. ^ Sickman v. Lapsley, 13 S, & R. 224. § 938,] COSTS, FEES AND COMPENSATION. 635 is mulct in costs for no fault of his, even thoufjh the court condemn him to pay; for he had the undoubted right to de- fend himself. It is different, so far as concerns the hardship, when the garnishee causes the traverse, protracts litigation and in- creases costs by his own fraud, crookedness, collusion with defendant and other reprehensible courses. In such case, if finally found chargeable, costs are not too much of a punish- ment for him. He is never chargeable for more than the plaintiff's claim and costs, though his obligation to the de- fendant be greater,^ except when the form of judgment is in favor of the defendant against the garnishee at the instiga- tion of the plaintiff.- The obligors on a garnishment bond are not bound for the costs of the main action.^ § 938. Entitled to costs and allowances. — AYhere the prop- erty or credit subjected to garnishment proves sufficient to pay both debt and costs, the garnishee's costs may be covered by it, as usually they are. It is but just to tax a reasonable fee for the garnishee's counsel, to be paid with the rest of the costs out of the seized and subjected property. The nice questions of jurisdiction which are frequently involved in at- tachment suits render counsel indispensable to the safety of the garnishee in making payments under orders of court. The rule is settled that the garnishee is not personally lia- ble to costs when he acknowledges indebtedness or possession of the defendant's property and does not resist the garnish- ment.^ l\o judgment can be rendered against him beyond the amount in his hands, either for principal or costs. On the other hand, the rule is pretty general that he is liable to costs when a contest ensues between him and the attaching cred- itor upon his denial of having property or credits of the de- fendant subject to execution, if he fails in such contest.^ So, ^Tiaimons v. Johnson, 15 la. 23; Wolf, etc. Co. v. Jackson, 66 Wis. Doggett V. Insurance Co., 19 Mo. 42. See White v. Kilgore, 78 Me. 201; Tyler v. Winslovv, 46 Me. 348. 323; Jackson v. St. Louis, etc. R. , -Webster v. Steele, 75 111. 544; Co., 89 Mo. 104; Schooler v. Als- Stahl V. Webster, 11 id. 511. trom, 38 La. Ann. 907. ^Heimoth v. Le Suer (Tex. Civ. 5 Strong v. Hollon, 39 Mich. 411; App. ), 26 S. W. 523. Webster Wagon Co. v. Peterson, 27 4 Johnson v. Delbridge, 35 Mich. W. Va. 314. 436; Zimmer r. Davis, id. 39; Little 636 FINAL JUDGMENT AG-AINST GARNISHEE. [§§ 939-941. also, if he does not respond to the interrogatories, fails to meet them fairly or neglects them altogether.^ § 939. So long as the litigation is confined to the proper parties the third person questioned cannot be put in a worse position than he was before the summons by being required to pa}'' the costs of the proceeding w^hich brought him into court on other people's business. The reason of his liability for costs, in the instances above mentioned, is that he himself needlessly provokes much greater costs by contesting his own liability than would otherwise arise ;^ but the reason seems not well founded, for he would never have given rise to such fur- ther costs had he been let alone. He is not the original instiofator of the contest between himself and the attaching creditor. He tries to protect himself without possible further benefit. § 940. The garnishee who has not made an issue is entitled to costs.^ He is as much entitled as a mere witness;* and when the character of litigant is forced upon him, the court ought to allow him reasonable costs. Always w-hen the judgment is in his favor, after his litigation upon an issue, he is entitled to his costs. And when it is against him, the court may award him costs ;^ for it may be no fault of his, but rather a duty, to test the question of his liability under many con- ceivable circumstances. Costs were allowed to a garnishee, who was summoned and who appeared and answered, though meanwhile the case had been abandoned by the plaintiff." Though entitled to costs and mileage, he cannot withhold his answer till they have been paid.'' § 941. Attorney's fees and compensation. — As a general rule a fair-dealing garnishee, whether he makes an issue or not, ought to be allowed attorney's fees,^ costs and ex- iConant v. Burns (N. H.), 19 A. etc. R. Co., 60 Fed. 43; Ga. Code, 11; Randolph v. Heaslip, 11 la. 37. §3549. 2 Lucas V. Campbell, 88 111. 447. * Washburn v. Clarkson, 123 Mass. 3Cuny V. National Bank of Au- 319. gusta, 53 Ga. 28; Hammett v. Mor- 5 stong i?. Hollon, 39 Mich. 411. ris, 55 id. 644. See Selz v. Atkin- e Duffee v. Call, 123 Mass. 318; son Bank, 55 Wis. 225; Clark v. Brown v. Seymour, 1 Pick. 32. Gresham, 67 Miss. 203; Mechanics', '^ Stock berger v. Lindsey, 65 la. etc. Bank v. Glaser, 40 Mo. App. 471. 371; Rome R. Co. v. Ricimiond, 8 Griffith v. Stockmuller, 14 Philo. §§ 942, 943.] COSTS, fees and compensation. 637 penses^ and reasonable compensation. ^ And when he has been allowed them, he may sue to recover them of the plaint- iff on the attachment bond.'^ It was held that the costs of the attachment proceedings should be paid out of the fund brought into court by the gar- nishee who was indebted not only to the defendant but also to the interpleaders.* But he cannot pay his counsel fees out of that fund,^ unless they have been taxed as costs and ordered to be paid out of it. § 942. The garnishee is entitled to discharge and to an al- lowance of his costs, where there has been an abuse of pro- cess, undue delay in bringing in the principal defendant, or other injurious acts or laches of the attaching creditor.^ But if he has answered denying indebtedness and is troubled no further, he would not be entitled to any costs at subsequent terms of court with the case still pending, though the defend- ant does not appear to protect himself.^ If the case requires attention, however, in order to prevent a wrongful order on such answer, and the garnishee is obliged to keep counsel em- ployed to protect his rights, he ought to be allowed costs and attorney's fees in such subsequent terras. Such allowances, when not authorized by statute, are within the discretion of the court.^ And all legal charges on property surrendered should be allowed.^ § 943. Costs, etc., when garnishee is discharged. — Where there' is a rule to show cause why judgment should not be rendered against the garnishee, a failure of the plaintiff-in-rule to appear at the time appointed for its hearing is good ground for a motion b}'^ the garnishee that the garnishment be discon- 236 ; Curtis v. Ford, 78 Tex. 262, 269 ; 2 Lackett v. Rumbaugh, 45 Fed. 27. Willis i\ Heath, 75 id. 124; Johnson And see cases just cited above. V. Blanks, 68 id. 495. » State v. Immer, 52 Mo. App. 536. 1 National Bank v. Brainard, 65 Vt. * Baker v. Lancashire Ins. Co., 53 291 ; Senior v. Brogan, 66 Miss. 178 ; Wis. 193. Bernheim v. Brogan, id. 179; Clark ^ ^^fja^^g y^ Penzell, 40 Ark. 531. V. Gresham, 07 id. 203; Darnall v. 6 Xoble r. Bourke, 44 Mich. 193. Wood, 82 Ga. 556 ; Steele v. Thonip- " Hawkins v. Graham, 128 Mass. son, 38 Mo. App. 312 ; State v. Bick, 20. 36 id. 114; Keating v. Refrigerator 8 ij. Co., 32 id. 293; Moore v. Reed, 84 9 Williamson v. Gayle, 7 Gratt. Ga. 658; Wengert v. Bowers, 8 Pa. 152. Co. Ct. 292. 638 FINAL JUDGMENT AGAINST GARNISHEE. [§ 944. tinued or the plaintiff-in-rule nonsuited.^ And if, after the garnishee has been discharged under such circumstances, the defendant should assign his property, the subsequent appear- ance of the plaintiff and the garnishee could not affect the vested rights of the assignee; and this would be true though the assignment be made on the same day as the writ of gar- nishment.- If the plaintiff commits laches by delaying unrea- sonably to take the garnishee's deposition, the latter may be discharged;^ so, also, if he fails to bring the principal defend- ant into court by reason of his own neglect.* When the gar- nishee is discharged, the costs fall on the plaintiff; when charged, upon the defendant or the property or fund attached, if there is final judgment for the plaintiff.* Y. Garnishment in Execution. §944. Notice. — A notice of garnishment to aid execution should contain the names of the parties and state the judg- ment and the amount to be collected of the garnishee.^ It has been held that omission to state the judgment maj'^ be supplied by way of amendment.^ These requisites of the notice are for the information of the garnishee; not for the court; for when cases against garnishees are to enforce judg- ments against principal debtors, the court will take judicial notice of the judgment rendered by it without profert.^ 1 Wilcox V. Clement, 4 Den. 162 ; 5 When the garnishee has been McCarty v. McPherson, 11 Johns, charged on his own disclosure, he 407; Shufelt v. Cramer, 20 id. 309; cannot recover counsel fees of the Barber v. Parker, 11 Wend. 52; plaintiff under the Texas statute. Stadler v. Moors, 9 Mich. 264; Red- Llano, etc. Co. v. Castanola (Tex.), man v. White, 25 id. 526; Brady v. 23 S. W. 1016. Tabor, 29 id. 199. In Michigan judg- ^ Walton v. Sharp, 11 Lea, 578. In ment of nonsuit must be entered if Pennsylvania a garnishment to aid plaintiff fail to appear. Johnson v. execution may be served on an ex- Dexter, 88 Mich. 695. ecutor, to subject a legacy, as an or- - Johnson v. Dexter, 38 Mich. 695. dinary summons is served. Purves When the discharge is judicially v. Lex (Pa.), 9 A. 167. questioned in subsequent proceed- ^ Memphis, etc. R. Co. t;. Whorley. ings, the motion to discharge may 74 Ala. 264. See Whorley v. Mem- be proved and admitted in evidence, phis, etc. R. Co., 72 Ala. 20. Lenhoff v. Fisher, 32 Neb. 107. « Kenosha Stove Co. v. Shedd, 82 3 Demeritt v. Estes, 56 N. H. 313. la. 544; States. Schilling, 14 id. 455; * Noble V. Bourke, 44 Mich. 193. Farrington v. Sexton, 43 Mich. 455; §§945,946.] GARNISHMENT IX EXECCTION. G39 § 945. Practice in California. — There is a statutory pro- ceeding in California in lieu of garnishment in execution. The judgment plaintiff, on showing that a third person owes the defendant more than fifty dollars, obtains an order that such person be cited to appear and answer the debt. If the debt is acknowledged it is paid into court and applied to the judgment. If not, the court authorizes the plaintiff to sue such person for the debt.^ This proceeding is a substitute for a creditor's bill.^ §940. Order to imy. — The effect of an order of court di- recting that the garnishee in execution shall pay into court the moue}'' which he admits to be due the defendant is to sub- ject such sum to the satisfaction of the attaching creditor's judgment. In such case the third person suffers no wrong. But in case he should deny indebtedness, he could not be law- fully ordered to pa}' anything into court unless his denial has been overborne b}'^ counter-testimon^^ In order to such result there would be necessity for a trial; and, in such case, the third person denying indebtedness ought to have as much latitude of defense as he would have in a suit by the defend- ant in the attachment suit brought directly against him. Should- such ancillary suit be allowed? Its allowance is not universal,^ and when it is permissible the tendency is to con- fuse the subordinate wath the principal issue. A garnishee in execution, denying indebtedness, cannot be State V. Bowen, 16 Kan. 475; Far- ^Xn Kansas, where the garnishee rar v. Bates, 55 Tex. 193. In Illinois in execution denies indebtedness, lie garnishment in execution will not cannot be subjected to trial, judg- lie in a circuit court on a judgment ment and execution in the attach- in the court of a justice of the peace, ment proceeding, but the attaching Hughes V. Bank, 47 111. App. 567. creditor can subject to execution 1 Cal. Academy of Sciences v. what the garnishee owes to defend- Fletcher, 99 Cal. 207. ant only by a direct suit against the 2 Id. ; High v. Bank, 95 Cal. 386 ; garnishee. Board of Education v. Habericht v. Lissak. 78 id. 327 ; Bank Scoville, 13 Kan. 32 ; Arthur v. Hale, V. Robinson, 57 id. 523; McCulIough G id. 165; Atlantic &, Pacific R. R. r. Clark, 41 id. 302; Adams I'. Hack- Co. v. Hopkins, 94 U. S. 11. In ett, 7 id. 201 ; Lynch v. Johnson, 48 Georgia the plaintiff in an eject- N. Y. 33; Grahan v. Railroad Co., 10 ment suit may have pi'ocess of gar- Wis. 459; Hexter v. Clifford, 5 Colo, nishment in aid of his count for 168; Lathrop V. Clapp, 100 Am. Dec. mesne profits. Walker v. Zorn, 56 501, note. Ga. 35. 610 FINAL JUDGMENT AGAINST GARNISHEE. [§ 947. compelled to pay unless the plaintiff institutes action and gets judgment against him.^ But ^Yhen he admits it there should be simply an order to pay — not a personal judgment.^ This may be followed by execution against the garnishee.^ "When an execution has been returned nulla l)ona the attach- ment is abandoned.^ It is equivalent to a return that no attachment has ever existed, since there could have been none if no property is found for it to rest upon. True, goods may have been attached but destroyed before time for execution. If, for any reason, no lien has been perfected by judgment, the attachment suit is at an end. But if a valid personal judg- ment has been rendered, it may be executed like any other personal decree; and, to this end, a debtor of the judgment defendant may be garnished at this stage, and service may be had upQn him anywhere in the state.^ It is like tlie summons of a witness, which may be served in any county. § 94:7. Defense. — If the defendant has satisfied the judg- ment, that fact may be pleaded successfully by the garnishee in execution.^ The dissolution of the attachment, or the com- pletion of the execution, or anything that terminates the plaintiff's proceedings against the defendant when not per- sonally bound, may be set up by the garnishee as a discharge of himself.^ The garnishee in execution may plead want of service upon the principal defendant.^ If no execution has been issued and served, the garnishment is inoperative.^ He may avail himself of whatever renders the judgment nugatory in the main action;^" or he may waive irregularities. He waives the irregularities of the execution when he discloses his indebtedness without objection." He may qualify his dis- iHartman v. Olvera, 51 Cal. 501. Thompson v. Wallace, 3 Ala, 132; See Wolflf V. Bank of Commerce, 10 Price v. Higgins, 1 Littell, 274. Mo. App. 586; St. Louis, etc. R. Co. niitchell v. Watson, 9 Fla. 160; V. Richter, 48 Ark. 849; Wingfield Ridlon v. Cressey, 65 Me. 128; Mc- V. McLure, id. 510; Ark. Civ. Code Eachin v. Reid, 40 Ala. 410. Proc, § 224, as amended in 1S71 ; ^Cotar. Ross, 66 Me. 161. Mansf. Dig., § 317. 9Hower v. Ulrich, 156 Pa. St. 410. 2 Clark V. Foxworthy, 14 Neb. 241. lo gtreissguth v. Reigelman, 75 Wis. 3De Witt V. Kelly, 18 Oreg. 557. 212; Healy v. Butler, 66 id. 9. 4 Butler V. White, 25 Minn. 432. ^i Carey v. Brinton, 6 Houst. (Del.) 5 Toledo R. R. Co, v. Reynolds, 73 340. His denial maybe outweighed 111. 487. But see Marqueze v. Le by his facts stated. White v. Kahii Blanc, 29 La, Ann, 194, (Ala.), 15 So. 595. ^Hammett v. Morris, 55 Ga. 644; ( §§ 94'^, OiO.] GARNISHMENT IN EXECUTION. Gil closure by showing offsets due him, and whcatever diminishes his obligation to the principal defendant, as he may when gar- nished before judgment. § 9-48. A judgment creditor, by garnishing the officers of a railroad company, may subject to execution the net income of the road between the date of a mortgage foreclosure and that of the appo-intraent of a receiver, if 'the decree of fore- closure is silent as to such income, and if the road is run bv the company during the interval mentioned, if the trustees under the mortgage never had possession nor claimed the income.' Receivers of a railroad company, appointed by a federal court, may be garnished in a state court for a debt incurred by them while operating the road under their appointment. J^o execution issues, but the federal court orders the payment in the receivership proceedings.'^ A co-defendant, after judgment in sob'do, cannot be gar- nished in execution; an exception to such garnishment should be sustained.* The proper course is to issue a direct execu- tion against the property of either of the judgment debtors. It has been held that choses in action cannot be reached bv garnishment in execution;'' and that a partnership interest in firm property cannot be thus reached.^ A judgment creditor may aid execution by garnishment if there has been a fraud- ulent conveyance by the judgment debtor to the garnishee.® § 949. JExami nation. — The practice of examining garnishees after an unsatisfactory answer, under an order of court or under statutory authority, after judgment against the defend- ant, is similar to that of examining them before judgment. It is therefore unnecessary to repeat what has been said on this subject. The same rule holds as to contingent liability.'^ iGilman v. Ill, & Miss. Tel. Co., 1 oBirtwhistle v. Woodward, 17 Mo. McCrary, C. C. 170; Miss. R. R. Co. App. 277; Fentonv. Block, 10 id. 536. V. U. S. Express Co., 81 111. 534. 6 Id. ; St. Louis, etc. Co. v. Cronin, 2 Irwin v. McKechnie (Minn.), 59 40 Mo. App. 586; Lackland i\ Gar- N. W. 987. esche, 56 Mo. 367 ; Potter v. Stevens, 3Baily t\ Lacey, 27 La. Ann. 39; 40 id. 591; Armstrong v. Tuttle, 34 Richardson v. Lacey, id. 62. See id. 432. Curry v. Woodward, 50 Ala. 258. ^ Patterson v. Caldwell, 124 Pa. St. *Gilmore v. Carnahan, 81 Pa. St. 455; Day v. Insurance Co., Ill id. 217. 507. 41 642 FINAL JUDGMENT AGAINST GARNISHEE. " [§ 950. The position of the garnishee being that of a party to a side issue — not that of a witness in the main case — a wife who has denied indebtedness to her husband in reply to statutor}'- interrogatories may be further examined with the view of charging her as garnishee in a suit against him. While she could not be made a witness against him, she may be examined in the capacit}^ of garnishee though the result be her con- demnation to pay into court what she owes him, or deliver what property of his she holds, in aid of the plaintiff's writ of execution. §/950. Could she shield herself from further examination after having denied liability in answering the statutory ques- tions, she might thus interpose the sanctity of the marital relation to the defeat of the ends of justice. Her husband, being already adjudged the debtor of the plaintiff, should in good conscience permit the execution of the judgment against any propert}'^ or credit of his not exempt from execution. His wife, by failing to disclose any such property in her possession or credit due him from her, would not be in the position of one refusing to testify in a cause pending against her husband, but in that of one impeding the execution of a judgment already obtained. Upon refusal to answer further questions duly propounded, a wife may be charged as garnishee in execution of a judgment rendered against her husband, just as any other garnishee may be charged on refusal ; but if, instead of insisting upon an order so charging, the plaintiff should cite the garnishee to reappear for another examination, he would be understood to waive his right to have her charged upon her first refusal.^ Such waiver would be implied in the case of any garnishee. 1 Thompson v. Silvers, 59 Iowa, answered the statutory questions 670, in exposition of section 2984 of and that she could not be required the Iowa Code (see McCIain's Stat.), to testify against her husband, the providing that if the garnishee fail judgment debtor. The lower court to appear and answer the interroga- having sustained these grounds, the tories without sufficient excuse he appellate court remanded the case shall be presumed to be indebted to and required her to answer. The the defendant to the full amount of reasoning on the wife's position as the plaintiff's demands. In this case garnishee, distinguishing it from the garnishee appeared, but failed to that of a witness against her bus- answer the additional interrogatories band, seems to be of general applica- on the grounds that she had already tion. §§ 951, 952.] garnishee's pleas. 643 VI. Garnishee's Pleas in Defense of Subsequent Suit by THE Attachment Defendant. § 951. Pendency of garnisliment iwoceecUncjs pleaded in abatement. — If the garnishee is sued by his creditor (the at- tachment defendant) after he has been summoned but before he has paid into court, when the judicial requirement that he so pay is not yet ordered and is therefore uncertain, he may meet the demand by a plea in abatement. He cannot plead in bar at this stage.^ He ought to have (and is entitled to) delay till the result of the garnishment proceedings be reached, when he either will have been discharged so as to be free to confess judgment or defend, or will have been obliged to pay into court and thus furnished with a good plea in bar to his creditor's action. The right to plead garnishment in abate- ment during the pendency of the proceedings is established by man}' decisions.- If one is garnished in a federal court he may plead it in abatement of a direct action against him in a state court.^ § 952. Pendency o/jtrior suit pleaded i7i garnishment pro- ceedings. — When the garnishee has been sued by his own creditor before his garnishment, he should disclose the fact. As the garnishment cannot atfect the prior suit,* it ought to be dismissed unless the garnishee can plead it in that suit.* Such suit does not relieve the garnishee of all eventual liabil- iShealy v. Toole, 56 Ga. 310. 23 id. 678; Morton v. Webb, 7 id. 2 Yazoo R. Co. V. Fulton, supra 123; Carroll??. McDonough, 10 Mar- (disapproving in part Kellogg v. tin (La.), 609; Piersonr. McCahill, 21 Freeman, 50 Miss. 127); Howe v. Cal. 132; McFadden v. O'Donnell, Tefft, 15 R. I. 477,480; Aldrich v. 18 id. 160; Lynch v. Hartford Ins. Etna Co., 8 Wall. 491 ; White's Bank Co., 17 Fed. 637. See Clark v. Great V. Smith, 7 id. 646; Grosslight v. Barrington. 11 Pick. 260. Crisup, 58 Mich. 531 ; Near v. Mitch- 3 gut see McRee v. Brown, 45 Tex. ell, 23 id. 383; Haselton v. Monroe, 503. 18 N. H. 598; Evans v. Matlock, 8 nVood v. Lake, 13 Wis. 84; Noycij Phila. 271; Mars v. Virginia Co., 17 v. Foster, 48 Mich. 273; Custer u. S. C. 514; Embree v. Hanna, 5 White, 49 id. 263 ; Kidd r. Shepherd, Johns. 101; Crawford v. Slade, 9 4 Mass. 238. See McCaffrey v. Ala. 887; Montgomery Gas Co. v. Moore, 18 Pick. 492, and Locke v. Merrick, 61 id. 534 (compare Craw- Tippets, 7 Mass. 149. ford V. Clute, 7 Ala. 157); Winthrop 5 Thayer v. Pratt, 47 N. H. 470; V. Carleton, 8 Mass. 456;' Jones v. Wadsworth r. Clark, 14 Vt. 139. W^ood, 30 Vt. 268 ; Spicer v. Spicer, See Smith v. Barker, 10 Me. 458. 64:4: FINAL JUDGMENT AGAINST GARNISHEE. [§ 953. ity.^ If, after disclosing the fact of the pendency of the suit, he becomes charged in garnishment and made to pay, he ought to have credit on any subsequent judgment rendered against him, as above shown. Should judgment be rendered against him in a suit b}' his creditor (the attachment debtor) while the garnishment pro- ceedings are pending, and should he be afterwards made to pay into court as garnishee, he may have relief from his cred- itor's judgment in a court of equity.^ § 953. Payment in garnishmoit procGedings. — The attach- ment debtor cannot destroy or impair any right which the at- tachment creditor has obtained, by suing the garnishee after final judgment sustaining the garnishment; nor can he thus re- lieve the latter from liability to the garnishor.'' He cannot suc- cessfully sue upon the same debt which has been adjudicated b}'- the garnishment judgment, nor for the same property thus ad- judicated, when payment or delivery have followed.^ If gued upon the same debt by the attachment debtor, the garnishee may set up the judgment and payment. If sued in the court where the judgment was rendered, it will be within judicial cognizance.^ • But it has been held that though the o-arnishee has been charged on his own disclosure, and directed to pay into court, yet in a subsequent suit against him the order of court is not conclusive that he was liable when first notified of the garnishment.'^ i-SfeeCrabb v. Jones, 3 Miles, 130; 223; Adams v. Filer, 7 Wis. 306; Leiberu. St. Louis Ass'n, 36 Mo. 382; Ross v. Pitts, 39 Ala. 606; Gunn v. Thrasher v. Buckingham, 40 Miss. Howell, 35 id. 144; Allen v. Watt, 67. 79 111. 284; Anderson v. Young, 21 2 Allen V. Watt, 79 111. 284. As to Pa. St. 443; Ladd v. Jacobs, 64 Me. relief in a court at law to protect 347; Brown v. Dudley, 33 N. H. himself from an erroneous judg- 511. ment in favor of the garnishor, see ^ Kelly v. Gibbs (Tex. Sup.), 19 Carroll v. Parkes, 57 Tenn. 269. S. W. 563. 3 Ellis V. Goodnow, 40 Vt. 237; «Hollingsworth v. Fitzgerald, 16 Webster v. Adams, 58 Me. 317; Neb. 492 {distivguissliing Schleuter Hooton V. Gamage, 11 Allen, 354. v. Raymond, 7 Neb. 281; Wilson v. ^Greenman v. Fox, 54 Ind. 267; Burney, 8 id. 39; Turpin v. Coates, Ohio & Miss. R. R. Co. v. Alvey, 43 12 id. 321, and Clark v. Foxworthy, Ind. 180; Barton v. Albright, 29 Ind. 14 id. 241); Board of Education r. 489; Schoppenhaust v. Bollman, 21 Scoville, 13 Kan. 17; Rice v. Whit- Ind. 280; Shetler v. Thomas, 16 Ind. ney, 12 Ohio St. 358. § 954.] garnishee's pleas. 645 § 954. Plea in Mr.— The garnishee who has been legal)}'' ordered to surrender his possession of the attachment de- fendant's property to the court, or to pay into court the debt he owes him, and who has complied with the orderj is acquitted of his obligation to the defendant. A\^hen he has been law- fully summoned, and has honestly disclosed his indebtedness or possession of liable property at the date of service (or at any subsequent time where that is sufficient) to a court hav- ing jurisdiction, and all things have been done pursuant to statute, and he has not onl}^ been adjudged to pay as gar- nishee but has actually paid as ordered, he may meet a sub- sequent suit by his former principal or creditor by setting up the judgment and payment in bar of the action. He has paid or delivered what the court has applied to the satisfaction of one who has been subrogated to the rights of the attachment debtor.^ That debtor has been adjudged to owe the attaching creditor, and therefore is not wronged by having his credits applied to the satisfaction of the judgment. If he afterwards seeks to make the garnishee pay again, he may be barred as just stated. This is so well settled that more upon the subject is unnecessar3^- It is of course necessary that the debt sued for be the iden- tical one that was adjudicated in the garnishment proceedings iKelloggv. Freeman, 50 Miss. 157; 123; Stockwell v. McCracken, 109 Campbell v. Nesbitt, 7 Neb. 300. Mass. 84; American Bank v. Rollins, 2 Yazoo R. Co. v. Fulton (Miss.),, 14 99 id. 313; Whipple v. Robbins, 97 So. 271; Melton v. Kansas City, etc., id. 107; Hull v. Blake, 13 id. 153; 39 Mo. App. 194; Barber v. Howd, Dole v. Boutwell, 1 id. 256; Burnap 85 Mich. 221 ; Coburn v. Currens, 1 v. Campbell, 6 Gray, 241 : Haynes v. Bush, 242; Matthews v. Houghton, Gates, 2 Head, 598; Bolton v. Pa. 11 Me. 377; Sargeant v. Andrews, 3 Co., 88 Pa. St. 261; Noble v. Oil Co., id. 199; McDaniels v. Hughes, 3 69 id. 409; Coates v. Roberts, 4 East, 367;"Stille v. Layton, 2 Harr. Rawle, 100; Lowry v. Bank, 2 W. & (Del.) 149; Farmers. Simpson, 6 Tex. S. 210: Moore v. Spackman, 12 S. & 303 ; Lieber v. Association, 36 Mo. R. 287 ; Canaday v. Detrick, 63 Ind. 382; Miner f. Rogers Coal Co., 25 Mo. 485; Louisville, etc. R. Co. v. Lake App. 78; Taylor V. Phelps, 1 Har. & (Ind. App.), 32 N. E. 590; Debs r. Gill,492;CoIeu. Flitcraft, 47Md.312; Dalton (Ind.), 34 N. E. 236; Flower Mills V. Stewart, 12 Ala. 90 ; Cook r. v. Parker, 3 Mason, 247 ; Wigwall v. Field, 3 id. 53; Chandler v. Faulk- Union, etc. Co., 37 la. 129; Barton ner, Sid. 56; Leonard v. Bank, 116 v. Smith, 7 id. 85; Holmes v. Rem- Mass. 210; Stimson v. Maiden, 109 son, 4 Johns. Ch. 460; Cochran v. id. 313; Webster v. Lowell, 2 Allen, Fitch, 1 Sand. Ch. 142. 646 FINAL JUDGMENT AGAINST GARITISHEE. [§ 955-. to render the plea sustainable.^ The payment into court, pleaded in bar, is usually made to the sheriff^ by the gar- nishee; but it may have been by his co-obligor.* It must havo been under judicial order to whom or by whom paid. It is not ordinarily under execution that the garnishee pays.^ It is immaterial whether the garnishment was in execution or otherwise; the plea of payment in either is good to bar the action. When part of the debt due the attachment defendant has been paid under order in garnishment proceedings, the gar- nishee is entitled to credit for the amount so paid against a judgment obtained against him for the whole debt by the attachment defendant.^ Though a writ of execution has been issued, the court will recall it to have the credit entered. This is on the principle that the garnishee who has honestly dis- closed to a competent court, and has obeyed its order, should not be made to pay twice.^ If he has paid to the sheriff and that officer has absconded with the money, the loss falls upon the plaintiff, who has his action on the sheriff's bond.^ If property held by him is taken and sold in execution by the sheriff at the instigation of the plaintiff, the garnishee is no longer responsible to the plaintiff.^ YII. "What Judgment is a Bar to Subsequent Action. § 955. Judgment satisfied, etc. — Only executed garnishment judgments can be interposed against suits for the same debt after the time for execution has passed. When the garnishee has not satisfied, and is no longer required to satisfy, such judgment, there is no obstacle to the subsequent suit. It has been held, though not universally, that judgment 1 Hutchinson v. Eddy, 29 Me. 91. 372; Parker v. Wilson, 61 Vt. 116; 2Rochereauu. Guidry, 24 La. Ann. Turner v. Sioux City, etc. R. Co., 19 294. Neb. 241. 3 Nash V. Brophy, 13 Met. 476. ^ Dawson, In re (N. Y.), 17 N. E. * Troyer v. Schweiser, 15 Minn. 608. When the garnishee has paid 241. See Cutler v. Baker, 2 Day, to the sheriff, there should be no or- 498. der to pay over to the plaintiff while 5 Sandburg u. Papineau, 81 111. 440. claims of intervenors are pending. See Collins v. Jennings, 42 la. 447. ^ ciapp v. Rogers, 38 N. H. 435 ;. 6 Boyd V. Insurance Co., Ill N. C. Goddard v. Hapgood, 25 Vt. 351. § 956.] WHAT JUDGMENT IS A BAR TO ACTIOX. G4T against the garnishee is a bar to a subsequent suit by the at- tachment debtor, whether there has been payment or delivery thereunder or not; but it is a bar only at a stage when the garnishee is yet liable upon the judgment though he has not satisfied it. Obviously if the principal defendant has ap- pealed the attachment case and the judgment against himself is reversed, that against the garnishee, though not appealed, would cease to be a bar to a subsequent action. The trde rule is that the garnishee may plead in bar what he has paid or is bound to pay.^ He cannot thus plead in bar against any sum due the attachment debtor in excess of what he has paid or is obliged to pa\" to another under the garnishment judg- ment,^ Xor can he so plead unless the debt paid or to be paid to another is identical with that sued upon by the attachment debtor.^ § 956. If the principal defendant is in court it is his busi- •ness to object to irregularities; and he cannot afterwards avail himself of his own laches when suing the garnishee. But under the plea of payment, the garnishee must show legal payment; the judgment he pleads must have been one that obliged him to pay. It must have been a valid judgment.^ The judgment may be impugned for fraudulent collusion be- tween the attaching creditor and the oarnishee.* It cannot be disregarded because it w^as rendered by a foreign tribunal.*^ It is no payment that can be pleaded in bar of a subsequent suit when the garnishee has merely credited the garnishor upon his books and debited the attachment debtor to the same amount after he has been charged in a garnishment ])roceeding.'^ It is not enough to bar a subsequent suit by his 1 See, on this subject, McAllister v. ^ Ohio, etc. R. R. Co. v. Alrey, 43 Brooks, 33 Me. 80 ; Sessions v. Stevens, Ind. 180. 1 Fla. 233; Brown v. Somerville, sgeward t". Heflin, 20 Vt. 144. 8 Md. 444; Cheongwo v. Jones, 3 6 Baltimore & Ohio R. R. Co. Wash. C. C. 359. May, 25 Ohio St. 347 : Morgan v. Ne- - Tarns V. Bullitt, 35 Pa. St. 308; ville, 74 Pa. St. 52; Noble v. Thomp- Baxter V. Vincent, 6 Vt. G14; Barton son Oil Co., 69 id. 409; Gunn v. r. Albright, 29 Ind. 489; Cameron u. Howell, 35 Ala. 144; Wigwall v. Stollenwerk, 6 Ala. 704; Robeson v. Union C. & M. Co., 37 la. 129; Bar- Carpenter, 7 Martin (N. S. La.), 30. row v. West, 23 Pick. 270; Meriam 3 Harmon v. Birchard, 8 Blackf. v. Rundlett, 13 id. 511. 418; Sangster v. Butt, 17 Ind. 354. 'Wetter v. Rucker, 1 Brod. & Bing. 491. CiS FINAL JUDGMENT AGAINST GARNISHEE. [§§ 957, 958. immediate creditor for the garnishee to plead the order charg- ing him, or even to plead final judgment against him in the garnishment after the main suit has been completed and the judgment against the attachment debtor executed ; there must also be a plea showing that the garnishment judgment has been executed or is still to be executed, as before remarked ; and therefore both judgments — that against the garnishee and that against the principal debtor — are necessary to consti- tute a bar. For the former is merely hypothetical, however positively it may" be written; it is dependent upon the main decree and must stand or fall with it. §957. Irregularities of judgment, etc. — If the garnishee hae disclosed candidly, obeyed the court, paid when ordered, and done his whole duty, he will be protected both while pro- ceedings are pending and afterwards.^ He is not to be held responsible for irregularities which he could not prevent, though the}^ be such as to cause the judgment to be finallv- set aside after he has paid under order.- Defects of notice have been held not to affect the judgment's protection of him when not such as to affect the jurisdiction.^ When the debtor was a ward and the garnishee his guard- ian, notice on the latter was held to give all the information to the former which the law required, so that he was pre- sumed to be coofnizant of the trustee suit, and therefore could not deny the jurisdiction as void for want of notice and could not sue the garnishee subsequent to judgment.* § 958. Payment to defendant witlwut knoirledge of notice. — Garnishees not personally served, though notices were left at 1 Work V. Brown (Neb.), 56 N. AV. 98 Pa. St. 440; McDonald v. Simcox, 1082; Lomerson v. Hoffman, 4 Zab. id. 619. See Clark v. Meixsell, 29 674; Houston v. "Walcott, 1 la. 86; Md. 231. O'Connor v. O'Connor, 2 Grant, 245 ; 3 Stout v. Woods, 79 Ind. 108 ; Reed Palmer v. Ballard, 3 Stewart, 826; v. Whitton, 78 id. 579; McAlpine v. Cowan V. Lowry, 7 Lea. 620; Bray- Sweetzer, 76 id. 78; Hume v. Con- nard v. Burpee, 27 Vt. 616; Pratt v. duitt, id. 598; Muncy v. Joest, 74 id. Cunliff, 9 Ala. 90. 409; Mavity v. Eastbridge, 67 id. 2 Wheeler u Aldrich, 13 Gray, 51 ; 211;Presler v. Turner, 57 id. 56: Morrison v. New Bedford, etc., 7 id. Smith v. Dixon, 58 la. 444. See 267; Tubb v. Madding, Minor, 129; Kirby-Carpenter Co. v. Twombley Gildersleeveu. Caraway, 19 Ala. 246; (Mich.), 59 N. W. 809. Woods V. Milford Savings Inst., 58 * Woods v. Milford Savings Insti- N. H. 184; Cottle v. Am. Screw Co., tution, 58 N. H. 184. 13 R. I. 627; Howard v. McLaughlin, § 959.] WHAT JUDGMENT IS A BAK TO ACTION. G49 their domicile, who have paid their own creditors without knowledge of the garnishments, have been held not charge- able in those proceedings. Whether payment in ignorance of the notice be made by the defendant's debtor personally or through his agents, it is deemed not voluntary in the sense in which the word is above employed. There being no design to defeat the garnishor by collusion with the attachment debtor, the garnishee paying the latter in good faith without knowledge of the summons left for him has been relieved from the garnishment.' A garnishee, to avail himself of his ignorance of a summons legally left for him, ought to make out a clear case. It is not a rule that he would exonerate himself under the circumstances by making it certain that his payment to the defendant was honest. The rule is that payment to the defendant after summons does not relieve from the garnishment.'^ § 959. Voluntary payment to attaching creditor. — Yolun- tary payment to the attaching creditor will not screen the garnishee from his debt to his own creditor.^ And it may be deemed voluntary, should he have legal ground for resisting the execution, yet fail to use it — especially if the principal debtor is absent. So, too, when he pays without a bond from the plaintiff to restore to the defendant u))on his appearance within a year and a day, when the law retains that feature of foreign attachment.* So, too, when he surrenders pr(;| erty ,to the court without order, when not served till after the re- turn day.-^ Paying when not obliged to pay is voluntary, and therefore no protection.^ Payment into court before execu- tion, under an order authorized by statute, is not voluntary.^ 1 Thome u Mattliews. 5 Cush. 544; v. Crabtree, 71 Ala. 479; Bulton v. Williams v. Kenney, 98 Mass. 143; Trader, 75 Mich. 295; Hughes v. Spooner v. Rowland, 4 Allen, 485; Monty, 24 la. 499: Toledo, etc. R. Jordan v. Jordan, 75 Me. 100. Co. v. McNulty, 34 Ind. 531 ; Bo^-den 2 Donnell v. Portland, etc. Co., 76 v. Robinson (Tex. App. ). 23 S. W. 816. Me. 33. * Myers v. Ulrich, 1 Bin. 25; Mc- 3 Sturtevant v. Robinson, 18 Pick. Phail v. Hyatt, 29 la. 137. 175; Home Mutual Ins. Co. r. Gam- 5 Idler v. Hasche, 67 Wis. 653; ble, 14 Mo. 407; Moyer v. Lobengeir, WMs. Rev. Stat., § 3716, 4 Watts, 390; Myers v. Urich, 1 Bin. 6 Yocum v. White, 36 la. 288. See 25; Grissom ik Reynolds, 1 How. Broadhurst r. Morgan (N. H.), 29 A. (Miss.) 43 ; PuUiam v. Aler, 15 Gratt. 55?. 54; Johanna;. Rufener, 33 Wis. 195; '^ Irwin v. McKechnie (Minn.), 59 Johnson v. Carry, 2 Cal. 33; Mason N. W. 987. 650 FINAL JUDGMENT AGAINST GARNISHEE. [§§ 960-962, §960. Effect of order of discharge. — xVs the discharge of the g-arnishee does not operate as a subrogation of the attach- ing creditor to the rights of the defendant, and is no adjudi- cation of his obligation to the latter, it cannot be pleaded either in bar or abatement to a suit brought by him.^ But if the answer to the interrogatories was a denial of indebted- ness in the presence of the attachment defendant, who acqui- esced, or gave his assent even tacitly, the garnishee may avail himself of the circumstance when afterwards sued for the same debt by such defendant.^ § 961. Airpeal after discliarge, etc — When garnishment has been dissolved, and the plaintiff has appealed, and the defend- ant has sued the garnishee for what was attached in the lat- ter's hands, the court will not order a stay of proceedings in such suit, to await the result of the appeal in the attachment suit; for should there be judgment, the garnishee's payment thereon would protect him from the garnishment though the previous decree dissolving it should afterwards be reversed.* A garnishee, however, is not finally discharged by fhe dissolu- tion of the garnishment, if the plaintiff appeal, but must await the ultimate result of the litigation.* Payment to the defend- ant after appeal is void as to the plaintiff.^ § 962. The garnishee, on appeal, cannot set up that he dis- closed prematurely when he had opportunit}'' to do so on the trial below and did not.® His disclosure before a justice of the peace cannot be contradicted by oral testimony on appeal as to the question of w4iat was disclosed.'' B}^ the statute of Minnesota the order disposing of the garnishment is ap- iRuff ?;. Ruflf, 85 Pa. St. 31)3; Puf- in case there should be judgment fer V. Graves, 6 Fos. 258. against the defendant. There was 2 Drennon v. Ross, 2 Colo. App. judgment for the defendant, from 181. which the plaintiff appealed. It 3 Montgomery Gas Light Co. v. was held that the garnishee was not Merrick, 61 Ala. 534 : Duncan v. discharged, but that he could not be Ware, 5 Stew. & Porter, 119. made to pay till the conversion of * Kennedy v. Tiernay, 14 R. I. 528. the assets. Delby v. Tingley, 9 Neb. Having admitted the possession of 412. notes belonging to the defendant to spuff ^.. Hutcher, 78 Ky. 146. the amount of |2,000, the garnishee ^ Burlington, etc. R. Co. v. Lum- was ordered to retain $475 of his ber Co., 18 Neb. 303. future collections thereon to meet the ^ jgabelle v. Iron Cliffs Co., 57 attaching creditor's claim and costs, Mich. 120. §§ 963, 904.] SUITS Br garnishoks and others. 651 pealable, whether the garnishee be charged^ or discharged.^ But the garnishee himself cannot appeal from a judgment charging him, made on his own acknowledgment of indebted- ness to the defendant.' "When, upon his denial, he was charged, the issue upon appeal was whether he had answered truly.^ § 963. Collateral attaclv of juihjment ayainnt (jarnisliee. — The order of court that the garnishee pa}^ into court the sum attached in his hands, or that he surrender the defendant's propert}'- which he holds, cannot be collaterally attacked,'^ even though the court may have been only a dc facto tribunal." But if the order is void for want of jurisdiction, the garnishee is not protected by the judgment and payment thereunder to the attaching creditor; he may be made to pay his debt to his own creditor (the attachment defendant) notwithstanding his prior payment to the wrong party under such jurisdiction- less judgment.^ YIII. Subsequent Suits by Garnishors and Others Against THE Garnishee. § 964. Siihsequent suit l)y the garnislior. — It has been held that the discharge of the garnishee may be pleaded in bar to an action by the garnishor for injury sustained b}'^ reason of a false and fraudulent answer resulting in the discharge.^ There are reasons, however, against such holding. The limited scope of the examination under the statutes of many states; the rule under others that the trustee must be discharged when he does not affirmatively show liability, without having his 1 Albachten v. Chicago, etc, R. 7 Louisville, etc. R. Co. v. Lake Co., 40 Minn. 378; Richter v. Trask, (Ind.), 33 N. E. 590; Debs v. Daltoii id. 379. (Ind.), 34 N. E. 230; Emery v. Royal, ^McConnellu. Rakn«ss, 41 Minn, 3. 117 Ind. 299; Newman v. Manning, 3 German Bank v. Peuser, 40 La. 89 id. 422: Matheny v. Earl, 75 id. Ann. 796. 531; Andrews v. Powell, 27 id. 303; * Buckey v. Phenice (Colo,), 35 P, Laidlaw v. Morrow, 44 Mich, 547 ; 277. Holland v. Smit, 11 Mo. App, 6; » Taylor v. Benjamin, 76 Ga, 763; Branahl u. Watson, id. 587; Rudolph Wilson V. Burney, 8 Neb. 39; Gray v. McDonald, 6 Neb. 163. V. Del. & Hud. Canal Co., 5 Abb. N, 8 Lyford v. Demerritt, 32 N, H. Cas, 131, 234. 6 Oppenheim v. Pittsburgh, etc, R, Co., 85 Ind, 472. 652 FINAL JUDGMENT AGAINST GARNISHEE. [§ 965. disclosure tested b}' traverse; the practice under the statutes precluding the investigation of complicated accounts and unliquidated obligations, suggest many circumstances under which a dishonest garnishee may wrong the garnishor by his answers, with perfect impunity so far as the attachment pro- ceedings are concerned. For every wrong there should be a remedy: and the attaching creditor ought to have his subse- quent action against the garnishee when he has no other means of redress.^ He cannot regarnish him in the case in which there has been discharge, unless the judgment be re- opened.^ If the garnishee has been ordered to pay, 3^et fails to do so, and the garnislior takes proceedings against him in execution of the judgment, it is held that he cannot garnish the debtors of the garnishee.^ § 965. Suits hy tliird i)crsons. — The garnishee cannot plead judgment and payment in bar to a suit brought by one who w^as not a party or privy to the attachment.* The reason is the same as that applicable to any personal judgment — the garnishment being alvva3's personal in its relation to the gar- nishee. The fact that it is otherwise in other relations can- not affect the plea in bar to the suit brought by one not a party to the former proceedings. Failure to claim does not estop one from action thereafter, if he has done nothing to deceive the garnishee,^ and has sued within legal time.® Discharge in one proceeding is no bar to another by a dif- ferent creditor, though the property or credit of the same defendant be the subject of the inquiry.'^ But the rule is otherwise when there has been final judgment and payment; manifestly a second attaching creditor could not then subject the garnishee to a repayment of the same debt.^ And this is true, though the first attachment and garnishment mav iLau V. Dry Goods Co. (Neb.), 56 Me. 435; Miller v. McLain, 10 Yerg. N. W. 954. 245. 2 Marsh v. Phillips, 77 Ga. 436. 5 Rutherford v. Fulton, 89 Ga. 353. 3111. Cent. R. Co. v. Weaver, 54 See Pecard v. Home, 91 Mich. 346; 111. a 19. Acts of Mich. (1885), No. 175, rela- 4 Cooper V. McClun, 16 111. 435; tive to estoppel. Lawrence v. Lane, 9 id. 354; Wilson ^ Becker v. Hulme (Kan.), 36 P. 986. V. Murphy, 45 Mo. 409 ; Dobbins v. "' Breading v. Seigworth, 29 Pa. St. Hyde, 37 id. 114; Funldiouser v. 396 ; Spruill t'. Trader, 5 Jones, 39. How., 24 id. 44; Wise v. Hilton, 4 8 Watkins v. Cason, 46 Ga. 444. § 9GG.] SUITS BY GARNISIIOKS AXD OTHERS. C53 have been irret^ular.^ Exception to the rule has been recog- nized. The maker of a promissory note, after having paid it to the creditor of the payee under an order charging him as garnishee of that creditor, was not able to bar a subsequent suit against him on the note. There had been a transfer to the first indorsee, which the garnishor had attacked for fraud. The second indorsee instituted the subsequent suit; and it was held that it could be maintained; that though the plaintiff had had notice of the garnishment proceeding, yet his rights were not thereby affected as he was not a party to the pro- ceeding.- § 966. Suit hij assignee. — Judgment and payment consti- tute no bar to a subsequent suit by an assignee against the garnishee if the latter knew of the assignment and failed to disclose it to the court, and thereafter continued to withhold the fact till final judgment and payment followed the charg- ing order.^ To cut the garnishee off from the benefit of the plea, there must have been laches on his part sufficient to amount to an estoppel. Withholding the fact in fraud, and in collusion with the attaching creditor or the defendant, would and should always deprive him of the benefit of the plea; but it is held that failure to disclose is fatal to him, though there may have been no fraud or collusion.^ If, how- ever, the assignee himself has misled the garnishee into such entanglement, the latter is entitled to relief from the injustice of subjection to second payment.^ If there is no fault on the part of the garnishee; if he has 1 Howard v. McLaughlin, 98 Pa. nishee, to wlioin the defendant had St. 440. See McDonald v. Simcox, conveyed more property than enough id. 619. to pay the plaintiff, was held liable 2 Holland v. Smit, 11 Mo. App. 6. to a personal judgment for the 3 Casey v. Davis, 100 Mass. 124; amount of the debt. Sutton v. Greentree v. Rosenstock, 61 N. Y. Hasey, 58 Wis. 556. 583; Prescott v. Hull, 17 Johns. 284; & Wentworth v. Weymouth, 11 Me. Smooth. Eslava, 23 Ala. 659; Sew- 446; McAllister u Brooks, 32 id. 80; ard V. Heflin, 20 Vt. 144; Marsh v. Wood v. Partridge, 11 Mass. 488; Davis, 24 id. 363, Davv-son v. Jones, Perkins v. Parker, 1 id. 117; Com- 2 Houston (Del.), 412. stock v. Farnham, 3 id. 96; Foster •1 Field v. McKinney, 60 Miss. 763; v. Sinkler, 4 id. 450; Dix v. Cobb, Smith V. Blatchford, 3 Ind. 184; id. 508; Jones v. Witter, 13 id. 304; Kimbrough v. Davis, 34 Ala. 583; Warren v. Copelin, 4 Met. (Mass.) Foster v. White, 9 Port. 221. A gar- 594. 654 FINAL DECREE AGAINST GARNISHEE. [§ ^(it made disclosure of the assignment at any time before he was required to pay into court, no action will lie against him by the assignee. The order charging him may have been errone- ous, but he is not to suffer for the court's fault.^ "When the maker of a note is garnished, and final judgment is rendered against him before he has had notice of the assign- ment of the note, he may plead the judgment in defense to a suit by the assignee.^ §967. Laches. — Failure by the garnishee to disclose the fact that the goods in his hands are subject to a chattel mort- gage, resulting in judgment against him in an attachment proceeding, will leave him liable to a suit by the mortgagee.' The answer should disclose the fact of the existence of the mortgage, when within his knowledge, so as to entitle him to a discharge from the garnishment. He must take the conse- quences of his own laches.* 1 Cottle V. American Screw Co., 13 R. I. 627; Canaday v. Detrick, 63 Ind. 485. 2 Covert V. Nelson, 8 Blackf . 265 ; Cornwell v. Hungate, 1 Ind. 156; Rooker v. Daniels, 5 id. 519; Shetler V. Thomas, 16 id. 223; Skoppenhast V. BoUman, 21 id. 280; Richardson V. Hickman, 22 id. 244; King v. Vance, 46 id. 246. In the last case it was held that the maker may be garnished before the note is due and that the judgment is payable when the note becomes due, overruling the case of the Junction R. R. Co. v. Cleneay, 13 Ind. 161. 3 Smith V. Ainscow, 11 Neb. 476. See Flanagan v. Cutler, 121 Mass. 96. 4 Fletcher v. Ware, 81 Mo. 524; Fretwell v. Laffoon, 77 id. 26 ; Mel- ton V. Lewis, 74 Tex. 411; Segog v. Engle, 43 Minn. 191. CHAPTER XXI \^ SUITS AGAINST THE ATTACHING OFFICER.l I. In General §§ 968-976 II. Suit on the Sheriff's Bond 977-981 III. Replevin Suit Against the Officer 982-992 I. In General. §968. Trespass. — Action lies against the officer who at- taches the debtor's property without lawful authority to do so.^ Such suit is usually for trespass; and trover lies against him for attaching property held by an assignee.' He may be sued on his bond; and that is held the rightful form in Mis- souri.'* If the wrong complained of is charged to have been done under color of official function — under a writ, however invalid — both the officer and the sureties on his official bond may be sued together.^ § 969. For injury to property. — The sheriff is liable to suit for injury done through his fault to the attachment defend- ant's property while it is in his official custody, though it may have been lawfully detained. That defendant is the injured party when such wrong is done, whether he gain the attach- ment suit or not. He is entitled to have his attached property well preserved and cared for, so that it will sell for its full value and pay as much of his debt as possible, should judg- ment go against him; and he is entitled to have it returned 1 The liability of the sheriff or * Paddock, etc. Co. v. Mason, 16 other officer for wrongfully attach- Mo. App. 320. iiig has been presented in part when SLammon v. Feusier, 111 U. S. 17; other topics have been treated. State v. Jennings, 4 Ohio St. 418, Ante, §g 290-31 1. 423; United States v. Hine, 3 Mac- ^Bentley v. White, 54 Vt. 564; Arthur, 27; Becker v. Dunham, 27 Marqueze v. Southeimer, 59 Miss. Minn. 32; Carpenter v. Dresser, 73 430; Patton v. Garrett, 37 Ark. 605 ; Me. 377. See authorities ante, § 310, Swan V. McCracken, 7 Lea, 626. and j)'>'0 and con, post, §g 978, 979. 3 Clark V. Dean, 143 Mass. 292. 656 SUITS AGAIXST ATTACHI^'G OFFICER. [§§ 970, 971. in as good condition as it was in when seized, in case the re" suit of the attachment suit should be favorable to him. If the attaching- creditor should withdraw his suit or abandon the attachment, the right of the alleged debtor to be reim- bursed by the sheriff for loss caused b\^ fault of that officer in seizing and keeping the property under the writ would be equally clear.^ The officer may sue upon the indemnity bond given to se- cure him in attaching, if he has been mulct in damages for executing the writ upon property pointed out by the attach- ing creditor. He ma}'' call the creditor as warrantor into the suit for damag'es for executing the writ under such circum- stances. This topic has already come under notice.^ § 970. For not executing ivrit. — Action lies against the offi- cer for not attaching when it is his duty to attach.^ He is responsible to the injured party for partiality in the service of writs.* He is liable for taking too little when he ma\'^ se- cure enough to cover the debt sued upon.'^ He is liable for unnecessary delay when the attacliing creditor is thereby in- jured.^ He is responsible if his return is so defective in the description of the property attached as to render the attach- ment nugatory."^ The same is true for injury caused by any wrong done by the return.^ § 971. For not Iceejiing. — The sheriff may be sued by the at- taching creditor for not exercisiiig due diligence in the keeping of attached property if he thus causes injury to the latter." Should he deliver the property to a junior attacher he would become liable to the senior. ^"^ The measure of damages is the value of the attached prop- erty, if that is less than the attaching creditors judgment; or, 1 Brown v. Carroll, 16 R. I. 604; 6 Whitney v. Butterfield, 13 Cal. Becker v. Bailies, 44 Ct. 167. 335. ^ Ante, ^% 231-2^5. 7Pond v. Baker, 55 Vt. 403, and 3 Ranlett v. Blodgett, 17 N. H. 304 ; other cases cited ante, § 320. Ball V. Badger, 6 id. 405; Marshall SHajmes v. Small, 22 Me. 14; Saw- V. Hosmer, 4 Mass. 63. yer v. Curtis, 2 Ashmead, 127. * State V. Harrington, 28 Mo. App; ^ Becker v. Bailies, 44 Ct."167, and 292; Metzner v. Graham, 57 Mo. 411 ; other cases cited ante, § 555. Howard v. Clark, 43 id. 349. i" Cordman v. Malone, 63 Ala. 570, 5 Ransom v. Halcott, 18 Barb. 56; Scarborough v, Malone, 67 id. 570. Howes V. Spicer, 23 Vt. 508. § 972.] IN GENERAL. 657 the amount of the judgment if the property was worth as much or more.^ When the officer is sued for damages for releasing attached property, he cannot defend by impeaching the judg- ment of the attaching creditor; but he may charge fraud.^ If he attached in good faith but afterwards let the property go, he may defend against a suit for damages brought by the attaching creditor by averring and proving that the propert}'' did not belong to the defendant,' He cannot relieve himself by showing that the attachment was wrong, after it has been sustained by a judgment for the plaintiff;^ or by showing that his deputy was at fault, or that the act of his deputy was done after he had ceased to be connected with the office.'^ Voidable errors of an attachment proceeding are not available by third parties in a collateral case.^ An officer, when misled by the plaintiff, is not liable to him for the difference between the amount of the judgment and the amount collected on execution.'^ In a suit against the sheriff for wrongful attachraent, if there was no fraud, and the attached property has been re- stored, exemplarj'^ damages should not be awarded, nor should he be charged with the attorney's fees and expenses of the attachment defendant.^ § 972, When a second attachment has been laid in the sheriff's hands, he cannot deliver the attached property to the defendant by direction of the first attacher without rendering himself liable in damages to the second attacher. The dis- missal of the attachment and of the suit itself by the first at- iBernheim v. Shannon (Tex.), 21 16 Pick. 556. The o?n; Jenkins u. Lemonds, 29 530. id. 294 ; Gerber v. Ackley, 37 Wis. 3 For i/ientZe; Charles r. Haskins, 43 (same title, 32 id. 233); McEl- 11 la. 329; Turner v. Killian, 12 Neb. haney v. Gilleland, 30 Ala. 183; Gov- 580 ; Holliman v. Carroll, 27 Tex. ernor v. Hancock, 2 id. 728 ; State v. 23 ; State v. Fitzpatrick, 64 Mo. 185 ; Conover, 4 Dutch. 224 ; State v. Long, Jewell V. Mills, 3 Bush, 62; Green- 8 Iredell, 415; State v. Brown, 11 id. field V. Wilson, 13 Gray, 384; Car- 141; Brown v. Mosely, 11 Smedes & mack V. Commonwealth, 5 Binney, M. 354; Peoples. Schuyler, 5 Barb. 184; Brunott v. McKee, 6 W^atts & 166 (reversed in 4 N. Y. 173); Ex S. 513 ; Mayor of New York v. Sib- parte Reed, 4 Hill, 572 (overruled in barns, 3 Abb. App. 266 ; Gumming 4 N. Y. 173). V. Brown, 43 N. Y. 514; People v. GG2 SUITS AGAINST ATTACHING OFFICER. [§ 981. the property of the defendant was not liable to suit in a state court, as a trespasser, to the persons disturbed who were not parties to the suit.^ The law stated in the Lamraon case: " A person other than the defendant named in the writ, whose property is wrongfully taken, may indeed sue the marshal, like any wrong-doer, in an action of trespass, to recover dam- ages for the wrongful taking; and neither the official char- acter of the marshal nor the writ of attachment affords him any defense to such an action," if inconsistent with the doc- trine of the Densmore case (last cited), is later, and it must govern. § 981. A mortgagee disturbed in his possession and wronged by the sheriff has his action therefor even though he has been cited, interrogated and discharged as trustee or garnishee in the case. If he has appeared and answered that he holds no goods, effects or credits of the defendant, and makes no men- tion of the existence of the mortgage — not being interro- gated respecting it — and is thereupon discharged without objection on the part of the plaintiff, he is held to be in the position of a mortgagee who has not been cited in the gar- nishment at all, and he mscy therefore maintain an action for any wrong done him by a subsequent sale of the goods and payment of the proceeds to the attaching creditor.^ Dis- charge, under such circumstances, operates as a dissolution of the attachment,^ and this is given as a reason why the mort- gagee may sue; but it has been held that if he is defaulted foi* non-appearance after notice, and the garnishment thereupon sustained, he cannot sustain such action against the sheriff.* It would seem, however, that if the interrogatories do not re- quire any disclosure respecting a mortgage, his rights as a mortgagee should not be denied because of remissness as a garnishee. 1 Densmore v. Matthews, 109 U. S. 3 Martin v. Bailey, 1 Allen, 381 ; 316. See ante, §§ 158, 159, 234, 235. Hayward v. George, 13 id. 66. i^Goulding v. Hair, 133 Mass. 78; * Flanagan v. Cutler, 121 Mass. 96. Boynton v. Warren, 99 id. 173. § 982.] EEPLEVIN SUIT AGAINST OFFICEE. 663 III. Replevin Suit Against the Officer. § 982. What court. — It is held that an action of replevin will not lie against a marshal for taking the property of a person not named in the writ of attachment on mesne process, and holding it in his official custody under color of such writ in any other court than that from which the writ was issued and in which the property is detained. Kot only such action, but any other to recover the property specifically, is held illegal if brought in any court but that which has control of iheres, for the reason that property seized by an officer acting by virtue of a court's process is to be deemed in the court's oustod3^ whether rightfully attached or not. Exception is made in favor of courts having direct supervisory control, or superior jurisdiction, over the tribunal in possession. This doc- trine, that neither replevin nor any other action to regain possession will lie in a different court from that in which the attachment writ w^as issued by the person wrongfully dispossessed, is treated by the supreme court as definitely settled.^ The doctrine is extended to cases in which wrongful seizure has been made under valid final process. Property seized in execution cannot be replevied by one who is not a party to the suit and w4io is the owner of the property levied upon as that of the defendant, unless he sue in the court which has control of the property. The same argument is used with re- spect to final as to mesne process. It is — that conflict of juris- diction would ensue should the action of replevin in a differ- ent court be allowed.^ iLammon V. Feusier, 111 U. S. 19, process, under which the marshal 20, citing Buck v. Colbath, 3 Wall, had seized and held the property i>34, 341 ; Freeman 17. Howe, 24 How. replevied, was an attachment ac- 450; Krippendorf u. Hyde, 110 U. S. cording to the state practice of 276. Massachusetts, being mesne process, 2Covell V. Heyman, 111 U. S. 176, directed, however, not against prop- distinguishing Buck V. Colbath, and erty specifically described, but com- affirming the other three cases last mandiug a levy, as in case ot fi. fa., cited. The court said, through Mr. upon the property of the defendant. Justice Matthevi's: "The case of Whether that difference is material Freeman v. Howe, 24 How. 450, was is, perhaps, the only question to be precisely like the present case in its considered, for the doctrine of that circumstances, except that there the decision is too firmly established in 664: SUITS AGAINST ATTACHING OFFICER. [§§ 983, 984. § 983. Jurisdiction confined to one court. — Mr. Justice Kel- son (approvingly quoted in the case last cited) put the rule distinctly on the ground that jurisdiction over the same prop- erty could not exist in two courts at the same time; that if a state court has it over a res in an attachment suit, a federal court cannot acquire it b}'^ action of its marshal, for the pur- poses of a general proceeding in rem j and he said, for the supreme court, that "the question as to which authority should for the time prevail" does "not depend upon the rights of the respective parties to the property seized, whether the one was [is] paramount to the other, but upon the question which juris- diction [has] first attached by the seizure and custody of the property under its process."^ § 984. The court, in the Covell case, comparing attachment and execution, say that " there is nothing in the nature, office or command of the two descriptions of process, by which, so far as the question here involved is concerned, they can be distinguished. One is mesne process and the other final ; but in the courts of the United States the attachment cannot be used, as in the practice of other jurisdictions, as means of com- pelling the appearance of the defendant, or of founding juris- diction as a proceeding in rem^ Can any differenpe be dis- covered between an ancillary attachment in a United States court and one in a state court? There is none. In both the jurisdiction is special; in both the remedy is statutory; in both, the property constituting the res must be in court or there is no jurisdiction over U'^ in neither can there be any compul- sion of the personal debtor to come into court by attaching his property; in neither can there be any " founding of juris- diction " by seizure only; in both there is personal jurisdiction of the debtor cited or appearing; but when jurisdiction of a thing or a person, or both, has been acquired by a federal court, a state court cannot divest it — and mce versa., as this case conclusively holds. En passant, it seems that the reader would be likely to notice the ohiter relative to compelling appearance, and that dissent should be interposed; but noth- this court to be longer open to ques- ^ Freeman v. Howe, supra, citing tion." A review of leading decisions Taylor v. Carryl, 20 How. 583. follows, and the conclusion is as stated in the text. §§ 985, 9SG.] EEPLEVIN SUIT AGAINST OFFICER. G65 ing further is needed here, since it has been suggested else- where that attachment as distress has fallen into disuse. Such, attachment is without statutory warrant. The doctrine of the decision did not seem to need the last sentence above quoted. § 985. Bight to liold. — It is merely ^z^asZ-jurisdiction that a court obtains b}' means of a wrongful seizure under a valid writ. It is simply the right to hold possession on the pre- sumption that the attaching officer has obeyed the writ and taken the property of the defendant.^ This presumption jus- tifies the court in resisting interference from any other court except one having supervisory powers. It is for the court thus possessed to decide whether the attachment was lawful — not for some other tribunal to do so. The profession would be misled by the decisions in the Lammon and Covell cases should it understand the supreme court to say that the jurisdiction acquired by the wrongful seizure of another's property in a suit against the defendant is such as to justify the condemnation of the property after the presumption has been removed. So soon as the court in possession is legally informed that its possession is unlawful, it is bound to restore the property to its owner. If upon evi- dence, or upon the admission of the plaintiff, or upon the correction of the officers return, the fact should appear that the property belongs to another, or that the right of posses- sion is in another, there must be an order of release. It would be unjust to the authors of the opinion in the two cases above mentioned to attribute to them the assertion that tortious attachment under a valid writ gives jurisdiction in the sense of right and power to try the cause. § 98G. Collateral attack.— Would not the owner of prop- erty condemned as another's in an attachment cause in which the owner was not a party have the undoubted right of col- lateral attack upon the judgment? Would not the absence of jurisdiction to try the cause plainly appear upon his proving that the property was his when it was held as the res in a 1 French v. Reel, 61 la. 143 : Held under which the officers justify that there is a presumption in favor emanated from a court authorized of the due execution of papers ema- to issue it, its sufficiency, etc., will nating from a public office, and upon be presumed, proof that the writ of attachment 66G SUITS AGAINST ATTACHING OFFICEK. [§ 987. suit against the attachment defendant, and subsequently sold to effectuate a judgment rendered in such suit? That he would have such right, and tliat absence of jurisdiction-to-try would thus appear, conclusively shows that the only reason "why other courts cannot replevy the res wrongfully held in the attachment case is that the quasi-right of the tribunal in possession is to determine for itself wliether the seizure was lawful, under liability of having its determination subsequently disregarded if it should proceed further in the cause without statutory authority, Mr. Justice Nelson thus understood this matter when (as quoted above) he described it as " the question as to w^hich authority should /br the time 2^'^"<^vail/ " id est^ whether the court in possession or the one seeking to replevy should decide upon the right of possession. Jurisdiction to settle this ques- tion is what the court has upon wrongful seizure as an official act under a valid writ. Thus rightly understanding the recent deliverances of the supreme court (in accord with previous ones), the profession will appreciate the utilit}'' of the doctrine, and avoid the errors that would ensue from misconstruction. §987. Owner's remedy. — Is there then no remedy for the dispossessed owner, bereft under a writ not directed against himself or his propert}^? Suit upon the bond is not always an adequate one. He may prefer the specific property to its value in damages. He may have been robbed of an heir-loom Avhich is priceless in his e^^es. His right is to get the thing back, whether it be a family relic or common merchandise easil}'^ replaced by a reinvestment of its moneyed value. How is he to get it? B}^ replevin where he can bring the action without clash of jurisdiction : in the court which has custod\^ of the thing. The supreme court has pointed out the methods by which the wronged owner can obtain restitution when the property is in a federal court.^ In a pending attachment cause he may intervene and claim his property. He may institute an ancil- lary proceeding in the case.^ He may sue upon the marshal's official bond, or sue that officer for trespass. iKrippendorf v. Hyde, 110 U. S. sm. 276. §§ 988, 989.] KEPLEVIN SUIT AGAINST OFFICEK. 667 § 988. Replevin is the most usual resort in the state courts. Conflicts of jurisdiction would occur among them should they not forbear, through comity, to intermeddle with each other. "Where there is no statutory regulation on the subject, comit}^ involves a principle which should govern courts of concurrent jurisdiction. It is law everywhere that when one court has acquired jurisdiction of a thing or a person, another of equal or inferior grade cannot divest it; nor one of superior, except as authorized by law. The real question of difficulty has been whether any jurisdiction is acquired by a wrongful seizure. The law in general terms may be thus stated when conflict of jurisdiction is out of the question: When the property of one who is not a part}'' to the suit is attached in a proceeding between the parties, he may bring action against the sheriff; and replevin is a proper remed}^^ The sheriff may defend against such a suit, brought by mortgagees, by showing that they knew of the antecedent right of the attaching creditor before thev took their morto:ao:e.- § 989. Effect of judgment in rem. — In the case first above cited, the court first inquires: " Does a judgment in rem in at- tachment, where goods belonging to a person other than the de- fendant in the attachment, and upon which there is no express prior lien in favor of the attaching creditor, have been seized by the sheriff, give the sheriff the right to hold the goods against the owner; or, in other words, convert what was be- fore a tortious possession into a lawful one?" The court found the true answer in the limited effect of such actions against property as herein repeatedl}'' set forth, and said (fol- lowing previous decisions) ^ that " the ordinary proceeding by 1 Samuel v. Agnew, 80 111. 553; Ind. 265 ; Rosenfield r. Case, 87 Mich. Griswold v. Sundback (S. D.), 57 295 ; McConnell u. Langdon, 2 Idaho, N. W. 339; Martin v. Gilbert, 119 892; Hakanson v. Brodke, 36 Neb. N. Y. 298; Heagle «. 'Wheeland, 64 42; Merrill v. Wadgewood, 25 id. 111. 423 (though not an attachment 283; Wafer v. Bank, 36 Kan. 293; suit); Cliraeru. Russell, 2 Blackf, 172; Johnson, etc. v. Railroad, 52 Mo. Daggett V. Robins, id. 415 ; Clark v. App. 407. Skinner, 20 Johns. 465; Thompson 2 Harmon t'. Clippert, 58 Mich. 377. V. Butler, 14 id. 84 ; Garner v. Camp- 3 Germain v. Steam Tug Indiana, bell, 15 id. 401; Judd v. Fox, 9 11 111. 535; Propeller Hilton r. Miller, Cowen, 259; Wells v. Baldwin, 61 62 id. 230. 668 SUITS AGAINST ATTACHING OFFICER. [§ 990. attachment, although a proceeding in rem, has no such con- clusive effect as a decree in admiralty; that a sale under it does not divest any liens of a superior degree, nor any ante- cedent liens of the same degree." And the court held that a third person owning the attached goods might recover them of the sheriff. While proceedings in rem by attachment are of limited character under nearly all the statutes, exceptions have some- times been made in authorizing the attachment of water-craft. In Missouri it was held that the condemnation and sale of a steamboat, to satisfy a lien under the water-craft law of that state enforced by attachment, gave the purchaser a title free from all other liens.^ § 990. Under a statute of Indiana authorizing all lien-hold- ers to intervene in a suit for wages, supplies, etc., against a vessel, it was held that all non-appearers were concluded by the attachment judgment against a steamboat. Though the statute was silent with respect to subsequent suits by lien- holders against a vessel condemned and sold at the suit of the first attacher, the court held that the admiralty practice was applicable; that they could not molest the pui'chaser who ac- quired under the judgment and sale, and that their onl}-- rem- edy was b}'^ personal action against their personal debtor.^ Subsequently it was held that such a claim being exclusively enforcible in admiralty as a maritime lien, the state court could not entertain such a general proceeding in rem; but that such general proceeding " for building, fitting out and constructing" a steamer is cognizable in such court. In such a case the court said: "We are not aware that such a claim can be enforced in admiralty. We understand quite the con- trary proposition to be adjudged in The People's Ferry v. Beers, 20 How. 393, and Koach v. Chapman, 22 id. 129. It does not follow because the statute has authorized a proceed- ing in rem to enforce the lien which it gives to the builder of a vessel that the suit to enforce it must be in admiralty. The jurisdiction of the federal courts cannot be thus enlarged by a state statute. It was so expressh'- held in Koach v. Chapman, 1 Steamboat Raritan v. Smith, 10 2 The Steamboat Rover v. Stiles, 5 Mo. 537. Blackford. 4S4. §§ 991, 992.] EEPLEVIX SUIT AGAINST OFFICER. 669 supra. Kor can we perceive an3'thing' in our legislation giv- ing the builder a lien which is in contravention of the consti- tution or laws of the United States.*' ^ § 991. Proceed i)}(/s in rem under state law. — The constitu- tional right of states to resort to proceedings at law of this character, such as will preclude all persons after general no- tice followed by judgment against the res, seems entirely free from doubt. It has not been delegated exclusively to the gen- eral government, though like proceedings in adrniralt}' have been thus delegated. The right of a state legislature to au- thorize such a proceeding at law was strongly asserted by the supreme court of Massachusetts through Chief Justice Shaw.- It was so held with reference to the forfeiture of things pro- ceeded against as guilty or offending. Statutes of states au- thorizing such proceedings against such property have been sustained b}'^ supreme courts of states and that of the United States.^ Attachment proceedings, being never prosecuted for for- feiture but always to enforce a lien, and usually both to create and enforce it, ought not to be of general character, with no- tice to conclude all persons and destroy unasserted liens and rights to property; and the exceptional statutes with regard to water-craft, above noticed, have properly had little fol- lowing. There is not the same justification for such statutes as there is for admiralty law under which liens are enforced by like proceedings, § 992. Sureties. — Sureties on a forthcoming bond have no action of replevin against the ofhcer for levying execution in 1 Wyatt V. Stuckley, 29 Ind. 279. Supervisors, 11 id. 136; Leon v. Gal- This case was followed in Stinton v. ceran, id. 185. . . ." Steamboat Roberts, 34 Ind. 448, and 2 Fisher v. McGirr, 1 Gray, 28. (same title) 46 Ind. 476. In the last 3 Beer Co. v. Massachusetts, 97 the court said: "It is well settled U. S. 25; Bartemeyer v. Iowa, 18 that the admiralty jurisdiction of Wall. 129; Commonwealth v. In- the United States does not extend to toxicating Liquors, 128 Mass. 72; cases where a lien is claimed by the Our House, No. 2, v. State, 4 Greene, builders of a vessel, for work done 172; Santo v. State, 2 la. 165. See and materials furnished in its con- State v. Wheeler, 25 Ct. 290 ; Com- struction. . . . The Steamboat monwealth v. Matthews, 129 Mass. Orleans v. Phoebus, 11 Pet. 175; The 485, 487. Belfast, 7 Wall. 624; Amy v. The 670 SUITS AGAINST ATTACHING OFFICEK. [§ 992. a subsequent suit after the property has been surrendered to the defendant in the attachment suit.' That is not their rem- edy. If the sureties have been fraudulently induced by the sheriff to sign a replevin bond, they will be liable thereon, but the}'^ may recover damages of the oflBcer.^ Sureties on a re- plevin bond cannot complain that the attachment bond was executed by the plaintiff's attorney when their principal has not raised the objection,^ 1 Stevenson v. Palmer, 14 Colo. 2 Craig u. Herring, 80 Ga. 709. 565; Lusk v. Ramsay, 3 Munf. 417; 3 Id. Gray v. Perkins, 12 Sm. & M, 633. CHAPTER XXV. DAIklAGES AGAINST THE PLAINTIFF FOR WRONGFUL ATTACH- MENT. I. Reconvention §§ 993-99S II. Suit After Dissolution 999-1003 III. The Bond Obligation 1003-1006 IV. Suit on the Attach^ient Bond 1007-1017 V. Exemplary Da^iages 1018-1036 VI. Recovery of Costs and Fees 1037-1035 I. Reconvention. § 993. Not generally mitliorized.— To employ the extraor- dinary remedy of attachment when the ordinary is adequate; to create a lien upon the property of a debtor to secure an un- privileged debt, by means of a false affidavit; to seize and detain unincumbered property or credits of the debtor, prior to judgment, for the purpose of execution, when the plaintiff is not entitled to judgment, is an abuse of the statutory relief which the law affords to the honest creditor. If, by such abuse, the defendant is injured, he may recover damages. As a general rule, his right of action for damages does not arise until there has been dissolution of attachment upon the plaint- iff's failure to maintain it by judgment; but there are different provisions in different states, and, in some, the defendant may- recoup or reconvene for damages in the attachment suit itself. First, then, reconvention will be here considered. §994. Reconvention is of the nature of a cross-bill; it is pleaded by the defendant in his answer to the attachment suit, in which the defendant assumes the position of plaintiff in reconvention and alleges whatever damages he has suffered, their character and amount, and prays for judgment against the attaching creditor. To such cross-action the original plaintiff may plead any appropriate defense, unless issue is, under the practice of the state, deemed to be joined b}^ the filing of the petition for attachment. The ojins is none the less upon the attaching creditor to make good the allegations C73 DAMAGES FOE WEONGFUL ATTACHMENT. [§ 995. of his petition by reason of the reconvenor's averments that the attachment was wrongfuHy sued out or wrongfully ex- ecuted, since they are at issue by the answer; but the burden is on him who claims damages to prove that he has suffered, injury by reason of the wrongful attachment. He must allege that the damages claimed have not been paid.' His allega- tions of injury are proper matters for the attaching creditor to answer by way of joining issue on the reconventional de- mand. §995. Allowed in several states. — Although the injury is dependent upon the decision in the attachment case, and can- not be known to exist till that has been rendered, j'^et busi- ness is expedited and justice more readily administered by trying both issues together, so that the court, when vacating the attachment, may award damages to the reconvenor at the same time. This is very common practice in Texas and Iowa; and is allowed in Pennsylvania, ISTebraska, Minnesota, Maryland and other states.^ There must be statutory war- rant for it.^ The whole controversy between the parties is adjudicated as one cause; the attachment is tried, and evi- dence adduced, and arguments heard, both with reference to the claim for debt and the counter-claim for damages for the alleged wrongful proceeding. Much time and labor is thus saved; for the testimony which the defendant offers to defeat the attachment is usually what he would offer to sustain a separate suit for damages for wrongful attachment. Keconvention under such circumstances is anomalous, for the declaration on the attachment bond is thus made before any liability on it has been matured. If the evidence is such that wrongful attachment has been proved and resultant in- jur}'- established, the jury gives the verdict covering both is- sues, and the court gives the reconvenor judgment on the bond when he decrees the dissolution of the attachment, and judgment for the defendant in the action against him for debt. 1 Hen eke v. Johnson, 62 la. 555. Able, 15 Kan. 584 ; Eead v. Jeflfries, 2 Hardeman v. Morgan, 48 Tex. 16 id. 534; Wagner v. Stocking, 23 103; Lowenstein v. Monroe, 55 Ta. Ohio St. 297; Phinkett u. Sauer, 101 83; Turner v. Lytle, 59 Md. 199; Pa. St. 356; Halfpenny v. Bell, 83 Raymond v. Green, 12 Neb. 215. See id. 128; Hunt v. Gilmore, 59 id. 450. Boyer v. Clark, 3 id. 161 ; Stevens v. » Atkins v. Svvope, 38 Ark. 528. §§ 996, 997.] KEcoNVENTioN. 673 § 996. By counter-claim (as the reconventional demand is styled in Iowa) both actual and exemplary damages may be passed upon on the trial of the attachment suit. The defend- ant who has averred that the proceeding against him is both wrongful and malicious, and has prayed for damages in a round sum, ma}'- be required b}^ motion to specify what he demands as actual and what for exemplary damages, and both chiiras go together to the jury.^ If thus required by motion, it is not obligatory upon the defendant to confine himself to two allegations, one for actual and the other for exemplar}^ damages, but he may itemize his demand under several heads, some tending to recovery for compensatory loss, and others for vexatious and malicious prosecution.^ Losses and expenses incurred in defending against the attach- ment proceeding, those sustained by being deprived of the use of property attached,^ by injury thereto, and depreciation of its value, give rise to compensatory.damages when the attach- ing creditor was actuated by good motives, but to exemplary damages, or smart money, when, his motives were malicious.* Therefore, when the proceeding is vexatious, injurious and Avithout probable cause from its incipiency, there is no occa- sion for the counter-claimant to specify certain items of his claim as entitling him to one species of redress and others as grounds for a different kind; but such discrimination may be of utility when an attachment justifiably sued out has been maliciousl V prosecuted by some particular act. When required by motion to distinguish between what is claimed as actual and what for exemplary damages, the defendant need onh'' specify the two sums. In a reconvention by a partner for damages suffered by hira in an attachment of the goods of his firm induced by the collusion of another partner with the at- taching creditor, he should make the colluding partner a party defendant.^ § 997. Defense. — In resisting a counter-claim, the attaching creditor, it has been held, need not establish that he had such grounds of belief in his right to attach as would reasonabl}'' 1 Dent V. Smith, 53 la. 262. 337. See Cole v. Smith, 83 la. 579; 2 Lowenstein v. Monroe, 55 la. 82. la. Code, § 2996. 5 Jamison v. Weaver, 81 la. 212. 5 Barker v. Abbott, 2 Tex. Civ. * Campbell v. Chamberlain, 10 la. App. 147. 43 074 DAMAGES FOR WRONGFUL ATTACHMENT. [§ 998. actuate a prudent man in matters of the highest moment to himself, since he would not act upon belief if there was a pos- sibility of its being erroneous, nor be so likely to discover doubts in matters of ordinary importance as in those of the highest interest involving his life or fortune. In matters of the highest moment to himself, he exercises the greatest de- gree of care and caution. The law does not require the exer- cise of this degree of prudence in the formation of a belief as to the existence of facts which are grounds for issuins: an at. tachment. It is sufficient if the attaching creditor shows that he had reasonable grounds to believe the allegations of his petition,^ especiall}^ when the evidence justifies his apprehen- sions.^ The reconvenor or counter-claimant has the burden of proof, just as though the attachment suit had been terminated and he were suing for damages in a separate action. His burden is lessened by what the attaching creditor is bound to prove as to the fact of attaching and by the record which is already before the court; but so far as establishing injury by reason of the abuse of the process and the amount of the injury, and the malicious motives of the creditor, the onus is wholly on the reconvenor, just as though he had brought a separate ac- tion to recover damages. § 998. Surety not a i)artij. — The defendant can recover on the bond, by way of reconvention, only of the principal obligor, since the surety is not a party to the attachment suit, and therefore cannot be made one to the cross-action. This is the rule in lowa;^ and it will hold good everywhere unless there is a statutory provision to the contrar}'-, so that the surety cre- ates his obligation with a view to such provision, or is legally presumed to do so. If judgment is thus obtained against the principal alone, the suret}^ ought to have his day in court in a separate action before he can be held, unless he has waived it by the terms of the bond or in some other way. His right of defense is as sacred as that of the principal. He ought not, by reason of the practice of reconvention, be placed in a 1 Carey v. Gunnison, 51 la. 202; ^Baldwin v. Mumford, 35 La. Ann. Vorse V. Phillips, 37 id. 428. 348. 3 Bunt V. Rheum, 52 la. 619. § Oi^O.J SUIT AFTER DISSOLUTION OF ATTACHMENT. 675 worse position than he would be in a bond suit brought against both obligors after the judgment vacating the attachment. Where the right of reconvening for damages in the attach- ment suit itself is authorized, it is necessarily limited by the jurisdiction of the court where that suit is brought or is pend- ing when the defendant makes his cross-demand.^ If the court is only competent to try causes in which the demand does not exceed a prescribed sum — say one thousand dollars, — and an attachment suit is brought for that amount, and the bond is twMc^ as much under statutory requirement, the defendant, though possibly damaged to the full extent of the bond, can- not reconvene for more than a thousand dollars. To get all his due, he must sue by a separate action in a different court. Reconvention for damages sustained by a w^rongful attach- ment in a former suit cannot be made in an action for goods sold ; it was held that such damages cannot be set up as a counter-claim in such action.^ II. Suit After Dissolution of Attachment. § 999. After judgment. — Reconvention for damages while the attachment suit remains pending is exceptional: the gen- eral practice is that the action for wrongful and that for ma- licious attachment do not lie till the attachment suit is at an end. It must have been abandoned, set aside, settled or de cided in favor of the defendant before he can sue for dam- ages by reason of its institution and prosecution.* Prior to this, a suit for damages would be premature. It would be so, though the defendant has gained the attachment suit, if an appeal by the plaintiff is pending. "Where, however, suit upon the bond for damages was brought while an appeal from the judgment dissolving the attachment was pending, to which suit prematurity was pleaded, the plaintiff was al- lowed to amend his petition and aver that the appeal had 1 Hardeman v. Morgan, 48 Tex. v. Tliompson, 3 Met, (Ky.) 121; 103. Smith v. Story, 4 Humph. 169; 2 Schmidt v. Bickenbach, 29 Minn. Spaulding v. Wallett, 10 La. Ann. 122. 105; Moor v. Wilienberg, 18 id. 22; 'Kramer v. Light Co., 95 N. C. Accessory Co. v. McCerran, id. 214; 277; Carver v. Shelley, 17 Kan. 472; Harger v. Spofford, 46 La. 11; Kin- Atkins V. Swope, 38 Ark. 528 ; Nolle sey v. Wallace, 36 Cal. 462. 676 DAMAGES FOK WRONGFUL ATTACHMENT. [§ 1000. been decided in tlie supreme court adversely to the appel- lant; and the amendment was sustained and judgment on the bond for actual damages awarded and confirmed.^ Had the appeal been still pending, or had a motion for a new trial, arrest of judgment, or anything affecting the finality of the dissolution of attachment, still remained undecided, prema- turity could have been properly pleaded ; it is necessary that the attachment be first vacated.- Abandonment by the at- taching creditor is vacation of attachment,^ but it will not relieve him from liability for damages.* § 1000. The rule is not universal that the attachment suit must have terminated against the plaintiff before a separate suit against him may be instituted for damages for wrongful attachment.^ A suit for malicious attachment, for exemplary damages, will lie, in some states, while the attachment suit is pending — as in Michigan.^ In Arkansas the plaintiff's claim for debt, and the defendant's for damages, may offset each other.^ In Minnesota it is necessary to the recovery of exemplary damages that the attachment be first vacated, but not for the recovery of actual damages.^ It has been insisted that the defendant should make effort to have a wrongful attachment vacated before suing for dam- ages on the attachment bond.^ But though he has made no contest of the affidavit, if he recover judgment on the merits he may sue upon the bond.^*^ He is not limited to his bond action, because the attaching creditor gave the undertaking to secure him.^^ Prematurity cannot be pleaded by the attaching creditor, 1 McDaniel v. Gardner, 34 La. Ann. ^ Popplevvell v. Hill, 55 Ark. 622. 341 ; Dickinson v. Maynard, 20 id. 66. 8 Rossiter v. Paper Co., 37 Minn. 2 State V. Williams, 48 Mo. 210 ; 296. See Reynolds v. De Geer, 13 Pixley V. Reed, 26 Minn. 80; Sloan 111. App. 113; McCracken u. Coving- V. McCracken, 7 B. J. Lee, 626. ton Bank, 4 Fed. 602 ; Stewart v. SErwin V. Com. & R. R. Bank, 12 Sonneborn, 98 U. S. 187. Rob. (La.) 227. SEckman v. Hammond, 27 Neb. 4Farrar v. Talley, 68 Tex. 349'; 611. See Rachelman u. Skinner, 46 Steinhart v. Leman, 41 La. Ann. Minn. 196. 835. 10 State v. Beldsmeier, 56 Mo. 226. 5 Tynberg v. Cohen, 76 Tex. 409. See Harper v. Keys, 43 Ind. 220 ; « Cadwell v. Corey, 91 Mich. 335 ; Keer v. Reece, 27 Kan, 469. Brand v. Hinchman, GS id. 590. See n Lawrence v. Hagerman, 56 III. Zinn V. Rice, 154 Mass. 1. 68 ; Preston v. Cooper, 1 Dill. 589. §§ 1001, 1002.] SUIT AFTER DISSOLUTION OF ATTACHMENT. GT7 ^vhen sued on the bond, if be has merely been nonsuited, or put out of court by an exception or demurrer, with right to sue again. ^ Any such disposition of an attachment, if not appealed, is a final vacation of the attachment proceeding in Avhich the bond was given; and right of action on the bond immediately arises, if any injury has been suffered by the attachment defendant. The renewal of the suit gives rise to an entirely new attachment with a new bond. § 1001. If, after an invalid attachment has been vacated, the creditor sue out a valid attachment against the same property in a suit against the same defendant, and the case be prosecuted to judgment, and the property be sold and its proceeds go to pay the defendant's debt, the latter fact will mitigate damages for the first and wrongful attachment.^ Little more than nominal damages should be awarded. The defendant should have recompense for his outlay in defend- ing the first suit, but nothing more. There may be cases, however, in which he would be entitled to much more. The mere dismissal of a suit is not always conclusive, in a suit for damages, that the attachment was wrongfully sued out.^ And judgment for the attaching creditor is not always a bar to a damage suit on the bond.* ^ 1002. Joint suit. — Several persons, who have suffered joint injury by attachment, may sue jointly,^ but only the obligee can sue upon the bond." They are not obliged to have uninjured co-obligees of the attachment bond united with them as plaintiffs.'^ If the attachment has been sustained, so far as some of the obligees are concerned, the others are not therefore precluded from suing on the bond for tlieir own in- juries when the attachment has been vacated as to themselves.^ 1 McDaniel v. Gardner, 34 La. Ann. ^ Cochrane v. Quackenbush, 29 341; Cox V. Robinson, 2 Rob. (La.) Minn. 376; Boyd v. Martin, 10 Ala. 313. See Sharpe v. Hunter, 16 Ala. 700; Masterson v. Phinizy, 56 id. 336. 765. fi Mitchell v. Chancellor, 14 W. Va. 2 Morrison v. Crawford, 7 Oreg. 22; Davis v. Commonwealth, 13 472 ; Earl r. Spooner, 3 Denio, 246. Gratt. 139; Edwards v. Turner, 6 SNockless v. Eggspieler, 47 la. Rob. (La. ) 382 ; Raspilliar u. Brown- 400; Cooper v. Hill, 3 Bush, 219; son, 7 La. 231. Pettit V. Mercer, 8 B. Mon. 51 ; Eaton 7 Alexander v. Jacoby, 23 Ohio St. V. Bartscherer, 5 Neb. 469 ; Smith v. 358. Story, 4 Humph. 169. ^M.; Dean v. Stevenson, 61 Minn. 4 Bliss V. Heasty, 01 111. 338. 175. 678 DAMAGES FOR WRONGFUL ATTACHMENT. [§§ 1003, 1004. The general practice does not require that, prior to a suit on the bond against all the obligors, there first must be judg- ment obtained against the principal in a separate action.^ III. The Bond Obligation.^ § 1003. Defendants protection. — The protection of the de- fendant against the wrongful suing out of the writ is what the bond is for. The creditor makes his own preliminary show- ing by affidavit, without cross-examination, to bring himself within the statutory authorization for the issuance of the ex- traordinary process. If he swears truly, there is such a debt and there are such existing grounds as will not only warrant the cleri<: to issue the unusual process but will render it his duty to do so. But what if the affidavit is false? "What if the debt is either non-existent or not such as the legislator con- templated when authorizing attachment for a designated char- acter of obligation? What if the defendant is not a non-resi- dent, not an absconder, not a concealer or fraudulent disposer of property, though alleged in the affidavit to be one of these? § 1004. It is a general though not a universal statutory rule that the clerk shall not issue the writ, notwithstanding the affidavit that the debt and the grounds are such as to render the attachment process permissible under the law, unless the creditor has given a bond, with surety, conditioned that he will " pay the defendant all such damages as he may sustain from, the wrongful suing out of the writ', " or, " all damages which he may sustain if the order is wrongfully obtained ;'''' or, "all damages that he may sustain and all costs that may be incurred by him in consequence of suing out the attach- ment;'''^ or, "all damages that ma}' be sustained by reason of the attachment," etc.^ 1 Bruce v. Coleman, 1 Handy, 515 ; ^ Benedict v. Bray, 2 Cal. 251 ; Churchill v. Abrahaiii, 22 111. 455; Thompson v. Arthur, Dudley (Ga.), Jennings v. Joiner, 1 Cold well, 695; 253; Cousins v. Brashier, 1 Blackf. Dickinson v. McGraw, 4 Randolph, 85; Starr v. Lyon, 5 Ct. 538; Fordr. 158; Hcrdon v. Forney, 4 Ala. 243. Woodward, 10 Miss. 260; Stevenson Contra: Sledge v. Lee, 19 Ga. 411; v. Robbins, 5 Mo. 18; State Bank v. Sterling City Mining Co. erceuf age as damages. Du- locky. Belcher, 24 Barb. 199 ; Camp- pree v. Woodruff (Tex.), 19 S. W. bell V. Chamberlain, 10 la. 337; 469. Loss of credit : Mayer v. Fagan, Lowenstein v. Monroe, 55 id. 82; 34 Neb. 184. Oberne v. Gaylord, 13 Bradw. 30; *> Northampton Bank v. Wylie, 52 Braunsdorf v. Fellner, 76 Wis. 1; Hun, 146; Jacobus u. Bank, 35 Fed. §§ 1011, 101 2.J SUIT ON ATTACUMEXT BOND. 685 Nominal damages were awarded to a shareholder for the provisional seizure of property of the corporation in which his stock was held.^ Depreciation of corporation stock, Avhile held under attachment, was not allowed in the estimate of damage, because the owner had made no effort to have it sold daring that time.- § 1011. Measure ivhen land is attached. — On proof that the gale of land was prevented by attachment and that the land deteriorated in price, the usual rule as to deterioration as the measure of damages was applied.^ The difference between land and chattels is that the attachment of the former, being without disturbance of the defendant's use of it, is not pre- sumed to cause him- damage. Damage must be proved when land is attached; it is not presumed.'* The actual loss to the attachment defendant by the seizure and detention of his property — not the rental in open mar- ket — IS the measure of damage he sustains.^ Only nominal damages are recoverable for the wrongful attachment of land when no injury is done, as the possession is not disturbed.^ § 1012. JEi'idence. — Evidence of the publicity given to the proceedings is admissible in a suit for damages for wrongful attachment.^ It may be shown that the attachment com- 395 ; State v. Beldsmeier, 65 Mo. 226. App. 559. See Barker v. Abbott, 2 Interest may be included in esti- id. 147. mating damages, tliough probable * Trawick v. Martin, 79 Tex. 460. profits in due course of merchandis- 5 Foster v. Sweeny, 14 S. & R. 386 ; ing would not be. Blass v. Lee, 55 Hurd v. Barnhart, 53 Cal. 97 ; Eeid- Ark. 329: Blanc v. Tharp, 83 la. 665. her v. Berger, 8 B. Mon. 160; Wie- Injury to goods ground for damages, land v. Oberne, 20 111. App. 118; tliough the attachment was lawful. Fleming i\ Bailey, 44 Miss. 132; Lobenstein v. Hymson, 90 Tenn. Meshke v. Van Doren, 16 Wis. 323. 606. 6Girard v. Moore (Tex. Civ. App.), 1 Scott V. Moll, 45 La. Ann. — . 24 S. W. 652 ; Imperial Roller Milling 2 Sargent v. Fuller, 132 Pa. St. 127. Co. v. First N. Bank (Tex. Civ. App.), The attachment of stock in third 27 S. W. 49. hands by garnishment, which pre- ' Brand v. Hinchman, 68 Mich, vented its owner from borrowing 590. The motives of the attachment money on it, was held to afford defendant in leaving the state were ground for nothing more than nom- not allowed to be proved in his suit jnal damages. Girard v. Moore (Tex. for damages for wrongful attach- App.), 24 S. W. 652, and 26 id. 495. ment on the charge of absconding. 3 Wetsell V. Tillman, 3 Tex. Civ. Hamer v. First N. Bank (Utah), 33 P. 941. 686 DAMAGES FOR WRONGFUL ATTACHMENT. [§§ 1013, 1014. plained of was followed by other attachments against the complainant's property; but whether they followed as a con- sequence is a question for the jury.^ A newspaper article, not caused by the attaching creditor to damage the defend- ant, is not admissible against him when he is sued for dam- ages on account of the attachment.- An affidavit for a writ of replevin is not admissible to prove that the purchaser (plaintiff in the damage suit) had lost nothing by the conver- sion of some of the goods.^ § 1013. The burden of proof to show the falsity of the at- taching creditor's aflBdavit is on the claimant of damages.* The attachment is proven to be wrongful when shown to be without statutory grounds;^ and the complainant should aver that it was unauthorized, in his petition for damages.^ The particular ground on which the writ was issued and the levy made must have been unauthorized and so alleged by the claimant of damages. There may have been good grounds on which the property might have been lawfully attached, but that will not avail the wrong-doer when sued for damages."^ All the grounds alleged in the affidavit may have been au- thorized and all true; yet, if the attachmg creditor had no cause of action; if no debt was owing to him by the defend- ant, he incurred liability to actual damages by attaching, when injurj' is proved to have resulted.^ When only nominal damages are recoverable, actual injury need not be proved.^ § 1014. In a suit on the bond the sheriff's return proves w^hat was seized, but it may be proved otherwise that he seized too much or more than he has returned.^" 1 Grimes v. Bowerman, 93 Mich. 7 Lobenstein v. Hymson, 90 Tenn. 258. 606 ; Vurpillat v. Zehner, 2 Ind. App. 2Tynberg v. Colien (Tex. Civ. 397. App.), 24 S. W. 314. 8 McLane v. McTighe, 87 Ala. 411 ; 3 Walker v. Collins, 59 Fed. 70. City National Bank v. Jeffries, 73 id. 4 Calhoun t'. Hannon, 87 Ala. 277. 183; Durr v. Jackson, 59 id. 203; 5 Id. ; Boxby v. Segrest, 85 Ala. Lockhart v. Woods, 38 id. 63 ; Mont- 183; City National Bank v. Jeffries, gomery Co. v. Thomas, 20 id. 473. 73 id. 183; Marx v. Strauss, 93 id. ^ See Smith v. Johnson, 95 Ala. 453 ; Farrar v. Talley, 68 Tex. 349 ; 482. Mayer v. Walker, 82 id. 222. lo Jefferson Bank v. Eborn, 84 Ala. « Sprague v. Parsons, 13 Daly, 553. 529 ; Hensley v. Rose, 76 id. 873. See MacFarland v. Lehman, 38 La. Ann. 351. § lUl5.] SUIT ON ATTACHMENT BOND. 6S7 A suit on the bond cannot be defended on evidence that the attachment defendant was insolvent,^ or that good grounds existed though not alleged;^ or that the affidavit to belief was sincere; ^ or that the attached propert}'^ did not belong to the defendant.'* But, by way of mitigating damages, or to meet the charge of notice, the attaching creditor has been al- lowed to prove that he knew of an attachment that had been sued out against the debtor by another, creditor prior to his own action.'^ On a question whether the goods have brought a fair price at an attachment sale, clerks and auctioneers have been al- lowed to testify as to the value.® When the attaching creditor is sued in trespass for the fraudulent sale of goods, the indemnity bond given by him to the sheriff to induce the sale may be given in evidence against him." He cannot shift the responsibility to the shoulders of other trespassers.^ ^ 1015. Who may sue. — To have the right to sue for dam- ages the party plaintiff must have been damaged in some way in his property interests by the attachment of which he com- plains. Whether he was a party to the attachment suit or not, he must have been pecuniarily injured before he can ask to have his injuries repaired. Questions of right to recover often turn upon the complainant's title to property or its pos- session.^ A mortgagee dispossessed can recover only nominal dam- ages when the property is not sold.'** A mortgagor may sue for damages for the wrongful attachment of his mortgaged 1 Kaufman v. Armstrong, 74 Tex. ^See Baldwin r. Walker, 94 Ala. 65. But his insolvency may be 514; Hanssler r. Bank, 23 Mo. App. shown in mitigation of damages. 282; Taylor v. Hines, 31 id. 622; Mayfield v. Cotton, 21 Tex. 1. Porter v. Knight, 63 la. 365. 2 Blum V. Strong, 71 Tex. 321; lo Schwartz u. Davis (la.), 57 N. W, Woods V. Huffman, 64 id. 98. 849 ; Williams v. Brown, 76 la. 643. 3 Kennedy v. Meacham, 18 Fed. The act which requires an attaching 312; Bear v. Marx, 63 Tex. 298. creditor to pay the mortgage or de- •* Brandon v. Allen, 28 La. Ann. 60. posit the amount of it with the clerk 5 Goldsmith v. Picard, 27 Ala. 142; of the court is to protect the mort- Yarborough v. Hudson, 19 id. 653. gagee only. Wilson v. Felthouse 6 Marx V. Strauss, 93 Ala. 453. (la.), 57 N. W. 878. 7 Skipper r. Reeves, 93 Ala. 332. 8 French v. Duncan, 47 111. App. 113. 688 DAMAGES FOR WRONGFUL ATTACHMENT. [§§ 1016, 1017. property, though it be subsequently conve3^ed to the mort- gagee.^ § 1016. Consent to attachment. — If the defendant consents to having his property attached he cannot complain of it afterwards. The consent of a member of a partnership has, been taken as that of his firm when not collusively given.^ But if one partner was in collusion with a creditor suing the partnership, another partner may sue for damages especially appertaining to himself.^ If there was no collusion, one mem- ber of a firm may sue in behalf of it, though another member refuses to join in the suit, it is said."* § 1017. Wrong grounds. — The plaintiflf obligates himself to pay, not simpl\^ in case damages result because of his false affidavit as to the debt but also as to the grounds for the extraordinary remedy; and therefore, though the debt be due and owing as alleged, he is liable if the writ was wrongfully issued because of the false statement as to the defendant's non-residence, absconding, or fraudulent disposition of prop- ert3^^ His animus cannot be considered in his favor when the obligation is positive; he may have sworn in good faith yet been mistaken as to the circumstances, both with regard to the debt and the ground, or either, and yet render himself liable by his bond to damages.^ But if swearing to his belief is all that is required for the issue of the writ, and the bond is to pay damages caused by a wrongful attachment, he is not iLoomis V. Stuart (Tex. Civ. App.), C.) 495; Drummond v. Stuart, 8 la. 24 S. AV. 1078. 341; Kirksey v. Jones, 7 Ala. 622; 2 Barker v. Abbott, 2 Tex. Civ. Watson v. Kennedy, 8 La. Ann. 280, App. 147; Goodbarv. Bank, 78 Tex. 6 Hayden v. Sample, 10 Mo. 215; 461; Martin v. Perrill, 77 id. 199; Churchill v. Abraham, 22 111. 455; Baines v. Ullman, 71 id. 539; Tucker r. Adams, 52 Ala. 254; Met- Schneider v. Sansom, 62 id. 201; calf v. Young, 43 id. 643; Lockhart Blum V. Scram, 58 id. 524. But not v. Woods, 38 id. 681 ; Alexander v. if there was collusion. Shoe Co. r. Hutchinson, 9 id. 825; Gaddis v. Harris, 82 Tex. 273; Bateman v. Lord, 10 la. 141; Mitchell v. Mat- Ramsey, 74 id. 589. tingly, 1 Met. (Ky.) 237. But in a 3 Grimes v. Bowerman, 92 Mich, suit for malicious attachment the 258. animus becomes important; intent ^ Barker v. Abbott, supra. to injure must be proved to recover 5 Foster v. Sweeny, 14 Serg. & R. exemplary damages. Nordhaus v. 387; Sanders v. Hughes, 2 Brev. (S. Paterson, 54 la. 68. §§ lOlS, 1019.] EXEMPLARY DAMAGES. 689 always held obligated by the bond because the facts proved to be different from what he honestly believed, if he had good reason to believe them.^ Y. Exemplary Damages. § 1018. Probal)le cause. — Attaching wantonly without prob- able cause is legally deemed malicious, and a common-law action for damages will lie. Such action is not limited by the sum nominated in the attachment bond, but the injured defendant may claim, and the jury may award, such exem- plary damages as may be proper to remunerate him for injury to himself and his property and punish the attaching creditor for his wanton abuse of the extraordinary remedy to ■which he has resorted for the recovery of his ordinarj'^ debt. Several creditors, plaintiffs respectively in several consolidated attachment cases, are liable together for damages for the tortious conversion of the defendant's property.^ The plaintiff must aver that the attachment suit was exe- cuted;^ that the attaching creditor was responsible for the execution;* that the ground alleged in his affidavit was false;* and that he had no probable cause for his action.^ Probable cause does not render the creditor free from lia- bility for wrongful attachment as to actual damages, though it does as to exemplary.^ . § 1019. !Malice and want of probable cause must unite to ■warrant exemplary damages.^ If the former is wanting, such damages should not be awarded;^ but it has been inferred 1 Burkhart v. Jennings, 2 W. Va. 5 xiller r. Shearer, 20 Ala. 527. 242; Vorse v. Phillips, 37 la. 428; eHalliday r. Sterling, 62 Mo. 321; Dent V. Smith, 53 id. 262 {see Bur- Young v. Gregorie, 3 Call, 446 ; Mc- ton V. Knapp, 14 id. 196); Winches- CuUough v. Grishobber, 4 W. & S. ter V. Cox, 4 G. Greene, 121 ; Steven- 201. son V. Robbins, 5 Mo. 18. Contra: ' Yarborough v. Weaver (Tex. Civ. Alexander v. Hutchinson, 9 Ala. App.), 25 S. W. 468; Carothers v. 825; Temple v. Cochran, 13 Mo. 116; Mcllhenny, 63 Tex. 140; Culbertson Dideru. Courtney, 7 id. 500; Che- r. Cabeen, 29 id. 253. nault V. Chapron, 5 id. 438. ** Grant v. Reinhart, 33 Mo. App. 2 Conrad v. Fisher, 37 Mo. App. 74; Joy v. Barnhartt, 10 Mo. 151; 352, Mayer v. Duke, 72 Tex. 445; Benson 3Mott V. Smith, 2 Cr. (C. C.) 33. v. McCoy. 36 Ala. 710; McKellar r. See Ryall v. Marx, 50 Ala. 31. Coucli, 34 id. 336. 4 Marshall v. Betner, 17 Ala. 833. 9 Turner r. Hardin, 80 la. 691; 44 690 DAMAGES FOK WEOXGFUL ATTACHMENT. [§ 1020. when there was no probable canse.^ Circumstances attending the attachment proceedings may aid in determining both requisites* If the writ was sued out in consequence of the debtor's threats and false statements, that is a circumstance tending to show probable cause and good motive;- but infer- ence would be against a creditor under man\' circumstances,* to be weighed by the jury.* The debtor's offer to arbitrate or compromise may be proved as a circumstance tending to show want of probable cause on the part of the creditor.'^ In a suit for malicious attachment, the judgment rendered in the attachment suit for the debt claimed cannot be re- investio-ated:^ nor can the attachment be assailed if it was laid in strict conformity to law." But it may be shown to have been malicious, and such showing is necessary to sustain an action on the case at commoojaw.* § 1020. Malice inferred from circumstances.'- — Whether the damages to be awarded are actual or exemplarj'^ depends upon the question of malice; and this is often referable to the circumstances of the case. If the attaching creditor acts under legal advice, that is often considered indicative of good intent limiting his liability to actual damages when the pro- ceeding is found wrongful.^ This circumstance in his favor is not always conclusive, however;'*' for all suits brought by attorne3's may be presumed to be instituted under their ad- vice, and it would not do to attribute good motives to plaintiffs by reason of that fact, if there are other circumstances tend- ing to show a malicious spirit. Both client and counsel may be actuated by such spirit and both be amenable to exemplary Heidenheimer v. Sides, 67 Tex. 32; ^ Lewis v. Taylor (Tex.), 24 S. W. Schneider v. Ferguson, 77 id. 572; 92. Conly V. Wood (Tex.), 12 S. W. 615. 6 jones v. Kirksey, 10 Ala. 839. 1 Parks V. Young, 75 Tex. 278 ; ■* Rogers v. Pitman, 2 Jones, 56. Wright V. Waddell (la.), 56 N. W. 8 Benson v. McCoy, supra. 650; Hurlbut v. Hardenbrook (la.), SMcDanielr. Gardner, 34La. Ann. 52 N. W. 512. 341 ; Dickinson v. Maynard, 20 id. 2Grant r. Reinhart, S2(jjra. 66; Teal v. Lyons, 30 La. Ann., 3 See facts in cases: McFadden r. Part I, 1140; Raver v. Webster, 3 Whitney, 51 N. J. L. 391; Baldwin la. 502; Roach v. Brannon, 57 Miss. V. Walker, 91 Ala. 428; Ellis v. Bon- 490; Alexander v. Harrison, 38 Mo. ner, 80 Tex. 198; Miles r. Butler, 16 258. S. W. 108. i^'Ravenga r. Mackintosh, 2 Barn. * Jones V. Fruin, 20 Xeb. 76. & Cressw. 693. § 1021.] EXEMPLARY DAMAGES. 691 damages.^ The principal is not to be deemed to have been malicious because his agent or attorney is proved to have been so.^ But he is not relieved from the charge of malice by showing that an agent made the affidavit.' The spirit by which the attaching creditor was actuated in suing out his writ may be inferred, in a great measure, from what is proved as to his honest belief of his right of action when he instituted it. If he had not only an honest but a reasonable opinion that, under the existing facts as he understood them, he was entitled to the relief which he sought, he cannot be held to have been actuated by malice, though the attachment itself may have been illegal, unjustifiable and injurious,^ but other- Avise if he knew his grounds to be false.'^ Malice has been held not necessarily inferable from want of probable cause.® § 1021. Burden of proof. — The burden of proof is on him who claims exemplary damages to show that the attachment suit was instigated or instituted by the defendant, that it was fully executed on the complainant's property, that it was without probable cause, that it has been terminated without judgment justifying the attachment, and that the complain- ant has been injured:^ thereupon, it devolves on the defend- 1 Empire Mills v. Lovell, 77 la. 100 ; v. Bonner, 80 Tex. 198. and Christian Wood V. Weir, 5 B. Men. 544. v. Seeligson, 63 id. 405.) 2 Rankin v. Bell, 88 Tex. 28. Com- 5 Byersdorf v. Sump, 39 Minn. 495 ; pa?"e Jones r. Lamon (Ga.), 18 S. E. Hurlbut v. Hardenbrook (la.), 53 423. N. W. 510; Willis v. McNatt, 75 Tex. 3 Ala. Land Co. v. Reed (Ala.), 10 69. So. 238. 6 Willis v. McNeill, 57 Tex. 465. ^Spengler v. Davy, 15 Gratt. 381; "? Maskell v. Barker, 99 Cal. 642; Barrett v. Spaids, 70 111. 408 ; Alex- Wilcox v, McKenzie, 75 Ga. 73 : Col- ander V. Harrison, 38 Mo. 258 ; Will- lins v. Shannon, 67 Wis. 441 ; Kauff- iams V. Hunter, 3 Hawks (N. C), man v. Babcock, 67 Tex. 241; Tyn- 545; Smith u. Story, 4 Humph. 169; berg v. Cohen, 67 id. 220; Walker Campbell v. Hopkins, 87 Ala. 179; v. Collins, 50 Fed. 787; Wood v. Donnell v. Jones, 13 id. 490; White Weir, 5 B. Mon. 544; Pixley i\ Reed, ■«/. VVyley, 17 id. 167 ; Wood v. Bar- 26 Minn. 80 ; Sloan v. McCracken, 7 ker, 37 id. 60; McCullough v. Grish- B. J. Lea, 626; Bump v. Betts, 19 bobber, 4 Watts & Serg. 201 ; Nord- Wend. 421 ; Dfent v. Smith, 53 la. liaus t\ Peterson Brothers, 54 la. 68; 150; Feazle v. Simpson, 2 111. 30; Dent V. Smith. 53 id. 262; Vorse v. Walser v. Thies, 56 Mo. 89; O'Grady Phillips, 37 id. 428; Kennedy v. v. Julian, 34 Ala. 88; Lawrence v. Meacham, 18 Fed. 312; Leyser v. Hagerman, 56 111. 68; Ives v. Bar- Field (N. M.), 23 P. 173. (See Ellis tholomew, 9 Ct. 309; Tomlinson v. 692 DAMAGES FOE WRONGFUL ATTACHMENT. [§ 1022. ant to prove good motives by establishing facts tending to that end, if he would thus avoid the consequences of his wrongful attachment.^ In defending against a suit for exemplary or vindictive dam- ages, the defendant may prove that there was debt due him, if that has not been decided adversely to him in the attach- ment suit — if he was merely nonsuited therein ; he may show anything which will establish a lawful animus on his part, since malice is necessary to his liability.- The fact that his attachment was dissolved does not estop him from showing that it was not wrongful. The dissolution is ov\^' prima facie evidence that the attachment was wrong.* §1022. What is maliccf — -"The malice necessary to be shown ... is not necessarily revenge or other base and malignant passion. Whatever is done wilfully and purposely, if it be at the same time wrong and unlawful, and that known to the party, is in legal contemplation malicious. That which is done contrary to one's own conviction of duty, or with a wilful disregard of the rights of others, whether it be to com- pass some unlawful end, or some lawful end by unlawful means, or ... to do a wrong and unlawful act knowing it to be such, constitutes legal malice."^ "Attaching mali- ciously " is equivalent to " attaching wantonly," and was sus- tained in a declaration when the statute employed the latter phrase.^ Warner, 9 Ohio, 103 ; Williams v. - Lindsay v. Larned, 17 Mass. *190, Hunter, 3 Hawks, 515; Sledge v. *197 ; Bond n Ward, 7 id. *130. McLaren, 29 Ga. 64 ; Wiley v. Trai- 3 sioan v. Langert, 6 Wash. 26. wick, 14 Tex. 662. See Dray Co. v. Hoefer, 2 id. 45. 1 Carey v. Gunnison, 51 la. 202; 4 wills u Noyes, 12 Pick. 324,328; Kirkseyy. Jones, 7 Ala. 622; Don- Stone v. Swift. 4 id. 393; Reed v. nell V. Jones, 13 id. 490; Melton v. Samuels, 22 Tex. 114; McLaughlin Troutman, 15 id. 535; White v. r, Davis, 14 Kan. 168; United States Wyley, 17 id. 167; Sackett v. Mc- i\ Ruggles, 5 Mason, 192; liOoker v. Cord, 33 id. 851; Wood v. Barker, 37 Halcomb, 4 Bingli. 190; Harman v. id. 60; Lockhart v. Woods, 38 id. Tappenden, 1 East, 567, note. See 631; Spengler v. Davy, 70 111. 408; Crofford v. Vasser, 95 Ala. 548, as to Morrison v. Crawford, 7 Oreg. 472; the necessary allegations. Jacobs V. Crum, 62 Tex. 401 ; Hagen 5 Stadder v. Jacobs, 70 Miss. 429. V. Campbell, 78 Wis. 572; Paxton v. Malice should be averred. Doll v. Moravek, 31 Neb. 305; Grimes tJ. Cooper, 9 Lea, 576. Bowerman, 92 Mich. 258. §§ 1023, 1024.J EXEMPLARY DAMAGES. G93 § 1023. Effect of judgment. — l^either party can reopen what was settled by the attachment suit. The judgment therein is res judicata as to them when the proceedings were inter partes. The truth of the attaching creditor's affidavit cannot be questioned after it has been traversed and sus- tained. The final judgment is conclusive between the par- ties as to whether the attachment w^as rightfuU}' or wrongfully sued out, and therefore it cannot be collaterally assailed by either the plaintiff or the defendant in the subsequent damage suit. If held rightfully sued out and prosecuted, it is a bar to any action for exemplary damages; but if there has been judgment for the attachment debtor, that merely establishes that the attachment was wrongful; it leaves open the ques- tion whether it was malicious, and therefore suit will lie for exemplary damages. If the attachment was absolutely void, it is said that proof of mal-ice or want of probable cause is not necessary in a suit for damages.^ Judgment against the attaching creditor, if accompanied by a judicial entry made contradictorily between the parties, finding that there was probable cause for the creditor's suing out the attachment, will operate as a perfect bar to a subse- quent action for exemplary damages wherever such practice authorizedly prevails. § 1024. Nonsuit, discontinuance, settlement by compro- mise, or any disposition of the attachment suit not expressly or impliedly by contract precluding the alleged debtor from his action for damages, constitutes no bar; nothing is thus finall}^ adjudicated, and therefore there is nothing to be urged, by reason of any such disposal of the cause, as a reason why an injured debtor should not be heard. It must be noted that only what is adjudicated finally be- tween the parties is a bar to the action for excmplarv damages : hence, even a judgment in favor of the attaching creditor would be no bar to an action against him for libel committed by written and published charges against the debtor's char- acter and reputation, when such charges are wanton, unneces- sary, and no basis upon which the judgment sustaining the attachment is rendered ; when the court, in giving reasons for 1 Spiague V. Parsons, 14 Abb. New Cases, 320. GDi DAMAGES FOR WRONGFUL ATTACHMENT. [§§ 1025, 1026. judgment, repudiates such charges as unproved, and places the decree upon other grounds. For instance, if the attach- ing creditor should charge that his alleged debtor is gailty of not onlji' legal but moral fraud, and fail to sustain that allega- tion, but should gain his cause simply on the facts of indebt- edness and non-residence of the debtor, the judgment would be no bar to a subsequent suit against him for exemplary damage for such wanton, false, slanderous, malicious and wholly unnecessary assault upon character. § 1025. Judf/ment in rem. — When not i /iter partes, the judg- ment in the attachment suit may be collaterally attacked by the owner of the condemned res, except with reference to the res itself. As, in such suit, there can be no personal judg- ment ag-ainst the merely nominal defendant, he is not es- topped from investigating charges made against himself when they were void of bearing against the property attached. If, being notified by publication, he failed to respond, and his at- tached propert\7^ was condemned to pay his debt, upon proof of the indebtedness and of his fraudulent disposition of prop- erty, his absconding to avoid creditors, or the like, he cannot collaterally attack the judgment ; for a decree i?i rem. is res judicata as to him; and it would be so against all the world in a proceeding to fix the status of forfeited property in which all are notified. But the attachment debtor is not "in court by his property," and therefore the judgment is a nullity so far as it g-oes bevond the res of the action, and all the excess may be collaterally attacked. When the judgment is against both the debtor and his at- tached property, that is, when both are in court and the de- cree is against him with privilege upon the thing attached, and when the creditor's allegations and prosecution of his cause have been sustained by the court, the decree is res judi- cata, and a complete bar to any subsequent action either for actual or exemplary damages. § 1026. Injury j'rom (jaruisliment. — If the damages were caused by garnishment, in a suit in which there was also direct attachment, the question of malice is wholly relative to the garnishment.^ If there are two attachments successfully sued 1 Biering v. First N. Bank, 69 Tex. 599. §§ 1027, 1028.] RECOVERY OF COSTS, FEES, EXPENSES, ETC. 095 out by one plaintiff — the second to take the place of the first which has been seen to be faulty — there is no room for a damage suit against him for wrongful attachment if the sec- ond proceeding is right.' Of course he ought to pay the costs of the first attempt. A second levy, made by another cred- itor, does not save the first if wrongful.- The first attacher may be liable for the whole damages,' or both may be jointly liable as trespassers.* The attaching creditor may make him- self liable to the garnishee.-^ yi. Kecovery of Costs, Fees, Expenses, etc. § 1027. Covered l)ij the l)ond. — The bond, as ordinarily writ- ten, binds the obligor to make good, not only the loss and in- jury done to property, but other pecuniary losses in the way of expenditure when they are traceable to the issuance of the writ, including costs of court.** The plaintiff in a suit on the bond must allege in his complaint the amount of attorney's fees and of expenses which he has paid in defending the at- tachment suit; for these are special damages which cannot be proved unless alleged; this is the rule in Alabama.' Costs raav be understood as included in the hvpothetical oblioation assumed by the plaintiff in the bond. The condition to pay damages and costs includes costs of appeal. § 102S. Counsel fees. — Counsel fees for the defense of the attachment suit and of injunction suits under similar condi- tions have frequently been considered in estimating damages as embraced under the obligation of the bond.* If such fees 1 Baines r. Ullman, 71 Tex. 529. nail v. McAfee, 3 Met. (Ky.) 34; '-' Blum t'. Stein, 68 Tex. 608. Nockles v. E^gspieler, 53 la. 730; 3 Stix u. Keith, 85 Ala. 465. Bennett v. Brown, 20 N. Y. 99; * Leeser v. Boekhoff, 33 Mo. App. Campbell v. Chamberlain, 10 la. 337. 223. 7 Ross V. Malone, 97 Ala. 529; 5 Focke V. Blum, 82 Tex. 436. Boggan v. Bennett (Ala.), 14 So. 742 ; •^ Lowenstein i\ Monroe, 55 la. 82; Railroad Co. r\ Tapia, 94 Ala. 226. Dunning v. Humphi-ey, 24 Wend. ^ Cockles v. Eggspieler, 53 la. 730: 31; Schuyler v. Sylvester, 28 N. J. Weller r. Hawes, 49 id. 45; Hayden L. 487; State v. McKeon, 25 Mo. %'>. Sample, 10 Mo. 215; Raymonds. App. 667 ; Hayden ^^ Sample, 10 Mo. Green, 12 Neb, 215; 41 Am. Rep. 215 ; Kelly u. Beauchamp, 59 id. 178 ; 763; Wilson v. Root, 43 Ind. 486; Winsorv. Orcutt, 11 Paige. 578; Hell- Littlejohn v. Wilcox, 2 La. Ann. man v. Fowler, 24 Ark. 235; Trap- 620; Jones v. Doles, 3 id. 588; Mc- 696 DAilAGES FOR WKONaFUL ATTACHMENT. [§ 1029. are taxed with the costs, they are as clearly recoverable from the oblicor as the bills of the clerk and sheriff. But neither the former nor the latter are taxable or recoverable when they are overcharged. It is only legal costs which the obligor is bound for. So far as court charges are concerned, they are usually embraced in the judgment, -so that if the attachment is dissolved they are collected of the plaintitf by the officers, and there is no contest to follow concerning them between the parties litigant. But if the defendant has paid them and after- wards seeks to recover them of the plaintitf, he can only re- cover legitimate costs. It does not matter that he has paid them and that he exhibits receipts therefor: he should have contested the illesfal charges. It does not even matter if the illegal costs have been taxed by the court; for the taxing was a judgment to which the plaintiff was not a party AVere the plaintiff a party to it, the case would be different. So of the taxing of counsel fees. The court ought to allow reasonable charges only; but where the law has provided a fee-tariff and the court allows an excess, the defendant, if obliged to pay, cannot recover of the plaintiff on his bond at the termination of the suit in the defendant's favor any more than the legal fee, provided the plaintiff was not concluded by the allowance as a party to the rule. § 1029. "Whatever is rightfully taxed as fees and costs may be recovered on the bond, if the defendant is responsible for them to his counsel or to the officers of court, it has been held, whether he has already paid them or not;^ but the case is Rae V. Brown, 12 id. 181; Phelps v. 11 Wend. 229; Fitzpatrick v. Flagg, Coggeshall, 13 id. 440; Transit Co. 12 Abb, Pr. 189; Corcoran v. Jud- V. McRea, id. 214; Burton v. Smith, son, 24 N. Y. 106; Buckler v. Van 49 Ala. 293; Boiling u. Tate, 65 id. Diver, 70 Miss. 622: Marquese v. 417; 39 Am. Rep. 5; Seay v. Green- Southmeyer, 59 id. 430. Compare wood, 21 id. 491 ; Brown v. Jones, 5 Lyman v. Lauder baugh, 75 la. 481 ; Nev. 374; Swift v. Plessner, 39 Mich. Schmick v. Noel (Tex.), 8 S. W. 83. 178 ; Behrens v. McKenzie, 23 la. 333 ; Attorney's fees have been disallowed Byford v. Girton (la.), 57 N. W. 588. as damages when the owner was not See Littleton v. Frank, 2 Lea, 300; disturbed in possession. Baldwins. Vorse V. Phillips, 37 la. 428; Bank Walker, 94 Ala. 514. V. Heath, 45 N. H. 524; Morris v. i Jones r. Doles, 3 La. Ann. 588. Price, 2 Blackf. 457 ; Murray v. Mun- In Patton v. Garrett, 37 Ark. 605, it ford, 2 Cow. 400; Shultz v. Morri- Avas held that attorney's fees are not son. 3 Met. (Ky.)98; Boydr. Brisban, actual damage and not recoverable. § 1030.] RECOVERY OF COSTS, FEES, EXPENSES, ETC. 697 ; stronger when he has paid/ and prepayment has been held essential.- If either counsel or officer has released him from the payment he cannot recover on the bond for the sura re- leased. If he has already paid, that fact would not enable him to make the obligor of the bond refund to him an equal sum, if the payment was illegal or excessive. The payment should be considered as a circumstance in his favor, showing his good faith, and proving how much he has lost by the wrongful attachment; but he should have performed the very disagreeable duty of opposing the illegal bill before he paid it; and, if he has avoided such duty, he cannot recover of the plaintiff merely because he has paid it. The plaintiff would have the same right to contest it that the defendant previously had. It has been held that if the attachment bond contains a stipulation that a reasonable attorney fee shall be allo\,'ed as part of the costs, it may be allowed though in excess of the bond.^ §1030. Untaxed fees. — Are untaxed counsel fees recover- able on the bond? This has been a mooted question, and it requires notice more at length than most of the others arising in actions on such instrument. The obligation is to pay what- ever damages the obligee may suffer by reason of the wrong- ful attachment. The obligee is driven to the defense of the suit and must have counsel and must pay for it and ought to be reimbursed for such forced outla3'as for any other when the fee is reasonable and its payment obligatory. Such loss of money is a consequence of the wrongful attachment.* "The necessity of paying such counsel fees is an actual damage which the defendants have sustained. . . . It is not a mere matter of discretion, as the condition of the bond is impera- tive, that the obligors in the bond shall pay . . . such damages " as the obligees may sustain by reason of the injunc- tion. The action which Chancellor Walworth was consider- ing when he made the above-quoted remarks was upon an 1 Damron r. Sweetzer, 16 Bram- Wilson v. McEvoy, 25 id. 169 ; Prader well, 339; Tyler v. Saflford, 31 Kan. v. Grimm, 28 id. 11. 608; State v. McHale, 16 Mo. App. 3 Union Mercantile Co. u. Chandler 478; State v. Thomas, 19 Mo. 613; (la.), 57 N. W. 595. Frost V. Jordan, 37 Minn. 544. * Hayden v. Sample, 10 Mo. 215. 2 Elder v. Kutner, 97 Cal. 490; 698 DAMAGES FOE WRONGFUL ATTACHMENT. [§ 1031. injunction bond, but it involved the principle here under con- sideration.^ He goes on to reason that under a covenant of warranty in a conveyance, the evicted grantee may recover of his grantor the necessary counsel fees which he has paid in defending the title as a part of the damages sustained by the breach of warranty, and that the right to recover such fees in the bond suit is the same in principle. If there is perfect analogy between a suit on an attachment bond and one on an injunction bond, no conclusive argument can be based on such analogy to prove that counsel fees are allowable; for, though they have often been held so,^ they have sometimes been held to the contrary.^ And, with refer- ence to the argument drawn from actions by a vendee on the breach of the covenant of warranty, it is not everywhere set- tled that the attorney fees not taxed, which the ejected grantee has been obliged to pay in defending the title, can be recov- ered as damages.'* § 1031, "Attorney's fees for prosecuting the defendant's claim for damages cannot be considered as a natural and 1 Edwards v. Bodine, 11 Paige, 223. 2 Corcoran v. Judson, 24 N. Y. 106 ; Bank v. Heath, 45 N. H. 524; Brown V. Jones, 5 Nev. 374 ; Fitzpatrick v. Flagg, 12 Abb. Pr. 189; McRae i\ Brown, 12 La. Ann. 181 ; Murray v. Munford, 2 Cow. 400; Boyd v. Bris- ban, 11 Wend. 229; Boiling v. Tate, 65 Ala. 417; 39 Am. Rep. 5; Holmes V. Weaver, 52 Ala. 516; Garrett v. Logan, 19 id. 344; Miller v. Garrett, 35 id. 96 ; Pounds v. Hamner, 57 id. 343. SQliphant v. Mansfield, 36 Ark. 191 ; Oelrichs V. Spain, 15 Wall. 211 ; Ferguson v. Baker, 24 Ala. 402 ; Bul- lock V. Ferguson, 30 id. 227 ; AdaTii V. Gomila, 37 La. Ann. 479; Mc- Daniel v. Gardner, 34 id. 341. 4 In Turner v. Miller, 42 Tex. 418 ; 19 Am, Rep. 47, this subject is learn- edly discussed, and fees disallowed. In the opinion, and in a note ap- pended by the reporter in the American Reports, the following cases are cited which favor the allow- ance: Rickert v. Snyder, 9 Wend.-^ 422; Rewe v. Heath, 23 Tex. 620, on special promise by grantor; Staatsv. Executors of Ten Eyck, 3 Caines, 115-117; Robertson v. Lemon, 2 Bush, 301 ; Dalton v. Bowker, 8 Nev. 190; Keeler v. Wood, 30 Vt. 242; Smith V. Sprague, 40 id. 43, Refer- ence is made in the note to McGary V. Hastings, 39 Cal. 360; 2 Am. Rep. 456; Levitzky v. Canning, 33 Cal. 299: Harding v. Larkin, 41 111, 413; Mayor v. Dunnavant, 25 id. 362; Hoot V. Spade, 20 Ind. 326; McAl- pine V. Woodruff, 11 Ohio St. 120; and to the following contra: Hale v. The City of New Orleans, 13 La. Ann. 502; Sarpy v. New Orleans, 14 id. 311 ; Williams v. Le Blanc, id. 757 ; Yokum v. Thomas, 15 la, 67 ; Clark V. Brott, 71 Mo. 473 ; Frank v. Chaff e, 34 La. Ann. 1203. See Strauss V. Dundon (Tex, Civ. App.), 27 S. W. 503. §§ 1032, 1033.] KECOVERT OF COSTS, FEES, EXPENSES, ETC. 699 proximate consequence of the suing out and levy of the writ of attachment, and is not an element of dama<^e.''^ The injustice of not remunerating the grantee for whatever he is compelled to pay by reason of a breach of warranty on the part of the grantor must be apparent to the candid mind; and what he is obliged to pay to his counsel ought not to con- stitute any exception. Ordinarily, the burden of the defense of an ejectment suit falls upon t!ie grantor who is called in warranty, but the grantee is in court and has rights to be looked after, and his interests would be likely to suffer were they not protected by a competent representative. § 1032. If the analogy between such suits by grantees and suits on injunction bonds on the one side, and those now under treatment on the other, were perfectly established; if in all, counsel fees were admitted to be recoverable as dam- ages, it would not follow that whatever fees have been paid or agreed upon by the defendant and his counsel are recov- erable from the obligor of the attachment bond. Indeed, in none of the classes of cases above noticed are unreasonable fees thus collectible. What is and what is not unreasonable is a matter for decision. A fee may seem large yet not be unreasonable. A fee may be what the defendant of the at- tachment suit was, by reason of the attachment, obliged to pay in order to get the best aid. He is entitled to the best. He ought to be reimbursed for what the ablest professional services rendered have reasonably cost him. But, however valuable the services, no damages can be recovered if they were gratuitously rendered. When no law3'er was emplo3'ed except to move for a new trial, no fee was allowed as dam- ages." §1033. Expenses. — Unnecessary expenses incurred by the attachment defendant are not allowable as elements of dam- age.^ Traveling expenses have been allowed,^ but ordinary personal expenses in attending court have been denied.'^ It seems reasonable that such outlays should be reimbursed if distinctly attributable to the wrongful attachment and made necessary by it. 1 Yarborough v. Weaver (Tex.), 25 s state r. Kevill, 17 Mo. App. 144. S. W. 408 ; Landa v. Obert. 45 Tex. 542. 4 State v. Shobe, 23 Mo. App. 474. 2Trauiiiiell v. Ramage, 96 Ala. 66G. SGooUbar v. Lindslcy, 51 Ark. 380. TOO DAMAGES FOR WRONGFUL ATTACHMEXT. [§§ lOott, 1035. §1034. Costs as to sureties. — Sureties on an attachment bond which obligates the principal for costs become liable for all the costs of the suit; and it has been held that their liability is not confined to the attachment proceeding consid- ered apart from the personal suit,^ They have been held lia- ble not only for costs, but also for expenses and disbursements adjudged to the defendant.^ But this does not include attor- ney's fees.^ That may depend, however, upon the terms of the bond and upon the taxing of such fees in the case. The sureties on a bond given by a claimant of attached property are bound with him for the costs.* § 103^. Costs due officer. — The sheriff or marshal is entitled to make his costs out of the attached property when there is judf-raent for the plaintiff. He may retain it till the fees are paid.' The defendant cannot settle with the plaintiff and have the case against him dismissed, and thus waive his action on the undertaking, so as to deprive the court officers of their right to secure their fees either from the attached property or the undertaking.® The expense of the keeping of property falls on the part}?' cast. The sheriff may reimburse himself from the proceeds of an attachment sale when his charges have been allowed,'^ His charges for assistance rendered to him in the disposition and sale of perishable property, having been allowed in the lower court, the review of the order was refused in the appellate court.^ But neither the proceeds of attached property nor the property itself is liable to the sheriff for his costs and disbursements when the defendant is not the owmer.^ 1 Greaves ^•. Newport, 41 Minn. 240; 5 Perrin v. McMann, 97 Cal. 52. Lee V. Homer, 37 Hun, 634; 109 ^id. gee as to sheriff's recourse N. Y. 830. when attachment has been vacated, 2 Drake v. S worts (Or.), 33 P. 563 : Bo we v. United States Reflector Co., Ging Gee v. Ah Jim, 7 Fed. 811. 66 How. Pr. 41. 3 Northampton Bank v. Wylie, 52 ^ McNeil v. Bean, 32 Vt. 429: Glea- Hun, 146. Contra: Territory v. son r. Briggs, 28 id. 135; Felker v. Rindscoff, 4 N. M. 363. Emerson, 17 id. 101 ; Tarbell v. Dick- ■1 McEh-ath 1?. Whetstone, 89 Ala. inson, 3 Gush. 345; Phelps v. Camp- 623; Comer V. Reid, 93 id. 391; Fort bell, 1 Pick. 59; Hanness v. Smith, Worth, etc. v. Hitson (Tex.), 14 S. W. 1 Zab. 495. 843; Wallace v. Terry (Tex.), 15 S. » Toledo Savings Bank v. Johns- W. 35; Williams v. Bernwell, 78 ton (la.), 57 N. W. 622. Tex. 326. i» Brand v. Brown, 70 Hun, 388. INDEX. The references are to sections. ABANDONMENT — of attached property b}^ the keeper, 565, 566. when the sheriff may regain possession, 566, of possession, destroys jurisdiction over attached property, 615. of attachment by the seizing creditor gives junior attacher the first rank, 809. of attachment by the seizing creditor gives defendant right of action for damages, 969. of attachment of land does not make an order of release necessary, 560. by creditor of a part of attached property, 831. by making a second seizure, releasing the first, 918. of attachment by the return nulla bona to execution, 946. by garnishee of property held by him, 580, 587. of garnishment by the garnishor cannot affect the garnishee's right to costs, 940. defeats an intervener, 823. of claim by not intervening, when, 788. of right to claim exemption, 735. of domicile, 44, 46. ABATEMENT (see Dissolution of Attachment; Quashing for Patent Errors) — may be pleaded to resist an amended afiSdavit, 150. when the petition is erroneous as to plaintiff's name, 87. when garnishment proceedings are pending against the defendant, 951. in state court by defendant garnished in federal court, 951. may not be pleaded because of an order discharging garnishee, 960. of attachment by the death of the defendant, 920. ABOUT — to remove from the state or county, 27. property from the state, 27, 705. to fraudulently convey property, 27. convert property into money to defeat creditors, 37, assign property, 71. conceal property, 59. to abscond, 56, 134, 807. 702 INDEX. The references are to sections. ABSCONDING BY DEBTOR — to avoid process, 50-52. by leaving the state or county, 51, 52. by secreting himself, 30, 54. charged in affidavit for attachment, 124-5. forfeits right to claim exemption, 735. leaves debtor's i^roperty to be managed by auditors, where, 883. ABSENCE — held to mean non-residence, in some statutes, 30. affected by the intention of the debtor, 44. may create presunaption of non-residence, 45. whether permanent or not may be inferred, 46. without fixed abode, 47. ACCEPTANCE OF SERVICE — renders summons unnecessary, 198. not by garnishee, 493. ACCOUNT BOOKS— attachment of, is not attachment of the debts therein charged, 274. not generally attachable as evidence of debt, except by some statutes, 275. ACTION (see Cause of Action). ADDRESS OF THE WRIT — may be amended by the clerk, when, 225. ADMINISTRATION OF OATH — by authorized officer, 109. by clerk of court or deputy, 109. not by plaintiff's lawyer as notary, 109. ADMINISTRATOR — as to garnishment, 403-411. when liable, 404, 408. when not liable, 43, 406. AFFIANT — in general, 105-107. when plaintiff, 105. a corporation, 105, 106. an agent, 105, 106. a third person interested, 105. an attorney at law, 107. by power of attorney, 106. AFFIDAVIT FOR ATTACHMENT — in general, 105-160. made by whom, 105-107. how executed, 108-110. signature of affiant, 108. of officer to the jurat, 108. sworn before whom, 109. INDEX. 703 The references are to sections. AFFIDAVIT FOR ATTACHMENT (continued) — filing. 110. form and essentials, 111-114. contents, 111. no description of property to be attached, 111, no averment of jurisdiction. 111. no statement of summons issued, 111. should show need of the remedy sought, 111, must accord with the statute, 112. agree with the petition, 79, 82. state the facts, 112. must state relative to property, what, 113. always against a person, 113. one sufficient for several attachments, 113. must state the debt, 115-121. character of the debt, 115, IIG. must not be inconsistent, 115. not circumstantial like a petition, 115, 116. items of debt not generally required, 116. in suit\On a note, 116. when suit on contract, 117. for debt due, 117. amount of the debt, 118. stated on certain knowledge, 118. sworn by attorney, 119. overstated, 120. above counter-claims, 121, 160. may not be all covered by the attachment, 80. must not exceed the demand of the petition, 82, 83. as laying the grounds, 122-126. must be statutorj-, 122. charging fraud, 123. specifically, when, 123. absconding, 124, 125. non-residency, 125, 126. tort, 126. on information and belief, 127, 131. should state absence of informant, when, 138, source of information, 129. reasons for belief, 129. inferences, 129. agent or attorney's belief, 130. by two or more agents, 130. whether agency should be stated, 131. certainty, 132-134. qualification bf statement, 133. consistency, 134. grounds joined copulatively, 134, 135, stated disjunctively, 135, 136. 704 INDEX. Tlie references are to sections. AFFIDAVIT FOE ATTACHMENT (continued) — alternation, 135, 137. when allowed, 135, 136. when there is unity of idea, 136. inconsistent grounds, 136. in statement of the debt, 137. amendments to, 188-152. superfluous words, 139. omission of what the context suggests, 189, unnecessary matter, 140. omission of plaintiff's name, 141, affiant's signature, 141. seal to jurat, 141. error in affiant's name, 140. variances, 79, 142. fatal defects, 143. amendable defects, 144. after issue of the writ, 144, 146, 147. after motion to dissolve, when, 699, adding new grounds, 145. after rights acquired by third persons, 145, by changing counts, 145. after motion to vacate, 146. when defendant is present, 148. by competing attacher, 148. by adding new matter, 149. to state corporate character, 149. not to reverse the meaning, 149. when abatement not pleaded, 150, before defect declared, 151. voidable, attacked pendente lite, 152, as to subsequent attachers, 152. as evidence, 153-156. to belief, 153, 156. proof to the satisfaction of the court, 154, traverse. 155. jurisdictional, 157-160. strictly construed, 160. read on rule to dissolve, 708, 709. corresponding with writ, 212, 215. AFFIDAVIT BY SHERIFF, 203. AFFIDAVIT IN GARNISHMENT, 481, AGENT — of plaintiff, may make affidavit, when, 106, 130. how authorized, 131. signing attachment bond. 183, 184. of corporation, as to service of attachment, 333. INDEX. 705 The references are to sections. ALTERATION (see Affidavit for Attachment; Amendment of Peti- tion OR Complaint). ALTERNATE ALLEGATIONS — in affidavit, when allowable, 135, 136. not allowable, 136. in statement of the debt, 137. ALIQUOT PARTS — in distribution of proceeds, 815. AMENDMENT OF AFFIDAVIT (see Affidavit for Attachment). AMENDMENT OF PETITION OR COMPLAINT — in general, 81-91. as to misjoinder, 84. maturity of the debt, 84. writ and affidavit, 84. nature of debt, 84. cause of action, 85. not after levy, when, 85. as to error of a name, 86. amount of claim, 86. parties, 87. minors, 87. defendant, 88. relates to the institution of the suit, when, 88. not when motion to vacate is pending, 88. to show jurisdiction, 89- in federal courts, 89. as to radical mistakes, 89. demurrer, 90. suretyship, 91. AMENDMENT TO WRIT — in general, 220-226. as to names, 223. seal, 224. statutory defects, 858-863. after garnishee's answer, 379. AMOUNT OF CLAIM (see Affidavit for Attachment). ANCILLARY PROCEEDING — apart from principal suit, 3. upon appearance of the debtor, 8. requires notice to the debtor, 200. when debt is not due, 502. defendant cannot move for new trial in, when, 926. by dispossessed owner who is not a party to the attachment suit, 987. ANIMUS OF DEBTOR, 46, 56. ANOMALOUS ATTACHMENTS (see Exceptional Attachments). 45 706 INDEX. The references are to sections. ANSWER OF DEFENDANT (see Appearance of Defendant). ANSWER OF GARNISHEE (see Garnishee's Disclosure). APPEAL — by plaintiff, 905-7. by defendant, 905. if maintained, releases judgment against garnishee, 926. after discharge of the garnishee, 961-2. while pending, renders payment to plaintiff by garnishee premature, 926. with supersedeas, 907. by garnishee, 924. APPEARANCE OF DEFENDANT — in general, 655-8. special, defined, 655. purpose, 656. does not make appearer a party, when, 657. to except to jurisdiction, 658, 661, 665. to move for new trial, when, 659. to object to patent defects, 662. to test the validity of the writ, 664. not proved by parol, 664. general,- renders summons unnecessary, 193. cures want of notice, 860. at the time required by the summons, 203. after default, 862. cures some defects of affidavit, 148. does not preclude exception to jurisdiction, 659. may be, though nominally special, 660. by pleading prescription, 661. by moving to set default aside, 661. to stay proceedings, 661. by filing demurrer, 661. by asking continuance, 661. writ of error, when, 661. by answering conditionally, 661. by unqualified entry, 664. by replevying attached goods, 664. by bonding, 667, 749. waives irregularities, 665-7. of attachment bond, 667. authorized by defendant, 668. may be set aside, when, 668, renders the suit personal, 669, not affected by attorney's withdrawal, 669-71. necessary, to dissolve on evidence, 701, to oppose confirmation of sale, 916, INDEX. 707 The references are to sections, ASSIGNMENT — relative to attachment, 262-266. precludes subsequent attachment, 262, 264. unless fraudulent, 263. fraudulent, 846. how indicated, 262, 263. in form of sale, 263. distinguished from sale, 263. as to dissolution of attachment, 264. as to attaching creditor claiming dividend, 264. as to property of non-residents, 265. as to recording, 265. foreign, 266. no estoppel to creditors, when, 370. of claims for collection out of the state, 743. inhibitable, when, 743. of negotiable note, 839. asserted by intervenor, 840. as to preferences, 840. accepted by all creditors, dissolves attachment, 840. void, when, 841. in foreign state, 842. for benefit of creditors, 844. by partners in bankruptcy, 845. by a partner, 845. relative to receiver, 847. ASSIGNMENT -EEL ATI VE TO GARNISHMENT — in general, 412-427. before garnishment, 412. as to form, 413. for benefit of creditors, 414. as to excess unassigned, 415. accepted by assignee, 416. not all creditors, 416. notice to debtors, 417. as to debt not due, 418. disclosure by assignor's debtors, 419. pleaded by intervening assignee, 420. not pleaded, assignee guilty of laches, 421. notice to garnishee, 421. by insolvent, 422. illegal and fraudulent, 423-427. does not prevent garnishment, 423-425. purchaser must show payment, 425. commissions of assignee, 427. may be questioned in garnishment proceedings, 544. if not disclosed by garnishee, he is liable after payment to garnishor under oi'der, 966. 708 INDEX. The references are to sections. ATTACHING — in general, 276-811. is mesne process, 984. selecting property, 276. directions of plaintiff, 276, 293, 304. defendant, 277. real estate, 278-282. return on, as to land, 278, 279. creating lien. 279. interest in land, 381. constructively seized, 283. of devisee, 283. of heirs, 283. of mortgagee. 383. personalty, 283-290. by actual seizure, 283, 284, 286, 289. removal not essential, 284-287. growing crop, 285. not by notice and return, 288, 289. by second levy, 290, 308. stocks, 291. when writ to be executed, 292-295. not after debtor's insolvency declared, 295. return day, 295. relative to officer's duty, 296-303. service of process, 296. on defendant's servant, 396. too much or too little, 297. by force, when, 298-300. not by trickery, 301. leaving copy of writ, 303, 324. wrongfully, 304-311. officer liable, when, 304, 306. by taking third person's property, 307. temporarily, to separate mingled goods, 309. ATTACHMENT BOND — in general, 161-196. protecting defendant, 161-166. when collectible, 162. obligee, 163. when good as common-law bond, 164, 165. necessary to the writ, where, 167-169. jurisdictional, 168. when filed, 168. taken by whom, 168, 173. damages, 169. form, 170. matter, 171. INDEX. 709 The references are to sections, ATTACHMENT BOND (continued) — seal, 172. approval, 173. verification of surety, 174. .amount, 175-177. statutory, 175. relative to the claim, 176. excessive, 177. conditions of, 178-181, 1004. relative to third persons, 179. prosecution of the suit, 180. identification with the suit, 181. as to the principal, 182-185. his signing, 182. partner or agent signing, 183. attorney at law signing, 185. power of attorney, 184. as to the surety, 186-198. his signing, 186. firm name, 187. as to the number of sureties, 188. qualifications, 188. obligations, 189, 190. surety not a witness, when, 190. additional security given, when, 191, 192. substitution of one surety for another, 193. amendment of bond, 194-196. before issue of writ, 194. after issue of writ, 195. after interests of third pei'sons have intervened, 196. want of, a ground for dissolution, 691. new one may be filed, when, 699. omission of, when required, renders clerk and plaintiff liable, 1004. has no reference to the personal action, 1005. covers costs. 1027-1029. held to cover counsel fees of attachment defendant, 1028. whether untaxed fees are recoverable on the bond, 1030, as to expenses, 1033. ATTACHMENT WRIT (see Writ of Attachment). ATTORNEY AT LAW — may make affidavit for attachment, when, 107, 130. to amount of debt, 119. may sign attachment bond, 185. is garnishable, when, 402. directed to pay to a third person, 416. cannot affect suit by his withdrawal, 669-671. when garnishee is allowed his attorney fee, 938, 941. 710 INDEX. The references are to sections. AUCTIONEER — his relation to the owner of goods sold by him, 358. AUDITORS — of absconding debtor's property, 883. AUTHORIZATION OF ATTACHMENT, 26-76. AVOIDANCE OF CREDITORS, 55, 57. B. BAIL (see Surety). BAIL BOND (see Dissolution Bond). BAILEE (see Keeper ; Receiptor). BANK (see Corporations as Garnishees). BELIEF (see Affidavit for Attachment). BOND (see Attachment Bond; Bond to Restore; Bond to Release Garnishment; Common-law Bond; Dissolution Bond; Forth- coming Bond; Garnishment Bond; Indemnity Bond; Replevy Bond). BOND TO RELEASE GARNISHMENT — given by defendant, 931. sued on, by plaintiff, 931. as to sureties, 931. BOND TO RESTORE, 622, 959. BURDEN OF PROOF — on motion to dissolve attachment, 707-9. on the reconvenor, 994, 997. on claimant of damages as to the falsity of the attachment aflBdavit^ 1013. malice and want of probable cause, 1031, on purchaser of attached property, when, 849. on attaching creditor, to show fraud, when, 849, BUSINESS PLACE, 29, 40. c. CARRIER (see Common Carrier). CAUSE OF ACTION — in general, 94-104. breach of contract to pay, 94. covenant of warranty, 94. for the "i-ecovery of money," 94. not for unliquidated damages, 95. not on unsettled accounts, 99. affected by prior agreement, 95. to collect subscription, 95. I^DEX. 711 The references are to sections. CAUSE OF ACTION (continued) — novation of note, 96. not for debt not due, when, 96. implied contract, 97. debt certain, though not due, when, 98, 99. debt partly due, 98. stay of judgment, 98. at place of payment, 100. being wanting, damages may be recovered for attaching, 1013. CAVEAT EMPTOR — applicable to creditor's sales, 868. as to recovery of purchase-money after ejectment, 641. CHARGING THE GARNISHEE (see Garnishee's Disclosure)— the charging order, 552, 553. not when he is already sued by his creditor, 548. is by interlocutory order, 552. not defeated by defendant's disclaimer, 553. CHOSES IN ACTION — when attachable, 272, 273. how attached, 274, 275. how notes are taken for collection, 273, 275. of wife, 275. as to garnishment in execution, 948. CITY — as to garnishment, 439-443. not generally liable, 439. liable under statute, 442-8. as to taxes, 441. CLAIMANT — of attached property, 816-826. must prove title, 816-818. cannot deny that garnishee holds, when, 820. of property, may claim damages in the same suit, where, 820. cannot attack plaintiff's proceedings as irregular, 820. may move to dissolve, when, 821. of proceeds, in distribution, 916. CLERK OF COURT — directed by the court, 208. cannot issue writs when the bench is vacant, 209. issues writs presumably under order of court, 210. under statutory authorization, 211. in due order to the serving officer, 216, 219. attaching creditors, 808. not to an officer interested in the case, 225. may take affidavit, 109. bond, 173. liable to damages for not delivering wi-its in due order, 808. 712 INDEX. Hie references are to sections. COLLATERAL ATTACK (see Jurisdiction) — not of judgment in general proceedings, with notice to all, 862. allowed, in general proceedings, for want of notice, 887. when the judgment is jurisdictionless, 865. when the person attacking was not a party in the case, 986. COLLATERAL SECURITY — renders attachment unnecessary, 30. failing, may be followed by attachment, 20. COLLUSION — between plaintiff and defendant, to defraud, 677. garnishor and garnishee, 966. debtor and another, to defraud, 846. a partner and the plaintiff, another partner may sue for damages for the firm, 1016. COMITY — relative to attachment in foreign state, 653, 743, 744. does not require that a foreign assignment be regarded when repug- nant to home law, 266. between courts to prevent conflict of jurisdiction, 988. COMMON-LAW BOND — insufficient attachment bond may hold good as, 750. dissolution bond may hold good as, 764. COMMON CARRIER — has lien on goods carried, 268. when holding as warehouseman, 451. relative to garnishment, 449-454. for goods being transported, 449. as to passengers' baggage, 453. COMPLAINT (see Petition). CONCEALMENT (see Grounds for Attachment). CONDITIONAL OBLIGATION - in general, 373-6. not reached by garnishment, 372, 373. CONFESSION OF JUDGMENT — in favor of third person to defeat creditor is concealment of prop- erty, 71. in favor of attaching creditor, effect upon the lien of junior attachers, 811. CONFUSION OF GOODS (see Intermingled Goods). CONSIGNMENT — on credit, 267, 370. when goods stopped in transitu, 207, 270. of goods, in agent's hands, 369. of goods not delivered, 269. in payment, 271. INDEX. 713 TJie references are to sections. CONSTABLE (see Officer Executing Attachment). CONSTRUCTION OF STATUTE (see Jurisdiction) — strict to authorize the remedy and confer jurisdiction. 23, 160, 625. as to prerequisites to attaching, 625-37. as to affidavit, 112. as to statement of the debt, 115, 110-121, 157-159. as to notice, 629-633, 878-8. See Publication Notice. by state supreme courts followed by federal courts, 680-633. that jurisdictional facts must appear of record, 637, 689. that proof of publication must appear of record, 640. that authorization of actions against person or property not subject to process is void, 651. does not extend to his executor, heirs, etc., 43. that the language of the statute need not be employed in attachment affidavit, 122, 160. unless specially prescribed, 128, 160, 750. that the attachment of evidences of debt requires express authoriza- tion, 275. libei-al, when the authorization is clear, to insure justice and defeat fraud, 23. with reference to evidence, 24. relative to the exercise of jurisdiction already acquired, 25, 624, 628. as to the commencement of an action, 197-8. as to non-residency, 32-35, 39. as to absconding and concealed debtors, 50, 51. fraudulent disposition of property, 57, 63-4, 134. debtor's animus under contract, 75. relative to chancery jurisdiction, 76, 103. federal, as to amendments, 89. expressly authorizing attachment for tort, 101. as to its implication that affidavit may be made by an agent, 105-7. on the execution of attachment bond, 170. as to its amount, 175-8. conditions. 181. sureties, 188. as to change of sureties on attachment bond, 193. requiring effort to effect personal service, 199. embracing both writ and summons, 201. authorizing clei'ks of court to issue process, 210, 211. inhibiting attachment suits against national banks, 231. authorizing garnishment of persons — not naming corporations, 443. as consonant with exemption laws, 720. relative to exemptible things, 725. homesteads, 729, 730. garnishment of exempt goods or dues, out of the state, 744, 745. assignment for benefit of creditors, 844. 714 INDEX. The references are to sections. CONSTRUCTIVE POSSESSION — is no ground for garnishment, 371. is not that of a clerk or agent holding directly under his employer, 371.. J of personalty attached to realty, 558. ■ of attached land, 559. CONSTRUCTIVE SEIZURE— | not of chattels, 283-4. f of land by serving copy and returning writ executed, 378. with description returned, 279. by posting notice and making return, 280. of interest in land, 281. of any interest in property or intangible right, 383. CONSTRUCTIVE SERVICE — is not by publication, 343-5, 607-613. by consent of the defendant previously given, 606. CONTINGENCY (see Conditional Obligation). CONTRACT — breach of, a cause of action by attachment, 94-97, of warranty, breach of, cause of action by attachment, 94. by attachment bond, cause of action by attachment, 95. by appeal bond, attachment does not lie on, 94. for stock subscription, attachment lies, 95. novating note, attachment lies, 96. on outstanding bank draft, attachment does not lie, 96. implied, 97. how debt upon contract must be stated, 117, 137. amount of debt, 118. overstatement of the amount, 120. CONVENTIONAL LIENS — not enforceable by attachment, 19. CORPORATIONS AS GARNISHEES — in general, 428-468. public — states and their officers not garnishable, 428-488. for funds appropriated, 429. why, 430-2. counties generally, not, 433-8. liable on contract, 436. townsliips, 437. school districts, 438. cities, 439-443. private — liable as garnishees, 444-468. how summoned, 444. by whom to ansvs^er, 444. banks, 445-6. national banks not garnishable before judgment, 367. insurance companies, 447-8. INDEX. 715 Tlie references are to sections, CORPOEATIONS AS GARNISHEES (continued) — private — railroad companies, 449-454. treasurer's possession of tlie funds, 454. servants of, 455-6. ticket agent, 455. teller of bank, 455. domiciliated where, 459-462. liability in different states, when, 461-3. COSTS — not adjudged against defendant when not notified and not appear- ing, 607. paid by plaintiff when garnishee is discharged, 943. paid by defendant or by the property when garnishee is charged, 943. allowed intervenor, when, 835. not against judgment defendant, 918. when charged against garnishee, 937-940. when allowed to garnishee, 937-942. how paid, 943. should be paid by plaintiff for an abortive first attachment, though second successful, 1026. must be alleged by complainant who claims them as damages, 1037. as to sureties, 1034. as to officer, 1035. COUNTER-CLAIM (see Reconvention) — above discounts and offsets, 121. COUNTY — not generally garnishable, 433-8. oflScers not generally garnishable, 433-8. jurisdiction in, 643 and note 2. may have writ of attachment issued therein, though the affidavit was made in another county, 211. COURTS (see Jurisdiction ; Equity). CREDITOR'S BILL (see Equity) — to set aside a fraudulent assignment, 560. in lieu of garnishment in execution, where, 945. CROP — how attached, 285. CUSTODIA LEGIS (see Custody of the Law). CUSTODY OF THE LAW — property in, 259-262, 393-411, 428-443. when not attachable, 259. when attachable, 261. 716 INDEX. The references are to sections, CUSTODY OF THE LAW (continued) — of attached property, by the court, 554. under wrongful seizure, 985. by sheriff or marshal, 554-7. by keeper or receiptor, 554-6, 563, 564, 566. by bailee, 563. by mortgagee, when, 571. by defendant, when, 567, 573-575. by defendant's wife, when, 570. by sub-agent, 568. by defendant's employee, when, 569. • by receivers, 577-8. constructive possession, 558. restoration, 557. delivery by keeper, 572. of real estate, 559, 560. of insolvent partnership property, 423. of goods, 561. loss of. 593-5. action to recover property from the officer must be in the court hold- ing the property, 982. CUSTODY OF THE LAW RELATIVE TO GARNISHMENT — garnishee holding defendant's property, 579, 581. having lien on property held, 579. special property, 580. as to junior garnishors, 582, 587. as a stakeholder, 583. as to his own rights, 585. protects from garnishment, in general, 393-413. court officers, etc., 393-402. sheriff, when, 393-395. receivers, when, 400. attorneys, when, 402. executors, when, 403-411. administrators, when, 403-411. CUSTOM OF LONDON — does not deem the debtor in court because his credit is attached, 206. allows the creditor to garnish himself, 359. default after proclamations, 881. no final judgment till a year and a day after default, 881. protects the absent debtor by requiring security of the creditor, 881. INDEX. 717 The references are to sections. D. DAMAGES AGAINST THE ATTACHING CREDITOR — by reconvention, in general, 993-998. not generally authorized, 993. is allowed in several states, 995. is like a cross-bill, 994, 995. may be either actual or exemplary, 996. may be defended how, 997. does not involve surety on attachment bond, 993. limited by the court's jurisdiction as to amount, 998. by direct suit after dissolution of attachment, 999-1005. is the common practice, 999. while attachment is pending, exceptionally allowed, 1000. after attachment plaintiff has been nonsuited, etc., 1000. after plaintiff's appeal has been dismissed, 1007. mitigated by a subsequent successful attachment, 1001, 1026. nominal when second attachment shows property liable, 1001. corporation stock was seized, etc., 1010. land is attached, 1011. by joint suit of several persons who allege joint injury, 1002. by suit on the attachment bond, 1000-1, 1006. only by the obligee, 1002. by joint obligees, 1008. how alleged in the petition, 1007-8. by bond suit against both principal and surety, 1008. are not limited to the amount of the bond, as to attaching creditor, 1008. contingent, 373. measure of actual damages, 1009. for attachment of land, 877, 1011. not the rental in open market, 1011. as to loss of time, credit and profits, 1010. for directing the officer to attach wrongfully, 308. for lack of statutory ground for attaching, 1013, 1017. cause of action, 1013. for injury, at suit of any person injured, 1015. claimant of attached property, 820, 831. mortgagor, when, 1015. mortgagor, nominal, when property once sold, 1015. member of a firm for the firm, 1016. exemplary when attaciunent was malicious and without probable cause, 996, 1018, 1019. when malice may be inferred, 1020. must be proved by complainant, 1021. to recover, complainant must allege want of probable cause, 1018. niay be recovered in suit against several plaintiffs, when, -1018. 718 INDEX. The references are to sections. DAMAGES AGAINST THE ATTACHING CREDITOR (continued) — defenses to suit for, 1021. what constitutes malice, 1022. suit for, not barred by judgment for attaching creditor if not final, 1024. caused by garnishment, 1036. include costs, recoverable on the bond, 1027. to recover, with costs, fees and expenses, complainant must allege them, 1027. DAMAGES AGAINST THE ATTACHING OFFICER — for trespass when attaching without authority, 304, 958, 975. by trover for attaching property held by assignee, 968. by suit on official bond for attaching without authority, 968, 977, 978. for injury to property in custody, in suit by defendant, 310, 311, 969. for not executing writ, 970. for partiality in service of writs, 970. for taking too little, 970. for unnecessary delay, 292, 970. for making inefficient return, 970. for not keeping attached property safely, 971. for delivering property to junior attacher, 971. defendant on order of first attacher, liable to the second, 972. for failing to replevy when divested of attached property, 972. for paying the attaching creditor without authority, 973. for dispossessing a mortgagee, 974, 981. any lienholder, 980. for attaching partnership goods in suit against a partner, 975. for attaching property not the defendant's, 307, 975. cannot be exemplary when there was no fraud and property has been restored, 971. measure of, 971. DATE — may be inserted to fill a blank, on motion, when, 141. of the writ, when later than that of tlie return, 326. DAY — on which levy made must be shown in the return, 325. fractions of, to the hour and minute, reported to show priority, 325. of return must be within the life of the writ, 326. attachment writ not issuable on a dies non, 217. all civil process at common law issuable on legal days only, 218. DAY IN COURT — is tendered by publication notice, 344. DEATH — as to abatement of attachment, 920. as to dissolution of attachment, 920. INDEX. 719 Hie references are to sections. DEBT (see Cause of Action) — when not due but certain, 98-100. when immaturity is shown by the promissory note evidencing the debt, 83. when action by attachment lies, 98. when fraud is charged, 98. when execution is stayed, 98. partly due, 98. for unsettled balances — action on, by attachment, does not lie, 99. of contingent claims not cause of action by attachment, 99. must be due to plaintiff to authorize attachment, 99. must be supported by grounds for attachment relating to the plaintiff personally, 27. must be ordinary and liquidated, 1. owing by a debtor beyond the state, 32-4. as to situs and place of payment, 100, 744-5. DECLARATION (see Petition). DEED OF TRUST — when surplus attachable, 249. DEFAULT — in general, 878-880. when taken, 878. when set aside, 879. in general proceedings against things, 880. in limited proceedings against things, 880. when special exceptions have been overruled, 663. after proclamations, under the custom of London, 206. of garnishee, in general, 499-502. when and why, 499. set aside, when, 500-1. not reviewable, when, 501. DEFECTS (see Affidavit for Attachment; Amendment op Petition). DEFINITION — of attachment, 1. of garnishment, 469. DELIVERY — when complete, 256. subject to preliminaries, 269. DELIVERY BOND (see Forthcoming Bond). DEPOSIT — of trust funds in sheriff's private name, 366. to the credit of another, 307. of another's money in depositor's name, 368. DEPOSITION (see AFFiDA"^aT for Attachment). 720 INDEX. The references are to sections, DEPUTY — clerk, may take affidavit, 109. issue writ of attaclimeut, 109. sheriff, may levy writ of attachment, 302. DESCRIPTION — of land in return to attachment writ, 278, 279, 317. of personal property, 316. of property generally, 318-321. in publication notice, 310. DIES NON (see Day). DISCHARGE OF GARNISHEE, 524. DISCLOSURE (see Garnishbe's Disclosure). DISPOSING OF PROPERTY FRAUDULENTLY (see Fraudulent Dis- position OF Property). DISSOLUTION OF ATTACHMENT ON GROUNDS BEYOND THE RECORD — on motion, when made, 683. not after answer to attachment, 683. requisites, 684. assignment of defects, 685. after special notice, 685. after general appearance, 702. after motion to quash for patent ei-rors, 703. by claimant, when, 821. because the affidavit is false, 700. the statute has not been followed, 702. the plaintiff's purpose is to defeat another creditor, 702. a like suit is pending, 702. judgment has been rendered and execution issued on the debt, 702. there has been fraud and collusion, 846. by rule taken, when, 703. verified, how, 702. as of right, without statute, 704. on testimony after laying the ground, 705. burden of proof, 707-709. evidence adduced by defendant, 705. plaintiff, 705. effect of, on personal action, 710. as to appeal, 710. as to restoration, 710. whether allowed after bonding, 711. reasons for allowing then, 711-713, decisions allowing, 714, 715. decisions denying, 716. as to sureties, 717. INDEX. 721 The references are to sections, DISSOLUTION BOND, 762-769. as to the lien, 762, 765-6. conditions, how construed, 764. by each of several defendants, 766. subsequent judgment without privilege, 767. releases the property %vholly, 767. garnishment, 769. sureties, 770-777. DISTRIBUTION OF PROCEEDS OF SALE — 2^ro rata, where, 791, 815. by moieties, when, 814, 815. by auditors, where, 882-3. by court, among creditors, 915, 916, DOMICILE, 38. DRAFT — for collection, 274. DUALITY OF ATTACHMENT SUIT — in general, 9, 90. when attachment is sejjarately sued out, 93. appears by the issue of both summons and writ, 205. did not exist under the custom of London, 207. two remedies held not inconsistent. 890. personal suit may be prosecuted to judgment while appeal from dis- solution of attachment is pending, 906. DWELLING-HOUSE — not to be broken into when attaching, 298-9. in form of flats and rooms, 299. E. EQUITY — attachment may be aided by, when, 103. as to wife's claim, 103. as to wife's separate estate, 103. as to partners, 378. as to copartner's property, 103. accommodation maker of note, 103. chancery proceeding against corporation, 104. jurisdiction over non-residents, 76. injunction against sale. 104. attachment of land frauduleiitlj' conveyed, 778. by bill in, second attacher cannot set aside the first attachment, 805. by attaching creditor to set aside a fraudulent assignment, 560. may be invoked by second attacher, when, 103, note 9. will give relief to garnishee, when, 952. 46 722 INDEX. The references are to sections. EQUITY (continued) — bit! in, for performance of contract, when attaching creditor is a party, 976, gives relief to garnishee from second payment when he was misled to make disclosure, 966. ESTOPPEL — as to garnishee, 426. EVIDENCE (see Burden of Proof) — to satisfy the court that attachment writ should be issued, 154. of the plaintiff's affidavit, 153-156. of the publicity of attachment admissible in damage suit, 1012. that other attachments followed in damage suit, 1012. affidavit for replevin not admissible in damage suit, when, 1012. that more was attached than shown by the return, 1014. that defendant was insolvent, inadmissible in defense of suit on attach- ment bond, 1014. that good grounds existed, inadmissible in defense of suit on attach- ment bond, 1014. that affidavit to belief was sincere, inadmissible in defense of suit on attachment bond, 1014. that attaching creditor knew of another attachment, allowed, 1014. that goods sold brought a fair price, 1014. that the attaching creditor induced the sale, shown by indemnity bond, 1014. of fraud, adduced from conversation at the sale, 976. affidavit for replevin is not admissible as evidence, when, 1013. of the sale to one who claims attached property, 849. EXCEPTIONAL ATTACHMENTS — on exceptional causes of action, 101-104. for tort, 101, 102. for money fraudulently obtained, 75. on exceptional grounds, 28, 78-76. fraudulently contracting the debt, 73-75. incurring the debt, 73, 74. of water-craft by general proceedings i7i rem, 9S9, 990. coming into the state, bringing goods, having absconded from the state of his former residence, 76. EXECUTION (see Garnishment in Execution; Sale) — differentiated from attachment, 652, 719, 731, 984. is final process, 984. by what writ, 910, 911. upon what property, 912-914. cannot be quashed after judgment by a defendant who was served with process, 916. stayed, when debt not due, 98, 884-6. aided by garnishment, 944-950. INDEX. 723 Tlie references are to sections. EXECUTIVE OFFICER (see Officer Executing the Attachment). EXECUTORS — not liable to attachment suit, when, 43. hold as legal custodians, when, 403, 405-6. liable to garnishment, when, 40S. not adjudged against, in any specific sum, when, 407. EXEMPTION — RELATIVE TO ATTACHMENT AND GARNISHMENT, in general, 719-745. of property not liable to execution, 719. not alienable, 723. not stated in attachment statutes, 720. applies to garnishment, 721. of property in public use, 723. not of property dedicated as homestead after attachment, 736. claimed before levy, 724-726. by notifying officer, 724. by pointing out articles, 725. claimed in court, 727, 728. to dissolve attachment, 727, how, 727. by whom, 727. how proved, 72S. claimed before judgment, 729, 730. not generalij' allowed after, 729. exceptional rule, 730. claimed before sale, 731-735. in ordinary causes, 731, 732. necessary, when, 733. claimed by garnishee for defendant, when, 737-742, 924. for himself, 737. set aside by garnishee, when, 929. against garnishee, should show the amount, 929. of pensions, 739, 740. wages, 741, 742. salaries, when, 742. not of attorney's fees, 742. relative to garnishment in a foreign state, 743-745. travels with the debt, held, 744. but not generally, 744, 745. EXERCISE OF JURISDICTION (see Jurisdiction). EXPRESSMAN — when not garnishable, 453. 724: INDEX. The references are to sections. P. FACTORIZING PROCESS (see Garnishee). FAILURE TO DELIVER ON CONTRACT — an exceptional ground for attachment, 28. FAITH AND CREDIT — given to judicial proceedings of other states, 645, 646. FEDERAL COURTS — follow state statutes, 630, 650. have no rights superior to tliose of state courts, as to attachment, 630. look to the construction of statutes by state courts, 63L are not foreign tribunals in relation to state courts, 650. have separate jurisdiction, 650. as to amendments, 89. FEES — may be allowed to garnishee, 941. in court's discretion, when, 942. must be alleged by complainant to recover them as damages, 1027. untaxed, 1030. not a proximate consequence of attachment, 1031, 1033. FILING THE PETITION — in general, 92-3. before issue of the writ, 92. FILING THE AFFIDAVIT, 110. FORCE IN ATTACHING, 298-300. FOREIGN ATTACHMENT — non-residence treated much like other grounds, 3. distinct from domestic in practice of some states, 3, 882-3. judgment not final, when, 881-6. FORFEITURE — of exemption right, 735. FORM — of petition, 77. of summons, 197. of forthcoming bond, 750. ♦ prescribed by statute, should be followed, 128, 160, 750. FORTHCOMING BOND — in general, 746-761. differs from dissolution bond, how, 748. made to the sheriff, 746, 749. does not divest the court of control, 747. destroy the lien, 748. form, 750. errors, 750. INDEX. The references are to sections. FORTHCOMING BOND (continued) — special contract, 751. plaintiff, the obligee, 752. joint and several, when, 752. given ah a right, 753. by part owner, 755. not defeated by replevy, 754. sureties on, cannot replevy, when, 993. as to part of res, 756. condition, 756-7. how released, 761. by personal judgment, 766. how affected by general judgment, 897. FRAUD (see Fraudulent Disposition of Property) ■ in contracting debt, 73-75. between plaintiff and defendant, 677. by collusion, 846, as to its denial by the debtor, 705, 709. of first attacher exposed by the second, 795. is ground for vacating attachment, 797. is ground for arresting judgment, 928. invalidates sale, 873. FRAUDULENT DISPOSITION OF PROPERTY — in general, 57-72, statutory provisions, 57. inferred from circumstances, 58, 66, 70-73. presumption of, when, 58. withholding property, 58. concealment of property or money, 59. convejing to purchaser with knowledge, 58. intention to remove property, 60. removal of property, 61-64. by a partner, 61. to pay debt, 61, 62. • when enough is retained to pay debts, 62-64. by fraudulent assignment, 60, 65, 66, 71, 73. with preference, 65, 66. by being about to assign, 71. by fraudulent mortgages, 67. how inferred, 68. by conveyance, 69. by simulated sale, 69. animus of the debtor, 70. purpose to hinder and delay creditors, 71. indicated by interest retained by the debtor, 263. by preference to creditors where inhibited, 263. 725 726 INDEX. The references are to sections. FRAUDULENTLY CONTRACTING THE DEBT — an exceptional ground, 73. when part honestly contracted, 74. not by the renewal of the debt, 74. what constitutes fraudulent contracting, 75. FRAUDULENTLY INCURRING THE DEBT — by false pretenses, etc. , 74. FRACTIONS OF A DAY (see Day). G. GARNISHEE (see Assignment Relative to Garnishment ; Charging the Garnishee ; Corporations as Garnishees ; Custody of the Law Relative to Garnishment: Exemption Relative to Attach- ment AND Garnishment; Garnishee's Disclosure; Garnishment as to Liability op Property and Credits; Garnishment Bond; Garnishment in Execution ; Judgment in Garnishment) — may pay indorser after summons, when, 386. his garnishment may be set aside on motion, when, 533. ^ is not a mere witness, 537, 949, 9o0. is personally sued, 470-1. by the plaintiff as assumed subrogee of defendant, 477-8. is protected, 545. may be relieved in equity, when, 953. may move to dissolve attachment, when, 680. priority of garnishment, 807-813. guilty of laches, 934. may defend against a suit by tlie attachment defendant, how, 951-4. by pleading in abatement, what, 951. bar, what, 954-963. liable to defendant if he has paid to the plaintiff voluntarily, 959. surrendered property to the plaintiff voluntarily, 959. held liable for note after payment under order, 965. to assignee after payment for not disclosing assignment, 966. may plead judgment in defense of note suit when garnished before notice of assignment, 966. is not liable to second payment when not in fault, 966. is liable to mortgagee when mortgage was not disclosed, 967. is estopped from pleading payment, by his collusion with garnishor, 966. may have action against the garnishor, 1036. GARNISHEE'S DISCLOSURE — not to criminate himself, 505. how made, 507-13. INDEX. 727 The references are to sections. GARNISHEE'S DISCLOSURE (continued) — in writing, 507. orally, where, 507. made to sheriff, where, 508. personally, oOS, responsively, 509, 513. on information, 510. belief, 510. not when defendant misnamed, 511. required to be more specific, when, 513, taken as true, 514-19. presumed true, 514. relative to fraud, 516. further proof, 517. not taken as confessed, when, 518. relative to promissory note, 519. debt due a firm, 379. a note holder, 386. an assignor, 419. stating defenses of himself, 520-529. as if sued by defendant, 520-21. when holding defendant's note not due, 533. stating his claim for damages, 528. and pleading offsets, 525, by joint garnishees, 526. claims of third persons, 527-8. himself, 529. stating defenses for absent defendant, 530-538. what should be stated, 530. not technical objections, 531. as to irregularities, 533. amendment to, 533-8. for what cause, 533, liberally allowed, 534. within court's discretion, 535. second application for, 536. upon new information, 538. effect given to, 537. final, if not traversed, 539. traverse of, 539-551. how issue made, 540. evidence, 541. burden of proof, 542, 544. qualified admissions, 543. relative to assignment, 544. record of main case, 546. effect cf payment to defendant after service, 547, 549. 728 • INDEX. The refei^ences ars to sections. GARNISHMENT, AS TO LIABILITY OF PROPERTY AND CRED- ITS— of property and debt in general. 356-391. of property in garnishee's hands, 356-3G1. held by right, 356. as security, not liable, 856. temporarily, not liable, 356. subject to defendant, 357. when defendant cannot recover, 357. with privity, 358. not of land, 360. proceeds of land, 360, 368. for rent, when, 361. liability of credits, 362-4. payable in money, 363. chattels, 362. under judgment, 363. due at time of summons, 363. answer, 363. not due but certain, 363. for which check given, 364. liability not of trust funds, 365-371. deposits with clerk of court, when, 368. attorney by client, 368. agents for specific purposes, 3()8. liability of money deposited, 386, 367, 368. collected for others, 368. ■ of property as security, 368. of excess above a lien, 369, 870. not when obligation conditional, 372-6. debt payable to third person, 375. of judgment debt, 376. of partnership property, 377-9. joint debt, 379. promissory notes, 380-6. of non-resident third possessors, 387, 391 , 392. of firm, through resident member. 390. of corporation, through resident agent, 390. chartered in two states, 391, 392. not of non-resident temporarily in the state, when, 891. common carriers, when, 891. of prisoner's effects, 410, 411. assigned property, see Assignment Relative to Garnishment. GARNISHMENT BOND — when required, 483. action on, when plaintiff is nonsuited, 1007. INDEX. 729 The references are to sections. GARNISH]MENT IN EXECUTION — in general, 944-950. notice of should contain, what, 944. may be substituted by creditor's bill, wliere, 945. may be followed by suit against garnishee, if he deny, 946. defense by garnishee, 947. against railroad company, 947. not against co-defendant, when, 948. as to choses in action, 948. examination of garnishee, 949, 950. GROUNDS FOR ATTACHMENT — in general, 26- ("(5. non-residency, 82-43. absence and non-residency, 44-49, absconding, 50-56. concealing, 50-56. fraudulent disposition of property, 57-73. exceptional, 73-76. stated in detail, 27, 28. inadequacy of ordinary process, 26, 39, 48. related, 30. on ex jjarte showing, 31, 43. GUARDIANS — not garnishable, 409. H. HEIRS — not liable to attachment suit, when, 43. HOMESTEAD (see Exemption Relative to Attachment and Garnish- ment) — not dedicated after attachment, 736. I. INDEMNITY BOND — in general, 237-245. may be required, when, 237. effect as to damage suit, 238. duty of officer, without the bond, 239. common-law right, without the bond, 240. till furnished, officer may delay, when, 341. not delay, when, 242. does not relieve from duty, 343. suit upon, 245, 969, 976. as to sureties, 245. 730 INDEX. The references are to sections, INFERENCE — drawn from facts proven, 46. as to fraud, 72. INJUNCTION — against garnishing in foreign state, 743. IN REM (see Prooeedings in Rem). INSOLVENCY — of debtor relative to attachment, 295. INSURANCE COMPANY — not garnishable on policy of life insm'ance, 373, garnishable for loss by fire, when, 374, its agent not garnishable, when, 387. INTENTION — to remove property, 60. to defraud creditors, 72. to remain in the state, 37. i out of the state, 44. INTEREST — when chargeable against garnishee, 933-3. INTERMINGLED GOODS — in general, 253. may be separated by the attaching officer, 309. INTERROGATORIES TO THE GARNISHEE — in general, 487-491. their character, 487. should be specific, 488. as to time, 490. as to amendment after answer, 491. return after service, 494. exceptions to, 505-6. as to declarations to the garnishee, 494. INTERVENTION — when unnecessary, 778-786. by lienliolder, 781-3. when interest requires, 785, 798, 822. in general and limited proceedings in rem, differentiated, 787-8. by junior attachers, 790-98. attachers when statutory, 790. not to expose irregularities in senior's attachment, 792, 805. how answered, 793. how maintained, 794. because of fraud, 795. to defend against first attachment, when, 795. by claimant, 816-826. must be ready for trial, 819. INDEX. 731 The references are to sections. INTERVENTION (continued) — by consignee, 822. by statute authorization, 832. by assignee, 840. by purcliaser, 848. on what evidence, 849. INVENTORY — of seized crop, 285. J. JOINDER OF PLAINTIFFS — not if each has a separate claim, 84. JOINT DEBT — when garnishable, 379. JOINT DEBTORS — suit against, 252. JUDGMENT (see Default; Judgment Nisi)— with privilege expressed, 893. implied, 893. confessed — effect on junior attachments, 811 as to excess above the res, 894, 904. amended nunc pro tunc, 894. general, where, 894. personal and general, 895. satisfied, 894, 896. effect on the forthcoming bond, 897. perfecting the lien, 898. not perfecting the lien, 899. formally against the res, where, 900. form, relative to the privilege, 893, 903. of restoration, 903. appealed. 905-907. execution of, 908-914. by venditioni exponas, 908-910. h J fieri facias, 911. confined to defendant's interest, 913. as to partnership property, 913. how limited, 914. may be collaterally attacked if statutory requisites have been neg- lected, 887. cannot be impeached by sheriff, when, 971. in rem against attached property, 659. for defendant in the personal suit, 917 enables him to claim damages for wrongful attachment, 917. is equivalent to dissolution of attachment, 93. of restoration, 918. to claimant, does not settle his title, 919. i-~>-J INDEX. TJie references are to sections. JUDGMENT (continued) — inter partes, is final as to what was settled by it, 1023. in rem in attachment, is final as to the defendant who owned the res, 1025. of nonsuit, is no bar to a suit for exemplary damages, 1024. on demurrer, is no bar to a suit for exemplary damages, 1024. JUDGMENT IN GARNISHMENT — after judgment in attachment against defendant, 921. not after personal judgment only against defendant, 921. not joint against both garnishee and defendant, 921, 929. when conditional, 921. reasons for, 921, 922. must recite tlie judgment against defendant, 922. amount of, 923. specifically stated, 925. as to property held, 923. as to surplus, 923, as to irregularities, 924, 956, 957. how affected by laches, 924. to be paid, when, 925. wlien void, 926, 928. when voidable, 928. released, when judgment against defendant is reversed, 926. misnomer in, 927. in favor of defendant virtually, 929. is premature, when, 930. and may be set aside, 930. is released by defendant's bond, 931. with interest, 932, 933, 935. without interest, 934, 936. includes income from property held, 932. with costs, 937-9. when costs are allowed to the garnishee, 938, 940, 941. counsel fee is allowed, 938, 941. compensation is allowed, 941. may be pleaded in abatement, when, 951. bar, when, 954-963. to suit on note assigned without notice, 966. will not protect from suit by mortgagee if the mortgage was not dis- closed, 967. JUDGMENT NISI — rendered when there is no jurisdiction to render final judgment, 622. bond by plaintiff to restore within a year and a day, if, 884-6. the debtor, within the time, may give bail, and defend, 883-6. under the custom of London, 881. INDEX, TJie references are to sections. JUDICIAL SALE (see Purchaser) — of attached property is without warranty of title, 868. under a void writ, 856. when provoked by owners, 87L of property condemned to the government, "^T,'. how affected by error and fraud, 873-4. JUNIOR ATTACHMENTS (see Lien of Attachment). JURAT — signed by officer, 108. JURISDICTION — in general, 596-654. degrees of, 596. different meanings of, 597. exercised ministerially, when, 599. as to debt in attachment cases, 600. as to remedy by attachment, 601. as to custody of property, 603-3. to order publication, when, 604. to hear and determine, 605, 864. over the debtor, 606-614. upon service or appearance, 606. not by publication, 607. no exception, 608-612. in divorce suit, 608-9. in suit where the claim exceeds the res, 610. in nominal attachment, 611. not over the debtor because over his property, 613, 614. over the debtor's property, 615-624. seizing and holding necessary to, 615. seizure not statutory notice, 616. notice essential to jurisdiction to render judgment, 617. in general proceedings in rem, 617-619, 887, 888. in admiralty, 618. not rendered unnecessary by seizure, 619. to sell perishable property, 620, 621. to render judgment nisi, 622, 623, 881. exercise of, 624. errors in, 628. of ancillary suit, 90. as to the amount of the claim, 90. depends upon compliance with statute, 625-629. not on presumption of compliance, 625, 626. of federal courts, 89, 630-633. collateral attack, 634, 639, 887, 888. in ejectment suits, 641. 733 734 INDEX. The references are to sections. JURISDICTION (continued) — special, in attachment, 685-643. in both superior and inferior courts, 635, must appear of record, 637. general — exercise of, 638. service or publication or appearance should be of record, 639. recited in judgment, when, 639. depends on record showing publication, when, 6d0. as to county, 467. of suits in different counties, 643. within territorial limits, 644-653. as to person and property, 644, 648. property when debtor absent, 645. of foreign courts, 646. records assailable, 647. of state government, 649. limited to its own bounds, 651. of federal courts as to foreign judgments, 650. may inquire into the jurisdiction, 653. in gai-nishment, 654. excepted to, by garnishee, 503. exceptions to, in general, 656-658. not admitted by the removal of the case to another court, 664. not establislied by its assertion in the judgment, 860. as between the plaintiff and an intervener, 826. not assured to the purchaser at an attachment sale, 864. cannot be over property in two courts at once, 983. to decide question of possession, 986. K. KEEPER — holds under the sheriff, 554. dispensed with, by order of court, 556. usually appointed to keep attached goods, 561. receipts to the sheriff for property intrusted to him, 562. is the bailee of the sheriff, 563, 568. has no possession such as would enable him to dispose of the property, 564. abusing his trust, 565. relative to the attachment lien, 566. when he is the defendant's employee, 569. when the defendant's wife, 570. when he is mortgagee of the property attached, 571. estopped from claiming, 572. INDEX. 735 The references are to sections. L. LACHES — of the defendant, 357. of assignee, 431. of garnishee, 924,' 967. LAND — how attached, 278-395, 303. should be described in attachment return, 278-280. not reached by garnishment, 360. recorded sale of, as to effect on attachment, 850. as notice, 851. knowledge of sale without record, 853. possession given without record, 853. transferred to defeat creditors, 854. deeded in trust, 854. deed of conveyance void, when, 855. is not presumably damaged by attachment, 1011. when sale prevented by attachment, damages allowed, 1011, LANDLORD — may attach for rent, where, 257-8. LETTER — notice by mail to absent debtor is not service, 340. LEVY (see Attaching). LIABILITY TO ATTACHMENT (see Garnishment as to Liability of Property and Credits) — in general, 27, 246-275. of property owned by debtor, 247. possessed by debtor. 247, held in trust, not attachable, 247. controlled, tliough in other hands, 248. fraudulently transferred, 249. in partnership, 249-254. interest of a member, 250. in suit against a partner, 250. firm, 251, 252. insolvent, 252. of non-resident partner, 253. of joint debtors, 252. in common, 253. of domestic corporation, 252, indivisible, 253. intermingled, 253. of married woman, 254. interest in land, 281. 736 INDEX. The references are to sections. LIABILITY TO ATTACHMENT (continued) — of property held by third persons, 255. may be temporarily detained, 255. not directly attachable, 255. when ownership doubtful, 256. in transitu, 256, 267. held by lessee, when not, 257. when fixtures liable, 258. rolling stock of railroad companies, 258. for property assigned, see Assignment Relative to Attachment. in custody of the law, see Custody of the Law. consigned, see Consignment of Property. LIEN OF ATTACHMENT — is created and enforced bj' the attachment proceeding, 1, 157. in what way, 12. by what right, 12, 13. under what requirements, 15. by attaching notes and accounts in some states, 385. is specific though hypothetical and assumed, 16, 857. is perfected by judgment, 17, 893-898, 900-1. retroacting to its creation, 17, 18. does not dislodge prior liens, 18, 779-781, 786, 789, 838, 856. is superior to a lien for advances not recorded, 835. is inferior to the lien of a creditor holding debtor's property in pledge, 835. is unnecessary when the creditor has a conventional lien, 19. is secured in any way, 20. is exceptional when employed in collecting secured claims, 21, 22. is strictly limited by statute, 23. is created on land by constructive seizure and notice, 278-9, 281. is not created by attaching land sold to defeat creditors, if not fol- lowed by other proceedings, 854. is not created in suit against a firm, when, 890. dates usually from the levy, 560. in some states from time of registry, 560. lost by loss of possession of the thing attached, 566. preserved, though the res is held by a mortgagee as keeper, 571. though defendant holds the res, under the sheriff, 574. how affected by dissolution bond, 765. assignment, 844. is kept alive by appeal, 906. does not affect the excess of value of the res over the amount of the judgment, 369, 370. as to ci'editors of partners, 422. is not affected by the defendant becoming insolvent, 678. of junior attacher is created by laying his writ on the first seizure, 290, 790. INDEX. 737 The references are to sections. LIEN OF ATTACHMENT (continued) — of junior attacher, as to its rank, 790. is equal to the senior's in some states, 791. relates back from judgment to levy of attachment, 799. ranks usually by dates of levies,. 799, 801, 806. of levies on the same day, equal in some states, 800, 803, 814-15. of simultaneous attachments, 814. as to priority in successive levies, 803. of service, 804. when exemption is waived, 804. affecting amendments, 805, of garnishment, 807-813. takes rank in the order of service, 809. is perfected by judgment, 810. is affected by amendments, how, 813. LIEN OF GARNISHMENT (see LiEX of Attachhent). M. MALICIOUS ATTACHMENT (see Damages Against the Attachinq Creditor). MARRIED WOMAN — her domicile that of her husband, 38. liable to attachment suit when doing business in her own name, 254. as sole trader, 254. ma}^ be garnished in a suit against lier husband, 949. MARSHAL (see Officer Executing Attachment) — is an officer of his district rather than of the court, 208. may be sued on his bond, for breach, by any one injured, 977. attaching by him is an official act, and a breacli of the bond, if wrong- ful, 978. liable to lienholder for dispossessing Jiim, 980, 981, 987. liable to action by replevin, 983. MISNOMER (see Name). MORTGAGE — lien, relative to attachment, 829-839. unrecorded, no hindrance to attachment, 827. unless known to plaintiff, 827-8. merely contemplated, is no hindrance to attachment, 829. as to presumption of notice, 830. of goods deemed fraudulent if the mortgagor be allowed to sell, 837. subject to contestation, 836. void, if mortgagor still allowed to sell mortgaged goods, 67. void, 837. consummated, is not affected by subsequent attachment, 838. 47 738 INDEX, The references are to sections. MORTGAGE (continued) — by an insolvent, in excess of the debt to be secured, is a fraud on other creditors, 67. to a creditor in excess with advances by him to the debtor, is fraud- ulent, 67. allowable under cii-cu Distances stated, 67. without consideration, 68. by a debtor to secure his partner, 251. held by an attorney who claims a lien, 523. foreclosed in attachment proceeding, 839. MORTGAGEE (see Mortgage) — in possession, not divested by attachment, 234-6, 255-6, 786. may recover of sheriff for dispossessing him, 974, 981. need not intervene in an attachment suit, when, 781-4. MORTGAGOR (see Mortgage) — may be sued jointly with another, when, 370. after condition broken, 375. may plead exemption, when, 727. MUNICIPAL CORPORATION (see Corporations as Garnishees). N. NAME (see Signature) — may be corrected in a petition, 86. omission of, 140, 141, 223. of guardian substituted for that of minor in petition, 87. when erroneous but not misleading, 927. not to be corrected in affidavit and bond, by the garnishee, if defend- ant be present, 927. NATIONAL BANK — not liable to attachment before judgment, 231. insolvent, 230, 231. NEWSPAPER — publishing notice to absentee, 346 NOMINAL ATTACHMENTS, 611. See JURISDICTION. NON-RESIDENCY — a general ground for attachment, 32, 49. a constitutional ground, 32. meaning of the term, 33, 34. temporary presence of debtor, 35, 41, 44. a question of fact, 36, 44. intention, as to, 37, 44. domicile, 38, 39. of wife, 38. relative to citizenship, 39. business place, 40. INDEX. 739 The references are to sections. NON-RESIDENCY (continued) — of decedent, 43. inferred from absence, when, 44, 45. other facts, 46. removal from the state, 44. absence of fixed abode, 47. as to non-resident partner when resident served, 379. NOTE (see Promissory Note). NOTICE (see Publication Notice) — in an ancillary proceeding, 199, 200. to the tenant of attached land, 279. to the person in charge of a growing crop, in attaching it, 285. by posting, 280. to the principal defendant in garnishment proceedings, 486. to the garnishee, when the cause is removed, 546. when not questionable, 662. relative to mortgage, 827-839. essential to jurisdiction, 350, 596-634. cannot be questioned by defendant after appearance, 662, 666, 916. to plaintiff, of motion to dissolve, 685. of unrecorded mortgages, 827, 828. presumed, as to attachment, when mortgage taken subsequently, 830. of lien for advances should be given to attaching creditor, 835. of record, 851-853. as affecting liens, 856, 857. to all persons, in general proceedings against a thing, 880. must precede default, 880. by proclamation, 881. essential in proceedings in rem, 887, 888. of garnishment in execution, 944, left at domicile of garnishee, 958. NULLITY — of judgment, 874. of sale, 874. o. OATH (see Affidavit for Attachment). OFFICER EXECUTING ATTACHMENT — must be authorized by valid writ to make levy, 212. need not have the writ literally in hand when making levj', 212. is protected by the writ when it is valid, 232-6. indemnity bond, 237-245. given to sheriff, though writ issued to " an}- constable," 237. his duty in attaching, 292-308. should heed notice of exemption, 724-5. should disregard it if known to be unfounded, 726. 740 INDEX. The references are to sections. OFFICER EXECUTING ATTACHMENT (continued) — his authority to sell, 875. may be sued on his official bond for attaching without authority, 968. who has released attached property cannot defend his act by impeach- ing the attachment judgment, 971. may defend his act by showing that the defendant was not the owner, 971. as constable, renders the sureties on his bond liable for his tortious at- taching, 979. is entitled to costs out of property attached and judged liable, 1035. OFFICERS (see Public Officers). OFFSETS — may be pleaded by garnishee, 525. OMISSION — of unnecessary words in affidavit is harmless, 140. of unconstitutional requirements of statute does not invalidate affi- davit, 140. of a name, wholly or in part, 140, 141, 223. of date, how supplied, 141. in affidavit, may be cured by the petition, when, 147. of statutory requisites is fatal, 148, 213. ORDER OF PUBLICATION — form should be according to statute, 340. made when sheriff returns that defendant is not found, 339. should inform the absentee that his property is attached, 339. may be published as notice. 340. may be denied, when, 323. as to description of attached property, 340. P. PARTIES — interested, may be cited, 824. PARTNER — as creditor, 377. as debtor, 378. surviving, doing business in firm name, 379. may move to dismiss attachment, 706. PARTNERSHIP — as ci-'editor, 377. when some members of the firm are non-residents, 379, 390. names in attachment writ, 215. suit against, when one partner has absconded, 53. when one partner has fraudulently sent property of his own out of the state, to defraud, 61. the interest in, of a partner, may be attached, 250. may be sued on grounds applicable to all the members, 351. INDEX. 741 Tlie references are to sections. PARTNERSHIP (continued) — property, as to seizure for debt of a member, 251. attached as wholly belonging to the partner defendant, 251. as to non-resident partner, 253. PARTNERSHIP PROPERTY — when the firm is bankrupt, 843. has no lien created upon it by levy on a partner's property, 890. assigned by a partner and assignment ratified by the firm, 845. not attachable in a suit against a partner, 975. in execution, 918. PATENT ERRORS (see Quashing for Patent Errors). PENSION — not attachable before payment, 739, 740. PERISHABLE PROPERTY — such as fruit, vegetables, fish, meat, etc., 285. sold by order of court, 588, 620. on application, 589. after the plaintiff's death, 285. its proceeds, the res of the suit, 590. rights of the defendant protected, 590-2. the court, as judicial custodian, orders the sale, 588. PETITION — in general, 77-93. form, 77. prayer, 77. essentials, 78, 81. should agree with aflfidavit, 79, 82. how one aids the other, 80. when a substitute for the aflSdavit, 81, 82, 93, variance, S3. amended, when, 84. as to cause of action, 85. clerical errors, 86. parties, 87. as to rights of defendant, 88-91. when the court has jurisdiction, 89. under federal statute, 89. as to personal suit, 90. in suit by surety, 91. when filed, 92. basis for successive attachments, 93. in suit for dauiages for wrongful attachment should aver want of statutory grounds, 1013. malicious attachment, what should be alleged, 1018. on attachment bond, what should be alleged, 1007. must contain averments of the costs, fees and expenses claimed as damages, 1027. 742 INDEX. The references are to sections. PLEDGES TO RESTORE (see Judgment Nisi) — given by plaintiff under judgment not final, 206. POSSESSION (see Custody of the Law ; Jurisdiction ; Keeper). PRAYER FOR WRIT OF ATTACHMENT, 77. PREFERENCE TO CREDITORS — is fraud in some states, 263. by collusion, is fraud, 846. PRESCRIPTION — pleaded by general appearer, 661. PRIORITY (see Lien) — of levying attachment, 799-806. in service of the writ, 294. where priority is in the order of the delivery of writs to the sheriff, 98, first levy will not give priority if petition has not been filed, 93. in distribution of proceeds of sale, 915, 916. of garnishment, 807-813. maintained by first attacher by amending petition after another cred- itor had created a lien, 91. PRISONER'S EFFECTS — whether the officer holding them may be garnished, 310, 311. PRIVIES — bound by the judgment, 860. PRIVILEGE — adjudged upon attached property, 893-904. PRIVITY — of interest, 358. of contract, 358. PROBABLE CAUSE (see Damages Against Attaching Creditor). PROCEEDINGS IN REM — in attachment suits personal in form, 5-8. against what is attached in the garnishee's hands, 9, 479. limited to the debtor's interest, 10. and general differentiated, 10, 11, 867. general, are against a specific thing, 111. are not to declare personal status, 11, 608-9. as to description of seized property in the notice, 340. require notice, 345, 347. in which seizure Is notice to the person divested, in a limited sense,. 347, 616. presumptively, but not in attachment cases, 348, 625-9. require that notice be given, to sustain the right to render judgment,. 617. 632. can be against onlv what is in court, 554, 594-5, INDEX. 743 Tlie references are to sections. PROCEEDINGS IN REM (continued) — how affected by the bonding of the res, 767. general, and prosecuted to judgment, conclude non-appearing lien- holders, 787-9. in which the claimant is an actor, 768. limited, and prosecuted to judgment, conclude only the notified owner, 789, 867, 1025. general, by libelant to have property condemned, 873. who becomes owner and sells as owner, 872. resulting in judgment by default against all persons, 880. limited, can result in the default only of the person or persons desig- nated in the pleadings, 880. held, judgment open to collateral attack for want of notice, 887. general, may be under state law, 991. caimot be instituted in a federal court against property attached in a state court, 983. by attachment, being limited, do not affect lien-holders, 989. PROCEEDS (see DisTRiBunoN of Proceeds; Perishable Property). PROCESS (see Summons; Writ of Attachment) — ordinary being inadequate, attachment allowed, 26, 29, 53. avoided by the debtor, a ground for attaching, 50, 51. mesne, illustrated by attachment, 984. final, illustrated by execution, 984. against the debtor personally, 197-203. against the debtor's property, 204-236. PROCLAMATION — required before default, 206. PROPERTY ATTACHABLE (see Liability to Attachment). PROMISSORY NOTE — when levied upon and taken into possession by the officer, 274-5, 385, when reached by garnishing the maker, 381, 519. when not reached by garnishing the makei', 380, 883-5. paid under garnishment, 381. when not transferable, 384. held by depositary, 385. impounded by attachment, 385. ^ novated, 386. not due and held by the garnishee as agent of the defendant, 522. owned by the debtor's wife, 275, when collectible of garnishee by second indorsee after payment to gar- nishor, 965. may be defended against, by maker's pleading judgment in garnish- ment before notice of assignment, 966. PROTECTION OF THE OFFICER (see Indemnity Bond; Writ of Attachment). T44 INDEX. The references are to sections. PUBLICATION NOTICE — in general, 339-355. order for, 339. form of, 339, 340. when issued, 339. i published as notice, when, 340. description of property attached, 246. contents, 341. distinguished from summons, 343. not constructive service, 343-5. offers " day in court," 344. required by statute, 345, 847-8. how published, 346. not rendered unnecessary by seizure, 347, 612, 616. sufficient, when, 349. slightly defective, 349. not amendable to obtain jurisdiction, 349. defects waived by appearance, 916. within the time stated in the order, 350. jurisdictional, 350, 596-634. must be of record, 351-3, 637, 639, 040, 646. no effect without levy, 354. different from summons, 355. essential to complete jurisdiction, 596, 604, 617-624, 629. is not a substitute for service, 607-611, 6l8. necessary in garnishment, 486, 654. PUBLIC OFFICERS — not garnishable, 428-443. PURCHASE — attachment considered as a purchase, 853. PURCHASERS — in general, 848-875. buying before levy of attachment, 848-855. may intervene to claim, 848. must prove his right, 849. by recorded deed, 850, 853. the object of the record of sale, 851. knowledge of sale by attaching creditor, 853. attachment as purchase, 853. equitable title, 853. fraudulent conveyance, 854. purchase, 424, 855. as to the person defrauded, 855. buying before amendment of attachment, defeats, 856-863. lien created, 856-8. illustrated, 859-862. INDEX. T45 The references are to sections. PURCHASERS (continued) — buying at attachment sale, 863-867. when statute has been followed, 863. must see to the jurisdiction, 864. when judgment may be attacked, 865-6. when action against property in general, 867. limited, 867. cannot have attachment set aside as a cloud upon his title, when, 976. not warranted, as to title, 868-870. how far protected, 869, 870. falsely induced to buy, 870. at sales provoked by creditors, 871. owners, 871. by the government, as owner, 873. how affected by error and fraud, 873. when sale is null, 874. as to the authority of the selling officer, 875. as to stipulation of warranty, 876. as to damages, 877, 976. as to cloud upon his title, 976. Q. QUASHING FOR PATENT ERRORS — appeai-ance for, 556. court's authority, 672. to take application in chambers, 673. rule to dissolve, 678. new evidence inadmissible, 673. as to part of attached property, 673. not for clerical errors, when, 673. motion by defendant, 674. verified, when, 674. not if defendant has assigned, 674. agreed to sale, 674. has no right to possession, 674. motion by surety, 675. anyone interested, 676. subsequent attacher, when, 677. intervenor, when, 677, 681. assignee, 678. not by lien-holder, 679. garnishee, when, 680. not because defendant is insolvent, 678. on the judge's motion, 682. 746 INDEX. Tlie references are to sections. QUASHING FOR PATENT ERRORS (continued) — on motion of the defendant, 686. for defects of petition, 687, for want of statutory authorization, 687, for defects of summons, 688. affidavit, 689, for uncertainty, 690. bond for attachment, 691-4. writ, 695. levy, 696, 697. return, 697. for disregard of statute, 698. after motion, amendments allowed, when, 699. on evidence beyond the record, see Dissolution on Evidence, 700-710. R. RAILROAD COMPANY (see CoivraoN Carrier). REAL ESTATE (see Land). RECEIPTOR (see Keeper). RECEIVER — not appointed to aid attachment, where, 103. as custodian of attached property, 400, 577, 578. when creditors cannot oppose his appointment, 847. when his appointment is void, 263, of partnership property, 378. for foreign corporation, 468, RECONVENTION (see Damages Against the Attaching Creditor). RECORD — attachment affidavit is part of, 110. should show notice to the debtor in attachment, 351-353, 637-640, 046, 851-853. of principal case in traverse of garnishee's answer, 546, as to mortgages, 827-839. of assignment, 265. RECOUPMENT (see Reconvention). REDEMPTION RIGHT — of mortgagor may be attached, 974. RELEASE — ' of attachment by the plaintiff, 470. of part of attached property, 831. REMOVAL — of cause to federal court by an intervenor, 826. is no admission of jurisdiction, 664. relative to garnishment, 473. INDEX. 747 The references are to sections. REMOVAL (continued) — of the debtor from state or county, 53-55. to avoid creditors, 55. of property from the state by debtor, 27, 61-63. into the state, to defeat creditors, an exceptional ground for at' tachment, 28. RENT — attached, when, 146. to be accounted for by one evicted from real property, 877. REPLEVIN — by owner of attached goods, 823. by defendant precludes denial of service, 664. does not lie, by an intervener, against the sheritr after judgment against him, 976. lies, by third person, to recover pi-operty wrongly attached, 982. must be in the court holding the attached property, 982-4, 987. is the usual resort in the state courts to regain attached property, 988. is not allowed to sureties on forthcoming bond against officer for levy- ing execution, when, 992. REPLEVY BOND — differs from forthcoming bond, how, 760. RES JUDICATA (see Judgment; Jurisdiction) — in attachment judgment depends on compliance with statute, 860-62, 887, 888. RESTORATION — order for, 903. is the right of the successful defendant, 918, to claimant, does not affirm his title, 919. RETROACTION — from judgment to levy of attachment as to legality of the lien, 17, 18, 799, 898. time of service upon the garnishee, 18. of the recording of a deed to the date of the contract, 850. does not affect attachment lien, 850. RETURN — to service of interrogatories on garnishee, 494. as to time of service, 496. may be set aside, when, 498. RETURN TO WRIT OF ATTACHMENT — to the court whence it emanated, 214. should show whether it has been executed, 312-317. how it was executed, 312, 313. that defendant's property has been attached, 314-17. the time when the lien began, 801, 748 INDEX. The references are to sections. RETURN TO WRIT OF ATTACHMENT (continued) — should describe what is attached, 278-79, 31G-321. water-craft, how, 318. store-goods, how, 319. with certainty, 320. should report the value of attached property, when, 321. as to the requisites, in general, 322-331, on whom served, 322-3. presumed correct, 323. showing copy left, 324. exact time of levy, 325, on or before day specified in the writ, 326. when unnecessary, 326. indorsement on, as evidence, 326. where lodged, 327, as to county, 327. by officer who did not make the levy, 328. signed by officer, 329. when service not effected, 330. • to second attachment, 331. amendments to, 332-338, before filing, 332. after filing, 332. not after judgment, 333. presumption favors return, 334. omitted facts not presumed, 335. proves what was attached, 1014. when conclusive, 336. not contradicted by parol evidence, 337. may be contradicted, when, 338. that defendant was not found, 339. showing levy upon land, in general, 278-295. necessary to the completion of levy upon land, 278-280. should describe the land attached, 278-9. should report notice to the tenant, 279, 324. copy left with the tenant or person in possession, 303. who is the owner, 280. that advertisement has been posted, if so, 280. cannot be made after the expiration of the writ, 295. s. SALARIES — of public officers generally exempt from attachment and garnishment, 441-2. SALE (see Purchaser) — when treated as an assignment, 263. of absent debtor's property by trustees, 882. auditors, 883. INDEX. 749 The references are to sections. SALE (continued) — after a year and a day, 884-5. after six months, 884. after the statutory delay, 886. order, after judgment, to sell, 908-911. may be under general execution if judgment be personal, 912. must be confined to attached property if judgment be not personal, 912. of partnership property, 913. may be set aside for fraud, 913. when judgment is joint against defendant and garnishee, 929. limited to sufficient quantity, 914. the amount of the judgment agaii—t garnishee when execution is against him, 929. how advertised, with description of property, 914. confirmed by the court, 914, 916. failing, effect on the attachment, 918, 946. of the net income of a railroad company, 948. not by execution against receiver, but court orders payment, 948. SCHOOL DISTRICT — not garnishable, 488. SEAL — to attachment bond, 172. of wrong court to attachment writ, 224. SECRETING — by the debtor to avoid process, 54. of his property, 57, 59. SEIZURE (see Attaching ; Jukisdiction ; Notice). SERVICE (see Summons ; Writ of Attachment). SHERIFF (see Officer Executing Attachment) — gives his official bond to insure performance of his duties, 977. cannot impeach judgment when defending for releasing attached property, 971. may defend suit for releasing by showing that defendant was not the owner, 971. cannot defend by pleading the fault of his deputy, 971. is not liable to plaintiff when misled by him, 971. must sue garnishee for unpaid debt, where, 972. is not liable to replevin suit by an unsuccessful intervenor, 976. for fees and expenses of defendant, when, 971. is liable to mortgagee for dispossessing him, 974, 981. SHERIFF'S BOND (see Officer Executing Attachment). SIGNATURE (see Name) — of affiant, 108, of officer to jurat, 108. of one plaintiff omitted when there are two or more plaintiffs, 141. 750 INDEX. The references are to sections, SIGNATURE (continued) — of plaintiff to attacliment bond, 183. of surety to attachment bond, 186. by firm name, 187. of officer to attacliment return, 329. SIMULTANEOUS SERVICE — when two or more writs are served at once, 800. garnishments are made together, 807. SITUS — of a debt, 744-5. of sliares in stock corporations, 459, 464-8. not affected by corporation's doing business in several places, 459. determines where they are attachable, 464. may be reached by garnishment, 405. SOLE TRADER — though a wife, is liable to attachment suit, 254. may be garnished by the firm name assumed by him, 379. STAKE-HOLDER — is a term applied to a garnishee, 476, 583. may be garnished in a suit against either of the persons betting, 374. STATE — is not garnishable, 428-432. officers are not garnishable as such, 428-432. ^ STATUTES (see Construction of Statutes) — nearly uniform in main provisions as to attachment, 1, 32, 50, 57, 199. exceptional, 1, 22, 73, 76, 101. prescribe the conditions in authorizing the remedy, 26-31. employ different terms to designate non-residents, 33, 34. limited to debtor, not extended to his executor, etc., 43. how qualifying "absconding debtor," 51. vague as to the phrase " about to abscond," 56. differ as to preference given to creditors, 65. federal, as to amendments, 89. limiting jurisdiction to certain amount of debt, 90. relative to equity in aid of attachment, 103. must be followed in laying attachments, 112, 116, 122, 698. as to counter-claims, 121. prescribing forms, 129, 160, 750. as to alternate allegations, 135-7. fixing amount of attachment bond, 175. relative to personal service, 199. authorizing clerk of court to issue writs, 210, 1004. as to issuance of attachment on Sunday, 217. as to national banks, 231. as to choses in action, 275. I^^)EX. Y51 The references are to sections. STATUTES (continued) — conferring special jurisdiction, 627, 629. of states binding on federal courts, 630-632. prescribing what shall be evidenced by court record, 639, 640. void, if authorizing extra-territorial jurisdiction, 651. BB to exemption relative to attachment, 729, 730, 745. authorizing junior attachers to intervene in first suit, 790. sale -of attached property by trustees, 883. auditors, 882. requiring a "stay order" in attachment judgment, 885, 886. authorizing general proceedings against property in state courts, 990, 991. reconvention, 995. STAY ORDER — in insolvent proceedings, as to attachment-lien's enforcement, 844. upon judgment for debt when it is not due, 98. upon judgment nisi, 83-85, 884-886. in judgment against an unnotified absentee, where, 885, 886. when insolvency proceedings are pending, 678. STOCKS IN CORPORATIONS — in general, 457, 45S, 464-468. how attached, 291, 457. held in trust, 458. situs of shares, 459, 464-468. efifect of notice as to garnishment, 458. SUBROGATION — of the creditor to the debtor's claim, 477, 478. SUMMONS — in general, 197-203. in ordinary form, 197. may cure defect of writ, how, 198. unnecessary, when, 198. seizure no substitute for, 198. personal, 199. may be made after the writ of attachment has been issued, 53. before le\y, 199. after levy, when, 199. need not be in both personal and ancillary action, 199. not substituted by writ, 200, 201. directed to the defendant, 200. amended nunc j^ro tunc, when, 200. relative to attachment, 201. presumption as to service, 325. as to time for appearance, 202, 295. returned erroneously, 203. issued with the writ, 204. waiver of, 658. T52 isDEx. The references are to sections. SUMMONS (continued) — defects of, ground for motion to dissolve, 688. defects of service of, ground for motion to dissolve, 688. of corporation, in garnishment, 444. SUNDAY (see Day) — attachments not issued on, 217. not counted among the days of time for appearance, when, 295. SUPERSEDEAS (see Appeal). SURETY — may move to dissolve attachment, when, 675. on indemnity bond, how bound, 245. on attachment bond, as to amendments to the pleadings, 91. on sheriff's bond, liable to damages, when, 310, 979. on forthcoming bond, liable when, 758. not liable, when, 757. liability for goods destroyed, 746. must pay value, when, 759, 760. cannot replevy, when, 992. on dissolution bond, how bound, 763, 770. may be a claimant, where, 825. how affected by principal's bankruptcy, 771. how case affected by surety's faihire, 772. when bond is invalid, 773. when pleadings are changed, 774-6. when deemed a party» 777. how affected by mistake in the bond, 777. how affected by subsequent judgment that attachment was void, 717. on constable's bond liable for tortious taking under the writ, 979. SURRENDER (see Assignment). SURVIVING PARTNER — may treat firm assets as his own, when, 72. as to the garnishment of his late firm's debtors, 379. T. TERRITORIAL LIMITS (see Jurisdiction). TICKET AGENT — not garnishable as the servant of a corporation, 455. TORT — claim for, not cause of attachment action unless made such by statute, 102. unless particulars be stated in the affidavit, when, 126. TOWNSHIP — as to garnishment, 437. INDEX. 753 The references are to sections. TRAVERSE OF ATTACHMENT (see Dissolution op Attachment). TRESPASS — by attaching firm's property for a member's debt, 251. -without authority, 968, 987. exempt property, 308. not when a second levy is laid on the first, 308. not when officer obeys a valid order, 300, 308-9. should not be committed. 299. when excusable, 306. TRICKERY — invalidates attachment, when, 301. TRUSTEE — of naked trust, 366. under deed of trust, 401. of absconding debtor's property, 882-8. TRUSTEE PROCESS (see Garnishee; Garnishee's Disclosure; Gar- nishment AS to Liability). TRUST FUND — not garnishable^ 365-7. UNDERTAKING (see Bond). u. V. VACATION OF ATTACHIMENT (see Dissolution of Attachment). VARIANCE — between petition and affidavit, 79. VENDOR — when liable to attachment of property nominally sold, 256, VENDEE (see Purchaser). VOLUNTARY BOND (see Common-law Bond). w. WAGES — when exempt, 741, 742. when not susceptible to garnishment beyond the debtor's state, 744, 745. when the attachment has been dismissed, 833. T54: INDEX. The references are to sections. WAIVER — of summons or notice by general appearance of defendant, 665. not by garnishee, 492. by bonding, 751. as to effect of dissolution bond, 712-716. execution under personal judgment while appeal from dissolution of attachment is pending, 906. of exemption, 724. not by failing to plead, where, 730. not binding when general renunciation of a right, 734. by absconding, 735. in garnishment by not claiming, when, 737. WARRANTY — not of title in attachment sales, 868. stipulation, 876. of sheriff by the plaintiff, 969. WIFE (see Married Woman). WRIT — of attachment, see Writ of Attachment. of fieri facias, does not override a writ of attachment, 219. is partly superfluous in attachment cases, 908-910. is commonly employed for attachment sales, 911. cannot retroact so as to give jurisdiction, 652. of certiorari, to set execution aside when judgment is joint against the defendant and the garnishee, 929. to reverse judgment based on false affidavit, 701. to set garnishment order aside, 738. of error, may be sued out by garnishee, when, 924. prevents immediate restoration, 918. of garnishment, is issued in some states, 483-85. is generally included in the attachment writ, 483. as to the names of the persons to be garnished, 484. when lost, garnishment falls, 485. how constituted, 485. may be served before notice to defendant, 486. of injunction, to prevent garnishing in other than the debtor's state, 743. of mandamus, not employed to compel trial court to dissolve attach- ment, 710. of possession, to recover attached property after the officer has been di- vested, 594-5. of replevin, see Replevin. of scire facias, to controvert garnishee's answer, 514. of venditioni exponas when attached property is to be sold, 909. and attachment equal fi. fa., 910. employed in proceedings in rem, 909. INDEX. i an The references are to sections WRIT OF ATTACHMENT (see Return TO Writ of Attachment) — in general, 204-236, 856-859. service of copy, 197. aided by summons, how, 198. not dependent on failure to find the defendant, 204, 206. may be granted after verdict in the personal action, 204. should be as though suit in rem only, 207. issued by the clerk of court, 208. issued improvidently, 701. issuance a judicial act ministerially performed, 208, 21*0, 217, 218. how subscribed in New York, 208, note 1. how issued in certain states, 208, note 1. presumably issued by the court, 209. issued under statutory authorization, 211. issued in a county other than that of the affidavit, when, 311. should contain what, 212, 213. should correspond with the affidavit, 212, 215. with essentials omitted, void, 213. must state time to return, 213. returned to what court, 214. delivery of, to the officer, 216. by hands of the plaintiff, 216. not on a dies non, 217. may be in court vacation, 218. amendments to, 220-226. not made after levy, 220, 221. as to junior attachers, 221. when allowed between parties, 858, 859. after service, how and when, 222. not retroactive, when, 222. wrongly directed, 225. alias, when issued, 226. as to property, 227-281. like an execution, how, 227, 228. limited to liable property, 229. as to national banks, 230, 231. protects the officer, when, 232. when not, 232, 233. not executed against mortgaged property, when, 235, 236. when to be executed, 292-295. want of, or defect of, is ground for dissolving attachment, 695. when issued improvidently, 701. when void, renders sale void, 856. cannot be legally served by one interested as a party, 302. executed by sheriff, he may call the plaintiff in warranty, when, 969. WRONGFUL ATTACHMENT (see Damages Against the ATTAcmNO Creditor; Damages Against the Attaching Officer). 756 INDEX. The references are to sections. Y, YEAR AND A DAY — allowed the absent debtor to come and defend under custom of Lon- don, 206, 881. of delay when final judgment cannot be rendered. 622. allotted absent defendant to sue for dividends allowed creditors by auditors, 883. having expired before sale, the creditor need not give bond, where, 884. not having expired, sale without bond held void, 885. as to stay order and time of delay for a year or less, 885, 886. iv2 ^^oxm ^OFCA S 3 y^wS ' ifh CI 5 3 2 s 171 >- i i —3 CIS ^-tfOJnVDJO'^ "^^ 'IJOKVSOl^^ o UNIVERJ/^ is 2 - f f JONVSOl^ •^J-;^ ^jOfCAll ^ UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 851 510 8 ^. WIIVDJO"^ ^,. UNIVtKi/^ l(- o •UNIVERS//^ JONVSOV^^ IRpflf "•^a- ^^^^llRl?ARY/>.■: WlIFO/i'tv ilVDJO"*^ '%] -">-". .yt MvjVf- y< >?/